Kerala High Court
Bency S vs State Of Kerala on 5 November, 2020
Author: P.V.Asha
Bench: P.V.Asha
WP(C).No.23775 OF 2020
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
THURSDAY, THE 05TH DAY OF NOVEMBER 2020 / 14TH KARTHIKA, 1942
WP(C).No.23775 OF 2020(V)
PETITIONER/S:
1 BENCY S, AGED 28 YEARS, W/O. JIBIN JESMAN,
METHAPALAPARAMBU, KOOTTAPPANA, NEYYATTINKARA P.O,
THIRUVANANTHAPURAM DISTRICT PIN 695 121
2 JIBIN JESMAN,
AGED 32 YEARS
S/O. JESMAN E.P, THENGUVILA HOUSE, CHERUNNIYOOR
P.O, THIRUVANANTHAPURAM DISTRICT PIN 695 142
BY ADVS.
SRI.T.R.HARIKUMAR
SRI.ADITHYA RAJEEV
SHRI. GIRISH KUMAR M S
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY SECRETARY, MINISTRY OF CHILD
WELFARE, THYCAUD, THIRUVANANTHAPURAM PIN 695 014
2 THE DIRECTOR OF MEDICAL EDUCATION,
DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE
P.O, THIRUVANANTHAPURAM PIN 695 011
3 THE SUPERINTENDENT OF GOVERNMENT MEDICAL COLLEGE
HOSPITAL,
MEDICAL COLLEGE P.O, THIRUVANANTHAPURAM PIN 695 011
4 THE HEAD OF DEPARTMENT,
SREE AVITTAMTHIRUNNAL HOSPITAL (SAT HOSPITAL),
MEDICAL COLLEGE HOSPITAL, MEDICAL COLLEGE P.O,
THIRUVANANTHAPURAM 695 011
OTHER PRESENT:
SMT.PRINCY XAVIER, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
05.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.23775 OF 2020
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JUDGMENT
Dated this the 5th day of November 2020 The petitioners are husband and wife. They have filed this Writ Petition producing Exts.P2 to P5 scan reports/other medical records in respect of the 1st petitioner and seeking a direction to the respondents to carry out medical termination of pregnancy of the 1st petitioner. Ext.P5 report from SAT Hospital, Thiruvananthapuram, detected severe abnormalities in the fetus viz.Pseudo Dextrocardia, Congenital Diaphragmatic Hernia (left side), Severe Bilateral Ventriculomegaly, Obliterated Posterior Fossa, Arnold Chiarri Malformation, Thoracolumbar Meningomyelocoel and Open Neural Tube Defect (ONTD). Ext.P5 would show that the 1st petitioner is 28 years' old and the gestation age of the fetus was 24 weeks and 1 day as on 31.10.2020.
2. When the matter came up for admission on 04.11.2020 this Court passed an interim order directing the 4 th respondent to constitute a Medical Board and to examine the 1st petitioner and to report the matter through the learned Government Pleader.
3. The Medical Board was accordingly constituted and the report is made available to this court by Smt.Princy Xavier, the learned Government Pleader. It is stated that the 1st petitioner was examined on 04.11.2020 by a Medical Board, constituted with WP(C).No.23775 OF 2020 3 the following members :
1. Dr.A.Santhosh Kumar, Superintendent, SATH, Govt. Medical College, Trivandrum.
2. Dr.Sreelatha S., Associate Professor, Dept of O&G, SATH
3. Dr.Adma Harshan, Asso.Professor, Dept of O&G, SATH
4. Dr.Radhika, Asso.Professor, Department of Neonatology
5. Mary Iype, Professor, Pediatric Neurogloy
7. Dr.Priyasree J, RMO, Gynecology.
The report of Medical Board reads as follows:
"Report of the Medical Board Mrs. Bency S. 25 yr old w/o Jibin Jesman residing at Cherunniyoor referred from Sradha Fetal Medicine Clinic from SAT at T1 POG 24 wks 1 day as on 31.10.2020 with targeted anomaly scan showing multiple fetal anomalies. She is a primi gravid with regular antenatal check up from DH Neyyattinkara till 20 wks. She had a uncomplicated antenatal period and was taking regular iron, folic acid and calcium supplement.
TIUSS (Dating Scan) LMPGA- 9wks 3 days
20.07.2020 SLIUG-8 wks
T1EDC = 19.02.2021
NT scan Normal
17.08.2020 LMPGA-13 wks 3 dyas
USS GA -11wks 6 days
NT=1.4mm, Nasal Bone
seen
Anomaly Scan (From LMPGA -22wks 3 days
outside SAT) SLIUG-20 wks 6 days
19.10.2020 Congenital diaphragmatic
hernia
Suspected
ventriculomegaly
She was referred to Sradha Clinic (SAT) for targeted anomaly scan. Its findings are as follows:
Targeted Anomaly Pseudo Dextrocardia Scan(31.10.2020) Congenital diaphragmatic hernia left side.
Severe bilateral
ventriculomegaly.
Obliterated posterior
fossa.
WP(C).No.23775 OF 2020
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Arnold chiari
malformation
Thoraco lumbar
meningomyelocele.
Open Neural tube defect
Placenta-fundal
All these features are suggestive of lethal fetal anomaly and since she has crossed legal limit MTP, Medical Board convened.
Opinion of Medical Board Poor prognosis was explained by both neonatologist and fetal medicine specialist. Since she has crossed 20 wks which is the legal limit of termination of pregnancy the Honourbale Court has to give a directive for medical termination of pregnancy.
4. In view of the aforesaid opinion of the medical Board, having detected grave abnormalities in the fetus which has potential harmful psychological consequences to the mother and child in the event of continuation of pregnancy, I deem it necessary to permit the petitioners to get the pregnancy of 1st petitioner terminated.
5. Eventhough Section 3(2) of the Medical Termination of Pregnancy Act, 1971 permits termination of pregnancy with a duration upto twelve weeks only, Section 5 permits the same when the Medical Board find that the termination is necessary to save the life of pregnant mother.
6. The Apex Court has in similar circumstances, in the judgment in Sarmishtha Chakrabortty v. Union of India: (2018) 13 SCC 339, permitted termination of pregnancy when the WP(C).No.23775 OF 2020 5 gestational age was 26 weeks, in view of the recommendation of the Medical Board and the medical report revealing the threat of severe mental injury to the woman and to the multiple complex problems to the child, if born alive, involving complex cardiac corrective surgery stage by stage after birth, in the event of continuation of the pregnancy. In Meera Santosh Pal v. Union of India: (2017) 3 SCC 462 also permission was granted when the pregnancy crossed 24 weeks, in view of the medical reports pointing out the risk involved. This Court also in ABC V Union of India : 2020(2) KHC 526, permitted termination of pregnancy in order to save the life of the pregnant woman who was in physical as well as mental trauma. In the judgment reported in Neethu Narendran V State of Kerala: 2020(3)KHC 157 also this Court permitted termination of pregnancy when gestational age crossed 23 weeks. In view of the medical report furnished in the present case, I deem it necessary to permit termination of pregnancy of the 1st petitioner.
Therefore having regard to the urgency involved in the matter, there shall be a direction to the Superintendent of SAT Hospital, Thiruvananthapuram- and the 4th respondent to see that the termination of pregnancy of the 1st petitioner is carried out at the earliest point of time, if possible today itself, by competent doctors under their supervision, in accordance with the provisions of the Medical Termination of Pregnancy Act,1971, its rules and all other rules, regulations and guidelines WP(C).No.23775 OF 2020 6 prescribed for the purpose.
Accordingly the Writ Petition is allowed.
Sd/-
P.V.ASHA
rkc JUDGE
WP(C).No.23775 OF 2020
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APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE CERTIFICATE OF MARRIAGE
DATED 23-05-2018, ISSUED BY THE DEPARTMENT OF URBAN AFFAIRS, GOVERNMENT OF KERALA EXHIBIT P2 A TRUE COPY OF THE EARLY ANTENATAL SONOGRAPHY DATED 20-07-2020 ISSUED BY VENAD SCANS AND LABORARARY, NEYYATTINKARA EXHIBIT P3 A TRUE COPY OF THE EARLY ANTENATAL SONOGRAPHY DATED 17-08-2020 ISSUED BY VENAD SCANS AND LABORATORY, NEYYATTINKARA EXHIBIT P4 A TRUE COPY OF THE ROUTINE OBSTETRIC SCAN DATED 19-10-2020 ISSUED BY DR. RAVIKUMAR, SONOLOGIST, RRO COLOUR DOPPLER SCANS, THIRUVANANTHAPURAM EXHIBIT P5 A TRUE COPY OF THE OB-2/3RD TRIMESTER SCAN REPORT DATED 31-10-2020 ISSUED BY THE SRADHA FETAL MEDICAL CLINIC, CHILD DEVELOPMENT CENTRE AND DEPARTMENT OF OBG, SAT HOSPITAL, MEDICAL COLLEGE, THIRUVANANTHAPURAM EXHIBIT P6 A TRUE COPY OF THE CASUALTY OUTPATIENT RECORD DATED 31-10-2020 ISSUED BY THE SAT HOSPITAL, MEDICAL COLLEGE, THIRUVANANTHAPURAM