Kerala High Court
Xxxxx vs Union Of India on 2 September, 2022
Author: V.G.Arun
Bench: V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
Friday, the 2nd day of September 2022 / 11th Bhadra, 1944
WP(C) NO. 27811 OF 2022
PETITIONER:
XXXXX XXXX
RESPONDENT:
1. UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF WOMAN AND
CHILD DEVELOPMENT, SHASTRI BHAVAN, NEW DELHI-110001.
2. STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF WOMEN
AND CHILD DEVELOPMENT GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
3. STATION HOUSE OFFICER/INSPECTOR OF POLICE, ADIMALI POLICE STATION,
IDUKKI-685561.
4. SAT HOSPITAL, REPRESENTED BY ITS SUPERINTENDENT, MEDICAL COLLEGE
HOSPITAL, KUMARAPURAM P.O THIRUVANTHAPURAM-695011.
5. CHILD WELFARE COMMITTEE, REPRESENTED BY ITS CHAIRPERSON.
THIRUVANTHAPURAM, GOVERNMENT CHILDREN'S HOME, POOJAPPURA,
THIRUVANTHAPURAM-695012.
6. THE HOME MANAGER, INTEGRATED CHILD CARE HOME, NETTAYAM P.O,
THIRUVANANTHAPURAM-695013.
Writ petition (civil) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(C) the High Court be
pleased to direct 4th respondent to constitute a Medical Board of
competent medical practioners, to examine the stage of pregnancy of
petitioner's minor daughter and file a report to this Hon'ble Court,
forthwith, during the pendency of this writ petition.
This petition again coming on for orders upon perusing the
petition and the affidavit filed in support of WP(C) and this Court's
order dated 26-08-2022 and upon hearing the arguments of SMT.RESMI
NANDANAN, Advocate for the petitioner, the court passed the following:
V.G.ARUN (J)
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W.P.(C) No. 27811 of 2022
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Dated this the 2nd day of September, 2022
ORDER
The petitioner's daughter, a minor girl aged 15 years is pregnant by 29 weeks. The incredulous but harsh truth is that the girl is impregnated by rape. The physical strain of carrying a pregnancy at such a young age and the psychological impact and consequent mental stress are projected as reasons for seeking this Court's intervention and a direction to terminate the pregnancy medically.
2. When the writ petition came up for admission, it was directed to constitute a Medical Board for examining the victim girl. Responding with promptitude, the 4th respondent constituted the Medical Board and has made available the Medical Board's report. The relevant portion of the Medical Board's opinion is as follows;
W.P.(C) No.27811 of 20222
"Medical Board Opinion Neonatology Opinion As per the USS done on 29.08.2022, 29 weeks 0 days,estimated fetal weight is 1274+ or -189 g, if terminated now there is a 60-70% chance of survival of the baby if born alive. There is increased risk of neonatal morbidity like respiratory distress syndrome and need for invasive ventilation and baby will require prolonged NICU stay. There is also risk of adverse neuro developmental outcome for the baby like retinopathy of prematurity, chronic lung disease, necrotizing enterocolitis and intra ventricular bleed. If termination planned suggest complete course of antenatal steriods. We are ethically and medico legally bound to give full medical attention to the new born infant. Ultrasound on 29.08.2022 shows AFI 12 cm at 29 weeks 0 days of gestation and estimated fetal weight 1274+ or - 189 gm. No anomalies in previous scans.
Gynaecology Opinion Having examined the 15 yr old victim found her in good general condition, oriented with stable vitals, obstetric examination revealed 28-30 weeks of gestation which corresponds to the ultrasound findings. As per the ultrasound on 29.08.2022 SLIUG, 29 weeks 0 days, cephalic presentation, estimated fetal weight, 1.274+ or
- 189 gm, AFI 12. The decision for termination may be taken by the Hon'ble Court and we will W.P.(C) No.27811 of 2022 3 comply with the decision thereof. Psychiatry Opinion Patient is of average intelligence clinically and express her wish to terminate the pregnancy as she wants to continue her studies and it is causing her severe psychological stress. She is aware of the risks involved in the proceudre and is willing to undergo the procedure. Patient's mother also express her willingness to terminate the pregnancy.
3. Adv. Resmi Nandanan, learned Counsel for the petitioner, submitted that this Court should consider the physical strain and mental stress being suffered by the young girl and the possible social ostracisation that the girl and her family will have to face. Reliance is placed on the Division Bench decision of this Court in ABC v. Union of India [2020 (4) KLT 279] and that of a learned Single Judge in W.P.(C) No.7503 of 2022 to contend that under identical circumstances, this court had granted the permission sought for.
4. Adv.Amminikutty, learned Government Pleader, submitted that, under the Medical Termination of W.P.(C) No.27811 of 2022 4 Pregnancy Act, 1971 ('the Act' for short), the maximum permissible gestational period is 24 weeks. In the instant case, the pregnancy has crossed 29 weeks. Being so, the findings of the Medical Board assume relevance. Reference is made to Section 3 (1)(2-B) of the Act to point out that there can be an exemption from the maximum time limit prescribed under the Act only in cases where the termination is necessitated by the diagnosis of any substantial, foetal abnormality by a Medical Board.
5. The law on medical termination of pregnancy is governed by the Medical Termination of Pregnancy Act, 1971. Sections 3, 4 and 5 being contextually relevant are extracted hereunder;
"3. When pregnancies may be terminated by registered medical practitioners.--(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.
(2) Subject to the provisions of sub-section W.P.(C) No.27811 of 2022 5 (4), a pregnancy may be terminated by a registered medical practitioner,--
(a) where the length of the pregnancy does not exceed twenty weeks, if such medical practitioner is, or
(b) where the length of the pregnancy exceeds twenty weeks but does not exceed twenty-four weeks in case of such category of woman as may be prescribed by rules made under this Act, if not less than two registered medical practitioners are, of the opinion, formed in good faith, that--
(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or
(ii) there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.
Explanation 1.--For the purposes of clause (a), where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman. Explanation 2.--For the purposes of clauses (a) and (b), where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy shall be W.P.(C) No.27811 of 2022 6 presumed to constitute a grave injury to the mental health of the pregnant woman.
(2-A) The norms for the registered medical practitioner whose opinion is required for termination of pregnancy at different gestational age shall be such as may be prescribed by rules made under this Act. (2-B) The provisions of sub-section (2) relating to the length of the pregnancy shall not apply to the termination of pregnancy by the medical practitioner where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board.
(2-C) Every State Government or Union territory, as the case may be, shall, by notification in the Official Gazette, constitute a Board to be called a Medical Board for the purposes of this Act to exercise such powers and functions as may be prescribed by rules made under this Act.
(2-D) The Medical Board shall consist of the following, namely--
(a) a Gynaecologist;
(b) a Paediatrician;
(c) a Radiologist or Sonologist; and
(d) such other number of members as may be notified in the Official Gazette by the State Government or Union territory, as the case may be.] (3) In determining whether the continuance of W.P.(C) No.27811 of 2022 7 pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken of the pregnant woman's actual or reasonably foreseeable environment. (4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a mentally ill person, shall be terminated except with the consent in writing of her guardian.
(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman."
Careful scrutiny of Section 3, with particular reference to sub-section 2 and Explanation I thereunder shows that medical termination of pregnancy can be permitted up to 24 weeks, if continuance of the pregnancy would involve risk to the life of the pregnant woman or grave injury to her physical or mental health. Going by Explanation II, i a case in which pregnancy is alleged to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. In this context, it may also be appropriate to read Rule 3B of the Medical Termination of W.P.(C) No.27811 of 2022 8 Pregnancy Rules, 2003. Under Rule 3B, specific categories of women are to be considered eligible for termination of pregnancy under Clause (b) of sub-section (2) of Section 3 of the Act. This category of women includes survivors of sexual assault or rape, or incest, as also minors. In the case at hand, the victim is a rape survivor and a minor.
6. Taking cue from the above provisions, I lean in favour of the victim while being conscious of the rights of the unborn baby. It is pertinent to note that a woman's right to make reproductive choices is recognised as part of her personal liberty under Article 21, subject of course to reasonable restrictions. The Division Bench has considered these aspects in ABC v. Union of India [2020 (4)) KLT 279] while granting permission for medical termination to a minor girl whose pregnancy had progressed to the 24th week. A similar view was taken by a learned Single Judge in W.P.(C) No.7503 of 2022, wherein the pregnancy had crossed 26 weeks. The Apex Court in X v. Union of India and others [(2020) 19 SCC 806], wherein also, the W.P.(C) No.27811 of 2022 9 pregnancy was permitted to be terminated considering the age of the victim girl. The Apex Court considered the trauma the girl had suffered because of the sexual abuse and the agony she was going through and the medical board's report. This Court also had occasion to consider the case of a 15 year old victim girl. The pregnancy in that case, which had crossed 24 weeks, was permitted to be terminated after considering all relevant aspects. Here also, on consideration of the physical difficulties, mental agony and opinion of the Medical Board, I am inclined to allow the prayer for medical termination of the pregnancy.
Considering that each days delay will add to the victim's agony, and being of opinion that the above directions would ensure that the baby, if born alive, is not abandoned at birth, the following directions are issued;
(i) The petitioner is permitted to get the victim girl's pregnancy terminated at a Government Hospital.
(ii) On production of this order the Superintendent of the hospital shall take immediate measures for constituting W.P.(C) No.27811 of 2022 10 a medical team for conducting the procedure.
(iii) The petitioner shall file an appropriate undertaking, authorising to conduct the surgery at her risk.
(iv) If the baby is alive at birth, the hospital shall ensure that the baby is offered the best medical treatment available, so that it develops into a healthy child;
(v) If the petitioner is not willing to assume the responsibility of the baby, the State and its agencies shall assume full responsibility and offer medical support and facilities to the child, as may be reasonably feasible, keeping in mind the best interests of the child and the statutory provisions in the Juvenile Justice (Care and Protection of Children) Act, 2015.
Sd/-
V.G.ARUN JUDGE RK 02-09-2022 /True Copy/ Assistant Registrar