Afja S. H. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** ## **MONDAY, THE 25TH DAY OF JANUARY 2021 / 5TH MAGHA, 1942** ## **WP(C).No.1319 OF 2021(L)** ## **PETITIONER:** **AFJA S. H. AGED 32 YEARS W/O. NAWAB, HOUSE NO.1/1961, YMACA ROAD, FORT KOCHI, PIN - 682 001, ERNAKULAM DISTRICT.** **BY ADVS. SRI.P.T.MOHANKUMAR SRI.GEORGE CHERIAN** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF WOMEN AND CHILD DEVELOPMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **2 THE DISTRICT MEDICAL OFFICER OFFICE OF THE DMO - ERNAKULAM, ERNAKULAM - 682 011.** - **3 THE SUPERINTENDENT GOVERNMENT MEDICAL COLLEGE HOSPITAL, KALAMASSERY, ERNAKULAM, PIN - 683 503.** - **4 DIRECTOR DEPARTMENT OF GYNAECOLOGY AND OBSTETRICS, ASTER MEDICITY, SOUTHE CHITOOR P. O., CHERANALLOOR, KOCHI - 682 027.** - **5 THE SUPERINTENDENT THE GOVERNMENT GENERAL HOSPITAL, ERNAKULAM, PIN - 682 011.** - **6 ADDL. 6TH RESPONDENT THE SUPERINTENDENT, GOVERNMENT T.D., MEDICAL COLLEGE HOSPITAL, ALAPPUZHA IS SUOMOTU IMPLEADED AS PER ORDER DATED 2201.2021 IN WPC NO.1319/2021** ## **GP-- SMT PRINCY XAVIER .** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.1319/2021 2 ## **JUDGMENT** The petitioner has filed this Writ Petition producing Exts.P1 to P6 scan reports/medical opinion seeking a direction to the respondents to carry out medical termination of her pregnancy. The scan reports would show severe abnormalities to the fetus. The gestation age of the fetus was 20 weeks and 5 days as on 15.01.2021. She has also produced Ext.P7 e-mail by which her husband, who is a sailor, has given consent for termination of pregnancy. 2. When the matter came up for admission on 18.01.2021 this Court passed an interim order directing the 5[th] respondent to constitute a Medical Board to examine and report the medical condition of the petitioner and the fetus. 3. However, on 22.01.2021 when the matter came up for consideration, the learned counsel for the petitioner made available a copy of the Government Order dated 31.12.2020 by which the Government has constituted a Medical Board for examining the cases of MTP where gestation period exceeded 20 weeks. Therefore, the Superintendent, Government T.D. WP(C).No.1319/2021 3 Medical College Hospital, Alappuzha was impleaded as additional 6th respondent and direction was issued to examine the petitioner and to make available the report. 4. Smt.Princy Xavier, the learned Government Pleader, has made available the report of the medical board which would show that the medical board was convened on 23.01.2021 with the following members: _1. Dr. R.V.Ramlal, Chairman & Superintendent 2. Dr.Sathiamma P K, Prof.OBG Dept 3. Dr.Jayaram Sankar K R, Asso Prof Paediatrics Dept_ _4. Dr.Suma Job, Asso Prof Radiodiagnosis Dept_ _5. Dr.Baiju R, Addl Prof Cardiology Dept 6. Dr.P S Shajahan, Addl Prof Pulmonary Medicine Dept_ _7. Dr.Shaji C V, Prof & HOD Neuromedicine Dept_ _**8. Dr.Rema Priyadarsini, Prof & HOD Pathology**_ 5. The report of the medical Board state as follows: “ _Foetal heart shows prominent aorta, small pulmonar artery, and VSD. Features consistent with fetal echo findings of tetrology of fallot with pulmonary stenosis._ ## _Impression_ _Singly live intrauterine fetus with average gestational age 21 weeks 6 days with fetal echo findings_ WP(C).No.1319/2021 4 _of tetrology of fallot with pulmonary stenosis.”_ ## In the report it is also stated as follows: _The Medical Board Clinically assessed the patient and obstetric ultrasound was done (Report attached). We have also gone through the medical records made available by the Hon.High Court of Kerala and reached the following conclusions._ _Mrs.Afja is a case of two previous Cesarean sections. Clinically, now the uterine size corresponds to 20 weeks and sonologically 21 weeks 6 days which corresponds to the period of amenorrhea. Sonologically, fetus has got features of Tetrology of Fallot with pulmonary stenosis._ _Mrs Afja is mentally upset regarding the continuation and outcome of pregnancy. She has no other co morbidities which contra indicate MTP except for the risk related to previous two Caesarean sections._ _The above medical condition of the fetus as such is scientifically not an indication for MTP. However, since this pregnancy is less than 24 weeks of gestation and considering the mental anguish of the patient and her social status, as per The MTP Act amended in 2020, MTP may be considered for her.”_ 6. As per Section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971, termination of pregnancy is permissible where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are, of opinion, formed in WP(C).No.1319/2021 5 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 such physical or mental abnormalities as to be seriously handicapped. As per section 5 of the Medical Termination of Pregnancy Act, termination of pregnancy is permissible even in cases where the period of gestation exceeds the period prescribed in Section 3 and 4 of the Act, which reads as follows: _“5. S.3 and S.4 when not to apply. - (1) The provisions of S.4 and so much of the provisions of subsection (2) of S.3 as relate to the length of the pregnancy and the opinion of not less than two registered medical practitioner, shall not apply to the termination of a pregnancy by the registered medical practitioner in case where he is of opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman.”_ 7. 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 gestational age was 26 weeks, in view of the recommendation of the medical board and the medical report WP(C).No.1319/2021 **==> picture [8 x 9] intentionally omitted <==** 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 in which the gestations age of the fetus is shown as 21 weeks 6 days, I deem it necessary to permit termination of pregnancy of the petitioner. 8. Therefore, having regard to the urgency involved in the matter, there shall be a direction to the additional 6th respondent to see that the termination of pregnancy of the petitioner is carried out at the earliest point of WP(C).No.1319/2021 7 time, by competent doctors, in accordance with the provisions of the Medical Termination of Pregnancy Act, 1971, its rules and all other rules, regulations and guidelines prescribed for the purpose. 9. In case the child is born alive, in the process of medical termination of the pregnancy, the doctors shall ensure that everything, which is reasonably possible and feasible in the circumstances and in contemplation of the law prescribed for the purpose, is offered to such child so that he/she develops into a healthy child. The Writ Petition is allowed accordingly. **Sd/-** **P.V.ASHA JUDGE** rtr/ WP(C).No.1319/2021 8 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE PHOTOSTAT COPY OF THE ULTRASOUND SCAN REPORT DATED 06.01.2021 PREPARED BY DR. PARVATHY RAJENDRAN, THE CONSULTANT RADIOLOGIST.** - **EXHIBIT P2 TRUE COPY OF THE SCAN REPORT DATED 12.01.2021 PREPARED BY DR. UNNIKRISHNAN R., CONSULTANT RADIOLOGIST.** - **EXHIBIT P3 TRUE COPY OF THE FOETAL ECO REPORT DATED 14.01.2021 PREPARED BY DR. AMITOZ SINGH BAIDWAN, CONSULTANT RADIOLOGIST.** - **EXHIBIT P4 TRUE COPY OF THE SCAN REPORT DATED 15.01.2021 PREPARED BY DR. BIJOY K. BALAKRISHNAN, CONSULTANT GYNECOLOGIST AND DR. MEENU BATRA PARASURAM, CONSULTANT RADIOLOGIST.** - **EXHIBIT P5 TRUE COPY OF THE LETTER DATED 15.01.2021 BY THE PANEL OF 3 DOCTORS OF CIMAR FERTILITY CENTRE, EDAPPALLY, ERNAKULAM.** - **EXHIBIT P6 TRUE COPY OF THE CERTIFICATE DATED 15.01.2021 ISSUED BY DR. SHAMEEMA ANVARSADATH, SENIOR CONSULTANT, OBSTETRICIAN AND GYNECOLOGIST, ASTER MEDICITY, ERNAKULAM.** - **EXHIBIT P7 TRUE COPY OF THE EMAIL COMMUNICATION DATED 17.01.2021 BY PETITIONER'S HUSBAND TO THE COUNSEL.** RESPONDENTS EXIBITS : NIL //TRUE COPY// PA TO JUDGE