MRS A v Union of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **FRIDAY, THE 18TH DAY OF SEPTEMBER 2020 / 27TH BHADRA, 1942** ## **WP(C).No.18874 OF 2020(H)** ## **PETITIONER:** **MRS A (IDENTITY MAY NOT BE PUBLISHED AS PER SUPREME COURT GUIDELINES)** **BY ADV. SRI.NIDHI BALACHANDRAN** ## **RESPONDENTS:** - **1 UNION OF INDIA, REPRESENTED BY IT'S SECRETARY TO GOVERNMENT, MINISTRY OF WOMEN AND CHILD DEVELOPMENT, SHASTHRI BHAVAN, NEW DELHI 110 001.** - **2 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF WOMEN AND CHILD DEVELOPMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **3 DIRECTOR OF MEDICAL EDUCATION, MEDICAL COLLEGE, KUMARAPURAM ROAD, CHALAKKUZHI, THIRUVANANTHAPURAM - 695 001.** - **4 THE STATION HOUSE OFFICER, RANNY POLICE STATION, PATHANAMTHITTA - 689 672.** - **5 DISTRICT WOMEN AND CHILD DEVELOPMENT OFFICER, KAPPIL ARACADE, IIND FLOOR, DOCTORS LANE, PATHANAMTHITTA - 689 645. (EMAIL-WCDPTA@GMAIL. COM.).** - **6 THE SUPERINTENDENT , DISTRICT HOSPITAL, PATHANAMTHITTA, THIRUVALLA - KUMBAZHA HWY, KOZHANCERRY EAST, PATHANAMTHITTA 689 641.** - ***ADDL. R7 THE DISTRICT MEDICAL OFFICER, PATHANAMTHITTA.** - ***ADDL. R8 THE MEDICAL SUPERINTENDENT, GENERAL HOSPITAL, PATHANAMTHITTA** W.P.(C) No.18874 of 2020 2 *** ADDL.R7 AND ADDL.R8 ARE SUO MOTU IMPLEADED AS PER ORDER DATED 15-09-2020 IN W.P.(C).** ***ADDL. R9 THE SUPERINTENDENT, MEDICAL COLLEGE, KOTTAYAM** *** ADDL.R9 IS SUO MOTU IMPLEADED AS PER ORDER DATED 18-09-2020.** **BY ADVS. SRI.P.VIJAYAKUMAR, ASGI** **SMT.VINEETHA B.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.18874 of 2020 3 ## **P.V.ASHA J.** **---------------------------------** ## **W.P.(C) No.18874 of 2020** **---------------------------------** Dated this the 18[th] day of September, 2020 ## **JUDGMENT** The mother of an unfortunate rape victim, who is a minor girl has approached this Court pointing out that the girl is carrying 23 weeks of pregnancy and continuation of her pregnancy would be critical to her health and contrary to her interest. A Crime no.1486/2000 has been registered in respect of the incident. The writ petition is filed producing Ext.P2 Ultrasound scan report dated 24.8.2020, which found that the girl was having 20 weeks and 5 days of pregnancy. It is stated that victim girl is not mentally prepared to accept the pregnancy and that there is increased risk of all obstetric complications in the event of continuation of her pregnancy as she has been subjected to brutal sexual assault. W.P.(C) No.18874 of 2020 4 2. When the matter came up for admission on 15.09.2020, this Court passed an interim order directing the Superintendent of District hospital, Pathanamthitta to constitute a medical board including a psychiatrist also and to furnish a report on the following: _“(i) Whether the continuance of the pregnancy involves risk to the life of the pregnant child or of grave injury to her physical and mental health ;_ _(ii) Whether there is substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped ;_ _(iii) Whether having regard to the advanced stage of pregnancy, there is any danger (other than the usual danger which arises even in spontaneous delivery or at the end of the full term) if the pregnant victim is permitted to terminate her pregnancy ;_ _(iv) The medical process best suited to terminate the pregnancy and the possibility of the child be born alive in the process ;_ _(v) The wishes of the minor child as regards the future course of action with respect to her pregnancy._ _(vi) Any other issues the Medical Board regards as relevant in such matters.”_ W.P.(C) No.18874 of 2020 5 3. The learned Government Pleader made available the report received from the District Medical Officer of Health, Pathanamthitta and the report reads as follows: _“The medical board examined the 16 year old minor girl, daughter of Mrs.A the petitioner, as per the order of The Honourable High Court of Kerala No:WP(C)18874 OF 2020 dated 15.9.20 and following suggestions are submitted._ _The girl is a minor of 16 years old. Her last menstrual period was on 14/02/20(Wrong LMP date). Her vitals are stable, pulse rate 96/mt and BP 120/70 mHg. She is 23 weeks and 5 days pregnant by Ultrasound scan._ _The obstetric ultrasound study on 179-2020 showed a Single live intrauterine gestation with fetal biometry corresponding to 23 Weeks 5 days. There is no obvious anomaly. The placenta is located anterior and there is no pravia._ _The blood investigations are within normal limits._ _1. The continuation of pregnancy at the age of 16 years definitely would involve risk to the life of the pregnant girl as there is an increased_ W.P.(C) No.18874 of 2020 6 _risk of all obstetric complications including gestational hypertension, anemia, risk of operative delivery and obstetric haemorrhage. It also affects mental health adversely._ _She is evaluated by the psychiatrist in detail and observations are as follows._ _History is obtained from the mother and father which is reliable and adequate. There is family history of mental illness in second degree maternal relative. There is no past history of any psychiatric disorders. There is history suggestive of emotionally unstable personality traits. There is no history of any substance abuse. There is no history of significant mood, psychotic, anxiety symptoms. Mental status examination showed that the patient is co-operative and attentive. Rapport could be established. Eye contact, psychomotor activity and speech are normal. There are no abnormalities in the thought process. There are no hallucinations or suicidal ideas. Higher mental functions are within normal limits. From the available history and mental status examination, there is possibility of emotionally_ W.P.(C) No.18874 of 2020 7 _unstable personality traits in the patient. Hence continuing the pregnancy would involve the risk of mental health issues in the patient. The patient does not appear to have the maturity required from that of a mother-to-be._ _2. As per the obstetric ultrasound report on 17.09.20 there are no gross anomalies identified. But if pregnancy continues, there is substantial risk for the physical, mental and intellectual abnormalities to the baby, if prematurity and growth restriction occurs as it is a teenage pregnancy. If the pregnancy is terminated now, there is very rare chance of baby being born alive. And if so the baby may develop with physical and mental abnormalities as to be seriously handicapped. 3. As termination is in the second trimester, there is increased chance of prolonged induction, premature rupture of membranes, incomplete abortion, retained placenta, infection hemorrhage and genital tract injuries which may endanger the life of the minor girl. As there are remote chances of failure of the primary procedure to produce abortion within a_ W.P.(C) No.18874 of 2020 8 _reasonable time, it may need surgical interventions including instrumental extraction and even hysterotomy. There are very rare possibilities for need of an emergency surgical intervention as hysterectomy which may endanger the health of the girl and her future reproductive performance._ _4._ _Regarding the method of termination, induction starts with medical methods and depending on the progress it may need to switch over to mechanical method. She should get adequate contractions and expel the fetus spontaneously. If everything fails it may need to go for hysterectomy. However, the method of termination depend on the protocol followed by the individual institutions._ _There is a possibility that the child be born alive._ _5. On evaluation by the psychiatrist, the minor doesn't want to continue the pregnancy and she wishes to get terminated at the earliest. The - associated high risk factors have been discussed with the mother._ _6. If the decision is for termination, it should be done immediately. In view of teenage pregnancy, the termination should be done Tertiary Care Center_ W.P.(C) No.18874 of 2020 9 _with facilities for both._ _7. The Medical Board invokes the Honourable High Court to issue necessary guidelines if baby is born alive.”_ 4. From the report, it is seen that as on 17.09.2020, the pregnancy is of 23 weeks and 5 days. The psychiatrist, who examined her has reported that the minor does not want continuance of the pregnancy. Section 5 of the Medical Termination of Pregnancy Act, 1971 which permits termination of pregnancy exceeding 12 weeks read 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 sub-section (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.”_ 5. This court has in the judgments in _ABC V Union_ _of India & others_ [2020(4) KLT 279] and _Ms.X v. State_ ## W.P.(C) No.18874 of 2020 10 _of Kerala and Others_ [2016 (4) KLT 745] have ordered termination of pregnancy exceeding 20 weeks in the case of rape victims who were not mentally prepared to deliver the child, in order to save their lives. As found in those cases the minor victim in this case is also not prepared to deliver a child in the situation. In such an eventuality the mental stress she will have to face would affect her normal life. In view of the trauma that the minor girl has undergone and taking note of the opinion of the Psychiatrist coupled with the report of medical board, I am of the view that the writ petition can be allowed permitting termination of pregnancy. 6. In the event the baby is born alive, it has to be taken care of as observed by the Bombay High Court in the judgment _XYZ v. Union of India and Others_ (2019 (3) Bom. CR 400), as follows : _"If a child is born alive, despite attempts at the medical termination of pregnancy, the parents as well as the doctors owe a duty of care to such child. The best interests of the child must be the central consideration in determining how to treat the child. The extreme vulnerability of such child is reason enough to ensure that everything, which is_ W.P.(C) No.18874 of 2020 11 _reasonably possible and feasible in the circumstances, must be offered to such child so that it develops into a healthy child."_ 7. It is stated that there is no facility available in the General Hospital, Pathanamthitta where the minor girl was examined. Therefore the Superintendent of Medical College, Kottayam is suo moto impleaded as additional respondent no.9. 8. Therefore the petitioner is permitted to subject her daughter to medical termination of pregnancy. 9. As any delay in undertaking the termination will involve serious consequences affecting the girl as well as the life of the baby in the womb, there shall be a direction to the Superintendent of Medical College, Kottayam to see that the termination of pregnancy of the minor girl - the daughter of the petitioner is undertaken by competent doctors under his/her supervision in accordance with the provisions of the Medical Termination of Pregnancy Act,1971, its rules and all other rules, regulations and guidelines W.P.(C) No.18874 of 2020 12 prescribed for the purpose.The Medical Board shall maintain a complete record of the procedure which is to be performed on the girl for termination of her pregnancy. There will be a further direction to the doctors to take the tissue of the foetus for DNA identification and to maintain the same intact for future purposes, especially due to the fact that a criminal case is pending in the instant case. If the child is born alive, despite the attempts at 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 petitioner is accordingly directed to report with her minor daughter before the Superintendent of the Kottayam Medical College tomorrow itself ( 19/09/2020) by 10:00 AM. The Registry and all concerned, shall see that W.P.(C) No.18874 of 2020 **==> picture [15 x 9] intentionally omitted <==** absolute privacy is maintained with respect to the identity of the petitioner and that of 'minor girl while issuing the certified copy of the judgment or otherwise, There shall be a direction that copy of the writ petition, affidavit, the documents annexed to it and the medical report shall not be issued to any third person to this writ petition without obtaining orders from this Court. **==> picture [76 x 12] intentionally omitted <==** **P.V.ASHA, JUDGE.** ww W.P.(C) No.18874 of 2020 14 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE FIR IN CRIME NO.1486/2000 OF RANNY POLICE STATION.** **EXHIBIT P2 TRUE COPY OF THE OBSTETRICS ULTRASOUND REPORT DATED 24/8/2020 OF PETITIONERS DAUGHTER.**