MRS. N (Identity may not be published as per Supreme Court guidelines) v Union of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 04TH DAY OF AUGUST 2020 / 13TH SRAVANA, 1942 WP(C).No.15417 OF 2020** ## **PETITIONER:** **MRS. N (IDENTITY MAY NOT BE PUBLISHED AS PER SUPREME COURT GUIDELINES)** ## **BY ADV. SMT.RESMI NANDANAN** ## **RESPONDENTS:** - **1 UNION OF INDIA REPRESENTED BY SECRETARY, MINISTRY OF WOMAN AND CHILD DEVELOPMENT, SHASTRIBHAVAN, NEW DELHI- 110001.** - **2 STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF WOMEN AND CHILD DEVELOPMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **3 DIRECTOR OF MEDICAL EDUCATION, MEDICAL COLLEGE, KUMARAPURAM ROAD, CHALAKKUZHI, THIRUVANANTHAPURAM - 695011.** - **4 STATION HOUSE OFFICER/INSPECTOR OF POLICE, ARUVIKKARA POLICE STATION, ARUVIKKARA, THIRUVANANTHAPURAM - 695564.** **5 SUPERINTENDENT, GOVERNMENT MEDICAL COLLEGE HOSPITAL, KUMARAPURAM P.O, THIRUVANANTHAPURAM - 695011.** **6 SUPERINTENDENT, SAT HOSPITAL, KUMARAPURAM P O, THIRUVANANTHAPURAM - 695011.** 2 W.P. (C) No.15417 of 2020 **7 DISTRICT CHILD WELFARE COMMITTEE, THIRUVANANTHAPURAM, GOVERNMENT CHILDREN'S HOME, POOJAPPURA, THIRUVANANTHAPURAM-695012, REPRESENTED BY ITS CHAIRPERSON.** **R1 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA** **SMT. PUSHPALATHA M.K SR PP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 W.P. (C) No.15417 of 2020 ## **W.P. (C) No.15417 of 2020** ## **-----------------------------------------------** ## **J U D G M E N T** Heard the learned counsel for the petitioner as also the learned Government Pleader. 2. The unfortunate mother of a hapless minor rape victim has approached this Court seeking permission to medically terminate the pregnancy of her daughter, as provided under the provisions of the Medical Termination of Pregnancy Act, 1971, on behalf of her minor daughter. The facts reveal that the alleged perpetrator of the rape being an immediate neighbour of the victim, the child did not divulge, either the offence, or her sufferings during the initial stages of pregnancy to the family members, and the fact that she was pregnant was revealed to her mother only when she took medical advice when the child had missed her monthly periods. By then, the foetus had grown to 21 weeks. The child is presently admitted at the sixth respondent hospital. The case set out by the 4 W.P. (C) No.15417 of 2020 petitioner is that the child is mentally shattered and physically weak and continuance of the unwanted pregnancy is posing imminent danger to her daughter's life. She, therefore, seeks appropriate directions in this writ petition for terminating the pregnancy of her daughter. 3. On 29.7.2020, this court passed an interim order directing the sixth respondent to convene a Medical Board, including a Psychiatrist among the panel of doctors, and submit a report before this court on the following aspects : “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 W.P. (C) No.15417 of 2020 5 process; v. The wishes of the minor child as regards the future course of action with respect to her pregnancy shall also be ascertained by the Psychiatrist on the Medical Board; vi. Any other issues the Medical Board regards as relevant in such matters.” In response to the said interim order, a Medical Board was constituted, and the opinion of the Medical Board as furnished to the court by the learned Government Pleader reads thus: “1. In view of the young age the continuation of pregnancy may lead to obstetric complication and maternal morbidity/mortality. The child revealed that she is shocked to know that she is pregnant. She expresses anguish regarding her future. She believes that continuing pregnancy could affect her future and studies. She expresses desire to continue her studies. Continuation of pregnancy in this child could adversely affect her mental health and hence termination is suggested. 2. Based on the available USS there is no physical abnormality for the fetus (present gestational age 21 to 22 weeks). As per national neonatology forum guidelines the viability is 28 weeks of pregnancy. As per NRP guidelines India and AAP resuscitation is considered only after completion of 24 weeks of pregnancy. If the baby is born at 21 to 22 weeks of gestational age resuscitation need not be considered. 3. In view of the gestational age of 21 to 22 weeks, in 6 W.P. (C) No.15417 of 2020 addition to the usual risks like hemorrhage, sepsis, risk of blood transfusion etc, there is a chance of failure of medical methods of termination and in such cases hysterotomy may be needed; hence surgical and associated anesthesia risks may be involves. 4. The Medical board felt that the available methods of MTP are effective only up to 20 weeks of gestation. Beyond 20 weeks of pregnancy is to be induced as per induction of normal pregnancy. But because of the present gestational age (21 to 22 weeks) in this case uterus may not respond to the usual methods of induction and hence we may have to resort to surgical methods which involves anesthesia and surgical risks. There is a possibility that the child may be born alive, however the chances of survival is remote. 5. Detailed mental status examination of the child was assessed by Additional Professor, Child Psychiatrist, Behavioral Pediatric Unit Chief was done. The child was cooperative. She was shocked and upset when she was told that she is pregnant. She is afraid whether it will affect her studies and future. She cried during the interview. She expresses desire to continue her studies. Considering her severe psychological trauma and the childhood status it is better to terminate the pregnancy medically. So it was opined to terminate the pregnancy”. 4. It is now trite that if there are compelling reasons, the court can allow termination of pregnancy, even if the length of pregnancy exceeds the statutory limit [See **X v. Union of India and others** (2016)14 SCC 382]. In the circumstances, W.P. (C) No.15417 of 2020 7 having regard to the fact that the daughter of the petitioner is a rape victim and the opinion of the Medical Board that it is advisable to terminate the pregnancy of the victim girl medically considering the severe psychological trauma in which the victim is undergoing and her childhood status, it is only appropriate to permit the daughter of the petitioner to undergo the procedure for termination of her pregnancy. In the result, the writ petition is allowed and the daughter of the petitioner is permitted to undergo the procedure for termination of the pregnancy. The sixth respondent hospital would be free to undertake the said procedure. The Investigation Officer in the crime referred to in the writ petition would be free to issue appropriate instructions to the sixth respondent hospital for preservation of the evidence. **Sd/-** **P.B.SURESH KUMAR, JUDGE.** YKB 8 W.P. (C) No.15417 of 2020 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE FIR IN CRIME NO. 1215/2020 AT ARUVIKKARA POLICE STATION.** **EXHIBIT P2 A TRUE COPY OF THE OBSTETRICS USS REPORT OF THE GIRL ON 22.07.2020.** **RESPONDENT'S/S EXHIBITS:** ## **NIL** **//TRUE COPY//** **PA TO JUDGE**