RamSiyamol R S v State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR ``` ## **`&`** ``` THE HONOURABLE MR. JUSTICE SHAJI P.CHALY THURSDAY, THE 10[TH] DAY OF NOVEMBER 2022/19TH KARTHIKA, 1944 ``` ## **`WA NO. 1654 OF 2022`** ``` AGAINST THE JUDGMENT IN WP(C) 33884/2022 OF HIGH COURT OF KERALA ``` ``` DATED 7.11.2022 ``` ## **`APPELLANT/PETITIONER:`** ``` RAMSIYAMOL R S AGED 21 YEARS, D/O RAHIM, THEKKEVILA VEEDU, MEVARAM, THATTAMALA P.O., KOLLAM TALUK, KOLLAM DISTRICT-691 020 BY ADVS. C.R.JAYAKUMAR NOBEL RAJU RAJ CAROLIN V. ``` ## **`RESPONDENTS /RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH & FAMILY WELFARE, SECRETARIAT, THIRUVANANTHAPURAM-695 001 2THE DIRECTOR, DIRECTORATE OF HEALTH SERVICES, GENERAL HOSPITAL JUNCTION, THIRUVANANTHAPURAM-695 035 3THE DISTRICT MEDICAL OFFICER, OFFICE OF THE DISTRICT MEDICAL OFFICER, CIVIL STATION, KOLLAM-691 013 4THE SUPERINTENDENT, THE GOVERNMENT VICTORIA HOSPITAL ( WOMEN), CHINNAKADA P.O., KOLLAM-691 001 ADDL.R5 THE SUPERINTENDENT, SREE AVITTAM THIRUNALHOSPITAL(SAT), CHALAKKUZHI, THIRUVANANTHAPURAM-695 011. ``` ``` BY SRI. K.P. HARISH SR. GOVERNMENT PLEADER ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: _**W.A.1654/2022**_ 2 ## J U D G M E N T ## Dated this the 10[th] day of November, 2022 ## S. Manikumar, CJ ## Appellant, who is the petitioner in W.P(C).No.33884 of 2022, has sought for the following reliefs: - “i) To issue a Writ of mandamus, or any appropriate writ or direction directing the respondents 2 & 3 to constitute a medical board and conduct examination of the petitioner fetus and to furnish a report with respect to diagnosis within a time frame; - ii) To issue a writ of mandamus, or any appropriate. writ or direction directing the respondents 1 to 4 to medically terminate the pregnancy of petitioner within a time frame fixed by this Hon'ble Court; - iii) Petitioner also prays that this Hon' ble Court may be pleased to dispense with-the translation of the documents produced in the Vernacular language.” 2. Short facts leading to filing of the writ petition are as under: 2.1. The petitioner became pregnant, due to consensual relationship with the partner, the relationship irrevocably broken, and there is no chance of reunion. The gestational age of the fetus is 28 weeks. 2.2. The petitioner had no source of livelihood and not mentally prepared to raise and nurture the child, as an unmarried mother. The petitioner did not want to carry the pregnancy to term since she was wary of the social stigma and harassment pertaining to unmarried _**W.A.1654/2022**_ 3 single parent, especially women. Hence, she voluntarily decided to terminate the pregnancy and approached the medical practitioner, but they were hesitated to terminate the pregnancy without legal permission. 2.3. Hence, seeking a direction for termination of pregnancy of the petitioner, within a time frame fixed by this Court, thewrit petition has been filed. 3. After considering the opinion of the Medical Board, legal provisions, and the decision of the Hon’ble Supreme Court in **Suchita Srivastava and another v. Chandigarh Administration** reported in **[(2009) 9 SCC 1]** , writ court, declined to grant the reliefs sought for by the petitioner. 4. Operative portion of the judgment in W.P(C). No.33884 of 2022 dated 7.11.2022 reads as under: “2. When the writ petition came up for admission, the Superintendent, SAT Hospital, Thiruvananthapuram was directed to constitute a Medical Board for examining the petitioner and to make available the Medical Board's opinion. Accordingly the medical board examined the petitioner on 29.10.2022 and opined as under: ## “Summary of the case 21 year old unmarried primi gravida with gestational age of 28 weeks with regular ANC from Victoria Hospital Kollam, with LMP 16-4-2022 and EDC on 23-1-2023 with regular cycles and with excellent dates. She has got obstetric anomaly scan suggestive of no anomalies. _**W.A.1654/2022**_ 4 The Psychiatrist and obstetrician opined that 21 year old lady with educational status Plus Two has become pregnant from live-in consensual relationship of five months duration. She has no history of mental illness and does not report symptoms of mental illness at present. Mental status examination revels a conscious, oriented female with clinically normal intellectual function and sound mind. She has good insight and awareness about her pregnancy. She was taking good care of her pregnancy by regular ANC from Victoria Hospital, Kollam. History, clinical examination and ultrasound findings show an uncomplicated singleton live pregnancy of 28 weeks duration with no fetal or maternal complications. The Neonatologist opined that at gestation of 28 weeks and estimated fetal weight of 1122 grams, if terminated now there is 50-60% chance of survival of the new born. There is increased risk of neonatal morbidity like respiratory distress syndrome and need for invasive ventilation if baby survives. The baby requires prolonged NICU stay also. There is also an increased risk of adverse neuro developmental outcome for the baby like Retinopathy of prematurity, chronic lung disease, Necrotizing enterocolitis and intraventricular hemorrhage. We are ethically and medico legally bound to give ICU care to the newborn baby after birth. As per the MTP Act, 2021 amendment, termination of pregnancy is acceptable till 24 weeks. In this case as the pregnancy is 28 weeks now, it doesn't come under the purview of MTP act.” 3. The Medical Board's opinion reveals that the petitioner was taking good care of her pregnancy by regular ANC and her mental status examination reveals a conscious, oriented female with clinically normal, intellectual function and sound mind. The ultra sound findings shows an uncomplicated singleton live pregnancy of 28 weeks duration with no foetal or maternal complications. The Medical Board has also opined against medical termination of pregnancy considering the risk involved for the baby. _**W.A.1654/2022**_ 5 4. The medical evidence is definitely against grant of permission for termination of pregnancy. No doubt, the Apex Court has declared a woman's right to make reproductive choice, to be a dimension of her personal liberty (see **Suchita Srivastava and another v. Chandigarh Administration [(2009) 9 SCC 1])** . The question here is whether such liberty can transgress the restrictions/prohibition under the Medical Termination of Pregnancy Act in cases where neither the pregnant lady or the foetus have any medical issues and the pregnancy was being taken good care of by the prospective mother, until she approached this Court. In this context, it will be apposite to consider certain amendments brought about by the Medical Termination of Pregnancy (Amendment) Act, 2021. By the amendment, sub-section (2) to Section 3 of the Principal Act is substituted with the following subsections; "(2) Subject to the provisions of subsection (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 twentyfour 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. _**W.A.1654/2022**_ 6 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 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 presumed to constitute a grave injury to the mental health of the pregnant woman. (2A) 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. (2B) 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. (2C) 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. (2D) 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.” Thus, after the amendment, medical termination is not permissible when the pregnancy exceeds 24 weeks. As per Section 3(2B), the provision relating to the length of _**W.A.1654/2022**_ 7 pregnancy will not apply when the termination is necessitated by the diagnosis of any of the substantial foetal abnormalities by a Medical Board. As far as the instant case is concerned, the Medical Board has categorically opined that the pregnancy is of 28 weeks duration with no foetal or maternal complications. In the absence of any medical reasons referable to the petitioner or the foetus, economic backwardness or possibility of social stigma cannot compel this Court to transgress the statutory prohibition and grant permission for medical termination of pregnancy. For the aforementioned reasons, the writ petition is dismissed.” ## 5. Being aggrieved, instant writ appeal is filed by the petitioner, on the following grounds: “A. Writ court ought to have looked into the fact that appellant, an unmarried woman, became pregnant due to consensual relationship with the partner. B. Writ court ought to have considered that the partner made a false promise of marriage to the appellant and started to live with partner, but later relationship was irrevocably broken and there is no chance of reunion. C. Writ court ought to have considered that the appellant is an unemployed youth and had no source of livelihood. D. Writ court ought to have considered that the appellant did not want to carry the pregnancy to term since the appellant was wary of the social stigma and harassment pertaining to unmarried single parent, especially women. _**W.A.1654/2022**_ 8 D. Writ court ought to have considered that the appellant does not like the pregnancy brought to the notice of the society and hence, legal proceedings, both civil and criminal, were initiated against the partner. E. Writ ought to have considered that the appellant does not like to nurture a child as an unmarried mother and the birth of the child will adversely affect the mental and social status of the child also. F. Writ court ought to have considered that the appellant had physical fitness to undergo medical termination of pregnancy and had no element of abnormality. G. Writ court ought to have considered that the continuance of the pregnancy would involve grave danger to the appellant's mental health. H. Writ court ought to have considered that the appellant had a freedom of choice whether to bear a child or terminate the pregnancy are areas which fall in the realm of privacy. I. Writ court ought to have considered that Article 21 of the Constitution ensures a fundamental right to lead a life of dignity. J. Writ court ought to have considered that the principles and scope of medical termination of pregnancy were held by the Hon'ble Supreme Court in **X** v. **The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi and Ors** . (MANU/SC/1257/2022)” 6. Heard Mr. C.R. Jayakumar, learned counsel for the appellant, and perused the material on record. _**W.A.1654/2022**_ 9 7. Medical Board’s opinion has been considered by the writ court. Further, decision of the Hon’ble Supreme Court in **Suchita Srivastava** (cited _supra_ ) has also been taken note of. 8. That apart, courts cannot substitute the views of experts, in the case on hand, Medical Board's opinion about the condition of the foetus. 9. Having regard to the amendment to the Medical Termination of Pregnancy Act, 1971, courts cannot issue any directions contrary to the statutory provisions. Reference can be made to a few decisions: - (i) In **State of U.P. v. Harish Chandra,** [(1996) 9 SCC 309], the Hon’ble Supreme Court held as under: “Under the Constitution a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law.....” (ii) In **Vice-Chancellor, University of Allahabad and Others** **v. Dr. Anand Prakash Mishra and Others** , [(1997) 10 SCC 264], the Hon’ble Apex Court held that, it is the settled legal position that a mandamus cannot be issued to violate the law or to act in violation of the law. (iii) In **Vice Chancellor, University of Allahabad and Another v. Som Prakash Ratnakar and Another** [AIR 2001 All. 319], a Hon'ble Division Bench of the Allahabad High Court held as under: _**W.A.1654/2022**_ 10 “.......It is settled legal position that the mandamus is issued to command the authorities to discharge its statutory functions or to exercise statutory powers and this Court cannot issue mandamus directing any authority or inferior Tribunal to violate or to nullify the statutory provisions or to act contrary to law......” (iv) In **Bhaskara Rao A.B. v. CBI** , [(2011) 10 SCC 259], the Hon'ble Apex Court held that, generally, no Court has competence to issue a direction contrary to law nor can the Court direct an authority to act in contravention of the statutory provisions. It was also held that the Courts are meant to enforce the rule of law and not to pass orders or directions which are contrary to what has been injected by law. Giving due consideration to the submissions, statutory provisions and the law declared, we are of the view that there is no error or infirmity warranting interference with the impugned judgment. Hence, writ appeal is dismissed. No costs. Sd/S. Manikumar, Chief Justice Sd/- Shaji P. Chaly, Judge sou.xxx