Sajikumar T.S. and Dhanya Sajikumar v. State of Kerala and The Superintendent, Government TD Medical College Hospital, Vandanam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** ## **THURSDAY, THE 30TH DAY OF MAY 2019 / 9TH JYAISHTA, 1941** ## **WP(C).No. 14818 of 2019** ## **PETITIONERS:** **1 SAJIKUMAR.T.S. AGED 46 YEARS S/O SADASIVAN,THEKKETHIL HOUSE, KURIANNOOR.P.O,THIRUVALLA,PATHANAMTHITTA. 2 DHANYA SAJIKUMAR, AGED 35 YEARS W/O SAJIKUMAR.T.S,THEKKETHIL HOUSE,KURIANNOOR.P.O, THIRUVALLA,PATHANAMTHITTA. BY ADV. SMT.M.S.KIRAN** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH, THIRUVANANTHAPURAM-695001.** - **2 THE SUPERINTENDENT , GOVERNMENT T D MEDICAL COLLEGE HOSPITAL,VANDANAM,ALAPPUZHA-688501. SMT.VINITHA.B,GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.05.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No. 14818 of 2019 2 ## **JUDGMENT** Petitioners are husband and wife respectively. Petitioners have a daughter and she is 10 years of age. Second petitioner is pregnant and the pregnancy is having a length of 23 weeks and 2 days as on the date of filing of the writ petition. According to the petitioner, on medical examination, the Hospital Authorities identified that, the pregnancy is twin and thereafter it is reported by the Hospital Authorities that, one of them is vanished and only one foetus is identified. Second petitioner was referred to St.Gregorious Cardio Vascular Centre, Dr.K.M.Cherian Heart Foundation, Parumala for further consultation and Ext.P1 Radiology report is drawn. In the report the outflow tracts of heart of the foetus are not well visualised. Thereafter the foetal cardiac ultrasound was conducted on 16.5.2019, in which it is found that, there is Type III Complete AVSD, Common AV, TV CLEFT with TR, Septum Primum, Inlet VSD of the foetus, evident from Ext.P2. 2. Matters being so, the Doctors of the aforesaid hospital informed the petitioners that, MTP is the WP(C).No. 14818 of 2019 3 solution, otherwise the child born may have mental/physical cardiac problems, which may be the result of the down syndrome condition of the foetus. Consequently, 2[nd] petitioner was referred to the District Hospital, Kozhencherry and the Gynaecologist therein referred the 2[nd] petitioner to Medical College Hospital, Alappuzha with requisition for MTP and for expert management, evident from Ext.P3 letter. However, Doctors are reluctant to do the MTP since in accordance with the provisions of the Medical Termination of Pregnancy Act, 1971, prohibitions are imposed from conducting MTP exceeding 20 weeks except under exceptional circumstances. The report submitted by the Medical College Hospital is produced as Ext.P4. Therefore, according to the petitioners, unless and until directions are issued, even the life of the 2[nd] petitioner itself is in danger due to the complications that are reported by the medical experts, evident from Exts.P1 to P4. 3. I have heard learned counsel for petitioners, Smt.M.S.Kiran, learned Government Pleader, Smt.Vinitha Hariraj and perused the pleadings and documents on record. WP(C).No. 14818 of 2019 4 4. The subject issue raised by the petitioners revolves around section 3 of Act, 1971, which read thus: ## _**“Section 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 (4), a pregnancy may be terminated by a registered medical practitioner,-_ _(a) where the length of the pregnancy does not exceed twelve weeks if such medical practitioner is, or_ _(b) 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 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._ _**Explanation 1.-** Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be_ WP(C).No. 14818 of 2019 5 _presumed to constitute a grave injury to the mental health of the pregnant woman._ _**Explanation 2.-** Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman._ _(3) In determining whether the continuance of pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken to the pregnant woman's actual or reasonable 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 C1ause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.”_ **==> picture [414 x 13] intentionally omitted <==** pregnancy may be terminated by a registered Medical Practitioner, where the length of pregnancy does not exceed 12 weeks, if such Medical Practitioner is, or where the length of the pregnancy exceeds 12 weeks but does not exceed 20 weeks, if not less than two registered Medical Practitioners are of the opinion, WP(C).No. 14818 of 2019 6 formed in good faith, that 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 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. Section 4 deals with the place where pregnancy may be terminated, which read thus: _(a) a hospital established or maintained by Government, or_ _(b) a place for the time being approved for the purpose of this Act by Government or a District Level Committee constituted by that Government with the Chief Medical Officer or District Health Officer as the Chairperson of the said Committee._ _Provided that the District Level Committee shall consist of not less than three and not more than five members including the Chairperson, as the Government may specify from time to time._ 6. However, as per section 5, section 3 relating to the length of pregnancy and the opinion of not less than two registered medical practitioners and the provisions of section 4 shall not apply to the termination of a pregnancy by a registered Medical Practitioner in a case where he is of opinion, formed in good faith, that the termination of such pregnancy WP(C).No. 14818 of 2019 7 is immediately necessary to save the life of the pregnant woman. 7. Therefore, in my considered opinion, even if there is prohibition created under section 3 with respect to the termination of the pregnancy exceeding twenty weeks of length, section 5 has to be taken into consideration as to whether consequent to the dangerous condition of the foetus, whether the life of the 2[nd] petitioner is in danger in accordance with the identification in Ext.P4 issued by the Assistant Professor of T.D.Medical College, Alappuzha. It is clear from Exts.P1 to P3 that, there are serious ailments to the foetus and therefore, it is only appropriate that, 2[nd] respondent i.e., the Superintendent of the Government, T.D.Medical College, Alappuzha is directed to constitute a medical board and identify as to whether the termination of pregnancy is requisite in order to protect the life of the 2[nd] petitioner also taking into account the fact that the foetus is having serious ailment. 8. I have come across .3the judgment of the Apex Court in **Ms.X v. Union of India and Others** [2016(14)SCC 383] wherein it is held that termination WP(C).No. 14818 of 2019 8 of pregnancy of 24 weeks duration is permissible when it is necessary to save the life of the pregnant woman. So also is the case considered by the Apex Court in **Tapasya Umesh Pisal v. Union of India and Others** [AIR 2017 SC 3931], wherein the Apex Court had also occasion to consider the issue with respect to the infirmity of foetus and held that, if the foetus is allowed to born,it would have a limited life span with serious handicaps which cannot be avoided and on finding that the baby will certainly not grow into an adult, granted permission to conduct termination of pregnancy. 9. Taking into account the factual circumstances and the law laid down by the Apex Court, there will be a direction to the 2[nd] respondent to constitute a medical board at the earliest and conduct necessary examination of the 2[nd] petitioner, and if there is danger to the life of the 2[nd] petitioner, and also ascertaining whether, the baby will grow into an adult and as to whether on birth further surgery/surgeries is/are required for protecting the life of the baby and if on examination it is found that such steps will have to be taken after birth of the child and the life WP(C).No. 14818 of 2019 9 of the child is risky, then appropriate decision can be taken by the medical board to conduct the medical termination of pregnancy at the earliest possible and in accordance with law. **SHAJI P.CHALY** **JUDGE** Smv 31.5.2019 WP(C).No. 14818 of 2019 10 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE RADIOLOGY REPORT DATED 13.05.2019** **EXHIBIT P2 A TRUE COPY OF THE FOETAL CARDIAC ULTRASOUND REPORT DATED 16.05.2019.** **EXHIBIT P3 THE REPORT CUM REFERENCE LETTER DATED 22.05.2019. EXHIBIT P4 A TRUE COPY OF THE REPORT DATED 27.05.2019. EXHIBIT P5 AN EXTRACT OF THE DETAILS OF ANTRIVENTRICULAR SEPTAL DEFECT(AVSD)TAKEN FROM THE INTERNET.**