WP(C) No. 15534 of 2023

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** ## **FRIDAY, THE 23[RD] DAY OF JUNE 2023 / 2ND ASHADHA, 1945** ## **WP(C) NO. 15534 OF 2023** ## **PETITIONER:** XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX BY ADV K.RAKESH ## **RESPONDENTS:** 1 THE UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF WOMEN AND CHILD DEVELOPMENT, SASTHRI BHAVAN, NEW DELHI, PIN - 110001 2 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, TRIVANDRUM, PIN - 695001 3 THE DISTRICT COLLECTOR COLLECTORATE, CIVIL STATION, UP-HILL, MALAPPURAM, PIN - 676505 4 THE DISTRICT MEDICAL OFFICER OFFICE OF THE DISTRICT MEDICAL OFFICER, UPHILL, MALAPPURAM, PIN - 676505 5 THE SUPERINTENDANT GOVERNMENT MEDICAL COLLEGE HOSPITAL, MANJERI, MALAPPURAM DISTRICT, PIN - 676121 6 THE SUPERINTENDANT GOVERNMENT MEDICAL COLLEGE HOSPITAL, KOZHIKKODE, PIN - 673008 7 THE STATION HOUSE OFFICER VAZHIKADAVU POLICE STATION, VAZHIKADAVU P.O., MALAPPURAM DISTRICT, PIN - 679333 8 THE CHILD WELFARE COMMITTEE REPRESENTED BY ITS CHAIRMAN, THAVANOOR, MALAPPURAM WP(C) NO. 15534 OF 2023 2 DISTRICT, PIN - 679573 9 ADDL.R9: KULATHOOR JAISINGH, AGED 45 YEARS, S/O LATE DEVANESAN, THUNDUVILA, KULATHOOR, UCHAKKADA P.O., THIRUVANANTHAPURAM DISTRICT, PIN – 695 506 (IS SUOMOTU IMPLEADED AS ADDITIONAL 9TH RESPONDENT IN THE WRIT PETITION AS PER ORDER DATED 23.06.2023 IN I.A.NO.3/2023) BY ADVS. ADVOCATE GENERAL OFFICE KERALA SARIN M.R.SASITH P.SANTHOSHKUMAR (KARUMKULAM) SNEHA JOY PARVATHI KRISHNA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 15534 OF 2023 3 ## **P.V.KUNHIKRISHNAN, J.** **-----------------------------W.P.(C)No. 15534 of 2023 ---------------------------------------------Dated this the 23[rd] day of June, 2023** ## **JUDGMENT** The father of a minor girl aged 15 years filed this writ petition with a main prayer to terminate the pregnancy of his daughter. It is stated that the minor son of the petitioner impregnated her minor daughter. I am sure that the petitioner, the father of these minor children put his signature in this writ petition with tears in his eyes. He and his wife has to face this embarrassing situation not only today but in future too. It is the duty of our society to keep these parents close to get over from this trauma. Nobody can blame the parents. But, WP(C) NO. 15534 OF 2023 4 we the society is responsible for this. Sibling incest may take place in the context of a family system that does not provide a safe environment for its members. But it may also happen because of the lack of knowledge about safe sex. I am of the considered opinion that the Government should seriously think about the necessity of proper ‘sex education’ in schools and colleges. This court observed like this on earlier occasion also. Safe sex education is the need of the hour to avoid these type of embarrassment to the parents. A good family atmosphere is necessary in the society. To attain this, every citizen of this country should join together without pelting stone to such unfortunate people. The above writ petition is filed with the following prayers: _“(i) Issue a writ of mandamus or any_ WP(C) NO. 15534 OF 2023 5 _other appropriate writs, orders of directions directing the respondents to terminate the pregnancy of the victim girl in Crime No.331/2023 of the Vazhikadavu Police Station as expeditiously as possible;_ _(ii) Declare that the pregnancy would cause serious mental injury to the minor girl and hence the same is liable to be terminated;_ _(iii) Issue a writ of mandamus or any other appropriate writs, orders of directions directing the 8th respondent to restore the custody of the minor girl child to her parents forthwith;_ _(iv) Dispense with the filing of English translation of Vernacular documents;_ _(v) Grant such other reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case.”[SIC]_ 2. When this writ petition came up for consideration on 16.05.2023, this Court passed the following order: _“When the matter came up before this Court on 12.5.2023, the learned Government Pleader_ WP(C) NO. 15534 OF 2023 6 _submitted that the victim was produced before the Medical Board on 11.05.2023. She sought for time to produce the medical reports._ _2. Today, the learned Government Pleader makes available the medical report of the Special Medical Board constituted by Superintendent, Government Medical College Hospital, and the observations in the report are extracted hereunder:-_ ## _**Opinions of the Medical Board after Examination are**_ _“1. Child is physically and mentally fit for Medical Termination of Pregnancy._ _2. Continuation of pregnancy is likely to cause grave injury to the social and mental health of the child._ _3. Physical health of the child is likely to be affected by the complication of teenage pregnancy._ _4. As she has crossed 32 weeks of pregnancy there is a possibility of giving birth to a live baby with all the problems of prematurity. So the Medical Board has raised concerns about the further care of the baby in case needed.”_ _3. Since risk factors are involved, the_ WP(C) NO. 15534 OF 2023 7 _petitioner is to file an affidavit before this Court undertaking to undergo the risk shown in the report of the Medical Board. The Medical Board shall also evaluate the possibility of saving the life of the baby before termination of pregnancy._ _Post on 19.05.2023._ _Hand Over ”_ ## 3. Thereafter, when the matter came up for consideration on 19.05.2023, this Court passed the following order: _“The petitioner is the father of a minor girl aged 15 years and he has approached this Court, seeking the following reliefs:_ _(i) Issue a writ of mandamus or any other appropriate writs, orders of directions directing the respondents to terminate the pregnancy of the victim girl in crime No.331/2023 of the Vazhikadavu Police Station as expeditiously as possible;_ _(ii) Declare that the pregnancy would cause serious mental injury to the minor girl and hence the same is liable to be terminated;_ _(iii) Issue a writ of mandamus or any other appropriate writs, orders of directions directing the 8th respondent to restore the custody of_ WP(C) NO. 15534 OF 2023 8 _the minor girl child to her parents forthwith;_ _(iv) Dispense with the filing of English translation of Vernacular documents; (v) Grant such other reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case.”_ _2. The unfortunate situation in this case is as follows:_ _The minor daughter of the petitioner got impregnated by the son of the petitioner and as of now the daughter is 7 months pregnant. The prayer as above is sought in such circumstances._ _3. In response to the averments contained in the writ petition, the Medical Board after examination, submitted a report wherein, their opinion was expressed in the manner as follows:_ ## _“_ _**Opinions of the Medical Board after Examination are**_ _1. Child is physically and mentally fit for Medical Termination of pregnancy._ _2. Continuation of pregnancy is likely to cause grave injury to the social and mental health of the child._ _3. Physical health of the child is likely to be affected by the complication of teenage pregnancy._ _4. As she has crossed 32 weeks of pregnancy there is a possibility of giving birth to a live_ WP(C) NO. 15534 OF 2023 9 _baby with all the problems of prematurity. So the Medical Board has raised concerns about the further care of the baby in case needed.”_ _4. Earlier, when the matter came up for consideration before this Court, taking note of the eventuality as highlighted by the Medical Board as serial No.4 above, the petitioner was directed to submit an affidavit, undertaking to undergo the risks as highlighted by the Medical Board. In compliance of the aforesaid direction, an affidavit has been submitted by the petitioner._ _5. Upon perusal of the medical report, it is evident that, the child is physically and mentally fit for medical termination of pregnancy. It is also stated that continuation of pregnancy is likely to cause grave injury to the social and mental health of the child. Considering the fact, the child is born from his own sibling, various social and medical complications are likely to arise. In such circumstances, the permission as sought for by the petitioner to terminate the pregnancy is inevitable. However, even while addressing the said issue and passing appropriate orders in this regard, the possibility of giving birth to a live baby cannot be overruled, as highlighted by the Medical_ WP(C) NO. 15534 OF 2023 10 _Board._ _6. In such circumstances, I am inclined to allow medical termination of pregnancy of the daughter of the petitioner, in the light of the principles laid down by this Court in the decisions reported in_ _**xxx v. Union of India and others** [2021(3) KLT 279] and_ _**xxx v. Union of India and others** [2022 KHC 2022]. Therefore, it is ordered that, respondents 4 and 5 are directed to take urgent steps to medically terminate the pregnancy of minor daughter of the petitioner without any delay. After completion of the procedure, a report in this regard shall be submitted before this Court to enable the Court to pass appropriate orders for addressing the further issues that are likely to arise in this case. Post after a week.”_ 4. Again when the matter came up for consideration on 02.06.2023, this Court passed the following order: _“The petitioner is free to submit an application before the 8[th] respondent seeking restoration of the child in accordance to Sec. 40 of_ WP(C) NO. 15534 OF 2023 11 _Juvenile Justice (Care and Protection of Children) Act, 2015 by tomorrow. If such an application is received, the 8[th] respondent will consider the same and take a decision in it, in consultation with the doctors, within one week from the date of receipt of the application. The order passed by the 8[th] respondent will be produced before this Court._ _2. Regarding the discharge of the petitioner's child, the Police authorities can do the needful in consultation with the medical authorities. The custody of the new born child of the minor girl also will be decided by the 8[th] respondent in accordance to Sec.35 of the Juvenile Justice Act._ _3. Post on 09.06.2023._ _Issue a copy of this order today itself.”_ 5. Today when the matter came up for consideration, both sides submitted that, as per order dated 03.06.2023, the Child Welfare Committee, Malappuram handed over the minor mother to her uncle. The order is produced before this Court. It will be better to extract the relevant portion of the above order: WP(C) NO. 15534 OF 2023 12 _“_ മമൽ പ്പറഞ്ഞ വസ് **ത** ുകളളും ബഹുമമാനപപ്പട്ട മകരള ഹഹൈമകമാടതതിയുപട ഉത്തരവളും പരതിഗണതിച്ചു ഈ ഹചൽഡഡ പവൽപഫെയർകമതിറതി തമാപഴെ പറയുളും പ്രകമാരളും ഉത്തരവമാകുന. 1. കുട്ടതിപയ കുട്ടതിയുപട അമമാവനതിൽ നതിനളും undertaking വമാങതി അമമാവപനമാപ്പളും വതിട്ടു നൽകുന. 2. കുട്ടതികഡ ആവശശ്യമമായ കകൺസതിലതിളുംഗഡ അടകമുള്ള പതിന്തുണ കുട്ടതിയുപട രകതിതമാകൾ ആവശശ്യപപ്പടുന്നതതിനഡ അനുസരതിചഡ കുട്ടതികഡ സകകരശ്യപ്രദമമായ സ്ഥലത്തഡ പവചഡ നൽകമാൻ ജതിലമാ ഹചൽഡഡ പപ്രമാട്ടകൻ ഓഫെഫീസമറമാടഡ നതിർമദ്ദേശതിക്കുന. _”_ ൽ ൽ ഉൾ 3. കുട്ടതിപയ കമാവ പ്ലസഡ പദ്ധതതിയതി പപ്പടുത്തുന. 6. As far as the new born child is concerned, the Child Welfare Committee informed that the new born child is surrendered to the committee and a consequential order is also passed. The relevant portion of the order No.CWC/M/1547/2022 dated 07.06.2023 passed by the Child Welfare Committee, Malappuram is extracted here under: _“_ ടടി കകേസടിലലെ അതടിജജീവടിതയയായ കുടടിലയ _6/5/2023_ WP(C) NO. 15534 OF 2023 13 നന് വഴടിക്കടവന് കപയാലെജീസന് മലെപ്പുററം ചചൈൽഡന് ലവൽലഫെയർ _xxxx_ കേമടിറടി മുൻപയാലകേ ഹയാജരയാക് **ക** ു യറം അതടിജജീവടിതലയ ലമഡടിക്കൽ കകേയാകളേജടിൽ പ്രകവശടിപടിക് **ക** ു യറം അതടിജജീവടിതയന് _xxxxx_ ലമഡടിക്കൽ കകേയാകളേജടിൽ വചന് _Induced delivery ._ യടിൽ കുടടി ജനടിക് **ക** ു യറം ലചൈയ നവജയാത ശടിശുവടിലന ലവൽലഫെയർ കേമടിറടി മുമയാലകേ സറണ്ടർ ലചൈയയാൻ അതടിജജീവടിതയലട മയാതയാപടിതയാക്കൾ സമതറം അറടിയടിക് **ക** ു യറം ആയതടിലന്റെ അടടിസയാനതടിൽ _5/6/2023_ നന് _xxxx_ ശടിശുകക്ഷേമ സമടിതടിയലട കേജീഴടിൽ പ്രവർതടിക്കുന്ന ശടിശു പരടിപയാലെന കകേന്ദ്രതടികലെക്കു മയാറ്റുകേയറം തുടർന് **ന** _7/6/2023 xxxx_ അതടിജജീവടിതയലട മയാതയാവറം അതടിജജീവടിതയറം _xxxxxxxxx_ ചചൈൽഡന് കേമടിറടി അറംഗറം മുൻപയാലകേ ഹയാജരയായടി കുടടിലയ സറണ്ടർ ലചൈയ്ത കരഖകേൾ ഒപടിട _._ നൽകുകേയറം ലചൈയ്തടിടള്ളതയാണന് ടടി നവജയാത ശടിശു വടിലന _xxxx_ ചചൈൽഡന് ലവൽലഫെയർ കേമടിറടി മുമയാലകേ സറണ്ടർ _xxxxx_ ലചൈയ്ത വടിവരറം പ്രഖഖയാപടിക് **ക** ു യറം ശടിശു പരടിപയാലെന കകേന്ദ്രതടിൽ സറംരക്ഷേടിചന് പരടിപയാലെടിക് **ക** ു യറം ലചൈയ്യുന _.”_ 7. In the light of the above orders, I think no further order is necessary. The Child Welfare WP(C) NO. 15534 OF 2023 14 Committee will take necessary consequential steps in accordance with law. The protection of the new born child is the duty of the state. These types of causalities shall not be there in our society in future. The embarrassment of the parents and also the victim girl cannot even be imagined. As I said earlier, this happened because of the lack of knowledge about the safe sex. Minor children are in front of ‘internet’ and ‘google search’. There is no guidance to the children. The Government should constitute a committee, if necessary, to study the issue and should think about including the ‘safe sex education’ in the curriculum of schools and colleges. The Registry will forward a copy of this judgment to the Chief Secretary, State of Kerala for taking appropriate action in the light of the facts 15 WP(C) NO. 15534 OF 2023 and circumstances of this case. With the above observation, this writ petition is disposed of. Sd/- DM **P.V.KUNHIKRISHNAN JUDGE** WP(C) NO. 15534 OF 2023 16 ## **APPENDIX OF WP(C) 15534/2023** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE FIR AND FIS IN CRIME NO.331/2023 OF THE VAZHIKADAVU POLICE STATION DATED 6-5-2023. RESPONDENTS EXHIBITS : NIL //TRUE COPY// PA TO JUDGE