W.P.(C) No. 43018 of 2022

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 4[TH] DAY OF JANUARY 2023 / 14TH POUSHA, 1944** ## **WP(C) NO. 43018 OF 2022** ## **PETITIONER/S:** XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX BY ADVS. AKASH S. GIRISH KUMAR M S V.S.VARALEKSHMI DEVIKA JAYARAJ ## **RESPONDENT/S:** |1|THE UNION OF INDIA| |---|---| ||REPRESENTED BY ITS SECRETARY,| ||MINISTRY OF WOMEN AND CHILD DEVELOPMENT,| ||SASTHRI BHAVAN, NEW DELHI, PIN - 110001| |2|STATE OF KERALA| ||REPRESENTED BY ITS SECRETARY TO GOVERNMENT,| ||MINISTRY OF CHILD WELFARE, GOVERNMENT| ||SECRETARIAT,THIRUVANANTHAPURAM, PIN - 695001| |3|THE DIRECTOR OF HEALTH SERVICES| ||GENERAL HOSPITAL JUNCTION,| ||THIRUVANANTHAPURAM, PIN - 695035| |4|THE DIRECTOR OF MEDICAL EDUCATION| ||MEDICAL COLLEGE, KUMARAPURAM ROAD,| ||CHALAKUZHI, THIRUVANANTHAPURAM, PIN - 695015| |5|THE DISTRICT MEDICAL OFFICER (HEALTH)| ||DISTRICT MEDICAL OFFICE, COLLECTORATE,| ||KOTTAYAM, KERALA, PIN - 686001| |6|THE SUPERINTENDENT| ||GOVERNMENT MEDICAL COLLEGE,| ||GANDHI NAGAR, KOTTAYAM, PIN - 686008| ## **OTHER PRESENT:** DSGI S.MANU;GP P.S.APPU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.43018 of 2022 -2- ## **JUDGMENT** Dated this the 4[th] day of January, 2023 The petitioner, an unmarried student, aged 20 years, has approached this Court, seeking medical termination of her pregnancy. Her story, as narrated in the writ petition, unfolds as under; The petitioner is pursuing Bachelor of Dental Sciences Programme. She was in relationship with a classmate and had engaged in protected sexual intercourse. As the petitioner experienced unprecedented irregularity in her menstrual periods and other abdominal discomforts, she sought treatment at an Ayurvedic Centre. Although petitioner had some relief in the beginning, later on her discomforts increased. Thereupon, the petitioner approached a Doctor, who advised her to conduct a pregnancy test. To the petitioner's shock and dismay, the pregnancy ## W.P.(C) No.43018 of 2022 -3- test indicated and an ultra sonographic scan thereafter, confirmed, petitioner's pregnancy. The news about her pregnancy shattered the petitioner mentally and emotionally. She therefore wanted to medically terminate her pregnancy. But, the pregnancy having crossed the gestational period of 24 weeks, termination is prohibited under the Medical Termination of Pregnancy Act, 1971. 2. When the writ petition came up for admission on 30.12.2022, the 6[th] respondent was directed to constitute a Medical Board to assess the advisability of medically terminating the pregnancy. Accordingly, the petitioner was examined by the Medical Board on 03.01.2023 and the following opinion furnished; ## _**“Pediatrician Opinion:**_ _Twenty years old unmarried primigravida. H/o irregular cycles, dust allergy and H/o anxiety present. USG on 3/1/2023 shows single live intrauterine foetus of 28 weeks 3 days + one week in_ W.P.(C) No.43018 of 2022 -4- _cephalic presentation. No obvious Major Congenital Anomalies at present. If the baby is born prematurely adequate treatment and preterm care may be given to the baby._ ## _**Psychiatry Opinion:**_ _20 yrs old female is having anxiety symptoms for the past 15 days. There are h/o anxiety symptoms in past, which was managed by counseling. There is family history of depressive disorder in her mother and history of Psychosis in her father's mother and sister. She is having irregular menstrual cycles, pre morbidly having anxious traits. O/E she is conscious and cooperative with ill sustained eye to eye contact, decreased talk, anxious preoccupations and worries, crying in between with anxious affect and no gross cognitive impairment at present. She is having mixed anxiety and depressive symptoms at present. The continuation of current pregnancy in this 20 yr old unmarried primigravida may result in grave injury to the mental health of the subject._ ## _**Pulmonary medicine**_ _20 yr old female with H/o skin allergy on exposure to dust. No h/o allergic rhinitis, breathlessness,_ W.P.(C) No.43018 of 2022 -5- _bronchial Asthma, cough, TB. At present no active respiratory symptoms. Clinically Respiratory Rate 18/m, Chest B/L normal Breaths sounds heard no added sounds. Clinically normal respiratory system._ ## _**Radio Diagnosis Opinion.**_ _Single live intrauterine foetus of 28 weeks 3 days + 1 week o days gestation in cephalic presentation at time of scan with adequate liquor and no obvious Major Congenital Anomalies at present._ ## _**Impression**_ _After examining the subject in detail the Medical Board has come to the following conclusions._ _1. The continuation of pregnancy in a 20 yr old unmarried primigravida may result in grave injury to the mental health of the subject._ _2. As per clinical examination and Ultra Sonography examination the child is found to be normal._ _3. Due to advanced stage of pregnancy mother is likely to have usual danger and complications of delivery._ _4. Since the pregnancy is 28 weeks and the foetus is weighing 1.2kg there is a possibility of live birth and survival of a premature baby.”_ W.P.(C) No.43018 of 2022 -6- 3. Adv.Akash Sathyanandan, learned Counsel for the petitioner submitted that the pregnancy is causing extreme mental stress to the petitioner, which may ultimately impact her mental health. It is contended that the provisions of the Medical Termination of Pregnancy Act and the Rules thereunder require liberal interpretation, recognising the woman’s reproductive choice to either procreate or abstain from procreating. The Medical Board having found that the continuance of petitioner's pregnancy may result in grave injury to her mental health, the request for termination ought to be allowed. 4. The Medical Termination of Pregnancy Act, 1971 was introduced with intention of liberalising certain existing provisions relating to termination of pregnancy (i) as a health measure – when there is danger to the life or risk to the physical or mental health of the ## W.P.(C) No.43018 of 2022 -7- woman (ii) on humanitarian grounds – such as when pregnancy arises from sex crime or rape or intercourse with lunatic woman etc and (iii) eugenic grounds – when there is substantial risk that the child if born would suffer from deformities and diseases. Going by Section 3(2) (a) of the Act, pregnancy can be permitted to be terminated by a registered Medical Practitioner. Section 3(2) (b) stipulates that, if the length of pregnancy exceeds 20 weeks, but does not exceed 24 weeks, such category of woman, as prescribed by the rules made under the Act, can be permitted to terminate their pregnancy, if, in the opinion of two registered Medical Practitioners, continuance of pregnancy would involve risk to the life of the pregnant woman or grave injury to her physical and mental health or, if the child were born, it would suffer serious physical or mental abnormality. In the petitioner's case, the Medical Board has opined W.P.(C) No.43018 of 2022 -8- that continuation of pregnancy in a 20 year old unmarried _primigravida_ may result in grave injury to her mental health. 5. The question is whether the petitioner falls within the category of women eligible for termination of pregnancy as per the rules and, if not, whether her pregnancy can be permitted to be terminated. To answer this question it is necessary to read Rule 3B of Medical Termination of Pregnancy Rules, 2003 as amended in 2021, which details the category of women eligible for termination of pregnancy up to 24 weeks. Being contextually relevant, Rule 3B is extracted hereunder; _“_ _**3-B. Women eligible for termination of pregnancy up to twenty-four weeks** .—The following categories of women shall be considered eligible for termination of pregnancy under clause (b) of sub-section (2) Section 3 of the Act, for a period of up to twenty-four weeks, namely— (a) survivors of sexual assault or rape or incest;_ _(b) minors;_ W.P.(C) No.43018 of 2022 -9- - _(c) change of marital status during the ongoing pregnancy (widowhood and divorce);_ _(d) women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)];_ _(e) mentally ill women including mental retardation;_ - _(f) the foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and_ - _(g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.”_ 6. On a careful scrutiny of Section 3, with particular reference to sub-section 2 and Explanation I thereunder, it is seen that, medical termination of pregnancy can be permitted up to 24 weeks, if continuance of the pregnancy would involve risk to the life of the pregnant woman or grave injury to her physical or mental health. An exception is carved out by Clause(2-B) of Subsection 2 of Section 3, as per which ## W.P.(C) No.43018 of 2022 -10- provisions of sub-section (2) relating to the length of pregnancy shall not apply to termination of pregnancy if such termination is necessitated by the diagnosis of any substantial foetal abnormalities by a Medical Board. As held in _**Suchita Srivastava v Chandigarh Admn [2009 (9)**_ _**SCC 1]**_ , a woman's right to make reproductive choice is also a dimension of her personal liberty, as understood under Article 21 of the Constitution of India. There can be no restriction on a woman’s right to exercise her reproductive choice to either procreate or to abstain from procreating. The Constitution Bench in _**K.S.Puttaswamy and another v. Union of India and other [2017 (10) SCC 1]**_ , has dealt with this question at paragraph 298, the relevant portion of which is extracted hereunder; _“ ... Privacy of the body entitles an individual to the integrity of the physical aspects of personhood. The intersection between one's mental integrity and privacy_ W.P.(C) No.43018 of 2022 -11- _entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of self-determination. When these guarantees intersect with gender, they create a private space which protects all those elements which are crucial to gender identity. The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual. Above all, the privacy of the individual recognises an inviolable right to determine how freedom shall be exercised. ...”_ In this context, it may also be apposite to read the following observations of the Bombay High ## Court in _**High Court on its own Motion v. State**_ ## _**of Maharashtra [(2016) SCC OnLine Bom 8426]**_ _“14.A woman’s decision to terminate a pregnancy is not a frivolous one. Abortion is often the only way out of a very difficult situation for a woman. An abortion is a carefully considered decision taken by a woman who fears that the welfare of the child she already has, and of other members of the household that she is obliged to care for with limited financial and other resources, may be compromised by the birth of another child. These are decisions taken by responsible women who have few other options. They are women who_ W.P.(C) No.43018 of 2022 -12- _would ideally have preferred to prevent an unwanted pregnancy, but were unable to do so. If a woman does not want to continue with the pregnancy, then forcing her to do so represents a violation of the woman’s bodily integrity and aggravates her mental trauma which would be deleterious to her mental health.”_ 7. In the case at hand, the medical experts have opined that the petitioner's mental health is at peril due to her pregnancy and continuance of the pregnancy will have deleterious effect on her mental health. The petitioner and her family has volunteered to provide financial support for the child, if born alive. On consideration of all relevant aspects, including the age of the petitioner and the fact that she is a student, I am inclined to grant the relief sought. In the result, the writ petition is disposed of with the following directions; - (i) The petitioner is permitted to get her pregnancy terminated at a Government Hospital or an approved medical facility W.P.(C) No.43018 of 2022 **==> picture [23 x 9] intentionally omitted <==** as stipulated under Section 4 of the Medical Termination of Pregnancy Act, under the supervision of a properly constituted medical team. (ii) On production of this order, the Superintendent of the hospital shall take immediate measures for constituting a medical team for conducting the procedure. (iii) The petitioner shall give written consent for the procedure and shall also file an affidavit undertaking to provide the funds necessary for giving palliative care to the baby, if the baby survives. (iv) If the baby is alive at birth, the hospital shall ensure that the baby is W.P.(C) No.43018 of 2022 -14- offered the best medical treatment, the expenses for which shall be met by the petitioner and her family. Sd/- **V.G.ARUN JUDGE** Scl/ W.P.(C) No.43018 of 2022 -15- ## APPENDIX ## PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF THE AADHAR IDENTITY CARD OF THE PETITIONER EXHIBIT P2 TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED BY AYUS NURSING HOME, KOOTHATTUKULAM, ERNAKULAM DATED 08.12.2022 EXHIBIT P3 TRUE COPY OF THE MEDICAL PRESCRIPTION ISSUED BY THE DOCTORS AT MUM HOSPITAL, MONIPPALLY, KOTTAYAM DATED 28.12.2022 EXHIBIT P4 SABINE HOSPITAL AND RESEARCH CENTRE, PEZHAKKAPPILLY, MUVATTUPUZHA TO THE PETITIONER