High Court of KeralaSingle Judge2016-11-07Writ petition allowed with directions for MTP a...

X v. State of Kerala and others (W.P.(C).No.35034 of 2016)

Case / Petition Number:W.P.(C).No.35034 of 2016

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Shaji P. Chaly
Judgment Date: 2016-11-07
Court Decision / Holding: The writ petition is allowed. The 2nd respondent is directed to proceed with MTP in accordance with Act 34 of 1971 after obtaining the petitioner’s or a close relative’s consent, and to conduct necessary medical consultations (potentially via a Medical Board) and preserve material for DNA testing to assist the ongoing investigation into Ext. P1 FIR. The decision follows the principles established in Ms. X v. Union of India (AIR 2016 SC 3525) and recognizes the life/health-based exceptions under Sec. 5, allowing termination where appropriate under the statute.
Final Disposition: Writ petition allowed with directions for MTP and DNA testing under the Act and related safeguards.

Parties to the Case

Appellants / Petitioners

Ms. X

Respondents

State of Kerala represented by the Secretary to Government, Department of Health, Thiruvananthapuram
The Superintendent, Medical College Hospital, Kozhikode
Circle Inspector of Police, Vidyanagar, Kasaragod

Legal Representation & Advocates

Counsels for Petitioners

• Sri I.V. Pramod
• Sri K.V. Sasidharan

Counsels for Respondents

• Senior Government Pleader, SMT. K.R. Deepa

Case Synopsis & Summary

This writ petition by a rape survivor seeks a direction to the Government hospital at Kasaragod (2nd respondent) to conduct a Medical Termination of Pregnancy (MTP) and to collect samples for DNA testing of the fetus. The petitioner, referred to as X for privacy, had alleged a sexual relationship with a man who later married another person and faced pregnancy as a result. Despite repeated admissions and requests, the hospital declined to perform MTP on the ground that the pregnancy had reportedly exceeded 20 weeks. The petition pressed the court to authorize MTP in light of the Medical Termination of Pregnancy Act, 1971 (Act 34 of 1971) and its rules, and to order DNA testing for investigation on the accompanying FIR under Sec. 376. The core legal issue concerns the eligibility window for MTP: up to 12 weeks under Sec. 3(2)(a), and between 12 and 20 weeks under Sec. 3(2)(b) with two doctors’ good-faith opinions, plus the Explanation that rape pregnancy constitutes grave mental injury. Sec. 5 allows termination when it is immediately necessary to save the life of the pregnant woman. The Kerala High Court ultimately relies on a Supreme Court precedent (Ms. X v. Union of India, AIR 2016 SC 3525) and holds that, subject to consent, MTP may be conducted within 20 weeks or when life-saving, two-doctor opinions are satisfied, and directs the 2nd respondent to proceed accordingly and preserve material for DNA testing for police investigation. The petition is allowed with these directions.

Provisions of Law Cited

Medical Termination of Pregnancy Act, 1971 (Act 34 of 1971), Sec. 3(1)Sec. 3(2) including sub-sections (a) and (b)Explanation 1 to Sec. 3(2)Sec. 5(1)Sec. 4 (referenced in Sec. 5)Act 34 of 1971 and Rules and Regulations thereto

Legal Doctrines & Maxims

Pregnancy alleged to have been caused by rape constitutes grave injury to the mental health of the pregnant woman (Explanation 1 to Sec. 3(2))
Two registered medical practitioners must form an opinion in good faith for MTP in the 12–20 week window (Sec. 3(2)(b))
Sec. 5 carve-out allowing termination to save the life of the pregnant woman, overriding the standard prohibitions under Sec. 3(2)
Guidance from Supreme Court precedent (Ms. X v. Union of India, AIR 2016 SC 3525) on enabling termination under Section 5 when medical evidence shows risk to the woman's health

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argued that she is a rape victim and requires termination to safeguard her physical and mental health. Since the pregnancy ostensibly exceeded 20 weeks, hospital authorities refused MTP; the petitioner contends that Sec. 3(2) permits termination up to 20 weeks subject to two doctors’ good-faith opinions, and Sec. 5 allows termination to save the life of the pregnant woman, bypassing the 12–20 week restrictions when necessary. The Petitioner relies on Explanation 1 (rape presumed grave mental injury) and on the Supreme Court’s Ms. X v. Union of India to justify urgent MTP and DNA testing for investigation, arguing that public interest, privacy, and medical ethics require prompt action and documentation.

Contentions of Respondents

The respondents argued that MTP is restricted by the statutory time limits (not beyond 20 weeks, except under Sec. 5 for life-saving termination). They maintained that the standard process requires two doctors’ opinions and compliance with Section 3(2) and 5, with medical assessments and consent. They denied MTP beyond 20 weeks in the absence of a qualifying life-saving scenario and urged adherence to statutory safeguards, including medical board consultations, before permitting termination and DNA collection for police investigation.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Ms. X v. Union of India and others	AIR 2016 SC 3525	Positive	The Supreme Court held that where medical evaluation shows risk to the pregnant woman’s health and with appropriate approvals, it is permissible to terminate under Section 5; the case is cited to justify a life-saving/health-safety exception and to support proceeding with MTP under the Act.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 7TH DAY OF NOVEMBER 2016/16TH KARTHIKA, 1938** **W.P.(C).No. 35034 of 2016 (D) ----------------------------** **PETITIONER(S): -------------** **MS. X** **BY ADVS.SRI.I.V.PRAMOD SRI.K.V.SASIDHARAN** **RESPONDENT(S):** **--------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT, HEALTH, THIRUVANANTHAPURAM, PIN- 695 001.** **2. THE SUPERINTENDENT, MEDICAL COLLEGE HOSPITAL, KOZHIKODE -673 001.** **3. CIRCLE INSPECTOR OF POLICE, VIDYANAGAR, KASARGOD - 671 123.** **BY SENIOR GOVERNMENT PLEADER, SMT. K.R. DEEPA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **P.T.O** **W.P(C).No. 35034 of 2016 (D) ----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS:** **-----------------------** **EXHIBIT P1 A TRUE COPY OF THE FIR IN CRIME NO. 306/2016 DATED 19/7/2016 OF VIDYANAGAR POLICE IN KASARGOD DISTRICT.** **RESPONDENT(S)' EXHIBITS: NIL -----------------------** **//TRUE COPY// P.S. TO JUDGE** **St/-** ## **C.R.** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.35034 of 2016 ----------------------------------------------Dated this the 7th day of November, 2016** ## **JUDGMENT** This writ petition is filed by the petitioner seeking direction to the 2[nd] respondent to conduct Medical Termination of Pregnancy (MTP) for the petitioner, and for other related reliefs. In order to maintain privacy, the name of the petitioner will be hereinafter referred to as 'X' and the privacy shall be maintained by the Registry while issuing certified copy of the judgment, and while forwarding the judgment for reporting and other purposes. Material facts necessary for the disposal of the writ petition are as follows: 2. Petitioner is a victim of rape and is in need of Medical Termination of Pregnancy. She approached the Government Hospital, Kasaragod, but they declined to do MTP. Thereafter, she approached the 2[nd] respondent for termination, but there also, it was informed that MTP cannot be conducted as the pregnancy period has exceeded 20 weeks. It is in this background, this writ petition is filed seeking direction to respondent No.2 to conduct MTP, and a direction to the 3[rd] 2 **W.P.(C) No.35034 of 2016** respondent to collect sample and do the needful for DNA test of the child in the womb. 3. According to the petitioner, intimacy was developed by her with one person while she was working in a shop, and the said person has cheated the petitioner and by giving promise of marriage, she was successively subjected to sexual relationship, by which she became pregnant. However, the said person solemnized marriage with another lady on 14.05.2016, and accordingly she preferred a complaint, evident from Ext.P1 FIR. 4. Petitioner was admitted in Government Hospital, Kasaragod on 18.07.2016 and was treated for three days and discharged on 21.07.2016. Even though petitioner requested for MTP, the hospital authorities told her to come on another day. Thereafter, again she was admitted as in patient on 01.08.2016 and discharged on 03.08.2016. However, nothing took place. Again, she went to the hospital on 17.10.2016 and was treated as out patient. Being confronted with such situation, petitioner approached the 2[nd] respondent for MTP. However, stating that the pregnancy period has exceeded 20 weeks, 2[nd] respondent refused to conduct MTP. These are the 3 **W.P.(C) No.35034 of 2016** circumstances persuaded the petitioner to approach this Court seeking the reliefs sought for. 5. Heard learned counsel for the petitioner and the learned Government Pleader, and perused the documents on record and the pleadings put forth by the petitioner. 6. Ext.P1 FIR reveals, petitioner has filed a complaint against the person and police has registered a crime, alleging offence under Sec.376 of the Indian Penal Code. Therefore, there is a _prima facie_ case put forth by the petitioner. Now, the question is whether MTP could be done by the 2[nd] respondent as per the provisions of the Medical Termination of Pregnancy Act, 1971 [ for short, Act 34 of 1971], and the Rules and Regulations thereto. Sec.3(1) of the Act enables a registered medical practitioner to terminate pregnancy in accordance with the provisions of this Act, irrespective of the penal provisions contained under the Indian Penal Code. Subsection (2) of Sec.3 permits termination, subject to subsection (4), which are as follows: _“(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_ 4 **W.P.(C) No.35034 of 2016** _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 reads as follows: _“Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman”._ 7. Therefore, on evaluating the circumstances under sub-section (2)(a), a pregnancy could be terminated if it does not exceed twelve weeks. However, an exception is carved out by which a pregnancy which exceeds the period of twelve weeks, but does not exceed twenty weeks, if not less than two registered medical practitioners are of the opinion formed in good faith that 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, it could be done. Explanation 1 **W.P.(C) No.35034 of 2016** 5 thereto provides, where any pregnancy is alleged by the pregnant woman to have been caused by rape, the consequences thereto shall be presumed, to constitute a grave injury to the mental health of the pregnant woman. Petitioner is aged more than 18 years and therefore consequence of subsection (3) do not arise. 8. Therefore, on an evaluation of sub-section (2) as such, it is clear, the maximum period up to which a MTP can be done is twenty weeks period of pregnancy. However, Sec.5 takes care of a situation, in order to save the life of the pregnant woman. Sec.5(1) reads as follows: _“_ _**5. Sections 3 and 4 when not apply** .--(1) The provisions of section 4, and so much of the provisions of sub-section (2) of section 3 as relate to the length of the pregnancy and the opinion of not less than two registered medical practitioners, 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 is immediately necessary to save the life of the pregnant woman”._ 9. Therefore, on an evaluation of the said provisions, it is specific and clear, if it is in the opinion of two medical ## practitioners, formed in good faith, that the MTP is necessary to save the life of the pregnant woman, the stipulations contained under sub-section (2) of Sec.3 vanish. ## **W.P.(C) No.35034 of 2016** 6 10. When the situation in the present context is analyzed, petitioner is not mentally prepared to deliver a child and such situation can cause innumerable mental stress and change of attitude in the normal life of the petitioner. Moreover, the circumstances explained show that petitioner did not expect such conduct and behaviour from the person with whom she maintained intimate and affectionate relationship. The circumstances narrated will show, petitioner is and was not mentally prepared to accept the state of affairs at which she is now. The said circumstances, in my view is to be treated as one under Sec.5 of the Act. 11. The Apex Court had occasion to consider such a situation in _**'Ms. X v. Union of India and others'**_ [AIR 2016 SC 3525]. There, the Court was considering a question with respect to termination of 24 weeks' pregnancy and held in paragraph 6 as follows: _“6. Having perused the Medical Report (relevant extracts whereof have been reproduced hereinabove), we are satisfied, that a clear finding has been recorded by the Medical Board, that the risk to the petitioner of continuation of her pregnancy, can gravely endanger her physical and mental health. The Medical Board has also expressed an advice, that the patient should not_ **W.P.(C) No.35034 of 2016** 7 _continue with the pregnancy. In view of the findings recorded in para 6 of the report, coupled with the recommendation and advice tendered by the Medical Board, we are satisfied that it is permissible to allow the petitioner to terminate her pregnancy in terms of Section 5 of the Medical Termination of Pregnancy Act, 1971. In view of the above, we grant liberty to the petitioner, if she is so advised, to terminate her pregnancy”._ 12. Reckoning the facts and circumstances and the law involved, I am of the considered opinion that 2[nd] respondent shall take necessary steps in conducting MTP in accordance with the provisions of Act 34 of 1971, after securing required permission from the petitioner or any of her close relatives, in compliance with the medical ethics as per the relevant Act and Rules, and after having sufficient and necessary consultation, even by constituting a Medical Board. 13. There will be a direction also to the 2[nd] respondent to preserve sufficient material if MTP is done in order to conduct the DNA test, enabling the 3[rd] respondent to carry on the investigation with sufficient proof and evidence in respect of Ext.P1 FIR registered. The directions so issued shall be complied with by the 2[nd] respondent at the earliest and within a period of one week from the date of receipt of a copy of this 8 **W.P.(C) No.35034 of 2016** judgment. The writ petition is allowed accordingly. Sd/- **SHAJI P. CHALY JUDGE** //true copy// P.S. to Judge St/08.11.2016