Research › Search › Judgment

Kerala High Court · body

2024 DIGILAW 1413 (KER)

Xxx v. Union Of India, Represented By Secretary, Ministry Of Women And Child Development

2024-11-04

V.G.ARUN

body2024
JUDGMENT : (V.G. Arun, J.) The petitioner's daughter aged 17 years, is pregnant by 26 weeks and 6 days. The survivor and family were unaware about the pregnancy till the girl was examined by a Gynaecologist. By that time, the foetus had crossed the gestational age of 24 weeks and 6 days, thereby making it impossible to medically terminate the pregnancy without an order in that regard from the competent court. Hence, this writ petition. 2. When the writ petition came up for admission on 30.10.2024, the Superintendent of the SAT Hospital & Child Development Centre, Medical College, Thiruvananthapuram was directed to constitute a Medical Board to examine the girl. The report of examination is now before this Court. 3. Heard, Adv. Jinesh Kumar. K, for the petitioner, and, Senior Government Pleader, Adv.Deepa Narayanan, for the respondents. 4. Learned counsel for the petitioner submitted that, pregnancy of the petitioner's daughter is the result of rape committed on her by her friend of the same age. A crime has been registered against the perpetrator for various offences under the Indian Penal Code and the Protection Of Children from Sexual Offences (Amendment) Act, 2012. The girl is mentally shattered and has been pleading to get the pregnancy terminated. Unfortunately, in view of the restriction contained in the Medical Termination of Pregnancy Act, 1971 (the MTP Act for short), no hospital is prepared to conduct the procedure without an order from this Court. It is contended that a woman's right to make reproductive choice and the liberty of the mother to terminate the pregnancy are dimensions of her personal liberty. Relying on the decision in xxxxx v. Union of India [(2024) SCC OnLine Ker 2135], it is contended that the bar under the MTP Act should not deter this Court from exercising the extraordinary jurisdiction under Article 226 of the Constitution. 5. The Learned Government Pleader contended that, pregnancy beyond 24 weeks cannot be terminated in the absence of substantial anomalies to the foetus. It is submitted that the Medical Board's report does not indicate any such anomaly. 6. 5. The Learned Government Pleader contended that, pregnancy beyond 24 weeks cannot be terminated in the absence of substantial anomalies to the foetus. It is submitted that the Medical Board's report does not indicate any such anomaly. 6. The Medical Termination of Pregnancy Act, 1971 was introduced with the intention to liberalise 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 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 based on the opinion of two registered Medical Practitioners that, continuance of pregnancy would involve risk to the life of the pregnant woman or grave injury to her physical and mental health or that, if the child were born, it would suffer serious physical or mental abnormality. Going by Explanation 2 to Section 3(2), anguish caused by the pregnancy shall be presumed to constitute grave injury to the mental health of the pregnant woman, if the pregnancy is alleged to have been caused by rape. Pertinent to note that, as per Section 3(2-B), the provisions of Section 3(2) relating to length of pregnancy, would become inapplicable only if the termination is necessitated by the diagnosis of any substantial foetal anomaly by a Medical Board. In other words, medical termination of pregnancy is impermissible beyond 24 weeks, unless the termination is necessitated by diagnosis of substantial foetal anomaly. This curtailment of the right to terminate pregnancy may be based on medical and ethical reasons since, by the 25th week the foetus would have achieved organ maturation and would have developed sensory and motor skill. The brain and lung of the foetus would also have developed. Therefore, by the termination, life of an almost full grown baby, is being put to peril. 7. The brain and lung of the foetus would also have developed. Therefore, by the termination, life of an almost full grown baby, is being put to peril. 7. In this background, the report of the Medical Board is also to be looked into. Hence, the contextually relevant portion of the report is extracted below; “Psychiatry Opinion …...She reports that she is anxious to know that she has become pregnant and insist to terminate the pregnancy, because her future will be affected however she decides to continue her studies and her relationship with the boy if feasible. She does not have any other emotional or behavioral disturbances. …........... Gynaecology Opinion Having examined 17.5 yr victim found her in good general condition oriented with stable vitals, no pallor. Obstetric examination revealed 26 weeks + 2 days of gestation which corresponds to Ultra sound findings with good fetal heart and estimated fetal weight of 559 gms.” 8. Based on the above findings the Board opined that, the gestation having crossed the legal limit for medical termination, the decision for the same has to be taken by this court. The report of the Medical Board does not reveal substantial anomaly to the foetus or anxiety of the survivor about her pregnancy constituting grave injury to her mental health. As per the report, while the girl is insisting on getting her pregnancy terminated, she also wants to continue her relationship with the boy. 9. True, that in xxxxx v. Union of India (supra) this Court permitted termination of pregnancy, even after the gestation period crossing 24 weeks. But, it is pertinent to note that, therein the Medical Board had opined that continuation of the pregnancy may result in severe psychological trauma to the victim. The contention that this Court in exercise of the extraordinary power under Article 226 can overlook the restrictions in the MTP Act is liable to be rejected, since the State cannot be directed to act in contravention of the law. The following observation of the Apex Court in State of West Bengal v Subhas Kumar Chatterjee and Others [ (2010) 11 SCC 694 ] makes the position very clear; “No court can issue mandamus directing the authorities to act in contravention of the rules as it would amount to compelling the authorities to violate law. Such directions may result in destruction of rule of law.” 10. Such directions may result in destruction of rule of law.” 10. For the reasons aforementioned, the prayer for termination of pregnancy is declined. If, after delivery, the survivor and her parents desire to give the child up for adoption, the State Government shall take necessary steps in that regard. The writ petition is dismissed with the above observation.