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Mrs X (Identity May Not Be Published As Per Supreme Court Guidelines) v/s Union of India, Represented by Secretary, Ministry of Woman & Child Development, New Delhi & Others

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    WP(C). No. 812 of 2021(B)

    Decided On, 13 January 2021

    At, High Court of Kerala


    For the Petitioner: Resmi Nandanan, Advocate. For the Respondents: P. Vijaya Kumar, Asgi, B. Vinitha, Government Pleader.

Judgment Text

1. The mother of an unfortunate minor rape victim girl aged 14 years, has approached this Court, pointing out that the girl is carrying about 20 weeks 8 days of pregnancy and that continuation of her pregnancy would be contrary to her interest. A Crime no.0012/2021 has been registered in Anchalummoodu Police Station, in respect of the incident. The Writ Petition is filed producing FIR dated 06.01.2021 and medical reports Exts.P2 and P3 dated 06.01.2021 and 07.01.2021. As per Ext.P2 report the gestational age was found to be 20 weeks and 3 days as on 06.01.2021. It is stated that victim girl is not mentally prepared to accept the pregnancy and that there is high risk in the event of continuation of her pregnancy as she has been subjected to the trauma of sexual assault.2. When the matter came up for admission on 12.01.2021, this Court passed an interim order directing the Superintendent of SAT Hospital, Thiruvananthapuram, to constitute a medical board including a psychiatrist also and to furnish a report on the following:"(i) Whether the continuance of the pregnancy involves risk to the life of the pregnant child or of grave injury to her physical and mental health;(ii) Whether there is substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped ;(iii) Whether having regard to the advanced stage of pregnancy, there is any danger (other than the usual danger which arises even in spontaneous delivery or at the end of the full term) if the pregnant victim is permitted to terminate her pregnancy ;(iv) The medical process best suited to terminate the pregnancy and the possibility of the child be born alive in the process ;(v) The wishes of the minor child as regards the future course of action with respect to her pregnancy.(vi) Any other issues the Medical Board regards as relevant in such matters."3. The learned Government Pleader has made available the minutes of the Medical Board convened on 13.01.2021 with the following members:"1. Dr.A.Santhosh Kumar, Superintendent, SATH, Govt. Medical College, Trivandrum.2. Dr.Nandini V.R, Professor & Head, Department of O & G, SAT Hospital, Govt.Medical College,3. Dr.Radhika, Assistant Professor, Department of Neonatology, Govt.Medical College, TVM.4. Dr.Lallchand A, Assistant Professor, Dept. of Psychiatry, Govt. Medical College, TVM.5. Dr.Sreekumari R, Professor, Department of O & G, SAT Hospital, Govt.Medical College, TVM.6. Dr.Priyasree J, RMO, Gynaec, SAT Hospital, Govt. Medical College, TVM."The opinion of the medical board is the following:"The 14 year old girl was interviewed in the presence of her aunt (mother's sister) Mrs. Preetha. She reported significant distress on learning that she was pregnant and fervently wishes to have an abortion. In view of the patient's opinion and her young age it is determined that the continuation of pregnancy would have an extremely detrimental effect on the patient's mental wellbeing. Hence, termination of the pregnancy is recommended from a psychiatric point of view.2. Based on the available USS there is no physical abnormality for fetus [present gestational age 21 to 22 weeks]. As per national neonatology forum guidelines the viability is 28 weeks of pregnancy. As per NRP guidelines India and AAP resuscitation is considered only after completion of 24 weeks of pregnancy. If the baby is born as 21 to 22 weeks of gestational age resuscitation need not be considered.3. In view of the gestational age of 21 to 22 weeks in addition to the usual risk like, hemorrhage, sepsis, risk of blood transfusion etc. there is a chance of failure of medical methods of termination and in such cases hysterectomy may be needed; hence surgical and associated anesthesia risks may be involve.4. The medical board felt that the available methods of MTP are effective only up to 20 weeks of gestation. Beyond 20 weeks of pregnancy is to be induced as per induction of normal pregnancy. But because of the present gestational age [21 to 22 weeks] in this case uterus may not respond to the usual methods of induction and hence we may have to resort to surgical methods which involves anesthesia and surgical risks. There is a possibility that the child may be born alive, however the chances of survival is remote."From the report, it is seen that as on today the gestational age is between 21 to 22 weeks. The medical board has reported that the continuance of pregnancy would have an extremely detrimental effect on the patient's mental wellbeing.4. As per Section 5 of the Medical Termination of Pregnancy Act, termination of pregnancy is permissible even in cases where the period of gestation exceeds the period prescribed in Sections 3 and 4 of the Act, which reads as follows:5. S.3 and S.4 when not to apply. - (1) The provisions of S.4 and so much of the provisions of sub-section (2) of S.3 as relate to the length of the pregnancy and the opinion of not less than two registered medical practitioner, shall not apply to the termination of a pregnancy by the registered medical practitioner in 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.5. This Court has, in the judgments in ABC v. Union of India & others: 2020(4) KLT 279, Ms. X v. State of Kerala and Others: 2016 (4) KLT 745, etc., ordered termination of pregnancy exceeding 20 weeks in the case of rape victims who were not mentally prepared to deliver the child, in order to save their lives. The Apex court has in the judgment in A v. Union of India: (2018)4 SCC 75 permitted termination in a case where the gestational age was 25-26 weeks. In Murugan Nayakkar v. Union of India: 2017 SCC online SC 1092 allowed termination of pregnancy in the case of 13 year old child and in Sarmishtha Chakrabortty v. Union of India: (2018) 13 SCC 339, permitted termination of pregnancy when the gestational age was 26 weeks, in view of the recommendation of the medical board and the medical report revealing the threat of severe mental injury to the woman and multiple complex problems to the child, if born alive, involving complex cardiac corrective surgery stage by stage after birth, in the event of continuation of the pregnancy. In Meera Santosh Pal v. Union of India: (2017) 3 SCC 462 also permission was granted when the pregnancy crossed 24 weeks, in view of the medical reports pointing out the risk involved. In the judgment reported in Neethu Narendran V State of Kerala : 2020(3) KHC 157 also this Court permitted termination of pregnancy when gestational age crossed 23 weeks. As found in those cases the minor victim in this case is also not prepared to deliver a baby in this situation. In view of the trauma that the minor girl has undergone and taking note of the report of the medical board, I am of the view that the Writ Petition can be allowed permitting termination of pregnancy.6. In the event the baby is born alive, it has to be taken care of as observed by the Bombay High Court in the judgment XYZ v. Union of India and Others (2019 (3) Bom.CR 400), as follows :"If a child is born alive, despite attempts at the medical termination of pregnancy, the parents as well as the doctors owe a duty of care to such child. The best interests of the child must be the central consideration in determining how to treat the child. The extreme vulnerability of such child is reason enough to ensure that everything, which is reasonably possible and feasible in the circumstances, must be offered to such child so that it develops into a healthy child."7. Therefore, the petitioner is permitted to subject her daughter to medical termination of pregnancy. As any delay in undertaking the termination will involve serious consequences affecting the girl as well as the life of the baby in the womb, there shall be a direction to the Superintendent of SAT Hospital, Thiruvananthapuram to see that the termination of pregnancy of the minor girl, the daughter of the petitioner, is undertaken by competent doctors under his/her supervision, at the earliest point of time, if possible, today itself in accordance with the provisions of the Medical Termination of Pregnancy Act, 1971, its rules and all other rules, regulations and guidelines prescribed for the purpose. The Medical Board shall maintain a complete record of the procedure which is to be performed on the girl for termination of her pregnancy.8. There will be a further direction to the doctors to take the tissue of the foetus for DNA identification and to maintain the same intact for future purposes, es

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pecially due to the fact that a criminal case is pending in the instant case. If the child is born alive, despite the attempts at medical termination of the pregnancy, the doctors shall ensure that everything, which is reasonably possible and feasible in the circumstances and in contemplation of the law prescribed for the purpose, is offered to such child so that he/ she develops into a healthy child.9. The petitioner shall produce the child victim before the Superintendent of SAT Hospital, Thiruvananthapuram today itself.10. The Registry and all concerned, shall see that absolute privacy is maintained with respect to the identity of the petitioner while issuing the certified copy of the judgment or otherwise. There shall be a direction that copy of the Writ Petition, affidavit, the documents annexed to it and the medical report shall not be issued to any third person without obtaining orders from this Court.The Writ Petition is allowed accordingly.