Kerala High Court: In an appeal filed under Section 5 of the Kerala High Court Act, 1958 challenging the judgment and order, wherein the Single Judge rejected the Petitioner’s request, the mother of the minor survivor girl, to medically terminate her pregnancy, Nitin Jamdar, CJ. and S. Manu, J. permitted the petitioner to go ahead with the medical termination of the pregnancy of her minor daughter as per the opinion of the Medical Board and that of the Psychiatrist.
Background:
The petitioner is the mother of a 16-year-old school-going girl. She has been subjected to repeated sexual assault. A crime has been registered at the police station under Sections 354, 354A(2), 354B, 376, 376(2) (n), 376(3), and 506 of the Penal Code, 1860 (‘IPC’), as well as Sections 4(1), (2) read with Sections 3(a), 6 read with 5(j)(ii), (1), 8 read with Sections 7, and 12 read with 11(iv) of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’). Neither the minor nor her mother was aware of the pregnancy until a Gynaecologist confirmed it. By that time, the foetus had reached a gestational age of 25 weeks and 6 days, and it was not possible to medically terminate the pregnancy without the intervention of the Court.
The Petitioner stated that the minor is currently in her 26th week of pregnancy. Continuing the pregnancy will cause severe psychological trauma, and the minor’s family is in a state of shock. Furthermore, the minor is not mentally prepared to accept and deliver the child. In these circumstances, the Petitioner approached the Single Judge by filing a writ petition for a direction to form a Medical Board under Section 3(2)(c) of the Medical Termination of Pregnancy Act, 1971 (‘MTP Act’).
The Court directed the Superintendent of the Government Medical College to form a Medical Board to examine the minor. The Medical Board submitted a report stating that although the gestation period had surpassed 26 weeks and the ultrasound scan showed no anomalies, medical termination of pregnancy was most appropriate, as continuing the pregnancy would severely impact the mental health of the 16-year-old victim of rape, as conception occurred due to this crime.
The Single Judge rejected the opinion of the Medical Board regarding mental health on the grounds that the Board lacked a psychologist among its members. The Single Judge relied on the fact that the foetus showed no anomalies and refused to order medical termination of the pregnancy. It was noted that if the minor and her parents wished to put the child for adoption, the State should take the necessary steps. Being aggrieved, the Petitioner has filed this appeal.
Analysis and Decision:
The Court took note of Section 3(2) of the MTP Act, 1971, and said that in the case of a minor, who is a victim of rape, the mental trauma suffered by her cannot be an irrelevant consideration also in view of the decision of the Supreme Court in XYZ v. State of Gujarat1, A v. State of Maharashtra, (2024) 6 SCC 327. That being the position when the Medical Board had already opined that the minor would suffer mental trauma, if the Single Judge was of the view that the opinion of the Medical Board could not be considered due to the absence of a Psychiatrist on the panel, a direction could have been issued for an examination by a Psychiatrist. Unfortunately, no such direction was issued.
The Court noted that in its previous orders, it had requested the Superintendent of Government Medical College to provide a suitable Psychiatrist to examine the minor and submit a report regarding her mental health in relation to the distress caused by the pregnancy. The Court further noted that the Professor from the Department of Psychology at Government Medical College, has examined the minor and concluded that she is experiencing an adjustment disorder with a depressive reaction. It is stated that she does not have the mental capacity to continue with the pregnancy and that doing so would be detrimental to her mental health.
In light of the Medical Board’s report, which highlights the mental trauma the minor is experiencing due to the pregnancy, the Court has ruled in favor of granting the request for medical termination of the pregnancy. The Court considered several critical factors in reaching this decision, including the provisions of Section 3 of the Medical Termination of Pregnancy (MTP) Act, 1971, which allows for termination under specific circumstances, particularly when the mental health of the woman is at risk. Additionally, the statutory presumption regarding the mental trauma experienced by a minor rape victim, along with the Psychiatrist’s report confirming the detrimental impact on the minor’s mental health, were central to the Court’s decision. Further, the wishes of both the Petitioner and the minor herself were also taken into account, as they expressed their desire for the pregnancy to be terminated. Given the severe psychological distress and the clear medical recommendation, the Court concluded that the termination of the pregnancy is in the best interest of the minor’s health and well-being.
Therefore, the Court permitted the petitioner to go ahead with the medical termination of the pregnancy of her minor daughter as per the opinion of the Medical Board and that of the Psychiatrist.
The Court directed the Government Medical College Hospital to proceed with the medical termination of pregnancy for the minor. In light of the FIR being filed and the ongoing criminal investigation, the Court also ordered that the tissues and blood samples of the foetus be preserved for necessary medical tests. Additionally, the Court instructed the Hospital to preserve all relevant blood samples and tissues to facilitate further medical tests, ensuring that the necessary forensic evidence is available for the ongoing legal proceedings.
The Court directed the Investigating Agency to also ensure that the samples are forwarded to the Forensic Science Laboratory for preservation for the trial.
The Court also issued instructions regarding the possibility of the child being born alive after the termination procedure. It said that if the child is born alive, the medical practitioner carrying out the procedure was required to ensure that all necessary medical facilities and interventions are provided to save the child’s life. Furthermore, if the child is born alive and neither the minor nor her parents are willing or able to take responsibility for the child, the Court directed that the State and its agencies would assume full responsibility for the child’s care and well-being.
[X v. Union of India, 2024 SCC OnLine Ker 6645, decided on 08-11-2024]
Advocates who appeared in this case:
For Appellant: Sri. Mithun Pavanan, Sri. Mohamed Amjad K.M., Sri. Merin Thomas
1. 2023 KHC 7282
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