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2024 Supreme(Ker) 1126
IN THE HIGH COURT OF KERALA AT ERNAKULAM
V.G. ARUN, J.
Xxx – Petitioner
Versus
Union Of India, Represented By Secretary, Ministry Of Women And Child Development and Ors. – Respondents
W.P(C) No.38143 Of 2024
Decided On : 04-11-2024
For the Petitioner: Deepak Twinkle Sanal, Jinesh Kumar K., Fousiya Rayinmaki.
Other Present : DSGI In Charge T.C. Krishna, Smt. Deepa Narayanan, SR. GP.
IMPORTANT POINT
The court upheld the restrictions of the Medical Termination of Pregnancy Act, 1971, emphasizing that termination beyond 24 weeks is impermissible without substantial foetal anomalies.
Headnote:
(A) Medical Termination of Pregnancy Act, 1971 – Sections 3(2)(a), 3(2)(b), and 3(2-B) – Writ petition for termination of pregnancy beyond 24 weeks – Court declined the request as no substantial anomaly was found in the foetus and the pregnancy was not deemed to cause grave injury to the mental health of the survivor. (Paras 4, 6, 9)
(B) Article 226 of the Constitution – Extraordinary jurisdiction – Court cannot direct authorities to act in contravention of existing laws. (Paras 9)
Facts of the case :
The petitioner's daughter, aged 17, became pregnant due to rape and sought termination of her pregnancy, which had exceeded the legal limit for medical termination.
Findings of Court :
The Medical Board found no substantial anomaly in the foetus, and the court emphasized adherence to the MTP Act.
Issues : The main issues were the legality of terminating a pregnancy beyond 24 weeks and the mental health implications for the survivor.
Ratio Decidendi : The court ruled that the MTP Act's restrictions must be upheld, and extraordinary powers under Article 226 cannot override statutory provisions.
Result : Writ petition dismissed.
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. 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 reaso
