IMPORTANT POINT
The mental health of a minor rape victim is a critical factor in decisions regarding pregnancy termination, necessitating judicial consideration.

JUDGMENT :

Nitin Jamdar, C. J.

This appeal under Section 5 of the Kerala High Court Act, 1958 is filed by the Original Petitioner, challenging the judgment and order issued by the learned Single Judge in W.P.(C) No. 37000 of 2024, dated 30 October 2024. By the impugned judgment, the learned Single Judge rejected the Petitioner’s request, the mother of the minor survivor girl, to medically terminate her pregnancy.

2. 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 Indian Penal Code, 1860, as well as Sections 4(1), (2) read with Sections 3(a), 6 read with 5(j)(ii), (1), 8 read with 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 intervention of the Court.

3. 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 learned 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 of 1971). The Petitioner requests that the Board shall provide an opinion and subsequently declare her entitled to the necessary follow-up actions for medical termination of her daughter’s pregnancy.

4. By an order dated 22 October 2024, the learned Single Judge directed the Superintendent of the Government Medical College, Thrissur 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 learned Single Judge rejected the opinion of Medical Board regarding mental health on the ground that the Board lacked a Psychologist among its members. The learned Single Judge then 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.

5. We have heard Mr. Mithun Pavanan, learned counsel for the Appellant and Mr. K.P. Harish, learned Senior Government Pleader.

6. Section 3(2) of the MTP Act, 1971 reads thus:

“3. When pregnancies may be terminated by registered medical practitioners.- (1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.

(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 twenty weeks, if such medical practitioner is , or

(b) where the length of the pregnancy exceeds twenty weeks but does not exceed twenty-four weeks in case of such category of woman as may be prescribed by rules made under this Act, if not less than two registered medical practitioners are, of the opinion, formed in good faith, that -

(i) the continuance of the pregnancy would involve a risk to the life of the pregnan