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2021 Supreme(Online)(KER) 49106
HIGH COURT OF KERALA
P.V.ASHA, J
... VICTIM – Appellant
Versus
UNION OF INDIA – Respondent
WP(C)/29230/2020
SRI.RAMESH .P, SMT.VINITHA.B, SRI.P.VIJAYAKUMAR
Termination of pregnancy is permissible beyond prescribed limits to safeguard a minor's health, emphasizing the necessity of protecting vulnerable individuals in traumatic situations.
Headnote:
Termination - Minor Victim - Medical Termination of Pregnancy Act, 1971 - Sections 5, 3, and 4 - Court permitted termination of pregnancy beyond 20 weeks due to severe risk to health and mental well-being of a minor rape victim, interpreting 'immediately necessary' to safeguard life.
Fact of the Case:
A 14-year-old rape victim, 22 weeks pregnant, sought court permission for abortion due to health risks and mental trauma. Medical reports corroborated the urgency of the case, indicating that continuation posed severe risks to her well-being.
Issues: Whether to allow the termination of pregnancy for a minor victim who has exceeded the 20-week gestation period under the Medical Termination of Pregnancy Act.
Ratio Decidendi: The court established that section 5 permits termination beyond the usual period when necessary to protect the woman's life; it emphasized the need for compassionate consideration in assessing the victim’s mental and physical health.
Final Decision: Writ Petition allowed; minor victim permitted to undergo medical termination of pregnancy.
JUDGMENT
The mother of a minor girl, aged 14 years, who is an unfortunate rape victim, has approached this Court pointing out that the girl is carrying 22 weeks of pregnancy and continuation of her pregnancy would be critical to her health and contrary to her interest. A Crime no.628/2020 has been registered in Chakkarakkal Police Station, in respect of the incident. The Writ Petition is filed producing Ext.P4 medical report dated 18.12.2020, which found the gestational age as 22 weeks. 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 sexual assault.
2. When the matter came up for admission on
29.12.2020, this Court passed an interim order directing the Superintendent of Government Medical College Hospital, Pariyaram, to constitute a medical board with all specialists required to conduct medical termination of pregnancy and file a report before this Court in respect of the medical condition of the child and all other related aspects for conducting the procedure of medical termination.
3. The learned Government Pleader has made available the minutes of the Medical Board convened on 29.12.2020 pursuant to the interim order passed by this Court in which it is stated as follows:
“Minutes of the Medical Board Convened on 29.12.2020 reg. the POCSO, Cr.no.628/2020 of Chakkarakkal Police Station and W.P.(C) No. 29230 of 2020-P of Hon'High Court of Kerala.
Members Present:
1. Dr.K.M. Kuriakose, Principal & Chairman
2. Dr. Sudeep K, Medical Superintendent
3. Dr Ajith S. HOD OBGYN
4. Dr Beena George, Professor, OBGYN
5. Dr Dhruhin A V. Professor, Psychiatry Based on the report of the medical officer, Dr Beena George, Professor, Dept. Of Obstetrics and Gynaecology, after examination of the victim of POCSO case, crime no: 628/2020 of Chakkarakkal Police Station who was brought to Government Medical College, Kannur on 18/12/2020 the Medical Board examined the case and came to the following conclusions.
1. The victim is now having a pregnancy of period of gestation 23 weeks plus 4 days.
2. As she is only 14 years old, continuation of pregnancy may be detrimental to the physical and mental health of the victim.
3. The usual means of termination of pregnancy involves oral medication followed by mechanical induction with a view towards vaginal expulsion of products of conception.
4. The Medical board felt that the available methods of MTP are effective only upto 20 weeks of gestation. Beyond 20 weeks, pregnancy is to be induced as per induction of normal pregnancy.
5. In view of the gestational age of 23 weeks plus 4 days, in addition to the usual risks like haemorrhage, sepsis, risk of blood transfusion etc, due to the present gestational age, there is a possibility that the uterus may not respond to the usual methods of medical induction. In that situation we may have to resort to surgical methods(hysterotomy) which involves anaesthesia and surgical risks.
6. There is a possibility that the child may be born alive, however the chances of survival is remote.
7. As per National Resuscitation Programme Guidelines - India and American Academy of Paediatrics, resuscitation is considered only after completion of 24 weeks of pregnancy. If the baby is born before 24 weeks gestational age, resuscitation need not be considered.
8. Dr. Dhruhin A V, Professor, Dept. of Psychiatry after examination of the victim, opined that continuation of pregnancy may result in severe psychiatric trauma. Hence it was suggested that termination of pregnancy could be considered.
9. Moreover, the victim and her mother are requesting for termination of pregnancy.”
From the report, it is seen that as on today the gestational age is 25 weeks and 3 days. The Psychiatrist, who examined her has reported that the continuance of pregnancy will result in serious psychiatric trauma to the minor.
4. As per section 5 of the Medical Termination of Pregnancy Act, termination
