Rape Survivors Eligible for Medical Termination of Pregnancy, Rules Kerala HC (Read Judgment)
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 7TH DAY OF NOVEMBER 2016/16TH KARTHIKA, 1938
W.P.(C).No. 35034 of 2016 (D)
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PETITIONER(S):
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MS. X
BY ADVS.SRI.I.V.PRAMOD
SRI.K.V.SASIDHARAN
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT,
DEPARTMENT, HEALTH, THIRUVANANTHAPURAM,
PIN- 695 001.
2. THE SUPERINTENDENT,
MEDICAL COLLEGE HOSPITAL,
KOZHIKODE -673 001.
3. CIRCLE INSPECTOR OF POLICE,
VIDYANAGAR, KASARGOD - 671 123.
BY SENIOR GOVERNMENT PLEADER, SMT. K.R. DEEPA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P.T.O
W.P(C).No. 35034 of 2016 (D)
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APPENDIX
PETITIONER(S)' EXHIBITS:
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EXHIBIT P1 A TRUE COPY OF THE FIR IN CRIME NO. 306/2016 DATED
19/7/2016 OF VIDYANAGAR POLICE IN KASARGOD DISTRICT.
RESPONDENT(S)' EXHIBITS: NIL
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//TRUE COPY//
P.S. TO JUDGE
St/-
C.R.
SHAJI P. CHALY, J.
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W.P.(C) No.35034 of 2016
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Dated this the 7th day of November, 2016
JUDGMENT
This writ petition is filed by the petitioner seeking
direction to the 2nd respondent to conduct Medical Termination
of Pregnancy (MTP) for the petitioner, and for other related
reliefs. In order to maintain privacy, the name of the
petitioner will be hereinafter referred to as 'X' and the privacy
shall be maintained by the Registry while issuing certified
copy of the judgment, and while forwarding the judgment for
reporting and other purposes. Material facts necessary for the
disposal of the writ petition are as follows:
2. Petitioner is a victim of rape and is in need of
Medical Termination of Pregnancy. She approached the
Government Hospital, Kasaragod, but they declined to do MTP.
Thereafter, she approached the 2nd respondent for termination,
but there also, it was informed that MTP cannot be conducted
as the pregnancy period has exceeded 20 weeks. It is in this
background, this writ petition is filed seeking direction to
respondent No.2 to conduct MTP, and a direction to the 3rd
W.P.(C) No.35034 of 2016 2
respondent to collect sample and do the needful for DNA test
of the child in the womb.
3. According to the petitioner, intimacy was developed
by her with one person while she was working in a shop, and
the said person has cheated the petitioner and by giving
promise of marriage, she was successively subjected to sexual
relationship, by which she became pregnant. However, the
said person solemnized marriage with another lady on
14.05.2016, and accordingly she preferred a complaint,
evident from Ext.P1 FIR.
4. Petitioner was admitted in Government Hospital,
Kasaragod on 18.07.2016 and was treated for three days and
discharged on 21.07.2016. Even though petitioner requested
for MTP, the hospital authorities told her to come on another
day. Thereafter, again she was admitted as in patient on
01.08.2016 and discharged on 03.08.2016. However, nothing
took place. Again, she went to the hospital on 17.10.2016 and
was treated as out patient. Being confronted with such
situation, petitioner approached the 2nd respondent for MTP.
However, stating that the pregnancy period has exceeded 20
weeks, 2nd respondent refused to conduct MTP. These are the
W.P.(C) No.35034 of 2016 3
circumstances persuaded the petitioner to approach this Court
seeking the reliefs sought for.
5. Heard learned counsel for the petitioner and the
learned Government Pleader, and perused the documents on
record and the pleadings put forth by the petitioner.
6. Ext.P1 FIR reveals, petitioner has filed a complaint
against the person and police has registered a crime, alleging
offence under Sec.376 of the Indian Penal Code. Therefore,
there is a prima facie case put forth by the petitioner. Now,
the question is whether MTP could be done by the 2nd
respondent as per the provisions of the Medical Termination of
Pregnancy Act, 1971 [ for short, Act 34 of 1971], and the
Rules and Regulations thereto. Sec.3(1) of the Act enables a
registered medical practitioner to terminate pregnancy in
accordance with the provisions of this Act, irrespective of the
penal provisions contained under the Indian Penal Code. Sub-
section (2) of Sec.3 permits termination, subject to sub-
section (4), which are as follows:
"(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 twelve weeks, if such medical
W.P.(C) No.35034 of 2016 4
practitioner is, or
(b) where the length of the pregnancy exceeds
twelve weeks but does not exceed twenty
weeks, if not less than two registered
medical practitioners are,
of opinion, formed in good faith, that--
(i) the continuance of the pregnancy
would involve a risk to the life of the
pregnant woman or of grave injury to
her physical or mental health; or
(ii) there is a substantial risk that if the
child were born, it would suffer from
such physical or mental abnormalities
as to be seriously handicapped".
Explanation 1 reads as follows:
"Where any pregnancy is alleged by the pregnant
woman to have been caused by rape, the anguish
caused by such pregnancy shall be presumed to
constitute a grave injury to the mental health of the
pregnant woman".
7. Therefore, on evaluating the circumstances under
sub-section (2)(a), a pregnancy could be terminated if it does
not exceed twelve weeks. However, an exception is carved out
by which a pregnancy which exceeds the period of twelve
weeks, but does not exceed twenty weeks, if not less than two
registered medical practitioners are of the opinion formed in
good faith that continuance of the pregnancy would involve a
risk to the life of the pregnant woman or of grave injury to her
physical or mental health, it could be done. Explanation 1
W.P.(C) No.35034 of 2016 5
thereto provides, where any pregnancy is alleged by the
pregnant woman to have been caused by rape, the
consequences thereto shall be presumed, to constitute a grave
injury to the mental health of the pregnant woman. Petitioner
is aged more than 18 years and therefore consequence of sub-
section (3) do not arise.
8. Therefore, on an evaluation of sub-section (2) as
such, it is clear, the maximum period up to which a MTP can be
done is twenty weeks period of pregnancy. However, Sec.5
takes care of a situation, in order to save the life of the
pregnant woman. Sec.5(1) reads as follows:
"5. Sections 3 and 4 when not apply.--(1)
The provisions of section 4, and so much of the
provisions of sub-section (2) of section 3 as relate to
the length of the pregnancy and the opinion of not less
than two registered medical practitioners, shall not
apply to the termination of a pregnancy by a registered
medical practitioner in a 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".
9. Therefore, on an evaluation of the said provisions, it
is specific and clear, if it is in the opinion of two medical
practitioners, formed in good faith, that the MTP is necessary
to save the life of the pregnant woman, the stipulations
contained under sub-section (2) of Sec.3 vanish.
W.P.(C) No.35034 of 2016 6
10. When the situation in the present context is
analyzed, petitioner is not mentally prepared to deliver a child
and such situation can cause innumerable mental stress and
change of attitude in the normal life of the petitioner.
Moreover, the circumstances explained show that petitioner did
not expect such conduct and behaviour from the person with
whom she maintained intimate and affectionate relationship.
The circumstances narrated will show, petitioner is and was
not mentally prepared to accept the state of affairs at which
she is now. The said circumstances, in my view is to be
treated as one under Sec.5 of the Act.
11. The Apex Court had occasion to consider such a
situation in 'Ms. X v. Union of India and others' [AIR 2016
SC 3525]. There, the Court was considering a question with
respect to termination of 24 weeks' pregnancy and held in
paragraph 6 as follows:
"6. Having perused the Medical Report (relevant
extracts whereof have been reproduced hereinabove),
we are satisfied, that a clear finding has been recorded
by the Medical Board, that the risk to the petitioner of
continuation of her pregnancy, can gravely endanger
her physical and mental health. The Medical Board has
also expressed an advice, that the patient should not
W.P.(C) No.35034 of 2016 7
continue with the pregnancy. In view of the findings
recorded in para 6 of the report, coupled with the
recommendation and advice tendered by the Medical
Board, we are satisfied that it is permissible to allow
the petitioner to terminate her pregnancy in terms of
Section 5 of the Medical Termination of Pregnancy Act,
1971. In view of the above, we grant liberty to the
petitioner, if she is so advised, to terminate her
pregnancy".
12. Reckoning the facts and circumstances and the law
involved, I am of the considered opinion that 2nd respondent
shall take necessary steps in conducting MTP in accordance
with the provisions of Act 34 of 1971, after securing required
permission from the petitioner or any of her close relatives, in
compliance with the medical ethics as per the relevant Act and
Rules, and after having sufficient and necessary consultation,
even by constituting a Medical Board.
13. There will be a direction also to the 2nd respondent
to preserve sufficient material if MTP is done in order to
conduct the DNA test, enabling the 3rd respondent to carry on
the investigation with sufficient proof and evidence in respect
of Ext.P1 FIR registered. The directions so issued shall be
complied with by the 2nd respondent at the earliest and within
a period of one week from the date of receipt of a copy of this
W.P.(C) No.35034 of 2016 8
judgment.
The writ petition is allowed accordingly.
Sd/-
SHAJI P. CHALY
JUDGE
//true copy//
P.S. to Judge
St/-
08.11.2016