Setting aside the order of a Single judge bench of Kerala High court that had rejected the petition of a mother of a 16 year old minor rape victim to medically terminate her 26-weeks pregnancy by rape, due to absence of Psychiatrist on the medical board, the division bench of Chief Justice Nitin Jamdar and Justice S. Manu, of Kerala High Court permitted the petitioner (mother of the minor victim) to go ahead with the medical termination of the pregnancy as per the opinion of the Medical Board and the psychiatrist. The petitioner mother had challenged the order and judgment of the single judge by way of an appeal filed under Section 5 of the Kerala High Court Act, 1958.

The order also mentions instructions to the Hospital to preserve all relevant blood samples and tissues to facilitate further medical tests that would be part of forensic evidence vital for ongoing legal proceedings.

Facts of the instant case relate to the case of a 16 year old school- going girl who became a victim of repeated sexual assaults. The crime was registered at the police station under Sections 354, 354A(2), 376, 376(2)(n), 376(3) and 506 of the Indian penal Code(‘IPC’) and 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 victim nor her mother were aware of the pregnancy until a gynaecologist informed them about it after confirmation. They also learnt that the foetus had reached a gestational age of 25 weeks and 6 days which meant that medical termination of the foetus at this stage of pregnancy was not possible without intervention of the court.

Appealing to the court the petitioner had submitted that the minor was now in the 26th week of her pregnancy and continuing with it would cause severe psychological trauma to her since she was mentally ill prepared to accept and deliver the child. The family of the minor victim were also reeling under shock. The petitioner also stated that in the backdrop of these circumstances she approached the Single Judge with a Writ Petition filed praying for directions to form a Medical Board under Section 3(2)(c) of the Medical Termination of Pregnancy Act, 1971,(“MTP Act’’).

On directions of the court the Superintendent of Government Medical College formed a Medical Board to examine the minor girl and they submitted a report ascertaining that the gestation period had surpassed 26 weeks and the ultrasound scan showed no anomalies, and so medical termination of pregnancy was the only option to rescue the 16 year old minor victim from the impact of severe mental distress and trauma that she will undergo due to rape.

Rejecting the opinion of the Medical Board regarding mental health trauma the Single judge stated that the Board’s conclusions were insufficient since there was no psychiatrist among them. Giving weightage to the fact that the foetus showed no anomaly the court rejected the plea for medical termination of pregnancy and stated that if the minor and her parents so wished they could put the child up for adoption in which case the State should take appropriate steps in this regard.

Aggrieved by the instant order, the petitioner filed the appeal. Taking note of Section 3(2) of the MTP Act, 1971, as well as the decision of the Supreme Court in XYZ v. State of Gujarat, A v. State of Maharashrtra, (2024)6 SCC 327 the bench observed that the minor in the instant case, who a victim of rape is bound to suffer intense mental trauma and as such this cannot be an ‘irrelevant consideration’. The bench also stated that when the Medical Board had already certified that there will be severe mental trauma, absence of a psychiatrist in their panel should not come in the way of acceptance of their conclusion. Directions could have been given to have an examination conducted by a Psychiatrist on the minor victim. No such direction was issued, noted the bench.

In its earlier orders, the court stated, the Superintendent of the Government Medical College was requested to have a Psychiatrist examine the minor and submit a report detailing her mental health caused due to a pregnancy borne out of the crime. The court also made a mention of an examination of the minor by a Professor from the Department of psychology who concluded that the victim was experiencing an ‘adjustment disorder’ with a depressive reaction. There was also mention that the victim did not have the mental capacity to bear this pregnancy and continuation of it would be mentally detrimental to her.

After due consideration of facts and circumstances of the case the court made notable and critical observations in their order granting the appeal for Medical Termination P. Firstly, the Medical Board’s report highlighted the minor victim’s mental distress and trauma if MTP is not performed. Also, 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. Crucially, the statutory presumption of mental trauma experienced by a minor rape victim, and the Psychiatrist’s report of confirmation of severe impact on the minor’s mental health were factored as being very relevant to the court’s decision. The wishes of the minor and the petitioner whose wish it was that the pregnancy be terminated were also included as relevant. Concluding that continuation of this pregnancy is bound to cause severe distress and psychological trauma on the minor victim’s mental health, the court observed that it will be in the best interest of her well-being if she undergoes Medical Termination of Pregnancy.

Giving directions to the Government Medical College to go ahead with the Medical Termination of pregnancy of the minor, the court also ordered that tissues and blood samples of the foetus be preserved for medical tests and for on-going criminal investigation in light of the F.I.R being filed in the present case. Additionally, blood samples and tissues were directed to be preserved for further tests and forensic evidence so that they can be adduced as evidence in ongoing legal proceedings.

Likewise, the Investigating Agency was to ensure that samples be forwarded to the Forensic Science Laboratory for preservation for use during trial. Factoring the possibility of the child being born alive after the termination of pregnancy procedure the court directed the medical practitioner to carry out appropriate procedures to ensure all medical facilities and interventions are undertaken with due care to save the child’s life. In the event of the child being born alive and neither the minor nor her parents are unwilling to take on the full responsibility of nurturing the child the State and its agencies were to provide for the child’s well-being and care.

Case Details -X v.Union of India, WA NO.1786 of 2024, decided on 8.11.2024

Advocates for Appellant: Mithun Pavanan, Sri. Mohammad Amjad K.M, Sri. Merin Thomas