Kerala High Court allows medical termination of 26-week pregnancy of minor rape survivor

A division bank of Chief Justice Nitin Jamdar And Justice S. Manu in its order of November 8, granted the mother’s summons after the psychiatrist’s report stated that the minor does not have the mental capacity to continue the pregnancy and that this would negatively affect her mental health.

“The medical board report submitted before the learned Single Judge has already established the mental trauma experienced by the minor. Taking into account all the circumstances, including the provisions of Section 3 of the MTP Act, 1971, the statutory presumption regarding the mental trauma of a minor rape victim, the psychiatrist’s report and the wishes of both the petitioner and the minor, we are of the opinion that the request for medical termination of pregnancy should be granted.”

The facts show that the petitioner’s mother alleged that the minor was repeatedly sexually abused and that they were unaware of the pregnancy until a gynecologist confirmed it. It was stated that by that time the fetus had reached a gestational age of 25 weeks and 6 days and that it was not possible to medically terminate the pregnancy without the intervention of the Court. It was argued that continuing the pregnancy would cause psychological trauma and that the minor was not ready to bear and accept the child.

It was argued that the single judge refused to allow medical termination of pregnancy without taking into account the mental health of the minor girl, on the grounds that the medical board that examined the minor did not have a psychologist. The single judge had refused medical termination on the basis of the finding that the fetus showed no abnormalities on the scan and was beyond 26 weeks’ gestation. The single judge also ordered that the authorities should provide all assistance if the minor and his family want to put the child up for adoption. Aggrieved by this, the mother filed an appeal before the division bench.

The Supreme Court analyzed Article 3(2) of the Medical Termination of Pregnancy Act (MTP), which covers the termination of pregnancies by registered doctors.

Under Article 3(2), medical termination of pregnancy may take place up to 24 weeks’ gestation, on the basis of the opinion of two doctors, if there is a risk of serious harm to the woman’s physical or mental health or if the there is a significant risk that the child to be born will suffer from a serious physical or mental abnormality. Explanation 2 to the provision specifically states that where a pregnancy is allegedly the result of rape, “the fear caused by the pregnancy shall be deemed to constitute a serious harm to the mental health of the pregnant woman”.

In the facts of the case, at the time of the decision of the division bench, the minor girl was 26 weeks pregnant. Referring to Article 3(2), the Court noted that relevant attention should be paid to the mental health of the minor girl. It said:

“When you read this provision, in the case of a minor who is a victim of rape, the mental trauma suffered by her cannot be an irrelevant consideration even in the light of the decision of the Hon’ble Supreme Court in the case of XYZ v. State of Gujarat (2023 ). KHC 7282), A (Mother of Maharashtra (WP ASDB-LD-VC-109 of 2020, dated July 3, 2020).”

Considering this position, the court said that if the Medical Council had already ruled that the minor would suffer mental trauma, if the Single Judge was of the opinion that the Medical Council’s opinion could not be taken into account due to the absence of a psychiatrist. the panel could have issued a direction for an examination by a psychiatrist.

“Unfortunately, no such direction has been issuedthe bench said.

When the matter came up for hearing on November 7, the court directed an appropriate psychiatrist to examine the minor and submit a report on her mental health in relation to the problems caused by the pregnancy. The Court noted that the psychiatrist who conducted the examination stated that the minor was experiencing an “adjustment disorder with a depressive reaction.”

The Court therefore allowed the minor to undergo a termination of pregnancy based on the advice of the Medical Council and that of the psychiatrist.

Furthermore, the Court stated that if the child was born alive after the procedure, the doctor performing the procedure will ensure that the child is provided with the necessary facilities to save his life. Furthermore, the Court has ruled that the State and its authorities assume full responsibility for the child if the minor and her family are unwilling to care for the child.

Case title: XXX v Union of India

Counsel for the petitioners: Advocates Mithun Pavanan, Mohamed Amjad KM, Merin Thomas

Counsel for respondents: Senior government advocate KP Harish, central government counsel Anish Jain

Case number: WA NO. 1786 OF 2024

Visa: 2024 LiveLaw (Ker) 742

Click here to read/download the order