XXXXX vs Union Of India

P.V.Kunhikrishnan, J

The above writ petition is filed with the following prayers:

“(i) To call for the records leading to issue Ext.P1 and P2 reports and to issue a writ of mandamus or any other appropriate writ or writs or order or direction permitting the petitioner's minor daughter to undergo medical termination of her pregnancy under the provisions of the Medical Termination of Pregnancy Act, 1971 and to issue consequential directions to the 5th respondent, to conduct such termination procedure, in accordance with law, forthwith.

(ii) Grant such other relief, in the interest of justice, which this Hon'ble Court deems fit in the facts and circumstances of the case .”[SIC]

When this writ petition came up for consideration on 30.03.2022, this Court passed the following order:

“Admit.

ASGI takes notice for R1. Government Pleader takes notice for R2 to R6.

There will be an interim order directing the 2nd respondent to constitute a Medical Board immediately and examine the stage of pregnancy of the petitioner's minor daughter and file a report before this Court forthwith.”

Based on the same, the Medical Board was constituted and examined the minor girl. The Medical Board submitted a report. It will be better to extract the report dated 26.03.2022 itself:

“GOVERNMENT MEDICAL COLLEGE HOSPITAL MULAMKUNNTHUKAVU, THRISSUR – KERALA – 680 596

MEDICAL BOARD REPORT

Members participated

Dr.Radha.Prof.Obstetrics & Gynaecology

Dr.Shafiq Ahamed.M, Asst.Prof. Of Paediatrics

Dr.Bejohn Johnson Kunnath, Prof.CAP Paediatric

Surgery

Dr.Raini K.P., Asso..Prof.of Radiodiagnosis

Ref:- Letter No.90/2022/OBG/dated24/03/2022

xxx

xxx

Unit: OBG I, Gestational Age: 26 Weeks 4 days.(as per USG dated 21/03/2022).

Reported to OBG 1 OPD with complaints of Abdominal Distension.

On examination found to be 26 weeks pregnant which confirmed by ultrasonography.

Guardians requested for medical termination of pregnancy on 22/03/2022.

Since the gestational age is above 26 weeks, it was decided to form a medical board to decide on medical termination of pregnancy.

The medical board was convened with above members on 26/03/2022 at 11.00 A.M. at New Medical College Hospital, Thrissur, and the following decision were taken.

1) The fetus is 26 weeks of gestational age, and is free from congenital anomalies as per the ultra sound scan. The chance of survival of the baby of this level of maturity is high.

2) The mother is found to be have Anemia and epistaxis, which need further evaluation. If found to be due to correctable cause there is no contraindication to continue pregnancy.

3) Considering the age of the mother and social circumstances medical termination of pregnancy may be considered after obtaining permission for the same from the court of law.

SUPERINTENDENT

Date: 26/03/2022

Govt.Medical College Hospital”

In the Medical report, it is stated that the fetus is 26 weeks of gestational age, and is free from congenital anomalies as per the ultra sound scan. It is also stated that the chance of survival of the baby of this level of maturity is high. In such circumstances, this Court is not in a position to order termination of pregnancy. In a similar situation, this Court passed an order in W.P.(C)No.7503/2022. The same order can be passed in this writ petition also.

Therefore, this writ petition is disposed of in the following manner:

i. The 5th respondent is permitted to do the needful in accordance to the Medical Termination of Pregnancy Act. It should be done within one week from the date of receipt of a copy of this judgment. If the 5th respondent needs any expert medical assistance from any other specialists, the 5th respondent can request the Director of Health Services, and the Director of Health Services will do the needful forthwith.

ii. If the baby born alive, the 5th   respondent will do the needful in accordance to law. It is declared that if the newborn is alive, then the 5th respondent and the hospital concerned will have to assume full responsibility to ensure that such child is offered best medical treatment available in the circumstances in order that it develops into a healthy child.

iii. It is also declared that if the parents of the child are not willing to or not in a position to assume the responsibility of the child, then the State and its agency will have to assume full responsibility of such child and offer such child medical support and facilities as may be reasonably feasible, adhering always to the principle of best interests of such child as well as the statutory provisions in the Juvenile Justice Act.

iv. If any request is given by the Investigating Officer who is investigating the criminal case in this matter, the authorities will take the tissue for DNA test.