Mental Trauma Not Irrelevant Consideration: Kerala High Court Permits Medical Termination Of 26-Week Pregnancy Of Minor Rape Survivor
While permitting a 16-year-old school going girl to terminate her over 26-week-pregnancy, the Kerala High Court said that the mental trauma undergone by the minor girl who had been stated to be subjected to "repeated sexual assault", cannot be an irrelevant consideration.
In doing so the court allowed an appeal by the survivor's mother challenging a single judge's order which had rejected her request, for medical termination of her daughter's pregnancy. The court further noted that the medical board's report submitted before the single judge already confirmed that the girl was experiencing mental trauma.
A division Bench of Chief Justice Nitin Jamdar and Justice S. Manu in its November 8 order allowed the writ appeal of the mother after the report of the psychiatrist stated that the minor does not have the mental capacity to continue with the pregnancy and that would adversely affect her mental health.
“The Medical Board's report submitted to the learned Single Judge has already established the mental trauma the minor is experiencing. Considering all 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.”
As per the facts, the petitioner mother contended that the minor was subjected to repeated sexual assault and they were unaware of the pregnancy until a gynaecologist confirmed it. It was contended that by that time, the foetus had reached a gestational age of 25 weeks and 6 days, and it was not possible to medically terminate the pregnancy without intervention of the Court. It was submitted that continuing pregnancy would cause psychological trauma and that the minor was not ready to deliver and accept the child.
It was contended that the single judge refused to permit medical termination of pregnancy without considering the mental health of the minor girl on the ground that the medical board which examined the minor lacked a psychologist. The single judge had refused medical termination on the finding that the foetus showed no anomalies in the scan and has surpassed 26 weeks of gestation. The single judge also ordered that authorities should provide all assistance if the minor and family wants to put the child for adoption. Aggrieved by this, the mother moved an appeal before the division bench.
The High Court analysed Section 3(2) of the Medical Termination of Pregnancy (MTP) Act which deals with termination of pregnancies by registered medical practitioners.
Under Section 3(2) medical termination of pregnancy can be carried out up to 24 weeks of gestation, based on the opinion of two medical practitioners, if there is a risk of serious harm to the physical or mental health of the woman or if the there is substantial risk that the child who were to be born would suffer from any serious physical or mental abnormality. Notably, explanation 2 to the provision states that when a pregnancy allegedly results from rape, "the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman".
In the facts of the case, at the time of the division bench's order, the minor girl was 26-weeks-pregnant. Referring to Section 3(2) the Court observed that the mental health of the minor girl must be given relevant consideration. It said,
"Reading 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 also in view of the decision of the Hon'ble Supreme Court in the case of XYZ v. State of Gujarat (2023 KHC 7282), A (Mother of X) v. State of Maharashtra (AIR 2024 SC 2499), and the decision of the Bombay High Court in the case of X v. State of Maharashtra (2020 SCC Online Bombay 677) and X v. State of Maharashtra [WP ASDB-LD- VC-109 of 2020 dated 3 July 2020].”
This being the position, the bench said that when the Medical Board had already opined that the minor would suffer mental trauma, if the Single Judge was of the view that the opinion of the Medical Board could not be considered due to the absence of a Psychiatrist on the panel, a direction could have been issued for an examination by a Psychiatrist.
"Unfortunately, no such direction was issued," the bench said.
When the matter came up on November 7, the bench directed for a suitable Psychiatrist to examine the minor and submit a report regarding her mental health in relation to the distress caused by the pregnancy. The Court observed that the psychiatrist who had conducted the examination, stated that the minor was experiencing an "adjustment disorder with a depressive reaction".
The Court thus permitted the minor to undergo termination of pregnancy based on the opinion of the Medical Board and that of the Psychiatrist.
Additionally, the Court stated that if the child was born alive after the procedure, the Medical Practitioner carrying out the procedure shall ensure that necessary facilities are provided to such child to save its life. Additionally, the Court directed that the State and its agencies assume full responsibility for the child if the minor and her family are unwilling to care for it.
Case Title: XXX v Union of India
Counsel for Petitioners: Advocates Mithun Pavanan, Mohamed Amjad K.M., Merin Thomas
Counsel for Respondents: Senior Government Pleader K P Harish, Central Government Counsel Anish Jain
Case Number: WA NO. 1786 OF 2024
Citation: 2024 LiveLaw (Ker) 742