'Almost 9 Month Pregnancy, Vital Organs Of Foetus Fully Developed': Kerala High Court Denies Medical Termination Of Pregnancy For 14 Yr Old

The Court further noted that the accused who was in custody under the POCSO Act, and the minor victim had developed a consensual relationship and that she was not forced into sexual intercourse. However, considering that the age of the victim was only 13 to 14 years, the Court stated that this was certainly statutory rape.

Justice Devan Ramachandran expressed empathy with the minor victim and her family but denied the request for medical termination of pregnancy considering that the pregnancy was at an advanced stage.

“This Court is saying as afore only for one reason, namely that the pregnancy is now very advanced, with the Medical Board speaking with unanimity that the “uterus corresponded to 30 weeks of gestation with good foetal heart”. The foetus has, in fact, life with heart rate; and hence, termination of the pregnancy at this stage is impossible, as also untenable. The Medical Board is also unambiguously of the view, as available from the record, that termination is not possible, but that the baby can only be taken out through a Caesarean section - which is to say, that it will be born alive, with a prognosis of a good life in future.”

The Court also directed the Jurisdictional Child Protection Officer to offer support and medical assistance to continue the pregnancy and for delivery. It also permitted the victim and her mother to approach the competent court under the Juvenile Justice Act or other laws concerning the child to be born.

The Court stated that the Child Protection Officer shall provide adequate assistance and counselling to the victim and her family in making any decisions regarding the child to be born.

The plea by the mother of the minor sought medical termination of pregnancy on the ground that the daughter was raped by the accused who was in custody. The medical examination of the minor was conducted as per the orders of the Court. Based on the report, the Court stated:

"Apodictically, this is not a case where the victim- child's health is a risk on account of the pregnancy; nor are there any lethal foetal abnormalities detected. The pregnancy is almost in its 9th month and the foetus is gaining weight and fat, getting closer to its eventual birth weight. Its vital organs, like the brain and lungs, are almost fully developed, preparing for life outside the womb."

The Court took note of the fact that the victim who was living in a tribal settlement, was used to following the customs and traditions of their clan. It noted that the accused, who was an acquaintance of her father had raped the victim at her home, where she would reside with her family.

As per the Court's directions, the victim who was alone at the Children's Home was brought back to her house so that she could be taken care of by her mother. The Court had also directed the police to take necessary safeguards to keep the victim safe and away from the accused.

However, in dismissing the mother's plea, the Court held that the medical termination of pregnancy could not be granted at such an advanced stage of pregnancy when two lives were at stake- the minor child who was thirty weeks pregnant and the healthy foetus.

It further directed for the minor victim and her family to be offered legal protection and assistance to ensure the safety and well-being of both the minor victim as well as the child to be born.

“I am, therefore, of the firm view that this is not a case where the provisions of 'the Act' can come to the aid of the petitioner, though she and her daughter ought to be offered every protection available in law, to ensure that the latter delivers her baby and is able to take care of her, within the parameters of the statutory and executive realm,” it concluded. 

Counsel for the petitioner: Advocates M. Kabani Dinesh and C. Anchala

Counsel for the respondents: Deputy Solicitor General of India, Manu S, Government Pleader Vidya Kuriakose

Citation: 2023 LiveLaw (Ker) 709

Case title: XXXXX v Union Of India

Case number: WP(C) NO. 38593 OF 2023