Kavita v State of Haryana and Ors.

LPA No. 538/2015
Download Judgment: English
Country: India
Region:
Year: 2015
Court: High Court of Punjab & Haryana
Health Topics: Child and adolescent health, Health care and health services, Mental health, Sexual and reproductive health
Human Rights: Right to health, Right to life

The appellant Kavita’s 12-year-old daughter (minor victim) was raped and she became aware of her minor daughter’s pregnancy after 20 weeks had passed. Both the mother and daughter were desirous of getting the unwanted pregnancy terminated. Under section 3 of the Medical Termination of Pregnancy Act, 1971 (hereinafter ‘the Act’) an unwanted pregnancy can be lawfully terminated within 20 weeks of the gestation period but in the present case, the 20 week period was over. The mother filed an application before the single judge of the Punjab and Haryana High Court (hereinafter “the Court”) under Section 5 of the Act which provides for termination of pregnancy if is urgently necessary to save the life of the mother, in this case, a minor rape victim. The single judge ordered an examination of the victim by a medical board of Post Graduate Institute of Medical Education and Research (for brevity, ‘PGIMER’). The medical board on 26.03.2015, opined that at that particular time, there was no imminent danger to the life of the victim if the pregnancy was to continue. The single judge ordered against the termination of pregnancy on 31.03.2015.
The victim’s mother filed a letter patent appeal before the two-judge bench of the same high court and the victim at that time was 34 weeks pregnant. The two-judge bench ordered for the re-examination of the victim by a 5 member medical board of PGIMER on 6.04.2015. Her re-examination was conducted by a board of 7 senior doctors in the presence of the appellant. The Board found the victim mildly anemic but the fetus was healthy. The psychiatrists opined that though the victim’s physical and mental health had significantly declined and the pregnancy was of high risk given her young age but termination posed a higher risk than pregnancy itself at the gestation period of 34 weeks. The key issue, in this case, was whether abortion can be allowed given the extreme youth of the victim and the implications that her age may have on her pregnancy and her health under section 5(1) of the Act.

The High Court of Punjab and Haryana found that, on the basis of the opinion of the medical board regarding the victim’s condition, there was nothing left to its discretion to be exercised under any section of the Medical Termination of Pregnancy Act, 1971, including Section 5. The Court found that termination of the pregnancy would pose a higher risk to the girl than allowing the pregnancy to continue. Therefore, the abortion could not be allowed.
However, the Court also held that due to the victim’s age and the sensitivity of her condition, she would benefit from further psychiatric counseling and medical follow-up to prevent any harm to her own life. Consequently, the Court ordered that the victim be taken as a patient at PGIMER, with complete privacy maintained through a private room in a private ward with no access to the members of the general public or media and her identity kept a secret. The Court imposed a duty on the medical board to provide all food, clothing, and medicines required by the victim; and medical expenditures incurred by the appellant as well as future expenditures were to be reimbursed by the State of Haryana. The Court appointed a female doctor as a full time in charge of the victim and order the Haryana government to pay an interim aid of 2 lacs.

“Each pregnancy poses a risk to the health of a woman. In this case, the risk of pregnancy is higher because of the age of the girl. However, termination of pregnancy at this period of gestation carries a higher risk to the girl than allowing the pregnancy to continue with regular pregnancy check-up in Gynae OPD at weekly intervals. It needs to be emphasized that termination of pregnancy at this period of gestation is likely to result in the birth of a live baby. The Board is of the opinion that termination of pregnancy now is not necessary and may be rather more harmful to the life of the girl.” (Para 4)
“[L]earned counsel for the appellant submits and very aptly that the Medical Board has viewed that the victim child, owing to the sensitive nature of the issue and her age, requires periodical medical check-up and supervision to prevent any harm to her own life. He, thus, rightly contends that interventions of this Court for the safety of the victim's life are certainly called for. We are in outrightly agreement with the learned counsel, hence, dispose of this appeal with the following directions” (Para 6)

• Section 3 of Medical Termination of Pregnancy Act, 1971 “3. When Pregnancies may be terminated by registered medical practitioners- … (2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner, - (a) where the length of the pregnancy does not exceed twelve weeks if such medical practitioner is,or (b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are of opinion, formed in good faith, that,- (i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury physical or mental health; or (ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. Explanation 1.-Where any, pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.” • Section 5 of Medical Termination of Pregnancy Act, 1971 “5. Sections 3 and 4 when not to apply- (1) The provisions of Sec.4 and so much of the provisions of sub-section (2 of Sec. 3 as relate to the length of the pregnancy and the opinion of not less than two registered medical practitioner, shall not apply to the termination of a pregnancy by the registered medical practitioner in case where he is of opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman.”
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