A Habeas Corpus petition was filed by the father of a girl who had gone missing nearly five months ago, to trace her. It was only after 5 months that she was tracked with a 28-year-old married man at Mangalore. The man was arrested and booked for offences under IPC and POCSO.
Since the pregnancy had advanced beyond the time period of 20 weeks i.e. the statutory fixed period permissible for legal abortion, the girl’s father moved to the Hon’ble High Court seeking an urgent intervention. Taking note of the urgency of the matter the High Court directed the constitution of a Medical Board within a day to report on the health risk of a minor girl due to the abovementioned pregnancy.
After taking the opinion of the Medical Board the Bench held a video conference with Dr. Ambuja K. Professor & Head of the Department of Obstetrics & Gynaecology, Medical College Hospital, Trichur, who was also a member of the Medical Board.
The court observed “there is a substantial risk to the life of ‘Y’ as well as to her mental health, if she is allowed to continue her pregnancy at a young age of 14 years. It is also evident that ‘Y’ does not possess the maturity required for a prospective mother. At any rate she doesn’t want to continue with her pregnancy. As far as her baby is concerned the medical opinion is that there is a substantial risk of physical and mental abnormalities as it is a teenage pregnancy”.
The Bench of Justics A K Jayasankaran Nambiar and Shaji P Chaly then took note of section 5 of Medical Termination of Pregnancy Act 1971, which states the maximum period of 20 weeks prescribed under section 3 for legally permissible termination of pregnancy will not apply in cases where abortion is “immediately necessary to save the life of a pregnant women”.
“On deeper analysis on provisions of the Act of 1971 quoted above it would be clear that section 5(1) of Medical Termination of Pregnancy Act, 1971 is a stark exception to section 3 of the Act and therefore irrespective of the maximum period of limitation to terminate pregnancy prescribe under section 3 of the Act, under exceptional circumstances specified under section 5, the termination can be done. In these circumstances, taking into account the report of the Medical Board extracted above it is explicitly evident that there is grave mental and physical danger to the life of ‘Y’ ”, Justice Chaly observed in the judgement.
The court further noted that the right to make reproductive choices is a facet of personal liberty under article 21 of the Constitution.
“…We are of the view that ‘Y’s right to make reproductive choices is also a facet of her personal liberty as understood under article 21 of our constitution. The said choice would extend to deciding whether or not to carry her pregnancy to its full term. Although the said right is subject to the restriction imposed under the Medical Termination of Pregnancy Act, in instant case, we find that the report of the medical boards justifies ‘Y”s decision and besides, she also has the consent of her parents to terminate her pregnancy”.
While allowing the termination procedure, the court directed the doctors to take the tissue of the foetus for DNA identification and maintain the same intact for future purposes, in view of a criminal case pleading against the man.