Kerala High Court sets aside single judge order rejecting minor rape victim's abortion plea

Kochi: The Kerala High Court has set aside its single judge's order declining a 16-year-old rape victim's plea for abortion and allowed her to undergo the medical termination of her over 26 week long pregnancy.

A division bench of Chief Justice Nitin Jamdar and Justice S Manu said that while the medical board, after examining the girl, had opined that she would suffer mental trauma, the single judge did not consider it as there was no psychiatrist on the panel.

It said that the judge ought to have issued a direction for an examination of the girl by a psychiatrist.

"Unfortunately, no such direction was issued," the bench said, while setting aside the single judge's decision on an appeal moved by the minor's mother.

When the appeal came up for hearing before the division bench on November 7, it had directed that the minor be examined by a psychiatrist and a report be submitted regarding her mental health in relation to the distress caused by the pregnancy.

The psychiatrist's report said that the girl was experiencing an adjustment disorder with a depressive reaction.

"It is stated that she does not have the mental capacity to continue with the pregnancy and that doing so would be detrimental to her mental health," the report said.

"Accordingly, the petitioner (mother) is permitted to go ahead with the medical termination of the pregnancy (MTP) of her minor daughter as per the opinion of the medical board and that of the psychiatrist," the division bench said.

It directed the Government Medical College Hospital here to carry out the procedure required for the termination of pregnancy of the minor.

The bench said that since an FIR has been filed, "the tissues and blood samples of the foetus must be preserved for necessary medical tests, including DNA fingerprinting and mapping".

"The hospital shall preserve the blood samples of the foetus and tissues to carry out the necessary medical tests, including DNA and other tests as ordered," it added.

The court said that if the foetus is born alive, the doctor carrying out the MTP procedure should ensure that necessary facilities are provided to save the life of the infant.

"If the child is born alive and the minor or parents are not willing to take responsibility of the baby, then the state and its agency will have to assume full responsibility," the bench said.

The single judge had on October 30 said that the girl's medical report did not show any anomaly to the foetus or that going ahead with the pregnancy was injurious to her mental health.

Justice V G Arun had permitted the minor and her parents to give up the baby for adoption post delivery, if they so desired, and directed the state government to take necessary steps in accordance with the law to facilitate the same.

According to the single judge's order, the pregnancy was alleged to be the result of repeated instances of rape committed on the girl by her lover.

The victim and her parents were unaware of the pregnancy till the girl was examined by a gynaecologist.