Kerala High Court
Parvathy Shylan vs Union Of India on 24 June, 2025
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WP(C) NO. 22872 OF 2025
:-1-:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
TUESDAY, THE 24TH DAY OF JUNE 2025 / 3RD ASHADHA, 1947
WP(C) NO. 22872 OF 2025
PETITIONER:
PARVATHY SHYLAN
AGED 26 YEARS
W/O ANU UNNI CHOORAPARAMBU HOUSE , KOMANA ,
AMBALAPPUZHA P.O. ALAPPUZHA DISTRICT, PIN - 688561
BY ADV SMT.SHAMEENA SALAHUDHEEN
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY SECRETARY , MINISTRY OF WOMEN AND CHILD
DEVELOPMENT, , SASTHRI BHAVAN , NEW DELHI, PIN -
110001
2 STATE 0F KERALA
REP BY SECRETARY TO GOVERNMENT, DEPARTMENT OF WOMEN
AND CHILD DEVELOPMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
3 THE SUPERINTENDENT
T.D MEDICAL COLLEGE HOSPITAL, VANDANAM P.O., ALAPPUZHA
DISTRICT, PIN - 688005
BY DSGI FOR R1 SMT.O.M.SHALINA
BY GOVT.PLEADER SMT.K.B.SONY
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
24.06.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
The petitioner has been seeking medical termination of 26
weeks old pregnancy, after having found that a complication is
developing in the foetus which may lead to serious fetal anomaly.
According to the petitioner, her fetus is diagnosed to have the
complication of Ventriculomegaly- a condition where the lateral
ventricle, which are fluid filled cavities in the brain are getting
enlarged, as per Ext.P1 scan report. On 13.06.2025, the
petitioner was examined by the HOD of Neurosurgery Department
and on examination, if was found that if the baby is born with
ventriculomegaly, then it will have to be managed by
ventriculoperitoneal shunt and procedure is a surgical operation
to treat Hydrocephalus, a condition where the excess
cerebrospinal fluid is passed from the cavities of head to the
abdomen through a catheter. According to the petitioner, as per
Exts.P1 and P2, the continuation of pregnancy may result in
serious fetal anomaly and if at all delivery takes place, the baby
will have to undergo neurosurgery wherein it has to live on
permanent implantation like ventriculoperitoneal shunt
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procedure. The petitioner, therefore, seeks for a direction
permitting the petitioner to undergo Medical Termination of
Pregnancy and to issue consequential direction to the third
respondent to conduct such termination procedure in accordance
with law.
2. Heard the learned counsel for the petitioner, the learned
DSGI and the learned Government Pleader.
3. When the writ petition came up for consideration on 20 th
June, 2025, this Court directed the third respondent to constitute
a Medical Board for the purpose of assessing the following:-
(i) whether continuance of the petitioner’s
pregnancy would involve substantial risk that
if the child was born, it would suffer from
such physical or mental abnormalities and if
so, the nature of abnormalities, and
(ii) whether, having regard to the advanced
stage of pregnancy, there is any danger if the
pregnant mother is permitted to terminate
her pregnancy.
On 24.06.2025, the learned Government Pleader made available
this Court the report of the Medical Board dated 21.06.2025
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comprising of Associate Professor of OBG Department, HOD and
Professor of Neurosurgery, Assistant Professor of Psychiatry,
Prof (CAP) Paediatrics, HOD & Prof.Radiodiagnosis and Asst.Prof.
of Forensic Medicine of the Government T.D.M.C., Alappuzha.
The conclusion and final opinion of the Medical Board are as
follows:-
“1) Ultrasound report suggests isolated mild
ventriculomegaly of right lateral ventricle in fetus.
No other abnormality detected in ultrasound at
present in the fetus.
It is also noted that, continuation of the
petitioner’s pregnancy may involve risk of
developing physical and mental problems the child
can have because of enlarged ventricles, which
include, irritability, poor head control, nausea &
vomiting, failure to thrive, and developmental delay.
Nature of abnormalities include, abnormalities in
head circumference, 6th nerve palsy, hyperactive
reflexes, irregular respiration with apnoeic spells,
and low intelligence. However, many children with
enlarged ventricles are asymptomatic. Some cases
are identified in adults incidentally, when imaging is
done for unrelated conditions like trauma. Once the
baby is born, the plan is to get an MRI brain done,
and if ventriculomegaly is persisting, the child is
either followed up or a cerebrospinal fluid diversion
procedure is done depending on the condition of the
child.
2) The patient is now 25 weeks+6 days of gestation
as on 21/06/2025. Termination at this gestation
can have maternal complications like severe
hemorrhage which may require blood transfusion,
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retained placenta which may need surgical
evacuation, sepsis requiring High Dependency Unit
management, rupture uterus & hysterotomy. These
complications can endanger the life of the patient if
they occur during termination of pregnancy. The
risk of termination of pregnancy more than 24
weeks carries more risk to the mother when
compared to medical termination of pregnancy less
than 24 weeks.”
4. The termination of pregnancy is governed by the Medical
Termination of Pregnancy Act, 1971 (‘Act’, in short) and the rules
framed thereunder. The Act is a progressive legislation that
regulates how pregnancies can be terminated.
5. Section 3 of the Act spells out the conditions to be
satisfied to terminate a pregnancy, which reads as follows:
“S.3 – When pregnancies may be terminated by registered
medical practitioners.–
(1) Notwithstanding anything contained in the Indian
Penal Code (45 of 1860), a registered medical
practitioner shall not be guilty of any offence under that
code or under any other law for the time being in force,
if any pregnancy is terminated by him in accordance
with the provisions of this Act.
(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
twenty weeks, if such medical practitioner, is or (b)
where the length of the pregnancy exceeds twenty
weeks but does not exceed twenty – four weeks in
case of such category of woman as may be prescribed
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by rules made under this Act, if not less than two
registered medical practitioners are, of the 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 to her physical or mental health; or (ii) there
is a substantial risk that if the child were born, it
would suffer from any serious physical or mental
abnormality.
Explanation 1.―For the purposes of clause (a), where
any pregnancy occurs as a result of failure of any device
or method used by any woman or her partner for the
purpose of limiting the number of children or preventing
pregnancy, the anguish caused by such pregnancy may
be presumed to constitute a grave injury to the mental
health of the pregnant woman.
Explanation 2. ― For the purposes of clauses (a) and (b),
where any pregnancy is alleged by the pregnant woman
to have been caused by rape, the anguish caused by the
pregnancy shall be presumed to constitute a grave injury
to the mental health of the pregnant woman.
(2A) The norms for the registered medical practitioner
whose opinion is required for termination of pregnancy at
different gestational age shall be such as may be
prescribed by rules made under this Act.
(2B) The provisions of sub-section (2) relating to the
length of the pregnancy shall not apply to the termination
of pregnancy by the medical practitioner where such
termination is necessitated by the diagnosis of any of the
substantial foetal abnormalities diagnosed by a Medical
Board.
(2C) Every State Government or Union territory, as the
case may be, shall, by notification in the Official Gazette,
constitute a Board to be called a Medical Board for the
purposes of this Act to exercise such powers and
functions as may be prescribed by rules made under this
Act.
(2D) The Medical Board shall consist of the following,
namely: (a) a Gynaecologist; (b) a Paediatrician; ― (c) a
Radiologist or Sonologist; and (d) such other number of
members as may be notified in the Official Gazette by the
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State Government or Union territory, as the case may be.
(3) In determining whether the continuance of a pregnancy
would involve such risk of injury to the health as is
mentioned in sub-section (2), account may be taken of the
pregnant woman’s actual or reasonably foreseeable
environment.
(4) (a) No pregnancy of a woman, who has not attained the
age of eighteen years, or, who having attained the age of
eighteen years, is a mentally ill person, shall be terminated
except with the consent in writing of her guardian.
(b) Save as otherwise provided in clause (a), no pregnancy
shall be terminated except with the consent of the
pregnant woman.”
6. It is also necessary to refer to the Medical Termination of
Pregnancy Rules, 2003, which reads as follows:
“3A. Powers and functions of Medical Board.–For the
purposes of section 3,– (a) the powers of the Medical
Board shall be the following, namely:- (i) to allow or
deny termination of pregnancy beyond twenty-four
weeks of gestation period under sub-section (2B) of
the said section only after due consideration and
ensuring that the procedure would be safe for the
woman at that gestation age and whether the foetal
malformation has substantial risk of it being
incompatible with life or if the child is born it may
suffer from such physical or mental abnormalities to
be seriously handicapped”;
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7. The position of law can therefore be summarised thus:
8. Besides the above statutory safeguards, the Ministry of
Health and Family Welfare, Government of India, has issued a
comprehensive ‘Guidance Note for Medical Boards for
Termination of Pregnancy beyond 20 weeks of Gestation’, dated
14th August 2017. The Note stipulates that it is the responsibility
of the Medical Board to ascertain whether the fetal abnormality
is substantial enough to qualify as either incompatible with life or
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associated with significant morbidity or mortality of the child if
born. Determining substantial fetal abnormalities should be
based on a thorough review of the patient’s medical records. The
Medical Board should conduct additional investigations as may
be necessary. It should base its decision on concrete medical
evidence and expert evaluations, including reviewing the
available documents and performing additional diagnostic tests
to confirm the presence and extent of congenital abnormalities.
The objective of the Note is to ensure that the decision to
terminate the pregnancy is made with the utmost care and
consideration of the potential outcomes and quality of life of the
child.
9. A three-judge Bench of the Hon’ble Supreme Court, in
Suchita Srivastava v. Chandigarh Admn. [(2009) 9 SCC 1],
has held that the right to make reproductive choices is a facet of
Article 21 of the Constitution and that the consent of the
pregnant person in matters of reproductive choices and abortion
is paramount.
10. In XYZ v. State of Gujarat (2023 SCC Online SC 1573),
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the Hon’ble Supreme Court held that the Medical Board or the
High Court cannot refuse termination of pregnancy merely on
the ground that the gestational age is above the statutory
prescription. It is held as follows:
“19. The whole object of preferring a Writ Petition
under Article 226 of the Constitution of India is to
engage with the extraordinary discretionary
jurisdiction of the High Court in exercise of its
constitutional power. Such a power is vested with
the constitutional courts and discretion has to be
exercised judiciously and having regard to the facts
of the case and by taking into consideration the
relevant facts while leaving out irrelevant
considerations and not vice versa.”
11. The Hon’ble Supreme Court in A v. State of
Maharashtra [(2024) 6 SCC 327] has held as under:
” 28. The powers vested under the Constitution in the
High Court and this Court allow them to enforce
fundamental rights guaranteed under Part III of the
Constitution. When a person approaches the court for
permission to terminate a pregnancy, the courts apply their
mind to the case and make a decision to protect the
physical and mental health of the pregnant person. In doing
so the court relies on the opinion of the Medical Board
constituted under the MTP Act for their medical expertise.
The court would thereafter apply their judicial mind to the
opinion of the Medical Board. Therefore, the Medical Board
cannot merely state that the grounds under Section 3(2-B)
of the MTP Act are not met. The exercise of the jurisdiction
of the courts would be affected if they did not have the
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advantage of the medical opinion of the board as to the risk
involved to the physical and mental health of the pregnant
person. Therefore, a Medical Board must examine the
pregnant person and opine on the aspect of the risk to their
physical and mental health.
29. The MTP Act has removed the restriction on the
length of the pregnancy for termination in only two
instances. Section 5 of the MTP Act prescribes that a
pregnancy may be terminated, regardless of the gestational
age, if the medical practitioner is of the opinion formed in
good faith that the termination is immediately necessary to
save the life of the pregnant person. Section 3(2-B) of the
Act stipulates that no limit shall apply on the length of the
pregnancy for terminating a foetus with substantial
abnormalities. The legislation has made a value judgment
in Section 3(2-B) of the Act, that a substantially abnormal
foetus would be more injurious to the mental and physical
health of a woman than any other circumstance. In this
case, the circumstance against which the provision is
comparable is rape of a minor. To deny the same enabling
provision of the law would appear prima facie unreasonable
and arbitrary. The value judgment of the legislation does
not appear to be based on scientific parameters but rather
on a notion that a substantially abnormal foetus will inflict
the most aggravated form of injury to the pregnant
person……..
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32. This highlights the need for giving primacy to the
fundamental rights to reproductive autonomy, dignity and
privacy of the pregnant person by the Medical Board and
the courts. The delays caused by a change in the opinion of
the Medical Board or the procedures of the court must not
frustrate the fundamental rights of pregnant people. We
therefore hold that the Medical Board evaluating a pregnant
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person with a gestational age above twenty-four weeks must
opine on the physical and mental health of the person by
furnishing full details to the court”.
12. The Medical Board has opined that the continuation of
the petitioner’s pregnancy may involve risk of developing
physical and mental problems in the child because of enlarged
ventricles, which include, irritability, poor head control, nausea
& vomiting, failure to thrive, and developmental delay.
13. Consequently, there is a decisive basis to hold that the
petitioner is eligible to get her pregnancy terminated,
irrespective of the gestation age, in view of Section 3 (2-B) of the
Act, as the fetus presents with substantial abnormalities that the
Medical Board has confirmed.
14. Learned counsel for the petitioner submits that if the
baby is born alive, she is ready and willing to bear the risk of
taking care of the baby and also ready to meet all the expenses.
15. After an elaborate consideration of the facts, the
materials on record and the well-settled principles of law on the
subject, especially considering the recommendations of the
Medical Board, I am of the view that denying termination may
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only delay the inevitable and extend the suffering of the family.
The writ petition is to be disposed of by directing the third
respondent to terminate the petitioner’s pregnancy.
In the aforementioned circumstances, I dispose of the writ
petition by passing the following directions:
1. The third respondent shall take immediate measures
for constituting a Medical Team to conduct the
termination of the petitioner’s pregnancy, on
production of a copy of this judgment.
2. The Medical Team shall, in their discretion and best
judgment, adopt the best procedure recommended in
the medical science to terminate the pregnancy and
save the life of the petitioner.
3. The petitioner shall file an undertaking authorising the
third respondent to terminate the pregnancy at her risk
and costs.
4. If the fetus is born alive, the hospital shall render all
the necessary assistance, including incubation and
treatment at any super-speciality, to ensure that the
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fetus survives. The baby shall be offered the best
medical treatment and the petitioner shall take full
responsibility and bear the expenses for the baby.
5. Before conducting the termination of the pregnancy,
the Medical Board shall reconfirm the fetal
abnormalities by performing a final scan.
6. The party shall appear before the Superintendent
T.D Medical College Hospital, Alappuzha on 26.06.2025.
sd/-
SHOBA ANNAMMA EAPEN
JUDGE
MBS/
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APPENDIX OF WP(C) 22872/2025
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE SCAN REPORT OF THE
PETITIONER DATED 11.6.2025
Exhibit P2 A TRUE COPY OF THE O.P.CARD DATED
12.6.2025 OF THE PETITIONER
Exhibit P3 A TRUE COPY OF THE O.P.CARD OF
NEUROSURGERY CLINIC OF THE 3RD RESPONDENT
MEDICAL COLLEGE DATED 13.6.2025
Exhibit P4 A TRUE COPY OF THE JUDGMENT REPORTED IN
2025 (2) KLT 347 IN W.A. 477/2025