In the matter of Kerala State Legal Services Authority v. Union of India & Ors., the Kerala High Court on 26th July 2021 permitted to terminate the pregnancy of the victim, because she is a rape victim and considering the opinion of the Medical Board, at the earliest as per the provisions of the Medical Termination of Pregnancy Act, 1971 (the Act), without insisting on the consent of the victim.
The victim was wandering within the limits of the police station and was taken by the police to the Mental Health Centre. It was found by the Medical Board that she was pregnant, having a gestation period of eight weeks. As her relatives could not be traced, the plight of the victim to the District Legal Services Authority was sought.
The current writ petition is filed by the Kerala State Legal Services Authority seeking permission for medical termination of the pregnancy of the victim as she is suffering from mental retardation with psychosis and is under treatment for the same. It was alleged by them that although according to Section 3(4)(a) of the Act, if the victim is a major, her consent is required for the termination, the victim is not in a position to grant consent for termination of the pregnancy.
The Court held that:
- Since the gestation period does not 20 weeks, the victim’s pregnancy can be terminated based on a registered medical practitioner’s opinion on grounds that the continuation of her pregnancy would cause a grave injury to her mental health.
- Keeping in mind sub-section (2)(b)(i) of Section 3 of the Act and Explanation 2 to the said sub-section, the pregnancy could be terminated based on the opinion of two medical practitioners on the above lines.
- The doctrine of “parens patriae” has been evolved in common law and is applied to situations where the State must take decisions to protect the interests of those persons who are unable to take care of themselves.
- The person involved in the case is a rape victim and considering the opinion of the Medical Board, keeping the best interest of the victim in mind, the Court permitted the termination of her pregnancy.
- Further, the Court observed that this shall be done without insisting on the consent of the victim.
– Esha Shah, Paralegal – POSH at Work