Mr. Shaji P. Chaly, J. - This writ petition is filed by the petitioner seeking direction to the 2nd respondent to conduct Medical Termination of Pregnancy (MTP) for the petitioner, and for other related reliefs. In order to maintain privacy, the name of the petitioner will be hereinafter referred to as X and the privacy shall be maintained by the Registry while issuing certified copy of the judgment, and while forwarding the judgment for reporting and other purposes. Material facts necessary for the disposal of the writ petition are as follows:

2. Petitioner is a victim of rape and is in need of Medical Termination of Pregnancy. She approached the Government Hospital, Kasaragod, but they declined to do MTP. Thereafter, she approached the 2nd respondent for termination, but there also, it was informed that MTP cannot be conducted as the pregnancy period has exceeded 20 weeks. It is in this background, this writ petition is filed seeking direction to respondent No. 2 to conduct MTP, and a direction to the 3rd respondent to collect sample and do the needful for DNA test of the child in the womb.

3. According to the petitioner, intimacy was developed by her with one person while she was working in a shop, and the said person has cheated the petitioner and by giving promise of marriage, she was successively subjected to sexual relationship, by which she became pregnant. However, the said person solemnized marriage with another lady on 14.05.2016, and accordingly she preferred a complaint, evident from Ext.P1 FIR.

4. Petitioner was admitted in Government Hospital, Kasaragod on 18.07.2016 and was treated for three days and discharged on 21.07.2016. Even though petitioner requested for MTP, the hospital authorities told her to come on another day. Thereafter, again she was admitted as in patient on 01.08.2016 and discharged on 03.08.2016. However, nothing took place. Again, she went to the hospital on 17.10.2016 and was treated as out patient. Being confronted with such situation, petitioner approached the 2nd respondent for MTP. However, stating that the pregnancy period has exceeded 20 weeks, 2nd respondent refused to conduct MTP. These are the circumstances persuaded the petitioner to approach this Court seeking the reliefs sought for.

5. Heard learned counsel for the petitioner and the learned Government Pleader, and perused the documents on record and the pleadings put forth by the petitioner.

6. Ext.P1 FIR reveals, petitioner has filed a complaint against the person and police has registered a crime, alleging offence under Section 376 of the Indian Penal Code. Therefore, there is a prima facie case put forth by the petitioner. Now, the question is whether MTP could be done by the 2nd respondent as per the provisions of the Medical Termination of Pregnancy Act, 1971 [ for short, Act 34 of 1971], and the Rules and Regulations thereto. Section 3(1) of the Act enables a registered medical practitioner to terminate pregnancy in accordance with the provisions of this Act, irrespective of the penal provisions contained under the Indian Penal Code. Subsection (2) of Section 3 permits termination, subject to subsection (4), which are as follows:

"(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 to her 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 reads as follows:

"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".

7. Therefore, on evaluating the circumstances under sub-section (2)(a), a pregnancy could be terminated if it does not exceed twelve weeks. However, an exception is carved out by which a pregnancy which exceeds the period of twelve weeks, but does not exceed twenty weeks, if not less than two registered medical practitioners are of the opinion formed in good faith that 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, it could be done. Explanation 1 thereto provides, where any pregnancy is alleged by the pregnant woman to have been caused by rape, the consequences thereto shall be presumed, to constitute a grave injury to the mental health of the pregnant woman. Petitioner is aged more than 18 years and therefore consequence of subsection (3) do not arise.

8. Therefore, on an evaluation of sub-section (2) as such, it is clear, the maximum period up to which a MTP can be done is twenty weeks period of pregnancy. However, Section 5 takes care of a situation, in order to save the life of the pregnant woman. Section 5(1) reads as follows:

"5. Sections 3 and 4 when not apply.-(1) The provisions of section 4, and so much of the provisions of sub-section (2) of section 3 as relate to the length of the pregnancy and the opinion of not less than two registered medical practitioners, shall not apply to the termination of a pregnancy by a registered medical practitioner in a 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".

9. Therefore, on an evaluation of the said provisions, it is specific and clear, if it is in the opinion of two medical practitioners, formed in good faith, that the MTP is necessary to save the life of the pregnant woman, the stipulations contained under sub-section (2) of Section 3 vanish.

10. When the situation in the present context is analysed, petitioner is not mentally prepared to deliver a child and such situation can cause innumerable mental stress and change of attitude in the normal life of the petitioner. Moreover, the circumstances explained show that petitioner did not expect such conduct and behaviour from the person with whom she maintained intimate and affectionate relationship. The circumstances narrated will show, petitioner is and was not mentally prepared to accept the state of affairs at which she is now. The said circumstances, in my view is to be treated as one under Section 5 of the Act.

11. The Apex Court had occasion to consider such a situation in Ms. X v. Union of India and others [AIR 2016 SC 3525 [LQ/SC/2016/942] ]. There, the Court was considering a question with respect to termination of 24 weeks pregnancy and held in paragraph 6 as follows:

"6. Having perused the Medical Report (relevant extracts whereof have been reproduced herein above), we are satisfied, that a clear finding has been recorded by the Medical Board, that the risk to the petitioner of continuation of her pregnancy, can gravely endanger her physical and mental health. The Medical Board has also expressed an advice, that the patient should not continue with the pregnancy. In view of the findings recorded in para 6 of the report, coupled with the recommendation and advice tendered by the Medical Board, we are satisfied that it is permissible to allow the petitioner to terminate her pregnancy in terms of Section 5 of the Medical Termination of Pregnancy Act, 1971. In view of the above, we grant liberty to the petitioner, if she is so advised, to terminate her pregnancy".

12. Reckoning the facts and circumstances and the law involved, I am of the considered opinion that 2nd respondent shall take necessary steps in conducting MTP in accordance with the provisions of Act 34 of 1971, after securing required permission from the petitioner or any of her close relatives, in compliance with the medical ethics as per the relevant Act and Rules, and after having sufficient and necessary consultation, even by constituting a Medical Board.

13. There will be a direction also to the 2nd respondent to preserve sufficient material if MTP is done in order to conduct the DNA test, enabling the 3rd respondent to carry on the investigation with sufficient proof and evidence in respect of Ext.P1 FIR registered. The directions so issued shall be complied with by the 2nd respondent at the earliest and within a period of one week from the date of receipt of a copy of this judgment.

14. The writ petition is allowed accordingly.