J&K&L High Court Directs Medical Board To Take Fresh Decision On Minor Rape Victim's Request For Termination Of 23 Weeks Pregnancy

The Jammu and Kashmir and Ladakh High Court has directed a medical board in Srinagar to undertake a fresh examination of a minor rape victim to take a final call on her request for termination of pregnancy of 22-23 weeks.

"Should the respondents 2 and 3 on the basis of said medical opinion/report decide to undertake termination of pregnancy of the petitioner-victim, necessary measures be also taken for preserving of DNA samples of the fetus. Needless to mention here that the petitioner-victim be provided appropriate free medical facilities in the event termination of pregnancy is undertaken," said Justice Javed Iqbal Wani in the order.

The minor through her father had approached the high court seeking permission for termination of her pregnancy before October 30, arguing that her plea will become "infructuous" once the pregnancy crosses 24 weeks.

She also sought a direction for preventing authorities from taking any coercive action against her or any Registered Medical Practitioner who terminates the pregnancy. The minor had been abducted last year and raped. When she was recovered recently, it was found that she is 22 weeks pregnant.

It was argued before court that the pregnancy has been causing great mental, psychological, social stigma and health danger to her. The court was told that Government Lalla Ded Hospital in Srinagar refused to undertake the termination of pregnancy, forcing her to approach the court.

The court on October 18 had directed the Medical Board to examine the victim and submit a report whether the pregnancy can be terminated. On October 21, the government counsel submitted the report of the medical board.

The medical board said the patient is 23-24 weeks pregnant. "Patient and her parents want pregnancy to be terminated as it is a cause of psychological trauma to them and there is social stigma associated to it. As the patient's gestational age is above 20 weeks, and is a teenage pregnancy which has a high risk of MTP. MTP can be undertaken with extra risk consent given by guardians/parents," said the board.

Pressing for an order for termination of pregnancy, the counsel representing the minor referred to the recent judgement of the Apex Court reported in 2022 LiveLaw (SC) 621 titled as X v. Principal Secretary Health & Family Welfare Department.

"The legal position in such kind of a case fairly seems to be well settled by various decisions of the Apex Court including judgement supra referred by the counsel for the petitioner wherein the Apex Court allowed in specific IGH cases termination of pregnancy beyond aforesaid stipulated period," said the court.

Analysing the contention urged by the victim and the medical report, the court passed following order to the authorities:

"The respondents 2 and 3 to undertake a fresh check up / examination of the petitioner-victim by a Medical Board including a Psychiatrist, a Radiologist as well and on the basis of opinion / report of the said Board, take a final call regarding termination of pregnancy of the petitioner-victim. Should the respondents 2 and 3 on the basis of said medical opinion/report decide to undertake termination of pregnancy of the petitioner-victim, necessary measures be also taken for preserving of DNA samples of the fetus. Needless to mention here that the petitioner-victim be provided appropriate free medical facilities in the event termination of pregnancy is undertaken."

Title: Ms. X (Minor) Vs. UT of J&K and others

Citation: 2022 LiveLaw (JKL) 197 

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