Jammu & Kashmir High Court Permits Minor Rape Victim To Medically Terminate 30 Weeks Old Pregnancy

The Jammu and Kashmir and Ladakh High Court recently allowed the medical termination of a 30 week unwanted foetus, observing that while exercising the powers under Article 226 of the Constitution, a Constitutional Court has got wider powers than what is prescribed under Section 3(2) of the MTP Act of 1971.

The directions were passed by Justice Sanjay Dhar while hearing a plea filed by a minor through her father seeking termination of pregnancy of minor.

After perusing the case diary the bench noted that on Feb 27th 2023, the father of the victim had lodged a report with the police alleging that his daughter, aged about 11 years has become pregnant because someone has committed rape upon her. On the basis of this report, FIR for offences under Sections 363, 376, 506 IPC and 4 of POCSO Act came to be registered and investigation was set into motion.

The bench further noted that the victim had been subjected to medical examination whereby medical opinion had revealed that the sexual contact been made and patient is currently 30 weeks pregnant with a single line intrauterine fetus.

Adjudicating upon the matter Justice Dhar observed that the present case is a "sad and sordid" tale of a victim girl who has been made pregnant at the tender age of 11 years, adding that "She is studying only in the 4th class and is expecting a great future ahead of her,".

Explaining law applicable to the instant matter the court said that Rule 3B of the Medical Termination of pregnancy Rules 2003 clearly specify that survivors of sexual assault or rape or incest as also the minors are eligible for termination of pregnancy upto 24 weeks. In addition to this, Explanation-2 to Section 3 of the Act of 1971 provides that when pregnancy occurs because of rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman, the bench underscored.

Referring to a cetena of Supreme court judgements on the issue, Justice Dhar observed that Constitutional Courts, on account of the fact that they are vested with wider powers, can permit termination of pregnancy beyond 24 weeks in appropriate and deserving cases.

"Thus, while exercising the powers under Article 226 of the Constitution, this Court has got wider powers than what is prescribed under Section 3(2) of the Act of 1971, which permits termination of pregnancy only when the length of pregnancy does not exceed a maximum period of 24 weeks", the bench maintained.

In view of the tender age of the victim, the bench said that if permission to terminate the pregnancy is not granted to the victim, who has expressed her desire to terminate the pregnancy, it will have serious consequences not only on her physical health but also upon mental health of the victim because she will have to live with the trauma and stigma of unwanted procreation throughout her life.

This will not be in her interest and would also not be in the interests of the child that may be born. In these circumstances, if permission is not granted to the victim to terminate her pregnancy, she would be exposed to a miserable future," the court said adding that the father of the victim has also expressed his desire that the pregnancy of the victim needs to be terminated and he has also filed a petition for that.

Justice Dhar further observed that whether termination of pregnancy of the victim at this stage would be medically feasible or whether it would involve any danger to her life, are the issues which have to be gone into by the experts in the relevant field, whereafter they have to take a decision as to whether or not the pregnancy of the victim should be terminated.

"In case the Medical Board is of the opinion that termination of pregnancy of the minor victim can be undertaken without risk to her life, the Principal, GMC, Srinagar, shall ensure that termination of pregnancy of the minor victim is undertaken by competent doctors in accordance with the provisions of the Medical Termination of Pregnancy (MTP) Act and rules framed thereunder and all other regulations and guidelines prescribed for the purpose," the court said.

Allowing the plea, the court directed the Principal, Government Medical College (GMC) Srinagar, to immediately constitute a Medical Board of a Gynaecologist, Paediatrician, Radiologist or Sonologist, Psychiatrist and any other expert that may be deemed necessary by the Principal to medically examine the victim on March 21.

The bench further directed that if the child is born alive despite the attempts of medical termination of pregnancy, the doctors shall ensure that all necessary care is given to the child.

Directing the government to bear all necessary expenses for termination of pregnancy of the victim, the bench asked the Principal GMC to furnish a report before the Registrar Judicial of the Court within ten days, whereafter the Registrar Judicial shall list the matter before the Court on March, 31 to report compliance.

Case Title: Ms. X (MINOR) Vs UT of J&K & Ors.

Citation: 2023 LiveLaw (JKL) 61

Counsel For Petitioner: Mr. Musavir Mir, Advocate.

Counsel For Respondent: Ms. Asifa Padroo, AAG.

Click Here To Read/Download Judgment