J&K&L High Court directs Medical Board to take final call on termination of minor rape victim's pregnancy

Srinagar: The High Court of Jammu and Kashmir and Ladakh directed the Medical Board in Srinagar to undertake a fresh check-up/examination of a minor who had filed a petition seeking the termination of her 22-23 weeks old pregnancy and asked them to take a final call based on the report. 

The bench of Justice Javed Iqbal Wani in its order issued on 21st October 2022 directed that necessary measures should be taken for preserving the DNA samples of the fetus if the report of the board affirms the termination of the pregnancy, adding that "the petitioner-victim be provided appropriate free medical facilities in the event termination of pregnancy is undertaken." 

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The petitioner, who is a minor, was reported to be kidnapped and raped, following which her father had filed an FIR on 10th November 2021. After she was found by the police, a medical examination conducted on 16th October 2022 revealed that she was pregnant by 22 weeks. 

Stating that the pregnancy has been causing great mental, psychological and social stigma besides health danger, she filed a petition in the high court through her father after the Head of the Department, Gynecology, LD Hospital, Government Medical College, Srinagar, refused to undertake the process of termination of her pregnancy whom she had approached first. 

She referred to section 3 of the Medical Termination of Pregnancy (Amendment) Act, 2021 which permits termination of pregnancies exceeding 20 weeks and less than 24 weeks in case of special categories of women, which includes rape survivors. 

The petition sought to terminate the ongoing pregnancy through registered medical practitioners at any approved private or government center or Hospital before 30th October 2022, as her relief will be infructuous after that as the pregnancy will be of around 24 weeks by that time.

Further, the petitioner asked the court to issue a writ, order, or direction restraining the respondents from taking any coercive action or criminal proceedings against the petitioner or any Registered Medical Practitioner terminating the pregnancy of the petitioner at any approved private center or hospital registered by Government of J&K. 

While hearing the case on 18th October 2022, the court had directed the medical board to examine the minor and make a report to the court as to whether the pregnancy could be terminated at this stage having regard to the health condition of the victim. The Medical Superintendent of LD Hospital, Srinagar, was directed to get the victim examined by a board and an expert psychologist and have his/her opinion in the matter as well. 

On October 21, the counsel appearing for the government submitted the view of the Medical Superintendent, Government Lalla Ded Hospital, Srinagar, along with a report of the Head of the Department, Gynae and Obst. Government Lalla Ded Hospital, Srinagar to the court. 

The team made the following observations, "Patient is 23-24 weeks of pregnancy as per history examination and USG done at LD Hospital (USG attached). 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 patients gestational age is above 20 weeks, and is a teenage pregnancy which has a high risk of MTP, which could only be undertaken with extra risk consent given by guardians / parents.  FSL lab to be informed for collecting products of conception for further DNA analysis and paternity testing."

The counsel for the petitioner, while referring to Section 3 of the MTP Act submitted that "the alleged rape, constitutes a grave injury to the mental health of the petitioner- victim and that the rider and restraint of 24 weeks, as provided in sub section 2(i) of section 3 of the Amended Act of 2021 is relaxed under the provisions of section 5 of the Act of 2021 which according to the learned counsel is incorporated as an enabling provision beneficial to the pregnant woman seeking termination beyond aforesaid stipulated period." 

It also referred to a recent judgement of the Supreme court in the X v. Principal Secretary Health & Family Welfare Department case, observing that, "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."

After hearing the contentions of the petitioner-victim, report filed by the respondents along with the medical opinions and taking into account the judgements of the Apex Court, the court gave its ruling while disposing the petition, 

"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."

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