J&K&L High Court Allows Termination Of 24-Week Pregnancy Of Minor Rape Survivor, Says Statute Cannot Override Constitutional Protection

Justice Wasim Sadiq Nargal made the observation while allowing a petition filed on behalf of an 11-year-old minor girl seeking medical termination of her pregnancy. The Court noted that the pregnancy had been assessed at approximately 22 weeks and 5 days when the Medical Board examined her on September 11, but had crossed 24 weeks by the time the judgment was pronounced on September 22.

The Court directed the authorities to take immediate consequential steps for termination, subject to medical assessment and the safeguards recommended by the Medical Board.

11-Year-Old Discovered Pregnancy During Medical Examination

The minor, along with her family, had shifted from Reasi to Wussan Bangil, Kwarhama in Baramulla in March 2026 for rearing cattle and livestock.

During her stay in Kashmir, she developed fever, vomiting, cough and abdominal pain and was initially taken to a local medical practitioner. She was subsequently examined at Sub-District Hospital, Magam, where an ultrasound revealed that she was pregnant.

Upon being questioned by doctors, the minor disclosed that she had been forcibly subjected to sexual intercourse by an unknown person during her stay in Kashmir. The matter was reported to the police and the minor was thereafter taken into protective custody and lodged in a shelter home. The alleged offender had not been identified or arrested when the petition was considered.

The petitioner's counsel submitted that continuation of the pregnancy would expose the 11-year-old to serious risks to her physical and mental health and invoked the protection of Article 21 of the Constitution, including the rights to bodily integrity, dignity and health.

The Government, represented by Government Advocate Faheem Nisar Shah, did not oppose the relief, particularly in view of the Medical Board's opinion and the law laid down by the Supreme Court.

Medical Board Found Termination Medically Feasible

Earlier, on September 8, the High Court had directed the Principal, Government Medical College, Baramulla to constitute a Medical Board to assess whether termination was medically feasible.

The Board conducted a multidisciplinary assessment covering clinical, gynaecological, radiological, psychiatric/psychological, medical, paediatric, anaesthetic and forensic aspects.

It opined that the minor was “physically and mentally fit to undergo Medical Termination of Pregnancy” and that the pregnancy, then approximately 22 weeks and 5 days, could be terminated subject to the applicable law, specialist supervision and necessary medical precautions.

Rule 3-B Permits Termination Up To 24 Weeks For Rape Survivors, Minors

The Court examined the statutory framework under the Medical Termination of Pregnancy Act, 1971 and the Medical Termination of Pregnancy Rules, 2003. Referring specifically to Rule 3-B, the Court noted that survivors of sexual assault, rape or incest and minors fall within the categories eligible for termination of pregnancy up to 24 weeks.

The Court observed that the Medical Board had assessed the pregnancy at 22 weeks and 5 days on September 11, when it was within the statutory period. However, by September 22, when the judgment was pronounced, the gestational age had advanced to approximately 24 weeks and 2 days.

Constitutional Remedy Cannot Be Denied Merely Because Statutory Period Has Expired

The Court then addressed the crucial question whether crossing the 24-week threshold during the pendency of the proceedings could itself defeat the minor's prayer for termination. It answered in the negative.

Justice Nargal observed,

“The mere fact that the pregnancy has crossed twenty-four weeks by the date of pronouncement cannot, in the peculiar facts of the present case, be considered in isolation or result in the denial of constitutional protection to the minor petitioner.”

The Court noted that the pregnancy was the consequence of sexual assault upon an 11-year-old child and that the Medical Board had specifically found termination medically feasible.

Significantly, the Court found that the delay was not attributable to any deliberate inaction by the petitioner, but had occurred while the Court was obtaining medical opinion and considering the relief sought.

The Court held that the statutory framework under the MTP Act and Rule 3-B must therefore be read harmoniously with the constitutional jurisdiction of the High Court under Article 226.

While holding so Justice Nargal drew strength from the Supreme Court's decision in S v. Union of India, SLP No. 14454/2026, decided on April 24, 2026. Referring to the Supreme Court's reasoning, the Court noted that constitutional remedies cannot be denied merely because the circumstances of a case fall outside the statutory remedy.

The Supreme Court had observed that,

“A lack of remedy under a Statute does not bar a constitutional remedy.”

It had further held that Constitutional Courts, when confronted with an unwanted pregnancy beyond the statutory period, should assess the circumstances from the perspective of the woman seeking termination rather than mechanically compelling her to carry the pregnancy to term.

11-Year-Old Cannot Be Compelled To Carry Pregnancy To Term

Applying these principles to the case, the High Court held that the minor could not be compelled to carry the pregnancy to term.

“The victim, being a minor child aged about 11 years, cannot be compelled to carry to term a pregnancy resulting from the sexual assault committed upon her”, Justice Nargal remarked.

The Court emphasised the minor's tender age and vulnerability, the circumstances in which the pregnancy had arisen, her physical and mental condition and the opinion of the Medical Board as relevant factors which could not be ignored while considering the request for termination.

Finding sufficient grounds for granting relief, the Court allowed the petition and directed the authorities to take all necessary steps for termination of the pregnancy.

Accordingly, the Court directed the Principal/Medical Superintendent, Associated Hospital, Government Medical College, Baramulla, to make arrangements for the procedure at the earliest possible opportunity.

The minor was permitted to have her mother and/or lawful guardian present during the procedure, subject to medical protocol, and was directed to be provided psychological counselling and support before and after the termination.

Since the alleged accused had not yet been apprehended and material arising from the termination could have relevance to the criminal investigation, the Court directed preservation of the foetal tissue/material, wherever medically and legally permissible, for DNA profiling and such other forensic examination as may be required.

The Court further directed that the identity and medical records of the minor be kept confidential and that disclosure be restricted to persons or authorities for whom it was necessary for treatment, investigation or compliance with law.

The petition was accordingly disposed of in the above terms.

Case Title: XXXX (Minor) v. Union Territory of J&K & Ors.

Citation: 2026 LiveLaw (JKL) 326

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