Grave Mental Injury To Woman: J & K HC Allows Minor Rape Victim To Medically Terminate Pregnancy Of Almost 25 Weeks [Read Order]

The Jammu and Kashmir High Court recently permitted a minor rape victim to terminate her pregnancy of 26 weeks.The High Court order reveals that as per the expert team, the medical opinion of which the Court had sought to decide the feasibility of the termination, the petitioner-victim was carrying a pregnancy of 24 weeks and 2 days on June 29. Vide order dated July 1, the Court allowed the termination subject to a fresh check-up by a Medical Board. Reportedly, the abortion of the girl took place on July 11.Section 3(2)(b) of Medical Termination and Pregnancy Act, 1971 prohibits the termination of pregnancy after a period of 20 weeks.Section 5 of the Act provides for some relaxation in mandatory prohibitive period of 20 weeks in as much as it allows that the provisions of sub-section (2) of Sec. 3 as 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 the registered medical practitioner in 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.The petitioner, before Justice Javed Iqbal Wani was a minor who came to be kidnapped by certain persons on 19-12-2019 and was subjected to rape. Upon lodging of a missing report by her father with the concerned police on 25-12-2019, F.I.R u/s 363/109 IPC got registered, but under the influence of the said persons, the police concerned did not add offences punishable u/s 376 IPC and POSCO Act in the matter. Upon being recovered by the concerned police, the petitioner was handed to her parents on 25-04-2020, where after a medical checkup was stated to have been conducted on 12-05-2020. During the conduct of the ultrasound test on 06-05-2020, she was found to be pregnant by 21 weeks.On June 26, the High Court directed medical examination of the petitioner by an expert team seeking medical opinion as to whether termination of pregnancy of the petitioner – victim would be medically permissible and feasible. The team, upon examination of the petitioner – victim on June 29, gave the following opinion:"...............After thorough clinical examination, USG radiological examination and lab. Investigation, the board of doctors is of the opinion that she is carrying 24 weeks & 2 days of pregnancy, termination of which is not allowed under MTP act, however, she can undergo termination of pregnancy after correction of anemia."The Court, on June 30, directed further examination of the petitioner by a Psychologist, who opined that the victim does not have any active psychopathologies and at present her mental status examination is normal. While referring to explanation (I) appended to sub section 2 of section 3 of the Act of 1971, the counsel for the petitioner contended that the alleged pregnancy of the petitioner – victim, having been caused by the alleged rape, constitutes a grave injury to the mental health of the petitioner – victim. Accordingly, it was pleaded that the rider and restraint, as provided in sub section 2(i) of section 3 of the Act of 1971 is relaxed under the provisions of section 5 of the Act of 1971 which according to the counsel is incorporated as an enabling provision beneficial to the pregnant woman seeking termination beyond aforesaid stipulated period."The legal position in such kind of a case fairly seems to be well settled by various decisions of the Apex Court wherein the Apex court allowed in specific cases termination of pregnancy beyond aforesaid stipulated period", noted Justice Wani.Accordingly, the bench ordered to undertake a fresh check up/examination of the petitioner-victim by a Medical Board including a Psychiatrist, and on the basis of opinion/report of the said Board, to take a final call regarding termination of pregnancy of the petitioner-victim. "Should the respondents 4&5 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 foetus and for the said purpose, the respondents 2&3 be also associated therewith", added the bench, in view of the trial in the rape case. The bench clarified that the petitioner-victim be provided appropriate free medical facilities in the event termination of pregnancy is undertaken.The Lok Sabha passed the Medical Termination of Pregnancy (MTP) Bill, 2020 on 17th March 2020 to amend section 3 of MTP Act, 1971. In its Statement of Objects and Reasons, the Bill identifies that with the advancement of medical technology there is a scope to increase the upper gestational limit for terminating pregnancies, which up till now stood at twenty weeks, but with the passing of the Bill, would stand at twenty-four weeks.Click Here To Download Order[Read Order]

Grave Mental Injury To Woman: J & K HC Allows Minor Rape Victim To Medically Terminate Pregnancy Of Almost 25 Weeks [Read Order]

Mehal Jain

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