 Early Times Report
Jammu, May 21: The High Court of Jammu & Kashmir and Ladakh has refused to permit medical termination of pregnancy of a minor sexual assault survivor, holding that the Court cannot pass an order which may endanger the life and health of the victim, particularly when a duly constituted Medical Board has warned of grave medical complications.
Justice Wasim Sadiq Nargal dismissed the writ petition to the extent it sought permission for Medical Termination of Pregnancy, while directing the authorities to ensure complete medical care, protection, confidentiality and rehabilitation of the minor victim and the prospective child.
The petition was filed on behalf of Minor Victim “X” through her father, seeking urgent permission for termination of pregnancy arising out of alleged sexual assault and rape. The case relates to FIR No. 38/2026 registered at Police Station D.H. Pora, District Kulgam. The accused has already been taken into custody and the matter is under investigation.
Appearing for the petitioner, Advocate Asifa Rashid argued that the victim was a minor and the pregnancy was the direct consequence of rape. It was submitted that forcing the victim to continue the pregnancy would violate her right to life, dignity and bodily integrity under Article 21 of the Constitution. The counsel also relied on the provision under the MTP Act which recognizes that pregnancy caused by rape is presumed to constitute grave injury to the mental health of the victim.
The Court noted that the pregnancy had crossed the ordinary statutory limit under the Medical Termination of Pregnancy Act. At the time of filing of the petition, the gestational age was around 25 weeks and 5 days, and during consideration of the matter it had advanced to around 27 weeks.
Earlier, the High Court had directed constitution of a Medical Board to assess whether termination could be safely carried out. The proceedings were also held in-camera to protect the identity, privacy and dignity of the victim. After considering the medical assessment, the Court proceeded on the premise that the victim was a minor.
However, the Medical Board opined “Sympathy alone cannot be a ground for issuing directions where such directions may expose the person concerned to life-threatening complications. Judicial discretion must operate within the framework of medical science, statutory safeguards and constitutional limitations.”
The petitioner relied upon the Supreme Court judgment in S vs Union of India, where termination was permitted at 28 weeks. The High Court, however, distinguished the ruling, observing that in that case the Medical Board had found the minor physically fit for termination, whereas in the present matter the expert body had clearly warned of serious risk to the victim’s life and health.
Justice Nargal observed that the Court, while exercising writ jurisdiction, cannot disregard or sit in appeal over expert medical opinion, particularly when such opinion indicates a threat to life. The Court held that the paramount consideration must be preservation of life and minimization of risk to the health of the minor.
The Court further observed that sympathy alone cannot be a ground for issuing directions where such directions may expose the person concerned to life-threatening complications. Judicial discretion, the Court said, must operate within the framework of medical science, statutory safeguards and constitutional limitations.
While declining permission for MTP, the High Court directed that Government Lalla Ded Hospital, Srinagar, shall provide free pre-delivery and post-delivery care, hospitalization, medicines, investigations, dietary requirements, counselling and all necessary medical support to the victim.
The Court also directed the Medical Superintendent, Lalla Ded Hospital, the Nodal Officer, Directorate of Mission Vatsalya, J&K, and the SSPs of Kulgam and Srinagar to file monthly compliance reports before the Registry regarding the medical condition, care provided and overall welfare of the minor victim and the prospective child.
The writ petition was accordingly disposed of with directions for strict implementation of all assurances regarding care, protection, confidentiality and rehabilitation. (JNF) |