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Termination of rape survivor’s pregnancy: HC directs MS LD hospital to form medical board

Post by Syed Rukaya on Wednesday, October 26, 2022

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Srinagar, Oct 25: The High Court of Jammu & Kashmir and Ladakh has directed Medical Superintendent and Head of the Department (HoD), Obstetrics and Gynecology, Government Lalla Ded (LD) Hospital, Srinagar to take a final call, on the basis of opinion of Medical Board, regarding termination of 23-24 week pregnancy of a minor alleged rape victim.
The court directed the Medical Superintendent and HoD, Obstetrics and Gynecology, LD Hospital to undertake a fresh check up/ examination of the minor victim by a Medical Board including a Psychiatrist, a Radiologist as well and on the basis of opinion or report of the said Board take a final call regarding termination of pregnancy of the victim girl.
In case Medical Superintendent and HoD, Obstetrics and Gynecology, LD Hospital on the basis of said medical opinion or report decide to undertake termination of pregnancy of the minor girl, Justice Javed Iqbal Wani directed the authorities to take necessary measures for preserving 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,” the court said while disposing of a plea.
The court passed the directions after government counsel submitted a communication filed by the Medical Superintendent along with a report of the HoD, Obstetrics and Gynecology, Lalla Ded Hospital, which revealed that the patient victim is 23-24 weeks of pregnancy as per history examination and USG done at LD Hospital.
The report further revealed that the 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 with it.
"As the patient's gestational age is above 20 weeks, and is a teenage pregnancy which has a high risk of MTP," it stated.
The plea filed under Article 226 by a minor girl through counsel Vaseem Aslam has sought direction to the respondents to terminate her ongoing pregnancy through registered medical practitioners at any approved private or government center or Hospital before October 30, this year as her relief will be infructuous after that as the pregnancy will be of around 24 weeks by that time.
The petitioner has also sought a direction including one in the nature of prohibition, 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.
Referring to section 3 of the Medical Termination of Pregnancy (MTP) (Amendment) Act, 2021 and Rules made thereunder, counsel Vaseem Aslam contended that the alleged pregnancy of the victim, having been caused by the alleged rape, constitutes a grave injury to the mental health of the victim.
He submitted 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 counsel is incorporated as an enabling provision beneficial to the pregnant woman seeking termination beyond aforesaid stipulated period.
Citing a recent Supreme Court judgment in a case "X v. Principal Secretary Health & Family Welfare Department" the court noted that Clause (a) of sub-section (2) of Section 3 permits the termination of pregnancy where the length of pregnancy does not exceed twenty weeks.
It recorded that Clause (b) permits termination where the length of pregnancy exceeds twenty weeks but does not exceed twenty four weeks for such categories of women "as may be prescribed by Rules made under this Act."
The bench noted that however, an opinion must be formed by not less than two registered medical practitioners that inter alia "the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health".
The court while relying on the Supreme Court judgments noted that the legal position in such kind of a case fairly seems to be well settled by various decisions of the Apex Court including judgements referred by the counsel for the petitioner wherein the Apex Court allowed in specific IGH cases termination of pregnancy beyond aforesaid stipulated period.
As per the petitioner girl, she was kidnapped and abducted and was subjected to rape.
Upon lodging of a missing report by her father with the concerned police on November, 10, 2021, an FIR under sections 363, 366-A, 109 IPC and 3 and 4 of the Protection of Children from Sexual Offence (POCSO) Act, 2012 was registered in Police Station Kral Khud, Srinagar.
It was stated that the petitioner upon being recovered by the concerned police, was handed to her parents, where after a medical checkup was conducted.
As per the petitioner, during the conduct of the ultrasound test on October, 16 this year, she was found to be 22 weeks pregnant.

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