The Jammu and Kashmir and Ladakh High Court allowed the medical termination of a 30 week unwanted foetus, observing that while exercising the powers under Article 226 of the Constitution, a Constitutional Court has got wider powers than what is prescribed under Section 3(2) of the MTP Act of 1971.
The directions were passed by Justice Sanjay Dhar while hearing a plea filed by a minor through her father seeking termination of pregnancy of minor.
After perusing the case diary the bench noted that on Feb 27th 2023, the father of the victim had lodged a report with the police alleging that is daughter, aged about 11 years has become pregnant because someone has committed rape upon her.
On the basis of this report, FIR for offences under Sections 363, 376, 506 IPC and 4 of POCSO Act came to be registered and investigation was set into motion.
The bench further noted that the victim had been subjected to medical examination whereby medical opinion had revealed that the sexual contact been made and patient is currently 30 weeks pregnant with a single line intrauterine fetus.
Adjudicating upon the matter Justice Dhar observed that the present case is a “sad and sordid” tale of a victim girl who has been made pregnant at the at the tender age of 11 years, adding that “She is studying only in the 4th class and is expecting a great future ahead of her.”
Explaining law applicable to the instant matter the court said that Rule 3B of the Medical Termination of pregnancy Rules 2003 clearly specify that that survivors of sexual assault or rape or incest as also the minors are eligible for termination of pregnancy upto 24 weeks.
In addition to this, Explanation-2 to Section 3 of the Act of 1971 provides that when pregnancy occurs because of rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman, the bench underscored.
The bench directed that if the child is born alive despite the attempts of medical termination of pregnancy, the doctors shall ensure that all necessary care is given to the child.
The concerned doctors were also directed to preserve the foetus for the purposes of DNA identification etc. with reference to the criminal case which has been registered against the accused.
Justice Dhar directed the government to bear all necessary expenses for termination of pregnancy of the victim.
The Principal GMC was directed to furnish report before the Registrar Judicial of the Court within ten days, where after the Registrar Judicial shall list the matter before the Court on 31 March to report compliance.