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The Jammu and Kashmir HC recently permitted the termination of 25 weeks pregnancy of a minor rape victim by passing an order after medical opinion from an expert team to check it’s feasibility. The petition who was the victim was 24 weeks and 2 weeks pregnant on June 29th. The court allowed and passed the order on July 1st of the termination subject to a fresh check-up by a Medical Board. Reports say that the abortion happened on July 11th.
According to the Medical Termination and Pregnancy Act, 1971 section 3(2)(b) termination of pregnancy is prohibited after 20 weeks of time. But section 5 of the Act eases the mandatory prohibition and clause 1 states that The provisions of section 4, and so much of the provisions of sub-section (2) of section 3 as relate 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 a registered medical practitioner in a 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.
Explanation 1.-For the purposes of this section, the expression "owner" in relation to a place means any person who is the administrative head or otherwise responsible for the working or maintenance of a hospital or place, by whatever name called, where the pregnancy may be terminated under this Act.
Explanation 2.-For the purposes of this section, so much of the provisions of clause (d) of section 2 as relating to the possession, by a registered medical practitioner, of experience or training in gynecology and obstetrics shall not apply.
The petition in front of Justice Javed Iqbal Wani was a minor who was kidnapped and raped. Her father lodged a police complaint and with the concerned police. Upon being recovered by the concerned police, the petitioner was handed to her parents on 25-04-2020. After a medical check-up and ultrasound did on 06-05-2020, she was found to be pregnant by 21 weeks.
The HC on June 26th directed medical examination of her by an expert group with a view to seeking a medical opinion as to whether termination of pregnancy of the victim would be medically allowed and practicable. The team said,
".......After a thorough clinical examination, USG radiological examination, and lab. The 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 victim was also examined by a Psychologist, who said that her current mental status examination is normal. The counsel representing the petitioner- victim contended that the rape could constitute a grave injury to her mental health.
Accordingly, it also pleaded that the provisions under section 2(i) and 3 are relaxed under section 5 of the ACT of 1971. Therefore it serves as a provision benefiting the pregnant woman seeking termination beyond an aforesaid specified period.
Justice noted that "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 the aforesaid stipulated period.”
Therefore, the bench stated that a medical board must take up a fresh check-up of the petitioner-victim including a Psychiatrist and in their opinion, the final call for the termination of pregnancy will be taken. It also ordered to take necessary measures for preserving DNA samples of the fetus for the said purpose. The bench clears that free medical facilities in the event termination of pregnancy will be provided to the petitioner-victim.
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