HC allows termination of 24-week pregnancy of minor rape survivor, says statute cannot override constitutional protection

23/09/2026

Srinagar, Sep 22: The High Court of Jammu & Kashmir and Ladakh has allowed a petition seeking medical termination of the pregnancy of an 11-year-old minor who was allegedly subjected to sexual assault, directing the authorities to take immediate steps for the procedure.
Justice Wasim Sadiq Nargal passed the judgment in a petition filed on behalf of the minor through her father. The petitioner was represented by Mr Shabir Ahmad Najar, Advocate, assisted by Mr Sajad Ahmad Shah, Advocate, while the respondents were represented by Mr Faheem Nisar Shah, Government Advocate.
The Court was informed that the minor was found to be pregnant during a medical examination after developing health problems. She subsequently disclosed that she had allegedly been subjected to sexual assault by an unknown person. The judgment records that the person allegedly responsible had not been identified or arrested at the time of its pronouncement.
Earlier, the High Court had directed the Principal, Govern-ment Medical College, Baramulla, to constitute a Medical Board to determine whether termination of the pregnancy was medically feasible. The Board, after conducting multidisciplinary clinical, gynaecological, radiological, psychiatric, psychological, paediatric, anaesthetic and forensic assessments, opined that the minor was physically & mentally fit to undergo medical termination, subject to applicable legal provisions & specialist supervision.
The Medical Board assessed the pregnancy at approximately 22 weeks and five days on September 11 and stated that termination was medically feasible, although it carried increased maternal and procedural risks.
The Court noted that Rule 3-B of the Medical Termination of Pregnancy Rules, 2003, includes minors and survivors of sexual assault, rape or incest among categories eligible for termination up to 24 weeks. By the time the judgment was pronounced, however, the pregnancy had advanced to approximately 24 weeks and two days.
Justice Nargal observed that the crossing of the statutory period during the judicial consideration of the matter could not, in the circumstances of the case, by itself result in denial of constitutional protection to the minor. The Court noted that the delay arose during the process of obtaining medical opinion and judicial consideration and was not attributable to deliberate inaction by the petitioner.
Referring to a Supreme Court judgment in S v. Union of India, the High Court observed that the absence of a statutory remedy in particular circumstances does not bar constitutional relief. The Court considered the circumstances of the minor and the medical opinion before granting the relief.
"Having regard to the totality of the circumstances," the Court held that there were sufficient grounds to grant the relief and directed the respondents to take immediate and consequential steps for carrying out the medical termination.
The Principal/Medical Superintendent of Associated Hospital, Government Medical College, Baramulla, was directed to make all necessary arrangements at the earliest. The Court also directed that the minor be allowed to have her mother or lawful guardian present during the procedure, subject to medical protocol, and that psychological counselling and support be provided before and after the procedure.
As the alleged offender had not been apprehended, the Court directed preservation of relevant material arising from the termination, wherever medically and legally permissible, for DNA profiling and other forensic examination in accordance with law. It further ordered that the identity and medical records of the minor remain confidential.
The Court directed the authorities to bear expenses connected with the medical termination and related care. It also ordered that the minor be immediately referred and transported to a better-equipped medical centre if treating specialists considered it necessary. The petition was disposed of accordingly.

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