Holding

The Court held that, notwithstanding the pregnancy exceeding 24 weeks, termination may be ordered based on the medical board’s opinion and the victim’s best interests under the MTP Act.

Summary

The Court considered an application filed by a 17‑year‑7‑month‑old rape victim seeking termination of her 24‑week pregnancy under Articles 226, 227 of the Constitution, Section 528 of the Bharatiya Nagrik Suraksha Sanhita, 2023 and the Medical Termination of Pregnancy Act, 1971. A medical board comprising gynaecologists, psychiatrists and other specialists examined the victim and confirmed that termination could be performed in accordance with the MTP Amendment Act, 2021. Relying on Supreme Court pronouncements that pregnancy resulting from sexual assault constitutes grave mental injury and that the MTP Act permits termination up to 24 weeks for minors and rape survivors, the Court held that the victim’s best interests justified the order. The Court also directed that DNA samples be taken from the foetus for investigative purposes. Consequently, the Court ordered the Guru Gobind Government Hospital to assemble a senior medical team and carry out the termination urgently, while providing post‑procedure care and ensuring the child’s welfare if born. The petition was thereafter disposed.

Issues considered

Whether a court may direct medical termination of a pregnancy exceeding 24 weeks in a minor rape victim.
Whether the medical board’s opinion under the MTP Act suffices to authorize termination beyond the statutory gestational limit.
Whether DNA sampling of the foetus can be ordered as part of the investigation.

Legislation cited

Medical Termination of Pregnancy Act, 1971s. 3, s. 3(2), s. 4

Subjects

medical termination of pregnancyrape victimminorMTP Actconstitutional rightsbest interest of the childDNA samplingjudicial directionmental health

Judgment

R/SCR.A/6247/2026 ORDER DATED: 04/05/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 6247 of 2026

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XYZ THRO KAMUBEN W/O DEVABHAI SAVABHAI MARU
Versus
STATE OF GUJARAT & ORS.
==========================================================
Appearance:
MR VH KANARA(1881) for the Applicant(s) No. 1
MR D V CHAUHAN for NISHITH P ACHARYA(9308) for the Applicant(s) No.
1
MR H K PATEL, APP for the Respondent(s) No. 1
==========================================================

CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY

Date : 04/05/2026

ORDER

1. The present application has been preferred by the applicant-victim
under Articles 226 and 227 of the Constitution of India along with
Section 528 of the Bharatiya Nagrik Suraksha Sanhita, 2023 as well as
under the provisions of the Medical Termination of the Pregnancy Act,
1971, in connection with the FIR being No. 11202014260319 of 2026
registered with the Dhrol Police Station, Jamnagar for the offences
punishable under Sections 137(2), 87 of BNS, for a direction to the
respondent authority to terminate the pregnancy of the applicant-victim
who is aged 17 Years and 7 Months, at the earliest, which is in the best
interest of the victim considering her physical health and incident of rape
causing grave injury to her mental health.

2. On 30.04.2026, this Court passed the following order :-
"Learned Advocate appearing for the petitioner submitted that the
petitioner herein is 17 years and 7 months old and is the victim of the
POCSO offence and because of the incident, she has attained pregnancy
and presently she is pregnant by 24 weeks and 5 days. She is not

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desirous of continuing the pregnancy, and therefore, seeks to have the
same medically terminated.
2. Let the petitioner be examined by the team of expert doctors,
consisting of the Head of the Department of Gynecology at the Civil
Hospital, Jamnagar along with the other expert doctors on 01.05.2026.
The report shall be submitted before this Court on 04.05.2026.
3. Stand over to 04.05.2026. Direct service is permitted today."

3. Pursuant to the order passed by this Court dated 30.04.2026, the
learned APP received a report from the Committee – Assistant Professor,
Professor and Senior Resident, dated 01.05.2026 and produced before this
Court today. The said report is ordered to be taken on record. On perusing
the report, it appears that after examining the applicant-victim, the
doctors from different branches/ departments, viz. gynaecologist,
psychiatrist, physician and radiologist found the applicant-victim’s
pregnancy is 24 weeks, so termination of pregnancy can be done as per
MTP Act.

4. Heard learned Advocates for the respective parties and considered
the opinion/report submitted by the Committee, Associate Professor,
Obsetrics & Gynaecology Department, Guru Gobind Govt. Hospital,
Jamnagar, dated 01.05.2026.

5. On hearing both the sides, this Court has noticed that the applicant-
victim is alleged to have been raped by the accused named in the FIR
being 11202014260319 of 2026 registered with the Dhrol Police Station,
Jamnagar for the offences punishable under 137(2), 87 of BNS.

6. A panel of doctors have opined that, the applicant-victim is already
carrying about 24 weeks of pregnancy with a specific report/opinion of
the empaneled doctors that medical termination of pregnancy can be

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performed as per the guidelines of the MTP Amendment Act, 2021.

7. Learned APP has urged before this Court that the Court may, in a
given set of circumstances, issue a direction for termination of pregnancy.
However, the tissues from the fetus may be directed to be handed over for
the purpose of DNA sampling in a scientific manner to the Investigating
Officer.

8. In the case of X vs. Union of India and Another (Miscellaneous
Application No.2157 of 2023 in Writ Petition (Civil) No.1137 of 2023), the
Hon’ble Supreme Court has summarised the law regarding the medical
termination of pregnancies. In paragraph-13, the Hon’ble Supreme Court has
observed thus :

“Medical termination of pregnancies

13. The termination of pregnancies is governed by the MTP Act and
the rules framed under it. The MTP Act is a progressive legislation
which regulates the manner in which pregnancies may be terminated.
Section 3 spells out certain conditions which must be satisfied before a
pregnancy can be terminated. The conditions depend upon the length of
the pregnancy. Where the length of the pregnancy does not exceed
twenty weeks, one Registered Medical Practitioner must be of the
opinion, formed in good faith, that:

a. 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 anguish caused by a pregnancy which occurs due to the
failure of a contraceptive method is presumed to constitute a grave
injury to the mental health of the woman; or

b. There is a substantial risk that if the child were born, it would
suffer from any serious physical or mental abnormality.

Where any pregnancy is alleged by the pregnant woman to have been
caused by rape, the anguish caused by the pregnancy is presumed to
constitute a grave injury to the mental health of the woman. The

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presumption adverted to in (a) above makes it evident that the MTP Act
recognizes the autonomy of the pregnant woman and respects her right
to choose the course of her life.

14. Where the length of the pregnancy exceeds twenty weeks but does
not exceed twenty-four weeks, two RMPs must be of the opinion
discussed in the preceding paragraph. The categories of women where a
pregnancy beyond 20 weeks and up to 24 weeks may be terminated are
permitted to be prescribed by rules made by the delegate of the
legislature. Rule 3B of the MTP Rules (as amended in 2021) provides
grounds for the termination of a pregnancy up to twenty-four weeks.
The termination may be allowed in the following cases or for the
following persons:

a. Survivors of sexual assault or rape or incest;
b. Minors;

c. Change of marital status during the ongoing pregnancy
(widowhood and divorce);
d. Women with physical disabilities with a major disability in
terms of the criteria laid down under the Rights of Persons with
Disabilities Act 2016;
e. Mentally ill women including mental retardation;
f. Foetal malformation that has a substantial risk of being
incompatible with life or where in the event of birth, the child may
suffer from physical or mental abnormalities and be seriously
handicapped; and
g. Women with pregnancy in humanitarian settings or disaster
or emergency situations as may be declared by the Government.

In X v. Principal Secretary, Department of Health and Family Welfare,
GNCTD, this Court held that the benefits of Rule 3B(c) extend equally
to both single and married women and that the benefits of Rule 3B
extend to all women who undergo a change in their material
circumstances.

15. Significantly, if in the opinion of an RMP, the termination of a
pregnancy is immediately necessary to save the life of a pregnant
woman, the provisions of Section 3 which relate to the length of the
pregnancy and the opinion of two RMPs shall not apply. Section 4
(which concerns the place at which a pregnancy may be terminated)
shall not apply to such cases as well. The design of the statute makes it
evident that saving the life of the pregnant woman is of paramount

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importance, notwithstanding the length of the pregnancy.

16. Further, the provisions of Section 3(2) relating to the length of
the pregnancy shall not apply to the termination of a pregnancy by an
RMP, where such termination is necessitated by the diagnosis of any of
the substantial foetal abnormalities diagnosed by a Medical Board. The
Medical Board has the power to allow or deny the termination of a
pregnancy the length of which is beyond twenty-four weeks. It may do so
only after ensuring that the procedure would be safe for the woman at
that gestation age and after considering whether the foetal
malformation leads to a substantial risk of the foetus being incompatible
with life, or where the child (if it is born) may suffer from such physical
or mental abnormalities as to be seriously handicapped. Therefore, the
outer temporal limit within which a pregnancy may be terminated is
lifted in some cases.”

9. The learned advocate appearing for the applicant-victim, relying upon
the decision of the Hon’ble Supreme Court in the case of XYZ vs. The State of
Gujarat & Ors (SLP (Cri) Dy. No.33790 of 2023, decided on 21.08.2023), has
submitted that the Supreme Court, in paragraphs-10, 12 & 14, held as under :

“10. We find that in the absence of even noticing the aforesaid portion
of the report, the High Court was not right in simply holding that “the
age of the foetus is almost 27 weeks as on 17.08.2023 and considering
the statements made by the learned advocate for the petitioner-victim
and the averments made in the application the petition for medical
termination of pregnancy stands rejected”, which, in our view is ex
facie contradictory. Being aggrieved by the said order the appellant has
knocked the doors of this Court seeking expeditious relief.

12. Pursuant to the order of this Court dated 19.08.2023 as extracted
hereinabove, the report of the Medical Superintendent, Dr.Kiran
C.Patel Medical College & Research Institute, Bharuch and Chief
District Medical officer-cum-Civil surgeon General Hospital, Bharuch,
Gujarat has been placed on record, which states that the petitioner’s
pregnancy is of 27 weeks 2 days +/- 2 weeks duration and the live
intrauterine foetus weights around 1088 grams as per the ultra
sonography done on 19.08.2023. Paragraphs 3 to 6 of the report reads
as under :-

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“3. There is no indication for termination of pregnancy as per
Maternal Physical Health but as per history given by survivor
this pregnancy is due to sexual assault with her, continuation of
this pregnancy can affect her mental health and in addition
survivor want to terminate pregnancy; Medical Termination of
Pregnancy (MTP) at this stage of pregnancy can be done in this
hospital if Honourable Court Permits.

4. In that case the Medical Termination of Pregnancy would
be done first by induction of Labour and if indicated then by
Hysterotomy procedure after taking consent of survivor &
explaining due risks to maternal health and fetal outcome.

5. At present the survivor is clinically fit for above
mentioned procedure.

6. The Medical Termination of Pregnancy would not
adversely affect child bearing capacity and General Health of the
survivor in future.”

14. In Suchita Srivastava vs. State (UT of Chandigarh) (2009) 9 SCC 1,
this Court expressed that the right of a woman to have reproductive
choice is an insegregable part of her personal liberty, as envisaged
under Article 21 of the Constitution. She has a sacrosanct right to her
bodily integrity.

10. In the case of Minor R through Mother H vs. State of NCT of Delhi
and Another (W.P. (Cri) No.221 of 2023, decided on 25.01.2023), the Delhi
High Court held as under :

“12. In the case of sexual assault, denying a women right to say no to
medical termination of pregnancy and fasten her with responsibility of
motherhood would amount to denying her human right to live with
dignity as she has a right in relation to her body which includes saying
Yes or No to being a mother. Section 3(2) of the MTP Act reiterates that
right of a woman. To force the victim to give birth to child of a man who
sexually assaulted would result in unexplainable miseries.

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One will shudder to think what a victim who is carrying such fetus in
her womb must be going through each day, being reminded constantly
of the sexual assault that she has undergone. Cases where sexual
assault results into pregnancy of the victim are even more traumatic as
the shadow of such tragic moment lingers on each day with the victim. It
is this mental agony which has been taken into account by the MTP Act
which lays emphasis on not only grave physical injury but also mental
health of a pregnant woman. It therefore provides under Section 3(2)(i)
that if the continuance of pregnancy would involve grave injury to the
mental health of a pregnant woman, she can legitimately seek to
terminate the same. In furtherance of the same intent, Section 3(2)
Explanation 2 of the MTP Act provides that -
“Explanation 2.- Where any pregnancy occurs as a result of
failure of any device or method used by any married woman or
her husband for the purpose of limiting the number of children,
the anguish caused by such unwanted pregnancy may be
presumed to constitute a grave injury to the mental health of the
pregnant woman.”

The present case stands covered under this explanation.

14. This Court takes note of the fact that Article 21 of the
Constitution of India dealing with right to life invariably includes a life
lived with dignity. The child herein is a victim of rape. Termination of
pregnancy in cases, like present one, cannot be reduced merely to be
defined as right of a woman sexually assaulted, but also to be
recognized as a human right, as it affects dignified existence of a victim
if the same is not permitted. It is not the privacy of the rape victim which
is invaded by sexual assault, but her body is wounded and her soul is
scared. It would not be appropriate to expect the minor victim who is a
rape victim to take the burden of giving birth and raising a child,
especially in a situation where she herself is passing through the age of
adolescent. Doing so, will amount to asking a child to give birth and
raise another child. Given the social, financial, and other factors that
are immediately associated with the pregnancy, an unwanted pregnancy
would surely have an impact on victim's mental health.”

11. At this stage, it would be profitable to refer to the decision of the
Hon’ble Supreme Court, wherein ‘the best interest’ theory for the victim
is settled. Moreover, considering the medical opinion given by the

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Medical Board as well as considering the trauma, mental agony and
possible social ostracism which the applicant-victim has to undergo, this
Court is inclined to allow the prayer for medical termination of the
pregnancy.

12. Since the pregnancy of the applicant-victim exceeds 24 Weeks as
of now, the Court directs three senior most Gynaecologist of the Guru
Gobind Govt. Hospital, Jamnagar to examine the applicant-victim and
also by a Psychologist attached to the Guru Gobind Govt. Hospital,
Jamnagar. The said team of doctors shall examine the applicant-victim,
and after having interaction with her, undertake the procedure of surgery
on urgent basis along with other required expert doctors like Physician,
Anesthetic etc., if otherwise, there is unanimity amongst the doctors to
the effect that such termination would be carried out safely.

13. Considering the fact that each day’s delay will add to the victim’s
agony, the following directions are issued :

(i) The victim is permitted to get the pregnancy terminated at
the Guru Gobind Govt. Hospital, Jamnagar. The termination of
pregnancy be carried out with all the necessary medical facilities
available at the disposal of the Hospital and on ensuring proper
care in pre-termination and post termination periods.
(ii) On production of this order, the Superintendent of the Guru
Gobind Govt. Hospital and Hospital, shall take immediate
measures for constituting a medical team for conducting the
procedure.

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(iii) the victim shall file an appropriate undertaking, authorizing
to conduct the surgery at her risk.

(iv) If the baby is alive at birth, the hospital shall ensure that the
baby is offered the best medical treatment available, so that it
develops into a healthy child.

(v) If the victim is not willing to assume the responsibility of the
baby, the State and its agencies shall assume full responsibility and
offer medical support and facilities to the child, keeping in mind
the best interests of the child and the statutory provisions in the
Juvenile Justice (Care and Protection of Children) Act, 2005.

(vi) The doctors shall take the necessary tissue samples from the
DNA identification by following the scientific practice for DNA
identification and such samples shall be handed over to the
Investigating Officer concerned.

14. The learned APP shall communicate about this order to the Guru
Gobind Govt. Hospital, Jamnagar, forthwith. A copy of this order shall
also be sent by the Registry to the Chief District Medical Officer-cum-
Civil Surgeon, Civil Hospital, Jamnagar.

15. With above directions, the present petition stands disposed of.
Direct service is permitted.

(M. R. MENGDEY,J)
SAKSHI MAURYA

Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: SAKSHI MAURYA(HC02367), ENGLISH STENO GRADE-II\, at High Court of Gujarat on 04/05/2026 16:27:20
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