High Court of Gujarat
XXX - MINOR THRO. NISHESHSINH RAMSNEHI PATELversusSTATE OF GUJARAT
- Disposal
- 58-RULE ISSUED & RULE ABSOLUTE/ALLOWED @FH
- Bench
- M R MENGDEY
Holding
The Court held that the pregnancy of the 16‑year‑old rape survivor may be terminated despite exceeding 20 weeks, and directed the Civil Hospital to carry out the procedure in accordance with the MTP Act, 2021 and relevant Supreme Court jurisprudence.
Summary
The Court entertained an application filed by a 16‑year‑old rape survivor seeking termination of her 22‑week pregnancy under Articles 226, 227 of the Constitution, CrPC Section 482 and the Medical Termination of Pregnancy Act, 1971 (as amended 2021). A medical board examined her and reported that termination was feasible with the usual second‑trimester risks. Relying on Supreme Court pronouncements in X v Union of India and other precedents, the Court held that the MTP Act permits termination for survivors of sexual assault even beyond 20 weeks, provided two registered medical practitioners concur. The Court also allowed the taking of fetal tissue for DNA testing and directed the Civil Hospital, Ahmedabad, to assemble a senior medical team to perform the termination urgently, while providing for post‑termination care and the State’s responsibility for the child if the victim declines custody. The petition was consequently disposed.
Issues considered
- Whether a pregnant minor who is a survivor of rape can be granted a medical termination of pregnancy beyond 20 weeks under the MTP Act, 2021.
- Whether the High Court may issue a direction for termination under Articles 226/227 of the Constitution and CrPC Section 482.
- Whether fetal tissue may be sampled for DNA identification in the investigation.
- Whether the State must assume responsibility for the child if the victim declines custody.
Legislation cited
- Code of Criminal Procedure, 1973s. 482
- Constitution of Indias. 21, s. 226, s. 227
Subjects
medical termination of pregnancyrape survivorminorMTP Actconstitutional rightsArticle 21DNA samplingjudicial directionCriminal Procedure Code
Judgment
R/SCR.A/5985/2026 ORDER DATED: 30/04/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 5985 of 2026
==========================================================
XXX - MINOR THRO. NISHESHSINH RAMSNEHI PATEL
Versus
STATE OF GUJARAT & ORS.
==========================================================
Appearance:
MR. ZALAK B SUTHAR(18186) for the Applicant(s) No. 1
MS BUSRUN M PATHAN(11393) for the Applicant(s) No. 1
MR. KANVA ANTANI, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 30/04/2026
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 482 of the
Code of Criminal Procedure, 1973 as well as under the provisions of the
Medical Termination of the Pregnancy Act, 1971, in connection with the FIR
being No.11191038260212 of 2026 dated 26.03.2026 registered with the Vatva
Police Station, Ahmedabad City for the offences punishable under Sections
137(2) of the BNS, 2023 for a direction to the respondent authority to terminate
the pregnancy of the applicant-victim who is aged about 16 years 03 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 27.04.2026, this Court passed the following order :-
“1. Learned advocate for the petitioner submitted that the petitioner
herein is aged 16 years and 3 months and is the victim of offence of
rape. As a consequence, the petitioner has attained the pregnancy and
presently she is pregnant by 22 weeks, and therefore, she is not in a
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R/SCR.A/5985/2026 ORDER DATED: 30/04/2026
position to continue the pregnancy any further and is desirous of getting
the pregnancy terminated medically.
2. In view of the above, Medical Officer of Civil Hospital,
Ahmedabad shall constitute a committee consisting of Head of the
Department of Gynecology as well as other experts, who will examine
the petitioner, on the aspect of termination of pregnancy, and shall also
indicate the risk in termination of pregnancy. The petitioner shall
appear before the committee to be constituted by the Civil Hospital,
Ahmedabad on 28.4.2026. The Committee shall submit its report as
regards the termination of pregnancy before this Court on 29.04.2026.
3. S.O. to 29.4.2026. Direct service is permitted TODAY.”
3. Pursuant to the order passed by this Court dated 27.04.2026, the learned
APP received a report from the Obstetrics and Gynecology Department, B.J.
Medical College, Ahmedabad dated 29.04.2026. On perusing the report, it
appears that after examining the applicant-victim, the doctors from different
branches/departments found the applicant-victim carrying a single live
intrauterine fetus with gestational age of 22 weeks 04 days. Further, they have
opined that termination of pregnancy in this victim can be done with usual risks
of Second trimester procedure. If needed surgical intervention, risk of
anesthetic complication can occur.
4. Heard learned advocates for the respective parties and considered the
opinion/report submitted by the Obstetrics and Gynecology Department, B.J.
Medical College, Ahmedabad.
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
No.11191038260212 of 2026 dated 26.03.2026 registered with the Vatva
Police Station, Ahmedabad City for the offences punishable under Sections
137(2) of the BNS, 2023.
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6. A panel of doctors have opined that the applicant-victim is already
carrying about 22 weeks of pregnancy with a specific report/opinion of the
empaneled doctors that medical termination of pregnancy can be 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.
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R/SCR.A/5985/2026 ORDER DATED: 30/04/2026
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
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
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R/SCR.A/5985/2026 ORDER DATED: 30/04/2026
(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
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
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R/SCR.A/5985/2026 ORDER DATED: 30/04/2026
sonography done on 19.08.2023. Paragraphs 3 to 6 of the report reads
as under :-
“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
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R/SCR.A/5985/2026 ORDER DATED: 30/04/2026
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.
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.”
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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 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 22 weeks as of
now, the Court directs three senior most Gynecologists of the Civil Hospital,
Ahmedabad, to examine the applicant-victim and also by a Psychologist
attached to the Civil Hospital, Ahmedabad. 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
Civil Hospital, Ahmedabad. 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 Civil
Hospital, Ahmedabad, shall take immediate measures for constituting a
medical team for conducting the procedure.
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R/SCR.A/5985/2026 ORDER DATED: 30/04/2026
(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 Civil
Hospital, Ahmedabad, forthwith. A copy of this order shall also be sent by the
Registry to the Chief District Medical Officer-cum-Civil Surgeon, General
Hospital, Ahmedabad.
15. With above directions, the present petition stands disposed of. Direct
service today is permitted.
(M. R. MENGDEY,J)
RAVI OZA
Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: RAVI OZA(HCW0111), ENGLISH STENOGRAPHER GRADE I, at High Court of Gujarat on 30/04/2026 14:59:35
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