Gujarat High Court
Xxxx Thro Gulshanbanu Kallukhan Pathan vs State Of Gujarat on 8 August, 2025
NEUTRAL CITATION
R/SCR.A/11218/2025 ORDER DATED: 08/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 11218 of 2025
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XXXX THRO GULSHANBANU KALLUKHAN PATHAN
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR NADEEM B MANSURI(11332) for the Applicant(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 2
MS SHRUTI PATHAK, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 08/08/2025
ORAL ORDER
[1.0] The mother of the victim has approached this Court seeking following relief:-
"Your Lordships may be pleased to issue a writ in nature of mandamus and to direct the respondents to terminate the pregnancy of the victim (petitioner) herein and to direct the respondents No.1 to collect DNA from the foetus on termination of pregnancy."
[2.0] Since victim of sexual abuse is a minor, her identity has not been disclosed in this order and she has been referred to as the 'minor' or the 'victim' in the entire order. Registry is directed to anonymize the name of the minor / victim in the judgment and all orders that may be passed as well as in the records which are publicly available.
[3.0] The facts taken out from the petition, are as under:-
[3.1] That prior to three months of the FIR, one unknown person came to the house of the petitioner and has committed the rape. That, on 31.07.2025, mother of the victim filed the FIR being CR No.11196016250427 of 2025 came to be lodged before Page 1 of 8 Uploaded by SUCHITKUMAR PATEL(HC01083) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:49:13 IST 2025 NEUTRAL CITATION R/SCR.A/11218/2025 ORDER DATED: 08/08/2025 undefined Makarpura Police Station, Vadodara, for the offence punishable under Sections 64(1) and 65(1) of BNS and Sections 4, 6 and 12 of the Protection of Children from Sexual Offences Act, 2012. That, the petitioner herein has stated in the FIR that the complainant i.e. the mother of the victim has stated that the victim is aged 14 years as on the date of FIR having date of birth 01.07.2011. That, in the FIR, it has further mentioned that prior to three months of the FIR, when the victim was present at her home, at that time, one unknown person came there and committed raper. Therefore, the FIR came to be filed for the aforesaid offences.
[4.0] On 07.08.2025, this court has passed following order:-
NOTICE returnable on 08.08.2025. Learned APP waives service of notice on behalf of the respondent - State.
Meanwhile, let the victim minor be examined by the empaneled Doctors at SSG Hospital, Vadodara, consisting of Medical Superintendent, Senior Female Gynecologist and Psychologist. The victim should be admitted immediately and medical examination shall be carried out to let this Court know as to whether termination of pregnancy is medically feasible considering the fact that she is allegedly victim of rape and her guardian inclines to terminate her pregnancy. Doctors concerned shall follow settled guidelines to know her mental and psychological preparedness. The investigating officer is directed to make all necessary arrangement and facilitate the medical examination of the victim and submit a report before the Court tomorrow.
Direct service TODAY is permitted."
[5.0] Learned advocate Mr. Mansuri for the petitioner, after reiterating the fact of the case would submit that the minor is the victim of sexual abuse, she is the victim of alleged offence of rape registered with Makarpura Police Station, Vadodara. It is further submitted that the minor has developed pregnancy of 16 weeks and 3 days on the date of the application. It is painfully Page 2 of 8 Uploaded by SUCHITKUMAR PATEL(HC01083) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:49:13 IST 2025 NEUTRAL CITATION R/SCR.A/11218/2025 ORDER DATED: 08/08/2025 undefined submitted that she was sexually abused by the accused. It is further submitted that because of the sexual abuse, the minor has become pregnant and continuance of pregnancy would defame her in the society. It is also submitted that the minor would not be in a position to maintain the child as her mental and physical conditions are too feeble and weak and she is not fit either physically or mentally due to the incident in question. She is in trauma being result of the incident. It is also stated that considering the immature age of the minor, it is neither possible nor permissible to nurture and maintain the child and also considering that such aspect will tarnish the image and reputation in the society, it is urged to permit to terminate her pregnancy in accordance with law.
[6.0] The mother of the victim present in the Court stated that it would be in the best interest of the victim to undergo termination of the pregnancy.
[7.0] Section 3 of the Medical Termination of Pregnancy Act, 1971 (in short "the Act") reads as under:-
"SECTION 3: When pregnancies may be terminated by registered medical practitioners (1) Notwithstanding anything contained in the Indian Penal Code, a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.
(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner-
(a) where the length of the pregnancy does not exceed twelve weeks, if such medical practitioner is, or Page 3 of 8 Uploaded by SUCHITKUMAR PATEL(HC01083) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:49:13 IST 2025 NEUTRAL CITATION R/SCR.A/11218/2025 ORDER DATED: 08/08/2025 undefined
(b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are, of opinion, formed in good faith, that-
(i) 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; or
(ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.
Explanation 1. Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.
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.
(3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in subsection (2), account may be taken of the pregnant woman's actual or reasonably foreseeable environment.
(4)(a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a ["mentally ill person"] , shall be terminated except with the consent in writing of her guardian.
(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman."
[8.0] Before proceeding further to decision on issue, let refer opinion of the medical experts of Medical College and SSG Hospital, Vadodara, which reads as under:-
"1. .......is having 17 weeks 3 days viable pregnancy on clinical examination. On ultrasound examination period of gestation is 16 weeks 3 days with no detectable congenital anomaly (done by Dr. Bhaumik Patel Asst. Prof. Radiology on 31.07.2025).
2. On clinical examination, no significant systemic abnormally detected. Moreover, at present she does not know signs of any associated pregnancy Page 4 of 8 Uploaded by SUCHITKUMAR PATEL(HC01083) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:49:13 IST 2025 NEUTRAL CITATION R/SCR.A/11218/2025 ORDER DATED: 08/08/2025 undefined complications.
5. At this gestation age, termination of pregnancy can be done. She carries the same risk as per the weeks of gestation and as per her age.
6. As per the recommendation of MTP Amendment Bill, 2021, pregnancy upto 24 weeks can be terminated in vulnerable women."
[9.0] Explanation to the statutory provision u/s 3(2) of the Act spells that where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.
[10.0] In the case of X vs. Union of India reported in 2023(0) AIJEL-SC 72615, it has been observed in paragraph 14 as under:
"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.11 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 Page 5 of 8 Uploaded by SUCHITKUMAR PATEL(HC01083) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:49:13 IST 2025 NEUTRAL CITATION R/SCR.A/11218/2025 ORDER DATED: 08/08/2025 undefined emergency situations as may be declared by the Government."
In the case of X v. Principal Secretary, Department of Health and Family Welfare reported in 2022 LiveLaw (SC) 809, the Hon'ble Supreme 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.
[11.0] In the facts and circumstances of the case on hand, present case falls under the purview of Section 3(B) of the MTP Rules, 2021 and this court finds that the right of bodily integrity calls for a permission to allow her to terminate her pregnancy. The opinion of the Doctors clearly warrant the inference that the continuance of the pregnancy involves the risk of a possible grave injury to her mental health as required by Section 3(2)(i) of the Act. Section 5 of the Act permits termination of pregnancy beyond 20 weeks. The courts have expansively interpreting section 5 of the Act, to permit termination of pregnancy beyond 20 weeks, in circumstances where it is considered imperative to save life of the victim. Rule 3(b) of Medical Termination Pregnancy Rules, 2023 may also be pressed into service. One should not forget that the victim is minor. The Medical Board has opined that the victim is mentally and physically fit to undergo termination of the pregnancy and it will be safe to perform the termination. In these circumstances, it would be poignant to continue with the pregnancy for the minor, which is involuntary in nature. The unwillingness of parents and minor to continue Page 6 of 8 Uploaded by SUCHITKUMAR PATEL(HC01083) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:49:13 IST 2025 NEUTRAL CITATION R/SCR.A/11218/2025 ORDER DATED: 08/08/2025 undefined the pregnancy is explicit and expected trauma both physical and mental shall be increased if such pregnancy is allowed to continue and may cause major risk to the body of the minor. In fact, it is her right to terminate the unwanted pregnancy. Therefore, it would be just and proper to permit termination of the pregnancy under the provisions of the Act.
[12.0] At this stage, the Court has considered the decision wherein 'the best interest' of the victim girl and considering her trauma, mental agony and possibility of social ostracism, the Court is of opinion that when the medical opinion given by the Panel of Doctors is taken into consideration, let termination of pregnancy be carried out at the earliest with medical facilities available to the victim girl and on ensuring proper care in pre- termination and post termination period.
[13.0] For the foregoing reasons, this petition is allowed in terms of permitting termination of the pregnancy of the minor to be carried out by the concerned Civil Hospital at the earliest with medical facilities available to the victim girl and on ensuring proper care in pre-termination and post-termination period since present victim is having 17 weeks and 3 days pregnancy as of now. The Doctors performing termination procedure shall take necessary tissue from the fetus for DNA identification in scientific manner and shall hand it over to the Investigating Officer concerned for onward transmission of the same to the concerned FSL for analysis. If post termination of pregnancy, the victim requires to take treatment, the concerned Civil Hospital is Page 7 of 8 Uploaded by SUCHITKUMAR PATEL(HC01083) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:49:13 IST 2025 NEUTRAL CITATION R/SCR.A/11218/2025 ORDER DATED: 08/08/2025 undefined directed to provide all necessary treatment and facility.
[14.0] With above observations and directions, present petition stands disposed of. Direct service TODAY is permitted.
[15.0] Copy of this order also be provided to learned APP for onward transmission to the concerned Civil Hospital and the concerned Investigating Officer for taking necessary action.
(HASMUKH D. SUTHAR,J) SUCHIT Page 8 of 8 Uploaded by SUCHITKUMAR PATEL(HC01083) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:49:13 IST 2025