Bombay High Court
Nikhil Datar And Anr. vs State Of Maharashtra Through The ... on 28 July, 2025
Author: Revati Mohite Dere
Bench: Revati Mohite Dere
2025:BHC-AS:31698-DB
501-aswp-4126 of 2025.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 4126 OF 2025
Dr. Nikhil Datar & Ors. .....Petitioners
Vs.
The State of Maharashtra and Ors. .....Respondents
Ms. Meenaz Kakalia, for the Petitioners.
Mrs. P. P. Shinde, Additional Public Prosecutor, for the Respondent-
State.
CORAM : REVATI MOHITE DERE &
DR. NEELA GOKHALE, JJ.
DATE : 28th JULY 2025.
P.C.:-
1. The Petitioners seek a direction that the Petitioner No.1 is
free to undertake medical termination of pregnancy without disclosing
the name and identity of the Petitioner No.2, who is a minor girl by
placing reliance on the decision of the Supreme Court in X. v. The
Principal Secretary, Health and Family Welfare Department,
Government of NCT, Delhi & Anr. reported in (2022) 7 SCR 686.
2. Heard the learned counsel for the parties.
3. We have perused the judgment of the Supreme Court as
aforesaid. Para 81 of the said judgment reads thus;
501-aswp-4126 of 2025.doc
"81. To ensure that the benefit of Rule 3B(b) is extended to
all women under 18 years of age who engage in consensual
sexual activity, it is necessary to harmoniously read both the
POCSO Act and the MTP Act. For the limited purposes of
providing medical termination of pregnancy in terms of the
MTP Act, we clarify that the RMP, only on request of the
minor and the guardian of the minor, need not disclose the
identity and other personal details of the minor in the
information provided under Section 19(1) of the POCSO
Act. The RMP who has provided information under Section
19(1) of the POCSO Act (in reference to a minor seeking
medical termination of a pregnancy under the MTP Act) is
also exempt from disclosing the minor's identity in any
criminal proceedings which may follow from the RMP's
report under Section 19(1) of the POCSO Act. Such an
interpretation would prevent any conflict between the
statutory obligation of the RMP to mandatorily report the
offence under the POCSO Act and the rights of privacy and
reproductive autonomy of the minor under Article 21 of the
Constitution. It could not possibly be the legislature's intent
to deprive minors of safe abortions."
4. The Supreme Court also recognized the medical practitioner's
fear of prosecution under POCSO, thereby hindering access to safe
and legal abortion. The Hon'ble Supreme Court noted in the very said
judgment, in para 20 as follows;
501-aswp-4126 of 2025.doc
"20. .......A fear of prosecution under this complex
labyrinth of laws, including linking of the MTP Act with the
IPC, acts as a major barrier to safe abortion access, by having
a chilling effect on the behaviour of RMPs. The chilling
effect -- historically associated with protection of freedom
of speech and expression under Article 1925 -- has an
impact on the decision- making of medical professionals
acting under the MTP Act and consequently impedes access
to safe and legal abortions and the actualization of women's
fundamental right to reproductive autonomy."
5. It appears that the Petitioner No.2 had consensual sexual
relations with a boy known to her. She became pregnant consequent
to the sexual relationship. Since the Petitioner No.2 is a minor, she
and her parents are desirous of terminating the pregnancy, which is
presently only of 13 weeks and hence, well within the restriction on
the length of pregnancy, termination of which is permissible under the
Medical Termination of Pregnancy Act (MTP), 1971 subject to the
conditions laid down therein. Considering the future of the minor, it is
natural that the Petitioner No.2 and her parents are unwilling to reveal
her identity.
6. Ms. Meenaz Kakalia, learned counsel for the Petitioners,
brought to our notice an order dated 7th May 2024 passed by a
501-aswp-4126 of 2025.doc
Division Bench of this Court (where one of us was a member) in
Criminal Writ Petition (St) No. 10276 of 2024, in which this Court
had permitted the Petitioner No.1-the Doctor, to undertake MTP of
the minor girl therein without disclosing her name and identity in
terms of the decision of the Supreme Court as aforesaid.
7. In view of the aforesaid, we permit the Petitioner No.1 to
undertake MTP of the Petitioner No.2- the minor girl without being
compelled to disclose her name and identity in terms of the Supreme
Court's decision as well as the order of this Court dated 7 th May 2024.
8. Needless to state, that since the Petitioner No.2 is a minor,
the forensic evidence of the fetus being collected and stored by the
Petitioner No.1 only if consented by the Petitioner No.2 and her
parents, to be transmitted to the Police Officer concerned in case any
criminal prosecution is launched hereafter.
9. We are quite surprised that despite the clear finding of the
Supreme Court as well as of this Court, repeatedly holding that in the
facts of such cases, the identity of the minor girl need not be insisted
upon to be revealed, the Doctors concerned are compelled to
501-aswp-4126 of 2025.doc
approach this Court for such permissions as the Police insist upon the
doctors to reveal the name and identity of the minor victims. This is
nothing but harassment of the doctors as well as the minor victims. We
thus, deem it appropriate that a copy of the Supreme Court's decision
as aforesaid as well as the orders passed by this Court be circulated to
all the Police Stations in Maharashtra for their information and for
necessary action.
10. A copy of this order be sent to the Director General of
Police, (DGP) Maharashtra State, to enable the DGP, Maharashtra
State, to do the needful.
11. The Petition is allowed and accordingly, disposed of.
12. All parties to act on an authenticated copy of this order.
(DR. NEELA GOKHALE, J.) (REVATI MOHITE DERE, J.)
Digitally
signed by
SHAMBHAVI
SHAMBHAVI NILESH
NILESH SHIVGAN
SHIVGAN Date:
2025.07.29
13:00:17
+0530
