Bombay High Court
Xyz D/O. Santosh Deulkar, Thr. Her ... vs State Of Maharashtra, Thr. The ... on 24 September, 2025
Author: Anil Laxman Pansare
Bench: Anil Laxman Pansare
2025:BHC-NAG:9670-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 5604 OF 2025
[XYZ d/o Santosh Deulkar vs. State of Maharashtra, through the
Principal Secretary, Public Health Services, Mantralya, Mumbai and anr.]
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Ms. S. H. Bhatia, Advocate (Appointed) for the petitioner
Mr. Hrishikesh Marathe, AGP for the State/respondents
CORAM: ANIL L. PANSARE AND
SIDDHESHWAR S. THOMBRE, JJ.
DATED : 24-09-2025.
Heard.
2. On 22-6-2025, following order was passed.
"1) Heard.
2) The petitioner who is the victim of rape has
approached this Court seeking direction against the
respondent No.2 to terminate unwanted pregnancy of 30
weeks, with further prayer to refer her to Medical Board
for determination of her physical, mental status and other
relevant factors.
3) Issue notice to the respondents. Learned
Government Pleader waives service of notice on behalf of
respondents.
4) The respondent No.2 Dean, Government Medical
College And Hospital, Akola shall constitute a Medical
Board in terms of SOP dated 03/06/2024 issued by the
Public Health Department, Government of Maharashtra, so
as to examine mental, physical condition of the petitioner,
as also the fetus and the risk involved in terminating and
carrying pregnancy.
5) The petitioner shall appear before respondent
No.2 at 11.00a.m. on tomorrow i.e. 23/09/2025.
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6) The Medical Board shall examine the petitioner
and submit its report to this Court, which should reach by
1.00p.m. on 24/09/2025.
7) List the petition on 24/09/2025 at 2.30p.m.
8) All concerned shall provide authenticated copy of
this order."
3. In response to the order, learned Assistant
Government Pleader (AGP) has tendered across bar the report
of the Medical Board. The report is taken on record.
Recommendations of the Board for termination of pregnancy
read as under :
"Key recommendations of the panel (if any) with
Justification
As victim is 18 years old (major) with 31 weeks of
pregnancy without any congenital anamoly to fetus. As
per MTP act decision of termination of pregnancy in such
cases is beyond the perview of medical board as per
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After examination of health condition of victim she is fit to
continue the pregnancy till term (9months). Although by
any means patient wants her pregnancy has to be
terminated, she may undergo procedures and methods of
termination of pregnancy with informed high risk consent
of victim and her relatives. There is a potential risk and
complications during and after procedures of termination
of pregnancy to mother and fetus and during procedures
and methods of termination of pregnancy circumstantial
possibilities of life threatening complications cannot be
ruled out."
4. Thus, the report indicates that termination of
pregnancy at such a belated stage (31 weeks of pregnancy) will
carry high risk, however, with the consent of the victim and her
relatives, the procedure could be undertaken. The report
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further indicates that there is a potential risk of complications
during and after procedures of termination of pregnancy to
mother and fetus and that the life threatening risk cannot be
ruled out.
5. The counsel for petitioner submits that the petitioner
is made aware of the high risk and the probable complications.
However, she has made up a mind to not continue the
pregnancy. Her parents have also consented to undergo the
procedure of termination of pregnancy.
6. We are informed that the petitioner has been already
admitted to respondent no. 2 - Government Medical College
and Hospital, Akola.
7. In view of the above, considering the background that
resulted into victim's pregnancy, we concede to the victim's
decision to terminate pregnancy considering the judgment of
Hon'ble Supreme Court in the case of XYZ vs. State of Gujarat
and others [2023 CC Online SC 1573] wherein in identical
situation, the Supreme Court observed thus :
"13. In Indian society, within the institution of
marriage, generally pregnancy is a reason for joy and
celebration and of great expectation, not only for the
couple but also for their families and friends. By contrast,
pregnancy outside marriage, in most cases, is injurious,
particularly, after a sexual assault/abuse and is a cause for
stress and trauma affecting both the physical and mental
health of the pregnant woman the victim. Sexual assault or
abuse of a woman is itself distressing and sexual abuse
resulting in pregnancy compounds the injury. This is
because such a pregnancy is not a voluntary or mindful
pregnancy.
17. More recently, in case of X v. The Principal
Secretary, Health and Family Welfare Department,
Government of NCT of Delhi, AIR 2022 SC 4917; this
Court, in another three-judge Bench lead by Dr. D. Y.
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Chandrachud, J. (as the learned Chief Justice then was)
observed that a woman can become pregnant by choice
irrespective of her marital status. In case the pregnancy is
wanted, it is equally shared by both the partners. However,
in case of an unwanted or incidental pregnancy, the
burden invariably falls on the pregnant woman affecting
her mental and physical health. Article 21 of the
Constitution recognises and protects the right of a woman
to undergo termination of pregnancy if her mental or
physical health is at stake. Importantly, it is the woman
alone who has the right over her body and is the ultimate
decision-maker on the question of whether she wants to
undergo an abortion.
19. The whole object of preferring a Writ Petition
under Article 226 of the Constitution of India is to engage
with the extraordinary discretionary jurisdiction of the
High Court in exercise of its constitutional power. Such a
power is vested with the constitutional courts and
discretion has to be exercised judiciously and having
regard to the facts of the case and by taking into
consideration the relevant facts while leaving out
irrelevant considerations and not vice versa."
8. Thus, the Supreme Court held that where the
pregnancy is by choice, it will be equally shared by both the
partners. However, if the pregnancy is unwanted or incidental,
the burden invariably falls on the pregnant woman affecting her
mental and physical health. The Supreme Court further
observed that the woman alone has a right over her body and is
the ultimate decision maker on the question of whether she
wants to undergo an abortion.
9. The petitioner - victim is 18 years old. She became
pregnant of the unfortunate incident. The counsel for the
petitioner submits that Section 3(2)(b)(i) read with explanation
2 of the Medical Termination of Pregnancy Act, 1971 enables
the termination of pregnancy caused by rape with the only rider
that length of pregnancy does not exceed 24 weeks. Learned
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AGP, however, opposed on the ground that the procedure is life
threatening.
10. The question, therefore, is whether in peculiar facts
and circumstances of the case, where the petitioner is not
willing to continue with the pregnancy despite knowing the fact
that termination of pregnancy at such a belated stage is at a
high risk, the relief could be granted.
11. We would respect petitioner's feelings and the
decision, firstly, she being major and secondly, the pregnancy is
unwanted and forceful. As such, the report of Medical Board
indicates that during procedures and methods of termination of
pregnancy, circumstantial possibilities of life threatening
complications cannot be ruled out, the Board has not found the
situation to be such where there is direct threat to the life of the
petitioner or the fetus. That being so, we allow the petition in
following terms.
12. The Dean, Government Medical College and Hospital,
Akola shall permit the petitioner to undergo medical
termination of pregnancy at the earlier possible time by taking
recourse to the safety protocol, subject to the written consent of
the victim and her parents to undergo the procedure at such a
belated stage.
13. The Dean, Government Medical College and Hospital,
Akola shall perform DNA of the fetus and forward the report to
the Investigating Officer of Police Station, Tamgaon, Tahsil
Sangrampur, District Buldana.
14. The petition is disposed of in above terms.
15. The fees of appointed counsel shall be quantified and
paid as per the rules.
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16. All concerned to act on steno/uploaded copy of the
order.
(S. S. THOMBRE, J.) (A. L. PANSARE, J.)
wasnik
Signed by: Mr. A. Y. Wasnik
Designation: PS To Honourable Judge
Date: 24/09/2025 18:11:46
