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Gujarat High Court
Xxx Thro. Her Natural Guardian Mother ... vs State Of Gujarat on 23 February, 2026
NEUTRAL CITATION
R/SCR.A/2538/2026 ORDER DATED: 23/02/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 2538 of 2026
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XXX THRO. HER NATURAL GUARDIAN MOTHER HALIMABIBI
PIRMOHAMMAD BATTIWALA
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR ADITYA T PANCHOLI(13067) for the Applicant(s) No. 1
MR. H.K. PATEL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 23/02/2026
ORAL ORDER
1. The present application has been preferred by the
applicant-victim under Article 226 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.11210005260109 of 2026 dated 31.01.2026
registered with the Athwalines Police Station, Surat for the
offences punishable under Sections 63, 64(2)(I), 64(2)(K) of the
Bhartiya Nyaya Sanhita, 2023, for a direction to the respondent
authority to terminate the pregnancy of the applicant-victim who
is aged about 32 years, 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. Learned APP received a report from the Obstetrics & Gynec
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Department, SMIMER, Surat dated 04.02.2026. On perusing the
report, it appears that after examining the applicant-victim, the
doctors from different branches/ departments found that
applicant-victim is having 25 weeks and 2 days of live pregnancy
at present and as per the psychiatrist opinion, her provisional
diagnosis is schizophrenia and her current IDEAS scale score is
13 suggestive of moderate disability (approx. 70%). At present
she may not be able to take care of her baby and herself. Risk of
complication of termination of pregnancy at 25 weeks 2 days
includes retained product of conception, bleeding, infection,
uterine rupture, failure of termination and may need for surgical
intervention (hysterotomy) and psychological complication.
3. Heard learned advocates for the respective parties and
considered the opinion/report submitted by the Obstetrics &
Gynec Department, SMIMER, Surat.
4. 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.11210005260109 of 2026 dated
31.01.2026 registered with the Athwalines Police Station, Surat
for the offences punishable under Sections 63, 64(2)(I), 64(2)(K)
of the Bhartiya Nyaya Sanhita, 2023.
5. A panel of doctors have opined that the applicant-victim is
already carrying about 25 weeks and 2 days of pregnancy with a
specific report/opinion of the empaneled doctors that medical
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termination of pregnancy can be performed as per the guidelines
of the MTP Amendment Act, 2021.
6. 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.
7. 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
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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 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.
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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 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."
8. 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
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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 :-
"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.
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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.
9. 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.
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
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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."
10. At this stage, it would be profitable to refer to the decision
of the Hon'ble Supreme Court, wherein 'the best interest' theory
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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.
11. Since the pregnancy of the applicant-victim exceeds 25
weeks as of now, the Court directs three senior most
Gynecologists of the Civil Hospital, Surat, to examine the
applicant-victim and also by a Psychologist attached to the Civil
Hospital, Surat. 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.
12. 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, Surat. 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
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the Civil Hospital, Surat, shall take immediate measures
for constituting a medical team for conducting the
procedure.
(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.
13. The learned APP shall communicate about this order to the
Civil Hospital, Surat, forthwith. A copy of this order shall also be
sent by the Registry to the Chief District Medical Officer-cum-
Civil Surgeon, General Hospital, Surat.
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14. With above directions, the present petition stands disposed
of. Direct service today is permitted.
(M. R. MENGDEY,J)
RAVI OZA
