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Gujarat High Court
Abc Minor Thro Narvatsinh Dulsinh Baria vs State Of Gujarat on 20 May, 2026
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R/SCR.A/7105/2026 ORDER DATED: 20/05/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 7105 of 2026
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ABC MINOR THRO NARVATSINH DULSINH BARIA
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR NIMESH M PATEL(6780) for the Applicant(s) No. 1
MR ROHAN RAVAL, APP for the Respondent(s) No. 1
NOTICE NOT RECD BACK for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE VIMAL K. VYAS
Date : 20/05/2026
ORAL ORDER
1. The present application has been preferred by the
applicant-victim girl (through her father) under Articles 226
and 227 of the Constitution of India read with Section 528
of the Bharatiya Nagarik Suraksha Sanhita, 2023, as well
as under the provisions of the Medical Termination of the
Pregnancy Act, 1971, in connection with the FIR being
C.R.No.11821050251277 of 2025 dated 29.09.2025
registered with the Sagtala Police Station, District Dahod,
against the accused persons, for the offences punishable
under Sections 376(2)(j), 376(2)(n) of the Indian Penal Code
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and Sections 87, 137(2), 65(1) and 64(2)(M) of the Bharatiya
Nyaya Sanhita, 2023, and under Sections 4 and 6 of the
Protection of Children from Sexual Offences Act.
2. By way of filing the present application, the applicant-
victim girl, who is aged about 14 years and 25 days as on
date, through her father, has prayed for a direction to the
respondent no.3 - authority to terminate her pregnancy, at
the earliest, which is in her best interest considering her
physical health, and the incident of rape, which caused
grave injury to her mental health.
3. On 15.05.2026, a Coordinate Bench of this Court has
passed the following order :-
"1. Heard Mr.Mahavir Jebaliya, learned advocate for
Mr.Nimesh M. Patel, learned advocate for the applicant
as also Ms. Vruna Shah, learned APP for the respondent
- State.
2. Mr.Jebaliya, learned advocate would submit that
the petitioner happens to be the father of victim girl,
aged about 13 years and 8 months, and due to
commission of crime in question, she got pregnant and
is carrying the fetus around 20 weeks as on date.
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3. Ms.Shah, learned APP, under the instructions of
the investigating Officer, who is present before the
Court, confirms the aforesaid fact.
4. Having heard the learned advocates for the
respective parties and after going through the
averments made in the petition, it deserves
consideration. Hence, at this stage, I pass the following
order :-
4.1 NOTICE returnable on 19th May, 2026. Learned
APP waives service of notice for and on behalf of the
respondent Nos.1 and 2.
4.2 Respondent No.3 is hereby directed to constitute
the team of the doctor, who will examine the victim girl
i.e. daughter of the petitioner herein and submit the
report through the concerned Police Station before the
next date of hearing."
4. Pursuant to the order passed by this Court dated
15.05.2026, the learned APP has submitted a report dated
18.05.2026 of the Medical Superintendent, Zydus Medical
College and Hospital, Dahod. On perusing the said report, it
appears that after examining the applicant-victim girl, the
panel of doctors from different branches/departments, viz.
gynecology, medicines, radiology, anesthesia, psychiatrist,
etc., found the applicant-victim girl in good health, carrying
a fetus with gestational age of 19-weeks & 05-days.
Therefore, the panel of doctors has opined that the victim-
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girl is fit for the 2nd Trimester Medical Termination of
Pregnancy.
5. Considering the medical opinion of the panel doctors,
today this Court virtually interacted with the victim-girl in
presence of the learned advocate Mr.Nimesh Patel appearing
for the applicant-victim girl and the learned APP Mr.Rohan
Raval appearing for the respondent - State. During the
interaction, the victim-girl explicitly stated that she does not
wish to carry the pregnancy and voluntarily expressed her
desire to terminate it, without there being any pressure or
coercion from any person, including her parents.
6. Having heard learned advocates appearing for the
respective parties and having gone through the averments
made in the application, it appears from the history given by
the victim girl before the Medical Officer that she was taken
by the accused persons named in the FIR being
C.R.No.11821050251277 of 2025 registered with the
Sagtala Police Station, District Dahod, and one of the
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accused persons had developed physical relationship with
her without her consent. Admittedly, the victim girl was
minor at the time of the alleged incident and had not even
completed 14 years of age. Considering the aforesaid, prima
facie, it appears that she is a rape victim. It further appears
that the panel of doctors has opined that the applicant-
victim girl is carrying a fetus with gestational age of 19-
weeks & 05-days, and she is fit for the 2 nd Trimester Medical
Termination of Pregnancy.
7. Learned APP Mr.Raval has urged before this Court that
in a given set of circumstances, this Court may 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, scientifically, 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 Supreme Court has
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summarised the law regarding the medical termination of
pregnancies. In paragraph-13, the 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.
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.
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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.
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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."
9. The learned advocate appearing for the applicant-
victim girl, relying upon the decision of the 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 &
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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.
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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 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
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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
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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."
11. At this stage, it would be profitable to refer to the
decision of the Supreme Court, wherein 'the best interest'
theory for the victim is settled. Furthermore, considering the
medical opinion given by the panel of doctors, 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 of the applicant-victim girl.
12. Since the pregnancy of the applicant-victim girl
exceeds 19 weeks as of now, the Court directs three senior
most Gynecologists, as well as, a Psychologist of the Zydus
Medical College and Hospital, Dahod, to examine the
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applicant-victim girl, and after interacting with her,
undertake the procedure of surgery, on urgent basis, in
presence of the expert Physician and Anesthetist, 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 Zydus Medical College and Hospital,
Dahod. The termination of pregnancy shall be carried
out with all the necessary medical facilities available at
the disposal of the Hospital, after ensuring proper care
in pre-termination and post termination periods.
(ii) On production of this order, the Superintendent,
Zydus Medical College and Hospital, Dahod, shall take
immediate measures to constitute a medical team for
conducting the aforesaid procedure.
(iii) The victim shall file an appropriate undertaking,
authorizing to conduct the surgery at her risk.
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(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
supports 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 for the DNA identification by following the
scientific practice for DNA identification, and such
samples shall be handed over to the Investigating
Officer concerned.
16. The learned APP shall communicate about this order to
the Superintendent, Zydus Medical College and Hospital,
Dahod, forthwith. A copy of this order shall also be sent by
the Registry to the Chief District Medical Officer-cum-Civil
Surgeon, General Hospital, Dahod.
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17. With the above directions, the present petition stands
disposed of. Direct service today is permitted.
(VIMAL K. VYAS, J.)
/MOINUDDIN
