Madhya Pradesh High Court
A Minor vs The State Of Madhya Pradesh on 20 August, 2025
Author: Vishal Mishra
Bench: Vishal Mishra
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 20 th OF AUGUST, 2025
WRIT PETITION No. 33004 of 2025
A MINOR
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Smt. Divyakeerti Bohrey - Advocate for the petitioner.
Shri A.S. Baghel - Government Advocate for the respondents/State.
ORDER
This petition has been filed seeking following reliefs:-
i. Issue a writ in the nature of mandamus directing the
respondents to abort the fetus scientifically as soon as
possible and to conduct DNA test of the fetus for the purpose
of evidence in the trial.
ii. Issue any other writ, order or direction as this Hon'ble
Court deems just and necessary in the facts and
circumstances of the case.
2. In compliance of order dated 19/08/2025, learned State counsel has
produced opinion of the Medical Board with respect to termination of pregnancy
of the petitioner.
3. A Committee comprising of 3 Gynaecologists, 1 Clinical Psychiatrist and
1 Radiologist was constituted, who gave its report dated 19/08/2028 opining as
under:-
"1. Pregnancy may be terminated with the permission of
honourable high court.
2. The process of termination is like mini labor with all similar
high risk as associated with any process of labor and consent of the
same should be given by the guardian/ parent.
3. As per USG weight of the fetus is 788 gms with cephalic
presentation at the time of scan and fetus may be alive at the time of
birth and may require appropriate care.
The experts however will undertake due care of the victim and
abide by the order of the honourable high court.
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4. From the perusal of the report, it is seen that the victim is aged 14 years 4
months and she is having pregnancy of 25 weeks 3 days as on 19.08.2025. The
opinion was that "the survivor's pregnancy can be terminated with explained risk
and informed consent of the survivor's guardian".
5. The said report along with the other relevant documents are placed on
record by learned Government Advocate. It is pointed out that FIR was got
registered for offence under Section 64(1), 351(2) of BNS, 2023 and under
Sections 3, 4 of POCSO Act, 2012 at Crime No.352/2025. The victim was brought
to the hospital by the parents and they are ready to keep the victim in case the
pregnancy is terminated apprehending the social threats.
6. It is argued by the counsel for the State that Section 3 of the Medical
Termination of Pregnancy Act, 1971 does not permit the pregnancy exceeding 24
weeks. It is further argued that there is judgment on this issue which was referred
to the Division Bench of this Court in the case of In Reference (Suo Motu) v. The
State of Madhya Pradesh and others: W.P. No.5184/2025 which was decided on
20.02.2025 wherein after due consideration, the SOP has been formed which is
required to be followed upto 24 weeks and exceeding 24 weeks.
7. In the present case, the age of the fetus is exceeding 24 weeks. Therefore,
the SOP is required to be followed in the present case which is as under:
"SOPs to be followed in case where the age of foetus/pregnancy
of survivor of sexual assault or rape or incest is exceeding 24
Weeks:-
Whenever a case of rape is registered at any police station, the
following procedure shall be adopted:-
(i) The SHO of the said police station, on the basis of the MLC
of the victim indicating that she is pregnant and the pregnancy is
more than 24 weeks, shall forthwith forward the victim to the
concerned District Court, preferably Special Judge/POCSO; (ii) The
learned Judge of the District Court preferably Special
Judge/POCSO), regardless of any application for termination of
pregnancy, though not maintainable, filed before it or not, shall refer
the victim to the concerned medical officer/Board to expeditiously
submit its report, if the pregnancy of the victim can be terminated;
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(iii) The District Court, preferably Special Judge/POCSO, after
obtaining the said medical report, under intimation to the victim and
her parents, directly refer such case and report to the nearest Registry
of the High Court; (iv) The Registry of High Court, in turn, shall
register such reference as a Writ Petition under Article 226 of
the Constitution, Suo Motu, and list the matter immediately
before the concerned Bench having the roster, so that
appropriate orders regarding termination of pregnancy can be passed
by the High Court without any undue delay;
(v) If directed by the High Court that termination of pregnancy
is required then, the procedure of termination of pregnancy will be
carried out in the presence of the expert team of doctors. The expert
doctors will explain to the family members as well as the petitioner
the risk of getting the termination of her pregnancy and also other
factors;
(vi) Every care and caution will be taken by the doctors
while terminating the pregnancy. All medical attention and
other medical facilities including that of a presence of a
Pediatrician as well as a Radiologist and other required doctors will
be made available to the victim;
(vii) The post operative care, upto the extent required, will
be extended to the victim;
(viii) The doctors will ensure that a sample from the fetus
is protected for DNA examination and will be handed over to
the prosecution for using in the criminal case."
8. Learned Government Advocate appearing for the State has argued that the
Division Bench of this Court while preparing the SOP has missed to consider the
vital aspect of the matter i.e. the termination of pregnancy after 24 weeks is not
permissible. It has further failed to consider the aspect that fetus is having a life
after 6 or 7 weeks and directing for termination of pregnancy at a delayed stage
when the fetus is already alive, will create great complications and will be having a
high risk to the survivor/victim as well as the fetus alive. Therefore, he has raised
objections with respect to terminating the pregnancy at such an advanced stage
wherein the age of the fetus is pointed out to be 25 weeks and 3 days as on
19.08.2025.
9. Heard the learned counsels for the parties.
10. Section 3 of the MTP Act, 1971 deals with termination of pregnancy and
the relevant is as under:
"3. When pregnancies may be terminated by registered medical
practitioners-
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(1) Notwithstanding anything contained in the Indian Penal Code
(45 of 1860), 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 twenty
weeks, if such medical practitioner is, or
(b) where the length of the pregnancy exceeds twenty weeks but
does not exceed twenty-four weeks in case of such category of
woman as may be prescribed by rules made under this Act, if not
less than two registered medical practitioners are, of the 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 any serious physical or mental
abnormality.
Explanation 1.--For the purposes of clause (a), where any
pregnancy occurs as a result of failure of any device or method used
by any woman or her partner for the purpose of limiting the number
of children or preventing pregnancy, the anguish caused by such
pregnancy may be presumed to constitute a grave injury to the
mental health of the pregnant woman. Explanation 2.--For the
purposes of clauses (a) and (b), where any pregnancy is alleged by
the pregnant woman to have been caused by rape, the anguish
caused by the pregnancy shall be presumed to constitute a grave
injury to the mental health of the pregnant woman.
(2A) The norms for the registered medical practitioner whose
opinion is required for termination of pregnancy at different
gestational age shall be such as may be prescribed by rules made
under this Act.
(2B) The provisions of sub-section (2) relating to the length of the
pregnancy shall not apply to the termination of pregnancy by the
medical practitioner where such termination is necessitated by the
diagnosis of any of the substantial foetal abnormalities diagnosed by
a Medical Board.
(2C) Every State Government or Union territory, as the case may
be, shall, by notification in the Official Gazette, constitute a Board to
be called a Medical Board for the purposes of this Act to exercise
such powers and functions as may be prescribed by rules made under
this Act.
(2D) The Medical Board shall consist of the following, namely:--
(a) a Gynaecologist;
(b) a Pediatrician;
(c) a Radiologist or Sonologist; and
(d) such other number of members as may be notified in the
Official Gazette by the State Government or Union territory, as the
case may be.
(3) In determining whether the continuance of a pregnancy would
involve such risk of injury to the health as is mentioned in sub-
section (2), account may be taken of the pregnant woman's actual or
reasonably foreseeable environment.
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(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."
11. The Hon'ble Supreme Court in the case of A (Mother of X) v. State of
Maharashtra and another : 2024(6) SCC 327 had an occasion to deal with a similar
issue and has held that as under:-
"28. The powers vested under the Constitution in the High Court and
this Court allow them to enforce fundamental rights guaranteed
under Part III of the Constitution. When a person approaches the
court for permission to terminate a pregnancy, the courts apply their
mind to the case and make a decision to protect the physical and
mental health of the pregnant person. In doing so the court relies on
the opinion of the Medical Board constituted under the MTP Act for
their medical expertise. The court would thereafter apply their
judicial mind to the opinion of the Medical Board. Therefore, the
Medical Board cannot merely state that the grounds under Section
3(2-B) of the MTP Act are not met. The exercise of the jurisdiction
of the courts would be affected if they did not have the advantage of
the medical opinion of the board as to the risk involved to the
physical and mental health of the pregnant person. Therefore, a
Medical Board must examine the pregnant person and opine on the
aspect of the risk to their physical and mental health.
29. The MTP Act has removed the restriction on the length of the
pregnancy for termination in only two instances. Section 5 of the
MTP Act prescribes that a pregnancy may be terminated, regardless
of the gestational age, if the medical practitioner is of the opinion
formed in good faith that the termination is immediately necessary to
save the life of the pregnant person. Section 3(2-B) of the Act
stipulates that no limit shall apply on the length of the pregnancy for
terminating a foetus with substantial abnormalities. The legislation
has made a value judgment in Section 3(2-B) of the Act, that a
substantially abnormal foetus would be more injurious to the mental
and physical health of a woman than any other circumstance. In this
case, the circumstance against which the provision is comparable is
rape of a minor. To deny the same enabling provision of the law
would appear prima facie unreasonable and arbitrary. The value
judgment of the legislation does not appear to be based on scientific
parameters but rather on a notion that a substantially abnormal foetus
will inflict the most aggravated form of injury to the pregnant
person. This formed the basis for this Court to exercise its powers
and allow the termination of pregnancy in its order dated 22-4- 2024
[A v. State of Maharashtra, 2024 SCC OnLine SC 608] .
The provision is arguably suspect on the ground that it unreasonably
alters the autonomy of a person by classifying a substantially
abnormal foetus differently than instances such as incest or rape.
This issue may be examined in an appropriate proceeding should it
become necessary.
30. Moreover, we are conscious of the fact that the decision to
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terminate pregnancy is one which a person takes seriously. The
guidelines to terminate pregnancy as well as the scheme of the MTP
Act show the seriousness attached to the well-being of the pregnant
person throughout the process envisaged under the MTP Act.
Change in the opinion of the Medical Board may cause undue
trauma and exertion to a pregnant person whose mental health is
understandably under distress. While we understand the need for a
Medical Board to issue a clarificatory opinion based on the facts and
circumstances of each case, the board must explain the reasons for
the issuance of the clarification and, in particular, if their opinion has
changed from the earlier report. Pregnant persons seeking
termination of pregnancy seek predictability for their future. The
uncertainty caused by changing opinions of the Medical Board must
therefore balance the distress it would cause to the pregnant person
by providing cogent and sound reasons."
12. The Hon'ble Supreme Court in X v. Principal Secretary, Health and
Family Welfare Department, Government of NCT of Delhi, 2023 (9) SCC 433 had
an occasion to consider the constitutional values animating the interpretation of
MTP Act and Rules and with the Right to Reproductive Autonomy of a
woman. The Supreme Court held that the MTP Act is an aid to interpretation
understanding injury to mental health and held as under:-
"64. When interpreting a sub-clause or part of a statutory provision,
the entire section should be read together with different sub-clauses
being a part of an integral whole. [Balasinor Nagrik Coop. Bank Ltd.
v. Babubhai Shankerlal Pandya, (1987) 1 SCC 606; Madanlal
Fakirchand Dudhediya v. Shree Changdeo Sugar Mills Ltd., 1962
SCC OnLine SC 65 : 1962 Supp (3) SCR 973 : AIR 1962 SC 1543]
In terms of Section 3(2)(b) of the MTP Act, not less than two RMPs
must, in good faith, be of the opinion that the continuation of the
pregnancy of any woman who falls within the ambit of Rule 3-B
would involve : (i) a risk to her life; (ii) grave injury to her physical
health; or (iii) grave injury to her mental health. Alternatively, not
less than two RMPs must, in good faith, be of the opinion that there
is a substantial risk of the child suffering from a serious physical or
mental abnormality, if born. Women who seek to avail of the benefit
under Rule 3-B of the MTP Rules continue to be subject to the
requirements of Section 3(2) of the MTP Act.
65. One of the grounds on the basis of which termination of
pregnancy may be carried out is when the continuance of a
pregnancy would involve risk of injury to the mental health of the
woman. The expression "grave injury to her physical or mental
health" used in Section 3(2) is used in an overarching and all-
encompassing sense. The two Explanations appended to Section 3(2)
provide the circumstances under which the anguish caused by a
pregnancy may be presumed to constitute a grave injury to the
mental health of a woman.
66. Courts in the country have permitted women to terminate their
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pregnancies where the length of the pregnancy exceeded twenty
weeks (the outer limit for the termination of the pregnancy in the
unamended MTP Act) by expansively interpreting Section 5, which
permitted RMPs to terminate pregnancies beyond the twenty-week
limit when it was necessary to save the life of the woman. In X v.
Union of India [X v. Union of India, (2017) 3 SCC 458] , Mamta
Verma v. Union of India [Mamta Verma v. Union of India, (2018)
14 SCC 289], Meera Santosh Pal v. Union of India [Meera Santosh
Pal v. Union of India, (2017) 3 SCC 462], Sarmishtha Chakrabortty
v. Union of India [Sarmishtha Chakrabortty v. Union of India,
(2018) 13 SCC 339] , this Court permitted the termination of post
twenty-week pregnancies after taking into account the risk of grave
injury to the mental health of a pregnant woman by carrying the
pregnancy to term.
67. The grounds for approaching courts differ and include various
reasons such as a change in the circumstances of a woman's
environment during an ongoing pregnancy, including risk to life, [A
v. Union of India, (2018) 14 SCC 75; X v. Union of India, (2017) 3
SCC 458; Meera Santosh Pal v. Union of India, (2017) 3 SCC 462;
Tapasya Umesh Pisal v. Union of India, (2018) 12 SCC 57; Mamta
Verma v. Union of India, (2018) 14 SCC 289] risk to mental health,
[X v. Union of India, (2017) 3 SCC 458; Meera Santosh Pal v.
Union of India, (2017) 3 SCC 462; Sarmishtha Chakrabortty v.
Union of India, (2018) 13 SCC 339; Mamta Verma v. Union of
India, (2018) 14 SCC 289; Z v. State of Bihar, (2018) 11 SCC 572 :
(2018) 2 SCC (Cri) 675] discovery of foetal anomalies, [A v. Union
of India, (2018) 14 SCC 75; Sarmishtha Chakrabortty v. Union of
India, (2018) 13 SCC 339; Tapasya Umesh Pisal v. Union of India,
(2018) 12 SCC 57; Mamta Verma v. Union of India, (2018) 14 SCC
289] late discovery of pregnancy in case of minors and women with
disabilities, [X v. Union of India, (2020) 19 SCC 806] and
pregnancies resulting from sexual assault or rape. [Z v. State of
Bihar, (2018) 11 SCC 572 : (2018) 2 SCC (Cri) 675; X v. Union of
India, (2020) 19 SCC 806] These are illustrative situations thrown up
by cases which travel to the court. Although the rulings in these
cases recognised grave physical and mental health harms and the
violation of the rights of women caused by the denial of the option to
terminate unwanted pregnancies, the relief provided to the individual
petitioner significantly varied.
68. The expression "mental health" has a wide connotation and
means much more than the absence of a mental impairment or a
mental illness. The World Health Organisation defines "mental
health" as a state of "mental well-being that enables people to cope
with the stresses of life, realise their abilities, learn well and work
well, and contribute to their community". [World Health
Organisation, "Promoting Mental Health: Concepts, Emerging
Evidence, Practice (Summary Report)" (2004).] The determination
of the status of one's mental health is located in one's self and
experiences within one's environment and social context. Our
understanding of the term "mental health" cannot be confined to
medical terms or medical language, but should be understood in
common parlance. The MTP Act itself recognises the need to look at
the surrounding environment of the woman when interpreting injury
to her health. Section 3(3) states that while interpreting "grave injury
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to her physical or mental health", account may be taken of the
pregnant woman's actual or reasonably foreseeable environment. The
consideration of a woman's "actual or reasonably foreseeable
environment" becomes pertinent, especially when determining the
risk of injury to the mental health of a woman."
13. If the aforesaid principles are applied to the present facts and
circumstances of the case it is seen that the survivor is a rape victim. She is a
minor aged 14 years and 04 months. The team of experts consisting of three
Gynaecologist, one Radiologist and one Psychiatrist after examining the survivor
have opined that the survivor's pregnancy can be terminated with extreme risk and
informed consent of the survivor's guardian. The risk factor is explained to the
victim as well as the parents and they have given the consent for terminating the
pregnancy. The Hon'ble Supreme Court has permitted for termination of
pregnancy in cases where the fetus have exceeded the age of 30 weeks. The same
was followed by the Division Bench of this Court in the case of Victim X Vs. The
Superintendent of Police Department, Bhopal (W. A. No.1078/2024) decided on
09.05.2024. In the instance case also, the medical experts suggest that the
pregnancy is a high risk pregnancy. There is high risk in both the conditions i.e.
carrying pregnancy to the term and in terminating the pregnancy. The team of
experts has categorically observed that pregnancy if terminated at present, the baby
will be born alive, but chances of survival are very low. However, if the baby
survives then it can suffer some mental or physical disabilities.
14. Considering the overall facts and circumstances of the case as well as the
medical opinion given by the body of experts, this Court deems it appropriate to
allow this petition permitting termination of pregnancy subject to the following
conditions:-
"(i) The procedure of termination of pregnancy will be carried out in
the presence of the expert team of doctors. The expert doctors will
explain to the family members as well as the petitioner the risk of
getting the termination of her pregnancy and also other factors.
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(ii) Every care and caution will be taken by the doctors while
terminating the pregnancy. All medical attention and other medical
facilities including that of a presence of a Pediatrician as well as a
Radiologist and other required doctors will be made available to her.
(iii) The post operative care up to the extent required, will be
extended to the petitioner. It will be the duty of the State
Government to take care of the child, if born alive.
(iv) The doctors will also ensure that a sample from the foetus is
protected for DNA examination and as and when required will be
handed over to the prosecution for using in the criminal case itself.
(v) A specialized team of Doctors shall take a decision as to when to
terminate the pregnancy. All necessary care and caution shall be
taken by the Doctors while carrying out the procedure for
termination of the pregnancy."
15. With the aforesaid observations, this petition is allowed and disposed off .
(VISHAL MISHRA)
JUDGE
AM
