Madhya Pradesh High Court
Prosecutrix X vs The State Of Madhya Pradesh on 25 August, 2025
Author: Vishal Mishra
Bench: Vishal Mishra
NEUTRAL CITATION NO. 2025:MPHC-JBP:40299
1 WP-34157-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 25th OF AUGUST, 2025
WRIT PETITION No. 34157 of 2025
PROSECUTRIX X
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Alok Agnihotri - Govt. Advocate for State and its functionaries.
ORDER
In pursuance to the letter addressed to the Registrar General dated
23.08.2025 as per directions issued by the Division Bench of this Court in
the case of In reference (suo moto) vs State of M.P. : Writ Petition No. 5184
of 2025 decided on 20.02.2025, cognizance was taken and the letter was
treated as suo moto petition. Accordingly, this writ petition came up for
consideration before this Court.
2. The facts of the case, in substance, are that the prosecutrix is minor
aged around 16 years. It is alleged that she was sexually assaulted and raped
by accused against which an FIR as Crime No. 268 of 2025 for the offences
under Section 137(2), 64(2)(m) of the BNS and Sections 5(l)/6, 5(j)(ii)/6 of
the POCSO Act has been registered. During medical examination, the victim
was found to be pregnant.
3. It is argued that the petitioner being a rape victim, is having every right
to get the termination of her pregnancy. The opinion of the Medical Board is
NEUTRAL CITATION NO. 2025:MPHC-JBP:40299
2 WP-34157-2025
produced before this Court, the relevant extracts read as follows :
Opinion by Medical Board for termination of
pregnancy
(a) Allowed : YES
.... "considering the fact that continuation or
termination of pregnancy both involves risk for life of
victim. Her biological age is 16 years. In these
circumstances, the patient is "Primigravida 31 weeks
pregnancy with preeclampsia with severe features with
moderate anemia with HELLP syndrome, 'continuation
of pregnancy is more injurious to the victim than
termination of pregnancy'. In view of same, medical
termination of pregnancy is to be done by taking all
possible medical care to save the life of the victim. All
the risk of life of the victim should be borne by her
parents/ guardian."
4. From a perusal of the report so submitted, it appears that the
examination has been conducted by the Medical Board including
Superintendent Representative, Obstetrics and Gynecologists, Medicine,
Pediatric Medicine, Pathology, Surgery and Radiodiagnosis. The report as
terms of Form-D is taken on record. However, as there is a bar under the
Medical Termination of Pregnancy Amendment Act, 2021. For terminating
pregnancies exceeding 24 weeks, it is observed that termination can be
performed with all the explained risk of the anticipated and unanticipated
complications in relation to termination of Rh negative teenage pregnancy
(high risk), provided risk of termination is same at this gestation and full term
pregnancy. The report clearly indicates that the pregnancy can be terminated
subject to certain risks. The risk factors will always be explained to the
victim.
5. The relevant provisions under the Medical Termination of Pregnancy
Act, 1971 which deal with the cases of termination of pregnancy are as
NEUTRAL CITATION NO. 2025:MPHC-JBP:40299
3 WP-34157-2025
under:
3. When pregnancies may be terminated by registered medical
practitioners.- (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) ...
(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) ...
...
5. Sections 3 and 4 when not to apply . - (1) The provisions of Section
4, and so much of the provisions of sub-section (2) of Section 3 as
relate to the length of the pregnancy and the opinion of not less than
two registered medical practitioners, shall not apply to the termination
of a pregnancy by a registered medical practitioner in a case where he
is of opinion, formed in good faith, that the termination of such
pregnancy is immediately necessary to save the life of the pregnant
woman.
6. The Hon'ble Supreme Court in a series of judgments had an occasion
to consider the aspect of termination of pregnancies exceeding 24 weeks and
in the case of X vs Principal Secretary, Health and Family Welfare
Department reported in AIR 2022 SC 4917, the Hon'ble Supreme Court has
considered the aforesaid aspect of the matter including the choice of the
woman to get the pregnancy terminated and other socio-economic factors
including the physical health condition of the woman has permitted for
terminating the pregnancy. The aforesaid judgment was again followed by
the Hon'ble Supreme Court in the case of XYZ vs State of Gujarat and
NEUTRAL CITATION NO. 2025:MPHC-JBP:40299
4 WP-34157-2025
others, reported in 2023 SCC OnLine SC 1573, wherein the Hon'ble
Supreme Court taking note of several aspects of the matter has permitted for
termination of pregnancy. It has been held as under :
17. More recently, in the 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. 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 warranted, 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
recognizes 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.
18. In the context of abortion, the right of dignity entails recognising
the competence and authority of every woman to take reproductive
decisions, including the decision to terminate the pregnancy. Although
human dignity inheres in every individual, it is susceptible to violation
by external conditions and treatment imposed by the State. The right of
every woman to make reproductive choices without undue interference
from the state is central to the idea of human dignity. Deprivation of
access to reproductive healthcare or emotional and physical well-being
also injures the dignity of women.
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.
20. In view of the above discussion and on perusal of the latest medical
report we permit the appellant to terminate her pregnancy. We direct
the appellant to remain present before the KMCRI Hospital, Bharuch,
Gujarat during the course of the day, today (21.08.2023) or 09 : 00
A.M. tomorrow (22.08.2023) as she deems fit so that the termination of
pregnancy could be carried out preferably during the course of the day
today (21.08.2023) or tomorrow i.e. 22.08.2023.
21. Subsequently to the medical procedure to be carried out either
today or tomorrow, in the event, the foetus is found to be alive, the
NEUTRAL CITATION NO. 2025:MPHC-JBP:40299
5 WP-34157-2025
hospital shall give all necessary medical assistance including
incubation either in that hospital or any other hospital where incubation
facility is available in order to ensure that the foetus survives. Further,
in case the foetus survives, then State shall take steps for ensuring that
the child could be adopted in accordance with law.
22. At this stage, learned Senior Counsel for the appellant sought a
direction to the concerned doctors to preserve evidence for subsequent
DNA Test Report by drawing tissues from the foetus in order to use it
as a piece of evidence in the ensuing trial to be prosecuted by the
appellant herein. We direct the concerned medical experts to have
regard to the feasibility of such a procedure being done, in the event of
the foetus being alive or in the event the foetus not being alive or is still
born and accordingly take steps as sought for by the appellant herein.
23. It is needless to observe that in the event tissues are drawn for the
purpose of DNA test the same shall be handed over to the investigating
agency by the concerned hospital.
24. A copy of this order passed today be handed over to learned Senior
Counsel for the appellant and learned Standing Counsel for the State of
Gujarat.
25. The appeal is allowed in the aforesaid terms.
26. Pending application(s), if any, shall stand disposed of.
7. In the present case, the petitioner is a rape victim aged about 16 years
carrying pregnancy of 31 weeks. Admittedly, she was minor at the relevant
time. The father of the victim has consented for termination of pregnancy. As
per the report, the Medical Board opined that continuation of pregnancy is
more injurious to the victim than termination of pregnancy. Even the other
family aspects are also required to be considered.
8. Under these circumstances and following the judgments passed by the
Hon'ble Supreme Court in the aforesaid cases, this Court deems it
appropriate to permit the termination of pregnancy of the petitioner-victim
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
NEUTRAL CITATION NO. 2025:MPHC-JBP:40299
6 WP-34157-2025
(prosecutrix) the risk of getting the termination of her pregnancy
and also other factors.
(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 fetus is
protected for DNA examination and as and when required will be
handed over to the prosecution for using in the criminal case itself.
9. It is made clear that all necessary care and caution be taken by the
doctors while carrying out the procedure for termination of pregnancy.
10. The petition is disposed of in above terms. No order as to costs.
(VISHAL MISHRA)
JUDGE
VV
