[Cites 13, Cited by 0]
Madhya Pradesh High Court
Prosecutrix X vs The State Of Madhya Pradesh on 28 November, 2025
Author: Vishal Mishra
Bench: Vishal Mishra
NEUTRAL CITATION NO. 2025:MPHC-JBP:61617
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 28th OF NOVEMBER, 2025
WRIT PETITION No. 46758 of 2025
PROSECUTRIX X
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Aakash Malpani - Panel Lawyer for respondents/State.
ORDER
In pursuance to the letter addressed to the Registrar General dated
24.11.2025 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. It is submitted that the prosecutrix 'X' being a rape victim, is having
every right to get the termination of her pregnancy. From the perusal of the
record, the prosecutrix who is aged about 15 years has been carrying
pregnancy of 32 weeks and 2 days as on 24.11.2025. The relevant extracts of
the opinion submitted by the Medical Board reads as under :
---
चू ं क अिभयो ी क गभाव था 28 हफ् ते से अिधक अविध क है जो क गभ म जी वत
ब चा (Viability) होने का संकेत दे ती है ।
अिभमतः ग ठत मे डकल बोड ट म ारा यह अिभमत है क इस गभाव था क अविध
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म डलेवर क जा सकती है , जसम मॉ (अ ववा हत ट नेज े नसी 15 वष 05 माह 10 दन
हाई र क े नसी) के िलये गायिनक आई.सी.यू. क आव यकता पड सकती है एवं डलेवर
के दौरान आप रप व (Preterm) ब चा होगा जसके िलये नवजात गहन िच क सा ईकाई
(NICU) क आव यकता पड सकती है । आप रप व (Preterm) ब चा होने क वजह से ब चा
शार रक एवं मानिसक प से वकलांग हो सकता है । इसिलये मां एवं ब चे क सुर ा को
गत रखते हुये मां क डलेवर मे डकल कॉलेज जबलपुर म कराया जाना उिचत होगा।
3. From a perusal of the report so submitted, it appears that
the examination has been conducted by the Medical Board including
Department of Obstetrics and Gynecologists, Psychiatry, Pediatrician and
Pathology. 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.
4. The relevant provisions under the Medical Termination of Pregnancy
Act, 1971 which deal with the cases of termination of pregnancy are as
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) ...
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(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.
5. In the case of A vs State of Maharashtra, reported in (2024) 6 SCC
327, the Hon'ble Supreme Court has held as under :
"25. From a perusal of the MTP Act, its Statement of Objects and
Reasons as well as the recommendation of the Shah Committee which
examined the issue of liberalising abortion laws in India, [Report of the
Committee to Study the Question of Legalisation of Abortion, Ministry
of Health and Family Planning, Government of India, dated December
1966.] two clear postulates emerge as to the legislative intent of the
MTP Act. Firstly, the health of the woman is paramount. This includes
the risk avoided from the woman not availing unsafe and illegal
methods of abortion. Secondly, disallowing termination does not stop
abortions, it only stops safe and accessible abortions. The opinion of
the RMP and the Medical Board must balance the legislative mandate
of the MTP Act and the fundamental right of the pregnant person
seeking a termination of the pregnancy. However, as noticed above and
by this Court in X v. State (NCT of Delhi) [X v. State (NCT of Delhi),
(2023) 9 SCC 433] the fear of prosecution among RMPs acts as a
barrier for pregnant people in accessing safe abortion. Further, since
the MTP Act only allows abortion beyond twenty-four weeks if the
foetus is diagnosed with substantial abnormalities, the Medical Board
opines against termination of pregnancy merely by stating that the
threshold under Section 3(2-B) of the MTP Act is not satisfied. The
clarificatory report dated 3-4-2024 fell into this error by denying
termination on the ground that the gestational age of the foetus is
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above twenty-four weeks and there are no congenital abnormalities in
the foetus.
....
35. In Suchita Srivastava v. Chandigarh Admn. [Suchita Srivastava v.
Chandigarh Admn., (2009) 9 SCC 1 : (2009) 3 SCC (Civ) 570] , a
three-Judge Bench of this Court has held that the right to make
reproductive choices is a facet of Article 21 of the Constitution.
Further, the consent of the pregnant person in matters of reproductive
choices and abortion is paramount. The purport of this Court's decision
in Suchita Srivastava [Suchita Srivastava v. Chandigarh Admn., (2009)
9 SCC 1 : (2009) 3 SCC (Civ) 570] was to protect the right to abortion
on a firm footing as an intrinsic element of the fundamental rights to
privacy, dignity and bodily integrity as well as to reaffirm that matters
of sexual and reproductive choices belong to the individual alone. In
rejecting the State's jurisdiction as the parens patriae of the pregnant
person, this Court held that no entity, even if it is the State, can speak
on behalf of a pregnant person and usurp her consent. The choice to
continue pregnancy to term, regardless of the court having allowed
termination of the pregnancy, belongs to the individual alone.
6. In the present case, the age of the fetus is exceeding 24 weeks;
therefore, the SOPs in terms of the order passed 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 are required to be followed
in the present case. They are as under :
(b) 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
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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;
(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.
7. 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
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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
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
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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
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.
8. There is no statement or consent of the victim placed on record;
however, the victim's mother has denied for termination of pregnancy
looking to the risk involved to the life of the victim.
9. In view of the aforesaid and looking to the medical report, opinion of
the doctors, statement of the mother of the victim as well as age of the victim
as well as fetus and their health condition, termination of the pregnancy
cannot be permitted. Further, this Court deems it appropriate to dispose of
this writ petition by directing the authorities of the C.W.C. Mandla to take
the custody of the child after 15 days from the date of his/her birth and to
take every care and caution for upbringing the child. The child will remain
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with the mother/victim for 15 days from date of birth for the purpose of
breast feeding. The C.W.C. will be at liberty to give the child on adoption to
any willing family in accordance with law. The State authorities are directed
to ensure the privacy of the victim and any information including family
details should not be published in any form of media which could lead to the
identification of the victim. The said directions are being issued looking to
the welfare of the child so that his/her upbringing can be taken care of.
10. In above terms, the petition stands disposed of finally.
(VISHAL MISHRA)
JUDGE
JP
