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Madhya Pradesh High Court
Prosecutrix X vs The State Of Madhya Pradesh on 11 February, 2026
Author: Vishal Mishra
Bench: Vishal Mishra
NEUTRAL CITATION NO. 2026:MPHC-JBP:12218
1 WP-5512-2026
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 11 th OF FEBRUARY, 2026
WRIT PETITION No. 5512 of 2026
PROSECUTRIX X
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri A.S. Baghel - Govt. Advocate for the State.
ORDER
Pursuant to the letter addressed to the Registrar General dated 09.02.2026
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 a minor girl aged
about 13 years is a rape victim. It is alleged that she was sexually assaulted and
raped by accused against which an FIR as Crime No. 34 of 2026 for the offences
under Sections 351(2), 62(2)(m), 65(1), 332 of the BNS and Section 5l/6, 5j(ii)/6
of the POCSO Act and Sections 3(2)(va), 3(2)(w) and 3(1)(w)(i) of the SC/ST Act
has been registered at Police Station Khurai District Sagar (M.P.). During medical
examination, the victim was found to be pregnant.
3. It is submitted that the prosecutrix 'X' being a rape victim, is having every
right to get the termination of her pregnancy. The report of the Medical
Board/MTP Committee comprising of HODs of Pediatrics, Radiodiagnosis,
General Surgery, Pathology and Obstetrics and Gynecology of the Bundelkhand
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Medical College, Sagar dated 07.02.2026 is produced before this Court, the
relevant extracts thereof read as follows :
We have examined the survivor on 07-02-2026 at 01:30 pm. She is aged
around 13 years as per documents (12 years as per aadhar card). We
have concluded that
1- The survivor's Heamoglobin is 9.6 gm/dl dated 07-02-2026.
2- The survivor's pregnancy's Gestational age is appoximately 29 weeks
1 day duration by USG scan dated 07-02-2026 and no obvious
detectable congenital abnormality noted from available window.
3- Till the point of examination, the survivor does not have any
complication associated with or caused by pregnancy, complication in
Obstetrics, whether abortion or labour are probable and unpredictable
and many times unpreventable, The process of abortion is termed as
mini labour and hence subject to similar complications that tend to occur
later in pregnancy and delivery at term, particularly in teenage
pregnancy.
4 - The patient is not eager to continue the pregnancy, She has no
symptoms of addiction, major psychiatric disorder, She however does
not seem to mature enough to take care of the baby.
5- There is possibility that the pregnancy, if delivered at present, the
baby will be born alive and the chances of survival are fair as eff. fetal
wt. is 1355±217 gms. 6- Keeping in mind the above facts, if permitted
by the Hon'ble court, her pregnancy will be delivered with utmost care
as per medical guideline. It is however medically impossible to predict
unforeseen complication and health condition of the survivor post
labour.
करण म सिमित का अिभमतः-
Foetus is healthy and more than 28 weeks of gestation (USG on 07-02-
2026-Gestational age 29 weeks 1 day) so that pregnancy cannot be
terminated but can be delivered.
4. There is a bar under the Medical Termination of Pregnancy Amendment
Act, 2021. For terminating pregnancies exceeding 24 weeks, it is observed that
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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 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. Regarding the consent, 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
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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 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.
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
NEUTRAL CITATION NO. 2026:MPHC-JBP:12218
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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 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
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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 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. If the aforesaid proposition of law is applied to the facts of the present case,
then it is seen that the choice to continue pregnancy to term, regardless of the
court having allowed termination of the pregnancy, belongs to the individual
alone. Further, the consent of the pregnant person in matters of reproductive
choices and abortion is paramount. Even the MTP Act, particularly clause (4) of
Section 3, speaks of the same. As already pointed out hereinabove that clause (4)
(b) of Section 3 of the MTP Act clearly provides for that "... no pregnancy shall be
terminated except with the consent of the pregnant woman".
9. In the present case, the petitioner is a rape victim. She is carrying pregnancy
NEUTRAL CITATION NO. 2026:MPHC-JBP:12218
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of more than 28 weeks and has been caused on account of the girl being raped.
The statements of victim and her parents have been recorded and they have given
consent on 06.02.2026 for termination of pregnancy which reads thus :
कथन
मेरा नाम **** है मेर उ 13 वष है । पता का नाम **** है । **** ****
(अिभयु ) नाम के लड़के ने मेरे साथ शा र रक संवध बनाये। मुझे वाडन ***
चौक दार ने मुझे मेरे कमरे से बुलाया और अपने कमरे म बैठने बोला और
दरवाजा बंद कर दया। फर **** (अिभयु ) अंदर आया और दरवाजा बंद कर
िलया और मेरे कपड़े उतारकर मेरे साथ जबरद ती शार रक संबंध बनाये। म
िच लाई कसी ने नह ं सुना। फर मने ये बात कसी को नह ं बताई। ****
(अिभयु ) ने कहा कसी को मत बताना नह ं लो म तु हारे पूरे प रवार को मार
डालूग
ं ा। कुछ दन बाद म मअपने गाँव २ दन के िलए गई। वहां भी मने यह
बात कसी को नह ं बताई और वा पस हो टल गई। फर माहवार नह ं आने पर
मने *** और *** को बताई। तो कट से चेक कया। तब तक तीन चार मह ने
हो गये थे। तो मेडम ने पता जी को बुला कर बताया। तो पता जी अपने साथ
घर ले गये। और फर भोपाल अ पताल म चेक कराया तो पता चला मेरे पेट म
ब चा है । इसमे मुझे हा टल म मेडम ने मुझे गोिलया पीले रं ग क बड़ बड़
खलाई थी .... बीमार हो गई थी। अब म ये ब चा ज द से अलग करवा
द जये। मै ब चे को ज म नह ं दे ना चाहती । ये सब करण को बािलका *** ने
बाल क याण सिमित क म हला सद य के सामने और फर पूर सिमित के
सामने रोते हुए बताया। ....
......
सहमित प
हम *** आयु पता ** माता ** िनवासी व दशा ** । हम अपनी पु ी ** का
गभ समापन के िलए मेर सहमित है ।
10. The other family aspects are also required to be considered in such cases.
Under these circumstances, as the prosecutrix and her parents have shown their
willingness for termination of pregnancy 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 prosecutrix subject to the following
directions :
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(i) The prosecutrix-victim along with her parents to remain present
before the Bundelkhand Medical College and Hospital, Sagar at the
earliest, today or tomorrow, so that the termination of pregnancy can be
carried out as expeditiously as possible. A specialised team of Doctors
shall take a decision regarding termination of pregnancy.
(ii) 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 (prosecutrix) the risk of
getting the termination of her pregnancy and also other factors.
(iii) 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.
(iv) 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.
(v) 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.
(vi) All necessary care and caution be taken by the doctors while
carrying out the procedure for termination of pregnancy.
(vii) Considering the finding of the Medical Board, the Hospital and its
medical team would take care to ensure sensitive treatment and
handling of the petitioner in connection with all procedures, whether
medical or administrative, keeping her emotional and mental health at
the forefront.
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(viii) The copy of the order be supplied to the Dean, Bundelkhand
Medical College, Sagar for further action.
11. In above terms, the petition is disposed of finally.
Let a c opy of this order be forwarded to the counsel for the State, Special
Judge, Sagar and Superintendent of Police, Sagar for further action.
(VISHAL MISHRA)
JUDGE
VV
