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Madhya Pradesh High Court
In Reference (Suo Moto) vs The State Of Madhya Pradesh on 31 March, 2026
NEUTRAL CITATION NO. 2026:MPHC-IND:8449
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE JAI KUMAR PILLAI
ON THE 31st OF MARCH, 2026
WRIT PETITION No. 11310 of 2026
IN REFERENCE (SUO MOTO)
Versus
THE STATE OF MADHYA PRADESH
Appearance:
In Reference.
Shri Sudeep Bhargav (Dy. A. G.) appearing on behalf of Advocate
General/respondent/State.
ORDER
This is an Suo Moto Reference sent by Smt. Rashmi Walter, IInd
Additional Sessions Judge, Sardarpur, District-Dhar addressed to Principal
Registrar of this Court vide its letter No.60/2026 dated 25/03/2026 for
termination of pregnancy of the rape victim.
2 . It is alleged that the victim was sexually assaulted by the
accused and thereafter an FIR for the offences punishable under Section
64(2)(m), 127(3), 351(3) of the BNS, 2023 and Section 3/5 of M.P.
Religious Freedom Act, 2021 was lodged.
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3 . The application briefly states that the 21-year-old plaintiff has
been sexually assaulted, resulting in her pregnancy. If the child is born, the
plaintiff's reputation and honor will be destroyed. Therefore, she should be
granted permission to have an abortion.
4 . The medical report of the prosecutrix is attached with the case-
diary, according to which the prosecutrix is 29 weeks and 3 days pregnant on
24/03/2026.
5 . The applicant/prosecutrix says that she is carrying a child in her
womb, and she does not wish to give birth to the child. Denying permission
for abortion would darken her future. Therefore, the plaintiff requested that
her pregnancy be terminated.
6 . In view of the letter dated 25/03/2026 addressed to Principal
Registrar of this Court, accordingly, the matter is listed today and is taken-up
for consideration.
7 . The report of Medical Board dated 24/03/2026 is in the following
terms:-
"The Head of Department MTH hospital Indore
Through proper channel
Subject:-Medical examination report of medical board
members regarding MLC case of victim X to WP5184/2025
Respect sir,
With reference to WP No. WP5184/2025 we the members of
medical board constituted by Head of the Department of MTH
hospital, Indore have carefully examined Victim X, resident of
ward 15 Ajad margh Rajgarh Dhar Thana Rajgarh on 24/03//26 at
12 pm and reviewed her blood investigation and ultrasonography
report (single live intrauterine pregnancy of 29 week 3 days) and
the individual medical examination reports have been attached
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with the letter. Victim X is medically fit for termination of
pregnancy after correction of hemoglobin and can be terminated
after Hon'ble Court's order."
8 . It is pointed out that it will be very difficult for a rape victim to
carry the pregnancy and will not be in the interest of the mother as the same
will cause great impact on her physical and mental status as well as the child
is born alive. In terms of the Medical Termination of Pregnancy Act, 1971,
pregnancy can be terminated upto 24 weeks subject to opinion of the
Medical Board. The petition is filed to secure the life of the minor victim as
unwarranted pregnancy may have adverse effect on her physical, mental and
social status and unnecessarily she will be liable to bear the responsibility of
an unwarranted child without any fault on her part. It will be very difficult
for her to face the society.
9 . Insofar as the Medical Termination of Pregnancy Act, 1971 is
concerned, the permission can always be granted for termination of
unwarranted pregnancy prior to 24 weeks subject to approval of the Medical
Board. 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,-
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(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 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 .. ...
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."
10. In similar circumstances, as in the present case where age of the
fetus is more than 24 weeks, the Hon'ble Supreme Court in the case of XYZ
vs State of Gujarat and others reported in 2023 SCC OnLine SC 1573 has
granted permission to the appellant to terminate her pregnancy. It has been
observed thus :
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.
11. At this stage, we restrain ourselves from observing anything
on the order passed by the learned Single Judge of the High Court
in a disposed of matter on 19.08.2023 pursuant to the order passed
by us on the said date though we have to say that it was highly
improper.
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
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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 29 weeks 3 days +/- 2
weeks duration and the live intrauterine foetus weights around
1088 grams as per the ultra sonography done on 24/03/2026.
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.
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."
13. In Indian society, within the institution of marriage, generally
pregnancy is a reason for joy and celebration and of great
expectation, not only for the couple but also for their families and
friends. By contrast, pregnancy outside marriage, in most cases, is
injurious, particularly, after a sexual assault/abuse and is a cause
for stress and trauma affecting both the physical and mental health
of the pregnant woman the victim. Sexual assault or abuse of a
woman is itself distressing and sexual abuse resulting in
pregnancy compounds the injury. This is because such a
pregnancy is not a voluntary or mindful pregnancy.
14. In Suchita Srivastava v. 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.
15. In Sarmishtha Chakrabortty v. Union of India Secretary,
(2018) 13 SCC 339; this Court, considered the medical report and
held that unless the pregnancy was terminated, the life of the
mother and that of the baby to be borne would be in great danger
and, therefore, permitted termination of the pregnancy.
16. A three-Judge Bench of this Court in Murugan Nayakkar v.
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Union of India, Writ Petition (Civil) No. 749 of 2017, disposed of
on 06.09.2017, while considering the case of a minor petitioner-
survivor of alleged rape and sexual abuse, held that it would be
appropriate that termination of pregnancy be allowed in
accordance with the opinion of the Medical Board constituted by
an order of this Court, to the effect that termination of pregnancy
should be carried out. A direction was issued that on a very next
date i.e. 07.09.2017, the petitioner was to be present so that on
08.09.2017 the termination of pregnancy could be carried out
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
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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."
11. Accordingly, this Court permits 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 at least 3
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 other related medical 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 the victim.
(iii) The post operative care, upto the extent required, will
be extended to the victim. It will be the duty of the State
Government to take care of the child, if born alive.
(iv) 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.
(v) The procedure to be carried out as expeditiously as
possible taking all precautions and measures as required in the
matter.
(vi) The victim shall remain present before the Head of
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the Department of Obstetrics and Gynaecology, Maharaja
Tukojirao Hospital, M.Y.H.M.G.M. Medical College, Indore M.P.
o n 01/04/2026 i.e. tomorrow at 09:00 AM sharp, so that the
termination of pregnancy could be carried out by the Team of
Doctors preferably during the course of the day i.e. on 01/04/2026
(tomorrow) or day-after tomorrow i.e. 02/04/2026."
(vii) Registry is directed to provide certified copy of this
order to the Office of Advocate General today itself, so as to
communicate this order to the victim for appearance on the above
mentioned date.
12. With these observations, the petition is disposed of
finally.
No order as to costs.
(JAI KUMAR PILLAI)
JUDGE
Aiyer
