[Cites 8, Cited by 0]
Orissa High Court
Victim Cum Informant vs State Of Odisha ..... Opposite Party on 19 January, 2026
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMP No. 42 of 2026
Victim cum Informant ..... Petitioner
Mr. Karunakara Gaya, Advocate
-versus-
State of Odisha ..... Opposite Party
Mr. Sarathijyoti Mohanty,
Additional Standing Counsel
CORAM:
HON'BLE MISS JUSTICE SAVITRI RATHO
ORDER
19.01.2026
Order No. (Through hybrid Mode)
03.
1. The petitioner had initially filed CRLMC No.88 of 2026 with
a prayer to direct the Investigating Officer to conduct DNA test of
the Victim-Petitioner and the fetus and permit her to terminate her
pregnancy by a Registered Medical Practitioner without further
delay. By order dated 08.01.2026, a coordinate Bench of this Court
had directed the office to convert the application to a criminal writ
petition and for listing before the assigned Bench. The CRLMP has
accordingly been registered and listed before this Bench.
2. Heard Mr. Karunakara Gaya, learned counsel for the
petitioner. He submits that as on date the petitioner is 19 weeks 2
days pregnant.
3. Mr. S. J. Mohanty, learned Additional Standing Counsel files
an affidavit dated 16.12.2026 of the IIC, Binjharpur Police Station.
Relevant portions of the affidavit are extracted below;
"That before going to specific reply to the averments
made in CRLMP Application, the present Opp Party would
like to draw the kind attention that, termination of
Pregnancy 'or' abortion governed by the The Medical
Termination of Pregnancy Act, 1971 and amendment from
time to time. In the said MTP Act, 1971 Section-3 which
provides statutorily protected for termination, which is re-
produced herein under for kind and ready reference of this
Hon'ble Court:-
"3 When pregnancies may be terminated by registered
medical practitioners: -
(1) Notwithstanding anything contained in the Indian
Penal Code 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 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 Gynecologist;
(b) a Pediatrician;
(c) a Radiologist or Sinologist; 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.
(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 1 [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
In this case Victim is a married woman of sound mind
and on her behest the petition for termination of pregnancy
has been filed before the learned trial court. In such
situation, consent is not required and only length of
pregnancy is to be determined of the Victim for safe
termination/abortion of Pregnancy of the Victim under the
MTP Act. The Petitioner not filed any single scrap of
documents either from a registered Radiologist or testing
report in order to ascertain the length of pregnancy.
4. That in the case of Suchitra Srivastava & Another-
Vrs.-Chandigarh Administration reported in 2009 (9)
SCC-1 by Hon'ble Three Judges Bench pleased to hold that
Choice of Women has been recognized as a fundamental
right. And it is also made clear that ordinarily pregnancy
can be terminated only when Medical Practitioner is
satisfied that a 'Continuance of the pregnancy would
involve a risk to the life of the pregnant women or of grave
injury to her physical and mental health as per Section-
3(2)(i) or when there is a substantial risk that if the child
were born, it would suffer from such physical or mental
abnormalities as to be seriously handicapped as per
Section-3(2)(ii). While, the satisfaction of one Medical
Practitioner is required for terminating a pregnancy within
twelve weeks of the gestation period, two medical
practitioners must be satisfied about either of these grounds
in order to terminate a pregnancy between twelve to twenty
weeks of gestation period. In such circumstances consent
and period of gestation is required."
(emphasis supplied)
The affidavit is taken on record. It shall be scanned and
incorporated in the digital record. Copy of the same has already been
served on Mr. Gaya, learned counsel for the petitioner.
4. As no medical documents had been filed on behalf of the
Petitioner in support of the period of her pregnancy, the matter was
passed over in the first hour to enable the learned Additional
Standing Counsel to produce the copy of the case diary.
5. The copy of the case diary in connection with Zero FIR No.
01 of 2025 registered on 21.11.2025 at Mahila Police Station,
Rourkela and sent to the Binjharpur Police Station and registered as
Binjharpur PS Case No. 553 of 2025 registered on 23.11.2025 under
Section 64(1)/85/296/74/351(2)/3(5) of the BNS read with Section 4
of the DP Act, is produced by Mr. S.J. Mohanty, learned Additional
Standing Counsel after recess.
6. Perusal of the case diary reveals that the victim has been
examined in the CHC, Binjharpur on 24.11.2025. In the report, it is
stated that the victim was 13 weeks 5 days pregnant on that day. So
the victim will be 21 weeks 4 days pregnant on date.
7. Mr. Karunakara Gaya, learned counsel for the petitioner relies
on the decision of the High Court of Delhi in the case of X vs. Govt.
of NCT of Delhi, decided on 17th September, 2025 and the decision
of this Court in the case of X vs. State of Odisha in W.P.(C) No.
5396 of 2025, judgment dated 03.03.2025, where this Court had
directed the State Government to prepare SOP in respect of medical
termination of pregnancies.
8. Mr. S. J. Mohanty, learned Additional Standing Counsel relies
on the decision of the Hon'ble Supreme Court in the case of Suchita
Srivastav and another vs. Chandigarh Administration, reported in
(2009) 9 SCC 1. He also submits that pursuant to the decision of this
Court in the case of X vs. State of Odisha (supra), the Government
has already framed SOP on 17.09.2025. He produces a copy of the
notification dated 17.09.2025 containing the "comprehensive SOP
for Medical Termination of the Pregnancy (MTP) involving minors
in odisha, incorporating pregnancies up to and beyond 24 weeks,
aligned with MTP Act, POCSO Act and other relevant judicial
directives". The same is taken on record.
9. In view of the urgency of the matter, list this matter on
21.01.2026 for delivery of order.
(Savitri Ratho)
Judge
Subhalaxmi
Signed by: SUBHALAXMI PRIYADARSHANI
Location: Orissa High Court, Cuttack
Date: 20-Jan-2026 13:49:16
