Rajasthan High Court - Jodhpur

Xx vs The State Of Rajasthan ... on 8 October, 2025

Author: Nupur Bhati

Bench: Nupur Bhati

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      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                  S.B. Civil Writ Petition No. 19375/2025

XXXX
                                                                        ----Petitioner
                                        Versus
1.          The State Of Rajasthan, Through The Principal Secretary,
            Department Of Medical And Health Services, Government
            Secretariat, Jaipur, Rajasthan.
2.          District Legal Services Authority, Udaipur
3.          The Chief Medical And Health Officer, District Udaipur.
4.          The Superintendent Of Police, District Udaipur.
5.          Station House Officer, Police Station, Nai District Udaipur
                                                                     ----Respondents


For Petitioner(s)             :     Ms. Priyanka Borana
For Respondent(s)             :     Mr. N.S. Rajpurohit, AAG assisted by
                                    Mr. Shersingh Rathore.



                 HON'BLE DR. JUSTICE NUPUR BHATI

Order

08/10/2025

1. Learned counsel for the petitioner has preferred the present

writ petition invoking Article 226 of the Constitution of India

claiming following reliefs:-

"xxxxxx

(i) By and appropriate writ, order or direction, respondent authorities may kindly be directed to take immediate steps for termination of pregnancy of the petitioner under the provisions of Medical Termination of Pregnancy Act, 1971.

(ii) Direct the respondents to provide all facilities and post operative care to the petitioner (victim).

xxxxxx"

2. Learned counsel for the petitioner submits that petitioner is

mentally challenged and she being a rape victim, does not wish to

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continue with the pregnancy. Learned counsel for the petitioner

also submits that the petitioner's family also does not want to

continue with the pregnancy.

3. Learned AAG, in compliance of the order dated 06.10.2025

ha produced the medical report along with sonography and other

relevant documents. In pursuance of the directions given by this

Court on 06.10.2025, respondents had constituted a medical

board consisting of Additional Principal II & Professor, Department

of Radiodiagnosis, Head of Department, Department of

Gynecology and Obstetrics, Senior Professor, Department of

Medicine and Professor, Department of Psychiatry. The medical

board after examining the petitioner following opinion was given:-

"1. On Radiological Examination: USG abdomen (Dated 07.10.25) reveals normal upper abdomen with gravid uterus. There is evidence of single live foetus of 31 weeks 4 days gestational duration with breech presentation. There is no gross congenital malformation. (Report attached).

2. On Obstetrics Examination: Amenorrhoea duration not known. OH: Nil. LMP not known. On per abdomen Examination: Uterus 30-32 week size. fetal heart sound present. Breech floating and Uterus is not acting. Advise: Ultrasonography for Obstetrics details, CBC, Bleeding time, Clotting time, Blood group.

3. On Medical Examination: Patient has H/O multiple episodes of spontaneous falls with loss of consciousness since childhood however she has no Clinical medical illness at present. Adv:- MRI brain, EEG, All routine blood investigations and Neurophysician's opinion.

4. On Psychiatric (Mental Status) Examination: On the basis of history and clinical examinations, Ms. L d/o Hurma seems to be having Intellectual Disability but severity could not be assessed and needs IQ assessment by clinical psychologist."

4. As per the Sonography Report, the foetus is well developed

and having the gestation age of 31 weeks 4 days. It was further

opined that:

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"Fetal cardia 4 chamber view, 3 vessel view appear normal.

Cardiac axix left. Fetal lungs appear normal. Urinary bladder is partially distended and appears normal. Stomach bubble is identified and partially distended. Nasal bone appears normal. Fetal limbs appear normal."

5. At this juncture it would be appropriate to take into

consideration the relevant provisions of the Medical Termination of

Pregnancy Act, 1971('MTP Act') and the Medical Termination of

Pregnancy Rules, 2003. Section 3 of the MTP Act is being

reproduced 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) 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.

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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 the 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 he 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 maybe, 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 Gynaecologist;

(b) a Paediatrician;

(c) a Radiologist or Sonologist; 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

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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."

5.1. It is clear from the perusal of Section 3 of the MTP Act that

Section 3(2) provides for two categories of cases in which a

pregnancy can be terminated by a registered medical practitioner

subject to the conditions mentioned therein. These categories are

based on the length of the pregnancy i.e., a.) upto 20 weeks; b.)

more than 20 weeks but up to 24 weeks. However, the pregnancy

in the present case has already crossed the period of 24 weeks,

thus, the case of petitioner no.3 does not fall under Section 3 (2)

(A) and (B). Section 3(2B) provides that in a case where

termination is necessitated by the diagnosis of any substantial

foetal abnormalities diagnosed by a medical board, the provisions

of Section 3(2) relating to the length of the pregnancy shall not

apply. Thus, as per Section 3(2B) even if the length of pregnancy

is of more than 24 weeks, termination of pregnancy may be done

if the Medical Board has diagnosed any substantial foetal

abnormalities which necessitates such termination of pregnancy.

5.2. Section 5 of the MTP Act is being reproduced as under:

"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, (6 of 10) shall not apply to the termination of a pregnancy by a

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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.

(2) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), the termination of pregnancy by a person who is not a registered medical practitioner shall be an offence punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years under that Code, and that Code shall, to this extent, stand modified.

(3) Whoever terminates any pregnancy in a place other than that mentioned in section 4, shall be punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years.

(4) Any person being owner of a place which is not approved under clause (b) of section 4 shall be punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years.

Explanation 1.--For the purposes of this section, the expression "owner" in relation to a place means any person who is the administrative head or otherwise responsible for the working or maintenance of a hospital or place, by whatever name called, where the pregnancy may be terminated under this Act.

Explanation 2.--For the purposes of this section, so much of the provisions of clause (d) of section 2 as relate to the possession, by registered medical practitioner, of experience or training in gynaecology and obstetrics shall not apply."

A bare perusal of Section 5(1) makes it evident that the

provisions of Section 3(2) as relate to the length of the pregnancy

and the opinion 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, in good faith, forms an

opinion that the termination of such pregnancy is immediately

necessary to save the life of the pregnant woman.

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5.3. This Court also takes into consideration Rule 3A of the

Medical Termination of Pregnancy Rules, 2003 ('MTP Rules') which

is being reproduced as under:

"3A. Powers and functions of Medical Board.-- For the purposes of section 3,--

(a) the powers of the Medical Board shall be the following, namely:-

(i) to allow or deny termination of pregnancy beyond twenty-four weeks of gestation period under sub-

section (2B) of the said section only after due consideration and ensuring that the procedure would be safe for the woman at that gestation age and whether the foetal malformation has substantial risk of it being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped;

(ii) co-opt other specialists in the Board and ask for any additional investigations if required, for deciding on the termination of pregnancy,

(b) the functions of the Medical Board shall be the following, namely:

(i) to examine the woman and her reports, who may approach for medical termination of pregnancy under sub-section (2B) of section 3;

(ii) provide the opinion of Medical Board in Form D with regard to the termination of pregnancy or rejection of request for termination within three days of receiving the request for medical termination of pregnancy under sub-section (2B) of section 3;

(iii) to ensure that the termination procedure, when advised by the Medical Board, is carried out with all safety precautions along with appropriate counselling within five days of the receipt of the request for medical termination of pregnancy under sub-section (2B) of section 3."

Thus, Rule 3A of the MTP Rules provides for the power and

functions of Medical Board for the purpose of Section 3 of the MTP

Act. Rule 3A(a)(i) provides for the power of the Medical Board to

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either allow or deny termination of pregnancy beyond 24 weeks of

gestation period under Section 3(2B) of the Act, however, such

power can be exercised after due consideration and ensuring that:

(I) the procedure would be safe for the woman at such gestation

age, and (II) when foetal malformation has substantial risk of it

being incompatible with life, or (III) if the child is born it may

suffer such physical or mental abnormalities to be seriously

handicapped.

5.4. Thus, the position of law which emerges from the conjoint

reading of Sections 2, 3, 5 of the MTP Act and Rule 3A of the MTP

Rules is that the termination of pregnancy can be allowed in cases

where the gestation period/pregnancy has crossed the mark of 24

weeks, if:

(i) There is diagnosis of any substantial foetal abnormalities by a

Medical Board or that the foetal malformation has substantial risk

of it being incompatible with life and the procedure would be safe

for the woman at that gestation age, or

(ii) The registered medical practitioner, in good faith, forms an

opinion that termination of pregnancy is immediately necessary to

save the life of the pregnant woman/or of grave injury to the

mental or physical health.

6. In the present case, the Medical Board has opined that the

petitioner is pregnant and foetus is well developed, having the

gestation age of 31 weeks 4 days. The report of the Medical Board

does not indicate any foetal abnormality. Further, the Medical

board has not opined that termination of pregnancy is immediately

necessary to save the life of the petitioner or the pregnancy shall

cause grave injury to the petitioner, physically or mentally. Thus,

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upon perusal of the report submitted by the Medical Board, it is

clear that the case of the petitioner does not fall under the

provisions of law which have been enumerated in the preceding

paragraph of this judgment so as to allow termination of

pregnancy, which is beyond 24 weeks.

7. Therefore, in view of the above, this Court is not inclined to

give directions for termination of the pregnancy. Accordingly, the

writ petition is disposed off with the following directions:

(i) The respondents are directed to provide the petitioner all

necessary care, nutritious food and medical attendance before and

after delivery.

(ii) The Chief Medical & Health Officer, District, Udaipur, is

directed to ensure that all medical facilities are made available to

the petitioner before and after delivery, without payment of any

fee, charges or expenses of any nature and to ensure that the

delivery takes place in a safe environment.

(iii) The privacy of the petitioner shall be maintained at all stages

and her identity shall not be disclosed in the course of

hospitalization, treatment and admission.

(iv) If the petitioner or her parents so wish, the child, on birth,

may be handed over to the Child Welfare Committee of Udaipur

and the petitioner and her parents shall fulfill all necessary

documentation and all formalities as may be so required under the

law for handing over custody of the child to the Child Welfare

Committee.