Rajasthan High Court – Jodhpur
Urn: Cw / 20116U / 2026Xxx vs The State Of Rajasthan … on 22 May, 2026
[2026:RJ-JD:25455]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 11023/2026
Minor Victim "S" through her Natural Guardian
----Petitioner
Versus
1. The State Of Rajasthan, Through The Principal Secretary,
Department Of Medical And Health Services, Government
Secretariat, Jaipur.
2. The Chief Medical And Health Officer, District Sirohi.
3. The Superintendent, Sub District Hospital (Sdh), Abu
Road, District Sirohi.
4. The Superintendent Of Police, District Sirohi.
----Respondents
For Petitioner(s) : Ms. Sapna Vaishnav
For Respondent(s) : Mr. Sher Singh Rathore for Mr. NS
Rajpurohit, AAG
HON'BLE MR. JUSTICE MUKESH RAJPUROHIT
Order
22/05/2026
1. The instant writ petition under Article 226 of the Constitution
of India has been filed by the petitioner seeking a direction to
terminate the pregnancy of Ms. “S” (aged about 16 years), a
minor victim of rape, under Sections 3 and 5 of the Medical
Termination of Pregnancy Act, 1971.
2. Bereft of elaborate details, the brief facts necessary for
disposal of the instant writ petition are as under :-
2.1. The petitioner/grandfather lodged a complaint alleging
therein that his minor granddaughter “S” used to graze goats near
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[2026:RJ-JD:25455] (2 of 20) [CW-11023/2026]Panduri River area, where the accused, who was known to the
victim, forcibly committed sexual intercourse with her against her
will and further threatened her with death in case she disclosed
the incident to anyone. Owing to fear, intimidation and social
vulnerability, the victim remained silent and could not narrate the
incident immediately to her family members. Consequently, FIR
came to be registered for offences under Section 64(1) of the BNS
and Sections 3, 4, 5(j)(ii) and 6 of the POCSO Act.
2.2. It is further borne out from the record that after the victim
missed her menstrual cycle for several months, the family
members became suspicious and upon medical examination, it
was discovered that the victim had conceived and was pregnant as
a consequence of the sexual assault committed by the accused.
2.3. Considering the urgency involved in the matter, this Court
vide order dated 18.05.2026 directed constitution of a Medical
Board comprising two qualified medical specialists i.e. one
Gynaecologist and one Obstetrician in the presence of a qualified
physician.
2.4. Pursuant thereto, the report submitted by the Medical Board
constituted at Government Medical College & Affiliated Hospital,
Sirohi dated 18.05.2026 revealed that the victim was carrying a
live fetus of approximately 26 weeks and 4 days. The report
further disclosed that upon conducting blood and urine
investigations and medical examination of the victim, her
haemoglobin level was found to be 6.0 gm/dl. The Medical Board
further opined that since the pregnancy had exceeded 24 weeks,
any medical termination ought to be undertaken only at Medical
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[2026:RJ-JD:25455] (3 of 20) [CW-11023/2026]College situated at Divisional Headquarters, Jodhpur. Accordingly,
considering the complexities involved in the matter, this Court
directed the Superintendent, S.N. Medical College, Jodhpur to
forthwith constitute a Medical Board for comprehensive evaluation
of the condition of the minor victim and feasibility and
consequences of medical termination of pregnancy.
2.5. In compliance thereof, the Medical Board, S.N. Medical
College, Jodhpur submitted its report on 21.05.2026 observing
that USG conducted on 20.05.2026 was suggestive of single live
intrauterine fetus of gestational age 27 weeks and 4 days with
placenta anterior and haemoglobin level of 6.9 gm%. The Medical
Board opined that though pregnancy could be terminated, the
same carried inherent risks associated with teenage pregnancy,
severe anaemia and advanced gestational age, ICU admission and
possibility of premature newborn requiring NICU care.
2.6. Furthermore, considering the peculiar nature of the case and
keeping in mind the settled principle that a woman has autonomy
over her body, this Court vide order dated 21.05.2026 directed
learned Chief Judicial Magistrate, Sirohi to record the statement of
the minor victim “S” with regard to her willingness or
unwillingness to terminate the pregnancy.
2.7. In compliance thereof, the statement of victim has been
recorded and produced before this Court along with report which
reveals that the minor victim has categorically expressed her
willingness to terminate the pregnancy. The statement of the
victim is quoted hereunder:
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[2026:RJ-JD:25455] (4 of 20) [CW-11023/2026]“मेरे साथ जबरदस्ती हुई थी इसलिए मैं यह बच्चा गिराना चाहती हूं । मैं
अपनी मरजी से यह बच्चा गिराना चाहती हूं , इसके लिए मुझे किसी ने
धमकाया या दबाव नही बनाया है । मैं अपने घर जाकर यह बच्चा गिराना
चाहती हूं , इसलिए मुझे जल्दी घर जाना है । मुझे और कुछ नही ं कहना।”
2.8. The critical period of twenty weeks, before which alone there
can be safe abortion, was over. The petitioner alleged that his
minor granddaughter was made pregnant on account of rape
committed by the accused and therefore, it is requested to refer
the petitioner’s granddaughter to the Government Hospital in
order to get the pregnancy terminated. Hence, the present writ
petition has been filed.
3. Heard learned counsel for the parties.
4. In continuation of the above facts as averred in the writ
petition, the contentions of learned counsel for the petitioner are
as under :-
4.1. It is submitted that the victim is a 16-year-old minor girl
carrying pregnancy of approximately 27 weeks as a consequence
of repeated sexual assault and rape, and therefore the present
case squarely falls within the ambit of Sections 3 and 5 of the
Medical Termination of Pregnancy Act, 1971.
4.2. It is further submitted that Explanation-I to Section 3(2) of
the Medical Termination of Pregnancy Act, 1971 statutorily
presumes that pregnancy caused due to rape constitutes grave
injury to the mental health of the victim and therefore no separate
proof of mental trauma is required in the present case. Reliance
has been placed upon the judgments of the Hon’ble Supreme
Court in X v. Union of India, (2023) 9 SCC 1; X v. Principal
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[2026:RJ-JD:25455] (5 of 20) [CW-11023/2026]Secretary, Health and Family Welfare Department, Govt. of
NCT of Delhi, (2022) 14 SCC 1 and Suchita Srivastava v.
Chandigarh Administration, (2009) 9 SCC 1 to contend that
reproductive autonomy, dignity and bodily integrity to a woman
are integral facets of Article 21 of the Constitution of India.
4.3. It is also submitted that despite registration of FIR on
08.05.2026 and preparation of Medico Legal Report on 11.05.2026
disclosing the pregnancy, however, no immediate steps were taken
by the respondent authorities for medical termination of
pregnancy of victim and the delay on the part of the authorities
has brought the victim to the threshold of the statutory limit under
the Medical Termination of Pregnancy Act, thereby jeopardising
her constitutional and statutory rights.
4.4. It is further contended that there exists a serious systemic
lapse inasmuch as no mandatory protocol for pregnancy testing in
POCSO cases has been framed by the State. Reliance has been
placed upon the judgments in State of Karnataka v. Shivanna
Tarkari, (2014) 8 SCC 913 and Nipun Saxena v. Union of
India, (2019) 2 SCC 703 to submit that pregnancy testing and
medical examination of minor rape victims ought to be conducted
without delay and therefore appropriate directions deserve to be
issued to the State for framing a Standard Operating Procedure
mandating pregnancy testing within 24 hours of registration of FIR
in POCSO cases.
4.5. It is submitted that the victim belongs to a socio-
economically marginalised family and compelling her to continue
the unwanted pregnancy arising out of rape would irreparably
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[2026:RJ-JD:25455] (6 of 20) [CW-11023/2026]
prejudice her dignity, education, rehabilitation and future
prospects in violation of her rights guaranteed under Article 21 of
the Constitution of India.
4.6. It is further submitted that if medical termination of
pregnancy is not allowed, the respondents be directed to ensure
that all necessary hospital facilities, medical care, nutritional
support and psychological assistance are provided to the victim
and suitable compensation be awarded to the petitioner and the
minor victim under the provisions of the Rajasthan Victim
Compensation Scheme, 2011.
5. Per contra, Mr. Shersingh, associate to learned AAG
appearing on behalf of respondent authorities has submitted
following arguments :-
5.1. It is contended that in the facts and circumstances of the
case, the termination ought not to be permitted. However, while it
is recognised that a woman possesses autonomy over her own
body, the Court, in matters of this nature, is also required to adopt
a holistic approach, taking into consideration the medical reports,
the willingness of the victim, and the woman’s bodily autonomy.
6. Having considered the submissions advanced by learned
counsel for the parties, perused the material available on record
as well as the reports submitted by the Medical Boards constituted
under the directions of this Court and the statement of the minor
victim ‘S’ recorded by CJM, Sirohi, this Court finds that the victim
is a minor girl aged about 16 years and the pregnancy in question
is admittedly a consequence of sexual assault.
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[2026:RJ-JD:25455] (7 of 20) [CW-11023/2026]
6.1. It is not disputed that FIR has been registered for offences
under the provisions of the POCSO Act and the Bharatiya Nyaya
Sanhita. Explanation-I to Section 3(2) of the Medical Termination
of Pregnancy Act, 1971 clearly provides that where pregnancy is
alleged to have been caused by rape, the anguish caused by such
pregnancy shall be presumed to constitute grave injury to the
mental health of the pregnant woman. Furthermore, learned
counsel for the petitioner has drawn attention of this Court
towards the statement of the minor victim “S” recorded under
Section 164 Cr.P.C., wherein she has categorically stated that the
pregnancy in question is a consequence of rape committed by the
accused.
6.2. Recently, the Hon’ble Supreme Court in A (Mother of X) vs.
State of Maharashtra & Ors., SLP (Civil) No.4774/2026 has
reiterated that reproductive autonomy, bodily integrity, decisional
privacy and dignity of a woman form integral facets of Article 21 of
the Constitution of India and that no rape survivor can be
compelled to continue with an unwanted pregnancy against her
wishes. The relevant portion is reproduced herein as:
“16. We are also not on the question whether the relationship was consensual
or whether it was a case of sexual assault although a criminal complaint has
been lodged by the appellant in January 2026. That is not the issue to be
considered in the present case. Ultimately, the denominator is the fact that
the child to be born is not out of a wedlock and secondly, the mother to be of
the child does not want to bear such a child. If the interest of the mother is to
be taken note of, then her reproductive autonomy must be given sufficient
emphasis. The court cannot compel any woman, much less a minor child, to
complete her pregnancy if she is otherwise not intending to do so; that would
be more traumatic for a minor such as the appellant’s daughter in the instant
case.
17. In this regard we reiterate what has been observed by one of us
(Nagarathna, J) in X vs. Union of India & Another, I.A. No.211690 of 2023(Uploaded on 22/05/2026 at 05:50:19 PM)
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[2026:RJ-JD:25455] (8 of 20) [CW-11023/2026]in M.A. No.2157 of 2023 in Writ Petition (Civil) No.1137 of 2023 dated
11.10.2023 as under:
“5. In this context, it would be necessary to reiterate the three
Judge Bench Judgment of this Court in X vs. Health & Family
Welfare Department, 2022 SCC OnLine SC 1321, authored by Dr.
Justice D.Y. Chandrachud, presently the Chief Justice of India, of
which paragraphs 99, 101 and 102 read as under: “99. The ambit
of reproductive rights is not restricted to the right of women to
have or not have children. It also includes the constellation of
freedoms and entitlements that enable a woman to decide freely on
all matters relating to her sexual and reproductive health.
Reproductive rights include the right to access education and
information about contraception and sexual health, the right to
decide whether and what type of contraceptives to use, the right to
choose whether and when to have children, the right to choose the
number of children, the right to access safe and legal abortions,
and the right to reproductive healthcare. Women must also have
the autonomy to make decisions concerning these rights, free from
coercion or violence.
xxx
101. To this, we may add that a woman is oftenenmeshed in
complex notions of family, community, religion, and caste. Such
external societal factors affect the way a woman exercises
autonomy and control over her body, particularly in matters
relating to reproductive decisions. Societal factors often find
reinforcement by way of legal barriers restricting a woman’s right
to access abortion. The decision to have or not to have an abortion
is borne out of complicated life circumstances, which only the
woman can choose on her own terms without external interference
or influence. Reproductive autonomy requires that every pregnant
woman has the intrinsic right to choose to undergo or not to
undergo abortion without any consent or authorization from a third
party.
102. The right to reproductive autonomy is closely linked with
the right to bodily autonomy. As the term itself suggests, bodily
autonomy is the right to take decisions about one’s body. The
consequences of an unwanted pregnancy on a woman’s body as
well as her mind cannot be understated. The fetus relies on the
pregnant woman’s body for sustenance and nourishment until it is
born. The biological process of pregnancy transforms the woman’s
body to permit this. The woman may experience swelling, body
ache, contractions, morning sickness, and restricted mobility, to
name a few of a host of side effects. Further, complications may
arise which pose a risk to the life of the woman. A mere
description of the side effects of a pregnancy cannot possibly do
justice to the visceral image of forcing a woman to continue with
an unwanted pregnancy. Therefore, the decision to carry the
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[2026:RJ-JD:25455] (9 of 20) [CW-11023/2026]right to bodily autonomy and decisional autonomy of the pregnant
woman.
(underlining by me)”
6. Unwanted pregnancy as a result of failure in a
familyplanning method, even during the period of Lactational
Amenorrhea as in the instant case or as a result of sexual assault
results in the same consequence. The pregnant lady is not
interested in continuing with the pregnancy. In such a situation
whether the child to be born is viable or if the child would be a
healthy child are not relevant considerations. What is to be focused
upon is, whether, the pregnant lady intends to give birth to a child
or not. This is what has been emphasized by this Court in the
aforesaid three Judge Bench decision which is binding on this
Bench.
7. It may not be out of place to note that a foetus isdependent
on the mother and cannot be recognized as an individual
personality from that of the mother as its very existence is owed to
the mother. It would be incongruous to conclude that the foetus
has a separate identity from the mother and in spite of the physical
or mental health of a mother being under threat, she will have to
continue her pregnancy until the foetus is born which would
endanger her delicate health. Such a position is contrary to Article
21 and 15(3) of the Constitution of India which recognize the right
to life and liberty and particularly those of a woman.
One cannot also lose sight of the fact that reproduction is
unique to women and throughout her life, a woman goes through
the process of menstruation, pregnancy, delivery, post-delivery
phase and ultimately menopause. As stated above, right to
reproductive health being a woman’s human right would also
include the right to an abortion. Otherwise, a woman who is forced
into an unwanted pregnancy would experience physical and
mental trauma and to endure the pregnancy which may continue in
the post-natal period owing to which she would have the burden of
bringing up an additional child and consequently, may lose out on
other opportunities in life including right to employment and
contribution to the income of the family.
xxx
This is not to say that in every case where there is an unwanted
pregnancy, this Court or the High Courts ought to exercise its
jurisdiction and order for termination. It would depend on the facts
of each case.
But in this case, when the petitioner is determined to
terminate her pregnancy and has completely detached herself from
the fact that she would be giving birth to her child shortly, she
cannot be made worse off by this Court by declining to grant her
the relief she has sought and thereby forcing her to continue with
an unwanted pregnancy.”
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[2026:RJ-JD:25455] (10 of 20) [CW-11023/2026]
18. In the circumstances, we accept the submissions made by learned
counsel for the appellant.
19. We allow this appeal and set aside the order dated 27.01.2026 passed
by the High Court of Judicature at Bombay in Writ Petition (L) No.2388 of
2026. 20. We direct that the appellant’s daughter is permitted to undergo
medical termination of pregnancy.”
6.3. Similarly, the Hon’ble Apex Court in S vs. Union of India &
Ors., SLP (Civil) No.14454/2026 while observing that
Constitutional Courts, while exercising jurisdiction under Article
226 or Article 32 of the Constitution of India, are required to
prioritise the welfare, dignity and reproductive autonomy of the
pregnant woman, particularly where the pregnancy is unwanted
and has arisen out of sexual assault, has held that:
“11. The Court must, while exercising jurisdiction under Article 226 or
Article 32 of the Constitution of India, therefore, prioritize the best interests
of the minor mother-to-be in the present case, over the procedural and
statutory limitations under the MTP Act. If the interest and welfare of the
mother-to-be are to be given due consideration, her reproductive autonomy
must be accorded the highest importance. This is particularly having regard
to the facts and circumstances of the present case.
11.1 The right to make decisions concerning one’s body, particularly in
matters of reproduction, is an integral facet of personal liberty and privacy
under Article 21 of the Constitution of India. This right cannot be rendered
ineffective by imposing unreasonable restrictions, especially in cases
involving minors and unwanted pregnancies, such as in the instant case.
11.2 No court ought to compel any woman and more so a minor child, to
carry a pregnancy to full term against her express will. Such compulsion
would not only disregard her decisional autonomy but could also inflict
grave mental, emotional and physical trauma in case she is compelled to give
birth. In these circumstances, denying the relief sought would compel the
minor to endure irreversible consequences. Such an approach would be
contrary to the constitutional ethos and the settled principles recognizing
reproductive choice as a fundamental right. What is of relevance is the
choice of the pregnant woman rather than the interest of an unborn child. It is
easy to say that if the pregnant woman is not interested in raising the child,
she may give away the child in adoption and therefore must be compelled
into giving birth to the child. However, that cannot be the correct approach,
particularly, in cases where the child to be born is unwanted. In such a
situation, directing the pregnant woman to give birth to the child against her
wishes and to forcefully continue her pregnancy would negate the welfare of
the pregnant woman and make it subordinate to the child yet to be born.
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[2026:RJ-JD:25455] (11 of 20) [CW-11023/2026]11.3 We find that in cases of unwanted pregnancy, often the decision to
terminate is made beyond the statutory period prescribed under the MTP Act
owing to several reasons. It is under such circumstances that Constitutional
Courts must weigh the circumstances in which a case in relation to the
welfare of the pregnant woman has to be considered ratherthan the child to
be born. In fact, under certain grounds, the MTP Act itself permits
termination of pregnancy which is therefore recognised in law. The
Constitutional Court is approached only when the statutory remedy is not
available to a party. Can the Constitutional Court then say that since the
statutory remedy is not available, no constitutional remedy would be
available. That, in our view, cannot be the approach. A lack of remedy under
a statute does not bar a constitutional remedy. The statute codifies a part of
the constitutional remedy. If a case is not covered within the four corners of a
statute then, can the constitutional relief be also denied? In our view, in such
circumstances, the Constitutional Court ought to weigh all facts and
circumstances from the lens of the party who intends to terminate the
pregnancy and is willing to undertake the medical risk, rather than
compelling her to complete the pregnancy term and give birth to an
unwanted child. If the pregnant woman carrying an unwanted pregnancy is
compelled to continue such a pregnancy, then the constitutional rights of the
pregnant woman would be breached.
11.4 Further, if the Constitutional Court adopts the view that even an
unwanted pregnancy must be continued, then instead of approaching the
Court for permission, pregnant women would visit illegal abortion centres
and secretly undergo termination of such pregnancies which would only
make such women more vulnerable and expose them to more dangerous
procedures. It is under such considerations that a Constitutional Court must
decide what is best in the interest of the pregnant woman, particularly, when
the pregnancy is unwanted as in the present case.
12. It is necessary to revisit the facts in the present case. The appellant’s
daughter is herself a minor girl of fifteen years. The pregnancy is an
unwanted pregnancy which is outside the wedlock and continuing the
pregnancy is not in the interest of the pregnant minor particularly when she
has attempted to foreclose her life on two occasions. The minor is willing to
undergo the medical risk of a termination of pregnancy. The termination of
pregnancy would be bearing in mind the long term social, economic and
emotional interest of the pregnant minor.
13. Further, the mental health of a pregnant woman carrying an unwanted
pregnancy also must be borne in mind and given its due importance. If she is
forced to continue her pregnancy and give birth the consequences would be
adverse. An unwanted pregnancy and the effect thereof on the mindset of
such a pregnant woman will also have a bearing on the child to be born. The
decision not to continue a pregnancy and to seek termination with all
attendant risks must be respected rather than compelling such a pregnant
woman to continue such a pregnancy.
14. We may usefully refer to a three-Judge Bench judgment of this Court in
X v. Health & Family Welfare Department, 2022 SCC OnLine SC 1321,
wherein it has been authoritatively held that a woman’s right to reproductive
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[2026:RJ-JD:25455] (12 of 20) [CW-11023/2026]the number of children to have, and the right to access safe and legal abortion
and reproductive healthcare. This Court recognized that the decision to
continue or terminate a pregnancy arises out of complex and deeply personal
circumstances, which only the woman herself is best placed to evaluate.
Reproductive autonomy, therefore, necessarily entails that every pregnant
woman has the intrinsic right to decide whether to undergo an abortion.
Importantly, this Court also observed that a mere clinical description of
pregnancy cannot capture the profound physical and psychological
consequences of forcing a woman to carry an unwanted pregnancy to term.
Consequently, the decision to either continue or terminate a pregnancy is
firmly rooted in the woman’s right to bodily integrity and decisional
autonomy, which are integral facets of her fundamental rights under Article
21 of the Constitution.
14.1 In the context of the present case, we may refer to the decision of A
(Mother of X) v. State of Maharashtra & Others in Civil Appeal No.827 of
2026, where, on similar facts, this Court had allowed medical termination of
pregnancy of 30 weeks of a minor girl. In that case too, the pregnancy in
question arose out of a consensual relationship, and much like the present
case, the continuation of the pregnancy was stated to be traumatic both
mentally as well as physically to the minor girl as it was an unwanted
pregnancy.
15. Thus, what is relevant is whether the pregnant woman intends to give
birth to a child or not. In the instant case, the facts of the case reveal that the
minor girl intends not to give birth.
15.1 Keeping that in view, when Constitutional Courts are approached by
unintending mothers seeking termination of pregnancy, they ought not take a
prohibitory approach. The consequence of such an approach will not be the
cessation of late-term terminations, which will happen anyway, but only their
displacement outside the law. Pregnant women may be driven to seek
termination through unregulated means, often at a greater risk to their life
and health. Thus, the unintended consequence of judicial reluctance to permit
termination beyond the statutory period reinforces the very conditions that
the MTP Act seeks to avoid, namely unsafe abortions.
15.2 Moreover, the invocation of foetal normalcy or the fact that the
pregnancy has been carried for a considerable duration as grounds to deny
termination is of no constitutional persuasiveness. These arguments proceed
on the assumptions: first, that in the absence foetal abnormality, the
continuation of pregnancy is unobjectionable, and second, that the passage of
time extinguishes the pregnant woman’s claim to decisional autonomy.
15.3 We wish to lay to rest both the above arguments. Firstly, to predicate
access to termination on the existence of foetal anomaly is to make the
exercise of a fundamental right over one’s body contingent upon pathology
of the foetus, which is not in the hands of the unintending mother. In other
words, her rights are subordinated to the condition of the foetus over which
she has no control. As a matter of constitutional principle, this cannot be
allowed. Rights are not functions of circumstance, they attach to humans for
the reason that they are free moral agents. To say that termination of
pregnancy is thinkable only in the presence of foetal defect instrumentalises
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[2026:RJ-JD:25455] (13 of 20) [CW-11023/2026]matter her will. Secondly, the passage of time does not extinguish the right to
make reproductive choices. This argument rests on the untenable
presumption that delay means acquiescence, disregarding the manifold
reasons that may account for late presentation of pregnancy including but not
limited to delayed detection due to irregular menstrual cycles or lack of
reproductive awareness, limited access to healthcare services, financial
constraints that impede timely medical consultation, and hesitation to
disclose a pregnancy coercion, abuse, or lack of familial support: all of
which may prevent earlier disclosure.
15.4 Constitutional courts cannot overlook that parties approach them in such
hard cases precisely because no effective statutory right remains available.
The absence of a legal remedy under the MTP Act is the very reason for the
court’s jurisdiction being invoked in the first instance. Therefore, to defer
mechanically to statutory limitations is to disregard the distinct role of the
Constitutional Court in protecting individual rights even when no other
statutory remedies exist. The effect of such an approach is to render the
fundamental right to bodily autonomy nugatory.
16. The High Court in the present case relied principally on the report dated
18.04.2026 of the Medical Board constituted by AIIMS and concluded that
continuation of pregnancy will entail no major danger to the physical and
mental health of the minor. We are of the view that this conclusion is not
borne out on facts of the case. The report of the Medical Board is silent on
the effect of a forced pregnancy on the psychological, emotional, and mental
state of the minor, saying only that no psychiatric disorder was revealed in
the examination of the minor. However, as we have noted, the minor girl is
said to have attempted to commit suicide on two occasions since the factum
of pregnancy was revealed to her. It cannot, therefore, be accepted that the
minor girl is unaffected in her psychological and emotional well-being
merely because no formal psychiatric disorder has been diagnosed. The
absence of a clinically diagnosed mental disorder does not negate the
presence of severe distress, trauma, or emotional turmoil. The law cannot
remain indifferent to the lived experience of the minor, whose actions clearly
reflect acute anguish and a compromised state of mental and emotional well-
being.
16.1 Further, the report of the Medical Board itself considers the minor girl
physically fit for the termination of pregnancy. That, coupled with her own
willingness to have the termination undertaken, as also the potential harm in
the event of carrying the pregnancy to term, convinces us that the request for
termination of pregnancy could not have been denied by the High Court.”
6.4. In the present case, the Medical Board constituted at S.N.
Medical College, Jodhpur has opined that though termination of
pregnancy carries certain risks owing to advanced gestational age
and severe anaemia, the same can be undertaken under expert
medical supervision. Furthermore, the victim in her statement
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[2026:RJ-JD:25455] (14 of 20) [CW-11023/2026]
recorded by the Chief Judicial Magistrate, Sirohi has unequivocally
expressed her willingness for termination of pregnancy.
6.5. Similarly, the Bombay High Court at Nagpur Bench in the
case of XYZ Minor through her natural guardian father vs.
Union of India, Writ Petition No. 3027/2025 while allowing
termination of pregnancy of 28 to 29 weeks foetus with high risk
has held that:
“14. However, we are equally required to be sensitive to the submissions of
the counsel of the petitioner that not only the victim has assented for medical
termination of pregnancy but also the parents have undertaken to furnish
high risk consent to the Authority in case if the medical termination of
pregnancy procedure is carried out. The fact remains that the Board consists
of not only the Professor of Obstetrics and Gynecology but also the
Professors of Medicine and Paediatrics. In case if the victim is required to
undergo termination of pregnancy as has been prayed, the safety protocol is
required to be followed in the matter of medical termination of pregnancy by
the Medical Team.
15. In the case in hand, if we consider the age of the victim i.e. 12 years and
5 months and the age of foetus is between 28 to 29 weeks, it is necessary that
such procedure must be carried out by the Team of the Doctors which must
be of Paediatric Surgeon, Gynaecology Surgeon, so also if possible Doctor of
Paediatric Anesthesiologist should also be made part of it.
16. We are not susceptible about safety protocol being followed, as the
learned Government Pleader has specifically assured us that safety protocol
shall be duly followed in case if this Court permits medical termination of
pregnancy.
17. In the aforesaid background and having regard to the law laid down by
the Apex Court in the aforesaid three judgments, it has to be inferred that this
Court cannot force the victim to carry her pregnancy against her wish as in
such an eventuality, the State would be stripping her of the right to determine
the immediate and long term path of her life.
18. Apart from above, we are equally required to be sensitive to the fact that
a woman can become pregnant by choice irrespective of her marital status.
However in case of unwanted or incidental pregnancy the burden invariably
falls on the pregnant woman/victim.”
6.6. Furthermore, the Allahabad High Court in Ab(2025)
through her guardian (Father) vs State of UP and Ors.,
2025:AHC:116122-DB while allowing the termination of
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pregnancy wherein there was high risk in termination of
pregnancy has held that:
“10. A Three Judge Bench of the Supreme Court in A (Mother of X) vs. State
of Maharashtra and Another, (2024) 6 SCC 327 while considering a case of
pregnancy of thirty one weeks, examined in detail the Scheme of the Medical
Termination of Pregnancy Act, 1971 (MPT Act) and observed as follows:
“21. ……… The right to abortion is a concomitant right of dignity,
autonomy and reproductive choice. This right is guaranteed under
Article 21 of the Constitution. The decision to terminate pregnancy
is deeply personal for any person. The choice exercised by a
pregnant person is not merely about their reproductive freedom but
also about their agency as recognised by this Court in X v. State
(NCT of Delhi). If is therefore imperative that the fundamental
right of a pregnant person is not compromised for reasons other
than to protect the physical and mental health of the pregnant
person.”
11. Again in para 25 of the Law Report, it was emphasized that the first and
paramount consideration is the physical and mental health of the pregnant
person. In that context, the judgement takes into consideration the relaxation
provided by the legislature under Section 3(2-B) in respect of foetal
abnormality and held that the relaxation of prescribed timeline to such cases
only prima facie appears to be unreasonable and arbitrary inasmuch as a
victim of rape is comparable to a case where the foetus is found to be
substantially abnormal. A pregnancy out of a consensual relationship cannot
be equated with a pregnancy resulting from rape. To wit:
“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,
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) 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.
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26. The report failed to form an opinion on the impact of the
pregnancy on the physical and mental health of the pregnant
person. If a pregnant person meets the condition under Section
3(2-B) of the MTP Act then there would be no need for any
permission by the courts. Therefore, whenever a pregnant person
approaches the High Court or this Court, it is imperative for the
Medical Board to opine on the physical and mental health of the
pregnant person.”
12. Further elaborating, the Bench observed that:
“29. The MTP Act has removed the restriction on the length of the
pregnancy for termination in only two instances. Section 5 of the
MTP Act prescribes that a pregnancy may be terminated,
regardless of the gestational age, if the medical practitioner is of
the opinion formed in good faith that the termination is
immediately necessary to save the life of the pregnant person.
Section 3(2-B) of the Act stipulates that no limit shall apply on the
length of the pregnancy for terminating a foetus with substantial
abnormalities. The legislation has made a value judgment in
Section 3(2-B) of the Act, that a substantially abnormal foetus
would be more injurious to the mental and physical health of a
woman than any other circumstance. In this case, the circumstance
against which the provision is comparable is rape of a minor. To
deny the same enabling provision 9 of the law would appear prima
facie unreasonable and arbitrary. The value judgment of the
legislation does not appear to be based on scientific parameters but
rather on a notion that a substantially abnormal foetus will inflict
the most aggravated form of injury to the pregnant person. This
formed the basis for this Court to exercise its powers and allow the
termination of pregnancy in its order dated 22-4-20243. The
provision is arguably suspect on the ground that it unreasonably
alters the autonomy of a person by classifying a substantially
abnormal foetus differently than instances such as incest or rape.
This issue may be examined in an appropriate proceeding should it
become necessary.”
13. In the concluding part of the judgement, the legal principle, which has
been emphasized, is that consent of a pregnant person in decisions of
productive autonomy and termination of pregnancy is paramount. Again, in
XYZ vs. State of Gujarat, 2023 SCC OnLine SC 1573, the court was faced
with a request for termination of pregnancy of 27 weeks 2 days +/- 2 weeks.
It has been held that 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. In the instant case, as noted
above, despite full session of counselling, the petitioner and her parents have
not agreed to carry pregnancy to the full term. This may be because of fear of
social stigma and/or abject poverty coupled with the fact that the crime
committed on her must have left her completely shattered both physically
and mentally.
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14. Considering the totality of facts and circumstances, the Court with heavy
heart, permits the termination of pregnancy.”
6.7. Therefore, this Court is conscious of the fact that the
pregnancy has exceeded the statutory period contemplated under
Section 3(2)(b) of the Act of 1971. However, considering the
peculiar facts and circumstances of the present case, particularly
the age of the victim, the fact that the pregnancy is a
consequence of rape, the opinion rendered by the Medical Board
and the willingness expressed by the victim, this Court is of the
considered opinion that denial of permission for medical
termination of pregnancy would result in grave injustice and
irreparable physical and mental trauma to the minor victim.
6.8. The constitutional guarantee under Article 21 of the
Constitution of India encompasses within its fold the right to
dignity, bodily integrity and reproductive autonomy. A minor rape
survivor cannot be compelled to continue with an unwanted
pregnancy merely on account of the gestational age having
crossed the statutory threshold, particularly when the victim
herself seeks such termination.
6.9. Accordingly, this Court, with a heavy heart, deems it
appropriate to allow the medical termination of pregnancy of
minor victim.
7. Consequently, the following directions are issued:
7.1. The Superintendent, S.N. Medical College & Associated
Group of Hospitals, Jodhpur shall ensure that medical termination
of pregnancy of victim “S” is undertaken forthwith by a team of
expert doctors strictly in accordance with prescribed medical
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precautions.
7.2. The respondents shall ensure that the minor victim is
provided all necessary medical facilities, including ICU care,
psychological counselling, nutritional support, blood transfusion,
post-operative care, and such further medical assistance as may
be advised by the treating doctors including blood transfusion and
medical observation for a period of 48 hours pre termination of
pregnancy, if so required in the best interest of the minor victim.
All expenses towards treatment, hospitalization, medicines,
investigations and allied medical care shall be borne by the State
Government.
7.3. The said process shall be initiated immediately after
receiving the copy of this order.
7.4. The District Magistrate, Jodhpur shall coordinate the entire
process and ensure that all ancillary expenses including travel and
stay expenses of the victim and her family are also borne by the
State Government.
7.5. In view of the pendency of criminal investigation, the
concerned hospital authorities shall preserve the foetal
tissue/foetus for the purposes of DNA profiling and other forensic
examination, if so required for the purposes of investigation and
trial.
7.6. The statement recorded by learned Chief Judicial Magistrate,
Sirohi shall be taken on record and preserved along with the
judicial record of this file.
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7.7. The guardian of the minor victim shall furnish a high-risk
consent undertaking before the concerned Medical Board and the
assent of the victim shall also be made part of the medical record.
7.8. The Rajasthan State Legal Services Authority and the
concerned District Legal Services Authority shall take appropriate
steps for extending compensation and rehabilitation benefits to
the victim under the Rajasthan Victim Compensation Scheme,
2011 in accordance with law.
7.9. Let a copy of instant order be handed over to Shri N.S.
Rajpurohit, learned AAG for onward communication and
compliance by the Balika Grah, Sirohi, District Magistrate, Jodhpur
and the Principal, S.N. Medical College, Jodhpur.
8. Furthermore, learned counsel for the petitioner has drawn
the attention of this Court to certain procedural lapses in cases
relating to medical termination of pregnancy, particularly in
matters involving minor victims, wherein such lapses have
resulted in avoidable delay in initiation and completion of the
process, thereby causing additional mental trauma to the victim.
It is submitted that the absence of a clear and time-bound
Standard Operating Procedure (SOP) in such cases often leads to
systemic delays, adversely affecting the reproductive rights and
bodily autonomy of the victim. Therefore, this Court is of the view
that the issue raised requires serious consideration for issuance of
appropriate directions and framing of a Standard Operating
Procedure to ensure expeditious handling of such sensitive
matters in future. However, having regard to the urgency involved
in the present case, this Court has at this stage, confined itself to
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the adjudication of the prayer for medical termination of
pregnancy alone.
9. Accordingly, this Court deems it proper to consider the issue
relating to formulation of SOPs and issuance of necessary
directions in this regard after hearing the learned counsel for the
parties.
10. In view of the aforesaid, the petition is admitted.
11. Since the respondents are represented through learned AAG
therefore, no need to issue notice to the respondents.
12. List this matter in the first week of July for further hearing
treating the matter as part heard.
(MUKESH RAJPUROHIT),J
285-/Jitender//-
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