Uttarakhand High Court
Victim M vs State Of Uttarakhand And Others on 27 February, 2026
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
2026:UHC:1454
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Writ Petition No. 382 of 2026
Victim M ........ Petitioner
Versus
State Of Uttarakhand and others ........Respondents
Present:
Mr. Prince Chauhan learned legal aid counsel for the petitioner through V.C.
Mr. Tumul Nainwal, learned A.G.A with Mrs. Sweta Badola, learned Brief Holder for the
State.
Hon'ble Rakesh Thapliyal, J.
1. The instant writ petition has been preferred on behalf of
the victim M female with the following relief:-
(i) To issue a writ, order, or direction in the nature of Mandamus,
commanding the respondents to terminate the pregnancy of the
petitioner in accordance with the provisions of the Medical Termination
of Pregnancy Act, 1971, as amended by the Medical Termination of
Pregnancy (Amendment) Act, 2021, pursuant to the application filed by
the mother of the Petitioner before the learned special Judge
(POCSO)/Additional District & Sessions Judge, Dehradun.
(ii) To issue a writ, order or direction in the nature of Mandamus,
commanding the respondents to constitute a duly authorized State
Medical Board in terms of the provisions of the Medical Termination of
Pregnancy Act, 1971, as amended by the Medical Termination of
Pregnancy (Amendment) Act, 2021, for the purpose of examining the
petitioner and submitting its opinion regarding the medical termination
of her pregnancy within a time-bound period, and thereafter to permit
termination of the pregnancy in accordance with the opinion of the said
Medical Board and in the interest of justice.
2. It is argued by the learned counsel for the petitioner that
the petitioner is minor and a victim of an incident and now she
is pregnant of 28 weeks and as such respondent be directed to
terminate the pregnancy of the petitioner in accordance with
the provisions of Medical Termination of Pregnancy Act, 1971,
as amended by the Medical Termination of Pregnancy
(Amendment) Act, 2021. On the previous date vide order dated
25.02.2026 the learned A.G.A informed to this Court that the
Medical Board 12 members has already been constituted and
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today Mr. Tumul Nainwal, learned A.G.A. place before this
Court the report of the Medical Board headed by Director
General of State Medical Council as a Chairman and on
pursuant of the report it reveals that the victim examined on 24
and 25 February 2026, and opined that the age of the victim is
14 years having 28 weeks pregnany and she is in high risk
pregnancy.
3. Learned counsel for the petitioner submits that in terms of
Section 3 of Medical Termination of Pregnancy Act, 1971, the
pregnancy can be terminated if the pregnancy exceed twenty
weeks but does not exceed twenty four weeks. Section 3 of the
Medical Termination of Pregnancy Act, 1971 is read as under :-
12. Sub-section (1) of Section 3 of the Act provides, that
notwithstanding anything contained in the Indian Penal Code, 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 the Act.
13. Sub-section (2) of Section 3 of the Act provides, that 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
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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 the 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 the Act to exercise such
powers and functions as may be prescribed by rules made under the
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.
4. He further submits that the Medical Termination of
Pregnancy Act, 1971, was further amended by Act No. 08 of
2021, wherein Section 3 has been amended and for sub section 2
the following sub section has been substituted which reads as
under:-
“(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.”
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5. He further placed reliance to a judgment of the Hon’ble
Apex Court in the case of A(Mother of X) vs. State of
Maharashtra & another Civil Appeal No. 5194 of 2024 decided
on 29.04.2024 wherein in para 26 and 27 Section 3 of MTP Act
has been dealt with are being reproduced as under:
“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.This court in XYZ v. State of Gujarat,11
held that the medical board or the High Court cannot refuse abortion
merely on the ground that the gestational age of the pregnancy is above
the statutory prescription. In light of the peculiar circumstances of that
case where the pregnancy was detrimental to the physical and mental
health of the pregnant person, this Court held that:
“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.
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.”
27. The powers vested under the Constitution in the High Court
and this Court allow them to enforce fundamental rights
guaranteed under Part III of the Constitution. When a person
approaches the court for permission to terminate a pregnancy, the
courts apply their mind to the case and make a decision to protect the
physical and mental health of the pregnant person. In doing so the
court relies on the opinion of the medical board constituted
under the MTP Act for their medical expertise.The court would
thereafter apply their judicial mind to the opinion of the medical
board. Therefore, the medical board cannot merely state that the
grounds under Section 3(2-B) of the MTP Act are not met. The exercise of
the jurisdiction of the courts would be affected if they did
not have the advantage of the medical opinion of the board as
to the risk involved to the physical and mental health of the pregnant
person. Therefore, a medical board must examine the pregnant
person and opine on the aspect of the risk to their physical and
mental health.”
6. In para 21 the role of RMP and medical board under the
MTP Act has also been discussed which also reads as under:-
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“21. In X v. State (NCT of Delhi),4 a three-judge bench of this Court had
recognised that the fear of prosecution among registered medical
practitioners5 is a barrier for pregnant persons6 to access safe and legal
abortions. The opinion of the RMP is decisive in matters of termination of
pregnancy under the MTP Act. The purpose of the opinion of the RMP
borrows from the legislative intent of the MTP Act which is to protect the
health of a pregnant person and facilitate safe, hygienic, and legal
abortion. 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).7 It 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.
7. In the aforesaid judgment the Apex Court dealt with part
III of the Constitution of India for enforcing the fundamental
rights which deals with the power vested under the
Constitution to the constitutional court. In this para the Hon’ble
Apex Court observed that when a person approaches the court
for permission to terminate a pregnancy, the courts apply their
mind to the case and make a decision to protect the physical
and mental health of the pregnant person and in doing so the
court relies on the opinion of the medical board constituted
under the MTP Act for their medical expertise. It has been
further observed that they apply their judicial mind to the
opinion of the medical board and furthermore the medical
board cannot merely state that the grounds under Section 3(2-B)
of the MTP Act are not met.The exercise of the jurisdiction of
the courts would be affected if they did not have the advantage
of the medical opinion of the board as to the risk involved to
the physical and mental health of the pregnant person.
Therefore, a medical board must examine the pregnant person
and opine on the aspect of the risk to their physical and mental
health.
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8. Learned counsel for the petitioner by referring the
aforesaid judgment submits that since as per the report of the
medical board the petitioner is in highrisk pregnancy, therefore,
the permission should be granted for termination of the
pregnancy. In support of his argument he further placed
reliance to judgment of the Coordinate Bench of this Court
dated 04.02.2022 in a Writ Petition No. 201 of 2022 (M/S) which
deals with a case of a victim whose pregnancy was found
twenty-eight weeks and 5 days. By referring the judgment,
learned counsel submits that the facts of this case are identical
to the facts of Writ Petition No. 201 of 2022 (M/S) wherein the
Coordinate Bench permit to terminate the pregnancy.
9. In support of his argument he also further placed reliance
to a judgment of Hon’ble Apex Court in the case of A vs. Union
of India, (2018) 14 SCC 75 wherein the permission was granted
for termination of pregnancy where the gestational age was 25-
26 weeks. Similar view has been observed by the Hon’ble Apex
Court in the case of Sarmishtha Chakrabortty and Another
vs. Union of India, (2018) 13 SCC 339, wherein the Hon’ble
Supreme Court permitted termination of the pregnancy when
the gestational age was 26 weeks. The Hon’ble Supreme Court
further in the case of Murugan Nayakkar vs. Union of India,
2007 SCC OnLine SC 1092, has also allowed medical
termination of pregnancy beyond the statutory outer limit
prescribed in the Act considering the fact that the victim was 13
years old and in trauma, even though the Board stated that
termination will have equal danger for the mother.
10. Learned counsel for the petitioner submits that the
petitioner admittedly is the victim under the POCSO Act and
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there is a right to termination pregnancy subject to the
condition as enumerated under the provisions of the MTP Act.
11. Mr. Tumul Nainwal, the learned A.G.A. also submits that
as per the report of Medical Board since the victim is only 14
years old and is in high risk pregnancy, therefore, the
permission can be granted for termination of pregnancy.
12. After hearing the submissions advanced by the learned
counsel for the parties and after gone through with the
judgment as relied upon by the petitioner as well as the report
of Medical Board, this Court is of the firm opinion that if the
petitioner is compelled to continue with her pregnancy, it
would infringe her life to live with human dignity, guaranteed
under Article 21 of the Constitution of India. Therefore, in the
present case, this Court is of the view it would be appropriate
in the interest of justice to permit the petitioner to undergo
medical termination of her pregnancy under the provisions of
the Act with the following directions: –
(i) The medical termination of pregnancy of the
petitioner who is minor and the victim should be
carried out by a senior most Gynecologist under the
guidance of members of the Medical Board within 48
hours from today. The learned A.G.A. Mr. Tumul
Nainwal, shall inform today itself to the Chief Medical
Officer, Dehradun.
(ii) During the procedure of medical termination, if the
doctors find that there is any risk to the life of the
petitioner, the doctors and members of the board have a
discretion to cancel the said procedure.
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(iii) The Medical Board on completion of the procedure
of medical termination of pregnancy shall maintain
complete record and shall collect tissue and blood sample
of the foetus for conducting DNA and other tests.
(iv) If the child is born alive, the Chief Medical Officer,
Dehradun, the respondent no.3 as well as Child Welfare
Committee, Dehradun, will do the needful in accordance
with law. Child Welfare Committee Dehradun though is
not the respondents but the learned A.G.A. and the
counsel for the petitioner shall inform about this direction
to the Child Welfare Committee, Dehradun, today itself.
13. Since the order is dictated in the open court and the Holi
vacations are starting from tomorrow, in such an eventuality,
the learned counsel for the petitioner and the learned A.G.A
shall immediately inform to the Chief Medical Officer,
Dehradun, to proceed with the medical termination of
pregnancy by referring the victim to the higher centre of AIIMS
Rishikesh. Mr. Tumul Nainwal learned A.G.A. and learned
counsel for the petitioner shall immediately inform the Director
of AIIMS Rishikesh about these directions, so that,the Director
AIIMS Rishikesh may make necessary arrangements, and depute
immediately a Gynecologist today itself without waiting the
copy of this order and the Chief Medical Officer, Dehradun, the
Child Welfare Committee, Dehradun as well as the members of
the Medical Board including the Director of AIIMS Rishikesh
shall comply the communication of the learned A.G.A. Mr.
Tumul Nainwal who will sent the letter to all the officials today
itself. In addition to this the Secretary of High Court State Legal
Services Committee is also directed to issue necessary
instructions to the Chief Medical Officer, Dehradun as well as
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the Director of AIIMS Dehradun with a request to comply the
directions forthwith. All the expenses shall borne by the State.
All the officials to whom the directions have been issued shall
follow and comply the letter issued by Mr. Tumul Nainwal,
learned A.G.A. for the State forthwith.
14. Subject to the observations and directions as above, the
writ petition is disposed of finally.
15. Registry is directed to send the copy of this order to all
the officials to whom the directions has been issued.
(Rakesh Thapliyal,J.)
27.02.2026
Nahid
9
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