Madhya Pradesh High Court
Prosecutrix X vs The State Of Madhya Pradesh on 27 June, 2025
Author: Vishal Mishra
Bench: Vishal Mishra
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 27th OF JUNE, 2025
WRIT PETITION No. 24378 of 2025
PROSECUTRIX X
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Swapnil Ganguly - Deputy Advocate General for the State.
ORDER
In pursuance to the letter addressed to the Registrar General of this
Court dated 24.06.2025 by Third Additional Sessions Judge (Special Judge,
POCSO Act), District Sehore, M.P. seeking permission for termination of
pregnancy of a rape victim who was a minor aged about 13 years, cognizance
was taken and the letter was treated as suo moto writ petition in pursuance to
the directions given under the signatures of the Hon’ble Acting Chief Justice.
The writ petition came up for consideration before this Court.
2. From the perusal of the letter, it is seen that the victim was having
pregnancy of more than 24 weeks. The family is very poor and ignorant and
after giving information to the police department the said letter was sent by
the Third Additional Sessions Judge, District Sehore to the Registrar General
of this Court.
3. The learned Deputy Advocate General appearing before this Court has
apprised the Court with respect to the opinion given by a Medical Board of
Doctors for termination of pregnancy of the petitioner. The Medical Board
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comprising of seven Doctors was constituted who were to assess the case of
the petitioner. The Medical Board gave its report on 23.06.2025 observing as
under :
“The Gestational age of the fetus is 24 weeks 5 days
which is more than the permissible gestational age (24 week)
for medical termination of pregnancy hence medical
termination cannot be performed as per MTP Act amendment
2021. In case of permission or order by Honorable court such
termination can be performed with all the explained risk of
anticipated and unanticipated complications related to
termination of such high risk teenage pregnancy. Termination
of pregnancy at this gestational age and continuation of
pregnancy, both carries risk of complications.
4. From the perusal of the report, it is seen that the POCSO survivor is
aged about 17 years 3 months as on 23/06/2025 (As per Aadhar) and she is
having pregnancy of 24 weeks 5 days as on 23/06/2025. It was specifically
pointed out that in case of permission or order by the Court such termination
can be performed with all the explained risk of anticipated and unanticipated
complications related to termination of such high risk teenage pregnancy and
the report further stated that the termination of pregnancy as well as
continuation of pregnancy at this gestational age carries risk of
complications.
5. The said report along with the other relevant documents are placed on
record. The document further contains the letter written by mother of the
victim written to SDOP Bhairuda, District Sehore. It is further evident from
the order sheet dated 20/06/2025 of the Court below that FIR bearing Crime
No.447/2024 was got registered for offence under Sections 137(2), 87, 64, 3Signature Not Verified
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of BNS, 2023 and under Section 5/6 of POCSO Act, 2012 and under Section
3(1)(Wii), 3(2)(V) of the Scheduled Caste and Scheduled Tribe (Prevention
of Atrocities) Act. The victim was brought to the hospital by the parents and
they are ready to keep the victim in case the pregnancy is terminated
apprehending the social threats.
6. It is argued by the counsel for the State that Section 3 of the Medical
Termination of Pregnancy Act, 1971 does not permit the pregnancy
exceeding 24 weeks. It is further argued that there are judgment on this issue
which was referred to the Division Bench of this Court in the case of In
Reference (Suo Motu) v. The State of Madhya Pradesh and others: W.P.
No.5184/2025 which was decided on 20.02.2025 wherein after due
consideration, the SOP has been formed which is required to be followed
upto 24 weeks and exceeding 24 weeks.
7. In the present case, the age of the fetus is exceeding 24 weeks.
Therefore, the SOP is required to be followed in the present case which is as
under:
“SOPs to be followed in case where the age
of foetus/pregnancy of survivor of sexual assault or rape or
incest is exceeding 24 Weeks:-
Whenever a case of rape is registered at any
police station, the following procedure shall be adopted:-
(i) The SHO of the said police station, on the basis of
the MLC of the victim indicating that she is pregnant and
the pregnancy is more than 24 weeks, shall forthwith forward
the victim to the concerned District Court, preferably
Special Judge/POCSO; (ii) The learned Judge of the District
Court preferably Special Judge/POCSO), regardless of anySignature Not Verified
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application for termination of pregnancy, though not
maintainable, filed before it or not, shall refer the victim to the
concerned medical officer/Board to expeditiously submit its
report, if the pregnancy of the victim can be terminated;
(iii) The District Court, preferably Special
Judge/POCSO, after obtaining the said medical report, under
intimation to the victim and her parents, directly refer such
case and report to the nearest Registry of the High Court; (iv)
The Registry of High Court, in turn, shall register
such reference as a Writ Petition under Article 226 of
the Constitution, Suo Motu, and list the matter immediately
before the concerned Bench having the roster, so that
appropriate orders regarding termination of pregnancy can be
passed by the High Court without any undue delay;
(v) If directed by the High Court that termination
of pregnancy is required then, the procedure of termination of
pregnancy will be carried out in the presence of the expert
team of 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 also other factors;
(vi) 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;
(vii) The post operative care, upto the extent required,
will be extended to the victim;
(viii) 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.”
8. Learned Deputy Advocate General appearing for the State has argued
that the Division Bench of this Court while preparing the SOP has missed to
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consider the vital aspect of the matter i.e. the termination of pregnancy after
24 weeks is not permissible. It has further failed to consider the aspect that
fetus is having a life after 6 or 7 weeks and directing for termination of
pregnancy at a delayed stage when the fetus is already alive, will create great
complications and will be having a high risk to the survivor/victim as well as
the fetus alive. Therefore, he has raised objections with respect to
terminating the pregnancy at such an advanced stage wherein the age of the
fetus is pointed out to be 24 weeks and 5 days as on 23.06.2025.
9. Heard the learned counsel for the State and perused the documents
available on record.
10. Section 3 of the MTP Act, 1971 deals with termination of pregnancy
and the relevant is 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
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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 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 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 Gynaecologist;
(b) a Paediatrician;
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(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 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 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.”
11. The Hon’ble Supreme Court in the case of A (Mother of X) v. State of
Maharashtra and another : 2024(6) SCC 327 had an occasion to deal with a
similar issue and has held that as under:-
“28. 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 riskSignature Not Verified
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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.
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 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- 2024 [A v. State of Maharashtra, 2024 SCC
OnLine SC 608] . 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.
30. Moreover, we are conscious of the fact that the decision to
terminate pregnancy is one which a person takes seriously.
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The guidelines to terminate pregnancy as well as the scheme of
the MTP Act show the seriousness attached to the well-being
of the pregnant person throughout the process envisaged under
the MTP Act. Change in the opinion of the Medical Board
may cause undue trauma and exertion to a pregnant person
whose mental health is understandably under distress. While
we understand the need for a Medical Board to issue a
clarificatory opinion based on the facts and circumstances of
each case, the board must explain the reasons for the issuance
of the clarification and, in particular, if their opinion has
changed from the earlier report. Pregnant persons seeking
termination of pregnancy seek predictability for their future.
The uncertainty caused by changing opinions of the Medical
Board must therefore balance the distress it would cause to the
pregnant person by providing cogent and sound reasons.”
12. The Hon’ble Supreme Court in X v. Principal Secretary, Health and
Family Welfare Department, Government of NCT of Delhi, 2023 (9) SCC
433 had an occasion to consider the constitutional values animating the
interpretation of MTP Act and Rules and with the Right to Reproductive
Autonomy of a woman. The Supreme Court held that the MTP Act is an aid
to interpretation understanding injury to mental health and held as under:-
“64. When interpreting a sub-clause or part of a statutory
provision, the entire section should be read together with
different sub-clauses being a part of an integral whole.
[Balasinor Nagrik Coop. Bank Ltd. v. Babubhai Shankerlal
Pandya, (1987) 1 SCC 606; Madanlal Fakirchand Dudhediya
v. Shree Changdeo Sugar Mills Ltd., 1962 SCC OnLine SC 65
: 1962 Supp (3) SCR 973 : AIR 1962 SC 1543] In terms of
Section 3(2)(b) of the MTP Act, not less than two RMPs must,
in good faith, be of the opinion that the continuation of the
pregnancy of any woman who falls within the ambit of Rule 3-Signature Not Verified
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B would involve : (i) a risk to her life; (ii) grave injury to her
physical health; or (iii) grave injury to her mental health.
Alternatively, not less than two RMPs must, in good faith, be
of the opinion that there is a substantial risk of the child
suffering from a serious physical or mental abnormality, if
born. Women who seek to avail of the benefit under Rule 3-B
of the MTP Rules continue to be subject to the requirements of
Section 3(2) of the MTP Act.
65. One of the grounds on the basis of which termination of
pregnancy may be carried out is when the continuance of a
pregnancy would involve risk of injury to the mental health of
the woman. The expression “grave injury to her physical or
mental health” used in Section 3(2) is used in an overarching
and all-encompassing sense. The two Explanations appended
to Section 3(2) provide the circumstances under which the
anguish caused by a pregnancy may be presumed to constitute
a grave injury to the mental health of a woman.
66. Courts in the country have permitted women to terminate
their pregnancies where the length of the pregnancy exceeded
twenty weeks (the outer limit for the termination of the
pregnancy in the unamended MTP Act) by expansively
interpreting Section 5, which permitted RMPs to terminate
pregnancies beyond the twenty-week limit when it was
necessary to save the life of the woman. In X v. Union of India
[X v. Union of India, (2017) 3 SCC 458] , Mamta Verma v.
Union of India [Mamta Verma v. Union of India, (2018) 14
SCC 289], Meera Santosh Pal v. Union of India [Meera
Santosh Pal v. Union of India, (2017) 3 SCC 462], Sarmishtha
Chakrabortty v. Union of India [Sarmishtha Chakrabortty v.
Union of India, (2018) 13 SCC 339] , this Court permitted the
termination of post twenty-week pregnancies after taking into
account the risk of grave injury to the mental health of a
pregnant woman by carrying the pregnancy to term.
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67. The grounds for approaching courts differ and include
various reasons such as a change in the circumstances of a
woman’s environment during an ongoing pregnancy, including
risk to life, [A v. Union of India, (2018) 14 SCC 75; X v.
Union of India, (2017) 3 SCC 458; Meera Santosh Pal v.
Union of India, (2017) 3 SCC 462; Tapasya Umesh Pisal v.
Union of India, (2018) 12 SCC 57; Mamta Verma v. Union of
India, (2018) 14 SCC 289] risk to mental health, [X v. Union
of India, (2017) 3 SCC 458; Meera Santosh Pal v. Union of
India, (2017) 3 SCC 462; Sarmishtha Chakrabortty v. Union of
India, (2018) 13 SCC 339; Mamta Verma v. Union of India,
(2018) 14 SCC 289; Z v. State of Bihar, (2018) 11 SCC 572 :
(2018) 2 SCC (Cri) 675] discovery of foetal anomalies, [A v.
Union of India, (2018) 14 SCC 75; Sarmishtha Chakrabortty v.
Union of India, (2018) 13 SCC 339; Tapasya Umesh Pisal v.
Union of India, (2018) 12 SCC 57; Mamta Verma v. Union of
India, (2018) 14 SCC 289] late discovery of pregnancy in case
of minors and women with disabilities, [X v. Union of India,
(2020) 19 SCC 806] and pregnancies resulting from sexual
assault or rape. [Z v. State of Bihar, (2018) 11 SCC 572 :
(2018) 2 SCC (Cri) 675; X v. Union of India, (2020) 19 SCC
806] These are illustrative situations thrown up by cases which
travel to the court. Although the rulings in these cases
recognised grave physical and mental health harms and the
violation of the rights of women caused by the denial of the
option to terminate unwanted pregnancies, the relief provided
to the individual petitioner significantly varied.
68. The expression “mental health” has a wide connotation and
means much more than the absence of a mental impairment or
a mental illness. The World Health Organisation defines
“mental health” as a state of “mental well-being that enables
people to cope with the stresses of life, realise their abilities,
learn well and work well, and contribute to their community”.
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[World Health Organisation, “Promoting Mental Health:
Concepts, Emerging Evidence, Practice (Summary Report)”
(2004).] The determination of the status of one’s mental health
is located in one’s self and experiences within one’s
environment and social context. Our understanding of the term
“mental health” cannot be confined to medical terms or
medical language, but should be understood in common
parlance. The MTP Act itself recognises the need to look at
the surrounding environment of the woman when interpreting
injury to her health. Section 3(3) states that while interpreting
“grave injury to her physical or mental health”, account may
be taken of the pregnant woman’s actual or reasonably
foreseeable environment. The consideration of a woman’s
“actual or reasonably foreseeable environment” becomes
pertinent, especially when determining the risk of injury to the
mental health of a woman.”
13. If the aforesaid principles are applied to the present facts and
circumstances of the case it is seen that the survivor is a rape victim. She is a
minor aged about 13 years. The Medical Board of experts consisting of one
Representative Superintendent, two Gynaecologists, one General Surgery,
one Pediatrics, one Pathology and one Radiologist, after examining the
survivor have opined that the survivor’s pregnancy can be terminated with
extreme risk. The risk factor is explained to the victim as well as the parents
and they have given the consent for terminating the pregnancy. The Hon’ble
Supreme Court has permitted for termination of pregnancy in cases where
the fetus have exceeded the age of 30 weeks. The same was followed by the
Division Bench of this Court in the case of Victim X Vs. The Superintendent
of Police Department, Bhopal (W. A. No.1078/2024) decided on 09.05.2024.
In the instant case also the medical experts suggests that the pregnancy is a
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high risk pregnancy. There is high risk in both the conditions i.e. carrying
pregnancy to the term and in terminating the pregnancy.
14. Considering the overall facts and circumstances of the case as well as
the medical opinion given by the body of experts, this Court deems it
appropriate to allow this petition permitting 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 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 also other 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 her.
(iii) The post operative care up to the extent required, will
be extended to the petitioner. It will be the duty of the State
Government to take care of the child, if born alive.
(iv) The doctors will also ensure that a sample from the
fetus is protected for DNA examination and as and when
required will be handed over to the prosecution for using in the
criminal case itself.
(v) A specialized team of Doctors shall take a decision as to
when to terminate the pregnancy. All necessary care and
caution shall be taken by the Doctors while carrying out the
procedure for termination of the pregnancy.”
15. The record indicates that the complaint was made with respect to the
incident said to have taken place on 18/09/2024 alleging therein that the
victim was kidnapped by some unknown person. She was recovered on
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02/02/2025 by the Police Authorities from the possession of Arbaz Khan S/o
Naushad Khan @ Guddu Khan and her custody was handed over to the
parents. The Police Authorities investigated the matter and prepared the
charge-sheet on 25/02/2025 which is reflected from the document dated
16/06/2025, a letter written by SDOP to the Special Judge, District Sehore.
The Police Authorities have filed the charge-sheet in Crime No.447/2024 for
offence under Sections 137(2) of BNS, Section 67, 87 of BNS, Sections 3(1)
(w)(ii), 3(2)(v) of SC/ST Act and under Section 5/6 of POCSO Act. This
goes to show that the Police Authorities during investigation must have got
the victim medically examined and only thereafter the offence under Section
67, 87 of BNS, Sections 3(1)(w)(ii), 3(2)(v) of SC/ST Act and under Section
5/6 of POCSO Act were enhanced. The charge-sheet was prepared on
25/02/2025 and was filed on 28/03/2025 before the Court. Then why the
pregnancy test of the victim was not carried out at the relevant time. It had
been a condition that the pregnancy test was carried out at the relevant time,
then the factum of victim being pregnant could have been brought to the
notice of parents initially and if they were willing to get the pregnancy
terminated at the initial stage itself, the same would have reduced the
complications and risk to life of victim.
16. Generally it is seen that when the application seeking termination of
pregnancy is moved by the parents when they came to know about the
factum of pregnancy, the pregnancy is at the advanced stage. In the present
case also, the application which was forwarded to the Special Judge seeking
termination of pregnancy was submitted at a later stage i.e. on 16/06/2025.
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17. Under these circumstances, this Court deems it appropriate to direct the
Authorities that as soon as they take the victim for medical examination in
cases of alleged rape, they should get the pregnancy test of the victim carried
out. These directions are issued taking into consideration the interest of the
victim as well as the fact that if the victim and the parents are willing to get
the pregnancy terminated, then it will be on the safer side to get the
pregnancy terminated at the earliest stage.
18. Let the aforesaid direction be sent to the Director General of Police,
State of Madhya Pradesh who shall ensure circulation of said directions to all
the concerning Superintendent of Police of respective districts.
19. With the aforesaid observations, this petition is allowed and disposed
off.
(VISHAL MISHRA)
JUDGE
Shbhnkr
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