PRIYANKABEN W/O SANJAYBHAI MAFATBHAI RATHOD vs STATE OF GUJARAT

R/SCR.A/15958/2026 JUDGMENT DATED: 06/11/2026
(GJHC240852392026)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 15958 of 2026

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR.JUSTICE MOOL CHAND TYAGI

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Approved for Reporting Yes No
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PRIYANKABEN W/O SANJAYBHAI MAFATBHAI RATHOD
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MS RENU VERMA(5964) for the Applicant(s) No. 1
MS. JYOTI BHATT, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE MOOL CHAND TYAGI

Date : 06/11/2026

JUDGMENT
1. The captioned petition is preferred under Article 14, 15, 21, 226
& 227 of the Constitution of India read with provisions of Medical
Termination of Pregnancy Act, 1971 and Section 528 of BNSS, 2023,
seeking the following reliefs:-
A) That Your Lordship may kindly be pleased to
dispense with any and all filing defects, looking into
the urgency of the matter;
B) That Your Lordship may kindly be pleased to admit
the matter in urgency for Medical termination of
pregnancy;
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C) That Your Lordship may kindly be pleased to quash
and set aside order dated 27/10/2026 in re CRMA
1193/2026 of the Hon'ble Sessions Judge and
Special Judge (POCSO) Anand in re FIR no.
11215002261142/2026 dated 23/10/2026, registered
with Anand Town Police station, Dist Anand, for
offences u/s 64(2)(m), 65(1), 351(2) BNS and u/s 4,
5(j), 2, 6 of the POCSO Act, to and allow Medical
Termination of Pregnancy of the daughter of the
applicant.
D) That Your Lordship may kindly be pleased to issue
appropriate writ and/or direction and/or orders to
Respondent no. 3 or any other best hospital, to
conduct the procedure of Termination of pregnancy
on the Victim (daughter of the applicant –
petitioner), with all necessary medical safeguards
and also preserve safely all samples needed and
requested by respondnet no. 2 for DNA profiling and
other evidence for trial later, in re to
11215002261142/2026 dated 23/10/2026, registered
with Anand Town Police station, Dist Anand, for
offences u/s 64(2)(m), 65(1), 351(2) BNS and u/s 4,
5(j), 2, 6 of the POCSO Act in the Interest of Law,
Justice, Equity and Good conscience;
E) That Your Lordship may kindly be pleased to issue
appropriate writ and/or direction and/or orders to
Respondent no. 2 to keep an eye on the entire
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procedure of termination of pregnancy and to collect
and safeguard and send samples collected and
preserved for further Forensic analysis, including but
not limited to DNA profiling to bring the guilt of the
accused to Justice, in re to FIR No.
11215002261142/2026 dated 23/10/2026, registered
with Anand Town Police station, Dist Anand, for
offences u/s 64(2)(m), 65(1), 351(2) BNS and u/s 4,
5(j), 2, 6 of the POCSO Act in the interest of Law,
Justice, Equity and Good conscience;
F) Your Lordship may kindly be please to direct all
respondent authorities to provide pre and post
abortion/termination of pregnancy, mental and
physical support to the Victim in re to the FIR no.
11215002261142/2026 dated 23/10/2026, registered
with Anand Town Police station, Dist Anand, for
offences u/s 64(2)(m), 65(1), 351(2) BNS and u/s 4,
5(j), 2, 6 of the POCSO Act, pending disposal of the
present Quashing Petition;
G) That Your Lordship may be pleased to pass any such
further or additional order as deemed fit and proper.
2. Issue Rule to the respondents, returnable forthwith. Learned APP
accepts and waives service of Rule on behalf of respondent No.1 –
State.
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3. Learned counsel for the petitioner submitted that the petitioner
herein is the victim of rape and aggravated penetrative sexual assault.
She further submitted that the victim is a minor aged about 14 years
and 6 months. She submitted that the Petitioner has approached the
rd
learned 3 Additional Sessions Judge & Special Judge POCSO, at Anand
seeking permission for termination of pregnancy, however, vide its order
dated 27.10.2026 passed in Criminal Misc. Application No. 1193 of
2026, the learned Trial Court rejected the said application. Being
aggrieved by the decision of the Trial Court, the Petitioner has
approached this Court. He further drew the attention of this Court to
the medical report submitted by the Medical Board of Shri. Krishna
Hospital, Karamsad, wherein it is opined that the termination of
pregnancy can be risky and mentioned gestational age of the baby as
28 weeks and four days. The report further specifies the need for
specific directions from the High Court with regard to various facets of
the pregnancy, i.e., providing comprehensive judicial directions for both
the pre and post procedure phases critical to ensuring the patient's and
child’s physical safety, psychological well-being, and legal protection. In
support of her contentions, she has placed reliance upon the judgment
rendered by the Hon’ble Apex Court in S vs. The Union of India &
th
Ors., SLP (C) No. 14454/2026, decided on 24 April, 2026 and
prayed that considering the best interest of the victim, necessary
directions be given, thereby permitting the termination of pregnancy.
4. In response, learned APP submitted that considering the facts
and circumstances of the case, an appropriate order may be passed.
5. This Court has considered the submissions advanced by the
learned counsel for the parties and has also gone through the material
available on record. Before proceeding further, it would be apposite to
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refer to the recent judgment rendered by the Hon’ble Apex Court in S
vs. The Union of India & Ors., (supra), wherein the Hon’ble Apex
Court has observed as under:-
“xxx xxx xxx
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
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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.
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 rather than 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
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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.
1.4 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
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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 autonomy includes the right to choose
whether and when to have children, 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
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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
woma 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
fetal abnormality, the continuation of pregnancy is
unobjectionable, and second, that the passage of time
extinguishes the pregnant woman’s claim to decisional
autonomy.
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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 fetus, which is not in the hands of the
unintending mother. In other words, her rights are
subordinated to the condition of the fetus 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 the pregnant
woman into a conduit who is required to sustain a
pregnancy no 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
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such an approach is to render the fundamental right to
bodily autonomy nugatory.
xxxxxx-xxx”
6. Considering the facts and circumstances of the case and having
regard to the ratio of the aforesaid judgment, I am of the view that this
Court shall decide this matter keeping in mind the best interests of the
victim girl. Hence, the instant petition deserves to be allowed and
accordingly, this Court, keeping in mind the best interests of the victim,
hereby allows the present petition and permits the medical termination
of pregnancy, subject to the safeguards and directions as detailed
below:-
1. Respondent No.3 – Medical Officer, Shri. Krishna Hospital,
Karamsad is directed to:
a) Obtain a written undertaking from the victim authorizing
her consent to conduct the procedure at her risk.
b) Upon receiving the undertaking, shall immediately
constitute a Medical Board comprising three senior-most
Gynecologists/Surgeons, along with a Physician,
Anesthetist, Radiologist, Pediatrician, obstetrician and
Psychologist, to evaluate the victim's physical and mental
health. They shall explain to the victim as well as her
guardian, about the risks involved in terminating the
pregnancy and also other factors, such as surgical and
clinical implications of terminating a pregnancy at this
stage, more particularly considering the fact that the victim
is at an advanced stage of pregnancy.
c) Proceed with the procedure on an urgent basis with the
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help of the afore experts, only upon a unanimous medical
opinion that the termination can be carried out safely
without endangering the life of the victim.
d) shall ensure that all necessary care and caution is taken by
the doctors while carrying out procedure for termination of
pregnancy. Provide all necessary medical infrastructure,
including reserving a dedicated special room for the victim
and her family, ensuring continuous psychological support
and counseling throughout her admission.
e) Preserve and seal requisite fetal tissue samples strictly in
accordance with standard medical and scientific protocols
for DNA profiling, and hand them over to the Investigating
Officer for onward transmission to the Forensic Science
Laboratory (FSL).
f) Retain the victim in the hospital for all necessary post-
operative care and observation, discharging her only after
the Medical Board certifies that she is clinically stable, fully
recovered, and fit for discharge.
2. In the event of the infant being alive at birth, the Hospital
Authorities and State are directed to:
a) Extend immediate, state of the art intensive medical care
to the newborn, either within the hospital or by arranging
an immediate transfer to a specialized facility, ensuring all
measures are taken for the infant's health and survival.
b) If the victim declines to accept the child, the State and its
relevant child welfare authorities under the Juvenile Justice
(Care and Protection of Children) Act, should assume full
legal, physical and medical responsibility.
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3. The Secretary, District Legal Service Authority is directed to:-
a) Take immediate statutory steps, in the event the family
refuses custody, to place the child under the care of a
recognized Specialized Adoption Agency in accordance with
the law and statutory adoption guidelines.
b) Process and disburse interim compensation to the minor
victim on a priority basis under the applicable Victim
Compensation Scheme upon receipt of the records from
the Investigating Officer, and take necessary measures for
the expeditious release of the final compensation.
c) Formulate and supervise a long-term rehabilitation plan for
the victim, taking into account the trauma suffered, shall
offer counseling and ensure the provision of educational
support, vocational training, and ongoing psychosocial
assistance aligned with her wishes.
4. The Investigating Officer (I.O.) is directed to:
a) Receive the sealed fetal tissue samples from the hospital
authorities and promptly transmit them under proper chain
of custody to the Forensic Science Laboratory (FSL) for
forensic DNA analysis.
b) Immediately transmit certified copies of the First
Information Report (FIR), case diary, and complete medical
records to the concerned DLSA to expedite the
determination and disbursal of victim compensation.
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5. The Principal Secretary, Department of Health and Family
Welfare, Government of Gujarat, is directed to:
a) Provide immediate nutritional, travel, and incidental
medical requirements.
b) Bear all medical expenses incurred toward the termination
procedure, in-patient stay, medication, nutritional
requirements, and complete postpartum care for both the
victim and the child for a minimum period of six months.
7. In view of the afore directions, the captioned petition stands
disposed of. R & P, if any be sent back to the learned Trial Court
concerned.
8. A Copy of this judgment shall be provided to the learned APP for
onward transmission to the concerned I.O., concerned Hospital and
other concerned departments, if any, for its compliance and for taking
appropriate action. A copy shall also be given to the learned counsel for
the petitioner; and further, the concerned hospital shall be also
intimated about this judgment through e-mail .
9. Direct service today is permitted.
(MOOL CHAND TYAGI, J)
ARUN B
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