DIVYA DIWAKAR vs STATE OF CHHATTISGARH

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CGHC010424472026 2026:CGHC:46535
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WPC No. 5432 of 2026
1 – XYZ (Victim) D/o Shri ABC (Father) Aged About 21 Years R/o Village Silyari,
Outpost Silyari, P.S. Dharsiwa, District Raipur (C.G.)
... Petitioner(s)
versus
1 - State Of Chhattisgarh Through Secretary, Department Of Home, Mantralaya,
Mahanadi Bhawan, Atal Nagar Nawa Raipur, District Raipur (C.G.),
2 - Secretary, Department Of Health, Mantralaya, Mahanadi Bhawan, Atal Nagar
Nawa Raipur, District Raipur (C.G.),
3 - Chief Medical And Health Officer (C.M.H.O), District Bilaspur (C.G.)
4 - Civil Surgeon-Cum-Chief Hospital Superintendent, District Hospital Bilaspur
(C.G.)
5 - Station House Officer (S.H.O), Police Station Masturi, District Bilaspur (C.G.)
... Respondent(s)
For Petitioner : Mr. Anukul Biswas, Advocate
For State : Mr. Avinash Chand Sahu, Deputy AG
Hon'ble Shri Justice Amitendra Kishore Prasad
Order on Board
03/11/2026
1. This Writ Petition has been preferred seeking a direction from this Court with
regard to medical termination of pregnancy of the Petitioner who is a victim of
offence of rape.

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2. Facts of the case, in brief, are that the petitioner is a 21-year-old unmarried
woman and a victim of rape allegedly committed by the accused-
Satyaprakash Rai, on the false pretext of marriage. Upon discovering that the
accused had secretly married another woman, she lodged a police complaint,
pursuant to which Crime No. 715/2026 was registered at Police Station
Masturi, District Bilaspur, under Section 376 of the IPC. During her medical
examination, the petitioner was found to be pregnant, and the
ultrasonography conducted on 05.10.2026 confirmed a single live intra-
uterine pregnancy of 8 weeks. Therefore, the petitioner has preferred the
present petition seeking urgent directions from this Court.
3. Learned counsel for the petitioner submits that the pregnancy of child may be
detrimental to the life of petitioner and may also have significant physical,
emotional, social and economic consequences to her. Therefore, she does
not want to carry on pregnancy and deliver child, as such, she has filed
instant petition seeking permission of this court for termination of her
unwanted pregnancy. He submits that the petitioner is a 21-year-old
unmarried woman who has been sexually exploited by the accused. He
further submits that initially, Zero FIR No. 00/2026 was registered at Police
Station Dharsiwa, District Raipur, which was subsequently transferred to
Police Station Masturi, District Bilaspur, where regular Crime No. 715/2026
was registered for the offence punishable under Section 376 of the IPC.
4. Vide order dated 30.10.2026, this Court directed for medical examination of
the petitioner by the Medical Board constituted under the provisions of
Section 3 of the Medical Termination of Pregnancy Act, 1971 consisting of
one Gynecologist, one Pediatrician, one Radiologist/Sonologist. It was

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directed to the Board to examine the petitioner after due verification of
petitioner’s identity in terms of Crime No.715/2026 at Police Station Masturi,
District Bilaspur (C.G.).
5. This Court had emphasizedly directed the Chief Medical and Health Officer,
District Bilaspur to ensure that the prosecutrix is physically examined by a
duly constituted team of medical Doctors/Medical Board.
6. In compliance of the said directions, the Chief Medical and Health Officer,
District Bilaspur CG has sent a letter dated 02.11.2026 whereby Medical
Board has reported that :-
जॉच प्रतिवेदन
माननीय उच्च न्यायालय द्वारा दिये गये निर्देश के परिपालन में कु . दिव्या
/ 21 - ,
दिवाकर कामेश्वर दिवाकर उम्र वर्ष जाति सतनामी पता सिलियारी
- , well oriented, well
ब्लॉक धरसींवा जिला रायपुर के संबंध में जॉच में
councious, Obey command, Vital stable, P/A soft, U/T Just
palpable, Uterus 12 weeks size ,
पाया गया उक्त आधार पर चिकित्सा
विशेषज्ञ का अभिमत निम्नानुसार है :-
1.
समस्त प्रकार के जाँच में सब सामान्य पाया गया है।
2.
आवेदिका का गर्भपात जिला चिकित्सालय अथवा उच्च संस्था में किया जा
सकता है।
7. Learned counsel for the State submits that since the petitioner was sexually
exploited, therefore she has conceived, but she does not want to carry on her
pregnancy. Therefore, it may be presumed that if permission is not granted,
then it would cause grave injury to the mental health of petitioner, as such,
relief sought for may be granted to her.
8. I have heard learned counsel for the parties and perused the material
available on record including medical report submitted by a team of
doctors/Medical Board of District Hospital, Bilaspur.

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9. Issue involved in the instant case is seeking permission for termination of
pregnancy, which is governed by the provisions of the Medical Termination of
Pregnancy Act, 1971 (henceforth referred to as “Act, 1971”). Section 3 of the
Act, 1971 provides for termination of pregnancy by registered medical
practitioner under the circumstances, as has been envisaged therein, which
is reproduced as under :-
“3. When Pregnancies may be terminated by
registered medical practitioners. – (1) Notwithstanding
anything contained in the Indian Penal Code (45 of 1860), a
registered medical practitioner shall not be guilty of any
offence under that Code or under any other law for the time
being in force, if any pregnancy is terminated by him in
accordance with the provisions of this Act.”
[ In section 3 of the principal Act, for sub-section (2), the
following sub-sections have been substituted vide
Amendment Act, 2021, No. 8. of 2021 ]
"(2) Subject to the provisions of sub-section (4), a
pregnancy may be terminated by a registered medical
practitioner,—
(a) where the length of the pregnancy does not exceed
twenty weeks, if such medical practitioner is, or
(b) where the length of the pregnancy exceeds twenty
weeks but does not exceed twenty-four weeks in case of
such category of woman as may be prescribed by rules
made under this Act, if not less than two registered medical
practitioners are, of the opinion, formed in good faith, that -
(i) the continuance of the pregnancy would involve a risk to
the life of the pregnant woman or of grave injury to her
physical or mental health; or
(ii) there is a substantial risk that if the child were born, it
would suffer from any serious physical or mental
abnormality.

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Explanation 1.—For the purposes of clause (a), where any
pregnancy occurs as a result of failure of any device or
method used by any woman or her partner for the purpose
of limiting the number of children or preventing pregnancy,
the anguish caused by such pregnancy may be presumed to
constitute a grave injury to the mental health of the pregnant
woman.
Explanation 2.—For the purposes of clauses (a) and (b),
where any pregnancy is alleged by the pregnant woman to
have been caused by rape, the anguish caused by the
pregnancy shall be presumed to constitute a grave injury to
the mental health of the pregnant woman.
(2A) The norms for the registered medical practitioner
whose opinion is required for termination of pregnancy at
different gestational age shall be such as may be prescribed
by rules made under this Act.
(2B) The provisions of sub-section (2) relating to the length
of 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;
(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.".

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(3) In determining whether the continuance of pregnancy
would involve such risk of injury to the health as is
mentioned in subsection (2), account may be taken to the
pregnant woman's actual or reasonable 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.”
10.
In the instant case, the petitioner is a 21-year-old unmarried woman who is
a victim of sexual exploitation. Therefore, she does not want to carry on
her pregnancy and deliver child. Team of doctors has reported that
gestational age is 12 weeks as on 02.11.2026. It has also been reported
that the petitioner has been found medically fit to undergo Medical
Termination of Pregnancy.
11.Having considered aforesaid facts, as has been stated above, it cannot be
denied that continuation of pregnancy can lead to complication at a later
stage on account of physical and mental condition of the victim.
12.This Court in WPC No. 270/2018 (Ku. Pooja Mandavi v. State of
Chhattisgarh and others) decided on 02.02.2018 in paragraph No. 23 in a
similar situation allowing the writ petition has held as under:
“23. Taking into consideration the entire facts including her
age (13 years) and circumstances what has been stated by
the victim, her gestational age, judicial precedents, taking
into consideration her adolescent pregnancy and risk
involved in childbirth, medical condition of the victim /
petitioner, as she is suffering anemia and sickle cell (trait),

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considering the fact that the fetus if allowed to born, would
have a limited life span with serious handicaps, and that as
per Explanation I appended to sub-section (2) of Section 3 of
the Act of 1971 mental agony of a rape victim (petitioner) has
to be treated as a case of grave injury, particularly taking into
consideration that it is in the best interests of the victim alone
which has to be kept in view and considering the provisions
of Sections 3 and 4 of the Act of 1971 and Explanation I that
the termination of pregnancy is immediately necessary to
save the life of a pregnant girl like the petitioner herein, in the
interest of justice, it would be proper to direct that a team of
five doctors shall consider the feasibility of termination of
pregnancy at this gestational age. Accordingly, the writ
petition is allowed…….”
13.This Court in WPC No. 2836 of 2026 (XYZ and Another v. State of
Chhattisgarh and others) decided on 15.06.2026 in paragraph No. 20 in a
similar situation allowing the writ petition has held as under:
“20. In the considered opinion of this Court, the facts of the
present case squarely satisfy the requirements envisaged
under Section 3 of the Medical Termination of Pregnancy
Act, 1971, as amended in 2021. The pregnancy is within the
statutorily permissible period. The victim has expressed her
free and informed desire not to continue with the pregnancy.
The Medical Board has opined that termination is medically
feasible. The pregnancy is alleged to be the consequence of
repeated sexual assault upon a minor girl. Therefore, the
statutory presumption of grave injury to the mental health of
the petitioner stands attracted and there exists no legal
impediment in permitting medical termination of pregnancy.”

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14.Given the facts and circumstances of the instant case and further referring
to the judgment of the Hon'ble Supreme Court in the case of "A v. Union of
India” [2018 (14) SCC 75] and also "Sarmishtha Chakraborthy and Another
v. Union of India” [2018 (13) SCC 339] permitted termination of pregnancy
at the stage where the victim was carrying pregnancy for around 26 weeks.
The Hon'ble Supreme Court in the case of " Murugan Nayakkar v. Union of
India and others" [2017 SCC Online 1092”], considering the fact that the
victim of rape must be given that much of liberty and right to decide
whether she should continue with the pregnancy or she should be
permitted to terminate the pregnancy.
15.Recently, the Hon’ble Supreme Court in the matter of “A (Mother of X) vs.
State of Maharashtra & Ors.” [2026 LiveLaw (SC) 160] has observed that
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. In the aforesaid case, the Hon’ble Supreme Court
has referred various judgments and in Para 17 following observation has
been made:-
"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 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:

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“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.
x x x
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.

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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 pregnancy to its full term or terminate it
is firmly rooted in the 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

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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."
16.The petitioner victim of sexual exploitation herself carry stigma in her life. In
facts situation of the case, if she is not permitted to terminate her
pregnancy, which is result of sexual exploitation, then it would be against
her liberty and right to decide whether she continues with the pregnancy or
not ?
17.The Hon’ble Supreme Court in the matter of S vs. The Union of India & Ors.
Reported in 2026 LiveLaw (SC) 446 held in paragraphs No.11.3, 14 & 14.1,
reads as under:-
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

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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 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.
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

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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.
18.At this stage, it would be relevant to notice that Explanation 2 appended to
Section 3 of the Medical Termination of Pregnancy Act, 1971, as amended
in 2021, creates a statutory presumption that where a pregnancy is alleged
to have been caused by rape, the anguish caused by such pregnancy shall
be presumed to constitute a grave injury to the mental health of the
pregnant woman. The legislative intent underlying the said provision is
clear and unambiguous. A woman who is compelled to carry a pregnancy
resulting from rape is presumed in law to suffer grave mental injury. The
trauma arising from sexual assault, coupled with the social, emotional and
psychological consequences of an unwanted pregnancy, has a profound
impact upon the life and future of the victim.

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19.This Court cannot lose sight of the fact that the petitioner is a 21-year-old
woman who was subjected to sexual exploitation on the false pretext of
marriage. The pregnancy is not the result of a consensual relationship but
is alleged to be the outcome of offences punishable under Section 376 of
the IPC. To compel such a victim to continue with the pregnancy against
her wishes would amount to subjecting her to further trauma and would
seriously impinge upon her bodily integrity, dignity, privacy and
reproductive autonomy, all of which are facets of the right to life guaranteed
under Article 21 of the Constitution of India.
20.The victim has expressed her free and informed desire not to continue with
the pregnancy. The pregnancy is alleged to be the consequence of
repeated sexual assault upon a women. Therefore, the statutory
presumption of grave injury to the mental health of the petitioner stands
attracted and there exists no legal impediment in permitting medical
termination of pregnancy.
21.Consequently, and in the interest of securing the physical, mental and
emotional well-being of petitioner, the present writ petition deserves to be
and is hereby allowed. It is directed that petitioner shall be admitted, within
a period of one week from today, in the District Hospital/Associated
Government Medical College Hospital, Bilaspur, or any other Government
Hospital having the requisite facilities, where the procedure for medical
termination of pregnancy shall be undertaken strictly in accordance with the
provisions of the Medical Termination of Pregnancy Act, 1971, as amended
in 2021, and the applicable medical protocol. The procedure shall be

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carried out by a duly constituted team of qualified medical experts,
including at least two Gynecologists and a Surgeon, along with such other
specialists as may be considered necessary by the hospital authorities.
22.Before undertaking the procedure, informed written consent of petitioner
shall be obtained in accordance with law. In addition thereto, having regard
to the peculiar facts and circumstances of the case and the continued
involvement and support of the family, the consent and concurrence of her
father/guardian shall also be obtained. The medical team shall fully explain
to petitioner and her family members the nature of the procedure, attendant
risks and post-operative requirements before proceeding further.
23.The Chief Medical and Health Officer, Bilaspur, is directed to immediately
establish contact with the father of petitioner and extend all necessary
assistance to petitioner and her family members for effective
implementation of this order. The CMHO shall ensure that appropriate
transportation, including ambulance facilities, is made available to petitioner
for her travel to and from the hospital and for any medical exigency
connected with the procedure. The CMHO shall also coordinate with the
concerned medical experts and fix an appropriate date for admission and
termination of pregnancy within a period of one week from today. The State
authorities shall render all possible logistical, medical and administrative
assistance to petitioner and her family members so that the procedure is
carried out in a safe, dignified and expeditious manner without causing any
inconvenience or hardship to the victim.

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24.It is further directed that all necessary pre-operative, operative and post-
operative medical care shall be provided to petitioner by the hospital
authorities. The identity, privacy and confidentiality of petitioner shall be
strictly protected at every stage of the proceedings and medical treatment.
25.Since a criminal case arising out of the alleged sexual assault is stated to
be pending investigation/trial, the concerned hospital authorities shall
preserve appropriate samples, including fetal tissue/DNA samples, in
accordance with the applicable medical and forensic protocols and shall
make the same available to the investigating agency, if required, for the
purposes of investigation and prosecution.
26.A copy of this order be communicated forthwith to the Chief Medical and
Health Officer, Bilaspur for immediate compliance. Learned State counsel
shall also ensure prompt transmission and compliance of this order.
27.The Chief Medical and Health Officer, Bilaspur, shall ensure due
compliance of the directions contained in this order and, after completion of
the procedure and necessary post-operative care, shall submit a
compliance report before the Registrar (Judicial) of this Court within a
period of two weeks from the date of completion of the medical termination
procedure. The report shall indicate the steps taken pursuant to this order,
the date on which the procedure was carried out, the medical condition of
petitioner after the procedure and the assistance extended by the
authorities to petitioner and her family members. The Registrar (Judicial)

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shall place the said report before the appropriate Bench for necessary
information.
28.In the result, the writ petition stands allowed.
29.The sealed-cover report of the Medical Board is accordingly taken on
record.
30.The particulars of victim and her father has been screened in the final
order.
Sd/-
(Amitendra Kishore Prasad)
Judge
Priyanka