X The Mother Of The Victim Girl And vs The Principal Secretary Of The .... ... on 8 May, 2026

[Cites 18, Cited by 0]

Orissa High Court

X The Mother Of The Victim Girl And vs The Principal Secretary Of The .... ... on 8 May, 2026

1. Heard Mr. R. Sarangi, learned counsel for the Petitioners, Mr. T.K. Dash as well as Mr. G. Tripathy, learned Additional Government Advocates, Mr. P.K. Parhi, learned DSGI along with Ms. P. Nayak, learned C.G.C. for respective parties.

W.P.(C) No.9563 of 2026 Page 1 of 24 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-May-2026 16:04:08

2. Three Petitioners in present writ petition, where Petitioner No.3 is the minor girl and Petitioner Nos.1 & 2 are her mother and father respectively, have approached this Court praying for medical termination of pregnancy of Petitioner No.3.

3. The background fact of the case is that, Petitioner No.3, a minor girl aged about 16 years, is having date of birth on 10.07.2009. Initially, Capital P.S. Case No.249 dated 02.06.2025 was registered for commission of offence under Section 137 (2) of Bharatiya Nyaya Sanhita (in short, "BNS") on the allegation that she was kidnapped by the accused on 02.06.2025. Subsequently, she was rescued by the Police and then kept in the custody of Child Welfare Committee (in short, "C.W.C."), Khordha. However, the custody of the minor girl was given to her parents in the month of July 2025. Then again, the same accused allegedly kidnapped the minor girl on 29.08.2025 and on the complaint made by Petitioner No.1 (the mother) Capital P.S. Case No.474 dated 02.09.2025 was registered, as per the copy of the FIR under Annexure-6. The parents of Petitioner No.3 approached this Court in W.P.(Crl.) No.161 of 2025 praying for rescue of the minor girl by issuance of a writ of Habeas Corpus. This Court in Division Bench vide order dated 09.01.2026, presided by the Hon'ble Chief Justice, W.P.(C) No.9563 of 2026 Page 2 of 24 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-May-2026 16:04:08 disposed of said W.P.(Crl.) with observation that since the minor child was rescued in the meantime (on 27.12.2025) and produced before the C.W.C., no fetter is there on the part of parents to approach the C.W.C. for directions/orders and it is open for said Committee to pass necessary directions in the welfare of child, who is in need of care and protection. At the time of rescue, Petitioner No.3 was medically examined and found carrying an embryo in her womb.

4. In the present writ petition, as stated above, all the Petitioners have approached this Court for medical termination of pregnancy of Petitioner No.3 which according to them is unwanted as she is a victim of offences under Sections 137(2), 87, 64(2)(m) and 61(2) of the BNS and Sections 6, 17 of the POCSO Act.

5. This Court vide interim order dated 22.04.2026 directed the Director of Capital Hospital, Bhubaneswar to constitute appropriate Medical Board and examine the health condition of the minor girl, the stage of pregnancy and whether termination of pregnancy could take place, if yes, the health risk involved to the minor girl in case the termination is effected, and to submit a report to this Court. W.P.(C) No.9563 of 2026 Page 3 of 24 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-May-2026 16:04:08

6. The Director, Capital Hospital, Bhubaneswar submitted the report of the Medical Board dated 23.04.2026 opining that the minor girl is required to be further examined by the Medical Board meant for medical termination of pregnancy beyond 24 weeks and depending upon their opinion, the Special Board will decide further action. The relevant portion of said report is re-produced below:

"4. On examination, the vitals of xx xx xx was recorded as an average body built, Pulse - 94 per Min, Blood Pressure - 116/80 MM/Hg. On Abdominal examination the height of the Uterus was 28 Weeks, relaxed & Foetal heart sound was audible. There was no uterine contraction & on PV Examination the Cervix was long & OS was closed & she was advised to continue Iron & Calcium tablets orally. The Blood & Urine Investigations were sent for antenatal profile & ultrasound was advised.

5. In view of the above, this committee decided that, after receiving these reports it will be sent to the existing Medical Board meant for Medical Termination of Pregnancy beyond 24 weeks. Depending upon their opinion the Special Board will decide whether to continue the pregnancy or to terminate the pregnancy."

7. Again on 24.04.2026, this Court based on the report of the Special Medical Board as produced by the Director of Capital Hospital, Bhubaneswar directed for taking immediate steps for examination of the minor girl by the concerned Medical Board as soon as possible and to submit a report before 27.04.2026. A report of the Director was W.P.(C) No.9563 of 2026 Page 4 of 24 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-May-2026 16:04:08 produced before this Court on 27.04.2026, wherein the Medical Board has opined as follows:-

" xx .. xx .. ..

Dr. xx .. xx .. xx .., Asso. Prof., I/C HOD O&G opined the patient xx .. xx .. xx .., aged about 16 years (Date of birth 10.07.2009), D/o xx .. xx .. xx .. & xx .. xx .. xx .. of xx .. xx .. xx .., Bhubaneswar was admitted to Dept. of O & G, PGIMER & Capital Hospital on 22/04/2026 with Regd. No.OGA 694/694 dt.22/04/2026. The patient is an unmarried minor primi at 29 weeks 1 days of gestational age at the time of admission. USG was done on 23/04/2026 which showed single live intrauterine fetus of average gestational age 30 weeks 4 days and average weight 1627 gm. With adequate liquor, without any gross fetal anomaly, with posterior placenta grade II. Blood investigations of the patient show HB%: 9.3gm% & Blood group-O negative with Indirect Coomb's test negative. Considering the advanced gestational age and the birth of a preterm fetus with associated comorbidities if delivered now, it is better to continue the pregnancy till term. If termination of pregnancy will be done at this stage of pregnancy, then the health risks to the mother (minor girl) like operative procedure, post-partum hemorrhage may occur.

Dr. xx .. xx .. xx .., Asst. Prof., Dept. of Radiology confirmed USG report done on 23.04.2026 in PGIMER & Capital Hospital, Bhubaneswar showing single live intrauterine fetus of average gestational age 30 weeks 4 days showing posterior placentation grade II, without any gross fetal anomaly and adequate liquor.

W.P.(C) No.9563 of 2026 Page 5 of 24 Signature Not Verified Digitally Signed

Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-May-2026 16:04:08 Dr. xx .. xx .. xx .., Asso. Professor, Dept. of Pediatrics opined that as gestation age is 30 weeks 4 days without any fetal anomaly, weight of the fetus is 1627 gms. And it is the first pregnancy of a Rh-negative mother with negative Indirect Coomb's test, it is better to continue the pregnancy till term. If MTP is done now, then the baby will be preterm with low birth weight with associated comorbidities.

Dr. xx .. xx .. xx .., Professor, Dept. of General Medicine & Dr. xx..xx.., Associate Professor, Dept. of Anesthesiology reviewed all the investigations.

After reviewing all the available documents and treatment records, it is unanimously decided by the Medical Board, not to allow medical termination of pregnancy, as the girl is minor and in advanced stage of pregnancy with a viable fetus without any congenital anomaly and to prevent the birth of a preterm baby."

8. According to the report of the Medical Board as produced before this Court on 27.04.2026, the medical termination of pregnancy is not to be allowed as the girl is minor and in advance stage of pregnancy (30 weeks 4 days) with viable fetus without any congenital anomaly and to prevent the birth of a preterm baby. Then on the prayer of learned counsel for the Petitioner, the matter was adjourned to 01.05.2026 enabling him to take necessary instructions from the Petitioners regarding care, treatment and other facilities to be provided to the minor girl. On 01.05.2026, Mr. Sarangi, learned counsel for the W.P.(C) No.9563 of 2026 Page 6 of 24 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-May-2026 16:04:08 Petitioners submitted that there is a remedy to end the life of the fetus by injecting intra-cardiac injection, KCL without affecting the life of the mother. Accordingly, the Director of Capital Hospital, Bhubaneswar was again directed to examine the feasibility of safe administration of any such injection to end the life of the fetus without causing any harm or danger to the life of the mother, if necessary in consultation with the appropriate Medical Board or team of Doctors and to opine on the same including any other possibility available to end the life of the fetus without risking the life of the mother. On 4th May 2026, a report of the Director and his team of Doctors was produced before this Court opining that such procedure is not possible at present stage of pregnancy of the minor girl. It was opined as follows:-

"After careful examination of the case records of 16 years, minor pregnant girl who was admitted to O & G Deptt. At PGIMER & Capital Hospital, Bhubaneswar vide Registration No.OGA-694/22.04.2026 and was discharged on 27.04.2026 with advice of follow up antenatal checkup after 15 days. The following opinion are made by the team of experts regarding queries of the Hon'ble High Court in WPC No.9563 of 2026 vide Order No.06 dt.01.05.2026.

1) Intracardiac administration of injection KCL is usually done for termination of pregnancy in the 1st trimester & early second trimester for selective W.P.(C) No.9563 of 2026 Page 7 of 24 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-May-2026 16:04:08 feticide in multifetal pregnancy (> 2 Fetuses) and congenital anomalous baby. Literature in Indian study regarding use of injection KCL in such an advance gestational age for a healthy baby is sparse.

2) This procedure is done in a recognized fetal medicine centre by Fetal Medicine Experts. We do not have any experience or expertise in conducting such procedures.

3) As the mother is RH Negative ("O" Negative) conducting such procedures may have complications like isoimmunisation which will jeopardize the outcome of future pregnancy.

4) Delivery of dead fetus at advanced gestational age carries risk of failed induction, operative deliveries, postpartum hemorrhage, disseminated intravascular coagulation, need of multiple blood transfusions.

5) Moreover, to deliver a dead baby carries more risk to the mother than delivery of a live baby at this gestational age. Her gestational age is calculated as 31weeks 06 days as of today based on USG findings on 23.04.2026.

6) In view of the above, it is requested before the Hon'ble Court to seek further opinion from Fetal Medicine experts at higher centre like AIIMS."

The Director and his team of Doctors were also present through virtual mode before this Court and being asked, it was opined by the team of Doctors that, at this advance stage of gestational age of W.P.(C) No.9563 of 2026 Page 8 of 24 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-May-2026 16:04:08 31 weeks 6 days as on 2nd May 2026, it is very risky for termination of pregnancy and it will involve health and life risk to the minor girl who is RH Negative ("O" Negative) and this may raise complications like isoimmunisation and would jeopardize the outcome of future pregnancy of the mother, and it could be further associated with hemorrhage and other risks mentioned at paragraph 4 of the report. It is further stated by the Director of Capital Hospital, Bhubaneswar that intracardiac administration of injection KCL is usually done in the 1st trimester and early second trimester for selective feticide in multifetal pregnancy (> 2 Fetuses) and congenital anomalous baby. But such facility of administration of injection KCL is presently not available in the Capital Hospital and the same according to the knowledge of the Director is available at All India Institute of Medical Sciences, (AIIMS), Bhubaneswar in the Department of Fetal Medicines. So as prayed by Mr. Sarangi, learned counsel for the Petitioners, the minor girl was referred to the AIIMS, Bhubaneswar for further opinion on termination of pregnancy. A report of the Superintendent of AIIMS, Bhubaneswar was submitted before this Court on 6 th May 2026 stating that the meeting of the Medical Board was convened on 05.05.2026 and the condition of the minor girl was examined with regard to W.P.(C) No.9563 of 2026 Page 9 of 24 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-May-2026 16:04:08 medical termination of pregnancy. The opinion of the Medical Board consisting of nine Doctors is as follows:-

"i) The committee went through the Hon'ble High Court order.

ii) The minor girl was examined in the dept. of O&G by a team of obstetric experts and ultrasound was performed. It was diagnosed to be primigravida at 31 weeks period of gestation with Rh negative, non isoimmunized pregnancy with hypothyroidism with mild anemia with single live intrauterine fetus in cephalic presentation

iii) The committee opined that termination of pregnancy is possible at this gestational age (31 weeks).

iv) However, termination at this gestational age may entail complications to the mother like prolonged duration from initiation of termination till the delivery of the fetus, possibility of Cesarean Section, Rh isoimmunisation, excessive bleeding during or after delivery, infection ICU admission, need for blood transfusion, risk of maternal death as well as complications to the baby like fetal distress, birth asphyxia, prematurity and its associated sequlae requiring prolonged admission to neonatal ICU.

v) There is also possibility of live birth at this gestational age (31 weeks) needing optimal care.

vi) The committee is of the opinion that considering the above risk, the pregnancy may be continued till 40 weeks with proper antenatal care and delivery may be conducted at that gestation for safer outcomes for the mother and baby.

W.P.(C) No.9563 of 2026 Page 10 of 24 Signature Not Verified Digitally Signed

Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-May-2026 16:04:08

vii) Necessary direction may be issued by the Hon'ble Court regarding further care of the baby if born alive regardless of the gestational age."

9. It needs to be mentioned here that as per the report of the Medical Board at Capital Hospital, Bhubaneswar and the AIIMS, Bhubaneswar, it is stated that medical termination of pregnancy of the minor girl is involved with high risk including maternal death and other complications to both the mother and baby in the event of happening of medical termination of pregnancy at this stage. Keeping in view, the opinions of Medical Boards at Capital Hospital, Bhubaneswar and AIIMS, Bhubaneswar, the parents of the minor girl have expressed their willingness to continue with the pregnancy till safer delivery of baby upon completion of full gestation period as reflected in the order dated 07.05.2026 of this Court.

10. Today, in course of hearing, a memo is filed on behalf of the Petitioners as signed by the mother of the minor girl as well as learned counsel for the Petitioners opting for continuing the pregnancy till delivery of the baby upon completion of the gestational period. Said memo as filed in Court by Mr. Sarangi, learned counsel for the Petitioners, is kept on record.

W.P.(C) No.9563 of 2026 Page 11 of 24 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-May-2026 16:04:08

11. The issue of medical termination of pregnancy, in the context of right to reproductive autonomy, has been well-settled by catena of decisions of the Hon'ble Supreme Court of India. In X vs. The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi and others, (2023) 9 SCC 433 it has been observed as follows:-

"101. The ambit of reproductive rights is not restricted to the right of women to have or not have children. It also includes the constellation of freedoms and entitlements that enable a woman to decide freely on all matters relating to her sexual and reproductive health. Reproductive rights include the right to access education and information about contraception and sexual health, the right to decide whether and what type of contraceptives to use, the right to choose whether and when to have children, the right to choose the number of children, the right to access safe and legal abortions, and the right to reproductive healthcare. Women must also have the autonomy to make decisions concerning these rights, free from coercion or violence.

xxx xxx xxx

103. To this, we may add that a woman is often enmeshed 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 W.P.(C) No.9563 of 2026 Page 12 of 24 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-May-2026 16:04:08 woman has the intrinsic right to choose to undergo or not to undergo abortion without any consent or authorisation from a third party.

104. The right to reproductive autonomy is closely linked with the right to bodily autonomy. As the term itself suggests, bodily autonomy is the right to take decisions about one's body. The consequences of an unwanted pregnancy on a woman's body as well as her mind cannot be understated. The foetus 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.

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110. Decisional autonomy is an integral part of the right to privacy. Decisional autonomy is the ability to make decisions in respect of intimate relations (para 248 of Puttaswamy [K.S. Puttaswamy (Privacy-9 J.) v. Union of India, (2017) 10 SCC 1] ). In Puttaswamy [K.S. Puttaswamy (Privacy-9 J.) v. Union of India, (2017) 10 SCC 1] this Court held that personal aspects of life such as family, marriage, procreation, and sexual orientation are all intrinsic to the dignity of the individual (para 298). The right to privacy safeguards and respects the decisional autonomy of the individual to exercise intimate personal choices and control over the vital aspects of their body and life.

W.P.(C) No.9563 of 2026 Page 13 of 24 Signature Not Verified Digitally Signed

Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-May-2026 16:04:08

111. In Common Cause v. Union of India [Common Cause v. Union of India, (2018) 5 SCC 1] this Court observed that right to privacy protects decisional autonomy in matters related to bodily integrity : (Common Cause case [Common Cause v. Union of India, (2018) 5 SCC 1], SCC pp. 236-37, para 441) "441. ... The right to privacy resides in the right to liberty and in the respect of autonomy. The right to privacy protects autonomy in making decisions related to the intimate domain of death as well as bodily integrity. Few moments could be of as much importance as the intimate and private decisions that we are faced regarding death. [ T.L. Beauchamp, "The Right to Privacy and the Right to Die", Social Philosophy and Policy (2000), Vol. 17 at p. 276.] Continuing treatment against the wishes of a patient is not only a violation of the principle of informed consent, but also of bodily privacy and bodily integrity that have been recognised as a facet of privacy by this Court."

112. The right to decisional autonomy also means that women may choose the course of their lives. Besides physical consequences, unwanted pregnancies which women are forced to carry to term may have cascading effects for the rest of her life by interrupting her education, her career, or affecting her mental well-being.

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115. The right to dignity encapsulates the right of every individual to be treated as a self-governing entity having intrinsic value. It means that every human being possesses dignity merely by being a human, and can make self-defining and self-determining choices. Dignity has been recognised as a core component of the right to life and liberty under Article 21.

116. If women with unwanted pregnancies are forced to carry their pregnancies to term, the State would be stripping them of the right to determine the immediate and long-term path their lives would W.P.(C) No.9563 of 2026 Page 14 of 24 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-May-2026 16:04:08 take. Depriving women of autonomy not only over their bodies but also over their lives would be an affront to their dignity. The right to choose for oneself -- be it as significant as choosing the course of one's life or as mundane as one's day-to-day activities -- forms a part of the right to dignity. It is this right which would be under attack if women were forced to continue with unwanted pregnancies.

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122. In the context of abortion, the right to dignity entails recognising the competence and authority of every woman to take reproductive decisions, including the decision to terminate the pregnancy. Although human dignity inheres in every individual, it is susceptible to violation by external conditions and treatment imposed by the State. The right of every woman to make reproductive choices without undue interference from the State is central to the idea of human dignity. Deprivation of access to reproductive healthcare or emotional and physical well-being also injures the dignity of women.

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127. The object of Section 3(2)(b) of the MTP Act read with Rule 3-B is to provide for abortions between twenty and twenty-four weeks, rendered unwanted due to a change in the material circumstances of women. In view of the object, there is no rationale for excluding unmarried or single women (who face a change in their material circumstances) from the ambit of Rule 3-B. A narrow interpretation of Rule 3-B, limited only to married women, would render the provision discriminatory towards unmarried women and violative of Article 14 of the Constitution. Article 14 requires the State to refrain from denying to any person equality before the law or equal protection of laws. Prohibiting unmarried or single pregnant women (whose pregnancies are between twenty and W.P.(C) No.9563 of 2026 Page 15 of 24 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-May-2026 16:04:08 twenty-four weeks) from accessing abortion while allowing married women to access them during the same period would fall foul of the spirit guiding Article 14. The law should not decide the beneficiaries of a statute based on narrow patriarchal principles about what constitutes "permissible sex", which create invidious classifications and excludes groups based on their personal circumstances. The rights of reproductive autonomy, dignity, and privacy under Article 21 give an unmarried woman the right of choice on whether or not to bear a child, on a similar footing of a married woman."

12. In a recent judgment in A (Mother of X) vs. State of Maharashtra & others passed in Civil Appeal No.827 of 2026 disposed of on 6th February 2026, Hon'ble Supreme Court of India has reiterated its earlier decisions as afore-stated permitting the Appellant's daughter to terminate pregnancy at 28 weeks. Further, in another decision in A (Mother of X) vs. State of Maharashtra and others, (2024) 6 SCC 327, the Hon'ble Supreme Court reiterated the principles where the pregnant woman was a minor and victim of offence under Section 376 of the I.P.C. It is observed by the Hon'ble Supreme Court as follows:-

25. From a perusal of the MTP Act, its Statement of Objects and Reasons as well as the recommendation of the Shah Committee which examined the issue of liberalising abortion laws in India, [ Report of the Committee to Study the Question of Legalisation of Abortion, Ministry of Health and Family Planning, Government of India, dated December 1966.] two clear postulates emerge as to W.P.(C) No.9563 of 2026 Page 16 of 24 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-May-2026 16:04:08 the legislative intent of the MTP Act. Firstly, the health of the woman is paramount. This includes the risk avoided from the woman not availing unsafe and illegal methods of abortion.

Secondly, disallowing termination does not stop abortions, it only stops safe and accessible abortions. The opinion of the RMP and the Medical Board must balance the legislative mandate of the MTP Act and the fundamental right of the pregnant person seeking a termination of the pregnancy. However, as noticed above and by this Court in X v. State (NCT of Delhi) [X v. State (NCT of Delhi), (2023) 9 SCC 433] the fear of prosecution among RMPs acts as a barrier for pregnant people in accessing safe abortion. Further, since the MTP Act only allows abortion beyond twenty-four weeks if the foetus is diagnosed with substantial abnormalities, the Medical Board opines against termination of pregnancy merely by stating that the threshold under Section 3(2- B) of the MTP Act is not satisfied. The clarificatory report dated 3-4-2024 fell into this error by denying termination on the ground that the gestational age of the foetus is above twenty-four weeks and there are no congenital abnormalities in the foetus.

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.

27. This Court in XYZ v. State of Gujarat [XYZ v. State of Gujarat, 2023 SCC OnLine SC 1573] held that the Medical Board or the High Court cannot refuse abortion merely on the W.P.(C) No.9563 of 2026 Page 17 of 24 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-May-2026 16:04:08 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 : (SCC OnLine SC paras 10 & 19) "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 17-8-2023 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."

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 W.P.(C) No.9563 of 2026 Page 18 of 24 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-May-2026 16:04:08 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.

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 W.P.(C) No.9563 of 2026 Page 19 of 24 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-May-2026 16:04:08 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. 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.

31. The opinion of the pregnant person must be given primacy in evaluating the foreseeable environment of the person under Section 3(3) of the MTP Act. [X v. State (NCT of Delhi), (2023) 9 SCC 433] In Z v. State of Bihar [Z v. State of Bihar, (2018) 11 SCC 572 : (2018) 2 SCC (Cri) 675] this Court found that the State authorities had failed in not terminating the pregnancy before the passage of twenty weeks which was permissible under the law. W.P.(C) No.9563 of 2026 Page 20 of 24 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-May-2026 16:04:08 While a pregnancy beyond the statutory prescription would require the intervention of a constitutional court, the vitality of time sensitivity was recognised by this Court. X was taken for termination of her pregnancy at the gestational age of twenty-five weeks in the present case. The passage of time in seeking the permission of this Court after being unsuccessful before the High Court matured the gestational age of the foetus to almost twenty- nine weeks. This increased the risk involved in ending the pregnancy of X inducing the voluntary change of opinion by X and her parents to take the pregnancy to term."

13. In Suchita Srivastava v. Chandigarh Admn., (2009) 9 SCC 1, the Hon'ble Supreme Court has also observed that the right to make reproductive choices is a facet of Article 21 of the Constitution. It is further held that, no entity, even if it is the State, can speak on behalf of a pregnant person and usurp her consent. The choice to continue pregnancy to term, regardless of the court having allowed termination of the pregnancy, belongs to the individual alone.

14. As propounded by the Hon'ble Supreme Court in different decisions cited above, it is seeming that the reproductive autonomy is vested with the woman alone carrying the pregnancy to safeguard her right to such autonomy, and the Medical Termination of Pregnancy Act has taken required measures. It is true that, as in the case of a minor carrying pregnancy, the opinion of her parents or legal guardian W.P.(C) No.9563 of 2026 Page 21 of 24 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-May-2026 16:04:08 matters to choose the legal route for terminating the pregnancy even at an advance stage subject to the risk of health and life to the carrying mother. In the given facts of the case as stated above, it is repeatedly opined by the Medical Board constituted at the Capital Hospital, Bhubaneswar that keeping in view the RH negative factor ("O" negative), it would be highly risky for termination of pregnancy at such advance stage. The Medical Board at AIIMS, Bhubaneswar has also opined in the same line that in the event of medical termination of pregnancy at this stage, it would involve several risks including postpartum hemorrhage, disseminated intravascular coagulation, etc. and further for delivery of a dead baby would carry more risk to the mother than the life of the baby, even involving maternal death.

15. The mother of the victim keeping such high risk involved in termination of pregnancy has opted at her choice, along with the minor girl, to continue with the pregnancy till safer delivery of the baby upon completion of gestational period and they have filed a memo expressing their consent. Respecting to such expression of decision of the mother of the minor girl as well as the minor girl, this Court feels it appropriate to direct the authorities for taking appropriate care and providing appropriate medical facility for safer delivery of the baby. W.P.(C) No.9563 of 2026 Page 22 of 24 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-May-2026 16:04:08

16. It is also submitted that the parents of the victim are belonging to economically poor section and they are working as labourers in construction sector. As per the averments made in the writ petition, they have registered as construction workers and having their identity card issued by the Odisha Building and Other Construction Workers Welfare Board, Bhubaneswar.

17. Thus keeping in view the overall circumstances as well as the economic condition of the victim and her parents, the State-Opposite Parties are directed to take steps for taking appropriate care of the pregnant minor girl by providing all such facilities for safer delivery of a healthy baby, including medicines and other required nutrition.

18. At this stage, Mr. Sarangi, learned counsel for the Petitioner opts for periodic check-up and delivery of the baby at AIIMS, Bhubaneswar.

19. Accordingly, the Director (Superintendent) of AIIMS, Bhubaneswar is directed to provide all such required medical facilities to the pregnant minor girl for safer delivery of the baby and shall take adequate measures for taking proper care of the mother and baby both W.P.(C) No.9563 of 2026 Page 23 of 24 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-May-2026 16:04:08 during their incumbency in the Hospital. The State Authorities including the Director of Capital Hospital, Bhubaneswar are also directed to extend all such medical facilities in case the Petitioners opt to be treated at Capital Hospital, Bhubaneswar. It goes without saying that all necessary medicines, medical treatment and other ancillary medical facilities relating to the treatment and delivery of the baby should be provided free of cost to the pregnant minor girl (Petitioner No.3). The Director of AIIMS, Bhubaneswar and Director of Capital Hospital, Bhubaneswar will extend such facilities, free of cost, on being approached by the Petitioners.

20. With aforesaid observations and directions, the writ petition is disposed of. A copy of this judgment may be handed over to Mr. T.K. Dash, learned AGA, and Mr. P.K. Parhi, learned DSG, for taking necessary steps on their part.

(B.P. Routray) Judge B.K. Barik/A.R.-cum-Senior Secretary W.P.(C) No.9563 of 2026 Page 24 of 24

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