ORDER

1. The petitioner being a victim of rape has approached this Court seeking direction to the respondents to terminate her pregnancy. At present, the petitioner is a minor child and period of her pregnancy has crossed 24 weeks. Since under The Medical Termination of Pregnancy Act, 1971, termination of the baby is not permissible, therefore, the present petition is filed.

2. Vide order dated 16.10.2023, this Court directed Dean of MGM Medical College and M.Y. Hospital, Indore to constitute a Medical Board of experts to examine the victim’s health condition and give opinion whether termination of pregnancy would be safe for health and life of the victim. The Dean constituted 5 members’ Committee comprising Head of the Department, Professor of OBS, Gynecologist, Pediatrics, Radiologist, Head of the Department, Professor of Surgery, Head of the Department and Professor of Pathology and all of them gave opinion that the patient is minor and victim of sexual assault. The termination of pregnancy can be done.

3. Recently, the apex Court in the case of XYZ v. The State of Gujarat and others [Special Leave Petition (Criminal) Diary No(s). 33790/2023] has passed the judgment relating to this issue. The relevant paragraphs of the said judgment are as under :

“17. More recently, in the case of X v. The Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi and Ors., AIR 2022 SC 4917; this Court, in another three-judge Bench lead by Dr. D.Y. Chandrachud, J. (as the learned Chief Justice then was) observed that a woman can become pregnant by choice irrespective of her marital status. In case the pregnancy is warranted, it is equally shared by both the partners. However, in case of an unwanted or incidental pregnancy, the burden invariably falls on the pregnant woman affecting her mental and physical health. Article 21 of the Constitution recognizes and protects the right of a woman to undergo termination of pregnancy if her mental or physical health is at stake. Importantly, it is the woman alone who has the right over her body and is the ultimate decision-maker on the question of whether she wants to undergo an abortion.

18. In the context of abortion, the right of 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.

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.

21. Subsequently to the medical procedure to be carried out either today or tomorrow, in the event, the foetus is found to be alive, the hospital shall give all necessary medical assistance including incubation either in that hospital or any other hospital where incubation facility is available in order to ensure that the foetus survives. Further, in case the foetus survives, then State shall take steps for ensuring that the child could be adopted in accordance with law.

22. At this stage, learned Senior Counsel for the appellant sought a direction to the concerned doctors to preserve evidence for subsequent DNA Test Report by drawing tissues from the foetus in order to use it as a piece of evidence in the ensuing trial to b