1 WP 5800-26 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5800 OF 2026 Manisha d/o Vithoba Chavan, Age : 34 years, Occu.: Student, R/o.: Kumbar Zari, Tq. Jafrabad, District : Jalna (Being mentally incapacitated, represented through her natural guardian) Through father : Vithoba s/o Tejrao Chavan, Age : 57 years, Occu.: Service, R/o.: Kumbar Zari, Tq. Jafrabad, District : Jalna ….. PETITIONER VERSUS 1. The State of Maharashtra Through : Department of Health and Family Welfare, Mantralaya, Mumbai. 2. The Civil Surgeon / District Medical Board, District General Hospital, Jalna 3. The Medical Superintendent, District Women Hospital, Jalna 4. The Superintendent of Police, Jalna, District : Jalna …. RESPONDENTS …. Ms. Dr. Anagha Pedgaonkar i/b Mr. G. K. Kshirsagar, Advocate for the petitioner Ms. J. P. Reddy, AGP for Respondents-State …. CORAM : SANDIPKUMAR C. MORE AND VAISHALI PATIL-JADHAV, JJ. DATED : 17/06/2026 2026:BHC-AUG:23670-DB 2 WP 5800-26 P. C. : 1. By way of the present petition, the petitioner, who is mentally incapacitated and is represented through her father, has sought a direction to Respondent Nos. 2 and 3 to constitute an emergency Medical Board for evaluating her case and for carrying out the medical termination of her pregnancy. The petitioner has also sought a direction that the operating surgeons shall preserve and seal the DNA/fetal tissue samples obtained from the terminated fetus and hand them over to the Investigating Officer of Tembhurni Police Station in connection with C.R. No. 80 of 2026 for the purposes of forensic examination and DNA matching. 2. The learned counsel for the petitioner submits that the victim is a 34-year-old unmarried woman suffering from Moderate Intellectual Disability and Autism Spectrum Disorder. It is submitted that she became a victim of sexual assault by an unknown person. Owing to her inability to communicate, the identity of the said person could not be disclosed and consequently, the name of the accused remains unknown in FIR bearing C.R. No.80 of 2026 registered with Tembhurni Police Station. It is further submitted that as a result of the said sexual assault, the victim conceived and is presently carrying a pregnancy of approximately 28 weeks and 3 days. The learned counsel submits that the victim herself is entirely dependent upon her parents for her day-to-day needs and care, and therefore, it would not be possible for her to carry the pregnancy to term and assume the responsibilities associated with childbirth and child-caring. 3 WP 5800-26 Accordingly, the present petition has been filed seeking appropriate directions for the medical termination of her pregnancy. 3. Pursuant to the order dated 11/06/2026, this Court directed the Medical Board at General Hospital, Jalna, to examine the victim and submit its report regarding the feasibility of termination of pregnancy beyond 24 weeks of gestation. Accordingly, the report of the said Medical Board has been received. The said report reads as thus: “ X , age 34 years, / old Female / unmarried/h/o? Sxual assault/ G1 P1(Primi) accompanied by her mother Lata Vithoba Chavan. Patient was referred for psychiatry evaluation on 04/06/2026 and seen on same day by psychiatrist Dr. Lumbini Debaje. Assit. Prof. GMC & DH Jalna and also Dr. Nitin Pawar Psychiatrist DH Jalna on Psychological evaluation she has intellectual quotient is 50 having moderate Intellectual Disability her intelligence not appropriate. As per history by her step mother she was admitted with history of sexual assault and having pregnancy of 28 weeks, (as report on that day). On asking her she is keeping mute and not able to answer question asked about pregnancy and sexual assault. On mental status examination she has difficulty in understanding and not able to answers questions about her general knowledge and calculation as 4 WP 5800-26 per her age. She is keeping mute and her affect is silly. She has no insight and judgment. Impression : Moderate intellectual disability with primi 28 wks., and Decision about MTP can be taken on risk and benefits to child, mother & child bearing with care. 4. Though the learned AGP, upon perusing the said report, contended that the medical termination of a pregnancy of 28 weeks may pose a risk to the life of the victim, but the learned counsel for the petitioner, in support of the relief sought, has placed reliance on the following judgments: A) Judgment dated 11/05/2021 passed by this Court, Principal Seat, in Writ Petition (L) No.11131 of 2021 [‘X’ (since minor through her father Mr. Jitendra Kumar Singh vs. The State of Maharashtra]; and B) Order dated 14/07/2020 passed by this court in Writ Petition No.4888 of 2020 (XYZ, through her natural guardian i.e. father Raju Dipa Koli vs. The State of Maharashtra) Likewise, the learned AGP, while assisting the Court, has also relied upon the following judgments: A) Judgment dated 17/06/2025 passed by this Court, Nagpur Bench, in Writ Petition No. 3027 of 2025, ( XYZ Minor thourgh her natural guardian father vs. Union of India & Others); and B) Order dated 24/04/2026 passed by the Hon'ble Apex Court in @ SLP (C) No. 14454 of 2026, S vs. Union of India & Others. 5 WP 5800-26 5. In the recent judgment in the case of S vs. Union of India and others (supra), the Hon’ble Apex Court has observed as follows: “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 6 WP 5800-26 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 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 7 WP 5800-26 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, recognized 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 8 WP 5800-26 constitutional rights of the pregnant woman would be breached. 11.4. 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.” Thus, in the aforesaid case, the Hon'ble Apex Court, while rebutting the order of the High Court rejected the then petitioner's request for medical termination of pregnancy and observed that in cases involving an unwanted pregnancy, greater weightage must be accorded to the welfare and well-being of the pregnant woman rather than that of the child yet to be born. 6. In the present case, the victim is the daughter of the petitioner and is a person suffering from intellectual disability. She is unable even to disclose the identity of the person who sexually assaulted her. Further, considering the fact that she herself is dependent upon her parents for care and support, it can safely be 9 WP 5800-26 inferred that she would not be in a position to independently undertake the responsibilities associated with childbirth and the care of a newborn child. It is pertinent to note that, though the Medical Board has opined that medical termination of pregnancy is not advisable, but the said opinion appears to have been rendered primarily on the ground that no fetal anomaly was detected. However, despite such opinion the members of the Medical Board have also opined that decision of MTP can be taken on risk and benefits to child, mother and child bearing with care. Therefore, having regard to the observations made by the Hon'ble Apex Court in S. v. Union of India & Others (supra), and particularly considering the mental condition of the victim daughter of the petitioner, this Court is of the view that the prayer for medical termination of pregnancy deserves to be granted. 7. The learned counsel for the petitioner has also placed reliance upon the judgment of this Court in Writ Petition (L) No. 11131 of 2021, 'X' (since minor through her father Mr. Jitendra Kumar Singh) v. State of Maharashtra (supra), with regard to the measures to be adopted in the event the child is born alive. She submitted that, in the said judgment, this Court has adequately addressed and provided for all such contingencies and eventualities. Therefore, having regard to the aforesaid judgment of this Court as well as the observations made by the Hon'ble Apex 10 WP 5800-26 Court in S. vs. Union of India & Others (supra), we are inclined to pass the following order: ORDER I. The writ petition is allowed. II. Respondent Nos. 2 and 3 are hereby directed to evaluate the petitioner's victim daughter and to safely carry out the medical termination of her pregnancy at the District Women Hospital / District General Hospital, Jalna, in accordance with the report dated 12/06/2026 submitted by the Medical Board of the said hospital, as expeditiously as possible and preferably within three days from the date of this order. III. The operating surgeons shall preserve and seal the DNA/fetal tissue samples obtained from the terminated fetus and hand them over to the Investigating Officer of Tembhurni Police Station in connection with C.R. No. 80 of 2026 for the purpose of forensic examination and DNA matching. IV. In the event that the child is born alive, the surgeons conducting the procedure shall ensure that all necessary medical facilities are provided to safeguard the life of the child. If the petitioner and her daughter are unwilling or unable to assume responsibility for the child, the State 11 WP 5800-26 and its agencies shall assume full responsibility for the child's care and welfare. V. The learned AGP is directed to forward a copy of this order to the Investigating Officer conducting the investigation in C.R. No. 80 of 2026 registered with Tembhurni Police Station. VI. All concerned parties shall act upon an authenticated copy of this order. VII. There shall be no order as to costs. ( VAISHALI PATIL-JADHAV, J. ) ( SANDIPKUMAR C. MORE, J. ) VS Maind/-