Page No. 1/13 GAHC010139802026 2026:GAU-AS:9645 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/3561/2026 BHARATI DAS MOTHER AND NATURAL GUARDIAN OF THE MINOR VICTIM- X (IDENTITY WITHHELD IN VIEW OF SECTION 72 OF THE BHARATIYA NYAYS SANHITA, 2023) WIFE OF BABAN DAS, RESIDENT OF KHARJIA DOLAIGAON-II, BONGAIGAON, ASSAM-783380. VERSUS THE STATE OF ASSAM AND 6 ORS REPRESENTED BY THE ADDTIONAL CHIEF SECRETARY TO THE GOVERNMENT OF ASSAM, HOME DEPARTMENT, DISPUR, GUWAHATI, PIN- 781006. 2:THE PRINCIPAL SECRETARY HEALTH AND FAMILY WELFARE DEPARTMENT TO THE GOVERNMENT OF ASSAM DISPUR GUWAHATI-781006 ASSAM 3:THE DIRECTOR OF HEALTH SERVICES ASSAM GOVT. OF ASSAM DISPUR GUWAHATI-781006. 4:THE JOINT DIRECTOR OF HEALTH SERVICES BONGAIGAON ASSAM PIN- 783380. 5:THE SUPERINTENDENT SWAGAT HOSPITAL DR. C.M. DAS PATH Page No. 2/13 NORTH BONGAIGAON ASSAM PIN- 783380. 6:THE SUPERINTENDENT BONGAIGAON CIVIL HOSPITAL MAYAPURI AND MAJGAON AREA MAIN ROAD (HIGHWAY-SH2) BONGAIGAON ASSAM PIN- 783380. 7:THE OFFICER-IN-CHARGE BONGAIGAON POLICE STATION DIST. BONGAIGAON ASSAM PIN- 783380 Advocate for the Petitioner : MS. D GHOSH, MS H BETALA,MR. S. K. CHAKMA Advocate for the Respondent : GA, ASSAM, BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY JUDGMENT Date : 14.07.2026 Heard Ms. D. Ghosh, learned counsel for the petitioner; Ms. M. Barman, learned Junior Government Advocate, Assam for the respondent no. 1; Mr. D. Upamanyu, learned Standing Counsel, Health & Family Welfare Department, Government of Assam for the respondent nos. 2, 3, 4 & 6; and Mr. K. Gogoi, learned Public Prosecutor, Assam for the respondent no. 7. 2. In this writ petition preferred under Article 226 of the Constitution of India, the petitioner as the mother and natural guardian of a minor named ‘X’, has sought for the following reliefs :- ‘[i] issue a writ in the nature of mandamus or any other appropriate writ[s] or order[s] Page No. 3/13 thereby directing respondents to immediately constitute a duly qualified Medical Board, if not already constituted, for examination of the daughter of the petitioner. [ii] direct the Medical Board to examine the daughter of the petitioner at the earliest, preferably within twenty-four hours, and submit its report before this Hon'ble Court and upon consideration of the Medical Board's opinion, permit medical termination of the pregnancy of the minor victim daughter of the petitioner in accordance with law. [iii] direct the respondents to provide the minor victim daughter of the petitioner immediate medical treatment, counseling and all necessary healthcare facilities. [iv] direct preservation of all necessary fetal tissue and other biological samples, if medically feasible, for the purposes of investigation and criminal trial in accordance with law and also direct that the identity of the petitioner shall remain completely confidential and shall not be disclosed in any judicial record accessible to the public or through any electronic or print media. [v] pass appropriate directions to ensure that the minor victim daughter of the petitioner receives psychological counseling and rehabilitation support through appropriate Government agencies. [vi] and or pass any other order (s)/direction(s) to the respondents as the Hon'ble Court may deem fit and proper in the interest of justice. 3. When the writ petition was moved on 02.07.2026, notice was issued to the State respondents, by making the notice returnable on 09.07.2026, in view of the nature of issues raised in the writ petition. 4. It is the case of the petitioner that the petitioner’s daughter ‘X’ is a minor, aged about 14 years. As per the Birth Certificate issued under Section 12 read with Section 17 of the Registration of Births and Deaths Act, 1969, annexed to the writ petition as Annexure-1, the date of birth of the minor is 14.05.2012. It is stated that the minor is presently studying in Class-IX at Bongaigaon Railway Higher Secondary School, Bongaigaon. Page No. 4/13 5. It is stated that the minor is a victim of successive penetrative sexual assaults. A case, Bongaigaon Police Station Case no. 127/2026 has been registered under Section 65[1], Bharatiya Nyaya Sanhita [BNS], 2023 read with Section 6, Protection of Children from Sexual Offences [POCSO] Act, 2012 in this connection. It is stated that the investigation of Bongaigaon Police Station Case no. 127/2026 is still in progress as no Charge-Sheet under Section 193, Bharatiya Nagarik Suraksha Sanhita [BNSS], 2023 has been submitted till date. 6. In the writ petition, the petitioner has annexed an Obstetric Report dated 20.06.2026 as Annexure-3 to the writ petition. As per the said Obstetric Report, an active foetus was seen when the minor was medically examined. The Report has mentioned about a live intrauterine pregnancy of 18 weeks and 4 days. It was reported that the foetus was in unstable lie with placenta Grade II maturity. 7. As on 02.07.2026, the pregnancy had exceeded 20 weeks. The petitioner had expressed urgency on the premise that the minor, apart from her parents including the petitioner, was unwilling to carry the unwanted pregnancy and expressed desire for medical termination of the pregnancy. Taking note of the said submissions advanced by the learned counsel for the petitioner and also, the submissions of the learned Standing Counsel, Health & Family Welfare Department, Government of Assam on 02.07.2026, this Court directed the petitioner to report before the Barpeta Medical College & Hospital on 04.07.2026 along with the minor for the minor’s medical examination. The competent authority in the Barpeta Medical College & Hospital was directed to constitute a Medical Board on 04.07.2026 for medical examination of the minor and thereafter, to prepare and place a Report before the Court through the learned Standing Counsel, Health & Family Welfare Department on 09.07.2026. The Medical Board was directed to examine about the feasibility of the minor undergoing the Medical Termination of Pregnancy [MTP] procedure as per the provisions of the Medical Termination of Pregnancy [MTP] Act, 1971. 8. In deference to the Order dated 02.07.2026, a detailed clinical evaluation of the Page No. 5/13 minor was carried out by a Medical Board of five medical experts, constituted by the competent authority in the Barpeta Medical College & Hospital, on 04.07.2026 and after examination, the Medical Board prepared a Report, which has been placed by Mr. Upamanyu, learned Standing Counsel, Health & Family Welfare Department before this Court today. The copy of the said Examination Report of the Medical Board is kept with the case record by marking it as Document ‘X’. 9. The relevant excerpts of the Examination Report of the Medical Board, which consisted of five medical experts, are quoted hereinbelow for ready reference :- Based on the history obtained, clinical examination, ultrasonography findings, and relevant laboratory investigation reports, it was confirmed that the minor girl is carrying a live intrauterine pregnancy of approximately 20 weeks of gestational age. During the course of examination and counseling, the minor girl, along with her legal guardian [mother], expressed her unwillingness to continue the pregnancy. After careful consideration of the clinical findings and the circumstances of the case, the Medical Board is of the opinion that continuation of the pregnancy is likely to cause grave mental and physical injury to the minor girl. Accordingly, the Board is of the considered opinion that medical termination of pregnancy may be permitted, subject to the applicable provisions of the Medical Termination of Pregnancy Act, 1971, as amended, and in compliance with the directions of the Hon'ble Court. Opinion of the Medical Board : The Medical Board unanimously concludes that the minor girl is medically fit to undergo Medical Termination of Pregnancy [MTP] and recommends that the procedure may be carried out in accordance with the provisions of the Medical Termination of Pregnancy Act, 1971 [as amended], after obtaining all requisite informed consent and ensuring adherence Page No. 6/13 to standard medical protocols. 10. Mr. Upamanyu has placed another Communication dated 13.07.2026 received by him from the Principal-cum-Chief Superintendent, Barpeta Medical College & Hospital, Barpeta. The Communication is also kept with the case record by marking it as Document ‘Y’. 11. As per the Communication dated 13.07.2026, the MTP of the minor can be carried out at the Barpeta Medical College & Hospital. It is mentioned that it is for the investigating authority to carry the product of conception after the MTP procedure for submission to the Forensic Science Laboratory, Guwahati for preservation and further examination. 12. Mr. Gogoi, learned Public Prosecutor has submitted that since the investigation of Bongaigaon Police Station Case no. 127/2026 is presently in progress, the product of conception arising out of the proposed MTP procedure may constitute relevant evidence for the purpose of a fair and effective investigation. Therefore, if this Court directs MTP as per the standard medical protocol then a direction may also be made for taking necessary steps for protection and preservation of the terminal foetus and other biological materials, as may be medically and scientifically required to be preserved, at the time of the MTP procedure, in accordance with established medical protocol. 13. The Medical Termination of Pregnancy [MTP] Act, 1971 has provided for the termination of certain pregnancies by registered Medical Practitioners and for matters connected therewith or incidental thereto. As per the definition provided in Section 2[e], ‘termination of pregnancy’ means a procedure to terminate a pregnancy by using medical or surgical methods. 14. As per sub-section [2] of Section 3 of the MTP Act, subject to the provisions of sub- section [4], a pregnancy may be terminated by a registered medical practitioner,- [a] Page No. 7/13 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. Explanation 2 to Section 3[2] has mentioned that 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. 15. The other relevant sub-sections of Section 3 and sub-section [1] of Section 5 of the MTP Act are quoted hereinbelow for ready reference :- Section 3. When pregnancies may be terminated by registered medical practitioners.- * * * * * [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. [2D]. The Medical Board shall consist of the following, namely :- [a] a Gynaecologist; [b] a Paediatrician; [c] a Radiologist or Sonologist; and Page No. 8/13 [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. [3] In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in sub-section [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. * * * * * Section 5. Sections 3 and 4 when not to apply.- [1] The provisions of Section 4, and so much of the provisions of sub-section [2] of Section 3 as relate to the length of the pregnancy and the opinion of not less than two registered medical practitioners, shall not apply to the termination of a pregnancy by a registered medical practitioner in a case where he is of opinion, formed in good faith that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman. 16. A three-Judge Bench of the Hon’ble Supreme Court of India in A [Mother of X] vs. State of Maharashtra and another, 2024 INSC 371, has observed that Section 5 of the MTP Act has prescribed that a pregnancy may be terminated, regardless of the gestational age, if the medical practitioner/Medical Board is of the opinion, formed in good faith, that the termination is immediately necessary to save the life of a pregnant person. Section 3[2B] of the MTP Act has stipulated that no time limit shall apply on the length of the pregnancy for terminating a foetus with substantial abnormalities. The Hon’ble Court has observed that the legislation has made a value judgment in Section 3[2B] of the MTP Act that a substantially abnormal foetus would be more injurious to the mental and physical health of a woman than any other circumstance. In the case dealt with by the Hon’ble Supreme Court of India, the jurisdictional High Court denied the Page No. 9/13 minor daughter of the appellant permission to terminate her pregnancy, who was about 14 years of age and was alleged to have been subjected to sexual assault. In that context, the Hon’ble Court has observed that the circumstance against which the provision in Section 3 [2B] of the MTP Act is comparable is rape of a minor. The Hon’ble Court has further observed that to deny the same enabling provision of the law would appear prima facie unreasonable and arbitrary. The Hon’ble Court has observed that value judgment of the legislation does not appear to be based on scientific parameters but rather on a notion that a substantially abnormal foetus would inflict the most aggravated form of injury to the pregnant woman. The Hon’ble Court has expressed view that 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. It has been held that the sole and only consideration which must weigh with the Court is the safety and welfare of the minor. The Court has to be conscious of the trauma which the minor is likely to face in having to continue the pregnancy and if the minor is ready and willing to accept the decision of her parents and if the same is in her best interest, performing a procedure for termination of an advanced pregnancy is subject to risk involving the well-being and safety of the minor. 17. In Suchita Srivastava vs. State [UT of Chandigarh], [2009] 9 SCC 1, the Hon’ble Supreme Court has expressed that the right of a woman to have reproductive choice is an insegregable part of her personal liberty, as envisaged under Article 21 of the Constitution of India. Further, the consent of the pregnant person in matters of reproductive choices and abortion is paramount. 18. In A [Mother of X] [supra], the Hon’ble Court has concluded that the consent of a pregnant person in decisions of reproductive autonomy and termination of pregnancy is paramount. In case there is a divergence in the opinion of a pregnant person and her guardian, the opinion of the minor must be taken into consideration as an important Page No. 10/13 factor in enabling the Court to arrive at a just conclusion. 19. The Hon’ble Supreme Court of India in XYZ vs. State of Gujarat and others, 2023 SCC Online SC 1573, has held that :- Pregnancy outside marriage, in most cases, is injurious, particularly, after a sexual assault / abuse and is a cause for stress and trauma affecting both the physical and mental health of the pregnant woman the victim. Sexual assault or abuse of a woman is itself distressing and sexual abuse resulting in pregnancy compounds the injury. This is because such a pregnancy is not a voluntary or mindful pregnancy. 20. A three-Judge Bench of the Hon’ble Supreme Court of India in Murugan Nayakkar vs. Union of India and others, [2020] 19 SCC 806, while considering the case of a minor petitioner survivor of alleged rape and sexual abuse, held that it would be appropriate that termination of pregnancy be allowed in accordance with the opinion of the Medical Board constituted by an Order of the Court to the effect that termination of pregnancy should be carried out. 21. From the facts and circumstances obtaining in the present case, as narrated above, it has emerged that [i] the minor is stated to be a victim of penetrative sexual assault; [ii] the medical opinion given by the Medical Board, which consisted of five experts, is that the minor is medically fit to undergo Medical Termination of Pregnancy [MTP] procedure; [iii] the Medical Board has recommended for carrying the MTP procedure in accordance with the provisions of the MTP Act; [iv] continuation of the pregnancy is likely to aggravate the mental and physical injury to the minor; and [v] the minor, and her mother and natural guardian [the petitioner], have expressed their unwillingness to continue with the pregnancy; this Court deems it proper and appropriate, in the interest of justice, to allow this petition permitting Medical Termination of Pregnancy, subject to the following Page No. 11/13 conditions :- [i] The procedure of Medical Termination of Pregnancy [MTP] will be carried out by an expert team of doctors. [ii] Prior to carrying out the Medical Termination of Pregnancy [MTP] procedure, the minor and the petitioner are to be explained about all the factors associated with the Medical Termination of the minor’s Pregnancy for obtaining the informed consent, as prescribed in the MTP Act. [iii] The procedure for Medical Termination of Pregnancy [MTP] will be carried out by the expert team of doctors at the Barpeta Medical College & Hospital, Barpeta as the MTP Act, preferably on 17.07.2026, or any other nearest date, if the team of doctors finds that it would not be feasible to carry out the MTP procedure on 17.07.2026 for any medical or other reason. In such a situation, the next date fixed for MTP procedure is to be duly communicated to the petitioner and the respondent no. 7. [iv] For the purpose of carrying out Medical Termination of Pregnancy [MTP] in terms of the provisions of the Medical Termination of Pregnancy Act, 1971, the petitioner and the minor shall report before the Principal-cum-Chief Superintendent, Barpeta Medical College & Hospital, Barpeta at 10-30 a.m. on 17.07.2026. [v] Every care and caution will be taken by the team of doctors and the Barpeta Medical College & Hospital authorities while terminating the pregnancy. All medical attention and other medical facilities including that of a presence of an experienced Obstetrician, a Gynecologist, a Radiologist and other required doctors are to be ensured at the time of carrying the Medical Termination of Pregnancy [MTP] procedure. Page No. 12/13 [vi] The post-operative care, up to the extent required, will be extended to the minor. [vii] The respondent no. 7 shall facilitate safe transportation of the minor and the petitioner, preferably both her parents, from their place of residence to the Barpeta Medical College & Hospital on 17.07.2026; or on any other date, as mentioned in [iii] above; and also transportation of the minor and their parents from Barpeta Medical College & Hospital back to their place of residence after the release of the minor from the Barpeta Medical College & Hospital, Barpeta. [viii] The doctors will also ensure that the terminal foetus and/or other biological materials are collected and preserved for further examination by following the standard medical protocol. [ix] Immediately after collection and preservation of the terminal foetus and/or biological materials arising out of the Medical Termination Pregnancy [MTP] procedure, the same shall be handed over to the respondent no. 7 under proper seal, level and documentation after maintaining proper records and chain of custody. [x] Upon receipt of such terminal foetus and/or biological materials, the respondent no. 7 shall take immediate steps to forward the same safely to the Forensic Science Laboratory, Guwahati for proper preservation and for further examination, as may be necessary, in accordance with law. [xi] The State is to bear all the expenses in connection with all the procedure and all medical expenses required in the interest of the safety and welfare of the minor. The State shall also provide and extend all facilities for further medical care post-termination, Page No. 13/13 if any, required. This is ordered to ensure the best interest of the minor. 22. A copy of this order is to be furnished to both Mr. Gogoi and Mr. Upamanyu for taking necessary steps from their end. JUDGE Comparing Assistant Digitally signed by Ananta Konwar Date: 2026.07.15 17:29:41 +05'30'