This order decides only this petitioner's plea for termination of pregnancy. It does not decide the pending criminal case, and it directs that the foetal tissue be preserved for DNA testing for that case.
- Case
- Minor P thr her Mother A v. State & Anr.
- Court
- High Court of Delhi
- Decision
- Citation
- 2026:DHC:9223
- Bench
- Mini Pushkarna
- Judgment by
- Mini Pushkarna, J. (oral)
- Case numbers
- W.P.(CRL) 3287/2026
- Outcome
- Writ petition under Article 226 read with Article 21 and Section 528 BNSS allowed; the Court permits medical termination of pregnancy subject to seven safeguards.
What the Court decided
On 15 October 2026, Justice Mini Pushkarna of the Delhi High Court allowed a writ petition filed on behalf of a 16-year-old rape survivor, through her mother, seeking medical termination of a pregnancy at approximately 31 weeks of gestation — well beyond the 24-week limit prescribed by the Medical Termination of Pregnancy Act, 1971.
The Court permitted the termination in the best interest of the minor survivor, holding that while exercising jurisdiction under Article 226 or Article 32, constitutional courts are not constrained by the statutory limitations under the MTP Act and must primarily consider the welfare, dignity, bodily integrity and reproductive autonomy of the pregnant woman, particularly in cases involving minors and unwanted pregnancies.
The facts before the Court
The petition was filed under Article 226 read with Article 21 of the Constitution and Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The petitioner's counsel submitted that she is a minor girl of 16 years, a victim of rape, at approximately 31 weeks of gestation, and that both she and her mother wished to terminate the pregnancy since its continuation would cause grave mental injury.
The State's counsel placed before the Court the report of the Medical Board constituted at Lady Hardinge Medical College and Hospital: the minor was physically fit to undergo termination, but the baby was likely to be born alive. The mother, present in person, instructed counsel that the family wished to proceed with the termination forthwith.
The precedents the Court relied on
The Court noted that the Supreme Court has permitted termination beyond the 24-week limit in several cases. It reproduced at length the Supreme Court's judgment of 24 April 2026 in S v. Union of India (SLP(C) No. 14454/2026), where termination at 28 weeks was allowed: the Supreme Court held that reproductive choice is an integral facet of personal liberty and privacy under Article 21, that no woman — much less a minor rape survivor — can be compelled to carry an unwanted pregnancy to full term merely because the statutory limit is crossed, and that a lack of remedy under a statute does not bar a constitutional remedy.
The Court also cited this Court's own decisions: Minor S (Thr. Father B) v. State & Anr. (2025:DHC:2710, 17 April 2025), allowing termination beyond 27 weeks; Minor S thr guardian B v. State, W.P.(Crl) 2763/2026 (8 September 2026), allowing termination beyond 30 weeks; Mrs. X v. GNCTD (6 December 2022), allowing termination at 33 weeks; Minor R thr Mother H v. State (2023 SCC OnLine Del 383), allowing termination at 24 weeks and 5 days; and the Supreme Court's decision in Venkatalakshmi v. State of Karnataka (2017), allowing termination at 26 weeks.
The seven safeguards
Alongside the permission, the Court issued seven directions: the procedure must be carried out by competent doctors per the MTP Act and its Rules and Guidelines; a complete record must be maintained by the Medical Board; Lady Hardinge Medical College must preserve the foetal tissue for DNA testing for the registered criminal case; the State must bear all expenses including post-operative care; if the child is born alive, it must receive medical support and be kept in an incubator, with intimation to the Child Welfare Committee; the child may be given in adoption per prescribed procedure if the minor and her family so wish; and the minor's identity must be strictly protected — no name, address, photographs or medical records to be disclosed beyond what the law authorises.
The Court further directed that compensation under the Delhi Victim Compensation Scheme, 2018, when released, be kept in a fixed deposit until the minor attains majority.
BANTHRY ANALYSISFor law students
This judgment is a textbook application of the S v. Union of India (April 2026) framework: where the statutory remedy under the MTP Act runs out, the constitutional remedy under Article 226 begins. Note the structure the Court follows — (1) medical fitness and consent established on record, (2) the constitutional principle from binding precedent, (3) a chain of factually comparable permissions (27, 30, 33 weeks), and only then (4) permission plus safeguards.
Two features are worth studying. First, the live-birth contingency: the Medical Board said the baby was likely to be born alive, and the Court did not treat that as a reason to refuse — it built the answer into directions V and VI (incubator, CWC, adoption option). Second, the criminal-procedure interface: termination orders in rape cases routinely double as evidence-preservation orders (here, direction III on foetal tissue for DNA testing). MTP jurisprudence and the criminal trial are decided on separate tracks, but the order serves both.
READING PROMPTSQuestions for a closer reading
- On what constitutional reasoning does the Court permit termination beyond the MTP Act's 24-week limit?
- What weight did the Court give to the Supreme Court's decision in S v. Union of India (24 April 2026), and what did that decision hold?
- What safeguards did the Court impose alongside the permission, particularly regarding the live-birth possibility and the minor's identity?
