IN THE HON’BLE DISTRICT COURT OF ERNAKULAM

ORGINAL SUIT (CIVIL) NO: 2322/2018

IN THE MATTER OF:

JAYESH……………………………………PETITIONER

DOCTOR X & ABC FERTILITY CLINIC…………RESPONDENT

WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONER

COUNSEL FOR PETITIONER

JOHN V BENSON

ROHAN MOHANAN

DILEEP
Statement of facts:

Jayesh aged 40years was a government employee and was married to

Minu aged 35 years. They had married 10 years ago and had no children. They
went to a private infertility clinic in Kochi after seeing their advertisement in
news paper .Dr Raj was the senior doctor there and the couple underwent a
series of investigation .the doctor concluded that they had serious infertility
problems and suggested a particular innovative treatment. One of the doctors in
the team explained the benefits and risks of the treatment as they were not
following the traditional mode of treatment .Jayesh and Minu agreed for the
treatment and signed a consent form for undergoing the same.

As the treatment was expensive they took a second opinion. There it was found
out that the medicines given to Minu for treatment were actually given for
treating cancer .They were recently used for infertility problems and were not
tested for all possible side effects .but they continued with the treatment for two
years and then Minu became pregnant. At the time of delivery the doctor
informed Jayesh that Minu needed a surgery and so he signed a consent form.
The form stated that all procedures to be administered were explained and the
patient had agreed to do anything required by the doctor before during or after
the surgery.

During the surgery Minu becomes so weak that in order to save the child the
doctor removes the entire reproductive system of Minu .unfortunately the child
is born physically handicapped .Jayesh is before the appropriate forum claiming
compensation against the doctor and the hospital.
 CASE LAWS SITED

 CASE LAWS SITED UNDER ISSUE 2

 Achutrao Haribhau Khodwa V. State Of Maharashtra (Air 1996 Sc)

 Malay Kumar Ganguly V. Dr. Sukumar Mukherjee (2009 Scc)

 Samira Kohli V Prabha Manchandra And Ors( 2008 Sc)

 CASE LAWS SITED UNDER ISSUE 3

 Kunal saha vs a.m.r.i sc 1998..
 Hii chii kok v Ooi peng jin london lucien [hii chii kok],
 Montgomery v. Lanarkshire Health Board (2015 UK SC)
 Bolitho v City and Hackney Health Authority ( 1997)

Mrs. Aparna Dutta Vs Apollo Hospital Enterprises Ltd (Madras HC 2002)

 ISSUES SUBMITTED

1. That the suit is maintainable.

2. That the consent given is not valid.

3. That there is medical negligence.

4. That the petitioner is entitled to relief.

 THAT THE SUIT IS MAINTINABLE

It was submitted that the Hon’ble District Court of Ernakulum has the
jurisdiction under its original ordinary civil jurisdiction to try the suit
filed by Jayesh represented by Minu for claiming compensation for
injuries suffered by his wife (Minu) seeking relief under law of torts.(sec
20 & sec 6 of cpc)

 THAT THE CONSENT IS NOT VALID

In performing surgery the most important criteria to be followed by
doctors is to inform the patient about all the inherent risks, modes of
treatment, alternatives and after providing all the relevant information the
very important essence is the consent given towards the type of surgery
which should be informed consent. It doesn’t give any sense as to signing
a set of consent forms for surgery would amount to a valid consent
human body cannot be made a platform for experimenting by giving any
kind of medicines and touching the body without the consent will be hit
by article 21 of Indian constitution.
  POINTS AND DOCTRINES RELIED FOR ARGUMENT UNDER ISSUE

 Doctrine of best interest

 Reasonable patient test
 Error of judgment
 Principle of causation or but for test

 THAT THERE IS MEDICAL NEGLIGENCE

As a medical professional the doctor owes a duty to the patient who approaches him. There
exists a fiduciary relationship between both. The medical judgment made by the doctor
should not in any manner cause injury to a patient and if so doctor will be negligent as there
is a breach of duty. In this case the injury was caused due to the negligent act of the doctor
and the injury would not be caused if the doctor has performed his professional duty with at
most care and caution. Thus the act of the doctor amounts to negligence and will be liable to
pay for damages caused by such act under law of torts the hospital authorities and the
management in whose employment the doctors are working shall also be liable for the acts of
the employees which comes under principle of resipsa locuter and vicarious liability.

 POINTS OF ARGUMENTS

Tests for negligence

 Bolam test
 Bolitho test
 Montgomery test
 Modified Montgomery test
 doctrine of resipsa locuiter and vicarious liability
DECISION
On the light of the arguments advanced and submissions made the court pointed out the
relevance of medical negligence and consent by the patient towards the treatment by quoting
a decided case of HUCKS VS COLE. The court observed that doctors have a duty towards a
patient who approaches him and to protect the interest of the patient and warned the defendant
council regarding the rights of the patients .thus court held that since the plaintiffs council is
unable to prove beyond doubts the circumstances that there is negligence thus decided that
plaintiff is not entitled to relief and hence suit is dismissed.
 MOOT 4

JUDGEMENT

Section 497 of the Indian Penal Code, we find that it grants relief to the wife by treating her
as a victim. It is also worthy to note that when an offence is committed by both of them, one
is liable for the criminal offence but the other is absolved. It seemsto be based on a societal
presumption. Ordinarily, the criminal law proceeds on gender neutrality but in this provision,
as we perceive, the said concept is absent. That apart, it is to be seen when there is
conferment of any affirmative right on women, can it go to the extent of treating them as the
victim, in all circumstances, to the peril of the husband. Quite apart from that, it is
perceivable from the language employed in the Section that the fulcrum of the offence is
destroyed once the consent or the connivance of the husband is established. Viewed from the
said scenario, the provision really creates a dent on the individual independent identity of a
woman when the emphasis is laid on the connivance or the consent of the husband. This
tantamounts to subordination of a woman where the Constitution confers equal status. A time
has come when the society must realise that a woman is equal to a man in every field.
Section 497 of IPC is a violation of Articles 14 ,19 and 21 and hence declared
unconstitutional.
 BEFORE THE HON’BLE SUPREME COURT OF INDIA

ORIGINAL WRIT JURSDICTION

PL NO. OF 2018

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

In the matter of
ABC WOMEN EMPOWERMENT SOCIETY ………… Petitioner
Versus
UNION OF INDIA………………………. Respondent

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS

COMPANION JUSTICES OF THE SUPREME COURT

MEMORANDUM ON BEHALF OF THE RESPONDENT

MOOT COURT SUBMISSION

JOHN V BENSON
DILEEP
ROHAN MOHANAN
STATEMENT OF FACTS:

Petitioner files public interest litigation against conducting beauty contests

under article 32 of Constitution of India

TABLE OF CASES REFFERED

 Amitabh Bachan Corporation Limited Vs Mahila Jagran Manch And Ors.

 State Vs Ram Singh And Ors. ,State Through Reference Vs Ram Singh And
Ors. (NIRBHAYA CASE).1
 AJAY GOSWAMI VS UNION OF INDIA AND Ors.
 Chandra Kant Kalyan Das Kakodkar Vs State Of Maharshtra And Ors
 Samaresh Bose And Another Vs Amal Mitra And Anr
 Ranjit D Udeshi V State Of Maharashtra AIR 1965 SC

ISSUES

1. WHETHER BEAUTY CONTEST FALLS UNDER THE MEANING OF SEC- 2(C)

OF INDECENT REPRESENTATION OF WOMEN (PROHIBITION) ACT, 1986?

2. WHETHER BEAUTY CONTEST OVERRIDES ARTICLE 14,19,21 OF

CONSTITUTION?

SUMMARY OF SUBMISSIONS

1. WHETHER BEAUTY CONTEST FALLS UNDER THE MEANING OF SEC-

2(C) OF INDECENT REPRESENTATION OF WOMEN (PROHIBITION)
ACT, 1986?

No ,the beauty contest in no way indecent or derogatory or denigratng women or likely to

deprave, corrupt or injure the public morality morals .Beauty means "a combinaton oo
qualites such as shape, colour etc., that pleases the aesthetc senses especially site, a
combinaton oo qualites that pleases the intellect oo moral sense. Beaauty is meant only oor
exploraton oo beauty and there is no law or no logic to object it.

1
 2. WHETHER BUEATY CONTEST OVERRIDES ARTICLE 14,19,21 OF
CONSTITUTION?
No, beauty contest is not only oor women and but there are similar contest oor men also ,So
it does not violate Artcle 14 oo the Consttuton. .nder artcle 19(1) (a) every citien has
oreedom oo speech and expression and the restricton imposed by the respondent
authorites is unreasonable restricton on the right guaranteed under Artcle 19(1) (a)
because the proposed beauty contest is neither indecent nor immoral thereoore no
restricton under sub clause 2 (a) (1) can be imposed. Artcle 21 provides that no person shall
be deprived oo his lioe and personal liberty except according to the procedure established by
the law right to lioe includes right to livelihood and right to live in human dignity and beauty
contest like Miss India is a source oo earning and one oo the means oo livelihood with dignity.

 It also does not come under section 354 of Indian penal code

CONCLUSION

A beauty queen or a winner in a beauty contest cannot be better than a winner in any other
contest in a particular situation, among the participants and judged by certain individuals to
choose the winner in that contest and not as a person called beautiful among all the human
beings for all the time. It may depend upon the facts and circumstances of each case of
contest. For instance, it may depend upon the manner and the method in which the contest
is held, the quality and the quantity of the participants and the faculty or the expertise of the
persons to select called Judges.

DECISION

A beauty contest which may not be in its true meaning in the sense will not be illegal. The
court observed that it is also relevant and exponent to hold without any reservation that if a
beauty contest find to offend the dignity of a women it would be offending to the
fundamental rights guaranteed under constitution of India. Held the contest is not violative of
fundamental rights and does not fall under section 2 (c) of indecent representation of women
act and does not override the provisions of section 354 of IPC thus dismissing the suit