Moot Problem – Freshers Moot 2019

NUALS, Kochi

Tranquil is an ashram run by a special religious community in the State of Kerala for
deprived groups of people. All members of the ashram strongly believe in the life of solitude.
They have to remain unmarried and refrain from sexual relationships. The ashram had fifty
believers, who were taking care of about seventy-five destitute. The inmates including the
destitute were to follow the practices of the religion of the ashram. In appreciation of their
charity work, the State respected the religious group.

The headship of the ashram was to be on a male member, determined through

nomination. Wixi is the present religious head of the ashram. Women members of the ashram
were known as Bhagini and there were eighteen bhaginis in the ashram. All of them were
entrusted with the responsibility of extending care and protection to the inmates of the ashram.

Wixi had earlier been a prisoner. He happened to meet the then head of this ashram when
the ashram members visited the central prison as a part of their social activities. Inspired by the
ideals of the group, Wixi, on his release from the prison, just walked into the ashram and became
a member of that religious group.

Within months, Wixi became the most trusted disciple of the then religious head and on
his death, Wixi got enrolled as the next head at the age of forty-two. Wixi was very fond of one
of the young Bhaginis, Ms. R. Wixi appointed Ms. R as his secretary with some ill intentions.

Wixi exploited Ms. R in all ways and took her everywhere he went. He used photographs
for blackmailing her. In some time, Ms. R became pregnant. When Wixi came to know about
this, he took her to the Tranquil Hospital run by one of the believers. He asked her to conduct all
required tests and undergo an abortion if she was pregnant. In the tests, Dr. Margret Alexi
diagnosed that the pregnancy had advanced by five weeks. The doctor enquired about the
pregnancy, but Ms. R provided nothing in detail. Based on the strong conviction of the patient,
Dr. Alexi terminated her pregnancy using a simple procedure.

Following this, Wixi kept Ms. R away from his office for a few months. On her return,
she was again sexually exploited several times. As a result, she again became pregnant after a
year. This time, she managed to escape from the ashram. After a month, Ms. R sought asylum in
the Centre for Protection of Wandering Women (CPWW), an NGO instituted for the care and
protection of wandering women. There, Ms. R remained for three and half months, concealing
her pregnancy. However, she subsequently narrated the entire incident to the Chairperson of the
NGO, Smt. Kanthimathi Nandhikesan. She was sent for counseling, but was confused as to
terminating her pregnancy. She also revealed her previous experience to the counselor and Smt.
Kanthimathi, and both of them advised her to undergo Medical Termination of Pregnancy
(MTP). After repeated requests, Ms. R made up her mind to go for MTP at the District Hospital.
 By this time, her pregnancy had reached 19 weeks and the doctors were not ready to go
for MTP. Ms. R and Smt. Kanthimathi claimed termination of pregnancy as a matter of right. In
turn, the doctors asked them to approach a court of law or other appropriate forums. The CPWW
approached the District Collector with a complaint regarding the irresponsive approach of the
District Hospital authorities. The District Collector required the District Hospital to constitute a
medical board and to submit a report on the possibilities of MTP. One of the doctors on the
board, Dr. Pavan Kumar, himself an obstetrician of high reputation, pointed out that even though
the pregnancy had exceeded 24 weeks, it could be terminated through the 'partial birth abortion'
method, which was devoid of any risk, thanks to the advancement of science and technology.
However, all other members of the board objected to MTP, as it had advanced beyond 24 Weeks.
The collector required the Hospital authorities to comply with the majority opinion. Aggrieved
by this, Smt. Kanthimathi approached the High Court of Kerala with two prayers: seeking
permission for the termination of pregnancy even if the period has exceeded the statutory
bounds; and to hold the Medical Termination of Pregnancy Act, 1971 and the impugned
provisions of IPC penalizing causing miscarriage as unconstitutional.

In the meanwhile, the matter relating to this case was being widely reported by the media.
Wixi was arrested, and an FIR lodged. In the course of the investigation, the police also
proceeded against Dr. Margret Alexi for conducting abortion in the first instance. The doctor was
also booked for abetting the offence committed by Wixi. In turn, Dr. Alexi, approached the
Hon'ble High Court of Kerala to quash the FIR filed against her, claiming it to be violative of her
professional rights and frivolous in nature. She also joined the petition filed by Smt.
Kanthimathi, praying that the Indian law on abortion was outdated and violative of the rights of
women and hence unconstitutional.

The issue became a matter of day to day discussion in all public platforms. There were
apprehensions that quashing of abortion laws was not so long away in the changed socio-legal
and medical circumstances. Many articles in this direction were published in newspapers and
magazines. Agitated by this, Love and Care for Children, Kerala (LACCK), another NGO
wanted to join the petition pending in the High Court for defending the rights of an unborn child
under Article 21 of the Constitution of India. LAACK also required for the abolition of all
provisions enabling MTP in India so as to protect the right to life of an unborn child. According
to LAACK, all terminations of pregnancy, unless to prevent the death or physical injury of a
pregnant woman, were violative of the rights of an unborn child, and to that extent, Indian laws
on abortion were unconstitutional.

The High Court of Kerala posted all the above petitions for a joint hearing on March 2, 2019.
Counsels appearing for the parties are permitted to raise any other issue pertinent to this case.