Sie sind auf Seite 1von 35

TEAM CODE: NS-26

1ST NATIONAL HUMAN RIGHTS COMMISSION- SIKKIM GOVERNMENT LAW COLLEGE ALL INDIA
MOOT COURT COMPETITION 2018

Before

THE HONOURABLE SUPREME COURT OF PEPSU

UNDER

ARTICLE 136 OF THE CONSTITUTION OF PEPSU

READ WITH

ORDER XXI RULE 3 (1) (a) OF THE SUPREME COURT RULES, 2013

SPECIAL LEAVE PETITION (CIVIL) ___/2018

(CIVIL APPELLATE JURISDICTION)

:IN THE MATTER OF:

NARI KALYAN SANGATHAN (NGO) …APPELLANT

VERSUS

STATE OF PEPSU …RESPONDENT

MEMORANDUM ON BEHALF OF THE APPELLANT

DRAWN AND F ILED BY THE COUNSEL ON BEHALF OF THE APPELLANT: NARI KALYAN S ANGATHAN
MEMORANDUM ON BEHALF OF APPELLANT

TABLE OF CONTENTS

INDEX OF AUTHORITIES ................................................................................................................. 4


STATEMENT OF JURISDICTION ....................................................................................................... 9
STATEMENT OF FACTS ................................................................................................................. 10
ISSUES FOR CONSIDERATION ....................................................................................................... 12
SUMMARY OF ARGUMENTS .......................................................................................................... 13
WRITTEN SUBMISSION ................................................................................................................. 15
1. That the Special Leave Petition Filed with The Hon’ble Supreme Court is
Maintainable. ............................................................................................................................... 15
1.1. That there Exists Grave Miscarriage of Justice. ......................................................... 15
1.2. That there Exists Question of Public Importance. ...................................................... 16
1.3. That there Exists Substantial Question of Law. ......................................................... 17
1.4. That there Exists No Alternative Remedies. .............................................................. 18
2. That Termination of Pregnancy can be Allowed After 20 Weeks of Pregnancy if
Victim Gives Consent for Termination. .................................................................................... 19
2.1. That the Victim’s Consent is Valid to Terminate her Pregnancy. .............................. 19
2.2. That Mild Retardation Doesn’t Affect the Consent of Victim. .................................. 20
2.3. That Termination of Pregnancy can be Allowed After 20 Weeks. ............................ 21
3. That A 24 Week Pregnant HIV Positive Victim can be Allowed to Terminate her
Pregnancy Legally. ...................................................................................................................... 23
3.1. That Pregnancy can be Terminated After 24 Weeks. ................................................. 24
3.2. That Termination of Pregnancy can Prevent Health Hazard. ..................................... 26
4. That an Exemption Can be Allowed to the Victim to Terminate her Pregnancy which
has Already Passed the Mandatory Period Due to the Time Taken for Following Legal
Procedures. .................................................................................................................................. 29
4.1. That Concept of Best Interest of the Victim is Applicable here. ................................ 30
5. That Victim is Entitled to Get Compensation for Negligence for Impediment Caused
by Authorities in Terminating the Pregnancy.......................................................................... 31
PRAYER ......................................................................................................................................... 34

1
MEMORANDUM ON BEHALF OF APPELLANT

LIST OF ABBREVIATIONS

%......................................................................................................................................Percent

&............................................................................................................................................And

+ve...................................................................................................................................Positive

¶...................................................................................................................................Paragraph

AIR..................................................................................................................All India Reporter

Annex. .........................................................................................................................Annexure

Anr. ................................................................................................................................Another

Art. ...................................................................................................................................Article

Bom. ..............................................................................................................................Bombay

Cal...................................................................................................................................Calcutta

Cl. .....................................................................................................................................Clause

Co. ................................................................................................................................Company

Cr. ..................................................................................................................................Criminal

Del.......................................................................................................................................Delhi

edn. ..................................................................................................................................Edition

Govt. ........................................................................................................................Government

HC..............................................................................................................................High Court

HIV..........................................................................................Human Immunodeficiency Virus

Hon'ble......................................................................................................................Honourable

i.e. .....................................................................................................................................That Is

Id. .....................................................................................................................................Ibidem

IPC..................................................................................................................Indian Penal Code

IR..............................................................................................................International Reporter

ITR...............................................................................................................Income Tax Reports

2
MEMORANDUM ON BEHALF OF APPELLANT

Ltd. ..................................................................................................................................Limited

Mad..................................................................................................................................Madras

MANU........................................................................................................................Manupatra

MTPA...................................................................Medical Termination of Pregnancy Act, 1971

Mum. ..............................................................................................................................Mumbai

NTWP...............................................................................National Trust for Welfare of Persons

No. ..................................................................................................................................Number

Ors. ...................................................................................................................................Others

PTSD...........................................................................................Post Traumatic Stress Disorder

RCR...............................................................................................................Rent Law Reporter

§. ......................................................................................................................................Section

SC.........................................................................................................................Supreme Court

SCC............................................................................................................Supreme Court Cases

Supp. ...................................................................................................................Supplementary

SCR.......................................................................................................Supreme Court Reporter

TMP.......................................................................................................................Trimethoprim

SMX.............................................................................................................Sulphamethoxazole

UOI.......................................................................................................................Union of India

v. .......................................................................................................................................Versus

Viz. .................................................................................................................................Namely

WHO.................................................................................................World Health Organization

3
MEMORANDUM ON BEHALF OF APPELLANT

INDEX OF AUTHORITIES

CASES

A v. Union of India, WP (C) No. 728 (2017). .............................................................................. 25

A.V Papayya Sastry v. State of A.P., A.I.R. SC 1546 (2007). ..................................................... 17

Balakrishna v. Rmaswami, A.I.R. 1965 195 SC (1965). .............................................................. 17

Balwant Singh v. Mool Chand, A.I.R. SC 129 (1971). ................................................................ 15

Balwinder Kaur v. State of Haryana and Ors., MANU PH 4990 (2015). .................................... 29

Bashir Khan v. State of Punjab and Haryana and Anr., 4 RCR (Cr.) 148 (2014). ....................... 30

Beant Singh v. Union of India, A.I.R. SC 388 (1977). ................................................................. 15

Bhavikaben v. State of Gujarat and Ors., 3 RCR (C) 312 (2016)................................................. 26

Bodhisattwa Gautam v. Subhra Chakraborty, A.I.R. 922 (1996). ................................................ 27

C.C.E v. Standard Motor Products, A.I.R. SC 1298 (1979). ........................................................ 17

Chairman Railway Board and Ors. v. Chandrima Das and Ors., A.I.R. SC 988 (2000). ............. 33

Charu Khanna v. Union of India, A.I.R. SC 839 (2015). ............................................................. 32

D. Rajeswari v. State of Tamil Nadu and Ors., CriLJ 3795 (1996). ............................................. 20

D.K. Basu v. State of West Bengal, 1 SCC 416 (1997)................................................................ 33

Dale & Carrington Invt. Ltd. v. P.K. Prathapan, A.I.R. SC 1624 (2005). .................................... 17

Edward v. Canada, A.C. 124, (1930). ........................................................................................... 16

Gaurav Kumar Bansal v. Union of India, WP (C) No. 444 (2013). ............................................. 31

Gobind v. State of Mdhya Pradesh and Anr, 2 SCC 148 (1975). ................................................. 18

Hull v. Mckenna, I.R. 402, (1926). ............................................................................................... 15

4
MEMORANDUM ON BEHALF OF APPELLANT

INDIA CONST. art. 136. .............................................................................................................. 15

Jacob Mathew v. State of Punjab, A.I.R. SC 3180 (2005). .......................................................... 31

Janak Ramsang Kanzariya v. State of Gujarat, 7 R.C.R. (Cr.) 2025 (2012 .................................. 25

Janak Ramsang Kanzariya v. State of Gujarat, Cri. L.J. 1306 (2011). ......................................... 29

Janshed Hormusji Wadia v. Board of Trustees Port of Mumbai, A.I.R. SC 1815, (2004). .......... 17

K.S. Puttaswammy v. Union of India, W.P. (Civil) 494 (2012). .................................................. 17

Komalavalli v. C.R. Nair and Ors., Cri. L.J. 446 (1984). ............................................................. 29

Kunhyammed v. State of Kerala, 245 ITR 360 SC (2000). .......................................................... 18

Lillu @ Rajesh v. State of Haryana,14 SCC 643 (2013). ............................................................. 18

Margappa Shethappa Vadar v. Proctor and Gamble India and Anr., 4 Bom CR 820 (2008 ........ 19

Mathabai @ Joby v. George, 4 SCC 358 (2010). ......................................................................... 19

Meera Santosh Pal v. Union of India, 3 SCC 462 (2017). ............................................................ 22

Morgentalor Smoling and Scott v. R, 44 DLR 385 (1988)........................................................... 30

Ms. Eera Thr. Dr. Manjula Krippendorf v. State (Govt. of NCT of Delhi) and Anr., A.I.R. SC 3457
(2017). ....................................................................................................................................... 21

Ms.Chanchala Kumari v. Union of India WP (C) No. 871 (2017). .............................................. 23

Murugan Nayakkar v. Union of India, WP (C) No. 749 (2017). .................................................. 22

N. Suriyakala vs A. Mohandoss & Ors., 2 A.C.R. 1404 SC (2007). ............................................ 16

Nahar Industrial Enterprises Ltd. v. Hong kong and Shanghai Banking Corpn., 3 SCC 481 (2009).
................................................................................................................................................... 16

Nilabati Behera v. State of Orissa, A.I.R. SC 1960 (1993). ......................................................... 33

Nirma Ltd. v. Lurgi Lentges Energietichnik GMBH and Anr., 5 SCC 520 (2002). .................... 18

5
MEMORANDUM ON BEHALF OF APPELLANT

Pankaj Bhargava v. Mohider Nath, A.I.R. SC 1233 (1991). ........................................................ 15

Planned Parenthood v. Casey, 505 U.S. 833 (1992). .................................................................... 24

Pritam Singh v. State of Haryana, A.I.R SC 169 (1950). ............................................................. 19

R and Ors. v. State of Haryana and Ors., 1 SCR 584 (1987)........................................................ 26

R and Ors. v. State of Haryana, WP (C) 6733 (2016). ................................................................. 30

Roe v. Wade, 410 US 113 (1973). ................................................................................................ 24

Samira Kohli v. Dr. Prabha Mahchanda and Anr., A.I.R SC 1385 (2008). .................................. 19

Santosh Hazasri v. Purushottam Tiwari, A.I.R. SC 965 (2001). .................................................. 17

Sanwat Singh v. State of Rajasthan, A.I.R. SC 715 (1961). ......................................................... 15

Savita Sachin Patil v. Union of India, WP (C) No. 121 (2017). ................................................... 21

Shaikh Ayesha Khatoon v. Union of India, 1 RCR(C) 820 (2018). ............................................. 23

Shri Bhagwan Katariya v. State of M.P, 4 MPHT 20 (Chh., 2001). ............................................ 20

Sir Chunilal Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd., A.I.R. SC
1314 (1962). .............................................................................................................................. 17

State of Karnataka v. Krishnappa, A.I.R. SC 1470 (2000). .......................................................... 18

State of Rajasthan v. Vidhyavati, A.I.R. SC 933 (1962). ............................................................. 31

State of Uttar Pradesh v. Harish Chandra, A.I.R. SC 2173 (1996)............................................... 18

Sube Singh v. State of Haryana and Ors., A.I.R. SC 1117 (2006). .............................................. 33

Suchita Srivastava and Anr. v. Chandigarh Administration, 3 SCC 570 (2009). ......................... 21

Sunita Kumari v. State of Jharkhand, 1 CCR 88 (2018)............................................................... 23

Surjibhai Badaji Kalasva v. State of Gujarat, Manu GJ 0118 (2018). .......................................... 19

6
MEMORANDUM ON BEHALF OF APPELLANT

Tapasya Umesh Pisal v. Union of India and Ors., A.I.R. SC 3931 (2017)................................... 25

Tirupati Balaji Developers Pvt. Ltd. v. State of Bihar, A.I.R. SC 2351 (2004) ........................... 16

Union of India v. Tantia Construction (P) Ltd, 3 LW 691 SC (2011). ......................................... 15

V. Krishnan v. G. Rajan alias Madipu Rajan and The Inspector of Police (Law and Order), 1 LW
89 (1994). .................................................................................................................................. 19

Vijender v. State of Haryana and Ors., 1 RCR (C) 163 (2015). ................................................... 30

X v. Govt. of NCT of Delhi and Anr., 1 RCR (C) 510 (2014). .................................................... 28

X v. State of Kerala and Ors., 2 KLT 7 (2009). ............................................................................ 22

X v. Union of India, 3 SCC 458 (2017). ....................................................................................... 22

XYZ vs Union of India, WP No. 970 (2018). ............................................................................... 23

Z v. State of Bihar, A.I.R. SC 3908, (2017). ................................................................................ 16

7
MEMORANDUM ON BEHALF OF APPELLANT

STATUTES

• CODE OF CRIMINAL PROCEDURE, 1973.


• CONSTITUTION OF INDIA.
• HUMAN IMMUNODEFICIENCY VIRUS AND AIDS (PREVENTION AND CONTROL) ACT, 2017.
• INDIAN PENAL CODE, 1860.
• MEDICAL TERMINATION OF PREGNANCY ACT, 1971.
• PERSONS WITH DISABILITIES (EQUAL OPPORTUNITIES, PROTECTION OF RIGHTS AND FULL
PARTICIPATION) ACT, 1995.

BOOKS

• D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (8TH EDN. 2012).


• H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA ,( 4th Edn. 2010).
• JEREMY BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION
(1789).
• MODI ON MEDICAL JURISPRUDENCE AND TOXICOLOGY, (21ST Edn., PP. 717-722).

ONLINE RESEARCH DATABASE

• www.heinonline.com
• www.jstor.org
• www.manupatrafast.com
• www.scconline.com
• www.westlawindia.com

8
MEMORANDUM ON BEHALF OF APPELLANT

STATEMENT OF JURISDICTION

Special Leave Petition ___/2017 has been filed by the Appellant before the Hon’ble Supreme
Court of PEPSU under Article 1361 of the Constitution of PEPSU read with Order XXI Rule
3(1)(a)2 of the Supreme Court Rules, 2013 against the judgment passed by the Hon’able High
Court.

1
Special leave to appeal by the Supreme Court
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal
from any judgment, decree, determination, sentence or order in any clause or matter passed or made by any court or
tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court
or tribunal constituted by or under any law relating to the Armed Forces.
2
The petition for seeking special leave to appeal (SLP) filled before the Court, under Article 136 of the constitution
shall be in Form No. 28 appended to the rules. No separate application interim relief has been filled. Interim prayer in
any should be incorporated in Form No. 28.

9
MEMORANDUM ON BEHALF OF APPELLANT

STATEMENT OF FACTS

BACKGROUND OF SHAMINA BEGUM:

• Married to Mohammed Shamir (30 year old day labourer) at the age of 12.
• Gave birth to a girl child (present age 2 year old) out of wedlock.
• When she got pregnant second time, her husband forcefully aborted the female foetus after
sex determination test.
• Her husband and her family were living in abject poverty and she became mentally
retarded, so her husband deserted her.
• Her family was unable to take care of her because of their financial condition.

TRACING SHAMINA BEGUM’S CONNECTION TO NAV JEEWAN:

• Around mid-July, Yashodhara a lawyer on her way to home from office found Shamina
lying in the middle of the road.
• She with the help of her driver took her to nearby clinic from where in emergency she was
referred to nearby government hospital and driver was sent to nearest police station.
• In hospital she was under treatment for one week under a gynecologist, nutritionist and
psychologist until she regained her normal strength.
• Shamina was discharged with an agreement that she will be established at a shelter home
until her husband and family was determined.
• Yashodhara took Shamina to her house and took utmost care that one could have, later she
found from discharge paper that girl was minor and 13 weeks pregnant and so inquired for
same from her.

TIMELINE OF EVENTS LEADING TO THE DISPUTE :

• On 25th July, 2017 she was brought to ‘Nav Jeewan’, a shelter home established and
administered by Yashodhara’s NGO ‘Nari Kalyan Sangathan’.
• On 8th August, 2017 Ultra sound was done and she found 13 weeks pregnant.
• On 4th September, she expressed her desire to abort as she was raped, accordingly she was
taken to hospital and her father and brother were called to sign the consent form. To which
hospital authorities did not proceed with the matter.

10
MEMORANDUM ON BEHALF OF APPELLANT

• On 18th September, 2017 F.I.R was lodged by NGO, registered under case no. 13 of 2017.
Her pregnancy by this time was already 17 weeks old and she was HIV +ve.
• On 3rd October, 2017 she was taken for abortion but termination was not carried out, by
this time she was already 20 weeks pregnant.

PROCEDURAL HISTORY:

• The appellant approached HC with prayer that she should be permitted to terminate her
pregnancy as she had been raped (statutorily) and was HIV +ve.
• On 10th October, 2017, HC directed the counsel to implead her husband and father, and
constituted a multi-disciplinary medical board to examine Shamina with regard to physical
and mental state of the foetus.
• The medical report suggested that pregnancy was 20 to 24 weeks old and termination
require major surgical procedure with subsequent consequences such as bleeding, sepsis
and anesthesia hazards.
• HC declined Shamina to terminate her pregnancy inter alia in the interest of Justice.
• Nari Kalyan Sangathan (NGO) filed a Special Leave Application representing Shamina,
considering her wishes and sentiments and on being aggrieved with the High Court’s order.

11
MEMORANDUM ON BEHALF OF APPELLANT

ISSUES FOR CONSIDERATION

1. WHETHER THE PETITION IS MAINTAINABLE?

2. WHETHER THE TERMINATION OF PREGNANCY CAN BE ALLOWED EVEN AFTER THE SAID 20
WEEKS OF PREGNANCY IF SHE IS NOT WILLING TO CARRY ON WITH HER PREGNANCY?

3. WHETHER THE VICTIM WHO IS HIV +VE AND ALREADY 24 WEEKS PREGNANCY BE ALLOWED
TO TERMINATE HER PREGNANCY LEGALLY?

4. WHETHER AN EXEMPTION MAY BE ALLOWED TO THE VICTIM TO TERMINATE HER PREGNANCY


WHICH HAS ALREADY PASSED THE MANDATORY PERIOD DUE TO THE TIME TAKEN FOR

FOLLOWING LEGAL PROCEDURES?

5. WHETHER THE VICTIM IS ENTITLED TO GET COMPENSATION UNDER NEGLIGENCE FOR THE
DELAY CAUSED BY THE AUTHORITIES IN TERMINATING THE UNWANTED PREGNANCY?

12
MEMORANDUM ON BEHALF OF APPELLANT

SUMMARY OF ARGUMENTS

1. THAT THE SPECIAL LEAVE PETITION FILED WITH THE HON’BLE SUPREME COURT IS
MAINTAINABLE.

It is most humbly and respectfully submitted before this Hon’ble Court that the SLP is
maintainable as it fulfills the primary grounds, i.e. grave miscarriage of justice, it consists a
question of public importance, there is a substantial question of law and the appellant has no
other alternative remedy. The decision of Hon’ble Hon’ble High Court was slightly misguided
as it did not referred the statute of MTP Act properly. Also it did not take into consideration
the right to privacy and dignity of aggrieved, this showcases the situation where an outdated
law is unable to protect the interest of the victim and thereafter put forth hurdles to the Human
Rights the society possesses, these series of infringement of rights put forth the question of law
before the court and the only option left with the aggrieved victim was to knock the door of
Supreme Court.

2. THAT TERMINATION OF PREGNANCY CAN BE ALLOWED AFTER 20 WEEKS OF PREGNANCY


IF VICTIM GIVES CONSENT FOR TERMINATION.

It is most humbly and respectfully submitted before this Hon’ble Court that the termination
can be done if the victim consents to it. The victim’s (herein appellant) consent holds good for
the termination. It has also been submitted that the victim is capable of giving her consent.
Moreover, it has been illustrated through various statutes and cases that the termination of
pregnancy can be done even after 20 weeks.

3. THAT A 24 WEEK PREGNANT HIV +VE VICTIM CAN BE ALLOWED TO TERMINATE HER
PREGNANCY LEGALLY.

It is most humbly and respectfully submitted before this Hon’ble Court that the termination
can be done even after it has passed 24 weeks. It is also stated that the termination can instead
prevent hazards both mentally and physically. The continuance of pregnancy will attract social
stigma and can lead her to a traumatic state. Moreover, the impact of HIV on pregnancy has
been depicted and it has been shown that even if a person is suffering from HIV, pregnancy
can be terminated.

13
MEMORANDUM ON BEHALF OF APPELLANT

4. THAT AN EXEMPTION CAN BE ALLOWED TO THE VICTIM TO TERMINATE HER PREGNANCY


WHICH HAS ALREADY PASSED THE MANDATORY PERIOD DUE TO THE TIME TAKEN FOR
FOLLOWING LEGAL PROCEDURES.

It is most humbly and respectfully submitted before this Hon’ble Court that the victim is
entitled for compensation, as; there was an unreasonable impediment in the legal proceedings.
The best interest of the victim is also to be taken into consideration. Therefore, termination
should be granted.

5. THAT VICTIM IS ENTITLED TO GET COMPENSATION UNDER NEGLIGENCE FOR DELAY


CAUSED BY AUTHORITIES IN TERMINATING THE PREGNANCY.

It is most humbly and respectfully submitted before this Hon’ble Court that there was due
negligence on the part of hospital authorities, as; the three prerequisites are met with. In
addition to this various schemes have been shred light upon, to get the just and reasonable
compensation for the appellant.

14
MEMORANDUM ON BEHALF OF APPELLANT

WRITTEN SUBMISSION

1. THAT THE SPECIAL LEAVE PETITION FILED WITH THE HON’BLE SUPREME COURT IS

MAINTAINABLE.

It is most humbly and respectfully submitted before this Hon’ble court that, this Special Leave
Petition has been filed against the judgment and order of the High Court and is maintainable on
primarily four grounds:3

1.1 That there exists grave miscarriage of justice.4

1.2 That there exists question of public importance. 5

1.3 That there exists substantial question of law.6

1.4 That there exists no alternative remedy. 7

1.1. THAT THERE EXISTS GRAVE MISCARRIAGE OF JUSTICE.

Article 1368 vests discretionary power which cannot be exhaustively defined, but does not permit
interference unless substantial and grave injustice has been done and the conscience of the court
is shocked.9

1.1.1. THE HON’BLE HIGH COURT ERRED IN APPRECIATING THE SPIRIT OF STATUTES.

(¶ 1.) In the present case, Hon’ble High Court has completely failed to appreciate the spirit of the
MTP Act, 197110 and has treated it as an adversarial litigation and passed the order which is not
only unsustainable in law but also projects total lack of sensitivity and not adhering to the statutory
provision of Section 511 of MTP Act, 1971, that when there is an allegation of rape, the pregnancy
can be terminated.

3
Hull v. Mckenna, I.R. 402, (1926).
4
Balwant Singh v. Mool Chand, A.I.R. SC 129 (1971).
5
Beant Singh v. Union of India, A.I.R. SC 388 (1977).
6
Pankaj Bhargava v. Mohider Nath, A.I.R. SC 1233 (1991).
7
Union of India v. Tantia Construction (P) Ltd, 3 LW 691 SC (2011).
8
INDIA CONST. art. 136.
9
Sanwat Singh v. State of Rajasthan, A.I.R. SC 715 (1961).
10
Medical Termination of Pregnancy Act, 1971, No. 34, Acts of Parliament, (1971).
11
Medical Termination of Pregnancy Act, 1971, § 5, No. 34, Acts of Parliament, (1971).

15
MEMORANDUM ON BEHALF OF APPELLANT

(¶ 2.) Termination of Pregnancy in Indian Penal Code 12 was drafted centuries ago, when pregnancy
was thought to be a sin and crime. But now, the situation has changed, people are being more
progressive and liberal thereby mandating a change in the archaic laws. As stated in the, Doctrine
of Living Tree,13 which states that constitution is organic and must be read in a broad and
progressive manner so as to adapt it to the changing times.

1.1.2. THE HIGH COURT ERRED ON RECOGNIZING THE RIGHT OF THE VICTIM.

(¶ 1.) Article 13614 is an extraordinary jurisdiction15 vested by the Constitution in the Supreme
Court with implicit trust and faith, and extraordinary care and caution has to be observed in the
exercise of its Jurisdiction16. In the present case, the High Court apart from denying the termination
of the pregnancy of the victim, also failed to recognize the social and mental trauma that the
plaintiff had to undergo if the termination is not allowed. In addition to this, the court was least
focused on the rights of the women. The medical report submitted states that termination of
pregnancy may need major surgical procedure along with subsequent consequences such as
bleeding, sepsis and anesthesia hazards, but there was no opinion that the termination could not be
carried out and the same hazards cannot be said to be constituting grave risk to the life of the
Appellant. It needs to be stated that the High Courts are required to be more sensitive while dealing
with matters of the present nature.

(¶ 2.) It is most humbly and respectfully submitted that in the case of Z v. State of Bihar,17 which
possesses facts similar to that in the present case the appeal was allowed by the Hon’ble Supreme
Court of India and the appellant seeks permission to grant the same favour.

1.2. THAT THERE EXISTS QUESTION OF PUBLIC IMPORTANCE.

(¶ 1.) When a question of law of general public importance arises, or a decision shocks the
conscience of the court, its jurisdiction can always be invoked. Article 136 18 is the residuary

12
Indian Penal Code, No. 45, Acts of Parliament, (1860).
13
Edward v. Canada, A.C. 124, (1930).
14
INDIA CONST. art. 136.
15
Nahar Industrial Enterprises Ltd. v. Hong kong and Shanghai Banking Corpn., 3 SCC 481 (2009).
16
Tirupati Balaji Developers Pvt. Ltd. v. State of Bihar, A.I.R. SC 2351 (2004).
17
Z v. State of Bihar, A.I.R. SC 3908, (2017).
18
N. Suriyakala vs A. Mohandoss & Ors., 2 A.C.R. 1404 SC (2007).

16
MEMORANDUM ON BEHALF OF APPELLANT

power19 of SC to do justice where the court is satisfied that there is injustice. 20 The principle is that
this court would never do injustice nor allow injustice being perpetrated for the sake of upholding
technicalities.21 In any case, special leave would be granted from a second appeal decision only
where the judgment raises issues of law of general public importance. 22

(¶ 2.) Law is for the protection of interest of people in the society. 23 If same law fails to protect
the larger interest of people in the society then that law needs to be reviewed. 24 There is a deep-
rooted problem with women’s right in the society and inadequacy of existing laws and its impact
on women’s life is perhaps an evident. The laws claims in protecting the interest of women but in
reality fails to achieve their objective.

(¶ 3.) Women suffer from health issues due to her reproductive capacity. Sometimes pregnancy
leads to risk to the mental and physical health of women. However, there are various reasons
involved for justifying abortion, such as- to preserve the life or physical or mental well-being of
mother or to prevent the completion of pregnancy that has resulted from rape.

1.3. THAT THERE EXISTS SUBSTANTIAL QUESTION OF LAW.

(¶ 1.) Where findings are entered without considering relevant materials and without following
proper legal procedure, Supreme Court’s interference is called for. 25 The expression Substantial
Question of Law26 has acquired various a definite connotations through various judicial
pronouncements. A Constitutional Bench27 of this court, while explaining the import of the said
expression, observed that:

“The proper test for determining whether a question of law raised in the case is
substantial would, in our opinion, be whether it is of general public importance or
whether it directly and substantially affects the rights of the parties and if so whether it
is either an open question in the sense that it is not finally settled by this court or by the

19
A.V Papayya Sastry v. State of A.P., A.I.R. SC 1546 (2007).
20
C.C.E v. Standard Motor Products, A.I.R. SC 1298 (1979).
21
Janshed Hormusji Wadia v. Board of Trustees Port of Mumbai, A.I.R. SC 1815, (2004).
22
Balakrishna v. Rmaswami, A.I.R. 1965 195 SC (1965).
23
Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, (Jonathan Bennett ed., 1789).
24
K.S. Puttaswammy v. Union of India, W.P. (Civil) 494 (2012).
25
Dale & Carrington Invt. Ltd. v. P.K. Prathapan, A.I.R. SC 1624 (2005).
26
Santosh Hazasri v. Purushottam Tiwari, A.I.R. SC 965 (2001).
27
Sir Chunilal Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd., A.I.R. SC 1314 (1962).

17
MEMORANDUM ON BEHALF OF APPELLANT

Privy Council or by the federal court or is not free from difficulty or calls for discussion
of alternative views.” 28

(¶ 2.) While dealing with a case involving the rape of an eight year old child, a three-judge Bench
of this Court held that Sexual violence apart from being dehumanizing is an unlawful intrusion of
the right to privacy and sanctity and it offends her dignity. 29 It emphasized the rights of rape
survivors to privacy, physical and mental integrity and dignity.30 In the present case there has been
a direct and substantial injury to the Fundamental Rights viz right to privacy, dignity, and bodily
injury and restricted right to choose and decide about her body. 31

1.4. THAT THERE EXISTS NO ALTERNATIVE REMEDIES.

(¶ 1.) The court has imposed itself a restriction that before invoking the jurisdiction of the Court
under Art. 13632, the aggrieved party must exhaust any remedy which may be available under the
law before the appellate authority or the High Court. 33 When the High court commits a patent
error, the Supreme Court can hear an appeal from the single judge. 34

(¶ 2.) In the present case the victim had decided to exercise her statutory right, being a victim of
rape, not to bear the child and more so, when there is possibility of the child likely to suffer from
HIV +ve, the authorities of the State should have been more equipped to assist the Appellant
instead of delaying the process. That apart, as is seen, the State in a way contested the matter before
the High Court on the foundation of State interest. State has failed in its public duty to protect the
fundamental rights of the citizen. 35 Since, the appellant has invoked all the existing remedies.
Therefore, the counsel has approached the Hon’ble Supreme Court to seek justice.

(¶ 3.) “The discretionary power 36 of the Supreme Court is plenary in the sense that there are no
words in Article 136 itself qualifying that power. The very conferment of the discretionary power
defies any attempt at exhaustive definition of such power. The power under Article 136 is

28
Id.
29
State of Karnataka v. Krishnappa, A.I.R. SC 1470 (2000).
30
Lillu @ Rajesh v. State of Haryana,14 SCC 643 (2013).
31
INDIA CONST. art. 21.
32
Id., at 14.
33
Nirma Ltd. v. Lurgi Lentges Energietichnik GMBH and Anr., 5 SCC 520 (2002).
34
State of Uttar Pradesh v. Harish Chandra, A.I.R. SC 2173 (1996).
35
Gobind v. State of Mdhya Pradesh and Anr, 2 SCC 148 (1975).
36
Kunhyammed v. State of Kerala, 245 ITR 360 SC (2000).

18
MEMORANDUM ON BEHALF OF APPELLANT

permitted to be invoked in exceptional circumstances 37 and not in a routine fashion and when a
question of law of general public importance arises or a decision sought to be impugned before the
Supreme Court shocks the conscience. This overriding and exceptional power38 has been vested
in the Supreme Court to be exercised sparingly and only in furtherance of the cause of justice in
the Supreme Court in exceptional cases only when special circumstances are shown to exist." 39

(¶ 4.) Similarly, the facts of the present case are exclusive and special as it involves the question,
whether a minor who has been raped, should be allowed to terminate her pregnancy, if she
consented for the termination of pregnancy and the doctor didn’t proceed on her consent. The fact
that the prospective child of hers may suffer from HIV makes it more special.

2. THAT TERMINATION OF PREGNANCY CAN BE ALLOWED AFTER 20 WEEKS OF PREGNANCY


IF VICTIM GIVES CONSENT FOR TERMINATION.

As there cannot be any termination of pregnancy without the express and voluntary consent of the
woman,40 in the same manner the pregnancy should not be forced to be continued without her
voluntary consent, especially when the facts of the case show that the very act which led to the
conception was an involuntary act. No doubt, the protection of right of unborn child 41 is an
obligation cast upon the State under the Constitutional provisions, yet in view of the unambiguous
language of Section 5 of the Medical Termination of Pregnancy Act, 1971, the conflict between
the right to life of mother and the right to life of unborn child would yield in favor of the right to
life of mother. To force a woman to continue with the pregnancy which she does not want to
continue is an infringement of right to privacy and dignity of the woman as well as an infringement
of the right to a healthy and dignified life of the nascent life in her womb. 42

2.1. THAT THE VICTIM’S CONSENT IS VALID TO TERMINATE HER PREGNANCY.

"The touch of children is the delight of the body; the delight of the ear is the hearing of
their speech".43 –– The great Tamil Saint Thiruvalluvar

37
Pritam Singh v. State of Haryana, A.I.R SC 169 (1950).
38
Mathabai @ Joby v. George, 4 SCC 358 (2010).
39
Id., at 20.
40
Samira Kohli v. Dr. Prabha Mahchanda and Anr., A.I.R SC 1385 (2008).
41
Margappa Shethappa Vadar v. Proctor and Gamble India and Anr., 4 Bom CR 820 (2008).
42
Surjibhai Badaji Kalasva v. State of Gujarat, Manu GJ 0118 (2018).
43
V. Krishnan v. G. Rajan alias Madipu Rajan and The Inspector of Police (Law and Order), 1 LW 89 (1994).

19
MEMORANDUM ON BEHALF OF APPELLANT

(¶ 1.) But, in the present case a girl of 15 years has been knocking at the doors of this Court, the
highest court of the land, praying for issue of a direction to terminate the pregnancy of the child in
her womb, on the ground that bearing the unwanted pregnancy made her to become mentally ill
and the continuance of pregnancy has caused great anguish in her mind, resulting in a grave injury
to her mental health, since the pregnancy was caused by rape. 44

(¶ 2.) Shri Bhagwan Katariya v. State of M.P.45 case again brought an acid test for interpretation
of Medical Termination of Pregnancy Act, 1971 and the right of women on termination of
pregnancy. In this case the woman was forced to undergo abortion. The doctor sought protection
under Section 3 of the Medical Termination of Pregnancy Act, 1971. The Court opined that by
reference of Section 3 of the Medical Termination of Pregnancy Act, 1971, a doctor is entitled to
terminate the pregnancy under certain circumstances; however it cannot be done against the desires
of the woman. Thus, it clearly shows that a woman has an indisputable right to abortion and no
one can take away this right from her.

(¶ 3.) Under sub-section (4)(a) of Section 3, of MTP Act46 which prohibits the termination of the
pregnancy of a woman under eighteen years of age or a mentally ill woman, without the consent
in writing of her guardian. The consent of the victim is of paramount importance, whereas in the
present case, not only the victim has consented for such termination, but also, her father and the
NGO, Nari Kalyan Sangathan, have no objection to such termination of pregnancy.

2.2. THAT MILD RETARDATION DOESN’T AFFECT THE CONSENT OF VICTIM.

"Mental Retardation" has also been incorporated Under Section 2(g) 47 of the National Trust for
Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act,
1999. Analyzing the provision of Act, The Court opined that while a guardian can make decisions
on behalf of a "mentally ill person" as per Section 3(4)(a)48 of the MTP Act, 1971, the same cannot

44
D. Rajeswari v. State of Tamil Nadu and Ors., CriLJ 3795 (1996).
45
Shri Bhagwan Katariya v. State of M.P, 4 MPHT 20 (Chh., 2001).
46
Medical Termination of Pregnancy Act, 1971, § 3, No. 34, Acts of Parliament, (1971).
47
National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities
Act, 1999, § 2, No. 44, Acts of Parliament, (1999).
48
Id.

20
MEMORANDUM ON BEHALF OF APPELLANT

be done on behalf of a person who is in a condition of "mental retardation". Thus, the difference
between the 'mental illness'49 and 'mental retardation' as recognized in law was emphasized. 50

(¶ 1.) A person suffering from mild retardation cannot be said to be totally incompetent from
making the decision on her own. Various degrees of mental retardation, namely, mild, boderline,
moderate, severe and profound instances of the same. The person with severe or profound
retardation requires an intensive care and supervision. However, person with mild retardation are
capable of living in normal social conditions and they just need some attention from time to time.
Thus in the present case victim although being mild retarded was capable to take and exercise right
to choose and decide for her body. 51

(¶ 2.) Consent plays in important role, but alone consent would amount to an arbitrary and
unreasonable restriction on the reproductive rights of the victim. 52 The victim’s reproductive
choice should be respected in spite of other factors such as lack of understanding of the sexual act
as well as her apprehension to carry the pregnancy to its full term and the assumption of maternal
benefit thereafter. We have adopted this position since the applicable statute clearly contemplates
that even a woman who is found to be mentally retarded should give her consent to the termination
of Pregnancy.53 The conflict between the right to life of mother and the right to life of unborn child
would yield in favor of the right to life of mother.54 To force a woman to continue with the
pregnancy which she does not want to continue is an infringement of right to privacy and dignity
of the woman as well as an infringement of the right to a healthy and dignified life of the nascent
life in her womb.

2.3. THAT TERMINATION OF PREGNANCY CAN BE ALLOWED AFTER 20 WEEKS.

(¶ 1.) In the case of the X v. State of Kerala and Ors55 plaintiff was raped and is in need of medical
termination of pregnancy. She approached the govt. Hospital but they denied her the termination.
Subsequently, she reached the 2nd respondent who denied the termination on the ground that, the

49
Person with disabilities (Equal Opportunities, Protection of Rights and full Participation) Act, § 2, No. 1, Acts of
Parliament, (1996).
50
Ms. Eera Thr. Dr. Manjula Krippendorf v. State (Govt. of NCT of Delhi) and Anr., A.I.R. SC 3457 (2017).
51
Suchita Srivastava and Anr. v. Chandigarh Administration, 3 SCC 570 (2009).
52
Id.
53
Id., at 44.
54
Savita Sachin Patil v. Union of India, WP (C) No. 121 (2017).
55
X v. State of Kerala and Ors., 2 KLT 7 (2009).

21
MEMORANDUM ON BEHALF OF APPELLANT

pregnancy exceeded 20 weeks. In this case the high court held that petitioner is not mentally
prepared to deliver the child and such situation can cause innumerable mental stress to the plaintiff.
The said circumstances can be treated as one under Section 5 of Medical Termination of Pregnancy
Act, 1971 and thus the plaintiff was allowed to terminate her pregnancy. 56

(¶ 2.) The Supreme Court in the matter of X v. Union of India57 has clearly held
that termination of pregnancy after 20 weeks to save life of pregnant woman (an alleged rape
victim) in case of grave danger to physical and mental health of the said woman, is permissible,
and observed as under:—

“Having perused the medical report (relevant extracts whereof have been reproduced
hereinabove), we are satisfied that a clear finding has been recorded by the Medical Board,
that the risk to the petitioner of continuation of her pregnancy can gravely endanger her
physical and mental health. The Medical Board has also expressed an advice that the
patient should not continue with the pregnancy. In view of the findings recorded in Para
6 of the report, coupled with the recommendation and advice tendered by the Medical
Board, we are satisfied that it is permissible to allow the petitioner to terminate
her pregnancy in terms of Section 5 of the Medical Termination of Pregnancy Act, 1971.
In view of the above, we grant liberty to the petitioner, if she is so advised, to terminate
her pregnancy.”58

(¶ 3.) In Murugan Nayakkar v. Union of India59 court observed the petitioner who is a 13 years
old girl and a victim of alleged rape and sexual abuse, has preferred this writ petition
for termination of her pregnancy. Considering the age of the petitioner, the trauma she has
suffered because of the sexual abuse and the agony she is going through the Court held that
termination of pregnancy should be allowed.

(¶ 4.) In the case of Shaikh Ayesha Khatoon v. Union of India,60 the petitioner who was carrying
26.5 weeks pregnancy was permitted to undergo medical termination of pregnancy at the medical

56
Id.
57
X v. Union of India, 3 SCC 458 (2017).
58
Meera Santosh Pal v. Union of India, 3 SCC 462 (2017).
59
Murugan Nayakkar v. Union of India, WP (C) No. 749 (2017).
60
Shaikh Ayesha Khatoon v. Union of India, 1 RCR(C) 820 (2018).

22
MEMORANDUM ON BEHALF OF APPELLANT

facility of her choice. In XYZ vs Union of India 61 petitioner who is 19 years of age in 20-22 weeks
of her pregnancy permitted to undergo medical termination of pregnancy.

(¶ 5.) The Hon'ble Supreme Court in the case of Ms.Chanchala Kumari v. Union of
India62 and Murugan Nayakkar v. Union of India63 permitted the victims of rape in the said
cases to terminate the pregnancy, which was beyond the duration of 20 (twenty) weeks.

(¶ 6.) In the case of Sunita Kumari v. State of Jharkhand64 medical termination of pregnancy
having fetus of gestational age of about 23 weeks under special circumstance with some
medical/surgical & interventional risk was carried out as in any other ordinary such case. The 15-
year-old petitioner is a victim of rape. A minor girl's future is at stake, considering the ignominy,
she has already suffered on account of becoming pregnant, due to the sexual abuse, she was
subjected to by the accused, giving birth to a child would further stigmatize and traumatize the
petitioner. Also the report of the Medical Board thus does not suggest that there is a grave risk to
the petitioner if termination of her pregnancy is carried out, similar to our case.

3. THAT A 24 WEEK PREGNANT HIV POSITIVE VICTIM CAN BE ALLOWED TO TERMINATE HER
PREGNANCY LEGALLY.

In India, rules and regulation and punishment for unlawful abortion is dealt with under the Medical
Termination of Pregnancy Act, 1971 and the Penal Code, 1860. As per India's abortion laws only
qualified doctors under specific conditions can perform abortion. Some of the requirements are as
follows:65
(a) Women whose physical and/or mental health was endangered by the pregnancy,
(b) Women facing the birth of a potentially handicapped or malformed child,
(c) Rape,
(d) Pregnancies in girls under the age of eighteen with the consent of a guardian,
(e) Pregnancies in “mentally ill” with the consent of a guardian,
(f) Pregnancies that are a result.

61
XYZ vs Union of India, WP No. 970 (2018).
62
Ms.Chanchala Kumari v. Union of India WP (C) No. 871 (2017).
63
Id., at 56.
64
Sunita Kumari v. State of Jharkhand, 1 CCR 88 (2018).
65
Id., at 44.

23
MEMORANDUM ON BEHALF OF APPELLANT

(¶ 1.) Today where laws related to women are being made more humane and pragmatic, still laws
related to abortion have remained more or less both controversial and dogmatic around the world.
This harsh reality was brought by the death of Savita Halappanavar in Ireland. Savita
Halappanavar, who was working in Ireland, suffered a miscarriage when she was some 17 weeks'
pregnant, however, her request for abortion was refused on legal grounds and she died a few days
later due to multiple organ failure. Her death led to a nationwide debate and protest around the
world especially in Britain and India. Laws which criminalize all abortions, except those required
to save a mother’s life, were held to be unconstitutional and violated the right to privacy of a
pregnant woman.66

(¶ 2.) The United States law related to abortion has remained both controversial and debatable and
varies from State to States. In United States, prior to landmark case of Roe v. Wade67, there was a
general statutory prohibition on abortion in almost all States and was permissible and legal only
under very limited circumstances such as rape or incest. It was in this case, the US Supreme Court
ruled that right to privacy included the right of a woman to decide whether to have children, and
the right of a woman and her doctor to make that decision without State interference.

3.1. THAT PREGNANCY CAN BE TERMINATED AFTER 24 WEEKS.

The Judiciary in India had played a vital role in securing rights of women, including the
reproductive rights of women as a fundamental right to life, privacy and health. 68 Even today laws
of abortion are shadowed by morality, ethics and religion. 69
(¶ 1.) In this regard, the Supreme Court in Suchita Srivastava70 has laid down the guidelines based
on the principle of “best interests” 71 theory and held that the Court is required to ascertain the
course of action which would serve the best interests of the person in question.
“Courts in other common law jurisdictions have developed two distinct standards while
exercising “parens patriae” jurisdiction for the purpose of making reproductive
decisions on behalf of mentally retarded persons. These two standards are the “best
interests” test and the “substituted judgment” test.

66
Roe v. Wade, 410 US 113 (1973).
67
Id.
68
INDIA CONST. art. 12.
69
Planned Parenthood v. Casey, 505 U.S. 833 (1992).
70
Id., at 48.
71
Janak Ramsang Kanzariya v. State of Gujarat, 7 R.C.R. (Cr.) 2025 (2012).

24
MEMORANDUM ON BEHALF OF APPELLANT

As evident from its literal description, the “best interests” test requires the Court to
ascertain the course of action which would serve the best interests of the person in
question. In the present setting this means that the Court must undertake a careful inquiry
of the medical opinion on the feasibility of the pregnancy as well as social circumstances
faced by the victim. It is important to note that the Court's decision should be guided by
the interests of the victim alone and not those of the other stakeholders such as guardians
or the society in general. It is evident that the woman in question will need care and
assistance which will in turn entail some costs. However, that cannot be a ground for
denying the exercise of reproductive rights.”72

(¶ 2.) In a more recent decision, Their Lordships of the Supreme Court in the matter of Tapasya
Umesh Pisal v. Union of India73, have permitted termination of pregnancy of a woman, aged 24
years, in her 24th week of pregnancy wherein the Medical Board opined that baby if delivered
would have to undergo several surgeries associated with high morbidity and mortality, and thus,
granted permission.

(¶ 3.) Similarly, in the matter of Mrs. A v. Union of India 74, the Supreme Court has granted
permission for termination of pregnancy of a woman, aged 22 years, in her 25th to 26th weeks of
pregnancy holding that continuation of pregnancy can pose severe mental injury to the petitioner
and no additional risk to the petitioner's life is involved if she is allowed to undergo termination of
her pregnancy. Their Lordships held as under:—
“Upon evaluation of the petitioner, the aforesaid Medical Board has concluded that her
current pregnancy is of 25 to 26 weeks. The condition of the fetus is not compatible with
life. The medical evidence clearly suggests that there is no point in allowing the
pregnancy to run its full course since the fetus would not be able to survive outside the
uterus without a skull. Importantly, it is reported that the continuation of pregnancy can
pose severe mental injury to the petitioner and no additional risk to the petitioner's life is
involved if she is allowed to undergo termination of her pregnancy.” 75

72
Id., at 46.
73
Tapasya Umesh Pisal v. Union of India and Ors., A.I.R. SC 3931 (2017).
74
A v. Union of India, WP (C) No. 728 (2017).
75
Id., at 55.

25
MEMORANDUM ON BEHALF OF APPELLANT

(¶ 4.) In the case of Bhavikaben v. State of Gujarat 76, considering the mental health and economic
condition of the rape victim was 18 years old and her pregnancy was 24 weeks, termination was
permitted.

(¶ 5.) It is noteworthy that laws relating to medical termination of pregnancy in other countries
like Canada, China, and North Korea, there is no upper limit of gestation period within which the
termination of pregnancy can be legally sought by a woman. 77

3.2. THAT TERMINATION OF PREGNANCY CAN PREVENT HEALTH HAZARD.

(¶ 1.) The World Health Organization (WHO) in its report (updated January, 2018) considered
Adolescent Pregnancy and held that complications during pregnancy and childbirth are the leading
cause of death for 15 to 19 year-old girls globally. It has been held as under:—
“Adolescent mothers (ages 10 to 19 years) face higher risks of eclampsia, puerperal
endometritis, and systemic infections than women aged 20 to 24 years, and babies born
to adolescent mothers face higher risks of low birth-weight, preterm delivery, and severe
neonatal conditions than those born to women aged 20 to 24 years.
Adolescent pregnancy remains a major contributor to maternal and child mortality, and
to intergenerational cycles of ill-health and poverty. Pregnancy and childbirth
complications are the leading cause of death among 15 to 19 year-old girls globally, with
low and middle-income countries accounting for 99% of global maternal deaths of
women ages 15 to 49 years.”
(¶ 2.) The Ministry of Health and Family Welfare, Government of Maharashtra has prepared the
MTP (Amendment) Bill and the notification in that regard was published on 29.10.2014. The State
Government has proposed amendment to Section 3 of the Act of 1973 and clause (C) is proposed
to be added which reads thus:

“the provisions of sub-section (2) of section 3 as relate to the length of the pregnancy
shall not apply to the termination of a pregnancy by a registered health care provider
where the termination of such pregnancy is necessitated by the diagnosis of any of the
substantial foetal abnormalities as may be prescribed.”

76
Bhavikaben v. State of Gujarat and Ors., 3 RCR (C) 312 (2016).
77
R and Ors. v. State of Haryana and Ors., 1 SCR 584 (1987).

26
MEMORANDUM ON BEHALF OF APPELLANT

To which Justice R.M. Borde remarked:

“Considering the above proposed amendment, according to us, the interpretation which
we have put to Section 5 of the Act of 1971 appears to be a logical and same is in
consonance with the proposed changes as suggested by the State in the MTP
(Amendment) Bill notified on 29.10.2014.”78

3.2.1. THAT TERMINATION OF PREGNANCY OF A HIV POSITIVE VICTIM IS PARAMOUNT TO

PREVENT FURTHER TRANSMISSION.

(¶ 1.) Being HIV +ve, as the life span of the victim has been shortened and the quality of life stands
substantially eroded, hence it would be difficult for the victim to bring up the child who, in all
probabilities, is likely to be infected by HIV. Right to life does not mean mere animal existence
but something more.79 In this regard, reliance has been placed on the provision of Section 10 of
Human Immunodeficiency Virus and AIDS (Prevention and Control) Act, 2017 which prescribes
that every person who is HIV +ve should take all reasonable precautions to prevent the
transmission of HIV to other persons. Section 10 reads as follows:-

"Every person, who is HIV-positive and has been counseled in accordance with the
guidelines issued or is aware of the nature of HIV and its transmission, shall take all
reasonable precautions to prevent the transmission of HIV to other persons which may
include adopting strategies for the reduction of risk or informing in advance his HIV
status before any sexual contact with any person or with whom needles are shared with."

(¶ 2.) The transmission of HIV from a HIV-positive mother to her child during pregnancy, labour,
delivery or breastfeeding is called mother-to-child transmission. In the absence of any intervention,
transmission rates range upto 45%. 80

In such cases baby should be given a drug called zidovudine (in syrup form) for 6 weeks to provide
extra protection against HIV infection, this medicine cost around Rs. 90,000 per week. 81 After that,

78
Id., at 57.
79
Bodhisattwa Gautam v. Subhra Chakraborty, A.I.R. 922 (1996).
80
World Health Organigation, Mother-to-child transmission of HIV, HIV/AIDS (Apr. 26, 2018 10:27 PM),
http://www.who.int/hiv/topics/mtct/en/.
81
Paediatr Child Health, Information for Pregnant Women who have HIV, National Center for Biotechnology
Information, (Apr. 26, 2018, 10:43 PM), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2817775/.

27
MEMORANDUM ON BEHALF OF APPELLANT

until you know whether the baby is HIV positive, the baby should be given an antibiotic (called
trimethoprim/sulphamethoxazole (TMP/SMX), also known as Septra (manufactured by Glaxo
Wellcome Inc.) or Bactrim (manufactured by Hoffmann-La Roche Limited), to help to prevent
pneumonia that can occur in babies with HIV infection. In the wake of such an unpropitious
situation coupled along with the financial condition of the appellant, it will evidently become a
burden for her.

(¶ 3.) In case of X v. Govt. of NCT of Delhi and Anr82. where 19 weeks of pregnancy was directed
to be terminated since the victim was found HIV +ve and the victim conceived pregnancy due to
forceful and undesirable sexual intercourse against her will, was allowed to terminate her
pregnancy.

(¶ 4.) Contemplating the aforementioned contentions and judicial precedents, it can be concluded
that the child in itself will prove to be a cause of social stigma and mental trauma for the victim.
In addition to this, it is pertinent to note that the child will on birth be infected by HIV will solely
add on to her agony. The life of child will be plagued with further diseases owing to HIV. In the
light of such circumstances, the victim may be allowed to live her shortened life span, being HIV
+ve, peacefully.

3.2.2. THAT TERMINATION CAN PREVENT MENTAL TRAUMA AND SOCIAL STIGMA.

“There are wounds that never show on the body that are deeper and more hurtful than
anything that bleeds”.

(¶ 1.) The victims of rape suffer from PTSD i.e. a disorder characterized by failure to recover after
experiencing or witnessing a terrifying event.83 In the patriarchal society marred by regressive
thoughts and practices, it is the victim of rape that carries more stigma than the offender84.
Similarly, in this case where the plaintiff is impregnated against her will, unless the pregnancy is
terminated the plaintiff will continue to suffer traumatic and psychological shock. 85

82
X v. Govt. of NCT of Delhi and Anr., 1 RCR (C) 510 (2014).
83
National International of Mental Health, Post-Traumatic Stress Disorder, Transforming the Understanding and
Treatment of Mental Illnesses (Apr. 27, 2018, 2:10 PM), https://www.nimh.nih.gov/health/topics/post-traumatic-
stress-disorder-ptsd/index.shtml.
84
Id., at 74.
85
Komalavalli v. C.R. Nair and Ors., Cri. L.J. 446 (1984).

28
MEMORANDUM ON BEHALF OF APPELLANT

(¶ 2.) The continuance of pregnancy will put the victim vulnerable to mental, physical, social and
economical problem. 86 The birth of the unwanted child will also put an extra burden on her,
considering the fact that the victim in this case is herself not financially sound and destitute. 87
Therefore termination of pregnancy shall be allowed.

4. THAT AN EXEMPTION CAN BE ALLOWED TO THE VICTIM TO TERMINATE HER PREGNANCY


WHICH HAS ALREADY PASSED THE MANDATORY PERIOD DUE TO THE TIME TAKEN FOR

FOLLOWING LEGAL PROCEDURES.

“Justice delayed is justice denied” 88

As, “the same is applicable in this case. Due to the superfluous time taken in legal procedures, the
victim had to undergo catastrophic pain, both mentally and physically.

(¶ 1.) In the present case the termination could have been done at the hospital itself, when the
victim expressed her consent to get terminated on 4th Sep 2017, as at that point of time the foetus
was under 20 weeks. But, due to the delay in the legal procedures the victim had to undergo such
a cataclysmic state.

(¶ 2.) The counsel contend to rely upon two of the Indian cases Bashir Khan v. State of Punjab
and Haryana and another89 and Vijender v. State of Haryana and Ors90
In both the cases, The Punjab and Haryana High Court examined and discussed the issue of
wastage of time in approaching the Court and the matters of consent of minor with regard to the
termination of her pregnancy. The time factor is a quintessential essence of availing the remedy of
medical termination in exigent situations. It has to be borne in mind that element of time is
extremely significant in a case of pregnancy as every day matters and, therefore, the hospitals
should be absolutely careful and treating physicians should be well advised to conduct themselves
with accentuated sensitivity so that the rights of a woman is not hindered.91 The fundamental
concept relating to bodily integrity, personal autonomy and sovereignty over her body have to be
given requisite respect while taking the decision and the concept of consent by a guardian in the

86
Janak Ramsang Kanzariya v. State of Gujarat, Cri. L.J. 1306 (2011).
87
Balwinder Kaur v. State of Haryana and Ors., MANU PH 4990 (2015).
88
Propounded by William E Gladstone.
89
Bashir Khan v. State of Punjab and Haryana and Anr., 4 RCR (Cr.) 148 (2014).
90
Vijender v. State of Haryana and Ors., 1 RCR (C) 163 (2015).
91
Id., at 16.

29
MEMORANDUM ON BEHALF OF APPELLANT

case of major should not be over emphasized. Instead of technical dismissal of the same, woman
should be forwarded to the medical board for an appropriate action immediately. Even though the
provisions of law warrant the consent of the legal guardian in cases of minority and/or mental
illness of the woman, but still the efforts should be made to give due regard to the real desire and
want of the woman, who is carrying the pregnancy. 92

(¶ 3.) Also, The Hon'ble Supreme Court of Canada interpreted Article 7 of the Canadian Charter
which guarantees an individual's right to life, liberty and freedom and security of a person. In the
leading case of Morgentalor Smoling and Scott v. R93, the Court focused on the bodily security
of the pregnant women. The Criminal Code of that country required a pregnant woman, who
wanted an abortion, to submit an application to a therapeutic committee, which resulted in delays.
The Supreme Court found that such a procedure infringed the guarantee of security of a person.
This subjected the pregnant woman to psychological stress.94

4.1. THAT CONCEPT OF BEST INTEREST OF THE VICTIM IS APPLICABLE HERE.

In the case of Suchita Srivastava and Anr. v. Chandigarh Administration95 the principle of best
interest was laid down. There are certain factors to be checked for determining the best interest of
the victim.

These factors are:


• Past and present wishes and feelings.
• Beliefs and values that may have influenced the decision being made, had the person had
capacity.
• Other factors that the patient would be likely to consider if they had capacity.

As said in Doctrine of parens patriae,96 wherein certain situation, the State should make certain
decisions in order to protect the interest of those who are unable to take care of themselves.
Therefore, in the present case, The appellant had undergone through precarious situations, besides
that it is her present wish that her pregnancy should be terminated.

92
Id., at 40.
93
Morgentalor Smoling and Scott v. R, 44 DLR 385 (1988).
94
R and Ors. v. State of Haryana, WP (C) 6733 (2016).
95
Id., at 48.
96
Gaurav Kumar Bansal v. Union of India, WP (C) No. 444 (2013).

30
MEMORANDUM ON BEHALF OF APPELLANT

The appellant would have difficulty in the upbringing of the child. No one would be there to take
care of the prospective child. The victim herself was staying in the NGO, and she wasn’t well off
to take care of the child. Thus, had she been in her capacity she would have consented to terminate
the child. Therefore, the plaintiff should be allowed to terminate her child. The decision of the
court should be guided by the interest of the victim alone and not those of other stakeholders such
as guardians and society in general.

5. THAT VICTIM IS ENTITLED TO GET COMPENSATION FOR NEGLIGENCE FOR IMPEDIMENT

CAUSED BY AUTHORITIES IN TERMINATING THE PREGNANCY.

The Key elements for negligence 97 to claim compensation are:98


• Duty: In the present case the doctors and the hospital authorities owe a duty of care towards
its patients.
• Breach: The victim gave her affirmation for the termination of pregnancy on 4th Sep 2017
i.e. when she was 17 weeks pregnant. As described in MTP Act the pregnancy can be
terminated under 20 weeks. Thus, the very act of the doctor, not to carry on with pregnancy
shows that there was a breach.
• Damage: Due to this breach of duty the victim was debarred from terminating her unwanted
pregnancy as it exceeded the limit prescribed under MTP Act, 1971.

(¶ 1.) The continuance of the injury creates a dent in the mind and the Appellant was compelled
to suffer the same. One may have courage or cultivate courage to face a situation, but the shock of
rape was bound to chain and enslave her with the trauma she had faced and cataclysm that she has
to go through. Her condition could not be reversed. The situation as was unredeemable. But a
pregnant one, she had to be compensated so that she lives her life with dignity and the Authorities
of the State who were negligent would understand that truancy had no space in a situation of the
present kind. Dignity is considered to be the quintessential quality of personality. 99

(¶ 2.) It is most humbly submitted before the Hon’ble Court that due to the negligence of
Authorities, victim was forced to undergo existing miserable situations, therefore she should be

97
Jacob Mathew v. State of Punjab, A.I.R. SC 3180 (2005).
98
State of Rajasthan v. Vidhyavati, A.I.R. SC 933 (1962).
99
Charu Khanna v. Union of India, A.I.R. SC 839 (2015).

31
MEMORANDUM ON BEHALF OF APPELLANT

compensated. She is entitled to Victim Compensation Scheme under Section 357A100 of Code of
Criminal Procedure, 1973. The petitioner is eligible to get an appropriate sum as provided under
this act for the rape victim.

(¶ 3.) It is most humbly requested that State should also provide all medical facilities to the
petitioner. The petitioner is also eligible to get compensation from the State under the Public law
remedy as the authorities under the State have acted with quite promptitude in terminating the
pregnancy and procrastinated the matter, as a consequence of which she had to lead a life of terrible
agony and anguish. 101

(¶ 4.) The victim expressed her willingness in no uncertain terms to terminate her pregnancy as
she had been raped and a FIR had been lodged, it was the obligation of the competent authorities
to proceed with the termination to avoid any further complications.

(¶ 5.) The concept of ‘compelling state interest’102 is not applicable in this case. When the statutory
functions is not carried out and fundamental choice which is available to the appellant is totally
curtailed, the victim is entitled for compensation, for the entire action has caused her immense
mental torture. She is being compelled to carry her pregnancy for its full term, which has caused
her incalculable harm and irreversible injury giving rise to emotional trauma. Therefore, when
there is violation of such right, due to negligence of the State functionaries, the victim is entitled
to get compensation, as seen in the cases of Nilabati Behera v. State of Orissa,103 D.K. Basu v.
State of West Bengal, 104 Chairman, Railway Board and Ors. v. Chandrima Das and Ors105. In
Sube Singh v State of Haryana106 it was seen that the award of compensation against the State is
an appropriate and effective remedy for redress of an established infringement of a fundamental
right under Article 21 107, by a public servant. The quantum of compensation will however depends
on the facts and circumstances of each case.

100
Code of Crimanal Procedure, 1973, § 357A, No. 2, Acts of Parliament, (1974).
101
Id., at 84.
102
Id., at 46.
103
Nilabati Behera v. State of Orissa, A.I.R. SC 1960 (1993).
104
D.K. Basu v. State of West Bengal, 1 SCC 416 (1997).
105
Chairman Railway Board and Ors. v. Chandrima Das and Ors., A.I.R. SC 988 (2000).
106
Sube Singh v. State of Haryana and Ors., A.I.R. SC 1117 (2006).
107
Id., at 94.

32
MEMORANDUM ON BEHALF OF APPELLANT

(¶ 6.) Dr. A.S. Anand, (as His Lordship then was), in his concurring opinion, expressed that:

“The relief of monetary compensation, as exemplary damages, in proceedings under


Article 32 by the Supreme Court or under Article 226 by the High Courts, for established
infringement of the indefeasible right guaranteed under Article 21 of the Constitution is
a remedy available in public law and is based on the strict liability for contravention of
the guaranteed basic and indefeasible rights of the citizen. Therefore, when the court
moulds the relief by granting ‘compensation’ in proceedings under Articles 32 or 226 of
the Constitution seeking enforcement or protection of fundamental rights, it does so under
the public law by way of penalizing the wrongdoer and fixing the liability for the public
wrong on the State which has failed in its public duty to protect the fundamental rights of
the citizen. The payment of compensation in such cases is not to be understood, as it is
generally understood in a civil action for damages under the private law but in the
broader sense of providing relief by an order of making ‘monetary amends’ under the
public law for the wrong done due to breach of public duty, of not protecting the
fundamental rights of the citizen. The compensation is in the nature of ‘exemplary
damages’ awarded against the wrongdoer for the breach of its public law duty and is
independent of the rights available to the aggrieved party to claim compensation under
the private law in an action based on tort, through a suit instituted in a court of competent
jurisdiction or/and prosecute the offender under the penal law.”108

108 Id.

33
MEMORANDUM ON BEHALF OF APPELLANT

PRAYER

Wherefore in the light of facts stated, issues raised, arguments advanced and authorities cited, the
Counsel on behalf of the Appellant requests this court to adjudge and declare that:

I. That the Special Leave Petition filed by the Appellant before the Hon’ble Supreme Court is
Maintainable.

II. That the Medical Termination of Pregnancy of the victim shall be permitted beyond the
statutory period of 20 weeks.

III. That the Medical Termination of Pregnancy of the victim beyond 24 weeks shall be permitted
on grounds of being HIV Positive.

IV. That the exemption shall be allowed for the medical termination of pregnancy as there was no
delay in the legal proceedings.

V. That the victim is entitled to compensation owing to fact that there was negligence on part of
the authorities while carrying out of their duties.

And pass any other order as the Court may deem fit in the interest of justice, for which the
Appellant shall duty bound and ever pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

COUNSEL ON BEHALF OF THE APPELLANT

34