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 RESPONDENT

DRAWN AND FILED BY THE COUNSEL ON BEHALF OF THE RESPONDENT: STATE OF PEPSU
 MEMORANDUM ON BEHALF OF RESPONDENT

TABLE OF CONTENTS

LIST OF ABBREVIATIONS ............................................................................................................... 4

INDEX OF AUTHORITIES ................................................................................................................ 6

STATEMENT OF JURISDICTION .................................................................................................... 10

STATEMENT OF FACTS ................................................................................................................. 11

ISSUES FOR CONSIDERATION ....................................................................................................... 13

SUMMARY OF ARGUMENTS ......................................................................................................... 14

WRITTEN SUBMISSION ................................................................................................................. 16

1. THAT THE SPECIAL LEAVE PETITION FILED WITH THE SUPREME COURT OF INDIA IS
NOT MAINTAINABLE ................................................................................................................ 16
1.1 THAT THERE DOESN’T EXISTS GRAVE MISCARRIAGE OF JUSTICE .............................. 16
1.2 THAT THERE DOESN’T EXIST QUESTION OF PUBLIC IMPORTANCE ............................. 18
1.3 THAT THERE DOESN’T EXISTS SUBSTANTIAL QUESTION OF LAW .............................. 18
2. THAT TERMINATION OF PREGNANCY CAN NOT BE ALLOWED AFTER 20 WEEKS BY
CONSENT OF VICTIM................................................................................................................ 19
2.1 THAT TERMINATION OF PREGNANCY UNDER MTP ACT OF 1971 CAN NOT BE CONDUCTED
............................................................................................................................................... 20
2.2 THAT INTERPRETATION OF MTP ACT CAN’T BE CHALLENGED ........................................ 22
2.2.1 THAT APPELLANT CAN’T RELY ON THE MTP AMENDMENT BILL, 2014 .................... 23
3. THAT TERMINATION OF PREGNANCY AFTER 24 WEEKS OF A HIV VICTIM IS LEGALLY
NOT POSSIBLE........................................................................................................................... 24
3.1 THAT FOETUS CAN’T LIFE BE TERMINATED ON THE GROUND OF HIV ............................ 24
3.2 THAT THE SPECIAL CASES HAVE NO IMPACT ON PRESENT CASE .................................... 25
3.3 THAT BEST INTEREST OF VICTIM DOESN’T OVERSHADOW COMPELLING STATE INTEREST
............................................................................................................................................... 26
3.4 THAT FOETUS POSSESS LIFE IN ISLAM COMMUNITY ........................................................ 28
4. THAT EXEMPTION SHOULD NOT BE ALLOWED EVEN AFTER THE PASSAGE OF
MANDATORY PERIOD BECAUSE OF TIME TAKEN IN FOLLOWING LEGAL PROCEDURES ..... 29
4.1 THAT TIME TAKEN WAS IN BEST INTEREST OF VICTIM ................................................... 29

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 MEMORANDUM ON BEHALF OF RESPONDENT

4.2 THAT THE DELAY CAUSED IN CONSTITUTING THE MEDICAL BOARD WAS REASONABLE
DELAY .................................................................................................................................... 30
5. THAT THE VICTIM IS NOT ENTITLED TO GET COMPENSATION UNDER NEGLIGENCE FOR
THE DELAY CAUSED BY THE AUTHORITIES IN TERMINATING THE UNWANTED PREGNANCY.
................................................................................................................................................... 31
5.1 THAT NEGLIGENCE WAS NOT COMMITTED BY AUTHORITIES .......................................... 31
5.2 THAT AUTHORITIES FOLLOWED THE RULES UNDER THE STATUTE WHICH THEY ARE
OBLIGED TO ........................................................................................................................... 32
5.3 THAT THE MEDICAL AUTHORITIES WERE BOUND BY THE HIPPOCRATIC OATH .............. 33

PRAYER ......................................................................................................................................... 34

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 MEMORANDUM ON BEHALF OF RESPONDENT

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

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 MEMORANDUM ON BEHALF OF RESPONDENT

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

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 MEMORANDUM ON BEHALF OF RESPONDENT

INDEX OF AUTHORITIES

LIST OF CASES

A.V. Papayya Sastry v. Govt. of Andhra Pradesh,AIR SC 1546 (2007). ..................................... 11

Aero Traders (P) Ltd. v. Ravinder Kumar Suri, AIR SC 15 (2005). ............................................ 11
Ashaben v. State of Gujarat, 4 Crimes 1 (Guj.) (2015) ................................................................ 20
Ashok Kumar Pandey v. State of Delhi, AIR SC 1468 (2002)..................................................... 14
Balakrishna v. Rmaswami, A.I.R. SC 195 (1965). ....................................................................... 12
Bhoi Kunjalben Narsinhbhai v. State of Gujarat, SCrA (QUASHING) NO. 1211 of 2017. ....... 20
C.C.E v. Standard Motor Products, A.I.R. SC 1298 (1979). ........................................................ 12
C.K. Pandian and Others v. S.R. Trust and Others, 1 C.P.C. 501 (2014)..................................... 25
Chandrakant Jayantilal Suthar v. State of Gujarat, 4 RCR (Cr.) 876 (2016). ............................... 20
Chandrakant Jayantilal Suthar v. State of Gujarat, 8 SCC 721 (2015). ........................................ 18
Charan Lal Sahu v. Union of India, AIR SC 1480 (1990)........................................................... 22
D.C. Wadhwa v. State of Bihar, AIR SC 579 (1987). .................................................................. 11
Dadi Jagannadham v. Jammulu Ramulu, 7 SCC 71 (2001) ......................................................... 17
Dale & Carrington Invt. Ltd. v. P.K. Prathapan, 1 SCC 212 (2005). .......................................... 13
Darshan Singh v. Ram Pal Singh, AIR SC 1654 (1991). ............................................................. 11
Delhi Airtech v. State of Uttar Pradesh, 4 SCC (Civ) 673 (2011). ............................................... 17
Directorate of Enforcement v. Deepak Mahajan, SCC (Cri) 785 (1994). .................................... 16
Dr. Jacob George v. State of Kerala, 3 SCC 430 (1994). ............................................................. 14
Dwarikesh Sugar Industries Ltd. v. Prem Heavy Engineering Works Lt., AIR SC 2477 (1997). 13
Esher Singh v. State of A.P., AIR SC 3030 (2004); ..................................................................... 11
Hardeep Singh v. State of Punjab, 3 SCC 92 (2014). ................................................................... 17
Harjit Kaur v. State of Punjab, AIR 1999 SC 2571. ..................................................................... 20
Hull v. Mckenna, IR 402 (1926). .................................................................................................. 10
Indu Devi v. State of Bihar, SCC OnLine Pat 786 (2017). ........................................................... 15
Jacob George v. State of Kerala, SCC (Cri) 774 (1994). .............................................................. 16
Jacob Mathew v. State of Punjab, 6 SCC 1 (2005). ...................................................................... 25
Janshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, 3 SCC 214 (2004). ................. 12
Kunhayammed v. State of Kerala, AIR SC 2587 (2000). ............................................................. 11

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Kusum Sharma and Ors. v. Batra Hospital & Medical Research Centre, AIR SC 1050 (2010). . 24
Lichhamadevi v. State of Rajasthan, AIR SC 1785 (1988). ......................................................... 13
M. Pentiah v. Muddala Veeramallappa, AIR SC 1107 (1961) ..................................................... 17
M.C. Mehta v. Union of India, AIR SC 4618 (2004); .................................................................. 11
M.G Abrol, Asddl. Collector of Customs v. Shantilal Chhotelal & Co., AIR SC 197 (1966). ... 11
Mahindra & Mahindra Ltd. v. Union of India, AIR SC 798 (1979). ............................................ 14
Meera Santosh Pal v. Union of India, AIR SC 461 (2017)........................................................... 19
Mohd. Ali Khan v. CWT, AIR 1997 SC 1165.............................................................................. 17
Murari Mohan Koley v. The state and Anr., 2 CCR 57 (2005). ................................................... 16
Murtaza and Sons v. Nazir Mohd. Khan, AIR SC 668 (1970). .................................................... 12
N. Suriyakala v. A. Mohandoss & Ors., 9 SCC 196 (2007). ........................................................ 12
Nalinakhya Bysack v. Shyam Sunder Haldar, AIR SC 148 (1953).............................................. 17
Narpat Singh v. Jaipur Development Authority, AIR SC 2036 (2002); ....................................... 11
P.S. Sathappan v. Andhra Bank Ltd., 11 SCC 672 (2004). .......................................................... 17
Pankaj Bhargava v. Mohinder Nath, AIR SC 1233 (1991). ......................................................... 11
Pawan Kumar v. State of U.P., 7 SCC 148 (2015). ...................................................................... 11
Pritam Singh v. The State, AIR 169 (1950). ................................................................................. 12
Punjab Beverages Ltd. v. Suresh Chand, AIR SC 99 (1978). ...................................................... 11
Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum, 9 SCC 552 (1997). .................. 26
Ramakant Rai v. Madan Rai, AIR SC 77 (2004);......................................................................... 11
Sabra v. State of Haryana and Ors., 1 RCR(Criminal)575 (2018). .............................................. 20
Santosh Hazasri V. Purushottam Tiwari, 3 SCC 179 (2001)........................................................ 13
Shaikh Ayesha Khatoon v. Union Of India, 1 RCR(Civil)820 (2018). ........................................ 17
Shankar Kisanrao Khade v. State of Maharashtra, Cri LJ 2595 (2013). ...................................... 26
Sheetal Shankar Salvi & Another v. Union of India, 5 SCALE 428 (2017). ............................... 20
Shewata v. State of Haryana and Ors., 183 PLR 257 (2016)...................................................... 20
Shivanand Gaurishankar Baswanti v. Laxmi Vishnu Textile Mills, 13 SCC 323 (2008). ........... 11
Shivnarayan Laxminarayan Joshi v. State of Maharashtra, AIR SC 439 (1980); ........................ 11
Sir Chunilal Mehta and sons, Ltd. v. Century Spinning, AIR SC 1314 (1962). ........................... 13
Sri. Ram Narain Medhi v. State of Bombay, AIR 1959 SC 459 .................................................. 17
Srivastava and Anr. v. Chandigarh Administration, 9 SCC 1 (2009). ......................................... 20

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 MEMORANDUM ON BEHALF OF RESPONDENT

State of Maharastra v. Ravdeep Singh, 9 SCC 184 (2000).......................................................... 13

State of Punjab v. Gurdilal Singh, AIR 1980 SC 319. .................................................................. 26
State of Rajasthan v. Vidhyavati, AIR SC 933 (1962). ................................................................ 26
Subbi v. State of Haryana and Ors., 188PLR438 (2017). ............................................................. 20
Suchita Srivastava and Anr. v. Chandigarh Administration, AIR SC 235 (2010)........................ 20
Surendra Chauhan v. State of M.P., AIR SC 1436 (2000). .......................................................... 15
Surjibhai Badaji Kalasva v. State of Gujarat, SCrA (DIRECTION) NO. 585 of 2018. ............... 20
Tata Cellular v. Union of India, AIR SC 11 (1996)...................................................................... 14
The Balasinor Nagrik Co-operative Bank Ltd. v. Babubhai Shankerlal, AIR SC 849 (1987) ..... 17
V. Krishnan v. G. Rajan alias Madipu Rajan, 1 Mad LW (Cri) 16 (1994). .................................. 18
Vemareddy Kumarswamy Reddy v. State of A.P, 2 SCC 670 (2006). ........................................ 24
Vishaka v. State of Rajasthan, AIR SC 3011 (1997). ................................................................... 13
X v. Govt. of NCT of Delhi and Anr, 1 RCR (Civil) 510 (2014). ................................................ 19
X v. Union of India and Others, AIR SC 3525 (2016). ................................................................ 19
Z v. State of Bihar, AIR SC 3908 (2017). .............................................................................. 15, 19
Zahira Habibullah Sheikh v. State of Gujarat, AIR SC 3467 (2004). ......................................... 11

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 MEMORANDUM ON BEHALF OF RESPONDENT

STATUTES

• ABORTION ACT, 1967.

• CONSTITUTION OF INDIA.
• HUMAN IMMUNODEFICIENCY VIRUS AND AIDS (PREVENTION AND CONTROL) ACT, 2017.
• INDIAN M AJORITY ACT, 1930.
• MEDICAL TERMINATION OF PREGNANCY ACT, 1971.
• MENTAL HEALTH CARE ACT, 2017.
• 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

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 MEMORANDUM ON BEHALF OF RESPONDENT

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’ble 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) filed before the Court, under Article 136 of the Constitution
shall be in Form No. 28 appended to the rules. No separate application for interim relief has been filed. Interim
prayer if any should be incorporated in Form No. 28.

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 MEMORANDUM ON BEHALF OF RESPONDENT

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 WITH NAV JEEVAN:

• 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 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.

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 MEMORANDUM ON BEHALF OF RESPONDENT

• 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.

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 MEMORANDUM ON BEHALF OF RESPONDENT

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?

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 MEMORANDUM ON BEHALF OF RESPONDENT

SUMMARY OF ARGUMENTS

1. THAT THE SPECIAL LEAVE PETITION FILED WITH THE SUPREME COURT OF INDIA IS
NOT MAINTAINABLE.

It is most humbly and respectfully submitted before this Hon’ble Court that the Special
Leave Petition is not maintainable as there is no miscarriage of justice, the question is not of
public importance and there exists no substantial question of law.

2. THAT TERMINATION OF PREGNANCY CAN NOT BE ALLOWED AFTER 20 WEEKS BY

CONSENT OF VICTIM.

It is most humbly and respectfully submitted before this Hon’ble Court that the termination
of pregnancy beyond 20 weeks is ultra vires to the MTPA. It is also to be noted that the
section of MTPA shall be read as a whole and not as a saving clause. . The Court, while
interpreting statutory provisions, cannot add words to a Statute, or read words into it which
are not part of it, especially when a literal reading of the same produces an intelligible result.

3. THAT TERMINATION OF PREGNANCY AFTER 24 WEEKS OF A HIV VICTIM IS LEGALLY

NOT POSSIBLE.

It is most humbly and respectfully submitted before this Hon’ble Court that the termination
of pregnancy is not possible, when it has attained the period of 24 weeks. It is also
contended that it’s not absolute that the foetus will suffer from HIV, hence this ground
stands void in asking for the termination. Also, life of foetus has been focused upon in the
lights of law of Islamic community.

4. THAT EXEMPTION SHOULD BE ALLOWED EVEN AFTER THE PASSAGE OF MANDATORY

PERIOD BECAUSE OF TIME TAKEN IN FOLLOWING LEGAL PROCEDURES.

It is most humbly and respectfully submitted that the time taken was in the best interest of
the victim. Allowing her, to terminate the pregnancy can be life threatening to her. It is also
contended that time taken to constitute a medical board was justified and there was no
impediment in the legal procedures.

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 MEMORANDUM ON BEHALF OF RESPONDENT

5. THAT THE VICTIM IS NOT ENTITLED TO GET COMPENSATION UNDER NEGLIGENCE FOR
THE DELAY CAUSED BY THE AUTHORITIES IN TERMINATING THE UNWANTED
PREGNANCY.

It is most humbly and respectfully submitted that there was no negligence on the part of the
medical authorities. They have their duties towards their patients, and they abided it in a
proficient manner. Therefore, no compensation should be rewarded on the grounds of
negligence.

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 MEMORANDUM ON BEHALF OF RESPONDENT

WRITTEN SUBMISSION

1. THAT THE SPECIAL LEAVE PETITION FILED WITH THE SUPREME COURT OF INDIA IS NOT
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 three 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

1.1 THAT THERE DOESN’T EXISTS GRAVE MISCARRIAGE OF JUSTICE.

(¶ 1.) The Supreme Court has described the nature of its power under Art. 136 as follows:7

“The exercise of jurisdiction conferred by Art. 136 of the Constitution on this Court is
discretionary.8 It does not confer a right to appeal 9 on a party to litigation, it only
confers a discretionary power of widest amplitude on this Court to be exercised for
satisfying the demands of justice. 10 On the one hand, it is an exceptional power to be
exercised sparingly, with caution and care and to remedy extraordinary situations 11 or
situations occasioning gross failure of justice 12; on the other hand, it is an overriding
power whereunder the court may generously step in to impart justice and remedy
injustice.”

3
Hull v. Mckenna, IR 402 (1926).
4
Shivnarayan Laxminarayan Joshi v. State of Maharashtra, AIR SC 439 (1980);
Pawan Kumar v. State of U.P., 7 SCC 148 (2015).
5
D.C. Wadhwa v. State of Bihar, AIR SC 579 (1987).
6
Pankaj Bhargava v. Mohinder Nath, AIR SC 1233 (1991).
7
Narpat Singh v. Jaipur Development Authority, AIR SC 2036 (2002);
N. Suriyakala v. A. Mohandoss, 9 SCC 196 (2007).
8
Kunhayammed v. State of Kerala, AIR SC 2587 (2000).
9
Darshan Singh v. Ram Pal Singh, AIR SC 1654 (1991).
10
Punjab Beverages Ltd. v. Suresh Chand, AIR SC 99 (1978).
11
M.G Abrol, Asddl. Collector of Customs v. Shantilal Chhotelal & Co., AIR SC 197 (1966).
12
Shivanand Gaurishankar Baswanti v. Laxmi Vishnu Textile Mills, 13 SCC 323 (2008).

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 MEMORANDUM ON BEHALF OF RESPONDENT

(¶ 2.) This power has been plenary, limitless,13 “adjunctive”, and unassailable on the grounds of
unconstitutionality. 14 A word of caution exist that judicial decisions has to be exercised in
accordance with law and set legal principles. 15 The Hon’ble High Court in the present case held
the decision taking into the consideration the provisions of MTP Act, 1971 16 and imparted proper
Justice to the Appellant.

(¶ 3.) The Supreme Court has observed in Pritam Singh v. The State17 “that the power under Art
136- “is to be sparingly and exceptional cases only and as far as possible, a more or less uniform
standard should be adopted in granting special leave in the wide range of matters which can
come up before it under this Article. By virtue of this Article we can grant special leave in civil
cases, in criminal cases, in income tax cases, in cases which come up before different kinds of
tribunals and in a variety of cases.” 18

(¶ 4.) The Court has emphasized: “The only uniform standard which in our opinion can be laid
down in the circumstances is that Court should grant special leave to appeal in those cases when
special circumstances are shown to exist.” 19

(¶ 5.) In the present case according to the report of medical board 20 no grave injury to the victim
arises if she carries on with her pregnancy and that no sign of abnormality detected in that foetus
may possess, neither had she suffered from grave mental injury as she filled special leave
petition after 20 weeks. So section 5 of the Act 21 is not applicable here, thereby section 3 of Act
stand reasonable and same was imparted by High Court as a result of which it can be observed
that there was no miscarriage of justice.

13
Esher Singh v. State of A.P., AIR SC 3030 (2004);
A.V. Papayya Sastry v. Govt. of Andhra Pradesh,AIR SC 1546 (2007).
14
Zahira Habibullah Sheikh v. State of Gujarat, AIR SC 3467 (2004).
15
M.C. Mehta v. Union of India, AIR SC 4618 (2004);
Ramakant Rai v. Madan Rai, AIR SC 77 (2004);
Aero Traders (P) Ltd. v. Ravinder Kumar Suri, AIR SC 15 (2005).
16
Medical Termination of Pregnancy Act, 1971.
17
Pritam Singh v. The State, AIR 169 (1950).
18
N. Suriyakala v. A. Mohandoss & Ors., 9 SCC 196 (2007).
19
Murtaza and Sons v. Nazir Mohd. Khan, AIR SC 668 (1970).
20
Factsheet para 11.
21
MTP Act, 1971.

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 MEMORANDUM ON BEHALF OF RESPONDENT

1.2 THAT THERE DOESN’T EXIST 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 22 is the residuary
power of SC to do justice where the court is satisfied that there is injustice. 23 The principle is that
this court would never do injustice nor allow injustice being perpetrated for the sake of
upholding technicalities. 24 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. 25

(¶ 2.) Law is for the protection of interest of people in the society 26 and claims to protect the
interest of women, 27 but connecting each and every case with Human Rights when even plain
reading of provision28 can put forth justice will bring chaos in the society. The issue in the
present case was about termination of pregnancy of that particular woman according to her
medical report and so was the judgment made by Hon’ble High Court, these sort of cases come
under the category of special case i.e. they don’t set precedence for other cases, hence we can
conclude that present case has no question of public importance. 29

1.3 THAT THERE DOESN’T EXISTS SUBSTANTIAL QUESTION OF LAW.

(¶ 1.) Where findings are entered without considering relevant materials and without following
proper legal procedure, SC interference is called for. 30 The expression “substantial question of
law”31 has acquired various a definite connotations through various judicial pronouncements. 32 A
Constitutional Bench33 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

22
N. Suriyakala v. A. Mohandoss & Ors, 9 SCC 196 (2007).
23
C.C.E v. Standard Motor Products, A.I.R. SC 1298 (1979).
24
Janshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, 3 SCC 214 (2004).
25
Balakrishna v. Rmaswami, A.I.R. SC 195 (1965).
26
Jeremy Bentham, An introduction to the principles of Morals and Legislation, (1789).
27
Vishaka v. State of Rajasthan, AIR SC 3011 (1997).
28
State of Maharastra v. Ravdeep Singh, 9 SCC 184 (2000).
29
Lichhamadevi v. State of Rajasthan, AIR SC 1785 (1988).
30
Dale & Carrington Invt. Ltd. v. P.K. Prathapan, 1 SCC 212 (2005).
31
Santosh Hazasri V. Purushottam Tiwari, 3 SCC 179 (2001).
32
Dwarikesh Sugar Industries Ltd. v. Prem Heavy Engineering Works Ltd., AIR SC 2477 (1997).
33
Sir Chunilal Mehta and sons, Ltd. v. Century Spinning and Manufacturing Co. Ltd., AIR SC 1314 (1962).

18
 MEMORANDUM ON BEHALF OF RESPONDENT

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
Privy Council or by the federal court or is not free from difficulty or calls for discussion
of alternative views.” 34

(¶ 2.) In the present case all the procedures were followed, proper multi disciplinary body was
formed which conducted multiple tests, and presented report of same in the Court, 35 hence all the
relevant materials were submitted and in order to save life of victim the Court denied termination
of pregnancy. No question of law arises in the present case as it holds no question of general
public importance as discussed above, instead the issue was whether the case substantially
affects the rights of the parties or not. 36 In the present case no infringement of right, prima facie
is observed instead court ordered for protection of life of victim as there was a risk to her life 37 if
pregnancy was terminated. Right to choose under Right to privacy and dignity does not mean
you can kill yourself to choose what is beneficial for you. 38

2. THAT TERMINATION OF PREGNANCY CAN NOT BE ALLOWED AFTER 20 WEEKS BY

CONSENT OF VICTIM.

“I feel that the greatest destroyer of peace today is abortion, because it is a war against
the child, a direct killing of the innocent child, murder by the mother herself.”

—MOTHER TERESA

As succinctly expressed by Justice Hansaria B.L.:39

“1. Life is said to be the most sublime creation of God. It is this belief and conception
which lies at the root of the arguments, and forceful at that, by many religious
denominations that human beings cannot take away life, as they cannot give life. This
idea is so intense with some religious leaders that they would even oppose any measure

34
Id. at 33.
35
Id., at 19.
36
Mahindra & Mahindra Ltd. v. Union of India, AIR SC 798 (1979).
37
Ashok Kumar Pandey v. State of Delhi, AIR SC 1468 (2002).
38
Tata Cellular v. Union of India, AIR SC 11 (1996).
39
Dr. Jacob George v. State of Kerala, 3 SCC 430 (1994).

19
 MEMORANDUM ON BEHALF OF RESPONDENT

of birth control. Abortion or miscarriage would be opposed with greater force by these
persons.

2. Mahatma Gandhi, Father of the Nation, urged long back in Harijan that God alone
can take life because He alone gives it. For the Jains, taking away of even animal life is
a sin, as, according to them, animals are as much part of God as human beings.
Buddhists too preach Ahimsa.

3. Our Reg Veda II recites: Grant us a hundred autumns that we may see the manifold
world. May we attain the long lives which have been ordained as from yore.
Atharva Veda I contains the following: May we be enabled to see the sun for a longtime.
The aforesaid shows that life is beyond price and it is not only a legal wrong, but a
moral sin as well, to take away life illegally.”

2.1 THAT THE TERMINATION OF PREGNANCY UNDER MTP ACT OF 1971 CAN NOT BE
CONDUCTED.

(¶ 1.) In order to determine the question of medical termination of pregnancy of the victim, it is
relevant to analyze the provisions of the Act, 40 i.e., Sections 3 & 5 of the Act. The Medical
Termination of Pregnancy Act was first enacted in the year 1971 modeled on the Abortion Act
on 1967 which had been passed in the United Kingdom. The perusal of Section 3 & 5 of the Act,
suggests that abortion is permissible only if the specified conditions are met. The legislative
intent was to provide a qualified right to abortion and does not recognize abortion in a routine
manner.

(¶ 2.) Sub-section 2(a)(b) of Section 3 of the Act stipulates that pregnancy up to 12 weeks can be
terminated by a medical practitioner whereas when the pregnancy exceeds 12 weeks but does not
exceed 20 weeks then it can be terminated by a registered medical practitioner, 41 provided an
opinion is formed in good faith by no less than two registered medical practitioners 42 that the
continuation of pregnancy would involve a risk to the life of the pregnant woman or of grave
injury physical or mental health or, there is substantial risk if the child were born, it would suffer

40
Id., at 20.
41
Indu Devi v. State of Bihar, SCC OnLine Pat 786 (2017).
42
X v. Union of India, AIR SC 3525 (2016).

20
 MEMORANDUM ON BEHALF OF RESPONDENT

from such physical or mental abnormalities as to be seriously handicapped. 43 In the present case,
it’s nowhere stated that the foetus is suffering from any abnormality nor does it suggests that if
the victim is allowed to carry the pregnancy to its full course, then she will suffer any risk of life
or grave injury to her physical or mental health.

(¶ 3.) Explanation 1 of Sub-section 2 of Section 3, provides that such pregnancy which is alleged
to have been caused by rape shall be presumed to constitute grave injury to the mental health of
the pregnant woman.44 In the present case, the victim has alleged that she had been ravished, but
her conduct of not disclosing the incident of rape for more than 13 weeks and deciding not to get
the pregnancy terminated for more than 20 weeks, as the writ application has been filed after 20
weeks of pregnancy, prima facie does not suggest that such alleged conceivement has really
caused grave injury to the mental health of the victim. Moreover, the termination, as
contemplated under Section 3 of the Act, 1971, is only permissible up to 20 weeks of pregnancy.
Definitely the effort for termination was made on behalf of the victim in the 17th week of
pregnancy, but the present writ application has been filed before this Court after 20 weeks of her
pregnancy.

(¶ 4.) The explanation to Section 3 of the Act stipulates the termination of pregnancy, when the
same is result of rape or failure of birth control method, since both the eventualities have been
equated with grave injury to the mental health of the woman. 45 Hence, no reliance can be placed
on the Explanations to Section 3 of the Act, as the pregnancy of the victim, was already beyond
the period of twenty weeks on the date of filing of this writ petition before the Hon’ble High
Court.

(¶ 5.) Sub-section 3 of Section 3 of the Act stipulates that the actual or reasonable foreseeable
environment of the pregnant woman has to be taken into account, while determining, whether the
continuance of a pregnancy would involve such risk of injury to the health, as is mentioned in
Sub-section 2 of Section 3 of the Act. 46 This provision of the Act, also does not waive the
embargo of a period of twenty weeks of pregnancy as the upper limit for permissibility of
termination of pregnancy. Nowhere in the factsheet it is reported that the victim's actual

43
Surendra Chauhan v. State of M.P., AIR SC 1436 (2000).
44
Z v. State of Bihar, AIR SC 3908 (2017).
45
Jacob George v. State of Kerala, SCC (Cri) 774 (1994).
46
Murari Mohan Koley v. The state and Anr., 2 CCR 57 (2005).

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 MEMORANDUM ON BEHALF OF RESPONDENT

reasonable foreseeable environment would be less risky in allowing the continuation of

pregnancy to its full term, instead the report suggested that termination of pregnancy would
require major surgical procedure along with the subsequent consequences such as bleeding,
sepsis and anesthesia hazards.

2.2 THAT INTERPRETATION OF MTP ACT CAN’T BE CHALLENGED.

“The Court can only iron out the creases but while doing so, it must not alter the fabric,
of which an Act is woven.”47

(¶ 1.) While interpreting the provisions of Section 5 of the Act of 1971, it must be borne in mind
the principle that the section must be construed as a whole whether or not one part is a saving
clause and similarly elementary rule of construction of section is made of all the parts together
and that it is not permissible to omit any part of it; the whole section must be read together. 48 The
words of Statute are first understood in their natural, ordinary and popular sense and phrases and
sentences are construed according to their grammatical meaning unless there be something in the
context, or in the object of the statute in which they occur or in the circumstances in which they
are used, to show that they were used in special sense different from their ordinary grammatical
meaning.49

(¶ 2.) The basic principle that while interpreting the provisions of a Statute one can neither add
nor subtract even a single word, has to be kept in mind. 50 A section is to be interpreted by
reading all of its parts together, and it is not permissible to omit any part thereof. The Court
cannot proceed with the assumption that the legislature, while enacting the Statute has committed
a mistake; it must proceed on the footing that the legislature intended what it has said; even if
there is some defect in the phraseology used by it in framing the statute, it is not open to the
Court to add and amend, or by construction, make up for the deficiencies, which has been left in
the Act.51

(¶ 3.) The Court can only iron out the creases but while doing so, it must not alter the fabric, of
which an Act is woven. The Court, while interpreting statutory provisions, cannot add words to a
47
Directorate of Enforcement v. Deepak Mahajan, SCC (Cri) 785 (1994).
48
P.S. Sathappan v. Andhra Bank Ltd., 11 SCC 672 (2004).
49
Mohd. Ali Khan v. CWT, AIR 1997 SC 1165.
50
Delhi Airtech v. State of Uttar Pradesh, 4 SCC (Civ) 673 (2011).
51
Hardeep Singh v. State of Punjab, 3 SCC 92 (2014).

22
 MEMORANDUM ON BEHALF OF RESPONDENT

Statute, or read words into it which are not part of it, especially when a literal reading of the
same produces an intelligible result. 52

(¶ 4.) A statute must be interpreted having regard to the purport and object of the Act. The
doctrine of purposive construction must be resorted to. It would not be permissible for the Court
to construe the provisions in such a manner which would destroy the very purpose for which the
same was enacted. The principles in regard to the approach of the Court in interpreting the
provisions of a statute with the change in the societal condition must also be borne in mind. The
rules of purposive construction have to be resorted to which would require the construction of
the Act in such a manner so as to see that the object of the Act is fulfilled. 53

(¶ 5.) There is nothing in Section 3 of the MTP Act which provides for the termination of a
pregnancy, the length of which exceeds twenty weeks. If the Legislature had intended so, it
would have been so enacted. The function of the Court is only to expound the law and not to
legislate. It cannot read into the law what has not been either enacted, or intended. Section 3 of
the MTP Act is a clear-cut provision of law which specifically provides for the termination of a
pregnancy, clearly specifying the length of such pregnancy, not exceeding twenty weeks. 54

2.2.1 THAT APPELLANT CAN’T RELY ON THE MTP AMENDMENT BILL, 2014.

So far as reliance being placed upon Section 3 of draft of Medical Termination of Pregnancy
(Amendment) Bill, 2014, whereby upper limit of getting pregnancy terminated up to 24 weeks
has been proposed, is concerned, the said Bill is only a draft Bill and has not taken the shape of
law, hence, this is also of no help to the victim.

52
Nalinakhya Bysack v. Shyam Sunder Haldar, AIR SC 148 (1953); Sri. Ram Narain Medhi v. State of Bombay,
AIR 1959 SC 459; M. Pentiah v. Muddala Veeramallappa, AIR SC 1107 (1961); The Balasinor Nagrik Co-operative
Bank Ltd. v. Babubhai Shankerlal Pandya, AIR SC 849 (1987); and Dadi Jagannadham v. Jammulu Ramulu, 7 SCC
71 (2001).
53
Shaikh Ayesha Khatoon v. Union Of India, 1 RCR(Civil)820 (2018).
54
Chandrakant Jayantilal Suthar v. State of Gujarat, 8 SCC 721 (2015).

23
 MEMORANDUM ON BEHALF OF RESPONDENT

3. THAT TERMINATION OF PREGNANCY AFTER 24 WEEKS OF A HIV VICTIM IS LEGALLY NOT

POSSIBLE.

“Take not away from any living thing the life that is sweet unto all even if it be to save thine
own.”55
Any person who, with intent to destroy the life of a child capable of being born alive, by any
willful act causes a child to die before it has an existence independent of its mother is guilty of
the offence of child destruction, if it is proved that the act was not done in good faith for the
purpose only of preserving the life of the mother. 56

3.1 THAT FOETUS CAN’T LIFE BE TERMINATED ON THE GROUND OF HIV.

(¶ 1.) The present case does not suggest that the foetus has already been infected with HIV+ve. It
only predicts that any definite opinion can be given only when the child attains the age of 18
months. So far as contention of victim that Section 10 of Human Immunodeficiency Virus and
AIDS (Prevention and Control) Act, 2017 prescribes that every person who is HIV +ve should
take all reasonable precautions to prevent the transmission of HIV to other persons, is concerned,
that is basically confined to such persons who are HIV +ve, for taking precaution before any
sexual contact with any person or with whom the needles are shared with. 57 Hence, this provision
is also of no help to the victim.

(¶ 2.) The Appellant cannot take plea of the judgment of the Delhi High Court, in case of X v.
Govt. of NCT of Delhi and Anr58. 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, as she was recovered from a brothel. Hence, in
the said case there was no embargo of upper limit of termination of pregnancy and such, this case
is also of no help to the victim.

55
V. Krishnan v. G. Rajan alias Madipu Rajan and The Inspector of Police, 1 Mad LW (Cri) 16 (1994).
56
Volume 11, Halsbury's Laws of England,' Fourth Edition, paragraph 1176 at page 628 (2006).
57
Z v. Union of India, SCC OnLine SC 943 (2017).
58
X v. Govt. of NCT of Delhi and Anr, 1 RCR (Civil) 510 (2014).

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 MEMORANDUM ON BEHALF OF RESPONDENT

3.2 THAT THE SPECIAL CASES HAVE NO IMPACT ON PRESENT CASE.

(¶ 1.) Cases where permission to terminate pregnancy was granted like that of Meera Santosh
Pal v.Union of India,59 wherein 24 weeks pregnancy was permitted to be terminated medically
since the foetus was diagnosed with Anencephaly, a defect, that leaves foetal skull bones
unformed. Such termination of pregnancy was permitted since such foetus was unable to survive
extra-uterine life, but in the present case the foetus has been found to be normal, hence this case
is also of no help to the victim. The petitioner may rely upon another judgments like the case of
X v. Union of India and Others,60 where 24 weeks pregnancy was permitted to be terminated. In
the said case there was no evidence of skull vault above orbit and the foetus was not compatible
with extra-uterine life and accordingly the medical opinion suggested for termination of
pregnancy, hence, this is also not applicable to the case of the victim.

(¶ 2,) The petitioner also may rely upon a judgment reported in case61, where 22 weeks
pregnancy was permitted to be terminated since the foetus was suffering from bilateral renal
agenesis and anhydramnios, meaning thereby that the foetus had no kidneys and hence the foetus
was found to be incompatible with extra-uterine life and accordingly, the medical opinion
suggested for such termination. On similar lines case of Z. v. State of Bihar62 is not applicable
here as the victim there being a major 63 was able to take decision for her and her body capability
was in any way greater than in present case also she was backed by a government established
shelter home securing her future.

(¶ 3.) The Apex Court in the case of Sheetal Shankar Salvi & Another v. Union of India,64 has
declined the termination of 27 weeks of pregnancy, in spite of serious disease found in the
foetus, since there was no likelihood that the baby may be born alive and may survive for
variable period of time. In the said case, apart from the medical ground, the victim was anxious
about the outcome of pregnancy but that ground was not considered to be a permissible ground
for getting the pregnancy terminated. Hence, this case is also of no help.

59
Meera Santosh Pal v. Union of India, AIR SC 461 (2017).
60
X v. Union of India and Others, AIR SC 3525 (2016).
61
AIR SC 1055 (2017).
62
Z v. State of Bihar, AIR SC 3908 (2017).
63
Indian Majority Act, 1930.
64
Sheetal Shankar Salvi & Another v. Union of India, 5 SCALE 428 (2017).

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 MEMORANDUM ON BEHALF OF RESPONDENT

(¶ 4.) Similarly in cases like that of Harjit Kaur,65 Sabra,66 Ashaben,67 Chandrakant Jayantilal,
Madhuben68 where pregnancy was above 24 weeks, Sujibai, V. Krishnan,69 Shewata,70 Subbi71
where pregnancy was of 25 weeks, Bhoi Kunjalben72, Suchita Srivastava73 where pregnancy
was above 27 weeks and in case of Surjibhai74 where pregnancy was of 32 weeks, the court
rejected the termination of pregnancy as there lacked sustainable grounds.

3.3 THAT BEST INTEREST OF VICTIM DOESN’T OVERSHADOW COMPELLING STATE INTEREST.

(¶ 1.) The Apex Court has dealt with the situation 75 where the victim being mentally retarded
wanted to carry the pregnancy to its full term. The report of the Medical Board constituted by the
order of Punjab & Haryana High Court, suggested for not getting the pregnancy terminated, but
in the best interest of the victim, the Punjab High Court directed for termination of pregnancy,
which was challenged before the Supreme Court where it has been held that Indian Law allows
for termination of pregnancy only if the specified conditions are met, in following words:

"A plain reading of above quoted provision makes it clear that the Indian Law allows for
abortion only if the specified conditions are met". The Court further held that the Woman's right
to make reproductive choices is also a dimension of 'personal liberty' as enshrined under Article
21 of the Constitution of India, hence the reproductive choices can be exercised to procreate as
well as to abstain from procreating. However, in a case of pregnant women there is also a
'compelling State interest' in protecting the life of the prospective child.

(¶ 2.) In the present case at hand, the foetus is not suffering from any disease and hence the
Court at this juncture should set aside its emotions and predilections, to decide the issue in the

65
Harjit Kaur v. State of Punjab, AIR 1999 SC 2571.
66
Sabra v. State of Haryana and Ors., 1 RCR(Criminal)575 (2018).
67
Ashaben v. State of Gujarat, 4 Crimes 1 (Guj.) (2015)
68
Chandrakant Jayantilal Suthar v. State of Gujarat, 4 RCR (Cr.) 876 (2016).
69
V. Krishnan v. G. Rajan alias Madipu Rajan and The Inspector of Police, 1 LW (Crl) 16 (1994).
70
Shewata v. State of Haryana and Ors., 183 PLR 257 (2016).
71
Subbi v. State of Haryana and Ors., 188PLR438 (2017).
72
Bhoi Kunjalben Narsinhbhai v. State of Gujarat and Ors., SCrA (QUASHING) NO. 1211 of 2017.
73
Suchita Srivastava and Anr. v. Chandigarh Administration, AIR SC 235 (2010).
74
Surjibhai Badaji Kalasva v. State of Gujarat, SCrA (DIRECTION) NO. 585 of 2018.
75
Srivastava and Anr. v. Chandigarh Administration, 9 SCC 1 (2009).

26
 MEMORANDUM ON BEHALF OF RESPONDENT

best of interest of the victim as well as the prospective life (foetus). Paragraph No. 21 and 22 of
Suchita Srivastava76 judgment, reads as follows:-

"21. When the MTP Act was first enacted in 1971 it was largely modeled on the
Abortion Act on 1967 which had been passed in the United Kingdom. The legislative
intent was to provide a qualified 'right to abortion' and the termination of pregnancy
has never been recognized as a normal recourse for expecting mothers.

22. There is no doubt that a woman's right to make reproductive choices is also a
dimension of 'personal liberty' as understood under Article 21 of the Constitution of
India. It is important to recognize that reproductive choices can be exercised to
procreate as well as to abstain from procreating. The crucial consideration is that a
woman's right to privacy, dignity and bodily integrity should be respected. This means
that there should be no restriction whatsoever on the exercise of reproductive choices
such as a woman's right to refuse participation in sexual activity or alternatively the
insistence on use of contraceptive methods. Furthermore, women are also free to choose
birthcontrol methods such as undergoing sterilization procedures. Taken to their logical
conclusion, reproductive rights include a woman's entitlement to carry a pregnancy to
its full term, to give birth and to subsequently raise children. However, in the case of
pregnant women there is also a 'compelling State interest' in protecting the life of the
prospective child. Therefore, the termination of a pregnancy is only permitted when the
conditions specified in the applicable statute have been fulfilled. Hence, the provisions
of the MTP Act, 1971 can also be viewed as reasonable restrictions that have been
placed on the exercise of reproductive choices."

(¶ 3.) Though, the High Court in Suchita Srivastava77 case has invoked the doctrine of Parens
Patriae78 while exercising its writ jurisdiction to go beyond the literal interpretation of the statute
and adopted a purposive approach and by arriving at a conclusion that the termination of
pregnancy would serve the best interests of the victim. The Apex Court while dealing with the
doctrine of Parens Patriae has recorded that the said doctrine has been evolved in common law

76
Id.,
77
Id.,
78
Shankar Kisanrao Khade v. State of Maharashtra, 3 BomCR (Cri) 72 (2013).

27
 MEMORANDUM ON BEHALF OF RESPONDENT

and is applied in situations where the state must make decisions in order to protect the interests
of those persons who are unable to take care of themselves. 79

(¶ 4.) For exercising such jurisdiction, two distinct standards are commonly used. These two
standards are the 'best interests' test and the 'substituted judgment' test. 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 such a situation, the court must undertake a careful inquiry of the medical
opinion on the feasibility of the pregnancy.

(¶ 5.) In the present case also, in the 'best interest' of the victim and the foetus, this Court finds
no reason to direct the pregnancy to be terminated in its 23-24 week, particularly such
termination of pregnancy, as per the Medical Board report would be hazardous to the life of the
victim.

3.4 THAT FOETUS POSSESS LIFE IN ISLAM COMMUNITY.

The Holy Quran lays down a fundamental principle that effecting change in the scheme of God
(Khalq-Allah) is a fiendish act. 80 Changing 'God's scheme and creation signifies misuse of a
thing, its utilization for a purpose other than the one for which it was intended, or to use it in a
manner that its real purpose is defeated. At pages 99 and 100, it is said:-

"Medical opinion is almost unanimous in asserting that abortion is highly dangerous for the
general health of a woman and her nervous system. We will quote here Dr. Fredrick J. Taussig
who has so succinctly summed up the expert medical opinion on the subject: "When pregnancy
is prematurely interrupted by what we term abortion, the human race suffers loss and damage in
3 ways:

• First an infinite number of potential human beings are destroyed before their birth.
• Secondly, abortion carries with it a considerable death rate among expectant mothers.
• And finally, abortion leaves in its wake a high incidence of pathologic conditions some of
which interfere with the further possibility of reproduction." Dr. Yusuf al-Quaradawi”

79
Charan Lal Sahu v. Union of India, AIR SC 1480 (1990).
80
(Al-Qur-an, 4: 119.).

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 MEMORANDUM ON BEHALF OF RESPONDENT

"While Islam permits preventing pregnancy for valid reasons, it does not allow doing violence to
the pregnancy once it occurs". 81 According to him, "Muslim jurists agree unanimously that after
the foetus is completely formed and has been given a soul, aborting it is haram."82. A deliberate
abortion with no justifiable grounds is regarded as a murderous crime. Only when the
continuation of pregnancy constitutes a real threat to the life of the expectant mother, the
abortion is permitted. So, instead of losing two lives, we should have the full and already grown-
up life of the mother.

4. THAT EXEMPTION SHOULD NOT BE ALLOWED EVEN AFTER THE PASSAGE OF MANDATORY
PERIOD BECAUSE OF TIME TAKEN IN FOLLOWING LEGAL PROCEDURES.

4.1 THAT TIME TAKEN WAS IN BEST INTEREST OF VICTIM.

In the case of Suchita Shrivastava 83 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 condition.
• 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.

Doctrine of Parens Patriae, 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:

It has to be borne in the mind that the victim has been pregnant twice, out of which once aborted,
thus the termination of pregnancy will be grave to her. Also, the victim hails from the Islamic
community; therefore, the Islamic laws on termination must be appreciated. As expounded in
Quran it prohibits termination of pregnancy as it is a fiendish act. Besides, as submitted in the
medical report that the termination of the pregnancy, at such a late stage will be hazardous to her.
Thus, in the light of the present circumstances serving the interest of justice and in the interest
the foetus and the victim, it is not deemed suitable to allow her for the termination of pregnancy.
81
page 201 of "HALAL AND HARAM".
82
Id. at 79.
83
Suchita Srivastava v. Chandigarh Administration, 9 SCC 1 (2009).

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 MEMORANDUM ON BEHALF OF RESPONDENT

In the case of Vemareddy Kumarswamy Reddy v. State of A.P.84It was contended that it was not
the part of Court to add or amend the law as it stands, and as such court cannot go against the
plain literal meaning of statute. If the court gives exemption to the victim, the court would go
beyond its “Laksham Rekha”. In the present case the victim is asking for the termination of the
pregnancy which has passed the mandatory period in the statute i.e MTP Act. It has been
observed from various judgments that the court constitutes a medical board to determine the
situation of the plaintiff. The sole reason for doing this is that the court had to take into
consideration the situation of each and every victim. Therefore it can be said that the court was
righteous in its decision and there was no unreasonable impediment from the side of the court.

4.2 THAT THE DELAY CAUSED IN CONSTITUTING THE MEDICAL BOARD WAS REASONABLE
DELAY.
In the report of the Medical Board it was submitted that the termination of her pregnancy would
require major surgical procedure along with the subsequent consequences such as bleeding,
sepsis and anesthesia hazards.85

Major surgery and its consequences:

It is most respectfully and humbly submitted before this Hon’ble court a major surgery must not
be treated as a normal surgery. 86 A major surgery in itself suggests that it is grave and
endangering the life of the patient. Major surgery requires hospitalization and specialized care, is
usually prolonged, has a higher degree of risk, involves major body organs or life threatening
situations, and has a greater risk of postoperative complications. Examples of major surgeries are
Open Cholecystectomy, Nephrectomy, Hysterectctomy etc. 87 These surgeries are grave in nature
and can be detrimental to the health of the victim.

In addition to this the report also mentioned that there will be subsequent consequences to the
victim, namely, bleeding, sepsis and anesthesia hazards. There are few notable consequences of
these mentioned below 88

84
Vemareddy Kumarswamy Reddy v. State of A.P, 2 SCC 670 (2006).
85
Factsheet para 11.
86
Kusum Sharma and Ors. v. Batra Hospital and Medical Research Centre and Ors., AIR SC 1050 (2010).
87
C.K. Pandian and Others v. S.R. Trust and Others, 1 C.P.C. 501 (2014).
88
Stanfordchildren, Bleeding in Pregnancy/Placenta Previa/Placental Abruption, (Apr. 29, 2018, 4:30am),
www.stanfordchildrens.org.

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 MEMORANDUM ON BEHALF OF RESPONDENT

• Bleeding during pregnancy is common; however excessive bleeding can cause some
severe complications like placental abruption, placenta praevia, vasa praevia.
• Sepsis is a potentially life-threatening complication of an infection, having a case of
severe sepsis increases risk of future infections.
• Though anesthesia is considered to be one of the safest specter of medical anatomy. But,
it can have many hazards
• It has to be kept in mind that the minor is suffering from HIV AIDS. The presence of
HIV makes a person more susceptible to infection. Thus HIV and Sepsis together can be
life threatening for an individual.

It has also to be taken into consideration that the victim is a minor and has already been
pregnant, twice, out of which the second time, she was forcefully aborted. Besides, the medical
procedure in itself will cause many more complication to the victim. Therefore, she is susceptible
to the medical complications and also vulnerable if a major surgery is operated on her.
Therefore, termination of the pregnancy in all ways will be detrimental to the health of the victim
and thus it should not be granted.

5. THAT THE VICTIM IS NOT ENTITLED TO GET COMPENSATION UNDER NEGLIGENCE FOR
THE DELAY CAUSED BY THE AUTHORITIES IN TERMINATING THE UNWANTED PREGNANCY.

5.1 THAT NEGLIGENCE WAS NOT COMMITTED BY AUTHORITIES.

The Key elements for negligence 89 to claim compensation are:90

• Duty: The authorities do not hold duty to just perform tasks directed by the patient, but to
work with full knowledge keeping in mind all harmful side effects the act may result
into.91 The primary duty of the authorities here was to save the life of a frail minor who is
HIV +ve than to save the foetus by putting into stakes the life of the girl. The Authorities
performed their duty completely giving due respect to laws under MTP Act, 1971.

• Breach: There was no breach on the part of Authorities as the condition of victim was
such that if she would have terminated her pregnancy she would had required major

89
Jacob Mathew v. State of Punjab, 6 SCC 1 (2005).
90
State of Rajasthan v. Vidhyavati, AIR SC 933 (1962).
91
Medicalcouncil, Guide To Professional Conduct And Ethics For Registered Medical Practitioners, Apr. 28, 2018,
2:30am), http://www.medicalcouncil.ie/.

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 MEMORANDUM ON BEHALF OF RESPONDENT

surgical procedure along with bleeding, sepsis, and anesthesia hazards. Sepsis is a deadly
infection which can be risky in present case as victim is HIV+ve so her immune system is
already so weak that she can’t afford a deadly infection like sepsis. 92

• Damage: No damage is caused to the victim, but it would have been caused if process
would have moved a little far, no damage is greater than damage to one owns life.93
Although the girl is now unable to terminate her pregnancy which she foresee as a
damage94 but the Authorities taking reasonable time, 95 with complete analysis and tests
came to the conclusion for what is in best interest of the victim. 96

5.2 THAT AUTHORITIES FOLLOWED THE RULES UNDER THE STATUTE WHICH THEY ARE
OBLIGED TO.
Section 3 of MTP Act of 1971 states that under what provision a registered medical practitioner
can terminate pregnancy, clause (2) subject to the provisions of sub-section (4) lay down that that
pregnancy can be terminated (a) where length of pregnancy does not exceed 12 weeks or (b)
where length does not exceed 20 weeks with condition of presence of more than two registered
medical practitioner making opinion in good faith i.e. (i) continuance of pregnancy would risk
the life of woman or cause grave physical or mental health or (ii) existence of a substantial risk
to child born as that of physical or mental abnormalities, where anguish affect mental health due
to case like rape.

In the present case when the pregnancy was of 17 weeks, when tested under 20 weeks bar, no
grave injury bodily or mentally was detected in the report when continuation of pregnancy,
although she was a rape victim but her conduct does not conceived a grave mental health risk
instead a risk to her life was possessed if she decided to terminate her pregnancy. Also the foetus
didn’t show any positive signs i.e. free from any substantial abnormality or disability. Hence
Authorities can’t be held liable to compensate for adhering to law and performing their duty with
utmost sincerity.

92
Sepsis Alliance, Sepsis and HIV/AIDS, (Apr. 28, 2018, 1:25am), https://www.sepsis.org/sepsis-and/hiv-aids/.
93
M.C. Mehta v. Union of India , 6 SCC 9 (1999).
94
Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum, 9 SCC 552 (1997).
95
State of Punjab v. Gurdilal Singh, AIR 1980 SC 319.
96
Shankar Kisanrao Khade v. State of Maharashtra, Cri LJ 2595 (2013).

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5.3 THAT THE MEDICAL AUTHORITIES WERE BOUND BY THE HIPPOCRATIC OATH.
It should be duly noted that the medical authorities were bound by the Hippocratic oath (Corpus
Hippocraticum). It means that the responsibility that emerge from the doctor patient relationship
that forms the cornerstone of the legal implication emerging from medical practice. When a
doctor agrees to attend the patient, there is an unwritten contract between the two. the patient
entrusts himself to the doctor and the doctor agrees to do his best at all times for the patient.
Here, in the present case, the doctor did his best by not going with the termination of pregnancy.

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PRAYER

Wherefore in the light of facts stated, issues raised, arguments advanced and authorities cited,
the Counsel on behalf of the Respondent 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
not Maintainable.

II. That the Medical Termination of Pregnancy of the victim shall not be permitted beyond the
statutory period of 20 weeks.

III. That the Medical Termination of Pregnancy of the victim beyond 24 weeks shall not be
permitted on grounds of being HIV Positive.

IV. That the exemption shall not be allowed for the medical termination of pregnancy as there
was no delay in the legal proceedings.

V. That the victim is not entitled to compensation owing to fact that there was no element of
negligence in the carrying out of their duties on part of the authorities.

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

ALL OF WHICH IS RESPECTFULLY SUBMITTED

COUNSEL ON BEHALF OF THE RESPONDENT

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