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NORTH EASTERN HILL UNIVERSITY MOOT COURT PROBLEM-1,
10th SEMESTER, 2023
BEFORE THE HON’BLE SUPREME COURT
Civil Appellate Jurisdiction Civil Appeal No. 15/
Meena...........Appellant
v.
Ajay..........Respondent
MEMORIAL ON BEHALF OF THE RESPONDENT
From the side of the Respondent
Table of Contents
- Table of abbreviation.............................................................................................................................
- Index of authorities................................................................................................................................
- STATEMENT OF JURISDICTION......................................................................................................
- STATEMENT OF FACTS....................................................................................................................
- STATEMENT OF ISSUES...................................................................................................................
- SUMMARY OF ARGUMENTS...........................................................................................................
- ADVANCE ARGUMENT....................................................................................................................
- Whether the classification made under Section 3 of the Medical Termination of Pregnancy Act,
- (MTP Act) unreasonable and violates Article 14?.................................................................................
- wherein she is accused of infidelity violates Article 21 of the Constitution?....................................... Whether denial of DNA test to establish the parentage of the fetus to uphold the dignity of a woman
- PRAYER.............................................................................................................................................
SC
SCC
AIR
NO.
Vol. Const v. Ltd SCR Ors Retd i.e., Art COI U/S MTP IEA Supreme Court Supreme Court Cases ALL India Reporter Number Volume Constitution Versus Limited Supreme Court Reports Others Retired That is Article Constitution of India Under Section THE MEDICAL TERMINATION OF PREGNANCY Indian Evidence Act From the side of the Respondent
Index of authorities Cases Cases Alakh Alok Srivastava vs. Union of India (2018) 7 SCC 69……………………………………. Ashok kumar v. Raj Gupta 2021……………………………………………………………….. A v. Union of India and others ( 2018) 14 SCC 75…… ………………………………………............ Bhabani Prasad Jena vs. Convenor Secretary, Orissa State Commission for Women (2010) 8 SCC 633, (2010) 9 SCR 457………………………………………………………………………….. Dipanwita Roy vs. Ronobroto Roy (2015) 1 SCC 365, AIR 2015 SC 418……………………… Sharda vs Dharmpal AIR 2003 SC 3450, (2003) 4 SCC 493…………………………………… Murugan Nayakar v. Union of India and Ors., (2018) 16 SCC 163…………………………….. Ms. X v. State of Kerala and others ( 2016 ) 5 KHC 673 : ( 2016 ) 4 KLT 745 ………………………… Ram Krishna Dalmia v. Justice S.R. Tendolkar, AIR 1958 SC 538........................................... Sharda vs. Dharmpal AIR 2003 SC 3450, (2003) 4 SCC 493.................................................... State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75..................................................... Books M P Jain, Constitution of India 8th Edition, 2018 Dr. Ishita Chatterjee, Health Law, First Edition
STATEMENT OF FACTS
- Meena and Ajay were in a live-in relationship for over a year and a half when Meena was sent to Bangalore for work. While working on a project with a senior software engineer, Kunal, Meena had to work long hours with him.
- After returning to Delhi, Ajay became suspicious of Meena and questioned her about her relationship with Kunal, which led to a breakdown in trust between them.
- Meena found out she was pregnant, and after facing opposition from Ajay's family not able to marry him and being denied the right to terminate her pregnancy by the court, she decided to terminate the pregnancy at 23 weeks, as she felt she had no other options left.
- Meena had also requested a paternity test to prove the identity of the father of the child, which was denied by the court. The High Court held that DNA tests can be ordered only in deserving cases and that forcing someone infringes their right to privacy.
- The court held that Meena could not simultaneously seek permission to terminate her pregnancy and for the DNA test for paternity. The court also held that Meena did not have the right to terminate her pregnancy as she was an unmarried woman whose pregnancy arose from a consensual relationship, which was not covered under the categories of women who could terminate their pregnancy beyond 20 weeks and up to 24 weeks. The court emphasized that giving the option to terminate the pregnancy must be the exception and not the rule. From the side of the Respondent
STATEMENT OF ISSUES
Issue 1 Whether the classification made under Section 3 of the Medical Termination of Pregnancy Act, 1971 (MTP Act) unreasonable and violates Article 14? Issue 2 Whether denial of DNA test to establish the parentage of the fetus to uphold the dignity of a woman wherein she is accused of infidelity violates Article 21 of the Constitution? From the side of the Respondent
ADVANCE ARGUMENT
Whether the classification made under Section 3 of the Medical Termination of Pregnancy Act, 1971 (MTP Act) unreasonable and violates Article 14? Argument Advanced Whether the classification made under Section 3 of the Medical Termination of Pregnancy Act, 1971 (MTP Act) unreasonable and violates Article 14? 1.1 The counsel for Respondent humbly submits before this Hon’ble Supreme Court that Applicant’s suit is not maintainable before this Hon’ble court for the following reasons as follows:
- The MTP Act, as amended in 2021 no longer categorises women as married and unmarried women and does not violate Article 14.
- The further classification made under the Act based on the length of pregnancy is just and reasonable. 1.2 Section 3 of the MTP Act provides that any woman whose pregnancy does not exceed twenty weeks can have their pregnancy terminated on the opinion of a registered medical practitioner, provided the conditions under the said section are fulfilled. The section further provides that where the length of the pregnancy exceeds twenty weeks but does not exceed twenty-four weeks only certain categories of women as prescribed under the rules of the Act can have their pregnancy terminated on the opinion of not less than two registered medical practitioners. 1.3 Article 14 guarantees to all the citizens, equality before the law and equal protection of the law. 1.4 It is contended that the classification made under section 3 of the MTP Act, based on the length of pregnancy, which imposes conditions and restrictions and allows only certain categories of women whose length of pregnancy exceeds 20 weeks but does not exceed 24 weeks to have the pregnancy terminated, is in no way discriminatory or arbitrary, and in violation of Article 14 of the Indian Constitution. 1.5 It is submitted that the classification made under the Act is based on intelligible differentia and hence is not in violation of article 14 of the Constitution. The
classification made under the impugned section strikes a balance between the rights and interests of the woman and the rights and interests of the potential child. 1.6 It is stated in Ram Krishna Dalmia v. Justice S.R. Tendolkar^1 , by the SC that while Article 14 prohibits class legislation, it does not prohibit reasonable classification for legislative reasons. 1.7 It is held in State of West Bengal v. Anwar Ali Sarkar^2 , by the SC held that reasonable classification is not in violation of article 14 as long as it satisfies the two fold test of intelligible differentia and rational nexus. 1.8 It is submitted that the objective of the pertinent MTP Act is to provide a legal framework for safe and legal abortion services in India. The Act recognizes that the health risk associated with termination of pregnancy increases as the length of pregnancy increases and the life of the unborn child becomes more important as the pregnancy progresses. This recognition is evident by the classification which has been made under section 3 of the Act which permits termination of the pregnancy beyond 20 weeks only in certain circumstances and only for certain categories of women. 1.9 It is contended that the classification under section 3 of the MTP Act, based on the duration of pregnancy, has a direct nexus with the object of the Act, which is to provide women with safe and legal abortion services while also taking into consideration the health of the mother and the life of the unborn child. The classification recognizes the fact that as the pregnancy progresses, the health risks associated with the termination of pregnancy increase, and the life of the unborn child becomes more important, and as such, allows for termination of pregnancy beyond 20 weeks only in certain circumstances and only for certain categories of women, where the health or life of the mother is at risk, or where the foetus has severe abnormalities. This ensures that the right to safe and legal abortion is balanced with the interests of the mother and the unborn child. 1.10 It is submitted that the classification made under section 3 of the MTP Act fulfils the conditions laid down In the case of Re Special Courts Bill, 1978^3 for permissible classification. 1.11 In Alakh Alok Srivastava vs. Union of India^4 , where the petitioner was a 10-year- old pregnant rape victim with a 32-week pregnancy as well the Court did not allow (^1) AIR 1958 SC 538 (^2) AIR 1952 SC 75. (^3) [ AIR 1979 SC 478] (^4) (2018) 7 SCC 69.
1.19 From the above extract it is clear that the court recognises the right of a woman to control her own body and to make decisions regarding her own reproductive health. 1.20 It is further contended that abortion under the MTP Act is an exception to the criminal offence iterated under section 312 of the Indian Penal Code (IPC), and not a rule. 1.21 It is submitted that MTP Act doesn’t make abortion legal but sets clear situations in which it is to be permitted. 1.22 It has been articulated by the Courts in the case of Suchita Srivastava v. Chandigarh Administration^8 , that the legislative intent of the MTP Act was to provide a qualified `right to abortion' and the termination of pregnancy has never been recognised as a normal recourse for expecting mothers. In this case, the Supreme Court of India held that the MTP Act is an enabling provision which creates an exception to the general rule that abortion is illegal. 1.23 It is submitted that the classification under section 3 of the MTP Act serves the purpose of the Act in legalizing abortion only in certain situations and circumstances and also serves the interest of the state in restricting foeticide. 1.24 It is clear from the above extract that the that the classification under section 3B of the MTP Rules 2021 for the purpose of section 3(b) of the MTP Act as to the categories of women, does not violate article 14 of the constitution. (^8) (2009) 9 SCC 1
Whether denial of DNA test to establish the parentage of the fetus to uphold the dignity of a woman wherein she is accused of infidelity violates Article 21 of the Constitution?
- The counsel for the respondent humbly summits before this Hon’ble court that the denial of the DNA test to establish the parentage of the fetus to uphold the dignity of a woman wherein she is accused of infidelity violates does not violate Art. 21 of the COI. 2.1 Article 21 of the Constitution of India guarantees the right to life and personal liberty to every person. 2.2 The right to privacy is also part of this fundamental right. However this right is not absolute and may be subjected to reasonable restrictions in the interest of public order, morality, and the protection of the rights of others. 2.3 It is contended that each of the parties to the present case have certain specific legal rights that may need to be taken into account when deciding whether or not to order a paternity test. 2.4 It is contended that the court before ordering a DNA test it has to consider and balance rights of all the parties involved and not just of the appellant. 2.5 In Bhabani Prasad Jena v Convenor Secretary, Orissa State Commission for women^9 , the court held that after taking due consideration in “ balancing the interest” of the parties involved then only, the claim by the petitioner for such test would be entitled. 2.6 It is submitted that the intention of the appellant in undertaking DNA test is to deny the allegation of infidelity and to uphold her dignity at the cost of violating the rights of the potential child. 2.7 It is humbly submitted by the counsel of the respondent that the child cannot be used as a pawn to prove allegation of infidelity committed by the woman or man. Therefore DNA test cannot be used as a shortcut to establish infidelity of man or woman. 2.8 It is contended that the child’s genetic information is part of his fundamental right to privacy and as such, for the sake of the benefit of the man or woman, the privacy of the child or unborn child should not be sacrifice, the bench of Justices V Chitambaresh and KP Jyothindranath pointed out in the case Dipanwita Roy v. Ronobroto Roy^10 , that the plight of the child could not be ignored. The court must consider the fact that a child would suffer irreparable ignominy and social stigma if the child proved to be illegitimate. (^9) (2010) 8 SCC 633, (2010) 9 SCR 457 (^10) AIR 2015 SC 418
PRAYER
In the light of the arguments advanced and authorities cited, the Respondent humbly submits that the Hon’ble Court be pleased to adjudge and declare that:
- That the classification made under the under section 3 of the Medical Termination of Pregnancy (Amendment) Act, 2021, does not violate Article 14 of the Constitution of India.
- That denial of DNA test to establish the parentage of the fetus to uphold the dignity of a woman wherein she is accused of infidelity is just and reasonable and does not violate Article 21 of the Constitution. The Hon’ble court shall pass an order or direction that this Hon’ble Court may deem fit and proper in light of the facts and circumstances of the present case.
