Memorial Respondent

PARTICICPANT CODE -FM24

NATIONAL UNIVERSITY OF ADVANCED LEGAL

STUDIES,FRESHERS’ MOOTCOURT COMPETITION
2019

BEFORE THE HON’BLE HIGH COURT OF KERALA

DR. MARGRET ALEXI

&
MS R REPRESENTED BY SMT.KANTHMATHI
Versus

UNION OF INDIA

And

LOVE AND CARE FOR CHILDREN, KERALA

Versus
UNION OF INDIA

And

DR. MARGRET ALEXI

Versus

STATE OF KERALA

MEMORIAL FOR RESPONDENT

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 Memorial Respondent

TABLE OF CONTENTS

1. INDEX OF AUTHORITIES

• BOOKS AND COMMENTARIES………………………………………………….3

• CASES CITED………………………………………………………………...….3, 4

• ACTS, RULES AND INSTRUCTIONS…………………………………………….4

• WEBSITES REFERRED…………………………………………………………….4

2. STATEMENT OF JURISDICTION …………………………………………...………5

3. STATEMENT OF FACTS …………………………………......................................6, 7

4. STATEMENT OF ISSUE……………………………………………...………………..8

5. TABLE OF ABBREVATIONS…………………………………………………………9

6. SUMMARY OF ARGUMENTS…………………………. ……………..…………….10

7. ARGUMENTS ADVANCED……………………..……………………...…………….11

8. PRAYER ……………………………………………………………….……………….23

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 Memorial Respondent

INDEX OF AUTHORITIES

 BOOKS AND COMMENTARIES

1. Basu, D., Lakshmanan, A., Manohar, V., Banerjee, B. and Khan, S. (2009). Shorter
constitution of India
2. V.V. Shukla’s Constitution of India, Mahendra Pal Singh, 12 Edn. p.215
3. Law and Medicine, Dr Lily Srivastava, 2nd Edition.
4. Penal law of India, Dr Sir Hari Singh Gour, 11TH Edition.
5. Princep’s Commentary on the code of criminal proceedings 19TH Edition...
6. Amar Jesani, and Aditi Iyer, "Women and Abortion", 27 Economic and Political Weekly
(1993)

 CASES CITED
1. Ashok Kumar Pandey v. State of W.B 2004 (3) SCC 349
2. Basu, D., Lakshmanan, A., Manohar, V., Banerjee, B. and Khan, S. (2009)
3. Court Manikuttan Vs M.N. Baby 2009 ACJ 1497
4. Dalip Kumar Deepa vs State Of Punjab And Another Crl. Misc. No. M-22716 of 2010
5. Dattaraj Nathuji Thaware vs. State of Maharashtra and Ors. Special Leave Petition (civil)
26269 of 2004
6. Dietric v. Northampton, 138 Mass 44, 52 Am. Resp. 242.
7. Doe v. Bolton 41 P.S.I.W 4233 (1973)
8. Justice K.S. Puttaswamy and Ors. Vs. Union of India (UOI) and Ors.
MANU/SC/1044/2017
9. Kaur Gurpreet vs State Of Punjab And Another Crl. Misc. No.M-3685 of 2012
10. Mahima Suri Mukherjee vs Ca
11. Maneka Gandhi v. Union of India [1978] A.I.R. S.C. 597
12. Nand Kishore Sharma and Ors. vs Union Of India (Uoi) And Anr [1950] S.C.R. 759
13. Neelam Choudhary vs Union Of India And Ors (20.6430.18 wp.doc)
14. Olga Tellis v. Bombay Municipal Copn., AIR1986 SC180
15. R.Rajagopala Alias R.R.Gopal and Another v.State of T.N and Others, Writ Petition (C)
No. 422 of 1994.

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 Memorial Respondent

16. Roe Vs Wade [1973] No. 70-18 (United States Supreme Court).
17. S.M. Datta vs. State of Gujarat,AIR 2001 SC 3253, ¶9
18. State of Haryana vs Bhajanlal, AIR 1992 SC 604
19. State of Karnataka v. M. Devendrappa and Anr (2002) 3 SCC 89
20. State of W.B. v. Mohd. Khalid AIR 1955 SC 785
21. Suchita Srivastava & Anr vs Chandigarh Administration [2009] CIVIL APPEAL NO.5845
OF 2009 (THE SUPREME COURT OF INDIA).
22. Suresh Kumar Koushal and Anr. V. Naz Foundation and Anr. Civil Appeal No. 10972 of
2013

 ACTS, RULES AND INSTRUCTIONS

1. Criminal Procedure, 1973 (Act No. 2 of 1974)
2. The Indian Evidence Act, 1872 (Act no. 1 of 1872)
3. The Medical Termination of Pregnancy Act, 1971. (Act No. 34 of 1971)
4. The Indian Penal Code. (45 of 1860)

 WEBSITES REFERRED
1. http://www.scconline.com
2. http://www.Pib.nic.in
3. https://www.manupatra.com
4. http://www.164.100.79.153/judis/

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 Memorial Respondent

STATEMENT OF JURISDICTION

The Respondents, hereby, submit that this Honourable Court has the jurisdiction in dealing
with the Writ Petition under Article 226 of the Constitution and in dealing with the Criminal
Petition under Section 482 of the Criminal Procedure Code, 1973.

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 Memorial Respondent

STATEMENT OF FACTS

1) Tranquil is an ashram run by a special religious community in the State of Kerala for
deprived groups of people. All members of the ashram strongly believe in the life of solitude.
They have to remain unmarried and refrain from sexual relationships. The inmates including
the destitute were to follow the practices of the religion of the ashram. In appreciation of
their charity work, the State respected the religious group.
2) The headship of the ashram was to be on a male member, determined through nomination.
Wixi is the present religious head of the ashram. Wixi was very fond of one of the young
Bhaginis, Ms. R. Wixi appointed Ms. R as his secretary with some ill intentions. Wixi
exploited Ms. R in all ways and took her everywhere he went. He used photographs for
blackmailing her. In some time, Ms. R became pregnant. He asked her to conduct all
required tests and undergo an abortion if she was pregnant. In the tests, Dr. Margret Alexi
diagnosed that the pregnancy had advanced by five weeks. Based on the strong conviction
of the patient, Dr. Alexi terminated her pregnancy using a simple procedure.
3) Following this, Wixi kept Ms. R away from his office for a few months. On her return, she
was again sexually exploited several times. As a result, she again became pregnant after a
year. This time, she managed to escape from the ashram. After a month, Ms. R sought
asylum in the Centre for Protection of Wandering Women (CPWW), an NGO instituted
for the care and protection of wandering women.
4) She revealed her previous experience to the counselor and Smt. Kanthimathi (Chairperson
of the NGO) and both of them advised her to undergo Medical Termination of Pregnancy
(MTP). After that Ms. R approached District Hospital for MTP. By this time, her pregnancy
had reached 19 weeks and the doctors were not ready to go for MTP. Ms. R and Smt.
Kanthimathi claimed termination of pregnancy as a matter of right. In turn, the doctors asked
them to approach a court of law or other appropriate forums.
5) The CPWW approached the District Collector with a complaint regarding the irresponsive
approach of the District Hospital authorities. The District Collector required the District
Hospital to constitute a medical board and to submit a report on the possibilities of MTP.
One of the doctors on the board, Dr. Pavan Kumar, himself an obstetrician of high
reputation, pointed out that even though the pregnancy had exceeded 24 weeks, it could be
terminated through the 'partial birth abortion' method, which was devoid of any risk.

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 Memorial Respondent

6) However, all other members of the board objected to MTP. Aggrieved by this, Smt.
Kanthimathi approached the High Court of Kerala. with two prayers: seeking permission
for the termination of pregnancy even if the period has exceeded the statutory bounds; and
to hold the Medical Termination of Pregnancy Act, 1971 and the impugned provisions of
IPC penalizing causing miscarriage as unconstitutional.
7) In the meanwhile, Wixi was arrested, and an FIR lodged. In the course of the investigation,
the police also proceeded against Dr. Margret Alexi for conducting abortion in the first
instance. The doctor was also booked for abetting the offence committed by Wixi. In turn,
Dr. Alexi, approached the Hon'ble High Court of Kerala to quash the FIR filed against her,
claiming it to be violative of her professional rights and frivolous in nature. She also joined
the petition filed by Smt. Kanthimathi, praying that the Indian law on abortion was outdated
and violative of the rights of women and hence unconstitutional.
8) Love and Care for Children, Kerala (LACCK), another NGO wanted to join the petition
pending in the High Court for defending the rights of an unborn child under Article 21 of
the Constitution of India. LAACK also required for the abolition of all provisions enabling
MTP in India so as to protect the right to life of an unborn child. According to LAACK, all
terminations of pregnancy, unless to prevent the death or physical injury of a pregnant
woman, were violative of the rights of an unborn child, and to that extent, Indian laws on
abortion were unconstitutional.
.

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 Memorial Respondent

STATEMENT OF ISSUES
1) Whether the petitions are maintainable in the High Court?

2) Whether the Medical Termination of Pregnancy Act 1971 is Constitutionally Valid?

3) Whether the IPC Sections on Miscarriage are Constitutionally Valid?

4) Whether the termination of pregnancy shall be allowed beyond the statutory bounds

Inscribed in Section 3, Sub-Section 2, Clause (a) & (b) of the MTP Act, 1971?

5) Whether the MTP Act violates the right to life of an unborn child?

6) Whether the FIR filed against Dr. Alexi can be quashed?

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 Memorial Respondent

TABLE OF ABBREVATIONS

AIR………………………………………………………………………All India Reporter

Art……………………………………………………………………………………….Article

Crpc……………………………………………………………….Criminal procedure code

Hon'ble……………………………………………………………………………Honourable

ILR…………………………………………………………………………Indian Law Review

IPC….......Indian Penal Code

MTP…………………………………………………………………………………….Medical
Termination of Pregnancy

PIL……………………………………………………………………Public Interest Litigation

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

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

Viz…………………………………………………………………………………….namely

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 Memorial Respondent

SUMMARY OF ARGUMENTS

i. Arguments on maintainability
The present writ petition files on behalf of MS.R by SMT. Kanthimathi and
Dr. Margaret Alexi is not maintainable. The petition filed to quash the FIR under
section 482 of Cr.P.C is not maintainable. The public interest litigation filed by love
and care for children, kerala is not maintainable
ii. Arguments on behalf of Union of india

No infringement of fundamental right or any other right has been taken place.
Petitioners have no locus standi. The termination of the pregnancy shall not be
allowed beyond the statutory bounds inscribed in the Section 3 Sub Section 2 clause
(a) & (b). An unborn child beyond such a limit can be termed as a “person” and
abortion of such nature would amount to killing.

iii. Arguments on behalf of State of Kerala

Margret Alexi did not act in accordance with law. Present petition do not satisfy any
of those criteria laid down by Supreme Court while deciding quashing of an FIR.

iv. Arguments on behalf of Union of India

Petitioner has no locus standi. Art. 21 of the Indian constitution do not absolutely
defend the right of an unborn child. Section 3 sub Section 2 subjected to clause (a)
and clause (b) sub clause (2) of The Medical Termination Of pregnancy Act, 1971 is
constitutionally valid.

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 Memorial Respondent

ARGUMENTS ADVANCED

ARGUMENTS ON MAINTAINABILTY OF WRIT PETITION, FIR AND PIL.

1. The writ petition is not maintainable.

1. Writ Jurisdiction of the High Courts’ flows from Article 226,1 which confers wide powers
enabling the Court to issue writs, directions, orders for the enforcement of fundamental or
legal rights.2 The exercise of writ jurisdiction by the High Court is discretionary in nature.3
It is submitted that the writ petition is not maintainable primarily on three grounds: first,
there is no locus standi for filing the writ petition; second, the petitioner has alternate
remedies available; third, no fundamental right has been violated.
1.1.THERE IS NO LOCUS STATNDI FOR FILING THE WRIT PETITION:
2. In order to file a writ petition in the High Court under article 2264, there must be a locus
standi5. In M.S Jayaraj vs Commissioner of exercise, Kerala and ors6 , the Kerala
high court did not consider the petition since the writ petitioner did not have locus
standi to challenge the order of the Commissioner. The court held the similar
judgement in Chandra Deo Singh vs Prokash Chandra Bose7. In the present case, the
petition is filed by Kanthimathi and Dr.Alexi who are not the aggrieved party and
therefore they do not have the locus standi in order to file the petition8. The
petitioner No.2 Margret Alexi has been booked U/S 107 of the IPC and also for
violating section 3 of MTP Act. So the petitioner’s actual intensions are questionable.

1.2.ALTERNATE REMEDIES ARE AVAILABLE:

3. One of the necessary conditions for the filing of writ petition under article 226 is that
there exist no alternate remedy9 available to the aggrieved party. Hon’ble Apex Court
in the case of Nivedita Sharma v. Cellular Operators Association of India10 has held that
Petitioner must exhaust its alternative remedy before approaching the High Court. Though

1
Article 226, Constitution of India.
2
H. M. SEERVAI, COMMENTARY CONSTITUTIONAL LAW OF INDIA, 4th ed., vol. 2, 2007 at p. 1586.
3
D.D. BASU, ON THE CONSTITUTION OF INDIA, C.K. Thakker & S.S. Subramani & T. S. Doabia & B. P. Banerjee eds.,
Vol. 6, 8th ed. 2012, p. 6614.
4
Article 226 of the indian constitution
5
Union of India Vs M/s. Padmini Polymers Ltd & ANR, W.P.(C) 412/2006 &413/2006
6
M.S Jayaraj vs Commissioner of exercise, Kerala and ors, 2000 (7) SCC 552
7
AIR 1963 SC 397
8
Madhavrao Jiwajirao Scindia and ors vs Sambhajirao Chandrojirao Angre and ors,(1988) 1 SCC 692
9 M/S Maa Durga Enterprises vs The Bihar Industrial Area Development Authority and Others, Civil Writ
Jurisdiction Case No.2265 of 2011
10
2011 14(SCC) 337 - G.S. Singhvi and S.J. Mukhopadhaya, JJ

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 Memorial Respondent

the section 3 subsection 2 takes away the right of a women to terminate her pregnancy after
20 weeks, there is a remedy available under section 5 of the MTP Act. Thus the petitioners
have alternate remedy available to them11.
1.3.THERE IS NO VIOLATION OF THE FUNDAMENTAL RIGHTS:
4. The petitioners cannot approach the high court since there is no violation of the
fundamental Rights. The sections 3 subsection 2 lays down reasonable restrictions to the
right of a woman under article 21 of the Constitution of India. It is clearly mentioned in the
Indian Constitution that the Fundamental Rights under Article 21 is subjected to reasonable
restrictions by a procedure established by law. Here the MTP Act which has been passed by
the Indian Legislature thereby making it a procedure established by law.
Therefore it humbly submitted before the Hon’ble Court that the petition filed by
Smt.Kanthimathi and Dr.Margret Alexi is not maintainable.
1.3 Dr. Margaret Alexi v. State of Kerala

1. High Court can interfere only in extreme cases where the charge of ex facie do not
constitute an offence. A debatable area is not amenable.12 Quashing of a complaint should
rather be an exception and a rarity and criminal proceedings in the normal course of events
ought not to be scuttled in the initial stage, unless the same amounts to an abuse of the
process of law or the perusal of FIR discloses no offence even broadly.13 The law is well
settled that the power of quashing criminal proceedings should be exercised stringently and
with circumspection. The inherent powers do not confer an arbitrary do not confer an
arbitrary jurisdiction on court to act according to its whim and caprice.

2. In the present case accused Dr. Margaret Alexi conducted abortion in lack of any ground
for conducting the same. Ms R’s pregnancy is though caused by sexual exploitation inflicted
on her by Wixi, accused Margaret Alexi was unaware of the same while conducting the
abortion. Also, Dr Margaret Alexi works in a hospital run by part of Tranquil Ashram which
raises the suspicion on her intention for conducting the abortion at the first place. The High
Court of Punjab and Haryana in Dalip Kumar Deepa vs State Of Punjab And Another14 also
in Kaur Gurpreet vs State Of Punjab And Another15 laid down a series of situations wherein
such power should be exercised to quash an FIR. The present case does not qualify any of

11
MEDICAL TERMINATION OF PREGNANCY ACT,1971
12
State of W.B. v. Mohd. Khalid AIR 1955 SC 785
13
S.M. Datta v. State of Gujarat, (2001) 7 SCC 659
14
Dalip Kumar Deepa vs State Of Punjab And Another Crl. Misc. No. M-22716 of 2010
15
Kaur Gurpreet vs State Of Punjab And Another Crl. Misc. No.M-3685 of 2012

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 Memorial Respondent

these criteria. Further the scope of Sec. 482 of CrPC was set out and reiterated in State of
Karnataka v. M.Devendrappa16 and State of Haryana v. Bhajan Lal17. The case does not
qualify any of these criteria. And for these reasons it is humbly submitted in the Hon’ble
court that the petition is not maintainable and the FIR cannot be quashed

1.4 Love and Care for Children, Kerala v. Union of India

1. A PIL filed by concealing material facts and involving no public interest is to be held not
maintainable and should be dismissed at all costs.18 The present petition challenging the
constitutionality of MTP Act is unreasonable. MTP “Act provide for the termination of
certain pregnancies by registered medical practitioners and for matters connected therewith or
incidental thereto,”19 The Medical Termination of Pregnancy (MTP) Act recognizes the
importance of providing safe, affordable, accessible and acceptable abortion services to
women who need to terminate an unwanted pregnancy and legalizes abortion on therapeutic,
eugenic, humanitarian or social grounds. It also aims to regulate and ensure access to safe
abortion care and also defines ‘when’, ‘where’ and ‘by whom’ abortion can be
performed.20 Locus standi in public interest litigation is a very important factor and the Court
should always inquire into the locus of a person before entertaining such a petition.[4] The
scope of ’public interest litigation' under Art. 226 has been explained in Dattaraj Nathuji
Thaware vs. State of Maharashtra And Ors.21 The Court observed that 'public interest
litigations' were to be admitted with great care and for redressal only of genuine public
wrongs or injury and not for the redressal of private, publicity- oriented or political disputes
or other disputes not genuinely concerned with public interest.

2. Thus, it’s clear that the Love and Care for Childern, Kerala has no locus standi. This is a
case of suggestio falsi ET suppressio veri. Therefore it is humbly presented before the
Hon’ble court that the present petition is not maintainable.

16
State of Karnataka v. M. Devendrappa and Anr (2002) 3 SCC 89
17
State of Haryana v. Bhajan Lal AIR 1992 SC 604
18
Olga Tellis v. Bombay Municipal Copn., AIR 1986 SC 180
19
Basu, D., Lakshmanan, A., Manohar, V., Banerjee, B. and Khan, S. (2009). Shorter constitution of India.
Gurgaon: LexisNexis Butterworths Wadhwa Nagpur.
20
R.Rajagopala Alias R.R.Gopal And Another v.State of T.N And Others AIR 1995 SC 265
21
Dattaraj Nathuji Thaware vs. State of Maharashtra and Ors. Special Leave Petition (civil) 26269 of 2004

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 Memorial Respondent

ARGUMENTS PRESENTED ON BEHALF OF UNION OF INDIA

1. The termination of the pregnancy shall not be allowed beyond the statutory bounds
inscribed in the Section 3 Sub Section 2 clause (a) & (b)

1.1 An unborn child beyond the prescribed statutory bounds can be regarded as a person.

1. The Art. 21 of Indian constitution provide right to life & right to privacy & The Art. 6(1)
of the International Covenant on Civil & Political Rights prohibits the arbitrary deprivation of
life. But there are some controversial issues related to this supreme right. One such issue is
the question of Right to abortion. Among other rights of women, it is believed that every
mother has a right to abortion, it is a universal right. But the rights of the mother are to be
balanced with the rights of the unborn. Earlier the right to abortion was not permitted & it
was strongly opposed by the society. The termination of pregnancy was termed to be a
murder of the foetus. But due to the change in time & technology, nowadays this right has
been legally sanctioned by most of the nations after the famous decision of Roe Vs Wade22
by the US Supreme Court in this case the Court held that a mother may abort her pregnancy
for any reason, up until the “point at which the foetus becomes ‘viable’.

2. To decide whether a child in the womb of the mother can be called as a person, it is
pertinent to discuss different stages of birth of a child in the womb of a mother. Technically
the term developing 'ovum' is used for the first seven to ten days after conception i.e. until
implantation occurs. It is called an 'embryo' from one week to the end of the second month
and later it is called 'foetus'. It becomes an infant only when it is completely born. An unborn
child aged five months onwards in the mother's womb till its birth can be treated as equal to a
child in existence. The unborn child to whom the live birth never comes can be held to be a
'person' who can be the subject of an action for damages for his death. As already stated
above a person means a human being regarded as an individual and an individual's body:
concealed on his person'.23The Hon'ble High Court in Manikuttan Vs M.N. Baby24 held that
“foetus is another life in the woman and it comes as a baby in the course of time Court
in.

22
[1973] No. 70-18 (United States Supreme Court).
23
Mahima Suri Mukherjee vs Ca
24
2009 ACJ 1497

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 Memorial Respondent

1.2 The state has laid a reasonable restriction in the form of compelling state interest.

1. In competing rights between the public interest and the individual interest, the public interest
would override.25The allegations made against the MTP Act are baseless. There is a rational
connection between state’s interests in protecting women’s health and potential human life and
preventing women from deciding on abortions on their own. Even the law laid down by the
Apex Court In the case of Suchita Srivastava 26is perused, after considering the object of the Act
and provisions of Section 3 as a whole, the Apex Court in paragraph 20 observed that, 'it is
clear that Indian law allows abortion only if the specified conditions are met'27The condition
here to allow abortion is laid down under s. 3 of the MTP Act.

2. 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."28

In the light of arguments advanced it is humbly submitted before the Hon’ble High Court
of Kerala that no termination of pregnancy be allowed beyond the statutory limit
prescribed in the section 3 of the MTP Act.

2. Provisions of the Medical Termination of Pregnancy Act are

constitutional.

2.1. The act places these restrictions to balance a woman’s right to privacy against the
state’s legitimate interest in protecting the woman’s health, as well as the potentiality of
human life.

25
Basu, D., Lakshmanan, A., Manohar, V., Banerjee, B. and Khan, S. (2009). Shorter constitution of India.
Gurgaon: LexisNexis Butterworths Wadhwa Nagpur.
26
Suchita Srivastava & Anr vs Chandigarh Administration [2009] CIVIL APPEAL NO.5845 OF 2009 (THE
SUPREME COURT OF INDIA).
27
(Appearance : vs Chandigarh, 2019)
28
Neelam Choudhary vs Union Of India And Ors (20.6430.18 wp.doc)

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 Memorial Respondent

1. MTP Act has played a vital role in emancipation of woman from the age old fear off
abortion being considered as a sinful and criminal act.29 The idea of a liberalized law of
abortion was first mooted by the Central Planning Board of the Government of India is 1964
as a family planning measure.30. To avoid the misuse of induced abortion and to soften the
rigors of the law of abortion contained in the Indian Penal Code, the Medical Termination of
Pregnancy Act, 1971 was passed.31 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 recognise that reproductive choices can be
exercised to procreate as well as to abstain from procreating. 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.”

2. The ceiling of 20 weeks is due to the fact that the baby becomes viable at this stage. In other
words, the baby is no longer indispensably dependant on its mother’s body & stands a chance
of survival upon delivery, albeit with suitable aids at this premature stage. As it grows, it
becomes more & more capable of independent survival & from seven months of gestation
onwards, the chances of its survival upon birth become bright.32

3. In Nand Kishore Sharma and Ors. vs Union Of India (Uoi) And Anr33 the High Court of
Rjasthan held that “The object of the Act being to save the life of the pregnant woman or relieve
her of any injury to her physical and mental health, and no other thing, it would appear the Act
is rather in consonance with Article 21 of the Constitution of India than in conflict with it.While
it may be debatable as to when the foetus comes to life so as to attract Article 21 of the
Constitution of India, there cannot be two opinion that where continuance of pregnancy is likely

29
K.D. Gour- Abortion and the law in countries of Indian sub-continent, Asean Region , United Kingdom ,
Ireland and United States of America, ppp.306-307 JILI.
30
Amar Jesani, and Aditi Iyer, "Women and Abortion", 27 Economic and
Political Weekly (1993).
31
Shodhganga.inflibnet.ac.in. (2019). [online] Available at:
http://shodhganga.inflibnet.ac.in/bitstream/10603/197919/9/09%20chapter%2004%20pdf.pdf [Accessed 27 Feb.
2019].
32
Dagmar K. Kalousek and Naomi Fitch, Pathology of the Human Embryo and Previable Fetus, 1st Edition.
33
AIR 2006 Raj 166

16
 Memorial Respondent

to involve risk to the life of the pregnant woman or cause grave injury to her physical and
mental health, it would be in her interest to terminate the pregnancy.” Its object, besides
elimination of high incidence of illegal abortion is to confer on women the right of privacy.34

2.2. The provisions in MTP Act allows for exceptions

The section 3 of the MTP Act35 says that pregnancy can be terminated on grounds of:

 Therapeutic indication: in order to prevent injury to the physical or mental health of the
woman.
 Eugenic indication: in view of the substantial risk that if the child were born, it would suffer
from such physical or mental abnormalities as to seriously handicap.
 Humanitarian indication: as the pregnancy is alleged by a pregnant woman to have been
caused by rape.
 Social indication: as the pregnancy has occurred as result of failure of any contraceptive
device or method used by married woman or her husband for the purpose of limiting the
number of children.
 The continuance of the pregnancy would involve risk, greater than if the pregnancy were
terminated, of injury to the physical or mental health of the pregnant woman
 The termination of pregnancy is to be carried out in a government hospital or at a place
approved by the government & two medical practitioners are necessary if the pregnancy is
more than 12 weeks but less than 20 weeks duration; for less than 12 weeks one medical
practitioner can terminate it.
 The consent of woman alone is required if she above 18 year of age, but if she is a minor or
lunatic, consent of the guardian is necessary.

The restrictions posed by MTP is reasonable as it looks into the legal abortion from all
perspectives. Moreover, MTPA isn’t a rigid Act as Section 5 of the Act allows abortion done
in good faith to save the life of the mother n extreme situations. Section 8 provides immunity
to the doctor for an abortion done in good faith.

In the light of arguments advanced it is humbly submitted before the Hon’ble High Court
of Kerala to maintain the constitutional validity of the Medical Termination of Pregnancy
Act, 1971.

34
Doe v. Bolton 41 P.S.I.W 4233 (1973)
35
Medical Termination of Pregnancy Act, Medical Termination of Pregnancy Rules

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 Memorial Respondent

3. Section 312 is constitutionally valid.

3.1 Constitutionality of IPC

1. There is a presumption of constitutionality in favour of all laws, including pre-
Constitutional laws as the Parliament. In Suresh Kumar Koushal and Anr. v. Naz
Foundation and Anr.36 the Supreme Court had held that, “Every legislation enacted by
Parliament or State Legislature carries with it a presumption of constitutionality. This
is founded on the premise that the legislature, being a representative body of the
people and accountable to them is aware of their needs and acts in their best interest
within the confines of the Constitution. There is nothing to suggest that this principle
would not apply to pre-Constitutional laws which have been adopted by the
Parliament and used with or without amendment. If no amendment is made to a
particular law it may represent a decision that the Legislature has taken to leave the
law as it is and this decision is no different from a decision to amend and change the
law or enact a new law. In light of this, both pre and post Constitutional laws are
manifestations of the will of the people of India through the Parliament and are
presumed to be constitutional.”
2. In Nand Kishore Sharma v Union of India it was held that the context of Sections
312 and 315, IPC, it would appear that the object of the Act was to make the
provisions relating to termination of pregnancy stringent and effective rather than to
permit blatant termination of pregnancy. Section 312 of the IPC made causing
miscarriage an offence except in good faith for the purpose of saving the life of the
woman without laying down the manner in which pregnancy could be medically
terminated. Section 3 of the Act provides the guidelines or limitation within which the
pregnancy could be terminated.

3.2 Right to life of the unborn child.

1. The most important right of humans is the right to life. It is the supreme human right. It is
inalienable. Under the Indian Penal Code, 1860, injury to a child in womb is a punishable
offence. The rights of a child en ventre sa mere, in the family property and inheritance are very
well recognized. A child in the womb of the mother is for most purposes regarded in English

36
Suresh Kumar Koushal and Anr. v. Naz Foundation and Anr. Civil Appeal No. 10972 of 2013

18
 Memorial Respondent

law as being already born. In Hindu law a child in his mother’s womb is equal in many respects
to a child actually in existence.

2. The right to life of a person is not an absolute right and is restricted by ‘procedure established
by law’. India being a welfare state can’t sacrifice the interest of one being at the cost of other.
In Queen Empress V Ademmia, the Madras High Court in 1888, had stated that, “The fact that
the unborn child is physically dependent on its mother prior to birth need not lead to the
assumption that it has no relevant separate existence nor to the assumption that it has no legal
or moral significance.” Thus the state is under the obligation to protect the life of the unborn
along with that of the mother.

In the light of arguments advanced it is humbly submitted before the Hon’ble High Court
of Kerala that to maintain the constitutionality of Section 312 of IPC.

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 Memorial Respondent

ARGUMENTS ON BEHALF OF STATE OF KERALA

1. Present petition is not maintainable and the FIR cannot be quashed

1.1 The allegations constitute offence prima facie
1. It is humbly submitted before the Hon’ble High Court of Kerala that the abortion
conducted on Ms.R was without proper enquiry and the charges in the FIR are prima facie
constituting offence under the I.P.C.
2. FIR is fit to be quashed if the charges in the FIR do not constitute an offence under
the I.P.C. as the charges are so absurd that no prudent person can even reach a just conclusion
that there is sufficient ground for proceedings against the accused.37 Also the FIR can be
quashed if any information accompanying the FIR do not disclose the cognizable offence or
do not support or disclose the commission of any offence against the accused.38
3 In the present case, the charges are filed under the MTP Act read with Section 312 of
I.P.C. .The doctor conducted the abortion on Ms.R is not in compliance with the provisions of
the MTPA, as violation of the MTPA is cognizable in nature.39 It can be seen that there has
been a commission of offence by Dr. Margret Alexi. In the case of S.M. Datta vs. State of
Gujarat,40 the Apex court observed that criminal proceedings should not be discharged at
initial stage, unless the same amounts to abuse of the due process of law. Hence, it may be
submitted that the FIR should not be quashed and a thorough investigation should be
initiated.

1.2 There must be further investigation

1. The counsel humbly submits before the Hon’ble High Court that there was an offence
committed by the petitioner as an abortion was conducted without following any due
procedures. The abortion was conducted by Dr. Margret Alexi just on the strong
conviction of Ms.R. , Even though the foetus was 5 weeks old it can be said as the
responsibility of the doctor to enquire about the pregnancy and make sure that the facts of
the pregnancy, comply with the provisions of the MTPA.
4 It can be seen from the conduct of the doctor of not enquiring as a mala intention to abet
with wixi in causing miscarriage41. The petitioner has violated the MTPA and section 312
of IPC which being a cognizable offence. The state has the right to investigate any

37
State of Haryana vs Bhajanlal, AIR 1992 SC 604
38
Ibid
39
Moot preposition, Pg.No.1
40
AIR 2001 SC 3253, ¶9
41
Section 312 of IPC

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 Memorial Respondent

cognizable offence happening in the state under the Section 154 and 156 of the Cr.P.C,
1973.
1.3 The Doctor didn’t follow the necessary procedures
1. Any doctor who wishes to perform abortion on a person is liable to perform proper enquiry
and make sure that it is in accordance with MTPA, except when the mother is in
immediate danger and abortion of the pregnancy is really necessary, the doctor can
perform abortion without following the proper procedure laid down in the statute which in
turn can be justified on moral grounds.42 In this present case the mother was not in a state
of imminent danger so it can be termed as wrong on part of Dr. Margret Alexi who
performed the abortion without following the proper procedure by not enquiring about the
pregnancy and making sure that an abortion can be conducted in lieu with the provisions
of the MTPA.
2. It can be seen from the facts of the case that Dr. Margret Alexi terminated the pregnancy
on the strong conviction of the patient but it is expressly stated that there should be a
written consent i.e., a fully filled form C from the patient, failing to comply with these
norms can be termed as violation of MTPA. the fact that Dr. Margret Alexi performed the
abortion without proper procedure can be termed causing miscarriage under Section 312
of the IPC, it can be seen that Wixi also had the same intention of causing miscarriage due
to which he brought Ms.R to the hospital run by one of the believers of his ashram so it
can be related that both wixi and Dr. Margret Alexi had the same mal intention and that
abetment had been done by the Doctor with wixi in causing miscarriage. The counsel
humbly submits before the court that from the prima facie evidence Dr. Margret alexi has
violated the MTPA act and has committed a wrong under section 312 and section 107
(abetting of the offence) of the Indian Penal Code.

In the light of arguments advanced it is humbly submitted before the Hon’ble High Court
of Kerala that the petition is not maintainable and the FIR cannot be quashed.

42
Section 8 of the MTP Act 1971

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 Memorial Respondent

ARGUMENTS PRESENTED ON BEHALF OF UNION OF INDIA

All forms MTP should not be abolished in India and mother should give
enough discretionary power to decide.

1. Article 21 of the constitution does not absolutely defend the rights of an unborn child
1. The Art. 6(1) of the International Covenant on Civil & Political Rights43 prohibits the
arbitrary deprivation of life and Art. 21 of the Constitution read as “No person shall be
deprived of his life or personal liberty except according to procedure established by law”
The expression procedure established by “procedure established by law” means procedure
laid down by statute or procedure prescribed by the law of the State. Sec 11 of the Indian
Penal Code includes an unborn child in its definition of persons only if its body is
sufficiently developed in its mother’s womb to call it a child. Nowhere in the whole of Art.
21 it has been explicitly stated that the provision of the said Act extends to all unborn
children. India has borrowed the concept of fundamental right from U.S.A and therefore it
is right to view the scope of fundamental rights in India in light of American case laws.
2. In the famous decision of Roe Vs Wade44 by the US Supreme Court in this case the Court
held that a mother may abort her pregnancy for any reason, up until the “point at which the
foetus becomes ‘viable’”.
3. In Dietric v. Northampton45it was held that “failing any precedent that conferred upon the
child a prenatal cause of action in tort, it was held that it was a clear and incontrovertible
principle of common law that the unborn child was not a ‘person’ under the law but a part
of the mother with no separate entity or existence before birth.” Reproductive rights are the
natural rights of women and are necessary for their health and well-being. The structurally
forced maternity is a perpetuation of economic, domestic and sexual equally, abortion is
needed to redress a woman’s basic lack of control over process of reproduction. Among
other rights of women, it is believed that every mother has a right to abortion, it is a universal
right. But the rights of the mother are to be balanced with the rights of the unborn.
4. In the case of Suchita Srivastava46 , the Court held that there is no doubt that a woman’s
right to make reproductive choices is also a dimension of “personal liberty” as understood
under Art. 21 of the Constitution of India. But there is also a “compelling State Interest” in

43
Article 6, International Covenant on Civil & Political Rights
44
supra
45
138 Mass 44, 52 Am. Resp. 242.
46
supra

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 Memorial Respondent

protecting the life of the prospective child and, therefore the termination of the pregnancy
could only be permitted under the condition specified in the MTPA, 1971 which are to be
viewed as reasonable restrictions placed on the exercise of reproductive choices.

In the light of arguments advanced it is humbly submitted before the Hon’ble High Court
of Kerala that the petition filed to abolish all forms of Medical Termination of Pregnancy
is in direct violation of rights of women therefore should be dismissed.

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 Memorial Respondent

PRAYER

Wherefore, in the light of facts of the case, issues raised, submissions advanced and authorities
cited it is humbly pleaded that this Hon’ble High Court may be pleased to adjudge and declare
that:

1. From Union of India:

1) The writ petition is not maintainable.
2) The termination of the pregnancy shall not be allowed beyond the statutory
bounds inscribed in the Section 3 Sub Section 2 clause (a) & (b)
3) To hold and declare that Section 312 is constitutionally valid.
4) To hold and declare that provisions of MTP are constitutionally valid.
2. From state of Kerala:
1) To hold and declare that Present petition is not maintainable and the FIR should
not be quashed
3. From Union of India:
1) The writ petition is not maintainable.
2) To hold and declare that Article 21 of the constitution does not absolutely defend
the rights of an unborn child.

And pass any other order in favor of the petitioners that this Hon’ble Court may deem fit in the
ends of justice, equity, and good conscience. All of which is respectfully submitted.

S/d_________________

Date:

(Counsel for the Respondent)

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