Memorial for Petitioner

FM14
Freshers Moot 2019

BEFORE THE HON’BLE HIGH COURT OF KERALA

I. Dr. Margret Alexi &

Ms R represented by Smt. Kanthmathi

Petitioner
Versus

1.Unioon of india Respondent

And

II. Love and Care for Children, Kerala

Petitioner
Versus

Union of India Respondent

And

III. Dr. Margret Alexi Petitioner

Versus
State of Kerala Respondent

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 Memorial for Petitioner

Table of Contents

1)Index of Authorities …………………………………………………….

2)Statement of Jurisdiction………………………………………………...

3)Statement of facts……………………………………………………….6

4)Statement of issues………………………………………………………8

5)Summary of arguments………………………………………………….9

6)Written Pleadings……………………………………………………….10

7)Prayer……………………………………………………………………24

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 Memorial for Petitioner

Index of Authorities

 The Medical Termination Of Pregnancy Act, 1971 (Act No. 34 of 1971)

 Indian Penal Code, 1860 (Act No. 45 of Year 1860)
 Shorter Constitution of India: Articles 152 to End
, Durga Das Basu (book)

Statement of Jurisdiction

The Petitioners, hereby, submit that this Honourable Court holds the capacity of the High
Court 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 holds the
jurisdiction thereto.

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 Memorial for Petitioner

Statement of Facts

 I.            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.
     II.          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.
   III.            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

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 Memorial for Petitioner

Women (CPWW), an NGO instituted for the care and protection of wandering
women.
IV. 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.
V. 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,
VI.      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.
VII. 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.
VIII. 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

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 Memorial for Petitioner

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 for Petitioner

Statement of Issues

i. Questions presented on behalf of Dr. Margret Alexi and Ms R through

Smt. Kanthmathi
 Whether the writ petition is maintainable?
 Whether termination of the pregnancy be allowed beyond the statutory bounds
inscribed in the Section 3 Sub Section 2 clause (a) & (b)?
 Whether section 312 of IPC penalising miscarriage and MTP Act is
constitutionally valid?

ii. Questions presented on behalf of Dr. Margret Alexi

 Whether present petition is maintainable and the F.I.R lodged against Dr.
Margaret Alexi can be quashed?
iii. Questions presented on behalf of Love and Care for Children, Kerala
(LACCK)
 Whether the writ petition is maintainable?
 Whether 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?
 Whether Article 21 of the constitution defends the right of an unborn child?

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Summary of Arguments

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 Memorial for Petitioner

Written pleadings

I. Ms R represented by Smt . Kanthmathi & 2.Dr. Margret Alexi

 Whether the writ petition is maintainable?
The jurisdiction of Supreme Court under Article 32 or of a High Court under
Art. 226 to enforce a fundamental right arise where a fundamental right of a
petitioner has been affected by an act or order of in the following case inter
alia:1(a) where the action has been taken under a statute which is ultra vires
the constitution.2The Medical Termination Of Pregnancy Act, 1971 is arbitrary
in nature. The state can, place limitations on fundamental rights, but these
limitations must pass tests outlined in constitutional jurisprudence. Since
privacy claims can be grounded in any of our fundamental rights, the
constitutional bench on Justice K S Puttaswamy v Union of India affirmed that
any limitation on privacy will be tested according to the fundamental rights
which it infringes and the established jurisprudence on those rights. The bench
separately highlighted Article 21, which guarantees the fundamental right to
life and personal liberty, and entails a “just, reasonable, and fair” test in
Maneka Gandhi v Union of India (1978), that is, any law restricting Article 21
must be “just, reasonable, and fair” to remain constitutionally valid.
Applying either standard would raise significant challenges to Sections 3 and
5 of the MTP Act which takes us to the conclusion that there is no rational
nexus between state’s interests in protecting women’s health and potential
human life and preventing women from deciding on abortions on their own. In
the present case this unreasonable arbitrary law has infringed the fundamental
right guaranteed under Art. 21 of the indian Constitution of the petitioner Ms
R and is therefore represented by.Smt. Kanthmathi & .Dr. Margret Alexi for
the enforcement of the same. Thus, it is humbly submitted that this petition is
maintainable.
 Whether termination of the pregnancy be allowed beyond the statutory bounds
inscribed in the Section 3 Sub Section 2 clause (a)&(b) ?

ii. Questions presented on behalf of Dr. Margret Alexi

Present petition is maintainable and the F.I.R lodged against Dr. Margaret Alexi
can be quashed.
1. It is prima facie evident from the facts of the case that Dr. Margret Alexi
diagnosed the pregnancy to be advanced by five weeks and it was based on the
strong conviction of the patient that Dr. Alexi terminated the pregnancy and that
too by using a simple procedure. MTP Act provide for the termination of certain
pregnancies by registered medical practitioners and for matters connected
therewith or incidental thereto. Section 3 of the same lays down the conditions to
1
Olga Tellis v. Bombay Municipal Copn., AIR1986 SC180 (para 31)
2
Basu, D., Lakshmanan, A., Manohar, V., Banerjee, B. and Khan, S. (2009). Shorter constitution of India.
Gurgaon: LexisNexis Butterworths Wadhwa Nagpur.

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 Memorial for Petitioner

be fulfilled for the termination of the pregnancy by a registered medical

practitioner and Section 8 of the same provides the practitioner the protection of
action taken in good faith3The accused Margaret Alexi acted in accordance with
the law and no offence is committed nor partook in abetting an offence. Therefore
a ground for abetment under Section 109 of IPC is not satisfied.4
2. In Rex v. Bourne5 An eminent obstetrics surgeon was convicted under
Section 58 of the offences against the Person Act 1861 6 Justice Macghnoton
observed that if the operation was done bona fide to save the life of the mother
defendant is entitled to an acquittal, that the bona fide object of practically certain
physical or mental breakdown of the mother would afford an excuse.
3. Therefore it is submitted before the hon'ble High Court of Kerala that there is
sufficient ground for quashing the FIR. The power under the section 482 of Cr.P.C
should be exercised ex debito justitiae to prevent the abuse of process of the Court
as it is meant to advance justice. 7Where even remote chance of the prosecution
resulting in conviction did not exist, it was held to be a fit case for interference
u/s. 482 of the Cr.P.C.8The Supreme Court upheld the High Court’s order in
quashing the F.I.R holding that no case was made out against the accused even
after taking the allegation as correct on its face value. 9When the FIR and charges
give rise to no offence, the Court quashed it because it was an abuse of the process
of the Court. 10The inherent powers under Section 482 of the Cr.P.C are present
for the advancement of justice. Injustice by abuse of process of Court can be
prevented by exercising inherent powers. Such powers have to be used when facts
are incomplete or hazy or no evidence is produced in support of the facts. 11 In
exercising jurisdiction under Section 482 of Cr.P.C. the High Court can quash

3
The Medical Termination Of Pregnancy Act, 1971.3,8.
4
The Indian Penal Code, 1856.109
5
10. [1938] 3 All E.R. 615 at p. 621. Held that all therapeutic abortions
are lawful. See D. S. Devies, "The Law of Abortion and Necessity"
1938 L.R. 126.
6
Section 58 makes an attempt to procure abortion by administering drugs or using instruments to procure
abortion and Section 59 for procuring drugs, etc., to cause abortion publishable with imprisonment for life and
up to five years respectively. Indian law of abortion has been modelled on Sections 58 and 59 of the Offences
against the persons Act 1861, with certain modifications.
7
State of Maharashtra v. Arun Gulab Gawali, AIR 2010 SC 3762
8
Anurag Chopra v. State, 1989 CrLJ 2227 (Del.)
9
Dhanwanti Vaswani (Dr.) v. State, AIR 1993 SC 1218
10
Parminder Kaur v. State of Uttar Pradesh, AIR 2010 SC 840
11
Inder Mohan Goswami v. State of Uttaranchal, AIR 2008 SC 251

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 Memorial for Petitioner

proceedings if there is no legal evidence. 12 In cases where FIR does not disclose a
prima facie offence it is legitimate for the High Court to hold that it would be
manifestly unjust to allow the process of the criminal Court to be issued against
the accused.13

Termination of the pregnancy be allowed beyond the statutory bounds inscribed

in the Section 3 Sub Section 2 clause (a) & (b)
MTP “Act provide for the termination of certain pregnancies by registered
medical practitioners and for matters connected therewith or incidental thereto”14 But
the 46-year-old act has met rising opposition over the years for its restrictive nature
and failure to keep up with technological advancements in medicine. 15 Sections 3 and
5 of the MTP Act evidently infringe women’s rights to make reproductive choices,
which the bench affirmed as parts of the right to privacy. At no point during a
pregnancy can a woman choose to get an abortion on her own, which prevents women
from exercising their rights to physical integrity and making free choices relating to
their bodies.16

2.2 woman's right to make reproductive choices is also a dimension of

`personal liberty' as understood under Article 21 of the Constitution of India. 17
The Court deduced the existence of such a right from a woman’s right to
privacy, dignity and bodily integrity. Individual rights are political trumps held
by individuals. Individuals have rights when, for some reason, a collective
goal is not a sufficient justification for denying them what they wish, as
individuals, to have or to do, or not a sufficient justification for imposing some
loss or injury upon them.18

12
Hazari Lal Gupta v. Rameshwar Prasad, AIR 1972 SC 484
13
R.P. Kapur v. The State of Punjab, AIR 1960 SC 866
14
The Medical Termination Of Pregnancy Act, 1971
15
One specific advance can be mentioned here relates to the detection of cardiac anomalies after 22 weeks of
pregnancy. The National Commission for Women (NCW) recommended that the Union Health Ministry
increase the time limit from 20–24 weeks, keeping in mind current developments in medical diagnostic
technologies, in addition to the social scenario. The MTP Amendment Bill 2014 also increases the time limit
from 20–24 weeks keeping in mind the recommendation of the NCW.
16
The Medical Termination Of Pregnancy Act, 1971 s.3
17
Suchita Srivastava & Anr vs Chandigarh Administration [2009] CIVIL APPEAL NO.5845 OF 2009 (THE SUPREME
COURT OF INDIA).
18
Ronald Dworkin, Taking Rights Seriously, Duckworth (1977)

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 Memorial for Petitioner

2.3 In a land mark judgement in US Supreme Court of Roe v. the court came to the
conclusion that the word ‘person’, as used in the Fourteenth Amendment, does not include
the unborn.” The right of a woman to choose to have an abortion fell within this fundamental
right to privacy, and was protected by the Constitution. The justices noted that states did
have some legitimate interests in regulating or prohibiting abortions.19

2.4 The explicit recognition and reaffirmation of the right of all women to control all
aspects of their health, in particular their own fertility, is basic to their
empowerment.20 Indian courts are under an obligation to give due regard to
international conventions and norms while interpreting domestic laws
and particularly when there is no inconsistency between them and
there is a void in domestic law.21

Questions presented on behalf of Love and Care for Children, Kerala (LACCK)

 Whether the writ petition is maintainable?

Writ petition under Art. 226 against the State or its instrumentality, inter alia,
for payment of compensation for the tortious act or violation of fundament of
any person by its employees, is maintainable, irrespective of availability of an
alternate remedy by way of civil suit for damages. 22 In exercising of this
power, the court should not forget the object with which the procedural
technicalities have been relaxed, viz., to provide easy access to justice to the
weaker section of humanity and to combat exploitation and injustice and to
secure to the underprivileged segments of their social and economic
entitlements23 Only a person acting bona fide and having sufficient interest in
the proceeding of a PIL will alone have locus standi and can approach the
court to wipe out the tears of the poor and needy suffering from violation of

19
Roe v. Wade [1973] No. 70-18 (United States Supreme Court).
20
(Fourth World Conference on Women, 1995).17
21
Law Commission of India Consultation Paper on Reform of Family Law. (2018). Government of India, p.15.
22
Chairman, railway Board v. chandrima Das, (2000) 2 SCC 465 (paras 9,11 and 12)
23
State of H.P. v. Parent of a student of Medical College, Shimla (1985) 3 SCC 169 (paras 2, 4, 5)

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their fundamental rights but not a person for personal gain or private profit or
political or any oblique considerations.24In the present case Love and Care for
Children, Kerala (LACCK) acting in bona fide represents the weaker section
of humanity i.e, unborn children whose Right to life guaranteed under Art 21
of the Constitution has been unreasonably violated by the State through its
arbitrarily made law The Medical Termination Of Pregnancy Act, 1971 (Act
No. 34 of 1971) and therefore for the aforementioned reasons it is submitted
before the Hon’ble court that the present petition is maintainable.

24
Kansing kalusing Thakore v. Rabari Maganbhai Vashrambhai, (2006) 12 SCC360, 366-67 (para 24)

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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:

 
     

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 Petitioners)

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