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Team code: T18

NORTH EASTERN HILL UNIVERSITY MOOT COURT PROBLEM-1,

10th SEMESTER, 2023

BEFORE THE HON’BLE SUPREME COURT

Civil Appellate Jurisdiction Civil Appeal No. 15/2023

Meena...........Appellant
v.

Ajay..........Respondent

MEMORIAL ON BEHALF OF THE RESPONDENT

TTTable of content

From the side of the Respondent

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Table of Contents

Table of abbreviation.............................................................................................................................3
Index of authorities................................................................................................................................4
STATEMENT OF JURISDICTION......................................................................................................5
STATEMENT OF FACTS....................................................................................................................6
STATEMENT OF ISSUES...................................................................................................................7
SUMMARY OF ARGUMENTS...........................................................................................................8
ADVANCE ARGUMENT....................................................................................................................9
Whether the classification made under Section 3 of the Medical Termination of Pregnancy Act, 1971
(MTP Act) unreasonable and violates Article 14?.................................................................................9
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?.......................................13
PRAYER.............................................................................................................................................15

From the side of the Respondent

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Table of abbreviation
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SC Supreme Court
SCC Supreme Court Cases
AIR ALL India Reporter
NO. Number
Vol. Volume
Const Constitution
v. Versus
Ltd Limited
SCR Supreme Court Reports
Ors Others
Retd Retired
i.e., That is
Art Article
COI Constitution of India
U/S Under Section
MTP THE MEDICAL TERMINATION OF
IEA PREGNANCY
Indian Evidence Act

From the side of the Respondent

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Index of authorities
Cases

Cases

 Alakh Alok Srivastava vs. Union of India (2018) 7 SCC 69…………………………………….10

 Ashok kumar v. Raj Gupta 2021………………………………………………………………..14
 A v. Union of India and others(2018) 14 SCC 75……………………………………………............11
 Bhabani Prasad Jena vs. Convenor Secretary, Orissa State Commission for Women (2010) 8 SCC
633, (2010) 9 SCR 457…………………………………………………………………………..13
 Dipanwita Roy vs. Ronobroto Roy (2015) 1 SCC 365, AIR 2015 SC 418………………………13
 Sharda vs Dharmpal AIR 2003 SC 3450, (2003) 4 SCC 493……………………………………14
 Murugan Nayakar v. Union of India and Ors., (2018) 16 SCC 163……………………………..11
 Ms. X v. State of Kerala and others(2016) 5 KHC 673 : (2016) 4 KLT 745…………………………11
 Ram Krishna Dalmia v. Justice S.R. Tendolkar, AIR 1958 SC 538...........................................10
 Sharda vs. Dharmpal AIR 2003 SC 3450, (2003) 4 SCC 493....................................................14
 State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75.....................................................10

Books

M P Jain, Constitution of India 8th Edition, 2018

Dr. Ishita Chatterjee, Health Law, First Edition

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STATEMENT OF JURISDICTION

The counsel humbly submits that the Supreme court exercises its jurisdiction conferred on it
by the virtue of Section 3 of Medical Termination of Pregnancy Act, 1971 read with Article
14 and Article 21 of the Indian Constitution.

THE MEDICAL TERMINATION OF PREGNANCY (AMENDMENT) ACT, 2021

In section 3 of the principal Act, for sub-section (2), the following sub-sections shall be
substituted, namely:— "(2) Subject to the provisions of sub-section (4), a pregnancy may be
terminated by a registered medical practitioner,— (a) where the length of the pregnancy does
not exceed twenty weeks, if such medical practitioner is, or (b) where the length of the
pregnancy exceeds twenty weeks but does not exceed twenty-four weeks in case of such
category of woman as may be prescribed by rules made under this Act, if not less than two
registered medical practitioners are,

Article 14 of the Indian Constitution Reads as under Right to Equality

The State shall not deny to any person equality before the law or the equal protection of the
laws within the territory of India.

Article 21 of the Indian Constitution reads as under Protection of life and personal liberty.

No person shall be deprived of his life or personal liberty except according to procedure
established by law.
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STATEMENT OF FACTS

1. 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.
2. 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.
3. 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.
4. 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.
5. 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

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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

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SUMMARY OF ARGUMENTS

Whether the classification made under Section 3 of the Medical Termination of Pregnancy
Act, 1971 (MTP Act) unreasonable and violates Article 14?

The counsel for Respondent humbly submits before this Hon’ble court that the classification
under section 3 of the Medical Termination of Pregnancy (Amendment) Act, 2021, does not
violate Article 14 of the Constitution of India. It is pertinent to note that the classification
under the section is based on intelligible differentia and hence is in no way arbitrary or
discriminatory.

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 council of the respondent humbly submits that the denial of petitioner’s
claim to conduct DNA test to establish parentage of fetus to uphold her dignity
does not violate Article 21.The fundamental right to privacy under Article 21is
not absolute and is reasonable restrictions in the interest of public order,
morality, and protection of the rights of others. It is pertinent to note that the
court before granting DNA test the court has to consider the balance of rights
and interest of all the parties involved.

From the side of the Respondent

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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:
1) The MTP Act, as amended in 2021 no longer categorises women as married and
unmarried women and does not violate Article 14.
2) 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
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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. Tendolkar1, 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 Sarkar2, 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, 19783 for permissible
classification.
1.11 In Alakh Alok Srivastava vs. Union of India4, 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.
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termination. The Medical Board opined that the continuation of the pregnancy was less
hazardous for the petitioner than termination at that stage.
1.12 In X v. Principal Secretary, Health and Family Welfare, Delhi High Court had denied
the permission to undergo medical termination of pregnancy at 23 weeks saying that it
virtually amounts to killing the foetus.
1.13 That from the above extract, it is abundantly clear that the classification under section
3 of the MTP Act based on the duration of pregnancy is not unreasonable and violates
article 14 but rather it takes into consideration the health of the woman and tries to
balance the right of both the woman and the unborn child.
1.14 The MTP Amendment Act, 2021 under section 3(b) increases the upper limit for
termination of pregnancy from 20 weeks to 24 weeks for specific categories of women,
which is established in the MTP Rules 2021.
1.15 It is contended that the classification contained 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 who
are eligible to have their pregnancy terminated after 20 weeks of carrying the pregnancy
but not beyond twenty four weeks, is just and reasonable as it recognizes the right of the
woman to have control of her own body and make decisions regarding her own
reproductive health.
1.16 In Murugan Nayakkar v. Union of India and Ors.5, the SC allowed the termination
of a 32-week old pregnancy of a 13-year-old rape victim held that “Considering the age
of the petitioner, the trauma she has suffered because of the sexual abuse and the agony
she is going through at present and above all the report of the Medical Board constituted
by this Court, we think it appropriate that termination of pregnancy should be allowed.”

1.17  In A v. Union of India and others6, The SC allowed the termination of 25/26 week
old pregnancy of women as the foetus was suffering from an incurable medical condition.
The medical board suggested that it would be in the best interest of the mental health of
the women to abort the child.

1.18 In Ms. X v. State of Kerala and others7, the court allowed the termination of
pregnancy of rape victim which has exceeded the 20- week limit stating that the petitioner
was not in a mental stage to continue the pregnancy.
5
(2018) 16 SCC 163.
6
(2018) 14 SCC 75
7
(2016) 5 KHC 673 : (2016) 4 KLT 745
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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 Administration8, 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
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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?
2. 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
women9, 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 Roy10, 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
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2.9 In Sharda vs Dharmpal11, the Court has stated that the right to the privacy under Art. 21
cannot be treated as an absolute right and that if there are conflicts between the
fundamental rights of the parties involved, the right which is more convincing towards
the public morality would be taken into consideration.
2.10 It is submitted that in this case the rights and interest of the potential child outweighs
the right of the woman under 21 which is to merely prove a point which is to deny
infidelity and that the denial of the DNA test is rightly justified and does not violate
article 21.
2.11 It is further contended that allowing a DNA test would violate the right to privacy of
the respondent.
2.12 In the case of Ashok Kumar v. Raj Gupta12, it was held that the court does not have
the power to direct a party to undergo DNA testing against their wishes & that also before
granting an order to conduct the DNA test, the court must first examine the
proportionality of legitimate aim in pursuing such test i.e. whether such test are not
arbitrary or discriminatory, or would have an adverse effect on the privacy of the
individual subjected to this test.
2.13 It is submitted that in the present case there is no legitimate aim in pursuing the DNA
test. In the present case the aim appellant in claiming a DNA test is not to establish the
status of legitimacy of the child and for establishing the rights of the child but merely to
deny the allegation of infidelity.
2.14 It is contended that allowing the DNA test for such an arbitrary aim would only
violate the right to privacy of the respondent.
2.15 From the above extract it is clear that the court in denying the paternity test does not
violate the right of the appellant under Article 21 of the COI but rather it is acting in the
interest of justice in protecting best interest of the child as well as the rights of the
respondent.

11
AIR 2003 SC 3450, (2003) 4 SCC 493
12
(2014) 7 SCC 281.
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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:

1. 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.
2. 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.