MEMORIAL ON BEHALF OF THE RESPONDENT

TEAM CODE – 41R

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

CONCOURS 2021

BEFORE THE
HON’BLE SUPREME COURT OF UNION OF ARTARA

SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE CONSTITUTION OF

ARTARA
BEENA TRIPATHI…………………………………………………………. PETITIONER
v.
AKHANDANAND TRIPATHI……………………………………………. RESPONDENT

CLUBBED WITH
APPEAL UNDER THE SECTION 24(4) OF THE HUMAN IMMUNO DEFICIENCY
VIRUS AND ACQUIRED IMMUNE DEFICIENCY SYNDROME ACT, 2017
BEENA TRIPATHI…………………………………………………………. PETITIONER
v.
CREACH BANDY HOSPITAL & DR. MURLI PRASAD……………. RESPONDENT

CLUBBED WITH
APPEAL UNDER SECTION 23 OF THE CONSUMER PROTECTION ACT, 1986
BEENA TRIPATHI…………………………………………………………. PETITIONER
v.
DURGA CHARITABLE TRUST BLOOD BANK………………………. RESPONDENT
DR. RAMADHIR SINGH…………………………………………………. RESPONDENT

CLUBBED WITH
WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF ARTARA
BEENA TRIPATHI…………………………………………………………. PETITIONER
V.
UNION OF ARTARA & STATE OF WASSEYPUR…………………… RESPONDENT
MEMORIAL ON BEHALF OF THE RESPONDENT

TABLE OF CONTENTS

LIST OF ABBREVIATIONS....................................................................................................3

INDEX OF AUTHORITIES......................................................................................................4

STATEMENT OF JURISDICTION..........................................................................................5

STATEMENT OF FACTS........................................................................................................6

ISSUES RAISED.......................................................................................................................8

SUMMARY OF ARGUMENTS.............................................................................................10

ARGUMENTS ADVANCED.................................................................................................12

I. THE EX PARTE ORDER OF THE PRINCIPAL JUDGE OF THE FAMILY COURT,

SHOULD NOT BE SET ASIDE..........................................................................................12

1.1 THE SPECIAL LEAVE PETITION IS NOT MAINTAINABLE........................12

1.2 THE EX PARTE ORDER CANNOT BE SET ASIDE ON THE GROUNDS OF

INORDINATE DELAY...................................................................................................13

1.3 THE CAUSE OF NON-APPEARANCE IS INSUFFIEICIENT..........................14

II. THE DESCISION OF THE NATIONAL DISEASE TRIBUNAL DENYING THE

LIABILITY OF DOCTOR MURLI PRASAD AND CREACH BANDY HOSPITAL FOR
THE VIOLATION OF SECTION 9 OF HIV AIDS ACT, 2017, SHOULD BE UPHELD.
16

1.1 RIGHT TO LIFE OF THE SPOUSE WILL PREVAIL OVER THE RIGHT TO
PRIVACY OF THE PARTY............................................................................................16

1.2 THE HUSBAND EXERCISED LEGAL RIGHT IN A LAWFUL MANNER....17

1.3 THE DISCLOSURE WAS LAWFULLY MADE IN CONSONANCE WITH

THE SECTION 9 OF THE HUMAN IMMUNO DEFICIENCY VIRUS AND
ACQUIRED IMMUNE DEFICIENCY SYNDROME (PREVENTION AND
CONTROL) ACT, 2017...................................................................................................18

III. THE NCDRC ORDER REVISING THE DECISION OF THE SCDRC OF

HOLDING THE DURGA CHARITABLE BLOOD BANK AND DR. RAMADHIR
MEMORIAL ON BEHALF OF THE RESPONDENT

SINGH LIABLE FOR DEFICIENCY IN SERVICE AND MEDICAL NEGLIGENCE

SHOULD BE UPHELD.......................................................................................................20

3.1 CONSENT ALREADY TAKEN FROM THE HUSBAND.................................20

3.2 THE BLOOD TRANSFUSION DONE IN GOOD FAITH, OWING TO THE

NEED OF THE HOUR.....................................................................................................22

3.3 DURGA CHARITABLE BLOOD BANK IS NOT LIABLE FOR DEFICIENCY

IN SERVICE.....................................................................................................................23

3.4 THE BLOOD BANK IS NOT LIABLE BECAUSE OF THE WINDOW PERIOD
IN ELISA TEST...............................................................................................................24

IV. THE CENTRAL AND STATE GOVERNMENT’S REFUSAL TO FREE

TREATMENT OF A MINOR SUFFERING FROM A RARE DISEASE, WHERE THE
PARENT OF THE CHILD CANNOT AFFORD THE TREATMENT IS NOT IN
VIOLATION OF ARTICLE 21 OF THE CONSTITUTION OF ARTARA......................25

4.1 THERE HAS BEEN NO VIOLATION OF RIGHT TO LIFE PROVIDED

UNDER THE ARTICLE 21 AND ARTICLE 47 OF THE CONSTITUTION OF
ARTARA..........................................................................................................................25

4.2 POLICY DECISIONS OF THE STATE ARE NOT TO BE

DISTURBED/INTERFERED BY THE COURT OF LAW UNLESS THEY ARE
FOUND TO BE GROSSLY ARBITRARY OR IRRATIONAL.....................................27

PRAYER..................................................................................................................................29
MEMORIAL ON BEHALF OF THE RESPONDENT

LIST OF ABBREVIATIONS

1. Const – Constitution
2. Ltd – Limited
3. SCR – Supreme Court Reporter
4. Civ – Civil
5. Proc – Procedure
6. Del – Delhi
7. SCC – Supreme Court Cases
8. DRJ – Delhi Reported Journal
9. Art – Article
10. SCDRC - State Consumer Dispute Redressal Commission
11. DMD - Duchenne Muscular Dystrophy
12. HIV – Human Immunodeficiency Virus
13. AIDS – Acquired immune deficiency syndrome
14. Hon’ble - Honourable
15. Sec - Section
16. NCDRC - National Commission Dispute Redressal Commission
17. WA - Writ Appeal
18. AIR – All India Reporter
19. Mah - Maharashtra
20. MP – Madhya Pradesh
21. JT – Judgement Today
22. SC – Supreme Court
23. Id - Idem
24. Anr - Another
25. Civ - Civil
26. Cri - Criminal
27. Et al – et alia
MEMORIAL ON BEHALF OF THE RESPONDENT

INDEX OF AUTHORITIES

Cases

Balco Employees Union (Regd.) v. Union of India & Ors, (2002) 2 SCC 333, 92..................28
C A Muthu Krishnan v. M. Rajyalakshmi, AIR 1999 AP 311.................................................21
Improvement Trust, Ludhiana v. Ujagar Singh and others, 2010 (6) SCC 786......................15
Kunhayammed v. State of Kerala, (2000) 245 ITR 360 (SC)..................................................13
Mohd. Ahmed (Minor) vs Union of India, & Ors., 2014 SCC OnLine Del 1508....................27
Mr. X v Hospital Z, (1998) 8 SCC 296....................................................................................17
Mr. X v. Hospital Z. (1998) 8 SCC 296...................................................................................19
Mst. Kiran Devi v. Abdul Wahid And Anr, AIR 1966 All 105.................................................14
P. Ravikumar v. Malarvizhi,, 2013 SCC OnLine Mad 1345, 15.............................................18
Pannalal v. Murarilal, 1967 AIR 1384....................................................................................15
Paschim Banga Khet Mazdoor Samity and Ors v. State of West Bengal and Another, 1996 4
SCC 37..................................................................................................................................23
Pritam Singh v. The State, AIR 1950 SC 169..........................................................................13
Samera Kohli v. Dr. Prabha Manchanda and Another., 2008:(1) SCALE 442......................22
State of Punjab & Ors. v. Ram Lubhaya Bagga & Ors., (1998) 4 SCC 117...........................28
State of Punjab and ors. v. Ram Lubhaya Bagga, (1998) 4 SCC 177.....................................26
Sunil Lakhotia v. Pratima Lakhotia, 2008 SCC OnLine Bom 1054, 12..................................18
TT Thomas (Dr.) v. Elisa, AIR 1987 Ker 52............................................................................23

Statutes

Code of Civil Procedure § 9, § 13 (1908)................................................................................14

Code of Medical Ethics Regulation, (2002).............................................................................21
Constitution of Artara. art. 136................................................................................................13
Constitution of Artara. art. 21..................................................................................................26
Constitution of Artara. art. 38..................................................................................................27
Constitution of Artara. art. 47..................................................................................................27
Indian Medical Council Act, (1956)........................................................................................21
Indian Penal Code § 269, (1860)..............................................................................................20
Indian Penal Code § 270, (1860)..............................................................................................20
The Hindu Marriage Act § 13, § 1, § v, (1955).......................................................................18
MEMORIAL ON BEHALF OF THE RESPONDENT

The Human Immuno Deficiency Virus and Acquired Immune Deficiency Syndrome
(Prevention and Control) Act § 9, (2017).............................................................................17
The Human Immuno Deficiency Virus and Acquired Immune Deficiency Syndrome
(Prevention and Control) Act § 9, § 1, § c, (2017)...............................................................19
The Limitation Act § 164, (1963)............................................................................................14

Other Authorities

Dinesh Singh Chauhan, Policy Decisions of the State are not to be disturbed/interfered with
unless they are found to be grossly arbitrary or irrational, Legal Services India E-
Journal(Jan, 2021, 5:00 PM), http://www.legalserviceindia.com/legal/article-1442-policy-
decisions-of-the-state-are-not-to-be-disturbed-interfered-with-unless-they-are-found-to-be-
grossly-arbitrary-or-irrational.html......................................................................................28
Moot Proposition ¶11...............................................................................................................27
Moot Proposition ¶3.................................................................................................................22
Moot Proposition ¶6.................................................................................................................18
MEMORIAL ON BEHALF OF THE RESPONDENT

STATEMENT OF JURISDICTION

The Counsel of the Petitioner has approached the Honourable Supreme Court of Artara:

In the special leave petition of Beena Tripathi v Akhandanand Tripathi, the petitioner has
approached under Article 136 of the Constitution of Artara against the order of the Family
Court of Dhelapur.

In the civil appeal of Beena Tripathi v Creach Bandy Hospital, Wasseypur & Dr. Murli
Prasad, the petitioner has approached the court under Section 24(4) of the Human Immuno
Deficiency Virus and Acquired Immune Deficiency Syndrome Act, 2017 with reference to
the order passed by the National Disease Tribunal.

In the civil appeal of Beena Tripathi v Durga Charitable Blood Bank & Dr. Ramadhir Singh,
the petitioner has approached the court under Section 23 of the Consumer Protection Act,
1986 with reference to the order reserved by the National Consumer Dispute Redressal
Commission.

In the writ petition of Beena Tripathi v Union of Artara & State of Wasseypur; the petitioner
has approached the court under Article 32 of the Constitution of Artara for the violation of
right to life and personal liberty enshrined in Article 21 of the Constitution of Artara.

The present memorandum sets forth the facts, contentions and arguments in the present
case.
MEMORIAL ON BEHALF OF THE RESPONDENT

STATEMENT OF FACTS

1. On 23rd October, Mrs. Beena Tripathi was admitted to the Dr. Ramadhir Singh’s
Chirpy Baby Clinic for the delivery of her child. Due to some complications, the
attending physician, Dr. Ramadhir Singh decided to perform Caesarean surgery. Mrs.
Beena delivered a Baby Boy, Phoolchand, but she suffered from postpartum
haemorrhage. Due to excessive blood loss, the doctor decided that to go for the blood
transfusion and asked Mr. Tripathi to arrange for six units of blood which he brought
from Durga Charitable Blood Bank and handed it to Dr. Singh along with a
certificate of the blood’s suitability for transfusion. Dr. Singh noticed that the label
above the bag was missing but due to shortage of time he went ahead.
2. Few weeks after, when she was had boils on her skin and stool and urine infection, so
she consulted, Dr. Murli Prasad from Creach Bandy Hospital. Dr. Prasad asked her to
undergo ELISA test, in which she was tested HIV positive, and her son Phoolchand,
was too tested HIV positive in similar test. Mrs. Tripathi asked the hospital authorities
not to inform her husband as she will do it at the right time but the hospital authorities
informed his husband, which created a bad impression of her, and Mr. Tripathi filed
for divorce in the Family Court of Dhelapur. The court granted the divorce, but during
the proceedings for maintenance in court Mrs. Beena and her advocated were absent
due to which court passed an ex-parte order and against which Mrs. Beena filed a
Special Leave Petition under article 136.
3. Mrs. Beena also filed a complaint before ombudsman appointed under HIV and AIDS
(Prevention and Control) Act 2017, for the violation of Section 9 of the Act by Dr.
Murli Prasad and Creach Bandy Hospital. She claimed that the act of hospital
informing her husband about her HIV status created a bad impression of her on his
husband and due to which he filed a divorce. While hospital argued that they
informed his husband to prevent the spread of disease and his husband filing a divorce
is exercising his legal right. The ombudsman decided in the favour of Beena and
ordered hospital to pay Rs. 10 Lakh rupees as a damage to which Hospital appealed in
the National Disease Tribunal which overturned the decision and decide it in favour
MEMORIAL ON BEHALF OF THE RESPONDENT

of hospital authorities. Now, Mrs. Beena has filed a civil before the Hon’ble Supreme
Court of Artara.
4. Mrs. Beena also filed a complaint against Durga Charitable Blood Bank for selling
HIV infected blood without proper labelling the blood bag and against doctor for not
testing the blood as the label was missing and not obtaining a consent for the same as
she was not informed of the risk involved in blood transfusion, before the State
Consumer Dispute Redressal Commission, Wasseypur. Before, SCDRC blood bank
and hospital stated the possibility of Mr. Tripathi be the carrier for the virus and
contended that paternity test should be done for the same. It was also averred that if
the HIV was caused because of infected blood, blood bank can’t be held liable as they
took all the necessary precautions. Dr. Ramadhir contented that in postpartum
haemorrhage blood transfusion was only option and filling the consent form before
surgery, the complainant has given his consent for the same.
5. The SCDRC held blood bank liable for deficiency in service under the Consumer
Protection Act, and also stated that Dr. Ramadhir failed to obtain a valid consent
which and the act of blood transfusion to the complainant was an unauthorized act
amounting to a tortious act of assault and battery. The SCRDC directed doctor to pay
Rs. 18 Lakh towards the expenses claimed for the medical treatment of the
complainant and her son. An appeal was filed before the National Commission
Dispute Redressal Commission against the order of SCDRC. NCDRC reversed the
findings of the SCDRC and against this Mrs. Beena filed a petition under Section 23
of the Consumer Production Act in the Hon’ble Supreme Court of Artara.
6. Meanwhile, Phoolchand was diagnosed with Duchenne Muscular Dystrophy (DMD),
a fatal disease in which all the voluntary muscles of the body are weakened. The only
available therapy is Antisense Oligonucleotide, which involves a drug named
‘Exondys 51’, the patients receiving this treatment have a high chance of surviving,
however, this treatment is lifelong and expensive. As Mrs. Beena was incapable of
arranging money for his treatment, she availed the financial assistance from
Wasseypur Arogya Kosh of state government under which Rs. 6 lakhs were released,
however annual cost of the treatment is Rs. 25 lakhs so she sought aid under Rashtriya
Arogya Nidhi Scheme from the Central Government. Due to lack of funds, central
government can’t provide more than Rs. 2 lakhs. With no support from her husband
and no other option left, Mrs. Beena, on behalf of Phoolchand, filed a writ petition
under Article 32 of the Constitution of Artara, before the Hon’ble Supreme Court
MEMORIAL ON BEHALF OF THE RESPONDENT

stating that the Central Government and the Government of Wasseypur were
obligated under Article 21 of the Constitution and Directive Principles of State
Policies to provide totally free treatment to the petitioner and like patients.

ISSUES RAISED

[ISSUE 1] Whether the ex parte order of the Principal Judge, Family Court, Dhelapur is
liable to be set aside.

[ISSUE 2] Whether the decision of the National Disease Tribunal denying the liability of
Doctor Murli Prasad and Creach Bandy Hospital for the violation of section 9 of HIV AIDS
Act, 2017, is liable to be set aside.

[ISSUE 3] Whether the NCDRC order revising the decision of the SCDRC of holding the
Durga Charitable Blood Bank and Dr. Ramadhir Singh liable for deficiency in service and
medical negligence liable to be set aside.

[ISSUE 4] Whether the Central and State Government’s refusal to free treatment of a
minor suffering from a rare disease, where the parent of the child cannot afford the treatment
is in violation of Article 21 of the Constitution of Artara.
MEMORIAL ON BEHALF OF THE RESPONDENT

SUMMARY OF ARGUMENTS

1. THE EX PARTE ORDER OF THE PRINCIPAL JUDGE OF THE FAMILY

COURT, SHOULD NOT BE SET ASIDE.

It is humbly submitted before the hon’ble Supreme Court of Artara that the ex
parte order of the Principal Judge of the Family Court of Dhelapur should be
upheld

2. THE DESCISION OF THE NATIONAL DISEASE TRIBUNAL DENYING

THE LIABILITY OF DOCTOR MURLI PRASAD AND CREACH BANDY
HOSPITAL FOR THE VIOLATION OF SECTION 9 OF HIV AIDS ACT,
2017, SHOULD BE UPHELD.

It is humbly submitted before the hon’ble Supreme Court of Artara that the
decision of the National Disease Tribunal denying the liability of Doctor Murli
Prasad and Creach Bandy Hospital should be upheld as right to life of the spouse
will prevail over the right to privacy of the party and the disclosure was lawfully
made in consonance with the Section 9 of the Human Immuno Deficiency Virus
and Acquired Immune Deficiency Syndrome (prevention and control) act, 2017.
Other than that the husband exercised legal right given under the Section 13(1)(v)
of Hindu Marriage Act, 1955, in a lawful manner.

3. THE NCDRC ORDER REVISING THE DECISION OF THE SCDRC OF

HOLDING THE DURGA CHARITABLE BLOOD BANK AND DR.
RAMADHIR SINGH LIABLE FOR DEFICIENCY IN SERVICE AND
MEDICAL NEGLIGENCE SHOULD BE UPHELD.
MEMORIAL ON BEHALF OF THE RESPONDENT

It is humbly submitted before the hon’ble Supreme Court of Artara that the
NCDRC order revising the decision of the SCDRC of holding the Durga Charitable
Blood Bank and Dr. Ramadhir Singh should be upheld, as there was a necessity of
blood transfusion and the consent had been already taken by the husband and no other
consent was required.

4. THE CENTRAL AND STATE GOVERNMENT’S REFUSAL TO FREE

TREATMENT OF A MINOR SUFFERING FROM A RARE DISEASE,
WHERE THE PARENT OF THE CHILD CANNOT AFFORD THE
TREATMENT IS NOT IN VIOLATION OF ARTICLE 21 OF THE
CONSTITUTION OF ARTARA.

It is humbly submitted before the hon’ble Supreme Court of Artara that the
Union of Artara and the State of Wasseypur have not infringed the Right to Life,
provided under the Article 21 of the Constitution of Artara, of the petitioner As for a
developing country like Artara with a population of 1.28 billion people, it would not
be feasible to use resources on one individual and ensure equality among the citizens.
Furthermore, it has been held by court that, Policy Decisions of the State are not to be
disturbed/interfered with unless they are found to be grossly arbitrary or irrational.
MEMORIAL ON BEHALF OF THE RESPONDENT
MEMORIAL ON BEHALF OF THE RESPONDENT

ARGUMENTS ADVANCED

I. THE EX PARTE ORDER OF THE PRINCIPAL JUDGE OF THE FAMILY

COURT, SHOULD NOT BE SET ASIDE.
It is humbly submitted before the hon’ble Supreme Court of Artara that the ex
parte order of the Principal Judge of the Family Court of Dhelapur should be
upheld

I.1 THE SPECIAL LEAVE PETITION IS NOT MAINTAINABLE.

It is humbly submitted before the hon’ble Supreme Court of Artara
that the Special Leave Petition filed by the petitioner, in order to set aside
the ex parte order of the Principal Judge of the Family Court of Dhelapur
is not maintainable and should be dismissed by the hon’ble court. The
Constitution of Artara under Article 136 vests the Supreme Court of
Artara, the apex court of the country, with a special power to grant special
leave, to appeal against any judgment or order or decree in any matter or
cause, passed or made by any Court/tribunal in the territory of India. It is
to be used in case any substantial constitutional question of law is
involved, or gross injustice has been done.1

In the case of Kunhayammed v. State of Kerala2, it was held by the

hon’ble court that, “while hearing the petition for special leave to appeal,
this court is called to see whether petitioner should be granted such a
leave or not.”

In the case of Pritam Singh v. The State3, it has been held by the
hon’ble court that, “special leave will not be granted unless special and
exceptional circumstances exist and / or grave injustice has been
committed.”

1
Constitution of Artara. art. 136.
2
Kunhayammed v. State of Kerala, (2000) 245 ITR 360 (SC).
3
Pritam Singh v. The State, AIR 1950 SC 169.
MEMORIAL ON BEHALF OF THE RESPONDENT

However, in the present case, there isn’t any question of law

involved as the law regarding the ex parte judgements have been well
defined in the Order IX Rule 13 of the Code of Civil Procedure, 1908.
Which state two conditions when an ex parte can be set aside, when the
summons was not duly served, or when the defendant was prevented by
enough cause from appearing when the case was called on for hearing4.

Other than that, it is also well defined that an application under the
Order IX Rule 13 of the Code of Civil Procedure, 1908 must be in
accordance with the bounds of Article 164 of the Limitation Act 1963 5 be
made within 30 days of the decree. Hence, in the present case, there isn’t
any question of law involved, therefore the Special Leave Petition should
not be granted.

I.2 THE EX PARTE ORDER CANNOT BE SET ASIDE ON THE

GROUNDS OF INORDINATE DELAY.

It is humbly submitted before the hon’ble Supreme Court of

Artara that an application under the Order IX Rule 13 of the Code of Civil
Procedure, 1908 must be in accordance with the bounds of Article 164 of
the Limitation Act, 19086 be made within 30 days of the decree. However,
in the present case, there has been a gap of 3 months between the decree
passed by the Family Court and the application filed by the petitioner to
set aside the ex parte order.

In the case, Mst. Kiran Devi vs Abdul Wahid And Anr7, it was held
by the hon’ble that, “the Article 164 applies to an application by a
defendant for an order to set aside a decree passed ex parte. The 30 days'
period of limitation prescribed for such an application commences from
the date of the decree or where the summons was not duly served, when
the applicant had knowledge of the decree.”

4
Code of Civil Procedure § 9, § 13 (1908).
5
The Limitation Act § 164, (1963).
6
Id.
7
Mst. Kiran Devi v. Abdul Wahid And Anr, AIR 1966 All 105.
MEMORIAL ON BEHALF OF THE RESPONDENT

In the case of , Pannalal v. Murarilal8, the court observed that

Under art. 164 of the Indian Limitation Act, 1908, the period of limitation
for an application by a defendant for an order to set aside a decree passed
ex-parte was 30 days from "the date of the decree or when the summons
was not duly served, when the applicant had knowledge, of the decree"

In the present case, there has been a gap of 3 months between the
decree passed by the Family Court and the application filed by the
petitioner to set aside the ex parte order, hence it is not liable to be set
aside on the grounds of inordinate delay.

I.3 THE CAUSE OF NON-APPEARANCE IS INSUFFIEICIENT.

It is humbly submitted before hon’ble SC of Artara, the Order IX

Rule 13 of the Code of Civil Procedure, 1908. Which state two conditions
when an ex parte can be set aside, when the summons is not duly served,
or when the defendant was prevented by enough cause from appearing
when the case was called on for hearing.

In the case of, Improvement Trust, Ludhiana v. Ujagar Singh and

others9, it was observed that in case of delay or condonation of delay each
case must be weighed from its facts and the circumstances in which the
party acts and behaves.

According to Order IX Rule 13 of the Code of Civil Procedure,

1908, Where enough cause is shown, the decree shall have to be set aside,
and the term enough cause means beyond the control of a party and cannot
include cases of extreme negligence. In the present case these has been no
observation stating false information or misleading on part of the advocate
that could have led to the petitioner believing that the case was in court.
The circumstances were not beyond the control of the petitioner and yet a
delay of 3 months shows negligence on part of the petitioner. The ex parte
order was given in the case of maintenance after divorce and the petitioner
8
Pannalal v. Murarilal, 1967 AIR 1384.
9
Improvement Trust, Ludhiana v. Ujagar Singh and others, 2010 (6) SCC 786.
MEMORIAL ON BEHALF OF THE RESPONDENT

is involved in multiple lawsuits regarding medical negligence and medical

expenses of her new-born child. Considering the circumstances in the
current case the delay of 3 months can be considered an unreasonably long
duration of time. Moreover, the plaintiff is a well-educated working
woman, the delay of 3 months on her part is grave negligence.
MEMORIAL ON BEHALF OF THE RESPONDENT

II. THE DESCISION OF THE NATIONAL DISEASE TRIBUNAL DENYING

THE LIABILITY OF DOCTOR MURLI PRASAD AND CREACH BANDY
HOSPITAL FOR THE VIOLATION OF SECTION 9 OF HIV AIDS ACT,
2017, SHOULD BE UPHELD.
It is humbly submitted before the hon’ble Supreme Court of Artara that the
decision of the National Disease Tribunal denying the liability of Doctor Murli
Prasad and Creach Bandy Hospital should be upheld as right to life of the spouse
will prevail over the right to privacy of the party and the disclosure was lawfully
made in consonance with the Section 9 of the Human Immuno Deficiency Virus
and Acquired Immune Deficiency Syndrome (prevention and control) act, 2017. 10
Other than that the husband exercised legal right given under the Section 13(1)(v)
of Hindu Marriage Act, 1955, in a lawful manner.

1.1 RIGHT TO LIFE OF THE SPOUSE WILL PREVAIL OVER THE

RIGHT TO PRIVACY OF THE PARTY.
Right of the husband to a healthy life as enshrined under Article 21
will prevail over the Right to privacy of the party which means ‘right to be
let alone’. The husbands right to life should be protected over the Right to
Privacy of HIV patient. Because the right which is more towards public
interest should prevail.

In the case, Mr. X v Hospital Z 11, The court favoured the right which
was more towards public interest. The spouses right to life should be
protected over the Right to Privacy of an HIV patient. The court, hence,
held that the doctor had done no wrong in disclosing the HIV positive
status.

Similarly, in the present case, the doctor and the Murali Prasad and
Creach Bandy Hospital, revealed the HIV status of the petitioner, to her
spouse, in order to safeguard the Right to Life of her spouse, enshrined in
the Constitution of Artara.

10
The Human Immuno Deficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control)
Act § 9, (2017).
11
Mr. X v Hospital Z, (1998) 8 SCC 296.
MEMORIAL ON BEHALF OF THE RESPONDENT

1.2 THE HUSBAND EXERCISED LEGAL RIGHT IN A LAWFUL

MANNER.
The spouse of the petitioner exercised his legal right given under
the Section 13(1)(v) in The Hindu Marriage Act, 1955, rather than
unlawfully deserting or abandoning the petitioner. The Section 13(1)(v) in
The Hindu Marriage Act, 1955 states that, “it is a ground for divorce if a
disease is communicable by nature irrespective of the period for which the
respondent has been suffering from it. The ground is made out, if it is
shown that the disease is in communicable form and it is not necessary that
it should have been communicated to the spouse.”12

In the case, P. Ravikumar v. Malarvizhi13, 2013 SCC OnLine Mad

1345, para 15, it was held by the hon'ble court vulnerable disease and
HIV-positive can be considered as same condition while granting divorce
to a man whose wife was HIV positive.

In the case Sunil Lakhotia v. Pratima Lakhotia 14, 2008 SCC

OnLine Bom 1054, para 12, it was held by the hon'ble court that, “the
infection of HIV virus is chiefly transmitted sexually. The other means of
transmission are less common. Merely because there are other means of
transmission, it is not possible to restrict the meaning of “venereal disease”
and omit infection of HIV virus therefrom. In all the above circumstances,
infection of HIV virus leading to AIDS is covered by ground of divorce at
section 13(1)(v) of The Hindu Marriage Act 1955.”

Similarly, in the present case the, the spouse of the petitioner has
exercised his legal right lawfully and did not abandon the petitioner, the
family court granted divorce according to the provisions of law which is
contrary to the claim of the petitioner, which says, “This led to her divorce
and a mental injury was caused to her as well as her child in the form of
abandonment.”15

12
The Hindu Marriage Act § 13, § 1, § v, (1955).
13
P. Ravikumar v. Malarvizhi,, 2013 SCC OnLine Mad 1345, 15.
14
Sunil Lakhotia v. Pratima Lakhotia, 2008 SCC OnLine Bom 1054, 12.
15
Moot Proposition ¶6
MEMORIAL ON BEHALF OF THE RESPONDENT

1.3 THE DISCLOSURE WAS LAWFULLY MADE IN CONSONANCE

WITH THE SECTION 9 OF THE HUMAN IMMUNO
DEFICIENCY VIRUS AND ACQUIRED IMMUNE DEFICIENCY
SYNDROME (PREVENTION AND CONTROL) ACT, 2017.
It is humbly submitted before the hon’ble SC of Artara that,
although the disclosure of HIV status caused mental trauma to the
petitioner, however the disclosure made by the doctor, complying with all
the provisions of the given act, for the greater good of the society and to
safeguard the spouse of the petitioner from the disease. The doctor had a
reasonable apprehension that the petitioner won’t disclose the HIV
positive status to her spouse as he deliberately asked the doctor to not tell
her spouse regarding her HIV status, therefore the doctor complied with
the Rule 1(c) of section 9 of the Human Immuno Deficiency Virus and
Acquired Immune Deficiency Syndrome (prevention and control) act,
2017, which states that, “A healthcare provider, who is a physician or
counsellor, may disclose the HIV positive status of a person under his
direct care to his or her partner, if such healthcare provider is satisfied
that the HIV-positive person will not inform such partner” 16 Although the
disclosure caused mental agony to the petitioner, it was made in good faith
for the greater benefit of the spouse of the petitioner.

In the case, Mr. X v. Hospital Z17, it was held by the court that,
“Disclosure of even true private facts has the tendency to disturb a
person's tranquillity. It may generate many complexes in him and may
even lead to psychological problems. He may, thereafter, have a disturbed
life all through. In the face of these potentialities, and as already held by
this Court in its various decisions referred to above, the right of privacy is
an essential component of the right to life envisaged by Article 21. The
right, however, is not absolute and may be lawfully restricted for the
prevention of crime, disorder or protection of health or morals or
protection of rights and freedom of others.”

16
The Human Immuno Deficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control)
Act § 9, § 1, § c, (2017).
17
Mr. X v. Hospital Z. (1998) 8 SCC 296.
MEMORIAL ON BEHALF OF THE RESPONDENT

Similarly, In the present case, although the disclosure has caused

mental trauma and agony to the petitioner, it was for the greater good of
her spouse, safeguarding his right to life

Further, owing to the marital relationship, there was a high chance,

of negligent or deliberate sexual transmission of the disease to the spouse.

Sections 269 and 270 of the Indian Penal Code, 1860, spell out
two separate and distinct offences by providing that if a person,
negligently or unlawfully, does an act which he knew was likely to spread
the infection of a disease, dangerous to life, to another person, then, the
former would be guilty of an offence, punishable with imprisonment for
the term indicated therein1819. Therefore, if a person suffering from the
dreadful disease “AIDS”, knowingly or negligently transmits infection to
his/her spouse, he would be guilty of offences indicated in Sections 269
and 270 of the Penal Code, 1860. Similarly, in the present case the above
statutory provisions put an obligation on the petitioner to disclose the HIV
status to her spouse as soon as possible, owing to the chances of negligent
or deliberate sexual transmission of the disease to the spouse. The doctor,
on apprehension of non-communication of the HIV status to the spouse by
the petitioner, disclosed it to her spouse.

18
Indian Penal Code § 269, (1860).
19
Indian Penal Code § 270, (1860).
MEMORIAL ON BEHALF OF THE RESPONDENT

III. THE NCDRC ORDER REVISING THE DECISION OF THE SCDRC OF

HOLDING THE DURGA CHARITABLE BLOOD BANK AND DR.
RAMADHIR SINGH LIABLE FOR DEFICIENCY IN SERVICE AND
MEDICAL NEGLIGENCE SHOULD BE UPHELD.

Arguments from the side of Dr. Ramadhir Singh

It is humbly submitted before the hon’ble Supreme Court of Artara that the
NCDRC order revising the decision of the SCDRC of holding the Durga
Charitable Blood Bank and Dr. Ramadhir Singh should be upheld, as there was a
necessity of blood transfusion and the consent had been already taken by the
husband and no other consent was required.

III.1 CONSENT ALREADY TAKEN FROM THE HUSBAND.

In the, Indian Medical Council (Professional Conduct, Etiquette and
Ethics) Regulations, 2002 or Code of Medical Ethics Regulation, 2002 made
under Indian Medical Council Act, 1956, it has been stated that, “Performing
an operation without taking the consent or acceptance in writing from the
spouse, parent or guardian in the case of a minor, or the patient himself as the
case may be, constitutes misconduct”2021

However, in the present case the consent had been taken by the spouse
of the petitioner. Therefore, the respondent is not to be penalized for not
taking the consent.

In the case, C A Muthu Krishnan v. M. Rajyalakshmi 22, the hon’ble

court held that, “regarding proxy consent, when the patient is unable to give
consent himself, there are no clear regulations or principles developed in
India. If such a situation exists, the medical practitioner may proceed with
treatment by taking the consent of any relative of the patient or even an
attendant. In one case, the wife of a patient informed the hospital authorities
in unambiguous terms that she had no objection to her husband undergoing

20
Code of Medical Ethics Regulation, (2002).
21
Indian Medical Council Act, (1956).
22
C A Muthu Krishnan v. M. Rajyalakshmi, AIR 1999 AP 311.
MEMORIAL ON BEHALF OF THE RESPONDENT

bypass surgery, her consent was deemed sufficient for the purpose of any
formalities with which the hospital was required to comply.”

Similarly, in the present case, the consent of the spouse would be

sufficing to carry forward the operation as the petition wasn’t in the state to
give consent.

“Due to excessive blood loss, Mrs. Beena’s blood pressure started to

drop severely and the doctor had to take critical decisions in such pressing
situation.”23

In the case, Samera Kohli v. Dr. Prabha Manchanda and Another.24

The hon’ble court observed that “where a surgeon is consulted by a patient
and consent of the patient is taken for diagnostic procedure/surgery, such
consent can't be considered as authorization or permission to perform
therapeutic surgery either conservative or radical (except in a life-threatening
emergent situation)”
Similarly, in the present case there was life threatening and
pressing situation faced the doctor. The consent factor may be important very
often in cases of selective operations, which may not be imminently necessary
to save the patient's life. But there can be instances where a surgeon is not
expected to say that ‘I did not operate on him because, I did not get his
consent’. Such cases very often include emergency operations where a doctor
cannot wait for the consent of his patient or where the patient is not in a fit
state of mind to give or not to give a conscious answer regarding consent.

III.2 THE BLOOD TRANSFUSION DONE IN GOOD FAITH, OWING

TO THE NEED OF THE HOUR

23
Moot Proposition ¶3.
24
Samera Kohli v. Dr. Prabha Manchanda and Another., 2008:(1) SCALE 442.
MEMORIAL ON BEHALF OF THE RESPONDENT

It has been stated that blood transfusion was essential to the save
the life of Mrs. Beena and the doctor performed his duty owing to the
emergency.

In the case, Paschim Banga Khet Mazdoor Samity and Ors v. State
of West Bengal and Another25, the court held that, “every doctor whether
at a Government hospital or otherwise has the professional obligation to
extend his services with due expertise for protecting life. No law or state
action can intervene to avoid or delay the discharge of the paramount
obligation cast upon members of the medical profession. The obligation of
a doctor is total, absolute, and paramount. Laws of procedure whether in
statutes or otherwise that would interfere with the discharge of this
obligation cannot be sustained and must, therefore, give way.”

In the case of TT Thomas (Dr.) v. Elisa 26, the court held that, “the
consent factor may be important very often in cases of selective
operations, which may not be imminently necessary to save the patient's
life. But there can be instances where a surgeon is not expected to say that
‘I did not operate on him because, I did not get his consent’. Such cases
very often include emergency operations where a doctor cannot wait for
the consent of his patient or where the patient is not in a fit state of mind
to give or not to give a conscious answer regarding consent.”

Additionally, the blood bags brought by Mr. Tripathi came with a

certificate stating them fit for transfusion. Mr. Tripathi also mentioned that
he might have rubbed off the labels while bringing them to the hospital
causing apprehension that the blood was fit for usage and due to
emergency doctor went ahead with the procedure without any delay in
testing due to the emergency situation prevailing and the critical situation
the petitioner.

Arguments from the side of the Blood Bank

25
Paschim Banga Khet Mazdoor Samity and Ors v. State of West Bengal and Another, 1996 4 SCC 37.
26
TT Thomas (Dr.) v. Elisa, AIR 1987 Ker 52.
MEMORIAL ON BEHALF OF THE RESPONDENT

III.3 DURGA CHARITABLE BLOOD BANK IS NOT LIABLE FOR

DEFICIENCY IN SERVICE

It is humbly submitted before the hon’ble Supreme Court of Artara that the
Durga Charitable Blood bank is not LIABLE for Deficiency in Service as there
was no negligence on the part of blood bank in performing their duty and the
blood bags that were provided from the bank were suitable for blood transfusion.

The counsel would like to state that there was no deficiency in service on
the part of the Durga Charitable Blood Bag as that was handed over to Mr.
Tripathi was also handed over with a certificate that signified that the blood was
suitable for transfusion. The counsel would also like to state that the label was
provided with the blood bag and it was rubbed of by Mr. Tripathi when he carried
them.

As the respondent have taken all the reasonable care mentioned and
handed over a properly labelled blood bag to the Mr. Tripathi with a certificate
defining it suitability of the blood for the blood transfusion.

The counsel would like to state that it that the petitioner might have been
infected by any other means and blood bank is being held liable for that as the
most common ways of getting infected with HIV are improper sterilization of
equipment in an operation including caesarean, infected needles, scalpels,
tattooing equipment, etc. can also transmit HIV and most prominent route of the
transmission is through unprotected intercourse with an infected partner. And
paternity test should be done for the same. And through breastfeeding the disease
must have been transferred from the other to her son, Phoolchand.

Therefore, the counsel humbly submits that there was reasonable care
taken on the part of the Durga Charitable Blood Bank, as the Blood which was
provided from the bag was suitable enough for transfusion and was free from HIV
virus and the Durga charitable blood bank is not LIABLE for deficiency in
service.
MEMORIAL ON BEHALF OF THE RESPONDENT

III.4 THE BLOOD BANK IS NOT LIABLE BECAUSE OF THE WINDOW

PERIOD IN ELISA TEST.

It is humbly submitted before the hon’ble Supreme Court of Artara that

the Durga Charitable Blood bank is not liable for the transmission of AIDS as
there is a window period in the ELISA test done for the HIV AIDS. The Elisa
tests HIV by the formation of anti-bodies in blood, however it can take around
3 months for the anti-bodies to form, hence there is always a risk of cantacting
AIDS in blood transfusion.
MEMORIAL ON BEHALF OF THE RESPONDENT

IV. THE CENTRAL AND STATE GOVERNMENT’S REFUSAL TO FREE

TREATMENT OF A MINOR SUFFERING FROM A RARE DISEASE,
WHERE THE PARENT OF THE CHILD CANNOT AFFORD THE
TREATMENT IS NOT IN VIOLATION OF ARTICLE 21 OF THE
CONSTITUTION OF ARTARA.

It is humbly submitted before the hon’ble Supreme Court of Artara that the
Union of Artara and the State of Wasseypur have not infringed the Right to Life,
provided under the Article 21 of the Constitution of Artara, of the petitioner As
for a developing country like Artara with a population of 1.28 billion people, it
would not be feasible to use resources on one individual and ensure equality
among the citizens. Furthermore, it has been held by court that, Policy Decisions
of the State are not to be disturbed/interfered with unless they are found to be
grossly arbitrary or irrational.

IV.1 THERE HAS BEEN NO VIOLATION OF RIGHT TO LIFE

PROVIDED UNDER THE ARTICLE 21 AND ARTICLE 47 OF THE
CONSTITUTION OF ARTARA.

It is humbly submitted before the hon’ble Supreme Court of Artara

that the Union of Artara and the State of Wasseypur have not infringed the
Right to Life, provided under the Article 21 of the Constitution of Artara 27,
of the petitioner As for a developing country like Artara with a population
of 1.28 billion people, it would not be feasible to use resources on one
individual and ensure equality among the citizens.

In the case of, State of Punjab and ors. v. Ram Lubhaya Bagga 28, it
was held by the hon’ble court that, Right to Health given in the Article 21
of the Constitution of Artara in a developing country like India could not
be so stretched so as to mean to provide free health facilities to a
terminally ill patient while other citizens we're not even provided basic

27
Constitution of Artara. art. 21.
28
State of Punjab and ors. v. Ram Lubhaya Bagga, (1998) 4 SCC 177.
MEMORIAL ON BEHALF OF THE RESPONDENT

health care. State has an equal obligation towards all citizens, and it had to
use its limited resources so as to provide the maximum benefit to the max
number of people. State to provide health care to all people was not an
absolute Fundamental right and was just subject to just exceptions.

In another case, Mohd. Ahmed (Minor) v. Union of India, &

Ors.29, it has been held by the hon’ble court that, “No state of any country
can have unlimited resources to spend on any of its projects. That is why it
only approves its projects to the extent it is feasible. The same goes with
medical facilities to its citizens including its employees. Provisions of
facilities cannot be unlimited. It has to be the extent finances permit.”

Similarly, in the present case the Central Government and the

State Government of Wasseypur have launched the Rashtriya Arogya
Nidhi scheme and the Wasseypur Arogya Kosh, under these schemes in
furtherance with the Directive Principle of State Policy given under the
Article 38 and 47, which guide the government to “Promote the welfare of
the people by securing a social order through justice—social, economic
and political—and to minimise inequalities in income, status, facilities and
opportunities”30 and “it is for the state to secure health to its citizen as its
primary duty”31 respectively.

From these schemes Rs. 2 Lakh and Rs. 6 Lakh, respectively,

were released in favour of the petitioner. However, the release of more
funds by the government was not feasible, owing to the financial
constraints on the side of the government. 32 And As for a developing
country like Artara with a population of 1.28 billion people, it would not
be feasible to use resources on one individual and ensure equality among
the citizens

29
Mohd. Ahmed (Minor) vs Union of India, & Ors., 2014 SCC OnLine Del 1508.
30
Constitution of Artara. art. 38.
31
Constitution of Artara. art. 47.
32
Moot Proposition ¶11.
MEMORIAL ON BEHALF OF THE RESPONDENT

IV.2 POLICY DECISIONS OF THE STATE ARE NOT TO BE

DISTURBED/INTERFERED BY THE COURT OF LAW UNLESS
THEY ARE FOUND TO BE GROSSLY ARBITRARY OR
IRRATIONAL.

It is humbly submitted before the hon’ble Supreme Court of Artara that

Constitution of Artara is based on the basic principle of separation of powers,
though there is some overlapping. There are mainly three wings of the State,
namely, Legislature, Executive and Judiciary. Each wing of the State has the
power to act in its own sphere of activity. Legislature is to make laws.
Executive is to make policies (subject to law), implement them, and run the
administration. Judiciary is to apply laws, interpret laws, and to decide
disputes and deliver justice.33

This is only a basic description of their activities. Therefore, making

policies and executing them comes within the sphere of activities of the
Executive. It is not within the power of the Judiciary. Moreover, the Judiciary
does not have the expertise and the domain knowledge to make policies or to
amend them. On the other hand, the Executive has experts, professionals,
administrators, advisors, etc., in a given field and has the expertise to make
policies after taking into consideration all aspects of a matter.

In the case, State of Punjab & Ors. v. Ram Lubhaya Bagga & Ors.34,
(it was held by the hon’ble SC that, “When Government forms its policy, it is
based on number of circumstances on facts, law including constraints based on
its resources. It is also based on expert opinion. It would be dangerous if Court
is asked to test the utility, beneficial effect of the policy or its appraisal based
on facts set out in affidavits. The Court would dissuade itself from entering
into this realm which belongs to the executive.”

33
Dinesh Singh Chauhan, Policy Decisions of the State are not to be disturbed/interfered with unless they are
found to be grossly arbitrary or irrational, Legal Services India E-Journal(Jan, 2021, 5:00 PM),
http://www.legalserviceindia.com/legal/article-1442-policy-decisions-of-the-state-are-not-to-be-disturbed-
interfered-with-unless-they-are-found-to-be-grossly-arbitrary-or-irrational.html.
34
State of Punjab & Ors. v. Ram Lubhaya Bagga & Ors., (1998) 4 SCC 117.
MEMORIAL ON BEHALF OF THE RESPONDENT

In the case, Balco Employees Union (Regd.) v. Union of India & Ors.35,
it was held by the hon’ble court that, “it is the prerogative of each elected
Government to follow its own policy. Often a change in Government may
result in the shift in focus or change in economic policies. Any such change
may result in adversely affecting some vested interests. Unless any illegality is
committed in the execution of the policy or the same is contrary to law or
mala fide, a decision bringing about change cannot per se be interfered with
by the Court.”

35
Balco Employees Union (Regd.) v. Union of India & Ors, (2002) 2 SCC 333, 92.
MEMORIAL ON BEHALF OF THE RESPONDENT
MEMORIAL ON BEHALF OF THE RESPONDENT

PRAYER

Therefore, in the light of the facts of the case, issues raised, arguments advanced and
authorities cited this Hon’ble court may be pleased to adjudge and declare that:

In the case of Beena Tripathi v Akhandanand Tripathi:

The ex parte order of the Principal Judge, Family Court, Dhelapur is not liable to be set aside
on the ground of negligence of the advocate and innocence of the party.

In the case of Beena Tripathi v Creach Bandy Hospital, Wasseypur & Dr. Murli Prasad

The decision of the National Disease Tribunal denying the liability of Doctor Murli Prasad
and Creach Bandy Hospital for the violation of section 9 of HIV AIDS Act, 2017, is not
liable to be set aside.

In the case of Beena Tripathi v Durga Charitable Blood Bank & Dr. Ramadhir Singh:

The NCDRC order reversing the decision of the SCDRC of holding the Durga Charitable
Blood Bank and Dr. Ramadhir Singh liable for deficiency in service and medical negligence
is not liable to be set aside.

In the case of Beena Tripathi v Union of Artara & State of Wasseypur:

The Central and State Government’s refusal to free treatment of a minor suffering from a rare
disease, where the parent of the child cannot afford the treatment is not in violation of the
Article 21 of the Constitution of Artara.

And may pass any other order in favour of the Petitioner that it may deem fit in the interest of
justice, equity and good conscience.

SD/-

Counsel for Respondent