BEFORE THE HON’BLE SUPREME COURT

W.P. NO. /2024

(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDICA)

IN THE MATTER OF

AMANDA …PETITIONER

VS

UNION OF INDIA …RESPONDENT

HUMBLY SUBMITTED BEFORE THIS HON’BLE SUPREME COURT

COUNSEL FOR THE PETITIONER

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TABLE OF CONTENTS

INDEX OF AUTHORITIES.................................................................................................3

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

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

STATEMENT OF ISSUES....................................................................................................8

SUMMARY OF ARGUMENTS.............................................................................................9

ARGUMENTS ADVANCED…...........................................................................................10

1. WHETHER IS THERE ANY VIOLATION OF FUNDAMENTAL RIGHT OF A

PERSON TO LIFE UNDER ARTICLE 21 OF THE CONSTITUTION OF INDICA?10
2. WHETHER THE CHALLENGING OF CONSTITUTIONAL VALIDITY OF SECTION
3(2) OF THE MEDICAL TERMINATION OF PREGNANCY ACT, 1971 IS
JUSTIFIABLE?.........................................................................................................…..13
3. WHETHER THAT THE MTP ACT VIOLATES THE RIGHT TO LIFE OF AN
UNBORNCHILD?.........................................................................................................15
PRAYER......................................................................................................................................16

MEMORIAL ON BEHALF OF THE PETITIONER

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INDEX OF AUTHORITIES

STATUTES:

1) Criminal Procedure, 1973 (Act No. 2 of 1974)2)

2) The Indian Evidence Act, 1872 (Act no. 1 of 1872)3)
3) The Medical Termination Of Pregnancy Act, 1971. (Act No. 34 of 1971)4)
4) The Indian Penal Code. (45 of 1860)5)
5) Transfer of Property Act, 1882

BOOKS:

1) Black’s Law Dictionary

2) Basu, D., Lakshmanan, A., Manohar, V., Banerjee, B. and Khan, S. (2009).Shorter constitution
of India
3) Penal law of India, Dr Sir Hari Singh Gour, 11th Edition.
4) Law and Medicine, Dr Lily Srivastava, 2nd Edition.
5) Dagmar K. Kalousek and Naomi Fitch, Pathology of the Human Embryo and Previable Fetus, 1 st
Edition.
6) Amar Jesani, and Aditi Iyer, "Women and Abortion", 27 Economic and Political Weekly (1993)
7) P.M. Bakshi and Gunjan Shah – Abortion social ethical and legal issues monograh Vol. 1 page
117 Tilem – NLSIU Bangalore
8) Shaw S.P., Encyclopedia of Laws of Child in India, 2nd Edition.
9) Grabowski Andrzej, Juristic Concept of the Validity of Statutory Law 2nd Edition.
10) Centers for Disease Control (CDC), Abortion Surveillance, Annual Summary, 1969.

WEBSITES:

 www.scconline.com

 www.heinonline.com

 www.manupatra.com

MEMORIAL ON BEHALF OF THE PETITIONER

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 www.indiankanoon.com

 www.casemine.com

CASES:

 Queen Empress V Ademmia, 1886 ILR 9 MAD 360.

 Maneka Gandhi vs Union Of India AIR 1978 SC 597
 Francis Coralie v. Union Territory of Delhi AIR 1981 SC 746
 Bandhua Mukti Morcha v. Union of India AIR 1984 SC 802
 R v. State of Haryana Writ Petition (Civil) No. 6733 of 2016
 Sarmishtha Chakrabortty v. Union of India Writ Petition (Civil) No. 431 of 2017
 State of Punjab v. Mohinder Singh Chawla (1997) 2 SCC 83
 High Court On Its Own Motion vs The State Of Maharashtra PIL No. 1 OF 2016
 K S Puttaswamy v Union of India Writ Petition (Civil) No 494 of 2012
 High Court On Its Own Motion vs The State Of Maharashtra PIL No. 1 OF 2016
 Ms. Z v. The State of Bihar and Others Civil Appeal No. 10463 of 2017
 Mrs. X and Ors. v. Union of India Writ Petition (Civil) 81 of 2017
 Roe v. Wade 410 U.S. 113
 Mamta Verma v. Union of India and Ors., Writ Petition (Civil) 627 of 2017
 Bandhua Mukti Morcha v. Union of India AIR 1984 SC 802
 State of Punjab v. Mohinder Singh Chawla (1997) 2 SCC 83
 Priti Mahendra Singh Rawal vs Union of India And Ors Writ Petition no. 11940 OF 2017
 Meera Santosh Pal and Others v Union of India and Others Writ Petition (Civil) No.17 of
2017

MEMORIAL ON BEHALF OF THE PETITIONER

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STATEMENT OF JURISDICTION

The Counsel on behalf of the Petitioner humbly submits this memorandum before this honorable
Supreme court. The petition invokes its write jurisdiction under article 32 of the constitution of
India. It sets forth the facts and the laws on which the claims are based.

MEMORIAL ON BEHALF OF THE PETITIONER

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STATEMENT OF FACTS

1. Indica is a democratic country situated in south east of Asia. The current population
stands at approximately 1.43 billion people as of 2023 making it the second most populous country
in the world. In 2023, the sex ratio of the total population in Indica is 106.516 males per 100
females. The country has implemented over the years many progressive gender-based laws and are
continuously evolving to address the changing needs and challenges faced by women and other
marginalized genders.
2. Amanda and Adarsh have been college sweethearts and have been living together since
2019 in the state of Kavalam, a state in the union of Indica. They are both strongly against the
institution of marriage and decided to never get married. After several years of relationship Amanda
became pregnant in November, 2023. Initially they both were excited about the pregnancy and
welcomed the baby. But later in February 2024 Amanda came to know that Adarsh has been
cheating on her with his colleague for the past 3 years. Amanda being heartbroken by this news
decided to part ways with Adarsh. She also decided not to continue with the pregnancy as she does
not want to cherish any memory from the past relationship.
3. On 7th April 2024, Amanda visited Dr. Sharma’s clinic to get an abortion who was her
regular gynaecologist. But on examination, it was found that Amanda was 21 weeks pregnant on
the day and hence she was above the legally permissible period of abortion. Dr. Sharma, thus
declined to provide her any service, but he also being a family friend to Adarsh informed him about
Amanda’s visit.
4. On 11th April 2024, Amanda filed a writ application before the Hon’ble High Court of
Kavalam for granting permission to undergo medical termination of pregnancy. Adarsh, through
some close sources came to know about the petition, approached the High Court with an
intervening application. During the proceedings, Adarsh opposed to the abortion request claiming
to be the biological father and ready to accept all responsibilities of the mother and child. This was
objected by Amanda who stood by abortion on the ground that child birth in this case could cause
grave injury to her mental health as she did not want to parent the child of an unfaithful man who
has completely broken her trust. The single judge bench of the High Court dismissed the petition
saying that the petitioner did not satisfy any grounds provided in the Medical Termination of
Pregnancy Act, 1971.

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5. The petitioner on 17th April 2024, appealed against the dismissal order passed before the
Division Bench. The Division Bench while upholding the dismissal order made the following
statement about the appellant:

“Motherhood is an integral part of a woman’s existence. The unborn in this case was conceived out
of a consensual relationship between the major parents who belong to the educated and elite class
of society. The case of the appellant doesn’t cover under any mental health issues as she is not a
victim of sexual abuse. The foetus’s right to be born cannot be taken away by the mother merely on
her desires. In the instant case the alleged father of the unborn is ready to accept the responsibility
of the mother and child and more importantly as rightly pointed out by the learned judge, this case
doesn’t come under the ambit of the legal exception recognized under the Medical Termination of
Pregnancy Act, 1971. Hence the appeal is dismissed.”
6. Amanda, aggrieved by this order preferred a Writ petition before the Hon’ble Supreme
Court of Indica on 27 April, 2024 seeking termination of pregnancy as well as challenging the
provisions of MTP Act as violative of the fundamental right of women to make reproductive
choices and to declare right to abortion a fundamental right.

Note: The Laws of Indica are pari materia to the laws of India.

MEMORIAL ON BEHALF OF THE PETITIONER

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STATEMENT OF ISSUE

ISSUE 1:

WHETHER IS THERE ANY VIOLATION OF FUNDAMENTAL RIGHT OF A PERSON

TO LIFE UNDER ARTICLE 21 OF THE CONSTITUTION OF INDICA?

ISSUE 2:

WHETHER THE CHALLENGING OF CONSTITUTIONAL VALIDITY OF SECTION

3(2) OF THE MEDICAL TERMINATION OF PREGNANCY ACT, 1971 IS JUSTIFIABLE?

ISSUE 3:

WHETHER THAT THE MTP ACT VIOLATES THE RIGHT TO LIFE OF AN

UNBORNCHILD?

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SUMMARY OF ARGUMENTS

1. WHETHER IS THERE ANY VIOLATION OF FUNDAMENTAL RIGHT OF A

PERSON TO LIFE UNDER ARTICLE 21 OF THE CONSTITUTION OF
INDICA?

The MTP Act is violates of Articles 14 and 21 of the Indian Constitution. It is

unconstitutional on four grounds: a) It violates Right to live with Human Dignity- it puts
unreasonable restrictions on the woman; b) It violates Right to Health- the physical and mental
health of the woman is grossly affected; c) It violates Right to Privacy and Personal Liberty-
Article 21 of the woman is violated; d) It does not take into consideration the modern
advancements in technology.

2. WHETHER THE CHALLENGING OF CONSTITUTIONAL

VALIDITY OF SECTION 3(2) OF THE MEDICAL
TERMINATION OF PREGNANCY ACT, 1971 IS JUSTIFIABLE?

The prohibition of the termination of the pregnancy violates a woman’s individual right,
right to her life, to her liberty and to the pursuit of her happiness that sanctions her right to have
an abortion. It further would cost Ms. R, her the right to safeguard the privacy of procreation,
motherhood and childbearing. The IPC Sections on miscarriage violates the Right to health of
the woman- both physical and mental. The Penal Code also ignores the plight of women who
get pregnant due to rape as well marital rape. Finally, fetuses with critical health issues aren’t
allowed to be terminated, thus giving them a hard life full of misery.

3. WHETHER THAT THE MTP ACT VIOLATES THE RIGHT TO LIFE OF AN

UNBORNCHILD?.

The State is under obligation under Article 21 not only to protect the life of the unborn
child from arbitrary and unjust destruction but also not to deny it equal protection under article
14 of the Indian constitution. But the MTP violates both the Articles by allowing the
termination of pregnancy in various situations.

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ARGUMENTS ADVANCED

1. WHETHER IS THERE ANY VIOLATION OF FUNDAMENTAL RIGHT OF A

PERSON TO LIFE UNDER ARTICLE 21 OF THE CONSTITUTION OF INDICA?

The MTP Act is unconstitutional on four grounds: a) It violates Right to live with Human Dignity;
b) It violates Right to Health; c) It violates Right to Privacy and Personal Liberty. d) It does not
take into consideration the modern advancements in technology.

IT VIOLATES RIGHT TO LIVE WITH HUMAN DIGNITY :

The Supreme Court, in Maneka Gandhi v. Union of India 1, held that the right to live the right to
live is not merely a physical right but includes within its ambit the right to live with human
dignity. The right was also stressed in Francis Coralie v. Union Territory of Delhi 2 and Bandhua
Mukti Morcha v. Union of India3 as well. The provisions of the MTPA are in conflict with the
right to live with Human Dignity as it puts a ceiling of 20 weeks for abortion, thus affecting the
dignity of the woman. In R v. State of Haryan 4, the High Court held that “It shall be the duty of
every citizen of India to renounce practice derogatory to the dignity of the women.” Also, in
Sarmishtha Chakrabortty v. Union of India 5, the court stated that, “The right of a woman to have
reproductive choice is an integral part of her personal liberty, as envisaged under Article 21 of the
Constitution. She has a sacrosanct right to have her bodily integrity.”

IT VIOLATES RIGHT TO HEALTH:

In State of Punjab v. M.S. Chawla 6, the Supreme Court held that that the Right toHealth
will be included in Article 21 of the Constitution. This is in violation to Article 39(e) of the Indian
Constitution. In R v. State of Haryana, the High Court had held that, “the health and strength of
women is not to be abused.” The MTPA allows the termination of pregnancy after 20 weeks, only
when its immediately necessary to save the life of the pregnant woman.

However, it doesn’t take into consideration the other health (mental or physical) issues of

1
Maneka Gandhi vs Union Of India AIR 1978 SC 597
2
Francis Coralie v. Union Territory of Delhi AIR 1981 SC 746
3
Bandhua Mukti Morcha v. Union of India AIR 1984 SC 802
4
R v. State of Haryana Writ Petition (Civil) No. 6733 of 2016
5
Sarmishtha Chakrabortty v. Union of India Writ Petition (Civil) No. 431 of 2017
6
State of Punjab v. Mohinder Singh Chawla (1997) 2 SCC 83

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the pregnant woman which is at stake due to the pregnancy. Moreover, the court in High Court on
Its Own Motion vs The State of Maharashtra 7 had stated that, “If a woman does not want to
continue with the pregnancy, then forcing her to do so represents a violation of the woman's
bodily integrity and aggravates her mental trauma which would be deleterious to her mental
health.”

IT VIOLATES RIGHT TO PRIVACY AND PERSONAL LIBERTY:

The Justice K.S. Puttaswamy (Retd.) v. Union of India 8 judgment has explicitly recognized
the constitutional right of women to make reproductive choices, as a part of personal liberty under
Article 21 of the Indian Constitution. Sections 3 and 5 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.
Abortions are doctor-centric, with doctors having the ultimate discretion over the woman’s body
and choice, at all stages of her pregnancy.

In High Court on Its Own Motion vs The State Of Maharashtra 9, the Bombay High Court
held that, “The pregnancy takes place within the body of a woman and has profound effects on her
health, mental well-being and life. Thus, how she wants to deal with this pregnancy must be a
decision she and she alone can make. The right to control their own body and fertility and
motherhood choices should be left to the women alone.” In Ms. Z v. The State of Bihar and
Others10, it was held that, “The fundamental concept relating to bodily integrity, personal
autonomy and sovereignty over her body have to be given requisite respect.” Moreover, in Mrs. X
and Ors. v. Union of India11, the Court emphasizes the fact that it is a woman’s right to make
reproductive choices, and that this is part of her “personal liberty as understood under Article 21
of the Constitution,” and stated that “in these circumstances we find that the right of bodily
integrity calls for a permission to allow her to terminate her pregnancy.”

7
High Court On Its Own Motion vs The State Of Maharashtra PIL No. 1 OF 2016
8
K S Puttaswamy v Union of India Writ Petition (Civil) No 494 of 2012
9
High Court On Its Own Motion vs The State Of Maharashtra PIL No. 1 OF 2016
10
Ms. Z v. The State of Bihar and Others Civil Appeal No. 10463 of 2017
11
Mrs. X and Ors. v. Union of India Writ Petition (Civil) 81 of 2017

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The Roe v. Wade12 judgment by the Supreme Court of United States had held that laws
which criminalise all abortions, except those required to save a mother’s life, were
unconstitutional and violated the right to privacy of a pregnant woman.

12
Roe v. Wade 410 U.S. 113

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2.WHETHER THE CHALLENGING OF CONSTITUTIONAL VALIDITY OF

SECTION 3(2) OF THE MEDICAL TERMINATION OF PREGNANCY ACT, 1971 IS
JUSTIFIABLE?

It is a woman’s individual right, right to her life, to her liberty and to the pursuit of her
happiness that sanctions her right to have an abortion. A woman’s reproductive and sexual health
shape her reproductive choices. Reproductive rights are internationally recognized as critical both
to advancing women’s human rights and to promoting development. It can be seen that the forced
to continuation of an unwanted pregnancy would cost her the right to safeguard the privacy of
procreation, motherhood and childbearing as the MTP Act “seems to be making these choices for
her”.
Section 5 of the MTPA13 states that “…shall not apply to the termination of a pregnancy by
the registered medical practitioner in case where he is of opinion, formed in good faith, that the
termination of such pregnancy is immediately necessary to save the life of the pregnant woman.”
The physical and mental health and well-being of the woman is to be treated as part of the
expression 'life'. If any pregnancy is alleged by the pregnant woman to have been caused by sex
crime, the anguish caused by the pregnancy is presumed to constitute a grave injury to the mental
health of the pregnant woman.
In Mamta Verma v. Union of India and Ors. 14, the Court explained, “Importantly, it is
reported that the continuation of pregnancy can pose severe mental injury to the petitioner and no
additional risk to the petitioner’s life is involved if she is allowed to undergo termination of her
pregnancy. In the circumstances, we consider it appropriate in the interests of justice and
particularly, to permit the petitioner to undergo medical termination of her pregnancy under the
provisions of the Medical Termination of Pregnancy Act, 1971.”
Even after the commencement of the MTP Act, the IPC provisions relating to miscarriage
have not been amended, redrafted or repealed (wherever necessary) to take into account the fact
that abortions are now permissible under the MTPA under certain circumstances.
The Constitution incorporates provisions guaranteeing everyone’s right to the highest
attainable standard of physical and mental health. Article 21 of the Constitution guarantees
protection of life and personal liberty to every citizen.15
The Supreme Court has held that the right to live with human dignity, enshrined in Article

13
Section 5, MTP Act
14
Mamta Verma v. Union of India and Ors., Writ Petition (Civil) 627 of 2017
15
Article 21, Constitution of India

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21, derives from the directive principles of state policy and therefore includes protection of health 16.
Further, it has also been held that the right to health is integral to the right to life and the
government has a constitutional obligation to provide health facilities. 17 Section 312 of Indian Penal
Code only allows the woman to terminate her pregnancy only for the purpose to save her life. The
IPC is silent incases of other health issues as well as the mental health of the pregnant woman.
Section 312 of the Indian Penal Code doesn’t allow abortion in humanitarian grounds such
as when pregnancy arises from a sex crime like rape. The problem of a pregnancy caused by rape
may affect the mental health of the mother. It is assumed that the victim mother does not want to
bear the continuing results of a crime for which she was not culpable.
Section 375 of the IPC states that “Sexual intercourse by a man with his own wife, the wife
not being under 15 years of age, is not rape.” 18 Marital rape is a non-consensual act of violent
perversion by a husband against the wife where she is physically and sexually abused.
The woman, under the present rules of IPC, cannot terminate the pregnancy caused by
marital rape, even if she wants to. The existing laws fail to recognize 'woman' as an individual
capable of making her own choices, specifically her sexual choices as a wife and her reproductive
choices when pregnant.
The Indian Penal Code does not allow abortions in cases when it is known before birth that
the child will be born mentally or physically deformed. A lot of health issues in fetus can be
discovered only after a substantial period of time. In Priti Mahendra SinghRawal vs Union of India
And Ors,19 the Supreme Court allowed the abortion of the 25-week-old fetus, which suffered from
various abnormalities, thus preventing the misery the child had to suffer after its birth. Similarly, in
Meera Santosh Pal and Others v Union of India and Others 20, a 24-week-old fetus was aborted on
similar grounds. Thus, in light of the above Court decisions, it can be concluded that the Provisions
in IPC are way outdated and not suited for the current times.

16
Bandhua Mukti Morcha v. Union of India AIR 1984 SC 802
17
State of Punjab v. Mohinder Singh Chawla (1997) 2 SCC 83
18
Section 375, Indian Penal Code
19
Priti Mahendra Singh Rawal vs Union of India And Ors Writ Petition no. 11940 OF 2017
20
Meera Santosh Pal and Others v Union of India and Others Writ Petition (Civil) No.17 of 2017

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3. WHETHER THAT THE MTP ACT VIOLATES THE RIGHT TO LIFE OF AN

UNBORNCHILD?.

A child in its mother's womb is for many purposes regarded by a legal fiction as already
born, in accordance with the maxim, nasciturus pro jam nato habetnr. The most important right
of humans is the right to life. It is the supreme human right. It is inalienable. Implicitly all
conventions recognize the rights of unborn child. Article 1 of the UN Convention on the Rights
of the Child 1989. gives the definition of the age of the child: "For the purpose of the present
Convention, a child means every human being below the age of 18 years unless under the law
applicable to the child, majorities attained earlier." 21 No minimum age is mentioned, thus
interpreting that the unborn child can be considered a ‘child’.
Under the Indian Penal Code, 186022, 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 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.
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 23, the Madras High Court, 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.” 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 separate existence nor to the assumption that
it has no moral or legal significance. Therefore, the state is under obligation under Article 21 not
only to protect the life of the unborn child from arbitrary and unjust destruction but also not to
deny it equal protection under article 14 of the Indian constitution.

21
Article 1, UN Convention on the Rights of the Child 1989
22
Section 312- 318, Indian Penal Code
23
Queen Empress V Ademmia, 1886 ILR 9 MAD 360.

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PRAYER

Wherefore, in light of the issues raised, arguments advanced, and authorities cited, it is humbly
prayed before the Hon’ble Supreme Court to adjudge & declare that:

- There is violation of fundamental right of a person to life under article 21 of the constitution
of Indica.
- The challenging of constitutional validity of section 3(2) of the medical termination of
pregnancy act, 1971 is justifiable.
- The MTP act not violates the right to life of an unborn child.

And for this act of kindness and justice the Petitioner shall be duty bound and forever pray.

All of which is submitted with utmost reverence.

COUNSEL FOR THE PETITIONER

MEMORIAL ON BEHALF OF THE PETITIONER