MEMO

TEAM CODE: 2
MOOT COURT MEMORIAL, 2019, LAW CENTRE IIs
BEFORE THE HONOURABLE SUPREME COURT OF INDIA
SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE

INDIAN CONSTITION
Civil Appeal No. _______/2019
IN THE MATTER OF
NANDINI & OTHERS ………………………………….APPELLANT
V/S
UNION OF INDIA & OTHERS ……………………..RESPONDENT
MEMORIAL ON BEHALF OF APPELLANT

(COUNCELS APPEARING ON BEHALF OF APPELLANT)
1
TABLE OF CONTENTS
CONTENT………………………………………………………………………...PAGE NO.
LIST OF REFERENCES AND CASES ……………………………………………….3-4
ABBREVIATIONS……………………………………………………………………..5
STATEMENT OF JURISDICTION …………………………………………………...6
STATEMENT OF FACTS……………………………………………………………...7-8
STATEMENT OF ISSUES……………………………………………………………..9
SUMMARY OF ARGUMENTS……………………………………………………….10-11
ARGUMENTS ADVANCED…………………………………………………………..12-43
 ISSUE NO. 1…………………………………….........................................12-24

 ISSUE NO. 2………………………………………….……………………25-35
 ISSUE NO .3………………………………………….................................36-37
 ISSUE NO. 4…………………………………………….………………....38-43
PRAYER…………………………………………………………………………….…..44
ANNEXURE 1 ……………………………………………………………………….…45
2
LIST OF REFRENCES AND CASES
1. STATUTES
 The Constitution of India
 Medical Termination of Pregnancy Act,1971
 Medical Termination of Pregnancy (Amendment ) Bill 2014
 Medical Termination of Pregnancy (Amendment) Bill 2017
 Indian Penal Code,1860
 Pre-Conception & Pre-Natal Diagnostic Techniques Act,1994
2. BOOKS REFERRED
 M P Jain ,Indian Constitutional law

 P.S.A. Pillai, Criminal Law
 T.W. Sadler, Langman’s Medical Embryology
 S.G. Kabra, Abortion in India: Myth and Reality
3. WEBSITES REFERRED
 https://indiankanoon.org
 www.manupatra.com
 https://www.livelaw.in
 https://www.legallyindia.com
 https://www.lawctopus.com
 https://papers.ssrn.com/sol3
 https://indianexpress.com/articles
 https://health.economictimes.indiatimes.com
 https://www.downtoearth.org.in
 https://repoductiverights.org
 https://Jlsr.thelawbridge.com
 https://www.advocatekhoj.com
 https://supremejustia.com
3
4. CASE LAW CITED
 Roe vs. Wade .410U.S. 113.Supreme Court of United States.1973

 Planned Parenthood Southern Pennsylvania Vs. Casey (1992) 120 L.Ed 2d 67
 Tapasya Umesh Pisal vs. Union of India (2018)12 SCC 57
 Sonali Kiran Gaikwad vs. Union of India ,Writ Petition (c) No.928 of 2017
 X and ors.vs. Union of India and ors.(2017)3 SCC 458
 Suchita Srivastava vs.ChandigarhAdministration 2009 (9) SCC 1
 A vs. Union of India (2018)14 SCC 75
 Mamta Verma vs. Union of India and ors. (2018) 14 SCC 289
 Sarmishta Chakrabortty and ors. vs. Union of India and ors. (2018) 13 SCC 339
 Z vs. State of Bihar 2018 (11)SCC 572
 Cabell vs. Markham 148 F 2d 737 (2d Cir 1945)
 R(Quintavalle) vs. Secretary of state for Health, 2003 UKHL 13
 Seaford CourtEstates Ltd. vs. Asher (1949) 2 KB 481 (CA)
 Badshah vs.Urmila Badshah Godse (2014) 1 SCC 188
 Sudha Sandeep Devgirkr vs. Union of India, Bom. HC, W.P.(c) -10835of 2018
 Badri Prasad vs. Dy. Director of Consolidation. AIR 1978 Sc 1557
 Tulsa & Ors vs. Durghatiya & Ors (2008) 4 SCC 520
 Maneka Gandhi vs. Union of India (1978) 1 SCC 248
 K.S. Puttaswamy vs. Union of India (2017) 10 SCC 1.
 XVZ vs. Union of India 2019 SCC Bom 550
 Ashaben w/o. Dineshbhai Jasubhai Talsaniya (Devipujak) vs. State of Gujarat,
S.C.A.(Q) 1919 of 2015, H.C. Guj., 16 Apr. 2015.
 Isaacson vs. Horne, 716 F.3d 1213 (9th Cir. 2013).
 R vs. State of Haryana, W.P.(C), 6733 of 2016, H.C. P.& H., 74, 30 May 2017.
 Ayesha Khatoon vs. Union of India W.P. No. 36727 of 2017
 Snehal Ravikant Mohite vs. Union of India –W.P. 10835 of 2018 Bom. HC
 Murugan Nayakkar vs. Union of India & ors.W.P. (c) No. 749/2017
 Swati Aggarwal vs. Union of India – W.P.( c ) 825 / 2019 of Supreme Court of India
 Dr. Nikhil Datar vs. U.O.I. SLP (c) 5334 of 2009 ( Niketa Mehta Case)
 Nand Kishore Sharma and ors. vs. U.O.I. AIR Raj 166 WLC Raj UC 411
 R and ors. vs. State of Haryana & ors .CWP -6733-2016
4
ABBREVIATION
Supreme Court SC
High Court HC
Union of India U.O.I
Medical Termination of Pregnancy Act MTP
Indian Penal Code IPC
Pre-Conception Pre-Natal Diagnostic PCPNDT
Techniques
Honorable Hon’ble
Others ors
Statement of Objects and Reasons S.O.R.
Writ Petition W.P.
Supreme Court Cases SCC
Civil (C)
High Court of Gujarat H.C. Guj.
Civil Writ Petition CWP
And &
Special Leave Petition SLP
Constitution of India COI
5
STATEMENT OF JURISDICTION
1. The Petitioner submits to the jurisdiction of this Hon’ble Court under Article 136 of the
Indian Constitution which allows for the grant of Special Leave Petition by Supreme
Court.
2. The Petitioner submits to the jurisdiction of this Hon’ble Court under Article 133 of
Indian Constitution which allows for the Supreme Court to pass a remand order on the
of High Courts.
3. The jurisdiction of this Hon’ble Court under Article 32 of Indian Constitution is
invoked as there is violation of Article 14 and 21 of Indian Constitution.
6
STATEMENTS OF FACTS
1. Nandini , a pregnant middle class lady , went for her regular checkup in 22th week of
pregnancy . the doctor told her that there is a fair chance of child born with a congenital
handicap and would ned a pacemaker . even with a pacemaker, the baby may not be
leading a normal life .
2. Nandini sought a second opinion of the Board of Doctors of recognized government
hospital. the Board confirmed the finding of her gynecologist but refused to perform
abortion saying that abortion will not permitted beyond 20th week of pregnancy except
when the life of the mother was in danger.
3. She approached the High Court for permission but the High Court refused to allow the
termination on the ground that there was no scope for exercising its discretion. The
provisions in IPC read with the provisions of MTP Act make it clear that abortion ,except
in the curtain circumstances contained in the MTP Act , continues to be an offence.
4. Her SLP to this honorable Supreme Court has been admitted and the case has been listed
for early hearing in view of her advanced stage of pregnancy and the need for quick
disposal of her petition.
5. She has submitted in her appeal that the provisions of the IPC and the MTP Act violates
her fundamental right to life under Article 21 of the COI .Every woman has an absolute
right over her body and is entitled to terminate pregnancy at any stage before birth.
6. In her appeal , she argued that prohibition to abort a feoetus with disability beyond the
period prescribed in the MTP Act violates the right of the unborn child to live with
dignity.
7. she contends that while the PCPNDT act has specifically prohibited sex selective abortion
,Parliamet in his wisdom has not prohibited use of diagnostic techniques to discover foetal
disabilities. The purpose of the diagnostic test to discover foetal disabilities will be
frustrated if foetus with disabilities is not permitted to be aborted, especially in cases
which the disability is discovered only at an advanced stage of pregnancy. Abortion in
such cases should be permitted on the test of the feasibility of life with dignity and not
on the basis of the pregnancy or viability of life outside the womb.
7
8. She belongs to middle class family, replacing a pacemaker every five years will put an
undischargeable burden on her, affecting her as well as the child’s quality of life. Even
with a pacemaker, the doctor (lady’s gynaecolist) have opined, the child will not be able
to lead a normal life.
9. Hence she should be permitted to abort the foetus even at the late stage of pregnancy. She
also seeks a declaration that the provisions n the IPC & the MTP Act are unconstitutional
being violative of her right to life as well as right to unborn to a life with dignity .
10. The petition in the HC has been rejected. Hence the present petition in this honorable
court.
8
STATEMENT OF ISSUES
ISSUE NO. 1: WHETHER COURT CAN PERMIT THE TERMINATION OF

PREGNANCY TO THE PETITIONER WHERE THE LENGTH OF PREGNANCY
(GESTATION PERIOD) EXCEED 20 WEEKS WHICH IS THE CEILING LIMIT
PRESCRIBED UNDER THE SECTION 3(2) OF THE MTP ACT , AND UNDER
INDIAN PENAL CODE PROVISIONS . UNDER WHICH CIRCUMSTANCES COURT
CAN ALLOWED THE TERMINATION OF PREGNANCY?
ISSUE NO. 2: WHETHER SECTION 3(2) (b) AND 5(1) OF MTP ACT AND SECTION
312-318 OF INDIAN PENAL CODE IS ULTRA VIRES TO ARTICLE 14 & 21 OF THE
INDIAN CONSTITUTION?
ISSUE NO.3: WHETHER SECTION 312 INDIAN PENAL CODE, 1860 IS

UNCONSTITUTIONAL AND INCONSISTENT WITH MEDICAL TERMINATION
OF PREGNANCY ACT, 1971. ?
ISSUE NO. 4: WHETHER OR NOT A WOMEN HAS AN ABSOLUTE RIGHT TO

TERMINATE HER PREGNANCY AT ANY STAGE OR IS IT POSSIBLE TO FIND
ALL KIND OF DEFORMITIES OF UNBORN IN MOTHERS WOMB BEFORE 20
WEEKS OF PREGNANCY?
9
SUMMARY OF ARGUMENTS

The power of this honorable court under article 136 of the Constitution of India has a power to
allow the termination of pregnancy to the woman where the gestation period exceed 20 weeks
under the MTP Act. The MTP Act allows the termination beyond 20 weeks (section 5) in the
circumstance only where the medical board is in opinion that termination of such pregnancy is
immediately necessary to save the life of the pregnant woman. This is same as the IPC
provisions allows termination in certain circumstances where there is need to save the life of
the women and where the woman’s life is in danger. The term “life” in section 5 is wide enough
to include all kind of condition where termination allows before 20 weeks in section 3. This
could only be happen when purposive interpretation applied on the words of the statutes with
the objectives of the act and where there is doubt about the statutory purpose of the act with
the constitutional rights then harmonize construction will be followed.
ISSUE NO. 2: WHETHER SECTION 3(2) (b) AND 5(1) OF MTP ACT AND SECTION
The petitioner submits that section 3(2) (b) and section 5 of MTP Act 1971 is ultra vires Article
14 and 21 of Indian Constitution. Section 3(2) (b) is ultra vires Article 14 Indian Constitution
as there is no intelligible differentia between the classification of right to abort before and after
20 weeks of pregnancy and there is no rational nexus with object sought by the MTP Act as
with the advancing technology a safe abortion can be performed to the pregnant woman of later
stage with no inherent danger to mother as well as child. Section 3(2)(b) is ultra vires Article
21 of Indian Constitution as the right to exercise reproductive choice i.e. the right to choose
10
whether to conceive and carry pregnancy to its full term or to terminate is it at the core of one’s
privacy, dignity, personal autonomy, bodily integrity, self-determination, and right to health.
Section 5 is ultra vires to Indian Constitution as there is no legitimate state interest in
compelling a woman to continue her pregnancy where the continuance of pregnancy involves
risk to her physical or mental health or substantial risk of fetal abnormalities.

The Indian Penal Code provide the provisions under which the abortion has been criminalized.
There is no autonomy provides to the women with her body. The fundamental rights under the
Indian Constitution includes the reproductive right which should not be barred by any such
kind of provisions.

WEEKS OF PREGNANCY?
it is not possible to detect or determined all the deformities in the unborn child by the 20 th
week of pregnancy. The fetus developed week by week and even main organs like brain
developed in 36th week of pregnancy, whose deformity will not lead to a person to live normal
life. There is need of hour that the MTP Amendment bill,2014 and 2017 should have to be
implement .The medical boards, and authority which established under the act have to comply
with the MTP Rules and Regulations.
11
ARGUMENTS ADVANCED

The appellate jurisdiction of this honorable court under Article 136 is being invoked by means
of the present special leave petition which raises different issues related to termination of
pregnancy under the Medical Termination of Pregnancy Act 1971,MTP Rules2003,MTP
Regulation, which require consideration and urgent resolution by this honorable court since it
severely, drastically and irreversibly affects all women of the country and is not a regional issue
pertaining to any particular state.
Abortion has always been and continues to be and extremely controversial subject. Abortion is
opposed on the ground that lives need to be saved and note destroyed. Proponent who oppose
abortion, believe that life begin with fertilization. On the other side of the fence, there are
people who support abortion on various grounds. They believe that the fetus is an incomplete
human being and can’t be equated at par with humans. They are supportive of abortion for
various reasons. These are mostly based on medical conditions like serious defects.1
Abortion in India is legal in certain circumstances. Under the MTP Act 1971, termination of
pregnancy can only be done in good faith by registered medical practitioner and in such places
as it is required by this act and it permits the termination of pregnancy up to 12 weeks and the
opinion of more than two medical practitioners is required if termination of pregnancy is done
between 12 and 20 weeks because of many reasons as provide under section 3 of the MTP Act,
as follows;
 A risk is life to pregnant women, or
 A risk is grave injury to her physical or mental health, or
1
Rashmi Mabiyan, India’s Conditional Right to Abortion, available at
www.health.economictimes.indiatimes.com last visited on 25th Sep, 2019.
12
 If the pregnancy is caused by rape, or
 There is an existence of substantial risk that if the child I born, it would suffer from
some physical or mental abnormalities so as to be seriously handicapped, or
 Failure of any contraceptives2
 Risk to the health of the pregnant women by reason of her actual or reasonably
foreseeable environment
But what about when the gestation period exceed 20weeks during the pregnancy. How this
honorable court can acted upon it under the section 3 and section 5 of the MTP act.
Firstly, we have to see the laws of the other countries related to the abortion and the gestation
period.
U.K.: abortion is legal in the U.K. current abortion law was clarified in the 1967.generally, an
abortion be carried out only during the first 24 weeks of pregnancy. However if there is a
substantial risk to the women life or fetal abnormalities, there is no time limit. It is possible to
have and abortion legally after imposing 24 weeks period but only if it is either necessary to
save the mother’s life, to prevent long lasting injury mentally or physically both.3
U.S.A.: abortion was praised until the late 1860s till it was not banned by the state of the
country.in 1973, the abortion laws in USA suddenly changed by the Supreme Court judgment
in Roe V. Wade. In Roe’s case, the United States Supreme Court held that the Texas criminal
abortion statute which criminalize abortion except to save the life of a mother is violates of the
Due Process clause of the 14th amendment .The Court held the trimester framework on abortion
issue which is the following.4
According to the database maintained by the center for reproductive Rights. 67 countries across
the world allow abortions on women’s request. Twelve weeks is the most prevalent gestation
2
Sai Abhipsa Gochhayat, Understanding of right to abortion under Indian Constitution, available at
www.ssrn.com , last visited on 26th Sep 2019
3
Yashvardhan Singh Dixit and others, The Battle Continues: Abortion laws V. Human Rights Laws available
at jlsr.thelawbrigade.com
4
Roe v. Wade, 410 US 113 ( 1973 )
 Firstly, During first trimester of pregnancy there should not be any state interference.it means abortion
on demand and the decision is left on the pregnant woman and her physician
 Secondly, from and after the end of the first trimester and until the point of viability, the state may
regulate the abortion procedure only when the regulation relates to the mental health.it means the states
promotes the health of the mother.
 Thirdly, in third trimester where the viability of fetus (means fetus can survive outside the mother’s
womb)comes to question ,the states interest in protecting potential human life can be regulated.it means
state can prohibit abortion .but cannot prohibit wen the health and life of mother is at stake.
13
limit. This list includes almost all of Europe, Central Asian countries excluding Afghanistan,
Canada, Australia and some countries in Africa.5 (ANNEXURE 1)
Unlike in India, the abortion has been modified either the advancements in the techno lies
available. France, UK, Austria, Ethiopia, Italy, Spain, Iceland, Finland, Sweden, Norway,
Switzerland and even in Neal, allow for termination beyond 20weeks on the diagnosis of fetal
abnormalities. Abortion after the first trimester (12 weeks) is mostly allowed in case of risk to
the mother or fetus’s health.6
Now we have to see the law in the Indian context where IPC criminalise miscarriage/abortion
but the MTP act 1971 has been made by the legislature to liberalize the abortion laws.
An important aspect is that the termination of pregnancy is not something which is provided
for the first time by the MTP act .Section 312 of the IPC too protects termination of pregnancy
described as miscarriage; if it is done “in good faith for the purpose of saving the life of the
woman”. Similarly section 315 of the IPC protects any act done with intent to prevent child
from being born alive or causing it to die after its birth “if such act has been done in good faith
for purpose of saving the life of the mother”. The IPC had criminalized the medical termination
of pregnancy. The mother as well as abortionist could be punished with, except where abortion
had to be induced in order to save the life of the mother. 7
It is useful to quote both the sections of IPC
Section 312. Causing miscarriage – whoever voluntarily causes a women with child to
miscarry ,shall, if such miscarriage be not caused in good faith for the purpose to
saving the life of the woman, be punished with imprisonment of either description for
a term which may extend to three years, or with fine , or with both ;and ,if the women
be quick the child , shall be punished with imprisonment of either description for a term
which may extend to seven years ,shall also be liable to fine .
Explanation.- A women who causes herself to miscarry, is within the meaning of this
section .
Section 315. Act done with intent to prevent child being born alive or to cause it to die
after birth .- whoever before the birth of any child does an act with the intention of
5
Rohan Gupta, Abortion in India : experts call for changes, available at www.downtoearth.org.in last visited
on 26th Sep 2019
6
www.health.economictimes.indiatimes.com last visited on 25th Sep, 2019.
7
Nand Kishore Sharma and ors. Vs. U.O.I. AIR Raj 166 WLC Raj UC 411
14
thereby preventing that child from being alive or causing it to die after birth, and does
by such act prevent that child from being born alive ,or cause it to die after birth ,shall,
if such act be not caused in good faith for the purpose of saving the life of the mother
, be punished with imprisonment of either description for a term which may extend to
ten years , or with fine ,or with both .8
After the enactment of the MTP Act 1971, the provisions of the IPC relating to to miscarriage
have become subservient to this act because of the non obstante clause in section 3 (as follows)
of MTP which permits abortion /miscarriage by registered medical practitioner under certain
circumstances. The permission can be allowed on the three grounds as mentioned in the S.O.R.
of the MTP act.9
The MTP act has been provide three kind of time period under which the pregnant women can
go for abortion, 1.before 12 weeks, 2. Between 12-20 weeks, (section 3of MTP Act) 3.after 20
weeks of the pregnancy (section 5 of the MTP act). The impugned section of this act which is
the first concern in this appeal (SLP) are the section 3 and section 5 of MTP Act .which are as
follows:-
Section 3: When Pregnancies may be terminated by registered medical

practitioners.-
(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a
registered medical practitioner shall not be guilty of any offence under that Code or
under any other law for the time being in force, if any pregnancy is terminated by him
in accordance with the provisions of this Act.
(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 twelve weeks if such medical
practitioner is, or
(b) Where the length of the pregnancy exceeds twelve weeks but does not exceed
twenty weeks, if not less than two registered medical practitioners are. Of opinion,
formed in good faith, that, - (i) the continuance of the pregnancy would involve a risk
to the life of the pregnant woman or of grave injury physical or mental health; or
8
Indian Penal Code ,1860
9
R and ors. Vs. State of Haryana & ors .CWP -6733-2016
15
(ii) There is a substantial risk that if the child were born, it would suffer from such
physical or mental abnormalities as to be seriously handicapped.
Explanation 1.-Where any, pregnancy is alleged by the pregnant woman to have been
caused by rape, the anguish caused by such pregnancy shall be presumed to
constitute a grave injury to the mental health of the pregnant woman.
Explanation 2.-Where any pregnancy occurs as a result of failure of any device or
method used by any married woman or her husband for the purpose of limiting the
number of children, the anguish caused by such unwanted pregnancy may be
presumed to constitute a grave injury to the mental health of the pregnant woman.
(3) In determining whether the continuance of pregnancy would involve such risk of
injury to the health as is mentioned in sub-section (2), account may be taken of the
pregnant woman's actual or reasonable foreseeable environment.
(4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or,
who, having attained the age of eighteen years, is a lunatic, shall be terminated
except with the consent in writing of her guardian. (b) Save as otherwise provided in
C1. (a), no pregnancy shall be terminated except with the consent of the pregnant
woman.
Section 5: Sections 3 and 4 when not to apply. - (1) The provisions of Sec.4 and so
much of the provisions of sub-section (2 of Sec. 3 as relate to the length of the
pregnancy and the opinion of not less than two registered medical practitioner, 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. (2)
Notwithstanding anything contained in the Indian Penal Code (45 of 1860), the
termination of a pregnancy by a person who is not a registered medical practitioner
shall be an offence punishable under that Code, and that Code shall, to this extent,
stand modified.10
Section 5 of the MTP Act, is in the nature of an exception to the provision of sections 3 and 4
of the MTP Act. However, the Exceptions are not blanket and relate only to the following
matters:
10
The Medical Termination of Pregnancy Act, 1971. Act No. 34 of 1971. [10th August, 1971.]
16
 The requirement that length of pregnancy must not exceed 20 weeks { section 3(2)(b)},
 The requirement of opinion by two registered medical practitioners {section 3(2)(b)};
 The places at which the registered medical practitioners may undertake MTP
{section 4 }
 The provisions in section 2 (d) of the MTP Act insofar as they relate to possession, by
registered medical practitioner of experience or training in gynaecology and obstetrics
{ Explanation 2 to S.5}
The aforesaid means that medical termination of pregnancy which exceeds 20 weeks can be
undertaken only by registered medical practitioner in a case where he is of the opinion, formed
in good faith, that the termination of such pregnancy is immediately necessary to save the life
of the pregnant woman.11
The plain reading of the provisions in section 5 of the MTP Act might suggest that the exception
carved out in section 5of the MTP Act will apply only where termination of pregnancy is
immediately necessary to save the “life” of the pregnant woman. If the expression “life” in
section 5 of the MTP Act is to the be construed narrowly as antithesis to death or physical
survival or mere animal existence, then, it is perhaps possible to say that the exception carved
out in section 5 of the MTP Act will apply only to termination of pregnancies to prevent the
death of the pregnant woman. So the question arises where the expression “life” in section 5 of
the MTP act must be construed narrowly by adopting the principle of literal interpretation or
liberally by adopting the principle of purposive interpretation? 12
Several decisions rendered by the Supreme Court in which medical termination of pregnancy
was permitted beyond the ceiling period of 20 weeks as prescribed in section 3 (2) of the MTP
Act where the continuance of pregnancy involved grave injury to the mental health of the
pregnant woman or where there was substantial risk that if the child were born, it would suffer
from such physical or mental abnormalities as to be seriously handicapped. This means that
the principle of or literal construction was not adopted when it came to interpretation of the
provisions in the section 5 of the MTP Act by the Supreme Court in several cases. Rather, the
principle of the liberal or purposive interpretation was adopted where the expression "life" in
section 5(1) of the MTP Act is not to be confined to mere physical existence or survival, but
permission will have to be granted under section 5 (1) of the MTP Act for medical termination
11
Snehal Ravikant Mohite Vs. Union of India –W.P. 10835 of 2018 Bombay High Court
12
Sudha Sandeep Devgirkr vs. Union of India – W.P. 10835 of 2018 Bombay High Court
17
of pregnancy which may have exceeded 20 weeks, if the continuance of such pregnancy would
involve grave injury to the mental health of the pregnant woman.13
 A vs. U.O.I. 2018: Term: 25-26 Week, Reason for permission for termination: fetus
would not survive and can pose severe mental injury to the women. The termination
was permitted on the ground that the condition of fetus was not compatible with life,
which is the contingency referred to in clause (ii) of section 3(2) (b) of the MTP Act.
The termination was also permitted because the continuance of pregnancy posed
‘severe mental injury’ to the petitioner, which is a contingency referred to in clause (i)
of section 3(2)(b) of the MTP Act. In effect therefore, the Supreme Court, read into the
provisions of section 5 of the MTP Act, the contingencies reoffered to in clauses (i) and
(ii) of section 3(2)(b) of the MTP Act.14
 Mamta Verma vs. U.O.I.: terms 25 weeks, Reason for permission for termination:
Medical board opined that fetus won’t survive and can pose severe mental injury to the
woman. There was no danger to the life of the pregnant mother. Yet, termination of
pregnancy was permitted primarily on the ground that the fetus was not likely to survive
and this was causing severe mental injury to the pregnant mother. This means that
termination of pregnancy was permitted under section 5 of the MTP Act by reading
into the provisions of section 5 of the MTP Act, the contingencies referred to in clauses
(i) and (ii) of section 3(2)(b) of the MTP Act.15
 Tapasya Umesh Pisal vs. U.O.I.: terms: 24 weeks, Reason for permission for
termination: medical board opined that baby if delivered would have to undergo
multiple surgeries which is associated with a high morbidity and mortality.16
 Sonali Kiran Gaikwad vs. U.O.I.: Terms: 28 weeks: Reason for permission for
termination: medical board opined serious abnormalities of the fetus, a substantial risk
of serious physical handicap and high chance of morbidity and mortality in the new
born. Although mother’s life was not in danger this Court held that continuing
pregnancy will cause mental anguish. ( and several other cases )17
 Z vs. State of Bihar:Term:24 Week, the SC disapproved the dismissal of writ petition
by the HC where the HC relying upon the doctrines of “parens patriae” and “compelling
state intrest”.SC held that if the provisions in section 5 are to be construed narrowly,
13
Swati Aggarwal vs. Union of India – writ petition ( c ) 825 / 2019 of Supreme Court of India
14
A vs. Union of India (2018) 14 SCC 75
15
Mamta Verma vs. Union of India and ors. (2018) 14 SCC 289
16
Tapsaya Umesh Pisal vs. Union of India (2018) 12 SCC 57
17
Sonali Kiran Gaikwad vs. Union of India – W.P. ( c ) No. 928 of 2017
18
then such interpretation ,would exclude some of the most important objectives for
which the MTP Act was enacted or some of the most important purposes for which the
MTP Act permits medical termination of pregnancies in the teeth of the IPC .18
 X vs. U.O.I.: in term 25 weeks allowed termination
 Sharmishta Chakraborty V/s U.O.I.
In all the cases the purposive interpretation has been followed by this honorable court where
the Statement of Object and Reason of the MTP Act has been harmonize with the different
words of the statute.
The S.O.R. of the MTP Act: the proposed measures in the MTP Act, seeking to liberalize, for
the following three purposes: -
(i) As a health measure – when there is danger to the life or risk physical or mental health
of the woman;
(ii) On humanitarian grounds – such as when pregnancy arises from a sex crime like rape
or intercourse with a lunatic woman, etc.; and
(iii) Eugenic grounds – where there is substantial risk that the child, if born, would suffer
from deformities and diseases.19
Where there is doubt about the meaning of the statute, are to be understood in the sense in
which the best harmonize with the subject of the enactment and the object which the legislature
has in view. The court have declined “to be bound by letter, when it frustrates the patent
purposes of the statute”. it is one of the surest indexes of a mature and developed jurisprudence
not to make a fortress out of a dictionary but to remember that statutes always have some
purposes or object to accomplice who sympathetic and imaginative discovery is the surest
guide to their meaning ( Cabell vs. Markham)20. The basic task of the court is to ascertain and
give effect to the true meaning of what parliament has said in the enactment to be construed (R
vs. Secretary)21.and judge must do this not only from the language of the statute but also from
a consideration of the social condition and then he must supplement the written word so as to
give “force and life” to the intention of the legislature.22
18
Z vs. state of Bihar ( 2018 ) (11) SCC 572
19
MTP Act 1971, statement of objects and reasons ( Act no. 34 of 1971 )
20
Cabell vs. Markham – 148 F 2d 737 (2d Cir 1945), ( Judge Learned Hand )
21
R (Quintavalle) vs. Secretary of state for Health – 2003 UKHL 13, ( Lord Bingham of Cornhill )
22
Seaford Court Estates Ltd. Vs. Asher – (1949) 2 KB 481 (CA), (Lord Denning)
19
Another facet of purposive interpretation of statute is that of social context adjudication .law
must not remain static but move ahead with time keeping in the mind the social context. “As
in life so in law”, things are not static. In both constitutional and statutory interpretation court
is supposed to exercise discretion in determining the proper relationship between the subjective
and objective purposes of the law.23
Applying the principles of purposive interpretation, the expression "life" as it appears in section
5 of the MTP Act is to be construed liberally so as to effectuate the purpose for enactment of
MTP Act as reflected in the Statement of Objects and Reasons. Such construction will advance
the purpose of the MTP Act by liberalizing or decriminalizing the existing provisions relating
to termination of pregnancy in IPC where medical termination of pregnancy is warranted on
account of risk to the physical as well as mental health of the mother (health measure), where
pregnancy arises from a sex crime like a rape or intercourse with a mentally ill woman etc.
(humanitarian grounds) and where there is substantial risk that the child, if born, would suffer
from deformities and diseases (eugenic grounds). Narrow or literal construction, in contrast,
will force a pregnant mother to continue her pregnancy even though the same might involve
grave injury to her mental health, even though the pregnancy may have arisen from a sex crime,
and even though there is substantial risk that the child, if born, would suffer from deformities
and diseases. Narrow or literal construction, would therefore, exclude almost altogether the
humanitarian and eugenic grounds as well as the ground of grave injury to the mental health of
the mother. In such circumstances, the principle of narrow or literal construction will have to
yield to the principle of liberal or purposive construction.
In all such cases, there is no doubt whatsoever that this Court will have to obtain a medical
opinion on the precise issue as to whether termination of pregnancy beyond the 20th week and
in circumstances set out in clauses (i) and (ii) of section 3(2) (b) of the MTP Act, would pose
any risk to the life of the pregnant mother. It would thus be logical to conclude that the
contingencies referred in Clauses (i) & (ii) of sub-section (2) (b) of Section 3 will have to be
read in Section 5 of the Act of 1971 and it would be relevant to consider the threat perception
and substantial risk involved if the child were to born, it would suffer from such physical or
mental abnormalities as to be seriously handicapped. The contingencies laid down in Clauses
(i) & (ii) of sub- section (2)(b) of Section 3 shall therefore equally apply to the request of a
pregnant woman seeking permission to terminate the pregnancy beyond 20 weeks and
23
Badshah vs. Urmila Badshah Godse – (2014) 1 SCC 188
20
accordingly Section 5(1) will have to be construed, to meet the object and purpose of enactment
and to promote cause of justice.24
This is evident from the provision in section 3(3) of the MTP Act which requires account to be
taken of the pregnant woman's actual or reasonable foreseeable environment in determining
whether continuance of a pregnancy would involve such risk of injury to health as is mentioned
in section 3(2) of the MTP Act. The expression "pregnant woman's actual or reasonable
foreseeable environment" is also particularly relevant when it comes to dealing with cases of
women from rural areas or rural backgrounds. The provisions of MTP Act have to be so
construed so as to not impose any unreasonable or disproportionate burden on pregnant women,
who on account of circumstances set out in clauses (i) and (ii) of section 3(2) (b) of the MTP
Act seek medical termination of pregnancy, even though, the ceiling prescribed in the said
provisions may have crossed.25
Two set of cases under which court have to discretion to allow termination beyond 20 weeks
under the MTP Act:
1. There is threat to the physical existence of 2.In the later cases however, there may not be
the pregnant mother, if termination of any immediate threat to the physical existence
pregnancy is not undertaken by the of the pregnant mother, but, nevertheless the
registered medical practitioner, continuance of pregnancy, particularly under
immediately. The inevitable delay involved circumstances set out in clauses (i) and (ii) of
in the legal process might even lead to the section 3(2)(b) of the MTP Act, may deprive
demise of the pregnant mother. the Petitioner of her right to life, which as noted
earlier, includes not merely the right to
physically exist or to survive, but also, the right
to live with human dignity, the right to
comprehend one's being in its fullest sense.
2..in a case where medical practitioner is 2.where pregnancy had exceeded 20 weeks and
of opinion, formed in good faith, that where the pregnant woman will not die if the
termination of such pregnancy is pregnancy is not immediately terminated, but
24
Shaikh Ayesha Khatoon vs. Union of India ( writ Petition (st.) No. 36727 of 2017
25
Sudha Sandeep Devgirkr vs. Union of India - writ petition 10835 of 2018 Bombay High Court
21
immediately necessary to save the life of the pregnant woman seeks to terminate
the pregnant woman, can medically pregnancy on the ground that its continuance
terminate such pregnancy which may would involve grave risk to her physical or
have exceeded 20 weeks, even without mental health or where there is substantial risk
the permission from the Court. This is in that if the child were born, it would suffer from
a situation where the pregnant woman physical or mental abnormalities as to be
might actually die if the pregnancy is not seriously handicapped, then, there will be no
immediately terminated. liberty to the registered medical practitioner, on
his own, to terminate such pregnancy
3. Termination could be happened even 3. .In the later situation, permission will
without the permission from the Court necessarily have to be obtained from the High
Court, before a registered medical practitioner
undertakes such medical termination of
pregnancy.26
The medical board, in such matters, is expected to address all medical issues which normally
arise in such matters, including, but not restricted to the following:
(i) Whether the continuance of the pregnancy would involve risk to the life of the pregnant
woman or of grave injury to her physical or mental health; or
(ii) Whether there is a substantial risk that if the child were born, it would suffer from such
physical or mental abnormalities as to be seriously handicapped.
(iii) Whether, having regard to the advanced stage of pregnancy, there is any danger (other than
the usual danger which arises even in spontaneous delivery at the end of full term), if the
pregnant mother is permitted to terminate her pregnancy?
(iv) If the pregnant mother is a minor or mentally ill person, then, the medical board to
ascertain, to the extent possible, the wishes of the pregnant mother on the continuance of
pregnancy or otherwise.
(v) The medical process best suited to terminate the pregnancy and the possibility of child being
born alive, in the process.
26
Abortion jurisprudence in the Supreme Court of India available at www.clpr.org.in/blog last visited on 28th
Sep, 2019.
22
(vi) Any other issues, which the medical board regards as relevant, in such matters.27
There are several decision of the court {Mrs. V/s U.O.I. Murugan Nayakar V/s U.O.I. ,
Tapasya Umesh Pisal V/s U.O.I., Mamta Verma V/S U.O.I., etc;}we seen that the decision
of the court depends on the recommendations of the medical boards .it is he Medical Board’s
findings on the continuation and termination of pregnancy ,which become the determining
factor of the court ,rather than the women reproductive right .whether court solely depending
upon the medical boards or is follow own power to allow termination. 28
There are following aspect under which court allow termination beyond the 20 weeks of
pregnancy;
1. To follow the condition of the section 3 of MTP on the application of section 5to
achieve the S.O.R. of the MTP Act as to follow purposive interpretation
2. Evidence and the findings of the medical board
3. Only follow the literal interpretation where court didn’t bound by the authority of the
medical board but on legislature statute.
A 2015 study in the Indian of Medical Ethics said 10-13 per cent of maternal deaths in India
are due to unsafe abortions. “if women are not allowed to terminate their pregnancy legal after
20 weeks, they will either go abroad for abortions or terminate it illegally. This will lead to
unsafe pregnancies,” 29
Though the court may have given more nods in abortion cases but till when will people actually
continue to appeal to the court if judgments are passed on ethical and moral values. Denying
the right to abortion and forcing to continue the pregnancy despite knowing that the fetus’s
abnormality not only kills the joy of motherhood but also disrupts the quality of life. Who is to
be blamed for the family’s mental and financial burden caused by the outdated Act?
“The quality of life of such newborns and mental trauma to the parents must be considered
before turning down a case completely citing the law as the reason,” says Dr. Ajoy Raj Malpe,
Group Medical Director, BR Life. He further believes that the correct decision can only be
27
Sudha Sandeep Devgirkr vs. Union of India – W.P. 10835 of 2018 Bombay High Court
28
Abortion jurisprudence in the Supreme Court of India available at www.clpr.org.in/blog last visited on 28th
Sep, 2019.
29
2015 study in Indian of Medical Ethics available at https://ijme.in last visited on 25th Sep,2019
23
taken if opinions of obstetricians, pediatricians and medico legal experts with appropriate
qualifications and expertise are considered before taking the final decision.30
There needs to be more discussion on laying down legal guidelines in MTP Act for doctors
and courts to follow while deciding on abortion after the 20-week mark rather than imposing
decisions on the mother based on individual understanding. MTP amendments need to work
in line with the Act so that women rightfully access the safe abortion practices without any
fear. There needs to be a balance in considering these acts so that the woman doesn’t bear the
brunt of the conflict of interest.31The termination of pregnancy should be allowed on the basis
of the congenital deformities not on the basis of the gestation period.
30
www.health.economictimes.indiatimes.com
31
Article, “plea in supreme court :abortion law voilative of privacy”(Swati Aggarwal vs.UOI), available at
https://indianexpress.com/articles, published on 15th July 2019
24
ISSUE NO. 2: WHETHER SECTION 3(2) (b) AND 5 (1) OF MTP ACT AND SECTION
CURRENT LEGAL FRAMEWORK OF TERMINATION OF PREGNANCY IN

INDIA:
The current framework of termination of pregnancy is governed by The Medical Termination

of Pregnancy Act, 1971, Medical Termination of Pregnancy Rules, 2003 and Medical
Termination of Pregnancy Regulations 2003.
The Medical Termination of Pregnancy Act, 1971
The objectives of the Act are to legalise abortion, to improve the maternity health scenario by
preventing large number of unsafe abortions and consequent high incidence of maternal
mortality and offers protection to medical practitioners who otherwise would be penalised
under the Indian Penal Code under Sections 312- 316.
The statement of objects and reasons sheds the light on the backdrop in which the act was
enacted. It is stated in the SOR that it was enacted in view of provisions of Indian penal code
which made a crime and for which the mother as well as the abortionist could be punished
except where it had to be induced in order to save the life of mother. This law being too strict
was breached in a very large number to conceal their pregnancy. The doctors were confronted
with gravely ill or dying pregnant women whose uterus has been tampered with a view to
causing an abortion and consequently suffered very severely.
It was further stated that there was thus avoidable wastage of mother’s health, strength and
sometimes, life. The proposed measure which seeks to liberalise certain existing provisions
relating to termination of pregnancy has been conceived (1) as a health measure – when there
is danger to the life or risk to the physical or mental health of the women : (2) on humanitarian
grounds- such as when pregnancy arises from a sex crime like rape or intercourse with a lunatic
woman , etc and (3) eugenic grounds – where there is substantial risk that the child, if born
would suffer from deformities and diseases.
25
In Suchita Srivastava vs. Chandigarh Administration 32, the apex court of
India ruled that a woman’s right to make reproductive choices is a dimension of ‘personal
liberty’, as understood under Article 21 of the Indian Constitution. Reproductive choices can
be exercised to procreate as well as to abstain from procreating. The crucial consideration was
held to be a woman’s right to privacy, dignity and bodily integrity. Thus, restrictions could not
be placed on the exercise of reproductive choice such as a woman’s right to refuse participation
in sexual activity or, alternatively, on her insistence on the use of contraceptive methods.
Women are free to choose birth control methods such as undergoing a sterilization procedure.
It was observed that reproductive rights include a woman’s entitlement to carry pregnancy to
its full term, to give birth and to raise children.
In Roe vs. Wade 33, the apex court of United States of America ruled that unduly restrictive
state regulation of abortion is unconstitutional. The court held that a set of Texas statutes
criminalizing abortion in most instances violated a woman’s constitutional right of privacy,
which it found to be implicit in the liberty guarantee of the due process clause of the Fourteenth
Amendment.34
It is a woman's individual right, right to her life, to her liberty, and to the pursuit of her
happiness enriched under Article 21 of Indian Constitution, that sanctions her right to have an
abortion. Thus, right to abortion is a Fundamental Right protected under the Constitution of
India but with certain restrictions mentioned under the Medical Termination of Pregnancy Act,
1971. Section 3 of Medical Termination of Pregnancy Act, 1971 provides for the restriction as:
3. When pregnancies may be terminated by registered medical practitioners.-
(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860),
a registered medical practitioner shall not be guilty of any offence under that
Code or under any other law for the time being in force, if any pregnancy is
terminated by him in accordance with the provisions of this Act.
32
28 August 2009, SLP (C) 5845/2009
33
January 22, 1973
34
Fourteen Amendment prohibited the states from depriving any person of “life, liberty, or property, without
due process of law” and from denying anyone within a state’s jurisdiction equal protection under the law.
26
(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 twelve weeks, if such
medical practitioner is, or
(b) where the length of the pregnancy exceeds twelve weeks but does not
exceed twenty weeks, if not less than two registered medical practitioners are,
of opinion, formed in good faith, that-
(i) the continuance of the pregnancy would involve a risk to the life of the
pregnant woman or of grave injury to her physical or mental health; or
(ii) there is a substantial risk that if the child were born, it would suffer from
such physical or mental abnormalities as to be seriously handicapped.
Explanation 1.-Where any pregnancy is alleged by the pregnant woman to

have been caused by rape, the anguish caused by such pregnancy shall be
presumed to constitute a grave injury to the mental health of the pregnant
woman.
Explanation 2.-Where any pregnancy occurs as a result of failure of any

device or method used by any married woman or her husband for the purpose
of limiting the number of children, the anguish caused by such unwanted
pregnancy may be presumed to constitute a grave injury to the mental health
of the pregnant woman.
(3) In determining whether the continuance of a pregnancy would involve such

risk of injury to the health as is mentioned in sub-section (2), account may be
taken to the pregnant woman's actual or reasonable foreseeable environment.
(4) (a) No pregnancy of a woman, who has not attained the age of eighteen
years, or, who, having attained the age of eighteen years, is a [mentally ill
person], shall be terminated except with the consent in writing of her guardian.
(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated
except with the consent of the pregnant woman.
27
IMPUGNED PROVISIONS:
Section 3(2) (b) is which restricts the right to seek an abortion on the grounds of risk to the life
of pregnant woman, grave injury to her physical and mental health or substantial risk that of
child were born, it would suffer from physical or mental abnormalities as to be seriously
handicapped to 20 weeks is violative of Article 14 and 21 of Indian Constitution.
It is submitted that Section 3(2) (b) is ultra vires Article 14 as there is sheer inequality
between the right of a woman to abort after 20 weeks and right to abort of a woman
before 20 weeks of their pregnancy. Every woman has a right to decide regarding her
own family i.e. whether to have a child or not. The state cannot arbitrary decide the
matrimonial issues and the decision to have a child or not. Thus, there must be no
distinction to terminate pregnancy between a woman before or after 20 weeks of
pregnancy. Decades ago, the only method available for termination of pregnancy was
dilatation and curettage (D&C), an invasive procedure that requires general anesthesia
to remove the products of conception. This procedure can lead to complications such
as bleeding, perforation of the uterus, infection, and so on. The MTP Act took into
consideration the mother’s safety according to medical technology available at that time
in 1971 It is based on old science. With the recent advances in reproductive medicine
and technology, newer techniques and procedures have become available. There are
several safer options for abortion, including pharmacological solutions and dilatation
and evacuation (D&E or vacuum aspiration). Even abortion in later stages of pregnancy
has become safer with the availability of better anesthesia, good intensive care, and
newer gases. With the growing world and with the advancement of technology the laws
must also grow in consonance with that. Thus, it is submitted that section 3(2) (b) of
MTP Act violates the Right of Equality of pregnant woman of later stage (i.e. beyond
20 weeks) with that pregnant woman of early stage (i.e. before 20 weeks). Article 14 of
Indian constitution provides for the right to equality for all citizens. It is submitted that
there is no intelligible differentia between the classification of right to abort before and
after 20 weeks of pregnancy and there is no rational nexus with the object sought by
the medical termination or pregnancy act, 1971 as with the advancing technology a safe
28
abortion can be performed to the pregnant woman of later stage with no inherent danger
to mother as well as child.
It is submitted that Explanation 2 of section 3(2)(b) is ultra vires Article 14 as there is sheer
inequality between right to abort by a married woman and right to abort by unmarried woman.
Explanation 2 states that “Where any pregnancy occurs as a result of failure of any device or
method used by any married woman or her husband for the purpose of limiting the number of
children, the anguish caused by such unwanted pregnancy may be presumed to constitute a
grave injury to the mental health of the pregnant woman”. The section only allows for the
abortion by a married woman and there is no reference to woman who are unmarried. In Badri
Prasad vs. Dy. Director of Consolidation35 , the Supreme Court of India for the first time
recognized live in relationship and interpreted it as a valid marriage. Moreover, in Tulsa &
Ors vs. Durghatiya & Ors36, the Supreme Court provided legal status to the children born
from live in relationship. It was held that one of the crucial pre-conditions for a child born from
live-in relationship to not be treated as illegitimate are that the parents must have lived under
one roof and co-habited for a considerably long time for society to recognize them as husband
and wife and it must not be a "walk in and walk out" relationship. Therefore, the court also
granted the right to property to a child born out of a live-in relationship. It is submitted that
Explanation 2 of section 3(2)(b) violates the right to equality of woman of live in relationship
or unmarried woman of their the right to abort. If Supreme Court in their landmark judgments
recognised live in relationship and also legitimised the child born out of couples of live in
relationship, then there is no intelligible differentia between the classification of right to abort
by married woman and right to abort by unmarried woman. Moreover, there is no rational
nexus between the object sought by the MTP Act as the Indian society has observed a drastic
change in its living pattern where people are slowly and gradually opening their minds towards
the idea of pre-marital sex and live-in relationships and the apex court too interpreted the live
in relationship as a valid marriage
Thus, it is submitted that section 3(2) (b) of MTP Act is ultra vires to Article 14 of Indian
Constitution. It is submitted that section 3(2) (b) is ultra vires Article 21 of Indian Constitution
as the right to exercise reproductive choice i.e. the right to choose whether to conceive and
carry pregnancy to its full term or to terminate is it at the core of one’s privacy, dignity, personal
autonomy, bodily integrity, self-determination and right to health recognized under Article 21
35
Air 1978 Sc 1557
36
(2008) 4 SCC 520
29
and the same has been held by this Hon’ble court in Suchitra Srivastav Vs. Union Of
Indian.37 The Right to Health recognized by Article 21 also affords Constitutional protection
to the choice exercised by a woman to choose a course (to terminate or not to terminate) which
is less detrimental to her physical and mental health. The State cannot compel a woman to
continue a pregnancy against her will when continuance of pregnancy will entail physical,
mental and socioeconomic consequences which far outweigh the consequences that ensue as a
result of termination of pregnancy.
A Constitutional right can be curtailed only by a law which is just fair reasonable and
proportionate as has been laid down by this Hon’ble Court in Maneka Gandhi Vs. Union of
India38and further expounded in by a 9 Judge bench of this Hon’ble Court in K.S. Puttaswamy
Vs. Union of India39 in which this Hon’ble Court held that when State intervenes with the
right of privacy of a person to protect legitimate State interest, the State must put into place a
robust regime that ensures a threefold requirement. These three requirements apply to all
restraints on privacy. The first being existence of law, second being need in terms of legitimate
State interest which ensures that the law is reasonable as mandated by Article 14 and third
requirement that the means that are adopted by Legislature which are adopted by the
Legislature are proportional to the objects and needs sought to be fulfilled by the law. It is
submitted that at this stage of pregnancy there is no legitimate interest of the State involved for
interfering in the right of reproductive choice of the woman and therefore there should not be
any intervention by the State curtailing the right of the lady to terminate pregnancy. Only
regulatory measures aimed at safe abortions can be made. The restriction imposed by the
impugned provision does not have nexus with the object of the Act which is prevention of
maternal mortalities and complications associated with unsafe abortion and is excessive and
disproportionate and fails to meet the test laid down in KS Puttaswamy case.
Section 3(2)(b) of MTP Act permits termination of pregnancy beyond 12 weeks and not
exceeding 20 weeks provided two registered medical practitioners are of the opinion that the
continuance of pregnancy would involve a risk to the life of the pregnant woman or of grave
injury to her physical or mental health or there is substantial risk that if the child were born, it
would suffer from such physical or mental abnormalities as to be seriously handicapped. It is
submitted that the restricting the permissible length of pregnancy to 20 weeks is excessive and
37
(2009) 9 SCC 1.
38
(1978) 1 SCC 248
39
(2017) 10 SCC 1.
30
harsh. With the advent of science and technology diagnosis of fetal abnormalities is possible
at subsequent stages and with the advancement of science and technology it has become
possible to terminate pregnancy even at later stages. It has been noted by the Hon’ble Bombay
High Court in XVZ VS Union of India40 that
“it is not as if all contingencies express themselves only within the first 20
weeks of pregnancy. Even in cases where a pregnant mother is regularly
following up her gyaenacologist, double marker test is undertaken between 10th
and 13th week; triple marker test between 18th and 20th week and the crucial
anomaly scan in, around the 20th week. Many serious fetal anomalies may not
even be diagnosable until twenty weeks as many pregnant mothers may not even
have access to suitable diagnostic tools, particularly in rural areas. In many
cases, complications can develop as the pregnancy advances. In such cases, as
long as the medical opinion does not suggest that medical termination of
pregnancy itself is a serious risk to the physical life of the pregnant mother, the
law cannot plead helplessness particularly where circumstances set out in
clauses (i) and (ii) of Section 3(2)(b) of the MTP Act manifestly exist.”
Although the MTP Act does not require judicial authorization for abortion, the Supreme Court
and High Courts across the country have been undertaking a case-by-case analysis to approve
or deny abortions for women and girls beyond 20 weeks of pregnancy. There have been at least
25 such cases since 2015.41 These cases typically involved pregnant women who received a
diagnosis of fetal impairment or pregnant adolescents who were victims of rape. The decisions
have been mixed, even in cases with petitioners seeking terminations in seemingly similar
circumstances leading to confusion about the law and the need for reform. Indian courts have
permitted abortion after 20 weeks gestation in multiple instances. In the face of individual
petitions, courts have repeatedly recognized the need to ensure that women and girls are not
forced to continue pregnancies that may jeopardize their physical or mental health.
Furthermore, the Supreme Court has, at times, issued compensation to petitioners after they
have been denied an abortion, recognizing that the government’s negligence and inaction led
to the forced continuation of pregnancy and has caused “incalculable harm and irreversible
40
2019 SCC Bom 550
41
Article on Reform to Address Women’s and Girls Need for Abortion After 20 Weeks India
31
injury giving rise to emotional trauma.”42 However, there have also been contradictory
judgments, leading to a lack of clarity as to when a woman or girl is legally permitted to obtain
an MTP beyond 20 weeks. Courts have not established a clear framework to determine when
an MTP is legal beyond 20 weeks, how to eliminate the need for judicial and medical board
authorization, and how to address the underlying issue of providers’ unwillingness to authorize
legal abortions. This is despite the fact that there have been multiple petitions filed to courts
nationally requesting comprehensive law and policy reform, including one that has been
pending before the Supreme Court since 2008.43 These petitions include requests to the Court
to consider: introducing language that recognizes the link between fontal impairment and a
women’s physical and mental health; extending the health exception to match the life
exception, which does not have a limit; and establishing an appeals process for women who
have been improperly denied abortions, among various other claims involving reform of the
law44.
In cases concerning rape victims’ requests for MTP beyond 20 weeks, courts have echoed the
MTP Act’s existing recognition of the “grave anguishes” that may be caused by pregnancies
resulting from rape.70 For example, mental health suffering was an integral finding of the
Supreme Court in its decision to allow a 13-year-old girl to terminate her pregnancy at 32
weeks in September 2017.71 However, other cases have recognized the trauma, psychological
harm, and social ostracism that can result from forcing a rape survivor to carry an unwanted
pregnancy to term, but still denied petitioners MTPs.45 As a result, it is unclear if this finding
is sufficient on its own as a legal ground for abortion beyond 20 weeks in rape cases, and how
this is balanced with other factors considered by medical boards and the courts.
Fetal impairments often cannot be detected until after the 20-week mark, since the fetus is not
sufficiently developed for many conditions to be diagnosed,46 even in the most developed
healthcare settings. The Royal College of Obstetricians and Gynecologists in the United
Kingdom has clarified that “the majority [of fetal impairments] will only be identified on an
anomaly scan at 18-20 weeks.”47 Restricting legal abortions to 20 weeks’ gestation may deny
42
Ms. Z v. The State of Bihar and Others, C.A. 10463 of 2017, at http://www.livelaw.in/sc-notice-plea-rs-10l-
compensation-10-yr-oldrape-survivor-delivered-baby/
43
Mrs X and Ors. v. Union of India, W.P.(C) 81 of 2017 at http://www.livemint.com/Politics/
wwckIdiCLDJwBQLHhnHW8O/SC-notice-to-Centre-on-PIL-seeking-10yearoldrape-survivor.html.
44
Article on Reform to address women’s and girl’s need for abortion after 20 weeks in India
45
Ashaben w/o. Dineshbhai Jasubhai Talsaniya (Devipujak) v. State of Gujarat, S.C.A.(Q) 1919 of 2015, H.C.
Guj., 16 Apr. 2015.
46
Isaacson v. Horne, 716 F.3d 1213 (9th Cir. 2013).
47
scotland, and Wales 17 (2010)
32
women the time they need to make a well-informed decision. For example, Mrs. X, one of the
two petitioners in the currently pending Supreme Court case entitled Mrs. X and Mrs. Y v.
Union of India, was forced to terminate a pregnancy without a confirmed diagnosis of a fetal
impairment at 19 weeks because the proper testing could be done only after the legal limit.4
The Punjab and Haryana High Court also held that denying MTP and counseling services to
pregnant survivors of rape could constitute violations of the right to freedom from inhuman
and degrading treatment.48 Several other High Court and Supreme Court decisions in post-20
week cases have also recognized that compelling a woman or girl to continue a pregnancy
against her will violates her fundamental rights to bodily integrity, privacy, and dignity, as well
other basic rights, such as the right to work and the right to receive an education.49 These post-
20 week decisions that recognize fundamental rights violations echo a growing body of
judgments on issues ranging from maternal health, coerced and unsafe sterilization, child
marriage and marital rape, and MTP that interpret Article 21 to include women’s and girls’
rights to survive pregnancy and childbirth and decision-making over their own bodies.
Section 5 so far as it permits abortion after 20 weeks only on the ground of immediate
necessity to save the life of the pregnant woman is violative of Articles 14 & 21:
Section 5 enables termination of pregnancy beyond 20 weeks where the registered medical
practitioner is of the view that termination of such pregnancy is immediately necessary to save
the life of the pregnant woman. It is submitted that this provision is arbitrary and severely
restricts the right to life and right to choice envisaged under Article 21 of the Constitution in
more than one ways. (i). It proscribes pregnancy even in the event fetal abnormalities are
detected post 20 weeks. Although the High Courts and Supreme Court have time and again
permitted abortions post twenty weeks where fetal abnormalities have been detected post 20
weeks. (ii). It proscribes pregnancy even in cases where the pregnancy is a result of rape. (iii).
There may be change of circumstances where the continuance of pregnancy may severely
jeopardize the physical or mental health of the woman though not necessarily be a threat to life
of woman. For instance woman may be diagnosed with certain serious disease like cancer
which may require postponing of treatment such as chemotherapy, there may be breakdown of
marriage during the continuance of pregnancy and bearing the child would have serious mental
and socio economic consequences, there could be a rape victim who discovers pregnancy at a
48
R v. State of Haryana, W.P.(C), 6733 of 2016, H.C. P.& H., 74, 30 May 2017.
49
Ms. Z v. The State of Bihar and Others, C.A. 10463 of 2017
33
stage later than the 20 week threshold or diagnosis of fetal abnormality at a later stage. In short
there could be a myriad of unforeseeable situations which may present themselves which need
to be accommodated and therefore the only ground of ‘immediate necessity of saving the life
of the woman’ is too harsh and arbitrary. Even the High Courts and Supreme Courts have
permitted termination of pregnancy in appropriate cases where the continuation of pregnancy
would result in physical or mental injury to the woman.
Section 5 fails to meet the test of reasonableness and proportionality. There is no legitimate
State interest in compelling a woman to continue her pregnancy where the continuance of
pregnancy involves risk to her physical or mental health or substantial risk of fetal
abnormalities. Keeping in view the legitimate State interest i.e. the health ( both physical and
mental ) of the pregnant woman the measure of complete ban on termination on any ground
other than immediate necessity of saving the life of the woman the measure is excessive,
disproportionate and counterproductive. Where the termination of pregnancy itself does not
involve risk to the physical life of the woman her right to choice and right to health have to be
respected. It is only when there is threat to right to life in the sense of right to live literally ( as
understood as anti-thesis of death ) which enjoys greater protections and is at higher pedestal
in the hierarchy of the fundamental rights can the right of reproductive choice and right to
privacy be overridden. This balancing of two aspects of rights emanating from Article 21 of
the Constitution of the same individual has been recognized by a 5 Judge Bench of this Hon’ble
Court in Aadhaar case i.e. KS Puttaswamy II (2019) 1 SCC 1. This court held that assuming
that the Aaadhar Act minimally infringed upon the right of privacy, the socio economic right
i.e. right to food etc will outweigh the right of privacy.
(i). A vs. UOI (2018) 14 SCC 75Term: 25-26th week Reason for permission for termination:
fetus would not survive and can pose severe mental injury to the woman.
(ii). Mamta Verma vs. UOI (2018) 14 SCC 289 Term: 25 weeks Reason for permission for
termination: Medical board opined that fetus won’t survive and can pose severe mental injury
to the woman.
(iii). Tapasya Umesh Pisal Vs. Union of India (2018) 12 SCC 57 Term: 24 weeks Reason
for permission for termination: medical board opined that baby if delivered would have to
undergo multiple surgeries which is associated with a high morbidity and mortality.
(iv). Sonali Kiran Gaikwad VS UOI (Judgment dated 9th October, 2017 in W.P. (C) 928
of 2017 in Sonali Kiran Gaikwad Vs. UOI) Term : 28 weeks Reason for permission for
34
termination: Medical Board opined serious abnormalities of the foetus,substantial risk of
serious physical handicap and high chance of morbidity and mortality in the new born.
Although mother’s life was not in danger this Court held that continuing pregnancy will cause
mental anguish.
(v). X vs. UOI (2017) 3 SCC 458 Term: 25 weeks Reason for permission for termination:
Medical Board opined that the condition of fetus was incompatible with extra uterine life
(vi). Sharmishta Chakraborty Vs. UOI (2018)13 SCC 339 Term : Beyond 20 weeks Reason
for permission for termination: Medical boards opined that there is a risk of injury to mental
health of the woman and child if born alive would require corrective surgeries associated with
high morbidity and mortality.
(vi). Meera Sathosh Pal vs. UOI (2017) 3 SCC 462 Term: 24 weeks Reason for permission
for termination: Medical board opined that the continuance of pregnancy will endanger
physical and mental health of the woman and the fetus won’t survive.
When the courts are unable to view the cases from the perspective of the woman and her
situation, it pushes her towards illegal and worse, unsafe abortion practices. Affluent women
can fly to another country where abortion is allowed way past 20 weeks, but the law punishes
those women who need the most assistance.
By denying the abortion the court did not adhere to the core principles of ethics- respect for
autonomy, beneficence, non-malfeasance and justice- as mother was not allowed to decide for
herself and was forced to abide by the decision taken by court. An act well formulated and
ahead of its time at inception seems not to have kept pace with technology and to be in need of
change.
Cases fallen due to and suffered through the cracks between judiciary, legislative and executive
while the science is currently available. With abortion denied, the family has to raise the child
within its meagre financial resources and a dented emotional reserve. If our government can
demonetize currency notes overnight to curb corruption, then surely amendments to this law
can be made more quickly.
35
Section 312 of Indian Penal Code, 1860 is an old and unnecessary provision related to abortion
in India. 'Miscarriage' technically refers to spontaneous abortion whereas voluntarily causing
miscarriage, which is an offence under the Indian Penal Code, stands for criminal abortion i.e.,
induced abortion. Indian Penal Code was enacted in 1860 with keeping in mind the technology
present in that era. But with advancement on technology the procedures have also improved
and abortion can be safely performed. Section 312 of Indian Penal Code only talks about
abortion done in good faith and when the life of mother is in danger, it does not comprehend
the rights granted by Indian Constitution i.e. right to privacy, right to choose, right to equality,
right to live with dignity.. As enriched under Article 21 and 14 of Indian Constitution.
To avoid the misuse of induced abortion and to soften the rigorous of law of abortion contained
in the Indian Penal Code, the Medical Termination of Pregnancy Act, 1971 was passed. The
object of the Act to confer on woman the right to privacy which includes right to space and
limit pregnancies, the right to decide about her own bodies. Another feature of this act is to
encourage the reduction in the rate population growth by permitting termination of unwanted
pregnancies on the ground that contraceptive failed. Moreover, provision of IPC does not
contemplate any period for abortion while MTPA provides for the same. So, it is unclear as
when i.e. which period of pregnancy the abortion is punishable. The reasons for abortion is
narrow as it only contains two reasons that are:
a) Abortion done in good faith

b) Abortion done for the purpose of saving the life of the women.
Whereas, the MTP Act contains the following reasons to abort that are:
a) A risk to life of a pregnant woman; or

b) A risk of grave injury to her physical and mental health; or
c) If the pregnancy is caused by rape; or There exists a substantial risk that, if the child
were born, it would suffer from some physical or mental abnormalities so as to be
seriously handicapped; or
d) Failure of any device or method used by the married couple for the purpose of limiting
the number of children; or
36
e) Risk to the health of the pregnant woman by reason of her actual or reasonably
foreseeable environment.
Thus, it is submitted that section 312 Indian Penal Code, 1860 should struck down as its
importance is lowered with the enactment of the MTP Act and also because it is ultra vires and
does not contain the fundamental rights enriched in the Indian constitution. The provision is
old and it has loosened it importance with time.
37
WEEKS OF PREGNANCY?
The Pre-Natal Diagnostic Techniques (PNDT) act has specifically prohibited sex-selective
abortion. This sex selective abortion was banned by the parliament in 1994. But parliament in
its wisdom has not prohibited use of diagnostic technique to discover fetal disabilities. The
purpose of this diagnostic test is to discover fetal disability. The purpose of this diagnostic test
to discover fetal disability will be frustrated if fetus with disability is not permitted to be
aborted. Especially in cases in which the disability is discovered only at an advanced stage of
pregnancy.
Under sec.3(2) of Medical Termination of Pregnancy (MTP) Act 1971 there is a ceiling limit
to abort the child i.e 20th week.
3. When pregnancies may be terminated by registered medical practitioners50. -
(1) Not withstanding anything contained in the Indian Penal Code (45 of 1860), a registered
medical practitioner shall not guilty of any offence under that Code or under any other law for
the time being in force, if any under that pregnancy is terminated by him in accordance with
the provisions of this Act.
(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 twelve weeks if such medical
practitioner is, or
(b) Where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks,
if not less than two registered medical practitioners are, of opinion, formed in good faith, that,-
50
https://www.advocatekhoj.com/library/bareacts/medicaltermination/3.php?Title=Medical%20Termination%20o
f%20Pregnancy%20Act,%201971&STitle=When%20pregnancies%20may%20be%20terminated%20by%20reg
istered%20medical%20practitioners
38
(i) the continuance of the pregnancy would involve a risk to the life of the
pregnant woman or of grave injury to her physical or mental health , or
(ii) there is a substantial risk that If the child were born. it would suffer from
such physical or mental abnormalities as to be seriously handicapped.
Explanation 1.- Where any pregnancy is alleged by the pregnant woman to have been caused
by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury
to the mental health of the pregnant woman.
Explanation 2.-Where any pregnancy occurs as a result of failure of any device or method
used by any married woman or her husband for the purpose of limiting the number of children,
the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury
to the mental health of the pregnant woman.
(3) In determining whether the continuance of pregnancy would involve such risk of injury to
the health as is mentioned in sub-section (2), account may be taken of the pregnant
woman's actual or reasonable foreseeable environment.
(4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, ss
(b) Save as otherwise provided in CI.(a), no pregnancy shall be terminated except with
the consent of the pregnant woman.
PNDT is prohibited by the parliament, but this use of diagnostic technique to discover foetal
disabilities is an exception which is not prohibited by the court directly.
But sec. 3 of MTP Act indirectly frustrated the purpose of this exception.
Development of fetus in mother’s womb has been clearly classified by the several medical
practitioner and have also discussed by the several authors of the reputed books on “medical
embryology”.
The classification of the development of the fetus in the mother’s womb is like 51
51
Langman’s MEDICAL EMBRYOLOGY 13th edition by T.W. SADLER
39
Development at 4 Weeks
At this point the baby is developing the structures that will eventually form his face and neck. The
heart and blood vessels continue to develop. And the lungs, stomach, and liver start to develop
The baby is now a little over half an inch in size. The arms and legs are well formed
The sex organs of the baby should start to become clear.
heart and blood vessels are fully formed.
In 20th week the baby can be feel fully. And make his movement own his on.
After 20th week of the pregnancy the doctor starts the ultra sound During this ultrasound, the
doctor will make sure that the placenta is healthy and attached normally and that your baby
is growing properly. You can see the baby's heartbeat and movement of its body, arms, and
legs on the ultrasound.
The brain has been developing rapidly. Lungs are nearly fully developed.
So, this can be clearly seen that even in the 36th week of the pregnancy the mind of the child will
develop. So if there is any deformity in the mind then that can be check by the doctor in 20th week
which is the ceiling limit of abortion.
In Roe V. Wade 52 the court applied the trimester framework to guide the judge and lawmaker
and in balancing the mothers health against the viability of the fetus in any given situation. In
the first trimester, the woman has the exclusive right to pursue an abortion, not subject to any
52
https://supreme.justia.com/cases/federal/us/410/113/
40
state intervention. In the second trimester, the state cannot intervene unless her health is at risk.
If the fetus becomes viable, once the pregnancy has progressed into the third trimester, the state
may restrict the right to an abortion but must always include an exception to any regulation that
protects the health of the mother.
But the apex court of U.S.A. ruled that a set of Texas statutes criminalizing abortion in most
instances violates the women rights.
From this above mentioned case it can be clearly says that it is not possible to identify all the
deformities in the unborn child by the 20th week of pregnancy, which a ceiling limitation is
prescribed in the MTP act.
In Niketa Mehta case 53the facts of this case is much similar to the fact of a case in question.in
this case She wanted to terminate a pregnancy which had a high probability of resulting in a
miscarriage or the birth of a child with a serious heart defect. This could have been a routine
decision, had it not been for the fact that Niketa`s pregnancy had advanced beyond the 20
weeks during which medical termination of pregnancy is permitted in India.
Rather than resort to an illegal abortion, Niketa and her husband, along with the specialist who
diagnosed a congenital anomaly in the fetus, filed a petition in the Mumbai High Court asking
for permission for an abortion in the 23rd week, which was when the problem was detected.
(1). The argument supporting them is that in several countries, including the United Kingdom,
there is no gestational age limit set for abortion in the case of fetal abnormalities
(2). Niketa`s personal reason for wanting an abortion was that she did not want to give birth to
a severely disabled infant and witness its suffering; the trauma caused to her and her family
was an additional reason
(3) While Niketa failed to obtain a favorable judgment from the court, her case has prompted
the government to announce that it will be considering a review of the law
53
https://ijme.in/articles/the-niketa-mehta-case-does-the-right-to-abortion-threaten-disability-
rights/?galley=html
41
(4). Further, this case raises several ethical dilemmas related to abortion, and also to disability
and the role of medical intervention.
Further, a logical consequence of the provision for abortion in the case of fetal abnormalities
is that each development in pre-natal diagnostics will necessarily be followed by revisions in
the law that the development necessitates. In Nikita Mehta`s case, the fetal heart defect could
only have been detected after 20 weeks ‘gestation.
In this case also the child was founded to be born with deformity. The deformity was founded
in the heart, and the heart developed after the 20th week of the pregnancy. And it’s not possible
for a person to live normal life with the congenital heart disease. So, from the above mentioned
cases it can be clearly shown that, it is not possible to identify all the deformities in the unborn
child before 20th week of the pregnancy. Many congenital diseases are such severe that a person
cannot live a normal life with that disease.
It is not as if all contingencies express themselves only within the first 20 weeks of pregnancy.
Even in cases where a pregnant mother is regularly following up with her gynecologist, double
marker test is undertaken between 10th and 13th week; triple marker test between 18 th and
20th week and the crucial Anomaly scan, in or around the 20th week. Many serious fetal
anomalies may not even be diagnosable until twenty weeks as many pregnant mothers may not
even have access to suitable diagnostic tools, particularly in rural parts.
In many cases, complications can develop as the pregnancy advances. In many cases,
complication may be detected at some advanced stage.54
Incidentally, reference may be made to the MTP (Amendment) Bill 2014 which also takes
Conscious cognizance of this aspect - in that the ceiling prescribed in section 3(2) of the MTP
Act is Proposed to be raised to 24 weeks. This amendment had even proposed to do away
entirely with the Ceiling of 20 weeks, where termination of pregnancy was necessitated by the
diagnosis of any
Substantial foetal abnormalities as may be prescribed. Similarly, reference may also be made
to the Medical Termination of Pregnancy (Amendment) Bill, 2017, the Statement of Objects
and Reasons Of which reads thus:
"This sub-section (2) of section 3 of the Medical Termination of Pregnancy Act, 1971, allows
the abortion of terminally ill fetuses up to twenty weeks pregnancy. During the intervening
54
Indian Kanoon - http://indiankanoon.org/doc/121687393/
42
period after the Act was enforced, several genuine cases have come up where the fact of fetuses
with serious risk of abnormalities with grave risk to physical and mental risk to mother had
been noticed after twenty weeks. As a result, many women were forced to move the Supreme
Court for permission to end pregnancy beyond twenty weeks, leading to lot of mental and
financial hardship to such pregnant women.
The Bill intends to extend the permissible period for abortion from twenty weeks to twenty
four weeks if doctors believe the pregnancy involves a substantial risk to the mother or the
child or if there are substantial fetal abnormalities. Extending the gestation period beyond 20
weeks can lead to better detection and hence, abortion of fetuses with abnormalities as
“anomaly scan conducted at or after the 20th week of pregnancy gives the exact picture whether
the fetus is suffering from down syndrome, congenital malformation or any other
abnormalities.
43
PRAYER
In the above facts and circumstances of the case, it is most humbly prayed that this Hon’ble
Court may be graciously be pleased to :
1. Allow a petition and permit her to terminate his pregnancy as per the parameter of the
detailed pleading by the counsels.
2. Allow a petition or any other appropriate writ to declare Section 3 (2) of the Medical
Termination of Pregnancy Act, 1971 to the extent it requires formation of opinion by
medical practitioner that continuance of pregnancy would involve a risk to the life of
the pregnant woman or of grave injury to her physical or mental health or there is
substantial risk that if the child were born, it would suffer from such seriously
handicapped for termination of pregnancy where length of pregnancy does not exceed
12 weeks as unconstitutional and void as it violates Article 14 & 21 of the Constitution.
3. Allow a petition or any other appropriate writ to declare Section 3(2)(b) of the Medical
Termination of Pregnancy Act, 1971 to the extent it restricts the termination danger this
court held that continuing pregnancy will cause mental anguish.
4. Allow a petition or any other appropriate writ to declare section 5 of the Medical
Termination of Pregnancy Act, 1971 to the extent it proscribes termination of
pregnancy beyond 20 weeks only on the ground of immediate necessity of saving the
of saving the life of the woman as unconstitutional and void as it violates Article 14 &
21 of the constitution
5. Issue mandamus or any other appropriate writ for implementation of the Medical
termination of Pregnancy ( Amendment ) bill,2014
6. Issue mandamus or any other appropriate writ directing Central Government to take
steps to provide access safe abortion to all women especially those belonging to socially
and economically backward sections of the society and to implement Medical
termination of Pregnancy ( Amendment ) bill,2014, Medical termination of Pregnancy
( Amendment ) bill,2017.
7. Pass any other or further order as this Hon’ble court may deem fit and proper in the
facts and circumstances of the present case.
44
ANNEXURES
ANNEXURE 1
45
46
47
55
55 The Legal Status of Abortion Worldwide by World Organization, preventing unsafe abortion, available at
https://www.who.int.new-room/fact-sheets/deatil/preventing-unsafe-abotion [ last updated 18th Feb, 2018 ]
48

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TEAM CODE: 2

MOOT COURT MEMORIAL, 2019, LAW CENTRE IIs

BEFORE THE HONOURABLE SUPREME COURT OF INDIA

SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE

Civil Appeal No. _______/2019

NANDINI & OTHERS ………………………………….APPELLANT

UNION OF INDIA & OTHERS ……………………..RESPONDENT

MEMORIAL ON BEHALF OF APPELLANT

LIST OF REFERENCES AND CASES ……………………………………………….3-4

STATEMENT OF JURISDICTION …………………………………………………...6

 ISSUE NO. 1…………………………………….........................................12-24

 M P Jain ,Indian Constitutional law

 Roe vs. Wade .410U.S. 113.Supreme Court of United States.1973

ISSUE NO. 1: WHETHER COURT CAN PERMIT THE TERMINATION OF

ISSUE NO.3: WHETHER SECTION 312 INDIAN PENAL CODE, 1860 IS

ISSUE NO. 4: WHETHER OR NOT A WOMEN HAS AN ABSOLUTE RIGHT TO

ISSUE NO. 1: WHETHER COURT CAN PERMIT THE TERMINATION OF

ISSUE NO.3: WHETHER SECTION 312 INDIAN PENAL CODE, 1860 IS

ISSUE NO. 4: WHETHER OR NOT A WOMEN HAS AN ABSOLUTE RIGHT TO

ISSUE NO. 1: WHETHER COURT CAN PERMIT THE TERMINATION OF

It is useful to quote both the sections of IPC

Section 3: When Pregnancies may be terminated by registered medical

CURRENT LEGAL FRAMEWORK OF TERMINATION OF PREGNANCY IN

The current framework of termination of pregnancy is governed by The Medical Termination

The Medical Termination of Pregnancy Act, 1971

3. When pregnancies may be terminated by registered medical practitioners.-

Explanation 1.-Where any pregnancy is alleged by the pregnant woman to

Explanation 2.-Where any pregnancy occurs as a result of failure of any

(3) In determining whether the continuance of a pregnancy would involve such

a) Abortion done in good faith

a) A risk to life of a pregnant woman; or

3. When pregnancies may be terminated by registered medical practitioners50. -

The sex organs of the baby should start to become clear.

heart and blood vessels are fully formed.

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