MEMORIAL ON BEHALF OF THE PETITIONER

TEAM CODE – 41P

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

CONCOURS 2021

BEFORE THE
HON’BLE SUPREME COURT OF THE UNION OF ARTARA

SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE CONSTITUTION OF

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

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

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

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

TABLE OF CONTENT

LIST OF ABBREVIATIONS................................................................................................ 4

INDEX OF AUTHORITIES ................................................................................................. 5

STATEMENT OF JURISDICTION ...................................................................................... 7

STATEMENT OF FACTS .................................................................................................... 8

ISSUES RAISED ................................................................................................................ 10

SUMMARY OF ARGUMENTS ......................................................................................... 11

ARGUMENTS ADVANCED ............................................................................................. 13

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

DHELAPUR IS LIABLE TO BE SET ASIDE. ............................................................... 13

1.1 THE SPECIAL LEAVE PETITION SHOULD BE GRANTED DUE TO THE

QUESTION OF NATURAL JUSTICE. ....................................................................... 13

1.2 THE PARTY SHOULD NOT SUFFER DUE TO THE NEGLIGENCE THE
ADVOCATE. .............................................................................................................. 14

1.3 THE EX PARTE ORDER SHOULD BE SET ASIDE UNDER THE ORDER IX
RULE 6 OF THE CODE OF CIVIL PROCEDURE, 1908 AND THE DELAY SHOULD
BE CONDONED UNDER THE LIMITATION ACT, 1963. ....................................... 15

II. THE DESCISION OF THE NATIONAL DISEASE TRIBUNAL DENYING THE

LIABILITY OF DOCTOR MURLI PRASAD AND CREACH BANDY HOSPITAL FOR
THE VIOLATION OF SECTION 9 OF HIV AIDS ACT, 2017, IS LIABLE TO BE SET
ASIDE. ............................................................................................................................ 17

2.1 THE DISCLOSURE OF THE HIV STATUS IS THE INFRINGEMENT OF THE

RIGHT TO PRIVACY AND CONFIDENTIALITY OF THE PETITIONER. ............. 17

2.2 PROPER PROCEDURE WAS NOT FOLLOWED IN DISCLOSING THE HIV

STATUS OF THE PETITIONER TO HER SPOUSE GIVEN UNDER THE SECTION
9 OF THE HUMAN IMMUNO DEFICIENCY VIRUS AND ACQUIRED IMMUNE
DEFICIENCY SYNDROME (PREVENTION AND CONTROL) ACT, 2017. ............ 19
MEMORIAL ON BEHALF OF THE PETITIONER

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

HOLDING THE DURGA CHARITABLE BLOOD BANK AND DR. RAMADHIR
SINGH LIABLE FOR DEFICIENCY IN SERVICE AND MEDICAL NEGLIGENCE
LIABLE TO BE SET ASIDE. ......................................................................................... 21

3.1 MEDICAL NEGLIGENCE BY DOCTOR IN THE EXERCISE OF

TRANSFUSION OF THE BLOOD. ............................................................................ 21

3.2 NEGLIGENCE IN GETTING PROPER CONSENT FROM THE PETITIONER

22

3.3 DEFICIENCY IN SERVICE BY THE BLOOD BANK. ................................... 22

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

TREATMENT OF A MINOR SUFFERING FROM A RARE DISEASE, WHERE THE
PARENT OF THE CHILD CANNOT AFFORD THE TREATMENT IS IN VIOLATION
OF ARTICLE 21 OF THE CONSTITUTION OF ARTARA. .......................................... 24

4.1 RIGHT TO HEALTH IS A FACET OF THE FUNDAMENTAL RIGHT TO

LIFE GIVEN UNDER THE ARTICLE 21 OF THE CONSTITUTION OF ARTARA. 24

4.2 UNION OF ARTARA IS A WELFARE STATE AND BOUND TO PROVIDE

HEALTH TREATMENT FOR THE WEAKER SECTION OF THE SOCIETY. ......... 27

PRAYER ............................................................................................................................ 28
MEMORIAL ON BEHALF OF THE PETITIONER

LIST OF ABBREVIATIONS

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

INDEX OF AUTHORITIES

Cases

Achutrao Haribhau Khodwa v. State of Maharashtra, 1996 SCC (2) 634. ........................... 22
All India Lawyer Union (Delhi unit) vs. govt. Of NCT of Delhi and ors., 163 (2009) DLT 319
(DB). ............................................................................................................................... 26
Harshad J. Pabari v. State of Gujarat & Others, 2013 SCC OnLine Guj 4394. ................... 20
Jeevan Reddy, J., in R. Rajagopal v. State of T.N., SCC pp. 649-50, 26. .............................. 18
M. Chinnaiyan v. Sri Gokulam Hospital and Anr, III (2007) CPJ 228 NC. .......................... 22
Maneka Gandhi v. The Union of India, 1978 AIR 597. ........................................................ 14
Mohd. Ahmed (Minor) v. Union of India, & Ors., 2014 SCC OnLine Del 1508. .................. 25
Mohinder Singh Gill v. Chief Election Commissioner, 1978 AIR 851. ................................. 13
Oriental Aroma Chemical Industries L.t.d. v. Gujarat Industrial Development Corporation &
A.n.r, (2010) 5 SCC 459. ................................................................................................. 16
Parmanand Katara v. Union of India, 1989 AIR 2039. ....................................................... 26
Paschim Banga Khet Mazdoor Samity & Ors v State of West Bengal & Anor., (1996) 4 SCC
37. ................................................................................................................................... 27
Province of Bombay v. Khushaldas Advani, 1950 AIR 222 ................................................. 13
Puttuswamy v. Union of India, (2017) 10 SCC 1. ................................................................ 18
R v. S.B.K., 2019 SCC OnLine Del 6929. ............................................................................ 15
State (N.C.T of Delhi) v. Ahmed Jaan,, 2008 14 SCC 582.................................................... 16
State of Maharashtra v. Chandrabhan Tale, (1983) 3 SCC 387. .......................................... 25
The Secretary, Department of Horticulture, Chandigarh and Anr. v. Raghu Raj, AIR 2009
SC 514 ............................................................................................................................ 15
V. Kishan Rao v. Nikhil Super Speciality Hospital & Another, (2010) 5 SCC 513................ 21

Statutes

Advocates Act § 49, § 1, § c, (1961). ................................................................................... 14

Bar Council of India Rules § 5, § 6...................................................................................... 14
Code of Civil Procedure § 9, § 13 (1908). ..................................................................... 13, 15
Constitution of Artara. art. 136. ........................................................................................... 14
Constitution of Artara. art. 21. ............................................................................................. 24
Constitution of Artara. art. 38. ............................................................................................. 27
MEMORIAL ON BEHALF OF THE PETITIONER

Constitution of Artara. art. 47. ............................................................................................. 27

Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, § 7, § 14,
(2002). ............................................................................................................................. 19
Standards For Blood Banks & Blood Transfusion Services National AIDS Control
Organisation, §L.5.0 - L.5.2, (2007)................................................................................. 21
The Human Immuno Deficiency Virus and Acquired Immune Deficiency Syndrome
(Prevention and Control) Act § 9, (2017). ........................................................................ 17
The Human Immuno Deficiency Virus and Acquired Immune Deficiency Syndrome
(Prevention and Control) Act § 9, (2017).. ....................................................................... 19
The Indian Medical Council Act (1956). ............................................................................. 17
The International Code of Medical Ethics, (1949). .............................................................. 18
The International Covenant on Economic, Social and Cultural Rights. art. 12. § 1. .............. 26
The Limitation Act § 5, (1963). ........................................................................................... 15
Universal Declaration of Human Rights. art. 25. § 1. ........................................................... 26

Other Authorities

Information Gateway, H.I.V/A.D.S(Jan, 2021, 5:00 PM),

http://hivaidsonline.in/index.php/HIV-Human-Rights/legal-issues-that-arise-in-the-hiv-
context.html. .................................................................................................................... 18
Moot Proposition ¶10. ......................................................................................................... 26
Moot Proposition ¶2. ........................................................................................................... 20
OVERVIEW natural justice, Oxford Reference (Jan, 2021, 5:00 PM),
https://www.oxfordreference.com/view/10.1093/oi/authority.20110803100225319 ......... 13
Rules on Professional Standards, The Bar Council of India (Jan, 2021, 5:00 PM),
http://www.barcouncilofindia.org/about/professional-standards/rules-on-professional-
standards ......................................................................................................................... 14
MEMORIAL ON BEHALF OF THE PETITIONER

STATEMENT OF JURISDICTION

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

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

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

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

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

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

STATEMENT OF FACTS

1. On 23rd October, Mrs. Beena Tripathi was admitted to the Dr. Ramadhir Singh’s
Chirpy Baby Clinic for the delivery of her child. Due to some complications, the
attending physician, Dr. Ramadhir Singh decided to perform Caesarean surgery. Mrs.
Beena delivered a Baby Boy, Phoolchand, but she suffered from postpartum
haemorrhage. Due to excessive blood loss, the doctor decided that to go for the blood
transfusion and asked Mr. Tripathi to arrange for six units of blood which he brought
from Durga Charitable Blood Bank and handed it to Dr. Singh along with a certificate
of the blood’s suitability for transfusion. Dr. Singh noticed that the label above the bag
was missing but due to shortage of time he went ahead.
2. Few weeks after, when she was had boils on her skin and stool and urine infection, so
she consulted, Dr. Murli Prasad from Creach Bandy Hospital. Dr. Prasad asked her to
undergo ELISA test, in which she was tested HIV positive, and her son Phoolchand,
was too tested HIV positive in similar test. Mrs. Tripathi asked the hospital authorities
not to inform her husband as she will do it at the right time but the hospital authorities
informed his husband, which created a bad impression of her, and Mr. Tripathi filed for
divorce in the Family Court of Dhelapur. The court granted the divorce, but during the
proceedings for maintenance in court Mrs. Beena and her advocated were absent due
to which court passed an ex-parte order and against which Mrs. Beena filed a Special
Leave Petition under article 136.
3. Mrs. Beena also filed a complaint before ombudsman appointed under HIV and AIDS
(Prevention and Control) Act 2017, for the violation of Section 9 of the Act by Dr.
Murli Prasad and Creach Bandy Hospital. She claimed that the act of hospital informing
her husband about her HIV status created a bad impression of her on his husband and
due to which he filed a divorce. While hospital argued that they informed his husband
to prevent the spread of disease and his husband filing a divorce is exercising his legal
right. The ombudsman decided in the favour of Beena and ordered hospital to pay Rs.
10 Lakh rupees as a damage to which Hospital appealed in the National Disease
Tribunal which overturned the decision and decide it in favour of hospital authorities.
Now, Mrs. Beena has filed a civil before the Hon’ble Supreme Court of Artara.
4. Mrs. Beena also filed a complaint against Durga Charitable Blood Bank for selling HIV
infected blood without proper labelling the blood bag and against doctor for not testing
MEMORIAL ON BEHALF OF THE PETITIONER

the blood as the label was missing and not obtaining a consent for the same as she was
not informed of the risk involved in blood transfusion, before the State Consumer
Dispute Redressal Commission, Wasseypur. Before, SCDRC blood bank and hospital
stated the possibility of Mr. Tripathi be the carrier for the virus and contended that
paternity test should be done for the same. It was also averred that if the HIV was caused
because of infected blood, blood bank can’t be held liable as they took all the necessary
precautions. Dr. Ramadhir contented that in postpartum haemorrhage blood transfusion
was only option and filling the consent form before surgery, the complainant has given
his consent for the same.
5. The SCDRC held blood bank liable for deficiency in service under the Consumer
Protection Act, and also stated that Dr. Ramadhir failed to obtain a valid consent which
and the act of blood transfusion to the complainant was an unauthorized act amounting
to a tortious act of assault and battery. The SCRDC directed doctor to pay Rs. 18 Lakh
towards the expenses claimed for the medical treatment of the complainant and her son.
An appeal was filed before the National Commission Dispute Redressal Commission
against the order of SCDRC. NCDRC reversed the findings of the SCDRC and against
this Mrs. Beena filed a petition under Section 23 of the Consumer Production Act in
the Hon’ble Supreme Court of Artara.
6. Meanwhile, Phoolchand was diagnosed with Duchenne Muscular Dystrophy (DMD), a
fatal disease in which all the voluntary muscles of the body are weakened. The only
available therapy is Antisense Oligonucleotide, which involves a drug named ‘Exondys
51’, the patients receiving this treatment have a high chance of surviving, however, this
treatment is lifelong and expensive. As Mrs. Beena was incapable of arranging money
for his treatment, she availed the financial assistance from Wasseypur Arogya Kosh of
state government under which Rs. 6 lakhs were released, however annual cost of the
treatment is Rs. 25 lakhs so she sought aid under Rashtriya Arogya Nidhi Scheme from
the Central Government. Due to lack of funds, central government can’t provide more
than Rs. 2 lakhs. With no support from her husband and no other option left, Mrs.
Beena, on behalf of Phoolchand, filed a writ petition under Article 32 of the
Constitution of, before the Hon’ble Supreme Court stating that the Central Government
and the Government of Wasseypur were obligated under Article 21 of the Constitution
and Directive Principles of State Policies to provide totally free treatment to the
petitioner and like patients.
MEMORIAL ON BEHALF OF THE PETITIONER

ISSUES RAISED

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

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

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

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

SUMMARY OF ARGUMENTS

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

COURT, DHELAPUR IS NOT LIABLE TO BE SET ASIDE ON THE
GROUND OF NEGLIGENCE OF THE ADVOCATE AND INNOCENCE
OF THE PARTY.

The negligence of advocate is a valid cause of condonation of. Mrs. Beena

was not aware of the ex parte order due the negligence of advocate. Additionally,
owing to the current circumstances and medical condition of Mrs. Beena and her
newborn baby it is in the interest of justice to set the ex parte order aside.

II. THE DECISION OF THE NATIONAL DISEASE TRIBUNAL DENYING

THE LIABILITY OF DOCTOR MURLI PRASAD AND CREACH BANDY
HOSPITAL FOR THE VIOLATION OF SECTION 9 OF HIV AIDS ACT,
2017, IS LIABLE TO BE SET ASIDE

The disclosure of the HIV status of the petitioner is a violation of Section

9(1)(c) and 9(1)(d) of HIV and AIDS Act, 2017; the guidelines given for the
disclosure of information have been violated. The disclosure of information has
also breached the right of privacy of Mrs. Beena given in Art. 21 of the
constitution.

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

HOLDING THE DURGA CHARITABLE BLOOD BANK AND DR.
RAMADHIR SINGH LIABLE FOR DEFICIENCY IN SERVICE AND
MEDICAL NEGLIGENCE LIABLE TO BE SET ASIDE.

It is humbly submitted before the hon’ble Supreme Court of Artara that the
decision of the National Disease Tribunal denying the liability of Doctor Murli
Prasad and Creach Bandy Hospital is liable to be set aside as the disclosure of HIV
positive status of the petitioner is in the violation of section 9 of HIV AIDS Act,
MEMORIAL ON BEHALF OF THE PETITIONER

2017. Furthermore, the revelation has also infringed the Right to Privacy and
Confidentiality of the plaintiff.

IV. WHETHER THE CENTRAL AND STATE GOVERNMENT’S REFUSAL

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

The act of the central government of denying medical aid for the treatment
of Phoolchand is a violation of Art 21 of the Constitution which also includes the
right to health as mentioned in various case laws. Additionally, the lack of
financial resources on part of the government does not render the liability under
Art 21 void.
MEMORIAL ON BEHALF OF THE PETITIONER

ARGUMENTS ADVANCED

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

DHELAPUR IS LIABLE TO BE SET ASIDE.

It is humbly submitted before the hon’ble Supreme Court of Artara that the ex
parte order issued by the Family Court of Dhelapur should be set aside under the Order
IX Rule 13 of the Code of Civil Procedure, 19081, owing to the innocence of the party
and the negligence of her lawyer. It is also to be notes that the ex parte order was passed
with following the proper procedure given under the Order IX Rule 6 of the Code of
Civil Procedure, 19082.

1.1 THE SPECIAL LEAVE PETITION SHOULD BE GRANTED DUE TO

THE QUESTION OF NATURAL JUSTICE.

It is humbly submitted before the hon’ble SC of Artara that the first rule
of natural justice is, “Audi Alteram partem” or the hearing rule, which states
that the person or party who is affected by the decision made by the panel of
expert members should be given a fair opportunity to express his point of view
to defend himself. 3
In the case of Mohinder Singh Gill v. Chief Election Commissioner4, the
court held that the concept of fairness should be in every action whether it is
judicial, quasi-judicial, administrative and or quasi-administrative work.
In the case of the Province of Bombay v. Khushaldas Advani5, it was
said that, “natural justice will be applicable on statutory as it is a basic principle
of Natural justice which leads to fairness and justice.”

1
Code of Civil Procedure § 9, § 13 (1908).
2
Id.
3
OVERVIEW natural justice, Oxford Reference (Jan, 2021, 5:00 PM),
https://www.oxfordreference.com/view/10.1093/oi/authority.20110803100225319.
4
Mohinder Singh Gill v. Chief Election Commissioner, 1978 AIR 851.
5
Province of Bombay v. Khushaldas Advani, 1950 AIR 222.
MEMORIAL ON BEHALF OF THE PETITIONER

The Constitution of Artara under Article 136 vests the Supreme Court
of Artara, the apex court of the country, with a special power to grant special
leave, to appeal against any judgment or order or decree in any matter or cause,
passed or made by any Court/tribunal in the territory of India 6. The power grant
a Special Leave Petition is part of Residuary Power of the hon’ble and its
admission is solely based on the discretion of the hon’ble court.
In the case, Maneka Gandhi v. The Union of India 7, it has been held that
the law and procedure must be of a fair, just and reasonable kind.
In the present case, there is a serious question of law, and violation of
the natural justice and right to be heard as there was negligence by the advocate
of the party and the petitioner was unaware regarding the proceedings and
nuances of the judicial procedures, hence the petitioner should not suffer due to
the negligence of the advocate.

1.2 THE PARTY SHOULD NOT SUFFER DUE TO THE NEGLIGENCE

THE ADVOCATE.

It is humbly submitted before the hon’ble SC of Artara that the advocate

of the party, by not informing the party regarding the maintenance proceedings
in the family court has breached the rule 12 and 15 mentioned in section 2 (duty
towards the client) of the Chapter II, Part VI of the Bar Council of India Rules8.
These rules have been placed there under section 49(1)(c) of the Advocates Act,
19619.
The rule 12 states that, “An advocate should not ordinarily withdraw
from serving a client once he has agreed to serve them. He can withdraw only
if he has a sufficient cause and by giving reasonable and sufficient notice to the
client.”10 In the present case the, the advocate neither informed the plaintiff

6
Constitution of Artara. art. 136.
7
Maneka Gandhi v. The Union of India, 1978 AIR 597.
8
Bar Council of India Rules § 5, § 6.
9
Advocates Act § 49, § 1, § c, (1961).
10
Rules on Professional Standards, The Bar Council of India (Jan, 2021, 5:00 PM),
http://www.barcouncilofindia.org/about/professional-standards/rules-on-professional-
standards.
MEMORIAL ON BEHALF OF THE PETITIONER

regarding his absence nor made her aware to be present before the court on the
day of hearing. Hence, it a violation of the rules given in the said act.
The rule 15 states that, “It shall be the duty of an advocate fearlessly to
uphold the interests of his client by all fair and honourable means.” 11 However
in the present case the, rather than upholding the interest of the party, the
advocate was so negligent that he didn’t even bother to inform the party
regarding the hearing date and his absence from the court on the hearing date in
the hon’ble court.
In the case of The Secretary, Department of Horticulture, Chandigarh
and Anr. v. Raghu Raj12, it was held by the hon'ble Apex Court that, "Even if
there is default on the part of advocate in not appearing at the time of hearing,
Appellant shall not suffer injustice." Similarly, in the present case the party
shouldn’t face injustice and get a chance to represent itself before the court of
law.
In the case of, R v. S.B.K.13, the hon’ble court set aside an ex parte
divorce decree was passed against the wife by the Family Court. Advocates for
the wife contended that she had instructed the previous counsel to prosecute the
case on her behalf, but he was not diligent in doing so.

1.3 THE EX PARTE ORDER SHOULD BE SET ASIDE UNDER THE

ORDER IX RULE 6 OF THE CODE OF CIVIL PROCEDURE, 1908 AND
THE DELAY SHOULD BE CONDONED UNDER THE LIMITATION
ACT, 1963.

It is humbly submitted before the hon’ble SC of Artara that According

to Order IX Rule 13 of the Code of Civil Procedure, 190814, Where enough
cause is shown, the decree shall have to be set aside. Other than that the Section

11
Id.
12
The Secretary, Department of Horticulture, Chandigarh and Anr. v. Raghu Raj, AIR 2009
SC 514.
13
R v. S.B.K., 2019 SCC OnLine Del 6929.
14
Code of Civil Procedure § 9, § 13 (1908).
MEMORIAL ON BEHALF OF THE PETITIONER

5 of the Limitation Act, 196315, states that, “Any appeal or any application, other
than an application under any of the provisions of Order XXI of the Code of
Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period,
if the appellant or the applicant satisfies the court that he had sufficient cause
for not preferring the appeal or making the application within such period.”

In the present case, the petitioner was going through a very difficult
phase in life due to recent escalation of events in her personal life which
included her physical wellbeing due to recent delivery of her child and diagnosis
HIV AIDS and the mental pressure attached to it due to societal stigma.
Furthermore, she also faced successful divorce charges by her spouse which
aggravated the mental shock and trauma of the petitioner. Therefore, she
couldn’t catch up with the proceedings of court and left everything on her
negligent advocate. Hence the delay in filing the application should be
condoned under the Section 5 of the Limitation Act, 1963 and the ex parte order
should be set aside under the Order IX Rule 13 of the Code of Civil Procedure,
1908, due to the mental trauma and physical wellbeing of the petitioner,
accompanied with the negligence of the advocate.

In the case of, State (NCT Of Delhi) v. Ahmed Jaan16, it was held by the
hon’ble court that the expression "sufficient cause" should receive a liberal
construction; hence it is submitted before the court that pertaining to the
circumstances of the petitioner the ex parte decree be set aside.

In the case of, Oriental Aroma Chemical Industries Ltd. v. Gujarat

Industrial Development Corporation & Anr17 , it was held by the hon’ble court
that, “The expression “sufficient cause” employed in Section 5 of the Limitation
Act, 1963 and similar other statutes is elastic enough to enable the courts to
apply the law in a meaningful manner which subserves the ends of justice.
Although, no hard-and-fast rule can be laid down in dealing with the

15
The Limitation Act § 5, (1963).
16
State (N.C.T of Delhi) v. Ahmed Jaan,, 2008 14 SCC 582.
17
Oriental Aroma Chemical Industries L.t.d. v. Gujarat Industrial Development Corporation
& A.n.r, (2010) 5 SCC 459.
MEMORIAL ON BEHALF OF THE PETITIONER

applications for condonation of delay, this Court has justifiably advocated

adoption of a liberal approach in condoning the delay.”

. Hence the delay in filing the application should be condoned under the
Section 5 of the Limitation Act, 1963 and the ex parte order should be set aside
under the Order IX Rule 13 of the Code of Civil Procedure, 1908, due to the
mental trauma and physical wellbeing of the petitioner, accompanied with the
negligence of the advocate

II. THE DESCISION OF THE NATIONAL DISEASE TRIBUNAL DENYING THE

LIABILITY OF DOCTOR MURLI PRASAD AND CREACH BANDY
HOSPITAL FOR THE VIOLATION OF SECTION 9 OF HIV AIDS ACT, 2017,
IS LIABLE TO BE SET ASIDE.

It is humbly submitted before the hon’ble Supreme Court of Artara that the
decision of the National Disease Tribunal denying the liability of Doctor Murli Prasad
and Creach Bandy Hospital is liable to be set aside as the disclosure of HIV positive
status of the petitioner is in the violation of section 9 of HIV AIDS Act, 201718.
Furthermore, the revelation has also infringed the Right to Privacy and Confidentiality
of the plaintiff.

2.1 THE DISCLOSURE OF THE HIV STATUS IS THE INFRINGEMENT

OF THE RIGHT TO PRIVACY AND CONFIDENTIALITY OF THE
PETITIONER.

It is humbly submitted before the SC of Artara that, the patient’s

confidentiality regarding his/her treatment is of vital importance and should be
protected. It is the right of an individual that his/her personal and medical
information is kept private or confidential. Such delicate and confidential
information about the individual should only be in between him and the doctor,
physician, healthcare or health insurance company

18
The Human Immuno Deficiency Virus and Acquired Immune Deficiency Syndrome
(Prevention and Control) Act § 9, (2017).
MEMORIAL ON BEHALF OF THE PETITIONER

Doctor patient confidentiality is held to be one of the sacrosanct rights

according to the Hippocratic Oath and it is codified in India in the form of the
Code of Medical Ethics by the Indian Medical Council under the Indian Medical
Council Act, 1956.19 It bases itself on the International Code of Medical
Ethics.20 That right is that a doctor can not divulge details of the patients being
treated by him even after his death except in a court of law.

By disclosing the HIV positive status of the petitioner, the doctor has
violated the Fundamental Right to privacy and confidentiality of the petitioner,
given under the Articles 14, 19 and 21.

In the case of Puttuswamy v. Union of India,21, the hon'ble SC held that

the right to privacy is a fundamental right that does not need to be separately
articulated but can be derived from Articles 14, 19 and 21 of the Constitution of
India.

In another classic judgment, Jeevan Reddy, J., in R. Rajagopal v. State

of T.N.,22 it was held that by the hon’ble court that,

“The right to privacy is implicit in the right to life and liberty

guaranteed to the citizens of this country by Article 21. It is a 'right to be let
alone'. A citizen has a right to safeguard the privacy of his own, his family,
marriage, procreation, motherhood, childbearing and education among other
matters. None can publish anything concerning the above matters without his
consent – whether truthful or otherwise and whether laudatory or critical.”

The medical information of the patient given to a health care provider

shall not be divulged to others unless the patient gives his consent to disclose
such information to others. The confidentiality of a patient should be maintained
because the communication of personal information or records may create
personal or professional problems while the patients depend on doctors to keep
their medical information private. The right to privacy is considerably essential

19
The Indian Medical Council Act (1956).
20
The International Code of Medical Ethics, (1949).
21
Puttuswamy v. Union of India, (2017) 10 SCC 1.
22
Jeevan Reddy, J., in R. Rajagopal v. State of T.N., SCC pp. 649-50, 26.
MEMORIAL ON BEHALF OF THE PETITIONER

for persons living with HIV/AIDS due to the potential stigmatizing and
discriminatory impact.23

However, in the present case the HIV status of the petitioner was
revealed without her consent, despite being aware, about the stigma and
discrimination attached to it. It is also violative of the chapter 7- (7.14) Indian
Medical Council (Professional Conduct, Etiquette and Ethics) Regulations,
200224, which states that, “the registered medical practitioner shall not divulge
any of the secrets of a patient that have been acquired in the exercise of his/her
professional skill or while conducting the treatment.”

2.2 PROPER PROCEDURE WAS NOT FOLLOWED IN DISCLOSING THE

HIV STATUS OF THE PETITIONER TO HER SPOUSE GIVEN UNDER
THE SECTION 9 OF THE HUMAN IMMUNO DEFICIENCY VIRUS
AND ACQUIRED IMMUNE DEFICIENCY SYNDROME
(PREVENTION AND CONTROL) ACT, 2017.

It is humbly submitted before the hon'ble SC of Artara that there are few
guidelines mentioned in the Section 9 of the Human Immuno Deficiency Virus
and Acquired Immune Deficiency Syndrome (prevention and control) act,
2017.25

"Provided that disclosure under this section to the partner shall be made
in person after counselling;"

"Provided further that such healthcare provider shall not inform the
partner of a woman where there is a reasonable apprehension that such
information may result in violence, abandonment or actions which may have a

23
Information Gateway, H.I.V/A.D.S(Jan, 2021, 5:00 PM),
http://hivaidsonline.in/index.php/HIV-Human-Rights/legal-issues-that-arise-in-the-hiv-
context.html.
24
Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, § 7, §
14, (2002).
25
The Human Immuno Deficiency Virus and Acquired Immune Deficiency Syndrome
(Prevention and Control) Act § 9, (2017)..
MEMORIAL ON BEHALF OF THE PETITIONER

severe negative effect on the physical or mental health or safety of such woman,
her children or someone close to her."

However, in the present case the communication of the HIV positive

status to the petitioner’s spouse was made without proper counselling of the
spouse. Furthermore, the communication was made at the time when the
petitioner delivered a child and was not in sound health. Other than that, there
have been personal issues between the among them regarding an abortion in the
past, " The rough patch in their relationship began in the second year of their
marriage, when Beena had an abortion without the consent of her husband.
Things got so bitter at the time that Mr. Tripathi threatened to press cruelty
charges against Beena."26 Owing to this, she asked the doctor not to inform her
spouse and she would inform him at the right time, as she knew the situation
between them, which the doctor did not understand. The revelation was
detrimental for her as her spouse got the news from the hospital authorities and
not from her, a bad impression was created in the mind of her husband that she
was not going to tell him and that she wanted to infect him as well. This led to
her divorce and a mental injury was caused to her as well as her child in the
form of abandonment.

In the case of Harshad J. Pabari v. State of Gujarat & Others, 27 it was

held that, "the doctors are the first, and sometimes the only, people who are
informed of their patients' HIV status, doctors should be able to counsel them
about their basic social and legal rights and responsibilities or should refer
them to the counsellors who specialize in the rights of persons living with
HIV/AIDS. Fear of stigma and discrimination, more particularly in a country
like India where almost 30% of the population is illiterate, is a driving force
behind the spread of HIV/AIDS. The social and economic repercussions of
being identified as infected can be devastating and can include violence,
rejection by family and community members, loss of housing and loss of
employment, to name only a few."

26
Moot Proposition ¶2.
27
Harshad J. Pabari v. State of Gujarat & Others, 2013 SCC OnLine Guj 4394.
MEMORIAL ON BEHALF OF THE PETITIONER

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

HOLDING THE DURGA CHARITABLE BLOOD BANK AND DR.
RAMADHIR SINGH LIABLE FOR DEFICIENCY IN SERVICE AND
MEDICAL NEGLIGENCE LIABLE TO BE SET ASIDE.

It is humbly submitted before the hon’ble Supreme Court of Artara that the
NCDRC order revising the decision of the SCDRC of holding the Durga Charitable
Blood Bank and Dr. Ramadhir Singh liable, should be se aside for deficiency in service
and medical negligence. Moreover, the Dr. gave the blood transfusion without
obtaining the consent of the patient.

3.1 MEDICAL NEGLIGENCE BY DOCTOR IN THE EXERCISE OF

TRANSFUSION OF THE BLOOD.

It is humbly submitted before the hon’ble SC of Artara that, Medicine is

such a profession where a practitioner is supposed to have requisite knowledge
and skill needed for the purpose and has a duty to exercise reasonable duty of
care while dealing with the patient.

According to the guidelines for blood transfusion given by NACO, “it

is required to check the blood group on the label and that of the recipient before
administration but in the present case the label of one of the blood bags was
missing but Dr. Singh transfused the blood without testing it”28

Because only one blood bag had a missing label, Dr. Singh had enough
time to test the blood before administering it to Mrs. Beena but he didn't which
is a case of blatant negligence on his part.

In the case of V. Kishan Rao v. Nikhil Super Speciality Hospital &

Another29, The SC observed that one of the duties of doctor is duty of care to
decide what treatment is to be given and also duty to take care in the

28
Standards For Blood Banks & Blood Transfusion Services National AIDS Control
Organisation, §L.5.0 - L.5.2, (2007).
29
V. Kishan Rao v. Nikhil Super Speciality Hospital & Another, (2010) 5 SCC 513.
MEMORIAL ON BEHALF OF THE PETITIONER

administration of the treatment. A breach of any of those duties may lead to an

action for negligence by the patient.

In Achutrao Haribhau Khodwa v. State of Maharashtra 30, the court

noticed that negligence cannot be attributed to a doctor as long as he is
performing his duties with due care and caution.

However, in the present case Dr. Singh’s actions were negligent and not
in accordance with the standard procedure.

3.2 NEGLIGENCE IN GETTING PROPER CONSENT FROM THE

PETITIONER

In the case of M. Chinnaiyan v. Sri Gokulam Hospital and Anr31, the

court declared that “consent of the patient is required for transfusion of blood….
Surgery carries risks, but blood transfusion carries additional risk.” In the
present case no, additional consent was taken from Mrs. Beena.

Additionally, the consent for an operation includes the complications

that might come up in the process of the procedure, but it is presumed in the
consent that the procedure will be performed with utmost care and caution.

3.3 DEFICIENCY IN SERVICE BY THE BLOOD BANK.

It is humbly submitted before the honourable court that the blood bank
was deficient it isn't services and provided blood infected with HIV which led
to Mrs. Beena getting diagnosed with HIV. Due to the negligence of the Blood
bank in prior testing of the blood before dispatching it added to the
circumstances which led to the transfusion of blood affected with HIV.
According to the Drugs and Cosmetics Rules, 1945, “every licensee of a blood

30
Achutrao Haribhau Khodwa v. State of Maharashtra, 1996 SCC (2) 634.
31
M. Chinnaiyan v. Sri Gokulam Hospital and Anr, III (2007) CPJ 228 NC.
MEMORIAL ON BEHALF OF THE PETITIONER

bank to get samples of every blood unit tested for freedom from HIV antibodies,
which the blood bank had failed to do.”32

According to the clause D-5.3 of Standards for Blood Banks & Blood
Transfusion Services given National AIDS Control Organisation (NACO),
“blood units collected should be tested for HIV 1&2 antibodies using
ELISA/Rapid which is a validated method. Any alternative technology with
similar or higher sensitivity may be used.”33

However, in the present case the blood wasn’t tested for HIV antibodies
and it spread to the petitioner.

32
Drugs and Cosmetics Rules, (1945).
33
Standards For Blood Banks & Blood Transfusion Services National AIDS Control
Organisation, § D-5.3, (2007).
MEMORIAL ON BEHALF OF THE PETITIONER

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

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

It is humbly submitted before the hon’ble Supreme Court of Artara that the
Union of Artara and the State of Wasseypur cannot refuse to provide free treatment to
a minor suffering from a rare disease, where the parent of the minor cannot provide the
treatment, owing to parent’s weak financial condition and humongous expense of the
treatment. Both the Central Government and Government of Wasseypur are obligated
under the Article 21 of the Constitution of Artara and the Directive Principles of State
Policy, mentioned in the Article 47 of the Constitution of Artara to provide treatment
to the minor.

4.1 RIGHT TO HEALTH IS A FACET OF THE FUNDAMENTAL RIGHT

TO LIFE GIVEN UNDER THE ARTICLE 21 OF THE CONSTITUTION
OF ARTARA.

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

the Article 21 of the Constitution of Artara casts an obligation on the State to
preserve life. Article 21 reads as under:

“Protection of life and personal liberty. —No person shall be deprived

of his life or personal liberty except according to procedure established by
law."34

The hon’ble Supreme Court in a catena of cases has held that right to
health and medical care is a fundamental right under Article 21 read with
Articles 39(e), 41 and 43. It has further held that self-preservation of one's life
is the necessary concomitant of the right to life enshrined in Article 21,
fundamental in nature, sacred, precious and inviolable.

34
Constitution of Artara. art. 21.
MEMORIAL ON BEHALF OF THE PETITIONER

In the case, State of Maharashtra v. Chandrabhan Tale35, it was held by

the hon’ble Supreme Court that, “right to life, enshrined in Article 21 means
something more than survival or animal existence. It includes all those aspects
of life which go to make a man's life meaningful, complete and worth living.
That which alone can make it possible to live must be declared to be an integral
component of the right to life.”

Similarly, in the present case, the treatment of the rare disease called
Duchenne Muscular Dystrophy (DMD) in the form of therapy known as
Antisense Oligonucleotide (AON) is can alone make it possible for the minor
to live. Hence it is an integral component of Right to Life and should be
provided the Government.

In the case of Mohd. Ahmed (Minor) v. Union of India & Ors.36, 2014
SCC OnLine Del 1508, the hon’ble court held that, “Just because someone is
poor, the State cannot allow him to die. In fact, Government is bound to certify
that poor and weak sections of society have right to use the treatment for rare
and chronic diseases.” The concern that comes up for consideration in the Case
was whether a minor child born to parents belonging to economically weaker
section of the society suffering from a chronic and rare disease, gaucher, is
entitled to free medical treatment costing about rupees six lakhs per month
especially when the healing is known, diagnosis is good and there is every
likelihood of petitioner leading a normal life.

Similarly, in the present case, the minor is suffering from a rare disease
called Duchenne Muscular Dystrophy (DMD), the available therapy known as
Antisense Oligonucleotide (AON) is can alone make it possible for the minor
to live, the total expenditure of the treatment is however very costly at around
Rs. 25 Lakh for a year.

The human right to health is also recognised in numerous international

instruments.

35
State of Maharashtra v. Chandrabhan Tale, (1983) 3 SCC 387.
36
Mohd. Ahmed (Minor) v. Union of India, & Ors., 2014 SCC OnLine Del 1508.
MEMORIAL ON BEHALF OF THE PETITIONER

Article 25.1 of the Universal Declaration of Human Rights affirms:

"Everyone has the right to a standard of living adequate for the health of himself
and of his family, including food, clothing, housing and medical care and
necessary social services".37

The International Covenant on Economic, Social and Cultural Rights

provides the most comprehensive article on the right to health in international
human rights law. In accordance with Article 12.1 of the Covenant, States
parties recognise “the right of everyone to the enjoyment of the highest
attainable standard of physical and mental health”38

In the case of, All India Lawyer Union (Delhi unit) v. govt. Of N.C.T of
Delhi and ors.39. It was held by the hon’ble SC held that, “if the treatment is
available in the country. The Central government and the State government is
obligated under Article 21 of the Constitution of Artara to provide totally free
treatment to the petitioner.”

In the present case, the treatment of Duchenne Muscular Dystrophy

(DMD), is available in Artara and approved by the Central Drug Standard
Control Organization.

“The available therapy in the global market is called Antisense

Oligonucleotide (AON). An antisense therapy involving the drug ‘Exondys 51’,
manufactured and supplied by Sarepta Therapeutics, USA, is available in
Artara and approved by the Central Drug Standard Control Organization.”40

In the case, Parmanand Katara v. Union of India41, the hon’ble SC

recognized the obligation of the Government to preserve life. While interpreting
the ambit of the right to life under Article 21 of the Constitution, the SC held
that, “Article 21 of the Constitution casts the obligation on the State to preserve
life of its citizens. The obligation being total, absolute and paramount, laws of

37
Universal Declaration of Human Rights. art. 25. § 1.
38
The International Covenant on Economic, Social and Cultural Rights. art. 12. § 1.
39
All India Lawyer Union (Delhi unit) vs. govt. Of NCT of Delhi and ors., 163 (2009) DLT
319 (DB).
40
Moot Proposition ¶10.
41
Parmanand Katara v. Union of India, 1989 AIR 2039.
MEMORIAL ON BEHALF OF THE PETITIONER

procedure whether in statutes or otherwise which would interfere with the

discharge of this obligation cannot be sustained and must, therefore, give way."

4.2 UNION OF ARTARA IS A WELFARE STATE AND BOUND TO

PROVIDE HEALTH TREATMENT FOR THE WEAKER SECTION OF
THE SOCIETY.

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

the Article 38 of the Constitution of Artara defines the Artara as a welfare state,
it says that,

“Promote the welfare of the people by securing a social order

through justice—social, economic and political—and to minimise inequalities
in income, status, facilities and opportunities” 42

This obligation is further reinforced under Article 47, “it is for the
state to secure health to its citizen as its primary duty.”43

In the case, Paschim Banga Khet Mazdoor Samity & Ors v. State of West Bengal
& Anor. 44, the hon’ble Supreme Court observed that the obligation to provide
medical care was an obligation of the welfare state and the Constitution
envisages the establishment of a welfare State at the federal level as well as at
the State level.

Similarly, in the present case the Government, being a welfare state

is under the obligation of providing treatment to the petitioner.

42
Constitution of Artara. art. 38.
43
Constitution of Artara. art. 47.
44
Paschim Banga Khet Mazdoor Samity & Ors v State of West Bengal & Anor., (1996) 4
SCC 37.
MEMORIAL ON BEHALF OF THE PETITIONER

PRAYER

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

In the case of Beena Tripathi v Akhandanand Tripathi:

The ex parte order of the Principal Judge, Family Court, Dhelapur is liable to be set aside on
the ground of negligence of the advocate and innocence of the party.

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

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

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

The NCDRC order reversing the decision of the SCDRC of holding the Durga Charitable Blood
Bank and Dr. Ramadhir Singh liable for deficiency in service and medical negligence is liable
to be set aside.

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

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

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

SD/-

Counsel for Petitioner