1

TEAM CODE : 8
____________________________________________________________________________

BEFORE THE HONORABLE SUPREME COURT OF

ESTANCIA
______________________________________________________________________

IN THE MATTER BETWEEN

Mrs. ANANDHI …………………………………………………..PETITIONER

V.

REPUBLIC OF ESTANCIA ……………………………………….RESPONDENT

_______________________________________________________________________

MOST RELEVANTLY SUBMITTED BEFORE THE HONORABLE SUPREME COURT

MEMORANDUM ON BEHALF OF THE RESPONDENT

________________________________________________________________

COUNCIL ON BEHALF OF THE RESPONDENT

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TABLE OF CONTENTS

Sr. No Particulars Page No.

1. Table of content 2

2. Index of Abbreviations 3

3. Index of Authorities 5

4. Statement of jurisdiction 8

5. Statement of fact 9

6. Statement of issue 10

7. Summary of argument 11

8. Argument advanced 13

9. Prayer 24
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INDEX OF ABBREVIATIONS

S.No ABBREVIATION FULL FORM

& AND
1.

ALL INDIA REPORTER

2. AIR

3. Annex. ANNEXURE

Anr. ANOTHER
4.

ARTICLE
5. Art.

6. Commr. COMMISSIONER

CORPORATION
7. Corpn.

CRIMINAL APPEAL
8. CA

9. Ed. EDITION

10. GOVERNMENT
Govt.
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11. HC HIGH COURT

12. HONORABLE
Hon’ble

13. INDIAN PENAL CODE

IPC

14. No. NUMBER

15. NAMELY
Viz.

16. OTHERS
Ors.

17. ¶ PAGE

18. Pvt. Ltd. PRIVATE LIMITED

19. READ WITH

r/w

20. SCC SUPREME COURT CASES

21. SUPREME COURT REPORTER

SCR

22. Supp. SUPPLEMENT

23. SC SUPREME COURT

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24. SECTION
Sec

25. i.e THAT IS

26. UNDER SECTION

U/S

27. UNION OF INDIA

UOI

28. V./Vs. VERSUS

29. WITH RESPECT TO

w.r.t

30. MEDICAL TERMINATION OF PREGNANCY

MTP

INDEX OF AUTHORITIES

BOOKS REFERRED

S.No PARTICULARS

1. INTRODUCTION TO THE CONSTITUTION OF INDIA- by DD Basu

2. CONSTITUTION OF INDIA by- Dr.Subhash C.Kashyap

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3. PREGNANCY AND LAWS 2021- Mudit Bhardwaj

STATUTES REFERRED

S.No PARTICULARS

1. CONSTITUTION OF INDIA

2. MEDICAL TERMINATION OF PREGNANCY ACT 1971

3. INDIAN PENAL CODE, 1860

4. THE TRANSFER OF PROPERTY, 1882

5. THE HINDU SUCCESSION ACT, 1956

WEBSITES REFERRED

S.No PARTICULARS

1. https://indiankanoon.org/doc/170570619/
 7

2. www.octopus.com

3. www.lexisnexis.com

4. www.mupratafast.com

5. www.cpwd.gov.in

CASES CITED

S.No PARTICULARS

1. Anil Kumar Malhotra v. Ajay Pasricha

2.
Prakash & Ors vs Arun Kumar Saini & Anr

3. Nand Kishore Sharma and Ors. vs Union Of India (Uoi) And Anr

4. Suresh Kumar Koushal and Anr. v. Naz Foundation and Anr

5 DR Mangla Dogra and Ors Vs Anil Kumar Malhotra and Ors

 8

STATEMENT OF JURISDICTION

The Petitioner humbly submitted to the jurisdiction of this Hon’ble Supreme Court of Republic
of Estancia under Art.32 of the Constitution. The petitioner has approached this cout in
apprehension of the violation of right to life, privacy and termination of her pregnancy. The
Hon’ble court has the jurisdiction to try, entertain and dispose of the present writ petition. The
respondents respectfully submit to this jurisdiction invoked by the petitioners.

Article 32(2) of Republic of Estancia:

Remedies for enforcement of rights conferred by this Part
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in
the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may
be appropriate, for the enforcement of any of the rights conferred by this Part
 9

STATEMENT OF FACTS

The Republic of Estancia is the second most densely populated country in the world. The
Constitution of Estancia guarantees several fundamental rights to its citizens, including the right
to equality, right to freedom of movement and right to life and personal liberty. Among these
rights, the right to life and personal liberty is one of the most important rights enjoyed by the
citizens of Estancia. Mrs. Anandhi is a 26 year old woman with high ambitions. She married Mr.
Kaushik in the year 2020. Kaushik and Anandhi, both being software engineers, work in an
MNC. In 2022, Anandhi became pregnant with their first child and the couple were happy and
excited about the pregnancy. A few weeks after the news of her pregnancy, Anandhi received a
wonderful job offer to work onsite in the United States of America. However, considering she
was 20 weeks pregnant, her family asked her to decline the job offer.

But Anandhi being an ambitious young lady believed that such an offer with its added career
prospects was rare to come by and hence decided to terminate her pregnancy in order to take up
the job offer and fulfill her dream of achieving career progression by working abroad. Towards
this end, she approached Dr. Madhav Mishra, Chief Gynecologist at City Hospital to terminate
her pregnancy. Dr. Madhav Mishra refused to terminate her pregnancy as it was in violation of
the Medical Termination Pregnancy Act, 1971.

Anandhi was deeply saddened as she was unable to exercise her personal liberty and take up her
dream job. Therefore, she filed a Writ Petition before the Supreme Court of Estancia, challenging
the Constitutional validity of the Medical Termination of Pregnancy Act 1971 and the relevant
provisions of the Estancia Penal Code, emphasizing that the right to give birth or not is an
exclusive right vested with the mother by way of fundamental rights, including the right to life
and personal liberty, which is guaranteed by the Constitution of Estancia.
 10

STATEMENT OF ISSUES

1. Whether a woman has rights under the Constitution to retain or terminate her pregnancy?

2. Whether the Medical Termination of Pregnancy Act and other Estancia laws are violative of a
woman’s right to terminate her pregnancy?

3. Whether the Medical Termination of Pregnancy Act violates the father’s right to retain the
unborn child?

4. Whether the Medical Termination of Pregnancy Act violates the right to life of an unborn
child?
 11

SUMMARY OF ARGUMENTS

1. Whether a woman has rights under the Constitution to retain or terminate her
pregnancy?

No,as Article 21 guarantees “Protection of life and personal liberty”. “No person shall be
deprived of his life or personal liberty except according to procedure established by law”.The
wife had become pregnant with her own consent and the decision to abort the child with no signs
of miscarriage shows a lot of foul play in sail in this case. As per “ Article 21 of the Estancia
Constitution”, nobody has the right to take away any person’s life except by the procedure of law
and hence, the unborn child deserves all the fundamental right and he should be granted the
“Right to life” as per “Article 21 of The Estancia Constitution” similar to a normal person
because the unborn child has prepared himself to enjoy the journey of life since the day of
conception.

2. Whether the Medical Termination of Pregnancy Act and other Estancia laws are
violative of a woman’s right to terminate her pregnancy?

The counsel for the respondent most humbly submits before the supreme court of Estancia that
the MTP Act does not violate the right of a woman to terminate her pregnancy as MTP Act has
plays a vital role in emancipation of woman from the age old fear off abortion being considered
as a sinful and criminal act. There is no doubt that a woman's right to make reproductive choices
is also a dimension of 'personal liberty' as understood under Article 21 of the Constitution of
India. It is important to recognise that reproductive choices can be exercised to procreate as well
as to abstain from procreating. Taken to their logical conclusion, reproductive rights include a
woman's entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise
 12

children. Hence, the provisions of the MTP Act, 1971 can be viewed as reasonable restrictions
that have been placed on the exercise of reproductive choices.

3. Whether the Medical Termination of Pregnancy Act violates the father’s right to retain
the unborn child?

The counsel for the respondent most humbly submits before the supreme court of Estancia that
the medical termination of pregnancy act 1971 does not violate the father’s right to retain the
unborn child as it has nowhere mentioned about the fathers right of retaining an unborn child. In
correspondence with the provisions of MTP Act, It is considered that a woman has complete
autonomy of her body and thus she has the right to decide whether to retain the child or to
terminate her pregnancy. A man does not have the right to decide on matters regarding a
woman’s pregnancy though he shall be the father of the unborn child/the husband of the woman.
A woman with her consent having sexual intercourse with her husband does not mean that she
has the consent to bear a child. The husband or any family member cannot force or compel a
woman to abort or to retain a child.

4. Whether the Medical Termination of Pregnancy Act violates the right to life of an
unborn child?

The counsel for the respondent most humbly submits before the supreme court of Estancia that
the MTP Act does violate the right of life of an unborn as the termination of pregnancy under
certain circumstances is only made legal and admissible under the Act. The conditions only
under which termination shall be permissible are ignoring the possibility of committing grave
mistakes by extinguishing potentially great life with our limited understanding of the future &
our exaggerated fear of deformity. The medical termination of pregnancy only imposes
restrictions on the reproductive choice of a woman and in fact it appears that the Act is rather in
consonance with Article 21 of the Constitution of Estancia than in conflict with it. We must give
them a chance to live and we never know what talent they may bear.
 13

ARGUMENT ADVANCED

1. Whether a woman has rights under the Constitution to retain or terminate her
pregnancy?

No, as Article 21 guarantees “Protection of life and personal liberty No person shall be deprived
of his life or personal liberty except according to procedure established by law”1.The wife had
become pregnant with her own consent and the decision to abort the child with no signs of
miscarriage shows a lot of foul play in sail in this case. If life is supposed to exist from the
moment of conception, the right to birth must also commence from that stage only. Article 21 of
the Indian constitution may be interpreted to mean that the word ‘person’ applies to all human
beings including the unborn offspring at every state of gestation. The state cannot discriminate
against persons who are fetuses by offering them less or no protection than other persons.
Therefore, the state is under obligation under article 21 not only to protect the life of the unborn
child from arbitrary and unjust destruction but also not to deny it equal protection under article
14 of the Indian constitution2. Quoting Article 21 it can be said that even the unborn child has the
right to life and basing on the limitation act it can be said an unborn child be considered as a
minor who at the point of time is incapable of making decisions but can do so once the
limitations are removed. As per “ Article 21 of the Estancia Constitution”, nobody has the right
to take away any person’s life except by the procedure of law and hence, the unborn child
deserves all the fundamental right and he should be granted the “Right to life” as per “Article 21
of The Indian Constitution” similar to a normal person because the unborn child has prepared
himself to enjoy the journey of life since the day of conception. In the explanation of Section 6
of Limitations act 1963 an infant in the womb is considered as minor. In the case of Sushil
Kumar V. Usha3 it can be seen from the judgment of the court that non consent of one party
would lead to cruelty and cruelty is an offense punishable by law due to the mental trauma

1
Article 21 of the Indian constitution,1950.
2
Article 14 of the Indian constitution, 1950.
3
Sushil Kumar v. Usha Devi And Others on 13 January, 2014.
 14

undergone by the husband. A woman doesn't have rights under the Constitution to terminate
her pregnancy expect under the provisions mentioned in MTP Act under section 3(2)
where;

● The continuance of the pregnancy would involve risk to the life of the pregnant woman.
● The termination of pregnancy is necessary to prevent grave permanent injury to the
physical or mental health of the pregnant woman.
● The continuance of the pregnancy would involve risk which is greater than if the
pregnancy were terminated, of injury to the physical or mental health of the pregnant
woman.
● There is substantial risk that if the child were born it would suffer from such physical or
mental abnormalities as to be seriously handicapped.
● Or in emergency, certified by the operating practitioner as immediately necessary:
(a) to save the life of the pregnant woman (or)
(b) to prevent grave permanent injury to the physical or mental health of the pregnant
woman.4
There is no doubt that a woman's right to make reproductive choices is also a dimension of
'personal liberty' as understood under Article 21 of the Constitution of India. It is important to
recognise that reproductive choices can be exercised to procreate as well as to abstain from
procreating. Taken to their logical conclusion, reproductive rights include a woman's entitlement
to carry a pregnancy to its full term, to give birth and to subsequently raise children. However, in
the case of pregnant women there is also a 'compelling state interest' in protecting the life of the
prospective child. Therefore, the termination of a pregnancy is only permitted when the
conditions specified in the applicable statute have been fulfilled because Estancia is a welfare
state and it can't sacrifice one's interest at the cost of others.

The Petition of the petitioner for the violation of her fundamental right of a person to life under
Art 21 is thus not justifiable. We can see here that it’s now illegal to allow her for abortion & if it
will be allowed then what about the right to life of that unborn baby? An unborn child aged five
months onwards in the mother's womb till its birth can be treated as equal to a child in existence.

4
THE MEDICAL TERMINATION OF PREGNANCY (AMENDMENT) ACT, 2021, section 3(2)
 15

The unborn child to whom the live birth never comes can be held to be a 'person' who can be the
subject of an action for damages for his death. A person means a human being regarded as an
individual & an individual's body: concealed on his person. Therefore, human fetus to which
personhood could be attributed must not be destroyed only on this ground of abnormality; this
child has every right to live & see the light of the day. Thus, from the above facts we can derive
that an unborn child is entitled to the right to life. There is no kind of violation to the rights of the
petitioner but her wish to abort the baby will definitely infringe the right of that unborn baby to
life.

2.Whether the Medical Termination of Pregnancy Act and other Estancia laws are violative
of a woman’s right to terminate her pregnancy?

The counsel for the respondent most humbly submits before the supreme court of Estancia that
the MTP Act does not violate the right of a woman to terminator her pregnancy as MTP Act has
plays a vital role in emancipation of woman from the age old fear off abortion being considered
as a sinful and criminal act. To avoid the misuse of induced abortion and to soften the rigors of
the law of abortion contained in the Indian Penal Code,18605, the Medical Termination of
Pregnancy Act, 1971 was passed. There is no doubt that a woman's right to make reproductive
choices is also a dimension of 'personal liberty' as understood under Article 21 of the
Constitution of India. It is important to recognise that reproductive choices can be exercised to
procreate as well as to abstain from procreating. Taken to their logical conclusion, reproductive
rights include a woman's entitlement to carry a pregnancy to its full term, to give birth and to
subsequently raise children. However, in the case of pregnant women there is also a 'compelling
state interest' in protecting the life of the prospective child. Therefore, the termination of a
pregnancy is only permitted when the conditions specified in the applicable statute have been
fulfilled. Hence, the provisions of the MTP Act, 1971 can also be viewed as reasonable
restrictions that have been placed on the exercise of reproductive choices.``

5
Indian Penal Code, 1860.
 16

Many people don't realize that abortion is actually very dangerous procedure. While techniques
are improving, there is still a high probability of negative physical side-effects. Also there are
almost certain negative psychological side-effects. Abortion is an unnatural process that
interrupts one of the primary functions of women‟s body. A woman's body naturally resists the
abortion, which causes physical & emotional problems. One of the most disturbing things about
this is that many women aren't informed about these side-effects. 87% hospitalized women were
ones with complications with legal abortion, & 91% had treated patients with complications from
legal abortions.

In Nand Kishore Sharma and Ors. vs Union Of India (Uoi) And Anr6, the High Court of
Rajasthan held that “The object of the Act being to save the life of the pregnant woman or relieve
her of any injury to her physical and mental health, and no other thing, it would appear the Act is
rather in consonance with Article 21 of the Constitution of India than in conflict with it.While it
may be debatable as to when the fetus comes to life so as to attract Article 21 of the Constitution
of India, there cannot be two opinion that where continuance of pregnancy is likely to involve
risk to the life of the pregnant woman or cause grave injury to her physical and mental health, it
would be in her interest to terminate the pregnancy.”7 Its object, besides elimination of high
incidence of illegal abortion is to confer on women the right of privacy.

In competing rights between the public interest and the individual interest, the public interest
would override.The allegations made against the MTP Act are baseless. There is a rational
connection between state’s interests in protecting women’s health and potential human life and
preventing women from deciding on abortions on their own. In the case of Suchita Srivastava,
the Court held that there is no doubt that a woman‟s right to make reproductive choices is also a
dimension of “personal liberty” as understood under Art. 21 of the Constitution of India. But
there is also a “compelling State Interest” in protecting the life of the prospective child and,
therefore the termination of the pregnancy could only be permitted under the condition specified
in the MTPA, 1971. The restrictions posed by MTP is reasonable as it looks into the legal

6
AIR 2006 Raj 166, 2006 WLC Raj UC 411
7
Nand Kishore Sharma and Ors. vs Union Of India (Uoi) And Anr.
 17

abortion from all perspectives. And hence, the provisions of the MTP Act, 1971 can also be
viewed as reasonable restrictions that have been placed on the exercise of reproductive choices."

Sec 312 of IPC,1860 deals with unlawful termination of pregnancy. Though the framers of this
code ( i.e. IPC) have not used the word “abortion” instead they have used the word
“miscarriage”and “unborn child” which has not been defined under IPC but here causing
miscarriage stands for criminal abortion. Voluntary causing miscarriage is an offence in 2
circumstances, that is, when a woman is with child (as soon as gestation begins) and when she is
quick with the child (motion of the fetus is felt by the mother). According to section 312 of IPC,
termination of pregnancy is only permitted when it is done in good faith in order to protect the
mother’s life in extreme circumstances.8 Relating this to our case, the facts of the case clearly
show no circumstances where continuance of the pregnancy would involve risk to the life of
Mrs. Anandhi nor does it show that termination of pregnancy is necessary here to prevent grave
permanent injury to the physical or mental health of Mrs. Anandhi and hence, it can be said that
the abortion of the child in this case would be completely out of bad faith.

There is a presumption of constitutionality in favor of all laws, including pre Constitutional laws.
Suresh Kumar Koushal and Anr. v. Naz Foundation and Anr9, the Supreme Court had held
that, “Every legislation enacted by Parliament or State Legislature carries with it a presumption
of constitutionality. This is founded on the premise that the legislature, being a representative
body of the people and accountable to them, is aware of their needs and acts in their best interest
within the confines of the Constitution. There is nothing to suggest that this principle would not
apply to pre-Constitutional laws which have been adopted by the Parliament and used with or
without amendment. If no amendment is made to a particular law it may represent a decision
that the Legislature has taken to leave the law as it is and this decision is no different from a
decision to amend and change the law or enact a new law. In light of this, both pre and post
Constitutional laws are manifestations of the will of the people of India through the Parliament
and are presumed to be constitutional.”10 . In Nand Kishore Sharma v Union of India it was

8
Section 312 of the Indian penal code, 1860.
9
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.10972 OF 2013
10
Suresh Kumar Koushal and Anr. v. Naz Foundation and Anr
 18

held that in the context of Sections 312 and 315, IPC, it would appear that the object of the Act
was to make the provisions relating to termination of pregnancy stringent and effective rather
than to permit blatant termination of pregnancy. Section 312 of the IPC made causing
miscarriage an offence except in good faith for the purpose of saving the life of the woman
without laying down the manner in which pregnancy could be medically terminated. Section 3 of
the Act provides the guidelines or limitation within which the pregnancy could be terminated.

3.Whether the Medical Termination of Pregnancy Act violates the father’s right to retain
the unborn child?

No, the medical termination of pregnancy act 1971 has nowhere mentioned about the fathers
right of retaining an unborn child and does not violate a father’s right of an unborn child. It is
considered that a woman has complete autonomy of her body and thus she has the right to decide
whether to retain the child or to terminate her pregnancy, A man does not have the right to decide
on matters regarding a woman’s pregnancy though he shall be the father of the unborn child/the
husband of the woman.11 A woman with her consent having sexual intercourse with her husband
does not mean that she has the consent to bear a child. The husband or any family member
cannot force or compel a woman to abort or to retain a child. It is also significant to note that the
MTP Act 1971 has not neglected the opinion of men completely

Sec 3(2)(ii) explanation12:

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 Indian Supreme Court on 27th October, 2017 in the case of Anil Kumar Malhotra v. Ajay
Pasricha, dismissed a man’s petition who was seeking damages from his wife as she had

11
https://www.legalserviceindia.com/articles/adp_tion.htm
12
Sec 3(2)(ii) explanation of the Medical termination of pregnancy Act, 1971.
 19

terminated her pregnancy without his consent. The husband had contended that the pregnancy
was illegal as per the Medical Termination of Pregnancy Act (MTP Act) 1971 as the specific
consent of the father of the unborn child was not obtained and that the termination was without
any medical need. He had filed a suit against his wife, her parents, her brother and the medical
practitioner, claiming Rs 30 lakhs as damages for the mental agony caused due to the ‘illegal
termination’ which was ‘cruel, illegal and unethical’ according to the husband.

In 2011, the Punjab and Haryana High Court in the case of DR Mangla Dogra and Ors Vs
Anil Kumar Malhotra and Ors had deliberated on “whether the express consent of the husband
is required for an unwanted pregnancy to be terminated by a wife?”13 The Court noted that under
Section 3(4)(b) of the MTP Act, only the consent of the pregnant woman undergoing the
termination of pregnancy is required. Moreover, the Court held that an unwanted pregnancy as
per Explanation II to Section 3(2) of the Act is a grave injury to the physical or mental health of
the woman. The Court remarked in paragraph 17 that “if the wife has consented to matrimonial
sex and created sexual relations with her own husband, it does not mean that she has consented
to conceive a child. It is the free will of the wife to give birth to a child or not. The husband can
not compel her to conceive and give birth to his child”14. The Court further remarked in
paragraph 22 of this High Court judgment that “A woman is not a machine in which raw material
is put and a finished product comes out. She should be mentally prepared to conceive, continue
the same and give birth to a child”15 and concluded that the husband has no right to compel his
wife not to terminate the pregnancy and that he had no right to sue his wife for compensation.
This was a progressive step by the High Court as it considered the woman the “best judge” of
whether or not to continue with a pregnancy.16 The Court recognised the personal right of a
woman to continue with the pregnancy or abort the fetus given that it is her who must be to
mentally prepared to carry out a pregnancy. The father has rights to retain an unborn only if the
mother of the unborn wants to retain it too. The consent of the husband of the pregnant women is
no required for termination of pregnancy and hence, the medical termination is not violative of a
fathers right to retain an unborn as is wholed carried by a woman only though it is due to the

13
Civil Revision No. 6337 and 6017 of 2011 | 29-11-2011
14
Para 17 of DR Mangla Dogra and Ors Vs Anil Kumar Malhotra and Ors
15
paragraph 22 of this High Court judgment Civil Revision No. 6337 and 6017 of 2011 | 29-11-2011
16
CIVIL APPEAL No.4704 OF 2013
 20

sexual intercourse between the husbnd and his wife but the husband cant be given rights over the
body of a woman. It is the free will of the wife to give birth to a child or not.

4. Whether the Medical Termination of Pregnancy Act violates the right to life of an
unborn child?

The counsel for the respondent most humbly submits before the supreme court of Estancia that
the MTP Act does violate the right of life of an unborn as the termination of pregnancy under
certain circumstances is only made legal and admissible under the Act. The conditions only
under which termination shall be permissible are ignoring the possibility of committing grave
mistakes by extinguishing potentially great life with our limited understanding of the future &
our exaggerated fear of deformity. The medical termination of pregnancy only imposes
restrictions on the reproductive choice of a woman and in fact it appears that the Act is rather in
consonance with Article 21 of the Constitution of Estancia than in conflict with it. We must give
them a chance to live and we never know what talent they may bear. As per “ Article 21 of the
Indian Constitution”, nobody has the right to take away any persons life except by the procedure
of law and hence, the unborn child deserves all the fundamental right and he should be granted
the “Right to life” as per “Article 21 of The Indian Constitution” similar to a normal person.17

The fact that the fetus is an individual, he/she has the privilege to live and Mother's activity
ought not to encroach on the privilege of the embryo because, the privilege to life is the
preeminent ideal for a person. Study has demonstrated that the baby's heart starts to beat as of
within 18 to 25 days and as of the 43rd day the electronically mind wave starts to work. The
nonappearance of the mind signal means to demonstrate demise. Therefore, at the time of the
fetus removals, the infant as of now has a thumping sensitivity and recognized mind impression.
Therefore, the child inside mom's worm is being a particular and exceptional individual or being
a person.

17
https://lexforti.com/legal-news/rights-of-an-unborn-child-with-reference-to-article-21-of-the-indian-constitution/
 21

The Section 20 of “Hindu Succession Act, 1956”, Section 13 and 20 of “Transfer of property
Act, 1882”, and Section 6 of the Limitation Act, 1963 recognises the rights of a child in the
womb.

“Section 20 Right of child in womb18.— A child who was in the womb at the time of the death of
an intestate and who is subsequently born alive shall have the same right to inherit to the
intestate as if he or she had been born before the death of the intestate, and the inheritance shall
be deemed to vest in such a case with effect from the date of the death of the intestate.”

“Section 20 of the Transfer of Property Act, 188219— Where, on a transfer of property, an

interest therein is created for the benefit of a person not then living, he acquires upon his birth,
unless a contrary intention appears from the terms of the transfer, a vested interest, although he
may not be entitled to the enjoyment thereof immediately on his birth.”

“Section 13 of the Transfer of Property Act, 188220 provides that when for the transfer of
property, an interest therein is created for the benefit of an unborn person at the date of the
transfer, a prior interest is to be created in respect of the same transfer and the interest created
for the benefit of such person.”

“Section 6(1) of The Limitation Act, 1963– Where a person entitled to institute a suit or make an
application for the execution of a decree is, at the time from which the prescribed period is to be
reckoned, a minor or insane, or an idiot, he may institute the suit or make the application within
the same period after the disability has ceased, as would otherwise have been allowed from the
time specified therefor in the third column of the Schedule. Explanation.—For the purposes of
this section, ‘minor’ includes a child in the womb.”21

All these above mentioned sections, treat the child in the womb in the same way as a born child
for the inheritance of intestate of a dead person. So we can assume from here that an unborn

18
Section 20 Right of child in womb UNDER THE HINDU SUCCESSION ACT, 1956
19
Section 20 of the Transfer of Property Act, 1882
20
Section 13 of the Transfer of Property Act, 1882
21
Section 6(1) of The Limitation Act, 1963 Explanation.—For the purposes of this section, ‘minor’ includes a
child in the womb.”
 22

child should have the same right that a born child has. Taking into account the religion of both
the petitioner and defendant and abiding by said religious laws it can be stated that an unborn
child is deemed to have the same rights as that of an individual who is well alive.

With the growth of science & medicine newer conditions are being described as diseases or
deformities. At the same time, new cures are also emerging. So what needs to be viewed as a
handicap & what need not becomes important. Let us not forget those people who despite being
severely handicapped have made outstanding contributions to society, for example Dr. Stephen
Hawking, the world renowned scientist who suffers from extremely debilitating motor neuron
disease & Ludwig van Beethoven, one of the greatest music composers of all times despite his
deafness. At that time, had there been mechanisms to detect such disabilities in the fetus, these
people may never have been born. In other words, we cannot completely ignore the possibility of
committing grave mistakes by extinguishing potentially great life with our limited understanding
of the future & our exaggerated fear of deformity. Advancement in medical science bestows
great power on humanity that must be used for noble causes. Unfettered or arbitrary misuse of
such power may lead to grave consequences for the society on multiple fronts.

Indian constitution says every person in India has the right to live & no one can terminate one's
life without court's permission. In this case, neither public injury or wrong has been caused to the
petitioner nor any of her fundamental or constitutional rights have been infringed. Moreover the
petitioner has approached the court challenging the constitutional validity of provisions of
MTPA, 1971 on the ground that it violated the fundamental right of a person to live under Art. 21
of the Constitution of Estancia, with an objective of getting judgment in her favor that means
permitting the petitioner to abort her child. But by doing this, what message will it impart to the
society? That not to give birth to any child who is less than perfect in future, even if he/she is
capable of leading a normal life and there might be chances that with the passage of time he/she
may not face any sort of problem in this era of technology.

From my point of view, the medical termination of pregnancy only imposes restrictions on the
reproductive choice of a woman and in fact it appears that the Act is rather in consonance with
Article 21 of the Constitution of Estancia than in conflict with it. But when it comes to
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recognizing the right of the unborn, the constitution does recognize the right of an unborn but the
same is ignoring the possibility of committing grave mistakes by extinguishing potentially great
life with our limited understanding of the future & our exaggerated fear of deformity. I question
what is the point of killing such a child? Don’t they have any right to survive and see the light of
the day? It must be appreciated that a civilized society & welfare state must consider the rights of
the unborn who are defenseless individuals incapable of taking decisions or making informed
choices about their right to life. We must give them a chance to live and we never know what
talent they may bear. These are very special and we must respect and support them and not kill
them. If today the court delivers its judgement in favour of abortion only on this basis then it
would be a black day in the history of Estancia. They have every right to live and their own
destiny, and thus I object that the writ filed by the petitioner on this ground is not at all
justifiable.
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PRAYER

In the light of fact cited issues raised ,arguments advanced ,and authority cited the petitioner
humbly submit that this Honorable court may be pleased to declare the following;

1. That a woman does not have rights under the Constitution to terminate her pregnancy.

2. That Section 312 of IPC is constitutionally valid.

3. The provisions of the MTP Act are constitutionally valid.

4. That the Medical Termination of Pregnancy Act;

a) Violates the right to life of an unborn child
b) Doesn’t violates the father’s right to retain the unborn child
c) Does not violate the right of a woman to terminate her pregnancy.

AND/OR

Pass any other order as the hon’ble court deems fit in the interest of equity, justice ,fair play and
good conscience.

All of which is humbly prayed.

(Counsel on behalf of Respondent)