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ROLL NO. 20

MANGESH KULKARNI

BEFORE THE HONOURABLE SUPREME COURT OF INDIA

(Under Article 136 of the Constitution of INDIA.)

IN THE MATTER OF,

VEENA………………………………………………….……… APPELLANT

VERSUS

RONIT…..…………………………………….…….………... RESPONDENT

BEFORE THE HONOURABLE CHIEF JUSTICE AND OTHER

COMPANION JUDGES OF THE SUPREME COURT OF INDIA.

[MEMORIAL ON BEHALF OF THE RESPONDENT]

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TABLE OF CONTENTS

INDEX OF AUTHORITIES…………………………………………………………………2

STATEMENT OF JURISDICTION………………………………………………………...4

STATEMENT OF FACTS…………………………………………………………………...5

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

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

ARGUMENTS ADVANCED……………………………………………………………….11

ISSUE I: WHETHER THE CLASSIFICATION MADE UNDER SECTION 3 OF THE

MEDICAL TERMINATION OF PREGNANCY ACT, 1971 (MTP ACT) IS
UNREASONABLE AND VIOLATES ARTICLE 14?
...................................................................................................................................................11

I. SECTION 3 OF MEDICAL TERMINATION OF PREGNANCY ACT, 1971 (MTP ACT)

DO NOT VIOLATE ARTICLE 14.
II. RISK INVOLVED IN TERMINATION OF PREGNANCY AFTER 20 WEEKS.

ISSUE II: WHETHER DENIAL TO DNA TEST TO ESTABLISH THE PATERNITY OF

THE FETUS TO UPHOLD THE DIGNITY OF A WOMAN WHEREIN, SHE IS
ACCUSED OF INFIDELITY, VIOLATES OF ARTICLE 21 OF THE
CONSTITUTION? ................................................................................................................15

I. DNA TEST TO BE USED IN EXCEPTIONAL CASES ONLY.

II. RIGHT TO PRIVACY UNDER ARTICLE 21 OF INDIAN CONSTITUTION

PRAYER……………………………………………………………………………………..17

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INDEX OF AUTHORITIES

CASE LAWS:

 Alakh Alok Srivastava vs. Union of India, AIR 2018 SUPREME COURT 2440
 Aparna Ajinkya Firodia vs Ajinkya Arun Firodia: 2023 LiveLaw (SC) 122
 Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women: AIR
2010 SC 2851
 N.D. Tiwari v. Rohit Shekhar : (2012) 12 SCC 554
 Rajagopal v. State of Tamil Nadu: AIR 1995 SC 264
 Ram Krishna Dalmia v. Justice S.R. Tendolkar, 1958 AIR 538
 Sujith Kumar S v. Vunaya V: 2023 LiveLaw (Ker) 494

STATUTES:

 Constitution of india-article 14 and 21

 Medical termination of pregnancy act,1971

BOOKS:

1. M. P. JAIN, INDIAN CONSTITUTIONAL LAW, LexisNexis, Eighth Edition, 2018

2. .J. N. PANDEY, CONSTITUTIONAL LAW OF INDIA, Central Law Agency,
FiftyEighth Edition, 2021.

WEBSITES REFFERRED:

 . www.scconline.in
 www.Manupatra.in
 www.westlaw.com
 www.aironline.com

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 www.Livelaw.com

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STATEMENT OF JURISDICTION

The appellant has approached this honourable Court under Article 136 of the Constitution of
India. The Respondent humbly submits that the present appeal is not maintainable.

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STATEMENT OF FACTS

I. Veena and Ronit are the collaborator cooperating as Programmers in a MNC in New
Delhi Beginning around 2018. They progressively created kinship and in September
2020 they moved to a rented apartment close by Rohini's house. In April 2022, Veena
went to Calcutta for a work task by the organization where she was helping Mohit in
one of the undertaking and they were working for long hour together. Because of the
task's tight cutoff times, Veena needed to invest a ton of effort. Ronit, feeling
neglected, alleged Veena that she is not giving enough time to him and left the town
with Mohit. When she returned to Mumbai in August 2022, Ronit became suspicious
about Veena for engaging and developing relationship with Mohit in Calcutta. He
asked Veena that why she was still in touch with him, when the task is finished. Slowly
she persuaded Ronit and furthermore disengaged herself from Mohit totally.

II. In the month of October, 2023, Veena found out that she was pregnant and she insisted
upon getting married, to which Ronit initially refused as he wanted to focus on his
career but Veena convinced him hard and he agreed. When Veena’s parents went to
meet Ronit’s parent, they purported that Veena had multiple illicit relationships and as
they were not sure that Ronit was the father of the expected child, they did not want
him to get married to Veena . Veena said that if they had doubts Ronit could take a
paternity DNA test but he clearly refused to do that and said he cannot be forced for
the same and was sure that the child belongs to Mohit or someone else but not him.

III. Veena was devastated; she lost all the hopes and decided to terminate the pregnancy,
which by then was of the term of 23 weeks. The doctor refused to abort the baby as
per Medical Termination of Pregnancy Act, 1971 (MTP Act). Against this Veena
approached the court to grant equal rights to access abortion upto 24 weeks of gestation
to all women, whether married or not and to order Paternity test of Ronit to uphold her
dignity along with the compensation for all the agony and trauma.

IV. The trial court denied Veena, the right to terminate her pregnancy. Veena did not want
to carry the pregnancy because of the social stigma, family pressure, financial

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constraints, and above all the betrayal from Ronit. Veena’s request to order Ronit to
go through the DNA test for paternity was also rejected on the ground of lack of
jurisdiction. The Trial Court held that the case involves consensual sex between two
consenting adults and Veena had given consent for sexual intercourse and it was only
after pregnancy that Ronit agreed to get married but the sexual intercourse at any stage
before that was consensual without any conclusive proof of promise to get married
from the side of Ronit. The Trial court called the case ‘a classic case of a love affair
gone bitter’ and said DNA test cannot be ordered as a ‘matter of course’ merely
because they are permissible by the court.

V. Veena filed appeal in High Court, and court clearly reinstated that DNA test is to be
ordered only in deserving cases and forcing someone infringes his right to privacy.
Hon’ble High court said, “The appellant seems to be confusing, she is here with
conflicting pleas. She cannot seek permission to terminate her pregnancy and for the
DNA test for Paternity at once”. Further it was held that she did not have the right to
terminate her pregnancy. The court clearly enlisted that only certain categories of
women can terminate their pregnancy beyond 20 weeks and up to 24 weeks and such
categories included married women whose marital status changed because of divorced
or death of the husband during the pregnancy. The court clearly said that the unmarried
women, whose pregnancy arose out of a consensual relationship, was not covered,
hence Veena cannot get her pregnancy terminated. The court explicitly said that giving
an option to terminate the pregnancy must in all the cases be the exception and not the
rule. Abortions are “ethically not advisable”. With a 24 week pregnancy, termination
is not as casual as the mother wants it to be, it is a feticide, a killing of fetus which
cannot be allowed just under family pressure. Ms. Veena is an independent woman
who ignored the social norms and moved in with her lover and decided to get pregnant,
just because the affairs did not turn out to be as planned, she cannot terminate the
pregnancy and kill the fetus, which is a living being, without any of his fault. If such
terminations are allowed, we are in turn increase female- feticides also. The court
upholds the decision that this pregnancy should not be terminated.

VI. Veena aggrieved by aforesaid judgment by High Court, and filed special leave to
appeal under Aricle 136 of Constitution of in Supreme Court stating that Article 21 of

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the Constitution guarantees right to life with dignity and the right of every woman to
make reproductive choices without undue interference from the State is the core of the
idea of human dignity. Denial to DNA test and deprivation from abortion choice along
with the denial of access to reproductive healthcare or emotional and physical
wellbeing injures the dignity of women. It is also pleaded that the legislature (Medical
Termination of Pregnancy Act, 1971) intends to distinguish between married and
unmarried women and hence is against the constitutional mandate of equality. An
interpretation given by the Hon’ble High Court is limited only to married women,
would render the law discriminatory towards unmarried women and violate their
fundamental right to equality.

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STATEMENT OF ISSUES

ISSUE I: WHETHER THE CLASSIFICATION MADE UNDER SECTION 3 OF THE

MEDICAL TERMINATION OF PREGNANCY ACT, 1971 (MTP ACT) IS
UNREASONABLE AND VIOLATES ARTICLE 14?

ISSUE II: WHETHER DENIAL TO DNA TEST TO ESTABLISH THE PATERNITY

OF THE FETUS TO UPHOLD THE DIGNITY OF A WOMAN WHEREIN, SHE IS
ACCUSED OF INFIDELITY, VIOLATES OF ARTICLE 21 OF THE
CONSTITUTION.

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SUMMARY OF ARGUMENTS

ISSUE I: WHETHER THE CLASSIFICATION MADE UNDER SECTION 3 OF THE

MEDICAL TERMINATION OF PREGNANCY ACT, 1971 (MTP ACT) IS
UNREASONABLE AND VIOLATES ARTICLE 14?

A. The petitioner states that Section 3 of the Medical Termination of Pregnancy Act, 1971
(MTP act) is unreasonable and violates Article 14 of Indian Constitution. Article 14
does not imply that all laws are general in character or that the same laws are applicable
to all persons or that every law must have universal application. This is because all
persons are not, by nature, attainment or circumstances in the same positions. Thus, the
State can treat different persons differently if circumstances justify such treatment. The
classification must be founded on an intelligible differentia which distinguishes persons
or things that are grouped together from others left out of the group. Such differentia
must have a rational relation to the object sought to be achieved by the statute in
question.

B. In cases of termination of pregnancy after 20 weeks of conception there can be lot of

complication and danger to health of woman. Section 3 of MTP act takes into
consideration the health of the woman and tries to balance the right of both the woman
and the unborn child.

ISSUE II: WHETHER DENIAL TO DNA TEST TO ESTABLISH THE PATERNITY OF

THE FETUS TO UPHOLD THE DIGNITY OF A WOMAN WHEREIN, SHE IS
ACCUSED OF INFIDELITY, VIOLATES OF ARTICLE 21 OF THE
CONSTITUTION?

A. It is necessary that only in exceptional and deserving cases, where such a test becomes
indispensable to resolve the controversy, the Court can direct such test. The court said
the law does not contemplate use of DNA tests as exploratory or investigatory

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experiments for determining paternity. So DNA tests are not to be directed on a routine
basis. Matters where paternity of the child is in issue before the court, the use of DNA
test is an extremely delicate and sensitive aspect. The court must be reluctant in the use
of such scientific tools which result in invasion of right to privacy of an individual and
may not be prejudicial to the rights of the parties.

B. Court held that right to privacy is implicit in the right to life and liberty guaranteed to
the citizens of this country by Article 21. A person is allowed to object to the DNA test.
This is largely due to the reason that the person might want to preserve their DNA
information as private which will otherwise be revealed in case he undergoes the test.

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ARGUMENTS ADVANCED

ISSUE I: WHETHER THE CLASSIFICATION MADE UNDER SECTION 3 OF THE

MEDICAL TERMINATION OF PREGNANCY ACT, 1971 (MTP ACT) IS
UNREASONABLE AND VIOLATES ARTICLE 14?

I. Section 3 of Medical Termination of Pregnancy Act, 1971 (MTP act) do not violate
Article 14.
1. The objective of Medical termination of Pregnancy Act, 1971 is to provide for the
termination of certain pregnancies by registered medical practitioners and for matters
connected therewith or incidental thereto. The section 3 of the Medical termination of
Pregnancy Act, 1971 states that-
“A pregnancy may be terminated by a registered medical practitioner, —
(a) Where the length of the pregnancy does not exceed twenty weeks, if
Such medical practitioner is, or
(b) Where the length of the pregnancy exceeds twenty weeks but does
Not exceed twenty-four weeks in case of such category of woman as may be
Prescribed by rules made under this Act, if not less than two registered medical
Practitioners are,
Of the 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 any serious
physical or mental abnormality.

2. The contention of the Petitioner is that, section 3 of the Medical Termination of

Pregnancy Act, 1971 (MTP act) is unreasonable and violates Article 14 of Indian
Constitution.

Article 14 of the Constitution reads,

“Equality before law.—The State shall not deny to any person equality before the law
or the equal protection of the laws within the territory of India.”

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3. It is humbly submitted that, Article 14 does not imply that all laws are general in
character or that the same laws are applicable to all persons or that every law must have
universal application. This is because all persons are not, by nature, attainment or
circumstances in the same positions. Thus, the State can treat different persons
differently if circumstances justify such treatment. Further, the identical treatment in
unequal circumstances would amount to inequality. The test for equality would not
suffice if the following conditions are fulfilled, namely,

i) The classification must be founded on an intelligible differentia

which distinguishes persons or things that are grouped together from
others left out of the group, and
ii) Such differentia must have a rational relation to the object sought to
be achieved by the statute in question.

The differentia which is the basis of the classification and the object of the Act are two
distinct things. What is necessary is that, there must be nexus between the basis of
classification and the object of the Act which makes the classification.1 In the instant
case there are two classifications, Married woman and Unmarried woman. The above
classification exists because the rights of a married woman are different from that of an
unmarried woman as per the general laws and personal laws. It is humbly submitted
that, a married women can seek protection under various provisions of law which
cannot be claimed by an unmarried women .Independent thought v. Union of India is
per incuriam in the eyes of law as it has disregarded the existence of the available
protections. The only classification that exists is between a married woman and
unmarried woman. Hence, it is patently established that there is no violation of Article
14. It has also been stated in the case of Ram Krishna Dalmia v. Justice S.R.
Tendolkar1by the Supreme Court that while Article 14 prohibits class legislation, it does
not prohibit reasonable classification for legislative reasons.2

II. Risk involved in termination of pregnancy after 20 weeks.

1. There has been a contention that section 3 of the MTPA Act, 2018 violates Article 21
of the Constitution. But it is humbly submitted that, the proposition the MTP Act, 2018

1
H.M. Seervai-Constitutional Law of India, Vol. 1, 294(3rd edition 1983)
2
Ram Krishna Dalmia v. Justice S.R. Tendolkar, 1958 AIR 538

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has in fact been protecting the life of the mother by taking adequate precautions so as
to not opt anything which might bring out severe consequence in the case of
termination of pregnancy beyond 24 weeks.
Serious medical complications of abortion can include:
a) Damage to the cervix
b) Scarring in the uterine lining
c) Perforation of the uterus
d) Damage to the bowel
e) Damage to the bladder Infection
f) Haemorrhaging
g) Death
h) Stillbirth
Moreover, the woman could also be mentally affected by post-abortion syndrome.
Some of the symptoms associated with post-abortion syndrome include:
a) Frequent dreams of the experience
b) Difficulty forming strong emotional attachments
c) Trouble maintaining healthy intimate relationships
d) Sexual dysfunction
e) Insomnia
f) Eating disorders
It is humbly submitted that, the aforesaid complications and some other may be quite
prevalent and highly probable in cases of termination of pregnancy after 20 weeks of
conception.

2. The classification made under section 3 of the MTP Act fulfils the conditions laid down
in the case of Re Special Courts Bill, 1973 for permissible classification. In Alakh Alok
Srivastava vs. Union of India3 the petitioner was a 10-year-old pregnant rape victim
with a 32-week pregnancy as well, the Court did not order termination. The Medical
Board opined that the continuation of the pregnancy was less hazardous for the
petitioner than termination at that stage.

3
Alakh Alok Srivastava vs. Union of India, AIR 2018 SUPREME COURT 2440

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3. It is abundantly clear that the classification under section 3 of the MTP Act based on
the duration of pregnancy is not unreasonable and does not violates article 14 but rather
it takes into consideration the health of the woman and tries to balance the right
of both the woman and the unborn child.

It is most humbly submitted that section 3 of medical termination of pregnancy act, 1971 (MTP
act) do not violate article 14.

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ISSUE II: WHETHER DENIAL TO DNA TEST TO ESTABLISH THE PATERNITY OF

THE FETUS TO UPHOLD THE DIGNITY OF A WOMAN WHEREIN, SHE IS
ACCUSED OF INFIDELITY, VIOLATES OF ARTICLE 21 OF THE
CONSTITUTION?

It is respectfully presented before the Honourable Supreme Court that Shardul, the first
accused, did not commit offence under Section 326A read with Section 34 of the Utopian Penal
Code (UPC).

I. DNA test to be used in exceptional cases only.

C. In landmark case Aparna Ajinkya Firodia vs Ajinkya Arun Firodia4 Supreme Court
held that the reasons for the parent’s refusal may be several, and hence, it is not prudent
to draw an adverse inference under Section 114 of the Evidence Act, in every case
where a parent refuses to subject the child to a DNA test. Therefore, it is necessary that
only in exceptional and deserving cases, where such a test becomes indispensable to
resolve the controversy, the Court can direct such test. The court said the law does not
contemplate use of DNA tests as exploratory or investigatory experiments for
determining paternity. Proof by way of DNA profiling is to be directed in matrimonial
disputes involving allegations of infidelity, only in matters where there is no other mode
of proving such assertions. Therefore, DNA tests are not to be directed on a routine
basis.

D. In the case of Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission
for Women5, it was stated that matters where paternity of the child is in issue before
the court, the use of DNA test is an extremely delicate and sensitive aspect. The court
must be reluctant in the use of such scientific tools which result in invasion of right to
privacy of an individual and may not be prejudicial to the rights of the parties.

E. The court in a case of Sujith Kumar S v. Vunaya V ruled that the court can only order
a DNA test when it is impossible to draw an inference from the evidence or when the

4
Aparna Ajinkya Firodia vs Ajinkya Arun Firodia: 2023 LiveLaw (SC) 122
5
Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women: AIR 2010 SC
2851

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dispute cannot be settled without one. Court should not order DNA tests to establish the
paternity of a child in every instance where the paternity is questioned. The Court stated
that in other situations, the parties should be instructed to lead evidence to establish the
child’s paternity. The court may not order a DNA test unless it is impossible to draw a
reasonable inference from the evidence or when it is necessary to resolve the dispute.
Alternately, the High Court made it very apparent that DNA testing or any other
scientific test is only necessary in exceptional and infrequent cases of merit.6

II. Right to privacy under article 21 of Indian Constitution

1. Article 21-right to Life states that no person shall be deprived of his life or personal
liberty except according to procedure established by law and it also includes right to
privacy.7 In Rajagopal v. State of Tamil Nadu the Supreme Court held that 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.8

2. A person is allowed to object to the DNA test. This is largely due to the reason that the
person might want to preserve their DNA information as private which will otherwise
be revealed in case he undergoes the test. As it was seen in the landmark judgement of
the Supreme Court of India in N.D. Tiwari v. Rohit Shekhar,9 if harsh measures are
taken to get the test done in case where the party denies to cooperate then it goes against
the basic concept and necessity of consent. Such incidents and precedents clearly
affect the privacy of an individual when he is coerced to undergo the test in case
he doesn’t want to. Stating that the decision to take an adverse consequence against
the person that refuses to undergo the test infringes the right to privacy of the individual
under Article 21.

It is most humbly submitted that denial of DNA test do not defames dignity of woman but it
violates article 21 of men included if one is forced to do DNA test.

6
Sujith Kumar S v. Vunaya V: 2023 LiveLaw (Ker) 494
7
Constitution of India, M.P jain
8
Rajagopal v. State of Tamil Nadu: AIR 1995 SC 264
9
N.D. Tiwari v. Rohit Shekhar : (2012) 12 SCC 554

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PRAYER

WHEREFORE, IN THE LIGHT OF THE ISSUES RAISED, ARGUEMTS ADVANCED

AND AUTHORITIES CITED, IT IS HUMBLY PRAYED THAT THIS HONOURABLE
TRIBUNAL BE PLEASED TO:

1. Dismiss the Appeal.

2. Restore the Judgment and Order Delivered by the Honourable High Court.

ANY OTHER ORDER BE PASSED IN THE INTEREST OF JUSTICE, EQUITY AND

GOOD CONSCIENCE.

ALL OF WHICH IS HUMBLY PRAYED,

COUNSEL FOR THE RESPONDENT.

MEMORIAL ON BEHALF OF THE RESONDENT