TEAM CODE: R/LJMC20

THE L J SCHOOL OF LAW, AHEMDABAD

6.0 VIDHWATA NATIONAL MOOT COURT
COMPETITION, 2024

IN THE HONORABLE
SUPREME COURT OF AMANABAAD

SPECIAL LEAVE PETITION APPEAL NO……./2024

[UNDER ARTICLE 136 OF THE CONSTITUTION OF AMANABAAD]

IN THE MATTERE OF:

DAIVIK SANJAY SINGH…………PETTITIONER
V/S
AADVIKA KAUR DAIVIK SINGH……………RESPONDENT

MEMORIAL ON THE BEHALF OF PERTITIONER

1
 TABLE OF CONTANT

INDEX OF ABBRIVIATION 03

INDEX OF AUTHORITIES 04

STATEMENT OF JURISDICTION 09

STATEMENT OF FACTS 10

STATEMENT OF ISSUES 13

SUMMARY PF ARGUMRNTS 14

ARGUMENTS ADVANCED 16

PRAYER 24

2
 INDEX OF ABBRIVIATION

Hon’ble Honorable

V/S Versus

v. Versus

Art Article

SC Supreme Court

HC High Court

APC Amanabaad Penal Code

MTP Act Medical Termination of Pregnancy Act

Sec. Section

3
 INDEX OF AUTHORITIES

 CASES:

1. N. Suriyakala v. A. Mohandass & Ors. [2007] 9 SCC 196

2. Pritam Singh v. The State of Punjab. AIR 1950 SC 169
3. Anil Kumar Malhotra v. Ajay Pasricha C.R 6337/2011
4. X v. Principal Secretary, Health & Family Welfare Department, Government of NCT
Delhi & Anr [2022] INSC 740, [2022] SCC Online SC 1321.
5. Nirav Anupambhai Jarkas v. State of Gujarat 2011 SCC online Goj 5577
6. Planned Parenthood v. Casey 505 U.S. 833 (1992)
7. Union Of India v. Era Educational Trust & Another AIR (2000) SC 1573
8. Nandkishor Sharma v. Union Of India AIR 2006 Raj 166
9. Jacob George v. State of Kerla (1994) 3 SCC 430
10. Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1
11. High Court On Its Own Motion v. State of Maharashtra 2017 Cri LJ 218
12. Suman Kapur v. Sudhir Kapur AIR 2009 SC 589
13. K S Puttaswamy v/s Union of India (2017) 10 SCC 1.
14. Bhupinder Kumar v/s Angrej Singh (2007) 147 PLR 580

4
 WEBSITES:

1. https://indiankanoon.org/doc/127517806/
2. https://indiankanoon.org/doc/1785697/
3. https://privacylibrary.ccgnlud.org/case/suchita-srivastava-vs-chandigarh-
administration#:~:text=Case%20Brief&text=The%20Supreme%20Court%20stayed%20the,of
%20her%20right%20to%20privacy
4. https://cjp.org.in/bodily-autonomy-safe-abortion-a-right-under-article-21/#:~:text=The
%20eligibility%20criteria%20for%20abortion,Article%2021%20of%20the%20Constitution
5. https://indiankanoon.org/docfragment/469514/?formInput=right%20to%20abortion
%20%20doctypes%3A%20supremecourt
6. https://www.lawyersclubindia.com/articles/father-s-rights-in-abortion-cases-a-critical-
analysis14692.asp#:~:text=In%20Nirav%20Anupambhai%20Tarkas%20v,his%20consent
%20was%20not%20required
7. https://www.indianconstitution.in/2021/12/n-suriyakala-vs-mohandoss-supreme-court.html
8. https://indiankanoon.org/doc/743851/
9. https://ohrh.law.ox.ac.uk/is-consent-of-the-husband-needed-for-an-abortion-in-india/
10. https://main.sci.gov.in/supremecourt/
2022/21815/21815_2022_2_1501_38628_Judgement_29-Sep-2022.pdf
11. https://www.lawyersclubindia.com/articles/father-s-rights-in-abortion-cases-a-critical-
analysis-14692.asp
12. https://reproductiverights.org/wp-content/uploads/2020/12/
SecuringReproductiveJusticeIndia-Chpt05.pdf
13. https://www.bing.com/ck/a?!
&&p=365a8de6df1e9c86JmltdHM9MTcwODEyODAwMCZpZ3VpZD0wNDEwMzcwNi02MjFkL
TZjZTQtMDg0Ny0yNGFhNjNhZDZkMTAmaW5zaWQ9NTIxNg&ptn=3&ver=2&hsh=3&fclid=04
103706-621d-6ce4-0847-
24aa63ad6d10&psq=wife+abort+her+child+without+the+knowledge+of+her+husband+is+no
t+a+cruelty+under+ipc&u=a1aHR0cHM6Ly9tYWluLnNjaS5nb3YuaW4vam9uZXcvanVkaXMvM
zMxMDkucGRm&ntb=1

5
 STATUTES:

1. Constitution of India, 1949, Art 136, Art of Parliament, 1949 (India).

2. Constitution of India, 1949, Art 21, Art of Parliament, 1949 (India).
3. Constitution of India, 1949, Art 19, Art of Parliament, 1949 (India).
4. Constitution of India, 1949, Art 14, Art of Parliament, 1949 (India).
5. Medical Termination of Pregnancy Act, 1971, § 3, Art of Parliament, 1971
(India).
6. Medical Termination of Pregnancy Act, 1971, § 3, No. 4(b), Art of Parliament,
1971 (India).
7. Indian Penal Code,1860, § 312, Art of Parliament, 1860 (India).

6
 RESEARCH ARTICLES:

1. https://indiankanoon.org/doc/127517806/, J. S Puttaswamy v. UOI, 494 (2012)

2. https://indiankanoon.org/doc/1785697/, UOI v. Era Educational Trust & other,
3360, (2000)
3. https://privacylibrary.ccgnlud.org/case/suchita-srivastava-vs-chandigarh-
administration#:~:text=Case%20Brief&text=The%20Supreme%20Court%20stayed
%20the,of%20her%20right%20to%20privacy, Suchita Shrivastav v. Chandigarh
Administration, 14 (2009)
4. https://cjp.org.in/bodily-autonomy-safe-abortion-a-right-under-article-21/#:~:text=The
%20eligibility%20criteria%20for%20abortion,Article%2021%20of%20the
%20Constitution, X v. Principal Secretary, NCT of Delhi
5. https://indiankanoon.org/docfragment/469514/?formInput=right%20to%20abortion
%20%20doctypes%3A%20supremecourt, Bhupendra Kumar v. Angrej Singh 2009
6. https://www.indianconstitution.in/2021/12/n-suriyakala-vs-mohandoss-supreme-
court.html, N. Suriyakala v. A. Mohandoss, 2021
7. https://indiankanoon.org/doc/743851/, Pritam Singh v. State of Punjab, 1950 AIR
169
8. https://www.bing.com/ck/a?!
&&p=365a8de6df1e9c86JmltdHM9MTcwODEyODAwMCZpZ3VpZD0wNDEwMzcwNi02Mj
FkLTZjZTQtMDg0Ny0yNGFhNjNhZDZkMTAmaW5zaWQ9NTIxNg&ptn=3&ver=2&hsh=3&f
clid=04103706-621d-6ce4-0847-
24aa63ad6d10&psq=wife+abort+her+child+without+the+knowledge+of+her+husband+i
s+not+a+cruelty+under+ipc&u=a1aHR0cHM6Ly9tYWluLnNjaS5nb3YuaW4vam9uZXcvanV
kaXMvMzMxMDkucGRm&ntb=1, Suman Kapur v. Sudhir Kapur, (2007) AIR 10907

7
 BLOGS:

1. https://www.lawyersclubindia.com/articles/father-s-rights-in-abortion-cases-a-critical-
analysis-14692.asp#:~:text=In%20Nirav%20Anupambhai%20Tarkas%20v,his%20consent
%20was%20not%20required, Nirav Anupambhai Tarkas v. State of Gujarat (2008),
Vrinda
2. https://www.lawyersclubindia.com/articles/father-s-rights-in-abortion-cases-a-critical-
analysis-14692.asp, Father’s right in abortition cases, Vrinda
3. https://reproductiverights.org/wp-content/uploads/2020/12/
SecuringReproductiveJusticeIndia-Chpt05.pdf,medical termination of pregnancy,
reproductive rights
4. https://cjp.org.in/bodily-autonomy-safe-abortion-a-right-under-article-21/#:~:text=The
%20eligibility%20criteria%20for%20abortion,Article%2021%20of%20the%20Constitution , X
v. Principal Secretary, CJB
5. https://ohrh.law.ox.ac.uk/is-consent-of-the-husband-needed-for-an-abortion-in-india/, Anil
Kumar Malhotra v. Ajay Pasricha, Aradhana Cherupara Vadekkethil
6. https://main.sci.gov.in/supremecourt/
2022/21815/21815_2022_2_1501_38628_Judgement_29-Sep-2022.pdf , Injury to Mental
Health, X v. Principal Secretory.

8
 STATEMENT OF JURISDICTION

As the laws of Amanabaad are in pari materia with the laws of India, the Hon’ble Supreme
Court of Amanabaad has the jurisdiction to try the instant matter under Art. 136 of ‘The
Constitution of India’

Art. 136:

Special leave to appeal by the Supreme Court,

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion,
grant special leave to appeal from any judgment, decree, determination, sentence or
order in any cause or matter passed or made by any court or tribunal in the territory of
India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces.

The respondent would like to humbly submit that this special leave for appeal is not
maintainable.

9
 STATEMENT OF FACTS

The Federal Republic of Amanabaad, nestled in the heart of Indiana, stands as a quasi-
federation nation with a central government and is comprised of 35 states. The Laws of
Amanabaad are in Pari-Materia with the Laws of India. Kalyanpura is one of the most
developed and highly cultural states with rich family values within the country of
Amanabaad, wherein the Singh and Kaur families were residing as friends.

The Singh and the Kaur families have shared their business and friendship over more
than 30 years of their lives and now have decided to turn this friendship into family by
proposing marriage between their children. Ms. Aadvika Kaur, aged: 25, D/o Dhananjay
Singh, R/o 01/02, Parth Apartments, Kalyanpura, single daughter of Singh family, and Mr.
Daivik Singh, aged: 27, S/o Sanjay Singh, R/o 31/07 Gully Road, Kalyanpura, rich and the
only son of the Singh family decided to meet and discuss their future life. Both Aadvika and
Daivik, after going on numerous dates and discussing their life aspirations, willingly and
consensually agreed to embark on the journey of marriage. They had a destination wedding
which both the families enjoyed lavishly on 13.06.2019 according to the Hindu rites and
rituals. They entered the sacred bond of matrimony, and their married life was moving on
smoothly and happily.

During this marriage, there were many ups and downs faced by the couple. However,
the good news was that both the partners were excelling in their careers as well as their
personal lives. There were some gaps and disagreements between the couple, but the family
values and love always kept them together. After 4.5 years into marital bliss, Daivik notices
some unusual physiological changes in Aadvika, and after taking a pregnancy test, the couple
finds out that she is pregnant on 29.11.2023. The happiness of both families knew no bounds.
Daivik was so joyous to know that their life was finally taking the next step that they were
trying for the past 2-3 years.

The loving husband took Aadvika to a gynaecologist the same day to get a proper
medical examination and to confirm the news. The gynaecologist confirmed the news and
informed the couple that they were six weeks pregnant as of 29.11.2023. When the couple
comes home, Daivik noticed that Aadvika was distressed the whole day and did not seem
very happy about the pregnancy.

10
 When Daivik tried to have a conversation with Aadvika about the same, Aadvika
asked that she wanted to get the pregnancy terminated. Daivik tried to ask the reason and the
conversation turned into a heated argument. Aadvika, in a fit of rage confessed many things.
Daivik found some nerve breaking revelations during this conversation. To Daivik’s surprise,
he learned that Aadvika had terminated pregnancies three times in the past without his
knowledge or consultation. Daivik felt devastated and hopeless after learning such
information. She informed him that she did get pregnant before but did not inform anyone
including Daivik and got it terminated by herself without consulting or informing Daivik as
she did not want a child and she did not give any valid reason for the same. She also
confessed to Daivik that, even this time she tried to abort the child but somehow failed to
terminate the pregnancy. Daivik requested Aadvika to not move forward with an abortion of
the child and tried to explain her how much he would love to have a child and create a family
with Aadvika. However, after all his e forts in vain, he also tried to remind Aadvika that she
had consented to have a child before marriage when they used to go out.

Aadvika was adamant on her decision and demanded to get an abortion done. Daivik,
feeling depressed and hopeless, did not know what to do. Daivik was already facing societal
stigma as people used to make fun of him by passing derogatory statements. As a result of
which, Daivik blamed himself thinking that he was the one in the marriage who was impotent
and could not give the joy of a child to Aadvika and family. Knowing this bitter truth, Daivik
felt helpless that he had no rights or say in his own child’s birth rights.

Daivik feeling angry and helpless, filed a complaint on 02.12.2023 against Aadvika
under Section 312 of the Penal Code of Amanabaad, 1860. The case was filed before the
Judicial Magistrate First Class, wherein Daivik prayed the court to stop Aadvika from
exercising her abortion rights. He also filed a civil suit in City civil court for damages for the
loss of child the past 3 times as well as for the mental agony caused due to unethical, cruel
and illegal termination of pregnancy and the social stigma that he had to face due to Aadvika.

The Court passed the order on 29.12.2023 in favour of Daivik providing the rationale
that Daivik has the right to equality to have a consent in the abortion of the child who has
been conceived from the wedlock. The Civil Court also awarded damages to Daivik.
Aadvika, being aggrieved by such orders approaches before the High Court of Kalyanpura to
challenge the order dated 29.12.2023.
11
 The High Court after listening to both the sides, set aside the order of the lower courts
and upheld the rights of the woman to get an abortion done under Section 3 of the Medical
Termination of Pregnancy Act as she was fulfilling all the conditions under the Act. The order
was passed on 20.01.2024.

Daivik, left with no other option approaches the Supreme Court of Amanabaad
challenging the judgement of High Court of Kalyanpura and to decide the legal validity of the
substantial question of law having only female consent for abortion of child conceived from a
marriage by filing a Special Leave Petition.

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 STATEMENT OF ISSUES

Issue No.1 Whether or not this SLP is maintainable before the Supreme Court of
Amanabaad?

Issue No.2 Whether or not the fundamental rights of the husband are infringed in the present
case?

Issue No.3 Whether or not the consent of the husband should be made mandatory and equally
important before termination of pregnancy conceived from a marriage?

Issue no 4: - Whether or not respondent is guilty of Mental Cruelty under Sec. 13(1)(ia) of
IPC, 1860?

Issue no 5: - Whether or not the respondent is guilty of Miscarriage under Sec 312 of IPC?

13
 SUMMARY OF ARGUMENTS

Issue No.1 Whether or not this SLP is maintainable before the Supreme Court of
Amanabaad?

It is humbly submitted before hon’ble SC that SLP is not maintainable as there is no

substantial question of law and also HC of Kalyanpura had properly gone through all fact and
evidence before hon’ble SC and passed a appropriate order.

Issue No.2 Whether or not the fundamental rights of the husband are infringed in the
present case?

It is humbly submitted before hon’ble SC that no fundamental right of husband are infringed.

Issue No.3 Whether or not the consent of the husband should be made mandatory and
equally important before termination of pregnancy conceived from a marriage?

It is humbly submitted before hon’ble SC that as per sec 3(4)(b) consent of husband is not
mandatory and equally important before termination of pregnancy conceived from a
marriage.As per sec 3(4)(b) Save as otherwise provided in clause (a), no pregnancy shall be
terminated except with the consent of the pregnant woman.

Issue no 4: - Whether or not respondent is guilty of Mental Cruelty under Sec. 13(1)(ia)
of IPC, 1860?

It is humbly submitted before the hon’ble SC that respondent is not guilty for Mental Cruelty
under Sec. 13(1)(ia). Because respondent was suffering from mental trust issues and covers
under the MTP Act, Sec. 3(4)(b).

14
Issue no 5: - Whether or not the respondent is guilty of Miscarriage under Sec. 312 of
IPC?

It is humbly submitted before the hon’ble SC that the respondent had done miscarriage under
MTP Act, their for respondent is not guilty of Miscarriage under sec. 312 of IPC, Respondent
had abort her child under the MTP Act.

15
 ARGUMENTS IN ADVANCED

Issue No.1 Whether or not this SLP is maintainable before the Supreme Court of
Amanabaad?

It is humbly submitted before the Hon’ble Court that the filing of Special Leave Petition
under Art 136 of Constitution of India is not justifiable. Special leave petition means that you
take special permission to be heard in appeal against any High Court/tribunal verdict.
Usually, any issue decided by the State HC is considered as final, but if there exist any
constitutional issue or legal issue which can only be clarified by the Supreme Court of India
then, this leave is granted by the Supreme Court & this is heard as a Civil or Criminal appeal
as the case may be. Going to the Supreme Court in appeal should not be considered a matter
of right by anyone but it is matter of privilege which only the Supreme Court will grant to
any individual if there exist an important constitutional or legal issue involved in any case
that was not properly interpreted by the concerned HC against whose judgment you approach
the Highest court of the country not otherwise.

In this present case earlier Hon’ble HC of Kalyanpura passed order in the favour of
Respondent permitting for abortion under Sec. 3(4)(b) of MTP Act, after interpreting all the
fact & evidence of the present case leaving no substantial question of law.

In the case of N. Suriyakala v/s A. Mohandoss & Ors.[1], the court stated that Art 136 does
not provide right to appeal but provide discretion power which allow Hon’ble SC to interfere
only in exceptional cases.

In the case, Pritam Singh vs The State of Punjab [2], concluding the discussion on Article
136, it was held by the Supreme Court that ‘Generally speaking, this court will not grant
Special Leave, unless it is shown that exceptional and special circumstances exist, that
substantial and grave injustice has been done and that the case in question presents features of
sufficient gravity to warrant a review of the decision appealed against.’

In the case, Union of India v/s Era Educational Trust & another[3], Normally, this(Hon’ble
SC) Court would hesitate to interfere with an interlocutory order, but in a case where prima

16
facie it appears that the said order cannot be justified by any judicial standard, the ends of
justice and the need to maintain judicial discipline requires us to do so and to indicate the
reasons for such interference without prejudice to the rights of one side or the other.

1. [2007] 9 SCC 196

2. AIR 1950 SC 169
3. AIR [2000] SC 15731
17
Issue No.2 Whether or not the Fundamental Rights of the Husband are infringed in the
present case?

It is humbly submitted before Hon’ble SC that no fundamental of husband is infringed in the

present case. In the present case fundamental rights of wife are being delayed. Right to
Reproductive autonomy, Right to Privacy, Right to Abortion, Right to Choose, Right to
Dignity, Right to Bodily Integrity, Right to Safe & Legal Abortion, Right to Choose number
of Children. The council seek that if that this many fundamental rights of pregnant woman
will be infringed if judgement is passed within the favour of appellant.

In the case, Suchita Srivastava v/s Chandigarh Administration [4], it is said that, 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. The crucial consideration is that a woman's right to privacy, dignity and bodily
integrity should be respected. This means that there should be no restriction whatsoever on
the exercise of reproductive choices such as a woman's right to refuse participation in sexual
activity or alternatively the insistence on use of contraceptive methods.

In the case, K S Puttaswamy v/s Union of India [5], it is said that this Court held that the right
to privacy enables individuals to retain and exercise autonomy over the body and mind. The
autonomy of the individual was defined as “the ability to make decision on vital matters of
concern to life and furthermore Chelameshwar, J. held that a “woman’s freedom of choice
whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy.

In the case, X v/s Principal Secretary [6], it is said that the eligibility criteria for abortion
under the clause ‘change of marital status’ was made inclusive to unmarried and single
women recognising her right to individual liberty, bodily autonomy and safe and sound legal
abortion under Article 21 of the Constitution.

This specific case explain us that married woman are having fundamental right relating to the
abortion laws and the amanabaad is also providing those laws to unmarried woman.

18
In the case, Bhupinder Kumar v/s Angrej Singh [7], it is said that there is no doubt that a
woman's right to make reproductive choices is also a dimension of `Persona 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. The
crucial consideration is that a woman's right to privacy, dignity and bodily integrity should be
respected.

4. [2009] 9 SCC 1
5. [2017] 10 SCC 1.
6. [2022] INSC 740.
7. [2007] 147 PLR 580.

19
Issue No.3 Whether or not the consent of the husband should be made mandatory and
equally important before termination of pregnancy conceived from a marriage?

It is humbly submitted before Hon’ble SC that as per sec 3(4)(b) of the MTP Act consent of
husband should not be mandatory and equally important before termination of pregnancy.

Sec 3(4)(b) of the MTP Act says, ‘Save as otherwise provided in clause (a), no pregnancy
shall be terminated except with the consent of pregnant woman.’ Here it is clearly mentioned
that consent of only pregnant woman is necessary.

In the case of Anil Kumar Malhotra v. Ajay Pasricha [8], The Court noted in 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 cannot compel her to conceive and give birth to his child”. 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” 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.

There are sentences mentioned in above facts, ‘During the marriage, there were many ups and
down faced by the couple.’ Another is, ‘There were some gaps and disagreements between the
couple, but the family values and love always kept them together.’

According to the above sentence of present case the mental health and environment around
respondent were not favourable, which can cause severe mental injury to the respondent. This
is another reason why respondent wanted to abort the child as it was causing injury to mental
health of the respondent.

In case X v/s Secretary [6], it is said that, the expression “mental health” has a wide
connotation and means much more than the absence of a mental impairment or a mental
illness. The World Health Organization defines mental health as a state of “mental well-being

20
that enables people to cope with the stresses of life, realize their abilities, learn well and work
well, and contribute to their community. “The determination of the status of one’s mental
health is located in oneself and experiences within one’s environment and social context. Our
understanding of the term mental health cannot be confined to medical terms or medical
language but should be understood in common parlance. The MTP Act itself recognizes the
need to look at the surrounding environment of the woman when interpreting injury to her
health. Section 3(3) states that while interpreting “grave injury to her physical or mental
health”, account may be taken of the pregnant woman’s actual or reasonably foreseeable
environment. The consideration

of a woman’s “actual or reasonably foreseeable environment” becomes pertinent, especially

when determining the risk of injury to the mental health of a woman.

Also, an Article of WHO says, ‘Mental health is a state of mental well-being that enables
people to cope with the stresses of life, realize their abilities, learn well and work well, and
contribute to their community. It is an integral component of health and well-being that
underpins our individual and collective abilities to make decisions, build relationships and
shape the world we live in. Mental health is a basic human right. And it is crucial to personal,
community and socio-economic development.’

Also, respondent didn’t want informed the appellant about abortion as appellant would delay
or pressurize respondent to stop the process of abortion. This is the reason respondent didn’t
inform to appellant about abortion

In an American case law, Planned Parenthood v Casey (1992) [9], the court has observed that
notifying the husband about the abortion might lay a burden on the pregnant wife. In cases
when the wife has not taken the consent of the husband and notifies him about the abortion,
she might be risking her safety. Therefore, according to most of the courts across the world, it
is not necessary to notify the husband about the abortion. Furthermore, court stated, The
Court viewed spousal notification requirements as an unreasonable burden on women who
may be concerned about their own or their children's safety.

Another case is, Nirav Anupambhai Tarkas v. State of Gujarat[10], the Gujarat High Court
affirmed the dismissal of a criminal case filed by a husband against his wife and her family for
having an abortion despite his opposition, on the grounds that his consent was not required.

8. C.R 6337/2011
21
 9. 505 U.S. 833 [1992]
10. 2011 SCC Online Goj 5577

Issue no 4: - Whether or not respondent is guilty of Mental Cruelty under Sec. 13(1)(ia)
of IPC, 1860?

It is humbly submitted before Hon’ble SC that respondent is not guilty for Mental Cruelty
under Sec. 13(1)(ia) of Hindu marriage act as the act performed by respondent was not to hurt
the appellant but to secure her fundamental rights.

In most cases the father secures the child in the womb rather than mother and, in the present
case respondent was having trust issues towards appellant in their current martial life.

In the case of Suman kapur v. Sudhir kapur[11], judgment passed that when wife terminate
her pregnancy without the consent of her husband, it is not a cruelty on the husband. In this
case judgment was passed in the favour of wife and declared that wife can terminate her
pregnancy with the only consent of herself. Therefore, here respondent is not guilty under this
particular section.

22
11. AIR 2009 SC 589

23
Issue no 5: - Whether or not the respondent is guilty of miscarriage under sec 312 of
IPC?

It is humbly submitted before Hon’ble SC that respondent is not guilty for miscarriage under
Sec. 312 of IPC as it is her fundamental right that is Right to abortion and also MTP Act was
taken in consideration. Hence MTP Act, 1971 being a special act over rides the Sec. 312 of
IPC.

In the case, Jacob George v. State of Kerala [12], the court stated, provisions of the IPC
relating to miscarriage are subservient to the MTP Act.

24
12. [1994] 3 SCC 430

25
 PRAYER

WHEREFORE, IN THE LIGHT OF ISSUES RAISED, AUTHORITIES CITED AND

ARGUMENTS ADVANCED, IT IS PRAYED THAT THIS HON’BLE COURT MAY
GRACIOUSLY PLEASED TO:

1. Reject the Special Leave Petition.

2. No fundamental rights of husband are being infringed.
3. None of the consent is required in termination of pregnancy other than pregnant
woman and guardian consent in case of pregnant is mentally disabled.
4. Respondent is not guilty for sec 312 of IPC and mental cruelty.

And pass any such order, other order that it deems fit in the interest of Justice, Equity and
Good Conscience. And for this, the Respondent as in duty bound, shall humbly pray.

Council on Behalf of Respondent

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