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Before
THE HON’BLE SUPREME COURT OF INDIANA
3rd AMITY NATIONAL MOOT COURT COMPETITION, 2018

U/A 32

OF

THE CONSTITUTION OF INDIANA

___________________________________________________________________________

NATIONAL COMMISSION FOR WOMAN & THE NATIONAL COMMISSION FOR CHILD
(APPELLANT)

V.

UNION OF INDIANA
(RESPONDENT)

[MEMORIAL ON BEHALF OF RESPONDENT]

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TABLE OF CONTENTS

SL. No. DELINEATIONS PAGE

1. ABBREVIATIONS 3

2. INDEX OF AUTHORITIES 4

3. STATEMENT OF JURISDICTION 5

4. STATEMENT OF FACTS 6

5. STATEMENT OF ISSUES 7

6. SUMMARY OF ARGUMENTS 8

7. ARGUMENTS ADVANCED 9

8.. PRAYER 13
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ABBREVIATIONS
ABBREVIATION ACTUAL TERM ACTUAL TERM
& And
A.P. Andhra Pradesh
CrPC Criminal Procedure Code
HC High Court
Ld. Learned
GUJ Gujrat
SC Supreme Court Supreme Court
SCC Supreme Court Cases Supreme Court Cases
u/s Under Section(s) Under Section(s)
Vs. Versus Versus
Hon’ble Honorable Honorable
NCW National council for women
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INDEX OF AUTHORITIES

CASES
1. Meera Santosh Pal And Ors vs Union Of India And Ors AIR 2017 SC 461
2. Indu Devi vs The State Of Bihar And Ors AIR 2017 SC 1055
3. X v. Union of India AIR 2016 SC 3525
4. Suchita Srivastava and another v. Chandigarh Administration(2009)9 SCC 1
5. Sheetal Shankar Salvi and another v. Union of India 2017(5) SCALE 428
6. Collector of Customs v. Digvijaya Singhji Spinning & Weaving Mills AIR 1961 SC 1549

Statutes
1. THE CONSTITUTION OF INDIA, 1950
2. THE INDIAN PENAL CODE,1860
3. THE PROHIBITION OF CHILD MARRIAGE ACT, 2006
4. THE MEDICAL TERMINATION OF PREGNANCY ACT, 1971
5. THE MEDICAL TERMINATION OF PREGNANCY (AMENDMENT) BILL,2014
6. THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005
7. THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015
8. THE HINDU MARRIAGE ACT, 1955

Books
D.D Basu, Commentary on the Constitution Of India, 3722 (8th ed. Wadhwa Nagpur, 2008)

Website

1. www.Indiankanoon.org
2. www.google.com
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STATEMENT OF JURISDICTION

The appellants have approached the Hon’ble Supreme Court of Indiana under Article 136 of the
Constitution of India. Leave has been granted by this Hon’ble Court and the matter has now been
listed for arguments. The provision under which the appellant has approached this Hon’ble Court
and to which the respondent humbly submits, is read herein under as:

Article 32 of the Constitution of India, 1950:

Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by this Part (Part III) is guaranteed
(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
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament
may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the
powers exercisable by the Supreme Court under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this
Constitution
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STATEMENT OF FACT

1. On behalf of the published report, the NCW filed a PIL on the ground that the provision of the
MTPA, 1971 is unconstitutional and violative of Article 21 which imposes a statutory bar for
termination of pregnancy beyond a 24-week period and demanded an amendment of Section 3 of
the MTPA, 1971. It was proposed that the said section should provide that “time period of
pregnancy shall not apply” in a decision to abort a fetus diagnosed with “substantial fetal
abnormalities as may be prescribed”. The NCW also contended that the sexual intercourse without
the wife’s consent is also rape under section 376 and violation of Article 14, 15 and 21 of the
Constitution of Indiana.
2. The National Commission for Protection of Child (hereinafter mentioned as NCPC) filed a PIL on
the grounds that The Prohibition of Child marriage Act, 2006 makes child marriage only voidable
at the girl’s instance after she attains majority but it should be illegal in the Country. The NCPC
also challenged the Exception 2 to Section 375 (rape) of the Indian Penal Code, which permits
“intrusive sexual intercourse with a girl child aged between 15 and 18 only on the ground that she
is married which is discriminatory and thus, violates Art. 21 of Constitution i.e. right to life,
personal liberty and equality

STATEMENT OF ISSUES

1. Whether the MTPA, 1971 along with its recent amendment is fulfilling popular aspirations or it
requires another amendment to make it perfect?
2. What should be the basis of defining immediate need to terminate the pregnancy the rights of
mother or the other human being which has taken shape but yet to born?
3. Whether such cases require a blanket solution or case to case solution may be taken up on the basis
for priority by Hon’ble court to avoid its misuse to cover female feticide?
4. Whether Exception 2 to Section 375 (rape) of the Indiana Penal Code is violative of Ariticle 21 of
the Constitution of Indiana?
5. Whether sexual intercourse with the wife’s consent and she being under eighteen is also rape and
can be prosecuted under section 376 and is also violative of Article 14, 15, and 21 of the
Constitution of Indiana?
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SUMMARY OF ARGUMENT

1. Whether the MTPA, 1971 along with its recent amendment is fulfilling popular aspirations
or it requires another amendment to make it perfect?

It is humbly submitted before this Hon’ble Court that the MTPA, 1971 along with its recent
amendment is fulfilling popular aspirations and it doesn’t require another amendments until technology
upgrades and allows medical practitioners to abort a fetus of more than 24 weeks guaranteeing the safe
being of the women. The current amendment is based upon various reports submitted by board of experts
and respondent believes that this matter requires more reliance upon the expert advice than the popular
aspirations.

2. What should be the basis of defining immediate need to terminate the pregnancy the rights
of mother or the other human being which has taken shape but yet to born?

It is humbly submitted before this Hon’ble Court that the human rights should not be only
towards the people who have taken birth but should also be there towards who are yet to take
birth as that fetus has no one to take it’s side. Hence, termination of pregnancy is not only the
sole right of mother but also of the child yet to born and therefore, the decision requires analysis
of both rights.

3. Whether such cases require a blanket solution or case to case solution may be taken up on
the basis for priority by Hon’ble court to avoid its misuse to cover female feticide?

It is humbly submitted before this Hon’ble Court that any blanket solution as perceived by the
Ld. Counsel for petitioner may lead to its misuse by gender fanatics to cover another social evil
and heinous crime of female feticide and hence is not recommended. A better solution in this
case may be of considering special case as exception on priority basis which will allow a remedy
to the women aggrieved and will work as check upon the tendency to cover female feticide.

4. Whether Exception 2 to Section 375 (rape) of the Indiana Penal Code is violative of Article
21 of the Constitution of Indiana?

It is humbly submitted before this Hon’ble Court that this exception has been kept considering
the traditional customs in mind and its repeal may be violative of conjugal rights of husband.
Respondent feels that it has a duty to honor popular sentiments while maintaining progressive
approach to ensure that there is no discord between two which will affect the implementation of
new law and ultimately defeating its nature.
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5. Whether sexual intercourse with the wife’s consent and she being under eighteen is also rape
and can be prosecuted under section 376 and is also violative of Article 14, 15, and 21 of the
Constitution of Indiana?

This is another important question which pops up when exception 2 to section 375 of IPC is
questioned. This will allow parents to dominate the wish of the child till her attaining adulthood
which again be violative for her right to life in a way that she will be denied right to cohabit the
person she chose to marry.
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PRAYER

Wherefore in the light of the facts stated, issues raised, authorities cited and arguments advanced,
it is most humbly prayed before this Hon’ble Court that it may be pleased to:-
1. The appeal having no merit may be dismissed with the observation that individual cases
for termination of pregnancy in advance stage that is after 24th week of conception may
be taken up with the appropriate court for proper analysis of the facts and to avoid its
misuse to cover female feticide.
2. Petitioners may be requested to submit their reports to the Government of Indiana for
their consideration by the competent authorities to bring appropriate legislation for
consideration of the legislature.
3. Meanwhile, Respondent is ready to maintain that consent of wife will be considered as
part of exception 2 to the section 375 of IPC, till an amendment act consequent to the
prayer 2 is passed.

AND
Pass any other order that it may deem fit in the interest of Justice, Equity and Good
Conscience.

And for this, the appellant as in duty bound shall humbly pray.

(Counsel for the Union of Indiana)