IN THE HON’BLE SUPREME COURT OF

INDIA

(PUBLIC INTEREST LITIGATION UNDER ARTICLE 32 OF THE CONSTITUTION OF

INDIA)

IN THE MATTERS OF

NIDHI…………………………..PETITIONER

Vs

UNION OF INDIA………………………………………………………RESPONDENT

IN THE ISSUES CONCERNING TO MARITAL RAPE; SECTION 375 EXCEPTION

OF IPC, 1860

MEMORIAL FILED ON BEHALF OF RESPONDENT

 TABLE OF CONTENTS

1. LIST OF ABBREVIATIONS

2. INDEX OF AUTHORITIES

3. STATEMENT OF JUISDICTION

4. STATEMENT OF FACTS

5. STATEMENT OF ISSUES

6. SUMMARY OF ARGUEMENTS

7. ARGUMENTS ADVANCED

8. PRAYER
 LIST OF ABBREVIATIONS

1. SC- Supreme Court

2. HC- High Court
3. PIL- Public Interest Litigation
4. AIR- All India Reporter
5. SCC- Supreme Court Cases
6. NGO- Non-Governmental Organization
7. IPC- Indian Penal Code, 1860
8. Art.- Article
9. AIR- All India Reporter
 INDEX OF AUTHORITIES

CASES:

1. State of Rajasthan v. Shri Nmarayan

2. Queen Empress v. Haree Mythee
3. Sree Kumar v. Pearly Karun

4. Saroja Rani v. Sudarshan Kumar Chada

5. State v Vikash
6. Bodhisattwa Gautam v. Subhra Chakraborty

BOOKS:
1. P.S.A. Pillai- Criminal Law 13th edition
2. Ratanlal & Dhirajlal- The Indian Penal Code 35th edition
3. Black’s Law dictionary, 9th edition, edited by Bryan a.garner
4. Constitution Of India by V N Shukla

OTHER SOURCES:
www.indiakannon.org
www.googlescholar.in
www.manupatrafast.com
www.google.in
 STATEMENT OF JURISDICTION

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

Article 32 of the Indian Constitution which confers as-

“32. 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 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
 STATEMENT OF FACTS

1. Nidhi and Subodh, aged 22 and 24 respectively, are two working professionals in the city
of Patiala. They have been live-in partners since 2017 and love each other. Their parents
were against them marrying each other. However, both of them managed to convince
their parents that this was the perfect match for them.
2. In December 2018, Nidhi and Subodh tied the knot as per the Hindu rituals and customs.
After their marriage, the relationship took a toll and it wasn’t the same as it had been
prior to the marriage.
3. The primary reason according to Nidhi was that Subodh had begun to be a more
dominating figure. He would now demand intercourse as if it were a matter of right rather
than it being an act of two consenting adults. He would never pay heed to the feelings of
Nidhi and this was something that hurt her.
4. When Nidhi tried to talk about this to her mother and mother-in-law, both of them had
the same view that it is the duty of an Indian wife to fulfill the wishes of her husband and
be a constant companion to him at any cost.
5. One day, Nidhi was watching a debate show on television on the topic of marital rape. A
few of the panelists strongly condemned Exception II to Section 375 of the Indian Penal
Code, 1860. They argued that it was based on the archaic concepts where the wife was
considered as possession and property of the husband. It was further argued that marital
rape also violated human rights and various rights of women under Article 21 of the
constitution. They also demanded that there should not be any distinction between rape
within and outside the marriage.
6. On the other hand, the other panelists argued that Exception II to Section 375 had been
inserted to preserve the institution of marriage and criminalization of sexual intercourse
between spouses had potential to wreak havoc on the society. Further, they argued that
the Indian law delivers proper protection to women rights and the Legislature is well
aware of the situation and demands of the Indian society.
 7. Society for Women’s Rights is an NGO that works for the development and welfare of
women. It is an organization that has previously helped to bring in women-centric laws
by rallying for classification and enactment of women rights via legislations and judicial
intervention.

8. Deeply moved by the debate, Nidhi finally decided to fight for her rights and what she
thought was a blatant injustice against her persona. She approached Society for Women’s
Rights and narrated her grief to their activists. The members of the NGO decided to
approach the court for seeking to eradicate the social plague of marital rape.

A Public Interest Litigation was filed by the NGO before the Hon’ble Supreme Court of India
with respect to the violation of fundamental rights of married women of all ages in the form of
marital rape. The PIL also challenges the constitutional validity of Exception II to Section 375 of
the Indian Penal Code, 1860.
 SUMMARY OF ISSUES

1. Whether marital rape should be criminalized or not?

2. Whether sexual intercourse without wife’s consent under section 375 of IPC, 1860
amounts to rape and is unconstitutional?
3. Whether the Exception 2 to Section 375 of IPC is violative of Article 21 of Indian
Constitution?
 SUMMARY OF ARGUMENTS

Issue 1: Whether marital rape should be criminalized or not?

Marital rape in India cannot be criminalized as India comes with its own set of complexities like
literacy, lack of financial empowerment of the majority of females, the mindset of the society,
vast diversity, poverty, etc., the affidavit submitted by the Centre in the Delhi High Court
pointed out.

The Centre has also pointed out that it would not treat the path of following western traditions
blindly.

It said that before criminalizing marital rape, it is essential to determine what constitutes ‘marital
rape’ – the judgment as to whether the sexual act is marital rape or not should rest with the wife
only.

Issue 2: Whether sexual intercourse without wife’s consent under section 375 of IPC, 1860
amounts to rape?

The law in India does not criminalize marital rape i.e., IPC 1860 does not recognize that it is a
crime for a husband to have sexual intercourse without wife’s consent that amounts to rape his
wife.
 ARGUMENTS ADVANCED

Issue 1: Whether marital rape should be criminalized or not?

That marital rape is not defined in any statue/ laws. While rape is defined under Section 375 of
IPC defining marital rape would call for a broad based consensus of the society.

What may appear to be marital rape to an individual wife, it may not appear so to others. As to
what constitutes marital rape and what would constitute marital non rape needs to be defined
precisely before a view on its criminalization is taken.

2. That it has to been ensured adequately that marital rape does not become a phenomenon which
may destabilize the institution of marriage apart from being an easy tool for harassing the
husbands. The Supreme Court and various High Courts have already observed the rising misuse
of Section 498 of IPC.

3. That merely deleting Exception 2 will in no way serve any useful purpose as a man is said to
commit 'rape' as defined under Section 375 of IPC cannot be the same in the case of marital rape.
If all sexual acts by a man with her own wife will qualify to be marital rape, then the judgment as
to whether it is a marital rape or not will singularly rest with the wife. The question is what
evidences the Courts will rely upon in such circumstances as there can be no lasting evidence in
case of sexual acts between a man and his own wife.

4. That as regards Section 376B of IPC and 198B of CrPC it is stated that these Sections flow
from the exception 2 of Section 375 as presently sexual acts by a man with his own wife is not
seen as an offence.
5. That the Law Commission in its 172 Report titled Review of Rape Laws and the Department
Related Parliamentary Standing Committee on Home Affairs in its 167th Report have examined
the matter and did not recommend the criminalization of marital rape. Even though the Justice J
S Verma Committee in its Report titled "Amendments to Criminal Law" recommended that the
exception to marital rape be removed, it also pointed out that it is also important that the legal
prohibition on marital rape is accompanied by changes in the attitude of the prosecutors, police
officers and those in society generally. Thus merely deleting the exception 2 of Section 375 may
not stop marital rape. Moral and social awareness plays a vital role in stopping such an act.

6. That the fact that other countries, mostly western, have criminalized marital rape does not
necessarily mean India should also follow them blindly. This country has its own unique
problems due to various factors like literacy, lack of financial empowerment of the majority of
females, mindset of the society, vast diversity, poverty, etc. and these should be considered
carefully before criminalizing marital rape.

7. That criminal law is in the Concurrent List and implemented by the States. There is a vast
diversity in the cultures of these states. It is necessary to implead the State Governments in the
matter to know the opinion of these states to avoid any complications at a later stage.
Issue 2: Whether sexual intercourse without wife’s consent under section 375 of IPC, 1860
amounts to rape and is unconstitutional?

 The law in India does not criminalize marital rape i.e., IPC 1860 does not recognize that
it is a crime for a husband to have sexual intercourse without wife’s consent that amounts
to rape his wife. The reasons for this are manifold and can be found in various reports of
the Law Commission, Parliamentary debates and Judicial decision. The reasons range
from protecting the sancity of the institution of marriage to the already existing
alternative remedies in law.
 “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for
by their mutual matrimonial consent and contract, the wife had given herself in kind unto
the husband, which she cannot retract.” 1(Sir Matthew Hale, C.J, in 17th century
England).

This established the notion that once married, a women does not have the right to refuse sex with
her husband. He asserted that, upon marriage, the wife automatically hands over her legal person
to the husband and consents to all sexual acts, which cannot be retracted at any later date for no
reason whatsoever. He introduced within the marriage, a notion of ‘implied consent’ that started
at the time of the marriage and continued for the entire course of the marriage, and such consent
was deemed irrevocable by Lord Hale.

It seems that the Supreme Court also accepted this notion as in 1992 it held that ‘it is not
possible to believe that when a married woman has sex with her husband in the privacy of their
bed-room she would suffer abrasions on her body and the vaginal walls.’ 2 Such approach of
Indian judiciary shows that forced and violent sex in marriage is not possible.

1
1 Hale, History of the Pleas of the Crown 629 (1778)
2
State of Rajasthan v. Shri Nmarayan, AIR 1992 SC 2004
There is also one case of Bandit Queen, which depicts the tragic story of a village girl. Phoolan
Devi, was exposed from an early age to the lust and brutality of some men. She was married to a
man old enough to be her father. She was beaten and raped by him. This is truly one story that
shows the apathy of the existing society.3

Most recently A Special Fast Track Court in New Delhi has ruled that intercourse between
husband and wife, even if forcible, is not rape and no culpability can be fastened upon the
accused. The woman had alleged that the accused named Vikash sedated her and took her to the
office of the registrar of marriages in Ghaziabad in an intoxicated state. He got the marriage
documents signed by her on March 4, 2013. Later, Vikash raped her and then abandoned her. 4
However, abovementioned statement of Sir Mathew Hale seems to be overruled by House of
Lords in its progressive decision giving in the case of In R v. R5, declaring that the husband
could be charged as a principle offender in the rape of his wife. Sadly, this decision has not been
followed in India where marital rape exemption to the husband still exists.

The Judicial decision of Queen Empress v. Haree Mythee, it was held that the wife over the age
is of 15, and then the rape law does not apply in that situation. In this case, the husband was
punished because the wife was of 11 years only.

In the Kerala High Court, Sree Kumar v. Pearly Karun, it was observed that the wife does not
live separately with the husband under the Judicial separation and being subject to sexual
intercourse without her will the act does not amount to a rape. Hence, it was said that the
husband was not found to be guilty of raping his wife though he was de facto guilty of doing or
committing the act.

3
The parable of Phoolan Devi) The Hindu, http://www.thehindu.com/2001/08/05/stories/1305061c.htm
(August05,2001
4
State v. Vikash SC No.1/14
5
(1992) 1 AC 599 25
 Cultural and Societal Sanction of Marital Rape

“…..A husband whether he has any merit or not, is a very diety” 6 These lines clearly indicate
that not just laws, but cultural values of Indian Society are the reason that married women’s
autonomy (sexual and otherwise) is routinely rejected and denied.

Hinduism is the only religion in the world where the husband is put on par with god. The Laws
of Manu, India’s ancient revered scripture merrily educates women. His dictum that a wife ought
to respect her husband as God and serve him faithfully, even if he were vicious and void of any
merit, was accepted as applicable to all women.7

For women, especially in the Hindu Social system the husband has special place: Husband is
worshipped like God; The strong tradition of, ‘doli mein jayegi aur arthi mein ayegi,’ meaning,
that once a girl enters her marital home only her bier should come out, leans upon religion for
legitimacy. A lot of blame is to be placed on the Indian society at large who bring up young
women with the idea of pati (husband) being parameshwar (God). Pleasing the husband is
regarded as the sacred duty of the wife especially when her husband is main income earner to the
family and denying sexual or other whims regarded as sin.

6
Ayodhya Kanda, 2.62, Ramcharitmanas
7
U. Niaz, Violence against women in South Asian countries, Archives Women’s Mental Health (2003)
Issue 3: Whether the Exception 2 to Section 375 of IPC is violative of Article 21 of Indian
Constitution?

1. It is humbly submitted before this Hon’ble SC that this exception has been kept
considering the traditional customs in mind and its repeal may be violative to conjugal
rights of husband. Respondent feels that it has a duty to honour 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.

Traditional Theories:

 Contract Theory: Marriage is generally treated as a contract and one of the conditions

of such a contract involves the implied consent of the wife to fulfill the sexual needs
of the spouse as per his whims and fancies. This gives to the husband a marital right to
enter into sexual intercourse with his wife. The contract theory, though fraught with
flaws has survived for a considerable time period. 8 According to this theory, there
exists no concept of marital rape because sexual intercourse between spouses is
always considered consensual.
 Women Treated As Property: This theory was mostly followed in the common law
system. The basic presumption was that the husband was the owner of his wife and
therefore could not be said to rape his own property. As women were treated as
property9, common law believed that seeking consent for sexual intercourse was
violative of man’s right to property.
 Marital Unity: Common law also believed that once married, the identity of a wife
merges with that of her husband and hence, the husband was considered unable to rape
himself. This theory considers the spouses to be a single entity.10
8
Spousal Rape: The Uncommon Law, ABA Journal, 1980, 1088.
9
Confronting Global Gender Justice: Women’s Lives, Human Rights, Debra Bergoffen, Routledge, 2010, 288.
10
 Family Law, Kelly Weisberg, Aspen Publishers, 2008, 84.

 
Exception 2 of S375 of the IPC (‘exception clause’) does not state any reason for the exclusion
of sexual intercourse or sexual acts between a man and his wife from the purview of rape. Since
the crux of the focus of the section is on consent, it is possible that an irrefutable presumption of
consent operates when the relationship between the victim and the perpetrator is that of marriage.
However, at the same time, it is also possible that this was a legislative decision to exclude the
operation of this section from married relationships given the sanctity that this institution has
assumed in our society. This is probable since there are sections in the IPC where spouses are
exempt from its application.11

The Law Commission was directly faced with the validity of the exception clause in the 172nd
Law Commission Report. Here, during the consultation rounds, arguments were advanced
regarding the validity of the exception clause itself. It was argued that when other instances of
violence by a husband toward wife was criminalized, there was no reason for rape alone to be
shielded from the operation of law. The Law Commission rejected this argument since it feared
that criminalization of marital rape would lead to “excessive interference with the institution of
marriage”. This report sheds light on the interplay between marital rape and the sanctity of the
institution of marriage.

11
The Indian Penal Code, 1860, ss136, 212 & 216
In light of this, the Criminal Law Amendment Bill, 2012 (‘Amendment Bill, 2012’) was drafted.
In this Bill, the word ‘rape’ was replaced with ‘sexual assault’ in an attempt to widen its scope
but the Bill did not contain any provision to criminalize marital rape. The Amendment Bill, 2012
did not take into account the suggestions laid down in the J.S. Verma Report. The Parliament
Standing Committee on Home Affairs in its 167th Report (‘Standing Committee Report’)
reviewed this Amendment Bill, 2012 and also organized public consultations. 12 Here, it was
suggested that S375 must be suitably amended to delete the exception clause. However, the
Standing Committee refused to accept this recommendation. The Standing Committee Report
argued that, first, if they did so, the “entire family system will be under greater stress and the
committee may perhaps be doing more injustice”. Second, the Committee reasoned that
sufficient remedies already existed since the family could itself deal with such issues and that
there existed a remedy in criminal law, through the concept of cruelty as under S498A of the
IPC.13

ANALYSING THE EXCEPTION CLAUSE IN LIGHT OF CONSTITUTIONAL LAW

Having established that the conceptualization of a private sphere is flawed and that constitutional
rights have a role to play in a marriage, in this part, our aim is to show that the exception clause
is unconstitutional. Before we embark on our attempt to do the same, we must go back to the
conflict that came about after Sareetha and Harvinder Kaur. In light of these contrasting
decisions, the Supreme Court in Saroja Rani v. Sudarshan Kumar Chada14, attempted to settle
the issue and ultimately upheld the constitutionality of the RCR(Restitution of conjugal rights).
The Court agreed with the outcome in Harvinder Kaur. However, on a closer reading, it is
slightly different from the Delhi High Court decision.

12
0 STANDING COMMITTEE ON HOME AFFAIRS, Fifteenth Lok Sabha, Report on The Criminal Law
(Amendment) Bill, 2012, One Hundred and Sixty Seventh Report, 45, (December 2015).
13
The Indian Penal Code 1860, §498A.
14
Saroja Rani v. Sudarshan Kumar Chada, AIR 1984 SC 1562.
Here, the Court holds that the purpose of RCR is to preserve a marriage, and hence, when
analyzed from this perspective, it does not violate either Article 14. The Court argues that the
purpose of the law justifies a separate law for married women and this does not violate Article 14
since there is a reasonable classification. However, the Court held that the concept of RCR is not
in tandem with the concept of the ‘marital sphere’.

Transporting this to the marital rape, the argument would be that even though the law treats a
married woman and an unmarried woman different with respect to their rights, it would not be in
violation of Article 14 since marriage serves as a reasonable classification. It is important to note
that the argument is not that rape per se is not unconstitutional, but rather that marriage satisfies
the criteria laid down for reasonable differentia under Article 14 of the Constitution. Therefore,
despite rape being a violation of Article 21, 15 it is justified when it is ‘marital’ rape since it
amounts to a reasonable classification.

PRAYER
15
Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490
THEREFORE, in light of the issues raised, arguments advanced and authorities cited it is most
humbly and respectfully requested that this Hon’ble Supreme Court to adjudge on behalf of:

1. Petitioners may be requested to submit their reports to the Government of India for their
consideration by the competent authorities to bring appropriate legislation for the
consideration of the legislature.
2. Meanwhile, Respondent is ready to maintain that the consent of wife will be considered
as part of exception 2 to the section 375 of the IPC, the amendment act consequent to the
prayer 2 is passes.

And

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

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

All of which is respectfully submitted

Counsel for the respondent