MOOT COURT & INTERNSHIP

SCHOOL OF LAW, KIIT (DEEMED TO BE UNIVERSITY)

IN THE HON’BLE SUPREME COURT OF HIND

IN THE MATTER OF:

SPECIAL LEAVE PETITION NO. 1028 OF 2021 (U/A 136 OF THE CONSTITUTION OF HIND)

WITH

PETITION (U/A 32, OF THE CONSTITUTION OF HIND)

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE OF REPUBLIC OF HIND

AND HIS COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF REPUBLIC OF HIND

~MEMORIAL FOR THE RESPONDENT~

 TABLE OF CONTENTS

Contents
Table of Contents...........................................................................................................................1
List of Abbreviation.......................................................................................................................2
Index of Authorities.......................................................................................................................3
Statement of Jurisdiction..............................................................................................................5
Statement of Facts..........................................................................................................................6
Statement of Issues........................................................................................................................7
Statement of Arguments................................................................................................................8
Arguments Advanced....................................................................................................................9
[1].That it is a fit case where the Court should convict the accused u/s 302 IPC.................9
[1.1] That Section 302 of IPC can be charged based on the facts of the case....................9
[1.2]. There was no sudden and grave provocation..........................................................10
[2]. That marital rape should not be criminalized................................................................12
[2.1]. That marital rape is not defined in any statue/ laws...............................................12
[2.2]. That it has to been ensured adequately that marital rape does not become a
phenomenon which may destabilize the institution of marriage.....................................13
[2.3]. That the fact that other countries, mostly western, have criminalized marital
rape does not necessarily mean India should also follow them blindly...........................14
Prayer............................................................................................................................................17

1
 LIST OF ABBREVIATION

Abbreviation Expansion
§ SECTION
§§ SECTIONS
¶ PARAGRAPH
¶¶ PARAGRAPHS
A.I.R. ALL INDIA REPORT
Art. ARTICLE
Arts. ARTICLES
THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF
CEDAW
DISCRIMINATION AGAINST WOMEN, 1981
ch. CHAPTER
cl. CLAUSE
Commr. COMMISSIONER
Cr.P.C CODE OF CRIMINAL PROCEDURE, 1973
i.e. THAT IS
I.P.C. INDIAN PENAL CODE, 1860
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS,
ICCPR
1976
Id. IBID
PIL PUBLIC INTEREST LITIGATION
S.C. SUPREME COURT
S.C.C. SUPREME COURT CASES
SLP SPECIAL LEAVE PETITION
u/s UNDER SECTION
UDHR UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948
UOI UNION OF INDIA
v. VERSUS
Vol. VOLUME

2
 INDEX OF AUTHORITIES

BOOKS AND DICTIONARIES CITED

1. BLACK’S LAW DICTIONARY (Bryan A. Garner ed., 7th ed. 2001)

2. DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (8th ed. 2007)

3. M. P. JAIN, INDIAN CONSTITUTIONAL LAW (8th ed. 2018)

4. RATANLAL & DHIRAJLAL, THE INDIAN PENAL CODE (34th ed. 2014)

5. S.R. MYNENI, THE LAW OF EVIDENCE (2nd ed. 2014)

6. SURINDER MEDIRATTA, CRIMES AGAINST WOMEN AND LAW (1st ed. 2010)
V.N. SHUKLA CONSTITUTION OF INDIA (M.P. Singh rev. Abhinandan Malik ed. 12th ed.
7.
2013)
8. WEBSTER’S NEW EXPLORER ENCYCLOPEDIC DICTIONARY (2006)

CONSTITUTIONAL TEXTS REFERRED

1. The Constitution of Indiana, 1950

STATUTES REFERRED

1. CODE CRIM. PROC. (The Code of Criminal Procedure, 1974)

2. Indian Evidence Act, 1872
3. PEN. CODE (The Indian Penal Code, 1860)

INTERNATIONAL TREATY/ CONVENTIONS CITED

Convention on the Elimination of All Forms of Discrimination against Women, Sept.3,

1.
1981, 13 U.N.T.S. 1249

2. International Covenant on Civil & Political Rights, Mar. 23, 1976, 999 U.N.T.S.171

3
 INTERNET SOURCES

1. https:://home.heinonline.org (HEIN ONLINE)

2. www.jstor.org (JSTOR)
3. WWW.manupatra.in (MANUPATRA)
4. www.scconline.com (SCC ONLINE)
5. www.un.org (UNITED NATIONS WEBSITE)
6. www.wisdomlib.org (WISDOM LIBRARY)

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 STATEMENT OF JURISDICTION

Special Leave Petition 1028/ 2021 U/A 136

¶1. The petitioner herein is Chloe. Under art. 136 of the Constitution of Hind, 1950, this Hon’ble
Court has been vested, in its discretion, to 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. In this case, the petitioner has preferred an appeal against the
impugned orders of the Hon’ble High Court of Purushpur.

PIL U/A 32

¶2. The petitioner humbly submits to the jurisdiction of this Hon’ble Court under art. 32 of the
Constitution. The petitioner has approached this Hon’ble Court in apprehension of the violation
of rights that inevitably occur due to the status quo of marital rape. Therefore, the petitioner
maintains that the jurisdiction of art. 32 of the constitution, which protects the citizens of Hind
from any violation of their fundamental rights, is applicable in the present case.

The present memorandum sets forth the facts, contentions and arguments in the present case.

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 STATEMENT OF FACTS

¶3. In the Republic of Hind, Lucifer Morningstar and Chloe got married on 23.10.2000. Within
two year, they were blessed by a son with special needs. Son’s medical expense derailed their
budget and economic hardships followed which led to frequent quarrels between the couples.

¶4. Lucifer got addicted to alcohol and started beating his wife in drunken state which worsens
their married life. His wife tried to sort out the situation but eventually failed. On 02.01.2003,
after heavy liquor consumption, he beat her after heavy arguments which eventually led Chloe to
tell their parents about such incidents.

¶5. After their families’ intervention, everything got better for a couple of years but again Lucifer
got addicted to alcohol again. This time he would not only beat her, but would also have sexual
intercourse against her will and will regularly threaten her of killing their child if she again tells
her family of his behavior.

¶6. On the night of 21.03.2006, Lucifer again came home in a drunk state and beat his wife and
went to sleep in his bedroom. Injured and violated Chloe could not sleep the whole night of
trauma and at 4 a.m. the next morning went to his bedroom and attacked him with an iron rod.
She then repeated the same with her child.

¶7. Next day, when the maid arrived, she informed of such incident to the police. The husband
and the child were taken to the hospital where they were declared brought dead.

¶8. The trial court held Chloe guilty of culpable homicide because she acted under grave and
sudden provocation but the High Court reversed the judgment.

¶9. Hence this appeal lies in the Supreme Court of Hind along with a PIL for criminalization of
marital Rape.

Both the Petitions are clubbed together.

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 STATEMENT OF ISSUES

[1]. THAT THE ACT IS CULPABLE HOMICIDE AND NOT MURDER AND HON’BLE HIGH COURT
HAS NOT ERRED IN ITS DECISION

[2]. THAT MARITAL RAPE SHOULD NOT BE CRIMINALISED

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 STATEMENT OF ARGUMENTS

1. THAT IT IS A FIT CASE WHERE THE COURT SHOULD CONVICT THE ACCUSED U/S 302
IPC

¶10. That none of the ingredients of Exception 1 under section 300 IPC can be related to the
facts and circumstance of the present case. As the act done by the accused was at a time gap
of 5 hours so same can’t be considered to be a provocation, because for provocation time gap
should be very less. Hence it is humbly submitted before this Hon’ble Court that accused
should be convicted under section 302 of IPC as there was no sudden provocation and the
injured inflicted was so grave that it was sufficient in the ordinary course of nature to cause
death

2. THAT MARITAL RAPE SHOULD NOT BE CRIMINALIZED

¶11. The concept of marital rape is not a new development. It came into limelight when the
cosmopolitan group of women raged their voice against the inequality towards the married
women’s right on their body and manifest their grievance towards it. 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

8
 ARGUMENTS ADVANCED

[1].That it is a fit case where the Court should convict the accused u/s 302 IPC
¶12. It is humbly submitted before this Ld’ Court to try the accused under Section 302 IPC As
according to facts and circumstances there was no grave and sudden provocation.

[1.1] That Section 302 of IPC can be charged based on the facts of the case.
¶13. To charge an accused for a crime like murder certain ingredients which is defined under
section 300 of IPC1 should be satisfied. Section 300 of IPC reads as follows2

¶14. This section defines murder as ‘culpable homicide is murder, if it satisfies any or all of these
following conditions:-

1. The act by which the death is caused is done with the intention of causing death, or
2. If it is done with the intention of causing such bodily injury as the offender knows to be likely
to cause the death of the person to whom the harm is caused. Or
3. If it is done with the intention of causing bodily injury to any person and the bodily injury
intended to be inflicted is sufficient in the ordinary course of nature to cause death, or
4. If the person committing the act knows that it is so imminently dangerous that it must, in all
probability, cause death, or such bodily injury as is likely to cause death, and commits such act
without any excuse for incurring the risk of causing death or such injury as aforesaid.’
From the facts of the case it can be seen that the crime in this particular case attracts section 300
(3) of IPC.

¶15. In the The Landmark Judgment Virsa Singh vs. State of Punjab 3 the court gave a four-
point test which prosecution (in the present case “the state”) must observe and prove in order
tobring the case under this section:
i) Firstly, it must establish, quite objectively, that a bodily injury is present;
ii) Secondly, the nature of the injury must be proved; These are purely objective investigations.
iii) Thirdly, it must be proved that there was an intention to inflict that particular bodily injury,
that is to say, that it was not accidental or unintentional, or that some other kind of injury was
1
Indian Penal Code, 1860, 45 Legislative Council, § 300 (Oct 6.).
2
Subedar Tewari v. State of U.P. & Ors., AIR 1989 SC 733.
3
Virsa Singh vs. State of Punjab,  AIR 1958 SC 465.

9
intended. Once these three elements are proved to be present, the enquiry proceeds further and,
iv) Fourthly, it must be proved that the injury of the type just described made up of the three
elements set out above is sufficient to cause death in the ordinary course of nature. This part of
the enquiry is purely objective and inferential and has nothing to do with the intention of the
offender.

¶16. Also in the case of  Rajwant Singh v. State of Kerala4 The court held that the case is
covered by third clause of s. 300. All the acts were deliberate acts which were pre-planned and
they thus satisfied the subjective test involved in the clause. Also the act considered objectively
were sufficient to cause death in ordinary course of nature. The ordinary course of nature was not
interrupted with any intervening act of another and whatever happened was the result of the acts
of assailants and nothing else. It was hardly necessary to prove more than the acts themselves
and the causal connection between the acts and the end result. The sufficiency of the injury was
objectively established by the nature and quality of the acts taken with the consequence which
was intimately related to the acts.5

¶17. From the facts of the present case and the judgment in Virsa Singh's case, the situation
became very clear. Determining the intention becomes important in determining, whether the act
is murder or not. Here intention is quite clear from the facts of the case. But it is not a rule that,
where it is caused by a single blow there cannot be any intention to cause murder and would fall
under culpable homicide. Courts while determining the required intention give due caution to the
circumstances in which the incident occurred. Here it can be seen that injuries were inflicted on
the head and vital parts using an iron rod which resulted in the death of Lucifer Morning. This
shows that the objectivity of the act was sufficient enough to cause the death in ordinary course
of nature.

[1.2]. There was no sudden and grave provocation

¶18. It is humbly submitted before this Ld’ Court that the accused cannot take the defence
underexception 1 of section 300 IPC. As according to facts and circumstances there was no grave
and sudden provocation.

4
Rajwant Singh v. State of Kerala, AIR 1966 SC 1874.
5
Central Bureau of Investigation v. Mulangi Krishnaswamy Ashok Kumar & Ors., 1999 (2) Bom CR 771; 1998
(3)Bom LR 228.

10
Exception 1 of section 3006 -Sudden and grave provocation

¶19. When the person losing his self-control by the sudden and grave provocation, causes the
death of the person who gave the provocation or any other person due to a mistake or an accident
then he will be liable for the culpable not amounting to murder. The essential conditions are as:

 The accused had been provoked by the deceased.

 Provocation needs to be sudden.
 Provocation needs to be grave.
 The accused had lost his self-control or controlling power.
 The accused must have caused the death of the person who gave the provocation.
 The accused must have caused the death during the continuance of his deprivation of
the power of self-control.
 The accused should not have malafide intention.

¶20. In the case of K.M Nanavati vs the State of Maharashtra7. The court observed that-

 Gestures and words under certain situations cause sudden and grave provocation to an
accused so as to bring his action under this exception.
 For the purpose of determining the sudden and grave provocation, a test is established
to find whether any other reasonable man having the same capacity and belonging to
the same class or sections of society if placed in the same situations as accused would
also be provoked as to lose his/her self control.
 The background of the previous act of victim is to be taken into consideration in
determining whether the subsequent act was sufficient to cause a sudden and grave
provocation.
 The fatal blow on the person giving a sudden and grave provocation should be
immediately when he was provoked but not after the time which was sufficient for
him to calm down or to cool down.

6
Indian Penal Code, 1860, 45 Legislative Council, § 300 (Oct 6.).
7
K.M Nanavati vs the State of Maharashtra, 1962 SCR Supl. (1) 567.

11
¶21. Also in the case of Mahmood vs State 8 the court observed that there are certain ingredients
required to fulfil in order to come under the ambit of this section. They are as follows.

 The provocation must be sudden- The term sudden constitutes two elements- the
provocation needs to be unexpected.it means that it should not be planned beforehand.
The time gap between provocation and homicide should be short.
 The provocation must be grave- A mere statement given by the accused that he was
provoked will not be accepted in the Court. The court needs to apply the objective test
for determining whether there was a grave provocation or not.whether the reasonable
man would do the same act if he would be placed in the same situation as the
offender.
 Losing a self- control- If the court is satisfied that the provocation was sudden and
grave then the court will assume that he had lost his self-control.

¶22. From exception and the cases cited above it can be seen that none of the ingredients
of Exception 1 under section 300 IPC can be related to the facts and circumstance of the
present case. As the act done by the accused was at a time gap of 5 hours so same can’t be
considered to be a provocation, because for provocation time gap should be very less.

¶23. Hence it is humbly submitted before this Hon’ble Court that accused should be convicted
under section 302 of IPC as there was no sudden provocation and the injured inflicted was so
grave that it was sufficient in the ordinary course of nature to cause death.

[2]. That marital rape should not be criminalized

[2.1]. That marital rape is not defined in any statue/ laws.

¶24. 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.

8
Mahmood v. State , AIR 1961 All 538.

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¶25. That the Law Commission in its 172 ND Report titled Review9 of Rape Laws and the
Department Related Parliamentary Standing Committee on Home Affairs in its 167th Report 10
have examined the matter and did not recommend the criminalization of marital rape. Even
though the Justice J S Verma Committee 11 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.

¶26. 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

[2.2]. That it has to been ensured adequately that marital rape does not become a
phenomenon which may destabilize the institution of marriage.
¶27. The Supreme Court and various High Courts have already observed the rising misuse of
section 498A of IPC. The 172nd Law Commission 12 rejected this argument and said that there is
a fear that criminalization of marital rape would lead to excessive interference with the
institution of marriage.

¶28. Wherefore, rape in India is a civil offense by virtue of the Protection of Women from
Domestic Violence Act, 2005; in Bodhisattwa Gautam v. Subhra Chakraborty, the Supreme
Court said that rape is a crime against basic human rights and a violation of the victim’s right to
life enshrined in Article 2113 of the Constitution. Yet the judiciary negates this very
pronouncement by not outright recognizing marital rape in manifold judgments. In one of the
instances, former Chief Justice of India, Dipak Misra said to Deccan Herald that marital rape
should not be made a crime in India, “because it will create absolute anarchy in families and our
country is sustaining itself because of the family platform which upholds family values.”14
9
172ND Report, Law Commission of India.
10
167th Report, Law Commission of India.
11
Justice JS Verma committee, 2013.
12
172nd Report, Law Commission of India.
13
INDIA CONST. art. 21.
14
Bodhisattwa Gautam v. Subhra Chakraborty, 1996 SCC (1) 490.

13
¶29. According to 42nd Law Commission Report 15, the Indian criminal jurisprudence assumes
that living together raises a presumption that the wife has consented to sexual intercourse by the
husband, however after separation, the institution of marriage subsists wherefore penalization of
rape is valid. According to this rationale, there is a higher threshold on whether the couple is
living together or not to adjudge the committal of rape. To this, there was a suitable argument
placed that when other instances of violence by a husband towards his wife is criminalized then
there is justification for rape in marriage to be alone shielded from the operation of criminal law.

¶30. 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 his 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.

That as regards Section 376B of IPC 16 it is stated that these Sections flow from the exception
Section 37517 as presently sexual acts by a man with his own wife is not seen as an offence.

[2.3]. That the fact that other countries, mostly western, have criminalized marital rape
does not necessarily mean India should also follow them blindly.
¶31. 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.

¶32. The concept of Marital Rape is as old as marriage laws of India.  In India marital rape is not
defined in the Indian penal code and thus not criminalized and it’s largely not viewed as rape in
India due to the sacred nature of marriage in Indian culture. In India, classical Hindu law unlike
Islamic laws reflects the earlier mindset. The law of marriage in India unlike Islamic countries is
a rule where married women tend to believe that the life after marriage is their fate and their

15
42nd Report, Law Commission of India.
16
Indian Penal Code, 1860, 45 Legislative Council, § 376 (Oct 6.).
17
Indian Penal Code, 1860, 45 Legislative Council, § 375 (Oct 6.).

14
husbands becomes their ‘bhagyavidhata.’ Similar is the case in Islamic law, even in Islamic law
one of the major reason of divorce is disobedience on the part of wife18.

¶33. The concept of marital rape is not a new development. It came into limelight when the
cosmopolitan group of women raged their voice against the inequality towards the married
women’s right on their body and manifest their grievance towards it. This issue came to wide
international attention from the second half of the 20th century but still in many countries
including India marital rape either remains outside the criminal law, or is illegal but widely
tolerated. Along with India there are 36 other states like Pakistan, Bangladesh, Afghanistan,
Colombia, Myanmar, Syria, Yemen, Tajikistan etc. where marital rape19 hasn’t been criminalized
yet and the reason behind the it is not only the orthodox or conservative mentality but there are
also other social factors responsible .

¶34. The concept must have evolved from the theory of “Might is always right” were the
superior males always have considered females feeble and hopeless creature in a society the legal
subordination of wives is always considered to be a misbalance. The origin of the concept of a
marital exemption from rape laws could be a rule that a husband cannot be accused and charged
for rape of his wife.20 This idea that by marriage a woman gives irrevocable consent to her
husband to have sex with her any time whenever he demands it or it is considered to be less
harmful than rape by strangers is a view which was described by Sir Matthew Hale (1609-1676)
in History of the Pleas of the Crown, published posthumously in 173621, where he wrote that
“The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their
mutual consent and contract the wife hath given up herself in this kind unto her husband, which
she cannot retract22.”

¶35. The origins of the exception can be traced down to the Victorian era during which Sir
Matthew Hale, in a 17th century judgment, had stated that the “husband cannot be alleged guilt-
ridden of rape committed by himself upon his lawful wedded wife, for by their shared nuptial
18
MAMTA THAPA, MARITAL RAPE: A CRIME UNDEFINED, IILSINDIA BLOGS, (APR.2,2020).
19
Id
20
Nimeshbhai Bharatbhai Desai v. Sate of Gujarat, 2018 SCC On Line Guj 732.
21
Lisa M. Cuklanz, Rape on Trial: How the Mass Media Construct Legal Reform and Social Change, University of
Pennsylvania Press. (1996).
22
Joann M. Ross, Making Marital Rape Visible: A History ofAmerican Legal and Social MovementsCriminalizing
Rape in Marriage, 7 ISIL J. (2001).

15
consent and contract, the wife gives herself to the husband which she cannot withdraw.” The
United Kingdom has since progressed and made it a crime after a judgment of 1991 and
subsequently by an Act of 1994, but India is still struggling with the colonial hangover while
trying to find shelter in the argument of the institution of family for the continuing existence of
such a heinous crime

PRAYER

16
Wherefore, in the light of the facts stated, issues raised, arguments presented and authorities
cited, the respondent(s) most humbly and respectfully prays and requests to the Hon’ble Court to
declare and hold:

1. That the Hon’ble High Court has not erred in convicting the accused persons and the
sentence shall be upheld.
2. That marital rape should not be criminalized as it is not contrary to constitutional
values.

AND/ OR

3. Pass any other order, as it deems fit, in the interest of equality, justice and good
conscience.

All of which is most humbly and respectfully submitted and for this act of kindness the
counsel for the Respondents shall duty bound forever pray.

Place- Capital of Republic of Hind.

Date: 04.04.2021

Sd/-Counsels for the Respondents

17