The case below the honorable supreme court today involves the clubbed matter of republic of

sindhu desh , Karunadu harassed husband association, Shruthyalaya VS. the state of karunadu
The counsel seeks permission to address the bench collectively as your lordship.
Warm greetings to your lordship may I pleased this honorable court.
This is the counsel appearing on behalf of respondent under article 136 of the constitution of
sindhu desh, 1950 in which A Special Leave Petition filed under Article 136 of the Constitution
allows the aggrieved party a special permission to be heard in the Apex court, in appeal against
any judgment or order of any Court/tribunal in the territory of the country.
THE RESPONDENTS, HOWEVER, RESERVES THE RIGHT TO CHALLENGE THE
SAME.
If your lordship is well versed with the facts of the case the counsel would like to proceed further
with the issues and the arguments.
Facts of the case- The present case is about a married couple wherein wife has filed a police
complaint and an FIR under Sections 350, 351, 354, 375 r/w 376 against her husband. The
conflict is basically on marital rape where husband is accused of having forceful intercourse with
her wife against her consent. On December 10, 2021, the jurisdictional Magistrate altered the
charges and removed the reference to the commission of offences citing Exception 2 of Section
375. Laila filed a writ petition under Article 226, challenging the vires of Exception 2. On May
25,the division bench of the High Court held that Marital rape Exception is ultra-vires and
directed 375 to be made gender neutral. KHHA Shruthyalaya and the state of sindhu desh filed
Special leave petition before before the Supreme Court against the judgement of high court of
karunaddu.
Issues – Your lordship the supreme court in the instant matter has framed four isssues
WHETHER THE SPECIAL LEAVE PETITION FILED UNDER ARTICLE 136 OF THE
CONSTITUTION OF SINDHU DESH IS PROPER AND/OR VALID SINCE THE STATE IS
UNDER AN OBLIGATION TO TREAT MEN AND WOMEN EQUALLY? –
ISSUE II WHETHER EXCEPTION 2 OF SECTION 375 OF THE SINDHUDESH PENAL
CODE IS VIOLATIVE OF ARTICLE 14, 19 AND 21 OF THE CONSTITUTION? –
I will be dealing with the first and second issue and my co-counsel will be dealing with third and
subsequently the fourth issue.
My counsel and I will take 9 minutes each for oral arguments and 2 minutes will be reserved for
sur- rebuttal.
Your lordship It is humbly submitted before the Hon’ble Court that the Special leave petition
filed against the judgment of the High court of Karunadu is not maintainable
The counsel is dealing with this issue under two distinct grounds that is THE PETITIONER
DOES NOT POSSESS THE REQUISITE LOCUS STANDI to present the special leave petition
before this hon’ble court as NO SUBSTANTIAL QUESTION OF LAW IS INVOLVED IN
THE PRESENT CASE AND INTERFERENCE IS BASED ON PURE QUESTION OF FACT
WHICH IS ENTITLED TO BE DISMISSED.
The counsels, on behalf of the Respondent, contend that the Appellant must show that
exceptional and special circumstances exist. Your lordship it has been held in Council of
Scientific and Industrial Research v K. G. S. Bhatt (1989) AIR 1972 (SC) that special leave
will not be granted when there is no failure of justice or when substantial justice is done, though
the decision suffers from some legal errors.
The counsel humbly submits that The Republic of Sindhu Desh bases its argument on the
intention to protect the institution of marriage for the larger stability of the society, but your
lordship a glaring fallacy in this approach would be that the harm caused to women because of
failure in criminalizing marital rape will far outweigh the harms apparently caused to society
because of a broken marriage.
Moreover that no substantial question of law is involved as your lordship with the State creating
laws criminalizing cruelty and with the PWDVA, 2005( protection of women from domestic
violence act) it is implicit that the State has understood that the protection of the institution of
marriage cannot be an overarching goal. If Your lordships are with me the cousel would like to
refer to pg 2, para 6, citation 6 of the written submission wherein in the case of (Independent
thought vs Union of india) The court has recognized that women’s right cannot be subsumed on
the basis of marriage. Moreover, to not criminalize marital rape simply to protect the institution
of marriage when there is a constitutional right at stake and when other forms of violence have
been criminalized, would be arbitrary. Thus, this fails the test of Art.14, and the exception clause
is hence, unconstitutional. Hence, the judgment given by the high court of Karunadu does not
have any exceptional and special circumstances and the petitioner does not have any locus standi
to approach the hon’ble court.
The counsel seeks permission to begin with the issue 2 that is exception 2 of section 375 of
sindhu desh penal code is violative of article 14, 19 and 21 of the constitution

It is humbly submitted before the Hon’ble SC that the counsels on behalf of the Respondents
would address the issue at hand in a threefold manner, taking up Art. 14, 19 and 21 separately.
Firstly, EXCEPTION 2 OF SECTION 375 OF THE SINDHUDESH PENAL CODE IS
VIOLATIVE OF ARTICLE 14 because it creates an unreasonable classification and secondly,
Exception II does not have a reasonable nexus with the object sought to be achieved
18. In order to pass the test of reasonable classification under Art. 14, the classification should be
based on an intelligible differentia 15 and the differentia should have a reasonable nexus with the
object sought to be achieved by the law in question.
19.Drawing from the above argument your lordship Exception II keeps outside the ambit of
‘rape’ a nonconsensual sexual intercourse between a husband and wife during the course of their
marriage.17 It creates two classes of rape victims: former being, married women who are raped
by their husband in the course of their marriage, who cannot approach the police and cannot seek
punishment under the IPC for ravishment of her dignity and the latter being, unmarried women
who are raped by a man, not being their husband, who are entitled to protection by the criminal
law under §. 375 and §. 376.
22. Expounding on the aforementioned arguments, Exception II unreasonably creates a subclass
of rape victims based on their marital status. The nature of the act of rape remains the same 27
and a rapist continues to stand as a rapist28 irrespective of whether the heinous act29 is
committed within or outside marriage. Rape victims, irrespective of their marital status constitute
as one indivisible class and Exception II which further sub-classifies rape victims treats the
equals of one indivisible class unequally.
23. Moreover, In the case of Independent Thought vs. Union of India and Anr31, the Hon’ble SC
held that Exception 2 of Section 375 IPC is liable to be struck down on grounds that it is
discretionary and violative of Article 14, 15 and 21 of the Constitution of India and it is
conflicting with the provisions of POCSO, which must prevail as it a special law for the
protection of girl child. Your lordship In the case of Savita Samvedi v. Union of India, 33 it was
held that classification based on marital status is wholly unfair, unreasonable and liable to be
struck down under Art. 14.

B.2 EXCEPTION II TO § 375 OF THE INDIAN PENAL CODE VIOLATES ARTICLE 19 OF

THE INDIAN CONSTITUTION as a wife has the right to express her consent regarding sexual
matters in her marriage and it imposes an unreasonable restriction on women.
The counsel humbly submits that MARRIED WOMEN HAVE THE FUNDAMENTAL RIGHT
TO GIVE EXPLICIT CONSENT UNDER ARTICLE 19(1) (A)
Art. 19(1) (a) 48 guarantees every citizen the fundamental right to freedom of speech and
expression.49 The phrase ‘expression’ under Art. 19(1) (a) has a broad connotation50 and can be
used when the person is entitled to decide upon his or her preferences.
The hon’ble Supreme court in Jarnail Singh v. State of Raj., 1971 SCC OnLine Raj 76 a woman,
irrespective of her marital status has the right to decide upon her preference of entering sexual
activity with her husband. Further, the act of sexual intercourse must be contemporaneous with
consent
B.2.2.1 Exception II Impose a restriction on a women’s right to give consent to sexual
INTERCOURSE WITHIN THE marriage
The aforementioned argument can be explained in a two-fold manner. First, Exception II allows
a husband to exercise, with impunity his right of non-consensual or undesirable sexual
intercourse with his wife, even without her consent. Second, Exception II is based on the
‘implied consent theory’ which does not criminalize non-consensual sexual intercourse within
marriage and takes away the wife's right to give consent or refuse consent to sexual intercourse
protected under her freedom to speech and expression under Art. 19(1) l(a)
THE RESTRICTION IMPOSED ON THE RIGHT TO FREE CONSENT IS
UNREASONABLE
In conclusion, it is humbly submitted before the Hon’ble Court that, Exception II which imposes
a restriction on the married women's right to say ‘no’ to the act of sexual intercourse within
marriage under Art. 19(1)(a) is per se unconstitutional because the aforementioned restriction
does not fall under any of the grounds of restriction under Art.19(2).
B.3 EXCEPTION II TO § 375 OFTHE SINDHU DESH PENAL CODEVIOLATES
ARTICLE21 OF THE CONSTITUTION
Art. 21 of the Indian Constitution guarantees the fundamental right to life and liberty. 75 It is
humbly submitted before the Hon’ble Court that Exception II violates Art. 21 and deprives
married women of their right to life and personal liberty because first, Exception II violates the
right to privacy of married women, secondly, it violates the right to health and reproductive
choice of a married woman
B.3.1 EXCEPTION II VIOLATES THE RIGHT TO PRIVACY OF MARRIED WOMEN
In the case of Mohd.Iqbal v. State of Jharkhand, (2013) 14 SCC 481 the hon’ble court held that
heinous crime of rape whether it occurs within or outside marriage is an ultimate invasion and
violation of a women’s bodily integrity and her sexual autonomy.
Exception II gives legal protection to the husband to subject his wife to nonconsensual sexual
activity, without being punished under the criminal law. Thus, the husband by the virtue of the
aforementioned legal protection can subject his wife to any overtly sexual act, without her
choice, consent and free will. Hence, it can be concluded that Exception II violates married
women's fundamental right to bodily integrity and sexual autonomy which are protected under
Article 21 of the constitution.
B.3.2 EXCEPTION II VIOLATES THE RIGHT TO HEALTH AND REPRODUCTIVE
CHOICE OF A MARRIED WOMAN
If your lordship are with me I would like to draw your attention to the para no. 54 citation 89 of
the submission in which hon’ble sc in Ashwani kumar vs union of india held The right to health
is a fundamental right under Art. 21.89 It includes one's inalienable right to have freedom to
protect their sexual and reproductive health and this freedom remains vested in all persons
including women irrespective of their marital status.
The heinous crime of rape causes grave mental as well as physical injury to a woman92 and
Exception II, which does not criminalize marital rape violates the right to health of married
women, who are subjected to grave mental and physical injury by their husbands when forced
into nonconsensual intercourse. Exception II to §. 375 violates married women's right to
reproductive choice because it violates the right of married women to abstain from participating
in sexual activity and violates the right to decisional autonomy of married women.
Henceforth, it is humbly submitted before the Hon’ble Court that Exception II violates a married
woman’s right to life and liberty, her bodily autonomy, right to sexual privacy and right to health
and reproductive choices, enshrined in Art. 21 of the Constitution.