TC-008

12TH KIIT INTRA MOOT COURT COMPETITION, 2020

IN THE HON’BLE SUPREME COURT OF INDIA

IN THE MATTER OF:

CIVIL APPEAL NO.__________/ 2020

ARISING OUT OF WRIT PETITION NO._________/ 2020

KALKA DEVI

(APPELLANT)

V.

UNION OF INDIA

(RESPONDENT)

UPON SUBMISSION TO THE HON’BLE

AND HIS COMPANION JUSTICES TO THE HON’BLE SUPREME COURT OF INDIA

----- MEMORIAL FOR THE APPELLANT -----

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS ………………………………………………………………………………….4-5

INDEX OF AUTHORITIES ……….…………………………………………………………………………..6-8

STATEMENT OF JURISDICTION ……………………………………………………………………………..9

STATEMENT OF FACTS …………..……………………………………………………………….…………10

STATEMENT OF ISSUES ………………..…………………………………………………………..………..11

STATEMENT OF ARGUMENTS ………………………………………………………………………….12-14

ARGUMENTS ADVANCED ……………………………………………………………………………….15-24

[1] That the writ petition is maintainable in the present case….……………………...…………………15-16

(1.1) Locus Standi in the present case………………………………………………………………15

(1.2) Basic Structure of the Constitution has been violated…………………………………….15- 16

[2] That Section 9, 13(1-A) (II) of the Hindu Marriage Act, 1955 & Order XXI Rule 32 & 33 of the Code
of Civil Procedure, 1908 is ex facie arbitrary and violates the fundamental rights u/a 14,19(I)(d) & 21 of
the Constitution……………………………………………………………………………..………………16-18

(2.1) Sec 9 & 13 (1-A) causes a disproportionate burden on women…………………………..16-17

(2.2) Order XXI Rule 32 & 33 of CPC are antagonistic to the Constitution……………………17-18

[3] That a decree of restitution of conjugal rights causes violation of the right of privacy, right and
mental health and right of dignity of a woman u/a 21 of the Constitution….....……………………..…18-19

(3.1) the remedy is a patriarchal element ………………………….……………..…………………18

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(3.2) Breach of Right of privacy, Physical & Mental health and dignity of a woman……………...19

[4] That an act of a state cannot compel or induce a woman to surrender her fundamental right of sexual
or decisional autonomy which is intrinsic in the right to privacy and personal autonomy u/a 21 of the
Constitution of India ……………………………………………………………………………………….19-21

(4.1) Decree for restitution of conjugal rights offends the fundamental rights…..……..…….19- 20

(4.2) Surrendering of Sexual & Decisional Autonomy ………………...…………….…….. 20 – 21

[5] That a decree for restitution of conjugal rights forbids a woman to exercise her right to have sexual
intercourse with his/her partner/spouse thus violating her right to bodily integrity and Spatial behavioral
privacy ………………………………………………………………………………………………………21-23

(5.1) Violation of Bodily Integrity & Spatial Behavioral Privacy u/a 21 of the Constitution…21-22

(5.2) Emphasis on Sexual Relationship …………………...……………………………….…..22-23

[6] That exception 2 of Section 375 of IPC legalizes marital rape & violates the fundamental rights of a
married woman u/a 14, 19 & 21 of the Indian Constitution ……………………………………………..23-24

(6.1) Violation of Article 14&19 ………………………………………………………………….23

(6.2) Violation of Article 21 ………………………………………………...………………….…24

PRAYER FOR RELIEF………………………………………………………………..……….……………….25

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LIST OF ABBREVIATIONS

ABBREVIATIONS EXPANSIONS
& AND
§ SECTION
¶ PARAGRAPH
AIR ALL INDIA REPORTER
ALL ALLAHABAD HIGH COURT
ANR. ANOTHER
ART. ARTICLE / ARTICLES
BOM BOMBAY HIGH COURT

Const. CONSTITUTION OF INDIA, 1949

CPC CODE OF CIVIL PROCEDURE, 1908
Cr.P.C CODE OF CRIMINAL PROCEDURE, 1973
Cri.L.J CRIMINAL LAW JOURNAL

DEL DELHI HIGH COURT

DIST. DISTRICT

DPA THE DOWRY PROHIBITION ACT, 1961

Dtd. DATED
Ed. EDITION
Eds. EDITORS
H.C HIGH COURT
HMA HINDU MARRIAGE ACT, 1955
Hon’ble HONORABLE
IPC INDIAN PENAL CODE,1860
Ld. LEARNED

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NLR NEW LAW REPORTS

ORS. OTHERS
REP. REPORTS.
SC SUPREME COURT
SCC SUPREME COURT CASES
SCR SUPREME COURT RECORDS
U/A UNDER ARTICLE
U/S UNDER SECTION
UOI UNION OF INDIA
v. VERSUS
Viz. NAMELY
w.r.t WITH RESPECT TO

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INDEX OF AUTHORITIES

S.No. CASES CITATION ¶ PAGE

1. A. Diravidamani v. Chitradevi & Ors. (2003) 2 SCC 412 ¶ 13 18
2. Bishnu Dayal v. State of Bihar AIR 1981 SC 39 ¶ 31 24
3. Dadaji Bhikaji v. Rukambai (1886) I.L.R 10 Born ¶ 16 19
4. G. Anandam v. The Warangal Municipal 1997 (1) ALT 434 ¶ 12 17
5. Gobind v. State of Madhya Pradesh (1975) 2 SCC 148 ¶ 20 20
6. Gatha Ram Mistree v. Mohit Kochia 14 Beng. L.R. 29 ¶ 11 16
Atteah
7. Harvinder Kaur v. Harminder Singh AIR 1994 Delhi 66 ¶ 23 22
Chaudhary
8. Indian Legal & Economic Forum v. UOI (1997) 10 SCC 728 ¶8 15
9. Indira Sarma v. V.KV. Sarma AIR (2014) SC 309 ¶ 16 19
10. Independent thought v. UOI (2019) 3 SCC 39 ¶ 26 23
11. Joseph Shine v. UOI 2018 SCC SC 1676 ¶ 19 20
12. Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225 ¶9 15
13. Kharak Singh v. State of UP 1963 AIR 1295 ¶ 21 21
14. KS. Puttaswamy & Ors. v. UOI & Anr. (2017) 10 SCC 1 ¶ 21 21
15. L.R Colho v. State of Tamil Nadu (1998) 7 SCC 550 ¶9 15
16. Maneka Gandhi v. UOI 1978 AIR 697 ¶9 15
17. Ms. Jorden Diengdesh v. S.S. Chopra AIR 1985 SC 935 ¶ 11 17
18. Madhu Kishwar v. State of Bihar AIR 1996 SC 1864 ¶ 17 19
19. Naveen Kohli v. Neelu Kohli AIR 2006 SC 1675 ¶ 11 17
20. Navtej Singh Johar & Ors. v. UOI (2018) 10 SCC 1 ¶ 21 21
21. Rabindra Nath Bose & Ors. v. UOI AIR 1970 SC 470 ¶8 15
22. R. v. Diary Produce Quota Tribunal (1990) 2 WLR 302 ¶8 15

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23. R. Rajagopal v. State of Tamil Nadu (1994) 6 SCC 632 ¶ 20 20

24. S.A Kini v. UOI AIR 1985 SC 893 ¶8 15
25. Satish Chandra v. UOI AIR 1953 SC 250 ¶8 15
26. S.R Bommai v. UOI (1994) 3 SCC 2 ¶9 16
27. Smt. Maya Devi v. Kailash Chander AIR 2002 SC 591 ¶ 13 17
28. Sushila Bai v. Prem Narayan AIR 1986 MP 225 ¶ 15 18
29. Saroj Rani v. Sudarshan Kumar Chadha AIR 1984 SC 1562 ¶ 21 21
30. Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511 ¶ 23 22
31. Shashi Bala v. Rajiv Arora (2012) 188 DLT 1 ¶ 25 22
32. Suchita Srivastava v. Chandigarh (2009) 9 SCC 1 ¶ 26 23
Administration
33. Smt. Deeksha v. State of UP & Ors. AIR 1957 SC 532 ¶ 29 24
34. The State of Karnataka v. Krishnappa (2000) 4 SCC 75 ¶ 11 16
35. T. Sareetha v. Venkatasubbaiah AIR 1963 AP 356 ¶ 17 19
36. Thota Sesharathamma v. Thota (1991) 4 SCC 312 ¶ 17 19
Manikyamam
37. Tikait Munmohinti v. Basant Kumar ILR 28 CAL 758 ¶ 20 20
38. V. Revathi v. UOI & Ors. 1988 AIR 835 ¶ 15 18
39. Waman Rao v. UOI (1981) 2 SCC 362 ¶9 15
40. Y. Lakshmaiah v. Esso Eastern Inc. & AIR 1974 AP 32 ¶ 13 17
Ors.

LIST OF STATUTES

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1. THE INDIAN PENAL CODE, ACT NO. 45 OF 1860, INDIA CODE (1860).

2. CODE OF CIVIL PROCEDURE, ACT NO. 5OF 1908, INDIA CODE (1908).

3. THE DOWRY PROHIBITION ACT, ACT NO. 28 OF 1961, INDIA CODE (1961).

4. THE HINDU MARRIAGE ACT, ACT NO. 25 OF 1955, INDIA CODE (1955).

BOOKS REFERRED

1 RATANLAL AND DHIRAJLAL, THE INDIAN PENAL CODE (34TH ED. 2018)
.
2 R. A. NELSON, INDIAN PENAL CODE 2199 (11TH ED. 2016)
.
3 JUSTICE KHASTGIR, CRIMINAL MAJOR ACTS (10TH ED. 2016)
.
4 LEXIS NEXIS, MULLA’S HINDU LAW, HINDU MARRIAGE ACT (23RD ED.
. 2018)
5 M.P.JAIN, INDIAN CONSTITUTIONAL LAW (8TH ED. 2019)
.
6 DR. S.R.MAYNENI, CODE OF CIVIL PROCEDURE & LIMITATION ACT (4TH
. ED.)

WEB RESOURCES

1. www.jstor.org (JSTOR)

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2. www.judis.nic.in (SUPREME COURT OF INDIA OFFICIAL)

3. www.manupatrafast.com (MANUPATRA)
4. www.scconline.com (SCC ONLINE)

STATEMENT OF JURISDICTION

The Petitioner humbly submits to the writ jurisdiction of this Hon’ble Supreme Court u/a 32 of the
Indian Constitution, 1949. This Hon’ble Court has the jurisdiction to entertain Writs u/a 32 for
violation of fundamental rights in Part III of the Constitution.

Article 32:

’32. Remedies for enforcement of rights conferred by this Part –

(1) The right to move the Supreme Court by appropriate proceeding 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 & certiorari, which may be
appropriate, for the enforcement of any 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 FACTS

(1.) 10th January, 2017- Kalka Devi got married to Suresh Prasad as per Hindu rites & rituals under
the Hindu Marriage Act, 1955. Both physical and mentor torture was done to Kalka Devi by her
Husband and by Suresh’s family members. Due to all these acts, Kalka Devi was forced to leave her
matrimonial home within the span of a year of her marriage.

(2.) U/S. 125 of the Code of Criminal Procedure, 1973 a petition was filed by Kalka Devi to seek
maintenance before the Family Court, New Delhi. U/S. 498A of the Indian Penal Code, 1860 and
Section 3 & 4 of the Dowry Prohibition Act, 1961; a complaint case was also filed against Suresh
Prasad and his family Members.

(3.) 20th July, 2019- The Family Court of New Delhi issued summon to Kalka Devi seeking her
presence in the proceedings before the court as Suresh Prasad has filed a petition seeking restitution
of conjugal rights u/s. 9 of the Hindu Marriage Act, 1955 before the Family Court, New Delhi.

(4.) During the pendency of such suit regarding restitution of conjugal rights, Kalka Devi filed a
Writ Petition against the Union of India u/a 32 of the Constitution of India, 1949 before the
Hon’ble Supreme Court of India inter alia challenging the constitutional of certain provisions:

A. Sec 9 & Sec 13 (1-A) (ii) of the Hindu Marriage Act, 1955;

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B. Order XXI Rule 32 & Order XXI Rule 33 of the Code of Civil Procedure, 1908 (to the
extent applicable to a decree of restitution of conjugal rights); and
C. Explanation 2 of Sec 375 of Indian Penal Code, 1860 on the ground that it infringes the
fundamental rights u/a 14, 19 (1) (a), 19 (1) (d) & 21 of the Constitution of India.

STATEMENT OF ISSUES

--ISSUE I—

Whether the writ petition filed u/a 32 of the Constitution of India by Kalka Devi against
Union of India is maintainable in the present case?

--ISSUE II--

Whether Section 9, 13 (1-A) (ii) of the Hindu Marriage Act, 1955 and Order XXI Rule 32 and
33 of the Code of Civil Procedure, 1908 is ex facie arbitrary and violates the fundamental
rights u/a 14, 19(1) (d) and 21 of the Constitution of India?

--ISSUE III--

Whether a decree of restitution of conjugal rights violates the right of privacy, right of
mental & physical health & right of dignity of a woman u/a 21 of the Constitution of
India?

--ISSUE IV—

Whether an act of the State can compel or induce a woman to surrender her fundamental
rights of sexual and decisional autonomy which is intrinsic in the right to privacy and
personal liberty u/a 21 of the Constitution of India?

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--ISSUE V—

Whether a decree for restitution of conjugal rights forbids a person to exercise her right to
decide whether to have sexual intercourse with his/her partner/spouse thus violating her
right to bodily integrity & spatial behavioral privacy?

--ISSUE VI—

Whether exception 2 of Section 375 of the Indian Penal Code legalizes marital rape and
violates the fundamental rights of married women u/a 14, 19 and 21 of the Constitution of
India?

STATEMENT OF ARGUMENTS

(1.)THAT THE WRIT PETITION IS MAINTAINABLE IN THE PRESENT CASE-

(¶1) In the present case, there have been gross violations of the fundamental rights viz.
Articles 14, 19 and 21 of the Constitution of India. The impugned rule is arbitrary and against
the principle of natural justice. Henceforth, the Hon’ble Supreme Court of India has the power
to entertain proceedings for the enforcement of the fundamental rights.

(2.)THAT SECTION 9, 13 (1-A) (II) OF THE HINDU MARRIAGE ACT, 1955 AND ORDER XXI
RULE 32 AND 33 OF THE CODE OF CIVIL PROCEDURE, 1908 IS EX FACIE ARBITRARY
AND VIOLATES THE FUNDAMENTAL RIGHTS U/A 14, 19 (I) (D) AND 21 OF THE
CONSTITUTION OF INDIA.

(¶ 2) It is humbly contended before the Hon’ble Supreme Court that Sections 9 and 13 (1-A)
(ii) of the Hindu Marriage Act, 1955 & Order XXI Rule 32 and 33 of the Code of Criminal
Procedure, 1908 is arbitrary in nature and also leads to the violation of the Fundamental
Rights u/a 14, 19(I) (d) and 21 of the Constitution of India. The legal framework that governs
section 9 and 13 of the HMA, 1955 is violation of right to privacy, personal autonomy and
dignity of Kalka Devi guaranteed u/a 21. It also places a misappropriate burden on her which
lead to inequality and causes violation of article 14 of the constitution. Under the existing laws

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of the Hindu Marriage Act, 1955 and Code of Civil Procedure, 1908 Suresh Prasad seeking
restitution of conjugal right can get a decree directing Kalka Devi to cohabit and take part in
various actions including sexual intercourse. Suresh Prasad can seek coercive measures in the
form of attachment of property when Kalka Devi disobeyed the decree of restitution. So, the
legislative provisions providing for restitution of conjugal rights is unconstitutional.

(3.)THAT THE DECREE OF RESTITUTION OF CONJUGAL RIGHTS VIOLATES THE RIGHT TO

PRIVACY, RIGHT OF MENTAL AND PHYSICAL HEALTH AND RIGHT OF DIGNITY OF A

WOMAN U/A 21 OF THE CONSTITUTION OF INDIA.

(¶ 3) It is humbly submitted before the Hon’ble Supreme Court that the decree of restitution of
conjugal rights violates the right to privacy, right to mental and physical health & right of
dignity of a woman u/a 21 of the Constitution of India. The fundamental rights are the most
cherished and every individual is entitled to exercise them. Any existing law including the
personal law clashes with the fundamental rights then it must be amended. Section 9 of HMA
denies women her free choice whether, when and how her body is to become procreation for
another human being. The woman loses her control over the intimate decisions.

(4.)THAT AN ACT OF THE STATE CANNOT COMPEL OR INDUCE A WOMAN TO SURRENDER

HER FUNDAMENTAL RIGHT OF SEXUAL AND DECISIONAL AUTONOMY WHICH IS

INTRINSIC IN THE RIGHT TO PRIVACY AND PERSONAL LIBERTY U/A 21 OF THE

CONSTITUTION OF INDIA.

(¶ 4) The Petitioners humbly submits before this Hon’ble Supreme Court that an act state
cannot compel or induce a women to surrender her fundamental right of sexual & decisional
autonomy that is intrinsic in the right to privacy and personal liberty u/a 21 of the Indian
Constitution. Compelling a woman to surrender her any right is the violation of the
fundamental rights and is a degradation of the basic structure of the constitution. Article 21
protects the woman from going beyond her autonomy.

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(5.)THAT A DECREE FOR RESTITUTION OF CONJUGAL RIGHTS FORBIDS A PERSON TO

EXERCISE HER RIGHT TO DECIDE WHETHER TO HAVE SEXUAL INTERCOURSE WITH

HIS/HER PARTNER/SPOUSE THUS VIOLATING HER RIGHT TO BODILY INTEGRITY AND

SPATIAL BEHAVIORAL PRIVACY.

(¶ 5) it is humbly submitted by the Petitioners to this Hon’ble Supreme Court that a decree for
restitution of conjugal rights forbids a person to exercise her right to decide whether to have
sexual intercourse with hi/her partner/spouse thus making it violative against her right to
bodily integrity and spatial behavioral privacy. The decree of Restitution of conjugal rights
forces a person to live together even if the relation is not perfectly defined and implies
enforcing marital intercourse. This directly or indirectly snatches out the right to decide
whether to have sexual intercourse even when the strings of relationships are minutely loosen,
thus violating the right to bodily integrity and spatial behavioral privacy.

(6.)THAT EXCEPTION 2 OF SECTION 375 OF IPC LEGALIZES MARITAL RAPE AND VIOLATES
THE FUNDAMENTAL RIGHTS OF MARRIED WOMAN U/A 14, 19 & 21 OF THE INDIAN
CONSTITUTION.

(¶ 6) It is humbly contended before the Hon’ble Supreme Court that the exception 2 of Sec
375 of IPC marks the legalization of marital rape and causes violation of Fundamental Rights
of married women u/a 14, 19 & 21 of the Indian Constitution. A child remains a child no
matter if she is a married or an unmarried child or a divorced child or whether a separated or a
widowed child, this particular exception in the section of Indian Penal Code creates an
unnecessary & artificial distinction between a married girl child and an unmarried girl child.
This exception snatches the right of a girl child to bodily integrity and reproductive choice.

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ARGUMENTS ADVANCE

[1.]THAT THE WRIT PETITION IS MAINTAINABLE IN THE PRESENT CASE-

(¶ 7) The petition filed by the petitioner u/a 32 of the Indian Constitution Act, 1950 before the
Hon’ble Supreme Court is maintainable so as to cure the gross miscarriage of justice and
protect the principles of natural justice.

[1.1] The Locus Standi in the present case-

(¶ 8) The maintainability of the writ petition for enforcement of fundamental rights can be
questioned only on the ground of laches,1 delays & acquiescence,2 drafting of petition in an
undignified manner,3 malicious in nature,4 question of law or fact are raised, 5 enforcement of
private or contractual rights are sought to be enforced.6 In this particular present case none of
the aforementioned exception exists. The petition has been filed in time, question of facts are
involved and fundamental rights are sought to be enforced. Therefore, the Hon’ble Supreme
Court is competent to decide the constitutionality of the provisions u/a 32 of the Indian
Constitution.

1
Rabindra Nath Bose and others v. Union of India and others, AIR 1970 SC 470.
2
R. v. Diary Produce Quota Tribunal (1990) 2 AII ER 434: (1990) 2 WLR 1302.
3
M.K Mallick, Law and Practice, 47(12th ed., 2012).
4
S.A Kini v. Union of India, AIR 1985 SC 893 : (1985) 3 SCR 754.
5
Indian Legal and Economic Forum v. Union of India (1997) 10 SCC 728.
6
Satish Chandra v. Union of India, AIR 1953 SC 250.

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[1.2] Basic Structure of the Constitution has been violated-

(¶ 9) It is submitted that Part III of the Indian Constitution which highlights the fundamental
rights is regarded as the basic structure of the constitution. 7 The fundamental rights of the
petitioner Kalka Devi viz. Article 14, 19 and 21 of the constitution have been violated. The
doctrine of basic structure8 not only applies against fundamental rights but also against
amendments under the exercise of the constituent power, 9
of legislative10 and executive
power.11 Henceforth, the said violation has been caused to the fundamental rights and further
more on the basic structure of the constitution.

[2.] THAT SECTION 9, 13 (1-A) (II) OF THE HINDU MARRIAGE ACT, 1955 AND ORDER XXI
RULE 32 AND 33 OF THE CODE OF CIVIL PROCEDURE, 1908 IS EX FACIE ARBITRARY AND
VIOLATES THE FUNDAMENTAL RIGHTS U/A 14, 19 (I) (D) AND 21 OF THE CONSTITUTION OF
INDIA.

(¶ 10) It is humbly submitted before the Hon’ble Supreme Court that the sections governing
the restitution of conjugal rights and the Order XXI Rule 32 & 33 of CPC are ex facie
arbitrary and such causes infringement of the fundamental rights of an individual u/a 14, 19(1)
(d) & 21 of the Indian Constitution.

[2.1]Sec 9 & 13 (1-A) causes a disproportionate burden on women-

(¶ 11) The restitution of conjugal rights12 followed by the cooling time for divorce13 places an
unequal and disproportionate burden on a woman causing the violation of her fundamental
rights. It has been an ancient assumption that a woman contracts away her sexual agency
when entering a marriage. It’s a rumor that has been accepted as a fact by almost every
individual that a women by marriage consents in advance to all the sexual relations as well as
her privacy which is therefore offensive to liberty and dignity. Such notion has no place in the
7
L.R Colho v. State of Tamil Nadu, (1998) 7 SCC 550.
8
Maneka Gandhi v. UOI, 1978 AIR 597.
9
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; Smt. Indira Nehru Gandhi v. Raj Narain, 1975 Supp. SCC 1.
10
Waman Rao v. Union of India, (1981) 2 SCC 362.
11
S.R Bommai v. Union of India, (1994) 3 SCC 2.
12
Section 9 of HMA, 1955.
13
Sec 13 (1-A) of HMA, 1955.

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constitution. Sexual autonomy constitutes an inviolable core of dignity of every individual. 14

At the heart of the constitutional rights guaranteed to every individual is a primacy of choice
and freedom to determine one’s action. The woman is deprived of her right to move freely as
she should be in the matrimonial home after the marriage. 15 Curtailing the sexual autonomy of
a woman or presuming the lack of consent one’s she enters the marriage anthetitical to
constitutional values.16 This would improperly transfer the choice of the person to have sexual
intercourse/relationship or not to the state, and at the same time transfer the choice of whether
to procreate or not also to the state. Section 9 is arbitrary, null and void that also lead to
Section 13(1-A) being null and void.17 The proposed Section 13-D of the said act has invited
a pile lot of controversies.18 It makes provisions for safeguarding just the right of a single
spouse and the right of the other spouse is left violated and hence it appears to be gender
biased.19

[2.2]Order XXI and Rule 32 & 33 of CPC is antagonistic to the Constitution-

(¶ 12) The order XXI Rule 32 of the Code of Civil Procedure, 1908 speaks of a decree
granted for restitution of conjugal rights as a decree of specific performance of restitution of
conjugal rights. Conjugal rights connote two ideas,

(a.)“ The right which husband and wife have to each other’s society” and
(b.)“Marital intercourse/relationship”.

Individual who are granted u/s 9 of the Hindu Marriage Act, enables the decree holder
through application of financial sanctions provided by the said provisions of CPC to indulge
in the sexual relationship/cohabitation with an unwilling party.20

14
Gatha Ram Mistree v. Mohit Kochia Atteah, 14 Beng. L.R. 29.
15
Article 19 (1) (D) of the Indian Constitution.
16
The State of Karnataka v. Krishnappa, (2000) 4 SCC 75.
17
Ms. Jorden Diengdesh v. S.S. Chopra, AIR 1985 SC 935.
18
Naveen Kohli v. Neelu kohli, AIR 2006 SC 1675.
19
Article 14 of the Constituion.
20
G. Anandam v. The Wrangal Municipal, 1997 (1) ALT 434.

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(¶ 13) Earlier such a decree could have been enforced against an unwilling party even by
imprisonment in a civil prison.21 Now compliance of the unwilling party to such a decree is
sought to be procured, by applying financial sanctions, by attachment and sale of the property
of the recalcitrant party.22 Perhaps, the purpose of a decree for restitution of conjugal rights in
the past as it is in the present remains the same which is to coerce through judicial process the
unwilling party to have sexual relationship against the freewill and the person’s consent with
the decree holder.23

[3.] THAT THE DECREE OF RESTITUTION OF CONJUGAL RIGHTS VIOLATES THE RIGHT TO
PRIVACY, RIGHT OF MENTAL AND PHYSICAL HEALTH AND RIGHT OF DIGNITY OF A WOMAN

U/A 21 OF THE CONSTITUTION OF INDIA.

(¶ 14) The council on behalf of the petitioners humbly submits that the law related to
restitution of conjugal rights causes infringement of right to privacy, mental & physical health
and dignity of a woman enshrined u/a 21 of the Indian Constitution.

[3.1]The remedy is a patriarchal element-

(¶ 15) The decree or the remedy of the restitution of conjugal rights is generally used by
husband to strong arm their wives into submitting themselves to the spouse. The decree
without any doubt can be called as a patriarchal element. 24 This remedy guaranteed under
Section 9 of HMA is a gross violation of right of equality and equal protection. The decree
stresses on an unwilling wife to have a sexual relationship with her husband causes violation
of her bodily integrity.25 Compelling a woman to go back to her matrimonial house without
her free will and live with the partner is a direct violation of fundamental rights and is
favorable to the husband. Bare equality of treatment regardless of the inequality of realities is
neither justice nor homage to the constitutional principle. In reality, when the remedy is dealt
in a practical way the matrimonial decree is found used almost exclusively by the husband and
is rarely resorted to by the wife. By enforcing a decree for restitution of conjugal rights the life
21
Smt. Maya Devi v. Kailash Chander, AIR 2002 SC 591.
22
Y. Lakshmaiah v. Esso Eastern Inc. & Ors. , AIR 1974 AP 32.
23
A. Diravidamani v. Chitradevi & Ors. , (2003) 2 SCC 412.
24
Sushila Bai v. Prem Narayan, AIR 1986 MP 225.
25
V. Revathi v. Union of India & Ors. 1988 AIR 835.

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pattern of the wife is likely to be altered irretrievable whereas the husband’s can remain
almost as it was before this is so because it is the wife who has move back to the matrimonial
house.

[3.2]Breach of Right of Privacy, Physical &Mental health and dignity of a woman-

(¶ 16) In a country like India, where women are considered chattel of their husbands and are
abandoned even by their own families after marriage, their only recourse to domestic violence
and abuse is separation.26 It has been increasingly recognized that the law has a duty to
intervene in order to protect the rights of the individuals, but in order to control the life of an
individual forcing them to stay in the companionship of abusive husband this causes a grief
infringement of the right of dignity of a woman.27

(¶ 17) Justice Chaudhary observed that “section 9 promotes no legitimate purpose based on
any conception of general good. It does not sub-serve any social good.” 28 The interference of
the state in the matters of marriage can cause a vast hindrance to the fundamental right of an
individual. The mental health of the woman is lost and violated when the provision guides her
to return back to the matrimonial home. The burden on her regarding the precedents in the
marriage leaves her with traumatic mental health and no choice to counter-part on the
decision.29 The privacy of the woman is lost when the state enters into the ambit of her marital
life and that is followed by guiding her to do the needful in the name of restitution of conjugal
rights. Once, she re-enters the matrimonial home without her will, the autonomy of sexual
relationship is indirectly snatched from her causes deep violation of physical and mental
health. The Indian women have suffered a lot and are still suffering violation and
discrimination in silence.30

26
Indira Sarma v. V.KV. Sarma, AIR 2014 SC 309.
27
Dadaji Bhikaji v. Rukambai, (1886) I.L.R. 10 Born.
28
T. Sareetha v. Venkatasubbaiah, AIR 1963 AP 356 .
29
Thota Sesharathamma v. Thota manikyamma, (1991) 4 SCC 312.
30
Madhu Kishwar v. State of Bihar, AIR 1996 SC 1864.

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[4.] THAT AN ACT OF THE STATE CANNOT COMPEL OR INDUCE A WOMAN TO SURRENDER
HER FUNDAMENTAL RIGHT OF SEXUAL AND DECISIONAL AUTONOMY WHICH IS INTRINSIC

IN THE RIGHT TO PRIVACY AND PERSONAL LIBERTY U/A 21 OF THE CONSTITUTION OF

INDIA.

(¶ 18) It is humbly submitted before the Hon’ble court that the coercive act of a state,
compelling sexual co-habitation or inducing to surrender the rights of sexual and decisional
autonomy infringes the fundamental right to privacy, dignity, mental and physical health,
personal liberty and right to equality of a woman under the constitution of India.

[4.1] Decree for restitution of conjugal rights offends the fundamental rights-
(¶ 19) A decree for restitution for conjugal rights u/s 9 of the Hindu Marriage Act, 1955
would imply forceful sexual relationship on an unwilling person. Moreover the autonomy to
decide whether to live with that person or to be indulging in a sexual relationship vanishes.
The provisions related to restitution of conjugal rights violated the freedom of sexual
expression under the constitution.31 Moreover compelling her by the state to go back to her
husband or her matrimonial home for restitution of conjugal rights against her wishes would
tantamount to marital rape.32

(¶ 20) In India, the institution of marriage is regarded as a sacramental union. 33 It is the basis
of the society which is governed by a sacred covenant. 34 The main aim of the institution of
marriage is to protect the society and the particular marriage from foulness and un-chastity. 35
The virtue of being available to both husbands and wives, who are inherently in unequal
positions, the act of the state is violative of right to equality by violating the rule of equal
protection of laws. Privacy u/a 21 of the Indian Constitution highlights that every individual
is at his / her liberty to choose a life partner, profession, to live or cohabit with him/her. 36
Perhaps, in the name of restitution of conjugal rights and other similar acts of the state that are

31
Ibid 16.
32
Joseph Shine v. Union of India, 2018 SCC SC 1676.
33
Tikait Munmohinti v. Basant Kumar, ILR 28 CAL. 758.
34
Ibid 13.
35
R. Rajagopal v. State of Tamil Nadu (1994) 6 SCC 632.
36
Gobind v. State of Madhya Pradesh (1975) 2 SCC 148.

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focusing on ways that could lead to surrender of different autonomy, the right to privacy is
infringed.

[4.2] Surrendering of Sexual & Decisional Autonomy-

(¶ 21) Compulsion laid down by the state is concrete that a person should follow, no matter
what autonomy the person posses over. Similarly in the case of restitution of conjugal rights
and other similar provisions of the state, the autonomy of person regarding sexual relationship
and the decision to live and cohabit is diluted. Sexual expression is so integral to one’s
personality that it is impossible to conceive of sexuality on any basis except on the ground of
consensual participation of the opposite party or sexes.37 Denial of self-expression and
decisional autonomy is no less than a death. 38 Right to sexuality, right to sexual autonomy and
right to decide is the basic feature that has been guaranteed u/a 21 of the Constitution of
India. But, the action of the state in response to restitution of the conjugal right is equal to
refusing the person to perform the decisional autonomy whether to live with the spouse if the
furtherance of the marriage is not on the well side. Whether to cohabit or live within the four
walls are on the discretion of the person as the autonomy is enshrined in the fundamental
rights of that particular person.39 The personal autonomy and dignity cannot be sacrificed at
the altar of family life even though the state compels the person to do so. Under the autonomic
principle, the individual has sovereignty over his/her body. 40 He/ she can surrender his/her
autonomy willfully to another individual and their intimacy in privacy is a matter of their
choice.41

[5.] THAT A DECREE FOR RESTITUTION OF CONJUGAL RIGHTS FORBIDS A PERSON TO

EXERCISE HER RIGHT TO DECIDE WHETHER TO HAVE SEXUAL INTERCOURSE WITH

HIS/HER PARTNER/SPOUSE THUS VIOLATING HER RIGHT TO BODILY INTEGRITY AND

SPATIAL BEHAVIORAL PRIVACY.

37
Kharak Singh v. State of U.P, 1963 AIR 1295.
38
Navtej Singh Johar & ors. v. Union of India thr. Secretary Ministry of Law and Justice (2018) 10 SCC 1.
39
Saroj Rani v. Sudarshan Kumar Chadha, AIR 1984 SC 1562.
40
KS. Puttaswamy and Anr v. Union of India and Anr, (2017) 10 SCC 1.
41
Ibid 19.

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(¶ 22) The council on behalf of the petitioner submits before the Hon’ble Supreme Court that
the provisions under the restitution of conjugal rights violates the bodily integrity and spatial
behavioral privacy restricting a person to exercise the fundamental right to decide about the
sexual relationship with the spouse or the partner.

[5.1] Violation of Bodily Integrity and Spatial Behavioral privacy u/a 21of the Constitution-

(¶ 23) The interference of the state destroyed the sexual autonomy and also the reproductive
autonomy of an individual. A wife who is keeping away from her husband, because of
permanent or temporary arrangement, cannot be forced to be indulged in sexual relationship
or to bear a child by her husband.42 The degree of restitution of conjugal rights declares an
order to coerce through the judicial proceedings for an unwilling party to have sexual
relationship/intercourse against the person’s consent and freewill that lies with the decree-
holder.43 The remedy of the restitution conjugal rights violates the very nature of a person by
dictating his/her choice.44 The remedy of restitution of conjugal right is just barbarous,
uncivilized and an engine of oppression.

(¶ 24) The dignity and integrity of a person’s body is defined by the consent that the
particular individual provides to other without any mere interference of other person or state
through the way of a provision relating to coercive action. Such provisions are considered as
the governmental intrusion into the bedroom of the marital house or the marital of the people
and their bodily integrity.45 The operation of the said provision is deeply inequitable in the
context of the unequal power structure and still raises a question of gender justice.

[5.2]Emphasis on Sexual relationship-

(¶ 25) The decree of restitution of conjugal rights implies enforcing marital intercourse or the
sexual relationship. This would imply improper transfer of the choice of a person whether to
have sexual intercourse/ relationship to the state, and also at the same time transfer the choice

42
Harvinder Kaur v. Harminder Singh Chaudhary, AIR 1984 Delhi 66.
43
Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511.
44
Ibid 12.
45
Ibid 20.

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to procreate or not to the state. The provision violates the right to sexual autonomy and bodily
integrity of the individual to whom the decree is directed. 46 Even in the case of women, it also
violates their reproductive autonomy.

(¶ 26) The provision mainly focuses on the sexual intercourse and procreation relationship.
The decree deprives the woman of her reproductive sovereignty.47 Section 9 imposes sexual
cohabitation between non-consensual, unwilling opposite sexual partners. Even though, if the
said provision doesn’t make sexual intercourse compulsory, compelling a woman to stay with
her husband in the matrimonial home puts her at a risk of marital rape, depriving her of
autonomy over her own body and thus violates her right to privacy.48

[6.] THAT EXCEPTION 2 OF SECTION 375 OF IPC LEGALIZES MARITAL RAPE AND
VIOLATES THE FUNDAMENTAL RIGHTS OF MARRIED WOMAN U/A 14, 19 & 21 OF THE
INDIAN CONSTITUTION.

(¶ 27) The petitioner hereby submits before the Hon’ble Supreme Court that the 2 nd Exception
of Section 375 IPC causes legalizing of marital rape in India that infringes the fundamental
rights of a woman.

[6.1]Violation of Article 14 & 19 of the Constitution-

(¶ 28) The said provision results in a situation rather an exception to an offence of rape in
cases of forced sexual intercourse by a man with his own wife if she is of 15 years of age or
above.49 It has now become a constant blanket liberty and freedom for the husband to have
non-consensual sexual intercourse with his wife.50

(¶ 29) Exception 2 violates the right to equality enshrined u/a 14 insofar as it discriminates
against married women by denying from equal protection from rape and sexual harassment.
Justice Lokur observed that, “A child remains a child whether she is described as a street

46
Shashi Bala v. Rajiv Arora, (2012) 188 DLT 1.
47
Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1.
48
Independent Thought v. Union of India, (2019) 3 SCC 39.
49
Exception 2 of Section 375, IPC.
50
Ibid 48.

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child or surrendered child or an abandoned child or an adopted child. Similarly, a child

remains a child whether she is a married child or an unmarried child or a divorced child or a
separated or widowed child. At this stage we are reminded of Shakespeare’s eternal view that
a rose by any other name would smell as sweet and so is also with the status of a child. The
exception creates two classes of women based on their marital status and immunizes actions
perpetrated by men against their wives.51

(¶ 30) Married women may actually find it more difficult to escape abusive condition at home
because they are legally and financially tied to their husbands. In reality, this provision
encourages the husbands to forcefully enter into the sexual relationship with their wives, as
they are with the opinion that their acts are not discouraged or penalized by law. And this so
because no rational nexus can be deciphered between the classifications created by the
exception and underlying objectives of the act, it does not satisfy the test of reasonableness
and freedom to move around when in the state of married life and thus violates Article 14 &
19 of the Indian Constitution.

[6.2]Violation of Article21 of the Constitution-

(¶ 31) It is important to recognize that reproductive choices can be exercised to procreate as

well as to abstain from procreating. 52 Marriage is in modern times regarded as a partnership of
equal & no longer one in which the wife must be subservient chattel of the husband. Article
21 gives every person right of dignity and the right of a woman to maintain her bodily
integrity that is effectively destroyed as her husband effectively has full control over her body
and can subject her to sexual intercourse /relationship without her consent or without her
willingness since such an activity in eyes of the provisions would not amount to rape.53

(¶ 24) More importantly, child marriage is void abinitio, and thus this creates disparity
between the provisions of IPC & other child protection laws such as Prohibition of Child
Marriage Act of 2006, Protection of Children from Sexual Offences and Juvenile Justice

51
Smt. Deeksha v. State of U.P and Ors , AIR 1957 SC 532.
52
Ibid 40.
53
Bishnudayal v. State of Bihar, AIR 1981 SC 39 (India).

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Act that carves out a child who is below 18 years of age. The exception in IPC has created an
unnecessary & artificial distinction between a married child and an unmarried one. The clause
took away her right to bodily integrity and reproductive choices u/a 21 of the Constitution.

PRAYER FOR RELIEF

In the light of the Issues raised, Arguments Advanced, Cases and Authorities cited above, The
Petitioners humbly request the Hon’ble Supreme Court of India, to admit the writ petition, and
in so doing, adjudge and declare that:

1. Section 9 and 13 (I-A) (ii) of the Hindu Marriage Act, 1955 is unconstitutional;
2. Order XXI Rule 32 & 33 of the Code of Civil Procedure, 1908 is unconstitutional to the
decree of restitution of conjugal rights; and
3. Explanation 2 of Section 375 of Indian Penal Code, 1860 is unconstitutional being
violative of fundamental rights u/a 14, 19 and 21 of the Indian Constitution.

AND/OR

Pass any other order, direction or relief that it may deem fit in the best interests of Justice,
Fairness, Equity and Good Conscience.
For this act of Kindness, The petitioner shall duty bound forever pray.

_______S/D_____
COUNSELS FOR THE PETITIONERS

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