SHOOLINI UNIVERSITY NATIONAL LAW FEST,2022.

Team Code:

BEFORE THE HONOURABLE SUPREME COURT OF LIVASSA

IN THE MATTER OF:

Special Leave Petition (Criminal) No._____ of 2022

Writ Petition (Civil) No. of 2022
Writ Petition (Civil) No. of 2022

Special Leave Petition (Criminal) No._____ of 2022

ANMOL REP. THR MS. SNEHA ---------------------------------------------------PETITIONER

v.

STATE (GOVT OF NCT OF DELHI). -------------------------------------------- RESPONDENTS

With

Writ Petition (Civil) No. of 2022

MR. PURUSHOTTAM JOSHI----------------------------------------------------PETITIONER

v.

UNION OF LIVASSA------------------------------------------------------------------RESPONDENTS

With

Writ Petition (Civil) No. of 2022

THE ABANDONED AND REJECTED(NGO)-------------------------------PETITIONER

v.

UNION OF LIVASSA-------------------------------------------------------------RESPONDENTS

UPON HUMBLE SUBMISSION BEFORE THE

HON’BLE SUPREME COURT OF
LIVASSA.

MEMORANDUM ON BEHALF OF THE RESPONDENT

LIST OF ABBREVIATIONS MEMORANDUM FOR THE RESPONDENTS

TABLE OF CONTENTS

LIST OF ABBREVIATIONS .............................................................................................. .II

INDEX OF AUTHORITIES ................................................................................................ III

STATEMENT OF FACTS .................................................................................................. IV

ISSUES RAISED................................................................................................................ VII

SUMMARY OF ARGUMENTS ......................................................................................... VIII

PLEADINGS ............................................................................................................................ 9

I. WHETHER ANMOL IS LIABLE UNDER SECTION 302 IPC OR NOT?

.................................................................................................................................................................................... 9

II. WHETHER LEGAL SANCTION BE ACCORDED TO SAME SEX

MARRIAGES ................................................................................................................ 11

III. WHETHER ATTEMPT TO SUICIDE BE CONSIDERED

DECRIMINALISED AFTER THE ENFORCEMENT OF MENTAL HEALTH

CARE

ACT…………………………………………………………………………………….13

PRAYER ............................................................................................................................ XVII

I
LIST OF ABBREVIATIONS MEMORANDUM FOR THE RESPONDENTS

LIST OF ABBREVIATIONS

& And

Anr. Another

HIV Human Immunodeficiency Virus

Hon’ble Honorable

IPC Indian Penal Code

LGBTQIA Lesbian, gay, bisexual, transgender,

queer/questioning, intersex, and
asexual/aromantic/agender

MHCA Mental Healthcare Act

NCT National Capital Territory

NGO Non-Governmental Orgaization

Ors. Others

PIL Public Interest Litigation

STD Sexually Transmitted Diseases

WHO World Health Organization

v. Versus

II
INDEX OF AUTHORITIES MEMORANDUM FOR THE RESPONDENTS

INDEX OF AUTHORITIES

ARTICLES

Kidangoor, A. (2021, January 6). Is India ready to legalize LGBTQ marriage?

Time. Retrieved November 24, 2022, from https://time.com/5926324/india-lgbtq- 11
marriage-case/
Jain, G. (2019). SIGNIFICANCE OF MARRIAGE AS SOCIAL INSTITUTION
IN INDIAN ENGLISH WRITINGS. In Social Values and Society (Vol. 1, Issue 12
1, pp. 17–22). ZIbeline International Publishing.
https://doi.org/10.26480/svs.01.2019.17.22
Dangers of same-sex couples adopting children: EWTN. EWTN Global Catholic
Television Network. (n.d.). Retrieved November 24, 2022, from 12
https://www.ewtn.com/catholicism/library/dangers-of-samesex-couples-adopting-
children-2986
Mental healthcare act, 2017: Legislation with a flawless facade. The Law Blog.
(2020, July 15). Retrieved November 24, 2022, from 13
https://thelawblog.in/2020/07/15/mental-healthcare-act-2017-legislation-with-a-
flawless-facade/

CASES

State of Gujarat v. Acharya D Pandey, SCR (2) 557 (1971),

https://indiankanoon.org/doc/1485845/ 10

Mukesh & Anr v. State for NCT Of Delhi & Ors, (2017) 6 SCC 1,
https://indiankanoon.org/doc/68696327/ 10

Hurpurshad v. Sheo Dayal, ILR 7 All 590 (1885),

https://indiankanoon.org/doc/450737/ 11

C.A. Thomas Master And Etc. v. Union Of India And Ors, CriLJ 3729
(2000), https://indiankanoon.org/doc/1374554/ 14

Emperor v. Dwaraka Poonja, 14 BOMLR 146 (1912),

https://indiankanoon.org/doc/1234725/ 14

STATUTES

1. INDIAN PENAL CODE, 1860

2. JUVENILE JUSTICE ACT, 2005

3. MENTAL HEALTHCARE ACT, 2017

III
STATEMENT OF FACTS MEMORANDUM FOR THE RESPONDENTS

STATEMENT OF FACTS

1. On 11th March WHO declared Movid virus outbreak as a global pandemic and the

government of Livassa called for a nationwide lockdown for 30 days. Janak, a driver and his

wife Nirmala, a nurse, worked in a multi-specialty hospital in New Delhi. Their son Anmol

was a thirteen-year-old bright boy who lived in the care of neighbours at that time.

2. On the 5th April, Janak and Nirmala were tested positive for Movid Virus. Within a few days,

Janak succumbed to death. Nirmala also died a few days after Janak’s death. Anmol was

devastated by this. His neighbours fed him for a few more weeks until they started looking

at him as a burden.

3. Mrs. Breganza, head nurse in the same hospital posted Anmol’s story on a social media

platform, Racebook, and appealed for his adoption. Mr. Shastri, came across this post and

immediately contacted Mrs. Breganza and brought Anmol to his home.

4. Mr. Shastri and his daughter Sneha welcomed Anmol with open arms, while his wife Suman

treated him with contempt and indifference. After the death of Mr Shashtri, Suman’s

behaviour towards Anmol went from bad to worse.

5. Anmol soon joined a neighbourhood gang of similar-aged juvenile pickpockets. He began

arriving home late and sleeping on the streets. Anmol gradually became addicted to drugs.

Anmol wanted to end his life since he was completely depressed and unhappy with life. He

attempted to jump into the Yamuna River but was rescued by a police officer on duty. He

was arrested for attempt to suicide. The Magistrate found him guilty but freed him on

probation of good conduct.

6. During the trial, Anmol met Malik who was well-known criminal. Malik sympathised with

Anmol and invited him to his house Malik. With Malik’s care towards him, Anmol became

aware of his homosexuality. Malik, who was also homosexual, proposed to Anmol, and they

began living together and eventually got married.

IV
STATEMENT OF FACTS MEMORANDUM FOR THE RESPONDENTS

7. Anmol created his own business and started living a respectable life. Their relationship

remained good for the first year or so, then eventually deteriorated. Anmol was dissatisfied

with Malik's increased engagement in criminal activities. Malik, who was naturally angry

and abusive, began sexually abusing Anmol. He suffered in silence since he had nowhere to

go. He wanted to leave Malik but had no choice because his savings were with Malik.

8. On 15th September, his mother's birthday, Anmol was sad and was remembering his parents.

Malik came back agitated and anxious. He saw that Anmol was sad and tried to talk to him,

but Anmol refused. Malik gradually approached and attempted to become intimate. Anmol

resisted but Malik began to force himself on Anmol. During this, Malik pulled out his

rifle and pointed towards Anmol. A knock on the door diverted Malik's attention. Anmol and

Malik got into a fight while attempting to take the gun. In the midst of the turmoil, the trigger

was pulled, and Malik was hit in the neck by a bullet. Malik collapsed quickly.

9. Before Anmol could realise what had occurred, Constable Kalia, who was the knocking on

the door, heard a gunshot and broke open the door. He found Anmol looking at the dead

body but wasn't able to locate the gun. While going towards the car with the

constable, Anmol texted Sneha, his sister, 'Kaam Khatam!! Malik nahi raha' (Work

done, Malik is dead) Kalia grabbed Anmol's phone as he was texting. Later, it is revealed

that Anmol frequently talked to Sneha about wishing Malik was dead.

10. FIR was registered and Investigation was initiated by Inspector Rustam at Badarpur Police

station. a charge sheet filed against him. Anmol was sentenced to life imprisonment by the

Session Court, which was upheld by the High Court on appeal. Shreya resolves not to let his

brother suffer. She filed a Special Leave Petition with the Supreme Court, challenging the

High Court's conviction.

V
STATEMENT OF FACTS MEMORANDUM FOR THE RESPONDENTS
11. Anmol’s story went viral on social media. The Abandoned and rejected, an NGO working

for LGBTQIA rights filed a PIL to seek framing of special laws to protect the rights of

LGBTQIA community outside the prevailing laws covering matrimonial rights and

obligations and domestic violence/abuse before the Supreme Court of Livassa. Mr.

Purushottam Joshi, a public-spirited person filed another Public Interest Litigation seeking

clarity on the culpability of a person under section 309 of the Penal Code after the

enforcement of Section 115 of the Mental Healthcare Act.

VI
ISSUES RAISED MEMORANDUM FOR THE RESPONDENTS

ISSUES RAISED

The following issues are presented before the Hon’ble Supreme Court of Livassa:

I. WHETHER ANMOL IS LIABLE UNDER SECTION 302 IPC OR NOT?

II. WHETHER LEGAL SANCTION BE ACCORDED TO SAME SEX MARRIGIES?

III. WHETHER ATTEMPT TO SUICIDE BE CONSIDERED DECRIMINALISED

AFTER THE ENFORCEMENT OF MENTAL HEALTHCARE ACT?

VII
 SUMMARY OF ARGUMENTS

I. WHETHER ANMOL IS LIABLE UNDER SECTION 302 IPC OR NOT?

It is humbly submitted before this hon’ble court that Anmol is liable for murder of Malik under

section 302 of IPC. The argument is two- fold firstly, the The factual matrix satisfies the

essentials of mens rea and actus reas; and secondly, Anmol shall not be exempted to be held

liable on the basis of considering him a juvenile.

II. WHETHER LEGAL SANCTION BE ACCORDED TO SAME SEX MARRIGIES?

It is most respectfully submitted before this Hon’ble Court that legal sanction should not be

accorded to same-sex marriages on three grounds. Firstly, same-sex marriages are against

the customs of Indian society. Secondly, same-sex marriages have problems related to

adoption. Thirdly, same-sex marriages would lead to violation and amendment of personal

and codified laws.

III. WHETHER ATTEMPT TO SUICIDE BE CONSIDERED DECRIMINALISED

AFTER THE ENFORCEMENT OF MENTAL HEALTHCARE ACT?

For sake of convenience and brevity of this Hon’ble Court the argument is based on Section

115 of the Mental Health Care, 2017 and Section 309 of IPC. Although Section 115 of The

Mental HealthCare Act,2017 decriminalizes the same superseding Section 309 of IPC. It

primarily focusses on presumption of severe stress in case of attempt to commit suicide. A

person who attempts to commit suicide may be presumed to be under stress however, this

presumption comes with a concomitant diction of ‘unless proved otherwise’, thus making it

clear that this presumption can be disproved."

VIII
 PLEADINGS MEMORANDUM FOR THE RESPONDENTS

PLEADINGS

I. WHETHER ANMOL IS LIABLE UNDER SECTION 302 IPC OR NOT?

It is humbly submitted before this hon’ble court that Anmol is liable for the murder of Malik

under section 302 of IPC. The argument is two-fold firstly, the factual matrix satisfies the

essentials of mens rea and actus reas, and secondly, Anmol shall not be exempted to be held

liable on the basis of considering him a juvenile.

1. The factual matrix satisfies the essentials of mens rea and actus reas.

It is presented that to prove that the accused is to be held liable under section 302 of IPC,

both mens rea and actus reas need to be established in the present case.

a) Establishment of mens rea: Mens rea is a legal term that generally refers to the guilty

mental state. The familiar Latin maxim ‘actus non facit reum nisi mens sit rea’

meaning, the act does not render one guilty unless the thought is also guilty, expresses

the essential concept of the principle of mens rea. Henceforth, it becomes important to

establish Anmol’s mens rea

In the present factual matrix, Anmol’s mens rea can be understood from two instances.

 The weapon not found – On 15th September, when the crime occurred, when

constable Kalia entered the house he found Anmol staring Malik’s dead body and not

the murder weapon that is, the gun. Hence, this is to be believed that Anmol hid the

gun as there was no one else in the room.

 Anmol’s text to Sneha – on the same day when the constable was taking Anmol, he

texted his sister Senha, “kaam khatam!! Malik nahi raha”. These words represent his

intention to kill Malik, also when the other chats were reviled it was understood that

Anmol always talked to Sneha about wishing Malik to be dead.

As the mens rea has been established it can also be understood that the defence of grave

and sudden provocation will not apply as Anmol always wished Malik to die, 15th
9
 PLEADINGS MEMORANDUM FOR THE RESPONDENTS
September was the time when he got the chance to kill Malik.

b) Establishment of actus reus- The Latin term actus reus implies 'guilty act' The

physical component of a crime is known as actus reus. In most cases, the accused must

have done or failed to do something that caused injury to the plaintiff or victim.

In the present case, the actus reus will be the gunshot hit by Anmol on Malik’s neck

which resulted in Malik’s death.

In the case of State of Gujarat v. Acharya D Pandey1, it was held that the general rule of law

that no crime can be committed unless there is mens rea has not been ousted by the particular

enactment the mens rea means some blameworthy mental condition, whether constituted by

knowledge or intention or otherwise

2. Anmol shall not be exempted to be held liable on the basis of considering him a juvenile.

In the present case, it is submitted that section 2(2) of the Juvenile Justice Act with defines

juveniles in conflict with Law shall not be considered. Section 2(2) quotes’

“Juvenile in conflict with law” means a juvenile who is alleged to have committed an offence

and has not completed eighteenth year of age as on the date of commission of such offence.”

The level of maturity shall be considered as laid down in the Mukesh & Anr v.State for NCT

of Delhi & Ors2

With reference to the given factual matrix, it can be understood that Anmol was mature enough

to understand the fact that Killing Malik was a wrongful act. This can be established by the

following:

 He voluntarily joined the local juvenile gang and have acquired knowledge of the

offensive nature of the activities that he involved in.

1
State of Gujarat v. Acharya D Pandey, SCR (2) 557 (1971), https://indiankanoon.org/doc/1485845/
2
Mukesh & Anr v. State for NCT Of Delhi & Ors, (2017) 6 SCC 1, https://indiankanoon.org/doc/68696327/
10
 PLEADINGS MEMORANDUM FOR THE RESPONDENTS

 He had the knowledge of his involvement in wrongful deeds and henceforth, he has

attempted to committing suicide.

 His marriage with Malik was with free consent.

 Anmol did not like Malik’s involvement in criminal activities which establishes the

fact that Anmol had capacity to identify criminal acts.

Hence it is submitted that Anmol should be considered as a mature person and not as a juvenile

who does not have knowledge of his wrongful actions.

II. WHETHER LEGAL SANCTION BE ACCORDED TO SAME SEX MARRIGIES?

It is most respectfully submitted before this Hon’ble Court that legal sanction should not be

accorded to same-sex marriages on three grounds. Firstly, same-sex marriages are against the

customs of Indian society. Secondly, same-sex marriages have problems related to adoption.

Thirdly, same-sex marriages would lead to violation and amendment of personal and codified

laws.

1. Same-sex marriages are against the customs of Indian society

Customs have traditionally played an essential part in the development of laws in India.

Indian society was built on customs and religious personal laws. The Privy Council stated

in Hurpurshad v. Sheo Dayal3 that "a custom is a rule which, in a specific family, or a

certain caste or society, or a particular territory, has attained the power of law by long

practice." It has to be old, certain, and sensible." Allowing same-sex marriages would

undermine the institution of marriage's customary rule, as well as be immoral and against

public policy. The attempt to recognise same-sex marriage will undoubtedly disrupt the

foundation of Indian social life.4

3
Hurpurshad v. Sheo Dayal, ILR 7 All 590 (1885), https://indiankanoon.org/doc/450737/
4
Kidangoor, A. (2021, January 6). Is India ready to legalize LGBTQ marriage? Time. Retrieved November 24, 2022,
from https://time.com/5926324/india-lgbtq-marriage-case/
11
 PLEADINGS MEMORANDUM FOR THE RESPONDENTS
2. Problem of adoption in same-sex marriages

Marriage has always been defined as a union between a "man" and a "woman." And the

major aim of marriage is procreation, rather than individual enjoyment or celebration of

love, which provides the foundation of society.5 As a result, same-sex marriages should not

be legalised because they do not fulfill the fundamentals of marriage. Furthermore, the

institution of marriage has a particular sacredness to it in which both sexes raise children

in the most natural way possible. It is not true that a person who is involved in a gay marriage

will never get out of it. Many gay people have walked away from it, married in a regular

fashion, and lived happily ever after.6 There is no law ensuring marriage and divorce

laws by the LGBTQIA community. Same-sex marriages may fail after a while, and the

couple may decide to live a normal family life. There is also a chance that a person's chances

of marrying multiple times will increase. In the possibility of such instability, the adoption

and rearing of children in a healthy way will not survive. According to studies, homosexual

couples are more likely to suffer from psychological disorders, which are extremely

harmful to their children. Furthermore, it has been discovered that male homosexual

couples are more susceptible to HIV and other STDs, making them unsuitable for adoption.7

3. Violation and amendment of existing codified laws and personal laws

Marriage is a legally and socially sanctioned relationship between a man and a woman that

result in several rights and duties. Domestic violence, dowry, cruelty, divorce, and other

legal procedures that clearly refer to a biological woman as the wife and a biological male

5
Jain, G. (2019). SIGNIFICANCE OF MARRIAGE AS SOCIAL INSTITUTION IN INDIAN ENGLISH WRITINGS.
In Social Values and Society (Vol. 1, Issue 1, pp. 17–22). ZIbeline International Publishing.
https://doi.org/10.26480/svs.01.2019.17.22
6
Kidangoor, A. (2021, January 6). Is India ready to legalize LGBTQ marriage? Time. Retrieved November 24, 2022,
from https://time.com/5926324/india-lgbtq-marriage-case/
7
Dangers of same-sex couples adopting children: EWTN. EWTN Global Catholic Television Network. (n.d.). Retrieved
November 24, 2022, from https://www.ewtn.com/catholicism/library/dangers-of-samesex-couples-adopting-children-
2986
12
 PLEADINGS MEMORANDUM FOR THE RESPONDENTS
as the husband would not apply to the participants in a same-sex marriage. The government

has also argued that the registration of same-sex marriages would result in the violation of

existing personal as well as codified law provisions such as the degree of prohibited

relations, ceremonial and ritual requirement, etc.8 Allowing same-sex marriage will

necessitate changes to all existing legislation.

III. WHETHER ATTEMPT TO SUICIDE BE CONSIDERED DECRIMINALISED AFTER

THE ENFORCEMENT OF MENTAL HEALTHCARE ACT?

It is humbly submitted before the court that attempt to suicide should not be considered

decriminalized. Although Section 115 of The Mental HealthCare Act,2017 decriminalises the

same superseding Section 309 of IPC. It primarily focusses on presumption of severe stress in

case of attempt to commit suicide. A person who attempts to commit suicide may be presumed

to be under stress however, this presumption comes with a concomitant diction of ‘unless proved

otherwise’, thus making it clear that this presumption can be disproved.". It quotes,

115 (1) Notwithstanding anything contained in section 309 of the Indian Penal Code any person

who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe

stress and shall not be tried and punished under the said Code.

The fundamental idea of the above section is to save a distressed mind from the torment of trial.

But in the course of disproving the said presumption of the provision, The Court needs

evidences adduced to both the parties. The various stages of evidences would naturally require

the suicide victim to testify before the court, ultimately provoking him/her to revisit all the facts.

Hence, this provision in itself is a paradox which despite accommodating the distressed not face

the trial, it indirectly makes the person undergo the same. It is pertinent to note that

section 115(1) the MHCA, 2017 creates a distinction between an attempt to commit suicide

8
Kidangoor, A. (2021, January 6). Is India ready to legalize LGBTQ marriage? Time. Retrieved November 24, 2022,
from https://time.com/5926324/india-lgbtq-marriage-case/
13
 PLEADINGS MEMORANDUM FOR THE RESPONDENTS
under stress and a stress-free attempt. Such a distinction, however, overturns the ruling in

Thomas Master v. Union of India9, which concluded that there is no difference between people

who chose to terminate their lives after leading successful ones and those who do so because

they are under stress or attempt to do so. The Court continued vehemently, stating that there

cannot be a distinction between suicides carried out hastily or after careful consideration. Thus,

the MHCA, 2017 is the quintessence of perfunctory exercise of judicial power in the name of

legislative power.10

To site the factual sheet as an example, in the case mentioned above, “Severe Stress” was not

inherently received by the petitioner. Rather it was his choice to enter the local juvenile gang.

Section 115 of the MHCA,2017 provokes the government to consider the stress and the

depression of the victim and the circumstances that lead him towards taking such step.

Circumstances that led Anmol take that step was the deviation from his normal life. This

deviation from normal life was voluntary as Anmol chose loitering, pick pocketing and drugs

over everything. It is the game of intention and stress. In Emperor v. Dwaraka Poonja11, Mr.

Poonja had jumped into a well to evade arrest by the police and not with an intention to die.

Hence, he was not charged under Section 309. Thus, if a person takes an overdose of poison by

mistake or in a state of intoxication, or jumps into a well to evade capture by the pursuers, he/she

would not be guilty under this section.

For the reasons Cited above, Anmol is not eligible to qualify under the provision of Section 115

of MHCA. Instead, he should be convicted by the magistrate through 309 of IPC.Suicide may

be a legal peculiarity where in attempted act is offensive while accomplished is not. The idea of

repealing 309 and decriminalising suicide after the Mental Healthcare Act should not

be used as a weapon that bestows everyone a choice to die. Instead it is a trigger for us to support

9
C.A. Thomas Master And Etc. v. Union Of India And Ors, CriLJ 3729 (2000), https://indiankanoon.org/doc/1374554/
10
Mental healthcare act, 2017: Legislation with a flawless facade. The Law Blog. (2020, July 15). Retrieved November
24, 2022, from https://thelawblog.in/2020/07/15/mental-healthcare-act-2017-legislation-with-a-flawless-facade/
11
Emperor v. Dwaraka Poonja, 14 BOMLR 146 (1912), https://indiankanoon.org/doc/1234725/
14
PLEADINGS MEMORANDUM FOR THE RESPONDENTS
those in distress collectively bolding it as a social responsibility thereby creating stoppage of

suicides and enhancing protection of all the citizens. Also if 309 IPC is revoked or repealed, the

state will not be able to emphasize on all kinds of suicide attempts. Hence decriminalization of

attempt to suicide should not be the solution.

15
PRAYER MEMORANDUM FOR THE RESPONDENTS

PRAYER

Wherefore in the light of facts presented, issues raised, arguments advanced and authorities

cited, the Counsel on behalf of the Respondents humbly pray before this Hon’ble Court that it

may be pleased to adjudge and declare that:

1. Anmol is liable for the murder of Malik under Section 302 of IPC.

2. Legal Sanction shall not be accorded to same sex marriages.

3. Attempt to suicide shall not be considered decriminalized after the enforcement of the Mental

Health Care Act.

And/Or pass any other order that the court may deem fit in the light of justice, equity, and

good conscience.

And for this Act of kindness of Your Lordships the Respondents shall as duty bound ever

pray.

Sd/-

COUNSELS FOR RESPONDENTS

XVII