TEAM CODE – TC 15R

[B.M. SREENIVASAIAH MEMORIAL 7TH NATIONAL MOOT COURT

COMPETITION, 2022]
[NAME OF THE MOOT COURT COMPETITION, YEAR]
BEFORE

Before SUPREME COURT OF SINDHU DESH

[NAME OF THE FORUM]

FILED UNDER ARTICLE 136 OF CONSTITUTION OF SINDHU DESH
IN THE MATTER BETWEEN :
[PETITION / APPLICATION / CASE] NUMBER _______ / [YEAR]

FILED UNDER [PROVISION NUMBER] OF

[NAME OF THE STATUTE]

REPUBLIC OF SINDHU DESH………………………………….PETITIONER

IN THE CASE CONCERNING

V.[SUBJECT-MATTER OF THE CASE]
SHRUTHYALAYA…………………………………………....RESPONDENTS
AND

CLUBBED WITH
IN THE MATTER BETWEEN:

KARUNADU HARASSED HUSBANDS ASSOCIATION

[NAME OF THE PETITIONER] [PETITIONER]
(KHHA)……………………………………………………………PETITIONER
. V
SHRUTHYALAYA……………………………………………….RESPONDENT
versus

[NAME OF THE RESPONDENT] [RESPONDENT]

MEMORIAL FOR RESPONDENT

MEMORIAL for [PETITIONER / RESPONDENT

PAGE | I
TABLE OF CONTENTS

INDEX OF AUTHORITIES ............................................................................................... 4

INDEX OF ABBREVIATIONS........................................................................................ 12

STATEMENT OF JURISDICTION ................................................................................ 16

STATEMENT OF FACTS ............................................................................................... 17

ISSUES RAISED ............................................................................................................... 18

SUMMARY OF ARGUMENTS ....................................................................................... 19

ARGUMENTS ADVANCED ........................................................................................... 21

ISSUE A: WHETHER THE SPECIAL LEAVE PETITION FILED UNDER ART. 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? ................................................................................................................... 21

I. Substantial justice has been done with the parties. ................................................. 21

II. Inference from a pure question of fact is in itself a fact. ......................................... 22

III. No substantial question of law is involved. ........................................................... 23

IV. The Petitioner has not exhausted alternative remedies available. .......................... 24

ISSUE B(I) WHETHER EXCEPTION 2 TO § 375 OF THE SINDHU DESH PENAL

CODE VIOLATESART. 14, 19 AND 21 OF THE CONSTITUTION? ...................... 25

I. Exception 2 to § 375 of the Sindhu Desh Penal Court violates Art. 14 of the
Constitution. ................................................................................................................ 25

II. Exception 2 to § 375 of the Sindhu Desh Penal Court violates Art. 19 of the
Constitution. ................................................................................................................ 28

III. Exception 2 to § 375 of the Sindhu Desh Penal Court violates Art. 21 of the
Constitution. ................................................................................................................ 30

ISSUE B(II) WHETHER FORCEFUL INTERCOURSE BY A MAN WITH HIS

WIFE AGAINST HER WILL AND/OR WITHOUT HER CONSENT CAN BE
CRIMINALIZED AS CONSTITUTING ‘RAPE’ UNDER PROVISIONS OF § 375 OF
THE PENAL CODE? .................................................................................................... 32
2
 I. Exception 2 to § 375 is an archaic law and is based on outdated ideas of marriage. 32

II. Exception 2 to § 375 of the Penal Code is manifestly arbitrary as it sought to

decriminalize a crime as heinous as rape. ..................................................................... 34

III. Exception 2 violates the Right to Health of married women. .............................. 35

ISSUE C: WHETHER THE OFFENCE OF RAPE UNDER § 375 OF THE SINDHU

DESH PENAL CODE IS REQUIRED TO BE MADE GENDER-NEUTRAL? ........ 36

I. Art. 15(3) of the Constitution mandates positive discrimination in favour of women.

36

II. The issue at hand lies beyond the jurisdiction of the Court. ................................... 39

PRAYER FOR RELIEF ................................................................................................... 41

3
INDEX OF AUTHORITIES

CASES

A.V. Muniswamy v. State of Karnataka, 1985 SCC OnLine Kar 94 (India) ......................... 23

A.V. Papayya Sastry v. Government of Andhra Pradesh, AIR 2007 SC 1546. ..................... 17

Aarushi Dhasmana v. Union of India, (2013) 9 SCC 475 (India). ........................................ 26

Aero Traders Private Limited v. Ravider Kumar Suri, AIR 2005 SC 15. ............................. 17

Ajit Singh (II) v. State of Punjab, (1999) 7 SCC 209 (India) ................................................ 22

Amarchand Sobhachand v. CIT, AIR 1971 SC 720 ............................................................. 19

Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454 (India) ....................... 27

Ashwani Kumar v. Union of India, (2019) 2 SCC 636 (India) ............................................. 31

B. Prabhakar Rao v. State of Andhra Pradesh, (1986) 3 SCC 647 ........................................ 22

Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490 (India) .............................. 24

British India Steam Navigation Co. Ltd. v. Jasjit Singh Additional Commissioner of Customs,
AIR 1964 SC 1451 .......................................................................................................... 20

Budhan v. State of Bihar, A.I.R. 1955 S.C. 191 (India) ....................................................... 21

Burton v. Wilmington Authority, (1961) 365 US 715 .......................................................... 34

C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil, AIR 1996 SC 1697. ... 33

Cellular Operators Ass'n of India v. T.R.A.I., (2016) 7 SCC 703 (India).............................. 25

Cf. Marsh v. Alabama, (1946) 326 US 501 .......................................................................... 34

Chairman of Ry. Bd. v. Chandrima Das, (2000) 2 SCC 465 (India). .................................... 27

CIT v. Lotus Capital Financial Services Ltd., ITAT 125 of 2012. ........................................ 20

CIT v. Maganlal Chaganlal (P) Ltd., (1997) 11 SCC 557..................................................... 18

CIT v. Orissa Corp Ltd., AIR 1986 SC 1849. ...................................................................... 19

Commissioner of Income Tax v. P. Mohanakala, (2007) 210 CTR 20 (SC). ........................ 20

Common Cause v. Union of India, (2018) 5 SCC 1 (India) .................................................. 26

4
Council of Scientific and Industrial Research v. K. G. S. Bhatt, (1989) 4 SCC 635.............. 17

Dattatraya Mottiram v. State of Bombay, AIR 1953 Bom 311 ............................................. 34

Deepak Gulati v. State of Haryana, AIR 2013 SC 2071. ...................................................... 35

Devidas Ramachandra Tuljapurkar v. State of Maharashtra ................................................. 24

Dhakeswari Cotton Mills Ltd. v CIT West Bengal, (1955) AIR 65 (SC) .............................. 18

Dudgeon v. U.K., [1982] 4 E.H.R.R. 149 ............................................................................ 25

E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3 (India) ............................................. 23

Francis Coralie Mullin v. Adm'r Union Territory of Delhi, (1981) 1 SCC 608 (India) ......... 26

Gayle v. Browder, (1956) 352 US 903................................................................................. 34

Girdhar Gopal v. State, AIR 1953 Madhya Bharat 147 ........................................................ 33

Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148 (India) ........................................... 26

Govt. of A.P. v. P.B. Vijayakumar, AIR 1995 SC 1648. ...................................................... 34

Gurbakhsh Singh v. State of Punjab, AIR 1955 SC 320 ....................................................... 18

H.M. Advocate v. Duffy, (1983) S.C.(J.) 3 (Scotland) ......................................................... 28

H.M. Advocate v. Paxton, (1984) S.C.(J.) 105 (Scotland). ................................................... 28

Harakchband v. Union of India, (1970) 3 SCC 845 ............................................................. 21

Hero Vinoth (Minor) v. Seshammal, AIR 2006 SC 2234. .................................................... 19

Iftikhar Hussain Shah v. State of J.&K., 2018 SCC OnLine J&K 527 (India) ...................... 23

Indian Young Lawyers Ass'n v. State of Kerala, 2018 SCC OnLine SC 1690 (India) .......... 25

Indra Sawhney v. Union of India, (2000) 1 SCC 168 (India) ............................................... 22

Indu Devi v. State of Bihar, (2017) 14 SCC 525 (India). ..................................................... 27

Jagdih Lal & Ors. v. State of Haryana & Ors. ...................................................................... 36

Jaipur Dev. Auth. v. Daulat Mal Jain, (1997) 1 SCC 35 (India) ........................................... 22

Jarnail Singh v. State of Raj., 1971 SCC OnLine Raj 76 (India) .......................................... 25

5
Joseph Shine v. Union of India, (2018) 2 SCC 189 (India) ........................................... passim

K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 (India) .............................................. 24

Kaushal Kishore v. State of Uttar Pradesh, (2016) 9 SCC 395 (India) .................................. 24

Kharak Singh v. State of Uttar Pradesh, (1964) 1 SCR 332 (India) ...................................... 26

Lachhman Dass v. State of Punjab, A.I.R. 1963 S.C. 222 (India) ......................................... 23

M. Janardhana Rao v. Joint Commissioner of Income Tax, AIR 2005 SC 1309. .................. 19

M.C. Mehta v. Union of India, AIR 2004 SC 4618. ............................................................. 17

M.G. Badappanavar v. State of Karntataka, (2001) 2 SCC 666 (India) ................................ 22

Mahadeb Jiew v. B.B. Sen, AIR 1951 Calcutta 563 ............................................................. 34

Mahmood Farooqui v. State (Gov't. of N.C.T. of Delhi), 2017 SCC OnLine Del 6378 ........ 25

Malabar Industrial Co. Ltd. v. CIT, (2000) 243 ITR 83 (SC) ............................................... 20

Maneka Gandhi v. Union of India, (1978) 1 SCC 248 ......................................................... 24

Marimuthu v. Inspector of Police, 2016 SCC OnLine Mad 10175 (India). ........................... 26

Masroor Ahmed v. State (NCT of Delhi), 2007 SCC OnLine Del 1357 (India) .................... 30

Mohan Kumar Singhania v. Union of India, (1991) 2 SCC 25 ............................................. 22

Mohd. Iqbal v. State of Jharkhand, (2013) 14 SCC 481 (India) ............................................ 27

Moulin Rouge Pvt. Ltd. v. Commercial Tax Officer, (1998) 1 SCC 70. ............................... 21

Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1 (India) .................................................... 29

Muller v Oregon, (1908) 208 US 412 .................................................................................. 34

N. Suriyakala v. A. Mohandoss, (2007) 9 SCC 196. ............................................................ 18

N.K. Bajpai v. Union of India, (2012) 4 SCC 653 (India) .................................................... 25

Nagar Nigam v. A.L. Faheem Meat Exports (Pvt.) Ltd., (2006) 13 SCC 382 (India) ............ 31

Naresh Kumar v. Union of India, (2004) 4 SCC 540 (India) ................................................ 21

Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 ................................................ 25, 27

6
Naz Found. v. Gov't of N.C.T. of Delhi, 2009 SCC OnLine Del 1762 (India) ...................... 25

Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1 (India). ................................... 23

Nimeshbhai Bharatbhai Desai v. State of Gujarat, 2018 SCC OnLine Guj 732 (India) ......... 31

Norris v. Ireland, [1988] 13 E.H.R.R. 186 ........................................................................... 25

O.K. Ghosh v. E.X. Joseph, A.I.R. 1963 S.C. 812 (India) .................................................... 25

Occupational Health & Safety Ass'n v. Union of India, (2014) 3 SCC 547 (India) ............... 31

Om Prakash v. State of Raj., (2012) 5 SCC 201 (India) ....................................................... 24

Onkarlal Nandlal v. State of Rajasthan, (1985) 4 SCC 404 .................................................. 20

Pathumma v. State of Kerala, (1978) 2 SCC 1 ..................................................................... 36

Prahlad v. State of Haryana, (2015) 8 SCC 688 (India) ........................................................ 26

Pramati Educ. & Cultural Trust v. Union of India, (2014) 8 SCC 1 (India) .......................... 26

Pritam Singh v. The State, AIR 1950 SC 169 ...................................................................... 20

R v. Clarence, [1888] 22 Q.B.D. 23. .................................................................................... 26

R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632 (India) .......................................... 26

R. v. R, [1991] U.K.H.L. 12 ................................................................................................ 29

R.K. Dalmia v. Justice Tendulkar, A.I.R. 1958 S.C. 538 (India) .......................................... 22

R.K. Garg v. Union of India, (1981) 4 SCC 675 (India) ....................................................... 22

Raja Ram Pal v. The Hon’ble Speaker, Loksabha, (2007) 3 SCC 184 .................................. 36

Ramji Lal Modi v. State of Uttar Pradesh, A.I.R. 1957 S.C. 620 (India) .............................. 25

Ratan Lal v. State of Raj., 2003 SCC OnLine Raj 317 (India) ............................................. 24

Richard M. Nixon v. Adm'r of General Serv., 433 U.S. 425 (1977) ..................................... 26

S. Sushma v. Commissioner of Police, 2021 SCC OnLine Mad 2096 .................................. 30

Sakhwant Ali v. State of Orissa, A.I.R. 1955 S.C. 166 (India) ............................................. 22

Sakshi v. Union of India, (2004) 5 SCC 518 (India). ........................................................... 27

7
Samvita Samvedi v. Union of India, (1996) 2 SCC 380 (India)............................................ 22

Santhini v. Vijaya Venketesh, (2018) 1 SCC 1 (India) ......................................................... 27

Santosh Hazari v Purushottam Tiwari, (2001) 3 SCC 179 (SC). .......................................... 19

Shahdad v. Mohd. Abdullah Mir, AIR 1967 J&K 120 ......................................................... 33

Shampa Singha v. State of West Bengal, 2019 SCC OnLine Cal 153 (India). ...................... 27

Shankar Kisanrao Kdahe v. State of Maharashtra, (2013) 5 SCC 546 (India) ....................... 29

Sharda v. Dharampal, (2003) 4 SCC 493 (India); see also P.U.C.L. v. Union of India, (1997) 1
SCC 301 (India)............................................................................................................... 26

Sharma Transp. v. Govt. of Andhra Pradesh, (2002) 2 SCC 188 (India) .............................. 24

Shayara Bano v. Union of India, (2017) 9 SCC 1 (India) ..................................................... 23

Shreya Singhal v. Union of India, (2015) 5 SCC 1 (India) ................................................... 25

Sir Chunilal Mehta & Sons Ltd. v. Century Spinning & Mfg. Co. Ltd., AIR 1962 SC 1314. 19

Sonubhai Yeshwant Jadhav v. Bala Govinda Yadav, A.I.R. 1983 Bom. 156 (India) ............ 22

Sowmithri Vishnu v UOI, AIR 1985 SC 1618 ..................................................................... 34

State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501 (India) ...................................... 25

State of Andhra Pradesh v. Bodem Sundara Rao, (1995) 6 SCC 230 ................................... 23

State of H. P. v. Kailash Chand Mahajan, AIR 1992 SC 1277 ............................................. 17

State of Karnataka v. Krishnappa, (2000) 4 SCC 75 (India) ................................................. 23

State of Madhya Pradesh v. Bablu Nath, (2009) 2 SCC 272 (India) ..................................... 31

State of Madhya Pradesh v. Madan Lal, (2015) 7 SCC 681 (India) ...................................... 27

State of Maharashtra v. Madhukar Narayan Mardikar, (1999) 1 SCC 57 (India) .................. 26

State of Mysore v. M.H. Krishna Murthy, (1973) 3 SCC 559 .............................................. 22

State of Orissa v. Bidyabhushan Mohapatra, A.I.R. 1963 S.C. 779 (India) ........................... 23

State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 (India) ................................................. 27

State of Punjab v. Mohinder Singh Chawla, (1997) 2 SCC 83 (India) .................................. 31

8
State of Tamil Nadu v. K. Shyama Sunder, (2011) 8 SCC 737 (India) ................................. 24

State of Uttar Pradesh. v. Chhotey Lal, (2011) 2 SCC 550 (India). ...................................... 24

State of Uttar Pradesh. v. Ramdev Singh, (2004) 1 SCC 421 (India) .................................... 29

State of West Bengal v. Anwar Ali Sarkar, A.I.R. 1952 S.C. 284 (India) ............................. 22

State of West Bengal v. Subodh Gopal Bose, A.I.R. 1954 S.C. 92 (India) ........................... 24

Sudhesh Jhaku v. K.C.J., 1996 SCC OnLine Del 397 (India) ............................................... 27

Sunil Batra v. Delhi Administration & Ors, (1978) 4 SCC 49461. ....................................... 36

Suresh Kumar Koushal v. Naz Found., (2014) 1 SCC 1 (India) ........................................... 25

Sushil Kumar Sharma v. Union Of India, AIR 2005 SC 3100.............................................. 30

Swiss Ribbons Pvt. Ltd. v. Union of India, 2019 SCC OnLine SC 73 (India) ...................... 23

Thamsi Goundan v. Kanni Ammal, AIR 1952 Mad 529. ..................................................... 33

Thota Sesharathamma v. Thota Manikyamma, (1991) 4 SCC 312 ....................................... 33

Union of India v. Indian Charge Chrome, (1999) 7 SCC 314 (India) ................................... 22

Union of India v. Rajeshwari & Co., AIR 1986 SC 1748 ..................................................... 18

Union of India v. S.C. Bagari, (1999) 3 SCC 709 ................................................................ 21

Uttar Pradesh Power Corp. v. Ayodhya Prasad, (2008) 10 SCC 139 (India)......................... 22

V.G. Row v. State of Madras, A.I.R. 1952 S.C. 196 (India) ................................................. 25

X v. State of N.C.T. of Delhi, 2008 SCC OnLine Del 104 (India) ........................................ 27

Yogendra Kumar Jaiswal v. State of Bihar, (2016) 3 SCC 183 (India) ................................. 22

Yusuf Abdul Aziz v. State of Bombay, AIR 1954 SC 321 ................................................... 33

Zahira Habibullah Sheikh v. State of Gujarat, AIR 2004 SC 3467. ...................................... 17

STATUTES

The Indian Penal Code, 1860 .............................................................................................. 21

CONSTITUTIONAL PROVISIONS

9
India Const. .............................................................................................................. 24, 33, 35

India Const. pmbl. ............................................................................................................... 25

JOURNALS

Charlotte L. Mitra, For She Has No Right or Power to Refuse Her Consent, 32 Crim. L. Rev.
558, 560 (1979). .............................................................................................................. 29

Dr. G. K. Goswami Siddhartha, ‘No’ to Marital Rape Exemption in Indian Law : Stepping
Stone to Gender Justice, 7 J. Law & Tech 77, 78 (2018) .................................................. 30

Dr. G. K. Goswami Siddhartha, ‘No’ to Marital Rape Exemption in Indian Law: Stepping Stone
to Gender Justice, 7 J. Law & Tech 77, 78 (2018); Dr. Nico & P. Swartz, Is a Husband
Criminally Liable for Raping his Wife? A Comparative Analysis, 3 Int'L J. Acad. Research.
and Reflection 71, 72 (2015)............................................................................................ 30

Jill Elain Hasday, Consent and Contest: A Legal History of Marital Rape, 88 Calif. L. Rev.
1373, 1375 (2000). .......................................................................................................... 28

Jonathan Herring, Rape & The Definiation of Consent, 26 N.L.S.I. Rev. 62, 65-67 (2014) .. 27

Jonathan Herringjesee Wall, The nature and significance of the right to bodily integrity, 76
Cambridge L. J. 566, 588 (2017)...................................................................................... 27

K. Alexa Koeing, The Jurisprudence of Sexual Violence, 7 Hum. Rts. Cent. U. Calif. 76, 81
(2011). ............................................................................................................................. 27

M. Foucault, To Have and to Hold: The Marital Rape Exemption and the Fourteenth
Amendment, 99 Harv. L. Rev. 1255, 1267-1269 (1986) ................................................... 30

Philip N. S. Rumney, When Rape Isn't Rape : Court of Appeal Sentencing Practice in Cases of
Marital and Relationship Rape, 19 Oxford J. Legal Stud. 243, 255 (1999) ....................... 29

Raveena Rao Kallakuru & Pradyumna Soni, Criminalisation of Marital Rape in India:
Understanding its Constitutional, Cultural and Legal Impact, 11 N.U.J.S. L. Rev. (2018) .30

Richard J. Gelles, Power, Sex and Violence: The Case of Marital Rape, 4 Fam. L. J. 26, 342
(1977). ............................................................................................................................. 28

Saurabh Mishra & Sarvesh Singh, Marital Rape-Myth, Reality and Need for Criminalization,
12 Web. L. J. 22, 24-27 (2003) ........................................................................................ 30

10
Shraddha Chaudhary, Reconceptualizing Rape in Law Reform, 13 Soc. Leg. Rev. 156, 165-
167 (2017) ....................................................................................................................... 25

BOOKS

Bose & Bhattacharyya, The Phobic and the Erotic: The Politics of Sexualities in Contemporary
India 29 (2007). ............................................................................................................... 25

Constitutional Assembly Debates 38 (New Delhi-Jaico Art India ed. 2003)......................... 25

D.J. de, The Constitution of India 850 (3rd ed. 2008). ......................................................... 25

Dr. Subash C. Kashyap, Constitutional Law of India 476 (2008). ........................................ 22

Durga das Basu, Commentary on the Constitution of India 689 (2007) ................................ 23

H.M. Seervai, Constitutional Law of India (4th ed. 2010). ................................................... 18

M.P Jain, Indian Constitutional Law 576 (2011).................................................................. 17

Shameek Sen, Right to Free Speech and Censorship: A Jurisprudential Analysis, J. Ind. L. Inst.
175,177 (2014). ............................................................................................................... 24

Susan Brownmiller, Against Our Will - Men, Women and Rape (1975) .............................. 35

INTERNET SOURCES

Justice J.S. Verma (Retd.), Report of the Comm. on Amendments to Criminal Law, (June 20,
2022, 04:45 AM),
htps//www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20c
ommitte%20report.pdf ..................................................................................................... 29

INTERNATIONAL TREATIES

G.A. Res. 217 (III) A, Universal Declaration of Human Rights, art. 25 (Dec. 10, 1948) ...... 31

International Covenant on Political Rights art. 21, Dec. 16, 1966, 999 U.N.T.S. 177 ........... 31

International Covenant on Economic, Social and Cultural Rights art. 10, July 7, 1979, U.N.T.S.
993 .................................................................................................................................. 31

11
INDEX OF ABBREVIATIONS

ABBREVIATIONS FULL FORM

& and

§ Section

¶ Paragraph

A.I.R. All India Reporter

A.P. Andhra Pradesh

All E.R. All England Report

anr. Another

Acad. Academy

Adm'r Administrator

Art. Article

Ass'n Association

Auth. Authority

Bom. Bombay

Cal. Calcutta

Calif. California

Cent. Central

Co. Company

Comm'n. Commission

12
Const. Constitution

Constr. Construction

Corp. Corporation

Del. Delhi

Dev. Development

Dir't Directorate

E.C.H.R. European Commission of Human Rights

E.H.R.R. European Human Right Report

Educ. Education

G.A. General Assembly

Gov't. Government

Guj. Gujarat

H.P. Himachal Pradesh

Hon'ble Honourable

i.e. That is

ICCPR International Covenant on Civil and Political Rights

ICESC International Covenant on Economic, Social and Cultural Rights

Inst. Institution

Int'l International

IPC Indian Penal Code

13
J. & K. Jammu and Kashmir

Kar. Karnataka

L.I.C. Life Insurance Corporation

Ltd. Limited

M.P. Madhya Pradesh

Mad. Madras

Mun. Municipal

N.C.T. National Capital Territory

N.G.O. Non-Governmental Organisation

NHFS National Health and Family Survey

No. Number

Ors. Others

P.& H. Punjab and Haryana

P.C. Privy Council

Para Paragraph

PIL Public Interest Litigation

Pmbl. Preamble

Pub. Public

Pvt. Private

P.W.D.V.A. Protection of Women from Domestic Violence Act

14
Q.B.D. Queen's Bench Division

Raj. Rajasthan

Rev. Review

S.C. Supreme Court

S.C.C. Supreme Court Cases

S.C.R. Supreme Court Reporter

Supp. Supplementary

TRAI Telecom Regulatory Authority of India

U.K. United Kingdom

U.K.H.L. United Kingdom House of Lords

U.S. United States

UDHR Universal Declaration of Human Rights

U.N.T.S. United Nations Treaty Series

v. Versus

viz. Namely

15
STATEMENT OF JURISDICTION

In the present appeal under SPECIAL LEAVE PETITION of Art. 136 of the Sindhu Desh
Constitution concerning the matter of Marital Rape the Respondent humbly submits to the
Jurisdiction of this Hon’ble Tribunal.

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

16
STATEMENT OF FACTS

The Parties

Igor and Laila are a couple living in Karunadu State and both are married for 2 months now.
Karunadu Harassed Husbands Association (“KHHA”) represents men and grandparents who
are not given access to grandchildren in custody cases and provides legal assistance to men in
false criminal cases. Shruthyalaya is a Non-Governmental Organization that works for urban
women who are facing any sort of abuse.

The Issue

The marriage between Igor and Laila was yet to be consummated after 2 months of marriage.
On October 14, 2021, after getting themselves intoxicated at a party, Igor expressed his wish
to consummate the marriage but Laila in her intoxicated state was unable to communicate
properly. The next day upon waking up from sleep, Laila surmises that the previous night, Igor
had sexual intercourse with her. She files a police complaint with the Women’s Police Station
at Vitosha and a First Information Report (“FIR”) under Sections 350, 351, 354, 375 r/w 376
of the Sindhu Desh Penal Code of 1860 (“Penal Code”).

Thereafter the Magistrate altered the charges and removed the reference to the commission of
offences under § 375 r/w § 376 of the Penal Code on the ground of Exception 2 of § 375.
Feeling aggrieved, Laila filed a Writ Petition under Art. 226 and arrayed the State of Karunadu
and Republic of Sindhu Desh along with Igor as the Respondents challenging the vires of
Exception 2 of § 375 of the Sindhu Desh Penal Code.

The Conflict

The Hon’ble High Court held that Exception 2 to § 375 of the Sindhu Desh Penal Code is ultra-
vires the Constitution of Sindhu Desh and directed the Republic of Sindhu Desh to amend the
law relating to ‘Rape’ by making it gender-neutral in light of § 377. Subsequently, the KHHA
filed several representations to the government against the High Court order of criminalizing
Exception 2 and Shruthyalaya were against making § 375 gender-neutral. Thereafter, the
Republic of Sindhu Desh filed a Special Leave Petition before the Supreme Court of Sindhu
Desh against the judgment of the High Court of Karunadu.
17
ISSUES RAISED

ISSUE A:

WHETHER THE SPECIAL LEAVE PETITION FILED UNDER ART. 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 B(I):

WHETHER EXPLANATION 2 OF § 375 OF THE SINDHU DESH PENAL CODE IS

VIOLATIVE OF ART. 14, 19 AND 21 OF THE CONSTITUTION?

ISSUE B(II):

WHETHER FORCEFUL INTERCOURSE BY A MAN WITH HIS WIFE AGAINST HER

WILL AND/OR WITHOUT HER CONSENT CAN BE CRIMINALIZED AS
CONSTITUTING ‘RAPE’ UNDER PROVISIONS OF § 375 OF THE PENAL CODE?

ISSUE C:

WHETHER THE OFFENCE OF RAPE UNDER § 375 OF THE SINDHU DESH PENAL
CODE IS REQUIRED TO BE MADE GENDER NEUTRAL?

18
SUMMARY OF ARGUMENTS

ISSUE A: THE SPECIAL LEAVE PETITION FILED UNDER ART. 136 OF THE CONSTITUTION
OF SINDHU DESH IS NOT PROPER AND/OR VALID SINCE THE STATE IS UNDER AN

OBLIGATION TO TREAT MEN AND WOMEN EQUALLY.

It is humbly submitted before this Hon’ble SC of Sindhu Desh that the Special Leave Petition
filed by the Petitioner is not maintainable as Special Leave cannot be granted when substantial
justice has been done by the HC of Karunadu and no exceptional or special circumstances exist
for the case to be maintainable. Also, the present case involves no substantial question of law
and inference is based on pure question of fact which is entitled to be dismissed. Moreover, the
parties have not exhausted all the alternative remedies available to them before approaching
the SC.

ISSUE B(I): EXCEPTION 2 TO § 375 OF THE SINDHU DESH PENAL CODE VIOLATES ART. 14,
19 AND 21 OF THE CONSTITUTION.

It is humbly submitted before the Hon’ble Court that Exception 2 does not violate Art. 14
because an unreasonable classification is created and the same is manifestly arbitrary in nature.
Similarly, Exception 2 IPC does not violate Art. 19 of the Indian Constitution as a married
woman has the fundamental right to give consent to sexual intercourse under Art. 19(1)(a)
whereas Exception 2 imposes an unreasonable restriction and does not violate Art. 21 as it
deprives married women of her right to life and personal liberty because Exception 2 violates
the right to privacy of married women.

ISSUE B(II): FORCEFUL INTERCOURSE BY A MAN WITH HIS WIFE AGAINST HER WILL
AND/OR WITHOUT HER CONSENT CAN BE CRIMINALIZED AS CONSTITUTING ‘RAPE’ UNDER

PROVISIONS OF § 375 OF THE PENAL CODE.

It is humbly submitted that Exception 2 of § 375 is an archaic law based on outdated ideas of
marriage which does not square with constitutional morality, would become manifestly
arbitrary, having lost its rationale and being utterly irrational and capricious. Moreover, it is
submitted that defending an offense as grave and heinous as rape is untenable. It is a moral

19
right of a woman to refuse unwanted, forcible sexual intercourse. This case is about respecting
the right of a wife to say “no” to sexual intercourse and recognizing that marriage is no longer
a universal license to ignore consent. There is a gross misuse of this law and how, misuse of
the law needs to be dealt with is an aspect which would require the intervention of the
legislature.

ISSUE C: THE OFFENCE OF RAPE UNDER SECTION 375 OF THE SINDHU DESH PENAL CODE
IS NOT REQUIRED TO BE MADE GENDER NEUTRAL.

It is humbly submitted before the Hon’ble Supreme Court of Sindhu Desh that the offence of
Rape under § 375 of the Sindhu Desh Penal Code is not required to be made gender neutral.
Further, Art. 15(3) enacts that nothing in Art. 15 shall prevent the State from making any
special provision for women and children. From the reading of clauses (1), (2) and (3) of Art.
15 together follows that while discrimination on the basis of sex is impermissible, special
provisions for women and children are valid and permissible. It is hence submitted that § 375
of the Sindhu Desh Penal Code is one such provision which is protected under this clause.
Moreover, it is beyond the jurisdiction of the Court to amend a constitutionally valid
legislation.

20
ARGUMENTS ADVANCED

ISSUE A: WHETHER THE SPECIAL LEAVE PETITION FILED UNDER ART. 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?

[¶1] It is humbly submitted before this Hon’ble SC of Sindhu Desh that the Special Leave
Petition filed by the Petitioner is not maintainable as Special Leave cannot be granted when
substantial justice has been done by the HC of Karunadu and no exceptional or special
circumstances exist for the case to be maintainable. Also, the present case involves no
substantial question of law and inference is based on pure question of fact which is entitled to
be dismissed. Moreover, the parties have not exhausted all the alternative remedies available
to them before approaching the SC.

I. Substantial justice has been done with the parties.

[¶1] It is humbly contended that the Petitioner must show that exceptional circumstances
exist and that if there is no interference, it will result in substantial and grave injustice and the
case has features of sufficient gravity to warrant review of the decision appealed against, on
merits. Only then would the Court exercise its overriding powers under Art. 136.1 Special leave
will not be granted when there is no failure of justice or when substantial justice is done, though
the decision might suffer from some legal errors.2

[¶2] Although the power under Art. 136 has been held to be plenary, limitless 3 ,
adjunctive, and unassailable,4 in M. C. Mehta v. Union of India5 and Aero Traders Private
Limited v. Ravider Kumar Suri,6 it was held that the powers under Art. 136 should be exercised
with caution and in accordance with law and set legal principles. Art. 136 does not confer a
Right of Appeal, but merely, a discretionary power to the Supreme Court to be exercised for

1
M.P Jain, Indian Constitutional Law 576 (2011).
2
Council of Scientific and Industrial Research v. K. G. S. Bhatt, (1989) 4 SCC 635; see also State of H. P. v.
Kailash Chand Mahajan, AIR 1992 SC 1277.
3
A.V. Papayya Sastry v. Government of Andhra Pradesh, AIR 2007 SC 1546.
4
Zahira Habibullah Sheikh v. State of Gujarat, AIR 2004 SC 3467.
5
M.C. Mehta v. Union of India, AIR 2004 SC 4618.
6
Aero Traders Private Limited v. Ravider Kumar Suri, AIR 2005 SC 15.
21
satisfying the demands of justice under exceptional circumstances.7

[¶3] It is submitted that in the case at hand, no exceptional and special circumstances
have been shown by the Petitioner. The HC of Karunadu in the present case, has very
judiciously decided the case and no grave injustice has been done through the verdict passed
by it, moreover it created a gender-neutral law for the benefit of citizens. Art. 14 of the
Constitution of Sindhu Desh reads as under: “The State shall not deny to any person equality
before the law or the equal protection of the laws within the territory of India”, so state is
under an obligation to treat men and women equally.

[¶4] Further it is submitted that it is not possible to define the limitations on the exercise
of the discretionary jurisdiction vested in this Court under Art. 136. It being an exceptional and
overriding power, naturally, has to be exercised sparingly and with caution and only in special
and extraordinary situations. 8 Art. 136 does not give a right to a party to appeal to the SC rather
it confers a wide discretionary power on the SC to interfere in suitable cases. 9

[¶5] Hence, it is humbly submitted that this Court is not bound to go into the merits and
even if it were to do so, and declare the law or point out the error, still it may not interfere if
the justice of the case on facts doesn’t require interference or if it feels that the relief could be
molded in a different fashion.

II. Inference from a pure question of fact is in itself a fact.

[¶6] It is contended that the appeal doesn’t involve any substantial question of law rather
it involves pure question of fact and hence, is not maintainable. Questions of fact cannot be
permitted to be raised unless there is material evidence which has been ignored by the HC or
the finding reached by the Court is perverse. 10

[¶7] Generally, on finding of fact, no interference should be made.11 Even in cases where
conclusions are reached without proper discussion, yet if it involves finding on fact, no
interference of SC is called for.12 Further, if the conclusion is based on some evidence on which

7
N. Suriyakala v. A. Mohandoss, (2007) 9 SCC 196.
8
Dhakeswari Cotton Mills Ltd. v CIT West Bengal, (1955) AIR 65 (SC); see also H.M. Seervai, Constitutional
Law of India (4th ed. 2010).
9
Id.
10
Union of India v. Rajeshwari & Co., AIR 1986 SC 1748; see also Gurbakhsh Singh v. State of Punjab, AIR
1955 SC 320.
11
CIT v. Maganlal Chaganlal (P) Ltd., (1997) 11 SCC 557.
12
Amarchand Sobhachand v. CIT, AIR 1971 SC 720.
22
subsequently a conclusion could be arrived at, no question of law is raised. 13

[¶8] Since the contention of the Petitioner is that gender neutral rape laws and the
criminalization of marital rape would open pandora’s box and would interfere with the
institution of marriage is purely a question of fact, not of law. It is purely a question of fact
which can be decided on the basis of predetermined question of law as to the effect of this law
on marital relationships becomes a question of ethics and morality and its effect on society as
whole becomes a predetermined question which comes under the scope of public data, so
cannot be reviewed by this Court of law.

[¶9] To be ‘substantial’ a question of law must be debatable, not previously settled by

law of the land or a binding precedent and must have a material bearing on the decision of the
case, if answered either way, insofar as the rights of the parties before it is concerned. 14

III. No substantial question of law is involved.

[ ¶ 10 ] It must be kept in mind that the right of appeal is neither a natural nor an inherent
right attached to the litigation.15 Being a substantive statutory right, it must be regulated in
accordance with law in force at the relevant time. It cannot be decided merely on equitable
grounds.

[ ¶ 11 ] As per the test laid down under Sir Chunilal Mehta & Sons Ltd. v Century Spinning
& Mfg. Co. Ltd.,16 to determine whether a substantial question of law is involved is an open
question in the sense that there is no scope for interference by the HC with a finding recorded
when such finding could be treated to be a finding of fact; 17 if the question has been well-
settled by the Highest Court and it is merely a question of applying the settled principles in
determination of the matter.18

[ ¶ 12 ] Re-appreciation of evidence and substitution of the findings by the High Court is

impermissible. 19 Hence, it is submitted that on account of the fact that the position is well-
settled by this Court in its earlier decisions 20 no substantial question of law is involved in the

13
CIT v. Orissa Corp Ltd., AIR 1986 SC 1849.
14
Santosh Hazari v Purushottam Tiwari, (2001) 3 SCC 179 (SC).
15
Hero Vinoth (Minor) v. Seshammal, AIR 2006 SC 2234.
16
Sir Chunilal Mehta & Sons Ltd. v. Century Spinning & Mfg. Co. Ltd., AIR 1962 SC 1314.
17
M. Janardhana Rao v. Joint Commissioner of Income Tax, AIR 2005 SC 1309.
18
Supra note 16.
19
Commissioner of Income Tax v. P. Mohanakala, (2007) 210 CTR 20 (SC).
20
Malabar Industrial Co. Ltd. v. CIT, (2000) 243 ITR 83 (SC); see also CIT v. Lotus Capital Financial Services
23
present case.

IV. The Petitioner has not exhausted alternative remedies available.

[ ¶ 13 ] The doctrine of exhaustion of alternative remedies guides the practice and procedure
of the SC in the exercise of its power conferred under Art. 136. As per the principle, all the
statutory remedies would have to be exhausted before approaching the SC under its special
jurisdiction, unless special circumstances can be shown to convince the Court that it must allow
the appeal. 21 In the instant matter, the Petitioner should have first approached the HC of
Karunadu for review of its decision, and without resorting to that remedy he approached this
Hon’ble Court through a SLP.22

[ ¶ 14 ] The Petitioner had an option to resort to the jurisdiction of HC by appeal to the

Court’s higher bench or application for revision. The Respondents humbly submit that keeping
in view the precedents laid down by the Apex Court,23 the Petitioner’s sheer failure to exhaust
the available alternative remedies renders the current SLP non-maintainable.

Ltd., ITAT 125 of 2012.

21
British India Steam Navigation Co. Ltd. v. Jasjit Singh Additional Commissioner of Customs, AIR 1964 SC
1451.
22
Pritam Singh v. The State, AIR 1950 SC 169.
23
Onkarlal Nandlal v. State of Rajasthan, (1985) 4 SCC 404.
24
ISSUE B(I) WHETHER EXCEPTION 2 TO § 375 OF THE SINDHU DESH PENAL
CODE VIOLATESART. 14, 19 AND 21 OF THE CONSTITUTION?

[ ¶ 15 ] It is humbly submitted before the Hon’ble SC of Sindhu Desh that Explanation 2 of

§ 375 of Sindhu Desh Penal Code violates Art. 14 because an unreasonable classification is
created and the same is manifestly arbitrary in nature. Similarly, Exception 2 of IPC violates
Art. 19 of the Indian Constitution as a married woman has the fundamental right to give consent
to sexual intercourse under Art. 19(1)(a) whereas Exception 2 imposes an unreasonable
restriction, and it violates of Art. 21 as it deprives married women of their right to life and
personal liberty because Exception 2 violates the right to privacy of married women.

I. Exception 2 to § 375 of the Sindhu Desh Penal Court violates Art. 14 of the
Constitution.

[ ¶ 16 ] It is humbly submitted before the Hon’ble SC of Sindhu Desh that Explanation 2 of

§ 375 violates Articles 14, 19 and 21 of the Constitution. Hence, in this argument it is submitted
that: A) An unreasonable classification is created by Exception 2. (B) Exception 2 is manifestly
arbitrary in its nature.

A. An Unreasonable classification is created by Exception 2.

[ ¶ 17 ] To pass the test of reasonable classification under Art. 14, the classification should
be based on an intelligible differentia24 and the differentia should have a reasonable nexus with
the object sought to be achieved by the law in question. 25

[ ¶ 18 ] The ambit of ‘rape’ non-consensual sexual intercourse between a husband and wife
during the course of their marriage 26 has been kept out of the ambit of the section by Exception
2. 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 their dignity and the latter being, unmarried
women who are raped by a man, not being their husband, who are entitled to protection by the

24
Naresh Kumar v. Union of India, (2004) 4 SCC 540 (India); see also State of Uttar Pradesh v. Ram Gopal
Shukla, (1981) 3 SCC 1; Dhirendra Pandua v. State of Orissa, (2008) 17 SCC 311 (India).
25
Budhan v. State of Bihar, A.I.R. 1955 S.C. 191 (India); see also Harakchband v. Union of India, (1970) 3 SCC
845; see Union of India v. S.C. Bagari, (1999) 3 SCC 709; Moulin Rouge Pvt. Ltd. v. Commercial Tax Officer,
(1998) 1 SCC 70.
26
The Indian Penal Code, 1860 § 375.
25
criminal law under § 375 and § 376.

[ ¶ 19 ] It is submitted that Exception 2 creates an unreasonable classification because: i)

The classification is not found on intelligible differentia. ii) The differentia does not have a
reasonable nexus with the object.

i) The classification is not found on intelligible differentia.

[ ¶ 20 ] Intelligible differentia i.e., the basis of classification,27 must be rational28 and based
on some qualities or characteristics, 29 which are to be found in all the people grouped together
and not in others who are left out.

[ ¶ 21 ] It is submitted that there is no intelligible differentia in classifying victims of rape

on the basis of marital status for the purpose of protection of women from sexual offences as
the basis of classification can be anything until its ultra vires, 30 i.e., it is expressly prohibited
by the constitution. 31 Equality is a basic feature32 of the Indian Constitution and any treatment
of equals unequally will be ultra vires, 33 and violative of Art. 14.34 There is no intelligible
differentia in sub-classifying people of an indivisible class and which treats equals unequally. 35

[ ¶ 22 ] Furthermore, if the basis of classification is on the face of it arbitrary and palpably

unreasonable, it is not found on differentia intelligible 36. Moreover, in Savita Samvedi v. Union
of India,37 it was held that classification based on marital status is wholly unfair, unreasonable
and liable to be struck down under Art. 14.

[ ¶ 23 ] Hence, the Petitioner humbly submits that Exception 2 classifies the victims of the
heinous crime of rape on the basis of their marital status as it does not recognize rape within

27
State of West Bengal v. Anwar Ali Sarkar, A.I.R. 1952 S.C. 284 (India); see also Udai Raj Rai, Fundamental
Rights and their Enforcement 549 (2011).
28
Union of India v. Indian Charge Chrome, (1999) 7 SCC 314 (India); see also Mohan Kumar Singhania v. Union
of India, (1991) 2 SCC 25.
29
Sakhwant Ali v. State of Orissa, A.I.R. 1955 S.C. 166 (India); see also Dr. Subash C. Kashyap, Constitutional
Law of India 476 (2008).
30
Sonubhai Yeshwant Jadhav v. Bala Govinda Yadav, A.I.R. 1983 Bom. 156 (India).
31
R.K. Dalmia v. Justice Tendulkar, A.I.R. 1958 S.C. 538 (India).
32
Indra Sawhney v. Union of India, (2000) 1 SCC 168 (India); see also M.G. Badappanavar v. State of Karntataka,
(2001) 2 SCC 666 (India); Ajit Singh (II) v. State of Punjab, (1999) 7 SCC 209 (India).
33
Jaipur Dev. Auth. v. Daulat Mal Jain, (1997) 1 SCC 35 (India); see also Yogendra Kumar Jaiswal v. State of
Bihar, (2016) 3 SCC 183 (India); State of Mysore v. M.H. Krishna Murthy, (1973) 3 SCC 559.
34
Uttar Pradesh Power Corp. v. Ayodhya Prasad, (2008) 10 SCC 139 (India); see also Indra Sawhney, supra note
32.
35
B. Prabhakar Rao v. State of Andhra Pradesh, (1986) 3 SCC 647.
36
R.K. Garg v. Union of India, (1981) 4 SCC 675 (India).
37
Samvita Samvedi v. Union of India, (1996) 2 SCC 380 (India).
26
marriage and fails to provide protection of § 375 38 to married women. Hence, it is submitted
that Exception 2 which classifies the victim of rape on the basis of their marital status is wholly
arbitrary and irrational.

ii) The differentia does not have a reasonable nexus with the object.

[ ¶ 24 ] It is submitted that the classification does not have a reasonable nexus with the
object sought to be achieved by criminal law prohibiting sexual offence because the object is
to protect the dignity of women and punish the offender.

[ ¶ 25 ] The object of the act in question shall be ascertained from an examination of its title,
preamble and provision.39 The offence of ‘rape’ contained in §.37540 comes under the title of
‘sexual offences’ under chapter XVI41 of the IPC dealing with ‘offences affecting the human
body.

[ ¶ 26 ] The Petitioner submits that § 375 of IPC is a criminal law prohibiting sexual
offences. Further, the object of criminal law prohibiting sexual offences is to protect the dignity
and honour of a victimised woman42 and punishing the criminal by imposing an appropriate
sentence. 43 Hence, it is submitted that the object of Exception 2 is to protect the dignity of
women and punish the criminal.

B. Exception 2 is manifestly arbitrary in its nature.

[ ¶ 27 ] It is submitted that if an act is arbitrary, it is implicit that the act is antithetic to

equality and thus violative of Art. 14.44 Legislation is manifestly arbitrary in the sense that it is
made capriciously, irrationally, without adequate determining principle, not fair, not
reasonable, discriminatory, biased and/or denies equal treatment. 45

38
Supra note 26.
39
Durga das Basu, Commentary on the Constitution of India 689 (2007).
40
Supra note 26.
41
Id.
42
Ratanlal & Dhirajlal, The Indian Penal Code 2074 (2010); see also State of Karnataka v. Krishnappa, (2000) 4
SCC 75 (India).
43
State of Andhra Pradesh v. Bodem Sundara Rao, (1995) 6 SCC 230.
44
Iftikhar Hussain Shah v. State of J.&K., 2018 SCC OnLine J&K 527 (India); see also E.P. Royappa v. State of
Tamil Nadu, (1974) 4 SCC 3 (India); A.V. Muniswamy v. State of Karnataka, 1985 SCC OnLine Kar 94 (India).
45
Shayara Bano v. Union of India, (2017) 9 SCC 1 (India); see also Swiss Ribbons Pvt. Ltd. v. Union of India,
2019 SCC OnLine SC 73 (India); Joseph Shine v. Union of India, (2018) 2 SCC 189 (India); L.I.C. v. Consumer
Educ. & Research Centre, (1995) 5 SCC 482 (India); Lachhman Dass v. State of Punjab, A.I.R. 1963 S.C. 222
(India); State of Orissa v. Bidyabhushan Mohapatra, A.I.R. 1963 S.C. 779 (India).
27
[ ¶ 28 ] Further, it is submitted that Exception 2 which provides immunity to the husband
from marital rape is manifestly arbitrary because A discriminatory act by the legislature would
be manifestly arbitrary if it is not formed on adequate grounds and without any determining
principles. 46 An act is said to be formed without any adequate determining principle if it is not
found like things, non-rational, not done or acting according to reason or judgement, depending
upon will alone. 47

[ ¶ 29 ] It is contended that this discrimination is irrational and done unreasonably because

on the one hand a husband may be charged for a lesser offence while he is left unpunished for
committing the rape which is the most heinous48 crime which destroys the entire psychology
of a woman and pushes her to deep emotional crisis. 49 It has been held by this Court that while
the offence of murder kills the body, the offence of rape kills the soul. 50 Hence, it is submitted
that Exception 2 is discriminatory and formed without any adequate determining principle.

[ ¶ 30 ] Therefore, in conclusion, it is humbly submitted that Exception 2 violates Art. 14 of

the Sindhu Desh Constitution.

II. Exception 2 to § 375 of the Sindhu Desh Penal Court violates Art. 19 of the
Constitution.

[ ¶ 31 ] It is humbly submitted that Exception 2 to §375, IPC is violative of Art. 19 of the

Indian Constitution as: (A) A married woman has the fundamental right to give consent to
sexual intercourse under Art. 19(1)(a). (B) Exception 2 imposes an unreasonable restriction.

A. A married woman has the fundamental right to give consent to sexual intercourse
under Art. 19(1)(a).

[ ¶ 32 ] It is submitted that Art. 19(1)(a)51 guarantees every citizen the fundamental right to
freedom of speech and expression.52 The phrase ‘expression’ under Art. 19(1)(a) has a broad

46
Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1 (India).
47
Sharma Transp. v. Govt. of Andhra Pradesh, (2002) 2 SCC 188 (India); see also State of Tamil Nadu v. K.
Shyama Sunder, (2011) 8 SCC 737 (India).
48
Kaushal Kishore v. State of Uttar Pradesh, (2016) 9 SCC 395 (India); see also Om Prakash v. State of Raj.,
(2012) 5 SCC 201 (India); Ratan Lal v. State of Raj., 2003 SCC OnLine Raj 317 (India).
49
Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490 (India); see also State of Uttar Pradesh. v.
Chhotey Lal, (2011) 2 SCC 550 (India).
50
Id.
51
India Const. art. 19, cl. 1(a).
52
Id.
28
connotation. 53 The freedom of speech and expression can be exercised only when one is
entitled to decide upon his or her preferences. 54

[ ¶ 33 ] The freedom of an individual to engage in sexual activity is an expression of one's

sexual preference. 55 The freedom of an individual to decide on one's consensual adult
relationships, without the interference of the State is a fundamental human right. 56

[ ¶ 34 ] A woman, irrespective of her marital status has the right to decide upon her
preference of entering into sexual activity with her husband. Further, the act of sexual
intercourse must be contemporaneous with consent.57 Thus, a woman has a fundamental right
to either give consent or refuse to give consent to engage in sexual activity with her husband.

[ ¶ 35 ] Hence, it is contended that the right of married women to say no to sexual

intercourse with their husband within the marriage falls under Art. 19(1)(a).

B. Exception 2 imposes an unreasonable restriction.

[ ¶ 36 ] It is submitted that any restriction imposed on the exercise of the right under Art.
19(1)(a)58 would be unconstitutional59 if it does not fall under the four corners of reasonable
restriction under Art. 19(2).60 Constitutional morality is the soul of the Constitution, found in
the Preamble61 which declares its ideals and aspirations, and is also found in Part III of the
Constitution. 62

53
Maneka Gandhi v. Union of India, (1978) 1 SCC 248; see also State of West Bengal v. Subodh Gopal Bose,
A.I.R. 1954 S.C. 92 (India); Devidas Ramachandra Tuljapurkar v. State of Maharashtra, (2015) 6 SCC 1 (India).
54
K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 (India); see also Shameek Sen, Right to Free Speech and
Censorship: A Jurisprudential Analysis, J. Ind. L. Inst. 175,177 (2014).
55
Supra note 45, Joseph Shine; see also Suresh Kumar Koushal v. Naz Found., (2014) 1 SCC 1 (India); Bose &
Bhattacharyya, The Phobic and the Erotic: The Politics of Sexualities in Contemporary India 29 (2007).
56
Dudgeon v. U.K., [1982] 4 E.H.R.R. 149; see also Norris v. Ireland, [1988] 13 E.H.R.R. 186.
57
Jarnail Singh v. State of Raj., 1971 SCC OnLine Raj 76 (India); see also Mahmood Farooqui v. State (Gov't. of
N.C.T. of Delhi), 2017 SCC OnLine Del 6378 (India); Shraddha Chaudhary, Reconceptualizing Rape in Law
Reform, 13 Soc. Leg. Rev. 156, 165-167 (2017); Srijita Jana, Degrees of Consent in Rape: The Dichotomy
Between “Yes” or “No”: Does ‘No’ Mean ‘Yes’, 2 S.C.C. Crim. L. J. 16, 16-18 (2018).
58
Supra note 51 art. 19, cl. 1(a).
59
Cellular Operators Ass'n of India v. T.R.A.I., (2016) 7 SCC 703 (India); see also N.K. Bajpai v. Union of India,
(2012) 4 SCC 653 (India); Ramji Lal Modi v. State of Uttar Pradesh, A.I.R. 1957 S.C. 620 (India); D.J. de, The
Constitution of India 850 (3rd ed. 2008).
60
V.G. Row v. State of Madras, A.I.R. 1952 S.C. 196 (India); see also O.K. Ghosh v. E.X. Joseph, A.I.R. 1963
S.C. 812 (India).
61
India Const. pmbl.
62
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.; see also State (NCT of Delhi) v. Union of India, (2018)
8 SCC 501 (India); Latika Vashist, Re-Thinking Criminalizable Harm in India: Constitutional Morality as a
Restraint on Criminalization, 55 J. Ind. L. Inst. 77, 93 (2013); Constitutional Assembly Debates 38 (New Delhi-
Jaico Art India ed. 2003).
29
[ ¶ 37 ] Further, the term ‘morality’ under Art. 19(2) must be construed as ‘constitutional
morality’ 63 and not ‘sexual morality’ 64 or ‘public morality. 65 Any archaic law that does not
square with constitutional morality is unreasonable and manifestly arbitrary. 66

[ ¶ 38 ] Hence, it is submitted that Exception 2 which provides a legal sanction to the

husband to rape his wife, within marriage was enforced to protect the Victorian notions of
sexual morality67 which considered a wife as a chattel of her husband, and subsequently, the
wife could not revoke her consent to sexual intercourse. 68 Hence, the restriction is inconsistent
with the principles of free consent and thus not covered by the grounds of morality under Art.
19(2).

[ ¶ 39 ] In conclusion, the Petitioner humbly submits that Exception 2 which restricts 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).

III. Exception 2 to § 375 of the Sindhu Desh Penal Court violates Art. 21 of the
Constitution.

[ ¶ 40 ] It is submitted that Art. 21 of the Indian Constitution guarantees the fundamental

right to life and liberty. 69 It is contended that Exception 2 violates Art. 21 and deprives married
women of their right to life and personal liberty because Exception 2 violates the right to
privacy of married women.

[ ¶ 41 ] The right to privacy is a fundamental right, 70 emanating from the right to life and
personal liberty guaranteed under Art. 21 of the Indian constitution. 71 The fundamental right
to privacy guarantees an individual the right to retain the integrity of the body, 72 which

63
Indian Young Lawyers Ass'n v. State of Kerala, 2018 SCC OnLine SC 1690 (India); see also Naz Found. v.
Gov't of N.C.T. of Delhi, 2009 SCC OnLine Del 1762 (India).
64
Shreya Singhal v. Union of India, (2015) 5 SCC 1 (India).
65
Indian Young Lawyers Ass'n, supra note 63; see also Constitutional Assembly Debates, supra note 62.
66
Joseph Shine, supra note 45; see also Richard M. Nixon v. Adm'r of General Serv., 433 U.S. 425 (1977).
67
Elizabeth Pleck, Criminal Approaches to Family Violence 1640- 1980, 11 Crim. & Just. L.J. 50, 77 (1989); see
also Margot Finn, Women, Consumption and Coverture in England, 1760-1860, 39 Hist. J. 703, 722 (1996).
68
R v. Clarence, [1888] 22 Q.B.D. 23.
69
Francis Coralie Mullin v. Adm'r Union Territory of Delhi, (1981) 1 SCC 608 (India).
70
Kharak Singh v. State of Uttar Pradesh, (1964) 1 SCR 332 (India); see also Gobind v. State of Madhya Pradesh,
(1975) 2 SCC 148 (India); R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632 (India).
71
Sharda v. Dharampal, (2003) 4 SCC 493 (India); see also P.U.C.L. v. Union of India, (1997) 1 SCC 301 (India).
72
Pramati Educ. & Cultural Trust v. Union of India, (2014) 8 SCC 1 (India); see also Marimuthu v. Inspector of
Police, 2016 SCC OnLine Mad 10175 (India).
30
encompasses an individual's inalienable right to preserve his private space 73 and be free from
physical interference. 74 Further, it encompasses the right to self-determination 75 which
includes the right to sexual self-determination and sexual autonomy which is the freedom to
choose sexual activities.76

[ ¶ 42 ] A person can surrender his/her autonomy wilfully to another individual 77 and their
intimacy is a matter of their choice. 78 It is an individual's inalienable right to choose their sexual
partner and the autonomy to decide freely when and under what circumstances, he/she wishes
to engage in sexual activity. 79

[ ¶ 43 ] Besides this, Exception 2 makes no allowance for the circumstances in which a wife
may say “no” to sex. For example, a wife may refuse to engage in sexual activity with her
husband when she is ill or is menstruating or is unable to engage in sexual activity because of
a sick child.

[ ¶ 44 ] The Petitioner contends that the heinous crime of rape, whether it happens to take
place, within or outside marriage, 80 is an ultimate invasion and violation of a women's bodily
integrity and her sexual autonomy. 81Further, Exception 2 gives legal protection to the husband
to subject his wife to non-consensual 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.

[ ¶ 45 ] Hence, it is submitted that Exception 2 violates married women's fundamental right

to bodily integrity and sexual autonomy which are protected under Art. 21 of the Constitution.

73
Common Cause v. Union of India, (2018) 5 SCC 1 (India); see also State of Maharashtra v. Madhukar Narayan
Mardikar, (1999) 1 SCC 57 (India); Prahlad v. State of Haryana, (2015) 8 SCC 688 (India); Aarushi Dhasmana v.
Union of India, (2013) 9 SCC 475 (India).
74
Jonathan Herringjesee Wall, The nature and significance of the right to bodily integrity, 76 Cambridge L. J.
566, 588 (2017).
75
Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454 (India); see also Shampa Singha v. State
of West Bengal, 2019 SCC OnLine Cal 153 (India).
76
Joseph Shine, supra note 45; see also Santhini v. Vijaya Venketesh, (2018) 1 SCC 1 (India); Chairman of Ry.
Bd. v. Chandrima Das, (2000) 2 SCC 465 (India).
77
Navtej, supra note 39; see also Sakshi v. Union of India, (2004) 5 SCC 518 (India).
78
Navtej, supra note 39; see also Jonathan Herring, Rape & The Definiation of Consent, 26 N.L.S.I. Rev. 62, 65-
67 (2014); K. Alexa Koeing, The Jurisprudence of Sexual Violence, 7 Hum. Rts. Cent. U. Calif. 76, 81 (2011).
79
Joseph Shine, supra note 45.
80
Mohd. Iqbal v. State of Jharkhand, (2013) 14 SCC 481 (India); see also Sudhesh Jhaku v. K.C.J., 1996 SCC
OnLine Del 397 (India); Indu Devi v. State of Bihar, (2017) 14 SCC 525 (India).
81
State of Madhya Pradesh v. Madan Lal, (2015) 7 SCC 681 (India); see also X v. State of N.C.T. of Delhi, 2008
SCC OnLine Del 104 (India); State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 (India).
31
ISSUE B(II) WHETHER FORCEFUL INTERCOURSE BY A MAN WITH HIS WIFE
AGAINST HER WILL AND/OR WITHOUT HER CONSENT CAN BE
CRIMINALIZED AS CONSTITUTING ‘RAPE’ UNDER PROVISIONS OF § 375 OF
THE PENAL CODE?

[ ¶ 46 ] It is humbly submitted before the Hon’ble Court that forceful intercourse by a man
with his wife against her will and/or without her consent can be criminalized as constituting
‘rape’ under provisions of § 375 of the Penal Code. In this argument, it is submitted that
Exception 2 to § 375 is an archaic law based on outdated ideas of marriage which do not square
with Constitutional morality, would become manifestly arbitrary, having lost its rationale and
being utterly irrational and capricious. Further, it is submitted that there is a gross misuse of
this law, and the way misuse of the law needs to be dealt with is an aspect which would require
the intervention of the legislature.

I. Exception 2 to § 375 is an archaic law and is based on outdated ideas of marriage.

[ ¶ 47 ] It is humbly submitted that Exception 2 to § 375 of the penal Court should be

criminalised because: A) Exception 2 is based on outdated ideas of marriage. B) Exception 2
is an archaic law.

A. It is based on outdated ideas of marriage.

[ ¶ 48 ] It was held by the Supreme Court in the Joseph Shine case that a law based on the
Victorian Model which treats women as chattel and exclusive sexual possession of a husband
is manifestly arbitrary.82 Exception 2 is based on the relics of ‘Victorian morality83 and on an
extravagant statement made by a British Jurist Sir Mathew Hale which maintained that by
marriage, a wife submits herself irrevocably to the sexual demands of her husband in all
circumstances. 84 It is submitted that the object of marital rape exemption was to allow her
husband to exercise control over her sexuality. 85

[ ¶ 49 ] Further, it is submitted that Exception 2 which provides for immunity from marital
rape stems out of an archaic and outdated notion of marriage which considers wives as equal

82
Joseph Shine, supra note 45.
83
Jill Elain Hasday, Consent and Contest: A Legal History of Marital Rape, 88 Calif. L. Rev. 1373, 1375 (2000).
84
H.M. Advocate v. Duffy, (1983) S.C.(J.) 3 (Scotland); see also H.M. Advocate v. Paxton, (1984) S.C.(J.) 105
(Scotland).
85
Richard J. Gelles, Power, Sex and Violence: The Case of Marital Rape, 4 Fam. L. J. 26, 342 (1977).
32
to the chattel and property of their husbands. 86 Further, it was believed that a husband was no
more capable of raping his wife likewise an owner is incapable of stealing his property. 87

[ ¶ 50 ] Moreover, it is submitted that a man's marital ‘entitlement’ to her exclusive sexual

possession may be reflective of the antiquated social and sexual mores of the nineteenth
century, but they are not in conformity with constitutional morality. 88 The common law rule of
marital rape exemption is an absurd, anachronistic, and offensive fiction. 89

[ ¶ 51 ] Hence, is submitted that Exception 2 is based on the outdated ideas of marriage

which consider women as chattel and exclusive sexual possession of their husband and thus
stands manifestly arbitrary.

B. Exception 2 is an archaic law.

[ ¶ 52 ] It has been observed in multiple precedents that an archaic and outdated law which
does not square with constitutional morality, would become manifestly arbitrary, having lost
its rationale and being utterly irrational and capricious.90

[ ¶ 53 ] It is submitted that marriage in modern times is regarded as a partnership of equals,

and no longer one in which the wife must be the subservient chattel of the husband. 91 The status
of women and marriage has changed for all purposes. A wife is not obligated to satisfy
excessive sexual demands on the part of her husband. 92

[ ¶ 54 ] Furthermore, marriage in a constitutional regime is founded on the principles of

equality between spouses. Each of them is entitled to the same liberty that Part III guarantees
and on the essential values on which the Constitution is founded-liberty, equality and dignity. 93
Further, each one of them is entitled to take decisions in accordance with his or her conscience

86
Justice J.S. Verma (Retd.), Report of the Comm. on Amendments to Criminal Law, (June 20, 2022, 04:45 AM),
htps//www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.p
df.
87
Charlotte L. Mitra, For She Has No Right or Power to Refuse Her Consent, 32 Crim. L. Rev. 558, 560 (1979).
88
Joseph Shine, supra note 45.
89
R. v. R, [1991] U.K.H.L. 12.
90
State of Uttar Pradesh. v. Ramdev Singh, (2004) 1 SCC 421 (India); see also Mukesh v. State (NCT of Delhi),
(2017) 6 SCC 1 (India); Shankar Kisanrao Kdahe v. State of Maharashtra, (2013) 5 SCC 546 (India).
91
Supra note 89; see also Philip N. S. Rumney, When Rape Isn't Rape : Court of Appeal Sentencing Practice in
Cases of Marital and Relationship Rape, 19 Oxford J. Legal Stud. 243, 255 (1999).
92
Id.
93
Supra note 61.
33
and one must have the ability to pursue the human desire for fulfilment. 94

[ ¶ 55 ] Hence, it is submitted that Exception 2 which is based on the archaic notion of

marriage treating a woman as a chattel and exclusive sexual possession of her husband does
not square with constitutional norms and therefore is liable to be struck down.

II. Exception 2 to § 375 of the Penal Code is manifestly arbitrary as it sought to

decriminalize a crime as heinous as rape.

[ ¶ 56 ] It is humbly submitted before the Hon’ble Court that defending an offence as grave
and heinous as rape is untenable. There is a gross misuse of this law and How misuse of the
law needs to be dealt with is an aspect which would require the intervention of the legislature.95

[ ¶ 57 ] Further, it is contended that it is a moral right of a woman to refuse unwanted,

forcible sexual intercourse. This case is about respecting the right of a wife to say “no” to
sexual intercourse and recognizing that marriage is no longer a universal license to ignore
consent. Substantive equality is dependent on the recognition of historical wrongs and
discovering remedies for curing the wrong. 96 The right of a wife to say “yes” to sexual
intercourse includes the corollary i.e. the right to say “no”. 97

[ ¶ 58 ] Exception 2 allows a husband to exercise, with impunity his right of non-consensual

or undesirable sexual intercourse with his wife, even without her consent.98 Further, a wife is
deemed to have irrevocably consented99 at the time of the marriage to have sexual intercourse
with her husband at his whim. 100

[ ¶ 59 ] The Petitioner further contends that Exception 2 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. Consecutively, it

94
Supra note 45.
95
Sushil Kumar Sharma v. Union Of India, AIR 2005 SC 3100.
96
S. Sushma v. Commissioner of Police, 2021 SCC OnLine Mad 2096.
97
Indian Young Lawyers Assn. (Sabarimala Temple-5J.) v. State of Kerala, (2019) 11 SCC 1.
98
Saurabh Mishra & Sarvesh Singh, Marital Rape-Myth, Reality and Need for Criminalization, 12 Web. L. J. 22,
24-27 (2003); see also Dr. G. K. Goswami Siddhartha, ‘No’ to Marital Rape Exemption in Indian Law : Stepping
Stone to Gender Justice, 7 J. Law & Tech 77, 78 (2018); Dr. Nico & P. Swartz, Is a Husband Criminally Liable
for Raping his Wife? A Comparative Analysis, 3 Int'L J. Acad. Research. and Reflection 71, 72 (2015).
99
Masroor Ahmed v. State (NCT of Delhi), 2007 SCC OnLine Del 1357 (India); Raveena Rao Kallakuru &
Pradyumna Soni, Criminalisation of Marital Rape in India: Understanding its Constitutional, Cultural and Legal
Impact, 11 N.U.J.S. L. Rev. 121, 126 (2018).
100
M. Foucault, To Have and to Hold: The Marital Rape Exemption and the Fourteenth Amendment, 99 Harv. L.
Rev. 1255, 1267-1269 (1986).
34
is submitted that until marital rape is declared explicitly to be an offence, it will continue to be
condoned.

III. Exception 2 violates the Right to Health of married women.

[ ¶ 60 ] It is contended that the Right to Health is a Fundamental Right under Art. 21. 101 It
includes one's inalienable right to have the freedom to protect their sexual and reproductive
health and this freedom remains vested in all women irrespective of their marital status. 102

[ ¶ 61 ] Further, it is submitted that the Right to Health is also recognized by the ICESC103
and ICCPR104 which requires the states to take measures to protect and fulfil the health of all
persons and reduce women's health risks by protecting women from sexual violence.
105
Furthermore, the UDHR also recognizes the Right to Health and security which
encompasses the criminal prohibition of spousal rape.

[ ¶ 62 ] Moreover, the Petitioner contends that the heinous crime of rape causes grave mental
as well as physical injury to a woman106 and Exception 2 which does not criminalize marital
rape that happens within the marital bond clearly violates the Right to Health of married
women, who are subjected to grave mental and physical injury by their husbands.

[ ¶ 63 ] Hence, it is humbly submitted that forceful intercourse by a man with his wife
against her will and/or without her consent can be criminalized as constituting ‘rape’ under
provisions of § 375 of the Penal Code.

101
Ashwani Kumar v. Union of India, (2019) 2 SCC 636 (India); see also State of Punjab v. Mohinder Singh
Chawla, (1997) 2 SCC 83 (India); Nagar Nigam v. A.L. Faheem Meat Exports (Pvt.) Ltd., (2006) 13 SCC 382
(India); Occupational Health & Safety Ass'n v. Union of India, (2014) 3 SCC 547 (India).
102
Nimeshbhai Bharatbhai Desai v. State of Gujarat, 2018 SCC OnLine Guj 732 (India).
103
International Covenant on Economic, Social and Cultural Rights art. 10, July 7, 1979, U.N.T.S. 993.
104
International Covenant on Civil and Political Rights art. 21, Dec. 16, 1966, 999 U.N.T.S. 177.
105
G.A. Res. 217 (III) A, Universal Declaration of Human Rights, art. 25 (Dec. 10, 1948).
106
State of Madhya Pradesh v. Bablu Nath, (2009) 2 SCC 272 (India).
35
ISSUE C: WHETHER THE OFFENCE OF RAPE UNDER § 375 OF THE SINDHU
DESH PENAL CODE IS REQUIRED TO BE MADE GENDER-NEUTRAL?

[ ¶ 64 ] It is humbly contended before the Hon’ble Supreme Court of Sindhu Desh that the
offence of Rape under § 375 of the Sindhu Desh Penal Code is not required to be made gender
neutral. It is further submitted that: (I) Art. 15 of the Constitution mandates positive
discrimination in favour of women. (II) The issue at hand lies beyond the jurisdiction of the
Court.

IV. Art. 15(3) of the Constitution mandates positive discrimination in favour of

women.

[ ¶ 65 ] Art. 15(3)107 enacts that nothing in Art. 15 shall prevent the State from making any
special provision for women and children. The reading of clauses (1), (2) and (3) of Art. 15
together follows that while discrimination on the basis of sex is impermissible, special
provisions for women and children are valid and permissible. It is hence submitted that § 375
of the Sindhu Desh Penal Code is one such provision which is protected under this clause
because: A) Several provisions made under Art. 15(3) for the safeguard of women only. B) §
375 comes under the ambit of Clause 3.

A. Several provisions made under Art. 15(3) for the safeguard of women only.

[ ¶ 66 ] It is submitted that § 375 of the Sindhu Desh Penal Code defines the offence of
Rape. The said provision identifies the man as the perpetrator of the crime and the woman as
the victim. Now, Art. 15108 of the Constitution mandates positive discrimination in favour of
women and, therefore, there are several statutes and provisions, which include § 375, 109 which
carry this ethos forward.

[ ¶ 67 ] It is not possible to exhaust the laws which make special provisions for women or
children. Only some of them are cited as instances: §s 354, 497 of Indian Penal Code; § 10 of
Divorce Act (IV of 1869); Guardians and Wards Act; Prohibition of Child Marriage Act, 2006;
Child Labour (Prohibition and Regulation) Act, 1986; Reformatory Schools Act 1897; The
Protection of Women from Domestic Violence Act, 2005; The Sexual Harassment of Women

107
Supra note 51 art. 15(3), cl.3.
108
Id.
109
Supra note 38.
36
at Workplace Act, 2013; Immoral Traffic (Prevention) Act, 1956; Dowry Prohibition Act,
1961; Indecent Representation of Women (Prohibition) Act, 1986: Commission of Sati
(Prevention) Act, 1987.

[ ¶ 68 ] Further, in the case of Yusuf Abdul Aziz v. State of Bombay,110 the Supreme Court
has held that the language of clause (3) is in absolute terms and does not appear to restrict in
any way the nature or ambit of special provisions which the State may make for women or
children or both. The Court further noted that special provisions referred to in clause (3) need
not be restricted to measures which are beneficial in the strict sense.

[ ¶ 69 ] In Shahdad v. Mohd. Abdullah Mir, the Court held § 354 of IPC111 to be valid112
under clause 3 because it protects the modesty only of women. 113 Moreover, since this is a
special provision, it has to prevail if there is any conflict between it and the general provision
in Art. 14.114 This was the view of the Supreme Court in the above-mentioned case.

[ ¶ 70 ] It is submitted that in Thamsi Goundan v. Kanni Ammal, the Court held that § 488
(now 125) CrPC115 is valid although it obliges the husband to maintain his wife and not vice
versa. 116 Similarly, in Thota Sesharathamma v. Thota Manikyamma, § 14 HSA,117 converting
the women’s limited ownership of the property to full ownership has been found valid 118 under
clause 3.119 The Court further noted that the object of Art. 15(3) is to strengthen and improve
the statute of women and the inserting of Art. 15(3) is a recognition of the fact that for centuries,
women of India have been socially and economically handicapped. 120

[ ¶ 71 ] In Govt. of A.P. v. P.B. Vijayakumar,121 the Court held that women are historically
and otherwise a weaker § of the society for whose upliftment Art. 15(3) is made, which should
be given the widest possible interpretation and application.

[ ¶ 72 ] In a Bombay case, Court held that the joint operation of Art. 15(1) and 15(3) mean

110
Yusuf Abdul Aziz v. State of Bombay, AIR 1954 SC 321.
111
Supra note 26.
112
Girdhar Gopal v. State, AIR 1953 Madhya Bharat 147.
113
Shahdad v. Mohd. Abdullah Mir, AIR 1967 J&K 120.
114
Supra note 51 art. 14.
115
The Code of Criminal Procedure, 1973 § 125.
116
Thamsi Goundan v. Kanni Ammal, AIR 1952 Mad 529.
117
Hindu Succession Act, 1956 § 14.
118
See C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil, AIR 1996 SC 1697.
119
Thota Sesharathamma v. Thota Manikyamma, (1991) 4 SCC 312.
120
Id.
121
Govt. of A.P. v. P.B. Vijayakumar, AIR 1995 SC 1648.
37
that the State could discriminate in favour of women against men, but it could not discriminate
against women. 122 The intention clearly was to protect the interest of women and children
which according to the framers of the Constitution required protection.

[ ¶ 73 ] Hence, it is submitted that this gave a clear and coherent interpretation of Art. 15(1)
and 15(3), because a provision discriminating in favour of women would necessarily
discriminate against men and would therefore constitute an exception to the prohibition of
discrimination on the ground of sex contained in Art. 15(1). 123

B. § 375 of IPC comes under the ambit of Clause 3.

[ ¶ 74 ] It is submitted that clause(3) would also justify the regulation or limiting of working
hours for women employees124 even though such regulation was “not necessary for men”. The
reason is that— a woman’s physical places her at a disadvantage in the struggle for subsistence
and her physical well-being becomes an object of public interest and care to preserve the vigour
of the race. The Court has observed that special treatment of women may also be justifiable
on account of the peculiar social position of women in India. 125

[ ¶ 75 ] It was held that the special treatment that is permissible under clause (3) of Art. 15
must be relatable to some feature or disability which is peculiar to women so as to differentiate
126
them from men as a class. In framing Art. 15(3), the makers of our Constitution were
inspired by American decisions such as Muller v. Oregon.127 The American Supreme Court in
Muller v Oregon; the difference between the two sexes in the structure of the body, in the
amount of physical strength, such discrimination in favour of women on such grounds exists,
more or less, in all civilised countries of the world, and is sanctioned by Art. 10.3 of the U.N.
Declaration on Elimination of Discrimination Against Women, 1967. 128

[ ¶ 76 ] § 375 is made to protect women as rape has been one of the means through which
the social hierarchy of power relationships is maintained and nurtured in a gendered society. 129

122
Dattatraya Mottiram v. State of Bombay, AIR 1953 Bom 311; see also Sowmithri Vishnu v UOI, AIR 1985
SC 1618.
123
Mahadeb Jiew v. B.B. Sen, AIR 1951 Calcutta 563; see also Anjali v. State of WB, AIR 1952 Cal 825.
124
Gayle v. Browder, (1956) 352 US 903.
125
Cf. Marsh v. Alabama, (1946) 326 US 501; see also Burton v. Wilmington Authority, (1961) 365 US 715.
126
See Indra Sawhney v. UOI, AIR 1993 SC 477.
127
Muller v Oregon, (1908) 208 US 412.
128
UN General Assembly, Convention on the Elimination of All Forms of Discrimination against Women,
A/RES/34/180 (18 December 1979) https://www.refworld.org/docid/3b00f2244.html.
129
Susan Brownmiller, Against Our Will - Men, Women and Rape (1975).
38
In the case of Deepak Gulati v. State of Haryana,130 the Court held that the offence of Rape
tantamounts to a serious blow to the supreme honour of a woman and offends both her dignity
and honour.

[ ¶ 77 ] It is contended that § 375 was framed keeping in mind the difference between the
two sexes in the structure of the body, the amount of physical strength and the social position
of women in India.

[ ¶ 78 ] Now in the case at hand, it is submitted that a gender-neutral rape law would open
up avenues for inflicting even greater trauma and humiliation to women, an already
marginalised section and hence defeat the very purpose of the law. This premise cannot be
introduced on the pretext of safeguarding the rights of other marginalised segments like the
LGBTQ+ community. Hence, § 375 is well covered under the ambit of Art. 15(3) and need not
be made gender neutral.

V. The issue at hand lies beyond the jurisdiction of the Court.

[ ¶ 79 ] There is no such power vested in the High Court under Art. 226 131 to issue an
advisory opinion to the legislature either of the Centre or the State. This power is beyond the
scope of the Court's power of judicial review available under Art. 226 of the Constitution or
even to the Supreme Court under Art. 141132 of the Constitution.

[ ¶ 80 ] The Supreme Court has observed, owing to a change in the lifestyle of men and
women in Indian society, a day may come that the presumption that in cases of adultery it is
the man who is the usual aggressor may cease to be true, but even then, it is the Legislature
which is to undertake legislation to suitably amend § 497, Indian Penal Code, 1860; it is not
open to the Court to do so. 133 Applying the same precedent to § 375, separation of power gives
the right to amendment to the Legislature.

[ ¶ 81 ] In Raja Ram Pal case,134 the Supreme Court noted that the motive of the Legislature
in enacting a particular statute was beyond the scrutiny of the Courts.

130
Deepak Gulati v. State of Haryana, AIR 2013 SC 2071.
131
Supra note 51.
132
Id. art. 141.
133
Jagdih Lal & Ors. v. State of Haryana & Ors., AIR 1997 SC 2366.
134
Raja Ram Pal v. The Hon’ble Speaker, Loksabha, (2007) 3 SCC 184.
39
[ ¶ 82 ] Further, the judgment in Sunil Batra v. Delhi Administration & Ors.,135 was relied
upon by the intervenors to emphasize the observations which, in effect, conveyed that if certain
provisions of law construed in one way would be consistent with the Constitution and, if
another interpretation is placed, which would render them unconstitutional, the Court would
lean in favour of the former construction.

[ ¶ 83 ] In Pathumma v. State of Kerala,136 the Court held that the Court would interfere
only when the statute clearly violates the rights of the citizens provided under Part III of the
Constitution or where the Act is beyond the legislative competence or such similar grounds.

[ ¶ 84 ] In the present case, the grant of such relief would invariably result in the creation of
a new class of offence, which is outside the boundaries Court’s jurisdiction. It would also
infringe the doctrine of separation of powers.

[ ¶ 85 ] Hence, it is submitted that the Legislature has acted within its boundaries
empowered by Clause 3 of Art. 15, and no judicial interference therewith would be justified.
The distinction carved out by the legislature in labelling and treatment of spousal sexual
violence, is grounded in safeguarding women, and is both reasonable and based on intelligible
differentia, which satisfies Articles 14, 15, 19 and 21 of the Constitution.

[ ¶ 86 ] It is humbly submitted that the invitation to make the provision gender-neutral if

accepted by the Court, would be tantamount to stepping into the shoes of the Legislature which
is best avoided.

135
Sunil Batra v. Delhi Administration & Ors, (1978) 4 SCC 49461.
136
Pathumma v. State of Kerala, (1978) 2 SCC 1.
40
PRAYER FOR RELIEF

Wherefore, in the light of the facts of the case, issues raised, arguments advanced, and
authorities cited, may this Hon’ble Supreme Court be pleased to hold, adjudge, and
declare that:

A. THE SPECIAL LEAVE PETITION FILED UNDER ARTICLE 136 OF THE

CONSTITUTION OF SINDHU DESH IS NOT PROPER AND/OR VALID SINCE
THE STATE IS UNDER AN OBLIGATION TO TREAT MEN AND WOMEN
EQUALLY.

B. EXCEPTION 2 OF § 375 OF THE SINDHU DESH PENAL CODE IS VIOLATIVE

OF ARTICLES 14, 19 AND 21 OF THE CONSTITUTION.

C. FORCEFUL INTERCOURSE BY A MAN WITH HIS WIFE AGAINST HER WILL

AND/OR WITHOUT HER CONSENT CAN BE CRIMINALIZED AS
CONSTITUTING RAPE UNDER PROVISION OF § 375 OF THE PENAL CODE.

D. THE OFFENCE OF RAPE UNDER § 375 OF THE SINDHU DESH PENAL CODE
IS NOT REQUIRED TO BE MADE GENDER-NEUTRAL.

And/or pass any other order that it may deem fit in the interest of justice, equity, and
good conscience.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

COUNSEL FOR RESPONDENT

41