TC-44

RGNUL INTRA MOOT COURT COMPETITION 2019

BEFORE THE
HONORABLE DHILLIKA HIGH COURT

CRIMINAL APPEALLATE JURISDICTION

In the matter of:

STATE & ANR.

(APPELLANT)
V.
KUKOO
(RESPONDENT)

CASE PERTAINING
TO

THE VIOLATION OF THE FUNDAMENTAL RIGHT TO DIGNITY UNDER ART. 21

AND CONVICTION UNDER THE PROVISIONS OF RAPE AND UNNATURAL
OFFENCES, S. 376 & 376 READ WITH S. 90 OF THE HPC,1860.

COUNSEL APPEARING ON BEHALF OF APPELLANT(S)

MEMORIAL ON BEHALF OF THE APPELLANT(S)

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TABLE OF CONTENTS

TABLE OF CONTENTS ____________________________________________________ I

LIST OF ABBREVIATIONS _______________________________________________ II

INDEX OF AUTHORITIES _______________________________________________ III

STATEMENT OF JURISDICTION _________________________________________ IV

STATEMENT OF FACTS __________________________________________________ V

ISSUES RAISED_________________________________________________________ VII

SUMMARY OF ARGUMENTS ___________________________________________ VIII

ARGUMENTS ADVANCED_________________________________________________ 1

1. THAT THE GENDER OF KUKOO SHOULD BE DETERMINED ON THE BASIS OF BIOLOGICAL

TEST. ___________________________________________________________________ 1
1.1. Kukoo is biologically a male _________________________________________ 1
1.2. Kukoo did not register gender change in official government records _________ 2
1.3. Giving choice of self-determination of gender is not rational ________________ 2
1.4. The Transgender Persons (Protection of Rights) Bill, 2018 is yet to be passed by
the Parliament. _________________________________________________________ 3
2. THAT KUKOO’S CONSTITUTIONAL RIGHT TO DIGNITY IS VIOLATED DUE TO

CONDUCTING OF THE BIOLOGICAL TEST. ______________________________________ 3

2.1. That Kukoo never informed about the Sex Reassignment Surgery to the Inspector 3
2.2. That Conducting Corbett Test/Biological test is right, just and fair. ___________ 4
3. THE APPELLANT IS NOT GUILTY OF THE OFFENCE OF ‘RAPE’ UNDER SECTION 376 OF
THE HIND PENAL CODE. ____________________________________________________ 6

4. THAT THE APPELLANTS NOT GUILTY OF THE OFFENSE UNDER SECTION 377, HPC. 11
4.1. Both Ganesh and Kukoo are adults engaging in intercourse with free consent. _ 11
4.2. Carnal intercourse between two consenting adults is no longer the penal offense.
13

PRAYER ________________________________________________________________ X

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LIST OF ABBREVIATIONS

ABBREVIATIONS EXPANSIONS

HPC Hind Penal Code, 1860

& And
No. Number
Cr.P.C. Code of Criminal Procedure,
1973
S. Section
Art Article
Prop. Proposition
Para. Paragraph
Anr. Another
Hon’ble Honorable
Etc. Etcetera
H.C. High Court
Ltd. limited
AIR All India Reporter
Retd. Retired
Govt. Government
Pvt. Private
SCC Supreme Court Cases
UOI Union of India
v. Versus
u/s Under Section
C.P.C. Code of Civil Procedure, 1908
FIR First Information Report
Ors. Others
DNA Deoxyribonucleic Acid
SRS Sex Reassignment Surgery
w.r.t With Respect To

Art. Article

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INDEX OF AUTHORITIES

CASES

Deelip Singh v. State of Bihar, (2005) 1 SCC 88 ----------------------------------------------------18

Deepak Gulati v. State of Haryana, (2013) 7 SCC 675 ---------------------------------------------18
Director General, Directorate General of Doordarshan v. Anand Patwardhan, AIR 2006 SC
3346 -----------------------------------------------------------------------------------------------------16
Dr. Dhruvaram Murlidhar Sonar v. State of Maharastra, 2018 SCC OnLine Bom 8419 ------19
Kartar Singh v. State of Punjab, (1994) 3 SCC 569 -------------------------------------------------15
Lata Singh v. State of U.P., (2006) 5 SCC 475 ------------------------------------------------------18
Maneka Gandhi v. Union of India, AIR 1978 SC 597. ---------------------------------------------15
Navtej Singh Johar v. Union of India, AIR 2018 SC 4321. ----------------------------------- 14, 20
Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180 -------------------------------15
Pathumma v. State of Kerela, AIR 1978 SC 771 ----------------------------------------------------16
Payal Sharma v. Suprintendent, Nari Niketan Kalindri Vihar, AIR 2001 AII 254 -------------17
S. Khushboo v. Kanniammal, (2010) 5 SCC 600----------------------------------------------------18
Semayne's case, 5 Co Rep 91a : 77 ER 194, p. 195 (KB 1604) -----------------------------------20
State of Madras v. V.G. Row, AIR 1952 SC 196 ----------------------------------------------------15
State of U.P. v. Naushad, (2013) 16 SCC 651 -------------------------------------------------------19
Uday v. State of Karnataka, (2003) 4 SCC 46 -------------------------------------------------------19

STATUTES

Art. 15 of the Indian Constitution ----------------------------------------------------------------------13

BOOKS AND COMMENTARIES

American Psychological Association, "Answers to Your Questions for a Better

Understanding of Sexual Orientation & Homosexuality," 2008 --------------------------------16
Hari Nef (2008), https://www.who.int/genomics/gender/en/index1.html (last visited Jul 31,
2019) ----------------------------------------------------------------------------------------------------14
Marilyn Stowe (2016), http://www.isna.org/faq/what_is_intersex/ (last visited Jul 31, 2019).
------------------------------------------------------------------------------------------------------------14

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STATEMENT OF JURISDICTION

APPELLANT(S) invoke the jurisdiction of Hon’ble Dhillika High Court of Hind in this matter
under Article 227 of the Constitution of the Republic of Hind.

The Hon’ble Dhillika High Court enjoys the right to preside over this matter by virtue of
Section 372, Chapter XXIX of the Code of Criminal Procedure, 1973 of the Constitution of the
Republic of Hind.

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STATEMENT OF FACTS

Kukoo ( hereafter referred to as ‘the prosecutrix’ ) is a 24-year-old doctor employed at Ram

Manohar Lohia Hospital in Dhillika , Hind. Born as an intersex person , she underwent a Sex
Reassignment Surgery three years back to change her sex to female , but could not register the
change in Government records due to time constraints and exigencies of her professional life.

Ganesh Gaitonde ( hereafter referred to as ‘the appellant’ ) is a 26-year-old male nurse who
also works at Ram Manohar Lohia Hospital.

II

March, 2017 : ‘The prosecutrix’ met ‘the appellant’ and they were attracted towards each
other .

III

April, 2017 : The prosecutrix and the appellant started living-in together at an apartment rented
by the latter. They often indulged in sexual and carnal intercourse and the appellant promised
to marry the prosecutrix eventually.

IV

December 17th, 2018 : The Lower House of Republic of Hind passed the ‘Transgender Persons
(Protection of Rights) Bill, 2018 but it is still pending before the Upper House of the Republic
of Hind.

February 14th, 2019 : The prosecutrix had engaged in an intercourse with a male colleague of
her Dr. Parulkar and this was eventually discovered by the appellant.

VI

April 2nd, 2019 : The prosecutrix stormed out of the appellants apartment threatening to never
return again.

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VII

April 17th 2019 : The prosecutrix with her brother Kaleen Bhaiya ( hereafter referred to as ‘the
informant’ ) went to the Tuglaq Road Police Station to register an FIR against the appellant.
‘The Informant’ narrated the complete chain of events to the officer on duty, Inspector Sartaj
Singh.

VIII

Inspector Sartaj Singh refused to register a case under S. 376 of the Hind Penal Code and
informed them that the prosecutrix has to undergo a Corbett Test to ascertain her gender as she
was born an intersex person. The DNA test revealed that the prosecutrix had XY chromosomes
and consequently Sartaj Singh filed a charge sheet under S. 377 of the HPC.

IX

At the trial, before the Sessions Court, the appellant maintained that the consent for intercourse
was not obtained on the promise of the marriage. The prosecutrix pleaded that since she had
already undergone a Sex Reassignment Surgery, charges under Section 376 must sustain.

Based on evidence at trial, the Sessions Court found that the charge under Section 376 cannot
be sustained since the Biological test had revealed that prosecutrix is a male and the charge
under Section 377 has been proven and thus the appellant is sentenced to five years
imprisonment.

XI

Gaitonde filed an appeal in the Dhillika High Court challenging his conviction. Subsequently,
Kukoo also filed a cross-appeal in her individual capacity against the acquittal under Section
376 and against the quantum of sentence.

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ISSUES RAISED

ISSUE 1:
WHETHER THE GENDER OF KUKOO SHOULD BE DETERMINED ON THE BASIS
OF A SELF PERCEIVED GENDER IDENTITY OR BIOLOGICAL TEST ?

ISSUE 2:
WHETHER KUKOO’S CONSTITUTIONAL RIGHT TO DIGNITY WAS VIOLATED
DUE TO THE CONDUCTING OF THE BIOLOGICAL TEST OR NOT ?

ISSUE 3:
WHETHER THE APPELLANT IS GUILTY OF THE OFFENCE UNDER SECTION 376,
HPC OR NOT ?

ISSUE 4:
WHETHER THE APPELLANT IS GUILTY OF THE OFFENCE UNDER SECTION 377
HPC OR NOT ?

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SUMMARY OF ARGUMENTS

I. THAT THE GENDER OF KUKOO SHOULD BE DETERMINED ON THE

BASIS OF BIOLOGICAL TEST
It is humbly submitted that the gender of Kukoo should be determined on the basis of a
biological test and not based on her self-perceived gender identity. Kukoo, who was born as an
intersex person did not register the change after her sex reassignment surgery in official
records. The DNA test also revealed that Kukoo had XY chromosomes which implies that
Kukoo is a biological male. The Transgender Persons (Protection of Rights) Bill, 2018 is yet
to be passed by Parliament.

II. THAT KUKOO’S CONSTITUTIONAL RIGHT TO DIGNITY WAS NOT

VIOLATED DUE TO THE CONDUCTING OF THE BIOLOGICAL TEST
It is humbly submitted before the Hon’ble Dhillika High Court that Kukoo never informed
about the Sex reassignment surgery to inspector Sartaj Singh. Intersex persons are those who
are born with a sexual anatomy. They differ from Transgenders and Transsexuals. Transgender
are those who are born in the wrong body and Sexual orientation is his/her sexual attraction to
same, opposite or both the sexes. It is submitted that the test used was not appropriate for
Kukoo’s gender determination. Moreover, the conducting of Corbett test/Biological test is
right, just and fair. There should be certain requisites in being fair and reasonable. A procedure
is no procedure if it doesn’t fulfil this attributes. Test of reasonableness should be applied.
There should be deep awareness of growing requirements in society. Sexual orientation is a
part of a person’s identity. Considering she didn’t tell Sartaj Singh about sex reassignment
surgery. Hence the Corbett test was just, fair and reasonable.

III. THE APPELLANT IS NOT GUILTY OF OFFENSE UNDER S. 376 HPC

It is humbly submitted that the appellant is not guilty of the offence of rape under section 376
of the Hind Penal Code. Kukoo, who is biologically proved a male and not yet registered as a
female is officially a male. Hence, the offence of rape cannot be committed against Kukoo as
per section 375 of the Hind Penal Code. Arguendo, assuming Kukoo is a female, then also
charges of rape cannot be sustained against Gaitonde. As per section 90 of the Hind Penal
Code, Kukoo’s consent is valid as there is no misrepresentation of fact. Hence it does not

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constitute rape under section 375. The prosecutrix had sexual intercourse with the accused out
of love and passion and then later, the accused promised to marry. A misconception arising out
of a false promise of marriage, having no bearing on the nature and consequences of the act of
sexual intercourse in relation to which consent is given would not be vitiated and therefore, the
consequent act of sexual intercourse would not amount to rape.

IV. THAT APPELLANT IS NOT GUILTY OF THE OFFENSE UNDER SECTION

377, HPC
It is humbly submitted before the Hon’ble Dhillika High Court that the appellant is not guilty
of the offense under Section 377 of the Hind Penal Code. Both the Ganesh and Kukoo are in a
live-in relationship with consent. During that relationship they both had engaged in the sexual
and carnal intercourse several times with the free consent of both the parties. Both the Appellant
and Respondent are the adults engaging in the sexual as well as carnal intercourse with the free
consent. The adults are of the same gender and then they had engaged in the intercourse. The
carnal intercourse between two consenting adults is no longer a penal offense under Section
377.

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ARGUMENTS ADVANCED

1. THAT THE GENDER OF KUKOO SHOULD BE DETERMINED ON THE BASIS OF

BIOLOGICAL TEST.

It is humbly submitted before the Hon’ble High Court that gender of Kukoo should be
determined on the basis of a biological test and not on the basis of a psychological test or a
self-perceived identity. Kukoo was born as an intersex person who underwent sex reassignment
surgery at the age of 21. However, due to exigencies of her professional life and time
constraints she could not register the change in official government records. Further, it is
submitted that the DNA test revealed that Kukoo had XY chromosomes which implies that
Kukoo is a biological male.

1.1. Kukoo is biologically a male

It is clearly mentioned that Kukoo was born as an intersex person who underwent sex
reassignment surgery at the age of 21. As per definition, female is defined as “being the sex
that typically has the capacity to bear young or produce eggs” . Kukoo does not have the
capacity to bear children. Male-to-female transsexuals are still chromosomally males, while
ostensibly female. For a transsexual woman (assigned male at birth), genital surgery generally
gives her a functional vagina constructed from her prior genitalia. It does not, however, give
her ovaries, a uterus or a cervix. Medical science cannot transplant those female reproductive
organs to everyone. According to a medical professional at WHO, “Sex reassignment surgery
(SRS) is a dramatic and irrevocable final step in male to female gender transition (or vice-
versa) and is undertaken only after a comprehensive evaluation by a qualified mental health
professional as it requires change in the genitalia and other sex characteristics. It will not be
possible for you to give birth to the baby due to the absence of ovaries.” Thus, in the instant
case even though Kukoo identified himself as a Female and underwent SRS but still she doesn’t
has the capacity to give birth to children due to absence of ovaries. Hence Kukoo falls outside
the ambit of female to this extent. According to J. Randell, post-operative transsexuals will
remain castrated males [or females] and they will not be made into [biological] women [or
men.] Thus, biologically a person's chromosomal or genital sex remains unchanged.

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1.2. Kukoo did not register gender change in official government records

It is humbly submitted that that if a gender of person differs from the one assigned at birth than
the same would require a declaration from the competent authority. In the present case, the
prosecutrix underwent a sex reassignment surgery and even identified herself as a female. She
failed to register this change in government/ official records. Post the NALSA judgment, the
procedure involved in the sex change in legal documents are as follows :

• Get the Sex Reassignment Surgery (SRS) done.

• Post-surgery, get a certificate of sex change by a board of doctors of the hospital

concerned.

• Place a newspaper advertisement to that effect .

• If you are employed, submit an application to your employer requesting necessary

change in the records and issuance of a new identity card.

• An application accompanied by copies of affidavit, newspaper advertisement and

employer’s identity card to the following authorities for change in their records and issuance
of fresh documents incorporating the change.

Kukoo failed to follow this procedure and is still male in official records. Thus, without proper
declaration the sex of Kukoo will still be recognized as ‘Male’. Furthermore, in Berlin and
Frankfurt, the courts have held that alteration of sex by surgical removal of the sexual organs
will not be accepted as a basis for altering a passport.

1.3. Giving choice of self-determination of gender is not rational

It is humbly submitted before the Hon’ble court that if the right to self-perceived gender is
granted the same will lead to a chaotic social environment. The desire of concealment of a
change of sex by the transsexual is outweighed by the public interest for protection against
fraud. The person at their will start to identify themselves as female or male when necessary.
In our country, there are various welfare schemes that are solely meant for the women. Under
article 15(3), the Constitution of India allows for positive discrimination in favor of women.
The article, under right to equality, states: "Nothing in this article shall prevent the State from
making any special provision for women and children” 1. It is further submitted that the concept

1
Art. 15 of the Indian Constitution

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of self-perceived gender provided in the NALSA judgment is flawed to this extent and if it is
construed than it is bound to create havoc in the society.

1.4. The Transgender Persons (Protection of Rights) Bill, 2018 is yet to be passed by
the Parliament.

It is Humbly submitted before the Hon’ble High Court that there is no legislation that approves
the concept of Self Identification of Gender. The Transgender Person Bill is still pending to be
passed in the Upper House of Parliament. Due to absence of legislation to this extent the Self
Perceived gender of Prosecutrix can’t be held legally valid.

2. THAT KUKOO’S CONSTITUTIONAL RIGHT TO DIGNITY IS VIOLATED DUE TO

CONDUCTING OF THE BIOLOGICAL TEST.

It is humbly submitted before the Hon’ble Dhillika High Court that Kukko’s Constitutional
Right to Dignity is violated due to conducting of the biological test as [2.1] That Kukoo never
informed about the Sex Reassignment Surgery to the Inspector and [2.2] That Conducting
Corbett Test/Biological test is right, just and fair.

2.1. That Kukoo never informed about the Sex Reassignment Surgery to the Inspector.
It is humbly submitted before the Hon’ble Dhillika High Court that according to intersex
society for North Americans that “Intersex” is a general term used for a variety of conditions
in which a person is born with a reproductive or sexual anatomy that doesn’t seem to fit the
typical definitions of female or male. For example, a person might be born appearing to be
female on the outside, but having mostly male-typical anatomy on the inside. Or a person may
be born with genitals that seem to be in-between the usual male and female types—for example,
a girl may be born with a noticeably large clitoris, or lacking a vaginal opening, or a boy may
be born with a notably small penis, or with a scrotum that is divided so that it has formed more
like labia. Or a person may be born with mosaic genetics, so that some of her cells have XX
chromosomes and some of them have XY.2

It is humbly submitted before the Hon’ble Dhillika High Court that people who identify as
transgender or transsexual are usually people who are born with typical male or female
anatomies but feel as though they’ve been born into the “wrong body.” For example, a person
who identifies as transgender or transsexual may have typical female anatomy but feel like a

2
Marilyn Stowe (2016), http://www.isna.org/faq/what_is_intersex/ (last visited Jul 31, 2019).

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male and seek to become male by taking hormones or electing to have sex reassignment
surgeries. People who have intersex conditions have anatomy that is not considered typically
male or female.3

It is humbly submitted before the Hon’ble Dhillika High Court that reliance can be placed on
Navtej Singh Johar v. Union of India4, that sexual orientation refers to an enduring pattern of
emotional, romantic and/or sexual attractions to men. women or both sexes. Sexual orientation
also refers to a person's sense of identity based on those attractions, related behaviours, and
membership in a community of others who share those attractions.

Considering the case in hand, Kukoo was born as intersex person and then undergone a Sex
Reassignment Surgery. Kukoo never told about her sexual identity to the police personnel.
Kukoo being the intersex could have been male or female, in order to make sure this the police
officer had urged Kukoo undergo the Corbett test to ascertain her gender. The police person is
doing his duty to lodge the F.I.R. but since the requirement of the S. 376 HPC would require a
gender then only he informed Kukoo to undergo Corbett test.

2.2. That Conducting Corbett Test/Biological test is right, just and fair.
It is humbly submitted before the Hon’ble Dhillika High Court that reliance can be placed on
Maneka Gandhi v. Union of India5 that the procedure in Art.21 must be right and just and fair
and nor arbitrary, fanciful or oppressive, otherwise it would be no procedure at all and the
requirement of Art. 21 would not be satisfied. The procedure must satisfy certain requisites in
being fair and reasonable. The concept of reasonableness must be projected in the procedure
contemplated by Art. 21.

The Hon’ble Supreme Court has asserted in Kartar Singh v. State of Punjab 6 that the procedure
contemplated by Art. 21 is that it must be right, just and fair. The expression procedure
established by law must include both the substantive as well as procedural law. A procedure
not fulfilling these attributes is no procedure at all in the eyes of Art. 21

It is humbly been submitted before the Hon’ble Court that reliance can be placed on Olga Tellis
v. Bombay Municipal Corporation 7 that the procedure prescribed by law for the deprivation
of the right conferred by Art. 21 must be fair, just and reasonable. The procedure prescribed by

3
Hari Nef (2008), https://www.who.int/genomics/gender/en/index1.html (last visited Jul 31, 2019).
4
Navtej Singh Johar v. Union of India, AIR 2018 SC 4321.
5
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
6
Kartar Singh v. State of Punjab, (1994) 3 SCC 569.
7
Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.

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law for depriving the person right to life must conforms to the norms of justice and fair play.
Procedure which is unjust or unfair in the circumstances of the case, attracts the vice of
unreasonableness, thereby vitiating the law which prescribes that procedure and consequently,
the action taken under it.

It is humbly been submitted before the Hon’ble Court that reliance can be placed on State of
8
Madras v. V.G. Row that it is important in this context to bear in mind that the test of
reasonableness, wherever prescribed, should be applied to each individual statute and no
abstract standard or general pattern, of reasonableness can be laid down as applicable to all
cases.

The Supreme Court has emphasized in Pathumma v. State of Kerela9 that in interpreting the
constitutional provision, the Court should keep in mind the social setting of the country so as
to show a complete consciousness and deep awareness of the growing requirements of the
society. Reliance can also be placed on Director General, Directorate General of Doordarshan
v. Anand Patwardhan 10 that the test of fairness has to be looked into form from various angels
and common sense point of view.

It is humbly been submitted before the Hon’ble Court that sexual orientation refers to an
enduring pattern of emotional, romantic and/or sexual attractions to men. women or both sexes.
Sexual orientation also refers to a person's sense of identity based on those attractions, related
behaviours, and membership in a community of others who share those attractions.11

Considering the case in hand, Kukoo was born as the intersex person 12 and never told Sartaj
Singh that she had undergone sex reassignment surgery. Due to this the inspector informed that
Biological test would be needed to ascertain the gender. Kukoo being a medical professional 13
knows what would be the procedure of the biological test and implications of the DNA test.
Despite of this, Kukoo herself agreed to the test without any coercion. Thus, witnessing all the
circumstances, the Appellant humbly pleads that the conducting of the biological test by the
police inspector is just, fair and reasonable.

8
State of Madras v. V.G. Row, AIR 1952 SC 196.
9
Pathumma v. State of Kerela, AIR 1978 SC 771.
10
Director General, Directorate General of Doordarshan v. Anand Patwardhan, AIR 2006 SC 3346.
11
American Psychological Association, "Answers to Your Questions for a Better Understanding of Sexual
Orientation & Homosexuality," 2008
12
Moot Prop ¶ 7.
13
Moot Prop ¶ 1.

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3. THE APPELLANT IS NOT GUILTY OF THE OFFENCE OF ‘RAPE’ UNDER SECTION 376 OF
THE HIND PENAL CODE.

3.1. Rape cannot be committed since Kukoo is biologically a male

It is humbly submitted that since Kukoo is proved a male in the biological test having XY
chromosomes, charges of the offence of rape cannot be sustained against Gaitonde. According
to section 375 of the Hind Penal Code, the appellant is not guilty of the offence of ‘rape’ under
section 376 of the Hind Penal Code since the offence of rape can only be committed against a
woman and not a male or an intersex. In the instant case, Kukoo is biologically a male and
hence rape cannot be constituted against her even if she self identifies herself as a female.
Arguendo, assuming but not conceding, if Kukoo is a female still the offence of rape cannot be
constituted against her. This is elucidated further.

3.2. The consent is valid as there is no misconception of fact.

A precisely worded Section 375, culls out different grounds, falling within any of which, an
act of sexual intercourse would be rape. One such ground is absence of consent of the woman.
Consent is defined in Section 90 of the I.P.C as “a consent is not such a consent as it is intended
by any Section of this code, if the consent is given by a person […] under a misconception of
fact” [Emphasis added]. “Consent”, according to the Shorter Oxford English Dictionary, means
“agreement as to course of action.”14 Whether there was consent or not, is to be ascertained
only on a careful study of all relevant circumstances.15

3.3.This is a case of breach of promise and not false promise.

The question of whether consent obtained by false promise is vitiated by Section 90 first came
before the Calcutta High Court as a revision application in Jayanthi Rani Panda v. State of
West Bengal16. In that case, the respondent was charged with rape under Section 376 of the
I.P.C. for having sexual intercourse with the petitioner, consent to which was obtained by
making a false promise of marriage.17 The lower court, acquitting the respondent, had ruled
that Section 90 is not attracted, as a false promise is a not a fact and hence is not covered by

14
SHORTER, OXFORD ENGLISH DICTIONARY 304 (2005).
15
State of H.P. v. Mango Ram, (2000) 7 SCC 224.
16
Jayanthi Rani Panda v. State of West Bengal, 1984 Cri. L.J. 1535.
17
Id. at ¶1-2.

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the expression “misconception of fact” in Section 90.18 The Calcutta High Court, on a re-
appreciation of facts found that “it cannot be said that […] accused had no intention to marry
the complainant” and that this is a case of “failure to keep a promise”.19 Thus, the Court found
the present case to be that of breach of promise and not false promise and held the same not to
attract Section 90.20 Further, the Court held that for Section 90 to be attracted, the fact
misrepresented must be of immediate relevance and not pertaining to a “future uncertain date”,
as in this case.21 On these grounds the Calcutta High Court rejected the petition and refused to
convict the respondent under Section 376 for rape.

Following Jayanthi Rani Panda, the Calcutta High Court in Hari Majhi v. State of West
Bengal22 and in Abhoy Pradhan v. State of West Bengal23, set aside the conviction of the
appellants under Section 376 for rape and under Section 417 for cheating, holding these cases
to involve only a breach of promise and not false promise and hence, not attracting Section
90.24

In State of Karnataka v. Anothnidas25, the Karnataka High Court ruled that a case of breach of
promise would not be covered by “misconception of fact” within the meaning of Section 90,
and hence, sexual intercourse, consent to which was obtained by making a promise which was
later breached, would not be rape.26 Again in Honayya v. State of Karnataka27, the Karnataka
High Court, following State of Karnataka v. Anothonidas held consent, given on a promise
which was later breached, would not attract Section 90 of the IPC and hence, any consequent
sexual intercourse would not be rape, within the meaning of Section 375 of the IPC.28

In the instant case too, the accused did not misrepresented any fact of immediate relevance.
The accused promised the prosecutrix to marry her which pertains to a “future uncertain date”.
Moreover, it cannot be inferred from facts at hand that there was mala fide intention of the
accused to marry from the very beginning. It was due to the change in the circumstances that

18
Id. at ¶3.
19
Id. at ¶7.
20
Id.
21
Id.
22
Hari Majhi v. State of West Bengal, 1990 Cri.L.J. 650 (Cal.).
23
Abhoy Pradhan v. State of West Bengal, 1999 Cri.L.J. 3534 (Cal.).
24
Supra note 9 at ¶8-10; id. at ¶16.
25
State of Karnataka v. Anothnidas, ILR 2000 Kar. 266.
26
Id. at ¶1.
27
Honayya v. State of Karnataka, ILR 2000 Kar. 3336.
28
Id. at ¶8.

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the accused found out relationship of prosecutrix with her colleague Dr.Parulkar and it was the
prosecutrix only who left the apartment with a threat to never come back.

The respondent might rely on the case of Saleha Khatoon v. State of Bihar29, in which the Patna
High Court, quashing the order of the magistrate, held false promise to be covered under
“misconception of fact” and consequently, sexual intercourse, on consent thus obtained, to be
rape. But, as noted in Uday v. State of Karnataka,30 this observation of the Patna High Court
must be seen in the light of the peculiar facts and circumstances of the case. Moreover, the
Patna High Court only remanded the accused for trial and did not convict him under Section
376 and as such this observation was made only prima facie, without going into the merits of
the case.31

The question of whether sexual intercourse, consent to which is obtained by making a false
promise, is rape arose before the SC for the first time in Uday. In this case, the appellant had
obtained the consent of the prosecutrix to sexual intercourse by making a promise to marry,
which the lower court and the Karnataka High Court found to be false.32 The SC, reasoned that
“legal consent, which will be held sufficient in a prosecution for rape, assumes a capacity to
the person consenting to understand and appreciate the nature of the act committed [Emphasis
added]”33 and hence, sought to construe “misconception of fact” in Section 90 as misconception
as to the nature and consequence of the sexual act.34 Further, the Supreme Court held that “a
false promise is not a fact within the meaning of the Code”35. On these grounds the SC held
that false promise is not covered within the expression “misconception of fact” with the result,
that sexual intercourse, consent to which is obtained by making a false promise, is not rape.36

The decision of the SC in Uday was followed by the Calcutta High Court in Krishna Padho
Mahto v. State of West Bengal37 and in Shamshad Ali v. State38, where it was found that consent
was given understanding the nature and consequence of sexual intercourse, and accordingly,
charges of rape were negative. In the case of Gaurav Maggo, it has been held as under:

29
Saleha Khatoon v. State of Bihar, 1989 Cri.L.J. 202 (Pat.).
30
Uday v. State of Karnataka, AIR 2003 SC 1639, at ¶19.
31
Saleha Khatoon, supra note at ¶10, 12.
32
Uday, supra note at ¶7-8.
33
Id. at ¶12.
34
Id. at ¶10, 11 & 21.
35
Id. at ¶21.
36
Id.
37
Krishna PadhoMahto v. State of West Bengal, (2005) 2 CHN 198.
38
Shamshad Ali v. State, (2004) 2 CHN 424.

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"There is nothing in her evidence to demonstrate that she was incapable

of understanding the nature and implications of the act which she
consented to. Her consent for physical relations (if any) was an act of
conscious reason. If a fully grown up lady consents to the act of sexual
intercourse on a promise to marry and continues to indulge in such
activity for long, it is an act of promiscuity on her part and not an act
induced by misconception of fact."

Likewise Uday and Gaurav Maggo, in the instant case too, the prosecutrix aged 24 years. It
clearly establishes the point that the prosecutrix was capable to understand the nature and
consequence of sexual intercourse.

In the case of Deepak Gulati v. State of Haryana39, (2013) 7 SCC 675, the Hon'ble Supreme
Court observed that there may be a case where the prosecutrix agrees to have sexual intercourse
on account of her love and passion for the accused, and not solely on account of
misrepresentation made to her by the accused, or where an accused on account of circumstances
which he could not have foreseen, or which were beyond his control, was unable to marry her,
despite having every intention to do so. Such cases must be treated differently. The High Court
of Delhi in Sujit Ranjan v. State40 after referring to and considering several decisions of Hon'ble
Supreme Court, held that the legal position which can be culled out from the judicial
pronouncements referred above is that the consent given by the prosecutrix to have sexual
intercourse with whom she is in love, on a promise that he would marry her on a later date,
cannot be considered as given under misconception of fact. The failure to keep the promise on
a future uncertain date may be on account of variety of reasons and could not always amount
to misconception of fact right from the inception.

Similarly in the case at hand too, the prosecutrix had sexual intercourse with the accused out
of love and passion and then later, the accused promised to marry. Moreover, the accused could
not have foreseen that prosecutrix would indulge in sexual intercourse with her colleague
Dr.Parulkar. Thus, the accused could not marry the prosecutrix despite having every intention
do so as it was prosecutrix herself that left the apartment.

39
Deepak Gulati v. State of Haryana, (2013) 7 SCC 675, ¶21.
40
Sujit Ranjan v. State, Criminal Appeal No. 248 of 2011, ¶16.

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It is an established principle of common law that consent to engage in sexual intercourse is

vitiated due to fraud or misrepresentation only when the fraud or misrepresentation extends to
the “nature or quality of the act in question” or to the “identity of the person”.41 This principle
was laid down in the English case of R. v. Clarence42, where the accused, suffering from
gonorrhoea failed to disclose the same to his sexual partner and was tried for rape on the ground
that the consent given by the sexual partner was vitiated by fraud. Similarly, the High Court of
Australia in R v. Papadimitropoulos43, repelled charges of rape against the accused who had
obtained consent to sexual intercourse with the prosecutrix by pretending to enter into a
marriage with her. In the instant case, there is no dispute over the “nature or quality of the act
in the question” or to the “identity of the person”. The dispute is over the fact that whether the
accused can be held guilty of offence for which the prosecutrix consented.

Thus, in the absence of any specific legislative intention to overrule common law,
“misrepresentation of fact” in Section 90, when read with Section 375 must be given a
construction which is compatible with this common law principle.44 It is submitted that in the
context of the IPC, no such legislative intent to amend the common law position on consent
vis-à-vis rape can be discerned, in the absence of which, the common law position must be
reiterated.

Thus, a misconception arising out of a false promise of marriage, having no bearing on the
nature and consequences of the act of sexual intercourse in relation to which consent is given,
would not be covered within the expression “misconception of fact”. Consequently, consent to
sexual intercourse, given on the basis of a false promise of marriage, would not be vitiated and
therefore, the consequent act of sexual intercourse would not amount to rape.

41
PETER ROOK & ROBERT WARD, ROOK & WARD ON SEXUAL OFFENCES: LAW AND PRACTICE 47-48 (2004).
42
R. v. Clarence, [1888] 22 QBD 23.
43
R v. Papadimitropoulos, (1957) 98 C.L.R. 249.
44
S.K SARVARIA, R.A. NELSON’S INDIAN PENAL CODE 14-15 ( 2003); GURU PRASSANA SINGH, PRINCIPLES OF
STATUTORY INTERPRETATION 326-327 ( 2006).

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4. THAT THE APPELLANTS NOT GUILTY OF THE OFFENSE UNDER SECTION 377, HPC.
It is humbly submitted before the Hon’ble Dhillika High Court that the appellant is not guilty
of the offense under Section 377 of the Hind Penal Code as [4.1] Both Ganesh and Kukoo are
adults engaging in intercourse with free consent and [4.2] Carnal intercourse between two
consenting adults is no longer the penal offense.

4.1.Both Ganesh and Kukoo are adults engaging in intercourse with free consent.

It is humbly submitted before the Hon’ble Dhillika High Court that reliance can be placed on
Payal Sharma v. Superintendent, Nari Niketan Kalindri Vihar 45 the Hon’ble Allahabad High
Court ruled that a man and a woman, even without getting married, can live together if they
wish to. This may be regarded as immoral by society, but it is not illegal. There is a difference
between law and morality. The petitioner was major and she can set at the liberty of her choice
to live with anyone she desires to. The constitutional morality is certainly stays at much more
higher pedestal than the social morality.

In the case of S. Khushboo v. Kanniammal 46 the Supreme Court ruled that while it is true that
the mainstream view in our society is that sexual contact should take place only between marital
partners, there is no statutory offence that takes place when adults willingly engage in sexual
relations outside the marital setting. The court gives the freedom to the adults to choose the
partner of their choice and to be in a relationship with any person of their choice.

In the same context, reliance can also be placed on Lata Singh v. State of U.P. 47 , wherein it
was observed that a live-in relationship between two consenting adults of heterogenic sex does
not amount to any offence even though it may be perceived as immoral. A major girl is free to
marry anyone she likes or “live with anyone she likes”.

Reliance can also be placed on Deepak Gulati v. State of Haryana 48 where the court ruled that
consent may be express or implied, coerced or misguided, obtained willingly or through deceit.
Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance,
the good and evil on each side. There is a clear distinction between rape and consensual sex.
The court also opined that

45
Payal Sharma v. Suprintendent, Nari Niketan Kalindri Vihar, AIR 2001 AII 254.
46
S. Khushboo v. Kanniammal, (2010) 5 SCC 600.
47
Lata Singh v. State of U.P., (2006) 5 SCC 475.
48
Deepak Gulati v. State of Haryana, (2013) 7 SCC 675.

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There may be a case where the prosecutrix agrees to have

sexual intercourse on account of her love and passion for the
accused, and not solely on account of misrepresentation made
to her by the accused, or where an accused on account of
circumstances which he could not have foreseen, or which
were beyond his control, was unable to marry her, despite
having every intention to do so.

49
Reliance could be placed on the Deelip Singh v. State of Bihar in this it was held that the
Section 90 cannot, however, be construed as an exhaustive definition of consent for the
purposes of the Indian Penal Code. The normal connotation and concept of “consent” is not
intended to be excluded. Various decisions of the High Court and of this Court have not merely
gone by the language of Section 90, but travelled a wider field, guided by the etymology of the
word “consent”.

The Appellant humbly submits that according to the judgment in the case State of U.P. v.
Naushad 50 which was decided by the Hon’ble Supreme Court. The Hon’ble court said that a
woman's body is not a man's plaything and he cannot take advantage of it in order to satisfy his
lust and desires by fooling a woman into consenting to sexual intercourse simply because he
wants to indulge in it. The accused in this case has committed the vile act of rape and deserves
to be suitably punished for it.

It is humbly been submitted before the Hon’ble court that reliance can be placed on Dr.
51
Dhruvaram Murlidhar Sonar v. State of Maharashtra that if a person had not made the
promise to marry with the sole intention to seduce a woman to indulge in sexual acts, such an
act would not amount to rape. Consent given by the prosecutrix to sexual intercourse with a
person with whom she is deeply in love on a promise that he would marry her on a later date,
cannot be said to be given under a misconception of fact. A false promise is not a fact within
the meaning of the Code.52

It is humbly been submitted before the Hon’ble court that both Kukoo and Ganesh are adults
in the eyes of law and are very much aware of their conscious decision. They both after mutual

49
Deelip Singh v. State of Bihar, (2005) 1 SCC 88.
50
State of U.P. v. Naushad, (2013) 16 SCC 651.
51
Dr. Dhruvaram Murlidhar Sonar v. State of Maharastra, 2018 SCC OnLine Bom 8419.
52
Uday v. State of Karnataka, (2003) 4 SCC 46.

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understanding started the live-in relationship and have engaged in the carnal intercourse with
consent.53

4.2.Carnal intercourse between two consenting adults is no longer the penal offense.

It is humbly been submitted before the Hon’ble court that Section 377 is based on a moral
notion that intercourse which is lustful is to be frowned upon. It finds the sole purpose of
intercourse in procreation. In doing so, it imposes criminal sanctions upon basic human urges,
by targeting some of them as against the order of nature. It does so, on the basis of a social
hypocrisy which the law embraces as its own. It would have human beings lead sanitised lives,
in which physical relationships are conditioned by a moral notion of what nature does or does
not ordain. It would have human beings accept a way of life in which sexual contact without
procreation is an aberration and worse still, penal. It would ask of a section of our citizens that
while love, they may, the physical manifestation of their love is criminal. This is manifest
arbitrariness writ large.54

The court in the aforesaid judgement opined that they are of the conscious view that Section
377 IPC takes within its fold private acts of adults including the LGBT community which are
not only consensual but are also innocent, as such acts neither cause disturbance to the public
order nor are they injurious to public decency or morality. The law is et domus sua cuique est
tutissimum refugium — A man's house is his castle. Sir Edward Coke 55said:

“… the house of everyone is to him as his castle and fortress, as well for his defence against
injury and violence as for his repose….”

Considering the case in hand, both Kukoo and Ganesh had engaged in carnal intercourse on
the basis of the free consent. Thus, the consenting sexual acts between the appellant and
prosecutrix are not a criminal offense after the repealing of the Section 377 HPC.

53
Moot Prop ¶ 3.
54
Navtej Singh Johar v. Union of India, AIR 2018 SC 4321.
55
Semayne's case, 5 Co Rep 91a : 77 ER 194, p. 195 (KB 1604).

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PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited,
the appellant humbly pleads before the Hon’ble Dhillika High Court to adjudge and
declare :

1. That biological orientation is the legitimate basis of gender determination.

2. That Kukoo’s Right to dignity is not violated by the State.

3. That Ganesh is not guilty of the penal offense under S. 376 and S. 377 of HPC.

And Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests of
Justice, Fairness, Equity and Good Conscience.

For This Act of Kindness, the Appellant(s) Shall Duty Bound Forever Pray.

All of which is respectfully submitted

Counsel for the Appellant(s)

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