STATEMENT OF FACTS

1. LIT Foundation is a Non-government Organization, being the

headquarter in the state of Dahelvi, the capital of Indiva. The
foundation works for the protection of women against domestic
violence and rescued many women, victims of domestic violence in
the state of Dahelvi. It also provides legal support in their fight for
justice.
2. Those women have approached the foundation for legal help
regarding the matter of domestic violence.
3. The Foundation filed a PIL before the High Court of Dahelvi and
pleaded for the criminalization of ‘Marital Rape’. Mr. Furkan filed a
petition before the High Court of Dahelvi to quash an FIR registered
against him on the Complaint of his wife under section 376,363 of
IPC reads with section 3 and 4 of POCSO Act.
4. The High Court of Dahelvi clubbed the PIL and petition of the
foundation Mr. Furkan and subjected it to the outcome of the case.
The High Court of Dahelvi delivered a split judgment and failed to
give a decisive decision on this point.
5. A Public Interest Litigation was filed by the NGO before the Hon’ble
Supreme Court of India with respect to the violation of fundamental
rights of married women of all ages in the form of marital rape. The
PIL also challenges the constitutional validity of Exception II to Section
375 of the Indian Penal Code, 1860.
 STATEMENT OF ISSUES

ISSUE 1

ISSUE 1: WHETHER THE PIL IS MAINTAINABLE OR NOT?

ISSUE 2

ISSUE 2: WHETHER MARITAL RAPE SHOULD BE CRIMINALIZED ?

ISSUE 3

ISSUE3: WHETHER MARITAL RAPE IS A VIOLATION OF

ARTICLE 21?
 SUMMARY OF ARGUMENTS

ISSUE 1: WHETHER THE PIL IS MAINTAINABLE OR NOT?

It is humbly request before the Supreme Court of Indiva that the petition filed by the petitioner
is maintainable under Article 14,15, 21 of the Constitution of the Indiva.

Article14: Equality before law.

Article15: Prohibition of discrimination on grounds of religion, race, caste, sex or place
of birth.

Article21: Protection of life and personal liberty.

The Protection of Human Rights Act, 1993

ISSUE 2: WHETHER MARITAL RAPE SHOULD BE CRIMINALIZE?

It is humbly request before this Hon’ble Court that:

Article 14: - Equality before law and equal protection of law

It means that law must be equal to all person and if there is any discrimination than it must be
reasonable and rational and total autonomy of husband over the body of wife is totally arbitrary,

unreasonable and violates the basic principle of Article 14

Article 15:
Article 15 says that there must not be any discrimination on the ground of sex and making the
sexual relation against the consent of wife violates the Article 15
 Article 15 (3)
No laws can be against the women but explanation 2 of Article 375 make it clear that Husband
can not be punished for the offence of Rape.

Article 21
Everyone have the right to take a decision over their personal life and body and making the
sexual intercourse against the consent of wife is against the Article 21 of Indian Constitution

In the sakhi v. Union of India Supreme Court held that explanation (2) of section 375 of
Indian penal code should be deleted forced intercourse by a husband with his wife should be
treated equally as an offence just as any physical violence by a husband against the wife is a
treated as an offence.

ISSUE 3: WHETHER MARITAL RAPE IS A VIOLATION OF

ARTICLE 21??

It is humbly request before this Hon’ble Court that

Article 21
Everyone have the right to take a decision over their personal life and body and making the
sexual intercourse against the consent of wife is against the Article 21 of Indian Constitution

In the Sakhi v. Union of India Supreme Court held that explanation (2) of section 375 of
Indian penal code should be deleted forced intercourse by a husband with his wife should be
treated equally as an offence just as any physical violence by a husband against the wife is a
treated as an offence.
 ARGUMENTS ADVANCED

ISSUE 1: WHETHER THE PIL IS MAINTAINABLE OR NOT?

The Hon’ble Supreme Court of India has the jurisdiction in this matter under Article 32,
14,15,19,21 of the Constitution of Indiva, The Protection of Human Rights Act, 1993 which
reads as follows:

Article 32 of COI Remedies for enforcement of rights conferred by this Part-

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs
whichever may be appropriate, for the enforcement of any of the rights conferred by this
Part.”

Article14: Equality before law

(1) The natural identity of an individual should be treated to be absolutely essential to his
being. What nature gives is natural. That is called nature within. Thus, that part of the
personality of a person has to be respected and not despised or looked down upon.
(2) Destruction of individual identity would tantamount to crushing of intrinsic dignity that
cumulatively encapsulates the values of privacy, choice, freedom of speech and other
expressions. It can be viewed from another angle. An individual in exercise of his
choice may feel that he/she should be left alone but no one, and we mean, no one, should
impose solitude on him/her.
(3) The eminence of identity has been luculently stated in National Legal Services
Authority v. Union of India and others popularly 1 (2014) 5 SCC 438 7 known as
NALSA case, wherein the Court was dwelling upon the status of identity.

Article 39A: Equal justice and free legal aid

(4) The State shall secure that the operation of the legal system promotes justice, on a basis
of equal opportunity, and shall, in particular, provide free legal aid, by suitable
legislation or schemes or in any other way, to ensure that opportunities for
securing justice are not denied to any citizen by reason of economic or other
disabilities.
 (5) The Public Interest Litigation (PIL) respectfully concedes to the jurisdiction of
the Hon’ble Supreme Court.

ISSUE 2: WHETHER MARITAL RAPE SHOULD BE CRIMINALIZE?

The Hon’ble Supreme Court of India,

1. What is marital rape?

1. Marital rape is done under the defense “she is my wife”. Section 375 of the Indian Penal Code
(hereinafter, IPC) defines “rape” as sexual intercourse without the victim’s free consent. But
the exception 2 mentions, “Sexual intercourse by a man with his own wife, the wife not being
under fifteen years of age, is not rape”.
2. The law itself gives the man to have defense in the name of marriage. A girl when raped without
marriage is criminalized, and the same thing when happens to her by her own legally wedded
spouse, it’s not an offense? Rape is rape, be it by someone stranger, by someone familiar or be it
by her own spouse.
3. It’s also important to note that some people don't think any of these labels describe them
accurately. Some people don't like the idea of labels at all. Other people feel comfortable with
certain labels and not others. It's up to you to decide how you want to label yourself, if at all

SEXUAL ORIENTATION

1. Sexual orientation is about who you’re attracted to and want to have relationships with. Sexual
orientations include gay, lesbian, straight, bisexual, and asexual.
2. This means that being transgender (feeling like your assigned sex is very different from the
gender you identify with) isn’t the same thing as being gay, lesbian, or bisexual. Sexual
orientation is about who you want to be with.

International law and marital Rape

(1) In December 1993 the United State nations High commissioner for human right
published the declaration on the elimination of violence against women. This establishes
marital Rape as a human right violation. In 1997 UNICEF reported that just 17 states had
criminalized marital Rape In 2003 UNIFEM reported that more than 50 states did so. The
countries like Poland Soviet Union were first to criminalized marital Rape.
Recent countries to criminalize marital Rape include Zimbabwe (2001), Turkey, Cambodia
(2005) Malaysia (2007) Thailand (2007) South Korea (2013). Â According to UN population
fund more than two third of the married women in India. Aged between 15 to 49 are severely
beaten or forced to provide sex

Conclusion:

Now after the above fact marital Rape is totally morally, legally, wrong. It is very sad that
marital Rape is existed in India a disgraceful offence that has scared the trust and confidence
in the institution of marriage.

Now time has come to criminalized a marital rape Indian parliament should make a law for
preventing the case of marital and it must be criminalized it is a demand of time and if
parliament don't make law for preventing sexual harassment by husband against the wife than
Supreme Court make declared the section 375 of IPC with the help of Article 13 (power of
judicial review) because it is totally arbitrary, discriminatory and against the women's right..

Violation of Article 21 Protection of life & personal liberty.

Article 15

Article 15 says that there must not be any discrimination on the ground of sex and making the
sexual relation against the consent of wife violates the Article 15

Article 15 (3)

No laws can be against the women but explanation 2 of Article 375 make it clear that Husband
cannot be punished for the offence of Rape.

.
 ISSUE 3: WHETHER MARITAL RAPE IS A VIOLATION OF

ARTICLE21??

The Hon‟ble Supreme Court of India it is justifiable as it

Article 21 of the Indian constitution enshrines in it the right to life and personal liberty. Article
21 although couched in negative language confers on all persons the fundamental right to
life and personal liberty.
Post the case of Maneka Gandhi v Union of India it has become the source of all forms of
right aimed at protection of human life and liberty. The meaning of the term ‘life’ has thus
expanded and can be appropriately summed up in the words of Field J. in Munn v Illinois
where he held that life means ‘something more than a mere animal existence’, which was
further in Bandhua Mukthi Morcha v. Union of India
where the SC affirmed that right to live with human dignity. 15Independent Thought v. Union
of India. 2013 16Independent thought v. Union of India ,2013 Legal Education in
Contemporary Era – 2018 ISBN: 978-93-5187-924-4 In light of this expanding jurisprudence
of article 21, the doctrine of marital exemption to rape violates a host of rights that have
emerged from the expression ‘right to life and personal liberty’ under Article 21
.The marital exemption to rape the right to privacy, right to bodily self-determination and the
right to good health, all of which have been recognized as an integral part of the right to life
and personal liberty at various points of time. The concept of right to life under article 21 of
the constitution includes the right to live with human dignity and all that goes along with it.
The right to live with human dignity is one of the most inherent qualities of the right to life
which recognizes the autonomy of an individual.
The SC has held in a catena of cases that the offence of rape violates the right to life and the
right to live with human dignity of the victim of the crime of rape, that it is not merely an
offence under the IPC, but is a crime against the entire society. Rape is less of a sexual
offence than an act of aggression aimed at degrading and humiliating the women. Thus, the
marital exemption doctrine is also vocative of a woman’s right to live with human dignity. Any
law which legitimizes the right of a husband to compel the wife into having sexual.
intercourse against her will and without her consent goes against the very essence of right to
life under article 21. Though the constitution does not expressly recognize the right of bodily
self-determination, such a right exists in the larger framework of the right to life and personal
liberty under article 21.
The right of self-determination is based on belief that the individual is the ultimate decision
maker in matters closely associated with his/her body or well-being and the more intimate
the choice, the more robust is the right of the individuals to be the authors of their own fate.
Consent to sex is one of the most intimate and personal choice that a woman reserves from
herself. It is a form of self-expression and self-determination and a law that makes away the
right of expressing and revoking such consent deprives a person the constitutional right of
bodily self-determination. The marital rape exemption violates the right to good health of the
victim of such a crime. The right to good health has been recognized as a part of the right to
life under the article 21. Such a right is necessary for the continuous intellectual and spiritual
well-being of a person. The marital exemption doctrine violates to right to good health of a
victim as it inevitably causes serious psychological as well as physical harm in the process.
It
destroys the psychology of a women and pushes her into a deep emotional crisis. A more
compelling argument can be made in case where forceful sexual intercourse in a marriage
leads to the Legal Education in Contemporary Era – 2018 ISBN: 978-93-5187-924-4
communication of a sexually transmitted disease to the victim of a crime of rape. The marital
exception effectively deprives a married women of her right to good health. In a series of
cases the SC has recognized that a right to privacy is constitutionally protected under Article
21 of the Indian Constitution.
Justice K.S Puttaswamy and Anr. v. Union of India and Ors is a landmark judgment of the
Supreme Court of India, which holds that the right to privacy is protected as a fundamental
constitutional right under Articles 14, 19 and 21 of the Constitution of India.17 The right to
privacy under Article 21 includes a right to be left alone. Any form of forceful sexual
intercourse violates the right of privacy. The exemption to marital rape violates a married
woman’s right to privacy by forcing her to enter into a sexual relation against her wish. The
Supreme Court in the case of State of Maharashtra v. Madhukar Narayan18 has held that
every woman was entitled to sexual privacy and it was not open for any person to violate her
privacy as an when he wished or pleased.
In the case of Vishaka v State of Rajasthan, the Supreme Court extended this right to
privacy in workplaces. Further, along the same line, there exists a right to privacy to enter
into a sexual relationship even within a marriage. By decriminalizing rape within a marriage,
the marital rape exemption violates the right to privacy of a married women
 PRAYER

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

1) DECLARE that the public interest litigation (PIL) addressing issue 1

Article 32,21,14,15 of the COI and under, The Protection of Human

Rights Act, 1993 to the Supreme Court is maintainable;
2) DECLARE marital rape should be as crime.
3) DECLARE & CONSIDER: marital rape is a violation of Article 21.

And for this act of kindness the Counsels on behalf of the Petitioners, shall duty bound forever
humbly pray.

(COUNSELS ON BEHALF OF THE PETITIONERS)