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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
ISSUE 3: Whether marital rape is a violation of Article 21?
 SUMMARY OF ARGUMENTS

ISSUE 1: Whether the PIL is maintainable or not?

1. The petitioner LIT Foundation don’t have locus standi to file the
petition as Mr. Furkan, followed all the norms of Mohammedan Law.

2. There is exception 2 to section 375 of Indiva penal code 1986. (Exception)

—Sexual intercourse by a man with his own wife, the wife not being
under fifteen years of age, is not rape.]

ISSUE 2: Whether marital rape should be criminalized ?

1. The concept of marital rape, as understood internationally,

cannot be suitably applied in the Indivan context due to various
factors like level of education/illiteracy, poverty, myriad social
customs and values, religious beliefs, mindset of the society to treat
the marriage as a sacrament, etc.,”

2. if marital rape was made a crime, the entire family system Indiva
would come under great stress.

ISSUE 3: Whether marital rape is a violation of Article 21?

The exception 2 of section 375 of Indivan Penal Code states that non-
consensual sexual intercourse by a man with his own wife, if she is
over 15 years does not amount to rape. It, thus keeps outside the
ambit of ‘ rape’ a coercive and non-consensual sexual by a ‘’husband’
with his ‘wife’ (above 15 years of age)and thereby allows a ‘husband’ to
exercise, with impunity, his marital right of (non –consensual or
undesired) intercourse with his ‘wife’. It is believed that the husband’s
immunity for marital rape is premised on the assumption that a
woman, on marriage, gives forever her consent to the husband for
sexual intercourse. The husband has the right to have sexual
intercourse with his wife, whether she is willing or not.

Since there is no rape happened so no question of violation of article 21

come in question.
 ARGUMENTS ADVANCED
ISSUE 1: Whether the PIL is maintainable or not?

1. The petitioner LIT Foundation don’t have locus standi to file the
petition as Mr. Furkan, followed all the norms of Mohammedan
Law.

2. There is exception 2 to section 375 of Indiva penal code 1986. (Exception)

—Sexual intercourse by a man with his own wife, the wife not being
under fifteen years of age, is not rape.

3.1 There is already exist special provision for women protection under
National Commission for Women Act, 1990.
3.2 The Prohibition of Child Marriage Act, 2006
3.3 Special Marriage Act, 1954
3.4 Dowry Prohibition Act, 1961
3.5 Indian Divorce Act, 1969
3.6 Sec 354,375,304B,497,498B I.P.C
3.7 Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013
3.8 Indecent Representation of Women (Prevention) Act,1986
3.9 Protection of Women from Domestic Violence Act, 2005

Since there are already law exist for the protection of women even
marital rape for child girl.

ISSUE 2: Whether marital rape should be criminalized ?

1.The concept of marital rape, as understood internationally, cannot be

suitably applied in the Indivan context due to various factors like level
of education/illiteracy, poverty, myriad social customs and values, religious
beliefs, mindset of the society to treat the marriage as a sacrament,
etc,”

1. if marital rape was made a crime, the entire Indivan family system
would come under great stress.
2. If marital rape criminalized than Approx all the married men of
country will be under behind the bar.
3. Proving the rape by husband is nearly impossible.
4. Implementation this to certain religion will create the havoc ,
chaos in the society .
5. the apex court in Independent Thought vs Union of India and
Anr (2017) has criminalized sexual intercourse with a minor wife aged
 between 15 and 18 years, but has refrained from making any
observation regarding the marital rape of a woman who is above 18
years of age.

ISSUE 3: Whether marital rape is a violation of Article 21?

Case: Independent Thought vs Union of India and Anr (2017)

1.The exception 2 of section 375 of Indivan Penal Code states that

non- consensual sexual intercourse by a man with his own wife, if she is
over 15 years does not amount to rape.

2 It, thus keeps outside the ambit of ‘ rape’ a coercive and non-
consensual sexual by a ‘’husband’ with his ‘wife’ (above 15 years of
age)and thereby allows a ‘husband’ to exercise, with impunity, his
marital right of (non – consensual or undesired) intercourse with his
‘wife’. It is believed that the husband’s immunity for marital rape is
premised on the assumption that a woman, on marriage, gives forever
her consent to the husband for sexual intercourse.
3. The husband has the right to have sexual intercourse with his
wife, whether she is willing or not.

Here husband is just exercising his right which he acquired after

marriage Article 21 comes in question when there is danger to life,

dignity, privacy. Sex after marriage is cannot be put in the category of

rape.
 PRAYERS

1. Declare that PIL is not maintainable as there is already law exist

for women protection.
2. Marital rape should not be criminalized as it will entire Indivan
family system would come under great stress.
3. Declare that there is no violation of the fundamental right of
article 21 of C.O.I

COUNSEL FOR RESPONDENT