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BEFORE THE HON’BLE SUPREME COURT OF INDIA

_____________________________________
UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA, 1950

_____________________________________
W.P. (PIL) NO ______ OF 2022

IN THE MATTER OF

KALKI DEVI PETITIONER

V.

UNION OF INDIA RESPONDENT

HUMBLY SUBMITTED BEFORE THE BENCH OF THIS HON’BLE SUPREME

COURT

_____________________________________
MEMORANDUM ON BEHALF OF THE RESPONDENT

COUNSEL FOR THE RESPONDENT

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TABLE OF CONTENTS

INDEX OF AUTHORITIES...................................................................................................3

I. BOOKS..........................................................................................................................
.3
II. LEXICONS.................................................................................................................3
III. STATUTES..................................................................................................................3
IV. LEGAL DATABASE...................................................................................................3
LIST OF ABBREVIATIONS..................................................................................................4

STATEMENT OF JURISDICTION.......................................................................................6

STATEMENT OF FACTS.......................................................................................................7

STATEMENT OF ISSUES......................................................................................................8

SUMMARY OF ARGUMENTS..............................................................................................9

ARGUMENTS ADVANCED.................................................................................................11

1. WHETHER THE PRESENT PETITION IS MAINTAINABLE?.........................11

A. THAT THERE IS NO VIOLATION OF FUNDAMENTAL RIGHTS.................11
2. WHETHER SECTION 9, 13 (1-A) (II) OF THE HINDU MARRIAGE ACT, 1955
AND ORDER XXI RULE 32 AND 33 OF THE CODE OF CIVIL PROCEDURE,
1908 IS EX FACIE ARBITRARY AND VIOLATES THE FUNDAMENTAL RIGHTS
UNDER ARTICLE 14, 19 (1) (D) AND 21 OF THE CONSTITUTION OF INDIA?..12
3. WHETHER A DECREE OF RESTITUTION OF CONJUGAL RIGHTS
VIOLATES THE RIGHT OF PRIVACY, RIGHT OF MENTAL AND PHYSICAL
HEALTH AND RIGHT OF DIGNITY OF A WOMAN UNDER ARTICLE 21 OF
THE CONSTITUTION OF INDIA?................................................................................14
4. WHETHER A DECREE FOR RESTITUTION OF CONJUGAL RIGHTS
FORBIDS A PERSON TO EXERCISE HER RIGHT TO DECIDE WHETHER TO
HAVE SEXUAL INTERCOURSE WITH HIS/HER PARTNER/SPOUSE THUS
VIOLATING HER RIGHT TO BODILY INTEGRITY AND SPATIAL AND
BEHAVIORAL PRIVACY?..............................................................................................15
5. WHETHER EXCEPTION 2 OF SECTION 375 OF THE INDIAN PENAL
CODE LEGALIZES MARITAL RAPE AND VIOLATES THE FUNDAMENTAL
RIGHTS OF MARRIED WOMEN UNDER ARTICLE 14, ARTICLE 19 AND
ARTICLE 21 OF THE CONSTITUTION OF INDIA?..................................................17

MEMORANDUM ON BEHALF OF THE RESPONDENT

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PRAYER.................................................................................................................................18

INDEX OF AUTHORITIES

I. BOOKS

Constitutional Law, Pandey, J.N., 8 TH Edition, 2014

II. LEXICONS

B.A. Garner., Black s Law Dictionary,6th edition‟

III. STATUTES

1. Constitution of India, 1950.

2. Indian Penal Code, 1860.
3. Hindu Marriage Act, 1955

IV. LEGAL DATABASE

1. www.indiancaselaws.org
2. www.indlaw.com
3. www.indiankanoon.org
4. www.judic.nic.in 5. www.lexisnexis.com

6.

MEMORANDUM ON BEHALF OF THE RESPONDENT

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LIST OF ABBREVIATIONS

& And
@ at
AC Appeal Cases
AIR All India Reporter
Co. Company
CPC The Code Of Civil Procedure
Hon’ble Honourable
ICA Indian Contract Act
LJ Lord Justice
Rs. Rupees
SCR Supreme Court Report
Sec. Section
U.O.I Union of India

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TABLE OF CASES

1. A.K. Gopalan V State Of Madras Air 1950 Sc 27

2. Bhagwandas Gangasahai V. Union Of India And Ors Air 1956 Sc 175.
3. Budhan V. State Of Bihar (1955) 1 S.C.R 1045 (India).
4. Daryao V. State Of U.P Air 1961 Sc 1457.
5. Fertilizer Corporation Kamgar Union V. Union Of India, Air 1981 Sc 344.
6. Harvinderkaur V Harminder Singh, Air 1984 Delhi 66.
7. Mr.X V. Hospital Z, (1998) 8 S.C.C. 296.
8. Sareetha V. T. Venkatasubbaiah, Air 1983 Ap 356.
9. Saroj Rani V. Sudharshan,1984 Air 1562.
10. Shakilabanu V. Gulam Mustafa, Air 1971 Bom 166, 1970
11. State Of India.B V. Anwar Ali (1952) S.C.R 284 (India)
12. The Collector Of Malabar, Kozhikode And Ors.V Erimmal Ebrahim Hajee 1957 Air
688, 1957 Scr 970.

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STATEMENT OF JURISDICTION

The petitioner has invoked the jurisdiction of the Hon ble Supreme Court under Article 32 of‟
the Constitution of India 1950.

MEMORANDUM ON BEHALF OF THE RESPONDENT

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STATEMENT OF FACTS

Kalka Devi got married to Suresh Prasad on 10-01-2019 as per Hindu rites and rituals under
the Hindu Marriage Act, 1995. The husband and his family members started torturing Kalka
Devi both, physically and mentally. On account of this, Kalka Devi was forced to leave her
matrimonial home within a year of her marriage.

Kalka Devi filed a Petition u/s. 125 of the Code of Criminal procedure, 1973 seeking
maintenance before the Family Court, New Delhi. A complaint case was also filed against the
husband and his family members under section 498A of the Indian Penal Code, 1860 and
Section 3 and 4 of the Dowry Prohibition Act, 1961.

Thereafter, Suresh Prasad filed a petition seeking restitution of conjugal rights under Section 9
of the Hindu Marriage Act, 1955 before the Family Court, Court, New Delhi.

The Family Court, on 20-07-2021, issued summon to Kalka Devi seeking her presence in the
proceedings before the Court.

During the pendency of the suit before the Family Court, New Delhi for restitution of conjugal
rights Kalka Devi filed a Writ Petition against the Union of India under Article 32 of the
Constitution of India before the Hon ble Supreme Court of India inter alia challenging‟ the
constitutional validity of following provisions:

• Section 9 and Section 13 (1-A) (ii) of the Hindu Marriage Act, 1955; and
• Order XXI Rule 32 and Order XXI Rule 33 of the Code of Civil Procedure, 1908 (to
the extent applicable to a decree of restitution of conjugal rights); and
• Explanation 2 of Section 375 of India Penal Code, 1860 on the ground that it infringes
the fundamental rights under Article 14, 19 (1) (a), 19 (1)(d), 21 of the Constitution of
India.

STATEMENT OF ISSUES

ISSUE 1

WHETHER THE PRESENT PETITION IS MAINTAINABLE?

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ISSUE 2

WHETHER SECTION 9, 13 (1-A) (II) OF THE HINDU MARRIAGE ACT, 1955 AND
ORDER XXI RULE 32 AND 33 OF THE CODE OF CIVIL PROCEDURE, 1908 IS EX
FACIE ARBITRARY AND VIOLATES THE FUNDAMENTAL RIGHTS UNDER
ARTICLE 14, 19 (1) (D) AND 21 OF THE CONSTITUTION OF INDIA?

ISSUE 3

WHETHER A DECREE OF RESTITUTION OF CONJUGAL RIGHTS VIOLATES THE

RIGHT OF PRIVACY, RIGHT OF MENTAL AND PHYSICAL HEALTH AND RIGHT OF
DIGNITY OF A WOMAN UNDER ARTICLE 21 OF THE CONSTITUTION OF INDIA?

ISSUE 4

WHETHER A DECREE FOR RESTITUTION OF CONJUGAL RIGHTS FORBIDS A

PERSON TO EXERCISE HER RIGHT TO DECIDE WHETHER TO HAVE SEXUAL
INTERCOURSE WITH HIS/HER PARTNER/SPOUSE THUS VIOLATING HER RIGHT
TO BODILY INTEGRITY AND SPATIAL AND BEHAVIORAL PRIVACY?

ISSUE 5

WHETHER EXCEPTION 2 OF SECTION 375 OF THE INDIAN PENAL CODE

LEGALIZES MARITAL RAPE AND VIOLATES THE FUNDAMENTAL RIGHTS OF
MARRIED WOMEN UNDER ARTICLE 14, ARTICLE 19 AND ARTICLE 21 OF THE
CONSTITUTION OF INDIA?

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SUMMARY OF ARGUMENTS

Whether the present petition is maintainable?

It is humbly submitted before this Hon’ble Court that the writ petition submitted by the
petitioners is not maintainable. The petitioners' writ petition is not maintainable. There is no
infringement of a fundamental right as a result of the implementation of the impugned
ordinance, therefore the petition is frivolous.

Whether Section 9, 13 (1-a) (ii) of The Hindu Marriage Act, 1955 and Order XXI Rule 32
and 33 of The Code of Civil Procedure, 1908 is ex facie arbitrary and violates the
fundamental rights under Article 14, 19 (1) (d) and 21 of The Constitution of India?

It is the humble submission before the Hon’ble Court that the current issue, which includes the
provisions for restitution of conjugal rights included in Sections 9 and 13(1-A) (ii) of the Hindu
Marriage Act, 1955, is not in conflict with the idea of basic rights provided by Articles 14,
19(1) (d), and 21 of the Indian Constitution.

Whether a decree of Restitution of Conjugal Rights violates the Right of Privacy, Right
of Mental and Physical Health and Right of Dignity of a Woman under Article 21 of the
Constitution of India?

It is the humble submission before the Hon’ble Court that Sec 9 of the HMA does not infringe
on a woman's right to privacy, mental and physical health, or dignity as guaranteed by Article
21 of the Indian Constitution.

Whether a decree for restitution of conjugal rights forbids a person to exercise her right
to decide whether to have sexual intercourse with his/her partner/spouse thus violating
her right to bodily integrity and spatial and behavioural privacy?

It is the humble submission before the Hon’ble Court that by dictating who a person should
live with, the remedy of restitution of conjugal rights does not violate a person's very basic
nature, their very being.
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Whether Exception 2 of Section 375 of the Indian Penal Code legalizes marital rape and
violates the fundamental rights of married women under Article 14, Article 19 and
Article 21 of the Constitution of India?

It is the humble submission before the Hon’ble Court that sexual intercourse without the
consent of the wife is not rape. The term "sexual intercourse without wife's consent" is
neither specified nor demonstrated in Section 375 IPC.
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ARGUMENTS ADVANCED

1. WHETHER THE PRESENT PETITION IS MAINTAINABLE?

It is the humble submission before the Hon’ble Court that the writ petition submitted
by the petitioner is not maintainable. The petitioners' writ petition is not maintainable.
This petition must be viewed as a violation of the legal process, a waste of very valuable
judicial time that should be utilized to deliver justice to the righteous. In view of the
following facts and legal concerns, this petition is not maintainable:

A. THAT THERE IS NO VIOLATION OF FUNDAMENTAL RIGHTS

A person's right to remedy under Article 32 is only enforceable if his basic rights have
been violated, and there is no right to remedy if no fundamental rights have been
violated. This court has ruled that the violation of fundamental rights is the sine qua
non of the exercise of rights conferred by Article 32 of the Constitution. 1

When considering a writ petition under Article 32, one of the first questions the Hon’ble
Court must evaluate is whether the petitioner's fundamental rights have been violated.
In Daryao v. State of U.P.2, it was held that: “the citizens are entitled to appropriate
relief under the provisions of Article 32 of the Constitution, provided it is shown to the
satisfaction of the Court that the Fundamental Right of the petitioner had been
violated.”

In A.K. Gopalan v State of Madras3 and Bhagwandas Gangasahai v. Union of India and
Ors.4, it was held that the remedy under Article 32 is available only for enforcement of
the Fundamental Rights.

"No person shall be deprived of his life or personal liberty except according to
procedure established by law," according to Article 21 of the Indian Constitution. It is
not a breach of the right under Article 21 when a legal procedure is followed.

1
Fertilizer Corporation Kamgar Union v. Union of India, AIR 1981 SC 344.
2
Daryao v. State of U.P AIR 1961 SC 1457.
3
A.K. Gopalan v State of Madras AIR 1950 SC 27.
4
Bhagwandas Gangasahai v. Union of India and Ors AIR 1956 SC 175.
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In The Collector of Malabar, Kozhikode and Ors.v Erimmal Ebrahim Hajee 5, it was
held that procedure established by law is one that is enacted by a union parliament or
state legislature, and it must be legally valid. If such a legislation is valid when someone
is deprived of his personal liberty, then such deprivation is lawful in that case, and he
cannot complain of a violation of his fundamental rights.

It is humbly submitted that the restitution petition is maintainable because the twoyear
period has not been completed; the wife left the house in 2017 and the restitution
petition was filed in July 2019; and under Section 125 CrPC, the wife is not entitled to
any maintenance from the husband if she refuses to live with him for no good reason.

2. WHETHER SECTION 9, 13 (1-A) (II) OF THE HINDU MARRIAGE ACT, 1955

AND ORDER XXI RULE 32 AND 33 OF THE CODE OF CIVIL PROCEDURE, 1908
IS EX FACIE ARBITRARY AND VIOLATES THE FUNDAMENTAL RIGHTS
UNDER ARTICLE 14, 19 (1) (D) AND 21 OF THE CONSTITUTION OF INDIA?
There were intense arguments in Parliament about whether the provision for restitution
of conjugal rights should be included in the Special Marriage Act of 1954 and the Hindu
Marriage Act of 1955. It's worth noting that, as a result of these case laws, the
constitutional legitimacy of section 9 of the Hindu Marriage Act 1955 had become a
subject matter of debate in 1983-1984.

• The constitutionality of the provision for conjugal restitution was contested in

the Andhra Pradesh High Court in Sareetha v. T. Venkatasubbaiah 6. In this case,
Sareetha stated that section 9 of the Act is likely to be knocked down as a
violation of India's basic rights, notably Articles 14 and 21 of Part III of the
Constitution. Section 9 is a cruel and barbarous remedy, according to Justice
Choudary, as it violates the right to privacy and human dignity established by
Article 21 of the Constitution. It denies women the right to choose when, when,
and how their bodies will be used to procreate another human being. The lady
loses control of her most personal choices. Therefore, a decision of restitution
of marital rights clearly violates the right to privacy protected by Article 21. As
a result the section 9 of Hindu marriage act 1955 was unconstitutional.

5
The Collector of Malabar, Kozhikode and Ors.v Erimmal Ebrahim Hajee 1957 AIR 688, 1957 SCR 970.
6
Sareetha v. T. Venkatasubbaiah, AIR 1983 AP 356.
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• Justice Rotagi in HarvinderKaur v Harminder Singh 7 , recognised that “the

legislature has created restitution of conjugal rights as an additional ground for
divorce”.
• In ShakilaBanu v. Gulam Mustafa 8, the Hon ble High Court observed: “The‟
concept of restitution of conjugal rights is a relic of ancient times when slavery
or quasi-slavery was regarded as natural. This is particularly so after the
Constitution of India came into force, which guarantees personal liberties and
equality of status and opportunity to men and women alike and further confers
powers on the State to make special provisions for their protection and
safeguard.”
• Ultimately Supreme Court in Saroj Rani v. Sudharshan 9, delivered a ruling that
was consistent with the Delhi High Court's views, upholding the constitutional
validity of Section 9 of the Hindu Marriage Act, 1955, and overturning the
verdict in Sareetha v. T. Venkatasubbaiah. Here are a few lines from the Saroj
Rani case decision.
The court observed that the object of the section is to bring about cohabitation
between estranged parties so that they can live together. That in the privacy of
home and married life neither article 21 nor article 14 has any place.

Hence, section 9, 13 (1-a) (ii) of the Hindu marriage act, 1955 and order xxi rule 32
and 33 of the code of civil procedure, 1908 is not ex facie arbitrary and does not
violates the fundamental rights under article 14, 19 (1) (d) and 21 of the Constitution
of India

3. WHETHER A DECREE OF RESTITUTION OF CONJUGAL RIGHTS

VIOLATES THE RIGHT OF PRIVACY, RIGHT OF MENTAL AND PHYSICAL
HEALTH AND RIGHT OF DIGNITY OF A WOMAN UNDER ARTICLE 21 OF THE
CONSTITUTION OF INDIA?
It is humbly submitted that the decree of restitution does not infringe the right to privacy
or dignity. If the individual who has withdrawn from society, it presents a fair cause and

7
HarvinderKaur v Harminder Singh, AIR 1984 Delhi 66
8
ShakilaBanu v. Gulam Mustafa, AIR 1971 Bom 166, 1970
9
Saroj Rani v. Sudharshan,1984 AIR 1562
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absolves himself of the task of adequately defending himself, the petitioner will be
denied the decree of restitution.

In view of the aforementioned circumstances, it is clear that it does not infringe on the
right to privacy, which is an integral part of Article 21, because the sole purpose of
marriage is to cohabit and live with one another and complete one another. In a situation
where one spouse abandons the other without any just reason, it is against the institution
of marriage and its stability. As a result, restitution is a vital provision to give marriage
one more try before concluding that it is beyond restoration and divorce is the only
option.

As a result, it is most humbly submitted to the Hon'ble Court that Exception 2 to Section
375 IPC provides the institution of marriage privacy. The right to life does not
presuppose unlimited liberty, and it can be limited to a fair extent if justified. The object
isto preserve the sacred institution of marriage. Hence, it is most humbly submitted that
the impugned Section is consistent with Article 21 of the Constitution.

Taking into account the the above arguments, it can be concluded that in a situation
where two people's fundamental rights conflict, the right that would advance public
morality or the public interest would be enforced solely through the judicial process,
because moral considerations cannot be ignored.10

4. WHETHER A DECREE FOR RESTITUTION OF CONJUGAL RIGHTS

FORBIDS A PERSON TO EXERCISE HER RIGHT TO DECIDE WHETHER TO
HAVE SEXUAL INTERCOURSE WITH HIS/HER PARTNER/SPOUSE THUS
VIOLATING HER RIGHT TO BODILY INTEGRITY AND SPATIAL AND
BEHAVIORAL PRIVACY?
In the 19th century, India accepted British common law's remedy of recovery of marital
rights. Wives were regarded as the property of their husbands at the time. In 1947, an
enactment in the United Kingdom banned the same remedy. The remedy of
constitutional right restoration has been contested multiple times since then.

In the case of T. Sareetha v. T.V. Subbaiah11, the court opined that section 9 is in violation
of Article 21 of the Constitution. Section 9 was held to be unconstitutional, being the
grossest form of violation.

10
Mr.X v. Hospital Z, (1998) 8 S.C.C. 296.
11
T. Sareetha v. T.V. Subbaiah, AIR 1983 AP 356.
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In the case of HarvinderKaur v. Harmander Singh12, the wife had challenged the decree
granted to husband by the lower court, the court held that section 9 was constitutionally
valid, and the appeal was dismissed. Basically, the latter case was of opposite opinion
on the issue of the constitutionality of section 9.

After the two abovementioned cases were decided, the Hon’ble Supreme Court held in
the case of Saroj Rani v. Sudarshan Kumar 13, “where a wife had applied for restitution
after being turned out from the house, it was held that section 9 is constitutional. The
purpose of this section is to offer to induce husband and wife to live together and settle
their disputes in a friendly manner.”

The Andhra Pradesh High Court ruled that enforcing a section 9 decree compels a person
to have sexual relations with her spouse, robbing her of sovereignty over her own body.
but the Delhi High Court criticized this view and held that the impugned section aimed
at “consortium” and not at “cohabitation”. “Consortium” has been defined as
“companionship, love, affection, comfort, mutual services, sexual intercourse”. The
Delhi High Court held that sexual relations are not the ultimate goal of a marriage and
that restitution of conjugal rights aims only at compelling the parties to a marriage to
live in the same household and does not compel them to have sexual intercourse.

The decree does not violate bodily integrity and spatial and behavioural privacy.

12
HarvinderKaur v. Harmander Singh, AIR 1984 Delhi 66. 13
Saroj Rani v. Sudarshan Kumar, 1984 AIR 1562.
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5. WHETHER EXCEPTION 2 OF SECTION 375 OF THE INDIAN PENAL

CODE LEGALIZES MARITAL RAPE AND VIOLATES THE FUNDAMENTAL
RIGHTS OF MARRIED WOMEN UNDER ARTICLE 14, ARTICLE 19 AND
ARTICLE 21 OF THE CONSTITUTION OF INDIA?
It is humbly submitted before this Hon’ble court having sexual relations with your wife
without her consent is not rape. The word "sexual intercourse without wife's permission"
is not defined or shown in Section 375 IPC.

Therefore, rape under section 375 is only committed if the conduct falls inside one of
the seven exceptions to the statute. To begin with, it was against her will; Second,
without her permission; Third, obtaining her agreement by instilling dread of death in
her; Fourth, permission is provided under the mistaken impression that another man is
her lawfully wedded spouse; Fifth, when permission is provided due to insanity,
alcoholism, or other factors; Sixth, with or without her consent, if she is under the age
of sixteen, and seventh, if she is unable to communicate her consent.

It is respectfully submitted before this Hon’ble bench that Section 375 of the IPC divides
women into two groups: married and unmarried women. Art. 14 forbids class legislation
and any categorization that is not acceptable for legislative objectives. 13 If the legislature
takes care to fairly classify people for legislative purposes and treats all members of a
well-defined group similarly, it cannot be accused of denial of equal protection on the
basis that the legislation does not apply to others.14

Thus, it is humbly submitted in the light of these judgments that a married and unmarried
lady cannot get the same treatment. Furthermore, if forcible intercourse is classified as
rape, it will be used arbitrarily against males, violating Article 15 of the Constitution. As
a result, it is respectfully urged to this Honble bench that Section 375 of the IPC
establishes a legitimate distinction between married and unmarried women.
As a result, it does not violate Article 14 of the Indian Constitution.

13
Budhan v. State of Bihar (1955) 1 S.C.R 1045 (India).
14
State of INDIA.B v. Anwar Ali (1952) S.C.R 284 (India).
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PRAYER

WHEREFORE, in light of the facts stated, issues raised, arguments advanced and authorities
cited, the counsel for the respondent humbly prays that this Hon’ble Court be pleased that:

• This present petition is not maintainable

• It does not violate the fundamental rights under Article 14 and Article 21 of the
Constitution of India

AND/OR pass any other order/orders as this Hon’ble Court deems fit and proper in the
circumstances of the given case and in the light of Justice, Equity and Good Conscience and
thus renders justice.

And for this act of kindness and justice the Counsel shall be duty bound and forever pray.

All of which is most humbly and reverently submitted.

COUNSEL FOR THE RESPONDENT