Team Code: TC_39P

BEFORE THE HON’BLE SUPREME COURT OF

SINDHIA

IN THE MATTERS OF

INDIAN ORTHODOX FEMINIST ORGANIZATION PETITIONER

V.

UNION OF SINDHIA RESPONDENT

ON SUBMISSION TO THE HON`BLE SUPREME COURT OF SINDHIA

UNDER ARTICLE 136 OF CONSTITUTION OF SINDHIA

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

THE MEN’S PROGRESSIVE ALLIANCE PETITIONER

V.

UNION OF HILLWOOD RESPONDENT

ON SUBMISSION TO THE HON`BLE SUPREME COURT OF SINDHIA

UNDER ARTICLE 32 OF CONSTITUTION OF SINDHIA

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

COUNSEL APPEARING ON BEHALF OF THE PETITIONER

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 TABLE OF CONTENTS

TABLE OF ABBREVIATIONS 4-5

INDEX OF AUTHORITIES

I. CASE LAWS 6-7

II. JOURNALS 7-8

III. BOOKS 8

IV. LEXICONS 8

V. WEBSITES 9

VI. LEGISLATIONS AND REGULATIONS 9-10

STATEMENT OF JURISDICTION 11

STATEMENT OF FACTS 12-13

STATEMENT OF ISSUES 14

SUMMARY OF ARGUMENTS 15-16

ADVANCED ARGUMENTS 17-29

PRAYER 30

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 LIST OF ABBREVIATIONS

S.N ABBREVIATION FULL FORM

O
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.

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 INDEX OF AUTHORITIES
I. CASE LAWS

S.NO TITLE CITATION

1. Yusuf Abdul Aziz v. State of Bombay and Husseinbhoy
Laljee
2. Rustom Cavasjee Cooperative v. Union of India
3. State v. Shri Ambika Mills
4. State of Kerala & Anr vs N. M. Thomas & Ors
5. M. R. Bajali and Others v. State of Mysore
6. State of Mysore v. V. P. Narasinga Rao

7. Pathumma and Others vs State Of Kerala And Others

8. Old Dearborn Distributing Co. v. Seagram Distillers Corpn

9. Charanjit Lal Chowdhury v. Union of India

10. Ram Krishna Dalmia v. S.R. Tendolkar

11. State of Gujarat and Anr. etc. v. Shri Ambica Mills

Ltd. Ahmedabad

12. Government of Andhra Pradesh v. P.B.

Vijayakumar and Anr

13. Budhadev Karmaskar vs State Of West Bengal

14. Dinesh v. State of Rajasthan

15. Shri Bodhisattwa Gautam vs Miss Subhra

Chakraborty
16. Noor Aga vs State Of Punjab & Anr

17. Vishnu Dutt Sharma vs Daya Sapra

18. State Of West Bengal vs Mir Mohammad Omar &

Ors

19. Shambu Nath Mehra vs. The State of Ajmer

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20. M/s. Seema Silk & Sarees & Anr. v. Directorate of
Enforcement & Ors

21. M.S. Narayana Menon v. State of Kerala

22. The State Of Punjab vs Gurmit Singh & Ors

23. Bharwada Bhoginbhai Hirjibhai vs State Of Gujarat

24. Rameshwar v. The State of Rajasthan

25. Vishnu v. State of Maharashtra

26. State (NCT of Delhi) v. Pankaj Choudhary

27. Bhajan Singh alias Harbhajan Singh and others v.

State of Haryana

28. Gurcharan Singh v. State of Haryana

29. Madho Ram and another v. State of U.P

30. Moti Lal vs. State of U.P

31. Nipun Saxena vs Union Of India Ministry Of Home

32. Nivedita Jha v. State of Bihar

33. Aju Varghese v. State of Kerala

34. Bhupinder Sharma v. State of Himachal Pradesh

35. Koppula Venkat Rao vs State Of Andhra Pradesh

36. The New India Assurance Company ... vs Somwati

37. Rajesh v. Rajbir Singh

38. Prabha Tyagi vs Kamlesh Devi

39. Dastane v. Dastane

40. Rita Nijhawan vs. Balkrishan Nijhawan

41. Shobha Rani vs. Madhukar Reddi

42. Jayanti Rani Panda v. State of West Bengal & Anr

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 43.
44.
45.
46.
47.
48.
49.
50.
51.
52.
53.
54.
55.
II. JOURNALS

1 All India Reporter(AIR)

2 Supreme Court Cases (SCC)

3 Supreme Court Reporter(SCR)

III. BOOKS REFRRED

IV. LEXICONS

1 Henry Campbell Black - Black’s Law Dictionary

V. WEBSITES

1 www.sconline.in

2 www.manupatra.in

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 3 www.judis.nic.in

4 www.indiankanoon.org

VI. REFERRED LEGISLATION AND REGULATIONS

A) LEGISLATIONS

1 THE CONSTITUTION OF INDIA, 1950.

2 THE INDIAN PENAL CODE, 1860.

B) INTERNATIONAL REGULATIONS & CONVENTIONS :

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 ST
ATEMENT OF JURISDICTION

The petitioner most humbly approached the Hon’ble Supreme Court of Sindhia under
I. Art.136 of the Constitution of Sindhia in the case of Indian Orthodox Feminist
Organization v. Union of Sindhia
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any cause
or matter passed or made by any court or tribunal in the territory of India.

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to
the Armed Forces.

II. Art.32 of Constitution of Sindhia in the case of The Men’s Progressive Alliance v. Union
of Sindhia

(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 in the nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto and
Certiorari, whichever may be appropriate, for the enforcement of any of the rights
conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution

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 STATEMENT OF FACTS

BACKGROUND

The Union of Sindhia is a democratic country in Asia, which acquired independence from the
Kingdom of Britannia in 1885. The People’s Reformative Alliance (PRA) party formed a
coalition government in 2022 with the support of Ranveer Lohia, an independent member.

RANVEER’S ROLE IN AMENDMENT

Ranveer Lohia, a law student, who had completed masters abroad, was deeply concerned about
the discrepancies in the domain of criminal justice, intellectual property rights, and civil law, so
he was keen to elevate the laws to international standards, that he introduced a bill to amend
Section 354 and 375 of the Sindhian Penal Code, 1860 to promote gender neutrality. The
proposed amendment was approved by both houses of parliament since, the law commission had
also previously suggested that laws need to be gender-neutral.

PHYSICAL ASSAULT ON ELIJAH

Elijah, a US national, who visited the country to acquaint himself with the Eastern philosophy,
interacted with Jigyasa Kaur, a self-proclaimed clairvoyant and aura cleanser, who preplanned
and scheduled a meeting at midnight in a secluded part of Anjuna Beach, where he was brazenly
violated sexually by a group of five women, including Jigyasa. After the unholy act of forcible
Union, Elijah was left to fend for himself, and at dawn, some people rushed him to St. Thomas
Hospital.

INVESTIGATION OF CRIME

Police was summoned and registered a complaint. The medical examination and various pieces
of circumstantial evidence including the testimony of Jacob D’sa a taxi driver showcased the
indulgence and participation of Jigyasa and others in the crime.

REVOCATION OF DOCTRINE OF REVERSE BURDEN

Prior to this incident, owing to the large number of false sexual assault cases being filed, the
government of Sindhia decided to remove the Doctrine of Reverse Burden under Section 114A
of the Sindhian Evidence Act, 1872.

ALLEGATION

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Jigyasa Kaur and her entourage were charged with offences punishable under Sections 354 and
375. In response to the Arrest of five women for these offences, the ‘Indian Orthodox Feminist
Organization,’ a Neo-Orthodox NGO focusing on women’s empowerment, filed a Writ Petition
challenging the Amended provisions, claiming that they violated Articles 14 and 15 of the
Constitution of Sindhia.

TRIAL

However, the High Court dismissed the Writ Petition and espoused that the accused persons,
being women and Members of a weaker section of society, were protected under Article 15(3) of
the Constitution of Sindhia.

JUDGMENT

Finally the jurisdictional court ordered the accused to pay an interim compensation of 20 lakh
rupees each to the victim and the accused promptly paid this pro tem compensation to the victim.

APPEAL

The ‘Indian Orthodox Feminist Organization’ approached the Supreme Court and another NGO
named ‘The Men’s Progressive Alliance,’ which caters to men’s Empowerment, upon learning
that the newly amended provisions of the Sindhian Penal Code,1860, have excluded the
exception clause for Section 375, got enraged and filed a Writ Petition in the Supreme Court of
Sindhia. It espoused that such an exclusion is unjust and totally biased against men.

Now, the said matters are set out for final disposal before the Hon’ble Supreme Court of Sindhia,
wherein the said issues are stated to be adjudicated by the Hon’ble Supreme Court.

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 STATEMENT OF ISSUES

ISSUE 1: WHETHER THE AMENDED SECTION 354 AND 375 OF THE SINDHIAN

PENAL CODE, 1860, ARE VIOLATIVE OF ARTICLE 14 AND 15 OF THE

CONSTITUTION OF SINDHIA?

ISSUE 2: WHETHER THE JURISDICTION COURT IS JUSTIFIED TO LEVY PRO

TEM COMPENSATION BASED ON THE FACTS AND PROCEED WITH THE TRIAL

IN VIEW OF THE CONSTITUTION OF SINDHIA?

ISSUE 3: WHETHER THE REMOVAL REVERSE BURDEN OF PROOF WILL

VIOLATE ARTICLE 21 OF SINDHIAN CONSTITUTION?

ISSUE 4: WHETHER THE REMOVAL OF EXPECTION FOR MARITAL RAPE IS

VIOLATIVE OF FUNDAMENTAL RIGHTS AND DOES THE CRIMINAL LAW

AMENDMENT ACT,2022 IS CONSITUTIONALLY VALID?

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 SUMMARY OF ARGUMENTS

ISSUE 1: WHETHER THE AMENDED SECTION 354 AND 375 OF THE SINDHIAN
PENAL CODE, 1860, ARE VIOLATIVE OF ARTICLE 14 AND 15 OF THE
CONSTITUTION OF SINDHIA?

It is most humbly submitted that the Amended provision violates the basic rights of women in
the society, thereby contradicting the reasonable classification guaranteed under Art.14, at the
same time, it infringes the special status of women guaranteed under Art.15(3). Therefore the
Amended Sections 354 and 375 of SPC, 1860, violates Art.14 and 15 of Sindhian Constitution
on the pretext of Gender Neutrality.

ISSUE 2: WHETHER THE JURISDICTION COURT IS JUSTIFIED TO LEVY PRO

TEM COMPENSATION BASED ON THE FACTS AND PROCEED WITH THE TRIAL
IN VIEW OF THE CONSTITUTION OF SINDHIA?

It is most humbly submitted that the levy of Pro Tem compensation for the victim is against the
law laid down in Sec.357(2) and 357A of Cr.P.C, since in the present case, there is no substantial
sentence imposed on the accused, moreso, when the appeal filed by the NGO is pending before
the Hon’ble Apex Court. Hence before any successful conviction, it is wrong on the part of the
Jurisdictional Court to impose the compensation on the accused, simply based on facts which is
in gross violation of Sec.357A of CPC.

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ISSUE 3: WHETHER THE REMOVAL REVERSE BURDEN OF PROOF WILL

VIOLATE ARTICLE 21 OF SINDHIAN CONSTITUTION?

ISSUE 4: WHETHER THE REMOVAL OF EXPECTION FOR MARITAL RAPE IS

VIOLATIVE OF FUNDAMENTAL RIGHTS AND DOES THE CRIMINAL LAW
AMENDMENT ACT, 2022 IS CONSITUTIONALLY VALID?

It is most humbly submitted before this Hon’ble Supreme Court of Sindhia that the removal of
Marital rape along with the Gender Neutral amendment by inclusion of ‘Any Person’ will lead to
an increase in domestic violence against women. Moreover the modification of the term ‘Rape’
into ‘Sexual Assault’ in Sec.375 will reduce the gravity of the offence by widening the concept
of rape on par with Sec.354, which deals with assault. Hence the Criminal Law Amendment Act,
2022 will violate the privacy of both Men and Women as guaranteed under Art.21 of Sindhian
Constitution.

ARGUMENTS ADVANCED

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ISSUE 1: WHETHER THE AMENDED SECTION 354 AND 375 OF THE SINDHIAN
PENAL CODE, 1860, ARE VIOLATIVE OF ARTICLE 14 AND 15 OF THE
CONSTITUTION OF SINDHIA?

It is most humbly submitted before this Hon’ble Supreme Court that the amendment to Sec.354
and 375 through the Criminal Amendment Act, 2022 is violative of the basic rights of women,
which is guaranteed under Art.14 and 15(3) of the Constitution of Sindhia. Though, it is alleged
that the objective of the amendment is to bring equality among all individuals, in reality, the law
makers have failed to recall the past evil experiences of the women in the hands of men, in all
forms of cruelty, from domestic violence to rape. Further it is pertinent to note that, in general,
men are dominant in many social aspects, when compared to women and the Union of Sindhia
has witnessed numerous discrimination and injustices towards women. Hence it is unfair to
compare a male with a female in terms of Section 354 and 375, so the amendment has failed to
satisfy the concept of “equal should be treated be equally and unequals unequally”.

I.1 VIOLATION OF ART.14

It is most humbly presented before this Hon’ble Supreme Court of Sindhia that Art.14 lucidly
states that “The State shall not deny to any person equality before the law or the equal protection
of the laws within the territory of India”. A mere cursory reading of Art.14 makes it crystal clear
that equality can be divided into two aspects, that is equality before the law or the equal
protection of the laws. So the second part goes to show that it does not mean that the same law
should apply to all persons or that every law must have an universal application within the
country irrespective of difference of circumstances.

Article 14 has been discussed in a series of judgments which are as follows:

In Yusuf Abdul Aziz v. State of Bombay and Husseinbhoy Laljee , “Sex was held to be a
permissible classification. While dealing with this aspect of the matter this Court observed thus:
"Article 14 is general and must be read with the other provisions which set out the ambit of
fundamental rights. Sex is a sound classification and although there can be no discrimination in

14
general on that ground, the Constitution itself provides for special provision in the case of
women and children. The two articles read together validate the impugned clause in Section
497 of the Indian Penal Code1." In Rustom Cavasjee Cooperative v. Union of India, the Apex
Court held that by Article 14 of the Constitution, the State is enjoined not to deny to any person
equality before the law or the equal protection of the laws and the said Article forbids class
legislation, but not reasonable classification in making laws and (i) such reasonable classification
must be founded on an intelligible differentia distinguishing persons, transactions or things
grouped together from others left out of the group; and (ii) the differential has a rational relation
to the object sought to be achieved by the Act. In other words, there must be a nexus between the
basis of classification and the object of the Act2. The Hon’ble Supreme Court in State v. Shri
Ambika Mills, held that reasonable classification includes every person who is similar with
respect to the purpose of the law. The classification should be based upon intelligible differentia
which differentiates between which are grouped and which are not from others. This differential
must have a rational nexus with the purpose of the law3. Similarly, in State of Kerala & Anr vs
N. M. Thomas & Ors, it was held that both Articles 14 and 16(1) permit reasonable
classification having a nexus to the objects to be achieved4. In M. R. Bajali and Others v. State
of Mysore, it was fairly observed that there is no denial of equality of opportunity unless the
person who complains of discrimination is equally situated with the person or persons who are
alleged to have been favoured5. Likewise, in State of Mysore v. V. P. Narasinga Rao, it was
observed that this equality of opportunity need not be confused with absolute equality6. In
Pathumma and Others vs State Of Kerala And Others, it was observed that Equality before
Law does not mean that the same set of laws should apply to all persons under every
circumstance ignoring differences and disparities between men and things7”. In Old Dearborn
Distributing Co. v. Seagram Distillers Corpn., it was held that it only means that all persons
similarly circumstanced shall be treated alike both in privileges conferred and liabilities

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imposed 8. In Charanjit Lal Chowdhury v. Union of India it was held that “It can be taken to
be well settled that the principle underlying the guarantee in Article 14 is not that the same rules
of law should be applicable to all persons within the Indian territory or that the same remedies
should be made available to them irrespective of differences of circumstances9 In Dalmia case,
Ram Krishna Dalmia v. S.R. Tendolkar, it was said that the two tests of classification were
first that there should be an intelligible differentia which distinguished persons or things grouped
from others left out and secondly the differentia must have a rational relation to the object sought
to be achieved by the statute”10

APPLICATION OF REASONABLE CLASSIFICATION

INTELLIGIBLE DIFFERENTIA

In the case in hand, the history of Sindhia has seen lot of women rape victims and hence women
are considered as a vulnerable group of people. But as per the Law Commission, it is absolutely
new for the Union of Sindhia to deal with a male rape victim and it is for the first time that such
a case has found place in the records of the Court. So based on this single instance, it cannot be
concluded that men would be jeopardized as in the case of women. Moreover, there is no iota of
evidence that men get shattered drastically, either physically, psychologically or medically due to
such incidents.

RATIONAL NEXUS

It clearly creates a difference between men and women, when it comes to medical complexity
undergone by women, who suffer severe and serious health impacts when compared to men,
because even though men get affected both mentally and psychologically, still the trauma
suffered by men cannot be placed on the same footing as that of women.

In State of Gujarat and Anr. etc. v. Shri Ambica Mills Ltd. Ahmedabad, it was held that
Equality is violated if it rests on an unreasonable basis. The concept of equality has an inherent
limitation arising from the very nature of the constitutional guarantee. Those who are similarly
8

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circumstanced are entitled to equal treatment. Classification is to be founded on substantial
differences which distinguish persons grouped together from those left out of the groups and
such differential attributes must bear a just and rational relation to the object sought to be
achieved11.

1.2 VIOLATION OF ART.15

It is most humbly submitted before this Hon’ble Supreme Court of Sindhia that Art.15 speaks
about “Prohibition of discrimination on the grounds of religion, race, caste, sex or place of
birth”. So, in view of the above Article, it can be ascertained that no individual can be
discriminated before the law. In this present case, an amendment has been brought in the name of
“Gender Neutrality” to eliminate inequality towards men and the persons of LGBTQ, but they
failed to safeguard the concept of “Equal treatment to inequals is inequality”. It cannot be denied
that women have faced and are still facing lot of discrimination and exploitation, for centuries,
and the land of Sindhia is no exception to it. Nevertheless, the Union has enacted various Govt.
policies and safety measures towards women empowerment, and so it is an admitted fact by the
Government itself that its women are not getting proper safety and opportunities, in its land. In
the case of Government of Andhra Pradesh v. P.B. Vijayakumar and Anr., it was discussed
that the insertion of Clause (3) of Article 15 in relation to women is a recognition of the fact that
for centuries, women of this country have been socially and economically handicapped. As a
result, they are unable to participate in the socio-economic activities of the nation on a footing of
equality. It is in order to eliminate this socio-economic backwardness of women and to empower
them in a manner that would bring about effective equality between men and women that Article
15(3) is placed in Article 15, its object is to strengthen and improve the status of women. An
important limb of this concept of gender equality is creating job opportunities for women. To say
that under Article 15(3), job opportunities for women cannot be created would be to cut at the
very root of the underlying inspiration behind this Article. Making special provisions for women
in respect of employment or posts under the State is an integral part of Article 15(3)12.While
considering the scope of Articles 14, 15 and 16 and the special provision for women, the Apex
11

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Court in Government of. Andhra Pradesh v. P.B. Vijayakumar and Anr. held thus: The
interrelation between Articles 14, 15 and 16 has been considered in a number of cases by this
Hon’ble Court. Article 15 deals with every kind of State action in relation to the citizens of this
country. Every sphere of activity of the State is controlled by Article 15(1). There is therefore no
reason to exclude from the ambit of Article 15(1) employment under the State. At the same
time Article 15(3) permits special provisions for women. Both Articles 15(1) and 15(3) go
together13. In Budhadev Karmaskar vs State Of West Bengal, the Hon’ble Court upheld the
significance of the UJWALA Scheme which has five components utilized for rehabilitation of
sex workers. The Hon’ble Justice also pointed out that if the sex workers do not wish to go back
home, then another program called STEP is available for them which is being implemented by
the Central Government effectively. She pointed out that poverty is the main factor which pushes
vulnerable women to prostitution14. In Satish Chander Ahuja vs Sneha Ahuja, it was held that the
progress of any society depends on its ability to protect and promote the rights of its women.
Guaranteeing equal rights and privileges to women by the Constitution of India had marked the
step towards the transformation of the status of the women in this country. The domestic
violence in this country is rampant and several women encounter violence in some form or the
other or almost every day, however, it is the least reported form of cruel behavior. A woman
resigns her fate to the never-ending cycle of enduring violence and discrimination as a daughter,
a sister, a wife, a mother, a partner or a single woman in her lifetime. This non-retaliation
by women coupled with the absence of laws addressing women’s issues, ignorance of the
existing laws enacted for women and societal attitude makes the women vulnerable15. While
considering the scope of Articles 14, 15 and 16 and the special provision for woman, the Apex
Court in Government of Andhra Pradesh v. P.B. Vijayakumar and Anr. held thus: The
interrelation between Articles 14, 15 and 16 has been considered in a number of cases by this
Court. Article 15 deals with every kind of State action in relation to the citizens of this country.
Every sphere of activity of the State is controlled by Article 15(1). There is therefore no reason
to exclude from the ambit of Article 15(1) employment under the State. At the same time Article
15(3) permits special provisions for women. Both Articles 15(1) and 15(3) go together. The

13

14

15

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Court also observed that the alarming frequency of crimes against women had led Parliament to
make some special laws in the background that rape was a very serious offence and that this was
another factor which was to be kept in mind while appreciating the evidence in such matters.

ROLE AND APPLICATION OF ART.15(3)

It is earnestly submitted before this Hon’ble Supreme Court of Sindhia that Art.15(3) should be
considered over and above Art.15(1). Art.15(3) states that “Nothing in this article shall prevent
the state from making any special provision for women and children”. So as per Art.15(3), the
State can very well discriminate in favour of women against men, but it may not discriminate in
favour of men against women. Hence it is the foremost duty of the State to protect the basic
human rights and privileges given to women. In this present case, it could very well be seen that
the amended provision will discriminate the rights of women since the Criminal Law
Amendment Bill, 2022 has been enacted only to enforce Gender neutrality. The law makers have
ignored the adverse impacts of the law on women, both mentally and physically. Moreover
without conducting a proper and detailed survey on male rape victims, Mr. Ranveer Lohia has
used his influence and with the data of male rape victims of the European countries, they have
came to a conclusion, and without considering the status of women at present, in our society, the
bill has been passed.

ISSUE 2: WHETHER THE JURISDICTION COURT IS JUSTIFIED TO LEVY PRO

TEM COMPENSATION BASED ON THE FACTS AND PROCEED WITH THE TRIAL
IN VIEW OF THE CONSTITUTION OF SINDHIA?

It is most humbly submitted before this Hon’ble Supreme Court of Sindhia that the Jurisdiction
Court has erred in levying Pro Tem compensation based on the facts. It is well settled law that it
is the duty of the state to grant interim compensation to the victims and they can recover the
same from the accused only if the crime is proved. Even as per Sec.357(2) of Cr.P.C. it is
explicit that “If the fine is imposed in a case which is subject to appeal, no such payment shall be
made before the period allowed for presenting the appeal has elapsed, or, if an appeal be
presented, before the decision of the appeal.” Similarly, S.357A of Cr.P.C. also enumerates only
the principles for the victim compensation scheme and nowhere it is stated that it is for the

19
accused to pay the interim compensation to the victim, pending trial. In the present case, when
the appeal filed by the NGO is pending, and the judgment has not been pronounced that the
accused is guilty of the offence, the levying of Pro Tem compensation is in blatant violation of
law. Moreover, the prosecution has failed to frame the charges properly, as is evident from the
fact that the accused are being tried under S.375 of S.P.C rather than S.376.

Coming to the quantum of compensation, it is an arbitrary exercise of power by the jurisdictional

court when it has not recorded any reasons for fixing such a huge amount as per its whims and
fancies. It is well settled under S.357 of Cr.P.C., that the trial court is empowered to award
compensation only on conclusion of trial. While being so, fixation of such a compensation is
unfair and unjust on the face of it.

ISSUE-3 WHETHER THE REMOVAL OF REVERSE BURDEN OF PROOF IS

VIOLATIVE OF ARTICLE 21 OF THE CONSTITUTION OF SINDHIA?

It is respectfully submitted before this Hon’ble Supreme Court of Sindhia that the removal of
reverse burden of proof will abridge the special status of a rape victim guaranteed by the Apex
Court after the Nirbaya rape case. Moreover the revocation of onus propandi will violate Art.21
of the Sindhian Court because in the land of Sindhia, survivors of rape face many barriers in
obtaining justice and vital support services. Women and girls who survive sexual violence often
suffer humiliating treatment in the hands of the police, courts and medical professionals. They
are also at risk of experiencing inadequate protection. The lack of support and justice for victims
and witnesses during criminal trials has created an aversion in the mind of most of the victims
that they are even scared to reveal the injustice done to them. In Dinesh v. State of Rajasthan,
the Supreme Court has once again emphasized that the victim of a rape is not an accomplice.
Corroboration is not the sine qua non for conviction in a rape case. To insist upon corroboration
in the Indian setting amounts to adding insult to injury. In Shri Bodhisattwa Gautam vs Miss
Subhra Chakraborty, it was observed that “Unfortunately, a woman, in our country, belongs to
a class or group of society who are in a disadvantaged position on account of several social
barriers and impediments and have, therefore, been the victim of tyranny at the hands of men
with whom they, fortunately, under the Constitution enjoy equal status. A large number of
women still fail to report rapes to the police because they fear embarrassing and insensitive

20
treatment by the doctors, the law enforcement personnel and/or the cross-examining defence
attorneys.”

1.1 ONUS PROPANDI IS A SINE QUA NON IN RAPE CASES

It is most humbly presented before this Hon’ble Supreme Court of Sindhia that the removal of
reverse burden of proof will affect the mental status of the rape victim as explained by NCBI
“sexual violence (SV) is an urgent public health issue that is common and has lifelong effects on
health”. Moreover shifting the burden on the victim, will add to her pain and agony, and the
victim who has already undergone cruelty and psychological disturbance cannot be expected to
prove the crime beyond reasonable doubt. But keeping in view, the number of false rape cases,
the amendment has been brought by revoking the Onus Propandi under Sec.114A SEA, 1872. So
it is not just to cause injustice to the rape victims, simply on the basis of the number of false
cases. Likewise, even in the present case it is an admitted fact that Elijah has undergone sexual
violence and the consequential medical examination has confirmed the same. While being so, he
cannot be expected to undergo another trauma of proving the case beyond doubt, so that it would
facilitate the accused to take undue advantage of the situation and indulge in crimes, one after
another, unfettered. It has been reiterated in several verdicts that even after the 2012 amendment
which disallowed the defense to question the prosecution about her past sexual conduct for
determination of commission of rape, still the two finger test pave way to the same thing. Still
there is no proper Govt. body to monitor the regulations made by the Law Commission, in such a
situation, it can never be ascertained that the rape victim will be entitled to justice without any
barriers. Enforcement of law, on the one hand and protection of citizen from operation of
injustice in the hands of the law enforcement machinery, on the other, is, thus, required to be
balanced. In Noor Aga vs State Of Punjab & Anr, it was held that the constitutionality of a
penal provision placing burden of proof on an accused, thus, must be tested on the anvil of the
State's responsibility to protect innocent citizens. The Court must assess the importance of the
right being limited to our society and this must be weighed against the purpose of the limitation.
The purpose of the limitation is the reason for the law or conduct which limits the right. In
Vishnu Dutt Sharma vs Daya Sapra, it was observed that “In a criminal proceeding, although
upon discharge of initial burden by the complainant, the burden of proof may shift on an

21
accused, the court must apply the principles of `presumption of innocence as a human right'. The
statutory provisions containing the doctrine of reverse burden must therefore be construed
strictly.” In State Of West Bengal vs Mir Mohammad Omar & Ors, it was held that The
pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused
should not be taken as a fossilised doctrine as though it admits no process of intelligent
reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the
temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the
prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences
would be the major beneficiaries, and the society would be the casualty. The judgment In
Shambu Nath Mehra vs. The State of Ajmer, clearly laid down the general rule that in a
criminal case the burden of proof is on the prosecution and section 106 is certainly not intended
to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in
which it would be impossible, or at any rate disproportionately difficult for the prosecution to
establish facts which are 'especially' within the knowledge of the accused and which he could
prove without difficulty or inconvenience. The word 'especially' stresses that. It means facts that
are pre-eminently or exceptionally within his knowledge."

1.2 CORROBORATION IS NOT THE SINE QUA NON FOR CONVICTION IN A RAPE
CASE

It is most humbly submitted before this Hon’ble Supreme Court of Sindhia that, no doubt, the
land of Sindhia has a history of innumerable false sexual assault cases, resulting in the
amendment of Section 114 SEA, 1864 by removing the doctrine of Onus Propandi. Even
assuming that it is in consonance with the prevailing situation, the amendment cannot be a
complete resolution to the said issue because if the burden of proof falls on the prosecution side,
still there would be a lot of possibilities that the victim takes advantage of the situation and prove
the case by false accusation, as there are least chances for direct evidence in these cases. That
apart, if it is going to be a false accusation, then nothing can prevent the prosecution from having
a clear-cut plan to fabricate the evidence and utilize the situation of scarce evidence against the
accused, so it is better to have the burden of proof on the accused, so, at least they can get an
opportunity to rebut the presumption on the basis of the false accusations. In M/s. Seema Silk &

22
Sarees & Anr. v. Directorate of Enforcement & Ors. , it was held that A legal provision does
not become unconstitutional only because it provides for a reverse burden. In M.S. Narayana
Menon v. State of Kerala, where it was held that “Presumption is raised only when certain
foundational facts are established by the prosecution. The accused in such an event would be
entitled to show that he has not violated the provisions of the Act”. In The State Of Punjab vs
Gurmit Singh & Ors it was observed that the courts should find no difficulty to act on the
testimony of a victim of sexual assault alone to convict an accused where her testimony inspires
confidence and is found to be reliable. In Bharwada Bhoginbhai Hirjibhai vs State Of
Gujarat, it was observed that Corroboration is not the sine-quo-non for a conviction in a rape
case. In the Indian setting, refusal to act on the testimony of a victum of sexual assault in the
absence of corroboration as a rule, is adding insult to injury. Viewing the evidence of the girl or
the women who complains of rape or sexual molestation with the aid of spectacles fitted with
lenses tinged with doubt, disbelief or suspicion, is to justify the charge of male chauvinism in a
male dominated society. In Rameshwar v. The State of Rajasthan, it was reiterated that
“Corroboration may be considered essential to establish a sexual offence in the backdrop of the
social ecology of the Western World. It is wholly unnecessary to import the said concept on a
turn-key basis and to transplant it on the Indian soil regardless of the altogether different
atmosphere, attitudes, mores, responses of the Indian Society, and its profile. The identities of
the two worlds are different. The solution of problems cannot therefore be identical. It is
conceivable in the Western Society that a female may level false accusation as regards sexual
molestation against a male for several reasons. In Vishnu v. State of Maharashtra, it has been
held that “It is well-settled by a catena of decisions of this Court that there is no Rule of law or
practice that the evidence of the prosecutrix cannot be relied upon without corroboration and as
such it has been laid down that corroboration is not a Sine Qua Non for conviction in a rape case.
If the evidence of the victim does not suffer from any basic infirmity and the "probabilities
factor" does not render it unworthy of credence, as a general rule, there is no reason to insist on
corroboration except from medical evidence. The Hon'ble Supreme Court in the case of State
(NCT of Delhi) v. Pankaj Choudhary, has held that there is no rule of law or practice that the
evidence of the prosecutrix cannot be relied upon without corroboration. In Bhajan Singh alias
Harbhajan Singh and others v. State of Haryana, it was held: The testimony of an injured

23
witness has its own relevancy and efficacy as he has sustained injuries at the time and place of
occurrence and this lends support to his testimony that he was present at the time of occurrence.
Thus, the testimony of an injured witness is accorded a special status in law. Such a witness
comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare
his actual assailant(s) in order to falsely implicate someone. In Gurcharan Singh v. State of
Haryana, the Supreme Court has rightly held: The basic question which, therefore, arises is as to
how far the testimony of the prosecutrix before us can form the basis of the appellant's
conviction. It is well settled that the prosecutrix cannot be considered as an accomplice and,
therefore, her testimony cannot be equated with that of an accomplice in an offence. As a rule of
prudence, however; court normally looks for some corroboration of her testimony so as to satisfy
its conscience that she is telling the truth and that the person accused of rape on her has not been
falsely implicated. The matter is not res integra and Court has, on more occasions than one,
considered and enunciated the legal position. In Madho Ram and another v. State of U.P., the
Supreme Court held thus: "The principles that have to be borne in mind by courts when
considering evidence of the prosecutrix, have been clearly laid down by several decisions of this
Court. It has been held that the prosecutrix cannot be considered to be an accomplice. As a rule
of prudence, however, it has been emphasised that Courts should normally look for some
corroboration of her testimony in order to satisfy itself that the prosecutrix is telling the truth and
that a person, accused of abduction or rape, has not been falsely implicated. In Moti Lal vs. State
of U.P., the Apex Court had reiterated the well settled principle that the victim of a sexual assault
is not to be treated as an accomplice and as such her evidence does not require corroboration
from any other evidence including the evidence of the doctor. It was further held that in a given
case even if the doctor who examined the victim does not find any sign of rape, it is no ground to
disbelieve the sole testimony of the prosecutrix if it inspires confidence.

1.3 VIOLATION OF ART.21

It is most humbly submitted before this Hon’ble Supreme Court of Sindhia that the removal of
reverse burden will violate the very principle of Art.21 which states that “no person shall be
deprived of his life or personal liberty except according to the procedure established by law”. So
considering the above mentioned fundamental right, it can rightly be said that no individual can

24
be deprived of his individuality. Nevertheless, there is an exception to it, the individual’s right
can be abridged by the procedure established by Law. In the present case, there are some
procedures which have been amended by the Parliament which abruptly violate the basic human
rights of a rape victim. Hence there is no proper enactment of laws and guidelines because it is to
be observed that even after the 2002 amendment, still the two finger test paves way to same
thing. Moreover the special status given to a rape victim after the Nirbhaya rape case has also
been abridged by this amendment, which clearly states that there is no rational Nexus between
gender neutrality and removal of Onus Propandi. Hence, in the name of gender neutrality, the
laws have been amended, but there is no iota of evidence that the removal of Onus Propandi will
achieve the objective of the amendment based on Gender Neutrality. In Nivedita Jha v. State of
Bihar, it was observed that while we are celebrating woman’s rights in all spheres, we show
little or no concern for her honour. It is a sad reflection on the attitude of indifference of the
society towards the violation of human dignity of the victims of sex crimes. We must remember
that a rapist not only violates the victim’s privacy and personal integrity, but inevitably causes
serious psychological as well as physical harm in the process. Rape is not merely a physical
assault - it is often destructive of the whole personality of the victim. A murderer destroys the
physical body of his victim, a rapist degrades the very soul of the helpless female. The courts,
therefore, shoulder a great responsibility while trying an accused on charges of rape. They must
deal with such cases with utmost sensitivity. In Nipun Saxena vs Union Of India Ministry Of
Home it has been held that “There has been lately, lot of criticism of the treatment of the victims
of sexual assault in the court during their cross-examination. The provisions of Evidence
Act regarding relevancy of facts notwithstanding, some defence counsel adopt the strategy of
continual questioning of the prosecutrix as to the details of the rape. The victim is required to
repeat again and again the details of the rape incident not so much as to bring out the facts on
record or to test her credibility but to test her story for inconsistencies with a view to attempt to
twist the interpretation of events given by her so as to make them appear inconsistent with her
allegations. The court, therefore, should not sit as a silent spectator while the victim of crime is
being cross-examined by the defence. It must effectively control the recording of evidence in the
court. While every latitude should be given to the accused to test the veracity of the prosecutrix
and the credibility of her version through cross-examination, the court must also ensure that

25
cross-examination is not made a means of harassment or causing humiliation to the victim of
crime. A victim of rape, it must be remembered, has already undergone a traumatic experience
and if she is made to repeat again and again, in unfamiliar surroundings what she had been
subjected to, she may be too ashamed and even nervous or confused to speak and her silence or a
confused stray sentence may be wrongly interpreted as “discrepancies and contradictions” in her
evidence.” Aju Varghese v. State of Kerala held as follows:- The statutory provision as
explained by the Supreme Court clearly shows that the provision was specifically intended to
ensure that the victim is not exposed to further agony by the consequent social victimization or
ostracism pursuant to disclosure of her identity. It is clear that, it is intended to protect her from
psychological and sociological torture or mental agony, that may follow the unfortunate incident
of sexual violence. Society has a duty to support the victims of sexual violence and to ensure that
they come back to normalcy and start leading a normal life. Victims of such violence are not
denuded of their fundamental right to privacy and are liable to be insulated against unnecessary
public comments. In Bhupinder Sharma v. State of Himachal Pradesh, it has been held that this is
one of first cases where specific reference was made to Section 228A IPC. This Court held as
follows: We do not propose to mention the name of the victim. Section 228-A of the Indian
Penal Code, 1860 (in short “IPC”) makes disclosure of the identity of victims of certain offences
punishable. Printing or publishing the name or any matter which may make known the identity of
any person against whom an offence under Sections 376, 376-A, 376-B, 376-C or 376-D is
alleged or found to have been committed can be punished.

ISSUE-4 WHETHER THE AMENDMENT BROUGHT BASED ON THE CONCEPT OF GENDER

NEUTRALITY IS UNCONSTITUTIONAL?

It is most humbly submitted before this Hon’ble Supreme Court of Sindhia that the amendment
brought based on the concept of gender neutrality does not satisfy its object, because in the case
in hand, the amendment excluded the exception clause for Sec. 375 and the removal of marital
rape as exception to Sec.375 which will infringe the fundamental rights of a married individual.
Moreover in the present case, in furtherance to the amendment, the terms of the provision have
been changed, for instance, instead of women they have included any person and instead of rape
they have changed it to sexual assault and as a result of this amendment the concept of equity is

26
being neglected between male and female. Therefore, without a proper survey and research, they
have just blindly followed the law suitable to the European nations. Hence the amended
provision is going to prove to be a catastrophe for men as well as women violating their personal
liberty and freedom of expression.

INCLUSION OF THE TERM SEXUAL ASSAULT

It is most humbly submitted before this Hon’ble Supreme Court of Sindhia that in this present
case, amendments have been brought to various criminal laws. So as per the amendment, the
exclusion of rape and the inclusion of sexual assault will create a big difference between the
meaning, more so, when Sec.7 of the POCSO Act clearly states that ‘Whoever, with sexual
intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina,
penis, anus or breast of such person or any other person, or does any other act with sexual intent
which involves physical contact without penetration is said to commit sexual assault”. So
considering the above statement made under Sec.7 of POCSO says that sexual assault is an
activity with another person who does not consent. It refers to sexual assault as a violation of
bodily integrity and sexual autonomy as broader than narrower conception of rape.

1.1 IMPLICATIONS TO RAPE VICTIM

As per Sec.375, if any person sexually assaults an individual then he will be punished for that
offence but the amendment ignores the importance and seriousness of this provision by
changing the narrower scope of the term rape to sexual assault giving it a wider sense,
diluting its impact. Even the New York state consolidated laws also differentiated the two
offences, as rape on one hand will be defined as non consensual sex penetration while sexual
assault on the other hand will be defined as non-consensual sex contact. Moreover sexual
violence involving the penetration of the body using sexual organs is qualitatively different
from non-penetrative form of sexual assault and therefore should be treated as a more severe
offence. Hence combining penetrative acts with non penetrative acts into a single offence
will reduce the gravity of the offence.
In Koppula Venkat Rao vs State Of Andhra Pradesh, it was held that The sine qua non of
the offence of rape is penetration, and not ejaculation. Ejaculation without penetration
constitutes an attempt to commit rape and not actual rape.

27
1.2 EXCLUSION OF MARITAL RAPE AS AN EXCEPTION WILL DESTROY
SANCTITY OF THE MARRIAGE
It is most humbly submitted before this Hon’ble Supreme Court of Sindhia that the exclusion
of exception to marital rape under Sec.375 of SPC,1860 will violate the basic human rights
of an individual in his marital life. Since in this present case, in the name of Gender
neutrality, they have changed the word women to any person and also emphasized every
terminology of the section in view of Gender neutrality by making it any person with the aim
to include men, women and LGBTQ. Hence as a result of this amendment any individual can
be entitled to claim his right under Sec. 375 which makes no sense and will lead to lot of
false accusations. It was rightly defined under the English law, that husband and wife were
considered as one person. In 1736, Sir Mathew Hale stated “The husband cannot be guilty of
a rape committed by himself upon his lawful wife for by their mutual matrimonial consent
and contract the wife hath given herself up in this kind unto her husband, which she cannot
retract.
In R. v. R, [1991] 4 All ER 481 where it was held as under :
"The rule that a husband cannot be criminally liable for raping his wife if he has sexual
intercourse with her without her consent no longer forms part of the law of England since a
husband and wife are now to be regarded as equal partners in marriage and it is unacceptable
that by marriae the wife submits herself irrevocably to sexual intercourse in all circumstances
or that it is an incident of modern marriage that the wife consents to intercourse in all
circumstances, including sexual intercourse obtained only by force.

It was clearly observed in The New India Assurance Company ... vs Somwati, that, In
legal parlance, “consortium” is the right of the spouse to the company, care, help, comfort,
guidance, society, solace, affection and sexual relations with his or her mate.

The same view has been reiterated in Rajesh v. Rajbir Singh, and it was also observed that
non-pecuniary head of damages has not been properly understood by our courts. The loss of
companionship, love, care and protection, etc., the spouse is entitled to get, has to be
compensated appropriately.

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In Prabha Tyagi vs Kamlesh Devi, Sexual relationship was defined as - Marriage-like
relationship refers to sexual relationship, not just for pleasure, but for emotional and intimate
relationship, for procreation of children, so as to give emotional support, companionship and
also material affection, caring, etc.

Marriage, as a sociological instrument, confers legitimacy to sexual activity between man

and woman. A child "born of wedlock", therefore, is "legitimate"; one born out of wedlock is
not. One of the grassroots justifications for marriage is, unquestionably, the right to engage in
sexual activity without societal disapprobation.

The Hon’ble Supreme Court, half a century ago in the celebrated decision of Dastane v.
Dastane, observed that "sex plays an important role in marital life and cannot be separated
from other factors which lend to matrimony a sense of fruition and fulfilment.

The legal concept of cruelty which is not defined by statute is generally described as conduct
of such character as to have caused danger to life, limb or health (bodily and mental) or to
give rise to reasonable apprehension of such danger. The general rule in all question of
cruelty is that the whole matrimonial relations must be considered, that rule is of a special
value when the cruelty consists not of violent act but of injurious reproaches, complains
accusations or taunts. It may be mental such as indifference and frigidity towards wife, denial
of a company to her, hatred and abhorrence for wife or physical, like acts of violence and
abstinence from sexual intercourse without reasonable cause. It must be proved that one
partner in the marriage however mindless of the consequences has behaved in a way which
the other spouse could not in the circumstances be called upon to endure, and that
misconduct has caused injury to health or a reasonable apprehension of such injury. There
are two sides to be considered in case of cruelty.

In Rita Nijhawan vs. Balkrishan Nijhawan AIR 1973 Delhi 200 at 209 it was observed as
follows:

"Marriage without sex is an anathema. Sex is the foundation of marriage and without a
vigorous and harmonious sexual activity it would be impossible for any marriage to continue
for long. It cannot be denied that the sexual activity in marriage has an extremely favourable

29
influence on a woman's mind and body. The result being that if she does not get proper
sexual satisfaction it will lead to depression and frustration. It has been said that the sexual
relations when happy and harmonious vivifies woman's brain, develops her character and
trebles her vitality. It must be recognized that nothing is more fatal to marriage than
disappointment in sexual intercourse."

The observation made by this Court in the case of Shobha Rani vs. Madhukar Reddi, AIR
1988 SC 121 can be reproduced to appreciate the facts and circumstances of the case on
hand. It reads as follows:

"There has been a marked change in the life around us. In matrimonial duties and
responsibilities in particular, there is a sea change. They are of varying degrees from house to
house or person to person. Therefore, when a spouse makes complaint about the treatment of
cruelty by the partner in life or relations, the Court should not search for standard in life. A
set of facts stigmatized as cruelty in one case may not be so in another case. The cruelty
alleged may largely depend upon the type of life the parties are accustomed to or their
economic and social conditions. It may also depend upon their culture and human values to
which they attach importance. The Judges and lawyers, therefore, should not import their
own notions of life. Judges may not go in parallel with them. There may be a generation gap
between the Judges and the parties. It would be better if the Judges keep aside their customs
and manners. It would be also better if Judges less depend upon precedents."

In Jayanti Rani Panda v. State of West Bengal & Anr., (1984) Cri.L.J.1535, it was
observed that in order to come within the meaning of misconception of fact, the fact must
have an immediate relevance. It was also observed that if a fully grown up girl consents to
the act of sexual intercourse on a promise of marriage and continues to indulge in such
activity until she becomes pregnant it is an act of promiscuity on her part and not an act
induced by misconception of fact and it was held that Section 90 IPC cannot be invoked
unless the court can be assured that from the inception accused never intended to marry her.

VIOLATION OF ART. 19 AND ART.21

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It is most humbly presented before this Hon’ble Supreme Court of Sindhia that Art.19(1)(a)
states that “All citizens shall have the right to freedom of speech and expression”. So a
reading of this above statement will make it explicitly clear that the expression of an
individual cannot be abridged by any person unless he violates any legal principles, as in the
case of marital rape also the marriage is a social institution and a socially approved
relationship between man and woman. The institution is acceptable in society because it
meets men and women’s physical, social, psychological, cultural, and economic needs. There
is a concept of marriage consummation in almost every religion; the institution is considered
incomplete without the creation of a physical relationship between husband and wife, and
this can be a basis for annulment in a marriage. Sex between spouse and wife is legal,
however, because of the legality of sex, women’s consent and circumstances are overlooked,
resulting in marital rape. Hence the marriage legalizes the consent of both individuals, so the
expression of one individual cannot be accepted, as it is violative of law. Moreover the
implication in the terms of the Criminal Amendment Act, 2022 create an uncertain condition
to the concept of marital rape under Sec.375 because anyone can be entitled to claim their
rights and the removal of Onus Propandi makes it difficult for the prosecution side to present
the evidence beyond reasonable doubt, since in the case of marital rape it is factual that the
evidence will be scarce in nature.

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 PRAYER

In the light of facts stated, issues raised, arguments advanced and authorities cited, the

Appellant humbly submits that this Hon’ble Supreme Court of Hillwood may be pleased to

declare the following:

1. TO BAN THE RELIGIOUS PRACTICE OF ANTAHK FOLLOWED BY THE

ZEN COMMUNITY IN THE STATE OF BRUSSELS AND DECLARE IT AS

ILLEGAL

2. TO BAN MANATANA FOLLOWED IN THE DISTRICT OF RAMGARH IN THE

STATE OF RAJPUTANAGARH AND DECLARE IT AS ILLEGAL

3. TO BAN FIREWALKING AND LANCE PIERCING FOLLOWED IN THE

DISTRICT OF NARINA IN THE STATE OF SAAKAR AND DECLARE IT AS

ILLEGAL

4. THE PUBLIC INTEREST LITIGATION MAY BE ALLOWED.

Pass any other order as the Hon’ble Court deems fit in the interest of equity, justice, fair

play and good conscience.⁷

32
All of which is humbly prayed.

(Counsel on behalf of the Petitioner

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