Extraordinary Writ Jurisdiction (Under Article 32) : Memorial On Behalf of Respondents

MEMORIAL ON BEHALF OF RESPONDENTS
Team Code: TC-45R
8 th RGNUL NATIONAL MOOT COURT COMPETITION, 2019
________________________________________________________
BEFORE THE HON’BLE SUPREME COURT OF INDIA

________________________________________________________
EXTRAORDINARY WRIT JURISDICTION

(UNDER ARTICLE 32)
WRIT PETITION No.___ OF 2019

(PUBLIC INTEREST LITIGATION)
IN THE MATTER OF:
SOCIETY FOR WOMEN’S RIGHTS …PETITIONER
V.
UNION OF INDIA & ORS. …RESPONDENT(S)
As submitted to the Chief Justice & other companion Judges of the

Hon’ble Supreme Court of India
WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS
8TH RGNUL MOOT COURT COMPETITION, 2019 1|Page

TABLE OF CONTENTS
LIST OF ABBREVIATIONS....................................................................................................3
INDEX OF AUTHORITIES......................................................................................................4
STATEMENT OF JURISDICTION..........................................................................................7
STATEMENT OF FACTS........................................................................................................8
ISSUES RAISED.......................................................................................................................9
SUMMARY OF ARGUMENTS.............................................................................................10
ARGUMENTS ADVANCED.................................................................................................12
I. Whether the present Writ Petition is maintainable under Article 32 of the Constitution
of India 1950?.......................................................................................................................12
II. Whether Exception II under Section 375 of Indian Penal Code, 1860 stands the test of
inconsistent with Article 14 of the Constitution of India, 1950?.........................................17
III. Whether the Exception II under Section 375 of Indian Penal Code, 1860 is inconsistent
to Article 21 of the Constitution of India, 1950?..................................................................21
IV. Whether India should also strike down Exception II under Section 375 of Indian Penal
Code,1860 and criminalise marital rape following the other countries doing so?...............26
PRAYER..................................................................................................................................33

LIST OF ABBREVIATIONS
Vs. Versus
Art. Article
HC High Court
SC Supreme Court
SCC Supreme Court Cases
AIR All India Reporter
IPC Indian Penal Code, 1860
CrPC Code of Criminal Procedure, 1973
UDHR Universal Declaration of Human Rights
Hon’ble Honourable
J&K Jammu and Kashmir
Ors. Others
Anr. Another
Raj Rajasthan
TN Tamil Nadu
MANU Manupatra
Ed. Edition
Co. Company
& And
PIL Public Interest Litigation
Exp. Exception
Para Paragraph

INDEX OF AUTHORITIES
Cases
A.R. Coeriel and M.A.R. Aurik v. The Netherlands, Communication No. 453/1991, para. 10.2______________22
Air India v. Nargesh Meerza__________________________________________________________________20
Arnesh Kumar Vs State of Bihar , (2014) 8 SCC 273_______________________________________________29
Asif Hameed vs. State of J&K, (1989) Supp (2) SCC 364___________________________________________13
Bharwada Bhoginbhai Hirjibhai v. State of Gujarat A.I.R. 1983 SC 753_______________________________30
Chandraketu v. State of Jharkhand A.B.A No. 1744 of 2014_________________________________________31
G Krishta Goud & Bhoomaiah v. State of Andhra Pradesh, (1976) 1 SCC 157____________________________13
I.R Coelho v. State of Tamil Nadu, AIR 2007 SC 861_______________________________________________16
Independent Thought vs. Union of India and anr.,(2017) 10 SCC 800_________________________________28
India Pharmaceutical Corpn. Ltd. v. Sharamik Sena, AIR 1999 SC 2577 : (1999) 6 SCC 439______________17
Jarnail Singh vs. State of Rajasthan (1972) Cr LJ 824 (Raj)_________________________________________23
K.S. Puttaswamy & Anr. vs. Union of India & Ors., (2017) 10 SCC 1_________________________________21
Kesavanada Bharati vs. State of Kerala, (1973) 4 SCC 225_________________________________________12
Loha v. The District Educational Officer, MANU/TN/2063/2015_____________________________________31
Mrs. Rita Nijhawan vs. Mr.Bal Kishan Nijhawan AIR1973Delhi 200__________________________________25
Om Prakash v. State of U.P , (2006) 9 SCC 787__________________________________________________30
Preeti Gupta v. State Of Jharkhand (2010)7 S.C.C 667_____________________________________________31
R. Rajagopal v. State of Tamil Nadu and others, (1994) 6 SCC 632___________________________________21
Raghunath Rao, Ganapath Rao v. Union of India, AIR 1993 SC 1297_________________________________17
Rajesh Sharma &Ors Vs State of UP ,(2018) 10 SCC 472___________________________________________29
Raju Yadav v. State,2016 SCC OnLine Del 3424__________________________________________________30
Ram Singh v. State of M.P , 1986(3) Crimes 306 (M.P)_____________________________________________29
Ramana Dayaram Shetty v. International Airport Authority of India, AIR 1979 SC 1628: (1979) 2 SCR 1014_20
Rao Harnarain Singh Sheoji Singh v. State , AIR 1958 Punj 123_____________________________________29
Resources Allocation, re, Special Reference No.1 of 2012, (2012) 10 SCC 1.___________________________17

Samar Ghosh vs Jaya Ghosh ,(2007)4SCC511____________________________________________________25
Shankar Thakur Alias Bom v. State of Jharkhand A.B.A No. 1340 of 2014_____________________________31
State of Andhra Pradesh vs. McDowell & Co., AIR 1996 SC 1627____________________________________20
State of M.P v. Rakesh Kohli, (2012) 6 SCC 312__________________________________________________18
State of Punjab vs. Gurmit Singh & Ors,AIR 1996 SC 1393_________________________________________30
Supreme Court Advocate on Record Association v. Union of India ,2015 SCC OnLine SC 964_______________16
Sushil Kumar Sharma v. UOI (2005) 6 SCC 281__________________________________________________31
T. Sareetha vs T. Venkata Subbaiah, AIR 1983 AP 356_____________________________________________24
The South African Constitutional Court in National Coalition for Gay and Lesbian Equality and another v.
Minister of Justice and others ,1998 (12) BCLR 1517 (CC)_______________________________________23
U.P Power Corpn. Ltd. v. Ayodhya Prasad Mishra (2008) 10 SCC 139________________________________20
Union of India vs. Association of Democratic Reforms, (2002) 5 SCC 294______________________________14
V.K. Naswa v. Union of India, (2012) 2 SCC 542_________________________________________________14
Vinita Saxena Vs Pankaj Pandit (2006) 3 SCC 778________________________________________________25
STATUTES
1. Code of Criminal Procedure, 1973
2. Constitution of India, 1950.
3. European Convention on Human Rights
4. Evidence Act,1872
5. Indian Penal Code, 1860
6. Protection of Women from Domestic Violence Act, No. 43, Acts of Parliament 2005
7. The International Covenant of Civil and Political Rights
8. Universal Declaration of Human Rights

BOOKS REFERRED
1. K.D Gaur, Criminal Law cases and materials (8th ed., 2015)
2. V.K. Dewan, Law Relating to Sexual Offences & Rape (2nd ed., 2017)
3. Vol 2, U.N Mitra, Law of Limitation and Prescription (14th ed., 2016)
4. Vol 1, Dr. Subhash C. Kashyap, Constitutional Law of India (2nd ed., 2015)
5. M.P Jain, Indian Constitutional Law, (8th ed., 2018
ARTICLES AND REPORTS
1. Robin West, Equality Theory, Marital Rape, and the Promise of the Fourteenth
Amendment, 42 Fla. L. Rev.45 (1990)
2. Raveena Rao Kalkakuru & Pradyumna Soni, Criminalisation of Marital Rape in India:
Understanding its Constitutional, Cultural and Legal Impact, 11 NUJS L. Rev. 1
(2018)
3. Prof. Kshitij Naikade & Dr. Garima Pal, Issues & Challenges Related to Marital Rape
in India, Vol 7, Issue 04, Ver. III, April 2018
4. Sakshi Kanodia & Ranjabati Ray, Why Penalize Marital Rape, Vol. 21, Issue 9, Ver
10, Sept. 2016
5. Shivika Choudhary, Marital Rape : An Evaluation of the Patriarchal Injustice in the

Criminal Law (Amendment) Act, 2013, Christ University Law Journal, 3,2, (2014)

STATEMENT OF JURISDICTION
With reference to the circumstances that have been presented in the instant case, the
provision under which the Petitioner has approached the Hon’ble Supreme Court of India and
to which the Respondent humbly submits is under Article 136 of the Constitution of India,
1950.
The Article invoked is reproduced hereunder:-
136. Special leave to appeal by the Supreme Court
(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.

STATEMENT OF FACTS
I. The marriage of Nidhi and Subodh, aged 22 and 24 respectively, was solemnized in
Patiala in the year, December 2018 as per the Hindu rituals and customs with the
blessings of their parents. Both of them mutually decided to enter into marital life
with each other after live-in relationship of two years.
II. However, things were not the same for the couple post marriage as Subodh started to
dominate Nidhi, basically demanding intercourse as a matter of right rather than
making it an act of two consulting adults. Nidhi’s grievances to her Mother and
Mother-in-law fall flat as both of them had the common view i.e it is the duty of the
wife to fulfil the wishes of the husband at any cost.
III. Coincidentally, Nidhi came across to a debate show on the Television on the topic of
Marital Rape, wherein Exception II to Section 375 of the Indian Penal Code, 1860
was being discussed. Being influenced by the debate, Nidhi decided to approach
Society for Women’s Rights, an NGO working for the development and welfare of
women.
IV. The members of the NGO have now approached this Hon’ble Court in the form of an
Public Interest Litigation, challenging the constitutional validity of Exception-II of
Section 375 of the Indian Penal Code, 1860.

ISSUES RAISED
I. Whether the present Writ Petition is maintainable under Article 136 of the Constitution
of India 1950?
II. Whether Exception II under Section 375 of Indian Penal Code, 1860 is inconsistent
with Article 14 and Article 15(1) of the Constitution of India, 1950?
III. Whether the Exception II under Section 375 of Indian Penal Code, 1860 is inconsistent
with Article 21 of the Constitution of India, 1950?
IV. Whether the Exception II under Section 375 of Indian Penal Code, 1860 is inconsistent
with the International Conventions and Treaties signed by India, prescribing immediate
criminalisation of Marital Rape?

SUMMARY OF ARGUMENTS
I. Whether the present Writ Petition is maintainable under Article 32 of the

Constitution of India 1950?
In the present case, petitioners have filed a public interest litigation under Article 32 of
the Constitution of India seeking to declare Exception II under Section 375 of IPC to be
unconstitutional on grounds namely unreasonable classification amongst women; no
intelligible differentia behind the intention of the provision; suffocating the right to life
and liberty and dignity of married women, etc. However, it is pertinent to note that the
present petition does not stand the very test of maintainability on the reasoning that by
striking down the impugned exception, it would effectuate to creating an offence which
is the sole aim and duty of the legislature. The impugned exception subsists in the statute
reflecting the intent of the legislature, however the judiciary would be erroneously
substituting it if interfering with the constitutionality of the statute. Lastly and most
importantly, it is in the true spirit of the constitutionalism that the court should maintain
the essence of Constitutional Morality and uphold the cardinal doctrine of separation of
powers and not into the act of judicial legislation.
[1] THE COURT CANNOT STRIKE DOWN EXCEPTION 2 TO §375 OF THE IPC, 1860 AS IT IS
IN VIOLATION OF THE DOCTRINE OF SEPARATION OF POWERS
It is submitted that the Court cannot strike down exception 2 to § 375 of the IPC, 1860 as it is
in violation of the doctrine of separation of powers, which has been held to be a basic
structure of the Constitution, as firstly, striking down the exception would mean that the
Court is creating a new offence, which is the exclusive prerogative of the legislature under
the seventh schedule of the Constitution. Therefore, by criminalising marital rape, the Court
is stepping into the domain of the legislature and creating a new offence, which would lead to
a violation of the doctrine of separation of powers. Secondly, the Court cannot criminalise
conduct as, in the division of responsibilities and prerogatives amongst the organs of
government with respect to the criminal justice system, it is the duty of the legislature to
criminalise conduct whereas it is the duty of the judiciary to interpret and apply the statutory
provision to ascertain whether the accused’s conduct satisfies the ingredients of the offence
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and therefore, whether the accused should be acquitted or convicted for the criminal offence.
Thus, if the Court strikes down the marital rape exemption, it will criminalise conduct and
infringe into the domain of the legislature.
[2] IN ANY CASE, THE SUPREME COURT SHOULD NOT CRIMINALIZE MARITAL RAPE
It is submitted that this Court should not criminalise marital rape as firstly, there are alternate
remedies which are available. The availability of civil remedies for the victim to take
recourse to, as well as other criminal provisions which would encapsulate the harm which a
provision for marital rape essentially seeks redressal for mean that there are a number of
alternative remedies which can be availed of, and they are sufficient to redress the harm that
is caused. Secondly, the legislature is the appropriate forum to decide as the legislature is
much more competent and aware of the social realities with respect to the applicability of the
new offence, the indifference towards the recourse by the underprivileged etc. As a result of
the onerous evidentiary burden on the accused and the perceived misuse of the provision by
the victims, which are the two primary concerns, it is contended that the legislature is the
appropriate forum to address this issue. Thirdly, the punishment will be disproportionate in
accordance with the essential principles of sentencing theory.

ARGUMENTS ADVANCED
I. Whether the present Writ Petition is maintainable under Article 32 of the

Constitution of India 1950?
1.1 It is most respectfully contended before this Hon’ble Court that the present petition is
filed under Art.32 of the Constitution of India, 1950 which empowers this Hon’ble Court 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 Part III of the Constitution of India.
1.2. In the present case, petitioners have filed a public interest litigation under Article 32 of
the Constitution of India seeking to declare Exception II under Section 375 of IPC to be
unconstitutional on grounds namely unreasonable classification amongst women; no
intelligible differentia behind the intention of the provision; suffocating the right to life and
liberty and dignity of married women, etc. However, it pertinent to note that the present
petition does not stand the very test of maintainability due to the following reasons explained
hereunder.
1.3. It is contended before this Hon’ble Court that the present case although being filed under
Article 32 of the Constitution of India, bars the court to adjudicate the matter for it would
frustrate the Doctrine of Separation of Powers amongst the three wings of State i.e.
Legislature, Executive and Judiciary. An integral component of Rule of Law and included by
this Hon’ble Court in the landmark judgment of Kesavananda Bharati vs. State of Kerala 1,
Doctrine of Separation of Powers has been the backbone of the quasi-federal nature of Indian
democracy blending all the organs of the government with clear demarcation of their nature
and scope of powers. In the present case, the impugned provision under Section 375 of IPC
provides immunity to husband against any allegations of rape by his wife. However, the
consequence of declaring such provision to be unconstitutional effectuate into creating an
offence against married men, which is not the onus and duty of Judiciary. Judiciary being an
independent organ of the state is put to dispense justice by interpreting the provision of the
Constitution and not go beyond the spirit and intent it carries. Framing of Laws is the role of
1
Kesavanada Bharati vs. State of Kerala, (1973) 4 SCC 225

Legislature and exclusive to it, apart from the special provision of Ordinance for times when
legislature is not in session. Constitutional Courts of the country are empowered to do
complete justice by way of interpreting the existing laws and harmoniously construct them
with the sense of Constitutional Morality. By adjudicating upon the present issue, this court
may declare the impugned Exception to be unconstitutional but by doing that it will self-
destruct the cardinal principle of Separation of Powers.
1.4. The grievance in the present case has a sound constitutional foundation. In the case of
G Krishta Goud & Bhoomaiah v. State of Andhra Pradesh 2, a Supreme Court Bench presided
over by the remarkable Justice VR Krishna Iyer sounded a worthy bell of caution when he
noted, “As Judges, we cannot rewrite the law whatever our views of urgent reforms, as
citizens, may be.” Further, in State of Himachal Pradesh and Ors. vs. Satpal Singh3, Justice
Chandrachud has cleared the position and outlook of judiciary when dealing such gaps/voids
in law. “The power to enact a legislation is a plenary constitutional power which is vested in
the Parliament and State legislatures under Art. 245 and Art. 246 of the Constitution of
India. The legislature as the repository of the sovereign legislative power is vested with the
authority to determine whether a laws should be enacted. The doctrine of separation of
powers entrusts to the court, the constitutional function of deciding upon the validity of the
law enacted by the legislature, where a challenge is brought under Art. 32 or Art. 226, on the
ground that the law lacks in legislative competence or has been enacted in violation of a
constitutional provision. But judicial review cannot encroach upon the basic constitutional
function which is entrusted to the legislature to determine whether a law should be enacted.
Whether a provision of law subserves the object of the law or should be amended is a matter
of legislative policy. The law enacting body is entrusted with the power to enact such
legislation as it considers necessary to deal with problems faced by the society and to resolve
issues of concern. The courts do not sit in judgment over legislative expedience or upon
legislative policy.”
1.5. As regards the question on the power of the court to plug any gaps in laws, this court in
the case of Asif Hameed v. State of J&K 4 observed that ‘the Constitution does not permit the
court to direct or advise the executive in matter of policy or to sermonize qua any matter
which under the Constitution lies within the sphere of the legislature or executive’. Further, in
2
G Krishta Goud & Bhoomaiah v. State of Andhra Pradesh, (1976) 1 SCC 157
3
State of Himachal Pradesh and Ors. vs. Satpal Singh, (2017) 11 SCC 42
4
Asif Hameed vs. State of J&K, (1989) Supp (2) SCC 364

case of Union of India vs Association of Democratic Reforms 5, court observed that the ‘it is
not possible for this Court to give any directions for amending the Act or Statutory Rules and
is for Parliament to do so’.
1.6. It is contended that the next possible remedy that could be prayed by the petitioners is to
issue a writ of mandamus, directing the centre to take note of the concept of Marital Rape and
subsequently draft a suitable law on the same. However, this court in the case of V.K. Naswa
v. Union of India6 referred to a large number of decisions and held that ‘it is crystal clear that
the court has a very limited role and in exercise of that, it is not open to have judicial
legislation. Neither the court can legislate nor has it any competence to issue directions to
the legislature to enact the law in a particular manner’.
1.7. It is thus submitted that Judiciary is one amongst the three branches of the State, other
two being the legislature and the executive. Each has specified and enumerated constitutional
powers. The judiciary is assigned with the functions of ensuring that the executive actions
accord with the law and the laws and executive decisions accord with the Constitution. The
courts do not frame a policy or mandate that a particular policy should be followed. The duty
to formulate policies is entrusted to the executive whose accountability is to the legislature,
and through it, to the people. Thus, this is the basis and rationale for holding that the court
does not have the power and function to direct the executive to adopt a particular policy or
the legislature to convert it into enacted law.7
1.8. It is further submitted that another grave consequence apart from violating the Doctrine
of Separation of Powers, will be replacing the intent of the legislature reflected expressly by
way of Exception II under Section 375 of IPC. Unlike in similar situations encountered
previously by this Court, for example Section 66A of IT Act, 2000; Sec 497 of IPC
(Adultery); Sec 377 of IPC (Homosexuality) etc., the results of the judgment were not
punitive in nature i.e. creating any new offence. In the present case, by declaring the
impugned exception unconstitutional, court will be putting their own law in place of the
original law which is a clear violation of Doctrine of Separation of Powers. It is pertinent to
note that despite numerous amendments to the IPC particularly the recent Criminal
Amendment Act 2013 which widened the definition of Rape, legislature refrained to amend
the impugned exception, thus clearly answering any doubts to their intention.
5
Union of India vs. Association of Democratic Reforms, (2002) 5 SCC 294
6
V.K. Naswa v. Union of India, (2012) 2 SCC 542
7
State of Himachal Pradesh and Ors. v. Satpal Singh, (2017) 11 SCC 42

1.9. The intent of the legislature behind criminalizing a human action passes through a
detailed process involving numerous factors and the social engineering. Developments in
science, especially in biology and medicine, and changes in predominant moral and social
philosophy also influence the making of penal law. A human conduct that is believed to be
inimical to the social interests is labelled as a crime. Whenever society believes that a kind of
conduct that was once thought to be indifferent to the welfare of the group actually threatens
some of the cherished interests it applies repressive methods, and that conduct becomes
crime. In examining what kind of conduct ought to be forbidden, it becomes necessary to
recall some of the proclaimed purposes of criminal law, which includes, the protection of the
human person (and to some extent animals also) against intentional violence, cruelty or
unwelcome sexual approaches.8 Sociologists like Roscoe Pound perceive ‘crime’ as a ‘social
phenomenon’ and that criminal law protects interests of social institutions including interests
in domestic institutions, religious institutions, and political institutions. 9 Before
criminalization of a human conduct, the legislature is expected to convince itself that:
a. It is absolutely necessary to create an offence;
b. The behavior in question is sufficiently serious to warrant intervention by the criminal

law;
c. The mischief could be dealt with under existing legislation or by using other remedies;
d. The proposed offence is enforceable in practice;
e. The proposed offence is tightly drawn and legally sound; and
f. The proposed penalty is commensurate with the seriousness of the offence.10
1.10. It is contended before this court that the present case is a patently flawed petition for the
fact that it pushes the court to leap the boundaries of Constitutional Morality and rip apart the
fabric of separation of powers, frustrating the very basic structure doctrine. Further, since
there already exists a law on the issue raised in the present petition with complete immunity
to married men for the offence of rape of his wife, there exists no state of void in the statute
that calls for any intervention by the court but for the sole purpose of re-interpretation. It is
8
Nigel Walker, Sentencing in a Rational Society, penguin, 1972, p.41
9
John Gillin, Criminology and Penology, third edn., New York.
10
HL Deb, vol. 602, WA 57, 18 June 1999

contended that in addition to the obvious text of the Constitution, the sub-text and spirit of the
Constitution also add force and understanding to its implementation. The essence of
Constitutionalism that gives immutable feature and serves as a moral compass in the
implementation and interpretation of the Constitution is the principle of Constitutional
Morality. However, while dealing with criminal matters and income tax act, tool of strict
interpretation is prescribed to be followed so as to prevent the courts from intertwining the
discretion and variability associated with the facts of each case impacting personal views
with the statutory provisions concerned. Hence, it becomes fundamental for the organ of the
state, as they discharge their constitutional duties, to keep in mind that constitutional morality
disallows absolute utilitarianism. While never abandoning sanctity of judicial review, judicial
modesty and reluctance to overstep into the legislative scope is a concept that progressive
constitutionalism applauds.
1.11. One of the most commonly known consequence of judicial creativity is the creation of
Doctrine of Basic Structure of the Constitution. It would be most appropriate to state that
basic structure doctrine, though not found in text, was indeed an expression of constitutional
morality. In the landmark case of I.R Coelho v. State of Tamil Nadu 11, a distinction was
developed between two types of values that form the part of the Constitution. The textual
provisions and the overarching values that form the part of the basic structure. It may be
considered that it was in this case, that Constitutional Morality was actually being expressed
with reference to its definition, albeit by another name. This recognition of the pre-eminence
of the foundational values behind textual rights is just an expression of what the Drafting
Committee envisioned. However this court in the case of Supreme Court Advocate on Record
Association v. Union of India12, repelled the suggestion that Basic Structure Doctrine was
outside the Constitution. Thus, while constitutional morality is an important feature of the
Constitution, grounded in Constitutionalism, the doctrine of basic structure, is only an
expression of that principle of constitutional morality, made exclusively from the provisions
of the Constitution.
1.12. It is thus most respectfully submitted that the Court, while balancing the objectives
reflected in the verbatim of textual provisions on one scale and the onus to maintain the spirit
of the Constitution on the other, is bound by the absolute limitation of not going outside the
provisions of the Constitution. It is in this light; it is submitted that the present petition does
11
I.R Coelho v. State of Tamil Nadu, AIR 2007 SC 861.
12
Supreme Court Advocate on Record Association v. Union of India , 2015 SCC OnLine SC 964.

not stand maintainable as it pushes this Hon’ble Court to invoke its powers under Art. 142 of
the Constitution to frustrate the cardinal principle of Doctrine of Separation of Powers to
indulge into Judicial Legislation. It would be the darkest hour in the legal history of India and
amount to cheating to the responsibility put upon this Hon’ble Court as the guardian of the
Constitution of India, if it ignores the quintessential feature of self-restraint while acting in
the cloak of Constitutional Morality.
II. Whether Exception II under Section 375 of Indian Penal Code, 1860 stands the test
of inconsistent with Article 14 of the Constitution of India, 1950?
2.1
. It is most respectfully contended that Article 14 of the Constitution of India prescribes
that “The State shall not deny to any person equality before the law and equal protection of
the laws within the territory of India”, where the State is bound to protect every human being
from inequality. Doctrine of Equality enshrined in Art.14 which is the basis of Rule of Law is
the basic feature of the Constitution.13 The guarantee of ‘equal protection’ is concerned with
non-discrimination and reasonable classification, while ‘due process’ offers protection
against arbitrariness of any kind.14 Art.14 is expressed in absolute terms and its effect is not
curtailed by any restrictions.15
2.2. It is contended that the impugned provision i.e. Exception II under Section 375 of the
Indian Penal Code does not create any further classification amongst the victims of rape. It is
undisputed that the impugned exception is a true reflection of the intent of legislation, a
consequence of due process of law as prescribed. Further, the impugned provision withstands
the two tests of constitutionality prescribed under Art. 14 i.e Tests of Reasonable
Classification and Test of Arbitrariness while it truly caters the objective for which it is
legislated. It further satisfies the Test of Intelligible Differentia and Test of Rational Nexus
prescribed under the Test of Reasonable Classification, thus eliminating all possibilities of
arbitrariness and unconstitutionality.
Test of Reasonable Classification
13
Raghunath Rao, Ganapath Rao v. Union of India, AIR 1993 SC 1297
14
India Pharmaceutical Corpn. Ltd. v. Sharamik Sena, AIR 1999 SC 2577 : (1999) 6 SCC 439.
15
Natural Resources Allocation, re, Special Reference No.1 of 2012, (2012) 10 SCC 1.

2.3. It is most respectfully contended before this Court that the impugned provision does not
create any new class amongst women on the basis of marital status as married women is an
already created and existing class. Test of Reasonable Classification further was down two
tests which needs to be satisfied for its fulfilment namely (i) classification must be founded
on intelligible differentia which distinguishes persons or things that are grouped together
from others left out of the group, and (ii) such differentia must have a rational relation to the
object sought to be achieved by the statute in question. 16 Numerous existing provisions and
statutes for example Sec. 3, Sec.18 and Sec. 31 of the Domestic Violence Act 2005; Cruelty
defined under Sec 498A IPC; Right to reside in Marital Home under the Hindu Adoption and
Maintenance Act, 1956; Right to Streedhan under the Hindu Succession Act; Right to
Inheritance and Coparcener under Hindu Succession Amendment Act 2005; Right to
Maintenance under Sec. 125 CrPC, 1908 etc provide and empower women on the basis of
their marital status i.e. these rights stand exclusive to group of women which are married and
hence, the present provision does not create any new class amongst class of victims.
Test of Intelligible Differentia
2.4. It is contended that the principle behind this test encompass the sound logic of creating
classifications based on an intelligible reason which rationally separates the above-mentioned
class of married women from the larger pool of women. By virtue of specific laws and
statutes that provide rights exclusive to married women, state has already recognized the
differentia on the basis of marital status of women which is created due to the special rights
and status it endows on women after their marriage. Hence it is contended that no new
differentia is being created by the impugned exception as it works in continuance the already
existing and settled tests and completely upholds the principle of Right to Equality.
Test of Rational Nexus
2.5. Test of Rational Nexus prescribes the condition of meeting the desired aim and objective
for which the intended act is legislated. Hence any such provision which fails to meet its
objective or fails to fulfil its purpose shall be deemed to be flawed in its construction and be
declared void. In the present case, petitioners challenging the impugned exception are unable
to realize the meeting of the impact of the provision to the intended purpose of the IPC i.e.
enforcing law, adjudicating crime, and correcting criminal conduct. By adopting the literal
16
State of M.P v. Rakesh Kohli, (2012) 6 SCC 312

rule of interpretation, the verbatim of the statute clearly punishes any encroachment to the
bodily privacy and protects the right to consensual intercourse of a woman. However, no law
is absolute and so is the case with the rape exception which grants immunity to all married
men against the offence of rape by their wife, which is being duly fulfilled. It is thus
construed that the intent of the legislature to preserve the sanctity of marriage and the
inability of the Indian society to comprehensively accept the concept of marital rape has been
upheld by the impugned provision and stands the Test of Rational Nexus. It is deemed that ,
if made unconstitutional, the law will cause more harm than meet the intended nexus due the
incapability of the society pertaining to factors like lack of education particularly sex
education delineating what constitutes rape, lack of awareness about the law and available
legal remedies, lack of social and moral support groups to encourage reporting of such cases.
Although the list is not exhaustive, it is in the light of such factors and consequence of deep
social engineering that the legislature refrained to pursue this road till yet, thus balancing the
sanctity of marriage as an institution in India while ensuring ample alternate remedies
specifically legislated for married women to enforce their rights.
2.6. It is further contended that by declaring the impugned provision unconstitutional, it

would open a gateway to frivolous petitions filed to revenge married men. Every petition of
divorce on ground of cruelty would be accompanied by a criminal case alleging marital rape.
It would lead to a massive misutilization of the provision, extensively used by notorious
lawyers to blow-up the such cases, to harass the husband and his family and extort money or
other compromises. Further, the allegations of such nature, in case of an acquittal, would
stigmatize the accused and his family permanently, thus severely frustrating their right to live
with dignity ensured under Art. 21 of the Constitution of India. It is pertinent to note here,
consequences would also include barricading all possible options of resettlement and second
marriage for the husband. Hence it is submitted that rape not being a gender neutral offence
in India, any interference with its provisions shall be the exclusive domain of the legislature,
to maintain the balance of fundamental rights of men and women while fulfilling the
objectives of Art. 15(3) of the Constitution of India.
Test of Arbitrariness

2.7. A natural progression of the principle of intelligible differentia and reasonableness is the
test of arbitrariness. ‘Arbitrariness’ in its simplest terms means something unpredictable,
vague and irrational, ‘no enactment can be struck down by just saying that it is arbitrary or
unreasonable.’17 Some or other constitutional infirmity has to be found before invalidating an
Act. Test of Arbitrariness is finally settled in International Airport Authority Case18
construing that Art.14 strikes at arbitrariness and an arbitrary action negates equality. If the
classification does not satisfy the dual test of intelligible differentia and the test of rational
relation between the object sought to be attained, the impugned legislation or executive action
would plainly be arbitrary and the guarantee of equality under Art.14 would be breached. 19 It
is contended that the Test of Arbitrariness does not stand to be satisfied in the present case
since the tests under reasonable classification give a green light to the impugned provision. 20
Had it been the case where the test of intelligible differentia and rational nexus stood
frustrated, the impugned provision would be tested in lines with Test of Arbitrariness.
However, the present case leaves no doubt as regards any vagueness or arbitrariness which
the impugned provision may deceptively incorporate.
2.8. It is thus, most respectfully submitted that the present petition is a futile attempt to distort
the settled position of law on the concept of Marital Rape. In the light of the historical
development and evolution of the Indian society under the umbrella of factors like diversity,
religion etc. and the sanctity attributed to the institution of marriage in the Indian setup; it is
very well reflected by the legislature that the present prevalent laws sufficiently caters for the
protection of fundamental rights of married women as a separate class, adequately balancing
the social imbalances in the light of Article 14 i.e. Right to Equality.
17
State of Andhra Pradesh vs. McDowell & Co., AIR 1996 SC 1627
18
Ramana Dayaram Shetty v. International Airport Authority of India, AIR 1979 SC 1628: (1979) 2 SCR 1014
19
Air India v. Nargesh Meerza, AIR 1981 SC 1829; See also; D.S Nakara v. Union of India, AIR 1983 SC 130
20
U.P Power Corpn. Ltd. v. Ayodhya Prasad Mishra (2008) 10 SCC 139

III. Whether the Exception II under Section 375 of Indian Penal Code, 1860 is
inconsistent to Article 21 of the Constitution of India, 1950?
3.1. The respondents contend that Exception (2) to Section 375 does not violate Article 21
of the Constitution. The exception was incorporated as penalisation of rape within
marriage would make the state "interventionist" and would be violative of the "right to
privacy" understood to be granted under the Constitution and criminalisation would
destroy the sacrosanct institution of marriage and disturb the balance of conjugal rights
and obligations in a marriage.
Privacy of a Marital Union
3.2. While testing the constitutional validity of Exception (2) to Section 375 IPC, due
regard must be given to the elevated right to privacy as has been recently proclaimed in
Puttaswamy21. According to the judgement, within the compartment of privacy, individual
autonomy has a significant space. It is expressive of self-determination and such self-
determination includes sexual behaviour. Such an behaviour or choice
that reflects an individual‘s autonomy is innate to him/her. It is an inalienable part of
his/her identity. The said identity under the constitutional scheme does not accept any
interference as long as its expression is not against decency or morality. And the morality
that is conceived of under the Constitution is constitutional morality. Under the autonomy
principle, the individual has sovereignty over his/her body. He/she can surrender his/her
autonomy wilfully to another individual and their intimacy in privacy is a matter of their
choice.22 Such concept of identity is not only sacred but is also in recognition of the
quintessential facet of humanity in a person‘s nature. The autonomy establishes identity
and the said identity, in the ultimate eventuate, becomes a part of dignity in an individual.
This dignity is special to the man/woman who has a right to enjoy his/her life as per the
constitutional norms.
3.3. In R. Rajagopal v. State of Tamil Nadu and others 23, while discussing the concept of
right to privacy, it has been observed that the right to privacy is implicit in the right to life
and liberty guaranteed to the citizens of this country by Article 21 and it is a "right to be
21
K.S. Puttaswamy & Anr. vs. Union of India & Ors., (2017) 10 SCC 1
22
Navtej Singh Johar & Ors. vs. Union of India, (2018) 10 SCC 1
23
R. Rajagopal v. State of Tamil Nadu and others, (1994) 6 SCC 632

let alone", for a citizen has a right to safeguard the privacy of his/her own, his/her family,
marriage, procreation, motherhood, child-bearing and education, among other matters.
3.4. Article 12 of the Universal Declaration of Human Rights 24, makes a reference to
privacy by stating:- "No one shall be subjected to arbitrary interference with his privacy,
family, home or correspondence nor to attacks upon his honour and reputation. Everyone
has the right to the protection of the law against such interference or attacks."
3.5. Similarly, Article 17 of the International Covenant of Civil and Political Rights 25, to
which India is a party, talks about privacy thus:- "No one shall be subjected to arbitrary or
unlawful interference with his privacy, family, home and correspondence, nor to unlawful
attacks on his honour and reputation."
3.6. Article 8 of the European Convention on Human Rights 26 also seeks to protect the
right to privacy by stating:- "1. Everyone has the right to respect for his private and family
life, his home and his correspondence. 2. There shall be no interference by a public
authority except such as is in accordance with law and is necessary in a democratic society
in the interests of national security, public safety or the economic well being of the
country, for the protection of health or morals or for the protection of the rights and
freedoms of others.
3.7. Even in international cases like Paris Adult Theatre I v. Slaton27 it was observed that only
the most wilful blindness could obscure the fact that sexual intimacy is a sensitive, key
relationship of human existence, central to family life, community welfare and the
development of human personality.
3.8. Again, in A.R. Coeriel and M.A.R. Aurik v. The Netherlands 28, the Human Rights
Committee observed that the notion of privacy refers to the sphere of a person's life in which
he or she can freely express his or her identity, be it by entering into relationships with others
or alone.
24
UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at:
https://www.refworld.org/docid/3ae6b3712c.html [accessed 14 March 2019]
25
UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United
Nations, Treaty Series, vol. 999, p. 171, available at: https://www.refworld.org/docid/3ae6b3aa0.html [accessed
14 March 2019]
26
Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as
amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5, available at:
https://www.refworld.org/docid/3ae6b3b04.html [accessed 14 March 2019]
27
413 U.S. 49 (1973)
28
A.R. Coeriel and M.A.R. Aurik v. The Netherlands, Communication No. 453/1991, para. 10.2

3.9. The South African Constitutional Court in National Coalition for Gay and Lesbian
Equality and another v. Minister of Justice and others 29 has arrived at a theory of privacy in
sexuality that includes both decisional and relational elements. It lays down that privacy
recognises that we all have a right to a sphere of private intimacy and autonomy which allows
us to establish and nurture human relationships without interference from the outside
community. If, in expressing our sexuality, we act consensually and without harming one
another, invasion of that precinct will be a breach of our privacy.
3.10. The above authorities capture the essence of the right to privacy. There can be no doubt
that an individual also has a right to a union under Article 21 of the Constitution. As a
concept, union also means companionship in every sense of the word, be it physical, mental,
sexual or emotional and it is utmost importance that the privacy of such an union is protected
so long as such a companionship is consensual and free from the vice of deceit.30
Marriage is an unequivocal and voluntary consent for sexual intercourse
3.11. Explanation-2 of Sec 375 reads that consent means an unequivocal voluntary agreement
when the women by words, gestures or any form of verbal or non-verbal communication
communicates willingness to participate in the specific sexual acts. Consent involves a
voluntary act and conscious acceptance of what is proposed to bee done by another and
concurred in by the former. In Jarnail Singh vs. State of Rajasthan31, the court observed that
when a women of full age gives her consent to a man for sexual intercourse prior to
penetration, it is not rape, no matter how much force is subsequently used by him, no matter
how much reluctance is developed by her subsequent to the penetration.
3.12. The Exception 2 to Sec 375 is premised on the assumption that on marriage, both the
husband and wife give their forever consent to each other for sexual intercourse. Both have a
right to have sexual intercourse with each other and they are under an obligation to surrender
or submit to their spouse’s will and desire.
3.13. To understand the reason for such premise, it is important to understand the concept of
marriage in the Indian Scenario. According to the Hindus, marriage is one of the essential
29
The South African Constitutional Court in National Coalition for Gay and Lesbian Equality and another v.
Minister of Justice and others , 1998 (12) BCLR 1517 (CC)
30
Navtej Singh Johar & Ors. vs. Union of India, (2018) 10 SCC 1
31
Jarnail Singh vs. State of Rajasthan, (1972) Cr LJ 824 (Raj)

samskaras (sacraments). The wife is the ardhagini (half of man). As per the Satpatha
Brahmana, “The wife is verily the half of the husband and a man is not complete until he
marries. From this notion of unity of personality of husband and wife, mutual fidelity of
husband and wife is implied. Manu smriti has declared that the mutual fidelity between
husband and wife is the highest dharma. Thus, Hindus conceive marriage as a sacramental
union, as a holy union which implies that for a Hindu, marriage is a religious obligation, for
begetting a son, for discharging his debt to his ancestors and for performing the religious and
spiritual duties.
3.14. Islam has attached great importance to the question of marriage too in its social system.
In the Holy Quran and the sayings of the Holy Prophet we find that marriage has been greatly
encouraged. Prophet Muhammad (s.a.w.) said: 'No institution of Islam is liked by Allah more
than that of marriage and the basic objectives of marriage in Islam are, first, securing a
comfortable atmosphere for a husband and wife and, second, producing a new generation of
healthy, faithful and virtuous children.
3.15. In Christians, marriage is the union between a man and a woman instituted and ordained
by God as the lifelong relationship between one man as husband, and one woman as wife.
Conservative Christians consider marriage as the most intimate of human relationships, a gift
from God, and a sacred institution. Protestants consider it to be sacred, holy, and central to
the community of faith. Catholics and Eastern Orthodox Christians consider marriage
a Sacrament.
3.16. This shows that while getting into the institution of marriage, both the husband and the
wife are well aware of the marital responsibilities that they are about to undertake and the
conjugal duties which both of them have towards each other. Conjugal rights connote two
ideas. (a) "the right which husband and wife have to each other's society and (b) "marital
iintercourse”.32 Thus, when two people decide to solemnise their marriage, they are well
aware of their conjugal rights and duties after marriage and they unequivocally and
voluntarily consent to have sexual intercourse only with each other. This is the implied
consent that the legislature recognises and covers under Exception 2 of Section 375. This
assumption is also proven from Section 376B which recognises the rape of a judicially
separated wife by her husband. This goes on to show that when a wife judicially separates
32
T. Sareetha vs T. Venkata Subbaiah, AIR 1983 AP 356

from her husband, she withdraws the consent to conjugal rights given by her during their
marriage to her husband.
3.17. The above discussion also shows that marriage in India is viewed as an integral
religious practice of almost all the major religion present in the country, and therefore, the
exception 2 to sec 375 exists as the state’s purpose to give effect to religious sentiments. It
gives effect to religious sentiments by protecting marital intercourse the importance of which
has been time and again mentioned by the court. The Court has opined that sex is the
foundation of marriage and marriage without sex is an anathema and without a vigorous and
harmonious sexual activity it would be impossible for any marriage to continue for long. It
must be recognised that nothing is more fatal to marriage than disappointments in sexual
intercourse.33 The Hon'ble Supreme Court in Samar Ghosh vs Jaya Ghosh34, took into
account the parameters of cruelty as a ground for divorce in various countries and then laid
down illustrations, though not exhaustive, which would amount to cruelty. It would be
relevant to refer to the following para 101 (xii) wherein it was held as under:- "(xii)
Unilateral decision of refusal to have intercourse for considerable period without there being
any physical incapacity or valid reason may amount to mental cruelty.”
3.18. Hence, it is evident from the aforesaid that wilful denial of sexual intercourse without
reasonable cause would amount to cruelty. This shows that even the judiciary agrees the basic
fact that the institution of marriage cannot be looked at independently of sex. If the court, in
this case, decides to struck down Exception 2 to Section 375 it would create a confusion
where denial of sex in marriage will amount to ‘cruelty’ and at the same time there would
exist an offence of ‘marital rape’. This would ultimately lead to a complete breakdown of the
institution of marriage.
3.19. The counsel thereby would like to submit that in case of rape if there is the act of sexual
intercourse it is without consent of the women, however a marriage is solemnised fully by
choice and enthusiastic agreement of both the man and woman with full knowledge of friends
and family and not by fraud or accident or force. Having given the consent to marriage, then
by definition wife (and also husband) are making conscious decision to keep sexual relations
with her husband (or wife) as sex is an integral part of marriage. And by not interfering in
33
Vinita Saxena Vs Pankaj Pandit, (2006) 3 SCC 778; Mrs. Rita Nijhawan vs. Mr.Bal Kishan Nijhawan,
AIR1973Delhi 200
34
Samar Ghosh vs Jaya Ghosh , (2007) 4SCC 511

their conscious decision to have sexual relations with each other nor just the state is
protecting their marital privacy but also respecting their religious sentiments.
IV. Whether India should also strike down Exception II under Section 375 of Indian
Penal Code,1860 and criminalise marital rape following the other countries doing so?
4.1. The counsel contends that the fulfilment of India’s international commitments cannot be
the subject of petition under Article 32. Moreover, the fact that many countries in the west
have criminalised what they call Marital Rape is not enough to remove the exception in India
because it is important to understand that crime and society are interlaced in a mesh so dense
that it will take a responsible understanding of the society to make a bold declaration as to
what constitutes an offence and what doesn’t. To take a superficial, simplistic and sensational
approach to criminalise marital rape because other countries have done so can be tempting,
but toxic as our country differs from those who have criminalised marital rape. The
differences are dealt in detail below.
Most of those countries have rape laws which are gender neutral
4.2. It is important to note that though there are provisions in the current legal system to
protect the women from physical, mental and sexual abuse there is no such protection for the
men. By bringing in the offence of Marital Rape, the balance between the rights of married
men and married women will not be met where a married women would have the right to
refuse sexual intercourse but the married men will not have such a right. Moreover, it will
also increase the scope of misuse of the provision by the married women by using the offence
of marital rape in every petition of divorce.

Most of those countries does not have other recourses as available in India
4.3.The counsel for respondent wishes to make it clear that it is not denying the suffering
and sexual abuse of either of the spouse in a matrimonial relationship. However, the sexual
abuse in a relationship should not be termed as Rape. Even the law on domestic violence 35
which was enacted in as recent as 2005, refused to term it as “Rape.” This clearly shows
the intention of the legislator that it did recognize and provided a remedy in cases of
sexual abuse but refused to term it as “Rape”. The Legislature in India also does not feel
the necessity to have a separate provision for Marital rape as it believes that there already
enough provision present to protect the wife from any abusive relationship. The legal
recourses available to a wife against her husband are :
Remedies under Protection of Women From Domestic Violence Act 2005
4.4. The PWDVA explanation II to section 3 clearly states that sexual abuse includes any
conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the
dignity of woman and provides remedy for the same. Another section36 in the act provides
for the passing of a protection order which the magistrate may, after giving the aggrieved
person and the respondent an opportunity of being heard and on being prima facie satisfied
that domestic violence has taken place or is likely to take place pass. If this protection
order is breached, another section37 provides for the punishment on account of the same.
The punishment for breach of this order extends to imprisonment up to one year or fine of
up to Rs 20,000 or both. While framing charges the Magistrates may also frame charges
under 498-A of the Indian Penal Code or any other provision of that Code or the Dowry
Prohibition Act, 1961 as the case may be, if the facts disclose the commission of an
offence under those provisions.
Remedies Under The Indian Penal Code
4.5. Remedies for protection of women from sexual abuse, injury or assault are also
provided under section 498A which deals with cruelty. This section clearly implies that if
a husband or even a relative of the husband subjects a woman to cruelty, shall be punished
with imprisonment for a term which may extend to three years and shall also be liable to
fine.
Cruelty under this section means—
35
Protection of Women from Domestic Violence Act, No. 43, Acts of Parliament 2005
36
Section 18, PWDVA
37
Section 31, PWDVA.

-any wilful conduct which is of such a nature as is likely to drive the woman to commit
suicide or to cause grave injury or danger to life, limb or health (whether mental or
physical) of the woman; or
-harassment of the woman where such harassment is with a view to coercing her or any
person related to her to meet any unlawful demand for any property or valuable security
or is on account of failure by her or any person related to her to meet such demand.
This clearly explains that since sexual assault is an act which causes grave injury to the
physical or mental health of the woman or both is covered under the meaning of cruelty
and punishment for the same is available. The Supreme Court of India has recently in a
judgement38 has harmoniously interpreted Exception 2 to Section 375 will not apply to
married women under the age of 18 making Sec 375 another legal recourse for a minor
wife.
4.6.If a husband takes indecent liberties with his wife in public he will be as much
punishable as if he had outraged the modesty of another woman and the wife can file a
complaint under Section 354 of the IPC against her husband if he commits an assault or
uses criminal force against his own wife.
4.7. The legislature believes that the above available legal remedies are sufficient to cover
any abusive relationship that a women may suffer in the hands of her husband and there is
no need to struck down Exception 2 of Sec 375.
Most of those countries do not use the word “Rape” for the stigma attached and the
taboo that a man would carry even if he is accused once and the allegations not
proved further
4.8. The counsel contends that it cannot be ignored that in India, an accused of rape even
before being proved guilty suffers from unaccounted humiliation, distress and misery
besides the expenses of the litigation. His plight may also continue after his acquittal as his
implication may have caused an uproar in society but his acquittal may not even be
noticed. He would continue to suffer the stigma of being a rape case accused. He has to
remain in custody for a considerable period. It may not be possible to restore the dignity
and honour of the accused nor compensate him for the humiliation, misery, distress and
monetary loss. Unfortunately, there is no discussion about the dignity and honour of a
man as all are only fighting for the rights, honour and dignity of women. Laws for
protection of women are being made which may be misused by a woman but where is the
38
Independent Thought vs. Union of India and anr., (2017) 10 SCC 800

law to protect a man from such a woman where he is being persecuted and implicated in
false cases. It is important in such a scenario to create a balance between the rights of
women and the dignity of a man. In an arrangement like marriage where consent for every
specific act will be very difficult to prove and the probability of false cases being filed
high, exception 2 to section 375 aims at striking such a balance.
Most of the countries have deterrents such as time frame within which the complaint
can be filed whereas in India, the women may allege that “she was being continuously
raped for years together”
4.9. According to Sec 468 r/w Sec 473 of the Code of Criminal Procedure, 1973 a women
may allege the offence of rape, it being an offence which is punishable with imprisonment
for a period exceeding three years, at any point of time even after years of the incident.
This would not just make it all the more difficult to prove the offence in a marital
relationship but it can also be used by women as a tool for harassing their husband for the
slightest of marital dispute that might arise between them. The laws for the protection for
women like Section 498-A, Dowry Prohibition Act, Domestic Violence Act etc have been
widely misused by women to falsely implicate not only their husbands but also the family
of their in-laws. This contention was also supported by our Hon’ble court in various cases
like Arnesh Kumar Vs State of Bihar 39, where the court observed that “The rate of charge-
sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is
only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of
which on current estimate, nearly 3,17,000 are likely to result in acquittal.”In Rajesh
Sharma &Ors Vs State of UP40 an observation on the same lines was made.
Most of the other countries talks about “use of force” in the sexual act within spouses
which section 375 of the IPC does not clarify
4.10. As held in the case of Ram Singh v. State of M.P41 the submission that absence of
mark of violence on the person of the prosecutrix should be taken as evidence of consent
was not acceptable, as held by the High Court. The court held that absence of injuries by
themselves would not be sufficient to infer consent. Moreover, as stated in the case of Rao
Harnarain Singh Sheoji Singh v. State,42 that a mere act of helpless resignation, in the face
39
Arnesh Kumar Vs State of Bihar , (2014) 8 SCC 273
40
Rajesh Sharma &Ors Vs State of UP , (2018) 10 SCC 472
41
Ram Singh v. State of M.P , 1986(3) Crimes 306 (M.P)
42
Rao Harnarain Singh Sheoji Singh v. State , AIR 1958 Punj 123

of inevitable compulsion, quiescence, non-resistance or passive giving in, when volitional

faculty is either clouded by fear or vitiated by duress, cannot be deemed to be “consent” as
understood in law.
4.11. This goes on to show that the important ingredient in India to prove rape is not use of
force but consent which would make it very difficult for the accused of marital rape to
prove. It is also important to note if the court decides on striking out the exception (2) to
sec 375, the rape by a husband would be covered under Sec 376 (2) to which Sec 114A of
the Evidence Act,1872 applies wherein if it is proved that sexual intercourse occurred and
it is a fact on record and the prosecutrix in her testimony says that it happened without her
consent, the court shall presume that she did not consent. In a relationship like husband
and wife where sexual intercourse is certain to take place, a provision like this would make
it highly unjust for the husband to defend.
Most of the other countries requires to have a medical evidence to support the claims
of the rape but post the criminal amendments in India, no medical evidence is
required.
4.12. Under Sec 164A(7) of CrPC lays down that medical examination of a rape victim
cannot be carried out without the consent of the woman. In India, even in the absence of
medical evidence, an accused is liable to be convicted for Rape if the evidence of the
prosecutrix is reliable. It is also re-iterated that conviction can be based on the sole
testimony of the prosecutrix without any corroboration. 43 In the case of State of Punjab
vs. Gurmit Singh & Ors.44, the Supreme Court held that corroborative evidence is not an
imperative component of judicial credence in every case of rape and a woman or a girl
subjected to sexual assault is not an accomplice to the crime but is a victim of another
person's lust and it is improper and undesirable to test her evidence with a certain amount
of suspicion, treating her as if she were an accomplice. Again, in the case of Om Prakash
v. State of U.P45 the court held that it is a settled law that the victim of sexual assault is not
treated as an accomplice and as such, her evidence does not require corroboration from
any other evidence including the evidence of a doctor. Even in the case of Bharwada
Bhoginbhai Hirjibhai v. State of Gujarat 46, this Hon’ble Court had opined that the victim
in the crime of rape is the best eye witness and further observed that--“In the Indian
setting, refusal to act on the testimony of a victim of sexual assault in the absence of
43
Raju Yadav v. State, 2016 SCC OnLine Del 3424
44
State of Punjab vs. Gurmit Singh & Ors ,AIR 1996 SC 1393
45
Om Prakash v. State of U.P , (2006) 9 SCC 787
46
Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, A.I.R. 1983 SC 753

corroboration as a rule is adding insult to injury...” It is pertinent to mention here that

according to Modi's Medical Jurisprudence and Toxicology 47, to constitute the offence of
rape, it is not necessary that there should be complete penetration of penis with emission
of semen and rupture of hymen. Partial penetration of the penis within the Labia majora or
the vulva or pudenda, with or without emission of semen, or even an attempt at penetration
is quite sufficient for the purpose of the law. It is therefore quite possible to commit
legally, the offence of rape without producing any injury to the genitals or leaving any
seminal stains. In such a case, the medical officer should mention the negative facts in his
report, but should not give his opinion that no rape had been committed. Rape is a crime
and not a medical condition. Rape is a legal term and not a diagnosis to be made by the
medical officer treating the victim. The only statement that can be made by the medical
officer is to the effect whether there is evidence of recent sexual activity. Whether the rape
has occurred or not is a legal conclusion, not a medical one.
4.13. Based on the above argument the counsel would like to point out that in India where
a rape in most cases is said to be committed only on the basis of a ‘mere statement of the
victim’, it is highly dangerous to recognise criminalisation of marital rape. It would be
very difficult for the husbands to plead their innocence in case he is being falsely
implicated as the victim’s statement needs no further corroboration. This would further
contribute to the misuse of the law by women against men with no safeguards to the
accused.
4.14. This clearly draws out the fact that these laws are being heavily misused 48 and until
there is no law to provide protection to the husbands, criminalising marital rape would
amount to further misuse which will result in a social stigma to the husbands who are
falsely implicated as arrest brings humiliation, curtails freedom and cast scars forever. In
most cases, like false accusation in dowry cases 49 it also affects the entire family where in
following a marital discord, with only a testimony the husband and family members are
put behind bars.
47
Modi’s Medical Jurisprudence and Toxicology, Modi, 25th Edition
48
Sushil Kumar Sharma v. UOI, (2005) 6 SCC 281, Preeti Gupta v. State Of Jharkhand, (2010)7 S.C.C 667,
Loha v. The District Educational Officer, MANU/TN/2063/2015, Krishna Rani v. State of Punjab, (2008) 3
PLR 107
49
Chandraketu v. State of Jharkhand, A.B.A No. 1744 of 2014, Bom Shankar Thakur Alias Bom v. State of
Jharkhand, A.B.A No. 1340 of 2014.

4.15. The Counsel would like to draw attention to the fact that as much as 1,86,000 arrests
in cases of crimes against the wife were made in 2015 as per NCRB 50 records. In many of
these cases the victim was pressurised for huge sums for out of court settlements. Such
laws have become a sword rather than a shield and with further amendment removing the
exception in sec 375, this sword is likely to become more disastrous.
4.16. Therefore, the counsel would like to humbly submit before this Hon’ble court that
looking at the NCRB suicide statistics as many as 62,000 married men are committing
suicide every year (which is more than double the suicides by women) with domestic
issues comprising of martial issues being the single largest reason for male suicides in
India, making India as the suicide capital of the world. Many men and their family
members have committed suicides because of the stigma and the taboo of the tags attached
right at the moment a person is falsely accused of dowry harassment, rape or any such
crime. Hence any law which is capable of such high misuse should not come into
existence. Specially keeping in mind that when it comes to legal remedies available to
women, the existing laws are very much there (both under civil law and criminal law) to
give a speedy and effective remedy to women who are facing abuse by their husbands
while no such law exists to protect the husband in case of misuse of law.
50
National Crime Record Bureau, Ministry Of Home Affairs

PRAYER
For the foregoing provisions, in the light of the issued raised, arguments advanced, reasons
given and authorities cited, the respondent prays before this, Hon’ble Court, to be graciously
pleased to:-
I. Dismiss the writ petition, declaring the Exception II to Section 375 of the Indian
Penal Code, 1860 to be constitutionally valid and not violative of Fundamental Rights
present in Part III of the Constitution of India, 1950.
II. Pass any other order that it may deem fit in the interest of Justice, Equity and Good
Conscience.
AND FOR THIS ACT OF KINDNESS, THE RESPONDENTS AS IN DUTY BOUND

SHALL EVER BE GRATEFUL.
SD/-
(Counsel for the Respondents)

Extraordinary Writ Jurisdiction (Under Article 32) : Memorial On Behalf of Respondents

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Extraordinary Writ Jurisdiction (Under Article 32) : Memorial On Behalf of Respondents

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MEMORIAL ON BEHALF OF RESPONDENTS

Team Code: TC-45R

8 th RGNUL NATIONAL MOOT COURT COMPETITION, 2019

BEFORE THE HON’BLE SUPREME COURT OF INDIA

EXTRAORDINARY WRIT JURISDICTION

WRIT PETITION No.___ OF 2019

IN THE MATTER OF:

SOCIETY FOR WOMEN’S RIGHTS …PETITIONER

UNION OF INDIA & ORS. …RESPONDENT(S)

As submitted to the Chief Justice & other companion Judges of the

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS

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Air India v. Nargesh Meerza__________________________________________________________________20

Arnesh Kumar Vs State of Bihar , (2014) 8 SCC 273_______________________________________________29

Bharwada Bhoginbhai Hirjibhai v. State of Gujarat A.I.R. 1983 SC 753_______________________________30

Chandraketu v. State of Jharkhand A.B.A No. 1744 of 2014_________________________________________31

I.R Coelho v. State of Tamil Nadu, AIR 2007 SC 861_______________________________________________16

Independent Thought vs. Union of India and anr.,(2017) 10 SCC 800_________________________________28

Jarnail Singh vs. State of Rajasthan (1972) Cr LJ 824 (Raj)_________________________________________23

Kesavanada Bharati vs. State of Kerala, (1973) 4 SCC 225_________________________________________12

Loha v. The District Educational Officer, MANU/TN/2063/2015_____________________________________31

Mrs. Rita Nijhawan vs. Mr.Bal Kishan Nijhawan AIR1973Delhi 200__________________________________25

Om Prakash v. State of U.P , (2006) 9 SCC 787__________________________________________________30

Preeti Gupta v. State Of Jharkhand (2010)7 S.C.C 667_____________________________________________31

R. Rajagopal v. State of Tamil Nadu and others, (1994) 6 SCC 632___________________________________21

Raghunath Rao, Ganapath Rao v. Union of India, AIR 1993 SC 1297_________________________________17

Rajesh Sharma &Ors Vs State of UP ,(2018) 10 SCC 472___________________________________________29

Raju Yadav v. State,2016 SCC OnLine Del 3424__________________________________________________30

Ram Singh v. State of M.P , 1986(3) Crimes 306 (M.P)_____________________________________________29

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Samar Ghosh vs Jaya Ghosh ,(2007)4SCC511____________________________________________________25

State of M.P v. Rakesh Kohli, (2012) 6 SCC 312__________________________________________________18

State of Punjab vs. Gurmit Singh & Ors,AIR 1996 SC 1393_________________________________________30

Sushil Kumar Sharma v. UOI (2005) 6 SCC 281__________________________________________________31

T. Sareetha vs T. Venkata Subbaiah, AIR 1983 AP 356_____________________________________________24

Union of India vs. Association of Democratic Reforms, (2002) 5 SCC 294______________________________14

V.K. Naswa v. Union of India, (2012) 2 SCC 542_________________________________________________14

Vinita Saxena Vs Pankaj Pandit (2006) 3 SCC 778________________________________________________25

1. Code of Criminal Procedure, 1973

2. Constitution of India, 1950.

3. European Convention on Human Rights

5. Indian Penal Code, 1860

7. The International Covenant of Civil and Political Rights

8. Universal Declaration of Human Rights

8TH RGNUL MOOT COURT COMPETITION, 2019 5|Page

5. M.P Jain, Indian Constitutional Law, (8th ed., 2018

ARTICLES AND REPORTS

5. Shivika Choudhary, Marital Rape : An Evaluation of the Patriarchal Injustice in the

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The Article invoked is reproduced hereunder:-

136. Special leave to appeal by the Supreme Court

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I. Whether the present Writ Petition is maintainable under Article 32 of the

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I. Whether the present Writ Petition is maintainable under Article 32 of the

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