8TH RGNUL NATIONAL MOOT COURT COMPETITION, 2019

TC-36

8th RGNLU NATIONAL MOOT COURT COMPETITION,2019

BEFORE THE HON’BLE SUPREME COURT OF INDIA

(FILED UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA,1950)

CIVIL APPEAL N0____/2019

With
WRIT PETITION NO._____/2019
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SOCIETY FOR WOMEN’S WELFARE ...APPELLANT

VERSUS

UNION OF INDIA ...RESPONDENT

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MOST RESPECTFULLY SUBMITTED TO THE HONOURABLE JUSTICES OF
SUPREME COURT OF INDIA
==================================================================
SUBMISSIONS ON BEHLAF OF THE RESPONDNETS

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TABLE OF CONTENT

LIST OF ABBREVIATIONS 5

INDEX OF AUTHORITIES 5

STATEMENT OF JURISDICTION 7

STATEMENT OF FACTS 8

STATEMENT OF ISSUES 10

SUMMARY OF ARGUMENTS 11

ISSUE 1:WHETHER THE CURRENT PIL FILED WITH RESPECT TO VIOLATION OF

FUNDAMENTAL RIGHTS OF MARRIED WOMAN OF ALL AGES IN THE FORM OF
MARITAL RAPE IS MAINTAINABLE OR NOT? 13
(1.1)MARRIAGE IS A BOND BETWEEN EQUALS AND A SACRED RELATIONSHIP 13
(1.2)WHETHER THE PRESENT WRIT PETITION HAS BEEN FILED PREMATURELY 15
(1.3)THE PRESENT PIL IS NOT MAINTAINABLE AS IT WAS FILED IN THE INDIVIDUALS
INTEREST. 16
(1.3.1) PUBLIC INTEREST LITIGATION DOES NOT MEAN SETTLING DISPUTES
BETWEEN INDIVIDUALS PARTIES. 16

WHETHER EXCEPTION II OF THE INDIAN PENAL CODE CONSTITUTIONALLY VALID

OR NOT? 18
(2.1) MARITAL RAPE MAY BECOME PHEONEMENON WHICH MAY DESTABALIZE THE
INSTITUTION OF MARRIAGE 19
(2.2) THE FACT THAT IT IS CRIMINALIZED IN OTHER COUNTRIES CAN NOT BE
APPLIED IN INDIAN CONTEXT 20
(2.4.1) ADVERSE IMPACT OF MISUSING S.498A INDIAN PENAL CODE, 1860 25
(2.4.3) DOWRY PROHIBITION ACT – A BANE 26
(2.5) THE 172 ND LAW COMISSION REPORT AND 167 TH REPORT OF PARLIAMENTARY
STANDING COMMITTEE. 27

PRAYER 29

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LIST OF ABBREVIATIONS

ABBREVIATIONS EXPANSIONS

AIR ALL INDIA REPORTER

Art. Article

Hon’ble Honourable

PIL Public Interest Litigation

SC Supreme Court

SCC Supreme Court Cases

v. Versus

GOI Government of India

Info. Information

Etc. Et certra

U/S Under Section

IPC Indian Penal Code

CrPC Code Of Criminal Procedure

CEDAW Convention on elimination of discrimination

against women

UDHR Universal declaration of human rights

ICCPR International Covenant On Civil and

Political Rights
¶ Paragraph

Retd. Retired

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INDEX OF AUTHORITIES
LIST OF CASES

1 VINITA SAXENA v. PANKAJ PANDIT (2005) AIR 243

2 ASHOK KUMAR v. SUMATI JAIN (2007) SCC 3 RLW
3 JOHN CLEMENT v. ALL CONCERNED AND ORS (2003) 3 ALD 645
4 ANDHRA INDUSTRIAL WORKS v. CHIEF CONTROLLER OF IMPORTS AND ORS AIR
1974 SC 1539
5 A.P v. A.O JAISWAL APEEAL (CIVIL) 4799 OF 1997
6 INDEPENDENT THOUGHT v. UNION OF INDIA (2018) 1 SCC (cri) 13
7 NEETU v. STATE OF PUNJAB (2007) 10 SCC 614
8 ASHOK KUMAR PANDEY v. STATE OF W.B (2004) 3 SCC 349
9 B. SINGH v UOI (2004) 3 SCC 363
10 P. SESHADARI v. S. MANGATI GOPAL REDDY (2011) 5 SCC 484
11 RAMSHARAN AYTYANUPRASI v. UOI AIR 1989 SC 549
12 SACHIDANAND PANDEY v. STATE OF W.B (1987) 2 SCC 295
13 GOPAL DAS v UOI AIR 1955 SC 1
14 COFFEE BD. V. JOINT C.T.O AIR 1971 SC 870
15 FREEDOM OF BAR ASSOCIATION IN KARNATAKA v. UOI (2000) 6 SCC 715
16 MAGAN BHAI v. UOI (1970) 3 SCC 400
17 JOSEPH SHINE v. UOI 2018 1 SCC (CRI) 470
18 MAJNU RAM KALITA v. STATE OF ASSAM (2009) 13 SCC 330
19 BIBI PARWANAKHATOON v. STATE OF BIHAR 2017) 6 SCC 792
20 Smt. SSATYABHAMA NAYAK v. NARENDRA KUMAR NAYAK AIR 1997 ORI 47
21 ASHWANI KUMAR KOHLI v. Smt. ANITA 1998 (2) AWC 1531
22 SHRI. VIDHYANIDHI DALMIA v. Smt. NEELANJAN DALMIA 150 (2008) DLT19
23 Dr. VINCENT PANIKULANGRA, LAWYER v. UOI and ANR. OCT28, 2015 KERALA H.C
24 PREETI GUPTA v. STATE OF JHARKHAND AIR 2010 SC 3363
25 ASHOK KUMAR v. VIJAY LAXMI 1992 DEL. 182
26 RAJESH SHARMA and ORS. v. STATE OF U.P AND ANR. 1265 OF 2017
27 BALRAM KUMAWAT v. UOI AIR 1996 SC 2184
28 KANS RAJ v. STATE OF PUNJAB AIR 2000 SC 2324

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BOOKS REFERRED

1 D.r M.P JAIN INDIAN CONSTITUTIONAL LAW

2 D.r J.N PANDEY CONSTITUTIONAL LAW OF INDIA
3 D.r PARAS DIWAN MODERN HINDU LAW
4 D.r S.N MISHRA INDIAN PENAL CODE
5 BATUK LAL ‘S COMMENTARY ON CODE OF CRIMINAL PROCEDURE
6 DURGA DAS BASU COMMENTARY ON CONSTITUTION OF INDIA
7 WEBSTER’S NEW EXPLORER ENCYLOPEDIC DICTIONARY
8 RATANLAL AND DHIRAJLAL, THE INDIAN PENAL CODE
9 D. r S.C TRIPATHI WOMEN AND CRIMINAL LAW

STATUTES REFERRED

1 CONSTITUTION OF INDIA,1950
2 INDIAN PENAL CODE,1860
3 CODE OF CRIMINAL PROCEDURE, 1973
4 DOWRY PROHIBITION ACT,1961
5 PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

ONLINE RESEARCH

1 www.manupatra.com
2 www.westlawindia.com
3 www.scconline.com

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STATEMENT OF JURISDICTION

THE RESPONDENT HAVE THE HONOUR TO SUBMIT BEFORE THE HON’BLE

SUPREME COURT, THE MEMORANDUM FOR RESPONDENT IN A WRIT PETETION
INVOKIG ITS JURISDICTION UNDER ARTICLE 32 OF THE CONSTITUTION OF
INDIA.

Article 32
32. (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 clauses (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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THE PRESENT MEMORANDUMM SETS FORTH THE FACTS, CONTETNTIONS
AND ARGUMENTS IN THE PRESENT CASE

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STATEMENT OF FACTS

PART-I
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A. Background: - Nidhi and Subodh aged 22 and 24 respectively, are two working
professionals in the city of Patiala. They have been live-in partners since 2017 and
love each other. Their parents were against them marrying each other. However, both
of them managed to convince their parents that this was the perfect match for them. In
2018 they both tied the knots as per the Hindu rituals and custom.

PART-II

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B. After their marriage, the relationship wasn’t the same as it had been prior to the
marriage. The primary reason according to Nidhi was that Subodh had begun to be
more dominating figure. He would now demand intercourse as if it was a matter
of right. He would never pay heed to the feelings of Nidhi and this was something

that hurt her. When Nidhi tried to talk about this to her mother and mother-in-law,
both of them had the same view that it is the duty of an Indian wife to fulfil the
wishes of her husband and be a constant companion to him at any cost.

C. One day Nidhi was watching a debate show on a television on the topic of marital
rape. A few of the panellists strongly condemned Exception II to section 375 of the
Indian Penal Code, 1860. They argued that it was based on the archaic concepts
where the wife was considered as possession and property of the husband. It was
further argued that marital rape also violated human rights and various rights of
women Article 21 of the constitution. They also demanded that there should not be
any distinction between rape within and outside the marriage.

PART III

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D. On the other hand, to preserve the institution of marriage and criminalisation of sexual
intercourse between spouses had potential to wreak havoc on the society. Further they
argued that the Indian law delivers proper protection to women rights and the
legislature is well aware of the situation and demands of the Indian society. Society
for Women’s Rights is an NGO that works for the development and welfare of
women. It is an organization that has previously helped to bring in women centric
laws by rallying for classification and enactments of women rights via legislation and
judicial intervention. Deeply moved by debate, Nidhi finally decided to fight for her
rights and what she is thought was a blatant injustice again persona. She approached
Society for Women’s Right and narrated her grief to their activities. The members of
the NGO decided to approach court for seeking to eradicate the social plague of
marital rape.

PART IV

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E. A Public Interest Litigation was filed by the NGO before the Hon’ble Supreme Court
of India with respect to the violation of fundamental rights of married woman of all
ages in the form of marital rape is, the PIL also challenges the constitutional validity
of exception II to section 375 of IPC.

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STATEMENT OF ISSUES

 ISSUE 1: WHETHER THE CURRENT PIL FILED WITH RESPECT TO

VIOLATION OF FUNDAMENTAL RIGHTS OF MARRIED WOMAN OF
ALL AGES IN THE FORM OF MARITAL RAPE IS MAINTAINBLE OR
NOT?

 ISSUE 2: WHETHER EXCEPTION II OF THE INDIAN PENAL CODE

CONSTITUTIONALLY VALID OR NOT?

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SUMMARY OF ARGUMENTS

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ISSUE 1: WHETHER THE CURRENT PIL FILED WITH RESPECT TO VIOLATION
OF FUNDAMENTAL RIGHTS OF MARRIED WOMAN OF ALL AGES IN THE FORM
OF MARITAL RAPE IS MAINTAINABLE OR NOT?
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In India marriage is solemnised fully by choice and enthusiastic agreement of both the parties
with full knowledge of friends and family, it is still meant to be sacrament. The sacramental
nature in its deepest meaning means spiritual bond built out of depth of love. In the present
case there has been no violation of fundamental rights. Moreover, there has been no forceful
sexual intercourse and nothing has been done to petitioner. It is clearly stated in facts that
respondent is only demanding for sexual intercourse and there are only presumptions that
there is infringement of fundamental rights. Marital rape is destructive because it betrays the
fundamental basis of marital relationship, for a happy married life there has to be
understanding between spouses and in breach of understanding there should be legal recourse
available but in no circumstances husband should be called as ‘rapist’. Therefore the current
PIL is not maintainable.

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ISSUE 2: WHETHER EXCEPTION II OF THE INDIAN PENAL CODE
CONSTITUTIONALLY VALID OR NOT?
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It is humbly submitted that in the present case what may appear to be marital rape to an
individual wife, it may not appear so to others, as to what constitutes marital rape and what
would constitute marital non rape needs to be defined precisely before a view on its
criminalization is taken, it has to be ensured adequately that marital rape does not become a
phenomenon which may destabilize the institution of marriage apart from being an easy tool
for harassing the husbands. The Supreme Court and various High Courts have already
observed the rising misuse of section 498A of IPC. The Question is that on what evidences
the Courts will rely upon in such circumstances as there can be no lasting evidence in case of
sexual acts between a man and his own wife, the Law Commission in its 172 Report titled
Review of Rape Laws and the Department Related Parliamentary Standing Committee on
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Home Affairs in its 167th Report examined the matter and did not recommend the
criminalization of marital rape and the fact that other countries, mostly western, have
criminalized marital rape does not necessarily mean India should also follow them blindly.
This country has its own unique problems due to various factors like literacy, lack of
financial empowerment of the majority of females, mind-set of the society, vast diversity,
poverty, etc. and these should be considered carefully before criminalizing marital rape .

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ARGUMENTS ADVANCED

ISSUE 1:

WHETHER THE CURRENT PIL FILED WITH RESPECT TO VIOLATION OF

FUNDAMENTAL RIGHTS OF MARRIED WOMAN OF ALL AGES IN THE
FORM OF MARITAL RAPE IS MAINTAINABLE OR NOT?

1 ¶ It is humbly submitted that the writ petition filed by the petitioner is not a bona fide petition.
The first requirement for the maintainability of public interest litigation is the uberrima fides
of the petitioner. The petitioner has unjustifiably attacked the integrity of the respondent. This
is not a petition to protect the fundamental rights of any class of downtrodden or deprived
section of the population. Public interest litigation has to be used with great care for delivery
or delivering social justice to citizens. And in the present case the NGO has filed the PIL
solely on hearing the grievances from one such woman, the present writ petition is not
maintainable as:

(1.1)MARRIAGE IS A BOND BETWEEN EQUALS AND A SACRED RELATIONSHIP

2 ¶ 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 is making
conscious decision to keep sexual relations “with her husband or wife as marriage without
sex is an anathema”.1

3 ¶ That a mere comparison between the marriages solemnized in Indian society and western
societies makes it clear that marriage in Indian society is considered to be a sacred
relationship and binds man and woman and form basic unit of the society2, with aim to
procreate and lead a happy married life. The marriages in western world are considered to be
a contract between the husband and wife.3 Accordingly, the concept of “Marital Rape”
1
Vinita Saxena v. Pankaj Pandit (2005) AIR 243.
2
Ashok KumarJain v. Sumati jain,(2007) SCC 3 RLW.
3
John Clement and Anr v. All concerned and Ors,(2003) 3 ALD 645.

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cannot apply in Indian context. And if there is abuse of sexual nature, Indian law have
already provided a remedy to deal with.

4 ¶ Even today, when marriages are joined and come apart to a degree that seems extraordinary,
marriage is still meant to be a sacrament between two persons who love each other. The
eternal quality of consecration to God pervades a truly sacred marriage, eternally
contradicting the popular currents of culture that make divorce an easy, though not painless
outcome in many instances.
5 ¶ It cannot be altered by law or edict, even though its sacred nature may be forgotten or abused.
Marriage, as sacrament, reflects intention to share the gifts of love and the joy of love with
two, who, through their love, will bring the fruits of their joining to the world for the benefit
of the world as well as for themselves. These fruits include but go far beyond the bearing of
children.

6 ¶ They are the fruits of the soul, the expressions of the soul, bringing what is Divine in each
partner into greater manifestation, making each one a truer reflection of their inner being.

7 ¶ The sacramental nature of marriage makes it more than a physical bond, more than an
emotional bond. It is, in its deepest meaning, a spiritual bond, built out of the depth of love
between two souls. To consecrate a marriage is to bring it into concordance not with two
wills but with three - that of the two souls involved and that of God. A sacred marriage is a
covenant between two who love each other in God and with God, whose joining becomes an
expression of the desire of each to love and serve God together.

8 ¶ There are many couples whose emotional difficulties with each other make the spiritual
partnership of a sacred marriage difficult to attain or maintain. This doesn’t mean that they
are not participating in a sacred marriage. Sometimes, such a relationship can be
present some of the time and submerged beneath karmic difficulties the rest of the time.
Nevertheless, in order for a sacred marriage to remain sacred, both individuals must be able,
as a foundation, to rise to the level of soul. They must strive to do this even when situations
arise that make life difficult. It is only in this way that the truly sanctified purpose of marriage
can manifest.

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(1.2)WHETHER THE PRESENT WRIT PETITION HAS BEEN FILED

PREMATURELY

9 ¶ A Public Interest Litigation can be filed under Article 32 of the Constitution for enforcement
of Fundamental Rights, as guaranteed by part III of the Constitution.4 In the present case,
there has been no violation of the fundamental rights since, the action taken by the State
was in furtherance of the principle of economic and social justice and thus cannot be
termed as arbitrary or as one which was without the application of the mind. Moreover, in
the present case there has been no forceful Sexual intercourse by the respondent and nothing
has been done to the Petitioner. Hence when there is no damnus, the Petitioner cannot seek a
remedy. The respondent maintains the applicability of the maxim, interest reipublicae ut sit
finis litium i.e. “In the interest of the state, there should be an end to litigation.” This
fundamental maxim is the basis for the conception of Res judicata, as also the principle of
Judicial Infallibility. In addition, Res judicata pro veritate occipitur, or a judicial decision
must be accepted as correct.5

10 ¶ In Govt. of A.P v. A.P Jaiswal, the court observed the importance of consistency in judicial
decisions.6 “Consistency is the cornerstone of the administration of justice. It is consistency
which creates confidence in the system and this consistency can never be achieved without
respect to the rule of finality. It is with a view to achieve consistency in judicial
pronouncements; the courts have evolved the rule of precedents, principle of stare decisis etc.
These rules and principles are based on public policy and if these are not followed by courts
then there will be chaos in the administration of justice.” Moreover, when this matter has
already been dealt in Independent Thought v. Union of India7, thus principle of Res
Judicata is applicable here. Therefore, the respondents submit that the petition is not
maintainable.

4
Andhra Industrial Works v.. Chief Controller of Imports and Ors, AIR 1974 SC 1539 ¶ 10, Guruvayur
Devaswom Managing Committee v. CK Rajan and Ors. (2003) 7 SCC 546 ¶ 50, BALCO Employees Union
(Regd.) v. Union of India (2002) 2 SCC 333
5
Mulla, Code Of Civil Procedure 69 (14thed, 2004)
6
Appeal (civil) 4799-4844 of 1997;
7
(2018)1 SCC (Cri)13

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(1.3)THE PRESENT PIL IS NOT MAINTAINABLE AS IT WAS FILED IN THE

INDIVIDUALS INTEREST.

11 ¶ In the present case it is clearly stated in the fact of the case itself that respondent is merely
demanding intercourse and it is not mention anywhere in the fact of the case that there is a
violation of fundamental rights of the petitioner whereas there is only mere presumptions
that there is infringement of fundamental right by demanding sexual intercourse. Also
deeply moved by the debate, The petitioner finally decided to fight for her rights and what
she thought was a blatant injustice against her persona as it is given in the fact of the case
itself that the petitioner filed the current PIL by getting influenced by a watching a debate
show on television on the topic of marital rape.
12 ¶ When a particular person is the object and target of a petition styled as PIL, the court has to
be careful to see whether the attack in the guise of public interest is really intended to
Unleash a private vendetta, personal grouse or some other mala fide object.8

(1.3.1) PUBLIC INTEREST LITIGATION DOES NOT MEAN SETTLING DISPUTES

BETWEEN INDIVIDUALS PARTIES.

13 ¶ In the present case the NGO has invoked the jurisdiction of the Hon’ble Court by hearing the
grievance from Nidhi. The relationship between Nidhi and Subodh was a matrimonial
relationship and there are sufficient remedies under the provisions of IPC and CrPC, and
other laws of the which can provide the redressal to her grievance. Thus a PIL does not mean
settling disputes between individuals parties.9 Therefore the Jurisdiction of the Supreme
Court under Art. 32 can be invoked only when Fundamental Right has been infringed10. No
question other than relating to a Fundamental Right will be determined in a proceeding under
Art. 3211. Thus, where there is no infringement of Fundamental Right or scope for
enforcement of any Fundamental Right, the writ petition is not maintainable on the fragile
ground12. In the instant matter, no Fundamental Right has been infringed.

8
Neetu v. state of Punjab (2007) 10 SCC 614; Ashok kumar Pandey v. State of W.B,(2004) 3 SCC 349; B.Singh
(Dr.) v. Union of India,(2004) 3 SCC 363, P. Seshadari v. S.Mangati Gopal Reddy,(2011) 5 SCC 484 at
pp.494,493
9
Ramsharan autyanuprasi v. Union of india 1989 supp (1) scc 251: AIR 1989 SC 549; Sachidanand Pandey v.
State of W.B, (1987) 2 SCC 295
10
Gopal das v. Union of india, AIR 1955 SC 1
11
Coffee bd. V. Joint c.t.o, AIR1971 sc 870
12
Federation of bar association in karnatka v. Union of India, (2000) 6 SCC 715

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14 ¶ Moreover, infringement of Fundamental Right cannot be founded on remote of speculative

grounds. There is no such action which infringes or poses a threat to fundamental right of a
citizen. Mere apprehension that the petitioner would be deprived of his fundamental right
is not enough to invoke the jurisdiction of the court under article 3213

15 ¶ Looking at the NCRB suicide statistics as many as 62,000 married men are committing suicide
every year (which is more than double suicide by women). With domestic issues comprising of
marital issues being the single largest reason for male suicide in India, making India as suicide
capital of world. Many men and their families have committed suicide because of stigma and
the taboo of the tags attached right at the moment person is falsely accused of dowry
harassment, rape or any such crime so any law which is capable should not came into
existence.

(1.4) RIGHT TO CONJUGAL RELATIONSHIP

16 ¶ A person when gets married be it wife or husband anywhere in the world loses his/her right to
perform sexual act with anyone other than spouse in other word married man and woman
cannot have sex outside marriage even it is with consent and it becomes ground of divorce14.
So when a person is married, he or she is giving consent to spouse to have sex and any sexual
act cannot be termed as rape.

17 ¶ If there is a physical harm to either of parties, it may be called a sexual assault for which there
are already laws. There are two corresponding rights involved on one hand there is right to say
no and on another hand right to have conjugal relationship between spouses. These two should
go hand in hand so that marital relationship may sustain during lifetime of spouse.

18 ¶ In the present case Nidhi and Subodh marriage according to Hindu rituals and customs. There
are two corresponding rights involved on one hand there is right to say no and on another hand
right to have conjugal relationship between spouses. These two should go hand in hand so that
marital relationship may sustain during lifetime of spouse.

13
Magan bhai v. Union of India, (1970) 3 SCC400
14
Joseph Shine v. UOI (2018) 1 SCC (Cri) 470

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19 ¶ For a happy married life, there has to be understanding between the husband and the wife and
if there is breach of understanding, legal recourse should be available to spouses but in no
circumstances husband should be branded as “Rapist”.

20 ¶ The restitution of conjugal rights basically consists of the right of a spouse to demand that his
or her- though more often his than her- spouse cohabit with him after she has ‘withdrawn from
his society’. Away from the misty world of legal euphemisms, we all know what this means:
that you can be forced to sleep with a somewhat less than pleasant person against your wishes.
A legal commitment to love in a marriage is a serious thing indeed, which only warns us that
we must proceed with such a choice very carefully.

21 ¶ Marital rape is so destructive because it betrays the fundamental basis of the marital
relationship, because it questions every understanding you have not only of your partner and
the marriage, but of yourself. You end up feeling betrayed, humiliated and, above all, very
confused. Conjugal rights for sexual consummation had not been fulfilled, then such a
marriage is deemed to be a failure, void or lapse. The main legal aspect for valid marriage is
consummation or sexual interaction15.

ISSUE 2:

WHETHER EXCEPTION II OF THE INDIAN PENAL CODE CONSTITUTIONALLY VALID

OR NOT?

15
AYSHA v. OZIR HASSAN ,(2013) SCC MAD 1770

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22 ¶ It is humbly submitted to this Hon’ble Court that exception II of IPC is with regard to
preservation of the sacred institution of marriage, also the other remedies are sufficient to deal
with the matrimonial issues related to husband and wife as seen in the present case the wife
was unable to utilize the same, and the NGO merely upon her grievance filed the PIL before
the Honourable Court Thus the Exception II of IPC is Constitutionally valid as;

(2.1) MARITAL RAPE MAY BECOME PHEONEMENON WHICH MAY

DESTABALIZE THE INSTITUTION OF MARRIAGE

23 ¶ What may appear to be marital rape to an individual wife, it may not appear so to others. As to
what constitutes marital rape and what would constitute marital non- rape needs to be defined
precisely before a view on its criminalisation is taken

24 ¶ Merely deleting the exception that provides protection to husbands from prosecution for the
offence of rape, may not stop marital rape. “Moral and social awareness” plays a vital role in
stopping such an act. If all sexual acts by a man with his own wife will qualify to be marital
rape, then the judgment as to whether it is a marital rape or not will singularly rest with the
wife.

25 ¶ And removal of protection given to husband under section 375 will result in a law which will
be of such nature that a chances of its misuse will be so high and innocent husband shall be left
with no remedy and would be subjected to cruelty on part of wives.

Criminalizing marital rape apart from destabilizing institution of marriage may become a
phenomenon which may become an easy tool for harassing husband. Supreme court and
High court in various cases already observed misuse of section 498A of Indian Penal code16

26 ¶ Merely deleting the exception that provides protection to husband for prosecution for the
offence, rape may not stop marital rape “moral and social awareness” plays a vital role in
stopping such act. A Danish proverb says that a deaf husband and happy wife are always happy
couple.
16
MAJNU RAM KALITA V. STATE OF ASSAM ,(2009)13 SCC 330.
BIBI PARWANA KHATOON V. STATE OF BIHAR (2017) 6 SCC792

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27 ¶ Marriage is not casual commerce. A mere sexual commerce, without the intention of
cohabitation and bringing up children would not constitute marriage. Marriage is a contract of
greatest importance in civil institution, and is charged with vast variety of rights and
obligations17. The institution of marriage has to be preserved as contemplated under the law 18.
Marriage in Indian society is considered to be a sacred institution; it is very foundation of
stable family and a civilized society19

28 ¶ The essence of marriage is a sharing a common life, a sharing of all happiness that life has to
offer and all misery that has to be faced in life, an experience of the joy that comes from
enjoying, in common, things of the matter and of the spirit and from showering love and
affection on one’s offspring. Living together is a symbol of such sharing in all its aspects.
Living apart is a symbol indicating the negation of such sharing. It is indicative of a disruption
of a essence of marriage20. Marital rape laws would destroy many marriages by preventing any
possible reconciliation.

(2.2) THE FACT THAT IT IS CRIMINALIZED IN OTHER COUNTRIES CAN NOT BE

APPLIED IN INDIAN CONTEXT

29 ¶ The country has its own unique problems due to various factors like literacy, lack of financial
empowerment of the majority of females, mind-set of the society, vast diversity, poverty etc.
and these should be considered carefully before criminalizing marital rape. 21

30 ¶ In India, development is a mixed bag of opportunities as well as neglect and deprivations.

There are few areas like the metropolitan centres and other developed enclaves that have all
modern facilities available to small section of its population. at the other extreme of it, there
are large rural areas and the slums in the urban areas that do not have basic amenities like
potable water, education and health infrastructure available to majority of this population.

17
SMT. SATYABHAMA NAYAK V. NARENDRA KUMAR NAYAK AIR 1997ORI47
18
ASHWANI KUMAR KOHLI V. SMT. ANITA 1998(2) AWC1531; II (1998) DMC664
19
PROF. KUSUM, FAMILY LAW 1 BY LEXIS NEWIS
20
SHRI. VIDHYANIDHI DALMIA V. SMT. NILANJANA DALMIA 150(2008) DLT19; I (2008)
DMC848;2008(102) DJR611
21
WOMEN AND CHILD DEVLOPMENT MINISTER – MANEKA GANDHI

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31 ¶ It is a well-established fact that majority of schedule cast, schedule tribe, landless agricultural
labourers, poor farmers, slum dwellers, etc. are the most marginalised lot.

India with population of over 1.32 billion is ranked 130 amongst 189 countries of the world in
terms of Human Development Index. With the composite HDI value of 0.640. India finds itself
grouped with countries showing medium human development22.

32 ¶ Not only this there is a huge difference between HDI of different states there are few
developed states like Maharashtra, Punjab, Haryana, Gujarat and Delhi that have per capita
income of more than 4000rs per year and there are large number of poorer states like Uttar
Pradesh, Madhya Pradesh, Bihar, Orissa etc. which have recorded per capita income less than
2000rs per year.

33 ¶ In India there is also huge difference in Gender Development Index (GDI) GDI of women in
India is 2,722 per capita whereas GDI of men is 9,729 23. Moreover, the literacy rate of women
in India according to 2011 census is 65.46% only 24. While comparing India with west where
marital rape is criminalised we should not ignore the fact that literacy of women in western
world is more than 90%.

34 ¶ This law is only for cosmopolitan, independent women who can live separately without
husband but we should not ignore the fact that most of women who live in rural household
does not have the employment and they are completely dependent upon husband, nearly
more than 48% of rural population is female25 if such type of cases takes place then what will
happen to marriage which is considered as sacrament.

35 ¶ It is true that many countries in the west have criminalized what they call Marital Rape but this
mere fact may not be enough to remove exception in the present act as:

22
http://www.in.undp.org/content/india/en/home/sustainable-development/successstories/india-ranks-130-on-
2018-human-development-index.html (UNDP REPORT )
23
http://hdr.undp.org/sites/all/themes/hdr_theme/country-notes/IND.pdf (UNDP REPORT)
24
PROVISIONAL POPULATION TOTALS – INDIA (CENSUS OF INDIA)
25
http://censusindia.gov.in/2011-prov-results/paper2/data_files/india/Rural_Urban_2011.pdf,
THE HINDU

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a) Most of these countries have rape laws which is gender neutral.

b) Most of those countries does not have other resources available as in India as section
498 of IPC
c) Most of these countries requires to have medical evidence to support the claims of
rape but post the criminal amendment in India no criminal evidence is required.
d) The countries around the world do not term “sex on promise of marriage” as “Rape”
e) Most of these 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 allegation not proved
further.
f) Most of other countries talks about “use of force” in sexual act within spouses which
section 375 does not clarify

36 ¶ The drafters of Indian Penal Code were conscious about the customary practices, the religious
rituals and the ground realty in such a vast country where people live in diverse situations
having different cultural and social background and had consciously created an exception to
the general rule in regard to rape. The wisdom of Legislature to enact such
statutory exceptions, therefore, cannot be termed as arbitrary. Such exceptions, in the light of
the legislative competence of the parliament, cannot be considered to be in violation of Articles
14, 15 or 21 of the Constitution of India.26

2.3) ON WHAT EVIDENCE COURT WILL RELY UPON?

37 ¶ If all sexual acts by a man with his own wife will qualified to be marital rape, then the
judgement as to whether it is marital rape or not will singularly rest with the wife. The
question is what evidences the courts will rely upon in such circumstances as there can be no
lasting evidence in case of sexual acts between a man and his own wife.

26
Dr. Vincent Panikulangara, Lawyer Vs. Union of India and Another (W.P.C. No. 23900 of 2009) Oct-28-2015
Kerala High Court

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38 ¶ Indian courts depend upon evidences so here what will be the evidence though marriage is a
public activity but two persons who are involved in sexual activities i.e. husband and wife is
very private and state has no right to intervene in a bed room of a couple so who will decide
that it is a rape or not because the evidence rest singularly with wife and just on words of wife
the husband should be punished and in case of false charge then how the husband will prove its
innocence so it is very difficult to provide justice.

39 ¶ For instance, in Ireland, where marital rape was made illegal in 1990, by 2016 there had been
only two persons convicted of marital rape. 27 Marital rape remains extremely difficult to
prosecute. Additionally, gender norms that often place wives in subservient positions to their
husbands, make it more difficult for women to recognize spousal rape or feel confident that it
will be addressed by law enforcement
.
40 ¶ In many countries, most often, in practice, there will be no prosecution except in extreme cases
that involve a very high level of violence. There have been many problems with prosecuting
the perpetrators of spousal rape, chief amongst them has been the reluctance of the various
legal systems to recognize it as a crime at all.

41 ¶ However, criminalization has opened a new set of problems. India is one of the 36 countries
that haven’t criminalized marital rape. The National Health and Family Survey-4 for 2015-16
showed that only 5.4% women are the victims of marital rape. This data doesn’t consist of the
numerous figures shown by different NGOs and other women welfare committees.28.

42 ¶ Law against marital rape will be misused is based on an absurd logic that vengeful wives are
waiting to exploit the first opportunity they get to send their husbands to jail.29

27
https://www.irishtimes.com/news/social-affairs/marital-rape-remains-extremely-difficult-
to-prosecute-1.2734172
28
https://thewire.in/gender/indian-law-denies-marital-rape-exists-5-4-married-indians-claim-victims
29
https://thelogicalindian.com/awareness/marital-rape-can-be-proven/

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2.4) LAWS WHICH GAVE SPECIAL STATUS TO WOMEN ARE ALREADY BEING
MISUSED

43 ¶ The life of woman has always been difficult and pitiable due to existing social customs
Practices of time. But today the laws are such that a woman can easily misuse it for her
purpose and benefits.30 The repeatedly misuse of legal protection can lead to new legal
terrorism. In 2005 a panel of Supreme Court called women’s misuse of the provision legal
terrorism.

44 ¶ Special provisions only to be used by women such as 498A, PWDVA, rape laws were enacted
for protection of women are not only being misused but it also does not carry any checks and
balance and any stringent punishment for misuser. The gravity at which matrimonial laws
(particularly section 498A) in India are being misused has become matter of concern and
relook of entire section 498A is needed31.

45 ¶ With such grave misuse of matrimonial laws that it curtails the basic fundamental right, the
right to life and liberty of not only accused but also effects the entire family as once a
complaint or FIR is lodged under 498A or 406 of IPC, it becomes an easy tool in the hands of
the police to arrest or threaten to arrest the husband and other relatives named in FIR without
even considering the intrinsic worth of allegation and making a preliminary investigation 32
.
46 ¶ The Supreme Court of India has observed that false charge of cruelty also amounts to
cruelty33.It is a general notion that in a matrimonial disputes the perpetuator of cruelty is
always to be a husband being the strongest one and subject is always the faire sex i.e. wife. But
it cannot be ruled out that wife never perpetuated cruelty against husband. Earlier instances of
cruelty having being practiced by wife were not highlighted.

30
LALSA MOHINI, “LEGITIMACY OF SECTION 498 OF IPC” CRI. LJ, VOL-117, APRIL P.127,(2011)
31
PREETI GUPTA v. STATE OF JHARKHAND AIR 2010 SC3363
32
137th LAW COMMISSION REPORT
33
ASHOK KUMAR v. VIJAY LAXMI AIR 1992 DEL.182

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47 ¶ The Hon’ble Supreme Court had ruled that men need protection from women making
unsubstantiated domestic harassment claims.34It is clearly stated in the fact of the case itself
that husband is merely demanding Intercourse and not forcing the petitioner conviction of
husband of husband cannot be Based upon such presumption without offence being proved
beyond reasonable doubt35 It is also noted that victims of false cases formed associations and
expressed concerned over the arrest of the accused husband, his family members and even
remote relatives without proper investigation and her relatives led to suicide by many men.

(2.4.1) Adverse Impact of misusing S.498A Indian Penal Code, 1860

48 ¶ Every person who is falsely implicated in criminal complaint or F.I.R is sufferer. A false
complaint has a far reaching impact of social and economic prospect of accused.

Sometimes, a complainant herself is a sufferer, mostly in those cases where complaining wife
has no independent source of livelihood. Because, arrest of near and dear one’s of husband
culminates in divorce between husband and wife and ultimately she is left at mercy of natural
parents. Minor children to marriage are innocent victims, who don’t face legal action but they
do face social problems like, single parenting, criminogenic atmosphere of upbringing which
result in ‘broken personality’.

49 ¶ The criminal trial lead to immense suffering for all concerned. Even ultimate acquittal in
the trial may also not be able to wipe out the deep scars of suffering of ignominy. A large
number of these complaints have led to enormous social unrest affecting peace, harmony
and happiness of the society. Further, tendency of false implication of parties does not have
bearing on genuine cases36

(2.4.2) Protection of Women from Domestic Violence Act 2005: Cruelty to Male

50 ¶ The concept of protection of women against cruelties and tortures have brought, us to a
situation where all protective legislations are being enacted for the benefit and protection of
women only and the male persons and more particularly male spouse are left at lurch and at the
mercy of women who can use and misuse the legislations to suit their objects and ends.

34
RAJESH SHARMA &ORS v. STATE OF U.P & ANR 1265 of 2017
35
BALRAM KUMAWAT v. UNION OF INDIA AIR 1996 SC 2184
36
PREETI GUPTA v. STATE OF JHARKHAND, AIR 2010 SC 3363

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51 ¶ Some of the provisions of protection of women from domestic violence act 2005 are so Biased
in favour of women, which are misusing by them mostly. A magistrate is empowered to pass a
protection order in favour of wife and prohibit the husband from attempting to communicate
the wife including oral, written and telephonic contact under the Protection of Women from
Domestic Violence Act.37

52 ¶ If such husband against whom protection order is issued makes a phone call to his wife, he
has committed an offence under section 31 of this act for which punishment could not be only
rs 20,000 but also one year of imprisonment. Moreover, this offence is cognizable and non
bailable.

The worst part of the legal provision is to be found in section 32(2) of the Act which provide
that on sole testimony of aggrieved person the court may conclude.

(2.4.3) Dowry Prohibition Act – A Bane

53 ¶ Unfortunately, many people abuse power that money brings. Many bride’s family use the
power of dowry to purchase grooms that bride could get on her own merits. Over the years
one thing has been clearly seen is that there are very rare cases brought up when dowry is
demanded and not a single case the dowry givers had been punished. Largely, cases are
registered firstly when some marriage dispute occurs due to various reasons and all the
disputes termed as dowry disputes.

54 ¶ Surprisingly, in the most of these cases the matter is not even brought up or looked down
initially and this way both giving and taking dowry is justified. whenever any problem arises
in a matrimony certain women take the advantage of the anti-dowry laws to harass her
husband and in-laws, and also that now-a-days most of the cases that are filed against the
husband and his family are false. In the year 2011- 10,193 false cases were registered in
2012- 10,235 false cases and in 2013 the number went up to 10,964 false cases against the
husband and his family, in 2015- 10,000 false cases were filed by women against their in-
laws38.
37
S.18(D) OF DOMESTIC VIOLENCE ACT
38
DEEPIKA MAHALE -Dowry laws: ‘Loopholes and possibilities of Misuse’

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55 ¶ Many times women try to rope in all the related members of the family of the husband during
a complained under the Anti- Dowry law39. Like in the case of Kans Raj Vs. State of Punjab 40
, Supreme Court held that, Close relations of the husband cannot be roped in the offense only
on the ground that they were relatives of the husband, in this case the court found that the
fault of the husband, in-laws and other relatives cannot be held to be involved in the demand
of dowry.

2.5) THE 172 ND LAW COMISSION REPORT AND 167 TH REPORT OF

PARLIAMENTARY STANDING COMMITTEE.

56 ¶ The 172nd report of Law Commission titled Review of Rape Laws running into seven
chapters devote one paragraph and one sentence in that paragraph to summarily reject the
demand to criminalise marital rape. Again the 136th page of Parliamentary Committee on

Home Affairs restricts its views to a few sentences and concludes, with circular reasoning, in
this age of nuclear families, “that institution of family is able to resolve the problems”.

57 ¶ Even the Verma Committee report’s reference to desired changes in the attitude of
prosecutors, police officers and society is wrongly construed to mean that it is pointless to
criminalise marital rape. The Committee refers to high rates of marital rape even in societies
where it is criminalized and observes that this is compounded by low conviction rates and
poor reporting. The Verma Committee notes: “Changes in the law therefore need to be
accompanied by widespread measures raising awareness of women’s rights to autonomy and
physical integrity, regardless of marriage or other intimate relationship.”

58 ¶ Clearly, rather than the Verma Committee’s desire to raise awareness among women on
their right to autonomy and physical integrity, the government is more keen on” moral and
social awareness” which is a euphemism for appealing to patriarchal notions of honour that
tell men to respect women and do the right thing.
39
Tripathy S.C Dr, Arora Vibha, ̳Law relating to Women and Children‘, 2017, pg-59
40
AIR 2000 SC 2324

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PRAYER

WHEREFORE, in the light of the facts of the case, issues raised, arguments advanced and
authorities cited it is most humbly and respectfully prayed that this Hon'ble Court may be
pleased to:

1. DECLARE that the present writ petition is not maintainable under Art. 32 of the
Constitution of India;
2. DECLARE that the fundamental rights of the Appellants have not been violated by
provisions under the Indian Penal Code and Exception II to section 375 and the said
provisons shall not be declared void;

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3. Any other order that the Hon’ble Court may consider proper in the facts and
circumstances of the case;

----------------------------------------------------------------------------------------------------------------

THE HON'BLE COURT MAY ALSO BE PLEASED TO PASS ANY OTHER ORDER,
WHICH THIS HON'BLE COURT MAY DEEM FIT IN THE LIGHT OF JUSTICE,
EQUITY AND GOOD CONSCIENCE.

----------------------------------------------------------------------------------------------------------------

All of which is most respectfully prayed

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