PT10

1
2 ND EDITION BAL GANGADHAR TILAK NATIONAL MOOT COURT COMPETITION (ONLINE)
Team Code:10
2nd EDITON BAL GANGADHAR TILAK
NATIONAL MOOT COURT COMPETITION (ONLINE)
IN THE HON’BLE SUPREME COURT OF PINDIA
W.P. NO. 1234/2021
NGO - WOMEN RIGHTS
(APPELLANT)
V.
UNION OF PINDIA
(RESPONDENT)
FOR OFFENCES CHARGED UNDER:
SECTION 375
OF THE PINDIA PENAL CODE, 1860
UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE OF SUPREME COURT
MEMORIAL ON BEHALF OF THE PROSECUTION
MEMORANDUM ON BEHALF OF THE PROSECUTION

2
Table of Contents
List of Abbreviations 4
Index of Authorities 5-7
• Table of Contents 5-7
• Books 7
• Websites 7
• Statutes 7
Statement of Jurisdiction 8
Statement of Facts 9
Issues Raised 10
Summary of Arguments 11-12
Arguments Advanced 13-27
Issue-I: Whether the writ petition brought before the Supreme court of Pindia is 13-17
maintainable?
Issue-II:Whether Marital Rape exception fails all tests of constitutional validity? 17-20
Issue-III:Whether Marital Rape under section 375 of Pindia Penal code is an offence? 20-23
Issue-IV: Whether the consent to marriage is an implied consent to have sexual 24-26
intercourse?
Prayer

3
LIST OF ABBREVIATIONS
& And
AIR All India Report
Anr. Another
Bom CR Bombay Criminal Reporter
PPC Pindia Penal Code
Cr.P.C. Code of Criminal Procedure
Cri LJ / Cr. LJ Criminal Law Journal
Del Delhi
Hon’ble Honorable
IPC Indian Penal Code
M.P. Madhya Pradesh
No. Number
Ori. Odisha
Ors. Others
r/w Read with
Retd. Retired
S./Sec. Section
SC Supreme Court
SCC Supreme Court Cases
St. State
u/s Under Section
v. Versus

4
INDEX OF AUTHORITIES
TABLE OF CASES:
1. A.S.Parveen Akthar v. The Union Of Indistan W.P. No.744 of 1992 SC

2. Abhoy Pradhan vs. State of West Bengal : 1999 Crl. L.J. 3534.
3. All India Democratic Women’s Association (AIDWA) V. Union of India 1989 AIR
1280, 1989 SCR (2) 66
4. Anthony alias Bakthavatsalu : AIR 1960 Madras 308,
5. Arjan Ram vs. The State : AIR 1960 Punjab 303
6. Bachan Singh v State of Punjab AIR 1980 SC 898
7. Bhimrao Harnooji Wanjari vs. State of Mahrashtra : 1975 Mah. L.J. 660.
8. Bodhisattwa Gautam v. Subhra Chakraborty (1996) 1 SCC 490
9. Bodhisattwa Gautam v. Subhra Chakraborty, AIR 1996 SC 922
10. C.R. v. United Kingdom , App No. 20190/92, A/355-C, IHRL 2595 (ECHR 1995)
11. Coralie Mullin vs. Administrator, Union Territory of Delhi and Ors. (1981) 1 SCC 608
12. D.K Basu vs. State of West Bengal (1996)

13. D.S. Nakara & Others v. Union Of Indistan 1983 AIR 130, 1983 SCR (2) 165
14. Delhi Judicial Service v.State Of Gujarat And Ors.1991 AIR 2176, 1991 SCR (3) 936 12
15. Devika Biwas v. Union of India (2019) 8 SCC 1
16. Devipoojak Mukeshkumar v. State Of Gujarat (2021)
17. Eisenstadt v. Baird, 405 U.S. 438
18. Emperor v. Shahu Mehrab AIR 1917 Sind 42
19. Francis Coralie Mullin v. Administrator, Union Territory of Delhi and Ors. (1981) 1
SCC 608

5
20. Francis Coralie Mullin vs. Administrator, Union Territory of Delhi and Ors. 1981 AIR
746, 1981 SCR (2) 516
21. Githa Hariharan Dr. Vandana Shiva vs. Reserve Bank of India: Jayanta
Bandhopadhiyaya, (1999) 2 SCC 228
22. Gopi Shankar vs. State : AIR 1967 Raj. 159
23. Govind v. State of Madhya Pradesh 1975 AIR 1378, 1975 SCR (3) 946
24. Hari Majhi vs. The State : 1990 Crl. L.J. 650
25. Harvender Kaur v. Harmander Singh Choudhry 1984 Del 66
26. Holman vs. The Queen [1970] W.A.R.
27. In Jayanti Rani Panda vs. State of West Bengal and another : 1984 Crl. L.J. 1535
28. In Maneka Gandhi v. Union of India, AIR 1978 SC 597
29. In Mr. X v. Hospital Z (1998) 8 SCC 296
30. Independent Thought v. Union Of India Writ petition (Civil) No. 382 of 2013
31. Indian Harm Reduction Network v. Union of India 2011 SCC Online 715
32. Joseph Shine v. Union of India C. NO. 194 of 2017
33. Karnataka vs. Anthonidas : ILR 2000 Kar. 266
34. Keshavan Madhava Menon v. The State of Bombay - 1951CriLJ 680
35. Kharak Singh v. State of U.P. 1963 AIR 1295 , 1964 SCR (1) 332
36. Kharak Singh v. State of UP & Ors. (1964) 1 SCR 332
37. Maharshi Avadhesh v. State Of U.P AIR 1991 All 52 12
38. Matru Alias Girish Chandra v.State of UP1971 AIR 1050, 1971 SCR (3) 914 12
39. NALSA vs Union of India 2014 (5) SCC 438
40. Navtej Singh Johar v. Union of India AIR 2018 SC 4321; W.P. (Crl.) No. 76 of 2016; D.
No. 14961/2016
41. Neera Mathur v. LIC 1992 AIR 392, 1991 SCR Supl. (2) 146
42. Nimeshbhai Bharatbhai Desai vs State Of Gujarat on 2 April, 2018 SCC
43. Pradeep Tomar And Another v. State Of U.P. And Another on 27 January, 2021
44. Prahlad v. State of Haryana, 2015 (8) SCC 688
45. Prem Chand Garg v. Excise Commissioner 1, U.P., 1963 (Supp.) 1 SCR 885
1 U.P., 1963 (Supp.) 1 SCR 885

6
46. Pritam Singh v. The State1950 AIR 169, 1950 SCR 453 12
47. Puttuswamy v. Union of India, Writ petition (Civil) NO 494 of 2012;(2017) 10 SCC 1;
AIR 2017 SC 4161
48. Queen Empress v. Haree Mythee (1891) ILR 18 Cal 49
49. R. v Clarence, (1888) 22 QBD 23; (1886-90) AII ER 133 CCR,
50. R. v Miller, (1954) 2 AII WR 529: (1954) 2 QB 282: (1954) 2 WLR 138,'
51. R. v R, (1991) 4 AII ER 481
52. R.M.D. Chamarbaugwalla v. The Union of India (UOI) (1957) S.C.R. 874
53. Rajesh Sharma v. State of U.P. SPLC (Crl.) No. 2013 OF 2017
54. Rakheya Bibi v. Anil Kumar ILR 1948 Calcutta 119 12
55. Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and Ors. AIR 1958 SC 538
56. Rao Harnarain Singh vs. State : AIR 1958 Punjab 123
57. RIT foundation v. Union of India W.P. (C) 284/2015
58. Ritesh Sinha v. State of Uttar Pradesh (2019) 8 SCC 1
59. Romesh Thapar v. The State of Madras, 1950 AIR 124
60. Romesh Thapar v. The State of Madras, AIR 37 (1950) SC 124

61. S.P. Gupta v. President Of Indistan And Ors.AIR 1982 SC 149, 1981 Supp (1) SCC 87,
1982 2 SCR 365 12
62. Sakshi v. Union of India and Others [2004 (5) SCC 518]
63. Saleha Khatoon vs. State of Bihar and another : 1989 Crl. L.J. 202
64. Sameen Begam V. Union of Indistan WP: (C) 222/2018 12
65. Saroj Rani v. Sudarshan Kumar Chadha 1984 AIR 1562, 1985 SCR (1) 303
66. Shayara Bano vs. UOI Writ petition (C) No. 118 OF 2016
67. Sree Kumar v. Pearly Karun 1999 (2) ALT Cri 77, II (1999) DMC 174
68. State of Gujarat v. Ambica Mills (1974) 4 SCC 656
69. State of H.P. vs. Mango Ram (2000) 7 SCC 224.
70. State of Karnataka v. Krishnappa (2000) 4 SCC 75
71. State of Mahrashtra v. Madhukar Narayan Mardikar AIR 1991 SC 207
72. State of Punjab v. Gurmit Singh 1996 AIR 1393, 1996 SCC (2) 384
73. State Of Punjab vs Dalbir Singh (2012)

7
74. State v. Cross, 2000
75. State vs Vinod Saini , (Bail App. 2250/2018)
76. Suchita Srivastava & Anr. vs. Chandigarh Administration, 2009 (9) SCC 1
77. Suchita Srivastava and Anr. v. Chandigarh Administration (2009) 9 SCC
78. Suresh Kumar koushal and another v Naz Foundation & others, AIR 2014 SC 563
79. T. Sareetha v. T. Venkata Subbaiah AIR 1983 AP 356
80. The Chairman , Railway Board v. Chandrima Das (2000)
81. Vijayan Pillai @ Babu vs. State of Kerala : 1989 (2) K.L.J.
82. Vinod Saini v. The State (2018)
83. Vishaka v. State of Rajasthan AIR 1997 SC 3011
84. Vishaka vs. State of Rajasthan AIR 1997 SC 3011
85. Xxxxxx vs Xxxxxx ( 2021)
BOOKS:
1. Ratanlal and Dhirajlal, The Indian Penal Code,33rdEd.(2011)

2. P.S.A. Pillai(13th Ed. 2017)
3. Indian Penal Code, 1860 , Padala Rama Reddi
4. International Law And Human Rights, Dr. S.K. Kapoor
5. Landmark Judgment of Supreme Court, N.K. Acharya
6. Human Rights , V.K. Anand
7. Gaur, KD, Criminal Law: Cases and Materials, (6thEd. 2009)
8. Gupta and Dighe, Criminal Manual, (7thEd. 2007)
9. Kelkar, R.V. Criminal Procedure, (5th Ed. 2011)
10. Law relating to cruelty to husband(Divorce and Maintanance of wife), P.K. Das
WEBSITES:
1. http://www.scconline.com
2. http://www.manupatrafast.com
3. http://www.findlaw.com

8
4. http://www.judis.nic.in
5. http://www.indiankanoon.com
6. http://www.legalserviceindia.com
7. http://www.livemint.com
8. http://www.lawaudience.com
9. http://www.criminaldefenselawyer.com
STATUTES:
1. The Code of Criminal Procedure, 1973 (Act 2 of 1973)
2. The Indian Evidence Act, 1872 (Act 18 of 1872)
3. The Indian Penal Code, 1860 (Act 45 of 1860)
4. The Constitution of India

9
STATEMENT OF JURISDICTION
The Petitioners have approached the Hon’ble Supreme Court of Pindia filing Writ petition under
Article 32 of the Constitution of India which reads as under:
“32. Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in
the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may
be appropriate, for the enforcement of any of the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for
by this Constitution

10
STATEMENT OF FACTS
1. The Union of Pindia, situated in Asia, is a secular, democratic country with a dynamic and
liberal economy. It witnesses a lot of social and cultural diversity and at the same time has
a progressive society that while nurturing liberal views, respects diversity all the same. The
Constitution and laws of the Union of Piindia are pari materia to Union of India.
2. A young couple, Jeewan 24 and Swati, 21, from Shivgadh, a city in the Union of Pindia
were in relationship and they wanted to marry each other, but the families of Jeewan and
Swati were against their relationship, as they both belonged to different sub caste of
Hindus. The couple got married on 21st August 2019 after duly complying with all the
provisions of Hindu Marriage Act, 1995.
3. After the marriage, Jeewan and Swati started living separately from their families and Swati
also joined a college as a clerk. The marital life of the couple was going very smooth and
they were happy together. On, 2nd November 2019, Jeewan decided to move with his
parents, because of some family problems. Initially Swati was against the idea of shifting
with her in-laws, but due to the pressure from Jeewan, Swati agreed to live with his parents.
Accordingly, on 6th January 2020 the couple shifted to their in-laws house. First few days
were very cordial between the family and Swati, but slowly things started to change, Swati
was even told to leave her job. All these issues started affecting the marital relation of
Jeewan and Swati and they started having regular fights. In fact in one or two incidences
when Swati was having some heated arguments with her mother-in law, Jeewan badly
scolded Swati in front of his family members.
4. On 15th September, 2020 there was a family function at Jeewan's place and many relatives
and neighbors were present. Suddenly on some issue Swati and Jeewan got into a heated
argument and used abusive language in the presence of family and the neighbors.
Immediately after the incident, Swati decided to leave her marital home for some time and
went back to her parent's place to calm herself down and for mental peace. After the
incident Swati was completely in a state of shock and she stopped talking to Jeewan. In

11
between, Jeewan tried communicating with Swati but she avoided any kind of contact with
him. On the evening of 21st November, 2020, Jeewan texted Swati, requesting her to meet
him and discuss their problems. Swati replied that she will be alone that day as her family
will not be at home and she did not want to meet Jeewan and that she needs more time to
evaluate their relationship. On the same evening, Jeewan, in an intoxicated state visited
Swati's parent's place, where Swati was alone as her family members had gone out for a
function. Swati and Jeewan, both had a heated argument, this angered Jeewan who lost his
control and forced himself upon Swati against her will and consent and had Sexual
Intercourse with her. Swati, initially resisted but being alone and fearing her life,
surrendered to the will of Jeewan. Thereafter, Jeewan left the place. The very next day,
Swati, in a state of shock, narrated her ordeal to her family who immediately, went to the
nearest police station and lodged a complaint against Jeewan for committing Rape with
Swati. The police registered the FIR No. 28/2020 against Jeewan for the offence of Rape
under section 375 and cruelty under section 498A, sexual harassment and punishment for
sexual harassment Section 354 A under the Pindia Penal Code 1860 on 22nd
November,2020
5. In the Union of Pindia, next assembly elections were to be conducted within a year. Thus,
the case was highlighted and widely debated in media. The police was under pressure as
the same was being made a political issue with respect to women safety and women rights.
Many women NGO's came forward demanding justice for Swati. The police started the
investigation and filed the charge sheet within a month of registering the FIR. The trial
court of Shivgadh expedited the matter due to societal pressure and the trial was concluded
within six months. The trial court in its judgment dated 28th May, 2021 held that, the
accused was not convicted for rape as the same could not be proved by the State. The trial
court in its judgment further held that the accused was guilty for the offence of cruelty
under section 498A of Pindia Penal Code 1860 and was convicted with two years
imprisonment and a fine of Rs. 10,000 was imposed. Further, he was held guilty for sexual
harassment under Section 354 A of Pindia Penal Code 1860 and convicted with a fine of
Rs.25000/- .
6. Aggrieved by the judgment of the Trial Court, Swati lodged an appeal dated 2nd July, 2021,
before the High Court of India to convict Jeewan for the offence of Rape under Section

12
375 of India Penal Code 1860. Swati contended that she was not given a fair trial. It was
contented by her that if Jeewan was convicted by the trial court for the offence mentioned
under section 354A Pindia Penal Code 1860 for sexual harassment then why he couldn’t
be convicted for the offence of Rape under section 375 of Pindia Penal Code 1860.
Aggrieved by the order of the Trial court, Swati filed an appeal in High Court of India but
the Hon’ble High Court of Pindia dismissed the appeal, on the basis that her marriage
existed at the time when Jeewan had forced sexual intercourse with her. Further Hon’ble
High Court of Pindia stated that the laws of Union of Pindia did not recognize Marital
Rape. Hence, Jeewan was acquitted from the charges of rape under section 375 of Pindia
Penal Code 1860.
7. Meanwhile, the petition of Swati in the High Court of Pindia was dismissed and the
judgment of the trial court was “upheld by the order dated” 10th August, 2021. Aggrieved
by the judgment of the High Court, Swati with the help of an NGO 'women rights' filed a
writ petition before the Supreme Court of Union of Pindia, W.P. No. 1234 /2021 where
the issues were raised before the court seeking justice for Swati and making marital rape
an offence under the existing penal laws of Union of Pindia. In the Petition Swati also
stated the social issue attached to such problems, as in the absence of any law the women
in the country have become vulnerable at the hands of their husbands and hence the
Supreme Court should give certain guidelines in the above matter in the absence of any
existing laws and that the Supreme Court must direct the Union of Pindia to bring laws for
the protection women in such cases. Swati further pleaded for justice in the absence of any
existing laws through such extraordinary jurisdiction as the court deems fit.

13
ISSUES RAISED
1. WHETHER THE WRIT PETITION BROUGHT BEFORE THE SUPEREME COURT

OF PINDIA IS MAINTAINABLE?
2. WHETHER MARITAL RAPE EXCEPTION FAILS ALL TESTS OF
CONSTITUTIONAL VALIDITY?
3. WHETHER MARITAL RAPE UNDER SECTION 375 OF PINDIYA PENAL CODE IS
AN OFFENCE?
4. WHETHER THE CONSENT TO MARRIAGE IS AN IMPLIED CONSENT TO HAVE
SEXUAL INTERCOURSE?
SUMMARY OF ARGUMENTS

14
ISSUE 1: WHETHER THE WRIT PETITION BROUGHT BEFORE THE SUPEREME

COURT OF PINDIA IS MAINTAINABLE?
It is humbly submitted the Hon’ble Supreme Court of Pindia that under Article 32 of Pinidan
Constitution that any person aggrieved by the violation of fundamental right have the right to
approach the supreme court seeking enforcement of such rights recognized by the constitution. In
the case at hand, it is apparent that Marital rape violates the Article 14, Article 21 of the Pindian
Constitution . Hence here the Writ petition filed by the petitioner is maintainable.
ISSUE II : WHETHER MARITAL RAPE EXCEPTION FAILS ALL TESTS OF

It is submitted before the Hon’ble court that Marital Rape fails all tests of constitutional validity.
Women, suffering rape at the hands of a man who is their husband, gets their fundamental rights
violated. It violates a married woman’s right to equality (Article 14), the right to life with dignity
(Article 21) and the right to self expression (Article 19(1) (a), all of which are guaranteed as
fundamental right in part III of the constitution. Violation of such rights makes Marital Rape
unconstitutional.
ISSUE III: WHETHER MARITAL RAPE IS AN OFFENCE IN PINDIA UNDER

SECTION 375 OF PINDIA PENAL CODE?
It is humbly submitted before the Hon’ble court that Marital Rape is an offence in Pindia under
Section 375 of Pindian Penal Code. Marital Rape refers to undesirable sexual intercourse by a man
with his own wife which is achieved by unlawful force, threat of force, or physical violence, or
when she is incompetent to give her consent to such sexual intercourse. Sexual intercourse without
consent or forced sexual intercourse by a husband with his wife should be treated equally as an
offence just as any physical violence by a husband against the wife is treated as an offence.
Exception 2 to Section 375 of the Indian Penal Code, 1860 (henceforth ‘IPC’) provides for an
explicit exemption for rape within a marriage provided the wife is above 18 years. However, at the
same time exception 2 of section 375 is regardless of that fact that, it was done with or without her

15
consent. Marital Rape specifically deals with non consensual sexual intercourse and thus such non
consensual sexual intercourse is an offence under Section 375 of Pindiya Penal Code.
ISSUE IV - WHETHER THE CONSENT TO MARRIAGE IS AN IMPLIED CONSENT

TO HAVE SEXUAL INTERCOURSE?
It is submitted before the Hon’ble court that the consent to marriage is not an implied consent to
have sexual intercourse. There is a notion that an irrefutable presumption of consent is thought to
exist when a man and woman enter the institution of marriage . However, there is a need to
question about what consent refers here. The disputed concept of implied consent does not stand
good on the face of equity, a good conscience, and justice. The consent here was given just for the
matrimonial relationship and the consent to live together under the same roof and to accept the
other person as the party in a union that is formed under specific personal laws. But, nowhere the
consent for sexual intercourse came into the picture. This blanket concept of consent is bad law in
nature and shall be declared morally wrong and against natural justice.

16
ARGUMENTS ADVANCED
ISSUE 1: WHETHER THE WRIT PETITION BROUGHT BEFORE THE SUPEREME

COURT OF PINDIA IS MAINTAINABLE?
1. It is humbly submitted the Hon’ble Supreme Court of Pindia that under Article 32 of Pinidan
Constitution that any person aggrieved by the violation of fundamental right have the right to
approach the supreme court seeking enforcement of such rights recognized by the constitution. In
the case at hand, it is apparent that Marital rape violates the Article 14, Article 21 of the Pindian
Constitution . Hence here the Writ petition filed by the petitioner is maintainable.
2. Public Interest Litigations(herein after PIL) or social interest litigations at the instance of
'public spirited citizens' for the enforcement of Constitutional and other legal rights of any person
or group of persons who because of their poverty or socially or economically disadvantaged
position are unable to approach Court for relief. "Where a legal wrong or lega injury is caused to
person or to a determinate doss of persons by reason of violation of any constitutional or legal
right and such person or determinate class of persons is by reason of poverty, helplessness of
disability or socially or economically disadvantaged position unable to approach the Court for
relief, any member of the public can maintain an application for an appropriate direction or order
writ in the High Court under Article 226 or in case of breach of any Fundamental Right to this
Court under Article 322
3. In the present instance, the purpose of criminal laws prohibiting rape or indeed any kind of
physical violence or unwanted touching is to maintain a person’s bodily integrity. The marital
rape exception and the lenient rape laws for separated women fail the test of reasonable
intelligible differential having any rational nexus to the object of protecting women’s physical
integrity. v. It is sometimes argued that the object of the impugned provisions is to protect men
against misuse of laws by their wives, in case of a bitter marriage/divorce. However, the said
object is not only unfounded and misplaced but also disentitles innocent rape victims who face
2
S.P. Gupta v. President Of Indistan And Ors., AIR 1982 SC 149,

17
violent sexual assault by their husbands (such as the intervener in the present matter, Kushboo
Safi3, without adequate protection or support from the law. Indeed any law may be misused, the
law of cheating under Section 420 is often cited when contracts break down in order to
pressurize a defaulting party, however the laws on perjury and malicious prosecution are
appropriate remedies rather than the decriminalization of cheating. It is respectfully stated that
when any systemic power is displaced a little, such as patriarchal power, the backlash is strong to
suppress such challenge.
4. Maharshi Avadhesh v. State Of U.P4 in this case Hon‘ble court held that, The public interest
which the petition is claimed to serve is preservation of Nation's sovereignty,security, integrity,
dignity and honour, credibility of public services and impartiality, independence and credibility
of country's judiciary. In our case MADADGAR (herein after 2nd appellant) have public interest
of protect the rights of women and public welfare of discrimination against women. So this PIL
is maintainable.
5. In the case5 of Dr. Subramanian Swamy v. Director, CBI , made on 6th May 2014 in W.P.(C)
38/1997 with W.P.(C) 21/2004 at para 57 it was held that” “the Constitution permits the State to
determine, by the process of classification, what should be regarded as a class for purposes of
legislation and in relation to law enacted on a particular subject. There is bound to be some
degree of inequality when there is segregation of one class from the other. However, such
segregation must be rational and not artificial or evasive. In other words, the classification must
not only be based on some qualities or characteristics, which are to be found in all persons
grouped together and not in others who are left out but those qualities or characteristics must
have a reasonable relation to the object of the legislation. Differentia which is the basis of
classification must be sound and must have reasonable relation to the object of the legislation. If
the object itself is discriminatory, then explanation that classification is reasonable having
rational relation to the object sought to be achieved is immaterial.” In this case there is not any
absolute need to classify rape based on the marital status.
3
vide W.P (C) 5858/2007 )
4
AIR 1991 All 52
5
AIR 2014 8 SC 682

18
6. In A.S.Parveen Akthar v. The Union Of Indistan 6 The prayers made in those petitions under
Article 32 included prayers to declare as void and unconstitutional, aspects of Muslim Personal
Law concerning polygamy and unilateral divorce by the husband without the consent of his wife
and without resort to the judicial process. In our case, 2nd appellant
7. praying to declare Polygamy; Nikah Halala; Nikah Mutah as void and unconstitutional. So,
this case is maintainable under Article 32.
8. State of Maharashtra v. Prabhu7, and Andhra Pradesh State Financial Corporation v./s GAR
Re-Rolling Mills and Anr8, Courts must maintain the social balance by interfering where
necessary for the sake of justice and refuse to interfere where it is against the social interest and
public good. We humbly request the Hon‘ble Court to accept this case as it stands in this case.
9. D.S. Nakara & Others v. Union of Indistan 9, The Supreme Court will now be ready to
interfere under Article to 32 wherever and whenever any injustice is caused or being caused by
the State action to the poor and helpless persons who cannot approach the Court.
MADADGAR‘s lawsuit is valid. Because, 1st appellant in her father‘s illegal custody and
Fatima, who is suffering alone in the community with her two children. The 2nd appellant is
continuing due to their inability of 1st appellant and 3rd appellant.
10. Hence, The Petitioner‘s Counsel humble submits that the Petition filled by the petitioners is
maintainable before the Hon‘ble Supreme Court of Pindia.
ISSUE II: WHETHER MARITAL RAPE EXCEPTION FAILS ALL TESTS OF

1. It is submitted before the Hon’ble court that Marital Rape fails all tests of constitutional
validity. Women, suffering rape at the hands of a man who is their husband, gets their
fundamental rights violated. It violates a married woman’s right to equality (Article 14),
the right to life with dignity (Article 21) and the right to self expression (Article 19(1) (a),
6 W.P. No.744 of 1992 SC

7
(1994 (2) SCC 481)
8
(AIR 1994 SC 2151)
9
11 1983 AIR 130, 1983 SCR (2) 165

19
all of which are guaranteed as fundamental right in part III of the constitution. Violation
of such rights makes Marital Rape unconstitutional.
2. The law in India does not criminalize marital rape, i.e. the Indian Penal Code, 1860 does
not recognize that it is a crime for a husband to rape his wife. The reasons for this are
manifold and can be found in various reports of the Law Commission, Parliamentary
debates and judicial decisions. When other instances of violence by a husband toward wife
was criminalised, there was no reason for rape alone to be shielded from the operation of
law.
3. The reasons range from protecting the sanctity of the institution of marriage to the already
existing alternative remedies in law. In this paper, we depict how these arguments advanced
It is contended that decriminalizing marital rape is erroneous. Through an analysis of
Article 14 of the Constitution of India, it is argued that the marital rape exception clause
found in the Indian Penal Code, 1860 is wholly unconstitutional.
4. In August 2021, the Kerala High Court in a significant judgment said that marital rape,
although not penalized in India, would be a good ground for divorce. A Division Bench of
Justices A Muhamed Mustaque and Kauser Edappagath held, “We, therefore, are of the
view that marital rape is a good ground to claim divorce…In modern social jurisprudence,
spouses in marriage are treated as equal partners and husband cannot claim any superior
right over wife either with respect to her body or with reference to individual status.
Treating wife's body as something owing to husband and committing sexual act against
her will is nothing but marital rape.”
5. As Ld. ASJ Dr. Kamini Lau, North West Rohini, Delhi stated in State vs Vinod Saini, on
3/3/2014 "(T)hough our Legislatures are yet to take a serious note of the rampant marital
sexual abuse which the women in our country suffer silently as has happened in the present
case but that does not mean that a battered wife who has been sexually abused and has
invoked the Legal System of our Country is not entitled to any State assistance which help
is already available to other victims of sexual abuse? She is the responsibility of the State
and s required to be taken care of just as any other victim of aggravated sexual assault and
abuse and the State cannot abdicate its responsibility and she cannot be discriminated only
because she happens to be the wife of the sexual aggressor.

20
6. In Romesh Thapar v. The State of Madras 10 the Hon’ble Supreme Court held that, “Where
a law purports to authorise the imposition of restrictions on a fundamental right in language
wide enough to cover restrictions both within and without the limits of constitutionally
permissible legislative action affecting such right, it is not possible to uphold it even so far
as it may be applied within the constitutional limits, as it is not severable. So long as the
possibility of its being applied for purposes not sanctioned by the Constitution cannot be
ruled out, it must be held to be wholly unconstitutional and void.”
7. the Constitutional bench of the Supreme Court in W.P.(C) 118 of 2016 titled Shayara Bano
vs. UOI11, the Hon’ble Court with a majority in the ratio of 3:2 declared that a Triple Talaq
at one go by a Muslim husband which severs the marital bond, as bad in constitutional law.
Justice R. Nariman at para 28 at page 335 of the judgment relied upon a judgment of the
US Supreme Court, decided on June 26, 2015, wherein the U.S. Supreme Court had
observed that: “The dynamic of our constitutional system is that individuals need not await
legislative action before asserting a fundamental right. An individual can invoke a right to
constitutional protection when he or she is harmed, even if the broader public disagrees
and even if the legislature refuses to act.”
8. Justice Nariman in Shayara Bano (supra) further relied upon the case of Prem Chand Garg
v. Excise Commissioner12, U.P., 1963 (Supp.) 1 SCR 885 and vide para 26-29 opined that
in cases of such constitutional invalidity, the courts must act and it was not sufficient that
Courts send the matter back to the legislature to remedy such a wrong. Thus, under Article
13(1) of the Constitution, triple talaq at one go, was struck down, as being opposed to
fundamental rights under Article 14, 15, 19 and 21 of the Constitution. Thus in the present
instance also, the impugned provisions, if and when adjudicated as being in violation of
constitutional provisions (i.e. arbitrary and unreasonable, having no rational nexus with the
object sought to be achieved with the classification of rape victims as per their marital
status), will mandatorily have to be struck down and declared void.
9. All women’s physical integrity flows directly from the fundamental right to life, dignity
and bodily privacy; her right to sexual and reproductive autonomy flows directly from the
10 , AIR 37 (1950) SC 124 (para 13)

11
in W.P.(C) 118 of 2016
12
U.P., 1963 (Supp.) 1 SCR 885

21
right to liberty. i. In the case of Suchita Srivastava v. Chandigarh Administration13, the

Supreme Court recognised a woman’s right to make reproductive choices as a dimension
of “personal liberty” under Article 21 of the Constitution. At para 22, the Court explicitly
stated that: “it is important to recognize that reproductive choices can be exercised to
procreate as well as to abstain from procreating. The crucial consideration is that a
woman’s right to privacy, dignity and bodily integrity should be respected. This means that
there should be no restriction whatsoever on the exercise of reproductive choices such as a
woman’s right to refuse to participate in sexual activity or alternatively the insistence on
use of contraceptive methods. ” The above observations of the Hon’ble Court do not make
a distinction between the rights of married women and unmarried women. The right to
abstain from sexual reproductive activity has been recognised for all women, irrespective
of their marital status; the impugned provisions of the Indian Penal Code as also the
Criminal Code are in clear violation of the basic fundamental rights of women and must be
struck down and declared as unconstitutional.
10. . A nine judge bench of the Hon’ble Supreme Court stated in Justice (Retd) KS Puttuswamy
vs Union of India14, decided that all citizens, including married women, have a right to
privacy. On page 167 Chandrachud J speaking for himself and three others observed that:
The constitutional validity of laws making sodomy an offence was challenged in National
Coalition for Gay and Lesbian Equality v Minister of Justice275 (1999). It was held that
the common law offence of sodomy was inconsistent with the Constitution of the Republic
of South Africa, 1996. Ackermann J. described how discrimination leads to invasion of
privacy and held 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. The way in which we gi ve expression
to our sexuality is at the core of this area of private intimacy. If, in expressing our sexuality,
we act consensually and without harming one another, invasion of that precinct will be a
breach of our privacy… On page 198, four judges on the nine judge bench stated: Many
writers on feminism express concern over the use of privacy as a veneer for patriarchal
domination and abuse of women. Patriarchal notions still prevail in several societies
13 2009 (9) SCC 1

14
Writ Petition (CIVIL) NO 494 OF 2012

22
including our own and are used as a shield to violate core 19 constitutional rights of women
based on gender and autonomy. As a result, gender violence is often treated as a matter of
“family honour” resulting in the victim of violence suffering twice over – the physical and
mental trauma of her dignity being violated and the perception that it has cause an affront
to “honour”. Privacy must not be utilised as a cover to conceal and assert patriarchal
mindsets.
11. The Supreme Court, without discriminating between married and unmarried women, has
already recognized rape as a violation of the principles enshrined and guaranteed by the
Constitution of India and has also recognized the rauma and humiliation suffered by all
rape victims, who have a human has a right to life with dignity 15.
12. In the case of Francis Coralie Mullin vs. Administrator, Union Territory of Delhi and Ors.
(1981) 1 SCC 608 the Apex Court held that Right to life and personal liberty included the
rights of a detenue to confer with legal advisor and meet family members and friends and
any unreasonable restrictions this regard would violate Articles 21 and 14. Examining the
scope of right to life under Article 21 the apex court at para 8 stated that: “We think that
the right to life includes the right to live with human dignity and all that goes along with it,
………. Now obviously, any form of torture or cruel, inhuman or degrading treatment
would be offensive to human dignity and constitute an inroad into this right to live and it
would, on this view, be prohibited by Article 21 unless it is in accordance with procedure
prescribed by law, but no law which authorizes and no procedure which leads to such
torture or cruel, inhuman or degrading treatment can ever stand the test of reasonableness
and non-arbitrariness: it would plainly be unconstitutional and void as being violative of
Articles 14 and 21. It would thus be seen that there is implicit in Article 21 the right to
protection against torture or cruel, inhuman or degrading treatment which is enunciated in
Article 5of the Universal Declaration of Human Rights and guaranteed by Article 7 of the
International Covenant on Civil and Political Rights. Thus the Apex Court recognized that
even though a person’s freedom could be taken away under due process of law, such a
person would still be entitled to a live with human dignity including the right to meet his
family and friends.
15 Prem Shankar Shukla vs. Delhi Administration (1983) 3 SCC 526

23
13. Similarly, in the case of D.K Basu vs. State of West Bengal 16, it was held that Article 21
protects the individuals from any form of torture or cruel, inhuman, or degrading treatment
and at para 22 of the judgment the Court held that a prisoner does not shed his right to life
and dignity. Similarly, the right of married women to choose, the right to indulge or abstain
from sexual intercourse with the husband cannot be far from the rights of a prisoner under
law; married woman do not shed their right to choose/consent and be free from rape simply
by being married. vi. Reiterating the principles and scope of Article 21 as recognized in
the Francis Coralie case (Supra), the apex court in Bodhisattwa Gautam v. Subhra
Chakraborty17, further at para 9 stated that “Women also have the right to life and liberty;
they also have the right to be respected and treated as equal citizens. Their honour and
dignity cannot be touched or violated. . They also have the right to lead an honourable and
peaceful life. Women, in them, have many personalities combined. They must have the
liberty, the freedom and, of course, independence to live the roles assigned to them by
Nature so that the society may flourish as they alone have the talents and capacity to shape
the destiny and character of men anywhere and in every part of the world.”
At para 10 the Court further stated that: “Rape is thus not only a crime against the person
of a woman (victim), it is a crime against the entire society. It destroys the entire
psychology of a woman and pushes her into deep emotional crises. It is only by her sheer
will power that she rehabilitates herself in the society which, on coming to know of the
rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated
crime. It is a crime against basic human rights and is also violative of the victim's most
cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21. To
many feminists and psychiatrists, rape is less a sexual offence than an act of aggression
aimed at degrading and humiliating women. The rape laws do not, unfortunately, take care
of the social aspect of the matter and are inept in many respects.”
14. . The Court further laid out parameters for providing assistance to rape victims, including
compensation and legal assistance by the State. Again in the case of Prahlad v. State of
Haryana, 2015 (8) SCC 68818, the Supreme Court at para 17 held that “It has to be borne
16
1997 (1) SCC 416
17
, AIR 1996 SC 922
18
2015 (8) SCC 688

24
in mind that an offence of rape is basically an assault on the human rights of a victim. It is
an attack on her individuality. It creates an incurable dent in her right and free will and
personal sovereignty over the physical frame. ……. Anyone who indulges in a crime of
such nature not only does he violate the penal provision of the Indian Penal Code but also
right of equality, right of individual identity and in the ultimate eventuality an important
aspect of rule of law which is a constitutional commitment. The Constitution of India, an
organic document, confers rights. It does not condescend or confer any allowance or grant.
It recognises rights and the rights are strongly entrenched in the constitutional framework,
its ethos and philosophy, subject to certain limitation. Dignity of every citizen flows from
the fundamental precepts of the equality clause engrafted under Articles 14 and right to life
under Article 21 of the Constitution, for they are the "fon juris" of our Constitution. The
said rights are constitutionally secured.” Therefore by not recognizing non-consensual
sexual intercourse within marriage as the crime of rape and not ensuring adequate
protection and criminal remedies for married women is a clear and gross violation of
Article 14 and Article 21 of the Constitution of India.
ISSUE III: WHETHER MARITAL RAPE IS AN OFFENCE IN PINDIA UNDER

SECTION 375 OF PINDIA PENAL CODE?
1. It is humbly submitted before the Hon’ble court that Marital Rape is an offence in Pindia
under Section 375 of Pindian Penal Code. Marital Rape refers to undesirable sexual
intercourse by a man with his own wife which is achieved by unlawful force, threat of
force, or physical violence, or when she is incompetent to give her consent to such sexual
intercourse. Sexual intercourse without consent or forced sexual intercourse by a husband
with his wife should be treated equally as an offence just as any physical violence by a
husband against the wife is treated as an offence. Exception 2 to Section 375 of the Indian
Penal Code, 1860 (henceforth ‘IPC’) provides for an explicit exemption for rape within a
marriage provided the wife is above 18 years19. However, at the same time exception 2 of
section 375 is regardless of that fact that, it was done with or without her consent. Marital
19
Indian Penal Code, 1860, Sec.375 Exception 2, No. 45 of 1860

25
Rape specifically deals with non consensual sexual intercourse and thus such non
consensual sexual intercourse is an offence under Section 375 of Indian Penal Code.
MARITAL RAPE AND ITS SOCIETAL OUTLOOK
2. Marital rape is well understood as an unwanted intercourse by a man with his wife obtained
by force, threat of force, or physical violence or when she is unable to give consent. It is
one of non-consensual act of violent perversion by a husband against the wife where she is
abused physically and sexually. Marital Rape is one of the most evil acts which exists in
India and is no lesser than the offence of rape rather it is the species of rape 20. Married
women in India are subjects of such offence resulting it as one of the biggest threats to
gender justice in India. India society has never considered Marital rape as a problem. It is
rarely opposed by anyone in the Indian society due to a variety of reasons. India is probably
the only country where husbands enjoys the status of a god; the idea of a Pati Parmeshwar
(literally, ‘husband god’) manifests itself in inequitable ways in the dynamic between a
husband and his wife. Being part of this India culture, women accept and endure abusive
behaviour by their husbands with extremely bad resignation. India feels some sense of
pride in having one of the lowest divorce rates in the world. Research indicates that marital
rape often has severe and long lasting consequences for women.21
3. The exemption for marital rape stems from a long outdated notion of marriage which
regarded wives as no more than the property of their husbands22. According to the common
law of Coverture, a wife was deemed to have consented at the time of the marriage to have
intercourse with her husband at his whim. Moreover, this consent could not be revoked. As
far back as 1736, Sir Matthew Hale declared: ''The husband cannot be guilty
of rape committed by himself upon his lawful wife, for by their mutual matrimonial
consent and contract the wife hath given herself up in this kind unto her husband which she
cannot retract.'23
20
Dr. Raj Kumar and Manish Dalal , Marital Rape In India : A Critical Study
21 The National Online Resource Center on Violence Against Women, National Resource Center on Domestic
Violence, Marital Rape : New Research And Directions, Februar, 2006
22
Report on Amendments to Criminal Law chaired by Justice J.S. Verma (Retired) para 72, 73 and 74
23
Sir Matthew Hale -- History of the Pleas of the Crown, 1 Hale PC (1736) 629, S. Fredman, Women and the Law
(OUP, 1997) pp. 55-57

26
4. Rape within marriage in the twenty first century, continues to be legalised by criminal laws
of 1860. Exception 2 to Section 375 of the Indian Penal Code, 1860 (henceforth ‘IPC’)
provides for an explicit exemption for rape within a marriage. Section 376B of the Indian
Penal Code, 1860 and Section 198B of the Criminal Procedure Code, 1973 provide for
unequal treatment of a rape victim separated from her husband at the time of rape. The
Exception to Section 375 was drafted on the basis of the Victorian patriarchies of 1860 that
did not recognize men and women as equal. However, In contemporary India the
abovementioned impugned provisions that legalise marital rape and treat the rape of
separated women unequally, are fundamentally opposed to women’s constitutionally
recognized basic rights of equality, right to life and dignity
SECTION 375 AND ITS EXCEPTION CLAUSE
5. Section 375 of the IPC is extracted hereunder 24;
" A man is said to commit "rape" if he---
a. penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes
her to do so with him or any other person; or
b. inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the
urethra or anus of a woman or makes her to do so with him or any other person; or
c. manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra,
anus or any ~ of body of such woman or makes her to do so with him or any other person; or d.
applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any
other person, under the circumstances falling under any of the following seven descriptions:--
First-- Against her will.
Secondly -- Without her consent.
24 Indian Penal Code, 1860, Sec.375 Exception 2, No. 45 of 1860

27
Thirdly.--With her consent, when her consent has been obtained by putting her or any person in
whom she is interested, in fear of death or of hurt.
Fourthly.--With her consent, when the man knows that he is not her husband and that her consent
is given because she believes that he is another man to whom she is or believes herself to be
lawfully married.
Fifthly.--With her consent when, at the time of giving such consent, by reason of unsoundness of
mind or intoxication or the administration by him personally or through another of any stupefying
or unwholesome Substance, she is unable to understand the nature and consequences of that to
which she gives consent.
Sixthly.--With or without her consent, when she is under eighteen years of age.
Seventhly.--When she is unable to communicate consent.
Explanation I.--For the purposes of this section, "vagina" shall also include labia majora.
Explanation 2.--Consent means an unequivocal voluntary agreement when the woman by words,
gestures or any form of verbal or non-verbal communication, communicates willingness to
participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the
reason only of that fact, be regarded as consenting to the sexual activity.
Exception I.--A medical procedure or intervention shall not constitute rape.
Exception 2.--Sexual intercourse or sexual acts by a man with his own wife, the wife not being
under fifteen years of age, is not rape."
6. The definition of rape codified in section 375 of the Indian Penal Code includes all forms
of sexual assault involving non-consensual intercourse with a woman. However, Exception
2 of Section 375 exempts unwilling sexual intercourse between a husband and a wife over
fifteen years of age from thus immunizes such acts from prosecution.
7. Exception 2 of section 375 of the IPC (‘exception clause’) does not state any reason for the
exclusion of sexual intercourse or sexual acts between a man and his wife from the purview

28
of rape. Since the crux of the focus of the section is on consent, it is possible that an
irrefutable presumption of consent operates when the relationship between the victim and
the perpetrator is that of marriage. However, at the same time, it is also possible that this
was a legislative decision to exclude the operation of this section from married
relationships given the sanctity that this institution has assumed in our society. This is
probable since there are sections in the IPC where spouses are exempt from its
application.25
8. Thus, Exception 2 of section 375 exempts husband from the offence of rape if the
intercourse is done with the consent of his wife. And if the wife does not consents for such
intercourse it does not fall into the purview of exception 2 of section 375 resulting it to be
the offence of rape under section 375.
CONSENT TO SEXUAL INTERCOURSE
9. "Consent is an act of reason, accompanied with deliberation, the mind weighing, as in a

balance, the good and evil on each side." 26 It refers to the case of Holman vs. The Queen :
[1970] W.A.R. wherein it was held that "there does not necessarily have to be complete
willingness to constitute consent.” It was held "that adult female's understanding of nature
and consequences of sexual act must be intelligent understanding to constitute 'consent'” 27.
Consent within penal law, defining rape, requires exercise of intelligence based on
knowledge of its significance and moral quality and there must be a choice between
resistance and assent. Legal consent, which will be held sufficient in a prosecution for rape,
assumes a capacity to the person consenting to understand and appreciate the nature of the
act committed, its immoral character, and the probable or natural consequences which may
attend it.28
10. The Courts in India have by and large adopted these tests to discover whether the consent
was voluntary or whether it was vitiated so as not to be legal consent. In Rao Harnarain
Singh vs. State : AIR 1958 Punjab 123 it was observed :- " A mere act of helpless
resignation in the face of inevitable compulsion, acquiescence, non- resistance, or passive
25 See e.g., The Indian Penal Code, 1860, §§136, 212 & 216.
26 In Stroud's Judicial Dictionary (Fifth Edition) page 510
27 Words and Phrases Permanent Edition Volume 8A at page 205
28 (See : People vs. Perry, 26 Cal. App. 143).

29
giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be
deemed to be 'consent' as understood in law. Consent, on the part of a woman as a defence
to an allegation of a rape, requires voluntary participation, not only after the exercise of
intelligence, based on the knowledge, of the significance and moral quality of the act, but
after having freely exercised a choice between resistance and assent.
11. High Court of Kerala in the case of Vijayan Pillai Babu vs. State of Kerala : 1989 (2)
K.L.J. Balakrishnan, J observed that :- “In order to prove that there was consent on the part
of the prosecutrix it must be established that she freely submitted herself while in free and
unconstrained position of her physical and mental power to act in a manner she wanted.
Consent is an act of reason accompanied by deliberation, a mere act of helpless resignation
in the face of inevitable compulsion, non resistance and passive giving in cannot be deemed
to be "consent". Consent means active will in the mind of a person to permit the doing of
the act of and knowledge of what is to be done, or of the nature of the act that is being done
is essential to a consent to an act. Consent supposes a physical power to act, a moral power
of acting and a serious and determined and free use of these powers. Every consent to act
involves submission, but is by no means follows that a mere submission involves consent.
12. In Jowitt's Dictionary of English Law II Edn. Vol. 1 explains consent as : 'An act of reason
accompanied with deliberation, the mind weighing, as in a balance, the good or evil on
either side’.
Consent supposes three things –
1. a physical power,
2. a mental power and
3. a free and serious use of them.
Hence it is that if consent be obtained by intimidation, force, mediated imposition, circumvention,

surprise or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of
the mind.' "
13. In re Anthony alias Bakthavatsalu : AIR 1960 Madras 308, Ramaswami, J. in his
concurring opinion fully agreed with the principle laid down in Rao Harnarain Singh's case

30
and went on to observe :- "A woman is said to consent only when she agrees to submit
herself while in free and unconstrained possession of her physical and moral power to act
in a manner she wanted. Consent implies the exercise of a free and untrammelled right to
forbid or withhold what is being consented to; it always is a voluntary and conscious
acceptance of what is proposed to be done by another and concurred in by the former."
14. It was observed in Rao Harnarain Singh vs. State : AIR 1958 Punjab that, Submission of
one’s body under the influence of fear or terror is not consent. There is a difference between
consent and submission. Every consent involves a submission but the converse does now
follow and a mere act of submission does not involve consent. Consent of the girl in order
to relieve an act, of a criminal character like rape, must be an act of reason, accompanied
with deliberation, after the mind has weighed as in a balance, the good and evil on each
side, with the existing capacity and power to withdraw the assent according to one's will
or pleasure.
15. From the above observation, It can be concluded that Marital rape existence in India is a
disgraceful offence that has scarred the trust and confidence in the institution of marriage.
A large population of women has faced the brunt of the non-criminalization of the practice.
The concept of consent n sexual activity is all about having communication about and it
should not be implied if the consent is given for one time. Every time, the consent should
be taken before indulging into it. Giving consent for one activity does not automatically
means the consent for increased or repeated sexual contact. This breaks the very idea of
what basically law propagates that when parties agree to marry and give consent to live
together, there is an implied consent to have sexual intercourse. Wife is no more than a
subservient chattel of her husband 29 and concluded that “a rapist remains a rapist regardless
of his relationship with the victim.”30
16. There is an another conception that striking off exception to section 375 will amount to
create new offence. However, it must noted that Striking down the Marital Rape Exception
(MRE), will not lead to the creation of a new offence. Deepak Gupta, J. in Independent
Thought case31 held that, there can be no manner of doubt that by partly striking down
29
Committee on Amendments to Criminal Law chaired by Justice J.S. Verma (Retired)
30
European Commission of Human Rights
31
W.P. (civil) No. 382 of 2013 (@ para 81-85 pdf. p. 951-952, Vol II)

31
Section 375 IPC, no new offence is being created. The offence already exists in the main
part of Section 375 IPC. What has been done is only to read down Exception 2 to Section
375 IPC to bring it in consonance with the Constitution and POCSO.”
17. Thus from the above observation, It can be concluded that Marital Rape is an offence
section 375 of IPC. And in the case at hand, the prosecutrix, without her consent, was
dragged into the act of sexual intercourse by force and out of fear of life she surrendered
herself to his will. Though surrendered , she never consented to such an act thus marking
it as an offence of Marital Rape under 375 of IPC.
ISSUE IV - WHETHER THE CONSENT TO MARRIAGE IS AN IMPLIED CONSENT

TO HAVE SEXUAL INTERCOURSE?
1. It is submitted before the Hon’ble court that the consent to marriage is not an implied
consent to have sexual intercourse. There is a notion that an irrefutable presumption of
consent is thought to exist when a man and woman enter the institution of marriage.32
However, there is a need to question about what consent refers here. The disputed concept
of implied consent does not stand good on the face of equity, a good conscience, and
justice. The consent here was given just for the matrimonial relationship and the consent
to live together under the same roof and to accept the other person as the party in a union
that is formed under specific personal laws. But, nowhere the consent for sexual
intercourse came into the picture. This blanket concept of consent is bad law in nature and
shall be declared morally wrong and against natural justice 33.
2. Marriage is considered to be a sacred institution that forms the bedrock of our society.
Marital means a relationship between a woman and a man which is voluntarily taken by
the parties as per their personal governing laws and once that ceremony is concluded, the
parties are further recognized as husband and wife. However, In such sacred relationship
if one’s fundamental dignity is violated then it would be an massive foolishness to accept
32
Raveena Rao Kallakuru & Pradyumna Soni – Criminalisation of Marital Rape In India : Understanding its
constitutional, cultural and Legal Impact, 11 NUJS L.Rev. 1 (2018)
33
Mr. Sahajveer Baweja (B.A.LL.B (Hons)), Rajiv Gandhi National Univeristy Of Law, “ Marital Rape And the
Disputed Concept of Implied Consent”, Volume 1, Issue3, April 2019

32
in life. It was observed that when parties agree to marry and give consent to live together,
there is an implied consent to have sexual intercourse. It comes in the package of marriage.
The husband gets irrevocable license of having intercourse whenever he wants with her
wife. The consent of wife for having sexual intercourse does not amount to any value and
even such sexual relationship with the use of force and threat will not amount to rape and
will be covered under the scope of functional perspective of marriage. This is the theory
of ‘implied consent’ justifying the marital rape. Here, an irrefutable presumption of
consent is thought to exist when a man and woman enter the institution of marriage.
Marriage is considered to be a civil contract and consent to sexual activities is thought to
be the defining element of this contract.
3. Having regard to the position of law prevailing as on date in this country, the wife cannot
initiate proceedings against her lawfully wedded husband for the offence of rape
punishable under section 376 of the IPC. One of the origins of the concept of a marital
exemption from rape laws (a rule that a husband cannot be charged with the rape of his
wife) is the idea that by marriage a woman gives irrevocable consent for her husband to
have sex with her any time he demands it as mentioned earlier.
4. Consequently, the law must specifically state that a marital relationship or any other similar
relationship is not a valid defence for the accused, or relevant while determining whether
consent existed or not and that it was not be considered a mitigating factor for the purpose
of sentencing. This report discussed how the immunity granted in case the perpetrator is
the husband of the victim stemmed from the outdated notion of women being the property
of men and irrevocably consenting to the sexual needs of their husband.It remarked how
this immunity has been withdrawn in a number of jurisdictions and in the modern concept
of marriages between equals, such an exception clause cannot stand.
5. Marital rape, existence in India, is a disgraceful offence that has scarred the trust and
confidence in the institution of marriage. A large population of women has faced the brunt
of the non-criminalization of the practice. Under the English Law, husband and wife were
considered as one person. In 1736. Sir Mathew Hale stated: "The husband cannot be guilty
of a rape committed by himself upon his lawful wife, for by their mutual matrimonial
consent and contract the wife hath given herself up in this kind unto her husband. which

33
she cannot retract." 34 Commenting upon Hale's proposition, Lord Keith stated: "The
position is that that part of Hale's proposition which asserts that a wife cannot retract the
consent to sexual intercourse which she gives on marriage has been departed from in a
series of decided cases. On grounds of principles there is no good reason why the whole
proposition should not be held inapplicable in modern times,35
6. Marital rights were exempted in R V. R for the first time and had been appealed as far as
the House of Lords, and it followed the trio of cases since 1988 where the marital rights
exemption was upheld. The leading judgment, unanimously approved, was given by Lord
Keith of Kinkel. He stated that the contortions being performed in the lower courts in order
to avoid applying the marital rights exemption were indicative of the absurdity of the rule,
and held, agreeing with earlier judgments in Scotland and in the Court of Appeal in R v R,
that "the fiction of implied consent has no useful purpose to serve today in the law of rape"
and that the marital rights exemption was a "common law fiction" which had never been a
true rule of English law. R's appeal was accordingly dismissed, and he was convicted of
the rape of his wife.36
7. However in India , A woman can protect her right to life and liberty, but not her body,
within her marriage. If the husband lays an assault on her wife, then that would constitute
an offence under the IPC. If the very same husband lays an assault and forces his wife to
have sexual intercourse, he would be liable for assault but not for an offence of rape only
because there is a valid marriage between the two and an patriarchal idea of implied
consent at the time of marriage. The human rights of women include their right to have
control over and decide freely and responsibly on matters related to their sexuality,
including sexual and reproductive health, free of coercion, discrimination and violence.
Women do not divest themselves of such right by contracting marriage for the simple
reason that human rights are inalienable.
34
History of the Pleas of the Crown: 1 Hale P C (1736) 629.
35
Ibid, at p. 488." [Emphasis supplied]
36
R V. R (1992) 94 Cr. App R 21, 3 WLR 767, UKHL 12, Fam Law 108 (1991)

34
8. Husbands need to be reminded that marriage is not a license to forcibly rape their wives.
A husband does not own his wife's body by reason of marriage. By marrying, she does not
divest herself of the human right to an exclusive autonomy over her own body and thus,
she can lawfully opt to give or withhold her consent to marital coitus. A husband aggrieved
by his wife's unremitting refusal to engage in sexual intercourse cannot resort to felonious
force or coercion to make her yield. The basic argument which is advanced in favour of
these so-called 'laws' is that consent to marry in itself encompasses a consent to engage
into sexual activity. But, an implied consent to engage into sexual activity does not mean
consent to being inflicted with sexual violence. It is often felt that as in sadomasochistic
sexual acts, in marital rape women are presumed to have consented to the violence. If
assuming that an implicit general consent to sexual intercourse is given by a wife on
marriage to her husband, then that consent is capable of being withdrawn by agreement
of the parties or by the wife unilaterally removing herself from cohabitation and clearly
indicating that consent to sexual intercourse had been terminated. 37
9. By bringing to light the equality among both the husband and wife, we also negate the
argument that marriage entails consent of the wife to sexual intercourse. The problem with
debates surrounding consent to sexual activity in a marriage is that it is often viewed in
two clearly demarcated categories. First, that marriage is irrevocably linked to sexual
relationship. The second is that marriage does not indicate any engagement in a sexual
relationship. Legally, the assertion that marriage is completely disassociated from sexual
relationships cannot hold much weight which is only evidenced by how so many of the
claims for divorce rest on sexual relationships. However, marriage cannot presuppose
consent to every sexual activity. Even if we are to visualise sexual relationships are a term
in the contract of marriage, consent to sexual intercourse at all points in the marriage cannot
hold good in view of general rules to contract law. A contract which is ambiguous, contrary
to public policy and is uncertain is not a valid contract.38 By this logic, in a contract of
marriage wherein woman consents to sexual intercourse at all points of time without
consideration to her bodily requirements will not hold against the test of contract
37
Regina (Respondent) and R. (Appellant), (1992) 1 AC 599
38
See The Indian Contract Act, 1872, §§23 and 29

35
10. Consent plays a major role in Marital Rape. The concept of consent is very clear and does
not take us to any ambiguous conclusion. Basically, consent means an agreement or a
concord between the parties to engage in any activity. Such activity can be a contract, a
partnership, and a sexual relationship or may be even in any other category. The value of
consent is permissible in nature. Everything depends on the consent. If the other person has
consent of the other person then both the parties fall under the legal framework and if one
party does not have the consent of the other party and still acts on his behalf, then he has
to face the legal repercussions. Certainly, the acceptance of submitting ourselves to the
current situation with an intention to be a part of it shall be called consent.
11. In re Anthony alias Bakthavatsalu : AIR 1960 Madras 308, Ramaswami, J. in his
concurring opinion fully agreed with the principle laid down in Rao Harnarain Singh's case
and went on to observe :- "A woman is said to consent only when she agrees to submit
herself while in free and unconstrained possession of her physical and moral power to act
in a manner she wanted. Consent implies the exercise of a free and untrammeled right to
forbid or withhold what is being consented to; it always is a voluntary and conscious
acceptance of what is proposed to be done by another and concurred in by the former."
12. The concept of consent in sexual activity is all about and it should not be implied if the
consent is given for one time. Every time, the consent should be taken before indulging
into it. Giving consent for one activity does not automatically means the consent for
increased or repeated sexual contact. Consent must be voluntary and is not implied. It must
be noted that consent mat not be valid if a person has been subjected to any action that
affects her and takes the consent by provoking her emotion, or by corrupting her
psychology or pressurizing her financially or even in case of threat and intimidation. There
is also a limitation that given consent can be changed at any stage. This means that once
the consent is given, it can be revoked at any time before the act takes place or even at time
of action. Withdrawing of consent at any point is functional in nature and it is totally in
proportion to the comfort level of a human being. Though clear communication is required
that my body is no more comfortable in the continuance of this activity and it needs to be
stopped. So basically, Consent is the communication to the other person that I am willing
to get involved in a certain activity and I have all the intention to be a part of it.

36
While hearing a case seeking the striking down of Adultery as an offence, Justice DY
Chandrachud of the Supreme Court in 2018 made his stand on the issue of sexual
autonomy of married women clear. He observed during that hearing,“Does a woman or
man lose their degree of sexual autonomy after marriage. According to me ‘no'...The right
to say “no” (to sex) should be there after marriage also."
13. In India, it is not new to say that after the marriage we put the freedom of women in the
prisons of men. We traditionally strip women of their independence and put them in the
male custodianship for their next surviving years. However, all these outdated violating
ideas of tradition must be eradicated and with changing times, we need to respect the
dynamic factor of women’s independence. Thus it means that the concept of implied
consent should with time needs to broaden up and a separate consent should hold good
during the question of sexual intercourse in marriage.
14. Thus in the case at hand, though the prosecutrix is married to the accused and are under
the marital relationship, there is no existence of the concept of implied consent and it cannot
be taken as an defence by the accused. As pointed earlier, the concept of consent in sexual
activity is all about and it should not be implied if the consent is given for one time. Every
time, the consent should be taken before indulging into it. Giving consent for one activity
does not automatically means the consent for increased or repeated sexual contact.
Moreover, the prosecutrix was held by force to such an act and her eventual submission for
such an act will not constitute consent for sexual intercourse. Thus, the accused has
apparently committed the offence of Marital Rape. Thus , it can be concluded that there is
not such implied consent of sexual intercourse in the package of marriage.

37
PRAYER
Wherefore, in light of the issues raised, arguments advanced and authorities cited, may this
Hon‘ble Court be pleased to:
1. DECLARE that the Writ petition brought before the supreme court of Pindia is
maintainable
2. DECLARE that the marital rape exception fails all tests of constitutional validity and is
unconstitutional
3. DECLARE that Marital Rape under Section 375 of Pindya Penal Code is an offence.
4. DECLARE that the consent to marriage is not an implied consent to have sexual
intercourse.
And for this act of kindness the Counsels on behalf of the petitioner, shall duty bound forever
humbly pray.

38

PT10

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

PT10

Uploaded by

Copyright:

Available Formats

1

2 ND EDITION BAL GANGADHAR TILAK NATIONAL MOOT COURT COMPETITION (ONLINE)

2nd EDITON BAL GANGADHAR TILAK

NATIONAL MOOT COURT COMPETITION (ONLINE)

IN THE HON’BLE SUPREME COURT OF PINDIA

W.P. NO. 1234/2021

NGO - WOMEN RIGHTS

FOR OFFENCES CHARGED UNDER:

OF THE PINDIA PENAL CODE, 1860

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE OF SUPREME COURT

MEMORIAL ON BEHALF OF THE PROSECUTION

MEMORANDUM ON BEHALF OF THE PROSECUTION

Index of Authorities 5-7

• Table of Contents 5-7

Summary of Arguments 11-12

Arguments Advanced 13-27

MEMORANDUM ON BEHALF OF THE PROSECUTION

MEMORANDUM ON BEHALF OF THE PROSECUTION

1. A.S.Parveen Akthar v. The Union Of Indistan W.P. No.744 of 1992 SC

12. D.K Basu vs. State of West Bengal (1996)

MEMORANDUM ON BEHALF OF THE PROSECUTION

1 U.P., 1963 (Supp.) 1 SCR 885

MEMORANDUM ON BEHALF OF THE PROSECUTION

59. Romesh Thapar v. The State of Madras, 1950 AIR 124

60. Romesh Thapar v. The State of Madras, AIR 37 (1950) SC 124

MEMORANDUM ON BEHALF OF THE PROSECUTION

74. State v. Cross, 2000

75. State vs Vinod Saini , (Bail App. 2250/2018)

1. Ratanlal and Dhirajlal, The Indian Penal Code,33rdEd.(2011)

MEMORANDUM ON BEHALF OF THE PROSECUTION

MEMORANDUM ON BEHALF OF THE PROSECUTION

MEMORANDUM ON BEHALF OF THE PROSECUTION

MEMORANDUM ON BEHALF OF THE PROSECUTION

MEMORANDUM ON BEHALF OF THE PROSECUTION

MEMORANDUM ON BEHALF OF THE PROSECUTION

1. WHETHER THE WRIT PETITION BROUGHT BEFORE THE SUPEREME COURT

MEMORANDUM ON BEHALF OF THE PROSECUTION

ISSUE 1: WHETHER THE WRIT PETITION BROUGHT BEFORE THE SUPEREME

ISSUE II : WHETHER MARITAL RAPE EXCEPTION FAILS ALL TESTS OF

ISSUE III: WHETHER MARITAL RAPE IS AN OFFENCE IN PINDIA UNDER

MEMORANDUM ON BEHALF OF THE PROSECUTION

ISSUE IV - WHETHER THE CONSENT TO MARRIAGE IS AN IMPLIED CONSENT

MEMORANDUM ON BEHALF OF THE PROSECUTION

ISSUE 1: WHETHER THE WRIT PETITION BROUGHT BEFORE THE SUPEREME

MEMORANDUM ON BEHALF OF THE PROSECUTION

MEMORANDUM ON BEHALF OF THE PROSECUTION

ISSUE II: WHETHER MARITAL RAPE EXCEPTION FAILS ALL TESTS OF

6 W.P. No.744 of 1992 SC

MEMORANDUM ON BEHALF OF THE PROSECUTION

MEMORANDUM ON BEHALF OF THE PROSECUTION

10 , AIR 37 (1950) SC 124 (para 13)

MEMORANDUM ON BEHALF OF THE PROSECUTION

right to liberty. i. In the case of Suchita Srivastava v. Chandigarh Administration13, the

13 2009 (9) SCC 1

MEMORANDUM ON BEHALF OF THE PROSECUTION

15 Prem Shankar Shukla vs. Delhi Administration (1983) 3 SCC 526

MEMORANDUM ON BEHALF OF THE PROSECUTION

MEMORANDUM ON BEHALF OF THE PROSECUTION

ISSUE III: WHETHER MARITAL RAPE IS AN OFFENCE IN PINDIA UNDER

MEMORANDUM ON BEHALF OF THE PROSECUTION

MARITAL RAPE AND ITS SOCIETAL OUTLOOK

MEMORANDUM ON BEHALF OF THE PROSECUTION

SECTION 375 AND ITS EXCEPTION CLAUSE

5. Section 375 of the IPC is extracted hereunder 24;