TEAM CODE: TC-17P

B.M. SREENIVASAIAH MEMORIAL 7th NATIONAL MOOT

COURT COMPETITION 2022

BEFORE THE SUPREME COURT OF SINDHU DESH

Special Leave Petition No. ______ of 2022

MEMORIAL FILED ON BEHALF OF PETITIONERS

The Republic of Sindhu Desh ……. Petitioner

v.

Laila ..……. Respondent

IMPLEADING PARTIES
KARNATAKA HARRASED HUSBANDS ASSOCIATION AND SHRUTHYALAYA

Most Respectfully Submitted to the Hon’ble Chief Justice & Other

Companion Judges of the Supreme Court of India

COUNSELS APPEARING ON BEHALF OF ‗PETITIONERS‘

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TABLE OF CONTENTS

TABLE OF CONTENTS ............................................................................................................. 1

TABLE OF CASES....................................................................................................................... 2
INDEX OF AUTHORITIES ........................................................................................................ 4
LIST OF ABBREVIATIONS ...................................................................................................... 5
STATEMENT OF JURISDICTION ........................................................................................... 6
STATEMENT OF FACTS ........................................................................................................... 7
ISSUES RAISED........................................................................................................................... 8
SUMMARY OF ARGUMENTS .................................................................................................. 9
ARGUMENTS ADVANCED ..................................................................................................... 11
ISSUE 1 ................................................................................................................................... 11
Whether the Special Leave Petition filed under Article 136 of the Constitution of Sindhu
Desh is proper and/or valid since the State is under an obligation to treat men and
women equally? ...................................................................................................................... 11
ISSUE 2 ................................................................................................................................... 14
(i) Whether Exception 2 of Section 375 of the Sindhu Desh Penal Code is violative
of Articles 14, 19, and 21 of the Constitution? .................................................................... 14
(ii) Whether forceful intercourse by a man with his wife against her will and/or without
her consent can be criminalized as constituting ‘Rape’ under provisions of Section 375 of
the Penal Code? ...................................................................................................................... 20
ISSUE 3 ................................................................................................................................... 28
Whether the offence of Rape under Section 375 of the Sindhu Desh Penal Code is
required to be made gender neutral? ................................................................................... 28
PRAYER ...................................................................................................................................... 33

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TABLE OF CASES

1. Aravali Golf Club v. Chander Hass Civil Appeal No. 5732 of 2007 (Arising out of
S.L.P(C) No. 3358 of 2007.
2. Arvind Mohan Sinha v. Amulya Kumar Biswas & Ors (1974) 4 SCC 222.
3. C.C.E v. Standard Motor Products, AIR1989 SC 1298.
4. Chief Administrator cum Jt. Secretary, Government of India v. D. C. Dass, AIR 1999 SC
186
5. Dastane v. Dastane 1975 AIR 1534, 1975 SCR (3) 967.
6. Durga Shankar Mehta v. Thakur Raghuraj Singh and Ors1954 AIR 520, 1955 SCR 287
7. Dwarkadas Shrinivas v. Sholapur Spinning & Weaving Co. Ltd 1954 AIR 119, 1954 SCR
674
8. E.P. Royappa v. State of Tamil Nadu,AIR 1974 SC 555,1974 SCR (2) 348
9. Haryana State Industrial Corporation. v. Cork Mfg. Co. (2007) 8 SCC 359
10. Indian Drugs & Pharmaceuticals Ltd. v. Workmen and S.C.Chandra v. State of
Jharkhand (2007) 8 SCC 279.
11. Khushboo Saifi v. Union Of India And Anr,W.P.(C)No. 5858/2017 & CM No.
35853/2021
12. Natural Resources Allocation and State of M.P. v. Rakesh Kohli (2012) 6 SCC 312.
13. Pinakin Mahipatray Rawal v. State of Gujarat (2013) 10 SCC 48.
14. Priya Patel v. State of MP (2006) 6 SCC 263.
15. R.K. Garg v. U.O.I,1982 133 ITR 239 SC, (1981) 4 SCC 675, 1981 1 SCR 947, 1982 (14)
UJ 12 SC
16. Ramkrishna Dalmia v. Justice S.R. Tendolkar, AIR 1958 SC 538.
17. Rishu Aggarwal v. Mohit Goyal MAT.APP. (F.C.) 110/2021 & CM APPL. 41458/2021.
18. Sir Chunilal Mehta and Sons. Ltd. v. Century Spinning and Manufacturing Co. Ltd., AIR
1962 SC 1314.
19. State of Karnataka v. State of Tamil Nadu and Ors., Civil Appeal No. 2453 of 2007
decided on December 9, 2016.

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20. Union of India (UOI) and Ors. v. M.P. Singh and Ors(27.02.1990 - SC) :
MANU/SC/0202/1990.
21. Vidhya Viswanathan v. Kartik Balakrishnan,(2014) 15 SCC 21.

22. Villianur Iyarkkai Padukappu Maiyam v. Union of India ,(2009) 7 SCC 561.

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INDEX OF AUTHORITIES

-CONSTITUTIONAL PROVISIONS-

1. Article 13(2) of the Constitution of India.

2. Article 14 of the Constitution of India.
3. Article 15 of the Constitution of India.
4. Article 19 of the Constitution of India.
5. Article 21 of the Constitution of India.
6. Article 136 of the Constitution of India.

-STATUTES-

1. Indian Penal Code, 1860.

2. Protection Of Women from Domestic Violence Act, 2005.
3. POCSO Act, 2012.
4. Indian Evidence Act, 1872.
5. Code of Civil Procedure, 1908.
6. Hindu Marriage Act, 1955.

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LIST OF ABBREVIATIONS

AIR All India Reporter

Anr. Another
Art. Article

Ors. Others
Vol. Volume
SCR Supreme Court Reports
SCC Supreme Court Case
SC Supreme Court
SLP Special Leave Petition
Sec Section
HMA Hindu Marriage Act
POCSO Act Protection of Children From Sexual Offences Act
DV Protection of Women from Domestic Violence

v. Versus
Ed. Edition
MRE Marital Rape Exception
MR Marital Rape
NFHS National Family Health Survey
U.K. United Kingdom
U.S. United States
PUCL-K Peoples Union of Civil Liberty-Karnataka
NCRB National Crime Records Bureau

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STATEMENT OF JURISDICTION

THE APPELLANT HAS APPROACHED THE HON’BLE SUPREME COURT OF

INDIA UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA, WHICH READS
AS UNDER:

Special leave to appeal by the Supreme Court. —

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence, or order in any
cause or matter passed or made by any court or tribunal in the territory of India.

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

KHHA AND SHRUTHYALAYA HAVE FILED IMPLEADING APPLICATIONS

UNDER ORDER 1 RULE 10 OF CPC:-

The Court may at any stage of the proceedings, either upon or without the application of
either party, and on such terms as may appear to the Court to be just, order that the name
of any party improperly joined, whether as Plaintiff or Defendant, be struck out, and that
the name, of any person who ought to have been joined, whether as Plaintiff or
Defendant, or whose presence before the Court may be necessary in order to enable the
Court effectually and completely to adjudicate upon and settle all the questions involved
in the suit, be added.

THE APPELLANT WOULD LIKE TO HUMBLY SUBMIT THAT THIS SPECIAL

LEAVE FOR APPEAL IS MAINTAINABLE.

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STATEMENT OF FACTS

The Republic of Sindhu Desh is the second most populated country which is democratic and
federal in nature. The Constitution of Sindhu Desh provides for separation of powers between its
three organs and federal sharing of power between the republic and its states. The Republic of
Sindhu Desh is a developing country with a population of over 1 billion people, and according to
the Sindhu Desh 2020 Population Census, the country's literacy rate has increased by about 9.2
percent. It increased by more than 9% over the previous ten years, rising to 74.04 percent in 2020
from 65.38 percent in 2011. The country also experiences a significant gender gap in literacy
rates, with men's rates at 82.14 percent and women's rates at 65.46 percent.Igor and Laila, both
adults, are engineers working in leading software companies in Vitosha, the capital of the State
of Karunadu. They get married on August 10, 2021. The following night after their wedding Igor
expressed his desire to consummate the marriage to Laila who then said that she needs time to
get comfortable around Igor and it would happen in due course of time. On October 14, 2021,
Igor and Laila go out for a party along with friends to celebrate a friend‘s birthday party and
intoxicate themselves. On returning home, Igor expressed his desire to Laila now that they had
been living together for nearly 2 months, they should consummate the marriage and Laila in her
intoxicated state was unable to communicate properly and went to sleep. When Laila awakened
from sleep the following morning, she discovered her clothes in a disorganised state and
assumed that Igor had sexual contact with her the night before. Laila, feeling traumatized,
violated, and contempt for Igor's actions, filed a police complaint with the local Women's Police
Station at Vitosha, and on October 2, an FIR under Sections 350, 351, 354, 375, and 376 of the
SDPC was evaluated by a doctor at the Government Hospital in Vitosha who expressed his
opinion on the incidence of "vaginal penetration, genital injury, and discovering traces of semen
on her clothes" as part of the police investigation that followed the filing of the FIR. The District
Magistrate altered the charges and removed Sec 375 and 376 of the SDPC as the law of the state
does not recognise marital rape as an offence. An aggrieved Laila filed a Writ petition in the
High Court of Karunadu challenging the vires of Exception 2 of Sec. 375 of SDPC under Art. 14,
19 and 21. The Division Bench held that Exception 2 of Sec. 375 is ultravires and directed the
state to make laws relating to ‗rape‘ gender-neutral. The Republic of Sindhu Desh filed a SLP
against the judgment of High Court as criminalization of marital rape would lead to ―excessive
interference with the institution of marriage‖. The ‗KHHA‘ has filed several representations with
the Govt. of Karunadu and PMO that the High Court judgement would open a pandoras box by
making husbands at risk of potential misuse similar to Section 498A of the Penal Code and were
welcoming to the idea of making rape gender-neutral. Shrutalaya was alarmed by the direction
by High Court of making rape gender-neutral. KHHA and Shrutalaya have both filed impleading
applications before the Supreme Court and which applications have been accepted by the Court
recognising the importance of the case.

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ISSUES RAISED

The Questions presented by this Hon‘ble Court are as follows: -

ISSUE 1

Whether the Special Leave Petition filed under Article 136 of the Constitution of Sindhu Desh is
proper and/or valid since the State is under an obligation to treat men and women equally?

ISSUE 2

(i) Whether Explanation 2 of Section 375 of the Sindhu Desh Penal Code is violative of
Articles 14, 19, and 21 of the Constitution?

(ii) Whether forceful intercourse by a man with his wife against her will and/or without
her consent can be criminalized as constituting ‗Rape‘ under provisions of Section
375 of the Penal Code?

ISSUE 3

Whether the offence of Rape under Section 375 of the Sindhu Desh Penal Code is required to be
made gender-neutral?

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SUMMARY OF ARGUMENTS

ISSUE 1

Whether the Special Leave Petition filed under Article 136 of the Constitution of Sindhu Desh is
proper and/or valid since the State is under an obligation to treat men and women equally?

It is humbly submitted that the Special Leave Petition against the judgement of Hon‘ble
High Court is maintainable under Article 136 of the Constitution of India. Article 136
empowers the Supreme Court to grant in discretion Special leave to Appeal from any
judgement, decree, determination, sentence or order in any cause or matter passed or
made by any court or tribunal in the territory of India. Therefore,the appellant has locus
standi to approach the Hon‘ble SC in the present case.

ISSUE 2

Whether Exception 2 of Section 375 of the Sindhu Desh Penal Code is violative of Articles 14,
19, and 21 of the Constitution?

It is most humbly submitted that the Exception 2 of Section 375 of the Sindhu Desh Penal
Code is not violative of Articles 14, 19, and 21 of the Constitution as the classification
was made on the basis of intelligible differentia with a rational nexus.

Whether forceful intercourse by a man with his wife against her will and/or without her consent
can be criminalized as constituting ‗Rape‘ under provisions of Section 375 of the Penal Code?

It is most humbly submitted that forceful intercourse by a man with his wife against her
will and/or without her consent can be criminalized as constituting ‗Rape‘ under
provisions of Section 375 of the Penal Code as the court does not have the authority to
create a new offence and criminalising marital rape would lead to its misuse and would
be a burden on the judiciary.

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ISSUE 3

Whether the offence of Rape under Section 375 of the Sindhu Desh Penal Code is required to
be made gender neutral?

It is most humbly submitted that making rape laws gender neutral by the court would
amount to creation of a new offence and the rape laws in the country are
made gender specific to keep a check on the sexual offences against women and the
perpetrators of such offences are predominantly men and the victims predominantly
are women.

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ARGUMENTS ADVANCED

ISSUE 1

1. Whether the Special Leave Petition filed under Article 136 of the Constitution of Sindhu
Desh is proper and/or valid since the State is under an obligation to treat men and women
equally?

It is humbly submitted that the Special Leave Petition against the judgement of Hon‘ble
High Court is maintainable under Article 136 of the Constitution of India. Article 136
empowers the Supreme Court to grant in discretion Special leave to Appeal from any
judgement, decree, determination, sentence or order in any cause or matter passed or
made by any court or tribunal in the territory of India. Therefore, the appellant has locus
standi to approach the Hon‘ble SC in the present case.

1.1. That Article 136 of the Constitution is couched in the widest phraseology.

1.1.1. It is humbly submitted that powers under Article 136 can be exercised against any kind of
judgement or order which is causing injustice to any party, and to serve the need, the
power under Article 136 is unfettered.

1.1.2. This Court's jurisdiction is limited only by its discretion. Article 136 is very broad-based &
confers discretion on the court to hear ―in any cause or matter‖. The plenitude of power
under Article 136 of the Constitution has been authoritatively stated by the Constitution
Bench in Durga Shankar Mehta v. Thakur Raghuraj Singh and Ors1 the exercise of the
said power by the Court cannot be curtailed by the original constitutional provision or by
any statutory provision2.

1.1.3. Arguendo, if it is assumed the Petition is not maintainable, this Hon‘ble Court can still
hear the matter. For the purposes of arguments, if it assumed that the current petition is
1
1954 AIR 520, 1955 SCR 287.
2
State of Karnataka v. State of Tamil Nadu and Ors., Civil Appeal No. 2453 of 2007 decided on December 9, 2016.

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not maintainable, it is humbly submitted that the width of the discretion of this Hon‘ble
Court may extend to a situation where although the appeals are found not to be
maintainable, yet, the Supreme Court may decide on the merit of the appeals3.

1.2. The Matter Involves Question Of Law Of General Public Importance And Hence,
Entitled To Be Maintainable.

1.2.1. The jurisdiction conferred under Art. 136 on the SC are corrective one and not restrictive
one4. A duty is enjoined upon the SC to exercise its power by setting right the illegality in
the judgements is well-settled that illegality must not be allowed to be perpetrated and
failure by the SC to interfere with the same would amount to allowing the illegality to be
perpetuated. It has been held in plethora of cases that when the question of law of general
public importance arises, the jurisdiction of SC can be invoked by filing special leave
petition.

1.2.2. It has been held by this Hon‘ble Court that when a question of law of general public
importance arises, or a decision shocks the conscience of the court, its jurisdiction can
always be invoked. Article 136 is the residuary power of SC to do justice where the court
is satisfied that there is injustice5. The principle is that this court would never do injustice
nor allow injustice being perpetrated for the sake of upholding technicalities.

1.2.3. The expression "substantial question of law" is not defined in any legislation.
Nevertheless, it has acquired a definite connotation through various judicial
pronouncements. A Constitution Bench of the Apex Court, while explaining the import of
the said expression, observed that:

―The proper test for determining whether a question of law raised in the
case is substantial would, in our opinion, be whether it is of general public
importance or whether it directly and substantially affects the rights of the
parties and if so whether it is either an open question in the sense that it is
not finally settled by this Court or by the Privy Council or by the Federal

3
Villianur Iyarkkai Padukappu Maiyam v. Union of India, (2009) 7 SCC 561.
4
Haryana State Industrial Corporation. v. Cork Mfg. Co. (2007) 8 SCC 359.
5
C.C.E v. Standard Motor Products, AIR1989 SC 1298.

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Court or is not free from difficulty or calls for discussion of alternative

views.6”

The Supreme Court has exercised its Jurisdiction under Article 136 under the
following circumstances-

(i) When the Tribunal/ Court ostensibly fails to exercise its patent jurisdiction.7

(ii) When there is an apparent error on the face of the decision.

(iii) The tribunal/ court has erroneously applied well-accepted principles of jurisprudence.

The tribunal acts against the principles of Natural Justice, or has approached the question
in a manner likely to cause injustice.

1.2.4. In the present case, the issue involves matters of General Public Importance and
substantial question of law, as the judge in High Court of Karunadu arbitrarily acted
beyond its jurisdiction by creating a new offence and that the SLP is valid
because State isn‘t under a complete obligation to treat men and women equally as
there exists a intelligible differentia with a proper rational nexus in the matters related to
sexual acts committed on either gender.

6
Sir Chunilal Mehta and Sons. Ltd. v. Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314.
7
Chief Administrator cum Jt. Secretary, Government of India v. D. C. Dass, AIR 1999 SC 186.

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ISSUE 2

(i) Whether Exception 2 of Section 375 of the Sindhu Desh Penal Code is violative of Articles
14, 19, and 21 of the Constitution?

It is most humbly submitted that the Exception 2 of Section 375 of the Sindhu Desh Penal Code is
not violative of Articles 14, 19, and 21 of the Constitution as the classification was made on the
basis of intelligible differentia with a rational nexus.

2.1. That the Article 14 of the Constitution is not violated.

2.1.1. In the Landmark Judgement, Ramkrishna Dalmia v. Justice S.R. Tendolkar8, the
Supreme Court of India describes and defines the jurisprudence of equality before law
under Article 14 of Indian Constitution. The very popular "classification test" was given
while delivering the judgement in this case. In simple words it means that this principle
allows the states to make differential classification of subjects provided that such a
classification is made on the basis of intelligible differentia (which in simple words
mean that objects within the class are clearly distinguishable from those objects which
are outside such class) and there must be a presence of rational nexus with the objective
which is sought to be achieved by such classification. The Court held this while
determining if the statute is valid or is in violation of Article 14. The Court also held
that the onus of proof that any law is violative of the Constitution lies upon one who
asserts that. And a general presumption has to be made that any law passed by the
legislature was made in good faith as well as knowledge of existing circumstances.

2.1.2. Applying the ―intelligible differentia‖ test, the impugned Exception would, therefore,
infract Article 14 only if the relationship of marriage, between the man and woman
involved in the act, does not provide any intelligible differentia having a rational nexus
to the object sought to be achieved by the impugned Exception.

8
AIR 1958 SC 538.

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2.1.3. Article 14 Landmark Judgement, E.P. Royappa v. State of Tamil Nadu9 was one of the
earliest cases which provided a test for Article 14. The test which was introduced in this
case was referred to as the "new doctrine" or "the arbitrariness test" and was pronounced
in the judgement by Justice Bhagwati. The court in its judgement held that there was
absence of any ground for a conclusion to be reached that the government had bad faith
or improper motive against the petitioner. The test which was introduced states that the
equality guaranteed under article 14 includes a guarantee against arbitrariness against
any state action. This test was later entertained by various courts including the supreme
court. And the principle laid down in this judgement have helped in guiding a number of
cases against state actions as a proper test was now in place to test whether the state
action is violative of fundamental right of equality which is guaranteed under article 14
of the Indian Constitution or not.

2.1.4. The manner in which the considerations of arbitrariness and invidious discrimination,
vis-à-vis Article 14 of the Constitution, dovetail into one another, is well explained in
the following passage from the well-known decision of the Supreme Court in R.K. Garg
v. U.O.I10. : -

―Classification can be made for the purpose of legislation but lay down that:

1. The classification must not be arbitrary but must be rational, that is to say, it must not
only be based on some qualities or characteristics which are to be found in all the 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. In order to pass the test,
two conditions must be fulfilled, namely,

(1) That the classification must be founded on an intelligible differentia which distinguishes
those that are grouped together from others and

(2) That differentia must have a rational relation to the object sought to be achieved by the
Act.

9
AIR 1974 SC 555,1974 SCR (2) 348.
10
1982 133 ITR 239 SC, (1981) 4 SCC 675, 1981 1 SCR 947, 1982 (14) UJ 12 SC.

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2. The differentia which is the basis of the classification and the object of the Act are distinct
things and what is necessary is that there must be a nexus between them. In short, while
Article 14 forbids class discrimination by conferring privileges or imposing liabilities
upon persons arbitrarily selected out of a large number of other persons similarly situated
in relation to the privileges sought to be conferred or the liabilities proposed to be
imposed, it does not forbid classification for the purpose of legislation, provided such
classification is not arbitrary in the sense above mentioned.‖ It is clear that Article 14 does
not forbid reasonable classification of persons, objects and transactions by the legislature
for the purpose of attaining specific ends.

2.1.5. What is necessary in order to pass the test of permissible classification under Article 14
is that the classification must not be ―arbitrary, artificial or evasive‖ but must be based
on some real and substantial distinction bearing a just and reasonable relation to the
object sought to be achieved by the legislature. The question to which we must therefore
address ourselves is whether the classification made by the Act in the present case
satisfies the aforesaid test or it is arbitrary and irrational and hence violative of the equal
protection clause in Article 14.‖

2.1.6. Every offence has, essentially, four indicia; the perpetrator, the victim, the act and the
punishment. The four, together, assimilate into what a statute regards as a particular
offence. It is not possible to vivisect the offence, as a statutory conception of the
legislature, and start viewing these four indicia as individual components, unrelated to
each other. An ―act‖ cannot be divorced from its actor. offences are not committed by
insubstantial phantasms.

2.1.7. We may assume, arguendo, that a man does have sexual intercourse with his wife
without her consent, it would be too harsh to consider the act committed by him as
―rape‖ under Section 375 and punishable under Section 376, given the unquestionable
qualitative distinction which exists between sexual relations in a marriage, vis-à-vis
sexual relations between strangers, the legislature has, in its wisdom, decided to treat
non-consensual sex by a man with a woman, where the woman is a stranger, as rape,
and non-consensual sex by a husband with his wife, as not rape.

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2.1.8. When viewed from the point of view of the perpetrator, who is, after all, the statutory
offender, and who has to suffer the punishment prescribed for the act, the legitimate
expectation of sex, that the husband has, is a factor which may legitimately be regarded
as mitigating the culpability, as the perpetrator of the act of non-consensual sex, vis-à-
vis a stranger who has no such legitimate expectation, much less a right. There is,
therefore, an intelligible differentia in the two cases. An act of non-consensual sex, as
committed by a complete stranger, cannot, therefore, be equated with an act of non-
consensual sex by a husband.

2.1.9. From the point of view of the victim, too, there is, therefore, an intelligible differentia.
The extent of outrage felt by the wife, in the two cases, is also distinct and different. It
would be artificial to assume that the degree of outrage felt by a wife who is compelled
to have sex on a particular occasion with her husband, despite her unwillingness, is the
same as the degree of outrage felt by a woman who is ravaged by a stranger against her
will.

2.1.10. One of the most significant distinctions between the two situations is that, in the case of
an act of non-consensual sex between a husband and wife, there is no societal
ramification whatsoever, unlike in the case of a woman raped by a stranger, as the act
takes place within the privacy of the marital bedroom and, more empirically, because
the man and the woman are married.

2.1.11. The impugned Exception chooses to treat sex, and sexual acts, within a surviving and
subsisting marriage differently from sex and sexual acts between a man and woman
who are unmarried. It extends this distinction to holding that, within marital sexual
relations, no ―rape‖, as statutorily envisioned by Section 375, can be said to occur. Thus
treating sexual acts between a husband and wife, whether consensual or non-consensual,
differently from non-consensual sexual acts between a man and woman not bound to
each other by marriage, the legislature cannot be said to have acted unconstitutionally.

2.1.12. The distinction is founded on an intelligible differentia having a rational nexus to the
object sought to be achieved by the impugned Exception, which fulfils not only a legal

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but also a laudatory object, and does not compromise any fundamental rights guaranteed
by Part III of the Constitution.

2.2. That it is not violative of article 19 and 21 of the Constitution.

2.2.1. If the intention or the proximate effect and operation of the Act was such as to bring it
within the mischief of Article 19(1)(a), it would certainly be liable to be struck down.
The real difficulty, however, is that neither the intention nor the effect and operation of
the impugned Act is to take away or abridge the right of freedom of speech and
expression enjoyed. Here we find the germ of the doctrine of direct and inevitable
effect, which necessarily must be an effect intended by the legislature, or in other
words, what may conveniently and appropriately be described as the doctrine of
intended and real effect.

2.2.2. In Dwarkadas Shrinivas v. Sholapur Spinning & Weaving Co. Ltd11 pointed out that ―it is
the substance and the practical result of the act of the State that should be considered
rather than its purely legal aspect‖ and ―the correct approach in such cases should be to
enquire as to what in substance is the loss or injury caused to the citizen and not merely
what manner and method has been adopted by the State in placing the restriction‖.

2.2.3. It is not, therefore, every perceived consequence, or effect, which would be of relevance
while examining the constitutionality of a statutory provision. The Court is required to
take into consideration only those effects which are direct, inevitable, and within the
contemplation of the legislature when the provision was enacted.

2.2.4. Viewed thus, it can be said that the effect of the impugned Exception is to nullify,
abrogate, or even compromise the right of the wife to refuse consent to sex. Inherent in
the object of Section 375, is the ―foregrounding‖ of the entire law of consent. Arguendo,
assuming this to be the position, the impugned Exception, in its direct and inevitable
effect, does not compromise the right of the wife to consent, or refuse consent, to sexual
relations with her husband. The impugned Exception does not state, either expressly or

11
1954 AIR 119, 1954 SCR 674.

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by necessary implication, that the wife is disentitled from prosecuting her husband for
the act of rape, for the simple reason that it states that the act itself would not be rape.

2.2.5. Plainly read, it is clear that there is nothing in the impugned Exception which obligates a
wife to consent to having sex with her husband, wherever he so requests. All that it says
is that sexual acts by a husband with his wife are not rape. It does not even obliquely
refer to consent, or want of consent.

2.2.7. The mere fact that, if the wife, on a particular occasion, were not to grant consent for sex
with her husband, and if, nonetheless, the husband were to compel her to have sex, the
act committed by him would not qualify as ‗rape‘ within the meaning of Section 375
cannot be regarded as disregarding, altogether, the wife‘s right to grant, or refuse,
consent. It does not follow as a direct and inevitable effect of the operation of the
impugned Exception.

2.2.8. Unjustified denial of sex by either spouse, within a marital relationship is, ―cruelty‖,
entitling the other spouse to seek divorce on that ground. A Division Bench of this
Court has, in a recent decision in Rishu Aggarwal v. Mohit Goyal12, held that it
tantamount to ―matrimonial misconduct‖ and, equally, may ―certainly constitute
‗hardship‘‖ to the spouse to whom sex has been denied. The existence of an in praesenti
and continuing obligation, of either spouse, to provide reasonable sexual access to the
other. The existence, in each spouse, of a legitimate conjugal expectation of meaningful
sexual relations with the other is also acknowledged and admitted.

2.2.9. The impugned Exception does not, directly or indirectly, affect the woman‘s right to
refuse participation in sexual activity. There is no fundamental right, either in Article 21
or in any other article of the Constitution, to a woman to prosecute a man, who has sex
with her without her consent, for rape. Such a right does exist, if the act falls within
Section 375, and is not covered by either of the Exceptions thereto. There is no right,
relatable to any of the provisions of Part III of the Constitution, in the woman to

12
MAT.APP. (F.C.) 110/2021 & CM APPL. 41458/2021.

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prosecute the man for rape even if the man happens to be her husband and, therefore, is
entitled to the protection of the impugned Exception.

2.2.10. A woman who is way laid by a stranger, and suffers sexual assault – even if it were to
fall short of actual rape – sustains much more physical, emotional and psychological
trauma than a wife who has, on one, or even more than one, occasion, to have sex with
her husband despite her unwillingness. It would be grossly unrealistic to treat these two
situations as even remotely proximate. Acts which, when committed by strangers, result
in far greater damage and trauma, cannot reasonably be regarded as having the same
effect, when committed by one‘s spouse, especially in the case of a subsisting and
surviving marriage.

2.2.11. There is no inherent fundamental right, in the wife, to have her husband convicted for
rape, relatable to Article 21, Article 19, or to any other Article in the Constitution. The
impugned Exception does not treat the offence as condonable; it merely disapproves the
use of the ―rape‖ vocabulary in the context of marital sexual relations. The wife, if
aggrieved, has her remedies, criminally, under Sections 304B, 306, 377 and 498A of the
IPC and Section 3 of the Dowry Prohibition Act.

Thus it is most humbly submitted that the impugned exception does not violate any of the
fundamental rights guaranteed by the Constitution.

(ii) Whether forceful intercourse by a man with his wife against her will and/or without her
consent can be criminalized as constituting ‗Rape‘ under provisions of Section 375 of the
Penal Code?

It is most humbly submitted that forceful intercourse by a man with his wife against her will
and/or without her consent can be criminalized as constituting ‗Rape‘ under provisions of Section
375 of the Penal Code as the court does not have the authority to create a new offence and
criminalising marital rape would lead to its misuse and would be a burden on the judiciary.

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3.1. That the court does not have the authority to Create a new Offence

3.1.1. Arguendo, even if it were to be assumed that the impugned Exception does infract any
right guaranteed to wives by Part III of the Constitution, the Court would, nonetheless,
not be in a position to strike down the impugned Exception, as doing so would result in
creation of an offence.

3.1.2. Judges sitting in courts cannot, on the basis of arguments of Counsel, howsoever
persuasive, create offences, or pass judgements which would result in an act, otherwise
not an offence, being rendered an offence. The effect of designating an act as a criminal
offence, on all who may commit that act, cannot be forgotten.

3.1.3. Another reason why the Court cannot create an offence, is because a Court cannot
legislatively stipulate the punishment for the offence. In the present case, for example,
there is no stipulated punishment for an act of non-consensual sex, by a husband with
his wife, as it is does not amount to ‗rape‘ and, consequently, Section 376 would not
apply to it. If the impugned Exception was to be struck down, we would make, ipso
facto, the punishments envisaged by Section 376, applicable to such a husband, where
the legislature never intended these punishments to apply to him. We, therefore, would
be doing something which was never within the contemplation of the legislature, which
may be even worse, jurisprudentially, than judicial legislation itself. If the Court is not
empowered to prescribe punishments, equally, the Court cannot, by its order, convert an
act which, prior thereto, was not an offence, into an offence13.

3.1.4. In re. Natural Resources Allocation and State of M.P. v. Rakesh Kohli14 the Supreme
Court holds that the law may not be struck down merely on the ground that it is
arbitrary; it is also necessary to establish that it is constitutionally infirm. Else, the
concept of ―arbitrariness‖ may lead to a perplexing degree of subjectivity. What may
appear to be arbitrary to one may not appear arbitrary to another – the present case
being a stellar example

13
Khushboo Saifi v. Union Of India And Anr,W.P.(C)No. 5858/2017 & CM No. 35853/2021
14
(2012) 6 SCC 312.

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3.1.5. Aravali Golf Club v. Chander Hass15 are amply evocative of the legal position:

―Before parting with this case we would like to make some observations about the limits
of the powers of the judiciary. We are compelled to make these observations because
we are repeatedly coming across cases where judges are unjustifiably trying to perform
executive or legislative functions. In our opinion this is clearly unconstitutional. In the
name of judicial activism judges cannot cross their limits and try to take over functions
which belong to another organ of the State. Judges must exercise judicial restraint and
must not encroach into the executive or legislative domain‖

3.1.6. It is sanctified, in law, that public interest trump's private interest. Given the nature of the
marital institution in our socio-legal milieu, if the legislature is of the view that, for
preservation of the marital institution, the impugned Exception should be retained, the
Court would not be in a position to strike down the Exception unless it were to hold, per
contra, that the view of the legislature is incorrect. That would amount to substituting
our value judgement for the value judgement of the legislature, which, in a democracy,
is unquestionably entitled to precedential preference, as the voice of the legislature is,
classically and constitutionally, the voice of the people.

3.1.7. Assuming for the sake of argument that the legal framework which criminalises spousal
sexual violence is inadequate, that by itself cannot be the reason to declare the
impugned provisions unconstitutional. The gaps in the law which arise on account of
inadequacy cannot be remedied by the judiciary since these aspects fall within the
exclusive domain of the legislature.

3.1.8. There exists a distinction between the etymological and the legal. To urge that rape, per
definition, is non- consensual sex by a man with a woman, is just as simplistic as the
contention that murder, per definition, is the taking of the life of one man by another.
Just as every incident of taking of the life by one, of another, is not murder, every
incident of non-consensual sex of a man with a woman is not rape. A castle cannot be
built on reeds. The question of whether the unique demographics of marriage, which
unquestionably extend to the sexual sphere as well, would, or would not, justify a
15
Civil Appeal No. 5732 of 2007 (Arising out of S.L.P(C) No. 3358 of 2007);

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differential treatment being extended to sexual acts within marriage, even if non-
consensual, was not, debated with the seriousness it deserves. Even within the definition
of rape, if the act is committed in one of the circumstances envisaged by Section 376(2),
it is treated as ―aggravated‖ rape, entailing a higher punitive sentence.

3.2. Misuse of Law

3.2.1. The statistics cited to argue against the criminalisation of marital rape are those of the
misuse of 498A, the law that relates to dowry cases. In case MRE is struck down, it is
likely to be misused as has happened in respect of cases lodged under Section 498A of
the IPC.

3.2.2. A total of 111,549 cases were registered under 498A in 2020. Of these, 5,520 were
closed by Police citing as false and overall 16151 cases were closed by police either
because they were false or there was a mistake of fact or law or it was a civil dispute
etc. That is 14.4% of cases were closed by police for not finding merit in the case.
96,497 men, 23,809 women were arrested under 498A last year making total arrests
under this section 120,306. 18,967 cases were tried in courts of which 14,340 led to
acquittal and 3,425 led to a conviction. 498A cases pending trial at the end of 2020 are
651,404 with a pendency percentage of 96.2%.

3.2.3. There are several cases where the husbands have even committed suicide after being
accused in 498A cases where they have said that it was only after the relationship went
south when false allegations were hurled, leading to the judicial harassment of the
family. The argument is that if marital rape is criminalised, it would be another law that
disgruntled wives can use falsely. While this does not dismiss the fact that marital rape
does happen and there are real victims out there, the argument is that this law would be
used against innocent men far more than being used to get justice for real victims.

3.2.4. It has merely stated that spousal sexual violence cannot be punished as ―rape‖ under
Section 376 of the IPC. Other remedies have been provided to deal with such situations,
including Section 3 of the DV Act. The sufficiency of such other remedies, as a panacea
to spousal sexual violence, is not judicially reviewable, and Exception 2 to Section 375

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cannot be struck down on the ground that the remedies otherwise available to deal with
cases of spousal sexual violence are insufficient.

3.3. Burden of proof

3.3.1. The burden of proof is a hugely complex issue that has prevented marital rape to be
criminalised. In the case of marital rape, one has to consider that intercourse is a part of
any marriage. If marital rape itself is criminalised, the question remains who would the
burden of proof be on and what would that burden be. For example, if the burden is on
the woman, then the argument remains that mere allegations, like in the case of dowry
violence, can ruin the lives of not just the husband but the entire family. If the burden of
proof is on the husband, then the fact remains that the husband would have to prove a
negative, which is in itself, a problematic concept.

3.3.2. Once a woman alleges that she has been raped in a marriage, there would hardly be any
evidence, like CCTV footage etc, to prove that the woman has or has not been raped and
therefore, the burden of proof would be a difficult concept to apply in these cases.

3.3. The breakdown of the institution of marriage

3.3.1. In a 2010 paper (‗Rape Within Marriage in India: Revisited‘), Prof (Dr) K I Vibhute
observed that the ―preservation of the institution of the family‖ is what mainly allows
the provision to gain legitimacy. ―… the preservation of the family institution by ruling
out the possibility of false, fabricated and motivated complaints of ‗rape‘ by ‗wife‘
against her ‗husband‘ and the pragmatic procedural difficulties that might arise in such a
legal proceeding‖.

3.3.2. Therefore, criminalising marital rape would lead to the breakdown of the institution of
marriage with wives falsely accusing husbands. The argument also extends to both
parties in a relationship trying to be ―legally careful‖ in the normal course of marriage
should such allegations come up.

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3.3.3. In our country, marital vows are still regarded as inviolable, and marital fidelity is,
fortunately, still the norm, profligacy being the exception (even if adultery is no longer a
criminal offence). The sexual aspect is but one of the many facets of the relationship
between husband and wife, on which the bedrock of their marriage rests. Care,
consideration, and an understanding of one another's likes and dislikes, hopes and
aspirations, are fundamental to the sustenance of a marriage that is to abide. There can
be no comparison, whatsoever, between the relationship between a husband and a wife,
with any other relationship between man and woman. It is for this reason that there is an
enforceable legal right.

3.3.4. Married couples who choose to marry are fully cognizant of the legal obligation which
arises by the operation of law on solemnization of the marriage and the rights and duties
they owe to their children and the family as a whole, unlike the case of persons entering
into live-in relationship. This Court in Pinakin Mahipatray Rawal v. State of
Gujarat16 held that marital relationship means the legally protected marital interest of
one spouse to another which include marital obligation to another like companionship,
living under the same roof, sexual relation and the exclusive enjoyment of them, to have
children, their upbringing, services in the home, support, affection, love, liking and so.

3.3.6. In Arvind Mohan Sinha v. Amulya Kumar Biswas & Ors17. It was held that an individual
is subjected to punishment for committing a crime as it impacts the society at large
which needs to be protected from the pernicious effect of such crime. Thus, the
legislative policy of not punishing an offence committed by a husband upon his wife
which otherwise would fall within the purview of Section 375 is taken out of its realm
by Exception 2 appended to the said section only to protect the society i.e., the
institution of marriage. That marriage is a social institution that has social, economic,
cultural and religious ramifications, has been accepted by courts. Same punishments
cannot be provided for dissimilar situations/acts.

16
(2013) 10 SCC 48.
17
(1974) 4 SCC 222.

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3.4. Societal Acceptance

3.4.1. These social conundrums play an important role in deciding the criminalisation of marital
rape. According to the World Bank report on India‘s poverty profile, 270 million
Indians are poor, that means 22% of the whole population is under the National Poverty
line. 80% of India‘s poor live in rural areas. Whereas the Literacy rate is concerned it‘s
74.04%. It creates an impression that still there are volumes of people who need to get
alleviated from the downgrades. People need to understand the functioning of law, and
for that they have to be educated enough. Peoples, who have not been exposed to
education, will not have an iota of idea, so as to what constitute Marital Rape and may
easily fall in some trap, rising from vendetta. Henceforth before criminalising Marital
Rape, these two factors should be taken into consideration and hence discussed

3.5. Pliability of Marriage in Accepting Marital Rape as Offence:

3.5.1. Marriage is a social institution which in India is regulated by personal laws of different
religions. The most important encumbrance in the way of criminalisation would be
―procreation‘ which is the aim of all marriages as an institution, to contribute to human
development. The question is Procreation is fundamental to all the marriages; let it be of
any religion, will this not get thwarted. The issue under consideration is not whether
spousal sexual violence is, or is not, to be punished as a criminal act, as Parliament has
not condoned spousal sexual violence.

3.5.2. Denial of sex by the wife, in particular circumstances also amounts to cruelty, which is a
ground for divorce. There are pernicious consequences that could result if the impugned
Exception is struck down. Cohabiting husbands would, in such a circumstance, be
worse off than separated spouses under Section 376B, as they would be liable, in the
case of conviction, to be imprisoned for 10 years, extendable to life, whereas Section
376B envisages punishment of not less than two years, extendable to seven years.
Further, the husband would be subjected to the presumptive rigour of Section 114A of
the Evidence Act, which does not apply to Section 376B. As a matter of fact, Section
376B is in the nature of an exception to Exception 2 to Section 375, setting out a
separate and distinct class.

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3.5.3. The Supreme Court, half a century ago in the celebrated decision of Dastane v.
Dastane18, observed that ―sex plays an important role in marital life and cannot be
separated from other factors which lend to matrimony a sense of fruition and
fulfilment‖.

3.5.4. It is not, therefore, every perceived consequence, or effect, which would be of relevance
while examining the constitutionality of statutory provision. The Court is required to
take into consideration only those effects which are direct, inevitable, and within the
contemplation of the legislature when the provision was enacted. Viewed thus, can it
cannot be said that the effect of the impugned Exception is to nullify, abrogate, or even
compromise the right of the wife to refuse consent to sex.

3.5.5. In Vidhya Viswanathan v. Kartik Balakrishnan19. In case MRE is struck down, it is

likely to be misused as has happened in respect of cases lodged under Section 498A of
the IPC. The importance of conjugal rights in marriage can be ascertained by having
regard to Section 9 of the HMA which concerns restitution of conjugal rights. The
remedy under this provision is available to both spouses and denial of sex by either
spouse is construed as cruelty and, thus, is available as a ground for divorce.

3.5.6. A wife cannot prescribe a particular punishment that can be imposed on the husband "to
satisfy her ego". The only difference between Section 376 of the IPC and the D.V. Act
is with regard to the quantum of punishment, although, the act of sexual abuse is an
offence under both statutes. The object and purpose of retaining MRE cannot, thus, be
said to be arbitrary or violative of Articles 14, 15 or 21 of the Constitution . It cannot be
said that if one organ, i.e., the legislature gives protection to the citizens by engraving in
the statute MRE, the other organ, which is the judiciary, can take away the protection by
striking down the exception and, thus, creating an offence. It is a settled law that what
cannot be done directly can also not be done indirectly.

18
1975 AIR 1534, 1975 SCR (3) 967.
19
(2014) 15 SCC 21.

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3.5.7. The first justification is that by virtue of getting married, the girl has consented to
sexual intercourse with her husband either expressly or by necessary implication.

3.5.8. MRE does not in any manner envisage or require a wife to submit to forced sex by the
husband and does not encourage a husband to impose himself on the wife; It is
important to note that there are remedies available to address non-consensual sex
between spouses, something which is apparent on a plain reading of Section 376B and
Section 498A of the IPC as also the provisions of the Protection of Women from
Domestic Violence Act, 2005. These are provisions that bring forth the legislative intent
to criminally prosecute a husband who refuses to respect consent.

3.5.9. The socio-legal milieu in India is different, and distinct, from that which obtains in other
jurisdictions, and there is no justification for requiring India to apply, to itself, decisions
taken in other countries.The courts in India ought not to apply western concepts. The
concept which is in vogue in western countries cannot form the basis for striking down
a statutory provision made by Parliament having regard to the needs of its people.
Therefore, one cannot plead that there has been a violation of Article 14 on the ground
that while a wife located in a western country canfile a complaint about sexual abuse,
the same remedy is not available to a wife located in India. MRE has been retained on
the statute to protect the "institution of marriage". MRE presents a case of reasonable
classification and hence cannot be struck down under Article 14 of the Constitution.

ISSUE 3

Whether the offence of Rape under Section 375 of the Sindhu Desh Penal Code is required to
be made gender neutral?

It is most humbly submitted that making rape laws gender neutral by the court would amount
to creation of a new offence and the rape laws in the country are made gender specific to keep
a check on the sexual offences against women and the perpetrators of such offences are
predominantly men and the victims predominantly are women.

4.1. Creation of a new offence

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4.1.1. Making rape laws gender neutral would add to the ingredients of the offence of rape and
the court does not have the authority to create a new offence. Creation of an offence
would amount to judicial overreach and would be ultra vires to the Doctrine of
Separation of powers as the legislature only has the authority to enact and to legislate on
matters relating to crimes of the country.

4.1.2. Aravali Golf Club v. Chander Hass20 are amply evocative of the legal position:

―Before parting with this case we would like to make some observations about the limits of the
powers of the judiciary. We are compelled to make these observations because we are
repeatedly coming across cases where judges are unjustifiably trying to perform
executive or legislative functions. In our opinion this is clearly unconstitutional. In the
name of judicial activism judges cannot cross their limits and try to take over functions
which belong to another organ of the State. Judges must exercise judicial restraint and
must not encroach into the executive or legislative domain‖

4.1.3. In re. Natural Resources Allocation and State of M.P. v. Rakesh Kohli21, the Supreme
Court holds that the law may not be struck down merely on the ground that it is
arbitrary; it is also necessary to establish that it is constitutionally infirm. Else, the
concept of ―arbitrariness‖ may lead to a perplexing degree of subjectivity. What may
appear to be arbitrary to one may not appear arbitrary to another – the present case
being a stellar example.

4.1.4. There is a need to create an ecosystem to deal with the issue at hand, such as the
provision of a "definition", "processes", "safeguards", "evidentiary standards", "forums"
amongst others; none of which the court is equipped to forge or prescribe. The court is,
thus, a sub-optimal forum for considering a variety of perspectives that are not only
legal but also social and cultural. The court by its very construct does not allow the
participation of multiple stakeholders which is why the creation of a new class of
offence is beyond its constitutional remit involving judicial review.

20
Civil Appeal No. 5732 of 2007 (Arising out of S.L.P(C) No. 3358 of 2007); vide Indian Drugs &
Pharmaceuticals Ltd. v. Workmen and S.C.Chandra v. State of Jharkhand.
21
(2012) 6 SCC 312.

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4.1.5. If the Court is not empowered to prescribe punishments, equally, the Court cannot, by its
order, convert an act which, prior thereto, was not an offence, into an offence22.

4.2. That women are predominantly the victims of sexual offences.

4.2.1. In India Rape is fourth most common crime against women in India. According to the
2019 annual report of the National Crime Records Bureau (NCRB), 32,033 rape cases
were registered across the country, or an average of 88 cases daily.
India‘s rape-related crime rate rose 70.7% over the last two decades from 11.6 per
1,00,000 women and girls in 2001 to 19.8 in 2018, according to a report by Public
Health Foundation of India.
4.2.2. The study, based on annual reports of the National Crime Records Bureau, said a
majority of such crimes were reported between 2012 and 2018. In all, 15,97,466 rape-
related cases were recorded in the country between 2001 and 2018 by the National
Crime Records Bureau.
The number of cases rose from 59,945 in 2001 to 1,33,836 in 2018 — an increase of
70.7 per cent in the rate of all rape-related crimes between the two study years.
The latest NCRB report further reveals how a woman is raped every 16 minutes in
India. The 2019 report also says that a woman becomes a victim of acid attack almost
every two days, while a woman is gang-raped and murdered every 30 hours in India. A
woman faces a rape attempt every two hours. The case of assault with intent to outrage
a woman‘s modesty is reported every six minutes.
4.2.3. Crimes against women have been steadily rising over the years. According to the latest
NCRB report, 2019 saw over 4 lakh reported cases of crimes committed against women,
up from 3.78 lakh in 2018 and 3.59 lakh cases in 2017.

4.3. That the state can make special provisions for women and children

4.3.1. Article 15 in The Constitution Of India states as follows: -

15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
22
Khushboo Saifi v. The Union Of India, W.P.(C)No. 5858/2017 & CM No. 35853/2021.

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(3) Nothing in this article shall prevent the State from making any special provision for
women and children.

Article 15(3) of the Constitution provides for making special provisions in law for women and
children. There is no gender neutrality there. That is how the amendment to rape laws
too should be viewed. That is the intention behind it. That is because victims need
protection. This is not an area which can be generalised or made gender neutral.

4.3.2. The fear around neutrality was, and continues to be, that making perpetrators gender-
neutral would open up ways for counter-cases against survivors who speak up, and goes
against statistics showing how men are overwhelmingly perpetrators of sexual assault
against all minoritized genders and sexualities. Further, globally offences like sexual
harassment along with other offences like voyeurism or stalking are predominantly
perpetrated by a man on a woman. These sections have been enacted to protect and keep
a check on the rising levels of sexual offences against women in India.
4.3.3. Any act of the description covered under Section 377 IPC done between two individuals
without the consent of any one of them would invite penal liability under Section 377
IPC. As far as sec 377 goes only the consensual sexual intercourse between the same
gender was decriminalised. A person can still approach the court under Section 377 for
rape if consent wasnt expressly or implicitly given by him/her.

4.3.4. It has been argued that it is physically/ biologically impossible for women to rape
men. Professionals and a few researchers have argued that women cannot exactly
rape men due to the fact that men need to be aroused before they are ready for sexual
intercourse. Thus, if at all a woman forces herself on a man he would be disoriented
enough and won‘t be able to non-consensually perform the act of intercourse.

4.3.5. In Priya Patel v. State of MP23, the Apex Court considered the question of whether a
group of female perpetrators can gang rape another woman. Section 376(2)(g) of IPC
utilises the term ‗whoever‘ [gang rape]. Technically whenever a gang rape takes place
the act of penetration may not be committed by each member; any act done in

23
(2006) 6 SCC 263

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furtherance of the common intention deems each participant to have committed gang
rape. The Court still held that it is impossible for a female to rape another female or
even have the intention to rape.

4.3.6. The social reality of the country isn‘t reflected. Even if it is accepted that it isn‘t
impossible for a woman to rape a man even if biological impossibilities are stated. No,
as such cases have ever propped up before the public eye. Lack of empirical evidence
proves that gender-neutral laws cannot be implemented just yet unless actual cases
come up.

Thus, it is most humbly submitted that making rape laws gender neutral would lead to creation of a
new offence by the court and the rape laws in the country are gender specific to ensure the safety of
women in the country and to ensure that women aren‘t in a position of vulnerability if rape laws are
made gender neutral as false cases could be filed against them.

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PRAYER

WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED,

REASONS GIVEN AND AUTHORITIES CITED, THIS COURT MAY GRACIOUSLY BE
PLEASED TO:

 ALLOW THE SPECIAL LEAVE PETITION FILED BY THE APPELLANT.

 SET ASIDE THE JUDGEMENT BY THE HIGH COURT OF KARUNADU AND
QUASH THE SAME.

AND ANY OTHER RELIEF THAT THIS COURT MAY BE PLEASED TO GRANT IN THE
INTERESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE.

IN THE INTEREST OF JUSTICE, EQUITY AND GOOD CONSCIENCE THE

APPELLANTS SHALL BE DUTY BOUND FOREVER TO PRAY.

COUNSELS FOR THE APPELLANT

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BIBLIOGRAPHY

1. A.S. Arora; Cruelty Against Husband; 3rd Ed.; 2020

2. P.M. Bakshi; The Constitution of India; 18th Ed. 2022.
3. H.M Seervai; Constitutional Law of India; 4th ed. ;2019.
4. Sujata V. Manohar; T.K. Tope‘s Constitutional Law of India; 3rd Ed.; 2010.
5. M L Singhal; Et. Al., Manual on The Constitution of India; 2016
6. Durga Das Basu; Constitutional Remedies and Writs; 4th ed.; 2020.
7. K.D. Gaur; Text Book on Indian Penal Code; 7th Ed.; 2020.
8. Rathan Lal & Dheeraj Lal; The Indian Penal Code; 36th Ed.; 2020.

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