8TH RGNUL NATIONAL MOOT COURT

COMPETITION,2019

BEFORE THE HON’BLE

SUPREME COURT OF INDIA

(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)

SOCIETY FOR WOMEN’S RIGHTS,NGO………….APPELLANT

V.

MR.SUBODH…………………………….………….RESPONDENT

MEMORANDUM ON BEHALF OF THE APPELLANT

-MEMORANDUM FOR THE APPELLANT-

 Memorandum for the Appellant
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-Table of contents- -Appellant-

TABLE OF CONTENTS

1. TABLE OF CONTENTS 2
2. INDEX OF ABBREVIATIONS 3-4
3. INDEX OF AUTHORITIES 5-6
4. STATEMENT OF JURISDICTION 7
5. STATEMENTS OF FACTS 8
6. QUESTIONS OF LAW 9
7. SUMMARY OF ARGUMENTS 10
8. ARGUMENTS ADVANCED 11-
[1] WHETHER THE PIL FILED BEFORE THE SUPREME COURT IS MAINTAINABLE 14
OR NOT?

[2] WHETHER EXCEPTION II OF SEC. 375 OF INDIAN PENALCODE,1860 IS

CONSTITUTIONAL OR NOT?

9. PRAYER 15

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 Memorandum for the Appellant
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INDEX OF ABBREVIATIONS

1. Sec. SECTION
2. Para. PARAGRAPH
3. & AND
4. Ads. ADVERTISEMENT
5. A.I.R ALL INDIA REPORTER
6. Annex. ANNEXURE
7. Anr. ANOTHER
8. Art. ARTICLE
9. D.V DOMESTIC VIOLENCE ACT,2005
10. CL CLAUSE
11. Cr. CRIMINAL
12. CrLJ CRIMINAL LAW JOURNAL
13. CrPc CODE OF CIVIL PROCEDURE,1973
14. CS CHARGE-SHEET
15. DW DEFENCE WITNESS
16. F.I.R FIRST INFORMATION REPORT
17. Govt. GOVERNMENT
18. HC HIGH COURT
19. SC SUPREME COURT
20. i.e THAT IS
21. IPC INDIAN PENAL CODE,1860
22. No. NUMBER
23. Ors. OTHERS
24. P. PAGE
25. PS POLICE STATION
26. PW PROSECUTION WITNESS
27. r/w READ WITH
28. SCC SUPREME COURT CASES

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 Memorandum for the Appellant
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29. SCR SUPREME COURT REPORTER

30. Supp. SUPPLEMENTARY
31. LR LAW REPORTER
32. Eds. EDITION
33. @ ALIAS
34. U/S UNDER SECTION
35. UOI UNION OF INDIA
36. V. VERSUS
37. Viz. NAMELY
38. w.r.t WITH RESPECT TO

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 Memorandum for the Appellant
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-Index of authorities- -Appellant-

INDEX OF AUTHORITIES

STATUTES

1. CODE OF CRIMINAL PROCEDURE, 1973

2. CONSTITUTION OF INDIA, 1950
3. DOMESTIC VIOLENCE ACT, 2005
4. DOWRY PROHIBITION ACT, 1961
5. HINDU MARRIAGE ACT, 1955
6. INDIAN EVIDENCE ACT, 1872
7. INDIAN PENAL CODE, 1860

BOOKS

1. DR. J.N. PANDEY, Constitution of India,53rd eds,2016

IMPORTANT DEFINITIONS

1. Appellant for the purpose of this memorandum shall stand for Rampon.
2. Respondent for the purpose of this memorandum shall stand for Province.

INDIAN CASES

1. Bodhisattwa Gautum v. Shubhra Chakraborty, A.I.R.1996 S.C.922

2. Confederation of ex- servicemen v. union of India & ors. A.I.R.1991 1182
3. Francis Coraille Muin v. Union Territory of Delhi, A.I.R.1981 S.C.746
4. Hussainara Khatoon v. State of Bihar A.I.R. 1979 1396
5. Indira Nehru Gandhi v. Raj Narain, A.I.R.1975 S.C.2299
6. K.K Kochuni vs State of Madras A.I.R. 1960 1080
7. Maneka Gandhi v. Union of India, A.I.R.1978 S.C.597
8. R.Rajgopalan v. State of Tamil Nadu, A.I.R.1994 6 S.C.C.632
9. Rubinder Singh v. Union of India, A.I.R.1983 S.C.65
10. SP Gupta v. Union of India A.I.R.1982 S.C.149
11. Subhash Kumar v. State of Bihar A.I.R 1991 S.C.420

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12. State of Maharashtra v. Madhkar Narayan,A.I.R.1991 S.C.207

13. Suchitra v. Chandigarh Administration, A.I.R.2010 S.C.235
14. The Chairman, Railway Board v. Chandrima Das, A.I.R. (2000) 2 S.C.465
15. Vishaka v. State of Rajasthan, A.I.R.1997 S.C.3011
16. Vishaka v. State of Rajasthan, A.I.R.1997 S.C.3011
17. Vishaka v. State of Rajasthan, A.I.R.1997 S.C.3011
18. West Bengal v. Anwar Ali Sarkar, A.I.R.1952 S.C.75

INTERNATIONAL CASES

1. Lindsley v. Natural Carbonic Gas220 U.S.61,(1910)

2. People v. MD (1992)-III Anr.Ct.711
3. R v. R (1992) 1 AC 599
4. SW v. UK (1996) 21 EHRR 363

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 Memorandum for the Appellant
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-Statement of Jurisdiction- -Appellant-

STATEMENT OF JURISDICTION

The Appellant humbly submits the memorandum for the petition filed before this Honourable court. The
petition invokes its writ jurisdiction under Article 32 of the Constitution of India. It sets forth the facts and
the laws on which the claims are based.

-Article 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 habeaus corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for
the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may
by law empower any other Court to exercise within the local limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court under clause (2)
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this
constitution.

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 Memorandum for the Appellant
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-Statement of facts- -Appellant-

STATEMENT OF FACTS

Nidhi and Subodh, aged 22 and 24 respectively, are two working professionals in the city of Patiala. They
have been live-in partners since 2017 and love each other. Their parents were against them marrying each
other. However, both of them managed to convince their parents that this was perfect match for them. In
December 2018, Nidhi and Subodh tied the knot as per the Hindu rituals and customs.
After their marriage, the relationship took a toll and it wasn’t the same as it had been prior to the marriage.
The primary reason according to nidhi was that Subodh had begun to be a more dominating figure. He would
now demand intercourse as if it were a matter of right rather than it being an act of two consenting adults. He
would never pay heed to the feelings of Nidhi and this was something that hurt her. When Nidhi tried to talk
about this to her mother and mother-in-law, both of them had the same view that it is the duty of an Indian
wife to fulfill the wishes of her husband and be a constant companion to him at any cost.
One day, Nidhi was watching a debate show on television on the topic of marital rape. A few of the panelists
strongly condemned Exception II to Section 375 of the Indian Penal Code, 1860. They argued that it was
based on the archaic concepts where the wife was considered as possession and property of the husband. It
was further argued that marital rape also violated human rights and various rights of women wnder Article 21
of the Constitution. They also demanded that there should not be any distinction between rape within and
outside the marriage. On the other hand, the other panelists argued that Exception II to Section 375 had been
inserted to preserve the institution of marriage and criminalization of sexual intercourse between spouses had
potential to wreak havoc on the society. Further, they argued that the Indian law delivers proper protection to
women rights and the Legislature is well aware of the situation and demands of the Indian society.
Society for Women;s Rights is an NGO that works for the development and welfare of women. It is an
organisation that has previously helped to bring in women- centric laws by rallying for classification and
enactment of women rights via legislation and judicial intervention. Deeply moved by the debate, Nidhi finally
decided to fight for her rights and what she thought was a blatant injustice against her persona. She approached
Society for Women’s Rights and narrated her grief to their activists. The members plague of marital rape.
A Public Interest Litigation was filed by the NGO before the Hon’ble Supreme Court of India with respect to
the violation of fundamental rights of married women of all ages in the form of marital rape. The PIL also
challenges the constituitonal validity of Exception II to Section 375 of the Indian Penal Code,1860.

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 Memorandum for the Appellant
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-Questions of law- -Appellant-

QUESTIONS OF LAW

[1] WHETHER THE PIL FILED BEFORE THE SUPREME COURT IS MAINTAINABLE OR NOT?
[2] WHETHER EXCEPTION II OF SEC. 375 OF INDIAN PENALCODE,1860 IS
CONSTITUTIONAL OR NOT?

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 Memorandum for the Appellant
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-Summary of Arguements- - Appellant-

SUMMARY OF ARGUMENTS

[I] WHETHER THE PIL FILED BEFORE THE SUPREME COURT IS MAINTAINABLE OR NOT?
It is humbly submitted before the Hon’ble Supreme Court that present PIL is maintainable against Mr
Subodh(respondent). It is submitted that since there has been gross violation of Article 14 and 21 of the
Constitution, the PIL is maintainable as there is contravention of fundamental rights of the appellant whose
legal rights or liabilities are affected.

[2] WHETHER EXCEPTION II OF SEC. 375 OF INDIAN PENALCODE,1860 IS

CONSTITUTIONAL OR NOT?

The PIL filed by the petitioner is maintainable and challenges the Constitutional validity of Section-375
exception-2 of Indian Penal Code, 1860. Section- 375 of IPC enumerates the provisions of rape as well as
exceptions to it. Exception 2 of sec-375 of IPC proclaims that marital rape can’t be categorize under the scope
of rape and hence cannot be considered as criminal offence, until and unless sexual intercourse done by a man
with his wife below the age of 18 years. Petitioner through this PIL want to mediate that Marital rape
constitutes all ingredients of rape except the aspect of relationship status and wants to proclaim that mere the
presence of matrimonial relationship for women of all ages, doesn’t means that females dignity don’t get hurt
or their soul doesn’t detriment. Petitioner envisage that the act of marital rape against women of all ages
infringes their fundamental rights such as the right to equality, right to non-discrimination and right to life and
personal liberty which are guaranteed to every citizen of India under Article-14 and 21 of the constitution and
hence challenges the constitutional validity of exception 2 to sec-375 of Indian Penal Code,1860.

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 Memorandum for the Appellant
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ARGUMENT ADVANCED

[I] WHETHER THE PIL FILED BEFORE THE SUPREME COURT IS MAINTAINABLE OR NOT?
The counsel on the behalf of the appellant most humbly and respectfully submits before this hon’ble court that
the PIL has been filled by the appellant under article 32 of the constitution of India. This article provides the
right to constitutional remedies which means that every person has right to move to supreme court if there is
a violation of fundamental rights. It is to be noted that supreme court cannot refuse to exercise under article
32 because it itself a fundamental right and supreme court is guarantor or defender of fundamental rights.
It has been described in the case K.K Kochuni vs State of Madras1 that Article 32 itself being a fundamental
right, the court will have to give relief despite the existence of an alternative remedy. And the right to move
to supreme court for the enforcement of fundamental rights is itself a fundamental right.
The first reported case of PIL is the case Hussainara Khatoon v. State of Bihar2 where the news item was
published in the Indian Express the PIL was filed by an advocate on the basis of highlighting the plight of
thousands of undertrial prisoners languishing in various jails in Bihar. These proceeding led to the release of
more than 40,000 undertrial prisoners. Right to speedy justice emerged as a basic fundamental right which
had been denied to these prisoners. In the case of SP Gupta v. Union of India3, it was held that PIL became
a redoubtable weapon for the enforcement of public duties where discharge in action or misconduct resulted
in public injury, and as a result any citizen of India or any social action group or consumer group or can now
approach the Supreme Court of the country seeking legal remedies in all cases where the interests of general
public or a section of public are at object.
In the case confederation of ex- servicemen v. union of India & ors.4 the petition is filed under Article 32
of the Constitution. The PIL by the Appellant- confederation of ex-serviceman Associations for an appropriate
w rit directing the Respondent- union of India to acknowledge the right of full and free Medicare of ex –
servicemen, their dependents and their families treating such right as one of the fundamental rights guaranteed
under the Constitution of India. Hence it proves that whenever such type of issue arises which can be against
public at large or can affect people residing in society either in direct or indirect way then any citizen of India
can approach to Supreme Court for the grant of remedies through PIL. In the case Subhash Kumar v. State
of Bihar5 Right to live is a fundamental right under article 21 of the constitution and it includes the right of
enjoyment of pollution- free water and air for full enjoyment of life. If anything harm or impairs the quality
of life in derogation of laws, a citizen has a right to have a recourse to article 32 of constitution of India for
removing the pollution of water or air which may be injurious to quality of life. Hence the PIL is filled for
issue of pollution which cause complication to the public at large.

1
A.I.R. 1960 1080
2
A.I.R. 1979 1396
3
A.I.R.1982 S.C.149
4
A.I.R.1991 1182
5
A.I.R 1991 S.C.420
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 Memorandum for the Appellant
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PIL is filed basically when there is an issue related to matters which can affect the public or public Interest.
In the case of Vishaka v. State of Rajasthan6 Naina kapur, a lawyer who had attended Bhanwari Devi’s
criminal trial, decided to initiate a PIL action in
the supreme court to challenge Sexual Harassment in the workplace. The Vishaka writ petition was filed in
1992 in the names of five NGOs against the State of Rajasthan, its Women & Child Welfare Department, its
department of Social Welfare, and the Union of India.The Vishaka judgement recognized sexual harassment
as “a clear violation” of the fundamental Rights of equality, non-discrimination, liberty and life, as well as the
right to carry out any occupation. Hence the PIL was filled for the interest of the public.

[2] WHETHER EXCEPTION II OF SEC. 375 OF INDIAN PENALCODE,1860 IS

CONSTITUTIONAL OR NOT?

Petitioner through this PIL challenges the constitutional validity of exception-2 to section-375 as petitioner
envisage that there is the infringement of fundamental rights guaranteed to every citizen of India under Article
-14 and 21 of the constitution for women of all ages who fell prey to the acts of marital rape.
Inspite of the fact that many rules and laws are framed in the favour of women in India, women voice are still
barred in many aspects. Rape is a crime which not only infringe the dignity of women but detriment the soul
of the lady whether committed by the stranger or her own husband.
Marital rape is such a disservice act against females that it has already been criminalised in all fifty states of
America under one section of Sexual offence Code in 1993. In England and New Zealand Marital rape was
criminalised in year 1991 and 1985. In the landmark case of R v. R7 of England it was held by the house of
lords that that a husband could not be guilty of raping his wife if he forced her to have sexual intercourse
against her will was an anachronistic and offensive common-law fiction, which no longer represented the
position of a wife in present-day society, and that it should no longer be applied. This same principle was also
followed in the famous case of SW v. UK8 by European Courts of Human Rights. In case of People v. MD9
it had been understood by the Court that exemptions of marital rape in past in American and English were
made to only justify the subjugation of Women but now there is no need of such exemptions in modern
American law and society and hence held that exceptions of marital rape will no longer hold any weight.
Even the United Nations Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW), of which India is a signatory, has viewed that this sort of discrimination against women violates
the principles of equality of rights and respect for human dignity. Later on, Human Rights commission, at its
fifty-first session, The elimination of violence against women, recommended that marital rape should be
criminalized.
Infringement of Article-14

Petitioner wants to convey that Article-14 of the constitution states that the state shall not deny to any person
“equality before the law” and the “equal protection of the law” within the territory of India and also these two
expressions are mention in the Universal declaration of Human Rights.

6
A.I.R 1997 S.C.3011
7
(1992) 1 AC 599
8
(1996) 21 EHRR 363
9
(1992)-III Anr.Ct.711
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 Memorandum for the Appellant
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-Argument Advanced- - Appellant-
If these right are guaranteed to all citizens of India including women of all ages then it’s clear that state
according to section-375 exception-2 of IPC discriminates between the married women, unmarried women
and married women above the age of 18 years. In the case of Rubinder Singh v. Union of India10, Court held
that Rule of law requires that no person shall be subjected to Uncivilised, harsh or discriminatory treatment
even when the object is securing and safeguarding the paramount exigencies of law. This view is also
expressed in the case of State of West Bengal v. Anwar Ali Sarkar11, where Court held that Equal law
should be applied equally to all in the same situations, and there should be no essence of discrimination
between one person and another. In this case it was also laid down that there can be no discrimination both in
the substantive and procedural laws. Petitioner wants to proclaim that the rights which are granted by the
constitution under Article-14 are violative for women because of the discrimination made by the state. In the
case of Vishaka v. State of Rajasthan12 Supreme Court has realised the true concept of gender equality and
enumerates that gender equality includes protection from sexual harassment and right to work with dignity.
Article 14 therefore protects a person from State discrimination. But the exception under Section 375 of the
Indian Penal Code, 1860, discriminates with a wife when it comes to protection from rape. Thus, it is
submitted, that to this effect, exception provided under Section 375 of the Indian Penal Code, 1860, is not a
reasonable classification, and thus, violates the protection guaranteed under Article 14 of the Constitution.

Infringement of Article-21 of Constitution

Article-21 of the constitution protects the right to life and personal liberty of the citizens of India. Article-21
provides the right to human dignity and life. In the landmark case of Maneka Gandhi v. Union of India13
Court held that Right to live it’s not merely confined to physical existence but it includes within its pace the
right to live with human dignity. Every women who is the citizen of India has this right.
In the famous case of Francis Coraille Muin v. Union Territory of Delhi14 the perception of right to life
under Article-21 was reflected. In this case it has been stated that Article 21 incorporates the right to live with
human dignity and all that accompanies it, to be specific, the minimum essentials of life, for example, adequate
nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse
forms, freely moving about and mixing and mingling with fellow human beings.
The right to live with human dignity is a standout amongst the most fundamental component of the right to
life which perceives the independence of a person. In the issue of marital rape where husband forces his wife
for sexual intercourse wife should have full right to whether give or reject her consent for it and if then to
Husband forces her wife to do so then the act can be considered as rape as whether the act was done by women
own husband but then to it detriments the human dignity of that women and promulgating such act is a crime
against society. It has been clearly illustrated by the Supreme Court in the case of The Chairman, Railway
Board v. Chandrima Das15 that rape is not merely an offence under the Indian Penal Code, but is a crime
against the society as whole as it harms the human dignity of the women as well as violates the fundamental
rights of the women. In section-375 of Indian Penal code the conditions for rape has been defined and also
exception 2 states that sexual intercourse by a man with his wife below 18 years will be consider as rape.

10
Rubinder Singh v. Union of India, A.I.R.1983 S.C.65
11
West Bengal v. Anwar Ali Sarkar, A.I.R.1952 S.C.75
12
Vishaka v. State of Rajasthan, A.I.R.1997 S.C.3011
13
Maneka Gandhi v. Union of India, A.I.R.1978 S.C.597
14
Francis Coraille Muin v. Union Territory of Delhi, A.I.R.1981 S.C.746
15
The Chairman, Railway Board v. Chandrima Das, A.I.R. (2000) 2 S.C.465
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 Memorandum for the Appellant
8TH RGNUL NATIONAL MOOT COURT COMPETITION,2019
-Argument Advanced- - Appellant-

Does women above the age of 18 have no right to life? According to this provision marital rape is considered
as the lesser degree of sexual offence but whether the sexual offence is of higher degree or lesser degree it
should be consider as crime and unlawful.
In the case of Bodhisattwa Gautam v. Subhra Chakraborty16 court held that rape is to a lesser degree a
sexual offense than a demonstration of hostility gone for corrupting and mortifying the ladies. In this manner
the marital exception principle is violative of spouse's entitlement to live with human dignity. Any law which
damages ladies' entitlement to live with dignity and gives spouse appropriate to drive wife to have sexual
intercourse without her will is along these lines unlawful.

Right to privacy is a right which is of great importance for women residing in the society. Every Women has
the right of choice and to maintain her personal space. In landmark Case of R. Rajgopalan v. State of T.N17
popularly known as Auto Shanker Case it was held by the SC that every citizen has the right to safeguard the
privacy of his own, marriage, motherhood, procreation, their family, child bearing matters and education
matters. In famous case of, Suchitra v. Chandigarh Administration18, Supreme Court held that Personal
liberty in Article-21 includes right to make reproductive choice and also stated that women’s bodily integrity
and privacy should be respected. In the case of State of Maharashtra v. Madhkar Narayan19, SC held that
every woman is entitled to her sexual privacy and it is not open, for any and every person to infringe her
privacy as and whenever he wished or wanted. The Supreme Court extended this right of privacy in the
landmark case of Vishakha v. State of Rajasthan20 in working environment. Further, along with a similar
line we can translate that there exists a right of privacy to get into a sexual relationship even inside a marriage
as women inside a marriage plays her working role according to the environment and his duties towards her
husband, children and family.

The judicial interpretation has expanded the scope of Article 21 of the Constitution of India by leaps and
bounds and “right to privacy” as well as "right to live with human dignity" is within the ambit of this article.
Marital rape clearly violates the right to live with dignity of a woman and to that effect, it is submitted, that
the exception provided under Section 375 of the Indian Penal Code, 1860 is violative of Article 21 of the
Constitution.

16
Bodhisattwa Gautum v. Shubhra Chakraborty, A.I.R.1996 S.C.922
17
R.Rajgopalan v. State of Tamil Nadu, A.I.R.1994 6 S.C.C.632
18
Suchitra v. Chandigarh Administration, A.I.R.2010 S.C.235
19
State of Maharashtra v. Madhkar Narayan,A.I.R.1991 S.C.207
20
Vishaka v. State of Rajasthan, A.I.R.1997 S.C.3011
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 Memorandum for the Appellant
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-Argument Advanced- - Appellant-

PRAYER

Wherefore it is prayed,in the light of the issue raised, argument advanced and authority cited, that this Hon’ble
Court may kindly be pleased to :
1. That, PIL should be maintained.
2. That exception-2 to section-375 is Unconstitutional and, there should not be made any distinction
between rape within and outside the marriage and hence it should be criminalized.

And pass any other order, direction, or relief that it may deem fit in the best interest of justice,
fairness, equity and good concerns.
For this act of kindness, the appellant shall duty bound forever.

Council for the Appellant

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