B.M.

SREENIVASAIAH MEMORIAL 7THNATIONAL MOOT COURT COMPETITION, 2022

MEMORIAL FOR RESPONDENT

TC: R-XX

B.M. SREENIVASAIAH MEMORIAL 7 TH NATIONAL MOOT COURT

COMPETITION, 2022

Before

THE HON’BLE SUPREME COURT OF INDIA

UNDER § 136 OF THE CONSTITUTION OF INDIA

Civil Appeal No.____/2022

IN THE CLUBBED MATTER OF

1. STATE OF SINDHU DESH

2. THE KARUNADU HARASSED HUSBANDS ASSOCIATION (“KHHA”)
3. SHRUTHYALAYA…..………………………………………………PETITIONER

VERSUS

1. STATE OF KARUNADU……………………………………………….RESPONDENT

UPON SUBMISSION TO

THE HON’BLE CHIEF JUSTICE AND HIS COMPANION JUSTICES

OF

THE HON'BLE SUPREME COURT OF INDIA

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-MEMORANDUM ON BEHALF OFTHE RESPONDENT

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-TABLE OF CONTENTS-

-TABLE OF CONTENTS-............................................................................................................I

-TABLE OF ABBREVIATIONS-..............................................................................................III

-INDEX OF AUTHORITIES-.....................................................................................................V

-STATEMENT OF JURISDICTION-.......................................................................................VI

-STATEMENT OF FACTS-........................................................................................................VII

-ISSUES RAISED-.....................................................................................................................VIII

-SUMMARY OF ARGUMENTS-................................................................................................IX

-ARGUMENTS ADVANCED-......................................................................................................1

ISSUE 1 - THAT THE SPECIAL LEAVE PETITION FILED UNDER ARTICLE 136 OF THE
CONSTITUTION OF SINDHU DESH IS PROPER AND/OR VALID SINCE THE STATE IS
UNDER OBLIGATION TO TREAT MEN AND WOMEN EQUALLY............................................1

A.1 THE PETITIONER DOES NOT POSSESS THE REQUISITE LOCUS STANDI..................1

ISSUE 2 -THAT EXCEPTION 2 OF SECTION 375 OF THE SINDHU DESH PENAL CODE
IS VIOLATIVE OF ARTICLE 14, 19 AND 21 OF THE CONSTITUTION................................5

B.1 EXCEPTION 2 OF SECTION 375 OF THE SINDHU DESH PENAL CODE IS VIOLATIVE OF ARTICLE 14
.........................................................................................................................................................5

B.1.1 EXCEPTION II OF SECTION 375 CREATES AN UNREASONABLE CLASSIFICTION....6

B.1.2 THE CLASSIFICATION DOES NOT HAVE A REASONABLE NEXUS WITH THE
OBJECT...........................................................................................................................................8

B.1.3 EXCEPTION II IS MANIFESTLY ARBITRARY...................................................................10

B.2 EXCEPTION II TO § 375 OF THE INDIAN PENAL CODE VIOLATES ARTICLE.............11

19 OF THE INDIAN CONSTITUTION.........................................................................................11

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B.2.1 MARRIED WOMEN HAVE THE FUNDAMENTAL RIGHT TO GIVE EXPLICIT CONSENT UNDER
ARTICLE 19(1)(A)............................................................................................................................11

B.2.2.1 EXCEPTION II IMPOSES A RESTRICTION ON A WOMEN'S RIGHT TO GIVE CONSENT TO SEXUAL

INTERCOURSE WITHIN THE MARRIAGE..............................................................................................13

B.3 EXCEPTION II TO § 375 OF THE SINDHU DESH PENAL CODE VIOLATES ARTICLE 21
OF THE CONSTITUTION............................................................................................................15

B.3.1 EXCEPTION II VIOLATES THE RIGHT TO PRIVACY OF MARRIED WOMEN....................................16

B.3.2 EXCEPTION II VIOLATES THE RIGHT TO HEALTH AND REPRODUCTIVE CHOICE OF A MARRIED
WOMAN............................................................................................................................................17

ISSUE 3 -- 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...............................18

C.1 FORCEFUL INTERCOURSE BY HUSBAND WITH HIS WIFE CAN BE CRIMINALIZED AS IT CHALLENGES
HER DIGNITY ALONG WITH HER FUNDAMENTAL RIGHTS....................................................................19

C.2 RAPE AFFECTS MARRIED AND UNMARRIED WOMEN SIMILARLYAND MARITAL RELATIONSHIP
SHOULD NOT BE A VALID DEFENCE IN RAPE CASES...........................................................................22

ISSUE 4- THAT THE OFFENCE OF RAPE UNDER SECTION 375 OF THE SINDHU DESH
PENAL CODE IS REQUIRED TO BE MADE GENDER NEUTRAL...........................................24

D.1 EVERY GENDER IN THE SOCIETY DESERVES EQUAL PROTECTION UNDER ARTICLE 14, 15 AND 21.
.......................................................................................................................................................24

D.2 THE UNDERLYING LEGAL APPROACH TO TACKLE SEXUAL VIOLENCE AGAINST WOMEN HAS BEEN
ALONG THE LINES OF PATRIARCHY...................................................................................................26

D.3 MAKING SECTION 375 GENDER- NEUTRAL WOULD GO A LONG WAY IN PROTECTING THE RIGHTS
OF THE LGBTQ COMMUNITY...........................................................................................................29

-PRAYER-.....................................................................................................................................IX

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-TABLE OF ABBREVIATIONS-

AIR ALL INDIA REPORT

ANR. ANOTHER

ED . EDITION

GOVT. GOVERNMENT

HON’BLE HONORABLE

IPC INDIAN PENAL CODE

LTD. LIMITED

ORS. OTHERS

P. PAGE

PVT. PRIVATE

SC SUPREME COURT

SCC SUPREME COURT CASES

SCR SUPREME COURT REPORTS

SLP SPECIAL LEAVE PETITION

UOI UNION OF INDIA

VOL. VOLUME

V. VERSUS
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& AND

¶ PARAGRAPH

§ SECTION

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-INDEX OF AUTHORITIES-

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-STATEMENT OF JURISDICTION-

The Respondents have the honour to submit before the Hon’ble Supreme Court of Republic of
Sindhu Desh, the Memorandum for the Respondents under Article 136 1(SPECIAL LEAVE
PETITION) of the Constitution of Republic of Sindhu Desh, 1950.

The present memorandum sets forth the facts, contentions, and arguments in the present case.

1
INDIA CONST. art 136

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-STATEMENT OF FACTS-

-THE BACKGROUND-

Igor and Laila, an arranged couple, got married on August 10, 2021.Laila wanted time to get
comfortable around Igor before consummating their marriage. However, on October 14, 2021,
the couple go to a party where they get intoxicated and Laila, in intoxicated state is unable to
communicate properly and goes to sleep when Igor again asks to consummate the marriage.

Next morning, Laila finds her clothes in disarray and concludes that Igor had sexual intercourse
with her. Feeling traumatized, violated and contempt for theactions of Igor, she files a police
complaint and a FIR under Sections 350, 351, 354, 375 r/w 376 was registered on October 15,
2021 against Igor. Laila was examined by a Doctor at the Government Hospital at Vitosha who
opined on the occurrence of ‘vaginal penetration, genital injury and finding traces of semen on
her clothes’.

-THE CONFLICT-

On December 10, 2021,jurisdictiona Magistrate altered the charges and removed the reference to
commission of offences under Section 375 r/w Section 376 of the Penal Code citing Exception 2
of Section 375.

Laila filed a writ petition under Article 226, challenging the vires of Exception 2 of Section 375
of the Sindhu Desh Penal Code under Articles 14, 19 and 21.On May 25, 2022,the Division
Bench of High Court held that Exception 2 to Section 375 of the Sindhu Desh Penal Code is
ultra-vires and directed 375 to be made gender neutral.

Karunadu Harassed Husbands Association (KHHA)and Shruthyalaya filed impleading

applications before the Supreme Court.Further, Prime Minister of Republic of Sindhu Desh said
that he would have the judgment of the High Court of Karunadu challenged since criminalisation
of marital rape would lead to “excessive interference with the institution of marriage” and on
June 10, 2022, SLP was filed against HC’s judgement.

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-ISSUES RAISED-

-ISSUE I-

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 II-

WHETHER EXCEPTION 2 OF SECTION 375 OF THE SINDHU DESH PENAL CODE IS VIOLATIVE

OF ARTICLE 14, 19 AND 21 OF THE CONSTITUTION?

-ISSUE III-

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 IV-

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-

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-ARGUMENTS ADVANCED-

ISSUE 1 - THAT THE SPECIAL LEAVE PETITION FILED UNDER

ARTICLE 136 OF THE CONSTITUTION OF SINDHU DESH IS PROPER
AND/OR VALID SINCE THE STATE IS UNDER OBLIGATION TO TREAT
MEN AND WOMEN EQUALLY

1. It is hereby humbly submitted before the Hon’ble Court that

A.1 THE PETITIONER DOES NOT POSSESS THE REQUISITE LOCUS STANDI

2. It is humbly submitted before the Hon’ble Supreme Court (hereinafter referred to as SC)
that the Special Leave Petition against the judgment of Hon’ble High Court is not maintainable
as (A.1.1) Special Leave cannot be granted when substantial justice has been done and no
exceptional or special circumstances exist for case to be maintainable. Also in the present case,
(A.1.2) no substantial question of law is involved and interference is based on pure question of
fact which is entitled to be dismissed.

A.1.1 NO EXCEPTIONAL AND SPECIAL CIRCUMSTANCES EXISTS AND SUBSTANTIAL JUSTICE HAS
BEEN DONE IN THE PRESENT CASE.

3. The counsels, on behalf of the Respondent, contends that the Appellant must show that
exceptional and special circumstances exists and that if there is no interference, substantial and
grave injustice will result, and the case has features of sufficient gravity to warrant review of the
decision appealed against on merits. Only then the Court would exercise its overriding powers
under Art. 136. Special leave will not be granted when there is no failure of justice or when
substantial justice is done, though the decision suffers from some legal errors.
4. The Republic of Sindhu Desh bases its argument on the intention to protect the institution
of marriage for the larger stability of the society, but a glaring fallacy in this approach would be

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that the harms caused to women because of failure in criminalizing marital rape will far
outweigh the harms apparently caused to society because of a broken marriage.
5. Moreover, with the State creating laws criminalizing cruelty and with the PWDVA,
20052 it is implicit that the State has understood that the protection of the institution of marriage
cannot be an overarching goal. Further, such an approach only reinforces the public and private
dichotomy, and thus, should be avoided. The aforementioned arguments have attempted to
establish that there is no basis for treating married and unmarried women differently with respect
to rape. The requirements for Article 14 3as laid down in present law require not just a nexus
between the purpose to be achieved and the law, but also that the law is not arbitrary.
6. In the case of Independent Thought v. Union of India,4 the Hon’ble Court partly
struck down a part of the exception clause in §375 5of IPC. Under the Protection of Children
from Sexual Offences Act, 2012 (‘POCSO’)6, it is illegal to have sexual intercourse with a child
under the age of eighteen. However, the exception clause allows for this in the event a girl is
married and is between the ages of fifteen to eighteen. This clearly creates an unreasonable
differentiation the indivisible section of minor girls below the age of 18.
7. The Court, in the aforementioned case, noted that this differential treatment on the
basis of marriage was wholly unconstitutional. This was because marriage did not serve as
reasonable classification. Although the Court was keen on noting that the judgment was not for
adult marital rape,7 it is encouraging that the Court has recognised that women’s rights cannot be
subsumed on the basis of marriage.
8. Furthermore, expounding on the aforementioned arguments, it can be established
that there exists no presupposition of consent to sexual activities in a marriage. Moreover, to not
criminalise marital rape simply to protect the institution of marriage when there is a
constitutional right at stake and when other forms of violence have been criminalised, would be
arbitrary. Thus, this fails the test of Art. 14, and the exception clause is hence, unconstitutional.
9. Moreover, by bringing to light the equality among both the husband and wife, the
argument that marriage entails consent of the wife to sexual intercourse is also negated. The
2
The Protection of women from domestic violence Act, 2005 (India)
3
INDIA CONST. art 14
4
Independent Thought v. Union of India, AIR 2017 SC 4904
5
Indian Penal Code, 1860, § 375
6
Protection of Children from Sexual Offences Act, 2012
7
Id., ¶2. See Deya Bhattacharya, SC Says Marital Rape Can’t be Considered Criminal: Tradition Doesn’t Justify
Assault, Child Marriage, Firstpost (India) October 11, 2017

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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.
10. However, marriage cannot presuppose consent to every sexual activity. Even if it is
visualized that sexual relationships are a term in the contract of marriage, consent to sexual
intercourse at all points in the marriage cannot hold competent in view of general rules to
contract law. A contract which is ambiguous, contrary to public policy and is uncertain is not a
valid contract8. 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.

A.1.2 NO SUBSTANTIAL QUESTION OF LAW IS INVOLVED IN THE PRESENT CASE AND

INTERFERENCE IS BASED ON PURE QUESTION OF FACT WHICH IS ENTITLED TO BE DISMISSED

11. The counsel, on behalf the Respondent, humbly submits that the concept of marriage in
the law has evolved significantly over the past few decades. At present, specific laws for various
religions govern the domain of marriage or if the parties to the marriage, so choose, a religion
neutral law will be applicable9. This codification of laws for marriage has changed the dynamics
of the spousal relationship. At the very outset, the archaic understanding of the role of women in
a marriage was to view women as property belonging to the husband 10.If not property, it was to
view the woman as not equal to the husband, keeping in mind gender roles. However, with the
codification, there is no difference in the status of either husband or wife in the marriage.
12. Moreover, in codified legislations such as the Hindu, Christian, Parsi, Special Marriage
Act, there is no difference mentioned in the laws regarding the status of the wife and the
husband. It is not possible to infer that woman are the property of their husband, in light of clear
8
The Indian Contract Act, 1872, §23 and 29
9
The Hindu Marriage Act, 1955; Dissolution of Muslim Marriage Act, 1939; Parsi Marriage and Divorce Act, 1936;
Indian Divorce Act, 1869; The Special Marriage Act 1954.
10
Lisa R. Eskow, The Ultimate Weapon: Demythologizing Spousal Rape and Reconceptualising its Prosecution, 48
Stanford L. Rev. 680 (1996)

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constitutional rights mandating equality between the sexes. Even when parties marry under
Islamic personal law, both religious scholars as well as case law precedents affirm that the status
of husband and wife under Islamic law is equal, dispelling the notion of women being property11.
13. An argument of inequality of women before men in marriage will never satisfy the
requirements of Art. 14 in view of extensive case law and constitutional jurisprudence in favour
of the equality between the genders, with the SC now moving beyond the binary of man and
woman to recognise the third gender as well 12. By bringing to light the equality among both the
husband and wife, the counsels, on behalf of the Respondent, also negate the argument that
marriage entails consent of the wife to sexual intercourse.

A.2 STRIKING DOWN EXCEPTION II OF SECTION 375 WILL AMOUNT TO

JUDICIAL LEGISLATION.
14. The Hon'ble SC in Social Action for Manav Adhikar v. Union of India held that it is not
the duty of the courts to issue directions in policy matters 13. It is for the legislature and the
executive to decide on matters of public policy14. The courts neither create offences nor do they
introduce or legislate punishment15.
15. Moreover, the legislature has brought recent amendments to the rape laws. The court
would be creating and legislating a new offence by striking down Exception II, which is out of
its purview and is the primary task in the hands of the legislature. The court should not entertain
a question of legislative importance because it would lead to infringement of doctrine of
separation of powers and consequently, will be inconsistent with the principle of constitutional
democracy.
16. Hereby, it is humbly submitted before the Hon’ble Court that the Special Leave Petition
filed under Article 136 of the Constitution of Sindhu Desh is not valid.

11
Mohd. Naseem Bhat v. Bilquees Akhtar, (2016) 1 JKJ 312
12
National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
13
Manav Adhikar v. Union of India, (2018) 10 SCC 443
14
Id.; also see Rajesh Sharma v. State of Uttar Pradesh, (2018) 10 SCC 472; Union of India v. Deoki Nandan Agarwal,
A.I.R. 1992 S.C. 96.
15
Census Comm'r v. R. Krishnamurthy, (2015) 2 SCC 796. Also see State of Punjab v. Ram LubhayaBagga, (1998) 4
SCC 117 (India); Vemareddy Kumaraswamy Reddy v. State of Andhra Pradesh, (2006) 2 SCC 670; N.K. Prasada v.
Gov't of India, (2004) 6 SCC 299.

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ISSUE 2 -THAT EXCEPTION 2 OF SECTION 375 OF THE SINDHU DESH

PENAL CODE IS VIOLATIVE OF ARTICLE 14, 19 AND 21 OF THE
CONSTITUTION

1. It is humbly submitted before the Hon’ble Court that Exception 2 of § 375 of the Sindhu
Desh Penal Code is violative of (B.1) Art. 14, (B.2) 19 and (B.3) 21 of the Constitution

B.1 EXCEPTION 2 OF SECTION 375 OF THE SINDHU DESH PENAL CODE IS VIOLATIVE OF
ARTICLE 14

2. It is reverently submitted before the Hon'ble SC that exception 2 of section 375 which
states that non-consensual sexual intercourse by a man with his own wife, the wife not being
under eighteen years of age, is not rape, is violative to equality enshrined in Art. 14 as there is no
intelligible differentia in the classification. Thus, it is arbitrary in nature.
3. Art. 14 is the ‘fon juris’ of the Indian Constitution and the fountain of justice. It is
humbly submitted to the Hon’ble Court that Exception II is violative of Art. 14 of the
Constitution because first, Exception II creates an unreasonable classification [B.1.1]; and
secondly, Exception II is manifestly arbitrary [B.1.2].

B.1.1 EXCEPTION II OF SECTION 375 CREATES AN UNREASONABLE

CLASSIFICTION

4. In order to pass the test of reasonable classification under Art. 14, the classification
should be based on an intelligible differentia 16 and the differentia should have a reasonable nexus
with the object sought to be achieved by the law in question.17
5. Drawing from the above argument, Exception II keeps outside the ambit of ‘rape’ a non-
consensual sexual intercourse between a husband and wife during the course of their marriage. 18
It creates two classes of rape victims: former being, married women who are raped by their
husband in the course of their marriage, who cannot approach police and cannot seek punishment

16
Naresh Kumar v. Union of India, (2004) 4 SCC 540. Also see State of Uttar Pradesh v. Ram Gopal Shukla, 1981
A.I.R. 1041; Dhirendra Pandua v. State of Orissa, (2008) 17 SCC 311.
17
Budhan v. State of Bihar, A.I.R. 1955 S.C. 191. Also see Harakchband v. Union of India, A.I.R. 1970 S.C. 479;
Union of India v. S.C. Bagari, A.I.R. 1999 S.C. 1412; Moulin Rouge Pvt. Ltd. v. Commercial Tax Officer, A.I.R.
1998 S.C. 219.
18
The Indian Penal Code 1860, 1860, No. 45, § 375.

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under the IPC for ravishment of her dignity and the latter being, unmarried women who are
raped by a man, not being their husband, who are entitled to protection by the criminal law under
§. 375 and §. 376.
6. Intelligible differentia i.e. the basis of classification 19, must be rational 20
and based on
some qualities or characteristics21, which are to be found in all the persons grouped together and
not in others who are left out. Explicating on this argument, it is humbly submitted before the
Hon’ble Court that there is no intelligible differentia in classifying victims of rape on the basis of
marital status.

B.1.1.1 THE BASIS OF CLASSIFICATION IS ULTRA VIRES

7. The basis of classification can be anything reasonable 22until and unless it is ultra vires,
i.e. it is expressly prohibited by the Constitution. 23 Equality before the law is a basic feature of
the Constitution24 and any treatment of equals unequally will be ultra vires 25, and violative of Art.
14.26 There is no intelligible differentia in sub-classifying people of an indivisibleclass, and
which treats equals unequally.27
8. Expounding on the aforementioned arguments, Exception II unreasonably creates sub-
class of rape victims based on their marital status. The nature of the act of rape remains the
same28 and a rapist continues to stand as a rapist29 irrespective of whether the heinous act30 is
committed within or outside marriage. Rape victims, irrespective of their marital status constitute
19
State of West Bengal v. Anwar Ali Sarkar, A.I.R. 1952 S.C. 284.
20
Union of India v. Indian Charge Chrome, (1999) 7 SCC 314. Also see Mohan Kumar Singhania v. Union of India,
A.I.R. 1992 S.C. 1
21
Sakhwant Ali v. State of Orissa, A.I.R. 1955 S.C. 166
22
SonubhaiYeshwant Jadhav v. BalaGovinda Yadav, A.I.R. 1983 Bom. 156
23
R.K. Dalmia v. Justice Tendulkar, A.I.R. 1958 S.C. 538
24
Indra Sawhney v. Union of India, (2000) 1 SCC 168; Also see M.G. Badappanavar v. State of Karntataka, (2001) 2
SCC 666; Ajit Singh (II) v. State of Punjab, (1999) 7 SCC 209.
25
Jaipur Dev. Auth. v. Daulat Mal Jain, (1997) 1 SCC 35; Yogendra Kumar Jaiswal v. State of Bihar, (2016) 3 SCC 183
(India); State of Mysore v. M.H. Krishna Murthy, (1973) 3 SCC 559.
26
Uttar Pradesh Power Corp. v. Ayodhya Prasad, (2008) 10 SCC 139. Also see Indra Sawhney v. Union of India, 1992
Supp (3) SCC 21
27
B. Prabhakar Rao v. State of Andhra Pradesh, A.I.R. 1986 S.C. 210.
28
Independent Thought v. Union of India, (2017) 10 SCC 800 ; Vikram Singh v. State of Himachal Pradesh, 2018
SCC OnLine HP 356; Kennedy v. Luoisiana, 554 U.S. 407 (2008); C.R. v. U.K, App. No. 00020190/92, 1 E.C.H.R.
(1995).
29
R. v. R, [1991] U.K.H.L. 12; see also Philip N. S. Rumney, When Rape Isn't Rape: Court of Appeal Sentencing
Practice in Cases of Marital and Relationship Rape, 19 OXFORD J. LEGAL STUD. 243, 255 (1999).
30
Kaushal Kishore v. State of Uttar Pradesh, (2016) 9 SCC 395; See also Om Prakash v. State of Raj., (2012) 5 SCC
201; Ratan Lal v. State of Raj., 2003 SCC OnLine Raj 317.

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as one indivisible class and Exception II which further sub-classifies rape victims treats the
equals of one indivisible class unequally.31
9. Moreover, In the case of Independent Thought vs. Union of India and Anr 32, the Hon’ble
SC held that Exception 2 of Section 375 IPC is liable to be struck down on grounds that it is
discretionary and violative of Article 14, 15 and 21 of the Constitution of India and it is
conflicting with the provisions of POCSO, which must prevail as it a special law for the
protection of girl child.
B.1.1.2 THE BASIS OF CLASSIFICATION IS IRRATIONAL AND ARBITRARY
10. Extending on the aforementioned arguments, if the basis of classification is on the face of
it arbitrary and palpably unreasonable, it is not found on differentia intelligible. 33 Furthermore, in
Savita Samvedi v. Union of India,34 it was held that classification based on marital status is
wholly unfair, unreasonable and liable to be struck down under Art. 14.
11. The petitioner submits that Exception II classifies the victims of heinous crime of rape on
the basis of their marital status as it does not recognize rape within marriage and fails to provide
protection of §. 37535 to married women.
12. Hence, on the basis of above argument and observation drawn out of the instant case, it
can be said that Laila has not been provided the necessary protection solely on the basis of her
marital status. It is submitted that Exception II which classifies the victim of rape on the basis of
their marital status is wholly arbitrary and irrational.

B.1.2 THE CLASSIFICATION DOES NOT HAVE A REASONABLE NEXUS WITH THE
OBJECT

13. It is humbly submitted before the Hon’ble Court that the classification does not have a
reasonable nexus with the object sought to be achieved by criminal law prohibiting sexual
offence because first, the object is to protect the dignity of women and punish the offender, and
secondly, the classification is inconsistent and contrary to the object sought to be achieved.

31
State of Madhya Pradesh v. Munna Choubey, (2005) 2 SCC 710; See also Bhupinderbh Sharma v. State of
Himachal Pradesh, (2003) 8 SCC 551.
32

33
R.K. Garg v. Union of India, (1981) 4 SCC 675.
34
SamvitaSamvedi v. Union of India, (1996) 2 SCC 380.
35
The Indian Penal Code 1860, No. 45 of 1860, § 375

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B.1.2.1 THE OBJECT IS TO PROTECT THE DIGNITY OF WOMEN AND PUNISH THE OFFENDER

14. The object of the Act in question shall be ascertained from an examination of its title,
preamble and provision.36 The offence of ‘rape’ contained in §.37537 comes under the title of
‘sexual offences’ under chapter XVI38 of the IPC dealing with ‘offences affecting the human
body’.
15. § 375 is a criminal law prohibiting sexual offences. Further, the object of criminal law
prohibiting sexual offences is to protect the dignity and honour of a victimized woman 39 and
punishing the criminal by imposing an appropriate sentence. 40 Hence, it is humbly submitted
before the Hon’ble Court that the object of Exception II is to protect the dignity of women and
punish the criminal. Drawing from this argument, in the case at hand, it can be concluded that
Laila’s right to dignity has been violated after the act of sexual intercourse without her consent.

B.1.2.2 THE CLASSIFICATION IS INCONSISTENT AND CONTRARY TO THE OBJECT.

16. In addition, ‘reasonable nexus’ between differentia and ‘object of law’ means that the two
elements are logically or rationally related to one another. 41 If the classification is inconsistent 42
or contrary43 to the purpose or the objective for which the law in question was established, it is
unconstitutional being violative of Art. 14.44
17. Explicating on the same, first, the classification made by Exception II creates a separate
class of married rape victims who even after being raped by their husbands cannot seek the
protection of the law. Secondly, the classification, instead of protecting the dignity of the victim
and punishing the male offender, provides a free legal license upon marriage to the offender i.e.
the husband, to continue with the cruel acts, hampering the dignity of his wife.

36
2 BASU, supra note 5, at 1414.
37
The Indian Penal Code 1860, No. 45 of 1860, § 375
38
The Indian Penal Code 1860, No. 45 of 1860
39
RATANLAL & DHIRAJLAL, THE INDIAN PENAL CODE 2074 (32nd ed. 2010); State of Karnataka v.
Krishnappa, (2000) 4 SCC 75.
40
Id. At 50; see also State of Andhra Pradesh v. BodemSundara Rao, (1995) 6 SCC 230.
41
1 H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA 455 (4th ed. 2010)
42
Surendra Mohan Arora v. H.D.F.C. Bank Ltd., (2014) 15 SCC 294.
43
Utkal Contractors & Joinery Pub. Ltd. v. State of Orissa, (1987) 3 SCC 279; See also Wipro Ltd. v. Collector of
Customs, (2015) 14 SCC 161.
44
E.V. Chinnaiah v. State of Andhra Pradesh, (2005) 1 SCC 394; See also Mahesh Chandra Jain v. Uttar Pradesh
Financial Corp., (1993) 2 SCC 279; Raghunathro Ganpatrao v. Union of India, 1994 Supp (1) SCC 191.

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18. Henceforth, it is humbly adduced that there is no logical or rational relation between the
classification of rape victims on the basis of marital status and the object of criminal law
prohibiting sexual offences and the classification is inconsistent and contrary to the objective
sought to be achieved.
B.1.3 EXCEPTION II IS MANIFESTLY ARBITRARY

19. If an act is arbitrary, it is implicit that the act is antithetic to equality and thus violative of
Art. 14.45 A legislation is manifestly arbitrary in the sense that it is made capriciously,
irrationally, without adequate determining principle, not fair, not reasonable, discriminatory,
biased and/or denies equal treatment.46
20. It is hereby submitted that the Exception II which provides immunity to the husband from
marital rape is manifestly arbitrary because it is based on the outdated concept that by marriage,
a wife submits herself irrevocably to sexual demands of her husband in all circumstances 47and
secondly, Exception II is discriminatory and formed without any adequate determining principle.
21. In addition, Exception II which provides for immunity from marital rape stems out of
archaic and outdated notion of marriage which considers wives as equal to the chattel and
property of their husbands.48 Further, it was believed that a husband was no more capable of
raping his wife likewise an owner is incapable of stealing his property.49
22. Moreover, a husband is not immune from prosecution as far as other offences related to
women as under §. 354, §.498A and §.377 of IPC and §. 3 of the Protection of Women from
Domestic Violence Act, 200550 are concerned. However, Exception II is the only provision in
various penal laws which gives immunity to the husband for sexual offences committed upon
women.
45
Iftikhar Hussain Shah v. State of J.&K., 2018 SCC OnLine J&K 527; See also E.P. Royappa v. State of Tamil
Nadu, (1974) 4 SCC 3; A.V. Muniswamy v. State of Karnataka, 1985 SCC OnLine Kar 94; 1 KASHYAP, supra
note 31, at 465.
46
ShayaraBano v. Union of India, (2017) 9 SCC 1; See also Swiss Ribbons Pvt. Ltd. v. Union of India, 2019 SCC
OnLine SC 73; L.I.C. v. Consumer Educ. & Research Centre, (1995) 5 SCC 482; Lachhman Dass v. State of Punjab,
A.I.R. 1963 S.C. 222; State of Orissa v. Bidyabhushan Mohapatra, A.I.R. 1963 S.C. 779, Nikesh Tarachand Shah v.
Union of India, (2018) 11 SCC 1; Sharma Transp. v. Gov't. of Andhra Pradesh, (2002) 2 SCC 188; State of Tamil
Nadu v. K. Shyama Sunder, (2011) 8 SCC 737.
47
Id. at 1376; H.M. Advocate v. Duffy, (1983) S.C.(J.) 3 (Scot.); H.M. Advocate v. Paxton, (1984) S.C.(J.) 105
(Scot.).
48
Justice J.S. Verma (Retd.), Report of the Comm. on Amendments to Criminal Law, (March 13),
https://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe% 20report.pdf.
49
Charlotte L. Mitra, For She Has no Right or Power to Refuse Her Consent, 32 CRIM. L. REV. 558, 560 (1979).
50
The Protection of Woman from Domestic Violence Act, 2005, No. 43 of 2005, Acts of Parliament, 2005, § 3
(India).

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23. Further, it is contended that this discrimination is irrational unreasonable because on the
one hand, a husband may be charged for a lesser offence while he is left unpunished for
committing the offence of rape which is a more heinous 51 crime and destroys the entire
psychology of a women and pushes her to deep emotional crisis.52

B.2 EXCEPTION II TO § 375 OF THE INDIAN PENAL CODE VIOLATES ARTICLE

19 OF THE INDIAN CONSTITUTION
24. In the case of Dharam Dutt v. Union of India53, it was observed that when a legislative
enactment is challenged as being violative of a fundamental right under Art. 19 of the
Constitution, the test would be to first determine if the right falls within the sweep and expanse
of any of the sub-clauses of Art. 19(1) and second, whether the impugned law imposes a
reasonable restriction falling within the scope of clauses 19(2) to 19(6) respectively.54
25. It is proffered before the Hon’ble Court that Exception II is violative of Art. 19 of the
Constitution as a wife has the right to express her consent regarding sexual matters in her
marriage and it imposes an unreasonable restriction on women.

Explicatingand throwing light upon the facts in question in the instant case, Laila’s fundamental
right to give her expression of consent is violated because her consent is not consensual as
according to the medical report her condition is not normal and doctors opined on the occurrence
of ‘vaginal penetration, genital injury and finding traces of semen on her clothes.’

B.2.1 MARRIED WOMEN HAVE THE FUNDAMENTAL RIGHT TO GIVE EXPLICIT CONSENT UNDER
ARTICLE 19(1)(A)

26. Art. 19(1)(a)55 guarantees to every citizen the fundamental right to freedom of speech and
expression.56 The phrase ‘expression’ under Art. 19(1)(a) has a broad connotation 57 and can be
51
Supra note 41.
52
Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490; See also State of Uttar Pradesh. v. Chhotey Lal,
(2011) 2 SCC 550.
53
Dharam Dutt v. Union of India, (2004) 1 SCC 712.
54
Shreya Singhal v. Union of India, (2015) 5 SCC 1. See also Mahesh Bhatt v. Union of India, 2009 SCC OnLine
Del 104; Anshul Aggarwal v. Union of India, 2018 SCC OnLine Del 8965.
55
INDIA CONST., art. 19, cl. 1, sub cl. a.
56
Id
57
Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597. See also State of West Bengal v. Subodh Gopal Bose,
A.I.R. 1954 S.C. 92; Devidas Ramachandra Tuljapurkar v. State of Maharashtra, (2015) 6 SCC 1; JAIN, supra note
3, at 1041.

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used when the person is entitled to decide upon his or her preferences. 58 The freedom of an
individual to engage in sexual activity is an expression of one's sexual preference. 59 The freedom
of an individual to decide on one's own consensual adult relationships, without the interference
of the State is a fundamental human right.60
27. Expounding on it, a woman, irrespective of her marital status has the right to decide upon
her preference of entering into a sexual activity with her husband. Further, the act of sexual
intercourse must be contemporaneous with the consent. 61 Thus, a woman has a fundamental right
to either give affirmative consent or refuse to give consent to engage into sexual activity with her
husband.
28. Henceforth, the right of married women to say no to sexual intercourse with her husband
within the marriage flowsfrom Art. 19(1)(a). In the case at hand, Laila was in an intoxicated state
and was unable to communicate properly and goes to sleep when Igor expressed his desire to
consummate their marriage. Here, explicit consent is necessary which was clearly absent.

B.2.2 EXCEPTION II IMPOSES AN UNREASONABLE RESTRICTION

29. In the case of State of Andhra Pradesh v. Mc Dowell,62 it was held that an enactment, if
challenged as violative of any of the fundamental rights under clause (a) of Art. 19(1), could be
struck down if the restriction imposed by it is not saved by clause (2) of Art.19.63
30. It is hereby submitted that first Exception II imposes a restriction on a women's right to
give consent to sexual intercourse within the marriage; and secondly, the restriction on the right
to free consent is unreasonable.

58
K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1; See also Shameek Sen, Right to Free Speech and
Censorship: A Jurisprudential Analysis, J. IND. L. INST. 175, 177 (2014).
59
Joseph Shine, supra note 57.; Suresh Kumar Koushal v. Naz Found., (2014) 1 SCC 1; BOSE &
BHATTACHARYYA, THE PHOBIC AND THE EROTIC: THE POLITICS OF SEXUALITIES IN
CONTEMPORARY INDIA 29 (2007).
60
Dudgeon v. U.K., [1982] 4 E.H.R.R. 149; See also Norris v. Ireland, [1988] 13 E.H.R.R. 186.
61
Jarnail Singh v. State of Raj., 1971 SCC OnLine Raj 76; See also Mahmood Farooqui v. State (Govt. of N.C.T. of
Delhi), 2017 SCC OnLine Del 6378; Shraddha Chaudhary, Reconceptualizing Rape in Law Reform, 13 SOC. LEG.
REV. 156, 165-167 (2017); Srijita Jana, Degrees of Consent in Rape: The Dichotomy Between “Yes” or “No”: Does
‘No’ Mean ‘Yes’, 2 S.C.C. CRIM. L. J. 16, 16-18 (2018).
62
State of Andhra Pradesh v. Mc. Dowell & Co., (1996) 3 SCC 709.
63
Benett Coleman & Co. v. Union of India, (1972) 2 SCC 788; See also Gopalan v. State of Madras, A.I.R. 1950
S.C. 27; BinoyViswam v. Union of India, (2017) 7 SCC 59; Rajbala v. State of Haryana, (2016) 2 SCC 445.

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B.2.2.1 EXCEPTION II IMPOSES A RESTRICTION ON A WOMEN'S RIGHT TO GIVE CONSENT TO

SEXUAL INTERCOURSE WITHIN THE MARRIAGE

31. The birth of the marital rape exemption 64 and misogynistic implied consent theory65 that
can be traced back to a whimsical statement made by an English jurist Sir Matthew Hale who
declared “but 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.” 66
32. The aforementioned argument can be explained in a two-fold manner. First, Exception II
allows a husband to exercise, with impunity his right of non-consensual or undesirable sexual
intercourse with his wife, even without her consent. 67 Further, a wife is deemed to have
irrevocably consented68 at the time of the marriage to have sexual intercourse with her husband at
his whim.69
33. Second, Exception II is based on the ‘implied consent theory’ which does not criminalize
non-consensual sexual intercourse within marriage and takes away the wife's right to give
consent or refuse consent to sexual intercourse protected under her freedom to speech and
expression under Art. 19(1)(a).
34. Marital rape exception is flawed for the reason that it nullifies the object of the main
provision and, hence, must fail70. The purported defence put forward for retaining marital rape
exception i.e., protection of conjugal rights in the institution of marriage would destroy the
object of the main provision. It must be "pertinent to the subject in respect of and the purposes
of which it was made."71
64
M. V. Sankaran, The Marital Rape Exemption in India, 20 J. IND. L. INST. 594, 606 (1978); Pallavi Arora,
Proposals to Reform the Law Pertaining to Sexual Offences in India, 3 J. IND. L. SOC. 233, 241 (2012).
65
Rebecca M. Ryan, The Sex Right: A Legal History of the Marital Rape Exemption, 20 LAW & SOC. INQUIRY
941, 1001 (1995); Lisa R. Eskow, The Ultimate Weapon?: Demythologizing Spousal Rape and Reconceptualizing
Its Prosecution, 48 STAN. L. REV. 677, 709 (1996).
66
Mathew Hale, History of The Pleas of The Crown, 1 Hale P.C. 629, 636. (1736); R., supra note 40.
67
Saurabh Mishra &Sarvesh Singh, Marital Rape-Myth, Reality and Need for Criminalization, 12 WEB. L. J. 22, 24-
27 (2003); Dr. G. K. Goswami Siddhartha, ‘No’ to Marital Rape Exemption in Indian Law: Stepping Stone to
Gender Justice, 7 J. LAW & TECH 77, 78 (2018); Dr. Nico & P. Swartz, Is a Husband Criminally Liable for Raping
his Wife? A Comparative Analysis, 3 INT'L J. ACAD. RESEARCH. AND REFLECTION 71, 72 (2015).
68
Masroor Ahmed v. State (NCT of Delhi), 2007 SCC OnLine Del 1357; See also Raveena Rao Kallakuru&
Pradyumna Soni, Criminalisation of Marital Rape in India: Understanding its Constitutional, Cultural and Legal
Impact, 11 N.U.J.S. L. REV. 121, 126 (2018).
69
M. Foucault, To Have and to Hold: The Marital Rape Exemption and the Fourteenth Amendment, 99 HARV. L.
REV. 1255, 1267-1269 (1986).
70
Director of Education (Secondary) &Anr. v. Pushpendra Kumar &Ors, (1998) 5 SCC 192
71
S. Sundaram Pillai v &Ors. v. V.R. Pattabiraman&Ors., (1985) 1 SCC

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B.2.2.2 THE RESTRICTION IMPOSED ON THE RIGHT TO FREE CONSENT IS UNREASONABLE

35. At the outset, any restriction imposed on the exercise of right under Art. 19(1)(a) 72 would
be unconstitutional 73, if it does not fall under the four corners of reasonable restriction under Art.
19(2).74 Constitutional morality is the soul of the Constitution, found in the Preamble 75 which
declares its ideals and aspirations, and is also found in Part III of the Constitution.76
36. Further, the term ‘morality’ under Art. 19(2) must be construed as ‘constitutional
morality’77 and not ‘sexual morality’78 or ‘public morality.79 Any archaic law that does not square
with constitutional morality is unreasonable and manifestly arbitrary.80
37. Moreover, the Exception II which provides a legal sanction to the husband to rape his
wife, within marriage was enforced to protect the Victorian notions of sexual morality 81which
considered a wife as a chattel of her husband, and subsequently the wife could not revoke her
consent to sexual intercourse.82 Hence, the restriction is inconsistent with the principles of free
consent and thus not covered by the grounds of morality under Art. 19(2).
38. In conclusion, it is humbly submitted before the Hon’ble Court that, Exception II which
imposes a restriction on the married women's right to say ‘no’ to the act of sexual intercourse
within marriage under Art. 19(1)(a) is per se unconstitutional because the aforementioned
restriction does not fall under any of the grounds of restriction under Art. 19(2). Drawing from
the argument, Laila has the right to say no sexual intercourse with her husband under Art. 19(1).

72
INDIA CONST., art. 19, cl. 1, sub cl. a
73
Cellular Operators Ass'n of India v. T.R.A.I., (2016) 7 SCC 703; See also N.K. Bajpai v. Union of India, (2012) 4
SCC 653; Ramji Lal Modi v. State of Uttar Pradesh, A.I.R. 1957 S.C. 620; D.J. DE, THE CONSTITUTION OF
INDIA 850 (3rd ed. 2008).
74
V.G. Row v. State of Madras, A.I.R. 1952 S.C. 196; O.K. Ghosh v. E.X. Joseph, A.I.R. 1963 S.C. 812; SINGHVI,
supra note 17, at 771.
75
INDIA CONST. pmbl
76
Navtej, supra note 4.; State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501; LatikaVashist, ReThinking
Criminalizable Harm in India: Constitutional Morality as a Restraint on Criminalization, 55 J. IND. L. INST. 77, 93
(2013); 3 CONSTITUTIONAL ASSEMBLY DEBATES 38 (New Delhi-Jaico Art India ed. 2003).
77
Indian Young Lawyers Ass'n v. State of Kerala, 2018 SCC OnLine SC 1690; Naz Found. v. Gov't of N.C.T. of
Delhi, 2009 SCC OnLine Del 1762.
78
Shreya, supra note 77.
79
Indian Young lawyers Supra note 77; CONSTITUTIONAL ASSEMBLY DEBATE, supra note 97, at 39.
80
Joseph Shine, supra note 57. Richard M. Nixon v. Adm'r of General Serv., 433 U.S. 425 (1977).
81
Elizabeth Pleck, Criminal Approaches to Family Violence 1640- 1980, 11 CRIM. & JUST. L.J. 50, 77 (1989);
Margot Finn, Women, Consumption and Coverture in England, 1760-1860, 39 HIST. J. 703, 722 (1996).
82
R v. Clarence, [1888] 22 Q.B.D. 23

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B.3 EXCEPTION II TO § 375 OF THE SINDHU DESH PENAL CODE VIOLATES

ARTICLE 21 OF THE CONSTITUTION

39. Art. 21 of the Indian Constitution guarantees the fundamental right to life and liberty. 83 It
is humbly submitted before the Hon’ble Court that Exception II violates Art. 21 and deprives
married women of their right to life and personal liberty becausefirst, Exception II violates the
right to privacy of married women, secondly, it violates the right to health and reproductive
choice of a married woman.
40. Gleaning upon the facts of the case at hand, Laila has the right to live her with dignity
and privacy, in a healthy manner. All these basic rights of a married woman, like Laila, are
stripped when her husband forces her to have sexual intercourse with him without her consent
and then is not even punished for his crime as currently, there are no remedies to the said act.

B.3.1 EXCEPTION II VIOLATES THE RIGHT TO PRIVACY OF MARRIED WOMEN

41. The right to privacy is a fundamental right,84 emanating from the right to life and personal
liberty guaranteed under Art. 21 of the Constitution.85 The fundamental right to privacy
guarantees an individual the right to retain the integrity of body, 86 which encompasses an
individual's inalienable right to preserve his/her private space 87 and be free from physical
interference.88 Further, it encompasses the right to self-determination which includes the right to
sexual self-determination89 and sexual autonomy that is the freedom to choose sexual activities.90

83
Francis Coralie Mullin v. Adm'r Union Territory of Delhi, (1981) 1 SCC 608; Maneka, supra note 80.
84
Puttaswamy, supra note 81; Kharak Singh v. State of Uttar Pradesh, (1964) 1 SCR 332; Gobind v. State of Madhya
Pradesh, (1975) 2 SCC 148; R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632.
85
Navtej, supra note 4; Sharda v. Dharampal, (2003) 4 SCC 493; P.U.C.L. v. Union of India, (1997) 1 SCC 301.
86
Puttaswamy, supra note 81; Pramati Educ. & Cultural Trust v. Union of India, (2014) 8 SCC 1; Marimuthu v.
Inspector of Police, 2016 SCC OnLine Mad 10175.
87
Common Cause v. Union of India, (2018) 5 SCC 1; See also State of Maharashtra v. Madhukar Narayan Mardikar,
(1999) 1 SCC 57; Prahlad v. State of Haryana, (2015) 8 SCC 688; Aarushi Dhasmana v. Union of India, (2013) 9
SCC 475.
88
Jonathan Herringjesee Wall, The nature and significance of the right to bodily integrity, 76 CAMBRIDGE L. J.
566, 588 (2017).
89
Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454; See also Shampa Singha v. State of West
Bengal, 2019 SCC OnLine Cal 153.
90
Joseph Shine, (2018) 2 SCC 189; See also Santhini v. Vijaya Venketesh, (2018) 1 SCC 1; Chairman of Ry. Bd. v.
Chandrima Das, (2000) 2 SCC 465.

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42. Expounding on it, a person can surrender his/her autonomy willfully to another
individual91 and their intimacy is a matter of their choice. 92 It is an individual's inalienable right
to choose their sexual partner and the autonomy to decide freely when and under what
circumstances, he/she wishes to engage in sexual activity.93
43. In the case of State of Karnataka v. Krishnappa94, the Hon'ble Supreme Court held that:
“Sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to
privacy and sanctity of a female.”

The Court further held that rape in itself is a serious blow to the self-esteem and dignity of the
victim and it degrades her, leaving behind a traumatic experience.
44. The heinous crime of rape, whether it occurs, within or outside marriage, 95 is an ultimate
invasion and violation of a women's bodily integrity and her sexual autonomy. 96 In the case at
hand, Laila was stripped away of her bodily autonomy and privacy by her husband.
45. Further, Exception II gives legal protection to the husband to subject his wife to non-
consensual sexual activity, without being punished under the criminal law. Thus, the husband by
the virtue of the aforementioned legal protection can subject his wife to any overtly sexual act,
without her choice, consent and free will. Hence, it can be concluded that Exception II violates
married women's fundamental right of bodily integrity and sexual autonomy which are protected
under Article 21 of the constitution.

91
Navtej, supra note 4; Sakshi v. Union of India, (2004) 5 SCC 518.
92
Navtej, supra note 4; Jonathan Herring, Rape & The Definiation of Consent, 26 N.L.S.I. REV. 62, 65-67 (2014);
K. Alexa Koeing, The Jurisprudence of Sexual Violence, 7 HUM. RTS. CENT. U. CALIF. 76, 81 (2011).
93
Joseph Shine, (2018) 2 SCC 189
94
State of Karnataka v. Krishnappa, (2000) 4 SCC 75
95
Mohd. Iqbal v. State of Jharkhand, (2013) 14 SCC 481; See also Sudhesh Jhaku v. K.C.J., 1996 SCC OnLine Del
397; Indu Devi v. State of Bihar, (2017) 14 SCC 525.
96
State of Madhya Pradesh v. Madan Lal, (2015) 7 SCC 681; X v. State of N.C.T. of Delhi, 2008 SCC OnLine Del
104; State of Punjab v. Gurmit Singh, (1996) 2 SCC 384.

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B.3.2 EXCEPTION II VIOLATES THE RIGHT TO HEALTH AND REPRODUCTIVE CHOICE OF A

MARRIED WOMAN
46. The right to health is a fundamental right under Art. 21.97 It includes one's inalienable
right to have freedom to protect their sexual and reproductive health and this freedom remains
vested in all persons including women irrespective of their marital status.98
47. In the case of C.E.S.C. Ltd. v. Subhash Chandra99, the Hon'ble Supreme Court held that
Right to Life also includes the Right to live a healthy and dignified life which is one of the most
important things to maintain the individuality of a citizen in the country. The exemption to
Section 375 is a violation to the right to the good health of a married woman because marital
rape causes emotional, psychological and physical problems to a woman and puts her into
depression.
48. The heinous crime of rape causes grave mental as well as physical injury to a woman 100
and Exception II, which does not criminalize marital rape clearly violates right to health of
married women, who are subjected to grave mental and physical injury by their husbands when
forced into non-consensual intercourse.
49. The right to make reproductive choice is a fundamental right guaranteed under Art. 21. 101
The right to reproductive choice preserves the freedom of married women to make decisions
primarily consisting of one's sexual and procreative nature. 102 Exception II to §. 375 violates
married women's right to reproductive choice because it violates the right of married women to
abstain from participating in sexual activity and violates the right to decisional autonomy of
married women.
50. Henceforth, concluding it is humbly submitted before the Hon’ble Court that Exception II
violates a married woman’s right to life and liberty, right to privacy and right to health and
reproductive choices, enshrined in Art. 21 of the Constitution.

97
Ashwani Kumar v. Union of India, (2019) 2 SCC 636; State of Punjab v. Mohinder Singh Chawla, (1997) 2 SCC
83; Nagar Nigam v. A.L. Faheem Meat Exports (Pvt.) Ltd., (2006) 13 SCC 382; Occupational Health & Safety
Ass'n v. Union of India, (2014) 3 SCC 547.
98
NimeshbhaiBharatbhai Desai v. State of Gujarat, 2018 SCC OnLineGuj 732.
99
C.E.S.C. Ltd. v. Subhash Chandra, (1992) 1 SCC 441
100
State of Madhya Pradesh v. Bablu Nath, (2009) 2 SCC 272.
101
Z v. State of Bihar, (2018) 11 SCC 572.
102
Suchitra Srivastava v. Chandigarh Admin., (2009) 9 SCC 1; See also High Court on its own Motion v. State of
Maharashtra, 2016 SCC OnLine Bom 8426.

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ISSUE 3 -- 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

51. It is humbly submitted before the Hon’ble Court that forceful intercourse by a man with
his wife against her will should be criminalized on the grounds that (C.1) Forceful intercourse by
husband with his wife can be criminalized as it challenges her dignity along with her
fundamental rights, and(C.2) Rape affects married and unmarried women similarly and marital
relationship should not be a valid defence in rape cases.
52. Explicating and throwing light upon the facts in question, though Laila was not in a
condition to give her consent explicitly, still Igor forced himself upon her. The status of being a
husband exempts Igor from any act of sexual assault against his wife. Every married woman
should have a safeguard against sexual assault similar to any unmarried woman.

C.1 FORCEFUL INTERCOURSE BY HUSBAND WITH HIS WIFE CAN BE CRIMINALIZED AS IT

CHALLENGES HER DIGNITY ALONG WITH HER FUNDAMENTAL RIGHTS.

53. Exception II to Section 375 is one of the most draconian and backward provisions of the
Penal law. It states that any sexual intercourse or sexual act between a husband and his wife,
with wife not being below 15 years of age is not rape as defined under Section 375 of the Indian
Penal Code.103This section excludes the application of this section on sexual intercourse or sexual
acts between a husband and wife. Thus, a wife under Indian law does not have recourse under
criminal law if her husband rapes her.
54. The provision is a blanket exemption granted to married men to commit rape upon their
wives, while this form of rape remains legally unrecognised. While the act mayamount to the
offence of cruelty against the wife under the Penal Code104, the husband cannot be made liable
for the more heinous crime of rape, no matter its true nature.
55. Conceding to the aforementioned arguments, it can conclude that once a female crosses
the age of 18 thereafter as a wife, she has no legal protection if she is sexually harassed by her
husband which is also a direct attack on her human rights. The legal age for marriage is 18 years
103
Penal Code, 1860, S. 375
104
Penal Code, 1860, S. 498-A

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old whereas the law will protect only those females from sexual abuse by their husband which
are below 18 years of age and beyond this age limit there exists no remedy for the women.

C.1.1 SECTION 375 IS BASED ON PRIMITIVE THINKING

56. According to Manusmiriti, a wife is not being considered ideal if she denies having sex
with her husband. 105
India being a patriarchal society has never thought of concepts like rape in
marriage and instead considered it as a private matter between spouses which should not be
communicated outside the walls of bedroom.
57. Historically, the spousal exemption goes back to the ancient notion of marriage as a
contract lasting a lifetime. Mathew Hales said, “The husband cannot be guilty of a rape
committed by himself upon his lawful wife, for by their mutual matrimonial consent, the wife
has given herself in kind unto her husband, which she cannot retract.”106
58. In Narayan's107 case, the Hon’ble SC, as late as in 1992, reiterated this principle by saying
that it is not possible to believe that when awoman has sex with her husband in the privacy of her
bedroom, she would suffer abrasions on her body and vaginal walls. This shows the thinking that
forced sex without violence will not be accepted, and more perplexingly violent sex in marriage
is not possible.

C.1.2 CONSENT IN A MARRIAGE MATTERS AS EQUALLY AS IT MATTERS IN UN-MARRIED CASES.

59. Social transformation should ensure that citizens' right to justice, liberty, equality and
fraternity is protected. The right of a wife to say “yes” to sexual intercourse includes the
corollary i.e. the right to say “no”.108
60. As per Explanation 2 to § 375 of the IPC, consent should be unambiguous, unequivocal
and voluntary. Therefore, consent qua a prior sexual act will not extend to future occasions.
Consent is foreground in IPC in provisions concerning sexual intercourse. The judicial opinion
in India has moved perceptibly in the direction of recognizing the autonomy and sexual agency
of an individual including that of a married woman.
105
Sakshi Kanodia &Ranjabati Ray, Why Penalize Marital Rape, IOSR-JHSS Vol. 21, Issue 9, (10 September 2016) pp.
49-55.
106
Gelles Richard. Family Violence, 2nd Edition, (New Delhi: Sage 1987). 137
107
B. Lakshmipathi Naidu v. Distt. Educational Officer, (1992) 4 SCC 8: AIR 1992 SC 2003
108
S. Sushma v. Commissioner of Police, 2021 SCC OnLine Mad 2096

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C.1.2.1 Married women are entitled to Right to privacy in sexual realtionships

61. In the case of State of Maharashtra v. Madhkar Narayan109the SC has held that every
woman is entitled to her sexual privacy and it is not open to for any and every person to violate
her privacy as and whenever he wished.
62. In the case of Sree Kumar vs. Pearly Karun110, the Kerala High Court observed that
because the wife was not living separately from her husband under a decree of separation or
under any custom or usage; even if she is subject to sexual intercourse by her husband against
her will and without her consent; offence under Section 376A111, IPC will not be attracted. In this
case, there was an ongoing dispute on divorce between the parties. Thereafter, a settlement was
reached between the husband and wife and parties agreed to continue to reside together. The wife
stayed with the husband for two days during which she alleged that she was subject to sexual
intercourse by her husband against her will and consent. Hence the husband was held not guilty
of raping his wife though he was de facto guilty of having done so.
63. In Saretha vs T. Venkata Subbaih112, the Hon’ble Court held that:
“There can be no doubt that a decree of restitution of conjugal rights thus enforced offends the
inviolability of the body and mind subjected to the decree and offends the integrity of such a
person and invades the marital privacy and domestic intimacies of a person.”
If State enforced sexual intercourse between husband and wife is a violation of the right to
privacy, similarly a woman’s right to privacy will be equally violated in case of non-consensual
sexual intercourse with her husband. Hitherto, in the instant case, it is contended that the sexual
intercourse by Igor, without the consent of his wife rips her of her bodily autonomy and is clearly
rape.

C.2 RAPE AFFECTS MARRIED AND UNMARRIED WOMEN SIMILARLYAND MARITAL RELATIONSHIP

SHOULD NOT BE A VALID DEFENCE IN RAPE CASES.113

64. Expounding on the aforementioned arguments, the most recent data (2015-2016) of the
National Family Health Survey (NFHS) reveals that 83% of married women falling between the

109
State of Maharashtra v. Madhkar Narayan, AIR 1991 SC 207
110
Sree Kumar vs. Pearly Karun, II (1999) DMC 174
111

112
Saretha vs T. Venkata Subbaih, AIR 1983 AP 356
113
Justice J.S. Verma Committee, Report of Committee on Amendments to Criminal Law (January 23, 2013).

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age bracket 15 - 49 years were victims of sexual violence committed by their “current husbands”
while 9% were subjected to violence by their “former husbands”. These women need safety and
assurance in the form of laws, so that women like Laila do not have to face non-consensual
intercourse at the hands of their husbands.114
65. Furthermore, the analysis of NFHS data reveals that nearly 99.1% of sexual violence
cases are not reported and in most such instances, the perpetrator is the husband of the victim.
This data also reveals that a woman is 17 times more likely to face sexual violence from her
husband than from others. Besides this, even after cases involving marital rape and assault are
excluded, the data reveals that only 15% of sexual offences committed by persons other than the
current husband of the victim are reported to the police.115
66. In CR v. United Kingdom116, the European Commission of Human Rights also endorsed
the view that “a rapist remains a rapist regardless of his relationship with the victim.” Marital
rape can be stated as one of the oldest crimes in society but because of conceptualization of the
female body as property leaves no scope, even today, for the recognition of rape within marriage.

C.2.1 IT IS THE DUTY OF THE STATE TO PROTECT BODILY AUTONOMY OF ALL WOMEN,

IRRESPECTIVE OF THEIR MARITAL STATUS.

67. In the case of NimeshbhaiBharatbhai Desai v. State of Gujarat 117, the Hon’ble Court
observed that the law must uphold the bodily autonomy of all women, irrespective of their
marital status. Additionally, it also held that:
“non-consensual act of marital rape violates the trust and confidence within a marriage and the
prevalence of marital rape in India is what has damaged the institution of marriage”.
The Court, while hearing the case observed that marriage does not make the wife a chattel of the
husband and it does not give the right to violate the dignity, autonomy and privacy of the woman
by coercing her into a sexual act without her free consent.
Correlating the facts of the instant case with the aforesaid obiter, Laila’s bodily autonomy and
free consent should be protected and Igor should be treated as any other rapist.

114

115

116
CR v. United Kingdom, ECHR, Ser. A.No. 335-C (1995).
117
NimeshbhaiBharatbhai Desai v. State of Gujarat,2018 SCC OnLineGuj 732

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68. Further, in the case of Bodhisattwa Gautam v. Subhra Chakraborty,118 the Hon’ble Court
while commenting on marital rape,said that:
“Thiscruel act destroys the entire psychology of a woman and pushes her into deep emotional
crises”.
Marriage determines the freedom of sex, but that does not mean it imposes a legal duty to submit
to sex. Similarly, inSareetha's case 119
, it was held that ‘constitutional law recognises the
principle that human relations must be based on the free volition of individuals
69. In addition, Exception II of § 375 violates Art. 15 as it treats married women as chattels
of their husbands by assuming consent on their behalf as soon as marital relationship is entered
into and goes further by denying them the option of seeking justice within the appropriate
remedy. It was noted in Joseph Shine case120that control over a woman's sexual agency is a key
patriarchal assumption. The provision proceeds on the assumption that a married woman has no
sexual agency of her own and denudes her of the ability to make sexual choices within her
marriage.

C.2.2 MARITAL RAPE EXCEPTION OF SECTION 375 IS HIGHLY UNREASONABLE

70. It is proffered before the Hon’ble Court that, in the case ofDwarka Prasad Laxmi Narain
v. State of UP,121it was observed that if any legislation, arbitrarily or excessively, invades the
right then it cannot be held reasonable. Gleaning upon this argument, it can be stated that the
present Exception II of § 375 IPC clearly invades the right of dignity and bodily autonomy of
married women. The exception carved out creates an unnecessary and artificial distinction
between a married and an unmarried woman. The discrimination against married women is
absolutely patent and cannot be accepted as constitutional.
71. It is hereby humbly submitted before the Hon’ble Court that forceful intercourse by a
man with his wife can be criminalized as rape under § 375 IPC. Marital rape becomes even more
heinous as an offence because there are possibilities of repeated assaults due to the proximity
between the victim and the rapist and the nature of relationship shared by them. Rape, when
committed within the confines of a marital household, should not be unconstitutionally
immunised simply for the reason that the perpetrator is the husband of the victim.
118
Bodhisattwa Gautam v. Subhra Chakraborty, AIR 1996 SC 922
119
T. Sareetha v. T. Venkata Subbaiah, AIR 1983 AP 356
120
Joseph Shine v. Union of India, (2018) 2 SCC 189
121
Dwarka Prasad Laxmi Narain v. State of U.P, AIR 1954 SC 224

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ISSUE 4- THAT THE OFFENCE OF RAPE UNDER SECTION 375 OF THE SINDHU
DESH PENAL CODE IS REQUIRED TO BE MADE GENDER NEUTRAL

72. It is humbly submitted before the Hon’ble SC that the offence of rape under § 375 of the
Sindhu Desh Penal Code is required to be made gender neutral because (D.1) Every gender in
the society deserves equal protection under Article 14, 15(1) and 21, (D.2)The underlying legal
approach to tackle sexual violence against women has been along the lines of patriarchy,(D.3)
Making Section 375 gender-neutral would go a long way in protecting the rights of the LGBTQ
community in the country.

D.1 EVERY GENDER IN THE SOCIETY DESERVES EQUAL PROTECTION UNDER ARTICLE 14, 15
AND 21.

73. It is humbly submitted before the Hon’ble Court that every gender in the society deserves
protection under article 14, 15 and 21 and the current provision is not providing every gender the
equality it deserves, and it requires to be gender neutral on the ground that the definition of rape
under § 375 is non-inclusive and based on gender. The underlying legal approach to tackle
sexual violence against women has been along the lines of paternalism.

D.1.1 THE DEFINITION OF RAPE UNDER § 375 IS NON-INCLUSIVE AND BASED ON GENDER.
74. § 375 defines rape and categorises the different acts that constitute rape. The provision
adopts a gendered approach. It brands males as perpetrators by using the phrase, ‘a man is said to
commit rape’ and also restricts the understanding of victim to only women.
D.1.1.1 THE PROVISION IS NOT IN ACCORDANCE WITH ART14
75. The Art. 14 of the Constitution of India reads as under:
“The State shall not deny to any person equality before the law or the equal protection of the
laws within the territory of India.”122
One of the strongest pillars of our Constitution is the idea of Equality. Enshrined in Article 14, it
binds the State to not deny any person, equality before the law 123.The Hon’ble SC has

122

123
INDIA CONST. art. 14

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recognised in Satyawati Sharma 124that a legislation which might have been reasonable at the

time of its enactment could become unreasonable with the passage of time and it may rightly be
struck down if it is found that it violates the doctrine of equality.125
76. Article 13 read with Article 226 of the Constitution 126 empowers the High Courts to strike
down laws that are inconsistent with or in derogation of fundamental rights. The role of the
constitutional High Courts becomes particularly significant as they are obliged to ensure the
retention of gender equality and to provide mechanisms to enable women to redress their
grievances related to gender-based violence.127

D.1.1.2 THE PROVISION IS NOT IN ACCORDANCE WITH ARTICLE 15

77. Art. 15(1) of the Constitution of India reads as under:

“The State shall not discriminate against any citizen on grounds only of religion, race, caste,
sex, place of birth or any of them.”128
Exception II also violates Article 15(1) of the Constitution because its classification is premised
upon a stereotypical and patriarchal understanding of married woman’s role in her marriage, i.e.
she is considered to be amalgamated and controlled by her husband in all aspects of her life
including her sexual agency and her identity as an individual in her own right is suppressed.

D.1.1.3 THE PROVISION IS NOT ACCORDANCE WITH ART 21

78. Art. 21 of the Constitution of India reads as under:
“No person shall be deprived of his life or personal liberty except according to procedure
established by law.”129
Art. 21 of the Indian Constitution guarantees the fundamental right to life and liberty. 130 It is
humbly submitted before the Hon’ble Court that Exception II violates Art. 21 and deprives
married women of their right to life and personal liberty because first, Exception II violates the

124
Satyawati Sharma v. Union of India, (2008) 5 SCC 287
125
Id.
126
INDIA CONST. art. 13, art. 226
127
Aparna Bhat v. State of Madhya Pradesh, (2021) SCC OnLine SC 230
128
INDIA CONST. art. 15 cl. 1
129
INDIA CONST. art. 21
130
Francis Coralie Mullin v. Adm'r Union Territory of Delhi, (1981) 1 SCC 608; Maneka, supra note 80.

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right to privacy of married women, secondly, it violates the right to health and reproductive
choice of a married woman.

D.2 THE UNDERLYING LEGAL APPROACH TO TACKLE SEXUAL VIOLENCE AGAINST WOMEN HAS
BEEN ALONG THE LINES OF PATRIARCHY.

79. The underlying legal approach to tackle sexual violence against women has been along
the lines of paternalism and protection, which has led to a one-dimensional image of a woman as
a victim131. Since law and society are reflective of each other, a one-dimensional victimised
image of woman portrays women as weak and ignores the concept of female criminality.
80. This renders the gender construct of a perpetrator and a victim skewed and narrow. The
Constitution formalises this approach to some extent by allowing the framing of special
provisions132 for the ‘protection of women and children’ which runs as an exception to Article 15
of the Indian Constitution. 133 While the special legal provisions in favour of women may be
necessary and desirable in some cases, the clubbing of women and children in the contemporary
context may further enforce thebelief that women are necessarily vulnerable and weak.
81. The counsels, on behalf of the Respondents, argue that gender neutrality is a powerful
tool to challenge historically embedded stereotypes. Notably, the proposition
for gender neutrality with respect to Indian laws, has been made and but has been ultimately
rejected without much discussion in a number of separate instances, including the 172nd Report
of Law Commission,134 the Criminal Law Ordinance of 2013,135 and the 2018 Supreme Court
petition filed to demand gender-neutral rape laws.

D.2.1 GENDER-NEUTRAL RAPE LAWS ARE NOT A THREAT TO THE EXCLUSIVE

ACKNOWLEDGEMENT OF VIOLENCE AGAINST WOMEN.

82. While women continue to suffer from historical prejudice, men are pressured to act
within the strict constraints of aggressive masculinity which disallows them from showing any
kind of vulnerability, and non-binary persons endure near-complete legal exclusion, social
131
Kapur (n 21) 342.
132
The Constitution of India, art 15.
133
The Constitution of India, art 14.
134
Law Commission of India, ‘Review of Rape Laws’, Report No 172 (March 2000) 36.
135
The Criminal Law (Amendment) Ordinance, 2013.

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isolation and economic deprivation. Even if one was to operate on the argument that the nature
of violence faced by women is unique given the patriarchal context, the opponents of gender
neutrality who claim that neutrality leads to dilution, have failed to provide a cohesive
explanation as to ‘how’ this dilution happens. It is difficult to accept that categorisation of rape
of all persons (irrespective of sex and gender identity) under the same offence will itself dilute
the severity of the act for any particular group.
83. Expounding on it, Gender neutrality in law is reflective of the changes in the
understanding of the concept of sexual and domestic violence, as an invasion of privacy, dignity,
and autonomy, irrespective of the gender involved. The law cannot be limited by the “boundaries
of aggressive male sexuality” and must strive to accommodate abuse in every form. Feminist
engagement is crucial for moving towards achieving the goal of sexual equality. The argument
that there is a greater incidence of violence against women does not discharge the burden of
ensuring legal recourse to all victims of violence.
84. Moreover, Gender neutral rape law can be said to be in accordance with Article 14 of the
Constitution which guarantees equality before the law and equal protection of the law. Gender
neutral rape laws aims at including or providing legal protection to all the genders, not only
women. The concept of gender neutrality is not to give an upper-hand to the perpetrator or give
any less protection to women but only to increase the ambit of the rape laws and thereby extend
fortification to all the genders.

D.2.2 MEN ALSO FACE RAPE AND SEXUAL ASSAULT AND HAVE THE RIGHT TO REMEDY UNDER
THE LAW
85. The male section of the society is an integral part of it and deserves legal remedy on all
matters as every other section of the society. It is a known fact that men also face sexual abuse
and rape today, but the Hon’ble Court, in the case of ArunaParmod Shah v. Union of India,
observed:
“We do not rule out the possibility of a man becoming the victim of domestic violence, but such
cases would be few and far between, thus, not requiring or justifying the protection of
Parliament.”136
86. Building on this argument, the social gender construct appears to be a vicious circle. The
masculinity of men does not permit them to appear fragile and victimised. This creates a very
136
ArunaParmod Shah v. Union of India, 2008 SCC OnLine Del 457

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strong social obstruction in reporting violence resulting in a lack of structural remedies to

address their victimisation.137 The incidences of violence against men, albeit rare, have been
acknowledged in a few cases.138 

D.3 MAKING SECTION 375 GENDER- NEUTRAL WOULD GO A LONG WAY IN PROTECTING THE
RIGHTS OF THE LGBTQ COMMUNITY

87. In NALSA v. Union of India139, the judiciary finally recognised the transgenders and gave
them the position of the “third gender”. It is ironical, as the country which is progressive enough
to recognise the third gender is still regressive enough to not have gender neutral criminal laws
relating to sexual offences.
88. Article 14provides for equality before law. No person shall be discriminated on the basis
of sex. Nonetheless, despite having the legal recognition as well as constitutional equality, the
treatment of transgenders in the society as well as legally, due to the lack of laws, indicates a
violation of their fundamental rights under Articles 14, 15 and 21 due to the lack of gender
neutrality in laws relating to sexual offences.
89. The Criminal Law Amendment Act of 2013 brought major changes in the law related to
sexual offences and filled several loopholes. However, it is important to note that the
amendment, inter-alia, rejected two important proposals made by the Justice Verma
Committee140 which was set up in the aftermath of the 2016 Delhi Rape case141, namely, the
criminalisation of marital rape and the introduction of gender neutrality in the law, considering
that ‘the possibility of sexual assault of men, homosexuals, transgender and transsexual rape is a
reality’.142
90. While the society has come a long way in accepting the same-sex relationships, there still
lies a lack of proper remedy for sexual harassment and rape for the LGBTQ community.
Nonetheless, there did exist legal safeguards for victims of sexual offences that did not fall under

137
Bhagwanti v. LaxmandasPanjwani, 1999 SCC OnLine MP 39, AIR 2000 MP 190; Vijay Kumar Jain v. Sunita Vijay
Kumar Jain, 2000 SCC OnLine MP 230, (2001) 1 MP LJ 412; Vidya Ramakrishnaiah v. RN Vikram, 2004 SCC OnLine
Kar 360, (2005) 3 Kant LJ 347.
138
Anupama Ashok Aher v. Ashok Bajirao Aher, 2014 SCC OnLine Bom 792, (2015) 5 Bom CR 302.
139
NALSA v. Union of India
140
JS VERMA COMM.
141

142
Justice JS Verma Committee, Report of the Committee on Amendments to Criminal Law (January 23, 2013) 416.

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the definition of “rape” under Section 375. Such offences could be filed under Section 377 that
defines “unnatural sexual offences”:
“Whoever voluntarily has carnal intercourse against the order of nature with any man, woman
or animal, shall be punished with imprisonment for life, or with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine.”143

91. The issue of gender neutrality of sexual offences first arose in Sudesh Jhaku case in
1996wherein the Hon’ble Delhi High Court insisted on the legislature to articulate gender neutral
criminal law. As a consequence of this judgment, the Hon’ble Supreme Court formulated issues
that the Law Commission of India had to look into. This further led to the 172 ndLaw Commission
Report.

D.3.1 THE JUSTICE VERMA COMMITTEE

92. The Committee recommended retention of the law on rape and in addition making sexual
assault a gender-neutral offence, unlike the 172nd Report, by using term “person” instead of
“woman” for the purposes of defining victim of rape and sexual assault and retaining the term
“man” for the perpetrator and thereby bringing within its scope the transgender community.144
93. While this seemed like a huge victory for the trans community, it was only short-lived as
although the Criminal Law (Amendment) Ordinance, 2013 took a very gender-neutral approach
to rape law, the Criminal Law (Amendment) Act, 2013only implemented the recommendations
made to make the rape laws more stringent by widening the definition of “rape”. It did not
consider the aspect of gender neutrality and retained the gender-specific definitions of these
sexual offences.
94. The Counsels, on behalf of the Respondents,humbly submit and appeal before the
Hon’ble Court for the true realisation of equality and justice for all, irrespective of their gender
or marital status, to address the changing needs of the society which our transforming
Constitution provides for and discriminating against an individual on the basis of sexual
orientation is deeply offensive to the dignity and self-worth of the individual. 145The purpose
behind gender neutrality of sexual offences under the Penal Code is not to desexualise the
143
S. 377, Penal Code, 1860.
144
Flavia Agnes, Law, Ideology and Female Sexuality: Gender Neutrality in Rape Law, 37 EPW, 844, 846 (2002),
https://www.jstor.org/stable/4411809?seq=1
145
K.S. Puttaswamy v. Union of India, (2018) 1 SCC 809, para 126.

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offence but to incorporate a holistic understanding of the nature of the offence beyond the lens of
gender.146

146
Harshad Pathak, Beyond the Binary: Rethinking Gender Neutrality in Indian Rape Law, Cambridge University
Press, <https://www.cambridge.org/core/journals/asian-journal- of-comparative-law/article/beyond-the-binary-
rethinking-gender-neutrality-in-indian-rape- law/9BC983FB009B7BBDEB78CED0BC5144C0>.

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-PRAYER-

IX