Marital Rape and the Constitutionality of Exception II to Section 375 IPC, Exams of Law

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RGNUL NATIONAL MOOT COURT

COMPETITION,

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-

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-Table of contents- -Appellant- TABLE OF CONTENTS

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-Table of content- -appellant-

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• Index of abbreviations- - Appellant- **INDEX OF ABBREVIATIONS

1. Sec.** SECTION 2. & AND 3. Ads ADVERTISEMENT 4. AIR ALL INDIA REPORTER 5. Annex. ANNEXURE 6. Anr. ANOTHER 7. Art. ARTICLE 8. Cl. CLAUSE 9. Cr. CRIMINAL 10. CrL.J CRIMINAL LAW JOURNAL 11. CrPc CODE OF CRIMINAL PROCEDURE, 12. CS CHARGE-SHEET 13. DW DEFENCE WITNESS 1 4. FIR FIRST INFORMATION REPORT 15. HC HIGH COURT 16 Hon’ble HONORABLE 17. i.e THAT IS 18. IPC INDIAN PENAL CODE, 19. No. NUMBER 20. Ors. OTHER 21. P. PAGE 22. PS POLICE STATION 23. PW PROSECUTION WITNESS 24. r/w READ WITH

25. SC SUPREME COURT

26. SCC SUPREME COURT CASES

27. Supp. SUPPLEMENTARY 28. DV Act DOMESTIC ACT, 8 TH^ RGNUL NATIONAL MOOT COURT COMPETITION,

• Index of abbreviations- -Appellant- 29. Eds. EDITION 30. @ ALIAS 31. U/S UNDER SECTION 32. UOI UNION OF INDIA 33. V./Vs VERSUS 34. Viz. NAMELY 35. w.r.t WITH RESPECT TO

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• Index of authorities- -Appellant- INDEX OF AUTHORITIES

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• Index of authorities- -Appellant-

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• Index of authorities- -Appellant-

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• Index of authorities- -Appellant-

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• Index of authorities- -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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• 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. 8 TH^ RGNUL NATIONAL MOOT COURT COMPETITION,

• 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 SECTION 375 IPC IS CONSTITUTIONAL VALID OR NOT?**

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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. [11] WHETHER EXCEPTION II OF SECTION 375 IPC IS CONSTITUTIONAL VALID OR NOT? The PIL filed by the petitioner is maintainable and challenges the Constitutional validity of Section- 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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• Summary of Arguements- - Appellant-

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• Argument Advanced- - Appellant- 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 Madras as follows. 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 Bihar 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 SP Gupta v. Union of India

In this case 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 This petition is filed under Article 32 of the Constitution. The PIL by the Appellant- confederation of ex- serviceman Associations for an appropriate writ 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. 8 TH^ RGNUL NATIONAL MOOT COURT COMPETITION,

• Argument Advanced- - Appellant- In the case Subhash Kumar v. State of Bihar 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 that 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. In the case Vishaka v. State of Rajasthan 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 filled 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. [II] WHETHER EXCEPTION II OF SECTION 375 IPC IS CONSTITUTIONAL VALID 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 fells prey to the acts of marital rape. In spite 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. R^1 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. UK^2 by European Courts of Human Rights. In case of People v. MD^3 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. 8 TH^ RGNUL NATIONAL MOOT COURT COMPETITION,

• Argument Advanced- - Appellant- Infringement of Article- 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. In the case of Indira Nehru Gandhi v. Raj Narain^4 , Court held that Article-14 is the basic feature of the Indian Constitution and hence it cannot be destroyed even by an amendment of the Constitution under Article-368 of the constitution. The essence of Article-14 is laid down in the famous case Lindsley v. Natural Carbonic Gas Co^5. , where the court has stated that the principle of equality before law applies when equal law applies to all in the same circumstances. 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 India^6 , 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 Sarkar^7 , 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 1 2 3 (^4) Indira Gandhi Nehru v. Raj Narain, A.I.R. 1975 S.C. 2299 5 (^6) Rubinder Singh v. Union of India, A.I.R. 1983 S.C. 65 (^7) State of West Bengal v. Anwar Ali Sarkar, A.I.R. 1952 S.C.

constitution under Article-14 are violative for women because of the discrimination made by the state. In the case of Vishaka v. State of Rajasthan^8 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- provides the right to human dignity and life. In the landmark case of Maneka Gandhi v. Union of India^9 Court held that Right to live its not merely confined to physical existence but it includes within its pace the right to live with human dignity. 8 TH^ RGNUL NATIONAL MOOT COURT COMPETITION,

• Argument Advanced- - Appellant- Every women who is the citizen of India has this right. In the famous case of Francis Coraille Muin v. Union Territory of Delhi^10 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 Das^11 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. 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 Chakraborty^12 court held that rape is to a lesser degree a sexual offense than a demonstration of hostility gone for corrupting and mortifying the (^8) Vishaka v. State of Rajasthan, A.I.R. 1997 S.C. (^9) Maenka Gandhi v. Union of India, A.I.R. 1978 S.C. (^10) Francis Coraille Muin v. Union Territory of Delhi, A.I.R. 1981 S.C. (^11) The chairman railway, railway board v. chandrima das, A.I.R. 2000 2 S.C.C.465 (India) (^12) Bodhisattwa Gautum v. Shubhra Chakraborty, A.I.R. 1996 S.C. 922 (India)

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.N^13 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 Administration^14 , 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 Narayan^15 , 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 Rajasthan^16 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. 8 TH^ RGNUL NATIONAL MOOT COURT COMPETITION,

• Argument Advanced- - Appellant- 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. (^13) R. Rajgopalan v. State of T.N, A.I.R. 1994 6 S.C.C.632 (India) (^14) Suchitra v. Chandigarh Administration, A.I.R. 2010 S.C.235(India) (^15) State of Maharashtra v. Madhkar Narayan, (^16) Vishaka v. State of Rajasthan, A.I.R. 1997 S.C.

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• Argument Advanced- - Appellant-

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• Argument Advanced- - Appellant-

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• Argument Advanced- - Appellant-