Marital Rape and the Indian Legal System: Equality and Marriage, Assignments of Criminal Law

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TEAM CODE: TC-71R

8 th^ RGNUL NATIONAL MOOT COURT COMPETITION, 2019

BEFORE

THE HON’BLE SUPREME COURT OF INDIA

(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA, 1950)

IN THE MATTER OF

SOCIETY FOR WOMEN’S RIGHT’S ............................................................PETITIONER

VERSUS

UNION OF INDIA ...........................................................................................RESPONDENT

BEFORE SUBMISSION TO

THE HONOURABLE CHIEF JUSTICE AND HIS COMPANION JUSTICE OF THE

HONOURABLE SUPREME COURT OF INDIA

WRITTEN SUBMISSION ON BEHALF OF RESPONDENT

TABLE OF CONTENTS

S. NO. PARTICULARS PAGE NO.

1. LIST OF ABBREVIATIONS 4

2. INDEX OF AUTHORITIES 5

3. STATEMENT OF JURISDICTION 11

4. STATEMENT OF FACTS 12

5. ISSUES RAISED 13

6. SUMMARY OF ARGUMENTS 14

7. ARGUMENTS ADVANCED

ISSUE I: THAT SEXUAL INTERCOURSE WITHOUT THE

WIFE’S CONSENT IS RAPE U/S 375 OF IPC OR NOT AND

WHETHER IT IS VIOLATIVE OF ARTICLE 14, OF THE

CONSTITUTION?

16-

ISSUE II: THAT THERE ARE MANY OTHER ALTERNATIVES 22

UNDER WHICH THE WOMEN CAN COMPLAIN AND GET

REMEDIES

2 | P a g e

ISSUE III : THAT THE PERSONAL LIBERTY OF A WIFE

UNDER ART.21 IS NOT ABSOLUTE AND IS SUBJECT TO

RESTRICTIONS IMPOSED BY THE MATRIMONIAL PRIVACY

ISSUE IV : THAT THE DENIAL OF SEX TO HUSBAND LEADS

TO CRUELTY……

8. PRAYER 35

3 | P a g e

LIST OF ABBREVIATIONS

S.NO ABBREVIATIONS FULL FORM

**1. ¶ Paragraph

2. § Section
3. & And
4. AIR All India Reporter
5. Art. Article
6. Anr. Another
7. CrPC Code of Criminal Procedure
8. HC High Court
9. Hon’ble Honourable
10. IPC Indian Penal Code
11. NGO Non-Governmental Organization
12. Ors. Others
13. SC Supreme Court
14. SCR Supreme Court Reporter
15. U.O.I Union Of India
16. U.S United States
17. v. Versus
18. CrLJ Criminal Law Journal INDEX OF AUTHORITIES** 4 | P a g e

2. Bhartiben Bipinbhai Tamboli v. State of Gujarat, Special Criminal Application (DV)

13. Parveen Mehta Versus Inderjit Mehta reported in 2002 (2) H.L.R. 513 (SC) (India).

40. Parveen Mehta Versus Inderjit Mehta reported in 2002 (2) H.L.R. 513 (SC) (India).

67. Parveen Mehta Versus Inderjit Mehta reported in 2002 (2) H.L.R. 513 (SC) (India).

• 1. XB S Joshi v. State of Haryana, (2003) Cr LJ 2028 (SC) (India).;...........................
  • No.5672 of 2016. (Gujarat HC). (India)...................................................................
• 3. Chetan Dass v. Kamla Devi reported in (2001) 4 S.C.C. 250 (India).......................
• 4. Deepak Bajaj v. State, (2008) 16 S.C.C. 14; (India).................................................
• 5. Harvender Kaur v. Harmander Singh Choudhary, A.I.R. 1984 Del. 66. (India).......
• 6. K Prema S Rao v. YadlaSrinivasa Rao (2003) 1 S.C.C. 217 (India)........................
• 7. K.B. Nagur, MD (Ayurveda) v. UOI, A.I.R. 2012 S.C. 1774. (India)......................
• 8. K.K.Baskaran v. State of T.N, A.I.R. 2011 S.C. 1485 (India).;................................
• 9. Mehmood Nayyar Azam v. State of Chattisgarh, A.I.R. 2012 S.C. 2573 (India).....
• 10. Mr.X v. Hospital Z, (1998) 8 S.C.C. 296. (India).....................................................
• 11. Om Prakash Chautala v. Kanwar Bhan, A.I.R. 2014 S.C. 1220 (India)...................
• 12. Parveen Mehta v. Inderjit Mehta reported in (2002) 5 SCC 706 (India)..................
• 14. R. Rajagopal v. State of Tamil Nadu, A.I.R. 1995 S.C. 264 (India).........................
• 15. Rita Nijhawan vs. Balkishan Nijhawan A.I.R. 1973 Delhi 200 (India)....................
• 16. Rita V. Balkrishan Nijhawan, A.I.R. 1973 Del 200 (India)......................................
• 17. Samar Ghosh vs Jaya Ghosh (2007) 4 S.C.C. 511 (India)........................................
• 18. Samayne’s, (1604) 5 Co Rep 91a.............................................................................
• 19. Shankuntla Kumari vs. Om Prakash Ghai (AIR 1983 Delhi 53) (India)..................
• 20. Sheldon Versus Sheldon {(1966) 2 All England Reported 257}..............................
• 21. Sirajmohmedkhan Janmohamadkhan v. Haizunnisa Yasinkhan & Anr. (1981)
  • S.C.C. 250 (India).....................................................................................................
• 22. State of Bihar v. Lal Krishna Advani, A.I.R. 2003 S.C. 3357. (India).....................
• 23. State of M.P. v. RakeshKohli, A.I.R. 2012 S.C 2351 (India).;..................................
  • (India)....................................................................................................................... 24. State of Maharashtra v. Public Concern for Government Trust, (2007) 3 S.C.C. 587.
• 25. State of W.B v. Kesoram Industries, A.I.R. 2005 S.C. 1646 (India).........................
• 26. Subramanian Swamy v. Director, C.B.I , A.I.R. 2014 S.C. 2140 (India).................
• 27. Susarla Subrahmanya Sastry vs. Padmakshi II (2005) D.M.C. 707 (DB) (India)...
• 28. XB S Joshi v. State of Haryana, (2003) Cr LJ 2028 (SC) (India).;...........................
  • No.5672 of 2016. (Gujarat HC). (India)................................................................... 29. Bhartiben Bipinbhai Tamboli v. State of Gujarat, Special Criminal Application (DV)
• 30. Chetan Dass v. Kamla Devi reported in (2001) 4 S.C.C. 250 (India).......................
• 31. Deepak Bajaj v. State, (2008) 16 S.C.C. 14; (India).................................................
• 32. Harvender Kaur v. Harmander Singh Choudhary, A.I.R. 1984 Del. 66. (India).......
• 33. K Prema S Rao v. YadlaSrinivasa Rao (2003) 1 S.C.C. 217 (India)........................
• 34. K.B. Nagur, MD (Ayurveda) v. UOI, A.I.R. 2012 S.C. 1774. (India)......................
• 35. K.K.Baskaran v. State of T.N, A.I.R. 2011 S.C. 1485 (India).;................................
• 36. Mehmood Nayyar Azam v. State of Chattisgarh, A.I.R. 2012 S.C. 2573 (India).....
• 37. Mr.X v. Hospital Z, (1998) 8 S.C.C. 296. (India).....................................................
• 38. Om Prakash Chautala v. Kanwar Bhan, A.I.R. 2014 S.C. 1220 (India)...................
• 39. Parveen Mehta v. Inderjit Mehta reported in (2002) 5 SCC 706 (India)..................
• 41. R. Rajagopal v. State of Tamil Nadu, A.I.R. 1995 S.C. 264 (India).........................
• 42. Rita Nijhawan vs. Balkishan Nijhawan A.I.R. 1973 Delhi 200 (India)....................
• 43. Rita V. Balkrishan Nijhawan, A.I.R. 1973 Del 200 (India)......................................
• 44. Samar Ghosh vs Jaya Ghosh (2007) 4 S.C.C. 511 (India)........................................
• 45. Samayne’s, (1604) 5 Co Rep 91a.............................................................................
• 46. Shankuntla Kumari vs. Om Prakash Ghai (AIR 1983 Delhi 53) (India)..................
• 47. Sheldon Versus Sheldon {(1966) 2 All England Reported 257}..............................
• 48. Sirajmohmedkhan Janmohamadkhan v. Haizunnisa Yasinkhan & Anr. (1981)
  • S.C.C. 250 (India).....................................................................................................
• 49. State of Bihar v. Lal Krishna Advani, A.I.R. 2003 S.C. 3357. (India).....................
• 50. State of M.P. v. RakeshKohli, A.I.R. 2012 S.C 2351 (India).;..................................
  • (India)....................................................................................................................... 51. State of Maharashtra v. Public Concern for Government Trust, (2007) 3 S.C.C. 587.
• 52. State of W.B v. Kesoram Industries, A.I.R. 2005 S.C. 1646 (India).........................
• 53. Subramanian Swamy v. Director, C.B.I , A.I.R. 2014 S.C. 2140 (India).................
• 54. Susarla Subrahmanya Sastry vs. Padmakshi II (2005) D.M.C. 707 (DB) (India)...
• 55. XB S Joshi v. State of Haryana, (2003) Cr LJ 2028 (SC) (India).;...........................
  • No.5672 of 2016. (Gujarat HC). (India)................................................................... 56. Bhartiben Bipinbhai Tamboli v. State of Gujarat, Special Criminal Application (DV)
• 57. Chetan Dass v. Kamla Devi reported in (2001) 4 S.C.C. 250 (India).......................
• 58. Deepak Bajaj v. State, (2008) 16 S.C.C. 14; (India).................................................
• 59. Harvender Kaur v. Harmander Singh Choudhary, A.I.R. 1984 Del. 66. (India).......
• 60. K Prema S Rao v. YadlaSrinivasa Rao (2003) 1 S.C.C. 217 (India)........................
• 61. K.B. Nagur, MD (Ayurveda) v. UOI, A.I.R. 2012 S.C. 1774. (India)......................
• 62. K.K.Baskaran v. State of T.N, A.I.R. 2011 S.C. 1485 (India).;................................
• 63. Mehmood Nayyar Azam v. State of Chattisgarh, A.I.R. 2012 S.C. 2573 (India).....
• 64. Mr.X v. Hospital Z, (1998) 8 S.C.C. 296. (India).....................................................
• 65. Om Prakash Chautala v. Kanwar Bhan, A.I.R. 2014 S.C. 1220 (India)...................
• 66. Parveen Mehta v. Inderjit Mehta reported in (2002) 5 SCC 706 (India)..................
• 68. R. Rajagopal v. State of Tamil Nadu, A.I.R. 1995 S.C. 264 (India).........................
• 69. Rita Nijhawan vs. Balkishan Nijhawan A.I.R. 1973 Delhi 200 (India)....................
• 70. Rita V. Balkrishan Nijhawan, A.I.R. 1973 Del 200 (India)......................................
• 71. Samar Ghosh vs Jaya Ghosh (2007) 4 S.C.C. 511 (India)........................................
• 72. Samayne’s, (1604) 5 Co Rep 91a.............................................................................
• 73. Shankuntla Kumari vs. Om Prakash Ghai (AIR 1983 Delhi 53) (India)..................
• 74. Sheldon Versus Sheldon {(1966) 2 All England Reported 257}..............................
• 75. Sirajmohmedkhan Janmohamadkhan v. Haizunnisa Yasinkhan & Anr. (1981)
  • S.C.C. 250 (India).....................................................................................................
• 76. State of Bihar v. Lal Krishna Advani, A.I.R. 2003 S.C. 3357. (India).....................
• 77. State of M.P. v. RakeshKohli, A.I.R. 2012 S.C 2351 (India).;..................................
  • (India)....................................................................................................................... 78. State of Maharashtra v. Public Concern for Government Trust, (2007) 3 S.C.C. 587.
• 79. State of W.B v. Kesoram Industries, A.I.R. 2005 S.C. 1646 (India).........................
• 80. Subramanian Swamy v. Director, C.B.I , A.I.R. 2014 S.C. 2140 (India).................
• 81. Susarla Subrahmanya Sastry vs. Padmakshi II (2005) D.M.C. 707 (DB) (India)...

LITERATURE REFERRED:

 COMMENTARIES ON INDIAN PENAL CODE:

1. RATANLAL &DHIRAJLAL’S LAW OF CRIMES – A Commentary on The Indian Penal Code, Vol. I, Bharat Law House, Delhi, 27th End. 2013.
2. RATANLAL &DHIRAJLAL'S LAW OF CRIMES – A Commentary on The Indian Penal Code, Vol. II, Bharat Law House, Delhi, 27th Edn. 2013.
3. JUSTICE V. V. RAGHVAN, LAW OF CRIMES, India Law House, New Delhi, 5th Edn. 2001.
4. K I VIBHUTI, P.S.A PILLIA'S CRIMINAL LAW, Lexis Nexis, 12th Edn. 2014.
5. DR. (Sir) HARI SINGH GOUR, PENAL LAW OF INDIA, Law Publishers (India) Pvt. Ltd., 11th Edn. 2014.
6. J C SMITH, SMITH AND HOGAN CRIMINAL LAW – Cases and Materials, LexisNexis Butterworth’s, 8th Edn. 2002.
7. BASU'S INDIAN PENAL CODE (Law of Crimes), Vol. I., Asoka Law House, 11th Edn. 2011.
8. S.K. SARVARIA, R.A. NELSON’S INDIAN PENAL CODE (9th ed. Lexis Nexis Butterworths Gurgaon 2002).
9. M.P. TANDON, THE INDIAN PENAL CODE (23th ed. Allahabad Law Agency, Faridabad 2005).
10. RAM JETHMALANI & D.S. CHOPRA, 2 THE INDIAN PENAL CODE (1st ed. Thomson Reuters, Legal, New Delhi 2014).  COMMENTARIES ON CONSTITUTIONAL LAW:
11. M.P. JAIN, INDIAN CONSTITUTIONAL LAW (6th ed. Lexis Nexis Butterworths Wadhwa, Nagpur 2010).
12. DURGA DAS BASU, 1 COMMENTARY ON CONSTITION OF INDIA (8th ed. Wadhwa and Company Nagpur 2007).
13. DR. SUBHASH C. KASHYAP, 2 CONSTITUTIONAL LAW OF INDIA (Universal Law Publishing Pvt. Ltd., New Delhi 2008). 8 | P a g e

STATUTES REFERRED:

1. INDIAN PENAL CODE, 1860.

2. THE CONSTITUTION OF INDIA, 1949.

3. THE INDIAN EVIDENCE ACT, 1872.

4. THE CODE OF CRIMINAL PROCEDURE, 1973.

DICTIONARIES REFERRED:

1. BRYAN A. GARNER, BLACK’S LAW DICTIONARY (8th ed. 2001).
2. OXFORD ENGLISH DICTIONARY (2nd ed. 2009).
3. P. RAMAPHARYAN, LAW LEXCION, (4th^ ed. 2017)
4. WEBSTER’S NEW INTERNATIONAL DICTIONARY LEGAL DATABASES: 1. MANUPATRA. 2. SCC ONLINE. 3. LAWFINDER. WEBSITES REFERRED:
5. http://www.manupatra.com
6. http://www.judis.nic.in
7. http://ncrb.nic.in
8. http://www.scconline.com
9. http://www.airwebworld.com
10. http://www.jstor.com
11. http://www.lexusnexus.com/in/l REPORTS
12. 42nd Report of Fifth Law Commission of India, 1971
13. 156th Report of Fourteenth Law Commission of India, 1997
14. 172nd Report of Fifteenth Law Commission of India, 2000 9 | P a g e

OTHER SOURCES

1. Constitutional Assembly Debates: Official Reports Vol.VII: Nov. 4, 1948
2. Wharton’s Law Lexicon, 15th Edn. 2009
3. Encyclopaedia Britannica Online, "Adultery"
4. K.I. Vibhute, 'Rape' and the Indian Penal Code at the Crossroads of the New Millennium: Between Patriarchist and Gender Neutralist Approach", Journal of the Indian Law Institute (January-March 2001, In Press)
5. Yogyakarta Principles
6. International Conventions STATEMENT OF JURISDICTION 10 | P a g e

The petitioners had approached the Hon’ble Supreme Court of India under Article 32^1 of the Constitution of India, 1950 and the respondent humbly submits to the jurisdiction.

STATEMENT OF FACTS

 Nidhi and Subodh, aged 22 and 24 respectively, have been live-in partners since 2017 and love each other. 1 Remedies for enforcement of rights conferred by this Part (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part (3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 ) (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution 11 | P a g e

 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 the 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.  One day, Nidhi was watching a debate show on television on the topic of marital rape.  A few of the panellist 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 organization that has previously helped to bring in women-centric laws by rallying for classification and enactment of women rights via legislations and judicial intervention  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 constitutional validity of Exception II to Section 375 of the Indian Penal Code, 1860. 12 | P a g e

ISSUES RAISED

…………………………………….……. ISSUE 1……….……….………………………….

THAT SEXUAL INTERCOURSE WITHOUT THE WIFE’S CONSENT IS RAPE U/S

375 OF IPC OR NOT AND WHETHER IT IS VIOLATIVE OF ARTICLE 14, OF THE

CONSTITUTION?

…………………………………….……. ISSUE 2……….……….………………………….

THAT THERE ARE MANY OTHER ALTERNATIVES UNDER WHICH THE

WOMEN CAN COMPLAIN AND GET REMEDIES

…………………………………….……. ISSUE 3……….……….………………………….

THAT THE PERSONAL LIBERTY OF A WIFE UNDER ART.21 IS NOT ABSOLUTE

AND IS SUBJECT TO RESTRICTIONS IMPOSED BY THE MATRIMONIAL

PRIVACY

…………………………………….……. ISSUE 4……….……….………………………….

THAT THE DENIAL OF SEX TO HUSBAND LEADS TO CRUELTY

13 | P a g e

SUMMARY OF ARGUMENTS

1. THAT SEXUAL INTERCOURSE WITHOUT THE WIFE’S CONSENT IS RAPE

U/S 375 OF IPC OR NOT AND WHETHER IT IS VIOLATIVE OF ARTICLE 14, OF

THE CONSTITUTION?

 It is humbly submitted before this Hon’ble court that sexual intercourse without wife’s consent is not rape. Section 375 IPC nowhere specifies or demonstrates the term ‘sexual intercourse without wife’s consent.’  Thus, it is humbly submitted in the light of these judgments that identical treatment cannot be given to a married and unmarried woman. Moreover, if forceful intercourse will be termed as rape it will arbitrarily be against the men being violative of Art. 15 of the constitution. Therefore, it is humbly submitted before this Hon’ble bench that Section 375 of IPC draws a reasonable classification between married and the unmarried women. Thus, it is not violative of Art. 14 of the Constitution of India.

2. THAT THERE ARE MANY OTHER ALTERNATIVES UNDER WHICH THE WOMEN CAN COMPLAIN AND GET REMEDIES  It is most humbly submitted before this honourable court that by declaring this very exemption clause as being violative of fundamental and human rights is not the sole option to be relied upon. Article 15(3) of the constitution of India states that “Nothing in this article shall prevent state from making any special provision for women and children.”  It is pertinent to note that there are various constraints due to which the exemption clause is not being criminalised and also there are various other alternative remedies available under which aggrieved women can seek protection. 14 | P a g e

3. THAT THE PERSONAL LIBERTY OF A WIFE UNDER ART.21 IS NOT

ABSOLUTE AND IS SUBJECT TO RESTRICTIONS IMPOSED BY THE

MATRIMONIAL PRIVACY.

 It is most humbly submitted to the Hon’ble Court that marital rape is not rape u/s 375 of IPC and exception 2 to section 375 of IPC, does not violate Article 21 of the Constitution of India. Article 21 is of great importance because it enshrines the fundamental right to individual liberty, but at the same time balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute and reasonable restrictions can be placed on them.^2  The exception 2 to Sec. 375 is constitutionally valid as the same has been framed to protect the institution & sanctity of marriage and to protect innocent husbands from malicious litigations. This provision has been inserted on the basis of reasonable classification and it satisfies the test of constitutionality.

4. THAT THE DENIAL OF SEX TO HUSBAND LEADS TO CRUELTY  It is most humbly submitted before this honourable court that a wife by denying sex to her husband and by not satisfying her and not fulfilling her marital obligations leads to cruelty to husband.  There is nothing more fatal to a marriage than disappointment in sexual inter-course. To force a husband to such sexless life, which inevitably damages the physical as well as mental health is nothing, but cruelty. 2 Rajesh Rajan v. C.B.I., (2007) 1 S.C.C. 70 (Indian). 15 | P a g e

ARGUMENTS ADVANCED

MOST RESPECTFULLY SHOWETH:

1. WHETHER SEXUAL INTERCOURSE WITHOUT THE WIFE’S CONSENT IS

RAPE U/S 375 OF IPC OR NOT AND WHETHER IT IS VIOLATIVE OF

ARTICLE 14, OF THE CONSTITUTION?

1.1 It is humbly submitted before this Hon’ble court that sexual intercourse without wife’s consent is not rape. Section 375 IPC nowhere specifies or demonstrates the term ‘sexual intercourse without wife’s consent.’ 1.2 Therefore, rape u/s 375 is constituted only if the act falls under the seven exceptions of the offence. Firstly, against her will; Secondly, without her consent; Thirdly, when her consent is obtained by putting fear of death in her; Fourthly, when the consent is given under the belief that another man is her lawfully married husband; Fifthly, when consent given by the reason of unsoundness of mind or intoxication etc.; Sixthly, with or without her consent, when she is under 16 years of age and Seventhly, when she is unable to convey her consent. 1.3 Moreover, while convicting a person u/s 375 of the IPC the two essential ingredients of Section 375 should be fulfilled as was observed by the court in the case of Suo Moto v. State of Rajasthan,^3 that there are two essential ingredients of rape under Section 375 IPC. Firstly, sexual intercourse by a man with a woman and secondly, the sexual intercourse must be under circumstances falling under any of the six clauses in this section. 1.4 THAT IT DOES NOT VIOLATE ART. 14 OF THE CONSTITUTION OF INDIA 1.4.1 It is humbly submitted before this Hon’ble court that Article 14 provides the right to equality and equal protections of the laws to every person within the territory of India. Article 14 is considered to be a part of the Golden triangle of the Constitution of India and is a fundamental right that stands above the rest.^4 3 Suo Moto v. State of Rajasthan, 2005 (4) INDIA.L.C. 163 (India). 4 Ashok Kumar Thakur v. U.O.I, (2008) 6 S.C.C. 1 (India). 16 | P a g e

1.4.2 Therefore, no person within the territory of India can be denied the “right to equality” and the enjoyment of “equal protection of laws.” The point to be noted is that the principle of equality does not mean that every law must have universal application for all^5 who are not by nature, attainment or circumstances, in the same position as the varying needs of different classes of persons often require separate treatment. 1.4.3 Our Constitution is wedded to the concept of Equality which is the basic feature of the Constitution and is a fundamental postulate of Republicanism.^6 Equality clause embodied in Article 14, does not speak of mere formal Equality before the law but is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within the traditional and doctrinaire limits Article 14, Article 19 and Article 21 must be read together.^7 1.4.4 It has been observed by the Hon’ble SC in the case of Delhi Development Authority v. Joint Action Committee,^8 that Article 14 is the heart and soul of the constitution. Article 14 guarantees to all persons in our country equality before the law and equal protection of the laws, which only means that all persons are equally and have a right to equal protection.^9 1.4.5 Moreover, the wording used in Article 14 suggests that right to equal protection of law is absolute. But, in reality, it is not so. It is now well established by a catena of decisions of the Hon’ble Supreme Court that it is subject to reasonable classification.^10 1.4.6 It was observed by the Hon’ble SC in the case of Anita Kushwaha v. Pushpa Sudan^11 that, “Equal protection of laws is not limited in its application to the realm of executive action that enforces the law-it is as much available in relation to the proceedings before courts and tribunal and adjudicatory or where law is applied and 5 Kedarnath v. State of INDIA.B, A.I.R. 1953 S.C. 404 (406) (India). 6 Indira Nehru Gandhi v. Raj Narain, A.I.R. 1975 S.C. 2299 (India). 7 Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597 (India). 8 Delhi Development Authority v. Joint Action Committee, (2008) 2 S.C.C. 672 (India). 9 Narain Das v. Improvement Trust (1973) 2 S.C.C. 265 (India). 10 E P Royappav v. State of Tamil Nadu, A.I.R. 1974 S.C. 555 (India). 11 Anita Kushwaha v. Pushpa Sudan, (2016) 8 S.C.C. 509 (India). 17 | P a g e

justice is administered. Equality clause forbids discrimination and not classification.”^12 1.4.7 The right of equality of treatment applies only to equals and not unequal’s.^13 Article 14 has inbuilt flexibility and it also permits different treatment to unequal’s as it only prohibits discrimination amongst the equals.^14 The principle does not take away from the state the power of classifying persons for legitimate purposes.^15 Equality clause is India to secure socio-economic justice to people. Courts are duty bound to give shape and offer reality to socialistic concept.^16 1.4.8 It is humbly submitted before this Hon’ble bench that Section 375 of the IPC classifies women into two categories-married women and unmarried women. Art. 14 prohibits class legislation and not reasonable classification for the purposes of legislation.^17 If the legislature takes care to reasonably classify persons for legislative purposes and if it deals equally with all persons belonging to a well-defined class, it is not open to the charge of denial of equal protection on the ground that the law does not apply to other persons.^18 1.4.9 In order to determine the reasonability of the classification it has to fulfil the test of reasonability laid down by the Hon’ble SC in the case of Deepak Sibbal v. Panjab University.^19 The Hon’ble SC laid down two conditions, namely: - (i) That the classification must be founded on an intelligible differentia. (ii) That the differentia must have a rational nexus to the object sought to be achieved by the state in question. 12 State of Bihar v. Bihar State +2 lectures Association, A.I.R. 2007 S.C. 1942 (India). 13 U.O.I. v. Ram Gopal Verma, A.I.R. 1998 S.C. 783 (India). 14 M.P. Oil Extractions v. State of M.P, A.I.R. 1998 S.C. 145 (India). 15 Chiranjitlal v. U.O.I, (1950) S.C.R 869. (India). 16 Secretary, Haryana State Electricity Board v. Suresh, A.I.R. 1999 S.C. 1160 (India). 17 Budhan v. State of Bihar (1955) 1 S.C.R 1045 (India). 18 State of INDIA.B v. Anwar Ali (1952) S.C.R 284 (India). 19 Deepak Sibbal v. Panjab University, (1989) 2 S.C.C. 145 (India). 18 | P a g e

1.4.10 What is necessary is that there must be a nexus between the basis of classification and the object of the act under consideration.^20 It is pertinent to note in the case at hand that the classification India to maintain the sanctity of the institution of marriage. Therefore, the classification drawn by 375 is reasonable in nature because the classification is real and substantial and bears some just and reasonable relation to the object of the legislation.^21 It is humbly submitted that the classification between married and unmarried women is reasonable in nature as there is an intelligible differentia between the classifications based on procurement of the evidence. 1.4.11 ‘Equal protection of law’ does not mean that the same law should be made applicable to all persons or that every law must have universal application irrespective of difference of circumstances.^22 The Hon’ble Supreme Court observed that Article 14 does not operate against rational classification.^23 Mere differentiation or inequality of treatment does not reason to attract the vice of Article 14 of the Constitution.^24 It was held by the Hon’ble Supreme Court that a reasonable classification is inherent in the very concept of equality, because all the persons living on this earth are not alike and have different problems.^25 [¶ 1]. Moreover, it would become impossible to find the evidence to make out the offence of rape. The point to be considered is that any sexual act done by a husband with her wife is done behind the closed doors. Moreover, it was observed by the Hon’ble SC in the case of Savitri Pandey v. Prem Chand Pandey,^26 that cohabitation by husband and wife is an essential feature of valid marriage. [¶ 2]. In Rita das Biswas v. Trilokesh Das Biswas,^27 it was held that co-habitation is an essential ingredient for a valid marriage. The point to be taken into consideration is 20 Tulsipur Sugar Co. v. Govt of U.P, A.I.R. 1987 S.C. 443 (India). 21 Ameeronisa v. Mahboob (1953) S.C.R 404 (India). 22 Jagannath Prasad v. State of U.P, A.I.R. 1961 S.C. 1245 (India). 23 Western U.P. Electric Power v. State of U.P, A.I.R. 1970 S.C. 21 (India). 24 Jaila Singh v.State of Rajasthan, A.I.R. 1975 S.C. 1436 (India). 25 Pathumma v. State of Kerala, A.I.R. 1978 S.C. 771 (India). 26 Savitri Pandey v. Prem Chand Pandey, (2002) 2 S.C.C. 73 (India). 27 Rita Das Biswas v. Trilokesh Das Biswas, A.I.R. 2007 Gau. 122 (India). 19 | P a g e

that procuring any evidence except the testimony of the prosecutrix, will become impossible. The Hon’ble SC has observed in plethora of cases that the statement of the prosecutrix holds a very high evidentiary value and is sufficient to convict a person. As was observed by the Hon’ble SC in the case of Uday v. State of Karnataka,^28 that the medical evidence of a girl or a woman who complains of rape or sexual molestation should not be viewed with doubt, disbelief or suspicion. [¶ 3]. Moreover, it was observed by the Hon’ble SC in the case of Garg v. U.O.I.,^29 that the reasonableness is to be judged with reference to the object of the legislation and not moral considerations. [¶ 4]. In all cases where the material adduced before the court in matters relating to Art. 14 is unsatisfactory, the court may have to allow the state to lean on the doctrine of initial presumption of constitutionality.^30 There is always a presumption in favour of the Constitutionality of an enactment and the burden is upon the person, who attacks it, to show that there has been a clear transgression of the Constitutional principles.^31 It must be presumed that the legislature understands and correctly appreciates the needs of its own people, that, its laws are directed to problems made manifest by experience and that, its discrimination are based on adequate grounds.^32 [¶ 5]. The Courts always lean against a construction, which reduces the Statute to a futility. A Statute or any enacting provision therein, it is said, must be so construed as to make it effective and operative on the principle expressed in the maxim “ ut res magisvaleat quam pereat.”^33 Thus, it is humbly submitted that the legislature after taking into consideration the needs and ethos of the society has inserted the Exception in the impugned Section. It is further humbly submitted that criminalizing such a private affair between a married couple will go against the interests of the society at large. [¶ 6]. It is always observed that there is a presumption in the constitutionality of an enactment, since it is assumed that the legislature understands and correctly 28 Uday v. State of Karnataka, (2003) 4 S.C.C. 46 (India). 29 Garg v. U.O.I., A.I.R. 1981 S.C. 2138 (India). 30 Ratnaporva Devi v. State of Orissa (1964) 6 S.C.R 301 (India). 31 Subramanian Swamy v. Director, C.B.I., A.I.R. 2014 S.C. 2140 (India). 32 The Rule was enunciated by the American Supreme Court in Middleton v. Texas Power & L. Company, ( U.S. 152) quoted in Government of A.P. v. P.L. Devi, A.I.R. 2008 S.C. 1640 (India). 33 Saurabh Chaudri v. Union of India, A.I.R. 2004 S.C. 361 (India). 20 | P a g e

appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds.^34 [¶ 7]. All that Article 14 guarantees is a similarity of treatment and not identical treatment. It does not prohibit reasonable classification.^35 The concept of Equality before law does not involve the idea of absolute equality amongst all. All that Article 14 guarantees is the similarity of treatment and not identical treatment.^36 The principle of equality would not mean that every law must have universal application for all persons who, by nature, attainment or circumstances, are in the same position.^37 If the legislature reasonably classifies persons for legislative purposes so as to bring them under a well- defined class, it is not open to challenge on the ground of denial of equal treatment that the law does not apply to other persons.^38 [¶ 8]. Thus, it is humbly submitted in the light of these judgments that identical treatment cannot be given to a married and unmarried woman. Moreover, if forceful intercourse will be termed as rape it will arbitrarily be against the men being violative of Art. 15 of the constitution. Therefore, it is humbly submitted before this Hon’ble bench that Section 375 of IPC draws a reasonable classification between married and the unmarried women. Thus, it is not violative of Art. 14 of the Constitution of India. 34 State of M.P. v. Nandlal, A.I.R. 1987 S.C. 251 (India). 35 K.R. Lakshman v. Karnataka Electricity Board, (2001) 1 S.C.C. 442 (India). 36 Ashutosh Gupta v. State of Rajasthan, (2002) 4 S.C.C. 34 (India). 37 Heena Kausar v. Competent Authority, (2008) 14 S.C.C. 724 (India). 38 State of A.P. v. Nallamilli, (2001) 7 S.C.C. 708 (India). 21 | P a g e

2. THAT THERE ARE MANY OTHER ALTERNATIVES UNDER

WHICH THE WOMEN CAN COMPLAIN AND GET REMEDIES

2.1 It is most humbly submitted before this honourable court that by declaring this very exemption clause as being violative of fundamental and human rights is not the sole option to be relied upon. Article 15(3) of the constitution of India states that “Nothing in this article shall prevent state from making any special provision for women and children.” 2.2 There are many other laws and acts under which the women can complain and get protection and remedy for any sought of physical spousal violence and abuse. 2.3 “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, including level of education, illiteracy, poverty, myriad social customs and values, religious beliefs, the mindset of the society to treat the marriage as a sacrament ,” said Haribhai Parthibhai Chaudhary, a Union minister, in a written reply in the Parliament, in 2015. 2.4 It argued there can be no lasting evidence in case of sexual acts between a man and his wife. “ If all sexual acts by a man with his wife qualify as marital rape, then the judgment as to whether it is marital rape or not will singularly rest with the wife. The question is what evidences the courts will rely upon in such circumstances as there can be no lasting evidence in case of sexual acts between a man and his wife ,” the affidavit, filed before a division bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar, said. 2.5 PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 2.5.1 The objective of this act was An Act to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. 2.5.2 Section 3(1) of the act provides that, “any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it - (a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of 22 | P a g e

the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; 2.5.3 Also, an aggrieved woman may file an application to the magistrate under section 12 of the act which provides that 1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act. 2.5.4 In the case of Krishna Bhatacharjee v. Sarathi Choudhury and Another^39 , the apex court gave guidelines that It is the duty of the Court to scrutinise the facts from all angles whether a plea advanced by the respondent to nullify the grievance of the aggrieved person is really legally sound and correct. 2.5.5 In the case of Juveria Abdul Majid Patni v. Atif Iqbal Mansoori and Anr.^40 , it was stated that in case any domestic violence, any relief available under the act will be provided to the aggrieved person. 2.5.6 Also Section 31 of the act provides for Penalty for breach of protection order by respondent. It states that “1) A breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both.”. 2.6 REMEDY AVAILABLE UNDER SECTION 498A OF THE INDIAN PENAL CODE, 1860 2.6.1 This Section provides for Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. 39 Krishna Bhatacharjee v. Sarathi Choudhury and Another CRIMINAL APPEAL NO. 1545 OF 2015 (India). 40 Juveria Abdul Majid Patni v. Atif Iqbal Mansoori and Anr.( Criminal Appeal No. 2069 of 2014), (India). 23 | P a g e

2.6.2 In the case of Rajesh Sharma and Ors vs State of UP^41 , The myth is that Section 498A is a brahmastra in the hands of the wife, which was to be deployed to settle petty matrimonial scores. 2.7 REMEDY AVAILABLE UNDER SECTION 377 OF THE INDIAN PENAL CODE, 1860 2.7.1 This section provides for Unnatural offences— Whoever voluntarily has carnal inter- course against the order of nature with any man, woman or animal, shall be punished with 1[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. Explanation. Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section. 2.8 MEDICAL RECORD SHOULD BE USED FOR DETERMINATION THAT THE SEXUAL INTERCOURSE WAS CONSENSUAL OR NOT? 2.8.1 How can you prove that the act was non-consensual using DNA samples as evidence? The answer is in the judgment of Supreme Court in Sheik Zakir vs State of Bihar^42 , where it ruled that the absence of a medical record would not be of much consequence if the other evidence on record is believable. 2.8.2 Even so, Akila RS, a lawyer based in Chennai, points out the relevance of medical evidence in cases of marital rape too. “A history of physical violence, results of a rape-kit and medical examination of the wife, witness testimony and possible admission of the husband in electronic communications could be ample evidence to prove his guilt,” she says. A timely medical examination can differentiate between consensual sex and forced sex. 2.8.3 “Yes, there is some difficulty in the criminal jurisprudence here, but we have to develop it. And at least, in cases where there is enough proof for proving marital rape, the law will help punish the husbands,” says Akila 41 Rajesh Sharma and Ors vs State of UP Special Leave Petition (Crl.) No.2013 of 2017] (India). 42 Sheik Zakir vs State of Bihar (1983 A.I.R. 911, 1983 S.C.R. (2) 312) (India). 24 | P a g e

2.8.4 Those of us arguing for criminalising marital rape are not asking for a ‘special provision’ for married women. What we are asking for is the removal of special status accorded to some rapists. There cannot be ‘good rape’ and ‘bad rape’; there cannot be gradations based on the relationship between the victim and the perpetrator. 2.9 SUBMISSIONS OF UNION GOVERNMENT 2.9.1 Marital rape is not defined in any statue/ laws. While rape is defined under Section 375 of IPC, defining marital rape would call for a broad based consensus of the society. What may appear to be marital rape to an individual wife, it may not appear so to others. As to what constitutes marital rape and what would constitute marital non rape needs to be defined precisely before a view on its criminalization is taken. 2.9.2 That it has to be ensured adequately that marital rape does not become a phenomenon which may destabilize the institution of marriage apart from being an easy tool for harassing the husbands. The Supreme Court and various High Courts have already observed the rising misuse of section 498A of IPC 2.9.3 If all sexual acts by a man with his own wife will qualify to be a marital rape, judgment as to whether it is a marital rape or not will singularly rest with the wife. The Question is what evidences the Courts will rely upon in such circumstances as there can be no lasting evidence in case of sexual acts between a man and his own wife. 2.9.4 That the Law Commission in its 172 Report titled Review of Rape Laws and the Department Related Parliamentary Standing Committee on Home Affairs in its 167th Report examined the matter and did not recommend the criminalization of marital rape 2.9.5 The 172 nd^ report of Law Commission running into seven chapters devotes one paragraph and one sentence in that paragraph to summarily reject the demand to criminalise marital rape. Again the 136-page 167th^ report of Parliamentary Committee on Home Affairs restricts its views to a few sentences and concludes, with circular reasoning, in this age of nuclear families, “that institution of family is able to resolve the problems”. 25 | P a g e