memorandum submitted on behalf of the respondent on martial rape, Assignments of Criminal Law

Download memorandum submitted on behalf of the respondent on martial rape and more Assignments Criminal Law in PDF only on Docsity! TEAM CODE: TC-71R 8th 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 8th RGNUL NATIONAL MOOT COURT COMPETITION, 2019 TEAM CODE: TC-71 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? 16-34 16 22ISSUE II: THAT THERE ARE MANY OTHER ALTERNATIVES UNDER WHICH THE WOMEN CAN COMPLAIN AND GET REMEDIES 2 | P a g e MEMORIAL ON BEHALF OF RESPONDENT 8th RGNUL NATIONAL MOOT COURT COMPETITION, 2019 TEAM CODE: TC-71 1. XB S Joshi v. State of Haryana, (2003) Cr LJ 2028 (SC) (India).;...........................29 2. Bhartiben Bipinbhai Tamboli v. State of Gujarat, Special Criminal Application (DV) No.5672 of 2016. (Gujarat HC). (India)...................................................................28 3. Chetan Dass v. Kamla Devi reported in (2001) 4 S.C.C. 250 (India).......................31 4. Deepak Bajaj v. State, (2008) 16 S.C.C. 14; (India).................................................27 5. Harvender Kaur v. Harmander Singh Choudhary, A.I.R. 1984 Del. 66. (India).......29 6. K Prema S Rao v. YadlaSrinivasa Rao (2003) 1 S.C.C. 217 (India)........................29 7. K.B. Nagur, MD (Ayurveda) v. UOI, A.I.R. 2012 S.C. 1774. (India)......................26 8. K.K.Baskaran v. State of T.N, A.I.R. 2011 S.C. 1485 (India).;................................26 9. Mehmood Nayyar Azam v. State of Chattisgarh, A.I.R. 2012 S.C. 2573 (India).....27 10. Mr.X v. Hospital Z, (1998) 8 S.C.C. 296. (India).....................................................27 11. Om Prakash Chautala v. Kanwar Bhan, A.I.R. 2014 S.C. 1220 (India)...................28 12. Parveen Mehta v. Inderjit Mehta reported in (2002) 5 SCC 706 (India)..................31 13. Parveen Mehta Versus Inderjit Mehta reported in 2002 (2) H.L.R. 513 (SC) (India). ..................................................................................................................................30 14. R. Rajagopal v. State of Tamil Nadu, A.I.R. 1995 S.C. 264 (India).........................26 15. Rita Nijhawan vs. Balkishan Nijhawan A.I.R. 1973 Delhi 200 (India)....................32 16. Rita V. Balkrishan Nijhawan, A.I.R. 1973 Del 200 (India)......................................30 17. Samar Ghosh vs Jaya Ghosh (2007) 4 S.C.C. 511 (India)........................................32 18. Samayne’s, (1604) 5 Co Rep 91a.............................................................................27 19. Shankuntla Kumari vs. Om Prakash Ghai (AIR 1983 Delhi 53) (India)..................31 20. Sheldon Versus Sheldon {(1966) 2 All England Reported 257}..............................32 21. Sirajmohmedkhan Janmohamadkhan v. Haizunnisa Yasinkhan & Anr. (1981) 4 S.C.C. 250 (India).....................................................................................................32 22. State of Bihar v. Lal Krishna Advani, A.I.R. 2003 S.C. 3357. (India).....................27 23. State of M.P. v. RakeshKohli, A.I.R. 2012 S.C 2351 (India).;..................................26 24. State of Maharashtra v. Public Concern for Government Trust, (2007) 3 S.C.C. 587. (India).......................................................................................................................27 25. State of W.B v. Kesoram Industries, A.I.R. 2005 S.C. 1646 (India).........................26 26. Subramanian Swamy v. Director, C.B.I , A.I.R. 2014 S.C. 2140 (India).................26 27. Susarla Subrahmanya Sastry vs. Padmakshi II (2005) D.M.C. 707 (DB) (India)...33 5 | P a g e MEMORIAL ON BEHALF OF RESPONDENT 8th RGNUL NATIONAL MOOT COURT COMPETITION, 2019 TEAM CODE: TC-71 28. XB S Joshi v. State of Haryana, (2003) Cr LJ 2028 (SC) (India).;...........................29 29. Bhartiben Bipinbhai Tamboli v. State of Gujarat, Special Criminal Application (DV) No.5672 of 2016. (Gujarat HC). (India)...................................................................28 30. Chetan Dass v. Kamla Devi reported in (2001) 4 S.C.C. 250 (India).......................31 31. Deepak Bajaj v. State, (2008) 16 S.C.C. 14; (India).................................................27 32. Harvender Kaur v. Harmander Singh Choudhary, A.I.R. 1984 Del. 66. (India).......29 33. K Prema S Rao v. YadlaSrinivasa Rao (2003) 1 S.C.C. 217 (India)........................29 34. K.B. Nagur, MD (Ayurveda) v. UOI, A.I.R. 2012 S.C. 1774. (India)......................26 35. K.K.Baskaran v. State of T.N, A.I.R. 2011 S.C. 1485 (India).;................................26 36. Mehmood Nayyar Azam v. State of Chattisgarh, A.I.R. 2012 S.C. 2573 (India).....27 37. Mr.X v. Hospital Z, (1998) 8 S.C.C. 296. (India).....................................................27 38. Om Prakash Chautala v. Kanwar Bhan, A.I.R. 2014 S.C. 1220 (India)...................28 39. Parveen Mehta v. Inderjit Mehta reported in (2002) 5 SCC 706 (India)..................31 40. Parveen Mehta Versus Inderjit Mehta reported in 2002 (2) H.L.R. 513 (SC) (India). ..................................................................................................................................30 41. R. Rajagopal v. State of Tamil Nadu, A.I.R. 1995 S.C. 264 (India).........................26 42. Rita Nijhawan vs. Balkishan Nijhawan A.I.R. 1973 Delhi 200 (India)....................32 43. Rita V. Balkrishan Nijhawan, A.I.R. 1973 Del 200 (India)......................................30 44. Samar Ghosh vs Jaya Ghosh (2007) 4 S.C.C. 511 (India)........................................32 45. Samayne’s, (1604) 5 Co Rep 91a.............................................................................27 46. Shankuntla Kumari vs. Om Prakash Ghai (AIR 1983 Delhi 53) (India)..................31 47. Sheldon Versus Sheldon {(1966) 2 All England Reported 257}..............................32 48. Sirajmohmedkhan Janmohamadkhan v. Haizunnisa Yasinkhan & Anr. (1981) 4 S.C.C. 250 (India).....................................................................................................32 49. State of Bihar v. Lal Krishna Advani, A.I.R. 2003 S.C. 3357. (India).....................27 50. State of M.P. v. RakeshKohli, A.I.R. 2012 S.C 2351 (India).;..................................26 51. State of Maharashtra v. Public Concern for Government Trust, (2007) 3 S.C.C. 587. (India).......................................................................................................................27 52. State of W.B v. Kesoram Industries, A.I.R. 2005 S.C. 1646 (India).........................26 53. Subramanian Swamy v. Director, C.B.I , A.I.R. 2014 S.C. 2140 (India).................26 54. Susarla Subrahmanya Sastry vs. Padmakshi II (2005) D.M.C. 707 (DB) (India)...33 6 | P a g e MEMORIAL ON BEHALF OF RESPONDENT 8th RGNUL NATIONAL MOOT COURT COMPETITION, 2019 TEAM CODE: TC-71 55. XB S Joshi v. State of Haryana, (2003) Cr LJ 2028 (SC) (India).;...........................29 56. Bhartiben Bipinbhai Tamboli v. State of Gujarat, Special Criminal Application (DV) No.5672 of 2016. (Gujarat HC). (India)...................................................................28 57. Chetan Dass v. Kamla Devi reported in (2001) 4 S.C.C. 250 (India).......................31 58. Deepak Bajaj v. State, (2008) 16 S.C.C. 14; (India).................................................27 59. Harvender Kaur v. Harmander Singh Choudhary, A.I.R. 1984 Del. 66. (India).......29 60. K Prema S Rao v. YadlaSrinivasa Rao (2003) 1 S.C.C. 217 (India)........................29 61. K.B. Nagur, MD (Ayurveda) v. UOI, A.I.R. 2012 S.C. 1774. (India)......................26 62. K.K.Baskaran v. State of T.N, A.I.R. 2011 S.C. 1485 (India).;................................26 63. Mehmood Nayyar Azam v. State of Chattisgarh, A.I.R. 2012 S.C. 2573 (India).....27 64. Mr.X v. Hospital Z, (1998) 8 S.C.C. 296. (India).....................................................27 65. Om Prakash Chautala v. Kanwar Bhan, A.I.R. 2014 S.C. 1220 (India)...................28 66. Parveen Mehta v. Inderjit Mehta reported in (2002) 5 SCC 706 (India)..................31 67. Parveen Mehta Versus Inderjit Mehta reported in 2002 (2) H.L.R. 513 (SC) (India). ..................................................................................................................................30 68. R. Rajagopal v. State of Tamil Nadu, A.I.R. 1995 S.C. 264 (India).........................26 69. Rita Nijhawan vs. Balkishan Nijhawan A.I.R. 1973 Delhi 200 (India)....................32 70. Rita V. Balkrishan Nijhawan, A.I.R. 1973 Del 200 (India)......................................30 71. Samar Ghosh vs Jaya Ghosh (2007) 4 S.C.C. 511 (India)........................................32 72. Samayne’s, (1604) 5 Co Rep 91a.............................................................................27 73. Shankuntla Kumari vs. Om Prakash Ghai (AIR 1983 Delhi 53) (India)..................31 74. Sheldon Versus Sheldon {(1966) 2 All England Reported 257}..............................32 75. Sirajmohmedkhan Janmohamadkhan v. Haizunnisa Yasinkhan & Anr. (1981) 4 S.C.C. 250 (India).....................................................................................................32 76. State of Bihar v. Lal Krishna Advani, A.I.R. 2003 S.C. 3357. (India).....................27 77. State of M.P. v. RakeshKohli, A.I.R. 2012 S.C 2351 (India).;..................................26 78. State of Maharashtra v. Public Concern for Government Trust, (2007) 3 S.C.C. 587. (India).......................................................................................................................27 79. State of W.B v. Kesoram Industries, A.I.R. 2005 S.C. 1646 (India).........................26 80. Subramanian Swamy v. Director, C.B.I , A.I.R. 2014 S.C. 2140 (India).................26 81. Susarla Subrahmanya Sastry vs. Padmakshi II (2005) D.M.C. 707 (DB) (India)...33 7 | P a g e MEMORIAL ON BEHALF OF RESPONDENT 8th RGNUL NATIONAL MOOT COURT COMPETITION, 2019 TEAM CODE: TC-71 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 MEMORIAL ON BEHALF OF RESPONDENT 8th RGNUL NATIONAL MOOT COURT COMPETITION, 2019 TEAM CODE: TC-71 The petitioners had approached the Hon’ble Supreme Court of India under Article 321 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 MEMORIAL ON BEHALF OF RESPONDENT 8th RGNUL NATIONAL MOOT COURT COMPETITION, 2019 TEAM CODE: TC-71  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 MEMORIAL ON BEHALF OF RESPONDENT 8th RGNUL NATIONAL MOOT COURT COMPETITION, 2019 TEAM CODE: TC-71 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. 2Rajesh Rajan v. C.B.I., (2007) 1 S.C.C. 70 (Indian). 15 | P a g e MEMORIAL ON BEHALF OF RESPONDENT 8th RGNUL NATIONAL MOOT COURT COMPETITION, 2019 TEAM CODE: TC-71 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 3Suo Moto v. State of Rajasthan, 2005 (4) INDIA.L.C. 163 (India). 4Ashok Kumar Thakur v. U.O.I, (2008) 6 S.C.C. 1 (India). 16 | P a g e MEMORIAL ON BEHALF OF RESPONDENT 8th RGNUL NATIONAL MOOT COURT COMPETITION, 2019 TEAM CODE: TC-71 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 all5 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.6Equality 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 Sudan11 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 5Kedarnath v. State of INDIA.B, A.I.R. 1953 S.C. 404 (406) (India). 6Indira Nehru Gandhi v. Raj Narain, A.I.R. 1975 S.C. 2299 (India). 7Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597 (India). 8Delhi Development Authority v. Joint Action Committee, (2008) 2 S.C.C. 672 (India). 9Narain Das v. Improvement Trust (1973) 2 S.C.C. 265 (India). 10E P Royappav v. State of Tamil Nadu, A.I.R. 1974 S.C. 555 (India). 11Anita Kushwaha v. Pushpa Sudan, (2016) 8 S.C.C. 509 (India). 17 | P a g e MEMORIAL ON BEHALF OF RESPONDENT 8th RGNUL NATIONAL MOOT COURT COMPETITION, 2019 TEAM CODE: TC-71 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,28that 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.,29that 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.”33Thus, 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 28Uday v. State of Karnataka, (2003) 4 S.C.C. 46 (India). 29Garg v. U.O.I., A.I.R. 1981 S.C. 2138 (India). 30Ratnaporva Devi v. State of Orissa (1964) 6 S.C.R 301 (India). 31Subramanian Swamy v. Director, C.B.I., A.I.R. 2014 S.C. 2140 (India). 32The Rule was enunciated by the American Supreme Court in Middleton v. Texas Power & L. Company, (248 U.S. 152) quoted in Government of A.P. v. P.L. Devi, A.I.R. 2008 S.C. 1640 (India). 33Saurabh Chaudri v. Union of India, A.I.R. 2004 S.C. 361 (India). 20 | P a g e MEMORIAL ON BEHALF OF RESPONDENT 8th RGNUL NATIONAL MOOT COURT COMPETITION, 2019 TEAM CODE: TC-71 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. 34State of M.P. v. Nandlal, A.I.R. 1987 S.C. 251 (India). 35K.R. Lakshman v. Karnataka Electricity Board, (2001) 1 S.C.C. 442 (India). 36Ashutosh Gupta v. State of Rajasthan, (2002) 4 S.C.C. 34 (India). 37Heena Kausar v. Competent Authority, (2008) 14 S.C.C. 724 (India). 38State of A.P. v. Nallamilli, (2001) 7 S.C.C. 708 (India). 21 | P a g e MEMORIAL ON BEHALF OF RESPONDENT 8th RGNUL NATIONAL MOOT COURT COMPETITION, 2019 TEAM CODE: TC-71 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 MEMORIAL ON BEHALF OF RESPONDENT 8th RGNUL NATIONAL MOOT COURT COMPETITION, 2019 TEAM CODE: TC-71 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 172nd 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 MEMORIAL ON BEHALF OF RESPONDENT 8th RGNUL NATIONAL MOOT COURT COMPETITION, 2019 TEAM CODE: TC-71 2.9.6 That the fact that other countries, mostly western, have criminalized marital rape does not necessarily mean India should also follow them blindly. This country has its own unique problems due to various factors like literacy, lack of financial empowerment of the majority of females, mindset of the society, vast diversity, poverty, etc. and these should be considered carefully before criminalizing marital rape. 2.9.7 That criminal law is in the Concurrent List and implemented by the States. There is a vast diversity in the cultures of these states. It is necessary to implead the State Governments in the matter to know the opinion of these states to avoid any complications at a later stage. 2.9.8 The vast diversity becomes a non-issue when the Union wants to prohibit cattle slaughter or impose Hindi. Concepts like “vast diversity” and gender equality are like apples and oranges, impossible to juxtapo. 2.9.9 So 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. 3. THAT THE PERSONAL LIBERTY OF A WIFE UNDER ART.21 IS NOT ABSOLUTE AND IS SUBJECT TO RESTRICTIONS IMPOSED BY THE MATRIMONIAL PRIVACY. 3.1 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.43 43Rajesh Rajan v. C.B.I., (2007) 1 S.C.C. 70 (India). 26 | P a g e MEMORIAL ON BEHALF OF RESPONDENT 8th RGNUL NATIONAL MOOT COURT COMPETITION, 2019 TEAM CODE: TC-71 3.2 The right to life and personal liberty protected by Art.21 is not an absolute right but is a qualified right- a right circumscribed by the possibility or risk of being lost according to procedure established by law.44 3.3 The Hon’ble Court held that the right to life as guaranteed under Article 21 is not an absolute right and thus can be curtailed by following reasonable procedure.45 The requirements of reasonableness run like a golden thread through the entire fabric of fundamental rights.46 3.4 Thus, in the light of the judgment, Exception 2 to Section 375 IPC is provided by the legislature after taking into consideration the interests of the society at large. The main object of the impugned provision is to safeguard the institution of marriage and maintain peace and harmony in both the marital life and in the society at large. 3.5 THAT EXCEPTION 2 TO SEC. 375 WITHSTANDS THE TEST OF ART.13 3.5.1 The right provided under Art.21 is a constitutional command to State to preserve the basic human rights of every person. The word “except” restricts the right of the state by directing it not to fiddle with this guarantee unless it enacts a law which must withstand the test of Art.1347 of the Constitution.48 3.5.2 The spirit of Art. 13 provides that the court should interpret the constitutional provisions against the social setting of the country and not in the abstract. It is for this reason that the court presume in favour of the constitutionality of the statute because there is always a presumption that legislature understand and correctly appreciates the need of its own people.49 44 A.K. Gopalan v. State of Madras, A.I.R. 1950 S.C. 27 (India). 45Asha Ranjanv. State of Bihar and Ors., Chandrakeshwar Prasad v. Union of India and Ors, A.I.R. 2017 S.C. 1079 (India). 46Javed v. State of Haryana, A.I.R. 2003 S.C. 3057 (Indian). 4713. Laws inconsistent with or in derogation of the fundamental rights 48Kartar Singh v. State of Punjab, (1994) 3 S.C.C. 569. (India). 49Govt. of A.P. v. P. Laxmi Devi, (2008) 4 S.C.C. 720 (India).; A.I.R. 2008 S.C. 1640 (India).: K.K.Baskaran v. State of T.N, A.I.R. 2011 S.C. 1485 (India).; State of M.P. v. RakeshKohli, A.I.R. 2012 S.C 2351 (India).; State 27 | P a g e MEMORIAL ON BEHALF OF RESPONDENT 8th RGNUL NATIONAL MOOT COURT COMPETITION, 2019 TEAM CODE: TC-71 testimony can become a tool of abuse against husband, henceforth exception 2 to Sec. 375 provides for a vigilant provision in that regard. 3.8 LACK OF EVIDENTIARY VALUE ON PROOF OF MARITAL RAPE 3.8.1 It is humbly submitted that if the wife is legally allowed to bring in an action of rape against her husband, there are chances for the effort of the wife to go in vain as proving the marital rape cases would come with the same burden as that of non- marital rape cases. On the face of it the evidence so procured will lack the credibility and authenticity as what happens within the four walls of the house cannot be substantiated with full proof as to its genuity. 3.8.2 No provision regarding admissibility of evidence in cases of marital rape is provided under the Indian Evidence Act, 1872 as the marital rape is not an offence recognised under the Criminal law and also the position of the parties in such cases is not the same as other rape cases. Henceforth, the question whether the consent was given or not remains unclear and conviction of the husband cannot be based just on the sole testimony of the wife. 3.9 ALTERNATIVE LEGAL RECOURSES IN CASE OF SEXUAL VIOLENCE 3.9.1 It is humbly submitted that the arguments against the continuation of Exception 2 to Sec. 375 contends for the establishment of a system where legal recourse can be given to the wife who is the victim of the sexual violence in matrimonial relationship. However, that legal has already been provided under various laws and statutes to adequately redress the grievance of the wife so victimized. 3.9.2 Protection of Women from Domestic Violence Act, 2005 duly provides for the protective measures for the woman who are the victims of domestic violence.57 This includes the emotional, physical or sexual abuse as well. Henceforth the sexual violence faced by wife in matrimonial relationship is also covered under the ambit of 57Bhartiben Bipinbhai Tamboli v. State of Gujarat, Special Criminal Application (DV) No.5672 of 2016. (Gujarat HC). (India). 30 | P a g e MEMORIAL ON BEHALF OF RESPONDENT 8th RGNUL NATIONAL MOOT COURT COMPETITION, 2019 TEAM CODE: TC-71 Domestic Violence Act, 200558 and appropriate remedy can be given to the aggrieved person. 3.9.3 Similar remedy has also been provided under the ambit of criminal under Sec. 498-A of the Indian Penal Code, 1860.59 This section endeavors to prevent torture to aa married woman by her husband and by her relatives and to punish them for harassing or torturing the wife to coerce her or her relatives to concede unlawful demands of dowry.60 3.9.4 In addition to above mentioned remedies if the husband does carnal intercourse against the order of nature than he might be made punishable under Sec. 37761 of the Indian Penal Code, 1860. This clearly substantiate the point there are adequate alternate remedies available in case the wife is aggrieved of some sexual offences committed by her husband. Therefore, there is no need for introducing new laws which deals with matrimonial offense. [¶ 9]. Furthermore, it was observed by the Delhi HC that right to sexual intercourse is a part of conjugal rights and it is not judicially enforceable which means the consent to intercourse is applied. It was held that the court has neither the means nor the capacity to enforce its decree in the marriage bed and the husband may not by default face penal consequences if he indulges in sexual intercourse with wife. 62 [¶ 10]. Henceforth, 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. 58Section 3 of Domestic Violence Act, 2005. 59498A. Husband or relative of husband of a woman subjecting her to cruelty 60 B S Joshi v. State of Haryana, (2003) Cr LJ 2028 (SC) (India).; K Prema S Rao v. YadlaSrinivasa Rao (2003) 1 S.C.C. 217 (India). 61Unnatural offences 62Harvender Kaur v. Harmander Singh Choudhary, A.I.R. 1984 Del. 66. (India). 31 | P a g e MEMORIAL ON BEHALF OF RESPONDENT 8th RGNUL NATIONAL MOOT COURT COMPETITION, 2019 TEAM CODE: TC-71 4. THAT THE DENIAL OF SEX TO HUSBAND LEADS TO CRUELTY 4.1 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 4.2 In American Jurisprudence 2d, the term "mental cruelty" has been defined as under:"Mental Cruelty as a course of unprovoked conduct toward one's spouse which causes embarrassment, humiliation, and anguish so as to render the spouse's life miserable and unendurable. The plaintiff must show a course of conduct on the part of the defendant which so endangers the physical or mental health of the plaintiff as to render continued cohabitation unsafe or improper, although the plaintiff need not establish actual instances of physical abuse.” 4.3 SEXUAL INTERCOURSE AND MARRIAGE 4.3.1 Sex plays an important role in marital life and as observed by the Hon'ble Apex Court in Dastane (Dr. N.G.) Versus Dastane (Mrs. S.), it cannot be separated from other factors, which lend to matrimony a sense of fruition and fulfillment. Sex is a binding force to keep two spouses together and the denial thereof by one spouse to the other would affect mental health amounting to mental cruelty, especially in a case where the parties are young and have recently married after a prolonged courtship. 4.3.2 In the case of Parveen Mehta Versus Inderjit Mehta63, the foundation of the case of cruelty was based on the allegation made by the husband that right from the date one after the marriage, the wife was not prepared to cooperate with him in having sexual inter-course. Right from the beginning, the matrimonial relationship between the parties was not normal. The wife even refused to subject herself to her husband. 4.3.3 In another decision Rita V. Balkrishan Nijhawan64, the Delhi High Court observed thus: "the law is well settled that if either of the parties to a marriage being of healthy physical capacity refuses to have sexual intercourse, the same would amount to cruelty entitling the other to divorce. In our opinion, it would make no difference in 63 Parveen Mehta Versus Inderjit Mehta reported in 2002 (2) H.L.R. 513 (SC) (India). 64 Rita V. Balkrishan Nijhawan, A.I.R. 1973 Del 200 (India). 32 | P a g e MEMORIAL ON BEHALF OF RESPONDENT 8th RGNUL NATIONAL MOOT COURT COMPETITION, 2019 TEAM CODE: TC-71 of other as also either refusing to cohabit and / or denying to discharge his / her matrimonial obligation towards the other, it will be clear case of cruelty on the part of such spouse to whom such acts are attributable. 4.4.8 Where the spouses are of normal physical and mental health, number of persistent refusal or inability of the sexual act would amount to cruelty. The marriage without vigorous sexual activity is an anathema. Denial of sexual activity in marriage has an extremely unfavourable influence on a wife's or husband's mind and body and leads to deprivation and frustration. 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. 4.5 CRUELTY AS A GROUND OF DIVORCE AS PER HINDU MARRIAGE ACT, 1955 4.5.1 As per section 13 of the HINDU MARRIAGE ACT, 1955 it states that (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party (i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or [(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or] 4.5.2 In the case of Susarla Subrahmanya Sastry Versus S. Padmaksh72, the Division Bench of Andhra Pradesh High Court, while dealing with the term cruelty observed that relationship between parties irretrievably broken and because of non-cooperation and hostile attitude of respondent wife, appellant husband subjected to serious traumatic experience. It can safely be termed as 'cruelty' within meaning of Section 13(1)(ia) of Act. 72 Susarla Subrahmanya Sastry vs. Padmakshi II (2005) D.M.C. 707 (DB) (India)., 35 | P a g e MEMORIAL ON BEHALF OF RESPONDENT 8th RGNUL NATIONAL MOOT COURT COMPETITION, 2019 TEAM CODE: TC-71 PRAYER Wherefore in the light of facts of the instant case, written pleadings and authorities cited, it is humbly prayed before this Hon'ble Supreme Court that it may be pleased to hold, adjudge and declare: 1. THAT THE RESONABLE CLASSIFICATION HAS BEEN MADE UNDER ARTICLE 14. 2. THAT THE EXCEPTION 2 TO SECTION 375 DOES NOT VIOLATE THE FUNDAMENTAL RIGHTS OF THE WOMEN 3. THIS EXEPTION CLAUSE SHOULD MOT BE DECLARED UNCONSTITUTIONAL Or/And May pass any other order, which the court may deem fit in light of the facts of the case, evidences adduced justice, equity and good conscience. ALL OF WHICH IS RESPECTFULLY SUBMITTED Sd/- 36 | P a g e MEMORIAL ON BEHALF OF RESPONDENT 8th RGNUL NATIONAL MOOT COURT COMPETITION, 2019 TEAM CODE: TC-71 Counsel for the Respondents 37 | P a g e MEMORIAL ON BEHALF OF RESPONDENT