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moot memo relating to marital rape, Study Guides, Projects, Research of Law

moot memo relating to marital rape moot memo relating to marital rape

Typology: Study Guides, Projects, Research

2019/2020

Uploaded on 11/02/2022

mehak-rakhecha
mehak-rakhecha 🇮🇳

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Download moot memo relating to marital rape and more Study Guides, Projects, Research Law in PDF only on Docsity! TEAM CODE: “TC-77” 1ST DEO MANGAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2022 THE HON’BLE SUPREME COURT OF INDIA UNDER ARTICLE 32 AND 136 OF THE CONSTITUTION OF INDIVA IN THE MATTERS OF LIT FOUNDATION……………………………………………….………….PETITIONER v/s UNION OF INDIVA…………………. ……………………………………...RESPONDENT 1st Deo Mangal Memorial National Moot Court Competition, 2022 MEMORIAL FOR PETITIONER Page | 2 1st Deo Mangal Memorial National Moot Court Competition, 2022 ABBREVIATIONS SERIAL NO. ABBREVIATIONS TERM 1. & And 2. ¶ Paragraph 3. ¶¶ Paragraphs 4. S. Section 5. AIR All India Reporter 6. art. Article 7. cl. Clause 8. Const. Constitution 9. Ed. Edition 10. GNCTD Government Of National Capital Territory Of Delhi 11. Hon’ble Honorable 12. Ltd. Limited 13. n. Note 14. No. Number 15. Nos. Numbers 16. pp. Page Number 17. SC Supreme Court 18. SCC Supreme Court Cases 19. SCR Supreme Court Reports 20. v. Versus Page | ii 1st Deo Mangal Memorial National Moot Court Competition, 2022 STATEMENT OF JURISDICTION The Supreme Court of Indiva has been approached under writ jurisdiction under Article 32 of the Constitution of Indiva in the form of Public Interest Litigation. Page | iii 1st Deo Mangal Memorial National Moot Court Competition, 2022 STATEMENT OF FACTS 1. The Petitioner is a non-governmental organisation headquartered in the State of Dahelvi, the Capital of Indiva. The Petitioner has spent several years tirelessly working towards its goal of securing protection for the women of Dahelvi against domestic violence. To its credit, the petitioner has succeeded in rescuing many women who have been victims of domestic violence in the state. 2. In pursuance of its goal, the Petitioner regularly provides legal support to the woman in the State of Dahelvi with the intention of aiding their fight for justice. An opportunity to further this intention presented itself as the COVID-19 spread across Indiva. As a consequence of the pandemic, the Government of Indiva announced a complete lockdown throughout the country. During the period of lockdown, there was an exponential rise in the total number of cases of domestic violence. Victims regularly approached the Petitioner, seeking legal advice and help. 3. The Petitioner, upon an analysis of the cases of domestic violence before it, realised that most of them involved forceful intercourse by the husband in the absence of any will/consent of his wife. Noting this, the Petitioner sought to prosecute the husbands for rape under the country's penal laws, but failed to do so because of the existence of Exception II of Section 375 of the Indiva Penal Code. 4. Consequently, the Petitioner filed a PIL before the High Court of Dahelvi, challenging the above-mentioned exception and prayed for the criminalization of Marital Rape. The case challenging Exception II of Section 375 of the Indiva Penal Code was argued before the division bench of the High Court of Dahelvi. Unfortunately, the High Court of Dahelvi delivered a split judgment and failed to give a decisive decision on this point. 5. While the petitioner was embroiled in this legal battle, the High Court of Karmataka held that a husband can be prosecuted for raping his wife despite the immunity provided under the Indiva Penal Code. Around the same time, the High Court of Chhatisghar confusingly held that sexual intercourse by husband was not to be termed as rape, even if it was by force or in violation of his wife’s consent. Page | iv 1st Deo Mangal Memorial National Moot Court Competition, 2022 SUMMARY OF ARGUMENTS 1. The Petition is maintainable under law as the matter involves substantial public interest and is being filed in good faith as a Public Interest Litigation as permitted by law. 2. That the Exception to Section 375 should be struck down as: (1) There exists no presumption in favour of the constitutionality of Exception II to S. 375 of the IPC; (2) The striking down of Exception II to S. 375 of the IPC shall not lead to the formation of a new offence; (3) Exception II to S. 375 is not in consonance with the fundamental rights of women and goes against Articles 14, 15(1), 19(1)(a), and 21 of the Constitution; (4) It is the duty of this Hon’ble court to set Exception II to S. 375 of the IPC aside under Art. 13, without awaiting legislative action. Page | vii 1st Deo Mangal Memorial National Moot Court Competition, 2022 ARGUMENTS ADVANCED I. THAT THE PIL FILED BY THE FOUNDATION IS MAINTAINABLE UNDER LAW. 1. An Public Interest litigation has been seen by our Courts as a tool that can be used meticulously by the judiciary to ensure and safeguard public interest behind any public act or action. It is used as a means to ensure social justice is given to all people.1 The Petitioners Demand in this case is a just one, and one furthering women’s rights by asking for their fundamental rights to be enforced not just outside a marriage but within it as well. The Societal evil of not criminalizing marital rape has led to domestic abuse and inflicted suffering and trauma on millions of women across the years. 2. The Court must see the clear social issues being raised by the matter all involving basic human dignity. This petition is filed for the common societal interest, not the interest or benefit of any one individual. This Court itself has laid down that whenever there is someone suffering from Fundamental rights abuses, that’s when PILs should be used and hence we submit the petition is maintainable before this court under law.2 II. THAT THE EXCEPTION II TO S. 375 OF THE IPC SHOULD BE STRUCK DOWN. 3. The Petitioner is aggrieved by the Exception II to S. 375 of the IPC, which defines rape, says that sexual intercourse by a man with his wife is not rape, unless she is below 15 years of age. The Hon’ble Supreme Court had itself taken an emphatic view to the rationale behind the Petitioner’s demand when it laid down that “a rapist remains a rapist and marriage with the victim does not convert him into a non-rapist”.3 In holding so, the Apex Court had struck down a part of Exception II to S. 375 of the IPC, and the judgment was thus confined to rape by husbands of their minor wives only. It is argued that all female citizens are guaranteed the same constitutional rights to bodily integrity, equality and free expression, regardless of whether they are adult or minor wives. 4. Recently, the Hon’ble Supreme Court has also clarified that wives, who conceive out of forced sex by their husbands, shall also be protected as ‘survivors of rape’ within the 1 Ashok Kumar Pandey v. The State Of West Bengal (2004) 3 SCC 349. 2 Janata Dal vs H.S. Chowdhary And Ors. (1992) 4 SCC 305. 3 Independent Thought v. Union of India, (2017) 10 SCC 800, ¶73. Page | 1 1st Deo Mangal Memorial National Moot Court Competition, 2022 meaning of the Medical Termination of Pregnancy Act, 1971.4 The ratio adopted by the Courts in the aforementioned decisions should explicitly apply to all women, minor or adult, for all purposes and not just for limited objects of the Medical Termination of Pregnancy Act, 1971. In light of the above considerations, Exception II to S. 375 of the IPC deserves to be struck down in the first instance. 5. Regardless, the Petitioner shall establish the invalidity of the marital rape exception on three grounds: Firstly, there can be no argument as to the presumption of the constitutionality of Exception II to S. 375 of the IPC on the basis that it is a pre- constitutional provision (2.1); Secondly, striking down the marital rape exception shall not lead to the creation of a new offence (2.2); and lastly, Exception II to S. 375 of the IPC fails to pass Constitutional muster, since it is violative of Arts. 14, 15, 19 & 21 of the Constitution (2.3), and it is thus within the mandate of this Hon’ble Court to set it aside under Art. 13 of the Constitution, without awaiting legislative action (2.4). II.1 THAT THERE EXISTS NO PRESUMPTION IN FAVOUR OF THE CONSTITUTIONALITY OF EXCEPTION II TO S. 375 OF THE IPC. 6. It may be argued that Exception II to S. 375 of the IPC being a piece of pre-colonial legislation, there exists a  presumption of constitutionality in its favour. However, it is submitted that the Hon’ble Supreme Court has clarified on several occasions that, “there would be no presumption of constitutionality in a pre-constitutional law framed by a foreign legislature. The provision would have to be tested on the anvil of Part III of the Constitution”.5 This coupled with the fact that the marital rape exception leads to  an ex- facie infringement of a married woman's fundamental rights under Part III of the Constitution, shifts the burden of proof on to the State to demonstrate that the statute is constitutional.  7. In consonance with the ‘strict scrutiny test’, the onus lies upon the State to demonstrate that: first, the impugned provision is intra vires the Constitution; second, the infringement of women’s rights via the impugned provisions serves a compelling State interest; third, the infringement is proportionate; and lastly, the marital rape exception is the least restrictive measure that can be adopted to progress the State’s interest and the object it 4 X v. Principal Secretary, Health and Family Welfare Department, GNCTD, 2022 SCC OnLine Del 2628, ¶71. 5 Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676, ¶10. Page | 2 1st Deo Mangal Memorial National Moot Court Competition, 2022 15. Finally, it is also contended that expression of sexual desires including refusal to have sexual intercourse has been state by the courts as under the Freedom of speech and expression right that is embodied in our constitution under Article 19. This too is violated by the exception as it takes away a women’s right to say no to her husband for sexual intercourse. II.4 THAT IT IS THE DUTY OF THIS HON’BLE COURT TO SET EXCEPTION II TO S. 375 OF THE IPC ASIDE UNDER ART. 13, WITHOUT AWAITING LEGISLATIVE ACTION 16. Art. 13 of the Constitution enjoins constitutional courts to declare any law, which is in force in Indiva, whether enacted before or after the commencement of the Constitution, ‘void’ in case it is found to be inconsistent with or takes away and/or abridges the fundamental rights conferred under Part III of the Constitution. It is abundantly clear that Exception II to S. 375 of the IPC infringes upon several fundamental rights of the married women of Indiva. Unlike most other jurisdictions, Indiva has a written Constitution which lays great emphasis on fundamental rights. Exception II to S. 375 of the IPC is liable to be struck down as it does not align with the ethos of the Constitution as outlined under Part III. 17. Moreover, when examining the validity of a provision, the courts should apply the ‘effect test’ in order to determine whether an artificial distinction is created between different classes of persons.13 Exception II to S. 375 of the IPC  seeks to make a dubious distinction between husbands and non-husbands, insofar as perpetrators are concerned and likewise, between wives and non-wives with regards to the category of victims. Such a distinction should not be allowed to stand.  18. If a provision is found to be unconstitutional, then the courts must act in accordance with Art. 13 of the Constitution and holding that the matter is within the ken of the legislature is not a correct approach.14 It is also to be noted that recommendations have time and again been made to the Parliament, calling for the impugned provisions to be removed and the law to be amended, in consonance with constitutional and treaty obligations. However, the Legislature has failed to act. Article 13 read with Article 32 of the 13 Anuj Garg & Ors v. Hotel Association Of India & Ors, AIR 2008 SC 663. 14 Peerless General Finance and Investment Co. Ltd. v. Reserve Bank of India, (1992) 2 SCC 343, ¶¶48-50; Independent Thought v. Union of India, (2017) 10 SCC 800, ¶¶166-167. Page | 5 1st Deo Mangal Memorial National Moot Court Competition, 2022 Constitution empowers the Hon’ble Supreme Court to strike down laws that are inconsistent with or in derogation of fundamental rights. 19. The Hon’ble Supreme Court thus has an obligation to declare the marital rape exception to be unconstitutional, more so, when the Legislature has been lethargic. It is therefore submitted that this Hon’ble Court must set aside the marital rape exception in line with Art. 13 of the Constitution.  21. Page | 6 1st Deo Mangal Memorial National Moot Court Competition, 2022 PRAYER Wherefore in light of the issues raised, arguments advanced and authorities cited, it is humbly prayed that this Hon’ble Court may be pleased to adjudge and declare that: 1. The PIL filed by the Foundation is maintainable under law; and 2. The Exception II to S. 375 of the IPC is liable to be struck down as being unconstitutional. And pass any such order in the interest of justice, equity, and good conscience. ALL OF WHICH IS RESPECTFULLY SUBMITTED TC-77 COUNSEL FOR THE PETITIONER Page | x