moot memo relating to marital rape, Thesis of Law

Download moot memo relating to marital rape and more Thesis Law in PDF only on Docsity! ISSUES AND ARGUMENTS FOR PETITIONER 1. Non applicability of doctrine of Coverture and doctrine of implied consent in a matrimonial relationship In many precedents, the court have held Marriage can no more be considered as a contract and it is a sacrament between 2 families. Though the universal purpose of coming together and marrying is for reproduction. But it doesn’t mean that one spouse have perpetually consented to sexual activity to the other spouse. Everyone has their own right to bodily integrity and autonomy. Marriage can no longer be considered as a universal license for sexual activity, ignoring the consent (express) So, Doctrine of Implied Consent no more apply in martial relationship. Minor Contract is void (Indian Contract Act) Minor Marriage is voidable (Hindu marriage Act) So, from this we can infer how the parliament intended the institution of marriage to be Marriage is not a contract, id it was a contract, minor marriage contract would have been void at the instance it self. But it is made voidable, considering the holiness of marriage and family. Coming to Doctrine of Coverture, though it was once relevant, in this contemporary era it is out of applicability. There are many judgments empowering women (sabarimala case, adultery, abortion, right to succession, etc. ), and it would be wrong to still consider women to be the property of parents, guardian and husband as well. Law doesnot see husband and wife as a single person and it cant presume their mutual consent for sex between them. both are separate and distinct natural person under law and they have their own personal rights and desires, law cant club both. This is evident from Section 120 IEA and even in 122 IEA, the disclosure of matrimonial communication is permissible by any of the spouse if he or she has initiated a suit or proceeding against the other spouse. So, this shows the law doesn’t consider them as a single person, then the exception presuming the consent is bad and outdated. 2. Exception II of Section 375, IPC 1860 is violative of article 14 and 15(1) Constitution of India, 1950. If any makes discrimination and goes against the right of equality u/a 14, it should satisfy the 2 conditions to be constitutionally valid. --- Intelligible Differentia (Reason for making the difference between the 2 classes) --- Rational nexus between the difference made and the object or purpose which is to be achieved. Exception II – the difference has been made between married women and unmarried women By this, the married women cant exercise her art 19(1)(a) and right to privacy and also invoke the offence under section 375 IPC, against her husband-----which a unmarried and single women can exercise and invoke. Argument of respondent that intelligible differentia is created by the act of marriage is improper because acquiring a position or relationship does not give licence to a person to commit an offence or decriminalizes an act from being an offence. So, likewise, a man who has been married to a women, being in a position as a husband, doesnot allow him to do sexual activity against her consent. Immunity only in procedural aspect not in substantial aspect One can be accused for murder or theft, if he is ordinary person or special VIP person or even if he is the President, he can still be accused. This implies there is Uniform Criminal Code in India. The only immunity that is given to special person or statutory or constitutional person is that they have a separate criminal procedure for that concerned offence, but no immunity for the substantive aspect. One may ask, when a army person is committing a murder in his service and her is not tried for murder. This is saved by art 21, procedure established by law. Whereas here too the husband can be said to be saved by procedure established by law (exception II) but that procedure established under exception II law is again irrational and against constitutional. Again exception II 375, IPC is against art 15 (1) which says the state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. ISSUES AND ARGUMENT FOR RESPONDENTS (UNION OF INDIA AND OTHERS) 1. Application of Doctrine of Implied consent The main purpose of institution of Marriage does not stop with the concept of Reproduction but also for the purpose of pleasure, in this modern era. Once the marriage occurs, both the parties have morally and mutually come to agreement which includes, both should respect each others family members, both should treat each other as legal wedded couple as against the society and also to aid, support the other. This aid and support includes the act of sex. It would be reluctant to refuse and restrict for sex with the legally wedded spouse. So marriage comes with the doctrine of implied consent Law sees husband and wife as a single person , for example 122 IEA (Protection from disclosure of Communication happening between the spouses). So, involving into the sexual relation of spouse would create a strain in the matrimonial relation. Considering the holiness of Family and Marriage as an Institution. 2. Not Violative of Art 14 and art 15(1) The institution of marriage creates a intelligible differentia between married and unmarried person. -----Marriage confers the persons with totally new position or status of being married in the society. Only a child born out of a legal wedlock is legitimate and, a child born not by the legal marriage is illegitimate ----- Section 498 deals with criminal elopement which can be committed only if the women involved is married, and 498 not apply to elopement of unmarried women ----- maintenance to wife under section 125 CrPC applies on a man only if he is married, but not to unmarried man or divorced man Again if the wife who receives the maintenance under 125 remarries, the maintenance from her husband ceases. These provisions definitely show that marriage creates an intelligible differentia. And the difference made between married person ad unmarried person is sound. Coming to the second component of Art 14 The purpose of discrimination is to mutually consent for sex in the wedlock. The sex is for reproduction and that’s the very purpose of marriage. So the discrimination made between married and unmarried person achieves the purpose for which the law is made ARTICLE 15(1) Prohibits the discrimination on grounds of sex, religion, race, caste, PoB, but the discrimination under exception II is only on the marital status and not violates 15 3. Not Violates Art 19(1)(a) and Art 21 Though exercise of freedom under 19(1)(a) is limited by exception II, the same freedom comes with some reasonable restriction under 19(2) – morality Freedom of speech and expression can be limited by the concept of morality, As a universal morale, the main object of marriage is to have sex and reciprocate. So, keeping a husband and other man on equal level to the wife is against morality. And penalizing marital rape is again immoral. So morality as a reasonable restriction under 19(2) saves the immunity under exception II thereby not making the latter unconstitutional as against 19(1)(a) Article 21 Right to privacy is not only conferred on a wife, but also on the husband and privacy is a concept that also relevant to a family, and wife and husband are the core part of family, affecting the privacy of one spouse, affects the privacy of the family as a whole and vice verse, involving into the privacy of family affects the privacy of the spouse here the privacy of family is act of sexual intercourse, making it as a marital rape affects the privacy of family and inturn affects the right to privacy of husband of not freely engaging in sexual intercourse under art 21 all those bundle of rights that is applicable to wife under section 21 also equally applies to husband also. If marital rape is made as offence by revoking exception II, the right of privacy of husbandwill be affected, in addition to the holiness of family institution. If wife privacy is affected, then why exception must be sustained? Holding exception affects wife Revoking exception affects husband Now it is important to note the impact on family as a whole by the revocation of exception. If revoked, the purpose of marriage will be defeated, so exception should be upheld. Family is considered to be the basic unit of a society, chaos in family leads to chaos in society. So development of values of family is important. Exception II tries to bind the values of a family.