moot memo relating to marital rape, Thesis of Law

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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 So, this shows the law doesn’t consider them as a single person, then the exception presuming the consent is bad and outdated.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.

3. Exception II Section 375 is violative of Art 19(1)(a) and Article 21 Constitution of India, 1950

Violates 19(1)(a)

Right of Wife to say NO Moral right of Married women to refuse unwanted forcible sexual Intercourse

Every person has a right to express his or her consent for sexual activity in the form or speech or expression under article 19(1)(a)

Exception II presumes that there is implied consent given by the wife to her husband which goes against the freedom of speech and expression. So before the act of sexual intercourse with either a married or married person, their should be an element of consent for it be legal as enumerated in section 375. If the law presumes such consent by the event of marriage, then that is bad law. Presumption must be subjective to each case and circumstances and must not be objective, and uniformly apply to all cases. Exception II makes a uniform presumption which is violative of art 19(1)(a)

Violates Art 21

Right to Privacy ----- Kharak singh v UP -------- Puttasamy v UOI Right to live with dignity Right to health (mental plus physical) Right against inhuman treatment Right of Women to be treated with decency and dignity

All the above has been violated by Exception II

Every person has their right to body autonomy and integrity, which is a part of Right to Privacy under Art 21. Right to Reproduce Right to choose partner Right to have child All these facets of privacy has been dealt previously by apex courts, so this judgment can follow those precedent with regard to a married women

4. Domestic Violence Act, PoCSO Act, Section 498 A IPC is no alternative to marital rape for wife

Domestic Violence is more or less a civil kind of enactment, where the remedy is in the form of compensation and Protection orders. PoCSO applies only when the child wide is a minor according to the section Section 498A deals with cruelty with a punishment of maximum 3 years which is in no way adequate for a marital rape So all the alternative remedy said by respondent is insufficient and inadequate.

It is pertinent to note the legislative intent behind the following provisions --- section 376(2) IPC, sections 5, 9 of PoCSO Act. All these deals with sexual offences in aggravated form or by a person who is in authority or dominant over the victim. If that’s the intention of legislature, Marital rape must find a place under section 376(2) because in India the practice is that wife will mostly settle in the in-laws house (atleast for the early days after marriage), which may not be her comfortable place. The husband and his parents will be in the dominant position in that house, which suppresses the voice of wife to refuse for sex--- ultimately she has no choice but to submit for sex. So, the court has been prayed to direct concerned authority to include marital rape under section 376(2) IPC

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.

4. Alternative penal Mechanism available, in substitution for 375/

The wife can invoke under section 498A IPC, Domestic violence Act, PoCSO in substitution for 375 The normal person and a husband can’t be placed at a same footing as against the wife in respect of sexual activities. A husband is a person who is not a stranger to wife, and penalizing both for a sexual act under same offence (375) is against the morality and defects the basic object of marriage institution If a forced sexual intercourse is committed to a wife husband, she can opt for the above given other provisions instead of 375 376, because he already has committed sexual intercourse with her with her consent legally; making the subsequent sexual act as an offence would be reluctant and immoral for institution of marriage

5. Bring Marital Rape as an offence goes against article 14 with respect to husband

Equals should be treated equally, unequal should be treated unequally Bring marital rape as an offence, will make married men on par with that of unmarried men as against the wife, which is against that principle, If revoked the exception, it husband’s right to equality will be affected.

And referring the house of in laws as a authoritative place and praying for the inclusion of martial rape under section 376(2) would be a bad argument The components of section 376(2) is different from marital rape and cant both cant be equated

A link or relation between offender and victim changes the intensity of offence.

Rape cannot be invoked as against the spouse of legal wed lock.

Theft --- Dishonest Misappropriation of Property Both these offences are similar in nature, but has different punishment, and are charged under different provisions of IPC, this is because theft happens between 2 strangers but later offence happens between 2 persons having a relation of trust.

The offenders in both the section cant be placed equally So a relation makes a change in offence

Likewise, the married man and unmarrieed man can’t be equally placed, because there is a difference in relationship of 2 persons with that of wife. That’s again evident from the provision of section 376B(sexual intercourse of husband during separation) applicable only for married men

Relevance of Section 114A IEA It deals with presumption as to absence of consent of women in the offence of rape If exception II is removed and marital rape is made as an offence, then it would become dangerous as against the husband, and may be misused by the wife. This coupled with section 114A IEA (SHALL PRESUMPTION), will become deadly weapon against husband and cause strain in the family institution

My understanding why has to Appeal to SC does not lie against the split verdict of HC

Reason 1 Letter Patents (21/3/1919) Clause 26: if there is difference in opinion between 2 judges of division judge, that split verdict must be given 3rd^ judge for this opinion, and his opinion is final

Section 7, Delhi HC Act 1966

Delhi HC Rules Rule 10: Chapter IV Part II Difference in opinion --- clause 26 of letter patent applies

On 6/8/1861 latter patent of delhi was pari materia made for Bombay and Madras HC, Clause 36

Reason 2 Judgement is the outcome of majority opinion What is the majority opinion in this split verdict of HC?

Since they are equally divided in opinion, neither of those opinion forms a majority. They both remains to be dissenting opinion until a 3rd^ judge is brought in So dissenting opinion cant be a judgment

Appeal lies only against judgment or order or decree. Not against the opinion.

No Appeal lies

BUT

RESEARCH NEED TO BE DONE AS TO WHETHER HC HAVE ANY EXTRA ORDINARY

POWER TO INVOKE 134 A AND 132 CONSTITUTION TO PERMIT FOR APPEAL TO SC

ON THE SPLIT VERDICT…..

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As regards to the international conventions and instruments, u can cite them to support ur argument,

CEDAW Art 1 (India is signatary) CEDAW operational Protocol (India is not a signatory)

ICCPR 1966 art 26

UDHR 1948 articles 1 and 5

Refer world’s women report

Doctrine of Implied Consent Doctrine of Coverture --------------------- Sir Mathew Hale

International trends as to marital rape

Polland 1st^ country 1939 to recognize marital rape as offence Australia 1st^ common law country 1976 to recognize marital rape as offence

Opinion of New York court of appeal (1984) on marital rape UK House of lords 1991 on marital rape

All these u can refer in these blog Justice JS VErma Committee

REGARING THE PRAYER:

For petitioner There are many laws with empowers the status of women with the support of art 15(3), still women in home is deprived of her fundamental right over her body in this matrimonial home.

There are 2 relation between law and society

------------ one is the society changes the law ,(in case of live in relationship, abortion, )

------------ another is law changes the society, (abolition of sati, protection sc st and other weaker comminities )

There are judicial precedents that empowered women status

Like adultery, right on maintenance, right on succession of ppty, right on abortion (recently)

Following these, this current case must make marital rape as offence by using the tool of judicial activism

(Followed by ususal prayer)

For respondent:

Parliament has the exclusive power to enact or amend laws, judiciary must restrict itself from the policy matters of the government and must respect the concept of Separation of powers mentioned under Art 50, and respect the functioning of other 2 organ

Infringing the functions of others will amount to judicial over reach

Family forms the basic unit of society. Law is for the society. No organ or law has the power to infringe or involve into the privacy of family, that’s why we 2 ours 1 is still a policy and not a law in india

(Followed by ususal prayer)