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

Download moot memo relating to marital rape and more Study Guides, Projects, Research Law in PDF only on Docsity! 1 ____________________________________________________________________________ 1ST DEO MANGAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2022 ____________________________________________________________________________                       TEAM CODE: T15    ____________________________________________________________________________ BEFORE THE HONORABLE SUPREME COURT OF UNION OF INIDIVA ____________________________________________________________________________ PUBLIC INTEREST LITIGATION ____________________________________________________________________________ W.P. (C) NO. ____ OF 2022 UNDER ARTICLE 32 OF THE  INDIVAN CONSTITUTION ____________________________________________________________________________ IN THE MATTER BETWEEN LIT FOUNDATION & Ors……….……………………..PETITIONER V. UNION OF INDIVA……………………………….…….RESPONDENT ____________________________________________________________________________ UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION JUSTICES OF THE SUPREME COURT OF INDIVA ____________________________________________________________________________ MEMORANDUM ON BEHALF OF THE PETITIONER TABLE OF CONTENTS Sr. No Particulars Page No. 1. Table of content 2-3 2. Index of Abbreviations 4-6 3. Index of Authorities 7-10 4. Statement of jurisdiction 11 5. Statement of fact 12 6. Statement of issue 13 7. Summary of argument 14 8. Argument advanced--- Whether the Doctrine of Coverture and Doctrine of implied consent in a Matrimonial relationship would still be applicable in the 21st century or not? 1.1 Non-Applicability of Doctrine of Coverture 1.2 Non-applicability of Doctrine of Implied consent 1.     Whether the Exception II of Section 375, IPC 1860 is violative of Article 14 and 15(1) Constitution of India, 1950? 2.1 Right to equality 2.2 Immunity only in procedural law and not in substantial 2.3 Violation of Article 15 of the constitution of Indiva 1.     Whether Exception II of Section 375 is Violative of Article 19(1)(a) and Article 21 Constitution of Indiva, 1950? 15-31 2 14. No. NUMBER 15. Viz. NAMELY 16. Ors. OTHERS 17. ¶ PAGE 18. Pvt. Ltd. PRIVATE LIMITED 19. r/w READ WITH 20. SCC SUPREME COURT CASES 21. SCR SUPREME COURT REPORTER 22. Supp. SUPPLEMENT 23. SC SUPREME COURT 24. Sec SECTION 25. i.e THAT IS 26. U/S UNDER SECTION 27. UOI UNION OF INDIVA 5 28. V./Vs. VERSUS 29. w.r.t WITH RESPECT TO 30. MRE MARITAL RAPE 31. POCSO PROTECTION OF CHILDREN FROM SEXUAL OFFENCES 32. DV DOMESTIC VIOLENCE ACT INDEX OF AUTHORITIES 6 BOOKS REFERRED S.No PARTICULARS 1. P.S.A. Pillai- Criminal Law 13th edition 2. CONSTITUTION OF INDIA by- Dr.Subhash C.Kashyap 3. Ratanlal & Dhirajlal- The Indian Penal Code 35th edition 4. Constitution Of India by V N Shukla 5. Black’s Law dictionary, 9th edition, edited by Bryan a.garner STATUTES REFERRED S.No PARTICULARS 1. CONSTITUTION OF INDIA, 1950 2. CRIMINAL PROCEDURE CODE, 1973 3. INDIAN PENAL CODE, 1860 5. INDIAN EVIDENCE ACT, 1872. 4. DOMESTIC VIOLENCE ACT, 2005. WEBSITES REFERRED 7 STATEMENT OF JURISDICTION The Petitioner humbly submits to the jurisdiction of this Hon’ble Supreme Court of IndiVa by filing a PUBLIC INTEREST LITIGATION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIVA FOR PASSING OF AN APPROPRIATE WRIT ORDER OR DIRECTION DECLARING EXCEPTION 2 OF SECTION 375 OF IPC,1860, TO BE ARBITRARY, UNREASONABLE, UNCONSTITUTIONAL, VIOLATIVE OF ARTICLE 14, 15, 19 21 AND OTHER INHERENT HUMAN RIGHTS BY CONSTITUTION OF INDIVA. Therefore the jurisdiction of this court, which protects the citizen of Indiva from any violation of their fundamental right, is applicable in the present case and the court can hear and grant subsequent directions/orders/writs in regard to subject matter of the writ petition filed by the petitioner, under the Article 32 of Constitution of Indiva1. 1 32. 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 10 STATEMENT OF FACTS ● LIT Foundation (hereinafter referred to as foundation) is Headquartered in the State of Dahelvi, the Capital of Indiva. The Foundation is a Non-government organisation that works for the protection of women against domestic violence and rescued many women, victims of domestic violence in the state of Dahelvi. The foundation also provides legal support in their fight for justice. ● As COVID-19 ravaged Indiva, the Government of Indiva announced a complete lockdown throughout the Nation. During the period of lockdown, the cases of domestic violence have increased exponentially. ● Victims have approached the foundation for legal help. The foundation found that in many cases of domestic violence there was forceful intercourse by the husband against the will/consent of his wife. The foundation failed to prosecute the husbands for rape because of exception II of Section 375 of the Indiva Penal Code. ● The foundation filed a PIL before the High Court of Dahelvi, challenging the above- mentioned exception and pleaded for the criminalization of Marital Rape. The High Court of Dahelvi clubbed the PIL and petition of Mr Furkan and subjected it to the outcome of the case. The case challenging exception II of Section 375 was argued before the division bench of the High Court of Dahelvi. The High Court of Dahelvi delivered a split judgment and failed to give a decisive decision on this point. 11 ● Meanwhile, the High Court of Karmataka (Karmataka is a State of Indiva) held that a man can be prosecuted for raping his wife despite the immunity provided under the Indiva Penal Code. ● Given the uncertainty on Marital Rape, The foundation has filed a PIL before the Hon'ble Supreme Court of Indiva pleading to criminalise marital rape and read down the exception provided under the IPC, the Union of Indiva is contesting against it. STATEMENT OF ISSUES 1. Whether the Doctrine of Coverture and Doctrine of implied consent in a Matrimonial relationship would still be applicable in the 21st century or not? 2. Whether the Exception II of Section 375, IPC 1860 is violative of Article 14 and 15(1) Constitution of India, 1950? 3. Whether Exception II of Section 375 is Violative of Article 19(1)(a) and Article 21 Constitution of Indiva, 1950? 4. Whether Domestic Violence Act, POCSO Act and Section 498 A IPC shall be treated as an alternative to marital rape for wife? 12 doctrine, a married woman had no legal rights of her own as her legal rights got subsumed by those of her husband. The doctrine has been described in a recent Supreme Court judgment, Joseph Shine v. Union of India – the Adultery judgment where it was held that the Constitution which treats women as equal to men and considers marriage as an association of equals and not as a fiefdom of a husband over his wife. The doctrine has not been accepted in Indiva.2 In Indiva, a married woman has an independent existence and has her own legal rights. She is not subordinate to the husband in any respect whatsoever. Unlike the woman of the times when the law of coverture applied, the woman under the Indivan Constitution is free to enter into contracts, free to work or carry on any business or profession, free to buy property, free to vote and stand for elections, etc. whether she is married or unmarried. The wife is not treated as her husband’s chattel. Under the Indivan Constitution, the woman, whether married or not, has autonomy over herself and her choices, decisions and actions. Exception 2 treats the wife as subordinate to her husband and subjects her right to sexual autonomy and her right to privacy to her husband’s whims. The doctrine behind Exception 2 is incompatible with our Constitutional morality and is violative of natural inherent rights of the wife including the right to live with dignity, the right to personal liberty, the right to sexual autonomy and bodily integrity, the right to reproductive choices, the right to privacy and even the freedom of speech and expression, rights which are guaranteed and protected by the Constitution as fundamental rights under Articles 14, 15, 19, 21, etc. and recognised in Supreme Court judgments3. In the case of Farhan vs State & Anr. one of the judges had emphasised on “222.1. But before all this is done, a married woman's right to bring the offending husband to justice needs to be recognized. This door needs to be unlocked; the rest can follow. As a society, we have remained somnolent for far too long. We can’t rely on this doctrine anymore.”4 Doctrine of Coverture, though it was once relevant, in this contemporary era it is out of applicability. There are many judgments empowering women like famous case of Sabarimala5, Joseph Shine case where adultery was struck down6, The recent judgement by the SC on Abortion held that the 2 Joseph Shine v. Union of India reported at (2019) 3 SCC 39. 3JAIDEEP BHANUSHANKAR VERMA v. UNION OF INDIA, R/WRIT PETITION, (PIL) NO. 146 of 2021. 4Farhan vs State & Anr, W.P.(C) 284/2015 & CM Nos.54525-26/2018. 5Indian Young Lawyers Association vs The State Of Kerala, W. P (CIVIL) NO. 373 OF 2006. 6Joseph Shine vs Union Of India on 27 September, W.P. (CRIMINAL) NO. 194 OF 2017. 15 artificial distinction between married and unmarried women was not constitutionally sustainable7 and lastly, right to succession by the 2015 amendment to Hindu Succession Act,19568 and amongst all this, it would be wrong to still consider women to be the property of parents, guardians and husbands as well still. Law does not see husband and wife as a single person and it can’t presume their mutual consent for sexual intercourse between them. They both are separate and distinct natural persons under law and they have their own personal rights and desires, law can’t club both. This is evident from Section 120 Indivan Evidence Act, 1872 which states that in criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness9 and even in Section 122 Indivan Evidence Act, 1872 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 spouse10. So, this shows that the law doesn’t consider them as a single person, then the exception presuming the consent is non-applicable and outdated. 1.2 NON-APPLICABILITY OF DOCTRINE OF IMPLIED CONSENT: So far, we've established that marital rape does not appear to exist in Indivan law. Consent is the most important factor to consider when discussing rape. This factor, however, vanishes when one is hidden behind the iron curtain of marriage. After marriage, consent in sexual intercourse is presumed, giving rise to the concept of implied consent. Marital rape is defined as non-consensual sexual intercourse with one's own spouse in a marital relationship. The second exception to Section 375 of the Indivan Penal Code of 1861 states that sexual intercourse between a man and his wife over the age of 18 does not constitute rape. This exception stems from the Victorian 'Doctrine of Coverture,' which granted women non- independent legal status. This has been accompanied by a rigidly patriarchal culture, with family as the most important social unit, which has ensured that marital rape has always been socially acceptable. 7https://timesofindia.indiatimes.com/topic/marital-rape. 8Hindu Succession Amendment Act, 2015. 9IEA, sec. 120, 1872. 10IEA, sec. 122, 1872. 16 In many precedents, the court has held that marriage can no longer be considered as a contract and it is a sacrament between two families as seen in one of the cases, Venkatacharyulu v. Rangacharyulu, the court observed: “There can be no doubt that marriage is a religious ceremony. According to all the texts, it is a sacrament, the only one prescribed for a woman and one of the principal religious ties prescribed for the purification of the soul. It creates a religious tie when once created, cannot be untied. It is not a mere contract in which a consenting mind is indispensable.11 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 over 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 longer shall be applicable in martial relationship. For instance, when we look at Contracts by Minor to be held void (Indian Contract Act) 12 and Minor Marriage is voidable (Hindu marriage Act)13 which helps us to give a clear picture how the parliament intended the institution of marriage to be Marriage is not a contract, if it was a contract, a minor marriage contract would have been void at the instance itself and it is made voidable, considering the holiness of marriage and family. Hence why the petitioner emphasis on the consent being one of the major factor or element of rape, the husbands shall not be given this free pass to intercourse with their wife against their will. Since consent plays an important role to classify whether the intercousre constitutes an offence or not, it shall not exempt the married women out of it just because of their marital status. The rights of women shall outweigh the importance of the institution of marriage because they’re not safe guarded, eventually the institution of marriage falls. 2.Whether the Exception II of Section 375, IPC 1860 is violative of Article 14 and 15(1) Constitution of India, 1950? The Counsel on behalf of the Petitioner humbly submits that the impugned provision (ie.,Exception II of Section 375 IPC), is violative of Article 14 read with 15(1) of the 11Venkatacharyulu v. Rangacharyulu, (1891) ILR 14 Mad 316. 12Indian Contract Act, 1872. 13Hindu Marriage Act, 1955. 17 because acquiring a position or relationship should 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, does not allow him to do sexual activity against her consent. While marriage may be a legitimate basis of classification for certain reasons (imposing special rights and duties between parties to the marriage, or providing immunity from providing evidence against one’s spouse), it can never be a legitimate basis for exempting a party to the marriage from the criminal law. Indeed, under Sections 354, 377, 302, 323 IPC18 there is no such exemption – if sodomy, sexual assault, murder and simple hurt is not de- criminalised in marriage, there is no reason rape should be. Jurisprudence on Article 14 and the mandatory criteria for a constitutionally valid classification/intelligible differentia is laid down by the Apex Court as below: In the case of Anuj Garg & Ors. Vs. Kotlal Association of India and Ors, the Hon’ble Supreme Court at para 47 stated that: “No law in its ultimate effect should end up perpetuating the oppression of women. Personal freedom is a fundamental tenet which cannot be compromised in the name of expediency unless there is a compelling state purpose. Heightened level of scrutiny is the normative threshold for judicial review in such cases”. The Apex court cited the approach of European Court of Human Rights to review a discriminatory statue. At para 50, the Court stated that: “The test to review such a Protective Discrimination statute would entail a two pronged scrutiny: (a) the legislative interference (induced by sex discriminatory legalisation in the instant case) should be justified in principle. (b) the same should be proportionate in measure. Hence it was noted that personal freedom cannot be compromised in the name of expediency until and unless there is a compelling state purpose.19 It is stated that there can be no compelling state purpose in treating rape victims differently based on marital status and their prior relationship to the rapist. It is to be noted that Sections 354 and 509 on verbal sexual assault, Section 323 on simple assault, Section 302 on murder, do not make any differentiation between married murder sexual assault and sexual harassment 18IPC, Sec. 354, 377, 302 & 323, 1860. 19Anuj Garg & Ors. Vs. Kotlal Association of India and Ors. (2008) 3 SCC (1). 20 victims and unmarried or separated victims. The differentia therefore between the above mentioned category does not have a rational nexus to the goal of criminal laws prohibiting sexual violence, which is to protect physical integrity of women. 2.2 IMMUNITY ONLY IN PROCEDURAL ASPECT NOT IN SUBSTANTIAL: As per the substantial laws 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 a 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 the constitution and hence, it shall be held unconstitutional which is what is prayed before this superior court. 2.3 VIOLATION OF ARTICLE 15: Continuance of MRE, violates Article 15 of the Constitution since it triggers discrimination against women based on their marital status. The said exception impairs and abstain the power to negotiate contraception, to protect themselves against sexually transmissible disease and to seek an environment of safety, away from the clutches of her abuses. Article 15 (1): The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. The Exception II of Section 375 assumes non- retractable consent of women to sexual intercourse upon marriage. This assumption reinforces various gender stereotypes leading to the subordination of women and hence is violative of Article 15 of the Constitution on the grounds of sex (ie., gender). The Apex Court in NALSA vs Union of India, made clear that the specific categories in Article 15 are not exhaustive, and include gender identity, for instance20. As such marital status of women may be read into ‘sex’, and may be recognized as a ground for sexual and gender non-discrimination. Hence it goes without saying that in the holy sacrament of marriage between men and women, the women are gasping for their consent to be heard. Article 20NALSA vs Union of India 2014 (5) SCC 43824. 21 15(3); Nothing in this article shall prevent the State from making any special provision for women and children. Womens consent and voices are being oppressed in marriages and substantive laws but in Article 15(1) and 15(3) of the Constitution are obtainable to prevent any such violation of their fundamental rights . The Supreme court in the case of Anuj Garg relied with approval on the judgment of and the need for an “intrusive multi-stage review in sex discrimination statutes”. the Apex Court stated : Sex classifications may be used to compensate women “for particular economic disabilities [they have] suffered,” to “promote equal employment opportunity,” to advance full development of the talent and capacities of our Nation’s people but not for distrimination against them, that goes against Article 15(3). Such classifications may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women and why we see the need for reforms as to the need of the hour right now. Hence the predicament lies in the issue that married women are being discriminated for being the weaker sex whose consent for sexual intercourse is not given due consideration under the substantive laws of the Indiva Penal Code. The Union of Indiva has hence failed to show that the discrimination meted out to victims of rape by the husband is based upon a sound, rational and logical reason in tune with todays world of equal rights of men and women. 3. Whether Exception II of Section 375 is Violative of Article 19(1)(a) and Article 21 Constitution of Indiva, 1950? The counsel most humbly states that Exception II of Section 375 violates the most integral right of a woman or to be more specific, a “married woman” which has been guaranteed and protected under Art.19(1)(a) and Art.21. 3.1 VIOLATION OF ARTICLE 19(1)(a): We live in the era where the Sex-worker has been invested with the power to say “NO” by the law but not a married woman. Women in most parts of the world are treated as individuals where they are free to enter into contracts in their own right but when it comes to sexual communion with their husbands, their consent counts for nothing. For instance, In a gang rape involving the husband of the victim, the co-accused will face the brunt of the 22 It is humbly submitted that a woman has her own rights to protect her body, her integrity, and her privacy, without her consent against her will any man who does such an act is punishable. No person has the right to enjoy her without any regard to the question of safety to her. This Hon’ble Supreme Court in State of Maharashtra v. Madhulkar Narayan this Hon'ble Court held that “every woman is entitled to sexual privacy and it is not open for any person to violate her privacy as and when he pleased. Every woman is entitled to protect her person if there is any attempt to violate it against her wish and that same protection must be given here also.”29 It is also contended “that a woman is not a man's plaything and he cannot take advantage of it in order to satisfy his lust and desires by fooling a woman into consenting to sexual intercourse simply because he wants to indulge in it.” It is humbly submitted that in the case of R v. Clarence it was held that “if a wife lawfully refused sexual intercourse and if the husband imposed it by violence then he would be punishable for the crime committed.” In plethora of cases the Hon’ble Supreme Court has declared that rape is a gross violation of the woman’s privacy and personal liberty. In Chairman Railway Board v. Chandrima Das it was held that “rape” amounts to the violation of the Fundamental Rights guaranteed under Art.21 of the Constitution and married women must also be protected under that. The jurisprudence of Article 21 is the storehouse of all forms of rights, thus, attracting a wide definition of life to protect all forms of human life and liberty. However, there is a blatant violation of Article 21 in terms of marital rape.30 3.2.2 RIGHT TO PRIVACY (SEXUAL PRIVACY): Right to privacy finds its place under the wide interpretation of Article 21 as recognized by the judiciary. The right to be left alone also forms a part of this right which includes the free will to sexual intercourse as well and the marital status of woman can also not retract the fundamental right to sexual privacy from her. In the following cases, Kharak Singh v. State of U.P. ; Govind v. State of Madhya Pradesh, ; Neera Mathur v. LIC etc, the Supreme Court has perceived that a right to privacy is intrinsically ensured under the extent of Article 21. The Right of Privacy under Article 21 incorporates a right to be allowed to sit unbothered and not aggravated. Any type of intense sex damages the right of protection, sexual security. It is presented that the teaching of 29 State Of Maharashtra And Another vs Madhukar Narayan Mardikar, AIR 1991 SC 207, 1991 (61) FLR 688, JT 1990 (4) SC 169, (1991) IILLJ 269 SC, 1990 (2) SCALE 849, (1991) 1 SCC 57, 1991 (1) UJ 109 SC. 30 R v Clarence (1889) 22 QB 23. 25 marital exclusion to rape damages a wedded lady's entitlement to protection by driving her to go into a sexual relationship without wanting to. In the case of State of Maharashtra v. Madhkar Narayan31 the Supreme Court has held that every woman is entitled to her sexual privacy and it is not open to for any and every person to violate her privacy as and whenever he wished. In the landmark case of Vishakha v. State of Rajasthan the Supreme Court extended this right of privacy in working environments also. Further, along a similar line we can translate that there exists a right of privacy to go into a sexual relationship even inside a marriage. Subsequently by decriminalizing rape inside a marriage, the marital exception teaching damages this right of privacy of a wedded lady and is consequently is illegal.32 Every woman is entitled to sexual privacy and no man can force their sexual desire on any woman according to their whims and fancies. By decriminalizing marital rape, the perpetuators get immunity from their very own heinous act, thus invading on the rights of sexual privacy of women within the institution of marriage and vitiating the very principle of Article 21 under the Constitution of Indiva. 3.2.3 RIGHT TO BODILY SELF-DETERMINATION: This right owes its inception to the wide interpretation of Article 21 of the Indivan Constitution. The consent and will to have sex is regarded as one of the most personal and private choice of an individual irrespective of the marital status. So, any law interfering or meddling with the right of bodily self-determination is regarded as Unconstitutional. 3.2.4 RIGHT TO GOOD HEALTH UNDER ARTICLE14 AND ARTICLE 21 Article 21 of the Indivan Constitution ensures the right to good health. The exemption to marital rape is prima facie violating the right to good health doing no good to wives and harming their psychological and physical wellbeing. In Suchita Srivastava v. Chandigarh Administration the right to make a reproductive choice was equated with personal liberty under Article 21 of the Constitution, privacy, dignity and bodily integrity. It includes the right to abstain from procreating In paragraph 22.33 There is also a very good possibility of women 31 Id. 32. 32 Vishakha v. State of Rajasthan, (1997) 6 SCC 241. 33 Suchita Srivastava v. Chandigarh Administration, A.I.R. 2010 S.C. 235. 26 losing themselves to sexually transmitted diseases (STD). The marital exemption to rape is a loophole which inbreeds the future criminals of society and is unconstitutional. The S.C has declared that the laws which are subject to the scrutiny of Article 14 and Article 21 must qualify the test of reasonability to operate within the framework of the Constitution. Even if the doctrine of marital rape surpasses the test of ‘reasonability’ it still has to pass the muster of ‘just, fair and reasonable’ law in order to recognized as constitutional. The petitioner humbly contends that the sanctity of human life is probably the most fundamental of the human social values and it is recognized by the internationally recognized statements of human rights. It is essential in marital rape that direct and circumstantial evidence be taken into consideration. Jury reports and forensic reports are crucial in proving marital rape. Further if the court is not satisfied, it may search for evidence which would lend assistance to her testimony. Further, Art.253 of the Constitution provides that the Parliament can make any law implementing any treaty or convention made in an international body.34 Therefore, the Court can very well take into consideration the recommendations made by the UNCEDAW. Justice Verma Committee formed after the Nirbhaya’s case report recommending changes in the marital rape and keep it in consonance with the UNCEDAW recommendations.35 Women's right to make reproductive choice,health, privacy, and live with dignity and bodily integrity has not only been recognized under the constitution but also under Art. 1 (equality in dignity), Art. 2 ( rights and freedoms), Art.3 (right to life, liberty and security of person) and Art. 7 (without any discrimination to equal protection of the law) under the universal declaration of human rights. 36 The aforesaid provision i.e., the impugned provision of IPC does not abide by and it also ignores Article 51A (e) of the Constitution which states that it shall be the duty of every citizen of Indiva to renounce practices derogatory to the dignity of women.37 Thus it can be considered as the greatest argument for validating the exception 2 of sec 375 of IPC as unconstitutional. 34 INDIAN CONST. art. 253. 35 PRS legislative research, https://prsindia.org/policy/report-summaries/justice-verma-committee-report- summary. 36 UDHR, art. 1, 2, 3 § 7, 1948. 37 INDIAN CONST. art. 51A, cl. e. 27 It is pertinent to note the legislative intent behind the following provisions Section 376(2) IPC39, Sections 5, 9 of POCSO Act40. 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 Indiva 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 the wife to refuse for intercourse and ultimately she has no choice but to submit herself. So, the court has been prayed to direct concerned authority to include marital rape under section 376(2) IPC and step would be an add on to the list of landmark judgements this very court has given for the empowerment of women in our society. 4.3 JUDICIAL ACTIVISM: By striking down the exception which has been prevailing for more than 13 decades, it won’t not amount to judicial overreach, in fact, it would be called judicial activism. Dr. Ambedkar's viewpoint thus substantiates that the Indivan Constitution does not make any absolute or rigid separation of powers of three organs due to its pro responsibility approach rather than having stability at the centre stage. The Indian Supreme Court, however, supplemented and reiterated this in the case of Ram Jawaya Kapur v. State of Punjab that the Indian Constitution does not recognise the doctrine of separation of powers in its absolute rigidity. It is respectfully submitted that marital rape is a non-consensual act against a woman where she is terribly abused both physically and mentally. The counsel humbly submits before this Honorable Court that the exceptions under Section 375 of the Indivan Penal Code is subject to Judicial review. Judicial review is the cornerstone of constitutionalism. Therefore, the petitioner seeks for striking down the Exception II of Section 375 of IPC and, the court is also been prayed to direct concerned authority to include marital rape under Section 376(2) IPC and step would be an add on to the list of landmark judgements this very court has given for the empowerment of women in our society. 39 IPC, sec.376(2), 1860. 40 POCSO, Sec.5 & 9, 2012. 30 PRAYER There are laws that empower the status of women with the support of art 15(3), still women in home are 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 etc ) ● Another is where the law changes the society, (abolition of sati, protection sc st and other weaker communities ) and this act of SC will also fall under this if done today. There are judicial precedents that empowered women status Like adultery, right on maintenance, right on succession of property, right on abortion (the recent judgement) Following these, this current case must make marital rape as offence by using the tool of judicial activism. Keeping above stated in mind, In the light of fact cited issues raised, arguments advanced, and authority cited, and in the era where a woman with a voice is by definition a strong woman but the search to find that voice can be remarkably difficult, the petitioner humbly submit that this hon’ble court in the interest of justice may graciously be pleased to – a) Issue a writ, order or direction declaring Exception 2 to Section 375 of the Indivan Penal Code, 1860, ● to be arbitrary, unreasonable, unconstitutional, violative of Articles 14, 15, 19 and 21 of the Constitution of Indiva; ● violative of inherent human rights recognised by the Constitution of Indiva; ● violative of our constitutional morality and principles and be pleased to strike the same down and; ● To strike under the free license given to husbands as it goes against Article 51A (e) of the Constitution which states that it shall be the duty of every citizen of Indiva to renounce practices derogatory to the dignity of women. 31 b) Issue a Writ / Order or Direction in the nature of mandamus permitting women to file a case against their husband for raping them (non-concentual sex) without treating them unequally as its violative of Art. 14; c) to direct the government of the Union of Indiva to consider for framing appropriate guidelines and bring laws for the protection of women in such cases. d) To include Marital Rape under the purview of aggrevated penetration and find a place under Section 376(2) instead of Section 376(1). e) pass ad interim ex-parte relief in terms of prayer (a) to (d) AND/OR Pass any other order as the Honorable court deems fit in the interest of equity, justice, fair play and good conscience. All of which is humbly prayed. (Counsel on behalf of Petitioner) 32