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1ST DEO MANGAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2022

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TEAM CODE: T

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BEFORE THE HONORABLE SUPREME COURT OF UNION OF INIDIVA

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PUBLIC INTEREST LITIGATION

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W.P. (C) NO. ____ OF 2022

UNDER ARTICLE 32 OF THE INDIVAN CONSTITUTION

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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-

2. Index of Abbreviations 4-
3. Index of Authorities 7-
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-

3.1 Violation of Article 19(1)(a) of the Constitution of Indiva 3.2 Violation of Article 21 of the Constitution of Indiva --3.2.1 Right to Privacy, --3.2.2 Right to live with dignity, --3.2.3 Right to health (mental and physical), -- 3.2.4 Right against inhuman treatment, --3.2.5 Right of Women to be treated with decency and dignity. Whether Domestic Violence Act, POCSO Act and Section 498A IPC shall be treated as an alternative to marital rape for wife? --DV 2005, POCSO 2012 and Section 489A can’t be served as an alternative remedy in the case of marital rape 4.1 Punishment under Section 498A is inadequate in the case of marital rape. 4.2 Marital rape must find a place under Section 376(2) 4.3 Judicial activism

9. Prayer 32& INDEX OF ABBREVIATIONS

S.No ABBREVIATION FULL FORM 1.

& AND

2. AIR

ALL INDIA REPORTER

3. Annex. ANNEXURE 4. **Anr. ANOTHER

5. Art.**

ARTICLE

**6. Commr. COMMISSIONER

7. Corpn.**

CORPORATION

8. CA

CRIMINAL APPEAL

9. Ed. EDITION 10. Govt.

GOVERNMENT

11. HC HIGH COURT

Hon’ble

HONORABLE

IPC

INDIVA PENAL CODE

14. No. NUMBER 15. Viz.

NAMELY

Ors.

OTHERS

17. ¶ PAGE

18. Pvt. Ltd. PRIVATE LIMITED 19. r/w

READ WITH

20. SCC SUPREME COURT CASES

SCR

SUPREME COURT REPORTER

**22. Supp. SUPPLEMENT

23. SC SUPREME COURT 24.** Sec

SECTION

25. i.e THAT IS 26. U/S

UNDER SECTION

UOI

UNION OF INDIVA

28. V./Vs. VERSUS 29. w.r.t

WITH RESPECT TO

MRE

MARITAL RAPE

POCSO

PROTECTION OF CHILDREN FROM

SEXUAL OFFENCES

DV

DOMESTIC VIOLENCE ACT

INDEX OF AUTHORITIES

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
4. INDIAN EVIDENCE ACT, 1872.
5. DOMESTIC VIOLENCE ACT, 2005. WEBSITES REFERRED

S.No PARTICULARS

1. https://indiankanoon.org/doc/170570619/
2. www.octopus.com
3. www.lexisnexis.com
4. www.mupratafast.com
5. www.cpwd.gov.in
6. www.history.com
7. www.judis.nic.in CASES CITED **_S.No PARTICULARS
8. Joseph Shine vs. Union Of India

Farhan vs. State &Anr

3. Venkatacharyulu vs. Rangacharyulu_**

**_4. Ram Krishna Dalmia & Ors vs. Justice S.R. Tendolkar 5 Nimeshbhai Bharatbhai Desai vs. State of Gujarat

6. Dr. Subramanian Swamy vs. Director CBI
7. Anuj Garg & Ors vs. Kotlal Association of India & Ors
8. NALSA V. Union of India
9. Maneka Gandhi vs. Union Of India
10. Francis Corallie Muin vs. Union Territory of Delhi
11. Bandhua Mukti Morcha vs. Union of India
12. Munn vs. Illions
13. State of Maharashtra vs. Madhulkar Narayanan
14. R vs. Clarence
15. Chairman Railway Board vs. Chandrima Das
16. Kharak Singh vs. State Of Uttar Pradesh
17. Govind vs. State of Madhya Pradesh
18. Neera Mathur vs. LIC
19. Vishakha vs. State Of Rajasthan
20. Suchita Srivastava vs. Chandigarh Administration
21. Muskesh and Anrs. vs. NCT Delhi
22. Ram Jawaya Kapur vs. State of Punjab_**

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 Indiva^1. 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

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.

● 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?**

SUMMARY OF ARGUMENTS

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? The Counsel on behalf of the Petitioner humbly submits the Doctrine of coverture and Doctrine of Implied consent can’t be applicable in a Matrimonial Relationship in the 21st century where men and women in the society are treated equally. Exception 2 is based on an archaic, outdated and extremely regressive principle whereunder the married woman is treated as subordinate to her husband. 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 Constitution of Indiva, 1950 due to it **jeopardising the basic fundamental rights of 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.

4. Whether Domestic Violence Act, POCSO Act and Section 498 A IPC shall be treated as an alternative to marital rape for wife? The Counsel most humbly submits to this superior court that the Domestic Violence 2005, POCSO 2012 and Section 489A can’t be served as an alternative remedy in the case of marital rape. DV Act, is more like a civil remedy, POCSO is applicable only to minors and section 489A specifically talks only about cruelty were marital rape. **A RGUMENT ADVANCED

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?** The Counsel on behalf of the Petitioner humbly submits that impugned provision of IPC which legalise marital rape (i.e., Exception 2 of section 375 IPC ) and treat the rape of separated women unequally, are fundamentally opposed to women’s constitutionally recognized basic rights of equality, right to life and dignity. Exception 2 to Section 375 has existed in the Indivan Penal Code since the time of its enactment by the British in 1860. Exception 2 is based on an archaic, outdated and extremely regressive principle whereunder the married woman is treated as subordinate to and bound by the dictates of the husband, where she is treated as a person devoid of basic human rights, her wishes and autonomy and as a person without a legal existence of her own and as a property of her husband. 1.1 NON APPLICABILITY OF DOCTRINE OF COVERTURE: We are in the 21st Century, but some customs and laws of centuries past continue to linger and define modern laws that do not abide by the constitution. One of such is the Common Law Doctrine of Coverture. Many common law rules, especially those concerning the family have their root in religion. In England, many centuries ago, there developed a common law principle known as the Doctrine of Coverture whereunder upon marriage, the woman lost her separate existence and was regarded as the property of and subordinate to her husband. By virtue of this

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 judgments^3. 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 Sabarimala^5 , Joseph Shine case where adultery was struck down^6 , The recent judgement by the SC on Abortion held that the 2 Joseph Shine v. Union of India reported at (2019) 3 SCC 39. 3 JAIDEEP BHANUSHANKAR VERMA v. UNION OF INDIA, R/WRIT PETITION, (PIL) NO. 146 of 2021. 4 Farhan vs State & Anr, W.P.(C) 284/2015 & CM Nos.54525-26/2018. 5 Indian Young Lawyers Association vs The State Of Kerala, W. P (CIVIL) NO. 373 OF 2006. 6 Joseph Shine vs Union Of India on 27 September, W.P. (CRIMINAL) NO. 194 OF 2017.

artificial distinction between married and unmarried women was not constitutionally sustainable^7 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 witness^9 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 spouse^10. 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. 7 https://timesofindia.indiatimes.com/topic/marital-rape. 8 Hindu Succession Amendment Act, 2015. 9 IEA, sec. 120, 1872. 10 IEA, sec. 122, 1872.

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 11 Venkatacharyulu v. Rangacharyulu, (1891) ILR 14 Mad 316. 12 Indian Contract Act, 1872. 13 Hindu Marriage Act, 1955.

Constitution of Indiva, 1950 due to it jeopardising the basic fundamental rights of women. Article 14 of the Indian Constitution guarantees equality for all but the marital law prejudges women who are married and raped by their husband by withholding from them equal protection from rape and sexual harassment. Similarly in Article 15 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. 2.1 RIGHT TO EQUALITY: If any discrimination is made and it goes against the right of equality under Article 14, it should satisfy the 2 conditions to be constitutionally valid.

1. Intelligible Differentia (Reason for making the difference between the 2 classes)
2. Rational nexus between the difference made and the object or purpose which is to be achieved. In Exception II – the difference has been made between married women and unmarried women. The impugned provisions (ie., Exception 2 of section 375) classify rape victims into three categories based on their marital status (i.e., married, married but separated, and unmarried). In the case of Ram Krishna Dalmia v. Mr. Justice S.R., It was observed that: In order to pass the test for permissible classification two conditions must be fulfilled, namely — ●The expression “intelligible differentia” means difference capable of being understood. The classification distinguishes persons or things that are grouped together from others left out of the group. ● The differentia must have a rational nexus (ie.,relation) to the object sought to be achieved by the statute.^14 Article 14 prohibits discrimination not only by a substantive provision of law but also by procedural law. Discrimination made (victims) under section 375 between rape against normal women and rape against a married woman is not intelligible differentia. Discrimination made between offences: if a husband commits a hurt, grievous hurt or murder, he will be convicted without exceptions, but if offence of rape is committed by a husband 14 Ram Krishna Dalmia v. Mr. Justice S.R.Tendolkar AIR 1958 SC 538.

against wife, he has immunity. Hence according to the Indivian subsatantive laws men are convicted for cruelty in a marriage but not for rape. This is not intelligible differentia. In the present case, the impugned provisions create three classes of rape victims without any intelligible differentia between the harms they suffer and without a plausible rational nexus to an object sought to be achieved by the criminal law. The above three classifications of women who are victims of rape would be constitutional if and only if the classification is based upon sound intelligible differentia which has a rational relation to the object sought to be achieved by the impugned provisions. The Union of Indiva has failed to disclose the object or purpose sought to be achieved by itself in classifying rape victims into these three categories. Indeed through the impugned provisions, the Union has purposefully refused to recognize and accord equal rights to women in a marriage. In the case of Nimeshbhai Bharatbhai Desai vs the State Of Gujarat , Justice J.B. Pardiwala observed that “ A law that does not give married and unmarried women equal protection creates conditions that lead to the marital rape. It allows men and women to believe that wife rape is acceptable. Making wife rape illegal or an offense will remove the destructive attitudes that promote the marital rape. In this case, the Justice has upheld the point that the women who are married are prone to rape (marital rape here) than the unmarried women.^15 In the case of Dr. Subramanian Swamy v. Director , in para 57 it was held that ''the Constitution permits the State to determine, by the process of classification, what should be regarded as a class for purposes of legislation and in relation to law enacted on a particular subject ”.^16 Differentia which is the basis of classification must be sound and must have reasonable relation to the object of the legislation.^17 If the “object of classification itself is discriminatory, then explanation that classification is reasonable having rational relation to the object sought to be achieved is immaterial.” The Argument that the differentiation between the married and unmarried women creates intelligible differentia and a rational nexus by the act of marriage is an improper predicament 15 Nimeshbhai Bharatbhai Desai vs the State Of Gujarat, R/SC NO. 7083 of 2017. 16 Dr.Subramanian Swamy vs Director, Cbi & Anr, 2005 (1) AWC 797 SC, 2005 CriLJ 1413, 2005 (2) JCR 273 SC, JT 2005 (2) SC 382, (2005) 2 SCC 317. 17 Dr. Subramanian Swamy v. Director, CBI (AIR 2014 8 SC 682).

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 IPC^18 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 18 IPC, Sec. 354, 377, 302 & 323, 1860. 19 Anuj Garg & Ors. Vs. Kotlal Association of India and Ors. (2008) 3 SCC (1).

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 instance^20. 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 20 NALSA vs Union of India 2014 (5) SCC 43824.

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 S ex-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

rape law but not the offending husband only because of his relationship with the victim. A married woman’s ability to say “no” to sexual intercource with her husband when he is infected with a communicable disease or when she is herself unwell, finds no space in the present framework of rape law. Thus, the rape law as it stands at present is completely skewed insofar as married women are concerned. The prosecution of the offending husband for a rape offence would result in invading the private space of a married couple is nothing but an attempt to keep the law at bay even when a heinous crime such as rape has occurred and that very attempt to keep away the law even when a woman is subjected to forced sex by her husband, by demarcating private and public space is to deny her the agency and autonomy that the Constitution confers on her and which shall be non acceptable. The Supreme Court in NALSA v. Union of India [(2014) 5 SCC 438] , in para 69 stated that “. .Article 19(1) (a) of the Constitution states that all citizens shall have the right to freedom of speech and expression, which includes one’s right to expression of his self identified gender. Self-identified gender can be expressed through dress, words, action or behavior or any other form. No restriction can be placed on one’s personal appearance or choice of dressing, subject to the restrictions contained in Article 19(2) of the Constitution. ”^21 Given that the marital rape Exception trammels a woman’s sexual “behaviour” and cannot be justified under any of the heads of Article 19(2)^22 , on this ground alone the provision is liable to being struck down. Right of a married woman to say “NO” is one of the Moral rights of the Married women to refuse unwanted forcible sexual Intercourse as 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 unmarried 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. Section 114A of IEA talks about the Presumption as to absence of consent in certain prosecution for rape^23 is allowed where presumption implied consent for intercourse shall not be. Exception II makes a uniform presumption which is violative of Article 19(1)(a). 21 I d. 20. 22 INDIAN CONST. Art. 19(2). 23 IEA, sec. 114A, 1872.

3.2 VIOLATION OF ARTICLE 21:

Irrespective of who the perpetrator is, forced sex mars the woman-victim physically, psychologically and emotionally. Non-consensual sex in marriage is an antithesis of what matrimony stands for in modern times i.e., the relationship of equals. It violates the facets of Article 21, the basic rights guaranteed like Right to Privacy, Right to live with dignity, Right to health (mental and physical), Right against inhuman treatment, Right of Women to be treated with decency and dignity. All the above has been violated by Exception II of Section

375. 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 etc All these facets of privacy have been dealt previously by apex courts, So this judgment can follow those precedents with regard to a married woman. 3.2.1 RIGHT TO LIFE AND PERSONAL LIBERTY: Article 21: No person shall be deprived of his life or personal liberty except according to procedure established by law. All women’s physical integrity flows directly from the fundamental right to life, dignity and bodily privacy ; her right to sexual and reproductive autonomy flows directly from the right to liberty. It is humbly submitted that marital rape also violates the Right to Privacy as guaranteed under Art.21 of the Constitution of Indiva.^24 It must be noted that dignity is linked to personal self- realization and autonomy. It has been stated in the Maneka Gandhi v. Union of India case that the ‘right to live’ is not merely confined to physical existence but includes within its ambit the ‘ right to live with human dignity’. A similar view was taken up in the Francis Corallie Muin v. Union Territory of Delhi which said that “the right to live is not restricted to mere animal existence.”^25 The inhibition against its deprivation extends to all those limits and faculties by which life is enjoyed. Article 21 guarantees for life and personal liberty as enshrined in the Constitution.^26 The meaning of ‘life’ was first defined in the famous case of Bandhua Mukti Morcha v. Union of India^27 whose foundation was built on one of the most celebrated judgments of Munn v. Illions according to which ‘ life was something more than mere existence’.^28 24 NALSA v. Union of India, (2014) 5 SCC 438. 25 Francis Coralie v. Union Territory of Delhi , A.I.R. 1978 S.C. 597. 26 Kharak Singh v. State of Uttar Pradesh, A.I.R. 1963 S.C. 1295. 27 Bandhua Mukti Morcha vs Union Of India & Others, 1984 AIR 802, 1984 SCR (2) 67. 28 Munn v. Illinois, 94 U.S. 113 (1876)

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.