moot related to marital rape, Summaries of Mock Trial and Moot Court

Download moot related to marital rape and more Summaries Mock Trial and Moot Court in PDF only on Docsity! Review 1. Whether the Supreme Court of Aeloria have jurisdiction to try this case? (1) WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE (2) BEFORE THIS HON’BLE COURT. (3) WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE (4) BEFORE THIS HON’BLE COURT. (5) WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE (6) BEFORE THIS HON’BLE COURT. (7) WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE (8) BEFORE THIS HON’BLE COU It is humbly submitted by the petitioner before the Hon’ble Supreme Court of Aeloria has jurisdiction to try this case and adjudicate the matter as there is a violation of non-negotiable Fundamental Rights such as the Right to Life and Personal Liberty (Article 21), the Right to Equality (Article 14), the Right to Freedom of Speech (Article 19(1)a), of the Constitution of Aeloria. It is further submitted that the instant case is of grave public concern as it is regarding the rights of married women, so the petitioner humbly submits that the Hon’ble Supreme Court also grants special leave under Art. 136 of the constitution of Aeloria, and the petition filed by the petitioner is about constitutional validity. The role of the Supreme Court is expanding beyond the confines of dispute settling and law-making. The Supreme Court is a problem- solver in the nebulous areas1. The Hon’ble Supreme Court has the duty to apply the existing law in a form more conducive to the independence of the judiciary2. It is contended that the current appeal is maintainable before the Supreme Court on these broad grounds. The Petitioner, in the instant matters, humbly submits that the petition is the main table because there is an infringement of fundamental rights on behalf of the state towards the Petitioner. (1.1) That this petition is maintainable under Article 136 because there exists a substantial question of law regarding the constitutionality of exp 2 of 375 of APC. (1.2) That there exists the question of facts in exceptional circumstances. (1.3) Existing alternative remedies are not barred from the instant petitioner. (1.4) 1.1. The Petitioner, in the instant matters, humbly submits that the petition is maintainable because there is an infringement of fundamental rights on behalf of the state towards the Petitioner. It is humbly submitted to the Hon’ble Supreme Court of Aeloria that the petition is maintainable as the SC is the apex court of law in Aeloria and protector and safeguards the fundamental rights of its citizens in this instance, the petitioner’s fundamental rights are infringed, and in the instant petition there is a Gross Violation of Fundamental Rights as of Articles 14, 19, 21; therefore, the writ petition filed by the petitioner and the special leave petition is maintainable in the Hon’ble Supreme Court of Aeloria is maintainable under article 32 and 136 of constitution of Aeloria. "Very wide powers have been conferred on this Court for due and proper administration of justice. Apart from the jurisdiction and powers conferred on this Court under Article 32 and 136 of the Constitution, I am of the 1 JUSTICE M L SINGHAL, SOHONI’S CODE OF CRIMINAL PROCEDURE, Vol. 4, 1115 (LexisNexis, 21st ed., 2015). 2 K. Veeraswami v. Union of India, (1991) 3 SCC 655 opinion that this Court retains and must retain, an inherent power and jurisdiction for dealing with any extraordinary situation in the larger interests of administration of justice and for preventing manifest injustice being done.”3 1. In the case of Golaknath v. State of Punjab4, the Hon’ble Supreme Court of Aeloria ruled that the state cannot abridge fundamental rights without following due process. This case underscores the importance of fundamental rights and the duty of the court to protect them. 2. In Keshavananda Bharati v. State of Kerala5, the Hon’ble Supreme Court of Aeloria considered a case where the petitioner argued that certain constitutional amendments violated their fundamental rights. The court's decision reinforced the supremacy of fundamental rights in the Indian Constitution. 3. The case of Maneka Gandhi v. Union of India6. In this case, the Supreme Court held that the right to travel abroad was encompassed within the Right to Life and Personal Liberty (Article 21) and that the state could not arbitrarily restrict this right. This case reaffirmed the importance of fundamental rights and their protection by the Supreme Court. 4. In Navtej Singh Johar v. Union of India, the Supreme Court of India decriminalized homosexuality, holding that Section 377 of the Indian Penal Code violated the fundamental rights of LGBTQ+ individuals. This landmark case highlighted the court's commitment to protecting fundamental rights, including the right to equality and personal liberty. 5. In State of West Bengal v. Committee for Protection of Democratic Rights, the Supreme Court of India invoked Article 136 to address extrajudicial killings in the state. The court emphasized safeguarding the rule of law and ensuring that state actions comply with fundamental rights. From all these cases, the Supreme Court considered that fundamental rights can’t be infringed, and the court has safeguarded the rights 1.2. That this petition is maintainable under Article 136 because there exists a substantial question of law regarding the constitutionality of exp 2 of 375 of APC. It is humbly submitted to the Hon’ble Supreme Court of Aeloria that the petition which questions the constitutionality of a law is challenged on the ground that it infringes a fundamental right, the Court must consider the ‘direct and inevitable effect’ of such law, referred to as the ‘test of direct and inevitable consequence. Exception II of Section 375 violates Articles 14 and 15 of the Constitution7. Equality of treatment under Article 14 is an objective test, the basic principle being that law must operate equally on all persons under like circumstances. Judicial decisions read the doctrine of classification into Article 14 and Article 15(3)8. This doctrine has been described as a “subsidiary rule” evolved by courts to give practical content to the Article. The “positive” aspect of Article 14 is that if an action is 3 Union Carbide Corporation v. Union of India 1992 AIR 248, 1991 SCR Supl. (1) 251 4 AIR 1967 SC 1643. 5 AIR 1973 SC 1461. 6 AIR 1978 SC 597. 7 maneka Gandhi v. Union of India, (1978) 1 SCC 248 : AIR 1978 SC 597; (1978) 1 SCC 248; Indian Hotel and Restaurant Association (AHAR). State of Maharashtra, 2019 SCC OnLine SC 41 8 M. Nagaraj v. Union of India, (2006) 8 SCC 212 Issue-2 Whether the Exception-2 of Sec 375 of Aeloria Penal Code, 1860 is violative of Fundamental rights? Whether Exception-2 of Sec 375 of APC is violative of the Fundamental Rights Whether Exception-2 of Sec 375 of APC violates Art 14 of the Aelorian Constitution Whether Exception-2 of Sec 375 of APC violates Art 19 of the Aelorian Constitution Whether Exception-2 of Sec 375 of APC violates Art 21 of the Aelorian Constitution Whether mere marriage amounts to an implied consent to Sexual activity 1. Whether the Exception-2 of Sec 375 of Aeloria Penal Code, 1860 is, violative of Fundamental rights? [¶1] It is humbly submitted before the SC of Aeloria that the Exception-2 of Sec 375 of APC is violative of the non-negotiable Fundamental Rights which are provided under the Part III of the Aelorian Constitution. The same shall be established in a twofold manner, i.e., firstly, the exception infringes the Fundamental Rights of Article 14, Article 19 and Article 21 of the Constitution (1.1), and Secondly, a mere marriage does not amount to an implied consent to sexual activity (1.2). 1.1 Whether Exception-2 of Sec 375 of APC is violative of the Fundamental Rights [¶2] It is humbly submitted before the Supreme Court of Aeloria that the Exception-2 of Sec 375 of APC is violative and infringes the non-negotiable Fundamental Rights which are provided under the Part III of the Aelorian Constitution. [¶3] Sec 375 of the APC provides with the offense of Rape and its various forms, along with the punishments for committing such an offense. Sec 375 of APC defines Rape as the penile penetration of the vagina, anus, urethra, or mouth of a woman without her consent. It also includes non-consensual penetration of any object or any part of the body into the vagina, anus, urethra, or mouth of a woman. Sec 375 of APC establishes various circumstances under which an act is legally categorized as rape. These instances encompass situations where the act transpires against the explicit will of the woman, occurs without her voluntary consent, involves the acquiring of her consent through coercion or intimidation involving the threat of bodily harm, takes place when the woman is incapable of granting consent due to mental incapacity or intoxication, or when the woman is under the age of eighteen, regardless of any purported consent. [¶4] In addition, Exception-2 of Sec 375 of APC states that, “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape." This exception acts as a defence to the husbands of a married couple where if there is sexual intercourse or sexual acts by the husband with his own married wife, then it does not amount to an act of rape unless the wife is under fifteen years of age. [¶5] It is submitted that this provision serves as an exception and provides a defence to husbands within a married couple. It stipulates that sexual intercourse or sexual acts between a husband and his legally wedded wife do not constitute an act of rape unless the wife is under the age of fifteen. [¶6] It is submitted that exception-2 of Sec 375 violates and infringes the non-negotiable Fundamental Rights which is provided to the citizens under the Aeloria Constitution because it violates the rights provided under (a) Art 14, (b) Art 19, and (c) Art 21. 1.1.a Whether Exception-2 of Sec 375 of APC violates Art 14 of the Aeloria n Constitution [¶7] It is humbly submitted before the Hon’ble SC that exception-2 of Sec 375 of APC, which provides that Sexual intercourse of acts by a man to his lawfully wedded wife who is not under the age of fifteen, is not Rape, is violative to the Right to Equality which is provided under Art 14 of the Aeloria Constitution. To verify the test of reasonable classification under Art 14, the classification should be based on intelligible differentia, and the differentia should have a reasonable nexus (or) connection with the object that is sought to be achieved. [¶8] It is submitted that in the case of Budhan Choudhry vs. State of Bombay12, a constitutional bench consisting of 7 judges explained the true meaning and the scope of Article 14, stating that Art 14 forbids class legislation but does not forbid reasonable classification and provided the concept of the test of reasonable restriction and its conditions. [¶9] It is submitted that in the case of Ram Krishna Dalmia v. Justice S.R. Tendolkar13, The Supreme Court held that it is Article 14 forbids class legislation. It does not forbid reasonable classification for the purposes of legislation. This case relied on the judgment of Budhan Choudhry vs. State of Bombay14 case and elaborated on the reasonable classifications. [¶10] It is submitted that Exception-2 creates an unreasonable classification because the classification is not determined on intelligible differentia, and the differentia does not have a reasonable nexus with the object that is sought to be achieved. [¶11] It is submitted that the Intelligible Differentia, which forms the foundation of classification, necessitates that the basis for such classification must be rational and based on some qualities or characteristics that are found common within the individuals of a defined 12 Budhan Choudhry v. State of Bihar, 1954 SCC OnLine SC 19 13 Ram Krishna Dalmia v. S.R. Tendolkar, 1958 SCC OnLine SC 6 14 Budhan Choudhry v. State of Bihar, 1954 SCC OnLine SC 19 group while also being absent in those outside the group. It is humbly submitted that there is no apparent and reasonable distinguishing element when it comes to categorizing rape victims based on their marital status. [¶12] It is submitted that the very absence of an apparent and reasonable distinction of rape victims on the basis of marital status raises the question of the legitimacy of such classification, as it fails to identify any inherent qualities or characteristics that are universally shared by married victims of sexual offenses but are conspicuously lacking in unmarried victims. This raises issues regarding the constitutionality and effectiveness of such differentiation within the society and the legal framework. [¶13] It is submitted that the classification lacks a reasonable nexus (or) connection with the object that is sought to be achieved. As the fundamental aim is to protect the dignity of women and punish criminals, but Exception-2 disrupts this aim in two notable ways. Firstly, it creates a separate category of married rape victims who are denied legal protection, contrary to the objective of safeguarding women's dignity. Secondly, it grants husbands a legal license to continue their wrongful acts within marriage, undermining both the dignity of victims and the punitive purpose of the law. [¶14] It is submitted that in the case of the State of Karnataka v. Krishnappa, where it was held that sexual violence, apart from being a dehumanizing act, is an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honor and offends her self-esteem and dignity. It degrades and humiliates the victims. [¶15] It is humbly submitted that in the case of Independent Thought v. Union of India, the Apex Court agreed with the petitioner’s argument that exception-2 did not create a reasonable classification and was violative of Art 14 and held that if the girl is below 18 years of age, then the offence of Section 375 is attracted, notwithstanding the fact that there is a relationship of husband and wife. It was also held in this case that, Constitutionally, a female is equal to a male, and no statute can be interpreted or understood to derogate from this position. If there is some theory that propounds such an unconstitutional myth, then that theory deserves to be completely demolished. And the Husband will be held liable. [¶16] The petitioner humbly submits that Exception-2 of Sec 375 of APC is violative of Art 14 of the Aeloria Constitution as it creates an unreasonable classification and it does not protect the dignity of women. 1.1.b Whether Exception-2 of Sec 375 of APC violates Art 19 of the Aeloria n Constitution [¶17] It is humbly submitted before the Hon’ble Supreme Court that exception-2 of Sec 375 of APC, which provides that Sexual intercourse of acts by a man to his lawfully wedded wife who is not under the age of fifteen, is not Rape, is violative to the Right to Equality which is provided under Art 19 of the Aeloria Constitution. [¶18] It is submitted that Exception-2 to Sec 375, IPC is violative of Art 19 of the Aeloria n Constitution because, firstly, married women have the fundamental right to give consent to sexual intercourse under Art 19(1)(a) and secondly, the restrictions imposed under Art 19(2). drawn if only based on evidence or probabilities of the case. “Consent” is also stated to be an act of reason coupled with deliberation. [¶36] It is also submitted that implied consent can create an environment where one spouse may feel obligated or coerced into engaging in sexual activity with the other spouse against their will. [¶37] It is humbly submitted before the Supreme Court that a mere marriage would not amount to implied consent for sexual activity. 4 issue Does there exist a prima facie case under sections 504, 505 and 153A of the Aeloria Penal Code, 1860 against Ms. Jessica?  It is humbly contended before the Hon’ble Supreme Court of Aeloria that there exist no prima facie case under Sections 504, 505 and 153A of the Aelorian Penal Code. Firstly,  Section 504 of the Aeloria Penal Code deals with the Intentional insult with intent to provoke breach of the peace.  The question before the Hon’ble court now lies whether Ms. Jessica can be held liable under this Section. The intention of this section is to stop people from using abusive and provocative language intentionally leading to provocation, but it is not necessary for it to have an actual disturbance of peace. For the same, the essentials of this section must be examined: o The accused must intentionally insult a person thereby leading to provocation o The insult must be to provocate the person insulted o The accused must have the intention to break public peace or cause provocation 1. Intentional insult leading to provocation: a. It humbly submitted to the Hon’ble court that there was no intentional “insult to the victim” or usage of any abusive language in the present case. In democratic countries like Aeloria, every citizen is entitled to participate in peaceful protests that are not illegal or incite violence21. b. Ms. Jessica has consistently advocated for gender equality and women's rights through peaceful means. Her intent has never been to incite violence or public disturbance but to raise awareness about a pressing issue. This is also covered under the Constitution of Aeloria, under article 19 (1) (b)22, which gives her the right to assemble peacefully without any arms. As held in the case of Himat Lal K. Shah Vs. Commissioner Of Police, Ahmedabad & Anr23 it was held that the State could only make regulations to aid the right of assembly of citizens. c. Additionally, Ms. Jessica merely spoke about women’s rights and expressed her fundamental right of Freedom of speech and expression as covered under article 19 (1) (a) of the Constitution of Aeloria24. Ms Jessica’s protest involved advocating her opinions on an existing issue in the Republic Aeloria. d. Additionally, it was never Ms. Jessica’s intention to provoke any community or group, or to insult them. Her speeches were made to bring about awareness and make the public aware of the government’s policies. 2. Protection of marginalised groups a. In the Constitution of Aeloria, the principles of justice, equality, and fraternity are embedded. This defines the objectives of the Aelorian Constitution. These terms grant the citizens of Aeloria social, political and economic justice along with the liberty of thought and expression25. b. Inclusion of the term “equality” itself proves that the citizens are given equal opportunity and equal status. Republic of Aeloria is revered for its devotion and commitment towards not negotiating the Fundamental rights of their citizens, its democratic values and iron-clad commitment towards constitutionalism26. 21 Article 19(1)(b), Constitution of India 22 Constitution of India 23 HIMAT LAL K. SHAH Vs. COMMISSIONER OF POLICE, AHMEDABAD & ANR. LNIND 1972 SC 438 24 Constitution of India 25 Proposition, paragraph 1 26 Proposition, paragraph 1 c. Ms. Jessica was just bringing this to the public’s attention and emphasizing on these principles of the Constitution of Aeloria. It asserts the equality before law and equal protection of law granted to all the citizens in Aeloria, covered under articles 14 and 15 of the Constitution, wherein it states that there would be no discrimination made on the basis of race, gender, sex, etc and that the Sate would be allowed to make provisions for socially backward classes including women and children. Ms. Jessica's detention and legal troubles may be seen as an infringement on her own fundamental rights, including the right to freedom of speech and personal liberty. Taking into consideration the population of Aeloria, wherein women consist of less than 50% of the population and still face the wrath of the patriarchal society, the Government is bound to make specific provisions accordingly. 3. Statements leading to public mischief a. Section 505 of the Aelorian Penal Code27 talks about Statements conducing public mischief. b. Under Section 505, the exception of this Section states that it does not amount to an offence, within the meaning of this section, when the person making, publishing or circulating any such statement, rumour or report, has reasonable grounds for believing that such statement, rumour or report is true and makes, publishes or circulates it in good faith and without any such intent as aforesaid.28 c. Additionally, Disapprobation of governmental inaction cannot be branded as an attempt to promote hatred between different communities. Free speech of the citizens of this country cannot be stifled by implicating them in criminal cases, unless such speech has the tendency to affect public order. 29 4. Essentials of Section 505 of the Aelorian Penal Code not met a. In the instant case, the First Information Report stated that the actions of the Petitioner are an offence under the Sections 504, 505 and 153A of the Aelorian Penal Code, 1860. It is submitted before the Hon’ble Court that the allegations made in the FIR do not prima facie constitute any offence against Ms. Jessica. 27 Indian Penal Code, 1890 28 Patricia Mukhim v. State of Meghalaya, (2021) 2 MLJ (Crl) 360 (SC): LNIND 2021 SC 116. 29 Dhirajlal and Ratanlal, “The Indian Penal Code,” 33rd ed. (LexisNexis Butterworths Wadhwa, n.d.).