LAW OF CRIMES IPC

CASE STUDY:- “INDEPENDENT THOUGHT VS. UNION OF INDIA”.

[Writ petition (civil) no. 382 of 2013]

SUBMITTED BY:-

AMIT SIKHWAL

BCOM LLB SEM-V

ROLL NO. -02

DIRECTED BY:-

MR. RUPENDRA TAMANG

ASST. PROF OF LAW

Indian Institute of Legal Studies

Dagapur, Matigara Siliguri, Darjeeling, West Bengal 734010

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 IN THE HON’BLE SUPREME COURT OF INDIA

UNDER ARTICLE ARTICLE 32 OF CONSTITUTION OF INDIA

INDEPENDENT THOUGHT

VS

UNION OF INDIA

MEMORIAL SUBMITTED ON BEHALF OF THE PETITIONER

COUNSEL APPEARING ON BEHALF OF

PETITIONER
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 TABLE OF CONTENTS

INDEX OF AUTHORITIES……………………………………………………………..04

❖ LEGISLATION
❖ CASES REFERRED
❖ BOOKS REFERRED
❖ LAW LEXICON AND DICTIONARIES
❖ LEGAL DATABASES

LIST OF ABBREVIATIONS……………………………………………………………...06

STATEMENT OF JURISDICTION……………………………………………………….07

STATEMENT OF FACTS …………………………………………………………………08

ISSUES RAISED……………………………………………………………………………..10

SUMMARY OF PLEADINGS………………………………………………………………11

ADVANCED ARGUMENTS.…………………………………………….………………..12

PRAYER………………………………………………………………………………………...18

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 INDEX OF AUTHORITIES

LEGISLATION

1. The Constitution of India, 1950.

2. IPC
3. UDHR

CASES REFERRED

1. Bandhua Mukti Morcha v. Union of India & Ors, (1997) 10 S.C.C. 549
2. M.C. Mehta v. Union of India & Others, (1987) 4 S.C.C. 463
3. Rajeev Kumar and ors. v. The State of U.P. Through Principal Secretary, Ministry of Sugarcane
Development and ors., 2006 (1) A.W.C. 34
4. New Sun Education Society (Regd.) Through Its Secretary Sri Haji Muqeet Ali v. State of
Uttar Pradesh Through Secretary, Department of Home and ors., 2008 (2) A.W.C. 1186
5. Professor G.K. Rai v. Chancellor, University of Allahabad and ors., (2004) 2 U.P.L.B.E.C.
1691
6. S.P. Gupta v. UOI AIR 1982 S.C 149; 1981Supp S.C.
7. Budhan Choudhary v. State of Bihar; 1955 AIR 19, 1955 SCR (1) 1045
8. State of West Bengal v. Anwar Ali Sarkar; 1952 AIR75, 1952 SCR 284
9. Hari Ram v. State of Haryana; (2010) 3 SCC 621
10. State of Karnataka v. Krishnappa; 2000 Crilj 1793, JT 2000(3) SC 516, 2000(2) SCALE 610,
(2000) 4 SCC 75, 2000 2 SCR 761, 2000(2) UJ 919 SC
11. Suchita Srivastava v. Chandigarh Administration; Civil Appeal no. 5845 of 2009
12. Justice K.S. Puttuswamy (Retd) v. UOI; Writ Petition 494 of 2012
13. State of Maharashtra v. Madhkar Narayan AIR 1991 SC 207
14. Vishakha v. State of Rajasthan AIR 1997 SC 3011
15. P.Sambamurthy v. State of Andhra Pradesh AIR 1987 SC663
16. D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579
17. Yusuf Khan v. Manohar Joshi (1999) SCC (Cri) 577
18. Bachan Singh v. State of Punjab AIR 1982 SC 1325; (1982) 3 SCC 24; infra, Ch. XXVI
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 19. A.D.M Jabalpur v. S. Shukla AIR 1976 SC 1207, at 1254, 1263; (1976) 2 SCC 521; Ch.
XXXIII, Sec. F
20. Maneka Gandhi v Union of India AIR 1978 SC 597; (1978) 1 SCC 248; (1978) 2 SCJ 350
21. Munn v Illinois (1977) 94 US 113

BOOKS REFERRED

• Jurisprudence by B.M Tripathi

• Text book on IPC by K.D. Gaur
• Constitution of India by V.N. Shukla
• Constitution of India by P.M Bakshi
• Indian Constitutional Law by M.P. Jain
• The Indian Penal Code by Dr. S.S. Das
• Commentary on IPC by Ratanlal & Dheerajlal
• Human Rights Woman & Law by Dr. Devinder Singh

LAW LEXICON AND DICTIONARIES

1. B.A. Garner., Black’s Law Dictionary,6th edition

LEGAL DATABASES

1. www.judic.nic.in
2. www.lexisnexis.com
3. www.indiancaselaws.org
4. www.indlaw.com
5. www.indiankanoon.org

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WEBSITES

1. https://www.lawnn.com/independent-thought-vs-union-of-india/
2. https://www.latestlaws.com/case-analysis/sc-case-analysis-on-marital-rape-independent-
thought-v-union-of-india-and-another-by-akanksha-yadav/
3. https://indiankanoon.org/doc/883495/
4. https://indiankanoon.org/doc/1318432/
5. https://www.law.ox.ac.uk/centres-institutes/centre-criminology/blog/2017/10/child-brides-and-
capacity-consent-comment

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 LIST OF ABBREVIATIONS

AIR ALL INDIA REPORTER

CRI CRIMNAL

HON’BLE HONOURABLE

& AND

SEC. SECTION

CRILJ CRIMNAL LAW JOURNAL

ORS. OTHERS

SC SUPREME COURT

SCC SUPREME COURT CASES

JJ JUVENILE JUSTICE

V. VERSES

COI CONSTITUTION OF INDIA

IPC INDIAN PENAL CODE

PIL PUBLIC INTEREST LITIGATION

CONST. CONSTITUTION

F.R FUNDAMENTAL RIGHT

ART. ARTICLE

NGO NON-GOVERNMENTAL ORGANISATION

UDHR UNIVERSAL DECLARATION OF

HUMAN RIGHT

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 STATEMENT OF JURISDICTION

THE APPELLANT HAVE THE HONOUR TO SUBMIT BEFORE THE HON’BLE SUPREME
COURT OF INDIA, THE MEMORANDUM FOR THE APPELLANT FILED THE PETITION
UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA, 1950.

ARTICLE 32 OF THE CONSTITUTION OF INDIA, 1950 STATES THAT:

“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.”

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 STATEMENT OF FACTS

The petitioner is a society registered on 6th August, 2009 and has since been working in the area of
child rights.

The society provides technical and hand-holding support to non-governmental organizations as also to
government and multilateral bodies in several States in India. It has also been involved in legal
intervention, research and training on issues concerning children and their rights.

The society has filed a petition under Article 32 of the Constitution in public interest with a view to
draw attention to the violation of the rights of girls who are married between the ages of 15 and 18
years.

According to the petitioner, Section 375 of the IPC prescribes the age of consent for sexual intercourse
as 18 years meaning thereby that any person having sexual intercourse with a girl child below 18 years
of age would be statutorily guilty of rape even if the sexual activity was with her consent.

Almost every statute in India recognizes that a girl below 18 years of age is a child and it is for this
reason that the law penalizes sexual intercourse with a girl who is below 18 years of age. Unfortunately,
by virtue of Exception 2 to Section 375 of the IPC, if a girl child between 15 and 18 years of age is
married, her husband can have non-consensual sexual intercourse with her, without being penalized
under the IPC, only because she is married to him and for no other reason.

The right of such a girl child to bodily integrity and to decline to have sexual intercourse with her
husband has been statutorily taken away and non-consensual sexual intercourse with her husband is
not an offence under the IPC.

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 ISSUES RAISED

ISSUE I

WHETHER EXCEPTION 2 TO SEC 375 OF THE INDIAN PENAL CODE, IN SO FAR AS IT RELATES
TO GIRLS AGED 15 TO 18 YEARS, IS LIABLE TO BE STRUCK DOWN AS VIOLATIVE OF ART 14,
15 AND 21 OF THE CONSTITUTION.

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 SUMMARY OF PLEADINGS

ISSUE 1. WHETHER EXCEPTION 2 TO SEC 375 OF THE INDIAN PENAL CODE, IN SO FAR AS IT
RELATES TO GIRLS AGED 15 TO 18 YEARS, IS LIABLE TO BE STRUCK DOWN AS VIOLATIVE
OF ART 14, 15 AND 21 OF THE CONSTITUTION.

It is most humbly submitted before the Hon’ble Supreme Court of India that this present PIL challenges
the constitutional validity of exception II of S. 375 of IPC, which doesn’t consider marital rape as a
criminal offense. The Indian constitution follows the rule of law & principle of natural justice which
is violated by the statutory law in the form of IPC. It is humbly submitted before the Hon’ble court
that there is also violation of Human Rights of women (Liberty, Dignity) which is mentioned under
Universal Declaration of Human Right (UDHR) 1948.

It is therefore humbly submitted that the exception II of S. 375 of IPC should be declared as
unconstitutional as firstly it violates the principles of Rule of Law [1.1], secondly it challenges the
legal provisions of UDHR which provides the protection of Liberty, Dignity and Justice of all the
members of human family in the world [1.2].

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 ADVANCED ARGUMENTS

ISSUE 1. WHETHER EXCEPTION 2 TO SEC 375 OF THE INDIAN PENAL CODE, IN SO FAR AS IT
RELATES TO GIRLS AGED 15 TO 18 YEARS, IS LIABLE TO BE STRUCK DOWN AS VIOLATIVE
OF ART 14, 15 AND 21 OF THE CONSTITUTION.

It is most humbly submitted before the Hon’ble Supreme Court of India that this present PIL challenges
the constitutional validity of exception II of S. 375 of IPC, which doesn’t consider marital rape as a
criminal offense. The Indian constitution follows the rule of law & principle of natural justice which
is violated by the statutory law in the form of IPC. It is humbly submitted before the Hon’ble court
that there is also violation of Human Rights of women (Liberty, Dignity) which is mentioned under
Universal Declaration of Human Right (UDHR) 1948.

It is therefore humbly submitted that the exception II of S. 375 of IPC should be declared as
unconstitutional as firstly it violates the principles of Rule of Law [1.1], secondly it challenges the
legal provisions of UDHR which provides the protection of Liberty, Dignity and Justice of all the
members of human family in the world [1.2].

[1.1] Violation of Rule of Law

It is humbly submitted before the Hon’ble Supreme Court of India as the matter in this case involves
violation of principle of Rule of law1 which is the basic feature of constitution. The principle of Rule
of Law states that “rule of law doesn’t mean rule according to statutory law pure and simple, because
such a law may itself be harsh, inequitable, discriminatory or unjust. Rule of law connotes some higher
kind of law which is reasonable, just and non-discriminatory.” The rule of law basically establishes
the legal sprit of justice, but marital rape places a loop hole in the legal spirit of constitution in the form
of a heinous offence towards women.

The Indian statutory law (IPC) fails to provide justice at the point of marital status but rule of law
states of equality in the eye of law i.e. “Victim is a victim, there is no matter of her marital status.”
2
The Supreme Court has invoked the rule of law several times in its

1
MP Jain Indian Constitutional Law 7th Edition Pg No. 8 Para 4
2
P.Sambamurthy v. State of Andhra Pradesh AIR 1987 SC663; D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579;
Yusuf Khan v. Manohar Joshi (1999) SCC (Cri) 577

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pronouncements to emphasize upon certain constitutional values and principles. For e.g. in Bachan
Singh v. State of Punjab3 Justice BHAGWATI has emphasized that Rule of Law excludes arbitrariness
and unreasonableness. Further in A.D.M Jabalpur v. S. Shukl4 Justice KHANNA emphasize that5 “
Rule of law is the antithesis of arbitrariness …Rule of Law is now the accepted norm of all civilized
societies …everywhere it is identified with the liberty of the individual. It seeks to maintain a balance
between the opposing notions of individual liberty and public order. In every state the problem arises
of reconciling human rights with the requirements of public interest.”

The doctrine of rule of law includes three distinct features as follow6

(i) Absence of Arbitrary power

(ii) Equality before Law
(iii) Individual Liberties

It is humbly submitted that in this instant case there is violation of two basic features of Rule of law
i.e., equality before law [1.1.1] and individual liberty [1.1.2]

[1.1.1] Equality before Law

Married women, exactly like men and unmarried women need protection of the law in their private
spheres. While the rest of the section 375 of the IPC is interested in protecting the right of a victim
from the crime of rape, such a right is withdrawn on marriage and the focus of the law instead shifts
to protecting, the perpetrator of the crime of rape. It takes away a woman’s right of choice and indeed
effectively deprives her of bodily autonomy and her personhood. Thus the classification is
unreasonable, unintelligible. Withdrawing the protection of Section 375 of the IPC from the victims
of the crime of rape solely on the basis of their marital status is irrelevant for the purposes of legislation
and thus violates the feature of Rule of Law i.e., Equality before law.

[1.1.2]Individual Liberty

3
AIR 1982 SC 1325; (1982) 3 SCC 24; infra, Ch. XXVI.
4
AIR 1976 SC 1207, at 1254, 1263; (1976) 2 SCC 521; Ch. XXXIII, Sec. F.
5
M P Jain Indian Constitutional Law 7th Edition Page no. 9 Para II
6
DICEY, A.V, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION, Ch. 4 (X ed.)

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Right to individual liberty although couched in positive language confers on all persons the right to
personal liberty. In the case of Maneka Gandhi v Union of India7 it has become the source of all forms
of right aimed at protection of human life and liberty. The meaning of the term ‘life’ has thus expanded
and can be appropriately summed up in the words of Field J. in Munn v Illinois8where he held that life
means ‘something more than a mere animal existence’, which was further in Bandhua Mukthi Morcha
v. Union of India9 where the SC affirmed that right to live with human dignity. In light of this
expanding jurisprudence of personal liberty, the doctrine of marital exemption to rape violates a host
of rights that have emerged from the expression ‘right to life and personal liberty’ under Article 21
.The marital exemption to rape the right to privacy, right to bodily self-determination and the right to
good health, all of which have been recognized as an integral part of the right to life and personal
liberty at various points of time. Marital Rape destroys the psychology of a women and pushes her into
a deep emotional crisis. A more compelling argument can be made in case where forceful sexual
intercourse in a marriage leads to the communication of a sexually transmitted disease to the victim of
a crime of rape. The marital exception effectively deprives a married women of her right to good health.

[1.2] Violation of Human Rights

It is humbly submitted before the Hon’ble Supreme Court of India as in this case here involves the
violation of Human Rights, as the marital rape often leaves a woman in bodily pain which violates a
woman’s right to health as per the UDHR regulations. It leaves a woman broken with no confidence
and with low self-esteem as the emotional bond is broken which hampers her development in all
manner.

As according to UN Declaration on the Elimination of Violence against Women, 1993, Violence

against women includes, violence occurring in the family, marital rape or rape in a relationship, other
sexual abuse, sexual harassment at work, trafficking in women and girls

7.
AIR 1978 SC 597; (1978) 1 SCC 248; (1978) 2 SCJ 350
8
(1977) 94 US 113
9
AIR 1997 SC 2218; (1997) 10 SCC 549

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with intention of sexual and other forms of exploitation, forced prostitution, abortion of female foetuses
and infanticide of baby girls, traditional practices harmful to women such as genital mutilation, forced
or too early marriage, widow burning, honour killing, acid attacks, stoning, war rape, and other.

Marital Rape10 is a consequence of an established gender inequality within society and of existing
structures of power in gender relations which is rooted in cultural patterns, especially in harmful
influences of particular traditional practices or customs, education systems, religious beliefs and media
influences.

Marital Rape perpetuates gender inequality and stands as an obstacle to achievement of equality,
development and peace, and restricts women in all areas of social life and their access to sources,
services and activities.

The recommendations were given by the Justice Verma Committee11 which was formed to give
suggestions for the quicker trial and enhanced punishment for offenders of sexual assault against
women. It was suggested by the committee that the any non- consensual act of sexual intercourse
should be covered under the definition of rape and also the marital rape exception should be
removed. It was contended that there should be no distinction and differentiation on the basis of that
whether crime was committed within the marriage or outside it. Also it was recommended that death
penalty should be inflicted upon the rapists.

Legal Education in Contemporary Era – 2018 ISBN: 978-93-5187-924-4 lefttoday.com

10 .
11
December 23, 2012 Committee headed by Justice J.S. Verma, former Chief Justice of the Supreme Court, was
constituted to recommend amendments to the Criminal Law so as to provide for quicker trial and enhanced punishment
for criminals accused of committing sexual assault against women. The other members on the Committee were Justice
Leila Seth, former judge of the High Court and Gopal Subramanium, former Solicitor General of India. www.prsindia.org

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 PRAYER

IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED AND AUTHORITIES

CITED, THE COUNSEL FOR PETITIONER HUMBLY PRAYS THAT THE HON’BLE
SUPEREME COURT BE PLEASED:

TO DECLARE THAT THERE IS VIOLATION OF FUNDAMENTAL RIGHT

TO ADMIT THE PETITIONS .

AND/OR

PASS ANY ORDER THAT THIS HON’BLE COURT MAY DEEM FIT IN THE INTEREST OF
JUSTICE, EQUITY AND GOOD CONSCIENCE.

AND FOR THIS ACT OF KINDNESS, THE COUNSELS FOR

THE PETITIONER AS IN DUTY BOUND

SHALL EVER PRAY.

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