Violation of Article 14

 Article 14 of the Indian Constitution guarantees to all its citizens equality before the
law and equal protection of the laws on the grounds of religion, race, caste, sex or
place of birth within the territory on India1.
 However, Exception 2 to section 375 of the Indian Penal Code violates Article 14 as it
discriminates married women who are subjected to rape and other forms of sexual
abuse at the hands of their spouse. It tries to create 2 classes of women based on their
marital relationship with the preparator without any reasonable ground.
 A further classification is created on the basis of the age of the wife. The wife being
below the age of 18 and the one being above the age of 18. It grants protection to the
former while the later is left without any legal remedy when subjected to rape by her
husband.
 Article 14 forbids class legislation and only permits reasonable classification. In the
case of State of Bengal v. Anwar Ali Sarkar Habib 2 the Supreme Court laid down a 2-
fold test to determine the constitutionality of a legislation that seeks to create a
classification. Firstly, the classification must be rational, based on intelligible
differentia and secondly, it should have a reasonable nexus with the objective it seeks
to achieve. The present exception as it stands implies that “marriage” satisfies the test
of intelligible differentia.
 The law dates back to the Victorian Era where a woman was treated as a mere
‘chattel’ having no autonomy or individual identity of her own. She did not possess
any independent rights like owning property or the right to file a suit under her own
name.3 Women were treated as “properties” of their husbands and hence their consent
to sexual acts by their husbands was immaterial. The law is deeply embedded on
patriarchal notions that upon marriage the husband has exclusive rights over the
sexual choices of his wife. It treats wives as unequal to their husbands who were
incapable of giving consent to sexual acts. The theory of “securing a husband’s
entitlement over his wife’s sexuality” thus reducing her to a passive object cannot be
tolerated in the 21st century. The common law “Doctrine of coverture” which states
that in the eyes of law, upon marriage, the wife loses her identity which was
subsumed with that of her husband is no longer prevalent in India.
1
Article 14, Constitution of India, 1949
2
1952 AIR 75
3
Jill Elain Hasday, Consent and Contest: A legal history of Marital Rape, 88 Calif. L. Rev. 1373 (2000)
  The concept of marriage has undergone a sea change over the past few decades. The 4
specific religious laws namely Hindu, Christian, Parsi and Muslim, that govern the
personal rights of the parties neither create nor recognise any favourable treatment to
the husbands. The codification of personal laws treats women at par with their
husbands and hence any inference of women being inferior to their husbands cannot
be upheld.
 The celebratory judgement of the Supreme Court in the case of Shayara Bano v. The
Union of India4 recognises the Right of Muslim Women to Divorce thus further
emphasising that a wife is an equal partner in a marriage.
 “Marriage” per se does not presupposes continuous consent of a wife to sexual inter
course by her husband during the subsistence of their marriage. In legal terms, if we
were to view sexual relationships as terms in a contract of marriage, the wife’s
consent to sexual intercourse at all points of time would not bear much weight as it is
ambiguous and opposed to public policy. A contract which is uncertain in its term is
void.5 Thus, it cannot be reasonable to concluded that sex is a parcel of marriage and
cannot be disassociated with.
 Criminalising marital rape will wreck the institution of marriage6 is fallacious. The
argument hinges on the false notion that a husband cannot rape his wife as a good
wife will dutifully submit herself to fulfil the desires of her husband. Incidentally, it
also rightly assumes that by criminalising marital rape, more and more women will
take up the legal recourse to end the sexual violence meted out to them and seek legal
protection. The State has enacted laws for the Protection of women from domestic
violence (PWDA)7, thus acknowledging that preserving the sanctity of the marriage is
not the ultimate goal. A marriage in which a husband rapes his wife is already dead. A
recent ruling of the Gujarat High Court 8 has further emphasised that the act of non-
consensual marital rape itself violates the trust and confidence within a marriage and
that marital rape has itself disturbed the institution of marriage.
 A question arises whether State can enter into the Homes of individuals? The answer
to the question is in the affirmative. The state has in the past entered into the private
ambit of marriage to protect individuals from the scourge of violence by enacting

4
AIR 2017 SC 4607
5
Section 29, Indian Contracts Act, 1856
6
TOI, April 9, 2019, Deepak Misra
7
Protection of women from domestic violence, 2005
8
NimeshBhai BharatBhai Desai v. The Union of India, R/ CR/ MA. 26957/ 2017
 laws such as The Dowry Prohibition Act, Section 498A of the Indian Penal Code, and
many others. We fail to understand what is discouraging the states from recognising
rape by husbands as a crime against humanity?
 In conclusion, the Exception to Rape, fails to pass the test of reasonable classification
as there is no “intelligible differentia” for treating married women any different from
the unmarried ones and is hence, unconstitutional.

Violation of Article 21

 Article 21 of the Constitution of India guarantees the protection to of life and liberty
to every individual and states that “No person shall be deprived of his life and
personal liberty except according to the procedure established by law”. 9 It includes
within its ambit the Right to Privacy10 and the Right to Dignity which is safeguarded
by our constitutional jurisprudence.
 In the landmark judgement of K.S Puttuswamy vs. The Union of India,11 the Supreme
court has held that the Right to privacy includes within its sphere decisional privacy
reflected by an ability to make decisions primarily consisting of ones sexual or
proactive nature and decisions in respect of intimate relations. The Supreme Court has
also recognised an individual’s right to abstain from forced cohabitation and
intercourse as broader aspects of life and personal liberty.12It also implies that women
do not lose their right to privacy upon marriage as it does not treat married women on
a different footing.
 Article 21 gives every woman the right to maintain her bodily integrity, which should
not be allowed to be destroyed by her husband as he has complete control over body
and can also subject her to sexual intercourse without her consent since such an act
cannot be termed as “Rape”.
 The Exception infringes the right of dignity and equality of status by gross
subjugation of women based on archaic societal gender stereotypes, considering
women as incapable of determining their sexual preferences and hence submitting
them over to their husbands.

9
Article 21, Constitution of India, 1950
10
Justice K. S. Puttuswamy (Retd.) & Anr. v. The Union of India & Ors. (2017) 10 SCC 1
11
Ibid
12
Kharak Singh v. State of Uttar Pradesh (1963) AIR SC 1295

 Statement of Jurisdiction
The present Public Interest Litigation (PIL) is filed under Article 32 of the
Constitution of India and hence the Supreme Court has Jurisdiction to entertain this
PIL.

Article 32 of the Constitution of Rambo which reads as follows:

“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”.

 The present PIL is maintainable since there has been a gross violation of fundamental
rights of women guaranteed under article 14 and 21 of the Constitution on account of
which the relief is sought.
Summary of Arguments
1. Exception 2 to section 375 of the IPC violates Article 14 of the constitution.
The above-mentioned section violates article 14 of the constitution as it creates
two classes of women based on their marital relationship with the preparator
without any reasonable ground. It also violates article 14 of the constitution by
creating two groups of wives who are subjected to marital rape, based on their
age.

2. Exception 2 to section 375 of the IPC violates Article 21 of the constitution.

Exception 2 to section 375 of the IPC violates Article 21 of the constitution by
depriving women of their right to dignity and right to privacy which also includes
right to make choices in matters of intimate relationships.
Prayer

In the light of issues raised, arguments advanced, authorities cited, this court may be pleased
to -

 Hold Exception 2 to section 375 of the Indian Penal Code as unconstitutional.

 Criminalise marital rape by striking off exception 2 to section 375 of the Indian Penal
Code.
 Pass any other order that this court deems fit in the interest of justice, equity and good
conscience.

And for this act of kindness, we shall forever be bound.

 The PIL Competition, 2021 on Human rights

(Abhyuday IIT Bombay and ILFAT

2021)

Before the Hon’ble Supreme Court of India

Original Writ Jurisdiction under Article 32 of the Constitution

Public Interest litigation

Team Members:

1. FALGU MUKATI

2. HARSH SHETH

3. YASHVI MARU
 Memorial on behalf of the Petitioner

TABLE OF CONTENTS

NAME OF THE PARTIES………………………………………………………………

STATEMENT OF JURISDICTION………………………………………………………

STATEMENT OF ISSUES …………………………………………………….……….

SUMMARY OF ARGUMENTS ……….….……………………………………………

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

PRAYERS…………………………………………………………………………………