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RAJIV GANDHI NATIONAL UNIVERSITY OF LAW,

NATIONAL MOOT COURT COMPETITION
2019

BEFORE THE HON’BLE

SUPREME COURT OF INDIA

SOCIETY FOR WOMEN’S RIGHT & ORS v. UNION OF INDIA

SOCIETY FOR WOMEN’S RIGHTS & ORS..........................APPELLANT

V.

UNION OF INDIA....................................................................RESPONDENT

MEMORANDUM ON BEHALF OF THE RESPONDENT

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TABLE OF CONTENTS

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INDEX OF ABBREVIATIONS

1. Acc. ACCORDING
2. Art. ARTICLE
3. Crl. CRIMINAL
4. Govt. GOVERNMENT
5. Hon’ble. HONORABLE
6. IPC INDIAN PENAL CODE, 1860
7. Ors. OTHER
8. v. VERSUS
9. P. PAGE
10. no. NUMBER
11. & AND
12. Exc. EXCEPTION
13. Anr. ANOTHER
14.

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INDEX OF AUTHORITIES

STATUTES

1. CONSTITUTION OF INDIA, 1950 (P. no. 13 & 17)

2. INDIAN PENAL CODE, 1860 (P. no. 11-17)
3. INDIAN EVIDENCE ACT, 1872 (P. no. 13)
4. DOMESTIC VIOLENCE ACT, 2005 (P. no. 15-17)
5. HINDU MARRIAGE ACT, 1955 (P. no. 17)

BOOKS

1. GAUR K. D, THE INDIAN PENAL CODE 874-881 (Universal Law Publishing Co.
Pvt. Ltd., 6th Ed., 2016)(1992)
2. RATANLAL & DHIRAJLAL, THE INDIAN PENAL CODE 1195 (Lexis Nexis
Butterworths, Wadhwa, 35th Ed. 2017) (Y VChandrachud J. &V R Manohar J.)
(1896)
3. RATANLAL & DHIRAJLAL, THE LAW OF EVIDENCE 505-517 (Lexis Nexis
Butterworths Wadhwa & Company, 25th Ed. 2013) (Y V Chandrachud J. & V R
Manohar J.) (1916)
4. GAUR K. D, CRIMINAL LAW 595 (Lexis Nexis, 8th Ed, 2015)(1975)
5. Dr. H. O. AGARWAL, HUMAN RIGHTS 110-118 (Central Law Publications, 16 th
Ed, 2016)(1998)
6. Dr. J.N. PANDEY, CONSTITUTIONAL LAW OF INDIA 60-201 (Central Law
Publications, 54th Ed, 2017)(1993)
7. MAHENDRA PAL SINGH, CONSTITUTION OF INDIA 47-54 (Eastern Book
Company, 12th Ed, 2013) (1950)

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DYNAMIC LINKS

1. www.manupatra.com
2. www.scconline.com
3. www.lexisnexis.com
4. www.legalservicesindia.com
5. www.un.org
6. www.indiankanoon.org
7. http://www.supremecourtcases.com
8. www.livelaw.in
9. www.sci.gov.in
10. www.advocatekhoj.com
11. /www.lawctopus.com

CASES

1. Tuka Ram and Anr. v. State of Maharashtra, 1979 AIR 185

2. Dola and Ors. v. The State of Odisha, Criminal Appeal No.1095 of 2018
3. Rajesh v. State of Haryana, Criminal Appeal No. 93 of 2019
4. Rayala M. Bhuvneswari v. Nagaphomender Rayala, AIR 2008 AP 98
5. Hiral P. Harsora And Ors v Kusum Narottamdas Harsora, CIVIL APPEAL NO.
10084 of 2016
6. K.V. Prakash Babu v. State of Karnataka, Criminal Appeal Nos. 1138-1139 of 2016
7. Arnesh Kumar v. State of Bihar & Anr, CRIMINAL APPEAL NO. 1277 OF 2014
8. Sreekumar & Anr. v Pearly Karun, 1999 (2) ALT Cri 77
9. Swati v Arvind Mudgal, MAT. APP. 5/2013
10. Shobha rani v Madhukar Reddi, 1988 AIR 121
11. Jai Prakash lodhi v state of Madhya Pradesh, Criminal Appeal No.589/2001
12. Balasubramanian v State Represented by Inspector of Police, CRIMINAL APPEAL
No. 1122 of 1998

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13. Justice K.S Puttuswamy (Ret’d) & Anr v. Union of India & Ors, WRIT PETITION
(Civil) No 494 OF 2012
14. Kamesh Panjiyar v. State of Bihar, (2005) 2SCC 388
15. Raju & Anr v. State of Haryana, AIR 2011 SC 568

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STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of India has the inherent jurisdiction to try, entertain and dispose
of the present case by virtue of Article 32 of The Constitution of India.

Article 32 of the Constitution of India-

Right to Constitutional remedies.

 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

I
Nidhi and Subodh, aged 22 and 24 respectively, are working professionals staying in Patiala.
They love each other and have been live-in partners since 2017. In December 2018, they
married each other after convincing their parents as per the Hindu rituals and customs.
After their marriage, their Dynamics of their relationship changed. The primary reason
according to nidhi being that subodh became a more dominating figure. He demanded for
sexual intercourse instead of asking for consent. He hurted her by not paying attention to her
feelings. When Nidhi talked about it with her mother and mother in law, both wanted her to
be a dutiful wife and be a constant companion to Subodh at any cost.

II
One day, Nidhi was watching a show on television on the topic of marital rape. Some of the
panelists strongly condemned exception II to Section 375 of the Indian Penal Code, 1860.
There were many arguments made such as the archaic concept of the wife being considered
as the husband's property and marital rape violating human rights and rights of women under
Article 21 of the Constitution. Rape within and outside the marriage also should not be
distinguished as demanded by them. On the other hand, few panelists argued that exception II
to Section 375 had been inserted to preserve the institution of marriage and protect the
society. Further, some more arguments were given such as the Indian law delivers proper
protection to women rights and legislature is well aware of the situation and demand of the
Indian society
.
III
Society for Women's Rights is an NGO that works for the development and welfare of
women. It helped in empowering women by bringing in women centric laws using rallies for
classification and enactment of women rights via legislations and judicial interventions. After
listening to the debate, Nidhi was moved and decided to fight for her rights. She approached
the NGO and narrated her grief to their activists. The members of the NGO decided to
approach the court and end the social plague of marital rape.

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IV
A Public Interest Litigation was filed by NGO before the Hon'ble Supreme Court of India
with respect to the violation of fundamental rights of married women of all ages in the form
of marital rape and it also challenges the constitutional validity of Exception II to Section 374
of the Indian Penal Code, 1860.

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QUESTIONS OF LAW

1. WHETHER EXCEPTION 2 TO SECTION 375 IS VALID AND SUSTAINABLE?

2. WHETHER THE EXISTING LAWS SAFEGUARDS THE RIGHTS OF WOMAN?

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SUMMARY OF ARGUMENTS

1. EXCEPTION 2 TO SECTION 375 IS VALID AND SUSTAINABLE.

The Counsel on behalf of the Respondent most humbly submits that Exception 2 to Section
375 is valid and sustainable. Marital rape of a woman above 15 years of age does not exist as
consent is presumed to be implied in a wedlock. The Exception holds true as marital rape
cannot be proved since consent is subjective in nature. This exception is valid because if
marital rape is criminalised it will wreak havoc on marriage as an institution and will lead to
violation of privacy by the state into the private lives of a couple.

2. THE EXISTING LAWS SAFEGUARDS THE RIGHTS OF WOMEN.

The existing laws does safeguard the rights of Women. The Domestic Violence Act 2005
protects women from all kinds of atrocities including sexual abuse, emotional abuse, physical
abuse and economical abuse. Section 498 A of IPC safeguards the rights of women from
cruelty imposed upon her by her husband or relatives of husband or both. It gives her special
rights to protect herself from abuse inflicted on her.

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ADVANCED ARGUMENTS

1. EXCEPTION 2 TO SECTION 375 IS VALID AND SUSTAINABLE.

The Counsel on behalf of Society for Women’s Rights most humbly submits that Exception
II to Section 375 of IPC, 1860 is constitutionally valid.

Acc to exception 2 of the IPC, 1860:

“Sexual intercourse by a man with his own wife, the wife not being under
fifteen years of age, is not rape”

There is no law against marital rape as a crime in the constitution of India because the
constitution makers and the people believed in the sacred bond of marriage. The were very
well aware of the consequences that the male gender would have to face, if marital rape was
criminalized. The state or the judiciary should not interfere in the four walls of a bedroom as
a marriage is a private affair.

1.1 PROVING RAPE AS A CRIME

Proving marital rape is not possible because it’s just the word of man against the word of the
woman. There is no evidence that can support the claims of the woman except the medical
examination and circumstantial evidence which does not incorporate the importance of
consent. Consent cannot be proven in the case of marital rape as consent is a subjective in
nature.

In the case of Tuka Ram & Anr. v. State of Maharashtra1:

In an appeal by special leave, the appellant contended that:-
(1) there is no direct evidence about the nature of the consent of the girl to the alleged act of
sexual intercourse. Therefore, it had to be inferred from the available circumstances

1
Tuka Ram & Anr. v. State Of Maharashtra, 1979 AIR 185 (India)

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and it could not be deduced from those circumstances that the girl had been subjected to
or was under any fear or compulsion as would justify an inference of any "passive
submission.”

As stated in the case of Dola and Ors. v. The State of Odisha2,

“It cannot be lost sight of that rape causes the greatest distress and
humiliation to the victim but at the same time a false allegation of rape can
cause equal distress, humiliation and damage to the Accused as well. The
Accused must also be protected against the possibility of false implication,
particularly where a large number of Accused are involved. It must,
further, be borne in mind that the broad principle is that an injured witness
was present at the time when the incident happened and that mainly such a
witness would not tell a lie as to the actual assailants, but there is no
presumption or any basis for assuming that the statement of such a witness
is always correct or without any embellishment or exaggeration.”

The consequences of a false allegation of rape faced by the accused is grave. It damages his
reputation beyond measure which cannot be mended. It’s a mental torture not just for him but
for his family as well.

In the case of Rajesh Vs. State of Haryana 3, the ramification of a false dowry case was
observed. The accused committed suicide because of the societal pressure. Later it was
established that the case filled was false. The accused left a suicide note in which he
expressed the ordeal he went though.
Such cases will continue, if marital rape is criminalised with graver repercussions for the
accused.

1.2 MARRIAGE AS AN INSTITUTION

The basic foundation of Marriage is built upon Trust. According to Hindu Customs and
traditions marriage is a holy union for 7 generations. The purpose of Marriage is for
procreation and the continuity of the human race. Regularisation of sexual intercourse is also
an important
2
Dola and Ors. v. The State of Odisha, Criminal Appeal No.1095 of 2018(India)
3
Rajesh v. State of Haryana, Criminal Appeal No. 93 of 2019 (India)

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facet of marriage as physical intimacy is an equally important requisite in a marriage along

with love trust and compatibility.

Denying Sexual intercourse in a marriage is equal to neglecting one’s marital obligations and
duties towards their respective spouses. A marriage demands certain pillars for it to sustain
on and physical intimacy is one of them. A married woman is expected to fulfil her marital
obligations towards her husband and fulfilling these rights do not violate the fundamental
rights enshrined in the constitution.

The criminalisation of Intercourse between a husband and a wife will result in an irrevocable
damage to the institution of marriage as a whole. It will destabilise the foundation of marriage
which eventually will affect the society on a larger scale. This also ultimately leads to the
unwarranted intrusion of the state into the private lives of a married couple which constitutes
violation of Right to Privacy which is a fundamental right. Consecutively this will install fear
in the minds of prospective husband as they will hesitate to enter into a marriage due to the
fear of a rape suit being slammed upon them. Petty fights will transform into law suits. This
will ultimately prove to be a burden for the judiciary due to the large no: of cases pending in
the courts and since the burden of proof will be on the accused, it will prove to be difficult to
establish his innocence since to prove consent the word of the wife is paramount.

In Rayala M. Bhuvneswari v. Nagaphomender Rayala4, the petitioner filed a divorce

petition in the Court against his wife and to substantiate his case sought to produce a hard
disc relating to the conversation of his wife recorded in U.S. with others. She denied some
portions of the conversation. The Court held that the act of tapping by the husband of
conversation of his wife with others without her knowledge was illegal and amounted to
infringement of her right to privacy under article 21 of the Constitution. These talks even if
true cannot be admissible in

evidence. The wife cannot be forced to undergo voice test and then asked the expert to
compare portion denied by her with her admitted voice. The Court observed that the purity of
the relation between husband and wife is the basis of marriage. The husband was recording

4
Rayala M. Bhuvneswari v. Nagaphomender Rayala, AIR 2008 AP 98 (India)

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her conversation on telephone with her friends and parents in India without her knowledge.
This is

clear infringement of right to privacy of the wife. If husband is of such a nature and has no
faith in his wife even about her conversations to her parents, then the institution of marriage
itself becomes redundant.

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2. THE EXISTING LAWS DOES SAFEGUARDS THE RIGHTS OF WOMEN.

There are various laws that protect and defend the rights of a woman.

2.1The Protection of Women from Domestic Violence Act ,2005.

“An Act to provide for more effective protection of the rights of women
guaranteed under the Constitution who are victims of violence of any kind
occurring within the family and for matters connected therewith or
incidental thereto.”

According to The Protection of Women from Domestic Violence Act , 2005 definition of
domestic violence.- For the purposes of this Act, any act, omission or commission or conduct
of the respondent shall constitute domestic violence in case it –
(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental
or physical, of the aggrieved person or tends to do so and includes causing physical abuse,
sexual abuse, verbal and emotional abuse and economic abuse; or
(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or
any other person related to her to meet any unlawful demand for any dowry or other property
or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any
conduct mentioned in clause (a) or clause (b); or (d) otherwise injures or causes harm,
whether physical or mental, to the aggrieved person.

2.2 Section 498 A states that:

Husband or relative of husband of a woman subjecting her to cruelty. –
Whoever, being the husband or the relative of the husband of a woman, subjects such woman
to cruelty shall be punished with imprisonment for a term which may extend to three years
and shall also be liable to fine.
For the purpose of this section , “ cruelty’’ means –
(a) any wilful conduct which is of such nature as is likely to drive the woman to commit
suicide or grave injury or danger to life limb or health ( whether mental or physical)
of the woman ; or

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(b) harassment of the woman where such harassment is with a view to coercing her or
any person related to her to meet any unlawful demand for any property or valuable
security or is on account of failure by her or any person related to her to meet such
demand.
This act protects women from any mental or physical torture which they have to
endure from her husband or relatives of husband.

2.3 THE DOWRY PROHIBITION ACT, 1961, (Act No. 28 of 1961)

In this act, `dowry’ means any property or valuable security given or agreed to be given
either directly or indirectly:
a. by one party to a marriage to the other party to the marriage; or
b. by the parents of either party to a marriage or by any other person, to either
party to the marriage or to any other person; at or before or any time after the marriage
in connection with the marriage of said parties but does not include dower or mahr in
the case of persons to whom the Muslim Personal Law (Shariat) applies.

Explanation II.- The expression `valuable security’ has the same meaning as in Sec.
30 of the Indian Penal Code (45 of 1860).

Dowry Prohibition Act, Indian law, enacted on May 1, 1961, intended to prevent the
giving or receiving of a dowry. Under the Dowry Prohibition Act, dowry includes
property, goods, or money given by either party to the marriage, by the parents of either
party, or by anyone else in connection with the marriage. The Dowry Prohibition Act
applies to persons of all religions in India.

The act has protected women from coming under the patriarchal influences and
binding to the unreasonable demands of the husband or the husband’s relatives. It
has helped numerous women from being looted in the name of matrimonial
obligations which are propagated by the society.

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As seen in the case of Hiral P. Harsora And Ors vs Kusum Narottamdas Harsora5,

“The phenomenon of  domestic violence is widely prevalent but has remained largely
invisible in the public domain. Presently, where a woman is subjected to cruelty by her
husband or his relatives, it is an offence under  section 498A of the Indian Penal Code. The
civil law does not however address this phenomenon in its entirety.

It is, therefore, proposed to enact a law keeping in view the rights guaranteed under articles
14, 15 and 21 of the Constitution to provide for a remedy under the civil law which is
intended to protect the woman from being victims of domestic violence  and to prevent the
occurrence of domestic  violence in the society.”

The rights of the woman have been protected.

2.4 Section 13 of Hindu Marriage Act

Any marriage solemnised, whether before or after the commencement of this Act, may, on a
petition presented by either the husband or the wife, be dissolved by a decree of divorce on
the ground that the other party.
  (i)  has, after the solemnisation of the marriage, had voluntary sexual intercourse with any
person other than his or her spouse; or
  (i.a)  has, after the solemnisation of the marriage, treated the petitioner with cruelty; or
  (i.b)  has deserted the petitioner for a continuous period of not less than two years
immediately preceding the presentation of the petition; or
(ii) has ceased to be a Hindu by conversion to another religion; or
(iii)  has been incurably of unsound mind, or has been suffering continuously or intermittently
from mental disorder of such a kind and to such an extent that the petitioner cannot
reasonably be expected to live with the respondent.

The wife can always seek recourse under section 13 of Hindu Marriage Act if she feels her
rights are being violated or if she is not happy in the marriage due to valid reasons. Divorce
and annulment can free the woman from the marriage if she cannot fulfil her marital
obligations or vice versa.

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Hiral P. Harsora And Ors v Kusum Narottamdas Harsora, CIVIL APPEAL NO. 10084 of 2016

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PRAYER

IN THE LIGHT OF THE ARGUMENTS ADVANCED AND AUTHORITIES CITED,

THE APPELLANT HUMBLY PLEADS BEFORE THE HON’BLE COURT TO:

1. DECLARE EXCEPTION II TO SECTION 375 IS VALID AND

SUSTAINABLE.

2. THE EXISTING LAWS ARE ADEQUATE TO SAFEGUARD THE RIGHTS

OF WOMEN AND REFRAIN FROM CRIMINALIZING INTERCOURSE IN
A MARRIAGE.

ANY OTHER ORDER AS IT DEEMS FIT IN THE INTEREST OF EQUITY,

JUSTICE AND GOOD CONSCIENCE.

FOR THIS ACT OF KINDNESS, THE APPELLANT FACTION SHALL BE DUTY

BOUND FOREVER

SD/-

(COUNSEL FOR THE RESPONDENT)

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