HUMBLY

1 SUBMITTED BEFORE THE BENCH OF THIS HONB’LE

SUPREMECOURT
SUPREME COURTOF INDIA

IN THE MATTER OF

KALKA DEVI (PETITIONER)

V.

UNION OF INDIA (RESPONDENT)

MEMORIAL FOR THE PETITIONER

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS.................................................................................................2

STATEMENT OF JURISDICTION......................................................................................3

STATEMENT OF FACTS......................................................................................................4

ISSUES RAISED......................................................................................................................5

SUMMARY OF ARGUMENTS..........................................................................................6-8

ARGUMENTS ADVANCED.............................................................................................9-18

PRAYER.................................................................................................................................19

LIST OF ABBREVIATIONS
AIR All India Reporter
Art Article
Hon’ble Honourable
S. Section
SC Supreme court
SCC Supreme Court Case

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STATEMENT OF JURISIDICTION

THE WRIT PITITION HAS BEEN FILLED AGAINST THE UNION OF INDIA BY THE
KALKA DEVI UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA. THE
PETITIONERS HAVE APPROCHED THE HON’BLE SUPREME COURT OF INDIA.

THIS MEMORIAL PUTS FORTH THE FACTS, ARGUMENTS AND CONTENTS OF

THE COUNCIL FOR THE PETITIONER.

THE COUNCILMOST HUMBLY AND RESPECTFULLY SUBMITS TO THE

JURISDICTION OF THIS COURT.

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STATEMENT OF FACTS

1. Kalka Devi got married to Suresh Prasad on 10-01-2019 as per Hindu rites and rituals
under the Hindu Marriage Act, 1995. The husband and his family members started torturing
Kalka Devi both, physically and mentally. On account of this, Kalka Devi was forced to leave
her matrimonial home within a year of her marriage.

2. Kalka Devi filed a Petition u/s. 125 of the Code of Criminal procedure, 1973 seeking
maintenance before the Family Court, New Delhi. A complaint case was also filed against the
husband and his family members under section 498A of the Indian Penal Code, 1860 and
Section 3 and 4 of the Dowry Prohibition Act, 1961.

3. Thereafter, Suresh Prasad filed a petition seeking restitution of conjugal rights under
Section 9 of the Hindu Marriage Act, 1955 before the Family Court, Court, New Delhi.

4. The Family Court, on 20-07-2021, issued summon to Kalka Devi seeking her presence in
the proceedings before the Court.

5. During the pendency of the suit before the Family Court, New Delhi for restitution of
Conjugal rights Kalka Devi filed a Writ Petition against the Union of India under Article 32
of the Constitution of India before the Hon’ble Supreme Court of India inter alia Challenging
the constitutional validity of following provisions:

A. Section 9 and Section 13 (1-A) (ii) of the Hindu Marriage Act, 1955; and
B. Order XXI Rule 32 and Order XXI Rule 33 of the Code of Civil Procedure, 1908 (to
the extent applicable to a decree of restitution of conjugal rights); and
C. Explanation 2 of Section 375 of India Penal Code, 1860 on the ground that it infringes
the fundamental rights under Article 14, 19 (1) (a), 19 (1)(d), 21 of the Constitution of
India.

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ISSUES RAISED

A. Whether instant matter is maintainable before the Hon’ble Court?

B. Whether Section 9, 13 (1-A) (ii) of the Hindu Marriage Act, 1955 and Order XXI
Rule 32 and 33 of the Code of Civil Procedure, 1908 is ex facie arbitrary and violates the
fundamental rights under Article 14, 19 (1) (d) and 21 of the Constitution of India?

C.Whether a decree of restitution of conjugal rights violates the right of privacy, right
of mental and physical health and right of dignity of a woman under Article 21 of the
Constitution of India?

D.Whether an act of the State can compel or induce a woman to surrender her
fundamental right of sexual and decisional autonomy which is intrinsic in the right to
privacy and personal liberty under Article 21 of the Constitution of India?

E. Whether a decree for restitution of conjugal rights forbids a person to exercise her
right to decide whether to have sexual intercourse with his/her partner/spouse thus
violating her right to bodily integrity and spatial and behavioural privacy?

F. Whether exception 2 of Section 375 of the Indian Penal Code legalizes marital rape
and violates the fundamental rights of married women under Article 14, Article 19 and
Article 21 of the Constitution of India?

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SUMMARY OF ARGUMENTS

A. The instant matter is maintainable before the Hon’ble Court.

It is humbly submitted before this Hon’ble High Court that the case is maintainable.

B. The Section 9, 13 (1-A) (ii) of the Hindu Marriage Act, 1955 and Order XXI Rule 32
and 33 of the Code of Civil Procedure, 1908 is ex facie arbitrary and violates the
fundamental rights under Article 14, 19 (1) (d) and 21 of the Constitution of India.

It is humbly submitted before this Hon’ble High Court that Section 9 of the HMA, 1955 talks
about restitution of conjugal rights. Section 13 (1-A) (ii) of the Hindu Marriage Act deals
with the solemnisation of the marriage, Order XXI Rule 32 and 33 of the Code of Civil
Procedure talks about decree for specific performance for restitution of conjugal rights, or for
an injunction. Section 9 has always been in controversy regarding its constitutional validity.
Section 9 of the Hindu Marriage Act denies the women to choose their career and is also an
instrument of forced sexual relationship so it violates the right to privacy guaranteed by Art.
21 However, the same was taken into consideration in true sense in 1983 by the Andhra
Pradesh High Court. In the case of T. Sareetha v. T. Venkata Subbaiah, the High Court
declared Section 9 of the HMA, 1955 as unconstitutional for being violative of the right to
privacy and human dignity guaranteed under Article 21 of the Constitution of India. Justice
P.A. Choudhary observed that Section 9 is the grossest form of violation of the right to
privacy. Forcing a spouse to have sexual relations with her spouse deprives her of the right to
control her own body. The judge even observed that Section 9 is not promoting any public
purpose, rather it is violative of right to equality under Article 14, and this violates the
freedom of association guaranteed under Article 19 (1)(c),(d),(e),(g) of the Indian
Constitution as well.

C.The decree of restitution of conjugal rights violates the right of privacy, right of
mental and physical health and right of dignity of a woman under Article 21 of the
Constitution of India.

It is humbly submitted before this Hon’ble High Court that If a husband or a wife has
withdrawn from the society of the other without any reasonable excuse, then, the aggrieved
party can file a petition before the District Court for restitution of conjugal rights. although
the legal provision allows both men and women equally to seek restitution of conjugal rights.

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However, although these provisions are gender-neutral it unfairly affects women. This is
because of the societal structure which exists in India which has evolved to advantage the
men. As a result, it puts the woman in a position that is not only unfair but may also be
harmful to her well-being if she is forced to live in her husband's home with his family,
against her own will.

D.An act of the State can compel or induce a woman to surrender her fundamental
right of sexual and decisional autonomy which is intrinsic in the right to privacy and
personal liberty under Article 21 of the Constitution of India.

It is humbly submitted before this Hon’ble High Court that Privacy is a recognition of the
sovereignty of the individual. Decisional autonomy then becomes an exercise of sovereignty
by the individual against “legislative or popular” morality. Right to privacy is one such right
which has come to its existence after widening up the dimensions of Article 21. Right to
privacy is an essential component of right to life and personal liberty under Article 21.

E.A decree for restitution of conjugal rights forbids a person to exercise her right to
decide whether to have sexual intercourse with his/her partner/spouse thus violating her
right to bodily integrity and spatial and behavioural privacy.

It is humbly submitted before this Hon’ble High Court that Bodily autonomy is essentially
the ability to choose. It means that one has the right to choose how they want to use their
body, and function it- without the fear of repercussions from someone else. Privacy is an
essential ingredient of modern dignity. It is linked to other freedoms, like that of association,
and speech.

F. Whether exception 2 of Section 375 of the Indian Penal Code legalizes marital rape
and violates the fundamental rights of married women under Article 14, Article 19 and
Article 21 of the Constitution of India?

It is humbly submitted before this Hon’ble High Court that with no concept of marital rape as
an offence in India, forcing a wife to stay with her husband is equivalent to taking away her
choice of having sexual intercourse or not because the husband can anytime violate her right
over her body without any legal actions. Exception 2 to Section 375 exempts unwilling
sexual intercourse between a husband and a wife over fifteen years of age from Section 375’s
definition of “rape” and thus immunizes such acts from prosecution. As per current law, a

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wife is presumed to deliver perpetual consent to have sex with her husband after entering into
marital relations. While unwilling sexual contact between a husband and a wife is recognized
as a criminal offense in almost every other country of the world.

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ARGUMENTS ADVANCED

A. Whether instant matter is maintainable before the Hon’ble Court?

It is humbly submitted before this Hon’ble High Court that Section 9 of the Hindu Marriage
Act recognises one aspect of conjugal rights — the right to consortium and protects it by
allowing a spouse to move court to enforce the right. The concept of restitution of conjugal
rights is codified in Hindu personal law now, but has colonial origins and has genesis in
ecclesiastical law. Similar provisions exist in Muslim personal law as well as the Divorce
Act, 1869, which governs Christian family law. Incidentally, in 1970, the United Kingdom
repealed the law on restitution of conjugal rights. In 1984, the Supreme Court had upheld
Section 9 of the Hindu Marriage Act in the case of Saroj Rani v Sudarshan Kumar Chadha,
holding that the provision “serves a social purpose as an aid to the prevention of break-up of
marriage”. Leading up to the Supreme Court intervention, two High Courts — those of
Andhra Pradesh and Delhi — had ruled differently on the issue. A single-judge Supreme
Court Bench of Justice Sabyasachi Mukherjee settled the law.

Section 9 of the HMA, 1955 talks about restitution of conjugal rights that states that in a
situation where a husband or wife withdraws from the society of the other spouse without
giving them any reasonable cause then the other spouse has the remedy to file a petition
before a district court for restitution of conjugal rights. If the court is satisfied that the
statements presented in the petition are true and there is no legal bar in granting the remedy
of restitution then the court may pass the decree of restitution of conjugal rights.

The question upon the constitutionality of Section 9 of the Hindu Marriage Act, 1955 was
raised in the case of T. Sareetha v. T. Venkatasubbiah, 1983, where it was argued that this
Section is constitutionally invalid as it violates the fundamental right to liberty guaranteed
under Article 21 of the Indian Constitution. The High Court of Andhra Pradesh held that
Section 9 of HMA is unconstitutional and void as it is violative of personal liberty which is a
fundamental right guaranteed under Article 21 of the Indian Constitution. It was stated by the
Court that “If the wife is compelled to live with her husband, this will also violate her right to
privacy.” and the Court further stated that “the remedy of restitution offends the inviolability
of the body and mind and invades the marital privacy and domestic intimacies of such
person.”

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B. Whether Section 9, 13 (1-A) (ii) of the Hindu Marriage Act, 1955 and Order XXI
Rule 32 and 33 of the Code of Civil Procedure, 1908 is ex facie arbitrary and violates the
fundamental rights under Article 14, 19 (1) (d) and 21 of the Constitution of India?

It is humbly submitted before this Hon’ble High Court that Marriage is one of the main
important vital roles in all human life. Every man and woman has dreams about their
marriage. After the marriage, the parties have some obligations to their life. After the
marriage, the sexual relationship between the husband and wife is also an important part of
the marriage. If any one of the spouses leaves the other, then the other spouse can claim the
restitution of conjugal rights.

During the time of introducing the provision for restitution of conjugal rights in the Special
Marriage Act, 1954 and the Hindu Marriage Act, 1955, there were heated debates in the
Parliament for and against it. It is significant to note that in 1983-1984, the constitutional
validity of section 9 of Hindu marriage act 1955 became a subject matter of debate as a result
of these case laws-

The constitutional validity of the provision for restitution of conjugal challenged before the
Andhra Pradesh High Court in Sareetha v. T. Venkatasubbiah, AIR 1983 AP 356. In this case
Sareetha claimed that section 9 of the Act is liable to be struck down as violative of the
fundamental rights in part III of the Constitution of India, specifically Article 14 and 21.
Justice Choudhary held that section 9 is a savage and barbarous remedy, violating the right to
privacy and human dignity guaranteed by Article 21 of the Constitution. It denies the women
her free choice whether, when and how her body is to become the vehicle for the procreation
of another human being. The woman loses her control over her most intimate decisions.
Clearly therefore, the right to privacy guaranteed by Article 21 is flagrantly violated by a
decree of restitution of conjugal right. As a result the section 9 of Hindu marriage act 1955
was unconstitutional.

The law is being challenged now on the main grounds that it violative of the fundamental
right to privacy. The plea by two law students argues that a court-mandated restitution of
conjugal rights amounted to a “coercive act” on the part of the state, which violates one’s
sexual and decisional autonomy, and right to privacy and dignity. In 2019, a nine-judge
Bench of the Supreme Court recognised the right to privacy as a fundamental right. In fact,
Justice Rohtagi in Harvinder Kaur v Harminder Singh, AIR 1984 Delhi 66, recognised that

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“the legislature has created restitution of conjugal rights as an additional ground for divorce”.
The court observed that the object of the section is to bring about cohabitation between
estranged parties so that they can live together. That in the privacy of home and married life
neither article 21 nor article 14 has any place.

Although the provision of restitution of conjugal rights has been upheld by the Supreme
Court earlier, legal experts have pointed out that the nine-judge Bench’s landmark verdict in
the privacy case set the stage for potential challenges to several laws such as criminalisation
of homosexuality, marital rape, restitution of conjugal rights, the two-finger test in rape
investigations. Although the law is ex-facie (‘on the face if it’) gender-neutral since it allows
both wife and husband to seek restitution of conjugal rights, the provision disproportionately
affects women. Women are often called back to marital homes under the provision, and given
that marital rape is not a crime, leaves them susceptible to such coerced cohabitation. It will
also be argued whether the state can have such a compelling interest in protecting the
institution of marriage that it allows a legislation to enforce cohabitation of spouses.

B. Whether a decree of restitution of conjugal rights violates the right of privacy, right
of mental and physical health and right of dignity of a woman under Article 21 of the
Constitution of India?

It is humbly submitted before this Hon’ble High Court that Section 9 of the Hindu Marriage
Act, 1995 states that if a spouse withdraws from the society of the other spouse without a
reasonable excuse, the District Court may decree the restitution (in this context, return to, or
restoration of) the ‘marital’ rights of the appellant spouse. Section 22 of the Special Marriage
Act, 1954 also provides the same, but is applicable to persons marrying under the Special
Marriage Act, 1954. Order 21, Rule 32 of CPC provides for the enforcement of a decree for
restitution passed by a District High Court.

The petitioners argue that although the provisions are gender neutral, it places a burden on
women. Further, they note the unequal power structures in Indian families, and how this
makes it more difficult for women to return to their husband’s home. It is noted that the
origin of laws on restitution of conjugal rights is feudal English Law, where women were
considered chattel, or property. They argue that this makes the provisions violative of
Articles 14 and 15(1). The petitioners also argue that the provisions are in violation of Article

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21. This is because the restitution of conjugal rights violates the respondent spouse’s right to
privacy and individual autonomy.

The aim of the Restitution Decree was only to encourage a united marriage and to prevent an
unwilling woman from engaging in sexual intercourse with the husband. The only objective
was to achieve ‘cohabitation’ between spouses, and therefore, ‘consortium’ was only
concentrated.

However, it was perhaps not realized by the Supreme Court and the Delhi High Court that
marital rape was legal in India. The husband can very well force his wife to enter into sexual
relationships without implications, except with a long-drawn-out petition for divorce based
on cruelty or a petition for domestic violence based on sexual violence. In fact, the decree
efficiently puts a wife under the pressure of forceful sex with her husband and in the course
of this process also strips her of physical autonomy, dignity, and the basic freedom to make
her own choices relating to her own life and body, by submitting an unwilled wife to “forced
cohabitation” and “consortium.”

Article 21 (Right to Privacy) of the Constitution.

The right to privacy (Article 21 of the Constitution), is not expressly guaranteed in the
Constitution. Privacy has no fixed definition.

The first case of the right to privacy in Supreme Court was the case of Kharak Singh v State
of UP. Justice Subba Rao said: “any definition of the right to privacy must encompass and
protect the personal intimacies of the home, family, marriage, motherhood, procreation, and
child-rearing.”

In Govind v State of MP, the Court established that right to privacy is a fundamental right,
but like its American counterpart, it was included in the liberty clause. Justice Mathew
observed that “any right to privacy must compass and protect the personal intimacies of the
home, the family, marriage, motherhood, procreation, and child-rearing.” It is a natural
necessity for a person to set individual limits and limit the entry of others into this sector.
Privacy is very hard to describe as a right which is still undefined in contours. It is not a unity
notion but it is more sensitive to enumeration than the definition in multi-dimensional terms.

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C.Whether an act of the State can compel or induce a woman to surrender her
fundamental right of sexual and decisional autonomy which is intrinsic in the right to
privacy and personal liberty under Article 21 of the Constitution of India?

It is humbly submitted before this Hon’ble High Court that Article 21 which deals with right
to life has been expanded to include the right to Life with Dignity. This provision has been
invoked to safeguard the rights of women such as right to divorce, to live a life free from
violence and the right to safe abortions. Article 21 is at the heart of the Constitution. It is the
most organic and progressive provision in our living Constitution. Article 21 can only be
claimed when a person is deprived of his ‘life or ‘personal liberty’ by the ‘State’ as defined in
Article 12. Thus, violation of the right by private individuals is not within the preview of
Article 21.

Article 21 secures two rights:

 Right to life, and

 Right to personal liberty.

It prohibits the deprivation of the above rights except according to a procedure established by
law. Article 21 corresponds to the Magna Carta of 1215, the Fifth Amendment to the
American Constitution, Article 40(4) of Eire 1937, and Article XXXI of the Constitution of
Japan, 1946. It is also fundamental to democracy as it extends to natural persons and not just
citizens. The right is available to every person, citizen or alien. Thus, even a foreigner can
claim this right. It, however, does not entitle a foreigner to the right to reside and settle in
India, as mentioned in Article 19 (1) (e). This Article is an all tell for Article 21. The first part
will understand the meaning and concept of ‘right to life’ as understood by the judiciary.
Further, the piece will lay out how several violations of the body, reputation and equality
have been understood and brought under the purview of the right to life and the right to live
with dignity.

In State of Punjab v. M.S. Chawla, it was held that the right to life guaranteed under Article
21 includes within its ‘ambit the right to health and medical care’.

In Vincent v. Union of India, the Supreme Court emphasised that a healthy body is the very
foundation of all human activities. Further, Article 47, a Directive Principle of State Policy,

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lays stress note on the improvement of public health and prohibition of drugs detrimental to
health as one of the primary duties of the state.

According to Article 21: “Protection of Life and Personal Liberty: No person shall be
deprived of his life or personal liberty except according to procedure established by law.”

Any private individual encroaching on these rights of another individual does not amount to a
violation of Article 21. The remedy for the victim, in this case, would be under Article 226 or
under general law. • The right to life is not just about the right to survive. It also entails being
able to live a complete life of dignity and meaning. • The chief goal of Article 21 is that when
the right to life or liberty of a person is taken away by the State, it should only be according
to the prescribed procedure of law.

Judicial Interpretation of Article 21 Judicial interpretations has ensured that the scope of
Article 21 is not narrow and restricted. It has been widening by several landmark judgements.
Important cases concerned with Article 21:

1. AK Gopalan v. State of Madras AIR 1950 SC 27: Until the 1950s, Article 21 had a bit of a
narrow scope. In this case, the SC held that the expression ‘procedure established by law’, the
Constitution has embodied the British concept of personal liberty rather than the American
‘due process’.

2. Maneka Gandhi v. Union of India Case AIR 1978 SC 597: This case overturned the
Gopalan case judgement. Here, the SC said that Articles 19 and 21 are not watertight
compartments. The idea of personal liberty in Article 21 has a wide scope including many
rights, some of which are embodied under Article 19, thus giving them ‘additional
protection’. The court also held that a law that comes under Article 21 must satisfy the
requirements under Article 19 as well. That means any procedure under law for the
deprivation of life or liberty of a person must not be unfair, unreasonable or arbitrary.

Gender equality and women’s empowerment-

Gender equity is the process of being fair to women and men. To ensure fairness, strategies
and measures must often be available to compensate for women’s historical and social
disadvantages that prevent women and men from otherwise operating on a level playing field.
Equity leads to equality. Gender equality requires equal enjoyment by women and men of

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socially-valued goods, opportunities, resources and rewards. Where gender inequality exists,
it is generally women who are excluded or disadvantaged in relation to decision-making and
access to economic and social resources. Therefore a critical aspect of promoting gender
equality is the empowerment of women, with a focus on identifying and redressing power
imbalances and giving women more autonomy to manage their own lives. Gender equality
does not mean that men and women become the same; only that access to opportunities and
life changes is neither dependent on, nor constrained by, their sex. Achieving gender equality
requires women’s empowerment to ensure that decision-making at private and public levels,
and access to resources are no longer weighted in men’s favour, so that both women and men
can fully participate as equal partners in productive and reproductive life.

D.Whether a decree for restitution of conjugal rights forbids a person to exercise her
right to decide whether to have sexual intercourse with his/her partner/spouse thus
violating her right to bodily integrity and spatial and behavioural privacy?

It is humbly submitted before this Hon’ble High Court that Section 9 of the Hindu Marriage
Act, 1955, which deals with restitution of conjugal rights, reads: “When either the husband or
the wife has, without reasonable excuse, withdrawn from the society of the other, the
aggrieved party may apply, by petition to the district court, for restitution of conjugal rights
and the court, on being satisfied of the truth of the statements made in such petition and that
there is no legal ground why the application should not be granted, may decree restitution of
conjugal rights accordingly.” Conjugal rights are rights created by marriage, i.e. right of the
husband or the wife to the society of the other spouse. The law recognises these rights— both
in personal laws dealing with marriage, divorce etc, and in criminal law requiring payment of
maintenance and alimony to a spouse. Section 9 of the Hindu Marriage Act recognises one
aspect of conjugal rights — the right to consortium and protects it by allowing a spouse to
move court to enforce the right. The concept of restitution of conjugal rights is codified in
Hindu personal law now, but has colonial origins and has genesis in ecclesiastical law.
Similar provisions exist in Muslim personal law as well as the Divorce Act, 1869, which
governs Christian family law. Incidentally, in 1970, the United Kingdom repealed the law on
restitution of conjugal rights.

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Reasons why has the law being challenged-

The law is being challenged now on the main grounds that it violative of the fundamental
right to privacy. The plea by two law students argues that a court-mandated restitution of
conjugal rights amounted to a “coercive act” on the part of the state, which violates one’s
sexual and decisional autonomy, and right to privacy and dignity. In 2019, a nine-judge
Bench of the Supreme Court recognised the right to privacy as a fundamental right.

Although the provision of restitution of conjugal rights has been upheld by the Supreme
Court earlier, legal experts have pointed out that the nine-judge Bench’s landmark verdict in
the privacy case set the stage for potential challenges to several laws such as criminalisation
of homosexuality, marital rape, restitution of conjugal rights, the two-finger test in rape
investigations.

Although the law is ex-facie (‘on the face if it’) gender-neutral since it allows both wife and
husband to seek restitution of conjugal rights, the provision disproportionately affects
women. Women are often called back to marital homes under the provision, and given that
marital rape is not a crime, leaves them susceptible to such coerced cohabitation. It will also
be argued whether the state can have such a compelling interest in protecting the institution
of marriage that it allows a legislation to enforce cohabitation of spouses.

E. Whether exception 2 of Section 375 of the Indian Penal Code legalizes marital rape
and violates the fundamental rights of married women under Article 14, Article 19 and
Article 21 of the Constitution of India?

It is humbly submitted before this Hon’ble High Court that Sec.375 of Indian Penal Code,
define the term Rape, which provides that, to constitute the offence of rape the essentials are
required which are,

1.Sexual intercourse must be left with a woman by a man, as understood in the term of
section 375 (a) to (d).

2.Such sexual intercourse must tall under any of seven circumstances,

 Against her will;

 Without her consent;

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 With consent obtained under fear of death or hurt;

 Consent is given under a misconception of fact that the man is her husband;
 Consent is given because of unsoundness of mind, intoxication or under influence of
any stupefying or unwholesome substance;
 With a woman under eighteen year of age, with or without her consent
 With a woman who is unable to communicate her consent.

But aforesaid essentials for rape are having some exception also. Such exceptions are;

 If a woman who does not physically resist for penetration, by this reason it shall not
be regarded as the Sexual Activity.
 A medical procedure or intervention shall not shape an offence of rape.
 Sexual intercourse or sexual act by a man with his wife, the wife not being under 15
year of age is not rape.

The third exception is known as Marital rape". And this exception of section 375, articulates
that non-consensual sexual intercourse by the husband with his wife, if the wife is under the
age of 15 years, then only intercourse praise as rape. Mean if the wife is over the age of 15 yr.
than it would not be rape. By reading the Exception-2 with 7 circumstances, then the
exception will prevail off. It means that if the wife is over 15 years then her consent or will
become immaterial.

For this Prof. PSA Pillai wrote, in his book, Criminal Law I would code, if, thus, keep outside
the ambit of rape a coercive and non-consensual sexual intercourse by a husband with his
wife and thereby allows a husband to exercise, with impunity, his marital right of (non-
consensual or undesired) intercourse with his wife.

In the case of 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 honour & offends her self-esteem &dignity it
degrades and humiliates the victims.

Even in case of Independent though v. Union of India, Justice Deepak Gupta held that can
she be deprived of her right to say yes or no to having sex with having her husband, even if
he has consented for the marriage? In my view, there is only one answer to this and the

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answer must be a resounding NO. It is also held in this case that, constitutionally a female has
equal as a male and no statute 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.

Article 21 gives every person right to like of dignity the right of a woman to maintain her
bodily integrity is effectively destroyed as her husband effectively has fall control over her
body and can subject her to sexual intercourse without her consent or without her willingness
since such an activity would not be rape. Anomalously, though her husband can rape her he
cannot molest her for if he does so he could be punished under the provision of the Indian
Penal Code.

For striking out the patriarchy and gender inequality Justice Chandrachud said in the case,
Joseph shine v. Union of India (2018), he wrote, the boundaries of that space are defined by
what women should or should not be. A society which perceives women as pare and an
embodiment of virtue attack to rape, honour killing, sex-determination and infanticide".

He wanted to say that society expected women to be mute spectators too, and even accepts
"egregious discrimination" at home, and that "anachronistic conceptions of chastity' and
honour' have dictated the social and cultural lines of women, depriving them of the
guarantees of dignity and privacy, contained in the constitution." The notion that women,
who are equally entitled to the protections of the constitution as their male Counterparts may
be treated as an object capable of being possessed, in an exercise of subjugation and inflicting
indignity.

Henceforth, in the light of the above observation, it can be concluded that exception-2 of
Section 375 is constitutionally invalid and it shall be struck down.

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PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly prayed that this Hon’ble Court may be pleased to adjudge and declare that:
1. The instant matter is maintainable before this Hon’ble Court.
2. Section 9, 13 (1-A) (ii) of the Hindu Marriage Act, 1955 and Order XXI Rule 32 and
33 of the Code of Civil Procedure, 1908 is ex facie arbitrary and violates the
fundamental rights under Article 14, 19 (1) (d) and 21 of the Constitution of India.
3. A decree of restitution of conjugal rights violates the right of privacy, right of mental
and physical health and right of dignity of a woman under Article 21 of the
Constitution of India.
4. State cannot compel or induce a woman to surrender her fundamental right of sexual
and decisional autonomy which is intrinsic in the right to privacy and personal liberty
under Article 21 of the Constitution of India.
5. A decree for restitution of conjugal rights forbids a person to exercise her right to
decide whether to have sexual intercourse with his/her partner/spouse.
6. Exception 2 of Section 375 of the Indian Penal Code legalizes marital rape and
violates the fundamental rights of married women under Article 14, Article 19 and
Article 21 of the Constitution of India.

And pass any other order, direction, or relief that this Hon’ble Court may deem fit in the
interests of justice, equity and good conscience.

All of which is humbly prayed,

Counsels for the PETITIONER

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