TC-008

12TH KIIT INTRA MOOT COURT COMPETITION, 2020

IN THE HON’BLE SUPREME COURT OF INDIA

IN THE MATTER OF:

CIVIL APPEAL NO.__________/ 2020

ARISING OUT OF WRIT PETITION NO._________/ 2020

KALKA DEVI

(APPELLANT)

V.

UNION OF INDIA

(RESPONDENT)

UPON SUBMISSION TO THE HON’BLE

AND HIS COMPANION JUSTICES TO THE HON’BLE SUPREME COURT OF INDIA

----- MEMORIAL FOR THE RESPONDENTS -----

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS ……………………………………………………………………………….…4-5

INDEX OF AUTHORITIES ……………………………………………………………………………...……6-7

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

8

STATEMENT OF FACTS …………..…………………………………………………………………………...9

STATEMENT OF ISSUES ………………..……………………………………………………………………10

STATEMENT OF ARGUMENTS ………………………………………………………………………….11-13

ARGUMENTS ADVANCED ……………………………………………………………………………….14-24

[1] That the writ petition is not maintainable in the present case …………………………………...…..14-15

(1.1) Writ Petition has been filed prematurely ………………..…………………………………..14

(1.2)Alternative remedy has not been exhausted ……………………………………………...14-15

[2] That Section 9, 13(1-A) (II) of the Hindu Marriage Act, 1955 & Order XXI Rule 32 & 33 of the Code
of Civil Procedure, 1908 is not ex facie arbitrary and doesn’t violates the fundamental rights u/a 14,19(I)
(d) & 21 of the Constitution ……………………………………………………………………….15-17

(2.1) Sec 9 & 13 (1-A) doesn’t cause any disproportionate burden on women …………….15-16

(2.2) Order XXI Rule 32 & 33 of CPC are not hostile to the Constitution …………………..16-17

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[3] That a decree of restitution of conjugal rights causes no violation of the right of privacy, right and
mental health and right of dignity of a woman u/a 21 of the Constitution……………………………...17-18

(3.1) Promotes Reconciliation …………………………………………………………………….17-18

(3.2) Causes no of Right of privacy, Physical & Mental health and dignity………………..…18

[4] That an act of a state can enforce or induce but doesn’t compel a woman to surrender her
fundamental right of sexual or decisional autonomy which is intrinsic in the right to privacy and personal
autonomy u/a 21 of the Constitution of India……………………………………………………………..19-20

(4.1)Protection of fundamental rights………………………………………………………….…19-20

[5] That a decree for restitution of conjugal rights doesn’t forbids a woman to exercise her right to have
sexual intercourse with his/her partner/spouse thus this doesn’t violates her right to bodily integrity and
Spatial behavioral privacy…………………………...……………………………………………………..20-22

(5.1)Focuses on Consortium…………………………………………………………………………...21

(5.2)Restitution doesn’t contravene with the fundamental rights……………………………...21-22

[6] That exception 2 of Section 375 of IPC doesn’t legalizes marital rape & not violates the fundamental
rights of a married woman u/a 14, 19 & 21 of the Indian Constitution………………………………...22-24

(6.1)Spiritual Consent & Custom…………………………………………………………………..…23

(6.2)Presumption of Constitutionality…………………………………………………………....23-24

PRAYER FOR RELIEF………………………………………………………………………..……….……….25

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LIST OF ABBREVIATIONS

ABBREVIATIONS EXPANSIONS
& AND
§ SECTION
¶ PARAGRAPH
AIR ALL INDIA REPORTER
ALL ALLAHABAD HIGH COURT
ANR. ANOTHER
ART. ARTICLE / ARTICLES
BOM BOMBAY HIGH COURT

Const. CONSTITUTION OF INDIA, 1949

CPC CODE OF CIVIL PROCEDURE, 1908
Cr.P.C CODE OF CRIMINAL PROCEDURE, 1973
Cri.L.J CRIMINAL LAW JOURNAL

DEL DELHI HIGH COURT

DIST. DISTRICT

DPA THE DOWRY PROHIBITION ACT, 1961

Dtd. DATED
Ed. EDITION
Eds. EDITORS
H.C HIGH COURT

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HMA HINDU MARRIAGE ACT, 1955

Hon’ble HONORABLE
IPC INDIAN PENAL CODE,1860
Ld. LEARNED
NLR NEW LAW REPORTS
ORS. OTHERS
REP. REPORTS.
SC SUPREME COURT
SCC SUPREME COURT CASES
SCR SUPREME COURT RECORDS
U/A UNDER ARTICLE
U/S UNDER SECTION
UOI UNION OF INDIA
v. VERSUS
Viz. NAMELY
w.r.t WITH RESPECT TO

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INDEX OF AUTHORITIES

S.N. CASE CITATION ¶ PAGE

1. Andhra Industrial Works v. Chief Controller of AIR 1974 SC 1539 ¶7 14

Imports and Ors.
2. A.V.Venkateshwaram v. R.S. Wadhwami AIR 1961 SC 1906 ¶9 14

3. Asstt. Collector of Central Excise v. Jainson Hosiery AIR 1979 SC 1889 ¶9 15

4. Anurag Mittal v. Shaily Mittal 2018 SCC OnLine ¶ 11 15

SC 1136
5. A. Diravidamani v. Chitradevi & Ors. LQ 2008 HC 5191 ¶ 13 16

6. A.K. Gopalan v. State of Madras AIR 1950 SC 27 ¶ 27 22

7. Bai Jiva v. Narsing Lalbhai AIR 1971 Bom 264 ¶ 18 18

8. Calcutta Gas Co. Ltd. v. State of West Bengal AIR 1962 SC 1044 ¶8 14

9. Chiranjitlal Chowdhary v. Union of India AIR 1951 SC 41 ¶ 32 24

10. Dular Koer v. Dwarka Nath Misser (1907) ILR 34 Cal ¶ 26 21

971
11. Deivanai Achi v. R.M AL. Ct. Dhidambaram Chettiar AIR 1954 Mad 657 ¶ 31 23

12. Evans v. Evans (1948) 1 K.B 175 (7) ¶ 26 21

13. Gan Shyam Das v. Anant Kumar Sinha AIR 1991 SC 2251 ¶ 13 16

14. Gurucharan Singh v. Smt. Waryam Kaur AIR 1960 Punj. 422 ¶ 16 18

15. Harminder Kaur v. Harminder Singh Chaudhary AIR 1984 Del. 66 ¶ 12 16

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16. Kanna v. Krishnaswami AIR 1972 Mad. 247 ¶ 16 17

17. Kharak Singh v. State of UP AIR 1963 SC 1295 ¶ 19 19

18. KS Puttaswamy & Anr. v. Union of India (2017) 10 SCC 1 ¶ 20 20

19. L. Chandrakumar v. Union of India AIR 1997 SCC 1125 ¶9 14

20. Madhukar Bhaskar Sheorey v. Saral Madhukar AIR 1973 Bom 55 ¶ 14 16

Sheorey
21. Maneka Gandhi v. Union of India 1978 AIR 597 ¶ 17 18

22. Navtej Singh Johar v. Union of India (2018) 10 SCC ¶ 24 21

23. Nimeshbhai Bharatbhai Desai v. State of Gujarat 2018 SCC OnLine ¶ 31 23

Guj. 732
24. New Delhi Municipal Committee v. State of Punjab AIR 1997 SC 2847 ¶ 32 24

25. Romesh Thapad v. Union of India AIR 1950 SC 124 ¶8 14

26. Ranjana Kejriwal v. Vinod Kumar Kejriwal AIR 1997 Bom. 580 ¶ 19 19

27. R. Rajagopal v. State of Tamil Nadu (1994) 6 SCC 632 ¶ 20 20

28. Raman Kumar v. Smt. Baksho Thandi AIR 2008 P H 95 ¶ 26 21

29. Smt. Jayashree Ramesh Londhe v. Ramesh Bhikaji AIR 1984 Bom 302 ¶ 12 16
Londhe
30. Samraj Nadar v. Mohinder Singh AIR 1970 Mad 434 ¶ 16 17

31. Shakila Banu v. Gulam Mustafa AIR 1971 Bom 166 ¶ 17 18

32. Smt. Saroj Rani v. Sudarshan Kumar Chadha (1984) 4 SCC 90 ¶ 22 20

33. Seetha Yamma v. Venkatarama AIR 1940 Mad 906 ¶ 25 21

34. Suchita Srivastava v. Chandigarh Administration (2017) 10 SCC 800 ¶ 28 22

35. Tulsa v. Pannalal AIR 1963 Madh.5 ¶ 16 18

36. T.Sareetha v. Venkata Subbaiah AIR 1983 AP 356 ¶ 19 19

37. Tirath Kaur v. Kirpal Singh PLR (1963) 65 315 ¶ 28 22

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38. Venkatah Subayya v. Veerayya AIR 1969 AP 92 ¶ 13 16

39. Vidhya Viswanathan v. Kartik Balakrishan (2014) 15 SCC 221 ¶ 24 21

39. Y. Lakshmaiah v. Esso Eastern Inc.& Ors. AIR 1974 AP 32 ¶ 13 16

LIST OF STATUTES

1 THE INDIAN PENAL CODE, ACT NO. 45 OF 1860, INDIA CODE (1860).
.
2 CODE OF CIVIL PROCEDURE, ACT NO. 5OF 1908, INDIA CODE (1908).
.
3 THE DOWRY PROHIBITION ACT, ACT NO. 28 OF 1961, INDIA CODE (1961).
.
4 THE HINDU MARRIAGE ACT, ACT NO. 25 OF 1955, INDIA CODE (1955).
.

BOOKS REFERRED

1 RATANLAL AND DHIRAJLAL, THE INDIAN PENAL CODE (34TH ED. 2018)
.
2 R. A. NELSON, INDIAN PENAL CODE 2199 (11TH ED. 2016)
.
3 JUSTICE KHASTGIR, CRIMINAL MAJOR ACTS (10TH ED. 2016)
.
4 LEXIS NEXIS, MULLA’S HINDU LAW, HINDU MARRIAGE ACT (23RD ED.
. 2018)
5 M.P.JAIN, INDIAN CONSTITUTIONAL LAW (8TH ED. 2019)
.
6 DR. S.R.MAYNENI, CODE OF CIVIL PROCEDURE & LIMITATION ACT (4TH

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. ED.)

WEB RESOURCES

1. www.jstor.org (JSTOR)
2. www.judis.nic.in (SUPREME COURT OF INDIA OFFICIAL)
3. www.manupatrafast.com (MANUPATRA)
4. www.scconline.com (SCC ONLINE)

STATEMENT OF JURISDICTION

The Respondents humbly submits to the writ jurisdiction of this Hon’ble Supreme Court u/a 32 of
the Indian Constitution, 1949. This Hon’ble Court has the jurisdiction to entertain Writs u/a 32 for
violation of fundamental rights in Part III of the Constitution.

Article 32:

’32. Remedies for enforcement of rights conferred by this Part –

(1) The right to move the Supreme Court by appropriate proceeding 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 & certiorari, which may be
appropriate, for the enforcement of any rights conferred by this Part.

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(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.

STATEMENT OF FACTS

(1.) 10th January, 2017- Kalka Devi got married to Suresh Prasad as per Hindu rites & rituals under
the Hindu Marriage Act, 1955. Both physical and mentor torture was done to Kalka Devi by her
Husband and by Suresh’s family members. Due to all these acts, Kalka Devi was forced to leave her
matrimonial home within the span of a year of her marriage.

(2.) U/S. 125 of the Code of Criminal Procedure, 1973 a petition was filed by Kalka Devi to seek
maintenance before the Family Court, New Delhi. U/S. 498A of the Indian Penal Code, 1860 and
Section 3 & 4 of the Dowry Prohibition Act, 1961; a complaint case was also filed against Suresh
Prasad and his family Members.

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(3.) 20th July, 2019- The Family Court of New Delhi issued summon to Kalka Devi seeking her
presence in the proceedings before the court as Suresh Prasad has filed a petition seeking restitution
of conjugal rights u/s. 9 of the Hindu Marriage Act, 1955 before the Family Court, New Delhi.

(4.) During the pendency of such suit regarding restitution of conjugal rights, Kalka Devi filed a
Writ Petition against the Union of India u/a 32 of the Constitution of India, 1949 before the
Hon’ble Supreme Court of India inter alia challenging the constitutional of certain provisions:

A. Sec 9 & Sec 13 (1-A) (ii) of the Hindu Marriage Act, 1955;
B. Order XXI Rule 32 & 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 Sec 375 of Indian Penal Code, 1860 on the ground that it infringes the
fundamental rights u/a 14, 19 (1) (a), 19 (1) (d) & 21 of the Constitution of India.

STATEMENT OF ISSUES

--ISSUE: I—

Whether the writ petition filed u/a 32 of the Constitution of India by Kalka Devi against Union
of India is maintainable in the present case?

--ISSUE: II—

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

--ISSUE: III—

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Whether a decree of restitution of conjugal rights violates the right of privacy, right of
mental & physical health & right of dignity of a woman u/a 21 of the Constitution of
India?

--ISSUE: IV—

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

--ISSUE: V—

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 & spatial behavioral privacy?

--ISSUE: VI—

Whether exception 2 of Section 375 of the Indian Penal Code legalizes marital rape and
violates the fundamental rights of married women u/a 14, 19 and 21 of the Constitution of
India?

STATEMENT OF ARGUMENTS

(1.) THAT THE WRIT PETITION IS NOT MAINTAINABLE IN THE PRESENT CASE-

(¶ 1) The respondents hereby contend that there has been no violation of the fundamental
rights in the present case. Moreover, the writ petition has been filed prematurely. The basic
rule of law states that the writ petition u/a 32 of the Indian Constitution can be filed only when
fundamental rights are violated. Even, the alternative remedy has not been exhausted.
Henceforth, the writ petition is not maintainable

(2.)THAT SECTION 9, 13 (1-A) (II) OF THE HINDU MARRIAGE ACT, 1955 & ORDER XXI
RULE 32 & 33 OF THE CODE OF CIVIL PROCEDURE, 1908 IS NOT EX FACIE ARBITRARY

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& DOESN’T VIOLATES THE FUNDAMENTAL RIGHTS U/A 14, 19 (I) (D) & 21 OF THE
CONSTITUTION OF INDIA.

(¶ 2) It is humbly contended before the Hon’ble Supreme Court that Sections 9 and 13 (1-A)
(ii) of the Hindu Marriage Act, 1955 & Order XXI Rule 32 and 33 of the Code of Criminal
Procedure, 1908 is not at all arbitrary in nature and doesn’t leads to the violation of the
fundamental rights u/a 14, 19 (I) (d) & 21 of the constitution of India. In fact, the Restitution
of Conjugal Rights protects the fundamental rights of both the husband and the wife under the
ambit of law. Just because a section has the scope to be misconstrued, it doesn’t imply it
should exist. Its aim is to save one of the primary facets of marriage and resume cohabitation.

(3.)THAT A DECREE OF RESTITUTION OF CONJUGAL RIGHTS CAUSES NO VIOLATION OF

THE RIGHT OF PRIVACY, RIGHT OF MENTAL & PHYSICAL HEALTH AND RIGHT OF
DIGNITY OF A WOMAN U/A 21 OF THE CONSTITUTION OF INDIA.

(¶ 3) The respondent humbly submits before the Hon’ble Supreme Court that the decree of
restitution of conjugal rights doesn’t cause any violation of the Right of Privacy, Right of
Mental & Physical Health and Right of dignity of a woman u/a 21 of the Indian Constitution.
The principle of restitution of conjugal rights was created to prevent the separation between
spouses. The reasonable excuse for the separation of spouse is a clear defense for restitution of
conjugal rights. Henceforth, it promotes the reconciliation between the spouses and also
maintains a good matrimonial relationship between them. This clears out that there is no
violation of the legal rights related to privacy, mental and physical health and dignity of a
woman.

(4.)THAT AN ACT OF THE STATE CAN ENFORCE OR INDUCE A WOMEN TO SURRENDER HER
FUNDAMENTAL RIGHTS OF SEXUAL AND DECISIONAL AUTONOMY WHICH IS INTRINSIC

IN THE RIGHT TO PRIVACY AND PERSONAL LIBERTY U/A 21 OF THE CONSTITUTION OF

INDIA.

(¶ 4) It is humbly submitted by the respondents before the Hon’ble Supreme Court that any act
of the state can enforce but it cannot compel a woman to surrender her Fundamental rights of

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sexual & decisional autonomy that is intrinsic in the right to privacy & personal liberty u/a 21
of the Indian Constitution. Challenges forming in the married relationship have to be
addressed and such addressing the issue has been held constitutionally valid per se. The State
doesn’t compel a woman to surrender her sexual autonomy rather; it ensures and enforces
marital obligations. This cannot be deemed to restrict the autonomy of a woman.

(5.)THAT A DECREE FOR RESTITUTION OF CONJUGAL RIGHTS DOESN’T FORBIDS A PERSON

TO EXERCISE HER RIGHT TO DECIDE WHETHER TO HAVE SEXUAL INTERCOURSE WITH

HIS/HER PARTNER/SPOUSE THUS DOESN’T VIOLATES HER RIGHT TO BODILY INTEGRITY

AND SPATIAL & BEHAVIORAL PRIVACY .

(¶ 5) It is humbly contended before the Hon’ble Supreme Court that a decree for restitution of
conjugal rights doesn’t forbids a person to exercise her right to decide whether to have sexual
intercourse with his/her partner/spouse thus this also doesn’t lead to the violation of her right
to bodily integrity and spatial & behavioral privacy. Focus on Consortium rather than sexual
cohabitation. Sexual relationship is not the only purpose of the marriage. Restitution provides
a chance to live together again and sort out the problems that was and could arise. So, the
conjugal right not at all forbids a person to exercise the right to decide on the terms of having
sexual intercourse.

(6.)THAT EXCEPTION 2 OF SECTION 375 OF THE IPC DOESN’T LEGALIZE MARITAL RAPE
AND NOT VIOLATES THE FUNDAMENTAL RIGHTS OF MARRIED WOMAN U/A 14, 19 & 21
OF THE INDIAN CONSTITUTION.

(¶ 6) The Respondent humbly submits before the Hon’ble Supreme Court that the exception 2
of section 375 of the IPC doesn’t legalize marital rape and not also violates the fundamental
rights of married woman u/a 14, 19 & 21 of the Indian Constitution. Marriages have been
traditionally performed in different parts of the country with such traditions and customs, it
should be respected. By virtue of getting married, both the spouses spiritually consents to live
together and performs the marriage essentials without any infringement to each of the others
fundamental rights.

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ARGUMENTS ADVANCE

[1.]THAT THE WRIT PETITION IS NOT MAINTAINABLE IN THE PRESENT CASE-

(¶ 7) The Writ Petition can be filed u/a 32 of the Indian Constitution for the enforcement of
the fundamental rights, as guaranteed by part III of the Constitution. 1 In the present case there
has not been any such violation of the fundamental rights since, the action taken by the state
was in furtherance of economic, social and natural justice and thus cannot be termed as
arbitrary and hence, such writ petition is not maintainable.

[1.1] Writ Petition has been filed prematurely-

1
Andhra Industrial Works v. Chief Controller of Imports and others, AIR 1974 SC 1539.

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(¶ 8) The respondent humbly submits that the court has held that only if there is a violation of
Fundamental Rights it can step under the jurisdiction of Article 32. 2 The petitioner is raising a
mere scholarly objection, without any locus standi. There has been no grievous or large scale
violation of the fundamental rights. Hence when there is no damnus, the petitioner cannot seek
a remedy. When a person acquires a locus standi, he has to have a personal or individual right
which was violated or threatened to be violated.3 In the present case there was no violation of
right to life or personal liberty by the actions of the respondents. 4 Moreover, the act of the
state has been to make the relationship under the Hindu Marriage Act for the spouse better
without causing any infringement of the rights enshrined u/a 32 of the Constitution of India.

[1.2] Alternative remedy has not been exhausted-

(¶ 9) The tribunals are competent enough to hear this particular case.5 Alternative remedy is a
bar unless there is a complete lack of jurisdiction in the officer or authority to take impugned
actions,6 however the existence of a competent body to hear this particular case questions the
maintainability of the writ petition filed. Where there is alternative statutory remedy court
should not interfere unless the alternative remedy is too dilatory or cannot grant quick relief.
Since, the alternative remedy has not been exhausted. Thus, the respondents submit that the
writ petition is not maintainable because of the aforesaid reasons.7

[2.] THAT SECTION 9, 13 (1-A) (II) OF THE HINDU MARRIAGE ACT, 1955 & ORDER
XXI RULE 32 & 33 OF THE CODE OF CIVIL PROCEDURE, 1908 IS NOT EX FACIE
ARBITRARY & DOESN’T VIOLATES THE FUNDAMENTAL RIGHTS U/A 14, 19 (I) (D) & 21
OF THE CONSTITUTION OF INDIA.

(¶ 10) The respondents humbly submits before the Hon’ble Supreme Court that the sections
governing the restitution of conjugal rights and the Order XXI Rule 32 & 33 of CPC are not

2
Romesh Thapar v. Union of India, AIR 1950 SC 124.
3
Calcutta GasCo. Ltd. v. State of West Bengal, AIR 1962 SC 1044.
4
Article 21 of the Constitution of India.
5
L. Chandrakumar v.Union of India, AIR 1997 SCC 1125.
6
A.V.Venkateshwaran v. R.S. Wadhwani, AIR 1961 SC 1906.
7
Asstt. Collector of Central Excise v. Jainson Hosiery, AIR 1979 SC 1889.

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ex facie arbitrary and there is no such infringement of the fundamental rights u/a 14,19 (1) (D)
& 21 of the constitution on the path of the individual.

[2.1]Sec 9 & 13 (1-A) doesn’t cause any disproportionate burden on women-

(¶ 11) Section 9 of the Hindu Marriage Act, 1955 is basically the codification of preexisting
laws and serves a social purpose in ensuring that marriages do not break up. If understood in
the “proper perspective” such provision doesn’t leads to any violation of the fundamental
rights, rather it makes an effort that the basic structure of the constitution is not harmed by the
acts of the individuals. The law safeguards the fundamental rights as it enforces equality of
both the genders as far as relief is concerned. 8 Also there has been equality on the basis of
cooling period and time for divorce u/s 13(1-A) of HMA enacted by the Amending Act 44 of
1964 that “either party to a marriage” is allowed to present a petition on the ground as per
the abovementioned provision.9

(¶ 12) The provision provides both the parties a year just after the decree for restitution of
conjugal rights is passed to cool down so that no right is violated. After that both the spouse
with mutual consent and will can seek for divorce or can live together again as the things
permit.10 The decree is so useful that it gives both the parties the cooling off time of one year
and if the marriage cannot be resolved by the decree then it is considered to be dissolved and
even if the restitution decree is not followed then the court finishes off the marriage on the
ground of non-compliance. This provides both the parties to enjoy their rights without any
intervention causing no such violation.11

[2.2]Order XXI and Rule 32 & 33 of CPC is not hostile to the Constitution-

(¶ 13) When there is threat to the possession of any property the remedy available to the party
is availed by approaching the Civil Court & gets a decree for in-junction restraining the
opposite party from interfering with his possession.12 The opposite party has to obey the
8
Article 14 of the Constitution.
9
Anurag Mittal v. Shaily Mittal, 2018 SCC OnLine SC 1136.
10
Smt. Jayashree Ramesh Londhe v. Ramesh Bhikaji Londhe, AIR 1984 Bom 302.
11
Harminder Kaur v. Harminder Singh Chaudhary, AIR 1984 Del 66.
12
A. Diravidamani v. Chitradevi & Ors. , LQ 2008 HC 5191

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decree and in any case if the party fails to obey it, the decree-holder can get the decree
enforced by moving to the court under Rule 32 Order 21 CPC. 13 The rule inter alia provides
that when the party against whom a decree for injunction has been passed has had an
opportunity of obeying the decree.14 This provides the spouse to follow as per the fundamental
rights of his/her decisional autonomy. The rule gives protection to the spouse in exercising
his/her rights and providing aid if there has been violation of the right. 15 It is significant that
for restitution of conjugal rights the sanction is provided by the court where the disobedience
to such a decree is willful/ deliberate. This means that the state or the provision is not causing
any grief violation of the fundamental rights, rather an injunction is passed so as to provide
any infringement of the rights by the spouse to the other partner.

(¶ 14) This serves a social purpose as an aid to the prevention of break-up of marriage. 16 This
is so as an inducement by the court in appropriate case when the court has decreed restitution
for conjugal rights and that the court can only decree if there is no just reason for not passing
decree for restitution of conjugal rights to offer inducement for the husband or wife to live
together in order to give them an opportunity to settle up the matter amicably.

[3.] THAT A DECREE OF RESTITUTION OF CONJUGAL RIGHTS CAUSES NO VIOLATION OF

THE RIGHT OF PRIVACY, RIGHT OF MENTAL & PHYSICAL HEALTH AND RIGHT OF
DIGNITY OF A WOMAN U/A 21 OF THE CONSTITUTION OF INDIA.

(¶ 15) The respondents humbly submits before the Hon’ble Court that the said provision in the
Hindu Marriage Act, 1955 doesn’t lead any infringement of the fundamental rights of right of
privacy, mental & physical health and right of dignity of a woman u/a 21 of the Indian
Constitution.

[3.1]Promotes Reconciliation-

13
Y. Lakshmaiah v. Esso Estern Inc & Ors. , AIR 1974 AP 32.
14
Gan Shyam Das v. Anant Kumar Sinha, AIR 1991 SC 2251.
15
Venkatah Subayya v. Veerayya, AIR 1969 AP 92.
16
Madhukar Bhaskar Sheorey v. Saral Madhukar Sheorey, AIR 1973 Bom 55.

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(¶ 16) The basic principle of restitution of conjugal rights was created so as to prevent break
up between the spouses.17 The outmoded notion which prioritizes the so called sanctity of
marriage over individual rights and freedoms, particularly those of wife, is in keeping with
Indian societal and jurisprudential tradition, which has long been loath to concede that
fundamental rights apply within the home.18 The reasonable basis for restitution of conjugal
rights is that it promotes the reconciliation between the spouses and also tries to maintain a
good matrimonial relationship between the spouses/partners. Each party to the marriage is
bound to live together in a conjugal society and entitled to a conjugal society of others. The
merit of the remedy for restitution is that it is the only positive remedy whereas the other
matrimonial remedies are of a negative character. While, divorce, nullity and judicial
separation aim at temporary or permanent dissolution of marriage, restitution aims at
reconciliation. Reconciliation and not rupture of matrimony being the object of all the
matrimonial law, the remedy for restitution apparently is commendable. “A horse can be
taken to water but cannot be made to drink it; similarly it is truer in the case of humans”. The
decree can only guide the partners to live together again in order to reconcile but can’t make
them to mend things.19 The purpose of provision lies in the good faith of mending things of
matrimonial relationships in way better manner rather than giving up and choosing the option
of separation. Hindu Spouses are not particularly known to separate due to mutual
misunderstandings.20 Hindus by training and temperament are fatalists and consider marriage
to be sacrament or sanskar, they are therefore naturally apt to accept many shortcomings in
their spouses, without breaking the nuptial tie. Therefore, restitution of conjugal rights focuses
on reconciliation of the marriage between the spouses.

[3.2]Causes no violation of the Right to Privacy, Mental &Physical Health and Dignity-

(¶ 17) As per the case of Maneka Gandhi v. Union of India,21 whether the decree on
restitution of conjugal rights would be just, fair and reasonable & it didn’t compel the

17
Samraj Nadar v. Mohinder Singh, AIR 1970 Mad 434.
18
Kanna v. Krishnaswami, AIR 1972 Mad 247.
19
Gurcharan Singh v. Smt. Waryam Kaur, AIR 1960 Punj. 422.
20
Tulsa v. Pannalal, AIR 1963 Madh. 5.
21
1978 AIR 597.

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unwilling wife to live wither husband. Then Section 9 of the Hindu Marriage Act does not
violate the right to privacy, mental and physical health and dignity of an individual. The
Constitution of India came into force that guarantees personal liberties and equality of status
and opportunity to men and women alike and further confers provisions for their protection
and safeguard.22

(¶ 18) Privacy is hampered when there is interference, but the State provides a cooling time
for making things better without mainly interfering into the matrimonial matter that protects
the privacy of both the individuals. In fact it is the discretion of the spouse whether to live
together or not in the matrimonial home, the State works according to the boundary line of
fundamental rights and doesn’t cause any violation of the right of dignity. Dignity is not at all
hampered as there is no coercive act by the state to indulge in any sexual relationship or such
that could violate the bodily integrity.23 Perhaps, the decisional autonomy is shielded and
given equal preference to both the spouse. Accordingly, the privacy, Physical and mental
health and dignity is protected while making the spouse to amend their decision regarding
living apart.

[4.]THAT AN ACT OF THE STATE CAN ENFORCE OR INDUCE BUT DOESN’T COMPEL A
WOMEN TO SURRENDER HER FUNDAMENTAL RIGHTS OF SEXUAL AND DECISIONAL

AUTONOMY WHICH IS INTRINSIC IN THE RIGHT TO PRIVACY AND PERSONAL LIBERTY

U/A 21 OF THE CONSTITUTION OF INDIA-

(¶ 18) It is humbly submitted before the Hon’ble court that the state can enforce a women but
the state doesn’t compel her to surrender her fundamental rights of sexual and decisional
autonomy that has been intrinsic in the right to privacy and personal liberty u/a 21 of the
Indian Constitution.

[4.1] Protection of fundamental rights-

(¶ 19) Privacy and personal liberty as u/a 21 of the constitution of India includes at its core the
preservation in personal intimacies, the sanctity of family life, marriage, procreation, the home
22
Shakila Banu v. Gulam Mustafa, AIR 1971 Bom 166.
23
Bai Jiva v. Narsing Lalbhai, AIR 1927 Bom 264.

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and sexual orientation. Privacy connotes a choice to be left alone. 24 Privacy safe guards
individual autonomy and recognizes the ability of the individual to control the vital aspects of
his or her life.25 The act of state in the form of conjugal rights doesn’t violate or forces an
individual herein woman to surrender the rights. Rather, the main aim of these provisions is to
protect the right of each and every individual from getting infringed. Personal choices
governing the way of life are intrinsic to privacy. 26 The aim of the restitution of conjugal
rights is only to encourage a united marriage and to prevent any violation of the fundamental
right. Justice Bobde emphasized the centrality of “choice” in associative freedoms, as was
delivered by Justice Nariman, who observed that “the privacy of choice…. Protects an
individual’s autonomy over fundamental choices”

(¶20) Compelling is way too far for a state or the provisions mentioned, even the infringement
of the fundamental rights are protected from being shattered to broken laws. State helps in
protecting one’s privacy that indirectly protects the heterogeneity and recognizes the plurality
and diversity of the Indian Culture.27 The legitimate expectation of privacy may vary from the
intimate zone to the private zone and from the private to the public arenas, 28 it is important to
underscore that privacy is not lost or surrendered by the act of state or the provision of law,
merely because the woman is in a public place. Privacy attaches to the person since it is an
essential facet of the dignity of the human being that is at any cost not destroyed by the state.

(¶ 21) The law of the state is valid with reference to encroachment on life and personal liberty
u/a 21 of the Constitution. An invasion of life and personal liberty must meet the three fold
requirement of –

(a.) Legality, that postulates the existence of law;

(b.)Need, that should be defined in terms of a legitimate state aim; and
(c.) Proportionality which ensures a rational nexus between the object and the means to
achieve them.
24
T. Sareetha v. Venkatah Subbaiah, AIR 1983 AP 356.
25
Kharak Singh v. State of UP, AIR 1963 SC 1295.
26
Ranjana Kejriwal v. Vinod Kumar Kejriwal, AIR 1997 Bom 580.
27
R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632.
28
KS Puttaswamy and Anr v. Union of India and Anr, (2017) 10 SCC 1.

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(¶ 22) In such matter, no invasion has been caused to the fundamental rights by the state in
order to surrender them. Such fundamental rights, mainly the right to privacy and personal
liberty has both positive and negative content. 29 The positive content imposes an obligation on
the state to take all the necessary measures to protect the privacy of an individual. 30

[5.] THAT A DECREE FOR RESTITUTION OF CONJUGAL RIGHTS DOESN’T FORBIDS A

PERSON TO EXERCISE HER RIGHT TO DECIDE WHETHER TO HAVE SEXUAL

INTERCOURSE WITH HIS/HER PARTNER/SPOUSE THUS DOESN’T VIOLATES HER RIGHT

TO BODILY INTEGRITY AND SPATIAL & BEHAVIORAL PRIVACY .

(¶ 23) The respondents humbly submits before the Hon’ble Supreme Court that the said
provision of the restitution of conjugal rights under the HMA, 1955 doesn’t restricts or forbids
a person from exercising the decisional autonomy regarding sexual intercourse with the
spouse.

[5.1] Focuses on Consortium-

(¶ 24) The decree of restitution of conjugal rights mainly focuses on strengthening the marital
relationship between the spouses. Emphasis is laid on consortium rather than just sexual
cohabitation.31 It has been observed that the decree of restitution of conjugal rights doesn’t
compel a person to have a sexual relationship rather the focus is laid on consortium rather than
mere sexual cohabitation. Sexual relationship or such cohabitation is not the only fundamental
area of marriage. The main aim of marriage is companionship, love, affection, comfort,
mutual understanding and sexual relationship. Sexual relationships are not the ultimate goal in
the marriage,32 and the restitution of conjugal rights aims only at enforcing the spouse or the
partners to live together in the same household and not compels them in sexual relationship.33

(¶ 25) The object of the restitution decree is to bring about consortium between the estranged
parties. According to Manu, “Let mutual fidelity continue till death. Let a man & woman be
29
Ibid 11.
30
Smt. Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4 SCC 90.
31
Navtej Singh Johar v. Union of India, (2018) 10 SCC.
32
Ibid 25.
33
Vidhya Viswanathan v. Kartik Balakrishan, (2014) 15 SCC 221.

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united by marriage, constantly beware, lest at any time disunited they violate their mutual
fidelity”. This is indeed the positive remedy that the restitution under the Hindu Marriage Act,
1955 provides.34

(¶ 26) A simple cohabitation or consortium means living together as husband and wife as was
endeavored in Evans v. Evans35, consortium consists as the husband taking care of the wife.
Sexual intercourse or such type of relationship is just an element of marriage it doesn’t define
the whole marriage.36 The decree highlights that the sexual relationship is not just the summum
bonum.37

[5.2] Restitution doesn’t contravene with the fundamental rights-

(¶ 27) Section 9 of the Hindu Marriage Act, 1955 does not contravene with the Article 14 &
21 of the Indian Constitution. 38 Such decree of restitution of conjugal rights just ensures the
return of the spouse who has repulsed from the society of the husband without any reasonable
and justified excuse. The decree established by law helps the spouse/partner to be under the
ambit of the Hindu Marriage Act & focuses that their fundamental rights are not infringed.
Such fundamental rights are the basic structure of the Indian Constitution and by any means
there should not be any grave violation.39

(¶ 28) The decree gives the spouse and the partner a chance to cool-down and maintain the
sacramental relationship rather than indulging in any violation of law. Both men & woman
have the chance & autonomy to decide whether to have the sexual relationship or not which
makes their right to privacy and personal autonomy secured u/a 21 of the Indian
Constitution.40 Law establishes autonomy for the individual even after the restitution they can
still apply for divorce.41

34
Seetha Yamma v. Venkataramma, AIR 1940 Mad 906.
35
(1948) I K.B 175 (7).
36
Dular Koer v. Dwarka Nath Misser, (1907) ILR 34 Cal 971.
37
Raman Kumar v. Smt. Baksho Thandi, AIR 2008 P H 95.
38
Ibid 31.
39
A.K Gopalan v. State of Madras, AIR 1950 SC 27.
40
Suchita Srivastava v. Chandigarh Administration, (2017) 10 SCC 800.
41
Tirath Kaur v. Kirpal Singh, PLR (1963) 65 315.

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[6.] THAT EXCEPTION 2 OF SECTION 375 OF THE IPC DOESN’T LEGALIZE MARITAL RAPE
AND NOT VIOLATES THE FUNDAMENTAL RIGHTS OF MARRIED WOMAN U/A 14, 19 & 21 OF
THE INDIAN CONSTITUTION.

(¶ 29) The council humbly contends before the Hon’ble Supreme Court that the 2 nd exception t
of Section 375 of IPC not at all forwards in legalizing the marital rape and so, there is no grief
violation of the fundamental rights of the individual.

[6.1] Spiritual Consent and Custom-

(¶ 30) Hindu marriage is a sacramental union which is followed from ages to ages. Different
places follow their own customary law and are still prevalent followed by each and every
individual.42 Former Chief Justice of India Dipak Mishra mentioned that “exception 2 of
section 375 IPC should not be made a crime in India because it will create an absolute
anarchy in families and our country is sustaining itself because of the family platform which
upholds family values.” The customary law in India prevailing from centuries is that when the
bond is tied between two individuals, there is a connection & consent between the spirits. The
Indian Law prevailing still from the 1700s, when Mathew Hale of England once quoted that
“the husband cannot be guilty of any act involving sexual intercourse/relationship by himself
upon his lawful wife, for by their mutual matrimonial consent and the contract that the wife
hath given.” This act has now become a custom and is still followed. Matrimonial life
includes sexual relationship and no one can retract from the spouse as they have the full
matrimonial consent that binds their relationship of marriage. It is no less than the implied
consent that both husband and wives take when they come into the sacramental union. 43 Such
implied consent is equal for both the spouse & causes no violation of their fundamental rights.

[6.2]Presumption of Constitutionality-

(¶ 32) Justice Bushrod Washington once mentioned that, “It is but a decent respect to
wisdom, integrity and patriotism of the legislative body, by which any law is passed, to
presume in favor of its validity, until its violation of the Constitution is proved beyond a
42
Deivanai Achi and Anr. v. R.M. AL. Ct. Dhidambaram Chettiar, AIR 1954 Mad 657.
43
Nimeshbhai Bharatbhai Desai v. State of Gujarat, 2018 SCC OnLine Guj 732.

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reasonable doubt.” The provision doesn’t legalize marital rape, as the law passed in favor of
such exception has been made with the interpretation of all the constitutional values and
legalities. The legislature here has not exceeded in its jurisdiction to frame the exception that
could violate the fundamental rights of the individual. It is the burden that establishment of the
such exception in IPC is not within the competence of the Legislation or whether it has
transgressed other Constitutional matters such as the fundamental rights, is always on the
person who thinks such exception violates the constitutionality and who challenges its vires. 44
The exception 2 is not ultra vires to the constitutionality as the sexual relationship between the
spouses is the part of their marital life and doesn’t amount to something beyond the ambit of
the legal marriage boundaries. General words may be construed, narrowly or widely, with
reference to the powers of the Legislature & their meaning applied to those matters in respect
of which the Legislative competent exists.45

PRAYER FOR RELIEF

In the light of the Issues raised, Arguments Advanced, Cases and Authorities cited above, The
Respondents humbly request the Hon’ble Supreme Court of India, to adjudge and declare that:

1. Section 9 and 13 (I-A) (ii) of the Hindu Marriage Act, 1955 is constitutional;
2. Order XXI Rule 32 & 33 of the Code of Civil Procedure, 1908 is to the decree of
restitution of conjugal rights is justified and constitutional; and
3. Explanation 2 of Section 375 of Indian Penal Code, 1860 is constitutional and not at all
violative of fundamental rights u/a 14, 19 and 21 of the Indian Constitution.

AND/OR

Pass any other order, direction or relief that it may deem fit in the best interests of Justice,
Fairness, Equity and Good Conscience.

44
Chiranjitlal Chowdhary v. Union of India, AIR 1951 SC 41.
45
New Delhi Municipal Committee v. State of Punjab, AIR 1997 SC 2847.

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For this act of Kindness, The petitioner shall duty bound forever pray.

_______S/D_____
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