TEAM CODE: 02

MAHARAJA AGRASEN UNIVERSITY, H.P. INDIA

SCHOOL OF LAW

MOOT COURT

SESSION 2018-2023

BEFORE THE HON’BLE SUPREME COURT OF INDIA

SOCIETY FOR WOMENS RIGHT (PETITIONER)

V.

UNION OF INDYA (RESPONDENT)

ON SUBMISSION TO THE REGISTRY OF THE COURT

OF THE HON’BLE SUPREME COURT OF INDIA

MEMORIAL FOR THE RESPONDENT

PREPARED AND SUBMITTED BY SHIWANI YADAV (MAU18UBL009)

SUBMITTED TO: - Dr. RAJESH KUMAR

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 SUPREME COURT OF INDIA, NEW DELHI

Case No.-

SOCIETY FOR WOMEND RIGHTS………………………………..(PETITIONER)

V.

UNION OF INDYA………………………………………………..(RESPONDENT)

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 TABLE OF CONTENTS

LIST OF ABBREVIATIONS………………………………………………………….. 05

INDEX OF AUTHORITIES…………………………………………………………… 07

Lexicons…………………………………………………………………………………. 07

Books……………………………………………………………………………………. 07

Case Laws………………………………………………………………………………. 08

Websites………………………………………………………………………………… 09

STATEMENT OF JURISDICTION …………………………………………………. 10

STATEMENT OF FACTS…………………………………………………………….. 11

ISSUES RAISED………………………………………………………………………. 12

SUMMARY OF ARGUMENTS …………………………………………………….. 13

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ARGUMENTS ADVANCED …………………………………………………………. 14

PRAYER………………………………………………………………………………… 18

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 LIST OF ABBREVIATIONS

AIR All India Reporter

All Allahabad High Court

Cal Calcutta High Court

Cri LJ / Cr LJ Criminal Law Journal

CrPC. Code of Criminal Procedure

Del Delhi High Court

DVA/ DV Act Domestic Violence Act, 2005

DW Defence Witness

Ed. Edition

Guj Gujarat High Court

IPC Indian Penal Code

IC Indian Cases

Mad Madras High Court

n. Foot Note no.

Ori Orissa High Court

p. Page No.

P&H Punjab and Haryana High Court

Pat Patna High Court

PW Prosecution Witness

Raj Rajasthan High Court

SC Supreme Court

SCC Supreme Court Cases

SCJ Supreme Court Journal

SCR Supreme Court Reporter

Sec. Section

v. Versus

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 CJM Chief Judicial Magistrate

Ors. Others

Anr. Another

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 INDEX OF AUTHORITIES

LEXICONS

Wharton’s, Wharton’s Law Lexicon, (17th Ed. 2017)

BOOKS

NAME

BLACK’S LAW DICTIONARY Ninth edition by Garner

CONSTITUIONAL LAW OF INDIA Fifty first edition 2014 by Dr. J.N.

Pandey

CONSTITUTION OF INDIA Twelfth edition 2013 by V.N. Sukla’s,

Mehendra Pal Singh

CONSTITUTIONAL LAW OF INDIA Thirteenth edition 2018 by Prof. G.S.

Pande

FAMILY LAW Fourth edition 2015 by Prof. Kusum

HINDU LAW AND USAGE Sixteenth edition 2008 by Mayne’s

HINDU LAW First edition 2009 by Dr. S.R. Myneni

HINDU LAW First edition 2015 by Dr. Samiya Tabasum

HINDU LAW Fourth edition 2014 by Dr. Basant K. Sharma

HINDU LAW Ninth edition 2013 by U.P.D. Kesari

INDIAN CONSTITUTIONAL LAW Seventh edition 2014 by M.P. Jain

LAW OF MARRIAGE AND DIVORCE Sixth edition 2011 by Paras Diwan

MODERAN HINDU LAW Twenty second edition 2013 by Dr. Paras Diwan

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 MULLA HINDU LAW 21st Edition Reprint 2012 by Satyajeet A Desai

THE CONSTITUTION LAW OF INDIA First edition 2009 by Narender

Kumar

THE CONSTITUTION OF INDIA Ninth Edition Reprint 2016 by Narender

Kumar

CASE LAWS

1. CASES
1.1 Independent Thought vs Union of India and Anr (2017)
1.2 Nimeshbhai Bharatbhai Desai vs State Of Gujarat on 2 April, 2018
1.3 The Chairman, Railway Board & Ors vs Mrs. Chandrima Das & Ors on
28 January, 2000.

2. STATUTES
2.1 Indian Constitution ( Art.14,21,19(a),15,32,226)

2.2 .Vishakha Guidelines.

2.3 National Commission for Women Act, 1990.
2.4 The Prohibition of Child Marriage Act, 2006.
2.5 Special Marriage Act, 1954.
2.6 Dowry Prohibition Act, 1961
2.7 Indian Divorce Act, 1969.
2.8 Sec 354,375,304B,497,498B I.P.C

2.9 Sexual Harassment of Women at Workplace (Prevention,

Prohibition and Redressal) Act, 2013.

2.10 Indecent Representation of Women (Prevention) Act,1986

2.11 Protection of Women from Domestic Violence Act, 2005

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 WEBSITES

http://www.findlaw.com

http://www.judis.nic.in

http://www.scconline.com
http://www.manupatra.co.in/AdvancedLegalSearch.aspx
www.thelawdictionary.org

www.casemine.com
www.indiankanoon.com

www.lawoctopus.com

http://www.millenniumpost.in/

https://www.lawnotes.in/

https://www.academia.edu/

http://www.the-laws.com/Encyclopedia/Browse/

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 STATEMENT OF JURISDICTION

1. Union of Indya and Subodh, hereby submit to the jurisdiction of Hon’ble Supreme
Court of India Under Article 39A of the Constitution of India. The Hon’ble Supreme
Court has the jurisdiction to adjudicate the present case.

2. Union of Indya and Subodh hereby submit to the jurisdiction of Hon’ble

Supreme Court of India Under Article 132 of the Constitution of India.
The Hon’ble Supreme Court has the jurisdiction to adjudicate the present case.
Article 132 in The Constitution of India 1949
132. Appellate jurisdiction of Supreme Court in appeals from High Courts incertain
cases

1. An appeal shall lie to the Supreme Court from any judgment, decree or finalorder
of a High Court in the territory of India, whether in a civil, criminal or other
proceeding, if the High Court certifies under Article 134A that the case involves a
substantial question of law as t the interpretation of this Constitution.

2. Omitted.

3. Where such a certificate is given, any party in the case may appeal to the Supreme
Court on the ground that any such question as aforesaid has been wrongly decided
Explanation For the purposes of this article, the expression final order includes an order
declaring an issue which, if decided in favour of the appellant, would be sufficient for
the final disposal of the case.

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 STATEMENT OF FACTS

1. Nidhi and Subodh, aged 22 and 24 respectively, are two working professionals in the city of
Chandigarh. They have been live-in partners since 2019 and love each other. Their parents were
against them marrying each other. However, both of them managed to convince their parents
that this was the perfect match for them. In December 2020, Nidhi and Subodh tied the knot as
per the Hindu rituals and customs. After their marriage, the relationship took a toll and it wasn’t
the same as it had been prior to the marriage.
2. The primary reason according to Nidhi was that Subodh had begun to be a more dominating
figure. He would now demand intercourse as if it were a matter of right rather than it being an act
of two consenting adults. He would never pay heed to the feelings of Nidhi and this was
something that hurt her. When Nidhi tried to talk about this to her mother and mother-in-law,
both of them had the same view that it is the duty of an Indian wife to ful-fill the wishes of her
husband and be a constant companion to him at any cost.
3. One day, Nidhi was watching a debate show on television on the topic of marital rape. A few
of the pane-lists strongly condemned Exception II to Section 375 of the Indian Penal Code, 1860.
They argued that it was based on the archaic concepts where the wife was considered as
possession and property of the husband. It was further argued that marital rape also violated
human rights and various rights of women under Article 21 of the constitution.
4. They also demanded that there should not be any distinction between rape within and outside
the marriage. On the other hand, the other pane-lists argued that Exception II to Section 375 had
been inserted to preserve the institution of marriage and criminalization of sexual intercourse
between spouses had potential to wreak havoc on the society.
5. Further, they argued that the Indian law delivers proper protection to women rights and the
Legislature is well aware of the situation and demands of the Indian society. Society for
Women’s Rights is an NGO that works for the development and welfare of women. It is an
organization that has previously helped to bring in women-centric laws by rallying for
classification and enactment of women rights via legislations and judicial intervention.
6. Deeply moved by the debate, Nidhi finally decided to fight for her rights and what she thought
was a blatant injustice against her persona. She approached Society for Women’s Rights and
narrated her grief to their activists. The members of the NGO decided to approach the court for
seeking to eradicate the social plague of marital rape.
7. A Public Interest Litigation was filed by the 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. The PIL also challenges the constitutional validity of Exception II to Section 375
of the Indian Penal Code.

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 STATEMENT OF ISSUES

ISSUE 1: Whether the PIL is maintainable or not?

ISSUE 2: Whether marital rape should be criminalized?

ISSUE 3: Whether marital rape is a violation of Article 21?

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 SUMMARY OF ARGUMENTS

ISSUE 1: Whether the PIL is maintainable or not?

1. The petitioner Society for Women’s Rights don’t have locus standi to file the
petition as Subodh, followed all the norms of Hindu marriage act 1955

2. There is exception 2 to section 375 of India penal code 1986. (Exception)

—Sexual intercourse by a man with his own wife, the wife not being underfifteen
years of age, is not rape.]

ISSUE 2: Whether marital rape should be criminalized?

1. The concept of marital rape, as understood internationally, cannot be

suitably applied in the Indian context due to various factors like level of
education/illiteracy, poverty, myriad social customs and values, religiousbeliefs,
mindset of the society to treat the marriage as a sacrament, etc.
2. If marital rape was made a crime, the entire family system indya wouldcome
under great stress.

ISSUE 3: Whether marital rape is a violation of Article 21?

The exception 2 of section 375 of Indian Penal Code states that non- consensual sexual
intercourse by a man with his own wife, if she is over 15 years does not amount to
rape. It, thus keeps outside the ambit of ‘ rape’ a coercive and non-consensual sexual
by a ‘’husband’ with his ‘wife’ (above 15 years of age)and thereby allows a ‘husband’
to exercise, with impunity, his marital right of (non –consensual or undesired)
intercourse with his ‘wife’. Itis believed that the husband’s immunity for marital rape
is premised on the assumption that a woman, on marriage, gives forever her consent to
the husband for sexual intercourse. The husband has the right to have sexual
intercourse with his wife, whether she is willing or not.
Since there is no rape happened so no question of violation of article 21 come in
question.

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 ADVANCED ARGUMENTS

ISSUE 1: Whether the PIL is maintainable or not?

1. The petitioner Society for Women’s Rights don’t have locus standi to filethe
petition as Subodh, followed all the norms of Hindu marriage act 1955

2. There is exception 2 to section 375 of India penal code 1986. (Exception)

—Sexual intercourse by a man with his own wife, the wife not being underfifteen
years of age, is not rape.

3.There is already exist special provision for women protection under:-

3.1 National Commission for Women Act, 1990.
3.2 The Prohibition of Child Marriage Act, 2006
3.3 Special Marriage Act, 1954
3.4 Dowry Prohibition Act, 1961
3.5 Indian Divorce Act, 1969
3.6 Sec 354,375,304B,497,498B I.P.C
3.7 Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,
2013
3.8 Indecent Representation of Women (Prevention) Act,1986
3.9 Protection of Women from Domestic Violence Act, 2005

Since there are already law exist for the protection of women even maritalrape for
child girl.
Case law:-
The judgment of Nimeshbhai Bharatbhai Desai v. State of Gujarat focused upon
the phenomenon of marital rape. A suit was filed by a wife against her husband
claiming that he forced her to have non-consensual sex with him on several
occasions. These acts mentally devastated her. He even used to torture her by
indulging into carnal and oral intercourse. The applicant’s side argued that the
only defense which can be made available is Section 498-A of IPC as marital rape
does not constitute an offence in India. On the other side, it was argued that wife
was continuously mentally and physically tortured by her husband irrespective of
her consent. It violated her dignity and bodily integrity by virtue of Article 21, 14
and 19. Marriage cannot validate forced sexual intercourse with any female as
she has her own individuality and conscious.
The dilemma which arose in front of Court was whether Husband can be
prosecuted under section 376 (rape) and 377 (unnatural sex) of IPC, 1860. The
issue revolved around the right of a wife to initiate proceedings for marital rape
against her spouse. The Court considered the situation as unfavorable in matters
of married women. According to the current legal scenario of Country, a wife
gives implied consent to Husband to have sexual intercourse with her by virtue of
being in bond of marriage. He cannot be prosecuted under Section 376 and 377
as sexual acts with wife after marriage is considered as his right. It automatically
asserts that a wife has no say in matters of intimacy and her position is inferior to
that of her partner. Any marital relation cannot provide unbridled powers to the

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 husband to destroy peace of a woman.
This notion of marital rape has been normalized and converted into automatic
consent. The law is such that it itself positions status of a woman as a chattel. No
one should be given any right to violate another person’s autonomy, mental and
bodily dignity. It is a matter of urgency and legislature should delve deep into the
issue of marital rape which is not ‘normal’ scenario but a gross violation of
fundamental right. Government should pay adequate attention to this problem
and fill the gap of inequality between genders.

ISSUE 2: Whether marital rape should be criminalized?

1.The concept of marital rape, as understood internationally, cannot be suitably

applied in the Indian context due to various factors like level of education/illiteracy,
poverty, myriad social customs and values, religiousbeliefs, mindset of the society to
treat the marriage as a sacrament, etc,”

1. if marital rape was made a crime, the entire indyan family system wouldcome
under great stress.
2. If marital rape criminalized than Approx all the married men of countrywill be
under behind the bar.
3. Proving the rape by husband is nearly impossible.
4. Implementation this to certain religion will create the havoc , chaos in the
society .
5. the apex court in Independent Thought vs Union of India and Anr (2017) has criminalised
sexual intercourse with a minor wife aged between 15 and 18 years, but has refrained
from making any observation regarding the marital rape of a woman who is above 18years
of age.
Case Law:-
Chairman Railway Board v Chandrima Das Case deals with a situation in which
the scope of giving compensation is broadened in the cases of public wrong.
Facts of Chairman Railway Board v Chandrima Das Case:
Mrs. Chandrima Das(respondent herein), a practicing advocate of the Calcutta
High Court, filed a petition under Article 226 of Constitution against the
Chairman of Railway Board(appellant herein), claiming compensation for the
victim (Smt. Hanuffa Khatoon), a Bangladeshi National who was gang-raped by
many including employees of the Railways in a room at Yatri Niwas at Howrah
Station.
The HC awarded a sum of Rs. 10 lakhs as compensation for Smt. Khatoon. The
HC was of the opinion that the rape was committed at the building belonging to the
Railways and was perpetrated by the railway employees and thus the Railway
board is vicariously liable.
This appeal is against the HC judgement in favor of Chandrima Das.
Contentions & Issues:
Is it right to contend that for claiming damages for the offence perpetrated on Smt.
Khatoon, the remedy lay in the domain of private law and not under public law

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and, therefore, no compensation could have been legally awarded under Article
226?
Is it correct to say that Advocate Chandrima Das could not have legally instituted
these proceedings as she had no locus standi and was, in no way, connected to the
victim?
Is it correct to say that since Smt. Khatoon was a Bangladeshi national and she
can’t complain of the violation of Fundamental Rights as FRs are available only to
citizens?
Is it right to contend that the Central Government can’t be held vicariously liable
for the offence of rape committed by the employees of the Railways?
Ratio & Decision:
The HC has jurisdiction not only to grant relief for the enforcement of
fundamental rights but also for ‘any purpose’ which would include the
enforcement of public duties by public bodies. This is done to prevent the State or
the public bodies from acting in an arbitrary manner. SC, in a number of cases,
has awarded compensation for the personal injuries caused by the officers of the
government, like in Rudal Shah vs State of Bihar. Therefore, compensation can be
legally awarded in this case under public law, i.e. Article 226.

The reliefs in the petition also contained to eradicate anti-social and criminal
activities at Howrah Railway Station and since the nature of petition is in public
interest, therefore, there is a locus standi to Mrs. Chandrima Das.
Fundamental Rights such as Article 14 and 21 are available to ‘persons’ and
‘Rape amounts to the violation of FR guaranteed to a woman under Article 21’,
therefore, she can complain of a violation of FR even being a Bangladeshi
national.
The Court said that the theory of absolute sovereign immunity is no longer in any
welfare State. The Railways are a commercial body of Union of India which is not
merely sovereign body and can be held vicariously liable for the damage caused by
the employees otherwise there will be responsibility for the government bodies and
will behave in arbitrarily.

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 ISSUE 3: Whether marital rape is a violation of Article 21?

Case : Independent Thought vs Union of India and Anr (2017)

1.The exception 2 of section 375 of Indian Penal Code states that non-
consensual sexual intercourse by a man with his own wife, if she is over 15
years does not amount to rape.

2 It, thus keeps outside the ambit of ‘ rape’ a coercive and non-consensual
sexual by a ‘’husband’ with his ‘wife’ (above 15 years of age)and thereby
allows a ‘husband’ to exercise, with impunity, his marital right of (non –
consensual or undesired) intercourse with his ‘wife’. It is believed that the
husband’s immunity for marital rape is premised on the assumption that a
woman, on marriage, gives forever her consent to the husband for sexual
intercourse.
3. The husband has the right to have sexual intercourse with his
wife,whether she is willing or not.
Here husband is just exercising his right which he acquired after marriage
Article 21 comes in question when there is danger to life, dignity, privacy.
Sex after marriage is cannot be put in the category of rape .

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 PRAYER

In light of the issues raised, arguments advanced and authorities cited, the
counsel for Petitioner humbly prays that the Hon’ble Court be pleased to adjudge, hold
and declare:

1. Declare that PIL is not maintainable as there is already law exist

forwomen protection.
2. Marital rape should not be criminalized as it will entire indyan
familysystem would come under great stress.
3. Declare that there is no violation of the fundamental right of
article21 of C.O.I
All of which is most humbly and respectfully submitted.

Sd/- (Counsel for Respondent)

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 AFFIDAVIT

1. Shiwani Yadav D/o Mr. Badrinath yadav, aged 22 years , do hereby

solemnly affirmed state as follow:

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 POWER OF ATTORNEY

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