TEAM CODE - 28R

TEAM CODE - 28

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NOVICE MOOT COURT 2023

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TABLE OF CONTENT

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LIST OF ABBREVIATIONS
INDEXBEFORE THE HON’BLE SUPREME COURT OF SINDHU DESH
OF AUTHORITIES
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STATEMENT OF JURISDICTION
STATEMENT OF FACTS
IN THE MATTER OF
STATEMENT OF ISSUES
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SUMMARY OF ARGUMENTS
ARGUMENTS ADVANCED
REPUBLIC OF SINDHU DESH & KHHA……………………..PETITIONER
PRAYER

V.

PEHEL…………………………………………………………RESPONDENT

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ON SUBMISSION TO THE HON’BLE SUPREME COURT OF SINDHU DESH

UNDER ART. 136 OF THE CONSTITUTION OF SINDHU DESH

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MEMORANDUN ON BEHALF OF THE RESPONDENT

DRAWN AND FILED BY THE COUNSELS FOR THE RESPONDENT

MEMORIAL ON BEHALF OF RESPONDENT 1

 TABLE OF CONTENTS

TABLE OF CONTENTS …………………………………………………….2

LIST OF ABBREVIATIONS ………………………………………………..3
INDEX OF AUTHORITIES ………………………………………………...4
TABLE OF CASES …………………………………………..………………4
STATEMENT OF JURISDICTION ……………………………….……….5
SUMMARY OF FACTS ……………………………………………………..6
ISSUES RAISED …………………………………………………………..…7
SUMMARY OF ARGUMENTS ………………………………….…………8
ARGUMENTS ADVANCED ……………………………………………….10

CONTENTION A: WHETHER THE SPECIAL LEAVE PETITION FILED UNDER ARTICLE 136
OF THE CONSTITUTION OF SINDHU DESH IS PROPER AND/OR VALID SINCE THE STATE IS

UNDER AN OBLIGATION TO TREAT MAN AND WOMEN EQUALLY?

CONTENTION B (1): WHETHER EXCEPTION 2 OF ART. 375 OF SINDHU DESH PENAL CODE IS
VIOLATIVE OF ARTICLES 14, 19 AND 21 OF THE CONSTITUTION?

CONTENTION B(2): WHETHER FORCEFUL INTERCOURSE BY A MAN WITH HIS WIFE AGAINST
HER WILL AND/OR WITHOUT HER CONSENT CAN BE CRIMINALIZED AS CONSTITUTING RAPE

UNDER PROVISION OF SECTION 375 OF PENAL CODE?

CONTENTION C: WHETHER THE OFFENCE OF RAPE UNDER SECTION 375 OF THE SINDHU
DESH PENAL CODE IS REQUIRED TO BE MADE GENDER NEUTRAL?

PRAYER FOR RELIEF …………………………………………………….……19

MEMORIAL ON BEHALF OF RESPONDENT 2

 LIST OF ABBREVIATIONS

Abbreviations Full Forms

& And

AIR All India Reporter

ART./ ARTS. Article/Articles

AC Appeal cases

CL Clauses

HON’BLE Honorable

HR Human right

HC High Court

MANU Manupatra

NO. Number

ORS. Others

PRIN Principles

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Report

SEC Section

SPL Special Leave Petition

KHHA The Karunadu Harassed Husband

Association

MEMORIAL ON BEHALF OF RESPONDENT 3

 INDEX OF AUTHORITY

1. CRIMES AND CRIMINAL PROCEDURE OF 2011, 18 U.S.C. SECTION 2241-2248

2. CRIMINAL JUSTICE AND PUBLIC ORDER ACT, 1994 SECTION 142
3. PROTECTION OF CHILDREN FROM SEXUAL OFFENCES (POSCO) ACT, 2012
4. THE SINDHU DESH PENAL CODE, 1860
5. THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

TABLE OF CASES

INDEPENDENT THOUGHT V. UNION OF INDIA

SOCIAL ACTION FOR MANAV ADHIKAR V. UNION OF INDIA

NARESH KUMAR V. UNION OF INDIA

STATE OF UTTAR PRADESH V. RAM GOPAL SHUKLA

DHARAM DUTT V. UNION OF INDIA

STATE OF ANDHRA PRADESH V. MC DOWELL

STATE OF KARNATAKA V. KRISHNAPPA

C.E.S.C. LTD. V. SUBHASH CHANDRA

STATE OF MAHARASHTRA V. MADHKAR NARAYAN

SREE KUMAR V. PEARLY KARUN

SARETHA V. T. VENKATA SUBBAIH

NIMESH BHAI BHARAT BHAI DESAI V. STATE OF GUJARAT

DWARKA PRASAD LAXMI NARAIN V. STATE OF UP

ARUNAPARMOD SHAH V. UNION OF INDIA

NALSA V. UNION OF INDIA

MEMORIAL ON BEHALF OF RESPONDENT 4

 STATEMENT OF JURISDICTION

THE HON’BLE SUPREME COURT OF SINDHU DESH HAS THE

JURISDICTION IN THIS MATTER UNDER ART 136 OF THE CONSTITUTION
OF SINDHU DESH AS FOLLOWS:

136. SPECIAL LEAVE TO APPEAL BY THE SUPREME COURT –

1. Notwithstanding anything in this chapter, the Supreme Court may, in its

discretion, grant special leave to appeal from any judgment, decree, sentence
or order in any cause or matter passed or made by any court or tribunal in the
territory of Sindhu Desh.

2. Nothing in clause 1 shall apply to any judgment, determination, sentence or

order passed or made by any court or tribunal constituted by or under any law
relating to the armed forces.

THE SUPREME COURT HAS A JURISDICTION TO ENTERTAIN AND

HEAR APPEALS BY GRANTING SPECIAL LEAVE AGAINST ANY KIND
OF JUDGEMENT OR ORDER MADE BY ANY COURT OR TRIBUNAL IN
ANY PROCEEDINGS AND THE EXERCISE OF THE POWER IS LEFT
ENTIRELY TO THE DISCRETION OF THE SUPREME COURT.

MEMORIAL ON BEHALF OF RESPONDENT 5

 STATEMENT OF FACTS

The Parties
Sam and Sara are a couple living in Karunadu State and both recently get married.
Karunadu Harassed Husbands Association (“KHHA”) represents men and provides
legal assistance to men in false criminal cases. PEHEL is a Non-Governmental
Organization that works for urban women who are facing any sort of abuse.

The Issue
The marriage between Sam and Sara was yet to be consummated. After getting
themselves intoxicated due to misunderstanding, Sara files a complaint against Sam
for alleged sexual assault. The high court of karunadu finds exception 2 of section 375
of sindhu desh penal code arbitrary and violative of principles of equality as exception
states that a sexual act by a husband with his own wife where wife is not under fifteen
years of age, are not considered as a rape. The judgment receives mixed reactions
from different groups.

The Conflict
The Hon’ble High Court held that Exception 2 to section 375 of the Sindhu Desh
Penal Code is ultra-vires. The Constitution of Sindhu Desh and directed the Republic
of Sindhu Desh to amend the law relating to ‘Rape’ by making it gender-neutral in
light of section 377. Subsequently, the KHHA filed several representations to the
government against the High Court order of criminalizing Exception 2 and PEHEL
were against making section 375 gender-neutral. Thereafter, the Republic of Sindhu
Desh filed a Special Leave Petition before the Supreme Court of Sindhu Desh against
the judgment of the High Court of Karunadu.

MEMORIAL ON BEHALF OF RESPONDENT 6

 STATEMENTS OF ISSUES

ISSUE A:
WHETHER THE SPECIAL LEAVE PETITION FILED UNDER ARTICLE
136 OF THE CONSTITUTION OF SINDHU DESH IS PROPER AND/OR
MAINTAINABLE SINCE THE STATE IS UNDER AN OBLIGATION TO TREAT
MEN AND WOMEN EQUALLY?

ISSUE B (I):
WHETHER EXPLANATION 2 OF SECTION 375 OF THE SINDHU DESH
PENAL CODE IS VIOLATIVE OF ARTICLE 14, 19 AND 21 OF THE
CONSTITUTION?

ISSUE B (II):
WHETHER FORCEFUL INTERCOURSE BY A MAN WITH HIS WIFE
AGAINST HER WILL AND/OR WITHOUT HER CONSENT CAN BE
CRIMINALIZED AS CONSTITUTING ‘RAPE’ UNDER
PROVISIONS OF SECTION 375 OF THE PENAL CODE?

ISSUE C:
WHETHER THE OFFENCE OF RAPE UNDER SECTION 375 OF THE SINDHU
DESH PENAL CODE IS REQUIRED TO BE MADE GENDER-NEUTRAL?

MEMORIAL ON BEHALF OF RESPONDENT 7

 SUMMARY OF ARGUMENTS

ISSUE A:
WHETHER THE SPECIAL LEAVE PETITION FILED UNDER
ARTICLE 136 OF THE CONSTITUTION OF SINDHU DESH IS PROPER
AND/OR MAINTAINABLE SINCE THE STATE IS UNDER AN
OBLIGATION TO TREAT MEN AND WOMEN EQUALLY?
The arguments against the SLP's maintainability would likely center around the
absence of a constitutional obligation for gender equality, the lack of international
commitments, legislative intent, and the absence of concrete evidence of
discrimination. These arguments would collectively aim to demonstrate that the SLP
is not proper and should not be maintained based on the claimed lack of obligation to
treat men and women equally.

ISSUE B (I):
EXCEPTION 2 OF SECTION 375 OF THE SINDHU DESH PENAL CODE IS
VIOLATIVE OF ARTICLES 14, 19 AND 21 OF THE CONSTITUTION.
The challenge against Exception 2 of Section 375 appears to be based on the
contention that it creates discriminatory classifications, infringes on personal
freedoms, and violates the right to life and personal liberty. These arguments would
be presented to persuade the courts that Exception 2 is unconstitutional and should be
struck down or amended to align with the principles of equality, freedom, and
personal dignity enshrined in the Constitution of Sindhu Desh.

ISSUEB (II):
FORCEFUL INTERCOURSE BY A MAN WITH HIS WIFE AGAINST HER
WILL AND/OR HER CONSENT CAN BE CRIMINALISED AS
CONSTITUTING RAPE UNDER PROVISION OF SECTION 375 OF PENAL
CODE.
The argument supports the expansion of Section 375 to include forceful intercourse
by a husband against his wife's will and/or consent as a form of rape. This expansion
is justified on the grounds of individual autonomy, gender equality, prevention of
sexual violence, alignment with international norms, and legal clarity.

MEMORIAL ON BEHALF OF RESPONDENT 8

ISSUE C:
WHETHER THE OFFENCE OF RAPE UNDER SECTION 375 OF THE
SINDHU DESH PENAL CODE IS NOT REQUIRED TO BE MADE GENDER -
NEUTRAL?
The argument supports maintaining the current gender-specific definition of rape
under Section 375 of the Sindhu Desh Penal Code. It emphasizes the need to protect
vulnerable groups, address gender-based violence, ensure legal clarity, uphold the
importance of consent, and maintain a comprehensive legal framework that
adequately addresses sexual offenses involving diverse genders.

MEMORIAL ON BEHALF OF RESPONDENT 9

 ARGUMENT ADDVANCED

CONTENTION 1

WHETHER THE SPECIAL LEAVE PETITION FILED UNDER

ARTICLE 136 OF THE CONSTITUTION OF SINDHU DESH IS PROPER
AND/OR MAINTAINABLE SINCE THE STATE IS UNDER AN
OBLIGATION TO TREAT MEN AND WOMEN EQUALLY?

1. All the petitioner does not possess the requisite locus standi.
It is humbly submitted before the honorable SC that the SLP against the judgment of
honorable HC is not maintainable as Special Leave cannot be granted when
substantial justice has been done and no exceptional or special circumstance exist for
case to be maintainable. Also in the present case, no substantial question of law is
involved and interference is based on pure question of fact which is entitled to be
dismissed.
A. No exceptional and special circumstances exist and substantial justice has
been done in the present case.
The counsels, on behalf of the respondent, contends that the appellant must show that
exceptional and special circumstances exist and that if there is no interference,
substantial and grave injustice will result and the case has features of sufficient
gravity to warrant review of the decision appealed against on merits. Only then the
court would exercise it's over riding powers Art. 136. Special leave will not be
granted when there is no failure of justice or when substantial justice is done though
the decision suffer from some legal error.
the Republic of Sindhu Desh bases of its argument on the intention to protect the
Institution of marriage for the larger stability of the society, but a glaring fallacy in
this approach would be that the harms caused to women because of failure and
criminalizing marital rapes will far out way the harms apparently caused to society
because of a broken marriage.
Moreover, with the state creating laws criminalizing cruelty and with the PWDVA,
20051 it is implicit that the state has understood that the protection of the Institution of

1
The protection of women from domestic violence act, 2005

MEMORIAL ON BEHALF OF RESPONDENT 10

marriage cannot an overarching goal. Further, such an approach only reinforces the
public and private dichotomy and thus, should be avoided. The aforementioned
arguments have attempted to establish that there is no basis for treating married and
unmarried women differently with respect to rape. The requirements for article 14 2 as
laid down in present low require not just a Nexus between the purpose to be achieved
and the law, but also that the law is not arbitrary.
In the case of the Independent thought v. UOI3, Honorable Court partly struck down a
part of the exception clause in 375 of IPC .Under the protection of children from
sexual offences act 2012, it is illegal to have sexual intercourse with a child under the
age of 18. However, exception close allows for this in the event a girl is married and
is between the ages of 15 to 18. This clearly creates and unreasonable differentiation
the indivisible section of minor girls below the age of 18.
The court, in the aforementioned case, noted that this differential treatment on the
basis of marriage was wholly unconstitutional. This was because marriage did not
served as reasonable classification. Although the court was keen on noting that the
judgment was not for adult marital rape, it is encouraging that the code has recognized
that women right cannot be subsumed on the basis of marriage.
Furthermore, expounding on the afore mentioned argument it can be established that
their exist no pre opposition of content to sexual activities in a marriage. Moreover, to
not criminalize marital rape simply to protect the Institution of marriage when there is
a constitutional right at stake and when other forms of violence have been
criminalized would be arbitrary. Thus, this fails the test of article 14 and the exception
clause is hence unconstitutional.
Moreover, by bringing to light the equality among both the husband and wife the
argument that marriage in tales consent of the wife to sexual intercourse is not
negative. The problem with debate surrounding consent to sexual activity in a
marriage is that it is often viewed into clearly demarcated categories. First, that
marriage is irrevocably linked to sexual relationship. The second is that married does
not indicate any engagement in excel relationship. Legally, the assertion that marriage
is completely disassociated from sexual relationship cannot hold much weight which
is only evidenced by how so many of the claims of divorce rest all sexual
relationships.

2
Indian const, art.14
3
Independent thought v. union of India, AIR 2017 SC 4904

MEMORIAL ON BEHALF OF RESPONDENT 11

However, marriage cannot pre suppose consent to every sexual activity. Even if it is
visualized that sexual relationships are a term in the contract of marriage, consent to
sexual intercourse at all points in the marriage cannot hold competent in view of
general rules to contract law. A contract which is ambiguous, contrary to public
policy and is uncertain is not a valid contract. By this logic, in a contract of marriage
wherein women consent to sexual intercourse at all points of time without
consideration to her body requirement will not hold against the test of contract.
B. No substantial question of law is involved in the present case and
interference is based in pure question of fact which entitled to be
dismissed.
The counsel, on behalf of the respondent, humbly summits that the concept of
marriage in the law has evolved significantly over the past few decade. At present,
specific laws for various religion govern the domain of marriage or if the parties to
the marriage so choose, a religion neutral law will be applicable4. This condition of
laws for marriage has changed the dynamics of the spousal relationship. At the very
outset, the archaic understanding of the role of women in a marriage was to view
women as property belonging to the husband. If not property, it was to view the
woman as not equal to the husband, keeping in mind greater roles. However, with the
codification, there is no difference in the status of either husband or wife in the
marriage.
Moreover, in codified legislation such as Hindu, Christian, Parsi, Special Marriage
Act, there is no difference mentioned in the laws regarding the status of the wife and
the husband. It is not possible to infer that woman is the property of their husband, in
light of clear Constitutional rights, mandating equality between the sexes. Even when
parties marry under Islamic personal law, both religious scholars as well as case laws
precedents affirm that the status of husband and wife under Islamic law is equal,
dispelling the notion of women being property.
An argument of inequality of women before men in marriage will never satisfy the
requirements of art.14 in view of extensive case law and constitutional jurisprudence
in favor of the equality between the genders, with the SC now moving beyond the
binary of man and woman to recognize the third gender as well. By bringing to light
the equality among both the husband and wife, the counsels, on the behalf of

4
The hindu marriage act, 1955

MEMORIAL ON BEHALF OF RESPONDENT 12

respondent, also negate the argument that marriage entails consent of the wife to
sexual intercourse.

2. Striking down exception 2 of section 375 will amount to judicial

legislation.
The hon'ble SC in social action for Manav Dhikar v. Union of India5 held that it is not
the duty of the courts to issue directions in policy matters. It is for the legislature and
the executive to decide on matters of public policy. The courts neither create offences
nor do they introduce or legislate punishment.
Moreover, the legislature has brought recent amendments to the rape laws. the court
would be creating and legislating a new offence by striking down exception 2 , which
is out of its preview and is the primary task in the hands of the legislature. The court
should not entertain a question of legislative importance because it would lead to
infringement of doctrine of separation of powers and consequently, will be
inconsistent with the principle of constitutional democracy.
Hereby, it is humbly submitted before the hon'ble court that the special leave petition
filed under article 136 of the constitution of sindhu desh is not valid.

CONTENTION 2 (A)

Whether Exception 2 of Section 375 Sindhu Desh Penal Code violates

constitutional rights.

The respondent humbly submits before the Hon’ble Court that exception 2 of section
375 of the Sindhu Desh Penal Code is violative of articles 14, 19, and 21 of the
Constitution.
1. Exception 2 of section 375 of the Sindhu Desh Penal Code is violative of Article
14
Exception 2 of Section 375 of the Sindhu Desh Penal Code has been a subject of
controversy and debate, particularly in relation to Article 14 of the Indian Constitution,
which guarantees the right to equality before the law. Exception 2 essentially states
that sexual intercourse by a man with his own wife, who is not under 18 years of age,

5
Manav dhikar v. union of india

MEMORIAL ON BEHALF OF RESPONDENT 13

is not considered rape, even if it is against her will. This means that, under this
provision, non-consensual sexual intercourse within a marital relationship is not
considered a criminal offense if the wife is above 18 years of age.
1A. Exception 2 of section 375 creates an unreasonable classification
The argument that Exception 2 of Section 375 of the Indian Penal Code (IPC) creates
an unreasonable classification is based on the idea that it treats married women
differently from unmarried women in a manner that lacks a reasonable and justifiable
basis. This differentiation is seen as arbitrary and discriminatory, which is contrary to
the principles of equality before the law enshrined in Article 14 of the Indian
Constitution. Here's a breakdown of this argument:
1. Unreasonable Classification: To withstand constitutional scrutiny under Article
14, any classification made by law must have a rational and reasonable basis. In
the case of Exception 2, it classifies women into two categories: married and
unmarried. It then treats these categories differently in terms of legal protection
against sexual assault. Unmarried women are protected by the law if they are
subjected to non-consensual sexual intercourse, while married women are not,
provided they are above 18 years of age. This classification is based solely on
marital status.
2. Discrimination based on Marital Status: Exception 2 treats married and
unmarried women differently in terms of legal protection against sexual assault.
Unmarried women are protected by the law in cases of non-consensual sexual
intercourse, but married women are not if they are above the age of 18. This
distinction creates an arbitrary and discriminatory classification based on marital
status.
3. Violation of Right to Equality: Article 14 of the Sindhu Desh Constitution
guarantees the right to equality before the law and equal protection of the law.
When a provision like Exception 2 discriminates against a specific group of
individuals (in these case, married women) without a reasonable and justifiable
basis, it is argued to be in violation of Article 14.
4. Undermining the Dignity and Autonomy of Women: Critics of Exception 2
argue that it perpetuates gender-based discrimination by implying that a married
woman's consent or bodily autonomy is less significant than that of an unmarried
woman. This undermines the dignity and autonomy of married women.

MEMORIAL ON BEHALF OF RESPONDENT 14

5. International Commitments: Sindhu Desh is a signatory to international
conventions and treaties that advocate for the elimination of discrimination against
women. Exception 2 has been criticized for being inconsistent with these
international commitments.
6. Arbitrariness and Discrimination: By allowing non-consensual sexual
intercourse within a marriage to go unpunished under certain circumstances,
Exception 2 is seen as perpetuating gender-based discrimination and undermining
the dignity and autonomy of married women. This arbitrary distinction is contrary
to the principles of equality and non-discrimination enshrined in the Constitution.

1B. the classification does not have a reason nexus with the object
The argument that Exception 2 of Section 3756 of the Sindhu Desh Penal Code lacks a
rational nexus with its intended objective is a key point that this provision violates
constitutional principles, particularly Article 14, which guarantees equality before the
law. Here's how this argument is framed:
1. Absence of a Rational Nexus: To withstand constitutional scrutiny under Article
14, any classification made by law must have a reasonable and rational connection
with the object or purpose that the law seeks to achieve. In the case of Exception 2,
the classification is based on marital status. It treats married women differently
from unmarried women when it comes to protection against non-consensual
sexual intercourse within marital relationships. We argue that this classification
lacks a rational nexus with the objective of the law.

2. Exception 2 of section 375 of the Sindhu Desh Penal Code is violative of Article
19
Exception 2 of Section 375 of the Sindhu Desh Penal Code pertains to the definition
of rape within a marital relationship. It states that sexual intercourse by a man with his
own wife, who is not under 18 years of age, is not considered rape, even if it is against
her will. Article 19 of the Indian Constitution guarantees various freedoms, including
the freedom of speech and expression Article 19(1)(a).
1. Freedom of Speech and Expression Article 19(1)(a): Article 19(1)(a) of the
Sindhu Desh Constitution guarantees the fundamental right to freedom of

6
Section 375

MEMORIAL ON BEHALF OF RESPONDENT 15

 speech and expression. While this provision primarily relates to freedom of
speech, it has been interpreted broadly by the courts to encompass various
forms of expression, including personal autonomy and decision-making.
2. Impact on Freedom of Expression: Critics of Exception 2 may argue that it
infringes upon a woman's freedom to express her choices and preferences,
particularly in the context of her own body and sexual autonomy. If a woman
is subjected to non-consensual sexual intercourse within a marital relationship
and the law does not provide her with legal remedies or protection, it may
deter her from expressing her objections to such acts, out of fear or coercion.

CONTENTION 2(B)
Exception 2 imposes an unreasonable restriction

The argument that Exception 2 of Section 375 of the Sindhu Desh Penal Code
imposes an unreasonable restriction is based on the idea that this provision places
unjust and arbitrary limitations on a woman's right to bodily autonomy, choice, and
consent within a marital relationship. Such restrictions, it is argued, do not have a
reasonable basis and can be seen as violating the fundamental rights of women,
including their right to dignity and personal liberty.
1. Unreasonable Restriction on Personal Liberty (Article 21): Article 21 of
the Sindhu Desh Constitution guarantees the right to life and personal liberty.
Critics of Exception 2 contend that it imposes an unreasonable restriction on a
woman's personal liberty by denying her the legal protection and recourse
available to unmarried women in cases of non-consensual sexual intercourse.
This restriction is seen as arbitrary because it is solely based on marital status
and not on valid reasons related to the protection of individual rights.
2. Violation of Bodily Autonomy: Bodily autonomy is an essential aspect of
personal liberty and individual rights. Exception 2, by exempting non-
consensual sexual acts within a marital relationship from the definition of rape,
is seen as infringing upon a woman's bodily autonomy. It implies that her
autonomy over her own body is diminished within the confines of marriage,
which is considered an unreasonable and unjustifiable restriction.

MEMORIAL ON BEHALF OF RESPONDENT 16

3. Exception 2 of section 375 of the Sindhu Desh Penal Code is violative of Article
21
The argument that Exception 2 of Section 375 of the Sindhu Desh Penal Code is
violative of Article 21 of the Sindhu Desh Constitution is based on the contention that
this exception infringes upon a woman's fundamental right to life and personal liberty.
Article 21 guarantees the right to life and personal liberty, and it is one of the most
fundamental and overarching constitutional rights in India. Here's how the argument
is framed.
1. Violation of Right to Life and Personal Liberty (Article 21): Article 21
states that "No person shall be deprived of his life or personal liberty except
according to a procedure established by law." It is often interpreted broadly by
the courts to encompass not only the right to physical existence but also the
right to live with dignity and personal autonomy.
2. Infringement on Personal Autonomy: Critics argue that Exception 2
infringes upon a woman's personal autonomy, particularly within the context
of her marital relationship. This exception effectively allows non-consensual
sexual intercourse within a marriage to go unpunished under certain
circumstances, even though it is against the woman's will. Such an
infringement on a person's control over their own body and sexual choices is
seen as a violation of their personal liberty.
3. Dignity and Consent: The right to life and personal liberty also encompasses
the right to live with dignity. Exception 2 may undermine a woman's dignity
by implying that her consent and autonomy are less important within a marital
relationship. This can be seen as violating the principles of human dignity that
are integral to Article 21.

3A. Exception 2 violates the right to privacy of married women

The argument that Exception 2 of Section 375 of the Sindhu Desh Penal Code violates
the right to privacy of married women is a valid and significant concern. The right to
privacy, while not explicitly mentioned in the Sindhu Desh Constitution until the
Supreme Court's landmark judgment in the Puttaswamy case in 2017, has been
recognized as an implicit fundamental right. Exception 2 can be seen as infringing
upon this right in several ways:

MEMORIAL ON BEHALF OF RESPONDENT 17

 1. Intrusion into Marital Privacy: Exception 2 effectively allows the state to
intrude into the intimate and private sphere of marital relationships. By
exempting non-consensual sexual intercourse between a husband and wife
from the definition of rape, it can be interpreted as legitimizing state
interference in the sexual conduct and autonomy of married individuals.
2. Lack of Consent and Privacy: Within the context of marriage, consent to
sexual acts is a crucial aspect of personal autonomy and privacy. Exception 2,
by not considering non-consensual sexual acts as rape within marriage under
certain circumstances, can be seen as undermining the right of married women
to exercise control over their own bodies and decide when, how, and with
whom they engage in sexual activities.
3B. Exception 2 violates the right to health and reproductive choice
of a married woman
The argument that Exception 2 of Section 375 of the Sindhu Desh Penal Code violates
the right to health and reproductive choice of married women is a valid and important
concern. The right to health and reproductive autonomy are fundamental rights, and
any legal provision or practice that restricts these rights may raise constitutional issues.
Here's how Exception 2 could be seen as violating these rights:
1. Right to Health: The right to health is recognized as a fundamental human
right, encompassing physical, mental, and reproductive health. Exception 2, by
potentially allowing non-consensual sexual acts within a marriage to go
unpunished, can have serious implications for the physical and mental health
of married women. Such acts can result in physical injuries, sexually
transmitted infections, and emotional trauma, all of which can negatively
impact a woman's health.
2. Reproductive Autonomy: Reproductive autonomy is a crucial aspect of
women's rights. It includes the right to make informed decisions about one's
reproductive health, including family planning, contraception, and the choice
of whether or when to have children. Exception 2, by potentially allowing
non-consensual sexual acts within a marriage, can undermine a woman's
ability to make decisions about her own body and reproductive choices. It may
also lead to unwanted pregnancies and compromise a woman's ability to plan
her family in a manner consistent with her own health and well-being.

MEMORIAL ON BEHALF OF RESPONDENT 18

PRAYER OF RELIF

Wherefore, in the light of the facts of the case, issues raised, arguments advanced, and
authorities cited, may this Hon’ble Supreme Court be pleased to hold, adjudge,
and declare that:

A. Special leave petition should not be maintainable considering the miserable situation
of Women in the society.
B. Explanation 2 of Section 375 should be struck down as it violates constitutional
rights and forceful intercourse irrespective of whether the person is married or not
should be considered as rape.
C. The offence of rape should not be made gender neutral.

And / or Pass any such order, judgment or direction that the Hon’ble Court may deem fit in the
interest of equality, justice and good conscience.
For this act of kindness, the Counsels for the Respondent as in duty bound shall for ever pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

MEMORIAL ON BEHALF OF RESPONDENT 19