TC 08 Respondent

8TH SMT.
KASHIBAI NAVALE NATIONAL MOOT COURT COMPETITION, 2022
Team Code: TC-08R
8TH SMT. KASHIBAI NAVALE NATIONAL MOOT COURT

COMPETITION, 2022
BEFORE THE HON’BLE SUPREME COURT OF MIRANCHI
MISCLENIOUS WRIT PETITION UNDER ARTICLE 32 OF

CONSTITUTION OF MIRANCHI, 1950.
In the matter of
ANMOL JEEVAN (NGO)

(Petitioners)
V.
UNION OF MIRANCHI AND ORS.

(Respondents)
ORIGINAL WRIT JURISDICTION
PUBLIC INTEREST LITIGATION
DRAWN AND FILED BY THE COUNSEL APPEARING ON THE BEHALF OF

RESPONDENT
Memorial on the behalf of Respondent Page 1

8TH SMT. KASHIBAI NAVALE NATIONAL MOOT COURT COMPETITION, 2022
TABLE OF CONTENTS
• STATEMENT OF FACTS……….. ………………………………………….........…3
• STATEMENT OF JURISDICTION………………..……….……………….......……4
• ISSUES RAISED... …………………………………………………………...............5
• SUMMARY OF ARGUMENTS ………………………………………………..……6
ARGUMENTS ADVANCED 7-23
ISSUE1. WHETHER THE PETITION FILED BY ANMOL JEEVAN (NGO) IS

MAINTAINABLE BEFORE THIS HON’BLE SUPREME COURT?
ISSUE2. WHETHER A MARRIAGE BRINGS WITH IT THE RIGHT OF A HUSBAND

TO HAVE SEXUAL INTERCOURSE WITHOUT HIS WIFE'S CONSENT?
ISSUE3. WHETHER CLASSIFICATION OF RIGHT TO PROSECUTE A MAN ON

THE BASIS OF RELATIONSHIP/ MARRIAGE IS UNREASONABLE AND
OFFENDS ARTICLE 14 OF THE CONSTITUTION?
ISSUE4. WHETHER STRIKING OFF THE EXCEPTION TWO OF SEC 375 OF MPC
WOULD AMOUNT TO CREATION OF NEW OFFENCE?
PRAYER 24

STATEMENT OF FACTS
Background facts:
1. That Jay T and Kite are a married heterogeneous couple living together in their flat premises
at Geezer, a tier-1 city. Jay T and Kite had an arranged marriage and both their parents were
responsible in finding each other for them.
2. That Jay T and Kite got married on 06/05/2019 as per the customs and traditions prevalent
and accepted by the society. Jay T and Kite lived together for a period of 15 months during
which they had many disagreements that led to physical confrontations on some occasions. On
09/08/2020 at 04:00am Kite left their house and went to the local police station at Pridelands
to file a complaint.
3. That The police admitted Kite to the Government Hospital and also filed an FIR and later on
a Charge sheet was framed accusing husband Jay T of crimes under sections 323, 324, 325,
326, 352, 375, 376, 377, 498-A MPC r/w section 3 of the Protection of Women from Domestic
Violence Act,2005.
4. That the Sessions Court at Pridelands tried and convicted Jay T of 6 offences under sec 498-
A MPC but acquitted him of all charges and sentenced him for 2 years of imprisonment.
Aggrieved by this order Kite approached the Hon’ble Supreme Court by Special Leave.
PETITIONER APPROCHED FOR LEGAL REMEDY

5. Anmol Jeevan, an NGO working for the rights of minorities groups have filed a PIL before
the Hon’ble Supreme Court challenging the validity of Section 376B of MPC and 198B of
Cr.P.C stating that these sections flow from the exception to sec 375 as presently sexual acts
by a man with his own wife is not seen as an offence.
6. Hence, lies the petition.

STATEMENT OF JURISDICTION
This Honorable Supreme Court of India has the jurisdiction to try, adjudicate and entertain this
matter under Art.321 of Constitution of India, 1950.
1
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights
Conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature
of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the
Enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (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.

ISSUE RAISED
ISSUE1. WHETHER THE PETITION FILED BY ANAND JEEVAN (NGO) IS




SUMMARY OF ARGUMENTS
ISSUE1. WHETHER THE PETITION FILED BY ANAND JEEVAN (NGO) IS

The counsel for the respondent humbly submits before this honorable court that the instant
issue is not maintainability due as the petition nor have a locus standi to approach the court
under the article 32 of the Miranchi Constitution, neither was there any violation of the
fundamental rights, making their claim non maintainable before this honorable court.

The counsel for the respondents humbly submits before this Honorable Court that marriage
brings with it the right of a husband to have sexual intercourse without his wife’s consent as
marriage have an implied consent theory. One of the main aims of marriage is procreation so
it is necessary to consummate the marriage between the union. A marriage is a sacrament and
maintain that sanctity it is necessary to avoid excessive interference of the state in that private
sphere of the society.

It is humbly submitted before this Hon’ble Supreme Court that the Exception II to Section 375
of MPC 1860 is not violating the provisions of Constitution of India 1950. Article 14 of The
Constitution of India, 1950 talks about the reasonable classification.it also talks about the
intelligible differentia which means that there can be reasonable classification on the different
groups.
ISSUE4. WHETHER STRIKING OFF THE EXCEPTION TWO SEC 375 OF MPC
The counsel for petitioner humbly submits before this Honorable Court that Marital rape should
not be covered in ambit of Section 375 of MPC 1860. If we can see in the context of our
provisions of Constitution of India 1950, then somewhere it violates the Right to privacy and
their personal liberty. After marriage, having sexual intercourse and procreation of family is
one of the main purposes of marriage, it will be unfair to make marital rape as an offence same
as rape.

ARGUMENTS ADVANCED
ISSUE1. WHETHER THE PETITION FILED BY ANMOL JEEVAN IS
The counsel for the respondent humbly submits before this court that the petition filed by the
NGO, ANAND JEEVAN (NGO) is not maintainable as it does not fit in the criteria of public
interest litigation.
In S.P. Anand v. H.D. Deve Gowda12, the Hon'ble Supreme Court held that it is of utmost
importance that those who invoke this Court's jurisdiction seeking a waiver of the locus standi
rule must exercise restraint in moving the Court by not plunging in areas wherein they are not
well-versed. Such a litigant must not succumb to spasmodic sentiments and behave like a
knight-errant roaming at will in pursuit of issues providing publicity. He must remember that
as a person seeking to espouse a public cause, he owes it to the public as well as to the court
that he does not rush to court without undertaking research, even if he is qualified or competent
to raise the issue. Further, it must also be borne in mind that no one has a right to the waiver of
the locus standi rule and the court should permit it only when it is satisfied that the carriage of
proceedings is in the competent hands of a person who is genuinely concerned in public interest
and is not moved by other extraneous considerations.
In Balco Employees' Union (Regd.) v. Union of India3, the Hon'ble Supreme Court, held that,
"Public interest litigation, or PIL as it is more commonly known, entered the Miranchi judicial
process in 1970. It will not be incorrect to say that it is primarily the judges who have innovated
this type of litigation as there was a dire need for it. At that stage, it was intended to vindicate
public interest where fundamental and other rights of the people who were poor, ignorant or in
socially or economically disadvantageous position and were unable to seek legal redress were
required to be espoused. PIL was not meant to be adverbial in nature and was to be a
cooperative and collaborative effort of the parties and the court so as to secure justice for the
poor and the weaker sections of the community who were not in a position to protect their own
interests. Public interest litigation was intended to mean nothing more than what words
themselves said viz. "litigation in the interest of the public."
2
S.P. Anand v. H.D. Deve Gowda, 1996 (6) SCC 734
3
Balco Employees' Union (Regd.) v. Union of India, 2002 (2) SCC 333

But with the passage of time, things started taking different shapes. The process was sometimes
abused. Proceedings were initiated in the name of public interest litigation ventilating private
disputes. In Ramsharan Autyanuprasi v. Union of India4, it was said that the dispute between
two warring groups purely in the realm of private law would not be allowed to be agitated as
the public interest litigation. The counsel would like to put to the notice, firstly that both Kite
is completely capable of coming to the court and are not educationally or economically weak.
They are capable enough to pray in the court if any of their fundamental rights have been
infringed. Whereas PIL, as stated before, is a remedy given to the public to secure justice for
the poor and the weaker sections of the community who were not in a position to protect their
own interests.
Furthermore, PIL’s are a remedy granted to secure the rights in the interest of the public and
not merely for the private interests. Whereas in the present matter, the objection on the marriage
was raised by none other than Kite, and the objection raised was on the grounds of domestic
violence. A domestic violence case is not a public matter or interest but a private interest and
objections. Thus, the counsel states that in the present matter neither was Kite, incapable of
approaching the court under the face of being poor or weak nor was this case a matter of public
interest and was a private matter instead. Therefore, the counsel contends that the petition filed
should not be allowed to be agitated as a public interest litigation and thus the petition would
fail to be maintainable.

The council for the respondent humbly submits before this Honorable Court that a marriage
does bring with it the right of a husband to have sexual intercourse without his wife’s consent.
It is humbly submitted that Section 375 the Penal Code defines rape as sexual intercourse with
a woman against her will, without her consent by coercion, misrepresentation or fraud or at a
time she has been intoxicated or duped, or is of unsound mental health and in any case if she
is under the age of 18 years.
Moreover, Section 375 of MPC have two exceptions-
Exception 1- A medical procedure or intervention shall not constitute rape.
4
Ramsharan Autyanuprasi v. Union of India [1989 Supp (1) SCC 251]

Exception 2- Sexual intercourse or sexual act by a man with his own wife, the wife not being
under fifteen years of age, is not rape.
It is humbly submitted that Sir Matthew Hale, Chief Justice in 17th Century England, said “the
husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual
consent and contract, the wife hath given up herself this kind unto her husband which she
cannot retract."
II.1. Historical Background of Marital Rape in Customary Laws.
Even in the context of political thinker the Laws of Manu, India’s ancient revered scripture
merrily educates women. His dictum that a wife ought to respect her husband as God and serve
him faithfully, was accepted as applicable to all women.
Moreover, Right from the Manusmriti5 where beating of wives and sexually assaulting them is
justified on grounds of maintaining the family hierarchy, women have sought to believe that
following the husband‘s orders and fulfilling his sexual desires is their duty as an ideal wife.
Furthermore, it is considered that it is the duty of a wife that she has to fulfill all the wish and
desires as she is the binding force in the institution marriage.
It is humbly submitted that the definition of rape remains the same, i.e., sexual intercourse or
sexual penetration when there is lack of consent6 Therefore, an essential ingredient to prove
the crime of rape is to prove the lack of consent. This burden to prove the lack of consent often
rests on the victim. In some instances, as in the case of minors, it is presumed that consent does
not exist as they are presumed by law to be incapable of consenting to such sexual acts7 On the
other hand, there are also instances when consent is presumed to exist. Often, this presumption
exists when the victim and the perpetrator are married8 in such instances, the idea of marital
rape becomes antithetical.
5
Bhargava Deepali (1989); Manu Smriti : A Sociological Analysis; University of Virginia; Rawat Publications
6
The Miranchi Penal Code, 1860, §375.
7
The Protection of Children from Sexual Offences Act, 2012, §3. Consent is immaterial when the assault is
against a child
8
The Miranchi Penal Code, 1860, S.375, Exception 2.

According to R.N Sharma, “Marriage is a religious sacrament in which a man and woman are
bound in permanent relationship for spiritual social and physical purpose of dharma,
procreation and sexual pleasure.”
It is humbly submitted that there are five main aims of Hindu marriage- 1. Dharma, 2. Praja or
Progeny, 3. Kama, 4. Rina, 5. Socio-Cultural Continuity.
• Among which Dharma states that: The highest aim of marriage, according to the Hindu
thinkers was ‘dharma’. For a Hindu, marriage is meant for the fulfillment of his dharma
or religious duties. It is the duty of the householder to offer ‘Pancha Maha Jajnas’ in
the company of his wife. If the wife dies the householder must take a second wife for
performing his obligations. As such a wife is a religious necessity for a Hindu.
• The second aim of Hindu marriage is the procreation of children, particularly a male
child. The Hindu thinkers regarded procreation as duty in the interests of both the family
and community as well as for one’s own salvation.
• According to Kama: Sex is one of the aims of marriage. Hence, it is found that sex has
been given a secondary role in Hindu marriage. Although sex is important for the
healthy development of personality of an individual.
So, it can be easily understood that the respondent is only moving according to the Hindu rituals
and customs which has already been stated in Hindu religion. He is not doing any crime or
wrong to her wife, he is just fulfilling his duties which has been stated in his rituals and
customs...
It is humbly submitted that making marital rape as an offence or making it a part of Section
375 of MPC 1860 will destroy the aims of a Hindu marriage because a marriage is done to give
their sexual relationship a name and giving a proper legitimacy of child. However, sexual
intercourse can be done without the marriage also but society and the rituals, norms and
traditions of any religion not particularly Hindu religion will not accept the relationship which
has been built by them and hence they have to face the adverse effect of this step.
Therefore, marriage is done to fulfill all the sexual desires and to give their relationship a name
and hence it is fine if a husband is making sexual relationship with his wife. If marital rape will

be covered in ambit of section 375 of MPC, 1860 then it may lead to excessive interference
with marital relationships and may destroy the institution of marriage
It is humbly submitted that there is a “implied consent theory9”it says that couple who married
were deemed to have given "implied consent" to have sex with each other, a doctrine which
barred prosecution of a spouse for rape. Here, an irrefutable presumption of consent is thought
to exist when a man and woman enter the institution of marriage. Marriage is considered to be
a civil contract and consent to sexual activities is thought to be the defining element of this
contract10.
Furthermore, Oklahoma State Law, being one of the more extreme examples, excludes spousal
rape from their definition of rape by claiming, "Rape is an act of sexual intercourse involving
vaginal or anal penetration accomplished with a male or female who is not the spouse of the
perpetrator.
Furthermore In case of Commonwealth v. Chretien in Massachusetts11 (1981) stated that,

"There was no unfairness in subjecting a defendant to criminal prosecution for rape of his wife
under G. L. c. 265, Section 22, as amended by St. 1974, c. 474, Section 1, which this court
construes to eliminate the common law spousal exclusion, where the rape occurred after the
wife had obtained a judgment of divorce nisi and was therefore unlawful even under the
common law.”12 They concluded that the husband could be convicted of rape only because the
wife had already ordered divorce papers.
The PWDVA, 2005 and S.498A of the MPC already provide a range of civil and criminal
remedies for women who are victims of forms of abuse in the marital sphere.13
Furthermore, In The State of Karnataka v. Krishnappa14, the Supreme Court held that “sexual
violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy
and sanctity of a female. “In the same judgment, it held that non-consensual sexual intercourse
amounts to physical and sexual violence.
9
^ See e.g. R v R [1992] 1 AC 599
10
Id., 944.
11
383 Mass. 123
12
"CHRETIEN, COMMONWEALTH v., 383 Mass. 123
13
The Protection of Women from Domestic Violence Act, 2005; The Miranchi Penal Code, 1860, S.498A
14
ILR 1994 KAR 89

Moreover, in Sree Kumar v. Pearly Karun15, the Kerala High Court watched that the offense
under section 376A, MPC won’t be pulled in as the spouse is not living independently from
her husband under a declaration of partition or under any custom or use, regardless of the
possibility that she is liable to sex by her better half without wanting to and without her assent.
For this situation, the spouse was subjected to sex without her will by her husband when she
went to live respectively with her husband for two days as result of settlement of separation
procedures which was going ahead between the two parties. Subsequently the spouse was held
not liable of raping his wife.
It is humbly submitted that one of the main argument and reason for not making marital rape
as crime is that it can be misused like the Section 498A. Furthermore, a violation of this section,
its goals and its aims are on the rise with the woman.
Frivolously making false allegations against their husbands with the purpose of getting rid of
them or simply hurting the family. The abuse of this section is rapidly increasing and the
women often well- educated know that this section is both cognizable and non-bailable and
impromptu works on the complaint of the woman and placing the man behind bars. Like in the
case of Savitri Devi v Ramesh Chand & Ors,16 the court held clearly that there was a misuse
and exploitation of the provisions to such an extent that it was hitting at the foundation of
marriage itself and proved to be not so good for health of society at large. The court believed
that authorities and lawmakers had to review the situation and legal provisions to prevent such
from taking place.
Moreover, this section was made keeping in mind protection of the married woman from
unscrupulous husbands but is clearly misused by few women and again this is strictly
condemned in Saritha v R. Ramachandran 17where the court did notice that the reverse trend
and asked the law Commission and Parliament to make the offence a non-cognizable and
billable one. It is been a duty of the court to condemn wrongdoings and protect the victim but
what happens when the victim turns into the abuser? What remedy does the husband have here?
15
1999 (2) ALT Cri 77
16
II (2003) DMC 328
17
I (2003) DMC 37 (DB)

On this ground, the woman gets to divorce her husband and re-marry or even gain money in
the form of compensation.
The position of the women in India is still bad. They still need rights to alleviate themselves in
society but many a times fail to notice others’ rights as long as their rights are ensured.
Moreover, Punjab and Haryana High court observed in Jasbir Kaur v. State of Haryana18, case
as: “It is known that an estranged wife will go to any extent to rope in as many relatives of the
husband as possible in a desperate effort to salvage whatever remains of an estranged
marriage.”
It is humbly submitted that the Supreme Court, in a relatively recent case, Sushil Kumar
Sharma v. Union of India and others19 observed as:
The object of the provision is prevention of the dowry menace. But as has been rightly
contented by the petitioner that many instances have come to light where the complaints are
not bonafide and have been filed with oblique motive. In such cases acquittal of the accused
does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes
adverse media coverage adds to the misery. The question, therefore, is what remedial measures
can be taken to prevent abuse of the well-intentioned provision. Merely because the provision
is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck
personal vendetta or unleash harassment. It may, therefore, become necessary for the
legislature to find out ways how the makers of frivolous complaints or allegations can be
appropriately dealt with. Till then the Courts have to take care of the situation within the
existing frame work.
It is humbly submitted that the Supreme Court, In Mohd. Hoshan v. State of A.P20 case,
observed as:
“Whether one spouse has been guilt of cruelty to the other is essentially a question of fact. The
impact of complaints, accusation or taunts on a person amounting to cruelty depends on various
factors like the sensitivity of the victim concerned, the social background, the environment,
education etc. Further, mental cruelty varies from person to person depending on the intensity
18
(1990)2 Rec Cri R 243
19
JT 2005(6) 266
20
2002 CriLJ 4124

of the sensitivity, degree of courage and endurance to withstand such cruelty. Each case has to
be decided on its own facts whether mental cruelty is made out.”
The Supreme Court laid down directions in Rajesh Sharma and Ors vs State of UP 21“to
prevent the misuse of Section 498A [on a husband or his relative subjecting a woman to
cruelty] of the Miranchi Penal Code (MPC) as acknowledged in certain studies and decisions”.
“Seventy-five percent of cases are withdrawn because the women use the charges to extort
money,” said Wasif Ali from the Save Family Foundation, a men’s rights group that offers
counseling and legal assistance to “distressed men” accused under this law and others. “Even
of the 15 percent convicted, many would be innocent.”
In the very recent case of Dilip Pandey & Ors. v. State of Chattisgarh22, Justice N.K
Chandravanshi observed that “forced sex in marriage cannot call it illegal and “sexual
intercourse by husband is not rape, even if it is by force”. The court has placed its reliance on
the 2018 Gujarat High Court judgment of Nimesh Bhai Bharat Bhai Desai vs the State of
Gujarat23 and thorough examination of section 375 of IPC which included the exception to
under as follows,:
“Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age,
is not a rape.” held that any sexual act by a legally wedded husband (the wife not being under
15 years of age) is not rape. The court denied taking the factor of consent into notice and held
consent is immaterial to the present case since Exception 2 does not talk about consent at all,
holding charges under Section 376 against the applicant as erroneous and illegal.
21
1265 OF 2017 [Arising out of Special Leave Petition (Cr.L.) No.2013 of 2017]
22
CRR/177/2021
23
2018 SCC OnLine Guj 732


It is humbly submitted before this Hon’ble Supreme Court that classification of right to
prosecute a man on the basis of relationship/marriage is not unreasonable and does not offend
Article 14 of the Constitution.
Marriage is considered to be a sacred institution that forms the bedrock of our society. It is
viewed as deeply personal and the State is hesitant to disturb this delicate space. This is to
maintain the privacy of citizens and the intrusion of the State in this sphere would disrupt this
privacy. Thus, the State does not compel any two individuals to marry or divorce.
It is humbly submitted that there is an analysis of judicial decisions with respect to matters
traditionally conceived to be within the private sphere of marriage and family highlights the
hesitation of the judiciary to bring in fundamental rights in this private sphere. The judiciary
has created this fictitious private sphere where it refuses to implement and read in fundamental
rights. The effect of this has been to negate the question of whether marital rape is an
infringement of fundamental rights. This is because in the perceived marital sphere, there is no
role for fundamental rights.
III.1. The creation of a private sphere where fundamental rights cannot be enforced.
It is necessary to analyses the reluctance of the judiciary to engage with fundamental rights in
the private sphere by tracing the trajectory of the decisions with regard to ‘restitution of
conjugal rights’ (‘RCR’). This is because the constitutional law issues that arise with regard to
RCR are analogous to the debate on marital rape. The RCR is a remedy that originated in
English law, although it no longer exists there.24
It is a mechanism through which a court may pass an order compelling a married couple to live
together, a restitution of a spouse’s conjugal right against the other. In India, this is found in
24
The remedy for restitution of conjugal rights was primarily granted by Ecclesiastical Courts. However, in
1969, Justice Scarman recommended the abolition of this remedy. Accepting this recommendation, an
amendment was made to the relevant law which prevented the courts from granting this remedy.

S.9 of the Hindu Marriage Act, 1956 (‘Hindu Marriage Act’).25 The gist of the section is that
if a husband or wife does not live with the other spouse ‘without reasonable excuse’, the court
can grant a decree of RCR. RCR has been known to work to the disadvantage of women.
Moreover, the Delhi High Court subscribed the theory of ‘marital privacy’. The Court asserted
that:
“The introduction of constitutional law into the ordinary domestic relationship of husband and
wife will strike at the very root of that relationship and will be a fruitful source of dissension
and quarrelling. It will open the door to unlimited litigation in relationships which should be
obviously as far as possible protected from possibilities of that kind. The domestic community
does not rest on contracts sealed with seals and sealing wax. Nor on constitutional law. It rests
on that kind of moral cement which unites and produces ‘two-in-one-ship’ ”26
Furthermore, In Sareetha v. the Andhra Pradesh High Court27 held that the concept of forced
sex was not in sync with the concept of ‘marital privacy’. They read ‘marital privacy’ to
indicate that the State cannot force two people to resume conjugal relations because this invades
their privacy.
The PWDVA, 2005 and S.498A of the MPC already provide a range of civil and criminal
remedies for women who are victims of forms of abuse in the marital sphere.71 This was to
protect the rights of such women.28
III.2. Intelligible differentia or reasonable classification under article 14 of the

constitution
It is humbly submitted that the law treats a married woman and an unmarried woman different
with respect to their rights, it would not be in violation of Article 14 since marriage serves as a
reasonable classification. It is important to note that the argument is not that rape per se is not
unconstitutional, but rather that marriage satisfies the criteria laid down for reasonable
differentia under Article 14 of the Constitution.
25
The Hindu Marriage Act, 1956, S.9.
26
Harvinder Kaur v. Harmander Singh, AIR 1984 Del 66.
27
AIR 1983 AP 356.
28
The Protection of Women from Domestic Violence Act, 2005; The Miranchi Penal Code, 1860, S.498A

However, While Article 14 forbids the class legislation but it does not forbid the reasonable
classification of persons, objects and transactions by the legislature for the purpose of achieving
specific ends. It is rested upon the real and substantial distinction bearing a just and reasonable
relation to be achieved by the legislation. Classification to be reasonable must fulfill the
following two conditions:
• Firstly, the classification must be founded on the intelligible differentia which
distinguishes person or thing that are grouped together from others left out of the group.
• Secondly the differentia must have a rational relation to the object sought to be achieved
by the act.
The necessary thing is that there must be nexus between the basis of classification and the
object of act which makes the classification. Thus, the legislation may fix the age at which the
persons shall be deemed competent to contract between themselves but no one will claim that
competency. No contract can be made to depend upon the stature of color of hair. Such a
classification will be arbitrary.
Likewise. The Exception II or the age of wife being under the age of 15 years is a reasonable
classification as it satisfies the both conditions:
• The classification is done on the group which is left out.
• The main aim of this Exception II is to protect the minor girl because they have the
most adverse effect of this offense
Hence, the classification is not arbitrary and it does not violate the rights of a married women.
Moreover, in case of Sanaboina Satyanarayan v. Gov. of A. P29 it was held that they
formulated the scheme for prevention of crime against women. In prisons also prisoners were
classified in to two categories. First prisoners guilty of crime against women and second
prisoners who are not guilty of crime against women. Prisoners who are guilty of crime against
women challenge the court saying that there right to equality is deprived. Court held that there
is reasonable classification to achieve some objective. Hence, Exception 2 comes under the
category reasonable classification and it does not violate any human rights of wife above the
age of 15 years.
29
Appeal (crl.) 1227 of 2002

It is humbly submitted that The Delhi High Court in Harvinder Kaur v. Harmander Singh30
(1984) stated that — “Introduction of Constitutional Law in the home is most inappropriate.
It is like introducing a bull in a china shop. It will prove to be a ruthless destroyer of the
marriage institution and all that stands for. In the privacy of the home and the married life
neither Art. 21 nor Art. 14 have any place.
Moreover, in Gobind v State of Madhya Pradesh31, the Supreme Court held, that:
“Any right to privacy must encompass and protect the personal intimacies of the home, the
family, marriage, motherhood, procreation and child rearing.”
(a) A spatial idea of privacy, flowing from the use of the word “home”, and the fact that all
the terms that follow it refer to activities normally undertaken within the home.
(b) An institutional, or relational idea of privacy: the home (in the sense of a household), the
family, marriage, and motherhood are all social institutions. The right to privacy, then, protects
the sanctity of these institutions by insulating them against State interference.
(c) A functional idea of privacy: motherhood, procreation, and child-rearing, in particular, seem
to suggest domestic activities (and the absence of ‘fatherhood’, in turn, suggests the gendered
nature of the division).
In Anuj Garg vs Hotel Association32, as we have discussed previously on this blog, the
Supreme Court made it clear that stereotypical assumptions about the roles of the sexes in
modern society, or about the spheres in which they should be confined by virtue of birth, cannot
be made the basis of laws that grant unequal benefits or burdens to men or women.
In Uday vs State of Karnataka33 – the accused likewise was not convicted of rape as girl was
the consenting party to the sexual intercourse. Furthermore, in case Sakshi vs.Union of
India34the PIL was filed, the petitioner contended that interpretations of Section 375 and
Section 376 IPC are inconsistent with the current of state of affairs in society. The Apex court,
in view of rise in crime and growing menace of sexual abuse of children, requested the law
30
AIR 1984 Delhi 66
31
1975 AIR 1378,1975 SCR (3) 946
32
Appeal(civil)5657 of 2007
33
2003 CrLJ 1539 SC
34
1999 6SCC 591:AIR 2000 SC 3479

commission to examine the issue within 3 months and also the feasibility of making
recommendations for amendment of Penal Code or of dealing with the problem in any other
manner.
The Judicial decision of Queen Empress v. Haree Mythee35, it was held that, the wife over the
age is of 15, then the rape law does not apply in that situation. In this case the husband was
punished because wife was of 11 years only.
It is humbly submitted that the National Family Health Survey - 3 (of 2005) in which it is stated
that 46% of women in India between the ages of 18 and 29 years were married before the age
of 18 years. It is also estimated, interestingly but disturbingly, that there are about 23 million
child brides in the country. As far as any remedy available to a child bride is concerned, the
counter affidavit draws attention to Section 3 of the Prohibition of Child Marriage Act, 2006
(the PCMA). Under Section 3(1) of the PCMA a child marriage is voidable at the option of any
contracting party who was a child at the time of the marriage.
The marriage can be declared a nullity in terms of the proviso to Section 3(1) of the PCMA
through an appropriate petition filed by the child within two years of attaining majority and by
approaching an appropriate court of law. It is also stated that in terms of Section 13(2) (iv) of
the Hindu Marriage Act, 1955 a child bride can petition for a divorce on the ground that her
marriage (whether consummated or not) was solemnized before she attained the age of 15 years
and she has repudiated the marriage after attaining that age but before attaining 18 years of age.
Moving away from fundamental rights to the directive principles, the court pressed into service
provisions relating to the health of women and children. Article 39(f) directs the State to ensure
that children are given opportunities and facilities to develop in a healthy manner and in
conditions of freedom and dignity, and that childhood and youth are protected against
exploitation and moral and material abandonment. Article 42 directs the State to make
provisions for just and humane conditions of work, and maternity beliefs. Article 45 stipulates
that the State shall provide early childhood care and education for all children until the age of
six. Article 47 lays down the raising of level of nutrition and standard of living of people, and
improvement of public health as a primary duty of the State.
35
(1890) 18 Cal 49

The educated woman of today must agree with the mantra of equality and demand the same
but the trend is slowly getting reversed. Women are taking due advantage of the fact that they
are referred to as the ‘weaker sex’ and on the foundation of rights ensured to them are violating
others’ rights.
It is humbly submitted before the honorable court that striking off Exception II of S.375 would
amount to creation of new offence and would be harmful to the bedrock of society. Marital
rape being criminalized can lead to destruction of private sphere of marriage.
The first report to deal with this issue was the 42nd Law Commission Report36. Since the law
has been amended at various intervals subsequent to this report, the importance of this report
is restricted to understanding the prism through which the Law Commission views marital rape.
This report made two important suggestions. First, it noted that in instances where the husband
and wife were judicially separated, the exception clause must not apply. Although this was a
laudable suggestion, the reasoning given for this was unclear. It stated that “in such a case, the
marriage technically subsists, and if the husband has sexual intercourse with her against her
will or her consent, he cannot be charged with the offence of rape. This does not appear to be
right”. It does not discuss the reason why this is not right. It implies that consent is presumed
in situations where the husband and wife live together and cannot be implied when they do not
live together.
Furthermore, in summary, this report highlighted the presumption of consent that operates
when a husband and wife live together and the differentiation between marital rape and other
rape, where the former is viewed as less serious.
The Law Commission was directly faced with the validity of the exception clause in the 172nd
Law Commission Report37 Here, during the consultation rounds, arguments were advanced
regarding the validity of the exception clause itself38. It was argued that when other instances
of violence by a husband toward wife was criminalized, there was no reason for rape alone to
36
Law Commission of India, Miranchi Penal Code, Report No. 42 (June 1971)
37
Law Commission of India, Review of Rape Laws, Report No. 172 (March 2000)
38
Id., 3.3

be shielded from the operation of law.39The Law Commission rejected this argument since it
feared that criminalization of marital rape would lead to “excessive interference with the
institution of marriage”. This report sheds light on the interplay between marital rape and the
sanctity of the institution of marriage.
It is humbly submitted that in light of this, the Criminal Law Amendment Bill, 2012
(‘Amendment Bill, 2012’) was drafted.40 In this Bill, the word ‘rape’ was replaced with ‘sexual
assault’ in an attempt to widen its scope but the Bill did not contain any provision to criminalize
marital rape.
However, The Parliament Standing Committee on Home Affairs in its 167th Report (‘Standing
Committee Report’) reviewed this Amendment Bill, 2012 and also organized public
consultations41. The Standing Committee Report argued that, first, if they did so, the “entire
family system will be under greater stress and the committee may perhaps be doing more
injustice”42
Moreover, recently, in 2015, this argument was reiterated by the Ministry of Home Affairs in
reply to a bill proposed by a Member of Parliament which aimed to criminalize marital
rape.43The press release stated that it “was considered that the concept of marital rape, as
understood internationally, cannot be suitably applied in the Miranchi context”.44 One of the
reasons given for this was the “mind-set of the society to treat the marriage as sacrament”45.
IV.1. ALTERNATIVE REMEDIES
The Parliament Standing Committee on Home Affairs in its 167th Report and reviewed this
Amendment Bill, 2012 and the Committee said that sufficient remedies already existed since
39
Id
40
The Criminal Law Amendment Bill, 130 of 2012
41
STANDING COMMITTEE ON HOME AFFAIRS, Fifteenth Lok Sabha, Report on The Criminal Law
(Amendment)
42
Id.
43
The Criminal Laws (Amendment) Bill, 2014, 28 of 2014. (This Bill was a Private Member Bill proposed by
Ms. Kanimozhi on the 28th of November, 2014
44
Press Release, PRESS INFORMATION BUREAU, April 29, 2015,
45
Id.

the family could itself deal with such issues and that there existed a remedy in criminal law,
through the concept of cruelty as under S.498A of the MPC.46
It is humbly submitted that The Delhi Government, contended before the Delhi High Court that
the act of marital rape has already been criminalized as cruelty under Section 498A of the
Miranchi Penal Code (MPC) and hence, there was no need for creating a new offence
penalizing the same. Section 498A criminalizes a situation where a married woman is subjected
to cruelty by her husband or his relatives. Cruelty has been defined as any willful conduct
which is of such a nature which is likely to drive the woman to commit suicide or to cause
grave injury or danger to life, limb or health (whether mental or physical) of the woman.
Hence, looking at the reasons advanced by the Government and the analysis undertaken by
various Law Commission reports, there are three broad themes in the arguments against
criminalization of marital rape.
• The first is with regard to the goal of protecting the institution of marriage and as an
extension, not interfering with it to ensure that the institution remains sacred. This is
seen in the MPC as well as the Law Commission reports.
• The second deals with the alternative remedies that already exist for a woman to seek
recourse through, within the family and in the law itself such as S.498A of the MPC,
the Protection of Women from Domestic Violence Act, 2005 (‘PWDVA, 2005’) and
various other personal laws dealing with marriage and divorce. This is used to enforce
the idea that criminalization is not important because women have existing recourses
thereby reducing the urgency of the advocacy to criminalize marital rape.
• The third is focused upon the cultural values in India, emphasizing how these values
should hamper us from criminalizing marital rape.
S. 13 of Hindu Marriage Act, 1955 also provides cruelty as ground for divorce, not only
physical cruelty but also mental cruelty. Treating the petitioner with cruelty after the
solemnization of marriage is a ground for divorce. Cruelty can be both physical and mental.
Physical beating or causing bodily injury to the spouse amounts to physical cruelty. Physical
46
See The Miranchi Penal Code 1860, S.498A

cruelty is easy to determine. It is difficult to say what constitutes mental cruelty. Cruelty is also
an offense under section 498A MPC.
IV.2. OVERBURDEN ON MIRANCHI JUDICIARY
It is humbly submitted that by making a new law while one can file that same offence under
existing Section can overburden the judiciary system.
It accounted for 8.19% of the number of pending cases in the family courts in India as of May
2016. ... The number of pending cases in the family courts in Delhi was 29122 as of May 2016
(4.33% of All India). The number of pending cases in the family courts in Karnataka was 24612
as of May 2016 (3.66% of All India).
According to the National Crime Records Bureau (NCRB) 2013 annual report, 24,923 rape
cases were reported across India in 2012. Out of these, 24,470 were committed by someone
known to the victim (98% of the cases). India has been characterized as one of the "countries
with the lowest per capita rates of rape.

PRAYER
Therefore, if it may please this Hon`ble Court in the lights of Facts Presented, Issues Raised,
Arguments Advanced, and Authorities Citied, the Counsel for Respondent humbly prays
before this Hon`ble Court, to kindly adjudge and declare:
1) That the petition filed by the NGO ANAND JEEVAN before this Hon’ble Supreme Court
is non maintainable.
2) That a marriage does brings with it the right of a husband to have sexual intercourse without
his wife's consent.
3) That classification of right to prosecute a man on the basis of relationship/ marriage is not
unreasonable and offends article 14 of the constitution.
4) That striking off the exception two of sec 375 of MPC would amount to creation of new
offence.
And/or pass any other appropriate order as Court may deem fit and for this act of Kindness,
the Respondent as in duty bound, shall forever pray.
Sd/
……………………….
Respectfully Submitted
Counsel of Respondents

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8TH SMT.

KASHIBAI NAVALE NATIONAL MOOT COURT COMPETITION, 2022

Team Code: TC-08R

8TH SMT. KASHIBAI NAVALE NATIONAL MOOT COURT

BEFORE THE HON’BLE SUPREME COURT OF MIRANCHI

MISCLENIOUS WRIT PETITION UNDER ARTICLE 32 OF

ANMOL JEEVAN (NGO)

UNION OF MIRANCHI AND ORS.

ORIGINAL WRIT JURISDICTION

PUBLIC INTEREST LITIGATION

DRAWN AND FILED BY THE COUNSEL APPEARING ON THE BEHALF OF

Memorial on the behalf of Respondent Page 1

• STATEMENT OF FACTS……….. ………………………………………….........…3

• ISSUES RAISED... …………………………………………………………...............5

• SUMMARY OF ARGUMENTS ………………………………………………..……6

ARGUMENTS ADVANCED 7-23

ISSUE1. WHETHER THE PETITION FILED BY ANMOL JEEVAN (NGO) IS

ISSUE2. WHETHER A MARRIAGE BRINGS WITH IT THE RIGHT OF A HUSBAND

ISSUE3. WHETHER CLASSIFICATION OF RIGHT TO PROSECUTE A MAN ON

Memorial on the behalf of Respondent Page 2

PETITIONER APPROCHED FOR LEGAL REMEDY

Memorial on the behalf of Respondent Page 3

Memorial on the behalf of Respondent Page 4

ISSUE1. WHETHER THE PETITION FILED BY ANAND JEEVAN (NGO) IS

ISSUE2. WHETHER A MARRIAGE BRINGS WITH IT THE RIGHT OF A HUSBAND

ISSUE3. WHETHER CLASSIFICATION OF RIGHT TO PROSECUTE A MAN ON

Memorial on the behalf of Respondent Page 5

ISSUE1. WHETHER THE PETITION FILED BY ANAND JEEVAN (NGO) IS

ISSUE2. WHETHER A MARRIAGE BRINGS WITH IT THE RIGHT OF A HUSBAND

ISSUE3. WHETHER CLASSIFICATION OF RIGHT TO PROSECUTE A MAN ON

Memorial on the behalf of Respondent Page 6

Memorial on the behalf of Respondent Page 7

ISSUE2. WHETHER A MARRIAGE BRINGS WITH IT THE RIGHT OF A HUSBAND

Memorial on the behalf of Respondent Page 8

II.1. Historical Background of Marital Rape in Customary Laws.

Memorial on the behalf of Respondent Page 9

Memorial on the behalf of Respondent Page 10

Furthermore In case of Commonwealth v. Chretien in Massachusetts11 (1981) stated that,

Memorial on the behalf of Respondent Page 11

Memorial on the behalf of Respondent Page 12

Memorial on the behalf of Respondent Page 13

Memorial on the behalf of Respondent Page 14

ISSUE3. WHETHER CLASSIFICATION OF RIGHT TO PROSECUTE A MAN ON

Memorial on the behalf of Respondent Page 15

III.2. Intelligible differentia or reasonable classification under article 14 of the

Memorial on the behalf of Respondent Page 16

Memorial on the behalf of Respondent Page 17

Memorial on the behalf of Respondent Page 18

Memorial on the behalf of Respondent Page 19

Memorial on the behalf of Respondent Page 20

IV.1. ALTERNATIVE REMEDIES

Memorial on the behalf of Respondent Page 21

Memorial on the behalf of Respondent Page 22

IV.2. OVERBURDEN ON MIRANCHI JUDICIARY

Memorial on the behalf of Respondent Page 23

Memorial on the behalf of Respondent Page 24

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