(AFFILIATED to C.C.

S University Meerut & APPROVED BY BAR COUNSIL OF INDIA, NEW DELHI)

L.L.B III YEAR (6th SEM)

Submitted By:

MANJU BALA

S/O SH. PALTOO RAM

ROLL NO:

ENROLL NO - 19158447
 TC-22

2ND MOOT COURT COMPETITION 2022

BEFORE
THE HONOURABLE SUPREME COURT OF INDIA

WRIT PETITION ______/2022

IN THE MATTER OF ARTICLE 14, 15, 19 AND 21 OF CONSTITUTION OF

INDIA

ARTICLE 32 REMEDIES FOR ENFORCEMENT OF RIGHTS CONFERRED BY

PART 3 OF CONSTITUTION

ARTICLE 39A EQUAL JUSTICE AND FREE LEGAL AID

PROTECTION OF HUMAN RIGHTS ACT, 1993.

RIT FOUNDATION AND OTHERS……. PETITIONER

VS.

UNION OF INDIA & OTHERS……. RESPONDENT

UPON SUBMISSION TO THE HONOURABLE JUDGES OF THE SUPREME

COURT OF INDIA FOR MARTIAL RAPE TO BE CRIMINALIZED

___________________________________________________________
MEMORANDUM ON BEHALF OF THE PETITIONERS
___________________________________________________________
 TABLE OF CONTENTS

CONTENTS

INDEX OF AUTHORITIES ....................................................................................................... 2

STATEMENT OF JURISDICTION ............................................................................................ 4

STATEMENT OF FACTS ........................................ ................................................................6

STATEMENT OF ISSUES …...................................................................................................... 8

SUMMARY OF ARGUMENTS . ............................................................................................... 9

ARGUMENTS ADVANCED ,,.................................................................................................. 11

ISSUE 1: Whether the PIL is maintainable or not? ............................................................... 11

ISSUE 2: Whether marital rape should be criminalized? ...................................................... 12

ISSUE 3: Whether marital rape is a violation of Article 21? PRAYER .....................................14

PRAYER……………………………………………………………………………………………………………………….…….15
 INDEX OF AUTHORITIES

A. CASES

Naz Foundation v. Government of Delhi, WP(C) No. 7455/2001 (Delhi

H.) (2009)

Koushal v. Naz Foundation, Civil Appeal No. 10972 (2013)

Justice K. S. Puttaswamy (Retd.) and Anr. vs Union of India and Ors, WP

(C) NO 494 OF 2012

National Legal Services Authority v. Union of India, WP (C) No. 400 of

2012

Navtej Singh Johar v Union of India, WP (Criminal) NO. 76 O F 2016)

B. BOOKS

Indian Penal Code - Prof.S. Mishra

Human Rights in India - Issues and Prospectively by Dr S Mehartaj

Begum

C. STATUTES

The Constitution of India ,1949 – Article 32,14,15,19,21,39A

The Protection of Human Rights Act, 1993 Section 12

The Indian Penal Code,1860 Section 354,377,376,

Vishaka Guidelines against Harassment at Workplace for Women

D. ONLINE DATABASES AND ARTICLES

1. Manupatra Online

2. SCC Online

3. Lexis Nexis Online

4. ncpcr.gov/

5. newstatesman/world-affairs/2008/05/h ijras-indian- changing-rights

6. lawyerscollective/vulnerable-communities/lgbt/section-377.html

7. lawyerscollective/updates/supreme-court-recognises-the-right-to-
determine-and-express-ones-gender-grants-legal-status-to-third-gender

8. indiatimes/news/sports/shameful-an-indian-athletes-uphi ll-fight-for-
dignity-235024

9. hindustantimes/india-news/supreme-court-says-gay-sex-illegal -govt-
hints-at-legislative-route/article1-1161395

10. delhihighcourt.nic/library/articles/l egal%20education/Ho

mosexuality%20in%20India%20-%20The%20invisible%20conflict

11. legalcrystal/act/37900/constitution -of-india-article-39a

 STATEMENT OF JURISDICTION

The Hon‟ble Supreme Court of India has the jurisdiction in this matter under Article
32, 14,15,19,21,39A of the Constitution of India which reads as follows:

Article32: Remedies for enforcement of rights conferred by this part.

(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) The right guaranteed by this article shall not be suspended

except as otherwise provided for by this Constitution.

Article14: Equality before law and equal protection of the law.

The State shall not deny to an y person equality before the law or the
equal protection of the laws within the territory of India. Prohibition of
discrimination on grounds of religion, race, caste, sex or place of birth.

Article15: Prohibition of discrimination on grounds of religion, race,

caste, sex or place of birth.
The State shall not discriminate against any citizen on grounds only of
religion, race, caste, sex, place of birth or any of them.

Article21: Protection of life and personal liberty.

No person shall be deprived of his life or personal liberty except

according to procedure established by law.

Article 39A: Equal justice and free legal aid

The State shall secure that the operation of the legal system promotes
justice, on a basis of equal opportunity, and shall, in partic ular, provide
free legal aid, by suitable legislation or schemes or in any other way, to
ensure that opportunities for securing justice are not denied to any citizen
by reason of economic or other disabilities.

The Protection of Human Rights Act, 1993

The Public Interest Litigation (PIL) respectfully concedes to the

jurisdiction of the Hon‟ble Supreme Court.
 STATEMENT OF FACTS

1. Payal and Mahesh, aged 25 and 28 respectively .Payal is an

upper- middle-class educated woman who fell in love with
an office colleague and married him in 2016. They had a
happy marriage for a few years, and then began to drift
apart. Their lives were consumed by everyday events —
children, school, work, sports — which meant they were
a typical married couple working on raising a family and
living a normal life. Looking for better opportunities in
2017, Payal tried in various competitions and qualified to
be Probationer Officer in government bank.

2. Mahesh was an alcoholic who used to have occasional

consumption. Due to pandemic reasons he lost his job in 2020.
After losing his job, he started drinking excessively. Since
Mahesh was not working, firstly he would ask her for money
for liquor, and then, if she refused it, he would forced himself
on her. That was the sequence, every day. He would never
pay heed to the feelings of Payal and this was something that
hurt her. When Payal tried to talk about this to her mother and
mother-in- law, both of them had the same view and stigma
that it is the duty of an Indian wife to fulfill the wishes of her
husband and sacred bond for at least seven lives.

3. Facing such issues on daily basis, Payal became a patient of

depression and met with a counselor Dr. Geeta Nagar. Dr.
Nagar has counseled thousands of Indian women. Many of
them are rape victims. But there's PayalandNaila ,
whosestoryhasstuckwithher .

4. That phase of Naila life ended with her divorce, but 35 -year-old
Naila will never be healed of what she went through during the nine
years of her marriage. Every time her husband approached, it was
 sheer torture. He
nevercaredaboutwhatshewantedorneeded.Ithastakenheryearstoevenbeabletotal
kaboutthis.Forthelongesttime,shewasexistinginazombie-
likestateofmind.Nailatriedtotalkto her family about
herplightmanyatimes,theythoughtsomethingwaswrongwith her.
Herfamilyusedtomakeherunderstandthatshehavetofulfilhisneeds.Hehasarightov
erher.Besides,herchildrenwillsuffer

5. 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 rap e. The
PIL also challenges the constitutional validity of Exception II to
Section 375 of the Indian Penal Code, 1
 STATEMENT OF ISSUES

ISSUE 1

WHETHER THE PIL IS MAINTAINABLE OR NOT?

ISSUE 2

WHETHER MARITAL RAPE SHOULD BE CRIMINALIZE?

ISSUE 3

WHETHER MARITAL RAPE IS A VIOLATION OF ARTICLE 21??

 SUMMARY OF ARGUMENTS

ISSUE 1

WHETHER THE PIL IS MAINTAINABLE OR NOT?

It is humbly request before the Supreme Court of India that the petition
filed by the petitioner is maintainable under Article 14,15, 21 of the
Constitution of the India.

Article14: Equality before law.

Article15: Prohibition of discrimination on grounds of religion, race,

caste, sex or place of birth.

Article21: Protection of life and personal liberty.

The Protection of Human Rights Act, 1993

ISSUE 2

WHETHER MARITAL RAPE SHOULD BE CRIMINALIZE?

It is humbly request before this Hon‟ble Court that:

ARTICLE 14- Equality before law and equal protection of law

It means that law must be equal to all person and if there is any
discrimination than it must be reasonable and rational and total autonomy
of husband over the body of wife is totally arbitrary, unreasonable and
violates the basic principle of Article 14

Article 15
Article 15 says that there must not be any discrimination on the ground of
sex and making the sexual relation against the consent of wife violates
the Article 15

Article 15 (3)

No laws can be against the women but explanation 2 of Article 375 mak e
it clear that Husband can not be punished for the offence of Rape.

Article 21

Everyone have the right to take a decision over their personal life and
body and making the sexual intercourse against the consent of wife is
against the Article 21 of Indian Constitution

In the Sakhi v. Union of India Supreme Court held that explanation (2)
of section 375 of Indian penal code should be deleted forced intercourse
by a husband with his wife should be treated equally as an offence just as
any physical violence by a husband against the wife is a treated as an
offence.

ISSUE 3

WHETHER MARITAL RAPE IS A VIOLATION OF ARTICLE 21??

It is humbly request before this Hon‟ble Court that

ARTICLE 21-

Everyone have the right to take a decision over their personal life and
body and making the sexual intercourse against the consent of wife is
against the Article 21 of Indian Constitution In the Sakhi v. Union of
India Supreme Court held that explanation (2) of section 375 of Indian
penal code should be deleted forced intercou rse by a husband with his
wife should be treated equally as an offence just as any physical violence
by a husband against the wife is a treated as an offence.
 ARGUMENTS ADVANCED

ISSUE 1 : WHETHER THE PIL IS MAINTAINABLE OR NOT?

The Hon ble Supreme Court of India has the jurisdiction in this matter
under Article 32,14,15,19,21 of the Constitution of India, The Protection
of Human Rights Act, 1993 which reads as follows:

Article 32 of CONSTITUTION OF INDIA Remedies for enforcement of

rights conferred by this Part-

(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 whichever may be appropriate, for the enforcement
of any of the rights conferred by this Part.”

Article14: Equality before law

(1) The natural identity of an individual should be treated to be

absolutely essential to hisbeing. What nature gives is natural. That is
called nature within. Thus, that part of thepersonality of a person has to
be respected and not despised or looked down upon.

(2) Destruction of individual identity would tantamount to crushing

of intrinsic dignitythat cumulatively encapsulates the values of privacy,
choice, freedom of speech andother expressions. It can be viewed from
another angle. An individual in exercise of his choice may feel that
he/she should be left alone but no one, and we mean, no one, should
impose solitude on him/her.

(3) The eminence of identity has been luculently stated in National

Legal Services Authority v. Union of India and others popularly 1 (2014)
5 SCC 438 7 known as NALSA case, wherein the Court was dwelling
upon the status of identity.
Article 39A: Equal justice and free legal aid

(4) The State shall secure that the operation of the legal system
promotes justice, on a basis of equal opportunity, and shall, in
particular, provide free legal aid, by suitable legislation or schemes or in
any other way, to ensure that opportunities for securing justice are not
denied to any citizen by reason of economic or other disabilities

(5) The Protection of Human Rights Act,

(6) The Public Interest Litigation (PIL) respectfully concedes to the

jurisdiction of the Hon‟ble Supreme Court.

ISSUE 2 WHETHER MARITAL RAPE SHOULD BE CRIMINALIZE?

The Hon‟ble Supreme Court of India ,

1. What is marital rape?

 Marital rape can be defined as sexual intercourse with one‟s spouse

without his/her free consent. So what‟s the difference between rape and
marital rape? Just one. Marital rape is done under the defense “she is my
wife”. Section 375 of the Indian Penal Co de (hereinafter, IPC) defines
“rape” as sexual intercourse without the victim‟s free consent. But the
exception 2 mentions, “Sexual intercourse by a man with his own wife,
the wife not being under fifteen years of age, is not rape”.  The law
itself gives the man to have defense in the name of marriage. A girl when
raped without marriage is criminalized, and the same thing when happens
to her by her own legally wedded spouse, it‟s not an offense? Rape is
rape, be it by someone stranger, by someone familiar or be it by her own
spouse.  It‟s also important to note that some people don't think any of
these labels describe them accurately. Some people don't like the idea of
labels at all. Other people feel comfortable with certain labels and not
others. It's up to you to decide how you want to label yourself, if at all.
SEXUAL ORIENTATION

1. Sexual orientation is about who you‟re attracted to and want to

have relationships with. Sexual orientations include gay, lesbian,
straight, bisexual, and asexual.

2. This means that being transgender (feeling like your assigned sex
is very different from the gender you identify with) isn‟t the same
thing as being gay, lesbian, or bisexual. Sexual orientation is about
who you want to be with.

International law and marital Rape

In December 1993 the United State nations High commissioner for human
right published the declaration on the elimination of violence against
women. This establishes marital Rape as a human right violation. In 1997
UNICEF reported that just 17 states had crim inalized marital Rape In
2003 UNIFEM reported that more than 50 states did so. The countries
like Poland Soviet Union were first to criminalized marital Rape.

Conclusion:
Now after the above fact marital Rape is totally morally, legally, wrong.
It is very sad thatmarital Rape is existed in India a disgraceful
offence that has scared the trust andconfidence in the institution of
marriage.
Now time has come to criminalized a marital rape Indian parliament
should make a law forpreventing the case of marital and it must be
criminalized it is a demand of time and ifparliament don't make law for
preventing sexual harassment by husband against the wifethan
Supreme Court make declared the section 375 of IPC with the help of
Article 13 ( powerof judicial review ) because it is totally arbitrary,
discriminatory and against the women's right.
Violation of Article 21 Protection of life & personal liberty.
Article 15
Article 15 says that there must not be any discrimination on the ground of
sex and makingthe sexual relation against the consent of wife violates the
Article 15
Article 15 (3).
No laws can be against the women but explanation 2 of Article
375 make it clear thatHusband cannot be punished for the offence of
Rape.

ISSUE 3: WHETHER MARITAL RAPE IS A VIOLATION OF

ARTICLE 21??

The Hon ble‟ Supreme Court of India it is justifiable as it

Article 21 of the Indian constitution enshrines in it the right to life and

personal liberty. Article 21 although couched in negative language
confers on all persons the fundamental right to life and personal liberty.

Post the case of Maneka Gandhi v Union of India it has become the
source of all forms of right aimed at protection of human life and liberty.
The meaning of the term „life‟ has thus expanded and can be
appropriately summed up in the words of Field J. in Munn v Illinois
where he held that life means „something more than a mere animal
existence‟, which was further in Bandhua Mukthi Morcha v. Union of
India where the SC affirmed that right to live with human dignity.
15Independent Thought v. Union of India. 2013 16Independent thought v.
Union of India ,2013 Legal Education in Contemporary Era – 2018 ISBN:
978-93-5187-924-4 In light of this expanding jurisprudence of article 21,
the doctrine of marital exemption to rape violates a host of rights that
have emerged from the expression „right to life and persona l liberty‟
under Article 21
.The marital exemption to rape the right to privacy, right to bodily self -
determination and the right to good health, all of which have been
recognized as an integral part of the right to life and personal liberty at
various points of time. The concept of right to life under article 21 of the
constitution includes the right to live with human dignity and all that
goes along with it. The right to live with human dignity is one of the most
inherent qualities of the right to life wh ich recognizes the autonomy of an
individual.

The SC has held in a catena of cases that the offence of rape violates the
right to life and the right to live with human dignity of the victim of the
crime of rape, that it is not merely an offence under the IPC, but is a
crime against the entire society. Rape is less of a sexual offence than an
act of aggression aimed at degrading and humiliating the women. Thus,
the marital exemption doctrine is also vocative of a woman‟s right to live
with human dignity. Any law which legitimizes the right of a husband to
compel the wife into having sexual.

intercourse against her will and without her consent goes against the very
essence of right to life under article 21. Though the constitution does not
expressly recognize the right of bodily self-determination, such a right
exists in the larger framework of the right to life and personal liberty
under article 21.

The right of self-determination is based on belief that the individual is

the ultimate decision maker in matters closely associated with his/her
body or well-being and the more intimate the choice, the more robust is
the right of the individuals to be the authors of their own fate. Consent to
sex is one of the most intimate and personal choice that a woman reserves
from herself. It is a form of self -expression and self-determination and a
law that makes away the right of expressing and revoking such consent
deprives a person the constitutional right of bodily self -determination.
The marital rape exemption violates th e right to good health of the victim
of such a crime. The right to good health has been recognized as a part of
the right to life under the article 21. Such a right is necessary for the
continuous intellectual and spiritual well -being of a person. The marital
exemption doctrine violates to right to good health of a victim as it
inevitably cause serious psychological as well as physical harm in the
process. It destroys the psychology of a women and pushes her into a
deep emotional crisis. A more compelling a rgument can be made in case
where forceful sexual intercourse in a marriage leads to the Legal
Education in Contemporary Era – 2018 ISBN: 978-93-5187-924-
communication of a sexually transmitted disease to the victim of a crime
of rape. The marital excepti on effectively deprives a married women of
her right to good health. In a series of cases the SC has recognized that a
right to privacy is constitutionally protected under Article 21 of the
Indian Constitution.

Justice K. S Puttaswamy and Anr. v. Union of India and Ors is a

landmark judgment of the Supreme Court of India, which holds that the
right to privacy is protected as a fundamental constitutional right under
Articles 14, 19 and 21 of the Constitution of India The right to privacy
under Article 21 includes a right to be left alone. Any form of forceful
sexual intercourse violates the right of privacy. The exemption to marital
rape violates a married woman‟s right to privacy by forcing her to enter
into a sexual relation against her wish. The Supreme Co urt in the case of
State of Maharashtra v. Madhukar Narayan18 has held that every
woman was entitled to sexual privacy and it was not open for any person
to violate her privacy as an when he wished or pleased.

In the case of Vishaka v State of Rajasthan19 , the Supreme Court

extended this right to privacy in workplaces. Further, along the same line,
there exists a right to privacy to enter into a sexual relationship even
within a marriage. By decriminalizing rape within a marriage, the marital
rape exemption violates the right to privacy of a married women
 PRAYER

Wherefore in light of the issues raised, arguments advanced and

authorities cited, this

Hon‟ble Supreme Court may be pleased to:

1) DECLARE that the public interest litigation (PIL) addressing

issue 1 , Article 32,21 , 14 , 15 of the COI and under,The
Protection of Human Rights Act, 1993 to the Supreme Court is
maintainable;

2) DECLARE marital rape should be as crime.

3) DECLARE & CONSIDER : marital rape is a vi olation of Article 21.

And for this act of kindness the Counsels on behalf of the

Petitioners, shall duty bound forever humbly pray.

(COUNSELS ON BEHALF OF THE

PETITIONERS)
 TC-22

TC-22
ND
2 MOOT COURT COMPETITION 2022

2ND MOOT COURT COMPETITION 2022

BEFORE
THE HONOURABLE SUPREME COURT OF INDIA
BEFORE
THE HONOURABLE SUPREME COURT OF INDIA
WRIT PETITION ______/2022

IN THE MATTER OF ARTICLE 14, 15, 19 AND 21 OF CONSTITUTION OF INDIA

WRIT PETITION ______/2022
ARTICLE 32 REMEDIES FOR ENFORCEMENT OF RIGHTS CONFERRED BY
IN THE MATTER OF ARTICLE 14, 15, 19 AND 21 OF CONSTITUTION OF INDIA
PART 3 OF CONSTITUTION
ARTICLE 32 REMEDIES FOR ENFORCEMENT OF RIGHTS CONFERRED BY PART 3 OF CONSTITUTION
ARTICLE 39A EQUAL JUSTICE AND FREE LEGAL AID
ARTICLE 39A EQUAL JUSTICE AND FREE LEGAL AID
PROTECTION OF HUMAN RIGHTS ACT, 1993.
PROTECTION OF HUMAN RIGHTS ACT, 1993.

RIT FOUNDATION AND OTHERS ……. PETITIONER

RIT FOUNDATION AND OTHERS ……. PETITIONER
VS.
VS.
UNION OF INDIA & OTHERS ……. RESPONDENT
UNION OF INDIA & OTHERS ……. RESPONDENT

WRITTEN SUBMISSION TO THE HONOURABLE JUDGES OF THE SUPREME

WRITTEN SUBMISSION TO THE HONOURABLE
COURT JUDGESOF
OF INDIA ON BEHALF OFRESPONDENT
THE SUPREME COURT OF INDIA ON
BEHALF OF RESPONDENT
___________________________________________________________
MEMORANDUM ON BEHALF OF THE RESPONDENTS
___________________________________________________________
___________________________________________________________
MEMORANDUM ON BEHALF OF THE RESPONDENTS
___________________________________________________________
 TABLE OF CONTENTS

CONTENTS

INDEX OF AUTHORITIES ....................................................................................................... 3

STATEMENT OF JURISDICTION ............................................................................................4

STATEMENT OF FACTS ........................................ ................................................................5

STATEMENT OF ISSUES …...................................................................................................... 7

SUMMARY OF ARGUMENTS . ............................................................................................... 8

ARGUMENTS ADVANCED ,,.................................................................................................. 10

PRAYERS…………………………………………………………………………………………………………………………..13
 INDEX OF AUTHORITIES

A. CASES

1.1 Independent Thought Vs. Union of IndiaandAnr(2017)

1,2NimeshbhaiBharatbhai Desai Vs, State Of Gujrat (2018)

1,3 The Chairman Railway Board &Ors Vs. Mrs. Chandrima Das &Ors
January 2000

B. 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
 STATEMENT OF JURISDICTION

1.Union of India and Mahesh , 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 India and Mahesh 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 in

certain cases

1. An appeal shall lie to the Supreme Court from any judgment, decree or
final

order 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
 STATEMENT OF FACTS

1. Payal and Mahesh, aged 25 and 28 respectively .Payal is an

upper- middle-class educated woman who fell in love with an
office colleague and married him in 2016. They had a happy
marriage for a few years, and then began to drift apart.
Their lives were consumed by everyday events — children,
school, work, sports — which meant they were a typical
married couple working on raising a family and living a
normal life. Looking for better opportunities in 2017, Payal
tried in various competitions and qualified to be Probationer
Officer in government bank.

2. Mahesh was an alcoholic who used to have occasional

consumption. Due to pandemic reasons he lost his job in 2020.
After losing his job, he started drinking excessively. Since Mahesh
was not working, firstly he would ask her for money for liquor , and
then, if she refused it, he would forced himself on her. That was
the sequence, every day. He would never pay heed to the feelings
of Payal and this was something that hurt her. When Payal tried to
talk about this to her mother and mother -in- law, both of them had
the same view and stigma that it is the duty of an Indian wife to
fulfill the wishes of her husband and sacred bond for at least seven
lives.

3. Facing such issues on daily basis, Payal became a patient of

depression and met with a counselor Dr.Geeta Nagar. Dr. Nagar
has counseled thousands of Indian women. Many of them are rape
victims. But there's PayalandNaila , whosestoryhasstuckwithher .
4. That phase of Naila life ended with her divorce, but 35 -year-old Naila
will never be healed of what she went through during the nine years of
her marriage. Every time her husband approached, it was sheer torture.
He
nevercaredaboutwhatshewantedorneeded.Ithastakenheryearstoevenbeabletotalkabo
utthis.Forthelongesttime,shewasexistinginazombie-
likestateofmind.Nailatriedtotalkto her family about
herplightmanyatimes,theythoughtsomethingwaswrongwith her.
Herfamilyusedtomakeherunderstandthatshehavetofulfilhisneeds.Hehasarightoverhe
r.Besides,herchildrenwillsuffer

5. 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, 1
 STATEMENT OF ISSUES

ISSUE 1

WHETHER THE PIL IS MAINTAINABLE OR NOT?

ISSUE 2

WHETHER MARITAL RAPE SHOULD BE CRIMINALIZE?

ISSUE 3

WHETHER MARITAL RAPE IS A VIOLATION OF ARTICLE 21??

 SUMMARY OF ARGUMENTS

ISSUE 1

WHETHER THE PIL IS MAINTAINABLE OR NOT?

1. The Petitioners society does not have a locus standito file the petition as
Mahesh followed all the norms of Hindu Marriage Act 1955

2. There is exception 2 to Section 375 of of Indian Penal Code 1986

(Exception)

—Sexual intercourse by a man with his own wife, the wife not being under

fifteen 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, religious

beliefs,mindset of the society to treat the marriage as a sacrament, etc,”

2. If marital rape was made a crime, the entire family system India would

come under great stress

ISSUE 3

WHETHER MARITAL RAPE IS A VIOLATION OF ARTICLE 21??

It is humbly request before this Hon’ble Court that

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’. 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. 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
 ARGUMENTS ADVANCED

ISSUE 1 : WHETHER THE PIL IS MAINTAINABLE OR NOT?

1. The Petitioners society does not have a locus standito file the petition as
Mahesh followed all the norms of Hindu Marriage Act 1955

2. There is exception 2 to Section 375 of of Indian Penal Code 1986

(Exception)

—Sexual intercourse by a man with his own wife, the wife not being under

fifteen years of age, is not rape.]

3.1There is already exist special provision for women protection unde r

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 marital

rape for child girl.

ISSUE 2 WHETHER MARITAL RAPE SHOULD BE CRIMINALIZE?

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, religious
beliefs, mindset of the society to treat the marriage as a sacrament, etc,”

1. if marital rape was made a crime, the entire Indian family system would

come under great stress.

2. If marital rape criminalized than Appro x all the married men of country
will 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 andAnr
(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 18 years of age.

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 .
 PRAYERS

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

2. Marital rape should not be criminalized as it will entire Indian family system would
come under great stress.

3. Declare that there is no violation of the fundamental right of Article 21 of C.O.I

COUNSEL FOR RESPONDENT