8th RGNUL National Moot, 2019

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Page 1 Wednesday, April 03, 2024

Printed For: Kavyanjali Singh, University of Lucknow
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© 2024 EBC Publishing Pvt. Ltd., Lucknow.
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8th RGNUL National Moot, 2019

Best Team Memorial - Applicant
BEFORE THE HONOURABLE SUPREME COURT OF INDIA

(FILED UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA, 1950)
WRIT PETITION NO._____/2019
Society for Women's Welfare . . Appellant;
Versus
Union of India . . Respondent.
MOST RESPECTFULLY SUBMITTED TO THE HONOURABLE JUSTICES OF SUPREME
COURT OF INDIA
SUBMISSIONS ON BEHLAF OF THE PETITIONER
TABLE OF CONTENTS
STATEMENT OF JURISDICTION D
STATEMENT OF FACTS E
ISSUES RAISED G
ARGUMENTS ADVANCED 1
1. THE PUBLIC INTEREST LITIGATION (PIL) FILED IN THE INSTANT 1
CASE IS MAINTAINABLE BEFORE THE HON'BLE SUPREME COURT OF
INDIA.
1.1. The Supreme Court has the Power of Judicial Review Implicit 1
under its Writ Jurisdiction
1.2. The Petitioner Society for Women's Right has the Locus Standi 2
1.3. There has been a Gross Violation of Fundamental Rights in 3
the Present Case
2. THAT EXCEPTION II OF SECTION 375 VIOLATES ARTICLE 14 OF THE 4
CONSTITUTION OF INDIA
2.1. Exception II of Section 375 is based on Unreasonable 4
Classification of Married and Unmarried Woman.
3. EXCEPTION II OF SECTION 375 VIOLATES ARTICLE 21 OF THE 5
CONSTITUTION OF INDIA
3.1. That Various Aspects of Right to Life and Personal Liberty are 5
Infringed.
3.1.1. That Right to Privacy of the Wife is Infringed 6
3.1.2. Exception II Violates the Right to Reproductive Choice of 6
Married Women
PRAYER H
STATEMENT OF JURISDICTION
The Petitioner humbly submits to the jurisdiction of the Hon'ble Supreme Court of
India in pursuance of Article 32 of the Constitution of India on account of violation of
Fundamental Rights of an entire class of women whose interests are being represented
by the Petitioner.
Article 32 of the Constitution:
“32. Right to Constitutional Remedies—
(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,
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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.”
STATEMENT OF FACTS
BACKGROUND
1. Nidhi and Subodh, aged 22 and 24 respectively, are two working professionals in
the city of Patiala. They have been live-in partners since 2017 and love each other.
Their parents were against them marrying each other but however, they managed to
convince their parents and got married as per the Hindu rituals and customs, in
December 2018.
CONSTANT COMPANION AT ANY COST
2. After their marriage, the relationship took a toll and it wasn't the same as it had
been prior to the marriage. The primary reason according to Nidhi was Subodh's more
dominating figure. He would now demand intercourse as if it were a matter of right
rather than it being an act of two consenting adults. He would never pay heed to the
feelings of Nidhi and this was something that hurt her. She tried to talk to her mother
and mother-in-law about this, but both of them had the same view that it is the duty
of an Indian wife to fulfill the wishes of her husband and be a constant companion to
him at any cost.
THE DEBATE ON MARITAL RAPE
3. One day, Nidhi was watching a debate show on television on the topic of marital
rape. A few of the panelists strongly condemned Exception II of Section 375 of the
Indian Penal Code, 1860. They argued that it was based on the archaic concepts where
the wife was considered as possession and property of the husband. Further, they
argued that marital rape also violated human rights and various rights of women
under Article 21 of the constitution and demanded that there should not be any
distinction between rape within and outside the marriage.
4. On the other hand, the other panelists argued that Exception II of Section 375
had been inserted to preserve the institution of marriage and criminalization of sexual
intercourse between spouses had potential to wreak havoc on the society. Further,
they argued that the Indian law delivers proper protection to women rights and the
Legislature is well aware of the situation and demands of the Indian society.
5. Nidhi was deeply moved by the debate and finally decided to fight for her rights
and what she thought was a blatant injustice against her persona.
THE SOCIETY FOR WOMEN'S RIGHTS
6. Society for Women's Rights (hereinafter SWR) is an NGO that works for the
development and welfare of women. It is an organization that has previously helped to
bring in women-centric laws by rallying for classification and enactment of women
rights via legislations and judicial intervention. Nidhi approached SWR and narrated
her grief to their activists. The members of the NGO decided to approach the court for
seeking to eradicate the social plague of marital rape.
THE PROCEEDINGS
7. A Public Interest Litigation was filed by the NGO before the Hon'ble Supreme
Court of India with respect to the violation of fundamental rights of married women of
all ages in the form of marital rape. The PIL also challenges the constitutional validity
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of Exception II of Section 375 of the Indian Penal Code, 1860.

ISSUES RAISED
-I-
Whether the Present Public Interest Litigation is Maintainable?
-II-
Whether Exception II of Section 375 of the Indian Penal Code, 1860 Violates Article 14
of the Constitution of India?
-III-
Whether Exception II of Section 375 of the Indian Penal Code, 1860 Violates Article 21
of the Constitution of India?
ARGUMENTS ADVANCED
1. THE PUBLIC INTEREST LITIGATION (PIL) FILED IN THE INSTANT CASE IS
MAINTAINABLE BEFORE THE HON'BLE SUPREME COURT OF INDIA.
The present issue pertains to the validity of the Public Interest Litigation (PIL) filed
under Article 32 of the Constitution of India. The Supreme Court has the power of
judicial review implicit under its writ jurisdiction (A). The Petitioner Society for
Women's Right has the locus standi to maintain an action for writ petition as it is
public spirited non-governmental organization having bonafide interest in protecting
the rights of women (B). There has been a gross violation of Fundamental Rights of
married women of all ages and therefore it is an expressed matter of public
importance.(C)
1.1. The Supreme Court has the Power of Judicial Review Implicit under its
Writ Jurisdiction.
The Constitution expressly confers upon the Supreme Court the power of Judicial
review under Art. 321 . It has the exclusive power of judicial review to resolve disputes
regarding the limits of constitutional power as an ultimate interpreter of the
Constitution.2
The apex Court is the ultimate interpreter of the Constitution.3 Presumption of
constitutionality is a burden which the pre constitutional laws should fulfill and thus
can be challenged before the guardian of the constitution.4 The court is empowered
under Article 13 to strike down any law which is inconsistent with the Fundamental
Rights contained under Part III of the Constitution.5
Exception II of Section 375 is a pre constitutional legal position and by virtue of the
change in the social fiber of the nation, the same needs to be tested under the garb of
the expanding purview of Article 21 of the Constitution6 .
Thus, the Court possesses the power of Judicial review to adjudicate under its writ
jurisdiction any matter involving a substantial question of law.
1.2. The Petitioner Society for Women's Right has the Locus Standi
In the present case, the petitioner, Society for Women's Rights, is a public-spirited
nongovernmental organization [hereinafter ‘NGO’], which has actively worked for the
development and welfare of women. 15 Further, it has previously helped in bringing
women centric laws by rallying for classification and enactment of women rights via
legislation and judicial intervention.7
The term locus standi refers to the right of being heard and the ability to institute a
proceeding or bring into an action before the court of law.8 10 Any member of public or
any public-spirited organizationhaving a bona fide and sufficient public interest will
have locus standi to maintain an action for writ petition under Art. 32 as PIL.9
A matter under PIL is in the interest of public when there is gross violation of
fundamental rights18 of a group or a class of people.10
It is submitted that the petition which is filed to eradicate the social plague of
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marital rape and protection of fundamental rights of married women is concerning a

matter of public importance. There is a gross violation of the dignity of the married
women which forms the antecedent of the right to dignity.11
The concept of dignity under the Indian Constitution is significant any form of
violence against women is violation of the fundamental right to live with human
dignified life. State has primary duty to protect the right to live with human dignity as
fundamental rights of each citizen. Human Dignity also treated as honour and status of
the individual. It can be said that dignity can be ensured when every member of the
society has a feeling that he or she is a respectable member and no one can humiliate,
harass, exploit and insult him or her on the basis of caste, creed, sex and stats etc.12
Therefore, the NGO in the instant case holds the locus to challenge Section 375 of
the Indian Penal Code since it poses a violation of the right to human dignity and
privacy which are a inherent part of part III of the Constitution.
1.3. There has been a Gross Violation of Fundamental Rights in the Present
Case
When the constitutionality of a law is challenged on the ground that it infringes a
fundamental right, what the Court has to consider is the ‘direct and inevitable effect’
of such law, referred to as the ‘test of direct and inevitable consequence.13
Exception II of Section 375 is violative of Article 14 and 15 of the Constitution-
Equality of treatment under Article 14 is an objective test, the basic principle being
that law must operate equally on all persons under like circumstances. By judicial
decisions, the doctrine of classification is read into Article 14 and Article 15(314 ).9 This
doctrine has been described as a “subsidiary rule” evolved by courts to give practical
content to the said Article. The “positive” aspect of Article 14 is that if an action is
found to be arbitrary and, therefore, unreasonable, it would negate the equal
protection of law contained in Article 14 and would be struck down on this ground.15
Hence, The Present PIL Should be Maintainable.
2. THAT EXCEPTION II OF SECTION 375 VIOLATES ARTICLE 14 OF THE CONSTITUTION
OF INDIA
It is reverently submitted before the Hon'ble SC that exception 2 of section 375 of
IPC which states that Sexual intercourse by a man with his own wife, the wife not
being under eighteen years of age16 , is not rape, is violative to equality enshrined in
Art. 14 as there is no intelligible differentia in the classification. Thus, it is arbitrary in
nature.
The expression ‘arbitrarily’ means in an unreasonable manner, as fixed or done
capriciously or at pleasure, without adequate determining principle, not founded in the
nature of things, non-rational, not done or acting according to reason or judgment,
depending on the will alone.17
2.1. Exception II of Section 375 is based on Unreasonable Classification of
Married and Unmarried Woman.
Reasonable classification is such classification which is based upon some real and
substantial distinction bearing a reasonable and just relation to the object sought to
be attained, and the classification cannot be made arbitrarily and without any
substantial basis.18 The right to equality is violated when there are other similarly
situated who could have been prosecuted for the offenses for which respondents were
charged, but were not so prosecuted.19
In the instant case, the differentia in the instant case firstly renders married women
unequal and vulnerable in comparison to unmarried women and secondly to married
women of ages 15 years or below. Such a differentia is impermissible and in violation
of Art. 14 as all persons in similar circumstances must be treated alike in privileges
and liabilities imposed.
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Hence, Exception II Violates Article 14 of the Constitution.

3. EXCEPTION II OF SECTION 375 VIOLATES ARTICLE 21 OF THE CONSTITUTION OF
INDIA
It is humbly submitted before this Hon'ble Supreme Court that Exception II of §
375 IPC is violative of rights vested under Article 2138 which is the basic structure of
the Constitution. Marital rape is a crime against basic human rights and is also
violative of the victim's most cherished of the Fundamental Rights, namely, the Rights
to Life and Personal liberty.
3.1. That Various Aspects of Right to Life and Personal Liberty are Infringed.
It is reverently submitted before the Hon'ble SC that under Art. 21 of the
Constitution of India, right to life with dignity is a recognized fundamental right and it
is also a basic human right inherent in human existence which is not the gift of any
law
By depriving married women of an effective penal remedy against forced sexual
intercourse violates various aspects of Article 21 like Right to live with human dignity,
bodily self-determination, health and privacy. In the Maneka Gandhi20 case the
judiciary gave a new dimension to Article 21 and held that “Right to life is not only
limited to mere physical existence, but it includes within its ambit the right to live
with human dignity”, which involves consensual sexual relations which see women par
with men, capable of making her own reproductive choices.21
3.1.1. That Right to Privacy of the Wife is Infringed
The right to privacy is a fundamental right,22 emanating from the right to life and
personal liberty guaranteed under Art. 21 of the Indian constitution. The fundamental
right to privacy guarantees an individual the right to retain the integrity of body,
which encompasses an individual's inalienable right to preserve his private space and
be free from physical interference. Further, it encompasses the right to self-
determination23 which includes the right to sexual self-determination and sexual
autonomy that is the freedom to choose sexual activities.
A person can surrender his/her autonomy willfully to another individual112 and
their intimacy is a matter of their choice.24 It is an individual's inalienable right to
choose their sexual partner and the autonomy to decide freely when and under what
circumstances, he/she wishes to engage in sexual activity.
3.1.2. Exception II Violates the Right to Reproductive Choice of Married Women
The right to make reproductive choice is a fundamental right guaranteed under Art.
21.25 The right to reproductive choice preserves the freedom of the married women to
make decisions primarily consisting of one's sexual and procreative nature.26 It is
submitted that Exception II to §. 375 violates married women's right to reproductive
choice because, first, Exception II violates the right of married women to abstain from
participating in sexual activity; and secondly, Exception II violates the right to
decisional autonomy of married women.
Hence, Exception II Violates Article 21 of the Constitution.
PRAYER
WHEREFORE, IN THE LIGHTS OF THE FACTS STATED, ARGUMENTS ADVANCED AND AUTHORITIES
CITED, IT IS MOST HUMBLY PRAYED AND IMPLORED BEFORE THE HON' BLE S UPREME COURT OF
I NDIA, THAT IT MAY BE GRACIOUSLY PLEASED TO ADJUDGE AND DECLARE THAT
I The Writ Petition is Maintainable before the Hon'ble Supreme Court.
II Exception II to § 375, The Indian Penal Code, 1860 violates the fundamental
rights of married women.
III Exception II to § 375, The Indian Penal Code, 1860 is unconstitutional.
Also, pass any order that the Hon'ble Court may deem fit in the favor of THE
PETITIONER to meet the ends of equity, justice and good conscience.
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For this act of Kindness, The Petitioner shall duty bound forever pray.
1 Rameshwar Prasad v. nion of India, (2006) 2 SCC 1 (India); Laxmi Shankar Prasad v. Union of India, (1991) 2
SCC 488 (India); S.S. Bola v. B.D. Sardana, (1997) 8 SCC 522 (India); Jyotendrasinjhi v. S.I. Tripathi, 1993 Supp
(3) SCC 389 : AIR 1993 SC 1991 (India).
2
Gulabbhai Vallabbhai Desai v. Union of India, (1967) 1 SCR 602 (India); Fazru v. State of Haryana, A.I.R. 1998
P.& H. 133 (India); Law Commission of India Report No. 215, L. Chandra Kumar be revisited by Larger Bench of
Supreme Court, (March 13, 2019, 03:43 AM), http://lawcommissionofindia.nic.in/reports/report215.pdf.
3 M.P. JAIN, INDIAN CONSTITUTIONAL LAW 1408 (8th ed. 2018); State of West Bengal v. Comm. for Prot. of
Democratic Rts., (2010) 3 SCC 571 (India); I.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1 (India); Nar
Singh v. State of Uttar Pradesh, (1955) 1 SCR 238 (India).
4
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 (India) [hereinafter Navtej]; see also New Delhi Mun.
Council v. State of Punjab, (1997) 7 SCC 339 (India).
5
1 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 689 (8th ed. 2007).
6 Common Cause v. Union of India, (1999) 6 SCC 667 (India)
7
Moot Proposition para. 4.
8
BLACK 'S LAW DICTIONARY 1084 (10th ed. 2015).
9Ashok Kumar Pandey v. State of West Bengal, (2004) 3 SCC 349 (India); Nepal Sarkar v. State of West Bengal,
1993 SCC OnLine Cal 84 (India); R. Lakshmipati v. S. Ramalingam, 1998 SCC OnLine Mad 427 (India).
10 1 ARVIND P. DATAR , COMMENTARY ON THE CONSTITUTION OF INDIA 542 (2nd ed. 2007).
11
Naz Foundation v. Government of NCT w.p. (c) 7455, 2001
12 Dr. N.K. Chakrabrti, Dr. Shachi Chakrabrti, “Gender Justice” vol. II, first Edition 2006, pub, R. Cambray and Co.
Private Ltd, Kolkata, P. 339
13Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : AIR 1978 SC 597; (1978) 1 SCC 248; Indian Hotel and
Restaurant Association (AHAR). State of Maharashtra, 2019 SCC OnLine SC 41.
14
M. Nagaraj v. Union of India, (2006) 8 SCC 212
15
Shayara Bano v. Union of India, (2017) 9 SCC 1
16 Independent Thought v. Union of India, W.P. (C) 8763 of 2015.
17
Sharma Transport v. Government of A.P, (1997) 2 SCC 453.
18 Shiv Bahadur Singh Rao v. State of Vindhya Pradesh, A.I.R. (1953) S.C. 394.
19 In re: special courts bill v. Unknown, (1979) 1 SCC 380.
20
Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : 1978 A.I.R 597.
21 Suchita Srivastava v. Chandigarh Administration, (2010) 6 SCC 1 : A.I.R 2010 S.C. 235.
22 Puttaswamy
23
Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454.
24 Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
25 Z v. State of Bihar, (2018) 11 SCC 572.
26
Suchitra Srivastava v. Chandigarh Admin., (2009) 9 SCC 1.
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SCC Online Web Edition, © 2024 EBC Publishing Pvt. Ltd.

Page 1 Wednesday, April 03, 2024

8th RGNUL National Moot, 2019

BEFORE THE HONOURABLE SUPREME COURT OF INDIA

including writs in the nature of habeas corpus, mandamus, prohibition, quo

of Exception II of Section 375 of the Indian Penal Code, 1860.

marital rape and protection of fundamental rights of married women is concerning a

Hence, Exception II Violates Article 14 of the Constitution.

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