Petitioner Memorial Anti Defection Law

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Petitioner Memorial - anti defection law
Public international law (Rashtrasant Tukadoji Maharaj Nagpur University)
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Team Code- 01
SINHGAD LAW COLLEGE, PUNE

8th KASHIBAI NAVALE NATIONAL MOOT COURT
COMPETITION,2022
BEFORE THE SUPREME COURT OF MIRANCHI
IN JOINT HEARING OF S.L.P. (CRIMINAL) AND WRIT PETITION
APPELLANT
Mrs. KITE
&
PETITIONER
ANMOL JEEVAN NGO
vs.
RESPONDENT
UNION OF MIRANCHI
MEMORIAL FILED ON BEHALF OF

PETITIONER
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MEMORIAL FOR PETITIONER
INDEX
Sr. No. Contents Pg. No.
Index of Authorities 2
1.
Statement of Jurisdiction 3
2.
Statement of Facts- 4
3.
Statement of Issues 5
4.
Summary of Pleadings 6
5.
Arguments Advanced 7-23

6.
The Prayer 24
7.
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LIST OF ABBREVATIONS
• The Constitution of Miranchi ---------------------The Constitution
• Miranchi Penal Code ------------------------------- MPC
• Supreme Court --------------------------------------- SC
• Article -------------------------------------------------- Art.
• Under Section ----------------------------------------- u/s
• Versus -------------------------------------------------- V. / Vs.
• Others -------------------------------------------------- Ors.
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INDEX OF AUTHORITIES
Sr. Case Laws Citations Pg. No.
State of Maharashtra v. Madhukar Narayan

1. AIR 1991 SC 207 7
Mardikar
Justice K.S. Puttaswamy (Retd) vs. Union of WP (CIVIL) no.
2. 8, 17
India 494 of 2012
SCC Online SC
3. Joseph Shine v. Union of India, 2018 9, 17
1676
4. State of West Bengal v. Anwar Ali Sarkar AIR 1952 SC 75 12
5. Motor General Traders v. State of A.P. 1984 AIR 121 13
Nimeshbhai Bharatbhai Desai v. State of 2018 scc online

6. 14
Gujarat guj 732
7. E. P. Royappa vs. State of Tamil Nadu 1974 air 555 16
8. Olga Tellis vs. Bombay Municipal 1986 AIR 180 16
Pradeep Tomar And Another vs State of U.P. DGLS(Alld.) 2010

9. 20
And Another (0) 3905
10. R v C, 2004 [2004] 3 All ER 1 20
474 N.E.2d 567

11. People v. Liberta 21
(N.Y. 1984)
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BIBLIOGRAPHY & WEBOGRAPHY
 Books Referred:
Prof. M.P.Jain: Constitution Law (8th edition)

V.N.Shukla: Constitutional Law of India (13th edition)
The Bluebook- A Uniform System of Citations. (20th edition)
 Statutes/Rules Referred:
Miranchi Penal Code, 1860

Constitution of India, 1949
Protection of Women from Domestic Violence Act, 2005
Hindu Marriage Act, 1955
 Webliography:
www.indiankanoon.org
www.stpl.com
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STATEMENT OF JURISDICTION
1. ARTICLE 136 SPECIAL LEAVE TO APPEAL BY THE SUPREME COURT
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion,
grant special leave to appeal from any judgment, decree, determination, sentence or
order in any cause or matter passed or made by any court or tribunal in the territory of
India
(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces
2. ARTICLE 32 PART III OF THE CONSTITUTION OF INDIA READS AS UNDER-
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) Without prejudice to the powers conferred on the Supreme Court by clause ( 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.
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STATEMENT OF FACTS
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. 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. 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. The Sessions
Court at Pridelands tried and convicted Jay T of 6 offences under sec 498-A IPC 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.
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.
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STATEMENT OF ISSUES
1. Whether a marriage brings with it the right of a husband to have sexual
intercourse without his wife's consent?
2. Whether classification of right to prosecute a man on the basis of relationship/
marriage is unreasonable and offends Article 14 of the Constitution?
3. Whether striking off the exception to sec 375 would amount to creation of new
offence?
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SUMMARY OF PLEADINGS
Issue 1: A marriage brings with it the right of a husband to have sexual intercourse
without his wife's consent Marriage does not suspend any individual’s fundamental rights.
On commission of marital rape Husband cannot be acquitted by taking support of argument
that marriage implies irrevocable consent. Marriage according to religious text has no place for
immoral acts. Hence MARRIAGE DOES NOT BRING WITH IT THE RIGHT OF A HUSBAND TO HAVE
SEXUAL INTERCOURSE WITHOUT HIS WIFE'S CONSENT.
Issue 2: Classification of right to prosecute a man on the basis of relationship/ marriage

is unreasonable and offends Article 14 of the Constitution as the classes formed by the
existence of exception-2 of sec 375 IPC are not reasonable as they do not pass the dual test of
reasonability - intelligible differentia and rational nexus to statute. And thus, offends Article
14. Moreover, the exception also leads to formation of unreasonable classification of victims.
The crime of Marital Rape is violative of a wife’s Rights under Article 19(1) (a) and Article 21
when subjected to Rape by her own husband. And the exception-2 leads to discrimination
against the victim wife based on her marital relation with the offender to seek remedy for such
violations of her right. Hence by this way too the EXCEPTION-2 IS IN VIOLATION OF
ARTICLE 14.
Issue 3: Striking off the exception to sec 375 would amount to creation of new offence.
Striking off of an exception to a law does not render the whole law altered. It does not amount
to rewriting of the law. Striking off of the Exception-2 would merely bring under the ambit of
Rape the cases of marital rape. Since a Rapist is a rapist irrespective of his relationship with
the victim, and since all the four essential elements of crime are exactly the same in both crimes
of “Rape of victim by a person who is not her husband” and “Rape of victim by her husband”
it can be concluded that - bringing marital rape under the ambit of rape would not amount to
creation of new offence if the Exception-2 of the Section 375 of IPC is striked off.
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ARGUMENTS ADVANCED
(1) THAT A MARRIAGE DOES NOT BRING WITH IT THE RIGHT OF A HUSBAND
TO HAVE SEXUAL INTERCOURSE WITHOUT HIS WIFE'S CONSENT.
1.1. Marriage does not suspend any individual’s fundamental rights.
1.1.1. Marriage does not take away a wife’s Fundamental Right conferred to her under Article
21.
Article 21 of the Constitution of India states that “Protection of life and personal liberty - No
person shall be deprived of his life or personal liberty except according to procedure established
by law”.
All women’s physical integrity flows directly from the fundamental right to life, dignity and
bodily privacy; her right to sexual and reproductive autonomy flows directly from the right to
liberty. Every citizen of India irrespective of their marital status have been granted Fundamental
rights laid under Article 21.
Further the United Nations General Assembly adopted CEDAW as the international bill of
rights for women. Under CEDAW the Article 5 deals with Sex roles and Stereotyping. This
article recognizes that there is a role of tradition and culture which to an extent limits the rights
of women. CEDAW puts an obligation on the state to abolish such cultural practices and to take
steps to eliminate stereotyping. And Miranchi being a part of the UN General Assembly has to
comply with this bill.
In case of State of Maharashtra v. Madhukar Narayan Mardikar1 the Supreme Court held that
prostitutes also have a right to privacy and no one can interfere with her privacy when he likes
to. Right to privacy is a fundamental right that falls under the ambit of Article 21.
The court in this case upheld the right to privacy (Art. 21) of prostitutes. Prostitution as an
activity has its core into sexual relations and sexual acts. And the judicial precedent that Article
21 being violated of a prostitute amount to rape establishes that - consent of the victim cannot
be inferred by her actions of past if there is an expressed non consent present before commission
of rape.
1
AIR 1991 SC 207
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One of the issues that rises in case of marital rape is that in a marital relationship, sexual
relationship is one of the important aspects. Thereby the consent is implied by the fact that
consent of the wife was present at the time of entering into marriage and therefore her consent
is implied when subjected to non-consented, forced sexual intercourse amounting to the law not
recognising it as a crime. But how can marriage imply consent in case where the wife has
expressly denied to consenting to sexual intercourse. If even prostitutes have Right to Privacy
and in case of its infringement the right to seek remedy from the Court, then so does a wife.
Husband simply cannot force the intercourse on his wife. Marriage does not suspend a wife’s
Right to Life and Personal liberty.
In the case of Justice K. S. Puttaswamy (Retd) vs. Union of India2 on 26 September, 2018, the
Supreme Court has recognised the value of physical integrity and sexual autonomy under Article
21. Thus, a Wife is also entitled to right to physical integrity and sexual autonomy conferred
to her under Article 21 of the Constitution.
1.1.2 Marriage does not put restrictions on Fundamental right to Freedom of speech and
expression of a wife.
Implying consent where there's been non consented sexual intercourse by husband with his own
wife - amounts to violation of her right under Article 19(1)(a)
The Constitution of Miranchi has provided a Fundamental right to every citizen to have Freedom
of speech and expression. Further in Article 19(2) it is provided that – “Nothing in sub clause
(a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from
making any law, in so far as such law imposes reasonable restrictions on the exercise of the
right conferred by the said sub clause in the interests of the sovereignty and integrity of India,
the security of the State, friendly relations with foreign States, public order, decency or morality
or in relation to contempt of court, defamation or incitement to an offence”
But the Exception-2 of Sec 375 IPC does exactly the opposite of what the Article 19(2) states.
It puts unreasonable restrictions on married women’s right to freedom of expression. The
2
WP (CIVIL) no. 494 of 2012
10
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Freedom of Speech and Expression cannot be infringed merely by change of marital status of a
woman. Her consent to sexual intercourse is a must. The most personal relationship of marriage
shared between a man and a woman should be governed by consent. From the time a woman
agrees to marry a man, till she agrees to have sexual intercourse with him, there is a need to
establish explicit consent at each and every stage. Consent is the legal line which divides a rape
from a sexual intercourse. With consent being taken as implied due to existence of marital
relation between the husband and wife, the law takes away the victim right to express her “NO”
to the sexual intercourse that is being forced on her.
Justice Chandrachud in Joseph Shine v. Union of India3, 2018 has stated that “there is
a right to say no after marriage.” Even if the woman consents to sexual intercourse after
marriage she did not consent for forceful intercourse. It cannot be assumed that a woman
consents to violence or cruelty after marriage. Hence, a woman is fully entitled to her right of
Freedom of Speech and Expression even after she enters into a marriage.
1.1.3. A wife’s right to equality cannot be violated in the name of marriage.

Article 14 of the Constitution of India states – “Equality before law: The State shall not deny
to any person equality before the law or the equal protection of the laws within the territory of
India.”
Every individual has the same fundamental rights as other individuals in Miranchi.
Marital status cannot take away this right to equality. The Exception-2 violates Article 14 as
victims of rape by their own husbands are not given equal protection of law as the victims of
rape by someone who is not their husband. Moreover, the mere existence of marital relationship
between married couple undergoing separation pursuant to Sec 376A IPC gives unequal
treatment by law. The victim in this case when rape by her husband when files a complaint
against the husband, the Husband is liable only to be punished with imprisonment of either
description for a term which may extend to two years and shall also be liable to fine. These
classifications made under rape laws on basis of marriage is unreasonable and thus offends
Article 14. The Article 14 has no exception clause or explanation clause where the institution
of marriage is given a free pass to violate the right to equality of married women.
1.2. Marital relationship as per various religious tests
3
SCC Online SC 1676
11
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Marriage as per religious faiths is not an institution that has any place for immorality and
cruelty.
A] IN A MARRIAGE THERE SHOULD NOT BE ANY DISRESPECT TOWARDS ONE’S
SPOUSE ACCORDING TO HINDU RELIGION.
In Hindu religion marriage is a sacred union. Sacred means pure, holy, sanctified and
without any sin. Manu declared that mutual fidelity (which means mutual loyalty and respect)
between husband and wife was the highest dharma. According to Mahabharata, by cherishing
the woman one virtually cherishes the Goddess of prosperity herself. Wife under Hindu law is
not only a “gruhpatni,” but also a “dharma patni” and “shadharmini.” The wife is her husband's
best of friends. She is the source of Dharma, Artha, Kama, and Moksha. The husband is known
as bharthi. He is supposed to support his wife. He is also known as Pati because he is supposed
to support her. In Hindu Marriage Act there is mention of Saptapadi [in Sec 7(1)] which are 7
vows taken at the time of entering into marriage. And according to the Fifth Vachana or 5th
vow, the husband promises to consult his wife in all important matters
B] In MUSLIM RELIGION in a marriage there is supposed to be kindness between spouses

towards each other.
Marriage, according to the Quran – Islamic holy book, serves as a sanctuary and a place of
warmth. Quran 4:19-20 - Surat An-Nisa' These verses about marriage intend to protect women
from injustices, signifying those women should not be considered property or objects that men
or their relatives have ownership over. It includes the words “And live with them in kindness”
C] BIBLE CALLS FOR LOVE AND RESPECT BETWEEN HUSBAND AND WIFE.
The Epistle to the Ephesians, also called the Letter to the Ephesians and often shortened to
Ephesians, is the tenth book of the New Testament which is the second division of Biblical
Christian canon that talks about teachings of Christ Jesus It says in Ephesians and love each
other.5:33: Nevertheless, let every one of you in particular so love his wife even as himself; and
the wife see that she reverences her husband. Meaning the husband and wife are to respect. It is
clear that religious texts do not endorse any kind of misbehaviour by husband towards his wife.
They all call for love and respect between husband and wife. They preach that the husband
should support his wife, take her consultation in all important decision makings and treat her
with justice, love and kindness.
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1.3. In conclusion - Marriage does not bring with it a right for Husband to have sexual
intercourse without the consent of wife. And marriage cannot be a licence to rape one’s wife
as marriage is a holy and sacred union which has no place for such immorality.
13
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(2) CLASSIFICATION OF RIGHT TO PROSECUTE A MAN ON THE BASIS OF

RELATIONSHIP/ MARRIAGE IS UNREASONABLE AND OFFENDS ARTICLE 14
OF THE CONSTITUTION.
2.1. Article 14 talks about the right of equal treatment by the state granted to all persons.
2.1.1. ARTICLE 14 STATES EQUALITY BEFORE LAW- “The State shall not deny to any
person equality before the law or the equal protection of the laws within the territory of India”
But with regards to natural justice “the unequal cannot be treated equally”. Therefore,
classifications that are reasonable are formed before applying equality so that fairness is
maintained. This principle is called the Doctrine of Reasonable Classification.
In State of West Bengal v. Anwar Ali Sarkar4 two tests were laid down to verify the
reasonability of classifications made. The classifications in order to be in harmony with Article
14 have to be reasonable. The classification in order to be reasonable shall fulfil following two
tests:
Test 1: The classification must be founded on an intelligible differentia which distinguishes

those that are grouped from others are left out of the group
Test 2: The differentia must have a rational relation to the object sought to be achieved by the
Act.
2.2. The Miranchi Penal Code provides for definition of Rape under its Sec 375
2.2.1. RAPE UNDER SECTION 375 OF THE MIRANCHI PENAL CODE IS DEFINED AS
FOLLOWS:
A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual
intercourse with a woman under circumstances falling under any of the six following
descriptions: —
(First) — Against her will.
(Secondly) —Without her consent.
4
AIR 1952 SC 75
14
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(Thirdly) — With her consent, when her consent has been obtained by putting her or any person
in whom she is interested in fear of death or of hurt.
(Fourthly) —With her consent, when the man knows that he is not her husband, and that her
consent is given because she believes that he is another man to whom she is or believes herself
to be lawfully married.
(Fifthly) — With her consent, when, at the time of giving such consent, by reason of
unsoundness of mind or intoxication or the administration by him personally or through another
of any stupefying or unwholesome substance, she is unable to understand the nature and
consequences of that to which she gives consent.
(Sixthly) — With or without her consent, when she is under sixteen years of age.
(Exception 1) —A medical procedure or intervention shall not constitute rape.
(Exception 2) —Sexual intercourse by a man with his own wife, the wife not being under fifteen
years of age, is not rape.
2.2.2. THE MEANING AND EFFECTS OF EXCEPTION-2.
The Exception-2 to the Section 375 forms an implied distinction between “a person committing
rape against his own wife” and “a person committing rape against some female who is not his
wife.”
The Exception-2 expressly denies to prosecute a class of offenders who have sexual
intercourse with their own wife under six circumstance provided in Sec 375. It is obvious that
when discussion is in connection to the act of “Rape”, the sexual intercourse mentioned in its
exception is also a form of Rape and is specifically incorporated to disallow prosecution of a
certain class which in this case is - the person whose wife is the victim i.e., the husband.
2.2.3. The crux of the challenge to the exception is the moral and legal approbation attached to
the act of rape. It is not about punishing the husband, but it is about punishing the act. The status
quo of exception-2 is challengeable as it is not in consistency with the Constitution.
In the case of Motor General Traders v. State of A.P.5 it was held that “a provision
which was perfectly valid at the commencement of the Act could be challenged later on the
5
1984 AIR 121
15
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ground of unconstitutionality and struck down on that basis. What was once a perfectly valid
legislation, may in course of time, become discriminatory and liable to challenge on the ground
of its being violative of Article 14.”
2.2.4. The Exception-2 fails the dual tests and thus clearly is in violation of Article 14
The classification in order to be reasonable shall fulfil following two tests:
Test 1: The classification must be founded on an intelligible differentia which distinguishes

those that are grouped from others are left out of the group
Test 2: The differentia must have a rational relation to the object sought to be achieved by the
Act.
Test- 1
The Exception-2 to the Section 375 makes distinction between the person committing rape on
basis of their relationship with the victim. One of the classes are the one where the victim is not
in marital relation with the offender and the other class is where the victim and offender are
husband and wife. This distinction is not intelligible as the crime committed by both classes
violated the article 19(1)(a) fundamental right to freedom of speech and expression. It also
violates Article 21 Fundamental right to life and personal liberty which also includes Right to
privacy and right to bodily integrity. This crime cannot be justified even if it was committed by
the lawfully wedded husband. The crime of rape is the lowest crime of all crimes.
In Nimeshbhai Bharatbhai Desai Versus State of Gujarat6 Nov, 2017, the Gujarat High Court
had condemned marital rape, calling it a “disgraceful offence”. Justice JB Pardiwala had said,
“Marital rape is in existence in India, a disgraceful offence that has scarred the trust and
confidence in the institution of marriage. A large population of women has faced the brunt of
the non-criminalisation of the practice.”
Test- 2
The Constitution of India is the Law of the land. This Constitution of Miranchi has a Preamble
through which we can interpret the object of the Constitution of Miranchi.
It mentions the following:
6
2018 SCC OnLine Guj 732
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“JUSTICE, social, economic and political; LIBERTY of thought, expression, belief,

faith and worship; EQUALITY of status and of opportunity; and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation”
It has mention of Social Justice, Liberty of Expression, Equality of Status and Fraternity
assuring the dignity of the individual. Each one of these are violated by the act of marital rape
and the Exception-2 of Sec 375 which lets the offender get away with it. The victim is deprived
of the Justice she is entitled to for the breach of her fundamental rights.
Moreover, the object of the sec 375 of IPC is to penalize anyone who commits the
offence of rape. Thus, when the object is to penalise every rapist, it is improper to make further
classification amongst them on basis of their relationship with the victim.
Further currently in Miranchi there is a shift in societal tendency in direction the of
misogyny. Increase in number of female foeticides, number of missing women in the country
quadrupled from 15 million to 63 million in the 50-year period ending in 2014, also according
to an Miranchian government study, an additional 21 million girls are unwanted and do not
receive adequate care.
About 70% of women in Miranchi are victims of domestic violence, 83% of married
women (nearly one in three) have been subjugated to physical, sexual and emotional violence
at the hands of their spouse. 31% of married women between the ages of 15 and 49 who have
ever suffered sexual abuse cite their current husband as the perpetrator. This goes to show that
the exception-2 of 375 is providing protection to perpetrator of marital rape. It is justifying
husband’s cruelty towards his wife in the name of marriage. Thus, this classification has no
relation to the statute of penalising the act of Rape in all context.
2.2.5. Article 14 of the Constitution of India uses two expressions “Equality before the law” and
“Equal protection of law”.
The equal protection of law means that all persons similarly circumstanced are to be
treated alike both in privileges conferred and liabilities imposed by the laws. Equal law should
be applied to all in the same situation and there should be no discrimination between one person
and another. Thus, it forbids the discrimination between persons who are in same situation.
But the said exception to the sec 375 of IPC has made the distinction on the basis of the
person on whom the accused is committing an offense and thus is violative of article 14 of the
Constitution.
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Equality before the law means the law gives equal protection to all human beings. But
due to exception 2 of Sec 375 of IPC and Sec 376 B of IPC, according to the rape laws in India
rape victims are classified into three categories:
1. Raped by a stranger: These are covered under Sections 375 and 376 of the IPC.
2. Married but judicially separated and living separately from her husband: They are protected
under Section 376B of the IPC in case they are victims of rape committed by their husbands.
3. Married and living with her husband: these categories of women are not covered under any
Section of IPC.
The current rape laws provide the right to seek full remedy to the first category victim
and the second category although has a right to prosecute the offender but it has far lesser
punishment available.
But the exception 2 establishes that the third category is being expressly denied the right
to prosecute a man i.e. her husband who is the offender in that scenario. This is clearly
unreasonable and arbitrary in itself. Hence offends principles of Article 14.
2.2.6. The Exception-2 is Arbitrary.

According to Oxford University Press’s Oxford Languages dictionary the word
Arbitrary is defined as “based on random choice or personal whim, rather than any reason or
system”
All human beings are equal, no religion, law or script can change this fact.
In the case of E. P. Royappa vs. State of Tamil Nadu7 7The hon’ble Supreme Court held that
“Equality is a dynamic concept with many aspects and dimensions and it cannot be ‘cribbed,
cabined and confined’ within the traditional and the doctrine limits. From the positive point of
view, equality is antithesis to arbitrariness. In fact, equality and arbitrariness are sworn enemies;
one belongs to the rule of law in a republic while the other, to the whim and caprice of an
absolute monarchy. Where an act is arbitrary, it is implicit in it that it is unequal both
according to political logic and constitutional law and therefore violative of Article 14.”
The Exception-2 provides for classification of two different classes which is as above
explained unreasonable. Therefore, it is Arbitrary and thus violative of Article 14.
7
1974 AIR 555
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2.2.7. In the current case with the arguments present above, the rape law under Sec 375 and
specifically it’s exception-2 is liable to be challenged and struck down for it being violative of
Article 14, Article 19(1)(a), Article 21.
In the case of Olga Tellis vs. Bombay Municipal Corporation8 it was held that,
“Supreme Court has emphasized the term “life” in Art. 21 is not only restricted to the mere
animal existence of a person. It means something more and “the inhabitation against the
deprivation of life extends to all those limits and faculties by which life is enjoyed”. The ambit
and sweep of the “Right to life” embodied in Art. 21 are wide and far reaching.
In the case of Justice K. S. Puttaswamy (Retd) vs Union of India9 on 26 September,

2018, the Supreme Court has recognised the value of physical integrity and sexual autonomy
under the Article 21
Thus, disregarding a wife's non consent clearly amounts to treating her as an object or
property of the husband and taking away her physical integrity and sexual autonomy. With the
above-mentioned case laws, it is established that the term “life” in Article 21 is not only
restricted to the mere animal existence of a person, it includes physical integrity and sexual
autonomy. Hence proving that wife is also entitled to Right to life under Article 21 and marital
rape is violative of her this right.
The exception 2 of sec. 375 of IPC does not recognize the right of a married woman to
say no to sexual intercourse with her husband, therefore being violative of Article 19(1)(a) of
the Constitution for limiting a married woman's right to freedom of sexual expression and
behaviour.
The very assumption that there is an implied consent to have sexual intercourse after
marriage is huge misconception from the times when a woman was considered the property of
her husband. This implied consent theory was made on common law notion that after marriage
the wife gives irrevocable consent for sexual intercourse. With the development and change in
society the status of women has also changed.
8
1986 AIR 180
9
WP (CIVIL) no. 494 of 2012
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Justice Chandrachud in Joseph Shine v. Union of India10, 2018 has stated that “there is
a right to say no after marriage.” Even if the woman consents to sexual intercourse after
marriage she did not consent for forceful intercourse. It cannot be assumed that a woman
consents to violence or cruelty after marriage and neither the Indian law permits anyone to give
such consent which will harm her bodily integrity.
Thereby establishing that marriage is not an institution that takes away the Fundamental right
under Article 19(1)(a) Freedom of Speech and Expression
2.3. Effect of such unreasonableness on the current case of Jay T and Kite
2.3.1. In the present case of Jay T and Kite, Kite was subjected to an offense of Rape as defined
under I.P.C. Sec 375 along with other offences defined 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, by her husband Jay T. But the trial court did not convict Jay T for the offense of rape
on account of exception-2 of sec 375. This exception has clearly given an immunity to the
husband i.e., Jay T from prosecution and conviction for the brutal crime of Rape.
2.3.2. The mere existence of Exception-2 of Section 375 IPC has resulted into Jay T being
convicted under 498-A MPC r/w section 3 of the Protection of Women from Domestic
Violence Act,2005 and sentenced to 2 years of imprisonment and acquitted him of the charges
of Rape. In absence of Exception-2 Jay T would have been liable to punishment under Se376
(2) (f),(j), and (l).
2.3.3. Under Section 376(2), commits rape, shall be punished with rigorous imprisonment for a
term which shall not be less than ten years, but which may extend to imprisonment for life,
which shall mean imprisonment for the remainder of that person’s natural life, and shall also be
liable to fine.
2.4. In conclusion by arguments put forward above the it is established that classification of
right to prosecute a man on the basis of relationship/ marriage is unreasonable and it is thereby
clear that it offends Article 14 of the Constitution
10
SCC Online SC 1676
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lOMoARcPSD|4092474
(3) THAT STRIKING OFF THE EXCEPTION TO SEC 375 WOULD NOT AMOUNT TO
CREATION OF NEW OFFENCE
3.1. Offence as defined by laws of the Union of Miranchi.

3.1.1 Offence means a punishable wrong.
As per Sec 3 Clause 38 of General Clauses Act, 1897 “offence” shall mean any act or omission
made punishable by any law for the time being in force
Offences are also known by names such as crime, unlawful act etc. In Layman language, it can
be defined as a breach of law or an illegal act. Offences are anti-social in nature. They disturb the
tranquillity of the society and create fear and chaos in the minds of people.
3.1.2. A law makes an act or omission an offence.
The legislature in Miranchi has the right to make legislation policies and laws but the law so made
has to be consistent with the Constitution of Miranchi. It cannot be Ultra Vires to the provisions
of the Constitution. Anything that is unconstitutional shall be declared void by the Judiciary who
has power or perform a Judicial review of laws that are in force in India or are being brought in
force by the legislature after passing the bill and getting the President’s accent.
3.1.3. An exception to a section of offence means a thing that has been excluded from a
general statement of that Section of offence.
An exception to an offence is to form a certain classification for a certain purpose. These
classifications have to be reasonable as per Doctrine of reasonable classification. It is not an
entirely different statement unrelated to the offence to which it is in connection.
3.2. The offence of Rape:

3.2.1. Rape as per Sec. 375 -
A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual
intercourse with a woman under circumstances falling under any of the six following descriptions:
—
(First) — Against her will.
(Secondly) —Without her consent.
(Thirdly) — With her consent, when her consent has been obtained by putting her or any person
in whom she is interested in fear of death or of hurt.
(Fourthly) —With her consent, when the man knows that he is not her husband, and that her
consent is given because she believes that he is another man to whom she is or believes herself to
be lawfully married.
21
lOMoARcPSD|4092474
(Fifthly) — With her consent, when, at the time of giving such consent, by reason of unsoundness
of mind or intoxication or the administration by him personally or through another of any
stupefying or unwholesome substance, she is unable to understand the nature and consequences
of that to which she gives consent.
(Sixthly) — With or without her consent, when she is under sixteen years of age.
(Exception 1) —A medical procedure or intervention shall not constitute rape.
(Exception 2) —Sexual intercourse by a man with his own wife, the wife not being under fifteen
years of age, is not rape.
3.2.2. Object of Sec 375 and the meaning of exception-2 of Sec 375
The object of the sec 375 of IPC is to penalize anyone who commits the offence of rape. The
Offence of Rape in general term can be said to be an unlawful act of sexual intercourse to
which the victim did not consent with her free will.
The Exception-2 states that “Sexual intercourse by a man with his own wife, the wife not being
under fifteen years of age, is not rape.” The Section’s exception has provided an unnecessary
immunity to offenders who are the husbands of the rape victims which protects them from
prosecution of the merely on the grounds of their marital relationship.
3.2.3. The Exception-2 differentiates between “Rape” and “Marital rape” which are not
different offences.
Rights of victim in both cases are same and those same rights are violated by the rapist in both
the cases of Rape and Marital rape.
In Pradeep Tomar And Another vs State Of U.P. And Another11 on 27 January, 2021
Allahabad High Court in its judgement made reference to a decision [C.R. v. United Kingdom,
ECHR, Ser. A. No. 335-C (1995): (1995) 21 EHRR 363] of the European Commission of
Human Rights which endorsed the conclusion that "a rapist remains a rapist regardless of his
relationship with the victim.”
In U.K. in the case of R v C, 200412 the defendant argued that he had raped his wife before
marital rape was criminalized and thus, he should not be convicted for rape. However, the court
11
DGLS(Alld.) 2010 (0) 3905
12
[2004] 3 All ER 1
22
lOMoARcPSD|4092474
dismissed his appeal by stating that ‘his marriage certificate did not entitle him to force his
unwanted sexual attentions on her. Thereby convicting him under the same offence.’
In U.S. in the case of People v. Liberta13, the court declared marital rape as unconstitutional by
stating that a married woman has the exact same rights to control her body as those of an
unmarried woman and marriage should not be seen as a license for a husband to rape his wife.
Thus, establishing through these above-mentioned case laws, it is very clear that marital rape is
no different than what has been defined as the definition of Rape
3.2.4. Marital rape elements are same as that of Rape.

In both cases there are the same 4 essential elements of crime, thus the crime is exactly the
same. Following are the essential elements compared to help conclude that Marial rape and
Rape are the same thing.
a.) The mens rea involved is the same - If the victim had not consented to the sexual intercourse
may the offender be a stranger or her own husband, nothing gives him the right to force himself
on her. It is irrelevant if there exists an implied consent or not. The husband could ask for
divorce on that ground of revocation of consent even when there was an implied one, but he
cannot disregard her non consent and rape her. If he does so, he has exactly equal and same
mens rea as to in the case of stranger committing rape; and
b.) The actus reus involved is the same - The criminal action is exactly the same in both
scenarios of current Rape defined u/s 375 and marital rape; and
c.) The offender in both cases is a human being.
d.) Injury - The physical and mental injury if not more in case of marital rape is the same as in
the case of rape by someone who is not the husband of the victim.
This clearly goes to show that marital rape is no less or no different of a crime than Rape
defined under sec 375 I.P.C.
Thereby further proving the fact that Marital rape is not a different offence than Rape by someone
who is not the husband of the victim.
3.3. Effect of striking off of exception -2.

The Sec 375 deals with the offence of Rape in detail with certain circumstances under which the
offence can be committed. The Object of the section is to punish the act of rape committed under
13
474 N.E.2d 567 (N.Y. 1984)
23
lOMoARcPSD|4092474
6 circumstances that are covered in detailed in the Sec 375. Mere removal of its exception-2 does
not mean that a whole new offence has been created. The removal of exception here would only
amount to bringing in a thereby protected class of offender under the ambit of the punishable act
of rape that has been made punishable under the Main section of the exception clause.
Striking off an exception to the law would not amount to its complete rewriting. The crux of the
law still remains the same if Exception-2 of the Section 375 is struck off.
3.4. Article 13 empowers the hon’ble court to exercise its rightful power and strike down
Exception 2.
In the case of Motor General Traders v. State of A.P.14 it was held that “a provision which was
perfectly valid at the commencement of the Act could be challenged later on the ground of
unconstitutionality and struck down on that basis. What was once a perfectly valid legislation,
may in course of time, become discriminatory and liable to challenge on the ground of its being
violative of Article 14”
In earlier issues it has been explained in details that Exception-2 is violative of Article 14.
Therefore, as Exception-2 is liable to be challenged on the ground of it being unconstitutional, it
is thereby, when proved to be so, is liable to be struck down.
Article 13 of the Miranchi Constitution opens the doors for the judicial review on any law
or part of it that is found unconstitutional or violative of fundamental rights. It has within it linked
the Doctrine of Severability. According to the Article the doctrine of severability means a law
which is declared as void is only to the extent of inconsistency or contravention with the
Fundamental Rights of the Constitution.of Miranchi.
The word Severability comes from the word Sever which means to cut off or to separate.
Hence the Doctrine of Severability means to separate or cut off unconstitutional parts of the law
and not the whole law itself. Thus, striking off of Exception of a law would not amount to striking
off it in totality or creating a new law. It is merely amending the law to fit within the confines of
the Constitution of India.
The striking off of the Exception-2 cannot with any stretch of imagination change the crux or
object of the section 375. Thus, the striking off of its exception would not create a new offence
but only bring the class exempted by that exception with the ambit of the main law.
3.5. Hence proving that bringing marital rape under the ambit of rape would not amount to
creation of new offence if the Exception-2 of the Section 375 of IPC is struck off.
14
1984 AIR 121
24
lOMoARcPSD|4092474
PRAYER
In the light of the issued raised, arguments advanced and authorities cited, the counsel for
petitioners humbly prays, that, this Hon’ble Court may kindly be pleased to:
i. declare that the classifications made by the Exception-2 of Section 375 are
unreasonable and thereby violate Article 14 of the Constitution of India
ii. declare the classifications made by the Exception-2 of Section 375 as
unconstitutional as it violates the fundamental rights of the women and further
declare that the such striking does not amount to creation of a new offence.
iii. declare that the marriage does not bring with it right of husband to have sexual
intercourse without his wife’s consent
iv. issue a writ recommending the Government of Miranchi through its Secretary
and the Secretary to Department of Law and Justice, framing of a law or
enacting a provision to criminalise marital intercourse without consent.
v. to pass a decree/order of injunction the respondent be restrained for committing
marital intercourse without consent of the petitioner.
25

Petitioner Memorial Anti Defection Law

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Petitioner Memorial - anti defection law

Public international law (Rashtrasant Tukadoji Maharaj Nagpur University)

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SINHGAD LAW COLLEGE, PUNE

BEFORE THE SUPREME COURT OF MIRANCHI

IN JOINT HEARING OF S.L.P. (CRIMINAL) AND WRIT PETITION

ANMOL JEEVAN NGO

MEMORIAL FILED ON BEHALF OF

MEMORIAL FOR PETITIONER

Sr. No. Contents Pg. No.

Arguments Advanced 7-23

MEMORIAL FOR PETITIONER

• The Constitution of Miranchi ---------------------The Constitution

• Miranchi Penal Code ------------------------------- MPC

• Supreme Court --------------------------------------- SC

• Article -------------------------------------------------- Art.

• Under Section ----------------------------------------- u/s

• Versus -------------------------------------------------- V. / Vs.

• Others -------------------------------------------------- Ors.

MEMORIAL FOR PETITIONER

Sr. Case Laws Citations Pg. No.

State of Maharashtra v. Madhukar Narayan

5. Motor General Traders v. State of A.P. 1984 AIR 121 13

Nimeshbhai Bharatbhai Desai v. State of 2018 scc online

8. Olga Tellis vs. Bombay Municipal 1986 AIR 180 16

Pradeep Tomar And Another vs State of U.P. DGLS(Alld.) 2010

474 N.E.2d 567

MEMORIAL FOR PETITIONER

BIBLIOGRAPHY & WEBOGRAPHY

Prof. M.P.Jain: Constitution Law (8th edition)

Miranchi Penal Code, 1860

MEMORIAL FOR PETITIONER

1. ARTICLE 136 SPECIAL LEAVE TO APPEAL BY THE SUPREME COURT

2. ARTICLE 32 PART III OF THE CONSTITUTION OF INDIA READS AS UNDER-

Remedies for enforcement of rights conferred by this Part-

the rights conferred by this Part is guaranteed.

MEMORIAL FOR PETITIONER

MEMORIAL FOR PETITIONER

1. Whether a marriage brings with it the right of a husband to have sexual

intercourse without his wife's consent?

2. Whether classification of right to prosecute a man on the basis of relationship/

marriage is unreasonable and offends Article 14 of the Constitution?

MEMORIAL FOR PETITIONER

Issue 2: Classification of right to prosecute a man on the basis of relationship/ marriage

MEMORIAL FOR PETITIONER

1.1. Marriage does not suspend any individual’s fundamental rights.

MEMORIAL FOR PETITIONER

MEMORIAL FOR PETITIONER

1.1.3. A wife’s right to equality cannot be violated in the name of marriage.

MEMORIAL FOR PETITIONER

B] In MUSLIM RELIGION in a marriage there is supposed to be kindness between spouses

MEMORIAL FOR PETITIONER

MEMORIAL FOR PETITIONER

(2) CLASSIFICATION OF RIGHT TO PROSECUTE A MAN ON THE BASIS OF

Test 1: The classification must be founded on an intelligible differentia which distinguishes

(First) — Against her will.

(Secondly) —Without her consent.

MEMORIAL FOR PETITIONER

(Exception 1) —A medical procedure or intervention shall not constitute rape.

2.2.2. THE MEANING AND EFFECTS OF EXCEPTION-2.

MEMORIAL FOR PETITIONER