Respondent RLC

TEAM CODE:
TC44R
IN THE SUPREME COURT OF INDIA
Petition No. of 2019
(Under Article 32 of the Constitution of India)
Society for Women’s Rights NGO……………………….PETITIONER
Vs.
Union Of India ………………….. ….…………………RESPONDENT
WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT
Most Respectfully Submitted before the Supreme Court of India
_________________________________________________________________
8th RGNUL NATIONAL MOOT COURT COMPETITION

________________________________________________________________
THE 8th RGNUL NATIONAL MOOT COURT COMPETITION 2019
___________________________________________________________________________
TABLE OF CONTENTS
__________________________________________________________________________
_ Table of
Contents……………………………………………………………………………. 1
Index of Authorities…………………………………………………………………………...
Statement of Jurisdiction……………………………………………………………………..
Statement of Facts……………………………………………………………………………..
Statement of Issues……………………………………………………………………………
Summary of
Arguments……………………………………………………………………….
Arguments
Advanced…………………………………………………………………………...
I. That the PIL is not

maintainable…………………………………………………………….
A. Limited judicial intervention in matters …………...…………………..
B. No Fundamental rights have been infringed.……………………..…...
C. Alternate remedies have not been exhausted.……….

…………………………………………………..
II. The fundamental rights of the petitioners have been

infringed…………………………………………….………………………………...
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[MEMORIAL FOR THE RESPONDENT]

A. Marital rape is not violative of Articles 14 and 21 of the Indian

Constitution…………………….
B. There has been no infringement of Article 19………………………………...
C. There is a distinction between married and unmarried women…………………………
D. The said exception is not ‘manifestly arbitrary’.............................................................
E. Fringe rights can be taken away by the state…………………………………………..
III. Exception II to Section 375 of the Indian Penal Code, 1860 is constitutional in
nature……………………………………………..
A. Ascertaining the value of evidence is difficult………………...…………………….
B. Sexual intercourse and RCR go hand in hand…………………………………………
C. Removal of the exception would amount to a presumption in favour of women………
D. Intelligible Differentia Principle………………………………………………..
Prayer………………………………………………………………………………………..
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___________________________________________________________________________
INDEX OF AUTHORITIES
___________________________________________________________________________
A. CASES REFERRED:
A.1 Supreme Court:
1. State of Rajasthan v. Union of India, AIR 1977 SC 1361

2. State of West Bengal and others v. Ashutosh Lahiri and Others, (1995) 1 SCC
189.
3. Ramjilal v. Income Tax Officer, AIR 1951 SC 97.
4. Asstt. Collector of Central Excise v. Jainson Hosier AIR 1979 SC 1889.
5. Sakshi v. UOI, WP(crl.)33 of 1997
6.
7. Justice K S Puttaswamy (Retd) v Union of India (“Puttaswamy”), (2017) 10 SCC
1.
8. Narendra Kumar v Union Of India, AIR 1960 SC 430.
9. RIT Foundation v Union Of India, W.P. (C) No.284/2015 (India).
10. Maneka Gandhi v. Union of India, 1978 AIR 597.
11. Joseph Shine v Union Of India, W.P. 194 of 2017.
12. Rajbala v State of Haryana, 1 SCC 463, (2016).
13. Navtej Singh Johar v. Union of. India, (2018) 1 SCC 791.
14. State of A.P. Vs. Mc. Dowell Company, AIR 1996 SC 1627.
15. Darshan Singh Balwant Singh and another v. The State of Punjab
16. Animal Welfare Board of India vs. A. Nagaraja and Others
17. The State of Bombay and another vs. F.N. Balsara
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18. State of Uttar Pradesh and Others vs. Hirendra Pal Singh and Others
19. Arif Usman Kapadia vs the state of orissa
20. Sheik Zakir v State of Bihar, 1983 AIR 911.
21. Independent Thought vs. Union of India (UOI) and Ors. WP (C) NO. 382 OF
2013.
22. Rita Nijhawan vs Balakishan Nijhawan, AIR 1973 Delhi 2009 (1973) DLT 222.
23. Anil Bharadwaj Vs. Nimlesh Bharadwaj, AIR 1987 Del 111
24. Balram Kumawat Vs. Union of India, AIR 1996 SC 2184.
25. Kavalappara Kottarathil Kochuni Vs. State of Madras and Kerala, (1960) 3 SCR
887.
26. Kavalappara Kottarathil Kochuni Vs. State of Madras and Kerala, (1960) 3 SCR
887.
27. O.K. Ghosh Vs. E.X. Joseph,
28. Indian Handicrafts Emporium and Ors. v. Union of India and Ors
29. Mohd. Hanif Qureshi and Ors. v. State of Bihar and Ors.
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A.2 High Court

1. Harvinder Kaur vs. Harmander Singh Choudhry , AIR 1984 Delhi 66, ILR 1984 Delhi
546, 1984 RLR 187
A.3 Foreign Courts
1. Balfour v. Balfour (1919) 2 K.B. 571 (15)
B. BOOKS REFERRED :-
1. D D Basu Criminal Procedure Code ,4th Edition, Volume II
2. Ratanlal, Dhirajlal, The Indian Penal Code, Volume II.
3. Durga Das Basu, Commentary on the Constitution of India, (2007), Vol-I, p.986.
4. Oxford Handbook of Public Policy.
5. Paras Diwan, Modern Hindu Law, (2007), p.63-64.
6. Lalsa Mohini, “Legitimacy of Section 498A Of Indian Penal Code”
C. STATUTES REFERRED :-
1. 172nd Law Commission Report, Law Commission of India, 2000
2. Article 14, The Indian Constitution.
3. Article 7, Universal Declaration of Human rights, 1948.
4. Article 3, Covenant on Economic Social and Cultural Rights.
5. Malimath committee report Published in December 2011
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6. Michael G. Hilf, Marital Privacy and Spousal Rape, 16 New Eng. L. Rev.
7. Prof. Ajay Kumar, “Institution Of Marriage-Judicial Approach”, AIR, January, p.6,
( 2010)
8. Domestic Violence Act, 2005.
9. Indian Penal Code section 498-A.
10. P.K. Das, Law relating to cruelty to husband, (2008), p.1.
D. JOURNAL ARTICLES :-
1. Misuse of Legal Protection, shodhganga.
2. Hart K., “The Assessment of Female Offenders”,
3. James J., “Women’s Liberation and the female delinquent”
4. Maitreyee Shukla, Term Paper: Family, Marriage and Kinship
5. Paluck Sharma, INBA, Restitution of Conjugal Rights: A Comparative Study Among
Indian Personal Laws.
6. Shrishti Borthakur, Legal Consequences of denying Conjugal Rights to your partner,
Ipleaders.
7. Dr Avinash kumar, “Private violence, Public wrong & human reconceptualizing domestic
violence in India.
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___________________________________________________________________________
STATEMENT OF JURISDICTION
___________________________________________________________________________
The Petitioner has filed this Public Interest Litigation under Article 32 of the Constitution of
India.
The Hon’ble Supreme Court of India has the jurisdiction in this matter under Article 32 of the
Constitution of India which reads as follows:
“32. 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.”
The Respondent humbly submits to the same.
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_________________________________________________________________________
STATEMENT OF FACTS
___________________________________________________________________________
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
resented the idea of them marrying each other.
2. Later on, upon convincing their parents that they are the perfect match for each other, in
December 2018, Nidhi and Subodh tied the knot as per the Hindu rituals and customs.
3. Unfortunately, circumstances changed after their marriage and things went downhill.
Nidhi attributed this to repeated demands of intercourse by Subodh as if it were a matter
of right rather than an act of two consenting adults, thus acting like a more dominating
figure.
4. Nidhi consulted her mother and mother-in-law, both of them tried to silence her and
opined 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.
5. One day, Nidhi was watching a debate show on television on the topic of marital rape.
Several panelists were arguing for and against the motion.
6. Those against the Exception II to Section 375 of the Indian Penal Code, 1860 argued that
it was based on the archaic concepts where the wife was considered as possession and
property of the husband and that it is violative of human rights and various rights of
women under Article 21 of the constitution.
7. On the other hand, the other panelists argued in favour of Exception II to Section 375
upholding that it had been inserted to preserve the institution of marriage and
criminalization of sexual intercourse between spouses had potential to wreak havoc on the
society and also that the legislature is aware of the rights of the women.
8. Moved by the debate, Nidhi finally decided to fight for her rights and what she thought
was a blatant injustice against her persona. She approached Society for Women’s Rights
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an NGO that works for the development and welfare of women, that has previously helped
to bring in women-centric laws by rallying for classification and enactment of women
rights via legislations and judicial intervention 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.
9. 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.
10. The PIL also challenges the constitutional validity of Exception II to Section 375 of the
Indian Penal Code, 1860.
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STATEMENT OF ISSUES
___________________________________________________________________________
ISSUE 1
Whether the PIL is maintainable before the Hon’ble Supreme Court of India?
ISSUE 2
Whether the Exception II to Section 375 of the Indian Penal Code, 1860 violates the fundamental
rights of the petitioners?
ISSUE 3
Whether Exception II to Section 375 of the Indian Penal Code, 1860 is unconstitutional?
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__________________________________________________________________________
SUMMARY OF ARGUMENTS
___________________________________________________________________________
I, THAT THE PUBLIC INTEREST LITIGATION IS MAINTAINABLE
The public interest litigation filed by the petitioner is not maintainable as:
A. There shall be Limited judicial intervention in marital matters

B. No Fundamental rights of the petitioners have been infringed.
C. Alternate remedies have not been exhausted.
II. THAT THE FUNDAMENTAL RIGHTS OF THE PETITIONERS HAVE NOT BEEN
VIOLATED
The fundamental rights of the petitioners have been violated as:
A.Marital rape is not violative of Articles 14 and 21 of the Indian Constitution
B.There has been no infringement of Article 19.
C.There is a distinction between married and unmarried women.

D. The said exception is not ‘manifestly arbitrary’.
E. Fringe rights can be taken away by the state.
III. EXCEPTION II TO SECTION 375 OF THE INDIAN PENAL CODE,1960 IS

UNCONSTITUTIONAL IN NATURE
A. Ascertaining the value of evidence is difficult
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B. Sexual intercourse and RCR go hand in hand
C. Removal of the exception would amount to a presumption in favour of women
D. Intelligible Differentia Principle is fulfilled
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ARGUMENTS ADVANCED
I. THAT THE PUBLIC INTEREST LITIGATION IS NOT MAINTAINABLE
A.Limited judicial intervention in legislative matters:
1. The institution of marriage is an oldest social institution and provides a foundation

on which whole superstructure of civilization and prosperity is built.1
2. "The Court does not possess the resources which are in the hands of the
Government to find out the political needs that they seek to observe and the feelings or
the aspiration of the Nation that require a particular action to be taken at a particular
time.”2
3. In order to judge the reasonableness of the restrictions, no abstract or general
pattern or a fixed principle can be laid down so as to be of universal application and the
same will vary from case to case as also with regard to changing conditions, values of
human life, social philosophy of the Constitution, prevailing conditions and the
surrounding circumstances.3
B. No fundamental rights of the petitioners have been infringed:
1. The jurisdiction under Art.32 can be invoked only when Fundamental Rights are
violated. It has been held that if a right, other than a fundamental right, is claimed to be violated
1 Misuse of Legal Protection, shodhganga.

2 State of Rajasthan v. Union of India, AIR 1977 SC 1361.
3 State of West Bengal and others v. Ashutosh Lahiri and Others, (1995) 1 SCC 189.
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then such questions can be addressed only in the appropriate proceedings and not on an
application under Art. 32.4
2. In the instant matter no fundamental rights of the petitioner have been infringed, as
Exception 2 of Section 375 is in the nature of reasonable restriction on fundamental rights
guaranteed by Article 14 and 21 of the Indian constitution.
C.Availability of alternate remedies
It was held this Hon’ble apex court in Asstt. Collector of Central Excise v. Jainson Hosiery 5
where there is alternative statutory remedy court should not intervene.
The Protection Of Women From Domestic Violence Act, 2005

1. It is a reasonable substitute or remedy available to women who are victims of
marital rape. This is because the Domestic Violence Act provides remedies to women in
cases of sexual abuse which includes any conduct of a sexual nature that abuses,
humiliates, degrades or otherwise violates the dignity of woman.6
2. The short point, however, is that wives are not that helpless in the case of marital
rape they can seek the help of a magistrate under the domestic violence law. Marital rape
comes under an exception to rape under the IPC, but the Domestic Violence Act comes to
the rescue of victims through protection orders or orders to stop violence.7
3. Marital rape also amounts to ‘sexual abuse’ under the law regarding domestic
violence enacted in 2005, under which aggrieved wives or female live-in partners can
claim civil remedies, like injunction against violence, dispossession from home or
direction to the husband/partner to pay maintenance.8
4 Ramjilal v. Income Tax Officer, AIR 1951 SC 97.

5 AIR 1979 SC 1889.
6 Hart K., “The Assessment of Female Offenders”, Paper Presented on the Women in Corrections; Staff and Clients
Conference Convened by the Australian Institute of Criminology in Adelaide, 31st Oct-1st Nov, 2000.
7 James J., “Women’s Liberation and the female delinquent” Journal of Research in Crime and Delinquency, vol 17,
(1980)p.230.
8 id.
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4. The law kicks in to regulate sexual violence in marriage only in cases when it is
accompanied by extreme physical violence or when the health and safety of the wife is
endangered, as in the case of minor wives.
Section 498 A
1. Husband or relative of husband of a woman subjecting her to cruelty.—
Whoever, being the husband or the relative of the husband of a woman, subjects such
woman to cruelty shall be punished with imprisonment for a term which may extend to
three years and shall also be liable to fine. Explanation.—For the purpose of this
section, “cruelty” means—
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit
suicide or to cause grave injury or danger to life, limb or health (whether mental or
physical) of the woman; or (b) harassment of the woman where such harassment is with a
view to coercing her or any person related to her to meet any unlawful demand for any
property or valuable security or is on account of failure by her or any person related to
her to meet such demand.9
2. It is humbly submitted that: Section 498-A is exclusively available to a married

woman only and not any other women and was enacted only for the protection of the
wife from any acts by her husband that can endanger her and there is no requirement to
bring in a fresh law or removing the exception, that is, bringing a new law to criminalize
marital rape and take away the immunity from the husband, as there is already an act in
place that protects a woman from any kind of sexual abuse.
3. Therefore, on the basis of the abovementioned arguments the counsel submits that
marital rape should not amount to rape under Section 375 of IPC. Moreover, the
presumption that cruelty affords a lesser punishment than rape and hence, cannot be an
9 D D Basu Criminal Procedure Code ,4th Edition, Volume II
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alternative remedy is false on the ground that spousal rape is a lesser crime, the same has
been held in a global pretext.10
Law Commission Report:
1. That the Law Commission of India has already dealt with the issue of criminalizing
marital rape. The Commission in its 172nd report 11 clearly indicated that criminalizing marital
rape would amount to too much interference in the marital relationship. Chapter three of the
172nd report says that:
Where a husband causes some physical injury to his wife, he is punishable under the
appropriate offence and the fact that he is the husband of the victim is not an extenuating
circumstance recognized by law; if so, there is no reason why concession should be made
in the matter of offence of rape/sexual assault where the wife happens to be above 15/16
years. This Exception should be recommended to be deleted since that may amount to
excessive interference with the marital relationship.12
II. THAT THE FUNDAMENTAL RIGHTS OF THE PETITIONERS HAVE NOT BEEN
VIOLATED
10 33 of 50 U.S. S
11 172nd Law Commission Report, Law Commission of India, 2000
12 Sakshi v. UOI, WP(crl.)33 of 1997
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Marital rape could not be criminalized and further added that there is no proposal to make it a
criminal offence.13
A. Marital rape is not violative of Articles 14 and 21 of the Indian Constitution:
1. Indian Constitution provides for equality before Law and equal protection of law.14
Similarly covenants provide that all are equal before law and are entitled without any
discrimination to equal protection of law.15
2. The Covenant on Economic Social and Cultural Rights 16 1966 and the Covenant in Civil
and Political Rights 1966, provides that State parties to these covenants undertake to ensure
equal rights for men and women, given under these covenants.
3. Article 15(3) of Indian Constitution is considered as an exception to general rule of
Article 14. If there is discrimination in favour of particular sex, it is permissible provided that the
classification is the result of other considerations beside the fact that the persons belonging to
that class are of a particular sex.
4. In Harvinder Kaur versus Harmander Singh17, the Delhi High Court stated that:
"Introduction of Constitutional Law in the home is most inappropriate, it is like introducing a
bull in a china shop. It will prove to be a ruthless destroyer of the marriage institution and all
that stands for. In the privacy of the home and the married life, neither Article 21 nor Article 14
has any place. In a sensitive sphere which is at once intimate and delicate, the introduction of the
cold principles of Constitutional Law will have the effect of weakening the marriage bond."
Constitutional law principles find no place in the domestic code. Atkin L. J. in a famous
judgment, said "The parties themselves are advocates, judges, courts, sheriff’s officer 'and
reporter. In respect of these promises each house is a domain, into which the king's writ does not
seek to run, and to which his officers do not seek to be admitted."18
13 Union Minister, Haribhai Parathibhai Chaudhary

14 Article 14, The Indian Constitution.
15 Article 7, Universal Declaration of Human rights, 1948.
16 Article 3, Covenant on Economic Social and Cultural Rights.
17 Harvinder Kaur vs. Harmander Singh Choudhry , AIR 1984 Delhi 66, ILR 1984 Delhi 546, 1984 RLR 187
18 Balfour v. Balfour (1919) 2 K.B. 571 (15)
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5. This illustrates that the house of everyone is to him his castle and fortress. The spouses can
claim sacred protection behind the door of the family home which, generally speaking, the civil
authority may not penetrate, introduction of constitutional Jaw into the ordinary domestic
relationship of husband and wife will strike at the very root of that relationship and will be a
fruitful source of dissension and quarrelling, it will open the door to unlimited litigation in,
relationship which should be obviously as far as possible protected from possibilities of that kind
of relationship.19
6. Thus, family and marriage being the most sacred institutions of all in a diverse country like
India should not be interfered in by any Constitutional law unless and until the circumstances so
demand. Article 14 and 21 of the Constitution are not violated by sexual relationship between
spouses. Sexual intercourse between spouses is a private matter and it should not be governed by
laws unreasonably.20
7. In the context of Article 21 an invasion of privacy must be justified on the basis of a law
which stipulates a procedure which is fair, just and reasonable. The law must also be valid with
reference to the encroachment on life and personal liberty under Article 21. An invasion of life or
personal liberty must meet the three-fold requirement of (i) legality, which postulates the
existence of law; (ii) need, defined in terms of a legitimate state aim; and (iii) proportionality
which ensures a rational nexus between the objects and the means adopted to achieve them.21
8. In the aforesaid judgement, several guidelines were also issues to place limits on the Right
to Privacy (also known as contours of privacy).22
19 Maitreyee Shukla, Term Paper: Family, Marriage and Kinship

20 id.
21 Justice K S Puttaswamy (Retd) v Union of India (“Puttaswamy”), (2017) 10 SCC 1.
22 Justice D. Y. Chandrachud in id.
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9. Several guidelines were also laid down for the said purpose such as protecting national
security, preventing investigating crime and preventing the dissipation of social welfare benefits. 23
10. Another concurring opinion also lists out the potential set of legitimate aims that may form
the grounds for reasonable restrictions such as other fundamental rights, legitimate national
security interests, public interest including scientific, historical or statistical purposes, prevention
of criminal offences.24
11. Under circumstances, a law depriving the citizen of his fundamental rights may be regarded
as “reasonable”.25
11. The counsel on behalf of the respondents submits that the marital rape exception is
proportionate and reasonable since legitimate aims of the state include preservation of marital
union, preventing frivolous litigation, protecting the family of the husband in case of false
accusations and thus preventing foreseeable riots in such cases.26
12. Also, it would lead to perjury and misleading claims in the nature of content of court
because often women may use it as a tool to harass men.27
13. Introduction of constitutional law in the home is most inappropriate, it is like introducing a
bull in a china shop, it will prove to be a ruthless destroyer of the marriage institution and all that
it stands for, the privacy of the home and the married life neither Article 21 nor Article 14, can
hamper with.28
14, If all sexual acts by a man with his own wife qualify to be marital rape, then the judgment
as to whether it is a marital rape or not will singularly rest with the wife.29
23 Supra note 10
24 Justice Sanjay Kishan Kaul in Supra note 10.
25 Narendra Kumar v Union Of India, AIR 1960 SC 430.
26 Ratanlal, Dhirajlal, The Indian Penal Code, Volume II.
27 Supra note 13.
28 Supra note 18.
29 RIT Foundation v Union Of India, W.P. (C) No.284/2015 (India).
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15. If there is discrimination in favour of particular sex, it is permissible provided that the
classification is the result of other considerations beside the fact that the persons belonging to that
class are of a particular sex.30
16. Discrimination is not permissible if it is done only on the ground of sex.31
17. It is considered that the concept of marital rape, as understood internationally, cannot be
suitably applied in the Indian context due to various factors, level of education, illiteracy, poverty,
myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as
a sacrament, etc. Ignorance of all these factors would also lead to a breach of public policy. 32
18. According to Malimath Committee Report once a complaint or FIR is lodged under such
sections 498A or 406 of Indian Penal Code, it becomes easy tool in the hands of the police to
arrest or threaten to arrest the husband and other relatives named in FIR without even
considering the intrinsic worth of allegations and making a preliminary investigation. 33
B. There has been no infringement of Article 19
1. In a landmark judgement, it was held by the apex court that Articles 14, 19 and 21 form a
coherent Golden Triangle, in such a manner that if the two of the aforementioned Articles are
not infringed, the third one is subsequently not infringed.34
2. In the instant matter, as established above, clearly, Article 14 and 21 are not infringed.
Hence, Article 19 is also not infringed.
C. There is a distinction between married and unmarried women:
30 Durga Das Basu, Commentary on the Constitution of India, (2007), Vol-I, p.986.
31 Vijaylakshmi Vs. Panjab University, AIR 2003 SC 3331.
32 Oxford Handbook of Public Policy.
33 Published in December 2011.
34 Maneka Gandhi v. Union of India, 1978 AIR 597.
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1. It is suggested that marital rape is not a serious crime since the victim does not suffer as
much as a non marital rape victim.35
2. While a married person’s in bodily integrity is not inconsiderable, there must be a balance
between the individual’s interest in private autonomy and the public policy favouring spousal
immunity.36
3. There is both a qualitative and quantitative difference between marital rape and non
marital rape.37
4. The fact that many gender-based stereotypes plague the Indian society was also
contemplated in a leading case upholding that laws of such nature are based on a false premise,
that women are a property of their husbands, also as sexually submissive and innocent, upon a
clear understanding of the truth behind this section will help to understand that the exception is
not arbitrary in nature.38
D. The said exception is not ‘manifestly arbitrary’
1. For scrapping various provisions, often the manifest arbitrariness principle is applied so
as to make sure whether these provisions are arbitrary per se.39
2. In a recent judgement, it has been held that it extends to invalidate statutes as well. 40
3. The marital rape exception is simply to preserve the marital union and this is, under no
conditions, manifest arbitrariness, hence it fails to fulfil the reasonability principle. 41
35 Michael G. Hilf, Marital Privacy and Spousal Rape, 16 New Eng. L. Rev.
36 Id.
37 id.
38 Joseph Shine v Union Of India, W.P. 194 of 2017.
39 Rajbala v State of Haryana, 1 SCC 463, (2016).
40 Navtej Singh Johar v. Union of. India, (2018) 1 SCC 791.
41 Supra note 20.
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4. The enactment cannot be struck down on the ground that Court thinks it unjustified.
Parliament and the Legislatures, composed as they are of the representatives of the people, are
supposed to know and be aware of the needs of the people and what is good and bad for them.
The Court cannot sit in judgment over their wisdom. In this connection, it should be remembered
that even in the case of administrative action, the scope of judicial review is limited to three
grounds, viz., (i) unreasonableness, which can more appropriately be called irrationality, (ii)
illegality and (iii) procedural impropriety.42
5. It cannot be said that it is not a case of reasonable classification having regard to the
object of legislation. Moreover, it is always open to the State to introduce prohibition in stages.
E.Fringe rights can be taken away by the State:
1. The concept of pith and substance doctrine is not unknown in the history of legal
intervention.43
2. In order to gage validity of the Act on the touchstone of Article 21, the scope of Article
21 had to be taken into consideration.44
3. The context of life which is to be taken away had to be considered.45
4. The core aspect could not be breached, any fringe right could be taken away.46
5. So while the principal aspect cannot be taken away, the fringe rights can be taken away
by the legislature.47
6. Conclusively, fringe rights which are incidental with respect to a main right can simply
be taken away.48
42 State of A.P. Vs. Mc. Dowell Company, AIR 1996 SC 1627.

43 Darshan Singh Balwant Singh and another v. The State of Punjab
44 Animal Welfare Board of India vs. A. Nagaraja and Others
45 The State of Bombay and another vs. F.N. Balsara
46 Supra note 36.
47 State of Uttar Pradesh and Others vs. Hirendra Pal Singh and Others
48 Arif Usman Kapadia vs the state of orissa
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7. In the instant matter, the incidental right is the right under Article 21 which is pleaded
by the petitioners herein and the main purpose of the legislation is to save the marital
association.
III. EXCEPTION II TO SECTION 375 OF THE INDIAN PENAL CODE,1960 IS

UNCONSTITUTIONAL IN NATURE
A. Ascertaining the value of evidence is difficult:
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1. The justification for spousal immunity in the form of RCR, is the criminalisation
of marital rape will lead to women filing false rape charges in order to gain leverage in
divorce and custody proceedings.49
2. Wife is not grihapatni but also dharampatni.50
3. Due to emergence of industrialized societies and result of social awareness
amongst people, especially in females about their right of equality and personal liberty, the
meaning of stability in the context of marriage has been changing gradually in different
span of times.51
4. Today the laws are such that a woman can easily misuse it for her purpose and
benefits.52
5. The effect of several similar laws53 is unjustified power in the hands of women 54
for blackmail and extortion in domestic disputes which irreparably damages the life of
husbands and their relatives and sometimes also becomes the reasons for their death.55
6. The practice says that real purpose of the women – related specifies laws are
misused and thereby husbands suffer for no fault.56
7. Even the presumption that DNA samples can render adequate proof is strongly
rebuttable, the reason being that the act cannot be proved as non consensual with the help
of DNA sample, thus the absence of medical record would not be of much consequence
if the other evidence on record is believable.57
B. Sexual intercourse and RCR go hand in hand:
49 Id.
50 Paras Diwan, Modern Hindu Law, (2007), p.63-64.
51 Prof. Ajay Kumar, “Institution Of Marriage-Judicial Approach”, AIR, January, p.6,( 2010)
52 Lalsa Mohini, “Legitimacy of Section 498A Of Indian Penal Code” Cri. LJ, Vol-117, April p.127, (2011) .
53 Domestic Violence Act, 2005.
54 Indian Penal Code section 498-A.
55 http:// www.498a org/legaltorture. html, 20 November 2010.
56 P.K. Das, Law relating to cruelty to husband, (2008), p.1.
57 Sheik Zakir v State of Bihar, 1983 AIR 911.
24 | P a g e

1. Parliament has extensively debated the issue of marital rape and considered that it was
not an offence of rape. Therefore, it cannot be considered as a criminal offence.58
2. Marriage without sex is an anathema, it is the foundation of marriage and without a
vigorous and harmonious sexual activity it would be impossible for any marriage to continue
for long. It cannot be denied that the sexual activity in marriage has an extremely favourable
influence on a woman’s mind and body. The result being that if she does not get proper sexual
satisfaction it will lead to depression and frustration. It has been said that the sexual relations
when happy and harmonious vivifres woman’s brain, develops her character and trebles her
vitality, it must be recognized that nothing is more fatal to marriage than disappointment in
sexual intercourse.59
3. Intercourse is an important part of the marital union and also forms an important part of
the conjugal rights an individual obtains upon marriage.60
4. According to a case a wife who refuses to have sexual intercourse with the husband
without giving any reason was proved as sufficient ground which amounts to cruelty against
husband.61
5. The World Health organization reports Lebanon and India as first ranking countries for
legal abuse of elders in India.62
6. In year 2005 there were 10491 cases which were not charge sheeted because of frivolous
grounds.63
7. Under false cases of section 498-A, an innocent woman is arrested every 23 minutes and
an innocent person is arrested every 5 minutes.64
8. Such laws not only affect men in general but the it `1Z is ironic that more than 5,000
innocent women get arrested under section 498-A, which has been projected as a law for
58 Independent Thought vs. Union of India (UOI) and Ors. WP (C) NO. 382 OF 2013.
59 Rita Nijhawan vs Balakishan Nijhawan, AIR 1973 Delhi 2009 (1973) DLT 222.
60 id.
61 Anil Bharadwaj Vs. Nimlesh Bharadwaj, AIR 1987 Del 111
62 http:/www.498a org/legaltorture. html, visited on 20th November 2010
63 id.
64 National Crime Record Bureau. 2006.
25 | P a g e

welfare of women, thus making not only the husband responsible but also affects adversely the
rest of his family members, under false cases of section 498-A, an innocent woman is arrested
every 23 minutes and an innocent person is arrested every 5 minutes.65
9. The fundamental rule of matrimonial law that one spouse is at liberty to the society and
comfort of the other spouse, forms the foundation of the right to bring a suit for the restitution
of conjugal rights. The court has the duty of granting a decree for restitution in the cases where
either spouse has abandoned or withdrawn from the society of the other.66
10. It must be noted that sexual relations are implicit within the entire concept of RCR.67
11. RCR is an inseparable concept for matrimonial cases. It must be dealt with in all
marriage cases diligently.68
C. Removal of the exception would amount to a presumption in favour of women:
1. It is well established that conviction cannot be based on such presumptions without

offence being proved beyond reasonable doubt.69
2. The amendments and Sec. 498-A of the Indian Penal Code (IPC) were also introduced
presupposing that only genuinely aggrieved women would lodge complaints and that they would
invariably tell the truth.70
3. As a concurring effect of the above, some victims of false cases formed associations and
expressed concern over the arrest of the accused husband, his family members and even remote
relatives without proper investigation, and money mongering by wife and her relatives led to
suicides by many men.71
65id.
66Paluck Sharma, INBA, Restitution of Conjugal Rights: A Comparative Study Among Indian Personal Laws.
67 Shrishti Borthakur, Legal Consequences of denying Conjugal Rights to your partner, Ipleaders.
68 id.
69 Balram Kumawat Vs. Union of India, AIR 1996 SC 2184.
70 id.
71 Id.
26 | P a g e

4. Even the Domestic Violence Act presumes guilt on the part of the man. 72 The law confers
right in a woman without imposing any liability, while a man is overburdened with discriminative
liabilities with total denial rights.73
5. Even if a proof is ascertained, it cannot lead to imprisoning of the husband since it is a
civil law by its very nature.
D.Intelligible Differentia Principle:
1. In order to judge the reasonableness of the restrictions, no abstract or general pattern or

a fixed principle can be laid down so as to be of universal application and the same will vary
from case to case as also with regard to changing conditions, values of human life, social
philosophy of the Constitution, prevailing conditions and the surrounding circumstances.74
2. There must be a direct and proximate nexus or a reasonable connection between the
restrictions imposed and the object sought to be achieved. If there is a direct nexus between the
restrictions and the object of the Act, then a strong presumption in favour of the
constitutionality of the Act will naturally arise.75
3. This court while dealing with the case of a total prohibition reiterated that 'regulation'
includes 'prohibition' and in order to determine whether total prohibition would be reasonable,
the court has to balance the direct impact on the fundamental right of the citizens as against the
greater public or social interest sought to be ensured.76
4. The courts, it is accepted, must presume that the legislature understands and correctly
appreciates the needs of its own people, that its laws are directed to problems made manifest
by experience and that its discriminations are based on adequate grounds.77
72Dr Avinash kumar, “Private violence, Public wrong & human reconceptualizing domestic violence in India, Cri, LJ,
Vol:116, p.278, September(2010.
73 Id.
74 Kavalappara Kottarathil Kochuni Vs. State of Madras and Kerala, (1960) 3 SCR 887.
75 O.K. Ghosh Vs. E.X. Joseph, 1963 Supp. (1) SCR 789.
76 Indian Handicrafts Emporium and Ors. v. Union of India and Ors., (2003) 7 SCC 589.
77 Mohd. Hanif Qureshi and Ors. v. State of Bihar and Ors., 1959 SCR 629.
27 | P a g e

28 | P a g e

_________________________________________________________________________
PRAYER
_________________________________________________________________________
In light of the issues raised, arguments advanced and authorities cited, the counsel for the
Petitioner humbly prays that the Hon’ble Court be pleased to adjudge, hold and declare;
1. That, the PIL is not maintainable.

2. That, the Exception II to Section 375 of the Indian Penal Code, 1860 is not violative of the
fundamental rights of the petitioners.
3. That, Exception II to Section 375 of the Indian Penal Code, 1860 is not unconstitutional.
29 | P a g e

And pass any order that this Hon’ble court may deem fit in the interest of equity, justice and
good conscience.
And for this act of kindness, the counsel for the respondent shall duty bound forever pray.
Sd/-
(Counsel for Respondent)
30 | P a g e

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TEAM CODE:

IN THE SUPREME COURT OF INDIA

Petition No. of 2019

(Under Article 32 of the Constitution of India)

Society for Women’s Rights NGO……………………….PETITIONER

Union Of India ………………….. ….…………………RESPONDENT

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

Most Respectfully Submitted before the Supreme Court of India

8th RGNUL NATIONAL MOOT COURT COMPETITION

I. That the PIL is not

A. Limited judicial intervention in matters …………...…………………..

B. No Fundamental rights have been infringed.……………………..…...

C. Alternate remedies have not been exhausted.……….

II. The fundamental rights of the petitioners have been

[MEMORIAL FOR THE RESPONDENT]

A. Marital rape is not violative of Articles 14 and 21 of the Indian

B. There has been no infringement of Article 19………………………………...

C. There is a distinction between married and unmarried women…………………………

D. The said exception is not ‘manifestly arbitrary’.............................................................

E. Fringe rights can be taken away by the state…………………………………………..

A. Ascertaining the value of evidence is difficult………………...…………………….

B. Sexual intercourse and RCR go hand in hand…………………………………………

C. Removal of the exception would amount to a presumption in favour of women………

D. Intelligible Differentia Principle………………………………………………..

[MEMORIAL FOR THE RESPONDENT]

1. State of Rajasthan v. Union of India, AIR 1977 SC 1361

[MEMORIAL FOR THE RESPONDENT]

[MEMORIAL FOR THE RESPONDENT]

A.2 High Court

A.3 Foreign Courts

1. Balfour v. Balfour (1919) 2 K.B. 571 (15)

[MEMORIAL FOR THE RESPONDENT]

[MEMORIAL FOR THE RESPONDENT]

“32. Remedies for enforcement of rights conferred by this Part-

The Respondent humbly submits to the same.

[MEMORIAL FOR THE RESPONDENT]

[MEMORIAL FOR THE RESPONDENT]

[MEMORIAL FOR THE RESPONDENT]

[MEMORIAL FOR THE RESPONDENT]

I, THAT THE PUBLIC INTEREST LITIGATION IS MAINTAINABLE

A. There shall be Limited judicial intervention in marital matters

The fundamental rights of the petitioners have been violated as:

A.Marital rape is not violative of Articles 14 and 21 of the Indian Constitution

B.There has been no infringement of Article 19.

C.There is a distinction between married and unmarried women.

III. EXCEPTION II TO SECTION 375 OF THE INDIAN PENAL CODE,1960 IS

A. Ascertaining the value of evidence is difficult

[MEMORIAL FOR THE RESPONDENT]

B. Sexual intercourse and RCR go hand in hand

C. Removal of the exception would amount to a presumption in favour of women

D. Intelligible Differentia Principle is fulfilled

[MEMORIAL FOR THE RESPONDENT]

I. THAT THE PUBLIC INTEREST LITIGATION IS NOT MAINTAINABLE

A.Limited judicial intervention in legislative matters:

1. The institution of marriage is an oldest social institution and provides a foundation

B. No fundamental rights of the petitioners have been infringed:

1 Misuse of Legal Protection, shodhganga.

[MEMORIAL FOR THE RESPONDENT]

C.Availability of alternate remedies

The Protection Of Women From Domestic Violence Act, 2005