Before The Hon'Ble Supreme Court of India: Team Code: Tc-71R 8 Rgnul National Moot Court Competition, 2019

TEAM CODE: TC-71R
8th RGNUL NATIONAL MOOT COURT COMPETITION, 2019
BEFORE
THE HON’BLE SUPREME COURT OF INDIA
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA, 1950)
IN THE MATTER OF
SOCIETY FOR WOMEN’S RIGHT’S............................................................PETITIONER
VERSUS
UNION OF INDIA...........................................................................................RESPONDENT
BEFORE SUBMISSION TO
THE HONOURABLE CHIEF JUSTICE AND HIS COMPANION JUSTICE OF THE
HONOURABLE SUPREME COURT OF INDIA
WRITTEN SUBMISSION ON BEHALF OF RESPONDENT

8th RGNUL NATIONAL MOOT COURT COMPETITION, 2019 TEAM CODE: TC-71
TABLE OF CONTENTS
S. NO. PARTICULARS PAGE NO.
1. LIST OF ABBREVIATIONS 4
2. INDEX OF AUTHORITIES 5
3. STATEMENT OF JURISDICTION 11
4. STATEMENT OF FACTS 12
5. ISSUES RAISED 13
6. SUMMARY OF ARGUMENTS 14
7. ARGUMENTS ADVANCED 16-34
ISSUE I: THAT SEXUAL INTERCOURSE WITHOUT THE 16

WIFE’S CONSENT IS RAPE U/S 375 OF IPC OR NOT AND
WHETHER IT IS VIOLATIVE OF ARTICLE 14, OF THE
CONSTITUTION?
ISSUE II: THAT THERE ARE MANY OTHER ALTERNATIVES 22

UNDER WHICH THE WOMEN CAN COMPLAIN AND GET
REMEDIES
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MEMORIAL ON BEHALF OF RESPONDENT
26
ISSUE III : THAT THE PERSONAL LIBERTY OF A WIFE
UNDER ART.21 IS NOT ABSOLUTE AND IS SUBJECT TO
RESTRICTIONS IMPOSED BY THE MATRIMONIAL PRIVACY
31
ISSUE IV : THAT THE DENIAL OF SEX TO HUSBAND LEADS

TO CRUELTY……
8. PRAYER 35
3|Page
LIST OF ABBREVIATIONS
S.NO ABBREVIATIONS FULL FORM
1. ¶ Paragraph
2. § Section
3. & And
4. AIR All India Reporter
5. Art. Article
6. Anr. Another
7. CrPC Code of Criminal Procedure
8. HC High Court
9. Hon’ble Honourable
11. IPC Indian Penal Code
12. NGO Non-Governmental Organization
13. Ors. Others
14. SC Supreme Court
15. SCR Supreme Court Reporter
16. U.O.I Union Of India
17. U.S United States
18. v. Versus
19. CrLJ Criminal Law Journal
INDEX OF AUTHORITIES
4|Page
1. XB S Joshi v. State of Haryana, (2003) Cr LJ 2028 (SC) (India).;...........................29

2. Bhartiben Bipinbhai Tamboli v. State of Gujarat, Special Criminal Application (DV)
No.5672 of 2016. (Gujarat HC). (India)...................................................................28
3. Chetan Dass v. Kamla Devi reported in (2001) 4 S.C.C. 250 (India).......................31
4. Deepak Bajaj v. State, (2008) 16 S.C.C. 14; (India).................................................27
5. Harvender Kaur v. Harmander Singh Choudhary, A.I.R. 1984 Del. 66. (India).......29
6. K Prema S Rao v. YadlaSrinivasa Rao (2003) 1 S.C.C. 217 (India)........................29
7. K.B. Nagur, MD (Ayurveda) v. UOI, A.I.R. 2012 S.C. 1774. (India)......................26
8. K.K.Baskaran v. State of T.N, A.I.R. 2011 S.C. 1485 (India).;................................26
9. Mehmood Nayyar Azam v. State of Chattisgarh, A.I.R. 2012 S.C. 2573 (India).....27
10. Mr.X v. Hospital Z, (1998) 8 S.C.C. 296. (India).....................................................27
11. Om Prakash Chautala v. Kanwar Bhan, A.I.R. 2014 S.C. 1220 (India)...................28
12. Parveen Mehta v. Inderjit Mehta reported in (2002) 5 SCC 706 (India)..................31
13. Parveen Mehta Versus Inderjit Mehta reported in 2002 (2) H.L.R. 513 (SC) (India).
..................................................................................................................................30
14. R. Rajagopal v. State of Tamil Nadu, A.I.R. 1995 S.C. 264 (India).........................26
15. Rita Nijhawan vs. Balkishan Nijhawan A.I.R. 1973 Delhi 200 (India)....................32
16. Rita V. Balkrishan Nijhawan, A.I.R. 1973 Del 200 (India)......................................30
17. Samar Ghosh vs Jaya Ghosh (2007) 4 S.C.C. 511 (India)........................................32
18. Samayne’s, (1604) 5 Co Rep 91a.............................................................................27
19. Shankuntla Kumari vs. Om Prakash Ghai (AIR 1983 Delhi 53) (India)..................31
20. Sheldon Versus Sheldon {(1966) 2 All England Reported 257}..............................32
21. Sirajmohmedkhan Janmohamadkhan v. Haizunnisa Yasinkhan & Anr. (1981) 4
S.C.C. 250 (India).....................................................................................................32
22. State of Bihar v. Lal Krishna Advani, A.I.R. 2003 S.C. 3357. (India).....................27
23. State of M.P. v. RakeshKohli, A.I.R. 2012 S.C 2351 (India).;..................................26
24. State of Maharashtra v. Public Concern for Government Trust, (2007) 3 S.C.C. 587.
(India).......................................................................................................................27
25. State of W.B v. Kesoram Industries, A.I.R. 2005 S.C. 1646 (India).........................26
26. Subramanian Swamy v. Director, C.B.I , A.I.R. 2014 S.C. 2140 (India).................26
27. Susarla Subrahmanya Sastry vs. Padmakshi II (2005) D.M.C. 707 (DB) (India)...33
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..................................................................................................................................30
45. Samayne’s, (1604) 5 Co Rep 91a.............................................................................27
S.C.C. 250 (India).....................................................................................................32
(India).......................................................................................................................27
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..................................................................................................................................30
72. Samayne’s, (1604) 5 Co Rep 91a.............................................................................27
S.C.C. 250 (India).....................................................................................................32
(India).......................................................................................................................27
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LITERATURE REFERRED:
 COMMENTARIES ON INDIAN PENAL CODE:
1. RATANLAL &DHIRAJLAL’S LAW OF CRIMES – A Commentary on The Indian

Penal Code, Vol. I, Bharat Law House, Delhi, 27th End. 2013.
2. RATANLAL &DHIRAJLAL'S LAW OF CRIMES – A Commentary on The Indian
Penal Code, Vol. II, Bharat Law House, Delhi, 27th Edn. 2013.
3. JUSTICE V. V. RAGHVAN, LAW OF CRIMES, India Law House, New Delhi, 5th
Edn. 2001.
4. K I VIBHUTI, P.S.A PILLIA'S CRIMINAL LAW, Lexis Nexis, 12th Edn. 2014.
5. DR. (Sir) HARI SINGH GOUR, PENAL LAW OF INDIA, Law Publishers (India)
Pvt. Ltd., 11th Edn. 2014.
6. J C SMITH, SMITH AND HOGAN CRIMINAL LAW – Cases and Materials,
LexisNexis Butterworth’s, 8th Edn. 2002.
7. BASU'S INDIAN PENAL CODE (Law of Crimes), Vol. I., Asoka Law House, 11th
Edn. 2011.
8. S.K. SARVARIA, R.A. NELSON’S INDIAN PENAL CODE (9th ed. Lexis Nexis
Butterworths Gurgaon 2002).
9. M.P. TANDON, THE INDIAN PENAL CODE (23th ed. Allahabad Law Agency,
Faridabad 2005).
10. RAM JETHMALANI & D.S. CHOPRA, 2 THE INDIAN PENAL CODE (1st ed.
Thomson Reuters, Legal, New Delhi 2014).
 COMMENTARIES ON CONSTITUTIONAL LAW:
1. M.P. JAIN, INDIAN CONSTITUTIONAL LAW (6th ed. Lexis Nexis Butterworths
Wadhwa, Nagpur 2010).
2. DURGA DAS BASU, 1 COMMENTARY ON CONSTITION OF INDIA (8th ed.
Wadhwa and Company Nagpur 2007).
3. DR. SUBHASH C. KASHYAP, 2 CONSTITUTIONAL LAW OF INDIA (Universal
Law Publishing Pvt. Ltd., New Delhi 2008).
8|Page
STATUTES REFERRED:
1. INDIAN PENAL CODE, 1860.
2. THE CONSTITUTION OF INDIA, 1949.
3. THE INDIAN EVIDENCE ACT, 1872.
4. THE CODE OF CRIMINAL PROCEDURE, 1973.
DICTIONARIES REFERRED:
1. BRYAN A. GARNER, BLACK’S LAW DICTIONARY (8th ed. 2001).
2. OXFORD ENGLISH DICTIONARY (2nd ed. 2009).
3. P. RAMAPHARYAN, LAW LEXCION, (4th ed. 2017)
4. WEBSTER’S NEW INTERNATIONAL DICTIONARY
LEGAL DATABASES:
1. MANUPATRA.
2. SCC ONLINE.
3. LAWFINDER.
WEBSITES REFERRED:
1. http://www.manupatra.com
2. http://www.judis.nic.in
3. http://ncrb.nic.in
4. http://www.scconline.com
5. http://www.airwebworld.com
6. http://www.jstor.com
7. http://www.lexusnexus.com/in/l
REPORTS
1. 42nd Report of Fifth Law Commission of India, 1971
2. 156th Report of Fourteenth Law Commission of India, 1997
3. 172nd Report of Fifteenth Law Commission of India, 2000
9|Page
OTHER SOURCES
1. Constitutional Assembly Debates: Official Reports Vol.VII: Nov. 4, 1948
2. Wharton’s Law Lexicon, 15th Edn. 2009
3. Encyclopaedia Britannica Online, "Adultery"
4. K.I. Vibhute, 'Rape' and the Indian Penal Code at the Crossroads of the New
Millennium: Between Patriarchist and Gender Neutralist Approach", Journal of the
Indian Law Institute (January-March 2001, In Press)
5. Yogyakarta Principles
6. International Conventions
STATEMENT OF JURISDICTION
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The petitioners had approached the Hon’ble Supreme Court of India under Article 321 of the
Constitution of India, 1950 and the respondent humbly submits to the jurisdiction.
STATEMENT OF FACTS
 Nidhi and Subodh, aged 22 and 24 respectively, have been live-in partners since 2017
and love each other.
1 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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 They have been live-in partners since 2017 and love each other.
 Their parents were against them marrying each other. However, both of them
managed to convince their parents that this was the perfect match for them.
 In December 2018, Nidhi and Subodh tied the knot as per the Hindu rituals and
customs.
 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 that Subodh had begun to be a more
dominating figure.
 One day, Nidhi was watching a debate show on television on the topic of marital rape.
 A few of the panellist argued that Exception II to 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
 Society for Women’s Rights 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
 A Public Interest Litigation was filed by the NGO before the Hon’ble Supreme Court
of India with respect to the violation of fundamental rights of married women of all
ages in the form of marital rape.
 The PIL also challenges the constitutional validity of Exception II to Section 375 of
the Indian Penal Code, 1860.
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ISSUES RAISED
…………………………………….……. ISSUE 1……….……….………………………….
THAT SEXUAL INTERCOURSE WITHOUT THE WIFE’S CONSENT IS RAPE U/S

375 OF IPC OR NOT AND WHETHER IT IS VIOLATIVE OF ARTICLE 14, OF THE
CONSTITUTION?
…………………………………….……. ISSUE 2……….……….………………………….
THAT THERE ARE MANY OTHER ALTERNATIVES UNDER WHICH THE

WOMEN CAN COMPLAIN AND GET REMEDIES
…………………………………….……. ISSUE 3……….……….………………………….
THAT THE PERSONAL LIBERTY OF A WIFE UNDER ART.21 IS NOT ABSOLUTE

AND IS SUBJECT TO RESTRICTIONS IMPOSED BY THE MATRIMONIAL
PRIVACY
…………………………………….……. ISSUE 4……….……….………………………….
THAT THE DENIAL OF SEX TO HUSBAND LEADS TO CRUELTY
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SUMMARY OF ARGUMENTS
1. THAT SEXUAL INTERCOURSE WITHOUT THE WIFE’S CONSENT IS RAPE

U/S 375 OF IPC OR NOT AND WHETHER IT IS VIOLATIVE OF ARTICLE 14, OF
THE CONSTITUTION?
 It is humbly submitted before this Hon’ble court that sexual intercourse without wife’s
consent is not rape. Section 375 IPC nowhere specifies or demonstrates the term ‘sexual
intercourse without wife’s consent.’
 Thus, it is humbly submitted in the light of these judgments that identical treatment
cannot be given to a married and unmarried woman. Moreover, if forceful intercourse will
be termed as rape it will arbitrarily be against the men being violative of Art. 15 of the
constitution. Therefore, it is humbly submitted before this Hon’ble bench that Section 375
of IPC draws a reasonable classification between married and the unmarried women.
Thus, it is not violative of Art. 14 of the Constitution of India.
2. THAT THERE ARE MANY OTHER ALTERNATIVES UNDER WHICH THE

WOMEN CAN COMPLAIN AND GET REMEDIES
 It is most humbly submitted before this honourable court that by declaring this very
exemption clause as being violative of fundamental and human rights is not the sole
option to be relied upon. Article 15(3) of the constitution of India states that “Nothing in
this article shall prevent state from making any special provision for women and
children.”
 It is pertinent to note that there are various constraints due to which the exemption clause
is not being criminalised and also there are various other alternative remedies available
under which aggrieved women can seek protection.
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3. THAT THE PERSONAL LIBERTY OF A WIFE UNDER ART.21 IS NOT

ABSOLUTE AND IS SUBJECT TO RESTRICTIONS IMPOSED BY THE
MATRIMONIAL PRIVACY.
 It is most humbly submitted to the Hon’ble Court that marital rape is not rape u/s 375 of
IPC and exception 2 to section 375 of IPC, does not violate Article 21 of the Constitution
of India. Article 21 is of great importance because it enshrines the fundamental right to
individual liberty, but at the same time balance has to be struck between the right to
individual liberty and the interest of society. No right can be absolute and reasonable
restrictions can be placed on them.2
 The exception 2 to Sec. 375 is constitutionally valid as the same has been framed to
protect the institution & sanctity of marriage and to protect innocent husbands from
malicious litigations. This provision has been inserted on the basis of reasonable
classification and it satisfies the test of constitutionality.
4. THAT THE DENIAL OF SEX TO HUSBAND LEADS TO CRUELTY
 It is most humbly submitted before this honourable court that a wife by denying sex to her
husband and by not satisfying her and not fulfilling her marital obligations leads to
cruelty to husband.
 There is nothing more fatal to a marriage than disappointment in sexual inter-course. To

force a husband to such sexless life, which inevitably damages the physical as well as
mental health is nothing, but cruelty.
2Rajesh Rajan v. C.B.I., (2007) 1 S.C.C. 70 (Indian).
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ARGUMENTS ADVANCED
MOST RESPECTFULLY SHOWETH:
1. WHETHER SEXUAL INTERCOURSE WITHOUT THE WIFE’S CONSENT IS

RAPE U/S 375 OF IPC OR NOT AND WHETHER IT IS VIOLATIVE OF
ARTICLE 14, OF THE CONSTITUTION?
1.1 It is humbly submitted before this Hon’ble court that sexual intercourse without wife’s
consent is not rape. Section 375 IPC nowhere specifies or demonstrates the term ‘sexual
intercourse without wife’s consent.’
1.2 Therefore, rape u/s 375 is constituted only if the act falls under the seven exceptions of
the offence. Firstly, against her will; Secondly, without her consent; Thirdly, when her
consent is obtained by putting fear of death in her; Fourthly, when the consent is given
under the belief that another man is her lawfully married husband; Fifthly, when consent
given by the reason of unsoundness of mind or intoxication etc.; Sixthly, with or without
her consent, when she is under 16 years of age and Seventhly, when she is unable to
convey her consent.
1.3 Moreover, while convicting a person u/s 375 of the IPC the two essential ingredients of
Section 375 should be fulfilled as was observed by the court in the case of Suo Moto v.
State of Rajasthan,3 that there are two essential ingredients of rape under Section 375
IPC. Firstly, sexual intercourse by a man with a woman and secondly, the sexual
intercourse must be under circumstances falling under any of the six clauses in this
section.
1.4 THAT IT DOES NOT VIOLATE ART. 14 OF THE CONSTITUTION OF INDIA
1.4.1 It is humbly submitted before this Hon’ble court that Article 14 provides the right to
equality and equal protections of the laws to every person within the territory of India.
Article 14 is considered to be a part of the Golden triangle of the Constitution of India
and is a fundamental right that stands above the rest.4
3Suo Moto v. State of Rajasthan, 2005 (4) INDIA.L.C. 163 (India).
4Ashok Kumar Thakur v. U.O.I, (2008) 6 S.C.C. 1 (India).
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1.4.2 Therefore, no person within the territory of India can be denied the “right to equality”
and the enjoyment of “equal protection of laws.” The point to be noted is that the
principle of equality does not mean that every law must have universal application for
all5 who are not by nature, attainment or circumstances, in the same position as the
varying needs of different classes of persons often require separate treatment.
1.4.3 Our Constitution is wedded to the concept of Equality which is the basic feature of the
Constitution and is a fundamental postulate of Republicanism. 6Equality clause
embodied in Article 14, does not speak of mere formal Equality before the law but is a
dynamic concept with many aspects and dimensions and it cannot be imprisoned
within the traditional and doctrinaire limits Article 14, Article 19 and Article 21 must
be read together.7
1.4.4 It has been observed by the Hon’ble SC in the case of Delhi Development Authority v.
Joint Action Committee,8 that Article 14 is the heart and soul of the constitution.
Article 14 guarantees to all persons in our country equality before the law and equal
protection of the laws, which only means that all persons are equally and have a right
to equal protection.9
1.4.5 Moreover, the wording used in Article 14 suggests that right to equal protection of law
is absolute. But, in reality, it is not so. It is now well established by a catena of
decisions of the Hon’ble Supreme Court that it is subject to reasonable classification.10
1.4.6 It was observed by the Hon’ble SC in the case of Anita Kushwaha v. Pushpa Sudan11
that, “Equal protection of laws is not limited in its application to the realm of
executive action that enforces the law-it is as much available in relation to the
proceedings before courts and tribunal and adjudicatory or where law is applied and
5Kedarnath v. State of INDIA.B, A.I.R. 1953 S.C. 404 (406) (India).
6Indira Nehru Gandhi v. Raj Narain, A.I.R. 1975 S.C. 2299 (India).
7Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597 (India).
8Delhi Development Authority v. Joint Action Committee, (2008) 2 S.C.C. 672 (India).
9Narain Das v. Improvement Trust (1973) 2 S.C.C. 265 (India).
10E P Royappav v. State of Tamil Nadu, A.I.R. 1974 S.C. 555 (India).
11Anita Kushwaha v. Pushpa Sudan, (2016) 8 S.C.C. 509 (India).
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justice is administered. Equality clause forbids discrimination and not

classification.”12
1.4.7 The right of equality of treatment applies only to equals and not unequal’s. 13 Article
14 has inbuilt flexibility and it also permits different treatment to unequal’s as it only
prohibits discrimination amongst the equals.14The principle does not take away from
the state the power of classifying persons for legitimate purposes. 15Equality clause is
India to secure socio-economic justice to people. Courts are duty bound to give shape
and offer reality to socialistic concept.16
1.4.8 It is humbly submitted before this Hon’ble bench that Section 375 of the IPC
classifies women into two categories-married women and unmarried women. Art. 14
prohibits class legislation and not reasonable classification for the purposes of
legislation.17 If the legislature takes care to reasonably classify persons for legislative
purposes and if it deals equally with all persons belonging to a well-defined class, it is
not open to the charge of denial of equal protection on the ground that the law does
not apply to other persons.18
1.4.9 In order to determine the reasonability of the classification it has to fulfil the test of
reasonability laid down by the Hon’ble SC in the case of Deepak Sibbal v. Panjab
University.19The Hon’ble SC laid down two conditions, namely: -
(i) That the classification must be founded on an intelligible differentia.
(ii) That the differentia must have a rational nexus to the object sought to be achieved
by the state in question.
12State of Bihar v. Bihar State +2 lectures Association, A.I.R. 2007 S.C. 1942 (India).
13U.O.I. v. Ram Gopal Verma, A.I.R. 1998 S.C. 783 (India).
14M.P. Oil Extractions v. State of M.P, A.I.R. 1998 S.C. 145 (India).
15Chiranjitlal v. U.O.I, (1950) S.C.R 869. (India).
16Secretary, Haryana State Electricity Board v. Suresh, A.I.R. 1999 S.C. 1160 (India).
17Budhan v. State of Bihar (1955) 1 S.C.R 1045 (India).
18State of INDIA.B v. Anwar Ali (1952) S.C.R 284 (India).
19Deepak Sibbal v. Panjab University, (1989) 2 S.C.C. 145 (India).
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1.4.10 What is necessary is that there must be a nexus between the basis of classification and
the object of the act under consideration.20It is pertinent to note in the case at hand that
the classification India to maintain the sanctity of the institution of marriage.
Therefore, the classification drawn by 375 is reasonable in nature because the
classification is real and substantial and bears some just and reasonable relation to the
object of the legislation.21It is humbly submitted that the classification between
married and unmarried women is reasonable in nature as there is an intelligible
differentia between the classifications based on procurement of the evidence.
1.4.11 ‘Equal protection of law’ does not mean that the same law should be made applicable
to all persons or that every law must have universal application irrespective of
difference of circumstances.22 The Hon’ble Supreme Court observed that Article 14
does not operate against rational classification.23 Mere differentiation or inequality of
treatment does not reason to attract the vice of Article 14 of the Constitution. 24 It was
held by the Hon’ble Supreme Court that a reasonable classification is inherent in the
very concept of equality, because all the persons living on this earth are not alike and
have different problems.25
[¶ 1]. Moreover, it would become impossible to find the evidence to make out the offence of
rape. The point to be considered is that any sexual act done by a husband with her
wife is done behind the closed doors. Moreover, it was observed by the Hon’ble SC in
the case of Savitri Pandey v. Prem Chand Pandey,26that cohabitation by husband and
wife is an essential feature of valid marriage.
[¶ 2]. In Rita das Biswas v. Trilokesh Das Biswas,27 it was held that co-habitation is an
essential ingredient for a valid marriage. The point to be taken into consideration is
20Tulsipur Sugar Co. v. Govt of U.P, A.I.R. 1987 S.C. 443 (India).
21Ameeronisa v. Mahboob (1953) S.C.R 404 (India).
22Jagannath Prasad v. State of U.P, A.I.R. 1961 S.C. 1245 (India).
23Western U.P. Electric Power v. State of U.P, A.I.R. 1970 S.C. 21 (India).
24Jaila Singh v.State of Rajasthan, A.I.R. 1975 S.C. 1436 (India).
25Pathumma v. State of Kerala, A.I.R. 1978 S.C. 771 (India).
26Savitri Pandey v. Prem Chand Pandey, (2002) 2 S.C.C. 73 (India).
27Rita Das Biswas v. Trilokesh Das Biswas, A.I.R. 2007 Gau. 122 (India).
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that procuring any evidence except the testimony of the prosecutrix, will become
impossible. The Hon’ble SC has observed in plethora of cases that the statement of
the prosecutrix holds a very high evidentiary value and is sufficient to convict a
person. As was observed by the Hon’ble SC in the case of Uday v. State of
Karnataka,28that the medical evidence of a girl or a woman who complains of rape or
sexual molestation should not be viewed with doubt, disbelief or suspicion.
[¶ 3]. Moreover, it was observed by the Hon’ble SC in the case of Garg v. U.O.I.,29that the
reasonableness is to be judged with reference to the object of the legislation and not
moral considerations.
[¶ 4]. In all cases where the material adduced before the court in matters relating to Art. 14
is unsatisfactory, the court may have to allow the state to lean on the doctrine of initial
presumption of constitutionality.30 There is always a presumption in favour of the
Constitutionality of an enactment and the burden is upon the person, who attacks it, to
show that there has been a clear transgression of the Constitutional principles. 31 It
must be presumed 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 discrimination are based on adequate grounds.32
[¶ 5]. The Courts always lean against a construction, which reduces the Statute to a futility.
A Statute or any enacting provision therein, it is said, must be so construed as to make
it effective and operative on the principle expressed in the maxim “ut res magisvaleat
quam pereat.”33Thus, it is humbly submitted that the legislature after taking into
consideration the needs and ethos of the society has inserted the Exception in the
impugned Section. It is further humbly submitted that criminalizing such a private
affair between a married couple will go against the interests of the society at large.
[¶ 6]. It is always observed that there is a presumption in the constitutionality of an
enactment, since it is assumed that the legislature understands and correctly
28Uday v. State of Karnataka, (2003) 4 S.C.C. 46 (India).
29Garg v. U.O.I., A.I.R. 1981 S.C. 2138 (India).
30Ratnaporva Devi v. State of Orissa (1964) 6 S.C.R 301 (India).
31Subramanian Swamy v. Director, C.B.I., A.I.R. 2014 S.C. 2140 (India).
32The Rule was enunciated by the American Supreme Court in Middleton v. Texas Power & L. Company, (248
U.S. 152) quoted in Government of A.P. v. P.L. Devi, A.I.R. 2008 S.C. 1640 (India).
33Saurabh Chaudri v. Union of India, A.I.R. 2004 S.C. 361 (India).
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appreciates the needs of its own people, that its laws are directed to problems made
manifest by experience and its discriminations are based on adequate grounds.34
[¶ 7]. All that Article 14 guarantees is a similarity of treatment and not identical treatment.
It does not prohibit reasonable classification. 35 The concept of Equality before law
does not involve the idea of absolute equality amongst all. All that Article 14
guarantees is the similarity of treatment and not identical treatment. 36 The principle of
equality would not mean that every law must have universal application for all
persons who, by nature, attainment or circumstances, are in the same position. 37 If the
legislature reasonably classifies persons for legislative purposes so as to bring them
under a well- defined class, it is not open to challenge on the ground of denial of equal
treatment that the law does not apply to other persons.38
[¶ 8]. Thus, it is humbly submitted in the light of these judgments that identical treatment
cannot be given to a married and unmarried woman. Moreover, if forceful intercourse
will be termed as rape it will arbitrarily be against the men being violative of Art. 15
of the constitution. Therefore, it is humbly submitted before this Hon’ble bench that
Section 375 of IPC draws a reasonable classification between married and the
unmarried women. Thus, it is not violative of Art. 14 of the Constitution of India.
34State of M.P. v. Nandlal, A.I.R. 1987 S.C. 251 (India).
35K.R. Lakshman v. Karnataka Electricity Board, (2001) 1 S.C.C. 442 (India).
36Ashutosh Gupta v. State of Rajasthan, (2002) 4 S.C.C. 34 (India).
37Heena Kausar v. Competent Authority, (2008) 14 S.C.C. 724 (India).
38State of A.P. v. Nallamilli, (2001) 7 S.C.C. 708 (India).
21 | P a g e
2. THAT THERE ARE MANY OTHER ALTERNATIVES UNDER

WHICH THE WOMEN CAN COMPLAIN AND GET REMEDIES
2.1 It is most humbly submitted before this honourable court that by declaring this very
exemption clause as being violative of fundamental and human rights is not the sole
option to be relied upon. Article 15(3) of the constitution of India states that “Nothing in
this article shall prevent state from making any special provision for women and
children.”
2.2 There are many other laws and acts under which the women can complain and get
protection and remedy for any sought of physical spousal violence and abuse.
2.3 “It is considered that the concept of marital rape, as understood internationally, cannot
be suitably applied in the Indian context due to various factors, including level of
education, illiteracy, poverty, myriad social customs and values, religious beliefs, the
mindset of the society to treat the marriage as a sacrament,” said Haribhai Parthibhai
Chaudhary, a Union minister, in a written reply in the Parliament, in 2015.
2.4 It argued there can be no lasting evidence in case of sexual acts between a man and his
wife. “If all sexual acts by a man with his wife qualify as marital rape, then the judgment
as to whether it is marital rape or not will singularly rest with the wife. The question is
what evidences the courts will rely upon in such circumstances as there can be no lasting
evidence in case of sexual acts between a man and his wife,” the affidavit, filed before a
division bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar, said.
2.5 PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005
2.5.1 The objective of this act was An Act to provide for more effective protection of the
rights of women guaranteed under the Constitution who are victims of violence of any
kind occurring within the family and for matters connected therewith or incidental
thereto.
2.5.2 Section 3(1) of the act provides that, “any act, omission or commission or conduct of
the respondent shall constitute domestic violence in case it - (a) harms or injures or
endangers the health, safety, life, limb or well-being, whether mental or physical, of
22 | P a g e
the aggrieved person or tends to do so and includes causing physical abuse, sexual
abuse, verbal and emotional abuse and economic abuse;
2.5.3 Also, an aggrieved woman may file an application to the magistrate under section 12
of the act which provides that 1) An aggrieved person or a Protection Officer or any
other person on behalf of the aggrieved person may present an application to the
Magistrate seeking one or more reliefs under this Act.
2.5.4 In the case of Krishna Bhatacharjee v. Sarathi Choudhury and Another39, the apex
court gave guidelines that It is the duty of the Court to scrutinise the facts from all
angles whether a plea advanced by the respondent to nullify the grievance of the
aggrieved person is really legally sound and correct.
2.5.5 In the case of Juveria Abdul Majid Patni v. Atif Iqbal Mansoori and Anr.40, it was
stated that in case any domestic violence, any relief available under the act will be
provided to the aggrieved person.
2.5.6 Also Section 31 of the act provides for Penalty for breach of protection order by
respondent. It states that “1) A breach of protection order, or of an interim protection
order, by the respondent shall be an offence under this Act and shall be punishable
with imprisonment of either description for a term which may extend to one year, or
with fine which may extend to twenty thousand rupees, or with both.”.
2.6 REMEDY AVAILABLE UNDER SECTION 498A OF THE INDIAN PENAL CODE,
1860
2.6.1 This Section provides for 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.
39 Krishna Bhatacharjee v. Sarathi Choudhury and Another CRIMINAL APPEAL NO. 1545 OF 2015 (India).
40 Juveria Abdul Majid Patni v. Atif Iqbal Mansoori and Anr.( Criminal Appeal No. 2069 of 2014), (India).
23 | P a g e
2.6.2 In the case of Rajesh Sharma and Ors vs State of UP 41, The myth is that
Section 498A is a brahmastra in the hands of the wife, which was to
be deployed to settle petty matrimonial scores.
2.7 REMEDY AVAILABLE UNDER SECTION 377 OF THE INDIAN PENAL CODE,
1860
2.7.1 This section provides for Unnatural offences—Whoever voluntarily has carnal inter-
course against the order of nature with any man, woman or animal, shall be punished
with 1[imprisonment for life], or with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine. Explanation.
Penetration is sufficient to constitute the carnal intercourse necessary to the offence
described in this section.
2.8 MEDICAL RECORD SHOULD BE USED FOR DETERMINATION THAT THE

SEXUAL INTERCOURSE WAS CONSENSUAL OR NOT ?
2.8.1 How can you prove that the act was non-consensual using DNA samples as evidence?
The answer is in the judgment of Supreme Court in Sheik Zakir vs State of Bihar 42,
where it ruled that the absence of a medical record would not be of much consequence
if the other evidence on record is believable.
2.8.2 Even so, Akila RS, a lawyer based in Chennai, points out the relevance of medical
evidence in cases of marital rape too. “A history of physical violence, results of a
rape-kit and medical examination of the wife, witness testimony and possible
admission of the husband in electronic communications could be ample evidence to
prove his guilt,” she says. A timely medical examination can differentiate between
consensual sex and forced sex.
2.8.3 “Yes, there is some difficulty in the criminal jurisprudence here, but we have to
develop it. And at least, in cases where there is enough proof for proving marital rape,
the law will help punish the husbands,” says Akila
41 Rajesh Sharma and Ors vs State of UP Special Leave Petition (Crl.) No.2013 of 2017] (India).
42 Sheik Zakir vs State of Bihar (1983 A.I.R. 911, 1983 S.C.R. (2) 312) (India).
24 | P a g e
2.8.4 Those of us arguing for criminalising marital rape are not asking for a ‘special
provision’ for married women. What we are asking for is the removal of special status
accorded to some rapists. There cannot be ‘good rape’ and ‘bad rape’; there cannot be
gradations based on the relationship between the victim and the perpetrator.
2.9 SUBMISSIONS OF UNION GOVERNMENT
2.9.1 Marital rape is not defined in any statue/ laws. While rape is defined under Section
375 of IPC, defining marital rape would call for a broad based consensus of the
society. What may appear to be marital rape to an individual wife, it may not appear
so to others. As to what constitutes marital rape and what would constitute marital non
rape needs to be defined precisely before a view on its criminalization is taken.
2.9.2 That it has to be ensured adequately that marital rape does not become a phenomenon
which may destabilize the institution of marriage apart from being an easy tool for
harassing the husbands. The Supreme Court and various High Courts have already
observed the rising misuse of section 498A of IPC
2.9.3 If all sexual acts by a man with his own wife will qualify to be a marital rape,
judgment as to whether it is a marital rape or not will singularly rest with the wife.
The Question is what evidences the Courts will rely upon in such circumstances as
there can be no lasting evidence in case of sexual acts between a man and his own
wife.
2.9.4 That the Law Commission in its 172 Report titled Review of Rape Laws and the
Department Related Parliamentary Standing Committee on Home Affairs in its 167th
Report examined the matter and did not recommend the criminalization of marital
rape
2.9.5 The 172nd report of Law Commission running into seven chapters devotes one
paragraph and one sentence in that paragraph to summarily reject the demand to
criminalise marital rape. Again the 136-page 167th report of Parliamentary Committee
on Home Affairs restricts its views to a few sentences and concludes, with circular
reasoning, in this age of nuclear families, “that institution of family is able to resolve
the problems”.
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2.9.6 That the fact that other countries, mostly western, have criminalized marital rape does
not necessarily mean India should also follow them blindly. This country has its own
unique problems due to various factors like literacy, lack of financial empowerment of
the majority of females, mindset of the society, vast diversity, poverty, etc. and these
should be considered carefully before criminalizing marital rape.
2.9.7 That criminal law is in the Concurrent List and implemented by the States. There is a
vast diversity in the cultures of these states. It is necessary to implead the State
Governments in the matter to know the opinion of these states to avoid any
complications at a later stage.
2.9.8 The vast diversity becomes a non-issue when the Union wants to prohibit cattle
slaughter or impose Hindi. Concepts like “vast diversity” and gender equality are like
apples and oranges, impossible to juxtapo.
2.9.9 So it is pertinent to note that there are various constraints due to which the exemption
clause is not being criminalised and also there are various other alternative remedies
available under which aggrieved women can seek protection.
3. THAT THE PERSONAL LIBERTY OF A WIFE UNDER ART.21 IS NOT

ABSOLUTE AND IS SUBJECT TO RESTRICTIONS IMPOSED BY THE
MATRIMONIAL PRIVACY.
3.1 It is most humbly submitted to the Hon’ble Court that marital rape is not rape u/s 375 of
IPC and exception 2 to section 375 of IPC, does not violate Article 21 of the Constitution
of India. Article 21 is of great importance because it enshrines the fundamental right to
individual liberty, but at the same time balance has to be struck between the right to
individual liberty and the interest of society. No right can be absolute and reasonable
restrictions can be placed on them.43
43Rajesh Rajan v. C.B.I., (2007) 1 S.C.C. 70 (India).
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3.2 The right to life and personal liberty protected by Art.21 is not an absolute right but is a
qualified right- a right circumscribed by the possibility or risk of being lost according to
procedure established by law.44
3.3 The Hon’ble Court held that the right to life as guaranteed under Article 21 is not an
absolute right and thus can be curtailed by following reasonable procedure.45 The
requirements of reasonableness run like a golden thread through the entire fabric of
fundamental rights.46
3.4 Thus, in the light of the judgment, Exception 2 to Section 375 IPC is provided by the
legislature after taking into consideration the interests of the society at large. The main
object of the impugned provision is to safeguard the institution of marriage and maintain
peace and harmony in both the marital life and in the society at large.
3.5 THAT EXCEPTION 2 TO SEC. 375 WITHSTANDS THE TEST OF ART.13
3.5.1 The right provided under Art.21 is a constitutional command to State to preserve the
basic human rights of every person. The word “except” restricts the right of the state
by directing it not to fiddle with this guarantee unless it enacts a law which must
withstand the test of Art.1347 of the Constitution.48
3.5.2 The spirit of Art. 13 provides that the court should interpret the constitutional
provisions against the social setting of the country and not in the abstract. It is for this
reason that the court presume in favour of the constitutionality of the statute because
there is always a presumption that legislature understand and correctly appreciates the
need of its own people.49
44 A.K. Gopalan v. State of Madras, A.I.R. 1950 S.C. 27 (India).
45Asha Ranjanv. State of Bihar and Ors., Chandrakeshwar Prasad v. Union of India and Ors, A.I.R. 2017 S.C.
1079 (India).
46Javed v. State of Haryana, A.I.R. 2003 S.C. 3057 (Indian).
4713. Laws inconsistent with or in derogation of the fundamental rights
48Kartar Singh v. State of Punjab, (1994) 3 S.C.C. 569. (India).
49Govt. of A.P. v. P. Laxmi Devi, (2008) 4 S.C.C. 720 (India).; A.I.R. 2008 S.C. 1640 (India).: K.K.Baskaran v.
State of T.N, A.I.R. 2011 S.C. 1485 (India).; State of M.P. v. RakeshKohli, A.I.R. 2012 S.C 2351 (India).; State
27 | P a g e
3.5.3 Further, there is always a presumption in favor of the Constitutionality of an

enactment and the burden is upon the person, who attacks it, to show that there has
+been a clear transgression of the Constitutional principles.50. Since, the exception 2
to Sec.375 provides for a genuine rationale behind its insertion in the Indian Penal
Code 1860 the same withstands the constitutionality test of Art.13. It is most humbly
submitted to the Hon’ble Court that Exception 2 to Section 375 of IPC does not
violate Article 21 of the Constitution of India.
3.6 ART. 21 ENVISAGES THE CONCEPT OF MATRIMONIAL PRIVACY
3.6.1 Any Right to Privacy must encompass and protect the personal intimacies of the
home, the family, marriage, motherhood, procreation and child bearing. This
catalogue approach to the question is obviously not as instructive as it does not give
analytical picture of the distinctive characteristics of the Right to Privacy.
3.6.2 The Hon’ble Supreme Court took the concept of ‘Right to Privacy’ forward and
placed it in the plane of fundamental right in R. Rajagopalv. State of Tamil Nadu.51 It
was held that the Right to Privacy is implicit in the right to Life and Liberty
guaranteed to the citizens of this country by Article 21. A citizen has a right to
safeguard the privacy of his own, his family, marriage, procreation, motherhood, child
bearing and education amongst other things.
3.6.3 An English Common Law maxim asserts that “Every man’s house is his castle” and in
Samayne’s case52, where this maxim was applied, it was stated that house of everyone
is to him as his castle and fortress as well as for his defence against injury and
violence as for his repose.
3.6.4 Thus, it is most humbly submitted to the Hon’ble Court that Exception 2 to Section
375 IPC provides privacy to the institution of marriage. Right to Life does not
postulate any kind of absolute liberty and it can be curtailed to a reasonable extent
of W.B v. Kesoram Industries, A.I.R. 2005 S.C. 1646 (India).
50 Subramanian Swamy v. Director, C.B.I , A.I.R. 2014 S.C. 2140 (India).; K.B. Nagur, MD (Ayurveda) v. UOI,
A.I.R. 2012 S.C. 1774. (India).
51 R. Rajagopal v. State of Tamil Nadu, A.I.R. 1995 S.C. 264 (India)
52Samayne’s, (1604) 5 Co Rep 91a.
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upon rationale basis. The object is to preserve the sacred institution of marriage. Thus,
it is most humbly submitted that the impugned Section is in consonance with Article
21 of the Constitution.
3.6.5 Taking into consideration the abovementioned arguments it can be inferred that in a
situation where there is a conflict between fundamental rights of two persons the right
which would advance the public morality or public interest, would alone be enforced
through the process of court for reason that moral considerations cannot be kept at
bay.53
3.7 ART. 21 PROTECTS THE REPUTATION OF THE PERSON AGAINST

FRIVOLOUS LITIGATIONS
3.7.1 One is entitled to have and preserve one’s reputation and one also has a right to
protect it.54 The reputation of a person is his valuable asset, and is a facet of his right
under Article 21 of the Constitution.55
3.7.2 The Hon’ble SC in one of the judgments upheld this basic principle that when a court
deals with matter which is likely to affect a person’s reputation, normative principles
of law should be cautiously and carefully adhered to which should be sans emotion
and sans populist perception and absolutely in accord with the doctrine of
audialterampartem before anything adverse is recorded. When caustic observations
are made which are not necessary as integral part of adjudication and it affects
person’s reputation, a cherished right under Art.21 is violated.56
3.7.3 Furthermore, the act of sexual intercourse takes place within the four walls of the
house, where sole testimony of wife has to be relied upon to convict the accused
husbands under the charge of marital rape. This unchecked reliance on wife’s
53Mr.X v. Hospital Z, (1998) 8 S.C.C. 296. (India).
54State of Maharashtra v. Public Concern for Government Trust, (2007) 3 S.C.C. 587.(India).
55Mehmood Nayyar Azam v. State of Chattisgarh, A.I.R. 2012 S.C. 2573 (India).
Deepak Bajaj v. State, (2008) 16 S.C.C. 14; (India).
State of Bihar v. Lal Krishna Advani, A.I.R. 2003 S.C. 3357. (India).
56 Om Prakash Chautala v. Kanwar Bhan, A.I.R. 2014 S.C. 1220 (India).
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testimony can become a tool of abuse against husband, henceforth exception 2 to Sec.
375 provides for a vigilant provision in that regard.
3.8 LACK OF EVIDENTIARY VALUE ON PROOF OF MARITAL RAPE
3.8.1 It is humbly submitted that if the wife is legally allowed to bring in an action of rape
against her husband, there are chances for the effort of the wife to go in vain as
proving the marital rape cases would come with the same burden as that of non-
marital rape cases. On the face of it the evidence so procured will lack the credibility
and authenticity as what happens within the four walls of the house cannot be
substantiated with full proof as to its genuity.
3.8.2 No provision regarding admissibility of evidence in cases of marital rape is provided

under the Indian Evidence Act, 1872 as the marital rape is not an offence recognised
under the Criminal law and also the position of the parties in such cases is not the
same as other rape cases. Henceforth, the question whether the consent was given or
not remains unclear and conviction of the husband cannot be based just on the sole
testimony of the wife.
3.9 ALTERNATIVE LEGAL RECOURSES IN CASE OF SEXUAL VIOLENCE
3.9.1 It is humbly submitted that the arguments against the continuation of Exception 2 to
Sec. 375 contends for the establishment of a system where legal recourse can be given
to the wife who is the victim of the sexual violence in matrimonial relationship.
However, that legal has already been provided under various laws and statutes to
adequately redress the grievance of the wife so victimized.
3.9.2 Protection of Women from Domestic Violence Act, 2005 duly provides for the
protective measures for the woman who are the victims of domestic violence. 57 This
includes the emotional, physical or sexual abuse as well. Henceforth the sexual
violence faced by wife in matrimonial relationship is also covered under the ambit of
57Bhartiben Bipinbhai Tamboli v. State of Gujarat, Special Criminal Application (DV) No.5672 of 2016.
(Gujarat HC). (India).
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Domestic Violence Act, 200558 and appropriate remedy can be given to the aggrieved
person.
3.9.3 Similar remedy has also been provided under the ambit of criminal under Sec. 498-A
of the Indian Penal Code, 1860.59 This section endeavors to prevent torture to aa
married woman by her husband and by her relatives and to punish them for harassing
or torturing the wife to coerce her or her relatives to concede unlawful demands of
dowry.60
3.9.4 In addition to above mentioned remedies if the husband does carnal intercourse
against the order of nature than he might be made punishable under Sec. 377 61 of the
Indian Penal Code, 1860. This clearly substantiate the point there are adequate
alternate remedies available in case the wife is aggrieved of some sexual offences
committed by her husband. Therefore, there is no need for introducing new laws
which deals with matrimonial offense.
[¶ 9]. Furthermore, it was observed by the Delhi HC that right to sexual intercourse is a part
of conjugal rights and it is not judicially enforceable which means the consent to
intercourse is applied. It was held that the court has neither the means nor the capacity
to enforce its decree in the marriage bed and the husband may not by default face
penal consequences if he indulges in sexual intercourse with wife. 62
[¶ 10]. Henceforth, the exception 2 to Sec. 375 is constitutionally valid as the same has been
framed to protect the institution & sanctity of marriage and to protect innocent
husbands from malicious litigations. This provision has been inserted on the basis of
reasonable classification and it satisfies the test of constitutionality.
58Section 3 of Domestic Violence Act, 2005.
59498A. Husband or relative of husband of a woman subjecting her to cruelty
60 B S Joshi v. State of Haryana, (2003) Cr LJ 2028 (SC) (India).;
K Prema S Rao v. YadlaSrinivasa Rao (2003) 1 S.C.C. 217 (India).
61Unnatural offences
62Harvender Kaur v. Harmander Singh Choudhary, A.I.R. 1984 Del. 66. (India).
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4. THAT THE DENIAL OF SEX TO HUSBAND LEADS TO CRUELTY
4.1 It is most humbly submitted before this honourable court that a wife by denying sex to her
husband and by not satisfying her and not fulfilling her marital obligations leads to
cruelty to husband
4.2 In American Jurisprudence 2d, the term "mental cruelty" has been defined as
under:"Mental Cruelty as a course of unprovoked conduct toward one's spouse which
causes embarrassment, humiliation, and anguish so as to render the spouse's life
miserable and unendurable. The plaintiff must show a course of conduct on the part of
the defendant which so endangers the physical or mental health of the plaintiff as to
render continued cohabitation unsafe or improper, although the plaintiff need not
establish actual instances of physical abuse.”
4.3 SEXUAL INTERCOURSE AND MARRIAGE
4.3.1 Sex plays an important role in marital life and as observed by the Hon'ble Apex Court
in Dastane (Dr. N.G.) Versus Dastane (Mrs. S.), it cannot be separated from other
factors, which lend to matrimony a sense of fruition and fulfillment. Sex is a binding
force to keep two spouses together and the denial thereof by one spouse to the other
would affect mental health amounting to mental cruelty, especially in a case where the
parties are young and have recently married after a prolonged courtship.
4.3.2 In the case of Parveen Mehta Versus Inderjit Mehta63, the foundation of the case of
cruelty was based on the allegation made by the husband that right from the date one
after the marriage, the wife was not prepared to cooperate with him in having sexual
inter-course. Right from the beginning, the matrimonial relationship between the
parties was not normal. The wife even refused to subject herself to her husband.
4.3.3 In another decision Rita V. Balkrishan Nijhawan64, the Delhi High Court observed
thus: "the law is well settled that if either of the parties to a marriage being of healthy
physical capacity refuses to have sexual intercourse, the same would amount to
cruelty entitling the other to divorce. In our opinion, it would make no difference in
63 Parveen Mehta Versus Inderjit Mehta reported in 2002 (2) H.L.R. 513 (SC) (India).
64 Rita V. Balkrishan Nijhawan, A.I.R. 1973 Del 200 (India).
32 | P a g e
law whether denial of intercourse is the result of sexual weakness of respondent

disabling him from having sexual union with the appellant, or it is because of any
wilful refusal by respondent.
4.4 MENTAL CRUELTY DUE TO DENIAL OF SEXUAL INTERCOURSE
4.4.1 This Court aptly observed in Chetan Dass v. Kamla Devi65, para 14 at pp.258-259, as
under:
Matrimonial matters are matters of delicate human and emotional relationship. It

demands mutual trust, regard, respect, love and affection with sufficient play for
reasonable adjustments with the spouse. The relationship has to conform to the social
norms as well. The matrimonial conduct has now come to be governed by statute
framed, keeping in view such norms and changed social order. It is sought to be
controlled in the interest of the individuals as well as in broader perspective, for
regulating matrimonial norms for making of a well-knit, healthy and not a disturbed
and porous society. The institution of marriage occupies an important place and role
to play in the society, in general. Therefore, it would not be appropriate to apply any
submission of "irretrievably broken marriage" as a straitjacket formula for grant of
relief of divorce. This aspect has to be considered in the background of the other facts
and circumstances of the case.
4.4.2 "The mental cruelty has also been examined by this Court in Parveen Mehta v.
Inderjit Mehta66 which reads as under --A feeling of anguish, disappointment and
frustration in one spouse caused by the conduct of the other can only be appreciated
on assessing the attending facts and circumstances in which the two partners of
matrimonial life have been living. The inference has to be drawn from the attending
facts and circumstances taken cumulatively.
4.4.3 In the case of Shankuntla Kumari vs. Om Prakash Ghai67 wherein it was held that: A
normal and healthy sexual relationship is one of the basic ingredients of a happy and
harmonious marriage. If this is not possible due to ill health on the part of one of the
65 Chetan Dass v. Kamla Devi reported in (2001) 4 S.C.C. 250 (India).
66 Parveen Mehta v. Inderjit Mehta reported in (2002) 5 SCC 706 (India).
67 Shankuntla Kumari vs. Om Prakash Ghai (AIR 1983 Delhi 53) (India).
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spouses, it may or may not amount to cruelty depending on the circumstances of the
case. But willful denial of sexual relationship by a spouse when the other spouse is
anxious for it, would amount to mental cruelty, especially when the parties are young
and newly married."
4.4.4 Hence, it is evident from the aforesaid that willful denial of sexual intercourse without
reasonable cause would amount to cruelty.
4.4.5 In the authoritative pronouncement of the Hon'ble Supreme Court in Samar Ghosh vs
Jaya Ghosh68, the Hon'ble Supreme Court took into account the parameters of cruelty
as a ground for divorce in various countries and then laid down illustrations, though
not exhaustive, which would amount to cruelty. It would be relevant to refer to the
following para 101
(xii) wherein it was held as under:-"(xii) Unilateral decision of refusal to have

intercourse for considerable period without there being any physical incapacity or
valid reason may amount to mental cruelty."
4.4.6 In the case of Sirajmohmedkhan Janmohamadkhan v. Haizunnisa Yasinkhan & Anr.69,

this Court stated that the concept of legal cruelty changes according to the changes
and advancement of social concept and standards of living. Continuous ill-treatment,
cessation of marital intercourse, studied neglect, indifference on the part of the
husband, and an assertion on the part of the husband that the wife is unchaste are all
factors which lead to mental or legal cruelty.
4.4.7 In coming to its conclusion, the Court referred to Sheldon Versus Sheldon70 and
approved the following observation from Rita Nijhawan vs. Balkishan Nijhawan71
Matrimonial harmony, cohabitation and discharge of marital obligation by one spouse
towards other is one of the most essential feature to keep matrimonial bond alive
between the parties. When one of the spouses has totally withdrawn from the society
68 Samar Ghosh vs Jaya Ghosh (2007) 4 S.C.C. 511 (India).
69Sirajmohmedkhan Janmohamadkhan v. Haizunnisa Yasinkhan & Anr. (1981) 4 S.C.C. 250 (India).
70 Sheldon Versus Sheldon {(1966) 2 All England Reported 257}
71 Rita Nijhawan vs. Balkishan Nijhawan A.I.R. 1973 Delhi 200 (India).
34 | P a g e
of other as also either refusing to cohabit and / or denying to discharge his / her
matrimonial obligation towards the other, it will be clear case of cruelty on the part of
such spouse to whom such acts are attributable.
4.4.8 Where the spouses are of normal physical and mental health, number of persistent
refusal or inability of the sexual act would amount to cruelty. The marriage without
vigorous sexual activity is an anathema. Denial of sexual activity in marriage has an
extremely unfavourable influence on a wife's or husband's mind and body and leads to
deprivation and frustration. There is nothing more fatal to a marriage than
disappointment in sexual inter-course. To force a husband to such sexless life, which
inevitably damages the physical as well as mental health is nothing, but cruelty.
4.5 CRUELTY AS A GROUND OF DIVORCE AS PER HINDU MARRIAGE ACT,

1955
4.5.1 As per section 13 of the HINDU MARRIAGE ACT, 1955 it states that (1) Any
marriage solemnised, whether before or after the commencement of this Act, may, on
a petition presented by either the husband or the wife, be dissolved by a decree of
divorce on the ground that the other party (i) has, after the solemnisation of the
marriage, had voluntary sexual intercourse with any person other than his or her
spouse; or [(ia) has, after the solemnisation of the marriage, treated the petitioner with
cruelty; or]
4.5.2 In the case of Susarla Subrahmanya Sastry Versus S. Padmaksh 72, the Division Bench
of Andhra Pradesh High Court, while dealing with the term cruelty observed that
relationship between parties irretrievably broken and because of non-cooperation and
hostile attitude of respondent wife, appellant husband subjected to serious traumatic
experience. It can safely be termed as 'cruelty' within meaning of Section 13(1)(ia) of
Act.
72 Susarla Subrahmanya Sastry vs. Padmakshi II (2005) D.M.C. 707 (DB) (India).,
35 | P a g e
PRAYER
Wherefore in the light of facts of the instant case, written pleadings and authorities cited, it is
humbly prayed before this Hon'ble Supreme Court that it may be pleased to hold, adjudge
and declare:
1. THAT THE RESONABLE CLASSIFICATION HAS BEEN MADE UNDER

ARTICLE 14.
2. THAT THE EXCEPTION 2 TO SECTION 375 DOES NOT VIOLATE THE
FUNDAMENTAL RIGHTS OF THE WOMEN
3. THIS EXEPTION CLAUSE SHOULD MOT BE DECLARED
UNCONSTITUTIONAL
Or/And
May pass any other order, which the court may deem fit in light of the facts of the case,
evidences adduced justice, equity and good conscience.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
Sd/-
36 | P a g e
Counsel for the Respondents
37 | P a g e

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Before The Hon'Ble Supreme Court of India: Team Code: Tc-71R 8 Rgnul National Moot Court Competition, 2019

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TEAM CODE: TC-71R

8th RGNUL NATIONAL MOOT COURT COMPETITION, 2019

SOCIETY FOR WOMEN’S RIGHT’S............................................................PETITIONER

THE HONOURABLE CHIEF JUSTICE AND HIS COMPANION JUSTICE OF THE

HONOURABLE SUPREME COURT OF INDIA

WRITTEN SUBMISSION ON BEHALF OF RESPONDENT

S. NO. PARTICULARS PAGE NO.

ISSUE I: THAT SEXUAL INTERCOURSE WITHOUT THE 16

ISSUE II: THAT THERE ARE MANY OTHER ALTERNATIVES 22

ISSUE IV : THAT THE DENIAL OF SEX TO HUSBAND LEADS

S.NO ABBREVIATIONS FULL FORM

4. AIR All India Reporter

7. CrPC Code of Criminal Procedure

11. IPC Indian Penal Code

12. NGO Non-Governmental Organization

13. Ors. Others

14. SC Supreme Court

15. SCR Supreme Court Reporter

16. U.O.I Union Of India

17. U.S United States

19. CrLJ Criminal Law Journal

1. XB S Joshi v. State of Haryana, (2003) Cr LJ 2028 (SC) (India).;...........................29

28. XB S Joshi v. State of Haryana, (2003) Cr LJ 2028 (SC) (India).;...........................29

55. XB S Joshi v. State of Haryana, (2003) Cr LJ 2028 (SC) (India).;...........................29

 COMMENTARIES ON INDIAN PENAL CODE:

1. RATANLAL &DHIRAJLAL’S LAW OF CRIMES – A Commentary on The Indian

 COMMENTARIES ON CONSTITUTIONAL LAW:

1 Remedies for enforcement of rights conferred by this Part

by this Part is guaranteed

enforcement of any of the rights conferred by this Part

exercisable by the Supreme Court under clause ( 2 )

 It is an organization that has previously helped to bring in women-centric laws by

…………………………………….……. ISSUE 1……….……….………………………….

THAT SEXUAL INTERCOURSE WITHOUT THE WIFE’S CONSENT IS RAPE U/S

THAT THERE ARE MANY OTHER ALTERNATIVES UNDER WHICH THE

…………………………………….……. ISSUE 3……….……….………………………….

THAT THE PERSONAL LIBERTY OF A WIFE UNDER ART.21 IS NOT ABSOLUTE

…………………………………….……. ISSUE 4……….……….………………………….

THAT THE DENIAL OF SEX TO HUSBAND LEADS TO CRUELTY

1. THAT SEXUAL INTERCOURSE WITHOUT THE WIFE’S CONSENT IS RAPE

2. THAT THERE ARE MANY OTHER ALTERNATIVES UNDER WHICH THE

3. THAT THE PERSONAL LIBERTY OF A WIFE UNDER ART.21 IS NOT

4. THAT THE DENIAL OF SEX TO HUSBAND LEADS TO CRUELTY

 There is nothing more fatal to a marriage than disappointment in sexual inter-course. To

2Rajesh Rajan v. C.B.I., (2007) 1 S.C.C. 70 (Indian).

MOST RESPECTFULLY SHOWETH:

1. WHETHER SEXUAL INTERCOURSE WITHOUT THE WIFE’S CONSENT IS

1.4 THAT IT DOES NOT VIOLATE ART. 14 OF THE CONSTITUTION OF INDIA

3Suo Moto v. State of Rajasthan, 2005 (4) INDIA.L.C. 163 (India).

4Ashok Kumar Thakur v. U.O.I, (2008) 6 S.C.C. 1 (India).

5Kedarnath v. State of INDIA.B, A.I.R. 1953 S.C. 404 (406) (India).

7Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597 (India).

9Narain Das v. Improvement Trust (1973) 2 S.C.C. 265 (India).

11Anita Kushwaha v. Pushpa Sudan, (2016) 8 S.C.C. 509 (India).

justice is administered. Equality clause forbids discrimination and not

(i) That the classification must be founded on an intelligible differentia.

13U.O.I. v. Ram Gopal Verma, A.I.R. 1998 S.C. 783 (India).

15Chiranjitlal v. U.O.I, (1950) S.C.R 869. (India).

17Budhan v. State of Bihar (1955) 1 S.C.R 1045 (India).

18State of INDIA.B v. Anwar Ali (1952) S.C.R 284 (India).

19Deepak Sibbal v. Panjab University, (1989) 2 S.C.C. 145 (India).

21Ameeronisa v. Mahboob (1953) S.C.R 404 (India).

22Jagannath Prasad v. State of U.P, A.I.R. 1961 S.C. 1245 (India).