8 Rgnul National Moot Court Competition, 2019: Before The Hon'Ble Supreme Court of India

8TH RGNUL NATIONAL MOOT COURT
COMPETITION,2019
TC-61R
BEFORE THE HON’BLE

SUPREME COURT OF INDIA
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
SOCIETY FOR WOMEN’S RIGHTS,NGO………….PETITIONER

V.
UNION OF INDIA & ORS……………….………….RESPONDENT
TO THE CHIEF JUSTICE AND HIS COMPANION OF JUDGES
-MEMORANDUM FOR THE RESPONDENT-

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8TH RGNUL NATIONAL MOOT COURT COMPETITION,2019

-Table of contents --Respondent-
TABLE OF CONTENTS
1. TABLE OF CONTENTS 2
2. INDEX OF ABBREVIATIONS 3
3. INDEX OF AUTHORITIES 4-7
4. STATEMENT OF JURISDICTION 8
5. STATEMENTS OF FACT 9
6. QUESTIONS OF LAW 10
7. SUMMARY OF ARGUMENTS 11
8. ARGUMENT ADVANCED 12-

26
[I]WHETHER THE WRIT PETITION FILED UNDER ART. 32 OF THE CONSTITUTION
OF INDIA MAINTAINABLE.
[II]WHETHER EXCEPTION II OF SEC. 375 OF INDIAN PENALCODE, 1860 IS
CONSTITUTIONAL OR NOT.
[III] RESTITUTION OF CONJUGAL RIGHTS DOES NOT INFRINGE RIGHT TO
PRIVACY.
9. PRAYER 27
MEMORANDUM FOR THE RESPONDENT

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-Index of abbreviations- -Respondent-
INDEX OF ABREVIATION
1. Sec. SECTION
2. A.I.R ALL INDIA REPORT
3. Anr. ANOTHER
4. Art. ARTICLE
5. CrPc CODE OF CIVIL PROCEDURE,1973
6. HC HIGH COURT
7. SC SUPREME COURT
8. i.e THAT IS
9. IPC INDIAN PENAL CODE,1860
10. Ors. OTHERS
11. UOI UNION OF INDIA
12. V. VERSUS
13. SCC SUPREME COURT CASES

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-Index of authorities- -Respondent-
INDEX OF AUTHORITIES
STATUTES
2. CONSTITUTION OF INDIA,1950
5. HINDU MARRIAGE ACT, 1955
7. INDIAN PENAL CODE, 1860
BOOKS
1. DR. J.N. PANDEY, Constitution of India,53rd eds,2016
2. M.P. JAIN, Lexis Nexis Indian Constitutional law,7th eds,2016
3. Volume 1,Durga Das Basu,Lexis Nexis Shorter Constitution of India,14th edn,2009
4. Volume 2,Durga Das Basu,Lexis Nexis Shorter Constitution of India,14th edn,2009
5. Durga Das Basu,Lexis Nexis Shorter Constitution of India, 8th edn, 2011
6. Constitution of India,1950- Bare Act
7. Kusum,Cases And Materials of Family Law, 3rd edn,2013
8. R.K.Agarwala, Hindu Law,22nd edn.2007
9. Dr. S.R.Myneni, Hindu Law,1st edn,2009

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10. Dr.Paras Diwan, Modern Hindu Law, 23rd edn,2016
11. Dr.Paras Diwan, Hindu Law,
12. Indian Penal Code,1860-Bare Act
13. Satyajeet A Desai, Mulla Hindu Law, 21st edn,2010
14. Black’s Law Dictionary, 4th edn, 1968

INDIAN CASES
1. Action Group v. Union of India,AIR 1997 14
2. Amarsingh ji v. State of Rajasthan, AI.R.1955 S.C.504 13
3. Anne saheb v. Tarabai, AIR 1970 MP 36 27
4. Baboo Ram v. Susheela,1964 MP 73 16
5. Badri Narayan v. Savitri,(2000) DMC 552 17
6. Bhaurao v. State of maharashtra, AIR 1965 SC 1564 17
7. BL syal v. Smt. Ram syal,AIR 1968 Punj. 489 24
8. Coffee Board v. Jt. C.T.O. A.I.R.1971 S.C.870(877) 13
9. Dadaji Bhikhaji v. Rakambai 26
10. District Registrar & Collector, Hyderabad And anr. V. Canara Bank & anr.(2005) 1 SCC 496 15

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11. D. N. Sharma v. Usha Sharma, A.I.R.2004 Del.198 16
12. Dr. Pradeep kumar v. State of Haryana, RCR (Criminal) 376,2008 17
13. Fertilizer Co. v. Union of India, A.I.R.1981 S.C.344 13
14. Francis Coralie v. Union Territory of Delhi, AIR 1981 746 18
15. Gatharam Mistree v. Mohita Kochia Atteah, 14 Bing. L.R. 29 & (24) 26
Gopal Das v. Union of India, A.I.R.1955 S.C.1
16. 13
17. Gopal Krishan v. Mithilesh kumari, AIR 1979 ALL 316 20
18. Govind v. State of M P, AIR 1975 (1378) 24
19. Hazi Ismail v. Competent Officer,AIR 1967 SC 1244 13
20. Harvinder Kaur v. Harminder Singh AIR 1984 Delhi 66 22
21. Huhhram v Misri Bai, AIR 1979 MP 144 26
22. Independent Thought v. Union of india, A.I.R.2017 15
23. Indra Kumari v. Subbiaah, (2003) 1 CTC 259 16
24. Jyotish v. Meera, A.I.R 1970 Cal.266 12
25. Khyerbari Tea Co. v. State of Assam, AIR1967 SC1244 13
26. Kondal v. Ranganavaki, AIR 1924 Mad 49 20

27. Lachman v. Meena, AIR 1964 SC 40 20

Lata Singh v. State of Uttar Pradesh, (2006)5 S.C.C.475
28. 15
29. Megnatha v. Smt. Sushila, AIR 1957 Mad. (426) (22) 24

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30. Mrs G. Praveena v. Shree Narendra Modi,AIR 2014 13
31. Mrs Maneka Gandhi v. Union of India & Anr. AIR 1978 SC 597 21
32. Praveen Mehta v. Inderjit Mehta, AIR 2002 SC 2582 27
33. Priyabala v. Suresh chandra, AIR 1971 SC 1153 17
34 Ram Prakash v. Savitri Devi, A.I.R.1958 P.H.87 12
35. Ramsharan v. Union of India, AIR1989 (549) 13
36. Roshan lal v. Kadembari,AIR 1965 (1413) 17
37. Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 16
38. Saroj rani v. S k chadha, AIR 1984 (1562) 18
39. Saroj rani v. Sudarshan kumar, AIR 1984 SC 1562 22
40. Shashi Kumar v. Neelam, (1996) DLT 402 16
41. Smt. Shashi Bala v. Shree Rajiv Arora,(2012) 188 DLT 1 16
42. Sree Kumar v. Pearly Karun, AIR 1980 Kant 8 18
43. Srikant v. Anuradha,AIR 1980 Kant(8) 27
46. State of Maharashtra v. Ashok Narayan Dhandarwal, 16
47. Sundarbai v. Shivnarayana, (1908) 32 Bom 81 17

Surjit kaur v. Jujjhar singh, A.I.R.1980 P.H.274
48. 17
49. Sushila Bai v. Prem Narayan, AIR 1976 MP 225 24
50. Tarlochan Singh v. Jit Kaur, AIR 1989 PH 379 17
51. Venugopal v. Laxmi, AIR 1936 Mad 288 21
52. Vuyyuru Pothuraju v. Radha, AIR 1965 (407) 25
53. X v. Z, A.I.R.2002 Del. 217 at 223 15
INTERNATIONAL CASES
1. Crabtree v. Crabtree,(1964) A.L (1) 820 (10) 23
2. De lanbanque v. De lanbanque, (1899) P 42 17

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3. Evans v. Evans, (1948) 1 K.B. 175 (7) 25
4. Fassbender v. Fassbender, (1938) 3 All ER 389 17
5. Forster v. Forster,(1719) Hag. Con. 144 Loi 24

6. Hyde . Hyde, (1866) L.R. 1 P and D 130 (23) 25
7. Jackson v. Jackson, (1875) 91 US 112 24
8. Linda v. Balisario, (1795) 1 Hac.Con. 216 (21) 25
9. Maurer v. Maurer (1972) 1 ALL ER 289 20
9. Orme v. Orme, (1824) 2 Add 382 22
10. Powell v. Powell, 92 LJ P 6 21
11. Sheldon v. Sheldon, (1883) L.R. 9 P.D. 52 27
12. Smith v. Smith, (1939) 4 ALL ER 533 21
13. State of North Carolina v. Donnie Leon Way, NC 293(N.C.1979) 18
14. Thomas v. Thomas, (1948) 2 K.B. 294 (8) 25
15. Weatherley v. Weatherley, (1946) 2 ALL E.R. I (II) (6) 26
16. Weldon v. Weldon , (1886) I.L.R 10 Born (301) (25) 26
17. Wheatley v. Wheatley, 1950 1 K.B. 3(9) 17
18. Wilkies v. Wilkies, (1943) I ALL ER 43 21

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-Statement of Jurisdiction- -Respondent-
STATEMENT OF JURISDICTION
The writ petition has been filed under Article 32 of the Indian Constitution by the Petitioner for the violation of
Fundamental Rights enumerated in Part III of the Indian Constitution. The Respondent maintains that there is
no violation of rights taken place. Therefore, this Hon’ble Supreme Court need not to entertain its jurisdiction
in this writ petiton.
-Article 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
habeaus corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the
enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by
law empower any other Court to exercise within the local limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court under clause (2)
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this
constitution.

10 | P a g e
-Statement of facts- -Respondent-
STATEMENT OF FACTS
(1) Nidhi and Subodh, aged 22 and 24 respectively, are two working professionals in the city of Patiala. In
2017 they have been live-in partners. In December 2018, Nidhi and Subodh tied the knot as per the
hindu rituals and customs.
(2) After their marriage, their relationship wasn’t the same as it had been prior to the marriage. According
to nidhi now he demand intercource as if it were a matter of right rather than it being an act of two
consenting adults. He never pay heed to her feelings and this was something that hurt her. Nidhi tried to
talk about this to her mother & mother-in-law, both of them said that this is the duty of an Indian wife to
fulfill the wishes of her husband & and be a contant companion to him at any cost.
(3) One day, on the television Nidhi saw a debate show on the marital rape. A few of penelists strongly
condemned Exception II to Sec 375 of the IPC,1860 and some speaks in against of it.
(4) Deeply moved by the debate, Nidhi finally decided to fight for her rights. She approached Society for
Women’s Rights and narrated her grief to the activists. The member plague of marital rape.
(5) The PIL 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 constituitonal validity of Exception II to Sec. 375 of the IPC,1860.

11 | P a g e
-Questions of law- -Respondent-
QUESTIONS OF LAW
[I]WHETHER THE WRIT PETITION FILED UNDER ART. 32 OF THE CONSTITUTION OF INDIA
MAINTAINABLE.
[II]WHETHER EXCEPTION II OF SEC. 375 OF INDIAN PENAL CODE,1860 ISCONSTITUTIONAL
VALID OR NOT.
[III] RESTITUTION OF CONJUGAL RIGHTS DOES NOT INFRINGE RIGHT TO PRIVACY.

12 | P a g e
-Summary of Arguements- - Respondent-
SUMMARY OF ARGUMENTS
[I] THE WRIT PETITION FILED UNDER ART. 32 OF THE CONSTITUTION OF INDIA IS NOT
MAINTAINABLE.
Thus, the writ petition is not maintainable. The counsel on behalf of respondent most humbly and respectfully
submits before the honourable court that the PIL filed by the petitioner under article 32 of Indian constitution is
not maintainable. Firstly, Article 32 is invoked in the cases where there is any infringement of fundamental
rights provided under Indian constitution and secondly public interest litigation is filed where there is a matter
of general importance. In the present case there is no infringement of fundamental right of petitioner and the
disputed matter does not involve general public in it. It is a matter of personal nature.
[II] EXCEPTION II TO SEC-375 OF INDIAN PENAL CODE, 1860 IS CONSTITUTIONALLY

VALID.
The counsel on behalf of the respondents most humbly submits that the exception 2 of sec 375 of IPC is
constitutional. It states that-sexual intercourse or sexual acts by a man with his own wife, the wife not being
under 18 years of age, is not rape. It does not infringe the constitutional validity of section 375. Under marriage
this is the right of a spouse to have sexual intercourse with their partner and it does not violate any fundamental
right of the appellant. The penal action imposed on the respondent is invalid and unjustifiable.
[III] RESTITUTION OF CONJUGAL RIGHTS DOES NOT INFRINGE RIGHT TO PRIVACY.

13 | P a g e
The arguments raised by the petitioner against the respondent are baseless. Conjugal rights are instituted in the
institution of marriage itself. it is a remedy to protect the marital institution and constituted for preserving the
affirmation and sanctity of relation between a man and women. It does not violate right to privacy provided
under fundamental rights in Indian constitution.
-Argument Advanced- - Respondent-
ARGUMENT ADVANCED
[1] THE WRIT PETITION FILED UNDER ART. 32 OF THE CONSTITUTION OF INDIA IS NOT
MAINTAINABLE.
A Public interest litigation can be filed under article 32 of the Indian constitution for the enforcement of
fundamental rights, as guaranteed by III part of the constitution.
In the present case, there has been no violation of fundamental rights since, the matter is of husband and wife
and not that of the public interest as the public at large has no fundamental or legal right to intrude into the
personal life of the other individual and whatever be the relationship between spouses are purely personal. So,
action taken by the NGO was in against of right of privacy.
In the present case the petitioner and respondent had love marriage but after marriage the petitioner felt being
dominated by her husband as he demanded intercourse as his marital right. So, with the help of an NGO a PIL
was filed in the hon’ble supreme court for the violation of fundamental rights of married women.
Thus, in the case of Ram Prakash v. Savitri Devi1, the court observed, “according to Hindu law, marriage is a
holy union for the performance of religious duties. The relationship between husband and wife imposes upon
each of them certain marital duties and gives each of them certain legal marital rights.
A.I.R.1958 P.H.87
1

14 | P a g e
Under Hindu law it is the right of a husband to have conjugal society of his lawfully wedded wife and wife has
a duty to fulfil their marriage obligations.
Under Indian personal laws, incapacity to consummation of marriage entitles the other party to the decree of
voidability of marriage. Wilful refusal to the consumption of marriage is ground of voidable marriage under
Special Marriage Act, divorce under Parsi Marriage and Divorce Act. Under Muslim law the consummation of
marriage is an essential. Family law- (Dr. paras diwan)
It was held in the case of Jyotish v. Meera2,that “the mutual right to sexual intercourse continues throughout
the entire period of marital life.”
It was held in the case of Amarsingh ji V. State of Rajasthan3 that “no question other than relating to a
fundamental right will be determined in a proceeding under article 32”. The same was held in the case of
Coffee Board v. Jt. C.T.O.4
“if the validity of other provisions of the statute is challenged on grounds other than the contraventions of
fundamental rights the court would not entertain that challenge in a proceeding under art. 32” as held in the case
of Gopal Das v. Union of India 5, Haji Esmail v. Competent officer 6, and Khyerbari Tea Co. v. State of
Assam7.
It is to be understood that article 21 is not an absolute right, and reasonable restriction can be imposed on it by
law. As article 32 deals with the extraordinary jurisdiction where person can directly come to supreme court, it
must be used wisely and vigilantly.
The petitioner should have approached the high court for their PIL first as the powers under art 226 given to
high court are wider than the power of supreme court to issue a writ under art 32. The PIL filed by the
petitioner is mere wastage the time of hon’ble court.
“Public interest litigation is filed where there is a matter concerning social or public interest then court would
allow any member of an organization having a special interest in the subject matter, to bring such petition” held
in the case of fertilizer corporation v. union of India8.
2
A.I.R 1970 Cal.266
3
AI.R.1955 S.C.504
4
A.I.R.1971 S.C.870(877)
5
A.I.R.1955 S.C.1
6
A.I.R.1967 S.C.1244
7
A.I.R.1964 S.C.925 (941)
8
A.I.R.1981 S.C.344
15 | P a g e
In the present matter the issue is related to two private individual so the case is not eligible to be filed under
PIL. This case is of private nature where a PIL cannot be filed for the enforcement of their rights.
As held in the case of Ramsharan v. Union of India9 that “the jurisdiction of art 32 cannot be used for settling
dispute between individual parties but to remedy gross violation of human rights by the government and its
officers”
Mrs. G.Pravina v. Shri. Narendra Modi10 in this case it was held that every citizen has a right to safeguard
the privacy of his/her own, family, marriage. No one has an authority to publish anything about the personal
life of a family and husband and wife. And whatever be the relationship of the spouse, factum, family are
purely personal and it is not an interest of a public So, the petition cannot be filed. Hence, the writ petition was
dismissed.
Any matter of married couple is not an interest of public at large it is a personal matter and the adjudication of
personal laws are beyond the jurisdiction of the courts thus, the PIL cannot filed because there is no violation of
fundamental rights in the present case. It has been stated in the case Ahmedabad Women Action Group
(AWAG) v. Union of India11 in this case it was held that regardless of the time period, the court was of the
opinion that India and Indians have been governed by personal laws. It was of the opinion that an intrusion by
the court would lead to several undesirable consequences, as the adjudication of personal laws was beyond the
jurisdiction of the courts. Hence, the petition was dismissed.
9
A.I.R.1989 (549)
10
A.I.R.2014
11
A.I.R.1997
16 | P a g e
[2] EXCEPTION II OF SEC. 375 OF INDIAN PENALCODE, 1860 IS CONSTITUTIONAL.

Constitution of India, 1950 states that- Article 14 Article 21 of Indian constitution talks about equality before
law and equal protection of law within the territory of India and right to life or personal liberty. so according to
this if a female has a right to go to court for the issues relating to sexual harassment and physical abuse, then
men should also have a right to go to court if his right to sexual intercourse with his lawful wife has been
infringed.
In the case Lata Singh v. State of Uttar Pradesh 12the supreme court stated that right to marry is the
component of right to life under Art. 21 of Constitution of India.
In the case of Independent thought v. Union of India13 court stated that-
“We make it clear that we have refrained from making any observation with regard to the marital rape of a
woman who is 18 years of age and above since that issue is not before us at all. Therefore, we should not be
understood to advert to that issue even collaterally.”
In the case District Registrar and Collector, Hyderabad and anr. v. Canara Bank and anr. 14Supreme Court
refers to freedom of expression, personal liberty and freedom of movement is the fundamental rights that
further gives rise to the right of privacy.
Referring the right of freedom of expression given by the constitution to the present case, a person has a right to
express his feelings and emotions so when a husband expresses his love and affection towards his wife through
sexual intercourse it cannot be termed as unconstitutional.
12
(2006)5 S.C.C.475
13
A.I.R.2017
14
(2005) 1 S.C.C.496
17 | P a g e
In the case X V. Z15The right to privacy may arise from contract and also may arise from a particular specific
relationship including matrimonial but when the right to privacy has become a part of a public document, in
that event a person concerned, indeed cannot insist that any such test would infringe his/her right to privacy.
So, the right to equality of the husband is infringed.
If wife denies to get physical or sexual with his husband or hurt his feelings then it will be cruelty to the
husband and violation of marital right of the husband. And if marital rape is considered under sec 375 then the
purpose of marriage will not be fulfilled. In the case D.N. Sharma v. Usha Sharma 16The wife had persisted in
humiliating and wounding feelings of husband, which amounted to cruelty to the husband.
Pleasure and procreation are the essence of matrimonial relation and making sexual relations with spouse is one
of the natural instinct of human nature. It cannot be termed as marital rape or violative of fundamental rights of
another spouse.
In the case Smt. Shashi Bala v. Shri Rajiv Arora17the court stated that the sex starved marriages are becoming
an undeniable epidemic as the urban living conditions today mount an unprecedented pressure on couples.
Sanctity of Sexual relationship and its role in reinvigorating the bond of marriage is getting diluted and as a
consequence more and more couples are seeking divorce due to sexual incompatibility and absence of sexual
satisfaction.
Reasonable excuse for not getting indulged in intercourse as pregnancy is acceptable but a long time refusal by
a spouse for intercourse without any cause cannot be termed reasonable.
In the case Samar Ghosh v. Jaya Ghosh18 the court stated that not allowing a spouse for a long time to have
sexual intercourse by his or her partner, without sufficient reason, it itself amount to mental cruelty to such
spouse.
In the case Baboo Ram v. Sushila19 it was stated that any act or conduct which makes it impossible for the wife
to live with the husband or that the couple cannot live in harmony and happiness will amount to reasonable
excuse. But in the present facts nowhere it is written that respondent has done anything cruel with the petitioner
which disturbs the harmony of their relation.
In another case of Indra Kumari v. S. Subbaiah20 where it was held that wilful denial of sexual relationship by
spouse, when other spouse anxious for it, would amount to mental cruelty and in the case
15
A.I.R.2002 Del. 217 at 223
16
A.I.R.2004 Del.198
17
(2012) 188 D.L.T.1
18
(2007) 4 SCC 511
19
1964 MP 73
20
(2003) 1 C.T.C.259
18 | P a g e
Shashi Kumar v. Neelam21 the husband was denied sexual access, subjected to abuse and kicked out of bed
that lead to the mental cruelty to the husband.
Not getting sexual pleasure by spouse in a lawful marriage constitutes cruelty against the another. And denial of
sex for a long term also gives rise to grounds for dissolution of marriage such as extra marital affair and violent
act.
In the case of Dr Pradeep Kumar v. State of Haryana22 it was mentioned by Punjab and Haryana high court
that it is to be a history of events where wife has refused to consent to physical relation with husband which
then resulted into violent act.
In the case Weatherley v. weatherley23 stated that mere refusal to have sexual intercourse while parties are
living together does not amount to withdrawal from the society though it may amount to cruelty.
In the case Badri Narayan v. Savitri24 the behaviour of wife with husband for the denial of sex and continuous
torture and harrassement towards his family amounts to cruelty.
When a man and women get into a matrimonial relationship, fulfilling all customs and ceremonies of a valid
marriage, they are also implied with certain duties and responsibilities towards each other to cohabit and
fulfilling their obligations.
In the case Bhaurao v. State of Maharashtra 25 and Priya Bala v. Suresh Chandra 26it was stated that if the
Hindu marriage has been taken place then it should be in accordance with Hindu custom ceremonies and all the
obligations has to be fulfilled which are required in a marriage such as consent in sound mind for marriage.
In the case Sundarbai v. Shivnarayana27stated that marriage according to the Hindu Law is a holy union for
the performance of religious duties.
In the case De Laubenque v. De Laubenque 28and Fassbender v. Fassbender29Stated that cohabitation means
living together as husband and wife that is to say that the spouses are fulfilling their matrimonial duties.
So, the right to equality of the husband is infringed.
21
(1996) D.L.T.402
22
RCR (Criminal) 376, 2008
23
(1988) 330 N.W.2d 890
24
(2000) D.M.C.552
25
A.I.R.1965 S.C.1564
26
A.I.R.1971 S.C.1153
27
(1908) 32 Bom 81
28
(1899) P 42
29
(1938) 3 AII ER 389
19 | P a g e
If a wife has given the consent for marriage that means she has also given the consent of fulfilling the purpose
of marital obligation.
In the case Roshan Lal v. Kadembari30, Surjit Kaur v. Jujjhar Singh31 and Tarlochan Singh v. Jit Kaur32
in this case the wife was of sound mind at the time of marriage and she gave consent for the marriage and its
obligation with her sound mind so after marriage she cannot refuge to fulfil her obligations and she is entitled to
so. This has been added in Hindu marriage act to maintain the scope of marriage and to maintain the sanctity of
marriage. This is the right of a spouse to get physical with their partner.
This is the right of a spouse to have sexual intercourse with their own lawful spouse and it does not amount to
rape. The Criminal Law (Amendment Act), 2013 defined consent which means nonverbal (unequivocal)
voluntary agreement, or a communication that conveys willingness, to participate in a specific sexual act.
The right of a spouse to enjoy the society of his legal spouse by cohabitation, which does not relate to sex only
but the sharing of mutual bond with the husband and his family comes under conjugal rights.
In the case of Saroj rani v. Sudarshan Kumar33, the constitutional validity of section 9 were set at rest by the
apex court. Constitutionality of remedy of restitution of conjugal rights provided under section 9 of the act. It
was held that section 9 is not violative of art. 14 and 21 of the constitution.
In the case of Francis Coralie v. Union Territory of Delhi34, said that the right to live is not restricted to mere
animal existence. It means something more than just mere physical survival. it also includes the right to live
with human dignity, and all that goes along with it, namely, the bare necessities of life, such as adequate
nutrition, clothing and shelter and facilities for reading, writing and expressing ourselves in diverse forms,
freely moving about and mixing and commingling with fellow human being.
This has been recognized in the state of North Carolina in the case of State of North Carolina v. Donnie Leon
Way35 in which it was held that a Women cannot back out of sex after consent.
By entering into the contract of marriage the spouse had already given the perpetual consent to have sexual
intercourse with their lawful partner without any restrictions and this applies to both men and women.
30
AIR 1965 (1413)
31
A.I.R.1980 P.H.274
32
A.I.R.1986 P.H.379
33
A.I.R. 1984 S.C.1562
34
A.I.R. 1981 746
35
297 N.C.293 (N.C. 1979)
20 | P a g e
In Sree Kumar v. Pearly Karun36, the Kerala High Court watched that the offense under Section 376A, IPC
won't be pulled in as the spouse is not living in separation from her husband under any custom or use or
declaration of partition, regardless of the possibility that she is liable to sex with her life partner without any
desire to and without her assent.
With all these cases sited it can be concluded that exception II of sec. 375 cannot be held unconstitutional on
the basis of violation of fundamental rights and making sexual relations with spouse.
[3] RESTITUTION OF CONJUGAL RIGHTS DOES NOT INFRINGE RIGHT TO PRIVACY.
The arguments raised by the petitioner against the respondent are baseless. Conjugal rights are instituted in the
institution of marriage itself. it is a remedy to protect the marital institution and constituted for preserving the
affirmation and sanctity of relation between a man and women. It does not violate right to privacy provided
under fundamental rights in Indian constitution.
Conjugal rights are defined under section 9 of Hindu Marriage Act, 1955. It says that when either the husband
or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may
apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the
truth of the statements made in such petition and that there is no legal ground that why the application should
not be granted, may decree restitution of conjugal rights accordingly.
Conjugal rights are instituted in the institution of marriage itself, held in the case of kondal v.
Ranganavaki37.The term “without reasonable excuse” was observed in the case of Gopalkrishan v. Mithilesh
kumari38 -
It is not possible to give an exhaustive statement of law what may or may not constitute “reasonable excuse”.
Each case must depend on its facts and circumstances. Section 9 does not throw any light on the construction of
the expression “without reasonable cause” and whether there is a reasonable cause or not in a given case shall
be decided only on the evidence and the particular circumstances of that case. The same was held in Lachman
v.Meena39,
36
II (1999) DMC 174
37
A.I.R.1924 Mad 49
38
A.I.R.1979 ALL 316
39
A.I.R.1964 S.C.40
21 | P a g e
The expression “withdrawal from society” means cessation of cohabitation by a voluntary act of the respondent.
It means withdrawal from conjugal relationship. The word “society” this means the same as cohabitation. Thus,
it is withdrawal from the totality of conjugal relationship, such a refusal to live together, refusal to hav marital
intercourse, and refusal to give company and comfort. In short it is total repudiaton of marital togetherness,
marital two-in-oneship. This was held in the case of Maurer v. Maurer40.
The forsaking of wife’s bed, avoiding her society and seclusion of himself from her in a separate part of a
common residence may amount to withdrawal from cohabitation. Held in the case Powell v. Powell41, In the
present matter it is clear by the facts that the wife was not interested in making sexual relations with her spouse
while still living together and her refusal to fulfill her marital obligation shows that she has no intention to
cohabit with her spouse.
It was held that “in a petition for restitution, it is not necessary to show that the spouses were cohabiting earlier,
the cause of action arises, once the intention not to cohabit is established” in the case of Venugopal v. Laxmi.42
The basic objective of conjugal rights is to preserve the marriage. It was observed in the case of harminder kaur
that refusal of sexual intercourse by itself does not mean a denial to cohabit and it does not necessarily mean
serial intercourse. The remedy of restitution aims not only at sexual intercourse but also at cohabitation and
consortium.
Further in the case of Smith v. Smith43 and Wilkies v. Wilkies44 it was held that “it is not necessary to show
that the consummation of marriage has taken place. Even when parties are living together under the same roof,
refusal to cohabit would give a cause of action for a petition of restitution”
It will be no wrong to say that conjugal rights provide the marital privacy as it does not emphasise on
intercourse but its main purpose is to make the parties to cohabit and fulfill their marital obligations towards
each other and this what the parties has entered into by their legal marriage.
40
(1972) 1 ALL ER 289
41
92 L.J.P.6
42
AIR 1936 Mad 288.
43
(1939) 4 ALL ER 533
44
(1943) I ALL ER 43
22 | P a g e
It was held that section 9 brings the parties together. Granting the decree of restitution is left to the court to be
decided in its discretion basis on just, fair and reasonable in the facts and circumstances of the case. Law cannot
guarantee better than “inviolability of the body and mind” of the wife and her “marital privacy”. And therefore
section 9 is not violative of article 21 can be safely stated, held in the case of Mrs. Maneka Gandhi v. Union
of India and Anr.45
Marriage is defined as “the civil status, condition, or relation of one man and one woman united in law for life,
for the discharge to each other and the community of the duties legally incumbent on those whose association is
founded on the distinction of sex”
As per Hindu law, marriage is eternal, divine, and sacramental. According to the Hindu philosophy, the
objectives of marriage are Dharma- righteousness, virtue and justice, Praja or Santhana – Procreation, and Rati-
Pleasure. “Marriage is considered as a socio-legally sanctioned route to progeny, in obligation to ancestral debts
and mandates.” As per 71st report of law commission.
keeping the argument that conjugal rights infringes right to privacy is a conflicting situation.
In the case of Harvinder Kaur v. Harminder Singh46, it was held that the main motive of sec. 9 is to protect the
marriage. This remedy aims not only at sexual relations but also at cohabitation and consortium.
Hence section 9 is not violative of article 14 and 21 of Indian constitution.
In Orme v. Orme47 it was said: "The Court can only interfere, in for restitution, where matrimonial
cohabitation suspended. The single duty which it can enforce by its decree in a suit of this nature is that A
married parties 'living together'
“According to the Indian legislature the marriage has not to be ended at once. The breakdown of marriage does
not take place in one day. It is a process in which the spouses drift apart. First there is apathy, then indifference,
and then positive aversion. The consortium of husband' and wife, the kind of association which is only possible
between husband and wife, ultimately comes loan end.”
Further in the judgement it was stated that If there is withdrawal or one party lives separate from the other
without: any sufficient reason, they will be compelled to come together again. This is what the parties had
themselves contracted. Cohabitation is an essential term of the contract, the very soul of marriage. If the court
45
A.I.R. 1978 S.C.597
46
A.I.R.1984 Delhi66
47
(1824) 2 Add 382
23 | P a g e
enforces the Contract there is nothing wrong. The parties had voluntarily stipulated this .at the time of entering
into the marriage bond.
In the case of Saroj Rani Vs. S.K. Chadha48it was held that–“In India conjugal rights i.e. right of the husband
or the wife to the society of the other spouse is not merely creature of the statute. Such a right is inherent in
the very institution of marriage itself. There are sufficient safeguards in Section 9 of the Hindu Marriage Act to
prevent it from being a tyranny. Section 9 of the Act is not violative of Article 14 or Article 21 of the
Constitution if the purpose of the decree for restitution of conjugal rights is understood in its proper perspective
and the method of execution.”
Justice Rohatagi further in the judgement says that- “in the end I will repeat what I have said before it is for the
legislature to abolish the remedy of restitution and not for the Courts to strike it down in the ground that it is
unconstitutional. In my opinion S. 9 is perfectly valid”
Wheatley v. Wheatley49, Where either the husband or the wife has withdrawn from the society of the other
party without just cause, the court orders the withdrawing party to return to the conjugal fold. So that the
consortium is not broken.
The meaning of consortium was given in the case of Crabtree v. Crabtree50Consortium means
"companionship, love, affection, comfort, mutual services, sexual intercourse. All these belong to the married
state. Taken together they make up consortium." Consortium has been defined as "a partnership or association;
but in the matrimonial sense it implies much more than these rather cold words surest. It involves a sharing of
two lives, a sharing of joys and sorrows of each party, of their successes and disappointments. In its' fullest
sense it implies a companionship between each of them, entertainment of mutual friends, sexual intercourse all
those elements which, when combine. justify the old common law dictum that a man and his wife are one
person"
In the words of derrett "The practical utility of the remedy is little in contemporary England, but in India, where
spouses separate- at times due to misunderstandings, failure of mutual communication, or the intrigues of
relatives, the remedy of. restitution is still of considerable value.
48
A.I.R.1984 (1562)
49
1950 (I K.B. 39 (9)
50
(1964) A.L(1) 820 (10)
24 | P a g e
A recent writer has suggested that "the' opinion of Derrett is more realistic and that the Hindu society is not
mature enough to do away with the remedy. Its abolition would be like throwing away the baby with the bath-
water." I agree with the view of Derrett.
Making sexual relations with spouse is a private affair between husband and wife which is based on customs
and traditions and that should not be interfered by legislature as when a partner can make physical relations
with their partner and when cannot.
In the early case of Gobind v State of MP51, the Supreme Court held that the right to privacy protects “the
personal intimacies of the home, the family, marriage, motherhood, procreation and child rearing”. This
definition seems to treat the home as a private space where the law could not interfere.
According to the case of Meganatha v. Smt. Susheela52. the definition of marriage is that it is the very
foundation of' civil society. The relation once formed, the law steps in and holds the parties to various
obligations and liabilities. It is an institution in the maintenance of which the public is deeply interested, for it is
the foundation of the family and of society without which there would be neither civilisation nor progress.
In Forster v. Forster53 " Stowell said 'that "the duty of matrimonial intercourse can be compelled by the court,
though matrimonial cohabitation may." In the case of T. Sareetha it was conceptualized as passing the decree
of restitution of conjugal rights has one meaning only that is to compel the unwilling wife to have sex with
husband. It over emphasised on the the term sex only rather than cohabitation. This view was disregarded in the
case of Jackson v. Jackson54 in 1924.
For the restitution of conjugal rights it is essential that the spouse should have withdrawn from the society of
another spouse but society is not necessarily means physical society it includes conjugal society as well and it
was stated in the case of sushila bai v. prem narayan55,where the court held that in order to sustain a petition
for restitution of conjugal rights it is necessary to establish the respondent has withdrawn from the society of
petitioner and the society means the conjugal society.
In present matter refusal from the wife to get indulged in physical relations with her husband shows her
withdrawal from the conjugal society.
51
A.I.R.1975 (1378)
52
A.I.R.1957 Mad. (426) (22)
53
(1790) Hag. Con. 144 Loi
54
(1875) 91 U.S.112
55
AIR 1976 MP 225
25 | P a g e
The essence of decree of restitution of conjugal rights is that the spouse desiring the company of the wife make
an effort throught the court for it assistance in order to restore the other back to him so that they may be able to
lead to conjugal life. B. L. syalv.smt. ram syal56It was held that Whether it is English law or the Indian
Act marriage is a voluntary union for life of one man and one woman to the exclusion of all others.
Hyde.v. Hyde.57While marriage is a civil contract where the spouses have right to live with each other have
their company, it will be in contrast of the contract that after marriage they are living separately.
The same was held in the case of Evans v. Evans58, that it is the primary function of section 9 of Hindu
marriage act. Cohabitation has been defined in these words- cohabitation does not necessarily depends upon
whether there Is sexual intercourse between husband and wife. Cohabitation means living together as husband
and wife.
In the case of Linda v. Belisario59 it was observed that-
A marriage is not every casual commerce. A mere casual commerce, without the intention of cohabitation, and
bringing up of children, would not constitute marriage. But when two parties agree to have that commerce for
the procreation and bringing up of the children, and for such lasting cohabitation that would be a marriage in
the sight of God and man. Cohabitation continues to the end of life. It is not mere temporary or casual
commerce, but a contract of a permanent nature, in the intention of the parties. Marriage is a contract of the
greatest importance in civil institutions, and it is charged with a vast variety of rights and obligations. The
essence of matrimony, is consent.
By entering into the contract of marriage the itself gives a perpetual consent to sexual intercourse with their
lawful partner without any restrictions, to company each other, and to procreate.
Consent should be defined to mean "unequivocal voluntary agreement".
56
A.I.R.1968 Punj.489.
57
(1866) L.R. 1 P and D 130(23)
58
(1948) I K.B. 175 (7)
59
(1795) 1 Hag. Con. 216(21)
26 | P a g e
In the case of Weatherley v. Wentherley60,. It was held that Marriage is the most solemn engagement which
one human being can contract with another. It is contract formed with a view not only to the benefit of the
parties themselves, but to the benefit of third parties; to the benefit of their common offspring, and to the moral
order of civilised society."
The declaration of Manu in aspect of Hindu marriage is that “The husband is declared to be one with the wife,
neither by sale nor by desertion is wife released from the husband Manu IX 46. Manu ordained that “a wife
should always subject herself to husband’s authority and never do anything to displease him”
In Huhhram Vs Misri Bai61, the decree of restitution was passed in the favour of husband. The wife clearly
stated that she does not want to live with her husband, still the court went ahead and the judgement was passed
against the wishes of wife.
Referring to the judgement of the Andhra Pradesh High Court in T.Sareeta case, Justice Sabyasachi Mukarji
observed that, “it cannot be viewed in the manner the learned single Judge bench of the Andhra Pradesh High
Court has viewed it and we are unable to hold that S.9 to be violative of Article 14 and Article 21 of the
Constitution”
“Whatever maybe the cause of breakdown of marriage, if there is a withdrawal from matrimonial obligations
with the intent of destroying the matrimonial consortium as well as physical separation, there is a clear sign that
the marriage is at an end.”
60
(1946) 2 All E. R. I (II) (6)
61
A.I.R.1979 M.P.144
27 | P a g e
In 1875 in Gatha Ram Mistree v. Mohita Kochia Atteah 62, Mark by J. expressed the opinion that -a decree
for restitution is a mere declaration of rights but It was argued in 1886 before the Bombay High Court that a
suit for restitution is a discredited remedy and the argument was rejected in the case of Dadaji Bhikaji v.
Rukambai63. It was there contended that a decree for restitution of conjugal rights implies that the marriage has
been consummated and that what was really being asked for was a decree for 'restitution' of conjugal rights and
that there was no authority for such a decree. In that case reference was made to Weldon v. Weldon64
The willful refusal by a spouse to have sexual intercourse is perhaps a cruel wrong. It may also amount to
desertion and in certain cases it comes under cruelty.
MARRIAGE is defined in the Encyclopedia Brittannica, as "a physical, legal and moral union between man
and woman in complete community of life for the establishment of a family." The physical union takes the first
place. The procreation of children is an essential element. On it depends the creation of the family. On the
family depends the welfare of the nation. "Marriage is rooted in the family rather than the family in the
marriage."
In Sheldon v. Sheldon65, the Court of Appeal held that a husband's persistent refusal of sexual intercourse
without explanation over a long period of time which had caused grave injury to wife's health amounted to
cruelty and justified the wife in leaving the matrimonial home.
There is nothing wrong if the law enforces cohabitation, i.e. living together. It does not and cannot enforce
sexual intercourse. That the Court enforces sexual 'intercourse is a mistaken notion. there is no wrong if he
court passed the decree of restitution in the husband's suit in Anne Saheb v. Tarabai66, "Wanton refusal of one
or other of the parties to a marriage to have sexual intercourse is a wrong thing." It is the international breach of
one of the ties of marriage.
In the case of Praveen Mehta v. Inderjit Mehta67, the husband filed the divorce petition against his wife on
the grounds of mental cruelty which included wife’s corporation in conjugal relations as a result of which
marriage was not consummated. It was held that the acts alleged by husband were grave enough to constitute
62
14 Beng.L.R. 29& (24)
63
(1886) I.L.R.10 Born (301) (25)
64
(1883) L.R. 9 P.D. 52
65
(1966) 2 All E.R. 257(33)(CA)
66
A.I.R.1970 M.P.36
67
A.I.R.2002 S.C.2582
28 | P a g e
mental cruelty. Mental cruelty is a state of mind and feeling with one of the spouses due to behaviour pattern by
other.
In the same case of harvinder kaur it was also observed that in marriage sex business is not hurried and
beastly. It is a biological necessity. It is fundamental to the marriage institution in the accepted and understood
sense. The restitution decree is essentially an attempted reconciliation. In Srikant v. Anuradha68, AIR 1980
Kant 8 it was held that “persistent refusal to have sexual intercourse amounts to cruelty.With all the cases sited
above it can be noted that conjugal rights under Hindu marriage act acts as a remedy to save the marital tie. It
has given sufficient reasonable grounds to spouse to withdraw themselves from the society of another spouse
where court does not interfere. After taking such precautions it will be an absolute wrong to say that its
restitution infringes right to life of spouse.
-Prayer- - Respondent-
PRAYER
Wherefore it is prayed, in the light of the issues raised, arguments advanced, and authorities cited, that this
hon’ble court may kindly be pleased to:
1. Dismiss the PIL filed by the Petitioner.

2. Requesting to declare that exc. II of sec. 375 is constitutional.
3. Requesting to declare that restitution of conjugal rights does not infringe right to privacy.
And pass any other order, direction, or relief that it may deem fit in the best interest of Justice,
fairness, Equity and Good Conscience.
For this act of kindness, the respondent shall duty bound forever.
68
A.I.R.1980 Kant(8)
29 | P a g e

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8TH RGNUL NATIONAL MOOT COURT

BEFORE THE HON’BLE

(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)

SOCIETY FOR WOMEN’S RIGHTS,NGO………….PETITIONER

UNION OF INDIA & ORS……………….………….RESPONDENT

TO THE CHIEF JUSTICE AND HIS COMPANION OF JUDGES

-MEMORANDUM FOR THE RESPONDENT-

8TH RGNUL NATIONAL MOOT COURT COMPETITION,2019

3. INDEX OF AUTHORITIES 4-7

8. ARGUMENT ADVANCED 12-

MEMORANDUM FOR THE RESPONDENT

8TH RGNUL NATIONAL MOOT COURT COMPETITION,2019

2. A.I.R ALL INDIA REPORT

5. CrPc CODE OF CIVIL PROCEDURE,1973

9. IPC INDIAN PENAL CODE,1860

10. Ors. OTHERS

11. UOI UNION OF INDIA

13. SCC SUPREME COURT CASES

MEMORANDUM FOR THE RESPONDENT

8TH RGNUL NATIONAL MOOT COURT COMPETITION,2019

5. HINDU MARRIAGE ACT, 1955

7. INDIAN PENAL CODE, 1860

1. DR. J.N. PANDEY, Constitution of India,53rd eds,2016

2. M.P. JAIN, Lexis Nexis Indian Constitutional law,7th eds,2016

3. Volume 1,Durga Das Basu,Lexis Nexis Shorter Constitution of India,14th edn,2009

4. Volume 2,Durga Das Basu,Lexis Nexis Shorter Constitution of India,14th edn,2009

6. Constitution of India,1950- Bare Act

7. Kusum,Cases And Materials of Family Law, 3rd edn,2013

8. R.K.Agarwala, Hindu Law,22nd edn.2007

9. Dr. S.R.Myneni, Hindu Law,1st edn,2009

MEMORANDUM FOR THE RESPONDENT

10. Dr.Paras Diwan, Modern Hindu Law, 23rd edn,2016

11. Dr.Paras Diwan, Hindu Law,

12. Indian Penal Code,1860-Bare Act

13. Satyajeet A Desai, Mulla Hindu Law, 21st edn,2010

14. Black’s Law Dictionary, 4th edn, 1968

8TH RGNUL NATIONAL MOOT COURT COMPETITION,2019

1. Action Group v. Union of India,AIR 1997 14

2. Amarsingh ji v. State of Rajasthan, AI.R.1955 S.C.504 13

3. Anne saheb v. Tarabai, AIR 1970 MP 36 27

4. Baboo Ram v. Susheela,1964 MP 73 16

5. Badri Narayan v. Savitri,(2000) DMC 552 17

6. Bhaurao v. State of maharashtra, AIR 1965 SC 1564 17

7. BL syal v. Smt. Ram syal,AIR 1968 Punj. 489 24

8. Coffee Board v. Jt. C.T.O. A.I.R.1971 S.C.870(877) 13

9. Dadaji Bhikhaji v. Rakambai 26

MEMORANDUM FOR THE RESPONDENT

11. D. N. Sharma v. Usha Sharma, A.I.R.2004 Del.198 16

12. Dr. Pradeep kumar v. State of Haryana, RCR (Criminal) 376,2008 17

13. Fertilizer Co. v. Union of India, A.I.R.1981 S.C.344 13

14. Francis Coralie v. Union Territory of Delhi, AIR 1981 746 18

17. Gopal Krishan v. Mithilesh kumari, AIR 1979 ALL 316 20

18. Govind v. State of M P, AIR 1975 (1378) 24

19. Hazi Ismail v. Competent Officer,AIR 1967 SC 1244 13

20. Harvinder Kaur v. Harminder Singh AIR 1984 Delhi 66 22

21. Huhhram v Misri Bai, AIR 1979 MP 144 26

22. Independent Thought v. Union of india, A.I.R.2017 15

23. Indra Kumari v. Subbiaah, (2003) 1 CTC 259 16

24. Jyotish v. Meera, A.I.R 1970 Cal.266 12

25. Khyerbari Tea Co. v. State of Assam, AIR1967 SC1244 13

26. Kondal v. Ranganavaki, AIR 1924 Mad 49 20

8TH RGNUL NATIONAL MOOT COURT COMPETITION,2019