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Team: Gryffindor

BEFORE THE HON’BLE SUPREME COURT OF INDIA

EXTRAORDINARY ORIGINAL WRIT JURISDICTION

WRIT PETITION (PIL )NO. ______ OF 2024

WOMEN’S ORGANIZATION.……………………PETITIONERS

V.

UNION OF INDIA…………………………………. RESPONDENT

***

***

1. Date of Presentation: 15th January 2024

2. Date of Disposal:

3. Counsel for the Petitioners: Team Gryffindor

4. Counsel for the Respondents:

5. Point of Law at issue in the case: Writ Petition (Public interest Litigation) under Art. 32 of the

Constitution of India, relating to matters regarding Art. 14,19 and 21 of the constitution of India

WRITTEN SUBMISSIONS ON BEHALF OF PETITIONER

IIT BOMBAY ABHYUDAYA MEMORIAL DRAFTING COMPETITION 2024

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-SYNOPSIS OF THE PETITION-

Ramavati Jogi and Bhupendra Jogi, are a married couple, aged 54 and 62 respectively.
They got married in 1996 according to Hindu customs. They have been married for 27
years now. Though their marriage seems ideal from the outside, the reality was very
different. The marriage has been very abusive for the wife as throughout the extent of
their marriage, the husband has been continuously forcing her into doing sexual activities
with her without her consent. The wife had been tolerating it for years now but finally
decided to speak up to the petitioner which is an NGO charitable women’s organization
that recently opened up, she came to the petitioner when her body became weak due to
old age and she could no longer take it.

The evil of Marital Rape:

The Marital rape refers to a rape wherein the penetrator is the husband of the victim, the
exception II of the IPC, 1860 and currently Section 63 of the BNS, 2023 has been given
the exception if the penetrator is the husband and it makes the exception that it is not
being considered as a rape. This exception is arbitrary and effects the Fundamental
Rights of the women and their consent and their suffering is not considered as their
penetrator often escapes the serious punishment and this exception has given the
overwhelming right to the husband to have intercourse with their wife without having the
need to take their consent.

In the light of the Mrs. Ramavati Jogi’s complaint and the survey of National Family
Health Survey where they have stated that 1 in 3 women aged have been facing this issue
without having any recourse. NGO has decided to approach the Hon’ble court to give
relief to the married women by declaring this provision as unconstitutional as it is
violative of Fundamental Rights of married women as well as it is arbitrary in nature and
does not go well with the notions of today and it needs to be declared unconstitutional.

Hence the present Petition,

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S. No. Particulars P.N.

1. Writ Petition 1-30

2. Affidavit in support of
31
Writ Petition

3. Affidavit in support .32

of Documents

4. Documents:
Annexure 1: 33
NFHS Survey

Annexure 2:
Under reporting of
34
sexual harassment
cases

Annexure 3:
Article discussing 35
Marital Rape
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DESCRIPTION OF PARTIES

PETITIONER:

1. WOMEN’S ORGANISATION NGO REPRESENTED BY HIMANSH ARORA S/O MR. PIYUSH

ARORA, AGED 50 YEARS, PERMANENT OFFICE ADDRESS, POSSANGIPUR VILLAGE,

JANAKPURI, NEW DELHI, 110056.

RESPONDENTS:

1. UNION OF INDIA
5|Page

-LIST OF ABBREVIATIONS-

ABBREVIATION FULL FORM

§ Section

Sec. Section

¶ Paragraph

& And

AIR All India Reporter

Anr. Another

RERA Real Estate Regulatory Authority

ED Enforcement Directorate

Ed. Edition

HC High Court

i.e. That is

ICA Indian Contracts Act

Mr. Mister

NGO Non-Government Organization

No. Number

Ors. Others

V. Union of India

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Records

MEMORIAL for Petitioner

6|Page

Corp. Corporation

Ed. Edition

Const. Constitution

Govt. Government

Dir’t Director

Art. Article

MEMORIAL for Petitioner

7|Page

-INDEX OF AUTHORITIES-

-JUDICIAL DECISIONS -

1. Rameshwar Prasad v. Union of India (1967), 1 SCR 602,

2. Gulabbhai Vallabbhai Desai v. Union of India, (1967) 1 SCR 602.
3 I.R Coelho v. State of Tamil Nadu, (2007) 2 SCC 1.
4. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
5. Romesh Thappar v. State of Madras, AIR 1950 SC 124
6. Janta Dal v. H.S. Chowdhary, (1992) 4 SCC 305
7. Ashok Kumar Pandey v. State of West Bengal, (2004) 3 SCC 349
8. Subhash Kumar v. State of Bihar (1991) 1 SCC 598.
[Link] Lal Chowdhury v. Union of India, A.I.R. 1951 S.C. 41
[Link] Gandhi v. UOI, (1978) AIR 597, 1978 SCR (2) 621
[Link] Bugga v. Dir't of Educ., 2010 SCC OnLine Del 2543
12. Indira Gandhi v. Raj Narain, 1975 S.C.C. (2) 159
13. Naresh Kumar v. Union of India, (2004) 4 SCC 540
14. Budhan v. State of Bihar, A.I.R. 1955 S.C. 191
15. State of W. Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75.
16. Union of India v. Indian Charge Chrome, (1999) 7 SCC 314.
17. Sakhwant Ali v. State of Orissa, A.I.R. 1955 S.C. 166.
18. Sonubhai Yeshwant Jadhav v. Bala Govinda Yadav, A.I.R. 1983 Bom. 156.
19. R.K. Dalmia v. Justice Tendulkar, A.I.R. 1958 S.C. 538.
20. Indra Sawhney v. Union of India, (2000) 1 SCC 168.
21. Jaipur Dev. Auth. v. Daulat Mal Jain, (1997) 1 SCC 35.
22. Uttar Pradesh Power Corp. v. Ayodhya Prasad, (2008) 10 SCC 139.
23. B. Prabhakar Rao v. State of Andhra Pradesh, (1986) 3 SCC 647.
24. Vikram Singh v. State of Himachal Pradesh, 2018 SCC OnLine HP 356.
25. R. v. R, [1991] U.K.H.L. 12.
[Link] of Madhya Pradesh v. Munna Choubey, (2005) 2 SCC 710.
[Link] Thought v. Union of India, (2017) 10 SCC 800.
28. R.K. Garg v. Union of India, (1981) 4 SCC 675.
29. Samvita Samvedi v. Union of India, (1996) 2 SCC 380.
30. State of Karnataka v. Krishnappa, (2000) 4 SCC 75.
31. State of Andhra Pradesh v. Bodem Sundara Rao, (1995) 6 SCC 230.

MEMORIAL FOR PETITIONER

8|Page

32. Surendra Mohan Arora v. H.D.F.C. Bank Ltd., (2014) 15 SCC 294.
33. Utkal Contractors & Joinery Pub. Ltd. v. State of Orissa, (1987) 3 SCC 279.
34. E.V. Chinnaiah v. State of Andhra Pradesh, (2005) 1 SCC 394.
35. Iftikhar Hussain Shah v. State of J.&K., 2018 SCC OnLine J&K 527
36. Shayara Bano v. Union of India, (2017) 9 SCC 1.
37. Joseph Shine v. Union of India, (2018) 2 SCC 189.
38. State of Uttar Pradesh. v. Ramdev Singh, (2004) 1 SCC 421.
39. Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1
40. Sharma Transp. v. Gov't. of Andhra Pradesh, (2002) 2 SCC 188
41. Ratan Lal v. State of Raj., 2003 SCC OnLine Raj 317 (India)
42. Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490
43. Francis Coralie Mullin v. Adm'r Union Territory of Delhi, (1981) 1 SCC 608
44. K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
45. P.U.C.L. v. Union of India, (1997) 1 SCC 301
46. Marimuthu v. Inspector of Police, 2016 SCC OnLine Mad 10175
47. Common Cause v. Union of India, (2018) 5 SCC 1
48. Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454 (
49. Santhini v. Vijaya Venketesh, (2018) 1 SCC 1
50. Sakshi v. Union of India, (2004) 5 SCC 518
51. Indu Devi v. State of Bihar, (2017) 14 SCC 525
52. State of Madhya Pradesh v. Madan Lal, (2015) 7 SCC 681
53. Z v. State of Bihar, (2018) 11 SCC 572
54. High Court on its own Motion v. State of Maharashtra, 2016 SCC OnLine Bom
8426
55. Devika Biwas v. Union of India, (2016) 10 SCC 726
56. Kalpana Pal v. State of West Bengal, 2010 SCC OnLine Cal 1985
57. Pawan Kumar v. State of Himachal Pradesh, (2017) 7 SCC 780
58. T. Sareetha v. T. Venkata Subbaiah, A.I.R. 1983 A.P. 356
59. Ashwani Kumar v. Union of India, (2019) 2 SCC 636
60. Dharam Dutt v. Union of India, (2004) 1 SCC 712
61. Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.
62. Dudgeon v. U.K., [1982] 4 E.H.R.R. 149.
63. Jarnail Singh v. State of Raj., 1971 SCC OnLine Raj 76
64. State of Andhra Pradesh v. Mc. Dowell & Co., (1996) 3 SCC 709
65. All India Democratic Women's Association (AIDWA) v. Union of India, 1989
MEMORIAL FOR PETITIONER
9|Page

AIR 1280, 1989 SCR (2) 66

66. Masroor Ahmed v. State (NCT of Delhi), 2007 SCC OnLine Del 1357.
67. State of Maharashtra v. Madhukar Narayan Madikar, (1991) 1 SCC 57.
68. Cellular Operators Ass'n of India v. T.R.A.I., (2016) 7 SCC 703.
69. V.G. Row v. State of Madras, A.I.R. 1952 S.C. 196.
70. State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501.
71. Shreya Singhal v. Union of India, (2015) 5 SCC 1.
72. Indian Young Lawyers Ass'n, 2018 SCC OnLine SC 1690
73. R v. Clarence, [1888] 22 Q.B.D. 23

MEMORIAL FOR PETITIONER

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- STATUTES –

1. CONSTITUTION OF INDIA.
2. INDIAN PENAL CODE, 1860 SEC. 375.
3. BHARTIYA NYAYA SANHITA, 2023 SEC. 63.
4. PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005,
NO. 43 OF 2005, SEC. 3.
-SITES REFERRED -

1. SCC ONLINE
2. MANUPATRA
3. MINISTRY OF HEALTH, GOVT. OF INDIA, NATIONAL FAMILY HEALTH
SURVEY- 5 (2019-2021).

-BOOKS-

1. DR. SUBASH C. KASHYAP, CONSTITUTIONAL LAW OF INDIA 476 (2008).

2. DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 689
(8th ed. 2007).
3. H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA 455 (4th ed. 2010).
4. BLACK'S LAW DICTIONARY 1084 (10th ed. 2015).
5. M.P. JAIN, INDIAN CONSTITUTIONAL LAW 1408 (8th ed. 2018).
[Link] & DHIRAJLAL, THE INDIAN PENAL CODE 2074 (32nd ed. 2010).

MEMORIAL FOR PETITIONER

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-STATEMENT OF JURISDICTION-

It is most respectfully submitted that the Present Public Interest Litigation can be filed
under Art. 32 of the Constitution of India, wherein the Supreme Court has the
Jurisdiction to hear the present petition in case of the violation of the Fundamental
Rights. The Petitioner has invoked the special provision under this Art. challenging the
constitutional validity of the Exception II of the Sec. 375 of the Indian Penal Code,
1860 and Sec. 63 of Bhartiya Nyaya Sanhita, 2023.

Hence, the petitioner has filed the present Writ Petition setting forth the facts and laws
on which these claims are based.

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-ISSUES RAISED-

THE PETITIONER PRESENTS THE FOLLOWING ISSUES IN FRONT OF THE

HON’BLE SUPREME COURT.

- ISSUE I-

WHETHER THE PRESENT PIL CAN BE HEARD BY THE HON'BLE

SUPREME COURT OF INDIA.

-ISSUE II-

WHETHER THE EXCEPTION II IS VIOLATIVE OF ARTICLE 14 OF

THE CONSTITUTION.

THE

- ISSUE III-

WHETHER THE EXCEPTION II IS VIOLATIVE OF ARTICLE 21 OF THE

CONSTITUTION

-ISSUE IV

WHETHER THE EXCEPTION II IS VIOLATIVE OF ARTICLE 19 OF THE

CONSTITUTION

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-SUMMARY OF ARGUMENTS-

1. THE PRESENT WRIT PETITION IS MAINTAINABLE

The Present Writ petition has been filed under the Art. 32 of the Constitution of
India as Public Interest Litigation (hereinafter PIL). The present PIL is
maintainable in the Hon’ble Supreme Court as the Hon’ble court has been given
the power of Judicial Review provided under the aforementioned Art., to review
and test the validity of the Exception II of the Sec. 63 of Bhartiya Nyaya Sanhita
act, 2023. (hereinafter Exception II). This Petitioner which is the Women’s
Organisation and which is the NGO which works for the protection of Rights of
the women has the Locus Standi to file the current PIL and the issue at hand is a
matter of public importance. The exception II is the violative of Fundamental
rights of all the ages.

2. THE EXCEPTION II OF SECTION 375 OF IPC, IS VIOLATIVE OF ART.

14 AS IT CREATES UNREASONABLE CLASSIFICATION.

Art. 14 creates a lot of rights and is a tool for the people to consider any arbitrary
rules set up by the government as arbitrary and in the present case the exception II
creates unreasonable classification based on the marital status of the women
which lacks intelligible differentia and it does not match with the nexus sought to
be achieved.

3. EXCEPTION II IS VIOLATIVE OF ART. 21 AS UNWANTED

INTERCOURSE CAN HARM THEIR HEALTH AND PERSONAL
DIGNITY.

The Art. 21 of Const. has guaranteed individuals with the right to life and personal
liberty and the exception II has created an issue which violates this article as the it
deprives the women of their rights to reproductive health and also deprives them,
their of their liberty as it gives the husband the sole consent and the can force the
wife for the intercourse and it violates the dignity of the women.

MEMORIAL FOR PETITIONER

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4. EXCEPTION II IS VIOLATIVE OF ART. 19 OF THE CONST.

Exception II is violative of Art. 19 as it violates the right of the women to give

consent to engage in sexual activities as they have do not come under the ambit of
Art. 19(1)(a) and they do not come under the ambit of the term reasonable
restrictions for which the art. 19 can be restricted. Therefore, the exception II is
violative of art. 19 of the constitution.

MEMORIAL FOR PETITIONER

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-ARGUMENTS ADVANCED-

[Link] PIL IS MAINTAINABLE UNDER ART. 32 OF THE

CONSTITUTION.

The Present Writ petition has been filed under the Art. 32 of the Constitution of India
as Public Interest Litigation (hereinafter PIL). The present PIL is maintainable in the
Hon’ble Supreme Court as the Hon’ble court has been given the power of Judicial
Review provided under the aforementioned Art., to review and test the validity of the
Exception II of the Sec. 63 of Bhartiya Nyaya Sanhita act, 2023. 1 (hereinafter
Exception II). This Petitioner which is the Women’s Organisation and which is the
NGO which works for the protection of Rights of the women has the Locus Standi to
file the current PIL and the issue at hand is a matter of public importance. The
exception II is the violative of Fundamental rights of all the ages.

1.1 Supreme Court has the Power Of Judicial Review.

The counsel on behalf of petitioners raised the following issue in the Hon’ble Supreme
Court has the power of Judicial review conferred by the Constitution to resolve
disputes that are regarding the limits of the Constitutional power. 2The supreme court
has been conferred the powers by the constitution under Art. 32 to hear the petition
which is violative of Fundamental Rights.3

Furthermore, The Art. 13 of the Constitution empowers the Court to strike down a law
which is violative of Fundamental Rights.4 The Supreme Court is also considered as the
final interpreter of the law. 5 Therefore, the court is requested to test the exception with
the constitutional values.

The Presumption of the law made before the independence cannot be a ground to prove
that the law in the current context is valid or justified. 6 It is important to note that the
laws have always changed according to the time and the current issue requires the
court’s urgent attention and needs to be tested with the current constitutional norms.7
1
§63 of Bhartiya Nyaya Sanhita act, 2023.
2
Rameshwar Prasad v. Union of India (1967), 1 SCR 602.
3
Indian Const Art. 32.
4
Gulabbhai Vallabbhai Desai v. Union of India, (1967) 1 SCR 602.
5
M.P. JAIN, INDIAN CONSTITUTIONAL LAW 1408 (8th ed. 2018); State of West Bengal v. Comm for
Prot. of Democratic Rts ; I.R Coelho v. State of Tamil Nadu, (2007) 2 SCC 1.
6
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
7
DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 689 (8th ed. 2007).

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In the case of Romesh Thappar v. State of Madras it was emphasised that “the High
Court and Supreme Court are the protector and guarantor of Fundamental Rights”
protector and guarantor of fundamental rights and they cannot refuse to entertain
applications seeking protection against infringement of those rights” 8 , hence the
present PIL is filed in the Hon’ble Supreme Court therefore the court can review the
law in question and test its constitutionality.

1.2 The Petitioner Has Locus Standi To File The Writ Petition.

The Counsel on behalf of petitioner respectfully submits that the petitioner has the
Locus Standi to file the writ petition, the petitioner which is the women’s organisation
has the Locus Standi to file the writ petition. Any person or any organisation working
for the public9 can file a PIL if they have bonafide intention and sufficient public
interest 10 will have Locus Standi to maintain their writ petition under Art. 32.11

The Petitioner which is the Women’s organisation is an NGO that has been working to
protect the interests of the women, has sufficient interest as well as bonafide intention
in the present matter to file the PIL. Hence, it is submitted that in the present PIL the
NGO has the Locus Standi to file the writ petition.

1.3 The present writ petition is filed as the matter is of public importance.

The counsel submits that the present writ petition is filed before the Hon'ble Court as
the subject matter relates to the marital rape which is a matter of public importance.

PIL is filed in the interest of the Public. 12 The issue currently at hand is a matter of
public importance because it is violative of Fundamental Rights of married women.
The National Health and Family Survey- 5 13 (hereinafter NHFS), has took the opinion
that, 83% of married women aged 18-49 who have experienced sexual violence,
reported their current husband as the perpetrator. This is the most recent survey
conducted by the NFHS which shows the plight of the women in the society and the
troubles that they are facing.

8
Romesh Thappar v. State of Madras, AIR 1950 SC 124.
9
Janta Dal v. H.S. Chowdhary, (1992) 4 SCC 305.
10
Ashok Kumar Pandey v. State of West Bengal, (2004) 3 SCC 349.
11
Subhash Kumar v. State of Bihar (1991) 1 SCC 598.
12
L.M. SINGHVI, CONSTITUTION OF INDIA 565 (3rd ed. 2013).
13
Ministry of Health, Gov't of India, National Family Health Survey-5 (2019-21).

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Therefore, in the light of above arguments the petitioner submits that the current matter
is an important public importance topic.

1.4 Exception II deprives Married Women of Fundamental Rights.

The Exception II is violative of Fundamental Rights of married women of all ages,

there is a gross violation of Fundamental Rights of married women, there is a violation
of Fundamental Rights of Women, due to that the present PIL has been filed. The Writ
Jurisdiction of the Hon'ble Court can be invoked in case of gross violation of
Fundamental Rights.14

The exception II is violative of the golden triangle principle established in the case of
Maneka Gandhi v. Union of India, 15 where it has violated the art. 14,19, 21, of the
constitution and hence it is important for the Hon’ble Court to hear the present PIL
under Art. 32 of the constitution as the golden triangle, Protect the individuals from
encroachment of their rights, the court in this case also ruled that any law must pass a
test to ensure that their provisions do not violate these Art.s.16

To conclude the petitioner submits that the writ petition is maintainable in the present
subject matter as the PIL filed under Art. 32 has been filed for a matter of public
importance, and the petitioner has the Locus Standi to file the current PIL and there has
been a gross violation of fundamental rights.

2. WHETHER EXCEPTION II IS VIOLATIVE OF ART. 14 OF THE MARRIED

WOMEN.

The Art. 14 of the constitution is considered to be one of the most important Art.s in it
as it has the Fountain of Justice. 17 This provision has been used to nullify laws which
are arbitrary. In the landmark case of Indira Gandhi v. Raj Narain18, the court held that
“it is imperative for the State to engage in reasonable and fair conduct, asserting the
necessity of adhering to the principles of natural justice in all state actions.”

The Exception II is violative of Art. 14 of the Const, as it has created an unreasonable

classification [2.1] and it is arbitrary in nature [2.2].

14
Chirajnjit Lal Chowdhury v. Union of India, A.I.R. 1951 S.C. 41.
15
Maneka Gandhi v. UOI, (1978) AIR 597, 1978 SCR (2) 621.
16
Id.
17
Sunita Bugga v. Dir't of Educ., 2010 SCC OnLine Del 2543.
18
Indira Gandhi v. Raj Narain, 1975 S.C.C. (2) 159.

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2.1 EXCEPTION II CREATES AN UNREASONABLE CLASSIFICATION

To pass the test of reasonability under Art. 14 of the constitution, it is important that
the classification should be based on Intelligible differentia, 19 and the classification
should have a reasonable nexus with the objective sought to be achieved by the law in
question,20 this concept was introduced in the case of State of West Bengal v. Anwar
Ali Sarkar (1952)21.

It is submitted by the petitioner that the Exception II has been kept outside the ambit of
the term “rape” defined under the IPC and the newly formed BNS. It creates two classes
of rape victims, one where the penetrator is not the husband and other where the
penetrator is the husband of the women. Here, in the latter class, the victims cannot
approach the police and cannot seek punishment for the penetrator under the IPC and
newly formed BNS because it has mentioned an exception if their penetrator is the
husband. There is no difference between rape victims based on marital status within an
indivisible class, and treating them differently is unjust. The act of rape is inherently the
same regardless of marital status, resulting in equal trauma and agony for all victims.

It is submitted by the petitioner that in the case of marital rape exceptions, where the
act of spousal rape is not criminalized, the differential treatment between marital and
non-marital rape is arbitrary because the Exception II is an unreasonable classification
as it is lacks intelligible differentia [2.1.1] as well as rational nexus with the object
[2.1.2].

2.1.1. The Classification lacks Intelligible Differentia.

The differentia, which is the basis of the classification 22 must be rational23 and should
be based on some characteristics,24 which should be found in group which has been
grouped together and not the group which has been left out. 25 Therefore, the petitioner
concludes that Exception II unreasonably creates a sub-classification of rape victims
based on marital status, treating equals within the indivisible class unequally and,

19
Naresh Kumar v. Union of India, (2004) 4 SCC 540.
20
Budhan v. State of Bihar, A.I.R. 1955 S.C. 191.
21
State of W. Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75.
22
Id.
23
Union of India v. Indian Charge Chrome, (1999) 7 SCC 314.
24
Sakhwant Ali v. State of Orissa, A.I.R. 1955 S.C. 166.
25
UDAI RAJ RAI, FUNDAMENTAL RIGHTS AND THEIR ENFORCEMENT 549 (2011).

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hence, violating the principles of equality under Art. 14 of the Const. as the basis is A.
ultra vires and B. basis of classification is arbitrary.

A. The basis of classification Ultra-vires.

The basis of the classification is reasonable until it is ultra vires 26, i.e. the
provisions of the constitution has prohibited that classification expressly. 27
Equality is the most important and basic feature of the const. 28 and treatment of
equals unequally would be ultra-vires.29 The petitioner submits that the current
classification is violative of Art. 14. 30 There is no intelligible differentia in sub
classifying an indivisible class which treats equals as unequally.31

The petitioner submits that the afore-mentioned exception II is unreasonable

creates a class of victims which is based on their marital status and exempts
husband based on their marital status. The crime of rape is same whether done by
husband or not,32 a rapist should be termed a rapist 33 whether the rape is done in a
marriage or not. The act of rape is inherently the same regardless of marital status,
resulting in equal trauma and agony for all victims and the ravishment of her
dignity,34 and the punishment should be the same irrespective of the victim’s
marital status. 35

The petitioner submits that rape victims irrespective of their marital status are
considered to be of one indivisible class and the exception II is treats equals as
unequally and hence it is ultra vires.

B. The basis of classification is arbitrary

If the basis of the classification is arbitrary and unreasonable then it can be said
that it is not based on intelligible differentia, 36 furthermore, in the case of Savita
Samvedi v. Union of India, it was held that the classification which is based on the
marital status is unfair, unreasonable and it should be struck down under Art. 14.37

26
Sonubhai Yeshwant Jadhav v. Bala Govinda Yadav, A.I.R. 1983 Bom. 156.
27
R.K. Dalmia v. Justice Tendulkar, A.I.R. 1958 S.C. 538.
28
Indra Sawhney v. Union of India, (2000) 1 SCC 168.
29
Jaipur Dev. Auth. v. Daulat Mal Jain, (1997) 1 SCC 35.
30
Uttar Pradesh Power Corp. v. Ayodhya Prasad, (2008) 10 SCC 139.
31
B. Prabhakar Rao v. State of Andhra Pradesh, (1986) 3 SCC 647.
32
Vikram Singh v. State of Himachal Pradesh, 2018 SCC OnLine HP 356.
33
R. v. R, [1991] U.K.H.L. 12.
34
State of Madhya Pradesh v. Munna Choubey, (2005) 2 SCC 710.
35
Independent Thought v. Union of India, (2017) 10 SCC 800.
36
R.K. Garg v. Union of India, (1981) 4 SCC 675.
37
Samvita Samvedi v. Union of India, (1996) 2 SCC 380.

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The petitioner submits that the exception II classifies that the victims of a crime as
heinous as rape is being failed to be provide protection because of existence of the
exception II as it does not recognize rape done by the husband of the wife. And
hence it is irrational and arbitrary.

2.1.2 The classification does not have reasonable nexus with the objective.

The petitioner submits that the classification does not have a reasonable nexus with
the objective sought to be achieved by the offense of the rape, as it prohibits sexual
offense because firstly, the object of the offense of rape is to protect the dignity of
the women and to punish the person who has committed such a heinous act (a); and
secondly the classification is inconsistent and contradicts the objective of the
provision (b).

(a) The object is to protect the dignity of women and punish the person who has
committed the act.
The petitioner submits that the § 375 of IPC and §63 of BNS is a criminal law
which aims to protect the women from the offense of rape and also aims to protect
their dignity of a women who is a victim of this heinous crime 38 and also to
punish the offenders with an appropriate sentence.39

(b) The classification is contradictory with the objective of the provision.

Reasonable nexus with the differentia and the object of law should be
interconnected and be related.40 If the classification does not go with the
objective41 or contrary42 to the objective which has to be achieved for which the
law is established, then the said law violative of Art. 14 and is unconstitutional.43

Therefore, the petitioner submits that the objective which is sought to be achieved
and the classification is contradicting the very objective of protection of dignity of
women. When the women cannot seek the protection of Law then the law is
violative of Art. 14, hence this exception II creates an unreasonable classification
based on marital status, whereas the rape is considered to be rape irrespective of it
being done by husband or not.

38
State of Karnataka v. Krishnappa, (2000) 4 SCC 75.
39
State of Andhra Pradesh v. Bodem Sundara Rao, (1995) 6 SCC 230.
40
H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA 455 (4th ed. 2010).
41
Surendra Mohan Arora v. H.D.F.C. Bank Ltd., (2014) 15 SCC 294.
42
Utkal Contractors & Joinery Pub. Ltd. v. State of Orissa, (1987) 3 SCC 279.
43
E.V. Chinnaiah v. State of Andhra Pradesh, (2005) 1 SCC 394.

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2.2 EXCEPTION II IS EVIDENTLY ARBITRARY IN NATURE.

If an act is arbitrary, then it is said that the act is against the equality principles and
violative of Art. 14.44 A legislation is evidently arbitrary in the context that that it is
unfair and unreasonable, discriminatory in nature and denies equal treatment. 45 It is
submitted that exception does not have rational basis (2.2.1), and the exception is
discriminatory and formed without any pre-determined principle (2.2.2).

2.2.1 Exception II is irrational and based on Archaic Laws

It is submitted that the exception II is irrational because it is based on ideals of

marriage that are outdated (A) and it is based on pre independence old laws (B).

A. Exception II is based on ideals of marriage that are outdated

The exception II is based on the Victorian model which treated the women as the
possession of the husband, is evidently arbitrary in the current times. 46 The
exception at that time was to allow to give the husband the overwhelming right
over the women to have intercourse with the wife without taking her prior
consent.
First, the immunity provided to husbands due to this exception can be seen as the
result of the old thought process and based on old notion, where the wives were
not treated as on equal footing as the husband and considered as the personal
property of the husband.47

Secondly, it is submitted that the exception II is outdated and it is definitely not in

conformity with the constitutional morality. 48 The common law rule of this
exception is absurd and arbitrary to the married women.49

Hence it is asserted that the exception II is based on outdated ideals and does not
go together with the ideals of current generation.

B. Based on Pre-independence old laws.

44
Iftikhar Hussain Shah v. State of J.&K., 2018 SCC OnLine J&K 527
45
Shayara Bano v. Union of India, (2017) 9 SCC 1.
46
Joseph Shine v. Union of India, (2018) 2 SCC 189.
47
Justice J.S. Verma (Retd.), Report of the Comm. on Amendments to Criminal Law, (January 13, 2024,
04:45 PM).
48
Supra note 46.
49
Supra note 33.

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A law which is pre-independence and which does not go together with the
constitutional morality would become evidently arbitrary, and the law will lose its
rational.50

Firstly, marriage in today’s time is considered a union where both partner are
considered to be equal to each other, and the consent of both are essential,
furthermore, the wife is not under any obligation to satisfy the sexual needs of the
husband.51

Secondly, the marriage in a rule of constitutional norms is based on the equality

between both the husbands and wife. Both Husband and wife have their own
liberty, equality and dignity.52 Furthermore, both the spouses are entitled to take
decisions according to their own conscience and one must have the ability to
pursue the human desire for the fulfilment.53

Hence it is submitted that exception II which is based on such pre-independence

ideals where women were not seen as an equal to their husband is clearly arbitrary
and violates Art. 14.

2.2.2 Exception II is discriminatory and formed without any ideals or principals.

An act formed by the legislature would be seen as clearly and evidently arbitrary if it
is not formed on any reasonable grounds and lacks determining principles. 54 An act is
said to be lacking any sufficient principle if it is found to be irrational, acting to reason
or judgement depending upon will alone.55

The petitioner contents that a husband should come under the lens of the prosecution
in the offense of the rape in the same way they are considered as an offender under
other provisions of §.3 of Domestic Violence Act, 2005 and other IPC offences.56

Further it is contended that the discriminatory is irrational and unreasonable as the

57
husband is charged for other offenses but is saved because of the heinous crime.

50
State of Uttar Pradesh. v. Ramdev Singh, (2004) 1 SCC 421.
51
Supra note 33.
52
Preamble to the constitution.
53
Supra note 6.
54
Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1
55
Sharma Transp. v. Gov't. of Andhra Pradesh, (2002) 2 SCC 188
56
The Protection of Woman from Domestic Violence Act, 2005, No. 43 of 2005, Acts of Parliament, 2005, §
3.
57
Ratan Lal v. State of Raj., 2003 SCC OnLine Raj 317 (India).

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This crime destroys the dignity and makes a mental health and physical health of
women on an emotional toll.58 The offense of the rape kills the soul of the victim. 59

Hence it is submitted that the exception II is violative of Art. 14 because it is arbitrary

and creates unreasonable classification and is evidently arbitrary.

C.

58
Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490.
59
Id.

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[Link] EXCEPTION 2 IS VIOLATIVE OF ART. 21 OF THE CONSTITUTION.

Art. 21 of Const. guarantees individuals their Fundamental Right to life and liberty. 60
It is submitted by the petitioners that exception II has violated the art. 21 as it has
deprived the married women their right to life and personal liberty because firstly
exception II violates the right to privacy of married women (3.1); secondly, exception
II has also violated their right of reproductive autonomy (3.2); and lastly exception II
also violates the right to health of a women.

3.1 The Exception II is violative of Right to Privacy.

The right to privacy is a fundamental right 61 which has emerged from the right to life
and personal liberty guaranteed under art. 21 of the const.62 This right to privacy has
guaranteed the individual the right of the body’s retention of their integrity , 63 which
is the individual’s right to his own personal space.64 Furthermore, it gives the
individual the right to self determination 65 which includes sexual self determination
and the women have the right to determine their sexual activities on their own.66

A person may surrender his or her bodily autonomy to another person with her will 67
and the consent for sexual activities is a matter of own choice. 68 It is the matter of
choice for an individual to choose their partner and their bodily autonomy to decide
under what circumstances would she engage in sexual activity.69

The petitioner also contends that the heinous crime such as rape when happens
irrespective of marriage or not,70 is a violation of women’s bodily autonomy and
invasion into her dignity and interference with her sexual autonomy.71

Therefore, the petitioner contends that exception II has given husband overwhelming
rights over the bodily autonomy of women, without being punished for doing such a
serious act is violative of art. 21 guaranteed under the const.
60
Francis Coralie Mullin v. Adm'r Union Territory of Delhi, (1981) 1 SCC 608.
61
K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
62
P.U.C.L. v. Union of India, (1997) 1 SCC 301.
63
Marimuthu v. Inspector of Police, 2016 SCC OnLine Mad 10175.
64
Common Cause v. Union of India, (2018) 5 SCC 1.
65
Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454.
66
Santhini v. Vijaya Venketesh, (2018) 1 SCC 1.
67
Sakshi v. Union of India, (2004) 5 SCC 518.
68
Supra note 6.
69
Supra note 46.
70
Indu Devi v. State of Bihar, (2017) 14 SCC 525.
71
State of Madhya Pradesh v. Madan Lal, (2015) 7 SCC 681.

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3.2 Exception II violates the Right to Reproductive Choice of Married women

The right to make the choice for the reproduction is a fundamental right which is
guaranteed to the women under Art. 21. 72 This right is reserved for the married
women so that they can make decisions when they are ready and think that they are fit
for reproducing a child. It is based on the women’s sexual and procreative nature. 73
The exception II violates the right of married women to make their own reproductive
choice because, Firstly, this is violative of married women to participate in their
sexual activity(a), secondly it violates the reproductive autonomy of the women.

A. The exception violates the right to choose of women to not to participate in

intercourse.

The fundamental right to reproductive choice is also equivalent to dignity of a

women including the right to abstain from reproduction and sexual intercourse. 74
Further, the legislature which imposes the sexual cohabitation between partners
that are unwilling is amounting to forced sex 75 or forcible marital intercourse and
destroys the reproductive autonomy of the individual.76

Therefore, the petitioner submits that the exception II promotes such non-
consensual sexual intercourse between the married couple where the married
women is unwilling and her husband forcing her would be exception to the penal
provisions violates the right to choose not to participate in sexual activity for a
married woman.

B. The exception II violates the decisional autonomy given to the married women.

The right to live with dignity also includes the decisional power or autonomy, the
intimate decisions are personals decisions and are under the private life of the
person.77 Decision to engage in sexual intercourse involve personal decisions and
consists of one’s procreative nature and decision is made in respect to intimate
relations.

72
Z v. State of Bihar, (2018) 11 SCC 572
73
High Court on its own Motion v. State of Maharashtra, 2016 SCC OnLine Bom 8426
74
Devika Biwas v. Union of India, (2016) 10 SCC 726
75
Kalpana Pal v. State of West Bengal, 2010 SCC OnLine Cal 1985
76
Pawan Kumar v. State of Himachal Pradesh, (2017) 7 SCC 780
77
T. Sareetha v. T. Venkata Subbaiah, A.I.R. 1983 A.P. 356

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The petitioners submits that a women should enjoy the decisional autonomy
regardless of her marital status and the hence it is submitted that the exception II is
violative of dignity of the married women’s decisional autonomy.

3.3 Exception II violative of Right to health of married women.

The right to health is a fundamental right guaranteed under Art. 21. 78 It is the
inseparable right to have the freedom to protect from their sexual and reproductive
health and this freedom is vested in women irrespective they are married or not.

Therefore, the petitioner contends that the heinous crime of rape causes grave mental
as well as physical injuries for the women and this exception in the Indian laws which
has not yet criminalized the rape for the husband violates this right to health of the
married women and hence this exception has violated the right to health of married
women which is guaranteed under art. 21.

In conclusion the petitioner submits that the Exception II is violative of art. 21 of the
constitution which has guaranteed the right to life and personal liberty of married
women.

78
Ashwani Kumar v. Union of India, (2019) 2 SCC 636.

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4. EXCEPTION II IS VIOLATIVE OF RIGHT TO FREEDOM OF WOMEN.

The issue of Marital Rape is being challenged by the petitioner as it is violative of the
Fundamental Right of Speech and Expression guaranteed under Art. 19(1)(a) of the
constitution. The initial test of the said exception should be to determine whether it
falls under the ambit of the art.19(1)(a) and second test would be whether the
exception 2 falls under the ambit of reasonable restrictions mentioned under art. 19(2)
to Art. 19(6).79

It is submitted by the counsels on behalf of petitioner that the exception II is violative

of Art. 19(1)(a) as it deprives the married women of their right to give their consent
[4.1], and it is also not under the ambit of reasonable restriction. [4.2]

4.1 The Married Women have the Fundamental Right to give consent.

The Art. 19(1)(a)80 of the Constitution has guaranteed the citizens the Fundamental
right to freedom of speech and expression. The term “expression” has many a lot of
interpretations and has a wide ambit81. One such interpretation can be can be said that
the women have the right to give consent to engage in sexual acts, and the women is
entitled to her choice of whether to give consent or not.82

The Choice which is given to the individual to engage in sexual activity is under the
ambit of expression of one’s sexual preference.83 This freedom of making the choice to
decide whether to give consent to consensual adult relationships without the
interference of the state is a Fundamental Human Right.84

Secondly, this choice shall be given to all the women irrespective of their marital
status or not, the act of sexual intercourse shall go on together with the consent. 85 The
fundamental right of giving consent means that the women shall have the right to give
consent as well as refuse consent if they are unwilling.

Therefore, it is submitted that the right of married women to give consent comes under
the ambit of art.19(1)(a) of the constitution and exception II violates that.

79
Dharam Dutt v. Union of India, (2004) 1 SCC 712.
80
Article 19(1)(a), Constitution of India.
81
Id.
82
supra note 61.
83
Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.
84
Dudgeon v. U.K., [1982] 4 E.H.R.R. 149.
85
Jarnail Singh v. State of Raj., 1971 SCC OnLine Raj 76.

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4.2 The Exception II has imposed an unreasonable restriction

It is submitted that the state in the case of Andhra Pradesh v. Mc Dowell, 86 it was held
that “an enactment if challenged as violative of any of the fundamental rights under
the clause (a) of the Art. 19(1) could be struck down if the restriction imposed by it is
not under the ambit of Art. 19(2).”87

Through the points mentioned below the petitioner submits that the restrictions
imposed by the exception II is unreasonable restrictions not covered under the ambit
of Art. 19(2)- Art.19(6).

4.2.1 The exception II imposes a restriction on a women’s right to give consent to

engage in sexual intercourse within the marriage.

The exception II has imposed an unreasonable restriction on the women’s fundamental

right to give consent to engage in sexual activities. The act of engaging in intercourse
where the wife has said “no” should come under rape. The moral right of a married
women to reject unwelcome and coerced sexual contact is at issue in this case.
Married women do not shed their right to consent and be free from rape by just being
married.88

The effectiveness of exception II must be how this has affected the liberties which are
given to the women given to them by the constitution. 89 This exception has deprived
the married women of their consent. This exception gives man the overwhelming right
to have intercourse without taking prior consent of the wife. 90 In this case the wife’s
consent is taken to be implied in having the intercourse 91 at the consent of the husband
only.92 Therefore, this exception is arbitrary 93 and imposes a restriction on the
women’s right to give her consent to engage in sexual activities.

86
State of Andhra Pradesh v. Mc. Dowell & Co., (1996) 3 SCC 709.
87
Article 19(2), Constitution of India.
88
All India Democratic Women's Association (AIDWA) v. Union of India, 1989 AIR 1280, 1989 SCR (2)
66.
89
Supra note 61
90
Saurabh Mishra & Sarvesh Singh, Marital Rape-Myth, Reality and Need for Criminalization, 12 WEB. L.
J. 22, 24- 27 (2003).
91
Masroor Ahmed v. State (NCT of Delhi), 2007 SCC OnLine Del 1357.
92
M. Foucault, To Have and to Hold: The Marital Rape Exemption and the Fourteenth Amendment, 99
HARV. L. REV. 1255, 1267-1269 (1986)
93
State of Maharashtra v. Madhukar Narayan Madikar, (1991) 1 SCC 57.

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4.2.2. The restriction imposed by exception II on the Free consent is

unreasonable.

Any restriction which is imposed on the right to freedom under art. 19(1)(a) is
considered to be unconstitutional,94if the said restriction does not fall under the ambit
of the reasonable restriction under art. 19(2). 95 Constitutional morality is considered to
be the soul of the Constitution, which can be found in the preamble to the
constitution,96 where it has declared the aspirations along with the ideals found in part
III of the constitution.97

The term “Morality” if read under the ambit of the art. 19 should be construed as
‘constitutional morality’ and not ‘sexual morality’98 or ‘public morality’.99 Any old
law that violates this very ‘constitutional morality’ is unreasonable and arbitrary. 100

The petitioner submits that the exception II, which has provided a legal sanction to the
husband to rape his wife, within the ambit of marriage is unreasonable and protects the
old notions of sexual morality.101 The old notion where the married women was
considered as the chattel of the husband, and her consent was not considered. 102 Hence
this restriction is not overlapping with the principles of free consent and thus not
covered under the ambit of constitutional morality under art.19(2).

In conclusion the petitioner humbly submits that the exception II which imposes
restriction on the married women is inconsistent with the constitutional morality and it
imposes unreasonable restriction on the married women as it does not come under the
ambit of art.19(2).

94
Cellular Operators Ass'n of India v. T.R.A.I., (2016) 7 SCC 703.
95
V.G. Row v. State of Madras, A.I.R. 1952 S.C. 196.
96
Preamble to the Indian Constitution.
97
State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501.
98
Shreya Singhal v. Union of India, (2015) 5 SCC 1.
99
Indian Young Lawyers Ass'n v. State of Kerala, 2018 SCC OnLine SC 1690.
100
Joseph Shine, supra note. 46.
101
Elizabeth Pleck, Criminal Approaches to Family Violence 1640- 1980, 11 CRIM. & JUST. L.J. 50,
77 (1989)
102
R v. Clarence, [1888] 22 Q.B.D. 23.

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-PRAYER-

Wherefore, in light of the issues raised, arguments advanced, reasons given and authorities cited,
this hon’ble court may be pleased to adjudge and declare that:

1. THE PRESENT WRIT PETITION AS MAINTAINABLE

2. THE EXCEPTION II, OF SEC. 63 OF BNS IS VIOLATIVE OF FUNDAMENTAL RIGHTS
OF MARRIED WOMEN.
3. EXCEPTION II IS UNCONSTITUTIONAL.
4. EXCEPTION II SHALL BE CRIMINALISED.

and pass any such order or directions the hon’ble court deems fit and proper in the furtherance of
justice, equity, and good conscience, all of which is respectfully submitted.

Sd /-
Counsel for Petitioners

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IN THE HON’BLE SUPREME COURT OF INDIA

EXTRAORDINARY ORIGINAL JURISDICTION

WRIT PETITION (PIL) No. ____2024

PETITIONER VS. RESPONDENTS

Women’s Organization vs. Union of India

AFFIDAVIT IN SUPPORT OF THE PETITION

That I, Mr. Arora s/o Mr. Piyush Hora, aged 50 years, Permanent Resident of
House:
1. That I am representing the NGO Women’s organisation which is the
petitioner in the present case and I am well conversant with the facts and
circumstances of the case.
2. That the Annexed writ petition has been drafted by me and that I have
carefully gone through the contents of the case and understood the same
fully well.
3. That the averments regarding facts contained in the Annexed writ
petition are true and correct to my personal knowledge.
4. That the legal submissions made in the writ petition are based on legal
advice of various professors, and advocates which are believed to be
true.
VERIFICATION:

I, the above-named deponent, do hereby swear in the name of God and verify that the contents of
the above affidavit are true to the best of my personal knowledge and no part thereby is false and
nothing has been concealed therein.

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IN THE HON’BLE SUPREME COURT

EXTRAORDINARY ORIGINAL JURISDICTION

WRIT PETITION (PIL) No. ___2024

PETITIONER VS. RESPONDENTS

Women’s Organisation vs. Union of India

AFFIDAVIT IN SUPPORT OF THE DOCUMENTS

I, Mr. Himansh Arora s/o Mr. Piyush Arora, aged 50 years,

Permanent Resident of House No. 54, Jannakpuri, and office at
Possangipur village, Jannakpuri do hereby state on oath as under:
1. That I am representing the NGO Women’s Organisation
which is the petitioner in the present case and I am well
conversant with the facts and circumstances of the case.
2. That the documents with the writ petition as Annexure-1
is true and correct copy of its original.

VERIFICATION:

I, the above-named deponent, do hereby swear in the name of God and verify that the
contents of the above affidavit are true to the best of my personal knowledge and no
part thereby is false and nothing has been concealed therein.

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Annexure 1: National Family Health Survey data on Sexual Violence.

MEMORIAL for RESPONDENT

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Annexure 2: Under reporting of sexual violence.

MEMORIAL for RESPONDENT

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Annexure 3: Article on Marital Rape, discussing about sexual abuse of Women

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PREMIUMSUBSCRIBE

 Data Stories
 Data Focus

MARITAL RAPE: MOST MARRIED WOMEN ARE SEXUALLY

ABUSED BY THEIR HUSBANDS, SAYS NFHS DATA

Parvathi Benu Updated - May 16, 2022 at 02:47 PM.

AMONG MARRIED WOMEN AGED 18-49 WHO HAVE EVER EXPERIENCED SEXUAL
VIOLENCE, 83% REPORT THEIR CURRENT HUSBAND AND 13% REPORT A FORMER
HUSBAND AS PERPETRATOR

MEMORIAL for RESPONDENT