TEAM CODE: TC-04R

BEFORE THE HONORABLE SUPREME COURT OF INDIA

8TH RGNUL – NATIONAL MOOT COURT COMPETITION, 2019

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

V.

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

UNDER ARTICLE 32 OF THE INDIAN CONSTITUTION

WRIT PETITION NO. W.P./________/2019

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT

MEMORIAL for RESPONDENT [TABLE OF CONTENTS]

TABLE OF CONTENTS

LIST OF ABBREVIATIONS .............................................................................................. III

INDEX OF AUTHORITIES ............................................................................................... VII

STATEMENT OF JURISDICTION ............................................................................... XXII

STATEMENT OF FACTS ............................................................................................. XXIII

ISSUES RAISED..............................................................................................................XXIV

SUMMARY OF ARGUMENTS ...................................................................................... XXV

ARGUMENTS ADVANCED .................................................................................................. 1

I. THE PRESENT WRIT PETITION IS NOT MAINTAINABLE BEFORE THE HON’BLE SUPREME
COURT OF INDIA ..................................................................................................................... 1

A. The Petitioner does not have locus standi .................................................................. 1

i. There is no violation of fundamental rights ........................................................... 2

ii. The petition is not in public interest ...................................................................... 2

B. Striking down the Exception II to § 375 of Indian Penal Code would amount to
Judicial Legislation ............................................................................................................ 3

II. EXCEPTION II TO § 375 OF THE INDIAN PENAL CODE DOES NOT VIOLATE ARTICLE 14
OF THE INDIAN CONSTITUTION .............................................................................................. 3

A. Exception II makes a classification based on intelligible differentia ........................ 4

B. The differentia has a reasonable nexus with the object ............................................. 5

i. Exception II rules out the possibility of false rape complaints .............................. 6

ii. Exception II rules out the practical and technical difficulties that would arise in
such legal proceedings ................................................................................................... 7

a. Near impossibility on the part of the husband to prove his innocence .............. 7

b. Circumstantial evidence would not prove act of alleged the rape within marriage
guilt beyond reasonable doubt ................................................................................... 8

III. EXCEPTION II TO § 375 OF THE INDIAN PENAL CODE DOES NOT VIOLATE ARTICLE 19
OF THE INDIAN CONSTITUTION .............................................................................................. 9

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A. Exception II does not violate the freedom of speech and expression of a married
woman ................................................................................................................................ 9

B. In Arguendo, Exception II Imposes a reasonable restriction ................................... 10

i. The restriction is prescribed by law and is not vague .......................................... 10

ii. The restriction is imposed in public interest ........................................................ 12

iii. The restriction imposed is proportionate to the legislative aim ........................... 12

IV. EXCEPTION II TO § 375 OF THE INDIAN PENAL CODE DOES NOT VIOLATE ARTICLE
21 OF THE INDIAN CONSTITUTION ....................................................................................... 13

A. Exception II protects the right to privacy of the married couple ............................. 14

i. Exception II protects the privacy and sanctity of institution of marriage ............ 14

ii. Exception II protects the conjugal rights of the married individuals ................... 15

B. Adequate Legislations are there to deal with offences of sexual abuse within marriage
.................................................................................................................................. 16

i. Adequate legislations are provided under the Indian Penal Code, 1860 ............. 17

ii. Adequate legislations are provided under the Protection of Woman from Domestic
Violence Act, 2005 ...................................................................................................... 18

PRAYER ......................................................................................................................... XXVII

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MEMORIAL for RESPONDENT [LIST OF ABBREVIATIONS]

LIST OF ABBREVIATIONS

ABBREVIATIONS FULL FORM

& and

§ §

¶ Paragraph

A.I.R. All India Reporter

Adm’r Administrator

Art. Article

Ass’n Association

Bom. Bombay

C.B.I Central Bureau of Investigation

Cal. Calcutta

Can. Canada

Co. Company

Comm’n. Commission

Const. Constitution

Corp. Corporation

Dec. December

Del. Delhi

E.C.H.R. European Commission of Human Rights

E.H.R.R. European Human Right Report

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MEMORIAL for RESPONDENT [LIST OF ABBREVIATIONS]

Ed. Edition

Educ. Education

Found. Foundation

G.A. General Assembly

Gov’t. Government

Guj. Gujarat

H.P. Himachal Pradesh

Hon’ble Honourable

i.e. That is

ICCPR International Covenant on Civil and

Political Rights

Id. Ibidem

Inst. Institution

Int’l International

IPC Indian Penal Code

J. & K. Jammu and Kashmir

Kar. Karnataka

Ker. Kerala

Ltd. Limited

M.P. Madhya Pradesh

Mad. Madras

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MEMORIAL for RESPONDENT [LIST OF ABBREVIATIONS]

Mar. March

Mun. Municipal

Nat’l National

NGO Non-Governmental Organisation

NCRB National Crime Records Bureau

N.Z. New Zealand

N.Z.L.R. New Zealand Law Reporter

No. Number

Ors. Others

P.&H. Punjab and Haryana

Para Paragraph

PIL Public Interest Litigation

Prot. Protection

Pvt. Private

P.W.D.V.A. Protection of Women from Domestic

Violence Act

Raj. Rajasthan

Res. Resolution

Rev. Review

S.E.B.I. Securities and Exchange Board of India

S.C. Supreme Court

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MEMORIAL for RESPONDENT [LIST OF ABBREVIATIONS]

S.C.C. Supreme Court Cases

S.C.R. Supreme Court Reporter

SWR Society for Women’s Rights

Sec’y. Secretary

Soc. Social

Supp. Supplementary

TRAI Telecom Regulatory Authority of India

U.S. United States

U.D.H.R. Universal Declaration of Human Rights

U.N.T.S. United Nations Treaty Series

v. Versus

viz. Namely

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MEMORIAL for RESPONDENT [INDEX OF AUTHORITIES]

INDEX OF AUTHORITIES

SUPREME COURT OF INDIA CASES

A. Jayachandra v. Aneel Kaur, A.I.R. 2005 S.C. 534 (India) 17

Acharya Maharajshri v. State of Gujarat, (1975) 1 S.C.C. 11 (India) 13

Ajay Goswami v. Union of India, (2007) 1 S.C.C. 143 (India) 10

Andhra Indus. Works v. Chief Controller of Imports, (1974) 2 S.C.C. 348 (India) 2

Arjun Singh v. State of Himachal Pradesh, (2009) 4 S.C.C. 18 (India) 7

Arnesh Kumar v. State of Bihar, (2014) 8 S.C.C. 469 (India) 6

Arunachala Nadar v. State of Madras, A.I.R. 1959 S.C. 300 (India) 13

Asha Ranjan v. State of Bihar, (2017) 4 S.C.C. 397 (India) 13

Ashok Kumar Pandey v. State of West Bengal, (2004) 3 S.C.C. 349 (India) 2

Ashutosh Gupta v. State of Rajasthan, (2002) 4 S.C.C. 34 (India) 4

B.P. Sharma v. Union of India, (2003) 7 S.C.C. 309 (India) 13

B.P. Singhal v. Union of India, (2010) 6 S.C.C. 331 (India) 2

Bachan Singh v. State of Punjab, (1980) 2 S.C.C. 84 (India) 14

Bal Ram Bali v. Union of India, (2007) 6 S.C.C. 805 (India) 3

Baldev Singh v. Surinder Mohan Sharma, (2003) 1 S.C.C. 34 (India) 14

Bandhua Mukti Morcha v. Union of India, (1984) 3 S.C.C. 161 (India) 1

Bharat Shantilal Shah v. The State of Maharashtra, (2008) 13 S.C.C. 5 (India) 11

Bhushan Power & Steel Ltd. v. Rajesh Verma, (2014) 5 S.C.C. 551 (India) 2

Binoy Viswam v. Union of India, (2017) 7 S.C.C. 59 (India) 13

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MEMORIAL for RESPONDENT [INDEX OF AUTHORITIES]

Bodhisattwa Gautam v. Subhra Chakraborty, A.I.R. 1996 S.C. 722 (India) 2

Budhan v. State of Bihar, (1955) 1 S.C.R. 1045 (India) 5

Budhan v. State of Bihar, A.I.R. 1955 S.C. 191 (India) 4

Calcutta Gas Co. Ltd. v. State of West Bengal, A.I.R. 1962 S.C. 1044 (India) 1

Cellular Operators Ass’n of India v. T.R.A.I., (2016) 7 S.C.C. 703 (India) 12

Census Comm’r v. R. Krishnamurthy, (2015) 2 S.C.C. 796 (India) 3

Chandmal v. State of Rajasthan, 1976 1 S.C.C. 621 (India) 8

Chintaman Rao v. State of Madhya Pradesh, A.I.R. 1951 S.C. 118 (India) 12

Common Cause v. Union of India, (2014) 6 S.C.C. 552 (India) 2

D.B. Singh v. Union of India, (2004) 3 S.C.C. 363 (India) 1

Dattaraj Nathuji Thaware v. State of Maharashtra, (2004) 3 S.C.C. 349 (India) 1

Dayabhai Chhaganbhai Thakker v. State of Gujarat, (1964) 7 S.C.R. 361 (India) 8

Devidas Ramachandra Tuljapurkar v. State of Maharashtra, (2015) 6 S.C.C. 1 9

(India)

Dhirendra Pandua v. State of Orissa, (2008) 17 S.C.C. 311 (India) 4

Dinesh v. State of Rajasthan, (2006) 3 S.C.C. 771 (India) 7

Dipak Bose v. State of West Bengal, (1973) 4 S.C.C. 43 (India) 16

Duryodhan Rout v. State of Odisha, (2015) 2 S.C.C. 783 (India) 8

Express Newspapers v. Union of India, A.I.R. 1958 S.C. 578 (India) 13

Federation of Bar Ass’n in Karnataka v. Union of India, (2000) 6 S.C.C. 715 (India) 1

Fertilizer Corp. Kamgar v. Union of India, (1981) 1 S.C.C. 568 (India) 1

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MEMORIAL for RESPONDENT [INDEX OF AUTHORITIES]

Francis Coralie Mullin v. Adm’r Union Territory of Delhi, (1981) 1 S.C.C. 608 14
(India)

G. Krishta Goud & Bhoomaiah v. State of Andhra Pradesh, (1976) 1 S.C.C. 157 3
(India)

Ganga Ram v. Union of India, (1970) 1 S.C.C. 377 (India) 5

Gauri Shankar v. Union of India, (1994) 6 S.C.C. 349 (India) 4

Gobind v. State of Madhya Pradesh, (1975) 2 S.C.C. 148 (India) 14

Gurbax Singh v. Harminder Kaur, A.I.R. 2011 S.C. 514 (India) 17

Harakchband v. Union of India, A.I.R. 1970 S.C. 479 (India) 4

Hathisingh Mfg. Co. Ltd. v. Union of India, (1960) 3 S.C.R. 528 (India) 12

Hindi Hitrashak Samiti v. Union of India, A.I.R. 1990 S.C. 851 (India) 2

Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 S.C.C. 165 (India) 18

Inder Singh v. State (Delhi Administration), (1978) 4 S.C.C. 161 (India) 8

Inderjeet Singh Grewal v. State of Punjab, (2011) 12 S.C.C. 588 (India) 12

Indra Sarma v. V.K.V. Sarma, (2013) 15 S.C.C. 755 (India) 5,9

Jagannath Prasad v. State of Uttar Pradesh, (1962) 1 S.C.R. 151 (India) 4

Jagraj Singh v. Birpal Kaur, (2007) 2 S.C.C. 564 (India) 13

Jaharlal Das v. State of Orissa, (1991) 3 S.C.C. 27 (India) 8

Jalan Trading Co. v. Mill Mazdoor Sabha, (1967) 1 S.C.R. 15 (India) 5

Janata Dal v. H.S. Chowdhary, (1992) 4 S.C.C. 305 (India) 1

John Vallamattom v. Union of India, (2003) 6 S.C.C. 611 (India) 4

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MEMORIAL for RESPONDENT [INDEX OF AUTHORITIES]

Joseph Shine v. Union of India, 2018 S.C.C. OnLine S.C. 1676 (India) 14, 15

Juveria Abdul Majid Patni v. Atif Iqbal Mansoori, (2014) 10 S.C.C. 736 (India) 18

K. Srinivas Rao v. D. A. Deepa, (2013) 5 S.C.C. 226 (India) 17

K.S. Puttaswamy v. Union of India, (2017) 10 S.C.C. 1 (India) 14, 15

Kartar Singh v. State of Punjab, (1994) 3 S.C.C. 569 (India) 11

Kavalappara Akottarathil Kochuni v. States of Madras & Kerala, A.I.R. 1960 S.C. 13
1080 (India)

Kazi Lhendup Dorji v. C.B.I., 1994 S.C.C. (Cri.) 873 (India) 1

Kharak Singh v. State of Uttar Pradesh, (1964) 1 S.C.R. 332 (India) 14

Kharak Singh v. State of Uttar Pradesh, A.I.R. 1978 S.C. 597 (India) 9

Khyerbari Tea Co. v. State of Assam, A.I.R. 1964 S.C. 925 (India) 2

Kushum Lata v. Union of India, (2006) 6 S.C.C. 180 (India) 1

Laxmi Khandsari v. State of Uttar Pradesh, (1981) 2 S.C.C. 600 (India) 4

Lily Thomas v. Union of India, (2000) 6 S.C.C. 224 (India) 5,9,15

Lok Prahari v. State of Uttar Pradesh, (2016) 9 S.C.C. 739 (India) 1

M Jagdish Vyas v. Union of India, (2010) 4 S.C.C. 150 (India) 4

M.R.F. Ltd. v. Inspector Kerala Gov’t, (1998) 8 S.C.C. 227 (India) 12

M/s Jayaraj v. Comm’r of Excise, A.I.R. 2000 S.C. 3266 (India) 1

Maganbhai Ishwarbhai Patel v. Union of India, A.I.R. 1969 S.C. 783 (India) 2

Manav Adhikar v. Union of India, (2018) 10 S.C.C. 443 (India) 3

Mazdoor Kisan Shakti Sangathan v. Union of India, A.I.R. 2018 S.C. 3476 (India) 13

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MEMORIAL for RESPONDENT [INDEX OF AUTHORITIES]

Modern Dental College & Research Centre v. State of Madhya Pradesh, (2016) 7 13
S.C.C. 353 (India)

Moti Lal v. State of Madhya Pradesh, (2008) 11 S.C.C. 20 (India) 7

Mr. X v. Hospital Z, (1998) 8 S.C.C. 296 (India) 15

N.K. Bajpai v. Union of India, (2012) 4 S.C.C. 653 (India) 12

N.K. Prasada v. Gov’t of India, (2004) 6 S.C.C. 299 (India) 3

Naresh Kumar v. Union of India, (2004) 4 S.C.C. 540 (India) 4

Nat’l Council for Civil Liberties v. Union of India, (2007) 6 S.C.C. 506 (India) 2

Naveen Kohli v. Neelu Kohli, (2006) 4 S.C.C. 558 (India) 12

Navtej Singh Johar v. Union of India, (2018) 10 S.C.C. 1 (India) 11,14

Padala Vera Reddy v. State of Andhra Pradesh, 1991 S.C.C. (Cri.) 407 (India) 8

Papnasam Labour Union v. Madura Coasts, (1995) 1 S.C.C. 501 (India) 12

People’s Union for Democratic Rights v. Union of India, (1982) 3 S.C.C. 235 (India) 2

Pinakin Mahipatray Rawal v. State of Gujarat, (2013) 10 S.C.C. 48 (India) 9

Preeti Gupta v. State of Jharkhand, (2010) 7 S.C.C. 667 (India) 12

Quraishi v. State of Bihar, A.I.R. 1958 S.C. 731 (India) 13

R Rajagopal v. State of Tamil Nadu, (1994) 6 S.C.C. 632 (India) 14

R.K.Garg v. Union of India, (1981) 4 S.C.C. 676 (India) 4

Radhu v. State of Madhya Pradesh, (2007) 12 S.C.C. 57 (India) 6

Rajesh Sharma v. State of Uttar Pradesh, (2018) 10 S.C.C. 472 (India) 3

Rajiv Ranjan Singh v. Union of India, (2006) 6 S.C.C. 613 (India) 1

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MEMORIAL for RESPONDENT [INDEX OF AUTHORITIES]

Rameshbhai Chanubhai Rathod v. State of Gujarat, (2009) 5 S.C.C. 740 (India) 8

Ramlila Maidan Incident v. Home Sec’y, Union of India, (2003) 4 S.C.C. 399 (India) 10

S.P. Gupta v. Union of India, A.I.R. 1982 S.C. 149 (India) 1

Sahara India Real Estate Corp. Ltd. v. S.E.B.I., (2012) 10 S.C.C. 603 (India) 12

Samar Ghosh v. Jaya Ghosh, (2007) 4 S.C.C. 511 (India) 12

Santosh Kumar v. State of Madhya Pradesh, (2006) 10 S.C.C. 595 (India) 7

Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4 S.C.C. 90 (India) 10, 16

Satwant Singh Sawhney v. D. Ramarathnam, (1967) 3 S.C.R. 525 (India) 14

Saurabh Chaudri v. Union of India, (2003) 11 S.C.C. 146 (India) 5

Shafin Jahan v. Asokan K.M, (2018) 16 S.C.C. 408 (India) 16

Shaheb Mahboob v. Deputy Custodian, (1962) 2 S.C.R. 371 (India) 4

Shalini v. Kishor, (2015) 11 S.C.C. 718 (India) 18

Shantabai v. State of Maharashtra, A.I.R. 1958 S.C. 532 (India) 2

Sharda v. Dharampal, (2003) 4 S.C.C. 493 (India) 14

Shekara v. State of Karnataka, (2009) 14 S.C.C. 76 (India) 7

Shivshankar v. State of Karntaka, 2018 S.C.C. OnLine S.C. 3106 (India) 8

Shobha Rani v. Madhukar Reddi, (1988) 1 S.C.C. 105 (India) 17

Shreya Singhal v. Union of India, (2015) 5 S.C.C. 1 (India) 11

Siraj Mohmedkhan Janmohamad Khan v. Hafizunnisa Yasinkhan, (1981) 4 S.C.C. 16

250 (India)

Soc. Action for Manav Adhikar v. Union of India, (2018) 10 S.C.C. 443 (India) 3

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MEMORIAL for RESPONDENT [INDEX OF AUTHORITIES]

State of Bombay v. Balsara, A.I.R. 1951 S.C. 318 (India) 13

State of Haryana v. Jai Singh, (2003) 9 S.C.C. 114 (India) 4

State of Jammu and Kashmir v. Triloki Nath Khosa, (1974) 1 S.C.R. 19 (India) 5

State of Madhya Pradesh v. Munna Choubey, (2005) 2 S.C.C. 710 (India) 7

State of Madras v. V.G. Row, A.I.R. 1952 S.C. 196 (India) 13

State of Punjab v. Balkaran Singh, (2006) 12 S.C.C. 709 (India) 4

State of Punjab v. Ram Lubhaya Bagga, (1998) 4 S.C.C. 117 (India) 3

State of Uttar Pradesh v. Kamla Palace, (2000) 1 S.C.C. 557 (India) 4

State of Uttar Pradesh v. Kaushiliya, A.I.R. 1964 S.C. 416 (India) 12

State of Uttar Pradesh v. Ram Gopal Shukla, 1981 A.I.R.1041 (India) 4

State of Uttaranchal v. Balwant Singh Chaufal, A.I.R. 2010 S.C. 2550 (India) 1

Subhash Kumar v. State of Bihar, (1991) 1 S.C.C. 598 (India) 1

Subramaniam Swamy v. C.B.I., (2014) 8 S.C.C. 62 (India) 4

Subramanian Swamy v. Union of India, (2016) 7 S.C.C. 221 (India) 9, 13

Sujit Biswas v. State of Assam, (2013) 12 S.C.C. 406 (India) 8

Supreme Court Advocates-on-Records Ass’n v. Union of India, (2016) 5 S.C.C. 1 1

(India)

Supreme Court Employees’ Welfare Ass’n v. Union of India, (1989) 4 S.C.C. 187 3
(India)

Suresh Seth v. Indore Mun. Corp., (2005) 13 S.C.C. 287 (India) 3

T.M.A. Pai Found. v. State of Karnataka, (2002) 8 S.C.C. 481 (India) 4

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MEMORIAL for RESPONDENT [INDEX OF AUTHORITIES]

T.V. Vatheeswaran v. State of Tamil Nadu, (1983) 2 S.C.C. 68 (India) 14

Tarakant Singh v. State of Bihar, (2012) 11 S.C.C. 766 (India) 18

Tonasa Bruno v. State of Uttar Pradesh, (2015) 7 S.C.C. 178 (India) 8

Uday v. State of Karnataka, (2004) 4 S.C.C. 46 (India) 8

Union of India v. Deoki Nandan Agarwal, A.I.R. 1992 S.C. 96 (India) 3

Union of India v. S.C. Bagari, A.I.R. 1999 S.C. 1412 (India) 4

Uttar Pradesh Power Corp. Ltd. v. Ayodhya Prasad Mishra, (2008) 10 S.C.C. 139 4
(India)

Vemareddy Kumaraswamy Reddy v. State of Andhra Pradesh, (2006) 2 S.C.C. 670 3

(India)

Vennangot Anuradha Samir v. Vennangot Mohandas Samir, (2015) 16 S.C.C. 596 15

(India)

Vijay Kumar Gupta v. State of Himachal Pradesh, 2015 S.C.C. OnLine H.P. 184 1
(India)

Vijay v. State of Madhya Pradesh, (2010) 8 S.C.C. 191 (India) 7

Wahid Khan v. State of Madhya Pradesh, (2010) 2 S.C.C. 9 (India) 7

Welfare Ass’n v. Ranjit P. Gohil, (2003) 9 S.C.C. 358 (India) 4

Western Uttar Pradesh Electric Power and Supply Corp. Ltd. v. State of Uttar 4
Pradesh, (1969) 1 S.C.C. 817 (India)

HIGH COURT CASES

A v. B, 1984 S.C.C. OnLine Guj. 8 (India) 17

Alok Kumar v. State, 2010 S.C.C. OnLine Del. 2645 (India) 8

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MEMORIAL for RESPONDENT [INDEX OF AUTHORITIES]

Amar Lal Arora v. Shashi Bala, 2011 S.C.C. OnLine Del. 2923 (India) 17

Anil Yashwant Karande v. Mangal Anil Karande, 2015 S.C.C. OnLine Bom. 16
6257 (India)

Bajrang Gangadhar Revdekar v. Pooja Bajrang Revdekar, 2009 S.C.C. OnLine 15

Bom. 1249 (India)

Bhagirathabai v. Bapurao Devrao, 1991 S.C.C. OnLine Bom. 131 (India) 16

Bhagwan Sakharam Said v. State of Maharashtra, 2000 S.C.C. OnLine Bom. 237 17
(India)

Cheriya Varkey v. Ouseph Thresia, 1955 S.C.C. OnLine Ker. 131 (India) 5

D. Sivadasan v. Santha, 2017 S.C.C. OnLine Ker. 9084 (India) 9

Dr. Dwaraka Bal v. Prof. Nainan Mathews, 1953 S.C.C. OnLine Mad. 31 (India) 15

Dr. Himanshu Sharma v. State of J. & K., 2018 S.C.C. OnLine J. & K. 480 9
(India)

Farooq Ahmad Bhat v. State of J.& K., 2018 S.C.C. OnLine J. & K. 609 (India) 9

G.K. Rajagopala Rao v. The State Police Chief, 2016 S.C.C. OnLine Ker. 22487 12
(India)

Guru Prasad Chattopadhyay v. State of West Bengal, 2017 S.C.C. OnLine Cal. 18
16210 (India)

Harvinder Kaur v. Harmander Singh Choudhary, A.I.R. 1984 Del. 66 (India) 12,
15

Husseinkhan Sardarkhan v. Gulab Khatum, 1911 S.C.C. OnLine Bom. 27 (India) 16

Indian Hotel & Restaurants Ass’n v. State of Maharashtra, 2006 S.C.C. OnLine 13
Bom. 418 (India)

Jagannath Muduli v. Nirupama Behera, 2008 S.C.C. OnLine Ori. 29 (India) 15

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MEMORIAL for RESPONDENT [INDEX OF AUTHORITIES]

Krishna v. Union of India, 2010 S.C.C. OnLine Del. 3589 (India) 16

Man Mohan Vaid v. Meena Kumari, 2003 S.C.C. OnLine Del. 496 (India) 17

Mangal Anil Karande v. Annie Varghese, 2008 S.C.C. OnLine. Bom. 461 (India) 16

Meganatha Nayagar v. Smt. Susheela, 1956 S.C.C. OnLine Mad. 320 (India) 12

Miten v. Union of India, 2008 S.C.C. OnLine Bom. 329 (India) 9

Mithailal v. State of Maharashtra, 1993 S.C.C. OnLine Bom. 171 (India) 16

Navdeep Kaur Gill v. State of Punjab, 2011 S.C.C. OnLine P. & H. 3670 (India) 13

Neelkamal Realtors Suburban Pvt. Ltd. v. Union of India, 2017 S.C.C. OnLine 13
Bom. 9302 (India)

Nimeshbhai Bharatbhai Desai v. State of Gujarat, 2018 S.C.C. OnLine Guj. 732 17
(India)

North Delhi Mun. Corp. v. Rajinder Sharma, 2014 S.C.C. OnLine Del. 4937 11
(India)

Om Prakash Poddar v. Rina Kumari, 2013 S.C.C. OnLine Del. 2771 (India) 12

Prasar Bharti Broad. Corp. of India v. Debyajoti Bose, A.I.R. 2000 Cal. 43 1
(India)

Raju Narayana Swamy v. Beena, 2017 S.C.C. OnLine Ker. 195 (India) 18

Rameshwar v. State of Haryana, 1983 S.C.C. OnLine P. & H. 873 (India) 17

Rita Nijhawan v. Balkishan Nijhawan, 1973 S.C.C. OnLine Del. 52 (India) 16

Sanjay Kumar v. State of Himachal Pradesh, 2015 S.C.C. OnLine H.P. 3008 6
(India)

Sardha Ram Lal v. Haji Abdul Majid, 1959 S.C.C. OnLine P. & H. 143 (India) 12

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MEMORIAL for RESPONDENT [INDEX OF AUTHORITIES]

Sarwar Merwan Yezdia v. Merwan Rashid Yezdiar, 1950 S.C.C. OnLine Bom. 5
50 (India)

Shabnam Parveen v. State of West Bengal, 2017 S.C.C. OnLine Cal. 16119 18
(India)

Sharad Balkrushna Deotle v. Krishna Zitruji, 2002 S.C.C. OnLine Bom. 185 2
(India)

Shashank Shekhar Mishra v. Ajay Gupta, 2011 S.C.C. OnLine Del. 3741 (India) 15

State of Bombay v. Narasu Appa Mal, A.I.R. 1952 Bom. 84 (India) 9

State of Rajasthan v. Vijairam, 1967 S.C.C. OnLine Raj. 49 (India) 17

Suresh Nathmal Rathi v. State of Maharashtra, (1991) S.C.C. OnLine Bom. 236 16
(India)

The Ass’n of Traders v. Union of India, 2015 S.C.C. OnLine Bom. 4811 (India) 11

Union of India v. Nisha Priya Bhatia, 2019 S.C.C. OnLine Del. 6473 (India) 11

Vijay Kumar Gupta v. State of Himachal Pradesh, 2015 S.C.C. OnLine H.P. 184 2
(India)

Zuber Ahmed v. Union of India, 2015 S.C.C. OnLine P. & H. 8826 (India) 11

UNITED STATES OF AMERICA CASES

Baggett v. Bullitt, 377 U.S. 360 (1964) 11

Grayned v. City of Rockford, 408 U.S. 104 (1972) 11

Loving v. Virginia, 388 U.S. 1 (1967) 9

Skinner v. Oklahoma, 316 U.S. 535 (1942) 9

Winters v. People of State of New York, 333 U.S. 507 (1948) 11

EUROPEAN UNION CASES

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MEMORIAL for RESPONDENT [INDEX OF AUTHORITIES]

G. v. Germany, [1984] E.H.R.R. 6 11

Gay News v. United Kingdom, [1983] E.H.R.R. 5 11

Hashman v. United Kingdom, [1999] E.C.H.R. 13 11

Steel v. United Kingdom, [1998] E.C.H.R. 95 11

Sunday Times v. United Kingdom, [1979] E.H.R.R. 2 11

CANADA CASES

Jean-Paul Labaye v. The Queen, 2005 S.C.C. OnLine Can. 80 (Can.) 11

John O. Miron v. Richard Trudel, 1995 S.C.C. OnLine Can. S.C. 45 (Can.) 12

NEW ZEALAND CASES

Allistair Patrick Brooker v. The Police, [2007] 3 N.Z.L.R. 91 (SC) (N.Z.) 11

BOOKS

1 ARVIND P. DATAR, COMMENTARY ON THE CONSTITUTION OF INDIA 542 (2nd ed. 2

2007)

1 C.K. PARIKH, FORENSIC MEDICINE & TOXICOLOGY 433 (6th ed. 1980) 7

1 DR. SUBHASH C. KASHYAP, CONSTITUTION LAW OF INDIA 467 (2008) 5

1 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 689 (8th ed. 1
2007)

1 JUSTICE SUJATA MANOHAR, CONSTITUTIONAL LAW OF INDIA 75 (3rd ed. 2010) 5

2 P. RAMANATHA AIYAR, THE MAJOR LAW LEXICON 366 (4th ed. 2001) 16

2 SUDIPTO SARKAR & V.R. MANOHAR, LAW OF EVIDENCE 2224 (17th ed. 2010) 8

3 DR. V. KESAVA RAO, LAW OF EVIDENCE 5134 (18th ed. 2008) 8

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MEMORIAL for RESPONDENT [INDEX OF AUTHORITIES]

3 R.A.NELSON, INDIAN PENAL CODE 3846 (10th ed. 2008) 17

BRYAN A. GARNER, BLACK’S LAW DICTIONARY 343 (10th ed. 2014) 16

ELIZABETH A. MARTIN, OXFORD DICTIONARY OF LAW 105 (5th ed. 2002) 16

M.P. JAIN, INDIAN CONSTITUTIONAL LAW 1430 (8th ed. 2008) 2

MODI, MEDICAL JURISPRUDENCE AND TOXICOLOGY 495 (22nd ed. 2010) 7

P.S.A. PILLAI, CRIMINAL LAW 895 (12th ed. 2014) 17

PROF. IAN DENNIS, THE LAW OF EVIDENCE 437, 487 (3rd ed. 2007) 7

RATANLAL & DHIRAJLAL, THE LAW OF EVIDENCE 1424 (23rd ed. 2010) 8

CONSTITUTIONAL PROVISIONS & STATUTES

INDIA CONST. art 14 4

INDIA CONST. art 19 9, 10

INDIA CONST. art 21 14

INDIA CONST. art 32 1

The Indian Penal Code 1860, No. 45 of 1860, § 354 17

The Indian Penal Code 1860, No. 45 of 1860, § 375 5, 6

The Indian Penal Code 1860, No. 45 of 1860, § 377 17

The Indian Penal Code 1860, No. 45 of 1860, § 498A 6

The Protection of Woman from Domestic Violence Act, 2005, No. 43 of 2005, 18
Acts of Parliament, 2005, § 3

INTERNATIONAL TREATIES AND CONVENTIONS

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MEMORIAL for RESPONDENT [INDEX OF AUTHORITIES]

G.A. Res. 217 (III) A, Universal Declaration of Human Rights, art. 25, (Dec. 10, 15
1948)

International Covenant on Civil and Political Rights art. 23, Dec. 16, 1966, 999 15
U.N.T.S. 177

JOURNALS AND ARTICLES

Barnard A. Raum, Rape Trauma Syndrome as Circumstantial Evidence of Rape, 8

11 J. PSYTR’Y & LAW. 203, 213 (1983)

Devarshi Mukhopadhya & Rahul Bajaj, Locating the 'Right to be Forgotten' in 13

Indian Constitutional Jurisprudence: a Functional-Dialogical Analysis, 3 COMP.
CONST. L. & ADMN. L. QTLY 52, 65 (2017)

Flavia Agnes, Conjugality, Property, Morality and Maintenance, 44 ECON. & 10

POL. WKLY. 58, 60 (2009)

John N. Edwards, Sexual Behavior in and out of Marriage: An Assessment of 15

Correlates, 38 J. MARR. & FAM., 73, 76 (1976)

Richard H. Dana, Equality in Sexual Behavior: Impact on Man-Woman 12

Relationships, 15 J. THO’T 9, 18 (1980)

Sharron Hinchliff, Intimacy, Commitment & Adaptation: Sexual relationships 15

within long-term marriages, 21 U. SHEFFEILD 596, 600 (2004)

Surendra Chaher, Outraging the Modesty of a Woman: Inter-Spousal 17

Perspective, 32 J. INDIA L. INST. 527, 535 (1990)

ONLINE SOURCES

Abhik Dash Mohapatra, Indirect evidence enough to prove rape, THE 8

TELEGRAPH, (Mar. 23, 2018),
https://www.telegraphindia.com/states/odisha/indirect-evidence-enough-to-
prove-rape/cid/1410831

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MEMORIAL for RESPONDENT [INDEX OF AUTHORITIES]

Law Commission of India Report No. 215, L. Chandra Kumar be revisited by 5

Larger Bench of Supreme Court, (March 13, 2019, 03:43 AM),
http://lawcommissionofindia.nic.in/reports/report215.pdf

Law Commission of India Report No. 172, The Indian Penal Code, (March 13, 6
2019, 03:43 AM), http://lawcommissionofindia.nic.in/1-50/Report42.pdf.

Ministry of Home Affairs, Gov’t of India, National Crime Records Bureau 6

(2015-16), (March 13, 2019, 04:45 AM),
http://ncrb.gov.in/StatPubglications/CII/CII2015/FILES/CrimeInIndia2015.pdf

Submission to I.C.J. Panel of Eminent Jurists on Terrorism, Counter-Terrorism 11

and Human Rights, (Mar. 14, 2019, 6: 43 PM),
https://www.article19.org/data/files/pdfs/analysis/terrorism-submission-to-icj-
panel.pdf

Toby Mendel, Restricting Freedom of Expression: Standards and Principles, 12

CENT. FOR L. & DEMOCRACY, (Mar. 14, 2019, 6:44 PM), http://www.law-
democracy.org/wp-content/uploads/2010/07/10.03.Paper-on-Restrictions-on-
FOE.pdf

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MEMORIAL for RESPONDENT [STATEMENT OF JURISDICTION]

STATEMENT OF JURISDICTION

The PETITIONER have invoked, in the dispute relating to the Constitutional validity of Exception
II to § 375 of The Indian Penal Code, 1860, the jurisdiction of the Hon’ble Supreme Court of
India under Article 32 of the Indian Constitution.

Thereby, the RESPONDENT humbly challenges the jurisdiction of the Hon’ble Supreme Court
of India and thereby submits this memorial which sets forth the facts and the laws on which the
claims are based.

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MEMORIAL for RESPONDENT [STATEMENT OF FACTS]

STATEMENT OF FACTS

BACKGROUND

Nidhi and Subodh, aged 22 and 24 respectively, are two working professionals who have been
live-in partners since 2017. They got married in December 2018, according to Hindu customs.

After their marriage, Nidhi claimed that their relationship was not the same, her husband
demanding intercourse from her. It was opined by her mother and in-laws that an Indian couple
should fulfil their marital obligations after the solemnization of marriage and that husband and
wife were constant companions to each other at all the times.

THE DEBATE ON EXCEPTION II TO § 375 OF THE INDIAN PENAL

Nidhi saw a debate show on the topic of Exception II to § 375 of the Indian Penal Code, 1860.
Those in favour of the Exception contended that it had been inserted to preserve the institution
and sanctity of marriage and criminalization of sexual intercourse between spouses had
potential to wreak havoc on the society. Also, that the Indian law delivers proper protection to
women’s rights, the existing law is sufficient and well aware of the situation and demands of
the Indian society. Those against Exception II argued that it attached an archaic notion of
women being a property and it also violated human rights and various rights of women under
Part III of the constitution.

ARTICLE 32 OF THE INDIAN CONSTITUTION INVOKED

Society for Women’s Rights is an NGO that works for the welfare of women. It is an
organization that has previously helped to bring in women-centric laws by rallying for
enactment of women rights via legislations and judicial intervention. Influenced by the debate,
Nidhi approached Society for Women’s Rights, a non-governmental organization [hereinafter
NGO] and narrated her side to their activists. The members of the NGO decided to approach
the court challenging the constitutional validity of Exception II to § 375 of the Indian Penal
Code, 1860.

A Public Interest Litigation [hereinafter 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 constitutional validity of
Exception II to § 375 of the Indian Penal Code, 1860.

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MEMORIAL for RESPONDENT [ISSUES RAISED]

ISSUES RAISED

ISSUE I

WHETHER THE PRESENT WRIT PETITION IS MAINTAINABLE BEFORE THE HON’BLE SUPREME
COURT OF INDIA

ISSUE II

WHETHER EXCEPTION II TO § 375 OF THE INDIAN PENAL CODE, 1860 VIOLATES ARTICLE 14 OF
THE INDIAN CONSTITUTION

ISSUE III

WHETHER EXCEPTION II TO § 375 OF THE INDIAN PENAL CODE, 1860 VIOLATES ARTICLE 19 OF
THE INDIAN CONSTITUTION

ISSUE IV

WHETHER EXCEPTION II TO § 375 OF THE INDIAN PENAL CODE, 1860 VIOLATES ARTICLE 21 OF
THE INDIAN CONSTITUTION

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MEMORIAL for RESPONDENT [SUMMARY OF ARGUMENTS]

SUMMARY OF ARGUMENTS

ISSUE I: THE WRIT PETITION IS NOT MAINTAINABLE BEFORE THE HON’BLE

SUPREME COURT OF INDIA

The writ petition filed as Public Interest Litigation [hereinafter PIL] by the Petitioner under
Art. 32 is not maintainable before the Supreme Court because first, Society for Women’s
Rights, does not have a locus standi as Exception II is not violative of the fundamental rights
of married woman. Moreover, the petition is not in public interest as it does not seek to advance
any public right. Secondly, striking down the Exception would amount to Judicial Legislation
which is inconsistent with the principles of the constitution.

ISSUE II: EXCEPTION II VIOLATES ARTICLE 14 OF THE INDIAN CONSTITUTION

Exception II does not violate Article 14 of the Indian constitution because first, Exception II
makes a reasonable classification based on marital status which is found on intelligible
differentia. Secondly, the differentia has reasonable nexus with its object of preserving the
sanctity of institution of marriage by ruling out the possibility of false, fabricated and motivated
complaints of rape within marriage. Moreover, Exception II rules out the possibility of practical
and technical difficulties that would arise in a proceeding wherein a husband is charged for
raping his wife.

ISSUE III: EXCEPTION II VIOLATES ARTICLE 19 OF THE INDIAN CONSTITUTION

Exception II does not violate Art. 19 of the Constitution because first, the Exception II does
not violate the freedom of speech and expression under Art. 19(1)(a) because married
individuals consent to the conjugal rights and other various legal obligations that are given at
the time when the individuals enter into the sacred sphere of marriage.

In arguendo, Exception II imposes a reasonable restriction on the freedom of expression

because the restriction is prescribed by law and is not vague. Moreover, the restriction is
imposed in public interest and is proportionate to the legislative aim of protecting the institution
of marriage.

ISSUE IV: EXCEPTION II VIOLATES ARTICLE 21 OF THE INDIAN CONSTITUTION

Exception II does not violate Article 21 of the Indian constitution because, first, Exception II
protects the right to privacy of the married couple by protecting the sanctity of institution of
marriage and providing a free space to exercise their conjugal rights.

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MEMORIAL for RESPONDENT [SUMMARY OF ARGUMENTS]

Secondly, in instances where one of the partners in the matrimonial bond misuses this
protection and commits a sexual offence, there are adequate legal provisions provided by the
Indian legislature, in the Indian Penal Code,1860 [hereinafter IPC] and Protection of Woman
from Domestic Violence Act, 2005 [hereinafter PWDVA] under which the aggrieved can seek
remedy.

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MEMORIAL for RESPONDENT [ARGUMENTS ADVANCED]

ARGUMENTS ADVANCED

I. THE PRESENT WRIT PETITION IS NOT MAINTAINABLE BEFORE THE

HON’BLE SUPREME COURT OF INDIA

[¶1.] A petition under Art. 321 is not maintainable if the petitioner does not have any locus
standi.2 It is submitted that the present petition filed as Public Interest Litigation [hereinafter
PIL] by Society for Woman’s Right [hereinafter SWR] is not maintainable under Art. 32
because first, the petitioner does not have locus standi [A]; and secondly, striking down
Exception II would amount to judicial legislation [B].

A. THE PETITIONER DOES NOT HAVE LOCUS STANDI

[¶2.] A petitioner, whose fundamental right has been violated or threatened to be violated
has a locus standi under Art. 32.3 A person acting bona fide4 and having sufficient interest5 in
the proceedings of the PIL will alone have locus standi6 and can approach the court under Art.
32.7 Further, a PIL cannot be used for personal gains8 or private profits or political motives or
any oblique consideration.9

1
INDIA CONST. art 32.

2
Prasar Bharti Broad. Corp. of India v. Debyajoti Bose, A.I.R. 2000 Cal. 43 (India); Supreme Court Advocates-
on-Records Ass’n v. Union of India, (2016) 5 S.C.C. 1 (India); Fertilizer Corp. Kamgar v. Union of India, (1981)
1 S.C.C. 568 (India).
3
Calcutta Gas Co. Ltd. v. State of West Bengal, A.I.R. 1962 S.C. 1044 (India); Federation of Bar Ass’n in
Karnataka v. Union of India, (2000) 6 S.C.C. 715 (India); Lok Prahari v. State of Uttar Pradesh, (2016) 9 S.C.C.
739 (India).

4
Bandhua Mukti Morcha v. Union of India, (1984) 3 S.C.C. 161 (India); Subhash Kumar v. State of Bihar, (1991)
1 S.C.C. 598 (India).

5
Janata Dal v. H.S. Chowdhary, (1992) 4 S.C.C. 305 (India) [hereinafter Janta Dal]; Kazi Lhendup Dorji v.
C.B.I., 1994 S.C.C. (Cri.) 873 (India).

6
Rajiv Ranjan Singh v. Union of India, (2006) 6 S.C.C. 613 (India); Dattaraj Nathuji Thaware v. State of
Maharashtra, (2004) 3 S.C.C. 349 (India).

7
D.B. Singh v. Union of India, (2004) 3 S.C.C. 363 (India); M/s Jayaraj v. Comm’r of Excise, A.I.R. 2000 S.C.
3266 (India).
8
S.P. Gupta v. Union of India, A.I.R. 1982 S.C. 149 (India); Kushum Lata v. Union of India, (2006) 6 S.C.C. 180
(India); see also 1 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 689 (8th ed. 2007).

9
State of Uttaranchal v. Balwant Singh Chaufal, A.I.R. 2010 S.C. 2550 (India); Vijay Kumar Gupta v. State of
Himachal Pradesh, 2015 S.C.C. OnLine H.P. 184 (India); Janta Dal, supra note 5.

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MEMORIAL for RESPONDENT [ARGUMENTS ADVANCED]

[¶3.] It is submitted that the petitioner does not have locus standi because first, there is no
violation of fundamental rights [i]; and secondly, the petition is not in public interest [ii]

i. There is no violation of fundamental rights

[¶4.] For the maintainability of a writ petition as public interest litigation under
Art.32,10direct infringement11 of fundamental rights of the petitioner must be established.12

[¶5.] The respondent contends that Exception II does not infringe upon the fundamental
rights of married women because first, Exception II does not violate Art. 14 since it makes a
reasonable classification on the basis of marital status which has a reasonable nexus with the
object of preserving the sanctity of marriage. Secondly, Exception II does not violate Art. 19
because a married individual enters into the bond of marriage with their free consent while
being aware of the legal rights and obligations arising from the sacred institution of marriage.

[¶6.] Lastly, Exception II does not violate Art. 21 because it ensures that the right of the
individual to solemnization of the marriage is effectuated by preventing the state interference
of state when an individual enforces his or her conjugal right. Hence, it is submitted that
Exception II does not violate the fundamental rights of married women.

ii. The petition is not in public interest

[¶7.] A PIL should not be ‘publicity interest litigation’13 and there must be genuine public
interest14 involved in the litigation. The jurisdiction of the Hon’ble Supreme Courts cannot be
invoked by a person or a body of persons to further their personal causes.15

Nat’l Council for Civil Liberties v. Union of India, (2007) 6 S.C.C. 506 (India); Andhra Indus. Works v. Chief
10

Controller of Imports, (1974) 2 S.C.C. 348 (India); see also 1 ARVIND P. DATAR, COMMENTARY ON THE
CONSTITUTION OF INDIA 542 (2nd ed. 2007).

11
Maganbhai Ishwarbhai Patel v. Union of India, A.I.R. 1969 S.C. 783 (India); Hindi Hitrashak Samiti v. Union
of India, A.I.R. 1990 S.C. 851 (India); Shantabai v. State of Maharashtra, A.I.R. 1958 S.C. 532 (India).

12
Bhushan Power & Steel Ltd. v. Rajesh Verma, (2014) 5 S.C.C. 551 (India); Khyerbari Tea Co. v. State of
Assam, A.I.R. 1964 S.C. 925 (India), see also 1 H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA 455 (4th ed.
2010).

13
Ashok Kumar Pandey v. State of West Bengal, (2004) 3 S.C.C. 349 (India); B.P. Singhal v. Union of India,
(2010) 6 S.C.C. 331 (India); Common Cause v. Union of India, (2014) 6 S.C.C. 552 (India); see also M.P. JAIN,
INDIAN CONSTITUTIONAL LAW 1430 (8th ed. 2008).
14
Bodhisattwa Gautam v. Subhra Chakraborty, A.I.R. 1996 S.C. 722 (India); Sharad Balkrushna Deotle v. Krishna
Zitruji, 2002 S.C.C. Online Bom. 185 (India).

15
People’s Union for Democratic Rights v. Union of India, (1982) 3 S.C.C. 235 (India), Vijay Kumar Gupta v.
State of Himachal Pradesh, 2015 S.C.C. Online H.P. 184 (India).

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MEMORIAL for RESPONDENT [ARGUMENTS ADVANCED]

[¶8.] The respondents submit that in the present case, the Petitioner SWR does not seek to
advance any public right, rather, invocation of the jurisdiction of the Supreme Court as public
interest litigation is made by them in an attempt to garner public attention. Hence, the present
petitions fail to meet the requirement of the public at large and consequently, the petition is not
in public interest.

B. STRIKING DOWN EXCEPTION II WOULD AMOUNT TO JUDICIAL LEGISLATION

[¶9.] The Hon’ble Supreme Court in Social Action for Manav Adhikar v. Union of India16
held that it is not the duty of the courts to issue directions in policy matters. 17 It is for the
legislature and the executive to decide on matters of public policy.18 The courts neither create
offences nor do they introduce or legislate punishment.19

[¶10.] The respondent contends that Exception II is unambiguous and moreover the legislature
had settled the law by recent amendments made to rape laws. The court would be creating and
legislating a new offence by striking down Exception II, which is out of its purview and is the
primary task in the hands of the legislature.

[¶11.] Hence, it is submitted that striking down of Exception II would amount to judicial
legislation, which would be violation of doctrine of separation of powers and consequently,
will be inconsistent with the principle of constitutional democracy.

[¶12.] In conclusion, the respondent humbly submit that the petition is not maintainable before
the Hon’ble Supreme Court of India.

II. EXCEPTION II TO § 375 OF THE INDIAN PENAL CODE DOES NOT

VIOLATE ARTICLE 14 OF THE INDIAN CONSTITUTION

[¶13.] Article 1420 forbids class legislation but does not forbid reasonable classification for

16
Manav Adhikar v. Union of India, (2018) 10 S.C.C. 443 (India).

17
See Suresh Seth v. Indore Mun. Corp., (2005) 13 S.C.C. 287 (India); Supreme Court Employees’ Welfare Ass’n
v. Union of India, (1989) 4 S.C.C. 187 (India); Bal Ram Bali v. Union of India, (2007) 6 S.C.C. 805 (India).

18
Census Comm’r v. R. Krishnamurthy, (2015) 2 S.C.C. 796 (India); State of Punjab v. Ram Lubhaya Bagga,
(1998) 4 S.C.C. 117 (India); Vemareddy Kumaraswamy Reddy v. State of Andhra Pradesh, (2006) 2 S.C.C. 670
(India); N.K. Prasada v. Gov’t of India, (2004) 6 S.C.C. 299 (India).
19
Soc. Action for Manav Adhikar v. Union of India, (2018) 10 S.C.C. 443 (India); Rajesh Sharma v. State of
Uttar Pradesh, (2018) 10 S.C.C. 472 (India); Union of India v. Deoki Nandan Agarwal, A.I.R. 1992 S.C. 96
(India); G. Krishta Goud & Bhoomaiah v. State of Andhra Pradesh, (1976) 1 S.C.C. 157 (India).

20
INDIA CONST. art 14.

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MEMORIAL for RESPONDENT [ARGUMENTS ADVANCED]

the purpose of legislation.21In order to pass the test of reasonableness, the classification must
be based on intelligible differentia22 and the differentia must have a reasonable nexus with the
object sought to be achieved.23

[¶14.] It is submitted that Exception II is not violative of Art.14 because first, Exception II
makes a classification based on intelligible differentia [A]; and secondly, the differentia has a
reasonable nexus with the object [B].

A. EXCEPTION II MAKES A CLASSIFICATION BASED ON INTELLIGIBLE DIFFERENTIA

[¶15.] The intelligible differentia i.e. the basis of classification24 must be rational25 and based
on some qualities or characteristics26 which are to be found in all the persons grouped together
and not in others who are left out.27

[¶16.] The respondent contends that first Exception II by keeping sexual activities within the
sacred bond of marriage outside the ambit of rape, classifies people based on their marital
status. Consequently, a husband, unlike an unmarried man cannot be punished for committing
rape under §375 if he has non-consensual sexual intercourse with his wife within the bond of
marriage.

[¶17.] Secondly, a classification made between people on the basis of their marital status is
not arbitrary or discriminatory,28 because unlike unmarried people, married people upon

21
Laxmi Khandsari v. State of Uttar Pradesh, (1981) 2 S.C.C. 600 (India); State of Haryana v. Jai Singh, (2003)
9 S.C.C. 114 (India); Welfare Ass’n v. Ranjit P. Gohil, (2003) 9 S.C.C. 358 (India); Ashutosh Gupta v. State of
Rajasthan, (2002) 4 S.C.C. 34 (India); State of Uttar Pradesh v. Kamla Palace, (2000) 1 S.C.C. 557 (India);
Subramaniam Swamy v. C.B.I., (2014) 8 S.C.C. 62 (India).

22
Naresh Kumar v. Union of India, (2004) 4 S.C.C. 540 (India); State of Uttar Pradesh v. Ram Gopal Shukla,
1981 A.I.R. 1041 (India); Dhirendra Pandua v. State of Orissa, (2008) 17 S.C.C. 311 (India).

23
Budhan v. State of Bihar, A.I.R. 1955 S.C. 191 (India); Harakchband v. Union of India, A.I.R. 1970 S.C. 479
(India); Union of India v. S.C. Bagari, A.I.R. 1999 S.C. 1412 (India).
24
Uttar Pradesh Power Corp. Ltd. v. Ayodhya Prasad Mishra, (2008) 10 S.C.C. 139 (India); T.M.A. Pai Found.
v. State of Karnataka, (2002) 8 S.C.C. 481 (India).

25
John Vallamattom v. Union of India, (2003) 6 S.C.C. 611 (India); Jagannath Prasad v. State of Uttar Pradesh,
(1962) 1 S.C.R. 151 (India); Shaheb Mahboob v. Deputy Custodian, (1962) 2 S.C.R. 371 (India).

26
Gauri Shankar v. Union of India, (1994) 6 S.C.C. 349 (India); M Jagdish Vyas v. Union of India, (2010) 4
S.C.C. 150 (India); State of Punjab v. Balkaran Singh, (2006) 12 S.C.C. 709 (India).
27
Western Uttar Pradesh Electric Power and Supply Corp. Ltd. v. State of Uttar Pradesh, (1969) 1 S.C.C. 817
(India); R.K.Garg v. Union of India, (1981) 4 S.C.C. 676 (India).

28
Indra Sarma v. V.K.V. Sarma, (2013) 15 S.C.C. 755 (India).

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MEMORIAL for RESPONDENT [ARGUMENTS ADVANCED]

solemnization of their marriage have to discharge various legal rights and obligations that flow
out of the legally wedded marriage.29

[¶18.] Lastly, the differentia in the aforesaid classification is the marital status, which is an
uncommon characteristic to the people in the two groups and no single person can fall in both
the groups at the same time, a person above the legal age of marriage, is either married or is
unmarried.

[¶19.] Hence, it is submitted that Exception II which makes a classification on the basis of
marital status is found on intelligible differentia.

B. THE DIFFERENTIA HAS A REASONABLE NEXUS WITH THE OBJECT

[¶20.] A classification is reasonable when the differentia,30 i.e. the basis of classification is
logically31 related to the object of the law32. The reasonable nexus between the differentia and
the object of law should be determined in the light of the purpose for special treatment meted
out to the differentiated group.33

[¶21.] The respondent contends that Exception II provides special treatment to the married
individuals by keeping sexual activities within marriage outside the purview of rape.34The
object sought to be achieved by the aforementioned classification is protecting the sanctity of
institution of marriage35 by ruling out the possibility of false, fabricated and motivated
complaints of ‘rape’ by ‘wife’ against her ‘husband’ and the practical procedural difficulties

29
Lily Thomas v. Union of India, (2000) 6 S.C.C. 224 (India) [hereinafter Lily Thomas]; Cheriya Varkey v.
Ouseph Thresia, 1955 S.C.C. OnLine Ker. 131 (India); Sarwar Merwan Yezdia v. Merwan Rashid Yezdiar, 1950
S.C.C. OnLine Bom. 50 (India).

30
Budhan v. State of Bihar, (1955) 1 S.C.R. 1045 (India).
31
Ganga Ram v. Union of India, (1970) 1 S.C.C. 377 (India); Jalan Trading Co. v. Mill Mazdoor Sabha, (1967)
1 S.C.R. 15 (India); State of Jammu and Kashmir v. Triloki Nath Khosa, (1974) 1 S.C.R. 19 (India).

32
1 DR. SUBHASH C. KASHYAP, CONSTITUTION LAW OF INDIA 467 (2008); Saurabh Chaudri v. Union of India,
(2003) 11 S.C.C. 146 (India).

33
1 JUSTICE SUJATA MANOHAR, CONSTITUTIONAL LAW OF INDIA 75 (3rd ed. 2010); Naresh Kumar v. Union of
India, (2004) 4 S.C.C. 540 (India).
34
The Indian Penal Code 1860, No. 45 of 1860, § 375.

35
Law Commission of India Report No. 172, Review of Rape Laws, (March 13, 2019, 03:43 AM),
http://www.lawcommissionofindia.nic.in/rapelaws.htm.

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MEMORIAL for RESPONDENT [ARGUMENTS ADVANCED]

that may arise in a such a legal proceeding.36

[¶22.] It is submitted that the differentia has a reasonable nexus with the object of preserving
the sanctity of marriage because first, Exception II rules out the possibility of false rape
complaints within marriage [i]; and secondly, Exception II rules out the practical and technical
difficulties that would arise in such legal proceedings [ii].

i. Exception II rules out the possibility of false rape complaints within

marriage

[¶23.] False charges of rape are not uncommon.37 Harassment and arrest on account of false
charges of rape brings humiliation, curtails freedom and casts scars forever on the husband and
relatives of the accused.38

[¶24.] The respondent submits that first the Crime in India Statistics published by National
Crime Records Bureau [hereinafter NCRB] for the year 2016-17, showed that out of a total of
55071 complaints for rape under § 375,39 4112 complaints were found false and out of 18,552
men arrested for rape, 13,813 men were acquitted and only 4739 men were convicted.40
Further, out of a total of 1,98,851 men arrested for offence under S. 498A41 for cruelty, 82,075
men were acquitted and only 2,198 were convicted.42

[¶25.] Secondly, Exception II provides protection against false and fabricated rape cases that
may be used as a tool for oppression by a vindictive wife and removal of the protection would
unleash a new legal terrorism where the mere accusation and the statement of the prosecutrix-
wife would be equivalent to evidence and henceforth, sufficient for conviction of the husband.

[¶26.] Hence, it is submitted that Exception II aims to preserve the family as an institution by

36
Law Commission of India Report No. 172, The Indian Penal Code, (March 13, 2019, 03:43 AM),
http://lawcommissionofindia.nic.in/1-50/Report42.pdf.

37
Radhu v. State of Madhya Pradesh, (2007) 12 S.C.C. 57 (India); Sanjay Kumar v. State of Himachal Pradesh,
2015 S.C.C. OnLine H.P. 3008 (India).

38
Arnesh Kumar v. State of Bihar, (2014) 8 S.C.C. 469 (India).

39
The Indian Penal Code 1860, No. 45 of 1860, § 375.

Ministry of Home Affairs, Gov’t of India, National Crime Records Bureau (2015-16), (March 13, 2019, 04:45
40

AM), http://ncrb.gov.in/StatPubglications/CII/CII2015/FILES/CrimeInIndia2015.pdf [hereinafter NCRB].

41
The Indian Penal Code 1860, No. 45 of 1860, § 498A.

42
NCRB, supra note 38.

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MEMORIAL for RESPONDENT [ARGUMENTS ADVANCED]

ruling out the possibility of false, fabricated and motivated complaints of rape by wife against
her husband for sexual activities within marriage.

ii. Exception II rules out the practical and technical difficulties that would
arise in such legal proceedings

[¶27.] It is submitted that the classification made by Exception II rules out the practical and
technical difficulties that may arise in a legal proceeding wherein a husband is charged for rape
for sexual activities within marriage because first, it would be nearly impossible on the part of
the husband to prove his innocence [a]; and secondly, circumstantial evidences would not
prove the alleged act of rape within marriage beyond reasonable doubt [b].

a. Near Impossibility on the part of the husband to prove his innocence

[¶28.] In cases of rape, even a slightest degree of penetration is sine qua non43 to constitute
the offence of rape.44The actus reus stand established when there is evidence of penetration in
the medical reports.45 Further, in absence of any corroborating evidence of the victim, the
statement of prosecutrix can be solely relied for conviction of the accused.46

[¶29.] First, it is submitted that in case of a marriage, cohabitation is not uncommon and a
couple may have consensually cohabitated in various occasions, which makes penetration most
probable to appear during medical examinations. Consequently, the medical report in most of
the cases where the wife would allege rape would show that there was penetration,
notwithstanding the fact that the act was consensual or not.

[¶30.] Secondly, the conviction of the husband would in absence of corroborative evidences
would depend upon the sole statement of the wife. Consequently, the aforesaid statement, even
if it were made with ulterior motive or some vindictive motive by the wife, it would be
sufficient to convict the husband for rape.

[¶31.] Hence, it is submitted that it would be nearly impossible for the husband to prove his

43
Shekara v. State of Karnataka, (2009) 14 S.C.C. 76 (India); Arjun Singh v. State of Himachal Pradesh, (2009)
4 S.C.C. 18 (India); MODI, MEDICAL JURISPRUDENCE AND TOXICOLOGY 495 (22nd ed. 2010).

44
Wahid Khan v. State of Madhya Pradesh, (2010) 2 S.C.C. 9 (India); Dinesh v. State of Rajasthan, (2006) 3
S.C.C. 771 (India); 1 C.K. PARIKH, FORENSIC MEDICINE & TOXICOLOGY 433 (6th ed. 1980).
45
Santosh Kumar v. State of Madhya Pradesh, (2006) 10 S.C.C. 595 (India); State of Madhya Pradesh v. Munna
Choubey, (2005) 2 S.C.C. 710 (India); PROF. IAN DENNIS, THE LAW OF EVIDENCE 437, 487 (3rd ed. 2007).

46
Vijay v. State of Madhya Pradesh, (2010) 8 S.C.C. 191 (India); Moti Lal v. State of Madhya Pradesh, (2008)
11 S.C.C. 20 (India).

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MEMORIAL for RESPONDENT [ARGUMENTS ADVANCED]

innocence in case he is accused for rape for sexual activities within marriage.

b. Circumstantial Evidence would not prove the alleged act of rape within
marriage beyond reasonable doubt

[¶32.] Criminal justice system for the conviction of an individual for an offence requires
certainty of truth.47 Conviction in cases of rape is found on circumstantial evidences.48
Circumstantial evidences are evidences based on inference49 and not on personal knowledge or
observation.50 The very nature of things in most cases of rape is such that the only evidence
available is circumstantial evidence.51 The circumstantial evidence in order to sustain the
conviction must draw an inference of guilt and must be cogently and firmly established.52

[¶33.] In cases of live-in-relationships where the couple lives as husband and wife, this court
has expressed difficulty53 in finding out the real truth as to what had happened within the four
corners.54 especially when the couple was living together.55

[¶34.] The respondent submits that in case the husband is tried for non-consensual sexual
intercourse with his wife under § 375, then it would be very difficult for the husband to testify
and ascertain the real truth that happened in the sanctity of private sphere between the husband
and the wife, solely on the basis of circumstantial evidences.

47
Dayabhai Chhaganbhai Thakker v. State of Gujarat, (1964) 7 S.C.R. 361 (India); Sujit Biswas v. State of Assam,
(2013) 12 S.C.C. 406 (India); Inder Singh v. State (Delhi Administration), (1978) 4 S.C.C. 161 (India); 2 SUDIPTO
SARKAR & V.R. MANOHAR, LAW OF EVIDENCE 2224 (17th ed. 2010).

48
RATANLAL & DHIRAJLAL, THE LAW OF EVIDENCE 1424 (23rd ed. 2010); see also Abhik Dash Mohapatra,
Indirect evidence enough to prove rape, THE TELEGRAPH, Mar. 23, 2018,
https://www.telegraphindia.com/states/odisha/indirect-evidence-enough-to-prove-rape/cid/1410831.

49
Barnard A. Raum, Rape Trauma Syndrome as Circumstantial Evidence of Rape, 11 J. PSYTR’Y & LAW. 203,
213 (1983).
50
Padala Vera Reddy v. State of Andhra Pradesh, 1991 S.C.C. (Cri.) 407 (India); Tonasa Bruno v. State of Uttar
Pradesh, (2015) 7 S.C.C. 178 (India).

51
Rameshbhai Chanubhai Rathod v. State of Gujarat, (2009) 5 S.C.C. 740 (India); Duryodhan Rout v. State of
Odisha, (2015) 2 S.C.C. 783 (India); Chandmal v. State of Rajasthan, (1976) 1 S.C.C. 621 (India); see also 3 DR.
V. KESAVA RAO, LAW OF EVIDENCE 5134 (18th ed. 2008).

52
Jaharlal Das v. State of Orissa, (1991) 3 S.C.C. 27 (India).
53
Shivshankar v. State of Karntaka, 2018 S.C.C. OnLine S.C. 3106 (India).

54
Alok Kumar v. State, 2010 S.C.C. OnLine Del. 2645 (India).

55
Uday v. State of Karnataka, (2004) 4 S.C.C. 46 (India).

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MEMORIAL for RESPONDENT [ARGUMENTS ADVANCED]

[¶35.] Hence, it is submitted that consummation of marriage between a couple who had
previously been intimate, would be almost impossible to criminalize and nearly impossible for
the husband to prove his innocence on the basis of circumstantial evidences.

In conclusion, the respondent most humbly submits before this hon’ble court that Exception II
to S. 375 of IPC does not violate Art. 14 of the Indian Constitution.

III. EXCEPTION II TO § 375 OF THE INDIAN PENAL CODE DOES NOT

VIOLATE ARTICLE 19 OF THE INDIAN CONSTITUTION

[¶36.] Art. 1956 guarantees some of the basic, valued and natural rights inherent in the
person.57 In all matters specified in Art. 19(1), the citizen has the right to liberty, subject to
restrictions in Art. 19(2) to (6).58 It is submitted that Exception II to §375 does not violate Art.
19 because first, Exception II does not violate the freedom of speech and expression of a
married woman. [A]. In arguendo, Exception II imposes a reasonable restriction [B].

A. EXCEPTION II DOES NOT VIOLATE THE FREEDOM OF SPEECH AND EXPRESSION OF

A MARRIED WOMAN

[¶37.] Marriage is a sacred social institution59 and a married couple has to discharge rights
and obligations60 that flow out of it by operation of law on the solemnization of marriage. 61
Moreover, marital relationship means the legally protected marital interest of one spouse to
another,62 which includes sexual relation63 and the exclusive enjoyment of them.64 Conjugal

56
INDIA CONST. art 19.

57
Farooq Ahmad Bhat v. State of J. & K., 2018 S.C.C. OnLine J. & K. 609 (India); Kharak Singh v. State of Uttar
Pradesh, A.I.R. 1978 S.C. 597 (India).
58
Devidas Ramachandra Tuljapurkar v. State of Maharashtra, (2015) 6 S.C.C. 1 (India); Subramanian Swamy v.
Union of India, (2016) 7 S.C.C. 221 (India) [hereinafter Subramanian Swamy].

59
Lily Thomas, supra note 29; State of Bombay v. Narasu Appa Mal, A.I.R. 1952 Bom. 84 (India); Miten v.
Union of India, 2008 S.C.C. OnLine Bom. 329 (India).

60
Indra Sarma, supra note 28; Skinner v. Oklahoma, 316 U.S. 535 (1942).

61
D. Sivadasan v. Santha, 2017 S.C.C. OnLine Ker. 9084 (India).
62
Dr. Himanshu Sharma v. State of J. & K., 2018 S.C.C. OnLine J. & K. 480 (India).

63
Loving v. Virginia, 388 U.S. 1 (1967).

64
Pinakin Mahipatray Rawal v. State of Gujarat, (2013) 10 S.C.C. 48 (India).

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MEMORIAL for RESPONDENT [ARGUMENTS ADVANCED]

rights are not only creation of a statute but also flow out from the institution of marriage.65

[¶38.] The respondent submits first, that married individuals upon solemnization of marriage
expressly consent to the rights flowing out of the marriage which includes. the marital right to
intercourse during such time as the ordinary relations created by the sacrosanct contract of
marriage exist between them.

[¶39.] Secondly, the marital right of each of the spouses to sexual intercourse in such
circumstances exists by virtue of the implied consent given at the time of marriage. However,
in cases where the husband uses the implied matrimonial consent to abuse his wife, the law
steps in and provides sufficient legal remedy to the wife.

[¶40.] Hence, it is submitted that in, Exception II to § 375 does not violate freedom of speech
and expression of a married woman guaranteed under Art. 19 (1) (a) of the Indian Constitution.

B. IN ARGUENDO, EXCEPTION II IMPOSES A REASONABLE RESTRICTION

[¶41.] The freedoms guaranteed by Art. 19(1)66 are not absolute and subject to reasonable
restrictions.67 It is submitted that Exception II imposes a reasonable restriction on the freedom
of speech and expression because first, the restriction is prescribed by law and is not vague [i];
secondly, the restriction imposed is in public interest [ii]; and lastly, the restriction imposed is
proportionate to the legislative aim [iii].

i. The restriction is prescribed by law and is not vague

[¶42.] For a restriction to be reasonable and legitimate, the interference must be provided
expressly by law.68 The law must not be vague69 and must be accessible70 and formulated with

65
Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4 S.C.C. 90 (India) [hereinafter Saroj Rani]; Flavia Agnes,
Conjugality, Property, Morality and Maintenance, 44 ECON. & POL. WKLY. 58, 60 (2009).
66
INDIA CONST. art 19(1).

67
Ramlila Maidan Incident v. Home Sec’y, Union of India, (2003) 4 S.C.C. 399 (India); Ajay Goswami v. Union
of India, (2007) 1 S.C.C. 143 (India).

68
Toby Mendel, Restricting Freedom of Expression: Standards and Principles, (Mar. 14, 2019, 6:44 PM),
http://www.law-democracy.org/wp-content/uploads/2010/07/10.03.Paper-on-Restrictions-on-FOE.pdf.
69
Submission to I.C.J. Panel of Eminent Jurists on Terrorism, Counter-Terrorism and Human Rights, (Mar. 14,
2019, 6:43 PM), https://www.article19.org/data/files/pdfs/analysis/terrorism-submission-to-icj-panel.pdf.

70
Steel v. United Kingdom, [1998] E.C.H.R. 95; Hashman v. United Kingdom, [1999] E.C.H.R. 13; Allistair
Patrick Brooker v. The Police, [2007] 3 N.Z.L.R. 91 (SC) (N.Z.).

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MEMORIAL for RESPONDENT [ARGUMENTS ADVANCED]

sufficient precision to enable the citizen to regulate his conduct in accordance with the law. 71
A person of ordinary intelligence should have a reasonable opportunity to know what is
prohibited in order to act accordingly,72 and an enactment is void73 if its prohibitions are not
clearly defined.74 Vagueness in law leads to a ‘chilling effect’ on the freedom of speech and
expression.75

[¶43.] The respondent submits that first, Exception II clearly lays down its conditions that
unlike unmarried people, sexual activity in the bond of marriage would not amount to rape.
There is a clear distinction and classification on the basis of marital status that the sexual
activity within marriage has not been criminalized under § 375. Therefore, there is no scope
for uncertainty and vagueness.

[¶44.] Secondly, in case of absence of Exception II, there would be restriction on husband’s
right to exercise his freedom of expression of indulging in a sexual activity76 which must be
equally protected.77 It would be uncertain for the husband to determine as to when the consent
of his wife would be said to be present and when not. Consequently, the husband will not be
able to reasonably foresee as to when exercising his expression, what he is doing is prohibited
under law or not.

[¶45.] Thus, the removal of exception II and such restriction imposed will lead to a chilling
effect on the freedom of expression of the husband. Hence, it is submitted that the restriction
provided by Exception II is not vague and prescribed by law.

71
Sunday Times v. United Kingdom, [1979] E.H.R.R. 2; Gay News v. United Kingdom, [1983] E.H.R.R. 5; G.
v. Germany, [1984] E.H.R.R. 6.

72
Kartar Singh v. State of Punjab, (1994) 3 S.C.C. 569 (India); Bharat Shantilal Shah v. The State of Maharashtra,
(2008) 13 S.C.C. 5 (India).

73
Musser v. Utah 333 US 95, 97 (1948); Zuber Ahmed v. Union of India, 2015 S.C.C. OnLine P. & H. 8826
(India); Winters v. People of State of New York, 333 U.S. 507 (1948).

74
The Ass’n of Traders v. Union of India, 2015 S.C.C. OnLine Bom. 4811 (India); North Delhi Mun. Corp. v.
Rajinder Sharma, 2014 S.C.C. OnLine Del. 4937 (India); Union of India v. Nisha Priya Bhatia, 2019 S.C.C.
OnLine Del. 6473 (India); KA Abbas v. Union of India, A.I.R. 1973 S.C. 123 (India).

75
Shreya Singhal v. Union of India, (2015) 5 S.C.C. 1 (India); Navtej Singh Johar v. Union of India, (2018) 10
S.C.C. 1 (India) [hereinafter Navtej Singh]; Baggett v. Bullitt, 377 U.S. 360 (1964); Grayned v. City of Rockford,
408 U.S. 104 (1972).
76
Navtej Singh, supra note 75; Jean-Paul Labaye v. The Queen, 2005 S.C.C. OnLine Can. 80 (Can.).

77
Richard H. Dana, Equality in Sexual Behavior: Impact on Man-Woman Relationships, 15 J. THOUGHT 9, 18
(1980).

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MEMORIAL for RESPONDENT [ARGUMENTS ADVANCED]

ii. The restriction is imposed in public interest

[¶46.] Reasonable restriction connotes that the limitation78 should not be beyond what is
required in interest of public.79 Moreover, public interest is one of the facets of restriction
covered under permissible restriction under Art. 19(2).80

[¶47.] Marriage is the world’s most basic and universal institution81, the foundation on which
families are created and society reproduces itself.82 If not protected, it will be detrimental to
the society. Public interest demands that the married status should be protected to the largest
possible extent.83 It is the duty of the state84 and of the court85 to protect the social fiber of
family life and save the sanctity of marriage.

[¶48.] The respondent submits that Exception II ensures that this sanctity and belief in
marriage is maintained by not providing unreasonable restriction on the sexual relationship and
limiting itself to rape cases within unmarried relationships and within marriage when it is below
18 years of age. Hence, it is submitted that the restriction on the right to freedom of expression
is reasonable and in public interest.

iii. The restriction imposed is proportionate to the legislative aim

[¶49.] When the constitutionality of a statutory provision is challenged86 on the ground of

78
Cellular Operators Ass’n of India v. T.R.A.I., (2016) 7 S.C.C. 703 (India); Sardha Ram Lal v. Haji Abdul Majid,
1959 S.C.C. OnLine P. & H. 143 (India).

79
Chintaman Rao v. State of Madhya Pradesh, A.I.R. 1951 S.C. 118 (India); State of Uttar Pradesh v. Kaushiliya,
A.I.R. 1964 S.C. 416 (India); Papnasam Labour Union v. Madura Coasts, (1995) 1 S.C.C. 501 (India); M.R.F.
Ltd. v. Inspector Kerala Gov’t, (1998) 8 S.C.C. 227 (India).

80
Sahara India Real Estate Corp. Ltd. v. S.E.B.I., (2012) 10 S.C.C. 603 (India); N.K. Bajpai v. Union of India,
(2012) 4 S.C.C. 653 (India); Hathisingh Mfg. Co. Ltd. v. Union of India, (1960) 3 S.C.R. 528 (India).

81
Harvinder Kaur v. Harmander Singh Choudhary, A.I.R. 1984 Del. 66 (India) [hereinafter Harvinder Kaur] ;
John O. Miron v. Richard Trudel, 1995 S.C.C. OnLine Can. S.C. 45 (Can.).
82
Meganatha Nayagar v. Smt. Susheela, 1956 S.C.C. OnLine Mad. 320 (India).

83
Naveen Kohli v. Neelu Kohli, (2006) 4 S.C.C. 558 (India); Samar Ghosh v. Jaya Ghosh, (2007) 4 S.C.C. 511
(India); Om Prakash Poddar v. Rina Kumari, 2013 S.C.C. OnLine Del. 2771 (India).

84
Preeti Gupta v. State of Jharkhand, (2010) 7 S.C.C. 667 (India); G.K. Rajagopala Rao v. The State Police Chief,
2016 S.C.C. OnLine Ker. 22487 (India).

85
Inderjeet Singh Grewal v. State of Punjab, (2011) 12 S.C.C. 588 (India).
86
Indian Hotel & Restaurants Ass’n v. State of Maharashtra, 2006 S.C.C. OnLine Bom. 418 (India); Arunachala
Nadar v. State of Madras, A.I.R. 1959 S.C. 300 (India); Express Newspapers v. Union of India, A.I.R. 1958 S.C.
578 (India).

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MEMORIAL for RESPONDENT [ARGUMENTS ADVANCED]

reasonableness of the restriction,87 the need of the society88 and protection of social welfare89
are to be considered to determine the reasonableness. 90

[¶50.] One right of a person has to coexist in harmony with the exercise of another right by
others91 with reasonable exercise of power by the State in the interests of social welfare as a
whole.92 The Court's duty is to strike a balance between competing claims of different
interests.93 Conjugal rights are inherent in the very institution of marriage.94

[¶51.] The respondent submits that a wife has her right of expression secured when she has
the option to avail other legal recourses if at all there is an abuse against her. On the other hand,
the husband has his conjugal right of sexual intercourse secured under the exception. Both the
rights are being provided equal protection thereof.

[¶52.] Hence, it is submitted that in the present case there is a proper balance between the right
to freedom of expression and conjugal rights.

In conclusion, the respondent submits before this hon’ble court that Exception II does not
violate Art. 19 of the Indian Constitution.

IV. EXCEPTION II TO § 375 OF THE INDIAN PENAL CODE DOES NOT

VIOLATE ARTICLE 21 OF THE INDIAN CONSTITUTION

87
Binoy Viswam v. Union of India, (2017) 7 S.C.C. 59 (India); B.P. Sharma v. Union of India, (2003) 7 S.C.C.
309 (India); Kavalappara Akottarathil Kochuni v. States of Madras & Kerala, A.I.R. 1960 S.C. 1080 (India).

88
State of Madras v. V.G. Row, A.I.R. 1952 S.C. 196 (India); Navdeep Kaur Gill v. State of Punjab, 2011 S.C.C.
OnLine P. & H. 3670 (India).

89
Modern Dental College & Research Centre v. State of Madhya Pradesh, (2016) 7 S.C.C. 353 (India); Neelkamal
Realtors Suburban Pvt. Ltd. v. Union of India, 2017 S.C.C. OnLine Bom. 9302 (India).
90
State of Bombay v. Balsara, A.I.R. 1951 S.C. 318 (India); Quraishi v. State of Bihar, A.I.R. 1958 S.C. 731
(India).

91
Acharya Maharajshri v. State of Gujarat, (1975) 1 S.C.C. 11 (India).

92
Asha Ranjan v. State of Bihar, (2017) 4 S.C.C. 397 (India); Devarshi Mukhopadhya & Rahul Bajaj, Locating
the 'Right to be Forgotten' in Indian Constitutional Jurisprudence: a Functional-Dialogical Analysis, 3 COMP.
CONST. L. & ADMN. L. QTLY 52, 65 (2017).
93
Subramanian Swamy, supra note 58; Mazdoor Kisan Shakti Sangathan v. Union of India, A.I.R. 2018 S.C.
3476 (India).

94
Jagraj Singh v. Birpal Kaur, (2007) 2 S.C.C. 564 (India).

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MEMORIAL for RESPONDENT [ARGUMENTS ADVANCED]

[¶53.] Art. 2195 guarantees to every person fundamental right to life and personal liberty.96
The expression ‘personal liberty’ in Art. 21 is of the widest amplitude97 and it covers a variety
of rights which go to constitute the personal liberty of a person.98The right to privacy is an
inalienable fundamental right,99 implicit in the right to life and liberty guaranteed under Art.
21.100 It is submitted that Exception II does not violate Art. 21 because first, Exception II
protects the right to privacy of the married couple [A] and; secondly, adequate legislations are
there under various penal laws to deal with offences of sexual abuse within marriage [B]

A. EXCEPTION II PROTECTS THE RIGHT TO PRIVACY OF THE MARRIED COUPLE

[¶54.] The right to privacy entails at its core the protection and preservation of sanctity of
institution of marriage from excessive interferences.101 It is submitted that Exception II protects
the right to privacy of the married couple because first, Exception II protects the privacy and
sanctity of institution of marriage [i] and secondly, Exception II protects the conjugal rights of
the married individuals [ii].

i. Exception II protects the privacy and sanctity of institution of marriage

[¶55.] The fundamental right to privacy safeguards an individual’s sanctity of marriage and
family life102 and the essential corollary of the sacramental nature of the marriage is its

95
INDIA CONST. art 21.

Francis Coralie Mullin v. Adm’r Union Territory of Delhi, (1981) 1 S.C.C. 608 (India); Meera Santosh Pal v.
96

Union of India, (2017) 3 S.C.C. 462; Maneka Gandhi v. Union of India, (1978) 1 S.C.C. 248.

97
T.V. Vatheeswaran v. State of Tamil Nadu, (1983) 2 S.C.C. 68 (India); Bachan Singh v. State of Punjab, (1980)
2 S.C.C. 84 (India).
98
Satwant Singh Sawhney v. D. Ramarathnam, (1967) 3 S.C.R. 525 (India); Kharak Singh v. State of Uttar
Pradesh, (1964) 1 S.C.R. 332 (India); Gobind v. State of Madhya Pradesh, (1975) 2 S.C.C. 148 (India).

99
K.S. Puttaswamy v. Union of India, (2017) 10 S.C.C. 1 (India) [hereinafter Puttaswamy]; R Rajagopal v. State
of Tamil Nadu, (1994) 6 S.C.C. 632 (India).

100
Navtej Singh, supra note 75; Sharda v. Dharampal, (2003) 4 S.C.C. 493 (India).
101
Joseph Shine v. Union of India, 2018 S.C.C. OnLine S.C. 1676 (India) [hereinafter Joseph Shine]; Baldev
Singh v. Surinder Mohan Sharma, (2003) 1 S.C.C. 34 (India); Puttaswamy, supra note 99.

102
Mr. X v. Hospital Z, (1998) 8 S.C.C. 296 (India); Shashank Shekhar Mishra v. Ajay Gupta, 2011 S.C.C. OnLine
Del. 3741 (India).

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MEMORIAL for RESPONDENT [ARGUMENTS ADVANCED]

indissolubility.103 Moreover, international declarations and conventions viz. ICCPR104 and

UDHR105 have also recognized the privacy of the sacred sphere of marriage.106 The act of
consummation of marital relationship107 and intimate sexual activity108 between the married
couple is an extreme private realm of marriage.109

[¶56.] The respondents contends that Exception II aims at the preservation of family
institution by ruling out the possibility of false, fabricated and motivated complain of ‘rape’ by
‘wife’ against her ‘husband’ and the pragmatic procedural difficulties that might arise in such
a legal proceeding. Exception II protects the aforementioned private realm of marriage from
excessive legislative interference by keeping sexual intercourse, within marriage, outside the
ambit of § 375 of IPC. Hence, it is submitted that Exception II preserves the sanctity of
institution of marriage.

ii. Exception II protects the conjugal rights of the married individuals

[¶57.] The fundamental right to privacy protects the sexual and intimate activity of the
individuals.110Right to live a married life is a fundamental right guaranteed by right to life and
personal liberty under Art. 21.111Marriage is a voluntary sexual and public social union of a
man and a woman.112 For solemnization of marriage, the wife and the husband enter into a

103
Harvinder Kaur, supra note 81; Dr. Dwaraka Bal v. Prof. Nainan Mathews, 1953 S.C.C. OnLine Mad. 31
(India); Lily Thomas, supra note 29.

104
International Covenant on Civil and Political Rights art. 23, Dec. 16, 1966, 999 U.N.T.S. 177.

105
G.A. Res. 217 (III) A, Universal Declaration of Human Rights, art. 16, (Dec. 10, 1948).

106
Vennangot Anuradha Samir v. Vennangot Mohandas Samir, (2015) 16 S.C.C. 596 (India); Bajrang Gangadhar
Revdekar v. Pooja Bajrang Revdekar, 2009 S.C.C. OnLine Bom. 1249 (India).

107
Jagannath Muduli v. Nirupama Behera, 2008 S.C.C. OnLine Ori. 29 (India); Joseph Shine, supra note 101.
108
John N. Edwards, Sexual Behavior in and out of Marriage: An Assessment of Correlates, 38 J. MARR. & FAM.,
73, 76 (1976).

109
Sharron Hinchliff, Intimacy, Commitment & Adaptation: Sexual relationships within long-term marriages, 21
U. SHEFFEILD 596, 600 (2004).

110
Puttaswamy, supra note 99.
111
Shafin Jahan v. Asokan K.M, (2018) 16 S.C.C. 408 (India); Krishna v. Union of India, 2010 S.C.C. OnLine
Del. 3589 (India).

112
Rita Nijhawan v. Balkishan Nijhawan, 1973 S.C.C. OnLine Del. 52 (India); Siraj Mohmedkhan Janmohamad
Khan v. Hafizunnisa Yasinkhan, (1981) 4 S.C.C. 250 (India).

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MEMORIAL for RESPONDENT [ARGUMENTS ADVANCED]

sacrosanct bond,113 wherein they have conjugal rights which they can enforce over each
other.114

[¶58.] Conjugal rights115 are the rights and privileges arising from the matrimonial
relationship116 which include the mutual rights of companionship and sexual relations.117 The
institution of marriage believes in consummation of the conjugal rights for the long sustainment
of marriage.118

[¶59.] The respondent contends that first, individuals who enter voluntarily in the sacred
matrimonial relationship, by virtue of their conjugal rights, enter into a sexual union. Secondly,
Exception II does not criminalize either of the individuals in the matrimonial bond for
exercising their fundamental right to consummate their conjugal right of sexual union in order
to ensure that the individuals are able to exercise their fundamental right without any fear of
being punished under the criminal law and to prevent the excessive intrusion of the state into
the private act of the couple. Hence, it is submitted that Exception II protects the conjugal rights
of the married individual.

B. ADEQUATE LEGISLATIONS ARE THERE TO DEAL WITH OFFENCES OF SEXUAL

ABUSE WITHIN MARRIAGE

[¶60.] When the ordinary provisions of the penal laws are sufficient to deal with an offence,
there is no need to create a new remedy or an act which may be contradicting or competing. 119
It is submitted that the existing legislations in our country are adequate and sufficient to deal
with cases of sexual abuse within marriage because first adequate legislations are provided
under the Indian Penal Code, 1860 [i]; and secondly, adequate legislation are provided under

113
Suresh Nathmal Rathi v. State of Maharashtra, (1991) S.C.C. OnLine Bom. 236 (India); Mithailal v. State of
Maharashtra, 1993 S.C.C. OnLine Bom. 171 (India).
114
Husseinkhan Sardarkhan v. Gulab Khatum, 1911 S.C.C. OnLine Bom. 27 (India); Anil Yashwant Karande v.
Mangal Anil Karande, 2015 S.C.C. OnLine Bom. 6257 (India).

115
2 P. RAMANATHA AIYAR, THE MAJOR LAW LEXICON 366 (4th ed. 2001).

116
ELIZABETH A. MARTIN, OXFORD DICTIONARY OF LAW 105 (5th ed. 2002).

117
Mangal Anil Karande v. Annie Varghese, 2008 S.C.C. OnLine. Bom. 461 (India); Bhagirathabai v. Bapurao
Devrao, 1991 S.C.C. OnLine Bom. 131 (India); BRYAN A. GARNER, BLACK’S LAW DICTIONARY 343 (10th ed.
2014)

118
Saroj Rani, supra note 65.

119
Dipak Bose v. State of West Bengal, (1973) 4 S.C.C. 43 (India).

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MEMORIAL for RESPONDENT [ARGUMENTS ADVANCED]

the Protection of Woman from Domestic Violence Act, 2005 [ii].

i. Adequate legislations are provided under the Indian Penal Code, 1860

[¶61.] First, § 498A120 is available for protection of women from all kinds of cruelty either by
the husband or by his relatives. The ambit of cruelty is wide enough to cover both physical 121
as well as mental cruelty.122 In cases, where the husband or his relatives subject the wife to
cruelty, they shall be punished with imprisonment.123

[¶62.] Secondly, § 354124 is provided to criminalize any assault or criminal force that outrages
the modesty of a woman. The words “any woman” used in § 354 is wide enough to provide its
protection to wife, against the acts done by the husband, which outrages the modesty of the
wife,125 even in private.126 A husband if he outrages the modesty of his wife shall be punished
with imprisonment.127

[¶63.] Lastly, § 377128 is provided to criminalize unnatural offences. A husband can be

convicted under § 377 if he is found guilty of committing unnatural offences like sodomy or
anal intercourse on his wife.129

[¶64.] Hence, it is submitted that there are adequate legislations provided under the IPC to
deal with offences of sexual abuse within the marital sphere.

120
The Indian Penal Code 1860, No. 45 of 1860, § 498A.

121
A. Jayachandra v. Aneel Kaur, A.I.R. 2005 S.C. 534 (India).

122
Gurbax Singh v. Harminder Kaur, A.I.R. 2011 S.C. 514 (India); Amar Lal Arora v. Shashi Bala, 2011 S.C.C.
OnLine Del. 2923 (India); Shobha Rani v. Madhukar Reddi, (1988) 1 S.C.C. 105 (India); P.S.A. PILLAI, CRIMINAL
LAW 895 (12th ed. 2014).

123
The Indian Penal Code 1860, No. 45 of 1860, § 498A; see also K. Srinivas Rao v. D. A. Deepa, (2013) 5 S.C.C.
226 (India); Man Mohan Vaid v. Meena Kumari, 2003 S.C.C. OnLine Del. 496 (India); Bhagwan Sakharam Said
v. State of Maharashtra, 2000 S.C.C. OnLine Bom. 237 (India).

124
The Indian Penal Code 1860, No. 45 of 1860, § 354.

125
Nimeshbhai Bharatbhai Desai v. State of Gujarat, 2018 S.C.C. OnLine Guj. 732 (India).

126
State of Rajasthan v. Vijairam, 1967 S.C.C. OnLine Raj. 49 (India); Surendra Chaher, Outraging the Modesty
of a Woman: Inter-Spousal Perspective, 32 J. INDIA L. INST. 527, 535 (1990).
127
Rameshwar v. State of Haryana, 1983 S.C.C. OnLine P. & H. 873 (India).

128
The Indian Penal Code 1860, No. 45 of 1860, § 377.

129
3 R.A.NELSON, INDIAN PENAL CODE 3846 (10th ed. 2008); A v. B, 1984 S.C.C. OnLine Guj. 8 (India).

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MEMORIAL for RESPONDENT [ARGUMENTS ADVANCED]

ii. Adequate legislations are provided under the Protection of Woman from
Domestic Violence Act, 2005

[¶65.] § 3130 provides protection to woman against domestic violence which is wide enough131
to cover all forms of sexual abuse – physical,132 mental and sexual.133 The ambit is wide enough
to cover cases of sexual abuse against wife by the husband and the legal recourse available to
a wife includes protection order, monetary relief and compensation, and penal punishment to
the perpetrator. 134 Hence, the respondent submits that the legislature has already provided for
adequate remedies to the married women if faced by sexual abuse by the husband.

In conclusion, the respondent humbly submits before this hon’ble court that Exception II to §
375 of IPC does not violate Art. 21 of the Indian Constitution.

130
The Protection of Woman from Domestic Violence Act, 2005, No. 43 of 2005, Acts of Parliament, 2005, § 3.

131
Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 S.C.C. 165 (India).

132
Shalini v. Kishor, (2015) 11 S.C.C. 718 (India); Juveria Abdul Majid Patni v. Atif Iqbal Mansoori, (2014) 10
S.C.C. 736 (India); Tarakant Singh v. State of Bihar, (2012) 11 S.C.C. 766 (India).
133
Raju Narayana Swamy v. Beena, 2017 S.C.C. OnLine Ker. 195 (India).

134
Guru Prasad Chattopadhyay v. State of West Bengal, 2017 S.C.C. OnLine Cal. 16210 (India); Shabnam
Parveen v. State of West Bengal, 2017 S.C.C. OnLine Cal. 16119 (India).

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MEMORIAL for RESPONDENT [PRAYER]

PRAYER

WHEREFORE, in the lights of the facts stated, arguments advanced and authorities cited, it is
most humbly prayed and implored before the Hon’ble Supreme Court of India, that it may be
graciously pleased to adjudge and declare that

I. The Public Interest Litigation filed before the Hon’ble Supreme Court of India is
not maintainable.

II. Exception II to § 375, The Indian Penal Code, 1860 does not violate the
fundamental rights of married women.

III. Exception II to § 375, The Indian Penal Code, 1860 is not unconstitutional.

And also, pass any order that The Hon’ble Supreme Court may deem fit in the interest of
equity, justice and good conscience.

For this gracious act of kindness, the Respondent shall duty bound forever pray.

Place: New Delhi S/d-

Dated: 29th March, 2019 Counsel for the Respondent

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