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TEAM CODE: “TC-77”
1 ST^ DEO MANGAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2022
THE HON’BLE SUPREME COURT OF INDIA
UNDER ARTICLE 32 AND 136 OF THE CONSTITUTION OF INDIVA
IN THE MATTERS OF
LIT FOUNDATION……………………………………………….………….PETITIONER
v/s UNION OF INDIVA…………………. ……………………………………...RESPONDENT
MEMORIAL FOR PETITIONER
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INDEX OF AUTHORITIES
- Anuj Garg & Ors v. Hotel Association Of India & Ors.........................................................3, Cases
- Ashok Kumar Pandey v. The State Of West Bengal.................................................................
- Balram Kumawat v. Union of India...........................................................................................
- Devidas Ramchandra Tuljapurkar v. State of Maharashtra.......................................................
- Hiral P. Harsora v. Kusum Narottamdas Harsora......................................................................
- Independent Thought v. Union of India.............................................................................1, 3,
- Janata Dal vs H.S. Chowdhary And Ors....................................................................................
- Joseph Shine v. Union of India..................................................................................................
- Peerless General Finance and Investment Co. Ltd. v. Reserve Bank of India...........................
- State of Gujarat v. Ambika Mills...............................................................................................
- X v. Principal Secretary, Health and Family Welfare Department, GNCTD............................
- People v. Liberta........................................................................................................................ Foreign Cases
- R v. R.........................................................................................................................................
ABBREVIATIONS
SERIAL NO. ABBREVIATIONS TERM
- & And
- ¶ Paragraph
- ¶¶ Paragraphs
- S. Section
- AIR All India Reporter
- art. Article
- cl. Clause
- Const. Constitution
- Ed. Edition
- GNCTD Government Of National Capital Territory Of Delhi
- Hon’ble Honorable
- Ltd. Limited
- n. Note
- No. Number
- Nos. Numbers
- pp. Page Number
- SC Supreme Court
- SCC Supreme Court Cases
- SCR Supreme Court Reports
- v. Versus Page | ii
STATEMENT OF FACTS
- The Petitioner is a non-governmental organisation headquartered in the State of Dahelvi, the Capital of Indiva. The Petitioner has spent several years tirelessly working towards its goal of securing protection for the women of Dahelvi against domestic violence. To its credit, the petitioner has succeeded in rescuing many women who have been victims of domestic violence in the state.
- In pursuance of its goal, the Petitioner regularly provides legal support to the woman in the State of Dahelvi with the intention of aiding their fight for justice. An opportunity to further this intention presented itself as the COVID-19 spread across Indiva. As a consequence of the pandemic, the Government of Indiva announced a complete lockdown throughout the country. During the period of lockdown, there was an exponential rise in the total number of cases of domestic violence. Victims regularly approached the Petitioner, seeking legal advice and help.
- The Petitioner, upon an analysis of the cases of domestic violence before it, realised that most of them involved forceful intercourse by the husband in the absence of any will/consent of his wife. Noting this, the Petitioner sought to prosecute the husbands for rape under the country's penal laws, but failed to do so because of the existence of Exception II of Section 375 of the Indiva Penal Code.
- Consequently, the Petitioner filed a PIL before the High Court of Dahelvi, challenging the above-mentioned exception and prayed for the criminalization of Marital Rape. The case challenging Exception II of Section 375 of the Indiva Penal Code was argued before the division bench of the High Court of Dahelvi. Unfortunately, the High Court of Dahelvi delivered a split judgment and failed to give a decisive decision on this point.
- While the petitioner was embroiled in this legal battle, the High Court of Karmataka held that a husband can be prosecuted for raping his wife despite the immunity provided under the Indiva Penal Code. Around the same time, the High Court of Chhatisghar confusingly held that sexual intercourse by husband was not to be termed as rape, even if it was by force or in violation of his wife’s consent. Page | iv
- The uncertainty on the penal law surrounding the grave issue of Marital Rape, led the Petitioner to file a PIL before the Hon'ble Supreme Court of Indiva, which has come to be the present case. The Petitioner's prime argument is that Exception II of Section 375 of the Indiva Penal Code is archaic and should be read down as such. Page | v
SUMMARY OF ARGUMENTS
- The Petition is maintainable under law as the matter involves substantial public interest and is being filed in good faith as a Public Interest Litigation as permitted by law.
- That the Exception to Section 375 should be struck down as: (1) There exists no presumption in favour of the constitutionality of Exception II to S. 375 of the IPC; (2) The striking down of Exception II to S. 375 of the IPC shall not lead to the formation of a new offence; (3) Exception II to S. 375 is not in consonance with the fundamental rights of women and goes against Articles 14, 15(1), 19(1)(a), and 21 of the Constitution; (4) It is the duty of this Hon’ble court to set Exception II to S. 375 of the IPC aside under Art. 13, without awaiting legislative action. Page | vii
ARGUMENTS ADVANCED
I. THAT THE PIL FILED BY THE FOUNDATION IS MAINTAINABLE UNDER LAW.
- An Public Interest litigation has been seen by our Courts as a tool that can be used meticulously by the judiciary to ensure and safeguard public interest behind any public act or action. It is used as a means to ensure social justice is given to all people.^1 The Petitioners Demand in this case is a just one, and one furthering women’s rights by asking for their fundamental rights to be enforced not just outside a marriage but within it as well. The Societal evil of not criminalizing marital rape has led to domestic abuse and inflicted suffering and trauma on millions of women across the years.
- The Court must see the clear social issues being raised by the matter all involving basic human dignity. This petition is filed for the common societal interest, not the interest or benefit of any one individual. This Court itself has laid down that whenever there is someone suffering from Fundamental rights abuses, that’s when PILs should be used and hence we submit the petition is maintainable before this court under law.^2 II. THAT THE EXCEPTION II TO S. 375 OF THE IPC SHOULD BE STRUCK DOWN.
- The Petitioner is aggrieved by the Exception II to S. 375 of the IPC, which defines rape, says that sexual intercourse by a man with his wife is not rape, unless she is below 15 years of age. The Hon’ble Supreme Court had itself taken an emphatic view to the rationale behind the Petitioner’s demand when it laid down that “a rapist remains a rapist and marriage with the victim does not convert him into a non-rapist”.^3 In holding so, the Apex Court had struck down a part of Exception II to S. 375 of the IPC, and the judgment was thus confined to rape by husbands of their minor wives only. It is argued that all female citizens are guaranteed the same constitutional rights to bodily integrity, equality and free expression, regardless of whether they are adult or minor wives.
- Recently, the Hon’ble Supreme Court has also clarified that wives, who conceive out of forced sex by their husbands, shall also be protected as ‘survivors of rape’ within the (^1) Ashok Kumar Pandey v. The State Of West Bengal (2004) 3 SCC 349. (^2) Janata Dal vs H.S. Chowdhary And Ors. (1992) 4 SCC 305. (^3) Independent Thought v. Union of India, (2017) 10 SCC 800, ¶73. Page | 1
seeks to achieve.^6 It is submitted that despite the fact that the burden of proving the unconstitutional nature of the marital rape exception does not lie on the Petitioner, it shall in good faith proceed to demonstrate the same through its submissions. II.2 THAT THE STRIKING DOWN OF EXCEPTION II TO S. 375 OF THE IPC SHALL NOT LEAD TO THE FORMATION OF A NEW OFFENCE.
- The Hon’ble Supreme Court has previously held that the partial striking down of Section 375 IPC did not lead to the fact of a new offence being created. Rather, such invalidation of a part of Exception II to Section 375 IPC was being done to bring it in consonance with the dictates of the Constitution.^7 Striking down the marital rape exception, far from creating a new offence, would merely enlarge the scope of offenders to include husbands who rape their adult wives within the purview of the offence of rape outlined under Section 375 of the IPC.
- In this regard, reference must be made to the reasoning followed by the New York Court of Appeals when it read down the marital rape exception as being “unconstitutionally underinclusive”.^8 In doing so, that Court held that striking down an exemption that is under-inclusive, does not amount to the “creation of crime”.^9 Similarly, the House of Lords has previously held when striking down Lord Hale’s common law fiction of implied consent in marriage, that doing so was not equivalent to the creation of a new offence but only amounted to the removal of a fiction that was “anachronistic and offensive”.^10
- In light of the above considerations, it becomes clear that when adjudging the constitutional validity of a provision, if the court deems it fit to strike it down and because of this, if a new class of offenders get included within the ambit of the provision, then by no stretch of imagination would this amount to the creation of a new offence.^11 As has (^6) Anuj Garg & Ors v. Hotel Association Of India & Ors, AIR 2008 SC 663, ¶¶46-51. (^7) Independent Thought v. Union of India, (2017) 10 SCC 800, ¶¶81-85. (^8) People v. Liberta, 64 N.Y. 2d 152 (New York Court of Appeals). (^9) Ibid. (^10) R v. R, [1991] UKHL 12 (House of Lords). (^11) State of Gujarat v. Ambika Mills, (1974) 4 SCC 656. Page | 3
been recognised by the Hon’ble Supreme Court, the law distinguishes between the creation of a new offence and the mere interpretation of constituents of an existing offence which is the traditional negative act of judicial review.^12 It is thus submitted that unlike certain apprehensions that may be raised to the contrary, the striking down of Exception II to S. 375 of the IPC will not lead to the creation of a new offence. II.3 THAT EXCEPTION II TO S. 375 IS NOT IN CONSONANCE WITH THE FUNDAMENTAL RIGHTS OF WOMEN.
- It is submitted that Exception II to S.375 of the IPC is violating fundamental rights as (1) It violates Article 14; (2) It violates Article 15(1); (3) It violates Article 21; and (4) It violates Article (19)(1)(a).
- The IPC classifies victims on the basis of their married status depending on if they are married or not different punishments and criminal liability is established. This classification is not connected and bears no relation whatsoever to the object of the statute. This object in this case is to criminalise rape and protect women’s bodily integrity. Hence the reasonable classification test that is required for a statue to pass the article 14 constitutionality test is not fulfilled in the present case.
- It also violates Article 15(1) of the constitution. The Supreme Court has held in past decisions that any discrimination made on the basis of sex would be arbitrary and founded on stereotypical understanding of sex. Here, we contend the exception draws on a stereotypical understanding of marriage and is thus discriminatory under 15(1).
- We also contend that the provision violate article 21 of the constitution of India. This is because a women’s right and freedom to make reproductive decisions is her area of personal liberty. No restriction whatsoever can be put on exercise of reproductive choices in our country as per the rights guaranteed under 21. However, by allowing a man non- consensual sexual access to a women, this reproductive choice leaves her hands. (^12) Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 16521, ¶50; Balram Kumawat v. Union of India, (2003) 7 SCC 628, ¶¶4-40; Devidas Ramchandra Tuljapurkar v. State of Maharashtra, (2015) 6 SCC 1 ¶108, 141. Page | 4
Constitution empowers the Hon’ble Supreme Court to strike down laws that are inconsistent with or in derogation of fundamental rights.
- The Hon’ble Supreme Court thus has an obligation to declare the marital rape exception to be unconstitutional, more so, when the Legislature has been lethargic. It is therefore submitted that this Hon’ble Court must set aside the marital rape exception in line with Art. 13 of the Constitution.
- Page | 6
PRAYER
Wherefore in light of the issues raised, arguments advanced and authorities cited, it is humbly prayed that this Hon’ble Court may be pleased to adjudge and declare that:
- The PIL filed by the Foundation is maintainable under law; and
- The Exception II to S. 375 of the IPC is liable to be struck down as being unconstitutional. And pass any such order in the interest of justice, equity, and good conscience. ALL OF WHICH IS RESPECTFULLY SUBMITTED
TC-
COUNSEL FOR THE PETITIONER
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