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1ST DEO MANGAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2022
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TEAM CODE: T
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BEFORE THE HONORABLE SUPREME COURT OF UNION OF INIDIVA
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PUBLIC INTEREST LITIGATION
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W.P. (C) NO. ____ OF 2022
UNDER ARTICLE 32 OF THE INDIVAN CONSTITUTION
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IN THE MATTER BETWEEN
LIT FOUNDATION & Ors……….……………………..PETITIONER V. UNION OF INDIVA……………………………….…….RESPONDENT ____________________________________________________________________________ UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION JUSTICES OF THE SUPREME COURT OF INDIVA ____________________________________________________________________________ MEMORANDUM ON BEHALF OF THE PETITIONER
TABLE OF CONTENTS
Sr. No (^) Particulars Page No.
1. (^) **Table of content 2-
- Index of Abbreviations 4-
- Index of Authorities 7-
- Statement of jurisdiction 11
- Statement of fact 12
- Statement of issue 13
- Summary of argument 14
- Argument advanced---** Whether the Doctrine of Coverture and Doctrine of implied consent in a Matrimonial relationship would still be applicable in the 21st century or not? 1.1 Non-Applicability of Doctrine of Coverture 1.2 Non-applicability of Doctrine of Implied consent 1. Whether the Exception II of Section 375, IPC 1860 is violative of Article 14 and 15(1) Constitution of India, 1950? 2.1 Right to equality 2.2 Immunity only in procedural law and not in substantial 2.3 Violation of Article 15 of the constitution of Indiva 1. Whether Exception II of Section 375 is Violative of Article 19(1)(a) and Article 21 Constitution of Indiva, 1950?
S.No ABBREVIATION FULL FORM 1.
& AND
2. AIR
ALL INDIA REPORTER
3. Annex. ANNEXURE 4. **Anr. ANOTHER
- Art.**
ARTICLE
**6. Commr. COMMISSIONER
- Corpn.**
CORPORATION
8. CA
CRIMINAL APPEAL
9. Ed. EDITION 10. Govt.
GOVERNMENT
11. HC HIGH COURT
Hon’ble
HONORABLE
IPC
INDIVA PENAL CODE
14. No. NUMBER 15. Viz.
NAMELY
Ors.
OTHERS
17. ¶ PAGE
18. Pvt. Ltd. PRIVATE LIMITED 19. r/w
READ WITH
20. SCC SUPREME COURT CASES
SCR
SUPREME COURT REPORTER
**22. Supp. SUPPLEMENT
- SC SUPREME COURT 24.** Sec
SECTION
25. i.e THAT IS 26. U/S
UNDER SECTION
UOI
UNION OF INDIVA
BOOKS REFERRED
S.No PARTICULARS 1. P.S.A. Pillai- Criminal Law 13th^ edition
2. CONSTITUTION OF INDIA by- Dr.Subhash C.Kashyap 3. Ratanlal & Dhirajlal- The Indian Penal Code 35th^ edition 4. Constitution Of India by V N Shukla 5. Black’s Law dictionary, 9th^ edition, edited by Bryan a.garner STATUTES REFERRED S.No PARTICULARS
- CONSTITUTION OF INDIA, 1950
- CRIMINAL PROCEDURE CODE, 1973
- INDIAN PENAL CODE, 1860
- INDIAN EVIDENCE ACT, 1872.
- DOMESTIC VIOLENCE ACT, 2005. WEBSITES REFERRED
S.No PARTICULARS
- https://indiankanoon.org/doc/170570619/
- www.octopus.com
- www.lexisnexis.com
- www.mupratafast.com
- www.cpwd.gov.in
- www.history.com
- www.judis.nic.in CASES CITED **_S.No PARTICULARS
- Joseph Shine vs. Union Of India
Farhan vs. State &Anr
- Venkatacharyulu vs. Rangacharyulu_**
STATEMENT OF JURISDICTION
The Petitioner humbly submits to the jurisdiction of this Hon’ble Supreme Court of IndiVa by filing a PUBLIC INTEREST LITIGATION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIVA FOR PASSING OF AN APPROPRIATE WRIT ORDER OR DIRECTION DECLARING EXCEPTION 2 OF SECTION 375 OF IPC,1860, TO BE ARBITRARY, UNREASONABLE, UNCONSTITUTIONAL, VIOLATIVE OF ARTICLE 14, 15, 19 21 AND OTHER INHERENT HUMAN RIGHTS BY CONSTITUTION OF INDIVA. Therefore the jurisdiction of this court, which protects the citizen of Indiva from any violation of their fundamental right, is applicable in the present case and the court can hear and grant subsequent directions/orders/writs in regard to subject matter of the writ petition filed by the petitioner, under the Article 32 of Constitution of Indiva^1. 1 32. Remedies for enforcement of rights conferred by this Part- (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part (3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 ) (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution
STATEMENT OF FACTS
● LIT Foundation (hereinafter referred to as foundation) is Headquartered in the State of Dahelvi, the Capital of Indiva. The Foundation is a Non-government organisation that works for the protection of women against domestic violence and rescued many women, victims of domestic violence in the state of Dahelvi. The foundation also provides legal support in their fight for justice. ● As COVID-19 ravaged Indiva, the Government of Indiva announced a complete lockdown throughout the Nation. During the period of lockdown, the cases of domestic violence have increased exponentially. ● Victims have approached the foundation for legal help. The foundation found that in many cases of domestic violence there was forceful intercourse by the husband against the will/consent of his wife. The foundation failed to prosecute the husbands for rape because of exception II of Section 375 of the Indiva Penal Code. ● The foundation filed a PIL before the High Court of Dahelvi, challenging the above- mentioned exception and pleaded for the criminalization of Marital Rape. The High Court of Dahelvi clubbed the PIL and petition of Mr Furkan and subjected it to the outcome of the case. The case challenging exception II of Section 375 was argued before the division bench of the High Court of Dahelvi. The High Court of Dahelvi delivered a split judgment and failed to give a decisive decision on this point.
SUMMARY OF ARGUMENTS
1. Whether the Doctrine of Coverture and Doctrine of implied consent in a Matrimonial relationship would still be applicable in the 21st century or not? The Counsel on behalf of the Petitioner humbly submits the Doctrine of coverture and Doctrine of Implied consent can’t be applicable in a Matrimonial Relationship in the 21st century where men and women in the society are treated equally. Exception 2 is based on an archaic, outdated and extremely regressive principle whereunder the married woman is treated as subordinate to her husband. 2. Whether the Exception II of Section 375, IPC 1860 is violative of Article 14 and 15(1) Constitution of India, 1950? The Counsel on behalf of the Petitioner humbly submits that the impugned provision (ie.,Exception II of Section 375 IPC), is violative of Article 14 read with 15(1) of the Constitution of Indiva, 1950 due to it **jeopardising the basic fundamental rights of women.
- Whether Exception II of Section 375 is Violative of Article 19(1)(a) and Article 21 Constitution of Indiva, 1950?** The counsel most humbly states that Exception II of Section 375 violates the most integral right of a woman or to be more specific, a “married woman” which has been guaranteed and protected under Art.19(1)(a) and Art.21.
4. Whether Domestic Violence Act, POCSO Act and Section 498 A IPC shall be treated as an alternative to marital rape for wife? The Counsel most humbly submits to this superior court that the Domestic Violence 2005, POCSO 2012 and Section 489A can’t be served as an alternative remedy in the case of marital rape. DV Act, is more like a civil remedy, POCSO is applicable only to minors and section 489A specifically talks only about cruelty were marital rape. **A RGUMENT ADVANCED
- Whether the Doctrine of Coverture and Doctrine of implied consent in a Matrimonial relationship would still be applicable in the 21st century or not?** The Counsel on behalf of the Petitioner humbly submits that impugned provision of IPC which legalise marital rape (i.e., Exception 2 of section 375 IPC ) and treat the rape of separated women unequally, are fundamentally opposed to women’s constitutionally recognized basic rights of equality, right to life and dignity. Exception 2 to Section 375 has existed in the Indivan Penal Code since the time of its enactment by the British in 1860. Exception 2 is based on an archaic, outdated and extremely regressive principle whereunder the married woman is treated as subordinate to and bound by the dictates of the husband, where she is treated as a person devoid of basic human rights, her wishes and autonomy and as a person without a legal existence of her own and as a property of her husband. 1.1 NON APPLICABILITY OF DOCTRINE OF COVERTURE: We are in the 21st Century, but some customs and laws of centuries past continue to linger and define modern laws that do not abide by the constitution. One of such is the Common Law Doctrine of Coverture. Many common law rules, especially those concerning the family have their root in religion. In England, many centuries ago, there developed a common law principle known as the Doctrine of Coverture whereunder upon marriage, the woman lost her separate existence and was regarded as the property of and subordinate to her husband. By virtue of this
artificial distinction between married and unmarried women was not constitutionally sustainable^7 and lastly, right to succession by the 2015 amendment to Hindu Succession Act , 19568 and amongst all this, it would be wrong to still consider women to be the property of parents, guardians and husbands as well still. Law does not see husband and wife as a single person and it can’t presume their mutual consent for sexual intercourse between them. They both are separate and distinct natural persons under law and they have their own personal rights and desires, law can’t club both. This is evident from Section 120 Indivan Evidence Act, 1872 which states that in criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness^9 and even in Section 122 Indivan Evidence Act, 1872 the disclosure of matrimonial communication is permissible by any of the spouse if he or she has initiated a suit or proceeding against the other spouse^10. So, this shows that the law doesn’t consider them as a single person, then the exception presuming the consent is non-applicable and outdated. 1.2 NON-APPLICABILITY OF DOCTRINE OF IMPLIED CONSENT: So far, we've established that marital rape does not appear to exist in Indivan law. Consent is the most important factor to consider when discussing rape. This factor, however, vanishes when one is hidden behind the iron curtain of marriage. After marriage, consent in sexual intercourse is presumed, giving rise to the concept of implied consent. Marital rape is defined as non-consensual sexual intercourse with one's own spouse in a marital relationship. The second exception to Section 375 of the Indivan Penal Code of 1861 states that sexual intercourse between a man and his wife over the age of 18 does not constitute rape. This exception stems from the Victorian 'Doctrine of Coverture,' which granted women non- independent legal status. This has been accompanied by a rigidly patriarchal culture, with family as the most important social unit, which has ensured that marital rape has always been socially acceptable. 7 https://timesofindia.indiatimes.com/topic/marital-rape. 8 Hindu Succession Amendment Act, 2015. 9 IEA, sec. 120, 1872. 10 IEA, sec. 122, 1872.
In many precedents, the court has held that marriage can no longer be considered as a contract and it is a sacrament between two families as seen in one of the cases, Venkatacharyulu v. Rangacharyulu, the court observed: “ There can be no doubt that marriage is a religious ceremony. According to all the texts, it is a sacrament, the only one prescribed for a woman and one of the principal religious ties prescribed for the purification of the soul. It creates a religious tie when once created, cannot be untied. It is not a mere contract in which a consenting mind is indispensable.^11 Though the universal purpose of coming together and marrying is for reproduction but, it doesn’t mean that one spouse have perpetually consented to sexual activity over the other spouse. Everyone has their own right to bodily integrity and autonomy. Marriage can no longer be considered as a universal license for sexual activity, ignoring the consent (express) So, Doctrine of Implied Consent no longer shall be applicable in martial relationship. For instance, when we look at Contracts by Minor to be held void (Indian Contract Act)^12 and Minor Marriage is voidable (Hindu marriage Act)^13 which helps us to give a clear picture how the parliament intended the institution of marriage to be Marriage is not a contract, if it was a contract, a minor marriage contract would have been void at the instance itself and it is made voidable, considering the holiness of marriage and family. Hence why the petitioner emphasis on the consent being one of the major factor or element of rape, the husbands shall not be given this free pass to intercourse with their wife against their will. Since consent plays an important role to classify whether the intercousre constitutes an offence or not, it shall not exempt the married women out of it just because of their marital status. The rights of women shall outweigh the importance of the institution of marriage because they’re not safe guarded, eventually the institution of marriage falls. 2.Whether the Exception II of Section 375, IPC 1860 is violative of Article 14 and 15(1) Constitution of India, 1950? The Counsel on behalf of the Petitioner humbly submits that the impugned provision (ie.,Exception II of Section 375 IPC), is violative of Article 14 read with 15(1) of the 11 Venkatacharyulu v. Rangacharyulu, (1891) ILR 14 Mad 316. 12 Indian Contract Act, 1872. 13 Hindu Marriage Act, 1955.
against wife, he has immunity. Hence according to the Indivian subsatantive laws men are convicted for cruelty in a marriage but not for rape. This is not intelligible differentia. In the present case, the impugned provisions create three classes of rape victims without any intelligible differentia between the harms they suffer and without a plausible rational nexus to an object sought to be achieved by the criminal law. The above three classifications of women who are victims of rape would be constitutional if and only if the classification is based upon sound intelligible differentia which has a rational relation to the object sought to be achieved by the impugned provisions. The Union of Indiva has failed to disclose the object or purpose sought to be achieved by itself in classifying rape victims into these three categories. Indeed through the impugned provisions, the Union has purposefully refused to recognize and accord equal rights to women in a marriage. In the case of Nimeshbhai Bharatbhai Desai vs the State Of Gujarat , Justice J.B. Pardiwala observed that “ A law that does not give married and unmarried women equal protection creates conditions that lead to the marital rape. It allows men and women to believe that wife rape is acceptable. Making wife rape illegal or an offense will remove the destructive attitudes that promote the marital rape. In this case, the Justice has upheld the point that the women who are married are prone to rape (marital rape here) than the unmarried women.^15 In the case of Dr. Subramanian Swamy v. Director , in para 57 it was held that ''the Constitution permits the State to determine, by the process of classification, what should be regarded as a class for purposes of legislation and in relation to law enacted on a particular subject ”.^16 Differentia which is the basis of classification must be sound and must have reasonable relation to the object of the legislation.^17 If the “object of classification itself is discriminatory, then explanation that classification is reasonable having rational relation to the object sought to be achieved is immaterial.” The Argument that the differentiation between the married and unmarried women creates intelligible differentia and a rational nexus by the act of marriage is an improper predicament 15 Nimeshbhai Bharatbhai Desai vs the State Of Gujarat, R/SC NO. 7083 of 2017. 16 Dr.Subramanian Swamy vs Director, Cbi & Anr, 2005 (1) AWC 797 SC, 2005 CriLJ 1413, 2005 (2) JCR 273 SC, JT 2005 (2) SC 382, (2005) 2 SCC 317. 17 Dr. Subramanian Swamy v. Director, CBI (AIR 2014 8 SC 682).
because acquiring a position or relationship should not give licence to a person to commit an offence or decriminalizes an act from being an offence. So, likewise, a man who has been married to a women, being in a position as a husband, does not allow him to do sexual activity against her consent. While marriage may be a legitimate basis of classification for certain reasons (imposing special rights and duties between parties to the marriage, or providing immunity from providing evidence against one’s spouse), it can never be a legitimate basis for exempting a party to the marriage from the criminal law. Indeed, under Sections 354, 377, 302, 323 IPC^18 there is no such exemption – if sodomy, sexual assault, murder and simple hurt is not de- criminalised in marriage, there is no reason rape should be. Jurisprudence on Article 14 and the mandatory criteria for a constitutionally valid classification/intelligible differentia is laid down by the Apex Court as below: In the case of Anuj Garg & Ors. Vs. Kotlal Association of India and Ors, the Hon’ble Supreme Court at para 47 stated that: “ No law in its ultimate effect should end up perpetuating the oppression of women. Personal freedom is a fundamental tenet which cannot be compromised in the name of expediency unless there is a compelling state purpose. Heightened level of scrutiny is the normative threshold for judicial review in such cases”. The Apex court cited the approach of European Court of Human Rights to review a discriminatory statue. At para 50, the Court stated that: “The test to review such a Protective Discrimination statute would entail a two pronged scrutiny: (a) the legislative interference (induced by sex discriminatory legalisation in the instant case) should be justified in principle. (b) the same should be proportionate in measure. Hence it was noted that personal freedom cannot be compromised in the name of expediency until and unless there is a compelling state purpose.^19 It is stated that there can be no compelling state purpose in treating rape victims differently based on marital status and their prior relationship to the rapist. It is to be noted that Sections 354 and 509 on verbal sexual assault, Section 323 on simple assault, Section 302 on murder, do not make any differentiation between married murder sexual assault and sexual harassment 18 IPC, Sec. 354, 377, 302 & 323, 1860. 19 Anuj Garg & Ors. Vs. Kotlal Association of India and Ors. (2008) 3 SCC (1).
