NEW LAW COLLEGE, INTRA MOOT COURT COMPETITION 2019

TEAM CODE :

IN THE HON’BLE SUPREME COURT OF INDIA

IN THE MATTER OF

ANITA HASIA AND ORS. …………PETITIONER

V.

UNION OF INDIA …………RESPONDENT

1
WRITTEN SUBMISSION ON THE BEHALF OF RESPONDENT
 NEW LAW COLLEGE, INTRA MOOT COURT COMPETITION 2019

TABLE OF CONTENTS

1. LIST OF ABBEVIATIONS…………………….................................................................3
2. INDEX OF AUTHORITIES…………………………………………………………………………………...4
3. STATEMENT OF JURISDICTION………………………………………………………………………….6
4. STATEMENT OF FACTS………………………………………………………………………………………7
5. ISSUES RAISED………………………………………………………………………………………………….8
6. SUMMARY OF ARGUMENTS……………………………………………………………………………..9
7. ARGUMENTS ADVANCED………………………………………………………………………………….11

8. PRAYER…………………………………………………………………………………………………………….22

2
WRITTEN SUBMISSION ON THE BEHALF OF RESPONDENT
 NEW LAW COLLEGE, INTRA MOOT COURT COMPETITION 2019

LIST OF ABBREVIATION

Hon’ble Honorable
ORS. Others
V. Verses
Excep. Execept
Sec. Section
AIR All India Reporter
SC Supreme Court
ed. Edition
Dr. Doctor
SBI State bank of India
IPC Indian Penal Code
Art. Article
CONST. Constitution
Cl. Clause
Anr. Another
SCC Supreme Court Cases
H.P Himachal Pradesh
CrLJ Criminal Law Journal
CEDAW Convetion on Elimination of All forms of
Discrimination against Women
UDHR Universal Declaration on Human Rights
M.P Madhya Pradesh

3
WRITTEN SUBMISSION ON THE BEHALF OF RESPONDENT
 NEW LAW COLLEGE, INTRA MOOT COURT COMPETITION 2019

INDEX OF AUTHORITIES

1. CASES

1. S.P GUPTA AND ORS V. PRESIDENT OF INDIA AND ORS , AIR 1982 SC 149

2. ANDHRA INDUSTRIAL WORKS V. CHIEF CONTROLLER OF IMPOTS, AIR 1974 SC

1539

3. Dillip kumar Garg and others v. State of Uttar Pradesh( 2009 ) 4 SCC 753

4. J.P Bansal v. state AIR 2003 SC 1405

5. Vinita Saxena V. PankajPandit(2006) 3 SCC 778

6. Saroj Rani v. Sudarshankumar

7. X' vs. Hospital 'Z(1998) 8 SCC 296

8. Rajesh Sharma & Ors V. State of UP AIR 2017 SC 3869

9. Arnesh kumarVs State of Bihar

10. RIT foundation v. Union of India

II. STATUTES

1. Constitution of India
2. Indian Penal Code
3. Criminal Procedure Code
4. Indian Evidence Act
5. Domestic Violence Act

4
WRITTEN SUBMISSION ON THE BEHALF OF RESPONDENT
 NEW LAW COLLEGE, INTRA MOOT COURT COMPETITION 2019

III. BOOKS
1. MP Jain INDIAN Constitutional Law
2. Ratanlal&DhirajlalThe IPC
3. Dr. JN Pandey Constitutional Law of India
4. Family Law Paras Diwan

IV. SITES
1. http://www.manupatra.com
2. http://www.scconline.com
3. http://www.westlawindia.com

5
WRITTEN SUBMISSION ON THE BEHALF OF RESPONDENT
 NEW LAW COLLEGE, INTRA MOOT COURT COMPETITION 2019

STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of India has the Original jurisdiction to try, entertain and dispose of
the present case by virtue of Article 32 1 of the Indian Constitution.

The present Memorandum sets forth the Facts, Contentions and arguments in the present
case.

1
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.

6
WRITTEN SUBMISSION ON THE BEHALF OF RESPONDENT
 NEW LAW COLLEGE, INTRA MOOT COURT COMPETITION 2019

STATEMENT OF FACTS

¶1 Anita was an MBA student studying at Allahabad. She met a man named Sanjay, who was
working as a senior software engineer, through a social networking website and they both fall
in love with each other. After Anita finishes of her MBA course and got placed in a reputed
MNC .

¶2 After marriage Sanjay’s attitude towards Anita changed substantially. He was more
interested in physical relationship rather than developing their emotional compatibility. He
would have intercourse even if Anita would be reluctant to do so.

¶3 Later, Anita had to leave her job and go to us with Sanjay for a project. Although, Anita tried
to convince Sanjay but he didn’t agree and forced her to leave her job. Sanjay also used physical
force whenever she used to convince him of her point.

¶4 Anita’s three years in us with his husband were most miserable years of Anita’s life. There
were frequent instances of forced sexual intercourse without Anita’s consent.

¶5 They returned to India after Sanjay’s project ended, later, Anita shocked after hearing that
they went to us their in-laws continuously call he parents and asked for money as their
daughter was living abroad with their son. Anita tried talking to Sanjay about this but he always
avoided.

¶6 Once when she asked her mother in law about taking money from her parents, in front of Sanjay, he
grabbed her by her hair and took her inside her room and assaulted her physically and sexually and used
the word “you are my wife and you have only one purpose in life and that is to serve me, never try to
dominate me”. Anita knew that her parents are already bothered by her wellness and therefore she
never discussed about this to her parents. She lost all her hope as she had nobody who can save
her from this miserable and excruciating life.

¶7 One day Anita approached to a female advocate who is fighting for women rights and
equality. She told her whole history and detail her suffering The advocate agreed to fight for
Anita and for all the females of the country who have been suffering from time immemorial and
are not able to raise their voice against a crime just because that crime has not been designated as
a crime , as it is done withing four walls of matrimonial relationship. .Hence she along with
Anita filed this PIL in Supreme Court for quashing EXPLANATION II OF SECTION 375 AS
UNCONSTITUTIONAL. This case was referred to the constitutional bench of the Supreme
Court and is pending to be heard on 02.03.2019.

7
WRITTEN SUBMISSION ON THE BEHALF OF RESPONDENT
 NEW LAW COLLEGE, INTRA MOOT COURT COMPETITION 2019

ISSUES RAISED

ISSUE I

WHETHER THIS PIL IS MAINTANABLE OR NOT?

ISSUE II

WHETHER JUDICIARY SHOULD INTERFERE IN THE LEGISLATIVE POLICY OR

NOT?

ISSUE III

WHETHER IT IS REQUIRED TO REPEAL THIS LAW OR NOT?

ISSUE IV

WHETHER MAKING IT PUNISHABLE LEADS TO DISINTEGRATION OF

MARRIAGE OR NOT?

8
WRITTEN SUBMISSION ON THE BEHALF OF RESPONDENT
 NEW LAW COLLEGE, INTRA MOOT COURT COMPETITION 2019

SUMMARY OF ARGUMENTS

I. THAT THIS PIL IS NOT MAINTANABLE

It is humbly submitted to the Hon’ble Court that the PIL is not maintainable as;

There is no violation of fundamental rights and Article 32 of the Indian Constitution enforces
only fundamental rights.

II. THAT JUDICIARY SHOULD NOT INTERFERE IN THE LEGISLATIVE

POLICY

That it is humbly submitted to Hon’ble Court that the Judiciary should not interfere in legislative
policy

That the legislature id the arropriate authority to decide the matter

That the doctrine of separation of power should not be breached.

III. THAT IT IS NOT REQUIRED TO REPEAL THIS LAW

It is humbly submitted to the Hon’ble Court that it is not require to repeal this law as;

There are various law present in the statute for protection of married women and the petitioner
wishes to argue that the existing laws are very muchcapable of dealing with the cases of sexual
abuse of women and there isno need to either bring a fresh law to deal with it nor there a
requirement to withdraw the protection granted to husbands provided under Section 375of the
Indian Penal Code.
;(i) Remedies under Protection of women from domestic Violence Act

(ii) Remedies under IPC in Section 498A

9
WRITTEN SUBMISSION ON THE BEHALF OF RESPONDENT
 NEW LAW COLLEGE, INTRA MOOT COURT COMPETITION 2019

IV. THAT MAKING IT PUNISHABLE LEADS TO DISINTEGRATION OF

MARRIAGE

That making it punishable , it will disintegrate the institution of marriage ?

It Is submitted to the Hon’ble Court that making it punishable will disintegrate the institution of
marriage as In India women protection related provisions in Indian Penal Code is mostly
misused by the women , in order to harass the husband.

There are many countries who have not recognize the marital rape in their country.

That the removal of protection given to husbands under Section 375 will result in a law which
will be of such nature that the chances of its misuse will be so high and the innocent husbands
shall be left with no remedy and would be subjected to cruelty on part of wives.
By definition, sex within marriage can never amount to rape.

10
WRITTEN SUBMISSION ON THE BEHALF OF RESPONDENT
 NEW LAW COLLEGE, INTRA MOOT COURT COMPETITION 2019

ARGUMENT ADVANCED

I. THAT THIS PIL IS NOT MAINTANABLE

¶8 Were in Judges Transfer2case Bhagwati J pointed out that in the words of Article 32(1) , there
is no limitation that the Fundamental rights sought to be enforced must belong to the person
moving the Court . “ It is clear on plain language of clause (1) of Article 32 that whenever there
is a violation of a Fundamental Right anyone can move the Supreme Court for enforcement of
such Fundamental Rights .

¶9 It is humbly submitted to the Hon’ble court that , in this case Supreme court has observed that
the no actions lies in the supreme court under Article 32 unless there is an infringement of
fundamental Rights3. And the present case the there is no violation of fundamental rights hence
this PIL is not maintainable.

¶10 In the case of Dillip kumar Garg and others v. State of Uttar Pradesh 4 in para 18 it is stated
that ; The decision to treat all Junior Engineers, whether degree holders or diploma holders, as
equals for the purpose of promotion is a policy decision, and it is well-settled that this Court
should not ordinarily interfere in policy decisions unless there is clear violation of some
constitutional provision or the statute. We find no such violation in this case.

2
S.P GUPTA AND ORS V. PRESIDENT OF INDIA AND ORS , AIR 1982 SC 149
3
ANDHRA INDUSTRIAL WORKS V. CHIEF CONTROLLER OF IMPOTS, AIR 1974 SC 1539
4
( 2009 ) 4 SCC 753

11
WRITTEN SUBMISSION ON THE BEHALF OF RESPONDENT
 NEW LAW COLLEGE, INTRA MOOT COURT COMPETITION 2019

II. THAT JUDICIARY SHOULD NOT INTERFERE IN THE LEGISLATIVE POLICY

¶11 In J.P bansal v. state5 of Rajasthan the SC observed;

“ It is true that this court in interpretation the constitution enjoys a freedom which is not
available in interpreting the statute . It endangers continued public interest in the inpaciality of
judiciary, which is essential to the continuance of rule of law, if judges , under guise of
interpretation, provide their own preferred amendments to status which experience of their
operation has shown to have had consequence that member of the court before whom the matters
come considered to be injurious to public interest were the words are clear there is no obscurity ,
there is no ambiguity and the intention of the legislature is clearly conveyed , there is no scope
for the court to innovate or to take upon itself the task of amending or altering the statutory
provision . In that situation the judge should not proclaim that they are playing the role of
lawmaker for an exhibition of judicial velour .they have to remember that there is line , though
thin , which separate adjunction from legislation that line should not be crossed or erased . this
can be vouchsafed by an alert recognition of the necessity not to cross it and instinctive , as well
as trained reluctance to do so”

¶12 In the present case the issue which the petitioner is raising to struck down the exception 2 of
section375 makes the husband to come into the charge of rape and penalize him under the rape
therefore it becomes the legislative policy and legislature is the appropriate authority to decide
the matter , as in the above mention case the court clearly mentioned that the judges should not
cross the line by interfering into the legislative policy making process.

¶13 In another case of Dillip kumar Garg and others v. State of Uttar Pradesh6 in para 18 it is
stated that: The decision to treat all Junior Engineers, whether degree holders or diploma holders,
as equals for the purpose of promotion is a policy decision, and it is well-settled that this Court
should not ordinarily interfere in policy decisions unless there is clear violation of some
constitutional provision or the statute. We find no such violation in this case. Same in the present

5
AIR 2003 SC 1405
6
( 2009 ) 4 SCC 753

12
WRITTEN SUBMISSION ON THE BEHALF OF RESPONDENT
 NEW LAW COLLEGE, INTRA MOOT COURT COMPETITION 2019

case there is no violation of fundamental rights and hence court should not interfere in this matter
and this policy has to be decided by the legislature .

¶14 Doctrine of Separation of power in constitutional law provides for independence of three
organs of the government that is legislative executive and judiciary , judiciary should not
interfere in the public policy as it is not possible for judiciary to access the situation of the
society and it the work of legislative and in further the Law Commission of India has already
dealt with the issue of criminalizing marital rape. The Commission in its 172nd report clearly
indicated that criminalizing marital rape would amount to too much interference in the marital
relationship

In the case Saroj Rani v. Sudarshankumar it was held that ;

¶15 It is significant to note that unlike a decree of specific performance of contract, for
restitution of conjugal rights the sanction is provided by court where the disobedience to such a
decree is willful i.e. is deliberate, in spite of the opportunities and there are no other
impediments, might be enforced by attachment of property. So the only sanction is by attachment
of property against disobedience of a decree for restitution of conjugal rights where the
disobedience follows as a result of a willful conduct i.e. where conditions are there for a wife or
a husband to obey the decree for restitution of conjugal rights but disobeys the same in spite of
such conditions, then only financial sanction, provided he or she has properties to be attached, is
provided for. This is so as an inducement by the court in appropriate case when the court has
decreed restitution for conjugal rights and that the court can only decree if there is no just reason
for not passing decree for restitution of conjugal rights to offer inducement for the husband or
wife to live together in order to give them an opportunity to settle up the matter amicably. It
serves a social purpose as an aid to the prevention of break-up of marriage. It cannot be viewed
in the manner the learned single judge of Andhra Pradesh High Court has viewed it and we are
therefore unable to accept the position that Section 9 of the said Act is violative of Article 14 or
Article 21 of the Constitution if the purpose of the decree for restitution of conjugal rights in the
said Act is understood in its proper perspective and if the method of its execution in cases of
disobedience is kept in view.

13
WRITTEN SUBMISSION ON THE BEHALF OF RESPONDENT
 NEW LAW COLLEGE, INTRA MOOT COURT COMPETITION 2019

III. THAT IT IS NOT REQUIRED TO REPEAL THIS LAW

¶16 That in case of rape if there is the act of sexual intercourse it is without consent of the
women, however a marriage is solemnised fully by choice and enthusiastic agreement of both the
man and woman with full knowledge of friends and family and not by fraud or accident or force.
Having given the consent to marriage, then by definition wife (and also husband) are making
conscious decision to keep sexual relations with her husband and (or wife) as marriage without
sex is an anathema which has been stated in Vinita Saxena V. PankajPandit7 by supreme court.

¶17 That the laws have given a special status to a married women where in a married women is
liable to get maintenance, alimony, right to residence from her husband by ways of various
provisions that only a wife can use, special provisions only to be used by a wife such as 498-A
were enacted
for the protection of the wife and not all the categories of women so a rape law which covers rest
of the categories may not necessarily cover the wife if it brings about unfairness and does not
meet the ends of the justice.

¶18 The petitioner wishes to argue that the existing laws are very much capable of dealing with
the cases of sexual abuse of women and there is no need to either bring a fresh law to deal with it
nor there a requirement to withdraw the protection granted to husbands provided under Section
375
of the Indian Penal Code.
.
Remedies under Protection of women from domestic Violence Act

Section 3.

¶19 Definition of domestic violence.—For the purposes of this Act, any act, omission or
commission or conduct of the respondent shall constitute domestic violence in case it—

7
(2006) 3 SCC 778
14
WRITTEN SUBMISSION ON THE BEHALF OF RESPONDENT
 NEW LAW COLLEGE, INTRA MOOT COURT COMPETITION 2019

(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or
physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual
abuse, verbal and emotional abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any
other person related to her to meet any unlawful demand for any dowry or other property or
valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct
mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.
Explanation I.—For the purposes of this section,—

(i) “physical abuse” means any act or conduct which is of such a nature as to cause bodily pain,
harm, or danger to life, limb, or health or impair the health or development of the aggrieved
person and includes assault, criminal intimidation and criminal force;

(ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or
otherwise violates the dignity of woman;

¶20 Section 18 The Magistrate may, after giving the aggrieved person and the respondent an
opportunity of being heard and on being prima facie satisfied that domestic violence has taken
place or is likely to take place, pass a protection order in favor of the aggrieved person and
prohibit the respondent from—
(a) Committing any act of domestic violence;
(b) Aiding or abetting in the commission of acts of domestic violence;

¶21 Section 31. Penalty for breach of protection order by respondent.—

15
WRITTEN SUBMISSION ON THE BEHALF OF RESPONDENT
 NEW LAW COLLEGE, INTRA MOOT COURT COMPETITION 2019

(1) A breach of protection order, or of an interim protection order, by the respondent shall be an
offence under this Act and shall be punishable with imprisonment of either description for a term
which may extend to one year, or with fine which may extend to twenty thousand rupees, or with
both.

(2) The offence under sub-section (1) shall as far as practicable be tried by the Magistrate who
had passed the order, the breach of which has been alleged to have been caused by the accused.

(3) While framing charges under sub-section (1), the Magistrates may also frame charges under
section 498A of the Indian Penal Code (45 of 1860) or any other provision of that Code or the
Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts disclose the
commission of an offence under those provisions.

(a) That the PWDVA covers physical, emotional, sexual cruelty where in the recourse includes
protection orders, interim and final monetary relief and non-compliance of the same by the
husband attracts a jail term.

(b) That 498-A of the IPC cover all kinds of cruelty on wife including mental and physical
cruelty and has a maximum term of 3 years if convicted.

Remedies under IPC

¶22 498A. Husband or relative of husband of a woman subjecting her to cruelty.— Whoever,
being the husband or the relative of the husband of a woman, subjects such woman to cruelty
shall be punished with imprisonment for a term which may extend to three years and shall also
be liable to fine.
Explanation.—For the purpose of this section, “cruelty” means—

16
WRITTEN SUBMISSION ON THE BEHALF OF RESPONDENT
 NEW LAW COLLEGE, INTRA MOOT COURT COMPETITION 2019

(i)any willful conduct which is of such a nature as is likely to drive the woman to commit suicide
or to cause grave injury or danger to life, limb or health (whether mental or physical) of the
woman; or

(ii) harassment of the woman where such harassment is with a view to coercing her or any
person related to her to meet any unlawful demand for any property or valuable security or is on
account of failure by her or any person related to her to meet such demand.

(iii) That in case the wife and husband are living in separation due to matrimonial related
litigation, during the cooling off period after 1st motion of divorce petition or any similar reason
then the section 375 of the IPC can be invoked and upon conviction the term of imprisonment
would be no less than 7 years and may go up to life imprisonment.

(iv) That in case of an unnatural sexual act (carnal intercourse against the order of nature) with
the wife by the husband, section 377 of the IPC widely covers it and the convicted person shall
be punished with term[imprisonment for life], or with imprisonment of either description for
a term which may extend to ten years, and shall also be liable to fine
.
Section 377. Unnatural offences.—whoever voluntarily has carnal intercourse against the order
of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or
with imprisonment of either description for a term which may extend to ten years, and shall also
be liable to fine. Explanation.—Penetration is sufficient to constitute the carnal intercourse
necessary to the offence described in this section.

17
WRITTEN SUBMISSION ON THE BEHALF OF RESPONDENT
 NEW LAW COLLEGE, INTRA MOOT COURT COMPETITION 2019

IV. THAT MAKING IT PUNISHABLE LEADS TO DISINTEGRATION OF

MARRIAGE

¶23 In case of X' vs. Hospital 'Z8' the court held that;

Marriage is the sacred union, legally permissible, of two healthy bodies of opposite sexes. It has
to be mental, psychological and physical union. When two souls thus unite, a new soul comes
into existence. That is how, the life goes on and on on this planet.

¶24 That before removing the protection granted to husbands, there is a need to look into the
issue as a whole. A person when gets married be it wife or a husband anywhere in the world
loses his/ her right to perform the sexual act with anyone other than the spouse in other words a
married man or a women can not have sex outside marriage even if it is with consent and
anybody indulging into the ground of divorce ,So when a person is getting married, he or she is
giving consent to the spouse to have sex and any such sexual act can not be termed as Rape. If
there is a physical harm to either of the parties then it may be called sexual assault for which
there are laws already in place..

¶25 There are two corresponding rights involved in the case. On the one hand there is right to say
no to a sexual intercourse to the spouse and on the other hand there is a right to have a conjugal
relationship between the spouses. The two rights have to go hand in hand so that a happy marital
relationship may sustain during the lifetime of the spouses. Accordingly for a happy married life,
there has to be an understanding between the husband and a wife and if there is a breach of
understanding, legal recourse should be available to the spouses but in no circumstances a
husband should be branded a “Rapist”. That a mere comparison between the marriages
solemnized in Indian society and western societies makes it clear that in Indian society marriage
is considered to be a sacred relationship with aim to procreate and lead a happy married life. The
marriages in the western world are considered to be a contract between the husband and wife.
¶26 Accordingly, the concept of “Marital Rape” can not apply in Indian context. And if there is
an abuse of sexual nature, Indian laws have already provided a remedy to deal with it.

8
(1998) 8 SCC 296
18
WRITTEN SUBMISSION ON THE BEHALF OF RESPONDENT
 NEW LAW COLLEGE, INTRA MOOT COURT COMPETITION 2019

¶27 In same case Mr.X v. Hospital z 9Mental and physical health is of prime importance in a
marriage, as one of the objects of the marriage is the procreation of equally health children. That
is why, in every system of matrimonial law, it has been provided that if a person was found to be
suffering from any, including venereal disease, in a communicable form, it will be open to the
other partner in the marriage to seek divorce

¶28 Ms. Akali, with whom the marriage of the appellant was settled, was saved in time by the
disclosure of the vital information that the appellant was HIV(+). The disease which is
communicable would have been positively communicated to her immediately on the
consummation of marriage. As a human being, Ms. Akali must also enjoy, as she, obviously, is
entitled to, all the Human Rights available to any other human being. This is apart from, and, in
addition to, the Fundamental Rights available to her under Article 21, which, as we have seen,
guarantees "Right to Life" to every citizen of this country. This right would positively include
the right to be told that a person, with whom she was proposed to be married, was the victim of a
deadly disease, which was sexually communicable. Since "Right to Life" includes right to lead a
healthy life so as to enjoy all faculties of the human body in their prime condition, the
respondents, by their disclosure that the appellant was HIV(+), cannot be said to have, in any
way, either violated the rule of confidentiality or the right of privacy. Moreover, where there is a
clash of two Fundamental Rights, as in the instant case, namely, the appellant's right to privacy
as part of right to life and Ms. Akali's right to lead a healthy life which is her Fundamental Right
under Article 21, the RIGHT which would advance the public morality or public interest, would
alone be enforced through the process of Court, for the reason that moral considerations cannot
be kept at bay and the Judges are not expected to sit as mute structures of clay, in the Hail,
known as Court Room, but have to be sensitive, "in the sense that they must keep their fingers
firmly upon the pulse of the accepted morality of the day

9
(1998) 8 SCC 296
19
WRITTEN SUBMISSION ON THE BEHALF OF RESPONDENT
 NEW LAW COLLEGE, INTRA MOOT COURT COMPETITION 2019

¶29 That It is true that many countries in the west have criminalized what they call Marital Rape
but this mere fact may not be enough to remove exception in the present act as:

(a) Most of those countries do not use the word “Rape” for the stigma attached and the taboo that
a man would carry even if he is accused once and the allegations not proved further.
(b)The countries around the world do not term “sex on the promise of marriage” as “Rape.

(c)That the amendment in a law which will impact the social fabric and the family system of the
country is not a number game and can not be dependent on how many countries have such laws,
and in case this is any basis then also there are far more number of countries in the world which
do not have martial rape as compared to the numbers of countries which have such laws (even if
it is with deterrents and checks and balances).

¶30 That the removal of protection given to husbands under Section 375 will result in a law
which will be of such nature that the chances of its misuse will be so high and the innocent
husbands shall be left with no remedy and would be subjected to cruelty on part of wives.

(a) That it’s a known fact that many laws and provisions in India are misused but that reason
may also lay in the fact that the act does not carry any checks and balance and any
stringent punishment for the misuser of the law but the gravity at which the matrimonial
laws in India such as 498-A, PWDVA, Rape laws are being misused has become a matter
of concern not only for the citizens of the country but also the judiciary has shown
concerns by laying down guidelines in ArneshkumarVs state of Bihar in 2014 and Rajesh
Sharma &OrsVs State of UP10in 2017. With the history of such grave misuse of
matrimonial laws that it curtails the basic fundamental right, the right to life and liberty of
not only the accused husband but also effects the entire family where in following a
marital discord, with only a testimony the husband and family members are put behind
bars (as much as 186000 arrests made in 2015 as per NCRB records) and pressurised for
huge sums for an out of court settlements. such laws have become a sword rather than a

10
AIR 2017 SC 3869

20
WRITTEN SUBMISSION ON THE BEHALF OF RESPONDENT
 NEW LAW COLLEGE, INTRA MOOT COURT COMPETITION 2019

shield and with further amendment by removing the exception in sec 375, this sword is
likely to become more disastrous.

(b)That looking at the NCRB suicide statistics as many as 62000 married men are committing
suicide every year (which is more than double the suicides by women) with domestic issues
comprising of martial issues being the single largest reason for male suicides in India, making
India as the suicide capital of the world. Many men and their family members have committed
suicides because of the stigma and the taboo of the tags attached right at the moment a person is
falsely accused of dowry harassment, rape or any such crime so any law which is capable of such
high misuse as also explained above in para 16 should not come into existence.

there are four arguments in support of marital rape exception

i. Allowing wife to complain about rape will destroy the family

ii. By definition, sex within marriage can never amount to rape
iii. That the criminalization of marital rape would violate the privacy of marriage
that is “allowing the state into the bedrooms”
iv. It would become a weapon of abuse in the hand of unscrupulous wives

¶31 Central government in his reply in Delhi high court filled an affidavit stating that marital
rape cannot be criminalized as it “may destabilize the institution of marriage apart from being an
easy tool for harassing the husband. 11

¶32 Minister HaribhaiChoudhary said that it cannot be considered as rape as the Indian situation
is different from foreign due to social custom, values , religious believesmindset of the society to
treat marriage as a sacrament etc.

11
In ingoing case RIT foundation v. Union of India
21
WRITTEN SUBMISSION ON THE BEHALF OF RESPONDENT
 NEW LAW COLLEGE, INTRA MOOT COURT COMPETITION 2019

PRAYER

IT IS HUMBLY SUBMITTED BEFORE THE HON’BLE SUPREME COURT OF INDIA

THAT IN THE LIGHTS OF THE ABOVE MENTIONED ISSUE RAISED,
ARGUMENTS ADVANCED, CASES AND AUTHORITIES CITED, THE PRTITIONER
HUMBLY PRAY BEFORE THE HON’BLE COURT:

1. That this Hon’ble court may dismissed the PIL with the heavy cost.

2. That this Hon’ble court may upheld the constitutional validityof Excep. 2 of Sec.375 of
IPC.

OR PASS ANY OTHER ORDER, DIRECTION, OR RELIEF THAT IT MAY DEEM FIT
IN THE INTERST OF JUSTICE, FAIRNESS, EQUITY AND GOOD CONSCIENCE.

FOR THIS ACT OF KINDNESS, THE PETITIONER SHALL DUTY BOUND FOREVER
PRAYS.

PLACE: SD/-

DATE: COUNSELS FOR THE RESPONDENT

22
WRITTEN SUBMISSION ON THE BEHALF OF RESPONDENT