PETITIONER

TEAM CODE – TC 15P
[B.M. SREENIVASAIAH MEMORIAL 7TH NATIONAL MOOT COURT

COMPETITION,
[NAME OF THE 2022]
MOOT COURT COMPETITION, YEAR]
BEFORE
Before
SUPREME COURT OF SINDHU DESH
[NAME OF THE FORUM]
FILED UNDER ARTICLE 136 OF CONSTITUTION OF SINDHU DESH

[PETITION / APPLICATION / CASE] NUMBER _______ / [YEAR]
IN THE MATTER BETWEEN :
FILED UNDER [PROVISION NUMBER] OF
[NAME OF THE STATUTE]
REPUBLIC
IN OF SINDHU
THE CASE DESH ………………………………….PETITIONER
CONCERNING [SUBJECT-MATTER OF THE CASE]
AND V.
SHRUTHYALAYA…………………………………………….RESPONDENTS
IN THE MATTER BETWEEN:
CLUBBED WITH
[NAME OF THE PETITIONER] [PETITIONER]
KARUNADU HARASSED HUSBANDS ASSOCIATION (KHHA)

……………………………………………………………PETITIONER
versus
. V
[NAME OF THE RESPONDENT] [RESPONDENT]
SHRUTHYALAYA……………………………………………….RESPONDENT
MEMORIAL for [PETITIONER / RESPONDENT]
MEMORIAL FOR PETITIONERS

PAGE | I
TABLE OF CONTENTS
INDEX OF AUTHORITIES..............................................................................................3
INDEX OF ABBREVIATIONS.......................................................................................13
STATEMENT OF JURISDICTION...............................................................................17
STATEMENT OF FACTS...............................................................................................18
ISSUES RAISED...............................................................................................................19
SUMMARY OF ARGUMENTS......................................................................................20
ARGUMENTS ADVANCED...........................................................................................22
ISSUE A: WHETHER THE SPECIAL LEAVE PETITION FILED UNDER ART.

136 OF THE CONSTITUTION OF SINDHU DESH IS PROPER AND/OR VALID
SINCE THE STATE IS UNDER AN OBLIGATION TO TREAT MEN AND
WOMEN EQUALLY?......................................................................................................22
I. The Petitioners Have the Locus Standi to approach This Court as Exceptional
Circumstances Exist.........................................................................................................22
II. Arguendo, if it is assumed the petition is not maintainable, this Hon’ble Court can
still hear the matter...........................................................................................................23
III. Substantial Question of Law is involved...............................................................23
IV. Scope of powers of this Hon’ble Court under Art. 136 of the Constitution of India
are broad...........................................................................................................................24
V. Grounds of rejection are not fulfilled....................................................................25
VI. Reliefs could be granted by this Hon’ble Court....................................................25
ISSUE B(I): WHETHER EXCEPTION 2 OF § 375 OF THE SINDHU DESH PENAL

CODE IS VIOLATIVE OF ARTICLES 14, 19 AND 21 OF THE CONSTITUTION?
..............................................................................................................................................26
1
I. Exception 2 of § 375 does not violate Art. 14 of the Constitution............................26
II. Exception 2 of § 375 of Sindhu Desh Penal Code does not violate Art. 19 of the
Constitution......................................................................................................................28
III. Exception 2 of § 375 of Sindhu Desh Penal Code does not violate Art. 21 of the
Constitution......................................................................................................................31
ISSUE B(II): WHETHER FORCEFUL INTERCOURSE BY A MAN WITH HIS

WIFE AGAINST HER WILL AND/OR WITHOUT HER CONSENT CAN BE
CRIMINALIZED AS CONSTITUTING RAPE UNDER PROVISION OF § 375 OF
PENAL CODE?..................................................................................................................34
I. Exception 2 rules out the practical and technical difficulties that would arise in such
legal proceedings..............................................................................................................34
II. Exception 2 rules out the practical and technical difficulties that would arise in
such legal proceedings.....................................................................................................35
III. Adequate legislations are there to deal with the offences of sexual abuse within
marriage...........................................................................................................................37
ISSUE C: WHETHER THE OFFENCE OF RAPE UNDER § 375 OF THE SINDHU

DESH PENAL CODE IS REQUIRED TO BE MADE GENDER NEUTRAL?.........38
I. § 375, if maintained in its present form, would violate fundamental right to

equality of men and LGBTQ+ people..............................................................................39
II. Mere possibility of exploitation of a gender-neutral law against women cannot be

a ground to retain the law in its present form..................................................................41
III. Position of Gender-neutral case laws in different Jurisdictions............................42
PRAYER FOR RELIEF...................................................................................................44
2
INDEX OF AUTHORITIES
CASES
A v. B, 1984 SCC OnLine Guj 8 (India).................................................................................39
A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22 (India)........................................................39
A.V. Papayya Sastry v. Government of Andhra Pradesh, AIR 2007 SC 1546........................25
Ajay Goswami v. Union of India, (2007) 1 SCC 143 (India)..................................................31
Allistair Patrick Brooker v. The Police, [2007] 3 N.Z.L.R. 91 (SC) (N.Z.)............................31
Alok Kumar v. State, 2010 SCC OnLine Del 2645 (India).....................................................38
Amar Lal Arora v. Shashi Bala, 2011 SCC OnLine Del 2923 (India)....................................39
Anil Yashwant Karande v. Mangal Anil Karande, 2015 SCC OnLine Bom 6257 (India)......34
Arjun Singh v. State of Himachal Pradesh, (2009) 4 SCC 18 (India).....................................36
Arnesh Kumar v. State of Bihar, (2014) 8 SCC 469 (India)....................................................35
Ashutosh Gupta v. State of Rajasthan, (2002) 4 SCC 34........................................................27
Bachan Singh v. State of Punjab, (1980) 2 SCC 84 (India).....................................................32
Baggett v. Bullitt, 377 U.S. 360 (1964)...................................................................................31
Bajrang Gangadhar Revdekar v. Pooja Bajrang Revdekar, 2009 SCC OnLine Bom 1249
…...33
Baldev Singh v. Surinder Mohan Sharma, (2003) 1 SCC 34 (India).......................................33
Bhagirathabai v. Bapurao Devrao, 1991 SCC OnLine Bom 131 (India)................................34
Bharat Shantilal Shah v. The State of Maharashtra, (2008) 13 SCC 5 (India)........................31
Budhan v. State of Bihar, AIR 1955 SC 191 (India)...............................................................28
3
Chandmal v. State of Rajasthan, (1976) 1 SCC 621 (India)....................................................38
Cheriya Varkey v. Ouseph Thresia, 1955 SCC OnLine Ker 131 (India)................................28
D. Sivadasan v. Santha, 2017 SCC OnLine Ker 9084 (India).................................................30
Dayabhai Chhaganbhai Thakker v. State of Gujarat, (1964) 7 SCR 361 (India)....................37
Devidas Ramachandra Tuljapurkar v. State of Maharashtra, (2015) 6 SCC 1 (India)............30
Dhirendra Pandua v. State of Orissa, (2008) 17 SCC 311.......................................................28
Dinesh v. State of Rajasthan, (2006) 3 SCC 771 (India).........................................................37
Dipak Bose v. State of West Bengal, (1973) 4 SCC 43 (India)...............................................35
Divisional Manager A.P.S.R.T.C v. P. Lakshmoji Rao, AIR 2004 SC 1503..........................27
Dr. Dwaraka Bal v. Prof. Nainan Mathews, 1953 SCC OnLine Mad 31 (India)....................33
Dr. Himanshu Sharma v. State of J&K, 2018 SCC OnLine J&K 480 (India).........................30
Durga Shankar v. Raghu Raj, AIR 1954 SC 520.....................................................................23
Duryodhan Rout v. State of Odisha, (2015) 2 SCC 783 (India)..............................................38
Farooq Ahmad Bhat v. State of J. & K., 2018 SCC OnLine J&K 609 (India)........................30
Francis Coralie Mullin v. Adm'r Union Territory of Delhi, (1981) 1 SCC 608 (India)..........32
G. v. Germany, [1984] E.H.R.R. 6...........................................................................................31
Ganga Kumar v. State of Bihar, AIR 2005 SC 3123...............................................................26
Ganga Ram v. Union of India, (1970) 1 SCC 377 (India).......................................................29
Gauri Shankar v. Union of India, (1994) 6 SCC 349 (India)...................................................28
Gay News v. United Kingdom, [1983] E.H.R.R. 5..................................................................31
Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148 (India).............................................32
4
Grayned v. City of Rockford, 408 U.S. 104 (1972).................................................................31
Gurbax Singh v. Harminder Kaur, (2011) 11 SCC 198 (India)...............................................39
Guru Prasad Chattopadhyay v. State of West Bengal, 2017 SCC OnLine Cal 16210 (India) 40
Harakchband v. Union of India, (1970) 3 SCC 845 (India).....................................................28
Hashman v. United Kingdom, [1999] E.C.H.R. 13.................................................................31
Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 165 (India).......................39
Husseinkhan Sardarkhan v. Gulab Khatum, 1911 SCC OnLine Bom 27 (India)....................34
Inder Singh v. State (Delhi Administration), (1978) 4 SCC 161 (India).................................37
Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755 (India).....................................................28
Jagannath Muduli v. Nirupama Behera, 2008 SCC OnLine Ori 29 (India).............................33
Jaharlal Das v. State of Orissa, (1991) 3 SCC 27 (India)........................................................38
Jalan Trading Co. v. Mill Mazdoor Sabha, (1967) 1 SCR 15 (India)......................................29
Jean-Paul Labaye v. The Queen, 2005 SCC OnLine Can SC 80 (Can.).................................32
Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676 (India)......................................33
Juveria Abdul Majid Patni v. Atif Iqbal Mansoori, (2014) 10 SCC 736 (India).....................39
K. Srinivas Rao v. D. A. Deepa, (2013) 5 SCC 226 (India)....................................................39
K.M. Nanavati v. State of Bombay, AIR 1961 SC 112...........................................................27
K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1............................................................34
K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 (India)................................................32
KA Abbas v. Union of India, A.I.R. 1973 S.C. 123 (India)....................................................31
Kartar Singh v. State of Punjab, (1994) 3 SCC 569 (India).....................................................31
5
Kharak Singh v. State of Uttar Pradesh, (1964) 1 SCR 332 (India)........................................32
Kharak Singh v. State of Uttar Pradesh, (1978) 1 SCC 248 : A.I.R. 1978 S.C. 597 (India). . .30
Krishna v. Union of India, 2010 SCC OnLine Del 3589 (India).............................................34
Kunhayammed v. State of Kerala, AIR 2000 SC 2587...........................................................26
Laxmi Khandsari v. State of Uttar Pradesh, (1981) 2 SCC 600..............................................27
Lily Thomas v. Union of India, (2000) 6 SCC 224 (India).....................................................28
Loving v. Virginia, 388 U.S. 1 (1967).....................................................................................30
Man Mohan Vaid v. Meena Kumari, 2003 SCC OnLine Del 496 (India); Bhagwan Sakharam
Said v. State of Maharashtra, 2000 SCC OnLine Bom 237 (India).....................................39
Maneka Gandhi v. Union of India, (1978) 1 SCC 248............................................................32
Meera Santosh Pal v. Union of India, (2017) 3 SCC 462........................................................32
Miten v. Union of India, 2008 SCC OnLine Bom 329 (India)................................................30
Mithailal v. State of Maharashtra, 1993 SCC OnLine Bom 171 (India).................................34
Moti Lal v. State of Madhya Pradesh, (2008) 11 SCC 20 (India)...........................................37
Mr. X v. Hospital Z, (1998) 8 SCC 296 (India).......................................................................33
Musser v. Utah, 333 US 95, 97 (1948)....................................................................................31
N. Suriyakala v. A. Mohandoss, (2007) 9 SCC 196................................................................25
Naresh Kumar v. Union of India, (2004) 4 SCC 540..............................................................28
Naresh Kumar v. Union of India, (2004) 4 SCC 540 (India)...................................................29
Narpat Singh v. Jaipur Development Authority, AIR 2002 SC 2036......................................23
National Legal Services Authority v. Union of India, AIR 2014 SC 1863.............................42
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 (India).......................................31, 42
6
Nazir Mohammad v. J. Kamala, 2020 SCC Online SC 676....................................................24
Nimeshbhai Bharatbhai Desai v. State of Gujarat, 2018 SCC OnLine Guj 732 (India)..........39
North Delhi Mun. Corp. v. Rajinder Sharma, 2014 SCC OnLine Del 4937 (India)...............31
Padala Vera Reddy v. State of Andhra Pradesh, 1991 SCC (Cri) 407 (India).........................37
Panchanan Misra v. Digambar Mishra, AIR 2005 SC 1299....................................................25
Pinakin Mahipatray Rawal v. State of Gujarat, (2013) 10 SCC 48 (India).............................30
Pritam Singh v. State, 1950 AIR 169.......................................................................................23
Prosecutor v. Akayesu, ICTR-96-4..........................................................................................43
Punjab State Electricity Board v. Darbbara Singh, AIR 2006 SC 387....................................26
R Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632 (India).............................................32
R v. Ismail, [2005] All ER 216................................................................................................44
Radhu v. State of Madhya Pradesh, (2007) 12 SCC 57 (India)...............................................35
Raju Narayana Swamy v. Beena, 2017 SCC OnLine Ker 195 (India)....................................39
Rameshbhai Chanubhai Rathod v. State of Gujarat, (2009) 5 SCC 740 (India)......................38
Rameshwar v. State of Haryana, 1983 SCC OnLine P&H 873 (India)...................................39
Ramlila Maidan Incident v. Union of India, (2003) 4 SCC 399 (India)..................................31
Rita Nijhawan v. Balkishan Nijhawan, 1973 SCC OnLine Del 52 (India).............................34
Sanjay Kumar v. State of Himachal Pradesh, 2015 SCC OnLine HP 3008 (India)................35
Santosh Kumar v. State of Madhya Pradesh, (2006) 10 SCC 595 (India)...............................37
Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4 SCC 90 (India)...................................30, 34
Sarwar Merwan Yezdia v. Merwan Rashid Yezdiar, 1950 SCC OnLine Bom 50 (India)......28
7
Satwant Singh Sawhney v. D. Ramarathnam, (1967) 3 SCR 525 (India)...............................32
Saurabh Chaudri v. Union of India, (2003) 11 SCC 146 (India).............................................29
Shabnam Parveen v. State of West Bengal, 2017 SCC OnLine Cal 16119 (India).................40
Shafin Jahan v. Asokan K.M, (2018) 16 SCC 408 (India)......................................................34
Shalini v. Kishor, (2015) 11 SCC 718 (India).........................................................................39
Sharda v. Dharampal, (2003) 4 SCC 493 (India).....................................................................32
Shashank Shekhar Mishra v. Ajay Gupta, 2011 SCC OnLine Del 3741 (India).....................33
Shekara v. State of Karnataka, (2009) 14 SCC 76 (India).......................................................36
Shivshankar v. State of Karntaka, 2018 SCC OnLine SC 3106 (India)..................................38
Shobha Rani v. Madhukar Reddi, (1988) 1 SCC 105 (India)..................................................39
Shreya Singhal v. Union of India, (2015) 5 SCC 1 (India)......................................................31
Sir Chunilal Mehta & Sons Ltd. v. Century Spinning & Mfg. Co. Ltd., AIR 1962 SC 1314. 24
Siraj Mohmedkhan Janmohamad Khan v. Hafizunnisa Yasinkhan, (1981) 4 SCC 250

……...34
Skinner v. Oklahoma, 316 U.S. 535 (1942).............................................................................30
Social Action Forum for Manav Adhikar v. Union of India, (2018) 10 SCC 443..................43
State of Bombay v. Narasu Appa Mal, A.I.R. 1952 Bom. 84 (India)......................................30
State of Haryana v. Jai Singh, (2003) 9 SCC 114....................................................................27
State of Jammu and Kashmir v. Triloki Nath Khosa, (1974) 1 SCR 19 (India)......................29
State of Madhya Pradesh v. Munna Choubey, (2005) 2 SCC 710 (India)...............................37
State of Punjab v. Balkaran Singh, (2006) 12 SCC 709 (India)..............................................28
State of Rajasthan v. Vijairam, 1967 SCC OnLine Raj 49 (India)..........................................39
8
State of Uttar Pradesh v. Ram Gopal Shukla, (1981) 3 SCC 1................................................28
Steel v. United Kingdom, [1998] E.C.H.R. 95........................................................................31
Subramaniam Swamy v. C.B.I., (2014) 8 SCC 682.................................................................27
Subramanian Swamy v. Union of India, (2016) 7 SCC 221 (India)........................................30
Sujit Biswas v. State of Assam, (2013) 12 SCC 406 (India)...................................................37
Sunday Times v. United Kingdom, [1979] E.H.R.R. 2...........................................................31
Suresh Chandra v. State of Uttar Pradesh, AIR 2005 SC 3120...............................................26
Suresh Nathmal Rathi v. State of Maharashtra, 1991 SCC OnLine Bom 236 (India).............34
Sushil Kumar Sharma v. Union of India & Ors, AIR 2005 SC 3100......................................43
T.M.A. Pai Found. v. State of Karnataka, (2002) 8 SCC 481 (India)......................................28
T.V. Vatheeswaran v. State of Tamil Nadu, (1983) 2 SCC 68 (India)....................................32
Tarakant Singh v. State of Bihar, (2012) 11 SCC 766 (India).................................................39
The Ass'n of Traders v. Union of India, 2015 SCC OnLine Bom 4811 (India)......................31
Tonasa Bruno v. State of Uttar Pradesh, (2015) 7 SCC 178 (India)........................................37
Uday v. State of Karnataka, (2003) 4 SCC 46 (India).............................................................38
Union of India v. Nisha Priya Bhatia, 2019 SCC OnLine Del 6473 (India)...........................31
Union of India v. SC Bagari, (1999) 3 SCC 709 (India).........................................................28
Uttar Pradesh Power Corp. Ltd. v. Ayodhya Prasad Mishra, (2008) 10 SCC 139 (India)......28
Vennangot Anuradha Samir v. Vennangot Mohandas Samir, (2015) 16 SCC 596 (India).....33
Vijay v. State of Madhya Pradesh, (2010) 8 SCC 191 (India).................................................37
Villianur Iyarkkai Padukappu Maiyam v. Union of India, (2009) 7 SCC 561........................24
9
Wahid Khan v. State of Madhya Pradesh, (2010) 2 SCC 9 (India).........................................37
Western Uttar Pradesh Electric Power and Supply Corp. Ltd. v. State of Uttar Pradesh, (1969)
1 SCC 817 (India)................................................................................................................28
Winters v. People of State of New York, 333 U.S. 507 (1948)...............................................31
Zahira Habibullah Sheikh v. State of Gujarat, AIR 2004 SC 3467.........................................25
Zuber Ahmed v. Union of India, 2015 SCC OnLine P&H 8826 (India).................................31
STATUTES
Crimes and Criminal Procedure of 2011, 18 U.S.C. §§ 2241-2248........................................44
Criminal Justice and Public Order Act, 1994 § 142................................................................44
Protection of Children from Sexual Offences” (POSCO) ACT, 2012....................................42
The Indian Penal Code, 1860...................................................................................................29
The Protection of Woman from Domestic Violence Act, 2005 § 3.........................................39
CONSTITUTIONAL PROVISIONS
India Const.........................................................................................................................27, 30
JOURNALS
Flavia Agnes, Conjugality, Property, Morality and Maintenance, 44 Econ. & Pol. Wkly. 58,
60 (2009)..............................................................................................................................30
John N. Edwards, Sexual Behavior in and out of Marriage : An Assessment of Correlates, 38

J. Marr. & FAm., 73, 76 (1976)...........................................................................................33
Richard H. Dana, Equality in Sexual Behavior : Impact on Man-Woman Relationships, 15 J.

Thought 9, 18 (1980)...........................................................................................................32
Surendra Chaher, Outraging the Modesty of a Woman : Inter-Spousal Perspective, 32 J. India

L. Inst. 527, 535 (1990)........................................................................................................39
BOOKS
10
Barnard A. Raum, Rape Trauma Syndrome as Circumstantial Evidence of Rape, 11 J. Psytr'y
& Law. 203, 213 (1983).......................................................................................................37
Bryan A. Garner, Black's Law Dictionary 343 (10th ed. 2014)...............................................34
C.K. Parikh, Forensic Medicine & Toxicology 433 (6th ed. 1980).........................................37
Dr. Subhash C. Kashyap, Constitution Law of India 467 (2008)............................................29
Dr. V. Kesava Rao, Law of Evidence 5134 (18th ed. 2008)...................................................38
Elizabeth A. Martin, Oxford Dictionary of Law 105 (5th ed. 2002).......................................34
Justice Sujata Manohar, Constitutional Law of India 75 (3rd ed. 2010).................................29
Mangal Anil Karande v. Annie Varghese, 2008 SCC OnLine Bom 461 (India)....................34
Modi, Medical Jurisprudence and Toxicology 495 (22nd ed. 2010).......................................36
P. Ramanatha Aiyar, The Major Law Lexicon 366 (4th ed. 2001)..........................................34
P.S.A. Pillai, Criminal Law 895 (12th ed. 2014).....................................................................39
Prof. Ian Dennis, The Law of Evidence 437, 487 (3rd ed. 2007)............................................37
R.A. Nelson, Indian Penal Code 3846 (10th ed. 2008)............................................................39
Ratanlal & Dhirajlal, The Law of Evidence 1424 (23rd ed. 2010)..........................................37
Sharron Hinchliff, Intimacy, Commitment & Adaptation : Sexual relationships within long-
term marriages 596, 600 (2004)...........................................................................................33
Sudipto Sarkar & V.R. Manohar, Law of Evidence 2224 (17th ed. 2010)..............................37
INTERNET SOURCES
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..................................................................................................................37
Aneesha Mathur, Bill to make sexual crimes gender neutral introduced in Parliament, INDIA
11
TODAY (July 13, 2019, 23:44), https://www.indiatoday.in/india/story/bill-to-make-sexual-
crimes-gender-neutral-introduced-in-parliament-1568504-2019-07-13 (last visited June 21,
2022)....................................................................................................................................42
Center for Civil Society, https://ccs.in/ (last visited June 22, 2022)........................................41
Judgement deciding second appeal without formulation of substantial question of law not
valid, (August 28, 2020), https://www.scconline.com/blog/post/tag/substantial-question-of
law/#:~:text=To%20be%20%E2%80%9Csubstantial%E2%80%9D%2C%20a,it%2C%20if
%20answered%20either%20way.........................................................................................25
Law Commission of India Report No. 172, Review of Rape Laws, (June 28, 2022, 03:43
AM), http://www.lawcommissionofindia.nic.in/rapelaws.htm............................................29
Law Commission of India Report No. 172, The Indian Penal Code, (June 28, 2022, 05:45
AM), http://lawcommissionofindia.nic.in/1-50/Report42.pdf.............................................29
Maitreyee Gaikwad, Sexual Abuse of Males: Shrouded in The Shadows, GO NEWS,

gonewsindia.com/latest-news/health/sexual-abuse-of-males-shrouded-in-the-shadows-553
(last visited June 20, 2022)..................................................................................................41
Rituparna Chatterjee, The mindset is that boys are not raped: India ends silence on male sex
abuse, THE GUARDIAN (May 23, 2018), https://www.theguardian.com/global-
development/2018/may/23/indian-study-male-sexual-abuse-film-maker-insia-dariwala (last
visited June 22, 2022)..........................................................................................................41
Submission to I.C.J. Panel of Eminent Jurists on Terrorism, Counterterrorism and Human

Rights, (June 20, 2022, 6:43 PM), https:
//www.art.19.org/data/files/pdfs/analysis/terrorism-submission-to-icj-panel.pdf...............31
Substantial Question of Law & Second Appeal Jurisdiction: SC Summarizes Principles

Relating to § 100 CPC, (28 Aug 2020 9:01 AM), https://www.livelaw.in/top-stories/sc-
summarizes-principles-relating-to-§-100-cpc-162068.........................................................25
INTERNATIONAL TREATIES
G.A. Res. 217 (III) A, Universal Declaration of Human Rights, art. 16, (Dec. 10, 1948)......33
12
International Covenant on Civil and Political Rights art. 23, Dec. 16, 1966, 999 U.N.T.S
….33
INDEX OF ABBREVIATIONS................................................................................................
ABBREVIATIONS FULL-FORM
& and
§ Section
¶ Paragraph
A.I.R. All India Reporter
A.P. Andhra Pradesh
All E.R. All England Report
anr. Another
Acad. Academy
Adm'r Administrator
Art. Article
Ass'n Association
Auth. Authority
Bom. Bombay
Cal. Calcutta
Calif. California
Cent. Central
Co. Company
13
Comm'n. Commission
Const. Constitution
Constr. Construction
Corp. Corporation
Del. Delhi
Dev. Development
Dir't Directorate
E.C.H.R. European Commission of Human Rights
E.H.R.R. European Human Right Report
Educ. Education
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
ICESC International Covenant on Economic, Social and Cultural Rights
Inst. Institution
Int'l International
IPC Indian Penal Code

14
J. & K. Jammu and Kashmir
Kar. Karnataka
L.I.C. Life Insurance Corporation
Ltd. Limited
M.P. Madhya Pradesh
Mad. Madras
Mun. Municipal
N.C.T. National Capital Territory
N.G.O. Non-Governmental Organisation
NHFS National Health and Family Survey
No. Number
Ors. Others
P.& H. Punjab and Haryana
P.C. Privy Council
Para Paragraph
PIL Public Interest Litigation
Pmbl. Preamble
Pub. Public
Pvt. Private
P.W.D.V.A. Protection of Women from Domestic Violence Act

15
Q.B.D. Queen's Bench Division
Raj. Rajasthan
Rev. Review
S.C. Supreme Court
S.C.C. Supreme Court Cases
S.C.R. Supreme Court Reporter
Supp. Supplementary
TRAI Telecom Regulatory Authority of India
U.K. United Kingdom
U.K.H.L. United Kingdom House of Lords
U.S. United States
UDHR Universal Declaration of Human Rights
U.N.T.S. United Nations Treaty Series
v. Versus
viz. Namely
16
STATEMENT OF JURISDICTION
In the present appeal under SPECIAL LEAVE PETITION of Article 136 of the Sindhu Desh
Constitution concerning the matter of Marital Rape, the Petitioner humbly submits to the
jurisdiction of this Hon’ble Tribunal.
The present memorandum sets forth the facts, contentions, and arguments in the
present case.
17
STATEMENT OF FACTS
The Parties
Igor and Laila are a couple living in Karunadu State and both are married for 2 months now.
Karunadu Harassed Husbands Association (“KHHA”) represents men and grandparents who
are not given access to grandchildren in custody cases and provides legal assistance to men in
false criminal cases. Shruthyalaya is a Non-Governmental Organization that works for urban
women who are facing any sort of abuse.
The Issue
The marriage between Igor and Laila was yet to be consummated after 2 months of marriage.
On October 14, 2021, after getting themselves intoxicated at a party, Igor expressed his wish
to consummate the marriage but Laila in her intoxicated state was unable to communicate
properly. The next day upon waking up from sleep, Laila surmises that the previous night,
Igor had sexual intercourse with her. She files a police complaint with the Women’s Police
Station at Vitosha and a First Information Report (“FIR”) under Sections 350, 351, 354, 375
r/w 376 of the Sindhu Desh Penal Code of 1860 (“Penal Code”).
Thereafter the Magistrate altered the charges and removed the reference to the commission of
offences under § 375 r/w § 376 of the Penal Code on the ground of Exception 2 of § 375.
Feeling aggrieved, Laila filed a Writ Petition under Art. 226 and arrayed the State of
Karunadu and Republic of Sindhu Desh along with Igor as the Respondents challenging the
vires of Exception 2 of § 375 of the Sindhu Desh Penal Code.
The Conflict
The Hon’ble High Court held that Exception 2 to § 375 of the Sindhu Desh Penal Code is
ultra-vires the Constitution of Sindhu Desh and directed the Republic of Sindhu Desh to
amend the law relating to ‘Rape’ by making it gender-neutral in light of § 377. Subsequently,
the KHHA filed several representations to the government against the High Court order of
criminalizing Exception 2 and Shruthyalaya were against making § 375 gender-neutral.
Thereafter, the Republic of Sindhu Desh filed a Special Leave Petition before the Supreme
Court of Sindhu Desh against the judgment of the High Court of Karunadu.
18
ISSUES RAISED
ISSUE A:
WHETHER THE SPECIAL LEAVE PETITION FILED UNDER ARTICLE 136 OF THE
CONSTITUTION OF SINDHU DESH IS PROPER AND/OR VALID SINCE THE STATE
IS UNDER AN OBLIGATION TO TREAT MEN AND WOMEN EQUALLY?
ISSUE B(I):
WHETHER EXPLANATION 2 OF § 375 OF THE SINDHU DESH PENAL CODE IS

VIOLATIVE OF ARTICLE 14, 19 AND 21 OF THE CONSTITUTION?
ISSUE B(II):
WHETHER FORCEFUL INTERCOURSE BY A MAN WITH HIS WIFE AGAINST HER

WILL AND/OR WITHOUT HER CONSENT CAN BE CRIMINALIZED AS
CONSTITUTING ‘RAPE’ UNDER PROVISIONS OF § 375 OF THE PENAL CODE?
ISSUE C:
WHETHER THE OFFENCE OF RAPE UNDER § 375 OF THE SINDHU DESH PENAL
CODE IS REQUIRED TO BE MADE GENDER-NEUTRAL?
19
SUMMARY OF ARGUMENTS
ISSUE A: THE SPECIAL LEAVE PETITION FILED UNDER ARTICLE 136 OF THE
CONSTITUTION OF SINDHU DESH IS PROPER AND/OR VALID SINCE THE STATE IS UNDER
AN OBLIGATION TO TREAT MEN AND WOMEN EQUALLY.
It is humbly submitted before the Hon’ble SC of Sindhu Desh that the SLP is maintainable,
as the Petitioners have the Locus Standi to approach this Court as exceptional circumstances
exist. It is submitted that even if it is assumed the petition is not maintainable, this Hon’ble
Court can still hear the matter. Moreover, there is a substantial question of law involved. It is
further submitted that the scope of powers of this Court under Art. 136 are broad. And the
grounds of rejection are not fulfilled. Hence, it is contended that the Special Leave Petition is
Proper and valid.
ISSUE B(I): EXCEPTION 2 OF § 375 OF THE SINDHU DESH PENAL CODE IS NOT
VIOLATIVE OF ARTICLES 14, 19 AND 21 OF THE CONSTITUTION.
It is humbly submitted before the Hon’ble SC of Sindhu Desh that Explanation 2 of § 375 of
the Sindhu Desh Penal Code is not violative of Articles 14, 19 and 21 of the Constitution. It is
not violative of Art. 14 as the Article does not forbid reasonable classification for the purpose
of the legislation. Further, the Exception does not violate Art. 19 because it does not violate
the freedom of speech and expression of a married woman and imposes a reasonable
restriction. Moreover, it does not violate Art. 21 because it protects the right to privacy and
conjugal rights of the married couple secondly, adequate legislations exist under various
Penal Laws to deal with offences of sexual abuse within marriage.
ISSUE B(II): FORCEFUL INTERCOURSE BY A MAN WITH HIS WIFE AGAINST HER WILL
AND/OR WITHOUT HER CONSENT CANNOT BE CRIMINALIZED AS CONSTITUTING RAPE
UNDER PROVISION OF § 375 OF PENAL CODE.
It is humbly submitted before the Court that Exception 2 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 new legal terrorism where the mere accusation and
the statement of the wife would be equivalent to evidence and henceforth, sufficient for a
20
conviction of the husband. Circumstantial Evidence would not prove the alleged act of rape
within marriage beyond reasonable doubt and the practical and technical difficulties that
would arise in such legal proceedings. Moreover, in such cases near impossible on the part of
the husband to prove his innocence.
ISSUE C: WHETHER THE OFFENCE OF RAPE UNDER § 375 OF THE SINDHU DESH PENAL
CODE IS REQUIRED TO BE MADE GENDER-NEUTRAL?
It is submitted before the Court that Art. 375 Violates Right to Equality before law
guaranteed under Art. 14 It is apparent that there’s no particular law in India if a male rapes
another male or a female rapes a male. This shows that there is no room for adult male
victims or female perpetrators Furthermore, there is No protection for LGBTQ individuals
from sexual assault. Moreover, the mere possibility of exploitation of a gender-neutral law
against women cannot be a ground to retain the law in its present form. Gender-neutral laws
have been enacted and recognised in about seventy-seven nations around the world including
US and UK and those are held in high regard in our country.
21
ARGUMENTS ADVANCED
ISSUE A: WHETHER THE SPECIAL LEAVE PETITION FILED UNDER ART. 136
OF THE CONSTITUTION OF SINDHU DESH IS PROPER AND/OR VALID SINCE
THE STATE IS UNDER AN OBLIGATION TO TREAT MEN AND WOMEN
EQUALLY?
[¶1] It is humbly submitted before the Hon’ble SC of Sindhu Desh that the SLP is
maintainable, which is contended through the following points: (I) The Petitioners have
the Locus Standi to approach this Court as exceptional circumstances exist. (II)
Arguendo, if it is assumed the petition is not maintainable, this Hon’ble Court can still
hear the matter. (III) A substantial Question of law is involved. (IV) Scope of powers of
this Court under Art. 136 are broad. (V) Grounds of rejection are not fulfilled. (VI)
Reliefs could be granted by this Hon’ble Court.
I. The Petitioners Have the Locus Standi to approach This Court as Exceptional
Circumstances Exist.
[¶2] Art. 136 empowers the Supreme Court to grant in discretion Special leave to appeal
from any judgement, decree, determination, sentence or order in any cause or matter
passed or made by any Court or tribunal in the territory of India. If exceptional
circumstances exist, that substantial and grave injustice has been done and that the case in
question presents features of sufficient gravity to warrant a review of the decision
appealed against, Special Leave will not be granted 1. As the present case does fulfil all
these conditions, the Court should interfere with the decision of the High Court.
[¶3] It is humbly submitted that powers under Art. 136 can be exercised against any kind of
judgement or order which is causing injustice to any party, and to serve the need, the
power under Art. 136 is unfettered.2
[¶4] It is submitted that Art. 136 is an overriding power where the Court may generally step
in to impart justice to remedy injustice.3
1
Pritam Singh v. State, 1950 AIR 169.
2
Durga Shankar v. Raghu Raj, AIR 1954 SC 520.
3
Narpat Singh v. Jaipur Development Authority, AIR 2002 SC 2036.
22
II. Arguendo, if it is assumed the petition is not maintainable, this Hon’ble Court
can still hear the matter.
[¶5] For arguments, if it is assumed that the current petition is not maintainable, it is
humbly submitted that the width of the discretion of this Hon’ble Court may extend to a
situation where although the appeals are found not to be maintainable, yet, the Supreme
Court may decide on the merit of the appeals.4
[¶6] Hence, it is humbly submitted to this Hon’ble Court that the situation requires
immediate intervention by this Hon’ble Court to avoid any further injustice as the
question involved is related to public good and maintenance of the moral fabric of
society.
III. A substantial Question of Law is involved.
[¶7] To be “substantial”, a question of law must be debatable, not previously settled by the
law of the land or any binding precedent and must have a material bearing on the decision
of the case and/or the rights of the parties before it, if answered either way.5
[¶8] In Sir Chunilal V. Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co., 6
the Constitutional Bench of the Supreme Court held, “The proper test for determining
whether a question of law raised in the case is substantial would, in our opinion, be
whether it is of general public importance or whether it directly and, substantially affects
the rights of the parties and if so whether it is either an open question in the sense that it is
not final, settled by this Court or by the Privy Council or by the Federal Court or is not
free from difficulty or calls for discussion of alternative views.
[¶9] The Court further held that if the question is settled by the highest Court or the general
principles to be applied in determining the question are well settled and there is a mere
question of applying those principles or that the plea raised is palpably absurd the
question would not be a substantial question of law. Since in the case on hand the
question involves a question of general public importance and has not been well settled
by this Court of law.”
[¶10] A substantial question of law will also arise in a contrary situation, where the legal
4
Villianur Iyarkkai Padukappu Maiyam v. Union of India, (2009) 7 SCC 561.
5
Nazir Mohammad v. J. Kamala, 2020 SCC Online SC 676.
6
Sir Chunilal Mehta & Sons Ltd. v. Century Spinning & Mfg. Co. Ltd., AIR 1962 SC 1314.
23
position is clear, either on account of express provisions of law or binding precedents, but
the Court below has decided the matter, either ignoring or acting contrary to such legal
principle. In the second type of case, the substantial question of law arises not because the
law is still debatable, but because the decision rendered on a material question violates
the settled position of law.7 It is submitted that in the present case on hand, the HC of
Karunadu has decided the case in ignorance of the previous precedents laid down by this
highest Court of law.
[¶11] An inference of fact from the recitals or contents of a document is a question of fact,
but the legal effect of the terms of a document is a question of law. The construction of a
document, involving the application of any principle of law, is also a question of law.
Therefore, when there is a misconstruction of a document or wrong application of a
principle of law in construing a document, it gives rise to a question of law.8 It is
submitted that the present case on hand, involves the interpretation of § 375 of IPC, thus
involving a substantial question of law.
[¶12] Thus, it is humbly submitted that though Art. 136 is conceived in the widest terms, the
practice of the Supreme Court is not to interfere on questions of fact except in exceptional
cases when the finding is such that it shocks the conscience of the Court.9
IV. Scope of powers of this Hon’ble Court under Art. 136 of the Constitution of
India is broad.
[¶13] The power has been held to be plenary, limitless 10, adjunctive and unassailable.11 The
Supreme Court can use the powers under Art. 136 to impart justice and remedy any
injustice.12 The Supreme Court with regard to the scope of Art. 136 held that it is a
residual power which enables the Supreme Court to interfere with the judgement or order
of any Court or tribunal in India at its discretion.
[¶14] In Ganga Kumar v. the State of Bihar,13 the Supreme Court has held that it is open to
7
Judgement deciding second appeal without formulation of substantial question of law not valid, (August 28,
2020),https://www.scconline.com/blog/post/tag/substantial-question-of law/#:~:text=To%20be
%20%E2%80%9Csubstantial%E2%80%9D%2C%20a,it%2C%20if%20answered%20either%20way.
8
Substantial Question of Law & Second Appeal Jurisdiction: SC Summarizes Principles Relating to § 100 CPC ,
(28 Aug 2020 9:01 AM), https://www.livelaw.in/top-stories/sc-summarizes-principles-relating-to-§-100-cpc-
162068.
9
Panchanan Misra v. Digambar Mishra, AIR 2005 SC 1299.
10
A.V. Papayya Sastry v. Government of Andhra Pradesh, AIR 2007 SC 1546.
11
Zahira Habibullah Sheikh v. State of Gujarat, AIR 2004 SC 3467.
12
N. Suriyakala v. A. Mohandoss, (2007) 9 SCC 196.
13
Ganga Kumar v. State of Bihar, AIR 2005 SC 3123.
24
the Supreme Court to interfere with the findings fact by the High Court if the High Court
has acted perversely or otherwise improperly. Hence, it is humbly submitted to this
Hon’ble Court to hear the instant matter because the High Court has been gravely wrong
in not exercising its inherent jurisdiction in the instant matter.
[¶15] It is humbly submitted that if special leave is granted and the same is restricted to a
particular question, the Court is not constrained in any manner to restrict itself to hearing
only those matters,14 insofar as an opportunity of being heard is given to the opposite
party also.15 Hence, it is submitted that this Hon’ble Court can dwell into all matters,
including the question of fact and decide this matter on merits to grant justice.
V. Grounds of rejection are not fulfilled.
[¶16] The limitation on the exercise of discretionary powers under Art. 136 of the
Constitution has been laid down by the Supreme Court itself. 16
In Kunhayammed and
Others v. State of Kerala and Another,17 it was held that a petition seeking grant of special
leave to appeal may be rejected for several reasons, some of which are as follows: (i) If
the Petition is barred by time. (ii) If the Petition is presented in a defective manner. (iii)
The Petitioner has no locus standi to file the petition. (iv) The conduct of the Petitioner
disentitling him to any indulgence by the Court. (v) The question raised by the Petitioner
for consideration by this Court is not fit for consideration or deserves being dealt with by
the Apex Court.
[¶17] In the instant case, it is obvious on a prima-facie level that the Petitioners have no
grounds on which the instant petition for special leave could be rejected. The questions
raised by the Petitioners involve substantial questions of law, as would be shown in the
subsequent submissions, and the same requires to be adjudicated by this Hon’ble Court.
VI. Reliefs could be granted by this Hon’ble Court.
[¶18] Under Art. 136, the Supreme Court can give whatever relief that might be necessary
and proper in the facts and circumstances. 18 The Supreme Court may even invoke its
14
Suresh Chandra v. State of Uttar Pradesh, AIR 2005 SC 3120.
15
Punjab State Electricity Board v. Darbbara Singh, AIR 2006 SC 387.
16
Kunhayammed v. State of Kerala, AIR 2000 SC 2587.
17
Id.
18
Divisional Manager A.P.S.R.T.C v. P. Lakshmoji Rao, AIR 2004 SC 1503.
25
power under Art. 142 for this purpose. 19 Hence, it is submitted that this Hon’ble Court
grants orders that could remedy the injustice that is being caused.
ISSUE B(I): WHETHER EXCEPTION 2 OF § 375 OF THE SINDHU DESH PENAL

CODE IS VIOLATIVE OF ARTICLES 14, 19 AND 21 OF THE CONSTITUTION?
[¶19] It is humbly submitted before the Hon’ble SC of Sindhu Desh that Explanation 2 of §
375 of the Sindhu Desh Penal Code is not violative of Articles 14, 19 and 21 of the
Constitution. It is not violative of Art. 1420 as the Article does not forbid reasonable
classification for the purpose of the legislation. Further, the Exception does not violate
Art. 19 because it does not violate the freedom of speech and expression of a married
woman and imposes a reasonable restriction. Moreover, it does not violate Art. 21
because it protects the right to privacy and conjugal rights of the married couple secondly,
adequate legislations exist under various Penal Laws to deal with offences of sexual
abuse within marriage.
[¶20] Hence it is submitted: (I) It does not violate Art. 14 of the Constitution. (II) It does not
violate Art. 19 of the Constitution. (III) It does not violate Art. 21 of the Constitution.
I. Exception 2 of § 375 does not violate Art. 14 of the Constitution.
[¶21] Exception 2 of § 375 of Sindhu Desh penal code does not violate Art. 14 21 of the
Constitution as the Article forbids class legislation but does not forbid reasonable
classification for the legislation.22 In order to pass the test of reasonableness, the
classification must be based on intelligible differentia 23 and the differentia must have a
reasonable nexus with the object sought to be achieved.24
[¶22] It is submitted that Exception 2 is not violative of Art. 14 because: (A) Exception 2
19
K.M. Nanavati v. State of Bombay, AIR 1961 SC 112.
20
India Const. art. 14.
21
Id.
22
Laxmi Khandsari v. State of Uttar Pradesh, (1981) 2 SCC 600; see also State of Haryana v. Jai Singh, (2003)
9 SCC 114; Welfare Ass'n v. Ranjit P. Gohil, (2003) 9 SCC 358; Ashutosh Gupta v. State of Rajasthan, (2002) 4
SCC 34; State of Uttar Pradesh v. Kamla Palace, (2000) 1 SCC 557; Subramaniam Swamy v. C.B.I., (2014) 8
SCC 682.
23
Naresh Kumar v. Union of India, (2004) 4 SCC 540; see also State of Uttar Pradesh v. Ram Gopal Shukla,
(1981) 3 SCC 1; Dhirendra Pandua v. State of Orissa, (2008) 17 SCC 311.
24
Budhan v. State of Bihar, AIR 1955 SC 191 (India); see also Harakchband v. Union of India, (1970) 3 SCC
845 (India); Union of India v. SC Bagari, (1999) 3 SCC 709 (India).
26
makes a classification based on intelligible differentia. (B) The differentia has a
reasonable nexus with the object.
A. Exception 2 makes a classification based on intelligible differentia.
[¶23] It is submitted that the intelligible differentia i.e., the basis of classification 25 must be
rational26 and based on some qualities or characteristics 27 which are to be found in all the
persons grouped together and not in others who are left out.28
[¶24] It is humbly contended that Exception 2 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.
[¶25] Further, it is submitted that a classification made between people on the basis of their
marital status is not arbitrary or discriminatory, 29 because, unlike unmarried people,
married people upon solemnization of their marriage have to discharge various legal
rights and obligations that flow out of the legally wedded marriage.30
[¶26] Moreover, the differentia in the aforesaid classification is the marital status, which is
an uncommon characteristic of the people in the two groups and no single person can fall
into both groups at the same time, a person above the legal age of marriage is either
married or is unmarried.
[¶27] Hence, it is submitted that Exception 2 which makes a classification based on marital
status is found on intelligible differentia.
B. The Differentia has a reasonable nexus with the object.
25
Uttar Pradesh Power Corp. Ltd. v. Ayodhya Prasad Mishra, (2008) 10 SCC 139 (India); see also T.M.A. Pai
Found. v. State of Karnataka, (2002) 8 SCC 481 (India).
26
John Vallamattom v. Union of India, (2003) 6 SCC 611 (India); Jagannath Prasad v. State of Uttar Pradesh,
(1962) 1 SCR 151 (India); Shaheb Mahboob v. Deputy Custodian, (1962) 2 SCR 371 (India).
27
Gauri Shankar v. Union of India, (1994) 6 SCC 349 (India); M Jagdish Vyas v. Union of India, (2010) 4 SCC
150 (India); see also State of Punjab v. Balkaran Singh, (2006) 12 SCC 709 (India).
28
Western Uttar Pradesh Electric Power and Supply Corp. Ltd. v. State of Uttar Pradesh, (1969) 1 SCC 817
(India); R.K. Garg v. Union of India, (1981) 4 SCC 675 (India).
29
Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755 (India).
30
Lily Thomas v. Union of India, (2000) 6 SCC 224 (India); see also Cheriya Varkey v. Ouseph Thresia, 1955
SCC OnLine Ker 131 (India); Sarwar Merwan Yezdia v. Merwan Rashid Yezdiar, 1950 SCC OnLine Bom 50
(India).
27
[¶28] It is submitted that classification is reasonable when the differentia, 31 i.e., the basis of
classification is logically32 related to the object of the law. 33 The reasonable nexus
between the differentia and the object of law should be determined in the light of the
purpose for the special treatment meted out to the differentiated group.34
[¶29] It is humbly contended that Exception 2 provides special treatment to married

individuals by keeping sexual activities within marriage outside the purview of rape. 35
The object sought to be achieved by the aforementioned classification is protecting the
sanctity of the institution of marriage36 by ruling out the possibility of false, fabricated
and motivated complaints of ‘rape’ by ‘wife’ against her ‘husband’ and the practical
procedural difficulties that may arise in a such a legal proceeding.37
[¶30] It is therefore submitted that the differentia has a reasonable nexus with the object of
preserving the sanctity of marriage because Exception 2 rules out the possibility of false
rape complaints within marriage and secondly, Exception 2 rules out the practical and
technical difficulties that would arise in such legal proceedings.
II. Exception 2 of § 375 of Sindhu Desh Penal Code does not violate Art. 19 of the
Constitution.
[¶31] Art. 1938 guarantees basic, valued, and natural rights inherent in the person. 39 In all
matters specified in Art. 19(1), the citizen has the right to liberty, subject to restrictions in
Art. 19(2) to (6).40 It is humbly submitted that Exception 2 to §375 does not violate Art.
19 because: (A) Exception 2 does not violate the freedom of speech and expression of a
married woman. (B) Exception 2 imposes a reasonable restriction.
31
Budhan v. State of Bihar, (1955) 1 SCR 1045 (India).
32
Ganga Ram v. Union of India, (1970) 1 SCC 377 (India); see also Jalan Trading Co. v. Mill Mazdoor Sabha,
(1967) 1 SCR 15 (India); State of Jammu and Kashmir v. Triloki Nath Khosa, (1974) 1 SCR 19 (India).
33
Dr. Subhash C. Kashyap, Constitution Law of India 467 (2008); see also Saurabh Chaudri v. Union of India,
(2003) 11 SCC 146 (India).
34
Justice Sujata Manohar, Constitutional Law of India 75 (3rd ed. 2010); see also Naresh Kumar v. Union of
India, (2004) 4 SCC 540 (India).
35
The Indian Penal Code, 1860 § 375.
36
Law Commission of India Report No. 172, Review of Rape Laws, (June 28, 2022, 03:43 AM),
http://www.lawcommissionofindia.nic.in/rapelaws.htm.
37
Law Commission of India Report No. 172, The Indian Penal Code, (June 28, 2022, 05:45 AM),
http://lawcommissionofindia.nic.in/1-50/Report42.pdf.
38
Supra note 20 art. 19.
39
Farooq Ahmad Bhat v. State of J. & K., 2018 SCC OnLine J&K 609 (India); see also Kharak Singh v. State of
Uttar Pradesh, (1978) 1 SCC 248 : A.I.R. 1978 S.C. 597 (India).
40
Devidas Ramachandra Tuljapurkar v. State of Maharashtra, (2015) 6 SCC 1 (India); see also Subramanian
Swamy v. Union of India, (2016) 7 SCC 221 (India).
28
A. Exception 2 does not violate the freedom of speech and expression of a married
woman.
[¶32] It is submitted before the Hon’ble Court that marriage is a sacred social institution 41
and a married couple must discharge rights and obligations 42 that flow out of it by
operation of law on the solemnization of marriage. 43 Moreover, marital relationship
means the legally protected marital interest of one spouse to another, 44 which includes
sexual relations45 and their exclusive enjoyment of them.46 Conjugal rights are not only
the creation of a statute but also flow out from the institution of marriage.47
[¶33] It is humbly contended that married individuals upon solemnization of marriage

expressly consent to the rights flowing out of the marriage which include. The marital
right to intercourse during such time as the ordinary relations created by the sacrosanct
contract of marriage exist between them.
[¶34] Further, it is submitted that 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.
Hence, it is submitted that Exception 2 to § 375 does not violate the freedom of speech
and expression of a married woman guaranteed under Art. 19(1)(a) of the Indian
Constitution.
B. Exception 2 imposes reasonable restrictions.
[¶35] The freedoms guaranteed by Art. 19(1)48 are not absolute and subject to reasonable
restrictions.49 It is humbly submitted that Exception 2 imposes a reasonable restriction on
the freedom of speech and expression because it is prescribed by law and is not vague.
41
Lily Thomas, supra note 31; see also State of Bombay v. Narasu Appa Mal, A.I.R. 1952 Bom. 84 (India);
Miten v. Union of India, 2008 SCC OnLine Bom 329 (India).
42
Indra Sarma, supra note 30; Skinner v. Oklahoma, 316 U.S. 535 (1942).
43
D. Sivadasan v. Santha, 2017 SCC OnLine Ker 9084 (India).
44
Dr. Himanshu Sharma v. State of J&K, 2018 SCC OnLine J&K 480 (India).
45
Loving v. Virginia, 388 U.S. 1 (1967).
46
Pinakin Mahipatray Rawal v. State of Gujarat, (2013) 10 SCC 48 (India).
47
Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4 SCC 90 (India); see also Flavia Agnes, Conjugality,
Property, Morality and Maintenance, 44 Econ. & Pol. Wkly. 58, 60 (2009).
48
Supra note 20.
49
Ramlila Maidan Incident v. Union of India, (2003) 4 SCC 399 (India); see also Ajay Goswami v. Union of
India, (2007) 1 SCC 143 (India).
29
[¶36] It is further submitted that for a restriction to be reasonable and legitimate, the
interference must be provided expressly by law.50 The law must not be vague51 and must
be accessible52 and formulated with sufficient precision to enable the citizen to regulate
his conduct in accordance with the law. 53 A person of ordinary intelligence should have a
reasonable opportunity to know what is prohibited in order to act accordingly, 54 and
enactment is void55 if its prohibitions are not clearly defined.56 Vagueness in law leads to
a ‘chilling effect’ on the freedom of speech and expression.57
[¶37] It is humbly contended that Exception 2 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 based on marital status that the sexual
activity within marriage has not been criminalized under § 375. Therefore, there is no
scope for uncertainty and vagueness.
[¶38] Further, in case of the absence of Exception II, there would be a restriction on the
husband's right to exercise his freedom of expression of indulging in a sexual activity 58
which must be equally protected. 59 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 when exercising his expression,
whether what he is doing is prohibited under law or not.
[¶39] Thus, the removal of Exception 2 and such restriction imposed will lead to a chilling
50
Toby Mendel, Restricting Freedom of Expression : Standards and Principles, (June 18, 2022, 6:44 PM),
http://www.law-democracy.org/wp-content/uploads/2010/07/10.03.Paper-on-Restrictions-on-FOE.pdf.a.
51
Submission to I.C.J. Panel of Eminent Jurists on Terrorism, Counterterrorism and Human Rights, (June 20,
2022, 6:43 PM), https : //www.art.19.org/data/files/pdfs/analysis/terrorism-submission-to-icj-panel.pdf.
52
Steel v. United Kingdom, [1998] E.C.H.R. 95; see also 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.).
53
Sunday Times v. United Kingdom, [1979] E.H.R.R. 2; see also Gay News v. United Kingdom, [1983]
E.H.R.R. 5; G. v. Germany, [1984] E.H.R.R. 6.
54
Kartar Singh v. State of Punjab, (1994) 3 SCC 569 (India); see also Bharat Shantilal Shah v. The State of
Maharashtra, (2008) 13 SCC 5 (India).
55
Musser v. Utah, 333 US 95, 97 (1948); see also Zuber Ahmed v. Union of India, 2015 SCC OnLine P&H
8826 (India); Winters v. People of State of New York, 333 U.S. 507 (1948).
56
The Ass'n of Traders v. Union of India, 2015 SCC OnLine Bom 4811 (India); see also North Delhi Mun.
Corp. v. Rajinder Sharma, 2014 SCC OnLine Del 4937 (India); Union of India v. Nisha Priya Bhatia, 2019 SCC
OnLine Del 6473 (India); KA Abbas v. Union of India, A.I.R. 1973 S.C. 123 (India).
57
Shreya Singhal v. Union of India, (2015) 5 SCC 1 (India); see also Navtej Singh Johar v. Union of India,
(2018) 10 SCC 1 (India); Baggett v. Bullitt, 377 U.S. 360 (1964); Grayned v. City of Rockford, 408 U.S. 104
(1972).
58
Navtej Singh, supra note 58; Jean-Paul Labaye v. The Queen, 2005 SCC OnLine Can SC 80 (Can.)
59
Richard H. Dana, Equality in Sexual Behavior : Impact on Man-Woman Relationships, 15 J. Thought 9, 18
(1980).
30
effect on the freedom of expression of the husband. Hence, it is submitted that the
restriction provided by Exception 2 is not vague and is prescribed by law.
III. Exception 2 of § 375 of Sindhu Desh Penal Code does not violate Art. 21 of the
Constitution.
[¶40] Art. 2160 guarantees to every person the fundamental right to life and personal liberty. 61
The expression ‘personal liberty’ in Art. 21 is of the widest amplitude 62 and it covers a
variety of rights which go to constitute the personal liberty of a person. 63 The right to
privacy is an inalienable fundamental right,64 implicit in the right to life and liberty
guaranteed under Art. 21.65
[¶41] It is submitted that Exception 2 does not violate Art. 21 because (A) Exception 2
protects the right to privacy and conjugal rights of the married couple. (B) Adequate
legislations are there under various penal laws to deal with offences of sexual abuse
within marriage.
A. Exception 2 protects the right to privacy and conjugal rights of the married couple.
[¶42] The right to privacy entails at its core the protection and preservation of the sanctity of
the institution of marriage from excessive interferences. 66 It is submitted that Exception
2protects the right to privacy of the married couple because i) Exception 2 protects the
privacy and sanctity of the institution of marriage. ii) Exception 2 protects the conjugal
rights of married individuals.
i) Exception 2 protects the privacy and sanctity of the institution of marriage.
[¶43] The fundamental right to privacy safeguards an individual's sanctity of marriage and
60
Supra note 20 art. 21.
61
Francis Coralie Mullin v. Adm'r Union Territory of Delhi, (1981) 1 SCC 608 (India); see also Meera Santosh
Pal v. Union of India, (2017) 3 SCC 462; Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
62
T.V. Vatheeswaran v. State of Tamil Nadu, (1983) 2 SCC 68 (India); see also Bachan Singh v. State of
Punjab, (1980) 2 SCC 84 (India).
63
Satwant Singh Sawhney v. D. Ramarathnam, (1967) 3 SCR 525 (India); see also Kharak Singh v. State of
Uttar Pradesh, (1964) 1 SCR 332 (India); Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148 (India).
64
K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 (India); see also R Rajagopal v. State of Tamil Nadu,
(1994) 6 SCC 632 (India).
65
Navtej Singh, supra note 58; Sharda v. Dharampal, (2003) 4 SCC 493 (India).
66
Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676 (India); see also Baldev Singh v. Surinder Mohan
Sharma, (2003) 1 SCC 34 (India).
31
family life67 and the essential corollary of the sacramental nature of the marriage is its
indissolubility.68 Moreover, international declarations and conventions viz. ICCPR 69 and
UDHR70 have also recognized the privacy of the sacred sphere of marriage.71 The act of
consummation of marital relationship 72 and intimate sexual activity 73 between the married
couple is an extremely private realm of marriage.74
[¶44] The Petitioner contends that Exception 2 aims at the preservation of family institutions
by ruling out the possibility of false, fabricated, and motivated complaints of ‘rape’ by
‘wife’ against her ‘husband’ and the pragmatic procedural difficulties that might arise in
such a legal proceeding.
[¶45] Exception 2 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 2 preserves the sanctity of the
institution of marriage.
ii) Exception 2 protects the conjugal rights of the married individual.
[¶46] The fundamental right to privacy protects the sexual and intimate activity of
individuals.75 The right to live a married life is a fundamental right guaranteed by the
right to life and personal liberty under Art. 21.76 Marriage is a voluntary sexual and public
social union of a man and a woman. 77 For the solemnization of marriage, the wife and
husband enter into sacrosanct bond,78 wherein they have conjugal rights which can
67
Mr. X v. Hospital Z, (1998) 8 SCC 296 (India); see also Shashank Shekhar Mishra v. Ajay Gupta, 2011 SCC
OnLine Del 3741 (India).
68
Dr. Dwaraka Bal v. Prof. Nainan Mathews, 1953 SCC OnLine Mad 31 (India).
69
International Covenant on Civil and Political Rights art. 23, Dec. 16, 1966, 999 U.N.T.S. 177.
70
G.A. Res. 217 (III) A, Universal Declaration of Human Rights, art. 16, (Dec. 10, 1948).
71
Vennangot Anuradha Samir v. Vennangot Mohandas Samir, (2015) 16 SCC 596 (India); see also Bajrang
Gangadhar Revdekar v. Pooja Bajrang Revdekar, 2009 SCC OnLine Bom 1249 (India).
72
Jagannath Muduli v. Nirupama Behera, 2008 SCC OnLine Ori 29 (India); Joseph Shine, supra note 58.
73
John N. Edwards, Sexual Behavior in and out of Marriage : An Assessment of Correlates, 38 J. Marr. &
FAm., 73, 76 (1976).
74
Sharron Hinchliff, Intimacy, Commitment & Adaptation : Sexual relationships within long-term marriages
596, 600 (2004).
75
K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
76
Shafin Jahan v. Asokan K.M, (2018) 16 SCC 408 (India); see also Krishna v. Union of India, 2010 SCC
OnLine Del 3589 (India).
77
Rita Nijhawan v. Balkishan Nijhawan, 1973 SCC OnLine Del 52 (India); see also Siraj Mohmedkhan
Janmohamad Khan v. Hafizunnisa Yasinkhan, (1981) 4 SCC 250 (India).
78
Suresh Nathmal Rathi v. State of Maharashtra, 1991 SCC OnLine Bom 236 (India); see also Mithailal v. State
of Maharashtra, 1993 SCC OnLine Bom 171 (India).
32
enforce over each other.79
[¶47] Conjugal rights80 are the rights and privileges arising from the matrimonial
relationship81 which include the mutual rights of companionship and sexual relations. 82
The institution of marriage believes in consummation of the conjugal rights for the long
sustainment of marriage.83
[¶48] The Petitioner contends that first, individuals who enter voluntarily into the sacred
matrimonial relationship, by virtue of their conjugal rights, enter into a sexual union.
Secondly, Exception 2 does not criminalize either of the individuals in the matrimonial
bond for exercising their fundamental right to consummate their conjugal right of sexual
union.
[¶49] Hence, it is submitted that Exception 2 protects the right to privacy and conjugal rights
of the married individual.
B. Adequate legislations are there to deal with offences of sexual abuse within
marriage.
[¶50] 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
compete.84 It is submitted that the existing legislation in our country are adequate and
sufficient to deal with cases of sexual abuse within marriage.
[¶51] First, adequate legislation is provided under the Indian Penal Code, 1860 and secondly,
adequate legislation is provided under the Protection of Woman from Domestic Violence
Act, 2005. (Elaborated in Issue B(II)).
[¶52] Therefore, it is humbly submitted before this Hon’ble Court that Exception 2 to § 375
of IPC does not violate Art. 21 of the Indian Constitution.
79
Husseinkhan Sardarkhan v. Gulab Khatum, 1911 SCC OnLine Bom 27 (India); see also Anil Yashwant
Karande v. Mangal Anil Karande, 2015 SCC OnLine Bom 6257 (India).
80
P. Ramanatha Aiyar, The Major Law Lexicon 366 (4th ed. 2001).
81
Elizabeth A. Martin, Oxford Dictionary of Law 105 (5th ed. 2002).
82
Mangal Anil Karande v. Annie Varghese, 2008 SCC OnLine Bom 461 (India); see also Bhagirathabai v.
Bapurao Devrao, 1991 SCC OnLine Bom 131 (India); Bryan A. Garner, Black's Law Dictionary 343 (10th ed.
2014).
83
Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4 SCC 90 (India).
84
Dipak Bose v. State of West Bengal, (1973) 4 SCC 43 (India).
33
ISSUE B(II): WHETHER FORCEFUL INTERCOURSE BY A MAN WITH HIS
WIFE AGAINST HER WILL AND/OR WITHOUT HER CONSENT CAN BE
CRIMINALIZED AS CONSTITUTING RAPE UNDER PROVISION OF § 375 OF
THE PENAL CODE?
[¶53] It is humbly submitted before the Hon’ble Court that forceful intercourse by a man
with his wife against her will and/or without her consent cannot be criminalized as
constituting rape under provision § 375 of the Penal Code. Moreover, in such cases, there
exists a near impossibility on the part of the husband to prove his innocence. Hence, in
this argument, it is humbly submitted that: (I) Exception 2 rules out the possibility of false
rape complaints within marriage. (II) Exception 2 rules out the possibility of false rape
complaints within marriage. (III) Adequate legislations are there to deal with the offences
of sexual abuse within marriage.
I. Exception 2 rules out the practical and technical difficulties that would arise in
such legal proceedings.
[¶54] It is humbly submitted before the Court that false charges of rape are not
uncommon.85 Harassment and arrest on account of false charges of rape bring
humiliation, curtail freedom, and casts scars forever on the husband and relatives of the
accused.86
[¶55] The Petitioner 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 about rape under § 375,87 4112 complaints were found false and
out of 18,552 men arrested for rape, 13,813 men were acquitted and only 4739 men were
convicted88 Further, out of a total of 1,98,851 men arrested for an offence under S. 498A 89
for cruelty, 82,075 men were acquitted and only 2,198 were convicted.90
85
Radhu v. State of Madhya Pradesh, (2007) 12 SCC 57 (India); see also Sanjay Kumar v. State of Himachal
Pradesh, 2015 SCC OnLine HP 3008 (India).
86
Arnesh Kumar v. State of Bihar, (2014) 8 SCC 469 (India).
87
Supra note 35 § 375.
88
Ministry of Home Affairs, Gov't of India, National Crime Records Bureau (2015-16), (June 20, 2022, 04 : 45
AM), http://ncrb.gov.in/StatPubglications/CII/CII2015/FILES/CrimeInIndia2015.pdf.
89
Supra note 35 § 498A.
90
Ministry of Home Affairs, Gov't of India, National Crime Records Bureau (2015-16), (June 20, 2022, 04: 45
AM), http://ncrb.gov.in/StatPubglications/CII/CII2015/FILES/CrimeInIndia2015.pdf; Arnesh Kumar v. State of
Bihar, (2014) 8 SCC 469 (India).
34
[¶56] Further, it is submitted that Exception 2 protects 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 new legal terrorism where the mere accusation and the statement of the
wife would be equivalent to evidence and henceforth, sufficient for a conviction of the
husband.
[¶57] Hence, it is submitted that Exception 2 aims to preserve the family as an institution by
ruling out the possibility of false, fabricated, and motivated complaints of rape by the
wife against her husband for sexual activities within marriage.
II. Exception 2 rules out the practical and technical difficulties that would arise in
such legal proceedings.
[¶58] It is humbly submitted that the classification made by Exception 2 rules out the
practical and technical difficulties that may arise in a legal proceeding wherein a husband
is charged with rape for sexual activities within marriage. Hence, it is contended that: (A)
It would be nearly impossible on the part of the husband to prove his innocence. (B)
Circumstantial evidence would not prove the alleged act of rape within marriage beyond a
reasonable doubt.
A. Near impossibility on the part of the husband to prove his innocence.
[¶59] In cases of rape, even the slightest degree of penetration is sine qua non 91 to constitute
the offence of rape.92 The actus reus stand established when there is evidence of
penetration in the medical reports.93 Further, in absence of any corroborating evidence of
the victim, the statement of the prosecutrix can solely rely for the conviction of the
accused.94
[¶60] First, it is submitted that in the case of a marriage, cohabitation is not uncommon and
a couple may have consensually cohabitated on various occasions, which makes
penetration most probable to appear during medical examinations. Consequently, the
91
Shekara v. State of Karnataka, (2009) 14 SCC 76 (India); see also Arjun Singh v. State of Himachal Pradesh,
(2009) 4 SCC 18 (India); Modi, Medical Jurisprudence and Toxicology 495 (22nd ed. 2010).
92
Wahid Khan v. State of Madhya Pradesh, (2010) 2 SCC 9 (India); see also Dinesh v. State of Rajasthan,
(2006) 3 SCC 771 (India); C.K. Parikh, Forensic Medicine & Toxicology 433 (6th ed. 1980).
93
Santosh Kumar v. State of Madhya Pradesh, (2006) 10 SCC 595 (India); State of Madhya Pradesh v. Munna
Choubey, (2005) 2 SCC 710 (India); Prof. Ian Dennis, The Law of Evidence 437, 487 (3rd ed. 2007).
94
Vijay v. State of Madhya Pradesh, (2010) 8 SCC 191 (India); see also Moti Lal v. State of Madhya Pradesh,
(2008) 11 SCC 20 (India).
35
medical report in most of the cases where the wife would allege rape would show that
there was penetration, although the act was consensual or not.
[¶61] Further, the conviction of the husband would in absence of corroborative evidence
depend upon the sole statement of the wife. Consequently, the aforesaid statement, even if
it were made with an ulterior motive or some vindictive motive by the wife, would be
sufficient to convict the husband of rape. Hence, it is submitted that it would be nearly
impossible for the husband to prove his innocence in case he is accused of rape for sexual
activities within marriage.
B. Circumstantial Evidence would not prove the alleged act of rape within marriage
beyond a reasonable doubt.
[¶62] The criminal justice system for the conviction of an individual for an offence requires
certainty of truth.95 Conviction in cases of rape is found on circumstantial pieces of
evidence.96 Circumstantial pieces of evidence are pieces of evidence based on inference 97
and not on personal knowledge or observation. 98 The very nature of things in most cases
of rape is such that the only evidence available is circumstantial. 99 The circumstantial
evidence in order to sustain the conviction must draw an inference of guilt and must be
cogently and firmly established.100
[¶63] In cases of live-in-relationships where the couple lives as husband and wife, this
Court has expressed difficulty101 in finding out the truth as to what had happened within
the four corners.102 especially when the couple was living together.103
95
Dayabhai Chhaganbhai Thakker v. State of Gujarat, (1964) 7 SCR 361 (India); Sujit Biswas v. State of
Assam, (2013) 12 SCC 406 (India); Inder Singh v. State (Delhi Administration), (1978) 4 SCC 161 (India);
Sudipto Sarkar & V.R. Manohar, Law of Evidence 2224 (17th ed. 2010).
96
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.
97
Barnard A. Raum, Rape Trauma Syndrome as Circumstantial Evidence of Rape, 11 J. Psytr'y & Law. 203,
213 (1983).
98
Padala Vera Reddy v. State of Andhra Pradesh, 1991 SCC (Cri) 407 (India); see also Tonasa Bruno v. State of
Uttar Pradesh, (2015) 7 SCC 178 (India).
99
Rameshbhai Chanubhai Rathod v. State of Gujarat, (2009) 5 SCC 740 (India); see also Duryodhan Rout v.
State of Odisha, (2015) 2 SCC 783 (India); Chandmal v. State of Rajasthan, (1976) 1 SCC 621 (India); see also
Dr. V. Kesava Rao, Law of Evidence 5134 (18th ed. 2008).
100
Jaharlal Das v. State of Orissa, (1991) 3 SCC 27 (India).
101
Shivshankar v. State of Karntaka, 2018 SCC OnLine SC 3106 (India).
102
Alok Kumar v. State, 2010 SCC OnLine Del 2645 (India).
103
Uday v. State of Karnataka, (2003) 4 SCC 46 (India).
36
[¶64] Hence, it is submitted 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 truth that happened in the sanctity of the private sphere between
the husband and the wife, solely based on circumstantial evidence.
[¶65] Hence, it is submitted that consummation of the marriage between a couple who had
previously not been intimate, would be almost impossible to criminalize and nearly
impossible for the husband to prove his innocence based on circumstantial evidence.
III. Adequate legislations are there to deal with the offences of sexual abuse within
marriage.
[¶66] It is submitted that the existing legislation in our country is adequate and sufficient to
deal with cases of sexual abuse within marriage because: (A) Adequate legislation is
provided under the Indian Penal Code, 1860. (B) Adequate legislation is provided under
the Protection of Women from Domestic Violence Act, 2005.
A. Adequate legislation is provided under the Indian Penal Code, 1860.
[¶67] It is submitted that § 498A104 is available for the 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 physical105 as well as mental cruelty.106 In cases, where the husband or his
relatives subject the wife to cruelty, they shall be punished with imprisonment.107
[¶68] Further, § 354108 is provided to criminalize any assault or criminal force that outrages
the modesty of a woman. The words “any woman” used in § 354 are wide enough to
protect the wife, against the acts done by the husband, which outrages the modesty of the
wife,109 even in private.110 A husband if he outrages the modesty of his wife shall be
104
Supra note 35 § 498A.
105
A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22 (India).
106
Gurbax Singh v. Harminder Kaur, (2011) 11 SCC 198 (India); see also Amar Lal Arora v. Shashi Bala, 2011
SCC OnLine Del 2923 (India); Shobha Rani v. Madhukar Reddi, (1988) 1 SCC 105 (India); P.S.A. Pillai,
Criminal Law 895 (12th ed. 2014).
107
Supra note 35 § 498A; see also K. Srinivas Rao v. D. A. Deepa, (2013) 5 SCC 226 (India); Man Mohan Vaid
v. Meena Kumari, 2003 SCC OnLine Del 496 (India); Bhagwan Sakharam Said v. State of Maharashtra, 2000
SCC OnLine Bom 237 (India).
108
109
Nimeshbhai Bharatbhai Desai v. State of Gujarat, 2018 SCC OnLine Guj 732 (India).
110
State of Rajasthan v. Vijairam, 1967 SCC OnLine Raj 49 (India); Surendra Chaher, Outraging the Modesty
of a Woman : Inter-Spousal Perspective, 32 J. India L. Inst. 527, 535 (1990).
37
punished with imprisonment.111
[¶69] Moreover, it is submitted that § 377112 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 with his wife.113 Hence, it is submitted that there
are adequate legislations provided under the IPC to deal with offences of sexual abuse
within the marital sphere.
B. Adequate legislation is provided under the Protection of Women from Domestic

Violence Act, 2005.
[¶70] It is humbly submitted before the Court that § 3 114 protects women against domestic
violence which is wide enough115 to cover all forms of sexual abuse-physical, 116 mental
and sexual.117
[¶71] The ambit is wide enough to cover cases of sexual abuse against the wife by the
husband and the legal recourse available to a wife includes a protection order, monetary
relief and compensation, and penal punishment to the perpetrator.118
[¶72] Hence, it is humbly submitted that the legislature has already provided adequate
remedies to married women if faced with sexual abuse by their husbands.
111
Rameshwar v. State of Haryana, 1983 SCC OnLine P&H 873 (India).
112
113
R.A. Nelson, Indian Penal Code 3846 (10th ed. 2008); A v. B, 1984 SCC OnLine Guj 8 (India).
114
The Protection of Woman from Domestic Violence Act, 2005 § 3.
115
Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 165 (India).
116
Shalini v. Kishor, (2015) 11 SCC 718 (India); see also Juveria Abdul Majid Patni v. Atif Iqbal Mansoori,
(2014) 10 SCC 736 (India); Tarakant Singh v. State of Bihar, (2012) 11 SCC 766 (India).
117
Raju Narayana Swamy v. Beena, 2017 SCC OnLine Ker 195 (India).
118
Guru Prasad Chattopadhyay v. State of West Bengal, 2017 SCC OnLine Cal 16210 (India); see also
Shabnam Parveen v. State of West Bengal, 2017 SCC OnLine Cal 16119 (India).
38
ISSUE C: WHETHER THE OFFENCE OF RAPE UNDER § 375 OF THE SINDHU
DESH PENAL CODE IS REQUIRED TO BE MADE GENDER-NEUTRAL?
[¶73] It is submitted before the Court that Art. 375 violates the Right to Equality before law
guaranteed under Art. 14. There’s no particular law in India if a male rapes another male
or a female rapes a male. This shows that there is no room for adult male victims or
female perpetrators moreover the mere possibility of exploitation of a gender-neutral law
against women cannot be a ground to retain the law in its present form. Hence in this
argument, it is submitted that: (I) § 375, if maintained in its present form, would violate
the fundamental right to equality for men and LGBTQ+ people. (II) The mere possibility
of exploitation of a gender-neutral law against women cannot be a ground to retain the
law in its present form.
I. § 375, if maintained in its present form, would violate the fundamental right to
equality for men and LGBTQ+ people.
[¶74] It is humbly submitted that § 375119 violates the Right to Equality before law
guaranteed under Art. 14.120 One of the great cornerstones of Indian democracy is
equality and when we look at the definition of rape according to § 375 of the Indian Penal
Court (IPC) we can find that it makes two clear, lucid inferences:
a) A rape offender is necessarily a man.
b) A victim of rape is necessarily a woman.
[¶75] Hence, the entire definition is considering the rape of only women and there’s no
clause for the rape of any other gender. There’s no particular law in India if a male rapes
another male or a female rapes a male. This shows that there is no room for adult male
victims or female perpetrators.
[¶76] Further, India’s recently reinstated anti-sodomy law which frames charges under §
377121 of the IPC has been the only way to bring any form of justice to these male
survivors. Ambiguously, however, this anti-sodomy law neither considers “sodomy” as
actual rape nor makes a distinction between consensual and non-consensual sexual acts
119
120
Supra note 20. art. 14.
121
39
between two male adults; moreover, its conviction statistics tell us very little.
[¶77] If we look at the ground reality which was shown by the survey of Insia Dariwala
where nearly 1500 males were surveyed, we can find out that out of a total 71% said they
were abused. 84.9% of the abused said that they were not able to tell anyone about the
abuse. There were 4 primary reasons for the same – shame 55.6% which was followed by
confusion 50.9% followed fear 43.5% followed guilt 28.7%.122
[¶78] Further, it is submitted that recently a Delhi-based centre for civil society did a survey
where it was found that nearly 18% of surveyed adult Indian men have reported being
coerced or forced to have sex. Moreover, among those, 16% have claimed that the
perpetrator was a female and 2% have claimed a male perpetrator. 123 Government data
shows that among child sexual abuse victims, 50% are male and around 60% of them are
molested or raped more than once. One out of every five adult males is raped or molested
at least once in their lifetime and several times molesters are women.124
[¶79] It is submitted that in June 2018, a teenage boy was sexually assaulted by 5 men in
Ghaziabad when an object was inserted inside his rectum. To our plight rape case is only
registered when there is the insertion of a penis or other objects in the vagina therefore,
the case was registered only under § 377 of IPC and not under 375 as our law does not
account for the same.125 Like this, there were many similar cases where males were
subjected to such heinous crimes but because of the lack of such laws, nothing happened.
[¶80] Furthermore, there is no protection for LGBTQ individuals from sexual assault. The
Constitution is an evolving document which provides for equality under Art. 14 and read
in light of the judgments in Navtej Singh Johar 126 and the National Legal Services
Authority,127 the LGBTQ community deserves recognition and extension of their rights
within an unaddressed spectrum of penal provisions, as do the male-gender, to be
122
Rituparna Chatterjee, The mindset is that boys are not raped: India ends silence on male sex abuse, THE
GUARDIAN (May 23, 2018), https://www.theguardian.com/global-development/2018/may/23/indian-study-
male-sexual-abuse-film-maker-insia-dariwala (last visited June 22, 2022).
123
Center for Civil Society, https://ccs.in/ (last visited June 22, 2022).
124
Maitreyee Gaikwad, Sexual Abuse of Males: Shrouded in The Shadows, GO NEWS,
gonewsindia.com/latest-news/health/sexual-abuse-of-males-shrouded-in-the-shadows-553 (last visited June 20,
2022).
125
Aneesha Mathur, Bill to make sexual crimes gender neutral introduced in Parliament, INDIA TODAY (July
13, 2019, 23:44), https://www.indiatoday.in/india/story/bill-to-make-sexual-crimes-gender-neutral-introduced-
in-parliament-1568504-2019-07-13 (last visited June 21, 2022).
126
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
127
National Legal Services Authority v. Union of India, AIR 2014 SC 1863.
40
identified as a possible victim of the offences.
[¶81] Hence, it is humbly submitted that § 375, if maintained in its present form, would
violate the fundamental rights of men and LGBTQ+ people.
II. The mere possibility of exploitation of a gender-neutral law against women

cannot be a ground to retain the law in its present form.
[¶82] It is humbly submitted before the Court that Clause 3 of Art. 15 128 states that “nothing
in this article shall prevent the State from making any special provision for women and
children”. Thus, it is legal on the part of the state to make the women-centric definition of
rape which is stated in § 375 IPC. But if we go by this logic state through an amendment
in § 375 IPC can protect males as mentioned in Art. 15.129
[¶83] The state should introduce rape laws that are more gender-neutral as we have to
realise sexual assault is neither about sex nor gender. At present, there are only two laws
that realize males can also be sexually assaulted:
a) “Protection of Children from Sexual Offences” (POSCO) addresses the sexual abuse
committed against both male and female child.130
b) The UGC “Sexual Harassment of Women at Workplace Act”. This act recognizes that
men are also subjected to lots of sexual harassment along with women in the
workplace.131
[¶84] Furthermore, addressing the concerns regarding the post-implementation

consequences of such a correction in the law, it has been argued that such a change in the
provision has a scope of being exploited and misused, in these cases, against women.
[¶85] This, in fact, is the case with every possible penal provision, but what matters is its
positive effects of it - which outweigh the likelihood of abuse. As held in the case of
Sushil Kumar Sharma,132 misuse by itself cannot be a ground for not criminalising an
offence or taking away its teeth. In Social Action Forum for Manav Adhikar v. Union of
128
Supra note 20. art. 15, cl. 3.
129
Supra note 20. art. 15.
130
Protection of Children from Sexual Offences” (POSCO) ACT, 2012.
131
Aneesha, supra note 125.
132
Sushil Kumar Sharma v. Union of India & Ors, AIR 2005 SC 3100.
41
India, it was held that substantial law cannot be restricted on the grounds of procedural
inadequacies, which the legislature should identify and rectify.133
[¶86] Hence, it is submitted that the mere possibility of exploitation of a gender-neutral law
against women cannot be a ground to retain the law in its present form.
III. Position of Gender-neutral case laws in different Jurisdictions.
[¶87] It is submitted that rape is classified as a gender-neutral crime under international law,
recognising that sexual assault in conflicts and conflict zones is not limited to women.
Akayesu134 was one of the first cases in international law to recognise the crime of rape,
which was punishable for both men and women.
[¶88] Gender-neutral laws have been enacted and recognised in about seventy-seven nations
around the world. Out of the seventy-seven countries with gender-neutral laws, the United
States of America, United Kingdom, Canada, Philippines, Finland, Ireland, and Australia
are among them. Some of these jurisdictions recognize both males and females as
perpetrators, others have only made their definitions gender-neutral in the case of victims.
[¶89] The Indian Constitution was borrowed, and Indian laws are very similar to those in
the United States and the United Kingdom. As a result, it is necessary to examine rape
legislation in the United States and the United Kingdom.
[¶90] In the United States of America, the word "woman" or "girl" is not included in the
definition of rape in the United States.135 The word "person" is used, making the
definition of rape gender-neutral and criminalising all forms of penetration without
consent, which differs from the definition of rape under § 375 of the Indian Penal Code
1872.136
[¶91] Further, it is submitted that previously, the United Kingdom did not have gender-
neutral laws, but after the case of R v. Ismail,137 it was decided that the Court should not
distinguish between vaginal, anal, or oral rape in determining the sentence, and therefore
every type of penetration in the anus, mouth, or vagina has been rendered criminal. "It is a
133
Social Action Forum for Manav Adhikar v. Union of India, (2018) 10 SCC 443.
134
Prosecutor v. Akayesu, ICTR-96-4.
135
Crimes and Criminal Procedure of 2011, 18 U.S.C. §§ 2241-2248.
136
137
R v. Ismail, [2005] All ER 216.
42
crime for a man to rape a woman or another man," says §142 of the Criminal Justice and
Public Order Act of 1994,138 which was the first to recognise male-victim rape.
[¶92] It is submitted that in 1997, the Philippines' Penal Code was revised to classify rape as
a gender-neutral crime. This amendment, on the other hand, creates a unique model of
gender-neutral rape law, in which male rape is recognised but regarded as a lower crime.
Although the law's definition is gender-neutral, rape of males is classified as Rape by
sexual assault and carries a shorter penalty of up to 12 years.
[¶93] Hence, it is humbly submitted that the offence of Rape under § 375 of the Sindhu
Desh Penal Code is required to be made gender-neutral.
138
Criminal Justice and Public Order Act, 1994 § 142.
43
PRAYER FOR RELIEF
Wherefore, in the light of the facts of the case, issues raised, arguments advanced, and
authorities cited, may this Hon’ble Supreme Court be pleased to hold, adjudge, and
declare that:
A. THE SPECIAL LEAVE PETITION FILED UNDER ARTICLE 136 OF THE

CONSTITUTION OF SINDHU DESH IS PROPER AND/OR VALID SINCE THE
STATE IS UNDER AN OBLIGATION TO TREAT MEN AND WOMEN
EQUALLY.
B. EXCEPTION 2 OF § 375 OF THE SINDHU DESH PENAL CODE IS NOT

VIOLATIVE OF ARTICLES 14, 19 AND 21 OF THE CONSTITUTION.
C. FORCEFUL INTERCOURSE BY A MAN WITH HIS WIFE AGAINST HER

WILL AND/OR WITHOUT HER CONSENT CANNOT BE CRIMINALIZED AS
CONSTITUTING RAPE UNDER PROVISION OF § 375 OF PENAL CODE.
D. THE OFFENCE OF RAPE UNDER § 375 OF THE SINDHU DESH PENAL

CODE IS REQUIRED TO BE MADE GENDER NEUTRAL.
And/or pass any other order that it may deem fit in the interest of justice, equity, and
good conscience.
ALL OF WHICH IS RESPECTFULLY

SUBMITTED
44
COUNSEL FOR PETITIONER
45

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TEAM CODE – TC 15P

[B.M. SREENIVASAIAH MEMORIAL 7TH NATIONAL MOOT COURT

[NAME OF THE FORUM]

FILED UNDER ARTICLE 136 OF CONSTITUTION OF SINDHU DESH

[NAME OF THE STATUTE]

KARUNADU HARASSED HUSBANDS ASSOCIATION (KHHA)

MEMORIAL for [PETITIONER / RESPONDENT]

MEMORIAL FOR PETITIONERS

ISSUE A: WHETHER THE SPECIAL LEAVE PETITION FILED UNDER ART.

III. Substantial Question of Law is involved...............................................................23

V. Grounds of rejection are not fulfilled....................................................................25

VI. Reliefs could be granted by this Hon’ble Court....................................................25

ISSUE B(I): WHETHER EXCEPTION 2 OF § 375 OF THE SINDHU DESH PENAL

ISSUE B(II): WHETHER FORCEFUL INTERCOURSE BY A MAN WITH HIS

ISSUE C: WHETHER THE OFFENCE OF RAPE UNDER § 375 OF THE SINDHU

I. § 375, if maintained in its present form, would violate fundamental right to

II. Mere possibility of exploitation of a gender-neutral law against women cannot be

III. Position of Gender-neutral case laws in different Jurisdictions............................42

PRAYER FOR RELIEF...................................................................................................44

A v. B, 1984 SCC OnLine Guj 8 (India).................................................................................39

A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22 (India)........................................................39

A.V. Papayya Sastry v. Government of Andhra Pradesh, AIR 2007 SC 1546........................25

Ajay Goswami v. Union of India, (2007) 1 SCC 143 (India)..................................................31

Allistair Patrick Brooker v. The Police, [2007] 3 N.Z.L.R. 91 (SC) (N.Z.)............................31

Alok Kumar v. State, 2010 SCC OnLine Del 2645 (India).....................................................38

Arjun Singh v. State of Himachal Pradesh, (2009) 4 SCC 18 (India).....................................36

Arnesh Kumar v. State of Bihar, (2014) 8 SCC 469 (India)....................................................35

Ashutosh Gupta v. State of Rajasthan, (2002) 4 SCC 34........................................................27

Bachan Singh v. State of Punjab, (1980) 2 SCC 84 (India).....................................................32

Baggett v. Bullitt, 377 U.S. 360 (1964)...................................................................................31

Baldev Singh v. Surinder Mohan Sharma, (2003) 1 SCC 34 (India).......................................33

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Devidas Ramachandra Tuljapurkar v. State of Maharashtra, (2015) 6 SCC 1 (India)............30

Dhirendra Pandua v. State of Orissa, (2008) 17 SCC 311.......................................................28

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Dipak Bose v. State of West Bengal, (1973) 4 SCC 43 (India)...............................................35

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Durga Shankar v. Raghu Raj, AIR 1954 SC 520.....................................................................23

Duryodhan Rout v. State of Odisha, (2015) 2 SCC 783 (India)..............................................38

G. v. Germany, [1984] E.H.R.R. 6...........................................................................................31

Ganga Kumar v. State of Bihar, AIR 2005 SC 3123...............................................................26

Ganga Ram v. Union of India, (1970) 1 SCC 377 (India).......................................................29

Gauri Shankar v. Union of India, (1994) 6 SCC 349 (India)...................................................28

Gay News v. United Kingdom, [1983] E.H.R.R. 5..................................................................31

Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148 (India).............................................32

Gurbax Singh v. Harminder Kaur, (2011) 11 SCC 198 (India)...............................................39

Harakchband v. Union of India, (1970) 3 SCC 845 (India).....................................................28

Hashman v. United Kingdom, [1999] E.C.H.R. 13.................................................................31

Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 165 (India).......................39

Husseinkhan Sardarkhan v. Gulab Khatum, 1911 SCC OnLine Bom 27 (India)....................34

Inder Singh v. State (Delhi Administration), (1978) 4 SCC 161 (India).................................37

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

Jagannath Muduli v. Nirupama Behera, 2008 SCC OnLine Ori 29 (India).............................33

Jaharlal Das v. State of Orissa, (1991) 3 SCC 27 (India)........................................................38

Jalan Trading Co. v. Mill Mazdoor Sabha, (1967) 1 SCR 15 (India)......................................29

Jean-Paul Labaye v. The Queen, 2005 SCC OnLine Can SC 80 (Can.).................................32