Petitioner

Summary of arguments

1. Whether the amended Sections 354 and 375 of the Sindhian Penal Code, 1860, are
violative of Articles 14 and 15 of the Constitution of Sindhia?

It is most humbly submitted before this Hon'ble court that the amended Sections 354 and 375
of the Sindhian Penal Code, 1860 are violative of Articles 14 and 15 of the Constitution of
Sindhia. The classification of men and women in different pedestals in a country like India is
much essential in a country like Sindhia. Moreover such classification is in light of doctrine
of reasonable classification.

2. Whether the Jurisdictional Court is justified to levy pro tem compensation based on
the facts and proceed with the trial in view of the Constitution of Sindhia?

It is most humbly submitted before this Hon'ble court that the Jurisdictional Court is not
justified to levy pro tem compensation based on the facts and proceed with the trial in view of
the Constitution of Sindhia as Elijah in his own volition accepted to attend the meeting at
midnight and here was no factor of compulsion. Moreover, the decision was solely based on
the testimony of taxi driver.

Arguments Advanced

1. Whether the amended Sections 354 and 375 of the Sindhian Penal Code, 1860,
are violative of Articles 14 and 15 of the Constitution of Sindhia?

It is most humbly submitted before this Hon'ble court that the amended Sections 354 and 375
of the Sindhian Penal Code, 1860 are violative of Articles 14 and 15 of the Constitution of
Sindhia.

1.1 The amendment violates reasonable classification and hence Article 14:
Article 14 guarantees equality and equal protection before law. But, this principle of equality
does not mean that every law must have universal application to all persons who are not by
nature, attainment or circumstances in the same position. The section 354 and 375 of IPC is
designed in such a way that only a man bears culpability. But that does not justify the
proposition that he is not entitled to be heard, if he makes an application to the court to that
effect. Thus, the idea of making these provisions gender neutral is not reasonably classified
and results in oppression of weaker sections of society.

In Sindhia, the Supreme Court of India has laid down the twin test for reasonable
classification1 and held that for the classification to pass the test, two conditions must be
fulfilled:

i. Classification must be founded on an intelligible differentia which distinguishes those that

It was further stated that such classification made by the law should have a reasonable nexus
with the object which the Legislature seeks to achieve.

The legislature’s intent with regard to section 497 of IPC which excludes women as offender
or abettor is that- it has an obligation to make laws distinguishing and classifying persons and
things upon which its laws are to operate in order to deal with diverse problems resulting
from an infinite variety of human relations. In the case of Ameerunnisa Begum vs. Mahboob
Begum,2 the Supreme Court held that the legislature has to deal with diverse problems arising
out of an infinite variety of human relations and must necessarily have the power of making
special laws to attain particular objects. Hence, Article 14 recognizes “women” as a class
different from men.

1
Shri Ram Krishna Dalmia vs Shri Justice S. R. Tendolkar, 1958 AIR 538, 1959 SCR 279; D.S.
Nakara &
Others vs Union Of India, 1983 AIR 130, 1983 SCR (2) 165
2
Ameerunnisa Begumand ors. vs. Mahboob Begum, AIR 1956 SC 91
Similarly, with regard to the present case, an interference can be drawn that the act of Jigyasa
would have been an act of defence against Elijah and the subsequent involvement of other
four women could be a result of rescuing Jigyasa.

The equal protection of laws guaranteed by Article 14 does not always mean that all laws
must be general in character. It does not mean that the same laws should apply to all persons.
In fact, identical treatment in unequal circumstances would amount to inequality.Therefore
for the society to progress a reasonable classification is necessary.

1.2. The amendment violates Article 15(3) of the constitution:

Sex is a sound classification and although there can be no discrimination in general on that
ground, the Constitution itself provides for special provisions in the case of women and
children. The two articles i.e, Articles 14 and 15 read together validate the impugned clause
in section 497 of the Indian Penal Code.

There is no denying the fact that women in India have made considerable progress since
independence but yet they have to struggle against many handicaps and social evils in the
male dominated society. The recent data released by NCRB shows that the crime against
women rose by 15.3 per cent in 2021 from the previous year, with 4,28,278 cases registered
in 2021 following 3,71,503 cases in 2020. Hence, women are mistreated in various spheres of
life across religions, regions and communities. Thus, protecting them by different legislations
and provisions as a positive discrimination upholds social justice.

It is submitted that, by virtue of Art. 15 (3) of the Indian constitution, the state is permitted to
make any special provision for women, departing from Art. 15 (1). The Article 15 (3) states:

“Nothing in this Article shall prevent the State from making any special provision for women
and children.

In the case of Dattatraya Motiram More vs. State of Bombay, AIR 1953 Bombay 311, it was
held that the meaning of Article 15 (3) of the Constitution would be that a special provision
in favor of women would be valid even if it is an implied discrimination against men.
Moreover, in the case of Shamsher Singh vs. State of Punjab, it was held that if a particular
provision falls squarely within the ambit of Art. 15 (3), it cannot be struck down merely
because it may amount to discrimination solely on the basis of sex. Hence, the immunity
granted to women from being prosecuted under sections 354 and 375 is not discriminatory
but valid under Article 15 (3) of the Constitution.

Hence, it is humbly submitted that the sections 354 and 375 of IPC classifying men and
women in different pedestals is not violative of article 14 and 15 of the Indian constitution.

2. Whether the Jurisdictional Court is justified to levy pro tem compensation based
on the facts and proceed with the trial in view of the Constitution of Sindhia?

It is most humbly submitted before this Hon'ble court that the Jurisdictional Court is not
justified to levy pro tem compensation based on the facts and proceed with the trial in view of
the Constitution of Sindhia as there are no sufficient evidences and decision was solely based
on the testimony of taxi driver.

1.1 “SUBLA FUNDAMENTO CEDIT OPUS”- A FOUNDATION BEING REMOVED,

It is humbly submitted that the incident at Anjuna beach took place with the consent of
Elijah. That indeed is the case since Elijah in his own volition accepted to attend the meeting
at midnight. There was no factor of compulsion. Moreover, it was also claimed that he was
clairvoyant, having the ablity to see beyond the range of ordinary perception. Subla
Fundamento cedit opus”- a foundation being removed, the superstructure falls. A person
having done wrong cannot take advantage of his own wrong and plead bar of any law to
frustrate the lawful trial by a competent Court. In such a case the legal maxim Nullus
Commodum Capere Potest De Injuria Sua Propria applies. 3

3
Union Of India & Ors vs Major General Madan Lal Yadav, 1996 AIR 1340, 1996 SCC (4)
127
In the case of Ramesh Prasad Patel vs Union Of India (W.P. (S) No. 4841 of 2008), it was
held that a person can claim any right arising out of his wrong doing according to Juri Ex
Injuria Non Oritu.

2.2. “VOLENTI NON FIT INJURIA”

Volenti non fit is Latin for “to a willing person, it is not a wrong.” This legal maxim
Holds that a person who knowingly and voluntarily risks danger cannot recover for any
Resulting injury.This principle was the common-law basis for the assumption of the risk
Doctrine. There are 2 essential elements for volenti non fit injuria:

1.The plaintiff has the knowledge of the risk

2.The plaintiff with the knowledge of risk has voluntarily agreed to suffer the harm.

In the present case, Elijah, the US national was a self claimed aura cleanser.
Thus, being
Aware of the imminent and inherent danger, and the past incidents, the deceased had
Knowledge of the risk. Hence it is most humbly submitted that Elijah should be guilty of his
act, and the decision of the court to provide him compensation is unjustifiable.