1

Roll No.: 3711

Roll no.:3701

IN THE HON’BLE SUPREME COURT OF INDIA

PUBLIC INTEREST LITIGATION UNDER ARTICLE 32 OF THE

IN THE MATTER OF

NIDHI Petitioner

VERSUS

UNION OF INDIA Respondent

IN THE ISSUES CONCERNING TO MARITAL RAPE; SECTION 375

TABLE OF CONTENTS

1. LIST OF ABBREVIATIONS ……………………………………………………….03

2. INDEX OF AUTHORITIES ………………………………………………………….04

3. STATEMENT OF JUISDICTION …………………………………………………..05

4. STATEMENT OF FACTS………………………………………………………………06

5. STATEMENT OF ISSUES…………………………………………………………….07

6. SUMMARY OF ARGUMENTS…………………………………………………….08

7. ARGUMENTS ADVANCED………………………………………………….09 to 12

8. PRAYER…………………………………………………………………………………….13
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LIST OF ABBREVIATIONS

ABBEVIATION ACTUAL TERMS

SC Supreme Court

HC High Court

& And

PIL Public Interest Litigation

AIR All India Reporter

SCC Supreme Court Cases

NGO Non Governmental Organization

IPC Indian Penal Code

Art. Article
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LIST OF AUTHORITIES

STATUTE REFERRED:
 Law of Constitution
 Indian Penal Code ,1860
 Code of Criminal Procedure ,1973

JOURNALS:

 Supreme Court Cases

BOOKS REFERRED:

 Dr. J. N. Pandey, The Constitutional Law of India ,Central Law Agency, 59th Edn. 2022.
 S.N. Mishra, Indian Penal Code 22nd edn. Central Law Publications, Prayagraj,2022
 S.N. Mishra, Code of Criminal Procedure 17th edn. Central law agency, 2007

WEBSITES:
 https:// www.blog.ipleaders.com
 https:// www.legalserviceindia.com
 https:// www.indiankannon.org
 https:// www.livelaw.com

LISTS OF CASE LAWS:

1. State of Rajasthan v. Shri Nmarayan

2. Queen Empress v. Haree Mythee

3. Sree Kumar v. Pearly Karun

4. Saroja Rani v. Sudarshan Kumar Chada

5. State v Vikash

6. Bodhisattwa Gautam v. Subhra Chakrabort

STATEMENT OF JURISDICTION

The appellant have approached the Hon’ble SC of India under Art.136 of the Constitution of India. Leave
has been granted by the Hon’ble Court and the matter has now been listed for arguments. The
provisions under which the appellant has approached the Hon’ble Court and to which the respondent
humbly submits, is read herein under as:

Article 32 of the Indian Constitution which confers as-

Remedies for enforcement of rights conferred by this Part-

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be
appropriate, for the enforcement of any of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ),
Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all
or any of the powers exercisable by the Supreme Court under clause ( 2 ).

(4) The right guaranteed by this article shall not be suspended except as otherwise for by this
constitution.
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STATEMENTS OF FACTS
Nidhi and Subodh, aged 22 and 24 respectively, are two working professionals in the city of Patiala. They
have been live-in partners since 2017 and love each other. Their parents were against them marrying
each other. However, both of them managed to convince their parents that this was the perfect match
for them. In December 2018, Nidhi and Subodh tied the knot as per the Hindu rituals and customs. After
their marriage, the relationship took a toll and it wasn’t the same as it had been prior to the marriage.

The primary reason according to Nidhi was that Subodh had begun to be a more dominating
figure. He would now demand intercourse as if it were a matter of right rather than it being an act of
two consenting adults. He would never pay heed to the feelings of Nidhi and this was something that
hurt her. When Nidhi tried to talk about this to her mother and mother-in-law, both of them had the
same view that it is the duty of an Indian wife to fulfill the wishes of her husband and be a constant
companion to him at any cost.

One day, Nidhi was watching a debate show on television on the topic of marital rape. A few of
the panelists strongly condemned Exception II to Section 375 of the Indian Penal Code, 1860. They
argued that it was based on the archaic concepts where the wife was considered as possession and
property of the husband. It was further argued that marital rape also violated human rights and various
rights of women under Article 21 of the constitution. They also demanded that there should not be any
distinction between rape within and outside the marriage. On the other hand, the other panelists
argued that Exception II to Section 375 had been inserted to preserve the institution of marriage and
criminalization of sexual intercourse between spouses had potential to wreak havoc on the society.
Further, they argued that the Indian law delivers proper protection to women rights and the Legislature
is well aware of the situation and demands of the Indian society.

Society for Women’s Rights is an NGO that works for the development and welfare of women. It
is an organization that has previously helped to bring in women-centric laws by rallying for classification
and enactment of women rights via legislations and judicial intervention. Deeply moved by the debate,
Nidhi finally decided to fight for her rights and what she thought was a blatant injustice against her
persona.

She approached Society for Women’s Rights and narrated her grief to their activists. The
members of the NGO decided to approach the court for seeking to eradicate the social plague of marital
rape. A Public Interest Litigation was filed by the NGO before the Hon’ble Supreme Court of India with
respect to the violation of fundamental rights of married women of all ages in the form of marital rape.
The PIL also challenges the constitutional validity of Exception II to Section 375 of the Indian Penal Code,
1860.
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ISSUES RAISED
1. Whether marital rape should be criminalized or not?

2. Whether sexual intercourse without wife’s consent under section 375 of IPC, 1860
. mounts to rape and is unconstitutional?

3. Whether the Exception 2 to Section 375 of IPC is violative of Article 21 of India

SUMMARY OF ARGUMENTS
Issue 1: Whether marital rape should be criminalized or not?

Marital rape in India cannot be criminalized as India comes with its own set of complexities like
literacy, lack of financial empowerment of the majority of females, the mindset of the society, vast
diversity, poverty, etc., the affidavit submitted by the Centre in the Delhi High Court pointed out.The
Centre has also pointed out that it would not treat the path of following western traditions blindly. It
said that before criminalizing marital rape, it is essential to determine what constitutes ‘marital rape’ –
the judgment as to whether the sexual act is marital rape or not should rest with the wife only.

Issue 2: Whether sexual intercourse without wife’s consent under section 375 of IPC, 1860
amounts to rape?

The law in India does not criminalize marital rape i.e., IPC 1860 does not recognize that it is a crime for a
husband to have sexual intercourse without wife’s consent that amounts to rape his wife.
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ARGUMENTS ADVANCED
Issue 1: Whether marital rape should be criminalized or not?

 That marital rape is not defined in any statue/ laws. While rape is defined under Section 375 of IPC
defining marital rape would call for a broad based consensus of the society. What may appear to be
marital rape to an individual wife, it may not appear so to others. As to what constitutes marital rape
and what would constitute marital non rape needs to be defined precisely before a view on its
criminalization is taken.

 That it has to been ensured adequately that marital rape does not become a phenomenon which
may destabilize the institution of marriage apart from being an easy tool for harassing the husbands.
The Supreme Court and various High Courts have already observed the rising misuse of Section 498 of
IPC.

 That merely deleting Exception 2 will in no way serve any useful purpose as a man is said to commit
'rape' as defined under Section 375 of IPC cannot be the same in the case of marital rape. If all sexual
acts by a man with her own wife will qualify to be marital rape, then the judgment as to whether it is a
marital rape or not will singularly rest with the wife. The question is what evidences the Courts will rely
upon in such circumstances as there can be no lasting evidence in case of sexual acts between a man
and his own wife.

 That as regards Section 376 (B) of IPC and 198 (B) of CrPC it is stated that these Sections flow from
the exception 2 of Section 375 as presently sexual acts by a man with his own wife is not seen as an
offence.

 That the Law Commission in its 172 Report titled Review of Rape Laws and the Department Related
Parliamentary Standing Committee on Home Affairs in its 167th Report have examined the matter and
did not recommend the criminalization of marital rape. Even though the Justice J S Verma Committee in
its Report titled "Amendments to Criminal Law" recommended that the exception to marital rape be
removed, it also pointed out that it is also important that the legal prohibition on marital rape is
accompanied by changes in the attitude of the prosecutors, police officers and those in society
generally. Thus merely deleting the exception 2 of Section 375 may not stop marital rape. Moral and
social awareness plays a vital role in stopping such an act.

 That the fact that other countries, mostly western, have criminalized marital rape does not
necessarily mean India should also follow them blindly. This country has its own unique problems due to
various factors like literacy, lack of financial empowerment of the majority of females, mindset of the
society, vast diversity, poverty, etc. and these should be considered carefully before criminalizing marital
rape.

That criminal law is in the Concurrent List and implemented by the States. There is a vast diversity in
the cultures of these states. It is necessary to implead the State Governments in the matter to know the
opinion of these states to avoid any complications at a later stage.

Issue 2: Whether sexual intercourse without wife’s consent under section 375 of IPC, 1860
amounts to rape and is unconstitutional?
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 The law in India does not criminalize marital rape i.e., IPC 1860 does not recognize that it is a
crime for a husband to have sexual intercourse without wife’s consent that amounts to rape his wife.
The reasons for this are manifold and can be found in various reports of the Law Commission,
Parliamentary debates and Judicial decision. The reasons range from protecting the sancity of the
institution of marriage to the already existing alternative remedies in law.

 “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their
mutual matrimonial consent and contract, the wife had given herself in kind unto the husband, which
she cannot retract.”(Sir Matthew Hale, C.J, in 17th century England).

This established the notion that once married, a women does not have the right to refuse sex
with her husband. He asserted that, upon marriage, the wife automatically hands over her legal person
to the husband and consents to all sexual acts, which cannot be retracted at any later date for no reason
whatsoever. He introduced within the marriage, a notion of ‘implied consent’ that started at the time of
the marriage and continued for the entire course of the marriage, and such consent was deemed
irrevocable by Lord Hale.

It seems that the Supreme Court also accepted this notion as in 1992 it held that ‘it is not
possible to believe that when a married woman has sex with her husband in the privacy of their bed-
room she would suffer abrasions on her body and the vaginal walls.Such approach of Indian judiciary
shows that forced and violent sex in marriage is not possible.

There is also one case of Bandit Queen, which depicts the tragic story of a village girl. Phoolan Devi, was
exposed from an early age to the lust and brutality of some men. She was married to a man old enough
to be her father. She was beaten and raped by him. This is truly one story that shows the apathy of the
existing society.

Most recently A Special Fast Track Court in New Delhi has ruled that intercourse between husband and
wife, even if forcible, is not rape and no culpability can be fastened upon the accused. The woman had
alleged that the accused named Vikash sedated her and took her to the office of the registrar of
marriages in Ghaziabad in an intoxicated state. He got the marriage documents signed by her on March
4, 2013. Later, Vikash raped her and then abandoned her.

The Judicial decision of Queen Empress v. Haree Mythee1, it was held that the wife over the age is of
15, and then the rape law does not apply in that situation. And if in this case, the husband was punished
because the wife was of 11 years only.

In the Kerala High Court, Sree Kumar v. Pearly Karun2, it was observed that the wife does not live
separately with the husband under the Judicial separation and being subject to sexual intercourse
without her will the act does not amount to a rape. Hence, it was said that the husband was not found
to be guilty of raping his wife though he was de facto guilty of doing or committing the act.

A husband whether he has any merit or not, is a very diety”These lines clearly indicate that not
just laws, but cultural values of Indian Society are the reason that married women’s autonomy (sexual
and otherwise) is routinely rejected and denied.

1
AIR 1890
2
AIR 1999
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Hinduism is the only religion in the world where the husband is put on par with god. The Laws of
Manu, India’s ancient revered scripture merrily educates women. His dictum that a wife ought to
respect her husband as God and serve him faithfully, even if he were vicious and void of any merit, was
accepted as applicable to all women.

For women, especially in the Hindu Social system the husband has special place: Husband is
worshipped like God; The strong tradition of, ‘doli mein jayegi aur arthi mein ayegi,’ meaning, that once
a girl enters her marital home only her bier should come out, leans upon religion for legitimacy. A lot of
blame is to be placed on the Indian society at large who bring up young women with the idea of pati
(husband) being parameshwar (God). Pleasing the husband is regarded as the sacred duty of the wife
especially when her husband is main income earner to the family and denying sexual or other whims
regarded as sin.

Issue 3: Whether the Exception 2 to Section 375 of IPC is violative of Article 21 of Indian
Constitution?

1. It is humbly submitted before this Hon’ble SC that this exception has been kept considering the
traditional customs in mind and its repeal may be violative to conjugal rights of husband.
Respondent feels that it has a duty to honour popular sentiments while maintaining progressive
approach to ensure that there is no discord between two which will affect the implementation of
new law and ultimately defeating its nature. Traditional Theories:

 Contract Theory: Marriage is generally treated as a contract and one of the conditions of such a
contract involves the implied consent of the wife to fulfill the sexual needs of the spouse as per his
whims and fancies. This gives to the husband a marital right to enter into sexual intercourse with his
wife. The contract theory, though fraught with flaws has survived for a considerable time
period.According to this theory, there exists no concept of marital rape because sexual intercourse
between spouses is always considered consensual.

 Women Treated As Property: This theory was mostly followed in the common law system. The
basic presumption was that the husband was the owner of his wife and therefore could not be said to
rape his own property. As women were treated as property , common law believed that seeking
consent for sexual intercourse was violative of man’s right to property.

 Marital Unity: Common law also believed that once married, the identity of a wife merges with
that of her husband and hence, the husband was considered unable to rape himself. This theory
considers the spouses to be a single entity.

Exception 2 of Sec. 375 of the IPC (‘exception clause’) does not state any reason for the exclusion
of sexual intercourse or sexual acts between a man and his wife from the purview of rape. Since the
crux of the focus of the section is on consent, it is possible that an irrefutable presumption of consent
operates when the relationship between the victim and the perpetrator is that of marriage. However, at
the same time, it is also possible that this was a legislative decision to exclude the operation of this
section from married relationships given the sanctity that this institution has assumed in our society.
This is probable since there are sections in the IPC where spouses are exempt from its application.

The Law Commission was directly faced with the validity of the exception clause in the 172nd Law
Commission Report. Here, during the consultation rounds, arguments were advanced regarding the
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validity of the exception clause itself. It was argued that when other instances of violence by a husband
toward wife was criminalized, there was no reason for rape alone to be shielded from the operation of
law. The Law Commission rejected this argument since it feared that criminalization of marital rape
would lead to “excessive interference with the institution of marriage”. This report sheds light on the
interplay between marital rape and the sanctity of the institution of marriage.

In light of this, the Criminal Law Amendment Bill, 2012 (‘Amendment Bill, 2012’) was drafted. In
this Bill, the word ‘rape’ was replaced with ‘sexual assault’ in an attempt to widen its scope but the Bill
did not contain any provision to criminalize marital rape. The Amendment Bill, 2012 did not take into
account the suggestions laid down in the J.S. Verma Report. The Parliament Standing Committee on
Home Affairs in its 167th Report (‘Standing Committee Report’) reviewed this Amendment Bill, 2012
and also organized public consultations.12 Here, it was suggested that S375 must be suitably amended
to delete the exception clause. However, the Standing Committee refused to accept this
recommendation. The Standing Committee Report argued that, first, if they did so, the “entire family
system will be under greater stress and the committee may perhaps be doing more injustice”. Second,
the Committee reasoned that sufficient remedies already existed since the family could itself deal with
such issues and that there existed a remedy in criminal law, through the concept of cruelty as under
S498A of the IPC.

 ANALYSING THE EXCEPTION CLAUSE IN LIGHT OF CONSTITUTIONAL LAW

Having established that the of a private sphere is flawed and that constitutional rights have a role
to play in a marriage, in this part, our aim is to show that the exception clause is unconstitutional.
Before we embark on our attempt to do the same, we must go back to the conflict that came about
after Sareetha and Harvinder Kaur. In light of these contrasting decisions, the Supreme Court in Saroja
Rani v. Sudarshan Kumar Chada,3 attempted to settle the issue and ultimately upheld the
constitutionality of the RCR(Restitution of conjugal rights). The Court agreed with the outcome in
Harvinder Kaur. However, on a closer reading, it is slightly different from the Delhi High Court decision.

Here, the Court holds that the purpose of RCR is to preserve a marriage, and hence, when analyzed
from this perspective, it does not violate either Article 14. The Court argues that the purpose of the law
justifies a separate law for married women and this does not violate Article 14 since there is a
reasonable classification. However, the Court held that the concept of RCR is not in tandem with the
concept of the ‘marital sphere’. Transporting this to the marital rape, the argument would be that even
though the law treats a married woman and an unmarried woman different with respect to their rights,
it would not be in violation of Article 14 since marriage serves as a reasonable classification. It is
important to note that the argument is not that rape per se is not unconstitutional, but rather that
marriage satisfies the criteria laid down for reasonable differentia under Article 14 of the Constitution.
Therefore, despite rape being a violation of Article 21, it is justified when it is ‘marital’ rape since it
amounts to a reasonable classification.

3
AIR 1984
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PRAYER
THEREFORE, in light of the issues raised, arguments advanced and authorities cited it is most humbly
and respectfully requested that this Hon’ble Supreme Court to adjudge on behalf of:

1. Petitioners may be requested to submit their reports to the Government of India for their
consideration by the competent authorities to bring appropriate legislation for the consideration of the
legislature.

2. Meanwhile, Respondent is ready to maintain that the consent of wife will be considered as part of
exception 2 to the section 375 of the IPC, the amendment act consequent to the prayer 2 is passes.

And Pass any other order that it may deem fit in the interest of Justice, Equity and Good Conscience
And for this, appellant as in duty bound shall humbly pray.

Place:

Date: (Counsel for Respondent)