1|Page

TABLE OF CONTENTS

 LEGISLATION 3

 CASES REFERRED 3

 BOOKS REFERRED 4

 LEGAL DATABASES 5

LIST OF ABBREVIATIONS 6-7

STATEMENT OF JURISDICTION 8

STATEMENT OF FACTS 9-10

ISSUES RAISED 11

SUMMARY OF PLEADINGS 12-13

PLEADINGS 14-25

A. Whether instant matter is maintainable before the Hon’ble Court?

2|Page

B. Whether Section 9, 13 (1-A) (ii) of the Hindu Marriage Act, 1955 and Order XXI Rule 32 and 33 of the
Code of Civil Procedure, 1908 is ex facie arbitrary and violates the fundamental rights under Article 14,
19 (1) (d) and 21 of the Constitution of India?

C. Whether a decree of restitution of conjugal rights violates the right of privacy, right of mental and
physical health and right of dignity of a woman under Article 21 of the Constitution of India?

D. Whether an act of the State can compel or induce a woman to surrender her fundamental right of
sexual and decisional autonomy which is intrinsic in the right to privacy and personal liberty under Article
21 of the Constitution of India?

E. Whether a decree for restitution of conjugal rights forbids a person to exercise her right to decide
whether to have sexual intercourse with his/her partner/spouse thus violating her right to bodily
integrity and spatial and behavioral privacy?

F. Whether exception 2 of Section 375 of the Indian Penal Code legalizes marital rape and violates the
fundamental rights of married women under Article 14, Article 19 and Article 21 of the Constitution of
India?

PRAYER 26
3|Page

INDEX OF AUTHORITIES

LEGISLATION

1. The Constitution of India, 1951.

2. The Indian Penal Code, 1860

3. Code of Civil Procedure, 1908

CASES REFERRED
Whirlpool Corporation v Registrar of Trademarks, Mumbai, (1998) 8 SCC 1
Harbanslal Sahnia v Indian Oil Corpn. Ltd, (2003) 2 SCC 107
Shakila Banu v. Gulam Mustafa, AIR 1971 Bom 166
T. Sareetha v. T.V. Subbaiah, AIR 2001
Radha Krishna Industries v. State of Himachal Pradesh, 2021 SCC OnLine SC 334,
decided on 20.04.2021
Suresh Kumar Koushal & Anr vs Naz Foundation & Ors on 11 December, 2013
4|Page

BOOKS REFERRED

th
1. V.N. Shukla, CONSTITUTION OF INDIA (12 ed., 2013).

th
2. Dr. D.D. Basu, COMMENTARY ON THE CONSTITUTION OF INDIA, (8 ed.,

2007).

th
3. Dr. D.D. Basu, CONSTITUTIONAL LAW OF INDIA, (8 ed., 2009).

th
4. P.M. Bakshi, THE CONSTITUION OF INDIA, (14 ed., 2017).

st
5. Dr. J.N. Pandey, THE CONSTITUTIONAL LAW OF INDIA, (51 ed., 2014).

th
6. H.M. Seervai, CONSTITUTIONAL LAW OF INDIA, (4 ed., 2010).

th
7. R.S. Bedi, , THE CONSTITUION OF INDIA, (10 ed., 2013).

st
8. Dr. S.C. Kashyap, CONSTITUTIONAL LAW OF INDIA, (1 ed., 2008).

th
9. M.P. Jain, INDIAN CONSTITUTIONAL LAW, (7 ed., 2015).

th
10. A.N. Saha, CRIMINAL REFERENCE, (6 ed., 2009

LEGAL DATABASES
5|Page

1. www.manupatra.com

2. www.indiancaselaws.org

3. www.indlaw.com

4. www.indiankanoon.org

5. www.judic.nic.in

6. www.lexisnexis.com

7. www.scconline.co.in

8. www.westlaw.com
6|Page

LIST OF ABBREVIATIONS

AIR All India Reporter

AP Andhra Pradesh

Art. Article

Bom. Bombay

Cal. Calcutta

CHN. Calcutta High Court Notes

CrLJ Criminal Law Journal

CrPC Criminal Procedure Code

Ed. Edition

HC High Court

Hon‟ble Honourable
7|Page

ILR Indian Law Reporter

KPC Kindian Penal Code

J. Justice

Ltd. Limited

MP Madhya Pradesh

NOC Notes Of Cases

Ors. Others

Pat. Patna

QB Queen‟s Bench

S. Section
8|Page

STATEMENT OF JURISDICTION

Article 32 in The Constitution Of India 1949

32. Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, whichever may be appropriate, for the enforcement
of any of the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by
clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to
exercise within the local limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as
otherwise provided for by this Constitution
9|Page

STATEMENT OF FACTS

1. Kalka Devi got married to Suresh Prasad on 10-01-2019 as per Hindu rites and rituals under the Hindu
Marriage Act, 1995. The husband and his family members started torturing Kalka Devi both, physically
and mentally. On account of this, Kalka Devi was forced to leave her matrimonial home within a year of
her marriage.
2. Kalka Devi filed a Petition u/s. 125 of the Code of Criminal procedure, 1973 seeking maintenance
before the Family Court, New Delhi. A complaint case was also filed against the husband and his family
members under section 498A of the Indian Penal Code, 1860 and Section 3 and 4 of the Dowry
Prohibition Act, 1961.
3. Thereafter, Suresh Prasad filed a petition seeking restitution of conjugal rights under Section 9 of the
Hindu Marriage Act, 1955 before the Family Court, Court, New Delhi.
4. The Family Court, on 20-07-2021, issued summon to Kalka Devi seeking her presence in the
proceedings before the Court.
5. During the pendency of the suit before the Family Court, New Delhi for restitution of conjugal rights
Kalka Devi filed a Writ Petition against the Union of India under Article 32 of the Constitution of India
before the Hon’ble Supreme Court of India inter alia challenging the constitutional validity of following
provisions: A. Section 9 and Section 13 (1-A) (ii) of the Hindu Marriage Act, 1955; and B. Order XXI Rule
32 and Order XXI Rule 33 of the Code of Civil Procedure, 1908 (to the extent applicable to a decree of
restitution of conjugal rights); and C. Explanation 2 of Section 375 of India Penal Code, 1860 on the
ground that it infringes the fundamental rights under Article 14, 19 (1) (a), 19 (1)(d), 21 of the
Constitution of India.
6. The Hon’ble Supreme Court of India has decided to hear the Counsel appearing for Kalka Devi and
Union of India in the matter on 4-04-2022 and 5-04-2022 with the following issues:
A. Whether instant matter is maintainable before the Hon’ble Court?
B. Whether Section 9, 13 (1-A) (ii) of the Hindu Marriage Act, 1955 and Order XXI Rule 32 and 33 of the
Code of Civil Procedure, 1908 is ex facie arbitrary and violates the fundamental rights under Article 14,
19 (1) (d) and 21 of the Constitution of India?
C. Whether a decree of restitution of conjugal rights violates the right of privacy, right of mental and
physical health and right of dignity of a woman under Article 21 of the Constitution of India?
10 | P a g e

D. Whether an act of the State can compel or induce a woman to surrender her fundamental right of
sexual and decisional autonomy which is intrinsic in the right to privacy and personal liberty under
Article 21 of the Constitution of India?
E. Whether a decree for restitution of conjugal rights forbids a person to exercise her right to decide
whether to have sexual intercourse with his/her partner/spouse thus violating her right to bodily
integrity and spatial and behavioral privacy?
F. Whether exception 2 of Section 375 of the Indian Penal Code legalizes marital rape and violates the
fundamental rights of married women under Article 14, Article 19 and Article 21 of the Constitution of
India?

ISSUES RAISED
11 | P a g e

A. Whether instant matter is maintainable before the Hon’ble Court?

B. Whether Section 9, 13 (1-A) (ii) of the Hindu Marriage Act, 1955 and Order XXI Rule 32
and 33 of the Code of Civil Procedure, 1908 is ex facie arbitrary and violates the fundamental
rights under Article 14, 19 (1) (d) and 21 of the Constitution of India?
C. Whether a decree of restitution of conjugal rights violates the right of privacy, right of mental
and physical health and right of dignity of a woman under Article 21 of the Constitution of
India?
D. Whether an act of the State can compel or induce a woman to surrender her fundamental right
of sexual and decisional autonomy which is intrinsic in the right to privacy and personal liberty
under Article 21 of the Constitution of India?
E. Whether an act of the State can compel or induce a woman to surrender her fundamental right
of sexual and decisional autonomy which is intrinsic in the right to privacy and personal liberty
under Article 21 of the Constitution of India?
F. Whether exception 2 of Section 375 of the Indian Penal Code legalizes marital rape and
violates the fundamental rights of married women under Article 14, Article 19 and Article 21 of
the Constitution of India?

SUMMARY OF PLEADINGS

1. Whether instant matter is maintainable before the Hon’ble Court?

12 | P a g e

It is humbly submitted to the Hon’ble court that the case is maintainable

2. Whether Section 9, 13 (1-A) (ii) of the Hindu Marriage Act, 1955 and Order XXI Rule 32 and
33 of the Code of Civil Procedure, 1908 is ex facie arbitrary and violates the fundamental rights
under Article 14, 19 (1) (d) and 21 of the Constitution of India

It is humbly submitted to the Hon’ble court Section 9, 13 (1-A) (ii) of the Hindu Marriage
Act, 1955 and Order XXI Rule 32 and 33 of the Code of Civil Procedure, 1908 is ex facie
arbitrary and violates the fundamental rights under Article 14, 19 (1) (d) and 21 of the
Constitution of India

3. Whether a decree of restitution of conjugal rights violates the right of privacy, right of mental
and physical health and right of dignity of a woman under Article 21 of the Constitution of
India?

It is humbly submitted to the Hon’ble court a decree of restitution of conjugal rights violates
the right of privacy, right of mental and physical health and right of dignity of a woman under
Article 21 of the Constitution of India.

4. Whether a decree for restitution of conjugal rights forbids a person to exercise her right to
decide whether to have sexual intercourse with his/her partner/spouse thus violating her right to
bodily integrity and spatial and behavioral privacy?

It is humbly submitted to the Hon’ble court an act of the State can compel or induce a woman to
surrender her fundamental right of sexual and decisional autonomy which is intrinsic in the right
to privacy and personal liberty under Article 21 of the Constitution of India.

5. Whether an act of the State can compel or induce a woman to surrender her fundamental right
of sexual and decisional autonomy which is intrinsic in the right to privacy and personal liberty
under Article 21 of the Constitution of India?

It is humbly submitted to the Hon’ble court that an act of the State can compel or induce a
woman to surrender her fundamental right of sexual and decisional autonomy which is
intrinsic in the right to privacy and personal liberty under Article 21 of the Constitution of
India
13 | P a g e

6.Whether exception 2 of Section 375 of the Indian Penal Code legalizes marital rape and
violates the fundamental rights of married women under Article 14, Article 19 and Article 21 of
the Constitution of India?

It is humbly submitted to the Hon’ble court exception 2 of Section 375 of the Indian Penal
Code legalizes marital rape and violates the fundamental rights of married women under
Article 14, Article 19 and Article 21 of the Constitution of India.
14 | P a g e

PLEADINGS

1.. Whether instant matter is maintainable before the Hon’ble Court?

Two important judgments on the “rule of alternate remedy”

Whirlpool Corporation v Registrar of Trademarks, Mumbai, (1998) 8 SCC 1
“Under Article 226 of the Constitution, the High Court, having regard to the facts of the case,
has discretion to entertain or not to entertain a writ petition. But the High Court has imposed
upon itself certain restrictions one of which is that if an effective and efficacious remedy is
available, the High Court would not normally exercise its jurisdiction. But the alternative
remedy has been consistently held by this Court not to operate as a bar in at least three
contingencies, namely, where the writ petition has been filed for the enforcement of any of the
Fundamental Rights or where there has been a violation of the principle of natural justice or
where the order or proceedings are wholly without jurisdiction or the vires of an Act is
challenged.”
Read full judgment
Harbanslal Sahnia v Indian Oil Corpn. Ltd, (2003) 2 SCC 107
“In an appropriate case, in spite of availability of the alternative remedy, the High Court may
still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition
seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of
natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the
vires of an Act is challenged.”
Read full judgment
Principles summarised by the Court
(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for
the enforcement of fundamental rights, but for any other purpose as well;

(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions
placed on the power of the High Court is where an effective alternate remedy is available to the
aggrieved person;

(iii) Exceptions to the rule of alternate remedy arise where

15 | P a g e

(a) the writ petition has been filed for the enforcement of a fundamental right protected by Part
III of the Constitution;

(b) there has been a violation of the principles of natural justice;

(c) the order or proceedings are wholly without jurisdiction; or

(d) the vires of a legislation is challenged;

(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226
of the Constitution in an appropriate case though ordinarily, a writ petition should not be
entertained when an efficacious alternate remedy is provided by law;

(v) When a right is created by a statute, which itself prescribes the remedy or procedure for
enforcing the right or liability, resort must be had to that particular statutory remedy before
invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion
of statutory remedies is a rule of policy, convenience and discretion; and

(vi) In cases where there are disputed questions of fact, the High Court may decide to decline
jurisdiction in a writ petition. However, if the High Court is objectively of the view that the
nature of the controversy requires the exercise of its writ jurisdiction, such a view would not
readily be interfered with.

Background
In the present case, the High Court had dismissed the writ petition instituted under Article 226 of
the Constitution challenging orders of provisional attachment on the ground that an alternate
remedy is available. The appellant challenged the orders issued on 28 October 2020 by the Joint
Commissioner of State Taxes and Excise, Parwanoo provisionally attaching the appellant’s
receivables from its customers. The provisional attachment was ordered while invoking Section
83 of the Himachal Pradesh Goods and Service Tax Act, 20172 and Rule 159 of Himachal
Pradesh Goods and Service Tax Rules, 20173 . While dismissing the writ petition challenging
orders of provisional attachment the High Court noted that although it can entertain a petition
under Article 226 of the Constitution, it must not do so when the aggrieved person has an
effective alternate remedy available in law.1

The court had enough reasons to entertain the problem. Therefore the case is maintainable.
1
[Radha Krishna Industries v. State of Himachal Pradesh, 2021 SCC OnLine SC 334, decided on 20.04.2021]
16 | P a g e

2. Whether Section 9, 13 (1-A) (ii) of the Hindu Marriage Act, 1955 and Order
XXI Rule 32 and 33 of the Code of Civil Procedure, 1908 is ex facie arbitrary
and violates the fundamental rights under Article 14, 19 (1) (d) and 21 of the
Constitution of India?

2.1 Restitution of conjugal rights is unconstitutional

During the time of introducing the provision for restitution of conjugal rights in the
Special Marriage Act, 1954 and the Hindu Marriage Act, 1955, there were heated
debates in the Parliament for and against it. It is significant to note that in 1983-1984,
the constitutional validity of section 9 of Hindu marriage act 1955 became a subject
matter of debate as a result of these case laws-

Ø The constitutional validity of the provision for restitution of conjugal challenged

before the Andhra Pradesh High Court in Sareetha v. T. Venkatasubbaiah, AIR 1983
AP 356. In this case sareetha claimed that section 9 of the Act is liable to be struck
down as violative of the fundamental rights in part III of the Constitution of India,
specifically Article 14 and 21.Justice Choudary held that section 9 is a savage and
barbarous remedy, violating the right to privacy and human dignity guaranteed by
Article 21 of the Constitution. It denies the women her free choice whether, when and
how her body is to become the vehicle for the procreation of another human being.
The woman loses her control over her most intimate decisions. Clearly therefore, the
right to privacy guaranteed by Article 21 is flagrantly violated by a decree of
restitution of conjugal right. As a result the section 9 of Hindu marriage act 1955 was
unconstitutional.

In fact, Justice Rotagi recognised that “the legislature has created restitution of
conjugal rights as an additional ground for divorce” 2.

In Shakila Banu v. Gulam Mustafa, AIR 1971 Bom 166, 1970, the Hon’ble High
Court observed: “The concept of restitution of conjugal rights is a relic of ancient
times when slavery or quasi-slavery was regarded as natural. This is particularly so
after the Constitution of India came into force, which guarantees personal liberties and

2
Harvinder Kaur v Harminder Singh, AIR 1984 Delhi 66,
17 | P a g e

equality of status and opportunity to men and women alike and further confers powers
on the State to make special provisions for their protection and safeguard.”

Rule 32 Order XXI of Code of Civil Procedure 1908 "Decree for specific performance for
restitution of conjugal rights, or for an injunction"

(1) Where the party against whom a decree for the specific performance of a contract, or for
restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of
obeying the decree and has wilfully failed to obey it, the decree may be enforced 18[in the case
of a decree for the restitution of conjugal rights by the attachment of his property or, in the case
of a decree for the specific performance of a contract or for an injunction] by his detention in the
civil prison, or by the attachment of his property, or by both.

(2) Where the party against whom a decree for specific performance or for an injunction has
been passed is a corporation, the decree may be enforced by the attachment of the property of the
corporation or, with the leave of the Court by the detention in the civil prison of the directors or
other principal officers thereof, or by both attachment and detention.

(3) Where any attachment under sub-rule (1) or sub-rule (2) has remained in force for 11[six
months] if the judgment-debtor has not obeyed the decree and the decree-holder has applied to
have the attached property sold, such pro be sold; and out of the proceeds the Court may award
to the decree-holder such compensation as it thinks fit, and shall pay the balance (if any) to the
judgment-debtor on his application.

(4) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same
which he is bound to pay, or where, at the end of 11[six months] from the date of the attachment,
no application to have the property-sold has been made, or if made has been refused, the
attachment shall cease.

(5) Where a decree for the specific performance of a contract or for an injunction has not been
obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that
the act required to be done may be done so far as practicable by the decree-holder or some other
18 | P a g e

person appointed by the Court, at the cost of the judgment-debtor, and upon the act being done
the expenses incurred may be ascertained in such manner as the Court may direct and may be
recovered as if they were included in the decree.

Section 9, 13 (1-A) (ii) of the Hindu Marriage Act, 1955 and Order XXI Rule 32 and 33 of the
Code of Civil Procedure, 1908 is ex facie arbitrary and violates the fundamental rights under
Article 14, 19 (1) (d) and 21 of the Constitution of India.

3. Whether a decree of restitution of conjugal rights violates the right of privacy,

right of mental and physical health and right of dignity of a woman under Article
21 of the Constitution of India?
Section 9 has always been in controversy regarding its constitutional validity. However, the same
was taken into consideration in true sense in 1983 by the Andhra Pradesh High Court.  In the
case of T. Sareetha v. T. Venkata Subbaiah, the High Court declared Section 9 of the HMA, 1955
as unconstitutional for being violative of the right to privacy and human dignity guaranteed
under Article 21 of the Constitution of India. Justice P.A. Choudhary observed that Section 9 is
the grossest form of violation of the right to privacy. Forcing a spouse to have sexual relations
with her spouse deprives her of the right to control her own body. The state cannot coerce a
spouse to prolong the voluntary union of her with her spouse in their relationship. The state by
coercion can neither soften the ruffled feelings between a couple nor can it clear the
misunderstanding between them. The judge even observed that Section 9 is not promoting any
public purpose, rather it is violative of right to equality under Article 14 of the Indian
Constitution as well. 

4. Whether an act of the State can compel or induce a woman to surrender her
fundamental right of sexual and decisional autonomy which is intrinsic in the
19 | P a g e

right to privacy and personal liberty under Article 21 of the Constitution of

India?
The counsel wants to highlight the hijab controversy and also the Puttaswamy judgment
The criticism of the Suresh Koushal judgement3 by the majority in Puttaswamy provides an
excellent starting point. It considers how a general right to privacy intersects with gender
and sexual orientation to create a “private space which protects elements crucial to gender
identity” [pp. 169]. Here, we must also consider the implications of privacy intersecting
with religious identity (which is a personal identity characteristic like gender). These
implications are briefly considered in Bobde and Chelameswar, JJ.’s concurring opinions.
Importantly for our purposes, the majority also held that the LGTBT community cannot
be denied the right to privacy merely because it is a “minuscule fraction of country’s
population” [pp. 126].
Bobde, J.’s concurring opinion notes that privacy “constitutes the springboard for the
exercise of freedoms” under Art. 19:

31. … A peaceful assembly requires the exclusion of elements who may not be peaceful or
who may have a different agenda. The freedom to associate must necessarily be the freedom to
associate with those of one’s choice and those with common objectives.
33. The right of privacy is also integral to the cultural and educational rights whereby a group
having a distinct language, script or culture shall have the right to conserve the same.
43. Exercising privacy is the signaling of one’s intent to these specified others – whether they
are one’s coparticipants or simply one’s audience – as well as to society at large, to claim and
exercise the right.

From Chelameswar, J.’s concurring opinion:

39. The choice of appearance and apparel are also aspects of the rights of privacy. The
freedom of certain groups of subjects to determine their appearance and apparel (such as
keeping long hair and wearing a turban) are protected not as a part of privacy but as a part of

3
Suresh Kumar Koushal & Anr vs Naz Foundation & Ors on 11 December, 2013
20 | P a g e

their religious belief. Such a freedom need not necessarily be based on religious beliefs falling
under Art. 25.

Consider then the following line of argument:

1. Decisional autonomy as a facet of privacy enables one to “preserve their beliefs,

thoughts, expressions, ideas, ideologies, preferences and choices” against majoritarian
diktats.
2. The general right to privacy intersects with deep personal identity characteristics (like
gender and religion) to create a space where elements crucial to that identity are
protected.
3. The right to privacy includes right to form groups (and also exclude people from the
group), which have the right to preserve and promote their symbols of identity –
language, culture, and forms of appearance and apparel in both private and public spaces.
4. The right to privacy cannot be denied to a group merely because they are “minuscule”.

Therefore an act of the State can compel or induce a woman to surrender her fundamental right
of sexual and decisional autonomy which is intrinsic in the right to privacy and personal liberty
under Article 21 of the Constitution of India.

5. Whether a decree for restitution of conjugal rights forbids a person to

exercise her right to decide whether to have sexual intercourse with his/her
partner/spouse thus violating her right to bodily integrity and spatial and
behavioral privacy?

5.1 Constitutional Validity of Section 9, Hindu Marriage Act, 1955 -

The remedy of restitution of conjugal rights was adopted in India in the 19th century from British
common law. This was the time when wives were considered as a property of their husbands.
The same remedy was abolished in the UK in the year 1947 by an enactment. Since then, the
remedy of restitution of constitutional rights has been challenged several times.
21 | P a g e

In the case of T. Sareetha v. T.V. Subbaiah, AIR 1983 AP 356, the court opined that section 9 is
in violation of Article 21 of the Constitution. Section 9 was held to be unconstitutional, being the
grossest form of violation.

In the case of Harvinder Kaur v. Harmander Singh, AIR 1984 Delhi 66 the wife had challenged
the decree granted to husband by the lower court, the court held that section 9 was
constitutionally valid, and the appeal was dismissed. Basically, the latter case was of opposite
opinion on the issue of the constitutionality of section 9.

After both the above-stated cases were decided, the Supreme Court in the case of Saroj Rani v.
Sudarshan Kumar, 1984 AIR 1562 where a wife had applied for restitution after being turned out
from the house, it was held that section 9 is constitutional. In addition to this, the court further
stated that the purpose of this section is to offer to induce husband and wife to live together and
settle their disputes in a friendly manner.

A decree for restitution of conjugal rights forbids a person to exercise her right to decide
whether to have sexual intercourse with his/her partner/spouse thus violating her right to
bodily integrity and spatial and behavioral privacy.4

4
https://view.officeapps.live.com/op/view.aspx?src=https%3A%2F%2Ffanyv88.com%3A443%2Fhttps%2Fwww.iilsindia.com%2Fstudy-material
%2F66072_1607883545.docx& (last accesed on may 9, 10pm)
22 | P a g e

6. Whether exception 2 of Section 375 of the Indian Penal Code legalizes

marital rape and violates the fundamental rights of married women under
Article 14, Article 19 and Article 21 of the Constitution of India?

Sec.375 of Indian Penal Code, define the term Rape, which provides that, to constitute the
offence of rape the essentials are required which are,

(i) Sexual intercourse must be left with a woman by a man, as understood in the term of section
375 (a) to (d).

(ii) Such sexual intercourse must tall under any of seven circumstances,
(a) Against her will;
(b) Without her consent;
(c) With consent obtained under fear of death or hurt;
(d) Consent is given under a misconception of fact that the man is her husband;
(e) Consent is given because of unsoundness of mind, intoxication or under influence of any
stupefying or unwholesome substance;
(f) With a woman under eighteen year of age, with or without her consent
(g) With a woman who is unable to communicate her consent.

ec.375 of Indian Penal Code, define the term Rape, which provides that, to constitute the offence
of rape the essentials are required which are,

(i) Sexual intercourse must be left with a woman by a man, as understood in the term of section
375 (a) to (d).

(ii) Such sexual intercourse must tall under any of seven circumstances,
(a) Against her will;
(b) Without her consent;
(c) With consent obtained under fear of death or hurt;
(d) Consent is given under a misconception of fact that the man is her husband;
(e) Consent is given because of unsoundness of mind, intoxication or under influence of any
stupefying or unwholesome substance;
(f) With a woman under eighteen year of age, with or without her consent
(g) With a woman who is unable to communicate her consent.
23 | P a g e

But aforesaid essentials for rape are having some exception also.

Such exceptions are;

i. If a woman who does not physically resist for penetration, by this reason it shall not be
regarded as the Sexual Activity.
ii. A medical procedure or intervention shall not shape an offence of rape.
iii. Sexual intercourse or sexual act by a man with his wife, the wife not being under 15 year
of age is not rape.

The third exception is known as Marital rape". And this exception of section 375,
articulates that non-consensual sexual intercourse by the husband with his wife, if the wife
is under the age of 15 years, then only intercourse praise as rape.

Mean if the wife is over the age of 15 yr than it would not be rape. By reading the
Exception-2 with 7 circumstances, then the exception will prevail off. It means that if the
wife is over 15 years then her consent or will become immaterial.

For this Prof. PSA Pillai wrote, in his book, Criminal Law I would code, if, thus, keep
outside the ambit of rape a coercive and non-consensual sexual intercourse by a husband
with his wife and thereby allows a husband to exercise, with impunity, his marital right of
(non-consensual or undesired) intercourse with his wife.

Further, he added that" It is believed that the husband's immunity for material rape is
premised on the assumption that a woman, on marriage, gives forever her consent to the
husband on the assumption that a woman, on marriage, gives forever her consent to the
husband for sexual intercourse. Her husband has the right to have sexual intercourse with
her, whether she is willing or not, and she is under obligation to surrender or submit to his
will and desire.

As he pointed that husband was right to have sexual intercourse with her even without her
will or consent. This comment is too harsh on married women. I think by the time when
Prof. Pillai pointed this he forgot that this provision is of penal code which has access only
in India. And this a country, where women got worship like a goddess. And in this modern
era where every nation is recognizing the sexual autonomy of women, we must have he
came forward to offend the self-esteem and dignity of women.
24 | P a g e

In the case of State of Karnataka v. krishnappa , where it was held that sexual violence apart
from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a
female. It is a serious blow to her supreme honour & offends her self-esteem &dignity it
degrades and humiliates the victims.

Even in case of Independent though v. Union of India, Justice Deepak Gupta held that can she be
deprived of her right to say yes or no to having sex with having her husband, even if he has
consented for the marriage? In my view, there is only one answer to this and the answer must be
a resounding NO.

It is also held in this case that, Constitutionally a female has equal as a male and no statute be
interpreted or understood to derogate from this position. If there is some theory that propounds
such an unconstitutional myth, then that theory deserves to be completely
demolished.assumption that a woman, on marriage, gives forever her consent to the husband for
sexual intercourse. Her husband has the right to have sexual intercourse with her, whether she is
willing or not, and she is under obligation to surrender or submit to his will and desire.

As he pointed that husband was right to have sexual intercourse with her even without her will or
consent. This comment is too harsh on married women. I think by the time when Prof. Pillai
pointed this he forgot that this provision is of penal code which has access only in India. And this
a country, where women got worship like a goddess. And in this modern era where every nation
is recognizing the sexual autonomy of women, we must have he came forward to offend the self-
esteem and dignity of women.

In the case of State of Karnataka v. krishnappa5, where it was held that sexual violence apart
from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a
female. It is a serious blow to her supreme honour & offends her self-esteem &dignity it
degrades and humiliates the victims.

Even in case of Independent though v. Union of India6, Justice Deepak Gupta held that can she
be deprived of her right to say yes or no to having sex with having her husband, even if he has
consented for the marriage? In my view, there is only one answer to this and the answer must be
a resounding NO.

It is also held in this case that, Constitutionally a female has equal as a male and no statute be
interpreted or understood to derogate from this position. If there is some theory that propounds
such an unconstitutional myth, then that theory deserves to be completely demolished.

In the case of Sakshi v. Union of India[3], the Supreme Court had to concede the inadequacies
5
(2000) 4 SCC 75
6
1999 CriLJ 5025
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with concerning law relating to rape and had suggested that the legislature should bring about
changes in the law. After passing the Criminal law amendment bill, 2013 rape was reformulated
as the most specific event where the House of People by an amendment tried to enlarged to the
ambit of rape and the perception by making oral and anal act as amounting rape.

The Domestic violence Act 2005, has to dispense numerous civil remedies and various providers
such as the cruelty and other matter are dealt under. The number of victims under the marital
rape scenario is being increased but the legislature is ignorant to criminalize such an offence.

The women are ignorant of what the actual scenario is and the law which are prevailing in the
Indian Penal Code for them. Moreover in case of Sichita Srivastava v. Chandigarh
Administration, where it was held that the right to make a reproductive choice was equated with
personal liberty under Article 21 of the Constitution, privacy, dignity and bodily integrity and
includes the right to abstain from procreating.

Exception 2 of Section 375 of the Indian Penal Code legalizes marital rape and violates the
fundamental rights of married women under Article 14, Article 19 and Article 21 of the
Constitution of India.

PRAYER
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IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED AND AUTHORITIES

CITED, THE COUNSEL FOR PETITIONER HUMBLY PRAYS THAT THE HON‟BLE SUPREME
COURT BE PLEASED

1.To declare theinstant matter is maintainable before the Hon’ble Court?

2. To declare Section 9, 13 (1-A) (ii) of the Hindu Marriage Act, 1955 and Order XXI Rule 32 and 33 of the
Code of Civil Procedure, 1908 is ex facie arbitrary and violates the fundamental rights under Article 14,
19 (1) (d) and 21 of the Constitution of India.

C. To declarer a decree of restitution of conjugal rights violates the right of privacy, right of mental and
physical health and right of dignity of a woman under Article 21 of the Constitution of India

D. To declare an act of the State can compel or induce a woman to surrender her fundamental right of
sexual and decisional autonomy which is intrinsic in the right to privacy and personal liberty under Article
21 of the Constitution of India.

E. to declare decree for restitution of conjugal rights forbids a person to exercise her right to decide
whether to have sexual intercourse with his/her partner/spouse thus violating her right to bodily
integrity and spatial and behavioral privacy

F. to declare exception 2 of Section 375 of the Indian Penal Code legalizes marital rape and violates the
fundamental rights of married women under Article 14, Article 19 and Article 21 of the Constitution of
India?

AND/OR

PASS ANY ORDER THAT THIS HON‟BLE COURT MAY DEEM FIT IN THE INTEREST OF
JUSTICE, EQUITY AND GOOD CONSCIENCE.

AND FOR THIS ACT OF KINDNESS, THE COUNSELS FOR THE

PETITIONER AS IN DUTY BOUND

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SHALL EVER PRAY.

COUNSEL FOR THE PETITIONERS

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