Memorial Kalki Devi Uoi Respondent

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Memorial - Kalki DEVI - UOI - Respondent

Bba. LLB(Hons.) (Indian Institute of Legal Studies)

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REGISTRATION NO. 1021706040120


ROLL NO. 102/BCOM/LLB/18005

_____________________________________
BEFORE THE HON’BLE SUPREME COURT OF INDIA

_____________________________________
UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA, 1950

_____________________________________
W.P. (PIL) NO ______ OF 2022

IN THE MATTER OF

KALKI DEVI PETITIONER

V.

UNION OF INDIA RESPONDENT

HUMBLY SUBMITTED BEFORE THE BENCH OF THIS HON’BLE SUPREME


COURT

_____________________________________
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COUNSEL FOR THE RESPONDENT

MEMORANDUM ON BEHALF OF THE RESPONDENT

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TABLE OF CONTENTS

INDEX OF AUTHORITIES...................................................................................................3

I. BOOKS...........................................................................................................................3
II. LEXICONS.................................................................................................................3
III. STATUTES..................................................................................................................3
IV. LEGAL DATABASE...................................................................................................3
LIST OF ABBREVIATIONS..................................................................................................4

STATEMENT OF JURISDICTION.......................................................................................6

STATEMENT OF FACTS.......................................................................................................7

STATEMENT OF ISSUES......................................................................................................8

SUMMARY OF ARGUMENTS..............................................................................................9

ARGUMENTS ADVANCED.................................................................................................11

1. WHETHER THE PRESENT PETITION IS MAINTAINABLE?.........................11


A. THAT THERE IS NO VIOLATION OF FUNDAMENTAL RIGHTS.................11
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?. .12
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?................................................................................14
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?..............................................................................................15
5. 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?..................................................17
PRAYER.................................................................................................................................18

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INDEX OF AUTHORITIES

I. BOOKS

Constitutional Law, Pandey, J.N., 8 TH Edition, 2014


II. LEXICONS

B.A. Garner., Black‟s Law Dictionary,6th edition

III. STATUTES

1. Constitution of India, 1950.


2. Indian Penal Code, 1860.
3. Hindu Marriage Act, 1955

IV. LEGAL DATABASE

1. www.indiancaselaws.org
2. www.indlaw.com
3. www.indiankanoon.org
4. www.judic.nic.in
5. www.lexisnexis.com

6.

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LIST OF ABBREVIATIONS

& And
@ at
AC Appeal Cases
AIR All India Reporter
Co. Company
CPC The Code Of Civil Procedure
Hon’ble Honourable
ICA Indian Contract Act
LJ Lord Justice
Rs. Rupees
SCR Supreme Court Report
Sec. Section
U.O.I Union of India

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TABLE OF CASES

1. A.K. Gopalan V State Of Madras Air 1950 Sc 27


2. Bhagwandas Gangasahai V. Union Of India And Ors Air 1956 Sc 175.
3. Budhan V. State Of Bihar (1955) 1 S.C.R 1045 (India).
4. Daryao V. State Of U.P Air 1961 Sc 1457.
5. Fertilizer Corporation Kamgar Union V. Union Of India, Air 1981 Sc 344.
6. Harvinderkaur V Harminder Singh, Air 1984 Delhi 66.
7. Mr.X V. Hospital Z, (1998) 8 S.C.C. 296.
8. Sareetha V. T. Venkatasubbaiah, Air 1983 Ap 356.
9. Saroj Rani V. Sudharshan,1984 Air 1562.
10. Shakilabanu V. Gulam Mustafa, Air 1971 Bom 166, 1970
11. State Of India.B V. Anwar Ali (1952) S.C.R 284 (India)
12. The Collector Of Malabar, Kozhikode And Ors.V Erimmal Ebrahim Hajee 1957
Air 688, 1957 Scr 970.

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STATEMENT OF JURISDICTION

The petitioner has invoked the jurisdiction of the Hon‟ble Supreme Court under Article 32 of
the Constitution of India 1950.

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STATEMENT OF FACTS

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.

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.

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.

The Family Court, on 20-07-2021, issued summon to Kalka Devi seeking her presence in the
proceedings before the Court.

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:

 Section 9 and Section 13 (1-A) (ii) of the Hindu Marriage Act, 1955; and
 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
 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.

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STATEMENT OF ISSUES

ISSUE 1

WHETHER THE PRESENT PETITION IS MAINTAINABLE?

ISSUE 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?

ISSUE 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?

ISSUE 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?

ISSUE 5

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?

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SUMMARY OF ARGUMENTS

Whether the present petition is maintainable?

It is humbly submitted before this Hon’ble Court that the writ petition submitted by the
petitioners is not maintainable. The petitioners' writ petition is not maintainable. There is no
infringement of a fundamental right as a result of the implementation of the impugned
ordinance, therefore the petition is frivolous.

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 the humble submission before the Hon’ble Court that the current issue, which includes
the provisions for restitution of conjugal rights included in Sections 9 and 13(1-A) (ii) of the
Hindu Marriage Act, 1955, is not in conflict with the idea of basic rights provided by Articles
14, 19(1) (d), and 21 of the Indian Constitution.

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 the humble submission before the Hon’ble Court that Sec 9 of the HMA does not
infringe on a woman's right to privacy, mental and physical health, or dignity as guaranteed
by Article 21 of the Indian Constitution.

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 behavioural privacy?

It is the humble submission before the Hon’ble Court that by dictating who a person should
live with, the remedy of restitution of conjugal rights does not violate a person's very basic
nature, their very being.

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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 the humble submission before the Hon’ble Court that sexual intercourse without the
consent of the wife is not rape. The term "sexual intercourse without wife's consent" is
neither specified nor demonstrated in Section 375 IPC.

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ARGUMENTS ADVANCED

1. WHETHER THE PRESENT PETITION IS MAINTAINABLE?

It is the humble submission before the Hon’ble Court that the writ petition submitted
by the petitioner is not maintainable. The petitioners' writ petition is not maintainable.
This petition must be viewed as a violation of the legal process, a waste of very
valuable judicial time that should be utilized to deliver justice to the righteous. In
view of the following facts and legal concerns, this petition is not maintainable:

A. THAT THERE IS NO VIOLATION OF FUNDAMENTAL RIGHTS

A person's right to remedy under Article 32 is only enforceable if his basic rights have
been violated, and there is no right to remedy if no fundamental rights have been
violated. This court has ruled that the violation of fundamental rights is the sine qua
non of the exercise of rights conferred by Article 32 of the Constitution.1

When considering a writ petition under Article 32, one of the first questions the
Hon’ble Court must evaluate is whether the petitioner's fundamental rights have been
violated. In Daryao v. State of U.P.2, it was held that: “the citizens are entitled to
appropriate relief under the provisions of Article 32 of the Constitution, provided it is
shown to the satisfaction of the Court that the Fundamental Right of the petitioner had
been violated.”

In A.K. Gopalan v State of Madras 3 and Bhagwandas Gangasahai v. Union of India


and Ors.4, it was held that the remedy under Article 32 is available only for
enforcement of the Fundamental Rights.

"No person shall be deprived of his life or personal liberty except according to
procedure established by law," according to Article 21 of the Indian Constitution. It is
not a breach of the right under Article 21 when a legal procedure is followed.

In The Collector of Malabar, Kozhikode and Ors.v Erimmal Ebrahim Hajee 5, it was
held that procedure established by law is one that is enacted by a union parliament or
1 Fertilizer Corporation Kamgar Union v. Union of India, AIR 1981 SC 344.
2 Daryao v. State of U.P AIR 1961 SC 1457.
3 A.K. Gopalan v State of Madras AIR 1950 SC 27.
4 Bhagwandas Gangasahai v. Union of India and Ors AIR 1956 SC 175.
5 The Collector of Malabar, Kozhikode and Ors.v Erimmal Ebrahim Hajee 1957 AIR 688, 1957 SCR 970.

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state legislature, and it must be legally valid. If such a legislation is valid when
someone is deprived of his personal liberty, then such deprivation is lawful in that
case, and he cannot complain of a violation of his fundamental rights.

It is humbly submitted that the restitution petition is maintainable because the two-
year period has not been completed; the wife left the house in 2017 and the restitution
petition was filed in July 2019; and under Section 125 CrPC, the wife is not entitled to
any maintenance from the husband if she refuses to live with him for no good reason.

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?

There were intense arguments in Parliament about whether the provision for
restitution of conjugal rights should be included in the Special Marriage Act of 1954
and the Hindu Marriage Act of 1955. It's worth noting that, as a result of these case
laws, the constitutional legitimacy of section 9 of the Hindu Marriage Act 1955 had
become a subject matter of debate in 1983-1984.

 The constitutionality of the provision for conjugal restitution was contested in


the Andhra Pradesh High Court in Sareetha v. T. Venkatasubbaiah 6. In this
case, Sareetha stated that section 9 of the Act is likely to be knocked down as a
violation of India's basic rights, notably Articles 14 and 21 of Part III of the
Constitution. Section 9 is a cruel and barbarous remedy, according to Justice
Choudary, as it violates the right to privacy and human dignity established by
Article 21 of the Constitution. It denies women the right to choose when,
when, and how their bodies will be used to procreate another human being.
The lady loses control of her most personal choices. Therefore, a decision of
restitution of marital rights clearly violates the right to privacy protected by
Article 21. As a result the section 9 of Hindu marriage act 1955 was
unconstitutional.

6 Sareetha v. T. Venkatasubbaiah, AIR 1983 AP 356.

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 Justice Rotagi in HarvinderKaur v Harminder Singh 7, recognised that “the


legislature has created restitution of conjugal rights as an additional ground for
divorce”.
 In ShakilaBanu v. Gulam Mustafa8, 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 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.”
 Ultimately Supreme Court in Saroj Rani v. Sudharshan9, delivered a ruling that
was consistent with the Delhi High Court's views, upholding the constitutional
validity of Section 9 of the Hindu Marriage Act, 1955, and overturning the
verdict in Sareetha v. T. Venkatasubbaiah. Here are a few lines from the Saroj
Rani case decision.
The court observed that the object of the section is to bring about cohabitation
between estranged parties so that they can live together. That in the privacy of
home and married life neither article 21 nor article 14 has any place.

Hence, 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 not ex facie arbitrary and does not
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 that the decree of restitution does not infringe the right to
privacy or dignity. If the individual who has withdrawn from society, it presents a fair

7 HarvinderKaur v Harminder Singh, AIR 1984 Delhi 66


8 ShakilaBanu v. Gulam Mustafa, AIR 1971 Bom 166, 1970
9 Saroj Rani v. Sudharshan,1984 AIR 1562

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cause and absolves himself of the task of adequately defending himself, the petitioner
will be denied the decree of restitution.

In view of the aforementioned circumstances, it is clear that it does not infringe on the
right to privacy, which is an integral part of Article 21, because the sole purpose of
marriage is to cohabit and live with one another and complete one another. In a
situation where one spouse abandons the other without any just reason, it is against the
institution of marriage and its stability. As a result, restitution is a vital provision to
give marriage one more try before concluding that it is beyond restoration and divorce
is the only option.

As a result, it is most humbly submitted to the Hon'ble Court that Exception 2 to


Section 375 IPC provides the institution of marriage privacy. The right to life does not
presuppose unlimited liberty, and it can be limited to a fair extent if justified. The
object isto preserve the sacred institution of marriage. Hence, it is most humbly
submitted that the impugned Section is consistent with Article 21 of the Constitution.

Taking into account the the above arguments, it can be concluded that in a situation
where two people's fundamental rights conflict, the right that would advance public
morality or the public interest would be enforced solely through the judicial process,
because moral considerations cannot be ignored.10

10 Mr.X v. Hospital Z, (1998) 8 S.C.C. 296.

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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?

In the 19th century, India accepted British common law's remedy of recovery of
marital rights. Wives were regarded as the property of their husbands at the time. In
1947, an enactment in the United Kingdom banned the same remedy. The remedy of
constitutional right restoration has been contested multiple times since then.

In the case of T. Sareetha v. T.V. Subbaiah 11, 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 HarvinderKaur v. Harmander Singh12, 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 the two abovementioned cases were decided, the Hon’ble Supreme Court held in
the case of Saroj Rani v. Sudarshan Kumar13, “where a wife had applied for restitution
after being turned out from the house, it was held that section 9 is constitutional. The
purpose of this section is to offer to induce husband and wife to live together and settle
their disputes in a friendly manner.”

The Andhra Pradesh High Court ruled that enforcing a section 9 decree compels a
person to have sexual relations with her spouse, robbing her of sovereignty over her
own body. but the Delhi High Court criticized this view and held that the impugned
section aimed at “consortium” and not at “cohabitation”. “Consortium” has been
defined as “companionship, love, affection, comfort, mutual services, sexual
intercourse”. The Delhi High Court held that sexual relations are not the ultimate goal
of a marriage and that restitution of conjugal rights aims only at compelling the parties

11 T. Sareetha v. T.V. Subbaiah, AIR 1983 AP 356.


12 HarvinderKaur v. Harmander Singh, AIR 1984 Delhi 66.
13 Saroj Rani v. Sudarshan Kumar, 1984 AIR 1562.

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to a marriage to live in the same household and does not compel them to have sexual
intercourse.

The decree does not violate bodily integrity and spatial and behavioural privacy.

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5. 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 before this Hon’ble court having sexual relations with your wife
without her consent is not rape. The word "sexual intercourse without wife's
permission" is not defined or shown in Section 375 IPC.

Therefore, rape under section 375 is only committed if the conduct falls inside one of
the seven exceptions to the statute. To begin with, it was against her will; Second,
without her permission; Third, obtaining her agreement by instilling dread of death in
her; Fourth, permission is provided under the mistaken impression that another man is
her lawfully wedded spouse; Fifth, when permission is provided due to insanity,
alcoholism, or other factors; Sixth, with or without her consent, if she is under the age
of sixteen, and seventh, if she is unable to communicate her consent.

It is respectfully submitted before this Hon’ble bench that Section 375 of the IPC
divides women into two groups: married and unmarried women. Art. 14 forbids class
legislation and any categorization that is not acceptable for legislative objectives. 14 If
the legislature takes care to fairly classify people for legislative purposes and treats all
members of a well-defined group similarly, it cannot be accused of denial of equal
protection on the basis that the legislation does not apply to others.15

Thus, it is humbly submitted in the light of these judgments that a married and
unmarried lady cannot get the same treatment. Furthermore, if forcible intercourse is
classified as rape, it will be used arbitrarily against males, violating Article 15 of the
Constitution. As a result, it is respectfully urged to this Honble bench that Section 375
of the IPC establishes a legitimate distinction between married and unmarried women.
As a result, it does not violate Article 14 of the Indian Constitution.

14 Budhan v. State of Bihar (1955) 1 S.C.R 1045 (India).


15 State of INDIA.B v. Anwar Ali (1952) S.C.R 284 (India).

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PRAYER

WHEREFORE, in light of the facts stated, issues raised, arguments advanced and authorities
cited, the counsel for the respondent humbly prays that this Hon’ble Court be pleased that:

 This present petition is not maintainable


 It does not violate the fundamental rights under Article 14 and Article 21 of the
Constitution of India

AND/OR pass any other order/orders as this Hon’ble Court deems fit and proper in the
circumstances of the given case and in the light of Justice, Equity and Good Conscience and
thus renders justice.

And for this act of kindness and justice the Counsel shall be duty bound and forever pray.

All of which is most humbly and reverently submitted.

COUNSEL FOR THE RESPONDENT

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