III Year LL.

B - Semester-IV (2024)

MOOT COURT EXERCISE –

MOOT PROBLEM 1

Name: Srijit Talukdar

1
 MOOT COURT EXERCISE - PROBLEM 1

IN THE HON'BLE SUPREME COURT OF INDIVA

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIVA

W.P. (CIVIL) NO. /2024

IN THE MATTER OF ARTICLE 14, 21, AND 32 OF THE CONSTITUTION OF INDIVA

LIT FOUNDATION ................................................................................................ PETITIONER

UNION OF INDIVA.............................................................................................. RESPONDENT

BEFORE SUBMISSION TO HON'BLE CHIEF JUSTICE AND HIS COMPANION JUSTICES OF THE
HON'BLE SUPREME COURT OF INDIVA

MEMORIAL ON BEHALF OF RESPONDENT

1. LIST OF ABBREVIATIONS .....................................................................................................................................4

2. INDEX OF AUTHORITIES .........................................................................................................................................5

3. STATEMENT OF JURISDICTION..............................................................................................................................7

4. STATEMENT OF FACTS .............................................................................................................................................8

5. ISSUES RAISED ............................................................................................................................................................9

6. SUMMARY OF ARGUMENTS ................................................................................................................................ 10

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

ISSUE I: WHETHER THE PETITION FILED BEFORE THE HON’BLE COURT IS MAINTAINABLE .... 11

[I.1] THE COURT HAS NO LOCUS STANDI IN CASE OF VIOLATION OF FUNDAMENTAL RIGHTS .......11

[I.2] THE COURT SHOULD EXERCISE JUDICIAL RESTRAINT .......................................................... 12

[I.3] EXHAUSTION OF ALTERNATE REMEDY IS A PRE-REQUISITE ................................................. 14

ISSUE II: WHETHER EXCEPTION 2 TO SECTION 375 OF INDIVAN PENAL CODE IS ULTRA VIRES

THE CONSTITUTION OF INDIVA ............................................................................................................................ 14

[II.1] THE IMPUGNED SECTION IS NOT VIOLATIVE OF ART. 14 OF THE CONSTITUTION ................. 15

[II.2] THE IMPUGNED PROVISION IS IN CONSONANCE WITH ARTICLE 21 OF THE CONSTITUTION ... 16

8. PRAYER....................................................................................................................................................................... 19

3
 LIST OF ABBREVIATIONS

& And

AIR All Indiva Reporter

Art. Article

Anr Another

Assn Association

Bom Bombay High Court

BNSS Bharatiya Nagarik Suraksha Sanhita

Del Delhi High Court

Ed. Edition

FIR First Information Report

BNS Bharatiya Nyaya Sanhita

NGO Non- Governmental Organisation

Ors. Others

Para Paragraph

PIL Public Interest Litigation

DV Act Domestic Violence Act.

SC Supreme Court

SCC Supreme Court Cases

Sec. Section

UOI Union of Indiva

Vol Volume

4
 INDEX OF AUTHORITIES

CASES
1. A.M. Mathur v Pramod Kumar Gupta, A.I.R. 1990 S.C. 1737 ................................................. 12
2. Academy of Nutrition Improvement v Union of India, (2011) 8 S.C.C. 274 ............................ 13
3. Academy of Nutrition Improvement v Union of Indiva, (2011) 8 S.C.C. 274. ......................... 13
4. Amit Kumar v Navjot Dubey, 2016......................................................................................... 15
5. Association of Drugs and Pharmaceuticals, Manufacturers, A.P. v A.P. Health, Medical,
Housing and Infrastructure Development Corporation, Hyd., 2002 (2) ALD 609..................... 13
6. Delhi Financial Corporation v Rajiv Anand, 2004 (11) S.C.C. 625 .......................................... 12
7. Dr. Kulbhushan Kumar v Raj Kumari, A.I.R. 1970 S.C. 234. .................................................. 15
8. Fertilizer Corporation Kamgar Union (Regd.) v Union of Indiva, A.I.R. 1981 S.C. 344. .......... 11
9. Gobind Singh v State of Madhya Pradesh, (1975) 2 S.C.C ...................................................... 17
10. Government of Andhra Pradesh v Road Rollers Owners Welfare Association, 2004 (6) S.C.C.
210 ......................................................................................................................................... 12
11. Gurudevdatta VKSSS Maryadit v State of Maharashtra, A.I.R. 2001 S.C. 1980 ........................ 12
12. Harvinder Kaur v Harmander Singh, A.I.R. 1984 Del 66......................................................... 17
13. Hitrashak Samiti v Union of Indiva, A.I.R. 1990 S.C. 851 ....................................................... 11
14. Independent Thought v Union of India, A.I.R. 2017 S.C. 4904................................................ 14
15. J.P. Bansal v State of Rajasthan, A.I.R. 2003 S.C. 1405 ........................................................... 12
16. Javed v State of Haryana, A.I.R. 2003 S.C. 3057..................................................................... 15
17. Jinia Keotin v K.S. Manjhi, 2003 (1) S.C.C. 730..................................................................... 12
18. Joby v George, 2010 (2) SCALE 172 ...................................................................................... 11
19. Justice K.S. Puttaswamy (Retd.) v Union of India, (2017) 10 S.C.C........................................ 16
20. Kalyan Dey Choudhary v Rita Dey Choudhary, A.I.R. 2017 S.C. 2383 ................................... 15
21. Khursheed Ahmad Khan v State of U.P, A.I.R. 2015 S.C. 1429 ............................................... 16
22. Laxmi Khandasri v State of Uttar Pradesh, A.I.R. 1981 S.C. 873 ............................................ 15
23. Malak Singh v State of Punjab and Haryana, 1981 A.I.R. 760 ................................................. 17
24. Malcom Lawrence Cecil v Union of India A.I.R. 1975 S.C. 1269 ........................................... 14
25. Miten v Union of India, (2008) 6 Bom C.R. 124 ..................................................................... 15
26. P.V. Surender Babu v Prohibition and Excise Superintendent, Chittoor, 1998 (5) A.L.T 640 .... 14
27. Patangrao Kaddam v Prithviraj Sajirao Yadav, A.I.R. 2001 S.C. 1121 ..................................... 12
28. R. S. I. D. I. Corpn. v S.S. Co-op. Hsg. Society, Jaipur, A.I.R. 2013 S.C. 1226 (1235) ............. 11
29. Rabindra Nath v Union of India, A.I.R. 1970 S.C. 470. ........................................................... 14
30. S. Mehta v State of Maharashtra, 2001 (8) S.C.C. 257.............................................................. 12

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31. Sakshi v Union of Indiva, (2004) 5 S.C.C. 518........................................................................ 12
32. Sanju Devi v State of Bihar, 2017 CriLJ 2305 ......................................................................... 15
33. Savitaben Somabhat Bhatiya v State of Gujarat, A.I.R. 2005 S.C. 1809 ................................... 12
34. State of Gujarat v Mirzapur Moti Kureshi Kassab Jamat, A.I.R. 2006 S.C. 212........................ 13
35. State of Haryana v Jai Singh, A.I.R. 2003 S.C. 1696 ............................................................... 15
36. State of Jharkhand v Govind Singh, JT 2004 (10) S.C. 349 ..................................................... 12
37. State of West Bengal v Anwar Ali Sarkar, A.I.R. 1952 S.C. 75. ............................................... 15
38. Supreme Court Women Lawyer’s Assn. v Union of Indiva, (2016) 3 S.C.C. 680...................... 12
39. Tilok Chand & Motichand v H. B. Munshi, A.I.R. 1970 SC 898 ............................................. 14
40. Union of India v ..................................................................................................................... 14
41. Union of India v R. Reddappa, (1993) 4 S.C.C. 269................................................................. 14
42. Vinita Saxena v Pankaj Pandit, 2006 (2) C.T.C. 328................................................................ 16
43. Welfare Assn. ARP v Ranjit P Gohil, (2003) 9 S.C.C. 358....................................................... 15

STATUTES

1. Bharatiya Nyaya Sanhita, 2023

2. Bharatiya Nagrik Suraksha Sanhita, 2023

3. Constitution of India, 1950

BOOKS

1. Basu, Durga Das, Commentary on The Indian Constitution, (14th Ed. 2009) Vol. 1
2. Black’s Law Dictionary, (6th Ed. 1990)
3. Datar, Arvind P., Commentary on the Constitution of India.
4. H.M. Seervai, Constitutional Law Of India, (Universal Law Publishing Company, Vol.-
1, 4th ed., 2013).
5. Jain, M.P., Indian Constitutional Law, (7th Ed. 2014)
6. Jain, M.P., Principles of Administrative Law, (7th Ed. Lexis Nexis) Vol. 1,2.

6
 STATEMENT OF JURISDICTION

The Petitioner has invoked the jurisdiction of this Hon’ble Supreme Court of Indiva under Article 32
of the Constitution of Indiva.

Art. 32 of the Constitution of Indiva reads as -

“Article 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” The Respondent is contesting the Jurisdiction of the Court.”

The Respondent contests the jurisdiction of this Hon’ble Court in the present matter.

7
 STATEMENT OF FACTS

The LIT Foundation, based in Dahelvi, Indiva, is an NGO dedicated to protecting women from
domestic violence, offering legal support to victims. The foundation discovered that many cases of
domestic violence included non-consensual intercourse by husbands. However, they could not
prosecute these husbands for rape due to Exception II of Section 63 of the Bharatiya Nyaya Sanhita,
2023, which provides immunity for marital rape.

In response, the foundation filed a Public Interest Litigation (PIL) in the High Court of Dahelvi,
seeking to challenge this exception and advocate for the criminalization of marital rape.
Simultaneously, a separate petition was filed by Mr. Furkan, seeking to quash an FIR under Section
64 read with sections 3 and 4 of the POCSO Act. The High Court clubbed both cases but delivered a
split judgment, leaving the issue unresolved.

Contrasting decisions emerged from other state High Courts in Indiva: the High Court of Karmataka
ruled that a man can be prosecuted for raping his wife despite the statutory immunity, while the High
Court of Chhatisghar held the opposite view. The Supreme Court of India's earlier ruling in
Independent Thought v. Union of India recognized sexual intercourse with a wife aged 15 to 18 as
rape, but the marital rape exception remains in place under the current law.

Given the legal uncertainty surrounding marital rape, the LIT Foundation has filed a PIL before the
Supreme Court of Indiva, pleading to criminalize marital rape and challenge the exception in the
Bharatiya Nyaya Sanhita. The Union of India is contesting this plea.

8
 ISSUES RAISED

~ ISSUE I ~

WHETHER THE WRIT PETITION IS MAINTAINABLE IN THE SUPREME COURT OF INDIVA.

~ ISSUE II ~

WHETHER EXCEPTION 2 TO SECTION 63 OF INDIVAN PENAL CODE IS ULTRA VIRES THE

9
 SUMMARY OF ARGUMENTS

ISSUE I: WHETHER THE PETITION FILED BEFORE THE HON’BLE COURT IS MAINTAINABLE

It is humbly contended before this Hon’ble Supreme Court that the current petition filed under
Art. 32 of the Constitution of Indiva is not maintainable [1.] the Petitioner in the present
matter does not have the locus standi to challenge the impugned provision as there is no
violation of fundamental rights enshrined in Part III of the Constitution of Indiva [2.] The
judiciary is not empowered to hear such petitions and, [3.] pre-requisite of exhaustion of all
alternate remedies is not met.

ISSUE II: WHETHER EXCEPTION 2 TO SECTION 375 OF INDIVAN PENAL CODE IS ULTRA
VIRES THE CONSTITUTION OF INDIVA.

It is humbly contended that Exception 2 to Sec. 63 is not ultra vires the constitution of Indiva
as it does not infringe upon the fundamental rights enshrined in Part III of the Constitution.
The contentions in this regard are: [1.] Exception 2 to Sec. 63 does not infringes Art. 14 of
the Constitution of Indiva; [2.] the impugned provision is in consonance with Art. 21 of the
Constitution of Indiva.

10
 ARGUMENTS ADVANCED

ISSUE I: WHETHER THE PETITION FILED BEFORE THE HON’BLE COURT IS MAINTAINABLE
1. It is humbly contended before this Hon’ble Supreme Court that the current petition filed under
Art. 32 of the Constitution of Indiva is not maintainable as [1.] the Petitioner in the present matter
does not have the locus standi to challenge the impugned provision as there is no violation of
fundamental rights enshrined in Part III of the Constitution of Indiva [2.] The judiciary is not
empowered to hear such petitions and, [3.] pre-requisite of exhaustion of all alternate remedies
is not met.

[I.1] THE COURT HAS NO LOCUS STANDI IN CASE OF VIOLATION OF FUNDAMENTAL RIGHTS.

2. Maintainability of a writ petition under Art. 32 which is correlated to the existence and
violation of a fundamental right is not always to be confused with the locus to bring proceeding
under Art. 32.1 Requisite locus standi is needed to invoke this Hon’ble Court’s writ jurisdiction
in order to protect their fundamental rights and this cannot be done where there is no prima
facie violation.2 A writ under Art. 32 does not lie to create or establish a legal right but, to
enforce a fundamental right that has already been established. 3 In order to establish the
violation of a Fundamental Right, the Court has to consider the direct and inevitable
consequences of the action which is sought to be remedied or the guarantee of which is sought
to be enforced.4

3. The Petitioner in this case does not have the requisite locus standi to challenge Exception II of
Section 63 of the Bharatiya Nyaya Sanhita, 2023,5 as there is no direct violation of fundamental
rights evident in their claim. The foundation’s argument is predicated on the broader issue of
criminalizing marital rape, but it fails to establish how the specific legal exception directly
impacts their fundamental rights. For a petition under Article 32, it is necessary to show a clear
and direct infringement of a fundamental right, which is not sufficiently demonstrated in this
case.

4. Therefore, it is submitted that the petitioner in this case, has no locus standi to file the petition.

1
Fertilizer Corporation Kamgar Union (Regd.) v Union of India, A.I.R. 1981 S.C. 344.
2
Joby v George, 2010 (2) SCALE 172.
3
R. S. I. D. I. Corpn. v S.S. Co-op. Hsg. Society, Jaipur, A.I.R. 2013 S.C. 1226 (1235).
4
Hitrashak Samiti v Union of India, A.I.R. 1990 S.C. 851.
5
Section 63, Bharatiya Nyaya Sanhita, 2023.

11
 [I.2] THE COURT SHOULD EXERCISE JUDICIAL RESTRAINT

5. It is humbly contended that the Hon’ble Supreme Court, in the present matter, should exercise
judicial restraint as [A.] The Judiciary cannot create a new offence, [B.] It is a matter of state
policy and, [C.] the Courts should follow the doctrine of stare decisis.

[I.2.A] The Judiciary cannot create a new offence.

6. It is contended that the judicial restraint is necessary for the administration of justice, as
established in the case of A.M. Mathur v Pramod Kumar Gupta.6 Assuming there is a defect or
an omission in the words used by the legislature, the Court cannot correct or make up the
deficiency.7 Where interpretation of law is clear and unambiguous the Court should not seek to
amend the law in the garb of interpretation. 8 The Courts neither create offences nor do they
introduce or legislate punishments. 9 The Court in the case of Savitaben Somabhat Bhatiya v
State of Gujarat10, held that however desirable it may be to take note of the plight of an
unfortunate woman, any inadequacy in law can be amended only by the Legislature. This view
against dismissing petitions demanding creation of a new offence is not recent but has been
consistently affirmed by this Hon’ble Court in a plethora of judgements. 11

7. In line with this, the criminalization of the exception challenged above would lead to the creation
of the new offence i.e. marital rape within the meaning of Sec. 63 which can be amended only
by legislature. The court is bound to give meaning to the words of a provision, irrespective of its
consequences.12 It is therefore, submitted that there should be judicial restraint in this connection,
and the courts should refrain from hearing such petition relating to the creation of a new offence.

[I.2.B] It is a matter of State Policy.

6
A.M. Mathur v Pramod Kumar Gupta, A.I.R. 1990 S.C. 1737.
7
Delhi Financial Corporation v Rajiv Anand, 2004 (11) S.C.C. 625; State of Jharkhand v Govind Singh, JT 2004
(10) S.C. 349.
8
Government of Andhra Pradesh v Road Rollers Owners Welfare Association, 2004 (6) S.C.C. 210; J.P. Bansal v
State of Rajasthan, A.I.R. 2003 S.C. 1405; Jinia Keotin v K.S. Manjhi, 2003 (1) S.C.C. 730.
9
Supreme Court Women Lawyer’s Assn. v Union of India, (2016) 3 S.C.C. 680.
10
Savitaben Somabhat Bhatiya v State of Gujarat, A.I.R. 2005 S.C. 1809.
11
Sakshi v Union of India, (2004) 5 S.C.C. 518; Jinia Keotin v K.S. Manjhi, 2003 (1) S.C.C. 730.
12
Gurudevdatta VKSSS Maryadit v State of Maharashtra, A.I.R. 2001 S.C. 1980; S. Mehta v State of Maharashtra,
2001 (8) S.C.C. 257; Patangrao Kaddam v Prithviraj Sajirao Yadav, A.I.R. 2001 S.C. 1121.
13
Association of Drugs and Pharmaceuticals, Manufacturers, A.P. v A.P. Health, Medical, Housing and
Infrastructure Development Corporation, Hyd., 2002 (2) ALD 609.

12
 policy actions is not within its jurisdiction, as was reiterated in the recent Iodine Salt Case.14

9. Unless there is prima facie evidence to prove that exercise of discretion has been arbitrary,
unreasonable or mala fide, the Court cannot step into the shoes of the Government to decide the
validity of a policy.15 It is a matter of public policy that the Court cannot permit litigations on the
issues raised in perpetuity, as no public undertaking will ever succeed if such a practice is
encouraged.16

10. It humbly contended that, it is the policy of the State to enact the legislation, if the need be, to
deal with the offence of marital rape. It is the conscious policy decision of the State to not alter
the definition of the impugned provision challenged in the present matter. Being the matter of
State policy, it would be unfair for the Court to hold the impugned provision unconstitutional
without any justifiable grounds. It is neither within the domain of the Courts nor the scope of
judicial review to embark upon an enquiry as to whether a particular public policy was wise or
whether something better could be evolved.

11. Thus, it is humbly submitted that the policy decision of the Government regarding the exception
granted to Sec. 63 of BNS cannot be questioned before the Court of law .

[I.2.C] Doctrine of stare decisis must be followed.

12. Stare decisis et non quieta movere is a Latin phrase which means “to stand by decided cases; to
uphold precedents; to maintain former adjudication.”17 It is contended that doctrine of stare
decisis is to maintain consistency and avoid uncertainty. The very objective of this principle of
law is to operate the province of precedents. 18

13. It is contended that impugned provision is constitutionally valid as this provision has been
previously challenged and the Supreme Court has upheld its validity on the grounds of it being a
settled law.19 If the Court has applied judicial mind and its precious time in interpretation of law,
the Court should not deviate from such precedents unless there are compelling reasons for the
same. Thus, the judicial probity would require the Courts to follow the ratio laid down in these
cases and not to revisit the validity of the aforementioned provisions of law in the absence of any
glaring irregularity in these binding precedents of this Court.

14
Academy of Nutrition Improvement v Union of India, (2011) 8 S.C.C. 274.
15
State of M.P. v Nandlal Jaiswal, (1986) 4 S.C.C. 566.
16
Sushila Devi v Ramnandan Prasad, A.I.R. 1976 S.C. 177
17
State of Gujarat v Mirzapur Moti Kureshi Kassab Jamat, A.I.R. 2006 S.C. 212
18
Supra at 17.
19
Independent Thought v Union of India, A.I.R. 2017 S.C. 4904.

13
14. Hence, it is submitted that PIL filed by the Petitioner is not maintainable.

[I.3] EXHAUSTION OF ALTERNATE REMEDY IS A PRE-REQUISITE.

15. The Supreme Court must administer justice in accordance with the principles of equality, justice,
and good conscience, ensuring that the rights of respondents are not unjustly deprived. 20 The
principle of exhaustion of alternative remedies dictates that a court should not issue a prerogative
writ when an adequate alternative remedy is available. 21

16. Protection provided by the High Court under Article 226 is broader than under Article 32,
covering not only fundamental rights but also of any legal rights. 22 The Supreme Court has
increasingly discouraged petitions under Article 32 when an alternative remedy under Article
226 is available, emphasizing the importance of exhausting all lower court remedies first to
maintain confidence in the judicial hierarchy and manage case pendency. 23

17. The present writ petition is therefore not maintainable before this Hon’ble Court. Filing it directly
under Article 32, instead of utilizing the alternative remedy available through the High Court,
would waste the Court’s valuable time and is not considered an appropriate or effective remedy
in this instance.

18. Therefore, it is submitted that the current PIL filed by the petitioner is not maintainable before
this Hon’ble Court as the Petitioner in the present matter does not have the locus standi to
challenge the impugned provision, the judiciary is not empowered to hear such petitions and they
have not met the pre-requisite of Exhausting all the alternative remedies before coming to the
Supreme Court.

ISSUE II: WHETHER EXCEPTION 2 TO SECTION 375 OF INDIVAN PENAL CODE IS ULTRA
VIRES THE CONSTITUTION OF INDIVA.
19. It is humbly contended that Exception 2 to Sec. 63 is not ultra vires the constitution of Indiva as
it does not infringe upon the fundamental rights enshrined in Part III of the Constitution. The
contentions in this regard are: [1.] Exception 2 to Sec. 63 does not infringes Art. 14 of the
Constitution of Indiva; [2.] the impugned provision is in consonance with Art. 21 of the

20
Malcom Lawrence Cecil v Union of India A.I.R. 1975 S.C. 1269; Rabindra Nath v Union of India, A.I.R. 1970
S.C. 470.
21
Tilok Chand & Motichand v H. B. Munshi, A.I.R. 1970 SC 898.
22
Union of India v R. Reddappa, (1993) 4 S.C.C. 269.
23
P.V. Surender Babu v Prohibition and Excise Superintendent, Chittoor, 1998 (5) A.L.T 640; Union of India v
T.R. Varma, A.I.R. 1957 S.C. 882.

14
 Constitution of Indiva.

[II.1] THE IMPUGNED SECTION IS NOT VIOLATIVE OF ART. 14 OF THE CONSTITUTION

20. Art. 14 forbids class legislation, but permits reasonable classification of persons, objects and
transactions by the Legislature for the purpose of meeting specific ends.24 To classify people and
groups reasonably, the Apex Court in State of West Bengal v Anwar Ali Sarkar25 laid down the
following two requisites-

a. The classification must be based upon an intelligible differentia.26

b. The differentia should have a reasonable and rational nexus with the object of the law
sought to be achieved.27

21. Exception 2 to Sec. 63 classifies women into two categories based on their marital status- married
and unmarried. This classification is based on intelligible differentia as the status of a married
and unmarried woman in the society is distinct, and thus treating them alike, is contra the
Constitutional equality.28 Married woman and unmarried woman have separate rights like rights
of inheritance, rights of maintenance, and rights of residence in their matrimonial home. 29 The
social position and family responsibilities of married women are far more different. Thus, the
classification of a ‘married’ and an ‘unmarried’ woman is reasonable and based on intelligible
differentia.

22. Furthermore, the rational nexus sought via this classification is to ‘protect the institution of
marriage.’30 The institution of marriage occupies an important place and has an important role
to play in the society,85 and the Courts must make all possible endeavours in the interest of the
individuals and enable them to live peacefully. 31

23. It is therefore submitted that Exception 2 to Section 63 is based on intelligible differentia and
seeks to achieve the objective of preserving the institution of marriage which runs parallel to the
judiciary and legislatures intent. Thus, classification in the impugned exception is just, fair and

24
Laxmi Khandasri v State of Uttar Pradesh, A.I.R. 1981 S.C. 873.
25
State of West Bengal v Anwar Ali Sarkar, A.I.R. 1952 S.C. 75.
26
State of Haryana v Jai Singh, A.I.R. 2003 S.C. 1696.
27
Welfare Assn. ARP v Ranjit P Gohil, (2003) 9 S.C.C. 358; Javed v State of Haryana, A.I.R. 2003 S.C. 3057.
28
Kalyan Dey Choudhary v Rita Dey Choudhary, A.I.R. 2017 S.C. 2383; Amit Kumar v Navjot Dubey, 2016
S.C.C. OnLine 523; Sanju Devi v State of Bihar, 2017 CriLJ 2305; Dr. Kulbhushan Kumar v Raj Kumari, A.I.R.
1970 S.C. 234.
29
Supra at 28.
30
Miten v Union of India, (2008) 6 Bom C.R. 124.
31
Khursheed Ahmad Khan v State of U.P, A.I.R. 2015 S.C. 1429.

15
 reasonable, satisfies the twin tests of a valid classification and has been drafted by the legislature
after due application of mind. Hence, Exception 2 to Sec. 63 is reasonable, and is not ultra vires
the provisions of Article 14 of the Constitution of Indiva.

[II.2] THE IMPUGNED PROVISION IS IN CONSONANCE WITH ARTICLE 21 OF THE

24. It is humbly contended before the Hon’ble Court that Exception 2 of the Section 63 of the BNS
dealing with the intercourse between a husband and his wife, does not amount to rape as it is in
line with the Constitution of Indiva and does not violate any rights of the married women. The
contentions in this regard are three-fold. [A.] Exception 2 to Section 63 is in consonance with
Art. 21 of the Constitution. [B.] Equitable legislative provisions exist for giving protection to the
married women.

[II.2.A] The impugned provision is in line with Article 21 of the Constitution.

25. A citizen has a right to safeguard the privacy of his family and marriage and the impugned
provision protects the same.32 It was held by the judiciary in the case of Vinita Saxena v Pankaj
Pandit33 that in case of rape if there is an act of sexual intercourse, it is without consent of the
women, however, a marriage is solemnized fully by choice and enthusiastic agreement of both
the man and woman with full knowledge of friends and family and not by fraud or accident or
force. Having given the consent to marriage, then by definition wife is making conscious decision
to keep sexual relations with her husband.34 Therefore, it can be inferred that sexual intercourse
between two spouses cannot be equated to rape where the victim is unknown and the consent is
absent, which is not true in case of marital intercourse between two consenting individuals known
to each other.

26. Arguendo, even if the exception prima facie infringes upon Art. 21, even then it is according to
the procedure established by law.35 The right to privacy can be overridden, provided there is
compelling State interest, like for protection of the institution of the marriage as in the present
matter.36 Privacy includes at its core the preservation of personal intimacies, the sanctity of
family life, marriage, procreation, the home and sexual orientation. 37 In the case of Harvinder

32
Justice K.S. Puttaswamy (Retd.) v Union of India, (2017) 10 S.C.C.
33
Vinita Saxena v Pankaj Pandit, 2006 (2) C.T.C. 328.
34
Id.
35
Malak Singh v State of Punjab and Haryana, 1981 A.I.R. 760.
36
Gobind Singh v State of Madhya Pradesh, (1975) 2 S.C.C.
37
Supra at 32.

16
 Kaur v Harmander Singh,38 it was held that introduction of Constitutional law at home is highly
inappropriate and will prove to be a ruthless destroyer of the marriage institution and all that it
stands for. In the privacy of the home and the married life neither Art. 21 nor Art. 14 has any
place.

27. Therefore, in light of the above contentions it is submitted that the impugned provision is not
unconstitutional as it is according to the procedure established by law and protects the right to
privacy of the couple is just, and hence should not be removed.

[II.2.B] Presence of Allied Legislative Provisions for Married women

28. Under the current legal framework, sexual acts by a man with his own wife are not classified as
an offense according to Section 8539 of the Bharatiya Nyaya Sanhita and Section 22240 of the
Bharatiya Nagarik Suraksha Sanhita. However, the Protection of Women from Domestic
Violence Act, 2005 (DV Act) addresses issues where a husband inflicts harm, including physical
or sexual abuse, upon his wife. Under Section 3 of the DV Act, 41 if a husband endangers his
wife's health, safety, or well-being, he can be subject to a protection order and required to pay
compensation. The Act’s definition of ‘sexual abuse’ includes any conduct of a sexual nature
that degrades or violates a woman's dignity.

29. Section 85 of the BNS addresses cruelty by a husband or his relatives, where cruelty is defined
as conduct likely to drive a woman to suicide or cause significant harm to her physical or mental
health. Marital rape, while addressed under Section 85, is not explicitly recognized as a separate
criminal offense. The law treats marital rape as grounds for divorce under personal law,
emphasizing that any creation of new offenses or punishments remains within the legislative
domain.

30. The scope of the DV Act and Section 85 is broader than the narrow definition of rape under
Section 63. These provisions encompass a wider range of abuses and offer protection beyond the
limitations of the specific rape definition. Consequently, marital rape is covered under the
broader cruelty provisions rather than as a distinct crime.

31. It is also contended that laws providing maintenance, alimony, and residence rights specifically
for married women are designed for their protection and may not necessarily apply to other

38
Harvinder Kaur v Harmander Singh, A.I.R. 1984 Del 66.
39
Section 85 of the Bharatiya Nyaya Sanhita, 2023.
40
Section 222 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
41
Section 3 of the Domestic Violence Act, 2005.

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 categories of women. Given the existing legal provisions and interpretations, the argument
concludes that the impugned provision is not unconstitutional, affirming that existing laws
adequately protect married women without requiring a new legal category for marital rape.

32. Therefore, it is submitted that Exception 2 to Sec. 63 is not ultra vires the constitution of Indiva
as it does not infringe Art. 14 and 21 of the Constitution of Indiva and there exists equitable
legislative provisions exist for giving protection to the married women.

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 PRAYER

Wherefore in light of the issues raised, arguments advanced and authorities cited, this
Hon’ble Court may be pleased to:

1. DISMISS the instant Petition as not maintainable;

2. DECLARE that Exception 2 to Section 63 of Bharatiya Nyaya Sanhita as

AND/OR

Pass any other order that this Hon’ble Court may deem fit in the interests of justice, equity
and good conscience.

And for this the Respondent, as are duty bound, shall forever humbly pray.

Sd/-

(Counsels on behalf of the Respondent)

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