STATEMENT OF JURISDICTION

THE PETITIONERS HAVE THE HONOUR TO SUBMIT BEFORE THE HON’BLE

SUPREME COURT OF REPUBLIC OF SINDHU DESH, THE MEMORANDUM FOR THE
APPELLANT UNDER ARTICLE 136 (SPECIAL LEAVE PETITION) OF THE
CONSTITUTION OF INDIA, 1950.

THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS AND

ARGUMENTS IN THE PRESENT CASE.
 STATEMENT OF FACTS

Igor and Laila, an arranged couple, got married on August 10, 2021. When Igor expresses his
desire to consummate their marriage, Laila says that she needs time to get comfortable around
Igor and it would happen in due course of time. However, on October 14, 2021, the couple go to
a party where they get intoxicated. On the same night, Igor expresses his desire to consummate
the marriage. Laila, in intoxicated state is unable to communicate properly and goes to sleep.

Next morning, Laila finds her clothes in disarray and concludes that Igor had sexual intercourse
with her. Feeling traumatized, violated and contempt for the actions of Igor, she files a police
complaint with the jurisdictional Women’s Police Station at Vitosha and a FIR under Sections
350, 351, 354, 375 r/w 376 was registered on October 15, 2021 against Igor.

Laila was examined by a Doctor at the Government Hospital at Vitosha who opined on the
occurrence of ‘vaginal penetration, genital injury and finding traces of semen on her clothes’.

On December 10, 2021, jurisdictiona Magistrate altered the charges and removed the reference
to commission of offences under Section 375 r/w Section 376 of the Penal Code citing Exception
2 of Section 375.

Laila filed a writ petition under Article 226 and arrayed the State of Karunadu and Republic of
Sindhu Desh along with Igor as the Respondents challenging the vires of Exception 2 of Section
375 of the Sindhu Desh Penal Code under Articles 14, 19 and 21 on the grounds that it is
arbitrary and treats an un-married and married woman unequally and that consent regardless of
the marital status of a woman needs to be obtained before commission of sexual intercourse
and/or acts of sexual nature.

On May 25, 2022, the Division Bench of High Court held that Exception 2 to Section 375 of the
Sindhu Desh Penal Code is ultra-vires and directed 375 to be made gender-neutral.

Karunadu Harassed Husbands Association (KHHA) filed several representations with the
Government of Karunadu and the Prime Minister’s office that the aforesaid judgment of the High
Court of Karunadu would have a huge societal impact and that husbands at risk of potential
misuse similar to Section 498A. However, the organization welcomed the notion of gender-
neutral Section 375.
Shruthyalaya, a NGO commented that gender-neutrality will lead to false cases being filed
against women who are already marginalized and face wide-spread patriarchy in the society.

Further, Prime Minister of Republic of Sindhu Desh said that he would have the judgment of the
High Court of Karunadu challenged since criminalisation of marital rape would lead to
“excessive interference with the institution of marriage” and on June 10, 2022, SLP was filed
against HC’s judgement
 ISSUES RAISED

ISSUE I

Whether the Special Leave Petition filed under Article 136 of the Constitution of Sindhu Desh is
proper and/or valid since the State is under an obligation to treat men and women equally?

ISSUE II

(i) Whether Explanation 2 of Section 375 of the Sindhu Desh Penal Code is violative of
Article 14, 19 and 21 of the Constitution?
(ii) Whether forceful intercourse by a man with his wife against her will and/or without
her consent can be criminalized as constituting ‘Rape’ under provisions of Section
375 of the Penal Code?

ISSUE III

Whether the offence of Rape under Section 375 of the Sindhu Desh Penal Code is required to be
made gender neutral?
SUMMARY OF ARGUMENTS
 ARGUMENTS ADVANCED

A. THAT THE SPECIAL LEAVE PETITION FILED UNDER ARTICLE 136 OF THE
CONSTITUTION OF SINDHU DESH IS PROPER AND/OR VALID SINCE THE
STATE IS UNDER OBLIGATION TO TREAT MEN AND WOMEN EQUALLY

1. It is hereby humbly submitted before the Hon’ble Court that

A.1 THE PETITIONER DOES NOT POSSESS THE REQUISITE LOCUS

STANDI

2. It is humbly submitted before the Hon’ble Supreme Court (hereinafter referred to as

SC) that the Special Leave Petition against the judgment of Hon’ble High Court is not
maintainable as (A.1.1) Special Leave cannot be granted when substantial justice has
been done and no exceptional or special circumstances exist for case to be
maintainable. Also in the present case, (A.1.2) no substantial question of law is
involved and interference is based on pure question of fact which is entitled to be
dismissed.

A.1.1 No exceptional and special circumstances exists and substantial justice has
been done in the present case.

3. The counsels, on behalf of the Respondent, contends that the Appellant must show
that exceptional and special circumstances exists and that if there is no interference,
substantial and grave injustice will result, and the case has features of sufficient
gravity to warrant review of the decision appealed against on merits. Only then the
Court would exercise its overriding powers under Art. 136. Special leave will not be
granted when there is no failure of justice or when substantial justice is done, though
the decision suffers from some legal errors.
4. The Republic of Sindhu Desh bases its argument on the intention to protect the
institution of marriage for the larger stability of the society, but a glaring fallacy in
this approach would be that the harms caused to women because of failure in
 criminalizing marital rape will far outweigh the harms apparently caused to society
because of a broken marriage.
5. Moreover, with the State creating laws criminalizing cruelty and with the PWDVA,
2005 it is implicit that the State has understood that the protection of the institution of
marriage cannot be an overarching goal. Further, such an approach only reinforces the
public and private dichotomy, and thus, should be avoided. The aforementioned
arguments have attempted to establish that there is no basis for treating married and
unmarried women differently with respect to rape. The requirements for Article 14 as
laid down in present law require not just a nexus between the purpose to be achieved
and the law, but also that the law is not arbitrary.
6. In the case of Independent Thought v. Union of India, 1 the Hon’ble Court partly
struck down a part of the exception clause in §375 of IPC. Under the Protection of
Children from Sexual Offences Act, 2012 (‘POCSO’), it is illegal to have sexual
intercourse with a child under the age of eighteen. However, the exception clause
allows for this in the event a girl is married and is between the ages of fifteen to
eighteen. This clearly creates an unreasonable differentiation the indivisible section of
minor girls below the age of 18.
7. The Court, in the aforementioned case, noted that this differential treatment on the
basis of marriage was wholly unconstitutional. This was because marriage did not
serve as reasonable classification. Although the Court was keen on noting that the
judgment was not for adult marital rape, 2 it is encouraging that the Court has
recognised that women’s rights cannot be subsumed on the basis of marriage.
8. Furthermore, expounding on the aforementioned arguments, it can be established that
there exists no presupposition of consent to sexual activities in a marriage. Moreover,
to not criminalise marital rape simply to protect the institution of marriage when there
is a constitutional right at stake and when other forms of violence have been
criminalised, would be arbitrary. Thus, this fails the test of Article 14, and the
exception clause is hence, unconstitutional.
1
Independent Thought v. Union of India, (2017) 10 SCC 800 : AIR 2017 SC 4904
2
Id., ¶2. In fact, while hearing the petition, the Bench remarked on how the Parliament debated marital rape and
decided that it was not a crime and hence the Bench opined that it was not a crime. See Deya Bhattacharya, SC
Says Marital Rape Can’t be Considered Criminal: Tradition Doesn’t Justify Assault, Child Marriage, Firstpost (India)
October 11, 2017
 9. Moreover, by bringing to light the equality among both the husband and wife, the
argument that marriage entails consent of the wife to sexual intercourse is also
negated. The problem with debates surrounding consent to sexual activity in a
marriage is that it is often viewed in two clearly demarcated categories. First, that
marriage is irrevocably linked to sexual relationship. The second is that marriage does
not indicate any engagement in a sexual relationship. Legally, the assertion that
marriage is completely disassociated from sexual relationships cannot hold much
weight which is only evidenced by how so many of the claims for divorce rest on
sexual relationships.
10. However, marriage cannot presuppose consent to every sexual activity. Even if it is
visualized that sexual relationships are a term in the contract of marriage, consent to
sexual intercourse at all points in the marriage cannot hold competent in view of
general rules to contract law. A contract which is ambiguous, contrary to public
policy and is uncertain is not a valid contract3. By this logic, in a contract of marriage
wherein woman consents to sexual intercourse at all points of time without
consideration to her bodily requirements will not hold against the test of contract.

A.1.2 No substantial question of Law is involved in the present case and

interference is based on pure question of fact which is entitled to be dismissed

11. The counsel, on behalf the Respondent, humbly submits that the concept of marriage
in the law has evolved significantly over the past few decades. At present, specific
laws for various religions govern the domain of marriage or if the parties to the
marriage, so choose, a religion neutral law will be applicable 4. This codification of
laws for marriage has changed the dynamics of the spousal relationship. At the very
outset, the archaic understanding of the role of women in a marriage was to view
women as property belonging to the husband5.If not property, it was to view the
3
See The Indian Contract Act, 1872, §§23 and 29
4
See The Hindu Marriage Act, 1955 (which governs Hindu Marriages); Dissolution of Muslim Marriage Act, 1939
(which partially governs divorce in Muslim Marriages); Parsi Marriage and Divorce Act, 1936 (which governs Parsi
Marriages); Indian Divorce Act, 1869 (which governs divorce in Christian marriages); The Special Marriage Act 1954
(governs inter-religious marriages and the marriages registered under it).
5
Lisa R. Eskow, The Ultimate Weapon: Demythologizing Spousal Rape and Reconceptualising its Prosecution, 48
Stanford L. Rev. 680 (1996)
 woman as not equal to the husband, keeping in mind gender roles. However, with the
codification, there is no difference in the status of either husband or wife in the
marriage.
12. Moreover, in codified legislations such as the Hindu, Christian, Parsi, Special
Marriage Act, there is no difference mentioned in the laws regarding the status of the
wife and the husband. It is not possible to infer that women are the property of their
husband, in light of clear constitutional rights mandating equality between the sexes.
Even when parties marry under Islamic personal law, both religious scholars as well
as case law precedents affirm that the status of husband and wife under Islamic law is
equal, dispelling the notion of women being property6.
13. An argument of inequality of women before men in marriage will never satisfy the
requirements of Art. 14 in view of extensive case law and constitutional jurisprudence
in favour of the equality between the genders, with the SC now moving beyond the
binary of man and woman to recognise the third gender as well 7. By bringing to light
the equality among both the husband and wife, the counsels, on behalf of the
Respondent, also negate the argument that marriage entails consent of the wife to
sexual intercourse.

A.2 STRIKING DOWN EXCEPTION II OF SECTION 375 WILL AMOUNT

TO JUDICIAL LEGISLATION.

6
Mohd. Naseem Bhat v. Bilquees Akhtar, (2016) 1 JKJ 312
7
See National Legal Services Authority v. Union of India, (2014) 5 SCC 438. In this case, the Supreme Court
expressly created a third gender status for transgenders
 14. The Hon'ble SC in Social Action for Manav Adhikar v. Union of India held that it is
not the duty of the courts to issue directions in policy matters 8. It is for the legislature
and the executive to decide on matters of public policy 9. The courts neither create
offences nor do they introduce or legislate punishment10.
15. Moreover, the legislature has brought recent amendments to the rape laws. The court
would be creating and legislating a new offence by striking down Exception II, which
is out of its purview and is the primary task in the hands of the legislature. The court
should not entertain a question of legislative importance because it would lead to
infringement of doctrine of separation of powers and consequently, will be
inconsistent with the principle of constitutional democracy.
16. Hereby, it is humbly submitted before the Hon’ble Court that the Special Leave
Petition filed under Article 136 of the Constitution of Sindhu Desh is not valid.

B. THAT EXCEPTION 2 OF SECTION 375 OF THE SINDHU DESH PENAL CODE IS

VIOLATIVE OF ARTICLE 14, 19 AND 21 OF THE CONSTITUTION

1. It is humbly submitted before the Hon’ble Court that Exception 2 of § 375 of the
Sindhu Desh Penal Code is violative of (B.1) Art. 14, (B.2) 19 and (B.3) 21 of the
Constitution

B.1 Exception 2 of Section 375 of the Sindhu Desh Penal Code is violative of Article
14
2. It is reverently submitted before the Hon'ble SC that exception 2 of section 375 which
states that non-consensual sexual intercourse by a man with his own wife, the wife
not being under eighteen years of age, is not rape, is violative to equality enshrined in

8
Manav Adhikar v. Union of India, (2018) 10 SCC 443 (India)
9
Soc. Action for Manav Adhikar v. Union of India, (2018) 10 SCC 443 (India); Rajesh Sharma v. State of Uttar
Pradesh, (2018) 10 SCC 472 (India); Union of India v. Deoki Nandan Agarwal, 1992 Supp (1) SCC 323 : A.I.R. 1992
S.C. 96 (India)
10
Census Comm'r v. R. Krishnamurthy, (2015) 2 SCC 796 (India); State of Punjab v. Ram Lubhaya Bagga, (1998) 4
SCC 117 (India); Vemareddy Kumaraswamy Reddy v. State of Andhra Pradesh, (2006) 2 SCC 670 (India); N.K.
Prasada v. Gov't of India, (2004) 6 SCC 299 (India).
 Art. 14 as there is no intelligible differentia in the classification. Thus, it is arbitrary
in nature.
3. Art. 14 is the ‘fon juris’ of the Indian Constitution and the fountain of justice. It is
humbly submitted to the Hon’ble Court that Exception II is violative of Art. 14 of the
Constitution because first, Exception II creates an unreasonable classification [B.1.1];
and secondly, Exception II is manifestly arbitrary [B.1.2].

B.1.1 EXCEPTION II OF SECTION 375 CREATES AN UNREASONABLE

CLASSIFICTION
4. In order to pass the test of reasonable classification under Art. 14, the classification
should be based on an intelligible differentia11 and the differentia should have a
reasonable nexus with the object sought to be achieved by the law in question.12
5. Drawing from the above argument, Exception II keeps outside the ambit of ‘rape’ a
non-consensual sexual intercourse between a husband and wife during the course of
their marriage.13 It creates two classes of rape victims: former being, married women
who are raped by their husband in the course of their marriage, who cannot approach
police and cannot seek punishment under the IPC for ravishment of her dignity and
the latter being, unmarried women who are raped by a man, not being their husband,
who are entitled to protection by the criminal law under §. 375 and §. 376.
6. Intelligible differentia i.e. the basis of classification 14, must be rational 15and based on
some qualities or characteristics16, which are to be found in all the persons grouped
together and not in others who are left out.
Explicating on this argument, it is humbly submitted before the Hon’ble Court that
there is no intelligible differentia in classifying victims of rape on the basis of marital

11
Naresh Kumar v. Union of India, (2004) 4 SCC 540 (India); State of Uttar Pradesh v. Ram Gopal Shukla, (1981) 3
SCC 1 : 1981 A.I.R. 1041 (India); Dhirendra Pandua v. State of Orissa, (2008) 17 SCC 311 (India).
12
Budhan v. State of Bihar, A.I.R. 1955 S.C. 191 (India); Harakchband v. Union of India, (1970) 3 SCC 845 : A.I.R.
1970 S.C. 479 (India); Union of India v. S.C. Bagari, (1999) 3 SCC 709 : A.I.R. 1999 S.C. 1412 (India); Moulin
Rouge Pvt. Ltd. v. Commercial Tax Officer, (1998) 1 SCC 70 : A.I.R. 1998 S.C. 219 (India).
13
The Indian Penal Code 1860, No. 45 of 1860, § 375.
14
State of West Bengal v. Anwar Ali Sarkar, A.I.R. 1952 S.C. 284 (India); UDAI RAJ RAI, FUNDAMENTAL RIGHTS AND
THEIR ENFORCEMENT 549 (2011).
15
Union of India v. Indian Charge Chrome, (1999) 7 SCC 314 (India); Mohan Kumar Singhania v. Union of India,
(1991) 2 SCC 25 : A.I.R. 1992 S.C. 1
16
Sakhwant Ali v. State of Orissa, A.I.R. 1955 S.C. 166
 status for the purpose of protection of women from sexual offences because first, the
basis of classification is ultra vires and secondly the basis of classification is irrational
and arbitrary.

B.1.1.1 The basis of classification is ultra vires

7. The basis of classification can be anything reasonable 17 until and unless it is ultra
vires, i.e. it is expressly prohibited by the Constitution. 18 Equality before the law is a
basic feature of the Constitution 19 and any treatment of equals unequally will be ultra
vires20, and violative of Art. 14.21 There is no intelligible differentia in sub-
classifying people of an indivisible class, and which treats equals unequally.22
8. Expounding on the aforementioned arguments, Exception II unreasonably creates
sub-class of rape victims based on their marital status. The nature of the act of rape
remains the same23 and a rapist continues to stand as a rapist 24 irrespective of whether
the heinous act25 is committed within or outside marriage. Rape victims, irrespective
of their marital status constitute as one indivisible class and Exception II which
further sub-classifies rape victims treats the equals of one indivisible class unequally.

17
Sonubhai Yeshwant Jadhav v. Bala Govinda Yadav, A.I.R. 1983 Bom. 156
18
R.K. Dalmia v. Justice Tendulkar, A.I.R. 1958 S.C. 538
19
Indra Sawhney v. Union of India, (2000) 1 SCC 168 (India); M.G. Badappanavar v. State of Karntataka, (2001) 2
SCC 666 (India); Ajit Singh (II) v. State of Punjab, (1999) 7 SCC 209
20
Jaipur Dev. Auth. v. Daulat Mal Jain, (1997) 1 SCC 35 (India); Yogendra Kumar Jaiswal v. State of Bihar, (2016) 3
SCC 183 (India); State of Mysore v. M.H. Krishna Murthy, (1973) 3 SCC 559 : 1973 A.I.R. 1146
21
Uttar Pradesh Power Corp. v. Ayodhya Prasad, (2008) 10 SCC 139 (India); Indra Sawhney v. Union of India, 1992
Supp (3) SCC 21
22
B. Prabhakar Rao v. State of Andhra Pradesh, (1986) 3 SCC 647 : A.I.R. 1986 S.C. 210
23
Independent Thought v. Union of India, (2017) 10 SCC 800 (India) [hereinafter Independent Thought]; Vikram
Singh v. State of Himachal Pradesh, 2018 SCC OnLine HP 356 (India); Kennedy v. Luoisiana, 554 U.S. 407 (2008);
C.R. v. U.K, App. No. 00020190/92, 1 E.C.H.R. (1995).
24
R. v. R, [1991] U.K.H.L. 12 [hereinafter R.]; see also Philip N. S. Rumney, When Rape Isn't Rape: Court of
Appeal Sentencing Practice in Cases of Marital and Relationship Rape, 19 OXFORD J. LEGAL STUD. 243, 255
(1999).
25
Kaushal Kishore v. State of Uttar Pradesh, (2016) 9 SCC 395 (India); Om Prakash v. State of Raj., (2012) 5 SCC
201 (India); Ratan Lal v. State of Raj., 2003 SCC OnLine Raj 317 (India)
 Hitherto, in the instant case, it is contended that the trauma and agony Laila has to
undergo after the ravishment of her dignity26 is the same, irrespective of her marital
status.27
9. Moreover, In the case of Independent Thought vs. Union of India and Anr28, the
Hon’ble SC held that Exception 2 of Section 375 IPC is liable to be struck down on
grounds that it is discretionary and violative of Article 14, 15 and 21 of the
Constitution of India and it is conflicting with the provisions of POCSO, which must
prevail as it a special law for the protection of girl child.

B.1.1.2 The basis of classification is irrational and arbitrary

10. Extending on the aforementioned arguments, if the basis of classification is on the

face of it arbitrary and palpably unreasonable, it is not found on differentia
intelligible.29 Furthermore, in Savita Samvedi v. Union of India,30 it was held that
classification based on marital status is wholly unfair, unreasonable and liable to be
struck down under Art. 14.
11. The petitioner submits that Exception II classifies the victims of heinous crime of
rape on the basis of their marital status as it does not recognize rape within marriage
and fails to provide protection of §. 37531 to married women.
12. Hence, on the basis of above argument and observation drawn out of the instant case,
it can be said that Laila has not been provided the necessary protection solely on the
basis of her marital status. It is submitted that Exception II which classifies the victim
of rape on the basis of their marital status is wholly arbitrary and irrational.

B.1.2 THE CLASSIFICATION DOES NOT HAVE A REASONABLE NEXUS

WITH THE OBJECT

26
State of Madhya Pradesh v. Munna Choubey, (2005) 2 SCC 710 (India); Bhupinderbh Sharma v. State of
Himachal Pradesh, (2003) 8 SCC 551 (India).
27
Independent Thought, supra note 39.
28

29
R.K. Garg v. Union of India, (1981) 4 SCC 675 (India)
30
Samvita Samvedi v. Union of India, (1996) 2 SCC 380 (India)
31
The Indian Penal Code 1860, No. 45 of 1860, § 375
 13. It is humbly submitted before the Hon’ble Court that the classification does not have
a reasonable nexus with the object sought to be achieved by criminal law prohibiting
sexual offence because first, the object is to protect the dignity of women and punish
the offender, and secondly, the classification is inconsistent and contrary to the object
sought to be achieved.

B.1.2.1 The object is to protect the dignity of women and punish the offender

14. The object of the Act in question shall be ascertained from an examination of its title,
preamble and provision.32 The offence of ‘rape’ contained in §.37533 comes under the
title of ‘sexual offences’ under chapter XVI34 of the IPC dealing with ‘offences
affecting the human body’.
15. § 375 is a criminal law prohibiting sexual offences. Further, the object of criminal law
prohibiting sexual offences is to protect the dignity and honour of a victimized
woman35 and punishing the criminal by imposing an appropriate sentence. 36 Hence, it
is humbly submitted before the Hon’ble Court that the object of Exception II is to
protect the dignity of women and punish the criminal. Drawing from this argument, in
the case at hand, it can be concluded that Laila’s right to dignity has been violated
after the act of sexual intercourse without her consent.

B.1.2.2 The classification is inconsistent and contrary to the object.

16. In addition, ‘reasonable nexus’ between differentia and ‘object of law’ means that the
two elements are logically or rationally related to one another.37 If the classification is

32
2 BASU, supra note 5, at 1414.
33
The Indian Penal Code 1860, No. 45 of 1860, § 375
34
The Indian Penal Code 1860, No. 45 of 1860
35
RATANLAL & DHIRAJLAL, THE INDIAN PENAL CODE 2074 (32nd ed. 2010); State of Karnataka v.
Krishnappa, (2000) 4 SCC 75 (India) [hereinafter Krishnappa].
36
State of Andhra Pradesh v. Bodem Sundara Rao, (1995) 6 SCC 230 (India); Krishnappa, supra note 50.
37
1 H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA 455 (4th ed. 2010)
 inconsistent38 or contrary39 to the purpose or the objective for which the law in
question was established, it is unconstitutional being violative of Art. 14.40
17. Explicating on the same, first, the classification made by Exception II creates a
separate class of married rape victims who even after being raped by their husbands
cannot seek the protection of the law. Secondly, the classification, instead of
protecting the dignity of the victim and punishing the male offender, provides a free
legal license upon marriage to the offender i.e. the husband, to continue with the cruel
acts, hampering the dignity of his wife.
18. Henceforth, it is humbly adduced that there is no logical or rational relation between
the classification of rape victims on the basis of marital status and the object of
criminal law prohibiting sexual offences and the classification is inconsistent and
contrary to the objective sought to be achieved.

B.1.3 EXCEPTION II IS MANIFESTLY ARBITRARY

19. If an act is arbitrary, it is implicit that the act is antithetic to equality and thus
violative of Art. 14.41 A legislation is manifestly arbitrary in the sense that it is made
capriciously, irrationally, without adequate determining principle, not fair, not
reasonable, discriminatory, biased and/or denies equal treatment.42
20. It is hereby submitted that the Exception II which provides immunity to the husband
from marital rape is manifestly arbitrary because it is based on the outdated concept
that by marriage, a wife submits herself irrevocably to sexual demands of her husband

38
Surendra Mohan Arora v. H.D.F.C. Bank Ltd., (2014) 15 SCC 294 (India).
39
Utkal Contractors & Joinery Pub. Ltd. v. State of Orissa, (1987) 3 SCC 279 (India); Wipro Ltd. v. Collector of
Customs, (2015) 14 SCC 161 (India).
40
E.V. Chinnaiah v. State of Andhra Pradesh, (2005) 1 SCC 394 (India); Mahesh Chandra Jain v. Uttar Pradesh
Financial Corp., (1993) 2 SCC 279 (India); Raghunathro Ganpatrao v. Union of India, 1994 Supp (1) SCC 191
(India).
41
Iftikhar Hussain Shah v. State of J.&K., 2018 SCC OnLine J&K 527 (India); E.P. Royappa v. State of Tamil Nadu,
(1974) 4 SCC 3 (India); A.V. Muniswamy v. State of Karnataka, 1985 SCC OnLine Kar 94 (India); 1 KASHYAP,
supra note 31, at 465.
42
Shayara Bano v. Union of India, (2017) 9 SCC 1 (India); Swiss Ribbons Pvt. Ltd. v. Union of India, 2019 SCC
OnLine SC 73 (India); L.I.C. v. Consumer Educ. & Research Centre, (1995) 5 SCC 482 (India); Lachhman Dass v.
State of Punjab, A.I.R. 1963 S.C. 222 (India); State of Orissa v. Bidyabhushan Mohapatra, A.I.R. 1963 S.C. 779
(India)., Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1; Sharma Transp. v. Gov't. of Andhra Pradesh,
(2002) 2 SCC 188 (India); State of Tamil Nadu v. K. Shyama Sunder, (2011) 8 SCC 737
 in all circumstances43and secondly, Exception II is discriminatory and formed without
any adequate determining principle.
21. In addition, Exception II which provides for immunity from marital rape stems out of
archaic and outdated notion of marriage which considers wives as equal to the chattel
and property of their husbands.44 Further, it was believed that a husband was no more
capable of raping his wife likewise an owner is incapable of stealing his property.45
22. Moreover, a husband is not immune from prosecution as far as other offences related
to women as under §. 354, §.498A and §.377 of IPC and §. 3 of the Protection of
Women from Domestic Violence Act, 200546 are concerned. However, Exception II is
the only provision in various penal laws which gives immunity to the husband for
sexual offences committed upon women.
23. Further, it is contended that this discrimination is irrational unreasonable because on
the one hand, a husband may be charged for a lesser offence while he is left
unpunished for committing the offence of rape which is a more heinous 47 crime and
destroys the entire psychology of a women and pushes her to deep emotional crisis.48
24. It is hereby humbly submitted before the Hon’ble Court that the Exception II is
discriminatory and formed without any adequate determining principle. Expounding
on the aforementioned arguments, it can be concluded that Exception II is violative of
Art. 14 because it creates an unreasonable classification in the indivisible class of
married and unmarried women and, in any case, Exception II is manifestly arbitrary.
Correlating this to the facts of the case at hand, Laila has the right to be considered
equal to unmarried women before the the law and provided safety against non-
consensual intercourse by her husband.

43
Id. at 1376; H.M. Advocate v. Duffy, (1983) S.C.(J.) 3 (Scot.); H.M. Advocate v. Paxton, (1984) S.C.(J.) 105
(Scot.).
44
Justice J.S. Verma (Retd.), Report of the Comm. on Amendments to Criminal Law, (March 13, 2019, 04:45AM),
htps://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe% 20report.pdf.
45
Charlotte L. Mitra, For She Has no Right or Power to Refuse Her Consent, 32 CRIM. L. REV. 558, 560 (1979).
46
The Protection of Woman from Domestic Violence Act, 2005, No. 43 of 2005, Acts of Parliament, 2005, § 3
(India).
47
Supra note 41.
48
Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490 (India); State of Uttar Pradesh. v. Chhotey Lal,
(2011) 2 SCC 550 (India).
 B.2 EXCEPTION II TO § 375 OF THE INDIAN PENAL CODE VIOLATES
ARTICLE 19 OF THE INDIAN CONSTITUTION

25. In the case of Dharam Dutt v. Union of India49, it was observed that when a
legislative enactment is challenged as being violative of a fundamental right under
Art. 19 of the Constitution, the test would be to first determine if the right falls within
the sweep and expanse of any of the sub-clauses of Art. 19(1) and second, whether
the impugned law imposes a reasonable restriction falling within the scope of clauses
19(2) to 19(6) respectively.50
26. It is proffered before the Hon’ble Court that Exception II is violative of Art. 19 of the
Constitution as a wife has the right to express her consent regarding sexual matters in
her marriage and it imposes an unreasonable restriction on women.

Explicating and throwing light upon the facts in question in the instant case, Laila’s
fundamental right to give her expression of consent is violated because her consent is
not consensual as according to the medical report her condition is not normal and
doctors opined on the occurrence of ‘vaginal penetration, genital injury and finding
traces of semen on her clothes.’

B.2.1 Married women have the fundamental right to give explicit consent under
Article 19(1)(a)

27. Art. 19(1)(a)51 guarantees to every citizen the fundamental right to freedom of speech
and expression.52 The phrase ‘expression’ under Art. 19(1)(a) has a broad
connotation53 and can be used when the person is entitled to decide upon his or her

49
Dharam Dutt v. Union of India, (2004) 1 SCC 712
50
Shreya Singhal v. Union of India, (2015) 5 SCC 1 (India) [hereinafter Shreya]; Mahesh Bhatt v. Union of India,
2009 SCC OnLine Del 104 (India); Anshul Aggarwal v. Union of India, 2018 SCC OnLine Del 8965 (India).
51
INDIA CONST., art. 19, cl. 1, sub cl. a.
52
Id
53
Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : A.I.R. 1978 S.C. 597 (India) [hereinafter Maneka]; State of
West Bengal v. Subodh Gopal Bose, A.I.R. 1954 S.C. 92 (India); Devidas Ramachandra Tuljapurkar v. State of
Maharashtra, (2015) 6 SCC 1 (India); JAIN, supra note 3, at 1041.
 preferences.54 The freedom of an individual to engage in sexual activity is an
expression of one's sexual preference. 55 The freedom of an individual to decide on
one's own consensual adult relationships, without the interference of the State is a
fundamental human right.56
28. Expounding on it, a woman, irrespective of her marital status has the right to decide
upon her preference of entering into a sexual activity with her husband. Further, the
act of sexual intercourse must be contemporaneous with the consent. 57 Thus, a woman
has a fundamental right to either give affirmative consent or refuse to give consent to
engage into sexual activity with her husband.
29. Henceforth, the right of married women to say no to sexual intercourse with her
husband within the marriage flows from Art. 19(1)(a). In the case at hand, Laila was
in an intoxicated state and was unable to communicate properly and goes to sleep
when Igor expressed his desire to consummate their marriage. Here, explicit consent
is necessary which was clearly absent.

B.2.2 Exception II imposes an unreasonable restriction

30. In the case of State of Andhra Pradesh v. Mc Dowell, 58 it was held that an enactment,
if challenged as violative of any of the fundamental rights under clause (a) of Art.
19(1), could be struck down if the restriction imposed by it is not saved by clause (2)
of Art.19.59

54
K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 (India); Shameek Sen, Right to Free Speech and Censorship:
A Jurisprudential Analysis, J. IND. L. INST. 175, 177 (2014).
55
Joseph Shine, supra note 57.; Suresh Kumar Koushal v. Naz Found., (2014) 1 SCC 1 (India); BOSE &
BHATTACHARYYA, THE PHOBIC AND THE EROTIC: THE POLITICS OF SEXUALITIES IN
CONTEMPORARY INDIA 29 (2007).
56
Dudgeon v. U.K., [1982] 4 E.H.R.R. 149; Norris v. Ireland, [1988] 13 E.H.R.R. 186.
57
Jarnail Singh v. State of Raj., 1971 SCC OnLine Raj 76 (India); Mahmood Farooqui v. State (Gov't. of N.C.T. of
Delhi), 2017 SCC OnLine Del 6378 (India); Shraddha Chaudhary, Reconceptualizing Rape in Law Reform, 13
SOC. LEG. REV. 156, 165-167 (2017); Srijita Jana, Degrees of Consent in Rape: The Dichotomy Between “Yes” or
“No”: Does ‘No’ Mean ‘Yes’, 2 S.C.C. CRIM. L. J. 16, 16-18 (2018).
58
State of Andhra Pradesh v. Mc. Dowell & Co., (1996) 3 SCC 709 (India).
59
Benett Coleman & Co. v. Union of India, (1972) 2 SCC 788 (India); Gopalan v. State of Madras, A.I.R. 1950 S.C.
27 (India); Binoy Viswam v. Union of India, (2017) 7 SCC 59 (India); Rajbala v. State of Haryana, (2016) 2 SCC
445 (India).
 31. It is hereby submitted that first Exception II imposes a restriction on a women's right
to give consent to sexual intercourse within the marriage; and secondly, the restriction
on the right to free consent is unreasonable.

B.2.2.1 Exception II imposes a restriction on a women's right to give consent to

sexual intercourse within the marriage

32. The birth of the marital rape exemption60 and misogynistic implied consent theory61
that can be traced back to a whimsical statement made by an English jurist Sir
Matthew Hale who declared “[b]ut the husband cannot be guilty of rape committed
by himself upon his lawful wife, for by their mutual matrimonial consent and contract
the wife hath given herself up in this kind unto her husband which she cannot retract.”
62

33. The aforementioned argument can be explained in a two-fold manner. First,

Exception II allows a husband to exercise, with impunity his right of non-consensual
or undesirable sexual intercourse with his wife, even without her consent.63 Further, a
wife is deemed to have irrevocably consented 64 at the time of the marriage to have
sexual intercourse with her husband at his whim.65
34. Second, Exception II is based on the ‘implied consent theory’ which does not
criminalize non-consensual sexual intercourse within marriage and takes away the
wife's right to give consent or refuse consent to sexual intercourse protected under her
freedom to speech and expression under Art. 19(1)(a).

60
M. V. Sankaran, The Marital Rape Exemption in India, 20 J. IND. L. INST. 594, 606 (1978); Pallavi Arora,
Proposals to Reform the Law Pertaining to Sexual Offences in India, 3 J. IND. L. SOC. 233, 241 (2012).
61
Rebecca M. Ryan, The Sex Right: A Legal History of the Marital Rape Exemption, 20 LAW & SOC. INQUIRY
941, 1001 (1995); Lisa R. Eskow, The Ultimate Weapon?: Demythologizing Spousal Rape and Reconceptualizing
Its Prosecution, 48 STAN. L. REV. 677, 709 (1996).
62
Mathew Hale, History of The Pleas of The Crown, 1 Hale P.C. 629, 636. (1736); R., supra note 40.
63
Saurabh Mishra & Sarvesh Singh, Marital Rape-Myth, Reality and Need for Criminalization, 12 WEB. L. J. 22,
24- 27 (2003); Dr. G. K. Goswami Siddhartha, ‘No’ to Marital Rape Exemption in Indian Law: Stepping Stone to
Gender Justice, 7 J. LAW & TECH 77, 78 (2018); Dr. Nico & P. Swartz, Is a Husband Criminally Liable for Raping
his Wife? A Comparative Analysis, 3 INT'L J. ACAD. RESEARCH. AND REFLECTION 71, 72 (2015).
64
Masroor Ahmed v. State (NCT of Delhi), 2007 SCC OnLine Del 1357 (India); Raveena Rao Kallakuru &
Pradyumna Soni, Criminalisation of Marital Rape in India: Understanding its Constitutional, Cultural and Legal
Impact, 11 N.U.J.S. L. REV. 121, 126 (2018).
65
M. Foucault, To Have and to Hold: The Marital Rape Exemption and the Fourteenth Amendment, 99 HARV. L.
REV. 1255, 1267-1269 (1986).
 35. Marital rape exception is flawed for the reason that it nullifies the object of the main
provision and, hence, must fail66. The purported defence put forward for retaining
marital rape exception i.e., protection of conjugal rights in the institution of marriage
would destroy the object of the main provision. It must be "pertinent to the subject in
respect of and the purposes of which it was made."67

B.2.2.2 The restriction imposed on the right to free consent is unreasonable

36. At the outset, any restriction imposed on the exercise of right under Art. 19(1)(a) 68
would be unconstitutional 69, if it does not fall under the four corners of reasonable
restriction under Art. 19(2).70 Constitutional morality is the soul of the Constitution,
found in the Preamble71 which declares its ideals and aspirations, and is also found in
Part III of the Constitution.72
37. Further, the term ‘morality’ under Art. 19(2) must be construed as ‘constitutional
morality’73 and not ‘sexual morality’74 or ‘public morality.75 Any archaic law that does
not square with constitutional morality is unreasonable and manifestly arbitrary.76
38. Moreover, the Exception II which provides a legal sanction to the husband to rape
his wife, within marriage was enforced to protect the Victorian notions of sexual
morality77 which considered a wife as a chattel of her husband, and subsequently the
wife could not revoke her consent to sexual intercourse. 78 Hence, the restriction is
66
Director of Education (Secondary) & Anr. v. Pushpendra Kumar & Ors, (1998) 5 SCC 192
67
S. Sundaram Pillai v & Ors. v. V.R. Pattabiraman & Ors., (1985) 1 SCC
68
INDIA CONST., art. 19, cl. 1, sub cl. a
69
Cellular Operators Ass'n of India v. T.R.A.I., (2016) 7 SCC 703 (India); N.K. Bajpai v. Union of India, (2012) 4
SCC 653 (India); Ramji Lal Modi v. State of Uttar Pradesh, A.I.R. 1957 S.C. 620 (India); D.J. DE, THE
CONSTITUTION OF INDIA 850 (3rd ed. 2008).
70
V.G. Row v. State of Madras, A.I.R. 1952 S.C. 196 (India); O.K. Ghosh v. E.X. Joseph, A.I.R. 1963 S.C. 812
(India); SINGHVI, supra note 17, at 771.
71
INDIA CONST. pmbl
72
Navtej, supra note 4.; State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501 (India); Latika Vashist,
ReThinking Criminalizable Harm in India: Constitutional Morality as a Restraint on Criminalization, 55 J. IND. L.
INST. 77, 93 (2013); 3 CONSTITUTIONAL ASSEMBLY DEBATES 38 (New Delhi-Jaico Art India ed. 2003).
73
Indian Young Lawyers Ass'n v. State of Kerala, 2018 SCC OnLine SC 1690 (India); Naz Found. v. Gov't of
N.C.T. of Delhi, 2009 SCC OnLine Del 1762 (India).
74
Shreya, supra note 77.
75
Indian Young Lawyers Ass'n, 2018 SCC OnLine SC 1690; CONSTITUTIONAL ASSEMBLY DEBATE, supra
note 97, at 39.
76
Joseph Shine, supra note 57. Richard M. Nixon v. Adm'r of General Serv., 433 U.S. 425 (1977).
77
Elizabeth Pleck, Criminal Approaches to Family Violence 1640- 1980, 11 CRIM. & JUST. L.J. 50, 77 (1989);
Margot Finn, Women, Consumption and Coverture in England, 1760-1860, 39 HIST. J. 703, 722 (1996).
78
R v. Clarence, [1888] 22 Q.B.D. 23
 inconsistent with the principles of free consent and thus not covered by the grounds of
morality under Art. 19(2).
39. In conclusion, it is humbly submitted before the Hon’ble Court that, Exception II
which imposes a restriction on the married women's right to say ‘no’ to the act of
sexual intercourse within marriage under Art. 19(1)(a) is per se unconstitutional
because the aforementioned restriction does not fall under any of the grounds of
restriction under Art. 19(2). Drawing from the argument, Laila has the right to say no
sexual intercourse with her husband under Art. 19(1).

B.3 EXCEPTION II TO § 375 OF THE SINDHU DESH PENAL CODE

VIOLATES ARTICLE 21 OF THE CONSTITUTION

40. Art. 21 of the Indian Constitution guarantees the fundamental right to life and
liberty.79 It is humbly submitted before the Hon’ble Court that Exception II violates
Art. 21 and deprives married women of their right to life and personal liberty because
first, Exception II violates the right to privacy of married women, secondly, it violates
the right to health and reproductive choice of a married woman.
41. Gleaning upon the facts of the case at hand, Laila has the right to live her with dignity
and privacy, in a healthy manner. All these basic rights of a married woman, like
Laila, are stripped when her husband forces her to have sexual intercourse with him
without her consent and then is not even punished for his crime as currently, there are
no remedies to the said act.

B.3.1 Exception II violates the right to privacy of married women

42. The right to privacy is a fundamental right, 80 emanating from the right to life and
personal liberty guaranteed under Art. 21 of the Constitution. 81 The fundamental right
to privacy guarantees an individual the right to retain the integrity of body, 82 which
79
Francis Coralie Mullin v. Adm'r Union Territory of Delhi, (1981) 1 SCC 608 (India); Maneka, supra note 80.
80
Puttaswamy, supra note 81; Kharak Singh v. State of Uttar Pradesh, (1964) 1 SCR 332 (India); Gobind v. State of
Madhya Pradesh, (1975) 2 SCC 148 (India); R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632 (India).
81
Navtej, supra note 4; Sharda v. Dharampal, (2003) 4 SCC 493 (India); P.U.C.L. v. Union of India, (1997) 1 SCC
301 (India).
82
Puttaswamy, supra note 81; Pramati Educ. & Cultural Trust v. Union of India, (2014) 8 SCC 1 (India); Marimuthu
v. Inspector of Police, 2016 SCC OnLine Mad 10175 (India).
 encompasses an individual's inalienable right to preserve his/her private space 83 and
be free from physical interference.84 Further, it encompasses the right to self-
determination which includes the right to sexual self-determination 85 and sexual
autonomy that is the freedom to choose sexual activities.86
43. Expounding on it, a person can surrender his/her autonomy willfully to another
individual87 and their intimacy is a matter of their choice. 88 It is an individual's
inalienable right to choose their sexual partner and the autonomy to decide freely
when and under what circumstances, he/she wishes to engage in sexual activity.89
44. In the case of State of Karnataka v. Krishnappa 90, the Hon'ble Supreme Court held
that:
“Sexual violence apart from being a dehumanizing act is an unlawful intrusion of
the right to privacy and sanctity of a female.”

The Court further held that rape in itself is a serious blow to the self-esteem and
dignity of the victim and it degrades her, leaving behind a traumatic experience.
45. The heinous crime of rape, whether it occurs, within or outside marriage, 91 is an
ultimate invasion and violation of a women's bodily integrity and her sexual
autonomy.92 In the case at hand, Laila was stripped away of her bodily autonomy and
privacy by her husband.

83
Common Cause v. Union of India, (2018) 5 SCC 1 (India); State of Maharashtra v. Madhukar Narayan Mardikar,
(1999) 1 SCC 57 (India); Prahlad v. State of Haryana, (2015) 8 SCC 688 (India); Aarushi Dhasmana v. Union of
India, (2013) 9 SCC 475 (India).
84
Jonathan Herringjesee Wall, The nature and significance of the right to bodily integrity, 76 CAMBRIDGE L. J.
566, 588 (2017).
85
Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454 (India); Shampa Singha v. State of West
Bengal, 2019 SCC OnLine Cal 153 (India).
86
Joseph Shine, (2018) 2 SCC 189; Santhini v. Vijaya Venketesh, (2018) 1 SCC 1 (India); Chairman of Ry. Bd. v.
Chandrima Das, (2000) 2 SCC 465 (India).
87
Navtej, supra note 4; Sakshi v. Union of India, (2004) 5 SCC 518 (India).
88
Navtej, supra note 4; Jonathan Herring, Rape & The Definiation of Consent, 26 N.L.S.I. REV. 62, 65-67 (2014);
K. Alexa Koeing, The Jurisprudence of Sexual Violence, 7 HUM. RTS. CENT. U. CALIF. 76, 81 (2011).
89
Joseph Shine, (2018) 2 SCC 189
90
State of Karnataka v. Krishnappa, (2000) 4 SCC 75
91
Mohd. Iqbal v. State of Jharkhand, (2013) 14 SCC 481 (India); Sudhesh Jhaku v. K.C.J., 1996 SCC OnLine Del
397 (India); Indu Devi v. State of Bihar, (2017) 14 SCC 525 (India).
92
State of Madhya Pradesh v. Madan Lal, (2015) 7 SCC 681 (India); X v. State of N.C.T. of Delhi, 2008 SCC
OnLine Del 104 (India); State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 (India).
 46. Further, Exception II gives legal protection to the husband to subject his wife to non-
consensual sexual activity, without being punished under the criminal law. Thus, the
husband by the virtue of the aforementioned legal protection can subject his wife to
any overtly sexual act, without her choice, consent and free will. Hence, it can be
concluded that Exception II violates married women's fundamental right of bodily
integrity and sexual autonomy which are protected under Article 21 of the
constitution.

B.3.2 Exception II violates the right to health and reproductive choice of a

married woman

47. The right to health is a fundamental right under Art. 21. 93 It includes one's inalienable
right to have freedom to protect their sexual and reproductive health and this freedom
remains vested in all persons including women irrespective of their marital status.94
48. In the case of C.E.S.C. Ltd. v. Subhash Chandra 95, the Hon'ble Supreme Court held
that Right to Life also includes the Right to live a healthy and dignified life which is
one of the most important things to maintain the individuality of a citizen in the
country. The exemption to Section 375 is a violation to the right to the good health of
a married woman because marital rape causes emotional, psychological and physical
problems to a woman and puts her into depression.
49. The heinous crime of rape causes grave mental as well as physical injury to a
woman96 and Exception II, which does not criminalize marital rape clearly violates
right to health of married women, who are subjected to grave mental and physical
injury by their husbands when forced into non-consensual intercourse.
50. The right to make reproductive choice is a fundamental right guaranteed under Art.
21.97 The right to reproductive choice preserves the freedom of married women to

93
Ashwani Kumar v. Union of India, (2019) 2 SCC 636 (India); State of Punjab v. Mohinder Singh Chawla, (1997) 2
SCC 83 (India); Nagar Nigam v. A.L. Faheem Meat Exports (Pvt.) Ltd., (2006) 13 SCC 382 (India); Occupational
Health & Safety Ass'n v. Union of India, (2014) 3 SCC 547 (India).
94
Nimeshbhai Bharatbhai Desai v. State of Gujarat, 2018 SCC OnLine Guj 732 (India).
95
C.E.S.C. Ltd. v. Subhash Chandra, (1992) 1 SCC 441
96
State of Madhya Pradesh v. Bablu Nath, (2009) 2 SCC 272 (India).
97
Z v. State of Bihar, (2018) 11 SCC 572 (India).
 make decisions primarily consisting of one's sexual and procreative nature. 98
Exception II to §. 375 violates married women's right to reproductive choice because
it violates the right of married women to abstain from participating in sexual activity
and violates the right to decisional autonomy of married women.
51. Henceforth, concluding it is humbly submitted before the Hon’ble Court that
Exception II violates a married woman’s right to life and liberty, right to privacy and
right to health and reproductive choices, enshrined in Art. 21 of the Constitution.

C. THAT FORCEFUL INTERCOURSE BY A MAN WITH HIS WIFE AGAINST HER

WILL AND/OR WITHOUT HER CONSENT CAN BE CRIMINALIZED AS
CONSTITUTING ‘RAPE’ UNDER PROVISIONS OF SECTION 375 OF THE PENAL
CODE

52. It is humbly submitted before the Hon’ble Court that forceful intercourse by a man
with his wife against her will should be criminalized on the grounds that it is the duty
of the State to protect bodily autonomy of all women, irrespective of their marital
status, and secondly, it creates an unreasonable differentiation between married
women between 12-15 years of age, adult married women and unmarried women.

53. Explicating and throwing light upon the facts in question, though Laila was not in a
condition to give her consent explicitly, still Igor forced himself upon her. The status
of being a husband exempts Igor from any act of sexual assault against his wife.
Every married woman should have a safeguard against sexual assault similar to any
unmarried woman.

54. Exception II to Section 375 is one of the most draconian and backward provisions of
the Penal law. It states that any sexual intercourse or sexual act between a husband
and his wife, with wife not being below 15 years of age is not rape as defined under
Section 375 of the Indian Penal Code.99 This section excludes the application of this

98
Suchitra Srivastava v. Chandigarh Admin., (2009) 9 SCC 1 (India); High Court on its own Motion v. State of
Maharashtra, 2016 SCC OnLine Bom 8426 (India).
99
Penal Code, 1860, S. 375
 section on sexual intercourse or sexual acts between a husband and wife. Thus, a wife
under Indian law does not have recourse under criminal law if her husband rapes her.
55. The provision is a blanket exemption granted to married men to commit rape upon
their wives, while this form of rape remains legally unrecognised. While the act may
amount to the offence of cruelty against the wife under the Penal Code100, the husband
cannot be made liable for the more heinous crime of rape, no matter its true nature.
56. Conceding to the aforementioned arguments, it can conclude that once a female
crosses the age of 18 thereafter as a wife, she has no legal protection if she is sexually
harassed by her husband which is also a direct attack on her human rights. The legal
age for marriage is 18 years old whereas the law will protect only those females from
sexual abuse by their husband which are below 18 years of age and beyond this age
limit there exists no remedy for the women.
57. According to Manusmiriti, a wife is not being considered ideal if she denies having
sex with her husband. 101
India being a patriarchal society has never thought of
concepts like rape in marriage and instead considered it as a private matter between
spouses which should not be communicated outside the walls of bedroom.
58. Historically, the spousal exemption goes back to the ancient notion of marriage as a
contract lasting a lifetime. Mathew Hales said, “The husband cannot be guilty of a
rape committed by himself upon his lawful wife, for by their mutual matrimonial
consent, the wife has given herself in kind unto her husband, which she cannot
retract.”102
59. In Narayan's103 case, the Hon’ble SC, as late as in 1992, reiterated this principle by
saying that it is not possible to believe that when a woman has sex with her husband
in the privacy of her bedroom, she would suffer abrasions on her body and vaginal
walls. This shows the thinking that forced sex without violence will not be accepted,
and more perplexingly violent sex in marriage is not possible.

100
Penal Code, 1860, S. 498-A
101
Sakshi Kanodia & Ranjabati Ray, Why Penalize Marital Rape, IOSR-JHSS Vol. 21, Issue 9, (10 September 2016) pp.
49-55.
102
Gelles Richard. Family Violence, 2nd Edition, (New Delhi: Sage 1987). 137
103
B. Lakshmipathi Naidu v. Distt. Educational Officer, (1992) 4 SCC 8 : AIR 1992 SC 2003
 60. Social transformation should ensure that citizens' right to justice, liberty, equality and
fraternity is protected. The right of a wife to say “yes” to sexual intercourse includes
the corollary i.e. the right to say “no”.104

61. As per Explanation 2 to Section 375 of the IPC, consent should be unambiguous,
unequivocal and voluntary. Therefore, consent qua a prior sexual act will not extend
to future occasions. Consent is foreground in IPC in provisions concerning sexual
intercourse. The judicial opinion in India has moved perceptibly in the direction of
recognizing the autonomy and sexual agency of an individual including that of a
married woman.
62. In the case of State of Maharashtra v. Madhkar Narayan 105
the Supreme Court has
held that every woman is entitled to her sexual privacy and it is not open to for any
and every person to violate her privacy as and whenever he wished.
63. In the case of Sree Kumar vs. Pearly Karun 106, the Kerala High Court observed that;
because the wife was not living separately from her husband under a decree of
separation or under any custom or usage; even if she is subject to sexual intercourse
by her husband against her will and without her consent; offence under Section 376A,
IPC will not be attracted. In this case, there was an ongoing dispute on divorce
between the parties. Thereafter, a settlement was reached between the husband and
wife and parties agreed to continue to reside together. The wife stayed with the
husband for two days during which she alleged that she was subject to sexual
intercourse by her husband against her will and consent. Hence the husband was held
not guilty of raping his wife though he was de facto guilty of having done so.
64. In Saretha vs T. Venkata Subbaih107, the Hon’ble Court held that:
“There can be no doubt that a decree of restitution of conjugal rights thus
enforced offends the inviolability of the body and mind subjected to the decree
and offends the integrity of such a person and invades the marital privacy and
domestic intimacies of a person.”

104
S. Sushma v. Commissioner of Police, 2021 SCC OnLine Mad 2096
105

106

107
 If State enforced sexual intercourse between husband and wife is a violation of the
right to privacy, similarly a woman’s right to privacy will be equally violated in case
of non-consensual sexual intercourse with her husband. Hitherto, in the instant case, it
is contended that the sexual intercourse by Igor, without the consent of his wife rips
her of her bodily autonomy and is clearly rape.
65. Moreover, the most recent data (2015-2016) of the National Family Health Survey
(NFHS) reveals that 83% of married women falling between the age bracket 15 - 49
years were victims of sexual violence committed by their “current husbands” while
9% were subjected to violence by their “former husbands”. These women need safety
and assurance in the form of laws, so that women like Laila do not have to face non-
consensual intercourse at the hands of their husbands.108
66. Furthermore, the analysis of NFHS data reveals that nearly 99.1% of sexual violence
cases are not reported and in most such instances, the perpetrator is the husband of the
victim. This data also reveals that a woman is 17 times more likely to face sexual
violence from her husband than from others. Besides this, even after cases involving
marital rape and assault are excluded, the data reveals that only 15% of sexual
offences committed by persons other than the current husband of the victim are
reported to the police.109
67. In 2012, after the Nirbhaya gangrape case110, a committee was constituted under
Justice J.S. Verma (Retd.) in light of the nation-wide agitation seeking to make
criminal law more efficient to deal with cases of heinous sexual assault against
women. One of the suggestions given in this report was that marital rape ought to be
criminalized.111 A two-fold recommendation to this effect was made. The preliminary
recommendation was simply that the exception clause must be deleted. The second
suggestion was that the law must specifically state that a marital relationship or any
other similar relationship is not a valid defence for the accused, or relevant while
determining whether consent existed or not and that it was not considered a
mitigating factor for the purpose of sentencing.112
108

109

110

111
Justice J.S. Verma Committee, Report of Committee on Amendments to Criminal Law (January 23, 2013).
112
id
 68. In CR v. United Kingdom113, the European Commission of Human Rights also
endorsed the view that “a rapist remains a rapist regardless of his relationship with the
victim.” Marital rape can be stated as one of the oldest crimes in society but because
of conceptualization of the female body as property leaves no scope, even today, for
the recognition of rape within marriage.
69. In the case of Nimeshbhai Bharatbhai Desai v. State of Gujarat114, the Hon’ble Court
observed that the law must uphold the bodily autonomy of all women, irrespective of
their marital status. Additionally, it also held that:
“non-consensual act of marital rape violates the trust and confidence within a
marriage and the prevalence of marital rape in India is what has damaged the
institution of marriage”.
The Court, while hearing the case observed that marriage does not make the wife a
chattel of the husband and it does not give the right to violate the dignity, autonomy
and privacy of the woman by coercing her into a sexual act without her free consent.
Correlating the facts of the instant case with the aforesaid obiter, Laila’s bodily
autonomy and free consent should be protected and Igor should be treated as any
other rapist.
70. Further, in the case of Bodhisattwa Gautam v. Subhra Chakraborty, 115
the Hon’ble
Court while commenting on marital rape, said that:
“This cruel act destroys the entire psychology of a woman and pushes her into
deep emotional crises”.
Marriage determines the freedom of sex, but that does not mean it imposes a legal
duty to submit to sex. Similarly, in Sareetha's case , it was held that ‘constitutional
116

law recognises the principle that human relations must be based on the free volition of
individuals
71. In addition, Exception II of § 375 violates Art. 15 as it treats married women as
chattels of their husbands by assuming consent on their behalf as soon as marital
relationship is entered into and goes further by denying them the option of seeking

113
CR v. United Kingdom, ECHR, Ser. A.No. 335-C (1995).
114
Nimeshbhai Bharatbhai Desai v. State of Gujarat,2018 SCC OnLine Guj 732
115
Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490 : AIR 1996 SC 922
116
T. Sareetha v. T. Venkata Subbaiah, AIR 1983 AP 356
 justice within the appropriate remedy. It was noted in Joseph Shine case that
117

control over a woman's sexual agency is a key patriarchal assumption. The provision
proceeds on the assumption that a married woman has no sexual agency of her own
and denudes her of the ability to make sexual choices within her marriage.
72. It is proffered before the Hon’ble Court that, in the case of Dwarka Prasad Laxmi
Narain v. State of UP,118 it was observed that if any legislation, arbitrarily or
excessively, invades the right then it cannot be held reasonable. Gleaning upon this
argument, it can be stated that the present Exception II of § 375 IPC clearly invades
the right of dignity and bodily autonomy of married women. The exception carved
out creates an unnecessary and artificial distinction between a married and an
unmarried woman. The discrimination against married women is absolutely patent
and cannot be accepted as constitutional.
73. It is hereby humbly submitted before the Hon’ble Court that forceful intercourse by a
man with his wife can be criminalized as rape under § 375 IPC. Marital rape becomes
even more heinous as an offence because there are possibilities of repeated assaults
due to the proximity between the victim and the rapist and the nature of relationship
shared by them. Rape, when committed within the confines of a marital household,
should not be unconstitutionally immunised simply for the reason that the perpetrator
is the husband of the victim.

D. THAT THE OFFENCE OF RAPE UNDER SECTION 375 OF THE SINDHU DESH
PENAL CODE IS REQUIRED TO BE MADE GENDER NEUTRAL
74. It is humbly submitted before the Hon’ble SC that the offence of rape under § 375 of
the Sindhu Desh Penal Code is required to be made gender neutral because of two
117
Joseph Shine v. Union of India, (2018) 2 SCC 189
118
Dwarka Prasad Laxmi Narain v. State of U.P AIR 1954 SC 224: 1954 SCR 803
 main reasons, firstly, (D.1) Every gender in the society deserves equal protection
under Article 14, 15(1) and 21, and secondly, (D.2) Making Section 375 gender-
neutral would go a long way in protecting the rights of the LGBTQ community in the
country.

D.1 Every gender in the society deserves equal protection under Article 14, 15 and 21

75. The Art. 14 of the Constitution of India reads as under:

“The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India.”119

Art. 15(1) of the Constitution of India reads as under:

“The State shall not discriminate against any citizen on grounds only of religion,
race, caste, sex, place of birth or any of them.”

Art. 21 of the Constitution of India reads as under:

“No person shall be deprived of his life or personal liberty except according to
procedure established by law.”

76. While it commands the State not to deny to any person ‘equality before law’, it also
commands the State not to deny the ‘equal protection of the laws.’ Equality before
law prohibits discrimination. These rights ensure that every person of the society,
irrespective of their sex, have the right to be protected by the law. Explicating the
matter at hand, it is a fact that rape or sexual assault is not faced by women alone;
men and the diverse transgender community are equally prone to this crime.
77. Article 13 read with Article 226 of the Constitution 120 empowers the High Courts to
strike down laws that are inconsistent with or in derogation of fundamental rights.
The role of the constitutional High Courts becomes particularly significant as they are

119

120
 obliged to ensure the retention of gender equality and to provide mechanisms to
enable women to redress their grievances related to gender-based violence.121
78. The significance of rape laws lies not just in focusing upon sexual violence but also in
addressing theories of dominance and subordination and construction of gender
within wider social parameters. 122
The Male section of the society, due to patriarchy,
enjoys a greater dominance over not only the female section but all the sections of the
society. Gender-neutral rape laws are a necessity today so that a counter-alternative
for male dominance is available to all the other sections of the society.

D.1.1 Gender-neutral rape laws are not a threat to the exclusive

acknowledgement of violence against women.
79. While women continue to suffer from historical prejudice, men are pressured to act
within the strict constraints of aggressive masculinity which disallows them from
showing any kind of vulnerability, and non-binary persons endure near-complete
legal exclusion, social isolation and economic deprivation. Even if one was to operate
on the argument that the nature of violence faced by women is unique given the
patriarchal context, the opponents of gender neutrality who claim that neutrality leads
to dilution, have failed to provide a cohesive explanation as to ‘how’ this dilution
happens. It is difficult to accept that categorisation of rape of all persons (irrespective
of sex and gender identity) under the same offence will itself dilute the severity of the
act for any particular group.
80. Expounding on it, Gender neutrality in law is reflective of the changes in the
understanding of the concept of sexual and domestic violence, as an invasion of
privacy, dignity, and autonomy, irrespective of the gender involved. The law cannot
be limited by the “boundaries of aggressive male sexuality” and must strive to
accommodate abuse in every form. Feminist engagement is crucial for moving
towards achieving the goal of sexual equality. The argument that there is a greater
incidence of violence against women does not discharge the burden of ensuring legal
recourse to all victims of violence.
121
Aparna Bhat v. State of Madhya Pradesh, (2021) SCC OnLine SC 230
122
Law, Ideology and Female Sexuality: Gender Neutrality in Rape Law
 81. Moreover, Gender neutral rape law can be said to be in accordance with Article 14 of
the Constitution which guarantees equality before the law and equal protection of the
law. Gender neutral rape laws aims at including or providing legal protection to all
the genders, not only women. The concept of gender neutrality is not to give an
upper-hand to the perpetrator or give any less protection to women but only to
increase the ambit of the rape laws and thereby extend fortification to all the genders.

D.1.2 Men also face rape and sexual assault and have the right to remedy under
the law
82. ..

D.2 Making Section 375 gender- neutral would go a long way in protecting the rights
of the LGBTQ community
83. In NALSA v. Union of India123, the judiciary finally recognised the transgenders and
gave them the position of the “third gender”. It is ironical, as the country which is
progressive enough to recognise the third gender is still regressive enough to not have
gender neutral criminal laws relating to sexual offences.
84. Article 14 provides for equality before law. No person shall be discriminated on the
basis of sex. Nonetheless, despite having the legal recognition as well as
constitutional equality, the treatment of transgenders in the society as well as legally,
due to the lack of laws, indicates a violation of their fundamental rights under Articles
14, 15 and 21 due to the lack of gender neutrality in laws relating to sexual offences.
85. While the society has come a long way in accepting the same-sex relationships, there
still lies a lack of proper remedy for sexual harassment and rape for the LGBTQ
community. Nonetheless, there did exist legal safeguards for victims of sexual
offences that did not fall under the definition of “rape” under Section 375. Such
offences could be filed under Section 377 that defines “unnatural sexual offences”:
“Whoever voluntarily has carnal intercourse against the order of nature with any
man, woman or animal, shall be punished with imprisonment for life, or with

123
 imprisonment of either description for a term which may extend to ten years, and
shall also be liable to fine.”124

While this provision could act as a legal safeguard, it was also very discriminatory in
nature as this provision was transphobic in nature by defining certain consensual acts
as “unnatural” merely because it did not fit into the normative acceptable definition of
what constituted “natural”. What seems stranger and unfortunate is the fact that the
same provision holds good for sexual offences even today, even after the
decriminalisation of Section 377. This provision merges a male on male or female on
female rape to voluntarily sexual activity between two consenting homosexuals,
thereby indicating the regressive nature of this law.
86. The issue of gender neutrality of sexual offences first arose in Sudesh Jhaku case in
1996 wherein the Hon’ble Delhi High Court insisted on the legislature to articulate
gender neutral criminal law. As a consequence of this judgment, the Hon’ble
Supreme Court formulated issues that the Law Commission of India had to look into.
This further led to the 172nd Law Commission Report.

D.2.1 The 172nd Law Commission Report

87. The 172nd Law Commission Report of 2000 primarily dealt with the review of laws
relating to sexual offences and recommended a lot of changes including gender
neutrality. However, while an elaborate explanation for Sections 375 and 376 was
given, the Report had very less to say about Section 377. Nonetheless, it
recommended the deletion of this section under the following justification:
“In the light of the change effected by us in Section 375, we are of the opinion
that Section 377 deserved to be deleted. After the changes effected by us in the
preceding provision (Sections 375 to 376-E), the only content left in Section 377
is having voluntary carnal intercourse with any animal, we may leave such
person to their just deserts.”125

124
S. 377, Penal Code, 1860.
125
Ministry of Law, Government of India, One Hundred and Seventy-Second Report on Review of Rape Laws, Law
Commission of India (2000).
 88. While the deletion of Section 377 was recommended, not much was said about the
gender neutrality aspects, or the legal safeguards provided to the transgenders.
However, the Report did not take shape until 2012, yet the trans community was able
to witness the progress in the mindsets of the law-makers and this went on to give rise
to another path-breaking judgment in Naz Foundation v. Govt. of NCT of Delhi126.

D.2.2 The Justice Verma Committee

89. The Justice Verma Committee was formed in 2012 after the Nirbhaya case 127. The
Verma Committee for the very first time heard the hues and cries of the LGBTQA
community for the need of gender inclusive laws relating to sexual offences. The
community was given a chance to express the lack of inclusivity and legal safeguards
in crimes relating to sexual offences.
90. The Committee recommended retention of the law on rape and in addition making
sexual assault a gender-neutral offence, unlike the 172nd Report, by using term
“person” instead of “woman” for the purposes of defining victim of rape and sexual
assault and retaining the term “man” for the perpetrator and thereby bringing within
its scope the transgender community.128
91. While this seemed like a huge victory for the trans community, it was only short-lived
as although the Criminal Law (Amendment) Ordinance, 2013 took a very gender-
neutral approach to rape law, the Criminal Law (Amendment) Act, 2013[47] only
implemented the recommendations made to make the rape laws more stringent by
widening the definition of “rape”. It did not consider the aspect of gender neutrality
and retained the gender-specific definitions of these sexual offences.
92. The purpose behind gender neutrality of sexual offences under the IPC is not to
desexualise the offence but to incorporate a holistic understanding of the nature of the
offence beyond the lens of gender.129

126
2009 SCC OnLine Del 1762.
127

128
Flavia Agnes, Law, Ideology and Female Sexuality: Gender Neutrality in Rape Law, Economic and Political
Weekly, < https://www.jstor.org/stable/4411809 >.
129
Harshad Pathak, Beyond the Binary: Rethinking Gender Neutrality in Indian Rape Law, Cambridge University
Press, < https://www.cambridge.org/core/journals/asian-journal- of-comparative-law/article/beyond-the-binary-
rethinking-gender-neutrality-in-indian-rape- law/9BC983FB009B7BBDEB78CED0BC5144C0 >.
 93. It is humbly submits before the Hon’ble Court that discriminating against an
individual on the basis of sexual orientation is deeply offensive to the dignity and
self-worth of the individual.130

1. WHETHER THE OFFENCE OF RAPE UNDER SECTION 375 OF THE SINDHU

DESH PENAL CODE IS REQUIRED TO BE MADE GENDER NEUTRAL?

It is humbly submitted to the honorable court that the offence of rape under section 375 of the
sindhu desh penal code is required to be made gender neutral on the ground that a.) the definition
is an under inclusive and a gendered one. b.) The underlying legal approach to tackle sexual
violence against women has been along the lines of paternalism.

130
K.S. Puttaswamy v. Union of India, (2018) 1 SCC 809, para 126.
Section 375 : 131 This provision defines rape and categorises the different acts that
constitute rape. The provision adopts a gendered approach. It brands males as perpetrators by
using the phrase, ‘a man is said to commit rape’ and also restricts the understanding of victim to
only women.

The definition of rape in the Indian Penal Code is an under-inclusive and a gendered one. By not
including certain classes of the society grouped on the basis of gender, the definition essentially
denies access to justice to them. One of the defenses put up by the Centre was that even globally,
offences like sexual harassment were predominantly perpetrated by a man on a woman, and
hence, should remain gender-specific.

Sexual offences in India are criminalised under the Penal Code, 1860 in Chapter XVI, which is

entitled ‘Offences against Human Body’. Sections 354, 354A-D, and 375 to 376 define and
punish various types of non-consensual sexual acts. The Criminal Law Amendment Act of 2013
brought major changes in the law related to sexual offences and filled several loopholes.
However, it is important to note that the amendment, inter-alia, rejected two important proposals
made by the Justice Verma Committee132 which was set up in the aftermath of the 2016
Delhi Rape case, namely, the criminalisation of marital rape and the introduction
of gender neutrality in the law, considering that ‘the possibility of sexual assault of men,
homosexuals, transgender and transsexual rape is a reality’.133

The 172nd Law Commission Report suggested the substitution of the gendered provision on
‘rape’ with the gender-neutral offence of ‘sexual assault’, as a response to the growing concerns
regarding the existence of sexual violence against both girls and boys. 134 The proposed definition
was sufficiently broad to accommodate the possibility of gender-neutral perpetrators and victims.

131
S 375. (A man is said to commit ‘rape’ if he— (a) penetrates his penis, to any extent, into the vagina, mouth
urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any
object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do
so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into
the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,
…’)
132
(The Committee was set up to look into the reforms relating to Criminal Law, specifically the law on sexual
assault. It was constituted by GOI, Notification No SO(3003)E (Notified on December 23, 2012)).
133
Justice JS Verma Committee, Report of the Committee on Amendments to Criminal Law (January 23, 2013) 416.
134
Law Commission of India (n 114) chs 3, 3.1.
The underlying legal approach to tackle sexual violence against women has been along the lines
of paternalism and protection, which has led to a one-dimensional image of a woman as a
victim.135 Since law and society are reflective of each other, a one-dimensional victimised image
of woman portrays women as weak and ignores the concept of female criminality. This renders
the gender construct of a perpetrator and a victim skewed and narrow. The Indian Constitution
formalises this approach to some extent by allowing the framing of special provisions136 for the
‘protection of women and children’ which runs as an exception to Article 15 of the Indian
Constitution.137 While the special legal provisions in favour of women may be necessary and
desirable in some cases, the clubbing of women and children in the contemporary context may
further enforce the belief that women are necessarily vulnerable and weak.

The counsel argues that gender neutrality is a powerful tool to challenge historically embedded

stereotypes. Notably, the proposition for gender neutrality with respect to Indian laws, has been
made and but has been ultimately rejected without much discussion in a number of separate
instances, including the 172nd Report of Law Commission,138 the Criminal Law Ordinance of
2013,139 and the 2018 Supreme Court petition filed to demand gender-neutral rape laws.

The Counsel beg to differ on account of various reasons.

1. Physical and verbal abuse on husbands

“We do not rule out the possibility of a man becoming the victim of domestic violence, but such
cases would be few and far between, thus, not requiring or justifying the protection of
Parliament.”140

The social gender construct appears to be a vicious circle. The masculinity of men does not
permit them to appear fragile and victimised. This creates a very strong social
obstruction in reporting violence resulting in a lack of structural remedies to address their
victimisation. The incidences of violence against men, albeit rare, have been acknowledged in a

135
Kapur (n 21) 342.
136
The Constitution of India, art 15.
137
The Constitution of India, art 14.
138
Law Commission of India, ‘Review of Rape Laws’, Report No 172 (March 2000) 36.
139
The Criminal Law (Amendment) Ordinance, 2013.
140
Aruna Parmod Shah v. Union of India, 2008 SCC OnLine Del 457.
few cases. In a recent case,141 the High Court of Bombay allowed the husband the right to seek
divorce on the grounds that the wife had made false charges of infidelity against him, denied him
physical relations, verbally abused, and physically assaulted him.

There are a few other cases in which courts have recognised verbal abuse and physical assault
against male victims. In all these cases,142 it is important to note that the remedy provided was
that of divorce (a civil remedy) and there was no discussion on the concept of domestic violence
by women against men and the associated liability.

2. Need of Amending the proviso

The Counsel further present arguments in favour of amending the language of the provision to
make it gender-neutral in order to include within its ambit of victims, men, transgenders and
other queer persons, who are presently denied a right to redressal when sexually and
psychologically violated in the same capacity, while widening the ambit of perpetrators to
include women and the undefined genders, to achieve greater accessibility to justice for all.

Firstly, the counsel deal with the gender-bias expressed through with the language of the
provision, which classifies the perpetrators and victims separately, not only on the basis of the
role they had played during the commission of the offence, but also on the basis of their genders.
It essentially deprives certain people of their right to legal recourse against this crime because of
being born in a particular gender, while protecting people of a certain gender from being
convicted, by being branded as legally incompetent to perpetrate such a crime, which is an
extremely ill-conceived notion. It also fails to incorporate an ostracised class of the society, who
have now found legal as well as social recognition, as being that of an undefined gender, but
equal humans, nonetheless, deserving equal protection of law. However, it raises the question as
to whether this recognition is merely symbolic or can it carve its path into being
incorporated in definitions originally made from a binary perspective. The sexual violence
against them is not an unknown phenomenon, and is therefore, also sought to be addressed in this
paper.

Anupama Ashok Aher v. Ashok Bajirao Aher, 2014 SCC OnLine Bom 792, (2015) 5 Bom CR 302.
141

Bhagwanti v. Laxmandas Panjwani, 1999 SCC OnLine MP 39, AIR 2000 MP 190; Vijay Kumar

142

Jain v. Sunita Vijay Kumar Jain, 2000 SCC OnLine MP 230, (2001) 1 MP LJ 412; Vidya

Ramakrishnaiah v. RN Vikram, 2004 SCC OnLine Kar 360, (2005) 3 Kant LJ 347.
Secondly, One of the strongest pillars of our Constitution is the idea of Equality.
Enshrined in Article 14, it binds the State to not deny any person, equality before the law 143.The
Supreme Court has recognised in Satyawati Sharma that a legislation which might have been
reasonable at the time of its enactment could become unreasonable with the passage of time and
it may rightly be struck down if it is found that it violates the doctrine of equality.144

In the present case, Exception II to Section 375 is manifestly arbitrary as it is unreasonable and

contrary to the rule of law. The courts in interpreting matters of gender should judge with respect
to its proportionality to legitimate State aim.145 Rape is not only a crime against the person of a
woman (victim), it is a crime against the entire society.146 

Article 15(1) provides that the State cannot discriminate against anyone only on the ground of
religion, race, sex, caste or place of birth. An unfortunate result of the word only was that the
Supreme Court earlier used to construe it in a narrow and restrictive sense, i.e. if a classification
was not directly based on sex then it would not attract the ire of Article 15(1).147

Exception II also violates Article 15(1) of the Constitution because its classification is premised
upon a stereotypical and patriarchal understanding of married women. However, in recent
judgments such as Navtej Singh Johar148 and Joseph Shine,149 the Supreme Court has enunciated
a broader understanding of the five prohibitions contained in Article 15(1). In Navtej, it was held
that such a formalistic understanding of Article 15 would essentially dilute the right against
discrimination of its content and would allow the State to simply claim that a provision is based
upon sex and some other criteria.150 This understanding of Article 15 ignores the intersectional
aspects of sex discrimination by failing to take into account social, political and economic
context in which a legal provision operates.151 In unequivocal terms, the Court held that a
classification will not pass the muster of Article 15 when it is grounded in or perpetuates

143
Constitution of India, Art. 14.
144
Satyawati Sharma v. Union of India, (2008) 5 SCC 287.
145
Anuj Garg v. Hotel Assn. of India, (2008) 3 SCC 1.
146

147
Air India v. Nergesh Meerza, (1981) 4 SCC 335 : AIR 1981 SC 1829.
148
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
149
Joseph Shine v. Union of India, (2018) 2 SCC 189.
150
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
151
Ibid.
stereotypes about a class.152 Such a classification can be directly or indirectly premised on a
stereotypical understanding of the role of the sex. In other words, if a discriminatory
classification is made on socially ascribed roles of women then it would attract the application of
Article 15.153

3. International Scenario

The position of gender-neutralisation of the rape provision is not deprived of international

mandate and substantial viability. Over 63 countries of the world today have a gender-
neutral rape. In India, too, changes have been proposed over time, but unfortunately, none have
been incorporated so far. One of the first times this issue was discussed was back in 1996, in a
Delhi High Court case, Sudesh Jhaku v. K.C.J.154 Although the main issue raised was different,
the Court went beyond its mandate to observe the need for a redefining of the law in gender-
neutral terms, especially in light of the fact that the only proportionate remedy to the heinous
crime of sexual assault was by the way of the rape provision in the Penal Code. It was also
observed how the change can only be brought about by the means of a legislative amendment
and was beyond the powers of the judiciary to adjudge upon.155

Even though India has advanced on many counts, this certainly is not one of them. One of the
major drawbacks of the system has been a failure to incorporate the voices of the stakeholders,
including sexual minorities. The Law Commission had proposed a substitution of the definition
of “rape” with that of “sexual assault” to make it more inclusive, nearly two-decades
ago.156 Raising the offence of rape to the platform of sexual assault does away with the notion of
it being a special crime against women and gives it a wider perspective, while reducing the
patriarchal elementsassociated with the provision which tends to further promote the status of
women as sexual chattels.157 Following this 172nd Law Commission Report of India,158 a
National Consultation Meeting was organised in 2001, however, it failed to account for the rights

152
Ibid.
153
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
154
Sudesh Jhaku v. K.C.J., 1996 SCC OnLine Del 397 : 1998 Cri LJ 2428.
155
Ibid.
156
Law Commission of India, Review of Rape Laws (Law Com No. 127, 2000).
157
Camille E. LeGrand, “Rape and Rape Laws : Sexism in Society and the Law” (1973) 61 California Law Review
919.
158
Law Commission of India, Review of Rape Laws (Law Com No. 127, 2000).
of the minority stakeholders such as those belonging from the LGBTQ community. 159 However,
what still remains unaddressed is that a gender-specific definition of the offence worded in terms
of men and women reflects a rather binary understanding of gender, creating doubts as to
whether the interests and rights of the undefined genders were ever even in consideration while
rejecting such proposals of change.160 In light of the recent winds of change, wherein privacy has
been made a fundamental right,161 and the unrecognised genders have been given legal
recognition and equal rights,162 the authors contend for an expansion of the rape provision to
include men and the LGBTQ community within its ambit, in pace with our transforming
Constitution.

4. Gender Neutral Victims : An Imagined Construct?

Siobhan Weare163 has written about the negative effect of gendered rape laws in reinforcing the

construction of women as sexually passive and men as the initiators of sex. It is believed that
women raping or beating men is not a social reality and it is also claimed that not many such
complaints have come up.164 The female to male, female to female, male to male, male to non-
binary, female to non-binary, non-binary to non-binary violence are few other
combinations, in addition to the most widely accepted male to female violence. The concern here
is that given the unavailability of legal redressal, such incidents of violation are not as widely
recorded either in data or literature.165

The situation is further exacerbated considering the hesitation men

face in reporting.166 Even in nations where gender-neutral legal redressal is available, there is a

159
Partners for Law in Development (PLD), “Background to Discussions by Women's Groups on Sexual Assault
Amendments (2001-2010)” (29-03-2010).
160
Harshad Pathak, “Beyond the Binary : Rethinking Gender Neutrality in Indian Rape Law” (2016) 11 Asian
Journal of Comparative Law 367.
161
K.S. Puttaswamy v. Union of India, (2018) 1 SCC 809.
162
National Legal Services Authority v. Union of India, (2014) 5 SCC 438; Navtej Singh Johar v. Union of
India, (2018) 10 SCC 1.
163
Siobhan Weare, ‘“Oh you're a guy, how could you be raped by a woman, that makes no sense” : towards a case
for legally recognising and labelling “forced-to-penetrate” cases as rape’, (2018) 14 (1) International Journal of
Law in Context 110.
164
Agnes (n 5) 846.
165
World Health Organization (WHO), World Report on Violence and Health (2002) 87-113.
166
Fred Pelka, ‘Raped : A Male Survivor Breaks His Silence’ in Rape and Society : Readings on the Problem of
Sexual Assault (Patricia Searles & Ronald J Berger 1995) 252.
serious issue of under-reporting of sexual violence by men.167 The deep-rooted social perception
of masculinity as being associated with domination and power restricts the conceptualisation of
male sexual victimisation. Such skewed branding leads to alienation of male victimhood by the
society.168

Gender neutrality in law is reflective of the changes in the understanding of the concept of sexual

and domestic violence, as an invasion of privacy, dignity, and autonomy, irrespective of
the gender involved. The law cannot be limited by the “boundaries of aggressive male sexuality”
and must strive to accommodate abuse in every form.81 

In conclusion, the Counsel appeal for the true realisation of equality and justice for all,
irrespective of their gender or marital status, to address the changing needs of the society which
our transforming Constitution provides for.

167
Amrita Kapur and Kelli Muddell, ‘When No One Calls It Rape : Addressing Sexual Violence Against Men and
Boys in Transitional Contexts’, International Center for Transitional Justice (2016) 9, 11-17.
168
IBID