SYMBIOSIS LAW SCHOOL, PUNE – MOOT COURT EXERCISE AND INTERNSHIP,

2024-1

BEFORE THE HONOURABLE SUPREME COURT OF INDIVA

BY ARTICLE 32 OF INDIVAN CONSTITUTION

WRIT PETITION WRIT.PETITION NO. xx of xx

WRIT APPEAL WRIT APPEAL NO. xx of xx

IN THE MATTER OF MARITAL RAPE AND SPOUSAL SEXUAL OFFENCES

AND SECTION 63 , EXCEPTION II OF BHARATIYA NYAYA SANHITA, 2023

LIT Foundation ...................................................................................................Petiotioner

VERSUS

Union of India......................................................................................................Respondent

And

LIT Foundation .....................................................................................................Appellant

VERSUS

Union of India......................................................................................................Respondent

BEFORE SUBMISSION TO THE HONOURABLE SUPREME COURT OF INDIVA

MEMORIAL ON BEHALF OF THE RESPONDENTS

 STATEMENT OF JURISDICTION

The PIL is filed before the Hon’ble Supreme court of Indiva under Article 32 of constitution of
Indiva. The Jurisction is contested.

Article 32 of the constitution: Right to Constitutional Remedies

(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 clauses (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.

STATEMENT OF FACTS
 INTRODUCTION

The LIT Foundation situated in Dahelvi, Indiva is a non-governmental organization dedicated to

protecting women from domestic abuse and providing legal aid. Because of Exception II of Section
63 of the Bharatiya Nyaya Sanhita (BNS), 2023, which shields husbands from claims of rape
against their wives, the foundation has had trouble prosecuting incidents of marital rape.

BACKDROP

Following the filing of a Public Interest Litigation (PIL) to challenge this exception in the Dahelvi
High Court, the court combined it with a petition from Mr. Furkan, who wished to have an FIR
against him under the POCSO Act and section 64 of BNS quashed.
In the same while, the Karmataka High Court ruled that husbands might be prosecuted for marital
rape, while the Chhatisghar High Court insisted that forced sex between a husband and wife does
not constitute rape. Furthermore, although the marital rape exception is still included in the BNS,
the Supreme Court of India decided in the 2017 case of Independent Thought v. Union of India
that sexual relations between a husband and a wife between the ages of 15 and 18 constitutes rape.

DISPUTE

The LIT Foundation has filed a Public Interest Litigation (PIL) before the Supreme Court of Indiva,
challenging Exception II of Section 63 of the BNS and seeking to criminalize marital rape, and the
Union of India is contesting this petition.

ISSUES RAISED
ISSUE 1. WHETHER EXCEPTION II OF SECTION 63 OF BHARATIYA NYAYA
SANHITA IS CONSTITUTIONALLY VALID OR NOT UNDER ARTICLE 14, 19 AND 21
OF CONSTITUTION OF INDIVA?

ISSUE 2. WHETHER PIL IS MAINTAINABLE BEFORE THE SUPREME COURT OF

INDIVA OR NOT?

SUMMARY OF ARGUMENTS
 ISSUE 1. WHETHER EXCEPTION II OF SECTION 63 OF BHARATIYA NYAYA
SANHITA IS CONSTITUTIONALLY VALID OR NOT UNDER ARTICLE 14, 19 AND
21 OF CONSTITUTION OF INDIVA?

It is humbly submitted before the supreme court of Indiva that exception II of section 63 of BNS
is constitutionally valid as it does not violate articles 14,19 and 21 or any other provisions of the
Indivan Constitution. The exception II of Section 63 of BNS reads as follows: Sexual intercourse
or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not
rape. The appellants contend that non-consensual sexual intercourse by a husband with his wife
should be classified as rape and that the husbands should be prosecuted under Section 63 of BNS.
The appellants argue that any non-consensual sexual intercourse, irrespective of the relationship
between the man and the woman, should be classified as rape, thereby framing the entirety of the
crime of rape as the issue of consent, when the context is also equally important.1The illegality of
sexual acts arises when they meet any of the seven criteria specified in Section 63 of the BNS.
Thus, consent is not the only determining factor in this context.

The legislature has established a distinct legal framework to address spousal sexual violence,
effectively criminalizing non-consensual sex between spouses without labeling it as rape under
Section 63 of the BNS, while considering the context of such violence. The appellants are
consciously and willfully choosing to ignore why the legislation doesn't want to prosecute the
husbands alleged to have committed sexual offences against the wife as rape.1) Indivan Society
considers marriage as one of sanctimonious nature. A marital relationship is an intimate and a
private relationship. It is impossible to establish the absence of consent or its presence by the
husband, given the nature of the relationship. There will be no eye witnesses and even if there are
any injuries or bruises, given the age of sexual liberty we live in, it cannot automatically indicate
cruelty or non-consensual sex, as they could actually reflect passion between the spouses during
sexual activities. 2)Indivan courts have accepted in more than one occasion, that unjustified denial
to sex is considered cruelty, allowing the partners to seek divorce on that ground. It is recognized
that there is legitimate expectation of a meaningful sexual relationship between the spouses from

1
RIT Foundation v. Union of India, (2022) 3 HCC (Del) 572
one another, and the denial of which is considered as ‘matrimonial misconduct’ 2. Therefore, it is
important not to equate non-consensual sex between a husband and wife with the assault of a
woman by a stranger. 3) Despite the lack of evidence, it cannot be ignored that a stigma of ‘rapist’
stands till the day a man dies and it could serve as potential mean for harassing husbands and filing
of false cases. 4) The Marital Rape Exception, which fails to call the spousal sexual violence as
rape, does not, as the petitioners happen to believe condone sexual violence between the husband
and wife. In fact, DV act and Section 67 and Section 85 of the BNS deal with the spousal sexual
violence. Marital Rape Exception just fails to call the non-consensual sex between the spouses as
rape. Therefore, unlike what the petitioners believe, it is not issue of legal recognition of sexual
violence on married women, but rather an etymological issue. 5) This etymological distinction
aims to preserve the sanctity of marriage and family by avoiding the label of rape. While a mother
may have the ability to prosecute her husband for rape, the child resulting from that marriage
would have to bear the lifelong stigma of being the child of a rapist.

It should be noted that the exception II of section 63 of BNS merely states that the sexual
intercourse between husband and wife cannot be termed as rape. It doesn't go into the topic of
consent itself. It neither restricts the women from prosecuting their husbands for sexual violence
just like any other women nor restricts their right to communicate their lack of consent to their
husbands, to say no, and to speak out against the violence they face. Therefore, neither Article 14
nor Article 19 has been violated. Absolute equality, is often unattainable3 and, so long as there is
a perceptible classification which serves a particular purpose, judicial interference therewith is to
be avoided. Applying the R.C. Cooper test4, there should be a direct influence or effect of the act
on the fundamental right of an individual in order to consider it violative of the fundamental right.
There is an intelligible differentia between the non-consensual sexual violence between a husband
and wife and that involving a stranger and a woman and it doesn't violate her not just fundamental

2
Rishu Aggarwal v. Mohit Goyal, (2022) 2 HCC (Del) 741

3
H.P.Gupta and another Vs Union of India, (2002) 10 SCC 658).

4
Rustom Cavasjee Cooper (Banks Nationalisation) v. Union of India, (1970) 1 SCC 248
right, but not any constitutional right for that matter. Simply treating individuals differently or
unequally does not, by itself, constitute discrimination.5 In Raja Ram Pal v. Hon’ble Speaker, it is
argued that courts cannot assess the adequacy of the objectives pursued or the motives of the
legislature in enacting a statute or maintaining a provision, as long as there is a legitimate objective
in place.6 The contested Exception does not suggest that the offense is excusable; it simply rejects
the use of the term "rape" in relation to marital sexual relations. A mere preference of etymology
cannot be cannot be a ground for claiming a violation of fundamental right under Article 21.
Therefore, it can be stated that the exception II under section 63 does not, in any way, can be
considered constitutionally invalid.

ISSUE 2. WHETHER PIL IS MAINTAINABLE BEFORE THE SUPREME COURT OF

INDIVA OR NOT?

It is humbly submitted before the Supreme Court of Indiva that the PIL is not maintainable because
the elimination of Exception II of section 63 would result in the violation of the doctrine of
separation of powers. The removal of the exception would lead to the establishment of a new
offense, as there is a clear distinction between sexual violence committed by a stranger against a
woman and that occurring between a husband and wife. Creating this new offense would violate
the fundamental constitutional principle of separation of powers. A court may strike down a
provision if it is unconstitutional, however, it cannot create a new species of offence of its own by
doing so, even if otherwise the provision may be considered unconstitutional. 7 The power of
creation of an offence resides with the legislation and not with the supreme court under Article 32.

5
State of W.B. v. Anwar Ali Sarkar, (1952) 1 SCC 1

6
Raja Ram Pal v. Hon'ble Speaker, Lok Sabha, (2007) 3 SCC 184

7
RIT Foundation v. Union of India, (2022) 3 HCC (Del) 572
It is not capable of legislative function of making a punishment for the non-consensual sex between
spouses. By striking the exception and making the nonconsensual sex between spouses a rape
under Section 63, the court will have to stipulate the punishment of rape on the husbands, which
the legislature did not intend to do in the first place.

It is argued that if non-consensual sex within marriage is classified as rape, it would become nearly
impossible for the accused husband to prove a lack of consent. Section 114A of the Evidence Act
would then come into play, making it likely to result in a conviction in almost every case, which
cannot be accepted due to the nature of the relationship between the spouses. Given the closeness
of the relationship, a higher standard of proof is required. Therefore, the court cannot accept the
pleading to remove the exception as it would also result in more deliberative legislative changes
which needs to be undertaken.

The viewpoint of the petitioners is that the precedent set in Independent Thought v. Union of India
establishes that sexual intercourse in marriage involving a partner below the age of 18 is considered
rape. However, they argue that the existing exception that excludes marital rape contradicts this
ruling, thereby supporting their claim that marital rape should be criminalized under Indivan law.
The judgment in Independent Thought was delivered to resolve the conflict arising from the
provisions of the POCSO Act and the Prohibition of Child Marriage Act, 2006, particularly
regarding girls aged 15 to 18. Further it is important to note that the section 42A of the POCSO
act clearly denotes that the POCSO act overrides all other legislations, when the exception under
BNS was in disharmony with that.8 It does not imply that rape, regardless of marital status, is not
considered rape. Rather this judgement harmonized the inconsistencies between the legislations
for the girls of age between 15 to 18.

Despite the contentions of petitioners, the fact is that this court can only encourage the legislature
to move quickly on consultations and legislation if it finds it necessary, but it cannot create an
offence of its own. Despite the contradictory takes by the high court of Karmataka 9 and High court

8
RIT Foundation v. Union of India, (2022) 3 HCC (Del) 572

9
Hrishikesh Sahoo v. State of Karnataka, 2022 SCC OnLine Kar 371
of Chaatisghar,10 the law has always been clear. Exception II of section 63 is not unconstitutional
but rather built keeping in mind the complexities and sanctity of marriage that is ingrained in the
Indivan society and culture and this Hon'ble court doesn't have jurisdiction to delete the said
exception which would end up creating a new law. The Hon’ble Supreme Court may however
provide advisory opinions under Article 143, and only at the request of the Hon'ble President of
Indiva. Therefore, the PIL doesn't is not maintainable.

10
Dilip Pandey v. State of Chhattisgarh, 2021 SCC OnLine Chh 3964
 PRAYER

Wherefore it is prayed, considering the issues raised, arguments advanced, and the authorities
cited, that the Hon’ble supreme court of Indiva be pleased to dismiss the PIL filed by the petitioner
and pass any other order, direction or relief that this Hon’ble court may deem fit in the interest of
justice, equity and good conscience.
 INDEX OF AUTHORITIES

CASE LAWS

Independent Thought v. Union of India, (2017) 10 SCC 800

RIT Foundation v. Union of India, (2022) 3 HCC (Del) 572

Hrishikesh Sahoo v. State of Karnataka, 2022 SCC OnLine Kar 371

Dilip Pandey v. State of Chhattisgarh, 2021 SCC OnLine Chh 3964

Rustom Cavasjee Cooper (Banks Nationalisation) v. Union of India, (1970) 1 SCC 248

H.P.Gupta and another Vs Union of India, (2002) 10 SCC 658).

Rishu Aggarwal v. Mohit Goyal, (2022) 2 HCC (Del) 741

Raja Ram Pal v. Hon'ble Speaker, Lok Sabha, (2007) 3 SCC 184

State of W.B. v. Anwar Ali Sarkar, (1952) 1 SCC 1

STATUTES

Indian Penal Code,1860

Bharatiya Nyaya Sanhita, 2023

Protection of Children from Sexual Offences Act,2012

Domestic Violence Act, 2005

Indian Evidence Act, 1872

Prohibition of Child Marriage Act, 2006