Team Code – TC59R

8TH RGNUL NATIONAL MOOT COURT COMPETITION, 2019

WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS

IN THE SUPREME COURT OF INDIA

(Original Civil Writ Jurisdiction)

Civil Appeal No. 14/2019

(Article 32 of the Constitution of India, 1950 read with
Order XXXVIII, Rule 12(1) of the Supreme Court Rules, 2013)

Society for Women’s Rights …

Petitioner

versus

Union of India …
Respondent

Written Submissions on behalf of the Respondent,

TC-59R,
Counsel for the Respondent.

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 TABLE OF CONTENTS

TABLE OF CONTENTS.........................................................................................................I

LIST OF ABBREVIATIONS................................................................................................II

INDEX OF AUTHORITIES................................................................................................III

STATEMENT OF JURISDICTION....................................................................................IV

STATEMENT OF FACTS.....................................................................................................V

ISSUES RAISED..................................................................................................................VII

SUMMARY OF ARGUMENTS.......................................................................................VIII

ARGUMENTS ADVANCED..................................................................................................1

[1] The Court cannot strike down exception 2 to §375 of the IPC, 1860 as it is in
violation of the doctrine of separation of powers..............................................................1
[1.1] It will violate the doctrine of Separation of Powers..............................................1
[1.2] Removing the Exception will be the creation of a new offence............................2
[1.3] The Court cannot criminalise the conduct of an individual as it is the exclusive
prerogative of the legislature..........................................................................................3
[2] In Any Case, The Supreme Court should not Criminalize Marital Rape....................5
[2.1] Alternative Remedies are Available......................................................................5
[2.2] In Any Case, The Legislature is the Appropriate Forum......................................7
[2.3] In Any Case, Striking Down Exception 2 to §375 of Indian Penal Code, 1860
Will Result in Disproportionate Sentencing..................................................................9

PRAYER.................................................................................................................................12

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 LIST OF ABBREVIATIONS

§ Section

AIR All India Reporter

Art. Article

CEDAW Convention on the Elimination of Discrimination against women

ICCPR International Covenant on Civil and Political Rights

IPC Indian Penal Code

SCC Supreme Court Cases

UDHR Universal Declaration of Human Rights

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 INDEX OF AUTHORITIES

Cases

Common Cause v. Union of India, (2008) 5 SCC 511..............................................................3

Golak Nath v. State of Punjab, AIR 1967 SC 1643...................................................................1
Gurbux Singh v. Harminder Kaur, 2010 Indlaw SC 839...........................................................5
Hiral P. Harsora v. Kusum Narottamdas Harsora. 2016 Indlaw SC 834...................................5
Independent Thought v. Union of India, (2017) 10 SCC 800....................................................3
Joseph Shine v. Union of India, 2018 Indlaw SC 899...............................................................5
Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461....................................................1
Pravasi Bhlai Sangathan v. Union of India, (2014) 11 SCC 477...............................................3
Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549........................................................1
Shabnam Hashmi v. Union of India, (2014) 4 SCC 1................................................................2
SR. Batra v.Smt Taruna Batra (2007 3 SCC 169)......................................................................6
Sushil Kumar Sharma v. Union Of India (2005) 6 SCC 281.....................................................8
Union of India v. V. Sriharan, (2016) 7 SCC 1..........................................................................3

Statutes

Hindu Marriage Act of 1955......................................................................................................6

Indian Penal Code......................................................................................................................6
The Protection of Women from Domestic Violence Act of 2005.............................................5

Constitutional Provisions

INDIAN CONST. entry 1, list III seventh schedule.....................................................................10

Books

Andrew Ashworth, SENTENCING AND CRIMINAL CULPABILITY 75 (2015)...............................9

Andrew von Hirsch and Andrew Ashworth, PROPORTIONATE SENTENCING 36 (2005)...........11
Andrew von Hirsch, PAST AND FUTURE CRIMES (1985)...........................................................9
Black's Law Dictionary (10th ed. 2014)....................................................................................5
CONSTANCE BACKHOUSE, SEXUAL ASSAULT IN CANADA 725-739 (2012)..............................7
H.L.A. Hart, PUNISHMENT AND RESPONSIBILITY 115 (2008)..................................................11
Hyman Gross, CRIME AND PUNISHMENT: A CONCISE MORAL CRITIQUE 81 (2012)................9

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Articles

Flavia Agnes, Section 498A, Marital Rape and Adverse Propaganda, 50 EPW 12 (2015).......7
K.I. Vibhute, 'Rape' and the Indian Penal Code at the Crossroads of the New Millennium:
Between Patriarchiast and Gender Neutralist Approach, 43 J. Ind. L. Ins. 25 (2001)...........7
Katharine T. Bartlett, Feminist Legal Methods, 103 Harv. L. Rev. 829 (1990)........................7
Larry Alexander, Culpability in THE OXFORD HANDBOOK OF PHILOSOPHY OF CRIMINAL
LAW 218 (John Deigh & David Dolinko ed., 2011)..............................................................8
Marriage and Rape: We need a law on marital rape but such acts cannot be separated from
the structure of the Indian family, 48 EPW 7, 7 (2013).........................................................7

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 STATEMENT OF JURISDICTION

With reference to the circumstances that have been presented in the instant case, the
provision under which the Petitioner has approached the Hon’ble Supreme Court of India and
to which the Respondent humbly submits is under Article 136 of the Constitution of India,
1950.

The Article invoked is reproduced hereunder:-

136. SPECIAL LEAVE TO APPEAL BY THE SUPREME COURT

(1) NOTWITHSTANDING ANYTHING IN THIS CHAPTER, THE SUPREME COURT MAY, IN ITS
DISCRETION, GRANT SPECIAL LEAVE TO APPEAL FROM ANY JUDGMENT, DECREE,

DETERMINATION, SENTENCE OR ORDER IN ANY CAUSE OR MATTER PASSED OR MADE BY ANY

COURT OR TRIBUNAL IN THE TERRITORY OF INDIA.

(2) NOTHING IN CLAUSE (1) SHALL APPLY TO ANY JUDGMENT, DETERMINATION, SENTENCE
OR ORDER PASSED OR MADE BY ANY COURT OR TRIBUNAL CONSTITUTED BY OR UNDER ANY

LAW RELATING TO THE ARMED FORCES.

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STATEMENT OF FACTS

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 ISSUES RAISED

Issue 1

Whether the Petition filed by the petitioner is maintainable or not?

Issue 2

Whether Exception II of Section 375 of Indian Penal Code, 1860 is constitutionally valid or
not?

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 SUMMARY OF ARGUMENTS

WHETHER THE PRESENT WRIT PETITION IS MAINTAINABLE UNDER ARTICLE 32 OF THE

CONSTITUTION OF INDIA 1950?

In the present case, petitioners have filed a public interest litigation under Article 32 of
the Constitution of India seeking to declare Exception II under Section 375 of IPC to be
unconstitutional on grounds namely unreasonable classification amongst women; no
intelligible differentia behind the intention of the provision; suffocating the right to life
and liberty and dignity of married women, etc. However, it is pertinent to note that the
present petition does not stand the very test of maintainability on the reasoning that by
striking down the impugned exception, it would effectuate to creating an offence which
is the sole aim and duty of the legislature. The impugned exception subsists in the statute
reflecting the intent of the legislature, however the judiciary would be erroneously
substituting it if interfering with the constitutionality of the statute. Lastly and most
importantly, it is in the true spirit of the constitutionalism that the court should maintain
the essence of Constitutional Morality and uphold the cardinal doctrine of separation of
powers and not into the act of judicial legislation.

I. WHETHER EXCEPTION II OF SECTION 375 OF INDIAN PENAL

CODE, 1860 IS CONSTITUTIONALLY VALID OR NOT?

[1] THE COURT CANNOT STRIKE DOWN EXCEPTION 2 TO §375 OF THE IPC, 1860 AS IT IS IN

VIOLATION OF THE DOCTRINE OF SEPARATION OF POWERS

It is submitted that the Court cannot strike down exception 2 to § 375 of the IPC, 1860 as it is
in violation of the doctrine of separation of powers, which has been held to be a basic
structure of the Constitution, as firstly, striking down the exception would mean that the
Court is creating a new offence, which is the exclusive prerogative of the legislature under
the seventh schedule of the Constitution. Therefore, by criminalising marital rape, the Court
is stepping into the domain of the legislature and creating a new offence, which would lead to
a violation of the doctrine of separation of powers. Secondly, the Court cannot criminalise
conduct as, in the division of responsibilities and prerogatives amongst the organs of
government with respect to the criminal justice system, it is the duty of the legislature to
criminalise conduct whereas it is the duty of the judiciary to interpret and apply the statutory

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provision to ascertain whether the accused’s conduct satisfies the ingredients of the offence
and therefore, whether the accused should be acquitted or convicted for the criminal offence.
Thus, if the Court strikes down the marital rape exemption, it will criminalise conduct and
infringe into the domain of the legislature.

[2] IN ANY CASE, THE SUPREME COURT SHOULD NOT CRIMINALIZE MARITAL RAPE

It is submitted that this Court should not criminalise marital rape as firstly, there are alternate
remedies which are available. The availability of civil remedies for the victim to take
recourse to, as well as other criminal provisions which would encapsulate the harm which a
provision for marital rape essentially seeks redressal for mean that there are a number of
alternative remedies which can be availed of, and they are sufficient to redress the harm that
is caused. Secondly, the legislature is the appropriate forum to decide as the legislature is
much more competent and aware of the social realities with respect to the applicability of the
new offence, the indifference towards the recourse by the underprivileged etc. As a result of
the onerous evidentiary burden on the accused and the perceived misuse of the provision by
the victims, which are the two primary concerns, it is contended that the legislature is the
appropriate forum to address this issue. Thirdly, the punishment will be disproportionate in
accordance with the essential principles of sentencing theory.

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 ARGUMENTS ADVANCED

1. WHETHER THE PRESENT WRIT PETITION IS MAINTAINABLE UNDER ARTICLE 32 OF THE

CONSTITUTION OF INDIA 1950?

1.1. It is contended before this Hon’ble Court that the present case although being filed under
Article 32 of the Constitution of India, bars the court to adjudicate the matter for it would
frustrate the Doctrine of Separation of Powers amongst the three wings of State i.e.
Legislature, Executive and Judiciary. An integral component of Rule of Law and included by
this Hon’ble Court in the landmark judgment of Kesavananda Bharati vs. State of Kerala 1,
Doctrine of Separation of Powers has been the backbone of the quasi-federal nature of Indian
democracy blending all the organs of the government with clear demarcation of their nature
and scope of powers. In the present case, the impugned provision under Section 375 of IPC
provides immunity to husband against any allegations of rape by his wife. However, the
consequence of declaring such provision to be unconstitutional effectuate into creating an
offence against married men, which is not the onus and duty of Judiciary. Judiciary being an
independent organ of the state is put to dispense justice by interpreting the provision of the
Constitution and not go beyond the spirit and intent it carries. Framing of Laws is the role of
Legislature and exclusive to it, apart from the special provision of Ordinance for times when
legislature is not in session. Constitutional Courts of the country are empowered to do
complete justice by way of interpreting the existing laws and harmoniously construct them
with the sense of Constitutional Morality. By adjudicating upon the present issue, this court
may declare the impugned Exception to be unconstitutional but by doing that it will self-
destruct the cardinal principle of Separation of Powers.

1.2. The grievance in the present case has a sound constitutional foundation. In the case of
G Krishta Goud & Bhoomaiah v. State of Andhra Pradesh 2, a Supreme Court Bench presided
over by the remarkable Justice VR Krishna Iyer sounded a worthy bell of caution when he
noted, “As Judges, we cannot rewrite the law whatever our views of urgent reforms, as
citizens, may be.” Further, in State of Himachal Pradesh and Ors. vs. Satpal Singh3, Justice

1
Kesavanada Bharati vs. State of Kerala, (1973) 4 SCC 225

2
G Krishta Goud & Bhoomaiah v. State of Andhra Pradesh, (1976) 1 SCC 157

3
State of Himachal Pradesh and Ors. vs. Satpal Singh, (2017) 11 SCC 42

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Chandrachud has cleared the position and outlook of judiciary when dealing such gaps/voids
in law. “The power to enact a legislation is a plenary constitutional power which is vested in
the Parliament and State legislatures under Art. 245 and Art. 246 of the Constitution of
India. The legislature as the repository of the sovereign legislative power is vested with the
authority to determine whether a laws should be enacted. The doctrine of separation of
powers entrusts to the court, the constitutional function of deciding upon the validity of the
law enacted by the legislature, where a challenge is brought under Art. 32 or Art. 226, on the
ground that the law lacks in legislative competence or has been enacted in violation of a
constitutional provision. But judicial review cannot encroach upon the basic constitutional
function which is entrusted to the legislature to determine whether a law should be enacted.
Whether a provision of law subserves the object of the law or should be amended is a matter
of legislative policy. The law enacting body is entrusted with the power to enact such
legislation as it considers necessary to deal with problems faced by the society and to resolve
issues of concern. The courts do not sit in judgment over legislative expedience or upon
legislative policy.”

1.3. As regards the question on the power of the court to plug any gaps in laws, this court in
the case of Asif Hameed v. State of J&K 4 observed that ‘the Constitution does not permit the
court to direct or advise the executive in matter of policy or to sermonize qua any matter
which under the Constitution lies within the sphere of the legislature or executive’. Further, in
case of Union of India vs Association of Democratic Reforms 5, court observed that the ‘it is
not possible for this Court to give any directions for amending the Act or Statutory Rules and
is for Parliament to do so’.

1.4. It is contended that the next possible remedy that could be prayed by the petitioners is to
issue a writ of mandamus, directing the centre to take note of the concept of Marital Rape and
subsequently draft a suitable law on the same. However, this court in the case of V.K. Naswa
v. Union of India6 referred to a large number of decisions and held that ‘it is crystal clear that
the court has a very limited role and in exercise of that, it is not open to have judicial
legislation. Neither the court can legislate nor has it any competence to issue directions to
the legislature to enact the law in a particular manner’.

4
Asif Hameed vs. State of J&K, (1989) Supp (2) SCC 364
5
Union of India vs. Association of Democratic Reforms, (2002) 5 SCC 294
6
V.K. Naswa v. Union of India, (2012) 2 SCC 542

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1.5. It is thus submitted that Judiciary is one amongst the three branches of the State, other
two being the legislature and the executive. Each has specified and enumerated constitutional
powers. The judiciary is assigned with the functions of ensuring that the executive actions
accord with the law and the laws and executive decisions accord with the Constitution. The
courts do not frame a policy or mandate that a particular policy should be followed. The duty
to formulate policies is entrusted to the executive whose accountability is to the legislature,
and through it, to the people. Thus, this is the basis and rationale for holding that the court
does not have the power and function to direct the executive to adopt a particular policy or
the legislature to convert it into enacted law.7

1.6. It is further submitted that another grave consequence apart from violating the Doctrine
of Separation of Powers, will be replacing the intent of the legislature reflected expressly by
way of Exception II under Section 375 of IPC. Unlike in similar situations encountered
previously by this Court, for example Section 66A of IT Act, 2000; Sec 497 of IPC
(Adultery); Sec 377 of IPC (Homosexuality) etc., the results of the judgment were not
punitive in nature i.e. creating any new offence. In the present case, by declaring the
impugned exception unconstitutional, court will be putting their own law in place of the
original law which is a clear violation of Doctrine of Separation of Powers. It is pertinent to
note that despite numerous amendments to the IPC particularly the recent Criminal
Amendment Act 2013 which widened the definition of Rape, legislature refrained to amend
the impugned exception, thus clearly answering any doubts to their intention.

1.7. The intent of the legislature behind criminalizing a human action passes through a
detailed process involving numerous factors and the social engineering. Developments in
science, especially in biology and medicine, and changes in predominant moral and social
philosophy also influence the making of penal law. A human conduct that is believed to be
inimical to the social interests is labelled as a crime. Whenever society believes that a kind of
conduct that was once thought to be indifferent to the welfare of the group actually threatens
some of the cherished interests it applies repressive methods, and that conduct becomes
crime. In examining what kind of conduct ought to be forbidden, it becomes necessary to
recall some of the proclaimed purposes of criminal law, which includes, the protection of the
human person (and to some extent animals also) against intentional violence, cruelty or
unwelcome sexual approaches.8 Sociologists like Roscoe Pound perceive ‘crime’ as a ‘social
7
State of Himachal Pradesh and Ors. v. Satpal Singh, (2017) 11 SCC 42
8
Nigel Walker, Sentencing in a Rational Society, penguin, 1972, p.41

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phenomenon’ and that criminal law protects interests of social institutions including interests
in domestic institutions, religious institutions, and political institutions. 9 Before
criminalization of a human conduct, the legislature is expected to convince itself that:

a. It is absolutely necessary to create an offence;

b. The behavior in question is sufficiently serious to warrant intervention by the criminal

law;

c. The mischief could be dealt with under existing legislation or by using other remedies;

d. The proposed offence is enforceable in practice;

e. The proposed offence is tightly drawn and legally sound; and

f. The proposed penalty is commensurate with the seriousness of the offence.10

1.8. It is contended before this court that the present case is a patently flawed petition for the
fact that it pushes the court to leap the boundaries of Constitutional Morality and rip apart the
fabric of separation of powers, frustrating the very basic structure doctrine. Further, since
there already exists a law on the issue raised in the present petition with complete immunity
to married men for the offence of rape of his wife, there exists no state of void in the statute
that calls for any intervention by the court but for the sole purpose of re-interpretation. It is
contended that in addition to the obvious text of the Constitution, the sub-text and spirit of the
Constitution also add force and understanding to its implementation. The essence of
Constitutionalism that gives immutable feature and serves as a moral compass in the
implementation and interpretation of the Constitution is the principle of Constitutional
Morality. However, while dealing with criminal matters and income tax act, tool of strict
interpretation is prescribed to be followed so as to prevent the courts from intertwining the
discretion and variability associated with the facts of each case impacting personal views
with the statutory provisions concerned. Hence, it becomes fundamental for the organ of the
state, as they discharge their constitutional duties, to keep in mind that constitutional morality
disallows absolute utilitarianism. While never abandoning sanctity of judicial review, judicial
modesty and reluctance to overstep into the legislative scope is a concept that progressive
constitutionalism applauds.

9
John Gillin, Criminology and Penology, third edn., New York.
10
HL Deb, vol. 602, WA 57, 18 June 1999

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1.9. One of the most commonly known consequence of judicial creativity is the creation of
Doctrine of Basic Structure of the Constitution. It would be most appropriate to state that
basic structure doctrine, though not found in text, was indeed an expression of constitutional
morality. In the landmark case of I.R Coelho v. State of Tamil Nadu 11, a distinction was
developed between two types of values that form the part of the Constitution. The textual
provisions and the overarching values that form the part of the basic structure. It may be
considered that it was in this case, that Constitutional Morality was actually being expressed
with reference to its definition, albeit by another name. This recognition of the pre-eminence
of the foundational values behind textual rights is just an expression of what the Drafting
Committee envisioned. However this court in the case of Supreme Court Advocate on Record
Association v. Union of India12, repelled the suggestion that Basic Structure Doctrine was
outside the Constitution. Thus, while constitutional morality is an important feature of the
Constitution, grounded in Constitutionalism, the doctrine of basic structure, is only an
expression of that principle of constitutional morality, made exclusively from the provisions
of the Constitution.

1.10. It is thus most respectfully submitted that the Court, while balancing the objectives
reflected in the verbatim of textual provisions on one scale and the onus to maintain the spirit
of the Constitution on the other, is bound by the absolute limitation of not going outside the
provisions of the Constitution. It is in this light; it is submitted that the present petition does
not stand maintainable as it pushes this Hon’ble Court to invoke its powers under Art. 142 of
the Constitution to frustrate the cardinal principle of Doctrine of Separation of Powers to
indulge into Judicial Legislation. It would be the darkest hour in the legal history of India and
amount to cheating to the responsibility put upon this Hon’ble Court as the guardian of the
Constitution of India, if it ignores the quintessential feature of self-restraint while acting in
the cloak of Constitutional Morality.

11
I.R Coelho v. State of Tamil Nadu, AIR 2007 SC 861.
12
Supreme Court Advocate on Record Association v. Union of India , 2015 SCC OnLine SC 964.

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 WHETHER EXCEPTION II OF SECTION 375 OF INDIAN PENAL CODE, 1860 IS
CONSTITUTIONALLY VALID OR NOT?

The Court cannot strike down exception 2 to §375 of the IPC, 1860 as it is in violation of the
doctrine of separation of powers

[2.1] It will violate the doctrine of Separation of Powers

1. The doctrine of separation of powers forms a part of the basic structure of the India
Constitution as was held in Kesavananda Bharati v. State of Kerala.13 It is also commonly
agreed that all the three organs of the State, i.e., the Legislature, the Judiciary and the
Executive are bound by and subject to the provisions of the Constitution. The
Constitution demarcates their respective powers, jurisdictions, responsibilities and
relationship with one another. Under the Constitution, the legislative powers are with the
Parliament, the executive powers with the President and the judicial powers with the
judiciary.

2. In the case of Golak Nath v. State of Punjab,14 Subba Rao, C.J. had observed that “It
demarcates their jurisdiction minutely and expects them to exercise their respective
powers without overstepping their limits. They should function within the spheres allotted
to them.”15 The separation of power is a method of removing the amount of power in any
group’s hands, making it more difficult to abuse.

3. Further, the court reiterated in Ram Jawaya Kapur v. State of Punjab,16 that the functions
of the different parts of the government are sufficiently differentiated and “consequently
it can very well be said that our Constitution does not contemplate assumption, by one
organ or part of the state, of functions that essentially belong to another.”17

4. Legislative, Executive and Judiciary have to function within their respective spheres
demarcated under the constitution. No organ can usurp the functions assigned to
another. The creation of judicial organ in India was not at all meant to give to it a

13
Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
14
Golak Nath v. State of Punjab, AIR 1967 SC 1643.
15
Id.
16
Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549.
17
Id.

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 supreme status as compared to the other co-ordinate organs. Rather, with powers and
functions sufficiently distinguished and demarcated, what is expected out of judiciary is
to ensure the proper functioning of the other organs of the government and to have a
supervisory role in its objective to ascertain that the remaining organs within their
respective domains.

5. It is submitted that this honourable court will be stepping into the constitutional domain
of the legislature if it strikes down Exception 2 to §375 of the IPC, 1860 as, Firstly, the
Court will be creating a new offence and, Secondly, the Court will be criminalising the
conduct of a person, a function which is in the exclusive domain of the legislature.
Therefore, by infringing upon the ambit of the legislature, the Court will be in violation of
the doctrine of Separation of Powers, the salience of which has been upheld by this Court
in numerous judicial decisions over the years. Thus, the Court should not venture into the
unchartered waters of criminalising marital rape as it is in violation of its constitutional
jurisdiction under the separation of powers doctrine.

[2.2] Removing the Exception will be the creation of a new offence

6. It is submitted that if the prayer of the petitioners is granted, then by striking down
Exception 2 to §375 of the IPC, 1860, this Court will be invading the domain of the
legislature by declaring non-consensual marital intercourse to be unconstitutional, as it
would result in the creation of a new offence in the IPC, and the creation of a new offence
is the exclusive prerogative of the legislature.

7. Entry 1 of List III of the Seventh Schedule of the Constitution of India, 1950 gives both
the Central and the State legislature the prerogative to frame laws and enact legislation
which deal with “Criminal law, including all matters included in the Indian Penal Code at
the commencement of this Constitution but excluding offences against laws with respect
to any of the matters specified in List I or List II and excluding the use of naval, military
or air forces or any other armed forces of the Union in aid of the civil power”. Therefore,
the creation of a new offence will be by an amendment to the IPC, 1860, which can only
be done by either the Central or the State legislatures. 18 Therefore, the Court will be
infringing on the domain of the legislature if it strikes down exception 2 to §375 of the
IPC as it will be declaring marital rape to be an offence under the IPC.

18
Shabnam Hashmi v. Union of India, (2014) 4 SCC 1.

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8. The legislature is well equipped to comprehend and interpret the social scenario which
impacts an enactment or a law, and is thus in the best position to ensure that the law
reflects the change in the social position.19 It is also submitted that any lacunae or defect
in the law should only be remedied by the legislature and not by the Courts, and the same
position has been upheld by this Court in numerous judicial decisions. In the case of
Independent Thought v. Union of India,20 it was held that:

“There can be no cavil of doubt that the Courts cannot create an offence.”21

9. Thus, it is submitted that as the striking down of exception 2 to §375 of the IPC, 1860
would lead to the creation of a new offence, and thus would be an egregious infringement
into the constitutional domain of the legislature.

[1.3] The Court cannot criminalise the conduct of an individual as it is the exclusive
prerogative of the legislature

10. It is submitted that this Court will be criminalizing conduct by striking down Exception 2
to §375 of the IPC, 1860 as it will make conduct which was not deemed to be an offence
by the statute to fall within the ambit of an offence and declare those who perform such
erstwhile lawful conduct to fall within the bracket of criminal offenders.

11. In so far as criminal law and the criminal justice system is concerned, it is to be noted that
the system is one which has segregated its functions between the specific functionaries of
the State.22 The legislature is tasked with criminalizing conduct, the executive has to make
the decision of whether there will be prosecution in a particular case, and the judiciary is
mandated to ensure that it applies the statutory provision and decree whether the conduct
is criminal or not, and either convict or acquit the accused.23

12. Therefore, if the Court were to declare marital rape to be an offence and remove
Exception 2 to §375 of the IPC, 1860, then it would be a direct infringement into the
criminalizing power of the legislature. Thus, it is submitted that the criminalization of

19
Common Cause v. Union of India, (2008) 5 SCC 511.
20
Independent Thought v. Union of India, (2017) 10 SCC 800.
21
Id.
22
Pravasi Bhlai Sangathan v. Union of India, (2014) 11 SCC 477.
23
Union of India v. V. Sriharan, (2016) 7 SCC 1.

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marital rape by the Court is an encroachment upon the domain of the legislature, and
therefore the prayer of the petitioners’ should not be granted.

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 [2] In Any Case, The Supreme Court should not Criminalize Marital Rape

13. In any case, looking at the issue from a feminist perspective, criminalization of marital
rape will cause grievous hurt to the legitimate interests of, both, the victim as well as the
accused and will fail in fulfilling the purpose of criminal law and thus ultimately
adversely affecting the legitimacy of criminal justice system itself.

14. It is therefore submitted that Marital Rape shouldn’t be criminalized as, firstly, alternative
remedies are available [2.1]; secondly, in any case, the legislature is the appropriate
forum [2.2]; thirdly, in any case, striking down Exception 2 of §375 of IPC will result in
disproportionate sentencing [2.3].

[2.1] Alternative Remedies are Available

15. In the case of Joseph Shine v. Union of India, 24 this Hon’ble court has stated that due
consideration must be given to ascertain whether there exists an alternative civil remedy
which will serve the purpose.25 It is submitted that, firstly, alternative civil remedy exists
[2.1.1]; secondly, alternative criminal remedy exists [2.1.2]; thirdly, the alternative
remedies are sufficient [2.1.3].

[2.1.1] Alternative Civil Remedy Exists

16. The term “remedy”, according to Black’s Law Dictionary, is a means by which the
violation of a right is prevented, redressed or compensated. 26 Thus, remedy is a means to
an end. The Protection of Women from Domestic Violence Act, 2005 endeavors to shield
women from all forms of violence occurring within the family 27 and §3 of the act defines
‘domestic violence’ to also include sexual abuse within its folds. 28 Further, §13(1)(ia) of
the Hindu Marriage Act, 1955 establishes divorce as a remedy for sexual abuse within
marriage.29

24
Joseph Shine v. Union of India, 2018 Indlaw SC 899.
25
Id at para 312.
26
Remedy, Black's Law Dictionary (10th ed. 2014).
27
The Protection of Women from Domestic Violence Act of 2005, Preamble.
28
The Protection of Women from Domestic Violence Act of 2005 §3(a); Hiral P. Harsora v. Kusum
Narottamdas Harsora. 2016 Indlaw SC 834
29
Gurbux Singh v. Harminder Kaur, 2010 Indlaw SC 839

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17. Alternative civil remedies in the form of protection/restraining order, 30 housing order,31
shared household,32 monetary relief,33 and divorce34 are at the disposal of the wife.
Further, the aforementioned legislations are more progressive in nature as the phrase
sexual abuse is of a wider import and includes any conduct which ‘abuses, humiliates,
degrades, or otherwise violates the dignity of a woman’.35 Thus, the wife is not compelled
to live with a sexually abusive husband, and can resort to the multiplicity of remedies
provided by the aforementioned legislations.

[2.1.2] Alternative Criminal Remedies Exist

18. §498A of the Indian Penal Code criminalizes the act of subjecting a woman to cruelty.
Cruelty has been defined under the §to mean “any willful conduct which is of such a
nature as is likely to drive the woman to commit suicide or to cause grave injury or
danger to life, limb or health (whether mental or physical) of the woman”,36 and is
characterized as a cognizable offence, punishable with imprisonment up to 3 years.

19. Thus, the Indian Penal Code does make available remedies to the victim of marital rape,
in the form of §498A.

[2.1.3] The Alternative Remedies are Sufficient

20. Marital Rape differs from stranger rape due to multiple factors, especially the institutional
framework and the familial context in which it happens, and so must be dealt with giving
due regards to the same.37 The societal concerns such as the stigmatization of rape,
pressure from society writ large, nature of the criminal trial process etc. 38 should be borne
in mind.

30
The Protection of Women from Domestic Violence Act of 2005 §18.
31
The Protection of Women from Domestic Violence Act of 2005 §19.
32
The Protection of Women from Domestic Violence Act of 2005 §2(s) r/w §17; SR. Batra v.Smt
Taruna Batra (2007 3 SCC 169).
33
The Protection of Women from Domestic Violence Act of 2005 §20.
34
Hindu Marriage Act of 1955 §13.
35
The Protection of Women from Domestic Violence Act of 2005 §3.
36
Indian Penal Code of 1860 §498A.
37
Marriage and Rape: We need a law on marital rape but such acts cannot be separated from the
structure of the Indian family, 48 EPW 7, 7 (2013).

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21. The various remedies available under The Protection of Women from Domestic Violence
Act, 2005 and especially that of divorce available under the Hindu Marriage Act, 1955
are sufficient as they provide protection to the victim from any subsequent maltreatment,
all the while not losing sight of the interests of the victim as this process will be less
harrowing for her as well as be a more approachable remedy.39

22. The function of criminal law is not to exact vengeance, 40 as retribution fails in helping the
victim, the accused, and the society as it fails to solve the underlying problem. 41 Rather, a
reformative idea of criminal justice system should be adhered to in order to further the
aim. §498A of the Indian Penal Code, 1860 criminalizes the act of cruelty, it must be
noted that, keeping in mind the societal concerns and the fact that 498A is a broader
provision encompassing mental abuse as well. 42 The courts should not be blind to the
ground reality of the Indian society and should keep in mind additional difficulties faced
by women in these cases.

[2.2] IN ANY CASE, THE LEGISLATURE IS THE APPROPRIATE FORUM

23. Essentially, marital rape is the manifestation of a deep-rooted systemic problem looming
within the Indian society and thus the solution for the same is not to be found at an
individual level. The legislature is an appropriate forum to raise this issue owing to the
multidimensional nature of the issue and the multiplicity of factors and interests to be
taken into account before criminalizing marital rape. Using the feminist legal method, 43
and asking the woman question,44 while analyzing this issue, one has to come to the
conclusion that solving the problem requires procedural tweaks, legislative reforms as
well as a cultural paradigm shift because of, firstly, the onerous evidentiary burden on the
victim [2.2.1]; and secondly, in any case, the perceived possible misuse of the provision
[2.2.2]; and thus, the legislature is the appropriate forum.
38
K.I. Vibhute, 'Rape' and the Indian Penal Code at the Crossroads of the New Millennium: Between
Patriarchiast and Gender Neutralist Approach, 43 J. Ind. L. Ins. 25 (2001)
39
Flavia Agnes, Section 498A, Marital Rape and Adverse Propaganda, 50 EPW 12 (2015).
40
CONSTANCE BACKHOUSE, SEXUAL ASSAULT IN CANADA 725-739 (2012).
41
Id.
42
Agnes, supra note 27.
43
Katharine T. Bartlett, Feminist Legal Methods, 103 Harv. L. Rev. 829 (1990).
44
Id at 837.

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 [2.2.1] Onerous Evidentiary Burden on the Victim

24. It has been widely accepted that the criminal trial is an absolutely harrowing process for
the victim and more so in the case of sexual offences owing to the serious nature of the
crime and the proportional evidentiary burden. 45 Even though the relationship between the
parties does not eliminate, but rather aggravates, the harm caused to the wife in this case,
the ground reality of the Indian society is not so one-dimensional.

25. The criminal trial process will not only strain almost every social relationship the victim
has but also put an excruciating burden on the victim given the nature of the
circumstantial evidence as well as the lengthy litigation process and the complex cocktail
of sociological phenomena such as stigmatization of rape, 46 sacredness of marital bond47
etc. further serving as restrictions to access to justice.

26. Addressing this multifaceted and intricate issue requires a proportionate legislative reform
and procedural tweaks to the machinery of the criminal justice system so that it can better
serve the appropriate ends and thus, striking down the exception will fail to solve the
underlying issue and quite possibly worsen the situation further.

[2.2.2] In Any Case, Perceived Possible Misuse of Provision

27. In the case of Sushil Kumar Sharma vs Union of India,48 the Supreme Court has
commented on length and acknowledged the abuse of §498A as a new form of “legal
terrorism”.49 Perceived possible misuse of the criminal justice system, regardless of the
genuineness, results not only in the decline of legitimacy and faith in the criminal justice
system but also amplifies the trauma to be faced by the victim. Such perception of the
provision as a convenient tool for misuse rather than an oasis of justice in the dessert that
is Indian society indirectly injures the victim as it allows select groups to paint the whole
class of victims will the same dismissive brush, which further alienates the victim and
aggravates the mental trauma. In such a scenario, the victim loses faith and trust in the

45
Larry Alexander, Culpability in THE OXFORD HANDBOOK OF PHILOSOPHY OF CRIMINAL LAW 218
(John Deigh & David Dolinko ed., 2011)
46
supra note 25.
47
supra note 25 at 8.
48
Sushil Kumar Sharma v. Union Of India (2005) 6 SCC 281.
49
Id at para 16.

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 criminal justice system due to the experienced indifference, hostility and ostracization of
the torturesome criminal trial which can manifest itself primarily in low conviction rates
which forces, if not allows, the rest of the society to assert the possibility of misuse of the
provision further and thus creates a feedback loop, leaving all the stakeholders dis-
satisfied.

28. While the public perception is beyond state control, the existence of proper legislative
reforms and procedural safeguards is a legitimate expectation and also helps insulating
the victims of such heinous crimes from such allegations.

29. Therefore, considering the aforementioned complications, the legislature is the most
appropriate forum to address the issue in a comprehensive manner and it would be
preferable if the court directs the legislature to formulate appropriate laws and policies to
holistically deal with the issue of marital rape.

[2.3] IN ANY CASE, STRIKING DOWN EXCEPTION 2 TO §375 OF INDIAN PENAL CODE, 1860
WILL RESULT IN DISPROPORTIONATE SENTENCING

30. The Criminal Justice System considers a variety of things at differing stages of the
process as different stages require varying factors to be taken into account. 50 For example:
while deciding whether a particular conduct is a crime or not, the rule-making authority
might look at the harm caused or the wrongfulness of the conduct 51 whereas when
deciding the sentence to be awarded, it is culpability that is to be gauged.52 It is submitted
that, firstly, by striking down exception 2 to §375 of Indian Penal Code the court will
violate the separation of powers [2.3.1]; secondly, in any case, the exception should not
be struck down as it will violate the proportionality theory [2.3.2].

[2.3.1] By striking down Exception 2 to §375 of Indian Penal Code, 1860, the court will
violate the Separation of Powers

31. In the landmark judgement of Kesavananda Bharati v. State of Kerela,53 this Hon’ble
Court has stated that the doctrine of Separation of Powers is a part of the basic structure

50
Andrew Ashworth, SENTENCING AND CRIMINAL CULPABILITY 75 (2015).
51
Andrew von Hirsch, PAST AND FUTURE CRIMES (1985).
52
Hyman Gross, CRIME AND PUNISHMENT: A CONCISE MORAL CRITIQUE 81 (2012).
53
Kesavananda Bharati v. State of Kerela (1973) 4 SCC 225.

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 of the Constitution and thus none of the three organs of the state can encroach upon the
power of another, not even by amending the Constitution itself.

32. ‘Criminal Law’ finds itself in List III of the Seventh Schedule to the Indian Constitution. 54
The Legislature has the plenary power to decide what conduct to criminalize, what
criminological as well as penological principles to use as well as what the minimum and
maximum sentence will be.55 However, judicial discretion with regards to what exactly
the sentence will be in a given case cannot be encroached upon by the legislature.

33. The Parliament, through an amendment, has added §376-B 56 to the Indian Penal Code,
1860, which criminalizes sexual intercourse between a man and his judicially separated
wife without her consent but with a lower sentence, thus exercising its power to legislate.
By striking down Exception 2 to §375 of Indian Penal Code, 1860, this court will violate
the separation of powers as it will effectively encroach upon the plenary power of the
legislature to legislate and decide on the minimum and maximum sentence it deems
appropriate for the offence of marital rape. Further, the Parliament, by enacting the
aforementioned §, has impliedly expressed that it considers the existence of marital
relationship between the parties as an important factor when deciding the sentence which
is to be awarded. Thus, deleting the exception will amount to the court ruling upon the
principles which are to be used, and so the court will violate the separation of powers.

[2.3.2] In Any Case, The Exception should not be struck down as it will violate the
Proportionality Theory

34. Severity of the sentence denotes the degree of culpability 57 as this degree of culpability is
taken to be the blameworthiness and thus the sentence which can be awarded is to be
proportional to the blameworthiness of the individual concerned.58 Further, according to
the proportionate spacing principle, the spacing between penalties for different offences

54
INDIAN CONST. entry 1, list III seventh schedule.
55
Supra note 38.
56

57
supra note 40 at 80.
58
Andrew von Hirsch and Andrew Ashworth, PROPORTIONATE SENTENCING 36 (2005).

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 represents the difference between blameworthiness, culpability or the seriousness of the
crimes.59

35. §376-B of the Indian Penal Code, 1860 criminalizes sexual intercourse between a man
and his judicially separated wife without her consent, but with a lower sentence thus
representing the legislature’s consideration of a lower degree of mens rea.60 If this court
were to strike down Exception 2 to §375 of Indian Penal Code, 1860, it will result in
marital rape being equated to stranger rape in terms of culpability and thus will not only
encroach upon the legislative domain but also be antithetical to the legislative intent of
factoring in the relationship between the parties to determine the culpability – culpability
or mens rea here is independent of the harm. Further, it will violate the proportionate
spacing principle as it will fail to differentiate between sentences awarded for stranger
and spousal rape whereas the existence of a relationship between the parties has been
identified as a distinguishing principle with regards to culpability. Furthermore, it will
also result in an incoherent Penal Code as rape will be punished with the same sentence
regardless of conjugal relationship between the parties while rape of a judicially separated
wife is to be punished with a lower sentence keeping in mind the relationship between the
parties.

36.

59
Id at 140.
60
H.L.A. Hart, PUNISHMENT AND RESPONSIBILITY 115 (2008).

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 PRAYER

Wherefore, in light of the issues raised, arguments advanced and authorities cited, it is humbly
prayed that this Honourable Court may be pleased to adjudge and declare that:

1. This Special Leave Petition is not maintainable.

2. The Exception 2 to §375 of the IPC, 1860 is not unconstitutional.

And pass any other order that this Honourable Court may deem fit in the interests of justice,
equity and good conscience.

All of which is humbly prayed,

TC-59R

Counsel for the Respondents.

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