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IN THE HON’BLE MOOT COURT OF

CHRIST ACADEMY INSTITUTE OF LAW
AT BENGALURU
21st May, 2019

In Matter of

ROBB …Petitioner

vs.

UNION OF INDUS …Respondent

BEFORE SUMISSION TO HON’BLE CHIEF JUSTICE

AND HIS COMPANION JUSTICES
OF THE HON’BLE MOOT COURT OF CHRIST ACADEMY INSTITUTE
OF LAW

MEMORANDUM ON BEHALF OF THE PETITIONER

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TABLE OF CONTENTS

TABLE OF CONTENTS

Table of Contents ………………………………………………………………………………i

List of Abbreviations ………………………………………………………………………….ii
Index of Authorities …………………………………………………………………………..iii
a. Cases Cited …………………………………………………………………………..iii
b. Books and Treatises…………………………………………………………………..iii
c. Dictionaries and Law Lexicons ………………………………………………………iii
d. Legal Databases ……………………………………………………………………..iii
e. Legislations …………………………………………………………………………..iii
Statement of Jurisdiction ……………………………………………………………………..iv
Synopsis of Facts………………………………………………………………………………v
Summary of Arguments ………………………………………………………………………vi
Arguments Advanced………………………………………………………………………….1
Issue 1 …………………………………………………………………………………….1
Issue 2 …………………………………………………………………………………….2
Issue 3 …………………………………………………………………………………….4
Prayer
…………………………………………………………………………………………..6

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INDEX OF AUTHORITIES

LIST OF ABBREVIATIONS

SC Supreme Court

AIR All India Reporter

Ori Orissa

Govt Government

Art Article

Cal Calcutta

IC Indian Cases

Acc, Acc According

Cr.LJ Criminal Law Journal

SCR Supreme Court Reporter

CO Company

REGD Registerd

Amend Amendment

Const Constitution

SCJ Supreme Court Journal

EDN/ED Edition
ER English Reporter
ANR Another
ORS Others
ETC Etcetera
VOL Volume

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INDEX OF AUTHORITIES

INDEX OF AUTHORITIES

A. CASES CITED
1. Anil Bhardwaj Vs Nirmlesh Bhardwaj On 29 January, 1986
2. Arnesh Kumar Vs State Of Bihar Reported In Air 2014 On 18 December, 2014
3. Ashwini Kumar Sehgal V. Swatantar Sehgal
4. Bhagat V. Mrs. V D. Bhagat
5. Haneef And (2) Others. Vs The State Of U.P. On 20 September, 2017
6. Independent Thought Vs Union Of India On 11 October, 2017
7. Justice K.S.Puttaswamy(Retd) Vs. Union Of India
8. Joseph Shine V. Union Of India
9. K.Srinivas V. K.Sunita
10. Mahendra @ Manish Vs State (Nct Of Delhi) 2018
11. Marry V. Raghvan
12. Nimeshbhai Bharatbhai Desai Vs State Of Gujarat 2018
13. Laxmibai Laxmichand Shah Vs Laxmichand Ravaji Shah 1967
14. Pradeep @ Sanjay & Anr. Vs State (Nct Of Delhi) On 2 May, 2011
15. Samiti Khanna Vs Aroon Khanna On 9 April, 1992
16. The State Of Karnataka Vs Mr. Shankar Baburao Kangralkar 2018
17. Vijay Kumar And Anr. Vs The State Of Himachal Pradesh On 25 April, 1978
18.

B. BOOKS AND TREATISES

1. JAIN MP, INDIAN CONSTITUTION LAW ( 7TH EDITION 2014)
2. BASU , DURGADAS SHORTER CONSTITUTION OF INDIA ,14TH EDITION OF 2015
3.

C. DICTIONARIES AND LAW LEXICONS

1. Ayiar Ramanathan P , Advanced Law Lexicon , 3rd Edition , 2005 , Nagpur
2. Garner Bryma , Black’s Law Dictionary , 7th Edition 1999
3. Maria Pracher , The Marital Rape Exemption: A Violation Of A Woman 'S
Right Of Privacy, Volume 11
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INDEX OF AUTHORITIES

D. LEGAL DATABASES
1. Manupatra
2. SCC Online
3. Westlaw
4. Lexis Nexis
5. Indian Kanoon
6.  NALSAR Law Library

E. LEGISLATIONS
1. Adultery Law Sec 497 IPC
2. Code Of Criminal Procedure, 1973
3. Conjugal Rights
4. Domestic Violence Act, 2005
5. Evidence Act 1872
6. Fundamental Rights
7. Indian Divorce (Amendment) Act 2001
8.  Indian Penal Code, 1860
9. Marriage Laws (Amendment) Act 1976
10. Muslim Marriage Act
11. POCSO Act
12. Right To Privacy
13. The Family Courts Act 1984
14. The Special Marriage Act, 1954
15. THE DIVORCE ACT, 1869
16. The Constitution Of India 1950
17. The Code Of Criminal Procedure, 1973
18. The Hindu Marriage Act, 1955
19.

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INDEX OF AUTHORITIES

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STATEMENT OF JURISDICTION

SSTATEMENT
TATEMENT O
OFF JJURISDICTION
URISDICTION

The Hon’ble Court has the jurisdiction to hear the matter whether the
Art. 14,15,21,25 is being violated under the Sec.375, 375A, 376A OF IPC
amendment bill 2019.

1 The Hon’ble court may, in its discretion, grant special leave to appeal
on the judgement, decree, sentence or order in any cause or matter
passed by IPC Ammendment Bill 2019.

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SYNOPSIS OF FACTS

SYNOPSIS OF FACTS

1.A girl named sansa was born in the state of Indus, after completing her primary
education. At the age of 19 her parents married her to Ramasay without her consent
who was 12 years elder to her. After they got married life become a hell for Sansa.
Ramasay was not in love with her, he just wanted to fulfil his physical desire for
sex . She was forced to have sex with him on regular basis Sansa suffered for over a
year. When she did not receive any help from her mother then she left the village and
shifted to Indi. She joined a NGO which wored for women rights , later she became
the head of the NGO. Sansa launched a political party known as women rights party
to rcriminalise marital rape .

2.Government passed IPC Ammendment Bill 2019 as follows

a. In Section 375 the words “Exception.-Sexual intercourse by a man
with his own wife, the wife not being under fifteen years of age, is not
rape” are hereby deleted

b. Insert Section 375 A: Whoever being the husband of a woman has

sexual intercourse without the consent of such woman is said to have
committed the offence of marital rape.

c. Insert Section 376 A: Punishment for Marital Rape: Whoever commits

marital rape shall be punished with imprisonment of either description
for a term which shall not be less than three years but which may extend
for a term of up to seven years and shall also be liable to fine or with
both

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SUMMARY OF ARGUMENTS

ENSURES AN EFFECTIVE
SUMMARY OF ARGUMENTS

Issue 1

Whether the amendment in IPC is against the rights mentioned in Art. 14, 15, and 21 of
the constitution of India?

The amendment of IPC clearly against the rights of art. 14, 15, 19, 21 and 25 as it is given in
the Constitution of India that art. 14 said that the state shall not deny to any person equality
before the law or the equal protection of laws within the territory of India. While sec 375 of
the IPC deals with the rape committed by a man on a woman. It does not account for man and
transgender person. Similarly art.15said that that 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
states that no person shall be deprived of his life or personal liberty except acc. to procedure
estabd. By law. But, sec 375 dose not account for all this rights. Hence, the said amend.
Would be disastrous to the institution of marriage and also for the Indian Const.

Issue 2

Whether the scope of criminal law being misused by the amend. of IPC .

Art. 21 of the Indian constitution states that no person shall be deprived of life and personal
liberty except acc. to procedure estabd. But, acc. to this mentioned amend. dose not account
for every people. As per the NALSA judgement in the case of National Legal Services
Authority V. Union Of India1 which is a landmark decision given by SC of India, which
declared transgender people to be a “Third Gender” , affirmed that the fundamental rights
granted under the const. of India will be equally applicable to trans gender people. But, In the
amend. of IPC sec. 375, only deals with the rape done by man on woman which is clearly
violative for genders other then women. Acc. To sec. 376 of IPC states the punishment for
rape done by men which means its not for the other gender. So, the women can easily take
benefits from the criminal law, to fulfill their requirements. Therefore sec. 376 of IPC should
include punishment of rape for all genders.

Issue 3

Whether the Institution of marriage is being affected by the

amend. of IPC.

Right to privacy which comes under fundamental Rights is clearly violated by the amend. of
IPC. Criminalisation would destroy the sacrosanct Institution of marriage and disturb the
balance of conjugal rights and obligations in a marriage. Penalisation of rape within marriage
would make the state “inteiventionist ” and would be violative of the “right to privacy”
understood to be granted under the const. of India. It would deny the husband the right to
1
National Legal Services Authority V. Union Of India
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SUMMARY OF ARGUMENTS

have sex with his wife and lead to encouragement of the offence of adultery as the husband
would need to satisfy his sexual needs outside the marriage. It would give an opportunity
To the women to avenge their husband by threating to file a complain of marital rape against
them. The law would also have to rely upon the word of the wife, which complicates matters
further since the wife could misuse the laws i.e.similar to the misuse of dowry laws and rape
laws. Since, the husband is no stranger to the wife, it will not have any devasting effect on
her.

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ARGUMENTS ADVANCED
ISSUE 2

ARGUMENTS ADVANCED

ISSUE 1

Whether the amendment in IPC is against the rights mentioned in Art. 14, 15, and 21 of
the constitution of India?

The plea sought that the definition of rape under Sec 375 be held “ultra
vires” for being “discriminatory and Violative of Art. 14(right to equality),
15(prohibition of discrimination on grounds of religion, race, caste,sex…)
and 21 (right to life and personal liberty) of the const. of India.
The petitioner has submitted that the sec applies only to women as
victims and men as perpetrators. It does not take account non-consensual
sexual assault inflicted on a woman by a woman, on a man by another
man, on transgender by another transgender or a man or woman, on a
man by a woman.
The plea referred to the August 2017 order passed by a nine-judge bench
of the top court that declared privacy as a fundamental right and also
cited the NALSA judgment that recognised transgenders as the third
gender.
“It is imperative to note that transgender including but not limited to
homosexuals & bisexual, and men are sequestered from the point of view
of victims of rape under the existing penal laws of the country, despite an
impending need for the same.

1.1 NALSA JUDGEMENT

National Legal Services Authority v. Union of India is a landmark

decision by the  Supreme Court of India, which
declared  transgender  people to be a 'third gender', affirmed that
the  fundamental rights  granted under the Constitution of
India  will be equally applicable to transgender people, and gave
them the right to self-identification of their gender as male,
female or third-gender. This judgement is a major step towards
gender equality in India.[1][2][3][4] Moreover, the court also held
that because transgender people were treated as socially and
economically backward classes, they will be
granted  reservations  in admissions to educational institutions
and jobs
The Court has directed Centre and State Governments to grant legal
recognition of gender identity whether it be male, female or third-
gender:
Legal Recognition for Third Gender : In recognizing the third gender
category, the Court recognizes that fundamental rights are available
to the third gender in the same manner as they are to males and
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ARGUMENTS ADVANCED
ISSUE 2
females. Further, non-recognition of third gender in both criminal
and civil statutes such as those relating to marriage, adoption,
divorce, etc. is discriminatory to the transgender.

1.2 Article 14

As per the art. 14 the state shall not deny to any person equality
before the law or the equal protection of the laws within the
territory of India. The guaranteed under part III of the constitution
are absolute in terms. They are subject to reasonable restrictions
and, therefore, in case of a non citizen also, those rights will be
available subject to such restrictions as may be imposed in the
interest of the state or other important considerations. But art.375
only deals with the rights of women , it does not take account men
rights and transgender rights. Rape can be done by anywhere by
anyone. The men can also be raped by women or by men or by
transgender. So the amend. should done by according to the
equality of all genders without any discrimination.
1.3. Article15
Acc. To art. 15 , it states that the state shall not discriminate
against any citizen on grounds only of religion, race, caste, sex,
place of birth or any of them. It is clearly visible in the sec 375 &
376 of IPC doesn’t mention others genders i.e. men and transgender
(considered as “third gender”). It clearly violates the right for men
and third gender. Sec 375 define”rape” done by man on a woman,
and sec 376 defines, that , who commits rape, shall be punished
with rigorous imprisonment for life or not less than 7 years, which is
only applicable for men , not for women or transgender. Hence,
amend. Of IPC clearly discriminate people on the basis of sex.
1.4. Article 21
Acc. To art. 21 , it states that the no person shall be deprived of his
life or personal liberty except according to procedure established by
law. The operation of Art.21, in sofar as it imposes a procedural
limitation on a law that affects personal liberty, commences and
ends only when that interference ceases. Hence. This article
becomes relevant, as soon as a person is arrested, and it remains
relevant so long as he remains subject to a criminal prosecution
that has resulted or might result in the deprivation of his personal
liberty. Incidentally, this is one reason why Art.21 retains its
relevance even when a person has already become a prisoner.
Similarly sec 375 of IPC curtail the liberty of all husbands and as
well as transgender.

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ARGUMENTS ADVANCED
ISSUE 2
ISSUE 2

Whether the scope of criminal law being misused by the amend. Of IPC

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ARGUMENTS ADVANCED
ISSUE 3

ISSUE 3

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ARGUMENTS ADVANCED
ISSUE 3

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PRAYER

PRAYER

Wherefore, in the light of the facts of the case, issues raised, arguments advanced and
authorities cited, this Hon’ble court may be pleased to:
1. Whether collection of data , biometrics and DNA profiles under the UID scheme
violating RIGHT TO PRIVACY .
2. Whether UID scheme is helping illegal migrants

AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.

And for this, the {} shall as in duty bound, forever humbly pray.
Counsels for the {}

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