Marital Rape Petioner Memo

Team code: TC 04
6th NATIONAL MOOT COURT COMPETITION 2018
September 20-22, 2018
BEFORE THE HON’BLE SUPREME COURT OF SIND
Writ Petition No. 2302 of 2018
Shazia and Justice for Women …..Petitioner
v.
Union of Sind …..Respondent
CLUBBED WITH
SLP No. 1920 of 2018
Javed …..Appellant
v.
State of Madhya Sind …..Respondent
UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS

COMPANION JUSTICES OF SUPREME COURT OF SIND
MEMORIAL FOR SHAZIA AND OTHERS

Memorial For Petitioners
TABLE OF CONTENTS
List of Abbreviations ……………………………………………………… iii
Index of Authorities ………………………………………………………. iv
Statement of Jurisdiction …………………………………………………. viii
Statement of Facts ………………………………………………………… ix
Statement of Issues ……………………………………………………….. xi
Summary of Arguments …………………………………………………... xii
Arguments Advanced……………………………………………………… 1
Prayer……………………………………………………………………….. 20
Bibliography………………………………………………………………... 21
Annexure……………………………………………………………………. 22
ii
LIST OF ABBREVIATIONS
§ Section
¶ Paragraph
A.L.T.(Cri.) Andhra Law Times (Criminal)
Art. Article
A.P. Andhra Pradesh
A.I.R. All India Reporter
All. E.R. All England Law Reports
Cal Calcutta
Cri.L.J Criminal Law Journal
E.C.H.R European Court of Human Rights
E.H.R.R European Human Rights Report
I.C.C.P.R. International Covenant on Civil and Political
Rights
Inter-Am.Ct.H.R. Inter American Court of Human Rights
M.L.J Madras Law Journal
Mad. Madras
Q.B.D. Queen’s Bench Division
S.C. Supreme Court
S.C.C. Supreme Court Cases
U.D.H.R. Universal Declaration of Human Rights
U.S. United States
iii
INDEX OF AUTHORITIES
INDIAN CASE LAWS CITED:
S.No Case title Citations

1. Antulay v. Nayak. A.I.R. 1988 S.C. 1531
2. Auditor General v. Shiv Kumar Yadav. A.I.R. 2015 S.C. 3501.
3. Air India v. Nargesh Meera. A.I.R 1981 S.C. 1829.
4. Ajay Hasia v Khalid Mujid. A.I.R. 1981 S.C. 487.
5. Aman Kumar v. State of Haryana. A.I.R. 2004 S.C. 1497.
6. Anukul Chandra Pradhan v. Union of India. ( 1996 ) 6 S.C.C. 354.
7. Aruna Ramachandra Shanbaug v. Union of India. A.I.R. 2011 S.C. 1290.
8. Bachan Singh v. State of Punjab. 1982 A.I.R 1325.
9. Bandhua Mukti Morcha v. Union of India. A.I.R. 1984 S.C. 802.
10. Basheer v. State of Kerala. 2004 Cri.L.J. 1418.
11. Bodhisattwa Gautam v. Subhra Chakraborty. A.I.R. 1996 S.C. 922.
12. Ceat Ltd. v. Anand Abasaheb Hawaldar. A.I.R. 2006 S.C. 1172.
13. Chairman Railway Board v. Chandrima Das. A.I.R. 2000 S.C. 998.
14. Coffee Board v. Jt. Commercial Tax Officer. A.I.R. 1971 S.C. 870.
15. Nakara v. Union of India. A.I.R 1983 S.C. 130.
16. Daryao v. State of Uttar Pradhesh. A.I.R. 1961 S.C. 1457.
17. District Registrar and Collector v. Canara Bank. (2005) 1 S.C.C. 496.
18. Dr.B.Singh v. Union of India. A.I.R. 2004 S.C. 1923.
19. Francis Coralie v. Union Territory of Delhi. A.I.R. 1978 S.C. 597.
20. Girdhar Shankar Tawade v. State of Maharashtra. A.I.R. 2002 S.C. 2078.
21. Govindh v. State of Madhya Pradesh. A.I.R. 1975 S.C. 1378.
22. Hamdard Dawakhana v. Union Of India. A.I.R. 1960 S.C. 554.
23. Harijai Singh v.In Re:Vijayakumar. A.I.R. 1997 S.C. 73.
24. Hanif Banomiya Shikalkar v. The State of Maharashtra. 1981 Cri.L.J. 1622.
25. Indian Express Newspaper v. Union of India. (1985) 1 S.C.C. 641.

26. Independent Thought v. Union of India.. A.I.R. 2017 S.C. 4904.
27. Justice K.S.Puttaswamy v. Union of India. A.I.R 2017 S.C 4161.
28. Thimmappa v. Chairman, Central Board of Directors, SBI. A.I.R 2001 S.C. 467
iv
29. Kartar Singh v. State of Punjab. 1994 S.C.C (3) 569.

30. Kesavananda Bharathi’s v. State of Kerela. A.I.R. 1973 S.C. 1461.
31. Keshavan v. State of Bombay. A.I.R. 1951 S.C. 128.
32. Kharak Singh v. State of Uttar Pradesh. A.I.R. 1963 S.C. 1295.
33. Kumari Ratnabati Barik v. Chittaranjan Rout. 2000(1) A.L.T. (Cri.) 4.
34. Chandrakumar v. Union of India. A.I.R. 1997 S.C. 1125.
35. Narasimha Rao v. State of Andhra Pradesh. A.I.R. 2001 S.C. 318.
36. Maneka Gandhi v. Union Of India. A.I.R. 1978 S.C. 594.
37. Motor General Traders v. State of A.P. (1984) 1 S.C.C. 222.
38. Mr.X v. Hospital Z. ( 2000 ) 9 S.C.C. 439.
39. Mukesh v. State of NCT of Delhi. A.I.R. 2017 S.C. 2161.
40. Primary Agricultural Co-operative Bank v. Poongodi. (2004)4M.L.J.662.
41. Printers (Mysore) Ltd. v. Commercial Tax Officer. (1994) 2 S.C.C 434.
42. Queen Empress v. Hurre Mohun Mythee. (1890) 18 Cal 149.
43. R.K.Garg v. Union of India. A.I.R 1981 S.C 2138.
44. Rajagopal v. State of Tamilnadu. A.I.R. 1995 S.C. 264.
45. Rajesh Talwar v. Central Bureau of Investigation. 2012 Cri.L.J. 2217.
46. Ram Krishna Dalmia v. Mr. Justice S.R.Tendolkar. A.I.R. 1958 S.C. 538.
47. Ramesh Prasad v. Union of India. A.I.R 2006 S.C 980.
48. Renu v. District and Session Judge, Tis Hazari. A.I.R 2014 S.C. 2175.
49. Romesh Thappar v. State of Madras. A.I.R. 1950 S.C. 124.
50. Rupan Deol Bajaj v. Gill. A.I.R. 1996 S.C. 309.
51. S.P.Gupta v. President of India. A.I.R 1982 S.C. 149.
52. Sagir Ahmed v. State of Uttar Pradhesh. A.I.R. 1954 S.C. 728.
53. Sahara India Real Estate Corporation. Ltd. v. Securities
A.I.R. 2012 S.C. 3829.
and Exchange Board of India.
54. Sakal papers v. Union of India. A.I.R. 1962 S.C. 305.
55. Savitri Devi v. Ramesh Chand. 2003 Cr.L.J. 2759.
56. Secretary, H.S.E.B V. Suresh. A.I.R 1999 S.C. 1160.
57. Shardha v. Dharmpal. A.I.R.2003 S.C. 3450.
58. Shayara Bano v. Union of India. A.I.R 2017 S.C 4609.
59. Shivaji Sahabrao Bobade. v. State of Maharashtra. A.I.R. 1973 S.C. 2622.
60. St. Stephen College v. University of Delhi. A.I.R 1992 S.C 1630.
v
61. State of J&K v. Triloki. (1974) 1 S.C.C. 19.

62. State of Kerala v. N. M. Thomas. A.I.R 1976 S.C 490.
63. State of Madras v.V.G.Row. A.I.R. 1952 S.C. 196.
64. State of Maharashtra v.Madhulkar Narayan. A.I.R. 1991 S.C. 207.
65. State of Punjab v. Gurmit Singh. 1996 CriLJ 1728.
66. State of Uttar Pradesh v Raj Narain. A.I.R. 1975 S.C. 865.
67. State of West Bengal v. Anwar Ali Sarkar. A.I.R 1952 S.C. 75.
68. State v. Major Singh. A.I.R. 1967 S.C. 63.
69. Subramanian Swami v. Union of India. A.I.R. 2016 S.C. 2728.
70. Suchita Srivastava v. Chandigarh Administration. A.I.R. 2010 S.C. 235.
71. Sushil Sharma v. The State (Delhi Administration). 1996 Cri.L.J. 3944.
72. T. Sareetha v. T. VenkataSubbaiah. A.I.R. 1983 A.P. 356.
73. The CPIO, Supreme Court of India vs. Subhash
A.I.R.2010 DELHI 159.
74. Chandra Agarwal.
75. Uday v. State of Karnataka. A.I.R 2003 S.C 1639.
76. Virender v. State of Punjab. A.I.R. 1958 S.C. 986.
77. Zahira Habibullah Sheikh v. State of Gujarat. A.I.R. 2004 S.C. 346.
FOREIGN CASE LAWS CITED:
S.No Case title Citations

78. Associated Press v. United States. (1945) 326 U.S. 1.
79. Curtis Pub. Co. v. Butts. (1967)388 U.S.130.
80. Lindsey V. Natural Carbolic Co. (1910) 220 U.S. 61.
81. Miami Herald v. Tornillo. (1974) 418 U.S. 241.
82. Herrera-Ulloa v. Costa Rica. Inter-Am.Ct.H.R.
(Ser.C) No.107 (2004).
83. N.Y.Times v. Sullivan. (1964) 376 U.S. 255.
84. R (Pretty) v. DPP. (2002) 1 All. E.R. 1.
85. Rosenblatt v. Baer. (1966) 383 U.S. 75.
86. Rosenbloom v. Metromedia. (1971) 403 U.S.29.
87. Roth v. United States. (1957) 354 U.S. 476.
88. Spahn v. Julian. (1967) 387 U.S. 239.
vi
89. R. v. Clarence. 22 Q.B.D. at 57.

90. Stromberg v. California. (1931) 283 U.S. 359.
91. Terminiello v. Chicago. (1949) 337 U.S. 75.
92. Rowe and Davis v. the United Kingdom. (2000) 30 E.H.H.R. 1.
93. Abdulla Ali v. the United Kingdom. E.C.H.R. 226 (2015).
94. Time v. Hill. (1967) 385 U.S. 374.
,
vii
STATEMENT OF JURISDICTION
The petitioners humbly submit that this memorial is in response to two petitions filed before
this Hon’ble Court, and is clubbed together by the Hon’ble Court.
Writ Petition No. 2302 of 2018:
It is henceforth approached before the Hon’ble court under Art.32 as there has been a
violation of fundamental rights. The exception (2) of §376 of the Sind Penal Code is an
unreasonable classification and is violative of fundamental rights provided under Art.14 and
Art.21.
S.L.P. 1920 of 2018:
It is humbly submitted that the SLP is not maintainable as the order passed by the trial court
and upheld by the High Court cannot held is not prejudiced due to influence of media.
The Hon’ble Supreme Court has to jurisdiction to hear both the case.
viii
STATEMENT OF FACTS
[A] BACKGROUND
The Union of Sind is a democratic country who’s Constitution and laws are pari materia to
Union of India. In the year 2017, the Supreme Court of Union of Sind had pronounced a
judgment in a landmark case, invalidating 'Triple Talaq' as a form of divorce under Muslim
Personal Laws. A Bill invalidating Triple Talaq and making it a criminal offence was passed
by Lok Sabha but is still pending before the Rajya Sabha due to political issues.
The appellant, Javed (24) and the petitioner, Swati (21) from Awadh, a city in the State of
Madhya Sind were married under the laws of Islam. Before marriage Swati converted to
Islam and is now called Shazia. During an intense argument Javed had pronounced Triple
Talaq thrice after which Shazia left to her parental home. Javed went to Shazia’s parental
home in an intoxicated state and raped Shazia, who had consented to Javed’s advances due to
fear of life. An FIR was lodged against Javed.
[B] RELEVENT FACTS
The couple got married after duly complying with all the formalities of Nikkah on 21st
August 2017. Before their marriage Javed had persuaded Swati to convert to Islam. On 2nd
November 2016, Javed decided to move with his parents, because of some family problems.
Due to the pressure from Javed, Shazia agreed to live with his parents. The couple shifted to
their in-laws house on 6th January 2017 after which Javed and Shazia started having regular
fights. There were instances in which Javed had badly scolded Shazia in front of his family
due in intense arguments between Shazia and her mother in law. At a family function on 15th
September 2017 in Javed’s house, there was a heated argument and Javed pronounced
‘Talaq’ thrice on Shazia after which Shazia went back to her parent's place. On 21st
November, 2017, Javed texted Shazia, requesting her to meet him and discuss their problems
for which she replied she will be alone that day as her family will not be at home and she did
not want to meet Javed as she wanted time to think about their relationship. On the same
evening, Javed, in an intoxicated state visited Shazia's parent's place where they both had a
heated argument, which angered Javed who lost his control and raped Shazia against her will.
Shazia who feared for her life did not resist much. The next day Shazia, in a state of shock,
narrated her ordeal to her family who immediately, lodged a complaint against Javed for
ix
committing rape against Shazia. The police registered the FIR No. 28/2017 against Javed
under section §375, §498A, §354 and §321 under the Sind Penal Code.
In the State of Madhya Sind, next assembly elections were nearing and thus the case was
highlighted and widely debated in media. The police was under pressure as it was made into a
political issue. Many women NGO's came forward demanding justice for Shazia. The police
started the investigation and filed the charge sheet within a month of registering the FIR.
[C]EVENTS THAT LEAD THE CASE BEFORE THE HON’BLE SUPREME COURT
28th May 2018 Trial Court expedited the matter in 6 months and held that, the accused
was not convicted for rape as the same could not be proved by the State.
The trial court in its judgment further held that the accused was guilty
under §498A and convicted for two years imprisonment and a fine of
Rs. 10,000/-, under §354, convicted for one year simple imprisonment
and for other offences related to women he was convicted for 5 years
imprisonment and fine of Rs10000/- was imposed. The court in its
judgment added that the aforesaid punishments shall run concurrently.
2nd July,2018 Shazia with the help of an NGO 'Justice for women' filed a writ seeking
justice for Shazia and making marital rape an offence under the existing
penal laws of Sind by striking down exception 2 of §375.
August 2018 Javed appealed before the High Court of Madhya Sind contending that
he was not given a fair trial and that the witnesses of the accused were
not heard at length, as the media had already given an impression to the
court that Javed had committed Rape.
10th August, 2018 High court dismissed Javed’s appeal.
5 September 2018 Javed filed a Special Leave Petition contending that he could not be
convicted for §354 as Shazia is his wife, and that he was not given a fair
trial, as it is nothing more than 'media trial'. Javed also contended that
his personal life in live TV channels debate was an infringement of his
Right to Privacy.
Taking the urgency and the constitutional issues involved in both the matters the Supreme
Court clubbed both the matters and is listed for further arguments.
x
STATEMENT OF ISSUES
THE FOLLOWING ISSUES ARE PRESENTED BEFORE THE COURT IN THE

INSTANT MANNER;
S.L.P. NO. 1920 OF 2018:
1. Whether right to fair trial guaranteed under Art.21 of appellant has been
violated?
1.1 That the freedom of press guaranteed under Art.19(1)(a) doesn’t infringe
upon right to fair trial guaranteed under Art.21.
1.2 That there exists no substantial risk of prejudice due to media reports.
1.3 That the judgment of trial court not prejudiced.
2. Whether the conviction of appellant is justified?

2.1 That the appellant caused the outrage of modesty.
2.2 That the appellant had caused cruelty to his wife.
3. Whether right to privacy of appellant has been violated?

3.1 That the right to privacy is a fundamental right.
3.2 That the said matter is of public interest.
3.3 That the media has not infringed the right to privacy.
WRIT PETITION NO. 2302 OF 2018:
4. Whether Writ Petition No. 2302 of 2018 under Art.32 is maintainable?

4.1.That the fundamental rights have been violated.
4.2.That alternative remedy does not bar issue of writ under Art. 32.
5. Whether Exception 2 of §376 of S.P.C is constitutionally valid?

5.1 That the exception is subject to judicial review.
5.2 That the exception is violative of Art.14.
5.3 That the exception is violative of Art.21.
xi
SUMMARY OF ARGUMENTS
1. Whether right to fair trial guaranteed under Art.21 of appellant has been violated?
It is humbly submitted that the media had not released prejudicial reports .Media is the heart
of social and political intercourse. Thus the media has inherent rights to publish the facts and
opinions on a pending case. The trial court had followed the proper procedures and was not
prejudiced in its judgment. Hence the judgment of trial must be upheld.
2. Whether the conviction of appellant is justified?

It is humbly submitted that the conviction of the appellant is a justified conviction. The
appellant with a cruel intent came to Shazia’s house when she was alone and had used
criminal force on her, causing injury. The police after a proper investigation accused the
appellant. The essentials of the charged offences were proved. Hence the judgment of the trial
court should be upheld.
3. Whether right to privacy of appellant has been violated?
The media has given the fundamental right i.e., the right to freedom of speech and expression
under Art.19(1)(a) of the Sind Constitution. The said matter in this instant case is of public
interest and thus the privacy of the appellant is not said to be violated since the exception
clause of Art.19(1)(a) does not include the privacy. Thus, there is no infringement of privacy
of the appellant.
4. Whether Writ Petition No. 2302 of 2018 under Art.32 is maintainable?

It is humbly submitted that the Writ Petition No.2302 of 2018 filed by is maintainable under
Article 32 of the Constitution of Sind. Article 32 provides the right to move the Supreme
Court by appropriate proceedings for the enforcement of the rights conferred by Part III of
the Constitution. It is contended that the petitioners have the locus standi, there is violation of
fundamental right, and Supreme Court has the jurisdiction to hear the present case and
alternative remedy not a bar to maintainability.
5. Whether Exception 2 of §376 of Sind Penal Code is constitutionally valid?

It is humbly submitted that the exception is violative of intrinsic fundamental rights, hence
subject to judicial review under Ar.13(2). There is no intelligible differentia
xii
Having no nexus to the exception and the object attained, hence arbitrary against every
married woman, violative of Art.14. Also, every woman is entitled to her privacy, dignity and
her own bodily integrity which this exception clearly violates thus infringes her rights under
Art.21. Marital rape is also punishable in several common law countries.
xiii
ARGUMENTS ADVANCED
1. WHETHER RIGHT TO FAIR TRIAL GUARANTEED UNDER

ART.21 OF APPELLANT HAS BEEN VIOLATED?
¶1. It is humbly submitted that fair trial means a trial in which bias or prejudice for or against
the accused, the witnesses, or the cause which is being tried is eliminated. 1 If however, ‘bias’
and ‘partiality’ be defined to mean the total absence of pre-conceptions in the mind of the
Judge, then no one has ever had a fair trial and no one ever will.2 A trial uninfluenced by
extraneous pressures is recognized as a basic tenet of justice in Sind and is guaranteed under
Art.213. In the instant case the media had discussed and debated the allegations of marital
rape against the appellant. It is contended by the appellant that he was not given a fair trial, as
his trial was influenced by media reports, thus it is nothing more than 'media trial' and that his
witnesses were not heard at length.
1.1 THAT FREEDOM OF PRESS GUARANTEED UNDER ART.19(1)(a) DOESN’T

INFRINGE UPON RIGHT TO FAIR TRIAL GUARANTEED UNDER ART.21.
¶2. It is humbly submitted that the Media in Sind stands on the pillar of the Constitution of Sind, its
freedom an intrinsic fundamental right implied in the Art.19(1)(a).4 There is no separate guarantee
of freedom of the press and the same is included in the freedom of expression, which is conferred
on all citizens.5 The freedom of speech and expression means the right to express one's convictions
and opinions freely by word of mouth, writing, printing, pictures or any other mode. The
democracy has essentially three pillars viz., legislature, executive and judiciary. Media has become
the fourth pillar of the democracy.6 It highlights the social, economic, cultural and legal problems
of the society. Freedom of Press is necessary for exercise of fundamental freedom of citizens of
‘speech and expression’7
¶3. The counsel humbly submits that media is the heart of social and political intercourse.
Hence the media has inherent rights to publish the facts and opinions on a pending case. 8 The
1
Zahira Habibullah Sheikh v. State of Gujarat, A.I.R. 2004 S.C 346.
2
Ceat Ltd. v. Anand Abasaheb Hawaldar, A.I.R. 2006 S.C. 1172.
3
A.G. v. Shiv Kumar Yadav, A.I.R. 2015 S.C. 3501.
4
Sakal papers v. Union of India, A.I.R. 1962 S.C. 305.
5
Virender v. State of Punjab, A.I.R. 1958 SC. 986 .
6
Printers (Mysore) Ltd. v. Commercial Tax Office, (1994) 2 S.C.C. 434.
7
Hamdard Dawakhana v. Union of India, A.I.R. 1960 S.C. 554.
8
Romesh Thappar v. State of Madras, A.I.R. 1950 S.C. 124.
1
Hon'ble Supreme Court of Sind has observed that the freedom of press is regarded as the
mother of all liberties in a democratic society.9 The Inter-American Court has also indicated
that the media plays an essential role as a vehicle or instrument for the exercise of freedom of
expression and information, in its individual and collective aspects, in a democratic
society.10Freedom of Press is sanctified by our Constitution, validated by four decades
of freedom and indispensable to our future as a Nation. This cannot be diluted based on
baseless allegations. Such contentions of violation of right to free trial being infringed by
freedom of press based on mere publishing of reports must not be entertained.
¶4. Thus it is humbly submitted that the media has only exercised its powers conferred upon
it by the Constitution of Sind. In the instant case nowhere has the media accused or created a
notion that the accused had committed rape. A debate contains both sides of the case and is
not just single sided. There is no infringement upon the right to fair trial by media as it only
performed its duty to enlighten the public by news and views.
1.2 THAT THERE EXIST NO SUBSTANTIAL RISK OF PREJUDICE DUE TO

MEDIA REPORTS
¶5. It is humbly submitted that ‘trial by media’ is a phrase popular in the late 20th century
and early 21st century to describe the impact of television and newspaper coverage on a
person's reputation by creating a widespread perception of guilt or innocence before, or after,
a verdict in a court of law.11 In the instant case media had only discussed and debated the
case as a whole. Nowhere has it been said that the accused had committed the offence of rape
or created any impression that the appellant has committed an offence. The principle of
presump tion of innocence of accused12 has not been violated by the media. Neither is the
accused a victim of sensational journalism as the media had merely conducted debates on the
case and had not published reports stating that the accused had committed marital rape.
Moreover,§3(2) of Contempt of Courts Act,1971 state that an influence before filing of
charge sheet does not attract contempt.13
¶6.In Sahara India Real Estate Corporation. Ltd. v. Securities and exchange Board of India14
popularly known as the “Media Guidelines Case”, the Supreme Court carved out a specific
exception to the rule against restraint of media that such orders have to be passed only in
9
Harijai Singh v. In re:Vijayakumar, A.I.R. 1997 S.C. 73.
10
Herrera-Ulloa v. Costa Rica. 2004 Series C 107,¶117.
11
Praniti Kumari, Media Trial- An Analysis , [2010] 2 M.L.J. (CRL).
12
Anukul Chandra Pradhan v. Union of India,. ( 1996 ) 6 S.C.C. 354.
13
Annexure.
14
A.I.R. 2012 S.C. 3829.
2
cases in which there is real and substantial risk of prejudice to fairness of the trial. Fear of
serious injury cannot alone justify suppression of free speech.15 There is no risk of prejudice
as the media was merely performing its duty. Highlighting a case cannot be held as a
characteristic of media trial as the right to circulate also includes the right to determine the
volume of circulation16. Such debates were also conducted before the police investigation.
Moreover conviction, if any, would be based not on media’s report but what facts are placed
on record.17
¶7. Hence it is humbly pleaded that in the instant case the media had only discharged its
duties and rights conferred by the constitution. The media had a fundamental right to debate
and discuss on a case. It has taken the responsibility to inform the public of the various events
that take place. This includes all other matters in which public have a right to know. Right to
discussion and criticize forms an active part of this right. The purpose of press is to promote
and advance public interest by publishing facts and opinions without which a democratic
mass of people cannot make an informed judgment. It is the primary duty of the courts to
uphold the freedom of press and invalidate any laws which interferes with it contrary to
constitutional mandate.18 Thus the reports of media cannot be said to have violated the right
to fair trial implied in Art.21 of the accused.
1.3 THAT THE JUDGEMENT OF TRIAL COURT NOT PREJUDICED:
¶8. It is humbly submitted that the issue which the media had published and debated was of
the complaint lodged by Shazia which was primarily lodged for rape and to that heinous
offence the appellant has been acquitted by the trial court and the high court. Thus the
contention that the trial court had been influenced by media cannot be held true as he was
acquitted of the very crime the media had highlighted. The appellant has placed the
contention that the media had already created an impression that he had committed rape and
the trial court had given a judgement based on these reports. Judgement of court shall be
based on evidences proved.19. While it is true that Judges are human beings, not automatons,
but it is imperative for a judicial officer, in whatever capacity he may be functioning, that he
must act with the belief that he is not to be guided by any factor other than to ensure that he
shall render a free and fair decision, which according to his conscience is the right one on the
15
Subramanian Swami v. Union of India, A.I.R. 2016 S.C. 2728.
16
Id. 8.
17
Sushil Sharma v. The State (Delhi Administration), 1996 Cri.L.J. 3944.
18
Indian Express Newspaper v. Union of India, (1985) 1 S.C.C. 641.
19
Narasimha Rao v. State of Andhra Pradesh, A.I.R. 2001 S.C. 318.
3
basis of materials placed before him. There is no exception to this imperative.20 The fact that
the trial court had acquitted the appellant from the heinous crime of rape in itself makes it
obvious that the judgement of the trial court was based on evidences produced and not on the
basis of media reports. However neither the trial court nor the high court had held that the
accused had committed rape. This defeats the very substance of the contention of biased
judgement.
¶9.Moreover the trial was also expedited within six months. The Court clarified that
speedy trial means reasonably expeditious trial which is an integral and essential part of the
fundamental right to life and liberty enshrined in Art.2121. The learned trail court has only
exercised its discretion in most appropriate and fair manner under §233(3)22 of Cr.P.C. in
restricting the admissibility as it will only cause vexation and delay the proceedings
unnecessarily. The accused was also given the reasonable benefit of doubt without which he
wouldn’t have been acquitted. Reasonable benefit of doubt is also guaranteed to an accused23.
Hence the various rights of an accused has been upheld by the trial court and it would be
unreasonable to state that the trial court was biased in its judgment
¶10. It is humbly submitted that even if the trial was prejudiced it is necessary to bear in mind
the provisions in sub-section (2) of Section 46524 of Cr.P.C, which provide that in
determining whether any error, omission or irregularity in any proceeding under the Code has
occasioned a failure of justice, the Court has to consider that fact whether the objection could
and should have been raised at an earlier stage in the proceedings25. It shall be no ground for
the accused to raise this issue in fresh in the higher forum when he has not appealed to such
order in the process of trail as the trail cannot be conducted in fresh again.
¶11.Thus it is humbly pleaded that the contention that the trial court had been influenced by
media cannot be held true as he was acquitted of the very crime the media had debated on. It
can be inferred from the judgment of the trial court that the court was not influenced. When it
has not been shown that the adverse publicity had influenced the jury to the point of
20
Rajesh Talwar v. Central Bureau of Investigation, 2012 Cri.L.J. 2217
21
Antulay v. Nayak, A.I.R. 1988 S.C. 1531.
22
Annexure
23
Shivaji Sahabrao Bobade. v. State of Maharashtra, A.I.R. 1973 S.C. 2622.
24
Annexure
25
Hanif Banomiya Shikalkar v. The State of Maharashtra, 1981 Cri.L.J. 1622; Rowe and Davis v. the United
Kingdom, (2000) 30 E.H.H.R. 1.
4
prejudicing the outcome of the proceedings and rendering trial unfair, then there is no
violation of right to fair trial.26
2. WHETHER OR NOT THE ACQUITTAL OF THE APPELLANT IS

JUSTIFIED?
¶12. It is humbly submitted that the conviction of the appellant is a justified conviction. The
police had genuinely charged the appellant with a proper investigation. The appellant has
been convicted for the offences of cruelty under §498A, Assault or use of Criminal Force to
woman with intent to outrage her modesty under §354, Voluntarily causing Grievous Hurt
under §32227 under the Sind Penal Code. It is to be noted that the appellant has been set free
by the trial court for the offence of rape.
2.1 THAT THE APELLANT CAUSED THE OUTRAGE OF MODESTY:
¶13. §354 of the S.P.C. reads as:-
Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to
be likely that he will thereby outrage her modesty, shall be punished with imprisonment of
either description for a term which may extend to two years, or with fine, or with both.
Before this section may apply, the following essentials must be present:
i. There must have been assault or use of criminal force on a woman;

ii. Such assault or use of criminal force must have been made-
a) With an intention to outrage her modesty
b) With knowledge that her modesty was likely to be outraged.28
¶14. Here, woman is defined as a female human being of any age (section 10). The word
‘modesty’ has not been defined in the Code. However in the leading case of Rupan Deol
Bajaj v. Gill 29referring to The Oxford Dictionary, the Supreme Court observed that “modesty
is the quality of being modest and in relation to woman means womanly propriety of
behaviour; scrupulous chastity of thought, speech and conduct. The word “modest” in
relation to woman is defined as decorous in manner and conduct; not forward or lewd; shame
fast”.
26
Abdulla Ali v. the United Kingdom , E.C.H.R. 226 (2015).
27
Annexure.
28
State v. Major Singh, A.I.R. 1967 S.C. 63; Rupan Deol Bajaj v. Gill, A.I.R. 1996 S.C. 309.
29
A.I.R. 1996 S.C. 309.
5
¶15.Also, the counsel would like to highlight the fact that there is no exception to husband
under this section unlike §375 of the Code. Even a husband who outrages his wife’s modesty
is also punished under this section.30
¶16.It is humbly submitted from analysing the facts that the appellant has used criminal force
on his wife knowing that it would outrage her modesty. The phrase, “forced himself upon
her” explains it clearly. Also, it is to be noted that the appellant had voluntarily intoxicated
himself before going to her home, where the incident had happened. Thus it would be
justifiable if the appellant is punished for the said offence.
2.2 THAT THE APPELLANT HAD CAUSED CRUELTY TO HIS WIFE:

¶17. It is humbly submitted that the appellant was convicted under section 498A of the Sind
Penal Code for the offence of causing cruelty to his wife. The trial court also convicted him
for the said offence.
§498A reads as
Whoever, being the husband or the relative of the husband of a woman, subject such woman
to cruelty shall be punished with imprisonment for a term which may extend to three years
and shall also be liable to fine.
For the purposes of this section, ‘Cruelty’ means-
a) Any wilful 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; or
b) Harassment of the woman where such harassment is with a view to coercing her or
any person related to her to meet any unlawful demand for any property or valuable
security or is on account of failure by her or any person related to her to meet such
demand.
¶18. Nevertheless, in any event it needs to prove that the wilful act or conduct of the husband
or his relatives has been a proximate cause for cruelty.31 When there is no intent on the part
of the husband of a woman or his relatives to injure her, a conduct, though wilful and hurts
her feelings, does not amount to cruelty.32
30
Kumari Ratnabati Barik v. Chittaranjan Rout, 2000(1) A.L.T. Cri. 4.
31
Girdhar Shankar Tawade v. State of Maharashtra, A.I.R. 2002 S.C. 2078; Basheer v. State of Kerala, (2004)
Cr. L.J. 264(SC).
32
Savitri Devi v. Ramesh Chand, (2003) Cr.L.J. 2759.
6
¶19.It is humbly submitted that the appellant wilfully caused cruelty to his wife. It is very
much evident from the facts that he had come to her house only to pressurize her. This
conclusion can be arrived by analysing the facts where it has been stated that, knowing that
she was alone in her house, he went there in an intoxicated state. Even a prudent man would
know that this act of him is a wilful act. Hence he should be punished for the said offence.
3. WHETHER RIGHT TO PRIVACY OF APPELLANT HAS BEEN

VIOLATED?
¶20. It is humbly submitted that privacy means “right to be let alone, the right of a person to
be free from unwarranted publicity and right to live without unwarranted interference by the
public in matters which the public is not necessarily concerned”. 33What constitutes an
unwarranted invasion of privacy is not defined. However, courts have taken a positive stand
on what constitutes privacy in different circumstances. Privacy is the right that determines the
non-intervention of secret surveillance and the protection of an individual’s information.
3.1 THAT THE RIGHT TO PRIVACY IS A FUNDAMENTAL RIGHT:
¶21. It is humbly submitted that the right of privacy is a fundamental right. It is a right which
protects the inner sphere of the individual from interference from both State, and non-State
actors and allows the individuals to make autonomous life choices.34 The right to privacy is
protected as an intrinsic part of the right to life and liberty under Art.21 as a part of Part III of
the Sind Constitution as the fundamental right. Thus Art.21 confers every individual, the right
to privacy of his own. With the expansive interpretation of the phrase "personal liberty", this
right has been read into Art.21 of the Sind Constitution.35
¶22.The counsel humbly submits that the right to privacy is protected as an intrinsic part of
the right to life and liberty under Art.21 as a part of Part III of the Sind Constitution as the
fundamental right. Thus Art.21 confers every individual, the right to privacy of his own. With
the expansive interpretation of the phrase "personal liberty", this right has been read
into Art.21 of the Sind Constitution.36 The right to privacy is an essential ingredient of the
right to life.37
33
Bryan Garner,Black Law’s Dictionary(West Group,10th ed. 2014).
34
Justice K.S.Puttaswamy v. Union of India, A.I.R. 2017 S.C. 4161.
35
Rajagopal v. State of Tamilnadu, A.I.R. 1995 S.C. 264 Shardha v. Dharmpal, A.I.R. 2003 S.C. 3450
36
Id.35.
37
Id. 35, PUCL v. Union of India. A.I.R. 2003 S.C.2363.
7
3.2 THAT THE SAID MATTER IS OF PUBLIC INTEREST:

¶23. It is humbly submitted that the higher judiciary of the country has recognized the right to
privacy as a right “implicit in the right to life and liberty guaranteed to the citizens of this
country by Art.21”. The laws of Sind have made some exceptions to the rule of privacy in the
interest of the public. "Assuming that the fundamental rights explicitly guaranteed to a citizen
have penumbral zones and that the right to privacy is itself a fundamental right that
fundamental right must be subject to restriction on the basis of compelling public
interest."38The right to privacy could be restricted on the basis of compelling public interest.39
¶24.In this instant case, it is humbly submitted before the Hon'ble Court that this matter,
although regarded with their family matter, it is of public interest. The definition of public
interest as stated in the report of Public Interest Law, USA, 1976 by the council for Public
Interest Law set up by the Ford foundation in USA. In the aforesaid report, the definition of
public interest is given as under:-
¶25.It is humbly submitted that public interest law is the name that has recently been given to
efforts which provide legal representation to previously unrepresented groups and interests.
Such efforts have been undertaken in the recognition that ordinary marketplace for legal
services fails to provide such services to significant segments of the population and to
significant interests. Such groups and interests include the proper environmentalists,
consumers, racial and ethnic minorities and others.'40
¶26.Literally, public interest means “anything affecting the rights, health or finances of the
public at large. Public interest is a common concern among citizens in the management and
affairs of local, state and national government. It does not mean mere curiosity but is a broad
term that refers to the body politic and the public weal”.41
¶27.It is humbly pleaded that in the present case, the issue regarding the consequences of love
marriage, that too inter-caste marriage is a common concern of the public at large. Also, the
issue regarding the rights of women which have become vulnerable at the hands of their
husbands in the country is a matter of national concern and public interest among the women
across the country.
38
Id. 35 A.I.R. 2003 S.C. 3450;Govindh v. State of Madhya Pradesh, A.I.R. 1975 S.C. 1378 Mr.X v. Hospital Z
;( 2000 ) 9 S.C.C. 439
39
District Registrar and Collector v. Canara Bank, (2005) 1 S.C. 496.
40
Dr.B.Singh v. Union of India, A.I.R. 2004 S.C. 1923.
41
Jeffrey Lehman and Shirelle Phelps, West’s Encyclopaedia of American Law, (2nd ed. 2008).
8
3.3 THAT THE MEDIA HAS NOT INFRINGED THE RIGHT TO PRIVACY:
¶28. It is humbly submitted that where the publication is based upon facts and statements
which are not true, unless the official establishes that the publication was made with reckless
disregard for truth, it would be enough for the member of the press or media to prove that he
acted after a reasonable verification of the facts; it is not necessary for him to prove that what
he has written is true. Of course, where the publication is proved to be false and actuated by
malice or personal animosity, the defendant would have no defense and would be liable for
damages.42
¶29.It is humbly submitted that in this instant case, the media, only after proper and thorough
investigation of the facts of the case, published the matter. Also the media has not published
any information that is wrong. Everything that was published in the media was true.
¶30.It is the right to freedom of speech and expression that gives the media the right to
publish any information. Reasonable restrictions on the exercise of the right can be imposed
by the State in the interests of sovereignty and integrity of the State, the security of the State,
friendly relations with foreign States, public order, decency or morality, or in relation to
contempt of court, defamation or incitement to an offence. In State of Uttar Pradesh v Raj
Narain43 the Supreme Court of Sind held that Art.19(1) (a), in addition, to guaranteeing
freedom of speech and expression, guarantees the right to receive information on matters
concerning public interest.
¶31. It is humbly pleaded that since the foundation of the demand for freedom of the Press in
a democracy as well as its limitations under various regulatory laws is “public interest” 44 in
the free publication of news and views in which the public should be interested as a part of
their political education and for the vindication of their rights, it is essential, at the outset, to
ascertain the tests to determine whether the publication of a particular matter would be called
for in the ‘public interest’.
¶32.It is humbly submitted that the purpose of the press is to advance the public interest by
publishing facts and opinions without which a democratic electorate cannot make reasonable
judgments. Freedom of press is the heart of social and political intercourse. It is the primary
duty of the courts to uphold the freedom of press and invalidate all laws or administrative
42
Id. 35.
43
A.I.R. 1975 S.C. 865.
44
Miami Herald v. Tornillo, (1974) 418 U.S. 241; Associated Press v. United States, (1945) 326 U.S. 1(20).
9
actions which interfere with it contrary to the constitutional mandate.45Even the judicial wing
of the state has benefited from the ethical and fearless journalism and taken suo motu
cognizance of the matters in various cases after relying on their reports and news highlighting
grave violations of human rights.
¶33.In this instant case, it is very much evident that the media has acted reasonably by
properly utilizing their rights which are conferred to them by the constitution of Sind. The
media has the right to freedom of speech and expression guaranteed under Art.19(1)(a).
¶34.The counsel humbly submits that under the guarantee of freedom of expression, every
individual has the right to be informed (or the right ‘to know’) about the matters of public
interest.46 The freedom of the Press, therefore, extends to all public issues and events, 47 and
matters of ‘public interest’, 48
so that political and social changes desired by the people may
be obtained by lawful means.49 Hence, once it is shown that the person whose privacy is
alleged to have been infringed was a ‘public official’50 or a ‘public figure’51 or the report
related to a matter of ‘public interest’,52 then, consistently with the guarantee of freedom of
expression, the report (even though related to the family affairs) could not be punished
unless-
a) It was false
b) It was published with knowledge of its falsity or in reckless disregard of the
truth.53
¶35. Article 19(2) contains the grounds on which restrictions on the freedom of speech and
expression can be imposed:-
(a) Sovereignty and integrity of Sind
(b) Security of the state
(c) Friendly relations with Foreign States
(d) Public Order
(e) Decency or Morality
45
.P. Jain, Indian Constitutional Law, (Wadhwa And Co., 5th Ed., 2005).
46
Time v. Hill, (1967) 385 U.S. 374.
47
Curtis Pub. Co. v. Butts, (1967) 388 U.S. 130 (164).
48
Rosenbloom v. Metromedia, (1971) 403 U.S.29.
49
Roth v. United States, (1957) 354 U.S. 476; Stromberg v. California, (1931) 283 U.S. 359;
Terminiello v. Chicago, (1949) 337 U.S. 75.
50
N.Y.Times v. Sullivan, (1964) 376 U.S. 255; Rosenblatt v. Baer, (1966) 383 U.S. 75.
51
Id.46; Spahn v. Julian, (1967) 387 U.S. 239.
52
Id.46; Id.48.
53
Id.46;Id.47.
10
(f) Contempt of Court

(g) Defamation
(h) Incitement of an offence
It is humbly submitted before this Hon'ble bench that none of these grounds of restrictions
have been vitiated by the media in this instant case. The contention that the media has
tarnished the reputation of the appellant’s family is totally unreasonable and erroneous. Even
though the matter is published before the commencement of the trial, the facts are true to the
extent of the media. It is also proved by the trial court judgment and the High Court judgment
that the published facts are true regarding the cruelty of the appellant.
¶36. Thus, it is evident that the right to privacy of the appellant is not violated since the
matter is of public interest. Also, the claim that the reputation of his family is tarnished is
being totally unreasonable since the facts are proved to be true.
4. WHETHER WRIT PETITION NO.2303 OF 2018 IS

MAINTAINABLE?
¶37. It is humbly submitted that maintainability of writ petition for enforcement of
fundamental rights can be questioned only on the ground of laches, where disputed questions
of facts are involved or enforcement of private or contractual rights is sought to be enforced.
The petition has been filed in time, questions of facts are not involved and fundamental rights
are sought to be enforced. When the Court entertains public interest litigation, it does not do
so in a view to tilting at executive authority or seeking to usurp it but its attempt is only to
ensure the legislation is framed for the benefit of the handicapped and to protect them against
violation of their basic human rights.54
4.1.THAT THE FUNDAMENTAL RIGHTS HAVE BEEN VIOLATED:

¶38. It is humbly submitted that in Suchita Srivastava v. Chandigarh Administration55 the
right to make a reproductive choice was equated with personal liberty under Art.21 of the
Constitution, privacy, dignity and bodily integrity. It includes the right to abstain from
procreating. The discussion on the bodily integrity of a girl and the reproductive choices
available to her is important only to highlight that she cannot be treated as a commodity
54
Bandhua Mukti Morcha v. Union of India, A.I.R. 1984 S.C. 802.
55
A.I.R. 2010 S.C. 235.
11
having no say over her body or someone who has no right to deny sexual intercourse to her
husband.
¶39.The counsel humbly pleads that the human rights of a woman is very much the same
whether she is married or not and deserve recognition and acceptance. Thus in the instant
case right to equality guaranteed under Art.14 is also violated as the differentiation between
married and an unmarried woman for the offence of rape is unreasonable.
4.2.THAT ALTERNATIVE REMEDY DOES NOT BAR ISSUE OF WRIT UNDER

ART. 32:
¶40. It is humbly submitted that when a breach of fundamental right is made in the petition
there, the provisions of other remedies do not stand in the way of exercising power under Art.
32 of the Constitution of India. It was held in the case of Coffee Board v. Jt. Commercial Tax
Officer56 that it is erroneous to assume that before the jurisdiction of the Supreme Court could
be invoked the applicant must either establish that he has exhausted all other alternative
remedies.
Thus this writ petition is maintainable in the Hon’ble Supreme Court of Sind.
5. WHETHER EXCEPTION 2 OF §376 OF SIND PENAL CODE IS

CONSTITUTIONALLY VALID?
¶41. The idea of the sacrosanct institution of marriage dished out by the mainstream Sind
cinema is a myth and is contrary to women perceptions of reality. Though marital rape is the
most common and repugnant form of masochism in Sind society, it is hidden behind the iron
curtain of marriage. Social practices and legal codes in Sind mutually enforce the denial of
women sexual agency and bodily integrity, which lie at the heart of women human rights.
The law does not treat marital rape as a crime. Even if it does, the issue of penalty remains
lost in a cloud of legal uncertainty. The legal system must be forced to accept rape within
marriage as a crime.
¶42.It is respectfully submitted that marital rape is a non-consensual act against a woman
where she is terribly abused both physically and mentally. The definition of rape remains the
same, i.e. sexual intercourse or sexual penetration when there is lack of consent. 57The
exception58 of rape is totally a grave violation of fundamental rights of women. Rape per se is
56
A.I.R. 1971 S.C. 870, ¶ 877.
57
§375, Sind Penal Code, 1860, Annexure.
58
Supra 57.
12
an offence against the woman violating her dignity and self-respect in other words; rape is
rape immaterial of whether it is done by her husband or a third person. This Hon’ble Court
has held in Bodhisattwa Gautam v. Subhra Chakraborty59 that rape as a deathless shame and
the gravest crime against human dignity. Against a woman’s will a man forcing her for an
intercourse and being not termed as a crime is completely violative of Art.14 and Art.21 of
part III of The Sind constitution.
5.1 THAT THE EXCEPTION IS SUBJECT TO JUDICIAL REVIEW:

¶43. The counsel humbly submits before this Hon’ble Court that the exception under §375 of
Sind Penal Code is subject to judicial review. The courts in a federal constitution are sentinels
on the qui vive very rightly regarded as the guardian of the constitution and protector of the
rights of individuals.60 Judicial review is the corner-stone of constitutionalism, which implies
limited government.61The main object of article 13 is to secure the paramouncy of the
Constitution regarding fundamental rights.62 Clause (1) of article 13 provides that the existing
laws which clash with the exercise of the fundamental rights conferred by Part III of the
Constitution shall, to that extent, be void. 63
‘Courts ‘of today cannot and do not any longer
remain passive with the negative attitude, merely striking down a law or preventing
something being done.”64 The Supreme Court has figuratively characterized this role of the
court as that of a sentinel on the ‘qui vive’.65
¶44.It is humbly submitted that in Kesavananda Bharathi’s v. State of Kerela,66 it was clearly
emphasized that “as long as fundamental rights exist and are a part of the constitution the
power of judicial review has to be exercised with a view to see that the guarantees afforded
by those rights are not contravened”.67 The judges of the superior court have entrusted with
the task of upholding the constitution and to this end have been conferred the power to
interpret it.68 Thus, judicial review has become an integral part of our constitutional system.69
In this instant case it is humbly submitted that the exception is arbitrary thus violative of
Art.14. Also, right to live with human dignity affecting the bodily integrity of a woman is
59
A.I.R. 1996 S.C. 922.
60
Bachan Singh v. State of Punjab, 1982 A.I.R 1325, Kartar Singh v. State of Punjab 1994 S.C.C (3) 569.
61
S. C. Dash, The Constitution of India: A Comparative Study.(5th ed.1994).
62
Renu v. District and Session Judge, Tis Hazari, A.I.R. 2014 S.C. 2175.
63
Keshavan v. State of Bombay, A.I.R. 1951 S.C. 128.
64
Tamil Nadu Co-operative Societies Act, 1983, Sec.76(1)(b); Special officer,, Vellakovil Primary Agricultural
Co-operative Bank v. Poongodi, (2004)4M.L.J.662.
65
State of Madras v.Row, A.I.R. 1952 S.C. 196.
66
A.I.R. 1973 S.C. 1461.
67
Ajay Hasia v Khalid Mujid, A.I.R. 1981 S.C. 487.
68
Chandrakumar v. Union of India, A.I.R. 1997 S.C. 1125.
69
Id. 67.
13
evident hence a clear violation of Art.21. The above fundamental rights are intended not only
to protect the individuals rights but they are based on high public policy. 70 Thus depriving a
person of his personal liberty and violating Art.14 and Art.21, the rights which are distinct
and separate entity,71 regarded as the intrinsic fundamental rights of Part III of the Sind
Constitution.
5.2 THAT THE EXCEPTION IS VIOLATIVE OF ART.14:

¶45. It is humbly submitted that the true meaning and scope of Art.14 have been explained in
several cases72 by the Supreme Court. The equality clause under Art.14 does not speak
merely of formal equality before law but embodies the concept of real and substantive
equality, strikes at this inequality.73The impugned exception of §375, S.P.C. is classified and
completely discriminatory only on the basis of married and unmarried women. Art.14 permits
classification but prohibit class legislation.74 The classification in this exception is arbitrary.
It is humbly submitted that in the case of Ram Krishna Dalmia v. Mr. Justice
S.R.Tendolkar,75 It was observed that:
In order to pass the test for permissible classification two conditions must be fulfilled,
namely—
 The classification must be founded on an intelligible differentia which distinguishes

persons or things that are grouped together from others left out of the group
 The differentia must have a rational relation to the object sought to be achieved by the
statute in question.76
The classification, however, must not be “arbitrary, artificial, or evasive” but must be based
on some real and substantial distinction bearing a just and reasonable relation to the object
sought to be achieved by the legislation.77If the classification satisfies the test laid down in
the above propositions, the law will be declared constitutional.
¶46. It is pleaded that in the instant case the classification of the married and unmarried
women is irrational and has no nexus to the object to be attained. The provisions of the act at
hand claims to preserve the sanctity of the institution of marriage by exempting marital rape
70
Daryao v. State of Uttar Pradhesh, A.I.R. 1961 S.C. 1457.
71
Maneka Gandhi v. Union of India, A.I.R. 1978 S.C .597.
72
Garg v. Union of India A.I.R 1981 S.C. 2138 , Motor General Traders v. State of Andhra Pradhesh,. (1984) 1
S.C.C 222, Id. 65
73
Secretary, H.S.E.B v. Suresh, A.I.R 1999 S.C. 1160.
74
Nakara v. Union of India A.I.R. 1983 S.C.130.
75
A.I.R. 1958 S.C. 538.
76
Thimmappa v. Chairman, Central Board of Directors, SBI, A.I.R. 2001 S.C. 467.
77
Id.72.
14
from the ambit of punishable offences. In the guise of preserving the institution of family and
marriage the individual rights of the women and their right to freedom of choice is trifled.
After the Supreme Court recognizing right to privacy as a distinct part of fundamental right to
life every person is entitled to determine who their conjugal partner shall be and when she
shall indulge in intimate relations.78 Consent for marriage does not give the husband the right
to violate his spouse at any point of time such a construction is antithetical to the concepts of
right to individual liberty79.
¶47. The counsel humbly submits that fairer sex cannot be made to suffer such gross violation
of their basic human and constitutional rights due to some vague notion of preserving marital
relations. We see that countries around the world have recognized marital rape as a distinct
offence that warrants punishment under the law. To absolve a criminal act of its vile character
and to make it a statutory exception violates the fundamental principle of Parliamentary
democracy, a basic feature of the Sind Constitutionalism.80 The society that is to have
equality in every other sphere is the mandate of the constitution.81Private sphere is no
exception to the constitutional mandate. Each person is entitled to privacy of their self and
their body.82
¶48. It is humbly submitted that as per the exception this heinous crime to an unmarried
woman is not an offence for the married women. For all other purposes, it is considered rape
when a man has sexual intercourse with a woman without her consent or with her consent if
she’s below 18 years of age.83Therefore, it follows the same logic that it should be considered
rape if a woman is married too as there is no rationale behind why this exception has been
granted for husbands. As said in the case of Sagir Ahmad v. State,84whether a classification is
reasonable should be judged more on common sense than on legal subtleties, this very
classification, even on mere practical and a sensible common view is irrational.
¶49.It is humbly pleaded that in the absence of a just cause to the classification, the
classification is deemed discriminatory and ex facie violative of Art.14.85This is not only a
callous and cruel act but an open insult to Sind womanhood, the most sacrosanct and
78
Independent Thought v, Union of India, A.I.R. 2017 S.C. 4904.
79
ShayaraBano v. Union of India, A.I.R. 2017 S.C. 4609.
80
Ramesh Prasad v. Union of India, A.I.R. 2006 S.C. 980.
81
State of Kerala v. N. M. Thomas , A.I.R. 1976 S.C. 490; Gupta v. President of India, A.I.R. 1982 S.C. 149.
82
Aruna Ramachandra Shanbaug v. Union of India, A.I.R. 2011 S.C. 1290, Id. 14
83
Uday v. State of Karnataka , A.I.R. 2003 S.C. 1639.
84
A.I.R. 1954 S.C. 728
85
State of West Bengal v. Anwar Ali Sarkar, A.I.R. 1952 S.C. 75.
15
cherished institution.86Equal protection of laws means subjection to equal laws applying to all
in the same circumstances.87 There should not be any discrimination between one person and
another in regards to the subject matter of the legislation their position is the same or
substantially similar.88 If the State leaves the existing inequalities untouched by laws, it fails
in its duty of providing equal protection of its laws to all persons.89In State of West Bengal v.
Anwar Ali Sarkar90 this Hon'ble Court held that it the protection afford by the article is not a
mere eye-wash but it is a real one and unless a just cause for discrimination on the basis of a
reasonable classification is put forth as a defense, the statute has to be declared
unconstitutional.
¶50. The counsel humbly submits that no just cause has been shown in the present instance.
The result is that the appeals fail and are dismissed. The exception under §375 of S.P.C. is
not a reasonable classification, and thus, violates the protection guaranteed under Art 14 of
the Constitution. It takes away a woman’s right of choice and indeed effectively deprives her
of bodily autonomy and her personhood. Thus, the classification is unnecessary,
unintelligible and thus violates the test of classification under Art. 14.
5.3 THAT THE EXCEPTION IS VIOLATIVE OF ART.21:

¶51. It is humbly submitted that marital rape also violates the Right to Privacy as guaranteed
under Art.21 of the Constitution of Sind. The guarantee of human dignity forms a part of
Art.21. It must be noted that dignity is linked to personal self- realization and autonomy. It
has been stated in the Maneka Gandhi v. Union of India91 case that the ‘right to live’ is not
merely confined to physical existence but includes within its ambit the ‘right to live with
human dignity’. A similar view was taken up in the Francis Coralie92 case which said that
the right to live is not restricted to mere animal existence. The inhibition against its
deprivation extends to all those limits and faculties by which life is enjoyed.93
¶52.It is humbly pleaded that the personal liberty of a woman includes her right to live with
human dignity and this includes her right to choose what she wants to do with her body and
her right to consent to sexual intercourse. In light of the right to privacy, dignity and bodily
integrity, there should be no restriction on a person’s decision to participate or not participate
86
Air India v. Nargesh Meera , A.I.R. 1981 S.C. 1829.
87
Lindsey v. Natural Carbolic Co., (1910) 220 U.S. 61.
88
State of Jammu and Kashmir v. Triloki, (1974) 1 S.C.C. 19.
89
St. Stephen College v. University of Delhi , A.I.R. 1992 S.C. 1630.
90
Id. 86.
91
Id. 71.
92
Francis Coralie v. Union Territory of Delhi , A.I.R. 1978 S.C. 597.
93
Kharak Singh v. State of Uttar Pradesh, A.I.R. 1963 S.C. 1295.
16
in a sexual activity.94It is submitted that rape is not only a crime against the woman alone but
it is a crime against the entire society. It is a crime against the basic human rights. From the
above it is clearly noted that rape violates Art.21 as it infringes her privacy and bodily
integrity as such the same applies even for marital rape. Merely just for the sole reason that a
woman is married to a man it doesn’t mean that a man can take undue advantage and force
her to have sexual intercourse with him.
¶53.It is humbly submitted a woman has her own rights to protect her body, her integrity, and
her privacy, without her consent against her will any man who does such an act is punishable.
No person has the right to enjoy her without any regard to the question of safety to her. 95 This
Hon’ble Supreme Court in State of Maharashtra v. Madhulkar Narayan96 this Hon'ble Court
held that every woman is entitled to sexual privacy and it is not open for any person to violate
her privacy as and when he pleased. Every woman is entitled to protect her person if there is
any attempt to violate it against her wish and that same protection must be given here also. It
is also contended that a woman is not a man's plaything and he cannot take advantage of it in
order to satisfy his lust and desires by fooling a woman into consenting to sexual intercourse
simply because he wants to indulge in it.
¶54.It is humbly submitted that in the case of R v. Clarence97 it was held that if a wife
lawfully refused sexual intercourse and if the husband imposed it by violence then he would
be punishable for the crime committed. In plethora of cases the Hon’ble Supreme Court has
declared that rape is a gross violation of the woman’s privacy and personal liberty. In
Chairman Railway Board v. Chandrima Das98 it was held that “rape” amounts to the
violation of the Fundamental Rights guaranteed under Art.21 of the Constitution and married
women must also be protected under that.
¶55.it is humbly submitted that the Hon’ble Court in State of Punjab v. Gurmit Singh 99 it was
held that the rapist not only violates the victim’s privacy and personal integrity, but inevitably
causes serious psychological as well as physical harm. Any right to privacy must encompass
and protect the personal intimacies of the home, the family, marriage, motherhood,
procreation and child rearing.100
94
Suchita Srivatsava v. Chandigarh Administration , A.I.R. 2010 S.C. 235.
95
Queen Empress v.Hurre Mohun Mythee, (1890) 18 Cal. 149.
96
A.I.R. 1991 S.C. 207.
97
22 Q.B.D. at 57.
98
A.I.R. 2000 S.C. 998.
99
1996 Cri.L.J. 1728.
100
Sareetha v. VenkataSubbaiah A.I.R. 1983 A.P. 356.
17
¶56.It is pleaded that a woman’s personal liberty will also include her right to consent to
sexual intercourse. ‘Consent’ as ‘ an act of reason accompanied with deliberation , the mind
weighing , as in a balance , the good and evil on each side’ 101also consent can be defined as,
‘Consent supposes three things – a physical power, a mental power and a free and serious use
of them. Hence, it is that if consent be obtained by intimidation , force, meditated, imposition,
circumvention, surprise, or undue influence, it is said to be treated as delusion and not as a
deliberate and free act of the mind’.102
¶57.The Petitioner humbly contends that the sanctity of human life is probably the most
fundamental of the human social values and it is recognized by the internationally recognized
statements of human rights.103 It is essential in marital rape that direct and circumstantial
evidence be taken into consideration. Jury reports and forensic reports are crucial in proving
marital rape. Further if the court is not satisfied, it may search for evidence which would lend
assistance to her testimony.104 Justice Verma Committee105 formed after the Nirbhaya’s
case106a report recommending changes in the marital rape and keep it in consonance with the
UNCEDAW107 recommendations. It stated that the signatories
“Should widen the definition of rape in its Penal Code to reflect the realities of sexual abuse
experienced by women and remove the exception of marital rape from the definition of rape”
Further, Art.253 of the Constitution provides that the Parliament can make any law
implementing any treaty or convention made in an international body. Therefore, the Court
can very well take into consideration the recommendations made by the UNCEDAW.
¶58.The Petitioner further submits that the offence of marital rape has been criminalized in
many countries across the world. In England marital rape was not criminalized and the
husband was given the immunity from committing such an act. But in 1991 the offence of
marital rape was criminalized, and the husband was held guilty of committing rape against
his wife. It is also submitted that USA which held marital rape as not an offence has also
criminalized it and held that marriage cannot be held as a license to forcibly “rape” the wife.
101
Stroud Judicial Dictionary, (Sweet and Maxwell, 9th ed.,2017).
102
William Jowitt, Jowitt’sDicttionary on English Law, ( II Edn., Vol.1).
103
R (Pretty) v. DPP, (2002) 1 All E.R. 1.
104
Aman Kumar v. State of Haryana A.I.R. 2004 S.C. 1497.
105
Justice Verma Report , ‘Gender justice and India’s obligation under International Conventions’, at
http://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.p
df.
106
Mukesh v. State of N.C.T. of Delhi. A.I.R. 2017 S.C. 2161.
107
UN Committee on the Elimination of Discrimination Against Women,Third Periodic Report on India.¶23
(C.E.D.A.W. C.IND. C.O.3), 2007.
18
One of the recent countries to criminalize marital rape is South Korea. It held that sexual acts
which took place under threat or violence will amount to rape irrespective of the marital
status.
Other countries which criminalized marital rape would include Canada, Germany, New
Zealand, Nepal and many other countries.
¶59.It is humbly submitted that the exception clause of §375 does not criminalize the offence
of marital rape if the wife is over fifteen years of age. This exception clause is also
considered as violative of Art.21 of the Constitution. It is also argued that UN Declaration on
the Elimination of Violence against Women considers marital rape as one of the elements of
violence against women The Committee on the Elimination of Discrimination against
Women (C.E.D.A.W.) has recommended the exemption of marital rape under §375.108 In the
instant case the Petitioner humbly contends that Marital Rape is violative of the fundamental
rights guaranteed under the Sind Constitution, hence there is a clear violation of a
Constitutional provision and this Hon’ble Court is empowered to strike down the exception
clause from §375.
¶60.It is humbly submitted that the exception under the section guarantees the husband away
from conviction when he has a sexual intercourse with his legally wedded wife against her
consent. This facilitates the husband to get away from the other offences such as outraging
the modesty of a women and causing injury to her when done during the sexual intercourse as
he as exempted from the whole act thus cannot be convicted even for those offences. This
further is completely against the woman, breaking her more down and violating natural
justice.
108
Supra 107.
19
PRAYER
Wherefore in the light of issues raised, arguments advanced and the authorities cited, it is
humbly prayed that this Hon’ble court may be pleased to hold, adjudge and declare that:
1. The trial be declared unbiased, impartial, fair and not a media trial.
2. The conviction be justified and the sentence of the trial court be upheld.
3. The media not being violative of the right to privacy.
4. The offence of marital rape be penalized under the Sind Penal Code.
and pass any other order or decree that the Hon’ble court may deem fit in interest of justice,
equity and good conscience.
All of which is humbly prayed,
Counsel for the Petitioner.
20
BIBLIOGRAPHY
STATUTES AND RULES
1. Constitution of Sind,1949.
2. Sind Penal Code,1860.
3. Code of Criminal Procedure,1973.
4. Contempt of Courts Act,1971.
BOOKS REFERRED
1. Black’s Law Dictionary.

2. Mahendra Pal Singh, V.N. Shukla Constitution of India, Twelfth Edition, Eastern
Book Company.
3. Clifford Grobstein, “Science and the unborn: choosing Human futures (Basic Books.
1988) .
4. Govind Mishra, “Privacy: A Fundamental Right Under the Indian Constitution,”
5. Justice Hidayatullah, The Constitution of India.
6. H.M. Seervai, The Constitution of India.
7. Durga Das Basu, The Constitution of India.
8. Aravind P Datar, Commentary on the Constitution of India.
9. V.N. Shukla, The Constitution of India.
10. Ratanlal and Dheerajlal, Indian Penal Code.
11. P.S.A Pillai, Indian Penal Code
12. Dr. Sir H S Gaur’s, Penal Law of India.
13. Bhatuklal , Commentary on the Indian Penal Code
ONLINE RESOURCES
1. www.manupatrafast.com.
2. www.scconline.com.
3. www.heinonline.org
4. www.jstor.org
5. www.proquest.com
6. www.lexisnexis/in/legal
21
ANNEXURE
Constitution of Sind,1949.
Art.14. Equality before law The State shall not deny to any person equality before the law or
the equal protection of the laws within the territory of India Prohibition of discrimination on
grounds of religion, race, caste, sex or place of birth
Art.19. Protection of certain rights regarding freedom of speech etc
(1) All citizens shall have the right
a) to freedom of speech and expression;
b) to assemble peaceably and without arms;
c) to form associations or unions;
d) to move freely throughout the territory of India;
e) to reside and settle in any part of the territory of India; and
f) omitted
g) to practice any profession, or to carry on any occupation, trade or business
Art.32. Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs
in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution
Art.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
22
(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.
Art.253. Legislation for giving effect to international agreements Notwithstanding anything

in the foregoing provisions of this Chapter, Parliament has power to make any law for the
whole or any part of the territory of India for implementing any treaty, agreement or
convention with any other country or countries or any decision made at any international
conference, association or other body
Sind Penal Code,1860.
§90. Consent known to be given under fear or misconception.—A consent is not such a
consent as it intended by any section of this Code, if the consent is given by a person under
fear of injury, or under a misconception of fact, and if the person doing the act knows, or has
reason to believe, that the consent was given in consequence of such fear or misconception;
or Consent of insane person.—if the consent is given by a person who, from unsoundness of
mind, or intoxication, is unable to understand the nature and consequence of that to which he
gives his consent; or Consent of child.—unless the contrary appears from the context, if the
consent is given by a person who is under twelve years of age.
§320 the following kinds of hurt are only designated as “grievous”:-
i. Emasculation
ii. Permanent privation of the sight of either eye
iii. Permanent privation of the hearing of either ear
iv. Privation of any member or joint
v. Destruction or permanent impairing of the powers of any member or joint
vi. Permanent disfiguration of the head or face
vii. Fracture or dislocation of a bone or tooth
viii. Any hurt which endangers life or which causes the sufferer to be during the space
of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
§322 Voluntarily causing grievous hurt.—Whoever voluntarily causes hurt, if the hurt which
he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt
which he causes is grievous hurt, is said “voluntarily to cause grievous hurt.”
23
§375. Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted,
has sexual intercourse with a woman under circumstances falling under any of the six
following descriptions:—
(First) Against her will.
(Secondly) Without her consent.
(Thirdly) With her consent, when her consent has been obtained by putting her or any person
in whom she is interested in fear of death or of hurt.
(Fourthly)With her consent, when the man knows that he is not her husband, and that her
consent is given because she believes that he is another man to whom she is or believes
herself to be lawfully married.
(Fifthly) With her consent, when, at the time of giving such consent, by reason of
unsoundness of mind or intoxication or the administration by him personally or through
another of any stupefying or unwholesome substance, she is unable to understand the nature
and consequences of that to which she gives consent.
(Sixthly) With or without her consent, when she is under sixteen years of age. Explanation.—
Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
§320 - Grievous hurt
The following kinds of hurt only are designated as "grievous":--
First.--Emasculation.
Secondly.--Permanent privation of the sight of either eye.
Thirdly.--Permanent privation of the hearing of either ear,
Fourthly.--Privation of any member or joint.
Fifthly.--Destruction or permanent impairing of the powers of any member or joint.
Sixthly.--Permanent disfiguration of the head or face.
Seventhly.--Fracture or dislocation of a bone or tooth.
Eighthly.--Any hurt which endangers life or which causes the sufferer to be during the space
of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
24
Criminal Procedure Code,1973.
§233. Entering upon defence.

(3) If the accused applies for the issue of any process for compelling the attendance of any
witness or the production of any document or thing, the Judge shall issue such process unless
he considers, for reasons to be recorded, that such application should be refused on the
ground that it is made for the purpose of vexation or delay or for defeating the ends of justice.
§465. Finding or sentence when reversible by reason of error, omission irregularity.

(2) In determining whether any error, omission or irregularity in any proceeding under this
Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure
of justice, the Court shall have regard to the fact whether the objection could and should have
been raised at an earlier stage in the proceedings.
Contempt of Courts Act, 1971
§3. (2) Notwithstanding anything to the contrary contained in this Act or any other law for
the time being in force, the publication of any such matter as is mentioned in sub-section (1)
in connection with any civil or criminal proceeding which is not pending at the time of
publication shall not be deemed to constitute contempt of court.
Explanation.--For the purposes of this section, a judicial proceeding--

A. is said to be pending--
I. in the case of a civil proceeding, when it is instituted by the filing of a plaint or
otherwise,
II. in the case of a criminal proceeding under the Code of Criminal Procedure, 1898 (5 of
1898)1, or any other law--
i.where it relates to the commission of an offence, when the chargesheet or
challan is filed, or when the court issues summons or warrant, as the case may
be, against the accused.
25

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6th NATIONAL MOOT COURT COMPETITION 2018

September 20-22, 2018

BEFORE THE HON’BLE SUPREME COURT OF SIND

Writ Petition No. 2302 of 2018

Shazia and Justice for Women …..Petitioner

Union of Sind …..Respondent

SLP No. 1920 of 2018

State of Madhya Sind …..Respondent

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS

MEMORIAL FOR SHAZIA AND OTHERS

List of Abbreviations ……………………………………………………… iii

Index of Authorities ………………………………………………………. iv

Statement of Jurisdiction …………………………………………………. viii

Statement of Facts ………………………………………………………… ix

Statement of Issues ……………………………………………………….. xi

Summary of Arguments …………………………………………………... xii

INDIAN CASE LAWS CITED:

S.No Case title Citations

25. Indian Express Newspaper v. Union of India. (1985) 1 S.C.C. 641.

29. Kartar Singh v. State of Punjab. 1994 S.C.C (3) 569.

61. State of J&K v. Triloki. (1974) 1 S.C.C. 19.

FOREIGN CASE LAWS CITED:

S.No Case title Citations

89. R. v. Clarence. 22 Q.B.D. at 57.

this Hon’ble Court, and is clubbed together by the Hon’ble Court.

Writ Petition No. 2302 of 2018:

S.L.P. 1920 of 2018:

[B] RELEVENT FACTS

10th August, 2018 High court dismissed Javed’s appeal.

THE FOLLOWING ISSUES ARE PRESENTED BEFORE THE COURT IN THE

S.L.P. NO. 1920 OF 2018:

2. Whether the conviction of appellant is justified?

3. Whether right to privacy of appellant has been violated?

WRIT PETITION NO. 2302 OF 2018:

4. Whether Writ Petition No. 2302 of 2018 under Art.32 is maintainable?

5. Whether Exception 2 of §376 of S.P.C is constitutionally valid?

2. Whether the conviction of appellant is justified?

3. Whether right to privacy of appellant has been violated?

4. Whether Writ Petition No. 2302 of 2018 under Art.32 is maintainable?

5. Whether Exception 2 of §376 of Sind Penal Code is constitutionally valid?

1. WHETHER RIGHT TO FAIR TRIAL GUARANTEED UNDER

1.1 THAT FREEDOM OF PRESS GUARANTEED UNDER ART.19(1)(a) DOESN’T

1.2 THAT THERE EXIST NO SUBSTANTIAL RISK OF PREJUDICE DUE TO

1.3 THAT THE JUDGEMENT OF TRIAL COURT NOT PREJUDICED:

2. WHETHER OR NOT THE ACQUITTAL OF THE APPELLANT IS

i. There must have been assault or use of criminal force on a woman;

2.2 THAT THE APPELLANT HAD CAUSED CRUELTY TO HIS WIFE:

For the purposes of this section, ‘Cruelty’ means-

3. WHETHER RIGHT TO PRIVACY OF APPELLANT HAS BEEN

3.2 THAT THE SAID MATTER IS OF PUBLIC INTEREST:

(f) Contempt of Court

4. WHETHER WRIT PETITION NO.2303 OF 2018 IS

4.1.THAT THE FUNDAMENTAL RIGHTS HAVE BEEN VIOLATED:

4.2.THAT ALTERNATIVE REMEDY DOES NOT BAR ISSUE OF WRIT UNDER

5. WHETHER EXCEPTION 2 OF §376 OF SIND PENAL CODE IS

5.1 THAT THE EXCEPTION IS SUBJECT TO JUDICIAL REVIEW:

5.2 THAT THE EXCEPTION IS VIOLATIVE OF ART.14:

 The classification must be founded on an intelligible differentia which distinguishes

5.3 THAT THE EXCEPTION IS VIOLATIVE OF ART.21:

3. The media not being violative of the right to privacy.

All of which is humbly prayed,

Counsel for the Petitioner.