RGNUL INTRA MOOT COURT COMPETITION 2019

COMPILED LIST OF CLARIFICATIONS

Kukoo, Gaitonde and Dr. Parulkar

1. Did sexual intercourse between Kukoo and Gaitonde involve penetration?

Yes.
2. Was there anal/oral intercourse between Kukoo and Gaitonde during their relationship?
Yes.
3. What was the gender of Gaitonde and Dr. Parulkar?
Gaitonde and Dr. Parulkar were both males.
4. Did Kukoo have a relationship with Dr. Parulkar before meeting Gaitonde or was it
simultaneous with a relationship with Gaitonde?
Kukoo engaged in intercourse with Dr. Parulkar for the first time on February 14, 2019.

DNA Test

5. Could the results of the DNA Test be clarified?

The results of the DNA test revealed that Kukoo had XY chromosomes. Owing to the
presence of the Y chromosome in the reports, Inspector Sartaj Singh only filed a
chargesheet under Section 377 of the HPC.

Appeal Procedure

6. Are the rules of the Dhillika High Court para materia to that of the Delhi High Court?
Yes.
7. Was the appeal directed by the State of Dhilika through the Public prosecutor or did the
victim file it in her individual capacity?
Immediately after the Trial Court judgment, Gaitonde filed an appeal in the Dhillika
High Court. Subsequently, Kukoo also filed a cross-appeal in her individual capacity. The
matters were tagged together for hearing. Since Gaitonde filed the appeal before Kukoo
did, his matter is to be treated as the Lead matter. Thus, the cause title for the present
hearings will be Gaitonde v. State & Anr.

Miscellaneous

8. Is the Transgender Persons (Protection of Rights) Bill, 2018 pari material to the
Transgender Persons (Protection of Rights) Bill, 2016 in India?

Yes.
9. Is Indian history and mythology similar to Hind history and mythology?
Yes.
10. Is Ram Manohar Lohiya Hospital a government hospital?
No.
 RGNUL INTRA MOOT COURT COMPETITION 2019
MOOT PROPOSITION
(Clarifications incorporated)

1. Kukoo [hereafter, ‘the prosecutrix’] is a 24-year-old doctor employed at Ram Manohar

Lohiya Hospital in Dhillika, Hind. Kukoo was born as an intersex person. Since she
identified as a female, at the age of 21 years, she underwent a Sex Reassignment Surgery.
However, due to time constraints and exigencies of her professional life, she did not
register the change in Government/Official Records.
2. Ganesh Gaitonde [hereafter, ‘the appellant’] is a 26-year-old male nurse who is also
employed at Ram Manohar Lohiya hospital.
3. In March 2017, Kukoo met Gaitonde and they became attracted to each another. In April
2017, Gaitonde rented an apartment where they started living-in together. At the
apartment, they often indulged in sexual and carnal intercourse (including but not limited
to oral and anal sex) and Gaitonde promised to marry Kukoo eventually.
4. On December 17, 2018, the Lower House of the Republic of Hind passed the
Transgender Persons (Protection of Rights) Bill 2018. The Bill provides that transgender
persons have the right to have a right to self-perceived gender identity and that the District
Magistrate may issue a Certificate of Identity recognizing such gender. The Bill was initially
introduced in the Lower House on August 2, 2016 and is currently pending before the
Upper House of the Republic of Hind.
5. In March 2019, their relationship became strained when Gaitonde discovered that Kukoo
had engaged in sexual intercourse with her male colleague Dr. Parulkar. Kukoo had
engaged in intercourse with Dr. Parulkar for the first time on February 14, 2019. As a
consequence, Kukoo and Gaitonde often fought with each other and on April 2, 2019,
Kukoo stormed out of the apartment threatening to never return again.
6. On April 17, 2019, Kukoo along with her brother Kaleen Bhaiya [hereafter, ‘the
Informant’] went to the Tuglaq Road Police Station, Dhillika to register an FIR against
Gaitonde. The Informant narrated the chain of events to the officer on duty, Inspector
Sartaj Singh and detailed how Gaitonde had indulged in repeated sexual and carnal
intercourse with Kukoo after promising to marry her.
7. On being informed that the prosecutrix was born as an intersex person, Inspector Sartaj
Singh refused to register an FIR under Section 376 of the Hind Penal Code, 1860 [herafter,
‘HPC’]. He informed Kukoo that a Biological test/Corbett test would be needed to
ascertain her gender. Once Kukoo agreed to the test, a DNA test was conducted on her.
The results of the DNA test revealed that Kukoo had XY chromosomes. Thus, Inspector
Sartaj Singh filed a chargesheet under Section 377 of the HPC but refused to file charges
under Section 376 of the HPC.
8. On the basis of the chargesheet filed and evidence produced, the Sessions Court
conducted the trial. At trial, Gaitonde maintained that while they had discussed the
prospect of getting married sometime in the future, consent for intercourse was not
obtained on that basis. Kukoo pleaded that since she identified as a female and had already
undergone a Sex Reassignment Surgery, charges under Section 376 must sustain.
9. Based on evidence at trial, the Sessions Court found the following:

a. The charge under Section 376 cannot be sustained since the Biological test
revealed that Kukoo is a male.
b. The charge under Section 377 has been proven and thus the accused is
sentenced to five years imprisonment.
10. Immediately after the Trial Court judgment, Gaitonde filed an appeal in the Dhillika High
Court against the conviction. Subsequently, Kukoo also filed a cross-appeal in her individual
capacity against the acquittal under Section 376 and against the quantum of sentence. The
matters were clubbed/tagged together for hearing. Since Gaitonde filed the appeal before
Kukoo did, his matter is to be treated as the Lead matter and the cause title of the Lead
matter is Gaitonde v. State & Anr. The Court framed the following issues:

! Issue 1: On what basis should the gender of Kukoo be determined?

! Issue 2: Was Kukoo’s Constitutional Right to Dignity violated due to the

conducting of the Biological test?
! Issue 3: Is the appellant guilty of the offence under Section 376, HPC?

! Issue 4: Is the appellant guilty of the offence under Section 377, HPC?
The laws of Hind are pari material to the laws of India. The parties are free to
put forth other questions of law apart from the four issues mentioned above. No
additional facts may be presumed. Arguments are to be restricted only on the merits of
the case.

This moot proposition has been framed by Mr. Raghav Mendiratta, Batch of 2019 - RGNUL and
Legal Researcher, Columbia Global Freedom of Expression.