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TEAM: TC- 77

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RGNUL INTRA MOOT COURT COMPETITION, 2019

ON SUBMISSION BEFORE THE HONOURABLE HIGH


COURT OF DHILLIKA

Criminal Appeal No. ____ of 2019


Under Section 386 of the Code of Criminal Procedure, 1973

In the matter of:

GANESH GAITONDE
(APPELLANT)

V.

STATE OF DHILLIKA & ANR.


(RESPONDENT)

MEMORANDUM for APPELLANT


RGNUL INTRA MOOT COURT COMPETITION, 2019

TABLE OF CONTENTS

TABLE OF ABBREVIATIONS ................................................................................................. V


TABLE OF AUTHORITIES ..................................................................................................... VI
STATEMENT OF JURISDICTION ...................................................................................... VIII
STATEMENT OF FACTS ......................................................................................................... IX
ISSUES RAISED......................................................................................................................... XI
SUMMARY OF ARGUMENTS .............................................................................................. XII
ARGUMENTS ADVANCED ....................................................................................................... 1

I. THAT PROSECUTRIX’S GENDER SHOULD BE DETERMINED ON THE BASIS OF

PSYCHOLOGICAL EVALUATION ................................................................................................. 1

A. THAT THE PROSECUTRIX’ RIGHT TO SELF DETERMINATION OF GENDER HAS BEEN DERIVED
FROM THE NALSA JUDGEMENT AND IS FORTIFIED BY HER PSYCHOLOGICAL EVALUATION ........ 1

B. THAT THIS RIGHT ALSO HAS ROOTS IN INTERNATIONAL CONVENTIONS AND LEGISLATION
MADE BY OTHER STATES ............................................................................................................. 3

II. THAT PROSECUTRIX’S CONSTITUTIONAL RIGHT TO DIGNITY WAS NOT VIOLATED DUE
TO CONDUCTING OF THE BIOLOGICAL TEST ................... ERROR! BOOKMARK NOT DEFINED.

A. THAT THERE WAS AN APPLICATION OF THE PRINCIPLE OF REASONABLENESS .............ERROR!


BOOKMARK NOT DEFINED.
B. THAT THE TEST CONDUCTED WAS NOT ARBITRARY...... ERROR! BOOKMARK NOT DEFINED.
C. THAT THE TEST HAD BEEN CONDUCTED IN FURTHERANCE OF THE DUE PROCESS OF LAW
ERROR! BOOKMARK NOT DEFINED.

III. THAT THE APPELLANT IS NOT GUILTY OF THE OFFENCE UNDER SECTION 376 OF THE
HPC..............................................................................................................................................
7

A. THAT THE DEFINITION OF RAPE U/S 375(2) OF THE HPC HAS NOT BEEN FULFILLED .............. 7

i. That the Prosecutrix’ consent was free of any misconception................................................ 9


ii. That the Appellant had no valid reason to believe that the Prosecutrix’ consent was
vititated.......................................................................................................................................
10

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B. THAT THERE WAS NO MALA FIDE INTENTION ON THE APPELLANT’S PART ............................. 11
C. THE PROSECUTRIX’ SEXUAL INVOLVEMENT WITH DR. PARULKAR DAMAGED HER

RELATIONSHIP WITH THE APPELLANT ....................................................................................... 11

IV. THAT THE APPELLANT IS NOT GUILTY OF THE OFFENCE UNDER SECTION 377 OF THE
HPC..........................................................................................................................................12

PRAYER ................................................................................................................................... XIII

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TABLE OF ABBREVIATIONS

Abbreviations Expansion
India Const. Constitution of India

¶ Paragraph

Art. Article

AIR All India Reporter

S.C.C. Supreme Court Cases

Anr. Another

U.S. United States

Ker. Kerala

MP Madhya Pradesh

Ker Kerala

AP Andhra Pradesh

HPC Hind Penal Code

LGBTQI Lesbian, Gay, Bisexual, Transgender, Queer


and Intersex

US Const. Constitution of the United States

Amend. Amendment

UP Uttar Pradesh

UK United Kingdom

TN Tamil Nadu

US United States

EHRR European Human Rights Review

UN United Nations

u/s under section

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TABLE OF AUTHORITIES

Cases

Abdul Salam v. State of MP, (2006) SCC OnLine MP 676. ................................................... 10


Deelip Singh v. State of Bihar, (2005) 1 SCC 88. ..................................................................... 8
Deepak Gulati v. State of Haryana, (2013) 7 SCC 675. ............................................................ 9
Gobind v. State of MP, (1975) 2 SCC 148. ............................................................................... 5
Goodwin v. The UK, (2002) 35 EHRR 18. .................................................................................
KS Puttuswamy v. Union of India, (2017) 10 SCC 1. ............................................................... 1
Lalita Kumari v. Govt. of UP, (2014) 2 SCC 1. ........................................................................ 6
Nangai v. Supdt. of Police, (2014) SCC OnLine Mad 988........................................................ 1
National Legal Services Authority of India v. Union of India, (2014) 5 SCC 483. .................. 1
Navtej Johar v. Union of India, (2018) 10 SCC 1. .................................................................... 2
PUCL v. Union of India, (1997) 1 SCC 301.............................................................................. 5
Sharda v Dharmpal, (2003) 4 SCC 493. .................................................................................... 6
Shilpi Elenjikal v. State of Uttarakhand, MANU/TN/2324/2017.............................................. 2
Suresh Koushal v. Naz Foundation, (2014) 1 SCC 1. ............................................................. 12
Tessy James v. DG of Police, (2018) SCC OnLine Ker 2140. .................................................. 6
Uday v. State of Karnataka, (2003) 4 SCC 46. .......................................................................... 8
Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 SCC 647. .................................. 4
Vishaka v. State of Rajasthan, (1997) 6 SCC 241 ..................................................................... 3

Statutes

Code of Criminal Procedure, 1973.


Gender Identity, Gender Expression and Sex Characteristics Act 2015.
Gender Recognition Act (Act No. 7/2004) (UK).
Indian Penal Code, 1860.

Other Authorities

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International Commission of Jurists, Yogyakarta Principles (2007). ........................................ 3


UN General Assembly, Universal Declaration of Human Rights (1948). ................................ 3

Dictionaries

Merriam Webster’s Dictionary...................................................................................................6


Stroud’s Judicial Dictionary of Words and Phrases (9th ed.). ................................................... 5

Constitution of India, 1950.


US Constitution.

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STATEMENT OF JURISDICTION

The Appellant, Ganesh Gaitonde approaches the Hon’ble High Court of Dhillika against the
Respondents, Prosecutrix and the State of Dhillika under Section 386 of the Code of Criminal
Procedure, 1973.

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STATEMENT OF FACTS

BACKGROUND

 Kukoo (hereafter, the Prosecutrix) is a 24-year-old doctor employed at Ram Manohar


Lohiya Hospital in Dhillika, Hind. The prosecutrix was born as an intersex person and
since she identified as a female, she underwent Sex Reassignment Surgery (SRS) at
the age of 21. However due to time constraints and other requirements of her
professional life, she was not able to register the required changes in the Government
Records.
 Ganesh Gaitonde (hereafter, ‘the Appellant’) is a 26-year-old nurse, who was also
employed at the same hospital as the prosecutrix. The prosecutrix and the appellant
became attracted to each other when they met in March 2017. In April 2017, the
appellant rented an apartment where the both of them started cohabiting.
 They regularly indulged in sexual/carnal intercourse (including but not limited to anal
and oral sex) with each other. The appellant had promised to marry the prosecutrix
eventually during the course of their relationship.

PASSING OF THE BILL IN THE LOWER HOUSE

 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 self-perceived gender identity and that the
District Magistrate may issue a Certificate of Identity recognizing such gender. The
Bill was originally introduced in the Lower House on August 2, 2016 and is currently
pending before the Upper House of the Republic of Hind.

DETERIORATION OF THE RELATIONSHIP AND FIR AGAINST THE APPELLANT

 In March 2019, the relationship between the prosecutrix and the appellant soured as
he discovered that she had engaged in sexual intercourse with her colleague, Dr.
Parulkar, on February 14, 2019. Consequentially, the both of them started having
frequent fights and on April 2, 2019, the prosecutrix stormed out of the apartment
threatening to never return again.
 On April 17, 2019, the prosecutrix along with her brother, Kaleen Bhaiya (hereafter
‘the Informant’), went to Tughlaq Road Police Station, Dhillika, to register an FIR
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against the appellant. The informant narrated the chain of events to the officer on
duty, Inspector Sartaj Singh, detailing how the appellant had engaged in repeated
sexual/carnal intercourse with the prosecutrix after promising to marry her.
 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 (hereafter the ‘HPC’) and informed her that a Corbett/Biological Test would be
required to ascertain her gender.
 The results of the DNA test revealed that the prosecutrix had XY Chromosomes.
Hence, Inspector Sartaj Singh filed a chargesheet under Section 377 of the HPC but
refused to file charges under Section 376 of the penal code.
FINDINGS OF THE SESSIONS COURT AND APPEAL TO THE HIGH COURT
 On the basis of the chargesheet filed and evidence produced, the Sessions Court
conducted the trial. At trial, the appellant maintained that while they had discussed the
prospects of getting married sometime in the future, consent for intercourse was not
obtained on that basis.
 The prosecutrix pleaded that since she identified as a female and had undergone SRS,
the charges u/s 376 of the HPC must sustain.
 Based upon the evidence on trial, the Sessions Court found that (i) the charges u/s 376
HPC could not be sustained since the biological test revealed that the prosecutrix is a
male and, (ii) the charges under Section 377 HPC had been proven and thus the
appellant was sentenced to five years’ imprisonment.
 The prosecutrix approached the Dhillika High Court against the acquittal u/s 376 HPC
and the quantum of sentence while the appellant approached the Hon’ble Court
against the conviction u/s 377 HPC.

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ISSUES RAISED

I. ON WHAT BASIS SHOULD THE GENDER OF PROSECUTRIX BE DETERMINED?

II. WHETHER THE PROSECUTRIX’ CONSTITUTIONAL RIGHT TO DIGNITY WAS


VIOLATED DUE TO THE CONDUCTING OF THE BIOLOGICAL TEST?

III. WHETHER THE APPELLANT IS GUILTY OF THE OFFENCE UNDER SECTION 376,
HPC?

IV. WHETHER THE APPELLANT IS GUILTY OF THE OFFENCE UNDER SECTION 377,
HPC?

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SUMMARY OF ARGUMENTS

In an attempt to satisfy the Hon’ble High Court of Dhillika on the issues raised, the counsels
on behalf of the Appellant present a four-fold argument.

1. THAT PROSECUTRIX’ GENDER SHOULD BE DETERMINED ON THE BASIS OF

PSYCHOLOGICAL EVALUATION
It is humbly submitted before the Hon’ble Court that the Prosecutrix has the right to self-
determination of gender because, firstly, she derives this right from the NALSA
judgement and her claim to be recognized as a female is fortified by her psychological
evaluation (A). Secondly, the roots of this right stem from the international conventions
and legislation in other States which are in consonance with the Fundamental Rights
provided under the Constitution (B).
2. THAT PROSECUTRIX’ CONSTITUTIONAL RIGHT TO DIGNITY WAS NOT VIOLATED DUE

TO CONDUCTING OF THE BIOLOGICAL TEST

It is humbly submitted that the Corbett Test conducted on the prosecutrix is not violative
of her right to dignity because, firstly, that the conducting of the test followed the
principle of reasonableness(A). Secondly, the right to privacy of the prosecutrix was
violated (B). Thirdly, the conducting of the test falls under an exception to Section 154
CrPC, by virtue of the Supreme Court’s observation (C).
3. THAT THE APPELLANT IS NOT GUILTY OF THE OFFENCE UNDER SECTION 376 OF THE
HPC
It is humbly submitted before the Hon’ble court that the appellant is not guilty of the
offence u/s 376 of the HPC because, firstly, section 375(2), HPC has not been fulfilled
(A). Secondly, at the time of intercourse, the appellant’s intentions were not mala fide (B).
Thirdly, the appellant’s promise could not materialize due to the prosecutrix’ own
conduct (C).
4. THAT THE APPELLANT IS NOT GUILTY OF THE OFFENCE UNDER SECTION 377 OF THE
HPC
It is humbly submitted before the Hon’ble Court that the appellant is not guilty of the
offence under section 377 of the HPC because the prosecutrix is a woman. Hence, they
shared a heterosexual relationship which is not covered under the ambit of the said
section as it provides for sexual offences between homosexual adults and offences against
minors and animals.

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ARGUMENTS ADVANCED

I. THAT PROSECUTRIX’ GENDER SHOULD BE DETERMINED THE BASIS


OF A PSYCHOLOGICAL EVALUATION

1. It is humbly submitted before the Hon’ble Court that the Prosecutrix has the right to self-
determination of gender because, firstly, she derives this right from the NALSA judgement and
the same is fortified by her psychological evaluation (A). Secondly, the roots of this right stem
from the international conventions and legislation in other States which are in consonance with
the Fundamental Rights provided under the Constitution (B).

A. THAT THE PROSECUTRIX’ RIGHT TO SELF DETERMINATION OF GENDER HAS BEEN


DERIVED FROM NALSA AND HAS BEEN FORTIFIED BY HER PSYCHOLOGICAL
EVALUATION

2. It is humbly submitted that the Prosecutrix was born as an intersex person. “Intersex” is a
general term used for a variety of conditions in which a person is born with a reproductive or
sexual anatomy that doesn't seem to fit the typical definitions of female or male.1 In most cases
doctors assign the gender of new-born babies on the basis of visible physical autonomy.2
3. In the NALSA judgement,3 it was held that for availing the right to self-determination of
gender, SRS is not a prerequisite since the said right is a Fundamental Right provided under
Articles 19(1)(a) and 21 of the Constitution.4 As per the said judgement, only the psychological
test has to be applied for ascertaining a person’s gender.
4. The right to a self-perceived gender identity has been upheld by the nine-judge bench
judgement in KS Puttaswamy v. Union of India.5 As per the said judgement, the rights of
transgenders are protected under Article 19(1)(a) of the Constitution. The State cannot prohibit,

1
--, What is intersex?, INTERSEX SOCIETY OF NORTH AMERICA (Jul.23, 2019, 7:18 PM),
http://www.isna.org/faq/what_is_intersex.
2
Nangai v. Supdt. of Police, (2014) SCC OnLine Mad 988.
3
National Legal Services Authority of India v. Union of India, (2014) 5 SCC 483.
4
INDIA CONST. art. 19(1)(a); art. 21.
5
KS Puttaswamy v. Union of India, (2017) 10 SCC 1.

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restrict or interfere with a transgender’s expression of personality regarding behavior or


presentation.6
5. The NALSA judgement has also been upheld by the five-judge bench judgement in Navtej
Singh Johar v. Union of India,7 opining that the right to a self-perceived gender identity is not
only a fundamental right guaranteed under Articles 19 and 21 but is also a basic human right as
per the Yogyakarta Principles.8
6. In K. Gowtham Subramaniyam v. The Controller of Examination,9 the Madras High Court
referred to the NALSA judgement and upheld the petitioner’s right to self-determination of
gender. The court had based its decision on the basis of the SRS certificate and the psyche
evaluation of a qualified practitioner.10
7. In Shilpi Lawrence Elenjikal v. State of Uttarakhand,11 the Uttaranchal High Court was of the
view that the guidelines that the NALSA judgement has laid down should be followed and even
issued a directive to the State Government for protecting the rights of various persons similar to
the petitioner.
8. Since the prosecutrix had undergone SRS,12 it can be clearly inferred that she must have
undergone the steps prerequisite to it, i.e., (i) obtaining an approval letter from a qualified
mental health professional regarding her gender dysphoria, for initiating the process a of
hormone replacement therapy; (ii) clearance letters from two qualified mental health
professionals indicating approval to undergo SRS.13 Therefore, the psyche evaluations by
various mental health professionals is a proof of the prosecutrix’ gender being female as per
NALSA.
9. It is humbly submitted before the Hon’ble Court that since there lies a discrepancy between the
self-determined gender of the prosecutrix and the official government records, her right to a
self-perceived gender identity as a woman shall be recognized owing to her psychological
evaluation by a qualified medical practitioner, which is a prerequisite for an SRS.

6
supra at note 3.
7
Navtej Johar v. Union of India, (2018) 10 SCC 1.
8
International Commission of Jurists, Yogyakarta Principles (2007).
9
K. Gowtham Subramaniyam v. The Controller of Examination, 2017 (3) RCR (CIVIL) 700.
10
Id.
11
Shilpi Elenjikal v. State of Uttarakhand, MANU/TN/2324/2017.
12
¶1, Fact Sheet.
13
Richie Gupta & Anil Murarka, Treating transsexuals in India: History, prerequisites for surgery and legal issues,
42 INDIAN JOURNAL OF PLASTIC SURGERY 230-31 (2009).

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B. THAT THIS RIGHT HAS ITS ROOTS IN INTERNATIONAL CONVENTIONS AND


LEGISLATION MADE BY OTHER STATES

10. It is humbly submitted that there is an absence of any legislation granting the right of self-
determination for the transgender community. The Constitution fosters respect for international
law and treaty obligations14 and empowers the Parliament to inculcate these into the domestic
law.15 Therefore, in the absence of any domestic laws, it is permissible to incorporate
international conventions and norms to counter the issue.16
11. The Yogyakarta Principles17 that had been adopted at Indonesia in 2006, is a comprehensive
document dealing with the rights of the LGBTQII community. It also duty-bounds the nations to
legislate for the protection of this often vulnerable and minority community.18 The principles
explain how it is the basic human right of an individual to identify with whatever gender he
wishes to and how there should be equality in treatment of all the individuals.19
12. After the judgement in Goodwin v. The United Kingdom,20 the Gender Recognition Act, 200421
was passed by the British Parliament so as to provide legal recognition to the acquired gender of
transsexuals. This Act makes it possible for the transgender citizens to acquire new birth
certificates.
13. Reports prepared by a registered medical practitioner, as well as a chartered psychologist, are
mandatorily required to be submitted when applying to the panel. The gender recognition
certificate is given only when the panel is satisfied that the applicant had been experiencing
gender dysphoria and had lived in the acquired gender for two years before applying for the
change.22
14. The Supreme Court has opined that accepted international conventions are enforceable when
they elucidate and effectuate fundamental rights under the Constitution.23 The Supreme Court

14
Art 51(c) IND Const. (check format)
15
Art 253 IND Const.
16
Vishaka v. State of Rajasthan, (1997) 6 SCC 241.
17
Supra note 8.
18
International Commission of Jurists, Yogyakarta Principles (2007).
19
UN General Assembly, Universal Declaration of Human Rights (1948).
20
Goodwin v. The UK, (2002) 35 EHRR 18.
21
Gender Recognition Act (Act No. 7/2004) (UK).
22
Id.
23
supra note 1.

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has held that when not contrary to municipal law, the rules of customary international law would
be deemed to be incorporated in the domestic law.24
15. From the aforementioned international conventions and the legislative intent of States it has to be
concluded that there is a dire need for legislation on the basis of the judicial authority, i.e.,
NALSA for regulating the rights and protection of the LGBTQI community. The legislative
intent of Hind is evident from the fact that the Transgender Persons (Protection of Rights) Bill,
2018 has been passed in the Lower House.25
16. It is most respectfully submitted that the Respondent’s self-determined identity of a female
should be recognized and parameters such as, (i) Diagnosis of distress by gender dysphoria, (ii)
societal perception as a woman, and (iii) living as the acquired sex for a reasonable amount of
time, should be taken as the basis to fortify her claim.

II. THAT THE PROSECUTRIX’ CONSTITUTIONAL RIGHT TO DIGNITY


WAS NOT VIOLATED DUE TO THE CONDUCTING OF THE
BIOLOGICAL TEST

17. It is humbly submitted that the Corbett Test conducted on the prosecutrix was not violative of her
right to dignity because, firstly, there was an application of the principle of reasonableness (A).
Secondly, the test conducted was a not violation of her privacy (B). Thirdly, the conducting of
the test falls under an exception to Section 154 of the Code of Criminal Procedure (C).

A. THAT THE CONDUCTING OF THE TEST FOLLOWED THE PRINCIPLE OF


REASONABLENESS

18. It is respectfully submitted before the court that the biological test conducted on the prosecutrix,
followed the principle of reasonableness. Equality is the antithesis of arbitrariness.26 Reasonable
classification based on intelligible differentia is permitted under Article 14, and only a
procedure, which is unarguably unreasonable is shot down by the said Article.27

24
Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 SCC 647.
25
supra note at para 12.
26
Maneka Gandhi v. Union of India, 1978 AIR 597.
27
Sunil Batra v. Delhi Admn., (1978) 4 SCC 494.

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19. In Maneka Gandhi v. UOI,28 the Supreme Court observed that the procedure prescribed by the
law for depriving a person of his personal liberty must be just, right and fair, and not arbitrary,
fanciful or oppressive. Otherwise, it would be no procedure at all and the requirement of Article
21 of the Indian Constitution would not be satisfied. Later, Justice V. R. Krishna Iyer stated that
Article 21 may be treated as a counterpart of the due process clause in American Constitution.29
20. The classification was done to achieve a legitimate goal which was to ascertain that there was a
possibility of a cognizable offence being committed. It was not aimed towards finding veracity in
the commission of the offence. Furthermore, it was a reasonable and just step taken by the officer
and cannot be a violation under Article 14 and Article 21 of the Hind Constitution. The
prosecutrix was denied of her right to dignity and privacy but this denial was based on
reasonable, just and fair grounds.
21. It is submitted that it was not arbitrary as the officer had the right to conduct a preliminary
inquiry owing to the circumstances of the case. Further, it was not fanciful as the officer did not
decide her gender for the purpose of the FIR at his own discretion, but determined it on the basis
of a medical test. This was done in the interest of justice and to avoid an incorrect registration of
the FIR.
22. It is humbly submitted before the court that conducting the test is in congruence with the test of
reasonableness and the decision taken by Inspector Sartaj Singh, was based on reasonable
classification as there existed an ambiguity pertaining to the sex of the Respondent and the lack
of official documents testifying the same.

B. THAT THE CONDUCTING OF THE TEST WAS NOT IN VIOLATION OF HER PRIVACY UNDER
ARTICLE 19(1)(A) AND 21 OF THE CONSTITUTION

23. It is humbly submitted that the fundamental right to privacy that is derived from Article 19(1)(a),
(d) and 21,30 are not absolute and are subject to “a reasonable basis for intrusion on the basis of a
compelling State interest”.31 It is pertinent to emphasize that privacy is an essential facet of the
dignity of the human being.32

28
supra note 32.
29
U.S. Const. amend. V & XIV.
30
PUCL v. Union of India, (1997) 1 SCC 301.
31
Gobind v. State of MP, (1975) 2 SCC 148.
32
supra at 5.

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24. If there is sufficient material to bolster the need for a medical examination, it would not be
considered of the violation of the right to privacy under Article 21.33 In Tessy James v. State of
Kerala,34 the court, invoking the Parens Patriae doctrine, ordered a psychological test of the
transgender person being cautious about whether they were violating the right to privacy and
dignity or not. Since, there were allegations on part of the detenu’s mother of mental incapacity
and instability.
25. The intent behind the test was to ascertain the sex of the Respondent for the purpose of filing a
FIR. The test was directed towards the interest of the state and to avoid the registration of a false
FIR, for a crime that could not have possibly committed. Thus, it was necessary to intrude into
the private space of the Respondent to ensure the procedure of law is not exploited.
26. It is humbly submitted before the court that the test was not a violation of the right to freedom of
expression guaranteed under Article 19(1)(a) and 21 as a reasonable intrusion into the right to
privacy of a person derived from the freedom of expression is allowed in the interest of the state
and to maintain public order.

C. THAT THE CONDUCTING OF THE TEST FALLS UNDER AN EXCEPTION TO SECTION 154
CRPC, BY VIRTUE OF THE SUPREME COURT’S OBSERVATION.

27. It is most humbly submitted before the Hon’ble court that conducting a preliminary enquiry
before the registration of the FIR passes the basic test under Art 14 and 21 as conducting the test
was not illegal, the purpose of the test was not arbitrary and the officer had a legitimate reason
for the enquiry.35 In Lalita Kumari vs Govt.Of U.P,36 the Supreme Court held that a preliminary
enquiry may be held before the registration of FIR against a cognizable offence under Section
154 of the CrPC in “cases where there is abnormal delay/laches in initiating criminal
prosecution”.
28. In light of the facts and circumstances, it is important to note that the appellant had been
cohabiting with the prosecutrix for two years and they often indulged in sexual/carnal

33
Sharda v Dharmpal, (2003) 4 SCC 493.
34
Tessy James v. DG of Police, (2018) SCC OnLine Ker 2140.
35
supra at 5.
36
Lalita Kumari v. Govt. of UP, (2014) 2 SCC 1.

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intercourse, the consent for which was not based on the promise of marriage, as per the statement
of the accused-appellant. A two-year time gap needs to be sufficiently justified by the
prosecutrix, devoid of which, the benefit of doubt would be in favour of the Appellant.
29. It is further submitted that the procedure undertaken by Inspector Sartaj Singh was in the interest
of justice and was aimed at ascertaining the commission of a cognizable offence. It can be easily
inferred that he was not trying to ascertain the veracity of the allegation but only intended on
determining the sex of the prosecutrix to confirm whether she could have been a victim of rape
under the penal code.
30. According to the facts and circumstances of the instant case, Inspector Sartaj was informed about
the prosecutrix’ birth as an intersex and not about the SRS surgery.37 It is also important to know
that the prosecutrix did not register the change in her Government records. The discrepancy
between her claim of being a female and her legal documents, formed a reasonable ground for
the Inspector to order the Corbett test to determine her sex.
31. It is humbly submitted that the police are duty-bound to ensure public order and, therefore,
Inspector Singh had to take recourse to conduct the biological test as the situation called for it.
This was in the interest of public order to avoid the abuse of the process of law through a
complaint which could prove to be doubtful because of the complainant’s sex.

III. THAT THE APPELLANT IS NOT GUILTY OF THE OFFENCE UNDER


SECTION 376 OF THE HPC

32. It is humbly submitted that the appellant is not guilty of the offence u/s 376 of the HPC because,
firstly, section 375(2), HPC has not been fulfilled (A). Secondly, at the time of intercourse, the
appellant’s intentions were not mala fide (B). Thirdly, the appellant’s promise could not
materialize due to the prosecutrix’ own conduct (C).

A. THAT THE DEFINITION OF RAPE U/S 375(2) OF THE HPC HAS NOT BEEN FULFILLED

33. It is humbly submitted that the appellant and prosecutrix had been cohabiting for two years
(April 2017 to April 2019). During this period, the two often engaged in sexual intercourse

37
supra note 12 at ¶7.

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(including but not limited to anal and oral sex).38 From the aforementioned facts, it can be
clearly inferred that the two were madly in love and out of this love, the appellant promised to
marry the prosecutrix in due course of time.
34. Section 376 of the HPC penalizes the offence of rape, which has been defined u/s 375 of the
penal code as various acts of non-consensual sexual intercourse by a man upon a woman. Section
375(1) of the said section categorizes the absence of consent as one of the circumstances in
which the offence of rape is said to have been committed.

35. It is humbly submitted that any sexual activity between the appellant and the prosecutrix was
completely consensual and mutual. The Hon’ble Supreme Court has defined consent as an act of
reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on
each side.39 There is no doubt in the fact that the prosecutrix was a well-educated and mature
woman of 24 years, capable of understanding the nature of sexual intercourse and thus, making
conscious decisions.

36. From the facts of the instant case, it is evident that the prosecutrix was in love with the appellant
and had therefore cohabited with him for a period of two years. On a careful analysis of the
abovementioned facts, it is evident that there are no valid grounds to believe that the physical
relationship between the two was non-consensual in any way.
37. Section 90 of the HPC states that the consent given under fear of injury or misconception of fact
is no consent at all. In Dileep Singh v. State of Bihar,40 the Hon’ble Supreme Court interpreted
the scope of section 90 IPC in cases of rape. Herein, emphasis was laid on the knowledge or
reasonable belief of the person who obtains the tainted consent.41
38. Similarly, in the matter of Uday v. State of Karnataka,42 the Apex Court laid down two
conditions that need to be fulfilled for the application of the said section. Firstly, it must be
proved that the consent of the victim was given under a misconception of fact. Secondly, it must

38
Supra note 12 at ¶3.
39
Deepak Gulati v. State of Haryana, (2013) 7 SCC 675.
40
Deelip Singh v. State of Bihar, (2005) 1 SCC 88.
41
Id.
42
Uday v. State of Karnataka, (2003) 4 SCC 46.

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be proved that the person obtaining such consent knew that it had been obtained under
misconception of fact.43
39. It is humbly submitted that as per the factual matrix of the instant case, the application of section
90 of the HPC is not attracted because, firstly, the prosecutrix’ consent was free of any
misconception. Secondly, the appellant had no valid reason to believe that the prosecutrix’
consent was vitiated.

i. That the prosecutrix’ consent was free of any misconception

40. Considering the facts and circumstances of the present matter, it is amply clear that the
prosecutrix’ consent for sexual intercourse was not guided by any misconception of fact since it
had not been obtained on the basis of promise of marriage. While the appellant had discussed the
prospect of getting married eventually,44 nothing definite had been promised. The appellant, out
of pure love and affection for the prosecutrix, merely stated his desire of getting married to her
sometime in the future.45
41. The Supreme Court in Deepak Gulati v. State of Haryana,46 was of the opinion that
In cases where the failure to keep a promise made with respect to a future
uncertain date, due to reasons that are not very clear from the evidence
available, does not always amount to misconception of fact.

It further stated that in such cases, section 90 of the penal code cannot be called into aid so as to
pardon the act of the girl in its entirety.47
42. Considering the facts of the instant case, it can be very clearly inferred that all the acts of sexual
intercourse were voluntary and mutual. The fact that the prosecutrix chose to cohabitate with the
appellant in his apartment substantiates the fact that she was in love with him. The prosecutrix
must not be treated as a mere passive recipient of the sexual acts. It must be acknowledged that
she was also attracted to the appellant48 and desired a sexual relationship with him.

43
Id.
44
Supra note 12 at ¶3
45
Eventually, Merriam Webster’s Dictionary.
46
supra at 39.
47
Id.
48
supra note 12 at ¶3.

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43. The consent given by the prosecutrix for sexual intercourse with a person whom she deeply
loved, on a promise that he would marry her at a later time, cannot be said to be given under a
misconception of fact.49 A false promise is not a fact within the meaning of the penal code.50
44. Section 114-A of the Evidence Act, 187251 provides, that if the prosecutrix deposes that she did
not give her consent, then the court shall presume that she did not in fact, give such consent. It is
further submitted that the facts of the instant case do not warrant the application of the said
section. She cohabited with the appellant for two years, which implies consent on behalf of the
prosecutrix.

ii. That the appellant had no valid reason to believe that the prosecutrix’ consent was
vitiated

45. It is humbly submitted that there was no reasonable ground for the appellant to believe that the
prosecutrix’ consent for sexual intercourse had been obtained on the basis of his promise to
marry. He had merely expressed his desire to marry the prosecutrix someday. From the conduct
of the prosecutrix, it cannot be inferred that she had given consent on the basis of this promise.
46. When two people are madly in love, they promise to each other several times that come what
may, they will get married.52 In the Deepak Gulati case, the Supreme Court had observed that in
cases where the prosecutrix agrees to have sexual intercourse on account of her love and passion
for the accused, such a physical relationship would not tantamount to rape.
47. There is no strait jacket formula for determining whether consent to sexual intercourse was
voluntary, or given under misconception of fact.53 Hence, it can be safely stated that the two
preconditions for the application of section 90 of the HPC, as held in Uday v. State of
Karnataka,54 have not been fulfilled.

49
supra note 47.
50
Abdul Salam v. State of MP, (2006) SCC OnLine MP 676.
51
Evidence Act, 1872, §
52
supra note 40.
53
supra note 42.
54
Id.

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B. THAT THERE WAS NO MALA FIDE INTENTION ON THE APPELLANT’S PART

48. It is humbly submitted before the Hon’ble Court that there was no mala fide intention on the
appellant’s part. There is no sustainable ground whatsoever to believe that he never had the
intention to fulfill his promise of marriage with the prosecutrix. The fact that he rented an
apartment where the both of them cohabited for two years,55 substantiates the fact that he was
duly invested in the relationship. He made the promise out of sheer love and affection for the
prosecutrix and not to satisfy his lust.
49. There must be adequate evidence to show at the initial stage itself that the accused had no
intention of keeping his promise of marriage.56 He can be convicted for rape only if there is
conclusive proof that his intention was mala fide, and that he had clandestine motives.

C. THE PROSECUTRIX’ SEXUAL INVOLVEMENT WITH DR. PARULKAR DAMAGED HER


RELATIONSHIP WITH THE APPELLANT

50. It is humbly submitted that the appellant had no intention of breaching his promise of marriage.
In March 2019, however, his relationship with the prosecutrix took a drastic turn when he
discovered that she had engaged in sexual intercourse with Dr. Parulkar on the 14th of February,
2019 for the first time. From this fact it can be inferred that there had been multiple instances of
sexual intercourse between the two. Consequentially, her relationship with the appellant became
strained and they had several fights before the prosecutrix left the apartment.57
51. In the Deepak Gulati case, the Supreme Court was of the view that in cases where the accused,
on account of circumstances, which he could not have foreseen, was unable to marry the
prosecutrix, the act of sexual intercourse would not tantamount to committing rape.
52. It is respectfully submitted that the prosecutrix’ sexual involvement outside of the relationship
was an appalling revelation for the appellant. Trust is the very foundation of any relationship,
which was blatantly breached by the prosecutrix in this case. The appellant could never have
foreseen that such circumstances could arise. It is a well admitted fact that their relationship
became strained after the painful discovery made by the appellant.58

55
supra note 12 at ¶3 and ¶5.
56
supra note 39.
57
supra note 12 at ¶5.
58
supra note 12 at ¶ 5.

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53. The prosecutrix’ act was a final blow to the relationship, and therefore, to the promise made by
the appellant. As has been mentioned above, the appellant’s promise of marriage was out of
sheer love and affection for the prosecutrix. However, her sexual involvement outside of the
relationship had drastically changed the status quo. In consonance with the Apex Court’s
judgement in the Deepak Gulati case, the provisions of section 375 of the HPC cannot be
warranted in the instant case.

IV. THAT THE APPELLANT IS NOT GUILTY OF THE OFFENCE UNDER


SECTION 377 OF THE HPC

54. It is humbly submitted before the Hon’ble Court that when the appellant and the prosecutrix
were living together, they shared a healthy sexual relationship for two years. They often indulged
in sexual intercourse (including but not limited to anal and oral sex).59
55. Section 377 of the HPC penalizes acts of sexual intercourse against the order of nature.
However, the classification of such acts under the said section has been somewhat ambiguous.
Before the landmark Navtej Johar judgement, the section penalized homosexuality,60 certain
kinds of sexual acts between adults regardless of consent and any kind of sexual acts with minors
or animals.
56. However, after the judgement, the scope of the said section has been restricted considerably by
decriminalization of consensual homosexual intercourse and any kind of consensual sexual
activity between heterosexual adults. This section, however, continues to govern non-consensual
sexual activity against adults, all acts of carnal intercourse against minors and acts of bestiality.
57. It is humbly submitted that the relationship between the appellant and the prosecutrix must be
categorized as one between heterosexuals. Even though the prosecutrix was born as an intersex
person, she has the right to identify as a female as per the NALSA judgement. It is a well
admitted fact that the prosecutrix had undergone SRS at the age of 21 to align her biological sex
to her psychological sex.61 Hence it can be inferred from the facts that the prosecutrix should
have been rightly treated as a woman.

59
supra note 12 at ¶3.
60
Suresh Koushal v. Naz Foundation, (2014) 1 SCC 1.
61
supra note 12 at ¶1.

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58. It is also submitted that the biological test, which had been conducted upon the prosecutrix
revealed that she had 46XYchromosomes, based on which the Sessions Court held that the
prosecutrix was a male. Each person is born with 23 pairs of chromosomes with the last pair
determining the sex of an individual. Men have 46XY chromosomes while women have 46XX
chromosomes.62
59. However as per research by the National Centre for Advancing Translational Sciences, some
women are born with the ‘male sex chromosomes’, i.e., 46XY due to a very rare condition called
Complete Androgen Insensitivity Syndrome (CAIS). Affected people are typically raised as
females and identify as such.63
60. Hence, it is humbly submitted that the Corbett Test should not be relied upon as it is an
inconclusive proof of the prosecutrix’ sex. This essentially means that the relationship between
the appellant and the prosecutrix was a heterosexual one, which is not governed within the
purview of section 377, HPC. Any kind of non-consensual sexual activity, including penile-anal
or buccal coitus upon a woman is governed by section 375 of the HPC.
61. In Arguendo- Even if the findings of the Corbett Test are depended upon and the relationship
was treated as one between homosexuals, still the provisions of section 377, HPC are not
attracted. As has already been submitted, all kinds of sexual activity between the appellant and
the prosecutrix were consensual and mutual. Hence, the decision of the Sessions Court in the
instant matter is per incuriam and therefore, legally unsustainable.

62
--, Genetic Components of Sex and Gender, WORLD HEALTH ORGANIZATION (Jul. 23, 2019, 7:36 PM),
https://www.who.int/genomics/gender/en/index1.html.
63
--, Complete androgen insensitivity syndrome, GENETIC AND RARE DISEASES INFORMATION CENTER (Jul. 23,
2019, 7:34 PM), https://rarediseases.info.nih.gov/diseases/10597/complete-androgen-insensitivity-syndrome.

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PRAYER

Wherefore in light of the facts of the case, arguments advanced and authorities cited, it is
humbly prayed that this Hon’ble Court be pleased to adjudge, hold and declare that:

1. The prosecutrix’ gender should be determined on the basis of psychological evaluation;


2. The prosecutrix’ constitutional right to dignity was not violated due to
conducting of the biological test;
3. That the appellant is not guity of the offence u/s 376 of the HPC;
4. That the appellant is not guilty of the offence u/s 377 of the HPC.

In the alternative, pass any other relief which the court may deem fit and proper.

-/Sd
COUNSELS ON BEHALF OF THE RESPONDENTS

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