BEFORE THE HON’BLE SUPREME COURT OF INDIA.

WRIT PETITION FILED UNDER ARTICLE 32 OF CONSTITUTION OF INDIA

PETITIONER: JOSEPH SHINE

V.

RESPONDENT: UNION OF INDIA

MOST RESPECTFULLY SUBMITTED BEFORE THE HON’BLE CHIEF JUSTICE AND

OTHER JUDGES OF SUPREME COURT OF INDIA.

MEMORANDUM ON BEHALF OF PETITIONER DRAWN AND FILED BY THE

COUNSELS FOR THE PETITIONER.

SUBMITTED BY

SANGEETH SA
 TABLE OF CONTENTS

LIST OF ABBREVIATIONS……………………………………………………………………….........I

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

STATEMENT OF JURISDICTION......................................................................VII

STATEMENT OF FACTS.................................................................................VIII

ISSUES RAISED................................................................................................X

SUMMARY OF ARGUMENTS..........................................................................XI

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

PRAYER.........................................................................................................XI
 LIST OF ABBREVIATIONS

1. & AND
2. AIR ALL INDIA REPORTER
3. ART ARTICLE
4. CIVIL CC CIVIL COURT CASES
5. CONS CONSTITUTION
6. Cr.LJ CRIMINAL LAW
JOURNAL
7. CrPC CODE OF CRIMINAL
PROCEDURE
8. DEL DELHI
9. DMC DIVORCE AND
MATRIMONIAL CASES
10. ILR INDIAN LAW REPORTS
11. IPC INDIAN PENAL CODE
12. JT JUDGEMENT TODAY
13. KAR KARNATAKA
14. KER KERALA
15. KLJ KERALA LAW JOURNAL
16. KLT KERALA LAW TIMES
17. LLJ LABOUR LAW JOURNAL
18. LS LAW SUMMARY
19. ORS OTHERS
20. S SECTION
21. SC SUPREME COURT
22. SC SUPREME COURT
23. SCC SUPREME COURT
24. SCC(cr) SUPREME COURT
CASES(Criminal)
25. SCJ SUPREME COURT
JOURNAL
26. SCR SUPREME COURT
REPORTER
27. U/S UNDER SECTION
28. UOI UNION OF INDIA
29. V VERSUS
 INDEX OF AUTHORITIES

CONSTITUTION

 CONSTITUTION OF INDIA

STATUTES REFERRED

 INDIAN PENAL CODE

 CODE OF CRIMINAL PROCEDURE

BINDING PRECEDENTS

SUPREME COURT CASES

 Yusuf Abdul Aziz vs. State of Bombay, 1954 SCR 930 = AIR 1954 SC 321.

 Sowmithri Vishnu vs. Union of India and Another, (1985) Suppl.SCC 137 .

 V. Revathi vs. Union of India and Others, (1988) 2 SCC 72.

 W. Kalyani vs. State through Inspector of Police and Another, (2012) 1

SCC 358

 M. P. Sharma And Others vs Satish Chandra , District Magistrate, Delhi

1954 AIR 300, 1954 SCR 1077.

 Kharak Singh vs The State Of U. P. & Others 1963 AIR 1295, 1964
SC(1)332

 Justice K.S.Puttaswamy(Retd) ... vs Union Of India And Ors. on 24

August, 2017
 STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of India has the inherent jurisdiction to try,
entertain and dispose of the present case by virtue of Article 32 of Constitution
of India.
 STATEMENT OF FACTS

Section 497 of Indian Penal Code, 1860 states that “Whoever has
sexual intercourse with a person who is and whom he knows or has reason to
believe to be the wife of another man, without the consent or connivance of
that man, such sexual intercourse not amounting to the offence of rape, is
guilty of the offence of adultery, and shall be punished with imprisonment of
either description for a term which may extend to five years, or with fine, or
with both. In such case the wife shall not be punishable as an abettor”.

In India, adultery features in both the criminal law as well as the civil
law. The section of adultery, remarkably, punishes the man who has had
consensual sexual intercourse with a married woman, but not the married,
unmarried/divorced/widowed woman who has had consensual sexual
intercourse with a married man.The law is discriminating against citizens based
on “sex”, covered under Article 15 of the Constitution, and that the
fundamental right to equality is being violated as per Article 14. By not putting
women in an equally culpable position as men, it will be a licence given to
them to commit and abet crime.

Section 198(2) in The Code Of Criminal Procedure, 1973 states that “no person
other than the husband of the woman shall be deemed to be aggrieved by any
offence punishable under section 497 or section 498 of the said Code: Provided
that in the absence of the husband, some person who had care of the woman
on his behalf at the time when such offence was committed may, with the
leave of the Court, make a complaint on his behalf”.

As this provision, prima facie, appears to be quite archaic, petitioner has

submitted this writ petition in the nature of Public Interest Litigation,
challenging the Constitutional validity of section 497 of Indian Penal Code 1860
which defines adultery and prescribes punishment.The petitioner herein also
challenges section 198(2) CrPC.These sections are apparently discriminatory
,arbitrary,unreasonable and violate the principles of gender justice.
 ISSUES RAISED

1-(a) Whether the petition is maintainable under article 32 of Constitution of

india and (b) whether section 198(2) of CRPC constitutional?

2-Whether definition of adultery stated in section 497 of IPC contravenes

Article 14 and 15 of Constitution of India?

3-Whether Article 14 and 15 should be considered precisely while making

special provisions for women and children by the state?
 SUMMARY OF ARGUMENTS:

1-The petition is maintainable under article 32 of Constitution of india and

section 198(2) of CrPC is constitutional.

The petitioner herein has the locus standi to file the present PIL as he is a
public spirited person and is keen and active in fighting for the public in
general since years. The adverse impact of section 497 IPC and section 198(2)
CrPC upon gender justice is a great concern to be addressed as it violates the
rights of a citizen guaranteed under Article 14, 15 and 21 of the Constitution of
India. Hence the petitioner has the locus standi to file the present petition
challenging the said provisions before this Honourable Court under Article 32
of the Constitution.

2-The definition of adultery stated in section 497 of IPC is contrary to Article 14

and 15 of Constitution of India.

The definition of adultery stated in section 497 of IPC is unreasonable. Adultery

is voluntary sexual intercourse between a married person and another person
who is not their married spouse. It is to be noted that adultery is not only
between a man with a married woman but also between a married man with
an unmarried woman. Section 497 IPC discriminates the status of men and
there is no reasonable nexus to the object sought to be achieved in the
exclusion of women from being prosecuted under this section and hence
violation of article 14. As right to engage in sexual intercourse is an intrinsic
part of the right to privacy section 497 should be decriminalized and declared
to be considered as a ground for divorce only.

3- Article 14 and 15 should be considered precisely while making special

provisions for women.
Section 497 of Indian Penal Code contravenes both "equality before law" and
"equal protection of the laws “enshrined in Article 14 of Constitution of India.
Equality before law prohibits discrimination. Equal protection of the laws’
requires the State to give special treatment to persons in different situations in
order to establish equality amongst all. Therefore, the necessary corollary to
this would be that equals would be treated equally, whilst un-equals would
have to be treated unequally. In the context of offence of adultery both man
and woman are offenders as for having consensual sexual activity. Thus
exempting women from penal consequences from the offence of adultery is
contrary to Article 14 of Constitution of India. As section 497 is a special
provision for women according to legal precedents, punishing men and
exempting women from punishment is unconstitutional.
-ARDUMENTS ADVANCED- -PETITIONER-

ARGUMENTS ADVANCED:

1.1: The writ petition filed under Article 32 of Constitution of India is

maintainable.

The petitioner herein is filing the present Writ petition under

Article 32 of the Constitution of India for issuance of an order , direction, Writ
in the nature of mandamus or any other appropriate writ challenging the
Constitutional validity of section 497 of Indian Penal Code 1860 (herein after
IPC),which defines adultery and prescribes punishment. The petitioner herein
also challenges section 198(2) CrPC. These sections are apparently
discriminatory and violate the principles of gender justice.

The petitioner herein has not filed any similar writ petition either in
this Honourable Court or any other High Court. The petitioner herein has not
approached any respondent/authority for the relief sought in the present writ
petition. Further it is stated that there is neither civil, criminal nor revenue
litigation involving the petitioner herein which has or could have a legal nexus
with the issues involved in the present Public Interest Litigation.

The petitioner herein has the locus standi to file the present PIL as
he is a public spirited person and is keen and active in fighting for the public in
general since years. The adverse impact of section 497 IPC and section 198(2)
CrPC upon gender justice is a great concern to be addressed as it violates the
rights of a citizen guaranteed under Article 14,15 and 21 of the Constitution of
India. Hence the petitioner has the locus standi to file the present petition
challenging the said provisions before this Honourable Court Under Article 32
of the Constitution.

The petitioner herein prefers the present petition in the nature of PIL
and the same squarely falls within the ambit of the guidelines prescribed in the
decision of the High Court in State of Uttaranchal v.Balwant Singh Chantal and
others,and subsequent judgements wherein this Honourable Court had
-ARDUMENTS ADVANCED- -PETITIONER-

reiterated the pre requisites of a PIL.The petitioner has herein filed the PIL with
the noble aim of justice i.e. assisting the Honourable Court in ensuring gender
justice.

When dealing with the writ of Mandamus, it can be issued when a person or
authority

(a) Oversteps the limit of its powers; or

(b) Fails to comply with the condition laid down or the exercise of such
powers; or

(c) Refuse to perform his statutory duties; or

(d) Overlooks or violates the requirements of natural justice.

In K.Arunachalam and others v. The District Collector and others the provision
of the Tamilnadu acquisition of lands for harijan welfare schemes Act i.e.
Tamilnadu Act No:31 g 1978 have been struck down by the Honourable
Madras High Court by issuing a writ of Mandamus. Section 4(1) of the said Act
was challenged thus.

Thus the writ of Mandamus is an order by the superior Court commanding a

person or public authority to do or forbear to do something in the nature of
public duty. It is a judicial remedy in the form of an order from a superior court
to any government, court , corporation or any public authority .to do or to
forbear from doing some specific act.

Hence it is a writ of most remedial nature, the purpose is to remedy the

defects of justice. As this petition is a PIL, a person can be said to be aggrieved
when he is denied of his legal firths as well as his fundamental rights.

1.2: The writ petition is filed ,challenging the Constitutional validity of section
198(2) CrPC.

In consonance with the approach of section 497 IPC adultery, section

198 CrPC mandates a court not to take cognizance of adultery unless the
-ARDUMENTS ADVANCED- -PETITIONER-

aggrieved husband makes a complaint. In sub clause 2 for the purpose of

subsection (1),no person other than the husband of the women shall be
deemed to be aggrieved by any offence punishable under section 498 of the
said code. Provide that, in the absence of the husband, some person who has
taken care of the women. On his behalf, at the time when such offence was
committed may, with the leave of the court, make a complaint on his behalf.

Thus, it signifies the unequal status of the husband and the wife in the
institution of marriage in India. It declares that man is a seducer and the
married woman is a helpless and passive victim.

That the husband of the adulteress is an aggrieved party and can make a
formal complaint.

The wife of the man who had consensual sexual intercourse with another
woman, married or unmarried is not deemed to be an aggrieved person and
thereby precluded from making a formal complaint against either her husband
or the adulteress woman. A married man can seduce and establish sexual
relation with an unmarried woman, a widow or divorcee even though such a
sexual act is equally potential to wreck the marriage between him and his wife.

However one may find it difficult to continue himself about the rationale of
the disability of the wife of the adulterer to prosecute her unfaithful husband.
Probably realising that the section also does not permit the husband of the
adulteress wife to prosecute for her infidelity and recalling the ration of
Sowmithri Vishnu case, she asserted that whether or not the law permits the
husband to prosecute his disloyal wife, the wife cannot be lawfully disabled
from prosecuting her unfaithful husband. Such a statutory provision which is
premised on gender discrimination in contravention of gender equality
guaranteed in the Constitution, unconstitutional as it amounts to an obvious
discrimination.

Upholding the Constitutionality of section 497 IPC and S 198(2) CrPC,

Thakkar J, of the apex court observed, the community punishes the outsider
who breaks in to the matrimonial home and occasions the violation of sanctity
of the matrimonial tie by developing an illicit relationship with one of the
spouses subject to the rider that the erring man alone is punished and not the
women.

There is thus reverse discrimination in favour of the women rather than

against her. The law does not envisage the punishment of any of the spouses
at the instance of each other. This is a clear cut violation of the upholding
principles of the natural justice. The judicial opinion thus s 198(2) CrPC illegal.
Such judicial reasoning in ultimate analysis unfortunately endorses the
patriarchal property oriented and gender discriminatory penal law of adultery.
It conveys that a man is entitled to have exclusive possession of and access to
his wives sexuality and a woman is not eligible to have such an exclusive right
and claim over her husband. She is therefore not able to prosecute either her
promiscuous husband or the outsider women. Thus it is humbly submitted that
the Courts failed to give a deeper insight in to the gender biased law of
adultery.

1.3: Right to privacy includes sexual privacy.

The right to privacy invariably has to include the right to sexual privacy. In fact,
in Bowers v.Hardwick, justice blackmen said that .depriving individuals the
right to choose for themselves, how to conduct their their intimate
relationship poses a far greater threat to the values most deeply rooted in our
nation’s history than tolerance of non-conformity could ever do. There is no
reason to criminalize consensual sexual intercourse between two adults.
Therefore for this reason the above said provisions are liable to be struck down
as unconstitutional. On global level, there has been continuous concerns about
decriminalizing adultery .At present in UK adultery is not an offence. In most of
the countries in Europe, adultery is not treated as a criminal offence; most of
them are put to disuse. Recently in the year 2015, the Supreme Court of South
Korea has struck down Art 241 of criminal act which stipulated imprisonment
for two years or less for adultery and this court stated that it violates the basic
human rights and international obligations.
-ARDUMENTS ADVANCED- -PETITIONER-

1.4: The social status of women in India as well as globally is not the same as
that in the earlier period.

It is submitted that international conventions have advocated the abolition of

penal laws on adultery in the year 2012.The then working group of the issue of
discrimination against women in law in practice established by UN in
2010,Urged the countries to eliminate laws that classify adultery as a criminal
offence .India being the signatory of the convention of elimination of all forms
of discrimination against women (CEDAW) has an obligation to reconsider the
impugned sections in the light of the current social and legal scenario.
Moreover the international covenant on civil and political rights (ICCPR) forms
part of customary international law and is binding on national states. Art 14(1)
states that “all persons shall be equal before the court and tribunals. More
over the convention on the elimination of all forms of discrimination against
women, 1979 is another peculiar instrument proscribing discrimination. Being
a party to CEDAW, it’s Article 1 and all other provisions are binding to India, as
well.

2-Whether definition of adultery stated in section 497 of IPC contravene Article

14 and 15 of Constitution of India?

2.1: Section 497 IPC discriminates the status of men.

It is humbly submitted that the definition of adultery stated in section 497 of

IPC is unreasonable. Adultery is voluntary sexual intercourse between a
married person and another person who is not their married spouse. It is to be
noted that adultery is not only between a man with a married woman but also
between a married man with an unmarried woman.
-ARDUMENTS ADVANCED- -PETITIONER-

But section 497adultery says “Whoever has sexual intercourse with a person
who is and whom he knows or has reason to believe to be the wife of another
man, without the consent or connivance of that man, such sexual intercourse
not amounting to the offence of rape, is guilty of the offence of adultery, and
shall be punished with imprisonment of either description for a term which
may extend to five years, or with fine, or with both. In such case the wife shall
not be punishable as an abettor”.

That in section 497, the offence of adultery can only be committed by a man.
But in the absence of any provision to the contrary, the woman would be
punishable as an abettor. But the last sentence in section 497 prohibits this. It
runs- "In such case the wife shall not be punishable as an abettor. That is, only
the adulterer is punished and the adulteress is totally exempted from
punishment. Section 497 is unconstitutional as it discriminates men, and there
is no reasonable basis for not holding the woman criminally liable when she
was a willing participant in the criminal act. This offends articles 14 and 15 of
the Constitution of India.

Article 15 enunciates that “The State shall not discriminate against any citizen
on grounds of sex". But Article 15(3) which runs "Nothing in this article shall
prevent the State from making any special provision for women”. The
provision complained of is a special provision and it is made for women,
therefore it is saved by clause (3).This has been established by the Supreme
court itself in Yusuf Abdul Aziz vs. State of Bombay, 1954 SCR 930 = AIR 1954
SC 321; Sowmithri Vishnu vs. Union of India and Another, (1985) Suppl.SCC 137
and V. Revathi vs. Union of India and Others, (1988) 2 SCC 72 W. Kalyani vs.
State through Inspector of Police and Another, (2012) 1 SCC 358.

It is humbly submitted that Article15 (3) should be confined to provisions

which are beneficial to women and cannot be used to give them a licence to
commit and abet crimes.
-ARDUMENTS ADVANCED- -PETITIONER-

2.2: There is no reasonable nexus to the object sought to be achieved in the

exclusion of women from being prosecuted under this section and hence
violation of article 14.

Article 14 says that” 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”

It is humbly submitted that the accused (whether married or not) is punishable

for imprisonment for 5 years or fine or both if he has sexual intercourse with a
married woman. The object of the section is to punish for adultery, as the
same is against the prevalent societal values. But the section makes the alleged
act punishable only if the same is with the married woman. Thus, if an accused
being a married man has sexual intercourse with an unmarried woman,
although adultery, the same will be outside the purview of section 497 IPC. The
provision does not apply to a consenting sexual relationship between two
unmarried adults and it treats married men and women differently with regard
to their prosecution for adultery.

Thus, ex facie, the classification into married and unmarried doesn't have any
reasonable nexus with the object sought to achieve and is contrary to Article
14 of the Constitution of India.

2.3: Section 497 of Indian Penal Code derogates the status of women:

(a) It is humbly submitted that if there is consent or connivance of the

husband, then the said act will be outside the purview of Section 497. The
fulcrum of the offence is destroyed once the consent or the connivance of the
husband is established and the section loses its enforceability. It nullifies the
offence of adultery and turns the woman into a commodity. Viewed from the
said scenario, the provision really creates a dent on the individual independent
identity of a woman when the emphasis is laid on the connivance or the
consent of the husband. This tantamount to subordination of a woman where
-ARDUMENTS ADVANCED- -PETITIONER-

the Constitution confers equal status. This results in degradation of the status
of women being a 'property' of man, as for having consensual sexual relations
she needs consent of her husband which results in a conclusion that the man is
owner of his wife and this 'absurd' conclusion which has direct implication of
the bare wordings of the section, which goes against the principle of gender
justice and the constitutional mandate of Right to Equality.

(b) The offence of adultery being a non-cognizable one, the prosecution for the
same cannot be initiated unless there is a complaint by the husband as he is
the one who is deemed to be aggrieved and no one else. Further, in case the
husband is not there then the person who had guardianship of the woman on
his behalf, at the time when such an alleged act was committed, with the leave
of the court, may make complaint on his behalf. Thus, in case a married man
has sexual intercourse with a married woman, the husband of married woman
is deemed to be aggrieved and not the wife of married man. This also
tantamount to subordination of women and derogates the status of the
women.

Article 51A (e) in the Constitution of India 1949

Confers to every citizen of India, Fundamental Duty to renounce practices

derogatory to the dignity of women and yet the legislators has not taken any
initiatives on this matter.

2.4: The offence of adultery prescribes punishment only for

men eventhough committed by the consensual act of both man and woman:

(a) :That for the alleged act to fall within the ambit of section 497, the same
has to be consensual, otherwise it will tantamount to rape. Thus, the section
prescribes punishment for a consensual sexual activity. In such case of "alleged
act" only "man" is held as the accused and not the married woman with whom
he had consensual sexual intercourse. Even though there is intentional aid, the
wife has been statutorily exempted from any penal consequences because she
-ARDUMENTS ADVANCED- -PETITIONER-

can't be prosecuted even as an abettor according to this section. It

contravenes both "equality before law" and "equal protection of the laws
“enshrined in Article 14 of Constitution of India. Equality before law prohibits
discrimination. Equal protection of the laws’ requires the State to give special
treatment to persons in different situations in order to establish equality
amongst all. Therefore, the necessary corollary to this would be that equals
would be treated equally, whilst un-equals would have to be treated
unequally. In the context of offence of adultery both man and woman are
offenders as for having consensual sexual activity. Thus exempting women
from penal consequences from the offence of adultery is contrary to Article 14
of Constitution of India.

(b) :That as per section 34 of Indian Penal Code “When a criminal act is done
by several persons in furtherance of common intention of all, each of such
persons is liable for that act in the same manner as if it were done by him
alone”.

So to attract the application of Section 34, there should be committal of a

criminal act by two or more persons with a common intention.

That section 497 Adultery is undoubtedly a criminal offence, done by two

persons, a man and a woman with a common intention i.e. sexual gratification.
So both man and the woman is liable for the act in same manner. Thus the
absolving of woman from punishment makes this section arbitrary and hence
unconstitutional.

2.5: Section 497 adultery prescribes gender biased punishment where gender
neutrality is to be followed:

It is humbly submitted that sexual relationship of a husband with an

unmarried woman is not comprehended with in the definition of 'adultery'. If
the paramour of a married woman can be guilty of adultery then an unmarried
-ARDUMENTS ADVANCED- -PETITIONER-

girl who has sexual relations with a married man should also be guilty of
adultery.

Prima facie, on a perusal of Section 497 of the Indian Penal Code, we find that
it grants relief to the women by treating her as a victim. It is also worthy to
note that when an offence is committed by both of them, one is liable for the
criminal offence but the other is absolved. For all other sections of IPC the
criminal law proceeds on gender neutrality. But in this provision, the said
concept is absent.

2.6: Right to sexual privacy.

That the right to engage in sexual intercourse is an intrinsic part of the right to
privacy. Privacy has to invariably contain the right to bodily integrity, self-
determination and sexual autonomy. By criminalising adultery, the state is in
fact showing a paternalistic attitude by telling individuals how to lead their
lives and what behaviour to adopt. It carries moralistic undertones of imposing
what living an ideal life means for the state. Such an approach seriously
undermines the underlying values of personal liberty.

That in the celebrated privacy judgment in K.S. Puttaswamy (2017), exercising

the police power of the state in matters of private choices was repelled by the
apex court. Justice J. Chelameswar in clear terms held, “I do not think that
anybody would like to be told by the state as to what they should eat or how
they should dress or whom they should be associated with either in their
personal, social or political life.” It is apparent from this declaration that
individuals are free from the interference of the state in matters of their sexual
choices, or even in choosing their sexual partner.

A time has come when the society must realise that a woman is equal to a man
in every field. This provision, prima facie, appears to be quite archaic. This
provision attacks the independent identity of the women. It is directly
discriminating men and indirectly discriminating women.
-ARDUMENTS ADVANCED- -PETITIONER-

In a marital bond based on love and trust, it is true that the spouse will have a
necessary grievance against the adulterous partner. It does seem quite unfair
to compel an individual to remain with an unfaithful partner. It is in view of this
breach of fidelity that the civil laws in the country provide for adultery as a
ground for divorce.

PRAYER

So my prayer before this Hon’able court is to declare the wrong of adultery as

unconstitutional and should only be considered to be a civil wrong and be the
basis of divorce only.

3-Whether Article 14 and 15 should be considered precisely while making

special provisions for women and children by the state?

The Constitution of India prohibits discrimination based on sex but it equally

directs and empowers the government to undertake special measures for
women.

Art 14 of the constitution is 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

Art 15 Prohibition of discrimination on grounds of religion, race, caste, sex or

place of birth and Art15(3) Nothing in this article shall prevent the State from
-ARDUMENTS ADVANCED- -PETITIONER-

making any special provision for women and children .The ultimate aim of this
provisions is women empowerment.

The Constitution provides many protection rights for women such as

Protective discrimination in favour of women, Right to freedom of women,
Right of women against exploitation, Rights of women under directives and
political representations of women.

The Preamble to the Constitution resolved to secure all its citizens, including
equality of status and opportunity while Articles 14 to 18 and 39 provide for
Right to equality and non-discrimination among men and women. Article 14
ensures that the state shall not deny to any person equality before law. It
prohibits class legislation but permits reasonable classification.

Article 15 (1) prohibits discrimination against any citizen based on religion,

race, caste, sex or place of birth while Article 15 (3)permits ‘protective
discrimination’ in favour of women according to which state can make special
provision for women and the scope of this article is wide enough to cover the
entire range of state activity including employment.

According to Article 243- D (3) and 243-T (3), not less than one third of the
total number of seats to be filled by Directive election in every Panchayat
/Municipality shall be reserved for women (including SCs AND STs). This
opportunity of being a part of local level arbitration process has improved the
social conditions of women in village areas.

Article 42 of the Constitution provides that the state shall make provision for
securing just and humane conditions for work and maternity relief and for this
purpose the Maternity Benefit Act, 1961 was enacted.

S. 497 of the Penal Code is violation of Art. 14 of the Constitution by making an

irrational classification between men and women.

Section 497 confers upon the husband the right to prosecute the adulterer but,
it does not confer any right upon the wife to prosecute the woman with whom
-ARDUMENTS ADVANCED- -PETITIONER-

her husband has committed adultery. The law permits a husband to prosecute
his disloyal wife; the wife cannot be lawfully disabled from prosecuting her
disloyal husband. Section 198(2) of the Code of Criminal

Procedure operates as a fetter on the wife in prosecuting her adulterer

husband, the relevant provisions is unconstitutional on the ground of
obnoxious discrimination.

Section 497 does not confer any right on the wife to prosecute the husband
who has committed adultery with another woman; and, Section 497 does not
take in cases where the husband has sexual relations with an unmarried
woman, with the result that husbands have, as it were, a free license under the
law to have extramarital relationship with unmarried women; and that the
right to life includes the right to reputation and therefore if the outcome of a
trial is likely to affect the reputation of a person adversely, he or she ought to
be entitled appear and to be heard in that trial and since s. 497 does not
contain a provision that she must be impleaded as a necessary party to the
prosecution or that she would be entitled to be heard, the section is bad as
violating Article 21 of the Constitution.

As per Art 15 "The State shall not discriminate against any citizen on grounds
only of sex." But that is subject to clause (3) which runs "Nothing in this article
shall prevent the State from making any special provision for women." The
provision complained of is a special provision and it is made for women,
therefore it is saved by clause (3).

The criminal offence of adultery is committed only when a man has sexual
intercourse with another man’s wife. Only the adulterer (the man) can be
prosecuted for committing the offence, and not the adulteress (the woman).It
discriminates against men, and there is no reasonable basis for not holding the
woman criminally liable when she was a willing participant in the criminal act.
So, clause (3) should be confined to provisions which are beneficial to women
and cannot be used to give them a license to commit and abet crimes.
-PRAYER- -PETITIONER-

PRAYER

In the light of issues raised, arguments advanced and authorities cited may this
Hon’ble court be pleased to:

a. Admit the present writ petition.

b. Decriminalise section 497 of Indian Penal Code,1860.

c. Declare section 497 of Indian Penal Code as a civil wrong and be the basis of
divorce only,

or

Pass any other order as it deems fit in the interest of equity, justice and good
conscience.

For This Act of Kindness, the Petitioner faction shall be duty bound forever.

Place-

Date-

(Counsel for the Petitioner)

 BEFORE THE HON’BLE SUPREME COURT OF INDIA.

WRIT PETITION FILED UNDER ARTICLE 32 OF CONSTITUTION OF INDIA

PETITIONER: JOSEPH SHINE

V.

RESPONDENT:UNION OF INDIA

MOST RESPECTFULLY SUBMITTED BEFORE THE HON’BLE CHIEF JUSTICE AND

OTHER JUDGES OF SUPREME COURT OF INDIA.

MEMORANDUM ON BEHALF OF RESPONDENT DRAWN AND FILED BY THE

COUNSELS FOR THE RESPONDENT.

SUBMITTED BY

SANGEETH SA
 TABLE OF CONTENTS

LIST OF ABBREVIATIONS……………………………………………………………………….........I

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

STATEMENT OF JURISDICTION......................................................................VII

STATEMENT OF FACTS.................................................................................VIII

ISSUES RAISED................................................................................................X

SUMMARY OF ARGUMENTS..........................................................................XI

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

PRAYER.........................................................................................................XI
 LIST OF ABBREVIATIONS

1. & AND
2. AIR ALL INDIA REPORTER
3. ART ARTICLE
4. CIVIL CC CIVIL COURT CASES
5. CONS CONSTITUTION
6. Cr.LJ CRIMINAL LAW
JOURNAL
7. CrPC CODE OF CRIMINAL
PROCEDURE
8. DEL DELHI
9. DMC DIVORCE AND
MATRIMONIAL CASES
10. ILR INDIAN LAW REPORTS
11. IPC INDIAN PENAL CODE
12. JT JUDGEMENT TODAY
13. KAR KARNATAKA
14. KER KERALA
15. KLJ KERALA LAW JOURNAL
16. KLT KERALA LAW TIMES
17. LLJ LABOUR LAW JOURNAL
18. LS LAW SUMMARY
19. ORS OTHERS
20. S SECTION
21. SC SUPREME COURT
22. SC SUPREME COURT
23. SCC SUPREME COURT
24. SCC(cr) SUPREME COURT
CASES(Criminal)
25. SCJ SUPREME COURT
JOURNAL
26. SCR SUPREME COURT
REPORTER
27. U/S UNDER SECTION
28. UOI UNION OF INDIA
29. V VERSUS
 INDEX OF AUTHORITIES

CONSTITUTION

 CONSTITUTION OF INDIA

STATUTES REFERRED

 INDIAN PENAL CODE

 CODE OF CRIMINAL PROCEDURE

BINDING PRECEDENTS

SUPREME COURT CASES

 Yusuf Abdul Aziz vs. State of Bombay, 1954 SCR 930 = AIR 1954 SC 321.

 Sowmithri Vishnu vs. Union of India and Another, (1985) Suppl.SCC 137 .

 V. Revathi vs. Union of India and Others, (1988) 2 SCC 72.

 W. Kalyani vs. State through Inspector of Police and Another, (2012) 1

SCC 358

 M. P. Sharma And Others vs Satish Chandra , District Magistrate, Delhi

1954 AIR 300, 1954 SCR 1077.

 Kharak Singh vs The State Of U. P. & Others 1963 AIR 1295, 1964 SCR (1)
332
 Justice K.S.Puttaswamy(Retd) ... vs Union Of India And Ors. on 24
August, 2017
 STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of India has no jurisdiction to try, entertain and
dispose of the present case by virtue of Article 32 of Constitution of India.
 STATEMENT OF FACTS

Section 497 of Indian Penal Code, 1860 states that “Whoever has
sexual intercourse with a person who is and whom he knows or has reason to
believe to be the wife of another man, without the consent or connivance of
that man, such sexual intercourse not amounting to the offence of rape, is
guilty of the offence of adultery, and shall be punished with imprisonment of
either description for a term which may extend to five years, or with fine, or
with both. In such case the wife shall not be punishable as an abettor”.

In India, adultery features in both the criminal law as well as the civil
law. The section of adultery, remarkably, punishes the man who has had
consensual sexual intercourse with a married woman, but not the married,
unmarried/divorced/widowed woman who has had consensual sexual
intercourse with a married man.The law is discriminating against citizens based
on “sex”, covered under Article 15 of the Constitution, and that the
fundamental right to equality is being violated as per Article 14. By not putting
women in an equally culpable position as men, it will be a licence given to
them to commit and abet crime.

Section 198(2) in The Code Of Criminal Procedure, 1973 states that “no person
other than the husband of the woman shall be deemed to be aggrieved by any
offence punishable under section 497 or section 498 of the said Code: Provided
that in the absence of the husband, some person who had care of the woman
on his behalf at the time when such offence was committed may, with the
leave of the Court, make a complaint on his behalf”.

As this provision, prima facie, appears to be quite archaic, petitioner has

submitted this writ petition in the nature of Public Interest Litigation,
challenging the Constitutional validity of section 497 of Indian Penal Code 1860
which defines adultery and prescribes punishment.The petitioner herein also
challenges section 198(2) CrPC.These sections are apparently discriminatory
,arbitrary,unreasonable and violate the principles of gender justice.
-ARDUMENTS ADVANCED- -RESPONDENT-

ARGUMENTS ADVANCED

1: Whether the petition is maintainable under article 32 of Constitution of

India and (b)whether section 198(2) of CRPC constitutional?

1.1: Writ of Mandamus is not maintainable in this petition.

Latin word mandamus means WE COMMAND .It is a judicial remedy in the

form of an order to any government, subordinate court, corporation or public
authority to do some specific act which that body is obliged under law to do
and which is in the nature of public duty and in certain cases one of statutory
duty.

It cannot be issued to compel an authority to do something against statutory

provision. Mandamus may be a command to do an administrative action or not
to take a particular action and it is supplemented by legal rights.

A person can be aggrieved only when he or she is denied a legal right by

someone who has a legal duty to do something and abstains from doing
something. The applicant pleading for the writ of mandamus to be enforced
should be able to show that he or she has a legal right to compel the
respondent to do or refrain from doing a specific act.

The duty sought to be enforced must have two qualities. It must be a duty in
public nature and the duty must be imperative and should not be
discriminatory. The purpose of mandamus is to remedy defects of justice. It
lies in the cases where there is a specific right but no specific legal remedy for
entering that right. It is not applicable in anticipation of any inquiry except
when the petitioner is likely to be affected by an arbitral act in contravention
of a statutory duty or an illegal unconstitutional order is made.
-ARDUMENTS ADVANCED- -RESPONDENT-

Mandamus lies in the cases where there is a specific right but no specific legal
remedy to enter that right. The grand of mandamus is therefore an equitable
remedy; a matter for the discretion of the court, the exercise of which is
governed by well settled principles.

According to mandamus only the Supreme Court and the High Courts are
empowered to exercise writ jurisdiction. Mandamus means court can ask
common people, subordinate courts, authorities to do or not to do some tasks.
It does not come against President of India, Governors of the state, State
legislature, private bodies and individual persons.

In Aeltemesh Rein v. Union of India, before the Honourable Supreme Court the
question that arose for consideration was whether the court would be justified
in issuing a direction to the central government in the nature of mandamus
directing the central government to bring section 30 of Advocates Act 1961 in
to force. Here the Supreme Court held that It is not open to the court to issue
writ in the nature of mandamus directing the central government to bring a
statute or a statutory provision in to force when according to the said statute
the date on which it should be brought in to force is left to the direction of
central government.

In State of Jammu &Kashmir v. A R Zakki and others, the Supreme Court held
that ,a writ of mandamus cannot be issued to the legislature to enact a
particular legislation and the same will be applicable to the executive when it
exercise the power to make rules. So that considering the above precedents,
the counsel is humbly requesting the court to declare the writ of mandamus
filed by the petitioner is not maintainable.
-ARDUMENTS ADVANCED- -RESPONDENT-

1.2: Section 198(2) of CrPC did not violate fundamental rights guaranteed
under Article 13.

The first part of Article 14 which was adopted from Irish Constitution is a
declaration of equality of the civil rights of all persons within the territory of
India. It ensures the basic principles of republicanism. The second part which is
the corollary of the first and is based on the last clause of the first section of
the 14th amendment of the American constitution ,enjoys that equal
protection shall be secured to all persons in the enjoyment of their rights and
liabilities without discrimination and favouritism.

In the early stages of interpretation of Article 14,it came to be identified with

the doctrine of reasonable classification.

Legislation cannot be considered as class legislation or discriminatory

legislation simply because it does not deal with all the citizens as a body but is
restricted in its operation to some part of the state or tis population. What
Article 14 of Indian constitution says is that “Like should be treated alike “This
means that legislature is entitled to make a reasonable classification. In Kathi
Ranning v. State of Saurashtra with the observation it is now well established
that while article 14 forbids class legislation, it does not forbids reasonable
classification. Is Saurashtra the two criteria are (1) 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 legislation.
These two criteria’s may be explained by reference to a few decided cases.

As per section 198(2) of criminal procedure code, describing about

prosecution for offences against marriage for the purpose of section 198(1)
“No person other than the husband of the woman shall be deemed to be
aggrieved by any offence punishable under section 497 or section 498 of the
-ARDUMENTS ADVANCED- -RESPONDENT-

said code, provided who has care of that women on his behalf at the time
when such offence was committed may with the leave of the court ,make a
complaint on his behalf.

As per section 497 of IPC mandates that whoever has sexual intercourse
with a woman who is or whom he knows or reason to believe to be a wife of
another man, without the consent or connivance of that man, such sexual
intercourse not amounting to the offence of rape,is guilty of the offence of
adultery and shall be punished.

The petition seeks to make men and women equally liable for adultery. But
the fact is that .to allow sexual intercourse with the consent of the women’s
husband is an indication of treating the wife as a chattel of husband. Definitely
the matrimonial sanctity aspect is there, but the way the provision is enacted
or made runs counter to Article 14.Despite that one is treated as victim and
the other is punished. There is no rationality in it. The provision is a reflection
of the times it was drafted.

As per Article 15(3) of Indian Constitution, nothing in the Article 15 shall

prevent the state from making any special provision for women and children.
So that Article 15(3) stand as a reasonable restriction towards the equality
described under Article 14 of the Indian Constitution. In Air India v. Nergesh
Meerza, a rule that an air hostess should lose her job on the first pregnancy
was struck down. This rule is obviously discriminating on the basis of sex.
Classification based on sex alone is not permissible. It was contended that the
classification was not made merely on the basis of sex, but on other
considerations such as airhostess should be pretty. Even so it was held that the
rule was unreasonable and was struck down.

The Penal code defines adultery as engaging in sexual intercourse with

the wife of another man. In other words, it is an offence that can be
committed only by a man. The section also provides that in such a case the
-ARDUMENTS ADVANCED- -RESPONDENT-

wife shall not be punishable even as an abettor. The Constitutional question is

whether section 497 is hit by Article 15 which provides that the State shall not
discriminate any citizen on the ground only of sex. This question was decided
by Supreme Court in Yusuf Aziz v. State of Bombay points out that under
Article 15(3) the State may make special provision for women. On Account of
this clause this section is held valid. In Revathy v. Union of India, The Supreme
Court affirmed the same. So considering the precedents the court may declare
that section 198(2) of CrPC is not unconstitutional.

1.3: Right to sexual privacy cannot be absolute. It can be regulated.

Right to sexual privacy cannot be an absolute right and the state may have
some power to put reasonable restriction.

Right to sexual privacy is a common law right and not a fundamental right .It
went much beyond the common law as it is inherently attached to the basic
rights of life and liberty. Right to privacy invariably means the inviolability of
the person. The expression person includes the body as well as the inviolate
personality and the privacy really is intended to indicate the realm of inviolable
sanctuary that most of us sense in our beings.

Recognition of fundamental right to privacy is consistent with international

norms and has been recognized internationally as human right and is
protected in almost all liberal democracies.

The right to engage in sexual intercourse is an intrinsic part of the right to

privacy. Privacy has to invariably contain the right to bodily integrity, self-
determination and sexual autonomy. By criminalising adultery, the State is in
fact showing a paternalistic attitude by telling individuals how to lead their
lives and what behaviour to adopt. It carries moralistic undertones of imposing
what living an ideal life means for the State. Such an approach seriously
undermines the underlying values of personal liberty. Moreover adding many
-ARDUMENTS ADVANCED- -RESPONDENT-

of the fundamental rights cannot be enjoyed to the fullest in the absence of

right to privacy.

1.4: Status of women in India.

The Indian Constitution enshrines women’s right to equality including freedom

of voice, movement and rights over their own bodies. India’s designation hurts
national pride because it is a country where millions of smartly dressed women
go to work in high rise offices every day, where laws have changed to protect
women and men have sprilled in to the streets to protest against grotesque
rape of toddlers, the gang rape of eight year olds and of young women activists
protesting at the trafficking of women. India is in the denial of the fact that a
majority of its women do not feel safe alone on the streets, at work, in markets
or at home even though they learned how to cope with this existential anxiety.

Women are more vulnerable on Indian roads; the difference would be very
obvious when it compares with outside India. Most women can walk in most
streets at late in the night in most developed countries without any fear. The
study on child abuse India 2007 carried out by the ministry of women and child
development in India have probably been sexually and many have never shares
this fact of this abuse with anyone. It is estimated that 150 million girls and 73
million women have been subjected to forced sexual intercourse or other
forms of sexual violence. Considering the current situation of India with
respect to women, they are vulnerable groups and Article 15(3) of Indian
Constitution has an important role in India.

2-Whether definition of adultery stated in section 497 of IPC contravene

Article 14 and 15 of Constitution of India?

2.1: Section 497 IPC neither discriminates the status of men nor it
discriminates the status of women.
-ARDUMENTS ADVANCED- -RESPONDENT-

It is humbly submitted that section 497 IPC does not arm the two spouses to
hit each other with the weapon of criminal law. That is not why the husband
can prosecute the wife and send her to jail nor can the wife prosecute the
husband and send him to jail. There is no discrimination based on sex.

While the outsider who violates the sanctity of the matrimonial home is
punished, a rider has been added that if the outsider is a woman she is not
punished. There is thus reverse discrimination in 'favour' of the woman rather
than 'against' her. The law does not envisage the punishment of any of the
spouses at the instance of each other. Thus there is no discrimination against
the woman in so far as she is not permitted to prosecute her husband. A
husband is not permitted because the wife is not treated an offender in the
eye of law. The wife is not permitted as Section 198( l) read with section 198(2)
does not permit her to do so.

That in the ultimate analysis, the law has meted out even handed justice to
both of them in the matter of prosecuting each other or securing the
incarceration of each other. Thus no discrimination has been practised in
circumscribing the scope of Section 198(2) and fashioning it so that the right to
prosecute the adulterer is restricted to the husband of the adulteress but has
not been extended to the wife of the adulterer.

That the provision in question is therefore not vulnerable to the charge of

hostile discrimination against a woman and cannot be successfully assailed
from that platform. Though it is true that the erring spouses have no remedy
against each other within the confines of section 497 of the Penal Code, that is
to say, they cannot prosecute each other for adultery, each one has a remedy
against the other under the civil law, for divorce on the ground of
adultery.
-ARDUMENTS ADVANCED- -RESPONDENT-

2.2: There is reasonable nexus to the object sought to be achieved in the

entire exclusion of women from being prosecuted under this section and
hence not violation of Article 14 of Constitution of India.

(a) It is humbly submitted that there is reasonable nexus to the object sought
to be achieved in the entire exclusion of women from being prosecuted under
this section.

That section 497 does not envisage the prosecution of the wife by the
husband for 'adultery'. The offence of adultery as defined in that section can
only be committed by a man, not by a woman. Indeed, this section provides
expressly that the wife shall not be punishable even as an abettor. No
grievance can then be made that the section does not allow the wife to
prosecute the husband for adultery. The contemplation of the law, evidently, is
that the wife, who is involved in an illicit relationship with another man, is a
victim and not the author of the crime. The offence of adultery, as defined in
S.497 is considered by the Legislature as an offence against the sanctity of
the matrimonial home, an act which is committed by a man, as it generally is.
Therefore, those men who defile that sanctity are brought within the net of
the law.

(b) That the 'Adulterer' under the civil law has a wider connotation than under
the Penal Code. If Section 497 will be obliterated from the statute book, then
the adulterous relations will have a more free play than now. For then, it will
be impossible to convict anyone of adultery at all. It is better, from the point of
view of the interests of the society, that at least a limited class of adulterous
relationship is punishable by law. Stability of marriages is not an ideal to be
scorned.
-ARDUMENTS ADVANCED- -RESPONDENT-

2.3: There is intelligible differentia in distinguishing man and a married

women under this section and hence not violation of Article 14 of the
Constitution of India:

(a)That Article 14 says "The State shall not discriminate against any citizen on
grounds of sex." But what overlooks is subject to 15 (3) which runs "Nothing in
this article shall prevent the State from making any special provision for
women " The provision complained of is a special provision and it is made for
women, therefore it is saved by clause (3).So Article15 (3) is a provision which
is beneficial to women and is not a licence to commit and abet crimes.

(b)That the offence of adultery, by its very definition, can be committed by a

man and not by a woman : "Whoever has sexual intercourse with a person
who is and whom he knows or has reason to believe to be the wife of another
man is guilty of the offence of adultery.". This is a provision which is not to be
struck down because, either in their definition or in their prescription of
punishment, they do not go far enough. For example, an argument could be
advanced as to why the offence of robbery should be punishable with
imprisonment for ten years under section 392 of the penal Code, but the
offence of adultery be punishable only with a sentence of five years . Breaking
a matrimonial home is not less serious a crime than breaking open a house'. So
by this section, no provision of the Constitution is infringed. So by defining the
offence of adultery so as to restrict the class of offenders as men, no
constitutional provisions are being infringed. It is commonly accepted that it is
the man who is the seducer and not the woman.

3-Whether Article 14 and 15 should be considered precisely while making

special provisions for women and children by the state?

In the case of Yusuf Abdul Aziz v. State of Bombay, the court decided that
section 497 did not violate the right to equality enshrined in article 14 and 15
of Constitution of India. While Article 14 guarantees individuals equality before
the law. Article 15(3) allows the State to detract from such equal treatment
when it comes to making special provisions for women and children.
-ARDUMENTS ADVANCED- -RESPONDENT-

The next Constitutional challenge to section 497 came in 1985 ,in the case of
Sowmithri Vishnu v. Union Of India, Chief justice Y V Chandrachud, who wrote
“We cannot accept that in defining the offence of adultery so as to restrict the
class of offenders to men, any constitutional provision is infringed. It is
commonly accepted that it’s the man who is the seducer and not the woman”

The court held that as per Article 15(3) of the constitution, which reads that
nothing in Article 15 shall prevent the State from making special provisions for
women.

It was also propounded by this court that in cases of adultery , the women is
merely the victim of the crime and not the author. Along the same lines ,it also
stated that women could not be punished as they are vulnerable, and this
vulnerability is owned due to the deprivation of love and affection they faced
from their husbands, who has a social sanction to be adulterer which in turn
made the wives vulnerable and easy to target to be seduced.
-PRAYER- -RESPONDENT-

PRAYER

In the light of issues raised, arguments advanced and authorities cited may this
Hon’ble court be pleased to:

a. Reject the present writ petition.

b. Declare section 497 of Indian Penal Code as constitutional

and

Pass any other order as it deems fit in the interest of equity, justice and good
conscience.

For This Act of Kindness, the respondent faction shall be duty bound forever.

Place-

Date-

(Counsel for the Respondent)