IN THE HON’BLE SUPREME COURT OF INDIA

IN THE MATTERS OF

Mrs. Ratore ………...………………………………….PETITIONER

V.

Mr. Ratore …………………………………………...RESPONDENT 1

Mrs. Srikar ...……………………………………….. RESPONDENT 2

Mr. Srikar …………………………………………... RESPONDENT 3

BEFORE SUBMISSION TO HON’BLE CHIEF JUSTICE AND HIS COMPANION

JUDGES OF
THE HON’BLE SUPREME COURT OF INDIA

MEMORANDUM ON BEHALF OF PETITIONER

 TABLE OF CONTENTS

————————————————————————————————

[1]. LIST OF ABBREVIATIONS

[2]. INDEX OF AUTHORITIES

[3]. STATEMENT OF JURISDICTION

[4]. STATEMENT OF FACTS

[5]. STATEMENT OF ISSUES

[6]. SUMMARY OF ARGUMENTS

[7]. ARGUMENTS ADVANCED

[8]. PRAYER

2
 LIST OF ABBREVIATIONS
————————————————————————————————
ABBREVIATION EXPANSION

AIR All India Reporter

Anr Another

Art. Article

¶ Paragraph

S Section

Hon’ble Honourable

HC High Court

SC Supreme Court

SCC Supreme Court Cases

PIL Public Interest Litigation

IPC Indian Penal Code

CrPC Code of Criminal Procedure

Edn Edition

Ors Others

SUPP Supplementary

U.O.I Union of India

SLP Special Leave Petition

V. versus

Vol. Volume

HMA Hindu Marriage Act.

3
 INDEX OF AUTHORITIES
————————————————————————————————

CONSTITUTION OF INDIA

1. LIST OF STATUTES

1. THE INDIAN PENAL CODE, 1860

2. THE CODE OF CRIMINAL PROCEDURE, 1973
3. THE HINDU MARRIAGE ACT, 1955
4. THE SPECIAL MARRIAGE ACT, 1954
5. THE INDIAN EVIDENCE ACT,1872

II. LIST OF CASES REFERRED

S.No CASES CITATION

1. Kapildeo Singh v. King Emperor (1950) 52 BOMLR 512

2. Pritam Singh v. The State 1950 AIR 169

3. Dhakeswari Cotton Mills Ltd. v. Commissioner of 1955 AIR 65

income Tax

4. Bihar Legal Support Society v. Chief Justice of India 1987 AIR 38

5. Joseph Shine v. Union of India 2018 SC 1676

6. Havinder Kaur v. Harmande Singh 1984 RLR 187

7. Saroj Rani v. Sudarshan Kuma 1984 SCC (4) 90

8. V. Revathi v. Union of India & Ors 1988 SCC (2) 72

9. Ammini E.J. v. Union of India AIR 1995 Ker 252

10. Dastane v. Dastane 1975 SCC (2) 326

11. Sari v. Kalyan 85 CWN 73

LIST OF BOOKS REFERRED

————————————————————————————————

4
S.No BOOK TITLE

1. Dr. J S Pandey, Constitutional Law of India, 54th Edition

2. P.S Achuthan Pillai, Criminal Law

3. Universal's The Constitution of India (Bare ACT)

4. S.N Mishra, The code of Criminal Procedure

5. KD Gaur, Textbook on Indian Penal Code

6. Family Law by Dr. Paras Diwan

7. Mookerjee, Marriage Separation and divorce, Edn 4th 2008

8. Gurbax Singh, The Principle of Hindu Law, Edn 2009

9. S.A Desai, Mulla; Principle of Hindu Law, Vol. 2 Edn.28th 2007

10. Halsbury‟s Law of India, Family Law II, Vol. 28, 2007

LIST OF JOURNALS REFERRED

1. All India Reporter

2. Supreme Court Cases

3. Indian Law Reporter

4. Supreme Court Cases

LIST OF DATABASES REFERRED

1. www.judis.nic.in

2. www.lexisnexis.com

3. www.manupatrafast.com

4. www.scconline.com

5. www.lawotopus.com

6. www.indiankanoon.org

7. www.westlaw.com

8. www.Journal.indianlegalsolution.com

9. www.legalserviceindia.com

10. www.blog.ipleaders.in

5
 STATEMENT OF JURISDICTION

The Petitioners have approached the Hon'ble Supreme Court of India under Article 136 of the
Constitution of India. The Respondents reserve the right to contest the jurisdiction of this
Hon'ble Court. The article 136 of Constitution of India reads as hereunder:

6
136. SPECIAL LEAVE TO APPEAL BY THE SUPREME COURT.

(l) Notwithstanding Anything In This Chapter, The Supreme Court May. In Its Discretion,
Grant Special Leave To Appeal From Any Judgment, Decree, Determination, Sentence Or
Order In Any Cause Or Matter Passed Or Made By Any Court Or Tribunal In The Territory
of India

2) Nothing in Clause (1) Shall Apply To Any Judgment. Determination, Sentence Or Order
Passed Or Made By Any Court Or Tribunal Constituted By Or Under Any Law Relating To
The Armed Forces,"

STATEMENT OF FACTS

Mr. Srikar and Mrs. Srikar were married in 2016 and were residents of Mangalore in
Karnataka State as he was working there in a shipping and fishing company.

7
After 4 years of their happy marital life, Mrs. Srikar became aware that she cannot give birth
to a healthy child. She came to know about this fact by reading a medical report kept secretly
by her husband. As per that report he suffered from some serious congenital medical problem
that may pass on to their child. Although she was interested, her husband is not interested
even to adopt a child.

When they came to her in-laws house, they had quite a big fight in this regard that he never
told her about his health problem either prior to her marriage or thereafter but kept the
information secretly. She remained in her in-laws house under their care as her husband went
for an employment training programme to Cochin for two months.

After some time Mr. Srikar learnt that his wife, desirous of having a healthy child, developed
an extra marital relationship with his office colleague, Mr. Ratore, but did not object to the
same.

Mr. Ratore confessed to his wife that he had an illicit relationship with Mrs. Srikar. Mrs.
Ratore filed a complaint against her husband as ‘main accused,’ Mrs. Srikar as ‘second
accused’ and Mr. Srikar as ‘an abettor’ as he, through his silence and acquiescence
facilitated, rather, to put it bluntly, encouraged Mrs. Srikar and her husband to indulge in
‘adultery’ thereby ruining her marital life. She pleaded that she too shall be recognized as
‘aggrieved person’ as her matrimonial life was disturbed with these developments.

Meanwhile, an NGO filed a Public Interest Limitation in the Supreme Court with a plea that
S. 497 of Indian Penal Code, 1860 shall be struck down as it violates Articles 14, 15 and 21
of Indian Constitution on the ground that the relevant section of Indian Penal Code, 1860
gives ‘immunity only to adulteress but not to men’ when both are equally guilty. As a matter
of principle of ‘public policy’, gender neutrality shall be observed in criminal law.

Mrs. Ratore also implored herself challenging the constitutional validity of sec. 497 in the
Supreme Court as it violates different Articles of Indian Constitution. She also submits that
such ‘total immunity cannot be given to Mrs. Srikar, the adulteress.

She submits that S. 198 (2) of Code of Criminal Procedure, 1973 is also unconstitutional for
it ‘discriminates on the basis of sex’ which is prohibited under Article 15 (1) of Indian
Constitution.

Mrs. Ratore also filed a petition in the Family Court for ‘divorce’ from her husband under
The Hindu Marriage Act, 1955.

Mr. Srikar also applied for divorce from his wife under The Hindu Marriage Act, 1955. Mrs.
Srikar objected that ‘it is strange that he, instead of her, filed for divorce when ‘in reality non
disclosure of his serious health problem has brought forth this state of affairs’.

8
In a new twist to the legal saga of both families, Mr. Srikar and Mr. Ratore moved a joint
application for compounding of the offence under the provisions of The Code of Criminal
Procedure, 1973.

Meanwhile, Mr. Ratore's application ‘for stay of criminal proceedings as an abuse of

jurisdiction was rejected’ by all lower Courts.

The High Court quashed the criminal proceedings against all the accused persons ‘declaring
that Sec. 497 does not violate any of the provisions of the Indian Constitution.
The Supreme Court, after hearing preliminary arguments, admitted and clubbed all the SLPs
for final disposal.

STATEMENT OF ISSUES

1. WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE BEFORE

THE HON'BLE SUPREME COURT OF INDIA?

9
2. WHETHER THE DECRIMINALIZATION OF SEC. 497 OF I.P.C. DEGRADES
THE SANCTITY OF MARRIAGE?

3. WHETHER THE DECRIMINALIZATION OF SEC. 497 OF I.P.C. DENIES

BENEFITS OF THE PETITIONER?

SUMMARY OF ARGUMENTS

1. WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE BEFORE

THE HON'BLE SUPREME COURT OF INDIA?

It is most humbly submitted before this Hon'ble Supreme Court of India that this special
leave petition is maintainable in this Court under Article 136 of the Constitution of India
against or in

a) any judgment, decree, determination, sentence or order,

10
 b) in any case of matter,
c) passed or made by any Court or tribunal in the territory of India.
d) in special and exceptional circumstances
e) where there is grave injustice.

2. WHETHER THE DECRIMINALIZATION OF SEC. 497 OF I.P.C. DEGRADES

THE SANCTITY OF MARRIAGE?

It is humbly submitted before this honorable court that the object of Sec. 497, I.P.C. is to
protect the sanctity of marriage. The aim of the Sec. is to deter crime which would lead to
lesser divorce rates and infidelity cases ultimately laying the foundation of a happy marriage.
It protects the marriage from intrusion by an outsider owing to the fact that the law penalizes
the third party only keeping both the parties to marriage in safe circuit. Also, the law can’t be
evoked by the state itself but being a non-cognizable offence, action would be taken to this
effect only after the complaint by the person so entitled under the Sec. 198 (2), Cr.P.C. is
made. The intention behind criminalizing adultery is to punish the adulterer, to deter him
from committing such a crime in future. Further the adverse fallout of decriminalizing
adultery on society cannot be ignored especially in a society like India where the institution
of marriage is regarded as a sacramental union. The provisions of adultery law are to permit
husband and wife to make up their relation rather than to break it down.

3. WHETHER THE DECRIMINALIZATION OF SEC. 497 OF I.P.C. DENIES

BENEFITS OF THE PETITIONER?

It humbly submitted before this Hon’ble court that object of Section 13(1) of Hindu Marriage
Act 1955, provides that any of the parties to marriage may demand divorce on the ground of
adultery of others. The decriminalization of adultery didn't alter this course of remedy
available to non-adulterous husband or wife and the maintenance given by husband to wife or
wife to husband under the said section 24 & 25 of Hindu Marriage Act 1955, section 18 of
Hindu Maintenance Act 1955 are also unaffected due to decriminalization of adultery. The
aggrieved party’s benefits cannot be denied by the Respondent parties by using the ground
that adultery is no more an offence (Decriminalization of Adultery).

ARGUMENTS ADVANCED

ISSUE 1: WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE

BEFORE THE HON'BLE SUPREME COURT OF INDIA?

It is most humbly submitted before this Hon'ble Supreme Court of India that this special
leave petition is maintainable in this Court. Article 136 of the Constitution of India reads
follow:

136. Special leave to appeal by the Supreme Court

11
(1) Notwithstanding anything in this chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India.
The power of the Court to hear appeals in this article is much wider and general. It vests in
the SC plenary jurisdiction in the matter of entertaining and hearing appeals by granting
special leave against:

(i) any judgment, decree, determination or order,

(ii) in any cause or matter,

(iii) Passed or made by any court or tribunal.

The Petitioner in the present case has filed the SLP under article 136 as the High Court has
acquitted the accused (respondent) for the offense of rape and hence is maintainable.Since its
establishment, the Supreme Court has defined the scope of its jurisdiction whenever
opportunity arose. It has laid down the limits within which it would exercise its powers under
this Article. Though the are unlimited, the Court has always tried to exercise the same within
the ambit of certain principles. It has by and large followed the practice of the Privy Council
and the Federal Court in this regard.

The principles for granting special leave to appeal were very succinctly laid down by the
Federal Court in Kapildeo Singh v. King Emperor1. The Federal Court discussed the
various decisions of the Privy Council and stated:
"Though this Court is no longer bound by the principles which have been laid down by it
defining the limits within which interference with the course of criminal justice dispensed in
the subordinate Courts is warranted and to remove all misapprehensions on the subject, it
would be useful to refer to some of the cases in which those principles have been enunciated
and explained"

The Court inter alia laid down the following propositions of law:

1. Leave to appeal in criminal cases could only be given where some clear departure
from the requirements of justice is alleged to have taken place.

2. The criminal proceedings would not be reviewed unless it be shown that by a

disregard of the forms of legal process or by some violation of the principles of
natural justice or otherwise substantial and grave injustice has been done.

3. The exercise of prerogative takes place only where it is shown that injustice of a
serious and substantial character has occurred. A mere mistake on the part of the

1 Kapildeo Singh v. King Emperor (1950) 52 BOMLR 512

12
 courts below, as for example, in the admission of improper evidence, will not suffice
if it has not led to injustice of a grave character. Interference is not advised even if a
different view of evidence is possible.

4. In a criminal appeal brought by special leave, the Court is not concerned with
formal rules, but only with the question whether there has been a miscarriage of
justice.

5. To interfere with a criminal sentence there must be something so irregular or so

outrageous as to shock the very basis of justice and misdirection as such, even
irregularity as such, will not that suffice and that there must be something which in
the particular case deprives the accused of the substance of fair trial and the protection
of the law.

In Pritam Singh v. The State2, the Supreme Court laid down the broad principles within
which it would exercise its jurisdiction in granting special leave under this Article. The Court
observed:
"On a careful examination of Article 136 along with the preceding article, it seems clear that
the wide discretionary power with which this Court is invested under it is to be exercised
sparingly and in exceptional cases only, and as far as possible a more or less uniform
standard should be adopted in granting special leave in the wide range of matters which can
come up before it under this article. By virtue of this article, we can grant special leave in
civil cases, in criminal cases, in income tax cases, in cases which come up before different
kinds of tribunals and in a variety of other cases. The only uniform standard which in our
opinion can be laid down in the circumstances is that the Court should grant special leave to
appeal only in those cases where special circumstances are shown to exist.

The Privy Council has tried to lay down from time to time certain principles for granting
special leave to criminal cases, which were reviewed by the Federal Court in Kapildeo v. The
King, (supra). It is sufficient for our purpose to say that though we are not bound to follow
them too rigidly since the reasons, constitutional and administrative which sometimes
weighed with the Privy Council, need not weigh with us, yet some of those principles are
useful as furnishing in many cases a sound basis for invoking the discretion of this Court in
granting special leave. Generally speaking, this Court will not grant special leave, unless it is
shown that exceptional and special circumstances exist, that substantial and grave injustice
has been done and that the case in question presents features of sufficient gravity to warrant a
review of the decision appealed against."

The overriding nature of the power exercised by the Supreme Court under Article 136 and
limitations implicit in its exercise were discussed in Dhakeswari Cotton Mills Ltd. v.
Commissioner of income Tax3. The Court observed:

2 Pritam Singh v. The State 1950 AIR 169

3 Dhakeswari Cotton Mills Ltd. v. Commissioner of income Tax 1955 AIR 65

13
"It is not possible to define with any precision the limitations on the exercise of the
discretionary jurisdiction vested in this Court by the constitutional provision made in Article
136. The limitations, whatever they be, are implicit in the nature and character of the power
itself. It being an exceptional and overriding power, naturally it has to be exercised sparingly
and with caution and in special and extraordinary situations.

Beyond that it is not possible to fetter the exercise of this power by any set formula or rule.
All than can be said is that the Constitution having trusted the wisdom and good sense of the
Judges of this Court in this matter, that itself is a sufficient safeguard and guarantee that the
power will only be used to advance the cause of justice and that its exercise will be governed
by well-established principles which govern the exercise of overriding constitutional powers.

It is, however, plain that when the Court reaches the conclusion that a person has been dealt
with arbitrarily or that a Court or tribunal within the territory of India has not given a fair deal
to a litigant, then no technical hurdles of any kind like the finality of finding of facts or
otherwise can stand in the way of the exercise of this power because the whole intent and
purpose of this Article is that it is the duty of this Court to see that injustice is not perpetrated
or perpetuated by decisions of Courts and tribunals because certain laws have made the
decisions of these Courts or tribunals final and conclusive."

The purpose and scope of Article 136 was discussed by a Bench of five Judges in Bihar
Legal Support Society v. Chief Justice of India4, where the Court observed:
It may, however, be pointed out that this Court was never intended to be a regular court of
appeal against orders made by the High Court or the sessions court or the magistrates. It was
created as an Apex Court for the purpose of laying down the law for the entire country and
extraordinary jurisdiction for granting special leave was conferred upon it under Article 136
of the Constitution so that it could interfere whenever it found that law was not correctly
enunciated by the lower courts or tribunals and it was necessary to pronounce the correct law
on the subject. This extraordinary jurisdiction could also be availed by the rt for the purpose
of correcting grave miscarriage of justice, but such cases would be exceptional by their very
nature. It is not every Case where the Apex Court finds that some injustice has been done that
it would grant special leave and interfere. That would be converting the Apex Court into a
regular court of appeal and moreover, by so doing Apex Court would soon be reduced to a
position where it will find itself unable to remedy any injustice at all on account of the
tremendous backlog of cases which is bound to accumulate."

As already observed, the Court exercises jurisdiction under Article 136 in a variety of cases.
The general principles discussed above apply in all cases, but it may be useful to highlight the
approach of the Supreme Court with reference to particular illustrative subject matters.

4 Bihar Legal Support Society v. Chief Justice of India 1987 AIR 38

14
ISSUE 2:WHETHER THE DECRIMINALIZATION OF SEC. 497 OF I.P.C.
DEGRADES THE SANCTITY OF MARRIAGE?

It is humbly submitted before this hon’ble court that the said provision protects the sanctity of
marriage. Decriminalizing adultery will pave the way for rise in divorce rates and cases of
marital infidelity, the decriminalization of adultery will critically endangered the institution
of marriage.

2.1 SECTION 497 I.P.C. ACTS AS AN EFFECTIVE DETERRENCE

It is submitted that laws are made to deter crime and not only to punish it. Criminal law
everywhere in the world serves as a guardian of the moral principles of society, protecting a
society’s historical roots while leading it towards a progressive social order. The Deterrence
theory, posits that legal sanctions deter citizens from engaging in criminal activity. This
theory, grounded in the rational actor approach, is based on the notion that people choose
whether or not to commit a crime by weighing the potential benefits of getting away with it
against the potential consequences of getting caught.

Indian criminal law explicitly criminalizes acts that deceive a person. However, it is
surprising that the criminalization of an act that breaches the sanctity of a pure social
institution such as marriage, by way of deceit and lies, is facing challenges in the present
case. Sec. 497 deals with the offence committed by an outsider to the matrimonial unit who
invades the peace and privacy of the matrimonial unit and poisons the relationship between
the two partners constituting the matrimonial unit. The community punishes the 'outsider'
who breaks into the matrimonial home and occasions the violation of sanctity of the
matrimonial tie by developing an illicit to national life or the reasoning is so plainly
erroneous in the light of later thought that it is wiser to be ultimately right rather to be
consistently wrong.``relationship with one of the spouses subject to the rider that the erring
'man' alone can be punished and not the erring woman.The intention behind criminalizing
adultery is to punish the adulterer; to deter him from committing such a crime in future and to
set an example that others also, who will commit the crime will be punished likewise. If it is
turned merely into a civil offence, adultery will only be a ground to seek divorce and will
provide a free license to prospective offenders to breach in the sanctity of marriage.As far as
its effect is concerned, Adultery is the biggest reason for divorce around the world. It is
important to note here that the National Crime Records Bureau doesn’t even maintain a
database as instances of it are negligible. Consequently, In India, the divorce rate is less than
1 percent. Out of 1000 marriages, only 13 result in divorce. If we were to bring down a single
brick, the whole house would collapse. A welfare-oriented and inclusive country like India,
while demanding that a marriage be registered in order to acknowledge and protect the rights
of the parties involved, cannot do away with a crime which undermines the same legally
recognized institution. The law of Adultery works as a shield to deter crime and not as a
sword to punish offenders, even in punishing offence The law clearly takes cognizance to
preserve marriage and parties to it and punishes the outsider.

15
2.2 DECRIMINALIZING ADULTERY WILL DESTROY THE INSTITUTION OF
MARRIAGE
It is further submitted that the judgment of the court in Joseph Shine v. Union of India5,
decriminalizing adultery is bound to have a far-reaching impact upon marriages in India, the
adverse fallout cannot be ignored.

In India, the Institution of marriage is regarded as a sacramental union. It is the basis of

society. It is a contract but it is also a sacred covenant. The main aim of the institution of
marriage is to protect the society from foulness and in-chastity. Marriage and the family are
social institutions of vital importance. Entering into and sustaining a marriage is a matter of
intense private significance to the parties to that marriage for they make a promise to one
another to establish and maintain an intimate relationship for the rest of their lives which they
acknowledge obliges them to support one another, to live together and to be faithful to one
another. Entering into marriage therefore is to enter into a relationship that has public
significance as well.In the light of such importance being attributed to marriage,
decriminalizing adultery will pave way for rise in divorce rates and cases of marital infidelity,
the decriminalization of adultery will critically endangered the institution of marriage The
examples of the disastrous effect of decriminalizing adultery can be seen around the world.
According to a study published by the National Institutes of Health,Adultery is one of the
most cited reasons for divorce. According to the American Psychological Association
(A.P.A.), infidelity in the United States accounted for 20-40 percent of divorces. Divorce is
also a common phenomenon in Europe. The divorce-marriage ratio in the US and UK is very
high at “Reasons for divorce and recollections of premarital intervention: implications for
improving relationship education” (Deptt. of Psychology, University of Denver, PMID:
24818068) children were born out of wedlock in France than to married parents for the first
time in 2006. A study which reviewed over 130 studies measuring how marital status affects
personal well- being, it shows that married men and women are generally happier and less
stressed than the unmarried.42 Moreover, a 2015 study,43 updated and confirmed the
findings in a 2002 study in Clinical Child and Family Psychology Review,44 discuss a
variety of health consequences for children of divorced parents. Studies have claimed that
people who have been in divorced families have higher rates of alcoholism and other
substance abuse compared to those who have never been divorced. Researchers have also
shown that children of divorced or separated parents: Have higher rates of clinical
depression: Family disruption and low socioeconomic status in early childhood increase the
long-term risk for major depression,45 Seek formal psychiatric care at higher rates, In the
case of men, are more likely to commit suicide and have lower life expectancies.The
institution of marriage has so much deteriorated that more It is thus clear adultery not only
run the risk of fostering extra-marital affairs, the emergence of divorce as the way out will
catalyze the break-up of marriages, leaving little children in the lurch.
THE PROVISION IS TO PROMOTE GOODWILL BETWEEN HUSBAND AND WIFE
AND PERMIT THEM TO MAKE UP RATHER THAN TO DRAG EACH OTHER TO
THE COURT According to the Satapatha Brahmana, “the wife is verily the half of the

5 Joseph Shine v. Union of India 2018 SC 1676

16
husband”. Man is only half, not complete until he marries. The Taittiriya Samhita is to the
same effect, “half is the husband of the wife”. Manu further said, “Once a man and a woman
are united in marriage, they must see that there are no differences between them, and that
they remain faithful to each other. From the notion of unity of personality of husband and the
wife, mutual fidelity between husband and wife is the highest dharma. The importance of
marriage is evident from the pronouncement of the High Court of madras which states that
marriage is the last of the ten sacraments enjoyed by the Hindu religion purifying the body
from inherited taints.The same philosophy has been incorporated under Sec. 9 of the Hindu
Marriage Act, 1955 which provides for the restitution of conjugal rights.

In Smt. Havinder Kaur v. Harmande Singh6, the court did not accept the earlier view and
rightly observed that:
“The object of restitution decree was to bring about cohabitation between the estranged
parties so that they could live together in the matrimonial home in amity. The remedy of
restitution aimed at cohabitation and consortium, the restitution decree does not enforce
sexual intercourse. It was a fallacy to hold that the restitution of conjugal rights constituted
the starkest form of governmental invasion of mutual privacy.” The same view was reiterated
by the SC in Saroj Rani v. Sudarshan Kumar7.

In V. Revathi v. Union of India & Ors8, The court has rightly observed:
“The philosophy underlying the scheme of these provisions appears to be that as between the
husband and the wife social good will be promoted by permitting them to 'make up' or 'break
up' the matrimonial tie rather than to drag each other to the criminal court. can either condone
the offence in a spirit of 'forgive and forget' and live together or separate by approaching a
matrimonial court and snapping the matrimonial tie by securing divorce. They are not
enabled to send each other to jail. Perhaps it is as well that the children (if any) are saved
from the trauma of one of their parents being jailed at the instance of the other parent.”

The offence of adultery, as defined in S. 497 is considered by the Legislature as an offence

against the sanctity of the matrimonial home. Therefore, those men who defile that sanctity
are brought within the net of the law.

ISSUE 3:WHETHER THE DECRIMINALIZATION OF SEC. 497 OF I.P.C. DENIES

BENEFITS OF THE PETITIONER?

It humbly submitted before this Hon’ble court that object of Section 13(1) of Hindu Marriage
Act 1955, provides that any of the parties to marriage may demand divorce on the ground of
adultery of others. The decriminalization of adultery didn't alter this course of remedy
available to non adulterous husband or wife.And the maintenance given by husband to wife
or wife to husband under the said section 24 & 25 of Hindu Marriage Act 1955, section 18 of
Hindu Maintenance Act 1955 are also unaffected due to decriminalization of adultery.

6 Havinder Kaur v. Harmande Singh 1984 RLR 187

7 Saroj Rani v. Sudarshan Kumar 1984 SCC (4) 90
8 V. Revathi v. Union of India & Ors 1988 SCC (2) 72

17
While striking down Section 497 of the Indian Penal Code, the court however made it clear
that adultery can be a ground for divorce. Section 13(1) of Hindu Marriage Act 1955,
provides that any of the parties to marriage may demand divorce on the ground of adultery of
others. It is pertinent to note that the adultery for the purpose of divorce may be committed by
any of the parties to marriage unlike section 497 of IPC, where only male is liable for
punishment. If the wife is involved in adultery, then her husband has the right to get divorce.
The decriminalization of adultery didn't alter this course of remedy available to non
adulterous husband or wife.

On the similar lines, the maintenance given by husband to wife or wife to husband under
various provisions of personal laws like section 24 & 25 of Hindu Marriage Act 1955, section
18 of Hindu Maintenance Act 1955 are also unaffected due to decriminalization of adultery.
Any husband or wife can't claim benefit in their favour on the ground that adultery is no more
an offence. The adultery is very much relevant and is actionable under matrimonial laws in
almost all the personal laws in India.

Furthermore, section 125(4), which talks about non entitlement of maintenance for a wife if
she is living in adultery, is also unaffected by decriminalization of adultery. Though section
497 IPC and sec 125(4) Crpc, both are related to criminal codes, but even after there is no
impact of striking down section 497 ipc on sec 125(4) as the later is purely a social welfare
legislation inserted in criminal law for its better enforcement.

In the case of Ammini E.J. v. Union of India9, the Kerala High Court held that the husband
is in a favorable position with respect to it being a ground for divorce because the wife has to
prove adultery along with some other aggravating circumstances and hence it is
discriminatory towards the wife. The Court also ruled that the wife may file for divorce only
on the grounds of adultery, without any other qualifying offence such as cruelty or desertion.

In the case of Dastane v. Dastane10, the apex court held that there certainly is no necessity
of the presence of proof beyond reasonable doubt where personal relationships are involved,
especially those between a husband and wife.

The Special Marriage Act, 1954 recognizes adultery and states that if the respondent has after
the solemnization of the marriage, had voluntary sexual intercourse with any person other
than his/her spouse, it is a valid ground for divorce.

The Act has recognized adultery itself as an offence and no additional offence has to be
proved in order to obtain a decree of divorce or judicial separation. The present position on
the concept of burden of proof has also been relaxed under the Special Marriages Act, 1954.

9 Ammini E.J. v. Union of India AIR 1995 Ker 252

10 Dastane v. Dastane 1975 SCC (2) 326

18
In the case of Sari v. Kalyan11, it was stated that adultery may be proven by a preponderance
of evidence and need not be proved beyond reasonable doubt as prima facie evidence as to
the act of adultery may not be present and circumstantial evidence will have to suffice.

PRAYER

WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED,

AND AUTHORITIES CITED, IT IS HUMBLY REQUESTED THAT THIS HON’BLE
COURT MAY BE PLEASED TO ADJUDGE AND DECLARE:

1.The special leave Petition is Maintainable under Article 136 of the constitution.

2.The Decriminalization of Sec 497 of I.P.C Degrades the sanctity of Marriage.

11 Sari v. Kalyan 85 CWN 73

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 3.The Benefits of the petitioner cannot be denied under the grounds of
Decriminalization of Sec 497 of I.P.C .

AND MAY PASS ANY SUCH ORDER, OTHER ORDER THAT IT DEEMS FIT IN THE
INTEREST OF JUSTICE, EQUITY AND GOOD CONSCIENCE.
AND FOR THIS, APPELLANT AS IN DUTY BOUND SHALL HUMBLY PRAY.

RESPECTFULLY SUBMITTED BY
COUNSELS ON BEHALF OF THE APPELLANT

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