Ruhul Amin (1737)

VIIITH SEMESTER CLASS MOOT I, 2021

BEFORE THE HON’BLE SUPREME COURT OF INDIA

Special Leave Petitioner No. __ of 2021

--IN THE MATTER OF--

MRS. NAIK ...................................................... PETITIONER

VERSUS

UNION OF INDIA .................................................. RESPONDENT

MOST RESPECTFULLY SUBMITTED BEFORE THE HONOURABLE CHIEF

JUSTICE AND OTHER JUDGES OF SUPREME COURT OF INDIA

MEMORIAL ON BEHALF OF RESPONDENT DRAWN AND FILED BY THE

COUNSEL FOR THE RESPONDENT.

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 TABLE OF CONTENTS

[1]. LIST OF ABBREVATIONS…………………………………………………………………………………..3

[2]. INDEX OF AUTHORITIES…………………………………………………………………………………..4

[3]. STATEMENT OF JURISDICTION………………………………………………………………………….6

[4]. STATEMENT OF FACTS…………………………………………………………………………………...7

[5]. STATEMENT OF ISSUES…………………………………………………………………………………..8

[6]. SUMMARY OF ARGUMENTS…………………………………………………………………………….9

[7]. ARGUMENTS ADVANCED………………………………………………………………………………10

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 LIST OF ABBREVIATIONS

S.No ABBREVIATION EXPANSION

1. ¶ Paragraph

2. AIR All India Report

3. Anr Another

4. Art. Article
5. Bom Bombay

7. S Section

9. L.R Law Reporter

11. SC Supreme Court

12. SCC Supreme Court Cases

13. PIL Public Interest Litigation

14. IPC Indian Penal Code

15. CrPC Code if Criminal Procedure

16. Edn Edition

17. Ors Others

18. SUPP Supplementary

19. U.O.I Union of India

20. U.P Uttar Pradesh

22. v. Versus
23. Vol. Volume

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 INDEX OF AUTHORITIES

CONSTITUTION OF INDIA

I. LIST OF STATUTES

1. THE INDIAN PENAL CODE, 1860

2. THE CODE OF CRIMINAL PROCEDURE, 1973

II. LIST OF CASES REFERRED

S.NO. CASES CITATION

1. Ramesh Thapar V. Union of india AIR 1950 SC 124

2. Govt of Andra Pradesh V. A P Jaiswal Civil Appeal 4779

3. Yusuf Abdul Aziz vs The State Of Bombay AIR 1954 SC 321

4. Revati V. Union of India AIR 1988 SC 835

5. Sowmitri Vishnu V Union of India 1985(53)BomLR736

6. K.S.Puttaswamy and Anr vs Union Of India and Ors (2017) 10 SCC1

7. Dawoodi Bohra Community and Anr v State of (2005) 2 SCC 673

Maharashtra and Another

8. Sarla Mudgal v. Union of India AIR 1995 SC 1531

9. Chetan Dass v. Kamla Devi AIR 2001 SC 1709

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 LIST OF BOOKS REFERRED

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. K D Gaur, Textbook on Indian Penal Code

Online Reference
1. www.indiankanoon.org

2. www.livelaw.in

3. www.lawotopus.com

4. www.scconline.com

5. www.lawaudiance.com

6. www.Journal.indianlegalsolution.com

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 STATEMENT OF JURISDICTION

The Respondent have humbly submitted before the Hon’ble Supreme Court as it has jurisdiction to
try the instant matter under Article 136 r/w Article 139A of the Constitution of India, 1950.

Article 136. Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special
leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter
passed or made by any court or tribunal in the territory of India
(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.
Read with

Article 139A. Transfer of certain cases

(1) Where cases involving the same or substantially the same questions of law are pending before
the Supreme Court and one or more High Courts or before two or more High Courts and the Supreme
Court is satisfied on its own motion or an application made by the Attorney General of India or by a
party to any such case that such questions are substantial questions of general importance, the
Supreme Court may withdraw the case or cases pending before the High Court or the High Courts
and dispose of all the cases itself: Provided that the Supreme Court may after determining the said
questions of law return any case so withdrawn together with a copy of its judgment on such questions
to the High Court from which the case has been withdrawn, and the High Court shall on receipt
thereof, proceed to dispose of the case in conformity with such judgment
(2) The Supreme Court may, if it deems it expedient so to do for the ends of justice, transfer any
case, appeal or other proceedings pending before any High Court to any other High Court.

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 STATEMENT OF FACTS

1. Mr. Anil and Mrs. Anil were married in 2016 and were residents of Mangalore in Karnataka State
as he was working there in shipping and fishing company.
2. 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.
3. After some time Mr. Anil learnt that his wife, desirous of having a healthy child, developed extra
marital relationship with his office colleague, Mr. Naik, but did not object to the same.
4. Mr. Naik confessed to his wife that he had illicit relationship with Mrs. Anil.
5. Mrs. Naik filed a complaint against her husband as ‘main accused,’ Mrs. Anil as ‘second accused’
and Mr. Anil as ‘an abettor’.
6. 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.
7. Mrs. Naik also impleaded herself challenging the constitutional validity of sec. 497 in the Supreme
Court as it violates different Articles of Indian Constitution.
8. She also submits that such ‘total immunity cannot be given to Mrs. Anil, the adulteress.
9. 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.
10. Mrs. Naik also filed a petition in the Family Court for ‘divorce’ from her husband under The
Hindu Marriage Act, 1955.

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 STATEMENT OF ISSUES

ISSUE I :

Whether the application filed by Mrs. Naik challenging the constitutional validity of
Section 497 of IPC and Section 198(2) of CrPC brought before this court is
maintainable?

ISSUE II :

Whether Section 497 of IPC read with Section 198(2) of CrPC is unconstitutional?

ISSUE III :

Whether the exception granted to married women under section 497 of IPC violates the
fundamental rights of adulter guaranteed under the Indian Constitution?

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 SUMMARY OF ARGUMENTS

Issue I : Whether the application filed by Mrs. Naik challenging the constitutional validity
of Section 497 of IPC and Section 198(2) of CrPC brought before this court is maintainable?

It is humbly submitted that the present application is not maintainable under article 32 of the
constitution of India. It is further submitted that the impugned provision doesn’t violate any of the
fundamental rights guaranteed under part III of the constitution and that the present petition is
frivolous

Issue II : Whether Section 497 of IPC read with Section 198(2) of CrPC is unconstitutional?

It is humbly submitted that section 497 of the Indian penal code read with section 198(2) of thecode
of criminal procedure is constitutional as it does not contravene Article 14, 15 and 21 of the
Constitution.

Issue III : Whether the exception granted to married women under section 497 of IPC
violates the fundamental rights of adulter guaranteed under the Indian Constitution?

It is humbly submitted that, the exemption granted to married women under section 497 of the
Indian penal code should be construed as a beneficial legislation which is protected by Article
15(3) of the constitution and thus the said exemption is constitutional.

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 ARGUMENTS ADVANCED

I WHETHER THE APPLICATION FILED BY MRS. NAIK CHALLENGING THE CONSTITUTIONAL

VALIDITY OF SECTION 497 OF IPC AND SECTION 198(2) OF CRPC BROUGHT BEFORE THIS

COURT IS MAINTAINABLE?

1. The application is not maintainable under Article 32 of the Constitution as there is no

violation of the fundamental rights:-

1.1(1) It is humbly submitted that the present application is not maintainable as the impugned provisions
doesn’t violate any of the fundamental rights guaranteed under part III of the Indian
Constitution.

1.1.(2) The hon’ble court has held that only when there is a violation of fundamental rights, it can step
in under the jurisdiction of Article 32 in the case Ramesh Thapar V. Union of India 1

1.1(3) The constitution empowers the Centre and state to legislate on criminal law and the Centre has
exercised the powers conferred on it in defining adultery and bigamy as criminal offences under
the Indian Penal Code. Judicial review will therefore be available only on the grounds of
established violation of fundamental rights guaranteed under article 14,15,19 and 21 of the
constitution.

1.1(4) No substantive argument can be advanced against adultery as a criminal offence save and except
some so-called popular notions and that it is arbitrary and discriminatory on the grounds of
under inclusion. Under inclusion cannot be a ground of challenge. The exception of women is
based on the principles of affirmative action under article 15(3) of the constitution of India and
the absence of provision for prosecution by women is similarly based on the principle of reverse
discrimination ie, a woman can be sued. It is pertinent to note that the context of the Indian
penal code is that only the outsider to the marriage can be punished.

1
(1) AIR 1950 SC 124

10
1.1(5) The injury caused by adultery cannot be ignored. being cheated on has a tangible negative side
effect to both physical and mental health. sexual fidelity is not to be taken lightly it is still valued
and as an essential component of marriage. Section 497 of the IPC and section 198(2) of CrPC
are legislations intended to protect the sanctity of marriage by facilitating the right to live with
dignity.

1.1(6) infidelity in marriage breaches truest as it devalues the family as a whole. Divorce is not enough
for such an invasion to matrimonial home, the outsider, intruding in to the family must be
punished. Hence it is to be concluded that the impugned provisions are drafted by the legislature
with the intent of achieving, criminal justice and the agreement that these provisions are
unconstitutional is futile.

1.2 The Writ of Mandamus Need Not Be Granted:

1.2(1) 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.

1.2(2) 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.

1.2(3) it is humbly submitted that there is abuse of process by the petitioner, in filing a frivolous Public
Interest Litigation. It is the duty of the court to discourage such petitions and that the course of
justice is not obstructed by litigants invoking jurisdiction of this court in the garb of Public
Interest Litigation.

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1.2(4) In Aeltemesh Rein v. Union of India 2, 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.

1.2(5) In State of Jammu &Kashmir v. A R Zakki 3 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 exercises the power to make rules.

1.2(4) therefore, it is most humbly submitted that this hon’ble court may exercise its discretion
judiciously not by granting this prerogative writ of mandamus and dismiss the petition as it is
not maintainable under Article 32 of the Indian Constitution.

2
(2) 1988 AIR 1768
3
(3) AIR 1992 SC 1546

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 II WHETHER SECTION 497 OF IPC READ WITH SECTION 198(2) OF CRPC IS

UNCONSTITUTIONAL?

2.1 The definition of adultery in section 497 IPC read with Section 198(2) of the CrPC does
not contravene Article 14 and 15 of the constitution.

2.1(1) it is humbly submitted that under section 497 of the Indian Penal code, adultery can be committed
only by a man and not by a woman. Section 497 of IPC states that:

“Whoever has sexual intercourse with a person who is and whom he knows or has reason to
believe tobe the wife of another man, without the consent or connivance of that man, such sexual
intercourse notamounting to the offence of rape, is guilty of the offence of adultery”

2.1(2) Further section 198(2) of the criminal Procedure code 1973 allows the husband to bring charges
against the man with whom his wife has committed adultery. But neither permits the husband
to charge his wife with adultery not permits a women to charge the husband with adultery.

2.1(3) The provisions of law under challenge in the present writ have been specifically created by the
legislature in its wisdom, to protect and safeguard the sanctity of marriage, keeping in mind the
unique structure and culture of the Indian society. The decriminalization of adultery will result
in weakening the sanctity of a marital bond and will result in laxity in the marital bond.

2.1(4) The present application under article 32 of the constitution of India is liable to be dismissed at
the very outset as section 497 of the Indian penal code, 1860 supports and safeguards and
protects the institution of marriage. In Sowmithri Vishnu vs. union of India 4 this court has held:

“………If we were to accept the argument of the petitioner, section 497 will be obliterated from
the statute book and 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 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 notan ideal to be scorned…”

2.1(5) Before marriage a women’s legal guardian is her father but after her marriage, according to

4
(4) 1985 SCC 137

13
 Hindu minority and guardianship act (1956) her husband is the legal guardian. Therefore, the
legal guardian that is her husband has the right to take of her and also to prosecute others on her
behalf if any crime is committed against her.

2.1(6) The petitioners stand that section 497 IPC is against equality and there is gender discrimination
and hence unconstitutional cannot stand because the state can make special provisions for
women and children under article 15(3) of the constitution. The same has been observed and
stated in Yusuf Abdul Aziz v. State of Bombay 5 by the Supreme Court.

2.1(7) Also in the case of Sowmithri Vishnu v. Union of India 6, the supreme court said that even if the
provision does not provide for hearing the married woman, court can still hear her and there is
nothing, either in the substantive or the adjective criminal law, which bars the court from
affording a hearing to a party, which is likely to be adversely affected directly and immediately
by the decision of the court.

2.1(8) It also needs to be noted that part of section 497 which excludes wife from being punished as an
abettor has been upheld by the Constitution bench of this Hon’ble Court in Yusuf Abdul Aziz
v State of Bombay. If Yusuf has to be revisited, the matter has to be referred to a larger Bench.

2.1(9) This Hon’ble Court in Central Board of Dawoodi Bohra Community and Anr v State of
Maharashtra and Another 7 held, that “A Bench of lesser quorum cannot disagree or dissent
from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench
of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter
being placed for hearing before a Bench of larger quorum than the Bench whose decision has
come up for consideration. It will be open only for a Bench of coequal strength to express an
opinion doubting the correctness of the view taken by the earlier Bench of coequal strength,
whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger
than the one which pronounced the decision laying down the law the correctness of which is
doubted.”

1. On the premise that law doesn’t envisages the prosecution of wife by the husband for
adultery12.

5
1954 AIR 321
6
AIR 1618 1985 SCR Supl
7
(2005) 2 SCC 673

14
2.1(11) Merely because Section 497 IPC doesn’t take in cases where the husband has sexual relation
with a unmarried woman or widow, it would not become unconstitutional

1. An under inclusive definition is not necessarily discriminatory;

2. The principle underlined in the offence of adultery is to deal with the offence committed by
anoutsider to the matrimonial unit, who invades the peace and privacy of the matrimonial
unit and poisonsthe relation between constituting the matrimonial unit.

2.1(12) Also in Sowmithri v. Union of India 8 it was stated that the law does not provide freedom to
husbands to be licentious by gallivanting with unmarried women. It only makes a specific kind
of extra-marital relationship an offence, the relationship between a man and a married woman.

2.1(13) The apex court had earlier on three separate occasions in 1954, 1985 and 1988, upheld the
constitutionality of section 497.

2.1(14) The petitioner’s contention that 497 is directly discriminatory against women is saying too
much. The adultery law was made with intention to protect the sanctity of the marriage and to
prevent anyone from entering into the matrimonial home and dismantling it. The Indian society
and ethos give paramount importance to family. The hon’ble court held in Chetan Dass v. Kamla
Devi 9 :

“…The institution of marriage occupies an important place and role to play in the society”
Similar view has been taken in Sarla Mudgal v. Union of India 10

Marriage is the very foundation of civilized society. The relation once formed the law steps in
and binds the parties to various obligations and liabilities thereunder. Marriage is an institution
in the maintenance of which the public at large is deeply interested. It is the foundation of the
family and in turn of the society without which no civilization can exist.

2.1(15) Section 497 does not promote to commit adultery for the husband; the petitioner’s argument
that the husband can commit adultery and I should also is counterproductive and absurd. No
outsider should be allowed to enter into the matrimonial home lest it dismantle and consume

8
AIR 1618 1985 SCR Supl
9
AIR 2001 SC 1709
10
AIR 1995 SC 1531

15
 the very fabrication and meaning of marriage. As Gandhi once said, “An eye for an eye will
make the whole world go blind”.

2.1(16) therefore it is humbly submitted that since the law doesn’t not envisage the punishment of any
spouses at the instance of each other, and only punishes that outsider who breaks in to the
matrimonial home, the provision is not vulnerable to the charge of hostile discrimination and
hence the impugned provision doesn’t contravene Article 14 and 15(1) of the constitution.

2.2 Section 497 of the Indian Penal code read with Section 198(2) doesn’t not contravene
Article21 of the constitution

2.2(1) Article 21 of the constitution contemplates that no person shall be deprived of his personal liberty
unless according to the procedure established by law.

2.2(2) The respondent submits that section 497 doesn’t violate the right to privacy, in Justice KS
puttuswami V union of India 11 , even though the court held that the right to privacy is protected
as an intrinsic part of the freedom guaranteed by part III of the constitution, the court is yet to
specify what is privacy looks like.

2.2(3) the hon’ble court said that citizens have the right to privacy of their home, family life, marriage,
sexual orientation and other matters. The person has a right to safeguard his marriage. Adultery
is similar to dacoity were a person encroaches in to family and obliterates it.

2.2(4) it should be considered that Article 21 is not absolute and is subject to reasonable restrictions.
Therefore, the right to privacy is not a absolute right especially when it comes to marriage.
Contention that adultery is a matter of right to privacy of the spouses and defining the offence
against marriage, under the umbrella of fundamental right is dreadful.

2.2(5) The petitioner’s contention that the section violates article 14 is also apocryphal. The law does
not intend to punish either of the spouses at the instance of each other. Thus, there is no
discrimination at all so far as the women who can’t prosecute the husband. The husband is not
allowed to prosecute the wife as she is not seen as the offender in the eye of the law. The wife
is not permitted as section 198(1) read with 198(2) does not allow her. So conclusively the law
has meted out even handed justice to both spouses in the matter of prosecuting each other or
incarcerating each other. The above statements were also declared in the judicial decision of V

11
AIR 2017 SC 4161

16
 Revathy v Union of India. 12

2.2(6) Constitution makers conferred powers on the Central and State Legislatures under List III Entry
1 of the Constitution of India23 to define a crime and provide for its punishment.

2.2(7) It was held in Smt. Sowmithri Vishnu Vs Union of India & Anr, 13 that it was for legislature to
consider whether Sections should be amended appropriately so as to take note of the
'transformation' which the society has undergone.

2.2(8) No discrimination has been practiced 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. Therefore the respondent
submits under the light of judicial decisions and observations that section 198(2) of CrPC is not
violative of articles 14, 15 and 21. The 156th law commission report of august 1997 and the
Malimath committee report of 2003 both suggests that the adultery law should be amended in
such a way that wife can also prosecute. Therefore, it is most humbly submitted that S.497 of
IPC read with S.198(2) of CrPC is Constitutional

12
AIR 1988 SC 835
13
AIR 1618 1985 SCR Supl

17
 III WHETHER THE EXCEPTION GRANTED TO MARRIED WOMEN UNDER SECTION 497 OF IPC
VIOLATES THE FUNDAMENTAL RIGHTS OF ADULTER GUARANTEED UNDER THE INDIAN

CONSTITUTION?

3.1(1) it is most humbly submitted that under section 497 of IPC, 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. The last sentence of the sections runs –

“In such case the wife shall not be punished even as abettor”.

3.1(2) It is contended that this offends article 14 and 15. The challenge is only to the prohibition on
treating the wife as abettor.

3.1(3) Thus challenge was dealt with and repelled on the grounds that article 14 must be read with other
provisions in part III of the constitution which prescribe the ambit of fundamental rights. In
Yusuf abdul aziz V state of Bombay 14 the court held that the prohibition on treating the wife
as upheld as a special provision which is saved by article 1593) the conclusion was that :-

Article 14 is general and must be read with the other provisions which set out the ambit of
fundamental rights. Sex is a sound classification and although there can be no discriminate in
general on that ground, the Constitution itself provides for special provisions in the case of
women and children. The two articles read together validate the impugned clause in section 497
of the Indian Penal Code.

3.1(4) article 15(3) as an enabling provision in intended to bring out substantive equality in the fullest
sense. Article 15(3) read with other article in part III, serves as a powerful remedy to remedy
the discrimination and prejudice faced by women for centuries.

3.1(5) the argument that clause(3) of Article 15 should be confined to the provisions which are
beneficial to women and can’t be used to give them a license to commit a crime and abet the
crime was dismissed by the hon’ble court in the above mentioned judgement. It was held that :-

“ We are unable to read any such restriction in to clause, not we are able to agree that a provision
which prohibits punishment is tantamount to a license to commit the offence of which

14
AIR 1954 SC 321

18
 punishment has been prohibited.

3.1(6) the 42nd Law commission report 1971 which recommended, the retention of section 497 with
the modification that, even the wife who has sexual relation with a person other than her husband
should be made punishable for adultery. The said recommendation was dissented rightly by
stating that it is not in time with the present day notion of women’s status in marriage.

3.1.(7) the argument that since women are exempted form punishment, men should also be excluded
from the punishment does not have any valid legal basis to rest upon. If the law refuses to punish
the offence, the injured party will do it for himself and thus great crimes, assassinations, and
poisoning wil be the consequence.

3.1(8) it is also well settled that the conditions of the women in this country have not become equal to
that of man. It is true that societal progression has taken place. The increasing crime rates against
women would validate the same. penalising women under section 497 would strengthen a class
already too strong and weaken a class too weak.

3.1(9) therefore, it is most humbly submitted that the precedent laid down in Yusuf abdul aziz v stat of
Bombay 15 should be heavily relied up on and the exception granted to married women under
s.497 of IPC should be continued as a beneficial legislation.

15
AIR 1954 SC 321

19
 PRAYER

Therefore, in the light of the issues raised, arguments advanced and authorities cited, it is most
humbly prayed before the hon’ble court may be pleased to adjudge and declare that;

• The application is not maintainable under Article 32 of the Constitution,

• The section 497 of IPC read with Section 198(2) of CrPC is constitutional,

• The exemption granted to married women under S.497 of IPC is protected by Article 15(3)
ofthe constitution.

And pass any other order that t he h o n ’ bl e c o u r t m ay deems fit in the interests of justice,
equity and good conscience. All of which is respectfully submitted.

Date:

Place: New Delhi, India

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