COVER PAGE

INDEX
 INDEX OF AUTHORITIES

CASE LAWS

CASE TITLE CITATION

STATEMENT OF JURISDICTION
 STATEMENT OF FACTS

1. Mr. Rahul Sen and Mrs. Susmita Sen got married in 2017 and were both residents of Kolkata,
working for a US-based Multi-National Company.
2. After three years of marriage, Mrs. Sen discovered that she couldn't have a healthy child due to
a congenital medical problem in her husband, which he had kept secret.
3. The couple had a big fight, and Mrs. Sen developed an extramarital relationship with her
colleague, Mr. Vaidya. Mr. Vaidya's wife, Mrs. Madhu, filed a complaint against her husband,
Mrs. Sen, and Mr. Sen as an abettor.
4. Meanwhile, an NGO filed a Public Interest Litigation in the Supreme Court to strike down Section
497 of the Indian Penal Code, which gives immunity only to adulteress and not to men, on the
grounds that it violates various provisions of the Indian Constitution.
5. Mrs. Madhu also challenged the constitutional validity of Sec. 497 and Section 198(2) of the
Code of Criminal Procedure, which she deemed discriminatory on the basis of sex.
6. Thereafter, She filed for divorce from her husband under The Hindu Marriage Act, 1955. Mr.
Rahul Sen also applied for divorce, and Mrs. Susmita Sen objected, saying that her husband's
non-disclosure of his medical condition had led to the current state of affairs.
7. Mr. Vaidya was convicted of adultery by the Chief Metropolitan Magistrate, which was upheld
by the Sessions Court.
8. In furtherance of this, he challenged his conviction and the constitutional validity of Section 497
in the Hon'ble Supreme Court.
 ISSUE RAISED

ISSUE (1)

Whether the present PIL and Writ Petition filed by NGO and Ms. Madhu, respectively are
maintainable?

ISSUE (2)

Whether the present Special Leave Petition filed by Mr. Vaidya against the order of Sessions Court
maintainable?

ISSUE (3)

Whether Section 497 of IPC and Section 198(2) of the CrPC violate Part III of the Constitution?
 SUMMARY OF ARGUMENTS

1.

ARGUMENTS

ISSUE (1): Whether the provisions of the Special Marriage Act, 1954 which does not recognise
same-sex marriage be declared unconstitutional to that extent and such marriage be declared as
legally valid marriages?

1. It doesn’t violate Article 14.

a) It comes under the State power for making laws under reasonable classification.
b) It comes under the duty of state to put reasonable restrictions.
2. The right to autonomy and dignity under Article 21 by penalizing private
consensual acts between same-sex persons.
a) It doesn’t impact Special Marriage Act.
b)
3. It doesn’t violate Article 15.
a) It doesn’t discriminate on the basis of sex and non-sexual orientatition.
It doesn’t violate Article 14.

a) It comes under the State power for making laws under reasonable
classification.

1. The Supreme Court describes the jurisprudence of equality before the law. The very
famous “classification test” had been given in this case. Simply put, it permits the State to
make differential classification of subjects (which would otherwise be prohibited by
Article 14) provided that the classification is founded on intelligible differentia (i.e.
objects within the class are clearly distinguishable from those that are outside) and has a
rational nexus with the objective sought to be achieved by the classification.1 
2. This provided needed clarification to the reasonable classification test. Here, the court
made a distinction between the statute which themselves make a classification and those
which authorize the executive to make a classification. In the first case, the statute will be
invalid if it fails to meet the reasonable classification test. In the latter case, if the statute
provides guidelines, whether express or implied, to the executive to make classification,
1
Ram Krishna Dalmia v. Justice Tendolkar, AIR 1958 SC 538
 and the executive fails to meet the test, only the action will be invalid and not the statute
itself.2 
3. The second test of Article 14 referred to as the “new doctrine” or the “arbitrariness test”,
was propounded by Bhagwati, J. in this case. The test postulates that the equality
envisaged by Article 14 includes a guarantee against arbitrariness in State action. This test
has subsequently found favour with the Supreme Court and despite its somewhat vague
formulation, has formed the basis on a number of occasions for State action being
declared ultra vires Article 14.3
4. The seven-Judge Bench held that a triumvirate exists between Article 14, Article 19 and
Article 21. All these articles have to be read together. Any law interfering with personal
liberty of a person must satisfy a triple test: (i) it must prescribe a procedure; (ii) the
procedure must withstand the test of one or more of the fundamental rights conferred
under Article 19 which may be applicable in a given situation; and (iii) it must also be
liable to be tested with reference to Article 14. As the test propounded by Article 14
pervades Article 21 as well, the law and procedure authorizing interference with personal
liberty must also be right and just and fair and not arbitrary, fanciful or oppressive. If the
procedure prescribed does not satisfy the requirement of Article 14 it would be no
procedure at all within the meaning of Article 21.4
5. As per the facts, their registration of marriage before the Registrar of marriage, however,
their application was summarily rejected on the ground that the Indian laws do not
recognize same-sex marriage, and therefore, no Marriage Certification can be issued.
Moreover, the Registrar also told them that even if they get their marriage recognised
under the law, they would face difficulties at various levels. Since this would include the
property rights and calculation of shares, who will have the maintenance rights, right
against cruelty, custodial rights of children. Henceforth, this doesn’t fall under the
unreasonable classification.5
6. This is a landmark judgment on aspects of reservation in India. The Court interpreted the
relation between Article 14 and Article 16. It was held that Article 16(1) is a facet of
Article 14. Just as Article 14 permits reasonable classification, so does Article 16(1). A

2
Magan Lal Chaggan Lal v Municipal Corporation of Greater Bombay, AIR 1974 SC 2009
3
E.P. Royappa v. State of Tamil Nadu, 1974 AIR 555.
4
Maneka Gandhi v UOI, (1978) 1 SCC 248
5
Para 2 & 3, Fact Sheet.
 classification may involve reservation of seats or vacancies. The principle aims of Article
14 and 16 is equality and equality of opportunity and Clause (4) of Article 16 is a means
of achieving the very same objective. Both the provisions have to be harmonized keeping
in mind the fact that both are the restatements of the principle of equality enshrined in
Article 14.6

7. Air India, a state-owned company, required female flight attendants to retire under three
circumstances: (1) upon reaching 35 years of age, (2) upon getting married, or (3) upon first
pregnancy. The same rules were not applicable to male attendants. The Court struck the rules
down, holding that these requirements constituted official arbitrariness and hostile
discrimination in violation of Article 14.7

2. The right to autonomy and dignity under Article 21 by penalizing private

consensual acts between same-sex persons.

8. The Court described ‘constitutional morality’ as the ideals and morals of the Constitution and
the values that create an inclusive society. It recognized the Constitution as a tool to
transform society. A decision on whether a penal provision violates fundamental rights must
be guided by the principles of constitutional morality and not societal morality. Where a
constitutional court finds that a provision violates constitutional morality, it must be struck
down.

6
Indra Sawhney v UOI, AIR 1993 SC 477
7
Air India v Nargesh Meerza, [1978] 2 SCR 621
https://www.scobserver.in/cases/nandini-praveen-union-of-india-constitutionality-of-special-
marriage-act-case-background/

RESEARCH

Sec 377 does not violate the constitutional rights of a person as it is the duty of state to put
reasonable restriction  

It does not violates Art 14 as the state has the power to identify who should be regarded as a class
for making laws under reasonable classification

It does not violate Art 15 as the article mainly prohibits discrimination on the basis of sex and not
sexual orientation which is nowhere described.

It will also impact Parsi Marriage and Divorce Act, Special Marriage Act, Indian Divorce Act and Hindu
Marriage Act.

1. It comes under the duty of state to put reasonable restrictions.

c) It doesn’t impact Special Marriage Act.

The Supreme Court has in Shafin Jahan vs Union of India, affirmed that the right to marry is one's integral
choice and is a fundamental right under Article 21 of the Indian Constitution. Also, In K.S. Puttaswamy
Case[51] the Hon'ble held that the right to privacy is a fundamental right and the right to choose a life partner is
one of its facets.8

Laxmibai Chandaragi B versus State of Karnataka (2021). Similarly, in Shakti Vahini versus Union of
India (2018), the court held that when two consenting adults choose a life partner, they are well within their
rights as provided by Articles 19 and 21 of the Constitution.9

Here, it should be noted that the court says “two consenting adults” and does not mention the gender of the
adults. Therefore, through precedent, it can be said that the right to marry is a fundamental right given under
Article 21 of the Constitution.

The Madras High Court upheld a Hindu marriage between a cisgender man and a transgender woman in Arun
Kumar and Anr. versus The Inspector General of Registration and Ors. (2019). According to Justice G.R.
Swaminathan, the term ‘bride’ in Section 5 of the Hindu Marriage Act, which outlines the prerequisites for
Hindu marriages, cannot have a fixed definition. Instead, it needed to be revised to take into account
transwomen, intersex persons, and other transgender people who identified as women, as well as the shifting
sociocultural standards. The court went on to acknowledge that there are several gender identities. Contrary to
the position of the Union Government, the court upheld the validity of marriages between non-traditional
genders (that is, those that were not to biological women) despite the fact that it did not address same-sex
marriage in its ruling.10

8
Shafin Jahan v. Asokan K.M. (2018) 16 SCC 368
9
Laxmibai Chandaragi B versus State of Karnataka (2021) 3 SCC 360
10
Arun Kumar and Anr. versus The Inspector General of Registration and Ors. (2019) W.P. (MD) NO 4125 OF
2019
 3) It doesn’t violate Article 15.
a) It doesn’t discriminate on the basis of sex and no-sexual orientation.

The Court observed that India is a signatory to the Yogyakarta Principles which prohibits

discrimination on the grounds of sexual orientation and gender identity.  NALSA vs. Union of
India also relied on these principles, though they are not binding, to uphold the right of non-
discrimination on the grounds of gender identity. Relying on the Yogyakarta Principles
and NALSA, the Court held that Section 377 does not conform with India’s international
obligations.

Arguments from Navtej Singh judgement

The Union has submitted that so far as the constitutional validity of Section 377 IPC, to the extent it
applies to 'consensual acts of adults in private', is concerned, the respondent leaves the same to the
wisdom of this Court.

The respondent has also contended that in the event Section 377 IPC so far as 'consensual acts of
adults in private' is declared unconstitutional, other ancillary issues or rights which have not been
referred to this Bench for adjudication may not be dealt with by this Bench as in that case, the Union
of India expresses the wish to file detailed affidavit in reply, for consideration of other issues and
rights would have far reaching and wide ramifications under various other laws and will also have
consequences which are neither contemplated in the reference nor required to be answered by this
Hon‘ble Bench.
There is no personal liberty to abuse one‘s organs and that the offensive acts proscribed by Section
377 IPC are committed by abusing the organs. Such acts, as per the intervenor, are undignified and
derogatory to the constitutional concept of dignity and if any infraction is caused to the concept of
dignity, then it would amount to constitutional wrong and constitutional immorality.

As per the intervenor, Section 377 rightly makes the acts stated therein punishable as Section 377
has been incorporated after taking note of the legal systems and principles which prevailed in
ancient India and now in 2018, the said Section is more relevant legally, medically, morally and
constitutionally.

To illustrate this, the intervenor has drawn the attention of this Court to W. Friedmann from 'Law in
a Changing Society' wherein he has observed that to prohibit a type of conduct which a particular
society considers worthy of condemnation by criminal sanctions is deeply influenced by the values
governing that society and it, therefore, varies from one country to another and one period of
history to another.

It is also the case of the intervenor that if Section 377 is declared unconstitutional, then the family
system which is the bulwark of social culture will be in shambles, the institution of marriage will be
detrimentally affected and rampant homosexual activities for money would tempt and corrupt
young Indians into this trade. fundamental rights are not absolute, there is no unreasonableness in
Section 377 IPC and decriminalizing the same would run foul to all religions practised in the country,
and, while deciding the ambit and scope of constitutional morality, Article 25 also deserves to be
given due consideration.

The applicant, through his learned counsel Mr. Harvinder Chowdhury, submits that if the right to
privacy as recognized in Puttaswamy (supra) is allowed its full scope and swing, then that itself
would rule out prosecution in all cases of consensual unnatural sex between all couples, whether
heterosexual or homosexual, and without having to engage in reading down, much less striking
down of, the provisions of Section 377 IPC in its present form. This is so because the State cannot
compel individuals engaging in consensual sexual acts from testifying against one another as it
involves a breach of privacy unless the consent itself is under challenge and one cannot be a
consenting victim of a crime so long as the consent is legally valid.

Submissions have also been advanced on behalf of Raza Academy, intervenor, through its learned
counsel Mr. R.R Kishore, who has contended that homosexuality is against the order of nature and
Section 377 rightly forbids it. Prohibition against carnal intercourse involving penetration into non-
sexual parts of the body does not constitute discrimination as laws based on biological reality can
never be unconstitutional, for if a male is treated as a male, a female as a female and a transgender
as a transgender, it does not amount to discrimination.

The applicant has submitted that the purpose of criminal law is to protect the citizens from
something that is injurious and since carnal intercourse between two persons is offensive and
injurious, it is well within the State's jurisdiction to put reasonable restrictions to forbid such
aberrant human behaviour by means of legislation, for it is the duty of the State that people with
abnormal conduct are prohibited from imperiling the life, health and security of the

The applicant, after citing the case of State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and
others11, has stressed upon the fact that the interest of a citizen or a section of the society,
howsoever important, is secondary to the interest of the country or community as a whole and while
judging the reasonability of restrictions imposed on fundamental rights, due consideration must also
be given to the Directive Principles stated in Part IV. In view of these aforesaid submissions, the
applicant has submitted that fundamental rights may not be overstretched and the Directive
Principles of State Policy which are fundamental in the governance of the country cannot be
neglected, for they are not less significant than what is fundamental in the life of an individual as
held in Kesavananda Bharati v. Union of India. 12

11
2 (2005) 8 SCC 534
12