BEFORE THE HON’BLE SUPREME COURT OF INDIA

WRIT PETITION FILED UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

--IN THE MATTER OF--

JOSEPH SHINE …………………………….……….…………PETITIONER

VERSUS

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

MOST RESPECTFULLY SUBMITTED BEFORE THE HOUNARABLE CHIEF JUSTICE AND OTHER
JUDGES OF SUPREME COURT OF INDIA

MEMORANDUM ON BEHALF OF RESPONDENT DRWAN AND FILED BY THE COUNSELS

FOR THE RESPONDENT.

Submitted to Submitted by

Abhilash Sir Manoj K T M

GLCT 3/4th LLB Roll No. 49

 MEMORIAL ON BEHALF OF THE RESPONDENT

TABLE OF CONTENTS

[1]. LIST OF ABBRIVATIONS…………………………………………………………………………………..

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

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

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

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

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

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

 MEMORIAL ON BEHALF OF THE RESPONDENT

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

8. Hon’ble Honourable

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

C ONSTITUTION O F 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 1954 AIR 321
4. Revati V. Union of India 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
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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
6.

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 petitioner invokes the writ jurisdiction of the hon’ble Supreme Court of india under Article
32 of the Constitution of India by way of Public Interest Litigation for seeking the compensation of
violation of fundamental rights of victims.

The petitioners have approached the Hon’ble Supreme Court under Article 32 of the
Constitution which reads as under:

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights
conferred by this Part is guaranteed

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be
appropriate, for the enforcement of any of the rights conferred by this Part.”

(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and (2 ), Parliament
may by law empower any other court to exercise within the local limits of its jurisdiction all or any of
the powers exercisable by the Supreme Court under clause (2 )

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this
Constitution.
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STATEMENT OF FACT

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, divorces, widowed
women who has bad consensual sexual intercourse with a married man. The law is
discriminatory against the Citizen 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 equally culpable position as men, it will be a license 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 these provisions, prima facie appear to be quite archaic, petitioner has challenged
the constitutional validity of the aforementioned sections by submitting a writ petition vide
Public Interest Litigation. It is contended by the petitioner that these sections are arbitrary,
 MEMORIAL ON BEHALF OF THE RESPONDENT

unreasonable and violative of the principle of gender justice. The respondents refutes all
the contentions.
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STATEMENT OF ISSUES

ISSUE I :

Whether the writ petition filed by Joseph Shine 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?
 MEMORIAL ON BEHALF OF THE RESPONDENT

SUMMARY OF ARGUMENTS

Issue I : Whether the writ petition filed by Joseph Shine 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 writ petition 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 the
code of criminal procedure is constitutional as it does not contravene Article 1415 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 writ petition filed by Joseph Shine challenging the constitutional validity of
Section 497 of IPC and Section 198(2) of CrPC brought before this court is maintainable?

1. The wit petition 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 writ petition 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(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

(1) AIR 1950 SC 124

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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. Divoice 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 To 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.

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

(2) 1988 AIR 1768

(3) AIR 1992 SC 1546
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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.
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ARGUMENTS ADVANCED

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 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”

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 writ petition 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 not
an ideal to be scorned…”

(4) 1985 SCC 137

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

2.1(7) Also in the case of Sowmithri Vishnu v. Union of India, 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 held-

“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.”

2.1(10) The Constitution bench of this Hon’ble Court in Yusuf Abdul Aziz v State of Bombay11
upheld the constitutional validity of Section 497 on the ground that the argument that Section 497
doesn’t confer any right on the wife to prosecute a husband who has committed adultery with a woman
is untenable because

1. It depends on the definition of the offence;

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

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 an
outsider to the matrimonial unit, who invades the peace and privacy of the matrimonial unit and poisons
the relation between constituting the matrimonial unit13.

2.1(12) Also in Sowmithri v. Union of India 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 :

“…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-

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 the very fabrication
and meaning of marriage. As Gandhi once said, “An eye for an eye will make the whole world go
blind”.
 MEMORIAL ON BEHALF OF THE RESPONDENT

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 Article
21 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 , 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 Revathy v Union of India.

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.
 MEMORIAL ON BEHALF OF THE RESPONDENT

2.2(7) It was held in Smt. Sowmithri Vishnu Vs Union of India & Anr,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.
 MEMORIAL ON BEHALF OF THE RESPONDENT

ARGUMENTS ADVANCED

II : 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 Yusaf
abdul aziz V state of Bombay 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 punishment has been
prohibited.
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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 Yosuf abdul aziz v stat of
Bombay 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.
 MEMORIAL ON BEHALF OF THE RESPONDENT

PRAYER

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

• The writ petition 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) of
the constitution.

And pass any other order that it deems fit in the interests of justice, equity and good
conscience. All of which is respectfully submitted.

Date:
Place: New Delhi, India Adv. Vineetha
Adv. Sunish Moncci
Adv. Rajalakshmi
(Counsels for the Respondent)