MOOT PROBLEM ON CRIMINAL LAW

In the case of:

Mrs. Madhu V. Mr. Vaidya and Others

Mr. Rahul Sen and Mrs. Susmita Sen were married in 2017 and were residents of Kolkata in the
State of West Bengal and they were working there in a US based Multi National company.

After 3 years of their happy marital life, Mrs. Susmita Sen became aware that she cannot give
birth to a healthy child. She came to know about this fact by reading medical reports kept
secretly by her husband. As per that report Mr. Rahul suffered from some serious congenital
medical problem that may pass on to their child.

Then 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 secret. She remained in her
in-laws house under their care, as her husband went for employment training program to Pune
for two months.

After some time Mr. Rahul learnt that his wife, desirous of having a healthy child, developed an
extra marital relationship with her office colleague, Mr. Vaidya. However, he did not object to
the same.

Mr. Vaidya however, confessed to his wife that he had an illicit relationship with Mrs. Susmita.
Mrs. Madhu, wife of Mr. Vaidya, furious about the matter, filed a complaint against her husband
as ‘main accused,’ Mrs. Susmita Sen as ‘second accused’ and Mr. Rahul Sen as ‘an abettor’ as he,
through his silence and acquiescence facilitated, rather, to put it bluntly, encouraged Mrs.
Susmita Sen and Mr. Vaidya 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
Section 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. Madhu also impleaded 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. Susmita, 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. Madhu also filed a petition in the Family Court for ‘divorce’ from her husband under The
Hindu Marriage Act, 1955.
Mr. Rahul also applied for divorce from his wife under The Hindu Marriage Act, 1955. Mrs.
Susmita Sen objected that ‘it is strange that he, instead of she, filed for divorce when ‘in reality
non-disclosure of his serious health problem has brought forth this state of affairs’.

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.

 The matter to be heard by the Hon’ble Supreme Court.

 Students shall prepare memorials/arguments for both Petitioner and Respondent.
 Students may frame their own issues

Facts of the case

1. The petitioner is the wife of the accused, wherein the petitioner has
alleged that the accused no 1 has indulged in adultery with accused
no 2 and accused no 3 to have abetted the same act.
2. Accused 2 and 3 are husband and wife, wherein they where trying
to have a child and prior to alleged offense the wife found out about
husband’s medical condition that may pass on to the child. The
alleged abettor husband thereon went to Pune for work based
training. While the accused no 3 was in Pune the alleged offense
was committed.
Issues

1. Is section 198 (2) unconstitutional under section 15(1).

2. Can accused no 2 be charged under 497 IPC, of it being violative of
article 14.
3. Was HC correct in quashing the criminal proceeding under 497(3)

1. Affirmative
2. Negative
3. Partly affirmative

Judgment
The court answer the first issue in affirmative. Section 198 dictates
procedure of filling an charge under section 497, wherein it define what
persons may file a charge. Such as it defines who shall have the right to
be aggrieved.
The court finds that definition under section 198(2) devoids the women
the right to file a case against adultery as it restricts the definition of
aggrieved to only a male.
Such a narrow definition prima facie not only degrades the right of
married women but also puts the women to a greater amount of suffering
by engaging in impious marriage.
The negative discrimination based on gender is evident, such is violative
of article 15(1).
Section 497 of Crpc punishes the act of adultery while carving an
exception for women indulging in the adulterous act. The Petitioner have
argued the case on constitutional fronts, putting it to be unconstitutional
upon it being violative of article 15(1).
Such a similar matter is also sub-judice in this court, The petitioner have
argued that such an article which is discriminative on the grounds of sex ,
is violative of constitutional principals and is liable to be struck down.
Section 15(2) also lays down that acts or law made in favor of women, to
protect women, discriminative based on gender , such discrimination is a
positive one, done in order to protect women and thus cannot be said to
be violative of section 14.
The court was right in quashing the criminal proceeding against accused
no3 and accuse no 2 . As there is no prima facie evidence through which
act accused no3 is said to have abetted the act of adultery and section 497
(3) refrains courts from initiating criminal proceeding against a women
in case of adultery.