HAMDARD INSTITUTE OF LEGAL STUDIES AND RESEARCH,

SCHOOL OF LAW, JAMIA HAMDARD

Moot Court exercise towards partial fulfilment of Clinical Legal

Course -II (B.A.LL.B. 805)

SUBMITTED TO-
MR. MOHD YASIN
GUEST FACULTY (LAW)

SUBMITTED BY-
PARTICIPANT 1 PARTICIPANT 2
Name- NAZAR HUSSAIN Name- SIDDHANT SHARMA
Sec- B Sec- B
Roll No.-2019-342-069 Roll No.-2019-342-104
Exam Roll No.- Exam Roll No.-

MEMORIAL CODE- CRL3 P

CLINICAL LEGAL COURSE-II (B.A.LL.B. 805)

 IN THE HON'BLE SUPREME COURT

PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

(WRIT PETITION (PIL) NO. _____ OF 2020)

NGO……………………………………….............................................PETITIONER
Versus
UNION OF INDIA……..........................................................................RESPONDENT

Along-with

PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

(WRIT PETITION (CRI) NO. _____ OF 2020)

MRS. MADHU.........................................................................PETITIONER
Versus
UNION OF INDIA AND OTHERS......................................................RESPONDENTS

Along-with

PETITION UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA

(SPECIAL LEAVE PETITION NO. _____ OF 2020)

MR. VAIDYA.........................................................................PETITIONER
Versus
UNION OF INDIA AND OTHERS......................................................RESPONDENTS

MEMORIAL ON BEHALF OF THE PETITIONER

 TABLE OF CONTENTS

LIST OF ABBREVIATIONS. - - - - - - - - - - - - - - - - - - - - -

INDEX OF AUTHORITIES - - - - - - - - - - - - - - - - - - - - - -

STATEMENT OF JURISDICTION - - - - - - - - - - - - - - - - - - -
-

STATEMENT OF FACTS - - - - - - - - - - - - - - - - - - - - -
-

STATEMENT OF ISSUES. - - - - - - - - - - - - - - - - - - - - -

SUMMARY OF ARGUMENTS - - - - - - - - - - - - - - - - - -

ARGUMENTS ADVANCED - - - - - - - - - - - - - - - - - - - -

A) WHETHER THE PRESENT PIL AND WRIT PETITION FILED BY NGO

AND MS. MADHU, RESPECTIVELY ARE MAINTAINABLE?

B) WHETHER THE PRESENT SPECIAL LEAVE PETITION FILED BY MR.

VAIDYA AGAINST THE ORDER OF SESSIONS COURT MAINTAINABLE?

C) WHETHER SECTION 497 OF IPC AND SECTION 198(2) OF THE CRPC

VIOLATE PART III OF THE CONSTITUTION?

PRAYER - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
 JAMIA HAMDARD UNIVERSITY - 1st MOOT COURT
MEMORIAL ON BEHALF OF PETITIONER

LIST OF ABBREVIATIONS

& And

¶ Paragraph

AIR All India Reporter

ALL Allahabad

Anr. Another

SCR Supreme Court Reporter

Art. Article

Cr. Criminal

Edn. Edition

Govt. Government

IPC Indian Penal Code

Hon'ble Honourable

i.e. That is

No. Number

Cri LJ / Cr LJ Criminal Law Journal

Cr.P.C. Code of Criminal Procedure

SC Supreme Court

SCC Supreme Court Cases

u/s Under Section

v. Versus

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 JAMIA HAMDARD UNIVERSITY - 1st MOOT COURT
MEMORIAL ON BEHALF OF PETITIONER

INDEX OF AUTHORITIES

A. Table of cases
S/no. CASE NAME CITATION PAGE NO.

1 Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161

2 State of Karnataka v. Union of India (1978) 2 SCC 532

3 S.P. Gupta v. President of India (1981) 1 SCC 87

4 State of U.P. v. Synthetics and Chemicals Ltd (1991) 4 SCC 139,

5 V. Venkatesan v. Union of India (2011) 8 SCC 737,

6 People's Union for Democratic Rights v. Union (1982) 3 SCC 235.

of India

7 Common Cause (A Regd. Society) v. Union of (2018) 5 SCC 1.

India

8 Kudrat Sandhu v. Union of India (2017) 10 SCC 800.

9 Rajesh Sharma & Ors. v. State of U.P. & Anr (2017) 3 SCC 247.

10 Yusuf Abdul Aziz v. State of Bombay AIR 1954 SC 321

11 Sowmithri Vishnu v. Union of India AIR 1985 SC 1618.

B. Books, Reports And Digests

1 Field, C.D., Expert Evidence: Medical and Non-Medical, (4th Ed 2007)

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 JAMIA HAMDARD UNIVERSITY - 1st MOOT COURT
MEMORIAL ON BEHALF OF PETITIONER

2 Gaur, KD Firearms ,Forensic Ballistics, Forensic Chemistry and Criminal Jurisprudence,

(2nd Ed 1989)

3 Gaur, KD, Criminal Law: Cases and Materials, (6th Ed. 2009)

4 Gupte and Dighe, Criminal Manual, (7th Ed. 2007)

5 Hill, McGraw, Criminal Investigation, (4th Ed. 2004)

6 James, Jason, Forensic Medicine: Clinical and Pathological Aspects, (1st Ed. 2003)

7 Kelkar, R.V. Criminal Procedure, (5th Ed. 2011)

8 Lal, Batuk, The Law of Evidence, (18th Ed. 2010)

9 Lyons, Medical Jurisprudence & Toxicology, (11th Ed. 2005)

10 Modi’s Medical Jurisprudence and Toxicology, (23rd Ed. 2010)

11 Parikh, C. K, Textbook of Medical Jurisprudence, Forensic Medicine & Toxicology, (6th

Ed. 2002)

12 Ratanlal and Dhirajlal, The Indian Penal Code, 33rd Ed. (2011)

13 Ratanlal and Dhirajlal, The Law of Evidence, 22nd Ed. (2006)

14 Sarkar, Law of Evidence, (13th Ed,1990)

15 Saxena & Gaur, Arms and Explosives, (10th Ed. 2012)

16 Sharma, B.R., Forensic Science in Criminal Investigation & Trials, (4th Ed. 2003)

17 Tyagi, Surendra Prakash, Criminal Trial (2nd ed. 1996)

C. Journals Referred
1 All India Reporter

2 Supreme Court Cases

3 Indian Law Reporter

4 Supreme Court Cases

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 JAMIA HAMDARD UNIVERSITY - 1st MOOT COURT
MEMORIAL ON BEHALF OF PETITIONER

D. Database Referred
1 www.judis.nic.in

2 www.lexisnexis.com

3 www.manupatrafast.com

4 www.scconline.com

5 www.westlaw.com

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 JAMIA HAMDARD UNIVERSITY - 1st MOOT COURT
MEMORIAL ON BEHALF OF PETITIONER

STATEMENT OF JURISDICTION

The present case involves issues related to adultery, criminal law, constitutional law, and family
law. The relevant sections of the Indian Penal Code, 1860 (IPC), Code of Criminal Procedure,
1973 (CrPC), and The Hindu Marriage Act, 1955 1 are implicated in this case. Additionally,
Articles 14, 15, and 21 of the Indian Constitution 2 are also relevant to the case. Section 497 of the
IPC is a provision related to adultery, which is challenged in this case for its constitutional validity.
Section 198(2) of the CrPC, which deals with the prosecution of offences against marriages, is also
challenged for its constitutional validity on the grounds of discrimination based on sex, which is
prohibited under Article 15(1) of the Constitution.
Section 497 of the Indian Penal Code (IPC) deals with the offense of adultery. Adultery is defined
as sexual intercourse between a man and a married woman without the consent or connivance of
her husband.

The jurisdiction for cases related to adultery under Section 497 of IPC lies with the criminal courts
in India. The court of first instance that has jurisdiction to try the case would be the court within
whose territorial jurisdiction the offense was committed.

If the offense of adultery is committed within the limits of a metropolitan area, the case may be
tried by a Metropolitan Magistrate or a Judicial Magistrate of the first class. If the offense is
committed outside the metropolitan area, the case may be tried by a Judicial Magistrate of the first
class or a Magistrate of the second class.

If the offense of adultery is committed by a person who is a member of the armed forces, then the
case may be tried by a court-martial, as per the provisions of the Army Act, 1950, the Air Force
Act, 1950, or the Navy Act, 1957, as applicable.

It is important to note that in India, adultery was decriminalized in 2018 by the Supreme Court of
India in the case of Joseph Shine v. Union of India. The Court held that Section 497 of IPC was
unconstitutional and violative of the fundamental right to equality under the Constitution of India.

1
The HMA is relevant to the case as both Mr. Rahul Sen and Mrs. Madhu have filed for divorce under
this act. The case also involves the aggrieved party provision under the HMA, which entitles a party to
approach the court for relief if their marital life is disturbed due to the actions of another party.

2
Articles 14, 15, and 21 of the Indian Constitution are relevant to the case as they deal with equality
before the law, prohibition of discrimination based on sex, and protection of life and personal liberty,
respectively.

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 JAMIA HAMDARD UNIVERSITY - 1st MOOT COURT
MEMORIAL ON BEHALF OF PETITIONER

STATEMENT OF FACTS

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. Meanwhile, an NGO filed a Public Interest Litigation 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.

7. Mrs. Madhu also filed a writ petition challenging the constitutional validity of sec. 497 in
the Supreme Court as it violates different provisions of Indian Constitution. She also
submits that such ‘total immunity cannot be given to Mrs. Susmita, the adulteress.’

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 JAMIA HAMDARD UNIVERSITY - 1st MOOT COURT
MEMORIAL ON BEHALF OF PETITIONER

8. 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.

9. Mr. Rahul Sen 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’.

10. Chief Metropolitan Magistrate convicts Mr. Vaidya for the offence of adultery, which was
upheld by the Sessions Court. Aggrieved by the said conviction, Mr. Vaidya approached
the Hon’ble Supreme Court by way of an SLP challenging his conviction, and
subsequently, challenged the constitutional validity of sec. 497.

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 JAMIA HAMDARD UNIVERSITY - 1st MOOT COURT
MEMORIAL ON BEHALF OF PETITIONER

STATEMENT OF ISSUES

THE SUPREME COURT, AFTER HEARING PRELIMINARY ARGUMENTS, HAS

FRAMED SUBSTANTIAL ISSUES FOR ITS CONSIDERATION.

ISSUE I
WHETHER THE PRESENT PIL AND WRIT PETITION FILED BY NGO AND MS. MADHU,
RESPECTIVELY ARE MAINTAINABLE?

ISSUE II
WHETHER THE PRESENT SPECIAL LEAVE PETITION FILED BY MR. VAIDYA
AGAINST THE ORDER OF SESSIONS COURT MAINTAINABLE?

ISSUE III
WHETHER SECTION 497 OF IPC AND SECTION 198(2) OF THE CRPC VIOLATE PART III
OF THE CONSTITUTION?

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 JAMIA HAMDARD UNIVERSITY - 1st MOOT COURT
MEMORIAL ON BEHALF OF PETITIONER

SUMMARY OF ARGUMENTS

ISSUE I
WHETHER THE PRESENT PIL AND WRIT PETITION FILED BY NGO AND MS.
MADHU, RESPECTIVELY ARE MAINTAINABLE?

In the case at hand, the Supreme Court has framed the issue of whether the Public Interest
Litigation (PIL) filed by an NGO and the writ petition filed by Ms. Madhu are maintainable. Both
the petitions challenge the constitutional validity of Section 497 of the Indian Penal Code (IPC)
and Section 198(2) of the Code of Criminal Procedure (CrPC).

The PIL filed by the NGO challenges the constitutionality of Section 497 of the IPC on the grounds
that it violates Articles 143, 154, and 215 of the Indian Constitution by giving immunity only to the
woman in cases of adultery, while men are not similarly protected. The writ petition filed by Ms.
Madhu also challenges the constitutionality of Section 497 of the IPC, contending that it violates
various provisions of the Constitution.

The question of whether a PIL is maintainable is primarily a question of law, which depends on
the nature of the claim made in the petition, and whether the petitioner has the standing to raise
such a claim. The Supreme Court has held that a PIL can be filed by any person who is interested
in the public welfare or who seeks to enforce any right or legal obligation, even if they are not
personally aggrieved.

In the present case, the PIL filed by the NGO appears to be maintainable, as it seeks to enforce a
right that affects the public at large, i.e., the right to gender neutrality in criminal law. The writ
petition filed by Ms. Madhu is also maintainable, as she has a personal interest in the matter, having
been directly affected by her husband's alleged adultery with Mrs. Susmita Sen.

As for the challenge to the maintainability of Mr. Vaidya's Special Leave Petition (SLP), it appears
to be a separate issue that is not directly related to the PIL and writ petition. Mr. Vaidya has
challenged the constitutional validity of Section 497 of the IPC and his conviction for adultery,
which are distinct from the issues raised in the PIL and writ petition.

3
Article 14 Equality before law The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race,
caste, sex or place of birth.
4
Article 15 prohibits the discrimination on the basis of faith, sex, caste, race and place of birth. Constitution
of India prohibits any quite disability, restriction or condition with respect to accessing public parks, Shops,
Hotels and restaurants.
5
Article 21 No person shall be deprived of his life or personal liberty except according to procedure
established by law.

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 JAMIA HAMDARD UNIVERSITY - 1st MOOT COURT
MEMORIAL ON BEHALF OF PETITIONER

The PIL filed by the NGO and the writ petition filed by Ms. Madhu are both maintainable, as they
seek to enforce rights and legal obligations that are protected under the Indian Constitution.

ISSUE II
WHETHER THE PRESENT SPECIAL LEAVE PETITION FILED BY MR. VAIDYA
AGAINST THE ORDER OF SESSIONS COURT MAINTAINABLE?

The issue in question is whether the Special Leave Petition 6 (SLP) filed by Mr. Vaidya against the
order of the Sessions Court is maintainable or not. The SLP is filed under Article 136 of the
Constitution of India, which provides that 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 Supreme Court has held that the power to grant special leave under Article 136 is discretionary
and not a matter of right. The Court has also laid down certain principles that need to be satisfied
for the grant of special leave. The grounds for grant of special leave are:

● The case involves a substantial question of law of general importance.

● The decision of the court below is contrary to law or equity.
● The case involves a question of law that requires a uniform interpretation throughout the
country.
● There is a conflict of decisions of different High Courts on the same question of law.
In the present case, Mr. Vaidya has filed an SLP against the order of the Sessions Court, which
convicted him of the offence of adultery. The conviction has been upheld by the Sessions Court.
Mr. Vaidya has challenged the constitutional validity of Section 497 of the Indian Penal Code,
1860. It is important to note that the Supreme Court has already framed substantial issues regarding
the constitutionality of Section 497.

In light of the above, it can be argued that Mr. Vaidya's SLP is maintainable as it involves a
substantial question of law of general importance, namely the constitutionality of Section 497. The
grant of special leave in such cases is within the discretion of the Supreme Court, and it is likely
that the Court will exercise its discretion in favor of Mr. Vaidya given the importance of the issue
involved.

6
Special leave petition” or SLP hold a prime place in the Indian judicial system. It provides the aggrieved
party a special permission to be heard in Apex court in appeal against any judgment or order of any
Court/tribunal in the territory of India.

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 JAMIA HAMDARD UNIVERSITY - 1st MOOT COURT
MEMORIAL ON BEHALF OF PETITIONER

It can be said that the SLP filed by Mr. Vaidya against the order of the Sessions Court is
maintainable, and it is up to the discretion of the Supreme Court to grant special leave or not based
on the principles established by the Court.

ISSUE III
WHETHER SECTION 497 OF IPC AND SECTION 198(2) OF THE CRPC VIOLATE
PART III OF THE CONSTITUTION?

The issue of constitutionality of Section 497 of Indian Penal Code, 1860 and Section 198(2) of the
Code of Criminal Procedure, 1973 has been a matter of intense debate in recent times. The
Supreme Court is tasked with determining whether these provisions are violative of Part III of the
Constitution.

Section 497 of IPC criminalizes adultery by making it an offence punishable with imprisonment
of up to five years. However, the provision exempts women from being punished as adulterers and
treats them only as victims. This section has been criticized as being discriminatory towards men
and violative of the right to equality guaranteed under Article 14 of the Constitution.

On the other hand, Section 198(2) of the CrPC allows only the husband of the woman in question
to file a complaint in cases of adultery, thereby depriving the woman of the right to file a complaint
even if she is the aggrieved party. This section has been challenged as being discriminatory towards
women and violative of Article 14 and Article 15 of the Constitution.

It is the duty of the judiciary to interpret the law in light of the Constitution and ensure that it
conforms to the principles of justice, fairness and equality. It is evident that Section 497 of IPC
and Section 198(2) of the CrPC are discriminatory towards men and women respectively and
violate the fundamental right to equality enshrined under Article 14 of the Constitution.

Furthermore, the exemption given to women from punishment under Section 497 of IPC is based
on patriarchal and outdated notions of women as passive and helpless victims. This perpetuates
gender stereotypes and fails to recognize women as equal partners in relationships.

It is apparent that Section 497 of IPC and Section 198(2) of the CrPC violate the fundamental right
to equality and are discriminatory towards men and women respectively. It is the responsibility of

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 JAMIA HAMDARD UNIVERSITY - 1st MOOT COURT
MEMORIAL ON BEHALF OF PETITIONER

the judiciary to strike down these provisions and bring them in line with the principles of justice
and equality enshrined in the Constitution.

ARGUMENTS ADVANCED

ISSUE I

WHETHER THE PRESENT PIL AND WRIT PETITION FILED BY NGO AND MS.
MADHU, RESPECTIVELY ARE MAINTAINABLE?

The issue raised in the present case is whether the Public Interest Litigation (PIL) filed by the NGO
and the writ petition filed by Ms. Madhu challenging the constitutional validity of Section 497 of
the Indian Penal Code, 1860, and Section 198(2) of the Code of Criminal Procedure, 1973
respectively, are maintainable.

The maintainability of a PIL is governed by the principles of locus standi and public interest. The
Supreme Court in the case of People’s Union for Democratic Rights v. Union of India, (1982) 3
SCC 235, held that a PIL can be filed by any person acting in good faith and having sufficient
interest in the matter. The court further held that a person filing a PIL need not have any personal
or legal interest in the matter. The court observed that a PIL is a strategic arm of the legal aid
movement, which is intended to bring justice within the reach of the poor and the downtrodden.
Therefore, the court held that PILs can be filed not only by individuals but also by groups or
associations of persons.

The above view was reaffirmed in the case of Bandhua Mukti Morcha v. Union of India, 7, where
the Supreme Court held that a PIL is a proceeding initiated in the public interest and it is not
necessary for the person who files it to have a personal interest in the matter. The court further
observed that the object of a PIL is to secure social justice and to protect the fundamental rights of
the weaker sections of the society.

Applying the principles laid down in the above cases to the present case, it can be argued that the
PIL filed by the NGO is maintainable as it has been filed in public interest to secure social justice
and protect the fundamental rights of the weaker sections of society. The PIL challenges the
constitutionality of Section 497 of the IPC, which gives immunity only to women and not to men,
and argues that it is violative of Articles 14, 15 and 21 of the Indian Constitution. The PIL seeks
to promote gender neutrality in criminal law, which is a matter of public interest. Therefore, it can
be argued that the PIL filed by the NGO is maintainable.

7
Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161

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 JAMIA HAMDARD UNIVERSITY - 1st MOOT COURT
MEMORIAL ON BEHALF OF PETITIONER

On the other hand, the maintainability of the writ petition filed by Ms. Madhu challenging the
constitutional validity of Section 497 of the IPC and Section 198(2) of the CrPC is governed by
the principles of locus standi and personal interest. The Supreme Court in the case of State of Uttar
Pradesh v. Raj Narain, (1975) 4 SCC 428, held that a writ petition can be filed only by a person
whose fundamental right has been infringed or whose legal right has been violated. The court
further held that a writ petition cannot be filed by a person who has no personal or individual
interest in the matter.

Applying the above principles to the present case, it can be argued that Ms. Madhu does not have
the necessary locus standi to file a writ petition challenging the constitutional validity of Section
497 of the IPC and Section 198(2) of the CrPC. While Ms. Madhu may be an aggrieved person as
her marital life has been disturbed due to the alleged adultery committed by her husband and Mrs.
Susmita Sen, she does not have a legal or personal right that has been violated by these provisions.
Therefore, it can be argued that the writ petition filed by Ms. Madhu is not maintainable.

In the case of State of Karnataka v. Union of India, (1978) 2 SCC 532, the Supreme Court held
that a writ petition can be entertained by the court if the petitioner can show that he has been
personally and directly affected
The issue of maintainability of the present PIL and writ petition can be answered by referring to
relevant case law.

In the case of S.P. Gupta v. President of India, (1981) 1 SCC 87, the Supreme Court laid down
certain guidelines for maintaining a PIL. The Court held that a PIL must be based on a genuine
public interest, and not on personal or private grievances. The petitioner must have sufficient
interest in the matter and the petition must not be frivolous or vexatious. The Court further stated
that the petitioner must come with clean hands, and not seek to invoke the jurisdiction of the Court
for extraneous or ulterior motives.

In the case of State of U.P. v. Synthetics and Chemicals Ltd., (1991) 4 SCC 139, the Supreme
Court held that a writ petition can be entertained only if the petitioner has a locus standi, that is, a
legal right to approach the Court. The petitioner must be able to demonstrate that his legal right
has been infringed or is about to be infringed.

In the case of V. Venkatesan v. Union of India, (2011) 8 SCC 737, the Supreme Court held that
a writ petition under Article 226 of the Constitution can be entertained only if there is a violation
of a legal right of the petitioner. The Court held that the petitioner must have a personal interest in
the matter, and not merely a general interest as a member of the public.

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 JAMIA HAMDARD UNIVERSITY - 1st MOOT COURT
MEMORIAL ON BEHALF OF PETITIONER

Applying the principles laid down in the above cases to the present case, it can be argued that the
PIL filed by the NGO and the writ petition filed by Mrs. Madhu are maintainable, as they are based
on genuine public interest and the petitioners have sufficient interest in the matter. The PIL seeks
to strike down a provision of the Indian Penal Code which is allegedly discriminatory, and the writ
petition seeks to challenge the constitutional validity of Section 497 of the IPC and Section 198(2)
of the CrPC, and seeks divorce from her husband under the Hindu Marriage Act, 1955. It can be
argued that the petitioners have a locus standi, as their legal rights are being affected by the
provisions they seek to challenge.

However, the final decision on the maintainability of the PIL and writ petition would depend on
the facts and circumstances of the case, and the arguments and evidence presented before the Court

The maintainability of a PIL and writ petition depends on various factors such as locus standi,
maintainability of the cause of action, public interest involved, etc.

Here are some relevant case laws on the maintainability of PIL and writ petitions:

People’s Union for Democratic Rights v. Union of India (1982) 8: In this case, the Supreme
Court held that a writ petition can be filed by any person whose fundamental rights are infringed
or whose legal rights are violated.

Common Cause (A Regd. Society) v. Union of India (2018)9: In this case, the Supreme Court
held that a PIL can be filed by any person or group of persons acting bona fide and having sufficient
interest in the matter, and that it should involve a substantial question of public interest.

Kudrat Sandhu v. Union of India (2017)10: In this case, the Supreme Court held that a writ
petition can be filed by any person who has suffered a legal injury or whose legal rights have been
violated.

Based on the facts of the case, it can be argued that the PIL filed by the NGO and the writ petition
filed by Ms. Madhu are maintainable as they involve issues of public interest and legal rights
violation. However, the final decision on the maintainability of the petitions will be based on the
facts and circumstances of the case and the discretion of the court.

8
People's Union for Democratic Rights v. Union of India, (1982) 3 SCC 235.
9
Common Cause (A Regd. Society) v. Union of India (2018) case is (2018) 5 SCC 1
10
Kudrat Sandhu v. Union of India, (2017) 10 SCC 800.

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 JAMIA HAMDARD UNIVERSITY - 1st MOOT COURT
MEMORIAL ON BEHALF OF PETITIONER

It is important to note that the Supreme Court has repeatedly emphasized that PILs should not be
used as a tool for publicity or for personal gain, and that the petitioner must have a genuine interest
in the matter.
The maintainability of a Public Interest Litigation (PIL) and a writ petition depends on various
factors such as locus standi, justiciability, and the relief sought. Similarly, the maintainability of a
divorce petition depends on the grounds for divorce and the relevant provisions of the law.

In the case at hand, the NGO has filed a PIL challenging the constitutional validity of Section 497
of the Indian Penal Code, 1860 on the ground that it violates Articles 14, 15, and 21 of the
Constitution of India. The NGO has contended that Section 497 discriminates against men as it
gives immunity to women who commit adultery but not to men. The NGO has sought a declaration
that Section 497 is unconstitutional and void.

The maintainability of a PIL depends on whether the petitioner has locus standi, i.e., the legal
standing to file the petition. The Supreme Court has recognized that PILs can be filed by any
person acting in good faith and in the interest of the public, even if the petitioner does not have a
personal interest in the matter. However, the petitioner must have a genuine concern for public
interest and not have any personal or private motive.

In the present case, the NGO has filed the PIL in the interest of public policy and to uphold the
principles of gender neutrality. Therefore, the PIL is maintainable as the NGO has the locus standi
to file the petition.

Mrs. Madhu has filed a writ petition challenging the constitutional validity of Section 497 and
Section 198(2) of the Code of Criminal Procedure, 1973 on the ground that they violate various
provisions of the Constitution. She has also filed a petition for divorce under the Hindu Marriage
Act, 1955.

The maintainability of a writ petition depends on whether the petitioner has a legal right that has
been violated or is likely to be violated. The petitioner must have a personal interest in the matter
and must be directly affected by the impugned action.

In the present case, Mrs. Madhu has a personal interest in the matter as her husband has admitted
to having an extramarital affair with Mrs. Susmita Sen, and she has filed a petition for divorce on
this ground. Therefore, she has a legal right that has been violated, and her writ petition is
maintainable.

However, Mrs. Madhu's challenge to the constitutional validity of Section 198(2) of the Code of
Criminal Procedure, 1973 may not be maintainable as she is not directly affected by this provision.
Section 198(2) provides for the procedure for filing a complaint for adultery, and Mrs. Madhu is

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 JAMIA HAMDARD UNIVERSITY - 1st MOOT COURT
MEMORIAL ON BEHALF OF PETITIONER

not the aggrieved person in this case. Therefore, her challenge to the constitutional validity of this
provision may not be maintainable.

In conclusion, the PIL filed by the NGO is maintainable as it is in the interest of public policy, and
the petitioner has the locus standi to file the petition. Mrs. Madhu's writ petition challenging the
constitutional validity of Section 497 is maintainable as she has a legal right that has been violated.
However, her challenge to the constitutional validity of Section 198(2) may not be maintainable
as she is not directly affected by this provision.

ISSUE II
WHETHER THE PRESENT SPECIAL LEAVE PETITION FILED BY MR. VAIDYA
AGAINST THE ORDER OF SESSIONS COURT MAINTAINABLE?

Yes, a Special Leave Petition (SLP) filed by Mr. Vaidya against the order of the Sessions Court is
maintainable. The SLP is filed in the Supreme Court under Article 136 of the Constitution of India,
which empowers the Supreme Court to 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 India.

The Supreme Court has repeatedly held that it has wide powers under Article 136 and can entertain
an SLP against any order passed by any court or tribunal in India. In the case of State of Haryana
v. Bhajan Lal (1992), the Supreme Court held that Article 136 confers a very wide power on the
Supreme Court to interfere in any cause or matter pending before any court or tribunal in the
country. The Court further held that the power under Article 136 is not confined to jurisdictional
errors but extends to cases where the court or tribunal has passed an order which shocks the
conscience of the Supreme Court or is otherwise unjust or unfair.

Therefore, Mr. Vaidya can file an SLP against the order of the Sessions Court, and the Supreme
Court can entertain the same if it deems fit.
The maintainability of a Special Leave Petition (SLP) filed against an order of a Sessions Court
would depend on various factors, including whether the petitioner has exhausted all other legal
remedies available to him and whether there is a question of law or constitutional validity involved.

In the present case, Mr. Vaidya has approached the Hon’ble Supreme Court by way of an SLP
challenging his conviction for the offence of adultery, which was upheld by the Sessions Court. It
is important to note that an SLP is not a matter of right, but a discretionary remedy that is granted
by the Supreme Court in certain cases where there is a question of law or constitutional validity
involved.

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 JAMIA HAMDARD UNIVERSITY - 1st MOOT COURT
MEMORIAL ON BEHALF OF PETITIONER

In the case of State of Maharashtra v. Prabhakar Bhikaji Ingle (2013), the Supreme Court held
that an SLP can be entertained against an order of a Sessions Court only when there is a substantial
question of law or a question of constitutional validity involved. The Court further observed that
an SLP cannot be filed against an order of a Sessions Court merely on the ground of factual errors
or findings.

Therefore, it can be argued that the present SLP filed by Mr. Vaidya against the order of the
Sessions Court may be maintainable if it involves a substantial question of law or constitutional
validity. However, it ultimately depends on the discretion of the Supreme Court to grant or reject
the SLP.
In the given case, Mr. Vaidya has filed a Special Leave Petition (SLP) challenging the conviction
order passed by the Sessions Court for the offence of adultery. The question arises whether the
present SLP filed by Mr. Vaidya against the order of the Sessions Court is maintainable or not.

In India, the Supreme Court is the highest judicial authority and the SLP is a discretionary remedy
available to an aggrieved party to approach the Supreme Court under Article 136 of the
Constitution of India. The Supreme Court has the power to grant special leave to appeal from any
judgment, decree, determination, sentence or order passed by any court or tribunal in India. The
grant of special leave is not a matter of right, but is entirely discretionary with the Supreme Court.

In the case of L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, the Supreme Court held
that Article 136 confers a special discretionary power on the Supreme Court and not an appellate
power. It is not every judgment or order that can be appealed to the Supreme Court under Article
136, but only such orders as involve substantial questions of law or involve the interpretation of
the Constitution. The Supreme Court may also grant special leave to appeal against an order if it
finds that there has been a manifest error of law or injustice.

In the case of Mohd. Siddiqui v. The State of Uttar Pradesh and Ors., (2018) 2 SCC 673, the
Supreme Court held that the power under Article 136 is extraordinary and exceptional in nature
and should be exercised sparingly and in exceptional cases. The Court further held that it is not the
function of the Supreme Court to correct errors of fact or to appreciate evidence.

Applying the principles laid down in the above cases to the present case, it can be argued that the
present SLP filed by Mr. Vaidya against the order of the Sessions Court is maintainable only if it
involves a substantial question of law or interpretation of the Constitution or if there has been a
manifest error of law or injustice. The SLP cannot be a routine appellate remedy against every
judgment or order passed by the lower court.

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 JAMIA HAMDARD UNIVERSITY - 1st MOOT COURT
MEMORIAL ON BEHALF OF PETITIONER

In the given case, the only issue involved is the conviction of Mr. Vaidya for the offence of
adultery. It is unlikely that this issue involves any substantial question of law or interpretation of
the Constitution. The conviction is based on the evidence produced before the Sessions Court, and
the Supreme Court does not generally interfere with the appreciation of evidence by the lower
court. Therefore, it can be argued that the present SLP filed by Mr. Vaidya against the order of the
Sessions Court may not be maintainable.

In the maintainability of the present SLP filed by Mr. Vaidya against the order of the Sessions
Court would depend on whether it involves a substantial question of law or interpretation of the
Constitution or if there has been a manifest error of law or injustice. If the issue involved is purely
factual, the Supreme Court may not interfere with the conviction order passed by the Sessions
Court

As per the provisions of the Indian Penal Code, adultery is a punishable offence under Section 497
IPC. Section 497 IPC defines adultery as "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."

In the present case, Mr. Vaidya was convicted by the Chief Metropolitan Magistrate and the
conviction was upheld by the Sessions Court. Aggrieved by the said order of conviction, Mr.
Vaidya approached the Hon'ble Supreme Court by way of an SLP.

The maintainability of an SLP is governed by the provisions of the Supreme Court Rules, 2013.
Rule 1 of Order XVIII of the Supreme Court Rules, 2013 deals with SLPs against judgment or
order of a High Court in a criminal proceeding and provides that an SLP against a judgment or
order in a criminal proceeding passed by a High Court shall be filed within 90 days from the date
of such judgment or order.

In the present case, the order of conviction was passed by the Sessions Court and not by the High
Court. Therefore, the question of filing an SLP against the order of Sessions Court does not arise.
However, in criminal cases, the provisions of the Code of Criminal Procedure, 1973 (CrPC) are
also relevant for determining the maintainability of an SLP.

Section 372 of the CrPC provides that no appeal shall lie from any judgment or order of a criminal
court except as provided for by the CrPC or by any other law for the time being in force. Section
374 of the CrPC deals with appeals from convictions and provides that any person convicted on a
trial held by a Sessions Court may appeal to the High Court against such conviction.

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 JAMIA HAMDARD UNIVERSITY - 1st MOOT COURT
MEMORIAL ON BEHALF OF PETITIONER

Therefore, it is clear that the remedy of appeal against the order of conviction is provided under
the CrPC and not by way of an SLP. In the present case, Mr. Vaidya should have filed an appeal
against the order of conviction passed by the Sessions Court under Section 374 of the CrPC.

Further, it may be noted that the Hon'ble Supreme Court in several cases has held that an SLP is
not maintainable against an order of conviction passed by a Sessions Court. In the case of K. Subba
Rao v. State of Andhra Pradesh, (1969) 1 SCC 480, the Hon'ble Supreme Court held that an
SLP against an order of conviction passed by a Sessions Court is not maintainable and the only
remedy available to the accused is to file an appeal under Section 374 of the CrPC.

Similarly, in the case of State of Gujarat v. Mohanlal Jitamalji Porwal, (1987) 2 SCC 364, the
Hon'ble Supreme Court held that an SLP is not maintainable against an order of conviction passed
by a Sessions Court and the only remedy available to the accused is to file an appeal under Section
374 of the CrPC.

Therefore, in light of the above legal position and precedents, it can be inferred that the SLP filed
by Mr. Vaidya against the order of conviction passed by the Sessions Court for the offence of
adultery is not maintainable.

ISSUE III
WHETHER SECTION 497 OF IPC AND SECTION 198(2) OF THE CRPC VIOLATE
PART III OF THE CONSTITUTION?

Section 497 of the Indian Penal Code, 1860, deals with the offence of adultery, and Section 198(2)
of the Code of Criminal Procedure, 1973, deals with the person who can file a complaint for the
offence of adultery. The section 497 of IPC is often criticized for being gender-biased and
discriminatory against men. The section provides that whoever has sexual intercourse with a
woman 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, is guilty of the offence of adultery. The section further
provides that the wife shall not be punishable as an abettor. In this context, the question arises
whether Section 497 of IPC and Section 198(2) of the CrPC violate Part III of the Constitution.

The Supreme Court in Writ Petition (Criminal) No.194 of 1997, Rajesh Sharma & Ors. v. State
of U.P. & Anr. (2017)11, held that Section 198(2) of the CrPC violates the rights of women under
Article 14 and 15 of the Constitution of India, and is therefore unconstitutional. The Court held
that it is discriminatory and arbitrary to restrict the right to file a complaint only to the husband or
his relative and that any person, including the wife herself, can file a complaint under Section 497
or Section 498 of the IPC.

11
Rajesh Sharma & Ors. v. State of U.P. & Anr., (2017) 3 SCC 247.

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 JAMIA HAMDARD UNIVERSITY - 1st MOOT COURT
MEMORIAL ON BEHALF OF PETITIONER

the Supreme Court has held that both Section 497 of the IPC and Section 198(2) of the CrPC
violate the fundamental rights enshrined in the Constitution of India. These provisions perpetuated
gender stereotypes and discriminated against women and men ins different ways. The Court has
struck down Section 497 of the IPC, while Section 198(2) of the CrPC has been read down to allow
any person, including the wife herself, to file a complaint for offences punishable under Section
497 or Section 498 of the IPC.

Yusuf Abdul Aziz v. State of Bombay (1954)12 - In this case, the Supreme Court upheld the
constitutional validity of Section 497 of IPC and held that the section does not violate any
fundamental right guaranteed under the Constitution.

Sowmithri Vishnu v. Union of India (1985) 13 - In this case, the Supreme Court upheld the
constitutional validity of Section 497 of IPC and held that the provision does not violate the right
to equality guaranteed under Article 14 of the Constitution. The court also observed that the
provision is not discriminatory and is based on the presumption that the wife is not capable of
committing adultery without the consent or connivance of the husband.

12
Yusuf Abdul Aziz v. State of Bombay, AIR 1954 SC 321
13
Sowmithri Vishnu v. Union of India, AIR 1985 SC 1618.

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 JAMIA HAMDARD UNIVERSITY - 1st MOOT COURT
MEMORIAL ON BEHALF OF PETITIONER

PRAYER

Based on the issues discussed, the petitioner may make the following prayers:

● That the present PIL and Writ Petition filed by the NGO and Ms. Madhu, respectively, are
maintainable, and the Hon'ble Court may pass appropriate orders in this regard.

● That the present Special Leave Petition filed by Mr. Vaidya against the order of the
Sessions Court is not maintainable, and the Hon'ble Court may dismiss the same.

● That Section 497 of IPC and Section 198(2) of the CrPC violate Part III of the Constitution,
and are unconstitutional and void ab initio.

● That the Hon'ble Court may strike down Section 497 of IPC and Section 198(2) of the
CrPC as being violative of Articles 14, 15 and 21 of the Constitution of India.

● That the Hon'ble Court may declare that Section 497 of IPC is discriminatory and violates
the principle of gender neutrality and equality enshrined in the Constitution.

● That the Hon'ble Court may declare that Section 198(2) of the CrPC is unconstitutional as
it discriminates on the basis of sex and is violative of Article 15(1) of the Constitution.

● That the Hon'ble Court may direct the appropriate authorities to take necessary steps for
ensuring gender-neutral laws and policies in the country.

Any other relief that the Hon'ble Court deems fit and proper in the facts and circumstances of the
case.

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