PRIST (DEEMED TO BE) UNIVERSITY

BEFORE THE HON’BLE SUPREME COURT OF INDIA, NEW DELHI

(Under Article 32 in the matter of)

MR. VAIDHYA & OTHERS ….APPELLANT(S)

VERSUS

MRS. MADHU .…RESPONDENT

SPECIAL LEAVE JURISDICTION OF SUPREME COURT UNDER ARTICLE 136(1)

OF THE INDIAN CONSTITUTUTION

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 TABLE OF CONTENTS

TITLES PAGE NO.S

LIST OF ABBREVIATIONS PAGE NO. – 3-4

INDEX OF AUTHORITIES & PAGE NO. - 5-6

BOOKS & WEBSITES

STATEMENT OF THE JURISDICTION PAGE NO. – 7

STATEMENT OF FACTS PAGE NO. – 8

ISSUED RAISED PAGE NO. – 9

SUMMARY OF ARGUMENTS PAGE NO. - 10-11

ARGUMENTS ADVANCED PAGE NO. – 12-17

PRAYER PAGE NO. – 18

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 LIST OF ABBREVIATIONS

AIR All India Reporter

CrLJ Criminal Law Journal
SC Supreme Court
SCC Supreme Court Cases
IPC Indian Penal Code
HMA Hindu Marriage Act
Crl. Criminal
A.P. Andhra Pradesh
Guj. Gujarat
Hon’ble Honorable
Art. Article
Sec. Section
SLP Special Leave Petition
Cal. Calcutta
OLR Orissa Law Reviews
U.O.I Union of India

RCR Restitution of Conjugal Rights

SCALES Supreme Court Advancing legal education
for students
MLJ Madras Law Journal
HP Himachal Pradesh
SCR Supreme Court Reports
Mad. Madras
FB Federal Bureau
VS. VERSUS
Commr. Commissioner
AC Appeal cases
Vol. Volume

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JT Jury trial
Ltd. Limited
Anr. Another
ALL ER All England Law Reports
& And

INDEX OF AUTHORITIES
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 1. Rupa Ashok Hurra v. Ashok Hurra, JT (2002)3 SC 609: (2002) 4 SCC 388
2. Hoystead vs. Commr. of taxation,(1926) AC 155
3. Chandra Kanta vs. Sheik Habib, AIR 1975 SC 1500
4. Manganese Ore India Ltd. VS. The Regional Assistant Commissioner of Sales Tax,
Jabalpur,(1976)4 SCC124
5. R. VS. R. (1991)4 ALL ER 481; at p.484
6. Joseph Shine vs Union of India, 2018 SC 1676
7. James Sibongo v. Lister Lutombi Chaka and Anr.,2016 CASE NO. SA77-14,
8. K.S. Puttuswamy and anr. Vs. U.O.I,2017 SC

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 INDEX OF BOOKS

1. SN MISRA – THE INDIAN PENAL CODE,1860

2. J.N. PANDEY – THE CONSTITUTION OF INDIA,1950
3. PARAS DIWAN – MODERN HINDU LAW
4. RATANLAL AND DHIRAJLAL – THE INDIAN PENAL CODE,1860
5. BATUK LAL – THE INDIAN PENAL CODE,1860
6. SC TRIPATHI AND VIBHA ARORA – WOMEN AND CHILDREN LAW
7. KRISHNA PAL MALIK – WOMEN AND LAW
8. MAMTA RAO—LAW RELATING TO WOMEN AND CHILDREN
9. N.V. PARANJAPE—STUDIES IN JURISPRUDENCE AND LEGAL THEORY
10. K.A. PANDEY—INDIAN PENAL CODE,1860

INDEX OF WEBSITES

 Lawoctopus.com
 Lawcorner.in
 Lawcirca.com
 Lawtimesjournal.in
 Lawlex.org
 Indiankanoon.org
 Legalserviceinindia.com
 LexisNexis
 SCC Online
 Scholar.google.co.in

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 STATEMENT OF JURISDICTION

The Appellant in the present case has approached the Hon’ble Supreme Court of India to initiate the
present appeal under Article 136 of the Constitution of India. The respondent most humbly and
respectfully submits to the Jurisdiction of the Hon’ble Court in the present matter.

Article 136(1) of The Constitution of India which reads as follows:-

Article 136: Special Leave to appeal by the Supreme Court

(1) Notwithstanding anything in this chapter, the Supreme
Court may, in its discretion, grant Special Leave to
Appeal from any judgment, decree, determination,
sentence or order in any cause or matter passed or made
by any Court or Tribunal in the Territory of India.

STATEMENT OF FACTS

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 1. Mr. Rahul Sen and Mrs. Susmitha Sen were married in 2017 and were residents of
Kolkata in the state of West Bengal as they were working there in US based Multi
National Company.
2. After 3 years of their happy marital life, Mrs. Susmitha Sen became aware that she
cannot give birth to a healthy child.
3. She came to know about this fact by reading medical report kept secretly by her
husband.
4. As per that report he suffered from some serious congenital medical problem that
may pass on to their child.
5. Then they had quite a big fight in this regard that he never her told about his health
problem either prior to her marriage or thereafter but kept the information
secretly.
6. She remained in her in-laws house under their care as her husband went for
employment training program to Pune for 2 months.
7. After some time Mr. Rahul learned that his wife, desirous of having a healthy child,
developed an extra marital relationships with her office colleague, Mr. Vaidya, he
did not object to the same.
8. Mr. Vaidya however, confessed to his wife that he had illicit relationship with Mrs.
Susmitha.
9. Mrs. Madhu wife of Mr. Vaidya, furious about the matter, filed a complaint against
her husband as, “main accused”.
10. Mrs. Susmitha Sen as “second accused”.
11. Mr. Rahul Sen as “an abettor”, as he through his silence and acquiescence
facilitated, rather, to put it bluntly, encouraged Mrs. Susmitha Sen and Mr. Vaidya
to indulge in “Adultery”.
12. Mrs. Madhu subsequently pleaded that she shall be recognised as an “aggrieved
person” as her matrimonial life had been disturbed with these developments.
13. Mrs. Madhu also impleaded herself challenging the constitutional validity of Section
497 in the Supreme Court, as it grants total immunity to both the adulterer and
adulteress which destroys the institution of marriage and the moral principles for
remaining in a married life without a suitable sanctions for abiding by the same.
14. Mrs. Madhu filed a petition for Divorce in the Family Court from her husband
under the Hindu Marriage Act, 1955 which is pending before the Hon’ble Court.
15. Mr. Rahul Sen also applied for a divorce from his wife under the Hindu Marriage
Act, 1955.
16. Mr. Rahul Sen and Mrs. Madhu moved a joint application for compounding of
offence under the Code of Criminal Procedure, 1973.

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 17. The High Court quashed the criminal proceedings against all the accused persons
declaring that section 497 does not violate any provision.

CONTENTIONS RAISED

CONTENTION- I

Is the said Special Leave Petition maintainable in the Hon’ble Supreme Court by the virtue of
Article 136(1) of the Constitution of India, 1950?

CONTENTION -II

Challenging the Validity of Section- 497 of The Indian Penal Code, 1860 is baseless while
considering the nature of Adultery as a crime & Moral obligation of the spouse as in against the
laws of nature is baseless in the eyes as of law as the finality of judgements must be promoted at
all instances.

CONTENTION- III

Whether section-497 of the Indian Penal Code, 1860 protects the sanctity of marriage?

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 SUMMARY OF ARGUMENTS

CONTENTION- 1

Is the said Special Leave Petition maintainable in the Hon’ble Supreme Court by the virtue
of Article 136(1) of the Constitution of India, 1950?

It is humbly submitted in the Hon’ble Supreme Court that the appeal filed by the
appellant/petitioner under Article 136(1) of the Constitution of India is not maintainable. The
SLP involved in this the case Ashok Hurra v. Ashok Hurrah was made to be filed only subject
matter of the fulfillment of the grounds specifically stated. Whereas, the filed petition does not
fulfill the same as the discrening judgment of the Hon’ble court to striking down the provisions
was rational and embody no error on any part of Law or Fact. The SLP observes strict procedural
precautions because the mater relates to re-examination of order made by this court which is not
to be taken lightly.

CONTENTION-2

Challenging the Validity of Section- 497 of The Indian Penal Code, 1860 is baseless while
considering the nature of Adultery as a crime & Moral obligation of the spouse as in
against the laws of nature is baseless in the eyes as of law as the finality of judgements must
be promoted at all instances.

It is humbly submitted in front of the Hon’ble bench that the counsel on behalf of the respondent
deems Section-497 of the Indian Penal Code, 1860 valid as it does not hurts the sanctity of the
laws of nature. The counsel on behalf of the Respondent considers the act of adultery as not a
Crime but a very personal affair of a married couple. The Counsel on behalf of the Respondents
deems it is not necessary for a clear portrayal of the criminalization of the stated section as a
Crime and doing the same would hurt the reputation of both, the husband and the wife.
Decriminalizing the act of adultery & considering it a civil wrong by the hon’ble SC was an
exceptional move from the Court to protect the interests and reputations of the parties involved.
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CONTENTION - 3

Whether section-497 of the Indian Penal Code, 1860 protects the sanctity of marriage?

It is humbly submitted before this hon’ble court that the said provision does not protect the
sanctity of marriage but treats women as property of husband and undermines the status of
women in marriage. It treats women as property of her husband by making a third party liable for
encroachment into marriage leaving the fact that it is a consensual sexual act between the man
and women, which further implies lack of women’s right and capability of taking her own
decisions. The said provision in no way protects the sanctity of marriage, as the sanctity of
marriage is not offended only by sexual acts of wife outside marriage but also by man doing the
same act with an unmarried women or widow. Section 497, I.P.C. puts women in a state of
marital subordination to man entitled to control over her body as consent of husband to the
sexual act of women would not render it as a crime, which further badly destroys women’s
dignity.

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 ARGUMENTS ADVANCED

CONTENTION -1

1.1 `It is humbly submitted before this Hon’ble Supreme Court of India that the present
petition is not maintainable on the ground of being frivolous, groundless, objectionable,
and absurd. It can be inferred from the above that petition under Article 136(1) is for
rarest of rare cases, meritorious cases will invoke the inherent jurisdiction and only such
matters will be entertained where the judgment genuinely suffers from any miscarriage of
justice.

THE DOCTRINE OF FINALITY OF JUDGMENT MUST BE RESPECTED

1.2 “Interest republicae ut sit finis litium” elucidates that it is for the public good that there
must be an end of litigation after a long hierarchy of appeal. Certainty and continuity are
essential ingredients of rule of law. In the case, Hoystead vs. Commr. Of taxation1,
Certainty in the law would be considerably eroded and suffer a serious setback if the
highest court of the land readily overrule the views expressed by it in earlier cases even
though those views had held the field for a number of years. In Chandra Kanta vs.
Sheik Habib2, A departure from the principle of finality can only be justified in
circumstances of a substantial and compelling character makes it necessary to do so.

1.3 It is rare that in an adversarial system, despite the judges of the highest court doing their
best, one or more parties may remain unsatisfied with the most correct decision. Opening
door for a further appeal could be opening a flood gate which will cause more wrongs in
the society at large at the cost of rights.

1. (1926) AC 155
2. AIR 1975 SC 1500

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 Manganese Ore India Ltd. VS. The Regional Assistant Commissioner of Sales Tax,
Jabalpur3, and Court held that the doctrine of stare decisis is a very valuable principle of
precedent which cannot be departed from unless there are extraordinary or special
reasons to do so.

1.4 Thus, permitting the parties to reopen the concluded judgements of court by filing
repeated appeals is clearly an abuse of the process of law and would have far reaching
adverse impact on the administration of justice.

1.5 However, in the present case no such strong ground exists for entertaining the above
petition filed by appellants. Thus the court has rightly struck down 158 years old adultery
law. Any provision of law affecting individual dignity and equality of women invites
wrath of constitution.

CONTENTION -2

2.1 It is humbly submitted in front of the Hon’ble bench that the counsel on behalf of the
Respondent deems Section-497 of the Indian Penal Code, 1860 valid as it does not hurts
the sanctity of the laws of nature. The counsel on behalf of the Respondent does not
consider the act of adultery as a Crime.

A matter of choice

2.2 Two individuals may part if one cheats, but to attach criminality to infidelity is going too
far. Besides, there is no data to back claims that abolition of adultery as a crime would
result in “chaos in sexual morality” or an increase of divorce.

2.3 How married couples deal with adultery is “absolutely a matter of privacy at its
pinnacle”, Loss of moral commitment in a marriage creates a dent in the relationship, but
it is left to each individual to deal with the problem — some may forgive while others
may seek divorce. Punishing each other or the wife’s lover is unlikely to re-kindle
commitment.

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 3. (1976)4 SCC124

2.4 The time when wives were invisible to the law, and lived in the shadows of their
husband, has long since gone, because it is a private matter in which court should not
interfere. There is sexual autonomy to every individual and hindering the same would
violate the constitutional principles. Section 497 of IPC struck down and adultery can be
grounds for any civil wrong including dissolution of marriage.

2.5 Consensual sexual relationships between two adults, even if married to other people, will
no longer be a crime. Adultery will however be considered valid grounds for divorce.
Adultery may be committed by two consenting adults making it a victimless crime.

2.6 The institution of marriage cannot be more important than the individuals who are part of
it. A marriage preserved by force at the cost of the individuals’ happiness is exploitative,
unhealthy, and can in no way contribute positively to society. Adultery might not be the
cause of an unhappy marriage; it could be the result of an unhappy marriage and that
making it a crime would mean punishing unhappy people.

Adultery no longer a criminal offence

2.7 A crime is something which is committed on the society as whole, while adultery is more
of personal issue. Adultery does not fit into the concept of crime as would otherwise
invade the extreme privacy sphere of a marriage. However, it continue to stand as a civil
wrong and a ground for divorce, what happens after adultery is committed should be left
to the husband and wife to decide as it is something that would involve personal
discretion. Hence, declaring adultery as a crime somehow creeps injustice into the
system.

2.8 In K.S. Puttuswamy and anr. Vs. U.O.I4, Apex Court declares that right to privacy is a
fundamental right as prescribed under Article 21 of the constitution. The court has
recognized the conceptual dignity and equality of woman, which cannot be curtailed.

4. 2017 SC

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CONTENTION -3

3.1 It is humbly submitted before this hon’ble court that the said provision does not protect
the sanctity of marriage and instead treats women as property of husband and undermines
the status of women in marriage.

SEC. 497 I.P.C. GRANTS THE PROPRIETARY INTEREST TO HUSBAND OVER HIS WIFE

3.2 It is submitted that the provision treats a married woman as a property of the husband. This
provision was drafted by Macaulay based on an erroneous presumption that women are the
property of the men and the husband had the sole right over the body of his wife.

3.3 This is evidenced by the fact that if the adultery is engaged with the consent of the husband of the
woman then, such act ceases to be an offence. So, the idea was not to criminalize physical
relations outside marriage but rather to put a bar on any infidelity by the wife without the consent
of her “owner”. In Case: R. VS. R.5, Moreover, it uses the same analogy that is used for the
offence of trespass. There is no doubt then that this Section treats a woman like a man’s chattel.

3.4 The way a person is not expected to enter on the property of the other without his consent,
another man is not expected to have sexual intercourse with someone’s wife without his consent.
Adultery therefore is not an offence against the matrimonial home but against the husband
himself.

NOTION OF MARITAL SUBORDINATION DENYING SEXUAL AGENCY OF WIFE IS NOT

RELEVANT IN CONTEMPORARY SOCIETY

3.5 From the historical perspective marriage had been considered a sacrament however, in the
modern perspective, the marriage is held to be a contract as it now, can be dissolved and requires
consent of parties. In the eyes of law, as marriage is a civil contract, the consensual sexual
relation of one spouse outside marriage should at best be a violation of that contract that is, it can
be a civil offence but, not a criminal offence.

3.6 Sec. 497 disregards the sexual autonomy which every woman possesses as a necessary condition
of her existence. Implicit in seeking to privilege the fidelity of women in a marriage is the
assumption that a woman contracts away her sexual agency when entering a marriage. Far from
being an equal partner in an equal relationship, she is subjugated entirely to the will of her
spouse. Sec. 497 is based on the understanding that marriage submerges the identity of the
woman, based on a notion of marital subordination.

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 5. (1991)4 ALL ER 481; at p.484

3.7 Joseph Shine vs. U.O.I.6, the effect of Sec. 497 is to allow the sexual agency of a married
woman to be wholly dependent on the consent or connivance of her husband. Sexual autonomy
constitutes an inviolable core of the dignity of every individual. Sexuality cannot be dis-
associated from the human personality. For, to be human involves the ability to fulfill sexual
desires in the pursuit of happiness. Autonomy in matters of sexuality is thus intrinsic to a
dignified human existence. Human dignity both recognizes and protects the autonomy of the
individual in making sexual choices. Women does not pledge her sexual autonomy to her
husband after marriage and depriving her of choice to have consensual sex with anyone outside
marriage cannot be curbed.

3.8 Thus, a woman's 'purity' and a man's marital 'entitlement' to her exclusive sexual possession may
be reflective of the antiquated social and sexual mores of the nineteenth century, but is not
relevant to the contemporary perspective where men and women in marriage are conferred equal
rights and liabilities. Sec. 497 is thus founded on the notion that a woman by entering upon
marriage loses, so to speak, her voice, autonomy and agency. Manifest arbitrariness is writ large
on the provision. Such a notion has no place in the constitutional order.

PENALIZING ADULTERY DOES NOT FUNCTION AS A DETERRENCE

3.9 It is submitted that Adultery is not the cause but the consequence of a pre-existing disruption of
the marital tie. In such a situation, Penalizing adultery doesn’t serve as deterrence but a final nail
in the coffin.

3.10 In James Sibongo v. Lister Lutombi Chaka and Anr.7, the Supreme Court of Namibia, in an
instructive judgment decriminalising adultery, went into whether the criminal offence of adultery
would protect marriages and reduce the incidence of adultery.

It said: “But does the action protect marriages from adultery? The question becomes more
focused when the spotlight is directed at the following considerations:

(a) If the parties to the marriage have lost that moral commitment, the marriage will fail, and
punishment meted out to a third party is unlikely to change that.
(b) Every so often it happens without any premeditation, when deterrence hardly plays a role.
At the other end of the scale, the adultery is sometimes carefully planned and the
participants are confident that it will not be discovered. Moreover, romantic involvement
between one of the spouses and a third party can be as devastating to the marital
relationship as (or even more so than) sexual intercourse.

6. 2018 SCC: SC 1676

7. 2016 CASE NO. SA77-14,
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 (c) If deterrence is the main purpose, one would have thought that this could better be
achieved by retaining the imposition of criminal sanctions or by the grant of an interdict
in favour of the innocent spouse against both the guilty spouse and the third party to
prevent future acts of adultery…firstly, that an interdict against the guilty spouse is not
possible because he or she commits no delict. Secondly, that as against a third party — ‘it
interferes with, and restricts the rights and freedom that the third party ordinarily has of
using and disposing of his body as he chooses; . . . it also affects the relationship of the
third party with the claimant's spouse, who is and cannot be a party to the interdict, and
therefore indirectly interferes with, and restricts her rights and freedom of, using and
disposing of her body as she chooses‘.
(d) Quite frequently adultery is found to be the result and not the cause of an unhappy marital
relationship. Conversely stated, a marriage in which the spouses are living in harmony is
hardly likely to be broken up by a third party.”

3.11 Adultery is a consequence of the collapse of faith and conscience in a relationship and requires
corrective action rather than penalize. The sanctions imposed by the laws can bring relief to the
injured party for a short time, but destroys the sanctity of marriage and family life in the long
term ruins.

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 PRAYER

WHEREFORE IN THE LIGHT OF THE CONTENTIONS RAISED, ARGUMENTS

ADVANCED AND AUTHORITIES CITED, IT IS HUMBLY PRAYED THAT THIS
HON’BLE COURT MAY BE PLEASED TO ADJUDGE AND DECLARE:

1. That the special leave petition filed by the Appellants is not maintainable in the Hon’ble Court.
2. The contentions raised by the appellants are not of public importance but of private hostility
against their spouses as a matter of revenge from the respondents by filing such devastating
allegations.
3. The court should quash the above stated special leave petition as it would be a sheer wastage of
the crucial time of the Hon’ble Court by imposing charges with the same.
.

AND/OR
Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience.

All of which is most humbly and respectfully submitted

Place: ……………………

Date: …………………….

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