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 PETITIONER DRWAN AND FILED BY THE COUNSELS FOR

THE PETITIONER.

Submitted by
Vaishnavi Dasari
Roll No - 184
 MEMORIAL ON BEHALF OF THE PETITIONER

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 PETITIONER

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

CONSTITUTION OF 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. Fertilizer Corporation Kamgar Union (Regd.), Sindri AIR 1981 SC 344

Anr V. Union of India
2. People's Union of Civil Liberties V. Union of India 1997 SCC 361
3. S.P. Gupta vs President Of India And Ors AIR 1982 SC 149
4. Prabodh Verma Vs. State of Uttar Pradesh AIR 1985 SC 167
5. Murali V. Returning Officer 2001 (1) KLT 854
6. W. Kalyani V. State (2012) 1 SCC 358
7. Anuj Garg & Ors vs Hotel Association Of India & Ors (2008) 3 SCS 1

8. Shayara Bano vs Union Of India And Ors (2017) 9 SCC1

9. K.S.Puttaswamy and Anr vs Union Of India and Ors (2017) 10 SCC1

10. Yusuf Abdul Aziz vs The State Of Bombay 1954 AIR 321
11. State Of M.P vs Madanlal (2015) 7 SCC 681
12. Roop Chand Adlakha And Ors vs Delhi Development 1989 AIR 307
Authority
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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

In February 2016, the Hon’ble President of India had called for a thorough revision
of the Indian Penal Code. Archaic provisions of the Code were sought to be removed and
“The IPC has undergone very few changes in the last one hundred fifty-five years. Very
few crimes have been added to the initial list of crimes and declared punishable. Even now,
there are offences in the Code which were enacted by the British to meet their colonial
needs. Yet, there are many new offences which have to be properly defined and
incorporated in the Code.” In view of the same, it is submitted that Section 497 is also an
outdated provision, in addition to being illegal and violative of fundamental rights.

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”.

The history of Section 497 reveals that the law on adultery was for the benefit of the
husband, for him to secure ownership over the sexuality of his wife. It was aimed at
preventing the woman from exercising her sexual agency. Thus, this section was never
conceived to benefit women. In fact, the provision is steeped in stereotypes about women
and their subordinate role in marriage. The patriarchal underpinnings of the law on adultery
become evident when the provision is considered as a whole. A person engaging in sexual
relations with the wife of another man won’t be charged for adultery if the husband of the
wife so involved gives his consent. This clearly indicates how women are objectified in the
hands of their husbands.
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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”

In October 2017, Joseph Shine, a non-resident Keralite has submitted this writ
petition in the nature of Public Interest Litigation, challenging the constitutionality of
Section 497 of Indian Penal Code to shield Indian Men from being punished for extra –
marital relationships by vengeful women or their husbands. Also challenging the
constitutionality of Section 198(2) of CrPC which denies the wife to prosecute her
adulterous husband, reserving this power only to the husband of the woman involved in
the relationship. So, in essence a woman can neither file a case of adultery nor can she be
prosecuted under one.
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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?
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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 before the Hon’ble Court that the present PIL is maintainable. It is
further submitted that since there has been gross violation of Article 14,15, and 21 of the Indian
constitution, the PIL is maintainable and on account of the same relief is sought. Article 32 provides
the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights
conferred by Part III of the Constitution. The right to access to the Supreme Court under Article 32 is
the Fundamental Right itself. It is contended that the petitioners have the locus standi, there is violation
of fundamental right, Supreme Court has the jurisdiction to hear the present case and alternative
remedy not a bar to maintainability.

Issue II : Whether Section 497 of IPC read with Section 198(2) of CrPC is unconstitutional?

It is humbly submitted before the Hon’ble Court that there has been gross violation of Article
14,15 and 21 of the Indian constitution. The Section is manifestly arbitrary as it treats women as
property of husband and creates unreasonable categorization between genders. The law intrudes in the
privacy of the individual and hurts the dignity of women by allowing her husband to control her sexual
activities. Also, there can’t be any segregation of valid provision from given provisions as it would
then lead to a residue having no practical application. Hence, it needs to be annulled as a whole owing
to doctrine of severability, which in this case is that if law be made gender neutral it would no longer
have any efficacy.

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 before this Hon’ble Court that the said provision of Section 497, I.P.C.
is violative of the fundamental rights guaranteed by the Constitution of India. The exemption granted
to women is based on the notion of women being the ‘victim’ and men the ‘seducer’ which is no longer
relevant or applicable in the contemporary societal aspect. Also, the provision by completely
exempting women from punishment under adultery as an abettor discriminates against men as it puts
both men and women under similar circumstances and fault on different pedestals. The Section is in
no way protected under Article 15 (3) of the Constitution of India which does not provides for
exemption of women from criminal liability on the baseless presumption of weak status.
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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?

The present petition is maintainable under Article 32 of the constitution of India, 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 the violation of fundamental rights. It is contended
that the petitioners have the locus standi [1.1], there is violation of fundamental right [1.2.], Supreme
Court has the jurisdiction to hear the present case [1.3.], alternative remedy not a bar to maintainability
[1.4.].

Dr. B.R.Ambedkar described Article 32 as the most important one, without which the
Constitution would be reduced to nullity. It is also referred to as the heart and soul of the Constitution.
By including Article 32 in the Fundamental Rights, the Supreme Court has been made the protector
and guarantor of these Rights.

1.1 That the petitioners have a locus standi.

1.1(1) “Locus standi” is the right of a party to appear and be heard on the question before any tribunal. It
means the legal capacity to invoke the jurisdiction of the court.

1.1(2) The SC has ruled that to exercise its jurisdiction under art 32, it is not necessary that the affected
person should personally approach the court. The court can itself take cognizance of the matter and
proceed suo motu or on a petition of any public spirited individual or body.

1.1(4) In landmark cases the SC has evolved a new rule viz., any member of the public, acting bona
fide and having sufficient interest can maintain an action for redressal of public wrong or public injury.
In S.P Gupta v. UOI the court observed that, “any member of the public having sufficient interest
 MEMORIAL ON BEHALF OF THE PETITIONER

can maintain an action for judicial redress for public injury arising from breach of public duty or from
violation of some provisions of the constitution or the law and seek enforcement of such public duty
and observance of such constitutional or legal provision”.

1.1(5) However, the member of the public should not be a mere busybody or a meddlesome interloper
but one who has sufficient interest in the proceeding. In the instant matter, the petitioner is a very close
friend of the victim and have sufficient interest.

1.1(6) Furthermore, even if the petitioner in fact moved to the Court in private interest and for the
redressal of his personal grievances, or to seek his personal revenge, Court can proceed to enquire the
state of affairs of the subject of the litigation in the interest of justice and in furtherance of justice.
Individual conduct of the party would not be of any relevance when the Court entertains PIL and
construed not only provisions of any statute but also had taken into consideration the subsequent
events. If the court finds the question raised to be of substantial public interest, the issue of locus
standi of the person placing the relevant facts and materials before the court becomes irrelevant.

Further under the well-established doctrine of Parens Patrae, it is the obligation of the state to protect
and take into custody of the rights and the privileges of its citizens for discharging its obligations.

It was made clear in Janata Dal v H.S. Chaudhary that only a person ‘acting bona fide’and ‘having
sufficient public interest’ in the proceeding of public interest litigation will have alone the locus
standi but not a person for personal gain or political motive or any oblique consideration.

The rule of locus standi have been relaxed and a person acting bonafide and having sufficient interest
in the proceeding of Public Interest Litigation will alone have a locus standi and can approach the court
to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for
personal gain or private profit or political motive or any oblique consideration.

Therefore, locus standi of the petitioners should not be in question.

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1.2 That the hon’ble supreme court of India has the jurisdiction to entertain the present PIL

1.2(1) The petitioner herein invokes the writ jurisdiction of the Hon’ble Supreme court of India under
Article 32 of the Indian constitution for issuance of an order, direction, writ in the nature of mandamus
or any other appropriate writ challenging the constitutional validity of section 497 of IPC which
describes and defines the adultery and the punishment for the offence. The petitioner herein also
challenge the constitutionality of section 198(2) of the code of criminal procedure 1973, which contains
procedure for prosecution of the offences under chapter XX of the IPC. Both these provisions are
apparently gender discriminatory and suffers from constitutional vices.

1.2(2) the credentials, motive and the object, of the petitioner is the protection of public interest. There
is neither civil, criminal no revenue litigation involving the petitioner which as or could have legal
nexus with the issues involved in the present public interest litigation. It is further submitted that there
is no adequate or efficacious alternative remedy available to the petitioner and thus this Public interest
litigation is filed.

1.2(3) Article 32 of the constitution of India provides remedies for enforcement of fundamental rights
guaranteed by part III of the constitution. Whenever there is a violation of fundamental rights, the
citizen can approach the Hon’ble Supreme Court or high court for enforcement of the same. The article
itself is a guarantor of fundamental rights and it is a fundamental right.

1.2(4). The implication of section 497 of IPC is that it punishes only men and not women even if the
women, the consenting party to the sexual intercourse outside the marriage prima facie, on a perusal
of this section it is found that the provision lacks gender neutral approach and is arbitrary. Section
198(2) of CrPC which prohibits the wife from filing a complaint fail the test of reasonable classification
under Article 14 of the constitution.

1.2(5) The adverse impact of section 497 of IPC Read with Section 198(2) of CrPC up on gender justice
is a great concern to be addressed and it is violative of the right of the citizen guaranteed under Article
14,15,and 21 of the constitution. Hence, the hon’ble supreme court has jurisdiction to entertain the
matter as there is gross violation of fundamental rights guaranteed under the constitution.

1.2(6) The petition herein prefers this petition in the nature of PIL and the same squarely falls within

.
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the ambit of the guidelines prescribed in the decision of the High Court in State of Uttaranchal
v.Balwant Singh Chantal and others. The petitioner has filed the PIL with the noble aim of ensuring
gender justice.

1.2(7) In fertilizer corporation Kamgar union V. Union of India and ors, it was observerd that the
maintainability of a Writ petition is co-relate to the existence and violation of fundamental rights.

1.2(8) Also in people union for civil liberties V. union of India, a public interest litigation, for the
protection of the right to privacy was entertained by the court the instance of a voluntary association.

1.2(9) A writ of mandamus is a judicial remedy in the form of an order from a court to any government,
subordinate court, corporation or public authority to do some specific act which that body is obliged
under the law to do which is in the nature of public duty and in certain cases one of a statutory duty.

1.2(10) In Prabodh verma V. Sate of UP, the apex court held that if the court finds that an act or
ordinance is unconstitutional or void, the court can declare the act or ordinance as unconstitutional and
issue a writ of mandamus to the government and its officers not to enforce the provisions of the Act or
Ordinance.

1.2(11) Further, in Murali V. Returning officer, the kerala High court held that, the legislature is not
a inferior court or tribunal, but it is a co-ordinate branch. The court is competent to examine the
constitutional validity of legislation and entitled to declare the legislation as ultra vires of the
constitution if it is found be offensive of Part III of the constitution. The court can issue a writ of
mandamus to the government not to enforce the unconstitutional legislation.

1.2(12) The purpose of this progressive writ is to remedy the defects off justice and the grant of
mandamus is therefore an equitable remedy. A writ of mandamus is issued under Article 32 when there
is an infringement of fundamental rights. Hence in the present PIL, the issuance of a writ of mandamus
Is most appropriate to redress the constitutional vices in the impugned provisions.

1.3 That there was violation of fundamental rights

1.3(1) The fundamental rights are fundamental in the sense that human liberty is predicated on their
availability and vice versa, and thus they cannot be waived.
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1.3(2) The fundamental rights are intended not only to protect individual rights but they are based on
high public policy. Liberty of the individual and the protection of the fundamental rights are the very
essence of the democratic way of life adopted by the constitution, and it is the privilege and the duty
of this court to uphold those rights.

1.3(4) Violation of fundamental rights is sin qua non of the exercise of the right conferred by art.32.
When once the court is satisfied that the petitioner’s fundamental right has been infringed, it is not
only its right but also the duty to afford relief to the petitioner, and he need not establish either that he
has no other adequate remedy, or that he has exhausted all remedies provided by law, but has not
obtained proper redress. When the petitioner establishes infringement of his FR, the court has no
discretion but to issue an appropriate writ in his favor.

1.3(5) In Bandhua Mukti morcha case the supreme court endorsed the statement of J. Bhagawati
:- Art 32 does not merely confer power on the court to issue a direction order or writ for the enforcement
of the fundamental rights but it also lays a constitutional obligation on this court to protect the
fundamental rights of the people and for that purpose this court as all incidental and acillary powers
including to forge new remedies and fashion new strategies designed to enforce fundamental rights. It
is in this realization of this constitutional obligation that this court has innovated new methods and
strategies particularly for enforcing the fundamental rights of the poor and disadvantaged who are
denied their human rights and to whom freedom and liberty have no meaning.

Hence, it is humbly submitted that since there has been a violation of the fundamental rights, the Court
has the requisite jurisdiction to entertain this writ petition under Article 32 of the Constitution of India
bought as a Public Interest Litigation.

1.4 There is no requirement for the Petitioner to exhaust local remedies / ALTERNATIVE
REMEDY DOES NOT BAR ISSUE OF WRIT UNDER ART. 32

a) The right under Art. 32 is not subject to the exhaustion of local remedies

1.4(1) The right to approach this Hon'ble Court in case of violation of fundamental rights is itself a
fundamental right enshrined in Art. 32. In Prem Chand Garg, it was held that this right is absolute
 MEMORIAL ON BEHALF OF THE PETITIONER

And may not be impaired on any ground. Further, unlike in Art. 226, the remedy provided by Art. 32
is a fundamental right and not merely a discretionary power of the Court. Moreover, this Hon’bleCourt
has on multiple occasions expressly rejected an argument that called for exhaustion of local
remedies. Therefore, it submitted that it is not open to this Court to carve out exceptions when thereare
none in the text.

1.4(2) Furthermore, judicial orders are not amenable to writ jurisdiction under Art. 32. Consequently,
if a violation of Art. 32 takes place by this Court's rejection of the instant petition, the petitioners will
have absolutely no remedy for such violation of their fundamental right. Hence, the Petitioner
submits that a liberal approach should be adopted, erring on the side of caution, in cases where the
Court rejects a petition under Art. 32.

b) The rule of exhaustion of local remedies is not binding on this Hon'ble Court

1.4(3) Admittedly, cases such as Paul Manickam, Kanubhai, and PN Kumar require the exhaustion of
local remedies before approaching the Court under Art. 32. However, it is submitted that this Hon'ble
court must not be constrained by these decisions for the following reasons: First, this self- imposed
restraint is merely a rule of convenience and discretion and does not oust the jurisdiction
of this Court under Art. 32. Secondly, these cases are per incuriam as they were rendered in
ignorance of previous decisions by higher benches of this Hon'ble Court that expressly rejected such a
rule. Finally, Art. 32(4) specifically provides that this right may not be suspended except by a
constitutional provision. A rule of self-imposed restraint by the judiciary that requires exhaustion of
local remedies constitutes an extra-constitutional partial suspension and is therefore, unconstitutional.
 MEMORIAL ON BEHALF OF THE PETITIONER

c) This Hon'ble Court has a constitutional duty to entertain the instant petition

1.4(4) The Constitutional obligation of this Hon'ble Court as the guarantor of fundamental rights has
been interpreted broadly and as one that exists independent of any other remedy that may be
available. This is particularly true in cases of grave public importance, such as environmental
litigation where relief may not be denied on mere technical grounds. Consequently, it is submitted that
a refusal to entertain the instant petition would be inconsistent with the aforesaid obligation.

Therefore, on the basis of the authorities cited, it is most humbly submitted that the present writ petition
is maintainable under article 32 of the constitution as the impugned provisions are unconstitutional.
 MEMORIAL ON BEHALF OF THE PETITIONER

ARGUMENTS ADVANCED

II : Whether Section 497 of IPC read with Section 198(2) of CrPC is unconstitutional?

2.1 Section 497 of the Indian penal code read with section 198(2) of the code of criminal
procedure violates the fundamental rights guaranteed under article 14 and 15 of the constitution.

2.1(1) It is humbly submitted that the law confers equal right on man and women under Article 14,
which also grants both men and women equal protection of law. Section 497 criminalizes adultery
based on a classification on the grounds of sex and marital status of the women. It is submitted that
such classification bears no rational nexus with the objects sought to be achieved and hence is
discriminatory, disproportionate, manifestly arbitrary, and does not further any legitimate state interest.

2.1(2) Section 497 negates equal treatment of the law and discriminates on the ground of sex and
marital status by treating equal unequally for the following reasons-

(a). The consent or willingness of the women is irrelevant to the offence, but it is the lack of consent
or connivance of the husband, which is considered material

(b). Section 497, IPC read with section 198(2) CrPc gives the man the sole right to lodge a complaint
and precludes a woman from initiating criminal proceedings thereunder

(c). Sexual relation by a married woman with an unmarried or married man are criminalized, whereas
those of a married man with an unmarried woman do not invoke any criminal sanction.

2.1(3) In W. Kalyani V. Sate (2012), the honourable court itself has recognised the gender bias
evident in the provision, as follows: “ The provision is currently under criticism from certain quarters
for showing a strong gender bias for it makes the position of a married woman almost as a property of
her husband. But in terms of the law as it stands, it is evident from a plain reading of the Section that
only a man can be proceeded against and punished for the offence of adultery.” Indeed, the Section
provides expressly that the wife cannot be punished even as an abettor. Thus, the mere fact that the
appellant is a woman makes her completely immune to the charge of adultery and she cannot be
 MEMORIAL ON BEHALF OF THE PETITIONER

proceeded against for that offence

2.1(4) section 497 is also contrary to the obligations of India under ICCPR and the convention on
Elimination of all forms of discrimination Against Women 1970 (CEDAW). Article 23(4) of the
ICCPR, obligates state to “Take appropriate steps to ensure equality of rights and responsibilities of
spouses as to marriage, during marriage and its dissolution.

2.1(5) Similarly, Article 16 of CEDAW requires the state to ensure equality and eliminates
discrimination against women in all matters relating to marriage. Article 1 of CEWDAW prohibits any
restriction on the basis of sex and marital status. The UN working group on discrimination against
women in law and practice, has also called for decriminalization of adultery based on the rights
enshrined under CEDAW, as the law stands to be discriminatory and even in jurisdiction where the
law is gender neutral, they are usually invoked to the detriment of women.

2.1(6) in the landmark decision of Anuj Garg V hotel Association of India (, this Hon’ble court,
declared section 30 of the Punjab excise act 1914, as ultra vires Article 14,15 and 21 of the constitution,
read with the provisions of CEDAW. In a judgement that forms perhaps one of the best expositions of
the gender equality, autonomy and self-determination in the current context, this hon’ble court held as
follows:

“The makers of the Constitution intended to apply equality amongst men and women in all spheres of
life. In framing Articles 14 and 15 of the Constitution, the constitutional goal in that behalf was sought
to be achieved. “

When a discrimination is sought to be made on the purported ground of classification, such

classification must be founded on a rational criterion. The criteria which in absence of any
constitutional provision and, it will bear repetition to state, having regard to the societal conditions as
they prevailed in early 20th century, may not be a rational criterion in the 21st century

2.1(7) in the light of the above, an offense based on the age- old concept of wife being the property of
husband, who can easily fall prey to seduction by another can no longer be justified as a rational basis
for the classification inherent in section 497. It denies a married woman from equality of autonomy
and opportunity in terms of her sexual choices and partners by subjecting such partners to criminal
prosecution, while a married man and or an unmarried woman are free to excise their personal choices
without fear of the law. This provision imposes additional onerous and punitive restrictions in a
 MEMORIAL ON BEHALF OF THE PETITIONER

woman, depending on her marital status and gender, despite shielding her from actual prosecution and
hence falls foul of the fundamental rights to equality enshrined in article 14 of the constitution.

2.1(8) the supposed protection given to women under section 497 not only highlights her lack of sexual
agency, but also ignores the social repercussions of such an offense on her. As a moral offense, adultery
has been targeted mostly against married women while the dalliance of married man is either ignored
or excused.

2.1(9) in Anuj Garg, the hon’ble court warned that “It is to be borne in mind that legislations with
pronounced "protective discrimination" aims, such as this one, potentially serve as double edged
swords. Strict scrutiny test should be employed while assessing the implications of this variety of
legislations. Legislation should not be only assessed on its proposed aims but rather on the implications
and the effects. The impugned legislation suffers from incurable fixations of stereotype morality and
conception of sexual role.”

No law in its ultimate effect should end up perpetuating the oppression of women. Personal freedom
is a fundamental tenet which can not be compromised in the name of expediency until unless there is
a compelling state purpose. Heightened level of scrutiny is the normative threshold for judicial review
in such cases.

2.1(10) the offence of section 497 is used to stifle a woman’s freedom to choose her sexual partners,
imposes upon her a stereotype morality and conception of sexual role and hence perpetuates her
oppression.
 RIAL ON BEHALF OF THE PETITIONER

Section 198(2) of CrPC is also blatantly discriminatory provision in the sense that it is the husband
alone or somebody on behalf of the woman can file a complaint against the man. Consequently
section 198(2) of CrPC has also to be held constitutionally infirm as it treats men and women
unequally.

Section 497 of the Indian penal code read with Section 198(2) is violative of Article 21 of the
constitution.

It is humbly submitted that consensual sex falls within the ambit of sexual privacy of an individual,
and hence should not be penalised. The civil consequence of the act is already given in the form of
divorce under the personal law. Such an interference by the state in extreme personal matter is wholly
unwarranted and against one’s personal liberty.
 MEMORIAL ON BEHALF OF THE PETITIONER

With the recognition of right to privacy, as a fundamental right in particular the acceptance of sexual
privacy of an individual state control in consensual sex matters is highly undesirable. There is no
legitimate state interest which can justify its intrusion in to the personal and private life of the
individual.

Having stated about the dignity of a women in the context of autonomy, desire, choice and identity, it
is obligatory to refer to the recent larger bench decision in K.S Puttuswami and Another V. union of
India and others, which while laying down that privacy is a facet of article 21 of the constitution held
that:

“Privacy enables the individual to retain the autonomy of the body and mind. The autonomy of the
individual is the ability to make decisions on vital matters of concern to life. The destruction by the
State of a sanctified personal space whether of the body or of the mind is violative of the
guarantee against arbitrary State action.”

It is thus apparent that each of the individual has an unfettered power, “whether married or not, either
man or woman to involve in sexual intercourse outside his or her marital relationship”

No marriage or alliance can take away ones right over his or her own body. The very existence of the
adultery in the criminal statute is against the notion of human life and dignity.

It may be repeated at the cost of repetition that treating adultery as a crime would be immense
intrusion in to private realm of the matrimonial sphere and would offend two facets of Article 21
namely dignity of the parties to the marriage and the privacy attached to the relationship. Therefore, it
is humbly submitted that impugned provisions are unconstitutional.
 MEMORIAL ON BEHALF OF THE PETITIONER

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?

It is humbly submitted before the hon’ble supreme court that the exception granted to married women
from prosecution under the section 497 IPC is violative of fundamental rights of adulterer guaranteed
under the constitution of India and is not protected by article 15(4) of the constitution of India.

3.1 Article 15(3) does not protect a statutory provision that entrenches patriarchal notions in
the garb of protecting women.

3.1(1) It is humbly submitted that this exception is contrary to the remedy which Article 15(3) sought
to embody. Section 497 exempts a woman from being punished as an abettor. The exception seeks to
be justified on the grounds of being a provision that is beneficial to women and protected under article
15(3) of the constitution.

3.1(2) the constitutional guarantee in Article 15(3) can’t be employed in a manner that entrenches
paternalistic notions of protection”. This view of protection only serves to place a woman in a cage,
discrimination which is grounded in paternalistic and patriarchal notions can’t claim the protection of
Article 15(3).

3.1(3). In Yusuf Abdul Aziz V. State of Bombay, the Bombay high court, relied upon the carte
blanche approach to Article 15(3):

In this case, the supreme court rejected a constitutional challenge to the adultery provision in the IPC
which is asymmetrical in that women can’t be prosecuted for adultery. The court upheld the law by a
simple invocation of article 15(3), ignoring the fact that the basic of the adultery provision was
precisely the kind of stereotypical gender-based assumptions that the constitution intended to do away
with it, that women are passive partners lacking sexual autonomy. This inattention to how Art 15(3),
ought not to end up becoming a shield to perpetuate sexual and gender – role-based stereotypes has
plagued he court’s jurisprudence ever since.

3.1(4) in State of Madhya Pradesh V. madan lal, the court held that ;

“Dignity of a woman is a part of her non-perishable and immortal self and no one should ever think of
painting it in clay. There cannot be a compromise or settlement as it would be against her honour which
matters the most. It is sacrosanct”
 MEMORIAL ON BEHALF OF THE PETITIONER

moreover, Article 15(3) is not a standalone constitutional provision, but nested with in the Article
14,15,16 equality scheme. The use of the phrase “nothing in this Article”, as a precursor to Art 15(3)
suggests that the goal of such classification mush also fit with in the concept of equality. Article 15(3)
doesn’t exist in isolation. Article 14-18, being constituents of a single side on equality, supplements
each other and incorporate a nondiscrimination principle.

3.1(5) Consequently, laws making “special provisions” for women and children ought to be judicially
received for whether or not they bear some connection with remedying the historical and structural
subordination of women, however, this form of reasoning has been entirely absent from the Indian sex
discrimination jurisprudence.

3.1(6) The same was endorsed by the 5th law commission which recommended that the wife, who has
sexual intercourse with a person other than her husband, should be punished for committing adultery
as the reasons that prompted authors of the penal code in the 19th century for exempting her from
punishment are “not valid” and there is hardly any justification for not treating the guilty par alike.
Again in 2003, the justice Mallimath Committee also suggested that suitable amendments to section
497, IPC should be made to bring adulterous women with in the purview as the object of section 497
is to preserve the sanctity of marriage.

3.3(7) Hence article 15(3) doesn’t not protect a statutory provision that entrenches patriarchal notions
in the garb of protecting women. It is vehemently argued that special provisions can be made for
women as under Article 15(3) of the constitution, but same cannot be used to give them a license to
commit and abet crimes. Any provisions which prohibits punishment is tantamount to a license to
commit the offense of which punishment has been prohibited.

3.1(8) Also in Roopchand adalka v. Delhi development authority, it was held that "To overdo
classification is to undo equality". Furthermore, the judgement in Yousaf Abdul Aziz V state of
Bombay applies a constitutional provision which is obviously in applicable as Article 15(3) which
states that nothing in this article shall prevent the state from making a special provision for women”,
would refer the “state” as either parliament to state legislation or the executive government of the
Centre or states, set up under the constitution after it has come in to force. Section 497 in constitutional
language, an existing law which continues, by virtue of Article 372(1) to apply and could not therefore
be said to be law made by the state.

3.1(9) thus, only such provisions can be made in favor of women under article 15(3) as are reasonable
and which do not altogether obliterate or render illusory the constitutional guarantee mentioned under
article 16(2) .

3.1(10) ordinarily criminal law proceeds on gender neutrality but in this provision, as we perceive, the
said concept is absent. The criminal law intends to have a gender-neutral approach.
 MEMORIAL ON BEHALF OF THE PETITIONER

recalling the historical background of section 497 and then prevailing social conditions along with
sexual mores oppressive to women, the High Court of Bombay in Yousaf Abdul Aziz v State of
Bombay held that

“ what led to the discrimination in this country is not the fact that women had a sex different form that
of man, but that women in this country were so situated that special legislation was required in order
to protect them and it was from the point of view that one finds in S.497 of IPC, a position of law
which takes a sympathetic and charitable view of the weakness of the women in this country.

3.1(11) notably it is observed that these criteria having regard to the societal conditions as prevailed in
early 20th century may not be a rational criteria in the 21st century. Such enforcement of antiquated
social mores has met recent judicial criticism. In 2007 the supreme court declared a Punjab law
prohibiting women from serving alcohol as unconstitutional. In Anuj Garg V Hotel Association of
India.

3.1(12) Further, according to section 34 of the Indian penal code, “whoever a criminal act is done by
sexual persons in furtherance of a common intention of all, each of such person is liable for the act in
the same manner as if it were done by him alone”.

3.1(13) to attract the application of section 34, there should be the commission of a criminal act by two
or more person with the common intention. There is no doubt in the fact that adultery is done by tow
person, a man and a woman with a common intention i.e.. Sexual gratification. So, both the parties
are liable for the act in the same manner. Thus, absolving women from penal punishment makes this
section arbitrary and hence unconstitutional the provision seems to be quite archaic especially when
there is societal progress.

3.1.(14) it cannot be said that exempting married woman from punishment under section 497 is
incompliance with article 15(3). A beneficial legislation can be one of the empowerments of women
and not for granting a license to commit a crime.

3.1(15) therefore, it is most humbly submitted that exempting married woman from punishment under
Section 497 of IPC is violative of Article 14 and 15(1) and cannot be claimed protection as a beneficial
legislation under article 15(3).

3.1(16) the policies carving out of inequality, favoritism or unfairness attracts constitutional morality.
It is also appropriate to declare section 198(2) of CrPC as unconstitutional as once substantive
provisions goes, the procedural provision has to pave the same path.
 MEMORIAL ON BEHALF OF THE PETITIONER

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 maintainable under Article 32 of the Constitution.

• The section 497 of IPC read with Section 198(2) of CrPC is unconstitutional

• The exemption granted to married women under S.497 of IPC is violative of the fundamental
rights of adulter guaranteed under part III 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.