`

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

Special Leave Petition No. of 2024

(Under Art. 136 of Constitution of India)

Writ Petition No. of 2024

(Under Article 32 in the matter of)

MRS. MADHU ….APPELLANT

VERSUS

MR. VAIDHYA & OTHERS .…RESPONDENT(S)

SPECIAL LEAVE JURISDICTION OF SUPREME COURT UNDER ARTICLE

136(1) OF THE INDIAN CONSTITUTION

MEMORANDUM ON BEHALF OF THE APPELLANT

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TABLE OF CONTENTS

TITLES PAGE NO.S

LIST OF ABBREVIATIONS PAGE NO. – 4-5

INDEX OF AUTHORITIES PAGE NO. – 6

BOOKS REFERRED, ACTS

CONVENTIONS AND REPORTS, PAGE NO. – 7-8
WEBSITES

STATEMENT OF THE JURISDICTION PAGE NO. – 9

STATEMENT OF FACTS PAGE NO. – 10-11

ISSUES RAISED PAGE NO. – 12

SUMMARY OF ARGUMENTS PAGE NO. – 13-15

ARGUMENTS ADVANCED PAGE NO. – 16-32

PRAYER PAGE NO. – 33

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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
Crpc Criminal Procedure Code
Hon’ble Honorable
Art. Article
Sec. Section
SLP Special Leave Petition
U.O.I Union of India

Mad. Madras
US United States
UK United Kingdom
Del. Delhi
FB Federal Bureau
VS. VERSUS
AC Appeal cases
U/s. Under section
Vol. Volume
Ltd. Limited
Anr. Another
Ors Others
ALL ER All England Law Reports

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CEDAW Convention on the Elimination of All

Forms of Discrimination Against
Women
APA American Psychological Association
& And

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INDEX OF AUTHORITIES

1. Nihal Singh & Ors v. State of Punjab, AIR 1965 SC 26

2. Sadhu Singh v. Pepsu AIR 1954 SC 271
3. Pawan Kumar v. State of Haryana (2003) 11 SCC 241(SC)
4. CCE v. Standard Motor Products AIR 1989 SC 1298
5. Menaka Gandhi v. U.O.I AIR 1978 SC 597
6. E.P Royappa v. State of Tamilnadu AIR 1974 SCC 555
7. Sesharathamma and Anr. v. Thota Manikyamma and Ors 1991
8. Sowmithiri Vishnu v. U.O.I 1985
9. Jagdish Jugtawat v. Manjit Lata (2002) 5 SCC 422
10. Aher Mensi Ramsi v. Aherani Bal Mini Jehta AIR 2001 SC 148 (2001) 3 SCC
117
11. Joseph Shine v. Union of India AIR 2018 SC 1676
12. Havinder Kaur v. Harmade Sing AIR 1984 Del 66
13. Saroj Rani v. Sudharshan Kumar AIR 1984 SC 1562
14. V. Revathi v. U.O.I & Ors AIR 1988

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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. SC TRIPATHI AND VIBHA ARORA – WOMEN AND CHILDREN LAW
6. KRISHNA PAL MALIK – WOMEN AND LAW
7. MAMTA RAO -- LAW RELATING TO WOMEN AND CHILDREN
8. K.A. PANDEY -- INDIAN PENAL CODE,1860
9. SN MISRA – CRIMINAL PROCEDURE CODE,1973

ACTS CONVENTIONS AND REPORTS

____________________________________________________________________________

1. INDIAN PENAL CODE, 1860

2. CONSTITUTION OF INDIA, 1950
3. THE HINDU MARRIAGE ACT, 1955
4. HINDU ADOPTIONS AND MAINTENANCE ACT, 1956
5. CRIMINAL PROCEDURE CODE, 1973
6. THE SPECIAL MARRIAGE ACT, 1954

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INDEX OF WEBSITES
______

➢ [Link]
➢ [Link]
➢ [Link]
➢ [Link]
➢ [Link]
➢ [Link]
➢ [Link]
➢ LexisNexis
➢ SCC Online
➢ [Link]

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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.

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STATEMENT OF FACTS

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

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ISSUES RAISED

ISSUE- 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?

ISSUE -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.

ISSUE- III

Whether the Appellant is liable for the entitlement of maintenance?

ISSUE – IV

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

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SUMMARY OF ARGUMENTS

ISSUE- 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/Appellant under Article 136(1) of the Constitution of India is maintainable. The
SLP involves a substantial question of law of general public importance. The hasty
judgement of the district Magistrate issuing non- bailable warrant against the Appellant has
resulted in miscarriage of justice and if the Supreme Court does not intervene, it will result
in gross injustice. The Hon’ble Supreme Court should therefore, applying its wide
jurisdiction conferred under Article 136(1) of the Constitution of India, use corrective
measures and provide relief for the Appellant.

ISSUE-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
Appellant deems Section-497 of the Indian Penal Code, 1860 is invalid as it hurts the
sanctity of the laws of nature. The counsel on behalf of the Appellant considers the act of
adultery as a Crime. The Counsel on behalf of the Respondents deems it is 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. Law has never been gender
biased but has many times reflected and questioned the constitutional validity of Section
497 IPC because of the limitations which is time to time questioning the equal position to
both genders. Not only the section is against a women but also biased with men. The plea
of a wife is rejected in the ground state without considering the reasons and going through
the roots. The burden always lies on the appellant to proof the accusation but here women
is not even granted the chance to prove her allegations and second school of thought gives
punishment only to a men non-inclusive of women on same allegations. She is always a

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victim and men has always to suffer.

ISSUE - 3

Whether the Appellant is liable for the entitlement of maintenance?

Whether it being taking help of judiciary or getting off touch with mutual consent, the
alimony to the wife is obvious. Exceptionally if a women has committed adultery then
husband is not liable to pay alimony to her but when the wife finds her husband to be guilty
of adultery with another women then law has put restrictions on the petition of divorce by
women, hence the situation not amounting to grant of alimony. When the spouses get
separated with mutual consent and without taking any interference of the judiciary, still the
husband owes certain responsibilities towards her wife and child. The monthly expenses of
his wife and child is to be fulfilled by husband providing alimony whether it being fixed or
on monthly basis noticing to be 1/3rd of the monthly income of husband. Changes in Section
497 IPC can make fair judgments for both the parties without being biased of genders. The
date and time has reversed the situation of men and women’s infidelity. And if not so then
the appellant is liable to obtain Divorce u/s 13 (1) of Hindu Marriage Act, 1955 and can be
provided pend elite maintenance and alimony respectively u/s 24 & u/s 25 of Hindu
Marriage Act, 1955.

ISSUE – 4
Whether section-497 of the Indian Penal Code, 1860 protects the sanctity of marriage?

It is humbly submitted before this honorable court that the object of Sec. 497, I.P.C. is to
protect the sanctity of marriage. The aim of the Sec. 497 is to deter crime which would lead
to lesser divorce rates and infidelity cases ultimately laying the foundation of a happy
marriage. It protects the marriage from intrusion by an outsider owing to the fact that the
law penalizes the third party only keeping both the parties to marriage in safe circuit. Also,
the law can’t be evoked by the state itself but being a non-cognizable offence, action would
be taken to this effect only after the complaint by the person so entitled under the Sec. 198
(2), Cr.P.C. is made. The intention behind criminalizing adultery is to punish the adulterer,
to deter him from committing such a crime in future. Further the adverse fallout of

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decriminalizing adultery on society cannot be ignored especially in a society like India

where the institution of marriage is regarded as a sacramental union. The provisions of
adultery law are to permit husband and wife to make up their relation rather than to break
it down.

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ARGUMENTS ADVANCED

ISSUE -1

1. THE SPL FILED BEFORE THE HON’BLE SC UNDER ART. 136(1) IS

MAINTAINABLE OR NOT ?

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.
1.2 It is humbly submitted before the Hon’ble court that the present SLP filed by the
Appellant is maintainable in the SC [hereinafter as SC] under Art 136(1) of the
Constitution of India.
1.3 Article 136 of the constitution elucidates that special leave to appeal by the SC.

This, SLP is maintainable as, firstly the appellant has “LOCUS STANDI‟ to approach the
Hon’ble SC. Secondly, the matter involves substantial question of law of general public
importance. Thirdly, grave injustice has been done.

THE APPELLANT HAS LOCUS STANDI TO APPROACH THE HON’BLE SC

1.5 It is humbly submitted before this Hon’ble court that the appellant has locus standi to
approach SC in the present case. Art-136(1) of the constitution is couched in the widest
phraseology
1.6 This court jurisdiction is limited only by its discretion. It is pertinent to note that the
scope of Art 134 providing appeals to the SC in criminal matters is limited whereas
art
136(1) is very broad based and confers discretion on the court to hear “in any cause
or
matter”. Therefore, criminal appeals may be brought to the SC under art 136(1) as
SPL.
1.7 Nihal Singh & Ors v. State of Punjab1,

_________________________________________________________________________________________

1
Nihal Singh & Ors v. State of Punjab, AIR 1965 SC 26

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1.8 Sadhu Singh v. Pepsu2,

THE MATTER INVOLVES QUESTION OF LAW OF GENERAL PUBLIC

IMPORTANCE

1.9 The jurisdiction conferred under art 136(1)on the SC is corrective one & not a
restrictive
one and can be invoked when a question of law of general public importance arises,
by
filing Special Leave Petition.
1.10 A duty is enjoyed upon the SC to exercise its power by setting right the illegality in
the
judgements, it is well-settled that illegality must not be allowed to be perpetrated &
failure by the SC to interfere with the same would amount to allowing the illegality
to be
perpetuated.
1.11 Article 136(1) is the residuary power of SC to do justice where the court is satisfied
that
there is injustice.16 The principle is that this court would never do injustice nor
allow
injustice being perpetrated for the sake of upholding technicalities.
1.12 In the instant matter, the right to privacy and right to religion & right to protection
against
arrest and detention is violated by the state which is a matter of general public
importance
and therefore, calls for intervention by the SC.

THE MATTER INVOLVES SUBSTANTIAL QUESTION OF LAW AND

GROSS
INJUSTICE HAS BEEN DONE

1.13 It is humbly submitted by the Appellant before this Hon’ble Court that, the matter
involves substantial question of law as it concerns the violation of fundamental right of
privacy, right of liberty, right of dignity & right of protection against arrest and detention
of the people and gross injustice has been done.

_________________________________________________________________________________________

2
Sadhu Singh v. Pepsu AIR 1954 SC 271

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1.14 Pawan Kumar v. State of Haryana3, (2003) 11 SCC 241 (SC)

1.15 C.C.E. V. Standard motor products4 AIR 1989 SC 1298.

ISSUE -2

2. WHETHER SECTION 497 IPC IS CONSTITUTIONALLY VALID OR NOT?

2.1 It is humbly submitted in front of the Hon’ble bench that the counsel on behalf of
the Appellant deems Section-497 of the Indian Penal Code, 1860 invalid as it does
hurts the sanctity of the laws of nature. The counsel on behalf of the Appellant
consider the act of adultery as a Crime.

VIOLATION OF ARTICLE 14
2.2 The true scope and nature of Article 14 of the Constitution was highlighted in
Menaka Gandhi v. Union of India5; E.P Royappa v. State Of Tamil Nadu7, it was held as
follows:
“The basic principle which therefore informs Articles 14 is equality and
inhibition against discrimination. Now, what is the content and reach of this great
equalizing principle? It is a founding faith, to use the words of Bose, J., "a way of
life", and it must not be subjected to a narrow pedantic or lexicographic approach.
We cannot countenance any attempt to truncate its all-embracing scope and
meaning, for to do so would be to violate its activist magnitude. Equality is a
dynamic concept with many aspects and dimensions and it cannot be "cribbled,
cabined and confined" within traditional and doctrinaire limits. From a positivistic
point of view, equality is antithetic to arbitrariness.

_________________________________________________________________________________________

3
Pawan Kumar v. State of Haryana, (2003) 11 SCC 241 (SC)
4
C.C.E. V. Standard motor products AIR 1989 SC 1298
5
Menaka Gandhi v. U.O.I AIR 1978 SC 597
6
E.P Royappa v. State of Tamilnadu AIR 1974 SCC 555
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In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law
in a republic while the other, to the whim and caprice of an absolute monarchy.
Where an act is arbitrary it is implicit in it that it is unequal according to political
logic and constitutional law and is therefore violative of Art. 14. Articles 14 strike
at arbitrariness in State action and ensure fairness and equality of treatment."

VIOLATON OF ARTICLE 15(3)

2.3 Section 497 IPC cannot be interpreted as a beneficial provision under Article 15 (3)
of the Constitution of India. Article 15(3) of the constitution states as follows: “Nothing in
this article shall prevent the State from making any special provision for women and
children”. Article 15(3) permits affirmative action in favor of women. This provision
neither meant to exempt married women from the liability of punishment in criminal
offences nor a wife from prosecuting her husband. Balance in the provision of both
complications under the section should be observed and justified by the Hon’ble Court,
where discrimination against a particular sex would offend Articles 14 and 15 of the
Constitution of India, when men and woman are on equal footing.

2.4 The scope of Article 15(3) of the Constitution of India was explained by this Hon’ble
Supreme Court in Thota Sesharathamma and Anr v. Thota Manikyamma (Dead) by Lrs.
and Others7, in the following words, “Freedom of contract would yield place to public
policy envisaged above. Its effect must be tested on the anvil of socio- economic justice,
equality of status and to oversee whether it would sub serve the constitutional animation or
frustrates. Art. 15(3) relieves from the rigor of Art. 15(1) and charges the State to make
special provision to accord to-women socioeconomic equality. As a fact, Art. 15(3) as a
fore runner to common code does animate 'to 'make law to accord socio- economic equality
to every female citizen of India, irrespective of religion, race, caste or region.”

Therefore, the purpose of Article 15(3) is to further socio-economic equality of

women and has always been interpreted as such. Article 15(3) permits reservation
and the like for special classes. It cannot operate as a license for criminal exemption
and the jurisprudence on Article 15(3) clearly evidences this.

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__________________________________________________________________________________________

7
Sesharathamma and Anr. v. Thota Manikyamma and Ors 1991

The impugned provisions have no justification or rational basis for the differential
treatment which have been accorded to men and women. Married men are exempted
from being prosecuted by the wife for adultery, which caused the Appellant being
legally restricted to the provision of Section 497 IPC with context to the same there
should be a fair deal for both the genders. The assumption that women are incapable
of committing adultery is irrational and perverse in addition to that, the wife cannot
prosecute her husband is also repugnant.

2.5 It is important to note that women cannot prosecute/file a complaint under

Section 497 IPC read with 198(2) Cr PC because Section 198 (2) expressly lay down
as follows:“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.”
Therefore, the woman whose husband is committing adultery is left with no remedy.
Wives of those men committing adultery are also equally aggrieved by the
adulterous act. Excluding her from the purview of initiating criminal prosecution
has no rhyme or reason. She is situated in the same position as an aggrieved husband
whose wife has committed adultery. Such an exclusion is unjust, illegal and
arbitrary and violative of the fundamental rights under Article 14 and 15 of the
Constitution of India.
Hon’ble Court is humbly requested that the changes in provision of Section 497 IPC
should be taken into consideration according to the rights available to women under
Article 15 (3) where it is clearly stated that: Nothing in this article shall prevent the
State from making any special provision for women and children. Both the aspects
1) wife cannot prosecute husband and 2) Women is not liable to be punished for
committing adultery should be changed with the social changes and bring
uniformity in section 497 IPC and Section 198 (2) Cr PC

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INTERNATIONAL CONVENTIONS AND TREATIES ON GENDER

EQUALITY.
2.6 In 1869, In Subjection of Women John Stuart Mill stated, “the subordination of
one sex to the other ought to be replaced by a principle of perfect equality, admitting
neither power or privilege on the one side nor disability on the other”.
CEDAW 1979 is the United Nations' landmark treaty marking the struggle for
women's right. It is regarded as the Bill of Rights for women. It graphically puts
what constitutes discrimination against women and spells out tools so that women's
rights are not violated and they are conferred the same rights.

2.7 The equality principles were reaffirmed in the Second World Conference on
Human Rights at Vienna in June 1993 and in the Fourth World Conference on
Women held in Beijing in 1995. India was a party to this convention and other
declarations and is committed to actualize them. In 1993 Conference, gender-based
violence and all categories of sexual harassment and exploitation were condemned.
A part of the Resolution reads thus: “The human rights of women and of the girl
child are an inalienable, integral and indivisible part of universal human rights. The
World Conference on Human Rights urges governments, institutions, inter-
governmental and non-governmental organizations to intensify their efforts for the
protection and promotion of human rights of women and the girl child.”
The other relevant international instruments on women are: (i) Universal
Declaration of Human Rights (1948), (ii) Convention on the Political Rights of
Women (1952), (iii) International Covenant on Civil and Political Rights (1966),
(iv) International Covenant on Economic, Social and Cultural Rights (1966), (v)
Declaration on the Elimination of All Forms of Discrimination against Women
(1967), (vi) Declaration on the Protection of Women and Children in Emergency
and Armed Conflict (1974), (vii) Inter-American Convention for the Prevention,
Punishment and Elimination of Violence against Women (1995), (viii) Universal
Declaration on Democracy (1997), and (ix) Optional Protocol to the Convention on
the Elimination of All Forms of Discrimination against Women (1999).”

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CRITICAL ANALYSIS OF PREVIOUS JUDGEMENTS

2.8 This Hon’ble Court in Sowmithri Vishnu v. U.O.I Case has held as following:
“Section 497 does not envisage the prosecution of the wife by the husband for
'adultery'. The offence of adultery as defined in that section can only be committed
by a man, not by a woman. Indeed, the section provides expressly that the wife shall
not be punishable even as an abettor. No grievance can then be made that the
section does not allow the wife to prosecute the husband for adultery. The
contemplation of the law, evidently, is that the wife, who is involved in an illicit
relationship with another man, is a victim and not the author of the crime. The
offence of adultery, as defined in section 497, is considered by the Legislature as an
offence against the sanctity of the matrimonial home, an act which is committed by
a man, as it generally is. Therefore, those men who defile that sanctity are brought
within the net of the law. In a sense, we revert to the same point: Who can prosecute
whom for which offence depends, firstly, on the definition of the offence and,
secondly, upon the restrictions placed by the law of procedure on the right to
prosecute.”
It is submitted that when this Hon’ble Court has stated that the contemplation of the
law is that the wife who is involved in an illicit relationship with another man is a
victim and not the author of the crime. Such a premise is illogical, arbitrary and has
no sound or rational basis. Also, if that be the case, this Hon’ble Court has not
addressed the issue as to why a woman is not permitted to prosecute her husband,
who, even as per the observation of this Hon’ble Court is an author of the crime.

________________________
8
Sowmithiri Vishnu v. U.O.I 1985

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2.9 In Revathi this Hon’ble Court held as follows:

“The argument in support of the challenge is that whether or not the husband has
the right to prosecute the disloyal wife, the wife must have the right to prosecute the
disloyal husband. Admittedly under the law, the aggrieved husband whose wife has
been disloyal to him has no right under the law to prosecute his wife, in as much as
by the very definition of the offence, only a man can commit it, not a woman. The
philosophy underlying the scheme of these provisions appears to be that as between
the husband and the wife social good will be promoted by permitting them to 'make
up' or 'break up' the matrimonial tie rather than to drag each other to the criminal
court. They can either condone the offence in a spirit of 'forgive and forget' and live
together or separate by approaching a matrimonial court and snapping the
matrimonial tie by securing divorce. They are not enabled to send each other to jail.
Perhaps it is as well that the children (if any) are saved from the trauma of one of
their parents being jailed at the instance of the other parent. Whether one does or
does not subscribe to the wisdom or philosophy of these provisions is of little
consequence. For, the Court is not the arbiter of the wisdom or the philosophy of
the law. It is the arbiter merely of the constitutionality of the law.”

It is submitted that the above explanation is not the intent of the legislature. The sole
object of the exemption provided for women from being prosecuted for committing
the offence is that the definition treats women as incapable of committing offence
and the property of the husband.
Further, in the said case, this Hon’ble Court has held:

“Section 497 of the Indian Penal Code and Section 198(1) read with Section 198(2)
of the Criminal Procedure Code go hand in hand and constitute a legislative packet
to deal with the offence committed by an outsider to the matrimonial unit who
invades the peace and privacy of the matrimonial unit and poisons the relationship
between the two partners constituting the matrimonial unit. The community
punishes the 'outsider' who breaks into the matrimonial home and occasions the

violation of sanctity of the matrimonial tie by developing an illicit relationship with

one of the spouses subject to the rider that the erring 'man' alone can be punished

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and not the erring woman. It does not arm the two spouses to hit each other with
the weapon of criminal law. That is why neither the husband can prosecute the wife
and send her to jail nor can the wife to prosecute the husband and send him to jail.
There is no discrimination based on sex. While the outsider who violates the sanctity
of the matrimonial home is punished a rider exceptionally if the outsider is a woman
she is not punished. Thus, There is reverse discrimination in 'favor' of the woman
rather than 'against' her.

The law does not envisage the punishment of any of the spouses at the instance of
each other. Thus there is no discrimination against the woman in so far as she is
not permitted to prosecute her husband. A husband is not permitted because the wife
is not treated an offender in the eye of law. The wife is not permitted as Section
198(l) read with section 198(2) does not permit her to do so. In the ultimate analysis
the law has meted out even handed justice to both of them in the matter of
prosecuting each other or securing the incarceration of each other. Thus no
discrimination has been practiced. I circumscribing the scope of Section 198(2) and
fashioning it so that the right to prosecute the adulterer is restricted to the husband
of the adulteress but has not been extended to the wife of the adulterer.”

It is submitted that if the above explanation is to be accepted, even an unmarried

woman is ‘an outsider’ for the matrimonial home. Such persons ought to have been
included as the persons capable of committing the offence. A woman is unable to
prosecute merely because of the given definition of the offence. To address the issue
the explanation by the Hon’ble Court is insufficient. The equations are tried to be
balanced which is not ought to be the justification which is needed hereby.
It is obvious that no adultery can be committed unless a woman is a consenting
partner. The judicial perception that only a man can be "an outsider", who has
potential to invade the peace and privacy of the matrimonial unit and to poison the
relationship between the unfaithful wife and her husband, therefore, seems to be,
with due respect, less convincing and unrealistic. "An outsider woman", can, like
"an outsider man", be equally capable of "invading" the matrimonial peace and
privacy as well as of "poisoning" the relationship of not only her own matrimonial
home but also that of her paramour. Similarly, the judicial opinion that Section

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198(1) read with Section 198(2) Cr PC, disqualifying the wife of an unfaithful
husband for prosecuting him for his promiscuous behavior, with due respect, is
unconvincing and illogical.
2.10 Article 14 (1) states that “all persons shall be equal before the courts and
tribunals”.

2.11 Article 26 emphatically lays down that “All persons are equal before the law
and are entitled without any discrimination to the equal protection of the law. In
this respect, the law shall prohibit any discrimination and guarantee to all persons
equal and effective protection against discrimination on any ground such as race,
color, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status.”

Moreover, the Convention on the Elimination of All Forms of Discrimination

Against Women, 1979 (hereinafter ‘CEDAW’) is another peculiar instrument
proscribing discrimination. India is a party to CEDAW and the provisions are
therefore, binding on it.

Article 1 defines discrimination as follows: “Any distinction, exclusion or

restriction made on the basis of sex which has the effect or purpose of impairing or
nullifying the recognition, enjoyment or exercise by women, irrespective of their
marital status, on a basis of equality of men and women, of human rights and
fundamental freedoms in the political, economic, social, cultural, civil or any other
field.”
S.198 (2) of Cr PC by specifically excluding women from the eligibility to prosecute
directly violates the said provision. Article 16 lays down an express prohibition
against “discrimination against women in all matters relating to marriage and
family relations.”

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ISSUE -3

3. WHETHER THE APPELLANT IS LIABLE FOR THE ENTITLEMENT OF

MAINTENANCE?

3.1 It is humbly submitted before the Hon’ble Court that the Appellant is liable for
the entitlement of maintenance. In order to avoid multiplicity of proceedings, the
benefits of personal law for award of or continuance of maintenance should be given
to the claimant where there is ineligibility u/s 125 Cr PC. Jagdish Jugtawat v. Manjit
Lata9, (2002) 5 SCC 422. An order of maintenance u/s 125 Cr PC does not foreclose
remedy u/s 18(2) of the Hindu Adoption and Maintenance Act. These Acts are co-
existent, mutually complimentary, supplementary and in aid and addition of each
other Aher Mensi Ramsi v. Aherani Bal Mini Jetha10, AIR 2001 SC 148: (2001) 3
SCC 117.

The Appellant is liable to seek Divorce and maintenance in accordance with the
personal law guaranteed under Hindu Marriage Act, 1955. Divorce under Section
13 of Hindu Marriage Act, 1955 has been stated as;
“[1] Any marriage solemnized, whether before or after the commencement of this
Act, may, on a petition presented by either the husband or the wife, be dissolved
by a decree of divorce on the ground that the other party
(i) has, after the solemnization of the marriage, had voluntary sexual
intercourse with any person other than his or her spouse.”
3.2 Whereas Section 24 states as follows:- “Maintenance pendente lite and expenses
of proceedings. Where in any proceeding under this Act it appears to the court that
either the wife or the husband, as the case may be, has no independent income
sufficient for her or his support and the necessary expenses of the proceeding, it
may, on the application of the wife or the husband, order the respondent to pay to
the Appellant the expenses of the proceeding, and monthly during the proceeding
such sum as, having regard to the Appellant's own income and the income of the
respondent, it may seem to the court to be reasonable:

9
Jagdish Jugtawat v. Manjit Lata (2002) 5 SCC 422
10
Aher Mensi Ramsi v. Aherani Bal Mini Jehta AIR 2001 SC 148 (2001) 3 SCC 11

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[Provided that the application for the payment of the expenses of the proceeding and such
monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty
days from the date of service of notice on the wife or the husband, as the case may be.]”

3.3 "Under Section 24 of the Act, the court has to see if the applicant who may either
be wife or husband has no independent income sufficient for her or his support and
the necessary expenses of the proceeding, and then award expenses of the
proceeding and such sum every month, having regard to the applicant's own income
or the income of the respondent which may seem to the court to be reasonable.

This section may be contrasted with Section 25 of the Act which deals with
permanent alimony and maintenance.
3.4 Under Section 25, the court may order the respondent to pay to the applicant
for her or his maintenance and support, till her or his lifetime, either a lump sum
amount or such monthly or periodical sum, having regard to the respondent's own
income and other property, if any, and the income and other property of the
applicant, the conduct of the parties and other circumstances of the case, which the
court might deem just. It may be noticed that heading of Section 24 of the Act is
"Maintenance pendente lite and expenses of proceedings". The section, however,
does not use the word "maintenance", but it clearly appears that the words "support"
and "maintenance" are synonymous, "Support" means "to provide money for a
person to live on", like "he supports a family" or "he supports his old mother."
Maintenance is "an act of maintaining", i.e. to support with money. It may be useful
at this stage to refer to the definition of "maintenance".

Under Section 3 of Hindu Adoptions and Maintenance Act, 1956, "maintenance"

includes-
(i) in all cases, provision for food, clothing, residence, education and medical
attendance and treatment ;

(ii) in the case of an unmarried daughter also the reasonable expenses of incident to
her marriage. I would, therefore, think that when we talk of maintenance and
support, the definition of "maintenance" as given in the Act of 1956 should be
adopted. Section 18 of the Act of 1956 also refers to maintenance of wife and gives

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the circumstances under which a Hindu wife is entitled to live separately from her
husband without forfeiting her claim to maintenance".
3.5 Husband and wife executed divorce agreement on grounds of incompatibility of
marriage and remote chances of living together. The wife was living separately in
pursuance of the agreement. And the Husband has stopped providing money to wife
and daughter, after getting separated through mutual consent. To sum up all the
aspects, i) as the daughter remained with mother, it is sole responsibility of a father
to handle the expenses of an unmarried daughter but he miserably failed with his
responsibilities. ii) The suffering of the child due to conduct of the parents should
not be the scenario to create a negative impact on their social and psychological
development. iii) The Appellant hereby can provide their daughter a good living
with the maintenance by husband. iv) The practical probability of living together
would be restless and nil in the pertaining situation, moreover, v) the Appellant has
no source of income too, thus all the aspects mentioned are favorable to make the
Appellant liable for maintenance.
ISSUE – 4

[Link] THE DECRIMINALIZATION OF SEC. 497 OF I.P.C. DEGRADES THE

SANCTITY OF MARRIAGE?

4.1 It is humbly submitted before this hon’ble court that the said provision protects the
sanctity of marriage. Decriminalizing adultery will pave the way for rise in divorce rates
and cases of marital infidelity, the decriminalization of adultery will critically endangered
the institution of marriage.

SECTION 497 I.P.C. ACTS AS AN EFFECTIVE DETERRENCE

4.2 It is submitted that laws are made to deter crime and not only to punish it. Criminal law
everywhere in the world serves as a guardian of the moral principles of society, protecting
a society’s historical roots while leading it towards a progressive social order. The
Deterrence theory, posits that legal sanctions deter citizens from engaging in criminal

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activity. This theory, grounded in the rational actor approach, is based on the notion that
people choose whether or not to commit a crime by weighing the potential benefits of
getting away with it against the potential consequences of getting caught. Indian criminal
law explicitly criminalizes acts that deceive a person. However, it is surprising that the
criminalization of an act that breaches the sanctity of a pure social institution such as
marriage, by way of deceit and lies, is facing challenges in the present case.

4.3 Sec. 497 deals with the offence committed by an outsider to the matrimonial unit who
invades the peace and privacy of the matrimonial unit and poisons the relationship between
the two partners constituting the matrimonial unit. The community punishes the 'outsider'
who breaks into the matrimonial home and occasions the violation of sanctity of the
matrimonial tie by developing an illicit to national life or the reasoning is so plainly
erroneous in the light of later thought that it is wiser to be ultimately right rather to be
consistently wrong relationship with one of the spouses subject to the rider that the erring
'man' alone can be punished and not the erring woman. The intention behind criminalizing
adultery is to punish the adulterer; to deter him from committing such a crime in future and
to set an example that others also, who will commit the crime will be punished likewise. If
it is turned merely into a civil offence, adultery will only be a ground to seek divorce and
will provide a free license to prospective offenders to breach in the sanctity of marriage.
As far as its effect is concerned, Adultery is the biggest reason for divorce around the world.
It is important to note here that the National Crime Records Bureau doesn’t even maintain
a database as instances of it are negligible. Consequently, In India, the divorce rate is less
than 1 percent. Out of 1000 marriages, only 13 result in divorce. If we were to bring down
a single brick, the whole house would collapse. A welfare-oriented and inclusive country
like India, while demanding that a marriage be registered in order to acknowledge and
protect the rights of the parties involved, cannot do away with a crime which undermines
the same legally recognized institution. The law of Adultery works as a shield to deter
crime and not as a sword to punish offenders, even in punishing offence The law clearly
takes cognizance to preserve marriage and parties to it and punishes the outsider.

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DECRIMINALIZING ADULTERY WILL DESTROY THE INSTITUTION OF

MARRIAGE
4.4 It is further submitted that the judgment of the court in Joseph Shine v. Union of India11,
decriminalizing adultery is bound to have a far-reaching impact upon marriages in India,
the adverse fallout cannot be ignored. In India, the Institution of marriage is regarded as a
sacramental union. It is the basis of society. It is a contract but it is also a sacred covenant.
The main aim of the institution of marriage is to protect the society from foulness and in-
chastity. Marriage and the family are social institutions of vital importance. Entering into
and sustaining a marriage is a matter of intense private significance to the parties to that
marriage for they make a promise to one another to establish and maintain an intimate
relationship for the rest of their lives which they acknowledge obliges them to support one
another, to live together and to be faithful to one another. Entering into marriage therefore
is to enter into a relationship that has public significance as well. In the light of such
importance being attributed to marriage, decriminalizing adultery will pave way for rise in
divorce rates and cases of marital infidelity, the decriminalization of adultery will critically
endangered the institution of marriage The examples of the disastrous effect of
decriminalizing adultery can be seen around the world. According to a study published by
the National Institutes of Health, Adultery is one of the most cited reasons for divorce.
According to the American Psychological Association (A.P.A.), infidelity in the United
States accounted for 20-40 percent of divorces. Divorce is also a common phenomenon in
Europe. The divorce-marriage ratio in the US and UK is very high at “Reasons for divorce
and recollections of premarital intervention: implications for improving relationship
education” (Dept. of Psychology, University of Denver, PMID: 24818068) children were
born out of wedlock in France than to married parents for the first time in 2006. A study
which reviewed over 130 studies measuring how marital status affects personal well- being,
it shows that married men and women are generally happier and less stressed than the
unmarried.42 Moreover, a 2015 study,43 updated and confirmed the findings in a 2002
study in Clinical Child and Family Psychology Review,44 discuss a variety of health
consequences for children of divorced parents. Studies have claimed that people who have
__________________________________________________________________________________________

11
Joseph Shine v. Union of India AIR 2018 SC 1676

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been in divorced families have higher rates of alcoholism and other substance abuse
compared to those who have never been divorced. Researchers have also shown that
children of divorced or separated parents: Have higher rates of clinical Joseph Shine
v. Union of India11 depression: Family disruption and low socioeconomic status in
early childhood increase the long-term risk for major depression,45 Seek formal
psychiatric care at higher rates, In the case of men, are more likely to commit suicide
and have lower life expectancies. The institution of marriage has so much deteriorated
that more It is thus clear adultery not only run the risk of fostering extra-marital
affairs, the emergence of divorce as the way out will catalyze the break-up of
marriages, leaving little children in the lurch.

THE PROVISION IS TO PROMOTE GOODWILL BETWEEN HUSBAND AND WIFE

AND PERMIT THEM TO MAKE UP RATHER THAN TO DRAG EACH OTHER TO
THE COURT
4.5 According to the Satapatha Brahmana, “the wife is verily the half of the husband”. Man
is only half, not complete until he marries. The Taittiriya Samhita is to the same effect,
“half is the husband of the wife”. Manu further said, “Once a man and a woman are united
in marriage, they must see that there are no differences between them, and that they remain
faithful to each other. From the notion of unity of personality of husband and the wife,
mutual fidelity between husband and wife is the highest dharma. The importance of
marriage is evident from the pronouncement of the High Court of madras which states that
marriage is the last of the ten sacraments enjoyed by the Hindu religion purifying the body
from inherited taints. The same philosophy has been incorporated under Sec. 9 of the Hindu
Marriage Act, 1955 which provides for the restitution of conjugal rights. In Smt. Havinder
Kaur v. Harmande Singh12 , the court did not accept the earlier view and rightly observed
that: “The object of restitution decree was to bring about cohabitation between the
estranged parties so that they could live together in the matrimonial home in amity.

________________________________________________________________________________________

11
Joseph Shine v. Union of India AIR 2018 SC 1676
12
Havinder Kaur v. Harmade Sing AIR 1984 Del 66

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The remedy of restitution aimed at cohabitation and consortium, the restitution decree does
not enforce sexual intercourse.
It was a fallacy to hold that the restitution of conjugal rights constituted the starkest form
of governmental invasion of mutual privacy.” The same view was reiterated by the SC in
Saroj Rani v. Sudarshan Kumar13.

4.6 In V. Revathi v. Union of India & Ors, The court has rightly observed: “The philosophy
underlying the scheme of these provisions appears to be that as between the husband and
the wife social good will be promoted by permitting them to 'make up' or 'break up' the
matrimonial tie rather than to drag each other to the criminal court. can either condone the
offence in a spirit of 'forgive and forget' and live together or separate by approaching a
matrimonial court and snapping the matrimonial tie by securing divorce. They are not
enabled to send each other to jail. Perhaps it is as well that the children (if any) are saved
from the trauma of one of their parents being jailed at the instance of the other parent.” The
offence of adultery, as defined in Sec. 497 is considered by the Legislature as an offence
against the sanctity of the matrimonial home. Therefore, those men who defile that sanctity
are brought within the net of the law.

________________________________________________________________________________________

13
Saroj Rani v. Sudharshan Kumar AIR 1984 SC 1562
14
V. Revathi v. U.O.I & Ors AIR 1988

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PRAYER

WHEREFORE IN THE LIGHT OF THE ISSUES 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 maintainable in the Hon’ble
Court.
2. The court should hold the Sec 497 of I.P.C is unconstitutional.
3. The court should hold that maintenance should be provided to the Appellant.
4. The Decriminalization of Sec 497 of I.P.C Degrades the sanctity of Marriage.

AND/OR
PASS ANY SUCH ORDER, OTHER ORDER THAT IT DEEMS FIT IN THE INTEREST OF
JUSTICE, EQUITY AND GOOD CONSCIENCE. AND FOR THIS, APPELLANT IN DUTY
BOUND SHALL HUMBLY PRAY.

All of which is most humbly and respectfully submitted on behalf of the appellant.

Place: ……………………

Date: …………………….

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