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TEAM CODE: MUKHTAR

JAGARLAMUDI CHANDRAMOULI COLLEGE OF LAW

2 ND^ NATIONAL MOOT COURT COMPETITION 2023

BEFORE THE HON’BLE SUPREME COURT OF INDIA

(UNDER ARTICLE 137 OF THE CONSTITUTION OF INDIA, 1950 READ WITH

ORDER XLVII, RULE 1 OF THE SUPREME COURT RULES, 2013)

IN THE MATTER OF:

REVIEW PETITION (Crl.) No. ___ / 2023

CONSORTIUM OF RELIGIONS AND ANR. ……………………….........PETITIONERS

VERSUS

SOWMITHRI ……………………………………………………...…….......RESPONDENT

MEMORIAL ON BEHALF OF RESPONDENT

MOST RESPECTFYLLY SUBMITTED BEFORE THE BENCH OF THIS HON’BLE COURT

TEAM CODE: MUKHTAR

MEMORIAL ON BEHALF OF RESPONDENT TABLE OF CONTENTS

LIST OF ABBREVATIONS …………….……………….…….……….………………… INDEX OF AUTHORITIES ……………………...…….…………….…………...…….... STATEMENT OF JURISDICTION …………………………….….…………………..... STATEMENT OF FACTS ………………………………………………...……............... ISSUES RAISED ………………………………………………………..…………….…...1 0 SUMMARY OF ARGUMENTS ………………………………………..………………..1 1 ARGUMENTS ADVANCED …………………………….……...……..…………….…..

ISSUE 1: WHETHER THE REVIEW PETITION FILED BY ‘CONSORTIUM OF RELIGIONS’ ASSOCIATION IS MAINTAINABLE OR NOT? ............................

1.1. THE PETITIONER LACKS REQUISITE LOCUS STANDI

1.2. THERE IS NO ERROR APPARENT ON THE FACE OF RECORD IN JUDGMENT

1.3. FINALITY OF JUDGEMENT MUST BE RESPECTED

1.4. VIOLATION OF FUNDAMENTAL RIGHTS CANNOT BE ALLEGED UNDER REVIEW JURISDICTION

ISSUE 2: WHETHER DECRIMINALIZING ADULTERY DESTROYS THE SANCTITY OF MARRIAGE THEREBY VIOLATING THE FREEDOM OF RELIGION OR NOT? ...................................................................................

2.1. PRESERVING THE SANCTITY OF MARRIAGE IS A COLLECTIVE DUTY OF BOTH THE PARTNERS

2.2. CRIMINALIZING ADULTERY IS NOT A DETERRENT

2.3. NOTION OF MARITAL SERVITUDE

ISSUE 3: WHETHER SECTION 497 OF IPC CLASSIFYING MEN AND WOMEN IN DIFFERENT PEDESTALS IS VIOLATIVE OF ARTICLE 14 AND 15 OF THE INDIAN CONSTITUTION OR NOT? ................................................................................

3.1. THE SECTION 497 OF IPC FAILS THE TEST OF REASONABLE CLASSIFICATION

3.2. SECTION 497 OF IPC IS VIOLATIVE OF ARTICLE 15 OF THE CONSTITUTION

ISSUE 4: WHETHER SECTION 497 OF IPC IS VIOLATIVE OF ARTICLE 21 OF THE INDIAN CONSTITUTION OR NOT?. ...................................................................... 24

MEMORIAL ON BEHALF OF RESPONDENT

4.1. RIGHT TO LIVE WITH DIGNITY

4.2. RIGHT TO REPUTATION

4.3. RIGHT TO PRIVACY AND RIGHT TO CHOOSE

ISSUE 5 : WHETHER SECTION 497 OF IPC SHOULD BE RECASTED REMOVING ANOMALIES OR NOT?. ...................................................................................................... 26

PRAYER ………………………………………….………………………………………

MEMORIAL ON BEHALF OF RESPONDENT LIST OF ABBREVATIONS

S.No. ABBREVIATIONS EXPANSION

1 & And

2 ¶ Paragraph

3 AIR All India Reporter

4 Anr Another

5 Art Article

6 CrPC Code of Criminal Procedure

7 Crl Criminal

8 et. Al And others

9 Ibid. Ibidem- In the same place

10 i.e., That is

11 IPC Indian Penal Code

12 HC High Court

13 Hon’ble Honourable

14 No. Number

15 Ors. Others

16 Pg. Page

MEMORIAL ON BEHALF OF RESPONDENT

17 SC Supreme Court

18 SCC Supreme Court Cases

19 SCR Supreme Court Reporter

20 Sec Section

21 UOI Union of India

22 u/s Under section

23 Vol Volume

24 Vs. Versus

MEMORIAL ON BEHALF OF RESPONDENT

INDEX OF AUTHORITIES

15. James Sibongo vs. Lister Lutombi Chaka and Anr , Case No. SA77-14) (19.08.2016)

• 1. State of Kerala vs. R. Balakrishna Pillai, [1993] 2 Kerala Series CASES
• 2. Rajubhai Dhamirbhai Baria vs. State of Gujarat, 2012 (114) Bom LR
• 3. Satvir Singh vs. Baldeva (1996) 8 SCC
• 4. Simranjit Singh Mann vs. Union of India (1992) 4 SCC
• 5. State of Karnataka vs. T. R. Dhannanjaya (1995) 6 SCC
  • civil Application No. 1247 of 6. Assistant Commissioner of Income Tax, vs. Saurashtra Kutch Stock Exchange Ltd, Special
  • Bangalore, MA 172/ BANG/ 7. Income Tax officer Ward-5(3)(2), Bangalore vs. Sri Mahesh Suryanarayanan Lingam ,
• 8. Mr. Arani Mukhopadhyay vs Employees Provident Fund, W. P. No. 15262 (W) of
• 9. Ajit Kumar Rath vs. State of Orissa and Others, 1999 (9) SCC
• 10. Mr. Arani Mukhopadhyay vs Employees Provident Fund, W. P. No. 15262 (W) of
• 11. Chandra Kanta v. Sheikh Habib, AIR 1975 SC 1500: (1975) 1 SCC
• 12. Avtar Singh Sekhon v. UOI, AIR 1980 SC
• 13. Joseph Shine vs. Union of India, W.P(Crl) NO. 194 OF
• 14 S. Khushboo vs. Kanniammal & Anr , Crl. Appeal no. 913 of
  • No. 16876 of 16. Payal Sharma vs. Superintendent, Nari Niketan Kalindri Vihar, Agra, C.M.H.C.W.P. Appeal
• 17. John Vallamattom v.UOI, Writ Petition (Civil) 242 Of
• 18. Shri Ram Krishna Dalmia vs Shri Justice S. R. Tendolkar, 1958 AIR 538, 1959 SCR
• 19. D.S. Nakara & Others vs Union Of India, 1983 AIR 130, 1983 SCR (2)
• 20. Shayara Bano vs. Union of India and Ors., W.P(C) No. 118 of
• 21 Navtej Singh Johar vs. Union of India, AIR 2018 SC 4321; W. P. (Crl.) No. 76 of
• 22 Francis Coralie vs. Union Territory and Board of Trustees , 1981 AIR 746, 1981 SCR (2)
• 23. Port of Bombay vs. Nadkarn, W. P. No.3958 (W) of
• 24. W. Kalyani v. State, Crl. appeal NO. 2232 OF
• 25. Shafin Jahan vs. Asokan K .M. & Ors, Crl Appeal No. 366 OF
• 26 Anuj Garg vs. Hotel Association of India, AIR 2008 SC
• 27 R.M.D.C. vs. Union of India, AIR 1957 SC

MEMORIAL ON BEHALF OF RESPONDENT

STATUTES, ACTS AND RULES

1. The Constitution of India, 1950
2. The Indian Penal Code , 1860
3. The Code of Criminal Procedure, 1973
4. The Supreme court rules, 2013

BOOKS AND COMMENTARIES

1. M.P. Jain, Indian Constitutional Law , (6th Ed, 2010)
2. Durga Das Basu, Shorter Constitution Of India , (14th Ed, 2009)
3. V.N. Shukla, Constitution of India , (12th Ed, 2016)
4. B.M. Gandhi, Indian Penal Code , (4th Ed, 2017)
5. 5. S.N. Misra, The Code Of Criminal Procedure Code , (23rd Ed, 2020)
6. R.P.Kataria and Salah Uddin, Commentary on Human Rights( 1st^ Ed,2011)

LEGAL DATABASE

1. http://www.indiakanoon.com
2. http://www.scconline.com
3. http://www.casemine.com
4. https://www.scconline.com/

MEMORIAL ON BEHALF OF RESPONDENT

STATEMENT OF JURISDICTION

The Respondent humbly submits this memorandum before the Hon’ble Supreme Court of India in lieu of Petitioners invoking the jurisdiction under Article 137 of the Constitution of India read with Order XLVII, Rule 1 of the Supreme Court Rules, 2013 made under Article 145 of the Constitution of India.

Article 137 in the Constitution Of India 1950

137. Review of judgments or orders by the Supreme Court Subject to the provisions of any law made by Parliament or any rules made under Article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it.

Article 145 in The Constitution Of India 1950

145. Rules of Court, etc

(1) Subject to the provisions of any law made by Parliament the Supreme Court may from time to time, with the approval of the President, make rules for regulating generally the practice and procedure of the Court

Order XLVII of Supreme Court Rules 2013 : "Review"

1. The Court may review its judgment or order, but no application for review will be entertained in a civil proceeding except on the ground mentioned in Order XLVII, rule 1 of the Code, and in a criminal proceeding except on the ground of an error apparent on the face of the record.

The application for review shall be accompanied by a certificate of the Advocate on Record certifying that it is the first application for review and is based on the grounds admissible under the Rules.

The present memorandum sets forth the Facts, Contentions and Arguments.

MEMORIAL ON BEHALF OF RESPONDENT

STATEMENT OF FACTS

 Yusuf Abdul filed a Petition before the Family Court for Divorce against his wife Sowmithri on the grounds of desertion and adultery. Pending the divorce proceedings, he also filed a Complaint against Joseph under Section 497 of IPC charging him of committing adultery with Sowmithri.  Sowmithri filed the Writ Petition before the Supreme court for quashing off the Complaint on the ground that Section 497 IPC which created the offence of Adultery is unconstitutional. She pleaded that Section 497 of IPC is violative of Article 14 and Article 21.  On 19th September, 2022 the Supreme court struck down Section 497 IPC as unconstitutional being violative of Articles 14, 15 and 21 of the Constitution and Section 198(2) of the Cr.P.C only to the extent that it is applicable to the offence of Adultery under Section 497 IPC.  On 10th October, 2022, Consortium of Religions, an Association registered by some heads of the three major religions in the country filed a Review Petition before the Supreme Court praying for reconsideration of the hurried verdict. The Review Petitioner has prayed for a direction to the Union Government to recast Section 497 IPC removing the anomalies.  The Court admitted the Petition and allowed the oral hearing of the parties.

MEMORIAL ON BEHALF OF RESPONDENT

ISSUES RAISED

ISSUE 1

WHETHER THE REVIEW PETITION FILED BY ‘CONSORTIUM OF RELIGIONS’

ASSOCIATION IS MAINTAINABLE OR NOT?

ISSUE 2

WHETHER DECRIMINALIZING ADULTERY DESTROYS THE SANCTITY OF

MARRIAGE THEREBY VIOLATING THE FREEDOM OF RELIGION OR NOT?

ISSUE 3

WHETHER SECTION 497 OF IPC CLASSIFYING MEN AND WOMEN IN DIFFERENT

PEDESTALS IS VIOLATIVE OF ARTICLE 14 AND 15 OF THE INDIAN

CONSTITUTION OR NOT?

ISSUE 4

WHETHER SECTION 497 OF IPC IS VIOLATIVE OF ARTICLE 21 OF THE INDIAN

CONSTITUTION OR NOT?

ISSUE 5

WHETHER SECTION 497 OF IPC SHOULD BE RECASTED REMOVING ANOMALIES

OR NOT?

MEMORIAL ON BEHALF OF RESPONDENT

SUMMARY OF ARGUEMENTS

1. WHETHER THE REVIEW PETITION FILED BY ‘CONSORTIUM OF

RELIGIONS’ ASSOCIATION IS MAINTAINABLE OR NOT?

It is humbly submitted before this Hon’ble Supreme Court that the Review Petition filed by Consortium of Religions is not maintainable under Art. 137 of the Constitution of India since the petitioner lacks requisite locus standi.

2. WHETHER DECRIMINALIZING ADULTERY DESTROYS THE SANCTITY OF

MARRIAGE THEREBY VIOLATING THE FREEDOM OF RELIGION OR NOT?

It is humbly submitted that decriminalizing adultery does neither destroy the sanctity of marriage nor violates the freedom of religion. Preserving the sanctity of marriage is a collective duty of both the partners and the woman should not hold sole liability.

3. WHETHER SECTION 497 OF IPC CLASSIFYING MEN AND WOMEN IN

DIFFERENT PEDESTALS IS VIOLATIVE OF ARTICLE 14 AND 15 OF THE

INDIAN CONSTITUTION OR NOT?

It is humbly submitted that the section 497 of IPC classifying men and women in different pedestals is violative of article 14 and 15 of the Indian constitution. All persons in similar circumstances shall be treated alike both in privileges and liabilities imposed.

4. WHETHER SECTION 497 OF IPC IS VIOLATIVE OF ARTICLE 21 OF THE

INDIAN CONSTITUTION OR NOT?

It is humbly submitted that section 497 of IPC violates the implicit rights to live with dignity, reputation and privacy as guaranteed under Article 21 of the Indian constitution.

MEMORIAL ON BEHALF OF RESPONDENT

5. WHETHER SECTION 497 OF IPC SHOULD BE RECASTED REMOVING ANOMALIES OR NOT?

It is humbly submitted that there is no necessity to recast the section 497 of IPC irrespective of removing the anomalies. Because, adultery is not a crime, but a civil wrong. Thus, it has been rightly struck down by this court as unconstitutional in its entirety.

MEMORIAL ON BEHALF OF RESPONDENT

ARGUMENTS ADVANCED

1. WHETHER THE REVIEW PETITION FILED BY ‘CONSORTIUM OF

RELIGIONS’ ASSOCIATION IS MAINTAINABLE OR NOT?

[¶1.] It is humbly submitted before this Hon’ble Supreme Court that the Review Petition filed by Consortium of Religions is not maintainable under Art. 137 of the Constitution of India. 1.1. THE PETITIONER LACKS REQUISITE LOCUS STANDI [¶2.] It is humbly submitted that the Consortium of Religions association does not have any relation to the Writ petition filed by Sowmithri. This implies that it is considered to be a non- aggrieved third party to the present case and falls short of requisite locus standi to file a review on the judgment given in the previous case of Sowmithri vs. Union of India.

[¶3.] Locus standi is a Latin maxim which refers to the right or capacity to appear and address the court on a matter. To gain such a right, the litigants must show that they are adversely affected by the impugned action or that their rights have been violated.^1 However, if they do not possess such right, then constructively, the person shall not be allowed to intervene in or initiate legal proceedings and can be considered as third party.

[¶4.] Now, the question as to whether a third party has locus standi in criminal proceedings has been answered by the apex court in the case of State of Kerala vs. R. Balakrishna Pillai.^2 In this case the Hon'ble court observed that "Supreme Court has never recognized locus standi in third parties in criminal law. Allowing third parties to enter the arena of criminal justice would be to destroy institutional perspectives that have been built over the years."^3

[¶5.] Moreover, with respect to a third party’s locus standi in matters of a review petition, the Hon'ble Court has time to time reiterated through several case laws that a third party cannot

(^1) S.P. Sathe, Judicial Activism: The Indian Experience, 6 WASH. U. J. L. & POL’Y 29, 70 (2001) (^2) State of Kerala vs. R. Balakrishna Pillai, [1993] 2 Kerala Series 752 (^3) Rajubhai Dhamirbhai Baria vs. State of Gujarat, 2012 (114) Bom LR 3549

MEMORIAL ON BEHALF OF RESPONDENT

file a review petition.^4 Hence, it is humbly submitted that the Petitioner lacks requisite locus standi to approach this Hon'ble SC through such a review petition.

1.2. THERE IS NO ERROR APPARENT ON THE FACE OF RECORD IN

JUDGMENT

[¶6.] It is humbly submitted that the review petition filed by Consortium of Religions association is not maintainable since the Supreme Court’s judgment was given on merits without any error apparent on the face of record.

[¶7.] A review in criminal proceedings can be sought on the limited ground of error apparent on the face of record. Further, the Order XLVII, Rule 1 of the Supreme Court Rules, 2013 reads as follows: (1) The Court may review its judgment or order, but no application for review will be entertained in a civil proceeding except on the ground mentioned in Order XLVII, rule I of the Code, and in a criminal proceeding except on the ground of an error apparent on the face of the record.

However, it is humbly submitted before this Hon'ble court that no such error has been emphasized or agitated by the Petitioner in the present case.

[¶8.] Further, in the case of Assistant Commissioner of Income Tax, vs. Saurashtra Kutch Stock Exchange Ltd^5 , it was held that "An error apparent on the face of the record means an error which strikes on mere looking and does not need long- drawn-out process of reasoning on points where there may conceivably be two opinions. Moreover, if the view accepted by the Court in the original judgment is one of the possible views, the case cannot be said to be covered by an error apparent on the face of the record.^6

(^4) Satvir Singh vs. Baldeva (1996) 8 SCC 593; Simranjit Singh Mann vs. Union of India (1992) 4 SCC 653; State

of Karnataka vs. T. R. Dhannanjaya (1995) 6 SCC 254 (^5) Assistant Commissioner of Income Tax, vs. Saurashtra Kutch Stock Exchange Ltd, Special civil Application No. 1247 of 2002 (^6) Income Tax officer Ward-5(3)(2), Bangalore vs. Sri Mahesh Suryanarayanan Lingam , Bangalore, MA 172/ BANG/ 2018

MEMORIAL ON BEHALF OF RESPONDENT

[¶9.] Similarly, with regard to the present case, it is explicit from the fact sheet that the Hon'ble SC has already delivered the judgment in the best possible view concerning the best interest of social justice. Because, it acknowledged the 162 year old law as unlawful as it antagonized the dignity of women and violated the articles 14, 15 and 21 of the constitution. Therefore, this case cannot be covered by an error apparent on the face of the record.

[¶10.] Moreover, in the case of Ajit Kumar Rath vs. State of Orissa and Others^7 , it was held that, "a review cannot be claimed for correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing it." However, it is humbly submitted that the judgment of Hon'ble SC did not suffer from any such error as it was clearly pertaining to the provisions of law and natural justice. Hence, the present review petition is not maintainable as there is no such error apparent on the face of record.

1.3. FINALITY OF JUDGEMENT MUST BE RESPECTED

[¶11.] The principle “ Interest republicae ut sit finis litium”^8 elucidates that it is for the public good that there must be an end of litigation after a long hierarchy of appeal. Certainty and continuity are essential ingredients of rule of law. Certainty in the law would be considerably eroded and suffer a serious setback if the highest court of the land readily overrule the views expressed by it in earlier cases even though those views had held the field for a number of years.^9

[¶12.] A departure from the principle of finality can only be justified in circumstances of a substantial and compelling character makes it necessary to do so. A judgment is not reconsidered except “where a glaring omission or patent mistake or like grave error has crept in the earlier decision.”^10

(^7) Ajit Kumar Rath vs. State of Orissa and Others, 1999 (9) SCC 596 (^8) Mr. Arani Mukhopadhyay vs Employees Provident Fund, W. P. No. 15262 (W) of 2018 (^9) Dhruv Tiwari & Anand Vardhan Narayan, “Re-coloring the colored walls of the constitution: a futile judicial exercise of creating the curative petition”, IJLPP 2.2E. (^10) Chandra Kanta v. Sheikh Habib, AIR 1975 SC 1500: (1975) 1 SCC 674; Avtar Singh Sekhon v. UOI, AIR

1980 SC 2041

MEMORIAL ON BEHALF OF RESPONDENT

[¶13.] Thus, permitting the parties to review the concluded judgments of this court by filing repeated interlocutory applications without any error apparent is clearly an abuse of the process of law and would have far reaching adverse impact on the administration of justice.

1.4. VIOLATION OF FUNDAMENTAL RIGHTS CANNOT BE ALLEGED UNDER REVIEW JURISDICTION

[¶14.] The review petitioner has alleged that decriminalizing adultery and striking out section 497 IPC results in violating the freedom of religion. But this is not a proper ground for initiating a review petition since they are considered to be a third party. Even if the Petitioner feels aggrieved they should have a Public Interest Litigation or any other petition for challenging the Constitutionality of Section 497 of IPC for arguing to greater public interest. But they cannot interfere with the judgment given in the case of Sowmithri vs Union of lndia by a Review petition.

[¶15.] Hence, it is humbly submitted that the review petition filed by Consortium of Religions association is not maintainable since the petitioner lacks requisite locus standi and also the judgment was given on merits without any error apparent on the face of record.

MEMORIAL ON BEHALF OF RESPONDENT

2. WHETHER DECRIMINALIZING ADULTERY DESTROYS THE SANCTITY OF

MARRIAGE THEREBY VIOLATING THE FREEDOM OF RELIGION OR NOT?

[¶16.] It is humbly submitted that decriminalizing adultery does neither destroy the sanctity of marriage nor violates the freedom of religion.

2.1. PRESERVING THE SANCTITY OF MARRIAGE IS A COLLECTIVE DUTY OF BOTH THE PARTNERS

[¶17.] By inclusion of the offense of adultery under the chapter titled ‘offenses related to marriage’, it hints at the aspect that the sanctity of marriage is not the one to be preserved by one spouse but it is a collective duty of both of them. But the language of the section discriminates between husband and wife as partners to marriage as ‘husband of another woman’ that is a female partner in adultery is not liable for committing the wrong.

[¶18.] Section 497 seeks to control a woman and her sexuality, making her solely liable for preserving “sanctity of marriage”, while making husband immune from it. Section 497 propagates sex stereotyping based on male and female sex and behavior. The main partner of an “adulterous woman” is liable for prosecution because he has “seduced” the wife of another man. This perpetuates gender disparities and propagates stereotypes that a woman’s virtue is determined by her sexual conduct.

[¶19.] It is acknowledged that adultery is treated as a delinquent act according to many religions. That is the reason why ‘adultery’ still exists to be a ground for divorce in India. However, the same cannot be brought into a criminal perspect because; the section 497 itself has loopholes that affect religious beliefs. The reasons are as follows.

[¶20.] Firstly, while it has been said that the ostensible object of Section 497 is to protect and preserve the sanctity of marriage, however, the Section 497 does not penalize a husband if he has sexual intercourse with an unmarried woman, or a widow or even a Transgender. Though the sanctity of marriage is broken in such a situation, the law (Section 497) does not recognize it. Secondly, if the husband “consents”, then intercourse of a man with that husband’s wife is not Adultery. This too is inimical to the sanctity of marriage. In the case of Joseph Shine vs.

MEMORIAL ON BEHALF OF RESPONDENT

Union of India ,^11 the court rightly observed that, if the husband consents or connives at such sexual intercourse, the offense is not committed, thereby showing that it is not sanctity of marriage which is sought to be protected and preserved, but a proprietary right of a husband.

2.2. CRIMINALIZING ADULTERY IS NOT A DETERRENT

[¶21.] It is submitted that if a state is trying to foster the interests of specific deceived spouses by its laws criminalizing adultery, it is impossible to believe that a criminal penalty imposed on one of the spouses would somehow benefit a marriage instead of representing the final nail in its coffin. And if deterrence of adultery is the goal, then the state's failure to and prosecute offenders has long since removed any fear of legal sanction.

[¶22.] It is hard to anticipate a general and special deterrence effect for adultery from the perspective of criminal policy as it loses the function of regulating behaviour. In the case of S. Khushboo vs. Kanniammal & Anr.^12 , it was held that, though adultery may be considered as a moral wrong, it cannot be treated as a criminal offence. Hence, if the parties to the marriage have lost that moral commitment, the marriage will fail, and punishment meted out to a third party is unlikely to change that.

[¶23.] In the case of James Sibongo vs. Lister Lutombi Chaka and Anr^13 , the Supreme Court of Namibia, in an instructive judgment decriminalising adultery, went into whether the criminal offence of adultery would protect marriages and reduce the incidence of adultery. It spotlighted the following considerations. If deterrence is the main purpose, one would have thought that this could better be achieved by retaining the imposition of criminal sanctions or by the grant of an interdictin favour of the innocent spouse against both the guilty spouse and the third party to prevent future acts of adultery…firstly, that an interdict against the guilty spouse is not possible because he or she commits no delict. Secondly, that as against a third party — ‘it interferes with, and restricts the rights and freedom that the third party ordinarily has of using and disposing of his body as he chooses;... it also affects the relationship of the third party with the

(^11) Joseph Shine vs. Union of India, W.P(Crl) NO. 194 OF 2017

(^12) S. Khushboo vs. Kanniammal & Anr , Crl. Appeal no. 913 of 2010 (^13) James Sibongo vs. Lister Lutombi Chaka and Anr , Case No. SA77-14) (19.08.2016)

MEMORIAL ON BEHALF OF RESPONDENT

claimant's spouse, who is and cannot be a party to the interdict, and therefore indirectly interferes with, and restricts her rights and freedom of, using and disposing of her body as she chooses‘ In addition the deterrence argument seems to depart from the assumption that adultery is the cause of the breakdown of a marriage, while it is now widely recognised that causes for the breakdown in marriages are far more complex. Quite frequently adultery is found to be the result and not the cause of an unhappy marital relationship. Conversely stated, a marriage in which the spouses are living in harmony is hardly likely to be broken up by a third party.”

[¶23.] Adultery is more of a social and civil offense and depicts a more arbitrary and infidelity of trust not only the spouse but the whole family. Adultery is a consequence of the collapse of faith and conscience in a relationship and requires corrective action rather than penalization. The sanctions imposed by the laws can bring relief to the injured party for a short time, but destroys the sanctity of marriage and ruins family life in the long term.

2.3. NOTION OF MARITAL SERVITUDE

[¶24.] The sexuality of a woman is part of her inviolable core; neither the state nor the institution of marriage can disparage it. But the section 497 of IPC is destructive and deprives a woman of her agency, autonomy and dignity as it chains the woman to antediluvian notions of sexuality.

[¶25.] Moreover, the effect of Sec. 497 is to allow the sexual agency of a married woman to be wholly dependent on the consent or connivance of her husband. Far from being an equal partner in an equal relationship, she is subjugated entirely to the will of her spouse. Sec. 497 is based on the understanding that marriage submerges the identity of the woman, based on a notion of marital subordination. Thus, a woman's 'purity' and a man's marital 'entitlement' to her exclusive sexual possession may be reflective of the antiquated social and sexual mores of the nineteenth century, but is not relevant to the contemporary perspective where men and women in marriage are conferred equal rights and liabilities.

MEMORIAL ON BEHALF OF RESPONDENT

[¶26.] In the case of Payal Sharma vs. Superintendent, Nari Niketan Kalindri Vihar, Agra 14 , the court had observed: “A woman who is a major has a right to go anywhere and live with anyone she likes without getting married. This may be regarded immoral by society but it is not illegal. There is a difference between law and morality.”

[¶27.] Thus, Sec. 497 disregards the sexual autonomy which every woman possesses as a necessary condition of her existence. Implicit in seeking to privilege the fidelity of women in a marriage is the assumption that a woman contracts away her sexual agency when entering a marriage. Such a notion has no place in the constitutional order.

(^14) Payal Sharma vs. Superintendent, Nari Niketan Kalindri Vihar, Agra, C.M.H.C.W.P. Appeal No. 16876 of 2001

MEMORIAL ON BEHALF OF RESPONDENT

3. WHETHER SECTION 497 OF IPC CLASSIFYING MEN AND WOMEN IN

DIFFERENT PEDESTALS IS VIOLATIVE OF ARTICLE 14 AND 15 OF THE

INDIAN CONSTITUTION OR NOT?

[¶28.] It is humbly submitted that the section 497 of IPC classifying men and women in different pedestals is violative of article 14 and 15 of the Indian constitution. Art. 14 guarantees equality and equal protection before law. It strikes at arbitrary state action, both administrative and legislative. All persons in similar circumstances shall be treated alike both in privileges and liabilities imposed.^15

3.1. THE SECTION 497 OF IPC FAILS THE TEST OF REASONABLE

CLASSIFICATION

[¶29.] In India, In India, the Supreme Court of India has laid down the twin test for reasonable classification^16 and held that for the classification to pass the test, two conditions must be fulfilled:

i. Classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and

ii. The differentia must have a rational relation to the object sought to be achieved by the Act.

[¶30.] Section 497 of IPC makes an irrational classification between man and women and unjustifiably denies women the right which is given to men under the following grounds

(1) Section 497 confers upon the husband the right to prosecute the person who has committed adultery with her wife but, it does not confer any right upon the wife to prosecute the woman with whom her husband has committed adultery.

(^15) John Vallamattom v.UOI, Writ Petition (Civil) 242 Of 1997 (^16) Shri Ram Krishna Dalmia vs Shri Justice S. R. Tendolkar, 1958 AIR 538, 1959 SCR 279; D.S. Nakara & Others vs Union Of India, 1983 AIR 130, 1983 SCR (2) 165

MEMORIAL ON BEHALF OF RESPONDENT (2) Section 497 of Indian Penal Code does not take in cases where the husband has sexual relations with an unmarried woman, with the result that husbands have, as it were, a free license under the law to have extra-marital relationship with unmarried women.

[¶31.] Section 497 of the Indian Penal Code is arbitrary in nature since it confers upon the husband the right to deal with the wife on his own terms, which at times could even be disproportionate and excessive. In the case of Shayara Bano vs. Union of India and Ors.^17 , the court observed that “The thread of reasonableness runs through the entire fundamental rights chapter. What is manifestly arbitrary is obviously unreasonable and being contrary to the rule of law, would violate Article 14.”

[¶32.] The provision protects one of the women saying she is the victim to the crime as it is committed upon her but doesn’t provide for any safeguard to a woman who has faced the repercussion of such a crime being committed by her husband. It makes the provision illogical and cannot be justified by saying that it is made to protect women, as it does not really offer women any protection. It only classifies women as a man’s property and safeguards the right of a man to his wife. Therefore, the Section does not make a reasonable classification and hence, is in violation of Article 14 of the Constitution.

3.2. SECTION 497 OF IPC IS VIOLATIVE OF ARTICLE 15 OF THE

CONSTITUTION

[¶33.] The Article 15(1) prohibits the State from discriminating on grounds of sex. The section 497 of IPC is violative of article 15 since it is archaic and discriminates against women on the ground of sexual autonomy and romantic paternalism.

[¶34.] A husband is considered an aggrieved party by the law if his wife engages in sexual intercourse with another man, but the wife is not, if her husband does the same. Viewed from this angle, the offense of adultery discriminates between a married man and a married woman to her detriment on the grounds of sex only. The provision is discriminatory and therefore, violative of Article 15(1).

(^17) Shayara Bano vs. Union of India and Ors., W.P(C) No. 118 of 2016

MEMORIAL ON BEHALF OF RESPONDENT

[¶35.] It is enunciated that this provision is beneficial for women, which is saved by Article 15(3). Article 15(3) was inserted to protect the women from patriarchy, pull them out of suppression and to bring them equal to men. But Section 497 is not protective discrimination but grounded in patriarchy and paternalism due to the following reasons.

 It miserably fails in protecting the interest of the spouse of the adulterer. If the adulterer is the husband, the wife has no right to prosecute the adulterous husband or the woman with whom the husband has indulged in sexual intercourse with which is of no benefit to women and hence fails to satisfy the objective behind Article 15(3) of the Constitution  A married man who has an affair with an unmarried woman is not prosecutable under the existing adultery law while the same man who indulges in such activity with a married woman would be at the risk of facing a prosecution. There exists an inequality in the treatment being meted out depending upon the marital status of the woman.

[¶36.] Hence, a provision like section 497 of IPC which perpetuates gender stereotypes will be bad for discrimination on grounds of sex, will fall foul of Article 15 (1).^18

[¶37.] Thus, section 497 of IPC classifying men and women in different pedestals is not justifiable and is violative of article 14 and 15 of the Indian constitution.

(^18) Navtej Singh Johar vs. Union of India, AIR 2018 SC 4321; W. P. (Crl.) No. 76 of 2016

MEMORIAL ON BEHALF OF RESPONDENT

4. WHETHER SECTION 497 OF IPC IS VIOLATIVE OF ARTICLE 21 OF THE INDIAN

CONSTITUTION OR NOT?

[¶38.] It is humbly submitted that section 497 of IPC violates the following implicit rights guaranteed under Article 21 of the Indian constitution. 4.1. RIGHT TO LIVE WITH DIGNITY

[¶39.] Dignity of the individual is a facet of Article 21. Section 497 effectually curtails the essential dignity which a woman is entitled to have by creating invidious distinctions based on gender stereotypes which creates a dent in the individual dignity of women. Besides, the emphasis on the element of connivance or consent of the husband tantamount to the subordination of women. Therefore, the same offends Article 21.

[¶40.] Moreover, the section 497 denudes a woman of her sexual autonomy in making its free exercise conditional on the consent of her spouse. In doing so, it perpetuates the notion that a woman consents to a limited autonomy on entering marriage. The enforcement of forced female fidelity by curtailing sexual autonomy is an affront to the fundamental right to dignity and equality,

4.2. RIGHT TO REPUTATION

[¶41.] In the cases of Francis Coralie vs. Union Territory and Board of Trustees^19 and Port of Bombay vs. Nadkarni^20 , the Hon’ble Court held that the right to life also includes the right to reputation. Relying upon these decisions, it is contended that if the outcome of a trial is likely to affect the reputation of a person adversely, he or she ought to be entitled to appear and be heard in that trial. If any law which does not confer upon such a person the right of being heard is violative of Article 21. As section 497 of Indian Penal Code does not contain a provision that the women must be impleaded as a necessary party to the prosecution or that

(^19) Francis Coralie vs. Union Territory and Board of Trustees , 1981 AIR 746, 1981 SCR (2) 516 (^20) Port of Bombay vs. Nadkarn, W. P. No.3958 (W) of 2010

MEMORIAL ON BEHALF OF RESPONDENT

she would be entitled to be heard, the section is violative of Article 21 of the Indian Constitution.

4.3. RIGHT TO PRIVACY AND RIGHT TO CHOOSE

[¶42.] This Court has recognized sexual privacy as a natural right, protected under the Constitution. Sharing of physical intimacies is a reflection of choice.^21 To "shackle" sexual freedom of a woman and allow criminalization of consensual relationships is a denial of right of sexual privacy and considering a citizen as a property of other is an "anathema" to ideal of dignity.^22

[¶43.] In the case of Shafin Jahan vs. Asokan K .M. & Ors.^23 , the hon’ble Court observed that each individual is guaranteed the freedom in determining the choice of one’s partner, and any interference by the State in these matters would have a serious chilling effect on the exercise of the freedoms guaranteed by the Constitution. Moreover in the case of Anuj Garg vs. Hotel Association of India^24 , the hon’ble SC held that personal autonomy includes both the negative right of not to be subject to interference by others and the positive right of individuals to make decisions about their life, to express themselves and to choose which activities to take part in.

[¶44.] Hence, subjecting interpersonal relationships to the severity of criminal law would amount to an intrusion into the right to privacy and other implicit rights guaranteed under Article 21 of the Indian Constitution

(^21) W. Kalyani v. State, Crl. appeal NO. 2232 OF 2011 (^22) Joseph Shine vs. Union of India, W.P(Crl) NO. 194 OF 2017

(^23) Shafin Jahan vs. Asokan K .M. & Ors, Crl Appeal No. 366 OF 2018

(^24) Anuj Garg vs. Hotel Association of India, AIR 2008 SC 663