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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 PETITIONERS

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

TEAM CODE: MUKHTAR

MEMORIAL ON BEHALF OF PETITIONERS 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 …………………………….……...……..…………….…..1 2

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

1.1. THE PETITIONER HAS THE REQUISITE LOCUS STANDI EVEN BEING A THIRD PARTY

1.2. THERE IS ERROR APPARENT ON THE FACE OF RECORD IN THE JUDGMENT LEADING TO MISCARRIAGE OF JUSTICE

1.3. THE DECISION IS GIVEN “PER INCURIAM”

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

2.1. ANCIENT CIVILISATIONS AND RELIGIONS OF INDIAN SOCIETY TREAT ADULTERY AS AN UNPARDONABLE SIN

2. 2. DECRIMINALIZING ADULTERY UNDERMINES THE INSTITUTION OF MARRIAGE

2.3. EXCEPTION OF CONNIVANCE NEITHER AFFECTS THE SANCTITY NOR THE OBJECT OF SECTION

2. 4. INTENT OF SECTION 497 IPC IS TO DETER CRIME

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 CONCEPT OF ‘ROMANTIC PATERNALISM’ IN SECTION 497 OF IPC IS NOT IRRATIONAL

3.2. SECTION 497 OF IPC IS IN ACCORDANCE TO ARTICLE 15(3) OF THE CONSTITUTION

MEMORIAL ON BEHALF OF PETITIONERS

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

4.1. THE LAW DOES NOT INVADE RIGHT TO REPUTATION AND PRIVACY

4.2. RIGHT TO PERSONAL CHOICE IS LIMITED WITHIN THE MARRIAGE

4.3. SECTION 497 OF IPC DOES NOT VIOLATE NATURAL JUSTICE PRINCIPLE 4.4. PUNISHMENT IS A PROCEDURE ESTABLISHED BY LAW

ISSUE 5 : WHETHER SECTION 497 OF IPC SHOULD BE RECASTED REMOVING

ANOMALIES OR NOT? ....................................................................................................... 26

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

MEMORIAL ON BEHALF OF PETITIONERS 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 PETITIONERS

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 PETITIONERS

INDEX OF AUTHORITIES

CASES

1. Bangalore Medical Trust vs. B.S. Muddappa,1991(4) SCC 54
2. M.S. Jayaraj vs. Commissioner of Excise, Kerala, (2000) 7 SCC 552
3. Union of India vs. Nareshkumar Badrikumar Jagad & Others, Review Petition (C) D. No. 40966 of 2013
4. The High Court of judicature at Patna and Anr. vs. Rakesh Kumar, Civil Review No. 153 of 2015
5. Rattiram & Ors vs State Of M.P.Tr.Insp.Of Police, Crl. Appeal No. 223 OF 2008
6. Yusuf Abdul Aziz vs. The State Of Bombay, 1954 AIR 321, 1954 SCR 930
7. Sowmithri Vishnu vs. Union Of India & Anr, 1985 AIR 1618, 1985 SCR Supl. (1) 741
8. V. Revathi vs. Union Of India &Ors, 1988 AIR 835, 1988 SCR (3) 73
9. Commissioner of Police vs. Acharya Jagadishwarananda Avadhuta, (2004) 12 SCC 770, 782: AIR 2004 SC 2984
10. The Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt,1954 AIR 282, 1954 SCR 1005
11. Tekait Mon Mohini Jemadai vs Basanta Kumar, (1901) ILR 28 Cal 751
12. Indra Sarma v. V.K.V. Sarma, AIR 2014 SC 309
13. Dawood and another vs. Minister of Home Affairs and others, 2000 (3) SA 936 (CC)
14. Shri Ram Krishna Dalmia vs Shri Justice S. R. Tendolkar, 1958 AIR 538, 1959 SCR 279
15. D.S. Nakara & Others vs Union Of India, 1983 AIR 130, 1983 SCR (2) 165
16. Ameerunnisa Begumand ors. vs. Mahboob Begum, AIR 1956 SC 91
17. Dattatraya Motiram More vs. State of Bombay, AIR 1953 Bombay 311
18. Shamsher Singh vs. State of Punjab, AIR 1970 P&H 372
19. Rajagopal vs. State of T.N., AIR 1991 SC 207
20. Syndicate Bank vs General Secretary Syndicate Bank , Appeal (civil) 4263 of 1999

MEMORIAL ON BEHALF OF PETITIONERS

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 PETITIONERS

STATEMENT OF JURISDICTION

The Petitioners humbly submits this memorandum before the Hon’ble Supreme Court of India 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 PETITIONERS

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 PETITIONERS

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 PETITIONERS

SUMMARY OF ARGUMENTS

1. WHETHER THE REVIEW PETITION FILED BY ‘CONSORTIUM OF

RELIGIONS’ ASSOCIATION IS MAINTAINABLE OR NOT?

It is humbly submitted that the review petition is maintainable since the petitioner has requisite locus standi and there is an error apparent on the face of record in the judgment of the Hon’ble SC.

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

It is humbly submitted that repealing section 497 of IPC and not making adultery as a crime destroys the sanctity of marriage thereby violating the freedom of religion as guaranteed under article 25 of the Indian constitution.

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 not violative of articles 14 and 15 of the Indian constitution since it is in accordance to article 15(3). Moreover the provision also clears the test of reasonable classification.

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 is not violative of Article 21 of the Indian constitution and it is in accordance to the procedure established by law. Also, none of the above implicit rights are absolute and are subject to reasonable restrictions and actions may be lawfully taken for the prevention of crime or disorder or protection of health or morals or protection of rights and freedom of others.

MEMORIAL ON BEHALF OF PETITIONERS

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

It is humbly submitted that the section 497 of IPC should be recasted by removing anomalies but should not be abrogated. Because the ultimate aim is to bring back adultery as a "crime" as decriminalizing adultery can lead to chaos and result in destroying societal progress. So if the court is of the view that any part of the section 497 IPC inadequate or violative of the constitutional provisions, then that part alone should be read down rather than repealing the entire law.

MEMORIAL ON BEHALF OF PETITIONERS

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 association is maintainable under Art. 137 of the Constitution of India read with Order XLVII, Rule 1 of the Supreme Court Rules, 2013

1.1. THE PETITIONER HAS THE REQUISITE LOCUS STANDI EVEN BEING A THIRD PARTY [¶2.] Locus standi is a Latin maxim which refers to the right or capacity to appear and address the court on a matter. The traditional rule was that only people whose rights have been infringed or suffered can file a petition. But the Supreme Court has now considerably relaxed this rule in various case laws.

[¶3.] In the case of Bangalore Medical Trust vs. B.S. Muddappa ,^1 the Hon’ble Court held that one cannot be ignored or overlooked on a technical or conservative yardstick of the rule of locus standi in the absence of personal loss or injury. Also, in the case of M.S. Jayaraj vs. Commissioner of Excise, Kerala^2 , the court has concluded that "it cannot be said that the petitioners are not aggrieved persons and as such they cannot maintain the petitions". Thus, the spectacular expansion on the concept of locus standi is much wider and it takes in its stride anyone who is not a mere busybody.

[¶4.] Further in the case of Union of India vs. Nareshkumar Badrikumar Jagad & Others ,^3 the Hon'ble SC held that "we have no hesitation in enunciating that even a third party to the proceedings, if he considers himself an aggrieved person may take recourse to the remedy of review petition. The quintessence is that the person should be aggrieved by the judgment and order passed by this Court in some respect.

(^1) Bangalore Medical Trust vs. B.S. Muddappa,1991(4) SCC 54 (^2) M.S. Jayaraj vs. Commissioner of Excise, Kerala, (2000) 7 SCC 552 (^3) Union of India vs. Nareshkumar Badrikumar Jagad & Others, Review Petition (C) D. No. 40966 of 2013

MEMORIAL ON BEHALF OF PETITIONERS

[¶5.] Similarly, in the present case, the review petitioner ‘Consortium of Religions’ association has been aggrieved by this judgment since adultery is one of the most ancient sins which every religion has condemned and decriminalizing it will result in violating freedom of religion.

[¶6.] Moreover, it is to be noted that the review petitioner has approached the Hon'ble SC under Order XLVII, Rule 1 of the Supreme Court Rules, 2013 which does not limit the remedy of review only to the parties to the judgment under review. Therefore, the ‘Consortium of Religions’ even being a third party to the proceedings, by considering itself as an aggrieved can take recourse to the remedy of review petition for recasting of section 497 IPC. Hence, anyone considering themselves “aggrieved" would have locus to file a review petition.

1.2. THERE IS ERROR APPARENT ON THE FACE OF RECORD IN THE

JUDGMENT LEADING TO MISCARRIAGE OF JUSTICE

[¶7.] It is humbly submitted that in order to exercise the review jurisdiction under the Article 137, there has to be an error apparent on the face of record leading to miscarriage of justice. In the case of The High Court of judicature at Patna and Anr. vs. Rakesh Kumar^4 , the Hon’ble bench stated that, “it is not uncommon for the court to be invited to decide if its order, decision or judgment suffers from any such error, which calls for review of the order, decision or judgment, as the case may be. Therefore, if any review petition is made, the court shall consider the review petition gracefully and with an open mind so that no miscarriage of justice is caused.” Adherence to any faulty decision would result in miscarriage of justice and in such cases, nothing can prevent a court from rectifying its error, because the maxim ‘actus curiae neminem gravabit’^5 can be invoked, in such a case for correcting the error committed by the court.

[¶8.] In the present case, the hon’ble supreme court’s decision of striking down section 497 of IPC and decriminalizing adultery creates a chaos and far reaching impact on the institution of marriage and society at large. The miscarriage of justice found in this decision is that it has overlooked the practicality of adultery not being a crime in the society. This could rampantly

(^4) The High Court of judicature at Patna and Anr. vs. Rakesh Kumar, Civil Review No. 153 of 2015 (^5) ‘actus curiae neminem gravabit’- The act of court shall prejudice no man.

MEMORIAL ON BEHALF OF PETITIONERS

be used as a weapon by the bad elements for their own vested interest in weakening the institution of marriage and encouraging the morale of those engaged in such offense.

1.3. THE DECISION IS GIVEN “PER INCURIAM”

[¶9.] The term “per incuriam” literally means ‘through lack of care. A decision can be said to be given per incuriam when the court has acted in ignorance of any previous decision of its own.^6 Prior to this judgment, the Supreme Court has itself righteously rejected various pleas for decriminalization of Adultery laws in India. While the present judgment held section 497 of IPC to be violative of Articles 14, 15 and 21, there are previous decisions of this court which justified the same section not being violative of such articles.

[¶10.] The Supreme Court in these cases observed that Article 14 is general and must be read with the other provisions which set out the ambit of fundamental rights. Sex is a sound classification and although there can be no discrimination in general on that ground, the Constitution itself provides for special provisions in the case of women and children. Article 14 and 15(3) read together validate the impugned clause in the section of the IPC.^7

[¶11.] Therefore, in consideration of all the above grounds, it is humbly submitted that the Review Petition filed by COR is maintainable.

(^6) Rattiram & Ors vs State Of M.P.Tr.Insp.Of Police, CRIMINAL APPEAL NO. 223 OF 2008

(^7) Yusuf Abdul Aziz vs. The State Of Bombay, 1954 AIR 321, 1954 SCR 930; Sowmithri Vishnu vs. Union Of India & Anr, 1985 AIR 1618, 1985 SCR Supl. (1) 741; Revathi vs. Union Of India &Ors, 1988 AIR 835, 1988 SCR (3) 73

MEMORIAL ON BEHALF OF PETITIONERS

2. WHETHER DECRIMINALIZING ADULTERY DESTROYS THE SANCTITY OF

MARRIAGE THEREBY VIOLATING THE FREEDOM OF RELIGION OR NOT?

[¶12.] It is humbly submitted that repealing section 497 of IPC and not making adultery as a crime destroys the sanctity of marriage thereby violating the freedom of religion as guaranteed under article 25 of the Indian constitution.

2.1. ANCIENT CIVILISATIONS AND RELIGIONS OF INDIAN SOCIETY TREAT ADULTERY AS AN UNPARDONABLE SIN

[¶13.] The crime of Adultery is considered a sin in almost all the religions. It has been given an extensive treatment in Indian religious texts. The definition and chastisement for adultery may differ in different religious convictions, civilizations and legal systems but the basic theme remains the same and points towards betrayal and violation of nuptial promises.

[¶14.] In the biblical texts, adultery is forbidden by the Seventh Commandment in the Hebrew Bible.^8 The adultery between a man and a married woman carries the death punishment. For the record, anyone found guilty of adultery with a woman other than his own wife will be executed absolutely. In Islam, the premarital or extramarital unlawful sexual relations are referred to as “zina” in Arabic and it has been linked to a number of circumstances and penalties. In Hinduism, the ancient scriptures provide a wide range of views on adultery. Manusmriti provided for punishment for those addicted to intercourse with other men’s wives by punishment which caused terror, followed by banishment.

[¶15.] The protection guaranteed under Article 25 and 26 of the Indian Constitution is not confined to matters or beliefs but extends to acts done in pursuance of religion and, therefore contains a guarantee for rituals, ceremonies observances and modes of worship which are essential or integral part of the religion.^9 From the above lines of religious text, an interference can be drawn that in an Indic perspective, ‘marriage’ is considered to be ‘sacramental union’ which falls under the purview of an act done in pursuance of religion.

(^8) Book of Exodus passage Exodus 20:12. (^9) Commissioner of Police vs. Acharya Jagadishwarananda Avadhuta, (2004) 12 SCC 770, 782: AIR 2004 SC 2984

MEMORIAL ON BEHALF OF PETITIONERS

[¶16.] Moreover, the test to determine whether a part or practice is essential to a religion is to find out whether the nature of the religion will be changed without that part or practice. If the taking away of that part or practice could result in fundamental change in the character of that religion or in its belief, then such part could be treated as an essential or integral part. What constitutes an integral part or essential part of religion has to be determined with reference to the doctrines^10 , practices, tenets, historical background,etc of the given religion.

[¶17.] Similarly, with regard to marriage, a there are several references about its importance ancient religious texts. Also, this ritual has been considered as a sacred bird due to its rich and deep rooted involvement in the cultural and religious traditions. Therefore, the ritual of marriage tantamount to being an “essential religious practice” and the act of decriminalizing adultery creates a chaos to its morality and causes fundamental change to its belief.

2.2. DECRIMINALIZING ADULTERY UNDERMINES THE INSTITUTION OF MARRIAGE

[¶18.] A marriage in Indian society is understood as a sacrament^11 and a purificatory ritual in all religions. It is a contract but it is also a sacred covenant.The institutions of marriage and the family are important social institutions that provide for the security, support and companionship of members of our society and bear an important role in the rearing of children. It gives rise to moral and legal obligations, particularly the reciprocal duty of support placed upon spouses and their joint responsibility for supporting and raising children born of the marriage.

[¶19.] In the case of Indra Sarma vs. V.K.V. Sarma ,^12 , the court observed that,

“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

(^10) The Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt,1954 AIR 282, 1954 SCR 1005 (^11) Tekait Mon Mohini Jemadai vs Basanta Kumar, (1901) ILR 28 Cal 751

(^12) Indra Sarma v. V.K.V. Sarma, AIR 2014 SC 309

MEMORIAL ON BEHALF OF PETITIONERS

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.^13

[¶20.] While the aim of the institution of marriage is to protect the society from foulness and un-chastity, decriminalizing an offense like adultery is bound to have a far-reaching impact upon marriages in India, the adverse fallout cannot be ignored. It can pave the way for rise in divorce rates and cases of marital infidelity critically endangering the institution of marriage.

[¶21.] In a survey conducted by Ashley Madison^14 in India, it was revealed that 76% of Indian women and 61% of Indian men don't think that infidelity is a sin or immoral. This leads to a fear that this chaos in sexual morality would undermine the institution of marriage and increase the birth of illegitimate children leading to discontent in the society.

[¶22.] Thus, adultery not only runs 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. Moreover, in 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, it cannot do away with a crime which undermines the same legally recognised institution.

2.3. EXCEPTION OF CONNIVANCE NEITHER AFFECTS THE SANCTITY NOR THE OBJECT OF SECTION

[¶23.] Criminal intercourse with a married woman tended to adulterate the issues or children being born out of such a relation, thereby burdening the woman's husband to support and provide for another man's children. The purity of bloodline of the children born out of such adulterous relationships is lost, and the chain of inheritance (of property) gets altered due to such relations.

[¶24.] It was to prevent this mischief of altering the chain of inheritance that section 497 IPC was introduced. The idea was to secure the reason behind marriage (i.e. to ascertain the purity of a child), so that inheritance is not altered but remains with the husband of the woman concerned.

(^13) Dawood and another v. Minister of Home Affairs and others, 2000 (3) SA 936 (CC)

(^14) Ashley Madison survey,( 2015 )

MEMORIAL ON BEHALF OF PETITIONERS

[¶25.] This is the reason why Section 497 of IPC does not punish a man for having sex with another man's wife with the connivance of the woman's husband, since in that case, the husband is expected to have full knowledge of the parentage of the child being born out of such mating and will not be cheated into tending to and providing for the offspring of another man.

2.4. INTENT OF SECTION 497 IPC IS TO DETER CRIME

[¶26.] Deterrence is the theory that criminal penalties do not just punish violators, but also discourage other people from committing similar offenses. The notion behind this theory is 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. Similarly, the intention behind criminalizing adultery is to deter the adulterer from committing such a crime again.

[¶27.] 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 relationship with one of the spouses subject to the rider that the erring 'man' alone can be punished and not the erring woman. 15

[¶28.] Even in punishing the offense, the law clearly takes cognizance to preserve marriage and parties to it and punishes the outsider. Thus, the penal nature of adultery acts as a deterrence to corrosion of this institution and instills public morality in the society. This depicts that the law of Adultery works as a shield to deter crime more than a sword to punish offenders.

[¶29.] Laws laying down sexual normative behavior have posed a lot of concerns with respect to the individual liberty of a person in the society. Considering the fact that sex is the basic want of human beings and its urge is so dire in nature that it has to be controlled by various social means, such as law, religion, morals, customs, public opinions, etc.

[¶30.] But parallelly it becomes necessary to inquire what should be the limits of permissible sexual behavior and how the State should react if the limits are violated. Eventually this has (^15) V. Revathi vs. Union of India & Ors 1988 AIR 835, 1988 SCR (3) 73

MEMORIAL ON BEHALF OF PETITIONERS

been the reason why section 497 is considered by the Legislature as an offense against the sanctity of the matrimonial home and therefore those men who defile that sanctity should be brought within the net of the law. But, if it is turned merely into a civil offense, 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.^16

[¶31.] Therefore, it is humbly submitted that repealing section 497 of IPC and not making adultery as a crime destroys the sanctity of marriage thereby violating the freedom of religion as guaranteed under article 25 of the Indian constitution.

(^16) ibid

MEMORIAL ON BEHALF OF PETITIONERS

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?

[¶32.] It is humbly submitted that the section 497 of IPC classifying men and women in different pedestals is not violative of article 14 and 15 of the Indian constitution. Article 14 guarantees equality and equal protection before law. But, this principle of equality does not mean that every law must have universal application to all persons who are not by nature, attainment or circumstances in the same position. 3.1. THE CONCEPT OF ‘ROMANTIC PATERNALISM’ IN SECTION 497 OF IPC IS NOT IRRATIONAL

[¶33.] The section 497 of IPC is designed in such a way that a man obtains both right to prosecute and bear culpability. However, the section does not hold such applicability in case of women. Because, if one side of the woman (wife of adulterer) gets a right to prosecute, the other women who is a ‘victim’ will be at the risk of punishment. Even though Section 497 of IPC does not contain a specific provision for hearing the married woman who faced repercussions, that does not justify the proposition that she is not entitled to be heard at the trial, if she makes an application to the court to that effect. Thus, this reverse discrimination in 'favour' of the woman rather than 'against' her.^17

[¶34.] This reverse discrimination undoubtedly clears the test of reasonable classification making section 497 IPC not violative of Article 14. In India, the Supreme Court of India has laid down the twin test for reasonable classification^18 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.

(^17) Sowmithri Vishnu vs. Union Of India & Anr, 1985 AIR 1618, 1985 SCR Supl. (1) 741 (^18) 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 PETITIONERS

It was further stated that such classification made by the law should have a reasonable nexus with the object which the Legislature seeks to achieve.

[¶35.] The legislature’s intent with regard to section 497 of IPC which excludes women as offender or abettor is that- it has an obligation to make laws distinguishing and classifying persons and things upon which its laws are to operate in order to deal with diverse problems resulting from an infinite variety of human relations. In the case of Ameerunnisa Begum vs. Mahboob Begum ,^19 the Supreme Court held that the legislature has to deal with diverse problems arising out of an infinite variety of human relations and must necessarily have the power of making special laws to attain particular objects. Hence, Article 14 recognizes “women” as a class different from men.

[¶36.] The equal protection of laws guaranteed by Article 14 does not always mean that all laws must be general in character. It does not mean that the same laws should apply to all persons. In fact, identical treatment in unequal circumstances would amount to inequality. Therefore for the society to progress a reasonable classification is necessary.

3.2. SECTION 497 OF IPC IS IN ACCORDANCE TO ARTICLE 15(3) OF THE CONSTITUTION

[¶37.] Sex is a sound classification and although there can be no discrimination in general on that ground, the Constitution itself provides for special provisions in the case of women and children. The two articles i.e, Articles 14 and 15 read together validate the impugned clause in section 497 of the Indian Penal Code.

[¶38.] There is no denying the fact that women in India have made considerable progress since independence but yet they have to struggle against many handicaps and social evils in the male dominated society. The recent data released by NCRB^20 shows that the crime against women rose by 15.3 per cent in 2021 from the previous year, with 4,28,278 cases registered in 2021 following 3,71,503 cases in 2020. Hence, women are mistreated in various spheres of life across religions, regions and communities. Thus, protecting them by different legislations and provisions as a positive discrimination upholds social justice.

(^19) Ameerunnisa Begumand ors. vs. Mahboob Begum, AIR 1956 SC 91 (^20) National Crime Records Bureau, crime against women data(2021 )

MEMORIAL ON BEHALF OF PETITIONERS

[¶39.] It is submitted that, by virtue of Art. 15 (3) of the Indian constitution, the state is permitted to make any special provision for women, departing from Art. 15 (1). The Article 15 (3) states:

“Nothing in this Article shall prevent the State from making any special provision for women and children.

Hence, the meaning of Article 15 (3) of the Constitution would be that a special provision in favor of women would be valid even if it is an implied discrimination against men. 21

[¶40.] In the case of Yusuf Abdul Aziz vs. State of Bombay 22 , the Hon’ble SC observed that "What led to this discrimination in this country is not the fact that women had a sex different from that of men, but that women in this country were so situated that special legislation was required in order to protect them, and it was from this point of view that one finds in Sec. 497, a position in law which takes a sympathetic and charitable view of the weakness of women in this country."

[¶41.] Moreover, in the case of Shamsher Singh vs. State of Punjab^23 , it was held that if a particular provision falls squarely within the ambit of Art. 15 (3), it cannot be struck down merely because it may amount to discrimination solely on the basis of sex. Hence, the immunity granted to women from being prosecuted under section 497 is not discriminatory but valid under Article 15 (3) of the Constitution.

[¶42.] Hence, it is humbly submitted that the section 497 of IPC classifying men and women in different pedestals is not violative of article 14 and 15 of the Indian constitution.

(^21) Dattatraya Motiram More vs. State of Bombay, AIR 1953 Bombay 311 (^22) Yusuf Abdul Aziz vs. The State Of Bombay, 1954 AIR 321, 1954 SCR 930 (^23) Shamsher Singh vs. State of Punjab, AIR 1970 P&H 372

MEMORIAL ON BEHALF OF PETITIONERS

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

CONSTITUTION OR NOT?

[¶43.] It is humbly submitted that section 497 of IPC is not violative of Article 21 of the Indian constitution and it is in accordance to the procedure established by law.

4.1. THE LAW DOES NOT INVADE RIGHT TO REPUTATION AND PRIVACY

[¶44.] It is humbly submitted that the state does not interfere in the private matters of parties to the marriage. Also, no court can take cognizance of an offense of Adultery except on a complaint by the aggrieved party.

[¶45.] However, when the party voluntarily approaches the court to seek remedy, it cannot be allowed to plead violation of the right to reputation or privacy since the party itself has infringed such right. In the case of R. Rajagopal vs. State of T.N.^24 ,the court rightly held that there would be no violation of the right to privacy if the person concerned “voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.”

4.2. RIGHT TO PERSONAL CHOICE IS LIMITED WITHIN THE MARRIAGE

[¶46.] It is submitted that creating a right to consensual sexual activity outside marriage affects the idea of marriage which is based on the exclusive right of mutual parties to their partners sexual activity. Marriage by itself excludes other individuals from having any sexual activity with either of them. Creating such a right undercuts the very idea of marriage. Such decisions affect public and private morals and the sanctity of matrimonial home.

4.3. SECTION 497 OF IPC DOES NOT VIOLATE NATURAL JUSTICE PRINCIPLE

[¶47.] ‘ Audi alteram partem ’ is a latin phrase under the natural justice principle which means ' hear the other side', or 'no one should be left unheared'. Article 21 is in accordance with this principle and provides the implicit “right to be heard”.

[¶48.] While it has been alleged that, the section 497 does not contain a provision for hearing

(^24). Rajagopal vs. State of T.N., AIR 1991 SC 207

MEMORIAL ON BEHALF OF PETITIONERS  the married woman with whom the accused is alleged to have committed adultery.  the married woman who faced repercussions due to her adulterer husband.

[¶49.] But, that does not justify the proposition that she is not entitled to be heard at the trial. There is nothing, either in the substantive or the adjectival criminal law, which bars the court from affording a hearing to a party, which is likely to be adversely affected, directly and immediately, by the decision of the Court.^25

[¶50.] However, it is also to be noted that the right of hearing is a concomitant of the principles of natural justice, though not in all situations. There can be certain situations in which an order passed in violation of natural justice need not be set aside.^26 Therefore, the fact that a provision for hearing the wife is not contained in section 497 cannot render that section unconstitutional as violating Article 21.

4.4. PUNISHMENT IS A PROCEDURE ESTABLISHED BY LAW

[¶51.] Personal Liberty’ in Article 21 is of the widest amplitude and it covers a wide range of rights that go to constitute the personal liberties of a man. However, if a person commits a criminal offense and punishment has been given to him by a procedure established by law which is free and fair, there is no question of violation of Art. 21.

[¶52.] Hence, none of the above implicit rights are absolute and are subject to reasonable restrictions and actions may be lawfully taken for the prevention of crime or disorder or protection of health or morals or protection of rights and freedom of others. Therefore, it is humbly submitted that section 497 of IPC is not violative of Article 21 of the constitution.

(^25) Sowmithri Vishnu vs. Union Of India & Anr, 1985 AIR 1618, 1985 SCR Supl. (1) 741

(^26) Syndicate Bank vs General Secretary Syndicate Bank , Appeal (civil) 4263 of 1999