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A legal challenge to the constitutionality of section 497 of the indian penal code, which defines and punishes the offense of adultery. The petitioner argues that this provision is discriminatory against men and violates the fundamental rights enshrined in the indian constitution, particularly articles 14, 15, and 21. The document traces the history of legal challenges to section 497 and section 198(2) of the code of criminal procedure, which excludes women from being able to file a complaint for adultery. The petitioner contends that these provisions are unjust, illegal, and arbitrary, and that they fail to keep pace with the evolving social and legal landscape, including india's obligations under international human rights instruments such as cedaw. A comprehensive analysis of the issues and calls for the supreme court to strike down these provisions as unconstitutional.
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(Under Article 32 of the Constitution of India) WRIT PETITION (CRL.) NO. 194 OF 2017 [PUBLIC INTEREST LITIGATION] IN THE MATTER OF: JOSEPH SHINE … PETITIONER VERSUS UNION OF INDIA ... RESPONDENT PAPER BOOK [FOR INDEX KINDLY SEE INSIDE] ADVOCATE FOR THE PETITIONER: SUVIDUTT M.S. FILED ON: 10.10.
S.No. Particulars of Documents Page No. of part of which it belongs Remarks Part I (Contents of Paper Book) Part II (Contents of file alone) (i) (ii) (iii) (iv) (v)
This Writ Petition is filed challenging the constitutional validity of Section 497 of IPC and Section 198 (2) of CrPC. This is a Public Interest Litigation and the Petitioner has no personal interest in the matter. Section 497 of the IPC is prima facie unconstitutional on the ground that it discriminates against men and violates Article 14, 15 and 21 of the Constitution of India. When the sexual intercourse takes place with the consent of both the parties, there is no good reason for excluding one party from the liability. The said discrimination is against the true scope and nature of Article 14 as highlighted in Maneka Gandhi v. Union of India , (1978) 2 SCR 621, R.D. Shetty v. Airport Authority , (1979) 3 SCR 1014 and E.P Royappa V State Of Tamil Nadu , 1974(4) SCC 3. Section 497 of the IPC cannot be interpreted as a beneficial provision under Article 15(3) as well. The exemption provided for women under Article 15(3) does not fall within the scope of the Article which is explained in Thota Sesharathamma and Anr v. Thota Manikyamma (Dead) by Lrs. and Others , (1991) 4 SCC 312 by this Hon’ble Court. It also indirectly discriminates against women by holding an erroneous presumption that women are the property of the men. This is further evidenced by the fact that if the adultery is engaged with the consent of the husband of the woman then, such act seizes to be an offence punishable under the code. The same amounts to institutionalized discrimination which was repelled by this Hon’ble Court in Charu Khurana
and Ors v. Union of India and Ors., 2015(1) SCC 192. (Also see Frontiero v Richardson, (1973) 411 US 677). The said provision also does not pass the test of reasonable classification as enunciated in State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75. The said provision is also hit by the ratio laid down in Justice K.S Puttaswamy (Retd. ) v. Union of India and Ors, (Writ Petition (Civil) No. 494 OF 2012), since sexual privacy is an integral part of ‘right to privacy.’ Section 198 (2) of CrPC is also violative of Article 14, 15 and 21 of Constitution of India since it excludes women from prosecuting anyone engaging in adultery. This provision was challenged before this Hon’ble Court on three occasions, firstly in Yusuf Abdul Aziz v. State of Bombay and Another , AIR 1954 SC 321, secondly in Sowmithri Vishnu v. Union of India AIR 1985 SC 1618 and finally, in V. Revathi v. Union of India , (1988) 2 (SCC) 72. However, in view of the emerging jurisprudence on Articles 14, 15 and 21 of the Constitution and the changed social conditions, this Writ Petition is filed seeking reconsideration and a direction to declare Section 497 of the IPC and Section 198(2) CrPC as unconstitutional. CHRONOLOGY OF EVENTS Date Particulars 1860 Indian Penal Code, 1860 (hereinafter, “IPC”) was enacted. Section 497 of IPC defines and punishes the act of
with the leave of the Court, make a complaint on his behalf.” Both of these provisions are violative of fundamental rights guaranteed under Articles 14, 15 and 21 of Constitution of India. 10.03.1954 For the first time, Section 497 was challenged stating that the exemption provided for women being prosecuted is discriminatory and the same was repelled by this Hon’ble Court in Yusuf Abdul Aziz v. State of Bombay and Another, AIR 1954 SC 321, stating that the same falls within the ambit of Article 15(3). (^1971) The 42 nd^ Law Commission Report analysed various provisions of Indian Penal Code and made significant recommendations. One of them was to remove the exemption provided for women from being prosecuted and to reduce the punishment for the offence from 5 years to 2 years. 27.05.1985 This Hon’ble Court considered the validity of Section 497 afresh in Sowmithri Vishnu v. Union of India , AIR 1985 SC 1618. The challenge was rejected again stating several reasons.
25.02.1988 The constitutional validity of Section 497 of the IPC along with the Section 198 (2) of CrPC was challenged in V. Revathi v. Union of India , (1988) 2 (SCC) 72. This Hon’ble Supreme Court repelled the challenge relying on the decision of the Supreme Court in Sowmithri (supra). March, 2003 The Report of Committee on Reforms of Criminal Justice System, Vol 1, March 2003 was published. The said Committee was formed to consider measures for revamping the Criminal Justice System. The said report, in one of its recommendations, suggested removing the exemption provided for women from being prosecuted under the impugned system. 01.12.2011 In W. Kalyani v. State of Tr. Inspector of Police and Another , 2012 (1) SCC 358 this Hon’ble Court was pleased to make an observation about the impugned Section. It was stated :"the provision is currently under criticism from certain quarters for showing a strong gender bias, it makes the position of a married woman almost as a property of her husband".
(Under Article 32 of the Constitution of India) WRIT PETITION (CRIMINAL) NO. OF 2017 [PUBLIC INTEREST LITIGATION] IN THE MATTER OF: Joseph Shine Thevadiyil House P.O., Koodathai Bzar, Kozhikode, Kerala – PIN 673573 …^ Petitioner VERSUS Union of India Through its Secretary, Ministry of Home Affairs, North Block, Cabinet Secretariat, Raisina Hill, New Delhi, PIN – 110001 … Respondent PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA SEEKING APPROPRIATE WRIT FOR DECLARING SECTION 497 OF IPC AND SECTION 198(2) OF Cr.P.C. AS UNCONSTITUTIONAL TO THE HON’BLE CHIEF JUSTICE OF INDIA AND HIS COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF INDIA
and on all these occasions, the challenge was repelled by this Hon’ble Court. With due respect, it is submitted that the said decisions have not appreciated the contentions in the right sense. However, in view of the emerging jurisprudence on Articles 14, 15 and 21 of the Constitution and the changed social conditions, this writ petition is filed seeking reconsideration and a direction to declare s. 497 IPC and s. 198(2) CrPC as unconstitutional.
is a also an outdated provision, in addition to being illegal and violative of fundamental rights. ii) This writ petition is filed challenging the constitutional validity of S.497 of Indian Penal Code, 1860 (hereinafter IPC) which defines ‘Adultery’ and prescribes the punishment. The petitioner also challenges s. 198(2) CrPC. The sections are apparently discriminatory and they violate the principles of gender justice. iii) Section 497 of the IPC reads as follows: “497. Adultery.—Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.” Section 198 (2) of CrPC states as follows: “For the purposes of sub- section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code: Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such
revamping the Criminal Justice System. In the report submitted by the Committee, in the Chapter “Offense against Women” under the subhead “Adultery: Section 497 IPC” it is stated: “16.3.1 A man commits the offence of adultery if he has sexual intercourse with the wife of another man without the consent or connivance of the husband. The object of this Section is to preserve the sanctity of the marriage. The society abhors marital infidelity. Therefore there is no good reason for not meeting out similar treatment to wife who has sexual intercourse with a married man. 16.3.2 The Committee therefore suggests that Section 497 of the I.P.C should be suitably amended to the effect that “whosoever has sexual intercourse with the spouse of any other person is guilty of adultery …… .” vii) The same was also included in Recommendations of the report. True copy of the relevant pages of Report of Committee on Reforms of Criminal Justice System, Vol 1, March 2003 is produced herewith and marked as ANNEXURE P-2 (Pages 47 to 52). These recommendations may be relevant to be considered by this Hon’ble Court while examining the constitutionality of the provisions. vii) It is also pertinent to note that in the year 2011, this Hon'ble Court was pleased to make an observation about the impugned section in W. Kalyani v. State of Tr. Inspector of
Police and Another , (2012) 1 SCC 348. Therein, this Hon'ble Court was pleased to observe that: "The provision is currently under criticism from certain quarters for showing a strong gender bias for it makes the position of a married woman almost as a property of her husband". The true copy of the judgment dated 01.12.2011 in Crl. Appeal No.2232/2011 is produced herewith and marked as ANNEXURE P-3 (Pages 53 to 55). ix) In the year 2012, a Working Group of United Nations established by the Geneva-based Human Rights Council in September 2010 urged the countries to eliminate laws that classify adultery as a criminal offence. To show this aspect, the true copy of the news report dated 18.10.2012 of the said statement downloaded from the official website of United Nations news center is produced herewith and marked as ANNEXURE P-4 (Page 56). x) In 2015, the Supreme Court of South Korea has struck down Article 241 of the Criminal Act (enacted as Law No. 293 of September 19, 1953) on 26.02.2015, which stipulates imprisonment for two years or less for adultery and interdiction. The judgment held that the impugned clause therein violated the principle of excessive prohibition and infringed on peoples’ right to self-determination and privacy and freedom of privacy. xi) It is submitted that Section 497 as it stands, is unconstitutional. The reasons for repelling the challenge
and 15 of the Constitution. The true scope and nature of Article 14 of the Constitution was highlighted in Maneka Gandhi v. Union of India , (1978) 2 SCR 621 and R.D. Shetty v. Airport Authority , (1979) 3 SCR 1014. In E.P Royappa V State Of Tamil Nadu , 1974(4) SCC 3, it was held as follows: “The basic principle which therefore informs both Articles 14 and 16 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 "crib bled, cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. 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 monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Art. 14 , and if it affects any matter relating to public employment, it is also violative of Art. 16. Articles
14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment." Further, in Ajay Hasia v. Khalid Mujib , AIR 1981 SC 487 it was held as follows: “If the Society is an "authority" and therefore "State" within the meaning of Article 12, it must follow that it is subject to the constitutional obligation under Article 14. The true scope and ambit of Article 14 has been the subject matter of numerous decisions and it is not necessary to make any detailed reference to them. It is sufficient to state that the content and reach of Article 14 must not be confused with the doctrine of classification. Unfortunately, in the early stages of the evolution of our constitutional law, Article 14 came to be identified with the doctrine of classification because the view taken was that Article forbids discrimination and there would be no discrimination where the classification making the differentia fulfils two conditions, namely, (i) that the classification is founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and (ii) that differentia has a rational relation to the object sought to be achieved by the impugned legislative or executive action.” The preposition that those who are situated on the same footing are liable to be treated alike is a settled preposition in
