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THER THE SPECIAL LEAVE PETITION IS MAINTAINABLE BEFORE THE HON'BLE SUPREME COURT OF INDIA? 2. WHETHER THE DECRIMINALIZATION OF SEC. 497 OF I.P.C. DEGRADES THE SANCTITY OF MARRIAGE? 3. WHETHER THE DECRIMINALIZATION OF SEC. 497 OF I.P.C. DENIES BENEFITS OF THE PETITIONER?
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Mrs. Ratore ………...………………………………….PETITIONER V. Mr. Ratore …………………………………………...RESPONDENT 1 Mrs. Srikar ...……………………………………….. RESPONDENT 2 Mr. Srikar …………………………………………... RESPONDENT 3 BEFORE SUBMISSION TO HON’BLE CHIEF JUSTICE AND HIS COMPANION JUDGES OF THE HON’BLE SUPREME COURT OF INDIA
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**1. Dr. J S Pandey, Constitutional Law of India, 54th Edition
The Petitioners have approached the Hon'ble Supreme Court of India under Article 136 of the Constitution of India. The Respondents reserve the right to contest the jurisdiction of this Hon'ble Court. The article 136 of Constitution of India reads as hereunder:
136. SPECIAL LEAVE TO APPEAL BY THE SUPREME COURT. (l) 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
Mr. Srikar and Mrs. Srikar were married in 2016 and were residents of Mangalore in Karnataka State as he was working there in a shipping and fishing company. After 4 years of their happy marital life, Mrs. Srikar became aware that she cannot give birth to a healthy child. She came to know about this fact by reading a medical report kept secretly by her husband. As per that report he suffered from some serious congenital medical problem that may pass on to their child. Although she was interested, her husband is not interested even to adopt a child. When they came to her in-laws house, they had quite a big fight in this regard that he never told her about his health problem either prior to her marriage or thereafter but kept the information secretly. She remained in her in-laws house under their care as her husband went for an employment training programme to Cochin for two months. After some time Mr. Srikar learnt that his wife, desirous of having a healthy child, developed an extra marital relationship with his office colleague, Mr. Ratore, but did not object to the same. Mr. Ratore confessed to his wife that he had an illicit relationship with Mrs. Srikar. Mrs. Ratore filed a complaint against her husband as ‘main accused,’ Mrs. Srikar as ‘second accused’ and Mr. Srikar as ‘an abettor’ as he, through his silence and acquiescence facilitated, rather, to put it bluntly, encouraged Mrs. Srikar and her husband to indulge in ‘adultery’ thereby ruining her marital life. She pleaded that she too shall be recognized as ‘aggrieved person’ as her matrimonial life was disturbed with these developments. Meanwhile, an NGO filed a Public Interest Limitation in the Supreme Court with a plea that S. 497 of Indian Penal Code, 1860 shall be struck down as it violates Articles 14, 15 and 21 of Indian Constitution on the ground that the relevant section of Indian Penal Code, 1860 gives ‘immunity only to adulteress but not to men’ when both are equally guilty. As a matter of principle of ‘public policy’, gender neutrality shall be observed in criminal law. Mrs. Ratore also implored herself challenging the constitutional validity of sec. 497 in the Supreme Court as it violates different Articles of Indian Constitution. She also submits that such ‘total immunity cannot be given to Mrs. Srikar, the adulteress.
It is most humbly submitted before this Hon'ble Supreme Court of India that this special leave petition is maintainable in this Court under Article 136 of the Constitution of India against or in a) any judgment, decree, determination, sentence or order, b) in any case of matter, c) passed or made by any Court or tribunal in the territory of India. d) in special and exceptional circumstances e) where there is grave injustice.
2. WHETHER THE DECRIMINALIZATION OF SEC. 497 OF I.P.C. DEGRADES 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. 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 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. 3. WHETHER THE DECRIMINALIZATION OF SEC. 497 OF I.P.C. DENIES BENEFITS OF THE PETITIONER? It humbly submitted before this Hon’ble court that object of Section 13(1) of Hindu Marriage Act 1955, provides that any of the parties to marriage may demand divorce on the ground of adultery of others. The decriminalization of adultery didn't alter this course of remedy available to non-adulterous husband or wife and the maintenance given by husband to wife or wife to husband under the said section 24 & 25 of Hindu Marriage Act 1955, section 18 of Hindu Maintenance Act 1955 are also unaffected due to decriminalization of adultery. The aggrieved party’s benefits cannot be denied by the Respondent parties by using the ground that adultery is no more an offence (Decriminalization of Adultery).
The Court inter alia laid down the following propositions of law:
weighed with the Privy Council, need not weigh with us, yet some of those principles are useful as furnishing in many cases a sound basis for invoking the discretion of this Court in granting special leave. Generally speaking, this Court will not grant special leave, unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and that the case in question presents features of sufficient gravity to warrant a review of the decision appealed against." The overriding nature of the power exercised by the Supreme Court under Article 136 and limitations implicit in its exercise were discussed in Dhakeswari Cotton Mills Ltd. v. Commissioner of income Tax^3. The Court observed: "It is not possible to define with any precision the limitations on the exercise of the discretionary jurisdiction vested in this Court by the constitutional provision made in Article
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. 2.2 DECRIMINALIZING ADULTERY WILL DESTROY THE INSTITUTION OF MARRIAGE It is further submitted that the judgment of the court in Joseph Shine v. Union of India^5 , 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” (Deptt. of Psychology, University of Denver, PMID:
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 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 Singh^6 , 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. 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 Kumar^7. In V. Revathi v. Union of India & Ors^8 , 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 S. 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. (^8) V. Revathi v. Union of India & Ors 1988 SCC (2) 72 (^7) Saroj Rani v. Sudarshan Kumar 1984 SCC (4) 90 (^6) Havinder Kaur v. Harmande Singh 1984 RLR 187
The Special Marriage Act, 1954 recognizes adultery and states that if the respondent has after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his/her spouse, it is a valid ground for divorce. The Act has recognized adultery itself as an offence and no additional offence has to be proved in order to obtain a decree of divorce or judicial separation. The present position on the concept of burden of proof has also been relaxed under the Special Marriages Act, 1954. In the case of Sari v. Kalyan^11 , it was stated that adultery may be proven by a preponderance of evidence and need not be proved beyond reasonable doubt as prima facie evidence as to the act of adultery may not be present and circumstantial evidence will have to suffice. (^11) Sari v. Kalyan 85 CWN 73
1.The special leave Petition is Maintainable under Article 136 of the constitution. 2.The Decriminalization of Sec 497 of I.P.C Degrades the sanctity of Marriage. 3.The Benefits of the petitioner cannot be denied under the grounds of Decriminalization of Sec 497 of I.P.C. AND MAY PASS ANY SUCH ORDER, OTHER ORDER THAT IT DEEMS FIT IN THE INTEREST OF JUSTICE, EQUITY AND GOOD CONSCIENCE. AND FOR THIS, APPELLANT AS IN DUTY BOUND SHALL HUMBLY PRAY. RESPECTFULLY SUBMITTED BY COUNSELS ON BEHALF OF THE APPELLANT
