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Constitutional validity of Section 497 IPC and Maintenance
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▲ LIST OF ABBREVIATIONS………………………………………………………………………
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▲ INDEX OF AUTHORITIES…………………………………………………………………….
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▲ STATEMENT OF
JURISDICTION………………………………………….................................. 6
▲ STATEMENT OF
FACTS………………………………………………………………………..... 7
▲ ISSUES RAISED………………………………………………………………………………...…
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▲ SUMMARY OF ARGUMENTS……………………………………………………………….......
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▲ (^) ARGUMENTS ADVANCED……………………………………………………………………...
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1.1. The Petitioner has no locus to approach the Hon’ble Supreme Court………………..….. 12
1.2. The Present Petition cannot be treated as a PIL………………………………………….….. 12
& And AIR All India Report Anr. Another Art. Article A.P. Andhra Pradesh Co. Corporate C.o.I Constitution of India Cr PC Code of Criminal Procedure Cr LJ Criminal Law Journal C.J. Chief Justice Ed. Edition Hon’ble Honorable IPC Indian Penal Code i.e. That is Ltd. Limited Ors. Others S. Section SC Supreme Cases SCC Supreme Court Cases Ss. Sections Supp. Supplementary volume U.P. Uttar Pradesh U.o.I. Union of India v. versus
Referred In
The Petitioner has filed this writ petition under Article 32 of the Constitution of India, 1950 1 for the violation of fundamental rights enumerated in Part III of the Constitution. The Respondent maintains that no violation of rights has taken place. Therefore, this Hon’ble Court need not entertain its jurisdiction in this writ petition.
1 32. Remedies for enforcement of rights conferred by this Part
The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 ) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution
1. Mr. Rohan was a graduate from a reputed college of engineering from Burla and soon became mechanical engineer at a coal mining company. His father was a ex- colonel & his mother was retired principal of a local higher secondary school. 2. Ms. Shanaya was a neurologist & both Shanaya and Rohan were classmates till 12 th std. They were not having a good tuning in school days. She even proposed Rohan but faced rejection. 3. In 2013, both decided to marry on their parent’s request and mutually agreed with the
decision. The marriage performed was arranged and followed according to the Hindu
marriage rituals which was solemnized on 19th^ September, 2013. Rohan revealed everything about his professional duties along with his low pay scale. They had live- in relationship for around 4 months. Before marriage they intended to have full assurance of their relation.
4. Both families were against Dowry, but as a part of customary practice, INR 1.00 was
given to Shanaya by her father. After marriage, Shanaya shifted to Jaipur where Rohan resided in 1 BHK flat. She was termagant and used to quarrel with her in-laws for petty things and used to be mocked most of the time.
5. Shanaya gave birth to a girl in July, 2014 and insisted to go to her matrimonial home for around 3 months but Rohan was against the idea. Rohan arranged everything required to take good care of child. Rohan’s parents arrived at his place Notwithstanding with obedience, Shanaya went to her maternal home reasoning that she would be more comfortable over there. The in-laws approved but were not happy with Shanaya’s such conduct. Shanaya returned back to Rohan within 2 months.
Meantime, Rohan used to visit Shanaya’s house in regular interval to meet his daughter and used to give money for all the essentials of the child.
6. In November 2016, Rohan got promoted as a Head Engineer with a good hike in
salary. Shanaya quit her job, when she got pregnant and was then a housewife,
12. Appeal in Lower Court- Shanaya filed for Divorce and Rohan was directed to pay a maintenance of INR 50 Lac with no visitation rights of her daughter. 13. Appeal in High Court- Rohan challenged the decision and court reversed it and directed for the restitution of conjugal rights. 14. Appeal in Supreme Court- Shanaya has now filed a writ petition challenging the constitutional validity of Section 497 IPC.
It is humbly submitted before this Hon’ble SC of India that the Writ Petition filed by the petitioner is not maintainable, as it has been held that since Art. 32 confers ‘extraordinary’ jurisdiction the same must be used wisely sparingly and shall be brought into use under circumstances where there is no alternate efficacious remedy available. Also, the present case involves personal interest, therefore the present petition cannot be treated as a PIL. [1.1] THE PETITIONER HAS NO LOCUS STANDI TO APPROACH THE HON’BLE COURT It is humbly submitted that there was neither any infringement of fundamental right nor were such infringement imminent. A person acting bona fide and having sufficient interest in the proceedings of the Public Interest Litigation will alone have a locus standi and can approach the court under Article 32 to wipe out the violation of Fundamental Rights and genuine infraction of statutory provisions, but not for personal gains or private profits or political motives or any oblique consideration. When a person acquires a locus standi, he has to have a personal or individual right which was violated or threatened to be violated. The court at several occasions held that Section 497 IPC does not offend Art. 14 and 15 of the Constitution. 2
A PIL should be filed by a public spirited individual. A petitioner cannot in absence of locus standi ask the Court to treat the matter as a PIL, though a community of people might be benefitted by the judgment of the Court. A PIL is maintainable only when it complies with the following conditions:
2 Yusuf Abdul Aziz v. State of Bombay and Another, AIR 1954 SC 321; Sowmithri Vishnu v. Union of India, AIR 1985 SC 1618
♦ The PIL must be in favour of those that are unrepresented or under represented. 3 The Court cannot exercise the power of PIL to espouse the cause of unnamed and undisclosed persons, unless the petitioner may be held to possess a representative capacity. 4 If the affected party do not wish intend to challenge the action or omission, it cannot be attacked in PIL. 5 A party having personal interests in the prayer cannot approach the Court with PIL. 6 From this, it is evident that in the present instance, the Petition filed is not a PIL in that it does not represent any underprivileged group who cannot approach the Court and because there are personal interests in the prayer. ♦ Public interest litigation should not be "publicity interest litigation" or "private interest litigation" or "politics interest litigation"; if not properly regulated and abuse averted it becomes a tool in unscrupulous hands to release vendetta and wreck vengeance, as well. 7 In the instant case, petition does not seek to advance any public right, rather, invocation of the jurisdiction of the Supreme Court as public interest litigation is made keeping in background the private intentions, hence, the allegations made in the petition and in the context of the case was wholly unjustified. Public interest litigation does not mean settling disputes between the private parties. 8 Here there is much more than what meets the eye. Hence, it is humbly pleaded that, the petitioner has no locus standi to file the petition and thus such petition filed before court on ground of private intentions is liable to be rejected by court and is not maintainable. ♦ The Public Interest Litigation as a safeguard must be utilized and invoked by the court with a great deal of circumspection and caution. It is humbly submitted that, While it is the duty of the Supreme Court to enforce fundamental rights, it is also a duty to ensure that the PIL under Article 32 must not be misused or permitted to misuse by creating a bottleneck in the Superior Court preventing other genuine violation of Fundamental Rights being considered by the court, that would be an act or a conduct that would defeat the purpose of the preservation of the Fundamental
3 S.P. Gupta v. Union of India, AIR 1982 SC 149; Ramsharan v. Union of India, (1989) Supp 1 SCC 251; Fertilizer Corporation. Union v. Union of India, (1981) 1 SCC 568 44 Lakshmi v. Hassan Uzzaman, (1985) 4 SCC 689 5 Ranji Thomas v. Union of India, (2000) 2 SCC 81 6 Duryodhan Sahu (Dr.) v. Jitendra Kumar Mishra (1998) 7 SCC 273 7 Ashok Kumar Pandey v. The State of West Bengal, AIR 2004 SC 280 8 Ramsharan Autyanuprasi v. Union of India, 1989 Supp (1) SCC 251: AIR 1989 SC 549: JT 1988 (4) SC 577
courts of their role. 17 In this manner, some generally accepted exceptions have been built up. However, the onus remains on special circumstances that are to be seen in each case. The decision to apply the rule depends on the scope of the Art. And the circumstances that bring the case within it. The present scenario was created in the similar case where Criminal Proceedings were quashed by the Hon’ble Court stating that High Court should have quashed the petition thereby notwithstanding the petition to be maintainable before the Apex Court. 18 [ISSUE 2] WHETHER SECTION 497 IS CONSTITUTIONALLY VALID OR NOT? 1.1 No Violation of Article 14 Equality before law means that among equals the law should be equal and equally administered, that like should be treated alike. 19 Equal Protection of the laws mean subjection to equal law, applying to all in the same circumstances. 20 Therefore, equal law can be applied only to those in similar circumstances. 21 Article 14 does not prohibit reasonable classification. The Supreme Court has laid down the test to check if a classification is reasonable or not. It has been held in a number of cases that for a classification to be reasonable, 22 It should be found on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and The differentia must have a rational relation to the object sought to be achieved.
Also in the case, Maneka Gandhi v. Union of India 23 , the Supreme Court held that Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. This principle was reiterated in Ramana Dayaram Shetty v. International Airport Authority 24 ; Kasturi Lal Lakshmi Reddy v. State of J&K 25 and Ajay Hasia v. Khalid Mujib 26. In the present instance, the Constitutional validity of section 497 IPC is questioned. To test whether this is a violation of
17 M/s Nebha and Co. v. State of Gujarat (1986) 2 SCC 319 18 W. Kalyani v. State (2012) 1 SCC 358 19 Jennings, Law of the Constitution, 3rd Ed., p. 49 20 Lindsley v. Natural Carbonic Gas Co., (1910) 220 US 61 21 Shukla, V.N., Constitution of India, Eastern Book Company, 11th Ed., 2010, p. 46 22 R.K.Garg v. Union of India, AIR 1981 SC 2138; Re-Special Courts Bill, AIR 1979 SC 478; Air India v. Nargesh Meerza AIR 1981 SC 1829; R.C.Cooper v. Union of India, AIR 1970 SC 564; Ameeroonisa v. Mahboob, AIR 1953 SC 91; K. Thimmappa v. Chairman Central Board of Directors SBI, AIR 2001 SC 467 23 (1978) 1 SCC 248, 284 24 (1979) 3 SCC 498 25 (1980) 4 SCC 1 26 (1981) 1 SCC 722, 741
right to equality, the test of reasonable classification and arbitrariness have to be applied. When applied, it is evident that the impugned section is not a violation of Article 14.
1.2 No Violation of Article 15 Art. 15 Reads as follows;
1.3 Constitutional Validity Challenged at several occasions After the Supreme Court's pronouncement in Yusuf Abdul Aziz case , constitutional vires of Section 497 came to be reagitated in Sowmithri Vishnu v. Union of India 28 It was contended that:-
“Section 497, being contrary to Article 14 of the Constitution, makes an irrational classification between women and men as it: (i) confers upon the husband the right to prosecute the adulterer but it does not confer a corresponding right upon the wife to prosecute the woman with whom her husband has committed adultery, (ii) does not confer
27 Supra Note 2 28 Supra Note 2
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. It does not arm the two spouses to hit each other with the weapon of criminal law. That is why neither the husband can prosecute the wife and send her to jail nor can the wife to prosecute the husband and send him to jail. There is no discrimination based on sex. While the outsider who violates the sanctity of the matrimonial home is punished a rider exceptionally if the outsider is a woman she is not punished. Thus, There is reverse discrimination in ‘favour’ of the woman rather than 'against' her.
The law does not envisage the punishment of any of the spouses at the instance of each other. Thus there is no discrimination against the woman in so far as she is not permitted to prosecute her husband. A husband is not permitted because the wife is not treated an offender in the eye of law. The wife is not permitted as Section 198(1) read with section 198(2) does not permit her to do so. In the ultimate analysis the law has meted out even handed justice to both of them in the matter of prosecuting each other or securing the incarceration of each other. Thus no discrimination has been practiced. I circumscribing the scope of Section 198(2) and fashioning it so that the right to prosecute the adulterer is restricted to the husband of the adulteress but has not been extended to the wife of the adulterer.”
The constitutional validity of Section 497 is upheld ostensibly on the impression that it is favourable to the woman as it keeps her out of the purview of criminal law. Which is a sorted decisions opining of women to be free from legal obligations. So how can one challenge the constitutional validity of Section 497 IPC which is moreover of a woman than a man. Every time it would be a man who has to suffer as the adultery is but obviously requires the consent of both the parties otherwise the definition, meaning and the criminal proceedings will have a diversion towards rape.
It is humbly submitted that the decisions maintained by the Hon’ble Court on certain grounds without being discriminatory towards any of the gender with a pure and specific justification to the challenges and controversies against Section 497 IPC and Section 198 (2) Cr PC should be kept rock solid to a safe distance to the reach of discrimination perspective, which will be a high prevention of the Apex Court and its previous decisions on the similar case and similar grounds which is moreover favorable to the woman rather than man. Where every
time woman is the victim and man is the author of the crime. Thus it is humbly submitted that no provisional changes are required into Section 497 IPC and Section 198 (2) Cr PC.
It is humbly submitted before the Hon’ble Court that the petitioner is not liable for the entitlement of maintenance as she had no just and reasonable cause to withdraw from the society of her husband. Living separately has been held as not necessarily amounting to refusal to live. Where a wife cannot reasonably hope to live with dignity with her husband, she may refuse to live with him. However, where wife left the house of her husband without any justifiable reason and failed to establish and substantiate the apprehension of danger to her life, wife is not entitled to maintenance. In the instant case, wife suspected her husband without having any solid proof against his adulterous conduct. The petitioner was short- tempered, misbehaved with her in-laws and mistreated his husband on the vary ground of suspicion. She accused him of adultery without having any proof, just in case a man is found with another woman which can be intended for any other purpose i.e. professional dealings or general conversation would not to be meant as the parties being involved in sexual intercourse, there are many aspects to deal with, other than accusing one with false charges. The petitioner has challenged the constitutional validity of Section 497 IPC mainly focusing on the violation of fundamental rights of a woman. But what about the rights of a men?
There has not been any violation of fundamental rights in context to Section 497 IPC but there is violation of men’s rights at the instance. Article 15(3) gives visibility towards enhancing and making provisions where needed for woman and children which is not inclusive of man in the article. It is well settled under the fundamental rights that there would be no discrimination on the basis of gender. But it seems that the changing social condition requires uniformity in every aspect. The point to keep such objectives as a matter of concern mainly is because in the present case the petitioner’s conduct was unbearable. She herself ruined her marriage life where the positive consent of the husband was not involved. He was just in case helpless with the demand of situation build by the Petitioner.
A wife can either be a home maker or a home breaker still she would be liable of maintenance when her conduct is not acceptable to the family. It is not always the wife who suffers but the law has been interpreted in such a way where she is always a victim in every aspects. She is liable for the entitlement of maintenance only with few exceptions not
