BEFORE THE HON’BLE SUPREME COURT OF INDIA, NEW DELHI

Special Leave Petition No. of 2024

(Under Art. 136 of Constitution of India)

Writ Petition No. of 2024

(Under Article 32 in the matter of)

MRS. MADHU ….APPELLANT

VERSUS

MR. VAIDHYA & OTHERS .…RESPONDENT(S)

SPECIAL LEAVE JURISDICTION OF SUPREME COURT UNDER ARTICLE

136(1) OF THE INDIAN CONSTITUTUTION

MEMORANDUM ON BEHALF OF THE RESPONDENT

MEMORANDUM ON THE BEHALF OF RESPONDENTS Page 1

 TABLE OF CONTENTS

TITLES PAGE NO.S

LIST OF ABBREVIATIONS PAGE NO. – 3-4

INDEX OF AUTHORITIES PAGE NO. – 5

BOOKS REFERRED, ACTS

CONVENTIONS AND REPORTS, PAGE NO. – 6-7
WEBSITES

STATEMENT OF THE JURISDICTION PAGE NO. – 8

STATEMENT OF FACTS PAGE NO. – 9-10

ISSUES RAISED PAGE NO. – 11

SUMMARY OF ARGUMENTS PAGE NO. – 12-13

ARGUMENTS ADVANCED PAGE NO. – 14-23

PRAYER PAGE NO. – 24

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 LIST OF ABBREVIATIONS

AIR All India Reporter

CrLJ Criminal Law Journal
SC Supreme Court
SCC Supreme Court Cases
IPC Indian Penal Code
HMA Hindu Marriage Act
Crl. Criminal
A.P. Andhra Pradesh
Guj. Gujarat
Hon’ble Honorable
Art. Article
Sec. Section
SLP Special Leave Petition
Cal. Calcutta
OLR Orissa Law Reviews
U.O.I Union of India

RCR Restitution of Conjugal Rights

SCALES Supreme Court Advancing legal
education for students
MLJ Madras Law Journal
HP Himachal Pradesh
SCR Supreme Court Reports
Mad. Madras
FB Federal Bureau
VS. VERSUS
Commr. Commissioner
AC Appeal cases
Vol. Volume
JT Jury trial

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Ltd. Limited
Anr. Another
ALL ER All England Law Reports
Ors Others
& And
ICCPR International Covenant on Civil and
Political Rights
UDHR Universal Declaration of Human Rights
UN United Nations

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 INDEX OF AUTHORITIES

1. Rupa Ashok Hurra v. Ashok Hurra, JT (2002)3 SC 609: (2002) 4 SCC 388
2. Hoystead v. Commr. of taxation,(1926) AC 155
3. Chandra Kanta v. Sheik Habib, AIR 1975 SC 1500
4. Manganese Ore India Ltd. v. The Regional Assistant Commissioner of Sales Tax,
Jabalpur,(1976)4 SCC124
5. K.S. Puttuswamy and anr. v. U.O.I,2017 SC
6. R. v. R. (1991)4 ALL ER 481; at p.484
7. Joseph Shine v .Union of India, 2018 SC 1676
8. James Sibongo v. Lister Lutombi Chaka and Anr.,2016 CASE NO. SA77-14,
9. Shayara Bano v. Union of India AIR 2017 9 SCC 1
10. Nar Singh Pal v. U.O.I & Ors. AIR 2000
11. Shafin Jahan v. K M Asokan & Ors. AIR 2018 16 SCC 368
12. Navtej Singh Johar & Ors v. U.O.I AIR 2018 SC 4321
13. RMDC v. U.O.I AIR 1957 628, SCR 930

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 INDEX OF BOOKS

1. SN MISRA – THE INDIAN PENAL CODE,1860

2. J.N. PANDEY – THE CONSTITUTION OF INDIA,1950
3. PARAS DIWAN – MODERN HINDU LAW
4. RATANLAL AND DHIRAJLAL – THE INDIAN PENAL CODE,1860
5. BATUK LAL – THE INDIAN PENAL CODE,1860
6. SC TRIPATHI AND VIBHA ARORA – WOMEN AND CHILDREN LAW
7. KRISHNA PAL MALIK – WOMEN AND LAW
8. MAMTA RAO—LAW RELATING TO WOMEN AND CHILDREN
9. N.V. PARANJAPE—STUDIES IN JURISPRUDENCE AND LEGAL THEORY
10. K.A. PANDEY—INDIAN PENAL CODE,1860

ACTS CONVENTIONS AND REPORTS

____________________________________________________________________________

1. INDIAN PENAL CODE, 1860

2. CONSTITUTION OF INDIA, 1950
3. THE HINDU MARRIAGE ACT, 1955
4. HINDU ADOPTIONS AND MAINTENANCE ACT, 1956
5. CRIMINAL PROCEDURE CODE, 1973
6. THE SPECIAL MARRIAGE ACT, 1954

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 INDEX OF WEBSITES

➢ Lawoctopus.com
➢ Lawcorner.in
➢ Lawcirca.com
➢ Lawtimesjournal.in
➢ Lawlex.org
➢ Indiankanoon.org
➢ Legalserviceinindia.com
➢ LexisNexis
➢ SCC Online

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 STATEMENT OF JURISDICTION

The Appellant in the present case has approached the Hon’ble Supreme Court of India to initiate
the present appeal under Article 136 of the Constitution of India. The respondent most humbly
and respectfully submits to the Jurisdiction of the Hon’ble Court in the present matter.

Article 136(1) of The Constitution of India which reads as follows:-

Article 136: Special Leave to appeal by the Supreme Court

(1) 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.

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 STATEMENT OF FACTS

1. Mr. Rahul Sen and Mrs. Susmitha Sen were married in 2017 and were
residents of Kolkata in the state of West Bengal as they were working there in
US based Multi National Company.
2. After 3 years of their happy marital life, Mrs. Susmitha Sen became aware that
she cannot give birth to a healthy child.
3. She came to know about this fact by reading medical report kept secretly by
her husband.
4. As per that report he suffered from some serious congenital medical problem
that may pass on to their child.
5. Then they had quite a big fight in this regard that he never her told about his
health problem either prior to her marriage or thereafter but kept the
information secretly.
6. She remained in her in-laws house under their care as her husband went for
employment training program to Pune for 2 months.
7. After some time Mr. Rahul learned that his wife, desirous of having a healthy
child, developed an extra marital relationships with her office colleague, Mr.
Vaidya, he did not object to the same.
8. Mr. Vaidya however, confessed to his wife that he had illicit relationship with
Mrs. Susmitha.
9. Mrs. Madhu wife of Mr. Vaidya, furious about the matter, filed a complaint
against her husband as, “main accused”.
10. Mrs. Susmitha Sen as “second accused”.
11. Mr. Rahul Sen as “an abettor”, as he through his silence and acquiescence
facilitated, rather, to put it bluntly, encouraged Mrs. Susmitha Sen and Mr.
Vaidya to indulge in “Adultery”.
12. Mrs. Madhu subsequently pleaded that she shall be recognised as an
“aggrieved person” as her matrimonial life had been disturbed with these
developments.
13. Mrs. Madhu also impleaded herself challenging the constitutional validity of
Section 497 in the Supreme Court, as it grants total immunity to both the
adulterer and adulteress which destroys the institution of marriage and the
moral principles for remaining in a married life without a suitable sanctions
for abiding by the same.
14. Mrs. Madhu filed a petition for Divorce in the Family Court from her husband
under the Hindu Marriage Act, 1955 which is pending before the Hon’ble
Court.
15. Mr. Rahul Sen also applied for a divorce from his wife under the Hindu
Marriage Act, 1955.

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 16. Mr. Rahul Sen and Mrs. Madhu moved a joint application for compounding
of offence under the Code of Criminal Procedure, 1973.
17. The High Court quashed the criminal proceedings against all the accused
persons declaring that section 497 does not violate any provision.

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 ISSUES RAISED

ISSUE- I

Is the said Special Leave Petition maintainable in the Hon’ble Supreme Court by the virtue
of Article 136(1) of the Constitution of India, 1950?

ISSUE -II

Challenging the Validity of Section- 497 of The Indian Penal Code, 1860 is baseless while
considering the nature of Adultery as a crime & Moral obligation of the spouse as in against
the laws of nature is baseless in the eyes as of law as the finality of judgements must be
promoted at all instances.

ISSUE- III

Whether section-497 of the Indian Penal Code, 1860 protects the sanctity of marriage?

ISSUE – IV

Whether section 497, I.P.C. read with the section 198 (2) Cr.P.C is constitutional?

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 SUMMARY OF ARGUMENTS

ISSUE- 1

Is the said Special Leave Petition maintainable in the Hon’ble Supreme Court by the
virtue of Article 136(1) of the Constitution of India, 1950?

It is humbly submitted in the Hon’ble Supreme Court that the appeal filed by the
appellant/petitioner under Article 136(1) of the Constitution of India is not maintainable.
The SLP involved in this the case Ashok Hurra v. Ashok Hurrah1 was made to be filed only
subject matter of the fulfillment of the grounds specifically stated. Whereas, the filed
petition does not fulfill the same as the discerning judgment of the Hon’ble court to striking
down the provisions was rational and embody no error on any part of Law or Fact. The SLP
observes strict procedural precautions because the mater relates to re-examination of order
made by this court which is not to be taken lightly.

ISSUE-2

Challenging the Validity of Section- 497 of The Indian Penal Code, 1860 is baseless
while considering the nature of Adultery as a crime & Moral obligation of the spouse
as in against the laws of nature is baseless in the eyes as of law as the finality of
judgements must be promoted at all instances.

It is humbly submitted in front of the Hon’ble bench that the counsel on behalf of the
respondent deems Section-497 of the Indian Penal Code, 1860 valid as it does not hurts the
sanctity of the laws of nature. The counsel on behalf of the Respondent considers the act of
adultery as not a Crime but a very personal affair of a married couple. The Counsel on
behalf of the Respondents deems it is not necessary for a clear portrayal of the
criminalization of the stated section as a Crime and doing the same would hurt the
reputation of both, the husband and the wife. Decriminalizing the act of adultery &
considering it a civil wrong by the hon’ble SC was an exceptional move from the Court to
protect the interests and reputations of the parties involved.

_________________________________________________________________________________________

1
Rupa Ashok Hurra v. Ashok Hurra, JT (2002)3 SC 609: (2002) 4 SCC 388

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ISSUE - 3

Whether section-497 of the Indian Penal Code, 1860 protects the sanctity of marriage?

It is humbly submitted before this hon’ble court that the said provision does not protect the
sanctity of marriage but treats women as property of husband and undermines the status of
women in marriage. It treats women as property of her husband by making a third party
liable for encroachment into marriage leaving the fact that it is a consensual sexual act
between the man and women, which further implies lack of women’s right and capability
of taking her own decisions. The said provision in no way protects the sanctity of marriage,
as the sanctity of marriage is not offended only by sexual acts of wife outside marriage but
also by man doing the same act with an unmarried women or widow. Section 497, I.P.C.
puts women in a state of marital subordination to man entitled to control over her body as
consent of husband to the sexual act of women would not render it as a crime, which further
badly destroys women’s dignity.

ISSUE – 4

Whether section 497, I.P.C. read with the section 198 (2) Cr.P.C is constitutional?

It is humbly submitted before this Hon’ble Court that the Section 497, I.P.C. along with
Section 198 (2), Cr.P.C. shall be held unconstitutional as they are in violation of Article 14,
15 and 21 of the Constitution of India. The Section is manifestly arbitrary as it treats women
as property of husband and creates unreasonable categorization between genders. The law
intrudes in the privacy of the individual and hurts the dignity of women by allowing her
husband to control her sexual activities. Also, there can’t be any segregation of valid
provision from given provisions as it would then lead to a residue having no practical
application. Hence, it needs to be annulled as a whole owing to doctrine of severability,
which in this case is that if law be made gender neutral it would no longer have any efficacy.

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 ARGUMENTS ADVANCED

ISSUE -1

1. Is the said Special Leave Petition maintainable in the Hon’ble Supreme Court by
the virtue of Article 136(1) of the Constitution of India, 1950?

1.1 `It is humbly submitted before this Hon’ble Supreme Court of India that the present
petition is not maintainable on the ground of being frivolous, groundless,
objectionable, and absurd. It can be inferred from the above that petition under
Article 136(1) is for rarest of rare cases, meritorious cases will invoke the inherent
jurisdiction and only such matters will be entertained where the judgment genuinely
suffers from any miscarriage of justice.

THE DOCTRINE OF FINALITY OF JUDGMENT MUST BE RESPECTED

1.2 “Interest republicae ut sit finis litium” 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. In the case, Hoystead v. Commr.
Of taxation2, 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. In
Chandra Kanta v. Sheik Habib3, 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.

1.3 It is rare that in an adversarial system, despite the judges of the highest court doing
their best, one or more parties may remain unsatisfied with the most correct decision.
Opening door for a further appeal could be opening a flood gate which will cause
more wrongs in the society at large at the cost of rights.

_________________________________________________________________________________________

2
Hoystead v. Commr. of taxation,(1926) AC 155
3
Chandra Kanta v. Sheik Habib, AIR 1975 SC 1500

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 Manganese Ore India Ltd. v. The Regional Assistant Commissioner of Sales
Tax, Jabalpur4, and Court held that the doctrine of stare decisis is a very valuable

principle of precedent which cannot be departed from unless there are extraordinary
or special reasons to do so.

1.4 Thus, permitting the parties to reopen the concluded judgements of court by filing
repeated appeals is clearly an abuse of the process of law and would have far
reaching adverse impact on the administration of justice.

1.5 However, in the present case no such strong ground exists for entertaining the above
petition filed by appellants. Thus the court has rightly struck down 158 years old
adultery law. Any provision of law affecting individual dignity and equality of
women invites wrath of constitution.

ISSUE -2

2. Challenging the Validity of Section- 497 of The Indian Penal Code, 1860 is baseless
while considering the nature of Adultery as a crime & Moral obligation of the spouse
as in against the laws of nature is baseless in the eyes as of law as the finality of
judgements must be promoted at all instances

2.1 It is humbly submitted in front of the Hon’ble bench that the counsel on behalf of
the Respondent deems Section-497 of the Indian Penal Code, 1860 valid as it does
not hurts the sanctity of the laws of nature. The counsel on behalf of the Respondent
does not consider the act of adultery as a Crime.

A matter of choice

2.2 Two individuals may part if one cheats, but to attach criminality to infidelity is going
too far. Besides, there is no data to back claims that abolition of adultery as a crime
would result in “chaos in sexual morality” or an increase of divorce.

2.3 How married couples deal with adultery is “absolutely a matter of privacy at its
pinnacle”, Loss of moral commitment in a marriage creates a dent in the
relationship, but it is left to each individual to deal with the problem — some may
forgive while others may seek divorce. Punishing each other or the wife’s lover is
unlikely to re-kindle commitment.
_________________________________________________________________________________________

4
Manganese Ore India Ltd. v. The Regional Assistant Commissioner of Sales Tax, Jabalpur,(1976)4
SCC124

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2.4 The time when wives were invisible to the law, and lived in the shadows of their
husband, has long since gone, because it is a private matter in which court should
not interfere. There is sexual autonomy to every individual and hindering the same
would violate the constitutional principles. Section 497 of IPC struck down and
adultery can be grounds for any civil wrong including dissolution of marriage.

2.5 Consensual sexual relationships between two adults, even if married to other people,
will no longer be a crime. Adultery will however be considered valid grounds for
divorce. Adultery may be committed by two consenting adults making it a
victimless crime.

2.6 The institution of marriage cannot be more important than the individuals who are
part of it. A marriage preserved by force at the cost of the individuals’ happiness is
exploitative, unhealthy, and can in no way contribute positively to society. Adultery
might not be the cause of an unhappy marriage; it could be the result of an unhappy
marriage and that making it a crime would mean punishing unhappy people.

Adultery no longer a criminal offence

2.7 A crime is something which is committed on the society as whole, while adultery is
more of personal issue. Adultery does not fit into the concept of crime as would
otherwise invade the extreme privacy sphere of a marriage. However, it continue to
stand as a civil wrong and a ground for divorce, what happens after adultery is
committed should be left to the husband and wife to decide as it is something that
would involve personal discretion. Hence, declaring adultery as a crime somehow
creeps injustice into the system.

2.8 In K.S. Puttuswamy and anr. Vs. U.O.I5, Apex Court declares that right to privacy
is a fundamental right as prescribed under Article 21 of the constitution. The court
has recognized the conceptual dignity and equality of woman, which cannot be
curtailed.

_________________________________________________________________________________________

5
K.S. Puttuswamy and anr. v. U.O.I,2017 SC

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ISSUE -3

3. Whether section-497 of the Indian Penal Code, 1860 protects the sanctity of
marriage?

3.1 It is humbly submitted before this hon’ble court that the said provision does not
protect the sanctity of marriage and instead treats women as property of husband
and undermines the status of women in marriage.

SEC. 497 I.P.C. GRANTS THE PROPRIETARY INTEREST TO HUSBAND OVER

HIS WIFE

3.2 It is submitted that the provision treats a married woman as a property of the
husband. This provision was drafted by Macaulay based on an erroneous
presumption that women are the property of the men and the husband had the sole
right over the body of his wife.

3.3 This is evidenced by the fact that if the adultery is engaged with the consent of the
husband of the woman then, such act ceases to be an offence. So, the idea was not
to criminalize physical relations outside marriage but rather to put a bar on any
infidelity by the wife without the consent of her “owner”. In Case: R. VS. R.6,
Moreover, it uses the same analogy that is used for the offence of trespass. There is
no doubt then that this Section treats a woman like a man’s chattel.

3.4 The way a person is not expected to enter on the property of the other without his
consent, another man is not expected to have sexual intercourse with someone’s
wife without his consent. Adultery therefore is not an offence against the
matrimonial home but against the husband himself.

NOTION OF MARITAL SUBORDINATION DENYING SEXUAL AGENCY OF

WIFE IS NOT RELEVANT IN CONTEMPORARY SOCIETY

3.5 From the historical perspective marriage had been considered a sacrament however,
in the modern perspective, the marriage is held to be a contract as it now, can be
dissolved and requires consent of parties. In the eyes of law, as marriage is a civil
contract, the consensual sexual relation of one spouse outside marriage should at
best be a violation of that contract that is, it can be a civil offence but, not a criminal
offence.

_________________________________________________________________________________________

6
R. v. R. (1991)4 ALL ER 481; at p.484

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3.6 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. 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.

3.7 Joseph Shine vs. U.O.I.7, 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. Sexual autonomy constitutes an inviolable core of the dignity of every
individual. Sexuality cannot be dis-associated from the human personality. For, to
be human involves the ability to fulfill sexual desires in the pursuit of happiness.
Autonomy in matters of sexuality is thus intrinsic to a dignified human existence.
Human dignity both recognizes and protects the autonomy of the individual in
making sexual choices. Women does not pledge her sexual autonomy to her husband
after marriage and depriving her of choice to have consensual sex with anyone
outside marriage cannot be curbed.

3.8 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. Sec. 497 is thus
founded on the notion that a woman by entering upon marriage loses, so to speak,
her voice, autonomy and agency. Manifest arbitrariness is writ large on the
provision. Such a notion has no place in the constitutional order.

PENALIZING ADULTERY DOES NOT FUNCTION AS A DETERRENCE

3.9 It is submitted that Adultery is not the cause but the consequence of a pre-existing
disruption of the marital tie. In such a situation, Penalizing adultery doesn’t serve
as deterrence but a final nail in the coffin.

3.10 In James Sibongo v. Lister Lutombi Chaka and Anr.,8 the Supreme Court of
Namibia, in an instructive judgment decriminalizing adultery, went into whether the
criminal offence of adultery would protect marriages and reduce the incidence of
adultery.
_________________________________________________________________________________________

7
Joseph Shine v .Union of India, 2018 SC 1676
8
James Sibongo v. Lister Lutombi Chaka and Anr.,2016 CASE NO. SA77-14,

MEMORANDUM ON THE BEHALF OF RESPONDENTS Page 18

 It said: “But does the action protect marriages from adultery? The question becomes
more focused when the spotlight is directed at the following considerations:

(a) 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.
(b) Every so often it happens without any premeditation, when deterrence hardly
plays a role. At the other end of the scale, the adultery is sometimes carefully
planned and the participants are confident that it will not be discovered.
Moreover, romantic involvement between one of the spouses and a third
party can be as devastating to the marital relationship as (or even more so
than) sexual intercourse.

3.11 Adultery is a consequence of the collapse of faith and conscience in a relationship

and requires corrective action rather than penalize. The sanctions imposed by the
laws can bring relief to the injured party for a short time, but destroys the sanctity
of marriage and family life in the long term ruins.

ISSUE – 4

4. Whether section 497, I.P.C. read with the section 198 (2) Cr.P.C is constitutional?

It is humbly submitted before this honorable Court that Sec. 497, I.P.C. read with Sec. 198
(2) Cr.P.C. is unconstitutional.

SECTION 497 VIOLATES OF ARTICLE 14, 15 AND 21 OF THE INDIAN

CONSTITUTION

4.1 Art. 14 strikes at arbitrary state action, both administrative and legislative. There has
been a significant shift towards equating arbitrary or unreasonableness as the yardstick by
which administrative as well as legislative actions are to be judged. All persons in similar
circumstances shall be treated alike both in privileges and liabilities imposed. The doctrine
of equality before law is a necessary corollary of rule of law which pervades the Indian
Constitution. The right to equality has been declared by the Supreme Court as the basic
feature of the constitution. This means that neither the parliament nor any state legislature
can transgress the principle of equality.

4.2 Art. 26 of ICCPR, and Art. 7 of the UDHR, 1948, declares that all are equal before the
law and are entitled without any discrimination to the equal protection of the laws. The
Constitution Bench in Shayara Bano v. Union of India9, held the practice of Triple Talaq
to be unconstitutional. Justice Rohinton Nariman, in his concurring opinion, applied the
test of manifest arbitrariness to hold that the practice does not pass constitutional muster:
_________________________________________________________________________________________

9
Shayara Bano v. Union of India AIR 2017 9 SCC 1

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“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.”

4.3 Under Section 497, it is only the male-paramour who is punishable for the offence of
adultery. The woman, who is pari delicto with the adulterous male, is not punishable, even
as an “abettor”, even though the relationship is consensual. The adulterous woman is
excluded solely on the basis of gender, and cannot be prosecuted for adultery. Thus, it is
discriminatory against men as it violates their fundamental right of equality before law.
Art.15 also stands violated as such penal provision not only creates a categorization among
the two sexes but in fact metes out unequal treatment amongst the males as well. A married
man who has an affair with an unmarried woman is not prosecutable under the existing
adultery law while the same man if 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 mete
out depending upon the marital status of the woman.

4.4 In Navtej Singh Johar, Justice Chandrachud had held that a provision of law which
perpetuates gender stereotypes will be bad for discrimination on grounds of sex, and hence
will fall foul of Article 15 (1). Same approach was extended here; upon identification of
patriarchal and paternalistic undertones of the provision. Section 497 has a significant
social impact on the sexual agency of women. It builds on existing gender stereotypes and
bias and further perpetuates them. It also violates Article 21 of the Indian Constitution. The
Right to Privacy has been recognized as a fundamental right guaranteed under Art. 21 of
the Indian Constitution. In K M Putta swamy v. Union of India5, a nine-judge Constitution
Bench declared that the right to privacy is a fundamental right under Art. 21, stating:
“Sexual privacy is an integral part of right to privacy.”

4.5 The Apex court unreservedly held that privacy safeguards individual autonomy and
recognizes the ability of the individual to control vital aspects of his or her life. While
acknowledging decisional privacy, it upholds the cognitive decisions of every individual
including the ability to make intimate decisions primarily consists one’s sexual or
procreative nature and decisions in respect of intimate relations. To "shackle" sexual
freedom of a woman and allow criminalization of consensual relationships was a denial of
right of sexual privacy and considering a citizen as a property of other was an "anathema"
to ideal of dignity.

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4.6 In Nar Singh Pal v. UOI10, The Supreme Court has asserted:

“Fundamental rights under the constitution cannot be bartered away. They cannot be
compromised nor can there be any estoppel against the exercise of fundamental rights
available under the constitution.” .

4.7 In Shafin Jahan v. Asokan K .M. & Ors.11, this 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.

4.8 Both, Art. 8 of European Convention of Human Rights, and Art. 17 of the International
Covenant on Civil and Political Rights Act, 1966, provide for protection from arbitrary or
unlawful interference neither with his privacy, family, home and correspondence nor to
unlawful attacks on his honor and reputation.

4.9 Secrecy is an essential adjunct to the private life. The exercise of secrecy in relation to
facts that bear a highly personal character is the very essence of personal autonomy. Such
view renders the provision criminalizing sexual intercourse between two consenting and
willing adults as being illegal and unconstitutional. The mutual decision of two agreeable
adults to participate in sexual activity goes to the very core of the privacy jurisprudence
and calls for removal of any restrictions on a person’s decision to participate or not
participate in a sexual activity.

4.10 International trends worldwide also indicate that very few nations continue to treat
adultery as a crime, though most nations retain adultery for the purposes of divorce laws.
In South Korea, and Guatemala, provisions similar to Sec. 497 have been struck down by
the constitutional courts of those nations. UN Women has called for the decriminalization
of adultery.

_________________________________________________________________________________________

10
Nar Singh Pal v. U.O.I & Ors. AIR 2000
11
Shafin Jahan v. K M Asokan & Ors. AIR 2018 16 SCC 368

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4.11 A Joint Statement by the United Nations Working Group on discrimination against
women in law and in practice in 2012, stated:

“The United Nations Working Group on discrimination against women in law and in
practice is deeply concerned at the criminalization and penalization of adultery whose
enforcement leads to discrimination and violence against women.”

Thus, this provision which treats similarly situated persons unequally and discriminates
between persons on the basis of sex alone, is liable to be struck down as being violative of
Articles 14 and 15, 21 of the Constitution, which form the pillars against the vice of
arbitrariness and discrimination.

4.12 Furthermore, Sec. 198 (2) Cr.P.C. which provides that no person other than the
husband of the woman shall be deemed to be aggrieved party and woman are denied right
to prosecute for the sexual act committed by her husband. Hence, 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. Thus, it violates the principle of natural justice. Sec. 198 (2) Cr.P.C.
operates as a fetter on the wife in prosecuting her adulterous husband. The procedural law
which has been enacted in Sec. 198 of the Code of Criminal Procedure 1973 re-enforces
the stereotypes implicit in Sec. 497. Therefore, when the substantive provision goes, the
procedural provision has to pave the same path.

4.13 Hence, the provisions of Sec. 497, I.P.C. are held to offend the fundamental rights, the
procedure engrafted in Sec. 198 (2) will cease to have any practical relevance. Hence, the
relevant provision is unconstitutional on the ground of obnoxious discrimination.

SECTION 497, I.P.C. READ WITH SECTION 198 (2), Cr.P.C. HAS BEEN
RIGHTLY STRUCK DOWN AS UNCONSTITUTIONAL IN ITS’ ENTIRETY

4.15 It is submitted that Sec. 497, I.P.C. read with Sec. 198 (2) Cr.P.C. is unconstitutional
in its entirety and has been rightly struck down by this court. Art. 13 Clause (1) and (2) of
the Indian Constitution declare that laws inconsistent with or in contravention of the
fundamental rights shall be void to the extent of inconsistency or contravention, as the case
may be. If, however, it is not possible to separate the valid from the invalid portion, then
the whole of the statue will have to go. Further, In Navtej Singh Johar & Ors. v. Union of
India12. Secretary Ministry of Law and Justice, has held that there is no presumption of
constitutionality attaches to a pre-constitutional statute like Indian Penal Code.

_________________________________________________________________________________________

12
Navtej Singh Johar & Ors v. U.O.I AIR 2018 SC 4321

MEMORANDUM ON THE BEHALF OF RESPONDENTS Page 22

4.16 The Supreme Court laid down the following propositions as regards the doctrine of
severability in R.M.D.C. v. Union of India13. The whole provision being unconstitutional
being violative of Art. 14, 15 and 21 of the constitution of India, the question of striking
down the unconstitutional part or severability does not arise.

4.17 Furthermore, the issue of the appellant that if this Court finds any part of this section
violative of the Constitutional provisions, the Court should read down that part, in so far as
it is violative of the Constitution but retain the provision, is not tenable as the power under
Art. 142 being curative in nature, cannot be used to supplant the substantive law, or to fill
lacuna in a statue or by-pass the provision thereof. The apex court has even went on to say
that it may refuse to exercise its jurisdiction under Art. 142, although it would be lawful to
do so. In Rupa Ashok Hurra v. Ashok Hurra1, the apex court has observed in this regard:
“This power could not be used to supplant substantive law applicable to the case or cause
under consideration. Even, with the width of its amplitude, Article 142 could not be used
to build a new edifice where none existed earlier. By ignoring express statutory provisions
dealing with a subject and thereby to achieve something indirectly, which could not be
achieved directly.” Consequently, Section 497, I.P.C. read with Section 198 (2) Cr.P.C. has
been rightly struck down by this court in its entirety.

_________________________________________________________________________________________

13
RMDC v. U.O.I AIR 1957 628, SCR 930
1
Rupa Ashok Hurra v. Ashok Hurra, JT (2002)3 SC 609: (2002) 4 SCC 388

MEMORANDUM ON THE BEHALF OF RESPONDENTS Page 23

 PRAYER

WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS

ADVANCED AND AUTHORITIES CITED, IT IS HUMBLY PRAYED THAT THIS
HON’BLE COURT MAY BE PLEASED TO ADJUDGE AND DECLARE:

1. That the special leave petition filed by the Appellants is not maintainable in the Hon’ble
Court.
2. The court should held that the Section 497 of I.P.C is constitutional.
3. Section 497 of I.P.C does not protects the sanctity of marriage.
4. Section 497 of I.P.C read with Section 198 (2) of Cr.P.C violates of Art 14,15 and 21 of
the Indian constitution.
AND/OR
PASS ANY SUCH ORDER, OTHER ORDER THAT IT DEEMS FIT IN THE INTEREST OF
JUSTICE, EQUITY AND GOOD CONSCIENCE. AND FOR THIS, RESPONDENT AS IN
DUTY BOUND SHALL HUMBLY PRAY.

All of which is most humbly and respectfully submitted on behalf of the respondent.

Place: ……………………

Date: …………………….

MEMORANDUM ON THE BEHALF OF RESPONDENTS Page 24