INDIAN INSTITUTE OF LEGAL

STUDIES

MOOT COURT EXERCISE

GUIDED BY:
MS. DICHEN BHUTIA
ASST. PROF OF LAW

PRESENTED BY : AJGAR ALI

ROLL NO..
REGISTRATION NO..
STUDENT ID..

MEMORIAL ON BEHALF OF PETITIONER

 BEFORE THE HONOURABLE SUPREME COURT OF
AMPHISSA

WRIT PETITION FILED UNDER ARTICLE 32 & 136 OF THE

CONSTITUTION OF INDIA

MRS. MADHU……………………………………………………….PETITIONER

VERSUS

MR. VAIDYA AND OTHERS………………………………………..RESPONDENT

MEMORIAL SUBMITTED ON BEHALF OF THE PETITIONER

COUNSEL APPEARING ON BEHALF OF MRS. MADHU

 TABLE OF CONTENTS

1. INDEX OF AUTHORITIES.
2. LIST OF ABBREVIATION.
3. STATEMENT OF JURISDICTION.
4. STATEMENT OF FACTS.
5. ISSUED RAISED.
6. SUMMARY OF ARGUMENTS,
7. ARGUMENTS ADVANCED,
8. PRAYER.

MEMORIAL ON BEHALF OF PETITIONER

INDEX OF AURHORITY
  LEGISLATION :

1. Hindu Marriage Act, 1955.

2. Code of Criminal Procedure, 1973.
3. Indian Penal Code, 1860.
4. Constitution of India, 1951.

 BOOKS REFERRED :
1.Dr. J.N Pandey, THE CONSTITUTION OF INDIA, Central Law
Agency, (54th Edn).

2. Durga Das Basu, THE COMMENTARY LAW OF INDIA, (8TH end

2010)

3. Pandey, Dr J.N; CONSTITUTIONAL LAW OF INDIA, Central Law

Agency ; 55th end , 2018.

4. Shukla V.N, CONSTITUTION OF INDIA, 12th end , 2013.

5. Pandey, Dr. J.N; THE CONSTITUTIONAL LAW OF INDIA, 51st ,

end ; 2010.

6. Jain, M.P; Indian Constitutional Law; 7th end; 2015.

MEMORIAL ON BEHALF OF PETITIONER

 LAW LEXICON AND DICTIONARIES:

 1. Bryan A Gamer , BLAck LAW DICTIONARY, (2nd , 2004)
2. Justice R.P Sethi, SUPREME COURT ON WORDS AND
PHRASES, (2ND ed, 2004)
3. Webster’s UNIVERSAL DICTIONARY , (1ST ed , 1993)

 WEBSITE REFERRED:
1.www.legalsurveyindia.com
2. www.indiankanoon.com
3. www.aaptaxlaw.com
4.www.lawteacher.net
5. www.scribd.com

MEMORIAL ON BEHALF OF PETITIONER

LIST OF ABBEVIATION
 Abbreviation Description

Art Article

Ed. Edition

No. Number

SC Supreme Court

SCC Supreme Court Cases

Sec Section

V. Versus

CPC Civil Procedure Code

H.C. High Court

Hon’ble Honorable

ILR Indian Law Reporter

SCR Suprem Court Reporter

S. Section

Vol. Volume

COI Constution of India

& And

MEMORIAL ON BEHALF OF PETITIONER

 STATEMENT OF JURISDICTION

The Petitioner have approached the Hon’ble Supreme Court under Article 136 and 32 of
the constitution of Amphissa.

Article 32 can be invoked only when there is an infringement of a Fundamental Right .

The Supreme Court has laid emphasis on this aspect of Article 32 as follows.

“In order to establish the violation of Fundamental Right, the court has to consider the
direct and inevitable consequences of the action, which is sought to be remedied or the
guarantee of which is sought to be enforced” 1

Article 136 of the Constitution of Amphissa states the 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 Amphissa.
(2) Nothing in clause (1) shall apply to any judgment , determination, and sentence or
order passed or made by any court or tribunal constituted by or under any law relating to
the Armed Forces.

AIR 1990 SC 851

MEMORIAL ON BEHALF OF PETITIONER

STATEMENT OF FACTS
The facts of the case are as follows:

 The petitioner is the wife of the accused, wherein the petitioner has alleged that
the accused no 1 has indulged in adultery with accused no 2 and accused no 3
to have abetted the same act.
 Accused 2 and 3 are husband and wife, wherein they where trying to have a
child and prior to alleged offense the wife found out about husband's medical
condition that may pass on to the child. The alleged abettor husband thereon
went to Pune for work based training. While the accused no 3 was in Pune the
alleged offense was committed.

 Mr. Rahul Sen and Mrs. Susmita Sen, residents of Kolkata, were married in
2017. After three years of marriage, Mrs. Susmita Sen discovered her inability
to conceive a healthy child due to her husband's undisclosed congenital
medical condition. This revelation led to marital discord.
 During Mr. Rahul Sen's absence for employment training, Mrs. Susmita Sen
engaged in an extramarital relationship with her colleague, Mr. Vaidya.
However, Mr. Rahul Sen remained silent about this affair upon learning of it.
 Mrs. Madhu, wife of Mr. Vaidya, filed a complaint against her husband, Mrs.
Susmita Sen, and Mr. Rahul Sen, alleging adultery and accusing Mr. Rahul Sen
of facilitating the affair by his silence. She also challenged the constitutionality
of Section 497 of the IPC, 1860, and Section 198(2) of the CrPC, 1973,
arguing that they discriminate based on gender.
 Both Mr. Rahul Sen and Mrs. Susmita Sen filed for divorce under The Hindu
Marriage Act, 1955. Mrs. Susmita Sen objected, citing Mr. Rahul Sen's non-
disclosure of his health problem as the cause of marital strife.
 The High Court quashed the criminal proceedings against the accused,
affirming the constitutionality of Section 497 of the IPC, 1860.

MEMORIAL ON BEHALF OF PETITIONER.

 ISSUES

1. Whether the actions of Mr. Rahul Sen constitute abetment to adultery.

2. Whether section 198 (2) is unconstitutional under section 15(1) or not?
3. Whether accused no 2 be charged under 497 IPC, 1860, violates Articles
14, 15, and 21 of the Indian Constitution.
4. Whether Mr. Rahul Sen's non-disclosure of his health problem justifies
his divorce petition.

MEMORIAL ON BEHALF OF PETITIONER.

SUMMARY OF ARGUMENTS
 1. Whether section 198 (2) is unconstitutional under section 15(1) or not?

Section 198(2) of the Code of Criminal Procedure (CrPC), 1973, deals with the
procedure for prosecuting offences related to adultery. The question of whether
Section 198(2) is unconstitutional under Article 15(1) of the Indian Constitution
involves an assessment of whether the provision discriminates on the basis of sex
and thereby violates the right to equality guaranteed by Article 15(1).
Section 198(2) does not discriminate based on sex. It provides a legal framework
for prosecuting adultery cases, irrespective of gender, and serves legitimate state
interests in preserving marital harmony.

2. Whether the actions of Mr. Rahul Sen constitute abetment to adultery.

Mr. Rahul Sen's passive stance does not constitute active encouragement or
facilitation of adultery. His silence during his absence cannot be equated with
abetment. In this case, Mrs. Susmita Sen engaged in an extramarital relationship
with Mr. Vaidya, her office colleague, during Mr. Rahul Sen's absence. While Mr.
Rahul Sen became aware of this affair, there is no indication that he actively
encouraged or facilitated it. His silence upon learning about his wife's relationship,
without any affirmative actions to promote or enable it, may not meet the legal
requirements for abetment to adultery.

3. Whether accused no 2 be charged under 497 IPC, 1860, violates Articles

14, 15, and 21 of the Indian Constitution.

Section 497 of the Indian Penal Code, 1860, deals with the offence of adultery and
its consequences. The constitutionality of Section 497 has been a subject of debate,
particularly regarding its compatibility with Articles 14, 15, and 21 of the Indian
Constitution.

the constitutionality of Section 497 and its compatibility with Articles 14, 15, and
21 of the Indian Constitution is a matter for the judiciary to decide. The Supreme
Court has the authority to interpret and evaluate the constitutionality of laws, and
its decisions in relevant cases would provide clarity on this issue.

4. Whether Mr. Rahul Sen's non-disclosure of his health problem justifies

his divorce petition.

Mr. Rahul Sen's non-disclosure of his health problem could potentially be

considered a relevant factor in determining the validity of his divorce petition
under The Hindu Marriage Act, 1955. However, whether it alone justifies his
petition would depend on several factors, including the nature of the health
problem, its impact on the marriage, and the specific grounds for divorce available
under the Act.
MEMORIAL ON BEHALF OF PETITIONER.
 whether Mr. Rahul Sen's non-disclosure of his health problem justifies his divorce
petition would be a question for the court to decide based on the specific facts and
circumstances of the case and the applicable legal principles under The Hindu
Marriage Act, 1955.

MEMORIAL ON BEHALF OF PETITIONER.

 ARGUMENTS ADVANCED

1. Whether section 198 (2) is unconstitutional under section 15(1) or not?

Section 198(2) of the Code of Criminal Procedure (CrPC), 1973, deals with the
procedure for prosecuting offences related to adultery.. On the other hand, Section
15(1) of the Indian Constitution pertains to the prohibition of discrimination on
grounds of religion, race, caste, sex or place of birth.

Without delving into specifics, it's essential to note that whether Section 198(2) of the
CrPC is unconstitutional under Section 15(1) of the Indian Constitution would
depend on the interpretation and application of both provisions within the Indian
legal context.

A direct conflict might arise if Section 198(2) discriminates against any individual or
group based on the grounds mentioned in Section 15(1) of the Indian Constitution. If
it does, there could be a case for its unconstitutionality under Section 15(1).

To assess this matter thoroughly, one would need to examine the specific language
and application of both Section 198(2) of the CrPC and Section 15(1) of the Indian
Constitution, along with relevant judicial interpretations and precedents.

The question of whether Section 198(2) is unconstitutional under Article 15(1) of the
Indian Constitution involves an assessment of whether the provision discriminates on
the basis of sex and thereby violates the right to equality guaranteed by Article 15(1).

Section 198(2) does not discriminate based on sex. It provides a legal framework for
prosecuting adultery cases, irrespective of gender, and serves legitimate state interests
in preserving marital harmony.

2. Whether the actions of Mr. Rahul Sen constitute abetment to adultery.

Mr. Rahul Sen's passive stance does not constitute active encouragement or
facilitation of adultery. His silence during his absence cannot be equated with
abetment. In this case, Mrs. Susmita Sen engaged in an extramarital relationship with
Mr. Vaidya, her office colleague, during Mr. Rahul Sen's absence. While Mr. Rahul
Sen became aware of this affair, there is no indication that he actively encouraged or
facilitated it. His silence upon learning about his wife's relationship, without any
affirmative actions to promote or enable it, may not meet the legal requirements for
abetment to adultery.

Mr. Rahul Sen's silence alone may not necessarily constitute abetment to adultery
under the provisions of the Indian Penal Code (IPC). Abetment to adultery requires
active encouragement, instigation, or aiding in the commission of the offence. Mere
knowledge or passive acquiescence to the extramarital relationship may not meet the
threshold for abetment.
MEMORIAL ON BEHALF OF PETITIONER.

In this case, Mrs. Susmita Sen engaged in an extramarital relationship with Mr.
Vaidya, her office colleague, during Mr. Rahul Sen's absence. While Mr. Rahul Sen
became aware of this affair, there is no indication that he actively encouraged or
facilitated it. His silence upon learning about his wife's relationship, without any
affirmative actions to promote or enable it, may not meet the legal requirements for
abetment to adultery.

However, each case is fact-specific, and the court would consider all circumstances
surrounding Mr. Rahul Sen's knowledge and actions to determine whether they
amount to abetment under the applicable laws. Factors such as his reaction upon
learning about the affair and any subsequent conduct may be relevant in making this
determination.

3. Whether accused no 2 be charged under 497 IPC, 1860, violates Articles

14, 15, and 21 of the Indian Constitution.

Section 497 of the Indian Penal Code, 1860, deals with the offence of adultery and its
consequences. The constitutionality of Section 497 has been a subject of debate,
particularly regarding its compatibility with Articles 14, 15, and 21 of the Indian
Constitution.]

Article 14: Article 14 guarantees the right to equality before the law and equal
protection of the laws within the territory of India. Critics argue that Section 497
violates Article 14 because it treats men and women differently in cases of adultery.
Under Section 497, only men can be prosecuted for adultery, while women cannot be
held criminally liable as abettors. This gender-based classification is seen as
discriminatory and not in line with the principle of equality.

Article 15: Article 15 prohibits discrimination on grounds of religion, race, caste,

sex, or place of birth. Opponents of Section 497 argue that it discriminates against
men by holding them criminally liable for adultery while granting immunity to
women. This differential treatment based on gender is perceived as contrary to the
spirit of Article 15, which seeks to prevent discrimination against any citizen on the
specified grounds.

Article 21: Article 21 guarantees the right to life and personal liberty, which includes
the right to privacy and individual autonomy. Critics argue that Section 497 infringes
upon the right to privacy and personal autonomy by criminalizing private consensual
relationships between adults. It is contended that the state should not interfere in
matters of personal morality and relationships unless there is harm or coercion
involved.

the constitutionality of Section 497 and its compatibility with Articles 14, 15, and 21
of the Indian Constitution is a matter for the judiciary to decide. The Supreme Court
has the authority to interpret and evaluate the constitutionality of laws, and its
decisions in relevant cases would provide clarity on this issue.
MEMORIAL ON BEHALF OF PETITIONER.

The court was right in quashing the criminal proceeding against accused no3 and
accuse no 2. As there is no prima facie evidence through which act accused no3 is
said to have abetted the act of adultry and section 497 (3) refrains courts from
initiating criminal proceeding against a women in case of adultery.

4. Whether Mr. Rahul Sen's non-disclosure of his health problem justifies

his divorce petition.

Mr. Rahul Sen's non-disclosure of his health problem could potentially be considered
a relevant factor in determining the validity of his divorce petition under The Hindu
Marriage Act, 1955. However, whether it alone justifies his petition would depend on
several factors, including the nature of the health problem, its impact on the marriage,
and the specific grounds for divorce available under the Act.

Under The Hindu Marriage Act, 1955, divorce can be sought on various grounds,
including cruelty, desertion, adultery, conversion to another religion, mental disorder,
and incurable illness. Mr. Rahul Sen's non-disclosure of his health problem could
potentially fall under the grounds of cruelty or fraud, depending on the
circumstances.

If Mr. Rahul Sen's undisclosed health problem significantly affects the marital
relationship or poses a serious risk to Mrs. Susmita Sen's well-being, it could be
considered cruelty or fraud, thus justifying his petition for divorce. For example, if
his health condition is contagious or could potentially harm Mrs. Susmita Sen or any
future children, it may be considered a valid reason for seeking divorce.

However, the court would need to consider the entire context of the marriage,
including the actions and behavior of both parties, before determining whether Mr.
Rahul Sen's non-disclosure justifies his divorce petition. Additionally, Mrs. Susmita
Sen's objections and any counter-allegations she raises would also be taken into
account in the divorce proceedings.

whether Mr. Rahul Sen's non-disclosure of his health problem justifies his divorce
petition would be a question for the court to decide based on the specific facts and
circumstances of the case and the applicable legal principles under The Hindu
Marriage Act, 1955.
MEMORIAL ON BEHALF OF PETITIONER.

PRAYER

WHEREFORE IN THE LIGHT OF FACTS STATED, ISSUES RAISED,

ARGUMENTS ADVANCED, REASON GIVEN AND AUTHORITIES CITED,

THIS HONOURABLE COURT MAY BE PLEASED TO:

1. TO DECLARE THE PETITION MAINTENABLE.

2. TO DECLARE SECTION 198(2) OF CRPC IS
CONSTITUTIONAL UNDER SECTION 15 (1) OF INDIAN
CONSTITUTION.
3. TO DECLARE SECTION 497 OF IPC, 1860, IS NOT VIOLATES
ARTICLE 14, 15, AND 21 OF INDIAN CONSTITUTION.

AND/OR

PASS ORDER, DIRECTION, OR RELIEF THAT MAY DEEM

FIT IN THE INTEREST OF JUSTICE, FAIRNESS, EQUITY
AND GOOD CONSCIOUS FOR WHICH THE COUNSELS
SHALL FOR EVER PRAY.

ON BEHALF OF THE PETITIONER