Constitutional Validity of Adultery: Appellants

1. The counsel for the appellants submit that the Section 497 of Indian Penal Code is constitutionally
valid. The counsel submits that equality is a basic feature of the Constitution and any treatment
of equals unequal unequally or unequals as equals will be violation of basic structure of the
Constitution.1 Equality is the basic feature of the constitution and in due course of time, it has
expanded to comprehend certain principles of natural justice eschewing irrationality.2
2. The counsel humbly submits that the preamble of our Constitution enshrines equality and when
read in light of Article 14 and 15, it reflects the thinking of our Constitution makers and prevents
discrimination and promotes equal treatment.3 It is submitted that all persons in similar
circumstances will be treated equally in privileges and liabilities.4 Section 497 treats all the
married persons equally.
3. The counsel further submits that the Article 14 of the Constitution is a positive content. It doesn’t
mean that identically the same law should apply to all persons, or that every law must have a
universal application. It postulates the application of same laws alike and without discrimination
to all persons similarly situated thereby denoting equality of treatment in equal circumstances.
Further, it implies that among equals the law should should be equal.5 The counsel submits that
that the Article 14 implies that the same law should not apply to everyone but should deal with
alike with all in one class. There should be equality of treatment under equal circumstances. It is
pertinent to note that “that equals should not be treated unlike and unlikes should not be treated
alike. Likes should be treated alike”.6
4. The counsel states that the where persons or groups of persons are not situated equally, to treat
them as equals would itself be violate of Article 14. So, as to apply the principle of equality when
the law in question is based on rational classification, it is not discriminatory in nature.7 It is
submitted that similar is the position in Section 497 of IPC where the law has made a rational
classification between married women and unmarried women.
5. It is humbly stated that Article 14 forbids class legislation and not reasonable classification of
persons, objects for achieving specific ends. The test to decide whether the classification is
reasonable depends on two factors: a) It should not be arbitrary, artificial or evasive. It should be
based on an intelligible differentia, some real and substantial distinction, which distinguishes

1
M.G. Badappanavar v State of Karnataka, AIR 2001 SC 260, at 264.
2
M.Nagaraj v Uniion of India, 2006 8 SCC 212.
3
Zoroastrian Coop. Housing Society Ltd v District Registrar Coop. Societies (Urban), (2005) 5 SCC 632.
4
John Vallamattom v Union of India, AIR 2003 SC 2562.
5
Jagannath Prasad v State of Bihar, AIR 1961 SC 1245; Mohd. Shaheb Mehboob v Dy. Customs, AIR 1961 SC 1657.
6
Gauri Shankar v Union of India, AIR 1995 SC 55, at 58.
7
Ashutosh Gupta v State of Rajasthan, (2002) 4 SCC 34.
 persons or things grouped together in the class from others left out of it. b) The differential
adopted as the basis of classification must have a rational or reasonable nexus with the object
sought to be achieved by the Statute in question.8
6. It is further submitted that the Article 14 in its ambit involves two facets viz, it permits reasonable
classification which is founded on intelligible differentia and accommodates the practical needs
of the society and the differential must have a rational relation to the objects sought to be
achieved. It is the ‘fonjuris' of the Constitution, the fountainhead of justice.9 It is well established
that the Section 497 aims to protect the causes of married women rather the unmarried women.
The counsel would also submit that the Parliament in its wisdom has rightly classified women
into marred and unmarried in this circumstance keeping in its wisdom the martial status of the
women. In fact, marriage is the very essence of the enacting such a penal provision for adultery.
Section 497 is said to have withered the test of time in all these periods and will continue to stand
the test of constitutionality when the Parliament has enacted it keeping in mind its severity or
effects on marriage.
7. It is also submitted that differential treatment does not per se amount to violation of Article 14 of
Constitution and it violates Article 14 only when there is no reasonable basis and there are several
tests to decided whether a classification is reasonable or not and one of the tests will be as to
whether it is conducive to the functioning of modern society.10 It is stated that even in the modern
society, marriage is still very much apart of our lives. When the law is enacted to protect the
sanctity of marriages which forms part our society and culture, the classification between married
women and unmarried women is reasonable. If the nexus has to be tested, then marriage forms
the reasonable nexus with the classification enacted by the Parliament differentiating both classes
of women.
8. The counsel humbly submits that in the case of State of Uttar Pradesh v Kaushailiya and Ors.11,
the Supreme Court pointed out that the Article 14 of the Constitution doesn’t prohibit reasonable
classification. The Court in this case pointed out the differences between prostitute who cause
nuisance to public and who doesn’t and held it to be a reasonable classification. It is submitted
that the classification between married woman and unmarried woman would also fall under the
ambit of reasonable classification.

8
Laxmi Khandsari v State of Uttar Pradesh, AIR 1981 SC 973. Test for valid classification restated in the case of State
of Haryana v Jai Singh, (2003) 9 SCC 114. See also Welfare Asson. ARP v Ranjit P.Gohil, (2003) 9 SCC 358.
9
Sunita Bugga v Director of Education, 2010 (7) (Del) 727.
10
Transport & Dock Workers Union v Mumbai Port Trust, (2011) 1 Mad LJ 755 (766) SC: 2011 AIR SCW 220. See also
State of Rajasthan v Shankar Lal Parmar, AIR 2012 SC 1913 and B.Manmad Reddy v Chandra Prakash Reddy, (2010)3
SCC 314 (320).
11
AIR 1964 SC 416, at Para 7..
9. It is submitted that in the case of Budhan Choudary v State of Bihar12,the Supreme Court
explained the amber of Article 14. It permits reasonable classification for the purposes of
classification with two conditions to be fulfilled: (i) classification must be on intelligible
differentia which distinguishes persons or rings that are grouped together from other left out of
the group and (ii) that the differentia must have a rational relation to the object sought to be
achieve day the enactment. It tells that what is necessary is that nexus between classification and
object of the enactment. In the present case, it is submitted the classification is based on marriage
between women with married on one hand and unmarried on the other hand. The object of Section
497 will be to protect marriages as per our traditions and culture.
10. It is also submitted that the in case of State of Maharashtra v Indian Hotel and Restaurants13, the
Supreme Court pointed out that the it is difficult to except the legislature carving out a
classification with hundred percent logic and still the Court will respect it as dictated by
Parliament and intervening only when the classification would result in inequality or palpable
arbitrariness. The same is reiterated in the case of E.V. Chinnaiah v. State of A.P. and Ors14,
where it was held that the any policy adumbrated in a statue must answer the test of Article 14
and classification whether permissible or not must be judged on the touchstone of the object
sought to be achieved. The object of the enactment was to protect the marriages in our country
and even to date marriages are considered as sacred as per our customs and tradition and hence
the difference between married women and unmarried women comes in order to achieve the
object of the enactment.
11. It is also pertinent to point the verdict in the case of Yusuf Abdul Aziz v State of Bombay15 by a
five bench which ruled in favour of adultery’s constitutional validity as it discussed the Article
14 and 15. It points out that sex is a proper classification and Article 15(3) provides for special
laws for women. It is submitted that Article 14 read with Article 15(3) will validate the provision
of adultery. A decision of co-equal bench is binding on the bench of same size16 and the bench
size in Joseph Shine v Union of India is also five. Therefore, only a larger bench can overturn
such decisions.

Right to life Article 21:

1. The counsel for the appellants submits that the Section 497 of the Indian Penal Code doesn’t
violate Article 21 of the Constitution. Article 21 of the Constitution guarantees that no person

12
AIR 1955 SC 191.
13
AIR 2013 SC 2582, at Para 26.
14
(2005) 1 SCC 394.
15
AIR 1954 SC 321.
16
B.Eswaraiah vs The Presiding Officer, Labour, WRIT PETITION No.1846 of 2006 .
 shall be deprived of his life or personal liberty except according to procedure established by law.
It is stated that there is no doubt that the scope of Article 21has expanded over the past decades.
2. It is submitted that Article 21 cannot be stretched too far. Article 21 does guarantee right to life
but the same cannot be extended or projected to things which will have an insidious effect on
17
public morale or public order. The adultery being one of the factors which will have an
insidious effect upon public morale and interests. It is also stated that Section 497 is of a kind
enacted to protect and install public morality and faith among the people. The counsel also
submits that in the case of Vibin P.V. v.State of Kerala18, it was held that the object of Article 21
is to protect citizens life and liberty except as per procedure established by law. Even in the case
of Ramlila Maiden19, it was held that liberty is subject to reasonable restrictions and it can only
be held unconstitutional when the procedure for deprivation of rights are unfair and
unreasonable.Section 497 of IPC, 1908 is enacted with proper procedure under Section 198 of
CrPC, 1973 and it provides reasonable means to prosecute adultery.
3. It is humbly submitted that the marriage being one of the social institutions in our culture and
customs will be impacted severely if adultery is struck down. It may lead to people losing faith
in marriages which can be detrimental to public interests. It is submitted that three-fold test held
in the case of K.S.Puttaswamy v Union of India20 was wrongly applied in the present case. The
tests are: i) legality, ii) need, iii) proportionality. The counsel submits to the three-fold test as
follows: Legality: It may be stated that adultery is very much apart of our society and is being
looked upon a crime. The Parliament in its wisdom has drafted the law taking into consideration
of the societal needs clubbed with religious sentiments attached with marriage. Secondly towards
the need aspect, it is submitted that the law enacted is necessary in order protect the marriage.
The State in the interests of the public at large has enacted the adultery provision. As regards
proportionality, the object of the enactment was to marriage breaker who being an outsider must
not be allowed to roam scot free and means to penalise him with object of keeping the marriage
aspect also. It is hereby submitted that the test was wrongly applied and all the three criteria are
fulfilled.
4. The counsel also submit that women have to respected and their dignity plays an important factor.
The dignity of women is projected when she is not prosecuted by law even though being an
abettor. Section 497 is in fact other way around when it prosecutes men for their adulterous act.
The right of women not to prosecute their husband or right of the husband not to prosecute his
adulterous wife is embodied in Section 198(1) read with Section 198(2) of Code of Criminal

17
M.J Sivani and others v State of Karnataka,AIR 1995 SC 1770, at para 20.
18
2013(1) K.L.J. 207.
19
(2012) 5 SCC 1.
20
(2017) 10 SCC 1.
 Procedure, 1973. It is also submitted that right of women to be heard is in no way affected. She
is presented with a chance to be heard upon application and there is nothing in substantive or
criminal law that bars the Court from hearing her side. There is presence of principles of natural
justice as she can be heard before any finding on her husband’s act of adultery is given.21 It is
submitted that the procedure established by law is followed and there is no depriving of women’s
their life or liberty. In fact, the Court is bound to hear the side of women upon an application and
then give it verdict. When the women are allowed an hearing, the provision cannot be said to
violate Article 21.
5. It is humbly submitted that the Law Commission in its 42nd Report has though to repealing it but
also felt the time was not appropriate to make such radical changes22. Even in its 156th Report
has suggested that society has undergone change with women’s upliftment over past few decades
and only sought to remove the exemption given to women under Section 497.23 Justice Malimath
Committee wanted to make the provision gender neutral24 which pointed out the object was to
preserve marriage. It is pertinent to note that though these recommendations mayn't have been
accepted by the Government they were not in favour of scrapping the provision or haas held it to
be in unconstitutional.
6. The counsel humbly submits sacred texts of religious as how adultery is perceived. The Rigveda
condems adultery as papa meaning sin.25 Manusmriti also considers adultery as heinous offence.26
Even the Bible prohibits adultery in the Seventh Commandment punishable with death. (Exodus
20:12 and Leviticus 20:10).
7. It is further advanced that adultery is in nature of a crime and an accused cannot seek the
protection of Article 21 unless and until he has not been provided with an reasonable
opportunity27. It is reiterated that the procedure laid down in Section 198(1) read with S.198(2)
is reasonable as it provides a fair means to prosecute adultery. It was laid down keeping in mind
the sanctity of marriage where an outsider should not let to cause break down of the marriage. It
is with this perspective that the S.198 of CrPC, 1973 was enacted.

21
Sowmithri Vishnu v Union of India, AIR 1985 SC 1618.
22
Law Commission of India, 42nd Report: Indian Penal Code (1971), at page 326.
23
Law Commission of India, 156th Report: Indian Penal Code (1997) at page 172.
24
Report of the Committee on Reforms of Criminal Justice System (2003), at page 190.
25
Stephanie Jamison; Joel Brereton (2014). The Rigveda: 3-Volume Set. Oxford University Press. p. 566. ISBN 978-0-
19-972078-1.
26
Mandagadde Rama Jois (2015). Ancient Indian Law: Eternal Values in Manu Smriti. Universal Law Publishing. pp. 85–
86. ISBN 978-81-7534-259-0..
27
Jaswinder Singh vs State Of Uttarakhand,Criminal Misc. Application (C-482) No. 207 of 201.