Moot Court Petitioner

1ST NATIONAL
THE 1ST E-MEMORANDUM

MRINALINI D WRITING
EVI MEMORIAL NATIONAL MOOTCOMPETITION 2018
COURT COMPETITION
TEAM CODE: TC-0137
1st NATIONAL E-MEMORANDUM WRITING COMPETITION, 2018
IN THE MATTERS OF:
SHANAYA ...PETITIONER
V.
UNION OF INDIA ...RESPONDENT
ON SUBMISSION TO HON’BLE SUPREME COURT OF INDIA
WRITTEN SUBMISSIONS ON BEHALF OF PETITIONER
COUNSEL ON BEHALF OF PETITIONER
1 i
MEMORIAL ON
MEMORIAL ONBEHALF
BEHALFOF
OFTHE
THEPETITIONER
PETITIONER
1ST NATIONAL E-MEMORANDUM WRITING COMPETITION 2018
TABLE OF CONTENTS
 LIST OF ABBREVIATION……………….........................…….............................................................................................................4
 INDEX OF AUTHORITIES……………………………………………………………………………………..….………...................6
 STATEMENT OF JURISDICTION……………………………………………………………..…………………………...................9
 STATEMENT OF FACTS…………………………………………………………………………..…………………….………….....10
 ISSUES RAISED………………………………..………………………………………………………………………………….….....13
 SUMMARY OF ARGUMENTS…………...………………………………………………………………………….…….……….....14
 ARGUMENTS ADVANCED………………………………..………………….....................................................................................16
1. WHETHER THE WRIT PETITION FILED BEFORE THE HON’BLE SUPREME COURT IS MAINTAINABLE OR
NOT?............................................................................................................................................................................................................16
1) The Petitioner has locus standi to approach the Hon’ble Supreme Court….............................................................................................16
2) Question of law of General Public Importance arises………………………………………………………………………………….....17
3) Alternative Remedy does not bar issue of writ under Article 32…………………………………………………………………..……...19
4) Supreme Court has Constitutional duty to entertain the writ petition………………………………………………………….……..….20
2. WHETHER SECTION 497 IS CONSTITUTIONALLY VALID OR NOT?......................................................................................20
1.1 Violation of Article 14…………………………………………………………………………………………………...….......……...20
1.2 Violation of Article 15(3)………………………………………………………………………………………..…........…………......20
1.3 Conventions & Foreign Judgment……………………...…………………………………………………………………….…….....23
1.4 Critical Analysis of Previous Judgments…………………………………………………………………………..……………….…24
1.5 WHETHER THE PETITIONER IS LIABLE FOR THE ENTITLEMENT OF MAINTENANCE OR NOT?.............................28
2
MEMORIAL ON BEHALF OF THE PETITIONER
2 PRAYER……………………………………………………………………………………………………………………………..…..31
3
TABLE OF ABBREVIATIONS
& And
AIR All India Report
Anr. Another
Art. Article
Co. Corporate
C.o.I Constitution of India
Cr PC Code of Criminal Procedure
Cr LJ Criminal Law Journal
Ed. Edition
Hon’ble Honorable
HMA Hindu Marriage Act
IPC Indian Penal Code
i.e. That is
Ltd. Limited
Ors. Others
S. Section
SC Supreme Cases
SCC Supreme Court Cases
Ss. Sections
4
Supp. Supplementary volume

UP Uttar Pradesh
U.o.I. Union of India
v. versus
5
INDEX OF AUTHORITIES
CASES
Referred In
1. Nain Sukh Das v. State of Uttar Pradesh, (1953) SCR 1184………………………………………………………………………………………….15
2. S.P. Gupta v. President of India and Ors. 1981………………………………………………………………………………………………………..15
3. Maneka Gandhi v. Union of India, (1978) 2 SCR 621 ……………………………………………………………………………………………..…16
4. Yusuf Abdul Aziz v. State of Bombay and Another, AIR 1954 SC 321…………………………………………………………………………..….16
5. Sowmithri Vishnu v. Union of India, AIR 1985 SC 1618…………………………………………………………………………………………….16
6. V. Revathi v. Union of India (1988) 2 (SCC) 72……………………………………………………………………………………………..……16,24
7. T.N. Godavarman Thirumulkpad v. U.O.I. 2006 WP (c) No. 202 of 1995………………………………………………………..………………16
8. B.P. Singhal v. Union of India and Another, (2010) 6 SCC 331…………………………………………………………………..……………….16
9. S.P. Gupta v. Union of India, 1981 Supp SCC 87……………………………………………………………………………………………………16
10. Suraz India Trust v. Union of India and Another, (2011)4 SC 252…………………………………………………………...…………………..17
11. Aruna Ramachandra Shanbaug v. Union of India, (2011) 3 SC 298………………………………………………………………...…………..17
12. W. Kalyani v. State (2012) 1 SCC 358……………………………………………………………………………….………………………………17
13. Coffee Board v. Jt. Commercial Tax Officer7AIR 1971 SC 870 at p. 877, ¶ 16………………………………….……………………………18
14. Kharak Singh v. State of U.P., AIR 1963 SC 1295……………………………………………………………………….………………………..18
15. Daryao v. The state of Uttar pradesh AIR 996, (SC 1963)……………………………………………………………………………………….18
16. Tilokchand Motichand v. H.B. Munshi AIR 878 (SC 1970)……………………………………………………………………..……………….18
17. Ramesh Thappar v. The State of Madras, AIR 124, (SC 1950)……………………………………………………………………..…………..18
18. KK Kochunniv. State of Madras, AIR 1959 SC 725……………………………………………………………………………………..……….18
19. M.C. Mehta v. Union of India AIR 1086, (SC1987)………………………………………………………………………………….…………..18
20. Nilabati Behera v. State of Orissa AIR 1960, (SC 1993) ……………………………………………………………………………………….19
21. R.D. Shetty v. Airport Authority, (1979) 3 SCR 1014………………………………………………………………………………………..….19
6
22. E.P Royappa v. State Of Tamil Nadu, 1974(4) SCC 3………………………………………………………………………………………….19

23. Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487………………………………………………………………………………………………….20
24. Jagdish Jugtawat v. Manjit Lata, (2002) 5 SCC 422…………………………………………………………………………………………...27
25. Aher Mensi Ramsi v. Aherani Bal Mini Jetha, AIR 2001 SC 148: (2001) 3 SCC 117……………………………………………………..27
26. Thota Sesharathamma and Anr v. Thota Manikyamma (Dead) by Lrs. and Others, (1991) 4 SCC 312………………………………21
27. Earnest John White v. Kathleen Olive White and Ors. 1985 SC…………………………………………………………………………….27
28. Amarjit Kaur v. Harbhajan Singh and Ors. MANU/SC/0563/1993………………………………………………………………………...27
29. V. Bhagat v. D. Bhagat MANU/SC/0155/1994………………………………………………………………………………………………..27
30. The State of Madras v. A. Vaidyanatha Iyer MANU/SC/0108/1957……………………………………………………………………….28
31. Chetan Das v. Kamla Devi………………………………………………………………………………………………………………………28
32. Chanderkala Trivedi v. S.P. Trivedi………………………………………………………………………………….………………………..28
33. Narayan Ganesh Dastane v. Sucheta Narayan Dastane……………………………………………………………………………………28
34. S. Khushboo v. Kanniammal, (2010) 5 SCC 600……………………………………………………………………………………….……29
FOREIGN JUDGMENTS
35. Arbier v. Connolly,113 U. S. 27 (1885); ……………………………………………………………………………………………………..20
36. Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61 (1911); Railway Express Agency v. New York, 336 U. S. 106 (1949)…….20
37. McDonald v. Board of Election Commissioners, 394 U. S. 802 (1969) …………………………………………………………………20
38. Reed v. Reed, (1971) 404 US 76). ……………………………………………………………………………………………………………20
BOOKS REFERRED
1. M.P Jain, Indian Constitution Law (6th Ed. Reprint 2012, Lexis Nexis Butterworth Wadhwa, Nagpur
2. Ratanlal & Dhirajlal’s The Code of Criminal Procedure 22nd Edition
3. Ratanlal & Dhirajlal’s Indian Penal Code 35th Edition
TREATIES & INTERNATIONAL CONVENTIONS
7
(i) The Covenant on the Elimination of All Forms of Discrimination Against Women (CEDAW) (1979)
(ii) Vienna Declaration & Programme of Action (1993)
(iii) Beijing Declaration and Platform for Action (1995)
(iv) Universal Declaration of Human Rights (1948)
(v) Convention on the Political Rights of Women (1952)
(vi) International Covenant on Civil and Political Rights (1966)
(vii) International Covenant on Economic, Social and Cultural Rights (1966)
(viii) Declaration on the Elimination of All Forms of Discrimination against Women (1967)
(ix) Declaration on the Protection of Women and Children in Emergency and Armed Conflict (1974)
(x) Inter-American Convention for the Prevention, Punishment and Elimination of Violence against Women (1995)
(xi) Universal Declaration on Democracy (1997)
(xii) Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (1999)
LEGAL DATABASE
 Manupatra www.manupatrafast.com
 SCC Online www.scconline.com
 Advocate Khoj www.advocatekhoj.com
 Live Law https://www.livelaw.in
 Indian Kanoon https://www.indiankanoon.org
8
STATEMENT OF JURISDICTION
The Appellant has approached the Hon’ble Supreme Court of India through Writ Petition filed under Article 32 of the Constitution of India. The
matter has been listed for hearing. Article 32 of the Constitution of India 1949 reads out as;
32. Remedies for enforcement of rights conferred by this Part

1. The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed
2. 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
3. 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 )
4. The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution
The Supreme Court of India has a Jurisdiction to entertain and hear appeals by granting against any kind of Judgment or order made by
any court or Tribunal in any proceedings and the exercise of its power is left entirely to the discretion of the Supreme Court.
The memorandum for appellant in present case set forth the facts, contentions and arguments.
9
STATEMENT OF FACTS
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 12th 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, moreover engaged in taking care of her daughter and house. Rohan’s job mandated tours and visits. Shanaya’s
10
behaviour created few troubles in their married life. Shanaya never used to visit his in-laws. Their married life was filled with frequent
small fights, she even used to go to her matrimonial home for petty excuses.
7. In early 2017, Rohan got promoted again and was transferred to Tata Nagar where he had to shift alone. However, after 1 year, he was
accompanied by his wife and daughter.
8. Shanaya came to know that Rohan was accompanied by Ms. Niharika on his tours, which continued even after her arrival. When Shanaya
became suspicious about Rohan and Niharika, she intentionally called her to a small kitty party. Where she found that they both were
quite close and comfortable with each other’s company.
9. During an intense fight, Shanaya alleged Rohan of illicit relationship and physical intercourse with Niharika during his tours. Rohan was
shocked to hear such allegations and tried to explain that all the allegations are wrong. Shanaya informed her in-laws and also threatened
them to first kill Niharika and her parents and than herself commit suicide, if Rohan doesn’t quit his job and move back to Jaipur. She
misbehaved with her in-laws and asked them to leave the place immediately. Rohan boarded his parents train back to Jaipur and even he
was not allowed to enter his own house.
10. Shanaya sent a mail to all employees of company attaching her allegations against Rohan and charged few people of forgery. She got her
accusations supportive when guard and a owner of grocery shop admitted the presence of Rohan and Niharika together most often,
moreover, she also got a footage of both of them in Rohan’s car. Her mail to Rohan’s company intended to get him fired up from
company reason owing to legal restriction.
11. Rohan was not allowed entry to his own house ever since the incident. He also stopped giving money to his wife and daughter. Shanaya
withdrew all the money from joint account but when the money exhausted she started threatening Rohan for Money. Subsequently,
Rohan lost his job and moved back to Jaipur to start a small business for living. Whereas Shanaya went back to her matrimonial house
and admitted her daughter to a school thereof.
11
12. Appeal in Lower Court- Shanaya filed for Divorce and Rohan was directed to pay 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.
12
ISSUES RAISED
[ISSUE 1]
WHETHER THE WRIT PETITION FILED BEFORE THE HON’BLE SUPREME COURT OF INDIA IS MANTAINABLE
OR NOT?
[ISSUE 2]
WHETHER SECTION 497 IPC IS CONSTITUTIONALLY VALID OR NOT ?
[ISSUE 3]
WHETHER THE PETITIONER IS LIABLE FOR THE ENTITLEMENT OF MAINTENANCE?
13
SUMMARY OF ARGUMENTS
Whether the Writ Petition filed before the Hon’ble Supreme Court of India is maintainable or not?
The writ Petition before the Hon’ble Supreme court is maintainable because there is violation of fundamental rights of the appellant where
Article 14 and 15 are being violated. Where fundamental rights can be questioned on the grounds of laches, where disputed question of facts are
involved. Also alternative remedy does not bar issue of writ under Article 32. The alternative remedies in the relevant laws are insufficient and
ineffective. Thus Supreme Court has powers and precedents to grant relief in the present case.
Whether Section 497 IPC is constitutionally valid or not?

Section 497 IPC is gender biased in two aspects: - 1) Wife cannot file petition against her husband for Adultery and 2) women is an abettor
The country is developing in every aspect and giving equal status to all genders where fundamental rights are enjoyed by every citizen. Equality
is the focus in all the opportunities and fields. The same should be followed in legislature. Law has never been gender biased but has many times
reflected and questioned the constitutional validity of Section 497 IPC because of the limitations which is time to time questioning the equal
position to both genders. Not only the section is against a women but also biased with men. The plea of a wife is rejected in the ground state
without considering the reasons and going through the roots. The burden always lies on the appellant to proof the accusation but here women is
not even granted the chance to prove her allegations and second school of thought gives punishment only to a men non-inclusive of women on
same allegations. She is always a victim and men has always to suffer.
Whether Maintenance should be provided or not?

Whether it being taking help of judiciary or getting off touch with mutual consent, the alimony to the wife is obvious. Exceptionally if a women
has committed adultery then husband is not liable to pay alimony to her but when the wife finds her husband to be guilty of adultery with another
women then law has put restrictions on the petition of divorce by women, hence the situation not amounting to grant of alimony. When the
14
spouses get separated with mutual consent and without taking any interference of the judiciary, still the husband owes certain responsibilities
towards her wife and child. The monthly expenses of his wife and child is to be fulfilled by husband providing alimony whether it being fixed or
on monthly basis noticing to be 1/3rd of the monthly income of husband. Changes in Section 497 IPC can make fair judgments for both the
parties without being biased of genders. The data and time has reversed the situation of men and women’s infidelity. And if not so then the
appellant is liable to obtain Divorce u/s 13 (1) of Hindu Marriage Act, 1955 and can be provided pendelite maintenance and alimony
respectively u/s 24 & u/s 25 of Hindu Marriage Act, 1955.
15
ARGUMENTS ADVANCED
[ISSUE 1]
WHETHER THE WRIT PETITION FILED BEFORE THE HON’BLE COURT IS MAINTAINABLE OR NOT?
The Petitioner herein is filing the present Writ Petition under Article 32 of the Constitution of India for issuance of a Writ, order or direction
in the nature of Mandamus or any other appropriate Writ or order challenging the constitutional validity of Section 497 of Indian Penal Code,
1860 (hereinafter IPC) which defines ‘Adultery’ and prescribes the punishment. The Petitioner herein also challenges Section 198(2) Cr PC.
These Sections are apparently discriminatory and they violate the principles of gender justice.
1) Petitioner has locus standi to approach the court

The issue to be discussed hereof is with the petitioner’s locus standi to approach the Hon’ble Court
Article 32 seeks to protect the fundamental rights of a person and therefore, a precondition for its applicability is that there has been a
violation of fundamental rights. Article 14 and 15(3) of the constitution are being infringed.
In 1953, the Supreme Court in Nain Sukh Das v. State of Uttar Pradesh10 held that “even where the Supreme Court finds that a law must
be held to be void, being in contravention of some provision of the Constitution, the Court cannot give relief under Article 32 unless it is
satisfied that the right, the infringement of which is complained of by the Petitioner, is a fundamental right.”
If no legal injury is caused, then petitioner has no locus standi to maintain the writ petition11 but in the present case Section 497 IPC and
198(2) are not supportive to equality and steps towards discrimination.
The adverse impact of Section 497 IPC and Section 198(2) Cr PC upon gender justice is a great concern to be addressed as it violates the
rights of a citizen guaranteed under Article 14 and 15(3) of the Constitution. Hence, the Petitioner has locus standi to file the instant Writ
10
(1953) SCR 1184
11
S.P. Gupta v. President of India and Ors. 1981
16
Petition challenging the said provisions before this Hon’ble Court under Article 32 of the Constitution.
The contention is not only ill founded, but does not accord with the principle enunciated by this Court in Maneka Gandhi v. Union of
India12 that when interpreting the provisions of the Constitution conferring fundamental rights, the attempt of the Court should be to
expand the reach and ambit of the fundamental rights rather than to attenuate their meaning and content.
The provisions are discriminatory and violates Article 14 of Constitution of India. Section 497 IPC was challenged before this Hon’ble
Court on several occasions.13 Thus, the challenge was repelled by this Hon’ble Court. With due respect, it is submitted that the
contentions have not been appreciated in the right sense in previous decisions. However, in view of the emerging jurisprudence on
Articles 14 and 15(3) of the Constitution and the changed social conditions, this writ petition is filed seeking reconsideration and a
direction to declare s. 497 IPC and s. 198(2) Cr PC as unconstitutional.
When the petitioner establishes the infringement of his fundamental rights, the court has no discretion but to issue an appropriate writ in
his favour.14
2) Question of general public importance- if in case the petitioner doesn’t has the locus to maintain the writ petition then the other option
available is when the question of general public importance arises.
In B.P. Singhal v. Union of India and Another15:- A Constitution Bench of the Supreme Court framed a specific question on the
maintainability of the writ petition and went on to answer the question in the negative. The Court examined the rules of a PIL as laid
down in S.P. Gupta v. Union of India16 and went on to hold that “the Petitioner has no locus to maintain the petition in regard to the
12
(1978) 2 SCR 621
13
Yusuf Abdul Aziz v. State of Bombay and Another, AIR 1954 SC 321; Sowmithri Vishnu v. Union of India, AIR 1985 SC 1618; and V. Revathi v. Union of India (1988) 2
(SCC) 72
14
T.N. Godavarman Thirumulkpad v. U.O.I. 2006 WP (c) No. 202 of 1995
15
(2010) 6 SCC 331
16
1981 Supp SCC 87
17
prayers claiming relief for the benefit of the individual governors.” However, the Court held that with regard to the general question of
public importance referred to the Constitution Bench, touching upon the scope of Article 156(1) and the limitations upon the doctrine of
pleasure, the petitioner had the necessary locus.
In Suraz India Trust v. Union of India and Another17 :- By way of the writ petition, it sought a review of certain decisions of the Supreme
Court pertaining to the issue of appointment of judges to the Supreme Court. The Attorney General appearing on behalf of
the Union raised a specific issue regarding the maintainability of the petition at the behest of a trust, as it could not claim violation of any
of its fundamental rights. Although the Court did not answer the question of maintainability (due to the reason that the case was placed
before the Chief Justice of India for further directions), the Court did refer to B.P. Singhal and observed that in that case, the writ petition
had been decided in spite of the fact that the petitioner did not have the necessary locus.
In Aruna Ramachandra Shanbaug v. Union of India,18 :-The case is more famous for the issues pertaining to euthanasia. At the outset
however, the Court stated that it could have dismissed the petition on the short ground that under Article 32, the petitioner has to prove a
violation of a fundamental right and that the petitioner had not shown the violation of any of her fundamental rights. However, in view of
the importance of the issues involved, the Court decided to go deeper into the merits of the case.
The previous judgments and the decisions against violation of fundamental rights is a open space to quash the writ petition similar to W.
Kalyani v. State 19 But, If the petitioner has no locus to maintain the writ petition under article 32 then the importance of the issue raised
should be the priority to be noticed as to establish the changes in provisions of Section 497 IPC and 198(2) Cr PC and also the changing
norms and the differentiated data of present time depicting the social conditions is a challenge to the ongoing laws which is somewhere
gender biased.
17
(2011)4 SC 252
18
(2011) 3 SC 298
19
(2012) 1 SCC 358
18
3) Alternative Remedy does not bar issue of writ under Article 32

When a breach of fundamental right is made in the petition there the provisions of other remedies do not stand in the way of exercising
power under Art. 32 of the Constitution of India. It was held in the case of Coffee Board v. Jt. Commercial Tax Officer.20 It is wholly
erroneous to assume that before the jurisdiction of the Supreme Court could be invoked the applicant must either establish that he has no
other remedy adequate or otherwise or that he has exhausted such remedies as the law affords and has yet not obtained proper redress, for
when once it is proved to the satisfaction of the Supreme Court that by state action the fundamental right of a petitioner under Art. 32 has
been infringed, it is not only the right but also the duty of the Supreme Court to afford him by passing appropriate order in that behalf.21
The right to approach this Hon’ble Court in case of violation of fundamental rights is itself a fundamental right enshrined in Art. 32.22
The remedy provided by Art. 32 is a fundamental right and not merely discretionary power of the court.23 Moreover, this Hon’ble Court
has on multiple occasions expressly rejected an argument that called for exhaustion of local remedies.24
The mere existence of an adequate alternative legal remedy cannot per se be a good and sufficient ground for throwing out a petition
under Art.32 if the existence of a fundamental right and breach, actual or threatened, of such right and is alleged prima facie established
on the petition.25
4) Supreme Court has Constitutional Duty to Entertain the Writ Petition- The Constitutional obligation of this Hon’ble Court as the
guarantor of fundamental rights has been interpreted broadly26and as one that exists independent of any other remedy that maybe
20
7AIR 1971 SC 870 at p. 877, ¶ 16
21
Kharak Singh v. State of U.P., AIR 1963 SC 1295
22
The Constitution of India, 1950
23
Daryao v. The state of Uttar pradesh AIR 996, (SC 1963); Tilokchand Motichand v. H.B. Munshi AIR 878 (SC 1970)
24
Supra Note 21; Ramesh Thappar v. The State of Madras, AIR 124, (SC 1950)
25
KK Kochunniv. State of Madras, AIR 1959 SC 725
26
MC Mehta v. Union of India AIR 1086, (SC 1987)
19
available.27 This is particularly true in cases of grave public importance, where relief may not be denied on mere technical grounds as in
the present case the social changes demands for a shift in the gender equality. Subsequently, it is submitted that the refusal to entertain
the writ petition would be inconsistent with the aforesaid obligation.28
The petitioner is seeking enforcement of fundamental rights, imposition of restrictions and laying down guidelines on fundamental rights
and invokes jurisdiction of the Supreme Court vested in it under Art. 32 and other provisions of the constitution. The Writs are thus
maintainable.
[ISSUE 2]
WHETHER SECTION 497 IPC IS CONSTITUTIONALLY VALID OR NOT?
1.1 Violation of Article 14

The true scope and nature of Article 14 of the Constitution was highlighted in Maneka Gandhi v. Union of India29; R.D. Shetty v. Airport
Authority30; E.P Royappa v. State Of Tamil Nadu,31 it was held as follows:
“The basic principle which therefore informs Articles 14 is equality and inhibition against discrimination. Now, what is the content and
reach of this great equalizing principle? It is a founding faith, to use the words of Bose, J., "a way of life", and it must not be subjected to
a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to
do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "crib
bled, cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to
arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the
27
Nilabati Behera v. State of Orissa AIR 1960, (SC 1993); Kharak Singh v. State of Uttar Pradesh, AIR 1295, (SC 1963).
28
Supra Note 21; Supra Note 24
29
(1978) 2 SCR 621
30
(1979) 3 SCR 1014
31
1974(4) SCC 3
20
whim and caprice of an absolute monarchy. Where an act is arbitrary it is implicit in it that it is unequal according to political logic and
constitutional law and is therefore violative of Art. 14. Articles 14 strike at arbitrariness in State action and ensure fairness and equality
of treatment."
Further, in Ajay Hasia v. Khalid Mujib,32 it was held as follows:
“If the Society is an "authority" and therefore "State" within the meaning of Article 12, it must follow that it is subject to the
constitutional obligation under Article 14. The true scope and ambit of Article 14 has been the subject matter of numerous decisions and
it is not necessary to make any detailed reference to them. It is sufficient to state that the content and reach of Article 14 must not be
confused with the doctrine of classification. Unfortunately, in the early stages of the evolution of our constitutional law, Article 14 came
to be identified with the doctrine of classification because the view taken was that Article forbids discrimination and there would be no
discrimination where the classification making the differentia fulfils two conditions, namely, (i) that the classification is founded on an
intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and (ii) that
differentia has a rational relation to the object sought to be achieved by the impugned legislative or executive action.”
The preposition that those who are situated on the same footing are liable to be treated alike is a settled preposition in foreign
jurisprudence as well.33 Section 497 of IPC and Section 198(2) of Cr PC plainly fail to meet this test of equality. The implication that
men are arbitrarily punished and women are not for committing the same act is unjust, illegal and unconstitutional.
1.2 Violation of Article 15(3)

Section 497 IPC cannot be interpreted as a beneficial provision under Article 15 (3) of the Constitution of India. Article 15(3) of the
constitution states as follows: “Nothing in this article shall prevent the State from making any special provision for women and children”.
32
AIR 1981 SC 487
33
Arbier v. Connolly,113 U. S. 27 (1885); Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61 (1911); Railway Express Agency v. New York, 336 U. S. 106 (1949);
McDonald v. Board of Election Commissioners, 394 U. S. 802 (1969) Reed v. Reed, (1971) 404 US 76).
21
Article 15(3) permits affirmative action in favour of women. This provision neither meant to exempt married women from the liability of
punishment in criminal offences nor a wife from prosecuting her husband. Balance in the provision of both complications under the
section should be observed and justified by the Hon’ble Court, where discrimination against a particular sex would offend Articles 14
and 15 of the Constitution of India, when men and woman are on equal footing.
The scope of Article 15(3) of the Constitution of India was explained by this Hon’ble Supreme Court in Thota Sesharathamma and Anr
v. Thota Manikyamma (Dead) by Lrs. and Others,34 in the following words, “Freedom of contract would yield place to public policy
envisaged above. Its effect must be tested on the anvil of socioeconomic justice, equality of status and to oversee whether it would sub
serve the constitutional animation or frustrates. Art. 15(3) relieves from the rigour of Art. 15(1) and charges the State to make special
provision to accord to-women socioeconomic equality. As a fact, Art. 15(3) as a fore runner to common code does animate 'to 'make law
to accord socioeconomic equality to every female citizen of India, irrespective of religion, race, caste or region.”
Therefore, the purpose of Article 15(3) is to further socio-economic equality of women and has always been interpreted as such. Article
15(3) permits reservation and the like for special classes. It cannot operate as a license for criminal exemption and the jurisprudence on
Article 15(3) clearly evidences this.
The impugned provisions have no justification or rational basis for the differential treatment which have been accorded to men and
women. Married men are exempted from being prosecuted by the wife for adultery, which caused the Petitioner being legally restricted to
the provision of Section 497 IPC with context to the same there should be a fair deal for both the genders. The assumption that women
are incapable of committing adultery is irrational and perverse in addition to that, the wife cannot prosecute her husband is also
repugnant.
It is important to note that women cannot prosecute/file a complaint under Section 497 IPC read with 198(2) Cr PC because Section 198
34
(1991) 4 SCC 312
22
(2) expressly lay down as follows:“no person other than the husband of the woman shall be deemed to be aggrieved by any offence
punishable under section 497 or section 498 of the said Code.”
Therefore, the woman whose husband is committing adultery is left with no remedy. Wives of those men committing adultery are also
equally aggrieved by the adulterous act. Excluding her from the purview of initiating criminal prosecution has no rhyme or reason. She is
situated in the same position as an aggrieved husband whose wife has committed adultery. Such an exclusion is unjust, illegal and
arbitrary and violative of the fundamental rights under Article 14 and 15 of the Constitution of India.
Hon’ble Court is humbly requested that the changes in provision of Section 497 IPC should be taken into consideration according to the
rights available to women under Article 15 (3) where it is clearly stated that: Nothing in this article shall prevent the State from making
any special provision for women and children. Both the aspects 1) wife cannot prosecute husband and 2) Women is not liable to be
punished for committing adultery should be changed with the social changes and bring uniformity in section 497 IPC and Section 198 (2)
Cr PC
1.3 International Conventions And Treaties On Gender Equality.

In 1869, In Subjection of Women John Stuart Mill stated, “the subordination of one sex to the other ought to be replaced by a principle
of perfect equality, admitting neither power or privilege on the one side nor disability on the other”.
CEDAW35 1979 is the United Nations' landmark treaty marking the struggle for women's right. It is regarded as the Bill of Rights for
women. It graphically puts what constitutes discrimination against women and spells out tools so that women's rights are not violated and
they are conferred the same rights.
The equality principles were reaffirmed in the Second World Conference on Human Rights at Vienna in June 1993 36 and in the Fourth
35
The Covenant on the Elimination of All Forms of Discrimination Against Women
36
Vienna Declaration & Programme of Action
23
World Conference on Women held in Beijing in 199537. India was a party to this convention and other declarations and is committed to
actualize them. In 1993 Conference, gender-based violence and all categories of sexual harassment and exploitation were condemned. A
part of the Resolution reads thus: “The human rights of women and of the girl child are an inalienable, integral and indivisible part of
universal human rights. The World Conference on Human Rights urges governments, institutions, inter-governmental and non-
governmental organizations to intensify their efforts for the protection and promotion of human rights of women and the girl child.”
The other relevant international instruments on women are: (i) Universal Declaration of Human Rights (1948), (ii) Convention on the
Political Rights of Women (1952), (iii) International Covenant on Civil and Political Rights (1966), (iv) International Covenant on
Economic, Social and Cultural Rights (1966), (v) Declaration on the Elimination of All Forms of Discrimination against Women (1967),
(vi) Declaration on the Protection of Women and Children in Emergency and Armed Conflict (1974), (vii) Inter-American Convention
for the Prevention, Punishment and Elimination of Violence against Women (1995), (viii) Universal Declaration on Democracy (1997),
and (ix) Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (1999).”
1.4 Critical Analysis Of Previous Judgments

This Hon’ble Court in Sowmithri Vishnu38 Case has held as following:
“Section 497 does not envisage the prosecution of the wife by the husband for 'adultery'. The offence of adultery as defined in that
section can only be committed by a man, not by a woman. Indeed, the section provides expressly that the wife shall not be punishable
even as an abettor. No grievance can then be made that the section does not allow the wife to prosecute the husband for adultery. The
contemplation of the law, evidently, is that the wife, who is involved in an illicit relationship with another man, is a victim and not the
37
Beijing Declaration and Platform for Action
38
(1985) Supp SCC 137
24
author of the crime. The offence of adultery, as defined in section 497, is considered by the Legislature as an offence against the sanctity
of the matrimonial home, an act which is committed by a man, as it generally is. Therefore, those men who defile that sanctity are
brought within the net of the law. In a sense, we revert to the same point: Who can prosecute whom for which offence depends, firstly, on
the definition of the offence and, secondly, upon the restrictions placed by the law of procedure on the right to prosecute.”
It is submitted that when this Hon’ble Court has stated that the contemplation of the law is that the wife who is involved in an illicit
relationship with another man is a victim and not the author of the crime. Such a premise is illogical, arbitrary and has no sound or
rational basis. Also, if that be the case, this Hon’ble Court has not addressed the contention as to why a woman is not permitted to
prosecute her husband, who, even as per the observation of this Hon’ble Court is an author of the crime.
In Revathi39 this Hon’ble Court held as follows:
“The argument in support of the challenge is that whether or not the husband has the right to prosecute the disloyal wife, the wife must
have the right to prosecute the disloyal husband. Admittedly under the law, the aggrieved husband whose wife has been disloyal to him
has no right under the law to prosecute his wife, in as much as by the very definition of the offence, only a man can commit it, not a
woman. 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.
They 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. Whether one does or
does not subscribe to the wisdom or philosophy of these provisions is of little consequence. For, the Court is not the arbiter of the
wisdom or the philosophy of the law. It is the arbiter merely of the constitutionality of the law.”
39
(1998) 2 SCC 72
25
It is submitted that the above explanation is not the intent of the legislature. The sole object of the exemption provided for women from
being prosecuted for committing the offence is that the definition treats women as incapable of committing offence and the property of
the husband.
Further, in the said case, this Hon’ble Court has held:
“Section 497 of the Indian Penal Code and Section 198(1) read with Section 198(2) of the Criminal Procedure Code go hand in hand
and constitute a legislative packet to deal with the 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(l) 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.”
It is submitted that if the above explanation is to be accepted, even an unmarried woman is ‘an outsider’ for the matrimonial home. Such
26
persons ought to have been included as the persons capable of committing the offence. A woman is unable to prosecute merely because
of the given definition of the offence. To address the issue the explanation by the Hon’ble Court is insufficient. The equations are tried to
be balanced which is not ought to be the justification which is needed hereby.
It is obvious that no adultery can be committed unless a woman is a consenting partner. The judicial perception that only a man can be
"an outsider", who has potential to invade the peace and privacy of the matrimonial unit and to poison the relationship between the
unfaithful wife and her husband, therefore, seems to be, with due respect, less convincing and unrealistic. "An outsider woman", can, like
"an outsider man", be equally capable of "invading" the matrimonial peace and privacy as well as of "poisoning" the relationship of not
only her own matrimonial home but also that of her paramour. Similarly, the judicial opinion that Section 198(1) read with Section
198(2) Cr PC, disqualifying the wife of an unfaithful husband for prosecuting him for his promiscuous behaviour, with due respect, is
unconvincing and illogical.
Article 14 (1) states that “all persons shall be equal before the courts and tribunals”.
Article 26 emphatically lays down that “All persons are equal before the law and are entitled without any discrimination to the equal
protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status.”
Moreover, the Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (hereinafter ‘CEDAW’) is another
peculiar instrument proscribing discrimination. India is a party to CEDAW and the provisions are therefore, binding on it.
Article 1 defines discrimination as follows: “Any distinction, exclusion or restriction made on the basis of sex which has the effect or
purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of
equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other
27
field.”
S.198 (2) of Cr PC by specifically excluding women from the eligibility to prosecute directly violates the said provision. Article 16 lays
down an express prohibition against “discrimination against women in all matters relating to marriage and family relations.”
[ISSUE 3]
WHETHER THE PETITIONER IS LIABLE FOR THE ENTITLEMENT OF MAINTENANCE?

It is humbly submitted before the Hon’ble Court that the Petitioner is liable for the entitlement of maintenance. In order to avoid
multiplicity of proceedings, the benefits of personal law for award of or continuance of maintenance should be given to the claimant
where there is ineligibility u/s 125 Cr PC.40 An order of maintenance u/s 125 Cr PC does not foreclose remedy u/s 18(2) of the Hindu
Adoption and Maintenance Act. These Acts are co-existent, mutually complimentary, supplementary and in aid and addition of each
other.41
The petitioner is liable to seek Divorce and maintenance in accordance with the personal law guaranteed under Hindu Marriage Act,
1955. Divorce under Section 13 of Hindu Marriage Act, 1955 has been stated as;
“[1] Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the
husband or the wife, be dissolved by a decree of divorce on the ground that the other party
(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse.”
Whereas Section 2442 states as follows:- “Maintenance pendente lite and expenses of proceedings. Where in any proceeding under this Act
40
Jagdish Jugtawat v. Manjit Lata, (2002) 5 SCC 422
41
Aher Mensi Ramsi v. Aherani Bal Mini Jetha, AIR 2001 SC 148: (2001) 3 SCC 117
42
Hindu Marriage Act, 1955
28
it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support
and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the
petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income
and the income of the respondent, it may seem to the court to be reasonable: [Provided that the application for the payment of the
expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from
the date of service of notice on the wife or the husband, as the case may be.]”
"Under Section 24 of the Act, the court has to see if the applicant who may either be wife or husband has no independent income
sufficient for her or his support and the necessary expenses of the proceeding, and then award expenses of the proceeding and such sum
every month, having regard to the applicant's own income or the income of the respondent which may seem to the court to be reasonable.
This section may be contrasted with Section 25 of the Act which deals with permanent alimony and maintenance.
Under Section 25, the court may order the respondent to pay to the applicant for her or his maintenance and support, till her or his
lifetime, either a lump sum amount or such monthly or periodical sum, having regard to the respondent's own income and other property,
if any, and the income and other property of the applicant, the conduct of the parties and other circumstances of the case, which the court
might deem just. It may be noticed that heading of Section 24 of the Act is "Maintenance pendente lite and expenses of proceedings".
The section, however, does not use the word "maintenance", but it clearly appears that the words "support" and "maintenance" are
synonymous, "Support" means "to provide money for a person to live on", like "he supports a family" or "he supports his old mother."
Maintenance is "an act of maintaining", i.e. to support with money. It may be useful at this stage to refer to the definition of
"maintenance"43.
Under Section 3 of Hindu Adoptions and Maintenance Act, 1956, "maintenance" includes-
43
Hindu Adoption and Maintenance Act, 1956
29
(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment ;
(ii) in the case of an unmarried daughter also the reasonable expenses of incident to her marriage. I would, therefore, think that when we
talk of maintenance and support, the definition of "maintenance" as given in the Act of 1956 should be adopted. Section 18 of the Act of
1956 also refers to maintenance of wife and gives the circumstances under which a Hindu wife is entitled to live separately from her
husband without forfeiting her claim to maintenance".
Husband and wife executed divorce agreement on grounds of incompatibility of marriage and remote chances of living together. The
wife was living separately in pursuance of the agreement. And the Husband has stopped providing money to wife and daughter, after
getting separated through mutual consent. To sum up all the aspects, i) as the daughter remained with mother, it is sole responsibility of a
father to handle the expenses of an unmarried daughter but he miserably failed with his responsibilities. ii) The suffering of the child due
to conduct of the parents should not be the scenario to create a negative impact on their social and psychological development. iii) The
petitioner hereby can provide their daughter a good living with the maintenance by husband. iv) The practical probability of living
together would be restless and nil in the pertaining situation, moreover, v) the petitioner has no source of income too, thus all the aspects
mentioned are favourable to make the petitioner liable for maintenance.
30
PRAYER
In the light of the issues raised, arguments advanced and authorities cited, may this Hon’ble Court be pleased to:
 Declare that the Writ Petition filed by the petitioners is maintainable.
 Hold that Section 497 IPC is unconstitutional.
 Hold that Maintenance should be provided to the Petitioner.
And Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests of Justice, Fairness, Equity and Good Conscience.
And for this, the Respondent as in duty bound, shall humbly pray.
Counsel on Behalf of Petitioner
31

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1ST NATIONAL

THE 1ST E-MEMORANDUM

TEAM CODE: TC-0137

1st NATIONAL E-MEMORANDUM WRITING COMPETITION, 2018

IN THE MATTERS OF:

UNION OF INDIA ...RESPONDENT

ON SUBMISSION TO HON’BLE SUPREME COURT OF INDIA

WRITTEN SUBMISSIONS ON BEHALF OF PETITIONER

COUNSEL ON BEHALF OF PETITIONER

Supp. Supplementary volume

22. E.P Royappa v. State Of Tamil Nadu, 1974(4) SCC 3………………………………………………………………………………………….19

TREATIES & INTERNATIONAL CONVENTIONS

32. Remedies for enforcement of rights conferred by this Part

Whether Section 497 IPC is constitutionally valid or not?

Whether Maintenance should be provided or not?

1) Petitioner has locus standi to approach the court

3) Alternative Remedy does not bar issue of writ under Article 32

WHETHER SECTION 497 IPC IS CONSTITUTIONALLY VALID OR NOT?

1.1 Violation of Article 14

Further, in Ajay Hasia v. Khalid Mujib,32 it was held as follows:

1.2 Violation of Article 15(3)

1.3 International Conventions And Treaties On Gender Equality.

1.4 Critical Analysis Of Previous Judgments

In Revathi39 this Hon’ble Court held as follows:

Further, in the said case, this Hon’ble Court has held:

WHETHER THE PETITIONER IS LIABLE FOR THE ENTITLEMENT OF MAINTENANCE?

Counsel on Behalf of Petitioner

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