Ratna Moot JC1

CODE:
Affidavit-P
JAGARLAMUDI CHANDRAMOULI 2ndNATIONAL MOOT COURT COMPETITION, 2023
IN THE HON’BLE SUPREME COURT OF INDIA

REVIEW JURISDICTION
Review PETITION NO. ----OF 2023
IN THE MATTER OF–
CONSORTIUM OF RELIGIONS …PETITIONER
Versu
s
UNION OF INDIA AND OTHERS …RESPONDENT
(UNDER ARTICLE 137 OF THE
CONSTITUTION OF INDIA)
(UNDER ARTICLE 137 OF THE CONSTITUTION OF INDIA)
UPON SUBMISSION TO THE HON’BLE JUDGES OF JC COLLEGE MOOT COURT

MEMORIAL ON BEHALF OF THE PETITIONER
TABLE OF CONTENTS
1.LIST OF ABBREVIATIONS................................................................ 1
2.INDEX OF AUTHORITIES.................................................................. 2
I. BOOKS AND COMMENTARIES REFERRED
II. STATUITES REFERRED
III. LEGAL DATABASE
IV. REPORTS
V. TABLE OF CASES
3. STATEMENT OF JURISDICTION..............................................................4
4. STATEMENT OF FACTS .............................................................................5 - 6
5. ISSUES RAISED..............................................................................................7
6. SUMMARY OF ARGUMENTS.....................................................................8 - 9
7. ARGUMENTS ADVANCED .........................................................................10 - 27
8. RECCOMENDATIONS…………………………………………………….28
9. PRAYER……………………………………………………………………..29
LISTOFABBREVIATIONS
ABBREVIATIONS DESCRIPTION
AIR All India Reporter
Anr Another
Art Article
¶ Paragraph
S Section
Hon’ble Honourable
HC High Court
SC Supreme court
SCC Supreme Court Cases
PIL Public Interest Litigation
IPC Indin Penal Code
CrPC Criminal Procedure Code
Edn Edition
Ors Others
Supp Supplementary
U.O.I Union Of India
V. Versus
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INDEX OF AUTHORITIES
I.INDEX OF AUTHORITIESI. BOOKS AND COMMENTARIES REFERRED
i. Mulla, the Code of Civil Procedure (Lexis Nexis, 19th Edition, 2017).
ii. P. S. A. Pillai, Dr. K. I. Vibhute, Criminal Law (Lexis Nexis, 12th Edition, Re. 2016).
iii. Ratanlal & Dhirajlal, Indian Penal Code (Lexis Nexis, Nagpur, 30th Ed., 2008).
iv. Ratanlal & Dhirajlal, the Code of Criminal Procedure (Lexis Nexis, 22nd Edition, 2017).
v. S. N. Mishra, the Code of Criminal Procedure, 1973 (Central Law Publications, 20thvi.
Edition, 2016).
vi. Surya Narayan Mishra, Shriniwas Gupta (ed.), Indian Penal Code (Central Law Agency,
Allahabad, 20th Edi, 2016).
vii. Batuk Lal, the Code of Criminal Procedure, 1973 (Central Law Agency, 2017).
viii. Dr. J. N. Pandey, Dr. Surendra Sahai Srivastava (ed.), Constitutional Law of India (Central
Law Agency, 54th Edition, 2016).
II. STATUTES REFERRED
:i. The Code of Criminal Procedure, 1973.
ii. The Constitution of India, 1950.
iii. The Indian Evidence Act, 1872.
iv The Indian Penal Code, 1860.

v. Supreme Court Rules, 1966.
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III. LEGAL DATABASE
I. http://www. manupatra.com /
II . http://www.ssconline.com/
III. http://www.indiankanoon.org/
IV.REPORTS
 The 42nd Law Commission report.

 The 152nd Law Commission report.
 The Malimath Committee on Reforms of Criminal Justice System, 2003.
V. TABLE OF CASES
1. Yusuf Abdul Aziz vs The State Of Bombay ... 1954 AIR 321, 1954 SCR 930
2. Smt. Sowmithri Vishnu vs Union of India & Anr …1985 AIR 1618, 1985 SCR Supl. (1) 741
3. V. Revathi vs Union Of India & Ors on 25 February, 1988 AIR 835, 1988 SCR (3) 73
4. Justice K.S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors.
5. Union of India Vs. Nareshkumar Badrikumar Jagad & Ors, 2013
6. R. Rajagopal and Ors. v. State of Tamil Nadu, 1994 SCC (6) 632
7. Suthenthiraraja @ Santhan And ... vs State Through Dsp/Cbi, Sit, ... on 8 October, 1999
8. .E.V.Chinnaiah vs State Of Andhra Pradesh And Ors on 5 November, 2004
9. Chetan Dass Appellant vs Kamla Devi Respondent on 17 April, 2001
10. Smt. Sarla Mudgal ... vs Union Of India & Ors on 10 May, 1995
11. Hiral P. Harsora And Ors vs Kusum Narottamdas Harsora And Ors on 6 October, 2016
12. .Pt. Parmanand Katara vs Union Of India & Ors on 28 August, 1989
13. Harvinder Kaur vs Harmander Singh Choudhry on 15 November, 1983
14. Ranjit Thakur v. Union of India [Ranjit Thakur v. Union of India, (1987) 4 SCC 611
15. Dimes v Grand Junction Canal Proprietors (1852) 3 HL Cas 759
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STATEMENT OF JURISDICTION
The Petitioner herein has invoked the Review Jurisdiction of this Hon’ble Court under article
137 of the Constitution of India, 1950. The petitioner most humbly and respectfully submits to
the jurisdiction of the Hon’ble Supreme Court in the present matter.
ARTICLE 137 REVIEW OF JUDGMENTS OR ORDERS PASSED BY THE SUPREME

COURT
The Supreme Court enjoys review jurisdiction under Article 137 of the Constitution. This Article
provides that the Supreme Court has the power to review its own judgments and orders. The review
jurisdiction is also envisaged under Part VIII Order XL of the Supreme Court Rules, 1966.
Subject to the provisions of any law made by Parliament or any rules made under article 145, the
Supreme Court shall have power to review any judgement pronounced or order made by it.
The Petitioner humbly submits that this court has the appropriate jurisdiction to hear
the matter and adjudicate accordingly.
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STATEMENT OF FACTS
For the sake of brevity and convenience of Hon’ble Court, the facts pertinent to the instant case
are summarized as follows:
Sowmithri filed the writ petition before the Supreme Court under Article 32 of the Constitution
Challenging the validity of Section 497 of Indian Penal code. The facts leading to the Petition
are as follows:
Yusuf Abdul, the husband of the Petitioner filed the petition before the Family Court for
Divorce against the Petitioner on the grounds of desertion and adultery. Pending the divorce
proceedings, the husband of the Petitioner filed a Complaint against the one- Joseph under
Section 497 IPC charging him of committing adultery with the Petitioner Sowmithri.
Sowmithri filed the Writ petition for quashing of the Complaint on the Ground that Section
497 IPC which created the offence of Adultery is unconstitutional.
The Petitioner pleaded that:
a) Section 497 of IPC is violative of Article 14 of the Constitution as it is made an irrational

classification between men and women perpetrating romantic paternalism and,
b) Right to life under Article 21 includes Right to reputation.
On 19th September, 2022 the Five Judge Constitution Bench of the Court in their
concurring Judgement, in view of the anomalies, has struck down Section 497 IPC as
unconstitutional being violate of Articles 14, 15 and 21 of the Constitution and section 198[2] of
the Code of Criminal Procedure [Cr.P.C] only to the extent that is applicable to the offence of
Adultery under Section 497 IPC, over ruling its earlier decisions.
Consortium of Religions, an Association registered by some heads of the three major

religions in the country has filed a Review Petition on 10th October, 2022 before the Supreme
Court praying for reconsideration of the hurried verdict on the grounds inter alia that:
1) Adultery is one of the most ancient sins which is every religion has condemned,
2) The decision violates the freedom of religion under the Constitution,
3) Creating right to consensual sexual activity within the marriage manifestly effects the
mutual exclusive rights of the martial parties
4) Right to personal choice is limited within the marriage and,
5) The decision effects public and private morals and effects the sanctity of matrimonial
home.
The Review Petitioner has prayed for a direction to the Union Government to recast Section
497 IPC removing the anomalies. The Review Petitioner further prayed for charging for any
two of the Judges from the Bench so that the Review becomes meaningful.
The Court admitted the Petition and allowed the oral hearing of the parties.
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ISSUES RAISED
ISSUE 1
WHETHER THE CONSORTIUM OF
RELIGIONS HAS LOCUS STANDI ?
ISSUE 2
WHETHER SEC.497, I.P.C READ WITH SEC.198 (2) Cr.P.C IS CONSTITUTIONAL?
ISSUE - 3
WHETHER CRIMINALISING SEC 497, I.P.C PROTECTS

THE SANCTITY OF THE MARRIAGE INSTITUTION?
ISSUE – 4
WHETER PRAYER BY THE PETITIONER FOR

CHANGE
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OF JUDGES IN THE REVIEW BENCH IS TENABLE?
SUMMARY OF ARGUMENTS
1. WHETHER THE CONSORTIUM OF RELIGIONS HAS LOCUS STANDI?
It is humbly submitted that the review petitioner filed by the review petition under Article 137 of Indian
Constitution in this Hon’ble court to cure gross miscarriage of justice has Locus Standi under Section
114 and Order XLVII of C.P.C, 1908. The review petition filed as the final order of the court has
overlooked the results of such order on the society and the institution of marriage. It fulfills all the
requirements for admission as a review petition on the ground that it has error apparent on face of
record as the decision clearly declines the express provision of law and the decision would affect
considerably to general public and is opposed to general public policy and specific legislation. Thus, for
the sake of Justice and public good, the review petition filed.
2. WHETER SEC.497, I.P.C READ WITH SEC.198 (2) Cr.P.C IS CONSTITUTIONAL?
3. It is humbly submitted that

section 497 of the Indian penal
code read with section 198(2) of
4. the code of criminal procedure
is constitutional as it does not
contravene Article 14, 15 and
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5. 21 of the Constitution the

exemption granted to married
women under section 497 of the
6. Indian penal code should be
construed as a beneficial
legislation which is protected by
Article
7. 15(3) of the constitution and
thus the said exemption is
constitutiona
It is humbly submitted before this Hon’ble court that sec 497, I.P.C long with sec 198(2) Cr.P.C is
constitutional in every aspect and not violate of Article 14, Article 15 and Article 21 of Indian
Constitution. It does not discriminate among equal people but creates different segregation for different
class of persons, which is constitutionally saved under Article 15(3) of Indian Constitution, which
allows making of special provisions for women. Not only did the constitution specifically allow making
of special provisions for women, but it on the same line also guides the states to do so. The provisions
under the both the sections are made keeping in a view the conditions prevalent in India itself which
can’t be compared with the contemporary socio-economic situation in any other country. By taking
both the sections together, it can be conclusively incurred that the sections do no inequity with both
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husband and wife as wife are exempted to be treated as an abettor similarly he right to prosecute has
been given to husband only and that to only against the third party and not is wife, in this way it accords
even handed justice to the parties. Further the Hon’ble court may consider amending the part of the
respective Section as far it deems them unconstitutional but, retaining the law itself as repealing of the
law would have probably far reaching negative effects on the society
1. WHETHER CRIMINALISING SEC 497, I.P.C PROTECTS THE

SANCTITY OF THE MARRIAGE INSTITUTION?
It is humbly submitted before this Hon’ble court that sec 497, I.P.C. is to protect the sanctity of
marriage. The aim of the Sec. is to deter crime which would led to lesser divorce rates and infidelity
cases ultimately laying the foundation of a happy marriage. It protects the marriage rom intrusion by an
outsider owing to the fact that the law penalizes the third party only keeping both the parties to
marriage in safe circuit. Also, the law can’t be evoked by the state itself but being a non-cognizable
offence, action would be taken to this effect only after taken complaint by the person so entitled under
Sec 198(2), Cr.P.C.is made. The intention behind criminalizing adultery is to punish the
Adulterer, to deter him from committing such a crime in future. Further the adverse fallout of
decriminalizing adultery on society cannot be ignore especially in a society like India where the
institution of marriage is regarded as sacramental union. The provisions of adultery law are to permit
husband and wife to make up their relation rather than to break it down.
2. WHETER PRAYER BY THE PETITIONER FOR CHANGE OF JUDGES IN THE

REVIEW BENCH IS VALID?
It is humbly submitted before the honorable Supreme court that the payer requested by the petitioner may be
permitted at the discretion of the court to protect the ends of Justice Further, as per the Supreme Court Rules,
2013 (XLVII. 2) a review Petition must be filed within 30 days from the judgment or order of which
review is sought and must be placed before the same Bench which had delivered the decision.
According to 3rd schedule of Constitution, Form of oath or affirmation to be made by the Judges of
the Supreme. Court and the Comptroller and Auditor-General of India. When there is a conflict of
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interest, a judge can withdraw from hearing a case to prevent creating a perception that she carried a
misapprehension of bias while deciding the case.
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ARGUMENTS ADVANCED (Issue-1)
1. WHETHER REVIEW PETITIONER, THE CONSORTIUM OF RELIGIONS HAS LOCUS

STANDI?
It is humbly submitted before the Hon’ble Supreme Court that the review petitioner, Consortium of
Religions filed review under Article137 of Indian Constitution has Locus Standi. Article 137 of the
Constitution of India empowers the Supreme Court to review any judgment pronounced or order made
by it subject to the provisions of any law made by the Parliament or any rule made under Art. 145.
Under Sec.114 and Order XLVII of C.P.C, 1908 to cure the gross negligence and protect the principles
of natural justice as it is a matter having far reaction impact upon the institution of family and society.
Any person can approach the court of law for justice. To knock the doors of the court they must have
Locus Standi. Locus Standi means the legal capacity to sue or approach courts. Under both the
inquisitorial and adversarial system, the parties approaching the courts must have been aggrieved or
deprived of their rights. Thus, in any legal process, the existence of locus standi is necessary.
Parties in the matter who are aggrieved by the decision of the court may file Review petition. In
exceptional cases, a review petition may be filed by third parties. In the present matter the consortium
of religions, filed a third party review petition under Sec 114 and Order XLVII of C.P.C, 1908.
Section 114 CPC – Review.

An aggrieved party can file an application for review in the same court where the decree has been
passed. This provision enables the court to review its own judgement in case of any error or mistake
made with regard to the decision rendered, to rectify the same.
ORDER XLVII – APPLICATION FOR REVIEW OF JUDGEMENT.
Any person considering himself aggrieved-

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been
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preferred, (b) by a decree or order from which no appeal is allowed
The court in Suthenthiraraja V. State, has observed: “….to maintain a review petition the final order
of the court has to be shown that there has been miscarriage of justice. Of course, the expression
‘miscarriage of justice’ is all embracing.”
It is humbly submitted that the final order of the Court has overlooked the results of such order on the
society and it is contended that abuse of court process has been rampantly used as a weapon by the bad
elements for their own vested interest in weakening of the institution of marriage and encouraging the
morale of those engaged in such offence.
The Parliament has so far not made any law in this respect but the rules framed by the Supreme Court
provide that in a criminal proceeding a review of a judgment or order is permissible only on account of
an error apparent on the face of the record. It must be under the rules that the Supreme Court has
decided to examine the review petitions filed by the State of Maharashtra and a number of women's
organisations in the Mathura rape case.
In Union of India vs Nareshkumar Badrikumar Jagad and Ors, 2011, The Supreme Court held that,
they have no objection to allow an aggrieved third party to take recourse to the remedy of review
petition. But the quintessence is that the person must be aggrieved by the judgment and order passed by
this Court in some respect. Under Section 114 of the Code of Civil Procedure which, inter alia,
postulates that “any person considering himself aggrieved” would have locus to file a review petition.
Order XLVII of CPC again restates the position that any person considering himself aggrieved can file
a review petition. So yes, any third party can also file a review petition.
IT IS THEREFORE HUMBLIY SUBMITTED THAT THE REVIEW PETITION FILED BY THE

CONSORTIUM OF RELIGIONS HAS LOCUS STANDI.
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2. WHETER SEC.497, I.P.C READ WITH SEC.198 (2) Cr.P.C IS CONSTITUTIONAL?
It is humbly submitted before the honorable Supreme court that this Sec. 497 I.P.C. along with Sec.
198 (2) Cr.P.C. is constitutional as the nature of Sec. 497 I.P.C. is under- inclusive, it selectively
incriminates one group of people, or one nature of acts, but not other. But that by itself will not
make them unconstitutional.
Adultery was considered as the criminal act in India before 2018. Sec. 497 defines and punishes the act
of adultery. Sec. 497 of IPC, 1860 indirectly protects the right of husband against another man who
cohabits with the former's wife. Earlier, adultery was considered as both immoral and illegal act. This
was the offence where a man files complaint against another man. Female have been exempted from
punishment under sec. 497. The Court unanimously struck down Section 497 IPC in Joseph shrine vs
U.O.I and declared adultery as a civil ground
2.1 Is Sec. 497, I.P.C violating Article 14 of Constitution?
It is submitted that Art. 14 prescribes equality before law, but the fact remains that all persons
are not equal by nature, attainment or circumstances, and, therefore, a mechanical equality
before the law may result in injustice. The underlying principle of Art. 14 of the Constitution of
India is that, “Like should be treated alike and not that unlike should be treated alike”,
among equals law should be equal and should be equally administered.
Thus, the guarantee against the denial of equal protection of law does not mean that
identically the same rules of law should be made applicable to all persons in spite of
difference in circumstances or conditions. Equality secured under Art. 14 is not absolute and
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unmitigated. It is a comparative concept, and not a human impossibility. It is not necessary as a

duty of legislature to make Art. 14 applicable to all person in rem. All person are not equal
by their nature, attainment or circumstances.
The varying needs of different classes of person often require separate treatment. Thus, application of
the same laws uniformly to all, under different state of affair, may result in violation of the
principle of equality. The legislature is requires to deal with diverse problem resulting from an
infinite variety of human relation. It must therefore have a power to make laws dealing with particular
problems. As a consequence, the legislature must have the power to make laws distinguishing and
classifying person and things upon which its laws are to operate. Accordingly, to apply the principle of
equality in a practical manner, the courts have evolved the principle that if the law in question is
based on rational classification, it is not regarded as discriminatory. Art. 14 forbids class
legislation, it does not forbid reasonable classification of persons, object and transactions by legislature
for the purpose of achieving specific ends. When a person seeks to impeach the validity of a law on the
ground that it offends Art. 14, the onus is on him to plead and prove the infirmity
In Yusuf Abdul Aziz V. State of Bombay (1954) SCR 930

In this case, the constitutionality of Section 497 was challenged on the grounds that it violates Article
14 and Article 15, by saying a wife cannot be a culprit even as an abettor. The 3 judge bench upheld the
validity of the said provision as it is a special provision created for women and is saved by Article
15(3). And Article 14 is a general provision and has to be read with other Articles and sex is just
classification, so by combining both it is valid.
In Sowmithri Vishnu V. U.OI, In this case, a petition was filed under Article 32 challenging the
validity of Section 497 of IPC. The challenge was based on the fact that the said provision does not
provide the right to a woman to prosecute the woman with whom her husband has committed adultery
and hence is discriminatory. The 3 judge bench in this case also upheld the validity by stating that
extending the ambit of offence should be done by the legislature and not by courts. The offence of
breaking a family is no smaller than breaking a house, so the punishment is justified. The court
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accepted that only men can commit such an offence. Observing that Sec. 497 and Sec. 198 (2)
constitute a “legislative packet”, the court observed that the provision does not allow either the
wife to prosecute an erring husband or a husband to prosecute the erring wife . Thus no
discrimination has been practised in circumscribing the scope of Sec. 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.”.
In E.V. Chinnaiah v. State of Andhra Pradesh, A legislation may not be amenable to challenge on
ground of violation of Art. 14, when it is intended to give effect to principles specified under Art. 15
and 16 or where the differentiation is not unreasonable or arbitrary, but when a classification is
made which is per se violate of constitutional provision, the same cannot be upheld. It must be kept
in mind that India is still a semi- feudal country, and not a modern country like USA and the European
countries etc.; we cannot go by mere abstract notion of women’s dignity, right to free sex, equality etc.
India is still a highly conservative country, and most people here regard having sex with another man’s
wife as horrifying, highly immoral and deeply offensive. So, to test the constitutionality of Sec. 497
and 198 (2), this social reality of India cannot be overlooked. Thus, for achieving the socio-
economic emancipation of women, the SC has said that the constitution laid down provisions
both for protective discrimination and as also affirmative action
Merely because Section 497 IPC doesn’t take in cases where the husband has sexual relation with a
unmarried woman or widow, it would not become unconstitutional
1. An under inclusive definition is not necessarily discriminatory.
2. The principle underlined in the offence of adultery is 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 relation between constituting the matrimonial unit
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.Also in Sowmithri v. Union of India it was stated that the law does not provide freedom to
husbands to be licentious by gallivanting with unmarried women. It only makes a specific kind of extra-
marital relationship an offence, the relationship between a man and a married woman.
The hon’ble court held in Chetan Dass v. Kamla Devi, The institution of marriage occupies an
important place and role to play in the society Similar view has been taken in Sarla Mudgal v. Union
of India- Marriage is the very foundation of civilized society. The relation once formed the law steps in
and binds the parties to various obligations and liabilities thereunder. Marriage is an institution
In the maintenance of which the public at large is deeply interested. It is the foundation of the family
and in turn of the society without which no civilization can exist.
The legislations relating to adultery make only man liable for the act of adultery
and not the woman. Also, Section 198(2) of Code of Criminal Procedure,
1973 has only given rights to the husband only in this matter that he is entitled
to file a complaint. No criminal remedy to the wife when her husband is involved in adultery, the law
gives monopoly to the husband over his wife's sexuality.The reason given for this
discrimination is that a wife can burden her husband with a child by a
illicit relationship, as stated in Section 112 of the Evidence Act, 1872.
2.2 IS SEC 497 I.P.C READ WITH SEC 198(2) Cr.P.C IS VIOLATIONG ARTICLE 15 OF THE
CONSTITUTION?
It is humbly submitted before the Hon’ble SC that the exemption granted to married women
from prosecution under Sec. 497 of the I.P.C. read with Sec 198(2) o Cr.P.C is not violative of
the fundamental rights guaranteed under constitution of India and is protected by Art. 15 (3) of the
constitution of India. It is humbly submitted that by virtue of Art. 15 (3) of the Indian constitution, the
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state is permitted, despite Art. 15 (1), to make any special provision for women, thus carving out
a permissible departure from the rigour of Art. 15 (1).
Under Sec. 497 of I.P.C. the offence of adultery can be committed only by a male and not by a female
who cannot be punished as an abettor. As it makes a special provision for women, it is saved by Art. 15
(3) which states: “Nothing in this Article shall prevent the State from making any special
provision for women and children.” The notion of protective discrimination aims at unequal
treatment of unequal, i.e. those who were the victim of the man-made asperities for centuries together
now need to be compensated. The meaning of Art. 15 (3) of the Constitution would be that a
special provision in favour of women would be valid even if it is an implied discrimination against
men.
In Government of A.P. V. P.B. Vijay Kumar, the court observed:
” The insertion of Clause (3) of Art 15 in relation to women is recognition of the fact that for centuries,
women o this country have been socially and economically handicapped. As a result, they are unable to
participate in the socio-economic activities of the nation on a footing of equality. It is in order to
eliminate this socio-economic backwardness of women and to empower them in a manner that would
bring about effective equality between men and women that Art 15(3) is placed in Art 15. Its object is
to strengthen and improve the status of women.
In Independent Thought v Union of India, Justice Madan B Lokur, speaking for a two judge Bench
of this Court, adverted to the drafting history of Art. 15 (3) and held thus: “The response given by Dr.
Ambedkar suggests that he certainly favored special provisions for women and children with a view
to integrate them into society and to take them out of patriarchal control…What clearly emerges from
this discussion is that Art. 9 (2) of the draft Constitution [now Art. 15 (3)] was intended to discriminate
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in favour of women and children – a form of affirmative action to their advantage. A law made to
secure maternity relief to women workers, would not be violative of Art. 15 (1), but would be within
the purview of Clause (3) of this Art. Sec. 125 of the Cr.P.C., 1974 (Sec. 488 of the Old Code), which
requires the husband to maintain his wife and not vice versa, has been held not discriminatory, for it
merely provides benefits and protection to women and children in certain circumstances.
Likewise, Order 5, Rule 15 of Civil Procedure Code, 1908, which makes service of summon on the
male members of the family, has been held not discriminatory and it is a special provision covered by
Art 15 (3). Likewise, Sec. 14 of the Hindu Succession Act, 1956, absolutely vesting the inherited
property in women, which was earlier held by them as limited estates, has been held to be protected
from attack under Art. 15 (3). On the same note, Sec. 497, Cr.P.C. 1898 prohibited release of a person
accused of a capital offence on bail except a woman or a child under 16 or a sick man. The provision
has been held valid as it metes out a special treatment to women which is consistent with Art. 15 (3).
In Hiral P Harsora v. Kusum Narottamdas Harsora, the SC has observed: “Sex is a sound
classification and although there can be no discrimination in general on that ground the constitution
itself provides for special provision in the case of women and children by clause 3 of Art. 15. Art.
14 and 15 thus read together validate the last sentence of Sec. 497 of I.P.C., which prohibits
the women from being punished as an abettor of the offence of adultery
Thus challenge was dealt with and repelled on the grounds that article 14 must be read with other
provisions in part III of the constitution which prescribe the ambit of fundamental rights. In Yusuf
Abdul Aziz V state of Bombay the court held that the prohibition on treating the wife as upheld as a
special provision which is saved by article 15(3) .
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2.3 IS SEC 497, I.P.C VIOLATES Art 21 OF THE CONSTITUTION?
Article 21 of the constitution contemplates that no person shall be deprived of his personal liberty
unless according to the procedure established by law. In Joseph shine vs U.O.I, court held that sec 497
I.PC read with sec 198(2) is violative to Art 21 as the dignity of a personal and sexual privacy is protected
by the constitution under Article 21. A girl has an equal right to privacy as a person. The autonomy of a
person is that the ability to form decisions on vital matters of life.
In KS puttaswami V union of India , even though the court held that the right to privacy is protected
as an intrinsic part of the freedom guaranteed by part III of the constitution, the court is yet to specify
what is privacy looks like. The right to privacy is also recognized as a basic human rights under Article
12 of the Universal Declaration of Human Rights Act, 1948, which state as follows: “No one shall be
subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attack upon
his honour and reputation.
In Joseph shrine case, court held that sec 497 is violation to right to privacy of women in fact it violates
husband’s right to marry and right of reputation which are guaranteed under Art 21.
A right is meaningless without a corresponding responsibility or duty on someone else's part.

Every
individual has a duty not to violate others personal dignity. The right to privacy and personal liberty
under Article
21 was not an absolute right and was subject to reasonable restrictions when legitimate public interest
was at stake. It was also argued that Section 497 was valid as being a form of affirmative action in
favor of women. It is further submitted that S.497, I.P.C. does not violate the right to privacy
guaranteed under the Indian Constitution. Any criminal offence is one against the society at large
casting an onerous responsibility on the state, as the guardian and purveyor of human rights and
protector of law to discharge its sacrosanct role responsibly and committedly, always accountable to the
law-abiding citizenry for any lapse .
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The Court, in R. Raja Gopal case, held that there would be no violation of the right to privacy if
the person concerned “voluntarily thrusts himself into controversy or voluntarily invites or raises
a controversy.” It is well settled that the right to privacy is not treated as absolute and is subject to
such action as may be lawfully taken for the prevention of crime or disorder or protection of health
or morals or protection of rights and freedom of others.
2.4 THE UNCONSTITUTIONAL PART OF THE PROVISION SHOULD BE READ DOWN

BUT THE PROVISION SHOULD BE RETAINED
It is humbly submitted that if this court finds any part of this section violative of the
constitutional provision, the court should read down that part, in so far as it is violative of the
constitution but retain the provision.
As per Art. 13, a law is void only, “to the extent of the inconsistency or contravention” with the
relevant fundamental rights. Therefore, there is no need to repeal the entire law as it would lead to
chaos and rampant misuse across Indian society
Art. 141 uses the expression “law declared by the Supreme Court”, which is wider than “law
found”. It means that the Supreme Court does not merely interpret the law, it may also make law or
create law. The role of Judiciary to merely interpret and declare the law has been said to be the concept
of by-gone age. It is now fairly settled that the courts can so mould and lay down the law, formulating
principles
and guidelines, as to adapt and adjust to the changing conditions of the society, the ultimate object
being to dispense justice.
Chief Justice Dipak Misra and Justice Khanwilkar said mere adultery cannot be a crime, but if any
aggrieved spouse commits suicide because of life partner's adulterous relation, then if evidence is
produced, it could be treated as an abetment to suicide. "Mere adultery can't be a crime, unless it
attracts the scope of Section 306 (abetment to suicide) of the IPC”.
P a g e | 19
Abetment to suicide pertains to Section 306 of the Indian Penal Code (IPC).If adultery causes
abetment to suicide then it's a crime: Supreme Court
According to Section 306 of the Indian Penal Code (IPC), abetment of suicide --if any person commits
suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine.
Prevention is better than cure. So adultery must be in criminal nature than to making it as civil
ground and treating it as abatement of committing suicide, attracts the scope of Section 306 (abetment
to suicide) of the IPC,"
IT IS HUMBLY SUBMITED THAT SEC.497, I.P.C READ WITH SEC.198 (2) Cr.P.C IS
CONSTITUTIONAL AND NOT VIOLAIVE TO RT 14, ART 15 AND ART 21.
3. WHETHER CRIMINALISING SEC 497, I.P.C PROTECTS THE

SANCTITY OF THE MARRIAGE INSTITUTION?
It is humbly submitted before this hon’ble court that the said provision protects the sanctity of marriage.
Decriminalizing adultery will pave way for rise in divorce rates and cases of marital infidelity, the
decriminalization of adultery will critically endanger the institution of marriage.
SECTION 497 I.P.C. ACTS AS AN EFFECTIVE DETERRENCE
It is submitted that laws are made to deter crime and not only to punish it. Criminal law
everywhere in the world serves as a guardian of the moral principles of society, protecting a
society’s historical roots while leading it towards a progressive social order. The Deterrence
Theory, posits that legal sanctions deter citizens from engaging in criminal activity. This theory,
grounded in the rational actor approach, is based on the notion that people choose whether or not to
P a g e | 20
commit a crime by weighing the potential benefits of getting away with it against the potential
consequences of getting caught.
Indian criminal law explicitly criminalizes acts that deceive a person. However, it is surprising that the
criminalization of an act that breaches the sanctity of a pure social institution such as marriage,
by way of deceit and lies, is facing challenges in the present case. Sec. 497 deals 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
The intention behind criminalizing adultery is to punish the adulterer; to deter him from
committing such a crime in future and to set an example that others also, who will commit the crime
will be punished likewise. If it is turned merely into a civil offence, adultery will only be a ground to
seek divorce and will provide a free license to prospective offenders to breach in the sanctity of
marriage
If we were to bring down a single brick, the whole house would collapse. A welfare-oriented and
inclusive country like India, while demanding that a marriage be registered in order to
acknowledge and protect the rights of the parties involved, cannot do away with a crime which
undermines the same legally recognized institution. The law of Adultery works as a shield to
deter crime and not as a sword to punish offenders, even in punishing offence the law clearly takes
cognizance to preserve marriage and parties to it and punishes the outsider.
P a g e | 21
3.2 DECRIMINALIZING ADULTERY WILL DESTROY THE SANCTITY OF MARRIAGE
INSTITUTION
It is further submitted that the judgment of the court in Joseph Shine v. Union of India
decriminalizing adultery is bound to have a far-reaching impact upon marriages in India, the
adverse fallout cannot be ignored.
In India, the Institution of marriage is regarded as a sacramental union. It is the basis of society. It is a
contract but it is also a sacred covenant. The main aim of the institution of marriage is to protect the
society from foulness and un-chastity. Marriage and the family are social institutions of vital
importance. Entering into and sustaining a marriage is a matter of intense private significance to
the parties to that marriage for they make a promise to one another to establish and maintain an
intimate relationship for the rest of their lives which they acknowledge obliges them to support one
another, to live together and to be faithful to one another. Entering into marriage therefore is to enter
into a relationship that has public significance as well. In the light of such importance being attributed
to marriage, decriminalizing adultery will pave way for rise in divorce rates and cases of marital
infidelity, the decriminalization of adultery will critically endanger the institution of marriage.
The Indian society and ethos give paramount importance to family. The hon’ble court held in Chetan
Dass v. Kamla Devi, The institution of marriage occupies an important place and role to play in the
society Similar view has been taken in Sarla Mudgal v. Union of India- Marriage is the very
foundation of civilized society. The relation once formed the law steps in and binds the parties to
various obligations and liabilities thereunder. Marriage is an institution in the maintenance of
which the public at large is deeply interested. It is the foundation of the family and in turn of the
society without which no civilization can exist.
Individuals to have sexual relations outside marriage would inevitably destroy the institution of
marriage and thus, the provision criminalizing adultery was essential for maintaining the sanctity of
marriage. It was submitted that an act which outraged the morality of society, and harmed its members,
ought to be punished as a crime.
P a g e | 22
Before marriage a women’s legal guardian is her father but after her marriage, according to Hindu
minority and guardianship act (1956) her husband is the legal guardian. Therefore the legal guardian
that is her husband has the right to take of her and also to prosecute others on her behalf if any crime is
committed against her.
A study which reviewed over 130 studies measuring how marital status affects personal well-
being, it shows that married men and women are generally happier and less stressed than the
unmarried. Moreover, a 2015 study, updated and confirmed the findings in a 2002 study in
Clinical Child and Family Psychology Review, discuss a variety of health consequences for children of
divorced parents. Studies have claimed that people who have been in divorced families have higher
rates of alcoholism and other substance abuse compared to those who have never been divorced.
Researchers have also shown that children of divorced or separated parents: Have higher rates of
clinical depression: Family disruption and low socioeconomic status in early childhood increase
the long-term risk for major depression,
Seek formal psychiatric care at higher rates, In the case of men, are more likely to commit
suicide and have lower life expectancies. It is thus clear adultery not only run the risk of fostering
extra-marital affairs, the emergence of divorce as the way out will catalyse the break-up of marriages,
leaving little children in the lurch.
Consequences of decriminalising sec 497 I.P.C
 Increase in divorce rate
 Increases suicide tendency
 Increases crime rate( Murders)
 May arise a question of biological father of innocent children.
P a g e | 23
SEXUALLY TRANSMITTED DISEASE
By extra marital affairs, the parties may be effected by Sexually Transmitted Deceases (STD’s).STDs
can complicate your pregnancy and may have serious effects on both you and your developing baby.
Some of these problems may be seen at birth; others may not be discovered until months or years later.
In addition, it is well known that infection with an STD can make it easier for a person to get infected
with HIV. When the adulterous wife had sexual intercourse with her husband, husband may also be
affected by HIV. This clearly says that by the act of adultery husband and children health get affected
(Violation of Art 21).
Article 21 of the Constitution of India provides that 'Right to health forms an indispensable part
of Right to life. “Pt. Parmanand Katara vs. UOI” is a landmark judgment that upholds the
preservation of life and considers the right to life to be of utmost significance.
Adultery according to religion
India is a country known for its unity in diversity. Our country is a secular country where sentiments of
all the religions are equally respected. Every religion follows its own views and objectives. However, in
the matter of adultery more or less every religion is highly critical. Different religions have different
views on adultery but the core view remains the same. In every religion, adultery is treated as a crime.
However, the forms of punishment may vary among religions. It is treated as a delinquent act as it
violates the religious sentiment of every religion.
Aristotle, the Greek philosopher, had strongly stated about the social nature of the man: Man is by
nature a social animal; an individual who is unsocial naturally and not accidentally is either
beneath our notice or more than human. Society is something that precedes the individual. An
individual must live with the society .So individual’s interest can be curtailed for the welfare of the
society.
P a g e | 24
According to the Satpatha Brahman, “the wife is verily the half of the husband” Man is only half, not
complete until he marries. The Taittiriya Samhita is to the same effect, “half is she of the husband that
is wife”. Manu further said, “Once a man and a woman are united in marriage, they must see that
there are no differences between them, and that they remain faithful to each other.” From the notion of
unity of personality of husband and the wife, mutual fidelity between husband and wife is the highest
dharma. The importance of marriage is evident from the pronouncement of the High Court of
madras which states that marriage is the last of the ten sacraments enjoyed by the Hindu religion
purifying the body from inherited taints.
The same philosophy has been incorporated under Sec. 9 of the Hindu Marriage Act, 1955
which provide for the restitution of conjugal rights.
In Smt. Hinder Kaur v. Harmande Singh, the court did not accept the earlier view and rightly
observed that: “The object of restitution decree was to bring about cohabitation between the
estranged parties so that they could live together in the matrimonial home in amity. The remedy
of restitution aimed at cohabitation and consortium, the restitution decree does not enforce
sexual intercourse. It was a fallacy to hold that the hold that the restitution of conjugal rights
constituted the starkest form of governmental invasion of mutual privacy.”
In V. Revathi v. Union of India & Ors, The court has rightly observed: “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.”
P a g e | 25
3.4 IS WIFE THE PROPERTY OF HUSBAND?
Marriage, a legally and socially sanctioned union, usually between a man and a woman, that is
regulated by laws, rules, customs, beliefs, and attitudes that prescribe the rights and duties of the
partners. Husband and wife are obliged to be faithful to each other, to love, take care of and assist each
other. Bride and Groom are made to take seven rounds around Holy Fire, for each round, they take one
vow/Promise to their spouse. ”Dharmecha, Arthecha, Kamecha, Mokshecha, Naati
Charaami ("Righteously, financially, by desire, or spiritually, I will not walk away from her!!").
Husband is the property of wife and wife is the property of husband as one can take care of their own
property. In family spouses cares about each other. In Joseph Shine v. U.O.I Court held that the sec
497 of I.P.C allows adultery on the husband’s consent or connivance, which gives a man control over
her sexual autonomy. This makes her a puppet of the husband and takes away all her individuality and
also held that wife is not the property of husband. On that ground court decriminalised sec 497 and
made adultery as a civil ground.
Wife's Right To Maintenance Forfeited U/S 125(4) Cr.P.C Only When Acts Of Adultery are
Committed Repeatedly: Delhi High Court
The Delhi High Court has reiterated that only continuous and repeated acts of adultery or cohabitation
in adultery would attract the rigours of the provision under Section 125 (4) of the Code of Criminal
Procedure. Sec. 125(4) of the Cr.P.C states that no Wife shall be entitled to receive an allowance from
her husband if she is living in adultery
Section 125(4) in the Code of Criminal Procedure, 1973

(4) No Wife shall be entitled to receive an allowance from her husband under this section if she is
living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they
are living separately by mutual consent.
P a g e | 26
The offence of adultery, as defined in S. 497 is considered by the Legislature as an offence against the
sanctity of the matrimonial home. Therefore, those men who defile that sanctity are brought within the
net of the law.
THEREFORE IT IS MOST RESPECTFYLLY SUBMITTED THAT CRIMINALISING SEC 497,

I.P.C PROTECTS THE SANCTITY OF THE MARRIAGE INSTITUTION
4. WHETER PRAYER BY THE PETITIONER FOR CHANGE OFJUDGES IN THE

REVIEW BENCH IS VALID?
It is humbly submitted before the honorable Supreme Court that the prayer requested by the petitioner
may be permitted at the discretion of the court to protect the ends of Justice.
Further, as per the Supreme Court Rules, 2013 (XLVII. 2) a review Petition must be filed within 30
days from the judgment or order of which review is sought and must be placed before the same Bench
which had delivered the decision. According to 3rd schedule of Constitution, Form of oath or
affirmation to be made by the Judges of the Supreme. Court and the Comptroller and Auditor-General
of India. Judges personality reflects in their judgment. Judge will “perform the duties without fear or
favor”.
“JUDICIAL IMPARTIALITY IS THE CARDINAL PRINCIPLE”
About Judges Recusal
 When there is a conflict of interest, a judge can withdraw from hearing a case to prevent
creating a perception that she carried a bias while deciding the case..
P a g e | 27
 Similarly, if the judge has, in the past, appeared for one of the parties involved in a case, the call
for recusal may seem right.
Another instance for recusal is when an appeal is filed in the Supreme Court against a judgement of a
High Court that may have been delivered by the Supreme Court judge when she was in the High
Courts.This practice stems from the cardinal principle of due process of law that nobody can be a
judge in her case.
Process for Recusal
Once a request is made for recusal, the decision to recuse or not rests with the judge.While there are some
instances where judges have recused even if they do not see a conflict but only because such apprehension was
cast.
Legal Provisions for Recusal
There are no formal rules governing recusals, although several Supreme Court judgments have dealt
with the issue .Ranjit Thakur v Union of India (1987), the Supreme Court held that the tests of the
likelihood of bias are the reasonableness of the apprehension in the mind of the party.
The doctrine of recusal

The trend of recusal of judges started from a case in 1852 where Lord Cottenham recused himself from the case
of Dimes V Grand Junction Canal, because he possessed some of the shares in the company involved in the
case. Since then recusal became a part of custom in common law jurisdictions.
Justice Dal veer Bhandari’s recusal from a bench in Novartis case was in response to a letter from the
activists regarding his participation in at least two international conferences for judges organized by the
US-based Intellectual Property Owners Association (IPOA), whose members include Novartis, among a
host of pharmaceutical and IT giants. In their letter to the government, the activists alleged that “several
statements in the paper could be held to conflict with the intent and letter of the Indian Patent Act”.
P a g e | 28
RECOMMENDATIONS
 In the 42nd Law Commission report, it was recommended to include adulterous women
liable for prosecution and reduce punishment from 5 years to 2 years. It was not given effect.
 In the 152nd Law Commission report, it was recommended introducing equality between
sexes in the provision for adultery and reflecting the societal change with regards to the
status of a woman. But it was not accepted.
 In 2003, the Mali math Committee on Reforms of Criminal Justice System was formed
which recommended amending the provision as ‘whosoever has sexual intercourse with a
spouse of any other is guilty of adultery’. The same is pending for consideration.
It is most humbly submitted before the hon’ble Supreme Court that by considering the reports of
the above said commission reports, adultery must be in criminal nature to protect the sanctity of
the marriage institution.
P a g e | 29
PRAYER
Therefore, in the light of the facts stated, issues raised, arguments advanced and authorities
cited, it is humbly prayed before this Hon’ble Court that it may be pleased to hold, adjudge and
declare that:
 To allow the above review petition filed by the petitioner.
 Direct the Union Government to recast sec 497 I.P.C read with Section 198 (2) Cr.P.C
by removing the anomalies to uphold the constitutional validity.
 To set aside the decree of the Hon’ble court in Sowmitri v. UOI.
AND/OR
Pass any other Order, Direction or Relief that it may deem fit in the best interests of Justice,
Fairness, Equity, and Good Conscience.
For this Act of Kindness, the Respondent as in Duty Bound, shall forever Pray.
DATE: Third Day of January 2023 Sd/-

PLACE: Vijayawada, AP, India ( COUNSEL FOR THE PETITIONER)
P a g e | 29

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CODE:

JAGARLAMUDI CHANDRAMOULI 2ndNATIONAL MOOT COURT COMPETITION, 2023

IN THE HON’BLE SUPREME COURT OF INDIA

Review PETITION NO. ----OF 2023

IN THE MATTER OF–

CONSORTIUM OF RELIGIONS …PETITIONER

(UNDER ARTICLE 137 OF THE

UPON SUBMISSION TO THE HON’BLE JUDGES OF JC COLLEGE MOOT COURT

I. BOOKS AND COMMENTARIES REFERRED

II. STATUITES REFERRED

III. LEGAL DATABASE

4. STATEMENT OF FACTS .............................................................................5 - 6

7. ARGUMENTS ADVANCED .........................................................................10 - 27

I.INDEX OF AUTHORITIESI. BOOKS AND COMMENTARIES REFERRED

II. STATUTES REFERRED

:i. The Code of Criminal Procedure, 1973.

ii. The Constitution of India, 1950.

iii. The Indian Evidence Act, 1872.

iv The Indian Penal Code, 1860.

III. LEGAL DATABASE

 The 42nd Law Commission report.

ARTICLE 137 REVIEW OF JUDGMENTS OR ORDERS PASSED BY THE SUPREME

The Petitioner pleaded that:

a) Section 497 of IPC is violative of Article 14 of the Constitution as it is made an irrational

b) Right to life under Article 21 includes Right to reputation.

Consortium of Religions, an Association registered by some heads of the three major

2) The decision violates the freedom of religion under the Constitution,

4) Right to personal choice is limited within the marriage and,

WHETHER THE CONSORTIUM OF

RELIGIONS HAS LOCUS STANDI ?

WHETHER SEC.497, I.P.C READ WITH SEC.198 (2) Cr.P.C IS CONSTITUTIONAL?

WHETHER CRIMINALISING SEC 497, I.P.C PROTECTS

WHETER PRAYER BY THE PETITIONER FOR

OF JUDGES IN THE REVIEW BENCH IS TENABLE?

1. WHETHER THE CONSORTIUM OF RELIGIONS HAS LOCUS STANDI?

2. WHETER SEC.497, I.P.C READ WITH SEC.198 (2) Cr.P.C IS CONSTITUTIONAL?

3. It is humbly submitted that

5. 21 of the Constitution the

1. WHETHER CRIMINALISING SEC 497, I.P.C PROTECTS THE

2. WHETER PRAYER BY THE PETITIONER FOR CHANGE OF JUDGES IN THE

ARGUMENTS ADVANCED (Issue-1)

1. WHETHER REVIEW PETITIONER, THE CONSORTIUM OF RELIGIONS HAS LOCUS

Section 114 CPC – Review.

ORDER XLVII – APPLICATION FOR REVIEW OF JUDGEMENT.

Any person considering himself aggrieved-

preferred, (b) by a decree or order from which no appeal is allowed

IT IS THEREFORE HUMBLIY SUBMITTED THAT THE REVIEW PETITION FILED BY THE

ARGUMENTS ADVANCED (Issue-2)

2. WHETER SEC.497, I.P.C READ WITH SEC.198 (2) Cr.P.C IS CONSTITUTIONAL?

2.1 Is Sec. 497, I.P.C violating Article 14 of Constitution?

unmitigated. It is a comparative concept, and not a human impossibility. It is not necessary as a

In Yusuf Abdul Aziz V. State of Bombay (1954) SCR 930

1. An under inclusive definition is not necessarily discriminatory.

In Government of A.P. V. P.B. Vijay Kumar, the court observed:

2.3 IS SEC 497, I.P.C VIOLATES Art 21 OF THE CONSTITUTION?

A right is meaningless without a corresponding responsibility or duty on someone else's part.

2.4 THE UNCONSTITUTIONAL PART OF THE PROVISION SHOULD BE READ DOWN

ARGUMENTS ADVANCED (Issue-3)