Download Section 497 & Gender Equality: A Constitutional Analysis and more Papers Law in PDF only on Docsity!
TEAM CODE: MUKHTAR
JAGARLAMUDI CHANDRAMOULI COLLEGE OF LAW
2 ND^ NATIONAL MOOT COURT COMPETITION 2023
BEFORE THE HON’BLE SUPREME COURT OF INDIA
(UNDER ARTICLE 137 OF THE CONSTITUTION OF INDIA, 1950 READ WITH
ORDER XLVII, RULE 1 OF THE SUPREME COURT RULES, 2013)
IN THE MATTER OF:
REVIEW PETITION (Crl.) No. ___ / 2023
CONSORTIUM OF RELIGIONS AND ANR. ……………………….........PETITIONERS
VERSUS
SOWMITHRI ……………………………………………………...…….......RESPONDENT
MEMORIAL ON BEHALF OF RESPONDENT
MOST RESPECTFYLLY SUBMITTED BEFORE THE BENCH OF THIS HON’BLE COURT
TEAM CODE: MUKHTAR
MEMORIAL ON BEHALF OF RESPONDENT TABLE OF CONTENTS
LIST OF ABBREVATIONS …………….……………….…….……….………………… INDEX OF AUTHORITIES ……………………...…….…………….…………...…….... STATEMENT OF JURISDICTION …………………………….….…………………..... STATEMENT OF FACTS ………………………………………………...……............... ISSUES RAISED ………………………………………………………..…………….…...1 0 SUMMARY OF ARGUMENTS ………………………………………..………………..1 1 ARGUMENTS ADVANCED …………………………….……...……..…………….…..
ISSUE 1: WHETHER THE REVIEW PETITION FILED BY ‘CONSORTIUM OF RELIGIONS’ ASSOCIATION IS MAINTAINABLE OR NOT? ............................
1.1. THE PETITIONER LACKS REQUISITE LOCUS STANDI
1.2. THERE IS NO ERROR APPARENT ON THE FACE OF RECORD IN JUDGMENT
1.3. FINALITY OF JUDGEMENT MUST BE RESPECTED
1.4. VIOLATION OF FUNDAMENTAL RIGHTS CANNOT BE ALLEGED UNDER REVIEW JURISDICTION
ISSUE 2: WHETHER DECRIMINALIZING ADULTERY DESTROYS THE SANCTITY OF MARRIAGE THEREBY VIOLATING THE FREEDOM OF RELIGION OR NOT? ...................................................................................
2.1. PRESERVING THE SANCTITY OF MARRIAGE IS A COLLECTIVE DUTY OF BOTH THE PARTNERS
2.2. CRIMINALIZING ADULTERY IS NOT A DETERRENT
2.3. NOTION OF MARITAL SERVITUDE
ISSUE 3: WHETHER SECTION 497 OF IPC CLASSIFYING MEN AND WOMEN IN DIFFERENT PEDESTALS IS VIOLATIVE OF ARTICLE 14 AND 15 OF THE INDIAN CONSTITUTION OR NOT? ................................................................................
3.1. THE SECTION 497 OF IPC FAILS THE TEST OF REASONABLE CLASSIFICATION
3.2. SECTION 497 OF IPC IS VIOLATIVE OF ARTICLE 15 OF THE CONSTITUTION
ISSUE 4: WHETHER SECTION 497 OF IPC IS VIOLATIVE OF ARTICLE 21 OF THE INDIAN CONSTITUTION OR NOT?. ...................................................................... 24
MEMORIAL ON BEHALF OF RESPONDENT LIST OF ABBREVATIONS
S.No. ABBREVIATIONS EXPANSION
1 & And
2 ¶ Paragraph
3 AIR All India Reporter
4 Anr Another
5 Art Article
6 CrPC Code of Criminal Procedure
7 Crl Criminal
8 et. Al And others
9 Ibid. Ibidem- In the same place
10 i.e., That is
11 IPC Indian Penal Code
12 HC High Court
13 Hon’ble Honourable
14 No. Number
15 Ors. Others
16 Pg. Page
MEMORIAL ON BEHALF OF RESPONDENT
17 SC Supreme Court
18 SCC Supreme Court Cases
19 SCR Supreme Court Reporter
20 Sec Section
21 UOI Union of India
22 u/s Under section
23 Vol Volume
24 Vs. Versus
MEMORIAL ON BEHALF OF RESPONDENT
STATUTES, ACTS AND RULES
- The Constitution of India, 1950
- The Indian Penal Code , 1860
- The Code of Criminal Procedure, 1973
- The Supreme court rules, 2013
BOOKS AND COMMENTARIES
- M.P. Jain, Indian Constitutional Law , (6th Ed, 2010)
- Durga Das Basu, Shorter Constitution Of India , (14th Ed, 2009)
- V.N. Shukla, Constitution of India , (12th Ed, 2016)
- B.M. Gandhi, Indian Penal Code , (4th Ed, 2017)
- S.N. Misra, The Code Of Criminal Procedure Code , (23rd Ed, 2020)
- R.P.Kataria and Salah Uddin, Commentary on Human Rights( 1st^ Ed,2011)
LEGAL DATABASE
- http://www.indiakanoon.com
- http://www.scconline.com
- http://www.casemine.com
- https://www.scconline.com/
MEMORIAL ON BEHALF OF RESPONDENT
STATEMENT OF JURISDICTION
The Respondent humbly submits this memorandum before the Hon’ble Supreme Court of India in lieu of Petitioners invoking the jurisdiction under Article 137 of the Constitution of India read with Order XLVII, Rule 1 of the Supreme Court Rules, 2013 made under Article 145 of the Constitution of India.
Article 137 in the Constitution Of India 1950
- Review of judgments or orders by the Supreme Court 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 judgment pronounced or order made by it.
Article 145 in The Constitution Of India 1950
- Rules of Court, etc
(1) Subject to the provisions of any law made by Parliament the Supreme Court may from time to time, with the approval of the President, make rules for regulating generally the practice and procedure of the Court
Order XLVII of Supreme Court Rules 2013 : "Review"
- The Court may review its judgment or order, but no application for review will be entertained in a civil proceeding except on the ground mentioned in Order XLVII, rule 1 of the Code, and in a criminal proceeding except on the ground of an error apparent on the face of the record.
The application for review shall be accompanied by a certificate of the Advocate on Record certifying that it is the first application for review and is based on the grounds admissible under the Rules.
The present memorandum sets forth the Facts, Contentions and Arguments.
MEMORIAL ON BEHALF OF RESPONDENT
ISSUES RAISED
ISSUE 1
WHETHER THE REVIEW PETITION FILED BY ‘CONSORTIUM OF RELIGIONS’
ASSOCIATION IS MAINTAINABLE OR NOT?
ISSUE 2
WHETHER DECRIMINALIZING ADULTERY DESTROYS THE SANCTITY OF
MARRIAGE THEREBY VIOLATING THE FREEDOM OF RELIGION OR NOT?
ISSUE 3
WHETHER SECTION 497 OF IPC CLASSIFYING MEN AND WOMEN IN DIFFERENT
PEDESTALS IS VIOLATIVE OF ARTICLE 14 AND 15 OF THE INDIAN
CONSTITUTION OR NOT?
ISSUE 4
WHETHER SECTION 497 OF IPC IS VIOLATIVE OF ARTICLE 21 OF THE INDIAN
CONSTITUTION OR NOT?
ISSUE 5
WHETHER SECTION 497 OF IPC SHOULD BE RECASTED REMOVING ANOMALIES
OR NOT?
MEMORIAL ON BEHALF OF RESPONDENT
SUMMARY OF ARGUEMENTS
1. WHETHER THE REVIEW PETITION FILED BY ‘CONSORTIUM OF
RELIGIONS’ ASSOCIATION IS MAINTAINABLE OR NOT?
It is humbly submitted before this Hon’ble Supreme Court that the Review Petition filed by Consortium of Religions is not maintainable under Art. 137 of the Constitution of India since the petitioner lacks requisite locus standi.
2. WHETHER DECRIMINALIZING ADULTERY DESTROYS THE SANCTITY OF
MARRIAGE THEREBY VIOLATING THE FREEDOM OF RELIGION OR NOT?
It is humbly submitted that decriminalizing adultery does neither destroy the sanctity of marriage nor violates the freedom of religion. Preserving the sanctity of marriage is a collective duty of both the partners and the woman should not hold sole liability.
3. WHETHER SECTION 497 OF IPC CLASSIFYING MEN AND WOMEN IN
DIFFERENT PEDESTALS IS VIOLATIVE OF ARTICLE 14 AND 15 OF THE
INDIAN CONSTITUTION OR NOT?
It is humbly submitted that the section 497 of IPC classifying men and women in different pedestals is violative of article 14 and 15 of the Indian constitution. All persons in similar circumstances shall be treated alike both in privileges and liabilities imposed.
4. WHETHER SECTION 497 OF IPC IS VIOLATIVE OF ARTICLE 21 OF THE
INDIAN CONSTITUTION OR NOT?
It is humbly submitted that section 497 of IPC violates the implicit rights to live with dignity, reputation and privacy as guaranteed under Article 21 of the Indian constitution.
MEMORIAL ON BEHALF OF RESPONDENT
ARGUMENTS ADVANCED
1. WHETHER THE REVIEW PETITION FILED BY ‘CONSORTIUM OF
RELIGIONS’ ASSOCIATION IS MAINTAINABLE OR NOT?
[¶1.] It is humbly submitted before this Hon’ble Supreme Court that the Review Petition filed by Consortium of Religions is not maintainable under Art. 137 of the Constitution of India. 1.1. THE PETITIONER LACKS REQUISITE LOCUS STANDI [¶2.] It is humbly submitted that the Consortium of Religions association does not have any relation to the Writ petition filed by Sowmithri. This implies that it is considered to be a non- aggrieved third party to the present case and falls short of requisite locus standi to file a review on the judgment given in the previous case of Sowmithri vs. Union of India.
[¶3.] Locus standi is a Latin maxim which refers to the right or capacity to appear and address the court on a matter. To gain such a right, the litigants must show that they are adversely affected by the impugned action or that their rights have been violated.^1 However, if they do not possess such right, then constructively, the person shall not be allowed to intervene in or initiate legal proceedings and can be considered as third party.
[¶4.] Now, the question as to whether a third party has locus standi in criminal proceedings has been answered by the apex court in the case of State of Kerala vs. R. Balakrishna Pillai.^2 In this case the Hon'ble court observed that "Supreme Court has never recognized locus standi in third parties in criminal law. Allowing third parties to enter the arena of criminal justice would be to destroy institutional perspectives that have been built over the years."^3
[¶5.] Moreover, with respect to a third party’s locus standi in matters of a review petition, the Hon'ble Court has time to time reiterated through several case laws that a third party cannot
(^1) S.P. Sathe, Judicial Activism: The Indian Experience, 6 WASH. U. J. L. & POL’Y 29, 70 (2001) (^2) State of Kerala vs. R. Balakrishna Pillai, [1993] 2 Kerala Series 752 (^3) Rajubhai Dhamirbhai Baria vs. State of Gujarat, 2012 (114) Bom LR 3549
MEMORIAL ON BEHALF OF RESPONDENT
file a review petition.^4 Hence, it is humbly submitted that the Petitioner lacks requisite locus standi to approach this Hon'ble SC through such a review petition.
1.2. THERE IS NO ERROR APPARENT ON THE FACE OF RECORD IN
JUDGMENT
[¶6.] It is humbly submitted that the review petition filed by Consortium of Religions association is not maintainable since the Supreme Court’s judgment was given on merits without any error apparent on the face of record.
[¶7.] A review in criminal proceedings can be sought on the limited ground of error apparent on the face of record. Further, the Order XLVII, Rule 1 of the Supreme Court Rules, 2013 reads as follows: (1) The Court may review its judgment or order, but no application for review will be entertained in a civil proceeding except on the ground mentioned in Order XLVII, rule I of the Code, and in a criminal proceeding except on the ground of an error apparent on the face of the record.
However, it is humbly submitted before this Hon'ble court that no such error has been emphasized or agitated by the Petitioner in the present case.
[¶8.] Further, in the case of Assistant Commissioner of Income Tax, vs. Saurashtra Kutch Stock Exchange Ltd^5 , it was held that "An error apparent on the face of the record means an error which strikes on mere looking and does not need long- drawn-out process of reasoning on points where there may conceivably be two opinions. Moreover, if the view accepted by the Court in the original judgment is one of the possible views, the case cannot be said to be covered by an error apparent on the face of the record.^6
(^4) Satvir Singh vs. Baldeva (1996) 8 SCC 593; Simranjit Singh Mann vs. Union of India (1992) 4 SCC 653; State
of Karnataka vs. T. R. Dhannanjaya (1995) 6 SCC 254 (^5) Assistant Commissioner of Income Tax, vs. Saurashtra Kutch Stock Exchange Ltd, Special civil Application No. 1247 of 2002 (^6) Income Tax officer Ward-5(3)(2), Bangalore vs. Sri Mahesh Suryanarayanan Lingam , Bangalore, MA 172/ BANG/ 2018
MEMORIAL ON BEHALF OF RESPONDENT
[¶13.] Thus, permitting the parties to review the concluded judgments of this court by filing repeated interlocutory applications without any error apparent is clearly an abuse of the process of law and would have far reaching adverse impact on the administration of justice.
1.4. VIOLATION OF FUNDAMENTAL RIGHTS CANNOT BE ALLEGED UNDER REVIEW JURISDICTION
[¶14.] The review petitioner has alleged that decriminalizing adultery and striking out section 497 IPC results in violating the freedom of religion. But this is not a proper ground for initiating a review petition since they are considered to be a third party. Even if the Petitioner feels aggrieved they should have a Public Interest Litigation or any other petition for challenging the Constitutionality of Section 497 of IPC for arguing to greater public interest. But they cannot interfere with the judgment given in the case of Sowmithri vs Union of lndia by a Review petition.
[¶15.] Hence, it is humbly submitted that the review petition filed by Consortium of Religions association is not maintainable since the petitioner lacks requisite locus standi and also the judgment was given on merits without any error apparent on the face of record.
MEMORIAL ON BEHALF OF RESPONDENT
2. WHETHER DECRIMINALIZING ADULTERY DESTROYS THE SANCTITY OF
MARRIAGE THEREBY VIOLATING THE FREEDOM OF RELIGION OR NOT?
[¶16.] It is humbly submitted that decriminalizing adultery does neither destroy the sanctity of marriage nor violates the freedom of religion.
2.1. PRESERVING THE SANCTITY OF MARRIAGE IS A COLLECTIVE DUTY OF BOTH THE PARTNERS
[¶17.] By inclusion of the offense of adultery under the chapter titled ‘offenses related to marriage’, it hints at the aspect that the sanctity of marriage is not the one to be preserved by one spouse but it is a collective duty of both of them. But the language of the section discriminates between husband and wife as partners to marriage as ‘husband of another woman’ that is a female partner in adultery is not liable for committing the wrong.
[¶18.] Section 497 seeks to control a woman and her sexuality, making her solely liable for preserving “sanctity of marriage”, while making husband immune from it. Section 497 propagates sex stereotyping based on male and female sex and behavior. The main partner of an “adulterous woman” is liable for prosecution because he has “seduced” the wife of another man. This perpetuates gender disparities and propagates stereotypes that a woman’s virtue is determined by her sexual conduct.
[¶19.] It is acknowledged that adultery is treated as a delinquent act according to many religions. That is the reason why ‘adultery’ still exists to be a ground for divorce in India. However, the same cannot be brought into a criminal perspect because; the section 497 itself has loopholes that affect religious beliefs. The reasons are as follows.
[¶20.] Firstly, while it has been said that the ostensible object of Section 497 is to protect and preserve the sanctity of marriage, however, the Section 497 does not penalize a husband if he has sexual intercourse with an unmarried woman, or a widow or even a Transgender. Though the sanctity of marriage is broken in such a situation, the law (Section 497) does not recognize it. Secondly, if the husband “consents”, then intercourse of a man with that husband’s wife is not Adultery. This too is inimical to the sanctity of marriage. In the case of Joseph Shine vs.
MEMORIAL ON BEHALF OF RESPONDENT
claimant's spouse, who is and cannot be a party to the interdict, and therefore indirectly interferes with, and restricts her rights and freedom of, using and disposing of her body as she chooses‘ In addition the deterrence argument seems to depart from the assumption that adultery is the cause of the breakdown of a marriage, while it is now widely recognised that causes for the breakdown in marriages are far more complex. Quite frequently adultery is found to be the result and not the cause of an unhappy marital relationship. Conversely stated, a marriage in which the spouses are living in harmony is hardly likely to be broken up by a third party.”
[¶23.] Adultery is more of a social and civil offense and depicts a more arbitrary and infidelity of trust not only the spouse but the whole family. Adultery is a consequence of the collapse of faith and conscience in a relationship and requires corrective action rather than penalization. The sanctions imposed by the laws can bring relief to the injured party for a short time, but destroys the sanctity of marriage and ruins family life in the long term.
2.3. NOTION OF MARITAL SERVITUDE
[¶24.] The sexuality of a woman is part of her inviolable core; neither the state nor the institution of marriage can disparage it. But the section 497 of IPC is destructive and deprives a woman of her agency, autonomy and dignity as it chains the woman to antediluvian notions of sexuality.
[¶25.] Moreover, the effect of Sec. 497 is to allow the sexual agency of a married woman to be wholly dependent on the consent or connivance of her husband. Far from being an equal partner in an equal relationship, she is subjugated entirely to the will of her spouse. Sec. 497 is based on the understanding that marriage submerges the identity of the woman, based on a notion of marital subordination. Thus, a woman's 'purity' and a man's marital 'entitlement' to her exclusive sexual possession may be reflective of the antiquated social and sexual mores of the nineteenth century, but is not relevant to the contemporary perspective where men and women in marriage are conferred equal rights and liabilities.
MEMORIAL ON BEHALF OF RESPONDENT
[¶26.] In the case of Payal Sharma vs. Superintendent, Nari Niketan Kalindri Vihar, Agra 14 , the court had observed: “A woman who is a major has a right to go anywhere and live with anyone she likes without getting married. This may be regarded immoral by society but it is not illegal. There is a difference between law and morality.”
[¶27.] Thus, Sec. 497 disregards the sexual autonomy which every woman possesses as a necessary condition of her existence. Implicit in seeking to privilege the fidelity of women in a marriage is the assumption that a woman contracts away her sexual agency when entering a marriage. Such a notion has no place in the constitutional order.
(^14) Payal Sharma vs. Superintendent, Nari Niketan Kalindri Vihar, Agra, C.M.H.C.W.P. Appeal No. 16876 of 2001
