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MEMORIAL ON BEHALF OF RESPONDENT TEAM CODE: JMNMCC 1 st^ JAGANNATH MEMORIAL NATIONAL MOOT COURT COMPETITION, 2019 IN THE HON’BLE SUPREME COURT OF INDIA REVIEW JURISDICTION CURATIVE PETITION (Criminal) ( / 2019) In REVIEW PETITION (Criminal) ( / 2018) In WRIT PETITION (Criminal) ( / 2018) IN THE MATTER OF UNION OF INDIA………………………………….APPELLANT Versus WOMEN FREEDOM UNION (WFU)………………RESPONDENT (UNDER ARTICLE 137 OF THE CONSTITUTION OF INDIA) MEMORIAL ON BEHALF OF THE RESPONDENT
MEMORIAL ON BEHALF OF RESPONDENT TABLE OF CONTENT TABLE OF CONTENT………………………………………………………………………….. 2 INDEX OF ABBREVIATIONS…………………………………………………………………. 3 INDEX OF AUTHORITIES…………………………………………………………………..…. 4 CASES CITED BOOKS REFERRED STATUTES ARTICLES AND LEGAL JOURNALS TREATIES AND CONVENTIONS LEGAL DATABASE STATEMENT OF JURISDICTION………………………………………………………..……. 9 STATEMENT OF FACTS…………………………………………………………………...…. STATEMENT OF ISSUES…………………………………………………………………….. 12 SUMMARY OF ARGUMENTS……………………………………………………………….. 13 ARGUMENTS ADVANCED………………………………………………………………...… PRAYER…………………………………………………………………………………………
MEMORIAL ON BEHALF OF RESPONDENT INDEX OF AUTHORITIES CASES CITED
- Abdul Rehman v. Pinto, AIR 1951 Hyd. 11.
- Anuj Garg v. Hotel Association of India, AIR 2008 SC 663.
- Ashok Kumar Sahu v. UOI, (2006) 6 SCC 704.
- Ashutosh Gupta v. State of Rajasthan, (2002) 4 SCC 34: AIR 2002 SC 1533.
- Avtar Singh Sekhon v. UOI, AIR 1980 SC 2041.
- Bijoe Emmanuel v. State of Kerala, (1986) 3 SCC 615: AIR 1987 SC 748.
- CBI and Ors. v. Keshub Mahindra, (1996) 6 SCC 129.
- Chandra Kanta v. Sheik Habib, AIR 1975 SC 1500: (1975) 1 SCC 674.
- Charu Khurana and others v. Union of India and others, (2015) 1 SCC 192.
- Chiranjit Lal v. Union of India, AIR 1981 SC 41.
- Col. Avtar Singh Sekhon v.Union of India, AIR 1980 SC 2041.
- Common Cause, a Registerd Society v. UOI, AIR 1999 SC 2979.
- Gobind v. State of Madhya Pradesh, 1975 AIR 1378: 1975 SCR (3) 946.
- Gopalan v. State of Madras, AIR 1950 SC 2746: 1950 SCR 88.
- Green View Tea & Industries v. Collector, Golaghat and Another, (2002) 1 SCC 109.
- Gurdeep Singh v. State of Punjab, (2005) 10 SCC.
- Harakchand v. UOI, AIR 1970 SC 1453: (1969) 2 SCC 166.
- Hinds v. R, (1976) 1 All ER 355.
- Hiral P Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 165 : AIR 2016 SC 4774 : 2016 (9) SCJ 204.
- Hoystead v. Commr. of taxation, (1925) AC 155, (1925) All ER 56, (1926) 42 TLR 207, 67 ER
- Indira Sawhney v. UOI, (1992) SUPP. 3 SCC 217.
- J Srinivas Raju v. State of Orissa, 113 (2012) Cut LT 13 (22) (Ori).
- Jagjit Singh v. State, AIR 1954 Hyd. 28.
- James Sibongo v. Lister Lutombi Chaka and Another, CASE NO: SA 77/2014.
- John Vallamattom v. UOI, Writ Petition (Civil) 242 of 1997.
- Joseph Shine v.UOI, Writ Petition (Crl.) No. 194 of 2017.
MEMORIAL ON BEHALF OF RESPONDENT
- Justice K. S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
- Kameshwar Pd. v. State of Bihar, AIR 1962 SC 1166: 1962 SUPP (3) SCR 369.
- Kesav Nanda Bharati v. State of Kerala, (1973) 4 SCC 225.
- Kharak Singh v. State of U.P., 1963 AIR 1295: 1964 SCR (1) 332.
- Khoday Distilleries Ltd. And Another v. Registrar General, Supreme Court of India, (1996) 3 SCC 114.
- Kihota Hollohon v. Zachilhu & Ors., AIR 1993 SC 412: 1992 SUPP. (2) SCC 651.
- Laxmi Khandsari v. State of U.P., AIR 1981 SC 873, 891: (1981) 2 SCC 600.
- Lily Thomas v. Union of India, AIR 2000 SC 1650.
- M. G. Badappanabar v. State of Karnataka, (2000) SUPP. 5 SCR 302.
- M. Nagaraj v. UOI, (2006) 8 SCC 212.
- M/S Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi, (1980) 2 SCC 167.
- Malak Singh v. State of Punjab, AIR 1981 SC 760: (1981) 1 SCC 420.
- Manganese Ore (India) Ltd. v. The Regional Assistant Commissioner of Sales Tax, Jabalpur, (1976) 4 SCC 124.
- Mohd. Aslam v. Union of India & Others, (1996) 2 SCC 749.
- Motor General Traders v. State of A.P., AIR 1984 SC 121.
- Nar Singh Pal v. UOI, (2000) 3 SCC 589,594: AIR 2000 SC 1401.
- National Human Rights Commission v. State of Arunachal Pradesh, AIR 1996 SC 1234.
- National Legal Services Authority v. Union of India and others, (2014) 5 SCC 438.
- Navtej Singh Johar v. Union of India, [WP (CRL.) No. 76/2016].
- Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice, W. P. (Crl.) No. 76 of 2016 D. No. 14961/201.
- Neera Mathur v. L.I.C, 1992 AIR 392: 1991 SCR Supp. (2) 146.
- Northern India Caterers v. Lt. Governor of Delhi, AIR 1980 SC 674: (1980) 2 SCC 167.
- Nupur Talwar v. C.B.I., AIR 2012 SC 1921.
- Pawan Kumar v. State of Himachal Pradesh, (2017) 7 SCC 780.
- Payal Sharma v. Supdt, Nari Niketan kalindri vihar, agra, AIR 2001 All 254.
- People’s Union for Civil Liberties v. Union of India, (1997) 1 SCC 301.
- Pn Eswara Iyer v. Registrar, Supreme Court of India, AIR 1980 SC 808.
- R v. R., (1991) 4 All ER 481.
MEMORIAL ON BEHALF OF RESPONDENT
- W. Kalyani v. State Thro’ Inspector of Police and Another, (2012) 1 SCC 358.
- Yusuf Abdul Aziz v. State of Bombay, AIR 1951 Bom. 470.
- Zahira v. State of Gujarat, (2004) 5 SCALE 397. BOOKS REFERRED
- Batuk Lal, the Code of Criminal Procedure, 1973 (Central Law Agency, 2017).
- Dr. J.N. Pandey, Dr. Surendra Sahai Srivastava (ed.), Constitutional Law of India (Central Law Agency, 54th^ Edition, 2016).
- Dr. Narendra Kumar, Constitutional Law of India (Allahabad Law Agency, 9th^ Edition, Re. 2016).
- K.D. Gaur, Textbook on I.P.C. (Universal Law Publications, 6th^ Edition, 2016).
- M.P. Jain, Indian Constitutional Law (Lexis Nexis, 8th^ Edition, 2018).
- Mulla, the Code of Civil Procedure (Lexis Nexis, 19th^ Edition, 2017).
- P.S.A. Pillai, Dr. K. I. Vibhute, Criminal Law (Lexis Nexis, 12th^ Edition, Re. 2016).
- Paras Diwan & P. Diwan, Modern Hindu law, (Allahabad law agency, 23rd^ edition, Re. 2018).
- Ratanlal & Dhirajlal, I.P.C. ( L e x i s N e x i s , Nagpur, 30th^ Ed., 2008).
- Ratanlal & Dhirajlal, the Code of Criminal Procedure (Lexis Nexis, 22nd^ Edition, 2017).
- S.N. Mishra, the Code of Criminal Procedure, 1973 (Central Law Publications, 20th Edition, 2016).
- Surya Narayan Mishra, Shriniwas Gupta (ed.), I.P.C. (Central Law Agency, Allahabad, 20th^ Edi, 2016). STATUTES AND RULES
- The Code of Criminal Procedure, 1973.
- The Constitution of India, 1950.
- The Indian Evidence Act, 1872.
- The Indian Penal Code, 1860.
- The Supreme Court Rules, Order XLVIII, Rule 6 (1966). ARTICLE AND LEGAL JOURNALS
- “Decriminalization of Adultery and Defenses”, available at: http://Endvawnow.Org.
MEMORIAL ON BEHALF OF RESPONDENT
- Cooley’s Constitutional Limitations, Vol. 1.
- Crowford on Statutory Construction, 2018-19.
- Dhruv Tiwari & Anand Vardhan Narayan, “Recolouring the colored walls of constitution: a futile judicial exercise of creating the curative petition”, IJLPP 2.2E.
- Government of India, Report: Committee on reforms of criminal justice system, (Ministry of Home Affairs, 2003).
- Law commission of India, 42nd^ Report on ‘The I.P.C.’, (Government of India, 1972).
- Macaulay, Mac’leod, Anderson and Millett, A Penal Code Prepared by the Indian Law Commissioners, Pelham Richardson, 1838.
- Ratna Kapur and Brenda Cossman, Subversive Sites: Feminist Engagements with Law in India, Sage Publications.
- Statement by the United Nations Working Group on “Discrimination against Women in Law and in Practice.”
- Sutherland on Statutory Construction, “Interpretation of Statutes”, II.
- UN Women, Preventing Conflict, Transforming Justice, Securing the Peace: “A Global Study on the Implementation of United Nations Security Council resolution”.
- Constitutional Court Of Guatemala, Expediente 936-95, (07.03.1996)
- Constitutional Court Of South Korea, 2009 Hun-Ba 17, (26.02.2015) TREATIES AND CONVENTIONS
- European Convention of Human Rights, 1950.
- International Covenant on Civil and Political Rights Act, 1966.
- The International Covenant on Civil Rights, 1966.
- Universal Declaration of Human Rights, 1948. LEGAL DATABASE Manupatra. SCC Online.
MEMORIAL ON BEHALF OF RESPONDENT STATEMENT OF FACTS SOCIAL STATUS OF WOMEN IN INDIA There is a moral notion in Indian society regarding ideal marriages. The past speaks that women were mistreated in various spheres of life across religions, regions and communities. Except for a few revolutionary activities, the situation hanged about more or less the same in the ancient, medieval, and early modern times. Crime against women like female foeticide, discrimination against women, rape, etc. is common. Regardless of existing stringent laws and safeguards to women, the Status of women has not elevated. The unfortunate part of gender inequality in our society is that the women too, through, continued socio-cultural conditioning, have accepted their subordinate position to men and they are also part and parcel of same patriarchal system. WRIT PETITION BY WFU FOR DECRIMINALIZING ADULTERY Women Freedom Union (WFU), Non-Governmental Organization, raised its concern about discrimination against the women in so far as Section 497 of I.P.C. confers upon the husband only the right to prosecute the adultery and not women, filed the Writ Petition before Hon'ble Supreme Court of India challenging constitutional validity of Section 497 of the I.P.C. and Section 198 of the Code of Criminal Procedure being in violation of Article 14, 15 and 21 of Constitution of India. DISMISSAL OF WRIT PETITION On 23.02.2018, Hon'ble Supreme Court passed its judgment dismissing the Writ Petition held that although right to be heard is a fundamental right but, law can’t be held unconstitutional on such ground owing to express provision under law. REVIEW PETITION FILED BY WFU Being aggrieved by the judgment passed by Hon'ble Supreme Court, WFU filed review Petition on the ground that said judgment experiences errors apparent on the face of the record as liberty envisaged under the Indian Constitution will be in peril.
MEMORIAL ON BEHALF OF RESPONDENT The said review petition was allowed by the Hon'ble Supreme Court. The Court held that Section 497 of the I.P.C. and Section 198 of the Code of Criminal Procedure are unconstitutional. ADULTERY DECLARED UNCONSTITUTIONAL The Court decriminalized the adultery observing that “Treating adultery an offence, we are disposed to think, would tantamount to the State entering into a real private realm. Under the existing provision, the husband is treated as an aggrieved person and the wife is ignored as a victim. ” CURATIVE PETITION FILED BY UNION OF INDIA Being aggrieved by the judgment passed by the Hon'ble Supreme Court in a review petition, the Union of India has preferred Curative Petition. The some of the grounds raised by the Union of India are as follows: That Section 497 is valid on the ground of affirmative action. All discriminations in favor of women are saved by Article 15 (3), and hence were exempted from punishment. That Section 497 does not account for instances where the husband has sexual relations outside his marriage would not render it unconstitutional. The sanctity of family life and the right to marriage are fundamental rights comprehended in the right to life under Article 21. An outsider who violates and injures these rights must be deterred and punished in accordance with criminal law. It was finally suggested that if this Court finds any part of this Section violative of the Constitutional provisions, the Court should read down that part, in so far as it is violative of the Constitution but retain the provision. The main purpose of enacting section 497, I.P.C. is to curb crime by way of deterrence, but declaring Section 497 as unconstitutional by Apex Court of the country, will not only promote deceitful and immoral activity between man and woman but will also create chaos in society.
MEMORIAL ON BEHALF OF RESPONDENT SUMMARY OF ARGUMENTS ISSUE 1. WHETHER THE CURATIVE PETITION IS MAINTAINABLE? It is humbly submitted before this hon’ble court that the appeal filed by the appellant under Article 137 of the Constitution of India is not maintainable. The curative petition evolved in Rupa Ashok Hurra v. Ashok Hurra,^1 was made to be filed only subject to fulfillment of grounds specifically stated. Whereas, the filed petition does not fulfill the grounds for the same as the discerning judgement of the court striking down the provision was rational and embody no error on any part of law or fact. The curative petition observes strict procedural precaution because the matter relates to re-examination of a final decision of this court which is not to be lightly settled as it violates the principle of finality of judgment of the court. Thus, permitting the parties to reopen the concluded judgments of this court by filing repeated interlocutory applications is clearly an abuse of the process of law and would have far reaching adverse impact on the administration of justice. ISSUE 2. WHETHER SECTION 497, I.P.C. PROTECTS THE SANCTITY OF MARRIAGE? It is humbly submitted before this hon’ble court that the said provision does not protect the sanctity of marriage but treats women as property of husband and undermines the status of women in marriage. It treats women as property of her husband by making a third party liable for encroachment into marriage leaving the fact that it is a consensual sexual act between the man and women, which further implies lack of women’s right and capability of taking her own decisions. The said provision in no way protects the sanctity of marriage as the sanctity of marriage is not offended only by sexual acts of wife outside marriage but also by man doing the same act with an unmarried women or widow. Section 497, I.P.C. puts women in a state of marital subordination to man entitled to control over her body as consent of husband to the sexual act of women would not render it as a crime, which further badly destroys women’s dignity. (^1) Rupa Ashok Hurra v. Ashok Hurra, JT (2002) 3 SC 609: (2002) 4 SCC 388.
MEMORIAL ON BEHALF OF RESPONDENT ISSUE 3. WHETHER THE EXEMPTION GRANTED TO MARRIED WOMEN UNDER SECTION 497, I.P.C. VIOLATES FUNDAMENTAL RIGHT GUARANTEED UNDER THE CONSTITUTION? It is humbly submitted before this Hon’ble Court that the said provision of Section 497, I.P.C. is violative of the fundamental rights guaranteed by the Constitution of India. The exemption granted to women is based on the notion of women being the ‘victim’ and men the ‘seducer’ which is no longer relevant or applicable in the contemporary societal aspect. Also, the provision by completely exempting women from punishment under adultery as an abettor discriminates against men as it puts both men and women under similar circumstances and fault on different pedestals. The Section is in no way protected under Article 15 (3) of the Constitution of India which does not provides for exemption of women from criminal liability on the baseless presumption of weak status. ISSUE 4. WHETHER SECTION 497, I.P.C. READ WITH SECTION 198 (2) Cr.P.C. IS CONSTITUTIONAL? It is humbly submitted before this Hon’ble Court that the Section 497, I.P.C. along with Section 198 (2), Cr.P.C. shall be held unconstitutional as they are in violation of Article 14, 15 and 21 of the Constitution of India. The Section is manifestly arbitrary as it treats women as property of husband and creates unreasonable categorization between genders. The law intrudes in the privacy of the individual and hurts the dignity of women by allowing her husband to control her sexual activities. Also, there can’t be any segregation of valid provision from given provisions as it would then lead to a residue having no practical application. Hence, it needs to be annulled as a whole owing to doctrine of severability, which in this case is that if law be made gender neutral it would no longer have any efficacy.
MEMORIAL ON BEHALF OF RESPONDENT practice is deprecated by the Court.^6 It may evoke exemplary costs.^7 It can’t be exercised merely because there is a possibility of taking a different view.^8 However, in the present case no such strong grounds exist for entertaining the curative petition filed by the petitioner. Thus, the court has rightly struck down 158 year old adultery law and observed that the husband is not the master of wife. 1.2 THE CURATIVE PETITION CAN BE FILED IN ONLY EXCEPTIONAL CASES It was the intention of the Constitution framers that the constitutional provisions with regard to judicial review must be construed strictly. They intended to impose limitation on the power given to the Supreme Court for reviewing its own judgment^9. This is evident from Art. 137 of the Constitution of India which starts with “Subject to any law made by the Parliament...” rather than a non-obstante clause^10. Nonetheless, In Rupa Ashok Hurra v. Ashok Hurra,^11 the court made a conjoint reading of Art. 137 with Order XLVII Rule 6 of the Supreme Court Rules for propounding the constitutional basis for curative petition. The intention of the constitutional bench in Rupa Hurra’s,^12 case was that the curative petition will be filed in only exceptional cases,^13 however, in practice it is just opposite. Since its evolvement in the year 2002, many litigants across the country have filed number of curative petitions, So far only a handful of curative petitions have been able to make out a case within the parameters of Rupa Hurra case. Litigants, irrespective of the fact that whether their case actually fulfils the prerequisites of curative petition or not, they file a curative petition with a hope that the Supreme Court will adjudicate and pronounce favorable judgment. (^6) Zahira v. State of Gujarat, (2004) 5 SCALE 397. (^7) Nupur Talwar v. C.B.I., AIR 2012 SC 1921. (^8) Ibid. (^9) Dhruv Tiwari & Anand Vardhan Narayan, “Recolouring The Colored Walls of Constitution: A Futile Judicial Exercise of Creating The Curative Petition “, IJLPP2.2E. (^10) Ibid. (^11) Rupa Ashok Hurra v. Ashok Hurra, JT (2002) 3 SC 609: (2002) 4 SCC 388. (^12) Ibid. (^13) Sidram S. Patil and others v. Gurunath Shivappa Patil and others (2005) 2 SCC 358; Col. Avtar Singh Sekhon v.Union of India, AIR 1980 SC 2041; V.M. Elangovan v. Inspector; Varinder Singh@ RAJA v. State of Punjab and Anr., (2014) 5 SCC 859.
MEMORIAL ON BEHALF OF RESPONDENT In Sumer v. State of Uttar Pradesh,^14 an aggrieved party filed a curative petition on the ground that the evidence and the factors taken into account by the High Court have not been properly appreciated by the Court when it allowed the appeal of the State against the judgment of acquittal. The Court held that grounds taken in the curative petition by the aggrieved party makes it obvious that an attempt is made to have another opportunity for re-appreciation of evidence. By rejecting and strongly criticizing such curative petition, the Supreme Court said that such re- appreciation of evidence is impermissible. Thus, it can be inferred from the above that curative petitions is for rarest of rare cases, meritorious cases will invoke the inherent jurisdiction and only such matters will be entertained where the judgment genuinely suffers from any miscarriage of justice. 1.3 THE DOCTRINE OF FINALITY OF JUDGEMENT MUST BE RESPECTED “Interest republicae ut sit finis litium” elucidates that it is for the public good that there must be an end of litigation after a long hierarchy of appeal. Certainty and continuity are essential ingredients of rule of law. Certainty in the law would be considerably eroded and suffer a serious setback if the highest court of the land readily overrule the views expressed by it in earlier cases even though those views had held the field for a number of years.^15 A departure from the principle of finality can only be justified in circumstances of a substantial and compelling character makes it necessary to do so. A judgment is not reconsidered except “where a glaring omission or patent mistake or like grave error has crept in the earlier decision.”^16 It is rare that in an adversarial system, despite the judges of the highest court doing their best, one or more parties may remain unsatisfied with the most correct decision. Opening door for a (^14) Sumer v. State Of Uttar Pradesh, 2005 CRILJ 540. (^15) Dhruv Tiwari & Anand Vardhan Narayan, “Recolouring the Colored Walls of Constitution: A Futile Judicial Exercise of Creating the Curative Petition “, IJLPP2.2E; Hoystead v. Commr.of taxation, [1926] AC 155, [1925] All ER 56, (1926) 42 TLR 207, 67 ER 313. (^16) Chandra Kanta v. Sheikh Habib, AIR 1975 SC 1500: (1975) 1 SCC 674; PN Eswara Iyer v. Registrar, Supreme Court Of India, AIR 1980 SC 808; Avtar Singh Sekhon v. UOI, AIR 1980 SC 2041: 1980 Supp SCC 562, Northern India Caterers v. Lt. Governor of Delhi, AIR 1980 SC 674: (1980) 2 SCC 167; Sow Chandra Kanta v. Sk. Habib (1975) 1 SCC 674, 1975 SCC (Cri) 305, (1975) 3 SCR 933); R.D. Sugar v. V.Nagary, AIR 1976 SC 2183.
MEMORIAL ON BEHALF OF RESPONDENT ISSUE 2. WHETHER SECTION 497 I.P.C. PROTECTS THE SANCTITY OF MARRIAGE? It is humbly submitted before this Hon’ble court that the said provision does not protect the sanctity of marriage and instead treats women as property of husband and undermines the status of women in marriage. 2.1 SEC. 497 I.P.C. GRANTS THE PROPRIETARY INTEREST TO HUSBAND OVER HIS WIFE It is submitted that the provision treats a married woman as a property of the husband. This provision was drafted by Macaulay based on an erroneous presumption that women are the property of the men and the husband had the sole right over the body of his wife.^21 This is evidenced by the fact that if the adultery is engaged with the consent of the husband of the woman then, such act ceases to be an offence. So, the idea was not to criminalize physical relations outside marriage but rather to put a bar on any infidelity by the wife without the consent of her “owner”. Moreover, it uses the same analogy that is used for the offence of trespass. There is no doubt then that this Section treats a woman like a man’s chattel. 22 The way a person is not expected to enter on the property of the other without his consent, another man is not expected to have sexual intercourse with someone’s wife without his consent. Adultery therefore is not an offence against the matrimonial home but against the husband himself. Further, the notion that Sec. 497, I.P.C. was intended to preserve fidelity between partners is not true as the provision does not bother about a husband having sex outside marriage with an unmarried woman. The concern of the provision was with sexual intercourse with wife of another man, and hence the provision was majorly addressing the 'harm' felt by the other man. It is all about protecting a husband’s interest in his “exclusive access to his wife’s sexuality”.^23 (^21) Macaulay, Macleod, Anderson And Millett, A Penal Code Prepared By The Indian Law Commissioners, Pelham Richardson, 1838, Note ‘Q’, P.175. (^22) R. v. R., (1991) 4 ALL ER 481; at p.484. (^23) Ratna Kapur and Brenda Cossman, Subversive Sites: Feminist Engagements with Law in India, Sage Publications (1996), at Page 120.
MEMORIAL ON BEHALF OF RESPONDENT It is important to note that Sec. 497, I.P.C. does not bring within its purview an extra marital relationship with an unmarried woman or a widow, the law treats it with unconcern. Thus, a married man may engage in sexual relations outside marriage with a single woman without any repercussion in criminal law. It is clear, therefore, that this archaic law has long outlived its purpose and does not square with today‘s constitutional morality, in that the very object with which it was made has since become manifestly arbitrary, having lost its rationale long ago and having become in today‘s day and age, utterly irrational. 2.2 NOTION OF MARITAL SUBORDINATION DENYING SEXUAL AGENCY OF WIFE IS NOT RELEVANT IN CONTEMPORARY SOCIETY From the historical perspective marriage had been considered a sacrament however, in the modern perspective, the marriage is held to be a contract as it now, can be dissolved and requires consent of parties.^24 In the eyes of law, as marriage is a civil contract, the consensual sexual relation of one spouse outside marriage should at best be a violation of that contract that is, it can be a civil offence but, not a criminal offence. 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. 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.^25 As it is contended that the adultery laws are needed to protect the divine and pure institution of marriage. In this regard, it is essential for the judiciary to recognize that a “divinely sanctioned” (^24) Mulla’s Principles of Hindu Law; Aqil Ahmad, Prof. Iqbal Ali Khan (ed.), Text Book of Mohammedan Law (Central law Agency, 15th^ Edition, 1992). (^25) UN Women, Preventing Conflict, Transforming Justice, Securing the Peace: A Global Study on the Implementation of United Nations Security Council Resolution 1325, Pp. 83-84, (New York, 2015).
