Amisha Matkar (Co-Author)

Volume 1 Issue 1 (2020)

The writ petition is filed to challenge the constitutional validity of section 497 of IPC and section 198(2) of CrPC.2 This is often a public Interest Judicial Proceeding. Section 497 of the IPC is unconstitutional as it violates article 14 15 and 21 of the constitution as it is discriminating against men. Once the sexuality takes place with the consent of each of the parties, then there is no sensible reason for excluding one party from the liability. The same discrimination is against the truth scope and nature of Article 14 as highlighted in Maneka Gandhi v. Union of India,3 R.D. Shetty v. Airport Authority, and E.P. Royappa v. State of Tamil Nadu.

Section 497 of IPC can’t be understood as a beneficial provision under Article 15(3) and also exemption provided for women doesn’t fall within the scope of the Article. It indirectly discriminates against women by holding associate’s degree inaccurate presumption that women are the property of the men. This is often additional proven by the fact that if the extramarital sex
is engaged with the consent of the husband of the women the such act seizes to be an offense punishable under the IPC. Constant significances to institutionalized discrimination that was repelled by this Hon’ble court in Charu Khurana and Ors. V. Union of India. The same provision is additionally hit by the ratio laid down in Puttaswamy v. Union of India, since privacy is associated with an internal part of the ‘right to privacy’.

However, the respondent is of the view that sexual relationships outside marriage would breakdown the institution of marriage and it doesn’t warrant protection under article 21 and the right to privacy and right to liberty isn’t absolute one and is subjected to reasonable restriction when legitimate public interest is concerned. Article 15(3) saves the provision as a special for the benefit of women that is enabling provision providing for protecting discrimination.

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