IN THE SUPREME COURT OF INDIA
|NAME OF THE CASE
|Yusuf Abdul Aziz v. The State of Bombay & Ors.
|Case no. 349 of 1951
|DATE OF THE JUDGEMENT
|10 March 1954
|Yusuf Abdul Aziz
|The State of Bombay & Ors.
|Mehar Chand Mahajan (CJ), B.K. Mukherjea, Sudhi Ranjan Das, Vivian Bose, Ghulam Hasan
|Constitution of India; Indian Penal Code, 1860
|Constitution of India, Arts. 14, Arts. 15, Arts. 228, Arts. 132(1), Arts. 134(1) (c)Indian Penal Code, 1860, S. 497
In this particular case a foreigner named Yusuf Abdul Aziz was accused of violating Section 497 of the Indian Penal Code. They subsequently filed a complaint against him, and the case was still pending before the Presidency Magistrate when he applied under Article 228 of the Constitution to challenge Section 497 constitutionality in the High Court on the grounds that it violates the fundamental right to equality guaranteed by the Indian Constitution because it does not hold women equally responsible for an adulterous relationship.
The Hon’ble court held that “Section 497 does not contravene any of the fundamental rights laid down in the Constitution and therefore it is not bad or void under Article 13”. There is no question that the law applies differently to men and women because the offence described in Section 497 of the IPC was not meant to affect women in any way. Therefore, he was unable to accept the claim that Article 14 of the Constitution had been violated. The appeal is dismissed.
“Adultery is the act of voluntary sexual intercourse between a married person and someone other than that person’s current spouse or partner”. According to Section 497 of the IPC, adultery is defined. A married individual engaging in extramarital sexual activity with a person who is not a spouse is known as adultery. Divorce can be granted due to adultery. “In addition to obtaining a divorce, some states also allow courts to consider adultery as a factor in dividing property, awarding alimony, or awarding custody of the children”.
Adultery is strictly prohibited under Hindu law for both moral and societal grounds. Additionally, there were many acts for dealing with adultery involving various classes of women. “When the Indian Penal Code, was drafted Lord Macaulay didn’t approve adultery as a provision in IPC, but the second report the presidents disfavoured Macaulay’s perceptions about adultery and imposed heavy reliance upon his marks and concluded that committing adultery was a heinous crime and the offender will be liable for punishment. Hence, section 497 was instituted in Indian Penal Code”.
Section 497 of the IPC was challenged immediately after Indian constitution was adopted on the grounds that it frequently violates the spirit of equality ingrained in the constitution. Adultery is not only a circumstance in which both parties engaged in sexual intercourse must be married. A married man may engage in sexual activity with an unmarried woman, and vice versa.
The case of Yusuf Abdul Aziz v. The State of Bombay  is related to “the offence of adultery under Section 497 of the IPC as they alleged it to be biased in favour of the females as only males were punishable under this section”.
But recently the Supreme Court of India has declared 150 years old law adultery as unconstitutional which treats a “husband as the masters of his wife” in the case of Joseph shine vs. Union of India.
FACTS OF THE CASE
The factual matrix of this case is, it was the first time since India’s independence that the definition of adultery under the IPC was disputed in court. A charge under section 497 of the IPC was brought against Yusuf Abdul Aziz, a foreign national. When he filed a petition under Article 228 of the Constitution to challenge the legality of Section 497 of the IPC in the High Court, they had filed a complaint against him and the case was still pending before the presidency Magistrate.
Because it does not hold women equally accountable for being in an adulterous relationship, section 497 of the IPC violates the fundamental right to equality provided by the constitution, and he challenged its constitutional validity. He argued that Section 497 of the IPC solely punishes only male offenders and leaves women unpunished since it violates Article 14 of the Constitution statement of the basic right to equality and only provides punishment for male offenders. Therefore, Section 497 of the IPC cannot be used to prosecute him.
Because Yusuf Abdul Aziz is not an Indian citizen, the respondent said, he is not eligible to exercise his fundamental right under Article 15 (1) of the Constitution.
ISSUE RAISED BEFORE THE COURT
- Does Section 497 of the IPC violate Articles 14 and 15 of the Constitution and, as a result, go against the letter of the law?
- Can the basic right provided in Article 15(1) of the Indian Constitution be exercised by a non-Indian citizen?
ARGUMENTS FROM THE APPELANT SIDE
- Learned counsel for the petitioner submitted that Section 497 of the Indian Penal Code violates Article 14 of the Constitution because it unfairly denies women the rights they are guaranteed to men by creating a distinction between men and women.
- It is also stated that according to Section 497 of the IPC, the woman has no legal authority to bring charges against her husband for having an extramarital affair.
ARGUMENTS FROM THE RESPONDENT SIDE
- Learned counsel representing the respondent stated that it is commonly accepted that it is the man who is the seducer and not the woman. In order to protect the purity of the marriage household, the law encompasses men who commit adultery.
- Constitution of India
- Article 14:- Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
- Article 15:- Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, and place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to.
(a) Access to shops, public restaurants, hotels and palaces of public entertainment; or
(b) The use of wells, tanks, bathing Ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
(3) Nothing in this article shall prevent the State from making any special provision for women and children.
(4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
- Article 228:- Transfer of certain cases to High Court If the High Court is satisfied that a case pending in a court subordinate to it involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the case, it shall withdraw the case and may
(a) Either dispose of the case itself, or
(b) Determine the said question of law and return the case to the court from which the case has been so withdrawn together with a copy of its judgment on such question, and the said court shall on receipt thereof proceed to dispose of the case in conformity with such judgment.
- Article 132(1):- Appellate jurisdiction of Supreme Court in appeals from High Courts in certain cases.
- An appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in the territory of India, whether in a civil, criminal or other proceeding, if the High Court certifies under Article 134A that the case involves a substantial question of law as the interpretation of this Constitution.
- Article 134 (1)(c):- certifies under Article 134A that the case is a fit one for appeal to the Supreme Court: Provided that an appeal under sub clause (c) shall lie subject to such provisions as may be made in that behalf under clause (1) of Article 145 and to such conditions as the High Court may establish or require.
- Indian Penal Code, 1860
- Section 497:- Adultery.—Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.
The Hon’ble court held that “Section 497 does not contravene any of the fundamental rights laid down in the Constitution and therefore it is not bad or void under Article 13 of the constitution.”
The court observed that there is no question that the law treats men and women differently because the offence described in Section 497 of the IPC was never intended to affect women. As a result, he was unable to accept the claim that Article 14 of the constitution had been broken. According to the Indian Constitution, the fundamental right protected under Article 15(1) is only applicable to Indian nationals only. However, he clarified that even a non-citizen may rely on any of the fundamental rights to inform the court that a particular law is bad, ineffective, and that a violation of such a law has no potential for criminal consequences.
Regarding the issue of a violation of Article 15(1), it was determined that the status of women in our nation was shockingly precarious at the time Section 497 of the IPC was passed. They weren’t treated similarly to males, thus legislation was necessary to safeguard them. In light of this, Section 497 of the IPC was written to provide women a position in the law that is compassionate and sympathetic to the plight of women in this nation.
It was further observed that “law-making is the legislature’s job & it is the legislature’s right whether to amend the law considering the change in a situation of the women & social conditions or to do away with the law”. The appeal is dismissed by the court.
In my opinion, Where the current discussion of the Supreme Court’s judgement takes us is still up for debate. Adultery is still a legitimate reason for divorce, notwithstanding the Supreme Court’s assertion that the law incorrectly portrays women as the property of males and violates their fundamental rights. Consequently, it might be seen as something that imposes a justifiable constraint, indicating that there are legitimate restrictions on sexual autonomy.
In addition, “a woman whose husband committed adultery with another woman was not remedied by the law, which is also a violation of the gender neutrality clause set out in the Indian Constitution”. The law has been challenged multiple times, but it has not altered.
 Author is 3rd semester student of Amity Law School, Lucknow.
 LEGALSERVICEINDIA, http://www.legalservicesindia.com/article/2191/Adultery.html (last visited, Aug. 3, 2022).
 Yusuf Abdul Aziz vs. The State of Bombay & ors. , AIR 1954 SC 321.
 Joseph Shine vs. Union of India (2019) 3 SCC 39.
 INDIA CONST. art. 14.
 INDIA CONST. art. 15.
 INDIA CONST. art. 228.
 INDIA CONST. art. 132, cl. 1.
 INDIA CONST. art. 134, cl. 1, cl. c.
 Indian Penal Code, 1860, §497.