YUSUF ABDUL AZIZ Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is an application by the petitioner under Article 228 of the Constitution. The petitioner is charged under Section 497 of the Indian Penal Code and he is being prosecuted for that offence. His contention is that Section 497 offends against the provisions of Articles 14 and 15 of the Constitution and therefore Section 497 is bad and he cannot be prosecuted under that section. He wants this question to be determined by the High Court, and, therefore, he desires that the case which is pending before the Presidency Magistrate should be sent up to us so that we should decide this point.

(2.) NOW, Section 497 defines adultery and adultery is defined as sexual intercourse by a man with a woman who is the wife of another man and the intercourse must take place without his consent while the man knows or has reason to believe that the woman is the wife of another, man. The section also provides that the wife shall not be punishable as an abettor. What is contended by Mr. Peerbhoy, on behalf of the petitioner is that this section contravenes Article 14 of the Constitution. That article provides that the State shall not deny to any person equality before the law or equal protection of the laws within the territory of India. That article has often been construed, and in substance it means that every law that the State passes shall operate equally upon all persons, and the question is whether Section 497 does not operate equally upon all persons. It will be noticed that as far as Article 14 is concerned, the protection given under that article is not restricted to citizens but extends to all persons. What is argued by Mr. Peerbhoy is that under Section 497 only a man is to be punished for the offence of adultery and the woman goes scot-free, and, therefore, according to him, the law with regard to adultery does not operate equally upon all persons; it operates unequally as between men and women. In our opinion that is not a sound contention. What Section 497 does is, it constitutes a particular offence and the offence is constituted when a man has sexual intercourse with a woman who is the wife of another man without his consent. The law did not create any offence when a woman has sexual intercourse with a man who is the husband of another woman. Whether the Legislature was right or wrong in doing so is entirely a different matter. But the nature of the offence itself is defined in Section 497 and that offence is restricted to a particular type of sexual intercourse. The question is whether this law operates unequally between different persons. Once the nature of the offence of adultery is understood and appreciated, it is clear that there could be no question of the law operating unequally, because the law was not intended to operate upon women at all. The mischief aimed at under Section 497 is only against men and not against women. It is then suggested that women are absolved from any punishment under this law by Section 497 declaring that the wife shall not be punishable as an abettor. Here, again, the law has so provided that for the purpose of this section the wife shall not be deemed to be an abettor at all. In the definition of who is an abettor an exception is carved out and that exception is in favour of women. Therefore the quarrel that Mr. Peerbhoy has is not really against the equality of law but against the policy of law which creates a particular kind of offence and restricts it to particular relationship and particular conduct. It is not for us to determine the wisdom or otherwise of the policy. But it is impossible to contend that as the section stands it does not operate equally upon all persons.

(3.) RELIANCE is also placed upon Article 15. Mr. Rahimtoola, on behalf of respondent No. 1, has taken a preliminary point and that point is that the petitioner is not a citizen, and not being a citizen, he cannot avail himself of the fundamental right embodied in Article 15 (1), which ensures only for the benefit of citizens. Mr. Rahimtoola is right that as far as Article 15 (1) is concerned it is only a citizen who can come to this Court for the enforcement of the fundamental right guaranteed to him under Article 15 (1 ). A person who is not a citizen cannot come to this Court for assistance, invoking his right under Article 15 (1 ). But we do not think it right to say that Mr. Peerbhoy's client has come to this Court for enforcement of the fundamental right under Article 15 (1 ). Mr. Peerbhoy's contention is that inasmuch as the law discriminates against citizen and citizen on grounds only of sex, the law is void under Article 13, and as he is being prosecuted under a void law, his prosecution is bad and he cannot be convicted of an offence under a void law. To that extent even a non-citizen may rely on any of the fundamental rights, not indeed for the purpose of enforcing those rights, but merely in order to point out to the Court that a particular law being in violation of any of these fundamental rights is bad, inoperative and no penal consequence can follow, from the breach of such a law. If Mr. Peerbhoy could satisfy us that this particular piece of legislation does discriminate contrary to what is provided under Article 15 (1), then undoubtedly it would be our duty to say that Section 497 is bad, and as Mr. Peerbhoy's client is being prosecuted under a void law, the prosecution must be quashed. Therefore we have to consider on merits what the position of Section 497 is in relation to Article 15 (1 ).