IN THE SUPEREME COURT OF INDIA

W.P. (________) NO. ___ OF 2006

CRIMINAL ORIGINAL WRIT JURISDICTION

IN THE MATTER OF:

STEPHANIE ... PETITONER

VERSUS

UNION OF WINDIA ... RESPONDENT

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION

JUSTICES OF THE SUPREME COURT OF WINDIA

MEMORANDUM ON BEHALF OF THE RESPONDENTS

 TABLE OF CONTENT

LIST OF ABBREVIATIONS ..............

BIBLIOGRAPHY ..............

STATEMENT OF JURISDICTION ..............

STATEMENT OF FACTS ...............

STATEMENT OF ISSUES ..............

ARGUEMENTS IN ADVANCED ...............

STATEMENT OF AUTHORITY .……......

PRAYERS ...............
 LIST OF ABBREVIATIONS

Art. Article

Ors. Others

S. Sections

V Versus

SC Supreme Court

IPC Indian Penal Code

Cr.P. C. Criminal Procedure Code

PIL Public Interest Litigation

Hon’ble Honorable

SCC Supreme Court Cases

UDHR Universal Declaration of Human Rights

Anr. Another

WP Writ Petition

Cri. Criminal
 BIBLIOGRAPHY

1) Indian Penal Code by K D Gaur

2) Criminal Procedure Code by Batuk Lal

3) Constitution of India by J N Pandey

WEBLIOGRAPHY

https://www.ndtv.com/cities/woman-allegedly-kills-alcoholic-husband-in-chhattisgarh-arrested-
2180459

https://www.ndtv.com/india-news/woman-kills-husband-buries-him-inside-house-in-madhya-
pradeshs-anuppur-police-2136941

https://www.ndtv.com/cities/palghar-maharashtra-unhappy-over-birth-of-second-girl-child-
maharashtra-woman-kills-husband-2089089

https://www.ndtv.com/cities/woman-allegedly-beats-alcoholic-husband-to-death-with-familys-help-
in-telangana-2087418

https://www.ndtv.com/cities/woman-in-an-affair-with-brother-in-law-allegedly-kills-husband-in-
uttar-pradeshs-bhadohi-2086544

https://www.ndtv.com/topic/wife-kills-husband

https://www.ndtv.com/agra-news/woman-laces-husband-s-milk-with-poison-in-agra-video-viral-
2036372
 STATEMENTS OF JURISDICTION

It is humbly submitted that the petitioner has approached the Hon’ble Supreme Court of
Windia invoking in jurisdiction under Article 32 of the Constitution of India. So, the Supreme
Court being the Apex court has the jurisdiction to try, hear and decide the petition.
 STATEMENT OF FACTS

In 1860, Windia Penal Code was enacted. Section 302 of IPC defines and "Punishment for
Murder". Section 300 reads:

Murder—Except in the cases hereinafter excepted, culpable homicide is murder, if the act by
which the death is caused is done with the intention of causing death, or—

(Secondly) —If it is done with the intention of causing such bodily injury as the offender
knows to be likely to cause the death of the person to whom the harm is caused, or—

(Thirdly) —If it is done with the intention of causing bodily injury to any person and the
bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause
death, or—

(Fourthly) —If the person committing the act knows that it is so imminently dangerous that it
must, in all probability, cause death or such bodily injury as is likely to cause death, and
commits such act without any excuse for incurring the risk of causing death or such injury as
aforesaid.

Section 302 of Windia Penal Code. "Punishment for Murder"

Whoever commits murder shall be punished with death, or [imprisonment for life], and shall
also be liable to fine.

Section 303 of Indian Penal Code. "Punishment for Murder by life convict" Whoever, being
under sentence of [imprisonment for life], commits murder, shall be punished with death.

Section 303 of Indian Penal Code. "Punishment for culpable homicide not amounting to
Murder"

Whoever commits culpable homicide not amounting to murder shall be punished with
[imprisonment for life], or imprisonment of either description for a term which may extend to
ten years, and shall also be liable to fine, if the act by which the death is caused is done with
the intention of causing death, or of causing such bodily injury as is likely to cause death, or
with imprisonment of either description for a term which may extend to ten years, or with
fine, or with both, if the act is done with the knowledge that it is likely to cause death, but
without any intention to cause death, or to cause such bodily injury as is likely to cause death.
The Republic of Windia is a peaceful country with similar law and customs as applicable in
the India. In the mentioned country, there is a City of Shipla, where a matrimonial knot was
tied between Jones and Stephanie who got married on 23.10.2000 in an arranged marriage
system.

Within two years of marriage, Stephanie conceived a baby boy with special needs. The
increased expenses primarily because.of the treatment of the child led to mismanagement of
financial expenditure.

Jones was not able to cope up with the stress and started an addiction of alcohol which led to
constant heavy quarrels and aggressive arguments between the couple. Over time the
problems between the couples increased, Every day from the office Jones would return drunk
and heavy quarrels would follow.

However, this she was not able to as she was stopped by Jones who physically assaulted her
and threatened her that if she tried to tell anything to her parents again then he will kill the
child and solve all the problems then and there. After that day, beating became a usual
practice and on several occasions, Jones also had sexual intercourse with Stephanie without
her consent. Under threat and for protection of her child Stephanie decided riot to share the
problem and endured the beating and harassment by her husbund which became a usual
practice. On night of 21 March 2006 again Jones came drunk at home and started beating
Stephanie due to which she sustained certain injuries on her body. The beating continued till
11:00 pm after which Jones went to his room and slept.

However, Stephanie was not able to sleep the entire night, she was thinking and weeping on
her situation, in her drawing room there were series of thoughts in her mind like about her
life, her child and about promises of good life made to her by her husband. In the early
morning of 22 March 2006 around 4 am, she took Iron rod in her hand and went to her bed
room and inflicted injuries on Jones's head and vital body parts which resulted into death of
Jones on the spot. Stephanie then at 6:30 am went to head of her child which resulted in the
death of the the room and inflicted a hit on child on the spot. After all this she sat in her
drawing room holding Iron rod in her hand. Later, when around 8:00 am when her maid came
and saw everything, she immediately called the police and Stephanie was arrested. Husband
Jones and the child were taken to hospital, where they were declared brought dead in the
hospital.
Police started inquires and case was filed against Stephanie. During the trial in the session
wife was held not liable for murder on the ground that she acted under the grave and sudden
provocation and is thus liable for culpable homicide. However, the Shipla High Court
convicted Stephanie for Murder. Now, Stephanie has filed an appeal before Hon'ble Supreme
Court of Windia

STATEMENT OF ISSUES

1)Whether this Writ Petition filed before the Hon’ble Court is maintainable. Section
497 of Indian Penal Code, 1860 infringes the Fundamental Right to Privacy- the Right
to Privacy and Dignity includes the right to have consensual intimate relationships.

2)Decriminalisation of adultery does not impact the institution of marriage.

3)Section 497 of Indian Penal Code, 1860 violates Articles 14 and 15 of the Indian
Constitution.

4)Whether Section 198(2) of the Code of Criminal Procedure Code, 1973 is

unconstitutional being unjust, illegal and violative of Fundamental Rights.
 ARGUMENTS IN ADVANCE

ISSUE 1: Whether this Writ Petition filed before the Hon’ble Court is maintainable?
Section 497 of Indian Penal Code, 1860 infringes the Fundamental Right to Privacy- the
Right to Privacy and Dignity includes the right to have consensual intimate
relationships.

The writ petition filed before the Hon’ble Court is not maintainable as it does not infringe the
fundamental rights in the present case. A petition can be filed under Article 32of the
Constitution only when the fundamental rights is violated. The freedom to have consensual
sexual relationship outside marriage by a married person, does not warrant protection under
Article 21. And moreover the right to privacy and personal liberty is not an absolute one and
it is subject to reasonable restrictions when the legitimate public interest is involved. The
Court in R. Rajagopal v. state of T.N., AIR 1991 SC 207 case held that there would be no
violation of the right to privacy if the person concerned “voluntarily thrusts himself into
controversy or voluntarily invites or raises a controversy”.

ISSUE 2: Decriminalisation of adultery does not impact the institution of marriage.

Family is the fundamental unit in society, if the same is disrupted it would impact stability
and progress. The state therefore has a legitimate public interest in preventing the institution
of marriage.

Adultery has the effect of not jeopardizing the marriage between the two consenting adults,
but also affects the growth and moral fibre of children. Hence, the state has legitimate public
interest in making it criminal offence.

Though adultery may be committed in private it is not a victim-less crime. It violates the
sanctity of marriage, the right of a spouse to marital fidelity of their partner and breaks the
fundamental unit of the family affecting the growth and well-being of the children, the family
and the society in general. By deterring individuals from engaging in conduct which is
potentially harmful to a marital relationship, Section 497 is protecting the institution of
marriage, and promoting social well-being.
 ISSUE 3: Section 497 of Indian Penal Code, 1860 violates Articles 14 and 15 of the
Indian Constitution.

Sec. 497, I.P.C. does not violate Art. 15 of the Indian constitution. Art. 15 (1) is an extension
of Art. 14. It expresses a particular application of the general principle of equality embodies
in Art. 14. Sec. 497 does not account for instances where the Wife has sexual relations
outside his marriage would not render it unconstitutional. It only makes a specific kind of
extramarital relationship an offence, the relationship between a man and a married woman,
the man alone being the offender. Since Section 497 was a special provision for the benefit of
women, it is saved by Article 15(3) which is an enabling provision providing for protective
discrimination. In Shafin Jahan v. Asokan K.M. & Ors.,59 this Court observed that each
individual is guaranteed the freedom in determining the choice of one’s partner, and any
interference by the State in these matters, would have a serious chilling effect on the exercise
of the freedoms guaranteed by the Constitution. In Yusuf Abdul Aziz v. State of Bombay, the
Bombay High Court, relied upon the carte blanche approach to Art. 15 (3): In this case, the
Supreme Court rejected a constitutional challenge to the adultery provision in the I.P.C.,
which is asymmetrical in that women cannot be prosecuted for adultery. The Court upheld
the law by a simple invocation of Art. 15 (3), ignoring the fact that the basis of the adultery
provision was precisely the kind of stereotypical gender- based assumptions that the
Constitution intended to do away with: i.e., that women are passive partners, lacking in
sexual autonomy. This inattention to how Art. 15 (3) ought not to end up becoming a shield
to perpetuate sexual and gender-role based stereotypes has plagued the Court’s jurisprudence
ever since.

ISSUE 4: Whether Section 198(2) of the Code of Criminal Procedure Code, 1973 is
unconstitutional being unjust, illegal and violative of Fundamental Rights.

As per the privations of sec 198(2) of CrPC only husband is considered to be aggrieved party.
And the aggrieved husband has no right under law to prosecute his wife, inasmuch as by the
very definition of the offence, only a man can commit it, not a woman. The philosophy
underlying the scheme of these provisions appears to be that as between the husband and the
wife social good will be promoted by permitting them to 'make up' or 'break up' the
matrimonial tie rather than to drag each other to the criminal court. They can either condone
the offence in a spirit of 'forgive and forget' and live together or separate by approaching a
matrimonial court and snapping the matrimonial tie by securing divorce. They are not
enabled to send each other to jail. Perhaps it is as well that the children (if any) are saved
from the trauma of one of their parents being jailed at the instance of the other parent.
Whether one does or does not subscribe to the wisdom or philosophy of these provisions is of
little consequence. For, the court is not the arbiter of the wisdom or the philosophy of the law.
It is the arbiter merely of the constitutionality of the law.”

We have to understand that in India marriage is considered as a sacrament and husband and
wife are considered to be binded by a divine relationship. Due to such sacred position of the
marriage in our society the ‘hitting’ of spouses on one another, using the provisions of the
Indian Penal Code and Cr.P.C. has been avoided until no alternative is left.Section 497 of the
Indian Penal Code and Section 198(1) read with Section 198(2) of the Criminal Procedure
Code go hand in hand and constitute a legislative packet to deal with the offence committed
by an outsider to the matrimonial unit who invades the peace and privacy of the matrimonial
unit and poisons the relationship between the two partners constituting the matrimonial unit.
The community punishes the 'outsider' who breaks into the matrimonial home and occasions
the violation of sanctity of the matrimonial tie by developing an illicit relationship with one
of the spouses subject to the rider that the erring 'man' alone can be punished and not the
erring woman. It does not arm the two spouses to hit each other with the weapon of criminal
law. That is why neither the husband can prosecute the wife and send her to jail nor can the
wife prosecute the husband and send him to jail. There is no discrimination based on sex.

And hence this provision is constitutionally valid.

 LIST OF AUTHORITIES

1. Smt. Preeti Choudhary v. The State Of Madhya Pradesh

2. Biju v. State of Kerala
3. Swapna Singh…Petitioner v. U.T Chandigarh
4. Billa Alias Aman Munda v. The State Of Jharkhand
5. Lakhwinder Kaur vs State Of Punjab on 14 July, 2006
 PRAYER

In the light of the issues raised, arguments advanced and authorities cited, may this
Hon’ble Court be pleased to:

In the cases culpable homicide murder, the act by which the death is caused is done
with the intention of causing death, it is done with the intention of causing such bodily
injury as the offender knows to be likely to cause the death of the person to whom the
harm is caused

Whoever commits murder shall be punished with death, or [imprisonment for life], and shall
also be liable to fine.

In this case Person commit crime so request you to give sentence of [imprisonment
for life], commits murder, shall be punished with death and shall also be liable to fine.

AND/OR
Pass any other order that it deems fit in the interest of Justice, Equity and Good
Conscience. And for this, the Respondents as in duty bound, shall humbly pray.

COUNSELS FOR THE RESPONDENTS