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TEAM CODE: TC12
SHAMBHUNATH INSTITUTE OF LAW

1ST INTRA MOOT COURT
COMPETITION
2019
BEFORE THE HON’BLE

SUPREME COURT OF INDIA
(UNDER ARTICLE 137 OF THE CONSTITUTION OF INDIA)
UNION OF INDIA ..................................................................... APPELLANT
V.
WOMEN FREEDOM UNION ............................................... RESPONDENT
MEMORANDUM ON BEHALF OF THE APPELLANT

TABLE OF CONTENTS
1. LIST OF ABREVIATIONS………………………………………..
2. INDEX OF AUTHORITIES……………………………………….
2.1. STATUTES
2.2. DYNAMIC LINKS
2.3. CASES
3. STATEMENT OF JURISICTION……………………………….
4. STATEMENT OF FACTS…………………………………………
5. STATEMENT OF ISSUES………………………………………
1. WHETHER THE CURATIVE PETITION IS MAINATABLE BEFORE SC OR
NOT?
2. WHETHER THE SEC 497 Of IPC IS VIOLATION OF ARTICLE 14, 15, 21?
3. WHETHER THE SEC 497 OF IPC PROTECT THE SANCITY OF MARRIAGE
OR NOT?
6. SUMMARY OF ARGUMENTS……………………………………
7. ARGUMENTS ADVANCED………………………………………..
8. PRAYER……………………………………………………………
[MEMORIAL ON BEHALF OF APPELLANT]

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INDEX OF ABBREVIATIONS
i. § SECTION
ii. & AND
iii. AIR ALL INDIA REPORT
iv. Annex. ANNEXURE
v. Anr. ANOTHER
vi. Art. ARTICLE
vii. Cl. CLAUSE
viii. FIR FIRST INFORMATION REPORT
ix. Govt. GOVERNMENT
x. HC HIGH COURT
xi. Hon'ble HONORABLE
xii. i.e. THAT IS
xiii. No. NUMBER
xiv. Ors. OTHERS
xv. P. PAGE
xvi. SC SUPREME COURT

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STATUTES
1. Constitution of India, 1950

2. Indian Penal Code, 1860
3. Code of Criminal Procedure, 1974
BOOKS
1. D.D.BASU, Constitution of India, Lexis Nexis Butterworths, Wadhwa,

Nagpur.
2. H.M. SEERVAI, Constitutional Law of India: A Critical Commentary. [Delhi.
Universal Law Publishing Co. Ltd].
3. M P JAIN, Indian Constitutional Law, 1180, LexisNexis Butterworths Wadhwa,
Nagpur, 2010.
4. PROF. T. BHATTACHARYA, The Indian Penal Code, Central Law Agency,2018
5. RATANLAL & DHIRAJLAL, The Indian Penal Code, LexisNexis, 2019
6. BATUK LAL, the Code of Criminal Procedure, Central Law Agency. 2018
7. D.R.J.N.PANDEY, Constitutional Law of India in English 51th Edition.
8. RATANLAL & DHIRAJLAL, the Code of Criminal Procedure, LexisNexis, 2017

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DYNAMIC LINKS
1. www.barandbench.com
2. https://Indiankanoon.com
3. https://www.livelaw.in
4. www.manupatra.com
5. www.scconline.com
6. www.heinonline.org
7. www.westlawindia.com
8. www.economictimes.com
9. www.ipleaders.com
10. www.scobserver.in

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CASES
1. Rupa Ashok Hurra vs. Ashok Hurra & Anr on 10 April, 2002
2. Naresh Shridhar Mirajkar And Ors vs. State Of Maharashtra And Anr on 3 March, 1966
3. Suresh Kumar Koushal & Anr vs. Naz Foundation & Ors on 11 December, 2013
4. Yakub Abdul Razak Memon vs. State Of Maharashtra on 21 March, 2013
5. C.B.I vs. Keshub Mahindra on 11 May, 2011
6. Yusuf Abdul Aziz vs. The State Of Bombay on 10 March, 1954
7. Smt. Sowmithri Vishnu vs. Union of India & Anr on 27 May, 1985

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STATEMENT OF JURISDICTION
1371. Review of judgments or orders by the Supreme Court Subject to the provisions of any law
made by Parliament or any rules made under Article 1452, the Supreme Court shall have power to
review any judgment pronounced or order made by it.
1
Article 137 in The Constitution Of India 1949
137. Review of judgments or orders by the Supreme Court Subject to the provisions of any law made by Parliament
or any rules made under Article 145, the Supreme Court shall have power to review any judgment pronounced or
order made by it
2
145. Rules of Court, etc.
(1) Subject to the provisions of any law made by Parliament the Supreme Court may from time to time, with the
approval of the President, make rules for regulating generally the practice and procedure of the Court including
(a) rules as to the persons practising before the Court,
(b) rules as to the procedure for hearing appeals, and other matters pertaining to appeals including the time within
which appeals to the Court are to be entered;
(c) rules as to the proceedings in the Court for the enforcement of any of the rights conferred by Part III;
(cc) rules as to the proceedings in the Court under Article 139A;
(d) rules as to the entertainment of appeals under sub clause (c) of clause ( 1 ) of Article 134;
(e) any judgment pronounced or order made by the Court may be received and rules as to the conditions the procedure
for such review including the time within which applications to the Court for such review are to be entered;
(f) rules as to the costs of and incidental to any proceedings in the Court and as to the fees to be charged in respect of
proceeding therein;
(g) rules as to the granting of bail;
(h) rules as to stay of proceedings;
(i) rules providing for the summary determination of any appeal which appears to the Court to be frivolous or
vexatious or brought for the purpose of delay;
(j) rules as to the procedure for inquiries referred to in clause ( 1 ) of Article 317
(2) Subject to the provisions of clause ( 3 ), rules made under this article may fix the minimum number of Judges who
are to sit for any purpose, and may provide for the powers of single Judges and Division Courts
(3) The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial
question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article
143 shall be five: Provided that, where the Court hearing an appeal under any of the provisions of this chapter other
than Article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied
that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of
which is necessary for the disposal of the appeal, such Court shall refer the question for opinion to a Court constituted
as required by this clause for the purpose of deciding any case involving such a question and shall on receipt of the
opinion dispose of the appeal in conformity with such opinion
(4) No judgment shall be delivered by the Supreme Court save in open Court, and no report shall be made under
Article 143 save in accordance with an opinion also delivered in open Court
(5) No judgment and no such opinion shall be delivered by the Supreme Court save with the concurrence of a
majority of the Judges present at the hearing of the case, but nothing in this clause shall be deemed to prevent a Judge
who does not concur from delivering a dissenting judgment or opinion

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STATEMENT OF FACTS
I
In spite of having the best administrative machinery among all developing Nations, along with a
highly moral and dedicated public service independent India lacks behind in doing justice in many
aspects especially in the aspect of women expect for few revolutionary activities, the situation is
still more or less the same. Regardless of existing laws, sex determination, illegal abortion are
overpowering, girl are denied education, discrimination child marriage is still there so well as
there are many death cases because of dowry, rape, domestic violence, etc.
II
Filed Writ Petition (By NGO): - Women Freedom Union is one of the is one of the
Nongovernmental organization which work for which work for women empowerment and raise
its concern about discrimination against the women in section 497 of IPC which confer upon the
husband the right to prosecute adultery but it does not confirm any such right on the wife to
prosecute the husband who has committed adultery with another woman. Woman Freedom Union
filled the writ petition before The Honorable Supreme Court of India challenging constitutional
validity of section 4973 of the IPC section 1984 of the Code of Criminal Procedure being in
violation of article 145, 156 and 217 of Constitution of India
III
Dismissed the Writ Petition (By SC): - On 23.02.18 Honorable Supreme Court passed judgment
dismissing the writ petition. The Court held that the fact that a provision for hearing the wife is
not contained in Sec. 4978 cannot pronounce the section unconstitutional.
3
Section 497 in The Indian Penal Code
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.
4
5
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
6
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, 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
7
21. Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according
to procedure established by law
8
P a g e | vi
Filed Review Petition (By NGO): - Being aggrieved by the judgment Women Freedom Union
filed review petition on ground of judgment experience error the review petition was allowed by
Honorable Supreme Court the Sec. 4979 of the IPC and Sec. 19810 of the CrPC are
unconstitutional the Court held that the nature background historical background in which section
an abettor.
9
an abettor.
10
198. Prosecution for offences against marriage.
(1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860
) except upon a complaint made by some person aggrieved by the offence: Provided that-
(a) Where such person is under the age of eighteen years or is an idiot or a lunatic, or is from sickness or infirmity
unable to.
1. Added and Ins. by Act 43 of 1991, s. 2 (w. e. f. 1991).
make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to
appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf;
(b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions
which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to
make a complaint in person, some other person authorized by the husband in accordance with the provisions of sub-
section (4) may make a complaint on his behalf;
(c) where the person aggrieved by an offence punishable under 1 section 494 or section 495] of the Indian Penal Code
(45 of 1860) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter
or by her father’s or mother’s brother or sister 2, or, with the leave of the Court, by any other person related to her by
blood, marriage or adoption].
(2) For the purposes of subsection (1), no person other than the husband of the woman shall be deemed to be
aggrieved by any offence punishable under section 497 or section 498 of the said Code: Provided that in the absence
of the husband, some person who had care of the woman on his behalf at the time when such offence was committed
may, with the leave of the Court, make a complaint on his behalf.
(3) When in any case falling under clause (a) of the proviso to subsection (1), the complaint is sought to be made on
behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared
by a competent authority to be the guardian of the person of the minor or lunatic, and the Court is satisfied that there
is a guardian so appointed or declared, the Court shall, before granting the application for leave, cause notice to be
given to such guardian and give him a reasonable opportunity of being heard.
(4) The authorization referred to in clause (b) of the proviso to subsection (1), shall be in writing, shall be signed or
otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations
upon which the complaint is to be founded, shall be countersigned by his Commanding Officer, and shall be
accompanied by a certificate signed by that Officer to the effect that leave of 1 Subs. by Act 45 of 1978 , s. 17, for"
section 494" (w. e. f. 18- 12- 1978 ). 2 Ins. by s. 17, ibid. (w. e. f. 18- 12- 1978).
Absence for the purpose of making a complaint in person cannot for the time being be granted to the husband.
(5) Any document purporting to be such an authorization and complying with the provisions of subsection (4), and
any document purporting to be a certificate required by that subsection shall, unless the contrary is proved, be
presumed to be genuine and shall be received in evidence.
(6) No Court shall take cognizance of an offence under section 376 of the Indian Penal Code, where such offence
consists of sexual intercourse the a man with his own wife, the wife being under fifteen years of age, if more than one
year has elapsed from the date of the commission of the offence.
(7) The provisions of this section apply to the abetment of, or attempt to commit, an offence as they apply to the
offence.
Prosecution of offences under section 498A of the Indian Penal Code

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497 was frame is no longer needed in the contemporary society.
IV
Filed Curative Petition (By UOI): - Being aggrieved by the judgment of the Honorable Supreme
Court the Union of India preferred curative petition on the ground that all discrimination in favor
of women are saved by article 15(3)11 it says that there is no account of for instance where the
husband is quality and by declaring section 497 and record it will only promote it fully and
Immoral activity on the ground of equality as well as chaos in the society.
11

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ISSUES RAISED
1. WHETHER THE CURATIVE PETITION IS MAINTAINABLE BEFORE

SC OR NOT?
2. WHETHER THE SEC 49712 OF IPC IS VIOLATION OF ARTICLE 1413,

1514, 2115?
3. WHETHER THE SEC 49716 OF IPC PROTECT THE SANCITY OF

MARRIAGE OR NOT
12
an abettor.
13
14
any of them
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State
Scheduled Tribes
15
16
an abettor.

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SUMMARY OF ARGUMENTS
1. WHETHER THE CURATIVE PETITION IS MAINATABLE BEFORE SC

OR NOT?
The counsel on behalf of Union of India (hereinafter appellant) most humbly submits
that one can file curative petition under Article 13717 of Constitution.
2. WHETHER SEC 49718 OF IPC IS VIOLATION OF ARTICLE 1419, 1520, 2121?

3. Section 497 in The Indian Penal Code
4. 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.
17
order made by it
18
an abettor.
19
20
any of them
(b) the use of wells, tanks, bathing Ghats, roads and places of public resort maintained wholly or partly out of State
Scheduled Tribes
21

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1. WHETHER THE SEC 49722 OF IPC PROTECT THE SANCITY OF
MARRIAGE OR NOT?
The counsel on behalf of Union of India (hereinafter appellant) most humbly submits
that from the very beginning of the Rig Vedic age, marriage has been a well-established
institution, and the Aryan ideal of marriage was very high. Monogamy was the
approved rule, though polygamy existed to some extent. It is said that there is no real
evidence of existence of polyandry and matriarchy in Vedic times. Married life was a
strict bond and certain marriage offences like adultery etc. were viewed seriously
22
an abettor.

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ARGUMENTS ADVANCE
ISSUE 1: WHETHER THE CURATIVE PETITION IS MATAINABLE BEFORE SC

OR NOT?
Curative Petitions are such petitions that have seen a comparatively newer introduction in the field
of law in our country. Such petitions serve as the final and last option for the parties to get justice
as promised and guaranteed to each one of us through The Constitution of India. However, this
concept is relatively new and faced a lot of criticism by the Bench as being a concept that could
shake the trust of the public that the public at large bestows on them. The parameters within which
a curative petition may be allowed are narrow and therefore, such petitions when allowed are
treated to be rare.
Understanding the concept of Curative Petition
The concept was evolved by the Supreme Court of India in the matter of Rupa Ashok Hurra Vs.
Ashok Hurra and Anr.,23 where the issue raised pertained to “whether an aggrieved person is
entitled to any relief against the final judgment/order of the Supreme Court, after the dismissal of
a review petition?”[1].
The conflict arose between the parties on account of matrimonial discord, it was here that the
question regarding the validity of a decree of divorce reached the SC after the woman withdrew
the consent she had given to divorce by mutual consent.[2]
Jurisprudence behind Curative Petition
The objective behind allowing such a petition is only to minimize any abuse of the processes of
law and to cure gross miscarriage and lapses in the system of justice.
It is considered as the last and final option available for redressal of grievances.
It is generally not allowed to happen in an open court and is heard in the chamber of the judge.
It is a rare phenomenon that the same may be heard in an open court.
The aggrieved parties have the statutory right to appeals or civil reviews or revisions depending
on the nature of dispute and issues which escalate vertically to appellate/ revisional/ reviewing
forums.[3] The General jurisprudence of Appeals allows parties to use their chance in the highest
court of the country i.e., The Supreme Court of India by way of Writs, SLP’s or statutory appeals.
Once a decision is given by the Supreme Court of India the same may be considered final and
binding. The reasoning behind the same lies in the Latin maxim “interest Reipublicae Ut sit finis
23
Rupa Ashok Hurra vs. Ashok Hurra & Anr on 10 April, 2002
Page|1
litium” which means in the interest of society and public as a whole, any litigation must come to
an end considering the time taken for each litigation to reach a final outcome.
However, in the interest of justice, the founding fathers and mothers inserted Article 13724 of the
Constitution, which allows a review of orders passed by the Supreme Court.[4]
The question which came to the light was regarding any situation where the parties feel that even
after the revision petition, the justice has not been served. The question seemed logical and
practical as the main aim of the judiciary is to give proper meaning to the provisions of law and
any miscarriage of justice shall be harmful for the society at large.
Actus Curiae Neminem Gravabit
Keeping in mind that in the Apex Court, there lies no appeal against an order of its own which
means that there is no intra court appeal in the Supreme Court. It is also a well-settled principle
that an act of the court shall prejudice no one; the same is based on the Latin Maxim “actus curiae
neminem gravabit”. Considering that it would be an extremely strong discretionary power which
could only be exercised in rare cases.
Therefore, finding an answer to the above-stated question doesn’t only seem as a necessity but
also as an imperative step to prevent any lapses in the prevalent system of law. The question was
decided by introducing this interesting and new concept of “Curative Petitions”. It may be noted
that while introducing such a concept, it was mentioned that the basis of such petitions can only
be limited to the question of law and law only, no question of facts and numbers would be
entertained under such a petition.
Procedure for filing a Curative Petition
Before we jump onto the analysis of the landmark judgment given in Rupa Ashok Hurra Vs.
Ashok Hurra,25 it is important to note the procedural aspects laid down in the Handbook on
Practice and Procedure and Office Procedure of The Supreme Court of India.[5] The following
points under the handbook, explain in detail the procedure and requisites that shall be fulfilled for
filing a curative petition:
The Supreme Court shall have Inherent and Plenary Jurisdiction to hear such petitions. It is made
clear under Chapter 2 of the Handbook.
Order XLVIII of the Supreme Court Rules states when can a Curative Petition be filed which is
24
order made by it
25

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after the dismissal of a case in exercise of review jurisdiction under Article 137 of the
Constitution, by way of circulation, a curative petition can be filed under the inherent jurisdiction
of the Court to prevent abuse of its process and cure gross miscarriage of justice, as per the law
laid down in the case of Rupa Ashok Hurra vs. Ashok Hurra and Anr.26 It can be either a civil
petition or a criminal petition.
The handbook further adds on Page 36 that such a petition which is filed under Order XLVIII of
the rules shall be circulated to and heard by a bench of three senior most judges as well as the
judges who passed the judgment in question. Unless otherwise ordered by the court, such a
petition shall be disposed of by circulation without any oral arguments. But in case the Bench
before which such a curative petition is circulated deems just and proper, it may list the same for
hearing before the same Bench, as far as possible.
The affidavit which may accompany the curative petition shall clearly mention that the petition is
governed by the judgment of the Court as given in the case of Rupa Ashok Hurra Vs. Ashok
Hurra27.[7] Chapter X of the Handbook enlists how various petitions that are to be submitted
before the Apex Court are to be prepared. It shall be made following the below-listed grounds: It
shall be governed by the laws laid down under landmark judgment given in the matter of Rupa
Ashok Hurra vs. Ashok Hurra28.
It shall contain specifically that no new grounds have been taken and the grounds mentioned in
the petition had been taken in the application for review, which was dismissed by circulation.[8] It
shall always be accompanied with the following: A certificate of the senior advocate that the
petition meets the requirements delineated in the case mentioned;
A certified or authenticated copy of the judgment or order complained of; and
A certificate of the advocate-on-record to the effect that it is the first curative petition in the
impugned matter.
The handbook also states clearly that there is no limit within which a curative petition must be
filed; it also specifically mentions that it shall not be governed by the provisions of The
Limitations Act, 196329. However, it does mention that the same must be filed within a reasonable
time from the date of the impugned judgment.
In the third schedule of the handbook, the fee for such petitions finds mention. It states that the
same fee as was paid in the original proceedings shall be levied.
Analysis of the Judgment
26
27
28
29
The Limitation Act, 1963

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Rupa Ashok Hurra v. Ashok Hurra (2002)4 SCC 388; AIR 2002 SC 1771
In the judgment given by Hon’ble Justice Syed Shah Mohd. Quadri (for C.J., himself, Variava and
Patil, JJ.) a bare reading of Article 3230 of the Constitution of India led to the understanding that:
The Right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights of Fundamental Rights is guaranteed;
The Supreme Court is vested with the power to issue directions or orders or writs including writs
in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari whichever
may be appropriate for the enforcement of any of the rights conferred by Part III. Without
prejudice to the powers of the Supreme Court;
To empower by law any other court to exercise within the local limits of its jurisdiction all or any
of the powers exercisable by the Supreme Court under clause (2) of Article 3231;
The constitutional mandate embodied in clause (4) of the Article 3232 shall not be suspended
except as otherwise provided for by the Constitution of India.
High Court cannot issue Writs to other High Court
The bench having critically and crucially examined the nature and historical background of writs
in India as well as under the English Laws, it was noted that a “High Court cannot issue a writ to
another High Court, nor can one Bench of a High Court issue a writ to a different bench of the
same High Court”
Naresh Shridhar Mirajkar vs. State of Maharashtra33
Basing the view on a writ filed in the Supreme Court of India challenged an oral order of the High
Court of Bombay. It was held in this case that:
It was suggested that the High Courts might issue writs to this Court and to other High Courts and
one Judge or Bench in the High Court and the Supreme Court might issue a writ to another Judge
30
32. Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by
this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of
any of the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law
empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by
the Supreme Court under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution
31
32
The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution
33
Naresh Shridhar Mirajkar And Ors vs State Of Maharashtra And Anr on 3 March, 1966
Page|4
or Bench in the same Court. This is an erroneous assumption.
To begin with the High Courts cannot issue a writ to the Supreme Court because the writ goes
down and not up.
Similarly, a High Court cannot issue a writ to another High Court. The writ does not go to a court
placed on an equal footing in the matter of jurisdiction.
Where the county court exercised the powers of the High Court, the writ was held to be wrongly
issued to it. [9] After hearing both the parties in all fairness, the bench recorded that the
jurisdiction of this court under Article 3234 cannot be invoked and challenge a final
judgment/order passed by this court after exhausting the last resort provided under Article 13735
read with Order XL Rule 1 of the Supreme Court Rules, 1996.
Amicus Curiae
However, the Amicus Curiae suggested an adoption of an unusual unanimous approach to apply
to a situation where even after exhaustion of Article 13736 of the Constitution of India an
aggrieved party might be provided with an opportunity under inherent powers of this Court to
seek relief to avoid and prevent the miscarriage of justice because then it would render the party
helpless leaving no recourse to any other forum.
Facts presented by Mr Shanti Bhutan, Petitioner’s Counsel
Mr Shanti Bhutan, Petitioner’s Counsel, brought to the attention of the bench that the principle of
finality of the order of this Court had to be given a go-by and the case re-examined where the
orders were passed without jurisdiction or in violation of the principles of natural justice, violation
of any fundamental rights or where there has been gross injustice.[10] He further brought to the
attention of the court that under Order XLVII, Rule 6 of the Supreme Court Rules, the Hon’ble
Supreme Court of India had inherent jurisdiction and any cases falling under the above-mentioned
clauses came under their jurisdiction.
34
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by
this Part is guaranteed
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law
empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by
the Supreme Court under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution
35
order made by it.
36
order made by it.

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Reference was made by Mr Shanti Bhutan to Supreme Court Bar Association Vs. Union of
India[11] He relied on the judgment to show that such a power was exercised by this Court and
pleaded to fashion appropriate procedure for entertaining application to reconsider earlier
judgment of this Court at the instance of an aggrieved person to do justice to the parties.[12]
Various arguments by eminent lawyers like Mr. K.K Venugopal, Mr Shanti Bhutan, Mr Anil B.
Divan, Dr. Rajeev Dhawan, Mr.Ranjit Kumar etc. were put forward basing their submissions on
many landmark cases from Indian courts as well as from foreign courts including the ones
mentioned above.
It was further noted that a petitioner is entitled to relief ex debito justitiae if he establishes:
A violation of natural justice or where there has been an apprehension of biasness which
adversely affects the party or parties, the grounds mentioned in the petition should have been
taken in the Review Petition and it should have been dismissed by circulation. It shall also contain
a certification by a Senior Advocate confirming that the above-listed -requirements have been
fulfilled.
The bench was of the view that because the matter related to the re-examination of a final
judgment of this Court, though on limited ground, the curative petition has to be first circulated to
a Bench of the three senior-most Judges and the Judges who passed the judgment complained of,
if available.
It is only when a majority of the learned Judges on this Bench conclude that the matter needs
hearing that it should be listed before the same Bench (as far as possible) which may pass
appropriate orders. [13] However, if by the end of the case, it is found that the case was filed
without any merits and was deemed vexatious then, the court may also impose exemplary and
heavy costs on any such party or parties.
Curative Petitions ought to be treated as a rarity
Hon’ble Justice Banerjee went on to add his own submissions to the case stating that “curative
petitions ought to be treated as a rarity rather than regular and the appreciation of the Court shall
have to be upon proper circumspection having regard to the three basic features of our justice
delivery system to wit, the order being in contravention of the doctrine of natural justice or
without jurisdiction or in the event of there is even a likelihood of public confidence being shaken
by reason of the association or closeness of a judge with the subject matter in dispute”[14].
Held
In totality, a benevolent view was taken by the bench to ensure that there is no miscarriage of
justice. In view of the same, the judgment held that technical difficulties and apprehensions over
the reopening of cases had to give way to a final forum for removing errors in a judgment where
administration of justice may be affected.[15] However, the same may be subjected to the
fulfilment of requirements mentioned herein above. Such petitions may be treated as rarest of the
rare to maintain the trust and credibility, people of the country look up to from the Apex court of
the country.

Page|6
With this case, the concept of Curative Petition was brought to light
The judgment enlisted various requirements that would be needed to file such a petition, on the
same side of the coin Justice Banerjee, emphasized on treating these petitions under the umbrella
of rarest of the rare.
They stuck to the view that such matters shall not shake the interest and trust of the public at large
and shall act as a tool to prevent gross miscarriage of justice.
A good system of justice carries the burden of natural justice on its shoulders in a way that it
benefits the people of the country the most. It ensures that no injustice shall be caused to any
person and that decisions should never be subjected to prejudice of any sort.
As quoted by Victor Cousin “The universal and absolute law is that natural justice which cannot
be written down, but which appeals to the hearts of all”, the Hon’ble Supreme Court gave similar
connotation and introduced this concept which gave a new insight to the whole system of justice.
It is to be believed that a system which bases reliance both on the principles of law, as well as
natural justice, is a system for the good and benefit of the people.
Recent Judgments of Curative Petition
Naz Foundation Trust vs. Suresh Kumar Koushal and Ors37. [16]
The judgment was given by Hon’ble Justice(s) S. A Bobde and Ashok Bhushan clarified the
position that it may not be necessary to delve into the merits of the case presented by the bar at all
times. All that was noted was that since the issues were of considerable importance and public
interest, the curative petition was placed before the Chief Justice of India, to list before the
suitable bench.
Yakub Abdul Razak Memon vs. State of Maharashtra [17]38
Justice Kurian of the Supreme Court of India did not agree with the view taken by Justice Anil
Dave, he emphasized that Curative Petitions must be heard in accordance with the guidelines
mentioned in Rupa Ashok Hurra Vs. Ashok Hurra39.
Central Bureau of Investigation and Ors. Vs. Keshub Mahindra and Ors.40[18]
Even though the handbook makes it clear that Curative Petitions may not be governed by the
provisions of The Limitations Act, it does state that such a petition must be filed within a
reasonable time period. In the above-stated matter, the curative petition was dismissed stating that
no satisfactory reason was stated in the petition as to why it took 14 years for the petitioners to file
such a petition.
37
Suresh Kumar Koushal & Anr vs. Naz Foundation & Ors on 11 December, 2013
38
Yakub Abdul Razak Memon vs. State Of Maharashtra Th:Cbi ... on 21 March, 2013
39
Rupa Ashok Hurra v. Ashok Hurra (2002)4 SCC 388; AIR 2002 SC 1771
40
C.B.I vs. Keshub Mahindra on 11 May, 2011
Page|7
CONCLUSION
As much as we may want to believe, Judges whether of the Supreme Court, High Courts or
district courts, they aren’t gods. They are humans and humans are bound to make errors at some
level or the other. While the decisions of the lower courts can be reviewed, appealed against or
revised under various Articles of the Constitution, the apex court could not go against its own
order to make changes. However keeping in view that error is natural and may be committed by
any human, it was imperative to introduce a concept that would allow The Supreme Court of India
to review an order passed by them.
ISSUE 2: WHETHER THE SEC 497 OF IPC IS VIOLATION OF ARTICLE 14, 15, 21?
The argument that section 497 effects discrimination between men and women as it conferred
upon the husband the right to prosecute the adulterers but it does not confirm any right upon the
wife to prosecute the woman with whom her husband has committed adultery cannot be sustained
because such argument goes to the policy of the law and not to its constituent it unless while
implementing the policy any provision of the constitution is influenced in defining the offence of
adultery so as to restrict the class of offenders to men only no constitutional provision is influenced
section 497 cannot be struck down on the ground that it is desirable to delete it the challenge to
section 497 on ground that it does not confirm any right on the wife to prosecute the husband who
has committed adultery with another woman is also untenable who can prosecute whom for which
offence depends firstly on the definition of the of offence and secondly upon the restrictions placed
by the law of procedure on the right to prosecute the section does not envisage the prosecution of
the wife by the husband for adultery it provides expressly that the wife shall not be punishable even
as an ammeter no grievance can then be made that the section does not allow the wife to prosecute
the husband for adultery the offence of adultery as defined in section 497 is considered by the
legislature as an offence against the science city of the matrimonial home and act which is
committed by a man as it generally is there for those man who define the sanctity abroad within the
net of the law nearly because section 497 does not take in cases where the husband as sexual
relations with unmarried woman it would not become unconstitutional and under inclusive
definition is not necessarily discriminatory the law as it is does not refund under article 14 or article
15 law does not confirm freedom upon husbands to be licenses by gavvy lantern with unmarried
woman it only makes a specific kind of extra marks relationship and offence the relationship
between a man and a married woman the man alone being the offender unfaithful husband race or
perhaps invite a civil action by the wife for separation the legislature is entitled to deal with the evil
where it is felt and scene most a man seducing the wife of another although the repetition of a
married woman is adversely affected if a man is blessed to have committed adultery with her but the
argument that in absence of a provision in section 497 for hearing the women or impleading her as
necessary party to the prosecution that section would be violative of article 21 cannot be accepted if
the wire makes an application in the trial court that she should be heard before a finding is recorded
on the question of adultery the application would receive due consideration from the code the right
of hearing is a content of the principles of natural justice do not in all situation that right can be read

Page|8
in to the law in appropriate. In Yusuf Abdul Aziz v. State of Bombay,(1954)41 the Supreme Court
observed section 497 of IPC is not ultra vires under Article 14, 15 and 21 of the Constitution on the
ground that it is only the man, who is held liable for adultery and not the wife with whom adultery is
committed. The wife is saved from the purview of the section and is not punished as an abettor. The
Court further observed that sex is a reasonable and sound classification accepted by the constitution,
which provides that State can make special provisions for women and children vide article 15(3) of
the constitution. In Sowmithri Vishnu v. Union of India, (1985) 42the court observed that the consent
of the women in section 497 is of no relevance. The provisions of this section do not contravene any
fundamental right the classification between man and woman made by law is not bad. It is
commonly accepted that it is the man who is the seducer and not the woman. The position might
have undergone some change over the years, but it is for the legislature to consider whether section
497 of IPC should be amended appropriately so as to take note of the transformation which society
has undergone. The court further observed that the fact the provision for hearing the wife is not
contained in section 497 of IPC cannot make that section unconstitutional as violating Article 21 of
the Constitution. True, section 497 of IPC does not contain a specific provision for hearing the
married woman, but that does not justify the proposition that she is not entitled to be heard at the
trial, if she makes an application to the court to that effect.
ISSUE 3: WHETHER THE SEC 497 OF IPC PROTECT THE SANCITY OF MARRIAGE
OR NOT?
It is a well established and recognized fact that family as a social unit is regarded as the most
important institution for preserving the identity of individual and enabling one to live reasonably
protected life that will promote proper development of one's personality.
The sanctity and importance of the marriage has had been recognized among all the people the
world over. Therefore, legal regulation of marriage is a topic of vital importance in the promotion
of welfare of the society in its totality. Such regulation includes the laying down of certain norms
by law and prescribing of sanctions for the breach of those norms through appropriate legislation.
Since the sanctions for breach of legal norms are as important as norms themselves, therefore, the
study of these norms should be considered as a matter of great practical importance. Almost
during last five decades, matrimonial laws in India have acquired new dimensions, due to the new
enactments, subsequent amendments and progressive judicial decisions in the matrimonial laws.
But the criminal law aspect of such legislation has not received much attention. The relationship
of marriage, in addition to civil consequences, may attract criminal law in many of its aspects.
These aspects are proposed to be examined in the present study: It is important to point out the
theoretical importance of the study. One should see the link between civil law and the criminal
law. The sanctions for enforcing almost all obligations of civil law have to be traced to the
criminal law. It is through the criminal law that the coercive arm of the state shows its strength.
While marrying, the spouses undertake the duty of fidelity against each other. This duty, if
violated gives rise to appropriate reliefs, such as, restitution of conjugal rights, judicial separation,
divorce and so on. But an aspect of criminal law is also involved. If one spouse becomes disloyal
to the other spouse, law enforces the duty of fidelity by applying sanctions of the criminal law. In
this manner the criminal law and the matrimonial law have a link with each other. The anxiety of
law here is to prevent corrupt use of the institution of marriage. The offences relating to marriage
41
Yusuf Abdul Aziz vs. The State Of Bombay ... on 10 March, 1954
42
Smt. Sowmithri Vishnu vs. Union Of India & Anr on 27 May, 1985
Page|9
though small in number present problem of some difficulty. These problems are not purely legal,
they have their genesis in social practices. However, the present study focus on the legal aspects
only. The institution of marriage has existed in every society and with the help of this 'institution,
man has tried to tame and control his brutal instincts and impulses. In this attempt, there has been
a fair amount of success, but not full and complete success, because man has not always remained
satisfied with the company of his wife and has sometimes sought the pleasures of the flesh by
straying beyond the limits of the marital wedlock, with the result that institution like prostitution
and concubine have existed side by side with marriage since times immemorial. For the greater
good of the family and society, man has tolerated these institutions as necessary social evils. In
ancient India, concubinage and prostitution were not known. In the Rig-Veda Samhita, there is
reference to the Cere (Paramour) and his concubine. There were heavenly prostitutes also. Suite
often they were sent by the king of Gods (Indra) and other gods too to entice human being who
were engaged in the practice of austere penances for gaining knowledge of the supreme reality.1
from the very beginning of the Rig Vedic age, marriage has been a well established institution,
and the Aryan ideal of marriage was very high. Monogamy was the approved rule, though
polygamy existed to some extent. It is said that there is no real evidence of existence of polyandry
and matriarchy in Vedic times. Married life was a strict bond and certain marriage offences like
adultery etc were viewed seriously and for such an offence either of the concerned spouse could
be held guilty and punished. Dissolution of marriage was normally not an accepted concept. Men
were expected to honor women. Woman was associated in all religious offerings and rituals with
her husband.2 Homar Clarke, a renowned modern social scientist, thinks that the permanent
character of marriage alone can provide happiness which could be best secured by making the
marriage indissoluble as and when the parties know that they are bound together for life, they will
resolve their differences and disagreements and make all-out efforts to get along with each other.
If they are able to separate upon less serious grounds, they will make no such efforts and
immorality will result."3 In a nutshell, the sacramental doctrine of marriage did not admit either
pre–marital frauds and misrepresentations, or post=marital causes of whatever weight or gravity,
sometimes, including even non-consummation of the marriage.4 Modern sociologists compare a
broken marriage with a bankrupt business and promote its liquidation when the parties have
ceased to cohabit and have lived apart for a long period.5 Since the inception of matrimony, it has
been a moot question as to what should happen to those marriages which fail to fulfil even certain
basic or legitimate objects. The orthodox view, that a marriage must be preserved at any cost
drove the parties, particularly the women, to live under the same roof and somehow suffer the
misery of discord, come what may. Those were simple times. Social frustrations, social mobility
and urbanization were minimal. In modern times, this view no longer holds good. The unanimous
view of sociologists, law-makers, interpreters and modern writers is that when family
relationships are destroyed and the oppressive effects of this on the children and community are
intensified, it amounts to the degradation of marriage, and an insistence on its preservation
frustrates the purpose of marriage and becomes a device for punishment.6 The sanctity of the
institution of marriage, which is very basic to our society, must be preserved at all cost. With this
objective in mind, the Indian Penal Code, 1860 has enacted a separate chapter – on Offences
Relating to Marriage. It runs from section 493 to 498 and deals with offences relating to marriage,
deceitful marriage, bigamy, adultery etc. The objective of these sections is to maintain the sanctity
of marriage and punish acts and overtures that sap it yet such crimes, which are a blot on the holy
institution of marriage, are committed with impunity. The physical, emotional and economic
dependence of the wife on her husband and the forces of social pressures make her acquiesce to
her husband's extra-marital adventures or permitting him to have a second wife without
complaining against it.7 In September 1991 no less a person than former Chief Minister of
Gujarat Mr. Amrish Singh Choudhary committed the crime of bigamy. He married a second
woman while his marriage with the former wife existed but this crime instead of being
condemned was appreciated, the minister had the courage of conviction to accept the marriage in
P a g e | 10
public, he could have continued the affair clandestinely also, said his admires. Such is the
sycophancy in our country! Section 497, Indian Penal Code, 1860, defines adultery and tries to
prevent it by imposing rigorous punishment but the definition 'sexual intercourse without the
consent and connivance of the husband' along with no provision for hearing the version of the
wife, the real sufferer, results in grave injustice to her. There are reported cases where the
husbands connive with the culprits and consent for material gains or for deriving sadistic pleasure,
to their wife being abused physically. In an unreported case the husband found his wife in the
company of her paramour and by way of punishment he got her ravished by nine of his
companions while he looked on. Social compulsions and absence of support structures outside the
institution of marriage force many women to bear crimes relating to marriage with stoicism. Most
of the women do not even report the crime for fear of social stigma. They are diffident of getting
any relief through court action. The long and seemingly unending legal process keeps the women
at bay. Legal action makes deep dent in her economy and at the end of the case she finds herself
exactly where she was. She does not gain anything. Even simple cases like getting a meager
maintenance under section 125, Criminal Procedure Code, 1973, may take years. The 1983
Amendments in Criminal Law introduced section 498-A, Indian Penal Code, 1860 and added
section 113-A of the Evidence Act to arrest the increasing number of cases of bride burning and
harassment of wives for bringing insufficient dowry. The Dowry Prohibition Act, 1961 was also
amended. As a result of these changes the concept of dowry has become wider and cruelty by the
husband or relatives of the husband has become a crime, both physical and mental cruelty invites
penal action.9 In February, 1992 the Supreme Court, by its pragmatic interpretation of Section
498-A Indian Penal Code, 1860, has added another dimension to the crime of cruelty, now the
institution of vexatious proceedings in court with a view to harass the spouse is treated as mental
cruelty. This crime is cognizable and non-bail able. In cases of death of a wife under suspicious
circumstances, within seven years of marriage, 10 the husband and his relatives will have to prove
that they had no hand in killing the bride, if there is a history of torture and harassment of the
wife. The object of present study is to examine the offences relating to the institution of marriage
in India which are covered under chapter XX of the Indian Penal Code. Law relate such as
cohabitation caused by man deceitfully inducing a belief of lawful marriage (Section 493),
marrying again during lifetime of husband or wife (Section 494), concealment of former marriage
from person with whom subsequent marriage is contracted (Section 495), marriage ceremony
fraudulently gone through without lawful marriage (Section 496), adultery (Section 497), enticing
or taking away or detaining with criminal intent a married woman (section 498) and cruelty by
husband or relatives of husband (Chapter XXA Section 498-A) and to draw attentions to some of
its defects & deficiencies and anomalies. While doing so it becomes necessary to examine the
statutory framework as well as the latter case law

P a g e | 11
PRAYER
In the light of the issues raised, authorities cited and arguments advance, the appellant
humbly pleads before the Hon’ble Supreme Court to:
1. That's that this honorable court be pleased to direct amendment of section 497
of the Indian penal code 1860 as this section discriminate against women and
wallet part III of the Constitution of India
2. That is Honorable Court be pleased to direct amendment of section 198 ( 2 )of
the code of criminal procedure 1973 as this section is discriminatory against
women and violate by III of the Constitution of India
3. That this honorable court be pleased to pass any such other and father order as
the Honorable Court may deem fit and proper in the interest of Justice
And pass any other order which the Hon’ble Supreme Court may deem fit and proper in the
circumstances of the case.
All of which is most humbly submitted and respectfully prayed
(Counsel from the appellant)

P a g e | 12
P a g e | 13
P a g e | 14

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TEAM CODE: TC12

SHAMBHUNATH INSTITUTE OF LAW

BEFORE THE HON’BLE

(UNDER ARTICLE 137 OF THE CONSTITUTION OF INDIA)

UNION OF INDIA ..................................................................... APPELLANT

WOMEN FREEDOM UNION ............................................... RESPONDENT

MEMORANDUM ON BEHALF OF THE APPELLANT

2.2. DYNAMIC LINKS

[MEMORIAL ON BEHALF OF APPELLANT]

[MEMORIAL ON BEHALF OF APPELLANT]

1. Constitution of India, 1950

1. D.D.BASU, Constitution of India, Lexis Nexis Butterworths, Wadhwa,

[MEMORIAL ON BEHALF OF APPELLANT]

[MEMORIAL ON BEHALF OF APPELLANT]

4. Yakub Abdul Razak Memon vs. State Of Maharashtra on 21 March, 2013

5. C.B.I vs. Keshub Mahindra on 11 May, 2011

6. Yusuf Abdul Aziz vs. The State Of Bombay on 10 March, 1954

[MEMORIAL ON BEHALF OF APPELLANT]

[MEMORIAL ON BEHALF OF APPELLANT]

[MEMORIAL ON BEHALF OF APPELLANT]

[MEMORIAL ON BEHALF OF APPELLANT]

1. WHETHER THE CURATIVE PETITION IS MAINTAINABLE BEFORE

2. WHETHER THE SEC 49712 OF IPC IS VIOLATION OF ARTICLE 1413,

3. WHETHER THE SEC 49716 OF IPC PROTECT THE SANCITY OF

[MEMORIAL ON BEHALF OF APPELLANT]

1. WHETHER THE CURATIVE PETITION IS MAINATABLE BEFORE SC

2. WHETHER SEC 49718 OF IPC IS VIOLATION OF ARTICLE 1419, 1520, 2121?

[MEMORIAL ON BEHALF OF APPELLANT]

[MEMORIAL ON BEHALF OF APPELLANT]

ISSUE 1: WHETHER THE CURATIVE PETITION IS MATAINABLE BEFORE SC

Understanding the concept of Curative Petition

Jurisprudence behind Curative Petition

Actus Curiae Neminem Gravabit

Procedure for filing a Curative Petition

[MEMORIAL ON BEHALF OF APPELLANT]

[MEMORIAL ON BEHALF OF APPELLANT]

Naresh Shridhar Mirajkar vs. State of Maharashtra33

Facts presented by Mr Shanti Bhutan, Petitioner’s Counsel

[MEMORIAL ON BEHALF OF APPELLANT]

[MEMORIAL ON BEHALF OF APPELLANT]

Yakub Abdul Razak Memon vs. State of Maharashtra [17]38

[MEMORIAL ON BEHALF OF APPELLANT]

[MEMORIAL ON BEHALF OF APPELLANT]

All of which is most humbly submitted and respectfully prayed

(Counsel from the appellant)

[MEMORIAL ON BEHALF OF APPELLANT]

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