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PETITIONER: YUSUF ABDUL AZIZ

       Vs.

RESPONDENT: THE STATE OF BOMBAY ANDHUSSEINBHOY LALJEE.

DATE OF JUDGMENT: 10/03/1954

BENCH: BOSE, VIVIAN BENCH: BOSE, VIVIAN MAHAJAN, MEHAR CHAND (CJ) MUKHERJEA, B.K. DAS, SUDHI RANJAN HASAN, GHULAM

CITATION:  1954 AIR  321            1954 SCR  930  CITATOR INFO :  RF         1985 SC1618  (10)

ACT:  Constitution  of India, arts. 14 and 15-Section 497  of  the  Indian Penal Code (Act XLV of 1860)-Whether ultra vires the  Constitution.

HEADNOTE: Held, that s. 497 of the Indian Penal Code does not of  lend arts. 14 and 15 of the Constitution.

JUDGMENT: CRIMINAL APPELLANTE JURLSDICTION: Case No. 349 of 1951. Appeal  under article 132 (1) of the Constitution  of  India from  the Judgment and Order dated the 26th June,  1951,  of the  High  Court of Judicature,at Bombay (Chagla C.  J.  and Gajendragadkar J.) in Criminal Application No. 345 of 1951. A.A.  Peerbhoy,  Jindra  Lal  and  I.  N.  Shroff  for   the appellant. C. K. Daphtary, Solicitor General for India (Porus A. Mehta, with them) for respondent No. 1. 931 J.B. Dadachanji and Rajinder Narain for respondent No. 2. 1954.  March 10.  The Judgment of the Court was delivered by Bose J.-The question in this case is whether section 497  of the Indian Penal Code contravenes articles 14 and 15 of  the Constitution. The appellant is being prosecuted for adultery under section 497 of the Indian Penal Code.  As soon as the complaint  was filed  he applied to the High Court of Bombay  to  determine the  constitutional question mentioned above  under  article 228 of the Constitution.  The High Court decided against him but granted him a certificate under articles 132 (1) and 134 (1) (c). Under  section  497  the offence of  adultery  can  only  be committed  by a man  but in the absence of any provision  to the  contrary the woman would be punishable as  an  abettor.

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The last sentence in section 497 prohibits this.  It runs- "In  such  case  the  wife shall not  be  punishable  as  an abettor." It is said that this offends articles 14 and 15. The  portion of article 15 on which the appellant relies  is this: "The  State  shall not discriminate against any  citizen  on grounds only of............... sex." But what he overlooks is that is subject to clause (3) which runs "Nothing in this article shall prevent the State from making any special provision for women.......... " The provision complained of is a special provision and it is made for women, therefore it is saved by clause (3). It  was  argued  that  clause  (3)  should  be  confined  to provisions which are beneficial to women and cannot be  used to  give them a licence to commit and abet crimes.   We  are unable  to read any such restriction into the clause  ;  nor are we able to agree that a 932 provision  which  prohibits punishment is tantamount  ,to  a licence  to commit the offence of which punishment has  been prohibited. Article  14  is  general and must be  read  with  the  other provisions  which set out the ambit of  fundamental  rights. Sex  is a sound classification and although there can be  no discriminate   in general on that ground,  the  Constitution itself provides for special provisions in the case of  women and  children.  The two articles read together validate  the impugned clause in section 497 of the Indian Penal Code. The appellant is not a citizen of India.  It was argued that he could not invoke articles 14 and 15 for that reason.  The High  Court held otherwise.  It is not necessary for  us  to decide  this question in view of our decision on  the  other issue. The appeal is dismissed. Appeal dismissed. Agent for respondent No.1 :  R. H. Dhebar. 933