Yusuf Abdul Aziz Vs. The State of
Bombay and Husseinbhoy Laljee  INSC 18 (10 March 1954)
BOSE, VIVIAN MAHAJAN, MEHAR CHAND (CJ)
DAS, SUDHI RANJAN HASAN, GHULAM
CITATION: 1954 AIR 321 1954 SCR 930
CITATOR INFO :
RF 1985 SC1618 (10)
Constitution of India, arts. 14 and
15-Section 497 of the Indian Penal Code (Act XLV of 1860)-Whether ultra vires
Held, that s. 497 of the Indian Penal Code
does not of lend arts. 14 and 15 of the Constitution.
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
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)
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.
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.
Agent for respondent No.1 : R. H. Dhebar.