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Supreme Court of India

YUSUF ABDUL AZIZ versus THE STATE OF BOMBAY AND HUSSEINBHOY LALJEE.

Decided
10 March 1954
Judges listed
MEHR CHAND MAHAJAN (as the open data lists them; this may not name the whole bench)
Disposal
Dismissed

Citations

Official
[1954] 1 S.C.R. 930 · 1954 INSC 18
Also cited as
  • AIR 1954 SC 321 (6 citing judgments)

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The Court's text

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BosE J.-The question in this case is whether section 497 of the Indian Penal Code contravenes articles 14 and 15 of the. Constitution.

p. 931

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).

p. 931

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-

p. 931

"In · such case the wife shall not be punishable as an abettor." It is said that this offends articles 14 and J5. · -

p. 931

The ·portion of article 15 on which the appellant relies is this: '

p. 931

"The State shall not discriminate against any citizen on grounds only of. ......... sex."

p. 931

But what he overlook; is that that is subject to clause (3) which runs-

p. 931

"Nothing in this article shall . prevent the State from making 'any special provision' for 'jVOmen ..........

p. 931

The provision complained of is a special provision and it is made for women, therefore it is saved by clause (3).

p. 931

It was argued 'that clause (3) should be confined to provisions- which are beneficial to women and cannot be used td give them a licence to commit and abet crimes. We are . unable to read any sucli restriction into the clause; nor are we able to agree that a prov1S1on which prohibits punishment is tentamount to a licence to corp.mit the offence of which punishment has been prohibited.

pp. 931–932

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 discrimination in genera 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 clauk in section 497 of the Indian _Penal Code.

p. 932

The appellant is not a citizen GC 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.

p. 932

The appeal is dismissed.

p. 932

Appeal dismissed. Agent for respondent No. l : R. H. Dhebar.

p. 932