Yusuf Abdul Aziz v. the State of Bombay and Husseinbhoy Laljee.

Judgment

Sri Sri Sri Kishore Chandra Singh Deo Babu Ganesh Prasad Bhagat and Others. Venkatarama Ayyar J. March 10. [1954] representatives who are prosecuting them. The property mortgaged is an estate governed by the Madras Impartible Estates Act II of 1904. The plaintiffs alleged in their plaint that the mortgage was binding on the estate under section 4 of the Act. Issue 6 was framed with reference to this allegation, and the finding of the trial court was that it was not binding on the estate. But on appeal, the High Court held that the questior, could not be gone into in a suit laid against the mortgagor. It accordingly discharged the finding, an<'1 left the question open to be determined in other Jud appropriate proceedings. In view of this, we direct that the parties do bear their own costs in this court. Appeals dismissed YUSUF ABDUL AZIZ THE STATE OF BOMBAY AND HUSSEINBHOY LALJEE. [MEHR CHAND MAHAJAN MuKHERJEA, S. R. DAs, VIVIAN BosE and GHULAM HASAN. JT.] Constitution of India, arts.

14 and 15-Section 497 of the Indian Penal Code (Act XLV of 1860)-Whether ultra vires the Constitution. Held, that s. 497 of the Indian Penal Code does not offend arts. 14 and 15 of the Constitution. CRIMINAL APPELLATE JuR1sn1cnoN : Case No. 349 of 195 l. 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 m Criminal Application No. 345 of 1951. A. A· Peerbhoy, Jindra Lal and I. N. Shroff for the appellant. M. C. Setalvad, Attorney-General for India, and K. Daphtary, Solicitor-General for India (Porus A. Mehta, with them) for respondent No. 1. I S.C.R. , . '/. 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. 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 J5. 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 overlook; is that that is subject to clause (3) which runs- "Nothing in this article shall . prevent the State from making 'any special provision' for 'jVOmen .......... " The provision complained of is a special provision and it is made for women, therefore it is saved by clause (3). It was argued provisionswhich be used td give crimes. We are into the clause; 'that clause (3) should be confined to are beneficial to women and cannot them a licence to commit and abet . unable to read any sucli restriction nor are we able to agree that a Yusef Abdul. Aziz The State ef Bombay and' Husstinbhoy Laljee. Bose]. rusuf Ahdul 4.ziz The State of Bombay and Husseir,bhoy l.Aljee.' \ Bo"]. [1954] prov1S1on which prohibits punishment is tentamount to a licence to corp.mit 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 discrimination in genera 1 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. 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. The appeal is dismissed. Appeal dismissed. Agent for respondent No. l : R. H. Dhebar. GIPN-52-96 S.C. India/59-25-I0-61-l,OOO.