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

Ayyar J.

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

v.

1954 THE STATE OF BOMBAY AND

March HUSSEINBHOY LALJEE.

10.

[MEHR CHAND MAHAJAN C. J., 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 J.) 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 C. K. Daphtary, Solicitor-General for India (Porus A. Mehta, with them) for respondent No. 1.

, . '/. B. Dadachanji and Rajinder Narain for res-1954 pondent No. 2. Yusef Abdul. Aziz

1954. March 10. The Judgment of the . Court was V• The State ef delivered by Bombay and' Husstinbhoy BosE J.-The question in this case is whether sec-Laljee. tion 497 of the Indian Penal Code contravenes articles Bose]. 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 Constitu-tion. 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 punish-able 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 '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 ·-.- -··

1954 prov1S1on which prohibits punishment is tentamount to a licence to corp.mit the offence of which punish-rusuf Ahdul 4.ziz

"· ment has been prohibited.

The State of Article 14 is general and must be read with the Bombay and Husseir,bhoy other provisions which set out the ambit of funda-

l.Aljee.' mental rights. Sex is a sound classification and al- \ Bo"]. though 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.