Yusuf Abdul Aziz vs The State Of Bombay Andhusseinbhoy

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: 349 of 1951

Decision Date: 10 March, 1954

Coram: Vivian Bose, Mehar Chand Mahajan, B.K. Mukherjea, Ghulam Hasan

In this matter, the Supreme Court of India delivered its judgment on ten March 1954 on an appeal filed by Yusuf Abdul Aziz against the State of Bombay and the respondent Andhusseinbhoy Laljee. The case was heard by a bench consisting of Justice Vivian Bose, Chief Justice Mehar Chand Mahajan, Justice B K Mukherjea and Justice Ghulam Hasan. The citation for the decision appears in the 1954 Annual Report of the Indian Supreme Court at page 321 and also as 1954 SCR 930. The appeal, recorded as Criminal Appeal No 349 of 1951, was taken under article 132 (1) of the Constitution of India from the judgment and order dated twenty‑six June 1951 rendered by the High Court of Bombay, then presided over by Chief Justice Chagla and Justice Gajendragadkar, in Criminal Application No 345 of 1951. Counsel for the appellant comprised A A Peerbhoy, Jindra Lal and I N Shroff, while the Solicitor General of India, C K Daphtary, assisted by Porus A Mehta, represented the State, and J B Dadachanji together with Rajinder Narain appeared for the second respondent. The central issue before the Court was whether section 497 of the Indian Penal Code, which defines the offence of adultery, was inconsistent with articles 14 and 15 of the Constitution. The appellant had been charged under that provision and, immediately after the complaint was filed, petitioned the Bombay High Court for a declaration that the provision violated constitutional guarantees under article 228. The High Court rejected the constitutional claim but nevertheless issued a certificate of fitness for appeal under articles 132 (1) and 134 (1) (c). Section 497 stipulates that only a man may be guilty of adultery, while the accompanying clause expressly excludes the wife from being punished as an abettor, stating: “In such case the wife shall not be punishable as an abettor.” The appellant contended that this classification infringed article 15, which declares that the State shall not discriminate against any citizen on the basis of sex, and also violated article 14. The appellant, however, neglected to consider the exception contained in clause (3) of article 15, which permits the State to make special provisions for women. The Court observed that the provision in section 497 is a special measure intended for women and therefore falls within the permissible scope of clause (3). Arguments were raised that clause (3) should be limited to measures that are beneficial to women and should not authorize a licence to commit or abet crimes; the Court found no textual basis for imposing such a limitation. Consequently, the Court held that section 497 of the Indian Penal Code does not offend articles 14 or 15 of the Constitution, and it dismissed the appeal.

The Court stated that it could not accept the proposition that a statutory provision which bars punishment for a conduct effectively creates a licence to commit the prohibited conduct. Article fourteen, being a general guarantee, must be interpreted in conjunction with the other constitutional provisions that delineate the scope of fundamental rights. The classification on the basis of sex is deemed a legitimate category, and although the Constitution prohibits discrimination on that ground in general, it simultaneously authorizes special measures for women and children. Accordingly, when Articles fourteen and fifteen are read together, they support the constitutionality of the challenged provision contained in section four hundred ninety‑seven of the Indian Penal Code. The petitioner in this case was not a citizen of India, a circumstance that was raised to argue that he could not rely upon the guarantees of Articles fourteen and fifteen. The High Court, however, had concluded that non‑citizens are permitted to invoke those constitutional protections, and the present Court found it unnecessary to revisit that issue in light of its determination on the principal question. Consequently, the appeal was dismissed, and the order of dismissal was entered. The agent representing respondent number one was identified as R. H. Dhebar.