Judgment

BOSE, J. : The question in this case is whether S. 497, Penal Code, contravenes Article 14 and 15 of the Constitution.

2. The appellant is being prosecuted for adultery under S. 497, 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).

3. Under S. 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 S. 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.

4. The portion of Article 15 on the 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 woman ....."

The provisions complained of is a special provision and it is made fo