COVER PAGE:

TEAM : R1
1. GOKUL PRASAD.S ( HA15038)
2. YOGA RAJA.V (HA16143)
3. AJAY.C(HA15011)
 BEFORE SUPREME COURT OF MAGIC LAND

MEMORIAL ON BEHALF OF THE RESPONDENT.

IN THE MATTER OF:

Mr. SULTHAN ……………………………… PETITIONER

V.
Ms. SUFIA ………………………… RESPONDENT

(for divorce under section 2(8)f of the Dissolution of Muslim Marriage act,1939 and for
declaring polygamy as unconstitutional which is followed under Muslim Marriage act,1937
shariat laws)
 Most Respectfully submitted to the Hon’ble Judge in the Supreme Court of Magicland
Counsel Appearing on behalf of the Respondent.

MEMORANDUM ON BEHALF OF THE RESPONDENT

STATEMENT OF JURISDICTION:
 Counsels for respondent humbly submits this memorandum under Article 133 of the
constitution of magicland.
 Section 109 of the Civil Procedure Code, 1908 gives provisions for appeals to the
supreme court

STATEMENT OF ISSUES:
1. Whether Polygamy practiced by Mr. Sulthan amounts to a sinful form of Nikah halala?
2. Whether Polygamy practiced by Mr. Sulthan violates the provisions of the Constitution?
3. Whether Mr. Sulthan’s Refusal to have a child amounts to mental cruelty or not?
4. Whether Mr. Sulthan shall have more than one wife , if he has more than one wife what
treatment should he accord them?
SUMMARY OF ARGUMENTS:
1. Whether Polygamy practiced by Mr. Sulthan amounts to sinful form of Nikah halala?
It is humbly submitted by the Respondent that Polygamy is not considered a sin under Nikah
halala Provided it should make justice equitable to all the spouses. If he is not able to treat the
spouse in an equitable manner it amount to a sin under the holy Quran. Thus, Here Mr. Sulthan
despite being practiced polygamy which is legal but did not adhered to the injunctions of the
Quran So, it amounts to violation of the code of conduct of the Nikah halala. Therefore it is
valid Ground for divorce under sec 2(8)f of the dissolution of Muslim Marriage Act,1939.
2. Whether polygamy practiced by Mr. Sulthan violates the provisions of the Constitution of
Magicland?
The Respondent Humbly submits that practice of polygamy under the muslim religion alone is
subjected to a form of discrimination and also it violates the right to equality guaranteed by the
fundamental rights of the constitution and also right to live with dignity, thus it should be
considered by the hon’ble Supreme Court and the right to practice polygamy under Muslim
marriage act,1937 shariat laws should be abrogated and the Uniform Civil Code should Come
into light to protect the rights guaranteed by the Supreme Law of the Land.
3. Whether Mr. Sulthan’s Refusal to have a child amounts to mental Cruelty?
It is humbly submitted by the respondent that Refusal to have a child and treated her unequally
amounted to mental cruelty and according to quran, if a women is subjected to mental cruelty she
can get divorce which is stated in versus 4:3 of the holy Quran.
4. Whether Mr. Sulthan shall have more than one wife, if he has more than one wife what
kind of treatment should he accord to them?
According the Quran one can have more than one wife but he should treat all the spouses equally
and thereby he should not make any kind of cruelty to them in any means. If it is done it
amounts to sinful practice and hence subjected to get divorce.

ARGUMENTS ADVANCED:
1. Whether Polygamy practiced by Mr. Sulthan amounts to sinful form of Nikah halala?
Polygamy practiced by Mr.Sulthan amounted to mental cruelty. This was stated in Quran as
follows,
“And if you fear that you will not be fair in dealing with the orphans, then marry as many of
women as may be agreeable to you, two or three, or four; and if you fear you will not deal justly,
then marry only one or what your right hand possesses. That is the nearest way for you to avoid
injustice.1”
“According to Quran polygamy was not an sinful act unless it is just and fair. Hence the
legislation in India, prohibiting polygamy among Hidus yet allowing polygamy among muslims,
is not unconstitutional”
Sinful form of Nikah halala and polygamy, grossly injures the fundamental rights of married
Muslim women and offends Article 14 , Article 15, Article 21 of the constitution of India for
being against public order, morality and health.

2. Whether polygamy practiced by Mr. Sulthan violates the provisions of the Constitution
of Magicland?
Polygamy amounts to a ground for divorce as it violates the provisions of the constitution
and basic fundamental rights of the citizen.

1
Holy Quran
The Following Rights are violated by Mr. Sulthan on practicing polygamy and hence it is
requested to be held unconstitutional by the hon’ble Supreme Court.
 Article 14
Right to Equality
 Article 15
Prohibitionof discrimination on the grounds of religion, race, caste, sex or place of birth
 Article 15(3)
No laws made for the protection of women and child should be prevented by the state
 Article 21
Protection of life and personal liberty
 Article 25(2)
Freedom of conscience and free profession, practice and propagation of religion-
Subject to public morality, order, and health.
Article 16 of Universal Declaration of Human Rights

I would like to say that in twenty first century polygamy like barbaric practices against women
should be prevented. Thus it is not only the duty of legislature and judiciary but also under
article 51A(e) it is duty of all person to safeguard the dignity of women.
In the case of
Lata Singh Vs State of Uttar Pradesh
Lata Singh was an adult when she left her family home to be joined in matrimony with a man
from a lower caste. Her brothers, who were unhappy with the alliance, filed a missing person
report, and alleged Lata had been abducted. This resulted in the arrest of three people from her
husband's family.
In order to get the charges dropped, Lata Singh filed a petition which resulted in the landmark
judgment by the Supreme Court that allowed an adult woman the right to marry or live with
anyone of her choice.
The court further ordered that the police initiate criminal action against people who commit
violence against those who decide on inter-religious or inter-caste marriages.2
In the case of Goolrukh

2
Lalta Singh v state of uttar Pradesh 1970 AIR 1381
High Courts gave precedence to the consideration of a religious institution's rights and a
religious custom's "essential character" over the right to equality and non-discrimination – the
rights of women to be treated with dignity and with equal participation in society3.
Equal rights and dignity of women are subverted in upholding the right of religious institutions

3. Whether Mr. Sulthan’s Refusal to have a child amounts to mental Cruelty?

Doctrine of Mental Cruelty applies to this case,
The general notion of cruelty is very subjective depending on time, place, person and other
factors also. The legal concept of cruelty, which is not defined by statute is generally described
as act or conduct of such a nature as to have caused to life, limb or health physical or mental or
as to make a reasonable apprehension of such dange4r.
Cruelty in marital relationship is a course of conduct of one spouse which adversely
affecting the other, cruelty may be mental or physical intentional or unintentional. If it is
physical, it is an issue of fact and degree. If it is mental, the enquiry must begin as to the nature
of the cruel treatment of the mind of the spouse. Whether it caused reasonable apprehension that
it would be harmful or injurious to live with the other, is ultimately a matter of inference to be
drawn by taking into account the nature of the conduct and its effect on the complaining spouse.
On no other ground, however valid or reasonable it may be, the Muslim law allows the
Muslim women to snap the marital tie on her own accord. It is in order to relieve the Muslim
women from the miseries of misfit marriages, the Dissolution of Muslim Marriage Act 1939
came into existence. Both the customary obligations and statutory obligations are put forwarded
on a parallel plane before granting a divorce.
Dissolution of Muslim Marriage Act, 1939 –
Cruelty toward wife is also a ground for divorce. Cruelty is when the husband does any one of
the following
Attempts to force her to lead an immoral life.
Habitually assaults her or makes her life miserable by cruelty even if such conduct does not
amount to physical ill-treatment.
In the case of the Allahabad High Court inltawari v smt. Asghari
Observed that a Muslim has the legal right to take a second wife even during the subsistence of
the first marriage, but if he does so, and then seeks the assistance of the civil court to compel the
wife live with him against her wishes on pain of severe penalties including attachment of
properties, she is entitled to ask whether the court, as a court of equity, ought to compel her to

3
Goolrukh Case dec 7 2008 SCC
4
Shamsunnissa begum II M.I. 551
submit to co habitation with such a husband. In that case the circumstances in which his second
marriage took place are relevant and material in deciding whether his conduct in taking a second
wife was in itself an act of cruelty to the first5.
In the case of
Musammat Altafan vs Ibrahim on 10 July, 1923
The Allahabad High Court held that an impotent person is defined by the Muhammadan
Law as one who is unable to have connection with a woman, thought he has the natural organs
and a person who is able to have connection with an enjoyed woman but not with a virgin, or
with some woman but not with others, whether the disability be by reason of disease, or
weakness or original constitution, or advanced age or enchantment, is still to be accounted
impotent with respect to her with whom he cannot have connection, (Baillie's Muhammadan
Law, Vol. 1, p. 347). The Muhammadan Law provides that where such is the case and a woman
brings her husband before a Judge and sues him, demanding a separation on the ground of
impotency, and the fact whether the woman is an enjoyed woman or a virgin is disputed, the case
is to be adjourned for a year, and if, after the expiry of that year, the woman should allege that
she is still a virgin an inspection by women is to be ordered, and if they should declare her to be
an enjoyed woman, the word of her husband is to be taken with his oath; but if they should
declare her to be a virgin her word as to non-intercourse is to be received without oath. The
intention obviously is that, if such a claim is brought by a wife and is contested, an opportunity
should be given to the husband to show that the charge against him is unfounded or that the
alleged incpacity is removeable; and the woman should be required to appear again after a year
before the Judge in order to establish her claim to the relief she asks for (Ibid p. 348). If the
husband should consummate the marriage in the interval the petition of the wife requires to be
dismissed after the lapse of the period fixed by the Judge. If he, however, fail in his marital
obligation, the wife is entitled to a divorce (Ameer All's Muhammad an Law, Vol. 1, page 598,
and Tayabji's Muhmmadan Law6.
If he has more wives than one, does not treat her equitably in accordance with the injunctions of
the Quran it amounts to grounds of divorce.

" it is narrated by Muharib that, "The Prophet said: Allah did not make anything lawful
more abominable to Him than divorce." In the same book at Number 2173 as narrated by
Abdullah ibn Umar: "The Prophet said: Of all the lawful acts the most detestable to Allah is
divorce7."
Constitution Bench of the apex Court in the case of Daniel Laitifi vs. Union of India8. The apex
Court at paragraph 20 observed thus, "In interpreting the provisions where matrimonial

5
Inltawari v Smt. Asghari AIR 1960 AII . 684
6
Musammat Altafan vs Ibrahim SCC
7
In 'Sunan Abu-Dawud Book 12, No.2172
8
Daniel Laitifi vs Union of India , 2001 7 SCC 740
relationship is involved, we have to consider the social conditions prevalent in our society. In our
society, whether they belong to the majority or the minority group, what is apparent is that there
exists a great disparity in the matter of economic resourcefulness between a man and a woman.
Our society is male dominated, both economically and socially and women are assigned,
invariably, a dependent role, irrespective of the class of society to which she belongs. A woman
on her marriage very often, though highly educated, gives up her all other avocations and
entirely devotes herself to the welfare of the family, in particular she shares with her husband,
her emotions, sentiments, mind and body, and her investment in the marriage is her entire life - a
sacramental sacrifice of her individual self and is far too enormous to be measured in terms of
money. When a relationship of this nature breaks up, in what manner we could compensate her
so far as emotional fracture or loss of investment is concerned, there can be no answer. It is a
small solace to say that such a woman should be compensated in terms of money towards her
livelihood and such a relief which partakes basic human rights to secure gender and social justice
is universally recognised by persons belonging to all religions and it is difficult to perceive that
Muslim law intends to provide a different kind of responsibility by passing on the same to those
unconnected with the matrimonial life such as the heirs who were likely to inherit the property
from her or the Wakf Boards. Such an approach appears to us to be a kind of distortion of the
social facts. Solutions to such societal problems of universal magnitude pertaining to horizons of
basic human rights, culture, dignity and decency of life and dictates of necessity in the pursuit of
social justice should be invariably left to be decided on considerations other than religion or
religious faith or beliefs or national, sectarian, racial or communal constraints. "
It was also submitted that any modification of the Personal Law can only be made by
statute and further that Personal Law cannot be regarded as being violative of any of the rights
given in Part III of the Constitution.
Algeria allows polygamy with certain conditions – the previous wife or wives must consent
to their husband’s new marriage and a court must determine whether the man can meet the “legal
condition of equal justice” to all wives. In case her consent has not been secured, the previous
wife can initiate divorce proceedings.
4. Whether Mr. Sulthan shall have more than one wife, if he has more than one wife what
kind of treatment should he accord to them?
Nisa chapter number 4 versus number 39
Marry one or two or three or four you should provide justice to all of them in same manner.
If justice is not provided by the men who marries the women then the women can get khula
and husband is subjected to give compensation to the women.

9
Injunctions of Quran – versus 3 Chapter 4
PRAYER:
Wherefore in the light of the facts stated, issues raised, authorities cited and arguments advanced,
lthe Hon’ble Supreme Court may be pleased to adjudge and declare that;
1. The preferred appeal involves question of law and the divorce petition is to be granted.
2. The earlier decree should not be nullified as there was a proof of subjection to mental
cruelty is proved and also the hon’ble court sould grant the order making polygamy
unconstitutional for all the relegions without any discrimination.
3. The demand of the earlier decree given by the high court shall be upheld for the grant of
divorce under section 2(8)f of the dissolution of Muslim Marriage Act, 1939.
And pass any other order that the Hon’ble court may deem fit in the inters of justice, equity and
good conscience.
All of which is most humbly prayed.