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SHRI.
KONERU LAKSHMAIAH MEMORIAL 2nd ALL INDIA MOOT COURT

COMPETITION – 2019
SHRI.KONERU LAKSHMAIAH MEMORIAL 2ND ALL INDIA MOOT COURT

COMPETITION - 2019
TEAM CODE:
KLMM022
BEFORE THE HON’BLE SUPREME COURT OF MAGIC LAND
IN THE MATTER OF
APPELLATE JURISDICTION
SLP NO :…………….OF 2019
MR. SULTHAN …
APPELLANT
VERSUS
MS. SUFIA …RESPONDENT
PETITION U/ART.136 OF THE CONSTITUTION OF INDIA, 1950
COUNSEL FOR THE RESPONDENT
MEMORANDUM ON BEHALF OF THE RESPONDENT
1
SHRI.KONERU LAKSHMAIAH MEMORIAL 2nd ALL INDIA MOOT COURT
TABLE OF CONTENTS
LIST OF ABBREVIATIONS…..…………………………………………………………….......
3
INDEX OF AUTHORITIES………………………………………………………………………
4
BOOKS, JOURNALS &

ARTICLES……………………………………………………………...4
INDEX OF LEGAL SOURCES…………………………………………………………………...

4
WEB SOURCES……………………………………………………………………………....... 4
INDEX OF
CASES……………………………………………………………………………….5
STATEMENT OF JURISDICTION……………………………………………………………….
6
STATEMENT OF FACTS……………………………………………………………………......
7
ISSUES RAISED…………………………………………………………………………….…..
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SUMMARY OF ARGUMENTS………………………………………………………………….
10
ARGUMENTS ADVANCED …………………………………………………………...……….

11
PRAYER…………..…………………………………………………………………………..22
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LIST OF ABBREVIATIONS
ABBREVIATION EXPANSION
¶ Paragraph Number
& And
AIR All India Reporter
Art. Article
ed. Edition
e.g. Exemplum gratii[For Example]
Etc. Et cetra [and others]
HC High Court
Hon’ble Honourable
i.e. id est(Latin)
IPR Intellectual property rights
LJ Law Journal
LR Law Report
Ltd. Limited
Ors. Others
Pg. Page Number
Pvt. Private.
S. No. Serial Number
3
SC Supreme Court.
SCC Supreme Court Cases.
v. Versus
INDEX OF AUTHORITIES
S. NO BOOKS REFERRED Constitution of India - MP Jain
1. CONSTITUTION OF INDIA - MP JAIN
2. INDIAN PENAL CODE – B.M.GANDHI
3. FAMILY LAW – I - PROF.KUSUM
INDEX OF LEGAL SOURCES
S. NO. TITLE OF LEGISLATION
1. CONSTITUTION OF INDIA, 1950
2. INDIAN PENAL CODE,1860.
3. THE DISSOLUTION OF MUSLIM MARRIAGE ACT,1939
4. THE MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT,1937
4
S.NO. WEB SOURCES

1. www.scconline.com
2. www.indiakanoon.org
3. www.manupatra.com
4. www.ncaer.org
5. www. lexisnexisacademic.com
INDEX OF CASE LAWS
S.NO. AUTHORITIES CITED
5
STATEMENT OF JURISDICTION
The Hon’ble Supreme Court of Magicland has the jurisdiction to entertain the
matter, filed under Article 136 of the Constitution of India, 1950.
6
STATEMENT OF FACTS
 Magicland is a Sovereign, Secular, Democratic Republic, having its own written

Constitution, which guaranteed some Fundamental Rights to all its citizens.
However, the personal laws applicable to the citizens varied depending upon the
religion to which one belongs. As far as Muslims are concerned, they are governed
by The Muslim Personal Law (Shariat) Application Act 1937.
 Ms. Sadia and Mr. Sulthan, both Muslims and citizens of Magicland got married in
2003 as per the customs of the Muslim personal law. Although they are leading a
happy married life, they could not procreate children, despite appropriate medical
treatment. Except for this fact, Mr. Sulthan and his parents looked after Ms. Sadia
very well. However, on the advice of parents, Mr. Sulthan married another lady by
name Ms. Sufia in 2010, with the consent of Ms. Sadia. Ms. Sufia was informed in
advance that she would be Mr. Sulthan’s second wife. Ms. Sufia accepted Mr.
Sulthan as her husband and their marriage was performed as per the customs of
Muslim personal law.
 In 2011, Ms. Sadia conceived, and her pregnancy was confirmed by doctors. Later,
Ms. Sadia gave birth to a baby boy. Mr. Sulthan was happy with the child and he
decided not to have any more children from both the wives. Ms. Sufia was not happy
7
with his decision and she insisted on having her own baby. But for this fact, Mr.
Sulthan was looking after both wives with same affection. However, Ms. Sufia filed
a petition in the Family Court in 2015 seeking divorce from Mr. Sulthan, under
section 2(viii)(f) of the Dissolution of the Muslim Marriage Act 1939. Her
contention was that by refusing to have children through her, her husband failed to
treat her “equitably in accordance with the instructions of Quran.”.
 The Family Court refused to grant divorce and observed that refusing to beget
children through her by her husband did not amount to failing to treat her equitably.
Ms. Sufia filed an appeal in the High Court and challenged the decision of the
Family Court, because it also amounted to mental cruelty. Ms. Sufia has alternatively
pleaded that her second marriage with Mr. Sulthan should be declared as null and
void, as polygamy is unconstitutional under Art 14, 15 and 21 of the Constitution.
She pleaded that the institution of polygamy violated her Fundamental rights.
 The High Court has observed that the Family Court was wrong in rejecting the
petition for divorce. Further, the High Court has also accepted her contention that
the system of polygamy violated the Fundamental Rights and therefore declared her
marriage as null and void.
 Mr. Sulthan filed an appeal before the Supreme Court of Magicland. He pleaded that
he had not caused any mental cruelty to his second wife and challenged the decision
of the High Court which declared polygamy as unconstitutional.
8
ISSUES RAISED
ISSUE [ I ]
 Whether the Appeal filed by Mr.Sulthan against the order of hon’ble high court of
Magicland is maintainable?
ISSUE[ II ]
 Whether polygamy is constitutionally valid or not ?
ISSUE [ III ]
 Whether the judgement in granting the dissolution of marriage by the high court is
valid or not?
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SUMMARY OF ARGUMENTS
ISSUE [ I ]
 Whether the Appeal filed by Mr.Sulthan against the order of hon’ble
high court of Magicland is maintainable?
ISSUE[ II ]
 Whether polygamy is constitutionally valid or not ?
It is humbly submitted before the Hon’ble Court that declaring the practice of polygamy as
unconstitutional comes under the purview of doctrine of constitutional morality and thus is
not violative of Article 25.Polygamy even if it has gained the force of a custom cannot be
allowed as it violates the fundamental principles enshrined in the Constitution.
ISSUE [ III ]
 Whether the judgement in granting the dissolution of marriage by the

high court is valid or not?
It is humbly submitted that refusal by Sulthan to have children with Sufia amounts to mental
cruelty and can be considered a valid ground for divorce under the Dissolution of Muslim
10
Marriages Act, 1939. The person who is obstructed, restrained or compelled will certainly
develop an apprehension in mind that it would be mentally harmful or injurious to live under
the matrimonial bond. This will definitely amount to mental cruelty.
ARGUMENTS ADVANCED
ISSUE [ I ] : Whether the Appeal filed by Mr.Sulthan against the order of hon’ble high
court of Magicland is maintainable?
136. Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its
discretion, grant special leave to appeal from any judgment, decree,
determination, sentence or order in any cause or matter passed or made by
any court or tribunal in the territory of India
(2) Nothing in clause ( 1 ) shall apply to any judgment, determination,
sentence or order passed or made by any court or tribunal constituted by or
under any law relating to the Armed Forces.
ISSUE[II]: Whether polygamy is constitutionally valid or not ?
It is humbly submitted before this Hon’ble Court that polygamy amounts to discrimination
and is violative of Articles 14, 15 and 21.
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2.1 Constitutional validity of polygamy:
Polygamy is the fact or custom of being married to more than one person at the same time
which has been permitted to the Muslim community under the Muslim Personal Law
(Shariat) Application Act, 1937.
In Prakash and Others v. Phulavati and Others 1,the Supreme Court held that laws dealing
with marriage and succession are not a part of religion, the law has to change with time, and
international covenants and treaties could be referred to examine validity and reasonableness
of a provision.
A perusal of the decisions in Prakash v. Phulavati, Javed and Others v. State of Haryana
and Others,2 and Smt. Sarla Mudgal, President, Kalyani and Others v. Union of India and
Others,3 illustrates that the practice of polygamy has been recognised as injurious to public
morals and it can be superseded by the State just as it can prohibit human sacrifice or the
practice of sati.
In Khursheed Ahmad Khan v. State of Uttar Pradesh and Others 4, the Court propounded
the view that practices permitted or not prohibited by a religion do not become a religious
practice or a positive tenet of the religion, since a practice does not acquire the sanction of
religion merely because it is permitted.
It is submitted that the polygamy provision, in so far as it seeks to recognise and validate
nikah halala, is void and unconstitutional as such practices are not only repugnant to the basic
1
Prakash and Others v. Phulavati and Others, 2016 (2) SCC 36.
2
Javed and Others v. State of Haryana and Others, 2003 (8) SCC 369.
3
Smt. Sarla Mudgal, President, Kalyani and Others v. Union of India and Others, (1995) 3 SCC 635.
4
Khursheed Ahmad Khan v. State of Uttar Pradesh and Others, (2015) 8 SCC 439.
12
dignityof a woman as an individual but also violative of the fundamental rights guaranteed
under Articles 145, 156, 217 of the Constitution.
2.2 Gender Discrimination:
It is submitted that the Legislature has failed to ensure the dignity and equality of women in
general and Muslim women in particular especially concerning matters of marriage, divorce
and succession. Despite varied observations for the past few decades, Uniform Civil Code
remains an elusive Constitutional goal that the Courts have fairly refrained from enforcing
through directions and the Legislature has dispassionately ignored except by way of
delivering hollow words.
In Justice K.S. Puttaswamy and another v. Union of India 8 and others the Supreme Court
explained the ambit of Article 21, the Court noted: “Article 21 is the heart and soul of the
Indian Constitution, which speaks of the rights to life and personal liberty. Right to life is one
of the basic fundamental rights and not even the State has the authority to violate or take
away that right. Article 21 takes all those aspects of life which go to make a person's life
meaningful. Article 21 protects the dignity of human life, one's personal autonomy, one's
right to privacy, etc. Right to dignity has been recognized to be an essential part of the right
to life and accrues to all persons on account of being humans.
It is submitted that laws dealing with marriage and succession are not part of religion and the
law has to change with time, which finds support from the views expressed by in John
Vallamattom Case9 and Prakash v. Phulavati.
5
14. The State shall not deny to any person equality before the law or the equal protection of the laws within the
territory of India.
6
15. (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place
of birth or any of them. (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of
them, be subject to any disability, liability, restriction or condition with regard to— (a) access to shops, public
restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and
places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general
public. (3) Nothing in this article shall prevent the State from making any special provision for women and
children. 1[(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any
special provision for the advancement of any socially and educationally backward classes of citizens or for the
Scheduled Castes and the Scheduled Tribes.] 2[(5) Nothing in this article or in sub-clause (g) of clause (1) of
article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially
and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as
such special provisions relate to their admission to educational institutions including private educational
institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in
clause (1) of article 30.]
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21. No person shall be deprived of his life or personal liberty except according to procedure established by
law.
8
Justice K.S. Puttaswamy and another v. Union of India, (2017) 10 SCC 1.
9
John Vallamattom , WP (Civil) 242 of 1997.
13
Therefore it is submitted that the issue of gender discrimination against Muslim women under
Muslim personal laws, specifically the lack of safeguards against second marriage by a
Muslim husband during currency of first marriage notwithstanding the guarantees of the
Constitution, needs to be examined.
2.3 Test on Constitutional Mandate of Equality:
The husband has a right to unilaterally walk out of marriage - even a monogamous marriage.
At least when faced with the ignominy of polygamy, the wife must on her assertion be able to
secure an order through court to revoke or quit such a marriage. Her assertion need not be
tested on any other touch stone. It is, of course, true that Section 2 (viii)(f) of the Act does not
recognize a polygamous marriage by itself as a ground for divorce; but read reasonably, the
provision concedes to the wife a right to walk out of marriage if she is satisfied that she has
not been treated equitably in such marriage.
The Respondents place reliance on the decision in Itwari v. Asghari10. The learned single
Judge has observed that:"A Muslim has the undisputed legal right to take as many as four
wives at a time. But it does not follow that Muslim Law in India gives no right to the first
wife against a husband who takes a second wife, or that this law renders her helpless when
faced with the prospect of sharing her husband's consortium with another woman."
The decision of a Division Bench of this Court in K. Muhamma Latheef v. Nishath11may
also be relevant in this regard. Unambiguous observations were made that:"If during the
subsistence of a valid marriage the husband had remarried another, necessarily, that will be a
mental cruelty towards the first wife, even though that is not the cruelty alleged in the
petition. Merely because the appellant was willing to cohabit with the respondent while
continuing the second marriage, there was no reason to court out the respondent, denying her
a decree for dissolution of marriage."
2.4 Constitutional validity of the Muslim Personal Law (Shariat) Application Act, 1937:
It is submitted that Muslim Personal Law (Shariat) Application Act, 1937, by providing for
the application of Muslim personal law in matters relating to marriage where the parties are
Muslims, conveys a wrong impression that the law sanctions the practices of halala and
10
Itwari v. Asghari, AIR 1960 Allahabad 684.
11
K. Muhamma Latheef v. Nishath, 2003 (1) KLT 877.
14
polygamy, which is grossly injurious to the fundamental rights of the married Muslim women
and offends Articles 14, 15, 21 and 25 of the Constitution.
Muslim Personal Law Application Act, 1937, Section 2 reads: “Notwithstanding any custom
or usage to the contrary, in all questions (save questions relating to agricultural land)
regarding intestate succession, special property of females, including personal properly
inherited or obtained under contract or gift or any other provision of Personal Law. Marriage,
dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance,
dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and
charitable institutions and charitable and religious endowments) the rule of decision in cases
where the parties are Muslims shall be the Muslim Personal Law.”
In State of Bombay v. Narasu Appa Mali 12, wherein the constitutional validity of the
Bombay Prevention of Hindu Bigamous Marriages Act, 1946 was challenged on the ground
of violation of Articles 14, 15 and 25 of the Constitution, a Division Bench held that a sharp
distinction must be drawn between religious faith and belief and religious practices, since the
State only protects religious faith and belief while religious practices that run counter to
public order, morality or health or a policy of social welfare must give way to the good of the
people of the State.
It is accordingly submitted that the Muslim Personal Law (Shariat) Application Act, 1937,
which is subject to the Constitution, is invalid in so far as it seeks to recognise and validate
the practices of nikah halala and polygamy.
2.5 Convention on Elimination of all forms of Discrimination Against Women

(CEDAW)
The Convention on Elimination of all forms of Discrimination Against Women (CEDAW) is

an international treaty which regulates any form of discrimination against women. It is
humbly submitted that Magicland is a party to this Convention and it is the obligation of the
State to eradicate polygamy based on customs or traditions and further the State should
refrain from invoking the plea of custom or tradition to avoid their obligation.Article 5(a) of
the CEDAW explicitly places an obligation on all State Parties to “modify the social and
cultural patterns of conduct of men and women, with a view to achieving the elimination of
prejudices and customary and all other practices which are based on the idea of the inferiority
12
State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84.
15
or the superiority of either of the sexes or on stereotyped roles for men and women.”In its
General Recommendation No. 21 (1994), the Committee on the Elimination of
Discrimination against Women elaborated on equality in marriage and family relations, and
observed that polygamous marriages contravene a woman’s right to equality with men, and
can have very serious emotional and financial ramifications for her and her dependents. The
Committee noted “with concern”despite their Constitutions guaranteeing the right to equality,
some States parties continued to permit polygamous marriages in accordance with personal or
customary law. This, as per the Committee, violated the constitutional rights of women, as
also Article 5(a),CEDAW.
The polygamy practice not only violates CEDAW but also other international conventions
such as Universal Declaration on Human Rights, 1948, International Covenant on Civil
and Political Rights, 1976 and The UN Declaration on the Elimination of All Forms of
Intolerance and of Discrimination Based on Religion or Belief, 1981.
In Vishaka and others v. State of Rajasthan and ors.13 , the court held that international
conventions must be followed when there is a void in the domestic law or when there is any
inconsistency in the norms for construing the domestic law.
Therefore, it is humbly submitted before the Hon’ble Court that the allowance of polygamy
amounts to discrimination against the female gender and is violative of Convention on
Elimination of all forms of Discrimination Against Women (CEDAW) and Magicland being
a party of the convention must hold such practice invalid. It is submitted that in view of the
changes in the laws in various Islamic countries that either ban or restrict polygamy, as well
as the development of international laws, this Hon’ble Court is the sole hope not only for
Muslim women but also for the Muslim community which has been suffering on account of
personal laws that are in violation of the fundamental rights guaranteed by the Constitution.
The freedom of conscience and free profession, practice and propagation of religion
guaranteed by Article 2514 of the Constitution is not absolute and, in terms of Article 25(1), is
13
Vishaka v. State of Rajasthan, AIR 1997 SC 3011.
14
25. (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are
equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. (2)
Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated
with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious
institutions of a public character to all classes and sections of Hindus. Explanation I.—The wearing and carrying
of kirpans shall be deemed to be included in the profession of the Sikh religion. Explanation II.—In sub-clause
16
“subject to public order, morality and health and to the other provisions of this Part”.It is
humbly submitted that declaring polygamy as unconstitutional does not infringes the right to
freedom provided under Article 25 of the Constitution.
2.6 Test of ‘Essential Religious Practice’:

The test of ‘Essential Religious Practices’ was coined by the Supreme Court in the year 1954
in the case of The Commissioner, Hindu Religious Endowments, Madras v. Shri
Lakshmindar Thirtha Swamiyar of Shri Shirur Mutt.15 The Court, in this case, mentioned
for the first time that what constitutes an essential part of a religion will be ascertained with
reference to the tenets and doctrines of that religion itself. It has to be ascertained positively
whether the said practice is, in pith and substance, really the essence of the said religion to
determine whether a right ought to be granted for carrying out such essential practices.
The role of essential practices to a particular religion has been well demonstrated by Lord
Halsbury in Free Church of Scotland v. Overtoun 16 wherein it was observed: "In the absence
of conformity to essentials, the denomination would not be an entity cemented into solidity
by harmonious uniformity of opinion, it would be a mere incongruous heap of, as it were,
grains of sand, thrown together without being united, each of these intellectual and isolated
grains differing from every other, and the whole forming a but nominally united while really
unconnected mass; fraught with nothing but internal dissimilitude, and mutual and reciprocal
contradiction and dissension."
In the case of Mohd. Hanif Quareshi v State of Bihar17, wherein it was claimed by the
petitioner that the sacrifice of the cows during Bakr- id was an essential part of his religion
but this argument was rejected by the Courtas the sacrifice of cow on the Bakri-Id day was
not an essential part of the Mohammedan religion and hence could be prohibited by State
under clause (2) (a) of Article 25.
Similarly in the present case, it is submitted that although polygamy is permitted under
Muslim personal law, it is not an essential part of the religion and thus can be prohibited
under Article 25 of the Constitution. Such a practice, even if it has gained the force of a
(b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the
Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.
15
The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Thirtha Swamiyar of Shri
Shirur Mutt, 1954 AIR 282.
16
Free Church of Scotland v. Overtoun , [1904] AC 515.
17
Mohd. Hanif Quareshi v State of Bihar, AIR 1958 SC 731.
17
custom cannot be allowed as it violates the fundamental principles enshrined in the

Constitution.
2.7 Doctrine of Harmonious Construction:
It is submitted that a harmoniousreading of Part III of the Constitution clarifies that the
freedom of conscience and free profession, practice and propagation of religion guaranteed
by Article 25 is subject to the fundamental rights guaranteed by Articles 14, 15 and 21. In
fact, Article 25 clearly recognises this interpretation by making the right guaranteed by it
subject not only to other provisions of Part III of the Constitution but also to public order,
morality and health.
In Manoj Narula v. Union of India 18, wherein it was observed that the Constitution of India
is a living instrument and the principle of constitutional morality essentially means to bow
down to the norms of the Constitution and to not act in a manner which is arbitrary or
violative of the rule of law.
In this context, it is humbly submitted that the traditions and conventions have to grow to
sustain the value of such morality and the democratic values can survive and become
successful when the people at large are strictly guided by the constitutional parameters, since
commitment to the Constitution is a facet of constitutional morality.
2.8 Doctrine of Constitutional Morality:
The doctrine of Constitutional morality has been enshrined and defined in the following
cases. In Government of NCT of Delhi v. Union of India and others 19Court observed that
Constitutional morality in its strictest sense of the term implies strict and complete adherence
to the constitutional principles as enshrined in various segments of the document. When a
country is endowed with a Constitution, there is an accompanying promise which stipulates
that every member of the country right from its citizens to the high constitutional
functionaries must idolize the constitutional fundamentals. This duty imposed by the
Constitution stems from the fact that the Constitution is the indispensable base that functions
as the guiding force to protect and ensure that the democratic setup promised to the citizenry
remains unperturbed.
18
Manoj Narula v. Union of India, 2014 (9) SCC 1.
19
Government of NCT of Delhi v. Union of India and others, C.A. No. 2357 of 2017.
18
Elaborating further, in Navtej Singh Johar and others v. Union of India and others,20 Court
observed that the concept of constitutional morality is not limited to the mere observance of
the core principles of constitutionalism as the magnitude and sweep of constitutional morality
is not confined to the provisions and literal text which a Constitution contains, rather it
embraces within itself virtues of a wide magnitude such as that of ushering a pluralistic and
inclusive society, while at the same time adhering to the other principles of constitutionalism.
It is further submitted that all parties have an obligation to exercise due diligence by taking
all necessary steps to enable every person to enjoy their rights. Constitutional and
International obligations make it a necessity for the State to root out discrimination relating to
polygamy based on customs which is discriminatory in nature.
Therefore it is humbly submitted before the Hon’ble Court that declaring the practice of
polygamy as unconstitutional comes under the purview of doctrine of constitutional morality
and thus is not violative of Article 25.
ISSUE[III] : Whether the judgement in granting the dissolution of marriage by the high
court is valid or not?
It is humbly submitted that the refusal by Sulthan to have children with Sufia amounts to
mental cruelty and can be considered a valid ground for divorce.
3.1 Mental cruelty as a ground for divorce:
The concept of cruelty has been dealt with in Halsbury's Laws of England21 as under;
"The general rule in all cases of cruelty is that the entire matrimonial relationship must be
considered, and that rule is of special value when the cruelty consists not of violent acts but
of injurious reproaches, complaints, accusations or taunts. In cases where no violence is
averred, it is undesirable to consider judicial pronouncements with a view to creating certain
categories of acts or conduct as having or lacking the nature or quality which renders them
20
Navtej Singh Johar and others v. Union of India and others, W.P. (Crl.) No. 76 of 2016.
21
Halsbury's Laws of England , Vol.13, 4th Edition, Para 1269.
19
capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the
conduct rather than its nature which is of paramount importance in assessing a complaint of
cruelty.”
The existence of mental cruelty must be determined in accordance with the facts and
circumstances of each case. Section 2(viii)22 of the Dissolution of Muslim Marriages Act,
1939 provides that certain cases of cruelty can be considered as a valid ground for divorce. It
is not limited to instances of physical cruelty but includes those of mental cruelty as well.
In Sm. Pancho v. Ram Prasad23, Roy, J expounded the concept of 'legal cruelty' and
observed that, in order to establish legal cruelty, it is not necessary that physical violence
should be used. Continuous ill-treatment, cessation of marital intercourse, studied neglect,
indifference on the part of the husband, and an assertion on the part of the husband that the
wife is unchaste are all factors which may undermine the health of a wife. Thus, if mental
cruelty has been established, it is a valid ground for divorce.
3.2 Intention of parties with respect to cruelty:
In the present case, Sulthan has subjected Sufia to mental cruelty by refusal to beget a child.
Although he has treated Sufia in a respectable manner, he has treated her cruelly by refusing
to let her conceive a child with him. The intention to treat her cruelly, whether present or not,
is not a relevant consideration.
To buttress this view, the Respondents have placed reliance on the decision pronounced by
the Supreme Court in Shobha Rani vs Madhukar Reddi 24. It was held that the nature of
cruelty need not be intentional, deliberate or willful. The nature would differ from case to
case. In such cases, even if the act of cruelty is established, the intention to commit cannot
be established. The aggrieved party may not get relief. The absence of intention should not
make any difference in the case, if by ordinary sense in human affairs, the act complained of
could otherwise be regarded as cruelty. The relief to the party cannot be denied on the ground
that there has been no deliberate or wilful ill-treatment.
22
2(viii). Grounds for decree for dissolution of marriage: That the husband treats her with cruelty, that is to
say, ? (a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not
amount to physical ill-treatment, or (b) associates with women of evil repute or leads an infamous life, or (c)
attempts to force her to lead an immoral life, or (d) disposes of her property or prevents her exercising her legal
rights over it, or (e) obstructs her in the observance of her religious profession or practice, or (f) if he has more
wives than one, does not treat her equitably in accordance with the injunctions of the Qoran;
23
Sm. Pancho v. Ram Prasad, AIR 1956 All 41.
24
Shobha Rani vs Madhukar Reddi, 1988 AIR 121.
20
3.3 Refusal to beget children amounts to mental cruelty
It is humbly submitted that the refusal by Sulthan to beget children with Sufia amounts to
mental cruelty.
In Bravery vs. Bravery25, it was held that the cardinal objectives and concepts in our social
system with respect to marriage and the institution of family is to have a solemn union of two
persons, the man and the woman, to built up a family consisting of offspring. If one of the
spouses makes any compulsion or restraint from being conceived against the cherished wish
of giving birth to child, is against the normal instincts of life. It will cause diminution to the
desire of spouses in marital life. The person who is obstructed, restrained or compelled will
certainly develop an apprehension in mind that it would be mentally harmful or injurious to
live under the matrimonial bond. This will definitely amount to mental cruelty.
In Knott vs. Knott26, it was held that a refusal by the husband to allow his wife to have a child
and the practice of withholding full sexual intercourse (by practicing of 'coitus
interruptus') amounts to cruelty. It is held that, for a man deliberately and without good
reasons permanently denying a wife, who has a normal maternal instinct, without providing
any fair opportunity of having even a single child, is itself cruelty.
In Samar Ghosh vs Jaya Ghosh27, the Supreme Court laid down numerous instances
amounting to mental cruelty. The judgment also provides that the enumerated instances are
not exhaustive but illustrative in nature. One of the instances is the unilateral decision of
either husband or wife after marriage not to have child from the marriage. Such a decision
will amount to mental cruelty.
Thus it is humbly submitted that refusal by Sulthan to have children with Sufia amounts to
mental cruelty and can be considered a valid ground for divorce under the Dissolution of
Muslim Marriages Act, 1939.
25
Bravery v. Bravery, 1954 (3) All Er 59.
26
Knott vs. Knott, 1955 (2) All ER 305.
27
Samar Ghosh vs Jaya Ghosh, 2007 (4) SCC 511.
21
PRAYER
WHEREFORE, in light of the issues raised, arguments advanced and authorities cited, it is
humbly prayed before this Hon’ble Court to order that:
 The special leave appeal filed by the appellant against the order of High court is not
maintainable.
 Declare Polygamy as Unconstitutional.
 The dissolution of marriage judgement declared by the High Court is valid.
And to pass any other order, which this Hon’ble Court may deem fit in light of justice, equity
and good conscience.
For this act of Kindness, the Respondent shall duty bound forever pray.
22
23

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SHRI.

KONERU LAKSHMAIAH MEMORIAL 2nd ALL INDIA MOOT COURT

SHRI.KONERU LAKSHMAIAH MEMORIAL 2ND ALL INDIA MOOT COURT

BEFORE THE HON’BLE SUPREME COURT OF MAGIC LAND

SLP NO :…………….OF 2019

MS. SUFIA …RESPONDENT

PETITION U/ART.136 OF THE CONSTITUTION OF INDIA, 1950

COUNSEL FOR THE RESPONDENT

MEMORANDUM ON BEHALF OF THE RESPONDENT

BOOKS, JOURNALS &

INDEX OF LEGAL SOURCES…………………………………………………………………...

ARGUMENTS ADVANCED …………………………………………………………...……….

S. No. Serial Number

S. NO BOOKS REFERRED Constitution of India - MP Jain

1. CONSTITUTION OF INDIA - MP JAIN

2. INDIAN PENAL CODE – B.M.GANDHI

3. FAMILY LAW – I - PROF.KUSUM

INDEX OF LEGAL SOURCES

S. NO. TITLE OF LEGISLATION

1. CONSTITUTION OF INDIA, 1950

2. INDIAN PENAL CODE,1860.

3. THE DISSOLUTION OF MUSLIM MARRIAGE ACT,1939

4. THE MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT,1937

S.NO. WEB SOURCES

INDEX OF CASE LAWS

S.NO. AUTHORITIES CITED

 Magicland is a Sovereign, Secular, Democratic Republic, having its own written

 Whether polygamy is constitutionally valid or not ?

high court of Magicland is maintainable?

 Whether polygamy is constitutionally valid or not ?

 Whether the judgement in granting the dissolution of marriage by the

136. Special leave to appeal by the Supreme Court

ISSUE[II]: Whether polygamy is constitutionally valid or not ?

2.1 Constitutional validity of polygamy:

2.2 Gender Discrimination:

2.3 Test on Constitutional Mandate of Equality:

2.5 Convention on Elimination of all forms of Discrimination Against Women

The Convention on Elimination of all forms of Discrimination Against Women (CEDAW) is

2.6 Test of ‘Essential Religious Practice’:

custom cannot be allowed as it violates the fundamental principles enshrined in the

2.7 Doctrine of Harmonious Construction:

2.8 Doctrine of Constitutional Morality:

3.1 Mental cruelty as a ground for divorce:

3.2 Intention of parties with respect to cruelty:

3.3 Refusal to beget children amounts to mental cruelty

humbly prayed before this Hon’ble Court to order that:

 Declare Polygamy as Unconstitutional.

 The dissolution of marriage judgement declared by the High Court is valid.

and good conscience.

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