IN THE HONOURABLE HIGH COURT OF MAHARASHTRA

INHERENT JURISDICTION

COMPLAINT CASE __________________

Mrs Sameena Momin,

(Appellant)

V.

Mr Amir Momin,

(Respondent)

MEMORANDUM ON BEHALF OF RESPONDANT

1
 TABLE OF CONTENTS

i. Index of authorities ……………………………………………………… 2

ii. Statements of facts .….…………………………………………………. 4
iii. Statements of issues..….…………………………………………… …. 5
iv. Summary of arguments ……………………………………………… 5
v. Arguments advanced ………………………………………..………… 6
vi. Prayer …………………………………………………………………………. 14

INDEX OF AUTHORITIES

BOOKS REFFERED
1) THE CODE OF CRIMINAL PROCEDURE, BY RATANLAL &
DHIRAJLAL (17th Ed)
2) INDIAN CONSTITUTIONAL LAW, BY M.P. JAIN (5TH Ed)
3) THE CONSTITUTIONAL LAW OF INDIA, BY N.H. JHABVALA
4) MULLA PRINCIPLES OF MAHOMEDAN LAW, BY SIR DINSHAW
FARDUNJI MULLA

2
CASES REFFERRED
A. A.S.Parveen Akhtar vs The Union Of India, 2002
B. Saleem Basha vs. Mumtaz Begam, 1998 Cri. L.J. 4782
C. Nazeer vs. Shemeema, 14th Jan 2002
D. Md. Khan v. Shahmai
E. Nurjahan v. Kazim
F. Syed Ziauddin v. Parvez Sultana
G. Aboobacker v. Mamu koya
H. Gul Mohd. Khan v. Hasina 
I. In Zubaida Begum v. Sardar Shah
J. Itwari v. Asghari

WEBSITES REFFERED:
i. https://www.thequint.com/news/india/triple-talaq-supreme-
court-hearings
ii. http://www.legalserviceindia.com/article/l393-Divorce-under-
Muslim-Law.html
iii. https://www.indiatoday.in/india/story/triple-talaq-verdict-
supreme-court-islam-divorce-1030721-2017-08-22
iv. https://thewire.in/170271/triple-talaq-judgement-sc-upheld-the-
supremacy-of-quran-within-the-constitution-of-india/
v. https://www.indiatoday.in/india/story/triple-talaq-triple-talaq-
verdict-divorce-in-islam-supreme-court-1030774-2017-08-22

3
 STATEMENT OF FACTS

1) Sameena Monin, 37-year-old post graduate in Economics, from

Khar, married Amir Momin on 17th June 2007.
2) Dower being agreed for Rs. 50,000 which was paid at the time of
solemnization of marriage.
3) From the onset of marriage there were strains, fights and
animosity in her marriage.
4) In 2008, she suffered a miscarriage. Later in 2009 and 2010 she
delivered two children, a girl and a boy.
5) Time and again issues and fights erupted between the two on
daily basis over domestic matters which in due course included.
6) On 20th December 2017, Amir and Sameena had an ugly fight on
reason being Amir not giving her and the kids quality time and
unnecessarily staying put in office.
7) This led to verbal alteration that enraged Amir and upon listening
to Sameena’s language and tone, in a fit of fury Amir lost his
temper and after repeated warning that failed to calm her down.
8) Amir pronounced Triple Talaq in an instant to her in the presence
of his parents and kids.
9) Now Sameena is staying with her parents and both her kids are
with her husband.Sameena has approached the Court seeking its
intervention in the said matter and questioning the legality of
triple talaq pronounced to her.
Although she alleged that was made to undergo as many as four
abortions after her son, by her husband and his mother who
forcibly administered her pills which ruined her health, the
mother of two said she longed to be with her husband for the
sake of well being of her kids.

4
 STATEMENT OF ISSUES
1) Is Triple Talaq unconstitutional and violative of Fundamental Right
to Equality before law under the constitution?
2) Is Triple Talaq gender driscriminatory?
3) Is Triple Talaq violative of article 21 of Indian constitution?
4) Should Triple Talaq being a personal Law be allowed to override
the constitution in relation to protection of rights of Muslim
Women in Marriage, Divorce, Maintainence and Custody of
children?

SUMMARY OF ARGUMENTS

1) Is Triple Talaq unconstitutional and violative of Fundamental Right

to Equality before law under the constitution?
The practice of triple talaq is protected by Article 25 and does not
contravene Article 14, 15 and 21.
Article 25 is a fundamental right and it cannot be set aside on
ground of judicial morality. International convention and practices
of other countries are of no avail as practice of triple talaq is
protected by Article 25

2) Is Triple Talaq gender discriminatory?

No, the practice of triple talaq or Talak-ul-biddat is only one form
of talaq as per Mahomedan law.
The divorce by wife can be categorized under three categories:
(i) Talaaq-i-tafweez
(ii) Lian
(iii) By Dissolution of Muslim Marriages Act 1939.

3) Is Triple Talaq violative of article 21 of Indian constitution?

Triple talaq is a matter of personal law of Sunni Muslims,
belonging to the Hanafi school. It (triple talaq) constitutes a
matter of their faith. It has been practiced by them, for at least
1400 years.
5
 The practice of triple talaq doesn’t breach the constraints
provided for under Article 21 of the Constitution

4) Should Triple Talaq being a personal Law be allowed to override

the constitution in relation to protection of rights of Muslim
Women in Marriage, Divorce, Maintainence and Custody of
children?
Religion is a matter of faith, and not of logic. It is not open to a
court to accept an egalitarian approach, over a practice which
constitutes an integral part of religion. The Constitution allows the
followers of every religion, to follow their beliefs and religious
traditions. The Constitution assures believers of all faiths, that
their way of life, is guaranteed, and would not be subjected to any
challenge, even though they may seem to others (-and even
rationalists, practicing the same faith) unacceptable, in today’s
world and age

ADVANCED ARGUMENTS

1) Is Triple Talaq unconstitutional and violative of Fundamental Right

to Equality before law under the constitution?
The women's wing of the All India Muslim Personal Law Board
(AIMPLB) has termed as "contradictory" and "fractured" the
judgement of the Supreme Court on triple talaq.
Any Judgement made on the matter of Triple Talak shall be an
interference in the Muslim Personal Law as right to religious
freedom is a fundamental right guaranteed under the
Constitution.
It could open doors for interference in the Muslim Personal Law.
Noting that the practice is already vanishing in the Muslim
community, the judgement will have very little impact on society.
Triple talaq does not always work against women. Many a time it
is an exit mechanism to relieve women from unsuccessful and
troublesome marriages.
6
 Talaq is a non-issue and divorce rate is the least in the Muslim
community. Muslims have divorce rate of only 0.5% whereas it is
1.64% in Hindu community.
The practice of triple talaq is protected by Article 25 and does not
contravene Article 14, 15 and 21.
Article 25 is a fundamental right and it cannot be set aside on
ground of judicial morality. International convention and practices
of other countries are of no avail as practice of triple talaq is
protected by Article 25

2) Is Triple Talaq gender discriminatory?

No, the practice of triple talaq or Talak-ul-biddat is only one form

of talaq as per Mahomedan law.
The divorce by wife can be categorized under three categories:
(i) Talaaq-i-tafweez
(ii) Lian
(iii) By Dissolution of Muslim Marriages Act 1939.

Talaaq-i-tafweez or delegated divorce is recognized among both,

the Shias and the Sunnis. The Muslim husband is free to delegate
his power of pronouncing divorce to his wife or any other person.
He may delegate the power absolutely or conditionally,
temporarily or permanently . A permanent delegation of power is
revocable but a temporary delegation of power is not. This
delegation must be made distinctly in favour of the person to
whom the power is delegated, and the purpose of delegation
must be clearly stated. The power of talaaq may be delegated to
his wife and as Faizee observes, “this form of delegated divorce is
perhaps the most potent weapon in the hands of a Muslim wife to
obtain freedom without the intervention of any court and is now
beginning to be fairly common in India”. 

This form of delegated divorce is usually stipulated in prenuptial

agreements. In Md. Khan v. Shahmai, under a prenuptial
agreement, a husband, who was a Khana Damad, undertook to
pay certain amount of marriage expenses incurred by the father-
in-law in the event of his leaving the house and conferred a power
to pronounce divorce on his wife. The husband left his father-in-
7
law’s house without paying the amount. The wife exercised the
right and divorced herself. It was held that it was a valid divorce in
the exercise of the power delegated to her. Delegation of power
may be made even in the post marriage agreements. Thus where
under an agreement it is stipulated that in the event of the
husband failing to pay her maintenance or taking a second wife,
the will have a right of pronouncing divorce on herself, such an
agreement is valid, and such conditions are reasonable and not
against public policy. It should be noted that even in the event of
contingency, whether or not the power is to be exercised, depend
upon the wife she may choose to exercise it or she may not. The
happening of the event of contingency does not result in
automatic divorce.

Lian:
If the husband levels false charges of unchastity or adultery
against his wife then this amounts to character assassination and
the wife has got the right to ask for divorce on these grounds.
Such a mode of divorce is called Lian. However, it is only a
voluntary and aggressive charge of adultery made by the husband
which, if false, would entitle the wife to get the wife to get the
decree of divorce on the ground of Lian. Where a wife hurts the
feelings of her husband with her behaviour and the husband hits
back an allegation of infidelity against her, then what the husband
says in response to the bad behaviour of the wife, cannot be used
by the wife as a false charge of adultery and no divorce is to be
granted under Lian. This was held in the case of Nurjahan v. Kazim
Ali by the Calcutta High Court.

Dissolution of Muslim Marriages Act 1939:

Qazi Mohammad Ahmad Kazmi had introduced a bill in the
Legislature regarding the issue on 17th April 1936. It however
became law on 17th March 1939 and thus stood the Dissolution
of Muslim Marriages Act 1939.

Section 2 of the Act runs thereunder:

A woman married under Muslim law shall be entitled to obtain a

8
decree for divorce for the dissolution of her marriage on any one
or more of the following grounds, namely:-

• That the whereabouts of the husband have not been known for
a period of four years: if the husband is missing for a period of
four years the wife may file a petition for the dissolution of her
marriage. The husband is deemed to be missing if the wife or any
such person, who is expected to have knowledge of the husband,
is unable to locate the husband

• That the husband has neglected or has failed to provide for her
maintenance for a period of two years: it is a legal obligation of
every husband to maintain his wife, and if he fails to do so, the
wife may seek divorce on this ground

• That the husband has been sentenced to imprisonment for a

period of seven years or upwards: the wife’s right of judicial
divorce on this ground begins from the date on which the
sentence becomes final

• That the husband has failed to perform, without reasonable

cause, his marital obligations for a period of three years: the Act
does define ‘marital obligations of the husband’. There are several
marital obligations of the husband under Muslim law. But for the
purpose of this clause husband’s failure to perform only those
conjugal obligations may be taken into account which are not
included in any of the clauses of Section 2 of this Act.

• That the husband was impotent at the time of the marriage and
continues to be so: for getting a decree of divorce on this ground,
the wife has to prove that the husband was impotent at the time
of the marriage and continues to be impotent till the filing of the
suit. Before passing a decree of divorce of divorce on this ground,
the court is bound to give to the husband one year to improve his
potency provided he makes an application for it. If the husband
does not give such application, the court shall pass the decree
without delay.
In Gul Mohd. Khan v. Hasina the wife filed a suit for dissolution of
marriage on the ground of impotency. The husband made an
9
application before the court seeking an order for proving his
potency. The court allowed him to prove his potency.

• If the husband has been insane for a period of two years or is

suffering from leprosy or a virulent veneral disease: the husband’s
insanity must be for two or more years immediately preceding the
presentation of the suit. But this act does not specify that the
unsoundness of mind must be curable or incurable.

• That she, having been given in marriage by her father or other

guardian before she attained the age of fifteen years, repudiated
the marriage before attaining the age of eighteen years, provided
that the marriage has not been consummated;

• 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
illtreatment, or
(b) Associates with women of ill-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 than one wives, does not treat her equitably in
accordance with the injunctions of the Holy Quran.

In Syed Ziauddin v. Parvez Sultana, Parvez Sultana was a science

graduate and she wanted to take admission in a college for
medical studies. She needed money for her studies. Syed
Ziaudddin promised to give her money provided she married him.
She did. Later she filed for divorce for non-fulfillment of promise
on the part of the husband. The court granted her divorce on the
ground of cruelty. Thus we see the court’s attitude of attributing a
wider meaning to the expression cruelty. In Zubaida Begum v.
Sardar Shah, a case from Lahore High Court, the husband sold the
ornaments of the wife with her consent. It was submitted that the
husband’s conduct does not amount to cruelty.

10
 In Aboobacker v. Mamu koya, the husband used to compel his
wife to put on a sari and see pictures in cinema. The wife refused
to do so because according to her beliefs this was against the
Islamic way of life. She sought divorce on the ground of mental
cruelty. The Kerela High Court held that the conduct of the
husband cannot be regarded as cruelty because mere departure
from the standards of suffocating orthodoxy does not constitute
un-Islamic behaviour.

In Itwari v. Asghari, the Allahabad High Court observed that Indian

Law does not recognize various types of cruelty such as ‘Muslim
cruelty’, ‘Hindu cruelty’ and so on, and that the test of cruelty is
based on universal and humanitarian standards; that is to say,
conduct of the husband which would cause such bodily or mental
pain as to endanger the wife’s safety or health.

3) Is Triple Talaq violative of article 21 of Indian constitution?

“The stance adopted by the Union of India is sufficient for us to
assume, that the Union of India supports the petitioners’ cause.
Unfortunately, the Union seeks at our hands, what truly falls in its
own.” Justice K.N. Shehar

Stating the judgement passed in A.S.Parveen Akhtar vs The Union

Of India, 2002

Counsel then referred to the decision of a learned single Judge of

this Court Sidickk, J., in the case of Saleem Basha vs. Mumtaz
Begam, 1998 Cri. L.J. 4782, wherein the learned Judge considered
the question as to whether talaq that had been pleaded in that
case was valid in Mohammedan law. After finding that no attempt
at reconciliation had preceded the triple talaq, such talaq having
been pronounced after the wife had brought a claim for
maintenance, after quoting with approval the observations of
Justice Beharul Islam of the Gauhati High Court in the case of
Jiauddin Ahmed vs. Anwara Begum, (1981) 1 GLR 358, the learned
Judge held that divorce under Muslim law can be held to have
been duly effected only when it does not violate the injunctions of
Quran. The learned Judge quoted with approval the observations
of Baharul Islam, that, "In my view the correct law of talaq as
11
 ordained by the Holy Quran is that talaq must be for a reasonable
cause and be preceded by attempts at reconciliation by two
relations, one each of the parties, is an essential condition
precedent to talaq. It is fallacy that a Muslim male enjoys, under
the Quranic law, unbridled authority to liquidate the marriage.
The Holy Quran expressly forbids a man to seek pretext for
divorcing his wife, so long as she remains faithful and obedient to
him."
Triple talaq is a matter of personal law of Sunni Muslims,
belonging to the Hanafi school. It (triple talaq) constitutes a
matter of their faith. It has been practiced by them, for at least
1400 years.
The practice of triple talaq doesn’t breach the constraints
provided for under Article 21 of the Constitution

4) Should Triple Talaq being a personal Law be allowed to override

the constitution in relation to protection of rights of Muslim
Women in Marriage, Divorce, Maintainence and Custody of
children?
Article 25 of the Constitution states,
Freedom of conscience and free profession, practice and
propagation of religion
(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 (b) of clause reference to
Hindus shall be construed as including a reference to persons
12
professing the Sikh, Jaina or Buddhist religion, and the reference
to Hindu religious institutions shall be construed accordingly

Religion is a matter of faith, and not of logic. It is not open to a

court to accept an egalitarian approach, over a practice which
constitutes an integral part of religion. The Constitution allows the
followers of every religion, to follow their beliefs and religious
traditions. The Constitution assures believers of all faiths, that
their way of life, is guaranteed, and would not be subjected to any
challenge, even though they may seem to others (-and even
rationalists, practicing the same faith) unacceptable, in today’s
world and age
In Conclusion I would like to draw attention towards the following
judgement.

The W.P.(C) 37436 of 2003 is filed by the husband alleging that

the triple talaq pronounced by him is not valid in accordance with
Islamic law. Therefore, proceedings initiated before the
Magistrate under section 3 of the Muslim Women (Protection of
Right on Divorce) Act 1986 and consequent order will have to be
set aside. This case W.P.(C) Nos.37436 of 2003, 25318 & 26373 of
2015 and 11438 of 2016 depicts the misuse of triple talaq, wife
appears to have accepted the talaq and moved the Magistrate
court on a folly created by husband. There are innumerable cases
as revealed from the empirical data referred in the research in
which neither party are aware of the procedure of talaqaccording
to the personal law. This Court under Article 226 of the
Constitution of India is not expected to go into the disputed
questions of fact. The entire exercise in this judgment is to alert
the State that justice has become elusive to the Muslim woman
and the remedy thereof lies in codification of law of divorce. This
court cannot grant any relief to the writ petitioner as the true
application of the law to be considered in a given facts is upon the
Court trying the matter. It is for the subordinate court to decide
whether there was application of Islamic law in effecting divorce
by triple talaq. Therefore, declining jurisdiction, this writ petition
is dismissed. W.P.(C) Nos.25318 & 26373 of 2015 and 11438 of
2016 In these writ petitions question of validity
of triple talaq does not arise. However this question was

13
considered in larger perspective for the reason that if court grant
any relief based on admission of the parties as to the repudiation
of marriage by triple talaaq, that would amount to recognition of
a tripletalaq effected not in accordance with law, as this court has
no mechanism to find out the manner in which talaq is effected.
The Court cannot become a party to a proceedings to recognise
an ineffective divorce in the guise of directions being given to
passport authorities to accept the divorce. The legal effect of such
W.P.(C) Nos.37436 of 2003, 25318 & 26373 of 2015 and 11438 of
2016 divorce has to be probed by a fact finding authority in
accordance with the true Islamic law. Stamp of approval being
given by the court by ordering passport authority to accept
divorce effected not in accordance with the law, will create an
impression that court transgressed its limits while directing a
public authority to honour an act which was done not in
accordance with law. Though in these writ petitions, considering
the urgency of the matters, this court granted interim order
directing the passport authorities to act upon the request of the
petitioners. Considering the large number of similar reliefs sought
before this court in various writ petitions, this court is of the view
that the issue can be resolved only through a larger remedy of
codification of law in the light of the discussion as above. In the
light of interim order, these writ petitions are disposed of.

PRAYER

In the light of the issues raised, arguments advanced and

authorities cited, may this Hon’ble Court be pleased to:
i. Quash down the Petition filed by Mrs. Sameena Momin
citing the invalidity of the talaq held.
ii. Pass such other order as the Hon’ble Court deems fit.

14