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Team Code: TC 30
ASMA … PETITIONER
VERSUS
WITH
MUKHTAR … PETITIONER
VERSUS
PRAYER ---------------------------------------------------------------------------------------17
& And
Anr. Another
Art. Article
Edn. Edition
Hon’ble Honourable
i.e. That is
v. Versus
Vol. Volume
A. Table of Cases
7 Riaz Fatma v. Mohammed Sharif I (2007) DMC 26; 135 (2006) DLT 14
205
9 Nur Ali (Md) v. Thambal Sana Bibi 2007 (1) GLT 508 14
C. Journals Referred
D. Database Referred
1 www.judis.nic.in
2 www.lexisnexis.com
3 www.manupatrafast.com
4 www.scconline.com
E. Legal Dictionary
F. Statutes Referred
The Petitioner has approached this Hon‟ble Court invoking Article 32 of the Constitution of
Pindiana.
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs
in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this
Part.”
The Petitioner has approached this Hon‟ble Court invoking Article 136 of the Constitution of
Pindiana.
(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.”
1. Mukhtar and Asma are Sunni and Shia Muslim respectively by religion and both are
resident of State of Chind, Pindiana. Asma was very ambitious girl who completed
her education from a very prestigious college of London. She is very inclined towards
the teachings of Quran and follows the traditions firmly hence she is a religious
Muslim female whereas Mukhtar is a man who is influenced with the modern culture
of the society and influenced by the western culture and has a habit of occasional
drinking.
2. They happened to work together in a multinational company where they fell in love
and with mutual consent got married under Shariat Law. Asma was performing well
in her career and could foresee a high position in the company. Therefore she decided
not to have kids for few years of marriage. Mukhtar being an adamant person started
forcing Asma to have a baby.
3. Mukhtar picked up frequent quarrels with his wife and was habituated to drinking
regularly. The disputes between the two kept escalating as Mukhtar resorted to
forcible sex with Asma besides beating her frequently.
4. Despite such regular assaults Asma tried to reconcile the matter and reported the
incident to her In-laws and parents. On the persuasion of parents and In-laws Mukhtar
agreed to stop assaulting her.
5. After few months of good behavior Mukhtar resumed forcing Asma for having a kid.
Later in 2016 Asma got pregnant and Mukhtar was very happy on hearing the news
but Aasma didn‟t want to have the child as she was at the peak of her career. She
could not afford to apply for leave at this juncture and thereby forgo her promotion to
a higher post in the organization. Therefore she decided to go for an abortion.
6. After knowing about her decision, Mukhtar and Asma‟s in-laws along with her
parents convinced her to leave the job and to have the child. But unfortunately due to
their negligence, Asma suffered a miscarriage and Mukhtar blamed her for the
miscarriage as he thought that Asma herself was liable and deliberately created the
situation that resulted in miscarriage. He continued taunting and abusing her regularly
and making her believe that it was her fault.
It is humbly submitted to this Hon‟ble Court that under Article 32 of Constitution of Pindiana
any person whose fundamental rights are violated can approach the Supreme Court through a
Writ Petition. Asma had approached this court as the act of Instant Triple Talaq pronounced
by Mukhtar violated her fundamental rights as enshrined under Articles 14, 15, 21 & 51A(e)
of The Constitution of Pindiana. Moreover Instant Triple Talaq is not an essential religious
practice that can be protected under Articles 25, 26 R/W Article 29 of the Constitution of
Pindiana. Furthermore Mukhtar has not complied with the order of High Court of Chind
which had already declared Instant Triple Talaq as unconstitutional.
It is humbly submitted to this Hon‟ble Court that Mukhtar has approached this Court by the
way of a Special Leave Petition under Article 136 of the Constitution of Pindiana. In the
present petition Mukhtar states that The Muslim Women (Protection of Rights on Marriage)
Second Ordinance, 2019 is unconstitutional and should be struck down as it violates the
fundamental rights of Muslim Husbands as enshrined under Articles 14, 15 and 21 of
Constitution of Pindiana.
1. It is most humbly submitted that as per Section 2 of the Muslim Personal Law (Shariat)
Application Act, 19371, Muslim personal law will be applicable to the instant dispute. It is
further submitted that a valid marriage has been solemnized between Mukhtar and Asma,
Sunni and Shia respectively. On 12th April, 2017 Mukhtar pronounced Instant Triple Talaq to
Asma in the presence of witnesses Mr. Ahmed Khan and Mr. Na Wazish Hussain through the
means of post along with the divorce deed. It is further submitted by the petitioner that the
instant Triple Talaq provided in Shariat Law is void-ab-initio due to the following
submissions: Instant Triple Talaq is unconstitutional as it is violative to fundamental rights
under Articles 14, 15 and 21 of the Constitution of Pindiana [A], Article 25 does not protect
Instant Triple Talaq as an essential religious practice [B].
A. INSTANT TRIPLE TALAQ IS NOT EFFECT WITH ARTICLE 14, 15 & 21.
2. It is most humbly submitted that the practice of „talaq-e-biddat‟ permits a male spouse an
unqualified right to divorce a wife, by way of Instant Triple Talaq without the disclosure or
absence of any reason, even could be pronounced in the absence of the wife and even without
her knowledge. This action vests an arbitrary right in the husband, and as such, violated the
equality clause enshrined in Article 14 as it postulates equality before the law and equal
protection of the laws. Furthermore Article 15 puts a clear restraint on discrimination, on the
ground of sex. This way the rights of Muslim Women in matrimonial alliance, has resulted in
severe gender discrimination, which amounted to violation of their human rights under
Article 21 of the Constitution. Thus we seek intervention, for grave injustice practiced against
Muslim wives.
3. In the matter of Githa Hariharan v. Reserve Bank of India2, wherein this Court had the
occasion to interpret the provisions of the Hindu Minority and Guardianship Act, 1956. It was
submitted, that this Court in the above judgment emphasized the necessity to take measures
1
MULLA, Principles of Mahomedan Law (Lexis Nexis-Butterworths 19th edn, 15th reprint, New Delhi, 2007),
Section 2 at p. 1.
2
(1999) 2 SCC 228
WRITTEN SUBMISSION ON BEHALF OF PETITIONERS Page 12
to bring domestic law in line with international conventions, so as to eradicate discrimination
of all forms, against women. It was submitted, that Articles 14, 15 and 21 constituted an
inseparable part of the basic structure of the Constitution and forms the bedrock of the
Constitution. Gender equality and dignity for women is an inalienable and inseparable part of
the basic structure of the Constitution.
4. Article 51A(e) of the Constitution it is the duty of the State to ensure that women were not
subjected to derogatory practices, which impacted their dignity. It was pointed out, that
gender equality and dignity of women, were non- negotiable. It was highlighted, that women
constituted half of the nation‟s population, and inequality against women, should necessarily
entail an inference of wholesale gender discrimination.
5. It is contended that „talaq-e-biddat‟ should not be confused with the profession, practice
and propagation of Islam and „talaq-e-biddat‟ was not sacrosanctal to the profession of the
Muslim religion. It is therefore submitted, that this Court had an indefeasible right, to
intervene and render justice. Therefore, the petitioner is claiming not only gender equality,
but also the progression of their matrimonial life with dignity.
B. ARTICLE 25, 26 R/W ART. 29 DOES NOT PROTECT INSTANT TRIPLE TALAQ AS
AN ESSENTIAL RELIGIOUS PRACTICE
5. It is submitted that Muslim law rests on the four-fold pillars of the fiqh, namely3: the
Quran (kitab), the Sunna (hadith)4 , the Ijma5 and the Qiyas6 and every religion is bound
by its own believes and tenants. Article 25(1) provides that “all” persons were “equally”
entitled to the freedom of conscience, and the right to profess, practice and propagate
religion.
6. Moreover in the present case in hand Instant Triple Talaq is not an essential religious
practice because it is no where supported in Muslim law. In sura LXV, sura IV verses 35
and sura II of the Holy Quran are instructive verses on the issues of divorce in the Quran, it
states that under extremely unavoidable situation talaq is permissible. Thus the practice of
Instant Triple Talaq cannot be considered integral to the religious denomination in the
question and is not a part of their personal law. Instant Triple Talaq is not recognized by
3
Supra note 1, Section 33 at p. 22.
4
Meaning the percepts, actions and sayings of the Prophet Mahomed, not written down during his lifetime, but
preserved by tradition and handed down by generations.
5
Meaning the concurrence of opinion of the companions of Mahomed and his disciples.
6
Being analogical deductions derived from comparisons of the first three sources.
WRITTEN SUBMISSION ON BEHALF OF PETITIONERS Page 13
many schools of Islam. Accordingly it is acknowledged that „talaq-e- biddat‟ has all along
been treated irregular, patriarchal and even sinful.
7. Articles 25, 26 and 29 of the Constitution, do not in any manner, impair the jurisdiction of
this Court, to set right the apparent breach of constitutional morality. That the freedoms
contemplated under Article 25, are subject to the overriding principles enshrined in Part III –
Fundamental Rights, of the Constitution. It is submitted that this position is affirmed through
judgments rendered by the Supreme Court of India in John Vallamattom v. Union of India7,
Javed v. State of Haryana8, and Khursheed Ahmad Khan v. State of Uttar Pradesh9.
8. If the solution of a problem is given in the Quran then it is the final ruling of Sharia. It is
submitted that there is no Quranic basis to establish that three divorces on a single occasion
should amount to an irrevocable divorce; in fact the Prophet deplores divorce10 and described
marriage11 as his Sunnat. It is beseeched that as per the Quran, there must be efforts towards
reconciliation between the divorce.12 This view has been upheld by the court in Shamim Ara
v. State of U.P. and Anr13 that (i) a reason for the divorce must be given and (ii) there must be
an attempt to reconcile. This case has further been upheld by the many High Courts14
including the Kerala HC in Kunimohammed v. Ayishakutty.15 Therefore it is submitted that
the divorce must be treated as a nullity since there was no attempt to reconciliation.
9. It is most humbly submitted that the Parliament of Pindiana had passed an ordinance The
Muslim Women (Protection of Rights on Marriage) Second Ordinance, 2019 which made
Instant Triple Talaq illegal. In the present case Mukhtar has approached this court through
7
(2003) 6 SCC 611
8
(2003) 8 SCC 369
9
(2015) 8 SCC 439
10
“Divorce is most detestable in the sight of God; abstain from it”; “Divorce shakes the throne of God” comes
from the Hadith, “Al-talaqu indallah-i abghad al mubahat” found in many authentic collections of tradition.
11
Tahir Mahmood, Muslim Law of India (LexisNexis-Butterworths, New Delhi, 3 rd edn., 2002) at p. 48.
12
Verse (4:34, 35) as cited by FAIZUR RAHMAN, “Instant Divorce is alien to Islam‟s spirit”, Indian Express,
Kochi edn., June 17 th , 2008; An Enlightenment Commentary into the Light of the Holy Quran (The Scientific
and Religious Center, Iran, 2 nd edn., 1995)
13
(2002) 7 SCC 513
14
Riaz Fatma v. Mohammed Sharif I (2007) DMC 26; 135 (2006) DLT 205; Ummer Farooque v. Naseema
2005 (4) KLT 565; Nur Ali (Md) v. Thambal Sana Bibi 2007 (1) GLT 508
15
2010 (2) KHC 63; The court held that “To us, it appears that this declaration of law rhymes well with
modern notions of marriage and the true Islamic concepts of marriage and divorce… That declaration of law is
consistent with modern notions of marriage and rhymes better with the human right to life recognized under
Art.21. It rhymes well with the concepts of equality under Art.14 of the Constitution. Any contra interpretation
appears to us to be not valid, just or right; but arbitrary, unjust fanciful and oppressive...”
WRITTEN SUBMISSION ON BEHALF OF PETITIONERS Page 14
SLP and challenged the validity of the ordinance stating it to be unconstitutional. It is
submitted that the ordinance passed is unconstitutional due to the following submissions: the
ordinance is in violation to Article 123 of the Constitution of Pindiana[A] and the ordinance
violates the fundamental rights as enshrined in the constitution[B]
16
Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1
17
Shayara Bano v. Union of India & Others. 2017 (9) SCC 1
WRITTEN SUBMISSION ON BEHALF OF PETITIONERS Page 15
It is submitted that Article 15 forbids class legislation predicated solely on the basis of
a person‟s religion. Therefore Ordinance, being confined to Muslim husbands, has no
constitutional justification under Article 15. If the act has no recognition in law, only
Muslims cannot be penalized for committing the act.
b)The ordinance violates Article 15 of the Constitution of Pindiana.
It is submitted that when the law is not just, fair or reasonable such law is no law
under the Constitution. In the case of K.S. Puttaswamy v. Union of India18, it was held
that “….Article 14, as a guarantee against arbitrariness, infuses the entirety of Article
21. The interrelationship between the guarantee against arbitrariness and the
protection of life and personal liberty operates in a multi-faceted plane. First, it
ensures that the procedure for deprivation must be fair, just and reasonable. Second,
Article 14 impacts both the procedure and the expression “law”. A law within the
meaning of Article 21 must be consistent with the norms of fairness which originate
in Article 14. As a matter of principle, once Article 14 has a connection with Article
21, norms of fairness and reasonableness would apply not only to the procedure but to
the law as well…”
12. In the present case the Ordinance is manifestly arbitrary and discriminatory, proved
hereinbefore. Abolition of Instant Triple Talaq was not a surviving cause for legislative
action. Protection of wives cannot be achieved by incarceration of husbands. A truly welfare-
oriented legislation would promote amicable resolution of matrimonial disputes, regardless of
community. A welfare-oriented legislation would not purport to criminalise marital discord
and moreover, particularise the criminalization only to one community. With respect, it is
submitted that any such legislation ought to shock the judicial conscience. The ordinance is
such an endeavour and ought to be struck down for violating Article 21.
18
Leading opinion of DY Chandrachud, J., (2017) 10 SCC 1, para 294
WRITTEN SUBMISSION ON BEHALF OF PETITIONERS Page 16
PRAYER
Wherefore in the light of facts presented, issues raised, arguments advanced and authorities
cited, the Counsels on behalf of the Petitioner humbly pray before this Hon‟ble Court that it
may be pleased to adjudge and declare that:
1. The Fundamental Rights of Asma are violated and hence pronounce instant
Instant Triple Talaq unconstitutional,
And/or pass any other order that the court may deem fit in the light of equity, justice and
good conscience and for this Act of kindness of Your Lordships the Petitioners shall as duty
bound ever pray.
Sd/- _______________________