35TH BAR COUNCIL OF INDIA (TRUST) ALL INDIA INTER-UNIVERSITY MOOT

COURT COMPETITION, 2019

Team Code: TC 30

IN THE MATTER OF

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT

BEFORE SUBMISSION TO HON’BLE CHIEF JUSTICE OF PINDIANA

AND HIS COMPANION JUSTICESOF

THE HON’BLE SUPREME COURT OF PINDIANA

2019
 TABLE OF CONTENTS

TABLE OF CONTENTS ---------------------------------------------------------------------------02

LIST OF ABBREVIATIONS ----------------------------------------------------------------03

INDEX OF AUTHORITIES ---------------------------------------------------------------------05

STATEMENT OF JURISDICTION ---------------------------------------------------10

STATEMENT OF FACTS ------------------------------------------------------------------11

ISSUES RAISED ---------------------------------------------------------------------------14

SUMMARY OF ARGUMENTS -------------------------------------------------------15

ARGUMENTS ADVANCED -------------------------------------------------------------------17

PRAYER ----------------------------------------------------------------------------------------32

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 TABLE OF ABBREVIATIONS

& And

¶ Paragraph

AIR All India Reporter

Anr. Another

Art. Article

Cr. Criminal

Edn. Edition

Hon’ble Honourable

i.e. That is

SCC Supreme Court Cases

v. Versus

Vol. Volume

www World Wide Web

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 INDEX OF AUTHORITIES

A. Table of Cases

S. No. Name of the Cases and Case Citation Page No.

B. Treatises, Books, Reports And Digests

C. Journals Referred

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 1 All India Reporter

2 Supreme Court Cases

3 Indian Law Reporter

D. Database Referred

1 www.judis.nic.in

2 www.lexisnexis.com

3 www.manupatrafast.com

4 www.scconline.com

E. Legal Dictionary

1 Aiyer P.R., Advanced Law Lexicon, (3rd ed., 2005)

2 Garner B.A., Black’s Law Dictionary, (9th ed., 2009)

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 3 Greenberg Daniel, Stroud’s Judicial Dictionary of Words and
Phrases, (4th ed.), Sweet and Maxwell, Vol. 4

4 Oxford Advanced Learners Dictionary, (7th ed., 2008)

F. Statutes Referred

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 STATEMENT OF JURISDICTION

WP(C) NO. _______ OF 201_

The Petitioner has approached this Hon’ble Court invoking Article 32 of the Constitution of
Pindiana.

Article 32 of the Constitution of Pindiana reads as follows:

“32. Remedies for enforcement of rights conferred by this Part-

(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.”

SLP(C) NO._______ OF 2019

The Petitioner has approached this Hon’ble Court invoking Article 136 of the Constitution of
Pindiana.

Article 136 of the Constitution of Pindiana reads as follows:

“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.”

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 STATEMENT OF FACTS

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.
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.
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.
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.
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.
After knowing about her decision, Mukhtar and Asma’s in-laws along with her parents
convinced her to leave the job (as Muktar was earning a very high pay as well) and to have the
child. But unfortunately due to negligence of both, 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.

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Soon after the incident Mukhtar decided to go for a second marriage in spite of several
objections raised by Asma. Nevertheless he got married to Parveen. After his second marriage
Mukhtar started neglecting Asma and shifted to another apartment leaving Asma alone by
herself. Initially he gave maintenance to her but after few months he stopped paying
maintenance. So in order to maintain herself she started looking for a job but to no avail.
Later on 12th April, 2017 Mukhtar in the presence of witnesses Ahmed Khan and Na Wazish
Hussain (friends of Muktar) declared “I GIVE ‘TALAQ, TALAQ, TALAQ’, hence I divorced
my wife Asma from the said date and she is free to lead her life and the same was conveyed to
Asma by way of letter sent through post along with Divorce deed duly signed by witnesses. The
amount of Meher (dower) was tendered to be paid as and when required with the amount of
maintenance for the waiting period to the extent of Rs. 50,000.
Asma was shocked in disbelief to receive the information and decided to exercise her right as a
woman and filed a petition invoking original jurisdiction of the Apex Court under Article 32 of
the Constitution of Pindiana for attacking her by way of such declaration by Mukhtar.
Meanwhile triple talaq was made illegal by passing an ordinance The Muslim Women
(Protection of Rights on Marriage) Second Ordinance, 2019.
It is contended by the petitioner that the instant talaq provided by Shariat Law should be declared
void-ab-initio as it causes gross injustice and terminates the matrimonial ties between spouses.
It is further contended that such practice of talaq-e-biddat (triple talaq) violates the fundamental
rights enshrined under Article 14, 15 and 21 of the Constitution of Pindiana where Muslim
population is second highest. It is also stated in the contention that countries like INDIA where
laws are at par with Pindiana, it is declared unconstitutional by high court of Chind. Later on
Mukhtar filed a Special Leave Petition to hold the ordinance unconstitutional. Subsequently the
Hon’ble Supreme Court combined both the matters & constituted a constitution bench of 7
Judges to resolve both the cases.
The petition is listed for the final hearing in the Constitutional Bench of the Hon’ble Supreme
Court of Pindiana.

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 ISSUES RAISED

I. WHETHER THE FUNDAMENTAL RIGHTS OF ASMA INFRINGED THROUGH

TRIPLE TALAQ?
II. WHETHER THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON
MARRIAGE) SECOND ORDINANCE, 2019 IS VALID IN THE EYES OF LAW?

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 SUMMARY OF ARGUMENTS

ISSUE I. WHETHER THE FUNDAMENTAL RIGHTS OF ASMA INFRINGED

THROUGH TRIPLE TALAQ?

It is humbly submitted to this Hon’ble Court that the Asma has approached this Court invoking
Article 32 of the Constitution of Pindiana. It is contended that the present petition is liable to be
dismissed as the High Court of Chind has already pronounced Triple Talaq to be unconstitutional
and she should have approached the appropriate forum for remedies. Moreover the Writ of
Mandamus will not be applicable as there is appropriate Ordinance to punish the Muslim male
spouse who has declared Triple Talaq to their wives.

ISSUE II. WHETHER THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON

MARRIAGE) SECOND ORDINANCE, 2019 IS VALID IN THE EYES OF LAW?

It is humbly submitted that the ordinance passed by the government is constitutional. Due to the
lack statutory laws the Muslim women were discriminated by the arbitrary use of Triple Talaq by
their Husbands. As such cases rose rapidly in Pindia it was a need of the hour for the government
to pass such ordinance making Triple talaq illegal.

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 ARGUMENTS ADVANCED

ISSUE I.WHETHER THE FUNDAMENTAL RIGHTS OF ASMA INFRINGED

THROUGH TRIPLE TALAQ?

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 a Sunni male and a Shia
female. In the present case marriage was solemnized between Mukhtar, a Sunni male and Asma,
a Shia female, under Shariat Law. On 12th April, 2017 Mukhtar pronounced 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 valid due to the following submissions: triple talaq is protected
by Art. 25 & 26 r/w Art. 29 of the Constitution of Pindiana[A] & triple-talaq is recognized under
the Muslim personal law and that the requisite procedure for talaq is followed.[B]

A. TRIPLE TALAQ IS PROTECTED BY ART. 25 & 26 R/W ART. 29 OF THE

CONSTITUTION OF PINDIANA
Amongst other freedoms guaranteed under the provisions of the Constitution, the most cherished
one is the freedom of conscience as contained in Articles 25 and 26 of the Constitution. The
preamble clearly enshrines values of liberty of thought, expression, belief, faith, worship.
Further, Article 25 of the Constitution, guarantees freedom of conscience and freedom to profess,
practice and propagate religion. Article 25 guarantees individual freedom of conscience subject
to public order, morality and health and to the other provisions of the third part of the
Constitutions. (Article 26 of the Constitutions grants freedom to every religious denomination or
any section thereof to manage its own affairs “in matters of religion”. It is submitted that
Religion is the matter of faith and conscience and Muslim Personal Law being the very core of
Islamic religious faith amalgamates in itself ‘belief’, 'practice' and ‘propagation' as guaranteed
under Art. 25 and 26 r/w Art. 29 of the Constitution.) The protection of Article 25 and 26 is not
limited to matters of doctrine or belief, but it extends to the acts done in pursuance of religion
1
MULLA, Principles of Mahomedan Law (Lexis Nexis-Butterworths 19th edn, 15th reprint, New Delhi, 2007),
Section 2 at p. 1.
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and therefore contained a guarantee for rituals and observances, ceremonies and modes of
worship which are integral parts of religion. 2 What is essential part of a religion or what its
religious practice has to be judged in the light of its doctrine and such practices as are regarded
by the community as a part of its religion must also be included in them. 3 The Respondent
contends that the practice of marriage, maintenance and divorce differs in each religion since
each religion views them in a different context. The practices in a religion are therefore peculiar
to that particular religion only. Thus, a religion cannot be adjudged as being unequal in rights to
another religion. These practices have been protected under Art. 25, 26 and 29 so that the
exclusivity of each religion is protected. Therefore, the Respondent humbly submits that the
practices in the instant matter are protected by Articles 25, 26 r/w 29.
B. TRIPLE-TALAQ IS RECOGNIZED UNDER THE MUSLIM PERSONAL LAW AND
THAT THE REQUISITE PROCEDURE FOR TALAQ IS FOLLOWED.
Muslim Marriage or Nikah is held as a legal civil contract between a man and a woman carried
out on the basis of ijab-o-qabool. Ijab is a proposal from one party and Qubool is acceptance
from other. According to Sharia law, this contract is considered as integral to a religiously valid
Islamic marriage that legalises sexual relation between man and woman to produce children. 4 In
the present case in hand, Asma, has denied every request and/or trial effort of Mukhtar to
conceive their child. However when Asma eventually conceived, she was determined to abort the
conceived unborn child. Asma suffered a miscarriage due to her negligence in taking reasonable
care. Owing to the above turn of events, Mukhtar married Parveen, but has dispensed with his
duties as a faithful husband and taken care of Asma. Mukhtar has paid Asma her share of
maintenance every month after their separation; and after pronouncement of talaq in the presence
of witnesses, sent duly signed divorce deed to Asma, with the amount of Meher as well as the
maintainence required for the waiting period upto 50,000; taking care of her legitimate right.

It is thus submitted that Mukhtar has followed all the requisite procedure as provided under the
Muslim Personal Laws while divorcing Asma.

It is further submitted that there are different modes of talaq allowed in Islam, triple-talaq is
specifically allowed and is known as one of the forms of talaq-ul-bidaat being an irrevocable
2
E.R.J.Swami v.State of Tamil Nadu, AIR 1972 SC 1586.
3
Syedna Taher Saifuddin Saheb v.State of Bombay, 1962 Supp (2) SCR 496.
4
Hasina Bano v. Alam Noor (2007) Raj L.R. 543
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talaq.5 In Saiyid Rashid Ahmad and Anr. v. Mt. Anisa Khatun and Ors. 6, the court with approval
the views of Sir R. K. Wilson, in his Digest of Anglo-Mahomedan Law (5th Edition) that the
triple-talaq is a valid form of divorce under talaq-ul-bidaat. In Ahmad Giri v. Mst. Begha 7 , the
court cited with approval Ameer Ali’s Mohammadan Law8, and refused to negate the validity of
talaq-ul-bidaat. Not only this, it also went so far as to warn the lower judiciary from giving any
novel or innovative interpretations of the sharia as judicial officers are not learned in the sharia. 9
This warning has been reiterated by the Supreme Court in Ahmedabad Women’s Action Group
(AWAG) and Ors. v. Union of India 10 in deciding whether Muslim personal law may be
amended by judicial interference. It ruled that personal laws are a matter of state policies with
which the Court does not have any concern.

Moreover, rules of interpretation of Mahomedan law do not allow interpretations of the Quran in
opposition to express rulings of Mahomedan commentaries of great antiquity and high authority.
Similarly, hadiths or other ancient texts should not be interpreted so as to deduce new rules or
interpretations which the ancient doctors of the law have not themselves drawn.

It is averred therefore that Mukhtar being a Sunni is within his rights to give a triple-talaq and
that court cannot and must not interpret settled and recognized provisions of Muslim personal
law.

II. WHETHER THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE)

SECOND ORDINANCE, 2019 IS VALID IN THE EYES OF LAW?

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 triple
talaq illegal. In the present case Mukhtar has approached this court through SLP and challenged
the validity of the ordinance stating it to be unconstitutional. It is submitted that the ordinance

5
Section 311(3)(i) at p. 261: “...three pronouncements made during a single tuhr ...”, MULLA, Principles
of Mahomedan Law, Lexis Nexis-Butterworths 19 th edn, 15 th reprint, New Delhi, Section 258 at p. 226.
6
AIR 1932 PC 25
7
AIR 1955 J&K 1
8
Vol. II (1929 Edition)
9
The court again cited with approval the views of Sir R. K. Wilson, in his Digest of Anglo-Muhammadan
Law (5th
Edition).
10
(1997) 3 SCC 573
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passed is valid in the eyes of law due to the following reasons: that circumstances exited that it
was necessary to pass the ordinance[A], the ordinance is not violative to the fundamental rights
as enshrined in the constitution[B] & an ordinance cannot be challenged under Article 136 of the
Constitution of Pindiana [C].
A. AN ORDINANCE CANNOT BE CHALLENGED UNDER ARTICLE 136 OF THE
CONSTITUTION OF PINDIANA
It is submitted that Article 136, the Constitution of Pindiana gives power to the Supreme Court to
grant special permission or leave to an aggrieved party to appeal against an order passed in any
of the lower courts or tribunals in India.
In the case of Engineering Mazdoor Sabha v Hind Cycles Ltd. 11, the Court held that for invoking
Art 136(1) two conditions must be satisfied: (1) the act complained against must have the
character of a judicial or a quasi-judicial act as distinguished from a mere executive or
administrative act, and (2) the authority whose act is complained against must be a court or a
tribunal. Unless both the conditions are satisfied, Art. 136(1) cannot be invoked.
In the present case Mukhtar has filed a SLP challenging the constitutionality of the Ordinance. It
is submitted that an Ordinance is the act of the executive and it does not have any judicial or
quasi-judicial character. Therefore the SLP cannot be invoked.
B. CIRCUMSTANCES EXITED THAT IT WAS NECESSARY TO PASS THE
ORDINANCE.
It is submitted that under the Constitution, the power to make laws rests with the legislature.
However, in cases when Parliament is not in session, and ‘immediate action’ is needed, the
President can issue an ordinance. The Supreme Court has clarified that the legislative power to
issue ordinances is ‘in the nature of an emergency power’ given to the executive only ‘to meet an
emergent situation’.12
1. The Ordinance passed was not arbitrary.
‘Arbitrarily’ means in an unreasonable manner, as fixed or done capriciously or at
pleasure, without adequate determining principle, not founded in nature of things, non-
rational, not done or acting according to reason or judgment, depending on will alone. 13

11
AIR 1963 SC 874
12
Article 123 of Constitution of India.
13
Sharma Transport v. Govt. of A.P., AIR 2002 SC 322.

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 Since Maneka Gandhi’s case,14 the Courts have adopted the Wednesbury principle that if
the classification was an arbitrary act of the State under Art.12 of the Constitution, Art.14
would strike it down.15 Art.14 protects us from both legislative and executive tyranny by
way of discrimination.16
It is submitted that protection of wives cannot be achieved by incarceration of husbands.
The intent behind the ordinance is abolition of triple talaq and punishment of Muslim
husbands. Thus the Ordinance passed has no element of whim or ambiguity which would
make it fall within the purview of definition of ‘arbitrarily’.
C. THERE WAS NO MALAFIDE INTENTION IN PASSING OF THE ORDINANCE.
In Gurudevdatta VKSSS Maryadit v. State of Maharashtra17, while relying on Nagarai's case, it
was observed: "that passing an ordinance is not an administrative or executive action, but being
legislative in nature, it is subject only to constitutional limitations applicable to ordinary statutes.
The Ordinance, if it does not infringe the constitutional safeguards, cannot be examined nor can
the motive for such a promulgation be in question. Courts cannot interfere with a "legislative
malice" in passing a statute. Interference is restrictive in nature and that too in the
constitutionality aspect and not beyond the same. It was further observed that legislative malice
is beyond the pale of jurisdiction of the law courts.” In the present case the ordinance was passed
to punish Muslim husbands for pronouncement of triple talaq. The ordinance does not infringe
any of the constitutional safeguards as provided by the Constitution of Pindiana. It is therefore
submitted that the Court cannot infer the intention of passing the Ordinance.

14
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
15
Kasturi Lal Lakshmi Reddy v. State of J&K, AIR 1980 SC 1992, ¶ 14.
16
Basheshar Nath v. The Commissioner of Income Tax, Delhi & Rajasthan, AIR 1959 SC 149, ¶25
17
AIR 2001 SC 1980: (2001) 4 SCC 534
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 PRAYER

Wherefore in the light of facts presented, issues raised, arguments advanced and
authorities cited, the Counsels on behalf of the Appellant humbly pray before this Hon’ble
Court that it may be pleased to adjudge and declare that:

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 Appellant shall as duty
bound ever pray.

Sd/- _______________________

Counsels for the Appellant.

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