Team Code: TC 46

35TH BCI ALL-INDIA INTER-UNIVERSITY MOOT COURT COMPETITION, 2019

Before

THE HON’BLE SUPREME COURT OF PINDIANA, CHIND

IN W.P (C) NO. __ OF 20__

ASMA …PETITIONER
V.
UNION OF INDIA & MUKHTAR …RESPONDENTS

with

IN SLP NO. __ OF 20__

MUKHTAR …APPELLANT
V.
UNION OF INDIA …RESPONDENT

Memorial Submitted to the Registry of the Hon’ble Supreme Court of Pindiana

MEMORIAL ON BEHALF OF PETITIONER

 [TABLE OF CONTENTS]

TABLE OF CONTENTS

LIST OF ABBREVIATIONS ........................................................................................................... III

INDEX OF AUTHORITIES ............................................................................................................IV

STATEMENT OF JURISDICTION ................................................................................................. VII

STATEMENT OF FACTS ........................................................................................................... VIII

ISSUES RAISED ..........................................................................................................................IX

SUMMARY OF ARGUMENTS ........................................................................................................ X

PLEADINGS ................................................................................................................................. 1

I. The practice of talaq-e-biddat is void and unconstitutional .......................................... 1

A. Talaq-e-biddat is a ‘law’ within the meaning of Art. 13 ......................................... 1

B. Talaq-e-biddat is in contravention of fundamental rights ....................................... 1

1. Talaq-e-biddat is in contravention of right to equality under Art. 14 ................. 1

2. Talaq-e-biddat is in contravention of right to life under Art. 21 ......................... 2

3. Talaq-e-Biddat is not protected under Arts. 25 and 26 ....................................... 2

II. The promulgation of the Impugned Ordinance under Art. 123 cannot be challenged .. 3

III. The Impugned Ordinance is not violative of any fundamental rights ......................... 4

A. The provisions of the Ordinance are not manifestly arbitrary so as to violate Art. 14
……………………………………………………………………………………..4

B. Discrimination, if any, is protected under Art. 15(3) .............................................. 5

C. The fundamental right to life is not violated ........................................................... 5

PRAYER.....................................................................................................................................XI

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 [LIST OF ABBREVIATIONS]

LIST OF ABBREVIATIONS

AIR All India Reporter

A.P Andhra Pradesh
Art Article
Bom Bombay
Edn. Edition
Hon’ble Honourable
Pg. Page
S. Section
SC Supreme Court
SCC Supreme Court Cases
UOI Union of India
Vol. Volume
W.B West Bengal

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 [INDEX OF AUTHORITIES]

INDEX OF AUTHORITIES

CASES
A.K Roy v. UOI, (1982) 1 SCC 271 3
Abdul Jalil v. State of U.P, (1984) 2 SCC 138 3
Abdurahiman v. Khairunneesa (2010) 1 KLJ 821. 5
Acharya Maharajshri Narendra v. State of Gujarat, (1975) 1 SCC 11 2
Adi Saiva Sivachariyargal Nala Sangam v. Government of Tamil Nadu, (2016) 2 3
SCC 725
Ammini E.J v. UOI, AIR 1995 Ker 252 1
Anuj Garg v. Hotel Association of India, AIR 2008 SC 663 1
AS Narayana v. State of A.P, (1996) 9 SCC 548 3
C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Swaminathaswami 3
Thirukoli, (1996) 8 SCC 52
Charu Khurana v. UOI, (2015) 1 SCC 192 1
Danial Latifi v. UOI, (2001) SCC 740 5
Francis Coralie v. Administrator, Union Territory of Delhi, AIR 1981 SC 746 2
Gazula Dasaratha Rama Rao v. State of A.P, AIR 1961 SC 564 3
Gazula v. State Of A.P, AIR 1961 SC 564 1
Govt. of A.P v. P.B Vijayakumar, (1995) 4 SCC 520 5
Gulam Abbas v. State of U.P, (1984) 1 SCC 81 3
Gyanendra Kumar v. UOI, AIR 1997 Del 58 3
Indian Young Lawyers Association v. State of Kerala, (2016) 16 SCC 810 1
Indian Young Lawyers Association v. State of Kerala, (2016) 16 SCC 810. 3
Indra Swahney v. UOI (1992) 3 SCC 217 5
Javed v. State of Haryana (2003) 8 SCC 369 2
Jiauddin Ahmed v. Anwara Begum, (1981) 1 Gau. L.R 2
John Vallamatton v. UOI , (2003) 6 SCC 611 2
Mackinnon Mackenzie and Co. Ltd. v. Audrey D’Costa, (1987) 2 SCC 469 1
Malyapore Club v. State of Tamil Nadu and Another, (2005) 12 SCC 752 5
Maneka Gandhi v. UOI (1978) 1 SCC 248 5
Maneka Gandhi v. UOI, (1978) 1 SCC 248 2
Manoj Narula v. UOI, (2014) 9 SCC 1 2

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 [INDEX OF AUTHORITIES]

Medha Kotwal Lele v. UOI, AIR 2013 SC 93 2

Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731 3
Motor General Traders v. State of A.P, AIR 1984 SC 121 2
Must. Rukia Khatun v. Abdul Khalique Laskar, (1981) 1 Gau.L.R. 375 2
N Adithyan v. Travancore Devaswom Board, (2002) 8 SCC 106 3
National Council for Teacher Education v. Committee of Management, (2006) 4 2
SCC 65
Natural Resources Allocation, In re, Special Reference No. 1 of 2012, (2012) 10 4
SCC 1
NIT v. Chandra Sekhar Choudhary (2007) 1 SCC 93 2
Om Narain Agarwal v. Nagar Palika Shahajahanpur, AIR 1993 SC 1440 5
Pawan Kumar v. State of Himachal Pradesh, AIR 2017 SC 2459. 5
Rajalakshmi M. Bhuvaneshwari v Nagaphomendar Rayala, AIR 2008 AP 98. 5
Rashid Ahmad v. Anisa Khatun, AIR 1932 PC 25 1, 2, 3
Rattam Arya v. State of Tamil Nadu, AIR 1986 SC 1444 2
S.R. Bommai v. UOI, (1994) 3 SCC 1 1
Sant Ram v. Labh Singh, AIR 1965 SC 314 1
Shahid Azad v. Union of India, W.P (C) No. 10341 of 2018 (decided on 4
28.09.2018)
Shayara Bano v. UOI, (2017) 9 SCC 1 1, 2
Shri Govindlaji Maharaj v. State of Rajasthan, AIR 1963 SC 1638 3
Sri Adi Visheshwara v. State of U.P, (1997) 4 SCC 606 3
Sri Venkataramana Devaru v. State of Mysore, AIR 1958 SC 255 2
State of Bihar v. Kameshwar Singh Prasad, (2000) 9 SCC 94 2
State of Haryana v. Ram Kumar Mann, (1997) 3 SCC 321 2
State of W.B. v. Ashutosh Lahiri, (1995) 1 SCC 189 3
Suchitra Srivastava v. Chandigarh Adminstration (2009) 9 SCC 1 5
Surjit Singh Thind v Kanwaljit Kaur, AIR 2003 P&amp 5
Vishaka v. State of Rajasthan, (1997) 6 SCC 241 1

STATUTES
S. 2, Dissolution of Muslim Marriage Act, 1939 2

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 [INDEX OF AUTHORITIES]

S. 2, The Muslim Personal Law (Shariat) Application Act, 1937 1

S. 3, The Muslim Women (Protection of Rights on Marriage) Second Ordinance, 4
2019
S. 4, The Muslim Women (Protection of Rights on Marriage) Second Ordinance, 4
2019
S. 7, The Muslim Women (Protection of Rights on Marriage) Ordinance, 2019 5

CONSTITUTIONAL PROVISIONS
Art. 123, Constitution of Pindiana 3
Art. 13, Constitution of Pindiana 1
Art. 14, Constitution of Pindiana 1
Art. 15(3), Constitution of Pindiana 1
Art. 21, Constitution of Pindiana 2
Art. 25 and 26, Constitution of Pindiana 2

BOOKS
AAA Fyzee, OUTLINES OF MUHAMMADAN LAW, 122 (5thedn, 2011) 3
Durga Das Basu, COMMENTARY ON THE CONSTITUTION OF INDIA, 5515 (8th edn., 3
Vol. 4, 2007)
M.P Jain, INDIAN CONSTITUTIONAL LAW, 909 (7th edn, 2014) 2

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 [STATEMENT OF JURISDICTION]

STATEMENT OF JURISDICTION

The Petitioner Ms. Asma, in W.P (C)__ of 20__ has approached the Supreme Court of Pindiana
under Art. 32 of the Constitution of Pindiana.

The Appellant Mr. Mukhtar, in SLP No __ of 20__ has approached the Supreme Court of
Pindiana under Art. 136 of the Constitution of Pindiana.

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 [STATEMENT OF FACTS]

STATEMENT OF FACTS

MUKHTAR
Mukhtar is a Sunni Muslim married to Asma under Shariat Law. He has a habit of drinking
and resorts to forcible sex with his wife and beats her frequently. He continued to taunt and
abuse her regularly for their common negligence resulting in miscarriage of Asma.
ASMA
Wife of Mukhtar, Asma is Shia Muslim who is inclined towards Quran and follows traditions
firmly.She is a career oriented person. She was made a victim of violence (both physical and
mental) by her husband on a frequent basis. Despite all this, she tried to reconcile the matter,
but to no good as her husband continued to abuse her regularly.
PARVEEN
Parveen got married to Mukhtar (being his 2nd wife) soon after the miscarriage of Mukhtar and
Asma’s child.
MAINTENANCE
After an initial few months, Mukhtar stopped paying maintenance of Asma.
TRIPLE-TALAQ
On 12th April, 2017, Mukhtar pronounced Triple-Talaq (“talaq-e-biddat”) against Asma in the
presence of 2 witness and communicated the same to her via a letter through post.
ASMA INVOKED ART. 32 OF THE CONSTITUTION OF PINDIANA
Asma filed a petition under Art. 32 of the Constitution of Pindiana challenging the declaration
of talaq-e-biddat by Mukhtar.
THE ORDINANCE
The Muslim Women (Protection of Rights on Marriage) Second Ordinance, 2019 (“Impugned
Ordinance”) was promulgated by the Union/Executive making talaq-e-biddat illegal.
Mukhtar, being aggrieved by the same approached this Court under a Special Leave Petition
under Art. 136 of the Constitution.
Both the matters filed by Asma and Mukhtar were combined for hearing before this Hon’ble
Bench.

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 [ISSUES RAISED]

ISSUES RAISED

ISSUE 1: WHETHER OR NOT THE PRACTICE OF TALAQ-E-BIDDAT IS VOID AND

UNCONSTITUTIONAL?

ISSUE 2: WHETHER OR NOT PROMULGATION OF ORDINANCE UNDER ART. 123 CANNOT BE

CHALLENGED?

ISSUE 3: WHETHER OR NOT THE IMPUGNED ORDINANCE IS NOT VIOLATIVE OF ANY

FUNDAMENTAL RIGHTS ?

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 [SUMMARY OF ARGUMENTS]

SUMMARY OF ARGUMENTS

ISSUE 1: THE PRACTICE OF TALAQ-E-BIDDAT IS VOID AND UNCONSTITUTIONAL

The Petitioner(s) have challenged the practice of talaq-e-biddat to be unconstitutional on the
following grounds:
I. Talaq-e-biddat is a ‘law’ as per Art. 13
II. The practice of talaq-e-biddat violates right to equality and right to life as enshrined in
Art. 14, 15 and 21 and is therefore void.

ISSUE 2: PROMULGATION OF ORDINANCE UNDER ART. 123 CANNOT BE CHALLENGED

The challenge to the validity of an ordinance can succeed only if a petitioner can establish
prima facie that no circumstance existed necessitating its promulgation, following which the
burden is cast on the Executive to establish the existence of such necessary circumstances. No
prima facie case has been established, and hence the challenge under Art. 123 cannot be
sustained.

ISSUE 3: THE IMPUGNED ORDINANCE IS NOT VIOLATIVE OF ANY FUNDAMENTAL RIGHTS

The Impugned Ordinance cannot be considered to be in violation of any provisions of Part III
of the Constitution on the grounds that:
I. The provisions of the Ordinance are not manifestly arbitrary so as to violate Art. 14.
II. Discrimination, if any, is protected under Art. 15(3) of the Constitution.
III. The fundamental right to life under Art. 21 is not violated.

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 [PLEADINGS]

PLEADINGS

I. THE PRACTICE OF TALAQ-E-BIDDAT IS VOID AND UNCONSTITUTIONAL

[¶1.] As per Art. 131 a law which is in contravention of fundamental rights would be void to
the extent of such contravention. Therefore, it is submitted that [A.] talaq-e-biddat is a ‘law’
within the meaning of Art. 13 and [B.] the practice of talaq-e-biddat is in contravention of
fundamental rights and is therefore void.

A. Talaq-e-biddat is a ‘law’ within the meaning of Art. 13

[¶2.] Law includes enactment by the legislature and any custom or usage having the force of
law as per Art. 13. S. 2 of Shariat Act2 codifies the customary Muslim personal law practice
which consists of “dissolution of marriage, including talaq”. In effect, all forms of Talaq,
(including talaq-e-biddat), recognized and enforced by Muslim personal law are recognized
and enforced3 by the Shariat Act. This makes the practice of talaq-e-biddat being codified and
in effect it being a ‘law’ under Art. 13.4 Additionally, any customary practice, like that of talaq-
e-biddat5, has the force of law.6

B. Talaq-e-biddat is in contravention of fundamental rights

[¶3.] It is submitted that the practice of talaq-e-biddat is in contravention of [1.] right to

equality under Art. 14 and Art. 15; [2.] right to life under Art. 21 and [3.] it is not protected
under Arts. 25 and 26.

1. TALAQ-E-BIDDAT IS IN CONTRAVENTION OF RIGHT TO EQUALITY UNDER ART. 14

[¶4.] Discrimination solely on the basis of sex7 is in violation with the Constitution8. Gender
issue is a dynamic concept evolving with the awareness of gender justice.9 Therefore, a law,
including personal law10 which was justified at the time of enactment may, with the passage of

1
Art. 13, Constitution of Pindiana.
2
S. 2, The Muslim Personal Law (Shariat) Application Act, 1937.
3
ShayaraBano v. UOI, (2017) 9 SCC 1, Para 18, (Nariman J.).
4
Ammini E.J v.UOI, AIR1995Ker252, Para 39.
5
Rashid Ahmad v. AnisaKhatun, AIR 1932 PC 25; ShayaraBano v. UOI (2017) 9 SCC 1, Para 59.
6
Sant Ram v. Labh Singh, AIR 1965 SC 314, Para 6; Gazula v. State Of A.P, AIR1961SC564, Para 12.
7
CharuKhurana v. UOI, (2015) 1 SCC 192, Para 41; Mackinnon Mackenzie and Co. Ltd. v. Audrey D’Costa,
(1987) 2 SCC 469, Para 11; Anuj Garg v. Hotel Association of India, AIR2008SC663, Para 49.
8
Art. 14, Constitution of Pindiana; Art. 15(3), Constitution of Pindiana.
9
Vishaka v. State of Rajasthan, (1997) 6 SCC 241, Para 7; Indian Young Lawyers Association v. State of Kerala,
(2016) 16 SCC 810.
10
S.R. Bommai v. UOI, (1994) 3 SCC 1,Para 237.

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 [PLEADINGS]

time, become unreasonable11 and unconstitutional.12 Further, merely because in the same
scheme of cases a norm has not been followed13 or an illegality persists14, that same cannot be
a ground for departure from the said norm or to perpetuate illegality.15
[¶5.] In this light, it is humbly submitted that although talaq-e-biddat was upheld to be a
valid practice,16 the same is against the very tenet of equality as it gives a preferential treatment
to men to unilaterally divorce Muslim women, without the latter having a say.

2. TALAQ-E-BIDDAT IS IN CONTRAVENTION OF RIGHT TO LIFE UNDER ART. 21

[¶6.] Art. 2117 guarantees right to life which essentially means living with dignity. 18 Right
to life is multi-dimensional19 and has an overlapping effect with other fundamental rights and
is thereby extended to conferring equality and dignity to women. 20 Therefore, it is humbly
submitted that the practice of talaq-e-biddat tarnishes the dignity of Muslim women as they do
not have a say or recourse when the same is imposed on them by Muslim men. It is also to be
noted that despite a troublesome marriage21 between Asma and Mukhtar, Asma never exercised
her right to dissolve the marriage;22 indicating her intention of maintaining the martial ties. The
unilateral breakage of this by Mukhtar illustrates the unequal and undignified position a woman
is reduced to whilst talaq-e-biddat is imposed on them.

3. TALAQ-E-BIDDAT IS NOT PROTECTED UNDER ARTS. 25 AND 26

[¶7.] The freedom of religion guaranteed under Art. 25(1) is subservient to other fundamental
rights23 of equality and life, i.e., religious freedom can be exercised 24
as long as it does not
come into conflict with the exercise of fundamental rights of others.25 This right conferred on

11
M.P Jain, INDIAN CONSTITUTIONAL LAW, 909 (7thedn, 2014); Motor General Traders v. State of A.P, AIR 1984
SC 121; Rattam Arya v. State of Tamil Nadu, AIR 1986 SC 1444.
12
John Vallamatton v. UOI, (2003) 6 SCC 611; Medha Kotwal Lele v. UOI, AIR 2013 SC 93.
13
NIT v. Chandra Sekhar Choudhary (2007) 1 SCC 93, Para 10; State of Haryana v. Ram Kumar Mann, (1997)
3 SCC 321; State of Bihar v. Kameshwar Singh Prasad, (2000) 9 SCC 94.
14
National Fertilizers ltd v. Somvir Singh, (2006) 5 SCC 493, Para 17.
15
National Council for Teacher Education v. Committee of Management, (2006) 4 SCC 65, Para 19.
16
Rashid Ahmad v. Anisa Khatun, AIR 1932 PC 25; Jiauddin Ahmed v. Anwara Begum, (1981) 1 Gau.L.R.
358; Must. Rukia Khatun v. Abdul Khalique Laskar, (1981) 1 Gau.L.R. 375.
17
Art. 21, Constitution of Pindiana.
18
Francis Coralie v. Administrator, Union Territory of Delhi, AIR 1981 SC 746.
19
Manoj Narula v. UOI, (2014) 9 SCC 1.
20
Maneka Gandhi v. UOI, (1978) 1 SCC 248;Shayara Bano v. UOI, (2017) 9 SCC 1, Para 39, (Nariman J.).
21
S. 2, Dissolution of Muslim Marriage Act, 1939.
22
Pg. 14, Moot Problem No. 1.
23
Sri Venkataramana Devaru v. State of Mysore, AIR 1958 SC 255; Javed v. State of Haryana (2003) 8 SCC 369.
24
Art. 25 and 26, Constitution of Pindiana.
25
M.P Jain, INDIAN CONSTITUTIONAL LAW, 909 (7thedn, 2014); Acharya Maharajshri Narendra v. State of Gujarat,
(1975) 1 SCC 11.

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 [PLEADINGS]

persons and religious denominations by the aforementioned Articles is not absolute26and hence
long-existing religious practices can also be abrogated.27 Further, the protection under Arts. 25
and 26 extends to rituals and practices which form an essential religious practice,28which in
turn, has to be decided by the courts29 with reference to the religion in question.30 A religious
practice that is optional, or isn’t mentioned in Holy scriptures like the Quran 31 dilutes the
element of essentiality in it.32
[¶8.] It is submitted that talaq-e-biddat cannot be traced to the Quran as the Prophet himself
deprecated it. It was considered sinful by all schools of Sunni Muslims, and as invalid by all
the Shia Muslim schools.33Hence, it should not be treated as an essential practice in Muslim
personal law.

II. THE PROMULGATION OF THE IMPUGNED ORDINANCE UNDER ART. 123 CANNOT BE

CHALLENGED

[¶9.] The power of the President to promulgate an ordinance is dependent on the existence
of circumstances that require “immediate action.”34 For judicial review of an ordinance, there
has to be a prima facie case that no necessary circumstances existed for promulgating it,
following which a burden is cast on the executive to establish such circumstances.35 However,
a casual challenge is not enough to shift such burden on the Executive.36 Therefore, if the pleas
of the petitioner do not prima facie establish non-existence of necessary circumstances, there
can be no judicial intervention on merits.37
[¶10.] It is humbly submitted that no prima facie case has been made by the Appellant to show
non-existence of necessary circumstances. The challenge by the Appellant is merely a casual

26
Gulam Abbas v. State of U.P, (1984) 1 SCC 81; Abdul Jalil v. State of U.P, (1984) 2 SCC 138.
27
Gazula Dasaratha Rama Rao v. State of A.P, AIR 1961 SC 564; C. Masilamani Mudaliar v. Idol of Sri
Swaminathaswami Swaminathaswami Thirukoli, (1996) 8 SCC 525; Indian Young Lawyers Association v. State
of Kerala, (2016) 16 SCC 810.
28
Adi Saiva Sivachariyargal Nala Sangam v. Government of Tamil Nadu, (2016) 2 SCC 725.
29
AS Narayana v. State of A.P, (1996) 9 SCC 548; Shri Govindlaji Maharaj v. State of Rajasthan, AIR 1963 SC
1638.
30
N Adithyan v. Travancore Devaswom Board, (2002) 8 SCC 106; Sri AdiVisheshwara v. State of U.P, (1997) 4
SCC 606; State of W.B. v. Ashutosh Lahiri, (1995) 1 SCC 189.
31
Abdul Jalil v. State of U.P, (1984) 2 SCC 138.
32
Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731; State of W.B. v. Ashutosh Lahiri, (1995) 1 SCC
189.
33
AAA Fyzee, OUTLINES OF MUHAMMADAN LAW, 122 (5thedn, 2011) ; Rashid Ahmad v. Anisa Khatun, AIR
1932 PC 25.
34
Art 123, Constitution of Pindiana .
35
A.K Roy v. UOI, (1982) 1 SCC 271; Durga Das Basu, COMMENTARY ON THE CONSTITUTION OF INDIA, 5515
(8thedn, Vol. 4, 2007).
36
Gyanendra Kumar v. UOI, AIR 1997 Del 58.
37
Ibid.

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 [PLEADINGS]

challenge and cannot be considered enough for the Executive to be compelled to establish
necessary circumstances. The mere pendency of a matter before the Apex Court of Pindiana38
is no ground for restraining promulgation of an ordinance the Executive considers necessary in
time. Therefore, the challenge to the ordinance on the grounds of violating Art. 123 should not
be sustained.

III. THE IMPUGNED ORDINANCE IS NOT VIOLATIVE OF ANY FUNDAMENTAL RIGHTS

[¶11.] It is submitted that the impugned Ordinance is not violative of any fundamental rights
enshrined in Part III of the Constitution, owing to the reasons that [A.] the provisions of the
Ordinance are not manifestly arbitrary so as to violate Art. 14; [B] discrimination, if any, is
protected under Art. 15(3) of the Constitution and [C.] the fundamental right to life under Art.
21 is not violated.

A. The provisions of the Ordinance are not manifestly arbitrary so as to violate Art. 14

[¶12.] To be in conformity with the standards of Art. 14, a law is required to be rational,
informed with reasons and guided by public interest.39 It is humbly submitted that the
Ordinance satisfies such criteria and is within the bounds of the Constitution.
[¶13.] First, there is no anomaly or absurdity in the operation of Ss. 3 and 4 of the Impugned
Ordinance. S. 3 seeks to ensure the sustenance of the marriage by nullifying the pronouncement
of talaq-e-biddat by a Muslim husband.40 On the other hand, by way of penalizing the
pronouncement under S. 4,41 the Ordinance seeks to deter Muslim men from indulging in such
practice in the first place.42 The distinction between nullification of the effect of the act and
criminalization of the act itself must be kept in mind. The provisions of the Ordinance are thus,
based on rationality and informed with appropriate reasons. They cannot be considered as
arbitrary.
[¶14.] Secondly, the classification of pronouncement of talaq-e-biddat as a criminal wrong is
premised on the overbearing interest of the State in protecting the women who have been
subjects of oppression since ages. Further, preservation of marriage as a fundamental unit has
been a subject matter of State’s interest and the Ordinance only furthers the cause. Therefore,
the Impugned Ordinance is based on sound reasons and guided by public interest and cannot
be said to be manifestly arbitrary.

38
Pg. 14, Moot Problem No. 1.
39
Natural Resources Allocation, In re, Special Reference No. 1 of 2012, (2012) 10 SCC 1.
40
S. 3, The Muslim Women (Protection of Rights on Marriage) Second Ordinance, 2019.
41
S. 4, The Muslim Women (Protection of Rights on Marriage) Second Ordinance, 2019.
42
Shahid Azad v. Union of India, W.P (C) No. 10341 of 2018 (decided on 28.09.2018).

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 [PLEADINGS]

B. Discrimination, if any, is protected under Art. 15(3)

[¶15.] Art. 15(3) enables the State to make special provisions with an objective to strengthen
and improve the status of women.43 It is an exception to the rule against discrimination
provided by clauses (1) and (2) of Art. 15 as well as Art. 14. 44 Further, the power to legislate
is a plenary power vested in the legislature and unless the legislation is shown to be in violation
of Part III or passed without legislative competence, a challenge to the enactment brought
forward in the wisdom of the legislature45 would not succeed. The Ordinance making power of
President is considered as an extension of the legislative power of the Parliament.46
[¶16.] It is humbly submitted, that the object of the Impugned Ordinance is to ensure rights of
married Muslim women and to prohibit divorce by talaq-e-biddat. Accordingly, it creates a
separate class of Muslim women who are affected by talaq-e-biddat. Such classification is
based on recognition of the fact that for centuries, women of this country have been socially
and economically handicapped47 and thus falls squarely within Art. 15(3).

C. The fundamental right to life is not violated

[¶17.] A woman enjoys certain rights in a marital relationship rights such as privacy48,
maintenance49, dissolution of marriage50, reproductive autonomy51 etc under Art. 21. The
practice of talaq-e-biddat is against the right to life and dignity of woman under the institution
of marriage.52 Therefore it is submitted that the Impugned Ordinance, by creating a special
class for them, protects these inherent right of Muslim women who have been subject to the
arbitrary practice of talaq-e-biddat. It also allows for subsistence allowance and custody for
child as per the procedure established by law.53 It further provides the accused right to be
heard,54 adhering to the principles of due process of law and the requirements of natural justice
making the ordinance just, fair and reasonable.55Hence, the Ordinance is valid as per Art. 21 .

43
Govt. of A.P v. P.B Vijayakumar, (1995) 4 SCC 520.
44
Om Narain Agarwal v. Nagar Palika Shahajahanpur, AIR 1993 SC 1440; E.V. Chinniah v. State of A.P, (2005)
1 SCC 394.
45
Malyapore Club v. State of Tamil Nadu and Another, (2005) 12 SCC 752.
46
Indra Swahney v. UOI, (1992) 3 SCC 217.
47
Govt. of A.P v. P.B Vijayakumar, (1995) 4 SCC 520.
48
Surjit Singh Thind v. Kanwaljit Kaur, AIR 2003 P&H 353; Rajalakshmi M. Bhuvaneshwari v. Nagaphomendar
Rayala, AIR 2008 AP 98.
49
Danial Latifi v. UOI, (2001) SCC 740.
50
Abdurahiman v. Khairunneesam, (2010) 1 KLJ 821.
51
Suchitra Srivastava v. Chandigarh Adminstration, (2009) 9 SCC 1.
52
Pawan Kumar v. State of Himachal Pradesh, AIR 2017 SC 2459.
53
The Muslim Women (Protection of Rights on Marriage) Second Ordinance, 2019, No. 4 of 2019, Sec. 5-6.
54
S. 7, The Muslim Women (Protection of Rights on Marriage) Ordinance, 2019.
55
Maneka Gandhi v. UOI, (1978) 1 SCC 248.

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 [PRAYER]

PRAYER

Wherefore, in the light of the facts stated, issues raised, arguments advanced and authorities
cited, it is most humbly prayed and implored before the Hon’ble Supreme Court of Pindiana
that it may be graciously pleased to adjudge and declare that:

I. The practice of talaq-e-biddat is void and unconstitutional.

II. The promulgation of the Impugned Ordinance cannot be challenged under Art. 123.
III. The Impugned Ordinance is not violative of any fundamental rights

Also, pass any other order that it may deem fit in the favour of the PETITIONER in the light
of equity, justice and good conscience.

For this act of Kindness, the PETITIONER shall be duty bound forever pray.

Place: Chind sd /-
Dated: 20th April 2019 Counsel for Petitioner

XI | Page MEMORIAL ON BEHALF OF PETITIONER