KLM Appellant

SHRI.
KONERU LAKSHMAIAH MEMORIAL 2nd ALL INDIA MOOT COURT COMPETITON 2019
KLMM006 – A
BEFORE THE HON’BLE SUPREME COURT OF MAGICLAND
UNDER ARTICLE 132, 133 r/w 134A
OF THE CONSTITUTION OF MAGICLAND
-IN THE MATTER OF –
MR SULTHAN……………………………………………………………. APPELLANT
versus
MS SUFIA…………………………………………………………………RESPONDENT
SUBMISSION BEFORE HON’BLE JUDGE OF SUPREME COURT OF MAGICLAND
MEMORIAL ON BEHALF OF APPELLANT
1
SHRI. KONERU LAKSHMAIAH MEMORIAL 2nd ALL INDIA MOOT COURT COMPETITON 2019
TABLE OF CONTENTS
TABLE OF CONTENTS __________________________________________________2-3
LIST OF ABBREVIATIONS_______________________________________________4-4
INDEX OF AUTHORITIES________________________________________________5- 6
STATEMENT OF JURISICTION___________________________________________7-7
STATEMENT OF FACTS__________________________________________________8-9
ISSUES RAISED________________________________________________________10-10
SUMMARY OF ARGUMENTS____________________________________________11-11
WRITTEN SUBMISSION_________________________________________________12-23
1. Appeal filed before this court is maintainable___________________________12-14

A. The Matter involves a substantial question_____________________________12-13
i. Substantial question as to interpretation of Constitution___________12-13
ii. Substantial question of law of general importance________________13-13
B. The Appellant has locus standi______________________________________13-14
i. Standing____________________________________________________13-14
ii. Justiciability_________________________________________________14-14
C. The decision of High Court is correct_________________________________14-16
I. Polygamy can be challenged as being violative of Part III of the
Constitution______________________________________________15-16
II. Personal laws do not have protection of Art 25__________________16-16
2. Practice of polygamy is violative of Fundamental Rights__________________17-20
A. System of polygamy an integral part of the Muslim Religion______________17-18
B. Religious practice has protection under Art. 25_________________________18-19
C. Protection of polygamy under Sec 494 of IPC__________________________19-20
3. Refusing to beget children valid ground for divorce amounting to mental
cruelty___________________________________________________________20-23
2
A. Inequitable Treatment____________________________________________20-21
B. Begetting Children______________________________________________21-21
C. Non- Performing of Martial Obligation does not amount to cruelty________21-22
D. Appointment of artibers__________________________________________23-23
PRAYER_________________________________________________________________24
3
LIST OF ABBREVIATIONS
ABBREVIATION EXPANSION
& And
A.I. R All India Report
Anr. Another
Art. Article
Co. Company
HC High Court
Hon’ble Honorable
Ltd. Limited
Mgf Manufacturing
Ors Others
p. Paragraph
r/w Read With
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reports
Sec. Section
US United States
v. Versus
4
INDEX OF AUTHORITIES
I. LIST OF CASES
CASE NAMES PARA
1. Bijoe Emmanuel vs State of Kerala, AIR 1987 SC 748: (1986) SCR 518: (1986) 3 SCC
615___________________________________________________________________27
2. Cf. Gulab v. Manphool, AIR 1953 Raj 42 (FB); Lachman v. Bihar Govt., AIR 1952 Pat
386 ___________________________________________________________________8
3. Durgah committee v. Hussain, AIR 1961 SC 1402: (1962) 1 SCR 383 : 1961 (1) CrlJ 747
(para 33)______________________________________________________________24
4. Gaurav Nagpal v. Sumedha Nagpal_________________________________________48
5. Govindaraju v. Mariamman, AIR 2005 SC 1008: (2005) 2 SCC
500_________________3
6. Govindlaji v. State of Rajastahan, AIR 1963 SC 1638: (1964) 1 SCR 561: (1964) 2 SCJ
715 (paras. 58-59; Ramanuja v. State of T.N., AIR 1972 SC 1586: (1971)3 SCR 815:
(1972) 2 SCC 11(para.12)
_________________________________________________24
7. Hafiz v. Shyam Lal, A.I.R. 1944 All
273_______________________________________5
8. Jasbhai Motibhai v. Roshan Kumar, AIR 1976 SC 578___________________________9
9. K. C. Mathew and Sons v. A. Sulaikha Beevi, AIR 2000 SC 3408: (2000) 9 SCC
276____________________________________________________________________2
10. Krishna Singh v. Mathura Athir(1981) 3 SCC
689______________________________14
11. Quareshi v. state of Bihar, AIR 1956 SC 731: 1959 SCR 629 (739-40) CB__________24
12. Ratilal v. State of Bombay, 1954 AIR 388, 1954 SCR 1035______________________30
13. Saifuddin v. State of Bombay, AIR 1962 SC
853_____________________________11,20
14. Shahulameedu v. Subaida Deevi 1970_______________________________________38
15. Shayara Bano v. Union of India and Others (2017) 9 SCC 1______________________17
16. Sir Chunilal Mehta & Sons Ltd. v. The Century Spinning & Manufacturing Co Ltd. AIR
1962 SC 1314___________________________________________________________7
17. Smt Monika Guptha v. Jithendra Gandhi_____________________________________42
18. State of J&K. v. Ganga, AIR 1960 SC 356 (359): (1960)2 SCR 346________________4
19. State of W.B. v. Ashutosh, AIR 1995 SC
464__________________________________20
20. Sumar Gosh v. Jaya Gosh MANU/SC/1386/2007______________________________40
21. T. M. Krishnaswami Pillai v. Governor General in Council, AIR 1947 FC
37__________2
5
22. The Commissioner of Police & Ors vs Acharya Jagdishwarananda Avadhuta, AIR 2004
SC 2984: (2004) 12 SCC
1005______________________________________________29
23. The State of Bombay vs Narasu Appa Mali, AIR 1952 Bom 84, (1951) 53 BOMLR 779,
ILR 1951 Bom
775____________________________________________________14,16
24. Union of India v. Jayantilal Kuberdas Katakia, ILR 1973 Delhi 433_________________6
25. V. Bhagat v. D. Bhagat, AIR1994 SC 710___________________________________44
26. Youth Welfare Federation v. Union of India 1996 (4) ALT
1138___________________17
II. STATUTES.
1. Constitution of India, 1950.
2. Indian Penal Code, 1860.
3. Muslim Personal Law (Shariat) Application Act, 1937.
4. The Dissolution of Muslim Marriages Act, 1939.
III. INTERNATIONAL CONVENTIONS.

1. Convention on Consent to Marriage, Minimum Age for Marriage and Registration of
Marriage.
2. Convention on the elimination of All Forms of Discrimination Against Women.
3. The International Covenant on Civil and Political Rights.
4. The International Covenant on Economic, Social and Cultural Rights.
5. Universal Declaration of Human Rights.
IV. BOOKS.
1. Constitutional law of India, H. M. Seervai, (4th edition), volume 2.
2. DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (8th
Edition 2009), part 3.
3. DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (8th
Edition 2009), part 5.
4. DURGA DAS BASU, INDIAN PENAL CODE, (9TH edition), part 2.
5. MANZAR SAEED, COMMENTARY ON MUSLIM LAW OF INDIA, (2nd edition).
6. Mulla on MOHAMMEDAN LAW, (3rd Edition).
7. MULLA’S Principles of MOHOMDEAN LAW.
6
8. MUSLIM LAW and the CONSITUTION, A. M. Bhattacharjee (2nd edition).

9. V.N. SHUKLA’S CONSTITUTION OF INDIA (12th Edition, Mahendra Pal Singh).
STATEMENT OF JURISDICTION
THE APPELLANT HUMBLY SUBMITS THIS MEMORANDUM BEFORE THE HON’BLE

SUPREME COURT OF MAGICLAND, UNDER ARTICLE 132, ARTICLE 133 (BOTH) R/W
ARTICLE 134A OF THE CONSTITUTION OF INDIA, 1950.
IT SETS FORTH THE FACTS, CONTENTIONS AND ARGUMENTS IN THE PRESENT

CASE.
7
STATEMENT OF FACTS
I. BACKGROUND:
Magicland is a Sovereign, Secular, Democratic Republic which provides

Fundamental Rights to its citizens. However, every religion has their own personal
laws and the Muslims are governed by The Muslim Personal Law (Shariat)
Application Act, 1937 which deals with marriage, succession, inheritance etc. among
Muslims.
Ms. Sadia and Mr. Sulthan married in 2003 as per customs of Muslim personal law.
Despite appropriate medical treatment, they could not procreate children. In 2010,
Mr. Sulthan married Ms. Sufia with the consent of his first wife. Ms. Sufia accepted
to be considered as his second wife.
In 2011, Ms. Sadia conceived and gave birth to a baby boy. Mr. Sulthan was happy
with the child and he decided not to have any more children. Ms. Sufia was not happy
and insisted on having her own child. For this fact, he was looking after both the
wives with same affection. However, she was not happy with the decision and filed a
petition for divorce in the Family Court in 2015.
II. DIVORCE PETITION BEFORE FAMILY COURT

Ms. Sufia filed divorce petition before Family Court under Section 2(viii)(f) of the
Dissolution of the Muslim Marriage Act, 1939. She contended that refusing to have
children through her amounted to “inequitable treatment” to her as per the
instructions of Quran.
The Family Court rejected her contention and refused to grant divorce.
III. APPEAL BEFORE HIGH COURT

Ms. Sufia filed an appeal in the High Court, challenging the decision of the Family
Court on the ground that refusing to beget children is sufficient ground for divorce as
8
it amounts to mental cruelty. She alternatively pleaded that her marriage should be
declared null and void as polygamy is unconstitutional under Art 14, 15 and 21 of the
Constitution.
The High Court observed that the decision of Family Court was wrong and accepted
her contention that the system of polygamy violated the Fundamental Rights and
therefore declared her marriage as null and void.
IV. APPEAL BEFORE SUPREME COURT
Mr. Sulthan appealed before Supreme Court and pleaded that he had not caused any
mental cruelty and challenged the decision of High Court which declared polygamy
as unconstitutional.
9
ISSUES RAISED
1. WHETHER THE APPEAL FILED BEFORE THIS COURT IS

MAINTAINABLE?
2. WHETHER THE PRACTICE OF POLYGAMY IS VIOLATIVE OF

FUNDAMENTAL RIGHTS OF THE CONSTITUTION OF MAGICLAND?
3. WHETHER REFUSING TO BEGET CHILDREN FORMS VALID GROUND

FOR DIVORCE, AMOUNTING TO MENTAL CRUELTY?
10
SUMMARY OF ARGUMENTS
1. WHETHER THE APPEAL FILED BEFORE THIS COURT IS

MAINTAINABLE?
It is humbly submitted to this Hon’ble Court that under Article 132, 133 r/w 134A of the
Constitution of Magicland, any person aggrieved by the decision of HC can file an appeal before
the Supreme Court. The Appellant has locus standi to approach the Hon’ble Supreme Court as
civil appeals which has substantial question of public importance are covered by Article 133.
Furthermore, the jurisdiction of Supreme Court can also be invoked when substantial question of
law involves interpretation of the Constitution under Article 132. Also, personal laws being
derived from authoritative sources cannot be challenged to infringe fundamental rights and
practice of polygamy has the protection of Article 25 as being religious practice.

FUNDAMENTAL RIGHTS OF THE CONSTITUTION OF MAGICLAND?
It is humbly submitted before the Hon’ble Court that, the petitioner has not violated the rights of
the respondent in the present case, as system of polygamy is an integral part of the Muslim
religion and merely protected by the virtue of Article 25 and Article 26 of the Constitution. As
Muslim Personal Law (Shariat) Application Act, 1937 recognizes and validates the system of
polygamy it cannot be considered as unconstitutional.
3. WHETHER REFUSING TO BEGET CHILDREN FORMS VALID GROUND

FOR DIVORCE, AMOUNTING TO MENTAL CRUELTY?
The decision of high court in the matter of refusing to beget children through Ms. Sufia from Mr.
Sulthan amounts to mental cruelty which was ground for divorce is unreasonable.
1.
11
WRITTEN SUBMISSIONS
I. WHETHER THE APPEAL FILED BEFORE THE SUPREME

COURT IS MAINTAINABLE?
1. It is humbly submitted that the appeal petition filed against the judgement of Hon’ble
High Court is maintainable under Article 132, Article 133 r/w Article 134A of the
Constitution of Magicland. [A] The appellate has locus standi to approach the Hon’ble
SC. [B] Challenging the decision of the Hon’ble High Court. [C]
A. THE MATTER INVOLVES A SUBSTANTIAL QUESTION OF LAW
2. The jurisdiction conferred under Art. 132(1) and Art. 133(1) on the SC is to deal with
appeals involving substantial question of law. The word “substantial” here means a
question regarding which there is difference of opinion1 and which has to be resolved for
deciding the main issues involved in the case.2 In the instant case, the question of law
involved is the decision of the HC which declared polygamy as unconstitutional.
3. The practice of polygamy among Muslims is a debatable topic and has not been
previously settled by the SC. It was provided in Govindaraju v. Mariamman3 that the
substantial question of law should be such that answer to it would have a material bearing
as to the rights of the parties before the court.
i. Substantial question as to the interpretation of the Constitution.
4. It is humbly submitted that Article 132(1) deals with constitutional matters which
involves interpretation of the Constitution. The principle underlying the Art is that the
final authority of interpreting the Constitution must rest with the Supreme Court.4 It is
further contended that under Art. 132(1) r/w Art. 134A, the High Court certifies that the
case to be heard by the Supreme Court.
5. The case may be said to involve the constitutional question only if the decision depends
upon it.5 In the present case, the question of law involved in appeal is regarding the
1
T. M. Krishnaswami Pillai v. Governor General in Council, AIR 1947 FC 37 a case involving the interpretation of
the expression “substantial question of law” occurring in Sec. 205 of the Government of India Act, 1935.
2
K. C. Mathew and Sons v. A. Sulaikha Beevi, AIR 2000 SC 3408: (2000) 9 SCC 276
3
Govindaraju v. Mariamman, AIR 2005 SC 1008: (2005) 2 SCC 500
4
State of J&K. v. Ganga, AIR 1960 SC 356 (359): (1960)2 SCR 346.
5
Hafiz v. Shyam Lal, AIR 1944 All 273
12
constitutionality of polygamy among the Muslims. The practice of polygamy forms an

integral part of Muslims as provided in the Holy Quran. The HC declaration invokes
judicial interpretation of Art. 25 of the Constitution as the practice of polygamy among
Muslims is maintained by Shariat Act and does not involve judicial intervention.
ii. Substantial question of law of general importance
6. It is provided under Art 133(1) that an appeal shall lie against a civil proceeding. Under
Art 134A the HC will grant certificate only if the case involves a question of law (i)
which is not only substantial but is also of general importance; and (ii) the said question,
in HC’s opinion, needs to be decided by the Supreme Court.6
7. It is humbly submitted that in Sir Chunilal Mehta & Sons Ltd. v. The Century Spinning &
Manufacturing Co Ltd. case, the apex court observed that: “The proper test for
determining whether a question of law raised in the case is substantial would, in our
opinion, be whether it is of general public importance or whether it directly and
substantially affects the rights of the parties and if so whether it is either an open question
in the sense that it is not finally settled by this Court or by the Privy Council or by the
Federal Court or is not free from difficulty or calls for discussion of alternative views.7
8. It is further submitted that in order to be of general importance, it must affect a large
number of persons.8 In the present case, right of the husband to refuse to beget children
does not amounts to mental cruelty is in question. The appellant had not caused any
mental to which the decision of Family Court could be reversed. Also, this cannot be
considered as a valid ground for divorce. Hence, the matter is a question of general
importance and it needs to be decided by the apex court.
B. THE APPELLANT HAS LOCUS STANDI TO APPROACH THE
HON’BLE SUPREME COURT
i. Standing to sue
9. It is humbly submitted that the Appellant has locus standi to approach before the Hon’ble
Supreme Court in the present case. To have a "standing to sue", which means locus standi
to ask for relief in a court independently of a statutory remedy, the plaintiff must show
that he is injured, that is, subjected to or threatened with a legal wrong.9 In the instant
6
Union of India v. Jayantilal Kuberdas Katakia, ILR 1973 Delhi 433
7
AIR 1962 SC 1314
8
Cf. Gulab v. Manphool, AIR 1953 Raj 42 (FB); Lachman v. Bihar Govt., AIR 1952 Pat 386
13
case, the appellant is an aggrieved person whose rights have been violated by the decision
of High Court.
10. It is contended that Article 132 is principally concerned with the determination of
constitutional questions though arising in litigation between the private parties.10 In order
to give a person locus standi to appeal on a certificate granted under any clause of Article
132, it is necessary that he be a party in the case before the High Court. In the present
case, the appellate was party in the case before the High Court. The Appellant has locus
standi to file appeal under Article 133(1) as the matter is civil in nature and involves a
substantial question of law of general importance.
11. It is pertinent to note that the decision has violated Art. 25(1) and 26(b) of the appellant
as the system of polygamy has been in existence since the inception of Islam and the
issues relating to marriage, divorce etc. are dealt by the personal laws which are not
affected by any part of the Constitution if it forms integral part of the religion.11
12. It is further submitted that the ruling regarding mental cruelty by the HC has infringed his
personal right under Art. 21. Such infringement has given right to appellant to seek
judicial review of the contravention.
ii. Justiciability
13. The general rule states that most administrative actions touching the interests of
individuals are justiciable. The adjudication by courts is required only when interests of
individual per se are to be decided an impartial agency. In the instant case, the grievance
of the appellant was that the decision of the HC has been violative of various provisions
of Part III of the Constitution as provided in above sections and requires to be adjudicated
by SC.
C. CHALLENGING THE DECISION OF HIGH COURT
14. It is humbly submitted by the Appellate that the Hon’ble HC was not justified in
declaring the practice of polygamy among Muslims as unconstitutional. It is submitted
that issues relating to marriage, divorce, custody and guardianship of children,
inheritance, succession and like issues, are guided by the faith of the people, associated to
9
Jasbhai Motibhai v. Roshan Kumar, AIR 1976 SC 578
10
DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (8th Edition 2009)
11
Saifuddin v. State of Bombay, AIR 1962 SC 853
14
their religion. It is an historic fact that both the Muslims and the Hindus in this country
have their own personal laws which are based upon their respective religious tests.12 It is
submitted that the court cannot examine the constitutional validity of practices of
marriage, maintenance or divorce in Muslim law since Part III of the Constitution does
not imbibe personal laws of the parties.13
i. Personal laws cannot be challenged as being violative of Part III of the Constitution
15. It is humbly submitted that the term ‘personal laws’ has nowhere been defined in the
Constitution. On matters of personal issues, Muslims are governed by the Muslim
Personal Law (Shariat) Application Act,1937. It is contended that though it came into
existence before commencement of the Constitution but cannot be included even within
the meaning of Article 13(3)(b).
16. The Hon’ble Court in State of Bombay v. Narasu Appa Mali14 has observed that since the
issues related to personal law fall under Entry 5 of the Concurrent List of the Seventh
Schedule, it is competent only for the State or the Legislature to legislate upon them. The
Court further observed that the framers of the Constitution did not intend to include
personal laws within the expression “laws in force” since they did not want them to be
challenged with respect to fundamental rights and they purposely left it to the scrutiny of
the legislature and not judiciary. Considering this view, the constitutional validity of the
practices of marriage, divorce and maintenance in Muslim personal law cannot be
challenged.15
17. Further, it is contended that the expression ‘a custom or usage’ in Article 13, would not
include faith of religious denominations, embedded in their ‘personal law’.16 Section 112
of Government of India Act, 1915 made a clear distinction between ‘personal laws’ and
‘customs having force of law’ and thus the framers of the Constitution consciously
omitted personal laws.17
12
The State of Bombay vs Narasu Appa Mali, AIR 1952 Bom 84, (1951) 53 BOMLR 779, ILR 1951 Bom 775
13
Krishna Singh v. Mathura Athir(1981) 3 SCC 689.
14
AIR 1952 Bom. 84
15
Supra note 1
16
Shayara Bano v. Union of India and Others (2017) 9 SCC 1
17
Youth Welfare Federation v. Union of India 1996 (4) ALT 1138
15
18. Therefore, it is humbly submitted by the Appellate that the foundational source of
personal laws are their respective scriptures and edicts. The Mohammedan Law is
essentially founded on the Holy Quran and thus cannot fall within the purview of “laws
of force” as provided in Article 13(3)(b) and hence its validity cannot be tested as against
fundamental rights in part III of the Constitution.
ii. Religious Practice have protection of Article 25
19. It is humbly submitted that Art. 25(2) provides that where there is conflict between
religious practice and the social reform, religion must yield.18 The social reform is to be
brought gradually in the community keeping in view that such community is ready for the
reform.
20. Further, it is submitted that practices which stands in the way of country’s progress needs
to be eliminated only if it does not form the essence of religion. It does not extend to the
basic and essential practices of religion, which is guaranteed by Art. 25(1) itself.19 The
protection of Art. 25(1) is provided to that ‘practice’ which is essential or mandatory as
distinguished from optional20 religious practice. The practice of polygamy is provided in
the Holy Quran which forms the authoritative text of Mohammedans and cannot be
affected on the name of social reform.
18
DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (8th Edition 2009)
19
Saifuddin v. State of Bombay, AIR 1962 SC 853
20
State of W.B. v. Ashutosh, AIR 1995 SC 464
16

FUNDAMENTAL RIGHTS OF THE CONSTITUTION OF
MAGICLAND?
21. It is humbly submitted by the Appellant that, the practice of polygamy has not violated
Article 14, 15 and 21 of the Magicland Constitution. As the system of polygamy is the
integral part of the Muslim religion, it cannot be declared as unconstitutional and the
constitution has given the rights to freedom of conscience and free profession, practice
and propagation of religion guaranteed under Article 25 of the Constitution, thus the
system of polygamy is not violative of Fundamental Rights of the Constitution. As
Muslim Personal Law (Shariat) Application Act, 1937 recognizes and validates the
system of polygamy, thus it does not infringe the Fundamental Right of the Constitution.
A. System of polygamy an integral part of the Muslim religion.
1. It is humbly submitted that, the Appellant has not violated Article 1421, Article 1522 and
Article 2123of the Constitution. According to Mohammedan law polygamy is permitted
for Muslim males, so the practice of polygamy here has not violated the Fundamental
Rights of the Magicland Constitution.
2. It is observed 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, which in subject to the Constitution, in so far as it recognizes and
validates the system of polygamy. Thus, it is submitted from the above view that, the
system of polygamy is repugnant to the Fundamental Rights of the Constitution.
3. The system of polygamy has long back traced to seventh century, Muslim Personal Law,
insofar as it allows Muslim men to have multiple wives. It is well settled that Muslim
21
The state shall not deny to any person equality before law or the equal protection of law.
22
Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
23
Protection of life and personal liberty.
17
Personal Law permits the practice of polygamy. The Holy Quran permits Muslim men to
marry up to four women.
4. Muslim law permits polygamy but has never encouraged it. The sanction for polygamy
among Muslim is traced to the Koran IV. 324. Polygamy being the integral part of the
religion of Muslims provided by the Holy Quran and thus being essential to the religion
of Islam. Therefore, the system of polygamy has not violated the Fundamental rights of
respondent. Therefore, whether the ritual, observance, ceremony, or other activities,
which has been interfered with, is ‘an integral part’ of that religion.25 The protection must
be confined to such religious practices as are an essential and integral part of it and no
others.26
B. Religious practice has protection under Article 25.
5. It is humbly submitted that the system of polygamy has not violated the Fundamental
Rights of the respondent, as polygamy is the religious practice, however the constitution
has given the freedom of conscience and free profession, practice and propagate of
religion under Article 25 of the constitution.27 Thus, it is observed that it does not violate
the Fundamental Rights.
6. It is humbly submitted that the system of polygamy is the religious practice and essential
in Muslim religion and falls under Article 25(1) of the Magicland Constitution. It has
been held by our Supreme Court that in order to get the protection of Article 25(1) the
‘practice’ in question must be essential.28
7. It was observed by the Hon’ble court that, the question is not whether a particular
religious beliefs or practice appeals to our reason or sentiment, but whether the belief is
genuinely and conscientiously held as a part of the profession or practice of the religion,
our personal views and reactions are irrelevant, if the belief is genuinely and
conscientiously held, it attracts the protection of Art. 25.29 It is submitted that, in the
present case the system of polygamy is genuinely and conscientiously held as a part of
24
Mulla on MOHAMMEDAN LAW, (3RD Edition).
25
Govindlaji v. State of Rajasthan, AIR 1963 SC 1638 : (1964) 1 SCR 561 : (1964) 2 SCJ 715 (paras. 58-59);
Ramanuja v. State of T.N., AIR 1972 SC 1586 : (1971)3 SCR 815 : (1972) 2 SCC 11(para.12) .
26
Durgah committee v. Hussain, AIR 1961 SC 1402: (1962) 1 SCR 383: 1961 (1) CrlJ 747 (para 33).
27
Constitution of Magicland, 1950.
28
Quareshi v. state of Bihar, AIR 1956 SC 731: 1959 SCR 629 (739-40) CB.
29
Bijoe Emmanuel vs state of Kerala, AIR 1987 SC 748: (1986) SCR 518 : (1986) 3 SCC 615.
18
the practice of Muslim religion and thus, polygamy attracts the protection of Article 25 of
the Constitution.
8. The Hon’ble Court in Ratilal v. State of Bombay30, “Religious practices or performance
of acts in pursuance of religion belief areas much a part of religion as faith or belief in
particular doctrines… No outside authority has any right to say that these are secular
activities”.
9. It is further observed that, Art. 25 is an Article faith in the Constitution incorporated in
recognition of the principle that the real test of democracy is the ability of even an
insignificant minority to find its identity under the country’s constitution. Wherein, it was
observed that “what constitutes an essential part of the religion is primarily to be
ascertained with reference to the doctrine of that religion itself and the court cannot say
that a belief or practice is not a part of religion”.31
10. Everyone shall have the right to freedom of thought, conscience and religion. This right
shall include freedom to have or to adopt a religion or belief of his choice, and freedom,
either individually or in community with others and in public or private, to manifest his
religion or belief in worship, observance, practice and teaching.32
11. Everyone has the right to freedom of thought, conscience and religion; this right includes
freedom to change his religion or belief, and freedom, either alone or in community with
others and in public or private, to manifest his religion or belief in teaching, practice,
worship and observance.33
C. Protection of polygamy under section 494 of Indian penal code.
12. In India, under the general law of the land, contracting of a bigamous marriage by either
spouse during the lifetime of the other spouse of a subsisting marriage has been made a
criminal offence since 1860, punishable under section 494 of Indian Penal Code,34 this
section imposes a condition which has so far exempted from its application to
30
1954 AIR 388, 1954 SCR 1035
31
The Commissioner Of Police & Ors vs Acharya Jagdishwarananda Avadhuta, AIR 2004 SC 2984: (2004) 12 SCC
1005
32
Article 18 of International Covenant on Civil and Political Rights, 1966.
33
Article 18 of Universal Declaration of Human Rights, 1948.
34
Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its
taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a
term which may extend to seven years, and shall also be liable to fine.
19
Mohammedan males, Because the Shariat permits polygamy marriages upto four wives in
the case of Muslim males.35
13. It is humbly submitted that, the practice of polygamy by Mohammedan males in Muslim
religion is having immunity under section 494 of IPC, this section applies to all Hindus,
Christians and Parsis whether or female. But in case of Muslim it applies only to females
but not to males because under Muslim personal law a male can have four wives at a
time, but a female is not permitted to have more than one husband at a time.36
3. WHETHER REFUSING TO BEGET CHILDREN FORMS VALID

GROUND FOR DIVORCE, AMOUNTING TO MENTAL CRUELTY?
A. INEQUITABLE TREATMENT
14. It is humbly submitted that practicing polygamy by husband in the Muslim community
leads to inequitable treatment by him to treat both the wives in an equal manner.
Equitable treatment in each and every aspect of family is the most difficult task for the
husband. In the instant case, Mr. Sulthan treated both the wives with same love and
affection although it is a very tedious job for him. Though Right to Equality is provided
under Article 14, but in practicality it is not absolutely enforced. The Constitution
mentioned certain reasonable restrictions under the provided Article.
15. Polygamous marriage in Islam has not enforced any obligatory Fundamental Right upon
husband to compel the first wife to share his consortium with the other wife in all
circumstances37. It is submitted that Mr Sulthan has no obligatory duty towards second
wife to treat her same as first wife and he has the legal right to marry second wife even
while the first marriage subsists.38
16. Under the Section 2(viii)(f) of Dissolution of Muslim Marriages act 1939, if the husband
has more than one wife and if he does not treat her equitability in accordance with
injunction of Quran, it forms a valid ground for divorce. The word “does not treat
equitably” being a ground for granting a decree for dissolution of marriage is applicable
35
DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF THE INDIA (8TH EDITION 2009).
36
DURGA DAS BASU, INDIAN PENAL CODE (9TH EDITION).
37
Mulla on Mohammedan law 3rd edition: pg 216
38
Commentary on Muslim law in India by Manzar Safeed
20
to material facts. But its not the best way to considering the immaterial issues like
begetting children, sharing of love and affection with caring etc.39
17. It is further submitted that the Quranic injunction regarding treating both the wives in an
equal manner has to be understood in the perspective of prevalent unrestricted polygamy
and in the context of battle in which most male perished, leaving many females or
orphans and that the holy prophet himself recognized the difficulty of treating two or
more wives with equality40. In ancient time, Quran particularly mentioned that treating
more than one wife equally is difficult. In modern context, treating two wives inequitably
cannot be a sufficient ground for granting divorce.
18. In modern society to treat Muslim woman equitably it’s impossible for any husband with
several wives to cart all of them around. he must select one among them to share life.
thus, making impartial treatment in polygamy virtually impossible under modern
condition. formerly, a Muslim husband could bring a second wife into the household
without necessarily meaning any insult or cruelty to the wife.41
B. BEGETTING CHILDREN
19. It is submitted that refusal to beget children from Ms. Sufia isn’t a valid ground for
divorce under Dissolution of Marriage Act,1939. Begetting children is considered as
fundamental aspect of every marriage. But consent of both husband and wife is very
important. Refusing to beget children without proper reason is considered as sufficient
ground for divorce42. But it is mentioned in the facts that Mr.Sulthan does not want to
beget children through Ms.Sufia because his first wife Ms.Sadia conceived. This can be
considered as a valid reason for his contention of refusing to beget children through Ms.
Sufia.
20. Practicing family planning considered as human rights, obligation towards every country
and its government and policy maker. In this conference it particularly stated that
“parents have a basic human right to determine freely and responsibly the number and
spacing of children”.43 Practicing family planning from Mr. Sulthan considered as his
human rights and he has right to determine number of children within a family
39
Opinion of Justice Iqbal Ahmed Ansari
40
Shahulameedu v. Subaida Deevi 1970
41
Principles of Mohomedan law: Dinshah Fardunji Mulla
42
Sumar Gosh v. Jaya Gosh MANU/SC/1386/2007
43
International Conference on Human Rights 1968
21
C. NON-PERFORMING OF MARITAL OBLIGATION DOES NOT AMOUNT

TO CRUELTY
21. Cruelty is defined as 'the quality of being cruel; disposition of inflicting suffering; delight
in or indifference to another's pain; mercilessness; hard-heartedness'44. In the case45 the
Punjab and Haryana High Court stated that “while determining mental cruelty in
matrimonial disputes, the court should consider nature of cruel treatment and nature of
conduct and its impact on the mind of the spouse”. In the instant case, Mr Sulthan treated
both the wives with same love and affection and he did not intend to cause any form of
cruelty whether it may be in physical or mental. Cruelty and love and affection are
considered as repugnant to each other.
22. It is submitted that while measuring cruelty there is no strait jacket formula to define
mental cruelty. Every act or conduct of one spouse which makes the other spouse
unhappy or miserable cannot amount to cruelty46. The conduct of Mr Sulthan not to have
any more children, which makes Ms. Sufia unhappy resulting to mental cruelty is not the
best way to determine cruelty. Mr Sulthan’s moody, conduct, whimsical, mean, stingy,
selfish, boorish, irritable, inconsiderable, irascible etc. will not amount to cruelty.
While determining what constitute cruelty, regards must be had to the circumstances of
each particular case, keeping away in view the physical and mental condition of parties
and their character and social status.47
23. It is further submitted that the concept of mental cruelty in this particular case cannot be
compared or referred by other matrimonial cases because in the fact and circumstances it
clearly states that Mr. Sulthan treated both the wife with same love and affection, and he
has not done any type of cruel act on the second wife. In the case of Bhagat v. Bhagat48
the Hon’ble Supreme Court defined mental cruelty that “what’s cruelty in one case may
not amount to cruelty in another case. It is a matter to be determined in each based on
conduct of spouses and fact and circumstances of that case.”
44
Meaning of cruelty oxford dictionary
45
Smt Monika Guptha v. Jithendra Gandhi
46
Muslim law; Rakesh Kumar Singh .pg;141
47
Muslim law of India by Tahir Mahamood ,2002. pg 80
48
V. Bhagat v. D. Bhagat, AIR1994 SC 710
22
24. In the present case, no effort was made by Ms. Sufia to appoint arbitrator to resolve
dispute between them before filing petition to the Family Court. The Quran declares that
“If u fear a breach between them twain,
D. APPOINTMENT OF ARBITERS
25. It is submitted that the dissolution of marriage among Muslims are ruled by their Holy
text. Arbiters are to be appointed for dissolution of disputes between husband and wife.
One from his family and the other from hers;
If they wish for peace, Allah will cause their conciliation: For Allah hath full knowledge,
and is acquainted with all things”49
26. When a split arises among spouses effort should be made for reconciliation, by
appointing one arbitrator from the people of wife and one arbitrator from the people of
the husband and permits separation consequent upon the failure of such effort 50
27. In the case of Gaurav Nagpal v. Sumedha Nagpal51 the Hon’ble Supreme Court indicated
that “people rushing to court for breaking up marriage should come as last resort, and
unless it has an inevitable result, court should try to bring about conciliation. The
emphasis should be in saving marriage and not to breaking it”
49
Sura IV ayat 35
50
Quran, verse 35 ,128 and 130 of chapter IV
51
AIR 2009 SC,557
23
PRAYER
Wherefore, in the light of the authorities cited, issues raised and arguments advanced, it is
humbly requested that this Hon’ble Court may be pleased to adjudge and declare:
1. That the appeal petition is maintainable under Article 132, 133 r/w 134A of the
Constitution of Magicland, 1950.
2. That the system of polygamy is not violative of Part III of the Constitution of
Magicland,1950.
3. That refusing to beget children does not amount to mental cruelty, thus not a valid ground
for divorce.
And pass any such order, writ or direction as the Hon’ble Court deems fit and proper, for
this Appellant shall duty bound pray.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
____________________________________
____________________________________
24
COUNSEL FOR THE APPELLANT
25

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SHRI.

BEFORE THE HON’BLE SUPREME COURT OF MAGICLAND

UNDER ARTICLE 132, 133 r/w 134A

OF THE CONSTITUTION OF MAGICLAND

-IN THE MATTER OF –

SUBMISSION BEFORE HON’BLE JUDGE OF SUPREME COURT OF MAGICLAND

MEMORIAL ON BEHALF OF APPELLANT

TABLE OF CONTENTS __________________________________________________2-3

1. Appeal filed before this court is maintainable___________________________12-14

CASE NAMES PARA

III. INTERNATIONAL CONVENTIONS.

8. MUSLIM LAW and the CONSITUTION, A. M. Bhattacharjee (2nd edition).

THE APPELLANT HUMBLY SUBMITS THIS MEMORANDUM BEFORE THE HON’BLE

IT SETS FORTH THE FACTS, CONTENTIONS AND ARGUMENTS IN THE PRESENT

Magicland is a Sovereign, Secular, Democratic Republic which provides

II. DIVORCE PETITION BEFORE FAMILY COURT

III. APPEAL BEFORE HIGH COURT

IV. APPEAL BEFORE SUPREME COURT

1. WHETHER THE APPEAL FILED BEFORE THIS COURT IS

2. WHETHER THE PRACTICE OF POLYGAMY IS VIOLATIVE OF

3. WHETHER REFUSING TO BEGET CHILDREN FORMS VALID GROUND

1. WHETHER THE APPEAL FILED BEFORE THIS COURT IS

2. WHETHER THE PRACTICE OF POLYGAMY IS VIOLATIVE OF

3. WHETHER REFUSING TO BEGET CHILDREN FORMS VALID GROUND

I. WHETHER THE APPEAL FILED BEFORE THE SUPREME

constitutionality of polygamy among the Muslims. The practice of polygamy forms an

ii. Religious Practice have protection of Article 25

2. WHETHER THE PRACTICE OF POLYGAMY IS VIOLATIVE OF

A. System of polygamy an integral part of the Muslim religion.

3. WHETHER REFUSING TO BEGET CHILDREN FORMS VALID

C. NON-PERFORMING OF MARITAL OBLIGATION DOES NOT AMOUNT

ALL OF WHICH IS RESPECTFULLY SUBMITTED

COUNSEL FOR THE APPELLANT

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