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ASMA …PETITIONER
V.
UNION OF INDIA & MUKHTAR …RESPONDENTS
with
IN SLP NO. OF 20
MUKHTAR …APPELLANT
V.
UNION OF INDIA …RESPONDENT
INDEX OF AUTHORITIES....................................................................................................................................... IV
ISSUES RAISED......................................................................................................................................................... IX
SUMMARY OF ARGUMENTS.................................................................................................................................. X
PLEADINGS.................................................................................................................................................................. 1
I. Talaq-e-Biddat doesn’t fall under the purview of ‘Law’ as per Art. 13........................1
III. Promulgation of the Impugned Ordinance is in violation of Art 123 of the Constitution
……………………………………………………………………………………….2
IV. The Impugned Ordinance is in violation of fundamental rights guaranteed under the
Constitution............................................................................................................................3
B. The Ordinance fails to satisfy the test of arbitrariness under Art. 14......................4
C. The Impugned Ordinance violates the right to life under Art. 21............................5
PRAYER...................................................................................................................................................................... XI
LIST OF ABBREVIATIONS
CONSTITUTIONAL PROVISIONS
ISSUE 1: WHETHER OR NOT TALAQ-E-BIDDAT FALLS UNDER THE PURVIEW OF ‘LAW’ AS PER
ART. 13?
[¶4.] Art. 257 r/w Art. 268 guarantees freedom to practice ones religion. The State cannot
interfere with the established customary religious rights to perform their function and
ceremonies9 as long as it formulates an ‘essential religious practice’.10 Therefore the
protection is extended to religious practice and affairs in matters of religion which form an
integral part of the religion itself.11
[¶5.] Further, determination of the same depends on understandings and beliefs regarded by
1
Art. 13, Constitution of Pindiana.
2
State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84; Srinivas Aiyar v. Saraswathi Ammal, AIR 1952
Mad 193; Ram Prasad v. State of U.P, AIR 1957 All 411.
3
Krishna Singh v. Mathura Ahir, AIR 1980 SC 707; P.E. Mathew v. UOI, AIR 1999 Ker 345.
4
Ahemdabad Women Action Group v. UOI, (1997) 3 SCC 573.
5
The Muslim Personal Law (Shariat) Application Act, 1937.
6
Shayara Bano v. UOI, (2017) 9 SCC 1, Para 96.
7
Art. 25, Constitution of Pindiana.
8
Art. 26, Constitution of Pindiana.
9
Gulam Abbas v. State of U.P, AIR 1981 SC 2198.
10
H.H.Srimad Perarulala v. State of T.N, AIR 1972 SC 1586, Pg 1593.
11
Shri Venkatramana Devaru v. State of Mysore, 1958 SCR 895.
community practicing that religion.12 Additionally a ‘practice’ to be religious need not be
adopted by all member of a religion and it cannot be denied if it is shown to be performed as
an article of faith by a religious denomination.13
[¶6.] It is also to be noted that the very concept of essentiality is not by itself a
determinative factor; but is one of the circumstances to be considered in determining whether
a practice is an integral part of that religion or not.14 Due to these factors, Courts on
numerous occasions have denied intervening in matters relating to personal laws- both
codified and uncodified, and held that such matters pertained to legislative action.15
[¶7.] It is submitted that talaq-e-biddat, is a 1400 years16 old practice and is followed by
Hanafi School Muslim which is the largest sect of Sunni Muslims in India17and the practice
of the same holds good in law.18 Thus, talaq-e-biddatis an integral part of religious practice
followed by Sunni Sect of Muslim and hence any interference by Court shall infringe the
freedom of religion.
[¶8.] The President of Pindiana is empowered to promulgate ordinances when the Houses of
the Parliament are not in session, if she is satisfied about the existence of an emergent
situation19 requiring ‘immediate action.’20 In order to challenge the validity of the ordinance, a
petitioner is required to make only a prima facie case showing non-existence of
circumstances necessary for promulgating an ordinance, following which a burden is cast on
the executive to establish such circumstances.21
[¶9.] It is submitted that talaq-e-biddat has been a part of Islam since centuries and there
has been no legislation for criminalizing it, until now. Given that a challenge to its
constitutionality was sub-judice before this Hon’ble Bench,22 it can be said that prima facie,
there was no need for an immediate action of promulgating the Impugned Ordinance.
Therefore, unless the
12
Ratilal Panachand Gandhi v. State of Bombay, AIR 1954 SC 388, Para 14.
13
Durga Das Basu, COMMENTARY ON THE CONSTITUTION OF INDIA, 3462 (8th edn., Vol. 4, 2007).
14
A.S. Narayana Deekshitulu v. State of A.P, (1996) 9 SCC 548.
15
Ahmedabad Women Action Group. v. UOI, (1997) 3 SCC 573, Para 11; Maharshi Avdhesh v. UOI (1994) Supp
(1) SCC 713.
16
Shayara Bano v. UOI, (2017) 9 SCC 1, Para 96.
17
Abu Umar Faruq Ahmad, THEORY AND PRACTICE OF MODERN ISLAMIC FINANCE, 77-78 (1st edn., 2010).
18
D.F. Mulla, PRINCIPLES OF MUHAMMADAN LAW, 725 (1s tedn., 2011).
19
R.K Garg v. UOI, (1981) 4 SCC 675.
20
Art. 123, Constitution of Pindiana.
21
A.K Roy v. UOI, (1982) 1 SCC 271; Gyanendra Kumar v. UOI, AIR 1997 Del 58, Pg. 61.
executive discharges the burden cast on it, it must be held that the promulgation of the
Impugned Ordinance is violative of Art. 123 and hence unconstitutional.
[¶10.] It is submitted that the Impugned Ordinance violates the fundamental rights
guaranteed by the Constitution, for the reasons that [A] it violates the principle of non-
discrimination under Art. 14 and 15; [B] it fails to satisfy the test of arbitrariness under Art.
14 and [C] it violates the right to life under Art. 21.
[¶12.] Unfavourable treatment by legislation only on the ground of religion shall be hit by
Art. 15(1).23 It is submitted that when S. 3 of the Impugned Ordinance criminalizes the
pronouncement of talaq-e-biddat by a Muslim husband,24 it imposes criminal liability for the
act of divorce as allowed under the respective personal law, only on Muslim men. There
being no other valid ground for such discrimination, S. 3 should be struck down as
unconstitutional.
[¶13.] Equal protection of laws under Art. 14 means according equal protection of laws to all
those who are similarly situated.25 It disallows discrimination between two persons if their
position is same/similar as regards the subject matter of the legislation.26
[¶14.] In the present case, S. 7 classifies pronouncement of talaq-e-biddat as a cognizable
23
Daniel Latifi v. UOI, (2001) 7 SCC 740; State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75.
offence.27 While it is in the nature of a matrimonial offence, all other matrimonial offences
under the Indian Penal Code, 1860 are classified as non-cognisable.28 Hence, in effect, while
all persons accused of matrimonial offences are similarly situated they are not provided equal
protection of laws in terms of cognisability of their offences. Therefore, the provision is
violative of Art. 14.
B. The Ordinance fails to satisfy the test of arbitrariness under Art. 14.
[¶15.] Art. 14 of the Constitution aims to “strike at arbitrariness in State action”29 as acts of
arbitrariness are inherently unequal.30 A law is considered manifestly arbitrary when it is
“capricious, irrational, disproportionate, excessive and/or without adequate determining
principle.”31 Therefore, if a legislation32 or ordinance33 is found to be manifestly arbitrary, it
would be struck down for not confirming to the standards of Art. 14. It is submitted that the
Ordinance is manifestly arbitrary for the reasons that [1] S. 4 of the Impugned Ordinance has
the effect of criminalizing an act that is declared to be void as per S. 3 and [2] Impugned
Ordinance has the effect of criminalizing an act that is essentially civil in nature.
S. 4 OF THE IMPUGNED ORDINANCE HAS THE EFFECT OF
CRIMINALIZING AN ACT THAT IS DECLARED TO BE VOID AS PER
S. 3
[¶16.] The ‘harm principle’ in criminal jurisprudence justifies criminalizing only those
conducts that cause harm or create an unacceptable risk of harm to others.34 While S. 3 of the
Ordinance explicitly nullifies a pronouncement of talaq-e-biddat by declaring it as void, S. 4
makes the same void act punishable.35 However, if the talaq is void and the marriage
continues to subsist between the parties, there is no legal harm caused to the wife. Therefore,
imposing criminal sanctions when there is no actual harm caused reflects the lack of regard to
a determined principle of criminal jurisprudence, making the provision manifestly arbitrary.
27
S. 7, The Muslim Women (Protection of Rights on Marriage) Second Ordinance, 2019.
28
Schedule I, Code of Criminal Procedure, 1973.
29
Maneka Gandhi v. UOI, (1978) 1 SCC 248, Para 7 (Bhagwati J.).
30
E.P Royappa v. State of T.N, (1974) 4 SCC 3, Para 8 (Bhagwati J.); R.D Shetty v. International Airport
Authority of India, (1979) 3 SCC 489.
31
Shayara Bano v. UOI, (2017) 9 SCC 1, Para 95, (Nariman J.); Navtej Singh Johar v. UOI, (2018) 10 SCC 1.
32
Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722, Para 16; A.P Dairy Development Corporation
2.IMPUGNED ORDINANCE HAS THE EFFECT OF CRIMINALIZING
AN ACT THAT IS ESSENTIALLY CIVIL IN NATURE
[¶17.] In Joseph Shine,36 it was held that criminal sanctions are justified in public wrongs, but
not in private wrongs. Criminalizing an act entails curtailment of individual autonomy and thus
requires stronger justification.37 Minimalist approach in criminalization of offences must be
adopted so that criminal law is used as the last resort.
[¶18.] In the present case, the act that is criminalized is essentially a form of divorce which is
a private matter falling in the realm of civil law. Secondly, the object of the Impugned
Ordinance, i.e., protection of rights of Muslim women is attainable even in the absence of a
penalizing provision. The step taken in the Impugned Ordinance is unnecessary and grossly
disproportionate to the object sought to be achieved by it. Such ‘unprincipled criminalization’
being manifestly arbitrary is violative of Article 14.
[¶19.] It has been held that imposing criminal sanctions that breaches the realm of privacy
existing in a matrimonial relationship is violative of Art.21.38 Further, expression of choice 39
and freedom of choosing a life partner40 are held to be essential part of right to liberty and
dignity41. Moreover, the right to dissolve a marriage is a part of fundamental right under Art.
21.42
[¶20.] In the present matter, the Impugned Ordinance imposing a criminal penalty in case of
marital discord serves contrary to the object of the Impugned Ordinance as it may cause
destitution of marriage rather than preserving it. Also, the detention of the husband while the
marriage still exists stands inconsistent with the conjugal rights43 inherent in a marital
relationship.
[¶21.] Furthermore, the Impugned Ordinance serves no purpose except for imposing criminal
sanctions on a particular community as law for maintenance44 and custody of child45 already
exists. Thus, the Ordinance violates the right of life and dignity of a Muslim marriage and
hence violates Art. 21 of the Constitution.
36
Joseph Shine v. UOI, (2019) 3 SCC 39, Para 17 (Malhotra J.).
37
Ibid.
38
Ibid
39
National Legal Services Authority v. UOI, (2014) 5 SCC 438.
40
Shakti Vahini v. UOI, AIR 2018 SC 1601.
41
K.S. Puttaswamy v. UOI, (2017) 10 SCC 1, Para 108.
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. Talaq-e-biddat doesn’t fall under the purview of ‘Law’ as per Art. 13 and thus not
susceptible to the conditions laid down in Part III.
II. A restraint in the practice of talaq-e-biddat is a violation of freedom of religion.
III. Promulgation of the Impugned Ordinance is in violation of Art. 123.
IV. Impugned Ordinance is in violation of fundamental rights.
Also, pass any other order that it may deem fit in the favour of the RESPONDENT in the
light of equity, justice and good conscience.
For this act of Kindness, the RESPONDENT shall duty bound forever pray.
Place: Chind sd /-
Dated: Counsel for Respondent