39TH ALL INDIA MOOT COURT COMPETITION

DR. AMBEDKAR GOVERNMENT LAW COLLEGE, PUDUCHERRY, 2022.

22- 24 APRIL, 2022.
REGISTER NO : 319A0075

DR. AMBEDKAR GOVERNMENT LAW COLLEGE, THIRUVALLUR, 2022

IN THE HON’BLE

SUPREME COURT OF INDIA

IN THE MATTER OF

i) MOHD.AHMED KHAN (APPELLANT)

Vs.

SHAH BANO BEGUM (RESPONDENT)

MEMORANDUM ON BEHALF OF THE APPELLANTS

COUNSEL FOR THE APPELLANTS

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MEMORANDUM ON BEHALF OF THE APPELLANTS
 TABLE OF CONTENTS

S.NO PARTICULARS PAGE NO.

1. LIST OF ABBREVIATIONS 3

2. TABLE OF AUTHORITIES 4

3. STATEMENT OF JURISDICTION 6

4. STATEMENT OF FACTS 7

5. STATEMENT OF ISSUES 8

6. SUMMARY OF ARGUMENTS 9

7. ADVANCED ARGUMENS 10
ISSUE I.Whether Section 125 of the Code Of Criminal Procedure is
concerned with Muslims or not?
ISSUE II. Whether the amount of Mehr given by the husband on divorce is
adequate to get the husband rid and is liable to maintain his wife or not
ISSUE III. whether Uniform Civil Code applies to all religions or not?

8. PRAYER 14

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MEMORANDUM ON BEHALF OF THE APPELLANTS
 1. LIST OF ABBREVIATIONS

HON’BLE Honorable

AIR All India Report

PIL Public Interest Litigation

W.P Writ Petition

W.R. With respect to

i.e., That is

SCC Supreme Court Cases

SCR Supreme Court Reports

UDHR Universal Declaration of Human Rights

Vs Versus

SUPL. Supplementary

WPA Wildlife (Protection) Act

SC Supreme Court

TRIPS Trade-Related Aspects of Intellectual Property

Rights
DOS Date of separation

DOM Date of marriage

FCS Family court services

FIR First Information Report

MSA Marital Settlement Agreement

SP Separate Property

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 2. TABLE OF AUTHORITIES

LEGISLATIONS REFERRED

1.THE CONSTITUTION OF INDIA,1950

2.THE CODE OF CRIMINAL PROCEDURE, 1973.

3.THE MUSLIM PERSONAL LAW(SHARIAT) APPLICATION ACT,1937.

4.THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT,1986

CASES REFERRED

1.Bai Tahira v. Ali HussainFidalli Chothia & ANR [(1979) 2 S.C.C.316]

2.Fuzlunbi v. K. Khader Vali and others [(1980) 4 S.C.C.125]

3.Mst Jagur Karur &ANR V. Jaswant Singh [A.I.R.1963 S.C.1521]

4.Nanak Chand v. ShriChandra Kishore Agarwala & others [A.I.R.1970 S.C.446]

5.Hamira Bibi v. Zubaida Bibi [A.I.R. 1916 P.C.46]

6. Syedsabir Husain v. Farzand Hasan [A.I.R.1938 P.C.80.]

7.Sarla mudgal v union of india [19]1995

8.K.Vimal v. k.Veeraswamy 1991 SCR (1) 904

BOOKS REFERRED

1.The Constitution of India, Bare Act 2017, Universal Law Publications

2.THE CODE OF CRIMINAL PROCEDURE BARE ACT 2021,Law & Justice Publication

3.MARRIAGE AND DIVORCE LAWS BARE ACT 2019 Universal Law Publication

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MEMORANDUM ON BEHALF OF THE APPELLANTS
JOURNALS REFERRED

1. All India Report (AIR)

2. Supreme Court Cases (SCC)

3. Supreme Court Reports (SCR)

WEBSITES LINK

1.http://www.indiankanoon.org/

2.http://www.supremecourtonline.com/

3.http://www.advocatekhoj.com/

4.https://www.casemine.com/

5.https://www.legalserviceindia.com/

6.https://blog.ipleaders.in/

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 3. STATEMENT OF JURISDICTION

The Counsel for the RESPONDENT, representing and endorsed the pleadings before the

Honorable Supreme Court of India. The petitions invoke its writ jurisdiction under

Article 32 of the Constitution of India in which the Hon‟ble court has the
Jurisdiction.
This Memorandum is sets forth the facts and the laws on which the claims are based
on the contentions and arguments.

Article 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

(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2)

(4) The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution.

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 4. STATEMENT OF FACTS

1 .MOHD. AHMED KHAN, who was an well known advocate in INDORE married to
SHAH BANO ,1932. They were the parents of 3 sons and 2 daughter in total they have
5 children.

2.After 14 years of their marriage Shah Bano's husband married another women who was
younger than him. In 1975, when Shah Bano age was of 62 years,she was disowned by
her husband and was thrown out from her matrimonial home along with her children.

3 .In 1978, she filed an appeal in the presence of Judicial Magistrate of Indore, because she was abandoned
from the maintenance of Rs. 200 per month, which was guaranteed to be provided by him. She demanded
Rs. 500 per month as maintenance.

4.In November 6th,1978, he gave divorce to his wife Shah Bano by articulating or
uttering "Triple Talaq and it was irrevocable.So he used it as a defence to not pay maintenance.

5.The lower court gave the judgement in the favour of Shah Bano and directed Mohd
Ahmed to give the maintenance of rupees 25 per month again Shah Bano appealed
in high court as to alter the amount of maintenance decided by the lower court and
the The high court gave the judgement in which it increased the amount of maintenance
from rupees 25 to rupees 179.20 per month.

6.Ahmed Khan challenged this decision by way of a Special Leave Petition in the Apex Court.

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 5 .STATEMENT OF ISSUES

ISSUE I: Whether Section 125 of the Code Of Criminal Procedure is

concerned with Muslims or not?

Issue II: Whether the amount of Mehr given by the husband on divorce is
adequate to get the husband rid and is liable to maintain his wife or not?

Issue III: whether Uniform Civil Code applies to all religions or not?

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 6. SUMMARY OF ARGUMENTS

Issue I: Whether Section 125 of the Code Of Criminal Procedure is concerned with Muslims or not?
Maintenance of wife under Muslim law has been provided under the Muslim Women
(Protection of Rights on Divorce) Act, 1986. The Act states that a divorced Muslim
woman is entitled to maintenance in the following cases:

During the iddat period, reasonable and fair maintenance has to be paid to the wife. Mehr
agreed at the time of marriage has to be given back

The divorced woman is entitled to a reasonable and fair amount of maintenance for herself during the Iddat
period from her former husband

Issue II: Whether the amount of Mehr given by the husband on divorce is adequate to get the husband rid and is
liable to maintain his wife or not?

The concept of mahr in Islamic law is beneficial for the woman. It ensures financial security so that she is not left
helpless after the death of the husband or after the termination of the marriage.

Under the “Women (Protection Of- Rights On Divorce) Act, 1986the protection of the rights of Muslim women who
have been divorced by Her husband Section (a) of the said Act says that divorced woman is entitled to have a
reasonable and fair provision and maintenance from her former husband, and the husband must do so within the
period of idda and his obligation is not confined to the period of iddat.

A reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former
husband.

Issue III : whether Uniform Civil Code applies to all religions or not?

As a Muslim we following our customs under muslim law,Uniform civil code violates
our personal law .

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 7.ADVANCED ARGUMENTS

Issue 1: Whether Section 125 of the Code Of Criminal Procedure is concerned with
Muslims or not?

Maintenance of wife under Muslim law has been provided under the Muslim Women (Protection of Rights on
Divorce) Act, 1986. The Act states that a divorced Muslim woman is entitled to maintenance in the following cases:
During the iddat period, reasonable and fair maintenance has to be paid to the wife. Mehr agreed at the time of
marriage has to be given back
The divorced woman is entitled to a reasonable and fair amount of maintenance for herself during the Iddat period
from her former husband
Maintenance during Subsistence of Marriage
Under Muslim law, a husband is obliged to maintain his wife and family, and the term maintenance signifies the
amount he is liable to pay for the same. The term used for maintenance under Muslim Law is is called nafaqa and
it comprehends food, raiment and lodging, The wife is entitled to maintenance from husband, despite the fact that
she has means to maintain herself. In addition to this, the marriage contract may stipulate payment of special
allowances by the husband, and in presence of these, it becomes the obligation of the husband to pay these to the
wife. Such allowances are called kharch-e-pandan, guzara, mewa khore, etc. This can be claimed as a right.

Mst. Zohara Khatoon V. Mohd. Ibrahim in India

1. In the instant case Section 127 does not apply at all because the respondent has not filed any
application for cancellation of the maintenance on the grounds mentioned in Section 127(3)(b) of
the 1973 Code but this case is squarely covered by Clause (b) of the Explanation to S.

125(i) of that Code as a result of which the appellant in the eye of law continues to be the wife of the
respondent, despite the decree for dissolution of marriage.

2. It is clear that the 1898 Code by virtue of S. 488 provided a summary remedy for awarding
maintenance to neglected wives irrespective of the caste, creed, community or religion to which they
belonged. Sections 488 and 489 were the corresponding provisions of the 1898 Code which were
couched almost in the same language as ss. 125 and 127 of the 1973 Code having some important
additions that have been made under the 1973 Code.

3. The Mohomedan Law on the subject was that where a woman governed by the Mohomedan Law
was awarded maintenance, the same would cease from the date of divorce given by the husband and
the completion of the period of Iddat.

4. Although a Mohomedan wife had a right to be awarded maintenance by the Magistrate under s.
488 of the old Code, the said right ceased to exist if she was divorced by her husband and had
observed the period of Iddat. This was the undoubted position of law under the 1898 Code as
amended by the 1955 Amending Act.

5. Clause (b) has made a distinct departure from the earlier Code in that it has widened the
definition of wife and, to some extent, over-ruled the personal law of the parties so far as
proceedings for maintenance under Section 125 are concerned. Under Clause (b), the wife continued
to be a wife within the meaning of the provisions of the Code even though she has been divorced by
her husband or has otherwise obtained a divorce and has not remarried. It follows, therefore, that
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the divorce resulting from the aforesaid dissolution of the marriage is also a legal divorce under the
Mohomedan Law by virtue of the statute (1939 Act).

6. Under the Mohomedan Law the commonest form of divorce is a unilateral pronouncement of
divorce of the wife by the husband according to the various forms recognised by the law. A divorce
given unilaterally by the husband is especially peculiar to Mohomedan Law. In no other law has the
husband got a unilateral right to divorce his wife by a simple declaration because other laws, viz.,
the Hindu Law or the Parsi Marriage and Divorce Act, 1936, contemplate only a dissolution of
marriage on certain grounds brought about by one of the spouses in a court of law.

7. A wife thus had a statutory right to obtain divorce from the husband through the court on proof of
the grounds mentioned in the Act. The Act provided for the wife an independent remedy which could
be resorted to by her without being subjected to a pronouncement of divorce by the husband. It is,
therefore, in the background of this Act that the words ‘has obtained a divorce from her husband’ in
clause (b) of the Explanation have to be construed. Thus the High Court in considering the effect of
these words seems to have over looked the dominant object of the statutory remedy that was made
available to the wife under the Act of 1939 by which the wife could get a decree for dissolution of
marriage on the grounds mentioned in the 1939 Act by petitioning the civil court without any overt
act on the part of the husband in divorcing her. The High Court also failed to consider the legal
consequences flowing from the 912 decree passed by the Court dissolving the marriage, viz., a legal
divorce under the Mohomedan law.

8. The interpretation put by the High Court on the second limb of clause (b) is not correct. This
seems to be borne out from the provisions of Mohomedan law itself. It would appear that under the
Mohomedan law there are three distinct modes in which a Muslim marriage can be dissolved and
the relationship of the husband and wife terminated so as to result in an irrevocable divorce.

9. It is, therefore, manifest that clause (b) of Explanation to S. 125 envisages all the three modes,
whether a wife is divorced unilaterally by the husband or whether she obtains divorce under the
mode numbers 2 and 3, she continues to be a wife for the purpose of getting maintenance under S.
125 of the 1973 Code. In these circumstances the High Court was not at all justified in taking the two
separate clauses ‘who has been divorced’ and ‘had obtained a divorce from her husband’
conjunctively so as to indicate a divorce proceeding from the husband and the husband alone and in
not treating a dissolution of marriage under the 1939 Act as a legal divorce.

10. A clear distinction has been made between dissolution of marriage brought about by the husband
in exercising his unilateral right to divorce and the act of the wife in obtaining a decree for
dissolution of the marriage from a civil court under the Act of 1939.

1. The word ‘divorce’ is not defined in the Code of Criminal Procedure and may legitimately be
regarded as having been used in clause (b) of sub-section 1 of Section 125 in the dictionary sense. As
ordinarily understood, ‘divorce’ is nothing more nor less than another name for dissolution of
marriage, whether the same result from the act of parties or is a consequence of proceedings at law.
It would be wrong to regard the two terms as not be synonymous with each other, unless the
legislature makes a direction to the contrary.

2. According to Section 125 of the Code of Criminal Procedure, a full-fledged wife is entitled to
maintenance. By reason of clause (b) even a divorced wife has that right provided that she has not
re-married. If that clause envisaged only divorce by voluntary action of the husband, the second
limb of the clause which makes the definition of ‘wife’ inclusive of a woman who has ‘obtained a
divorce from the husband’ would be rendered otiose. The word obtained may well be used in the
sense of ‘procured with effort’ and would certainly describe correctly a situation where something is
achieved by a person through his exertion in spite of opposition from others.
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3. Divorce by the Act of the husband, is not recognised by any system of law except that applicable to
Muslims.

Members of the other main communities inhabiting India, i.e.

Hindus, Sikhs, Buddhists, Jains, Christians, etc. have perforce to go to courts in order to obtain
divorce. If clause (b) was intended to 913 embrace only cases of divorce brought about by the Act of
the husband, its applicability would be limited, by and large, only to Muslims, which per se appears
to be an absurd proposition.

4. The expression ‘a woman who has obtained a divorce from her husband’ has therefore to be
interpreted as including a wife who has been granted a decree of dissolution of marriage by the
Court.

Issue II: Whether the amount of Mehr given by the husband on divorce is adequate to get the husband
rid and is liable to maintain his wife or not?

The only till the endThe concept of mahr in Islamic law is beneficial for the woman. It ensures financial security so
that she is not left helpless after the death of the husband or after the termination of the marriage.
Under the "Women (Protection Of- Rights On Divorce) Act, 1986the protection of the rights of Muslim women
who have been divorced by Her husband Section (a) of the said Act says that divorced woman is entitled to have a
reasonable and fair provision and maintenance from her former husband, and the husband must do so within the
period of idda and his obligation is not confined to the period of iddat.
A reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her
former husband;
Muslim personal law
A divorced wife can claim maintenance from the former husband only for that period during which she is
observing her Iddat. The duration of Iddat on divorce is three menstruation periods or, if pregnant, till delivery of
the child. The former husband’s liability extends only up to the period of iddat, not beyond that.
Maintenance under The Muslim Women (Protection of Rights on Divorce) Act,1986
Maintenance during the Iddat: The divorced woman is entitled to a reasonable and fair amount of maintenance for
herself during the Iddat period from her former husband
Under Muslim Personal Law, a woman is entitled to maintenanc of the Iddat period. Iddat is the period when co-
habitation of the parties end, on the expiry of iddat the spouses will stand divorced.

Capt. Ramesh Chander Kaushal v Veena Kaushal,

the Supreme Court held that section 125 of the Criminal Procedure Code is a reincarnation of
Section 488, except for the fact that parents were not considered qualified for maintenance in the
earlier section.19 The provision is hence a step in the direction of social justice, and has so been
interpreted by courts. The central idea of the maintenance provision is to avoid destitution and
vagrancy; if an attempt to gain the same is negated by the husband on grounds of non-existence of
a formal ceremonious marriage, the very idea behind the section would remain unaddressed. It is

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hence observed that maintenance under CrPC would be granted if conditions under section 125 are
satisfied, irrespective of the individual’s personal law. While the primary fear of courts while
granting maintenance to a live-in partner is paving away for misuse of the provision, the same can
be avoided. In criminal proceedings, the burden of proof rests on the prosecution to prove the
commission of an offence beyond reasonable doubt. It is only when the female live-in partner
proves the existence of neglect, refusal, hurt or the like, will the court give serious consideration
to the claim for maintenance.

Issue 3:whether Uniform Civil Code applies to all religions or not?

As a Muslim we following our customs under muslim law,Uniform civil code violates our personal law

A Uniform Civil Code:

towards gender justice The journal article A uniform civil code by Leila Seth talks about the need
for a uniform civil code in the society and not just that but also focuses on how the implementation
of a uniform civil code is going to promote gender equality, the article talks about how the women
from all the sections of the society even the brahmins and emphasize that how they must fight for
equality and justice and implementation of a uniform civil code is an important way of doing so

Daniel Latifi Case:-

Muslim Women’s Act (MWA) was challenged on the grounds that it violatedy the right to equality
under Articles 14& 15 as well as the right to life under Article 21. The Supreme Court while holding
the law as constitutional, harmonised it with section 125 of CrPC and held that the amount
received by a wife during iddat period should be large enough to maintain her during iddat as well
as provide for her future. Thus under the law of the land, a divorced Muslim woman is entitled to
the provision of maintenance for a lifetime or until she is remarried.

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 8.PRAYER

IN THE VIEW OF THE ABOVE ISSUES RAISED, ARGUMENTS ADVANCED AND

THE AUTHORITIES CITED, THE COUNSEL FOR THE PETITIONER VERY HUMBLY
PRAYS THAT THE HONOURABLE COURT BE PLEASED TO ADJUDGE, HOLD AND
DECLARE THE FOLLOWING:

1.After he pronounce irrevocable Triple Talaq, he divorce she has been terminated to be her legal wife
and due to which he was not accountable to furnish her with maintenance or alimony.

2.After divorce he cannot keep any form of alliance or connection with his divorce wife because it is not
allowed by Islamic laws/Islam and is "Haram" & hence he is not legally responsible to maintain her wife.

3.Further, he stated that a maintenance amount of Rs. 200 per month was being paid by him for roughly
two years. He added that he had deposited dowr of Rs. 3000 during the iddat period.

Henceforth pleasing to pass the order that this Honourable Court may deem to fit in the
interest of Equity, Justice and Good conscience and for this act of kindness, the counsel
for the PETITIONER shall always duty bound forever to pray.

(Counsel for Appellants)

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