Compendium for Respondent

Team code-17 

Intra Moot Court Competition 

2022 
Department of laws 
Panjab University 

COMPENDIUM FOR
RESPONDENT For 
RAHUL 
V 
UNION OF INDIA AND ANOTHER 

Before  

The Hon’ble Supreme Court of India

 Compendium for Respondent
2

INDEX
S.NO CITATION PAGE NO

1. Yunus Khan vs State of Haryana and Others 3-4

CRWP NO 1247 OF 2013

2. Kammu vs State of Haryana and Others 5

2010(4) RCR (Civil) 716;

3. Akhtar Begum vs Jamshed Munir 5

 AIR 1979 Delhi 67, ILR 1978 Delhi 249

4 Abdul Khader vs K Pechiamal 6

CRL.R.C.No.1441 of 2012

5 Shayara Bano vs Union of India 7

AIR 2017 9 SCC 1 (SC)

CASES CITED  
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1. Yunus Khan vs State of Haryana and Others 

CRWP NO 1247 OF 2013

Bench- Single Judge Bench 

HON'BLE MR.JUSTICE AMOL RATTAN SINGH
Before- Hon’ble High Court of Punjab and Haryana 

In this case, the single-bench of the Punjab and Haryana High Court
commented upon the age of majority and the valid marriage of a Muslim
girl.

"11. Issues on her majority / minority status had been raised on

either side and, in addition, it had also been argued by Mr. Rajesh Lamba,
learned counsel for respondent No.4, that being a Muslim girl, the
marriage would have to be treated as a valid marriage since she was
indisputably passed the age of puberty, which fact could not be denied
even by her father, Yunus Khan. 
12. However, learned counsel for the petitioner had contended that there
was no valid 'nikah' performed either, and as such, she could not be treated
to be the wife of respondent No.4 and hence the question of giving her in
custody to him would not arise."

It was later found that the girl was slightly above 15 years of age.

" Firstly, the Act of 2006 does not repeal the Muslim Personal Law
(Shariat) Application Act 1937, Section 2 whereof is reproduced
hereunder: -

2. Application of Personal law to Muslims.-

Notwithstanding any custom or usage to the contrary, in all
questions (save questions relating to agricultural land)
regarding intestate succession, special property of females,
including personal property inherited or obtained under
contract or gift or any other provision of Personal Law,
marriage, dissolution of marriage, including talaq, ila, zihar,
lian, khula and mubarat, maintenance, dower, guardianship,
gifts, trusts and trust properties, and wakfs (other than
charities and charitable institutions and charitable and
religious endowments) the rule of decision in cases where the
parties are Muslims shall be the Muslim Personal Law
(Shariat).
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33. As such, the marriage of a Muslim girl continues to be governed by the

personal law of Muslims. In this regard, it would be useful to reproduce what
is stated in the Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla, in
Article 195 thereof, (10th Edition of 1933): -

195. Capacity for marriage.-(1) Every Mahomedan of sound mind, who

has attained puberty, may enter into a contract of marriage.

( 2) Lunatics and minors who have not attained puberty may be validly
contracted in marriage by their respective guardians.
(3) A marriage of a Mahomedan who is sound mind and has attained
puberty, is void, if it is brought about without his consent.

Explanation.- Puberty is presumed, in the absence of evidence, on

completion of the age of fifteen years.
(This Article is shown as Article 251 in Mullas' Principles of Mahomedan
Law, 19th Edition, by M.Hidayatullah).

The same principle is also reproduced in Article 27 of Muslim Law by

Faiz Badruddin Tyabji, which is also reproduced hereinunder:-

27. Age of competence to marry.-With reference to the age

of competence to marry, it is presumed in the absence of
evidence of attainment of puberty, that males attain puberty at
the age of 15 years, and females at the age of 9[15] years.
34. Keeping in view the above, it is obvious that even taking 15 years to
be the age of puberty and not prior to that, the present applicant
i.e.Sanjeeda is well above the said age by appearance and even by
admission of all parties concerned. As such, unless her marriage can be
shown to have been not validly performed for any other reason, she has,
even ex-facie, without any evidence to the contrary having been shown,
performed a valid marriage with her consent.

2. Kammu vs State of Haryana and Others

2010(4) RCR (Civil) 716;

Bench- 1 Judge Bench 

Hon'ble Mr. Justice Arun Kumar Tyagi 
Before- Punjab and Haryana High Court 

A Coordinate Bench in Kammu's case (supra), has held in para

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No.20 that as per the text Book of Mohammedan Law by Aqil Ahmad,
“Puberty and majority” in the Muslim law, are one and the same. The
presumption is that a person attains majority at the age of 15 years. It
should be noted that marriage of a minor without the consent of the
guardian is invalid unless it is ratified after the attainment of majority. A
boy or girl who has attained puberty is at liberty to marry anyone he or she
likes and the guardian has no right to interfere if the match be equal.

3. Akhtar Begum vs Jamshed Munir

                                   AIR 1979 Delhi 67, ILR 1978 Delhi 249 

Bench- 1 Judge Bench 

HON'BLE JUDGE PRAKASH NARAIN 
Before- Punjab and Haryana High Court    

The above principles of the personal law of the parties hereto have been
noticed with approval, by a Division Bepch .of this Court in Mrs. Shama
Beg v. Khawaja Mohnddm Ahmed , and have to be kept in view in
deciding even an application under Section 12 of the Act by virtue of the
mandate of Section 6 If a Court does not keep that in view it would be
acting illegally and with material irregularity. Indeed, even sub-section (1)
of Section 17 of the Act stipulates that a guardian has to be appointed,
inter alia, consistent with the personal law by which the parties are
governed. In this case the trial Court seems to have been more influenced
by the general principles of the law of guardianship and lost sight of the
personal law.

    

4.  Abdul Khader vs K Pechiamal 

                                              CRL.R.C.No.1441 of 2012 
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Bench – Single Judge Bench 

THE HONOURABLE MR.JUSTICE C.T.SELVAM
Before- Madras High Court 

24. The prime reason for bringing in the P.C.M. Act is the prohibition of
the solemnization of the child marriage. When the prescribed marriageable
age of the girl is 18 years, this Court cannot be called upon to issue the
sought declaration that the provisions of the P.C.M. Act are not applicable
for the petitioner, as she belongs to Muslim community. The courts have
the power coupled with the duty to prevent and not to promote the child
marriages. This Court cannot and would not pass an order by virtue of
which little girls become child brides.

25. It is also profitable to refer to Section 13 of the P.C.M. Act, which

empower the courts to issue injunctions prohibiting the solemnization of
marriages in contravention of the said Act. Section 13(1) reads as follows:
'13. Power of court to issue injunction prohibiting child marriages. - (1)
Notwithstanding anything to the contrary contained in this Act, if, on an
application of the Child Marriage Prohibition Officer or on receipt of
information through a complaint or otherwise from any person, a Judicial
Magistrate of the first class or a Metropolitan Magistrate is satisfied that a
child marriage in contravention of this Act has been arranged or is about
to be solemnised, such Magistrate shall issue an injunction against any
person including a member of an organization or an association of persons
prohibiting such marriage."

26. When there is legislative ban on the child marriages, the courts cannot
go out of their way to help the promoters of child marriages.

28. As held by the Apex Court in the case of Radhakishan (supra,) when
the statutory law has commenced to govern a particular field, the personal
law becomes inapplicable. Reiterating this view in the subsequent case of
Kumar Gonsusab (supra), the Hon'ble Supreme Court has held that the
personal law dealing with the transfer of property cannot override the
provisions of the Transfer of Property Act

5. Shayara Bano vs Union of India 

AIR 2017 9 SCC 1 (SC)

Bench- 5 Judge Bench 

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HON'BLE JAGDISH SINGH KHEHAR, CJI

Before- Hon’ble Supreme Court of India 

24. To freely profess, practice and propagate religion of one’s choice is a

Fundamental Right guaranteed under the Indian Constitution. That is
subject only to the following- (1) public order, (2) health, (3) morality and
(4) other provisions of Part III dealing with Fundamental Rights. Under
Article 25 (2) of the Constitution of India, the State is also granted power
to make law in two contingencies notwithstanding the freedom granted
under Article 25(1). Article 25 (2) states that “nothing in this Article shall
affect the 77 306 operation of any existing law or prevent the State from
making any law- (a) regulating or restricting any economic, financial,
political or other secular activity which may be associated with religious
practice; (b) providing for social welfare and reform or the throwing open
of Hindu religious institutions of a public character to all classes and
sections of Hindus.” Except to the above extent, the freedom of religion
under the Constitution of India is absolute and on this point, I am in full
agreement with the learned Chief Justice. However, on the statement that
triple talaq is an integral part of the religious practice, I respectfully
disagree. Merely because a practice has continued for long, that by itself
cannot make it valid if it has been expressly declared to be impermissible.
The whole purpose of the 1937 Act was to declare Shariat as the rule of
decision and to discontinue anti-Shariat practices with respect to subjects
enumerated in Section 2 which include talaq. Therefore, in any case, after
the introduction of the 1937 Act, no practice against the tenets of 307
Quran is permissible. Hence, there cannot be any Constitutional protection
to such a practice and thus, my disagreement with the learned Chief
Justice for the constitutional protection given to triple talaq. I also have
serious doubts as to whether, even under Article 142, the exercise of a
Fundamental Right can be injuncted.