TEAM CODE- 04

IN THE HON’BLE HIGH COURT OF VIDHARBHA

UNDER THE MUSLIM WOMEN (PROTECTION OF

IN THE MATTER OF

C.S. NO. OF 2021

UNION OF DHARMASTHAN

(RESPONDENT)

VERSUS

MS. SALMA BANU

(PRTITIONER)

BEFORE THE HON’BLE CHIEF JUSTICE AND

HIS COMPANIONS JUSTICES OF

THE HON’BLE HIGH COURT OF VIDHARBHA

MEMORIAL ON THE BEHALF OF THE RESPONDENT

MEMORIAL ON THE BEHALF OF RESPONDENT Page

 TABLE OF CONTENTS

Serial No. TOPIC Page No.

1. List of Abbreviations 3
2. Index of Authorities 4
(a) Statutes 4
(b) Books 4
(c) Websites 4
(d) Cases 9
3. Statement of Jurisdiction 5
4. Statement of Facts 6
5. Issused Raised 7
6. Summary of Arguments 8
7. Argument Advanced 9

8. Prayer 10

MEMORIAL ON THE BEHALF OF RESPONDENT Page 2

 LIST OF ABBREVIATIONS

Sec Section
& And
Consti. Constitution of Indian Law
SC Supreme Court
HC High Court
ARGU ARGUMENTS

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 INDEX OF AUTHORITIES

STATUTES

 THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) BILL, 2017

 THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE), 2018
 CONSTITUTIONAL LAW OF INDIA

BOOKS

 Muslim Law by Mohammadan Law

 The Constitution of India by Durga Das Basu, Edition 2022

WEBSITES

 https://www.casemine.com/
 https://indiankanoon.org/
 https://www.britannica.com/
 https://www.ssconline.com/

CASES ;-

 xy
 Shayara Bano v. Union of India (2017
 Suresh Kumar Koushal v. Naz Foundation (2013)
 M. Ismail Faruqui v. Union of India (1994)

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 STATEMENT OF JURISDICTION

The defendant is the Union Government, which has passed The Muslim Women (Protection
of Rights on Divorce) Act 2018. The Act is aimed at giving legal effect to the SC’s judgment
in August 2017, which set aside talaq-ebiddat or triple talaq, a type of unilateral divorce by
Muslim husband as unconstitutional. The Union Government claims that this legislation
would help in ensuring the larger constitutional goals of gender justice & gender equality of
married Muslim women & help sub serve their fundamental rights of non-discrimination &
empowerment.

MEMORIAL ON THE BEHALF OF RESPONDENT Page

 STATEMENT OF FACTS

1. That, the constitutional & legal framework related to religious practices & personal laws in
Dharmasthan, a secular country with diverse communities. It mentions the right to freedom of
religion as a fundamental right enshrined in the Consti. & how the Muslim community has
separate personal laws governing marriage, divorce, succession, etc. However, the passage
also highlights the issue of triple talaq or talaq-e-biddat, a unilateral divorce practice among
Muslims, which was declared unconstitutional by the SC in 2017. In response, the Union
Government passed The Muslim Women (Protection of Rights on Divorce) Act 2018 to
prevent this form of divorce & provide legal redressal to victims of illegal divorce.
2. That, the legal challenge to the constitutionality of this legislation by Ms. Salma Bhanu, who
filed a writ petition before the HC of New Vidharbha, citing violations of the right to equality,
freedom of religion, & right to life. The HC dismissed the petition, & Ms. Salma Banu has
approached the apex court challenging the action of the HC by way of Special Leave Petition.
3. That, the passage presents a complex legal & constitutional issue related to personal laws,
gender justice, & religious freedom in Dharmasthan, which is yet to be resolved by the apex
court.
4. That, the constitutional validity of The Muslim Women (Protection of Rights on Divorce) Act,
2018, which was passed by the Union Government of Dharmasthan to give legal effect to the
Sc’s judgment on triple talaq. The Act declares triple talaq or talaq-e-biddat as void & illegal
& prescribes punishment for its commission. The plaintiff, Ms. Salma Bhanu, a renowned
advocate & former Central Minister, has challenged the constitutionality of this legislation by
filing a writ petition before the HC of New Vidharbha. She contends that the impugned
legislation is violative of right to equality, freedom of religion & right to life. The HC of
Vidharbha has dismissed the petition, stating that the legislature has passed it in accordance
with the law laid down in the Consti.. Ms. Salma Banu has approached the apex Court
challenging the action of HC by way of Special Leave Petition. The matter is fixed for final
hearing before the apex Court.

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Page 6
 ISSUSED RAISED

ISSUE 1: WHETHER OR NOT THE IMPUGNED ORDINANCE VIOLATES FUDAMENTAL

RIGHTSVGUARANTEED IN THE CONSTITIUTION.

ISSUE 2: WHETHER OR NOT THE PRACTICE OF TALAQ-E- BIDDAT IS VOID AND

UNCONSTITUTIONAL.

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Page 7
 SUMMARY OF ARGUMENTS

ISSUE 1: THE IMPUGNED ORDIANANCE IS IN VIOLATIOIN OF FUNDAMENTAL RIGHTS UNDER

THE CONSTITUTION.

The impugned ordinance is challenged to be in violation of part iii of the

constitution on the following grounds.

i. Violation of the principleof non discrimination enshrined in Art.14 and 15

ii. Failure to satisfy the test of arbitrariness under Art.14
iii. Violation of right to life guraranteed underArt.21

ISSUE 2: A RESTRAINT IN THE PRACTICE OF TALAQ-E-BIDDAT IS A VIOLATION

OF FREEDOM OF RELIGION.

The Respondent contends that any restraint put in the practice of talaq-e –
biddat would amount to curtailment of freedom to practice and profess
religion s enshrined underArt25 and Art 26 of the constitution .This is so as
the practice of talaq-e- biddat is an essential religious practice and outside of
the purview of court intervention.

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 ARGUMENT ADVANCED

1. THE IMPUGNED ORDINANCE IS IN VIOLATION OF FUNDAMENTAL RIGHTS

GUARANTEED UNDER THE CONSTITUTION

[¶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

A. Ordinance violates the principle of non-discrimination contained in Arts. 14 and 15

11.] Art. 14 and 15 of the Constitution enshrines the principle of equality and non-
discrimination. It is submitted that the provisions of the Impugned Ordinance offend the above
tenets of equality to the extent [1] Criminalization of talaq-e-biddat under S. 3 amount
discrimination on the basis of religion and [2] Classification of the offence as cognizable is
against the principle of equal protection of laws .

CRIMINALIZATION OF TALAQ-E-BIDDAT UNDER S. 3 AMOUNTS TO DISCRIMINATION ON THE

GROUND OF RELIGION

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

2 . CLASSIFICATION OF THE OFFENCE AS COGNIZABLE IS AGAINST THE PRINCIPLE OF EQUAL

PROTECTION OF LAWS.

[¶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.2

[¶14.] In the present case, S. 7 classifies pronouncement of talaq-e-biddat as a cognizable 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.
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.

IN THE PRACTICE OF TALAQ-E-BIDDAT IS A VIOLATION OF FREEDOM OF RELIGION.

Article 25 clause 1 provides that “all persons are entitled to freedom of conscience, profess, practice and
propagate religion but such rights shall be curtailed on the ground of public order, morality, health and to the other
fundamental rights mentioned in Part III. It makes very clear that freedom of religion can be restricted on the grounds of
public order, morality, and health and on the ground that freedom of religion is violating the other fundamental rights
provided in part III.15 Therefore, the practice of triple talaq could not be guarded on the basis of freedom of religion
while freedom of religion will not be available if it is violating the other fundamental right like right to life, right to
equality and dignity of the women. Hence Abolition of Triple Talaq is not in violation of Freedom of religion

Article 25 clause 2 states that “freedom of religion shall not affect the implication of any existing law or shall not restrict
the state from making any law, ensuring social welfare and reform17. It means article 25 clause 2 certifies that any
religious practice, which is affecting social welfare, or derogatory to the woman or against the morality, can be restricted
by the Legislature by enacting a law and therefore banning triple Talaq is not amount to interference with the freedom of
religion. It is the fundamental duty of every citizen of India to renounce the practices, which are derogatory to the dignity
of women with the purpose of bringing social welfare and reform.18The holy book of Quran dose not permits it than how
it can be a religious practice because religious holy book must certify the triple talaq.

article 25 of Indian constitution as a defence for non-declaration of triple talaq unconstitutional because it is essential
part of religion which guarantees to the fundamental rights to religious freedom. Triple talaq custom practice was not an
integral part of Islam and cannot be protected on the ground of freedom of religion because no religion will allow the
exploitation and harassment of women at any sphere. It has been noticed that almost all Islamic states of the world has
abolished the triple talaq practice.19the majority judgement held that triple talaq is of part of Islam part it is not an
essential or it had inherent part of Islam. Hence this practice does not get support of article 25 which ensures religious
freedom. Religious freedom does not mean allowing a person to
practice once custom but also means that such customs must have legal and social significance

Triple Talaq and Jurisdiction of the Apex Court Firstly, the All-India Muslim Personal Law Board (AIMPLB) asserted in
a document submitted to the Supreme Court that personal laws of a community cannot be changed in the name of social
reforms. They provided the following primary grounds in support of the contentious triple talaq practice. The Board
submitted that the Apex Court in Krishna Singh V. Mathura Athir21 has held that article 13 of the Indian Constitution
does not apply on the personal laws of the parties. It is also submitted by the AIMPL that since Part III of the Constitution
does not interfere with the personal laws of the parties, Court cannot examine the constitutional validity of various
practices related to marriage, divorce, and maintenance in Islamic personal law. Secondly, the Board submitted that in
Sardar Saifuddin Saheb V. State of Bombay22 , Apex Court held that the exception carved in Article 25 (2) of the
Constitution of India empowers the state to enact laws bringing “social welfare and reform” was not intended to empower
the state legislature to “reform” a religion in such a manner that results in destruction of identity and existence of religion.
Thirdly, The Board argued that Muslim personal law is a cultural issue that is intimately linked to the community's faith.
Therefore, it is not just a matter of the freedom of conscience at issue, but also of the right to practice one's religion and to
propagate it, as guaranteed by articles 25 and 26 of the Indian Constitution of 1949 read along with article 29. The
protection provided by Articles 25 and 26 covers actions related to religion as well as matters of doctrine and belief.
Additionally, it is claimed that every faith has a different approach to marriage, divorce, and maintenance. Each religion
has a different perspective on these rituals; hence each religion's practices are distinctive and peculiar to that faith alone.
Due to the fact that each religion's activities are unique to that faith alone and have been covered by the protections
provided by articles 25, 26, and 29, one cannot in this situation consider the legitimacy of one religion's customs as being
inferior to the rights of another religion
Lastly, the Board argued that the Constitutional scheme clearly states that the judiciary shall not establish rules for any
religious denomination or branch thereof and whenever the Court is introduced with any religious issues, it will consult
the sacred texts of the relevant religious denomination. In other words, the Court has no authority to impose its own
viewpoint when addressing the religious issues, scriptures, or beliefs of any religious group. In State V.
NarasuAppaMalli’s case23, It was noted that the provisions of Article 13 would not apply to personal laws because they
are not "laws in force" as defined by Article 13 and declared to be valid by the Bombay High Court in 1951. to which the
courts sometimes submit under political pressures, are the reason why this ruling hasn't been overturned. In the case of
Ahmedabad Women's Action Group v. Union of India in 199724, the Bombay High Court's decision was ultimately
confirmed by the Supreme Court after the Apex Court initially dallied on the matter. The Shariat Application Act of 1939,
which just stated that the Shariat
will rule Indian Muslims in all situations relating to marriage, divorce, inheritance, guardianship, and maintenance,
among other things, remained unquestioned as a result. Pernicious practises including triple talaq, Nikah halala, and
polygamy have flourished uncontrolled as a result of the Narasu Appa Malli ruling.25

MEMORIAL ON THE BEHALF OF RESPONDENT

 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 High Court of Vidharbha
that it may be graciously pleased to adjudge and declare that

1 Impugned ordinance is in violation of any fundamental right

2 A restraint in the practice of talaq-e-biddat is a violation of freedom of religion

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

MEMORIAL ON THE BEHALF OF RESPONDENT

of equity, justice a
nd good conscience.
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