1 N.J. Yasaswy National Moot Court Competition, 2019: Janani AND Others. P

Team Code- 01
1s t N.J. YASASWY NATIONAL MOOT COURT COMPETITION, 2019
IN THE HON’BLE SUPREME COURT OF INDIANA
In the matter of
JANANI AND OTHERS. PETITIONERS
v.
UNION OF INDIANA RESPONDENTS
(Case concerning the discrimination against women in Muslim community)
MEMORIAL for RESPONDENTS
- UNION OF INDIANA -
MEMORIAL for RESPONDENTS TABLE OF CONTENTS
TABLE OF CONTENTS
LIST OF ABBREVIATIONS ................................................................................................II
INDEX OF AUTHORITIES ............................................................................................... IIV
STATEMENT OF JURISDICTION .................................................................................. XII
SUMMARY OF FACTS.................................................................................................... XIII
STATEMENT OF ISSUES ............................................................................................... XIV
SUMMARY OF ARGUMENTS......................................................................................... XV
ARGUMENTS ADVANCED........................................................................................... 1- 22
PRAYER ............................................................................................................................. XVI
PAGE | I

MEMORIAL for RESPONDENTS LIST OF ABBREVIATIONS
LIST OF ABBREVIATIONS
AIR All India Reporter
All ER All England Reporter
Art. Article
BOM Bombay
CJ. Chief Justice
Co. Company
CrPC Criminal procedure Code of Indiana
Corpn. Corporation
Dist. District
Dy. Deputy
DPSP Directive Principles of State Policy
Edn. Edition
Etc. Et Cetera
SLP Special Leave Petition
HC High Court
PAGE | II

MEMORIAL for RESPONDENTS LIST OF ABBREVIATIONS
i.e. id est
IPC Indian Penal Code
J. Justice
Ltd. Limited
Mad. Madras
No. Number
NGO Non-Government Organization
PIL Public Interest Litigation
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reports
Sec. Section
U.K United Kingdom
v. Versus
PAGE | III

MEMORIAL for RESPONDENTS INDEX OF AUTHORITIES
INDEX OF AUTHORITIES
CASES
• A.K. Gopalan v. State of Madras, 1950 SCR 88: AIR 1950 SC 27.
• A.P. Pollution Control Board II v. M.V. Naydu, (2001) 2 SCC 62: 2000 Supp (3) JT
322.
• A.S. Narayanan v. State of Andhra Pradesh, AIR 1996 SC 1765.
• Air India v. Nergesh Meerza, (1981) 4 SCC 335: 1981 SCC (L&S) 599.
• Ameeroonissa Begum v. Mehboob Begum, AIR 1953 SC 91: 1953 SCR 404.
• Amita v. Union of India, (2005) 13 SCC 721.
• Anukul Chandra Pradhan v. Union of India, (1997) 6 SCC 1.
• Anwar v. State of J&K, (1970) 2 SCWR 276 (279): AIR 1971 SC 337: (1971) 3 SCC
104.
• Aruna Ramachandra Shanbaug v. Union of India, (2011) 15 SCC 480: 2012 AIR
SCW 3786.
• Ashok Kumar Pandey v. State of West Bengal, (2004) 3 SCC 349: AIR 2004 SC 280.
• Ashoka Smokeless Coal India Pvt. Ltd. v. Union of India, (2007) 2 SCC 640, 697:
(2007) 1 JT 125.
• Athiest Society of India v. Govt. Of Andhra Pradesh, AIR 1992 AP 310.
• Babulal Amthalal Mehta v. Collector of Customs, Calcutta, AIR 1957 SC 877: 1957
SCR 1110.
• Bachan Singh v. State of Punjab, AIR 1982 SC 1325: 1983 SCR (1) 145.
• Baker Ali Khan v. Anjuman Ara Begum, 30 I.A. 94.

• BALCO Employee’s Union (Regd.) v. Union of India, (2002) 2 SCC 333: AIR 2009
SC 350.
• Baqar Ali v. Anjuman (1902) 25 All. 236.

• Bd. of Trustee of the Port of Bombay v. Nadkarni Dilip Kumar Raghavendra, AIR
1983 SC 109: (1983) 1 SCC 124.
• Bodhisattwa Gautam v. Subbra Chakraborty, AIR 1996 SC 722: (1996) 1 SCC 490.
PAGE | IV

• Bommai v. Union of India, (1994) 3 SCC 1.

• Budhan Chowdhry v. State of Bihar, AIR 1955 SC 191: 1955 (1) SCR 1045.
• Central Bank of India v. Madhulika Guruprasad Dahir, (2008) 13 S.C.C. 17.
• Cf. Ghulam v. State of UP, AIR 1981 SC 2198.

• Cf. Union of India v. Indo-Afghan Agencies, AIR 1968 SC 718: 1968 (2) SCR 366.
• Chhetriya Pardushan Mukti Sangharsh Samiti v. State of U.P., AIR 1990 SC 2060:
(1990) 4 SCC 449.
• Chiranjit Lal Chaudhary v. Union of India, AIR 1951 SC 41.
• Commissioner of Police v. Acharya Jagadishwarananda, AIR 2004 SC 2984.
• Commissioner, Hindu Religious Endowments v. Lakshmindra Thirtha Swamiar, AIR
1954 SC 282.
• Confederation of Ex-Servicemen Associations v. Union of India, (2006) 8 SCC 399:
AIR 2006 SC 2945.
• Consumer Education & Research Centre v. Union of India, (1995) 3 SCC 42.
• D.C. Saxena v. Hon’ble the Chief Justice of India, (1996) 5 SCC 216: AIR 1996 SC
2481.
• D.T.C. v. Mazdoor Congress Union D.T.C., AIR 1991 SC 101: 1991 Supp. (1) SCC
60.
• Danial latifi v union of India 2001 SC C 740,749,766,AIR 2001 SC 3958.
• Dattaraj Nathuji Thaware v. State of Maharashtra, AIR 2005 SC 540: (2005) 1 SCC
590.
• Dhakeswari Cotton Mills Ltd. v. C.I.T., A.I.R. 1955 S.C. 65.
• Dharam Dutt v. U.O.I., (2004) 1 SCC 712, 747: AIR 2004 SC 1295.
• Digbijaya Missal v. State of Orissa, AIR 1977 SC 908.
• Dr. B.Singh v. Union of India, (2004) 3 SCC 363: AIR 2004 SC 1923.
• E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555.
• Evangelical Fellowship of India vs. State of Himachal Pradesh, 2013 (4) RCR (Civil)
283.
• Ezhil v. State of Tamil Nadu, A.I.R. 2002 S.C. 2017.
• Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746:
(1981) 1 SCC 608.
PAGE | V

• Gian Singh v. State of Punjab, A.I.R. 1974 S.C. 1024 .

• Gopi Chand v. Delhi Administration, AIR 1959 SC 609: 1959 Supp. (2) SCR 87.
• Govt. of A.P. v. Maharshi Publishers Pvt. Ltd., (2003) 1 SCC 95.
• H.P. Gupta v. U.O.I., (2002) 10 SCC 65.
• Hem Raj v. State of Ajmer, A.I.R. 1954 S.C. 462.
• Hinch Lal Tiwary v. Kamla Devi, (2001) 6 SCC 496: AIR 2001 SC 3215.
• I.R. Coelho v. State of Tamil Nadu.
• Indian Bank’s Association v. Devkala Consultancy Service, (2004) 11 SCC 1: AIR
2004 SC 2615.
• Institute of Charted Financial Analysts of India v. ACIT, (2002) 256 ITR 115 (AP).
• Ismail v. Union of India, (1994) 6 SCC 360.
• Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, (2004) 3 S.C.C. 214.
• Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305: 1993 SCC (Cri) 36
• John Vallamattom v. Union of India, AIR 2003 SC 2902.
• K.R. Srinivas v. R.V. Premchand, (1994) 6 SCC 620.
• Kazi Lhendup Dorji v. C.B.I., 1994 Supp (2) SCC 116: 1994 SCC (Cri) 873.
• Krishna Singh v. Mathura Athir (1981) 3 SCC 689.

• Kunhayammed v. State of Kerala, A.I.R. 2000 S.C. 2587 .
• L.I.C. of India v. Consumer Education and Research Centre, AIR 1995 SC 1811.
• Laxman Naik v. State of Orissa, AIR 1995 SC 1387: (1994) 3 SCC 381.
• Lokesh Katara v. High Court of Gujarat, (2017) 2 SCC 427.
• Louis De Raedt v. Union of India, (1991) 3 SCC 554.

• M.C. Mehta v. Union of India, (2004) 12 SCC 118: AIR 2004 SC 4016.
• Machhi Singh v. State of Punjab, AIR 1983 SC 957: 1983 SCR (3) 413.
• Maganlal chhaganlal V Greater Municipality AIR 1974,Sc 2009
• Maharshi Avadhesh v. Union of India 1994 Supp (1) SCC 713.

• Makhan Singh Tarsikka v. State of Punjab, 1952 SCR 368: AIR 1952 SC 27.
• Marri Chandra Sekhar Rao v. Dean, Seth G.S. Medical College, 1990 (3) SCC 130.
• Md. Siddique Ali vs. Mustt. Fatema Rashid, AIR 2007(NOC) 2037: 2007
PAGE | VI

• Minerva Mills v. Union of India, AIR 1980 SC 1789.

• Misrilal v. Sadasivaiah, A.I.R. 1965 S.C. 553 .
• Mithar v. Union of India, AIR 1983 SC 1.

• Municipal Committee, Patiala v. Model Town Residents Association, AIR 2007 SC
2844.
• Munshi Singh Gautam v. State of M.P., (2005) 9 SCC 631, 637: AIR 2005 SC 402.
• N. Adithyan v. Travancore Devaswom Board, (2002) 8 SCC 106.
• N. Suriyakal v. A. Mohandoss, (2007) 9 S.C.C. 196.
• Namada Bachao Andolan v. Union of India, (2000) 10 SCC 664: 2000 Supp (2) JT 6.
• Naranjan Singh Nathawan v. State of Punjab, AIR 1952 SC 106: 1952 SCR 395.
• Nareinderjit Singh Sahni v. Union of India, AIR 2001 SC 3810: (2002) 2 SCC 21.
• Narpat Singh v. Jaipur Development Authority, (2002) 4 S.C.C. 666.
• National Human Rights Commission v. State of Arunachal Pradesh, (1996) 1 SCC

742: AIR 1996 SC 1234.
• Neetu v. State of Punjab, (2007) 10 SCC 614, 619.
• New Reviera Cooperative Housing Society v. Special Land Acquisition Officer,
(1996) 1 SCC 731.
• Northern India Caterers V state of Punjab, AIR 1967 SC 1581:3 SCR 399.
• Olga Tellis v. Bombay Corporation, AIR 1986 SC 180: (1985) 3 SCC 545.
• Pannalal Bansilal Pitti v. State of A.P., (1996) 2 SCC 498: AIR 1996 SC 1023.
• Pritam Singh v. The State, A.I.R. 1950 S.C. 169 .
• Punjab province V. daulat singh 1945-46,73IA 59:AIR 1946 PC 66.
• R K Dalmia v. Justice Tendulkar, AIR 1958 SC 538.
• R. Kaaruppan v. Government of India, AIR 2008 Mad 264.
• Rajendra Kumar Chaturvedi v. State of Maharashtra, (1974) 4 S.C.C. 327.
• Ramjas Foundation v. Union of India, 1993 Supp (2) SCC 20: AIR 1993 SC 852.
• Reliance Airport Developers Pvt. Ltd. v. Airports Authority of India & Ors., (2006)
10 SCC 1.
• Reliance Energy Ltd. v. Maharshtra State Road Development Corporation Ltd.,
(2007) 8 SCC 1,21: (2007) 11 JT 1.
PAGE | VII

• Rev. Stainislaus v. State of Madhya Pradesh and Ors. AIR 1977 SC 908.
• S.D.S. Shipping (P.) Ltd. v. Jay Container Services Co. (P.) Ltd., (2003) 9 S.C.C..
• S.P. Anand, Indore v. H.D. Deve Gowda, (1996) 6 SCC 734: AIR 1997 SC 272.
• S.P. Gupta v. Union of India, 1981 Supp SCC 87.
• S.R. Bommai v. Union of India, AIR 1994 SC 1918.
• Sadhu Singh v. State of P.E.P.S.U., A.I.R. 1954 S.C. 271.

• Sahib Ram Giri v. ITO, 301 ITR 249; Dinesh Chand Jain v. Dy. CIT, 280 ITR 567.
• Santosh Kumar Pandey v. Ananya Pandey, AIR 2013 Chh 95.
• Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665: AIR 2005 SC 2920.
• Sardar Sydena Taher Saifuddin Sahed v. State of Bombay, AIR 1962 SC 853.
• Sarup v. State of Punjab, AIR 1959 SC 860 (866).
• Shantistar Builders v. Narayan Khimalal Totame, AIR 1990 SC 630: (1990) 1 SCC
520.
• Sheela Barse v. State of Maharashtra, AIR 1983 SC 378.
• Shivannad Gaurishankar Baswanti v. Laxmi Vishnu Textile Mills, (2008) 13 S.C.C.
323.
• Shrikishan Singh v. State of Rajasthan, 1955 (2) SCR 531: AIR 1955 SC 795.
• Siemens Public Communication Networks Pvt. Ltd. & Anr. v. Union of India & Ors.,
(2008) 16 SCC 215.
• Soma Chakravarty v. State, (2007) 5 SCC 403, 411: AIR 2007 SC 2149.
• State of Andhra Pradesh v. I.B.S. Prasada Rao, A.I.R. 1970 S.C. 648.
• State of Arunachal Pradesh v. Khudiram Chakma, 1994 Supp. (1) SCC 615.
• State of Assam v. Barga Dewani, (1970) 3 S.C.C 236.
• State of Bombay v Bombay education society AIR 1954,SC 561:(1995,SCR 568).
• State of Bombay v. F.N. Balsara, AIR 1951 SC 318: 1951 SCR 682.
• State of Bombay v. Narasu Appa Mali,AIR 1952 Bom 84.

• State of Karnataka v. Dr. Praveen Bhai Thogadia, AIR 2004 SC 2081.
• State of Karnataka v. State of A.P., (2000) 9 SCC 572: (2000) 6 JT 1.
PAGE | VIII

• State of Madhya Pradesh v. Kedia Leather & Liquor Ltd., (2003) 7 SCC 389: AIR
2003 SC 3236.
• State of Madras v. Champakam Dorarirajan, AIR 1951 SC 228.
• State of Maharashtra v. Prabhakar Pandurang Sanzgiri, AIR 1966 SC 424 (426): 1966
(1) SCR 702.
• State of T.N. v. K. Sabanayagam, AIR 1998 SC 344: (1998) 1 SCC 318.
• State of U.P. v. Maqbool Ahmed, (2006) 7 SCC 521.
• State of W.B. v. Anwar Ali, AIR 1952 SC 75.
• T.M.A Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, 655: AIR 2003 SC
355.
• T.N. Godavarman Thirumulpad v. Union of India, (2006) 5 SCC 28: AIR 2006 SC
1774.
• Tata Cellular v. Union of India, (1994) 6 SCC 651.
• The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra

Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282.
• Tirupati Balaji Developers Pvt. Ltd. v. State of Bihar, A.I.R. 2004 S.C. 2351.
• Union of India v. International Trading Co., AIR 2003 SC 3983.

• Venkataramana Devaru v. State of Mysore, AIR 1958 SC 255.
• Villianur Iyarkkai Padukappu Maiyam v. Union of India, (2009) 7 SCC 561: (2009) 8
JT 339.
• Virender Gaur v. State of Haryana, (1995) 2 SCC 577.
• Zahira Habibullah Sheikh v. State of Gujarat, A.I.R. 2004 S.C. 3467 .
STATUTES
1. Constitution of Indiana, 1950

2. The Muslim Personal Law (Shariat) Application Act, 1937.
3. Indiana penal code, 1860
BOOKS
1. 1.AQIL AHMAD, MOHAMMEDAN LAW (Central Law Agency 25TH ED. 2013)
PAGE | IX

2. C.K. Takwani, Lectures on Administrative Law 31 (2008)

3. 3.. M P JAIN, INDIAN CONSTITUTIONAL LAW (LexisNexis 7th ed. 2014)
4. 4.. PARAS DIWAN, FAMILY LAW (Allahabad Law Agency10TH edition)
ONLINE DATABASE
1. SCC Online [www.scconline.co.in]
2. Bar and Bench [www.barandbench.com]
PAGE | X

MEMORIAL for RESPONDENTS STATEMENT OF JURISDICTION
STATEMENT OF JURISDICTION
JANANI and Others have approached the Hon’ble Supreme Court of Indiana pursuant to
Article 136 and Article 32 of the Constitution of Indiana. Union of Indiana has been arrayed
as respondents in this case.
PAGE | XI

MEMORIAL for RESPONDENTS SUMMARY OF FACTS
SUMMARY OF FACTS
Democratic republic of Indiana is a secular country located in South Asia .Indiana has rich
social composition consisting of 80% Hindus, 13% Muslim, 2% Christian and 4% from other
religion. The constitution of Indiana provides freedom of religion as a fundamental right and
all regions are governed by their personal laws.
While pursuing her graduation in a faraway city, Devi, a 17 years old girl was highly
influenced by her classmates and used to visit mosque frequently. One day she got converted
to Islam, adopted a new name Hamida and got certificate of conversion by taking
Shahada presence of Maulana and two witness .On her 18th birthday, she married to Aslam.
On being asked to return home, her parents misbehaved with Aslam and didn't let her leave
home with him. JANANI NGO dealing with women's right helped Hamida filing a case of
habeas corpus in the High Court of Methi. During the pendency of the case, Aslam was
accused of having connection with radical terrorist group. The high court held the
conversation to be void on account of her minority. Her marriage was also declared void
considering it as a case of love Jihad .Aggrieved by the decision, Hamida approach before
Supreme Court of Indiana.
Saleema was a victim of repeated torture at her matrimonial house. No sooner did she
complain against it than she was given Triple Talaq through a letter. In her second marriage
with a married man, she was given Talaq just after pregnancy. Moved by her own situation
and the situation of many other Muslim women throughout Indiana, Saleema along with
JANANI filed a petition in Supreme Court to declare the practice of 'Polygamy', 'Nikah
Halala','Nikah mutah', 'Nikha Misyar as void as these are against basic rights provided under
part III of the constitution and also against public order morality and health.
Mumtaz Begum filed an application under Section 5 of Muslim women protection of rights
on divorce act with a motive to be governed by the provision of section 125 to 128 of CrPC.
The same was rejected by learned magistrate on the ground of having no consent from former
PAGE | XII

MEMORIAL for RESPONDENTS SUMMARY OF FACTS
husband. The High court in revision affirmed the order of learned magistrate. Mumtaz
Begum is now before the Supreme Court of Indiana.
JANANI filed a writ petition in Supreme Court to declare the following practices under
Muslim personal law as unconstitutional. Muslim personal law which enables a Muslim man
to give unilateral Talaq to his wife without her consent and without a resort to judicial
process of court to be void .Provision of Sunni and Shia laws of inheritance which
discriminate against female in their share as compared to the share of male to be void.
Muslim personal law which does not enable a Muslim woman to be natural guardian as void.
The Supreme Court of Indiana clubbed all the cases and the matters are pending for hearing
on 28.09.2019.
PAGE | XIII

MEMORIAL for RESPONDENTS STATEMENT OF ISSUES
STATEMENT OF ISSUES
PRELIMINARY OBJECTIONS
ISSUE I : WHETHER THE PETITION UNDER ARTICLE 136 AND ARTICLE 32 OF THE
CONSTITUTION OF INDIANA IS MAINTAINABLE?
ON MERITS
ISSUE II : WHETHER THE CONVERSION AND MARRIAGE OF DEVI IS VALID?
ISSUE III: WHETHER MUMTAZ BEGUM IS ENTITLED TO BE GOVERNED AND GET
MAINTENANCE UNDER SEC 125 – 128 OF CR.P.C OF INDIANA ?
ISSUE IV : WHETHER THESE CHALLENGED PRACTICES UNDER MUSLIM PERSONAL LAW ARE
CONSTITUTIONALLY VALID ?
PAGE | XIV

MEMORIAL for RESPONDENTS SUMMARY OF ARGUMENTS
SUMMARY OF ARGUMENTS
The petition under article 136 and article 32 of the constitution of Indiana is not
maintainable
It is humbly submitted before The Honourable Court of Indiana that the petition under article
136 and under article 32 it is not maintainable. The petition under Art 136 is not maintainable
as there has been no special circumstances and no miscarriage of justice .The petitioner came
under article 32 has no locus standi and fundamental right has not been violated. In addition
to this ,alternative remedies has not been exhausted. so the petition under art 32 is not valid.
The clubbing of petition by Supreme court is not valid as the cases are of not same nature.
The conversion and marriage of Devi is invalid
Being a result of undue influence the conversion is invalid. The subsequent act that is
marriage which is based on the invalid conversion is also invalid.As the girl is in the stage of
being exploited, the Doctrine of Parens Patriae can be applied in this present case and writ of
Habeas Corpus should not be granted
Mumtaz Begum is neither entitled to be governed nor to get maintenance under Sec 125
– 128 of Cr.P.C of Indiana
Mumtaz Begum should not be entitled to get maintenance under Cr. P. C without the consent
of her husband as being subject to her personal law ,which dont provide for such rights
.personal law are to protect, preserve secularism and hence can not be called discriminatory.
The challenged practices under Muslim personal law are constitutionally valid
The challenged act are constitutionally valid as these do not fall under the ambit of article
13 and can't be challenged on the ground of being violative of fundamental rights. This
practices do not violate the provisions provided under part 3 of the Constitution of Indiana
and on the declaration of them being void will be violative of secularism. In reference to
International conventions and foreign laws, no decisions must be taken as the situation
of social economic and political situation varies from country to country
PAGE | XV

MEMORIAL for RESPONDENTS ARGUMENTS ADVANCED
ARGUMENTS ADVANCED
I. ISSUE 1 THE SPECIAL LEAVE PETITION FILED UNDER ARTICLE 136 IS

NOT MAINTAINABLE.
1.1 Whether the petition filed under article 136 of the constitution of Indiana is
maintainable?
[ ¶ 1 ] It is humbly submitted by the Respondents that the SPL is not maintainable under
Art.136 of the Constitution of Indiana. In order to invoke the jurisdiction of the Supreme
Court under this Art. a grave miscarriage of justice needs to have been done. Under this
Article the power of the Supreme Court is extraordinary in nature and it cannot be invoked
when alternative remedies are readily available. An appellate jurisdiction to the Supreme
Court is granted under Article 136, which is discretionary in nature, against any order passed
by any court in the country of Indiana1. The discretion is dependent on the wisdom and good
sense of the judges.2 When there is a grave failure and miscarriage of justice to one party3 or
a question of law having general public importance arise4 ,Art. 136 is exercised.
A. There Has Been No Miscarriage Of Justice
[ ¶ 2 ] It is submitted that in cases where substantial justice is already done5 the remedy
under Art. 136 need not to be exercised. Supreme Court can interfere only when the findings
are erroneous, perverse and results in miscarriage of justice.6 In the instant cases, the orders
given by the High Court in Devi's case and Mumtaz Begum's case are in accordance with the
personal laws. Therefore, the court cannot give any decision which is in accordance with the
personal laws. No grave injustice has been done to the petitioner as the High Court has only
reinforced this fact. It is humbly submitted that the SPL filed under Art. 136 of the
Constitution of Indiana is not maintainable.
1
Pritam Singh v. The State, A.I.R. 1950 S.C. 169 .
2
Kunhayammed v. State of Kerala, A.I.R. 2000 S.C. 2587 .
3
N. Suriyakal v. A. Mohandoss, (2007) 9 S.C.C. 196 ; State of Assam v. Barga Dewani, (1970) 3 S.C.C 236
4
Central Bank of India v. Madhulika Guruprasad Dahir, (2008) 13 S.C.C. 17; Dhakeswari Cotton Mills Ltd. v.
C.I.T., A.I.R. 1955 S.C. 65.
5
S.D.S. Shipping (P.) Ltd. v. Jay Container Services Co. (P.) Ltd., (2003) 9 S.C.C..
6
Ezhil v. State of Tamil Nadu, A.I.R. 2002 S.C. 2017.
PAGE | 1

B. There Has Been No Special Or Exceptional Circumstances That Could Invoke The Power Of
Article 136
[ ¶ 3 ] The power under Art. 136 is an extraordinary power to be exercised in rare and
exceptional cases.7 The Supreme Court will soon be flooded with a huge amount of backlog8
if it entertains all trivial cases. The Hon’ble Supreme Court of Indiana cannot be expected to
hear each and every kind of dispute9 as it has only limited time at its disposal.
[ ¶ 4 ] The Supreme Court has reiterated in many of its previous judgments that the
circumspection and circumscription must convince the Court to interfere with the decision
challenged that there exists extraordinary flaws or grave injustice or other recognized
grounds are made out.10 The Supreme Court would allow its jurisdiction to be invoked11 only
when some glaring error leading to grave failure of justice is made out.
[ ¶ 5 ] In the instant case, the Petitioner failed to show that there exist special grounds to
invoke this petition. The petitioner questioned the provisions of personal laws, but they do
not constitute any special grounds on which a discretionary power of such extraordinary
nature under this Art.12 could be invoked. Matters which could not be raised before the High
Court in revision cannot be raised before the Supreme Court in appeal by special leave from
the order passed by the High Court in revision.13
1.2. Whether the petition filed under article 32 of the constitution of Indiana is
maintainable?
[ ¶ 6 ] ‘Public Interest Litigation’ means a legal action for the enforcement of public interest
in which the legal rights or liabilities of public at large are affected14, initiated in a Court of
7
Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, (2004) 3 S.C.C. 214 ; Narpat Singh v. Jaipur
Development Authority, (2002) 4 S.C.C. 666 ; Zahira Habibullah Sheikh v. State of Gujarat, A.I.R. 2004 S.C.
3467 .
8
Hem Raj v. State of Ajmer, A.I.R. 1954 S.C. 462 ; Sadhu Singh v. State of P.E.P.S.U., A.I.R. 1954 S.C. 271;
State of andhra Pradesh v. I.B.S. Prasada Rao, A.I.R. 1970 S.C. 648.
9
Tirupati Balaji Developers Pvt. Ltd. v. State of Bihar, A.I.R. 2004 S.C. 2351 .
10
Shivannad Gaurishankar Baswanti v. Laxmi Vishnu Textile Mills, (2008) 13 S.C.C. 323.
11
Rajendra Kumar Chaturvedi v. State of Maharashtra, (1974) 4 S.C.C. 327; Gian Singh v. State of Punjab,
A.I.R. 1974 S.C. 1024 .
12
Article 136 of Constitution of Indiana
13
Misrilal v. Sadasivaiah, A.I.R. 1965 S.C. 553 .
14
1Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305: 1993 SCC (Cri) 36; Ashok Kumar Pandey v. State of
West Bengal, (2004) 3 SCC 349, 356: AIR 2004 SC 280; Neetu v. State of Punjab, (2007) 10 SCC 614, 619; Dr.
B.Singh v. Union of India, (2004) 3 SCC 363, 371: AIR 2004 SC 1923.
PAGE | 2

law .The Supreme Court has only the persons acting bona fide15 and having sufficient interest
in maintaining an action for judicial redress for public injury to put the law in action16, to
prevent violation of fundamental rights17 and genuine infraction of statutory provisions, but
not for private profit or personal gain or political motive or any oblique consideration.18A
petitioner must approach the court with good intentions and clean objective.19 There must be
bona fide public interest involved in the litigation and acceptable basis for maintaining a
cause before the Court.20 Immoral litigants should not be allowed to avail the extraordinary
jurisdiction21 before the court of law.
[ ¶ 7 ] The authenticity of such claims or litigations should be adjudged on the
creditworthiness of the materials averred and not even on the documents claimed of the
person moving the Court.22 The locus standi rule cannot be waived by any individual and the
Court should grant it when it is satisfied that the carriage of proceedings is in the competent
hands of a person who is genuinely concerned in public interest23 and is not moved by
extraneous considerations.24
A. The petitioner has no locus standi
[ ¶ 8 ] The only basis on which a person can maintain a PIL is where there has been an
element of violation of Article 21 or where the litigation has been initiated for the benefit of
the poor and the underprivileged who are unable to come to the Court due to some
disadvantage.25The triple ground on which judicial scrutiny is permissible has been
consistently held to be ‘illegality’, ‘irrationality’ and ‘procedural impropriety’.26 It should be
15
T.N. Godavarman Thirumulpad v. Union of India, (2006) 5 SCC 28: AIR 2006 SC 1774; S.P. Gupta v. Union
of India, 1981 Supp SCC 87.
16
Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305: 1993 SCC (Cri) 36; Sarbananda Sonowal v. Union of
India, (2005) 5 SCC 665: AIR 2005 SC 2920.
17
Bodhisattwa Gautam v. Subbra Chakraborty, AIR 1996 SC 722: (1996) 1 SCC 490.
18
Dattaraj Nathuji Thaware v. State of Maharashtra, AIR 2005 SC 540: (2005) 1 SCC 590; Kazi Lhendup Dorji
v. C.B.I., 1994 Supp (2) SCC 116: 1994 SCC (Cri) 873.
19
Dattaraj Nathuji Thaware v. State of Maharashtra, AIR 2005 SC 540: (2005) 1 SCC 590; Ramjas Foundation
v. Union of India, 1993 Supp (2) SCC 20: AIR 1993 SC 852; K.R. Srinivas v. R.V. Premchand, (1994) 6 SCC
620.
20
Indian Bank’s Association v. Devkala Consultancy Service, (2004) 11 SCC 1: AIR 2004 SC 2615.
21
Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305: 1993 SCC (Cri) 36.
22
Dr. B. Singh v. Union of India, (2004) 3 SCC 363, 396-70: AIR 2004 SC 1923; Ashok Kumar Pandey v. State
of West Bengal, (2004) 3 SCC 349: AIR 2004 SC 280.
23
Sheela Barse v. State of Maharashtra, AIR 1983 SC 378.
24
S.P. Anand, Indore v. H.D. Deve Gowda, (1996) 6 SCC 734: AIR 1997 SC 272.
25
BALCO Employee’s Union (Regd.) v. Union of India, (2002) 2 SCC 333: AIR 2009 SC 350; Villianur
Iyarkkai Padukappu Maiyam v. Union of India, (2009) 7 SCC 561: (2009) 8 JT 339.
26
Siemens Public Communication Networks Pvt. Ltd. & Anr. v. Union of India & Ors., (2008) 16 SCC 215.
PAGE | 3

limited to presence of bona fides or reasonableness.27

In the instant case, the petitioner being an NGO28 and not being an
aggrieved party, has no locus as such to maintain the present case before the Hon’ble Apex
Court. It lacks sufficient interest to put forward the case and further has failed to establish its
bona fide objectives to put the extra-ordinary judicial jurisdiction to motion.
[ ¶ 9 ] The petitioner does not acquire any locus standi- The petitioner is raising a mere
scholarly objection, without any locus standi. In the case of Mahinder kumar Gupta V. Union
Of India(1995) SSC 8,it was held that an association could not file a petition under Art
32.Registration is also a relevant factor for the locus standi of an association. In this case,
JANINI is an N.G.O and it is not provided by the fact sheet whether it is registered or not. So
It can be submitted that JANINI NGO has no locus standi.
B. Alternative remedy has not been exhausted.
A writ is an extra ordinary relief,29 granted only when existing alternative remedy in a statute
has exhausted. Further, the writ remedy cannot be used as an alternative remedy30or as a
means to adjudge any factual inconsistencies.31 The Supreme Court rejected a writ petition
filed under Article 32 stating that the petitioner’s in a case had an alternative remedy
available .32 In the case of Madhya Pradesh v. ITO33, The Supreme Court has held that when
there existed an alternative remedy then the writ petition would be dismissed by the court in
limine. The petitioners, in the case had not exercised the proper course of action provided by
the alternative remedies before filing the writ petition.
[ ¶ 10 ] The Supreme Court can dismiss a writ petition in limine in appropriate cases.
It is not an obligation to give appropriate reasons.34 Moreover if the Supreme Court entertains
these types of writs, then it will be flooded with social issues which the State and its domain
is not capable of accommodating.
1.3 Whether the clubbing of cases by Supreme Court is valid?
27
Tata Cellular v. Union of India, (1994) 6 SCC 651; Reliance Airport Developers Pvt. Ltd. v. Airports
Authority of India & Ors., (2006) 10 SCC 1.
28
Moot Proposition, ¶ 4.
29
SAMPATH IYENGAR (12TH EDITION OF 2012).
30
Institute of Charted Financial Analysts of India v. ACIT, (2002) 256 ITR 115 (AP).
31
Sahib Ram Giri v. ITO, 301 ITR 249; Dinesh Chand Jain v. Dy. CIT, 280 ITR 567.
32
Lokesh Katara v. High Court of Gujarat, (2017) 2 SCC 427.
33
Madhya Pradesh v. ITO, (1965) 67 ITR 637 (SC).
34
D.C. Saxena v. Hon’ble the Chief Justice of India, (1996) 5 SCC 216: AIR 1996 SC 2481.
PAGE | 4

Supreme court can club the petitions if it feels that each one the connected matters could be
heard at the same time. 35The clubbing of petitions Depends on the facts and nature of the
cases. If the grievances of the petitions are co-associated with one another. Clubbing can be
done.
In instant matter, the clubbing of petition is invalid as all the cases are not of same fact.
Some of them are in form of PIL while others seek remedy for violation of individual rights.
Although all cases are against personal laws but not of same nature as it do not cover the
same circumstances.
ISSUE II : WHETHER THE CONVERSION AND MARRIAGE OF DEVI IS VALID?
2.1 whether the conversion of Hamida from Devi is valid?
A. The conversion is a result of undue influence
In present case, the conversion of Hamida from Devi is invalid as Conversion was a result of
undue influence. It is submitted that such a conversion by the emotional threat or pressure or
undue influence cannot be said to be valid in the eyes of law36. It is important to note that
getting highly influenced by her classmates Devi to visit mosque frequently while pursuing
her graduation in another city. .This made the petitioner undergo Sahada ceremony and
change her name as Hamida.37So the conversation is not acceptable as her peer groups acted
as a tool of undue influence for conversion. In addition ,she was a minor, who was far away
from her hometown and parents ,which made the undue influence to act stronger on her and
leads her to converse the religion which is void in the eyes of law. At this point, it is pertinent
to note that few states have implemented laws criminalizing conversion resulting out of force,
fraud or undue influence.38The constitutionality of these Acts were challenged in light of
Article-25 of Constitution of India.39 The Apex court upheld the Constitutional Validity of
35
Justice S. Rajendra man and Justice A.R. Lakshmanan in The Hindu : Clubbing of Petitions on Gujarat
Incidents Ordered. Group Publication, 26 Sept. 2003. Web. 16 Aug. 2017.
36
Supra Note-1.
37
Para-3, Moot Proposition.
38
Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968; Orissa Freedom of Religion Act, 1967.
39
Digbijaya Missal v. State of Orissa, AIR 1977 SC 908; Evangelical Fellowship of India vs. State of Himachal
Pradesh, 2013 (4) RCR (Civil) 283.)
PAGE | 5

the Act. The Apex court opined that, these steps are legislatively stipulated precautions to
ensure that the process of renouncing one religion and adopting another is genuine, voluntary
and bona fide, and free from inducement, coercion and fraud. Following the reasoning of the
Apex Court it can be said that conversion by the undue influence cannot be said to be valid in
the eyes of law and subsequent actions on that conversion is also rendered invalid .Also,
conversion under compulsion is violative of Right to Freedom of Religion guaranteed by Art-
25 of Constitution of India.40 In the constitutional assembly debate Mr. K. M. Munshi had
passed a resolution making conversion by use of force undue influence illegal.41 As the
Article guarantees religious freedom subject to public order.42From the discussed case laws
and legal provisions, it can be said that the conversion of Devi was invalid as it was under
undue influence and it is invalid in the eyes of law. The Conversion of Devi is not valid on
account of her minority. At the time of conversion she was a minor who was under undue
influence.
B. marriage was the sole aim of conversion
[ ¶ 11 ] In this case, it is inferred from the fact sheet that marriage was the sole aim of
conversion. As soon after her conversion ceremony, she got married with Aslam without
informing her parents. Although she make them known later, but this act clearly shows her
intention and aim of conversion.
In Asfaq Qureshi v. Ayesha Qureshi19,43 the Family Court dismissed the petition for
restitution of conjugal rights on the grounds that even though the conversion of a party to
Islam admitted, it was only for purpose of marriage and not for faith in unity of God and
therefore, such conversion was void. In the Ratio Decidendi court opined-“No person shall be
allowed to exploit the religion for achievement of personal and selfish ends like marriage
without consent.”
So the conversion of Hamida from Devi is Invalid as it is done to achieve personal aims and
goals.
40
Article 25 of Constitution of Indiana
41
. The clause read as “Any conversion from one religion to another of
any person brought about by fraud, coercion or undue influence shall not be
recognised by law.”11 (11 CAD Vol III Part II Clause 17.
42
12 Rev. Stainislaus v. State of Madhya Pradesh and Ors. AIR 1977 SC 908.
(13 Santosh Kumar Pandey v. Ananya Pandey, AIR 2013 Chh 95.)(Kho)
43
19 AIR 2010 Chh 58, 2010 (3) CGLJ 28, 2011 (2) RCR (Civil) 478)
PAGE | 6

2.2 Whether the marriage of Devi is invalid?

A. Marriage ,on being subsequent to invalid conversion is also invalid
[ ¶ 12 ] It is humbly submitted that the marriage of Devi was invalid as Act

subsequent to invalid conversion is also invalid. As the conversion is invalid so subsequent
action on conversion is said to be invalid. If Marriage is subsequent action of a invalid
conversion that must be invalid. In this case, the conversion is proved invalid by above points
and marriage is subsequent and relies upon that conversion, so it is invalid.
According to Muslim law, a Muslim man can do Nikha only with Muslim women and
kitabiya women. If he marries outside of prescribed community, so, his marriage is declared
void. In this case, on declaration of Devi's conversion to be invalid, keeps her remain as a
Hindu .On Being Muslim, Aslam cannot make Nikha with Devi and marriage is invalid on
the ground of no conversion of spouse. Savita Ben Somabhai Bhatiya vs. State of
Gujrat16,A marriage between a Muslim and A Hindu is Invalid. So the marriage is said to
have no existence in the eyes of law.
B. Free consent of competent parties for marriage was not there
44
[ ¶ 13 ] Muslim marriage is in form of civil contract. Marriage shall be entered into
only with the free and full consent of the intending spouses.45 The consent should be without
fear or undue influence. If the presence of coercion, undue influence is found, the marriage is
declared invalid.46 According to Wilson, as what to amounts to coercion or compulsion
depends upon the circumstances of each case. The fact that on her 18th birthday she married
Aslam, shows that it was an intended decision, which was taken by her on her stage of
minority. So it cannot be said to be taken in free consent as there might be some factors of
undue influence on her Like Love. In addition, consent of natural guardian is also missing in
this case. Marriage, the termination can be validated.
2.3 Whether the doctrine of parens patriae is to be entertained by this Hon’ble court?
A. parens patriae can be applied in present circumstances
[ ¶ 14 ] Considering Hamida as a victim of love jihad, the high court has declared her
44
21 B.R. Ambedkar, Clause 17, Part II, Vol. 3, Constitutional Assembly Debates.
45
22 Article 23(3) ICCPR; Article 16(2) UDHR, 1948.
46
24 Mulla, Principle of Mahomedan Law
PAGE | 7

marriage as void. The young girl, of age of eighteen is considered as vulnerable When
Aslam, the husband of Hamida was accused of having connections with radical terrorist
groups It is valid for the court to ,the court to apply parens patriae jurisdiction . In Charan
Lal Sahu v. Union of India10, the Constitution Bench, while delving upon the concept of
parens patriae, stated:In the “Words and Phrases” Permanent Edition, Vol. 33 at page 99, it is
stated that parens patriae is the inherent power and authority of a legislature to provide
protection to the person and property of persons non sui juris, such as minor,
insane, and incompetent persons,
[ ¶ 15 ] In present case, .High court had exercised parens patriae jurisdiction

treating welfare of the girl as the paramount concern. So the decision is valid. In
instant case, the girl is at a vulnerable age and capable of being exploited in many ways. The
partner whom she has choosed immaturely without the consent of her parents is accused of
having connections with radical terrorist groups, which is a threat to the security of the girl.so
in this case, Court should exercise its parens patriae jurisdiction to ensure the safety of the
girl and it can be discharged only by ensuring the girl in safe hands.
B. Should the writ of habeas corpus be granted in present case

[ ¶ 16 ] Habeas corpus cannot be grant against those person who is entitled to
legal custody Writ of habeas corpus is only remedy against the illegal detention47. Writ of
habeas corpus can be issued when the detention of a minor is by a person who is not entitled
to his legal custody. Justice R.Banumati and Justice R.Subash Reddy stated that, the writ of
habeas corpus is maintainable, where it is proved that the detention of a minor child by a
parent or others was illegal and without any authority of law.
There are no other persons in this world, who would consider the welfare and wellbeing of
their daughter to be of paramount importance than her parents. So here The write of habeas
corpus can’t be granted.
ISSUE III: WHETHER MUMTAZ BEGUM IS ENTITLED TO BE GOVERNED AND GET
MAINTENANCE UNDER SEC 125-128 OF CRPC ?
47 Kanu sanyal V.Dist.Magistrate,Darjeeling,1974 SCR (3)279 1974 SCC (4)

PAGE | 8

3.1Whether the rejection of application of Mumtaz begum under section 5 of protection

of rights on divorce act with a motive to be governed by sec 125-128 of CrPC is valid?
[ ¶ 17 ] As it is in personal law to which she is subject, So the rejections of application
is valid according to the provisions of the said law. Section 5 in The Muslim Women
(Protection of Rights on Divorce) Act, 1986 provides Option to be governed by the
provisions of section 125 to 128 of Act 2 of 1974.—If, on the date of the first hearing of the
application under sub-section (2) of section 3, a divorced woman and her former husband
declare, by affidavit or any other declaration in writing in such form as may be prescribed,
either jointly or separately, that they would prefer to be governed by the provisions of
sections 125 to 128 of the Code of Criminal Procedure, 1973 (2 of 1974); and file such
affidavit or declaration in the court hearing the application, the Magistrate shall dispose of
such application accordingly. Explanation.—For the purposes of this section, “date of the
first hearing of the application” means the date fixed in the summons for the attendance of
the respondent to the application.48
[ ¶ 18 ] In present case, the application was filled by the petitioner without the
consent of her former husband.49Mumtaz begum while filing the petition was a divorcee and
as per the above mentioned provision of Muslim personal law she is not entitled to file the
application to be governed by 125-128 of CrPC without the consent of her former husband.
According to this provision of Muslim personal law, the consent of both was necessary which
was not found in present case.so it is humbly submitted the rejection of application of
mumtaz begum under section 5 of protection on rights to divorce act with a motive to be
governed by sec 125-128 of CrPC is not valid.
3.2Whether sec 5 of Muslim women protection on right to divorce act is constitutionally

valid?
[ ¶ 19 ] It is a provision of personal law and personal law cannot be considered

discriminatory. Muslim women protection of rights on divorce was enacted by parliament
respecting the personal law of Muslims and that itself is a legitimate basis for making a
differentiation; that a separate law for a community on the basis of personal law applicable to
such community, cannot be held to be discriminatory. In present case, the application of
48
Section 5 in The Muslim Women (Protection of Rights on Divorce) Act, 1986
49
Para 6 of moot proposition.
PAGE | 9

Mumtaz begum under section 5 of this act with a motive to be governed by provisions of sec
125-128 of CrPC when rejected on the provision of personal law, does not lead to
miscarriage of justice.
[ ¶ 20 ] This provision of personal law is now being continued by the legislative

enactment and the entire policy behind the Act is to preserve the personal law preventing the
vagaries. This provision of personal law fulfils the purpose of not to make a Muslim
Divorcee Woman destitute and at the same time, not to penalize the husband. The impugned
Act resolves all issues, bearing in mind the personal law of Muslim community.
A. Do not violate right to equality

[ ¶ 21 ] If there are two laws covering a situation, one is more drastic than other, there
is a danger to equality.50To curtail the chance of discrimination, the courts insist that the
drastic law should lay down some rational and reasonable principle, or else it will be declare
void under Art 14.51
[ ¶ 22 ] In present case, Cr.P.C is not drastic than the provisions provided under
Muslim women right to protection on divorce act. As the purpose of both the law is same.
Art 15(1) grants a right to an individual citizen and not to a class of citizens52Which restricts
the right of a class of citizens may belong to a particular religion would there for not attract
the wrath of Clause (i) of Art 15 of the Constitution..(John vallamattom V. union of India)
2003 6 SCC 611,626,AIR 2003 SX 2902.Existence of different personal laws is justified
under Art 15(1) because religion is not the only53basis of54classification and such difference
does not result in discrimination prohibited by that Article 15.
B. The section protects fundamental rights and ensure secularism
[ ¶ 23 ] Under Muslim law, the married wife’s right to maintenance from her husband
is absolute55 But After the divorce, she loses that right. A divorcee wife is only entitles to get
50
Maganlal chhaganlal V Greater Municipality AIR 1974,Sc 2009
51
.(Northern India Caterers V state of Punjab, AIR 1967 SC 1581:3 SCR 399.) -905 page mp jain
52
.(Danial latifi v union of India 2001 SC C 740,749,766,AIR 2001 SC 3958)
53
(punjab province V. daulat singh 1945-46,73IA 59:AIR 1946 PC 66)
54
state of bombay v bombay education society AIR 1954,SC 561:(1995,SCR 568)
55
SECTION 124 OF compendium of personal laws
PAGE | 10

subsistence allowance during the Iddat period.56. husband is free from liability of paying
maintainece after the period of idaat(case input)57 The Muslim law has no provision
regarding the right to alimony after the Iddat period and the holy Quran is silent about its
extension.
[ ¶ 24 ] Section 125 does not make religious discrimination. Sec 125-128 of CrPC is
not affected by provisions of personal laws. The court has vast power under section 125 to
decide any amount as maintenance, which is justified in the facts and circumstances of the
case. Maintenance includes the expenses of food, lodging and other essential requirements
for the livelihood. The court examines the financial capacity of the husband and the actual
necessity of the wife. After that, fixes a monthly allowance. If the husband has enough
resources to extend financial support to his divorced wife, section 125 compels him to do so
and prevent the wife from starvation. Section 125 bounds the husband to take care of his wife
even after the divorce.
[ ¶ 25 ] In present case, Cr. P. C is not drastic than the provisions provided under
Muslim women right to protection on divorce act. As the purpose of both the law is same.
According to the judgment of Danial latif v. union of India.58
this provision of CrPC is inconsistent with the above mentioned provision of personal laws.
Personal laws are based on religious believes and practices. So If a Muslim is forced to be
governed by these sections of CR.P.C ,this will deprive him of his fundamental right of
freedom of religion provided under sec 25-29 of the Constitution,which enables muslims to
practice,professs their religion. assured by constitution of Indiana,This will also hurt the soul
of secularism in the land of Indiana.So the provision is valid.
ISSUE IV : WHETHER THESE CHALLENGED PRACTICES UNDER MUSLIM PERSONAL
LAW ARE CONSTITUTIONALLY VALID ?
4.1 .Whether the practices under muslim personal law can be challenged as being violative of
fundamental rights?
56
All india Muslim advocates forum v.osman khan ,II (1990) DMC 341 FB
57
Md. Siddique Ali vs. Mustt. Fatema Rashid, AIR 2007(NOC) 2037: 2007
58
AiR 2001 SC 3958:(2001) 7 SCC 740.
PAGE | 11

A. .personal law is not law under Art 13 of the constitution of Indiana and can not be
challenged on basis of violative to fundamental rights.
[ ¶ 26 ] It is humbly submitted by the Petitioner that the Hon’ble Court has no power
to introduce its own modern concepts in applying personal laws of the parties and has to
enforce the law as it is derived from authoritative sources. It is submitted that the court
cannot examine the constitutional validity of unliteral talaq, inhertence law, natural
guardianship of women in Muslim law since Part III of the Constitution does not imbibe
personal laws of the parties.59
[ ¶ 27 ] The Hon’ble Court in State of Bombay v. Narasu Appa Mali6024 has observed
that since the issues related to personal law fall under item 5 in the concurrent List III, 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. Considering this view, the constitutional validity of the practices of
unilateral talaq, inheritance and right to be natural guardian in Muslim personal law cannot
be challenged..
[ ¶ 28 ] Article 13 does not provide for “personal laws” as under the words “a custom
or usage” in Article 13(3). A custom or usage is distinct or exceptional to personal law.61
Further, Justice Gajendragadkar in State of Bombay v. Narasu Appa Mali (AIR 1952 Bom
84), observed as follows: “The Constitution of India itself recognises the existence of these
personal laws in terms when it deals with the topics falling under personal law in item 5 in
the Concurrent List— List III. This item deals with the topics of marriage and divorce;
infants and minors; adoption; wills, intestacy and succession; joint family and partition; all
matters in respect of which parties in judicial proceedings were immediately before the
commencement of this Constitution subject to their personal law. Thus it is competent either
to the State or the Union Legislature to legislate on topics falling within the purview of the
personal law and yet the expression “personal law” is not used in Art. 13, because, in my
59
Krishna Singh v. Mathura Athir (1981) 3 SCC 689.
60
AIR 1952 Bom. 84.
61
Justice chagla in state of Bombay v.narasu appa mali air1952 born 84
PAGE | 12

opinion, the framers of the Constitution wanted to leave the personal laws outside the ambit
of Part III of the Constitution. they did not wish that the provisions of the personal laws
should be challenged by reason of the fundamental rights guaranteed in Part III of the
Constitution and so they did not intend to include these personal laws within the definition of
the expression “laws in force.” Thus personal law cannot be challenged as being violative of
fundamental rights neither can be rewritten in name of social norms
[ ¶ 29 ] This view has been confirmed by this Hon’ble Court in Ahmedabad Women
Action Group v. Union of India, (1997) 3 SCC 573. In view of the position that provisions of
personal laws cannot be challenged by the reason of fundamental rights, it is submitted that
this Hon’ble Court cannot consider the constitutional validity of the principles of Muslim
Personal law
B.Personal laws do not grovide ground for discrimination.
[ ¶ 30 ] Equal protection means the right to equal treatment in similar

circumstances.6255 Unequal treatment can’t be done between equals is assured by right to
equality.6356 The concept of equality denies the universal application of every laws for all
persons who are by nature, attainment or circumstances in unequal position.64 It provides the
State with authority to make classification for reasonable purposes.65 On the basis of
Mere production of some inequality is not enough to make a statute void. .66 The legislature
has the discretionary power to make legitimate classifications on basis of reasonability.67 The
legislature has the discretionary power to make legitimate classifications on basis of
reasonability.68 A differential categorization does not violates Art. 14, it only happens when
there is no proper reasonable ground of classification.69Article 14 prohibits class legislation
62
Shrikishan Singh v. State of Rajasthan, 1955 (2) SCR 531: AIR 1955 SC 795; T.M.A. Pai Foundation v. State
of Karnataka, (2002) 8 SCC 481, 655; Govt. of A.P. v. Maharshi Publishers Pvt. Ltd., (2003) 1 SCC 95; Amita
v. Union of India, (2005) 13 SCC 721; State of U.P. v. Maqbool Ahmed, (2006) 7 SCC 521; Soma Chakravarty
v. State, (2007) 5 SCC 403, 411: AIR 2007 SC 2149.
63
T.M.A Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, 655: AIR 2003 SC 355.
64
Pannalal Bansilal Pitti v. State of A.P., (1996) 2 SCC 498: AIR 1996 SC 1023.
65
Gopi Chand v. Delhi Administration, AIR 1959 SC 609: 1959 Supp. (2) SCR 87; Babulal Amthalal Mehta v.
Collector of Customs, Calcutta, AIR 1957 SC 877: 1957 SCR 1110; H.P. Gupta v. U.O.I., (2002) 10 SCC 658;
Ameeroonissa Begum v. Mehboob Begum, AIR 1953 SC 91: 1953 SCR 404.
66
State of Bombay v. F.N. Balsara, AIR 1951 SC 318: 1951 SCR 682.
67
Anukul Chandra Pradhan v. Union of India, (1997) 6 SCC 1.
68
Air India v. Nergesh Meerza, (1981) 4 SCC 335: 1981 SCC (L&S) 599.
69
Ashoka Smokeless Coal India Pvt. Ltd. v. Union of India, (2007) 2 SCC 640, 697: (2007) 1 JT 125.
PAGE | 13

and not reasonable classification for the purpose of legislation.70 Equality secured by Article
14 does not mean absolute equality. It is to be held to be a comparative concept..71Existence
of equality of opportunity depends not merely on the absence of disabilities, but on presence
of abilities. It is not simply a matter of legal equality. De jure equality must ultimately find its
72
raison deter in de facto equality. Different classes of persons require separate treatment
according to the needs of society .73 Universal Application of the same laws may result in
74
inequality The legislature must have the power to classify persons and things upon
whom/which its laws are to be made applicable.75 The classification permitted by Art. 14
must upon reasonable grounds of distinction.76Equality clauses prohibits arbitrariness in State
action and ensure justice, fairness and equality of treatment.77 The principle of
reasonableness is an essential element of equality or non-arbitrariness, pervades the
uniformity of Art. 14 78. The doctrine of classification was only a subsidiary rule evolved by
the Courts to act as a gateway for the doctrine of equality.79
Life or personal liberty includes right to live with human dignity..80 It would include all
those aspects of life which go to make a person’s life precious, meaningful 81, worth-living82
and complete.83 There is an assurance to be protected against torture or assault by the State or
70
Budhan Chowdhry v. State of Bihar, AIR 1955 SC 191: 1955 (1) SCR 1045; Dharam Dutt v. U.O.I., (2004) 1
SCC 712, 747: AIR 2004 SC 1295.
71
I.R. Coelho v. State of Tamil Nadu,
72
Marri Chandra Sekhar Rao v. Dean, Seth G.S. Medical College, 1990 (3) SCC 130.
73
Chiranjit Lal Chaudhary v. Union of India, AIR 1951 SC 41.
74
Municipal Committee, Patiala v. Model Town Residents Association, AIR 2007 SC 2844.
75
R. Kaaruppan v. Government of India, AIR 2008 Mad 264.
76
State of W.B. v. Anwar Ali, AIR 1952 SC 75.
77
Union of India v. International Trading Co., AIR 2003 SC 3983.
78
E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555.
79
L.I.C. of India v. Consumer Education and Research Centre, AIR 1995 SC 1811.
80
Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746: (1981) 1 SCC 608;
Olga Tellis v. Bombay Corporation, AIR 1986 SC 180: (1985) 3 SCC 545; D.T.C. v. Mazdoor Congress Union
D.T.C., AIR 1991 SC 101: 1991 Supp. (1) SCC 600; Consumer Education & Research Centre v. Union of India,
(1995) 3 SCC 42.
81
New Reviera Cooperative Housing Society v. Special Land Acquisition Officer, (1996) 1 SCC 731; State of
Karnataka v. State of A.P., (2000) 9 SCC 572: (2000) 6 JT 1; Namada Bachao Andolan v. Union of India,
(2000) 10 SCC 664: 2000 Supp (2) JT 6; State of T.N. v. K. Sabanayagam, AIR 1998 SC 344: (1998) 1 SCC
318;.Shantistar Builders v. Narayan Khimalal Totame, AIR 1990 SC 630: (1990) 1 SCC 520; Virender Gaur v.
State of Haryana, (1995) 2 SCC 577; M.C. Mehta v. Union of India, (2004) 12 SCC 118: AIR 2004 SC 4016.
82
A.P. Pollution Control Board II v. M.V. Naydu, (2001) 2 SCC 62: 2000 Supp (3) JT 322; Chhetriya
Pardushan Mukti Sangharsh Samiti v. State of U.P., AIR 1990 SC 2060: (1990) 4 SCC 449; State of Madhya
Pradesh v. Kedia Leather & Liquor Ltd., (2003) 7 SCC 389: AIR 2003 SC 3236.
83
Bd. of Trustee of the Port of Bombay v. Nadkarni Dilip Kumar Raghavendra, AIR 1983 SC 109: (1983) 1
SCC 124.
PAGE | 14

its functionaries.84 The object of Art. 21 is to prevent injury upon personal liberty by the
State .85 to deprive a person of his life and personal liberty the procedure established by law
must be strictly followed 86 and must not be departed from to the disadvantage of the person
87
affected This right is not only a protection against executive action prevented by
law,,88rather its scope stretches up to the horizon of legislation. 89
While prescribing a
procedure for depriving a person of his personal liberty, it must conform to natural justice
90
and reasonable grounds, Leading a quality life by the people is the essence of Article 21. 91
The provision within its sweep not only embraces the physical existence but also covers
quality of life.92Any legislation made in contravention of these pre-dominant right must be
declared as ultra vires.93 The validity of a statute under Article 21 must be tested with
reference to Article 14.94
[ ¶ 31 ] In this case, right to equality cannot be said to be violated. Protected by

fundamental rights and hence cannot be declared void. Freedom of religion preserved under
95
Article 25(1) include practices which are integral parts of the religion itself They are the
beliefs and ideologies which are regarded by those who profess religion, to be conducive to
their religious well-being.96 It is upon the foundation of essential practices that the building
84
Munshi Singh Gautam v. State of M.P., (2005) 9 SCC 631, 637: AIR 2005 SC 402.
85
A.K. Gopalan v. State of Madras, 1950 SCR 88: AIR 1950 SC 27; Nareinderjit Singh Sahni v. Union of India,
AIR 2001 SC 3810: (2002) 2 SCC 210; Cf. Union of India v. Indo-Afghan Agencies, AIR 1968 SC 718: 1968
(2) SCR 366.
86
Makhan Singh Tarsikka v. State of Punjab, 1952 SCR 368: AIR 1952 SC 27.
87
Naranjan Singh Nathawan v. State of Punjab, AIR 1952 SC 106: 1952 SCR 395.
88
A.K. Gopalan v. State of Madras, 1950 SCR 88: AIR 1950 SC 27
89
Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746: (1981) 1 SCC 608.
90
Bachan Singh v. State of Punjab, AIR 1982 SC 1325: 1983 SCR (1) 145; Machhi Singh v. State of Punjab,
AIR 1983 SC 957: 1983 SCR (3) 413; Laxman Naik v. State of Orissa, AIR 1995 SC 1387: (1994) 3 SCC 381;
Gian Kaur v. State of Punjab, AIR 1996 SC 946: (1996) 2 SCC 648; Aruna Ramachandra Shanbaug v. Union of
India, (2011) 15 SCC 480: 2012 AIR SCW 3786.
91
Hinch Lal Tiwary v. Kamla Devi, (2001) 6 SCC 496: AIR 2001 SC 3215; Anwar v. State of J&K, (1970) 2
SCWR 276 (279): AIR 1971 SC 337: (1971) 3 SCC 104; National Human Rights Commission v. State of
Arunachal Pradesh, (1996) 1 SCC 742: AIR 1996 SC 1234; Louis De Raedt v. Union of India, (1991) 3 SCC
554; State of Arunachal Pradesh v. Khudiram Chakma, 1994 Supp. (1) SCC 615; State of Maharashtra v.
Prabhakar Pandurang Sanzgiri, AIR 1966 SC 424 (426): 1966 (1) SCR 702.
92
In re Noise Pollution (V), (2005) 5 SCC 733: AIR 2005 SC 3136; In re Noise Pollution (VI), (2005) 8 SCC
794.
93
Confederation of Ex-Servicemen Associations v. Union of India, (2006) 8 SCC 399: AIR 2006 SC 2945.
94
Reliance Energy Ltd. v. Maharshtra State Road Development Corporation Ltd., (2007) 8 SCC 1,21: (2007) 11
JT 1.
95
John Vallamattom v. Union of India, AIR 2003 SC 2902; Venkataramana Devaru v. State of Mysore, AIR
1958 SC 255.
96
A.S. Narayanan v. State of Andhra Pradesh, AIR 1996 SC 1765.
PAGE | 15

of religion stands. 97 The integral practices of a religion ought to be ascertained with reference
to the doctrines of that religion itself.98 A test has to be done to find out whether the nature of
the religion will be changed in connection to the change in that practice. If taking away of
that part or practice could result in fundamental change in the nature and character of that
99
religion, then such part could be treated as an essential part. The essential practice may
100
include such rites, rituals, observances, ceremonies and modes of worship. In this
case,these challenges practices can be considered as an integral or essential part of the
religion as instructed under holy quoran and has been in practice since time immemorial.
4.2.Whether the void declaration of the challenged practices will alter the basic
structure of the constitution?
A. will hurt the soul of secularism
[ ¶ 32 ] Secularism is a part of fundamental law and an inalienable segment of the
101
basic structure of the Constitution of Indiana. The word “Secular” exists only in the
Preamble of the Constitution and it embodies the quintessence of diverse facets of secularism
and secularism is a goal as well as a process102 It is a positive concept of equal treatment of
all religions103. The word ‘secular’ highlights the fundamental rights guaranteed by Arts. 25
to 29.104There is no intervention of the State in religious matters. The Constitution of
Democratic Republic of Indiana provides for freedom of religion as a fundamental right, to
give to its people the freedom of worship and religion and to outlaw discrimination on the
ground of religion (proposition) .
[ ¶ 33 ] If a Court has to strike down a law as anti-secular, it will do so only if it can
hold that law is violative of any of the Articles from 25 to 29.105 It is submitted that the State
97
Commissioner of Police v. Acharya Jagadishwarananda, AIR 2004 SC 2984.
98
Commissioner, Hindu Religious Endowments v. Lakshmindra Thirtha Swamiar, AIR 1954 SC 282.
99
Commissioner of Police v. Acharya Jagadishwarananda, AIR 2004 SC 2984: 2004 (3) SCALE 146.
100
N. Adithyan v. Travancore Devaswom Board, (2002) 8 SCC 106.
101
State of Karnataka v. Dr. Praveen Bhai Thogadia, AIR 2004 SC 2081.
102
Athiest Society of India v. Govt. Of Andhra Pradesh, AIR 1992 AP 310.
103
Bommai v. Union of India, (1994) 3 SCC 1.
104
Ismail v. Union of India, (1994) 6 SCC 360.
105
Cf. Ghulam v. State of UP, AIR 1981 SC 2198; Mithar v. Union of India, AIR 1983 SC 1.
PAGE | 16

has not only failed to implement a Directive106, it has violated the norm of the much wanted
‘secularism’ embodied in the Preamble of the Constitution itself [III.B.iii] by declaring this
act leads to the Violative of Secularism In 1976, through the 42nd Amendment of the
Constitution, the concept of secularism was made explicit by amending the Preamble.107 In a
Constitutional Assembly debate, Naziruddin Ahmed pleaded that the abrogation of a personal
law should not be treated as a regulation of secular affairs surrounding a religion or as a
measure of social welfare and reform.108 It was observed in State of Bombay v. Narasu Appa
Mali109 that both Hindus as well as Muslims in Indica have their own personal laws which are
based upon their religious texts and embody their own distinctive evolution and background.
Polygamy,Nikha halala,Nikha mutah,Nikha Misyar are essential religious practices and to
disregard them is a violation of the fundamental rights of Muslims. Each religious
denomination or organization enjoys complete autonomy in the matter of deciding as to what
rites and ceremonies are essential according to the tenets of the religion they hold.110 It is thus
contended that abrogation of these practices will violate u/a 25 and contravene the basic
doctrine of ‘secularism’.
B.Practices under Muslim personal law are based on holy scriptures and the court
cannot supplant its own interpretation to them.
[ ¶ 34 ] Practices in Muslim Personal Law are based on holy scriptures- Al – Quran
and sources based on Al-Quran. The Petitioner humbly submits that the practices of
polygamy111,Nikah halala112,Nikha mutah,Nikha Misyar are based on holy scriptures of
106
Tahir Mahmood, Muslim personal Law, 200 (1972).
107
S.R. Bommai v. Union of India, AIR 1994 SC 1918.
108
VII Constitutional Assembly Debates, 540-41 (1948).
109
State of Bombay v. Narasu Appa Mali,AIR 1952 Bom 84
110
Sarup v. State of Punjab, AIR 1959 SC 860 (866)
111
it is submitted that the Quran, Hadith and the consensus view allow Muslim men to have up to 4 wives at a
time. Though polygamy is permitted, it is not obligatory or encouraged; , Polygamy meets social and moral
needs and the provision for it stems from concern for women. In Muslim texts, Polygamy
112
Re Halala-The concept of “halala” is misunderstood by the Petitioners/Opponents. 15she is prohibited from
marrying her former husband unless she has
an intervening marriage with another man, this concept of intervening marriage is distortedly called “nikah
halala” by the Petitioners/Opponents. There is no concept of “nikah halala” in Islamic Jurisprudence. Further,
this concept of “halala” is grossly misunderstood, it is submitted that this procedure needs to be followed only if
the woman has been divorced from her first husband by way of Triple Talaq. In fact, out of nine permissible
forms of separation/talaq/divorce, eight forms of separation/talaq/divorce put no bar to take wife back into the
PAGE | 17

Muslim and hence cannot be examined by court the primary source of laws in Muhammadan
system is based on revelations compiled in the Quran and the Hadith which form the
authentic sources of Islamic Shariah113.the issue raised are against .
[ ¶ 35 ] The Holy Quran which is the word of God as revealed to Prophet Muhammad
is the first and supreme source of Islamic law.114 It is the foundation of muslim religion and
the fountain of Islamic law. The command of the Prophet and his Quranic rulings must be
obeyed without any deviation . Jurists therefore consider their rulings a binding, next to the
Quran and Hadith. Consensus signifies the agreement of all competent persons on an issue.
These persons should be, in the opinion of the Muslim community, worthy of inferring
rulings from the Quran and other sources of Shariah. Taken in this sense, consensus also
forms an important source of Shariah.
[ ¶ 36 ] Thus as mentioned above, all the sources of Muslim Personal law have been
approved and endorsed by the Holy Quran and the practices of marriage, divorce and
maintenance etc. are based on such sources all of which flow from the Holy Quran itself and
are not amenable to any amendment, interpretation or alteration. So in this case, the petition
to declare the practices of polygamy, Nikha halala, Nikha Muta, should not be entertained.
[ ¶ 37 ] . Courts cannot supplant its own interpretations over the text of scriptures.
Supreme Court cannot supersede Quran but only follow the laid down therein as is evident
from judgments like Danial Latifi & Anr. v. Union of India and Mohd. Ahmed Khan v.Shah
Bano Begum in Islam, nobody other than the God, can have legislative power115 and these
matters to be looked after by the legislature with a view to preserve it’s purity and the court
cannot legislate in these matters116
[ ¶ 38 ] The respondent humbly submits that the Court has on making occasions
refrained from making pronouncements to interpret religious scriptures. It has been held that
Articles 25 and 26 protect the essential part of religion and that when a question arises as to
what constitutes essential part of religion, the same should primarily be ascertained with
marriage. However, there is only one form i.e. irrevocable tripe talaq wherein Shariat law bars taking wife back
into the marriage unless the divorce wife enters into second marriage as per her choice and free will with
another man.
113
Abdul Rahim, Muhammadan Jurisprudence, 73 (2004 Edition).
114
Adams, Charles J. “Islamic Faith" in Introduction to Islamic Civilization, Cambridge UP,) R.M.
115
Mulla, Mohammedan Law, 15 (Dwivedi Law Agency, 2nd edition, 2007).
116
Maharshi Avadhesh v. Union of India 1994 Supp (1) SCC 713.
PAGE | 18

117
reference to the Doctrines of that religion itself . In Aga Mohamad Jaffer Bindanim v.
Koolsoom Beebee & Ors118the Court held that it would be wrong for the Court 119
a point of
this kind to attempt to put their own construction on the Koran in opposition to the express
ruling of commentators of such great antiquity and high authority120. Moreover, new rules of
law are not to be introduced because they seem to lawyers of the present day to follow
logically from ancient texts however authoritative, when the ancient doctors of the law have
not themselves drawn those conclusions121 Hon’ble Court in the case of The Commissioner,
Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur
Mutt AIR 1954 SC 282, 1954 SCR 1005 has held that those Articles protect the essential part
of religion and further that when a question arises as to what constitutes essential part of
religion, the same should primarily be ascertained with reference to the Doctrines of that
religion itself.
[ ¶ 39 ] Supported by acts- marriage is a social contract so deciding time and condition
before marriage do not violate. Islam treats the relationship of marriage in substance a civil
contract bearing spiritual and moral overtones and undertones:
c. Personal laws cannot be re-written in the name of Social Reform
[ ¶ 40 ] It is submitted by the Petitioner that social reform is to be brought gradually in
the community keeping in view that such community is ready for the reform. The exception
to the Freedom of Religion as provided in Article 25(2) enabling the state to make laws for
“social welfare and reform” cannot enable the legislature to “reform” a religion out of its
existence or identity.122 In this case, as the practices are highly found so it can not be said that
Muslim community across Indiana is ready for the reform. If such reforms are brought it will
be a gross injustice to them by violating fundamental rights.
D. In, conflict between fundamental rights and directive principles of state policy
fundamental right will be prevailed?
117
The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri
Shirur Mutt, AIR 1954 SC 282.
118
(1898) ILR 25 Cal. 9.
119
on 37 Wael B. Hallaq, The Formation of Islamic Law (Formation of the Classical Islamic World, 27),
Ashgate Publishing, 259-260, (January 2004).
120
Baker Ali Khan v. Anjuman Ara Begum, 30 I.A. 94.
121
Baqar Ali v. Anjuman (1902) 25 All. 236.
122
Sardar Sydena Taher Saifuddin Sahed v. State of Bombay, AIR 1962 SC 853.
PAGE | 19

[ ¶ 41 ] Though, Directive Principles of State Policy are important in realizing the

goals of the Constitution, the same should not override the fundamental rights guaranteed to
the people.123Art. 37 of the Constitution of India provides that though directive principles are
fundamental in governance of the country, they are expressly made non- justiciable. On the
other hand, fundamental rights are enforceable by the Courts,124 and the courts are bound to
declare as void any law that is inconsistent with the fundamental rights. The Directive
Principles has to conform and run as a subsidiary to the chapter on fundamental rights and in
case of any conflict between fundamental rights and directive principles, fundamental rights
would prevail. 125. The Constitution is founded on the bedrock of the balance between Part III
and Part IV,126 but one should not be given absolute primacy over the other. The goals set
out in the Part IV have to be achieved without the abrogation of the means provided for by
Part III. To destroy the guarantees given by Part III in order to achieve the goals of Part IV is
127
plainly to subvert the Constitution. Therefore, it is the responsibility of the government
to come up with a scheme which adequately preserves the fundamental rights of the
people.In this case, it is humbly submitted that those laws are closely related to religious
practice of Muslims, which are protected in freedom of religion under Art. 25, 26 and 29.In
personal law of Muslim.
4.3Whether in reference to the rules of international conventions and laws of foreign
land the practices can be declared void?
A. Whether in reference to the rules of international conventions these laws should be
declared void?
[ ¶ 42 ] Convention on the Elimination of all forms of Discrimination against Women
(CEDAW), United Nations Universal Declaration of Human Rights (UDHR), International
Covenant of Economic, Social & Cultural Rights,1966 and International Covenant of Social
& Political Rights,1966. Are some of the important conventions where Indiana is a party.
[ ¶ 43 ] In the Convention on the Elimination of All Forms of Discrimination Against
Women, the Government of the Republic of India declares that it shall abide by and ensure
these provisions in conformity with its policy of non-interference in the personal affairs of
any Community without its initiative .Article 1 of ICESCR and Article 27 of ICCPR
123
R K Dalmia v. Justice Tendulkar, AIR 1958 SC 538.
124
Art. 32, The Constitution of India, 1950.
125
State of Madras v. Champakam Dorarirajan, AIR 1951 SC 228.
126
Granville Austin, Cornerstone of a Nation (Indian Constitution) 75 Oxford India (1999).
127
Minerva Mills v. Union of India, AIR 1980 SC 1789.
PAGE | 20

recognize group rights for development of culture as well as religious identity of the
minorities It is submitted that Muslim Personal Law achieves the just balance between group
rights and individual rights and there is no conflict as such.Even Article 4(2) of the U.N.
General Assembly Resolution on Declaration on the Rights of the persons belonging to
National or Ethnic religious and linguistic minorities 1992 provides that, “States shall take
measures to create favorable conditions to enable persons belonging to minorities to express
their characteristics and to develop their culture, language, religion, traditions and customs,.
According to the composition of Indiana only 14% people of total population are Muslims so
they fall in the class of religious minorities. So international conventions instructs state to
preserve these practices instead of declaring them void. Moreover, Universal Declaration on
Cultural Diversity, 2001 reaffirms that culture should be regarded as the set of distinctive
spiritual, material, intellectual and emotional features of society or a social group, and that it
encompasses, in addition to art and literature, lifestyles, ways of living together, value
systems, traditions and beliefs and thus India, being a signatory to the same must also give
due regard to the cultural uniqueness of Muslim Personal Laws which are a part of their
religious and cultural identity.
[ ¶ 44 ] It is submitted that there is an universal urge to preserve one’s identity. In
India with its vast size and its people professing and practicing different ethnicity, belonging
to different religions, it is but natural to expect different groups of people to have the urge to
preserve their identity and there is distinction between cultural, religious, regional and
linguistic identity. In fact, the preservation of culture being the basic feature of the
fundamental right guaranteed under the Indian Constitution, any interference with the same
would lead to violation of Constitutional principles.
.
[ ¶ 45 ] B. Whether in reference to the laws of foreign land the practices can be
declared void? Muslim Personal Law as followed by Indian Muslims is based on four
schools of Sunni persuasion and thus, changes made in other countries following myriad
schools of law, belonging to different sects and cultures cannot serve as a guide for bringing
about changes to the personal law in our country. .Prasad Sarma v. State of 128“…it was held
that But in a pluralist society as existing in India, the task of carrying out reforms affecting
religious beliefs has to be left in the hands of the State. parliamentary democracy and
128
Assam (2015) 9 SCC 461(at page 497):
PAGE | 21

separation of powers between the executive, legislature and the judiciary are a part of the
basic structure of the Constitution of India. Thus dealing with these acts will create conflict
with the principles of democratic principles as enshrined in the Constitution of India.
Judge Koopmans,
“Democracy and human rights are, empirically speaking, closely connected; protection of one
at the expense of the other therefore always runs the risk of being counterproductive… if we
want to retain democracy, the courts should face their share of job” [Koopmans,“Legislature
and Judiciary: Present Trends” in New Perspectives for Common Law of Europe 337
(1978)]. Besides, in the land mark case of Dennis vs. U.S. 330 U.S .48 (1950), Justice
Frankfurter had observed: “Courts are not representative bodies. They are not designed to be
a good reflex of a democratic society.
In any event, changes made by foreign countries in Muslim Personal Law, their
understanding of the Muslim Personal Law cannot be the basis of interpretation by this
Hon’ble Court.
PAGE | 22

MEMORIAL for RESPONDENTS PRAYER
PRAYER
In light of the facts of the case, arguments advanced and authorities cited, it is humbly
requested that this Hon’ble court may be pleased to adjudge and declare that-
1. To ADHERE with the decision of the High Court of Methi and declare the conversion
and marriage of Devi to be invalid.
2. The challenged practices such as polygamy, Nikah Halala, Nikah Mutah and Nikah
Misyar are constitutionally valid.
3. Mumtaz Begum is neither entitled to be governed nor can get maintenance under
Sec.125 – 128 of CrPC of Indiana.
4. The challenged practices of Muslim law are constitutionally valid.
AND/OR
The Honorable Court may also be pleased to pass any other order which the Court may deem
fit, in the light of justice, equity and good conscience.
All of which is most humbly and respectfully prayed.
S/d…………………
Place: ‘ABC’ Counsel for the Respondents
Date:28th September,2019
PAGE | XVI

1 N.J. Yasaswy National Moot Court Competition, 2019: Janani AND Others. P

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

1 N.J. Yasaswy National Moot Court Competition, 2019: Janani AND Others. P

Uploaded by

Copyright:

Available Formats

Team Code- 01

1s t N.J. YASASWY NATIONAL MOOT COURT COMPETITION, 2019

IN THE HON’BLE SUPREME COURT OF INDIANA

JANANI AND OTHERS. PETITIONERS

UNION OF INDIANA RESPONDENTS

(Case concerning the discrimination against women in Muslim community)

MEMORIAL for RESPONDENTS

LIST OF ABBREVIATIONS ................................................................................................II

INDEX OF AUTHORITIES ............................................................................................... IIV

STATEMENT OF JURISDICTION .................................................................................. XII

SUMMARY OF FACTS.................................................................................................... XIII

STATEMENT OF ISSUES ............................................................................................... XIV

PRAYER ............................................................................................................................. XVI

1s t N.J. YASASWY NATIONAL MOOT COURT COMPETITION, 2019

AIR All India Reporter

All ER All England Reporter

CJ. Chief Justice

CrPC Criminal procedure Code of Indiana

DPSP Directive Principles of State Policy

SLP Special Leave Petition

1s t N.J. YASASWY NATIONAL MOOT COURT COMPETITION, 2019

IPC Indian Penal Code

NGO Non-Government Organization

PIL Public Interest Litigation

SCC Supreme Court Cases

SCR Supreme Court Reports

U.K United Kingdom

1s t N.J. YASASWY NATIONAL MOOT COURT COMPETITION, 2019

• Baker Ali Khan v. Anjuman Ara Begum, 30 I.A. 94.

• Baqar Ali v. Anjuman (1902) 25 All. 236.

1s t N.J. YASASWY NATIONAL MOOT COURT COMPETITION, 2019

• Bommai v. Union of India, (1994) 3 SCC 1.

• Cf. Ghulam v. State of UP, AIR 1981 SC 2198.

1s t N.J. YASASWY NATIONAL MOOT COURT COMPETITION, 2019

• Gian Singh v. State of Punjab, A.I.R. 1974 S.C. 1024 .

• Hem Raj v. State of Ajmer, A.I.R. 1954 S.C. 462.

• Krishna Singh v. Mathura Athir (1981) 3 SCC 689.

• Louis De Raedt v. Union of India, (1991) 3 SCC 554.

• Maharshi Avadhesh v. Union of India 1994 Supp (1) SCC 713.

1s t N.J. YASASWY NATIONAL MOOT COURT COMPETITION, 2019

• Minerva Mills v. Union of India, AIR 1980 SC 1789.

• Mithar v. Union of India, AIR 1983 SC 1.

• National Human Rights Commission v. State of Arunachal Pradesh, (1996) 1 SCC

1s t N.J. YASASWY NATIONAL MOOT COURT COMPETITION, 2019

• Sadhu Singh v. State of P.E.P.S.U., A.I.R. 1954 S.C. 271.

• State of Bombay v. Narasu Appa Mali,AIR 1952 Bom 84.

1s t N.J. YASASWY NATIONAL MOOT COURT COMPETITION, 2019

• The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra

• Union of India v. International Trading Co., AIR 2003 SC 3983.

1. Constitution of Indiana, 1950

1s t N.J. YASASWY NATIONAL MOOT COURT COMPETITION, 2019

2. C.K. Takwani, Lectures on Administrative Law 31 (2008)

1s t N.J. YASASWY NATIONAL MOOT COURT COMPETITION, 2019

1s t N.J. YASASWY NATIONAL MOOT COURT COMPETITION, 2019

1s t N.J. YASASWY NATIONAL MOOT COURT COMPETITION, 2019

1s t N.J. YASASWY NATIONAL MOOT COURT COMPETITION, 2019

CONSTITUTION OF INDIANA IS MAINTAINABLE?

ISSUE II : WHETHER THE CONVERSION AND MARRIAGE OF DEVI IS VALID?

ISSUE III: WHETHER MUMTAZ BEGUM IS ENTITLED TO BE GOVERNED AND GET

MAINTENANCE UNDER SEC 125 – 128 OF CR.P.C OF INDIANA ?

1s t N.J. YASASWY NATIONAL MOOT COURT COMPETITION, 2019

1s t N.J. YASASWY NATIONAL MOOT COURT COMPETITION, 2019

I. ISSUE 1 THE SPECIAL LEAVE PETITION FILED UNDER ARTICLE 136 IS