ROLL NO: 4310121074

BEFORE THE HON’BLE

SUPREME COURT OF INDIA

CIVIL APPEAL NO: _ /2023

UNDER ARTICLE 136 OF MAGICLAND CONSTITUTION

MR.SULTAN

(APPELLANT)

V.

MRS. SUFIA

(RESPONDENT)

A SPECIAL LEAVE PETITION IS FILED BEFORE THE

HON’BLE SUPREME COURT OF INDIA UNDER ART. 136
OF MAGICLAND CONSTITUTION CHALLENGING THE
DECISION OF HON’BLE HIGH COURT WHICH DECLARED
POLYGAMY AS UNCONSTITUTIONAL.

1
MEMORIAL ON BEHALF OF THE APPELLANT

2
 MADHUSUDAN

LAW

UNIVERSITY

MUSLIM LAW MOOT

COURT

SUBMITTED BY:

NAME: REEMSHA ZUBIYA ASIF

CLASS: L.L.B 2ND YEAR

SECTION: B

3
ROLL NO: 74

4
 TABLE OF CONTENTS

CONTENTS PAGE NO.

LIST OF ABBREVIATIONS-------------------------------------------------4

INDEX OF AUTHORITIES--------------------------------------------------5

BOOKS REFERRED----------------------------------------------------------5

STATUES REFERRED-------------------------------------------------------5

WEBISTES REFERRED-----------------------------------------------------5

TABLE OFCASES-------------------------------------------------------------6

STATEMENT OF JURISDICTION----------------------------------------7

STATEMENT OF FACTS----------------------------------------------------8

STATEMENT OF ISSUES---------------------------------------------------10

SUMMARY OF ARGUMENTS--------------------------------------------11

ARGUMENTS ADVANCED------------------------------------------------14

1. THAT THE APPEAL IS MAINTENABLE BEFORE THIS HON’BLE

SUPREME COURT-----------------------------------------------------------------14

2. THE PERSONAL LAWS CANNOT BE CHALLENGED FOR

VIOLATION OF FUNDAMENTAL RIGHTS------------------------------14

3. NOT BEGETTING OF CHILDREN DOES NOT AMOUNT TO MENTAL

CRUELTY--------------------------------------------------------------------------------18

PRAYER------------------------------------------------------------------- 27

5
 LIST OF ABBREVIATIONS

ADDL. Additional

AIR All India Report

ART Article

CONS Constitution

HC High Court

SC Supreme Court

SCC Supreme Court Cases

U/SEC Under Section

VS Versus

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 INDEX OF AUTHORITIES

BOOKS AND COMMENTARIES :

 AQIL AHMAD, MOHAMMEDAN LAW

 M.P JAIN, INDIAN CONSTITUITIONAL LAW, (8TH ED, 2018)

 DR. S.R. MYNENI , MUSLIM LAW

 MULLA, THE CODE OF CIVIL PROCEDURE (LEXIX NEXIX, 19TH ED, 2017)

 RATANLAL & DHIRAJLAL, CRIMINAL PROCEDURE CODE (30TH ED, 2018)

 K. D. GAUR, TEXTBOOK ON INDIAN PENAL CODE (6TH ED, 2016)

STATUTES REFERRED :
• THE CONSTITUTION OF INDIA, 1950.

• THE INDIAN EVIDENCE ACT, 1872.

• THE SHARIAT ACT,1937

• DISSOLUTION OF MUSLIM MARRIAGE ACT, 1939

• THE MUSLIM WOMEN ( PROTECTION OF RIGHTS AND DIVORCE) ACT, 1986

LEGAL WEBSITES

 www.indiankanoon.org

 www.legalservicesindia.org

 www.blogipleaders.com

7
 TABLE OF CASES

1) Rajendra Kumar Jain v. State (1980) 3 SCC 435: AIR 1980 SC 1510

2) Haryana state Industrial Corporation. v. cork Mfg. co. (2007) 8 SCC 359

3) C.C.E v. Standard Motor Products, AIR 1989 SC 1298;

4) N Suriyakala v. A Mohan Doss & ors. (2007) 9 SCC 196;

5) Narpat Singh v. Jaipur Development Authority, AIR 2002 SC 2036 12

6) Janshed Hormusji Wadia v. Board of Trustees, Port of Mumbai (2004) 3 SCC 214.

7) Balakrishna v. Rmaswami, AIR 1965 SC 195.

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 STATEMENT OF JURISDICTION

This Hon’ble Supreme Court of Magicland has the jurisdiction to try, entertain and dispose of the

present appeal under Art 136 of the Constitution of Magicland.

ART 136: SPECIAL LEAVE TO APPEAL BY THE SUPREME COURT

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant

special leave to appeal from any judgment, decree, determination, sentence or order in any

cause or matter passed or made by any court or tribunal in the territory of India

(2) Nothing in clause (1) shall apply to any judgment, determination and sentence or order

passed or made by any court or tribunal constituted by or under any law relating to the

Armed Forces.

9
 STATEMENT OF FACTS

For the sake of brevity, the material facts are presented.

BACKGROUND

ABOUT MAGICLAND

Magicland is a Sovereign, Secular, Democratic Republic, having its own written Constitution, which
guaranteed some Fundamental Rights to all its citizens. Personal laws applicable to the citizens
varied depending upon the religion to which one belongs. As far as Muslims are concerned, they
are governed by The Muslim Personal Law (Shariat) Application Act 1937. This law deals with
marriage , succession, inheritance and charities among Muslims.

MARRIAGE BETWEEN Mr. SULTHAN AND Mrs. SADIA

Ms. Sadia and Mr. Sultan both Muslims and citizens of Magicland got married in 2003 as per the
customs of the Muslim personal law. Although they are leading a happy married life, they could
not procreate children, despite appropriate medical treatment. Except for this fact, Mr. Sultan and
his parents looked after Ms. Sadia very well.

SECOND MARRIAGE OF Mr. SULTHAN

However, on the advice of parents, Mr. Sultan married another lady by name Ms. Sufia in 2010,
with the consent of Ms. Sadia. Ms. Sufia was informed in advance that she would be Mr.
Sultan’s second wife. Ms. Sufia accepted Mr. Sultan as her husband and their marriage was
performed as per the customs of Muslim personal law.

BIRTH OF A BABY BOY

In 2011, Ms. Sadia conceived, and her pregnancy was confirmed by doctors. Later, Ms. Sadia
gave birth to a baby boy. Mr. Sultan was happy with the child and he decided not to have any
more children from both the wives. Ms. Sufia was not happy with his decision and she insisted
on having her own baby. But for this fact, Mr. Sulhan was looking after both wives with same
affection.
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PETITION FILED FOR DIVORCE IN FAMILY COURT
Ms. Sufia filed a petition in the Family Court in 2015 seeking divorce from Mr. Sultan, under
section 2(viii)(f) of the Dissolution of the Muslim Marriage Act 1939. Her contention was that
by refusing to have children through her, her husband failed to treat her "equitably in accordance
with the instructions of Quran". The Family Court refused to grant divorce and observed that
refusing to beget children through her by her husband did not amount to failing to treat her
equitably.

APPEAL MADE BY Ms. SUFIA BEFORE THE HIGH COURT

Ms. Sufia filed an appeal in the High Court and challenged the decision of the Family Court on
the ground that refusal by her husband to beget children through her should be considered as
valid ground for divorce, because it also amounted to mental cruelty. Ms. Sufia has alternatively
pleaded that her second marriage with Mr. Sultan should be declared as null and void, as
polygamy is unconstitutional under Art 14, 15 and 21 of the Constitution. The High Court has
also accepted her contention that the system of polygamy violated the Fundamental Rights and
therefore declared her marriage as null and void.

CHALLENGING THE DECISION OF HIGH COURT IN SUPREME

COURT
Mr. Sultan filed an appeal before the Supreme Court of Magicland. He pleaded that he had not
caused any mental cruelty to his second wife and challenged the decision of the High Court
which declared polygamy as unconstitutional.

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 STATEMENT OF ISSUES

ISSUE 1

WHETHER OR NOT THE INSTANT CASE IS MAINTENABLE BEFORE THIS

HON'BLE SUPREME COURT OF MAGICLAND?

ISSUE 2

WHETHER OR NOT PERSONAL LAWS CAN BE CHALLENGED ON

VIOLATION OF FUNDAMENTAL RIGHTS?

ISSUE 3

WHETHER OR NOT BEGETING OF CHILDREN BY Mr. SULTHAN WOULD

CAUSE MENTAL CRUELTY TO Mrs. SUFIA?

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 SUMMARY OF ARGUMENTS

ISSUE 1: THAT THE APPEAL FILED BY THE APPELLANT IN THE SUPREME

COURT IS MAINTENABLE:

It is humbly submitted to this Hon’ble Supreme Court that under Article 136 of The Constitution

of Magicland, any person, aggrieved by any order or decision of the High Court in State can

approach the Supreme Court through an appeal. In the instant case, the High Court has gravely

erred in not exercising its inherent jurisdiction as provided under the Civil Procedure Code. This

has led to a loss to the Appellants and a violation of the principles of Natural Justice and

Fundamental Rights . The Appellants humbly submit that all grounds for appeal are satisfied and

hence, this Hon’ble Court adjudicate the same. The Petitioner has the locus standi to approach

the Hon'ble Supreme Court. Furthermore, the jurisdiction Of Supreme Court can always be

invoked when a question Of law of general public importance arises. Also, in case at hand the

'substantial' questions of law are involved. The questions of declaration of polygamy as

unconstitutional by the High Court are substantial question of law and of general public

importance. Hence Article 136 can be invoked for the same.

ISSUE 2: PERSONAL LAWS CAN NOT BE CHALLENGED ON VIOLATION OF

FUNDAMENTAL RIGHTS.

It is most humbly submitted before the Court that personal laws can't be challenged on violation

of fundamental rights because the High 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 further submitted that the court cannot examine the constitutional

validity of practices of marriage, maintenance or divorce in Muslim law since Part Ill of the

Constitution does not imbibe personal laws of the parties and the order of the High Court is not

valid . In this case, there has been violation of justice caused by the dismissal of the matter by the
13
High Court. The Counsel for the Appellants humbly requests this Hon’ble Supreme Court to

correct the same and hear this matter. Here the High Court has been gravely wrong in not

exercising its inherent jurisdiction in the instant matter.

ISSUE 3: BEGETING OF CHILDREN BY Mr. SULTHAN WOULD NOT CAUSE

MENTAL CRUELTY TO Mrs. SUFIA?

It is most humbly submitted before this Hon'ble Court that the individual has sovereignty over

his/her body. He/she can surrender his/her autonomy willfully to another individual and their

intimacy in privacy is a matter of their choice. Such concept of identity is not only sacred but is

also in recognition Of the quint essential facet of humanity in a person's nature. So therefore

begetting of children by Mr. Sultan is a matter of his personal right. Cruelty is the ground for

divorce which is not present in the instant case.

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 ARGUMENTS ADVANCED

ISSUE 1:THAT THE APPEAL FILED BY THE APPELLANT IN THE HON’BLE

SUPREME COURT IS MAINTAINABLE :

It is most humbly submitted that the Appeal filed by the Appellant under ART.136 of the

Constitution of Magicland is maintenable before this Hon’ble Supreme Court. Article 133 of The

Constitution of Magicland says that any person, aggrieved by any order or decision of the High

Court in State can approach the Supreme Court through an appeal. In the instant case, the High

Court has gravely erred in not exercising its inherent jurisdiction as provided under the Civil

Procedure Code. The Constitution of India under Article 136 vests the Supreme Court of India

with a special power to grant special leave to appeal against any judgment or order or decree in

any matter or cause passed or made by any Court/tribunal in the territory of India. This is special

power bestowed upon the Supreme Court of India which is the Apex Court of the country to

grant leave to appeal against any judgment in case any substantial constitutional question of law

is involved or gross injustice has been done .

SPECIAL LEAVE PETITION OR SLP CAN BE PRESENTED UNDER FOLLOWING

CIRCUMSTANCE:

 SLP can be filed against any judgment or decree or order of any High Court /tribunal in
the territory of India.
 SLP can be filed in case the High court refuses to grant the certificate of fitness for
appeal to Supreme Court of India.

DISCRETIONARY POWER OF SUPREME COURT UNDER ART. 136

The Constitution vest “discretionary power” in the Supreme Court. The Supreme Court of India
may in its discretion be able to grant special leave to appeal from any judgment or decree or
order in any matter or cause made or passed by any Court/tribunal in the territory of India. The
15
Supreme Court of India may also refuse to grant the leave to appeal by exercising its discretion.
An aggrieved party from the judgment or decree of high court cannot claim special leave to
appeal as a right but it is privilege which the Supreme Court of India is vested with and this
leave to appeal can be granted by it only. An aggrieved party can approach the Apex Court under
Article 136 in case any constitutional or legal issue exists and which can be clarified by the
Supreme Court of India. This can be heard as civil or criminal appeal as the case may be. This is
“residual power” vested with the Supreme Court of India.

In the case of Pritam Singh v. the State [AIR 1950 SC 169]

“The Constitutional Bench observed that the Supreme Court is vested “wide discretionary
power” under this article to interfere with the orders of the lower Courts and this power is
required to be exercised sparingly and only in exceptional cases where substantial and grave
injustice has been done and the case in question presents features of sufficient gravity to warrant
a review of the decision appealed against.”

In the case of Kunhayammed vs. State of Kerala [2000) 245 ITR 360 (SC)]

“The court observed that under Article 136 of the Constitution, the Supreme Court may reverse,
modify or affirm the judgment-decree or order appealed against while exercising its appellate
jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for
special leave to appeal. The doctrine of merger can therefore be applied to the former and not to
the latter.”

In the case of N. Suriyakala Vs. A. Mohan doss and Others (2007) 9 SCC 196

“The Supreme Court observed with regard to scope of Article 136 that Article 136 of the
Constitution is not a regular forum of appeal at all. It is a “residual” provision which enables
the Supreme Court to interfere with the judgment or order of any court or tribunal in India in its
discretion.”

In the case of Tirupati Balaji Developers Pvt. Ltd. Vs. State of Bihar [AIR 2004 SC 2351]

“This Court observed that Article 136 is an “extraordinary jurisdiction” vested by the
Constitution in the Supreme Court with implicit trust and faith, and extraordinary care and
caution has to be observed in the exercise of this jurisdiction. The court further observed that
Article 136 does not confer a right of appeal on a party but vests a vast discretion in the
Supreme Court meant to be exercised on the considerations of justice, call of duty and
eradicating injustice.”

In the case of Jamshed Wadia Vs. Board of Trustees, Port of Mumbai [AIR 2004 SC 1815]

“The court further said that this discretionary power is permitted to be invoked not in a routine

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fashion but in very exceptional circumstances as when a question of law of general public
importance arises or a decision sought to be impugned before the Supreme Court shocks the
conscience. It has to be exercised sparingly and only in furtherance of the cause of justice in the
Supreme Court in exceptional cases only when special circumstances are shown to exist.”

In this present case, the decision of the Hon’ble High Court in declaring polygamy

unconstitutional and the second marriage of the appellant void is completely erroneous and has

led to a loss to the Appellants and a violation of the principles of Natural Justice and

Fundamental Rights . The Appellants humbly submit that all grounds for appeal are

satisfied and hence, this Hon’ble Court adjudicate the same. The Petitioner has the locus standi

to approach the Hon'ble Supreme Court. Furthermore, the jurisdiction Of Supreme Court can

always be invoked when a question of law of general public importance arises. Also, in case at

hand the 'substantial' questions of law are involved. The questions of declaration of polygamy

as unconstitutional by the High Court are substantial question of law and of general public

importance. The Hon’ble High Court has made a grave erroneous judgment in declaring

polygamy as unconstitutional and has arbitrarily interfered in the Muslim Personal Law Hence

Article 136 can be invoked for the same.

This case involves a matter of general public importance and it substantially affects the rights of

the parties as the order is erroneous and prejudicial to the interest of the Appellant. Thus it is

most humbly submitted that substantial and grave injustice has been done to the Appellant and

thus the case in question presents features of sufficient gravity to warrant a review of the

decision appealed against. Thus it is most humbly submitted that the Appellant has the Right to

file an Appeal under Art. 136 of the Constitution of Magicland.

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ISSUE 2: PERSONAL LAWS CAN NOT BE CHALLENGED ON

VIOLATION OF FUNDAMENTAL RIGHTS

It is most humbly submitted before this Hon'ble Court that the institution of polygamy under

Muslim law doesn't violates the fundamental right because polygamy is a practice which is

permitted in Muslim Personal law and has been clearly mentioned in Quran. Art. 25 of

Constitution of Magicland provides for freedom of religion, which means every person has the

right to freely practice, profess and propagate his religion and religious practices or

performances of acts in pursuance of religious belief are as much a part of religion as faith or

belief in particular doctrines. So the Court does not have the right to interfere in their personal

religious practices.

PRACTICES IN MUSLIM PERSONAL LAW ARE BASED ON HOLY

SCRIPTURES AL -QURAN AND COURT CAN'T MAKE SUPPLANT ITS OWN
INTERPRETATIONS OVER THE TEXT OF SCRIPTURES

The Holy Quran which is the word of God as revealed to Prophet Muhammad is the first and

supreme source of Islamic law. 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. Also the Shariat Act, 1937 in India protects the

application of Islamic laws in personal legal relationships. It clearly states that in matters of

personal disputes, the State shall not interfere and a religious authority would pass a declaration

based on his interpretations of the Quran and the Hadith. Thus, it is submitted that the issues

arising in the present matter can only be decided as per Muslim Personal Law, which derives its

sanctity from the Holy Quran and Hadith. It is submitted that principles of Marriage and

Polygamy are inter woven with religious and cultural rights Of a Muslims.

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In Githa Hariharan v. Reserve Bank Of India , it was held that Personals laws have become

an island within the Indian Constitution immune from any challenge on the ground that they

violate the right to equality of women.

The Hon'ble Court in State of Bombay v. Narasu Appa Mali has observed that since the issues

related to personal law fall under Entry 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 marriage, divorce and maintenance in Muslim

personal law cannot be challenged.

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. The phrase "personal

law" has been mentioned in Entry 5 of List III which means-

 That such omission was conscious

 That the intention was to leave these personal laws to the scrutiny of the legislature and not

the judiciary.

The Mohammedan Law is essentially founded on the Holy Quran and thus cannot fall within the

purview of "laws in force" in Article 13 and hence its validity cannot be tested as against

fundamental rights in part Ill of the Constitution. If personal laws are covered under Articles 13

and 372 of the Constitution, they will be void to the extent that they are in contravention of

Articles 14, 15 and 21 of the Constitution.

DECLARATION OF POLYGAMY AS UNCONSTITUTIONAL LEADS TO VIOLATION

OF SECULARISM AND FUNDAMENTAL RIGHTS

Secularism means that the State should have no religion of its own, and no one could proclaim to

make the State house or endeavor to create a theoretic state. Each person whatever be his

19
religion, must get assurance from the State that he has the protection of law freely to profess,

practice and propagate his religion and freedom of consciences. Secularism is a part of

fundamental law and an inalienable segment of the basic structure of the Constitution. 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 process. The Appellant submits

that the principle of equality as between all religions is 'more than a passive attitude of religious

toleration". It is a positive concept of equal treatment of all religions.

The word 'secular' highlights the fundamental rights guaranteed by Arts. 25 to 29. It was further

held that Secularism is absolute; the State may not treat religions differently on the ground that

public order requires it. It is submitted that the State has violated the norm of the much wanted

'secularism' embodied in the Preamble of the Constitution itself and declaration of polygamy as

unconstitutional may cause problem to peace and integrity of a state.

It is further submitted that Religion is the matter of faith and conscience. Muslim Personal Law

being the very core of Islamic religious faith amalgamates in itself 'belief, 'practice' and

'propagation' as guaranteed under Art. 25 and 26 of the Constitution. The protection of Article 25

and 26 is not limited to matters of doctrine or belief, but it extends to the acts done in pursuance

of religion and therefore contained a guarantee for rituals and observances, ceremonies and

modes of worship which are integral parts of religion. What is essential part of a religion or what

its religious practice has to be judged in the light of its doctrine and such practices as are

regarded by the community as a part of its religion must also be included in them .The practices

in a religion are therefore peculiar to that particular religion only. Thus, a religion cannot be

adjudged as being unequal in rights to another religion. These practices have been protected

under Art. 25, 26 so that the exclusivity of each religion is protected. Therefore, the Appellant

humbly submits that the practices in the instant matter are protected by Articles 25 and 26 and

striking of polygamy would be in violation of it.

In Aga Mohamad Jaffer Bindanim v. Koolsoom Beebee & Ors the Court held that it would be
20
wrong for the Court on 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 authority.

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 conclusions.

Under Muslim Law polygamy is allowed. A man can marry four wives at a time. The

Constitution saving the essence of personal laws cannot make it ultravires, unless and until it

hampers the wives’ right to equality, non-discrimination on the basis of gender and right to life.

This present case does not falls within the above mentioned rights as the practice of polygamy

also safeguards the rights of women in Muslim Law.

Also as per The Muslim Women ( Protection of Rights and Divorce) Act, 1986 which states

that if a man treats all his wife equally and respectfully, then he has the right to marry upto 4

wives. Otherwise he shall be held accountable. In this present case the Appellant has married the

Respondent as a second wife with her free consent in her sound mind. Since she has voluntarily

married him, knowing fully that the Appellant already has a first wife living. After marrying she

has no right to say that polygamy is unconstitutional. If she had any such objection to polygamy

she should have not have married the Appellant in the first place. Also polygamy is permitted in

Muslim personal law and is clearly mentioned in the Quran. So it is humbly submitted by the

Appellant that the High 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 practices of

marriage, maintenance or divorce in Muslim law since Part III of the Constitution does not

imbibe personal laws of the parties. Personal laws doesn't fall within the purview Of Art. 13.

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ISSUE 3: WHETHER NOT BEGETING OF CHILDREN BY MR. SULTHAN WOULD

CAUSE MENTAL CRUELTY TO MRS. SUFIA?

It is most humbly submitted before this Hon'ble Court that begetting of children doesn't cause

mental cruelty because right to refuse to have sex is a fundamental right. The right to privacy is

an element of human dignity which is essential for a human being to fulfill the liberties and

freedoms which are the cornerstone of the Constitution. Intimacy, marriage, the liberty of

procreation, the choice of a family life are all individual choices and a matter of personal liberty

and no other person, not even the Court has the right to interfere in someone’s private life. The

Respondent has alleged that the Appelant has inflicted cruelty on her by not begetting children

with her. But in fact the Appellant has not inflicted any cruelty on her.

Under S.2(viii) of Dissolution of Muslim Marriage Act, 1939 cruelty includes the following:

(a) Her husband habitually assaults her or makes her life miserable by cruelty of conduct
even if such conduct does not amount to physical ill-treatment, or"
(b) associates with women of evil repute or leads an infamous life,
(c) attempts to force her to lead an immoral life, or (c) attempts to force her to lead an
immoral life,
(d) disposes of her property or prevents her exercising her legal rights over it
(e) obstructs her in the observance of her religious profession or practice
(f) if he has more wives than one, does not treat her equitably in accordance with the
injunctions of the Quran. "

TREATMENT OF EQUALITY AT ALL POINTS IS IMPOSSIBLE

Giving equal treatment to two or more wives does not mean only providing them equal food and

clothing but it also mean guaranteeing them equal love and affection .But in this instant case the

appellant has showed equal love and affection to both wives since it is impossible to treat

everybody equal in all sides. This was very well apprehended and the Quran lays down in

subsequent Ayat that: "You will not be able to deal equally with your wives however much you

wish to do so.” This means that it is not possible for a man to accord complete equality of

treatment to two or more wives under all circumstances and in all respects. The Law doesn't

demand that one should necessarily maintain absolute equality between the wives in respect of

love, emotional and sexual relationship.

22
In the case of Joseph Shine vs. Union of India [AIR 2017 SC 375]

“Supreme court held that the right to privacy depends on the exercise of autonomy and agency
by individuals. In situations where citizens are disabled from exercising these essential
attributes, Courts must step in to ensure that dignity is realised in the fullest sense. Familial
structures cannot be regarded as private spaces where constitutional rights are violated. To
grant immunity in situations when rights of individuals are in siege, is to obstruct the unfolding
vision of the Constitution.”

In the case of Navtej Singh Johar vs. Union of India, (AIR 2018 SC 4321)

“SC discussed the importance of sexual autonomy as a facet of individual liberty and
emphasised that the right to sexual privacy was a natural right, fundamental to liberty and
dignity.”

In the case of K.S. Puttaswamy vs. Union of India [(2017) 10 SCC 1)]

“Supreme Court emphasized that everyone is entitled to constitutional guarantees of privacy

and dignity; and that a life of dignity entailed that the “inner recesses of the human personality”
be secured from “unwanted intrusion”. It emphasized the importance of sexual autonomy as a
value which is integral to life and personal liberty under Article 21”.

In the case of Shamsunnisa Begum vs G. Subban Basha [ AIR 1994 SC 274] it was held:

“The test of cruelty is based in universal and humanitarian standards by the husband who
causes bodily or mental pain and endangers the wife’s health and safety.”

The Appellant here is a man of dignity and respectful in nature. According to the facts he has

never discriminated between his two wives. He has equally loved and cared for both of his

wives. He in fact denied children form both of his wives. He does not comply any of the

ingredients which would constitute mental cruelty or satisfy any definition of cruelty so as to be

alleged to have committed the same. Also the Appellant’s financial condition is not that good

and he is already bearing the financial responsibility of both his wives. He is worried that if the

family is blessed with another child he can't afford enough resources and basic need to the child.

He has refused to have baby because of the welfare of the family. The sanctity of marriage, the

liberty of procreation, the choice of a family life and intimacy is a matter of choice and no one

can be forced to have children otherwise it would be violative of someone’s right to life and

23
personal liberty. So therefore it is most humbly submitted that refusal of having a baby by Mr.

Sultan with the Respondent is a matter of his privacy and it doesn't amount to mental cruelty.

24
 PRAYER

The Appellant respectfully pray that this Hon’ble Supreme Court may graciously be pleased to

adjudge and declare that:

1. The present Special Leave Petition is maintenable.

2. Polygamy should be declared as Constitutional.

3. Not begetting of child does not amount to mental cruelty.

4. The Respondent is not entitled to divorce.

5. Pass any other or further orders as this Hon’ble Supreme Court may deem fit considering

the facts and circumstances of the present case and in the interest of justice, equity and

good conscience.

AND FOR THIS ACT OF KINDNESS, THE APPELLANT AS IN DUTY BOUND SHALL

EVER PRAY.

s/d___________________________

COUNSEL FOR THE APPELLANT

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26