TEAMCODE:

TEAM CODE: 003

003

ST
1 (SIL)
1ST (SIL)SHAMBHUNATH
SHAMBHUNATHINSTITUTE
INSTITUTEOF
OFLAW
LAWINDUCTION
INDUCTIONMOOT
MOOT
COURT COMPETITION, 2023
COURT COMPETITION, 2023

IN THE HON’BLE HIGHCOURT OF PRAYAGPUR

IN THE HON’BLE HIGHCOURT OF PRAYAGPUR

IN THE MATTER OF

IN THE MATTER OF
WOMAN ASSOCIATION & FIVE ORS .………………PETITIONER

WOMAN ASSOCIATION & FIVE ORS .………………PETITIONER

VERSUS

STATE OF PRADESH & ORS.………….RESPONDENT

VERSUS

(UNDER ARTICLE 266 OF THE CONSTITUTION OF INDIA)

STATE OF PRADESH & ORS.………….RESPONDENT

MEMORIAL ON THE BEHALF OF THE RESPONDENT

(UNDER ARTICLE 266 OF THE CONSTITUTION OF INDIA)

MEMORIAL ON THE BEHALF OF THE RESPONDENT

 1ST SIL INDUCTION MOOT COURT COMPETITION, 2023

MEMORIAL ON THE BEHALF OF THE RESPONDENT

TABLE OF CONTENTS

TABLE OF CONTENTS…………………………………………………

INDEX OF ABBREVATIONS…………………………………………..

INDEX OF AUTHORITIES……………………………………………..

• CASES CITIED

• BOOKS REFFERED

• STATUTES

• ARTICLES AND LEGAL JOURNALS

• LEGAL DATABASE

STATEMENT OF JURISDICTION………………………………….

STATEMENTS OF FACTS……………………………………………

ARGUMENTS PRESENTED…………………………………………

SUMMARY OF ARGUMENTS……………………………………….

ARGUMENTS ADVANCED………………………………………….

PRAYER………………………………………………………………..
 1ST SIL INDUCTION MOOT COURT COMPETITION, 2023

MEMORIAL ON BEHALF OF RESPONDENT

INDEX OF ABBREVIATION

& AND

AIR ALL INDIA REPORT

ANR ANOTHER

SCC SUPREME COURT CASE

SCR SUPREME COURT REPORTER

CLR CRIMINAL LAW REPORTER

ORS. OTHERS

H.C HIGH COURT

P. PAGE

/ OR

i.e THEREFORE

V. VERSUS

ART. ARTICLE
 1st SIL INDUCTION MOOT COURT COMPETITION, 2023

MEMORIAL ON BEHALF OF RESPONDENT

INDEX OF AUTHORITY

CASE CITED
1. Acharaj Singh V. State of Bihar,( AIR 1967)
2. The Commissioner of Hindu Religion and Charitable Endowments Department V. Sri
Lakshmindra Thirtha Swamiar of Shirur Mutt, AIR 1954 SC 282,289 & 291

3. Adelaid Co. V. The Commonwealth (1943) CLR 116-127

4. Ewanlangki-e-rymbai V. Jaintia Hills AIR ( 9561-9562, 2003)
5. Riju Prasad Sarma V. State of Assam (AIR 2015 SC 461,497)

6. The Commissioner of Hindu Religion and Charitable Endowments Department V. Sri

Lakshmindra Thirtha Swamiar of Shirur Mutt,( AIR 1954 SC 282,289 & 291)
7. S.P Mittal V. Union of Industan( AIR 1983 SC 51)
8. Puthota Chinnamma V. Director of Public Instruction (AIR 1964 SC 552)
9. S.P Mittal V. Union of Industan ( AIR 1983 SC 51)
10. Bramchari Sidheswar Shai V. State of W.B( AIR 1995 SC 646)
11. The Commissioner of Hindu Religion and Charitable Endowments Department V. Sri
Lakshmindra Thirtha Swamiar of Shirur Mutt, (AIR 1954 SC 282,289 & 291.)
BOOK REFERRED-
1. V.N.SHUKLA’S CONSTITUTION OF INDIA (Thirteenth edition) 2019.
2. M.P.JAIN’s INDIAN CONSTITUTIONAL LAW (Eighth edition) 2018.
3. P.M. BAKSHI’s THE CONSTITUTION OF INDIA (Eighteen Edition) 2021.
LEGAL DATABASE-
INDIAN KANOON.
SCC ONLINE.
CASE MINE.
1ST SIL INDUCTION MOOT COURT COMPETITION, 2023

MEMORIAL ON BEHALF OF RESPONDENT

STATEMENT OF JURISDICTION

The petitioner in the present case has approached the Hon’ble High Court of Prayagpur to initiate
the present appeal under Article 226 of the constitution of Industan. The Respondent most humbly
and respectfully submits the jurisdiction of the Hon’ble High court in present matter.

ARTICLE 226: Power of High Court to issue certain writs-

(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the
territories in relation to which it exercise jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories directions, orders or
writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and
certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for
any other purpose.

(2) The power conferred by clause (1) to issue directions, orders or writs to any Government,
authority or person may also be exercised by any High Court exercising jurisdiction in relation to
the territories within which the cause of action, wholly or in part, arises for the exercise of such
power, notwithstanding that the seat of such Government or authority or the residence of such
person is not within those territories.
 1ST SIL INDUCTION MOOT COURT COMPETITION, 2023

MEMORIAL ON BEHALF OF RESPONDENT

STATEMENT OF FACT

1.-Union of Industan is a Sovereign, Socialist, Secular, and Democratic Republic having a federal
Constitution providing for securing to all its citizens the cherished values of justice, liberty,
equality and fraternity.

2.-In the social sphere, there were movements for caste reform or caste abolition, for equal
rights of women, campaigns against child marriage and for removal of ban on widow remarriage.
It was a crusade against social and legal inequalities.

3.-The Miya Dargah, located in the capital city of Pradesh i.e. Nawabpur , is renowned for lakhs
of pilgrims thronging it all through the year. The dargah is also prominent for the selective ban on
women entering it. Women aged between 10 and 50, that is those who are in menstruating age,
are barred from entering the dargah. While there is no age restriction on women entering in any
other dargah in the state of Pradesh, thereby their entry is prohibited in Miya dargah only.

4.-This petition divided the society into two sects, one supporting the petition while others
denying it. The supporters took out the campaigns tackling women’s rights and gender inequality
on social media platforms. While the opposing group in one of the press conference stated that
they are not against the women’s right but with regard to the religious affairs, denominations or a
section thereof must be given the liberty to manage their affairs without State interference. As the
religious denomination are the best adjudicator and interpreter of the religion.

5-While the Miya Dargah Trust which maintains the dargah, had replied that the ban was in
accordance with centuries-old tradition as it is ‘grievous sin’ for women menstruating to enter in
the Dargah. Another argument put forth by the trust is that the freedom of managing religious
affairs guarantees them exclusive right to manage its own affairs.
6-Industan legal system is largely modeled on the Indian Legal system, thereby laws remains
almost in pari material with Indian law.
 1ST SIL INDUCTION MOOT COURT COMPETITIONN, 2023

MEMORIAL ON BEHALF OF RESPONDENT

STATEMENT OF ISSUE

1. Whether the petition before the High Court of Prayagpur is maintainable or not?

2. Whether the restriction imposed on the women on certain age amounts to violation of their
Fundamental Rights as enshrined in the Constitution?

3. Whether the Religion Denomination has the exclusive rights to manage its own affairs?
 1ST SIL INDUCTION MOOT COURT COMPETITION, 2023

MEMORIAL ON BEHALF OF RESPONDENT

SUMMARY OF ARGUMENTS

1. WHETHER THE PETITION BEFORE THE HIGHCOURT OF PRAYAGPUR IS

MAINTAINABLE OR NOT?

It is humbly submitted before this Hon’ble court that petition filed by the petitioner under Article
226 is not maintainable because Article 26 (b) of the Constitution of Industan says that religion
can manage its own affairs.

2. WHETHER THE RESTRICTION IMPOSED ON THE WOMEN OF CERTAIN AGE

AMOUNTS TO VIOLATION OF THEIR FUNDAMENTAL RIGHTS AS ENSHRINED IN
THE CONSTITUTION?

It is humbly submitted before this Hon’ble court that petition filed by the petitioner is not the
violation of Fundamental Rights because the restriction of women’s from 10 to 50 years in the
Miya Dargah is the centuries old tradition and Article 13(3)(a) state that “ Law” includes any
ordinance, order, bye laws, rules ,regulations, notification , custom or usage having in the territory
of Industan the force of law.

3 .WHERTHER THE RELIGION DENOMINATION HAS THE EXCLUSIVE RIGHT TO

MANAGE ITS OWN AFFAIRS?

It is humbly submitted before this Hon’ble court that the said practice has exclusive right to
manage its own affairs because Article 26(a) therefore, a religion 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 and no outside authority has any jurisdiction to
interfere with their decision in such matter.
 1ST SIL INDUCTION MOOT COURT COMPETITION, 2023

MEMORIAL ON BEHALF OF RESPONDENT

ARGUMENT IN ADVANCE

1. WHETHER THE PETITION BEFORE THE HIGHCOURT OF PRAYAGPUR IS

MAINTAINABLE OR NOT?
It is humbly submitted before this Hon’ble court that petition filed by the petitioner is not
maintainable on the ground that Article 26(b) state that religion can manage its own affairs.

1.Matter of religion includes religion practices, rituals, observances, ceremonies, mode and
manner of worship etc., regarded as the essential and integral part of the religion. For instance, In
ACHARAJ SINGH 1 it was held that, if bhog offered to the diety is a well established practice of
that religious institution, such a practice should be regarded as the part of religion.

2.Moreover, the landmark SHIRUR MUTT 2, which is one of the major cases which deal with
Article 25 & 26 was referred too with great importance . It enlarged the scope of Religion
under Article 26 and what are the matters under it. The judgment observed that a religion may
not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals
and observances, ceremonies and modes of worship which are regarded as integral parts of
religion, and these forms and observances might extend even to matters of food and dress.

1. Acharaj Singh V. State Of Bihar, AIR 1967

2. The Commissioner of Hindu Religion and Charitable Endowments Department V. Sri

Lakshmindra Thirtha Swamiar of Shirur Mutt, AIR 1954 SC 282,289 & 291
3.The apex court while deciding the afore-mentioned case very interestingly approached the
matter by mentioning a famous Australian Case of Adelaide Co 3 , which elucidated about
the free exercise of any religion in the Australian Constitution; Laiham C.J, was very instrumental
in purporting the idea about the integral part of a religion or a belief. While dealing with Section
116 of the Australian Constitution which inter alia forbids the Commonwealth prohibit he
explained that:

4.It is sometimes suggested in discussions on the subject of freedom of religion that,

though the civil Government should not interfere with religious opinions, it nevertheless
may deal as it pleases with any acts which are done in pursuance of religious belief without
infringing the principle of freedom of religion…Thus, the section goes far beyond protecting
liberty of opinion. It protects also acts done in pursuance of religious belief as part of religion.

2. WHETHER THE RESTRICTION IMPOSED ON THE WOMEN OF CERTAIN AGE

AMOUNTS TO VIOLATION OF THEIR FUNDAMENTAL RIGHTS AS ENSHRINED IN
THE CONSTITUION?

It is humbly submitted before this Hon’ble court that petition filed by the petitioner is not
violating any Fundamental Rights Enshrined in the Constitution on the ground that Article 13.

(3) (a) state that “ Law” includes any ordinance, order, by Law, rules ,regulations, notification ,
custom or usage having in the territory of Industan
the force of law.

1. A Custom or Usage is an action influenced by community tradition, which is usually repeated

in the same form on similar occasions.

2. A Usage or practice of the people, which ,by common adoption and acquiescence and by long
and unvarying habits, has become compulsory , and has acquired the force of a law with respect
to the place or subject matter to which its relates .

3. Adelaid Co. V. The Commonwealth (1943) CLR 116-127

3.It results from a long series of actions, constantly repeated , which have, by such repletion and
by uninterrupted acquiescence , acquired the force of a tacit and common consent. A habitual or
customary practice more or less widespread, which prevails within a geographical or sociological
area; Usage is a course of conduct based on a series of actual occurrences

4.In early times Custom was the main source of law but now, to a large extent, it has been
surpassed by the statutory law. However, customs has not wholly lost its law creating efficacy. A
reasonable and certain ancient custom is binding on courts like an ACT of Legislature.

5. Court in EWANLANGKI-E-RYMBAI 4 held that any practice or custom which followed and
continued for time immemorial without interruption becomes a custom. The practice of
restricting the entry of women between ages of 10-50 years forms an essential and integral part of
custom and usage of the Dargha, which protected by Article 25 and 26 of the Constitution. Since
the practice of restricting the entry of women between 10-50 years is a pre-constitution, it takes
the force of law as Article 13 includes custom and usages. The main characters of a practice to be
a valid custom are that it must be of immemorial existence, reasonable, certain, and continuous.

6. Court in RIJU PRASAD SARMA 5 the Court has observed that “religion beliefs, customs and
practices based upon religious faith and scriptures cannot be treated void”

3. WHERTHER THE RELIGION DENOMINATION HAS THE EXCLUSIVE RIGHT TO

MANAGE ITS OWN AFFAIRS?

It is humbly submitted before this Hon’ble court that petition filed by the petitioner that religion
denomination has exclusive right to manage its own affairs as-

1. Article 26 of the Constitution, State that every religious denomination or any section thereof
shall have right-
* To established and maintain institution of religious and charitable purpose;
* TO manage its own affairs in the matter of religion;
* To administer such property in of accordance with law;

4. Ewanlangki-e-rymbai V. Jaintia Hills AIR ( 9561-9562, 2003).

5. RIJU PRASAD SARMA V. STATE OF ASSAM (AIR 2015 SC 461,497)
2. This article deals with right of religion denominations. It guarantees to every religion
denomination or such section of it the right to established and maintain institution for religious
and charitable purpose and to manage in its affairs in matter of religion.

3. The term in religious denomination in Article 26 of the Constitution is different from that is
found in Article 30 of the Constitution which includes religion and lingual minorities. The extent
of the denomination is immaterial to exercise the protection under Article 26 of the Constitution.

4. In the Shirur Mutt 6 the Supreme Court has defined the expression “DENOMINATION” from
the Oxford dictionary as “a collection of individuals classed together under the same name: a
religion sects or body having a common faith and organization and designated by a distinctive
name”.

5. The expression “denomination” can also be used for member forming sects / sub sects of a
religion designated by a designated by a distinctive name7. Thus for e.g. Hindu religion the
followers of Ramanuja known by the name of Vaishnava, the followers of Madhawacharya, and
other religious teachers, will constitute denomination. Among Mohammedans, Hanfee, Shia/
Chisti sects are separate denomination and Dawoodi Bohra community is sub-sects of Shias.

6.It has been held that Roman Catholic Mission & Ananda Marga are religious denomination8
while Sri Aurobindo Society or Auroville9 is not persons belonging to or owing allegiance to Ram
Krishna Mission or Ram Krishna Math belongs to religious denomination within Hindu religion10
Article 26 contemplates not merely a religion but also a section thereof. Thus math or the spiritual
fraternity represented by it can legitimacy comes within the purview of this article 11

6. The Commissioner of Hindu Religion and Charitable Endowments Department V. Sri

Lakshmindra Thirtha Swamiar of Shirur Mutt, AIR (1954 SC 282,289 & 290)
7. S.P Mittal V. Union of Industan (AIR 1983 SC 51)
8. Puthota Chinnamma V. Director of Public Instruction (AIR1964 SC 552)
9. S.P Mittal V. Union of Industan (AIR 1983 SC 51)
10.Bramchari Sidheswar Shai V. State of W.B. (AIR 1995 SC 646)
11. The Commissioner of Hindu Religion and Charitable Endowments Department V. Sri
Lakshmindra Thirtha Swamiar of Shirur Mutt, (AIR 1954 SC 282,289 & 291)
7. Industan is a home of several religions, such as Hinduism, Islam, Christianity &
Zoroastrianism. The member belonging to each of these religions is denomination.
 1ST SIL INDUCTION MOOT COURT COMPETITION, 2023

MEMORIAL ON BEHALF OF RESPONDENT

PRAYER

WHEREFORE IN THE LIGHT OF ABOVE MENTIONED ISSUE RAISED, ARGUMENT

ADVANCED AND AUTHORITES CITED. IT IS HUMNLY RESQUESTED THAT THIS
HON’BLE COURT MAY BE PLEASED TO ADJUDGE AND DECLARE

1. That the present Curative Petition filed by the Petitioner is not maintainable.

2. That the entry of women age between 10 to 50 years should be banned in the Miya Dargah of
the Pradesh.

AND MAY PASS ANY SUCH ORDER, OTHER ORDER THAT IT DEEMS FIT IN THE
INTREST OF THE JUSTICE, EQUITY, AND GOOD CONSCIENCE.

AND FOR THIS, RESPONDENT AS IN DUTY BOUND SHALL HUMBLY PRAY

- RESPECTFULLY SUBMITTED BY

COUNCEL ON THE BEHALF ON RESPONDENT