35TH BAR COUNCIL OF INDIA (TRUST) ALL INDIA INTER-UNIVERSITY MOOT

COURT COMPETITION, 2019

Team Code: TC 30

IN THE HON’BLE SUPREME COURT OF PINDIANA

AT PINDIANA

WRIT PETITION (C) NO._____OF 201_

ASMA … PETITIONER

VERSUS

UNION OF PINDIANA …
RESPONDENTS

WITH

SPECIAL LEAVE PETITION (C) NO.______ OF 2019

MUKHTAR … PETITIONER

VERSUS

UNION OF PINDIANA …
RESPONDENTS

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS

COUNSEL APPEARING ON BEHALF OF THE PETITIONERS

BEFORE SUBMISSION TO HON’BLE JUSTICES OF CONSTITUTION BENCH

OF THE HON’BLE SUPREME COURT OF PINDIANA

2019
 TABLE OF CONTENTS

TABLE OF CONTENTS ---------------------------------------------------------------------------02

LIST OF ABBREVIATIONS -------------------------------------------------------------------03

INDEX OF AUTHORITIES ---------------------------------------------------------------------04

STATEMENT OF JURISDICTION ---------------------------------------------------07

STATEMENT OF FACTS -------------------------------------------------------------------08

ISSUES RAISED -----------------------------------------------------------------------------10

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

ARGUMENTS ADVANCED ----------------------------------------------------------------------12

I. WHETHER THE FUNDAMENTAL RIGHTS OF ASMA INFRINGED
THROUGH INSTANT TRIPLE TALAQ? 12
A. TALAQ IS NOT EFFECT WITH ARTICLE 14, 15 & 21. 12
B. ARTICLE 25, 26 R/W ART. 29 DOES NOT PROTECT TRIPLE TALAQ AS
AN ESSENTIAL RELIGIOUS PRACTICE 13

II. WHETHER THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON

MARRIAGE) SECOND ORDINANCE, 2019 IS VALID IN THE EYES OF
LAW? 14
A. THE ORDINACE IS IN VIOLATION TO ARTICLE 123 OF THE
CONSTITUTION OF PINDIANA 15
B. THE ORDINANCE VIOLATES THE FUNDAMENTAL RIGHTS AS
ENSHRINED IN THE CONSTITUTION 15

PRAYER ---------------------------------------------------------------------------------------17

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 TABLE OF ABBREVIATIONS

& And

AIR All India Reporter

Anr. Another

Art. Article

Edn. Edition

Hon’ble Honourable

i.e. That is

S.L.P Special Leave Petition

SCC Supreme Court Cases

v. Versus

Vol. Volume

W.P. Writ Petition

www World Wide Web

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 INDEX OF AUTHORITIES

A. Table of Cases

S. No. Name of the Cases and Case Citation Page No.

1 Githa Hariharan v. Reserve Bank of India, (1999) 2 SCC 228

2 Shamim Ara v. State of U.P. and Anr, (2002) 7 SCC 513

3 Kunimohammed v. Ayishakutty, 2010 (2) KHC 63

4 John Vallamattom v. Union of India, (2003) 6 SCC 611

5 Javed v. State of Haryana, (2003) 8 SCC 369

6 Khursheed Ahmad Khan v. State of Uttar Pradesh, (2015) 8 SCC 439

7 Riaz Fatma v. Mohammed Sharif I (2007) DMC 26; 135 (2006) DLT 205

8 Ummer Farooque v. Naseema 2005 (4) KLT 565

9 Nur Ali (Md) v. Thambal Sana Bibi 2007 (1) GLT 508

10 Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1

11 Shayara Bano v. Union of India & Others. 2017 (9) SCC 1

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 B. Treatises, Books, Reports And Digests

1 MULLA, Principles of Mahomedan Law (Lexis Nexis-Butterworths 19th edn, 15th

reprint, New Delhi, 2007)

2 D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, Y.V.

Chandrachud & S.S. Subbramani & V.R. Manohar & B.P. Banerjee eds., 8th
ed. 2012

C. Journals Referred

1 All India Reporter

2 Supreme Court Cases

3 Indian Law Reporter

D. Database Referred

1 www.judis.nic.in

2 www.lexisnexis.com

3 www.manupatrafast.com

4 www.scconline.com

E. Legal Dictionary

1 Aiyer P.R., Advanced Law Lexicon, (3rd ed., 2005)

2 Garner B.A., Black’s Law Dictionary, (9th ed., 2009)

3 Greenberg Daniel, Stroud’s Judicial Dictionary of Words and

Phrases, (4th ed.), Sweet and Maxwell, Vol. 4

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 4 Oxford Advanced Learners Dictionary, (7th ed., 2008)

F. Statutes Referred

1 The Constitution Of India, 1949

1.

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 STATEMENT OF JURISDICTION

WP(C) NO. _______ OF 201_

The Petitioner has approached this Hon’ble Court invoking Article 32 of the Constitution of
Pindiana.

Article 32 of the Constitution of Pindiana reads as follows:

“32. Remedies for enforcement of rights conferred by this Part-

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs
in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this
Part.”

SLP(C) NO._______ OF 2019

The Petitioner has approached this Hon’ble Court invoking Article 136 of the Constitution of
Pindiana.

Article 136 of the Constitution of Pindiana reads as follows:

“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, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the Armed
Forces.”

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 STATEMENT OF FACTS

1. Mukhtar and Asma are Sunni and Shia Muslim respectively by religion and both are
resident of State of Chind, Pindiana. Asma was very ambitious girl who completed
her education from a very prestigious college of London. She is very inclined towards
the teachings of Quran and follows the traditions firmly hence she is a religious
Muslim female whereas Mukhtar is a man who is influenced with the modern culture
of the society and influenced by the western culture and has a habit of occasional
drinking.
2. They happened to work together in a multinational company where they fell in love
and with mutual consent got married under Shariat Law. Asma was performing well
in her career and could foresee a high position in the company. Therefore she decided
not to have kids for few years of marriage. Mukhtar being an adamant person started
forcing Asma to have a baby.
3. Mukhtar picked up frequent quarrels with his wife and was habituated to drinking
regularly. The disputes between the two kept escalating as Mukhtar resorted to
forcible sex with Asma besides beating her frequently.
4. Despite such regular assaults Asma tried to reconcile the matter and reported the
incident to her In-laws and parents. On the persuasion of parents and In-laws Mukhtar
agreed to stop assaulting her.
5. After few months of good behavior Mukhtar resumed forcing Asma for having a kid.
Later in 2016 Asma got pregnant and Mukhtar was very happy on hearing the news
but Aasma didn’t want to have the child as she was at the peak of her career. She
could not afford to apply for leave at this juncture and thereby forgo her promotion to
a higher post in the organization. Therefore she decided to go for an abortion.
6. After knowing about her decision, Mukhtar and Asma’s in-laws along with her
parents convinced her to leave the job and to have the child. But unfortunately due to
their negligence, Asma suffered a miscarriage and Mukhtar blamed her for the
miscarriage as he thought that Asma herself was liable and deliberately created the
situation that resulted in miscarriage. He continued taunting and abusing her regularly
and making her believe that it was her fault.
7. Soon after the incident Mukhtar decided to go for a second marriage in spite of
several objections raised by Asma. Nevertheless he got married to Parveen. After his
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 second marriage Mukhtar started neglecting Asma and shifted to another apartment
leaving Asma alone by herself. Initially he gave maintenance to her but after few
months he stopped paying maintenance. So in order to maintain herself she started
looking for a job but to no avail.
8. Later on 12th April, 2017 Mukhtar in the presence of witnesses Ahmed Khan and Na
Wazish Hussain (friends of Muktar) declared “I GIVE ‘TALAQ, TALAQ, TALAQ’,
hence I divorced my wife Asma from the said date and she is free to lead her life and
the same was conveyed to Asma by way of letter sent through post along with
Divorce deed duly signed by witnesses. The amount of Meher (dower) was tendered
to be paid as and when required with the amount of maintenance for the waiting
period to the extent of Rs. 50,000.
9. Asma was shocked in disbelief to receive the information and decided to exercise her
right as a woman and filed a petition invoking original jurisdiction of the Apex Court
under Article 32 of the Constitution of Pindiana for attacking her by way of such
declaration by Mukhtar. Meanwhile triple talaq was made illegal by passing an
ordinance The Muslim Women (Protection of Rights on Marriage) Second Ordinance,
2019.
10. It is contended by the petitioner that the instant talaq provided by Shariat Law should
be declared void-ab-initio as it causes gross injustice and terminates the matrimonial
ties between spouses.
11. It is further contended that such practice of talaq-e-biddat (triple talaq) violates the
fundamental rights enshrined under Article 14, 15 and 21 of the Constitution of
Pindiana where Muslim population is second highest. It is also stated in the contention
that countries like INDIA where laws are at par with Pindiana and such practice was
declared unconstitutional by high court of Chind. Later on Mukhtar filed a Special
Leave Petition to hold the ordinance unconstitutional. Subsequently the Hon’ble
Supreme Court combined both the matters & constituted a constitution bench of 7
Judges to resolve both the cases.
12. The petition is listed for the final hearing in the Constitutional Bench of the Hon’ble
Supreme Court of Pindiana.

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 ISSUES RAISED

I. WHETHER THE FUNDAMENTAL RIGHTS OF ASMA INFRINGED

THROUGH INSTANT TRIPLE TALAQ?
II. WHETHER THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON
MARRIAGE) SECOND ORDINANCE, 2019 IS VALID IN THE EYES OF
LAW?

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 SUMMARY OF ARGUMENTS

ISSUE I. WHETHER THE FUNDAMENTAL RIGHTS OF ASMA INFRINGED

THROUGH INSTANT TRIPLE TALAQ?

It is humbly submitted to this Hon’ble Court that under Article 32 of Constitution of Pindiana
any person whose fundamental rights are violated can approach the Supreme Court through a
Writ Petition. Asma had approached this court as the act of Triple Talaq pronounced by
Mukhtar violated her fundamental rights as enshrined under Articles 14, 15, 21 & 51A(e) of
The Constitution of Pindiana. Moreover Triple Talaq is not an essential religious practice that
can be protected under Articles 25, 26 R/W Article 29 of the Constitution of Pindiana.
Furthermore Mukhtar has not complied with the order of High Court of Chind which had
already declared Triple Talaq as unconstitutional.

ISSUE II. WHETHER THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON

MARRIAGE) SECOND ORDINANCE, 2019 IS VALID IN THE EYES OF LAW?

It is humbly submitted to this Hon’ble Court that Mukhtar has approached this Court by the
way of a Special Leave Petition under Article 136 of the Constitution of Pindiana. In the
present petition Mukhtar states that The Muslim Women (Protection of Rights on Marriage)
Second Ordinance, 2019 is unconstitutional and should be struck down as it violates the
fundamental rights of Muslim Husbands as enshrined under Articles 14, 15 and 21 of
Constitution of Pindiana.

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 ARGUMENTS ADVANCED

ISSUE I.WHETHER THE FUNDAMENTAL RIGHTS OF ASMA INFRINGED

THROUGH INSTANT TRIPLE TALAQ?

It is most humbly submitted that as per Section 2 of the Muslim Personal Law (Shariat)
Application Act, 19371, Muslim personal law will be applicable to the instant dispute. It is
further submitted that a valid marriage has been solemnized between Mukhtar and Asma,
Sunni and Shia respectively. On 12th April, 2017 Mukhtar pronounced Triple Talaq to Asma
in the presence of witnesses Mr. Ahmed Khan and Mr. Na Wazish Hussain through the
means of post along with the divorce deed. It is further submitted by the petitioner that the
instant Triple Talaq provided in Shariat Law is void-ab-initio due to the following
submissions: Triple Talaq is unconstitutional as it violative to fundamental rights under
Articles 14, 15 and 21 of the Constitution of Pindiana [A], Article 25 does not protect Triple
Talaq as an essential religious practice [B].

A.    TRIPLE TALAQ IS NOT EFFECT WITH ARTICLE 14, 15 & 21.

It is most humbly submitted that the practice of ‘talaq-e-biddat’ permits a male spouse an
unqualified right to divorce a wife, by way of Triple Talaq without the disclosure or absence
of any reason, even could be pronounced in the absence of the wife and even without her
knowledge. This action vests an arbitrary right in the husband, and as such, violated the
equality clause enshrined in Article 14 as it postulates equality before the law and equal
protection of the laws. Furthermore Article 15 puts a clear restraint on discrimination, on the
ground of sex.This way the rights of Muslim Women in matrimonial alliance, has resulted in
severe gender discrimination, which amounted to violation of their human rights under
Article 21 of the Constitution. Thus we seek intervention, for grave injustice practiced against
Muslim wives.
In the matter of Githa Hariharan v. Reserve Bank of India2, wherein this Court had the
occasion to interpret the provisions of the Hindu Minority and Guardianship Act, 1956. It was
submitted, that this Court in the above judgment emphasized the necessity to take measures
to bring domestic law in line with international conventions, so as to eradicate discrimination

1
MULLA, Principles of Mahomedan Law (Lexis Nexis-Butterworths 19th edn, 15th reprint, New Delhi, 2007),
Section 2 at p. 1.
2
(1999) 2 SCC 228
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of all forms, against women. It was submitted, that Articles 14, 15 and 21 constituted an
inseparable part of the basic structure of the Constitution and forms the bedrock of the
Constitution. Gender equality and dignity for women is an inalienable and inseparable part of
the basic structure of the Constitution.
Article 51A(e) of the Constitution it is the duty of the State to ensure that women were not
subjected to derogatory practices, which impacted their dignity. It was pointed out, that
gender equality and dignity of women, were non- negotiable. It was highlighted, that women
constituted half of the nation’s population, and inequality against women, should necessarily
entail an inference of wholesale gender discrimination.
It is contended that ‘talaq-e-biddat’ should not be confused with the profession, practice and
propagation of Islam and ‘talaq-e-biddat’ was not sacrosanctal to the profession of the
Muslim religion. It is therefore submitted, that this Court had an indefeasible right, to
intervene and render justice. Therefore, the petitioner is claiming not only gender equality,
but also the progression of their matrimonial life with dignity.

B. ARTICLE 25, 26 R/W ART. 29 DOES NOT PROTECT TRIPLE TALAQ AS AN

ESSENTIAL RELIGIOUS PRACTICE

It is submitted that Muslim law rests on the four-fold pillars of the fiqh, namely 3: the Quran
(kitab), the Sunna (hadith)4 , the Ijma5 and the Qiyas6 and every religion is bound by its
own believes and tenants. Article 25(1) provides that “all” persons were “equally” entitled to
the freedom of conscience, and the right to profess, practice and propagate religion.
Moreover in the present case in hand Triple Talaq is not an essential religious practice
because it is no where supported in Muslim law. In sura LXV, sura IV verses 35 and sura
II of the Holy Quran are instructive verses on the issues of divorce in the Quran, it states
that under extremely unavoidable situation talaq is permissible. Thus the practice of Triple
Talaq cannot be considered integral to the religious denomination in the question and is not a
part of their personal law. Triple Talaq is not recognized by many schools of Islam.
Accordingly it is acknowledged that ‘talaq-e- biddat’ has all along been treated irregular,
patriarchal and even sinful.

3
Supra note 1, Section 33 at p. 22.
4
Meaning the percepts, actions and sayings of the Prophet Mahomed, not written down during his
lifetime, but preserved by tradition and handed down by generations.
5
Meaning the concurrence of opinion of the companions of Mahomed and his disciples.
6
Being analogical deductions derived from comparisons of the first three sources.
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Articles 25, 26 and 29 of the Constitution, do not in any manner, impair the jurisdiction of this Court,
to set right the apparent breach of constitutional morality. That the freedoms contemplated under
Article 25, are subject to the overriding principles enshrined in Part III – Fundamental Rights, of the
Constitution. It is submitted that this position is affirmed through judgments rendered by the Supreme
Court of India in John Vallamattom v. Union of India7, Javed v. State of Haryana 8, and
Khursheed Ahmad Khan v. State of Uttar Pradesh9.
If the solution of a problem is given in the Quran then it is the final ruling of Sharia. It is
submitted that there is no Quranic basis to establish that three divorces on a single occasion
should amount to an irrevocable divorce; in fact the Prophet deplores divorce 10 and described
marriage11 as his Sunnat. It is beseeched that as per the Quran, there must be efforts towards
reconciliation between the divorce.12 This view has been upheld by the court in Shamim Ara
v. State of U.P. and Anr13 that (i) a reason for the divorce must be given and (ii) there must
be an attempt to reconcile. This case has further been upheld by the many High Courts 14
including the Kerala HC in Kunimohammed v. Ayishakutty.15 Therefore it is submitted that
the divorce must be treated as a nullity since there was no attempt to reconciliation.

ISSUE II. WHETHER THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON

MARRIAGE) SECOND ORDINANCE, 2019 IS VALID IN THE EYES OF LAW?

It is most humbly submitted that the Parliament of Pindiana had passed an ordinance The
Muslim Women (Protection of Rights on Marriage) Second Ordinance, 2019 which made
Triple Talaq illegal. In the present case Mukhtar has approached this court through SLP and

7
(2003) 6 SCC 611
8
(2003) 8 SCC 369
9
(2015) 8 SCC 439
10
“Divorce is most detestable in the sight of God; abstain from it”; “Divorce shakes the throne of
God” comes from the Hadith, “Al-talaqu indallah-i abghad al mubahat” found in many authentic
collections of tradition.
11
Tahir Mahmood, Muslim Law of India (LexisNexis-Butterworths, New Delhi, 3 rd edn., 2002) at p.
48.
12
Verse (4:34, 35) as cited by FAIZUR RAHMAN, “Instant Divorce is alien to Islam’s spirit”, Indian
Express, Kochi edn., June 17 th , 2008; An Enlightenment Commentary into the Light of the Holy
Quran (The Scientific and Religious Center, Iran, 2 nd edn., 1995)
13
(2002) 7 SCC 513
14
Riaz Fatma v. Mohammed Sharif I (2007) DMC 26; 135 (2006) DLT 205; Ummer Farooque v.
Naseema 2005 (4) KLT 565; Nur Ali (Md) v. Thambal Sana Bibi 2007 (1) GLT 508
15
2010 (2) KHC 63; The court held that “To us, it appears that this declaration of law rhymes well
with modern notions of marriage and the true Islamic concepts of marriage and divorce… That
declaration of law is consistent with modern notions of marriage and rhymes better with the human
right to life recognized under Art.21. It rhymes well with the concepts of equality under Art.14 of the
Constitution. Any contra interpretation appears to us to be not valid, just or right; but arbitrary,
unjust fanciful and oppressive...”
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challenged the validity of the ordinance stating it to be unconstitutional. It is submitted that
the ordinance passed is unconstitutional due to the following submissions: the ordinance is in
violation to Article 123 of the Constitution of Pindiana[A] and the ordinance violates the
fundamental rights as enshrined in the constitution[B]

(a) THE ORDINACE IS IN

VIOLATION TO ARTICLE 123 OF THE CONSTITUTION OF PINDIANA
It is submitted that Article 123 enables the promulgation of ordinances only in instances
requiring “immediate action”. The absence of emergent reasons negates any invocation of the
provision.16 Triple Talaq is a practice that dates back to about 1400 years. It is legally
recognized and enforced till the passing of the present Ordinance. Furthermore there was no
dire need of the government to pass an ordinance criminalizing Triple Talaq as an ‘immidiate
action’. Hence the promulgation of impugned Ordinance is against the spirit of Article 123
and a fraud on the Constitution.

(b) THE ORDINANCE

VIOLATES THE FUNDAMENTAL RIGHTS AS ENSHRINED IN THE
CONSTITUTION
a)The ordinance violates Article 14 and 15 of the Constitution of Pindiana.
It is submitted that the Ordinance is unconstitutional under Article 14 as it is
manifestly arbitrary. Justice Nariman described “manifestly arbitrary” he observed
that “manifest arbitrariness, therefore, must be something done by the legislature
capriciously, irrationally and/or without adequate determining principle. Also, when
something is done which is excessive and disproportionate, such legislation is
manifestly arbitrary”17 in the present case the Ordinance criminalizes Triple Talaq
where the husband is punished. Thus the intent behind the Ordinance is not abolition
of Triple Talaq but punishment of Muslim husbands. If the motive was to protect a
Muslim wife in an unhappy marriage, no reasonable person can believe that the means
to ensure it is by putting an errant husband in jail for merely saying “Talaq Talaq
Talaq”. For these reasons the ordinance is capricious, irrational, without adequate
determining principle, excessive and disproportionate and hence, manifestly arbitrary.
They deserve to be struck down under Article 14.

16
Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1
17
Shayara Bano v. Union of India & Others. 2017 (9) SCC 1
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 It is submitted that Article 15 forbids class legislation predicated solely on the basis of
a person’s religion. Therefore Ordinance, being confined to Muslim husbands, has no
constitutional justification under Article 15. If the act has no recognition in law, only
Muslims cannot be penalized for committing the act.
b)The ordinance violates Article 15 of the Constitution of Pindiana.
It is submitted that when the law is not just, fair or reasonable such law is no law
under the Constitution. In the case of K.S. Puttaswamy v. Union of India 18, it was held
that “….Article 14, as a guarantee against arbitrariness, infuses the entirety of Article
21. The interrelationship between the guarantee against arbitrariness and the
protection of life and personal liberty operates in a multi-faceted plane. First, it
ensures that the procedure for deprivation must be fair, just and reasonable. Second,
Article 14 impacts both the procedure and the expression “law”. A law within the
meaning of Article 21 must be consistent with the norms of fairness which originate
in Article 14. As a matter of principle, once Article 14 has a connection with Article
21, norms of fairness and reasonableness would apply not only to the procedure but to
the law as well…”
In the present case the Ordinance is manifestly arbitrary and discriminatory, proved
hereinbefore. Abolition of Triple Talaq was not a surviving cause for legislative action.
Protection of wives cannot be achieved by incarceration of husbands. A truly welfare-
oriented legislation would promote amicable resolution of matrimonial disputes, regardless of
community. A welfare-oriented legislation would not purport to criminalise marital discord
and moreover, particularise the criminalization only to one community. With respect, it is
submitted that any such legislation ought to shock the judicial conscience. The ordinance is
such an endeavour and ought to be struck down for violating Article 21.

18
Leading opinion of DY Chandrachud, J., (2017) 10 SCC 1, para 294
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 PRAYER

Wherefore in the light of facts presented, issues raised, arguments advanced and
authorities cited, the Counsels on behalf of the Appellant humbly pray before this
Hon’ble Court that it may be pleased to adjudge and declare that:

1. The Fundamental Rights of Asma are not violated and hence the petition is
liable to be dismissed

2. The Muslim Women (Protection Of Rights On Marriage) Second

Ordinance, 2019 is constitutional

And/or pass any other order that the court may deem fit in the light of equity, justice
and good conscience and for this Act of kindness of Your Lordships the Respondents
shall as duty bound ever pray.

Sd/- _______________________

Counsels for the Appellant.

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