15/10/2017

Petitioner Side Moot Court Memorial Format | Ayush Jaiswal |




4th INTRA MOOT COURT COMPETITION





BEFORE THE

  HON’BLE SUPREME COURT OF INDIA

Writ Jurisdiction

Under Article 32 of Constitution of India



IN THE MATTER OF



               Sana Khan……………………………….…………Petitioner

Versus

                              Union of India……………………………………….Respondents





UPON SUBMISSION TO THE HONOURABLE CHIEF JUSTICE AND HIS
COMPANION JUSTICES OF HONOURABLE SUPREME COURT OF INDIA




TABLE OF CONTENTS

·         ABBREVIATION…………………………………………………………………..….3
·         INDEX OF AUTHORITIES………………………………………………………..…4
·         STATEMENT OF JURISDICTION…………………………………………..……...5
·         STATEMENT OF ISSUES……………………………………………………...……..6
·         SYNOPSIS OF FACTS…………………………………………………………….....7-8
·         ARGUMENTS ADVANCED………………………………………………..…………9
·         The PIL filed by petitioner under Art 32 Constitution of India is maintainable before Supreme Court of India…………………………………………………………………..9
·         Art 32 of Constitution- Remedies for enforcement of rights conferred by this part……..9
·         1.1 Public Interest Litigation- Who can Apply……………………………………….…..9
·         1.2 How the Public Interest Involved……………………………………………………10
·         Art 13 of Constitution- Laws inconsistent with or in derogating of the fundamental rights……………………………………………………………………………………..11
·         1.3 Personal laws to be ‘laws in force’ under Article 13 of the Constitution of India…..12
·         2. Triple-Talaq (Talaq-e-biddat) is not in conformity with Quran……………………....13
·         2.1 Triple Talaq not a part of Shariat or Holy Quran…………………………………….14
·         2.1.1 Evolution of Concept of Triple-Talaq……………………………………………...15
·         2.2 Triple Talaq (Talaq-ul-biddat)- Disapproved mode of Talaq………………………..16
·         Triple Talaq(talaq-e-biddat) is not constitutionally valid………………………………..16
·         3.1 Constitutional Validity of Triple Talaq………………………………………………17
·         Art 14 Right to Equality………………………………………………………………….17
·         Art 15 Prohibition against discrimination………………………………………………..17
·         Art 21 Right to life and personal liberty………………………………………………....17
·         Art 25 Right to Religious Freedom………………………………………………......17-18
·         Prayer…………………………………………………………………………………….19






ABBREVIATIONS USED


Sec                                                      :                                 Section
Art.                                                     :                                 Article
Sc                                                        :                                 Supreme Court
Anr.                                                     :                                 Another
&                                                          :                                 And
v. /vs.                                                    :                                 Versus
Hon’ble                                                :                                Honorable
SCC                                                      :                                Supreme Court Cases
Ors.                                                       :                                 Others






INDEX OF AUTHORITIES

STATUTES:
·         The constitution of India, 1950
·         Shariat Act, 1937 Akil Ahmad.

Cases Referred:-

1-      S.P Gupta & Ors. V. President of India & ors:        AIR 1982 SC 149
2-      Shamim Ara V. State of U.P & Anr. :                      AIR 2002 SC 3551
3-      Sant Ram & Ors. V. Labh Singh & Ors. :                AIR 1965 SC 314
4-      Builders Supply Corporation V. Union of India :     AIR 1956 Cal 26
5-      Rahmatullah V. State of U.P & Ors :                       1994 (12) Lucknow CD.
6-      Yusuf V. Sowramma                                                AIR 1971 Ker 261  
7-      Shayara Bano V. Union of India & Ors. :               MANU/SCOR/33018/2016     


Books Referred:

·         Dr. J.N Pandey, The CONSTITUTIONAL LAW OF INDIA, CENTRAL LAW AGENCY    
·         P.M Bakshi, The Constitution of India, 12th Edition, Universal Law Publishing Company Pvt. Ltd, 2013
·         Shariat Act, 1937 Akil Ahmad.

Websites referred:
·         www.manupatra.com
·         www.lexisnexis.com
·         www.Indiankanoon.com

                                                                                               


STATEMANT OF JURISDICTION


The petitioner Sana Khan has filed PIL under Article 32 of Constitution of India challenging the constitutional validity of instant triple talaq.

The present memorandum sets forth the facts, contentions and arguments on the behalf of petitioner.



                                                             
STATEMENT OF ISSUES


1. WHETHER THE WRIT PETITION FILED BY THE PETITIONER UNDER ART. 32 ARE MAINTAINABLE OR NOT




Ø  WHETHER MUSLIM PERSONAL LAW FALLS UNDER THE PURVIEW OF TERM "LAW IN FORCE" UNDER ART.13 OF CONSTITUTION OR NOT?


Ø   WHETHER TRIPLE TALAQ IS PART OF SHARIAT OR NOT?


Ø  WHETHER INSTANT TRIPLE TALAQ IS CONSTITUTIONALLY VALID OR NOT?






SYNOPSIS OF FACTS

1-Sana Khan, belonging to the Muslim community, married to Salman Khan according to the rituals of the Muslim community on 20th September, 2010. The matrimonial relationship between Sana and Salman led to the birth of two children.


2-In March 2013, Salman saw his wife with some other man in a restaurant, when about the incident; Sana denied being with any person in that restaurant but later she admitted that person to be his friend, since then there were regular quarrels between them.



3-On 29th January, 2014 Sana left the house of her husband and started living in parent’s house, children were in the custody of her husband.



4-Salman visited Sana’s place many times for giving her maintenance money and asking her to come back and start living with him but Sana refused to do so.



5-On 20 October, 2015 Salman approached the Court of the Principal Judge, Family Court at Lucknow, with a prayer for restitution of conjugal rights.



6-Sana khan asserted that Salman khan, his husband had continuously made dowry demand for cash and car and also beaten her, due to which she left her husband house and start living with her father.



7-In view of the above averments of Sana, Salman felt that his wife was not ready for reconciliation, and therefore, he withdrew the suit (for restitution of conjugal rights), preferred by him at Lucknow, and divorced Sana on 20 January 2016.



8-Sana has approached Supreme Court of India for assailing the divorce pronounced by her husband Salman Khan , wherein he affirmed “…in the presence of witnesses saying that I gave ‘talak, talak, talak’, hence like this I divorce from you from my wife. From this date there is no relation of husband and wife. From today I am ‘haraam’, and I have become ‘naamharram’. In future you are free for using your life”, the aforesaid divorce was pronounced the two witnesses.



8-Sana has sought a declaration, that the ‘talaq-e-biddat’ pronounced by her husband be declared as void abinitio. She also contended, that such a divorce which abruptly, unilaterally and irrevocably terminates the ties of matrimony, purportedly under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 (hereinafter referred to as, the Shariat Act), be declared unconstitutional.



9-It was also submitted by her, that the ‘talaq-e-biddat’(triple talaq), pronounced by her husband is not valid, as it is not a part of ‘Shariat’ (Muslim ‘personal law’) also, that divorce of the instant nature, cannot be treated as “rule of decision” under the Shariat Act.






Argument Advanced-

1.      The PIL filed by petitioner under Art 32 of Indian Constitution is maintainable before Supreme Court of India
Art 32 of Constitution- 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 right conferred by this part is guaranteed.
2)      The Supreme Court shall have power to issue directions or orders or writs, including the writs in 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.
3)      Without prejudice to the powered conferred on the Supreme Court by clause (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
4)       The right guaranteed by this article shall not be suspended except as otherwise provided by the constitution.

It is humbly submitted that the petitioner Sana Khan had filed PIL under Art 32 of Constitution of India, challenging the constitutional validity of Triple-Talaq (Instant Divorce). She had been pronounced Triple-Talaq by the Respondent Salman khan in the presence of 2 witnesses. Therefore, the petitioner Sana has sought a declaration, that the ‘talaq-e-biddat’ pronounced by her husband be declared void abinitio.

It is humbly submitted that the PIL filed by petitioner shall be held maintainable before the Hon’ble Supreme Court of India.

1.1-          Public Interest Litigation- Who Can Apply-
The courts permits public interest litigation or Social Interest litigation at the instance of Public Spirited Citizens for enforcement of Constitutional and other legal rights of any person or group of persons under Art 32 of Constitution.


In S.P GUPTA & OTHERS V. PRESIDENT OF INDIA & ORS[1] S.C held that any member of public having sufficient interest can approach the court for enforcing the constitutional or other legal right of other person or group of person.

Therefore, the PIL filed by petitioner Sana khan shall be held maintainable before the Hon’ble Supreme Court of India.

1.2   How the Public Interest Involved-
In the present case, the petitioner has challenged the constitutional validity of Triple-Talaq (Talaq-e-biddat). As it clearly violates the Fundamental Rights of all Muslim women in India which is guaranteed under Art 14, 15, 21 of Constitution of India. In India, Triple Talaq is the strangulation or violation of Substantial Justice of all Muslim women in the name of non-existent technical considerations. Instant Triple Talaq is the unrestrained power of husband, which disturbs and conflicts with the constitutional values of equality and dignity. Unequal power equation affects the psyche of women and they remain in constant fear of instant triple-talaq. “This form of Talaq is manifestly arbitrary in the sense that the marital tie can be triple talaq. “This form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of Art 14 of Constitution.

In  Shamim Ara V. State of U.P. & Anr2,   [2]the Supreme Court approved of the views of Justices Krishna Iyer and Baharal Islam and declared triple talaq as unconstitutional.

Indian constitution empowers the state to adopt measures to uplift the status of women. India has ratified several international conventions and instrument which commits to secure a dignity of a woman. One such convention is the convention of elimination of all forms of discrimination against women (CEDAW) which India is signatory. Triple Talaq is violative of convention on elimination of all forms of discrimination against women (CEDAW). Under CEDAW, India has the obligation to enact legislation to protect Muslim women from the unilateral form of divorce and provide them equal status as men. Under Art 51 India is obliged under this convention to make special provisions in order to eliminate the discrimination of women. Under article 253 of the Indian Constitution, the parliament has the power to any law in order to give effect to international conventions and treaties.
A survey by Bhartiya Muslim Mahila Andolan (BMMA), of around 5000 Muslim women across India, found that over 90% wanted an end to triple talaq and halala. Of the 525 divorced women surveyed in whom 78% had been given triple talaq; 76% of these women had to consummate a second marriage so that they could go back to their former husbands. No lady can be compelled to marry another man and consummate that marriage in case she wants to remarry her former husband after talaq. This condition is humiliating and against the dignity of women as protected under Article 21.

Though the Muslim personal law (triple-talaq) is governed and administered by Kzazis, Maulvis but it is the obligation of the State to ensure that the Fundamental Rights of Muslim women shall not be violated by them in the name of religion. Therefore, the PIL filed by petitioner shall be held maintainable before the Hon’ble Supreme Court. Laws governing the nation must be equal for all. This will further strengthen the rule of law, which is the basic structure of the Constitution. The government and citizens have a duty to uphold it. Democracy matures when equality, fraternity, liberty are celebrated as constitutional festivities.

Art 13 of Constitution- Laws inconsistent with or in derogation of the Fundamental Rights

 1)- All laws in force in the territory of India immediately before the commencement of this constitution, in so far as they are inconsistent with the provisions of this part, shall to the extent of such inconsistency, be void.
2)-The state shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
3)-In this article, unless the context otherwise requires law includes any ordinance, order, by law, rule, regulation, notification, custom or usages having in the territory of India the force of law; laws in force includes laws passed or made by legislature or other competent authority in the territory of India before the commencement of this constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
4) - Nothing in this article shall apply to any amendment of this constitution made under article 368 Right of Equality.

1.3. Personal Laws to be ‘laws in force’ under Article 13 of the constitution of India.
Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, provides
notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila,zihar, lian, khula and mubaraat, maintenance,dower, guardianship, gifts, trusts and trust properties, wakfs(other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)’’

Thus, the 1937 Act seeks to recognize and enforce talaq-e-biddat through Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, as only word talaq is included in it. So, all forms of talaq existing in Muslim societies were sought to be enforced by section 2 of the 1937 Act. Therefore, the Muslim Personal Law (Shariat) Application Act, 1937, can be bracketed as ‘laws in force’ within the meaning of Article 13(3)(b) and therefore, judicial review of this Act of 1937, may be carried out by higher judiciary, if it is inconsistent with fundamental rights.
It is humbly submitted that all personal laws (un-codified laws) are to be declared as ‘laws in force’ under Article 13. This is the only panacea against all forms of discrimination existing in personal laws of all religious communities. Personal laws have to pass the test of constitutionality.

·         The Supreme Court in Sant Ram & Ors V. Labh Singh & Ors[3] stated that custom or usage having in the territory of India the force of law must be held to be contemplated by the expression ‘all laws in force’..to hold otherwise would restrict the operation of the first clause in such a way that none of the things mentioned in the first definition would be affected by the fundamental rights.’’

·         In Builders Supply Corporation V. Union of India[4] Sc has now clarified that the expression “laws in force’’ used in Article 13 includes not statutory law but also custom, usage and even common law in England.

Therefore, the personal law comes within the ambit of Art 13 of constitution and is capable of judicial review by Hon’ble Supreme Court. Thus, triple-talaq which makes a blatant violation of the fundamental rights of Muslim Women shall be declared as unconstitutional and void.

THEREFORE, IT IS HUMBLY SUBMITTED THAT THE PIL FILED BY PETITIONER SHALL BE HELD MAINTANABLE BEFORE THE SUPREME COURT OF INDIA.


2.      Triple-talaq (talaq-e-biddat) is not in conformity with Quran

It is humbly submitted that the petitioner Sana Khan, belonging to the Muslim community, married to Salman khan according to the rituals of the Muslim Community on 20th September, 2010.
In March 2013, Salman saw his wife with some other man in a restaurant, when about the incident. Sana denied being with any person in that restaurant but later she admitted that person to be his friend, since then there were regular quarrels between them.
On 29th January, 2014 Sana left the house of her husband and started living in parent’s house, children were in the custody of her husband.
On 20th October, 2015 Salman approached the court of the Principal Judge, Family court at Lucknow, with a prayer for restitution of conjugal rights.
Sana Khan asserted that Salman Khan, his husband had continuously made dowry demand for cash and car and also beaten her, due to which she left her husband house and start living with her father.
In view of the above averments of Sana, Salman felt that his wife was not ready for reconciliation, and therefore, he withdrew the suit (for restitution of Conjugal Rights),
Preferred by him and gave her Instant triple talaq in the presence of 2 witnesses on 20 January 2016.
Therefore, the petitioner Sana khan had filed the PIL under Art 32 of Constitution of India challenging the constitutional validity of Triple-Talaq (Instant Divorce).

2.1 Triple Talaq not a part of Shariat or Holy Quran:
What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well’’
Muslim law rests on the four-fold pillars of the fiqh, namely: the Quran (Kitab), the Sunnah ( Hadiths), the Ijma and Qiyas.  A ‘principle’ to become ‘law’ must find a place in the above mentioned sources. If the solution of a problem given in the Quran then it is the final ruling of Shariah. If there is no clear exposition in the Quran, we look at the traditions of the prophet documented in the form of hadis by his companions. If the problem has no solution in either of the two then only is resort taken to Ijma. There is no Quranic  basis to establish that three divorces on a single occasion will amount to an irrevocable divorce; in fact the Prophet (PBUH) despised divorce and described marriage as his Sunnat. The Quran lays down only two kinds of divorces i.e Talaq-Ahsan and Talaq-Hasan the same being in conformity with the dictates of Prophet (PBUH). The above two forms are considered to be the most proper form of pronouncing the divorce. The third form i.e Talaq-ul-Biddat, is considered to be the most sinful, innovated form of divorces as it is against the letter and spirit of Quran and was disallowed by the Prophet (PBUH) himself.

According to the Quran, a person is not supposed to divorce his wife when she is menstruating. When a Muslim divorces his wife, he has to divorce them for the period of their iddad and wait for three courses (menstruation). The prescribed time period of iddah is about three months and in case of pregnant women, the iddah period is till delivery. During this period, the husband can take them back if they wish to (reconciliation). Divorce given for two times is revocable but is not so when made for a third time. As stated by prophet (PBUH) and narrated by Aisha “Once a Muslim woman has been divorced by her husband thrice, she cannot remarry him unless and until she is married to another man ( and  such marriage consummated compulsorily ) and divorces her so as to free her. It is only after this, she can marry her former husband.”


·         In Rahmattullah V. State of U.P & Ors[5], H.N Tilhari observed that talat-ul-biddat i.e. giving an irrevocable manner without allowing the period of waiting for reconciliation or without allowing the will of Allah to bring about reunion, by removing differences and helping the two in solving their differences, runs counter to the mandate of holy Quran and has been regarded as by all under Islam-sunnat, to be sinful. 


2.1.1 Evolution of Concept of Triple-Talaq 

Triple-talaq is recognized but disapproved form of divorce. It commands neither the sanctions of holy Quran nor the approval of the holy prophet. It was also not in practice during the life time of first Caliph Abu Bakar. Later, Hazrat Umar permitted it on account of certain peculiar situation. When Arabs conquered Syria, Egypt, Persia etc. They found that the women there were much beautiful as compared to Arabian women and hence were attracted to marry them. But the Egyptian and Syrian women insisted that in order to marry them, they should divorce to their existing wives instantaneously by pronouncing three divorce in one sitting. The condition was readily acceptable to the Arabs because they knew that in Islam divorce is permissible only twice in 2 separate period of Tuhr and its repetition at one sitting is unislamic, void and shall not be effective. In this way, they could not only marry the beautiful women but can also retain their existing wives. Thus, in order to prevent the misuse of the religion by unscrupulous husbands Caliph Umar decreed that even repetition of the word "talaq-talaq-talaq" at one sitting would dissolve the marriage irrevocably. 

During Caliph Umar time period, people started reverting back to the wife after swearing to their intention of giving a single divorce. Thus, Caliph Umar decreed that triple talaq would become effective, refusing to allow the couple to revert to each other in order to stop people from wanton repetitions of divorce and from treating the matter of divorce in a light and non-serious way. It must have suited the needs of his own time, but practice in modern times has resulted in a great deal of harm. 

It was however a more administrative measure of Caliph Umar to meet an emergency situation and not to make it a law permanently. But unfortunately the Hanafi Jurist later on at the strength of this instant administrative order of Caliph declared this form of divorce valid and also paves religious sanction to it. At present much inconvenience is being felt by the Muslim community, especially women, so far as this law of triple divorce is applied in India. 

In Quran there is no trace that the 'three divorce' pronounced at one occasion would be treated as three divorce or irrevocable footing. The holy Quran only provides the procedure for pronouncing talaq and it is emphasized that every possible attempt must first be made for reconciliation between the married couples before the completion of the prescribed period. Thus, Triple talaq goes against the very spirit of procedure of divorce as laid down in holy Quran as well as Hadiths as Triple-Talaq is a final divorce in which no opportunity is given to spouses for reconciliation. The triple talaq was an exception rather than a rule under special circumstances. Thus, in no manner triple talaq is a part of Quranic Shariat. 


·          In Yusuf V. Sowramma[6], justice Krishna Iyer observed that it is a popular fallacy that in a Muslim male enjoys, under Quranic law, unbridled authority to liquidate the marriage. He further observed that Muslim law as applied in India has taken a course contrary to the spirit of what the holy Prophet or the Holy Quran lay down and the same misconception vitiates the law dealing with wife's right to divorce. 


2.2 Triple Talaq(Talaq-ul-biddat)- Disapproved mode of Talaq- 

"Talaq-Talaq-Talaq". When pronounced by the husband, the marriage automatically ends at that particular moment. When a husband pronounced "I divorce you" thrice to his wife, both of them are free from each other. Talaq-e-biddat means sinful divorce where husband pronounces talaq thrice for the completion of the divorce process. The pronouncement of talaq thrice is known as Triple Talaq 

Being a sinful of a talaqHanafis(Sunnis) allow triple talaq system and makes it a valid one. Shias and Malikies do not recognize this form of divorce. Once talaq is pronounced thrice, divorce will take place and wife will become totally separated from husband in terms of responsibilities and relationship. She becomes prohibited (Haram) from him. The process during the iddat period and also without stating any further reasons behind it. 

Triple, instantaneous, verbal talaq: an institution under Islamic religion where the husband reserves to himself the exclusive right to grant irrevocable talaq to his wife without the necessity of a single reason. It is the irregular mode of Talaq introduced by Omeyyads in order to escape the strictness of law. Such an institution is repugnant to the spirit of Islam and more importantly, to the very spirit of humanity. The fact that a Muslim man can render his wife a stranger by one stroke of his tongue as opposed to the deliberately lengthy procedure of 'Khula' a Muslim woman has to undergo in order to liberate herself from a cruel husband has been lamented time and over. 

Therefore, It is humbly submitted that triple-talaq is neither the part of Holy Quran nor Hadiths, it is only contained in Ijma and Qiyas which contains the opinions of Muslim jurist which has no universal application and the Shariat is not a codified law and is subject to judicial scrutiny as regards their constitutionality.  

3. Triple Talaq(talaq-e-biddat) is not constitutionally Valid- 

There are 22 Muslim countries, including our neighbours like Pakistan, Bangladesh and Sri Lanka, have either banned It, but the biggest tyranny is that We are a nation which proudly profess to be the world's largest democracy, guaranteeing the protection of equal rights to all our citizens while boldly holding the flag allot of being a secular nation, still debating on it. In this modern era where right to life with dignity is sine qua non, divorce through Skype, WhatsApp and text messages is beyond and comprehension. Thus, striking down instant triple talaq is in consonance to the modern constitutional values. 


3.1 Constitutional Validity of Triple Talaq-


·         Article 14 Right to Equality-  “Equality is one of the most significant corner-stones of our democracy.” It is therefore highly ironic that the most abominable aspect of triple talaq is its prima facie inequality. The explicit power of irrevocable talaq given to a Muslim husband is solely based on the fact that he is a man and absolutely no another rational basis. A Muslim husband can give divorce to his wife by simply saying the words “Talaq,talaq,talaq” where he is not responsible for providing any reasons for such divorce. Whereas a Muslim wife has to file a petition in the competent court to get a divorce and also liable to provide reasonable grounds for the divorce which clearly violates Art 14 of the Constitution. The right of the Muslim Women at the hands of the unscrupulous misinterpretations of the Quranic Shariah, particularly with the respect to their right to divorce, has been constantly brought out.


·         Article 15 Prohibition Against Discrimination-  Art15(1) specifically prohibits gender discrimination and thus, no ground referable to any custom, usages or personal laws, contrary to equality principle enshrined in the constitution should be enforced, more particularly, in relation to secular matters. A muslim man can marry four women, but a Muslim woman can have only one husband at a time, this element of personal law directly goes against the concept of a non-discriminatory clause in the constitution.


·         Article 21 Right to life and Personal Liberty-  The institution of triple talaq is grossly violative of Right to Life as provided under Article 21 of the constitution. Once a woman divorced who is without any source of income has to completely stay dependent on her parents for her survival. This violates Right to live with dignity, granted under article 21 of the constitution. This right has constantly evolved and has now come to be liberally interpreted as something more than mere survival and animal existence. It includes finer graces of human dignity, culture and civilization. One must live with dignity, free from physical and mental harassment and exploitation.


·         Aricle 25 Right to Religious Freedom-  Triple Talaq clearly violates Article 25 of the Constitution as it clearly provides that religious freedom is subject to the fundamental rights. A sharp distinction must be drawn between religious faith and belief and religious practices run counter to public order, morality, health or policy of social welfare upon which the state has embarked, then the religious practices must give way before the good of the people of the state as whole.

·         Shayara Bano v. Union of India & ors[7]Shayara, a Muslim woman was married to a property dealer of Allahabad Rizwan. Husband used to give a lot of threats to give her talaq every time, he has dissatisfied with her work or behaviour. When she became very seriously ill, Rizwan sent her to her father’s residence in uttrakhand. After some time he sent a Talaq-Nama to Shayara from Allahabad.


In May, 2016 she approached to the Hon’ble Supreme Court to abolish triple talaq. Shayara Bano alleged that she only wished to secure life with dignity, unmarred by discrimination on the basis of gender or religion, Two Judges bench of the Supreme Court held that there is a gender discrimination against Muslim woman by practicing arbitrary divorce and triple talaq.

In August, 2017 the hon’ble Supreme Court held that the practices of triple talaq under Muslim personal laws are illegal and unconstitutional.

Therefore, the need of the time is that codified law of Muslim marriage and divorce should be enacted keeping pace with the aspirations of the constitution, so that the self-appointive leaders could be removed and a specified family law could be followed without any discrimination. There is a need of reformation in the Muslim personal law which violates the Muslim women Fundamental Rights. Triple Talaq should be declared discriminatory, unconstitutional and contrary to the prevalent Islamic Law.

IT IS HUMBLY SUBMITTED THAT TRIPLE TALAQ IS NOT CONSTITUTIONALLY VALID AND SHALL BE DECLARED AS UNCONSTITUTIONAL AND VOID.











PRAYER

Wherefore, in the light of the fact used, issue raised, arguments advanced and the authorities cited, it is most humbly and respectfully prayed that this Hon’ble court may be pleased to adjudge and declare that:

a.     The PIL filed by Sana Khan under Article 32 of Constitution of India is maintainable in the Hon’ble Court.

b.     To declare the Instant triple talak pronounced by respondent be void ab initio.

c.      This Hon’ble court may be pleased declare the Instant triple talaq as unconstitutional.


According to what is just and good, it is an appeal of the counsel to Hon’ble Court to adjudge the above prayers, and grant any other relief which the Hon’ble Court may be pleased to grant and as deemed fit in the interest of justice, equity and Good Conscience.

All of which respectfully submitted

For the act of kindness, the appellants shall be duty bound forever.

All of which is most humbly prayed
(Counsel for the petitioner)





[1] S.P GUPTA & OTHERS V. PRESIDENT OF INDIA & ORS  AIR 1982 SC 149
[2] Shamim Ara V. State of U.P. & Anr2,   AIR 2002 SC 3551
[3] Sant Ram & Ors V. Labh Singh & Ors. AIR 1965 Cal 26
[4] In Builders Supply Corporation V. Union of India, AIR 1956 Cal 26
[5] In Rahmattullah V. State of U.P & Ors, 1994(12) Lucknow Civil Decision, p. 463
[6] In Yusuf V. Sowramma AIR 1971 ker 261
[7] Shayara Bano v. Union of India & ors, MANU/SCOR/33018/2017










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