15/10/2017

Respondent 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
S.N.
                                  Title
Page No.
1.
Abbreviation used
3
2.
Index of Authorities
4
3.
Statement of Jurisdiction
5
4.
Statement of Issue
6
5.
Synopsis of Facts
7-8
6.
Argument Advanced
9-11
7.
Whether the instant triple talaq is valid or not
12-13
8.
Why triple talaq is not constitutional
14
9.
Prayer
15






ABBREVIATION USED


Sec
Section
Art
Article
Anr.
Another
SC
Supreme Court
&
And
V./Vs.
Versus
Hon’ble
Honourable
SCC
Supreme Court Cases





INDEX OF AUTHORITIES

Statutes-
·         The Constitution of India, 1950.
·         The Shariat Act, 1937


Cases Referred-
·         State of Bombay V. Narasu Appa Mali AIR 1957
·         Rashid Ahmad V. Anisa Khatun
·         Maharshi Avdhesh V. Union of India


Books Referred-
·         P.M Bakshi, The Constitution of India, 12th Edition, Universal Law Publishing Company Pvt. Ltd, 2013
·         The Shariat Act, 1937. Akil Ahmad


Websites Referred-
·         www.manupatra.com
·         www.Indiankanoon.com
·         www.judis.nic.in
·         www.lexisnexis.com





STATEMENT 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 Respondent.



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.      Whether the PIL filed by Petitioner under Article 32 of the Constitution Of India is maintainable or not?
Article 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.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (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 for by this Constitution.

It is most humbly submitted that the PIL filed by petitioner Sana Khan under Art.32 of the Constitution of India is not maintainable as the personal laws cannot be challenged in the court for being violative of fundamental rights.

The word ‘personal law’ in Black’s Law Dictionary (10th edition, 2014), as follows:

“The law that governs a person’s family matters, regardless of where the person goes. In common law systems, personal law refers to the law of the person’s domicile. In civil-law systems, it refers to the law of the individual’s nationality (and so is sometimes called lex patriae).”

Reference was also made to the definition of the term ‘personal law’ in
‘Conflict of Laws 188’ (7th edition, 1974) by R.H. Graveson, who defined the
Term as under:

“The idea of the personal law is based on the conception of man as a social being, so that those transactions of his daily life which affect him most closely in a personal sense, such as marriage, divorce, legitimacy, many kinds of capacity, and succession, may be governed universally by that system of law deemed most suitable and adequate for the purpose …”

Based on the cumulative definition of the term ‘personal law’, it is submitted, that the evolution of the matters of faith relating to religious practices, must necessarily be judged in the context of practices adopted by the concerned community, with reference to each individual aspect of ‘personal law’.
It is submitted that ‘personal laws’ are per se subservient to legislation, and as such, ‘personal laws’ were liable to be considered as mandatory, with reference to numerous aspects of an individual’s life, only in the absence of legislation. Even though it was acknowledged, that legislation on an issue would override ‘personal law’ on the matter, it was pointed out, that in the absence of legislation ‘personal laws’ in the Indian context, could not be
Assailed on the basis of their being in conflict with any of the provisions contained in Part III of the Constitution – the Fundamental Rights.

It is submitted, that in the absence of statutory law, religious practices and faith, constituted the individual’s (belonging to a community) right to profess the same.

In order to substantiate the contention, that a challenge to ‘personal law’ could not be raised on the anvil of Articles 14, 15 and 21 of the Constitution, placed reliance to the case
State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84, In this case it was held that for
The proposition that personal laws are beyond the pale of the fundamental rights Chapter of the Constitution and hence cannot be struck down by this Court. According to the Hon’ble Court, in this view of the matter, this Court should fold its hands and send Muslim women and other women’s organisations back to the legislature, as according to them, if Triple Talaq is to be removed as a measure of social welfare and reform under Article 25(2), the legislature alone should do so.


Hence it is most humbly submitted that the PIL filed under Article 32 of the Constitution Of India is not maintainable















2.      Whether Muslim Personal Law Falls under the Purview of term “Law in Force” under Article 13 of the Constitution of India or not?

It is humbly submitted that the validity of ‘personal law’ cannot be tested at all, with reference to the fundamental rights vested in individuals under Part III of the Constitution, for the reason, that ‘personal law’ cannot be treated as law within the meaning of Article 13 of the Constitution.
In State of Bombay v. Narasu Appa Mali, hon’ble Supreme Court held that Personal Law cannot be brought under the critical scrutiny of Article 13.

Also as per Article 13(3)(b) 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.
It is submitted that personal laws does not fall within the ambit of Art. 13 as it is not legislated by any competent authority or the legislature.

It is submitted, that there is a clear distinction between ‘law’ and ‘law in force’ with reference to Article 13 of the Constitution. It was asserted, that read along with Article 372 – which mandates, that all laws in force in the territory of India, immediately before the commencement of the Constitution, would continue to remain in force, until altered, repealed or amended by a competent legislature or other competent authority.
It is submitted, that to affect a change in ‘personal law’, it was imperative to embark on legislation, as provided for through entry 5 of the Concurrent List in the Seventh Schedule, which provides – “marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law.” It was therefore urged, that ‘personal laws’ per se were not subject to challenge, under any of the provisions contained in Part III of the Constitution.















3.      Whether the instant Triple Talaq is valid or not?

It is submitted, that for the Hanafi school of Sunni Muslims ‘talaq-e-biddat’ – triple talaq was a part and parcel of their ‘personal law’, namely, a part and parcel of their faith, which they had followed generation after generation, over centuries. That being the position, it was submitted, that ‘talaq-e-biddat’ should be treated as the constitutionally protected fundamental right of Muslims, which could not be interfered with on the touchstone of being violative of the fundamental rights, enshrined in the Constitution – or for that matter, constitutional morality propounded at the behest of the petitioners.

Also in the case of Rashid Ahmad v. Anisa Khatun, the Privy Council, upheld as valid, ‘talaq-e-biddat’ – triple talaq, pronounced by the husband, in the absence and without the
knowledge of the wife.

It is submitted that  the articles of faith, as have been expressed on a variety of subjects of Muslim ‘personal law’ – ‘Shariat’, have been in place ever since they were declared by the Prophet Mohammed. Insofar as the practice of ‘talaq-e-biddat’ is concerned, it was submitted, that it has been practised amongst Muslims for the last 1400 years. It was submitted, that the same is an accepted mode of divorce amongst Muslims. It was therefore urged, that it was not for this Court to decide, whether the aforesaid practice was just and equitable. The reason for this Court not to interfere with the same, it was submitted was, that the same was a matter of faith, of a majority of Muslims in this country, and this Court would be well advised to leave such a practice of faith, to be determined in the manner as was considered fit by those who were governed thereby. A belief, according to learned senior counsel, which is practiced for 1400 years, is a matter of faith, and is protected under
Article 25 of the Constitution. Matters of belief and faith, it was submitted, have been accepted to constitute the fundamental rights of the followers of the concerned religion. Only such practices of faith, permitted to be interfered with under Article 25(1), as are opposed to public order, morality and health. It was pointed out, that in addition to the above; a court could interfere only when articles of faith violated the provisions of Part III – Fundamental Rights, of the Constitution. Insofar as the reliance placed by the petitioners on Articles 14, 15 and 21 is concerned, it was submitted, that Articles 14, 15 and 21 are obligations cast on the State, and as such, were clearly inapplicable to matters of ‘personal law’, which cannot be attributed to State action.

It is most humbly submitted that that social reforms with reference to ‘personal law’ must emerge from the concerned community itself. It was reiterated, that no court should have any say in the matter of reforms to ‘personal law’. It was submitted, that it was not within the
Domain of judicial discretion to interfere with the matters of ‘personal law’ except on grounds depicted in Article 25(1) of the Constitution. It is contended, that the practice of
‘talaq-e-biddat’ was not liable to be set aside.


It is also submitted, that Article 25(2) (b) vested the power with the legislature, to interfere with ‘personal law’ on the ground of social welfare and reform. It was therefore contended, that the prayer made by the petitioner and those supporting the petitioner’s case before this Court, should be addressed to the members of the community who are competent to amend the existing traditions, and alternatively to the legislature which is empowered to legislatively abrogate the same, as a measure of social welfare and reform.

It is submitted, that when parties consent to marry, their consent does not extend to the choice of the person with reference to whom the consent is extended, but it also implicitly extends to the law by which the matrimonial alliances are to be regulated. If the consent is to marry in consonance with the ‘personal law’, then the rigours of ‘personal law’ would regulate the procedure for dissolution of marriage. And likewise, if the consent is to marry under the Special Marriage Act, 1954, the consent is to be governed by the provisions of the aforesaid legislation. In such a situation, it was submitted, that a person, who had consciously opted for the matrimonial alliance under ‘personal law’ cannot complain, that the ‘personal law’ was unfavourable or discriminatory. It is submitted, that in the above view of the matter, the very filing of the instant petition before this Court, and the support of the petitioner’s cause by those who have been impleaded, or had appeared to represent the petitioner’s cause, must be deemed to be wholly misconceived in law.

‘Talaq-e-biddat’ – triple talaq were matters of legislative policy, and could not be interfered with through the judicial process.

As in the case of Maharshi Avadhesh v. Union of India, wherein the petitioner had approached this Court by filing a writ petition under Article 32 of the Constitution,
Court dismissed the writ petition by observing, “these are all matters for legislature. The court cannot legislate on these matters.”

Why Triple talaq is not unconstitutional-

·        Triple Talaq is related with personal law board ‘Shariat’ and thus it can’t be modified by centre.

·        According to Article 44- Uniform Civil Code is the subject matter of state and it can’t be enforced now because it is not proper time.

·        According to Shariat Act 1937- The family disputes were trial by ‘Sharia Court.’

·        After Talaq, the wife is entitled to the full payment of Mehr which was decided at the time of Nikah.
·        If reconciliation is not successful then according to Quran “Divorce is the most appropriate medium.”

·        According to Concurrent List VII Schedule, Entry Number 5 Of Constitution of India, Stated that- “Marriage and divorce; infants and minors; adoption; wills; intentacy and succession; joint family and partition” all matters are governed by personal laws.


·        According to Article 372- Any personal laws exists until the competent legislation altered or repealed or amended. It is also mentioned under Article 13(b)(3).

·        Personal laws are flexible to provide judgement and also take less time.


·        Triple Talaq is valid in the condition of just cause.








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 Constituion of India is not maintainable in the Hon’ble Court.

b.     To declare the Instant triple talak pronounced by respondent may not be void ab initio.

c.      This Hon’ble court may not to be 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 Respondent)










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