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
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Page
No.
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1.
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Abbreviation used
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3
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2.
|
Index of Authorities
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4
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3.
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Statement of Jurisdiction
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5
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4.
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Statement of Issue
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6
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5.
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Synopsis of Facts
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7-8
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6.
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Argument Advanced
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9-11
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7.
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Whether the instant triple talaq
is valid or not
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12-13
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8.
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Why triple talaq is not
constitutional
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14
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9.
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Prayer
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15
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ABBREVIATION
USED
Sec
|
Section
|
Art
|
Article
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Anr.
|
Another
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SC
|
Supreme
Court
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&
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And
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V./Vs.
|
Versus
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Hon’ble
|
Honourable
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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-
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.
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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