Petitioner Moot

ICFAI INTERNAL MOOT 2019
IMC -P07
INTRA MOOT COURT COMPETITION, 2019
IN THE HON’BLE SUPREME COURT OF UNION OF

HRIDAYASTHAN UNDER ARTICLE 32 OF THE CONSTITUTION OF
UNION OF HRIDAYASTHAN, 1949
ORIGINAL WRIT JURISDICTION

PUBLIC INTEREST LITIGATION
IN THE MATTER OF:
W.P. (CIVIL) NO. ___2019

JUST CAUSE v. UNION OF HRIDAYASTHAN
& OTHERS
(APPELLANT) (RESPONDENT)
UPON SUBMISSION TO THE BENCH OF THE HONOURABLE SUPREME COURT OF UNION OF

HRIDAYASTHAN 1949
MEMORIAL FOR THE PETITIONERS
1
MEMORIAL FOR THE PETITIONER
TABLE OF CONTENTS
LIST OF ABBREVIATION …………………………………………………………………. 3

INDEX OF AUTHORITIES ………………………………………………………………… 4
STATEMENT OF JURISDICTION …………………………………………………………8

STATEMENT OF FACTS ……………………………………………………………………9
ISSUES RAISED …………………………………………………………………………….. 13
SUMMARY OF ARGUMENTS …………………………………………………………… 14
PLEADINGS ……………………………………………………………………………….....18
(I) WHEATHER THE SUIT IS MAINTAINABLE?

 that the petitioner has locus standi
 that all the remedies available to the petitioner are exhausted
 that the fundamental rights of the petitioner have been violated
(II) WHETHER THE MARRIAGE IS LEGALLY VALID IN THE EYES OF
LAW?
 Whether the conversion is valid
 Whether the second marriage amounts to bigamy
 Whether the respondents have committed the offence under 420
(III) WHETHER THE RESPONDENTS HAVE MISUSED SECTION 377
 Whether the sex change is valid
 Whether the respondents have misused the section 377 under IPC
 Whether fundamental rights of the petitioner have been violated
PRAYER …………………………………………………………………………………… 38
2
LIST OF ABBREVIATION
Abbreviation EXPANSION
AIR ALL INDIA REPORTS
Art. ARTICLE
A.P. ANDHRA PRADESH
Bom. BOMBAY
Ch. CHAPTER
Govt. GOVERNMENT
IBR INDIAN BAR REVIEW
JILI JOURNAL OF INDIAN LAW INSTITUTE
Jour. JOURNAL
Ker. KERALA
Pg. PAGE NUMBER
¶ PARAGRAPH
¶¶ PARAGRAPHS
Pvt. PRIVATE
SC SUPREME COURT
SCC SUPREME COURT CASE
SCR SUPREME COURT REPORT
U/a UNDER ARTICLE
UOI UNION OF INDIA
v. VERSUS
Vol. VOLUME
3
Books and Texts Referred
1. 32 HALSBURY’S LAW OF ENGLAND (5th ed. 2012)
2. BLACK LAW DICTIONARY
3. VIRENDRA SINGH, A COMPLETE HANDBOOK: INDIAN POLITY WITH

INDIAN
CONSTITUTION & PARLIAMENTARY AFFAIRS (1st ed. 2016)
4. DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA- VOL.I (14th ed. 2009)
PUBLISHER-LEXIS NEXIS BUTTHERWORTHS WADHWA
5. M.P. JAIN, INDIAN CONSTITUTIONAL LAW (6th ed.) ECONOMY PAPER BACK
EDITION,
PUBLISHER-LEXIS NEXIS BUTTHERWORTHS WADHWA
6. NARENDRA KUMAR, CONSTITUTIONAL LAW OF INDIA, PUBLISHER-

ALLAHABAD LAW
AGENCY
7. P.M.BAKSHI, THE CONSTITUTION OF INDIA, (15TH ED.), PUBLISHER-

UNIVERSAL LAW
PUBLISHING
8. H.K.SAHARAY, THE CONSTITUTION OF INDIA- AN ANALYTICAL

APPROACH (3RD ED.)
9. V.N.SHUKLA’S, CONSTITUTION OF INDIA (13th ed.)
Cases Referred
1. BALCO Employees Union v Union of India AIR 2002 SC 350

AT 353
4
2. Janata Dal case, 1993 AIR SCW 248
3. Binny Ltd. And Anr. v. Sadasivan and Ors AIR 2005 SC 320
4. Sukhdev and Ors v. Bhagatram and Ors AIR 1975 SC 1331
5. Charan Lal Sahu v. Union of India AIR 1990 SC 1480,
6. Shivajiroa Nilangekar Patil v. Mahesh Madhav AIR 1987 SC 294

Gosavi,; Indian Banks Association, Bombay and
others v. Devkala Consultancy service and others, AIR 2004 SC 2615
7. Daryao v. State of Uttar Pradesh AIR 1961 SC 1457
8. K.K.Kochuni v. State of Madras AIR 1959 SC 725
9. Khyerbari Tea co. v. State of Assam AIR 1964 SC 925
10. Madanan seetha Ramalu v. Madanan vimla C.M.A. No. 2285 of

2003
11. Vilayat Raj v. Sunita AIR 1983 Delhi 351
12. Abdool Razak v. Aga Mohammad Jaffer (1804) 21 IA 56, 64.
13. Skinner v. Skinner (1987) ILR 25 Cal

537
14. Dr. Abdur Ramhim Under v. Smt. Padma Abdur AIR 1982 Bom 341
Rahim Under,
15. Mhtubunesa v. Rifaqat Ullah AIR 1925 All 474
16. Ram Kumari (1891) 18 Cal 264.
17. Smt. Sarla Mudgal, President, ... vs Union Of India & 1995 AIR 1531,
Ors, 1995 1995 SCC (3) 635
18. Lily Thomas v. Union of India AIR 2000 SC 1651
19. J.J. Chandra v. Abinash (1939) 2 Cal.12.
5
20. Kanwal Ram v. H.P; Varadarajan v. State of 1966 SC 614; S.

Madras,
1965 SC 1964
21. Narasu Appa Mali v. State of Bombay AIR 1952 Bom 84
22. Ahmedabad Womens Action Group v. Union of India AIR 1997 3 SCC
573
23. K.J. Prasad v. Union of India (UOI) rep. by its 1996 (4) ALT 1138
Secretary, Law Dept. and Anr
24. Charu Khurana v. Union of India (2015) 1 SCC 192
25. Vishaka v. State of Rajasthan AIR 1997 SC 3011
Articles and Reports Referred
1. Justice R.C.Lahoti, speech on Law Day, 2 SCC (JOUR.) 1 2005
2. V.M. Tarkunde, Securalism and Indian Constitution, 22 SECULARISM IN CRISIS 143.

149
(SPRING 1995)
3. Vikramjit Banerjee and Sumeet Malik, Changing Perceptions of Secularism, 7 SCC
(JOUR.) 3 (1998)
4. Ronjoy Sen, Articles of Faith: Religion, Secularism and the Indian Supreme Court,
https://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780198063803.001.0001/
Constitutional Texts Referred
1. THE CONSTITUTION OF INDIA,1950
Web Resources
6
1. https://heinonline.org (HEIN ONLINE)
2. www.manupatrafast.com (MANUPATRA)
3. www.scconline.com (SCC ONLINE)
4. www.judis.nic.in (THE JUDGES INFORMATION SYSTEM)
5. https://www.refworld.org/ (UN REFWORLD)
6. www.westlaw.india.com (WEST LAW INDIA)
7
STATEMENT OF JURISDICTION
The Hon‟ble Supreme Court of Hridayasthan has the jurisdiction in this matter under
Article 32 of the Constitution of Hridayasthan which 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.”
8
STATEMENT OF FACTS
BACKGROUND
1. Prof. Madan Mohan, aged 45 years, is a reputed professor of Biochemistry and nationally
and internationally popular researcher. He is working as Head of the Department and
Research coordinator in Sarvajana Viswavidyalaya (SVV)”, known for its academic
excellence situated in Subhashpur - District of Moolvasi State, Union of Hridayasthan.
2. Prof. Madan Mohan is a progressive in thoughts and approach in his personal and
professional life. He has a son Jag Mohan and wife Suchitra, suchitra is working as a
gazette officer in the Statistics Department of Subhashpur District.
3. Another Mr. Rehman, aged 25 years, is a promising research scholar working on Organism
Biology and Evolution- Structural Consequences of Functional adaptation’ under the
guidance of Prof. Madan Mohan. The hard-work and pleasing nature of Mr. Rehman
attracted the attention of Prof. Madan Mohan, and their close working chemistry resulted
in an unusual bond in between them.
4. For a long time, their relationship was being carried on in secrecy. Mrs. Suchitra discovered
about their relationship when she attended the University convocation program and she
was shocked to see their affection a love towards each other, she warned both of them to
stop such unnatural and indecent behaviour and further told them if they don’t change she
will file criminal cases against both of them.
5. Rehman even after facing the threats form Suchitra, and her family members was not in
intention to abandon the relationship. After discussing with Professor and legal experts, he
underwent sex change surgery and sexually transformed to woman further changed his
name as ‘Razia Sultana’, and issued a public notification to that effect.
9
FILING OF SUITS
6. Meanwhile Prof. Madan Mohan converted to Islam by undergoing Kalma and changed his
name as ‘Ahmed’, after that both Razia alias Rehman and Madan Mohan alias Ahmed
performed Nikha. Both of them declared that they underwent a valid marriage ceremony
and started living together. Aggrieved by these developments, Mrs. Suchitra filed a
criminal case and charged them under 377, 420 and 494 of H.P.C.
7. “Maanav Hitakari Samaj” an organization of LGBT extended their support to the cause of
Razia. Razia filed writ petition before High court of Moolavasi under Art. 19 and 21 of
Constitution of Hridayasthan. The episode has become an eye in the storm as many
organizations and societies of all communities organized violent protests before the Police
and the Courts both in favor and against the Professor and Scholar.
8. Now there is a pandemonium since both the parties stirred the sentiments and emotions of
both the communities and also considerable outcry condemning the action of the Professor
and the Scholar.
9. “Just Cause” a social organization filed a Public Interest Litigation (PIL) before the Apex
Court of Hridayasthan to decide upon the question of law arising out of the relationship of
the Professor and the Research Scholar, and to direct transfer of cases in question from the
High Court and Lower Court to the Apex Court, as the cases involved many substantial
questions of law and constitution, and as the nature of cases moved from individuals to
public issues, and the intervention of the Apex Court is sought in the interest of justice and
public at large.
10
ISSUES RAISED
1) WHEATHER THE SUIT IS MAINTAINABLE?
2) WHETHER THE MARRIAGE IS LEGALLY VALID IN THE EYES OF LAW?
3) WHETHER THE RESPONDNET HAS MISUSED THE PROTECTION PROVIDED

UNDER 377 OF IPC?
11
SUMMARY OF ARGUMENTS
ISSUE 1-WHEATHER THE SUIT IS MAINTAINABLE?
1. The rule of Locus Standi has been relaxed by the courts for such purposes with a
view to enable a citizen of India to approach the courts for such purposes with a
view to enable a citizen of India approach the courts to vindicate legal injury or
legal wrong caused to a section of people by way of violation of any statutory or
constitutional right. Where a writ petition has been held to be not entertained on
the ground or otherwise of lack of locus, the court in larger public interest has
entertained a writ petition. In an appropriate case, where the petitioner might have
moved a court in his private interest and for redressal of the personal grievance,
the court furtherance of public interest may treat it necessary to enquire into the
state of affairs of the subject of litigation in the interest of justice. Thus, a private
interest case can also be treated as public interest case.
2) WHETHER THE MARRIAGE IS LEGALLY VALID IN THE EYES

OF LAW?
2. The petitioner humbly submits that conversion made by the respondent has been
made with a mala fide intention, the conversion. In case of conversion there
should be a change of heart and honest conviction which lacks on the side of the
respondent. The respondent has a mala fide or a dishonest intension to have two
wives rather than the faith to profess the religion. As the conversion is made out
of mala fide intension, hence it becomes invalid and the second marriage is an
offence under bigamy.
3. The offence of bigamy is committed only if the required ceremonies of marriage

are performed. The respondents have fulfilled all the ceremonies and both of them
declared and underwent a valid marriage ceremony. The petitioner submits that
the offence of bigamy has been committed by the respondents.
12
4. In this case the respondent treated his wife as property. The respondent cheated on
his wife with another person. As seen in olden times, in the case of Draupadi,
women were often treated as property. The same practice even takes place now,
where the practice of dowry still takes place. Its almost like they are placing a
price on the woman’s head. Similarly, in this case, the respondent thought that he
could just gamble with the life of the petitioner by cheating on her.
3) WHETHER THE RESPONDNET HAS MISUSED THE

PROTECTION PROVIDED UNDER 377 OF IPC?
5. The respondent had mala-fide intention while going through the sex change. She
did it because she wanted to get married. This also led to the mala fide conversion
of the Prof. So, in all aspects the sex change is not valid.
6. It is humbly submitted by the petitioners that the respondents misused the

protection offered to LGBT community under Section 377. Due to the mala fide
intention of the respondent to undergo the sex change operation just for the
purpose of marriage, she can’t claim any protection under this Section 377.
13
PLEADINGS
ISSUE 1-WHEATHER THE SUIT IS MAINTAINABLE?
1.1-That the petitioner has Locus Standi

2) Judicial interference by the way of PIL is available if there is an injury to public
because of dereliction of constitutional or statutory obligation on the part of the
government. Court will interfere only if there is a clear violation of constitution
or statutory provision of non-compliance by the state with its constitutional or
statutory duties.1 Lexically the expression Public Interest Litigation (PIL) means
a legal action initiated in court of law for the enforcement of public interest or
general interest in which the public or class of the community has pecuniary
interest in which the public or class of the community has a pecuniary interest or
some interest by which their legal rights or liabilities were affected.2
3) Public Function is one which “seeks to achieve some collective benefit for the
public or a section of the public” 3.Institutions engaged in performing public
functions are, by virtue of the functions performed, government agencies.4 Further
under the well-established doctrine of Parens Patriae, it is the obligation of the
State to protect and take into custody the rights and the privileges of its citizens
for discharging its obligations. 5
4) The rule of Locus Standi has been relaxed by the courts for such purposes with a
view to enable a citizen of India to approach the courts for such purposes with a
view to enable a citizen of India approach the courts to vindicate legal injury or
legal wrong caused to a section of people by way of violation of any statutory or
constitutional right. Where a writ petition has been held to be not entertained on
the ground or otherwise of lack of locus, the court in larger public interest has
1
BALCO Employees Union v Union of India AIR 2002 SC 350 AT 353
2
Janata Dal case, 1993 AIR SCW 248
3
Binny Ltd. And Anr. v. Sadasivan and Ors. AIR 2005 SC 320
4
Sukhdev and Ors v. Bhagatram and Ors AIR 1975 SC 1331
5
Charan Lal Sahu v. Union of India, AIR 1990 SC 1480,
14
entertained a writ petition. In an appropriate case, where the petitioner might have
moved a court in his private interest and for redressal of the personal grievance,
the court furtherance of public interest may treat it necessary to enquire into the
state of affairs of the subject of litigation in the interest of justice. Thus, a private
interest case can also be treated as public interest case.6
1.2-That all the remedies available to the petitioner are exhausted

5) Article 32 is in itself a fundamental right and therefore, the existence of an
alternative remedy is no bar to the Supreme Court entertaining a petition under
Article 32 for the enforcement of a fundamental right.
6) When once the court is satisfied that the petitioner’s fundamental has been
infringed, it is not only its right but also its duty to afford relief to the petitioner,
and he need not establish either that he has no other adequate remedy, or that he
has exhausted all remedies provided by law, but has not obtained proper redress.
When the petitioner establishes infringement of his fundamental right, the court
has no discretion but to issue an appropriate writ in his favor.7
7) In K.K.Kochuni v. State of Madras8, the Supreme court held that through the
existence of an adequate legal remedy was a ting to be taken into consideration in
the matter of granting prerogative writs, this was not an absolute ground for
refusing a writ under Article 32, because the powers given to the supreme court
under Article 32, were much wider and were not confined to the issue of
prerogative writs only.
1.3 The fundamental rights of the petitioner have been violated

8) Art. 32 can be invoked only when there is an infringement of a Fundamental
Rights. The Supreme Court has laid emphasis on this aspect of Art.32 as follows.
9) It is well-settled that, the jurisdiction conferred on the Supreme Court under
Art.32 is an important and integral part of the Indian Constitution but violation of
6
Shivajiroa Nilangekar Patil v. Mahesh Madhav Gosavi, AIR 1987 SC 294; Indian Banks Association, Bombay and
others v. Devkala Consultancy service and others, AIR 2004 SC 2615
7
Daryao v. State of Uttar Pradesh, AIR 1961 SC 1457
8
(K.K.Kochuni v. State of Madras, 1959 )
15
a Fundamental Right is the sine qua non for seeking enforcement of those rights
by the Supreme Court has to consider the direct and inevitable consequences of
the action which is sought to remedied or the guarantee of which is sought to be
enforced. Under Art. 32 the Court confines itself to the question of infringement
of the Fundamental Rights and does not go into any other question.9The
fundamental rights of the petitioner have been violated, hence the PIL is
maintainability
ISSUE 2-Whether the marriage between Razia and Ahmed is valid?
2.1 WHETHER THE CONVERSION IS VALID

10) Religion is a very sensitive and personal aspect of individual's life and the
constitution of India guarantees the freedom of conscience and religion to people
of all denominations. Thus, a person is free to profess any faith or relinquish his
faith of birth and convert to another religion. However, in view of the diversity
personal laws in our country, upon apostasy the personal law of the convert words.
Conversion of a spouse gives to the non-convert spouse, a ground for matrimonial
relief. The Privy Council said, “The written law of India has prescribed broadly
that in matters of succession and inheritance, the Hindu law is to be applied to
Hindu and Mohammedan law to Mohammedan…This rule must be understood to
refer to Hindus and Mohammedans not by birth merely but religion also”
11) Under section 13(1)(ii) of the Hindu Marriage Act,1955,” any marriage
solemnized, whether before or after the commencement of this Act, may on a
petitioner presented by either the husband or the wife, be dissolved by a decree of
divorce on the ground that the other party has ceased to be a Hindu by conversion
to another religion.
16
12) This is available as a ground for judicial separation also. Prior to 1976 the grounds
for divorce and judicial separation were different and change of religion was a
ground for judicial separation are the same and hence conversion is a now a
ground for judicial separation as well
13) Madanan seetha Ramalu v. Madanan vimla 10, a husband was granted divorce on
his wife converting to Christianity after marriage. It is important to note that
conversion does not automatically affect a marriage tie, and secondly, it is the
non-convert spouse only who can seek matrimonial relief on this ground. A
spouse who gives up Hinduism and adopts another faith cannot go to the court
and seek any relief on this ground. This is banned even under the provisions of s.
23(1)(a), viz., that the petitioner cannot be allowed to take advantage of his or her
own wrong or disability.
14) The issue whether a marriage performed under the Hindu Law can be dissolved
under the Hindu Marriage Act, 1955 by a spouse who ceases to be a Hindu by
conversion to another religion, was considered by the Delhi High Court in Vilayat
Raj v. Sunita11. The parties were Hindu at the time of marriage in 1978. They
separated in 1980 and in 1981 the husband filed a petition for divorce under s.
13(1)(ia) on the ground of cruelty. In the petition he set his religion as
Mohammedan at the time of filing the same. The wife challenged his right to file
a petition under the Hindu Marriage Act. 1955. On the ground that he was no
longer a Hindu. While the lower court accepted the wife's plea, the High court
reversed the order.
15) The converts to Islamic faith are considered to have substituted the religion of
Islam for the original religion and a convert must formally profess to be a
Mohammedan. A non- Muslim, who has attained majority and is of sound mind
embrace Islam in any of the two modes-
10
(K.K.Kochuni v. State of Madras, 1959 )
10
Khyerbari Tea co. v. State of Assam, AIR 1964 SC 925
10
(Madanan seetha Ramalu v. Madanan vimla, 2003 )
11
(Vilayat Raj v. Sunita, 1983 )
17
a) He may simply declare that he believes in the oneness of God and the Prophetic character
of Mohammad
b) He may also go to mosque, where they can utter Kalma (Lailaha-ill-Allah-Muham-mad-ur
Rasoolullah) before Imam, whereupon he is given a Muslim name by the Imam. The
conversion must however be bona fide. The Court will not permit any one to commit fraud
upon the law by pretending to be a convert to Islam in order to elude the personal law by
which he/she is bound.12
In this case prof. Madan Mohan converted to Islam by undergoing Kalma and
changed his name as “Ahmed”,
16) In Abdool Razak v. Aga Mohammad Jaffer13, Lord Macnaughten stressed upon
the bona fide profession of islam says: “it was a mistake to talk of conversion…No
court can test or gauge the sincerity of the religious belief”. The court are
concerned with the minimum faith.
17) In Skinner v. Skinner14 the privy council , while referring to the possibility that a
change of religion on the part of both the spouses might have the effect of altering
rights incidental to the marriage, was careful to add qualification that such change
must be made ‘honestly’ without any intent to commit a fraud upon the law. Thus,
in case of conversion is gone into conscientiously after such an honest conviction,
then alone there is a conversion of faith or it can be said that a person is professing
another religion. As to whether there is in fact a conversion or not must depend
on facts and circumstances of each case and no general rule can be laid down in
that behalf.15
18) A conversion would be considered valid and lawful unless-
 The conversion is a pretended or colorable one for the purposes of purpose of fraud upon
the law
 The whole of man’s conduct and the evidence of surrounding facts is such to run counter
to the presumption of conversion to Islam 16
12
Principles of Mohammedan Law by Tyabji pp. 35-36
13
(1804) 21 IA 56, 64.
14
(1987) ILR 25 Cal 537
15
Dr. Abdur Ramhim Under v. Smt. Padma Abdur Rahim Under, AIR 1982 Bom 341 at pp. 356,357,358
16
Fyzee p.64, Tyabji p.8
18
19) Merely by conversion to Islam, a wife of Hindu cannot legally marry a Mohammed and
during life time of her Hindu husband as the marriage of Hindu wife is not dissolved by
conversion.17 In a similar case, Ram Kumari 18 a Hindu married women embraced Islam in
the belief that her conversion to Islam would ipso facto dissolve her marriage with her
Hindu husband. After conversion, she married again with a Muslim. She was convicted for
the offence of bigamy. The respondent mere conversion does not dissolve the first
marriage. In Sarla Mudgal vs Union of India 19, the Supreme Court has held that the second
marriage of a Hindu Husband after conversion to Islam, without having his first marriage
dissolved, under the law would be invalid. The Second marriage would be void in terms of
the provisions stated in Section 494 of IPC.
20) The petitioner humbly submits that conversion made by the respondent has been made with
a mala fide intention, the conversion. In case of conversion there should be a change of
heart and honest conviction which lacks on the side of the respondent. The respondent has
a mala fide or a dishonest intension to have two wives rather than the faith to profess the
religion. As the conversion is made out of mala fide intension, hence it becomes invalid
and the second marriage is an offence under bigamy.
2.2 WHETHER THE SECOND MARRIAGE AMOUNTS TO BIGAMY
21) Marrying again during lifetime of husband or wife.—Whoever, having a husband

or wife living, marries in any case in which such marriage is void by reason of its
taking place during the life of such husband or wife, shall be punished with
imprisonment of either description for a term which may extend to seven years,
and shall also be liable to fine.
22) The only exception(s) to this being that-
o Any person whose marriage with such husband or wife has been declared
void by a Court of competent jurisdiction
17
Mhtubunesa v. Rifaqat Ullah, AIR 1925 All 474
18
(1891) 18 Cal 264.
19
(Smt. Sarla Mudgal, President, ... vs Union Of India & Ors, 1995 )
19
o Where the spouse has been continually absent for a period of 7 years and
not heard to be alive
For an offence of bigamy to have been committed the following ingredients are required
(i) the accused must have contracted first marriage

(ii) he/she must have married again
(iii) the first marriage must be subsisting
(iv) the first spouse must be living
The petitioner humbly submits that the respondent falls under the ingredients of the
offence of bigamy and he willing married again despite the fact that his spouse was alive
and the first marriage was subsisting.
22) In Skinner vs Orde, Helen Skinner was married according to the Christian Rites with
George Skinner who died in the lifetime of Helen. Thereafter, Helen cohabited with John
Thomas who was married to a Christian wife, who was alive at that time. In order to
legalize their union, Helen and John both converted to Islam. It was however held that
the conversion was not bona fide. Their Lordships of the Privy Council, held that the
conversion was a pretended conversion for the purpose of bigamy. This was not
permissible under law.
23) In Sarla Mudgal vs Union of India 20, the Supreme Court has held that the second
marriage of a Hindu Husband after conversion to Islam, without having his first marriage
dissolved, under the law would be invalid. The Second marriage would be void in terms
of the provisions stated in Section 494 of IPC.
24) Similarly, in Lily Thomas v. Union of India21, the supreme court has observed that if
a Hindu wife filed a complaint for the offence of bigamy under section 494,ipc on the
ground that, during the subsistence of the marriage her husband had married a second
wife under some other religion after converting to that religion, the offence od bigamy
20
(Smt. Sarla Mudgal, President, ... vs Union Of India & Ors, 1995 )
21
AIR 2000 SC 1651
20
pleaded by her would have to be investigated and tried in accordance with the provisions
of the Hindu marriage act. Since under Hindu marriage act, a bigamous marriage is
prohibited and has been constituted as an offence under section 17 of the Act, any
marriage solemnized by the husband during the subsistence of that marriage in spite of
his conversion to another religion, would be an offence under section 17 of the Hindu
Marriage Act read with section 494, IPC.
25) The Calcutta High Court has held that where an Indian Christian domiciled in India,
and married an Indian Christian girl who also is domiciled in India, embraces the Islamic
faith, he may enter into a valid contract of marriage with a Mohammedan woman, though
the first marriage with the Christian wife subsists.22 And hence amounts to bigamy.
26) The offence of bigamy is committed only if the required ceremonies of marriage are
performed.23 The respondents have fulfilled all the ceremonies and both of them declared
and underwent a valid marriage ceremony. The petitioner submits that the offence of
bigamy has been committed by the respondents.
2.3 WHETHER THE RESPONDENT HAS COMMITED THE OFFENCE UNDER

420 OF THE IPC
27) Cheating and dishonestly inducing delivery of property.—Whoever cheats and

thereby dishonestly induces the person deceived to deliver any property to any person, or
to make, alter or destroy the whole or any part of a valuable security, or anything which
is signed or sealed, and which is capable of being converted into a valuable security, shall
be punished with imprisonment of either description for a term which may extend to
seven years, and shall also be liable to fine.
It is humbly submitted by the petitioners that the respondent has committed the offence
under 420 of IPC. The Supreme Court in Ishwarlal Girdharilal vs State, held that word
22
J.J. Chandra v. Abinash (1939) 2 Cal.12.
23
Kanwal Ram v. H.P,1966 SC 614; S. Varadarajan v. State of Madras, 1965 SC 1964
21
property in section 420 of IPC is not limited to goods or articles, which have money value,
but it also extends to things that have no money value.
In this case the respondent treated his wife as property. The respondent cheated on his
wife with another person. As seen in olden times, in the case of Draupadi, women were
often treated as property. The same practice even takes place now, where the practice of
dowry still takes place. Its almost like they are placing a price on the woman’s head.
Similarly, in this case, the respondent thought that he could just gamble with the life of
the petitioner by cheating on her.
ISSUE 3- WHETHER SECTION 377 HAS MISUSED BY THE RESPONDENT

3.1- WHETHER THE SEX CHANGE IS VALID
377. Unnatural offences. —Whoever voluntarily has carnal intercourse against the order of
nature with any man, woman or animal, shall be punished with [imprisonment for life], or with
imprisonment of either description for a term which may extend to ten years, and shall also be
liable to fine. Explanation. — Penetration is sufficient to constitute the carnal intercourse
necessary to the offence described in this section.
We must first understand the meaning of sex change and its associated terms,
Sex change is a process by which a person or animal changes sex – that is, by which
female sexual characteristics are substituted for male ones or vice versa.
Sex reassignment surgery (SRS) and several other names, is a surgical procedure by which
a transgender person's physical appearance and function of their existing sexual
characteristics are altered to resemble that socially associated with their identified gender.
In this case, the petitioner did not go through with the sex change with a bona fide intention, but
she did it with a mala fide intention ie. She went through with the sex change surgery, because
she wanted to cheat the law and she only did it to get married.
The Respondent has the freedom to speak and express herself in anyway under Article 19. 19 (a)
states that all citizens have the right to freedom of speech and expression. But this right is subject
22
to limitations imposed under 19 (2) which empowers the state to put reasonable restrictions on
the following grounds eg. Security of the state, friendly relations with foreign states, public order,
decency and morality, contempt of court, defamation, incitement to offence and integrity and
sovereignty of India. The respondent can be charged on the grounds of decency and morality.
Thus, the respondent cannot claim any rights under Article 19.
The respondent also can be deprived of her life or personal liberty. Under Article 21, the
respondent also has a right to privacy which can be violated. As long as the act is reasonable
under Article 14 and 19. In this case, it is not reasonable under Article 14 and 19.
The respondent had mala-fide intention while going through the sex change. She did it because
she wanted to get married. This also led to the mala fide conversion of the Prof. So, in all aspects
the sex change is not valid.
3.2-WHETHER THE RESPONDENT HAS MISUSED THE SECTION 377 OF IPC

It is humbly submitted by the petitioners that the respondents misused the protection offered to
LGBT community under Section 377. Due to the mala fide intention of the respondent to undergo
the sex change operation just for the purpose of marriage, she can’t claim any protection under
this Section 377.
Marriage is an institution that binds two people together for eternity. India is a secular country
where people have a constitutional right to follow any religion as per their desire. There are
different religious personal laws that lay down marriage laws in India. However, no matter what
the personal law is the basic principle of marriage is the same. All marriages are a part of the
society, multiple and various societies form a state.
Article 19
It is humbly submitted that the respondents cannot claim their right. Even though freedom of
speech and expression are indispensable in a democracy, reasonable restrictions are there and
can righty be used.
23
Article 19 (1) (a) says that all citizens have the right to freedom of speech and expression. But
this right is subject to limitations imposed under Article 19 (2) which empowers the state to put
reasonable restrictions on the following grounds; interests of the sovereignty and integrity of
India, the security of the State, friendly relations with foreign States, public order, decency or
morality or in relation to contempt of court, defamation or incitement to an offence. A restriction
can be imposed upon the respondents on the grounds of security of the state. As stated earlier,
every marriage is a part of the society and multiple societies form a state. Since the there is a
mala fide intention on part of the respondent, the marriage isn’t really an institution and is
eventually harming the society which can in turn harm the security of the state. Using this
example, multiple people could follow the same style of marriage which can and will harm the
society again that will affect the state. So even though, every person has the freedom of speech
and expression and the respondent being a citizen has the right still can’t due to the reasonable
restriction placed.
3.3-WHETHER THE FUNDERMENTAL RIGHTS OF THE PETITIONERS HAVE

BEEN VIOLATED
Article 14 & 15
It is most humbly submitted before this Hon’ble Court that the practice of polygamy infringes
upon Article 14 and 15 as envisaged under the Constitution. It is most humbly submitted that
conventionally, a polygamous marriage fails to give equal treatment to individuals involved
within the institution; consequentially amounting to a violation of the Right to Equality. It
entitles men a certain level of dominance over women and the law should not oversee that the
cultures and practices adopted should reflect a constructive vision that guarantees equality and
justice to every individual and not the one which reflects an assertive or dominant power.
Moreover, the practice of polygamy is only allowed in one sect of the society but is penalized in
the other. This immunity granted is fundamentally against the principle of equality. As stated
earlier, one cannot act in a way that is not in accordance with public order and societal moral
principles. Keeping the aforementioned points in mind, Article 14 reads, - Equality before law
24
The State shall not deny to any person equality before the law or the equal protection of the laws
within the territory of India
Moreover, Article 15 reads, - Prohibition of discrimination on grounds of religion, race, caste,

sex or place of birth (1) The State shall not discriminate against any citizen on grounds only of
religion, race, caste, sex, place of birth or any of them
It is most humbly submitted that it can be inferred that Article 14 and Article 15 of the
Constitution vitalize the principle of equality. As Article 15(2) rightly states, no citizen can be
negatively treated based on aspects relating to religion. The same is rightfully expressed under
Article 14. While on one end, Polygamy/bigamy is punishable for communities such as the
Hindu’s; the same does not apply for the citizens of the Muslim Religion. This is a blatant
infringement of the Right to Equality as expressed under Article 14 and 15 of the Constitution.
The ambit of Article 14 in the instant case primarily extends to the discrepancies between the
laws regarding polygamy. The Islamic religion is virtually immune from being subjected to the
same laws every other religion is subjected to. This paradigm of exclusively immunizing one
sect of a society from being punished for something that is recognized to be immoral is harmful.
This was further reiterated in the case of Narasu Appa Mali v. State of Bombay24 where it was
held that “There is one more point with which I would like to deal. It has been argued before us
that the impugned Act should have been made applicable to the Mahomedan citizens of the State
of Bombay. It is said that if the impugned Act constitutes a measure of social reform, there is no
reason why the State Legislature should not have given the Mahomedan community the benefit
of this social reform. The Union of India is a secular State and the State Legislature was wrong
in making a distinction between its citizens on the ground of religious differences and in applying
the provisions of the impugned Act only to Hindus. In part this argument is political and as such
we are not concerned with it. But part of the argument is based upon the provisions of Article 14
of the Constitution of India and it is necessary to deal with this aspect of the argument.” This
was further reiterated in the Ahmedabad Womens Action Group v. Union of India25.
24
(Narasu Appa Mali v. State of Bombay, 1952 )
25
(Ahmedabad Womens Action Group v. Union of India, 1997 )
25
It is most humbly submitted that the Right of Equality is being infringed on another paradigm.
It is understood by the custom itself that the practice of polygamy allows men to access the
opportunity in indulging in a polygamous relationship. However, women are entirely denied that
forum itself. In the case of Narasu Appa Mali v. State of Bombay case, the Court considered the
validity of the Bombay Prevention of Hindu Bigamous Marriages Act (Act 25 of 1946). One of
the arguments that substantially engaged the discussion of the Court was that the impugned Act
discriminated against Hindus in applying it to them as Muslim personal law, which permits
polygamy, had become void at the commencement of the Constitution being inconsistent to
Article 15(1) of the Constitution inasmuch as a Muslim male is permitted to have more than one
wife whereas a Muslim woman is restricted to one husband and that this discrimination is one
exclusively based upon sex. This was further reiterated in the case of Youth Welfare Federation
rep. by its Chairman, K.J. Prasad v. Union of India (UOI) rep. by its Secretary, Law Dept. and
Anr26
Furthermore, In the case of Charu Khurana v. Union of India27 , This Hon’ble Court recognized
that the “Sustenance of gender justice is the cultivated achievement of intrinsic human rights and
that there cannot be any discrimination solely on the ground of gender”. Furthermore in the case
of Vishaka v. State of Rajasthan28, it was recognized that the premise of gender equality is
unequivocally a Fundamental Right. It is submitted that the entire premise of polygamy allows
the men a hegemony to access the forum of practicing polygamy and completely disputes the
same forum to women. This in essence does not comply with the basic principle of gender
equality which is held as a sacrament in the Indian Constitution.
Therefore, it is most humbly submitted before this Hon’ble Court that the practice of polygamy
is violative of Article 14 and Article 15 of the Constitution as it violates the principle of equality
on two grounds; discrimination between the sect of the society is allowed to practice polygamy
and the sect that is penalized for the same, and the practice inherently discriminating between
men and women.
26
(K.J. Prasad v. Union of India (UOI) rep. by its Secretary, Law Dept. and Anr, 1996 )
27
(Charu Khurana v. Union of India, 2015 )
28
(Vishaka v. State of Rajasthan, 1997 )
26
PRAYER
In the light of the issues raised, arguments advanced and authorities cited, it is most
humbly prayed before this Hon’ble Court that this Hon’ble Court may be pleased
to hold,
Adjudge and Declare the transfer of the petition from the High court and the lower court
to the apex court valid.
Adjudge and Declare the marriage between Razia and Ahmed null and void.
Adjudge and Declare that Razia has misused the protecting provided under 377 of IPC
and the sex change to be invalid
Or pass any other order that this Hon’ble Court may deem fit in the interest of
justice.
For this act of kindness, the Counsel for the Petitioner shall duty bound forever
pray.
All of which is most humbly submitted.
Counsel for Appellant
27
Sd/-
28

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ICFAI INTERNAL MOOT 2019

INTRA MOOT COURT COMPETITION, 2019

IN THE HON’BLE SUPREME COURT OF UNION OF

ORIGINAL WRIT JURISDICTION

IN THE MATTER OF:

W.P. (CIVIL) NO. ___2019

UPON SUBMISSION TO THE BENCH OF THE HONOURABLE SUPREME COURT OF UNION OF

MEMORIAL FOR THE PETITIONERS

LIST OF ABBREVIATION …………………………………………………………………. 3

STATEMENT OF JURISDICTION …………………………………………………………8

ISSUES RAISED …………………………………………………………………………….. 13

SUMMARY OF ARGUMENTS …………………………………………………………… 14

(I) WHEATHER THE SUIT IS MAINTAINABLE?

UOI UNION OF INDIA

Books and Texts Referred

1. 32 HALSBURY’S LAW OF ENGLAND (5th ed. 2012)

2. BLACK LAW DICTIONARY

3. VIRENDRA SINGH, A COMPLETE HANDBOOK: INDIAN POLITY WITH

CONSTITUTION & PARLIAMENTARY AFFAIRS (1st ed. 2016)

PUBLISHER-LEXIS NEXIS BUTTHERWORTHS WADHWA

PUBLISHER-LEXIS NEXIS BUTTHERWORTHS WADHWA

6. NARENDRA KUMAR, CONSTITUTIONAL LAW OF INDIA, PUBLISHER-

7. P.M.BAKSHI, THE CONSTITUTION OF INDIA, (15TH ED.), PUBLISHER-

8. H.K.SAHARAY, THE CONSTITUTION OF INDIA- AN ANALYTICAL

9. V.N.SHUKLA’S, CONSTITUTION OF INDIA (13th ed.)

1. BALCO Employees Union v Union of India AIR 2002 SC 350

2. Janata Dal case, 1993 AIR SCW 248

4. Sukhdev and Ors v. Bhagatram and Ors AIR 1975 SC 1331

5. Charan Lal Sahu v. Union of India AIR 1990 SC 1480,

6. Shivajiroa Nilangekar Patil v. Mahesh Madhav AIR 1987 SC 294

7. Daryao v. State of Uttar Pradesh AIR 1961 SC 1457

8. K.K.Kochuni v. State of Madras AIR 1959 SC 725

9. Khyerbari Tea co. v. State of Assam AIR 1964 SC 925

10. Madanan seetha Ramalu v. Madanan vimla C.M.A. No. 2285 of

11. Vilayat Raj v. Sunita AIR 1983 Delhi 351

12. Abdool Razak v. Aga Mohammad Jaffer (1804) 21 IA 56, 64.

13. Skinner v. Skinner (1987) ILR 25 Cal

15. Mhtubunesa v. Rifaqat Ullah AIR 1925 All 474

16. Ram Kumari (1891) 18 Cal 264.

18. Lily Thomas v. Union of India AIR 2000 SC 1651

19. J.J. Chandra v. Abinash (1939) 2 Cal.12.

20. Kanwal Ram v. H.P; Varadarajan v. State of 1966 SC 614; S.

21. Narasu Appa Mali v. State of Bombay AIR 1952 Bom 84

24. Charu Khurana v. Union of India (2015) 1 SCC 192

25. Vishaka v. State of Rajasthan AIR 1997 SC 3011

Articles and Reports Referred

1. Justice R.C.Lahoti, speech on Law Day, 2 SCC (JOUR.) 1 2005

2. V.M. Tarkunde, Securalism and Indian Constitution, 22 SECULARISM IN CRISIS 143.

3. Vikramjit Banerjee and Sumeet Malik, Changing Perceptions of Secularism, 7 SCC

Constitutional Texts Referred

1. THE CONSTITUTION OF INDIA,1950

1. https://heinonline.org (HEIN ONLINE)

3. www.scconline.com (SCC ONLINE)

4. www.judis.nic.in (THE JUDGES INFORMATION SYSTEM)

5. https://www.refworld.org/ (UN REFWORLD)

6. www.westlaw.india.com (WEST LAW INDIA)

Article 32 of the Constitution of Hridayasthan which reads as follows:

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

1) WHEATHER THE SUIT IS MAINTAINABLE?

2) WHETHER THE MARRIAGE IS LEGALLY VALID IN THE EYES OF LAW?

3) WHETHER THE RESPONDNET HAS MISUSED THE PROTECTION PROVIDED

ISSUE 1-WHEATHER THE SUIT IS MAINTAINABLE?

2) WHETHER THE MARRIAGE IS LEGALLY VALID IN THE EYES

3. The offence of bigamy is committed only if the required ceremonies of marriage