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35Th Bar Council of India (Trust) All India Inter-University Moot Court Competition, 2019 Team Code: TC 30
35Th Bar Council of India (Trust) All India Inter-University Moot Court Competition, 2019 Team Code: TC 30
IN THE MATTER OF
2019
TABLE OF CONTENTS
TABLE OF CONTENTS
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LIST OF ABBREVIATIONS
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INDEX OF AUTHORITIES
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STATEMENT OF JURISDICTION
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STATEMENT OF FACTS
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ISSUES RAISED
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SUMMARY OF ARGUMENTS -------------------------------------------------------15
ARGUMENTS ADVANCED
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PRAYER ----------------------------------------------------------------------------------------32
& And
¶ Paragraph
Anr. Another
Art. Article
Cr. Criminal
Edn. Edition
Hon’ble Honourable
i.e. That is
v. Versus
Vol. Volume
A. Table of Cases
C. Journals Referred
D. Database Referred
1 www.judis.nic.in
2 www.lexisnexis.com
3 www.manupatrafast.com
4 www.scconline.com
E. Legal Dictionary
F. Statutes Referred
The Petitioner has approached this Hon’ble Court invoking Article 32 of the Constitution of
Pindiana.
(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.”
The Petitioner has approached this Hon’ble Court invoking Article 136 of the Constitution of
Pindiana.
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any cause
or matter passed or made by any court or tribunal in the territory of India
(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order passed
or made by any court or tribunal constituted by or under any law relating to the Armed Forces.”
1. Mukhtar and Asma are Sunni and Shia Muslim respectively by religion and both are
resident of State of Chind, Pindiana. Asma was very ambitious girl who completed her
education from a very prestigious college of London. She is very inclined towards the
teachings of Quran and follows the traditions firmly hence she is a religious Muslim
female whereas Mukhtar is a man who is influenced with the modern culture of the
society and influenced by the western culture and has a habit of occasional drinking.
2. They happened to work together in a multinational company where they fell in love and
with mutual consent got married under Shariat Law. Asma was performing well in her
career and could foresee a high position in the company. Therefore she decided not to
have kids for few years of marriage. Mukhtar being an adamant person started forcing
Asma to have a baby.
3. Mukhtar picked up frequent quarrels with his wife and was habituated to drinking
regularly. The disputes between the two kept escalating as Mukhtar resorted to forcible
sex with Asma besides beating her frequently.
4. Despite such regular assaults Asma tried to reconcile the matter and reported the incident
to her In-laws and parents. On the persuasion of parents and In-laws Mukhtar agreed to
stop assaulting her.
5. After few months of good behavior Mukhtar resumed forcing Asma for having a kid.
Later in 2016 Asma got pregnant and Mukhtar was very happy on hearing the news but
Aasma didn’t want to have the child as she was at the peak of her career. She could not
afford to apply for leave at this juncture and thereby forgo her promotion to a higher post
in the organization. Therefore she decided to go for an abortion.
6. After knowing about her decision, Mukhtar and Asma’s in-laws along with her parents
convinced her to leave the job and to have the child. But unfortunately due to their
negligence, Asma suffered a miscarriage and Mukhtar blamed her for the miscarriage as
he thought that Asma herself was liable and deliberately created the situation that resulted
in miscarriage. He continued taunting and abusing her regularly and making her believe
that it was her fault.
I. WHETHER THE
FUNDAMENTAL RIGHTS OF ASMA INFRINGED THROUGH TRIPLE
TALAQ?
It is humbly submitted to this Hon’ble Court that the Petitioner has approached this Hon’ble
Court invoking Article 32 of the Constitution of Pindiana. It is contended that the present petition
is liable to be dismissed as the High Court of Chind has already pronounced Triple Talaq to be
unconstitutional and she should have approached the appropriate forum for remedies. Moreover
the Writ of Mandamus will not be applicable as there is appropriate Ordinance to punish the
Muslim male spouse who has declared Triple Talaq to their wives.
It is humbly submitted that the ordinance passed by the government is constitutional. Due to the
lack statutory laws the Muslim women were discriminated by the arbitrary use of Triple Talaq by
their Husbands. As such cases rose rapidly in Pindia it was a need of the hour for the government
to pass such ordinance making Triple talaq illegal and provide penalise provisions for the same.
It is most humbly submitted that the Petitioner has approached this Hon’ble Court under Article
32 of the Constitution of Pindiana. A mandamus is sought to direct the Executive to take proper
action against Mukhtar. The petitioner contends that although Triple talaq is declared
unconstitutional by the High Court of Chind, Mukhtar has not abided by it, pronounced Triple
talaq and hence violated her fundamental rights. The respondent submits that the petition of
Asma is liable to be dismissed due to the following grounds:
It is submitted that once a judgement is passed by the High Court of the state then such
judgement has binding nature over the whole of its territorial jurisdiction. 1 In the present case
both the Asma and Mukhtar are resident of State of Chind, Pindiana where the High Court of
Chind has already declared triple talaq to be unconstitutional. They are governed by the
judgement proclaimed by the High Court and when her rights were violated the proper procedure
would be filing be by filing a case under the appropriate court under the jurisdiction of High
Court of Chind.
It is submitted that the writ in the form of mandamus would be issued when there is a failure to
perform a mandatory duty. But even in the alleged breaches of mandatory duty the party must
show that he has made a distinct demand to enforce that duty and the demand was met with
refusal.2 Moreover in the case of Isha Beevi v. Tax Recovery Officer 3 it was held that no
occasion for the issue of a writ of mandamus can arise unless the applicant shows non-
compliance with some mandatory provision and seeks to get that provision enforced because
some obligation towards him is not carried out by the authority alleged to be flouting the law. In
1
Article 225 of the Constitution of Pindiana
2
Saraswati Indusrial Syndicate Ltd. V. Union of India, AIR 1975 SC 46
3
(1976) 1 SCC 70
It is contended that in the present matter there has been no violation of fundamental rights of the
petitioner. The husband of the petitioner gave her "triple talaq" on April, 2017, when there
existed no law criminalising the same act. Further the petitioner's contention is not valid since the
high court of chind had already declared triple talaq unconstitutional. Thus the petitioner by
seeking the honble court to declare the act of triple talaq as unconstitutional is only frustrating
the honble court's time. When one has received her remedy, there arises no logical need to seek it
again. Moreover the doctrine of exhaustion of alternative remedies provides that a litigant must
follow the hierarchy of judicial system. If petitioner felt she was aggrieved by her husband'
action she should have approached High Court of Chind and not directly Supreme Court. She has
not exhausted the remedies available closest to her. Further while the instant matter was pending
before the honble Court, the UOI had already promulgated an ordinance criminalizing the act of
triple talaq. However the petitioner does not come under the purview of the ordinance because it
does not have retrospective effect''. Therefore there is no remedy that court can offer to the
Petitioner in the present matter. And the prayer of Petitioner of having the act declared
unconstitutional has already been done by the high court thus there is no need for the Supreme
Court to again start the case and declare the same.
Hitendra Vishnu Thakur v. State of Maharashtra4, it was stated that the ambit and scope of an
amending Act and its retrospective operation as follows: “A statute which not only changes the
procedure but also creates new rights and liabilities shall be construed to be prospective in
Operation unless otherwise provided, either expressly or by necessary implication."
4
(1994) 4 SCC 602
It is most humbly submitted that the Parliament of Pindiana had passed The Muslim Women
(Protection of Rights on Marriage) Second Ordinance, 2019 which made triple talaq illegal. In
the present case Mukhtar has approached this court through SLP and challenged the validity of
the ordinance stating it to be unconstitutional. It is submitted that the ordinance passed is valid in
the eyes of law due to the following reasons: that circumstances exited that it was necessary to
pass the ordinance[A], the ordinance is not violative to the fundamental rights as enshrined in the
constitution[B] & an ordinance cannot be challenged under Article 136 of the Constitution of
Pindiana [C].
A. CIRCUMSTANCES EXITED THAT IT WAS NECESSARY TO PASS THE
ORDINANCE.
It is submitted that under the Constitution, the power to make laws rests with the legislature.
However, in cases when Parliament is not in session, and ‘immediate action’ is needed, the
President can issue an ordinance. The Supreme Court has clarified that the legislative power to
issue ordinances is ‘in the nature of an emergency power’ given to the executive only ‘to meet an
emergent situation’.5
1. The Ordinance passed was not arbitrary.
‘Arbitrarily’ means in an unreasonable manner, as fixed or done capriciously or at
pleasure, without adequate determining principle, not founded in nature of things, non-
rational, not done or acting according to reason or judgment, depending on will alone. 6
Since Maneka Gandhi’s case,7 the Courts have adopted the Wednesbury principle that if
the classification was an arbitrary act of the State under Art.12 of the Constitution, Art.14
would strike it down.8 Art.14 protects us from both legislative and executive tyranny by
way of discrimination.9
5
Article 123 of Constitution of Pindiana.
6
Sharma Transport v. Govt. of A.P., AIR 2002 SC 322.
7
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
8
Kasturi Lal Lakshmi Reddy v. State of J&K, AIR 1980 SC 1992, ¶ 14.
9
Basheshar Nath v. The Commissioner of Income Tax, Delhi & Rajasthan, AIR 1959 SC 149, ¶25
Despite the Central Government having had ample opportunity to abolish the practice before the
judgment inShayara Bano10, if not for 1400 years, at least the 67years of the existence of the
Constitution preceding Shayara Bano, the Government chose to await the adjudication in
Shayara Bano.
Once there was declaration made by this Hon’ble Court under Article 141 in Shahyara Bano
(supra), there was no surviving action, let alone “immediate action” warranted to reiteratively
abolish the practice and penalize Triple Talaq by way of an Ordinance under Article 123.
The intent behind the ordinance is abolition of triple talaq and punishment of Muslim husbands.
Thus the Ordinance passed has no element of whim or ambiguity which would make it fall
within the purview of definition of ‘arbitrarily’.
12
AIR 1963 SC 874
13
AIR 2001 SC 1980
Wherefore in the light of facts presented, issues raised, arguments advanced and
authorities cited, the Counsels on behalf of the Appellant humbly pray before this Hon’ble
Court that it may be pleased to adjudge and declare that:
Or pass any other order that the court may deem fit in the light of equity, justice and good
conscience and for this Act of kindness of Your Lordships the Appellant shall as duty
bound ever pray.
Sd/- _______________________