1ST N. J.

YASASWY NATIONAL MOOT COURT COMPETITION, 2019

R09
1st N. J. YASASWY NATIONAL MOOT COURT COMPETITION, 2019

IN THE HON’BLE SUPREME COURT OF INDIANA

ON SUBMISSION TO THE HON’BLE SUPREME COURT OF INDIANA UNDER ARTICLE 32

OF THE CONSTITUTION OF INDIANA

In the Matter of:

JANANI and Others………………………………………………….Petitioner

v.

Union of Indiana………………………..…………………….…….Respondent

WRIT PETITION NOS.___ /2019

MEMORIAL ON BEHALF OF THE RESPONDENTS

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TABLE OF CONTENTS

LIST OFABBREVIATIONS..................................................................................................v-vii

INDEX OF AUTHORITIES………………………………………………………………viii-xii
STATEMENT OF JURISDICTION .......................................................................................xiii
STATEMENT OF FACTS..................................................................................................xiv-xv
STATEMENT OF ISSUES...................................................................................................... xvi
SUMMARY OF ARGUMENTS .....................................................................................xvii-xviii
ARGUMENTS ADVANCED ................................................................................................ 1-19

1. THAT THE WRIT PETITIONS ARE NOT MAINTAINABLE...................................................1-5

1.1 That there is no violation of fundamental right....................................................................1-5
1.1.1 That the fundamental right of Hamida was not violated......................................... 2
1.1.2 That the practices of Polygamy, Nikah Halala, Nikah Mutah and Nikah Misyar do
not violate fundamental rights…………………………………………........................ 2-3
1.1.3 That there has been no violation of fundamental rights of Mumtaz
Begum…..……………….................................................................................................... 3
1.1.4 That the Supreme Court of Indiana is not the competent court for JANANI’s
contention………………………………………………………………………………….……….4
1.2 That the Alternative Relief has not been exhausted.............................................................4-5
2. THAT THE CONVERSION AND MARRIAGE OF HAMIDA IS VOID...................................5-7

2.1 That the conversion of Hamida is void.......................................................................…….5-6

2.2 That the marriage of Hamida is void…………………………………………………..….6-7

3. THAT THE PRACTICES OF POLYGAMY; NIKAH HALALA; NIKAH MUTAH; NIKAH MISYAR
ARE CONSTITUTIONAL AND NOT AGAINST THE PUBLIC ORDER, MORALITY AND

HEALTH……….………………………………………………………………...…….7-11

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3.1 That the practices of Polygamy and Nikah Halala do not violate the fundamental right…7-9

3.1.1 That the Practice of Polygamy is not against the fundamental right………….……7-9

3.1.2 That the practice of Nikah Halala is valid as per Quran…………………….………..9

3.2 That the practices of Nikah Mutah and Nikah Misyar are not against public order, morality
and health………………..……………………………………………………………………9-11

3.2.1 That Nikah Mutah does not degrade the status of women………………….......10-11

3.2.2 That Nikah Misyar is not defamatory to women………….…………….……………..11

4. THAT CONTENTION OF SECTION 5 OF MUSLIM WOMEN (PROTECTION OF RIGHTS ON

DIVORCE) ACT, 1986 IS CONSTITUTIONAL……………………………………...…..12-13

4.1 That Divorce Muslim Women cannot apply for maintenance under Sec. 125 to 128 of
Cr.P.C. without the consent of her former husband……………………………….…………12-13

5. THAT THE PRACTICES UNDER MUSLIM PERSONAL LAWS ARE

CONSTITUTIONAL......................................................................................................13-19

5.1 That the unilateral talaq is valid under Muslim Personal Law …………………...…....13-15

5.1.1 That the unilateral Talaq i.e., Talaq-e-biddat is proper form of Talaq………...13-14

5.1.2 That the unilateral Talaq i.e., Talaq-e-biddat cannot be tested on the grounds of
Constitution……………………………………………………………………………………14-15

5.2 That the provisions of inheritance under Sunni and Shia Laws are constitutionally
valid…………………………………………………………………………………………..15-17

5.2.1 That the Law of Inheritance is recognized by the Quran itself………………..……..15

5.2.2 That the Muslim women are entitled to Mahr………………………………….…..15-16

5.2.3 That the Muslim women can also inherit property through will and gift…….…16-17

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5.3 That the Muslim men are recognized to be natural guardian, as valid under Muslim
Personal Law…………………………………….………………………………..………18-19

5.3.1 That only father is recognized as the natural guardian………….………………..18-19

5.3.2 That the welfare of the child lies with the father………………………………….19

PRAYER…………………………………………………….……………………………….….20

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LIST OF ABBREVIATIONS

& : And

§, Sec. : Section

¶, Para : Paragraph

A. A. : All India Reporter

A. C. : Appeal Cases

AIR : All India Reporter

All : Allahabad High Court

All. LJ. : Allahabad Law Journal

A. R. : All India Reporter Rangoon

A. Raj. : All India Reporter Rajsthan

Art. : Article

B. A. : Bail Application

B.LJ.R : Bihar Law Journal Reporter

Bom. : Bombay

Cal. : Calcutta

CEDAW : Convention on the Elimination of All Forms of

Discrimination against Women

Const. : Constitution

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Cri LJ / Cr LJ : Criminal Law Journal

Cr.P.C. : Code of Criminal Procedure

DLR : Dhaka Law Report

Ed. : Edition

HC : High Court

Hon'ble : Honourable

I. C. : Indian Cases

IIUCS : International Islamic University Chittagong

Studies

Ker. : Kerala

Lah. : Indian Law Reporter Lahore

LJ : Law Journal

LR : Law Reporter

Ltd. : Limited

Mys. : Mysore

No. : Number

Ors. : Others

Pvt. : Private

SC : Supreme Court

SCC : Supreme Court Cases

SCR : Supreme Court Reporter

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SCW : Supreme Court Weekly

UDHR : Universal Declaration of Human Rights.

UMRI : Universal Multidisciplinary Research Institute

URL : Uniform Resource Locator

V. : Versus

Vol. : Volume

W.P. No. : Writ Petition Number

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INDEX OF AUTHORITIES

CASES

1. Abdul Kadhir v. Salima, (1886) 8 All 149……………………………………………6,16

2. Abdul v. Ahmed (1881) 8 IA 25………………………………………………………………17
3. Abdul Sattar Husen v. Mrs Shahina A.I.R. 1999 Bom 25……….……………………18

4. Andhra Industrial Works v. Chief Controller of Imports, A.I.R. 1974 S.C. 1532…….1
5. Anand S Tomer v. State of Kerala B.A.No.2798 of 2018…………………………….5,6
6. Allah Rakhi v. Karam Illahi (1933) 14 Lah. 770, 147 I.C. 123, (1933) A.L. 969…....19
7. Aulia Bibi v. Alauddin (1906) 28 All. 715…………………………………………….16
8. Baldev Singh Gandhi v. State of Punjab, (2002) 3 S.C.C. 667, 674 : A.I.R. 2002 S.C.
1124.................................................................................................................................1
9. Bai Tahira v. Ali Hussein, AIR 1979 SC 362………………………………………….1,16

10. Calcutta Gas Co. Ltd. v. State of West Bengal, A.I.R. 1962 S.C. 1044………………….2
11. Dalmia Cement (Bharat) Ltd. V. Union of India, (1996) 10 SCC 104 (para 18)………..8
12. Dara Singh v. Republic of India. (2011) 2 SCC 490: AIR 2011 SC 1436: 2011 AIR SCW
606………………………………………………………………………………………..9
13. Distt. Regstrar and Collectr v. Canada Bank, (2005) 1 SCC 496, 518 -19 (para 44): AIR
2005 SC 186………………………………………………………………………..……..8
14. Emperor v. Ayshabai (1904) 6 Bom.L.R.536……………………………………………19
15. Farzanabi v. Ayub Dadamiya AIR 1989 Bom 357………………………………………19

16. Fertilizer Corporation Kamgar v. Union of India and Others, A.I.R. 1981 S.C.
344…………………………………………………………………………………………2
17. Ghansi Bibi v. Ghulam Dastagir, (1968) 1 MYS. 566………………………..………….13
18. Haji Esmail v. Competent Officer, A.I.R. 1967 S.C. 1244………....................................1
19. Hasan Bhat v. G.M. Bhat (1961) A. J.&K…………………………………….…………19

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20. Hazran v. Abdul Rehman 1989 Cr. L.J 1519………………………………..……….12

21. Ibadat Ali v. Baldia Co-operative Bank (1968) 11 A.L.T 124……………………….17

22. Imambandi Vs. Mutsaddi (1918) 45 IA 73…………………………………………..19
23. In re Aba Satar (1905)7 Bom. L.R. 558……………………………………………...16
24. Itwari vs Smt. Asghari And Ors., AIR 1960 All 684………………………………….8
25. Lily Thomas v. Union of India, AIR 2000 SC 1650……………….………………….7
26. Mahadeo Lal v. Bidi Maniram, AIR 1933 Pat.281…………………………………….16

27. M. C. Meehta v. Union of India, (1999) 1 SCC 413: AIR 1999 SC 301………………3,9
28. Mohamed Abid v. Ludden, (1887) 14 Cal. 276………………………………………..10
29. Mohammad Tusabuddin v. Yasin Begum, 17 DLR. 224………………………………16
30. Mohd. Amin v. Ateeka Banu, (1963) A. J&K. 32………………………………………19
31. Mostt. Bibi v. Saira Khatoon v. Mostt Bibi Shahidan Khatoon. (1978) B.LJ.R. 420..…19
32. Mst. Saleha Bi v. Sheiks Gulla, AIR 1973 M.P. 207……………………………………14
33. Mt. Haidri v. Jawad Ali (1934) All. L.J. 399, 150 I.C. 149, (1934) A.A. 722………18,19
34. P.E. Mathew v. Union of India, AIR 1999 Ker 345……………………....………………8
35. P. Kuunheema Umma v. Aayssa Umma, AIR 1981 Ker. 176.........................................17
36. Poolakkal Ajisakutty v. Parat Abdul Samad, AIR 2005 Ker. 68………………………19

37. Rafiq v. Smt. Bashiran (1963) A. Raj. 239……………………………………………..18

38. Ramjilal v. Ahmed Ali (1952) A. Madhya Bharat 56…………………………………..17
39. Riju Prasad Sarma v. State of Assam, (2015) 9 SCC 461……………………………….14
40. Sakina Begum v. Malka Ara Begum (1948) A.A. 198…………………………………..19
41. Sarabai v. Mahomed (1919) 43 Bom. 641, 49 I.C. 637…………………………...……..16

42. Shafin Jahan v. Asokan K.M, AIR 2018 SC 343………………………………………..2

43. Shahan Sha A v. State of Kerla B.A. NOS. 5288 & 5289 OF 2009……………………..6

44. S.K. Sinha v. Patna University, A.I.R. 1965 Pat. 253…………………………………….4

45. Sonabai Yeshwant Jadhav v. Bala Govinda Yadav, AIR 1983 Bom. 156………………..8
46. Smt. Nasra Begum v. Rizwan Ali, AIR 1980 All 119…………………………..………15
47. State of Bombay v. Narasu Appa Mali, AIR 1952 Bom. 84……………...………..8,14,15

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48. Subhas Chandra Das Mushib v Ganga Prasad Das Mushib, AIR 1967 SC 878: (1967) 1
SCR 331…………………………………………………………………………………..6
49. Sultan Miya v. Ajibakhatoon Bibi, (1932) 59 Cal. 557: 138 I.C. 733; ....………………17
50. Ulfat Bibi v. Bafati (1927)49 All. 773, 102 I.C. 103, (1927) A.A. 581………………....19
51. Usman Khan v. Fathimunissa Begum 1990 Cr LJ 1364 (AP)……………….…………..12
52. Zarabibi v. Abdul Rezzak (1910) 12 Bom.L.R. 891.8 I.C. 618……………………...…..19

STATUTES

1. The Indian Contract Act,1872………………………………………………………….6,10

2. The Universal Declaration of Human Right, 1948………………………………………9
3. The Guardians and Wards Act,1890…………………………………………………….18
4. The Indian Succession Act, 1952………………………………………………………..18

CONSTITUTION

1. The Constitution of India., 1950……………………………………………………….8,11

ARTICLES & JOURNALS

1. Dr. Noor Mohammad Osmani, Misyar Marriage between Shari`ah texts, Realities and
scholars’ Fatawa’: An Analysis , IIUC STUDIES 301 (2011). Pdf……………………11
2. Dr. S.K. Awasthi Kataria, Law relating to protection of Human Rights,SHODHGANGA
(Mar. 18 2019, 03:08PM),
http://shodhganga.inflibnet.ac.in/bitstream/10603/67715/9/09_chapter%203.pdf.............1
3. Konina Mandal,Concept of marriage among muslims : a study on muta Marriage , U. M.
R. I. Pvt Ltd, 297 (2019),……………………………………...…………………………10
BOOKS

1. Asaf A.A. Fyzee, Outline of Muhammadan Law, 01 (5th ed. Tahir Mahmood ed.,
2008)…………………………………………………………………………………..7,18
2. Avtar Singh, Contract and Specific Relief, 177 (11th ed. , 2013)……………………….6

3. Durga Das Basu, Shorter Constitution of India 83 (14th ed. Y. V. Chandrachud ed.,
2012)……………………………………………………………………………………..8

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4. Sir Dnshaw Fardunji Mulla, Principles of Mahomedan Law, 344 (20th ed. Prof. Iqbal Ali
Khan ed. 2013)……………………………………………………………...10,14,16,18,19
5. Ratan Lal and Dhiraj Lal, The Indian Penal Code 2716 (32nd ed. V.R Manohar ed.,
2013)…………………………………………………………………………………….8

6. Aqil Ahmad, Mohammedan Law,101 (20th ed., Prof. Iqbal Al Khan ed., 2016)……....5

7. The Holy Quran……………………………………………………………………..8,9,15

MISCELLANEOUS

1. Ahad Ahmad Siddiqi, Islamic Concept, Law Of Appointment Of Guardian Under The
Guardian & Wards Act 1890 (Part–I), (Aug 15, 2019, 5:10PM)
http://courtingthelaw.com/2017/12/07/commentary/law-of-appointment-of-guardian-
under-the-guardian-wards-act-1890-part-i/..................................................................18

2. Anita Yadav, Property rights of Indian Muslim Women, Rights of Muslim Women: An
Analysis of Indian Muslim Personal Law, (Aug. 19, 2019, 9:45 AM)
https://www.researchgate.net/publication/274702838_Rights_of_Muslim_women_An_A
nalysis_of_Indian_Muslim_personal_Law......................................................................16

3. Gunjan Piplani, Property rights of a Mother in Islam, Examining A Muslim Woman’s

Right To Property, (Aug. 23, 2019, 9:30 AM) , https://www.makaan.com/iq/legal-taxes-
laws/examining-a-muslim-womans-right-to-property....................................................17

4. Muhammad ibn Adam,What is a Nikah Misyar? Is this kind of marriage permitted

according to Shari’a?, (Aug. 27th, 2019, 1:35PM ),
https://www.daruliftaa.com/node/6159.............................................................................11

5. Indira Jaising, The issues at stake in the Triple Talaq case, (Aug 17, 2019,4:23PM )
https://www.lawyerscollective.org/the-invisible-lawyer/issues-stake-triple-talaq-
case.................................................................................................................................14

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6. Radhika Iyengar, What is Nikah halala, how it was established and where it stands in
modern , (Aug 18, 2019, 3:14AM) https://indianexpress.com/article/what-is/what-is-
nikah-halala-how-it-was-established-and-where-it-stands-in-modern-india-triple-talaq-
4618415/.........................................................................................................................9

7. STATUS OF NIKAH MISYAR (Aug. 28, 2019, 3:33PM)

http://islam.ru/en/content/story/status-nikah-misyar....................................................11

8. Satyoki Koundinya, The Concept of Mutah Marriage: Is it a Social Evil?,(27th Aug.2019,

12:45 PM), https://www.researchgate.net/publication/228145621...............................10

9. Romit Agrawal & Gorang Vashistha, Natural Guardians, Guardianship Under Hindu,
Muslim, Christian And Parsi Laws, (Aug 16, 2019, 1:00PM)
http://www.legalserviceindia.com/article/l35-Guardianship.html.....................................18

10. Uma, Article 14 of Constitution of India, Right to equality of fundamental right (Aug. 27,
2019, 10:14 AM) http://www.legalservicesindia.com/article/1688/Right-To-Equality--A-
Fundamental-Right.html.....................................................................................................8

11. Kruthika, Donative intention (motive) and consideration, Concept of Gift under Muslim
Law,(Aug.28,2019,11:40AM)
htttp://www.legalserviceindia.com/articles/transfer.htm...................................................17

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STATEMENT OF JURISDICTION

This Court is competent to hear to the petition under Art. 32 of the Constitution of Indiana. As
the matter involves determining the extent of fundamental rights provided under Part III of the
Constitution of Indiana, the Hon’ble Supreme Court of Indiana constituted a constitution bench
to hear the matter which has the entire jurisdiction to hear it.

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STATEMENT OF FACTS

1. The Democratic Republic of Indiana is a secular country located in South Asia. The
Constitution of Democratic Republic of Indiana provides for freedom of religion as a
fundamental right, to give to its people the freedom of worship and religion and to outlaw
discrimination on the ground of religion. All religions are governed by their personal laws which
are governing marriage, divorce, succession, etc. Religious diversity and religious tolerance were
both established in the country by law & custom.

2. Devi, a Hindu girl of 17 years of age leaves her hometown, Dhali, a remote village in the state
of Methi in southern Indiana, to pursue her graduation in a far away city. She gets heavily
influenced by her classmates and used to visit mosque frequently. One day she took Shahada in
presence of the Maulana and two witnesses and obtained the Certificate of Conversion with a
new name Hamida. After two days on her 18th birthday she married Aslam. She went home with
her husband. Her parents didn’t let her leave home with Aslam. Hamida with the help of
“JANANI”, NGO dealing with women rights, filed a case of Habeas Corpus in the High Court of
Methi. The High Court of Methi held the conversion to be void as she is a minor. Hence, her
marriage is also held to be void as this can be as case of brainwashing and an act of ‘love jihad’.
Hamida approached before Supreme Court of Indiana.

3. Saleema got married in the year 2003 to one Mr. Sultan and a son was born out of the said
wedlock. All the time when she was at her matrimonial home, she was tortured, bullied, beaten,
and was asked to bring money from her parents house. She filed a complaint U/s 498 A of the
IPC. Getting infuriated with this, petitioner’s husband sent a letter giving her ‘Triple Talaq’. In
2014 she was married for second time to Mr. Rizwan, who was already married and had a wife.
She got pregnant second time and soon after birth of her second son, she was given a Talaq in the
Hasan form. Saleema and many other similar situated Muslim women throughout Indiana along
with “JANANI” is before the Supreme Court praying to declare practices of ‘Polygamy’, ‘Nikah

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Halala’, ‘Nikah Mutah’; and ‘Nikah Misyar’ as against the basic rights enshrined under Part III
of the Constitution and also against public order, morality and health.

4. Mumtaz Begum, wife of Shah Alam, filed a petition under Section 125 of Criminal Procedure
Code, claiming maintenance for herself and for her two minor daughters. Her husband gave
divorce during the pendency of case and thereafter she filed an application under Section 5 of the
Muslim Women (Protection of Rights on Divorce) Act and preferred to be governed by the
provisions of Sections 125 to 128 of the Cr. P. C. instead of the provisions of the Act. Learned
Magistrate rejected the application because it was filed by the petitioner without the consent of
her former husband and the High Court in revision affirmed the order of the Ld. Magistrate. She
filed a petition in the Supreme Court in Indiana.

5. The Supreme Court of Indiana declared that the practice of instantaneous Triple Talaq or
Talaq -e- Biddat. is unconstitutional. JANANI filed a writ petition in the Supreme Court to
declare following practices as unconstitutional and violations of CEDAW:-

a) Muslim Personal Law which enables a Muslim male to give unilateral Talaq to his
wife without her consent, offending Articles 13, 14 and 15 of the Constitution.
b) Provisions of Sunni and Shia laws of inheritence which discriminate against females in
their share as compared to the share of males of the same status and discriminating
against females only on the ground of sex.
c) Muslim Personal Law which doesn’t enable a Muslim women to be natural guardian as
void, offending Articles 14 and 15 of the Constitution.

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STATEMENT OF ISSUES

1. THAT THE PETITIONS ARE NOT MAINTAINABLE UNDER ARTICLE 32.

2. THAT THE CONVERSION AND MARRIAGE OF HAMIDA IS VOID.
3. THAT THE PRACTICES OF POLYGAMY; NIKAH HALALA; NIKAH MUTTAH AND NIKAH
MISYAR ARE CONSTITUTIONAL AND NOT AGAINST THE PUBLIC ORDER, MORALITY AND
HEALTH.

4. THAT CONTENTION OF SECTION 5 OF THE MUSLIM WOMEN (PROTECTION OF RIGHT ON

DIVORCE) ACT, 1986 IS CONSTITUTIONAL.

5. THAT THE PRACTICES UNDER MUSLIM PERSONAL LAW ARE CONSTITUTIONAL.

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SUMMARY OF ARGUMENTS

[1] THAT THE WRIT PETITIONS ARE NOT MAINTAINABLE UNDER ARTICLE 32 OF CONSTITUTION
OF INDIANA.

It is humbly submitted by the Counsels before the Hon’ble Supreme Court that instant writs are
not maintainable as Article 32 of the Constitution of Indiana provides remedy against violation
of Part III of the Constitution of Indiana. It is further submitted that in the instant cases, there has
been no such violation of fundamental rights of the petitioners under Part III of the Constitution
of Indiana.

[2] THAT THE CONVERSION AND MARRIAGE OF HAMIDA IS VOID.

It is humbly submitted by the Counsels before the Hon’ble Supreme Court that as per majority
act Hamida is minor and is not eligible for the conversion and she got married with Aslam in act
of Love jihad. It is further submitted that the conversion and marriage of Hamida is void.

[3] THAT THE PRACTICES OF POLYGAMY; NIKAH HALALA ; NIKAH MUTTAH AND NIKAH MISYAR

ARE CONSTITUTIONAL AND NOT AGAINST THE PUBLIC ORDER, MORALITY AND HEALTH.

It is humbly submitted by the Counsels before the Hon’ble Supreme Court that Polygamy is
permissive in Islam. It is a fundamental right of Muslim, it cannot be said that any provision of
law violate the fundamental rights. Niakh Halala provides an opportunity to marry another
person as per will. Nikah Mutah provides opportunity to both the parties to right to choose the
partner and understand the consequences of marriage with their free will. Nikah Misyar is
solving the problems of unmarried women, especially spinsters, divorcees and widows by
providing them status in the society for survival. It is further submitted that the practices of
polygamy; Niakh Halala; Nikah Mutah and Nikah Misyar are constitutional and not against the
public order, morality and health.

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[4] THAT SECTION 5 OF THE MUSLIM WOMEN (PROTECTION OF RIGHT ON DIVORCE) ACT, 1986
IS CONSTITUTIONAL.

It is humbly submitted by the Counsels before the Hon’ble Supreme Court that Section 5 of the
Muslim women (protection of right on divorce) act, 1986 provides an option to govern the
application of maintenance under Sec.125 to 128 of Cr.P.C. It provides right to women for claim
maintenance outside the personal law. It is further submitted that section 5 of the Muslim women
(protection of right on divorce) Act, 1986 is constitutional.

[5] THAT THE PRACTICES UNDER MUSLIM PERSONAL LAW ARE CONSTITUTIONAL.

It is humbly submitted by the Counsels before the Hon’ble Supreme Court that Personal law
represents matters of faith continued for centuries having a direct relationship to the faith of the
community representing a religious denomination. It is further submitted that the practices
perform under the Muslim personal law are constitutionally valid.

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ARRRGUMEENT ADVANCED

MOST HUMBLY SUBMITTED THAT:-

[1] THAT THE WRIT PETITIONS ARE NOT MAINTAINABLE.

[¶1] The Counsel humbly submits that the sole object of Article 32 is the enforcement of the
fundamental rights guaranteed by the constitution. Whatever other remedies may be open to a
person aggrieved, they have no right to complain under Article 32 where no “fundamental’ right
has been infringed, 1 and infringement of fundamental rights cannot be founded on remote or
speculative ground.2 It follows that no question other than relating to a fundamental right will be
determined in a proceeding under Article 32, 3 including interlocutory relief. 4 A writ under
Article 32 would not lie for enforcement of personal laws; it has its own ambit beyond the
Constitution. It is humbly submitted by the Counsels that there is no violation of fundamental
rights [1.1], secondly that the stated writ petitions cannot be entertained by this Supreme Court
of Indiana as alternate relief has not been exhausted [1.2].

[1.1] That there is no violation of fundamental right.

[¶2] It is humbly submitted that no action lies in the Supreme Court under Art. 32 unless there is
an infringement of a Fundamental Right.5 The petitioner will not be entitled to relief under this
Article, unless they establish that their fundamental right has been violated or imminently
threatened. The right guaranteed by Article 32 is one of the highly cherished rights conferred by
the Constitution; the purpose for which that right can be enforced is stated in the very article
which confers that right. The violation of a fundamental right is the sine qua non of the exercise
1
Haji Esmail v. Competent Officer, A.I.R. 1967 S.C. 1244.
2
Baldev Singh Gandhi v. State of Punjab, (2002) 3 S.C.C. 667, 674 : A.I.R. 2002 S.C. 1124.
3
DM Wayanad Institute of Medical Sciences v. Union of India and Another, W.P.(C) No. 441 Of 2015.
4
Dr. S.K. Awasthi Kataria, Law relating to protection of Human Rights, SHODHGANGA (Mar. 18 2019, 03:08
PM) http://shodhganga.inflibnet.ac.in/bitstream/10603/67715/9/09_chapter%203.pdf.
5
Andhra Industrial Works v. Chief Controller of Imports, A.I.R. 1974 S.C. 1532.

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of the right conferred by Article 32. 6 In this regard the counsel here submits that the fundamental
right of Hamida was not violated [1.1.1],that the practices of Polygamy, Nikah Halala, Nikah
Mutah and Nikah Misyar do not violate fundamental rights[1.1.2], there has been no violation of
fundamental rights of Mumtaz Begum[1.1.3]and that the Supreme Court of Indiana is not the
competent court for JANANI’s contention [1.1.4].

[1.1.1]That the fundamental right of Hamida was not violated.

[¶3] When a person acquires a locus standi under Art 32, she has to have a personal or individual
right which was violated or threatened to be violated. 7 In the present case Hamida a 17 years old
minor girl used to visit mosque after getting heavily influenced. One day she converted to Islam
by taking Shahada in presence of maulana. After two days of conversion she got married with
Aslam. Hence counsels here submit that there was no violation of fundamental rights of the
petitioner as she was minor at the time of conversion. The consent of an underage person
cannot be treated as valid. Her marriage is also to be void as this can be a case of brainwashing
and love Jihad.

[¶4] In the instant case, the alleged complaint of violation of Right to change of faith 8 and Right
to choice do not falls within the purview of the violation of fundamental rights. Although High
Court of Methi already held that the conversion is to be void as she was minor and marriage is
also held to be void as matter of love jihad. As being a minor she was incapable of thinking
rationally and giving any consent, it can be said that there is no violation of rights.

[1.1.2]That the practices of Polygamy, Nikah Halala, Nikah Mutah and Nikah Misyar do
not violate fundamental rights.

[¶5] It is further submitted that, there was no violation of Fundamental Right regarding the
practices under Muslim Personal law. Polygamy is permissive in Islam; it is a fundamental right
of Muslim to have four wives. As Quran has declared it valid so it cannot be said that any
provision of Constitution involves violation of fundamental rights. It does not offend women
against Article 15 or outside the ambit of it. Nikah Halala is a method through which a divorced

6
Fertilizer Corporation Kamgar v. Union of India and Others, A.I.R. 1981 S.C. 344.
7
Calcutta Gas Co. Ltd. v. State of West Bengal, A.I.R. 1962 S.C. 1044.
8
Shafin Jahan v. Asokan K.M, AIR 2018 SC 343.

2
 1ST N. J. YASASWY NATIONAL MOOT COURT COMPETITION, 2019
woman can marry with her former husband. Halala is permissible under the personal law by the
virtue of Quran. Right to marry9 is guaranteed under Art. 21. Art. 21 provide every individual
right to marry whomsoever he or she likes.

[¶6] Art. 14 guarantee everyone to be treated equally among others. Nikah Mutah is a marriage
for a temporary but fixed period which dissolved ipso facto by the expiry of the term. Husband
and wife both have right to leave each other before the expiration of term. It provides
opportunity to both the parties to right to choose. Nikah Misyar is known as ‘marriage of
convenience’ which can be defined as an official marriage between a man and a woman. Misyar
is in pari materia to valid marriage that is done with the conscience of both the parties.

[¶7] In the instant case, Saleema got valid form of divorce from her two marriages and keep
living with her two children. Although there was not any violation of fundamental rights of
Saleema in respect with her situation but apart from that she moved before the Hon’ble Court
with many other similar situated Muslim women along with JANANI against the practices.
These practices are carried on without any mala fide motives against the women.

[1.1.3] That there has been no violation of fundamental rights of Mumtaz Begum.

[¶8] It is humbly submitted that all religions are governed by their personal laws, established in
the country by law and custom. Muslim woman cannot claim maintenance under Sec.125 of
Cr.P.C. after the passing of act Muslim Women (Protection of Rights on Divorce) Act, 1986.
Sec.5 of the Act provides benefits of maintenance to divorced women with option to be governed
under Sec. 125 to 128 of Cr.P.C. where both the party former husband and divorced women have
to give consent by affidavit.

[¶9] In the instant case, High Court in revision affirmed the order of the Ld. Magistrate where
the application was rejected, filed by the petitioner without the consent of her former husband.
Although after the divorce Mumtaz filed an application under Sec. 5 of the Act. So she had to be
governed as per the provision of Act. Since it was the mandatory to follow the provisions of Sec.
5 but the application was filed against the provision. It does not violate any fundamental right.

9
M. C. Meehta v. Union of India, (1999) 1 SCC 413: AIR 1999 SC 301.

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 1ST N. J. YASASWY NATIONAL MOOT COURT COMPETITION, 2019
[1.1.4] That the Supreme Court of Indiana is not the competent court for JANANI’s
contention.

[¶10] The petitioners along with JANANI are involved in a case having nationwide attraction.
The respondent therefore cannot be held liable for violating the fundamental rights. The actions
of the respondents are justified since Muslim personal laws are based on Quran as per the
customary practices. There was no violation of the fundamental right of any petitioner for which
they may have any right to directly approach to Supreme Court of the Indiana. JANANI and
others should come through the proper channel before the court.

[1.2] That the alternative relief has not been exhausted.

[¶11] The Counsels humbly submit that Court shall not issue a writ in favour of the petitioner
who has an adequate alternative remedy. It is contended that Art 32 should be invoked as a last
resort; after all other alternative remedies have been exhausted. These alternative remedies
should provide an equivalent relief to the infringement of the Fundamental Right of the
petitioners.

[¶12] The alternative remedy is equal and efficacious. The alternative remedy should be equally
convenient, beneficial and effective. It should secure necessary relief and should not be onerous
or burdensome. In S.K. Sinha v. Patna University,10 the petition under Article 32 was denied on
the ground that there existed an equal and efficacious remedy under the University Act.

[¶13] Having submitted that, it is important to view the idea of 'alternative remedies' in practical
light. The Supreme Court has a significantly large backlog of cases. In light of that, it is humbly
submitted that the cases be filtered at the level of State Judiciary. Also, in most situations the
State Judiciary is in a better position to address the issues of infringement of Fundamental Rights
than the Supreme Court. Filing a case in the High Court is also less expensive in terms of overall
costs. The Supreme Court can reject a petition on the grounds that there exists an alternative
remedy and will not grant relief. Only where the petition raises important questions of the
interpretation of statutory provisions or rules which it is in the public interest to decide speedily,
where there is a failure of justice due to a misreading of the provisions of an Act.

10
A.I.R. 1965 Pat. 253.

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 1ST N. J. YASASWY NATIONAL MOOT COURT COMPETITION, 2019
[¶14] The Counsels finally submits that, this Hon’ble full bench has all the powers to refuse to
hear the petitions on grounds of non-maintainability as there is no violation of fundamental rights
and also the alternative remedies has not been exhausted.

[2] THAT THE CONVERSION AND MARRIAGE OF HAMIDA IS VOID.

[¶15] The Democratic Republic of Indiana is a secular country located in South Asia. Indiana
has rich social composition, as many religions have originated in the country and few religions of
foreign origin have also flourished here. The Constitution of Democratic Republic of Indiana
provides for freedom of religion as a fundamental right, to give to its people the freedom of
worship and religion and to outlaw discrimination on the ground of religion. All religions are
governed by their personal laws which are governing marriage, divorce, succession, etc. Here in
the instant petitions it is humbly submitted that the conversion of Hamida is void [2.1] and
marriage of Hamida is void [2.2].

[2.1] That the conversion of Hamida is void.

[¶16] The Counsels humbly submit that every Non-Muslim of sound mind who attained majority
can convert himself/herself as Islam by embrace the method, he/she may go to a mosque, to a
person who is well versed in Islamic theology (Alim), where he/she utters Kalma (Lailaha-ill-
Allah Muham-mad-ur Rasoolullah) before Imam, whereupon he is giving a Muslim name by the
Imam. 11 Hamida has got heavily influence and used to visit mosque frequently. One day she has
converted to Islam. 12

[¶17] According to Black Law dictionary, Minor defines as an infant or person who is under the
age of legal competence. Section 3 of the Indian Majority Act, 1875, a person domiciled in India
who is under the age of eighteen years, is a minor. The consent of an underage victim cannot be
treated as valid. 13 A minor is incapable of thinking rationally and giving any consent. For this
reason, whether it is a civil law or criminal law, the consent of a minor is not treated as valid

11
Aqil Ahmad, Mohammedan Law,101 (20th ed., Prof. Iqbal Al Khan ed., 2016).
12
Moot Proposition, ¶ 2.
13
Anand S Tomer v. State of Kerala B.A.No.2798 of 2018.

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 1ST N. J. YASASWY NATIONAL MOOT COURT COMPETITION, 2019
consent.14 Until a person become major his or her consent should not be taken as valid in any
condition.

[¶18] In the instant case Devi (Hamida) has converted to Islam by taking Shahada but she was
minor at the time of conversion and due to influence she takes this step. As per law she was not
able to give the consent for conversion in Islam. Counsels humbly submit that on the basis of
personal law and constitutional law the conversion of petitioner is void as she was not eligible
for conversion. Thus the conversion of Devi is void as she was minor.

[2.2] That the marriage of Hamida is void.

[¶19] The Counsels humbly submit that Marriage among Muhammadans is not a sacrament but
purely a civil contract. 15 According to Baillie, marriage is a contract for the purpose of
legalizing sexual intercourse and proclaims children. Every Muslim of sound mind who
attended majority can enter into contract of marriage. Art.16 (2) of Universal Declaration of
Human Rights guarantees that Marriage shall be entered into only with the free and full consent
of the intending spouses.

[¶20] Counsels humbly cites the case of Shahan Sha A v. State of Kerla16, where Court opined
that Love Jihad is stated as Muslim boys are directed to pretend love to girls of other religion
and get them converted to Islam. The relationship of trust and confidence presents a very good
opportunity to the person in whom confidence is held to exploit it to his own use. 17 Indeed every
relationship of trust and confidence is a fiduciary relation. 18

[¶21] In this instant case the High court of Methi held that conversion of Hamida is void as she
was minor and her marriage is also to be void as this can be a case of brainwashing and love
Jihad. 19 As the essentials of marriage required free consent of both the parties having sound
mind. Here Hamida gave her consent having the trust on Aslam, which seems consent was given
under undue influence. 20 It can be clearly seen as the matter of love jihad. Firstly she was

14
Anand S Tomer v. State of Kerala B.A.No.2798 of 2018.
15
Abdul Kadhir v. Salima, (1886) 8 All 149.
16
B.A. NOS. 5288 & 5289 OF 2009.
17
Avtar Singh, Contract and Specific Relief,177 (11th ed. , 2013).
18
Subhas Chandra Das Mushib v Ganga Prasad Das Mushib, AIR 1967 SC 878: (1967) 1 SCR 331.
19
Moot Proposition, ¶ 3.
20
The Indian Contract Act, No. 9,Act of Parliament § 16 (1872).

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 1ST N. J. YASASWY NATIONAL MOOT COURT COMPETITION, 2019
influenced to convert in Islam and just after few days she got married with Aslam. Thus the
consent given by Hamida was not free and against the conditions of valid marriage. Thus
marriage is void.

[3.] THAT THE PRACTICES OF POLYGAMY; NIKAH HALALA; NIKAH MUTAH; NIKAH MISYAR
ARE CONSTITUTIONAL AND NOT AGAINST THE PUBLIC ORDER, MORALITY AND HEALTH.

[¶22] Muslim Law in Indiana means “that portion of Islamic Civil Law which is applied to
Muslims as a personal law”. It consists of injunction of Holy Quran. Muslim law is founded
upon ‘Al-Quran’ which is believed by the Muslims to have existed from eternity, subsisting in
the very essence of God. Muslim Law as it exists today is the result of a continuous process of
development 14th century of existence of Islam. 21 The word ‘Islam’ means ‘peace’ and
‘submission’. 22 All the practices under Muslim Personal laws are constitutionally valid as these
are based on custom and law. Further, in this regard it is humbly submitted that the practices of
Polygamy and Nikah Halala are not against the fundamental right.[3.1] and that the practices of
Nikah Mutah and Nikah Misyar are not against public order, morality and health.[3.2].

[3.1] That the practices of Polygamy and Nikah Halala do not violate the
fundamental right.

[¶22] The Constitution of Democratic Republic of Indiana provides for freedom of religion as a
fundamental right to give its people the freedom of worship and religion and to outlaw
discrimination on the ground of religion. All religions are governed by their personal laws.
Further in this regard it is humbly submitted that the Practice of Polygamy is not against the
fundamental right [3.1.1] and that the practice of Nikah Halala is valid as per Quran [3.1.2].

[3.1.1] That the Practice of Polygamy is not against the fundamental right.

[¶23] The Counsels humbly submit that Polygamy is permissive in Islam, it is a fundamental
right of Muslim to have four wives; it cannot be said that any provision of law in favour of

21
Asaf A.A. Fyzee, Outline of Muhammadan Law, 1 (5th ed. Tahir Mahmood ed., 2008).
22
Lily Thomas v. Union of India, AIR 2000 SC 1650.

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 1ST N. J. YASASWY NATIONAL MOOT COURT COMPETITION, 2019
monogamy involves a violation of fundamental rights. 23 Muslim husband has the legal right to
take a second wife even while the first marriage subsists. 24 Muslim Law permits polygamy but
has never encouraged it. Counsels seek to relay on verses of Quran which holds that “If you fear
that you cannot deals fairly with orphan girls, you may marry women of your choice, two or
three or four; but if you fear that you might not able to treat them with equal fairness, then marry
only one”.25

[¶24] Article 14 of Constitution of Indiana guarantees constitutional principle of equality before

law which is inherent in the rule of law. 26 Equality before law is co-relative to the concept of rule
of law for all round evaluation of healthy social order. 27 Counsels humbly cite Dr. Jennings
where he says that, “Equality before law means that equality among equals the law should be
equal for all. 28 In this instant Quran clearly deals with equal treatment along with equal fairness
among wives.

[¶25] The rule of Muslim law which permits polygamy for men but not for women does not
offend against Article 15(1).29 The institution of polygamy would not constitute a discrimination
against members of one sex only on the ground of their sex. 30

[¶26] Article 13 of the Constitution guarantees that all laws in force or to be made must be
consistent with the Provisions of Part III on fundamental Rights 31 and law includes any
Ordinance, Order, Bye-law, Rule, Regulation, Notification, Custom or Usage which has the force
of law in Indiana. 32 The Counsels humbly cite P.E. Mathew v. Union of India, 33 where the
Supreme Court held after careful consideration of the contentions and various provisions of the
Constitution, that personal laws are not included in the expression 'laws in force' used in Article

23
Ratan Lal and Dhiraj Lal, The Indian Penal Code 2716 (32nd ed. V.R Manohar ed., 2013).
24
Itwari vs Smt. Asghari And Ors.,AIR 1960 All 684.
25
See, Quran Al- Nisa IV:3.
26
Vol. I, Durga Das Basu, Shorter Constitution of India 83 (14th ed. Y. V. Chandrachud ed., 2012).
27
Dalmia Cement (Bharat) Ltd. V. Union of India, (1996) 10 SCC 104 (para 18).
28
Uma, Article 14 of Constitution of India, Right to equality of fundamental right (Aug. 27, 2019, 10:14 AM).
http://www.legalservicesindia.com/article/1688/Right-To-Equality--A-Fundamental-Right.html.
29
State of Bombay v. Narasu Appa Mali, AIR 1952 Bom. 84; Sonabai Yeshwant Jadhav v. Bala Govinda Yadav,
AIR 1983 Bom. 156 (para 27).
30
P.E. Mathew v. Union of India, AIR 1999 Ker 345.
31
Distt. Regstrar and Collectr v. Canada Bank, (2005) 1 SCC 496, 518 -19 (para 44): AIR 2005 SC 186.
32
Indian Const. Art. 13(3)(a).
33
AIR 1999 Ker 345.

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 1ST N. J. YASASWY NATIONAL MOOT COURT COMPETITION, 2019
13(1). In the case of Dara Singh v. Republic of India34 it was held that there was no justification
for state interfering in someone’s belief by any means.

[3.1.2]That the practice of Nikah Halala is valid as per Quran.

[¶27] The Counsels seek rely on verses of Quran which states that “And if man finally divorces
his wife, he cannot remarry her until she has married another man. Then if the next husband
divorces her, there will be no blame on either of them if the former husband and wife return to
one another, provided they think that they are keep within the bounds set by God. These are the
bounds prescribed by God, which he makes clear to man of understanding. 35

[¶28] In Islam ‘Halala’ is a term that finds its roots in ‘Halal’ that means to something i.e.,
permissible and therefore lawful. In context of marriage, it means that after the pronouncement
of talaq, the women becomes ‘Haram’ i.e., unlawful and therefore prohibited for the husband. A
divorced woman can only become ‘Halal’ for her husband again after Nikah Halala is
completed.36

[¶29] The Democratic Republic of Indiana is a free and democratic country and once a person
becomes major he or she can marry whomsoever he or she likes as guaranteed under
Art.21,37even if they get divorced they are free to remarry. It is a basic right of a female to be
treated with decency and proper dignity. Niakh Halala provide right to marry38 again to divorced
women, it was declared with bona fide contention to give benefits to women. At present it has
been wrongly interpreted.

[3.2] That the practices of Nikah Mutah and Nikah Misyar are not against public
order, morality and health.

[¶30] It is humbly submitted that in Democratic Republic of Indiana religious diversity and
religious tolerance were both established in the country by law and custom. The certain practices
of Muslim Personal Laws are neither against the constitution nor public order, morality and

34
(2011) 2 SCC 490: AIR 2011 SC 1436: 2011 AIR SCW 606.
35
See, Quran Al- Baqarah II:230.
36
Radhika Iyengar, What is Nikah halala, how it was established and where it stands in modern , (Aug 18, 2019,
3:14AM)https://indianexpress.com/article/what-is/what-is-nikah-halala-how-it-was-established-and-where-it-stands-
in-modern-india-triple-talaq-4618415/.
37
Accord UDHR Art. 16.
38
M. C. Meehta v. Union of India, (1999) 1 SCC 413: AIR 1999 SC 301.

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 1ST N. J. YASASWY NATIONAL MOOT COURT COMPETITION, 2019
health. Further in this regard it is humbly submitted that Nikah Mutah does not degrade the status
of women [3.2.1] and that Nikah Misyar is not defamatory to women [3.2.2]

[3.2.1] That Nikah Mutah does not degrade the status of women.

[¶31] According to Arabic dictionary “Mutah” is defined as ‘enjoyment, pleasure, delight’. Muta
marriage also known as Nikah al-Mutah, a marriage for a temporary but fixed period with a
Muslim female by a male Muslim, after specifying dowar,39 which become a valid contract.40A
Mutah marriage is dissolved ipso facto by the expiry of the term. 41 It is true that it brings
contentment to the woman as well as the man because they are satisfied with their choices, with
which they can share their feelings as well as physical intimacy. 42

[¶32] The Counsel humbly submits that Mutah is not a Marriage at all but just a live-in
arrangement. Counsels humbly cite Professor Fyzee where he states that “Mutah” translates
literally to “pleasure”. In the Shia context, Mutah refers to a “temporary marriage.” A man pays
a woman a sum of money (dower) and he can have sexual relations with her for however long
they agree for the Mutah contract.43

[¶33] Article 14 of Constitution guarantees everyone to be treated equally among others.

Counsels humbly submit that no right of divorce is recognized in Nikah Mutah, but the husband
may at his will put an end to contract of marriage “making a gift of the term” to the wife even
before the expiry of fixed term. 44 If the mutah marriage is not consummated, the woman is
entitled to half the dower.45 The woman has also right to leave their husband before the expiry of
the term, the women is entitled to get proportionate part of the dower.46

39
Sir Dnshaw Fardunji Mulla, Principles of Mahomedan Law, 344 (20th ed. Prof. Iqbal Ali Khan ed. 2013).
40
The Indian Contract Act, No. 9,Act of Parliament, § 10 (1872).
41
Sir Dnshaw Fardunji Mulla, Principles of Mahomedan Law, 345 (20th ed. Prof. Iqbal Ali Khan ed. 2013).
42
Konina Mandal,Concept of marriage among muslims : a study on muta Marriage , U. M. R. I. Pvt Ltd, 297
(2019).
43
Satyoki Koundinya,The Concept of Mutah Marriage: Is it a Social Evil?,(27th Aug.2019, 12:45 PM),
https://www.researchgate.net/publication/228145621_The_Concept_of_Mutah_Marriage_Is_it_a_Social_Evil.
44
Mohamed Abid v. Ludden, (1887) 14 Cal. 276.
45
Mulla, supra, 10.
46
Id.

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 1ST N. J. YASASWY NATIONAL MOOT COURT COMPETITION, 2019
[¶34] Nikah Mutah provides opportunity to both the parties to right to choose47 the partner and
understand the consequences of marriage. It is consensual contract based on temporary marriage
where both the parties give their consent to live together. Thus it does not degrade the status of
women.

[3.2.2] That Nikah Misyar is not defamatory to women.

[¶35] The Counsels humbly submit that Misyar marriage or marriage of convenience can be
defined as an official marriage contract between a man and a woman, with the condition that the
spouses give up several of their rights by their own free will. 48She is entitled to reclaiming them.
She may ask her husband to fulfill all her rights, including that he provide for her financially.
The husband can also demand that she move in with him at his residence. 49

[¶36] Counsels rely upon Islamic Jurisprudence Academy which gave sanction finally to Misyar
marriage which provided that Nikah Misyar meets all requirements of marriage in Islam.50 This
type of marriage arrangement is permissible and valid, and the couple will not be guilty of being
involved in an unlawful illicit relationship. 51 It is contractual based marriage done with the
conscience of both the parties.

[¶37] Counsels humbly cite Abdullah Mani, where he states that Misyar marriage plays its role
in solving the problems of unmarried women in, especially the spinsters, divorcees and widows. 52
It is further submitted that Misyar provides benefit to the women in term of marriage and give
them status in the society for survival. As for its validity, if all the basic requirements for a
standard Islamic marriage are fulfilled, it is valid, keeping in mind that the wife is entitled to
reclaiming her rights that she gave up at the time of marriage whenever she so desires.

47
Indian Const. Art. 21.
48
Muhammad ibn Adam,What is a Nikah Misyar? Is this kind of marriage permitted according to Shari’a?, (Aug.
27th, 2019, 1:33PM ), https://www.daruliftaa.com/node/6159.
49
STATUS OF NIKAH MISYAR (Aug. 28, 2019, 3:33PM ) http://islam.ru/en/content/story/status-nikah-misyar.
50
Dr. Noor Mohammad Osmani, Misyar Marriage between Shari`ah texts, Realities and scholars’ Fatawa’: An
Analysis , IIUC STUDIES 301 (2011).
51
Muhammad ibn Adam,What is a Nikah Misyar? Is this kind of marriage permitted according to Shari’a?, (Aug.
27th, 2019, 1:35PM ), https://www.daruliftaa.com/node/6159.
52
Id.

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 1ST N. J. YASASWY NATIONAL MOOT COURT COMPETITION, 2019

[4]. THAT CONTENTION OF SECTION 5 OF MUSLIM WOMEN (PROTECTION OF RIGHTS ON

DIVORCE) ACT, 1986 IS CONSTITUTIONAL.

[¶38] Indiana has a composition of many religions, few of foreign religion also flourished here.
All religions are governed by their personal laws which governing marriage, divorce, succession
etc. most of the religions were established in the country by law and custom. Muslim Personal
has provided this Act for the benefits of Muslim divorced women in respect to protection of their
rights. Further it is submitted that Divorce Muslim Women cannot apply for maintenance under
Sec. 125 to 128 of Cr.P.C. without the consent of her former husband [4.1]

[4.1] That Divorce Muslim Women cannot apply for maintenance under Sec. 125 to
128 of Cr.P.C. without the consent of her former husband.

[¶39] The Counsels humbly submit that Sec.5 of Muslim Women (Protection of Rights on
Divorce) Act, 1986 provides that the husband and wife would be preferred to be governed by
Sec. 125-128 of the Cr.P.C, if on the date of first hearing of the application under sec 3(2), a
divorce women and her former husband declare, by affidavit or any other declaration in writing,
either jointly and separately.

[¶40] Counsels humbly cite the case of Usman Khan v. Fathimunissa Begum,53where the Court
held that a divorced Muslim woman cannot claim maintenance under Sec.125 of Cr.P.C. from
her former husband after passing the Muslim Women (Protection of Rights on Divorce) Act,
1986. In Hazran v. Abdul Rehman,54 the court held that there is no provision in the Act of 1986
to the effect that “Notwithstanding anything contain in Sec.125 to 128 of Cr.P.C, maintenance of
Muslim women shall be governed by the provision of the Act of 1986.

[¶41] In the instant case, the judgment of High Court affirmed the order of the Learned
Magistrate, which proves that Mumtaz Begum cannot claim maintenance under Sec.125 to 128
of Cr.P.C. without the consent of the former husband. However Sec. 5 regarding the provision of
maintenances needs a declaration from both the parties to be governed by provisions of Cr.P.C.

53
1990 Cr LJ 1364 (AP).
54
1989 Cr. L.J 1519.

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 1ST N. J. YASASWY NATIONAL MOOT COURT COMPETITION, 2019
If the option is not exercise they will not be govern by the provisions of Sec. 125-128 of Cr.P.C.
Thus, the application of Mumtaz has to be governed under Sec. 5 of the Act.

[5] THAT THE PRACTICES UNDER MUSLIM PERSONAL LAWS ARE CONSTITUTIONAL.

[¶42] Personal law represents matters of faith continued for centuries having a direct relationship
to the faith of the community representing a religious denomination. Such matters of faith span
the life of a person with reference to the family and the community to which he or she is a part
of. Muslim Personal laws are based on law and custom. Constitution provides every individual
basic fundamental right nexus to personal law. Further it is submitted that the unilateral talaq is
valid under Muslim Personal Law [5.1], that the provisions of inheritance under Sunni and Shia
Laws are constitutionally valid [5.2] and that only the Muslim men are recognized to be natural
guardian, as valid under Muslim Personal Law [5.3].

[5.1] That the unilateral talaq is valid under Muslim Personal Law.

[¶43] The Constitution of India recognizes ‘personal law’ of all religious denominations being
communities and protects their faith by making them immune from challenge under Part III of
the Constitution. In this regard it is further submitted that the unilateral Talaq i.e., Talaq-e-biddat
is proper form of Talaq [5.1.1] and that the unilateral Talaq i.e., Talaq-e-biddat cannot be tested
on the grounds of Constitution [5.1.2].

[5.1.1] That the unilateral Talaq i.e., Talaq-e-biddat is proper form of Talaq.

[¶44] According to Black's Law Dictionary, “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 and to the law of the individual's nationality.

[¶45] The Counsels humbly submit that the term Talaq means dissolution of marriage or a
release from the marriage tie, immediately or eventually. The pronouncement of Talaq in the
presence of the wife or when the knowledge of such pronouncement comes to know to the
knowledge of wife, results in the dissolution of the marriage. 55 Quran permits divorce partly

55
Ghansi Bibi v. Ghulam Dastagir, (1968) 1 MYS. 566.

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because of some countenance to the custom and partly to enable men get rid of an odious
union.56
[¶46] The procedure of Triple Talaq, which has the immediate consequence of finality, is valid.
Triple Talaq is a part of the faith of Hanafi school. 57 Section 2 of the Muslim Personal Law
abrogates all custom and usage which is contrary to Mahomedan law in those matters which are
enumerated in that section and applies to Muslims their strict Muslim Personal Law.
[¶47] It is further submit that many women belonging to the Hanafi School who accept Triple
Talaq as a valid form of divorce cannot be as a matter of law is denied the consequences
thereof. 58 Such belief of women should not be interfered with and cannot be set at naught
through a judicial pronouncement, the consequence of that would be what as a matter of faith is
valid in law with legal consequences within the faith will create societal complications to such
women. 59 It is, therefore, clear that Triple Talaq for the Hanafis, a religious denomination is a
matter of faith. Thus it is proper form of talaq.
[5.1.2] That the unilateral Talaq i.e., Talaq-e-biddat cannot be tested on the grounds of
Constitution.

[¶48] The Counsels humbly cite the case of State of Bombay v. Narasu Appa Mali,60 where the
Court held that the definition of ‘law’ and the expression ‘laws in force’ thus far interpreted by
this Court under Article 13 of the Constitution. If read along with Article 372 and Entry 5 of List
III, it is clear that ‘personal laws’ are not subject to challenge under Part III of the Constitution.

[¶50] Article 372 of the Constitution which mandates, that all laws in force, in the territory of
India immediately before the commencement of the Constitution, “shall” continue in force until
altered or repealed or amended by a competent legislature or other competent authority. In Riju
Prasad Sarma v. State of Assam, 61 Court opined that Art. 13(1) applies only to such pre-
constitution laws including customs which are inconsistent with the provisions of Part III of the
Constitution and not to such religious customs and personal laws which are protected by the
fundamental rights such as Articles 25 and 26.

56
Sir Dnshaw Fardunji Mulla, Principles of Mahomedan Law,396 (20th ed. Prof. Iqbal Ali Khan ed. 2013).
57
Mst. Saleha Bi v. Sheiks Gulla, AIR 1973 M.P. 207.
58
Indira Jaising, The issues at stake in the Triple Talaq case, (Aug 17, 2019,4:23PM )
https://www.lawyerscollective.org/the-invisible-lawyer/issues-stake-triple-talaq-case.
59
Id.
60
AIR 1952 Bom 84.
61
(2015) 9 SCC 461.

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[¶51] Counsels humbly submit that the very presence of Art. 44 in the Constitution recognizes
the existence of separate personal laws, the scheme of the Constitution, therefore, seems to be to
leave personal law unaffected except where specific provision is made with regard to it and leave
it to the Legislatures in future to modify and improve it and ultimately to put on the statute book
a common and uniform Code.62

[5.2] That the provisions of inheritance under Sunni and Shia Laws are
Constitutionally valid.

[¶52] Muslim Personal laws are purely based on Quran and all practices under the religion is
also governed as per Quran. Quran has provided many provisions of graciousness for male and
female both. Laws of inheritance are one of those provisions which provide benevolence to
Muslims. Apart from that women are blessed with other alternative provisions through which
they can acquire property. Further in this regard it is humbly submitted that the Law of
Inheritance is recognized by the Quran itself [5.2.1], that the Muslim women are entitled to Mahr
[5.2.2] and that the Muslim women can also inherit property through will and gift [5.2.3].

[5.2.1] That the Law of Inheritance is recognized by the Quran itself.

[¶53] The Counsels humbly cite the verses of Quran; concerning your children, God enjoins you
that a male shall receive a share equivalent to that of two females. But if there are more than two
females then their shares is two-thirds of the inheritance. If there is only one, she will receive the
half.63 You will inherit half of what your wives leave, provided they have left no children. But if
they leave children then you inherit a quarter of what they leave, after payment of any bequests
they may have made or any debts they may have incurred. 64 These verses of Quran show that the
concept of inheritance is itself given by Quran and accepted by people at large.

[5.2.2] That the Muslim women are entitled to Mahr.

[¶54] The Counsels humbly submit that Mahr is the total sum of money or property that a wife is
entitled to receive from her husband in consideration of marriage. 65 There are two types of mahr:

62
State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84.
63
See Quran Al- Nisa IV:11.
64
See Quran Al- Nisa IV:12.
65
Smt. Nasra Begum v. Rizwan Ali, AIR 1980 All 119.

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prompt and deferred. In the former one, the amount is given to the wife immediately after
marriage and in the later, the amount is given to the wife when her marriage has ended either
upon the death of her husband or by divorce.66

[¶55] Mahr is basically a gift which becomes due from a Muslim husband to his wife on
marriage as a token of respect symbolizing his sincerity and love for her. 67 Further, the grant of
absolute ownership of the mahr property to the Muslim wife shows the revolutionary measure
adopted by Muslim Personal Law to vest women with the property rights to ensure them an
equitable marital status.68

[¶56] The Counsels humbly cite the case of Bai Tahira v. Ali Hussein,69 the SC in the case held
that the payment of trifling amounts of mahr to a divorced Muslim woman is no substitute for the
maintenance. Mahr is to be given to the wife by husband at the time of divorce which is
completely different from the concept of maintenance. In Mohammad Tusabuddin v. Yasin
Begum,70 it was held that the claim of a widow for dower was in the nature of a secured debt.

[5.2.3] That the Muslim women can also inherit property through will and gift.

[¶57] The Counsels humbly submit that a Muslim cannot give away more than one-third of
his/her total property through a will. Under the Mahomedan law, no writing is required to make a
will valid, and no particular form, even of verbal declaration is necessary as long as the intention
of the testator is sufficiently ascertained. 71 A Mahomedan will, though in writing, does not
require to be signed;72 nor, even if signed, does it require attestation73 because of the fact that a

66
Sir Dnshaw Fardunji Mulla, Principles of Mahomedan Law, 374 (20th ed. Prof. Iqbal Ali Khan ed. 2013);
Mahadeo Lal v. Bidi Maniram, AIR 1933 Pat.281.
67
Abdul Kadir v. Salima, ILR(1886) 8 All 149.
68
Anita Yadav, Property rights of Indian Muslim Women, Rights of Muslim Women: An Analysis of Indian
Muslim Personal Law, (Aug.19 ,2019, 9:45AM) https://www.researchgate.net/publication/274702838- Rights _ of _
Muslim _women_An_Analysis_of_Indian_Muslim_personal_Law.
69
AIR 1979 SC 362.
70
17 DLR. 224.
71
Mahomed Altaf v. Ahmed Buksh (1876) 25 W.R. 121 PC.
72
Aulia Bibi v. Alauddin (1906) 28 All. 715.
73
In re Aba Satar (1905)7 Bom. L.R. 558; Sarabai v. Mahomed (1919) 43 Bom. 641, 49 I.C. 637; Ramjilal v.
Ahmed Ali (1952) A. Madhya Bharat 56; Ibadat Ali v. Baldia Co-operative Bank (1968) 11 A.L.T 124.

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Mahomedan will does not require to be in writing at all. In circumstances where there are no
heirs in the estate as prescribed by the law, the wife may inherit a greater amount by will. 74

[¶58] The Counsels humbly submit that under the Muslim Law, any type of property may be
given as a gift. Gifts are called Hiba under Muslim law. Gift is the transfer of movable or
immovable property with immediate effect and without consideration by one person called the
donor to another person called the done.75 The acceptance of the same by one himself or by
someone authorized on his behalf, provided that making the gift must totally renounce all his title
and rights in the property gifted away of his independent free will. 76

[¶59] Counsels humbly cite the case of Abdul v. Ahmed77 where the Court held that a hiba is a
voluntary gift without any consideration of property or the substance of thing by one person to
another so as to constitute the done the proprietor of the subject-matter of the gift. Counsels
humbly submit that for a gift to be valid, a declaration of wish to make a gift must be made
which should be accepted by receiver. 78 There must be in every gift a bona fide intention on the
part of the donor to transfer the property from donor to donee.79

[¶60] It is further submit that apart from the laws of inheritance Muslim women are pleased with
certain alternative sources to inherit the share in property and have advantages from the sources.
They are not facing any kind of biasness or discrimination in their share as compared to the share
of males of the same status. Thus the provisions of inheritance under Sunni and Shia Laws are
constitutionally valid.

74
Gunjan Piplani, Property rights of a Mother in Islam, Examining A Muslim Woman’s Right To Property, (Aug.
23, 2019, 9:30 AM) , https://www.makaan.com/iq/legal-taxes-laws/examining-a-muslim-womans-right-to-property.
75
P. Kuunheema Umma v. Aayssa Umma, AIR 1981 Ker. 176.
76
Kruthika, Donative intention (motive) and consideration, Concept of Gift under Muslim Law, (Aug. 28, 2019,
11:40 AM) http://www.legalserviceindia.com/articles/transfer.htm.
77
(1881) 8 IA 25.
78
Gunjan Piplani, Property rights of a Mother in Islam, Examining A Muslim Woman’s Right To Property, (Aug.
23, 2019, 9:30 AM) , https://www.makaan.com/iq/legal-taxes-laws/examining-a-muslim-womans-right-to-property
79
Sultan Miya v. Ajibakhatoon Bibi, (1932) 59 Cal. 557: 138 I.C. 733,; (32) A.C. 497.

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[5.3] That the Muslim men are recognized to be natural guardian, as valid under
Muslim Personal Law.

[¶61] The Counsels humbly submit that a father cannot be deprived of the natural guardianship
of his children unless he has been found unfit. 80 The father’s supervision over the child continues
in spite of the child being under the care of female relations, for it is the father who has to
maintain the child.81Where the father of a Muslim minor girl was living and there was nothing to
show that he was unfit to be guardian that child, he was entitled to retain the custody of the
child82. In this regard, it is humbly submitted that that only father is recognized as the natural
guardian [5.3.1] and that the welfare of the child lies with the father [5.3.2].

[5.3.1] That only father is recognized as the natural guardian.

[¶62] The Counsels humbly submit that only father is the natural guardian of his child but in the
absence of father, the father’s executor may also act as legal guardian. 83 Executor means a
person to whom the execution of the last will of a deceased person is, by the testator’s
appointment, confided. 84 In the absence of father or his executor, paternal grandfather or paternal
grandfather’s executor acts as a natural or legal guardian. 85 If all of the above mentioned persons
are absent, nobody else is recognized as the natural or legal guardian. 86 The Muslim Personal law
doesn’t enable a Muslim woman to be natural guardian.

[¶63] The Counsels humbly submit that father is recognized as the natural guardian of his child
under all the schools of Muslim Law. The father’s right to act as guardian of the minor is an
independent right and is given to him under the substantive law of Islam. 87

[¶64] It is further submit that under the Muslim Law, the mother is entitled only to the custody
of her minor child up to a certain age according to the sex of the child but she is not the natural

80
The Guardians and Wards Act, No. 8,Act of Parliament, § 19 (1890).
81
Asaf A.A. Fyzee, Outline of Muhammadan Law, 161 (5th ed. Tahir Mahmood ed., 2008).
82
Rafiq v. Smt. Bashiran (1963) A. Raj. 239.
83
Ahad Ahmad Siddiqi, Islamic Concept, Law Of Appointment Of Guardian Under The Guardian & Wards Act
1890 (Part–I), (Aug 15, 2019, 5:10PM) http://courtingthelaw.com/2017/12/07/commentary/law-of-appointment-of-
guardian-under-the-guardian-wards-act-1890-part-i/.
84
The Indian Succession Act, No. 39, Act of Parliament, § 2(c) (1925).
85
Sir Dnshaw Fardunji Mulla, Principles of Mahomedan Law, 442 (20th ed. Prof. Iqbal Ali Khan ed. 2013).
86
Sir Dnshaw Fardunji Mulla, Principles of Mahomedan Law, 443 (20th ed. Prof. Iqbal Ali Khan ed. 2013).
87
Romit Agrawal & Gorang Vashistha, Natural Guardians, Guardianship Under Hindu, Muslim, Christian And Parsi
Laws, (Aug 16, 2019, 1:00PM) http://www.legalserviceindia.com/article/l35-Guardianship.html.

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guardian, the father alone, or if he is dead, his executor (under Sunni Law) is the legal
guardian.88

[¶65] The right of custody by the mother continues though she is divorced by the father of the
child89, unless she marries a second husband in whom the custody belongs to the father 90.It is
humbly cited that in the case of Mostt. Bibi v. Saira Khatoon v. Mostt Bibi Shahidan Khatoon91,
neither the mother nor the grandmother can be the guardian of the property of the minor child.

[5.3.2] That the welfare of the child lies with the father.

[¶66] The Counsels humbly submit that under Muslim law, the father is entitled to the custody of
a son over 7 years of age. The idea of welfare of the child is best explained by the fact that
though the rules of Mahomedan Law have to be taken into consideration but the main question to
be considered that it would be conducive to the child’s welfare. 92

[¶67] It is also found that the welfare of the children did not lie in favour of residing with their
mother although they also expressed their desire to live with her. 93 The matter of the fact is that
they were not of an age when they could make an intelligent preference. Therefore the court
awarded the custody of the child to the father. 94

[¶68] Counsels humbly cited that in the case of Poolakkal Ajisakutty v. Parat Abdul Samad,95 the
court held that welfare of the child is of paramount consideration. By giving due respect to the
sentiments expressed by the grandmother, the Court was of the view, it is for the welfare of the
child that the child be with the father. Thus Muslim men are recognized to be natural guardian.

88
Imambandi Vs. Mutsaddi (1918) 45 IA 73.
89
Zarabibi v. Abdul Rezzak (1910) 12 Bom.L.R. 891.8 I.C. 618; Emperor v. Ayshabai (1904) 6 Bom.L.R.536;
Allah Rakhi v. Karam Illahi (1933) 14 Lah. 770, 147 I.C. 123, (1933) A.L. 969; Mt. Haidri v. Jawad Ali (1934) All.
L.J. 399, 150 I.C. 149, (1934) A.A. 722.
90
Ulfat Bibi v. Bafati (1927)49 All. 773, 102 I.C. 103, (1927) A.A. 581; Abdul Sattar Husen v. Mrs Shahina A.I.R.
1999 Bom 25.
91
(1978) B.LJ.R. 420.
92
Mt. Haidri v. Jawad Ali (1934) All L.J. 399, 150 I.C. 149, (1934) A.A. 722; Sakina Begum v. Malka Ara Begum
(1948) A.A. 198; Hasan Bhat v. G.M. Bhat (1961) A. J.&K. 5; Mohd. Amin v. Ateeka Banu, (1963) A. J&K. 32.
93
Sir Dnshaw Fardunji Mulla, Principles of Mahomedan Law, 437 (20th ed. Prof. Iqbal Ali Khan ed. 2013).
94
Farzanabi v. Ayub Dadamiya AIR 1989 Bom 357.
95
AIR 2005 Ker. 68.

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PRAYEER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly prayed that this Hon’ble Court may be pleased to adjudge and declare:

1. That the writs are not maintainable.

2. That the conversion and marriage is void.
3. That the practice of polygamy; Nikah Halala; Nikah Mutah and Nikah Misyar are
Constitutional.
4. That the contestation of Sec 5 of Muslim Women (protection of Right on Divorce.) Act is
constitutional.
5. That the practice of Talaq e biddat of Muslim personal law is constitutional.
6. That the laws of inheritance and laws of guardianship of Muslim personal law are
constitutional.

AND PASS ANY OTHER ORDER OR DIRECTION THAT THIS HON’BLE COURT MAY DEEM FIT
IN THE INTERESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE.

ALL OF WHICH IS HUMBLY PRAYED,

R09

COUNSELS FOR THE RESPONDENT.

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