APPELLANT INTRA CLASS MOOT COURT TC-B25

INTRA CLASS MOOT COURT BALLB 2021 GROUP A

GROUP B

IN THE HON’BLE SUPREME COURT OF HINDUSTAN

INTRA CLASS MOOT COURT BALLB 2021

IN THE MATTER OF
GROUP B
MR . RIO
IN THE HON’BLE SUPREME COURT OF HINDUSTAN
(APPELLANT)
In the matter of

MR.RIO
VERSUS
(Appellant)
MS. TOKYO

(RESPONDENT
VERSUS )

MS.TOKYO
(Respondent) OF HINDUSTAN 1949
APPEAL U/S 133 OF CONSTITUTION

APPEAL FILED UNDER ARTICLE 133 OF THE CONSTITUTION OF HINDUSTAN

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS.....................................................................................................

I INDEX OF AUTHORITIES.................................................................................................... Iii

I. CASES ...................................................................................................................... iii

II. STATUTES ...............................................................................................................vi

III. CONSTITUTIONAL PROVISIONS ......................................................................... vi

IV.ARTICLES............................................................................................................ ..... vi

V. BOOKS ..................................................................................................................... vii

VI. REPORTS................................................................................................................. vii

VII. CONSTITUTIONAL ASSEMBY DEBATES .........................................................

vii STATEMENT OF JURISDICTION......................................................................................

Viii STATEMENT OF FACTS .......................................................................................................

IX ISSUE RAISED
……………………………………………………………………………………………………………
….

X STATEMENT OF ISSUES ......................................................................................................

xi SUMMARY OF ARGUMENTS ..................................................................................

Xii ARGUMENTS ADVANCED...................................................................................................

Xiii ISSUE I WHETHER THE HUSBAND HAS BEEN GUILTY OG CRUEILTY ?

…………………………………….

Muslim marriage act 1939 no where mentioned that the that not giving a child if the
man is not impotence is consider as a cruelty .

Xiv ISSUE II WHETHER POLYGAMY IS UNCONSSTITUTIONAL FOR MUSLIMS OR NOT ?

as per the constitution of hindustan , polygamy is not unconstitutional for muslims

because article 25 gives permission to follw their religion

PRAYER.....................................................................................................................................

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LIST OF ABBRIVATIONS

Pg. Page
ORS OTHERS
OA Original Application

REP. Represented

SCALE Supreme Court Almanac

SCC Supreme Court Cases

SC Supreme Court

ST Cited authority develops a Question

analogous to discussion in the text.
Supra Mentioned before
Suppl. Supplementary
T.L.R Times Law Reports

UOI Union of India

U/ Under

V. Versus

VOL. Volume

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INDEX OF AUTHORITIES

I CASE LAWS

1. Anil Bharadwaj v Nimlesh Bharadwaj (AIR 1987 Del 111)

2. IN AHMEDABAD WOMEN ACTION GROUP (1997),
3. JULEKHABI V. UNION OF INDIA
4. THE STATE OF BOMBAY V. NAEASA APPA MALI (1951 )
5. KRISHNA SINGH V. MATHURA AHIR
6. SHAHULAMEEDU V. SUBAIDABEEVI

II. STATUTES
1. DISSOLUTION OF MUSLIM MARRIAGE ACT 1939 ,
2. THE CODE OF CRIMINAL PROCEDURE , 1973
3. MUSLIM MARRIAGE ACT 1939
4. SHARIAT ACT 1939
5. THE CONSTITUTION OF HINDUSTAN 1949

III .BOOKS REFERRED

PRINCIPAL PF MOHMADON LAW BY MULLA
MOHAMMDAN LAW BY QURRESI
THE CONSTITUTION OF INDIA BY M.P JAIN

III . REPORTS
TIMES OF INDIA REPORT
THE HINDU
LAW COMMISSION OF INDIA

IV .WEB SOURCES
www.manupatrafast.com
www.scconline.com
http://www.ejusticeindia.com
www.indiankanoon.com

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STATEMENT OF JURISDICTION
I.TRANSFER PETITION NO. _____/20—
W.P. ( ) NO. _____/20--
THE APPELLANTS HAVE INVOKED THE JURISDICTION OF THE HON’BLE
SUPREME COURT TO HEAR THE INSTANT APPEALS BY VIRTUE OF:

ARTICLE 133 OF CONSTITUTION OF HINDUSTAN , 1949 :

THE APPELLATE JURISDICTION OF THE SUPREME COURT UNDER THE

CONSTITUTION .

ARTICLE 133 - Appellate jurisdiction of Supreme Court in appeals from High Courts in
regard to civil matters

(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a
civil proceeding of a High Court in the territory of India if the High Court certifies under
Article 134A

Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil
matters
(a) that the case involves a substantial question of law of general importance

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STATEMENTS OF FACTS
I. Hindustan is a sovereign, secular, democratic republic, having its own written
constitution, which guarantees some fundamental rights to all its citizens. right to
equality before the law and protection against discrimination on the grounds of
religion or sex are part of the rights to equality guaranteed by the constitution.
II. Ms. Lisbon and Mr. Rio, both Muslims, got married in 2006 as per the Muslim
personal law. Although they are leading a happy married life, they could not produce
children, despite appropriate medical treatment. On the advice of his parent's parents,
he married Ms. Tokyo in 2014 with the consent of Ms. Lisbon. Their marriage was
performed as per Islamic customs.
III. Her husband, Mr. Rio, was happy with the child and he decided not to have any more
children from both the wives. Ms. Tokyo was not happy with his decision and she
insisted on having her own baby. Later, Ms. Lisbon gave birth to a baby boy. Mr. Rio
and Ms. Tokyo were married to each other in accordance with the rules of Islam, but
he refused to have children through her. His wife filed for divorce under section 2(vii)
(f) of the Dissolution of the Muslim Marriage Act 1939.
IV. She argued that polygamy violated her right to equality before the law and amounted
to discrimination on the ground of sex and religion. Ms. Tokyo filed an appeal in the
High Court against the decision of the Family Court. Ms. filed an appeal in the High
Court and challenged the decision of the Family Court on the ground that refusal by
her husband to beget children through her should be considered as valid ground for
divorce, because it also amounted to mental cruelty.
V. The High Court has observed that the Family Court was wrong in rejecting the
petition for divorce. The High Court also accepted her contention that the system of
polygamy violated the fundamental rights of women. Further, the High Court has also
accepted her contention that the system of polygamy violated the Fundamental Rights
and therefore declared her marriage as null and void.
VI. Mr. Rio filed an appeal before the Supreme Court of Hindustan. He pleaded that he
had not caused any mental cruelty to his second wife and challenged the decision of
the High Court which declared polygamy as unconstitutional.

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ISSUE RAISED

ISSUE I:WHETHER THE HUSBAND HAS BEEN GUILTY OF

CRUELTY ?

ISSUE II : WHETHER POLYGAMY IS UNCONSSTITUTIONAL FOR

MUSLIMS OR NOT ?

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SUMMARY OF ARGUMENTS

ISSUE I :WHETHER THE HUSBAND HAS BEEN GUILTY OF CRUELTY .

That the appellant humbly submits before this hon’ble court that as per the Muslims personal
law ( SARIAT act 1937 ) marry more than once with the consent of first wife is not a
polygamy neither cruelty . as per instance of cruelty given in the provision of the dissolution
of Muslim marriage act 1939 , include habitually assaulting the wife making her life
miserable by physical ill-treatment or by conducting short of that no where mentioned that
the that not giving a child if the man is not impotence is consider as a cruelty .

ISSUE II : WHETHER POLYGAMY IS UNCONSSTITUTIONAL FOR

MUSLIMS .

The appellant humbly submits before this hon’ble court That in Muslims the polygamy is
neither mandatory ,nor encouraged, but merely permitted .

THE VERSE IV OF QURAN SAYS : that if you fear that you shall not able to deal justly
with the orphans, marry women of your choice 2,3,or 4 ,but if you fear that you shall not be
able to deal justly with them than marry only one .

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ARGUMENTS IN ADVANCE

1. WHETHER THE HUSBAND HAS BEEN GUILTY OF CRUELTY ?

❖ Cruelity has different grounds it can be physical , can be mental but when a
husband is fulfilling all the desires of a married life not even impotent , he is
carrying and a very dedicated husband and providing all the maintenance to
her newly married wife , as he has a new born son from ms. lisbon and was
happily settled for his family and he was satisfied with that but not having a
child from another wife is not a ground of cruelity as he was treating as same
as ms. lisbon and providing all the life standards as she deserves from the
family standard, mr. rio never denied for having physical consensual
relationship but not providing a kid can’t be a ground of cruelity not even
mentally nor on ant other grounds , ms. tokya were given the fair treatment as
being the wife and as well as the reputation and fair maintenance and affection
from the husband.
❖ Instance of cruelty given in the arrangement of the Dissolution of Muslim
Marriage Act 1939, incorporate constantly attacking the spouse, making her
life hopeless by actual sick therapy or by a direct shy of that, partner with lady
of underhanded notoriety or having a scandalous existence or keeping her
from practicing her privileges in that, discouraging her in the recognition of
her strict calling or practice and in the event of polygamy getting her unjustly
opposite the Koranic order.

❖ In Islamic law, the concept of cruelty (zirar) isn't restricted. The cruelty
arrangement is to be deciphered in the light of the Prophet's appeals that ladies
are pretty much as delicate as glasses (qawarir) and he is the best man who is
caring to his better half. It is worth referenced here that under Muslim law
merciless nature is a preclusion for qualification to wed.

❖ What amounts to cruelty against husband? Though it is the duty of the

court to decide the case based on facts and circumstances but what amounts to
cruelty is an important aspect as misuse of Laws by the wife against husband

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in society is growing day by day and most apparently some Indian Urban
educated women have turned the tables and are using these laws as weapon to
unleash personal vendetta on their husbands and innocent relatives and there
are certain grounds on which cruelty against husband can be proved:- one of
the ground is that Wife refusing to have sex with husband without any
sufficient reasons which can be considered as a ground of cruelty and husband
can file a divorce petition. Anil Bharadwaj v Nimlesh Bharadwaj (AIR
1987 Del 111) According to this case a wife who refuses to have sexual
intercourse with the husband without giving any reason was proved as
sufficient ground which amounts to cruelty against husband.

❖ What If husband MR RIO is not fulfilled the demand of another child as MR

. RIO belongs to the middle class family and he is not able to provide a
luxurious life to 2nd child that’s why he do not wants a 2nd child from MS.
TOKYO as he is not capable to provide the second child his /her basic rights
like right to education . IS IT fair with the second child ?

❖ as per the my client view this not ground to cruelty as he is not capable to
upbringing the child and cant afford the 2nd child in this materialistic /
expensive global world .

2. WHETHER POLYGAMY IS UNCONSSTITUTIONAL FOR MUSLIMS OR NOT

?

Since they are consent to permit their sister to have intercourse with different guys throughout
the timeframe .Take a gander at the legislative issues in Islam,

Prophet is saying that a Muslim male X1 can wed various lady and at a similar he is saying to
his sister Y1 that She can wed numerous guys. It is to some degree lady trading. Exceptionally
sickening Who the damnation this prophet was? also, why he had meddle normal relationship?
He had broken the relationship of Husband and Wife and Brother and Sister. He simply needed
to acquire devotees. Regardless, how family will endure. He is offering 72 virgin in paradise
even a spouse Indeed. Muslim relationships fall under the Muslim Law Board that is a watered
down rendition of Sharia and as per that, Muslims can have two spouses. Numerous a Hindus

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have changed over to Islam to use this accommodation helpfully. Dharmendra is a heavenly
model for that. Since he would not like to separate from his first spouse, mother of the Deol
siblings, he changed over to Islam to wed Hema Malini. The Muslims in India, for the
motivations behind close to home law, are administered by The Muslim Personal Law (Shariat)
Application Act, 1937.

Since marriage falls in such area and as per Muslim Law, a man can wed upto 4 ladies all at
once, exposed to conditions point of reference and resulting. Consequently the lawful position
right presently is that an Indian Muslim man can have upto 4 spouses all at once.

The nikah is only according to the sharia if the first wife approves of it .If it is needed for a set
of reasons (could be infertility of the first partner, the first partner being terminally ill, among
others)Both partners are treated absolutely equally by the man. No preference should be made
apparent to either party. Since all this is obviously not possible for a human to achieve, a second
marriage is advised only in cases where there's no option left for the man.

The Quran allows a man to have up to four wives, but also underscores that a man
realistically cannot treat multiple wives equally. Some scholars have interpreted these verses
to mean that a man can only marry multiple women if he can treat them all equally –
particularly with respect to their financial position. The contemporary Hanafi school of
Islamic law views polygamy as permitted but not required; thus, the school has even allowed
the use of contracts between spouses stipulating that the husband cannot take more than one
wife.

Indian Supreme Court has refused numerous times to declare that polygamy is
unconstitutional. IN AHMEDABAD WOMEN ACTION GROUP (1997), for instance, the
Court dismissed a writ petition asking that laws under which Muslims are allowed to practice
polygamy (as well as unilateral ṭalāq – or male-initiated divorce – which favors men over
women, and discriminatory inheritance laws) be declared unconstitutional, stating that these
matters are for the legislature, not the courts to determine.

Similarly, in JULEKHABI V. UNION OF INDIA, the Indian Supreme Court rejected a

2001 plea by a woman whose husband took a second wife and then divorced her. She was
asking that polygamy be declared unconstitutional on the ground it constitutes a denial of

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equality, personal liberty, and human rights. The Supreme Court again instructed her to
approach parliament for a remedy.

The Supreme Court’s reaction to constitutional challenges to polygamy appears to be in line

with the Court’s historical hesitance to address the constitutionality of various aspects of
Muslim personal law, and its tendency to instead urge that such issues were rightly within the
legislature’s purview. IN NARASU APPA MALI in 1952, the Bombay High Court actually
limited its own ability to address these questions, holding that personal laws are not “laws in
force” within the purview of Article 13 of the Constitution, and thus need not satisfy the
fundamental rights test.[11] In a surprising move, the Supreme Court reiterated this view IN
KRISHNA SINGH V. MATHURA AHIR in 1980. However, this statement was dicta and
thus not considered a formal holding (although it remained persuasive authority at the least).

CONSTITUTIONAL VALIDY OF POLYGAMY IN HINDUSTAN

RIGHT TO RELIGION

Polygamy is not an essential practice of Islam religion. Article 25 protects those practices of a
religion without which the fundamental character of the religion will change. What is meant
by 'an essential part or practice of a religion' is now the matter for elucidation. In the present
case, the Respondents claim that polygamy and ‗talaq-e-biddat‘ are essential practices of
Islam. Essential part of a religion means the core beliefs upon which a religion is founded.
Essential practices mean those practices that are fundamental to follow a religious belief. Test
to determine whether a part or practice is essential to a religion is to find out whether the
nature of the religion will be changed without that part or practice, if the nature changes then
it can be treated as an essential part of the religion.

In the case of SHAHULAMEEDU V. SUBAIDABEEVI, it has been observed by the

Kerala High Court that, ―Yusuf Ali in his commentary on the Holy Quran pointed out that
the Prophet first strictly limited the unrestricted number of wives of the 'Times of Ignorance'

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to a maximum of four, provided you could treat them with perfect equality in material things
as well as in affection and immaterial things.' As this condition is most difficult to fulfil, the
recommendation was understood to be towards the practice of monogamy.

POLYGAMY IS NOT VIOLATIVE OF ARTICLE 14 :

Article. 14 of the Constitution is an amalgamation of the two standards, ‗equality previously

law’ and ‗equal insurance of the laws’. The equivalent or uniform treatment of unequals is
pretty much as awful as inconsistent treatment of equals. From the actual idea of the general
public, there ought to be various laws in better places. The Legislature controls the
arrangement and authorizes laws in awesome interest of the wellbeing and security of the
State.32 The standard is that the like ought to be dealt with the same and not that dissimilar to
ought to be dealt with the same. The equivalent or uniform treatment of unequals is pretty
much as awful as inconsistent treatment of equals.33 Separate treatment is regularly needed
for the shifting necessities of various classes of the general public. From the actual idea of the
general public, there ought to be various laws in better places and the Legislature controls the
arrangement and authorizes laws in awesome interest of the wellbeing and security of the
State. Truth be told, indistinguishable treatment in inconsistent conditions would sum to
inequality.34 So, a sensible characterization isn't possibly allowed however is fundamental in
case society is to progress . \ these contentions placed by the author clearly show that this
practice of

these contentions placed by the author clearly show that this practice of polygamy in Muslim
Law does not violate Article 14 of the Part III of the Constitution.

PRACTICE OF POLYGAMY IS SECURED UNDER ART.25:

According to the regarded Constitution none of the rights ensured are outright. They are
liable to certain limitations. Now and again, the actual Constitution forces the limitation. In
others, the Parliament has the force to make the limitation. In the current case, Constitution
has forced the limitation. To practice the principal right ensured under Art. 25, a limitation is

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set on Art. 14 which is likewise a central right.38 Classification based on religion has been
allowed in a few cases by the Hon'ble Courts and by the actual constitution. It was held that
order revered in strict practice which is saved by Arts. 25 furthermore, 26 of the Constitution
isn't infringement of Art.

NOT VIOLATIVE OF ARTICLE 21:

• RIGHT TO QUALITY LIFE

The right to life with human dignity encompasses within its fold some of the finer facets of
human civilization. The expanded connotation of life would mean the tradition and cultural
heritage of the persons concerned.55The need for a decent and civilized life includes the right
to food, water and decent environment.56 Quality life guaranteed by the husband to the wife
is not violated by the practices of polygamy. The Hon‘ble Court has ruled that the right to life
is guaranteed in any civilized society which would take within its sweep the right to food, the
right to clothing, the right to decent environment and a reasonable accommodation to live in.
For an animal, it is the bare protection of the body; for a human being it has to be a suitable
accommodation which would allow him to grow in every aspect – physical, mental and
intellectual . MR . rio provided all the best quality of life to both her wives .

• RIGHT TO CHOOSE
The right to choice was recognized as a part of Art. 21 of the Constitution.
Marriage among Mohammadans is not a sacrament, but purely a civil
contract‖. Deviation from the terms and conditions of the contract takes away
the basic. fundamentals of the Islamic law. As mentioned in the art.21 as well
as muslim marriage act that marriage is a contract and mr . rio before the
marring ms.tokyo tell her condition that he wants only one child ,so its clear
that it is a contract and not violative of right to choose as mr. Tokyo have the
choice to not marry MR. RIO . Every contract
has terms and conditions to it. Deviation from the terms and conditions of the
contract takes away the basic

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fundamentals of the Islamic law.

• RIGHT TO DIGNITY
Our Constitution has often been described as transformative. One of the most
important purposes of this transformation is to ensure that, by the realisation
of fundamental socioeconomic rights, people disadvantaged
by their deprived social and economic circumstances become more capable of
enjoying a life of dignity, freedom and equality that lies at the heart of our
constitutional democracy. Dignity is the quintessential quality of a personality
and a human frame always desires to live in the mansion of dignity, for it is a
highly . as in muslim personal law ( shariat act 1937 allows to marry 4 wives )
and constitution under article 25 right to follow religion is their .

• RIGHT TO PRIVACY
In the infamous case of NAVTEJ SINGH JOHAR V. UOI Law Ministry,the
honourable court held that Privacy includes at its core the preservation of
personal intimacies, the sanctity of family life, marriage, procreation, the
home and sexual orientation. The way of life one chooses to follow is an
integral part of privacy. The author asserts that the practice of polygamy does
not violate the right to privacy and Art.21 as a whole. Article 12 of the
Universal Declaration of Civil and Political Rights clearly states that no
person shall be subjected to arbitrary interference with his privacy, family,
home or correspondence nor to attacks upon his reputation. As MS. TOKYO
herself chooses to marry MR RIO . did not force her to marry with him . he
cleared all the things and his desires .

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PRAYER

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

1. The Appeal is not maintainable on grounds of cruelty and Hon’ble Court has
complete jurisdiction over the matter; and
2. The polygamy is not unconstitutional for muslims in Hindustan . and it is
not valid ground of divorce .
3. It is not maintainable under muslims personal laws u/s 2 of shariat act
1937 .
4. That it is not violative of any of the fundamental rights of constitution of
Hindustan .

AND/OR
Pass any order that it deems fit in the interest of Justice, Equity and Good
Conscience. And for this act of kindness, the Appellants as in duty bound, shall
humbly pray.

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