FRESHER INDUCTION MOOT, 2023

TEAM CODE- 04

FRESHER INDUCTION MOOT 2023, LAW CENTRE-1

IN THE HON’BLE HIGH COURT OF VIDHARBHA

UNDER THE MUSLIM WOMEN (PROTECTION OF

IN THE MATTER OF

C.S. NO. OF 2023

MS. SALMA BHANU

(PLAINTIFF)

VERSUS

UNION OF DHARMASTHAN

(DEFENDANT)

BEFORE THE HON’BLE CHIEF JUSTICE AND

HIS COMPANIONS JUSTICES OF

THE HON’BLE HIGH COURT OF VIDHARBHA

MEMORIAL ON THE BEHALF OF THE PLAINTIFF

MEMORIAL ON THE BEHALF OF PLAINTIFF Page 1
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TABLE OF CONTENTS

Serial No. TOPIC Page No.

1. List of Abbreviations 3
2. Index of Authorities 4
(a) Statutes 4
(b) Books 4
(c) Websites 4
(d) Cases 9
3. Statement of Jurisdiction 5
4. Statement of Facts 6
5. Grounds of Appeal 7
6. Summary of Arguments 8
7. Argument Advanced 9
8. Prayer 10

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LIST OF ABBREVIATIONS

Art Article
Sec Section
Hon’ble Honourable
& And

Consti. Constitution of Indiana

SC Supreme Court
HC High Court
ARGU ARGUMENTS

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INDEX OF AUTHORITIES

STATUTES

 THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) BILL, 2017

 THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE), 2018
 CONSTITUTIONAL LAW OF INDIA

BOOKS

 Muslim Law by Mohammadan Law

 The Constitution of India by Durga Das Basu, Edition 2022

WEBSITES

 https://www.casemine.com/
 https://indiankanoon.org/
 https://www.ssconline.com/

CASES ;-

 Mohd. Ahmed Khan v. Shah BMano Begum (1985)

 Smt. Sarla Mudgal, President, Kalyani v. Union of India (1995)
 Shayara Bano v. Union of India (2017)

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STATEMENT OF JURISDICTION

The plaintiff, Ms. Salma Bhanu, has filed a writ petition before the HC of New Vidharbha
challenging the constitutionality of The Muslim Women (Protection of Rights on Divorce) Act
2018. She contends that the impugned legislation is violative of her right to equality, freedom of
religion, & right to life. The HC of Vidharbha dismissed the petition, & Ms. Salma Banu has
approached the apex Court challenging the action of the HC by way of Special Leave Petition.

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STATEMENT OF FACTS

1. That, the constitutional & legal framework related to religious practices & personal laws
in Dharmasthan, a secular country with diverse communities. It mentions the right to
freedom of religion as a fundamental right enshrined in the Consti. & how the Muslim
community has separate personal laws governing marriage, divorce, succession, etc.
However, the passage also highlights the issue of triple talaq or talaq-e-biddat, a unilateral
divorce practice among Muslims, which was declared unconstitutional by the SC in 2017.
In response, the Union Government passed The Muslim Women (Protection of Rights on
Divorce) Act 2018 to prevent this form of divorce & provide legal redressal to victims of
illegal divorce.
2. That, the legal challenge to the constitutionality of this legislation by Ms. Salma Bhanu,
who filed a writ petition before the HC of New Vidharbha, citing violations of the right to
equality, freedom of religion, & right to life. The HC dismissed the petition, & Ms. Salma
Banu has approached the apex court challenging the action of the HC by way of Special
Leave Petition.
3. That, the passage presents a complex legal & constitutional issue related to personal laws,
gender justice, & religious freedom in Dharmasthan, which is yet to be resolved by the
apex court.
4. That, the constitutional validity of The Muslim Women (Protection of Rights on Divorce)
Act, 2018, which was passed by the Union Government of Dharmasthan to give legal
effect to the Sc’s judgment on triple talaq. The Act declares triple talaq or talaq-e-biddat
as void & illegal & prescribes punishment for its commission. The plaintiff, Ms. Salma
Bhanu, a renowned advocate & former Central Minister, has challenged the
constitutionality of this legislation by filing a writ petition before the HC of New
Vidharbha. She contends that the impugned legislation is violative of right to equality,
freedom of religion & right to life. The HC of Vidharbha has dismissed the petition,
stating that the legislature has passed it in accordance with the law laid down in the
Consti.. Ms. Salma Banu has approached the apex Court challenging the action of HC by
way of Special Leave Petition. The matter is fixed for final hearing before the apex Court.

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GROUNDS OF APPEAL
·

Based on the information provided in the scenario, it is not clear which specific question was asked
in the court. The scenario describes a legal case where a renowned advocate & former Central
Minister, Ms. Salma Bhanu, has challenged the constitutionality of the Muslim Women (Protection
of Rights on Divorce) Act 2018 by filing a writ petition before the HC of New Vidharbha. She
contends that the impugned legislation is violative of right to equality, freedom of religion & right
to life on various grounds, which are listed in the scenario. Later, the scenario states that Ms. Salma
Banu has approached the apex Court challenging the action of HC by way of Special Leave
Petition, & the matter is fixed for final hearing before the apex Court.
Therefore, it is likely that the specific questions asked in the court would depend on the argu. &
contentions raised by Ms. Salma Bhanu & the response of the opposing party, as well as the legal &
constitutional issues involved in the case.

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SUMMARY OF ARGUMENTS

Introduction

1. This writ petition has been filed by the petitioner, Ms. Salma Bhanu, challenging the
constitutionality of The Muslim Women (Protection of Rights on Divorce) Act, 2018. The
petitioner submits that the impugned legislation violates fundamental rights enshrined in the
Consti. of Dharmasthan, including the right to equality, freedom of religion, & right to life.
Arguments
2. The impugned legislation is violative of the right to equality as enshrined in Art 14 of the
Consti.. The legislation selectively targets the Muslim community & imposes stringent laws
violating Art 14 of the Consti..
3. The impugned legislation encroaches upon the right to religion by prescribing criminal
punishment for a practice that is considered a civil matter. Marriages in the Muslim
community are considered a contract, & deviations are dealt with through civil laws than
under the criminal laws.
4. The impugned legislation is self-contradictory as it nullifies the pronouncement of triple
talaq in its initial sec & then goes on to presume that it actually results in divorce & brings
up the issue of allowance & custody of children under its sec 6 & 7. This confusion in the
legislation is a serious violation of the rule of law.
5. The impugned legislation violates the right to life by providing for stringent punishment for
a private wrong. While crime is a public wrong, the problems arising out of domestic
relations like divorce give rise to ‘private wrongs’ for which prosecution is not the
appropriate remedy, unless domestic violence leads to abhorrent practices like seriously
causing bodily injuries or killing within four walls or other inhuman acts.
6. The impugned legislation is ill-conceived as the SC issued direction for legislation by 2/3rd
majority only. This legislation violates the very principle of democracy by ignoring the
voice of the minority community.

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ARGUMENT ADVANCED
The plaintiff, Ms. Salma Bhanu, has challenged the constitutionality of The Muslim Women
(Protection of Rights on Divorce) Act, 2018. Here are the argu. advanced by her:
1. Right to equality: Ms. Bhanu argues that the Act violates the right to equality as it targets a
particular community & imposes stricter laws on them than on others. She contends that the
Act selectively targets Muslims & thus is discriminatory.
2. Freedom of religion: The plaintiff argues that the Act violates the freedom of religion as it
encroaches upon the personal laws of the Muslim community. She contends that marriage &
divorce are considered a contract in the Muslim community, & deviations are dealt with
through civil laws than under the criminal laws.
3. Right to life: The plaintiff argues that the Act violates the right to life as it imposes harsh
punishment for a private wrong. She contends that crimes arising out of domestic relations,
like divorce, give rise to 'private wrongs' for which prosecution is not the appropriate
remedy, unless domestic violence leads to abhorrent practices like seriously causing bodily
injuries or killing within four walls or other inhuman acts.
4. Contradictory provisions: Ms. Bhanu argues that the Act has self-contradictory provisions.
While the Act nullifies the pronouncement of triple talaq in its initial sec., it goes on to
presume that it actually results in divorce & brings up the issue of allowance & custody of
children under its sec. 6 & 7.
5. Violation of SC verdict: The plaintiff contends that the Act violates the SC verdict that
declared talaq-e-biddat as invalid & doesn’t dissolve the marriage. If the practice stands
invalid & doesn’t dissolve the marriage, it cannot end up being a criminal offence which
should be severely punished as per Sec. 4 of this Act.

Supportive Case Law for the Plaintiff

1. Mohd. Ahmed Khan v. Shah Bano Begum (1985): In this case, the SC ruled that a
Muslim divorced woman was entitled to maintenance from her former husband even after
the iddat period.
2. Smt. Sarla Mudgal, President, Kalyani v. Union of India (1995): This case dealt with the
issue of bigamy & the conversion of a Hindu spouse to Islam for the purpose of contracting
a second marriage. The court held that such a conversion solely for the purpose of
contracting a second marriage was illegal.
3. Shayara Bano v. Union of India (2017): Although this case is also cited by the defendant,
the plaintiff may argue that it supports their case because it declared triple talaq
unconstitutional & invalid, which means that any legislation that criminalizes it may also be
unconstitutional.

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PRAYER

In light of the above, the petitioner prays for the Hon’ble Court to strike down the impugned
legislation as violative of fundamental rights enshrined in the Consti. of Dharmasthan.

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