Gnlu Petioner Memo

M-136
4th MANIPAL RANKA NATIONAL MOOT COURT COMPETITION 2018
BEFORE THE HONORABLE SUPREME COURT OF INDIA
WRIT PETITION NO: WP(C) 27/ 2018
IN THE MATTER OF
SANAYA BEGUM……………………………………………..PETITIONER
v.
UNION OF INDIA AND ORS………………………………………….RESPONDENT
ON SUBMISSION TO THE HONOURABLE SUPREME COURT OF INDIA UNDER
ARTICLE 32 OF THE CONSTITUTION OF INDIA
MEMORIAL SUBMISSION ON BEHALF OF PETITIONER

MEMORIAL ON BEHALF OF PETITIONER Page |2
TABLE OF CONTENTS
1. INDEX OF AUTHORITIES…………………………………………………...................3
2. LIST OF ABBREVIATION……………………………………………..........................6
3. STATEMENT OF JURISDICTION………………………………………........................7
4. STATEMENT OF FACTS………………………………………………….....................8
5. ISSUES RAISED ……………………………………………………….......................10
6. SUMMARY OF ARGUMENTS……………………………………………....................11
7. ARGUMENTS ADVANCED………………………………………………….................13
1. THAT THE WRIT PETITION FILED BY THE PETITIONER UNDER ARTICLE 32 IS
MAINTAINABLE............................................................................................................13
1) THAT ON VIOLATION OF FUNDAMNETAL RIGHTS PETITION UNDER ARTICLE 32 IS
MAINTAINABLE……………………………………………........................................14
2) THAT CHALLENGING THE CONSTITUTIONALITY OF STATUTE UNDER ARTICLE 32 IS
MAINTAINABLE…………………………………………………................................16
2. THAT THE TALAQ UNDER SECTION 2 OF SHARIAT ACT IS
UNCONSTITUTIONAL………………………………………………………….............18
1) THAT THE TALAQ GIVEN BY THE HUSBAND WAS VOID-AB-INITIO… …..................18
2) THAT THE PRACTICE OF TALAQ IS VIOLATIVE OF ARTICLE 14, 15 AND 21 OF THE
INDIAN CONSTITUTION………………….......................................................................21
3. THAT THE UNIFORM CIVIL CODE SHOULD BE IMPLEMENTED ...................................28
4. THAT THE FIFTH MARRIAGE THAT TOOK PLACE BETWEEN RIZWAN AHMED AND
AFREEN REHMAN IS VOID...............................................................................................32
1) THAT THE MARRIAGE BETWEEN RIZWAN AHMED AND SANAYA BEGUM WAS STILL IN
EXISTENCE.........................................................................................................................32
2) THAT HE SHOULD BE PROSECUTED FOR KIDNAPPING AND
RAPE...................................................................................................................................33
5. THAT THE PRACTICE OF BIGAMY IS UNCONSTITUTIONAL............................................35
1) THAT THIS PRACTICE IS VIOLATIVE OF ARTICLE 14 LEADING TO ITS
UNCONSTITUTIONALITY...................................................................................................35
2) THAT IT IS ALSO VIOLATIVE OF ARTICLE 15 RESULTING IN ITS
UNCONSTITUTIONALITY...................................................................................................38
INDEX OF AUTHORITIES
ARTICLES:
1. M.R Zafar, Unilateral divorce in Muslim personal law, Islamic law in modern India, 173,
1972.
2. Syeda Saiyiddin Hameeda, TRIPLE TALAQ, TIMES OF INDIA, 14, 2000.
3. Weekly Round Table, 1973.
BOOKS:
1. 1, 2,3 AND 6 D.D BASU, COMMENTARIES ON THE INDIAN CONSTITUTION (LEXIS

NEXIS 2008).
2. 1, DR. V.N. TRIPATHI, THE CONSTITUION OF INDIA (PREMIER PUBLISHING
COMPANY 2016).
3. 1, V.G RAMACHANDRAN’S LAW OF WRITS (EASTERN BOOK COMPANY 2006).
4. 1, VENKATARAMAIYA’S LAW LEXICON (DELHI LAW HOUSE 1980).
5. AQIL AHMAD, MOHAMMEDAN LAW (CENTRAL LAW AGENCY 2006).
6. ASAF .A.A FYZEE, OUTLINES OF MOHAMADDEN LAW (OXFORD UNIVERSITY
FORUM 2008).
7. BHATTACHARJEE, MUSLIM LAWAND THE CONSTITUTION (EASTERN LAW HOUSE
2016).
8. DR. R.K SINHA, MUSLIM LAW (CENTRAL LAW AGENCY 2006).
9. H.M SEERVAI, CONSTITUTIONAL LAW OF INDIA (UNIVERSAL 2006).
10. M.P JAIN, INDIAN CONSTITUTIONAL LAW (LEXIS NEXIS 2016).
11. MAULANA MUHAMMAD ALI, THE RELIGION OF ISLAM (BOOK CRAFTERS,
MICHIGA, U.S.A, 1990).
12. PARAS DIWAN, MUSLIM LAW IN MODERN INDIA (ALLAHABAD LAW AGENCY,
1997).
13. R.D. VERMA, COMMENTARIES ON MOHAMMEDAN LAW [LAW PUBLISHERS
(INDIA) PVT. LTD 2005].
14. S.R MYNENI, MUSLIM LAW (ASIA LAW HOUSE 2009).
15. SUBHASH C KASHYAP, CONSTITUTIONAL LAW OF INDIA (UNIVERSAL LAW
PUBLICATIONS LEXIS NEXIS).
16. TAHIR MAHMOOD, THE MUSLIM LAWOF INDIA (LEXIS NEXIS BUTTERWORTHS
2002).
17. V.N SHUKLA, CONSTITUTION OF INDIA (EASTERN BOOK COMPANY 2017).

18. YAWER QAZALBASH, PRINCIPLES OF MUSLIM LAW (MODERN LAW HOUSE 2005).
CASES:
1. A.L. Kalra v. Project and Equipment Corpn., (1984) 3 SCC 316.

2. A.S. Narayana Deekshitshulu v. State of A.P., (1996) 9 SCC 548.
3. A.V. Nachane v. UOI, (1982) 1 SCC 205.
4. A.Yousuf Rowther v. Sowramma, AIR 1971 Ker 261.
5. Acharya Maharaj Sri Narendra Prasadji Anandprasadji Maharaj v. State of
Gujarat,AIR 1974 SC 2098.
6. ADM Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521.
7. Air India Cabin Crew Association v. Yeshaswinee Merchant, AIR 2003 SC 3331.
8. Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722.
9. Ammini E.J. v. Union of India, AIR 1995 Ker 252.
10. Bandhu Mukti Morcha v. Union of India, AIR 1984 SC 802.
11. Bhajan Kaur v. Delhi Administration, 1996 A.I.H.C. 5644 (Del).
12. Bodhisattwa Gautam v. Subhra Chakraborty, AIR 1996 SC 922.
13. Budhon v. State of Bihar, AIR 1955 SC 194
14. C. Masilamani Mudaliar v. Idol of Sri Swaminathan Swami Thirukoil, (1996) 8 SCC
525.
15. C.F Ratilal v. State of Bombay, AIR 1954 SC 388.
16. Chairman, Railway Board v. Mrs. Chandrima Das,2000.
17. Chiranjit Lal Chowdhary v. Union of India, AIR 1951 SC 41.
18. Dagdu Chotu Pathan v. Rahimbi Dagdu Pathan, 2003 (1) Bom CR 740.
19. Darshan Prasad v. Civil Judge II, Gorekhpur , AIR 1992 SC 967.
20. E.P Royappa v. State of Tamil Nadu, AIR 1974 SC 555.
21. Francis Coralie Mullin v. UT of Delhi, (1981) 1 SCC 668.
22. Francis v. Union Territory, AIR 1981 SC 746.
23. Iqbal Bano v. State of U.P and ors, AIR 2007 SC 2215.
24. Jiauddin Ahmed v. Anwara Begum, (1981) 1 Gau LR 358.
25. Jorden Dienghdesh v. S.S. Chopra, AIR 1985 SC 935.
26. K.K. Kochuni v. State of Madras, AIR 1959 SC 725.
27. Kailash Nath v. State of U.P., AIR 1957 SC 790.
28. Karamjeet Singh v. Union of India, AIR 1993 SC 284.
29. Kartar singh v. State of Punjab, (1994) 3 SCC 569.

30. Kathia Raning Rawal v. State of Saurashtra, AIR 1952 SC 123.
31. Khatji v. Abdul, AIR 1977 J&K 44.
32. Kumari Srileka Vidyarthi Etc…..v. State of U.P And Ors, (1991) 1 SCC 212.
33. Lachman Das v. State of Punjab, AIR 1970 SC 450.
34. Lily Thomas v. Union of India, AIR 2000 SC 1650.
35. M. Ajmal Khan v. The Election Commission of India, (2007) 1 MLJ 91.
36. Maneka Gandhi v. Union of India, AIR 1978 SC 597.
37. Minerva Mills v. Union of India, AIR 1980 SC 1789.
38. Mithu singh v. State of Punjab, 1983 SCR (2) 690.
39. Mohd. Ahmed Khan v. Shah Bano Begum, 1985 SCR (3) 844.
40. Mohd. Hayat v. Mohd. Nawaz, AIR 1929 PC 212.
41. Mumm v. Illinois, 94 US 113 (1877).
42. Must. Rukia Khatun v. Abdul Khalique (1981) 1 GLR 375.
43. Naveen Kohli v. Neelu Kohli, (4) SCC 558 (2006).
44. Neena v. John Parmer, AIR 1985 MP 85.
45. Pragathi Varghese v. Cyril George Varghese, AIR 1997 Bom 349.
46. Rahmatullah v. State of U.P., 1994 (iz) Lucknow Civil Division.
47. Ramana Dayaram Shetty v. The International Airport Authority, (1979) 3 SCC 489.
48. Romesh Thappar v. State of Madras, (1950) SCR 594.
49. Rukia Khatun v. Abdul Khalik Laskar, (1981) 1 Gau LR 375.
50. Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, AIR 1962 SC 853.
51. Sarla Mudgal v. Union of India, AIR 1995 SC 1531.
52. Shahulameeda v. Subaida Bebee, 1970 MLJ Cr 562.
53. Shamim Ara v. State of U.P., (2002) 7 SCC 518: AIR 2002 SC 619.
54. Shri Adi Visheshwara of Kasi Viswanath Temple v. State of U.P., (1997) 4 SCC 606.
55. SR v Bomai, AIR 1994 SC 1918.
56. State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84.
57. State of Kerala v. T.P. Roshana and Anr, 1979 SCR (2) 974.
58. State of W.B. v. Ashutosh Lahiri, (1995) 1 SCC 189.
59. Subramanian Swamy v. CBI, (2014) 8 SCC 682.
60. T. Devadasan v. Union of India, AIR 1964 SC 179.
61. Venkataramana v. State of Mysore, AIR 1958 SCR 895.
62. Zohara Khatoon v. Mohd. Ibrahim, AIR 1981 SC 124.
CONSTITUTIONAL ASSEMBLY DEBATES:

1. VII, Constitutional Assembly Debates Official Report, 4th reprint 2003.
LAW COMMISSION REPORT

1. 58th Law Commission Report, Structure and Jurisdication Of Higher Judiaciary.
STATUTES:
1. Constitution of India, 1949.
2. Shariat Act, 1937.
LIST OF ABBREVIATION
A.I.H.C All India High Court Cases

A.P Andhra Pradesh
AIR All India Reporter
ALD Administrative Law Decisions
Anr. Another
Art. Article
Bom Bombay
C.J Chief Justice
CBI Central Bureau Of Investigation
CJI Chief Justice of India
Cl. Clause
Corpn. Corporation
Cr. Crime
Cri Criminal
Del Delhi
ed. Edition
Etc. Et cetera
Gau Guwahati
GLR Gujarat Law Reporter
i.e That Is
J&K Jammu And Kashmir
Ker Kerala
LR Law Reporter
M.P Madhya Pradesh
MLJ Madras Law Journal
Mohd. Mohammed
Ors. Others
p. Page
PC Privy Council
pp. Pages
RBI Reserve Bank Of India
Rev. Revision
S. Section
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reports
Sec Section
T.N. Tamil Nadu
U.P Uttar Pradesh
UOI Union of India
US United States
v. Versus
W.B West Bengal
W.P Writ Petition
STATEMENT OF JURISDICTION
The Petitioner has approached the Honourable Supreme Court of India under Article 32 1of
the Constitution of India, 1949.
1
Remedies under Article 32 of the constitution of India.
1) “The right to move to move the Supreme Court by appropriate proceedings for enforcement of the rights
conferred by this part is guaranteed.
2) The Supreme Court shall have the power to issue directions or orders or writs in the nature of Habeaus
corpus, mandamus, prohibition, quo warranto and certiorari, which ever may be appropriate, for the
enforcement of any of the rights conferred by this part.
3) Without prejudice to the powers conferred on the Supreme Court by Clause (1) and (2), Parliament may
by law empower any other court to exercise within the local limits of its jurisdiction all or any of the
powers exercisable by the Supreme Court under Cl. (2).
4) The right guaranteed by provided by this article.” this article shall not be suspended except as otherwise.”
STATEMENT OF FACTS
1. Chandramukhi, a Hindu girl of 20 years and Rizwan Ahmed, a muslim boy of 24 years
fell in love when both were students in the same college. Chandramukhi expressed her
desire to get married according to Hindu customs but Rizwan insisted her to convert to
Islam and to have Nikah as per Shariat. Chandramukhi converted to Islam and was
renamed Sanaya Begum. The Nikah was performed in the year 2010 as per Muslim
customs. They had one son Mohammed Irfan and a daughter Shayara Bano.
2. In 2013, in spite of objection raised by Sanaya Begum, Rizwan had a second marriage
with a 20 years old Umaira Naaz. Rizwan then had a third marriage with Gulshan Parveen
in 2016. He married a fourth wife Ishrat Jahan in January, 2018 despite being objected
from Sanaya Begum, he claimed that he was allowed by Islamic law to have 4 wives at a
time.
3. Because of this the relations between Sanaya and Rizwan became strained. He started
neglecting her and her children. Sanaya went back to her parental house. Rizwan Ahmed
did not take any steps to reconcile and bring her back to the matrimonial house. He
opened her apartment and sent her clothes to her parental house. He then discontinued
maintaining his first wife and children.
4. On 10 February, 2018 Rizwan Ahmed in presence of two witnesses declared
“Talaq,Talaq,Talaq” and hence divorced his first wife Sanaya Begum. The message was
conveyed on mobile of Sanaya Begum. A Deed of Divorce was executed on 10.02.2018
and it was sent to Sanaya through speed-post along with a demand draft of Rs 51,000/-
comprising payment of dower and expenses of waiting period. Rizwan after divorce
through “Triple Talaq” got attracted to a club dancer Afreen Rehman. He kidnapped her,
took her to a posh hotel and raped her. On persuasion, he had Nikah with her in a simple
ceremony on 01.03.2018 .
5. The petitioner, Sanaya Begum approached the Supreme Court under Article 32 for a
declaration that ‘Talaq-e-biddat’ pronounced by her husband be declared void-ab-initio
and Talaq under section 2 of the Muslim Personal Law (Shariat) Application Act be
declared unconstitutional.
6. The petitioner also submitted that divorce of instant nature can not be treated as “rule of
decision” and is violative of Articles 14, 15 and 21 of the Constitution. That ‘Talaq-e-
biddat’ cannot be protected under Articles 25(1), 26(b) and 29 of the Constitution has
been submitted by the petitioner. The petitioner has also sought that Uniform Civil Code
MEMORIAL ON BEHALF OF PETITIONER P a g e | 10
be directed to be enacted within 5 years. She also claimed that the fifth marriage with
Afreen is illegal and Rizwan be prosecuted for committing rape and kidnapping. She also
contended that bigamy needs to be declared violative of Articles 14 and 21 of the
Constitution.
7. Respondent Rizwan Ahmed has admitted factum of marriage and birth of children. He
claimed that the petitioner left the matrimonial house on her own accord. Pronouncement
of ‘Talaq’ was in consonance with prevalent and valid mode of dissolution of Muslim
marriage according to Shariat. Rizwan married Afreen with her consent and therefore the
question of rape does not arise. Respondent denied the charge of kidnapping and rape.
Respondent also submitted that the petition under Article 32 is not maintainable.
8. The petitioner will be heard before a 5 Judge Bench on 29 th September, 2018.
+
ISSUES RAISED
1. That the writ petition filed by the petitioner under Article 32 of the Indian constitution is
maintainable.
I. That on violation of fundamental rights petition under Article 32 is maintainable.
II. That Constitutionality of Statute can be challenged under Article 32.
2. That the Talaq under section 2 of Shariat Act is unconstitutional.
I. That the Talaq given by husband was void-ab-initio.
II. That the Talaq is violative of Article 14, 15 and 21 of the Indian constitution.
3. That the uniform civil code should be implemented in India.
4. That the fifth marriage which took place between Rizwan Ahmed and Afreen Rehman is
void.
I. That the marriage between Rizwan Ahmed and Sanaya Begum was still in
existence when he married Afreen Rehman.
II. That he should be prosecuted for kidnapping and rape.
5. That the Practice of Bigamy is Unconstitutional.
I. That this practice is violative of Article 14 resulting in its unconstitutionality.
II. That it is also violative of Article 15 resulting in its unconstitutionality.
SUMMARY OF ARGUMENTS
1. THAT THE WRIT PETITION FILED BY THE PETITIONER UNDER ARTICLE 32 OF THE
INDIAN CONSTITUION IS MAINTAINABLE.
The practice of Talaq which is a form of divorce proceeding at the instance of husband
recognized under Muslim law is violative of fundamental rights guaranteed under article
14, 15 and 21 of the Indian constitution. This practice of Muslim personal law being
arbitrary in nature confers inferior status to women negating the principle of equality.
Therefore the petitioner whose fundamental rights has been infringed has all the rights to
approach this honourable court under Article 32 of the Indian constitution because the
right to approach this court on violation of fundamental right is itself a fundamental right
under article 32. Therefore the counsel on behalf of petitioner humbly submits that the
petition filed under article 32 of the constitution of India is maintainable.
2. THAT THE TALAQ UNDER SECTION 2 OF SHARIAT ACT IS UNCONSTITUTIONAL.

Article 25 provides protection to only those practices which form an essential part of
religion and therefore the right to religion guaranteed under article 25 is not absolute in
nature. Thus this practice of Talaq which does form not an essential part of Muslim
religion and infringing fundamental rights is not protected under article 25 of the Indian
constitution. Therefore the counsel on behalf of petitioner submits that Talaq under
section 2 of Shariat Act resulting in violation of fundamental rights is unconstitutional.
3. THAT UNIFORM CIVIL CODE SHOULD BE IMPLEMENTED IN INDIA.
The purpose of Uniform Civil Code is to treat all the citizens on equal footing
irrespective of religion followed by them thus reducing the complexity to arrive at
justice. Supreme Court in several judgements held that Uniform Civil Code is necessary
and requested legislature to ensure effective implementation of Uniform Civil Code.
Therefore the petitioner’s claim for enactment of Uniform civil code to concretise unity
and integrity of nation under Article 32 of Indian constitution is justiciable.
4. THAT THE FIFTH MARRIAGE WHICH TOOK PLACE BETWEEN RIZWAN AHMED AND
AFREEN REHMAN IS VOID.
Rizwan Ahmed married Afreen Rehman during the period of Iddat of his first wife Sanaya
Begum, rendering the marriage to be irregular in nature. He kidnapped and raped her before
entering into marital relationship thereby infringing the right to life guaranteed under article 21
of the Indian constitution. Therefore the petitioner’s petition in the interest of society filed under
article 32 is said to be maintainable.
5. THAT BIGAMY IS UNCONSTITUTIONAL

The practice of bigamy recognised and validated under Muslim law negates the
principle of equality because this practice of having more than one spouse was allowed
only for Muslim males and not to females. This practice of having four wives at a time
is inhuman way of living and this practice of bigamy though punishable under section
494 of Indian penal code,1860 is still being allowed for Muslims to practice. Therefore
the petitioner’s claim for this kind of disgust practice to be declared unconstitutional
should be upheld.
ARGUMENTS ADVANCED
1. THAT THE WRIT PETITION FILED BY THE PETITIONER UNDER ARTICLE 32 OF THE
INDIAN CONSTITUION IS MAINTAINABLE.
1.1. The petitioner Sanaya Begum was married to Rizwan Ahmed as per Muslim customs and
out of their wedlock they had two children. Inspite of objection raised by his first wife
Sanaya Begum, he married three other women claiming it to be rightful as per Islamic
Law. He then started neglecting Sanaya begum and her children and because of this the
relationship between them got strained and suddenly Rizwan Ahmed divorced the
petitioner by declaring Talaq thrice as per the provision under section 2 of Shariat Act,
1937. The petitioner filed a writ petition under article 32 of the Indian constitution to put
an end to this despotic power vested in Muslim males of divorcing their wives
unilaterally at their personal whim and caprice which is against the fundamental rights
guaranteed under part III of the Indian constitution.
1.2. Article 32 of the Indian constitution states as follows:
1) “The right to move to move the Supreme Court by appropriate proceedings for
enforcement of the rights conferred by this part is guaranteed.
2) The Supreme Court shall have the power to issue directions or orders or writs in the
nature of Habeaus corpus, mandamus, prohibition, quo warranto and certiorari, which
ever may be appropriate, for the enforcement of any of the rights conferred by this part.
3) Without prejudice to the powers conferred on the Supreme Court by Clause (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under Cl. (2).
4) The right guaranteed by provided by this article.” this article shall not be suspended
except as otherwise.”
1.3. The counsel appearing on behalf of the petitioner submits that Talaq Practiced by
Muslim husbands in divorcing their wives unilaterally, irrevocably at their personal
whim and caprice is violative of article 14 and 15 and 21 of the Indian constitution.
Therefore the counsel pleads that the petitioner complaining of infraction of fundamental
rights guaranteed by the constitution is free to move to the Supreme Court under article
32 of the Indian constitution.2
1.4. Talaq-ul-biddat is form a divorce where Talaq is pronounced in one Tuhr, in one sitting,
in an irrevocable form running counter to the mandate of Holy Quran has been regarded
2
Chiranjit Lal Chowdhary v. Union of India, AIR 1951 SC 41.
as sinful under all Islam-sunnat. This mode of Talaq which gives unbridled power to the
husband has the effect of perpetuating male authoritarianism and discrimination on the
ground of sex resulting in the violation of article 14 and 15 of the Indian constitution.3
I. THAT ON VIOLATION OF FUNDAMENTAL RIGHTS PETITION UNDER ARTICLE 32 IS
MAINTAINABALE.
1.5. Article 14 of the Indian constitution guarantees that: “The state shall not deny to any
person equality before law or the equal protection of the laws within the territory of
India.” Equality before the law only means that amongst equals the law should be equal
and should be equally administered. 4
Apart from ‘equal protection’ ensured by this
article, the guarantee of equality before law “ensures fairness and equality of treatment,
reasonableness and non-arbitrariness”. 5 This practice of Talaq which is unilaterally
exercised by the Muslim males without any reasonable cause over their wives
capriciously and irregularly proves that it is a despotic power arbitrary in nature. One
need not confine the denial of equality to evaluate between two persons to arrive at a
conclusion of discriminatory treatment. An action per se arbitrary itself denies equal
protection by law. 6 Hence when an action is found to be arbitrary and, therefore,
unreasonable, it would negate the equal protection of the law contained in Article 14. 7
In Royappa v. State of T.N. 8 , it was held that principle of equality should not be
subjected to a narrow pedantic or lexicographic approach. Equality is a dynamic concept
with many aspects and dimensions and it cannot be “cribbed, cabined and confined”
within traditional and doctranise limits. It held that equality is antithetic to arbitrariness.
In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in
public while the other to the whim and caprice of an absolute Monarch. Where an act is
arbitrary, it is implicit that it is unequal both according to political logic and
constitutional law and it is therefore violative of article 14.
1.6. Article 15 of the Indian constitution states that: “Prohibition of discrimination on
grounds of religion, race, caste, sex or place of birth and clause (1) of article 15 states
that the State shall not discriminate against any citizen on grounds only of religion, race,
caste, sex, place of birth or any of them.”
3
Justice Tilhari in Rahmatullah v. State of U.P.,1994 (iz) Lucknow Civil Division.
4
1,Venkataramaiya’s Law Lexicon, Human rights.
5
Maneka Gandhi v. Union of India,AIR 1978 SC 597.
6
A.L. Kalra v. Project and Equipment Corpn.,(1984) 3 SCC 316.
7
Lachman Das v. State of Punjab,AIR 1970 SC 450.
8
E.P Royappa v. State of Tamil Nadu,AIR 1974 SC 555.
1.7. The counsel appearing on behalf of petitioner humbly submits that Talaq-ul-biddat
practiced by Muslim males to unilaterally divorce their wives, violates the fundamental
rights of these women guaranteed under article 15 of the Indian constitution.
Discrimination shortly defined means, difference in treatment. Distinguish unfavourably
from others.9 The practice of Talaq is biased towards male when compared to females
because it permits men to divorce their wife without any reasonable cause but Muslim
women does not have any right to divorce their husband unless and until her husband
gives consent to the same thus placing women under the authoritative and despotic rule
of husband in an inferior position. Discrimination thus involves an element of
unfavourable bias and it is in that sense that the expression has to be understood in this
context. If such bias is disclosed and is based in any of the grounds mentioned in Arts 15
and 16, it is more than enough for a statute to violate these articles. 10Article 15 which
prohibits discrimination based on sex in its provision can said to be infringed when
females would have received the same treatment with males “But for their sex”. In
English law “but for-sex” test have been developed to mean that no less favourable
treatment is to be given to women on gender based criterion, which would favour the
opposite sex and women will be deliberately given less favourable treatment because of
their sex.11This clearly proves that Talaq is biased in nature and discriminates on the
ground of sex as this practice is clearly Patriarchial and places women at lower strata
when compared to men.
Supreme Court in C. Mudaliar v. Idol of Sri Swaminatha Swami Thirukoli, held that
personal laws conferring inferior status on women is anathema to equality. Personal
laws, not being derived from the Constitution but from religious scriptures. All forms of
discrimination on grounds of gender is violative of fundamental freedom and human
rights. Women have right to equality of status and opportunity which also forms part of
basic structure of the constitution. 12
In Ammini E.J. v. Union of India13 while dealing with the matter as regards to section
10 of the Indian Divorce Act, the court declared that the concerned section was much
favourable to the husband as compared to the wife and therefore violates article 14 and
9
Nain Sukh v. State of U.P.,AIR 1953 SC 384.
10
Kathia Raning Rawal v. State of Saurashtra,AIR 1952 SC 123.
11
Air India Cabin Crew Association v. Yeshaswinee Merchant,AIR 2003 SC 3331.
12
C. Masilamani Mudaliar v. Idol of Sri Swaminathan Swami Thirukoil,(1996) 8 SCC 525.
13
Ammini E.J. v. Union of India, AIR 1995 Ker 252.
15 of the Constitution thereby amounting to discrimination based on sex and denial of

equality on the ground of sex.
1.8. Article 21 of the Indian constitution states that: “No person shall be deprived of his
life or personal liberty except according to procedure established by law.”Article 21 is a
declaration of deep faith and belief in human rights. Each expression used in this article
enhances human dignity and values. It lays foundation for a society where rule of law
has primary and not arbitrary or Capricious exercise of power.14 Talaq is an unbridled
authority which is arbitrary and capricious in its use when pronounced by Muslim males
to divorce their wives infringing their right of dignity guaranteed under article 21 of the
Indian constitution. Article 21 is not only been protected from getting violated from
infringement of state, but it is a right which has to be protected from being interfered
with by private individuals. 15 Hence practice of Talaq being clear infringement of Article
21 can be enforced against individuals practicing it.
Former chief justice of India J.S Verma in one of his lectures has observed: the right to
life with dignity is a recognized fundamental right under Art. 21 of the constitution of
India and it is a basic human right inherent in human existence which is not the gift of
any law.16 Violation of dignity is violative of article 21 and hence it was held in Pragathi
Varghese v. Cyril George Varghese 17, that section 10 of Divorce Act, which provides
different treatment to Christian women is violative of dignity.
II. THAT CONSTITUTIONALITY OF A STATUTE CAN BE CHALLENGED UNDER ARTICLE
32.
1.9. According to article 13(1) of the constitution “All laws in force in the territory of India
immediately before the commencement of this constitution, in so far as they are
inconsistent with the provisions of Part III of the constitution shall be void.” The law
which is binding on citizens and recognised by state as enforceable is basic defining
feature of law. Personal laws are binding on citizens and even today are recognized and
enforced by the State. The State has explicitly recognized personal laws in form of
legislations for example, Muslim personal laws have been provided recognition through
the Muslim Personal Laws (Shariat) Application Act 1937 and Hindu personal laws
through various legislations such as Hindu Marriage Act, 1955, Hindu Succession Act
14
Kartar singh v. State of Punjab,(1994) 3 SCC 569.
15
Bhajan Kaur v. Delhi Administration,1996 A.I.H.C. 5644 (Del).
16
CLEAN ENVIRONMENT A HUMAN RIGHT IMPERATIVE FIFTH GREEN LAW LECTURE AT THE
CENTRE FOR ENVIRONMENTAL LAW ON 25-2-2001.
17
Pragathi Varghese v. Cyril George Varghese,AIR 1997 Bom 349.
1956, the Hindu Minority and Guardianship Act 1956, the Hindu Adoptions and
Maintenance Act 1956.
In C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami, the Supreme Court has
held that: “Personal laws are derived not from the Constitution but from the religious
scriptures. The laws thus derived must be consistent with the Constitution lest they
become void under Art. 13 if they violate fundamental rights”.18
1.10. Thus in light of Authorities cited and Arguments Advanced, the counsel appearing on
behalf of the petitioner submits that this petition filed under Article 32 of the Indian
constitution is maintainable because the right to approach the Supreme Court in case of
violation of fundamental rights is itself a fundamental right 19 and it is the duty of
Supreme court to protect and safeguard these fundamental rights once when petitioner
20
proves it to be violated. The Supreme Court has all the rights to test the
constitutionality of a statute when challenged as being arbitrary and unreasonable. 21 And
it cannot refuse to entertain application seeking to enforce protection against
fundamental rights.22Hence the counsel submits that the Supreme Court having all the
power to enforce fundamental rights even against the private parties 23this petition filed
under article 32 of the Indian constitution is maintainable.
18
Supra 11, at 15.
19
Kochunni v. State Of Madras, AIR 1959 SC 725.
20
1, V.G. Ramachandran’s Law of Writs, 131 (6th ed. 2006).
21
Minerva Mills v. Union of India, AIR 1980 SC 1789.
22
Romesh Thappar v. State of Madras, (1950) SCR 594.
23
Bodhisattwa Goutham v. Subhra Chakraborty, (1996) 1 SCC 490.
2. THAT THE TALAQ UNDER SECTION 2 OF SHARIAT ACT IS UNCONSTITUTIONAL.

I. THAT THE TALAQ GIVEN BY THE HUSBAND IS VOID AB INITIO.
2.1. The counsel appearing on behalf of petitioner humbly submits that the Talaq given by
husband is void-ab-initio.
Rizwan Ahmed fell in love with Chandramukhi who was studying with him in his
college. Before getting married, Chandramukhi changed her name to Sanaya Begum.
Later Nikah was performed according to Muslim customs and out of their wedlock they
had a son and a daughter. Rizwan Ahmed then married three other women subsequently
because of which he started neglecting Sanaya Begum and her children. Their strained
relationship caused her to leave her marital home. No efforts were made by Rizwan
Ahmed in bringing her back to the matrimonial home. He then divorced her by declaring
“Talaq,Talaq,Talaq” by sending a message through phone. Sanaya Begum has therefore
filed a petition under article 32 of the Indian constitution for the Talaq to be declared as
void-ab-initio.
2.2. Talaq according to Hedaya, in its primitive sense means dismission; in law, it signifies
the dissolution of marriage or annulment of legality by certain words. 24 Talaq is the
divorce proceeding from husband given by him unilaterally, without any reasonable
cause. The Muslim Law prescribes a simple procedure for Talaq, keeping all chances of
reconciliation open. A Talaq strictly following this procedure is Talaq-e-sunnat and
Talaq in Violation of prescribed procedure is Talaq-e-biddat.25
2.3. In Rahmatullah v. State of U.P it was held that, Talaq-ul-biddat or Talaq-i-biddai,
which is an irrevocable divorce given at once, or in one sitting or by pronouncing it at
one Tuhr, in an irrevocable form, without allowing the period of waiting, for
reconciliation or without allowing the will of Allah to bring about reunion by removing
difference or cause of differences and helping the two in solving their differences, runs
counter to the mandate of holy Quran and hence has been regarded as sinful under all
Islam-sunnat. This court observed that an irrevocable divorce is unlawful because this
kind of Talaq was against the dictates of holy Quran and is also against the provisions of
the constitution of India. 26Justice Iyer, held that it to be a practice of popular fallacy
where Muslim male enjoys unbridled authority under Koranic law to dissolve the
marriage unilaterally, whereas the whole Quran expressly forbids a man to seek pretexts
24
B.R verma, Commentaries on Mohameddan Law, 184 (9th ed. 2005).
25
Tahir Mahmood, The Muslim Law of India, 105 (3rd ed.2002).
26
Rahmatullah v. State of U.P.,1994 (iz) Lucknow civil division p. 463.
before divorcing his wife, so long as she remains faithful and obedient to him, not to
seek a way against her. “If they the women obey you, then do not seek a way against
them (IV: 34)”. The Islam law gives to the man primarily the faculty of dissolving the
marriage only when their wives are bad in their character by rendering their marriage life
with unhappiness; but in the absence of such serious reasons, no man can justify a
religion either in the eye of law or of religion. If a man abandons his wife or puts her
away in a single caprice, he is said to draw upon himself the curse of God, was said by
the Prophet referring to one who repudiates their wives capriciously. 27
2.4. Abdur Rahim said that: the interpretation of divorce by the jurists especially of the
Hanafi school, is one flagrant instance where because of literal adherence to mere words
and a certain tendency towards subtleties they have reached a result in direct antagonism
to the admitted policy of the law on the subject.28
2.5. The Quran is divided into ‘Suras’ (chapters). Each ‘Sura’ contains ‘verses’, which are
arranged in sections. Verse 35 of Sura IV mentions that the course of settlement of
family disputes should be done by appointing two arbitrators, one representing the family
of the husband, and the other the family of the wife. The arbitrators were mandated to
explore the possibility of reconciliation. In case when the reconciliation was not possible,
dissolution was advised, without publicity or mud-throwing or by resortment to trickery
or deception.
This principle was applied by a Full bench of Bombay High court in deciding Dagdu
chotu pathan v. Rahimbi Dagdu Pathan and Ors 29that “mere pronouncement of Talaq
by the husband or merely declaring his intentions or his acts of having pronounced the
Talaq is not sufficient and does not meet the requirements of law. In every such exercise
of right to Talaq the husband is required to satisfy the preconditions of arbitration for
reconciliation and reasons for Talaq. Conveying his intentions to divorce the wife are not
adequate to meet the requirements of Talaq in the eyes of law. All the stages of
conveying the reasons for divorce, appointment of arbiters, the arbiters resorting to
conciliation proceedings so as to bring reconciliation between the parties and the failure
of such proceedings or a situation where it was impossible for the marriage to continue,
are required to be proved as conditions precedent for the husband's right to give Talaq to
his wife. It is, thus, not merely the factum of Talaq but the conditions preceeding to this
27
A.Yousuf Rowther v. Sowramma, AIR 1971 Ker 261.
28
Cited in M.R. Zafar, “Unilateral Divorce in Muslim Personal Law”, in Islamic Law in modern India, p.173,
1972.
29
Dagdu Chotu Pathan v. Rahimbi Dagdu Pathan, 2003 (1) Bom CR 740.
stage of giving Talaq are also required to be proved when the wife disputes the factum of
Talaq or the effectiveness of Talaq or the legality of Talaq before the Court of law. Mere
statement made in writing before the Court, in any form, or in oral depositions regarding
the Talaq having been pronounced sometimes in the past is not sufficient to hold that the
husband has divorced his wife and such a divorce is not in keeping with the dictates of
Islam.
2.6. Maulana Mohammad Ali has commented on the above verse that: "This verse lays down
the procedure to be adopted when a case for divorce arises. It is not for the husband to
put away his wife; it is the business of the judge to decide the case. Nor should the
divorce case be made too public. The Judge is required to appoint two arbitrators, one
belonging to the wife's family and the other to the husband's. These two arbitrators will
find out the facts but their objective must be to effect reconciliation between the parties.
If all hopes of reconciliation fail, a divorce is allowed. But the final decision rests with
the judge who is legally entitled to pronounce a divorce. Cases were decided in
accordance with the directions contained in this verse in the early days of Islam. It is
clear that not only must there be a good cause for divorce, but that all means to effect
reconciliation must have been exhausted before resort is had to this extreme measure.
The impression that a Muslim husband may put away his wife at his mere caprice, is a
grave distortion of the Islamic institution of divorce."30
2.7. In our opinion the correct law of 'Talaq' as ordained by Holy Quran is:
(i) that 'Talaq' must be for a reasonable cause; and
(ii) that it must be preceded by an attempt at reconciliation between the husband
and wife by two arbiters, one chosen by the wife from her family and the
other by the husband from his.
(iii) If their attempts fail, 'Talaq' may be effected.31
2.9. Syeda Saiyidin Hameed , a former Indian National Commission for women and founder
of Muslim Women’s Forum said that “the fact of the matter is that we Muslims
selectively practice whatever suits our needs…….we ascribe our actions actions to our
religious sanctions and continuously harp on our religious code. But we blatantly violate
the injunctions of Islam. We pronounce triple talaq without following the commands
30
Maulana Muhammad Ali, The Religion of Islam (6th ed. 1990).
31
Must. Rukia Khatun v. Abdul Khalique (1981) 1 GLR 375.
pertaining to it …. Islam is looked upon by the world as the most anti-gender religion.
For this perception, it is we Muslims who are to be blamed.”32
2.10. It was held in Shamim Ara v. State of U.P the Supreme Court disagreed with the
established principles on the law of written divorce among Muslims, and has ruled that
‘Talaq to be effective has to be pronounced.’ The court said that plea of Talaq taken in
an unsubstanciated written statement submitted before a court not to be accepted as a
proof of Talaq. The term 'pronounce' means to proclaim, to utter formally, to declare, to
utter rhetorically, to articulate a mere plea taken in the written statement of a divorce
having been pronounced sometime in the past cannot by itself be treated as effectuating
Talaq on the date of delivery of the copy of the written statement to the wife. 33A plea of
previous divorce taken in the written statement cannot at all be treated as pronouncement
of Talaq by the husband on the wife on the date of filing of the written statement in the
Court followed by delivery of a copy thereof to the wife. 34 The husband has to prove by
adducing evidence the pronouncement of Talaq. Whereas it is relevant from the
judgments of the above case that the husband ought to adduce evidence and prove the
pronouncement of Talaq, the mere sending of message without the pronouncement of
Talaq will not be valid 35and hence the message sent by the respondent mobile declaring
divorce does not amount to Talaq.
2.11. Hence the counsel appearing on behalf of the petitioner humbly submits that the Talaq
declared by the respondent without any reasonable cause, without any attempt for
reconciliation and any oral pronouncement of Talaq, but by mere written document will
not amount to divorce36 and hence the Talaq declared by the respondent is void ab initio.
II. THAT THE PRACTICE OF TALAQ IS VIOLATIVE OF ARTICLE 14, 15 AND 21 OF THE
INDIAN CONSTITUTION.
2.12. The counsel on behalf of the petitioner humbly submits that the practice of Talaq-e-
biddat is violative of Article 14, 15 and 21 of the Constitution of India. Talaq-e-biddat is
a practice of divorce which instantly and irrevocably severes marital ties thereby
depriving the right of the wife to have a say in the divorce. This is a clear violation of
Article 14.
32
An article by the writer, Syeda Saiyidin Hameeda “Triple Talaq” published in Times of India(New Delhi-late
edi) 14 november 16, 2000.
33
Shamim Ara v. state of U.P., (2002) 7 SCC 518: AIR 2002 SC 619.
34
Iqbal Bano v. State of U.P and ors, AIR 2007 SC 2215.
35
Jiauddin Ahmed v. Anwara Begum, (1981) 1 Gau LR 358.
36
Rukia Khatun v. Abdul Khalik Laskar, (1981) 1 Gau LR 375.
2.13. Article 14 states-“The State shall not deny to any person equality before the law or
the equal protection of the laws within the territory of India Prohibition of
discrimination on grounds of religion, race, caste, sex or place of birth.”37The principle
of equality of law means equality of treatment under equal circumstances 38. The aim of
the article is to ensure that there is no arbitrary discrimination made by the State amongst
citizens who answers the same description and should there be any difference, the same
shall not have any relevance for the purpose of applying the particular law 39 . In the
present practice, Muslim women are discriminated against solely based on sex as the
divorce is unilateral and arbitrary and could be given at the whims and fancies of the
husband without stating a valid reason. While a husband married under the islam law can
unilaterally walk out of a wedlock at his whim a woman married under the Muslim law
has no such provision40
2.13.1. In Ammini E.J. v. Union of India 41 while dealing with the matter as regards to
section 10 of the Indian Divorce Act, the court declared that the concerned section was
much favourable to the husband as compared to the wife and therefore violates article
14 and 15 of the Constitution thereby amounting to discrimination based on sex and
denial of equality on the ground of sex.
2.13.2. In E.P. Royappa v. State of T.N.42, it was held that-“Equality is a dynamic concept
with many aspects and dimensions and it cannot be “cribbed, cabines and confined”
within traditional and doctrinaire limits..... equality and arbitrariness are sworn
enemies... where an act is arbitrary, it is implicit in it that it is unequal both according to
political logic and constitutional law and therefore violative of Article 14.”Talaq –e-
biddat is arbitrary and not in consonance with the most scared doctrine, that is , the
Quran either and therefore is violative of the fundamental rights.
2.13.3. Article 14 prohibits discrimination and no discrimination will be said to have been
committed if the same is on43 -“(i) the classification which is founded on an intelligible
differentia which distinguishes persons or things that are grouped together from others
left out of the group and (ii) that the differentia has a rational relation to the object
sought to be achieved by the impugned legislative or executive action.” In the present
37
Indian constitution,Article 14, 1949.
38
2, D.D. Basu, Commentary on the Constitution of India, 988 (8th ed. 2008).
39
T. Devadasan v. Union of India, AIR 1964 SC 179.
40
A.M. Bhattacharjee, Muslim Law and the constitution, 174 ( 2016 ).
41
Ammini E.J. v. Union of India, AIR 1995 Ker 252.
42
E.P. Royappa v. State of T.N., (1934) 4 SCC 3.
43
Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722.
practice the object sought to be achieved is divorce and it has no rational relation to the
discrimination on the basis of sex as it is not a form of positive discrimination but
degrades the position of Muslim women. In Ramana Dayaram Shetty v. The
International Airport Authority 44 it was stated that wherever arbitrariness exists
irrespective of executive order or legislature Article 14 is violated and it strikes down
such action. It further added that the concept of reasonableness and non-arbitrariness
pervades the entire constitutional scheme and therefore applying by this principle laid
down in Article 14 to this practice, it can be inferred that Talaq-e-biddat on grounds of
being arbitrary and unreasonable is not only violative of Article 14 but also
unconstitutional as well.
2.14. Talaq-e-biddat gives the husband a unilateral right and such a right as observed by the
Supreme Court in Zohara Khatoon v. Mohd. Ibrahim 45 is “especially peculiar to
Mahomedan Law” and no other law vests such a right to divorce the wife by a simple
declaration and the other laws accepts dissolution of marriage on grounds brought about
by either party in a court. This is a clear violation of Article 15 which clearly prohibits
discrimination on grounds of religion, race, caste, sex or place of birth.
2.15. “The State shall not discriminate against any citizen on grounds only of religion, race,
caste, sex, place of birth or any of them. 46”
Talaq-e-biddat does not give any time to the spouses to solve their matrimonial issues, as
the divorce by this form of Talaq is instantaneous in nature, it dissolves the marriage
immediately severing the marital tie forever thereafter. It does not require any reasonable
cause to be mentioned and does not proceed after an attempt to reconcile by two arbiters.
Whereas in other laws the time period is mentioned for reconciliation and the divorce is
granted only through judicial means. In the present practice recognised by Muslim law,
there is no judicial separation involved and the same can take place personally which
places the women in a vulnerable position resulting in the violation of their fundamental
rights
2.16. In Darshan Prasad v. Civil Judge II 47 it was ruled that unless the separation is
brought about by the court, spouses cannot be regarded as judicially separated and
because of the same it is violative of Article 14, 15 and 21. A provision in Indian
Divorce Act (S.17) provided that a decree for the dissolution of marriage had to be
44
Ramana Dayaram Shetty v. The International Airport Authority, (1979) 3 SCC 489.
45
Zohara Khatoon v. Mohd. Ibrahim, AIR 1981 SC 1243.
46
Indian constitution,Article 15 , 1949.
47
Darshan Prasad v. Civil Judge II, Gorekhpur , AIR 1992 SC 967.
confirmed by the the High Court and this provision was only applicable to Christian
couples. For other religions decree for dissolution of marriage were made by the District
Court and did not require any confirmation. This was held to be discriminatory of Article
15 and it was recommended a statutory amendment 48. Under Section 10 of the Indian
Divorce Act, a Christian man could divorce his wife only on the grounds of adultery but
the same was not applicable in case of the wife and she not only had to prove adultery
but also something additional such as cruelty in order to get a divorce. The Bombay High
Court held that it was a clear case of discrimination only based on sex. Moreover that
fact that Christian women could not seek divorce on the grounds of cruelty and desertion
of while women under other system of law could was held discrimination on the basis of
religion49. Applying the same principles in the present practice, the fact that women from
other religions receive time to reconciliation and divorce takes place through judicial
means, it can be concluded that the practice of Talaq-e-biddat is discriminatory towards
the Muslim women on the grounds on religion.
2.17. Talaq-e-biddat also infringes the right to life as guaranteed under Article 21. By this
practice it degrades women as it subjects them to the whims and fancies of men. Article
21 states-“No person shall be deprived of his life or personal liberty except according to
procedure established by law”
Protection against arbitrary privation of “life” no longer means mere protection of death,
or physical injury but also invasion of the right to “live” with human dignity and would
include all those aspects which makes a man’s life meaningful and worth living 50 .In
Rahmatullah v. State of U.P51 it was held that it is practice of divorce which is against
the provisions of the constitution of India because it gives opportunity to the husband to
dissolve the marriage by a single pronouncement without any reason or fault of wife. It is
a mode of divorce which amounts to a “practice derogatory to the dignity of the women.”
2.18. J.S. Verma has stated that “The right to live with dignity is a recognized fundamental
right of the Constitution of India and it is a basic human right inherent in human
existence which is not the gift of any law 52 ”. The practice in question derogates the
position of women and the fact that at any moment a divorce may take place indicates
48
Neena v. John Parmer, AIR 1985 MP 85.
49
Pragati Varghese v. Cyril George Vargheese, AIR 1997 Bom 349.
50
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
51
Rahmatullah v. stae of U.P, U.P civil and Rev. cases reporter 1994 (1) 530 and 612.
52
3, D.D. Basu,Commentary on Constitution of India, 3111 (8th ed. 2008).
that muslim women are at the mercy of muslim men and therefore they are deprived of
their dignity.
2.19. Talaq-e-biddat is not protected under articles 25(1), 26(b) and 29. Article 25 states
“subject to public order, morality and health and to other provisions of this Part, all
persons are equally entitled to freedom of conscience and the right freely to profess,
practise and propagate religion. 53 ” Article 26(b) states “Subject to public order,
morality and health, every religious denomination or any section thereof shall have the
right to manage its own affairs in matters of religion. 54 ”Article 29 states “ (1) Any
section of the citizens residing in the territory of India or any part thereof having a
distinct language, script or culture of its own shall have the right to conserve the same.
(2) No citizen shall be denied admission into any educational institution maintained by
the State or receiving aid out of State funds on grounds only of religion, race, caste,
language or any of them.55”
2.19.1. The aforementioned sections protect the practices of all religious communities in
India. However, restrictions can be imposed on them on the grounds of (i) public order,
morality and health; (ii) other provisions of Part III of the Constitution; (iii) regulating
non-religious activity associated with religious practice; (iv) social welfare and reform;
(v) throwing open Hindu religious institutions of public character to all classes of
Hindus56.
2.19.2. In Sate of Bombay v. Narasu Appa Mali 57 the court observed: “A sharp distinction
must be drawn between religious faith and belief and religious practices. What the State
protects is religious faith and belief. If religious practices run counter to public order,
morality or health or a policy of social welfare upon which the State has embarked, then
religious practices must give way before the good of the people of the state as a whole”.
2.19.3. The freedom to practice religion cannot be seen in isolation and is required to co-exist
harmoniously with other fundamental rights 58 . Article 25(1) protects those essential
practices of a religion without which it would in effect nullify and render meaningless
the entire guarantee of religious freedom59.
53
Indian constitution, Article 15, 1949.
54
55
56
Venkataramana v. State of Mysore,AIR 1958 SCR 895.
57
State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84.
58
Acharya Maharaj Sri Narendra Prasadji Anandprasadji Maharaj v. State of Gujarat,AIR 1974 SC 2098.
59
Sardar Syedna Taher Saifuddin Saheb v. State of Bombay,AIR 1962 SC 853.
2.19.4. In A.S. Narayana Deekshitulu v. State of A.P.60 it was stated: “Though religious
practices and performances of acts in pursuance of religious belief are as much a part of
religion as faith or belief in a particular doctrine that by itself is not conclusive or
decisive. What are essential parts of religion or religious belief or matters or religion
and religious practice is essentially a question of fact to be considered in the context in
which the question has arisen and the evidence- factual or legislative or historic –
presented in that context is required to be considered and a decision reached.”
2.20. The right to religion guaranteed by Articles 25 and 26 is not absolute or unfettered
right to propagate religion which is subject to legislation by the State limiting or
regulating every non-religious activity61. Therefore Talaq-e-biddat cannot be protected
under Articles 25 and 26 because the articles only protect such rights which are essential
to the religion and without which the religion would nullify and Talaq-e-biddat is not
recognised in Quran and therefore cannot be regarded as an essential element of the
religion.
2.21. Mere fact of its association with the practice of religion even if it has been observed
since time immemorial is not a conclusive test of its religious character. Discrimination
on the basis of caste system even though a practice since time immemorial has been
declared violation of fundamental rights for the same reason 62. In M. Ajmal Khan v.
The Election Commission of India63 the court held that even though purdah was an
essential ingredient of Muslim religion, it had to be regulated in the interest of public
order, morality or health and also other provisions of Part III of the constitution. As long
as the Practice does not infringe the religious right and personal freedom of others, the
practice is protected by the constitutional scheme 64 . It was while dealing with the
sacrifices of animals during BakrI’d it was held that an optional religious practice is not
covered by Article 25(1)65.
In C.F Ratilal v. State of Bombay66, the Supreme Court held that the personal laws did
not form any part of any religion but are appertained to secular practices associated with
religion and therefore they are not kept outside regulation by law by the gurantee under
article 25(1).
60
A.S. Narayana Deekshitshulu v. State of A.P.,(1996) 9 SCC 548.
61
Shri Adi Visheshwara of Kasi Viswanath Temple v. State of U.P., (1997) 4 SCC 606.
62
6, D.D. Basu, Commentary on constitution of India, 5324 ( 8th ed. 2008).
63
M. Ajmal Khan v. The Election Commission of India,(2007) 1 MLJ 91.
64
Lily Thomas v. Union of India,AIR 2000 SC 1650.
65
State of W.B. v. Ashutosh Lahiri,(1995) 1 SCC 189.
66
C.F Ratilal v. State of Bombay,AIR 1954 SC 388.
2.22. Therefore counsel on behalf of petitioner submits that ‘personal laws’ can be
regulated on violation of fundamental rights because even though it is a religious practice
which is said to be protected under article 25 and 26 should be given way to social
reform according to enlightened conscience of modern times.67
67
Khatji v. Abdul, AIR 1977 J&K 44.
3. THAT UNIFORM CIVIL CODE SHOULD BE IMPLEMENTED IN INDIA.

3.1. The present issue was raised owing to legal battle between Sanaya Begum and Rizwan
Ahmed. Rizwan Ahmed who married three other women subsequently, started
neglecting Sanaya Begum and her children later, then divorced her in the presence of two
witnesses by practicing Talaq-e-biddat. The petitioner Sanaya Begum has approached
this court pleading for the enactment of uniform civil code that would govern the entire
country and eliminates such outdated practices under personal laws affecting unity and
nationality.
3.2. The main objective of article 44 of the Indian constitution is to introduce a uniform
personal law for the purpose of national consolidation. It proceeds on the assumption that
there is no necessary connection between religion and personal law in a civilized society.
While the constitution guarantees freedom of conscience and of religion, (Article 25), it
seeks to divest religion from personal law and social relations and from laws governing
inheritance, succession and marriage, just as it has been done even in Muslim countries
like Turkey or Egypt. The object is not to encroach upon religious liberties. (2)(a) of
Article 25 already reserves such right of the state.68
3.3. In Mohd. Ahmed Khan v Shah Bano Begum69, it was observed that: “It is also a matter
of regret that article 44 of our constitution remained a dead letter. It provides that “The
State shall endeavor to secure for the citizens a Uniform Civil Code throughout the
territory of India”. A belief seems to have gained that it is for the Muslim community to
take a lead in the matter of reforms of their personal law. A common civil code will help
the cause of the national integration by removing desperate loyalties to laws which have
conflicting ideologies. No community is likely to bell the cat by making gratuitous
concessions on the issue. It is for the State which is charged with duty of securing a
Uniform Civil Code for the citizens of this country and unquestionably, it has legislative
competence to do so. A counsel in this case whispered, somewhat audibly, that
legislative competence is one thing, the political courage to use that competence is quite
another. We understand the difficulties involved in bringing persons of different faiths
and persuasion on a common platform. But a beginning has to be made if the constitution
is to have any meaning. Inevitably, the role of the reformer has to be assumed by the
courts because; it is beyond the endurance of sensitive minds to allow injustice to be
suffered when it is so palpable. But, piecemeal attempts of courts to bridge the gap
68
3, D.D.Basu, Commentary On The Constitution Of India, 4132 (8th ed. 2008).
69
Mohd. Ahmed Khan v. Shah Bano Begum, 1985 SCR (3) 844.
between personal laws cannot take the place of a common civil code. Justice to all is a
far more satisfactory way of dispensing justice form case to case.”
3.4. In Sarla Mudgal v Union of India70, while insisting the need for a Common Civil Code,
the court held that fundamental rights relating to religion of members of any community
would not be affected thereby. It was held that personal law having been permitted to
operate under authority of legislation, the same can be superseded by a Uniform Civil
Code. Article 44 is based on the concept that there is no connection between religion and
personal law. Marriage, succession and other like matters of a secular character cannot
be brought within the guarantee enshrined under article 25, 26 and 27. Learned judges
also “requested” the Prime Minister of India to have a fresh look at Article 44 and
“endeavour to secure for the citizens a Uniform Civil Code throughout the territory of
India” and wanted the court to be informed about the steps taken. But in Lily Thomas v.
Union of India 71 court clarified the remarks made in Sarla Mudgal`s case only as an
opinion of the Judge and declared that no directions have been issued for any legislation.
At the same time, the court did not express any dissenting view on the need for a
common civil code.
In SR v Bomai72, it was upheld that power of Parliament to reform and rationalise the
personal law is unquestioned and the command of Article 44 is yet to be realised.
3.5. In Jorden Dienghdesh v SS Chopra, it was observed: “…the law relating to judicial
separation, divorce and nullity of marriage is far, far from uniform. Surely the time has
come for a complete reform of the law of marriage and makes a uniform law applicable
to all people irrespective of religion or caste. We suggest that time has come for the
intervention of the legislature in these matters to provide for a uniform civil code of
marriage and divorce.73
3.6. The counsel believes that breakdown of a marriage and divorce should happen by a
mutual consent of both the spouses and consent should be made uniformly in respect to
dissolution of the marriage irrespective of their religious faith. The Supreme Court in the
case of Naveen Kohli v. Neelu Kohli74, permitted dissolution of a 30 year old mismatch
marriage and urged the govt. of India to amend and reform Hindu Marriage Act with a
view to make irretrievable breakdown of a marriage a valid ground of divorce.
70
Sarla Mudgal v. Union of India,AIR 1995 SC 1531.
71
Lily Thomas v. Union of India,2000 (2) ALD Cri 686.
72
SR v Bomai,AIR 1994 SC 1918.
73
Jorden Dienghdesh v. SS Chopra,AIR 1985 SC 935.
74
Naveen Kohli v. Neelu Kohli,(4) SCC 558 (2006).
3.7. Alladi Krishnaswamy Iyer said: That a civil code runs into every department of civil
relations, to the law of contracts, to the law of property, to the law of succession, to the
law of marriage and similar matters and there can be no objection to the general
statement that the state shall endeavor to its citizen a uniform civil code throughout the
territory of India. He said that the article aims at amity, it does not destroy amity. The
idea is that differential systems of inheritance and succession and other matters are some
of the factors which contribute to the differences among the different peoples of India.
What it aims is to try to arrive at common measure agreement in regard to these And
there was no danger to religion and the communities can live in amity if there is a
Uniform civil code. 75
3.8. Mr. M.C. Chagla said while emphasizing the necessity for a common civil code in a
paper on Art.44 that: It is a mandatory provision binding the government, and it is
incumbent upon it to give effect to this provision ….The constitution was enacted for the
whole country, it is binding on the whole country ; and every section and community
must accept its provision and its directives.”76
In John Vallamattom v Union of India77, V.N. Khare, CJI (with whom the other two
judges Sinha and Lakshman Ji) agreed and said: “A Common Civil Code will help the
cause of national integration by removing all contradictions based on ideologies”.
3.9. Dr Tahir Mahmood in his book on “Muslim Personal Law” 1997 edition, pp 200-02, has
made a powerful plea for framing a Uniform Civil Code for all the citizens of India. He
says: “In pursuance of the goal to secularism, the State must stop administering religion
based on personal law” and made an appeal to the Muslim community thus: “Instead of
wasting their energies in exerting theological and political pressure in order to secure an
“immunity” against their traditional personal law, on State`s legislative jurisdiction, the
Muslims will do well to begin exploring and demonstrating how the true Islamic Laws,
purged of their own time-worn and anachronistic interpretations, can enrich the Common
Civil Code in India”
3.10. Mr. P.B Gajendragadkar in his book “Secularism and the constitution of India” 1971
edition, at page 126 said that: In any event, the non-implementation of the provision
contained in Art.44 amounts to grave failure of Indian democracy and the sooner we take
suitable action in that behalf, the better it is.”
75
VII, Constitutional Assembly Debates Official Report,4th reprint 2003.
76
Weekly Round Table, March 26, 1973.
77
John Vallamattom v. Union of India, W.P.(Civil) 242 of 1997.
3.11. The counsel strongly believes that nationhood has to be symbolised by one
Constitution, one flag, single citizenship and common law applicable to all citizens and
there is a strong need for the Parliament to frame a Common Civil Code uniformly
applicable to all the citizens of the country which will result into National Integration by
removing all the clashes and contradictions based on ideologies. This is the time to place
personal laws of all religions under one umbrella and reject such laws and provisions
which violate the essence of the Constitution. Almost all personal laws of all religions
discriminate against women on matters of marriage, divorce, inheritance and succession
and there is an urgent need to bring out and frame equitable laws for all the religions and
formulate a Uniform Civil Code based on gender justice.
3.12. The counsel now sums up the argument by saying that for citizens belonging to
different religions, it is pertinent to note that in order to promote national unity and
brotherhood, a Unified Code is an absolute necessity and there can be no compromise
upon the same. All the different streams of religion have to be merged to a common goal
and a common destination with respect to this, some unified principles and laws must
emerge into the spirit of secularism.
4. THAT THE FIFTH MARRIAGE WHICH TOOK PLACE BETWEEN RIZWAN AHMED AND
AFREEN REHMAN IS VOID.
I. THAT THE MARRIAGE BETWEEN RIZWAN AHMED AND SANAYA BEGUM WAS STILL
IN EXISTENCE WHEN HE MARRIED AFREEN REHMAN.
4.1. Rizwan Ahmed divorced his first wife Sanaya Begum by Declaring Talaq three times on
10.2.18 and while she was still observing Iddat, he got attracted to a dancer at a club and
he took her to a posh hotel and raped her. He then married her by performing Nikah
through a simple ceremony.
4.2. The counsel on behalf of the petitioner humbly submits that the marriage between
Rizwan Ahmed and Sanaya Begum was still in existence at the time when Rizwan
married Afreen Rehman because the period of Iddat was still going on. Therefore the
marriage between Rizwan Ahmed and Afreen Rehman is irregular or invalid.
4.3. Iddat literally means ‘Numeration’ which in Mohameddan law signifies the period of
abstinence which a woman has to observe on dissolution of her marriage. The women
under following Muslim law should undergo such probation when her marriage has been
dissolved, after consummation, by divorce of any kind. 78
4.4. A marriage which is not wholly lawful i.e which is contracted in violation of some legal
requirement is regarded as irregular or invalid. Though this type of marriage is
considered to be irregular under Hanafi law it is considered to be as void under shia
law.79 This type of marriage is considered as illegal due to inherent effect.80 Bailee has
translated the word ‘Fasid’ as invalid which in English also means void. Because of this
eventuality fasid has been translated as irregular. 81 Therefore the marriages which are not
altogether void are irregular marriages.
4.5. It was held in Shahulameeda v. Subaida Bebee82, that the fifth marriage entered into by
a Muslim male while his four wives are living will make the marriage irregular. And
therefore the counsel on behalf of petitioner submits that the marriage that took place
between Rizwan and Afreen during the period of Iddat of Sanaya Begum is
irregular 83which is not a valid marriage.
78
Dr. S.R Myneni, Muslim Law,190 (1st ed. 2009).
79
Tahir Mahmood, The Muslim Law of India, 63 (3rd ed. 2002).
80
Dr. M.A Qureshi, Muslim Law, 46 (3rd ed. 2007).
81
Mulla ,p 257.
82
Shahulameeda v. Subaida Bebee, 1970 MLJ Cr 562.
83
Mohd. Hayat v. Mohd. Nawaz, AIR 1929 PC 212.
II. THAT RIZWAN AHMED SHOULD BE PROSECUTED FOR KIDNAP AND RAPE.
4.6. The counsel on behalf of petitioner humbly submits that the respondent should be
prosecuted for kidnap and rape.
4.7. The Respondent kidnapped Afreen Rehman and raped her in a posh hotel. On being
persuaded by the respondent, Afreen married the respondent. The rape being committed
by Rizwan Ahmed on Afreen Rehman before entering into marital relationship with her,
therefore the defence of marital rape cannot be taken by the Respondent.
4.8. Article 32 gives the right to enforce fundamental rights not only against a State but
against a private person as well. . In Karamjeet Singh v. Union of India, it was held
that a “next friend” can be permitted to file a writ petition for a person who is a minor or
suffering from ‘disability’ as recognised by law 84. It is not only the right of an individual
to approach the court but also the duty of the court to protect or enforce the fundamental
rights where the existence of a fundamental right and its breach is in actuality or is
threatened prima facie85 . In the present case Afreen has not only been raped which is a
clear violation of Article 21 but was also been persuaded by relatives to marry her rapist
which is a breach of the right to live with dignity. Protection against arbitrary privation
of “life” is not just restricted to protection from death or physical injury but also the
protection of dignity of a person86.
4.9. In Bodhisattwa Gautam v. Subhra Chakraborthy, the court has held that rape is the
most hated crime. It is a crime against basic human rights and is also violative of the
victim's most cherished of the Fundamental Rights, namely, the Right to Life contained
in Article 21. It also held that the enforcement of fundamental right is in itself a
fundamental right. The rape victim in was awarded compensation till the completion of
the trail in a proceeding under Article 32. In Chairman, Railway Board v. Chandrima
Das the Court had rejected the contention that rape fell only under private law. It relied
on the judgement of Subhra Chakraborthy case and stated that in the case concerned it
was a violation of article 21 and compensation was granted to the rape victim 87.
4.10. The Respondent in their affidavit have denied committing rape. However mere
disputed question of fact will not bar the Court from dwelling into the matter if there is a
prima facie breach of fundamental right. In K.K. Kochunni v. State of Madras88 the
84
Karamjeet Singh v. Union of India,AIR 1993 SC 284.
85
Kochunni v. State of Madras,AIR 1959 SC 725.
86
Francis v. Union Territory,AIR 1981 SC 746.
87
Chairman, Railway Board v. Mrs. Chandrima Das,2000.
88
K.K. Kochuni v. State of Madras,AIR 1959 SC 725.
Supreme Court held that since the right to approach the court is itself a guaranteed right,
once a petitioner has prima facie established that there has been a breach of fundamental
rights the court is bound to hear the matter on its merits and it would not be justified in
rejecting the petitioner under Article 32 on the simple ground that it involved
determination of disputed question of fact. Hence it can be inferred that the Supreme
Court is not barred from taking evidence of any witness by issuing commission or
examining witness in court where necessary because the fundamental rights are affected.
In exercise of an inherent power and for the purpose of effectively discharging its duty to
enforce fundamental rights the court may appoint commission for the purpose of
investigation and gathering all the facts and data in regard to the complaint of breach of
fundamental right where the petitioner is unable to gather relevant evidence 89.
4.11. In Kailash Nath v. State of U.P., the court rejected the preliminary objection with
regards to disputed question of fact and stated 90 :“..... we do not countenance the
proposition that, on application under Article 32, the court may decline to entertain the
same on the simple ground that it involves the determination of disputed questions of
fact or on any ground....If we were to accede to the aforesaid contention.... we should be
failing in our duty as the custodian and protector of fundamental rights”
4.12. It has been mentioned in the Law Commission Report 91–“Das, C. J., said that neither
the existence of an adequate alternative remedy, nor the fact that the petition raised disputed
questions of fact, justiﬁed the rejection of a petition under article 32, if it established a prima
facie case of actual or threatened violation of fundamental rights. The Chief Justice said that
ordinarily, disputed question of fact could be decided on affidavits. In some cases, the court
may consider it desirable to allow the parties to put in further affidavits, or may issue a
commission, or set down the petition for trial on the evidence, and this had been
frequently done on the Original Side of the Calcutta and Bombay High Courts.”
4.13. The court also can not reject the petition on the ground that the application was first
made to Supreme Court without resorting to High Court first or that an alternate remedy
exists92. Therefore on the grounds that there has been a prima facie violation of article 21
and the respondent has the locus standi to claim the relief even though she is not directly
affected by it, the matter falls under the jurisdiction of Article 32 and Rizwan Ahmed
should be prosecuted and punished.
89
Bandhu Mukti Morcha v. Union of India,AIR 1984 SC 802.
90
Kailash Nath v. State of U.P.,AIR 1957 SC 790.
91
58th Law Commission Report,Structure and Juridicature of Higher Judiciary.
92
Bandhu Mukti Morcha v. Union of India,AIR 1984 SC 802.
5. THAT BIGAMY IS UNCONSTITUTIONAL.

I. THAT BIGAMY IS VIOLATIVE OF ARTICLE 14 OF THE INDIAN CONSTITUTION
RESULTING IN ITS UNCONSTITUTIONALITY.
5.1. Article 14 of the Constitution states that – “The State shall not deny to any person
equality before the law or the equal protection of the laws within the territory of India.”
5.2. Articles 14 to 18 constitute the right to equality. The makers of the Indian Constitution
knew that widespread social and economic inequalities, often sanctioned by law or
public policies or exercise of public power, supported by religion and other social norms
and practices, existed and flourished. The right to equality in the Constitution of India is
not merely a negative right not to be discriminated against, but also a positive right to be
treated as an equal. Article 14 guarantees to every person, including non-citizens and
transgenders, the right to equality before the law or the equal protection of the laws. It
means that all are equally subject to the ordinary laws of the land. 93
5.3. The first expression “equality before law”, which is said to have been taken from the
English common law, is a declaration of equality of all persons in the eyes of law,
implying absence of special privilege in any individual. This expression is equal to the
second corollary of the ‘Dicean’ concept of the rule of law. According to Dicey, rule of
law has three meanings out of which second is equality before law. First is – ‘absence of
arbitrary power or supremacy of the law’. Second is – ‘equality before the law’. Third is
– ‘the Constitution is the result of the ordinary law of the land.’ Equality before law is
not an absolute rule. It is a negative concept. Equal protection of laws is a positive
concept. It is based on the last clause of first section of the 14 th Amendment to the
American Constitution which was incorporated in the year 1868. It does not mean that
identically the same laws should apply to all persons. It means application of same laws
alike and without discrimination to all persons similarly situated. No two human beings
are similar in all respects, they are all similar in one respect that they are human beings.
5.4. Underlying principle of Article 14 is that it forbids class legislation but it does not forbid
reasonable classification. Article 14 does not negate classification, it permits it. It forbids
class legislation but it does not forbid reasonable classification. 94
5.5. Test for Reasonable Classification - In order to pass the test for permissible
classification, two conditions must be fulfilled, namely, 1) the classification must be
founded on an intelligible differentia which distinguishes persons or things that are
93
V.N. Shukla,Constitution of India (11th ed. 2017).
94
M.P Jain, Indian constitutional law (7th ed. 2016 ).
grouped together from others left out of the group; and 2) the differentia must have a
rational relation to the object sought to be achieved by the statute in question. 95 The
Supreme Court in the case of Budhon v. State of Bihar also held that the differentia
which is the basis of the classification and the object which the legislature wants to
achieve are two distinct things. It is only when there is no reasonable basis for the
classification that legislation making such classification may be declared discriminatory.
For example, Article 303 of IPC classifies between life convicts and others. 96
5.6. A classification to be valid must necessarily satisfy two tests. Firstly, the distinguishing
rationale has to be based on just objective. And secondly, the choice of differentiating
one set of persons from another must have a reasonable nexus to the objective sought to
be achieved. 97 The object cannot be any object; it must be lawful. In Subramanian
Swamy v. CBI 98 , the court had unanimously held that “if the object itself is
discriminatory, then explanation that classification is reasonable having rational relation
to the object sought to be achieved is immaterial.” Classification based on language,
religion, race, sex or place of birth is not permissible. 99
5.7. In the present case at hand, bigamy is prohibited under section 494 of the IPC but is still
allowed and practiced by the people of Muslim religion. Bigamy or polygamy as
practiced by Muslim males negates the equality clause as only males are allowed to keep
four wives but females aren’t. Keeping four wives at a time is inhuman as one or the
other neglected or ill-treated which is clear from the facts of the present case that Rizwan
had started neglecting his first wife and her children. 100 The present case does not come
under the purview of reasonable classification as men and women cannot be called to be
different from each other as both of them are human beings and are equal in atleast that
respect. This is prima facie discriminatory and as expressed by various cases earlier that
when object is itself discriminatory then the classification whether reasonable or not is
immaterial and in this case the object to give man more authority over woman in a
marriage is itself discriminatory.
5.8. Equality in Article 14 has acquired new and important dimensions. In the case of E.P.
Royappa v. State of Tamil Nadu, the Supreme Court challenged the traditional concept
of equality based on reasonable classification and laid down a new concept of equality in
95
Budhon v. State of Bihar,AIR 1955 SC 194.
96
Mithu singh v. State of Punjab,1983 SCR (2) 690.
97
V.N Shukla, Constitution of India ( 11th ed.2017).
98
Subramanian Swamy v. CBI,(2014) 8 SCC 682.
99
State of kerala v. T.P. Roshana and Anr,1979 SCR (2) 974.
100
Facts on record.
the following words- “Equality is a dynamic concept with many aspects and dimensions
and it cannot be ‘cribbed, cabined and confined’ within traditional and doctrinaire limits.
From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality
and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while
other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is
implicit in it that it is unequal both according to political logic and constitutional law and
is therefore violative of Article 14.” Seervai 101 had exclaimed that Bhagwati, J. In
Royappa case evolved a new concept of equality. The new concept of equality was
reiterated by Supreme Court in the judgement of Maneka Gandhi102.
5.9. In Shrilekha 103 , the court observed that –“the question, whether an impugned act is
arbitrary or not, is ultimately to be answered on the facts and in the circumstances of a
given case. Every State action must be informed by reason and it follows that an act
uninformed by reason, is arbitrary.” The new clause of arbitrariness was reiterated by the
Supreme Court in the judgement of Maneka Gandhi Case104.
5.10. In the present case, bigamy or polygamy as practiced by Muslim males is arbitrary as
it is purely whimsical and not based on any reason. Muslim males can marry more than
once according to their own whims and fancies but Muslim females cannot marry more
than once according to their choice. Although such a distinction is provided by the Quran
but Quran does not impose a condition on the Muslim males to compulsorily marry four
women. It is according to their choice whether they want to or not and this is violative of
the equality clause described under article 14.
5.11. Therefore, it is contended that bigamy is violative of article 14 of the Indian
Constitution.
II. THAT BIGAMY IS ALSO VIOLATIVE OF ARTICLE 21 OF THE INDIAN CONSTITUTION

5.12. Article 21 of the Constitution states that “No person shall be deprived of his life or
personal liberty except according to procedure established by law”.
5.13. The right to life which is the most fundamental of all is also the most difficult to
define. By the term “life”, as here used, something more is meant than mere animal
existence. The inhibition against its deprivation extends to all those limbs and faculties
by which life is enjoyed. The provision equally prohibits the mutilation of the body by
101
H.M Seervai, Constitutional law of India (2006).
102
103
Kumari Srileka Vidyarthi Etc…..v. State of U.P And Ors, (1991) 1 SCC 212.
104
the amputation of an arm or leg, or the putting out of an eye, or the destruction of any
other organ of the body through which the soul communicates with the other world.105
5.14. This statement has further been expanded in Francis Coralie Mullin v. UT of
Delhi,106 “that we think that the right to life includes the right to live with human dignity
and all that goes along with it, namely, the bare necessaries of life such as adequate
nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in
diverse forms, freely moving about and mixing and commingling with fellow human
beings.”
5.15. For some time, the court held the view that the right to life in Article 21 does not
include the right to livelihood.107 After some controversy, the court held that the right to
livelihood is included in the right to life “because no person can live without the means
of living, that is, means of livelihood.”
5.16. The expression “personal liberty” has a very wide meaning. It takes in all the
freedoms that a human being is expected to have. The expression is not confined to mere
freedom from bodily restraint, and “liberty” under law, but extends to the full range of
conduct which the individual is free to pursue.108
5.17. The expression “procedure established by law” was initially interpreted as procedure
prescribed by the law of the State. Accordingly, it required, firstly, the existence of an
enacted law authorising interference with the life or personal liberty, secondly, the law
should be valid, and thirdly, the procedure laid down by the law must be followed. In the
absence of non-compliance of any of these conditions any deprivation of life or personal
liberty of a person by any authority violates Article 21. This interpretation was taken to
its logical end in ADM Jabalpur v. Shivkant Shukla 109, where the Supreme Court held
that Article 21 was the sole repository of the right to life and personal liberty against its
illegal deprivation by the executive. The Supreme Court in Maneka Gandhi v. Union of
India110 , established a relationship between articles 14, 19 and 21. It said that the law
prescribing a procedure for depriving a person of “personal liberty” will have to meet the
requirement of Article 21 and also 19 and 14. The principle of reasonableness, which is
an essential element of equality or non-arbitrariness pervading Article 14, must also
105
Mumm v. Illinois, 94 US 113 (1877).
106
Francis Coralie Mullin v. U.T of Delhi,(1981) 1 SCC 668.
107
A.V. Nachane v. Union of India,(1982) 1 SCC 205.
108
V.N Shukla, Constitution of India (11th ed.2017).
109
ADM Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521.
110
Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
apply to the “procedure”, that is, the procedure must be “right, just and fair”, and not
“arbitrary, fanciful or oppressive”.
5.18. In the present case at hand, the right to life or the right to live with human dignity of
Sanaya Begum was denied by Rizwan as he had stopped maintaining her which is the
right of a Muslim female. Moreover, he has started neglecting her as he has married
other women which led to her ill-treatment. Further, bigamy or polygamy as practiced by
Muslim males is not according to the procedure established by law since it is given to
them by Quran or observed through Hadiths and is not according to the procedure
established by the State legislature. Hence, bigamy is violative of Article 21.
5.19. Therefore, in light of the above arguments it is submitted before this Hon’ble court
that bigamy is violative of Article 14 and 21 of the Constitution and as such bigamy shall
be held to be unconstitutional and void because any law which is violative of Part III of
the Constitution is held to be void.111
111
PRAYER
Therefore, in the light of the facts stated, issues raised, authorities cited and arguments
advanced the counsel for the petitioner humbly prays before the Honorable Supreme court to
declare:
1) That the writ petition filed by the petitioner under Article 32 of the Indian constitution is
maintainable.
2) That the Talaq under section 2 of Shariat Act is unconstitutional.
3) That the uniform civil code should be implemented in India.
4) That the fifth marriage which took place between Rizwan Ahmed and Afreen Rehman is
void.
5) That the Practice of Bigamy is Unconstitutional.
And pass any other order or relief which the court deems fit in the interest of justice, equity
and good conscience.
All of which is humbly submitted and affirmed.
Date: 29.10.2018
For This Act of Kindness, the Petitioner Shall Duty Bound Forever Pray.
Sd/-………..…/…..…………
(Counsel for Petitioner)

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M-136

4th MANIPAL RANKA NATIONAL MOOT COURT COMPETITION 2018

BEFORE THE HONORABLE SUPREME COURT OF INDIA

WRIT PETITION NO: WP(C) 27/ 2018

UNION OF INDIA AND ORS………………………………………….RESPONDENT

ON SUBMISSION TO THE HONOURABLE SUPREME COURT OF INDIA UNDER

ARTICLE 32 OF THE CONSTITUTION OF INDIA

MEMORIAL SUBMISSION ON BEHALF OF PETITIONER

1. 1, 2,3 AND 6 D.D BASU, COMMENTARIES ON THE INDIAN CONSTITUTION (LEXIS

17. V.N SHUKLA, CONSTITUTION OF INDIA (EASTERN BOOK COMPANY 2017).

1. A.L. Kalra v. Project and Equipment Corpn., (1984) 3 SCC 316.

29. Kartar singh v. State of Punjab, (1994) 3 SCC 569.

CONSTITUTIONAL ASSEMBLY DEBATES:

LAW COMMISSION REPORT

A.I.H.C All India High Court Cases

2. THAT THE TALAQ UNDER SECTION 2 OF SHARIAT ACT IS UNCONSTITUTIONAL.

5. THAT BIGAMY IS UNCONSTITUTIONAL

15 of the Constitution thereby amounting to discrimination based on sex and denial of

2. THAT THE TALAQ UNDER SECTION 2 OF SHARIAT ACT IS UNCONSTITUTIONAL.

3. THAT UNIFORM CIVIL CODE SHOULD BE IMPLEMENTED IN INDIA.

5. THAT BIGAMY IS UNCONSTITUTIONAL.

II. THAT BIGAMY IS ALSO VIOLATIVE OF ARTICLE 21 OF THE INDIAN CONSTITUTION

All of which is humbly submitted and affirmed.

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