3RD NATIONAL MOOT COURT COMPETITION, 2024

STATEMENT OF FACTS

Neverland is a democratic republic whose Constitution enshrines the qualities of liberty,

equality, fraternity and secularity. It has the world’s biggest population which consists of
persons from many cultures and communities, all living together harmoniously.

Neverland was subject to a 200-long year colonial rule under Springfield. Springfield had
control over not just the socio-economic fabric of the country but also aimed at decolonializing
its culture and habits. In furtherance to the same, many laws were passed during the colonial
rule which had the effect of curbing the rights of certain sections of the society.

One such section of the society is the LGBTQ+ community, who had received recognition in
Neverland only in the year 2018 when the Supreme Court of Neverland had struck down certain
provisions of its penal law which penalized homosexual relationships. However, the
judgement’s effected was limited to the same and did not go on any further, thus leaving out of
its ambit the widely-debated topic of homosexual marriages.

Cameron and Mitchell

On 30-12-2022, Cameron and Mitchell, a homosexual couple residing in Hogsmeade, the

capital city of Neverland, had filed an appeal before the Hogsmeade High Court against an
Order of the Family Court, Hogsmeade which dismissed a case filed by them against an Order
of the Registrar of Marriages, who had refused to grant them a marriage certificate under the
Special Marriages Act, 1954 (hereinafter “1954 Act”), on the ground that homosexual
marriages were not permitted in Neverland. The said appeal was dismissed by the High Court
and vide Order dt. 04.09.2023, it upheld the finding that homosexual marriages are not
permitted in Neverland, even under the provisions of the 1954 Act. Aggrieved, the parties seek
to the Supreme Court via appeal, filed on 11.09.2023.

Holt and Kevin

On 01.02.2023, Kevin C., a professor residing in King’s Landing, a state of Neverland,

appealed to the King’s Landing High Court against an Order of the Family Court of King’s
Landing, which refused to direct Kevin’s partner Holt R. to pay maintenance to him. The
Family Court’s Order was based on the grounds inter alia that maintenance cannot be sought
by a homosexual couple as there is no valid marriage which subsists between the parties.

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On appeal before the High Court, Kevin argued that his relationship with Holt ought to be
recognized as one having the nature of a marriage and hence, he is entitled to maintenance,
which is a right of a married party who are unable to maintain themselves.

The appeal was dismissed by the High Court vide Order dt. 10.10.2023. The High Court noted
that there is no provision in any matrimonial law including the Special Marriage Act, 1954,
which permitted payment of maintenance to parties in a homosexual relationship,
notwithstanding the fact that their relationship is in the nature of a marriage. Aggrieved, the
Kevin C. appealed to the Supreme Court, on 13.10.2023.

The LGBTQ Welfare Society

The LGBTQ+ Welfare Society is a registered not-for-profit organization formed to further the
interests of the members of the LGBTQ+ community. The community, based on voluminous
research on homosexual marriages, decided to file a writ petition before the Supreme Court on
28.02.2023, claiming that it needs to recognize validity of homosexual marriages. Inter alia,
the Society argued that the rights of homosexual persons have been recognized in Neverland
and further that they are entitled to the rights of persons in a ‘live-in relationship’, which
therefore means that they are also entitled to matrimonial rights, because ‘live-in relationships’
have been recognized as relationships in the nature of marriage.

The Society further raised the grounds of manifest discrimination against the LGBTQ+
community, which they state cannot be permitted in a country whose Constitution guarantees
equality and equal protection of laws to all. In this light, the society requested the Court to
formulate guidelines pertaining to same-sex marriage, as a corollary to the recognition of its
legal validity.

In the first hearing of the matter which was listed on 03.08.2023, the Court noted that there
were two other matters pending on its file relating to the same substantial question of law and
hence ordered the registrar to club the matters together.

In the subsequent hearing on 22.08.2023, the Court identified that the issue was fit to be heard
by a larger bench and accordingly, reference was made to the Chief Justice of Neverland, who
formed a constitutional bench to hear the matter. In the first hearing of the constitutional bench
on 25.09.2023, the Court noted the preliminary objection raised by the Union and decided to
include it as part of the issues to be determined.

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The Winterfell Riots

On 03.10.2023, members of the LGBTQ+ community gathered at the center of the city of
Winterfell, for a 10-mile rally for recognition of same-sex marriage by the Supreme Court. The
rally was based on the order of the Supreme Court to club the matters relating to same-sex
marriage.

As the rally was progressing, three men aged around 25 years began to yell slogans targeting
the incumbent Union Government, whereby they alleged that the Government was homophobic
and that its continuance at the Centre was bound to destroy the rights of the community.

A few other members of the rally joined in the sloganeering against the government and
subsequently, members of the rally began to break public property and facilities with hockey
sticks, golf sticks, etc. A government bus which was passing by was halted, the passengers
made to exit it and then, was set on fire by the protestors. Upon receiving information of the
protests, the emergency squad of the regional police quickly assembled at the protest site and
warned the protestors to stop, failing which they would be forced to arrest them.

When the warnings of the police were not paid heed to, the police officers began to use force
on the protestors and arrested people by forcefully making them get into the police vans. The
police arrested the three men who initiated the sloganeering and also arrested two more persons
who were found lighting the government bus on fire.

The accused were produced before the Magistrate on 04.10.2023 and were sent to judicial
remand for fourteen days. On 09.10.2023, one of the arrestees, who had taken part in the
sloganeering, filed a writ petition before the Supreme Court claiming that the action of the
police in arresting protestors who were merely chanting slogans was violative of their
fundamental rights under Articles 19(1)(a) and 21. In the first hearing of the matter which was
held on 16.10.2023, the Supreme Court was notified of the pending criminal proceedings
against the accused and a preliminary objection was raised as to the maintainability of the
matter on this ground. The accused however, argued that the violation of Fundamental Rights
supersedes pendency of criminal proceedings and hence, the writ petition was maintainable.
The accused further stated that his petition was based on violation of Fundamental Rights not
just with respect to his arrest, but also pertaining to recognition of homosexual marriages.

The Supreme Court noted that although the fundamental question of law involved in the writ
petition filed by the accused related to the violation of his Fundamental Rights as a result of

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the arrest, another question involved pertained to same-sex marriages, which therefore
warranted that this matter too, be heard by the Constitutional Bench. Accordingly, the matter
was transferred to the Constitutional Bench after obtaining the CJI’s approval. However, off-
the record, the Court gave the government liberty to raise arguments in the subsequent hearing.

Consequently, the Constitutional Bench framed the following issues for determination:

1. Whether the Supreme Court is empowered to hear a writ petition when criminal
proceedings are pending on the same subject-matter?
2. Whether homosexual marriages and maintenance to parties to such marriages are
recognized under the Special Marriage Act, 1954?
3. Whether the writ petitioner has locus standi to pray to the Court to ‘recognize’ the
validity of homosexual marriages and to further draft guidelines for protection of rights
of LGBTQ+ community?
4. Whether the rights of parties in a ‘live-in relationship’ can extend to parties in a
homosexual relationship?

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Notes for Counsel:

a. The laws of Neverland are in pari materia with the laws of India.
b. The participants shall strictly adhere to the above-mentioned issues and shall not be allowed
to introduce any new issues.
c. Although it is not necessary that the verbatim of the issues is to be followed; however, the
very essence and meaning of the issues raised cannot be altered.

Disclaimer:

The Moot Problem is a work of fiction. Names, characters, places and incidents are either

products of the authors’ imagination or used fictitiously. Any resemblance to actual events

or locales or persons, living or dead, is entirely coincidental. Any resemblance to actual

firms, institutions, organizations or any other entities is entirely coincidental and in

exercise of the authors’ attempt to further academic research.