Rough Petitioner

Team Code – AUR17
AMITY NATIONAL MOOT COURT COMPETITION, 2023
BEFORE THE HON’BLE SUPREME COURT OF REPUBLIC OF SAHARA
SLP FILLED UNDER ARTICLE 136 OF THE CONSTITUTION OF
REPUBLIC OF SAHARA
IN THE MATTERS OF
NGO AAZAD & ANRS.........................................................................APPLICANT
VERSUS
THE REPUBLIC OF SAHARA......................................................RESPONDENT
UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION

JUSTICES OF THE SUPREME COURT OF REPUBLIC OF SAHARA
MEMORANDUM ON BEHALF OF THE PETITIONER
DRAWN AND FILED BY THE COUNSEL FOR THE PETITIONER

AMITY NATIONAL MOOT COURT COMPETITION,
TABLE OF CONTENT
LIST OF ABBREVIATION
INDEX AUTHORITIES
STATEMENT OF JURISDICTION
STATEMENT OF FACTS
ISSUES
SUMARRY ARGUMENT
ARUGUMENT ADVANCE
 Whether notification issued on 5th February 2021 by the State of Karunadu is

unconstitutional for being violative of the provisions of the Constitution of the
Republic of Sahara?
 Whether wearing a hijab by Sahabi is the essential religious practice as per Sahabi
Personal Law or not?
 Whether the practice of polygamy and Nikah Halala as practised by the Sahabis in
violation of Articles 14, 15, and 21 of the Constitution of the Republic of Sahara?
PRAYER
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LIST OF ABBERVITATION
& And
AIR All India reported
All Allahabad
Art Article
Cal Calcutta
CrPc Code of criminal Procedure
Del Delhi
Ed. Edition
IPC Indian Penal Code
Mad Madras
Ori Orissa
p. Page No.
PIL Public Interest Litigation
SC Supreme Court
SCC Supreme Court Cases
Sec Section
u/a Under article
UOI Union of India
UNDHR United Nation Declaration on Human
rights
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INDEX OF AUTHORITIES
CASES
1. Akash Mar Seva Trust and Others v the State of Madhya Pradesh
2. Commissioner of Police v. Acharya Jagdishwarandra Avadhuta (2004) 12 SCC 770
3. Sant Ram v. Labh Singh, 1964 SCR (7) 745
4. Saumya Ann Thomas v. Union of India, 2010 (1) KLJ 449.
5. Kunhimohammed v. Ayishakutty, 2010 (2) KLT 71.
6. Madras Hindu Religious and Charitable Endowment Act, 1951 (Madras Act 19
of 1951).
7. Ratilal Panachand Gandhi v. State of Bombay 1953 ILR, Bombay 1187
8. Mohammad Hanif Quareshi V. State of Bihar, AIR1958 SC.731.

9. Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan, AIR 1963 SC 1638.
51 Nathdwara Temple Act, 1959 (Rajasthan Act 13 of 1959).
10. Seshammal v. State of T.N.
11. Amna Bint Basheer v Central Board of Secondary Education
12. Shayara Bano v. Union of India writ petition (C) No. 118 of 2016
13. Badshah v. Urmila Badshah Godse And Another(2014) 1 SCC 188
14. Moonshee Buzloor Ruheem v. Shumsoonnissa Begum 11 M.I.A. 551 at 615
15. Abeda Bano shaikh Jalaluddin and ors v. Jamshid Amir Ali khan and Ors(2017)
16. Maneka Gandhi v. Union of India, AIR 1978 SC 597.

17. Francis Coralie v. Delhi, AIR 1981 SC 746.
18. P. Rathinam v. Union of India (1994) 3 SCC 394.
19. Gobind v. State of Madhya Pradesh & Anr. AIR 1975 SC 1378
20. 4 N. Adithayan v. The Travancore Devaswom Board, (2002) 8 S.C.C. 106.
21. Khurshid Ahmed Khan vs. State of U.P., (2015) 2 MLJ 237 (SC)
22. Javed v. State of Haryana, AIR 2003 SC 3057.
23. R.A. Pathan v. Director of Technical Education, (1981) 22 Guj LR 289.
24. Indian Young Lawyers Association v. State of Kerala, 2018 SCC OnLine SC 1690.
25. John Vallamattom v.UOI, (2003) 6 SCC 611
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26. Sarla Mudgal v. UOI,(1995)3 S CC 635
ACTS & STATUTES
1. The Indian Penal Code, 1860
2. The Constitution of India, 1950
3. The Code of Criminal Procedure,1973
4. The Muslim Personal Law (Shariat) Application Act, 1937
5. The Karnataka Education act 1983
BOOKS AND REFERENCES
1. Basu D.D, Constitution of India ,14th edition 2009, LexisNexis, Butterworths

Wadhwa Publication Nagpur.
2. Behura N.K. Panigrahi Nilakantha, Tribals and the Indian Constitution, Edition
2006, Rawat Publications.
3. Jain M.P., Indian Constitutional Law, 6th Edition 2011, LexisNexis Butterworth
Wadhwa Nagpur.
4. P.B. Gajendragadkar, The Constitution of Inda\
5. Richard W. Lariviere, “The Indian Supreme Court and The Freedom of Religion”,
in Journal of Constitutional and Parliamentary Studies, vol. IX, no.2 (1975), p. 176
6. Dr. Yasir Qadhi, ‘Hijab In The Qur’an’
7. Yasmin Mogahed, ‘Why Hijab For Muslimah’
8. Mufti Menk on Hijab, Quran Klub,.
9. Haroon Abdullah, ‘Is Face Veil Compulsory’ Irfi.org
10. Bhadra Sinha, ‘Is Wearing A Turban Integral To Sikh Religion, Asks Supreme
11. Vasanth Kumar, ‘Karnataka High Court Junks PIL against anointment of 16-year
old boy as pontiff’
12. Impact of Polygamy on Indian Women and Children: A Critical Study.
13. L.K. Swaraj & K.G. Prithvi, Polygamy in Muslim Law: An Overview, 2(2)
International Journal of Law Management and Humanities, (2019
CONVENTIONS AND TREATIES
1. International covenant on Economic, social and cultural rights, 1966
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2. United Nation Declaration on Human rights 1948
LEXICON
1. GARNER, BLACK’S LAW DICTIONARY (9th Ed. Thomas & West, U.S.A
1990).
2. FARLEX DICTINOARY
3. MERRIAM WEBSETER (LEGAL DICTIONARY
LEGAL DATABASE
1. Air Web World

2. LexisNexis
3. Manupatra
4. SCC
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STATEMENT OF JURISDICATION
THE PETITIONER HAS FILED THE SPECIAL LEAVE PETITION BEFORE THE
HON’BLE SUPREME COURT OF REPUBLIC OF SAHARA, IN THE MATTER OF NGO
AAZAD & ANRS VS THE REPUBLIC OF SAHARA UNDER ARTICLE 136 1 OF THE
CONSTITUTION OF SAHARA. THE PRESENT MEMORANDUM SETS FORTH THE
FACTS, CONTENTIONS AND ARGUMENTS
1
136. Special leave to appeal by the Supreme Court. —
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to
appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made
by any court or tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any
court or tribunal constituted by or under any law relating to the Armed Forces.
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STATEMENT OF FACTS
1. The Republic of Sahara is a sovereign, socialist, secular, and democratic republic,

comprising a union of 28 constituent States and 8 Union Territories, located in South
Asia. With a population of 1.38 billion, it ranks as the world's second most populous
nation. The Republic of Sahara is globally renowned for its cultural, linguistic, and
religious diversity. The Sahabi community, the second largest religious group,
accounting for 15% of the population, adheres to the religion of Sahabi and the rest of
the population follows other religions.
2. Nighat, a 19-year-old Sahabi woman, studying in 3rd year of B.A. (English) at Viduli
College in Karunadu state of the Republic of Sahara, juggles her education with
significant responsibilities at her father's small-scale business, which operates from
their home. Embracing her father's customs and her respected role in the mosque, she
has worn a hijab since the age of 10, setting her apart from other female family
members who generally wear burkas
3. The State Government of Karunadu issued a notification on 5th February 2021 under
Section 133 (2) of the Karunadu Education Act, 1983, stating that students must wear
the prescribed uniform and refrain from wearing a hijab while attending schools
regardless of whether the institution is government or private. Consequently,
Karunadu Women's Viduli College implemented a ban vide order dated 17th February
2021 by the College Development Committee on hijabs within its premises, denying
entry to Sahabi students solely based on their hijab attire. However, the Sahabi
students argued that they should be allowed to wear hijabs since they adhered to the
uniform's colour and design.
4. Following the issuance of the order, Nighat's father restricted her further education in
the college and she had to drop out of the college. Aggrieved by the situation, she
approached a Non-governmental Organization named ‘Aazad’ based out of the State
of Karunadu, which focused on protecting the human rights of minorities in the
Republic of Sahara. The NGO filed a Public Interest Litigation on 23rd March 2021
in the High Court of Karunadu related to the school/college code and the display of
religious/cultural symbols by students within educational institution premises. The
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Karunadu High Court ruled in favour of the educational institutions, stating that all
students must adhere to the uniform code, irrespective of their community or personal
identity. Aggrieved by the decision the NGO filed an appeal in the Supreme Court of
Republic of Sahara on 30th August 2021.
5. Nighat’s father arranged her marriage with Dr. Khizar Khan in October 2021. Khizar
belonged to a very religious family too. Everything was going fine between them but
due to certain medical reasons, she was unable to conceive and had two miscarriages
in a row. She went through fertility treatments but it was all in vain. This caused the
marriage to hit a hard point.
6. Amid the ongoing tension in the family and frequent arguments between the couple, it
was getting difficult to maintain the relationship. Khizar’s family was continuously
insisting him on marrying another woman due to Nighat’s medical condition.
Although Nighat was against the idea of 2nd marriage for Khizar and expressed clear
intention about this to him. Under family pressure, Khizar got married to Tahira on 10
January 2022. Nighat was unhappy with this decision and it gave rise to daily quarrels
at home. On 24 January 2022 tired of the everyday altercation, Khizar decided to end
the marriage with Nighat and pronounced talaq to her in a tuhr period followed by a
period of abstinence. Devastated by the situation she left his home immediately and
went back to her father’s place. She observed iddat as per the requirements of talaq-e-
ahsan prescribed in the Sahabi Personal Law. The talaq became irrevocable on 23rd
April 2022.
7. Nighat decided to file a writ petition in the High Court of Karunadu to challenge the
validity of polygamy under the Sahabi law. Her contention was that the practice of
polygamy is against the provisions of the constitution of the Republic of Sahara. The
High Court rejected the contention and ruled against her vide judgment dated 5th
October 2022. She filed the appeal in the Supreme Court of the Republic of Sahara.
8. Khizar went to meet Nighat after his divorce. He apologised to her for whatever
happened. They both realised their mistake and wanted to be united again but
according to the Sahabi Personal Law, the practice of nikah halala was to be followed
if they wanted to marry each other again. Both were against the idea of practising
nikah halala. Hence, on 20 December 2022, they got married to each other without
telling anyone in either of the families. Four of their friends became witnesses to the
ceremony. Khizar got transferred and they shifted from the place and started living
alone in another district.
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9. With Almighty’s grace, Nighat got pregnant in June 2022 and delivered a child on 1st
March 2023. Both of them were very happy as the only issue between them was over
with the birth of this child. Thinking that it would finally make the family happy, they
went to visit them. To their surprise, neither of the families were happy to see them.
Not only the families refused to accept them and the child but also accused them of
living in Zina. They were humiliated by both the families as well as the community. A
fatwah was released against Nighat and Khizar expelling them from the community.
Due to acute pressure from the family and the community, Khizar left Nighat on 31st
March 2023.
10. Nighat was helpless and went to her father’s house along with her child again. She
approached the Family court on 20th May 2023 for a declaratory decree under Section
34 of the Specific Relief Act,1963 but the court ruled against her and refused to
declare their marriage valid due to non-adherence to the customary practices of halala
as per Sahabi personal Law. Therefore, seeking justice, she appealed to the High
Court of Karunadu on 10 September 2023. The High Court of Karunadu confirmed
the decision of the Family Court vide judgment dated 22nd December 2023.
Aggrieved by the decision of the High Court of Karunadu Nighat approached the
Hon’ble Supreme Court of the Republic of Sahara contending that the practice of
halala was derogatory to Sahabi women and should be declared unconstitutional.
11. The Supreme Court clubbed the appeals filed by the NGO Aazad challenging hijab
being banned in educational Institutions in the State of Karunadu the appeal filed by
Nighat regarding challenging the validity of the practice of polygamy and the appeal
by Nighat challenging nikah halala. The hearing is scheduled to be held on 31st
October 2023
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ISSUES RAISED
The following questions are presented for adjudication in the instant matter:
ISSUE I
Whether notification issued on 5th February 2021 by the State of Karunadu is

unconstitutional for being violative of the provisions of the Constitution of the Republic
of Sahara?
ISSUE II
Whether wearing a hijab by Sahabi is the essential religious practice as per Sahabi
ISSUE III
Whether the practice of polygamy and Nikah Halala as practised by the Sahabis in
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SUMMARY OF ARGUMENTS
1. Whether notification issued on 5th February 2021 by the State of Karunadu is

unconstitutional for being violative of the provisions of the Constitution of the
Republic of Sahara?
The petitioner has locus standi to file a case against the notification issued on 5 th February
2021. The notification has been issued to target the particular community and violates the
fundamental right of a person to practice its religion under article 25 and 26 of constitution of
India. Wearing hijab is not against the public order, interest or morality thus state has not
right to interfere in the religious practice.
2. Whether wearing a hijab by Sahabi is the essential religious practice as per Sahabi
It is respectfully asserted before the honorable Supreme court that hijab is an essential
religious practice as per sahabi personal law. Hijab is the practice that has been performed to
protect the modesty of a woman and has the reference in the holy book “Quran”.
3. Whether the practice of polygamy and Nikah Halala as practised by the Sahabis in
It is humbly submitted before the Hon’ble Court that, Article 14, 15, and 21 of the
Constitution have been violated on account of action of state, as the practise of polygamy and
Nikah halala are gender baised and deprived women belonging to the community. Under
Sahabis law the impugned practises are not recognised thus
they are protected under the constitutional law also. And it will be the
violation of fundamental rights guaranteed under Indian constitution
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ARGUMENTS ADVANCE
ISSUE I
Whether notification issued on 5th February 2021 by the State of Karunadu is

unconstitutional for being violative of the provisions of the Constitution of the Republic
of Sahara?
The present petition is maintainable under Article 136 of the Constitution 2, since, state of
Karnuadu falls within the ambit of “state” as enshrined u/a 12 of the Constitution. There has
been violation of Fundamental Rights.
The State of Karunadu’s Notification dated on February 5th, 2021, upholding the ban on
wearing hijab in state-owned and private educational institutions has had severe
repercussions, causing Muslim women to lose degrees and academic years due to their choice
to wear the hijab during examinations. This decision has led to Muslim female students being
unable to take exams if they opt to wear the hijab.
The question is about the fairness and compassion of preventing Muslim female students
from wearing hijab during exams even after a year, effectively forcing them to choose
between their education and religious beliefs.
1.1 Violation of article 25

One of the rights guaranteed by the Indian Constitution is the right to Freedom of
Religion. As a secular nation, every citizen of India has the right to freedom of religion
i.e. right to follow any religion. As one can find so many religions being practiced in
India, the constitution guarantees to every citizen the liberty to follow the religion of their
choice. According to this fundamental right, every citizen has the opportunity to practice
and spread their religion peacefully. And if any incidence of religious intolerance occurs
in India, it is the duty of the Indian government to curb these incidences and take strict
actions against it. Right to freedom of religion is well described in the Articles 25, 26, 27
and 28 of Indian constitution.
2
Republic of Sahara, Pari Materia to Constitution of India (Herein after referred as Constitution).
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Article 25 reads:
(1) Subject to public order, morality and health and to the other provisions of this Part, all
persons are equally entitled to freedom of conscience and the right freely to profess,
practice and propagate religion. (2) Nothing in this article shall affect the operation of
any existing law or prevent the State from making any law - (a) regulating or
restricting any economic, financial, political or other secular activity which may be
associated with religious practice; (b) providing for social welfare and reform or the
throwing open of Hindu religious institutions of a public character to all classes and
sections of Hindus3
Explanation I. - The wearing and carrying of kirpans shall be deemed to be included in

the profession of the Sikh religion.
Explanation II. - In sub-clause (b) of clause (2), the reference to Hindus shall be
construed as including a reference to persons professing the Sikh, Jain or Buddhist
religion, and the reference to Hindu religious institutions shall be construed accordingly.
Article 26:
Subject to public order, morality and health, every religious denomination or any section
thereof shall have the right – (a) To establish and maintain institutions for religious and
charitable purposes; (b) To manage its own affairs in matters of religion; (c) To own and
acquire movable and immovable property; and (d) To administer such property in
accordance with law
This means that a religious denomination’s right to manage its religious affairs is a
fundamental right protected by the Constitution. No legislation can violate it except for
health, morality and public order.
In case of Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra

Tirtha Swamiar of Shri Shirur Matt.4
the Shri Shirur matt case arose out of the Madras Hindu Religious and Charitable
Endowments Act 19515 passed by the Madras legislature in 1951. The object of the Act,
as stated in its preamble, was to amend and consolidate the law relating to the
administration
3
P.B. Gajendragadkar, The Constitution of Inda.op,cit.13-14/40-41
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4
Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra Tirtha Swamiar of Shri Shirur
Mutt, AIR 1954 SC 282.
5
Madras Hindu Religious and Charitable Endowment Act, 1951 (Madras Act 19 of 1951).
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and governance of Hindu religious and charitable institutions and endowments in the
State of Madras. The Act contained sections dealing with the powers of the State with
regard to the general administration of the Hindu religious institutions, their finances and
certain other miscellaneous subjects.
Section 20 of the Act dealt with matters pertaining to the administration of Hindu
religious endowments that were to be placed under the general superintendence and
control of the Commissioner. The Commissioner was authorized to pass orders, which he
deemed necessary, for the proper administration of these religious endowments. He was
to ensure that the income from these endowments was spent for the purposes for which
they were founded. Section 21 of the Act gave the Commissioner, the Deputy and
Assistant Commissioners, and such other officials as might be authorized, the power to
enter the premises of any religious institution or any other place of worship for the
purpose of exercising any power conferred, or discharging any duty imposed by or under
the Act, provided that the concerned officer exercising such power was a Hindu. Section
23 of the Madras Hindu Religious and Charitable Endowments Act of 1951 provided that
the trustee of a religious institution was to obey all lawful order issued under the Act by
the Government, the Commissioner and other such officials. Section 56 stated that the
Commissioner was empowered to ask the trustee to appoint a manager for the
administration of the secular affairs of the institution and in default of such an
appointment he could make the appointment himself.
On constitutional grounds, the validity of the Act was challenged by Shri Lakshmindra
Tirtha Swamiar, the mathadhipati of Sirur math10 who assumed also the office of
mathadhipati of Udipi math at a time when it was under financial crisis. The Hindu
Religious Endowment Board stepped in at this point to assist the Udipi math in getting
out of its financial problems.
The Supreme Court found the case in favour of the math. While giving the judgment, it
seems that the Court has taken a thoughtful approach to the meaning of “religion.”
Besides the Supreme Court seemed to have given an indigenous meaning to what
includes into the category of “secular activities” associated with religion. This ruling of
the Supreme Court has been considered as one of the most important decisions in Indian
jurisprudence with
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regard to the definition of religion.6 Mr. Justice Mukerjea who spoke for the unanimous
decision of the Court pointed out that the resolution of the dispute hinged on the
clarification of what ‘matters of religion’ are. He said: The word “religion” has not been
defined in the Constitution and it is a term which in hardly susceptible of any rigid
definition. In an American case (vide Davis v. Benson, 133 U.S. 333 at 342), it has been
said “that the term ‘religion’ has reference to one’s views of his relation to his Creator
and to the obligations they impose of reverence for His Being and character and of
obedience to His will. It is often confounded with cult us of form or worship of a
particular sect, but is distinguishable from the latter.” We do not think that the above
definition can be regarded as either precise or adequate. Articles 25 and 26 of our
Constitution are based for the most part upon article 44(2) of the Constitution of Eire and
we have great doubt whether a definition of “religion” as given above could have been in
the minds of our Constitution- makers when they framed the Constitution. Religion is
certainly a matter of faith with individuals or communities and it is not necessarily
theistic.
Under Article. 26 (b), therefore, a religious denomination or organization enjoys complete

autonomy in the matter of deciding as to what rites and ceremonies are essential
according to the tenets of the religion they hold and no outside authority has any
jurisdiction to interfere with their decision in such matters. under Art.26 (d), it is the
fundamental right of a religious denomination or its representative to administer its
properties in accordance with law; and the law, therefore, must leave the right of
administration to the religious denomination itself, subject to such restrictions and
regulations as it might choose to impose.
A law which takes away the right of administration from the hands of a religious
denomination altogether and vests it in any other authority would amount to a violation of
the right guaranteed under cl. (d) of Art.26.7
The Ratilal case,8 the Supreme Court was once again appealed to decide on the judicial
application of ‘religion’ and ‘matters of religion’ as implied in the right to exercise of
religion protected under articles 25 and 26 of the Constitution. The Manager of a Jain
public temple and Trustees of Parsi Panchayat Funds and Properties in Bombay
challenged before
6
Richard W. Lariviere, “The Indian Supreme Court and The Freedom of Religion”, in Journal of Constitutional
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and Parliamentary Studies, vol. IX, no.2 (1975), p. 176
7
Ibid., at 292.
8
Ratilal Panachand Gandhi v. State of Bombay 1953 ILR, Bombay 1187
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the Bombay High Court9 the constitutional validity of the Bombay Public Trust Act of
1950.
The Chief Justice, Mr. M.C. Chagla who delivered the judgment of the Bombay High
Court said: “Religion” as used in arts. 25 and 26 must be construed in its strict and
etymological sense. Religion is that which binds a man with his Creator, but Mr.
Sommaya on behalf of his client (Panachand) says that as far as Janise are concerned,
they do not believe in a Creator and that distinction would not apply to the Jains. But
even where you have a religion which does not believe in a Creator, every religion must
believe in a conscience and it must believe in ethical and moral precepts. Therefore,
whatever binds a man to his own conscience and whatever moral and ethical principles
regulate the lives of men that alone can constitute religion as understood by the
Constitution. A religion may have many secular activities, it may have secular aspects,
but these secular activities and aspects do not constitute religion as understood by the
Constitution. There are religions which bring under their own cloak every human activity.
There is nothing which a man can do, whether in the way of clothes or food or drink,
which is not considered a religious activity. But it would be absurd to suggest that a
constitution for a secular State ever intended that every human and mundane activity was
to be protected under the guise of religion, and it is therefore in interpreting religion in
that strict sense that we must approach arts. 25 and 2610
In the Shri Lakshmindra and the Ratilal cases, the Supreme Court of India has given a
liberal approach to the meaning of religion which includes not only faith, belief,
doctrines, code of ethical rules but also rituals, ceremonies and observances done in
pursuance of religious belief, which are regarded conducive to spiritual well being.
In case Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan, (hereafter

researcher will be referred as the Govindlalji11
When cases have been brought before the Courts in India on contentious issues regarding
‘matters of religion’ as referred to in clause (b) of article 26 of the Constitution, judges
have relayed on literary sources as well as traditional usages and practices of the religion
which was under scrutiny to ascertain its essential aspects as claimed by the petitioners
or the
9
Bombay Public trust Act, 1950 (Bombay Act 29 of 1950)
10
Mohammad Hanif Quareshi V. State of Bihar, AIR1958 SC.731.
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11
Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan, AIR 1963 SC 1638. 51 Nathdwara Temple Act, 1959
(Rajasthan Act 13 of 1959).
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contending parties. The Supreme Court reversed the decision of the Rajasthan High Court
and held that the expression “affairs of the temple” covered only the secular affairs of the
temple and, therefore, could not be objected by law. The Supreme Court then pointed out
two kinds of duties, which had been entrusted to the Board of managers: firstly, the Board
had to manage the properties and secular affairs of the temple. Secondly the Board had to
arrange for the religious worships, ceremonies and festivals in the temple in accordance
with the customs and usages of the denomination to which the temple belonged.48
Commenting on the customs and usages associated with religious practices, which were
claimed as integral part of a particular religious denomination, Mr. Justice
Gajendragadkar who delivered the judgment of the Supreme Court in this case made the
observation:
In deciding the question as to whether a given religious practice is an integral part of the
religion or not, the test always would be whether it is regarded as such by the community
following the religion or not. This formula may in some cases present difficulties in its
operation. Take the case of a practice in relation to food or dress. If in a given
proceeding, one section of the community claims that while performing certain rites white
dress is an integral part of the religion itself, whereas another section contends that
yellow dress and not the white dress is the essential part of the religion, how is the court
going to decide the question? Similar disputes may arise in regard to food. In cases where
evidence is produced in respect of rival contentions as to the competing religious
practices the court may not be able to resolve the dispute by a blind application of the
formula that the community decides which practice is an integral part of its religion,
because the community may speak with more than one voice and the formula would,
therefore, break down. This question will always have to be decided by the court and in
doing so, the court may have to enquire whether the practice in question is religious in
character and if it is, whether it can be regarded as an integral or essential part of the
religion, and the finding of the court on such an issue will always depend upon the
evidence adduced before it as to the conscience of the community and the tenets of its
religion.
The State’s approach towards religion embedded in these constitutional provisions is one
that maintains a ‘principled distance’ from religion. This, however, does not prohibit the
State to intervene when practice of religion contravenes public order, morality, health,
egalitarian social order and objectives of the welfare State intended for integrated
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development of the individuals and communities. State intervention or non-intervention
in the practice of religion depends upon which of the two better promotes substantive
values
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like religious liberty, egalitarian social order, social justice and religious harmony which
are constitutive of a life worthy of human dignity for all.
In this case the notification dated on 5 th February 2021 is unconstitutional as it violates
article 25, 26 of constitution of India. As the practise of wearing hijab is not against the
public morality, or against public order thus the state cannot interfere in the religious
matter of wearing hijab
ISSUE II
Whether wearing a hijab by Sahabi is the essential religious practice as per Sahabi
2.1 Essential practise

Commissioner of Police v. Acharya Jagdishwarandra Avadhuta 12 has held the following in
respect of the meaning of the expression “an essential part or practices of a religion”. “9. The
protection guaranteed under Articles 25 and 26 of the Constitution is not confined to
matters of doctrine are belief but extends to acts done in pursuance of religion and,
therefore, contains a guarantee for rituals, observance, ceremonies and modes of worship
which are essential or integral part of religion that has to be determined with reference to its
doctrine’s practices, tenets, historical background, etc. of the given religion.
Seshammal v. State of T.N.13 court held regarding those aspects that are to be looked into so
as to determine whether a part or practice is essential or not. What is meant by “an essential
part of practices if a religion” is now the matter for elucidation. Essential part of a religion
means those practices that are fundamental to follow a religious belief. It is upon the
superstructure of are religion is built, without which a religion will be no religion. Test to
determine whether a part or practice is essential to a religion is to find out whether the nature
of the religion will be changed without that part or practice. If the taking away of that part or
practice could result in a fundamental change in the character of that religion or in its belief,
the such part could be as an essential or integral part. There cannot be additions or
subtractions to such part because it is the very essence of that religion and alteration will
change its fundamental character. It is such permanent essential parts which are protected by
the
12
Commissioner of Police v. Acharya Jagdishwarandra Avadhuta (2004) 12 SCC 770
24 | P a g
13
Seshammal v. State of T.N.
25 | P a g
Constitution. Nobody can say that an essential part of practice is definitely not the “core” of
religion whereupon the belief is based and religion is founded upon. They could only be
treated as mere embellishments to the non-essential part or practices. Essential part of a
religion means the core belief on which the religion is founded. It is evident from the
precedents of this Hon’ble Court that what constitutes “an integral or essential part of the
religion is to be determined with reference to its doctrines, practices, tenets, historical
background, etc. To be protected as a religious practice has to constitutes the very essence of
that religion, and should be such that, if permitted, it will change its fundamental character. It
is such permanent essential practices which are protected by the Constitution of India.
Hijab is an essential practise and custom performed by Muslim women as these are the
symbol of modesty and strong belief which is called imam. The perspective of contemporary
scholars of Islam, Dr. Omar Suleiman, the founder of Yaqeen Institute, holds the same
opinion, based on research published on his institute’s website, that hijab is an essential part
of Islam.14 Other contemporary scholars like Dr. Yasir Qadhi,15 Yasmin Mogahed,16 and
Mufti Menk17 hold the same opinion that the hijab is an essential practise in Islam, although
they differ concerning the practise of niqab(face veil), and scholars in the past as well have
differed concerning the obligation of the niqab(face veil). 18 Classical scholars like al-Albani
were of the view that a niqab (face veil) is not obligatory. But when it comes to the practise
of hijab from the lenses of the Qur’an and Prophetic tradition, it is established that
undoubtedly hijab is an essential practise in Islam.
While this has been put to courts on several occasions, two set of rulings of the Kerala High
Court, particularly on the right of Muslim women to dress according to the tenets of
Islam, throw up conflicting answers.
In 2015, at least two petitions were filed before the Kerala High Court challenging the
prescription of dress code for All India Pre-Medical Entrance which prescribed wearing
“light
14
Tahir (n 42)
15
Dr. Yasir Qadhi, ‘Hijab In The Qur’an’ <https://www.youtube.com/watch?v=YRsd2v07leY> accessed
10August 2022
16
Yasmin Mogahed, ‘Why Hijab For Muslimah’
<https://www.youtube.com/watch?v=1LwAcCPmBio>accessed 10 August 2022
17
Mufti Menk on Hijab, Quran Klub, YouTube (2017) <https://youtu.be/yqX7MOERLcg> accessed 29
November2022.
18
Haroon Abdullah, ‘Is Face Veil Compulsory’ Irfi.org
(2022)<http://irfi.org/articles/articles_751_800/is_face_veil_compulsory.htm> accessed 10 August 2022
26 | P a g
27 | P a g
clothes with half sleeves not having big buttons, brooch/badge, flower, etc. with
Salwar/Trouser” and “slippers and not shoes”. Admitting the argument of the Central Board
of School Education (CBSE) that the rule was only to ensure that candidates would not use
unfair methods by concealing objects within clothes, the Kerala HC directed the CBSE to
put in place additional measures for checking students who “intend to wear a dress
according to their religious custom, but contrary to the dress code”.
In Amna Bint Basheer v Central Board of Secondary Education 19(2016), the Kerala HC
examined the issue more closely. The Court held that the practice of wearing a hijab
constitutes an essential religious practice but did not quash the CBSE rule. The court once
again allowed for the “additional measures” and safeguards put in place in 2015
In another judgement from the past, while hearing a plea by a Sikh man named Jagdeep
Singh Puri, the Supreme Court of India stated in its argument that covering one’s head is
an essential practise in Sikhism for males; however, it is not clear if a turban is required to
fulfil the religious obligation. The Court’s argument in this case from 2018 concerning a
Sikh man makes it clear.20 The Court in this instance questioned whether donning a turban
constituted a mandatory rite, but it made the remark that Sikhism considers head covering
to be essential.21According to this analogy, the hijab should have been considered an
essential religious practise by the respected Court because hijab is considered an essential
and obligatory part of Islam by the majority of Islamic scholars, both past and present,
male and female. Additionally, hijab holds an important religious practise among Muslim
masses since ages culturally and socially.
Over the years, the Supreme Court (SC) has evolved a practical test of sorts to
determine what religious practises can be constitutionally protected and what can be
ignored.
In 1954, the SC held in the Shirur Mutt case that the term “religion” will cover all
rituals and practises “integral” to a religion. The test to determine what is integral is
termed the “essential religious practises” test. The test, a judicial determination of
religious practises, has often been criticised by legal experts as it pushes the court to delve
into theological spaces. In criticism of the test, scholars agree that it is better for the
court to prohibit religious
19
Amna Bint Basheer v Central Board of Secondary Education
20
Bhadra Sinha, ‘Is Wearing A Turban Integral To Sikh Religion, Asks Supreme Court’ Hindustan Times
28 | P a g
(21April 2018) <https://www.hindustantimes.com/india-news/is-wearing-a-turban-integral-to-sikh-religion-
asks-supreme-court/story-vN45GxHh0ffXCbMFRvEZ1I.html> .
21
ibid.
29 | P a g
practices for public order rather than determine what is so essential to a religion that it
needs to be protected. But practise of wearing hijab is not against the public order in fact the
reason behind is to protect the modesty of women.
In case of Akash Mar Seva Trust and Others v the State of Madhya Pradesh2216 year old
boy named Aniruddha Saralathya (now named as Vedavardhana Tirtha) was appointed as a
peetadhipathi/swami(chief pontiff) at Shirur Mutt in Udupi. Because he was a minor
Lathavya Acharya, Secretary and Managing Trustee of Sri Shiroor Mutt Bhaktha Samithi of
Udupi, and three other office bearers of the organisation questioned the appointment by
filing a Public Interest Litigation (PIL) stating that the minor’s rights were being violated by
being forced to become a sanyasi.31
The Karnataka High Court denied the petition, declaring that it would not interfere with the
fundamental religious practice that has been followed for ages. The division bench of
Acting Chief Justice Satish Chandra Sharma and Justice Sachin Shankar Magadum heard
the parties and stated that in Buddhism it is common to appoint a person as Swami (Pontiff
or Monk) at a tender age and that the Court cannot be expected to overwrite religious texts
23
The Karnataka High Court also stated that the question of interference by the Court in an
essential religious practise, which has been continuing for the last eight hundred years, does
not arise.24
Another basis given by the Court in this judgement is that the ceremony, in honour of the
appointment of president at Hindu Mutt, has been performed for ages, which contradicts the
argument presented by the Court concerning the hijab judgment discussed above as hijab is
also a practise which has been practised by Muslim women all over the world for ages. It is
an established fact that hijab has been observed for more than fourteen hundred years by
Muslim women in different geographical regions in different manners.40 The large numbers
of Muslim women have covered their hair and heads, and it has been considered an essential
religious practice among the Muslim community as well as among Muslim scholarship.
22
Akash Mar Seva Trust and Others v the State of Madhya Pradesh Biju (n 30)
23
P. Vasanth Kumar, ‘Karnataka High Court Junks PIL against anointment of 16-year old boy as pontiff’
24
A Critical Evaluation of Karnataka High Court's Judgment Concerning the Hijab. Available from:
https://www.researchgate.net/publication/367561459_A_Critical_Evaluation_of_Karnataka_High_Court's_Judg
30 | P a g
ment_Concerning_the_Hijab
31 | P a g
ISSUE III
Whether the practice of polygamy and Nikah Halala as practised by the Sahabis in
1.1. Polygamy and Nikah Halala in Personal law
The “definition of personal laws in India has been shaped by strong prejudices against the
rights of women compared to those of males. Personal Laws are derived mostly out of
religion or traditional values which in itself gives rise to the debate of universalism and
cultural relativism. However, India has successfully managed to establish a secular
framework with utmost respect given to the Constitution of the land and Fundamental Rights
of the citizens. Yet, traditional practices like polygamy or Nikah Halala do not seize to exist
even in today’s world. This blatant discriminatory practice still existing in India violates the
basic human rights of women.25
Nikah halala refers to the practise of forcing a divorced wife to marry another man, before
she may remarry her former husband. This custom is codified in the Muslim Personal Law
(Shariat) Application Act, 1937. As its name would suggest, the Act applies only to Muslims.
In Sahara, each major religious community enjoys its own laws relating to marriage and
succession. These are called ‘personal laws. Muslim personal law is codified in the 1937
Shariat Act.
Marriage is considered to be a civil contract in Muslim Personal Law. 26 The Supreme Court’s
stance on Shayara Bano v. Union of India27 (2016), Wherein the Court Declared Triple
Talaq as “An Invalid Form of Practice Which Marked a Fresh Start To The Age-Old Struggle
Towards Gaining Gender Neutrality On The Religious Personal Laws”. With this ongoing
debate, there has been an increase in the awareness of women rights.
25
Impact of Polygamy on Indian Women and Children: A Critical Study.
(https://www.researchgate.net/publication/371255716_Impact_of_Polygamy_on_Indian_Women_and_Children
_A_Critical_Study)
26
Badshah v. Urmila Badshah Godse And Another(2014) 1 SCC 188
32 | P a g
27
Shayara Bano v. Union of India writ petition (C) No. 118 of 2016
The practice of polygamy and Nikah Halala not only violates and undermines articles 14, 15,
16, 21 And 25 of the Indian Constitution but also violates the fundamental human rights as
enshrined under the United Nation’s Universal Declaration Of Human Rights (Udhr)28
Some obsolete practices which discriminate against women are still present in India in the
name of traditions, customs, and religion. Polygamy and Nikah Halala is one such practice
still prevalent in the Muslim law. The practice of polygamy and Nikah Halala has raised
many fingers over these years on the issue of religious morality v. Constitutional morality
even though India has strived to provide protection of women by enacting various acts, but
the complexity of religious and social norms does not allow homogeneous civil rights
legislation to its optimum level.
1.1.1. Muslim Personal Law

A. In context of polygamy
The supreme court, there has been much debate on Muslim personal law. as Islam is the only
religion in India which vehemently allows such a practice which not only defies the principle
of natural justice expressed under the constitution, but also overrides the principle of non-
discrimination, dignity of a woman and equality.29 Even though polygamy is restricted in
Islam, polyandry is entirely forbidden.30 in spite of article 16of the UNDHR which states the
right to form a marriage and found a family for both men and women, being recognized as a
fundamental human right, such a discriminatory practice is still practiced. 31 The International
Covenant on Civil and Political Rights (ICCPR) under article 23 states that a marriage
entered willingly shall be protected by the Law and the State party by maintain equality and
fairness in the marriage.32 General recommendation no 25 of the CEDAW explains that the
state parties to the convention are legally obligated to protect, respect, promote non-
discrimination of
28
Universal Declaration of Human Rights, 1948- UDHR is a historic document that was adopted for
maintaining and creating awareness about Human rights by the United Nations General Assembly on the 10
December 1948.
29
Moonshee Buzloor Ruheem v. Shumsoonnissa Begum 11 M.I.A. 551 at 615
30
In this study, the researcher will use polygamy as it is the only form practiced. Polygamy meansthat a man
can marry more than once and twice whereas Polyandry means a womancan marry more than once, which
happens only rarely in some parts of India only. .
31
Article 16 of the UDHR states (1) Men and women of full age, without any limitation due to race, nationality
or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during
marriage and at its dissolution. (2) Marriage shall be entered into only with the free and full consent of the
intending spouses. (3) The family is the natural and fundamental group unit of society and is entitled to
protection by society and the State
32
General Recommendation 19, Article 23, Paragraph 1-4 of the International Convention on Civil and Political
Rights. India ratified the Convention in 1979.
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34 | P a g
women. Though Islam permits polygamy; it has
aid down various conditions, which, in practice, are very difficult to adhere to. Following the
text of the Quran, below are the prominent conditions required to be fulfilled in order for a
man to enter into a polygamous marriage:”
• A man shall have sufficient financial resources to suffice all of his wives
equally and their respective families.
• A man must possess physical prowess for satisfying the sexual desires of each
of his wives and
• Lastly, a man must be observant to complete justice and equality among each
family in every way without any favouritism. 33
Verse 129 of the Quran also has to be mentioned along with the above-mentioned provisions,
wherein it declares that it is nearly impossible for men to achieve such equity between his
wives and families despite their best efforts. Is clear that verse 4:3 of the Quran is not to be
considered as an epicurean permit for marriage with more than one woman. A number of
verses attribute towards monogamy as an acceptable form of marriage in Quran. Quran
mentions in verses 7:189 and 30:12, the relation of a husband and wife to be “marriage
partners” who can find peace and mindfulness only in each other’s company.
Section 125 of the CrPc which included maintenance of Muslim women as well in the act
created major crisis amongst the Muslim community under the 1973 amendment. The
conflict in laws arisen because the maintenance of a Muslim woman was considered to be
under the Muslim personal law’s purview. The section under Muslim personal law with the
passing of the judgment of the controversial Shah Bano begum case, the legislature passed
the Muslim women (protection on rights on divorce) act, 1986. Even with this act being
passed, Muslim women are still struggling for maintenance34.
In case the husband has more than one wife; that is, in case of polygamy, the 1/8th share is
divided equally among them, but this rule does not include agricultural land. This leads to
vast economical dependency of the wife on the husband. All the above-mentioned facts
were
33
General Recommendation 25, Article 4, Paragraph 1, of the Convention (temporarymeasures),UN
CEDAWOR, 30th Session, UN Doc. HRI/GEN/1/Rev.7 at 282,Paragraphs 5,7,8,10,12.
35 | P a g
34
Jubair Ahmed V. Ishrat Bano2019
36 | P a g
observed in the case of Abeda Bano shaikh Jalaluddin and ors v. Jamshid Amir Ali khan and
Ors(2017)35 [38].
Ownership of properties increases the value of a woman in her in-law’s household and
reduces violence. [study by land rights advocacy group Landesa India]. The study conducted
by the Bmma in 2015 showed 82% of the Indian Muslim women did not own property.
[excluding up, cite the study] thus it can be observed that there is a clear inconsistency
between the division of property between a woman and a man.
B. In context of Nikah Halala
The most quoted Quranic verse with reference to Halala is verse number 230 of Chapter 2
(SurahAl-Baqrah) which reads as: "So if a husband divorces his wife ˹three times˺, then it is
not lawful for him to remarry her until after she has married another man and then is
divorced. Then it is permissible for them to reunite, as long as they feel they are able to
maintain the limits of Allah..." This verse allows divorced Muslim women to remarry the
same person only after she has married another person and then is divorced from the second
marriage. It clearly mentioned when a husband divorce his wife three times which means
triple talaq but as of the Muslim law triple talqu is ban hence the practise of nikah halala
would not be applicable under this case.
In other words, it does not mandate the remarriage at any cost, especially not at the cost of the
honor. This could be made clear by reading verse number 231 of Chapter 2 (Surah Al-
Baqrah) which reads as: “When you divorce women and they have ˹almost˺ reached the end
of their waiting period, either retain them honourably or let them go honourably. But do not
retain them ˹only˺ to harm them ˹or˺ to take advantage ˹of them36
According to a relevant Hadith, Prophet Muhammad (peace be upon him) cursed a person
who marries someone’s wife just to make her lawful for remarriage
As per this Hadith, Ibn Mas’ood (radiyallāhu ‘anhu) narrated5, “Allah’s Messenger invoked
the curse upon the man who made a woman lawful for her first husband and the one for
whom
35
Abeda Bano shaikh Jalaluddin and ors v. Jamshid Amir Ali khan and Ors(2017)
36
Differentiating Evil Practice of Nikah-Halala from Mandate of ‘Intervening Marriage’. Available from:
https://www.researchgate.net/publication/352163569_Differentiating_Evil_Practice_of_Nikah-
37 | P a g
Halala_from_Mandate_of_'Intervening_Marriage'
38 | P a g
she was made lawful.”37 Another similar tradition says, “Allah's Messenger (peace be upon
him) cursed the man who made a woman lawful for her first husband and the one for whom
she was made lawful (the men involved in Halalah)” 38
1.1.2. Scope of article 13 on Muslim personal law
In Sant Ram v. Labh Singh39, a Constitutional Bench of the Supreme Court rejected the
contention that the second definition, i.e., “laws in force” does not in any way restrict the
ambit of word “law” in the first clause as extended by the definition of that word. The
second definition merely seeks to amplify the first one by including something which but
for it, would not be included in the first definition. The Court thus held that the word “laws”
in the second definition has also the meaning of “law” as defined in the first definition.
Thus, it is clear that Article 13(3)(b) does not exclude other forms of law besides the pre-
constitutional legislative enactments and includes all existing laws. There lies no logical
reasoning to conclude that scope of Article 13 is not extended to pre-Constitutional
uncodified personal laws.
In this regard, the Kerala High Court judgement in the case of Saumya Ann Thomas v.
Union of India40 is highly important. The Court observed that all laws whether pre
constitutional or post constitutional will have to pass the test of constitutional validity. There
is no reason, in a secular republic, to cull out “personal law” alone and exempt the same from
the sweep of Article 13 and Part III of the Constitution.
This judgement had also been reiterated by the Hon’ble Kerala High Court in the case of
Kunhimohammed v. Ayishakutty41, where the Court held that personal law is also ‘law’. It
is ‘existing law’ and ‘law in force’ as contemplated by the constitutional provisions. Such
stipulations in personal law cannot be out of bounds for Article 13 of the Constitution.
Coming to Article 372 of the Constitution, this Article mandates that subject to other
provisions of the Constitution, all laws in force, in the territory of India immediately before
the commencement of the Constitution, “shall” continue in force until altered or repealed or
amended by a competent legislature or other competent authority.
It leaves no while clarifying that laws falling under the scope of Article 372 is also subject to
Fundamental Rights provisions and falls under the regulating power of the State. It is
37
See: Shaheen Sardar Ali (2011) at 131
38
Reported by Ahmad, an-Nasa’I and at-Tirmidhi; the latter declared it to be sahih
39
Sant Ram v. Labh Singh, 1964 SCR (7) 745
40
Saumya Ann Thomas v. Union of India, 2010 (1) KLJ 449.
39 | P a g
41
Kunhimohammed v. Ayishakutty, 2010 (2) KLT 71.
40 | P a g
recognized that Muslims are governed by the Muslim ‘personal law’ – Shariat. Even before
the commencement of the Constitution, the Muslim Personal Law (Shariat) Application Act,
1937 enforced the ‘Muslim Personal Law’, and as such, the Muslim ‘personal law’ should be
considered as a “law in force”, within the meaning of Article 13(3)(b) and can be altered
under the mandate of Article 372.
3.1.2. Violation of article 14, 15 ,21 and 25
A. Violation of article 21
Article 2142 assures to every person right to life and personal liberty. The scope this right is
very expansive and has become a source of the basic human rights cherished by the
Constitution. Any arbitrary practice is an enemy of individual Liberty. Our Constitution
recognizes the indefeasible right of Life and Personal Liberty in Article 21.
In Maneka Gandhi’s case43, Krishna Iyer, J., held: “personal liberty makes for the worth of
the human person.” It was observed in Francis Coralie v. Delhi44 that right to life includes
the right to live with human dignity. The same observation was made in P. Rathinam v.
Union of India45 alongside a plethora of landmark judgements. Dignity of women and gender
justice are non-negotiable concepts. In today’s liberal society, strive for equal status of
women is paramount. Any practice, though be it customary, has to be done away with if it
degrades the dignity of women. The practice of polygamy is outright repugnant to dignity of
the female spouse. When a Muslim woman contracts a marriage, she aspires a prosperous and
peaceful marital life. Under the Muslim Law, marriage is a contract and contract cannot be
rescinded unilaterally. So when the male spouse contracts a second marriage, the female
spouse has two options:
i) Dissolution of the marriage on the basis of any of the limited nine grounds
highlighted in Section 2 of the Dissolution of Muslim Marriage Act, 1939, or
ii) Silently accept the derogatory practice and share her conjugal rights with a third
person. Such a practice degrades the wife’s dignity, self-esteem, privacy and
conjugal rights, all of which fall under the ambit of Article 21.
42
No person shall be deprived of his life or personal liberty except according to procedure established by law.
43
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
44
Francis Coralie v. Delhi, AIR 1981 SC 746.
45
P. Rathinam v. Union of India (1994) 3 SCC 394.
41 | P a g
Every citizen has a right to safeguard the privacy of his own, his family, his marriage,
procreation, motherhood, child bearing among others. 46 The right to life includes the right to
lead a healthy life so as to enjoy all faculties of the human body in their prime conditions.
The practice of polygamy disrupts the peace of the women and creates a toll on their mental
health. If during the subsistence of a valid marriage the husband had remarried another,
necessarily, that could amount to be mental cruelty towards the first wife. Thus, polygamy is
cruel towards woman and therefore affects her right to peaceful life guaranteed to her under
Article 21.
Matrimony today is not merely in arrangement of convenience for exhausting biological,

physical and carnal urges without offending the norms of morality of the given age. Spouses
today are not merely machines in the assembly line of production to perpetuate the human
race on this planet. The second marriage is not a single but a continuing wrong to the first
wife.47 Gender justice is sine qua non of a progressive democratic society and is
essential for preserving the integrity of the nation. Practices that deny equality of status and
opportunity to women has no place in the modern liberal Society. Any custom or usage
irrespective of even any proof of their existence in pre-Constitutional days cannot be
countenanced as a source of law to claim any rights when it is found to violate human rights,
dignity, social equality and the specific mandate of the Constitution and law made by
Parliament48.
B. Violation of article 25
The phrase "subject to the requirements of Part III 49 in Article 25 of the Constitution, which
grants the right to exercise, profess, and promote religion, signifies that it is subject to
Articles 14 and 15, which ensure equality and non-discrimination. In other words, the
freedom of religion is subject to and, in that sense, subservient to other fundamental rights
under our secular Constitution, such as the right to equality, the right to non-discrimination,
and the right to a life with dignity.
In a Supreme Court judgment in February 2015 stated that “Polygamy was neither an integral
nor the fundamental part of the Muslim religion, and monogamy is a reform within the power
46
Gobind v. State of Madhya Pradesh & Anr. AIR 1975 SC 1378
47
L.K. Swaraj & K.G. Prithvi, Polygamy in Muslim Law: An Overview, 2(2) International Journal of Law
Management and Humanities, (2019)
42 | P a g
48
4 N. Adithayan v. The Travancore Devaswom Board, (2002) 8 S.C.C. 106.
49
Article 25 of Indian constitution act.
43 | P a g
of the State under Article 25 of the Indian Constitution.”50 In case of Khurshid Ahmed
Khan vs. State of U.P51., This judgement by the Supreme Court in 2015 is the first landmark
judgement where the Supreme Court bench of A.K. Goel, J. and S. Thakur, J. have explicitly
declared that polygamy is not an integral part of Islam and is subject to the regulatory power
of the State. In this case, a Muslim man working for the Uttar Pradesh state government was
dismissed from his job for entering into a polygamous marriage.
In Javed v. State of Haryana52 , the Court stated that Polygamy was not integral part of
religion and monogamy was a reform within the power of the State under Article 25. A
practice did not acquire sanction of religion simply because it was permitted. Such a practice
could be regulated by law without violating Article 25.
The Gujarat High Court judgment in R.A. Pathan v. Director of Technical Education 53
which observed that a religious practice ordinarily connotes a mandate which a faithful must
carry out. What is permissive under the scripture cannot be equated with a mandate which
may amount to a religious practice. Therefore, there is nothing in the extract of the Quaranic
text (Surah 4 Verse 3 which permits polygamy) that contracting plural marriages is a matter
of religious practice amongst Muslims. A bigamous marriage amongst Muslims is neither a
religious practice nor a religious belief and certainly not a religious injunction or mandate.
The question of attracting Articles 15(1), 25(1) or 26(b) to protect a bigamous marriage and
in the name of religion does not arise.
In the case of Indian Young Lawyers Association v. State of Kerala54 (popularly known as
the Sabarimala case) D.Y.Chandrachud, J. contradicted the Narasu judgement and observed
that custom, usages and personal law are inherently connected with the civil status of
individuals cannot be granted constitutional immunity merely because they may have some
associational features which have a religious nature. To immunize them from constitutional
scrutiny, is to deny the primacy of the Constitution. The individual, as the basic unit, is at the
heart of the Constitution. Irrespective of the source from which a practice claims legitimacy,
this principle enjoins the Court to deny protection to practices that detract from the
constitutional vision of an equal citizenship.
50
Polygamy not an integral part of Islam: SC, https://timesofindia.indiatimes.com/india/Polygamy-not-
integralpart-of-Islam-SC/articleshow/46180105.cms (last visited Jul. 7, 2020).
51
Khurshid Ahmed Khan vs. State of U.P., (2015) 2 MLJ 237 (SC)
52
Javed v. State of Haryana, AIR 2003 SC 3057.
53
R.A. Pathan v. Director of Technical Education, (1981) 22 Guj LR 289.
54
Indian Young Lawyers Association v. State of Kerala, 2018 SCC OnLine SC 1690.
44 | P a g
In John Vallamattom v. UOI55, the view was clearly expressed at Para 40 that: “Article 25 is
subject to other provisions contained in Part III of the Constitution of India”. It was held that:
Article 25 merely protects the freedom to practice rituals and ceremonies etc. which are only
the integral parts of the religion”
Further, at Para 44, this Hon’ble Court referred to Sarla Mudgal v. UOI56 , wherein it was
held that: “Marriage, succession and the like matters of a secular character cannot be brought
within the guarantee enshrined under Articles 25, 26 and 27”
Thus, it is very clear that marriage and divorce are matters of a secular character and the
guarantee enshrined under Articles 25, 26 and 27 of the men to claim an unbridled, arbitrary,
and unilateral right to discriminate against Muslim women. Articles 25 protects only religious
faith, but not practices that run counter to public order, mortality and health and to the other
provisions of Part III of the Constitution of India.
Thus, in order that a practice be treated as a part of a religion, it is necessary that it be

regarded by the said religion as its essential and integral part. This caution is necessary
otherwise purely secular practices, not essential to religion, will be clothed with religious
sanction and may claim to be treated as religious practices protected under Article 25.
Marriage, particularly in Islam, is a civil contract and has no religious connotations. As
highlighted by Sir Dinshaw Fardunji Mulla, ‘Marriage according to the Mahomedan law is
not a sacrament but a civil contract. All the rights and obligations it creates arises
immediately…. unlike a Hindu marriage, which is a sacrament, according to Islamic law, a
marriage is a permanent and unconditional civil contract (which comes into immediate
effect) made between two persons of opposite sexes with a view to mutual enjoyment and
procreation and legalizing of children.’57
Thus, it is to be noted that a Muslim marriage is purely a secular activity with no religious
overtones. Such activities can be regulated under Article 25(2)(a) which states nothing in
Article 25 shall affect the operation of any existing law or prevent the State from making any
law regulating or restricting any economic, financial, political or other secular activity which
may be associated with religious practice. This is corroborated by Entry 5 of List III of the
Seventh Schedule of the Constitution, which contains the Subject ‘Marriage’. Therefore, both
the State and Union Governments have the power to regulate marital laws. Hence, it is
proved
45 | P a g
55
John Vallamattom v.UOI, (2003) 6 SCC 611
56
Sarla Mudgal v. UOI, ( 1 9 9 5 ) 3 S C C 635
57
Mulla, Principles of Mahomedan Law 338 (LexisNexis 2017).
46 | P a g
beyond doubt that laws regarding marriage can be altered. Thus, it is clear that polygamy and
Nikah Halala is not protected under Article 25. The very reason why Article 25(1) carries
restrictions is that one cannot claim to freely profess, practice and propagate religion by
violating basic human rights of others. Articles 14, 15 and 21 form part of the essential
inalienable right which a citizen derives from the Constitution itself. The rights under Articles
14, 15 and 21 are absolute and are not subject to any restrictions. The restrictions put forth on
Article 25(1) by the makers of the Constitution indicate that Article 25 should be
harmoniously constructed with other Fundamental Rights. The freedom of religion is equally
entitled to all persons viz. both men and women, and a Muslim husband does not have the
right to degrade the dignity of a Muslim wife by virtue of his religious practice.
A complete ban on polygamy and Nikha Halala has long been need of the hour as it renders
Muslim wives extremely insecure, vulnerable and infringes their fundamental rights. A
combined reading of Articles 14, 15 and 21 of the Constitution provides that no law can be
made or can be applied which discriminates against women.
47 | P a g
PRAYER
Wherefore, in the light of the facts presented, arguments advanced and authorities cited, the
Petitioner humbly submit that the Supreme Court be pleased to adjudge and declare that
1. The Notification passed on date 5th February 2021 in State of Karunadu is

unconstitutional.
2. Hijab is an essential practise of religion thus it is protected under the article 25.
3. The practise of Nikah halala and polygamy should be ban as it violates the
fundamental rights of woman.
AND
Pass any other relief, that this Hon’ble High Court of Himadri may deem fit and proper in the
interest of justice, equity and good conscience.
For this act of kindness, the Petitioner shall duty bound forever
pray. Place
State of Karunadu s/d
Date COUNSEL FOR THE PETITIONER
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50 | P a g

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Team Code – AUR17

AMITY NATIONAL MOOT COURT COMPETITION, 2023

BEFORE THE HON’BLE SUPREME COURT OF REPUBLIC OF SAHARA

SLP FILLED UNDER ARTICLE 136 OF THE CONSTITUTION OF

NGO AAZAD & ANRS.........................................................................APPLICANT

THE REPUBLIC OF SAHARA......................................................RESPONDENT

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION

MEMORANDUM ON BEHALF OF THE PETITIONER

DRAWN AND FILED BY THE COUNSEL FOR THE PETITIONER

 Whether notification issued on 5th February 2021 by the State of Karunadu is

8. Mohammad Hanif Quareshi V. State of Bihar, AIR1958 SC.731.

16. Maneka Gandhi v. Union of India, AIR 1978 SC 597.

26. Sarla Mudgal v. UOI,(1995)3 S CC 635

ACTS & STATUTES

1. The Indian Penal Code, 1860

2. The Constitution of India, 1950

3. The Code of Criminal Procedure,1973

4. The Muslim Personal Law (Shariat) Application Act, 1937

5. The Karnataka Education act 1983

BOOKS AND REFERENCES

1. Basu D.D, Constitution of India ,14th edition 2009, LexisNexis, Butterworths

CONVENTIONS AND TREATIES

1. International covenant on Economic, social and cultural rights, 1966

2. United Nation Declaration on Human rights 1948

1. Air Web World

1. The Republic of Sahara is a sovereign, socialist, secular, and democratic republic,

Whether notification issued on 5th February 2021 by the State of Karunadu is

1. Whether notification issued on 5th February 2021 by the State of Karunadu is

Whether notification issued on 5th February 2021 by the State of Karunadu is

1.1 Violation of article 25

Explanation I. - The wearing and carrying of kirpans shall be deemed to be included in

In case of Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra

Under Article. 26 (b), therefore, a religious denomination or organization enjoys complete

In case Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan, (hereafter

2.1 Essential practise

1.1. Polygamy and Nikah Halala in Personal law

1.1.1. Muslim Personal Law

B. In context of Nikah Halala

1.1.2. Scope of article 13 on Muslim personal law

3.1.2. Violation of article 14, 15 ,21 and 25

Matrimony today is not merely in arrangement of convenience for exhausting biological,

Thus, in order that a practice be treated as a part of a religion, it is necessary that it be

1. The Notification passed on date 5th February 2021 in State of Karunadu is

State of Karunadu s/d

Date COUNSEL FOR THE PETITIONER

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