TEAM CODE: N13

VITSOL ANNUAL INTRAMURALS MOOT COURT

COMPETITION, 2022-2023

BEFORE THE HON’BLE SUPREME COURT OF INDIA

IN THE MATTER OF
W.P. (CIVILt) NO. 1 of 2021

SAMEERA PRAVEEN AHMED AND v. STATE OF UTTARAKHAND AND ANR

ORS

MEMORANDUM ON BEHALF OF THE PETITIONER

COUNSEL FOR THE PETITIONER.

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TABLE OF CONTENTS PAGE. NO.

LIST OF ABBREVIATIONS 3

INDEX OF AUTHORITIES
1. INDIAN CASES 4
2. INTERNATIONAL CASES 5
3. STATUTES 6
4. JOURNALS 6
5. WEBSITES 6

STATEMENT OF JURISDICTIONS 7

STATEMENT OF FACTS 7

ISSUES RAISED 8

SUMMARY OF ARGUMENTS 9

ARUGMENTS ADVANCED 10

PRAYER 24

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LIST OF ABBRIEVIATIONS

ABBREVIATION EXPANSION

AIR All India Reporter

Anr Another
Art Article
Bom Bombay
Del Delhi
Hon’ble Honourable
HC High Court
No. Number
Ors Others
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court reporter
UOI Union of India
v. Versus
Vol Volume

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INDEX OF AUTHORITIES

I. INDIAN CASES
CASE TITLE CITATION PAGE NO.
1. S.R Bommai v. Union of India 1994 AIR 1918 12

2. Stainislaus Rev v. State of MP 1977 AIR 908 12

3. Commissioner Hindu Religious Endowments 1954 AIR 282 12
Madras v. Sri L T Swamiar of Sri Shriur Matt
4. Ratilal Panachand Gandhi v. State of Bombay 1954 AIR 388 13

5. Francis Coralie Mullin vs The Administrator 1981 AIR 746 14

Shyaml

6. Lata Singh v. State of Uttar Pradesh AIR 2006 SC 2522 14

7. Salamat Ansari vs. State of UP 2020 SCC OnLine 14
All 1382

8. Asha Ranjan vs. State of Bihar 2017 Latest 15

Caselaw 140 SC
9. Shafin Jahan vs. Asokan K.M. and Others (2018) 16 SCC 368 15
10. Justice K S Puttaswamy vs. Union of India (2017) 10 SCC 1 16, 18, 20
11. Sodan Singh Etc. Etc vs New Delhi Municipal 1989 AIR 1988 17
Committee

12. Alagaapuram R. Mohanraj And Ors vs Tamil Nadu 2016 SCC OnLine 17
Legislative Assembly SC 134

13. Gotimayum Birahari Sarma vs Thingnam Ibomcha AIR 1988 SC 1060 17

Singh and Anr

14. Kharak Singh v. The State of U.P. 1963 AIR 1295 18

15. Evangelical Fellowship of India v. State of (2012) SCC 18
Himachal Pradesh OnLine HP 5554

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16. Lily Thomas v. Union of India (2000) 6 SCC 224 18

17. Ranjeet Suryakant Mohite v. The Union of India 2014 SCC OnLine 18
Bom 1121

18. Commissioner of Police v. Acharya (2004) 12 SCC 770 14, 19

Jagdishwarananda Avadhuta

19. S.R. Bommai v. Union of India (1994) 3 SCC 1 20

20. Muhammad Ibrahim v. Atkia Begum & Anr 16 Ind Cas 597 21
21. Mohiuddin v. Khatijabibi (1939) 41 BOMLR 21
1020

22. Nasra Begum v. Rizwan Ali AIR 1980 All 118 22

23. Chand Patel vs Bismillah Begum & Anr (2008) 4 SCC 774 22

24. Mussammat Kaniza vs. Hasan Ahmad Khan 92 IC1926 22

25. Taliamand vs. Muhammad Din 129 IC 1931 22
26. Rahiman Bibi Saheba vs. Mahboob Bibi Saheba ILR 1938 page 278 22
27. Guljar Khan v. The Sate of Madhya Pradesh and ors 2022 LiveLaw 24
(MP) 20

II. INTERNATIONAL CASES

S.No CASE TITLE CITATION PAGE NO.
1. Jane Roe v. Henry Wade 410 U.S. 113 (1973 18

2. NAACP v. Patterson 357 U.S. 449, 464 19

(1958).

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III. STATUES
S. NO TITLE OF LEGISLATION PAGE NO.

1. The Constitution of India Passim

2. The Uttarakhand Freedom of Religion Act, 2018 Passim

IV. JOUNARLS
S. NO TITLE OF JOURNAL PAGE. NO
1. All India Reporter (AIR) Passim
2. Supreme Court Cases (SCC) Passim
3. Delhi Law Times (DLT) Passim
4. Supreme Court Reporter (SCR) Passim
5. Madras Law Journal (MLJ) Passim

V. WEBSITES
S. NO TITLE PAGE NO.
1. www.indiankanoon.com Passim

2. www.livelaw.in Passim

3. www.manupatrafast.com Passim

4. www.lexisnexis.com Passim

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STATEMENT OF JURISDICTION

The Petitioner has approached the Hon’ble Supreme Court of India under Article 32 1 of the
Constitution of India.

The present memorial on behalf of the petitioner sets forth the facts, contentions and
arguments in the present case

STATEMENT OF FACTS

BACKGROUND

Sameera Praveen Ahmed and Praveen Ahmed are both persons who are majors. They got married
on 10th November 2021. The nikah was conducted at the house of Mohammed Ahmed, a relative
of Shahul Ahmed, officiated by the Maulvi and two male adult witnesses (M. Said and M. Sunand).
Mehr was given as per Mohammedan tradition and law, followed by registration of the marriage.
Thus, the due essentials so as to constitute a valid Muslim marriage (Sahih) were satisfied.

UTTARAKHAND FREEDOM OF RELIGION ACT, 2018

The Uttarakhand Freedom of Religion Act, 2018, is a state legislation that inter alia seeks to
prohibit religious conversions which are involuntary or means or by marriage by making it an
offence.

1
INDIAN CONST. art. 226.

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STATEMENT OF ISSUES

ISSUE I

WHETHER THE ACT HAS CURTAILED THE RIGHT TO FREEDOM OF CHOICE?

ISSUE II

WHETHER THE PRIVACY OF THE PARTIES STANDS ADVERSELY AFFECTED UNDER

THE ACT?

ISSUE III

WHETHER THE MARRIAGE BETWEEN THE PARTIES CANNOT BE DECLARED NULL

AND VOID?

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SUMMARY OF ARGUMENTS

[ISSUE 1] WHETHER THE ACT HAS CURTAILED THE RIGHT TO FREEDOM OF

CHOICE?

The right bestowed upon an individual by virtue of Article 19, 21 and 25, to choose their life, i.e.,
their religion, partner and profession and enjoy the same without unreasonable restriction and
infringement is of paramount importance and value. The same is being arbitrarily, inefficiently and
unreasonably encroached upon and violated by the state through the Act.

[ISSUE 2] WHETHER THE PRIVACY OF THE PARTIES STANDS ADVERSELY

AFFECTED UNDER THE ACT?

An individual’s religion is a matter just between man and God and not between man and state
therefore, compelling anyone to divulge and explain such connection would be inhumane, immoral
and unlawful act to the protected rights given to every individual. Thus the Act violates the right
to privacy bestowed upon them by virtue of Article 21 of the Constitution.

[ ISSUE 3] WHETHER THE MARRIAGE BETWEEN THE PARTIES CANNOT BE

DECLARED NULL AND VOID?

The only possible ground available to the trial court to nullify the marriage is not on account of the
marriage being void in the eyes of Muslim personal laws but merely by virtue of section 6 of the
Act. The Supreme Court has numerous times reminded us that the Fundamental Rights bestowed
by the Constitution of India are put on the paramount pedestal and the same came only be curtailed
by reasonable restrictions laid down by law and the restriction laid down by the Act are anything
but reasonable, hence the marriage cannot and should not have been declared as void.

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ARGUMENTS ADVANCED

[I] WHETHER THE ACT HAS CURTAILED THE RIGHT TO FREEDOM OF

CHOICE?

1.1 Right to Freedom of religion

1. Religion is a matter of belief or faith. The constitution of India recognizes the fact, how
important religion is in the life of people of India and hence, provides for the right to
freedom of religion under Articles 25 to Article 28. The Constitution of India envisages a
secular model and provides that every person has the right and freedom to choose and
practice his or her religion. In a number of cases, the Apex Court has held that secularism
is the basic structure of the Constitution. Article 25 of the Indian Constitution reads as
follows; (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. It is pertinent to note that though the right to
choice of religion can definitely be interpreted as a part of life and hence as another right
under the right to life under article 21, the makers of the constitution had eruditely
dedicated a separate article to re-enforce the importance and significance of an individual’s
right to choose a religion of their choice and practise it, let alone profess and propagate it.
In this juncture it is important to look at the Act itself.
2. Though the act claims to primarily, inter alia, Prohibit religious conversions which are
effected through misrepresentation, force, undue influence, coercion, allurement or by any
fraudulent means or by marriage by making it an offence, the question arises as to whether
the execution has a reasonable and justifiable nexus with the intention.
3. Conversion is a wholly individualistic choice and is more often than not one of great
thought and value in as far as the person who is converting is concerned. Further leading a
person to convert is a logical and inherent aspect of the right to profess and propagate one’s
religion as the object of propagating would be so that others can share in what one believes
to be the right belief for whatsoever reason maybe as that is a wholly independent
discussion. Thus, right to induce or influence conversion is a part of the right to propagate
one’s religion. However, the same does not translate to a right to induce or influence by
any means whatsoever. Not limited to the religious aspects, fraud, misrepresentation, undue
influence, coercion and allurement are not accepted methods of effecting anything, they

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are in fact punishable and looked down upon in almost all applications. Religion being
something as near and dear to an individual, further acting in many instances as a central
and fundamental aspect of their lives, undoubtedly fraudulent and other such illegitimate
aspects must be weeded out, However, in the pursuit of removing the weeds for the plants
to grow better, we must not get carried away thereby letting the plants themselves die, else
the very purpose of what we set out to do is drastically affected.
4. The act seeks to weed out such undesirable modes or aspects of conversion by making such
acts a punishable offense which is commendable and undoubtedly a step in the right
direction, however as we read further and look into section 8, it is yet another case where
in the pursuit of removing the weeds, the plants themselves are being jeopardized. The state
is entitled to lay reasonable restriction in the affairs of individuals, however the same is
subject due public order and interest and due processes established by law, but the same
must also be reasonable and fair. In the instant case, the act seems to go above and beyond
the call of duty wherein it arguably purports to achieve its goal of curtailing conversions
that are not genuine, but also severely affect those which are in fact genuine. Thus, though
the act gives rise for a fair share of wrongdoers who misuse the right to practise and
propagate their religion to be restricted, punished and be held accountable the act also lays
down unreasonable restrictions on those who want to practise or propagate their religion in
a genuine way, just as the makers of the constitution and the very ethos of our country
intended them to.
5. While dealing with the concept of ‘secularism’ in detail, the Supreme Court in S.R Bommai
v. Union of India2 explained that under the Constitution, secularism does not mean an
atheist society but a heterogeneous society providing equal status to all religions without
favouring or discriminating against anyone. Hence to in application, treating an individual
differently, more so in an apprehensive manner with the presumption that their choice to
practise a particular religion or to merely facilitate an individual’s rightful choice to practise
a particular religion is in stark contempt of the principle and ethos of our state and
constitution as emphasized specifically of the Courts.
6. What does profess, practice and propagate mean? The court in Stainislaus Rev v. State of
MP3 explained that freedom of ‘profession’ means the right of the believer to state his creed
in public whereas freedom of ‘practice’ means his right to give expression in forms of
private and public worship. The court also explained that the right to propagate one’s
religion means the right to communicate a person’s beliefs to another person or to expose
the tenets of that faith, but shall not include the right to ‘convert’ another person to the

2
1994 AIR 1918
3
1977 AIR 908

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former’s faith. In the Commissioner Hindu Religious Endowments Madras v. Sri L T

Swamiar of Sri Shriur Matt4, the Court held that ‘profess’ means ‘right to freely declare of
one’s faith”.
7. The right to choose a religion and practise or propagate it is a wholly individualistic choice
and the same need not have to be explained to or be scrutinized by anyone. Religion and
religious beliefs are very personal to any individual and to say that the same can be
validated only by the prerogative of a police official(s) and a district magistrate as found in
section 8 of the act, is a clear cut case of unjustified overreach and intrusion by the state.
8. The Supreme Court in Commissioner, Hindu Religious Endowments, Madras v. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt ruled that there is no doubt that religion
finds its basis in the system of doctrines regarded by those who profess that religion, but it
will not be correct to say religion is nothing but a doctrine or belief.
9. Thus, religion is in all accounts much more than mere doctrines, systems or conventions
and to have the same validated let alone regulated, even for purely technical purposes other
than maybe a religious authority let alone mere officials is paramount sacrilege. In Ratilal
Panachand Gandhi v. State of Bombay, 5 the Supreme Court stated that Article 25
guarantees every person (not only citizens) the freedom of conscience and right to freely
profess, practise and propagate religion imposed with certain restrictions by the State.
These restrictions are: Public order, morality and health and other provisions of the
Constitution (Clause 1 of Article 25); Laws relating to or restricting any economic,
financial, political, or other secular activities associated with religious practices. (Clause
2(a) of Article 25); Social welfare and reform that might interfere with religious practices.
It is pertinent to note that the restrictions being imposed by virtue of the act do not fall
under the above.
10. Further even in terms of general criminal jurisprudence, when offences falling under the
ambit of fraud, misrepresentation, force, undue influence, coercion and allurement the
suspect is presumed innocent until proven guilty; For example, if the impugned act is a
financial transaction that is alleged to have an element of fraud or coercion in it, the
individual is presumed to have done the act genuinely, in good faith and without s elements
like fraud or coercion. However the act operates with a presumption of guilt. The act first
seems to presume that any conversion is likely to have been a result of misrepresentation,
force, undue influence, coercion, allurement or fraud and is by default void and that only
on scrutiny by police and approval of a district magistrate the said conversion would be

4
1954 AIR 282
5
1954 AIR 388

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valid. This in my opinion is in contravention to the principles of our legal jurisprudence

and is not good law.

11. The Supreme Court court in Stainislaus Rev v. State of MP 6 upheld that, “"What is
penalised is conversion by force, fraud or by allurement. The other element is that. every
person has a right to profess his own religion and to act according to it. Any interference
with that right of the other person by resorting to conversion by force, fraud or allurement
cannot, in our opinion, be said to contravene Article 25(1) of the Con- stitution of India, as
the Article g uarantees religious freedom subject to public health. As such, we do not find
that the provisions of sections 3, 4 and 5 of the M.P. Dharma Swatantraya Adhiniyam, 1968
are violative of Article 25(1) of the Constitution of India. On the other hand, it guarantees
that religious freedom to one and all includ- ing those who might be amenable to conversion
by force, fraud or allurement. As such, the Act, in our opinion, guarantees equality of
religious freedom to all, much less can it be said to encroach upon the religious freedom of
any particular individual."

12. To lay down that a choice to convert to a particular religion and the validity of the same is
merely subject to a third person, let alone the state is violative of the rights bestowed by
Article 25. Further even if the validity of the conversion is inherently and by default valid
and the scrutiny and approval of the magistrate was but a subsequent event in the
chronology of the conversion, it would have a nexus with the object of the code to curtail
and weed out conversions that are not genuine. However, as it stands, section 8 of the Act
stands to be in contravention with the Constitution of India and legal jurisprudence in
general.

1.2 Right to Choose Partner of Choice

1. Article 21 of the Constitution bestows the right to life and personal liberty to every person.
In Francis Coralie Mullin vs The Administrator7, Justice P. Bhagwati had said that Article
21 ’embodies a constitutional value of supreme importance in a democratic society’.
Further, Justice Iyer characterised Article 21 as ‘the procedural Magna Carta protective of
life and liberty’. The right to life is undoubtedly the most fundamental of all rights. All
other rights add quality to the life in question and depend on the pre-existence of life itself

6
1977 AIR 908
7
1981 AIR 746

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for their operation. As human rights can only attach to living beings, one might expect the
right to life itself to be in some sense primary since none of the other rights would have
any value or utility without it. There would have been no Fundamental Rights worth
mentioning if Article 21 had been interpreted in its original sense. 8 The courts have come
to elucidate that under this Right of paramount importance also exists the right to marry
the person of choice. In Lata Singh v. State of Uttar Pradesh,9 the Supreme Court viewed
the right to marry as a component of right to life under Art 21 of Indian Constitution the
court observed that: “This(India) is a free and democratic country, and once a person
becomes a major he or she can marry whosoever he/she likes.” The Court further opined
that in the event of the Individual’s family not agreeing or is in disapproval of the marriage,
the maximum they can do is that they can cut off social relations with the son or daughter.
In the case of Salamat Ansari vs. State of UP10, the Court observed that the fact that the
wife, i.e., one of the partners in the marital relationship is filing the petition in favor of their
marriage shows that she is voluntarily living with her husband as a married couple. The
Court eruditely held that, “An individual on attaining majority is statutorily conferred a
right to choose a partner, which if denied would not only affect his/her human right but also
his/her right to life and personal liberty, guaranteed under Article 21 of the Constitution of
India.” (in para 14)
2. In 2014, the Supreme Court took suo motu cognizance of newspaper reports of the gang
rape of a 20-year-old Indian woman on the orders of a village court In Re: Indian Woman
says gang-raped on orders of Village Court published in Business & Financial News dated
23.01.2014. The Supreme Court in no uncertain terms held that “an inherent aspect of
Article 21 of the Constitution would be the freedom of choice in marriage. Such offences
are resultant of the States incapacity or inability to protect the Fundamental Rights of its
citizens.” Article 21, which deals with the right to life and personal liberty, is an all-
encompassing provision which includes within its fold the inherent right to marry someone
of one's own choice.
3. In Asha Ranjan vs. State of Bihar11, the Supreme Court again declared the right of a person
in choosing a partner to be legitimate constitutional right recognized under Article 19 of
the Constitution of India. The judgment reads: "61. ...choice of woman in choosing her
partner in life is a legitimate constitutional right. It is founded on individual choice that is

8
https://www.lawctopus.com/academike/article-21-of-the-constitution-of-india-right-to-life-and-personal-liberty/
9
AIR 2006 SC 2522
10
2020 SCC OnLine All 1382

11
2017 Latest Caselaw 140 SC

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recognized in the Constitution under Article 19, and such a right is not expected to succumb
to the concept of "class honour" or "group thinking"

4. In a Habeas Corpus Petition Shafin Jahan vs. Asokan K.M. and Others12 again right of an
individual to marry without any interference came up before the Supreme Court held that
“It is obligatory to state here that expression of choice in accord with law is acceptance of
individual identity. Curtailment of that expression and the ultimate action emanating there
from on the conceptual structuralism of obeisance to the societal will destroy the
individualistic entity of a person. The social values and morals have their space but they
are not above the constitutionally guaranteed freedom. The said freedom is both a
constitutional and a human right. Deprivation of that freedom which is ingrained in choice
on the plea of faith is impermissible. Faith of a person is intrinsic to his/her meaningful
existence. To have the freedom of faith is essential to his/her autonomy; and it strengthens
the core norms of the Constitution. Choosing a faith is the substratum of individuality and
sans it, the right of choice becomes a shadow. It has to be remembered that the realisation
of a right is more important than the conferment of the right. Such actualisation indeed
ostracises any kind of societal notoriety and keeps at bay the patriarchal supremacy. It is so
because the individualistic faith and expression of choice are fundamental for the
fructification of the right. Thus, we would like to call it indispensable preliminary condition.
5. Non-acceptance of her choice would simply mean creating discomfort to the constitutional
right by a constitutional court which is meant to be the protector of fundamental rights.
Such a situation cannot remotely be conceived. The duty of the court is to uphold the right
and not to abridge the sphere of the right unless there is a valid authority of law. Sans lawful
sanction, the centripodal value of liberty should allow an individual to write his/her script.
The individual signature is the insignia of the concept. In the case at hand, the father in his
own stand and perception may feel that there has been enormous transgression of his right
to protect the interest of his daughter but his viewpoint or position cannot be allowed to
curtail the fundamental rights of his daughter who, out of her own volition, married the
appellant. Therefore, the High Court has completely erred by taking upon itself the burden
of annulling the marriage between the appellant and Respondent 9 when both stood
embedded to their vow of matrimony.

6. In Justice K S Puttaswamy vs. Union of India13 reported in, this Court in a decision of nine
judges held that the ability to make decisions on matters close to one's life is an inviolable

12
(2018) 16 SCC 368, AIR 2018 SC 1933
13
(2017) 10 SCC 1

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aspect of the human personality: "298. ...The autonomy of the individual is the ability to
make decisions on vital matters of concern to life... The intersection between one's mental
integrity and privacy entitles the individual to freedom of thought, the freedom to believe
in what is right, and the freedom of self-determination... The family, marriage, procreation
and sexual orientation are all integral to the dignity of the individual."

7. Further, just because an individual converts to a different religion closely before or after
their marriage, it cannot be ignorantly assumed that the same was done only for the purpose
of said marriage. The same can be more evidently gleaned in instances where the parties to
the marriage take up the decision on their own accord and not necessarily by virtue of their
families as preceding their marriage they would’ve spent significant amounts of time with
each other and over the course of the same been exposed to the religion of the other and as
a result might voluntarily choose to convert. In this case the person who’s religion the other
person is converting too is simply a facilitator to the conversion and is not converting the
person. Thus, even in instances of marriage, especially love marriages, such conversions
can simply be construed as one individual enjoying their right to profess and propagate
their religion and the other choosing to practise the said religion.
8. Thus, sections 6 and 7 of the Act unreasonably restricts and violates the right of choice
bestowed by the Constitution of India.

1.3 Right to carry out Profession of choice

1. On 30 August, 1989, The Supreme Court of India in Sodan Singh Etc. Etc vs New Delhi
Municipal Committee14 elucidated the definition of ‘Profession and the other terms in
article 19. The same was confirmed in Alagaapuram R. Mohanraj And Ors vs Tamil Nadu
Legislative Assembly15. The relevant part of the judgement is extracted below “The
guarantee under Article 19(1)(g) extends to practice any profession, or to carry on any
occupation, trade or business. 'Profession' means an occupation carried on by a person by
virtue of his personal and specialised qualifications, training or skill. The word 'occupation'
has a wide meaning such as any regular work, profession, job, principal activity,
employment, business or a calling in which an individual is engaged. 'Trade' in its wider
sense includes any bargain or sale, any occupation or business carried on for subsistence
or profit, it is an act of buying and selling of goods and services. It may include any business
carried on with a view to profit whether manual or mercantile. 'Business' is a very wide
term and would include anything which occupies the time, attention and labour of a man

14
1989 AIR 1988
15
2016 SCC OnLine SC 134

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for the purpose of profit. It may include in its form trade, profession, industrial and
commercial operations, purchase and sale of goods, and would include any- thing which is
an occupation as distinguished from pleasure. The object of using four analogous and
overlapping words in Article 19(l)(g) is to make the guaranteed right as comprehensive as
possible to include all the avenues and modes through which a man may earn his livelihood.
In a nut-shell the guarantee takes into fold any activity carried on by a citizen of India to
earn his living. The activity must of course be legitimate and not anti-social like gambling,
trafficking in women and the like.”

2. On 1 September, 1959 madras high court in Gotimayum Birahari Sarma vs Thingnam

Ibomcha Singh and Anr.16 right to be a priest.

3. Enabling a person to or facilitating a person in their choice to convert to a particular religion

is an inalienable part of being a priest or religious authority. It is an authority vested within
them and they can do so, thereby managing their own religious affairs so as to effect the
conversion of an individual should they desire to do so. It is a fundamental part of their
calling and being. Having to give a notice is completely fair and reasonable, however, to
say that it is only the state that can validate a religious conversion and not the religious
authority whose sole prerogative it is to do so. Thus Section 8 of the Act, lays down an
unreasonable restriction in the carrying out of their profession and violates the Right and
Freedom bestowed by Article 19(1)(g) of the Constitution of India

[II] WHETHER THE PRIVACY OF THE PARTIES STANDS ADVERSELY

AFFECTED UNDER THE ACT?

1. In the instant case, the right to privacy is twofold, Right to Privacy in Marriage as seen
above and Right to Privacy in choice of Religion. Article 21 of the Indian Constitution

16
https://indiankanoon.org/doc/1462745/?type=print

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encompasses within itself right to privacy. In Kharak Singh v. The State of U.P. 17 the
Supreme Court held that 'personal liberty' in article 21 is comprehensive enough to include
all varieties of rights which shape the personal liberty of a man. Subba Rao J writing for
the minority opined that the word 'liberty' in article 21 was exhaustive enough to include
Right to privacy also even though, not expressly worded in the Constitution. Recently, the
Supreme Court in the case of Justice Puttaswamy (Retd.) v. UOI18 recognised privacy not
just as a fundamental right emanating from article 21 but as an inalienable natural right of
every human being. Privacy is essential for meaningful exercise of other freedoms
enshrined in Part-III of the Constitution of India such as “freedom of speech and
expression”, “freedom of conscience and personal liberty”
2. Individuals have right to decisional autonomy, within one’s mental space, to make personal
choices in various facets of life including the belief and religion one wants to espouse or
not. 19 The other right which immediately follows the aforementioned one is the
individual’s right to hold that information within the four walls of his mind and not disclose
it to the world in absence of the sufficient reasons to do so.20 Every individual has a right
to be let alone21 in his sphere to safeguard privacy of his own and his family22 and be able
protect other interests and rights.23

3. Religious convictions of a person stem from the depth of the heart and mind24 and are an
object of conscientious devotion, faith and pietism. The State, individual or society cannot
compel divulsion of one’s religious beliefs because religious beliefs are very privy to an
individual.25 The wordings of the High Court of Himachal Pradesh would be most apt to
quote here: “A person not only has a right of conscience, the right of belief, the right to
change his belief, but also has the right to keep his beliefs secret.”

4. A man's mind is the impregnable fortress in which he thinks and is invasion-proof unless
the person is expressing or propagating his thoughts in such a manner that will cause public
disorder or affect the unity or sovereignty of the country. Man’s relation to his God is no
concern of the state. 26 There is a difference between the outer and inner man. 27 One’s

17
1963 AIR 1295
18
(2017) 10 SCC 1, AIR 2017 SC 4161
19
Evangelical Fellowship of India v. State of Himachal Pradesh, (2012) SCC OnLine HP 5554
20
Jane Roe v. Henry Wade, 410 U.S. 113 (1973
21
VN Shukla, Constitution of India 198 (Eastern Book Company, Lalbagh, Lucknow, 11th edn., 2011)
22
Supra note 28
23
Charles Warren and Louis D. Brandeis, “The Right to Privacy” 4 Harvard Law Review 193 (1890)
24
Lily Thomas v. Union of India (2000) 6 SCC 224
25
Ranjeet Suryakant Mohite v. The Union of India, 2014 SCC OnLine Bom 1121
26
Commissioner of Police v. Acharya Jagdishwarananda Avadhuta (2004) 12 SCC 770
27
Milton R. Konvitz, “Privacy and the Law: A Philosophical Prelude” 31(2) Law and Contemporary Problems 272
(1966).

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religion comes under the internal aspect of the religion of an individual’s life and family
and his home. Thus, infringement by the state in internal aspect of the ‘freedom to profess,
practice and propagate religion’,28 would amount to violation of right to religion of not only
that individual but his family too.29

5. The international jurisprudence on the compulsory disclosure of religion, elaborated by

various courts is consistently clear. Courts have consistently reiterated that an individual
has a right not to reveal his religious beliefs to be invaded by the State in name of law. The
United States Supreme Court in NAACP v. Patterson30 was adjudging the challenge to
State of Alabama’s demand from National Association for the Advancement of Coloured
People (NAACP) to disclose its list of members. Such imperative disclosure of the
NAACP’s membership lists, was held to be violative of the privacy of group association,
an essential to the ‘freedom of association’. The court noted that: We think it apparent that
compelled disclosure of the petitioner’s membership is likely to affect adversely the ability
of petitioner and its members to pursue their collective effort to foster beliefs which they
admittedly have the right to advocate. The court stated that the compulsory disclosure
would discourage individuals from joining the association.31 In July 2001 Data Protection
Authority in Greece removed a compulsory obligation on Greek citizens to divulge their
religion beliefs on the Greek ID card, on the grounds that such practice would promote
presumptions drawn on the citizens on the basis of their religion and would be violative of
the ‘neutrality principle’,32 a basic tenet of the pluralistic, democratic and secular state.
Thus, it held that33: No-one may be obliged by any means to reveal, directly or indirectly,
their religion or religious convictions; consequently, no-one may be obliged to act or refrain
from acting in ways that could serve as a basis for presumptions regarding the existence or
otherwise of these convictions. Democratic and secular policies were given weightage. The
Court recognised and emphasised the point that extraction of such data from nationals
posed a natural challenge of subjectivity and discrimination therefore would run to the very
principles of the State

28
Supra note 37
29
Supra note 27
30
NAACP v. Patterson, 357 U.S. 449, 464 (1958).
31
Vasudev Devadasan, The Rajasthan High Court’s Religious Conversion and Marriage “Guidelines”: Some
Privacy Concerns, Indian Constitutional Law and Philosphy (Aug. 28, 2017), available at:
https://indconlawphil.wordpress.com/2017/08/28/the-supreme-courts-right-to-privacy-judgment-ii-privacy-
theindividual-and-the-publicprivate-divide/(last visited on Nov. 20, 2019)
32
Julian Baggini, “A Secular State Must be Neutral' – What does that Mean Exactly?”, The Guardian, Feb. 16, 2012,
available at:https://www.theguardian.com/commentisfree/2012/feb/16/what-mean-secular-state-neutral (last visited
on Nov. 15 2019). 68
33
Ibid.

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6. Constitution Bench of nine judges in Justice KS Puttaswamy (retd) and another v. Union
of India and others34. The Court unanimously held that “the right to privacy is protected as
an intrinsic part of the right to life and personal liberty under Article 21”. In the majority
opinion delivered by Dr. DY Chandrachud J, the Court in paragraph 81 held that in the
Indian context, the fundamental right to privacy would cover at least the following three
aspects - (i) privacy that involves the person, (ii) informational privacy and (iii) privacy of
choice, which protects an individual’s autonomy over fundamental personal choices. The
Court further opined, "Privacy represents the core of the human personality and recognizes
the ability of each individual to make choices and to take decisions governing matters
intimate and personal.” Eventually, in its conclusion, it held “Privacy includes at its core
the preservation of personal intimacies, the sanctity of family life, marriage, procreation,
the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy
safeguards individual autonomy and recognises the ability of the individual to control vital
aspects of his or her life. Personal choices governing a way of life are intrinsic to
privacy….”

7. As the great American President Thomas Jefferson said, an individual’s religion is a matter
just between man and God and not between man and state therefore, compelling anyone to
divulge and explain such connection would be inhumane, immoral and unlawful act to the
protected rights given to every individual. Religion, faith or belief of a person is immaterial
to the state35.

8. Thus, though the state may claim that the notice that is mandated by the Act in section 8 is
for prevention of conversions that are not genuine and forced, the same violated the Right
to privacy bestowed by the Constitution of India as elucidated above.

[III] WHETHER THE MARRIAGE BETWEEN THE PARTIES CANNOT

BE DECLARED NULL AND VOID?

1. First let us look at the essentials of a Muslim Marriage. The following are the essentials for
a valid Muslim Marriage in no particular order as provided by Muslim Personal Laws:
a) Proposal & Acceptance: In a Muslim marriage, Proposal means ‘ijab’ & Acceptance of the
same is ‘qubul’. A proposal should be done by or on behalf of one party & the same offer
should be accepted by other party. Like we see for a valid contract, Offer & Acceptance is
must. It is the starting point of a contract. Same applies in Muslim marriage as it is also a

34
(2017) 10 SCC 1
35
B.P. Jeevan Reddy, J., S.R. Bommai v. Union of India (1994) 3 SCC 1

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Civil contract so proposal & acceptance should happen to initiate a contact (marriage). It
is also important that when the offer is made & when the acceptance is done. Because offer
& acceptance should be done out at the same meeting. If proposal is made at first meeting
& acceptance is done in another meeting, then it can’t be considered as a valid offer &
acceptance.

b) Majority: For a valid Muslim Marriage, both the parties must attain the age of puberty i.e.,
09 years of age for girl & 12 years of age for a boy. The minimum age or the age of puberty
for a Muslim marriage is discussed in the case of Muhammad Ibrahim v. Atkia Begum &
Anr36. After attaining the minimum age, the parties can give their own consent, even there
is no need of consent from guardians.
c) Free Consent: Free consent of both boy & girl is must for a valid Muslim marriage. Free
consent means the consent should not be obtained from Coercion, Fraud or Mistake of Fact.
If consent is obtained from all these things, then the contract is invalid. A marriage is
invalid if it is held without free consent of the parties, held in the case of Mohiuddin v.
Khatijabibi37

d) Dower: It is also known as ‘mahr’. It is the amount of money which the bridegrooms must
give to the bride as a consideration of marriage. It is same as the consideration in a valid
contract. Like without consideration the contract is invalid, same as without consideration
the Muslim marriage is invalid. Right to Mahr comes into existence before cohabitation. If
wife is a minor, her guardians can refuse to send to her husband until payment of dower
held in the case of Nasra Begum v. Rizwan Ali38

2. The Supreme Court of India in Chand Patel vs Bismillah Begum & Anr39 reiterated and
affirmed the judgements in the case of Mussammat Kaniza vs. Hasan Ahmad Khan 40
(decided on 24th November, 1925 and by the Lahore High Court in Taliamand vs.
Muhammad Din 41 decided on 16th July, 1930, and also by the Madras High Court
in Rahiman Bibi Saheba vs. Mahboob Bibi Saheba42 in Paragraph 264 which deals with
the distinction between void and irregular marriages reads as follows:-

36
16 Ind Cas 597
37
(1939) 41 BOMLR 1020
38
AIR 1980 All 118
39
(2008) 4 SCC 774. AIR SC 1915
40
92 IC1926
41
129 IC 1931
42
ILR 1938 page 278

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"264. Distinction between void and irregular marriages

(1) A marriage which is not valid may be either void or irregular.

(2) A void marriage is one which is unlawful in itself the prohibition against the marriage being
perpetual and absolute. Thus, a marriage with a woman prohibited by reason of consanguity,
affinity, or fosterage is void, the prohibition against marriage with such a woman being perpetual
and absolute.

(3) An irregular marriage is one which is not unlawful in itself, but unlawful "for something else,"
as where the prohibition is temporary or relative, or when the irregularity arises from an accidental
circumstance, such as the absence of witnesses. Thus, the following marriages are irregular,
namely

(a) a marriage contracted without witness;

(b) a marriage with a fifth wife by a person having four wives;

(c) a marriage with a woman undergoing iddat;

(d) a marriage prohibited by reason of difference of religion;

(e) a marriage with a woman so related to the wife that if one of them had been a male, they could
not have lawfully intermarried.”

3. As seen above in the words of the Supreme Court, a Muslim marriage that isn’t hit by the
aforementioned conditions is perfectly valid. In the instant case, the marriage between the
parties isn’t hit by any of the conditions and further fulfils all essentials according to the
Muslim personal law. Thus, we can see that the only possible ground available to the trial
court to nullify the marriage is not on account of the marriage being void in the eyes of
Muslim personal laws but merely by virtue of section 6 of the Act. As I will expound in
the following issues, the Supreme Court has numerous times reminded us that the
Fundamental Rights bestowed by the Constitution of India are put on the paramount
pedestal and the same came only be curtailed by reasonable restrictions laid down by law.

4. Even as recently as 28.91.2022, the Madhya Pradesh High Court in Guljar Khan v. The
Sate of Madhya Pradesh and ors43 the Court dealt with a case almost completely similar to
the instant case. In the case, The wife (corpus), via video conferencing, informed the Court

43
2022 LiveLaw (MP) 20

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that she is 19 years old and that she willingly married the Petitioner and converted to Islam.
She made a categorical statement that she was never forced into conversion and whatever
she has done was as per her own wishes. Counsel for the state argued that the marriage was
null and void pursuant to the provisions laid down by the Madhya Pradesh Freedom of
Religion Act, 2021. It was submitted that as per Section 3 of the Act, no person shall convert
for the purpose of marriage and any conversion in contravention to this provision shall be
deemed null and void. Therefore, a combined reading of Section 3 and Section 6 of the Act
renders the said marriage null and void.

5. Rejecting the contention put forth by the state, the Court observed- "Be that as it may, the
petitioner and corpus both are major. No moral policing can be allowed in such matters
where the two major persons are willing to stay together whether by way of marriage or in
a live-in relationship, when the party to that arrangement is doing it willingly and not forced
into it."

6. It added, "The corpus before this Court has clearly stated that she had married the petitioner
and wants to stay with him. The corpus is major person. Her age is not disputed by any of
the parties. The Constitution gives a right to every major citizen of this country to live her
or his life as per her or his own wishes. Under the circumstances, the objection raised by
the counsel for the State and her prayer to send the corpus to Nari Niketan is rejected.

7. The Court directed the state and police authorities to handover the corpus to the Petitioner
and to see that the couple reaches their residence safely. The police authorities were further
directed to ensure that even in future, the couple is not threatened by the parents of the
corpus.

8. It is my contention that section 6 is a restriction albeit, but is not reasonable and hence the
Court was wrong in declaring the marriage as void as the same would be in contravention
of the Rights bestowed by Article 21 of the Constitution.

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PRAYER

Wherefore, in the light of the issues raised, arguments advanced, and authorities cited. It is
most humbly prayed before this Hon’ble Court that it may be pleased to

1. Declare that sections 6, 7, 8 and 9 of The Uttarakhand Freedom of Religion

Act, 2018 void as it violates the basic structure of the Constitution.

2. Direct the state not to interfere with the right of the couple to live a married
life and to protect the same if necessary.

3. Declare the marriage between the parties as valid in the eyes of the law.

AND/OR, pass any order or orders that the court may deem fit in and proper in the
circumstances of the case and in the interest of Justice, Equity, and Good Conscience.

All of which is most humbly and respectfully submitted.

Date: 07.02.2022 N13

Place: Supreme Court of India (Counsel for Petitioner)

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