Professional Documents
Culture Documents
Muslim Law Moot-1
Muslim Law Moot-1
MR.SULTAN
(APPELLANT)
V.
MRS. SUFIA
(RESPONDENT)
1
MEMORIAL ON BEHALF OF THE APPELLANT
2
MADHUSUDAN
LAW
UNIVERSITY
COURT
SUBMITTED BY:
SECTION: B
3
ROLL NO: 74
4
TABLE OF CONTENTS
LIST OF ABBREVIATIONS-------------------------------------------------4
INDEX OF AUTHORITIES--------------------------------------------------5
BOOKS REFERRED----------------------------------------------------------5
STATUES REFERRED-------------------------------------------------------5
WEBISTES REFERRED-----------------------------------------------------5
TABLE OFCASES-------------------------------------------------------------6
STATEMENT OF JURISDICTION----------------------------------------7
STATEMENT OF FACTS----------------------------------------------------8
STATEMENT OF ISSUES---------------------------------------------------10
SUMMARY OF ARGUMENTS--------------------------------------------11
ARGUMENTS ADVANCED------------------------------------------------14
PRAYER------------------------------------------------------------------- 27
5
LIST OF ABBREVIATIONS
ADDL. Additional
ART Article
CONS Constitution
HC High Court
SC Supreme Court
VS Versus
6
INDEX OF AUTHORITIES
MULLA, THE CODE OF CIVIL PROCEDURE (LEXIX NEXIX, 19TH ED, 2017)
STATUTES REFERRED :
• THE CONSTITUTION OF INDIA, 1950.
LEGAL WEBSITES
www.indiankanoon.org
www.legalservicesindia.org
www.blogipleaders.com
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TABLE OF CASES
1) Rajendra Kumar Jain v. State (1980) 3 SCC 435: AIR 1980 SC 1510
2) Haryana state Industrial Corporation. v. cork Mfg. co. (2007) 8 SCC 359
6) Janshed Hormusji Wadia v. Board of Trustees, Port of Mumbai (2004) 3 SCC 214.
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STATEMENT OF JURISDICTION
This Hon’ble Supreme Court of Magicland has the jurisdiction to try, entertain and dispose of the
(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 and 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
BACKGROUND
ABOUT MAGICLAND
Magicland is a Sovereign, Secular, Democratic Republic, having its own written Constitution, which
guaranteed some Fundamental Rights to all its citizens. Personal laws applicable to the citizens
varied depending upon the religion to which one belongs. As far as Muslims are concerned, they
are governed by The Muslim Personal Law (Shariat) Application Act 1937. This law deals with
marriage , succession, inheritance and charities among Muslims.
Ms. Sadia and Mr. Sultan both Muslims and citizens of Magicland got married in 2003 as per the
customs of the Muslim personal law. Although they are leading a happy married life, they could
not procreate children, despite appropriate medical treatment. Except for this fact, Mr. Sultan and
his parents looked after Ms. Sadia very well.
However, on the advice of parents, Mr. Sultan married another lady by name Ms. Sufia in 2010,
with the consent of Ms. Sadia. Ms. Sufia was informed in advance that she would be Mr.
Sultan’s second wife. Ms. Sufia accepted Mr. Sultan as her husband and their marriage was
performed as per the customs of Muslim personal law.
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STATEMENT OF ISSUES
ISSUE 1
ISSUE 2
ISSUE 3
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SUMMARY OF ARGUMENTS
COURT IS MAINTENABLE:
It is humbly submitted to this Hon’ble Supreme Court that under Article 136 of The Constitution
of Magicland, any person, aggrieved by any order or decision of the High Court in State can
approach the Supreme Court through an appeal. In the instant case, the High Court has gravely
erred in not exercising its inherent jurisdiction as provided under the Civil Procedure Code. This
has led to a loss to the Appellants and a violation of the principles of Natural Justice and
Fundamental Rights . The Appellants humbly submit that all grounds for appeal are satisfied and
hence, this Hon’ble Court adjudicate the same. The Petitioner has the locus standi to approach
the Hon'ble Supreme Court. Furthermore, the jurisdiction Of Supreme Court can always be
invoked when a question Of law of general public importance arises. Also, in case at hand the
unconstitutional by the High Court are substantial question of law and of general public
FUNDAMENTAL RIGHTS.
It is most humbly submitted before the Court that personal laws can't be challenged on violation
of fundamental rights because the High Court has no power to introduce its own modern
concepts in applying personal laws of the parties and has to enforce the law as it is derived from
authoritative sources. It is further submitted that the court cannot examine the constitutional
validity of practices of marriage, maintenance or divorce in Muslim law since Part Ill of the
Constitution does not imbibe personal laws of the parties and the order of the High Court is not
valid . In this case, there has been violation of justice caused by the dismissal of the matter by the
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High Court. The Counsel for the Appellants humbly requests this Hon’ble Supreme Court to
correct the same and hear this matter. Here the High Court has been gravely wrong in not
It is most humbly submitted before this Hon'ble Court that the individual has sovereignty over
his/her body. He/she can surrender his/her autonomy willfully to another individual and their
intimacy in privacy is a matter of their choice. Such concept of identity is not only sacred but is
also in recognition Of the quint essential facet of humanity in a person's nature. So therefore
begetting of children by Mr. Sultan is a matter of his personal right. Cruelty is the ground for
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ARGUMENTS ADVANCED
It is most humbly submitted that the Appeal filed by the Appellant under ART.136 of the
Constitution of Magicland is maintenable before this Hon’ble Supreme Court. Article 133 of The
Constitution of Magicland says that any person, aggrieved by any order or decision of the High
Court in State can approach the Supreme Court through an appeal. In the instant case, the High
Court has gravely erred in not exercising its inherent jurisdiction as provided under the Civil
Procedure Code. The Constitution of India under Article 136 vests the Supreme Court of India
with a special power to grant special leave to appeal against any judgment or order or decree in
any matter or cause passed or made by any Court/tribunal in the territory of India. This is special
power bestowed upon the Supreme Court of India which is the Apex Court of the country to
grant leave to appeal against any judgment in case any substantial constitutional question of law
CIRCUMSTANCE:
SLP can be filed against any judgment or decree or order of any High Court /tribunal in
the territory of India.
SLP can be filed in case the High court refuses to grant the certificate of fitness for
appeal to Supreme Court of India.
The Constitution vest “discretionary power” in the Supreme Court. The Supreme Court of India
may in its discretion be able to grant special leave to appeal from any judgment or decree or
order in any matter or cause made or passed by any Court/tribunal in the territory of India. The
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Supreme Court of India may also refuse to grant the leave to appeal by exercising its discretion.
An aggrieved party from the judgment or decree of high court cannot claim special leave to
appeal as a right but it is privilege which the Supreme Court of India is vested with and this
leave to appeal can be granted by it only. An aggrieved party can approach the Apex Court under
Article 136 in case any constitutional or legal issue exists and which can be clarified by the
Supreme Court of India. This can be heard as civil or criminal appeal as the case may be. This is
“residual power” vested with the Supreme Court of India.
“The Constitutional Bench observed that the Supreme Court is vested “wide discretionary
power” under this article to interfere with the orders of the lower Courts and this power is
required to be exercised sparingly and only in exceptional cases where substantial and grave
injustice has been done and the case in question presents features of sufficient gravity to warrant
a review of the decision appealed against.”
In the case of Kunhayammed vs. State of Kerala [2000) 245 ITR 360 (SC)]
“The court observed that under Article 136 of the Constitution, the Supreme Court may reverse,
modify or affirm the judgment-decree or order appealed against while exercising its appellate
jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for
special leave to appeal. The doctrine of merger can therefore be applied to the former and not to
the latter.”
In the case of N. Suriyakala Vs. A. Mohan doss and Others (2007) 9 SCC 196
“The Supreme Court observed with regard to scope of Article 136 that Article 136 of the
Constitution is not a regular forum of appeal at all. It is a “residual” provision which enables
the Supreme Court to interfere with the judgment or order of any court or tribunal in India in its
discretion.”
In the case of Tirupati Balaji Developers Pvt. Ltd. Vs. State of Bihar [AIR 2004 SC 2351]
“This Court observed that Article 136 is an “extraordinary jurisdiction” vested by the
Constitution in the Supreme Court with implicit trust and faith, and extraordinary care and
caution has to be observed in the exercise of this jurisdiction. The court further observed that
Article 136 does not confer a right of appeal on a party but vests a vast discretion in the
Supreme Court meant to be exercised on the considerations of justice, call of duty and
eradicating injustice.”
In the case of Jamshed Wadia Vs. Board of Trustees, Port of Mumbai [AIR 2004 SC 1815]
“The court further said that this discretionary power is permitted to be invoked not in a routine
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fashion but in very exceptional circumstances as when a question of law of general public
importance arises or a decision sought to be impugned before the Supreme Court shocks the
conscience. It has to be exercised sparingly and only in furtherance of the cause of justice in the
Supreme Court in exceptional cases only when special circumstances are shown to exist.”
In this present case, the decision of the Hon’ble High Court in declaring polygamy
unconstitutional and the second marriage of the appellant void is completely erroneous and has
led to a loss to the Appellants and a violation of the principles of Natural Justice and
Fundamental Rights . The Appellants humbly submit that all grounds for appeal are
satisfied and hence, this Hon’ble Court adjudicate the same. The Petitioner has the locus standi
to approach the Hon'ble Supreme Court. Furthermore, the jurisdiction Of Supreme Court can
always be invoked when a question of law of general public importance arises. Also, in case at
hand the 'substantial' questions of law are involved. The questions of declaration of polygamy
as unconstitutional by the High Court are substantial question of law and of general public
importance. The Hon’ble High Court has made a grave erroneous judgment in declaring
polygamy as unconstitutional and has arbitrarily interfered in the Muslim Personal Law Hence
This case involves a matter of general public importance and it substantially affects the rights of
the parties as the order is erroneous and prejudicial to the interest of the Appellant. Thus it is
most humbly submitted that substantial and grave injustice has been done to the Appellant and
thus the case in question presents features of sufficient gravity to warrant a review of the
decision appealed against. Thus it is most humbly submitted that the Appellant has the Right to
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ISSUE 2: PERSONAL LAWS CAN NOT BE CHALLENGED ON
It is most humbly submitted before this Hon'ble Court that the institution of polygamy under
Muslim law doesn't violates the fundamental right because polygamy is a practice which is
permitted in Muslim Personal law and has been clearly mentioned in Quran. Art. 25 of
Constitution of Magicland provides for freedom of religion, which means every person has the
right to freely practice, profess and propagate his religion and religious practices or
performances of acts in pursuance of religious belief are as much a part of religion as faith or
belief in particular doctrines. So the Court does not have the right to interfere in their personal
religious practices.
The Holy Quran which is the word of God as revealed to Prophet Muhammad is the first and
supreme source of Islamic law. All the sources of Muslim Personal law have been approved and
endorsed by the Holy Quran and the practices of marriage, divorce and maintenance etc. are
based on such sources all of which flow from the Holy Quran itself and are not amenable to any
amendment, interpretation or alteration. Also the Shariat Act, 1937 in India protects the
application of Islamic laws in personal legal relationships. It clearly states that in matters of
personal disputes, the State shall not interfere and a religious authority would pass a declaration
based on his interpretations of the Quran and the Hadith. Thus, it is submitted that the issues
arising in the present matter can only be decided as per Muslim Personal Law, which derives its
sanctity from the Holy Quran and Hadith. It is submitted that principles of Marriage and
Polygamy are inter woven with religious and cultural rights Of a Muslims.
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In Githa Hariharan v. Reserve Bank Of India , it was held that Personals laws have become
an island within the Indian Constitution immune from any challenge on the ground that they
The Hon'ble Court in State of Bombay v. Narasu Appa Mali has observed that since the issues
related to personal law fall under Entry 5 in the concurrent List III, it is competent only for the
State or the Legislature to legislate upon them. The Court further observed that the framers of the
Constitution did not intend to include personal laws within the expression "laws in force" since
they did not want them to be challenged with respect to fundamental rights. Considering this
view, the constitutional validity of the practices of marriage, divorce and maintenance in Muslim
Article 13 does not provide for "personal laws" as under the words "a custom or usage" in
Article 13(3). A custom or usage is distinct or exceptional to personal law. The phrase "personal
That the intention was to leave these personal laws to the scrutiny of the legislature and not
the judiciary.
The Mohammedan Law is essentially founded on the Holy Quran and thus cannot fall within the
purview of "laws in force" in Article 13 and hence its validity cannot be tested as against
fundamental rights in part Ill of the Constitution. If personal laws are covered under Articles 13
and 372 of the Constitution, they will be void to the extent that they are in contravention of
Secularism means that the State should have no religion of its own, and no one could proclaim to
make the State house or endeavor to create a theoretic state. Each person whatever be his
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religion, must get assurance from the State that he has the protection of law freely to profess,
practice and propagate his religion and freedom of consciences. Secularism is a part of
fundamental law and an inalienable segment of the basic structure of the Constitution. The word
"Secular" exists only in the Preamble of the Constitution and it embodies the quintessence of
diverse facets of secularism and secularism is a goal as well as a process. The Appellant submits
that the principle of equality as between all religions is 'more than a passive attitude of religious
The word 'secular' highlights the fundamental rights guaranteed by Arts. 25 to 29. It was further
held that Secularism is absolute; the State may not treat religions differently on the ground that
public order requires it. It is submitted that the State has violated the norm of the much wanted
'secularism' embodied in the Preamble of the Constitution itself and declaration of polygamy as
It is further submitted that Religion is the matter of faith and conscience. Muslim Personal Law
being the very core of Islamic religious faith amalgamates in itself 'belief, 'practice' and
'propagation' as guaranteed under Art. 25 and 26 of the Constitution. The protection of Article 25
and 26 is not limited to matters of doctrine or belief, but it extends to the acts done in pursuance
of religion and therefore contained a guarantee for rituals and observances, ceremonies and
modes of worship which are integral parts of religion. What is essential part of a religion or what
its religious practice has to be judged in the light of its doctrine and such practices as are
regarded by the community as a part of its religion must also be included in them .The practices
in a religion are therefore peculiar to that particular religion only. Thus, a religion cannot be
adjudged as being unequal in rights to another religion. These practices have been protected
under Art. 25, 26 so that the exclusivity of each religion is protected. Therefore, the Appellant
humbly submits that the practices in the instant matter are protected by Articles 25 and 26 and
In Aga Mohamad Jaffer Bindanim v. Koolsoom Beebee & Ors the Court held that it would be
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wrong for the Court on a point of this kind to attempt to put their own construction on the Koran
in opposition to the express ruling of commentators of such great antiquity and high authority.
Moreover, new rules of law are not to be introduced because they seem to lawyers of the present
day to follow logically from ancient texts however authoritative, when the ancient doctors of the
Under Muslim Law polygamy is allowed. A man can marry four wives at a time. The
Constitution saving the essence of personal laws cannot make it ultravires, unless and until it
hampers the wives’ right to equality, non-discrimination on the basis of gender and right to life.
This present case does not falls within the above mentioned rights as the practice of polygamy
Also as per The Muslim Women ( Protection of Rights and Divorce) Act, 1986 which states
that if a man treats all his wife equally and respectfully, then he has the right to marry upto 4
wives. Otherwise he shall be held accountable. In this present case the Appellant has married the
Respondent as a second wife with her free consent in her sound mind. Since she has voluntarily
married him, knowing fully that the Appellant already has a first wife living. After marrying she
has no right to say that polygamy is unconstitutional. If she had any such objection to polygamy
she should have not have married the Appellant in the first place. Also polygamy is permitted in
Muslim personal law and is clearly mentioned in the Quran. So it is humbly submitted by the
Appellant that the High Court has no power to introduce its own modern concepts in
applying personal laws of the parties and has to enforce the law as it is derived from authoritative
sources. It is submitted that the court cannot examine the constitutional validity of practices of
marriage, maintenance or divorce in Muslim law since Part III of the Constitution does not
imbibe personal laws of the parties. Personal laws doesn't fall within the purview Of Art. 13.
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ISSUE 3: WHETHER NOT BEGETING OF CHILDREN BY MR. SULTHAN WOULD
It is most humbly submitted before this Hon'ble Court that begetting of children doesn't cause
mental cruelty because right to refuse to have sex is a fundamental right. The right to privacy is
an element of human dignity which is essential for a human being to fulfill the liberties and
freedoms which are the cornerstone of the Constitution. Intimacy, marriage, the liberty of
procreation, the choice of a family life are all individual choices and a matter of personal liberty
and no other person, not even the Court has the right to interfere in someone’s private life. The
Respondent has alleged that the Appelant has inflicted cruelty on her by not begetting children
with her. But in fact the Appellant has not inflicted any cruelty on her.
Under S.2(viii) of Dissolution of Muslim Marriage Act, 1939 cruelty includes the following:
(a) Her husband habitually assaults her or makes her life miserable by cruelty of conduct
even if such conduct does not amount to physical ill-treatment, or"
(b) associates with women of evil repute or leads an infamous life,
(c) attempts to force her to lead an immoral life, or (c) attempts to force her to lead an
immoral life,
(d) disposes of her property or prevents her exercising her legal rights over it
(e) obstructs her in the observance of her religious profession or practice
(f) if he has more wives than one, does not treat her equitably in accordance with the
injunctions of the Quran. "
Giving equal treatment to two or more wives does not mean only providing them equal food and
clothing but it also mean guaranteeing them equal love and affection .But in this instant case the
appellant has showed equal love and affection to both wives since it is impossible to treat
everybody equal in all sides. This was very well apprehended and the Quran lays down in
subsequent Ayat that: "You will not be able to deal equally with your wives however much you
wish to do so.” This means that it is not possible for a man to accord complete equality of
treatment to two or more wives under all circumstances and in all respects. The Law doesn't
demand that one should necessarily maintain absolute equality between the wives in respect of
“Supreme court held that the right to privacy depends on the exercise of autonomy and agency
by individuals. In situations where citizens are disabled from exercising these essential
attributes, Courts must step in to ensure that dignity is realised in the fullest sense. Familial
structures cannot be regarded as private spaces where constitutional rights are violated. To
grant immunity in situations when rights of individuals are in siege, is to obstruct the unfolding
vision of the Constitution.”
In the case of Navtej Singh Johar vs. Union of India, (AIR 2018 SC 4321)
“SC discussed the importance of sexual autonomy as a facet of individual liberty and
emphasised that the right to sexual privacy was a natural right, fundamental to liberty and
dignity.”
In the case of K.S. Puttaswamy vs. Union of India [(2017) 10 SCC 1)]
In the case of Shamsunnisa Begum vs G. Subban Basha [ AIR 1994 SC 274] it was held:
“The test of cruelty is based in universal and humanitarian standards by the husband who
causes bodily or mental pain and endangers the wife’s health and safety.”
The Appellant here is a man of dignity and respectful in nature. According to the facts he has
never discriminated between his two wives. He has equally loved and cared for both of his
wives. He in fact denied children form both of his wives. He does not comply any of the
ingredients which would constitute mental cruelty or satisfy any definition of cruelty so as to be
alleged to have committed the same. Also the Appellant’s financial condition is not that good
and he is already bearing the financial responsibility of both his wives. He is worried that if the
family is blessed with another child he can't afford enough resources and basic need to the child.
He has refused to have baby because of the welfare of the family. The sanctity of marriage, the
liberty of procreation, the choice of a family life and intimacy is a matter of choice and no one
can be forced to have children otherwise it would be violative of someone’s right to life and
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personal liberty. So therefore it is most humbly submitted that refusal of having a baby by Mr.
Sultan with the Respondent is a matter of his privacy and it doesn't amount to mental cruelty.
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PRAYER
The Appellant respectfully pray that this Hon’ble Supreme Court may graciously be pleased to
5. Pass any other or further orders as this Hon’ble Supreme Court may deem fit considering
the facts and circumstances of the present case and in the interest of justice, equity and
good conscience.
AND FOR THIS ACT OF KINDNESS, THE APPELLANT AS IN DUTY BOUND SHALL
EVER PRAY.
s/d___________________________
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