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2nd DEOMANGAL MEMORIAL NATIONAL MOOT COURT COMPETITION,2023

BEFORE THE SUPREME COURT OF ARYAVRAT

MRINAL& ORS
(PETITIONER)

Vs.

UNION OF ARYAVRAT
(RESPONDENT)

UNDER ARTICLE 32 OF THE CONSTITUION OF ARYAVRAT

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

JUSTICES OF SUPREME COURT OF ARYAVRAT

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TABLE OF CONTENT

CONTENT PAGE NO.

▪ Index of Authorities 3-4

▪ List of Abbreviations 5

▪ Statement of Jurisdiction 6

▪ Statement of Facts 7-9

▪ Issues Raised 10

▪ Summary of Arguments 11-12

▪ Arguments Advanced 13-20

▪ Prayer 21

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INDEX OF AUTHORITIES

LEGISLATIONS

• Art 24 of the Constitution

• Art 25 of the Constitution
• Art 26(b) of the Constitution
• Art 29(1) of the Constitution
• Art 32 of the Constitution
• Art 142 of the Constitution
• Art 226 of the Constitution
• The Special Marriage Act, 1954, Sec4(c)

STATUTES

• The Constitution of India.

• The Special Marriage Act, 1954
BOOKS

• The Constitution of India Bare Act

• M.P Jain, Indian Constitutional Law (2018)
• V.N. Shukla, Constitution of India (2022)
• J.N Pandey, Constitutional Law of India (2019)
• The Special Marriage Act, 1954 Bare Act

WEBSITES

• https://www.scconline.com/blog/post/2022/03/04/a-comprehensive-analysis-on-
judicial-legislation-in-india/
• https://blog.forumias.com/legalising-same-sex-marriages-in-india-and-associated-
challenges/#What_are_the_arguments_against_legalising_same-sex_marriages
• https://frontline.thehindu.com/the-nation/article-32-and-the-supreme-court-
contrasting-views-on-it-raises-legal-experts-hackles/article33213187.ece
• https://www.barandbench.com/apprentice-lawyer/discouraging-the-heart-and-soul-of-
the-constitution
• https://blog.ipleaders.in/arguments-implementation-uniform-civil-code/

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CASES

• Satish Chandra v. Registrar of Cooperative Societies, 1994 81 CompCas 482 SC

• Kanubhai Brahmbhatt v State of Gujarat [AIR 1987 SC 1159]
• S. R. Bommai v Union of India 1994 AIR 1918, 1994 SCC (3) 1
• The Commissioner, Hindu Religious Endowments, Madras vs. Shri Lakshmindar
Tirtha Swamiyar 1954 Air 282, 1954 Scr 1005
• TMA PAI Foundation Vs State Of Karnataka (2002) 8 SCC 481
• Ram Sahib Ram Jawaya Kapur v. State of Punjab AIR 1955 SC 549
• P. Ramachandra Rao v. State of Karnataka (2002) 4 SCC 578
• Registered Society v. Union of India. (1996) 4 SCC 33
• Raj Deo Sharma (1) v. State of Bihar 1998 7 SCC 507
• Raj Deo Sharma (2) v. State of Bihar (1999 ) 7 SCC 604

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LIST OF ABBREVIATIONS

ABBREVIATION FULL-FORM

• AIR All India Reporter.

• Art Article.
• Ors. Others.
• & And.
• Vs. Versus.
• UCC Uniform Civil Code.
• Para Paragraph.
• Hon’ble Honourable.
• S.C Supreme Court.
• H.C High Court.
• LGBTQIA Lesbian, Gay, Bisexual, Transgender, Queer, Intersex and Asexual.
• PIL Public Interest Litigation.

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STATEMENT OF JURISDICTION

The Petitioner humbly submits this memorial for the Public Interest Litigation filed before the
Supreme Court of Aryavrat under Article 32 of the constitution which states:

32. Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement
of the rights conferred by this Part is guaranteed

(2) The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari, whichever may be appropriate, for the enforcement of any of the rights
conferred by this Part

(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and
(2), Parliament may by law empower any other court to exercise within the local limits of
its jurisdiction all or any of the powers exercisable by the Supreme Court under clause
(2)

(4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution

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STATEMENT OF FACTS

1. Aryavart is a Sovereign Country in Asiana consisting of 28 States and 8 Union territories

and is by and large conservative country. The Population of Aryavart is around 140 crores.
Hinduism is the major religion and 70% of the population practice Hinduism, 20% practice
Islam, and other 10% practice other religions. Only the State of Kankan which was a
Portuguese colony has successfully implemented Uniform Civil Code in Aryavart.

2. Mrinal who is a Hindu trans-man is in a relationship with Akram who is a Muslim trans-
woman. They both are residents of Avanti State which doesn’t have Uniform Civil Code. They
both have been in a relationship since 2010 at a time when same-sex relationships were
considered taboo and unacceptable by the society. They were unable

to openly proclaim their relationship because of the social set up of the Country & State.

3. The couples waited for a very long to disclose their relationship in Public. In the year 2018,
the Hon’ble Supreme Court of Aryavart decriminalized homosexuality, which had infused a
sense of confidence among the LGBTQ+ community in the Country. Though the harassment
by the authorities had stopped due to decriminalization of homosexuality by the Hon’ble
Supreme Court yet the homosexual couples still faced

discrimination and stigma in the society.

4. There was a misconception in the society about the gender identity of the individuals.

The societal norm had only male and female stratum and entire government machinery ran
around recognizing only these genders. Though, in recent times there were identification of
transgender rights in some areas, there were still huge lacunae in recognizing their rights in
most of the field especially that of marriage.

5. The couples in the present case decided to open up regarding their relationship and to get
officially married. In admission to the fact that both of them belong to LGBTQ+ community
but also were of different religion. They respected each other’s faith and decided to get married
under their respective Customs. Their wedding was attended by their near and dear ones.

6. Though, friends and family supported their marriage, they were unable to get their marriage
officially registered as neither of them fell under the definition of ‘bride’ and ‘groom’ and
moreover they belonged to two different religions.

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7. In the meantime, Mrinal gets pregnant and gave birth to a healthy baby boy. Their problem
got complicated as they were unable to get birth certificate issued for their son as the same
required name of father and mother and in their case though Mirnal gave birth to the child,
Mirnal identified to be a male and therefore the father. Moreover, since their marriage itself
could not be registered, they were unable to get birth certificate for their child.

8. Their application was rejected by the authorities in the State of Avanti. Further, they also
tried to get their marriage registered, which was also rejected by the authorities in the State of
Avanti. They find that they were in a legal conundrum. Because of lack of a Uniform Civil
Code to govern the personal laws, they were stuck in a limbo. Hence, they decided to approach
the Hon’ble Supreme Court of Aryavart vide filing a writ petition under article 32 of the
constitution of Aryavtrat with plea of issuance of birth certificate to their child and recognition
of their marriage and consequently sought to implement a Uniform Civil Code which
recognizes both same sex marriage and inter- religious marriage and grants equal rights to all
irrespective of sex and religion.

9. Meanwhile, an NGO - Samridhi working for the welfare of Muslim women has been fighting
to implement Uniform Civil Code across the Country. They have been providing free legal aid
to Muslim women so as to assist them fight for their rights. Though there were various
legislations governing law of maintenance and other secular issues, it was seen that by and
large Muslim women were unable to access them. In order to provide access to justice and legal
rights, the NGO had filed a Public Interest Litigation seeking to implement Uniform Civil Code
throughout the Country of Aryavrat before the Hon’ble Supreme Court.

10. The same was pending consideration by the Hon’ble Supreme Court. The main ground
taken by the NGO was that the Muslim women are treated poorly and they do not have legal
weapons to claim maintenance, or file such claims before the Courts. Their rights which are
enjoyed by women of other community are being curtailed by their personal laws. Hence, the
NGO wants the implementation of Uniform Civil Code across the country of Aryavart wherein
women irrespective of religion will have equal rights. The All-Indus Muslim Personal Law
Board is opposing Implementation of Uniform Civil Code as they claim that it infringes their
personal right and the same is in violation of the rights granted under the Constitution. Hence,
the All-Indus Muslim Personal Law Board has filed Impleading Petition in both the Public
Interest Litigations filed by the NGO and the Trans-couple along with violation of secular
structure of the Aryavart.

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11. The Government of Aryavart whose ideology is based out of the majoritarian religion
supported to impose Uniform Civil Code and has also made it as their election agenda.
However, the Government is opposing a Uniform Code which recognizes LGBTQIA
community stating that such marriages are not recognized in any religions.

12. The Government of Aryavart is opposing the PIL filed by the Trans-couple on the ground
of maintainability as they have an alternative remedy.

13. The Trans-Couple are opposing the Impleading Petition filed by All Indus Muslim Personal
Law Board as they find them not to be a necessary party to the proceedings. These cases have
garnered huge media attention and have become topic of debate. Public opinion is being sought
by various media networks and there are different views and opinions supporting and opposing
both the sides. The Supreme Court recognizing the importance of the case had permitted live
telecast of the hearings and posted all applications together along with the question of
maintainability of PIL and necessity of impleading Indus Muslim Personal Law Board for
hearing.

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ISSUES RAISED

ISSUE-1

Whether the PIL is maintainable in the Supreme court of Aryavrat or not and is it
feasible to implement Uniform Civil Code in a Country like Aryavrat?

ISSUE-2

Whether UCC is violative of one’s Fundamental rights and other personal rights
guaranteed under the Constitution of Aryavart and is it the States’s interference in the
realm of the personal laws of the subjects?

ISSUE-3

Whether the non-issuance of the Birth Certificate for the child born from a LGBTQIA
couple is violation of the Child’s right by the state?

ISSUE-4

Whether the Constitutional power of Court to frame laws has led to the scenario where
Legislature have become the Executive wing of the Judiciary?

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SUMMARY OF ARGUMENTS

ISSUE-1

Whether the PIL is maintainable in the Supreme court of Aryavrat or not and is it
feasible to implement Uniform Civil Code in a Country like Aryavrat?

No, the PIL is not maintainable in the Supreme court of Aryavrat based on the Doctrine of
Exhaustion of Alternate Remedy whereby the Supreme Court can refuse to entertain a petition
in cases where an alternate and equally effective alternate remedy exists. Here the petitioners
have an alternative remedy of approaching the hon’ble High Court first.

No, it is not feasible to implement Uniform Civil Code in a Country like Aryavrat because it is
a diverse country consisting of different religious communities who are governed by their
personal laws. UCC infringes personal religious laws and harm the sentiments of the citizens.

ISSUE-2

Whether UCC is violative of one’s Fundamental rights and other personal rights
guaranteed under the Constitution of Aryavrat and is it the States’s interference in the
realm of the personal laws of the subjects?

Yes, the UCC is violative of one’s Fundamental rights and other personal rights guaranteed
under the Constitution of Aryavrat because it violates Article 25 ,26,29 of Constitution.

Yes, it is the States’s interference in the realm of the personal laws of the subjects because the
personal laws based on religious beliefs have existed for centuries and have been instrumental
in maintaining social harmony and peace in society.

ISSUE-3

Whether the non-issuance of the Birth Certificate for the child born from a LGBTQIA
couple is violation of the Child’s right by the state?

No, the non-issuance of the Birth Certificate for the child born from a LGBTQIA couple is not
a violation of the Child’s right by the state because the petitioners did not have a registered
marriage as it is not legally recognised. The recognition of marriages of the same sex are against
religious and cultural beliefs as all personal laws govern religious marriages with heterosexual
couples alone. Issuing birth certificate of a child born out of a Transgender relationship has a
lot of legal complications.
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ISSUE-4

Whether the Constitutional power of Court to frame laws has led to the scenario where
Legislature have become the Executive wing of the Judiciary?

Yes, the Constitutional power of Court to frame laws has led to the scenario where Legislature
have become the Executive wing of the Judiciary, and legislature is on the verge of losing its
importance as law making body of the country.

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ARGUMENTS ADVANCED

1. No, the PIL is not maintainable in the Supreme court of Aryavrat.

No, it is not feasible to implement Uniform Civil Code in a Country like Aryavrat.

1. No, the PIL is not maintainable in the Supreme court of Aryavrat based on the Doctrine
of Exhaustion of Alternate Remedy whereby the Supreme Court can refuse to entertain
a petition in cases where an alternate and equally effective alternate remedy exists. Here
the petitioners have an alternative remedy of approaching the hon’ble High Court first.
The doctrine is bolstered on the principle that a litigant must approach the lowest forum
that in the hierarchy of the judicial structure so as to ensure that exquisite judicial
resources at the higher level and the lower level as well as at the specialized level are
not squandered in the wake of a forum shopping exercise.
2. Application under Article 32

The Hon’ble Supreme Court has, on many occasions, refused to take up matters for which
an alternative remedy was available. In Satish Chandra v. Registrar of Cooperative
Societies1, the remedy under Article 226 was specifically stated as the alternative remedy,
and the petition under Article 32 was consequently dismissed. Where the vires of the statute
is capable of being examined by the High Court, the Supreme Court has usually redirected
the petitioner to pursue that course of action, before petitioning under Article 32. The Court
has considered the meaning of the words “appropriate proceedings” in Article 32 as its
discretion to approach its decision.

3. Jurisdiction of High Court under article 226.

Under Article 226, the High court has a wider scope than article 32 .
In Kanubhai Brahmbhatt v State of Gujarat [AIR 1987 SC 1159]2 a division bench
of the Supreme Court observed that a petitioner complaining of infraction of his
Fundamental Right should approach the High Court first rather than the Supreme Court
in the first instance, the reason for such an observation as given was that there was a
huge backlog of cases pending before the Supreme Court.
Thus, the PIL is not maintainable in the Supreme Court of Aryavrat.

1 Satish Chandra v. Registrar of Cooperative Societies, 1994 81 CompCas 482 SC

2 Kanubhai Brahmbhatt v State of Gujarat [AIR 1987 SC 1159]

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4. No, it is not feasible to implement Uniform Civil Code in a Country like Aryavrat because
The Population of Aryavart is around 140 crores. Hinduism is the major religion and 70%
of the population practice Hinduism, 20% practice Islam, and other 10% practice other
religions3. It is a diverse country consisting of different religious communities who are
governed by their personal laws. UCC infringes personal religious laws and harm the
sentiments of the citizens. UCC would violate personal laws gravely and would thus result in
irreversible damage to the religion and the laws therein. The very idea of assimilating all the
personal laws into a uniform code will infringe the constituents of personal laws of most of the
minority religion.

5. A Secular country consisting people of diverse culture and traditions takes pride in its
integrity within diversity. For maintaining diversity, we need to respect every minority
community’s personal choice and law. The government must respect the emotions of the
minority population and thus decide on whether to infringe upon the personal law or not.

Ensuring uniformity in the personal laws goes against the essence of multi-culturalism
(Salad Bowl Theory).

In the landmark judgment of S. R. Bommai v Union of India4 the honourable Supreme

Court explained the concept of Secularism as, “The Constitution has chosen secularism as
its vehicle to establish an egalitarian social order. Secularism is part of the fundamental law
and basic structure of the Indian political system.”

6. Article 44 of the Constitution of India talks about the implementation of a Uniform

Civil Code throughout the territory of India. Implementing Uniform Civil Code would
mean that all the personal religious laws shall be kept at bay and a uniform personal law
governing areas of marriage, divorce, inheritance etc. shall be formulated.

Article 44 comes under the ambit of Directive Principles of States Policies which are not
enforceable in Court, they are the guidelines for the State but are not legally enforceable,
the state must have the capacity to follow them. In Aryavrat Hinduism is the major
religion and 70% of the population practice Hinduism, 20% practice Islam, and other
10% practice other religions.5

3. Fact Para 1

4. S. R. Bommai v Union of India, 1994 AIR 1918, 1994 SCC (3) 1

5. Fact Para1
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There are a lot of Legal Hurdles and Challenges regarding the implementation of UCC in a
diverse country such as Aryavrat, the main legal challenge to UCC is the complexity and
difficulty involved in drafting, enacting and implementing it. The task of framing a UCC that
would be acceptable to all sections of the society is not easy. It would require extensive
consultation, deliberation and consensus-building among various stakeholders such as religious
leaders, legal experts, social activists, women's groups etc. It would also require careful
consideration of the existing personal laws, their historical background, their socio-cultural
relevance, their compatibility with human rights norms etc. At present a country like Aryavrat
is not prepared for this framework.

Thus, being diverse in nature it is not feasible to implement UCC as it will curb the personal
rights of every community and will hurt their sentiments and brings in a lot of legal
challenges for the Country.

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2. Yes, the UCC is violative of one’s Fundamental rights and other personal rights
guaranteed under the Constitution of Aryavrat

Yes, it is the States’s interference in the realm of the personal laws of the subjects

7.The UCC is violative of one’s Fundamental rights and other personal rights guaranteed
under the Constitution of Aryavrat because of the following reasons

(i) Article 25 of the constitution states that “Freedom of conscience and free profession,
practice and propagation of religion”. The Uniform Civil Code (UCC) is a set of laws
that would apply to all citizens irrespective of their religion in matters including marriage,
divorce, inheritance, and adoption. This hinders the fundamental right of the citizen to
freely practice, propagate and profess any religion.

(ii) Article 26 of the Constitution states that “Freedom to manage religious affairs,”,
clause (b) of the Articles talks about “Freedom to manage Religious Affairs”

(iii) Article 29 of the Constitution states that “Protection of minorities”, clause (1) talks
about,” Any section of the citizens residing in the territory of India or any part thereof
having a distinct language, script or culture of its own shall have the right to conserve
the same.” Article 29 defines the right to conserve distinctive culture.

In 1954, Shirur Mutt Case6 - Supreme Court gave the concept of 'Doctrine of Essential
religious practices' whereby certain religious practices which are essential/integral to the
core philosophy or existence of religion cannot be taken away by the state and under any
circumstance State/Judiciary would not be allowed to intervene. So, Essential Religious
Practices of a Religion consists of -

• Mode of worship
• Certain Ceremonies
• Certain Customs/Rituals

Provided they are integral for the very existence of the religion.

6. The Commissioner, Hindu Religious Endowments, Madras vs. Shri Lakshmindar Tirtha Swamiyar
1954 Air 282, 1954 Scr 1005

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Thus, UCC is violative of one’s Fundamental rights and other personal rights guaranteed
under the Constitution of Aryavrat as the term “Secular state” assures the citizens that the
State shall not give shelter to any particular religion and every citizen can live life freely
according to his or her religion but UCC does interfere with the religion.

The Supreme Court in TMA Pai Foundation Case7 reiterated that the essence of
secularism in India is recognition and preservation of diversity. Hence, the idea of UCC
might not be in consonance with Indian Secularism.

In 2018, a report by the Law Commission of India stated that the Uniform Civil Code
is “neither necessary nor desirable at this stage” in the country. The Commission said
secularism cannot contradict the plurality prevalent in the country.

8. Personal laws in Aryavrat are governed by separate laws, based on religion. Hindu law,
Muslim law, Christian law, and Parsi law govern personal matters such as marriage,
divorce, inheritance, and adoption for their respective communities. These laws are deeply
rooted in religious and cultural traditions, and any attempt to reform them is seen as an
attack on religious identity. Thus, UCC is the States’s interference in the realm of the
personal laws of the subjects.

7. TMA PAI Foundation Vs State Of Karnataka (2002) 8 SCC 48

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3.No, the non-issuance of the Birth Certificate for the child born from a LGBTQIA couple
is not a violation of the Child’s right by the state

9.It is humbly submitted before the Hon’ble Supreme Court that the non-issuance of the Birth
Certificate for the child born from a LGBTQIA couple is not a violation of the Child’s right by
the state due to the following reasons:

(i) The Petitioners were unable to get birth certificate issued for their son as the
same required name of father and mother and in their case though Mirnal gave
birth to the child, Mirnal identified to be a male and therefore the father.
Moreover, since their marriage itself could not be registered, they were unable
to get birth certificate for their child.8 The essential documents required for the
issuance of birth certificate are as follows:
• Identity proof of the parents for verification
• Parent’s marriage certificate
• Letter from the hospital – Proof of birth of the child issued by the hospital
where the child is born
• Parents’ birth certificate or SSC marks sheet
Lack of essential documents resulted to the non- issuance of birth certificate.
(ii) Reasons for lack of Marriage certificate and Legal Hurdles:
The Petitioners were unable to get their marriage officially registered as neither
of them fell under the definition of ‘bride’ and ‘groom’ and moreover they
belonged to two different religions.9
As they belonged to different religion and were trying to get married, their marriage
would fallen under the ambit of The Special Marriage Act,1954, Section 4(c) of
the Act recognises marriage only between a ‘male’ and a ‘female’ and does not
include any other gender.
The current legal framework in Aryavrat does not recognise same-sex marriages,
and amending several existing laws could be a lengthy and difficult process.

8. Fact Para 7
9. Fact Para 6
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(iii) Issuance of birth certificate to a child born out of Transgender relations will raise
confusion as to parentage of the child:
As Mirnal gave birth to the child, Mirnal identified to be a male and therefore
the father. 10There is no certainty as to parentage of the child, Females are blessed
with the power of giving Birth but in this scenario, Mrinal identified to be a male
and is the mother and Akram who was born as a man and was the father now
identified to be a woman. This leads to several confusions regarding the parentage
of the child.
Thus, the non-issuance of Birth Certificate took place due to several ambiguities,
and lack of appropriate document, it did not violate the child rights.

10. Fact Para 7

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4. Yes, the Constitutional power of Court to frame laws has led to the scenario where
Legislature have become the Executive wing of the Judiciary.

10. It is humbly submitted before the Hon’ble Supreme Court that the Constitutional power of
Court to frame laws has led to the scenario where Legislature have become the Executive wing
of the Judiciary, and legislature is on the verge of losing its importance as law making body of
the country.

11.Constitution does not strictly accept the concept of separation of power, as laid down in
Ram Sahib Ram Jawaya Kapur v. State of Punjab11. It has not indeed recognised the
doctrine of separation of powers in its absolute rigidity but the functions of the different parts
or branches of the Government have been sufficiently differentiated. Hence, the judiciary to
indulge in lawmaking is to overstep its limitations. Moreover, allowing an unelected body
like the judiciary to share the burden of lawmaking is extraneous to that of the people’s
will and raise question on Democracy of the Country.

12. Judicial legislation for the first time was checked by a 7-Judge Bench decision in P.
Ramachandra Rao v. State of Karnataka12, wherein the Court held that giving directions of
a legislative nature is not a legitimate judicial function. The Court was considering the
question of whether the bar of limitation for criminal trials set by smaller Benches of the
Supreme Court in “Common Cause”, A Registered Society v. Union of India13, Raj Deo
Sharma (1) v. State of Bihar14 and Raj Deo Sharma (2) v. State of Bihar15 were valid. The
Supreme Court held that the directions given in the aforesaid decisions were invalid as they
amounted to directions of legislative nature which only the legislature could give.

13. An order “to do complete justice” under Article 142 which states “Enforcement of decrees
and orders of Supreme Court and orders as discovery, etc”, cannot be “inconsistent with
the substantive provisions of the relevant statutory laws.

Thus, the Constitutional power of Court to frame laws has led to the scenario where
it creates a sense of uncertainty and unwanted strife between the organs of the State.
11 Ram Sahib Ram Jawaya Kapur v. State of Punjab AIR 1955 SC 549
12 P. Ramachandra Rao v. State of Karnataka (2002) 4 SCC 578
13 Registered Society v. Union of India. (1996) 4 SCC 33
14 Raj Deo Sharma (1) v. State of Bihar 1998 7 SCC 507
15Raj Deo Sharma (2) v. State of Bihar (1999 ) 7 SCC 604
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PRAYER

WHEREFORE, in the lights of the facts used, issues raised, arguments advanced and
authorities cited, it is most humbly and respectfully prayed that this Hon'ble Court may be
pleased to:

1. To hold the PIL not maintainable in the Hon’ble Supreme Court of Aryavrat.
2. To respect the personal laws of the citizens as the strength of the country lies in its
diversity.
3. To validate the reasons for non-issuance of Birth Certificate for a child born from
LGBTQIA community.
4. To protect the sanctity of religious and cultural beliefs regarding the institution of
marriage in the society.

The Hon’ble Court may also be please to pass any other order, which this Hon'ble Court may
deem fit in the light of Justice, Equity and Good Conscience for which the Respondent shall
forever PRAY.

Counsel on Behalf of the Respondent.

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