BILS 5th National Moot Court Competition Memorial

BILS 5TH NATIONAL MOOT COURT COMPETITION, 2018
TEAM CODE : LF 03
BILS 5th NATIONAL MOOT COURT COMPETITION, 2018
23rd – 25th MARCH, 2018
BEFORE THE HON’BLE SUPREME COURT OF INDIA
IN THE MATTER OF
SCF & MS. NASRIN AL-FAREED. …PETITIONERS
v.
UNION OF INDIA & DR. AARIF HAKIM …RESPONDENTS
SLP NO. ____/2018
ON SUBMISSION TO THE HON’BLE SUPREME COURT OF INDIA
UNDER ART. 136 OF THE CONSTITUTION OF INDIA
WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENTS
COUNSEL APPEARING ON BEHALF OF THE RESPONDENTS
MEMORIAL FOR THE RESPONDENTS

TABLE OF CONTENTS
LIST OF ABBREVIATIONS………………………………………….………………….i
INDEX OF AUTHORITIES……………………………………….….……….…………ii
Books………………………………………………………………….……….……….…...ii
Journals……………………………………………………………….…….………………iv
Statutes / Rules……………………………………………………………………………..iv
Legal Database……………………………………………………………………………...v
Cases………………………………………………………………………………………..v
STATEMENT OF JURISDICTION……………………………………………….…..viii
STATEMENT OF FACTS…………………………………………………………….…ix
STATEMENT OF ISSUES…………………………………………...…….……………xi
SUMMARY OF ARGUMENTS……………………………….……………………….xii
ARGUMENTS ADVANCED…………………………………………………………….1
[1.] THE DISMISSAL OF THE PIL BY THE HIGH COURT WAS RIGHT……………..1
[1.1] SCF has no locus standi in the instant PIL………………………………………….1
[1.2] There is no violation of fundamental rights…………………………………………2
[1.3] The Hon’ble Court cannot intervene in matters of personal law………………….3
[1.4] The PIL is veiled to present the personal dispute…………………………………..3

[2.] SECTION 494 OF THE INDIAN PENAL CODE, 1860 READ WITH SECTION 2 OF
THE MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT, 1937 IS NOT
VIOLATIVE OF ART. 14 OF THE CONSTITUTION……………………….…………….4
[2.1] Personal laws cannot be challenged as being violative of fundamental rights…...4
[2.1.1] Personal laws cannot be challenged as being violative of Part III of the
Constitution…………………………………………………………………………...4
[2.2] §494 of IPC read with §2 of the Muslim Personal Law (Shariat) Application Act,
1937 is not discriminatory on the grounds of religion………………………….………..5
[2.3] Art. 14 of the Indian Constitution is not violated………………………..…………5
[2.3.1] Right to equality does not require absolute equality……………….………...6
[2.3.2] Classification is based on intelligible differentia………………….…………7
[2.3.3] There is rational nexus between the classification and object sought to be
achieved…………………………………………………………….…………………7
[2.4] Uniform civil code under Art. 44 is not enforceable…………….…………………7
[3.] §494 OF THE INDIAN PENAL CODE, 1860 READ WITH §2 OF THE MUSLIM
PERSONAL LAW (SHARIAT) APPLICATION ACT, 1937 IS NOT VIOLATIVE OF
ART. 21 OF CONSTITUTION OF INDIA…………………………………………………..8
[3.1] § 494 of IPC does not apply to Mohammedan males………………………………8
[3.2] There is no prima facie violation of Art. 21 of the constitution…………………...9
[3.3] §2 of Muslim Personal law (Shariat) Application Act is not violative of Art. 21 of
the constitution……………………………………………………………………………..9
[3.3.1] §2 of the Act does not provide for rights and obligations….………………..10
[3.3.2] Shariat Act has not been transformed into a statute………………………..10

[3.3.3] Parameters of challenge applicable to a statute is different from that of a

personal law………………………………………………………………………….11
[4.] POLYGAMY DOES NOT VIOLATE THE PARAMETERS EXPRESSED IN ART. 25

OF THE INDIAN CONSTITUTION………………………………………………………...11
[4.1] Polygamy does not violate the constituents of Art. 25 of the Constitution…........11
[4.2] Parties had married as per the customary Islamic law…………………………...13
[4.3] Personal laws fall outside the ambit of laws under Art. 13………………….........14
[4.3.1] Personal laws are not included in the expression ‘laws in force’…………..14
[4.3.2] Customs are not personal laws; pertinence to expressio unius est exclusio
alterius………………………………………………………………………………..15
PRAYER………………………………………………………………………………….xiv

Page |i
LIST OF ABBREVIATIONS
ABBREVIATION FULL FORM

& And
¶ Paragraph
§ Section
AC Appeal Cases
AIR All India Reporter
Anr. Another
Art. Art.
Co. Company
Cri LJ Criminal Law Journal
HC High Court
Hon‟ble Honorable
IPC Indian Penal Code
LJ Law Journal
LR Law Report
Ltd. Limited
Ors Others
Regd. Registered
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
SLP Special Leave Petition
v. Versus
Vol. Volume

P a g e | ii
INDEX OF AUTHORITIES
BOOKS
A.M Bhattacharjee, Muslim Law and the Constitution,

[1] Relied on
(2nd ed., Eastern Book House, 1994).
Abdul Rahim, Muhammadan Jurisprudence, 73 (Luzac
[2] Mentioned, p.7
And Company, 2004).
Agnes, Chandra, Basu, Woman and Law in India
[3] Relied on
(Oxford University Press, 1994).
D. D Basu, Shorter Constitution of India (13thed.,
[4] Mentioned, p. 11
Wadhwa and Company, Nagpur 2006).
Dr. G.B Reddy, Women and the Law (Gogia Law
[5] Relied on
Agency, Hyderabad, 2012).
Dr. Kauser Edappagath, Divorce and Gender Equity in
[6] Mentioned, p. 7
Muslim Personal law in India (Lexis Nexis, 2014).
Dr. S.R Myneni, Women and Law, (2nd ed., Asia Law
[7] Relied on
House).
Hingorani, Aman, Public Interest Litigation (Indian Law
[8] Mentioned, p. 1
Institute, 2011).
J.N Pandey, Constitutional Law of India (51st ed.,
[9] Mentioned, p. 1
Central law agency, Allahabad).
John Mounteney Lely & John Jane Smith, Wharton‟s
[10] Relied on
Law Lexicon (15th ed., 2009).
K D Gaur, Textbook on Indian Penal Code (5th ed.
[11] Relied on
Universal Law Publishing).
M.P Jain, Indian Constitutional Law 1246 (7th ed., Lexis
Nexis).
Mirza Tazir Ahmad, Islam‟s Response to Contemporary
[13] Relied on
Issues (Islam International Publications Ltd., 1997).
[14] Mulla, Mohammedan Law 15 (2nd ed., Dwivedi Law Relied on

P a g e | iii
Agency, 2007).
Prof.K.C Jena, Uniform Civil Code, (2nd ed., Kalinga

Law House).
Ratanlal Ranchhoddas & Dhirajlal Keshavlal Thakore,
Indian Penal Code (33rd ed. 2011).
Ruma Pal, A.M Bhattacharjee Matrimonial Laws and the
[17] Relied on
Constitution, (2nd ed., Eastern Law House, 1996).
Tahir Mahmood & Saif Mahmood, Muslim law in India
[18] and Abroad (2nd ed., Universal Law Publication Co., Mentioned, p. 4
2016).
Uday Raj Rai, Fundamental Rights and their
Enforcement (PHI Learning Pvt. Ltd., 2011).
V. N Shukla, Constitution of India (12th ed. Eastern Book
Company, 2016).
V.P Bhartiya, Syed Khalid Rashid‟s Muslim Law (5th
[21] Relied on
ed., Eastern Book Company).
Vol.1, D.J. De, The Constitution of India (Asia Law
House Publication, Hyderabad, 2002).
Vol.1, H.M Seervai, Constitutional Law of India (3rd ed.,
[23] Relied on
Universal book traders).
Vol.2, D.D. Basu, Commentary on the Constitution of
India (8th ed., 2012).
Vol.2, Dr. Hari Singh Gour, Commentaries on the Indian
[25] Relied on
Penal Code (11th ed., Law publishers Pvt Ltd.).
Vol.3, D.D. Basu, Commentary on the Constitution of
India (8th ed., 2012).
[27] Wharton‟s Law Lexicon, 1019 (15th Ed., 2009). Mentioned, p. 1

P a g e | iv
JOURNALS
Javaid Rehman, The Sharia, Islamic Family Laws and

International Human Rights Law: Examining the Theory
[1] and Practice of Polygamy and Talaq, International Mentioned, p. 11

Journal of Law, Policy and the Family (Vol. 21, Issue 1,
2007).
M.P. Singh, Special Editorial Note On Uniform Civil
[2] Code, Legal Pluralism and the Constitution of India, Mentioned, p. 8

Journal of Indian law and Society (Vol.5).
Mr. Ashok Wadje, Judicial Review of Personal Laws vis-
a-vis Constitutional Validity of Personal Laws, South
[3] Relied on
Asian Journal of Multidisciplinary Studies (SAJMS)
ISSN: 2349-7858 (Vol.2).
Prabhat Shukla, An Approach to Indian Constitution,
[4] Scholedge International Journal of Business Policy & Mentioned, p. 11

Governance (Vol. 1, Issue1, 2014).
Tahir Mahmood, Religion, Law, and Judiciary in Modern
[5] Relied on
India, Brigham Young University Law Review (2006).
STATUTES / RULES
[1] Constitution of India, 1950- Art.13

[2] Constitution of India, 1950- Art. 15
[7] Constitution of India, 1950- Art 226
[7] Indian Penal Code, 1860- § 494
[8] Muslim Personal Law(Shariat) Application Act, 1937- § 2

Page |v
LEGAL DATABASE
[1] www.manupatra.com
[2] www.indiakanoon.com
[3] www.jstor.com
[4] www.scconline.com
CASES
Sl. No. Cases Page No.

[1] A.R. Antulay v. R.S. Nayak & Anr. 1 AIR 1531(1988). 9
[2] A.S.Parveen Akthar v. The Union Of India, 3 SCC 573(Mad: 2002). 10
[3] Ahmedabad Women Action Group v. Union of India, 3 SCC 573(1997). 3, 5, 8, 9, 12
[4] Badu Mia v. Badrannessa, 2 AIR 511(Cal: 1919). 9
[5] BALCO Union v. Union of India & Ors., 1 AIR 350(SC: 2002) 2
[6] Bidhanagar Welfare Assn. v. Central Valuation Board, 1AIR 2276(SC: 6
2007).
[7] Bombay Dyeing & Mfg. Co. Ltd. v. Bombay Envt. Action Group, 1 AIR 6
1489(SC: 2006).
[8] C. Mohammed Yunus v. Syed Unissa and Ors., 1 AIR 808(SC: 1961). 15
[9] Chiranjit Lal Chowdhary v. Union of India, 1 AIR 41(SC: 1951). 2, 6
[10] Commr., Hindu Religious Endowments v. Sri Shirur Mutt, 1 AIR 282(SC: 12, 13
1954).
[11] Danial Latifi & Anr v. Union Of India, 7 SCC 740, 746(2001) 9
[12] Devadasan v. Union of India,1 AIR 179(SC: 1964). 5
[13] Dilbar Habib Siddiqui v. State of Uttar Pradesh. & Ors.,69 ACC 14
997(2010).
[14] Dr. D.C. Wadhwa & Ors. v. State of Bihar & Ors., 1AIR 579(SC: 1987). 2, 3
[15] Garg RK v. Union of India, 1 AIR 404(SC: 1981). 7
[16] Guruvayur Devaswom Managing Committee v. C.K. Rajan, & Ors., 1 2

P a g e | vi
AIR 561(SC: 2004)

[17] Haisnam Baruniton Singh v. Thokchom Ningol Haisnam Ongbi, Cri LJ 5
493(1959).
[18] In Re, Special Courts Bill, 1 SCC 380(1979). 6
[19] Jafar Abbas Rasool Mohammad Merchant v. State of Gujarat 8
[20] Javed v. State of Haryana, 1 AIR 269 (SC: 2003). 7
[21] John Vallamattom & Anr. v. Union of India, 6 SCC 611(2003). 13
[22] Kartar Singh v State of Punjab, 3 SCC 569 (1994). 3
[23] Kathi Raning Rawat v. State of Saurashtra, 1 AIR 123(SC: 1952). 5
[24] Kedar Nath Bajoria v. State of West Bengal, 1 AIR 404(SC: 1953). 6
[25] Keshavan Madhava Menon v. State of Bombay, Cri LJ 680(1951). 5
[26] Khyerbari Tea Co. v. State of Assam 1 AIR 1964 SC 925. 3
[27] Krishna Singh v. Mathura Ahir, 1 AIR 707(SC: 1980). 12
[28] Lily Thomas and Ors. v. Union of India 7 SCC 653(2013). 8, 14
[29] M/S Swastik Gases P.Ltd v. Indian Oil Corp.Ltd, 9 SCC 32(2013). 15
[30] Madhu Kishwar v. State of Bihar, 5 SCC 125(1996). 12
[31] Mohd. Hanif Qureshi & Ors. v. State of Bihar,1 AIR 731(SC: 1958). 6
N. Adithyan v. Travancore Devasom Board, Seshammal v. State of Tamil
[32] 13
Nadu, 2 SCC 815 (1972).
[33] Nakara v. Union of India, 1 AIR 130(SC: 1983). 4
[34] Nandjee v. P.G Medical Students, 3 SCC 400(1993). 4
National Council for Teacher Education v. Shri Shyam Shiksha
[35] 7
Prashikshan Sansthan [Civil Appeal No. 1125-1128 of 2011].
[36] P. B. Roy v. Union of India, 1 AIR 908(SC: 1972). 7
[37] Pathumma v. State of Kerala, 1 AIR 771(SC: 1979). 6
[38] P. N. Kaushal Etc. v. Union of India, 1 AIR 1457(SC: 1978). 7
[39] Poonam v. Sumit Tanwar, 1 AIR 1384 (SC: 2010). 1
[40] Radharani Mahadev Kolambe v. State of Karnataka, (Kar: 2009). 5
[41] Ratilal Panachand Gandhi v. State of Bombay, 1 AIR 388(SC: 1954). 12, 13
[42] S.P. Gupta v. Union of India, 1 AIR 149(SC: 1982). 4

P a g e | vii
[43] Sachidanand Pandey v. State of West Bengal, 1 AIR 1109(SC: 1987). 1, 2, 3, 10

[44] Saidali K.H. v. V.Saleena, 4KLT 136(SC: 2008). 14
Sardar Syedna Taher Saifuddin Saheb v. The State Of Bombay, 1 AIR
[45] 13
853(1962).
[46] Shabnam Hashmi v. Union of India , 4 SCC 1(2014). 13
[47] Shayara Bano v. Union Of India & Ors. 4 JKLT 1(SC: 2017). 13, 14
Sri Adi Visheshwara of Kashi Vishwanath Temple,Varanasi & Ors. Etc.
[48] 13
v. State of UP & Ors. 4 SCC 6064(1997).
[49] State of Bombay v. Nasaru Appa Mali, 1 AIR 84(Bom: 1962). 5, 13, 15
[50] State of Haryana v. Jai Singh, 1 AIR 1696(SC: 2003). 7
[51] Surajmal Mohta v. Vishwanath Sastry, 1 AIR 545(1955) 9
[52] Thiru Muruga Finance v. State of Tamil Nadu, 1 AIR 137(Mad: 2000). 7
[53] Tilkayat Sri Govindlalji v. State of Rajasthan, 1 AIR 1638(SC: 1963). 12
[54] Union of India v. BC Nawn, 84 ITR 526(1972). 15
Venkateshwara Theatre v. State of Andhra Pradesh and Ors., 3 SCR
[55] 6
616(1993).
[56] Venugopal K. v. Union of India, 4 SCC 3(Ker: 2001). 5
Villianur Iyarkkkai Padukappu Maiyam v. Union of India, 7 SCC 561
[57] 2
(2009).

P a g e | viii
STATEMENT OF JURISDICTION
It is most humbly submitted that the Respondents have filed this memorandum in response to the
Special leave petition by the appellant filed before this Hon‟ble Supreme Court of India under
Art. 136 of the Constitution of India, 1950. The respondents most humbly submit before the
jurisdiction of this court and accept that it has the power and authority to preside over the present
case.
Art. 136 states that:
“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”

P a g e | ix
STATEMENT OF FACTS
The present case arises out of a Special Leave Petition filed by Society for Compassionate
Feminism (SCF) and Nasrin against the order of High Court of Dhruvasthan before the Supreme
Court of India.
[1] BACKGROUND
¶1.1 Dhruvasthan, a southern state in the Republic of India has one of the best living standards in
terms of healthcare, education, and amenities available to the public. It is well known for its
cultural and culinary heritage.
¶1.2 The population consists of 48% of Hindus, 38% of Muslims and 14% of other communities
such as Christians, Parsis and other religious communities.
[2] MATERIAL FACTS OF THE CASE
¶2.1 Nasrin Al-Fareed, 24 years old Sunni Muslim woman was married to Dr. Aarif Hakeem, 29
years old Sunni Muslim as per the customary Islamic law on 27th December 2012. Both of them
were residents of Dhruvasthan. She completed her M.Sc. in Chemistry and was working in Isa
University as an Assistant Professor and Dr. Aarif Hakeem was an agricultural scientist working
for a multi-national corporation.
¶2.2 Ms. Jane Dover was a 22 year old Christian woman who was assigned to Dr. Aarif
Hakeem‟s team from December 2016. Both of them started to develop feelings for each other
and their relation grew from colleagues to lovers. On 22nd August 2017, Dr. Aarif proposed to
Jane as he wanted to marry her. Jane told him to get separated from Nasrin.
¶2.3 To find a ground of talaq from Nasrin, Aarif asked her to quit her job and stay at home to
look after his parents. Initially she resisted, but eventually she agreed and quit her job in October
2017. Seeing no other way, Aarif somehow convinced Jane to marry him on 24th November
2017 as per Muslim customary law.
¶2.4 Nasrin, when got to know about the second marriage, got angry and confronted Aarif. But
he told her that he is marrying as per the personal law and there is nothing wrong in it.

Page |x
¶2.5 Nasrin went back to her parents‟ home on 1st of December 2017 and went to file an FIR
against Aarif under §494 of Indian Penal Code, 1860. But the police refused to file an FIR
against Aarif.
[3] VERDICT OF THE MAGISTRATE’S COURT
¶3.1 Nasrin filed a complaint under §190 of Code of Criminal Procedure, 1973 to the Judicial
Magistrate. But he dismissed the complaint citing that no prima facie case has been made out
against Aarif under §494 of Indian Penal Code.
[4] VERDICT OF THE HIGH COURT
¶4.1 Society for Compassionate Feminism (SCF) is a NGO working for protecting women and
securing protection for women from arbitrary legislations. Ms. Alisha Farooq, the head of SCF
has been an activist and addressed many public forums raising awareness regarding the various
discriminatory legislations against women.
¶4.2 SCF along with Nasrin filed a Public Interest Litigation in the High of Court of Dhruvasthan
in which Aarif was also made a respondent. In the petition, the constitutional validity of §494 of
Indian Penal Code, 1860 read with §2 of the Muslim Personal Law (Shariat) Application Act,
1937 on the ground of violation of provisions of Part III of the Constitution of India was being
challenged.
¶4.3 They contended that the impugned legislations were arbitrary and created unreasonable
classification on the ground of religion. But the High Court of Dhruvasthan dismissed the
petition on the ground that the relaxed rule of locus standi in PIL is available in case the person
aggrieved is economically backward and hence access to justice is denied to the person. Since
Nasrin is well educated and was working as Assistant Professor, there is no merit in filing a PIL.
[5] INSTANTANEOUS SPECIAL LEAVE PETITION
¶5.1 Aggrieved by the order of High Court of Dhruvasthan, SCF and Nasrin filed a Special
Leave Petition under Art. 136 of Constitution of India. The Supreme Court granted leave and the
matter is being heard.

P a g e | xi
STATEMENT OF ISSUES
[I]
WHETHER THE DISMISSAL OF THE PIL BY THE HIGH COURT WAS RIGHT OR
WRONG?
[II]
WHETHER SECTION 494 OF THE INDIAN PENAL CODE, 1860 READ WITH
SECTION 2 OF THE MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT,
1937 IS VIOLATIVE OF ART. 14 OF THE CONSTITUTION?
[III]
WHETHER SECTION 494 OF THE INDIAN PENAL CODE, 1860 READ WITH
SECTION 2 OF THE MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT,
1937 IS VIOLATIVE OF ART. 21 OF THE CONSTITUTION?
[IV]
WHETHER POLYGAMY VIOLATES THE PARAMETERS EXPRESSED IN ART. 25

OF THE INDIAN CONSTITUTION?

P a g e | xii
SUMMARY OF ARGUMENTS
[1.] THE DISMISSAL OF THE PIL BY THE HIGH COURT WAS RIGHT
The PIL filed by the petitioner and Nasrin under Art. 226 of the Indian Constitution is not
maintainable and was rightly dismissed by the Hon‟ble High Court of Dhruvasthan. The
petitioner in the present case SCF is just a voluntary organization and does not necessarily have a
genuine interest in this matter. Nasrin, the petitioner along with SCF does not belong to the
disadvantaged section of the population as she was educated and a working professional. The
respondent being a Muslim is permitted by his personal laws to have up to four wives, hence he
cannot be punished under §494 of the IPC. In the instant PIL there is no violation of Right to life
as personal laws does not come within the ambit of Part III of the Constitution. The court cannot
usurp the functions assigned to the legislature under the constitution and it cannot indirectly
require the legislature to pass a new law. Therefore the PIL was dismissed by the High Court on
the right grounds.
VIOLATIVE OF ART. 14 OF THE CONSTITUTION OF INDIA
§494 of the IPC read with §2 of the Muslim Personal Law (Shariat) Application act, 1937 is not
violative of Art. 14 because personal laws cannot be challenged as being violative of Part III of
the Constitution. Moreover, the words given in the provision do not discriminate on the grounds
of religion. §494 does not exclude Muslims from being prosecuted under the section if the
marriage contracted by them is void. Art.14 of the Constitution is not violated because right to
equality does not require absolute equality. There is no unreasonable classification made under
this section.
ART. 21 OF CONSTITUTION OF INDIA

P a g e | xiii
§494 of the Indian Penal code, 1860 read with §2 of the Muslim Personal law (Shariat)
Application Act, 1937 is not violative of Art. 21 of Constitution of India.” The alleged violation
of Art. 21 is misconceived because the procedure established by law, as mentioned in Art. 21 of
the Constitution, means the law prescribed by the Legislature and the law has recognized
polygamy as a valid institution for the Muslims. It is further contended that the Husband being
an educated and employed man is capable to take care of his wives. The petitioner also has the
option obtaining a decree for dissolution of marriage in the event of the respondent taking a
second wife. It has been observed by the court that in the privacy of the home and the marriage
life, Art. 21 has no place. Since, both the petitioner and the respondent have contracted their
marriage according to the customary Islamic law, they are legally bound to follow their customs
and practices. Therefore in the instant case the respondents „Right to live‟ under Art. 21 has not
been violated.

OF THE INDIAN CONSTITUTION
In order to violate Art. 25 of the Constitution, it is necessary that it violates public order,
morality or health or it infringes the other provisions of Part III of the constitution. The state
cannot regulate economic, financial, political, or other secular activity which may be associated
with religious activity. Furthermore, religious freedom is not subject to law providing for social
reform. Parties have chosen to marry as per the customary personal law and personal law
governs any person who chooses to submit himself to such law until the Uniform Civil Code
comes into existence. Lastly, personal laws fall outside the ambit of the meaning of “law in
force” under Art. 13 and thus the question of it violating the parameters expressed in Art. 25
does not arise.

Page |1
ARGUMENTS ADVANCED
[1.] THE DISMISSAL OF THE PIL BY THE HIGH COURT WAS RIGHT
¶1. The respondents humbly submit that the PIL filed by the SCF and the petitioner is not
maintainable in the High Court of Dhruvasthan under Art. 2261 of Indian Constitution. This
argument is fourfold. Firstly, [1.1] the petitioner and SCF has no locus standi to file the instant
PIL. Secondly, [1.2] there was no violation of fundamental rights in the instant case. Thirdly,
[1.3] the issue of polygamy is a matter of personal law which the Hon‟ble court cannot intervene.
Lastly, [1.4] the PIL was veiled to the present personal dispute. Therefore, the High Court of
Dhruvasthan was right in dismissing the PIL.
[1.1] SCF has no locus standi in the instant PIL
¶2. It is most humbly submitted that the PIL filed by the petitioner and Nasrin under Art. 2262 of
the Indian Constitution is not maintainable and was rightly dismissed by the Hon‟ble High Court
of Dhruvasthan. The PIL was filed by SCF, a non- government organization before the Hon‟ble
High Court of Dhruvasthan challenging the constitutional validity of §494 of Indian Penal Code,
1860 read with §2 of the Muslim Personal Law (Shariat) Application Act, 1937 on the ground of
violation of provisions of Part III of the Constitution of India. “Locus standi”, is the right of a
party to appear and be heard on the question before any tribunal 3 The petitioners are entitled to
appropriate relief under the provisions of Art. 226 of the Constitution of India, provided it is
proved to the satisfaction of the Hon‟ble Court that the petitioners have a sufficient interest in the
matter and that their Fundamental Rights have been violated.4 Justice Khalid in Sachidanand
Pandey v. State of West Bengal 5 held that, “If courts do not restrict the free flow of such cases in
the name of public interest litigation, the traditional legislature will suffer and the courts of law,
instead of dispensing justice, will have to take upon themselves administrative and executive
functions”. In the instant matter, the Non- Governmental Organisation, SFC has no sufficient
interest whatsoever. There must be real and genuine public interest involved in the litigation and
1
J.N Pandey, Constitutional Law of India (51st ed., Central law agency, Allahabad).
2
Hingorani, Aman, Public Interest Litigation (Indian Law Institute, 2011).
3
Wharton‟s Law Lexicon, 1019 (15th Ed., 2009).
4
Poonam v. Sumit Tanwar, 1 AIR 1384 (SC: 2010).
5
1 AIR 1109(SC: 1987).

Page |2
not merely an adventure of knight errant borne out of wishful thinking. Public Interest Litigation
which has now come to occupy an important field in the administration of law should not be
"publicity interest litigation" or “private interest litigation” or “politics interest litigation”. 6 In
Guruvayur Devaswom Managing Committee v. C.K. Rajan, & Ors.,7 it was observed that any
member of public having “sufficient interest” may maintain petition by way of Public Interest
Litigation provided there is an injury to a disadvantaged section of the population for whom
access to legal justice system is difficult.8 The petitioner in the present case SCF is just a
voluntary organization and does not necessarily have a genuine interest in this matter. Nasrin, the
petitioner along with SCF does not belong to the disadvantaged section of the population as she
was educated and a working professional. The Supreme Court observed that the process of
Public Interest Litigation has been abused by persons who do not have any interest or concern
with the issue except for some oblique consideration.9 Thus in the present case if the SCF fails to
prove sufficient and genuine interest of their organization in the writ petition than the petition is
not maintainable before the court.
[1.2] There is no violation of fundamental rights
¶3. The jurisdiction vested in the High Court is exercisable for the enforcement of fundamental
rights conferred by Part III of the Constitution. Where there is no question of the enforcement of
a Fundamental right, Art. 226 has no application.10 In the present case there is neither a violation
of fundamental rights of the petitioner (SCF) nor of Nasrin. Relying on BALCO Employees’
Union (Regd.) v. Union of India11 , the court has time and again reminded the only ground in
which a person can maintain Public Interest litigation is where there has been an element of
violation of Art. 21 on human rights or where the litigation has been initiated for the benefit of
the poor and the underprivileged who are unable to come to the court due to some
disadvantage.12 In the instant petition, the petitioner‟s claim that there is violation of fundamental
rights is frivolous and completely false. The respondent being a Muslim is permitted by his
6
Id.
7
1 AIR 561(SC: 2004).
8
BALCO Employees Union (Regd.) v. Union of India & Ors., 1 AIR 350(SC: 2002); Dr. D.C. Wadhwa & Ors. v.
State of Bihar & Ors.,1AIR 579(SC: 1987).
9
Sachidanand Pandey, Id., at 5.
10
Charanjit Lal Chowdhury v. Union of India,1 AIR 41(SC: 1951).
11
Id., at 7.
12
Villianur Iyarkkkai Padukappu Maiyam v. Union of India, 7 SCC 561 (2009).

Page |3
personal laws to have up to four wives, hence he cannot be punished under section 494 of the
IPC. The Latin maxim of ubi jus ibi remedium would work here as there is absolutely no legal
wrong, thus there can be no question of any remedy. The Court confines itself to the question of
infringement of Fundamental Rights and does not go into any other question.13
i) No violation of Art. 14
¶4. Art. 14 states that the state shall not deny to any person equality before the law and equal
protection of the laws within the territory of India. The legislature has rightly distinguished the
people based on their personal laws which is neither discriminatory nor is it derogatory. It is for
the legislature to make laws according to the need of the people.
ii) No violation of Art. 21

¶5. On account of liberal interpretation of the words “life” and “liberty” in Art. 21 of the
Constitution of India, mere allegation of an Act being discriminatory is not sufficient for the
Supreme Court to strike down legislation as ultra vires, some constitutional infirmity has to be
shown and established. Liberty is the right of doing an act which the law permits.14 In the instant
PIL there is no violation of Right to life as personal laws does not come within the ambit of Part
III of the Constitution.
[1.3] The Hon’ble Court cannot intervene in matters of Personal law.
¶6. The PIL is not maintainable and was rightly dismissed as the personal laws cannot be
challenged in the court for being violative of fundamental rights. The court cannot usurp the
functions assigned to the legislature under the constitution and it cannot indirectly require the
legislature to pass a new law.15 The Court went on saying that such suits should not be
entertained by the courts as it does not fall under the category of public interest litigation.16 The
Apex court in Ahmedabad Women Action Group v. Union of India17 rejected the PIL challenging
he constitutional validity of polygamy on the ground that the Court cannot interfere in questions
of legislative policy.
13
Khyerbari Tea Co. v. State of Assam 1 AIR 1964 SC 925.
14
Kartar Singh v State of Punjab, 3 SCC 569 (1994).
15
16
Dr. D.C. Wadhwa & Ors., Id., at 8.
17
3 SCC 573(1997).

Page |4
[1.4] The PIL is veiled to present the personal dispute
¶7. The Hon‟ble Court has time and again reiterated through several case laws that a third party
would not be allowed to seek remedy under Art. 226 for individual cases of wrong or injury. 18
19
Individual disputes cannot be allowed to be converted into public interest litigation. The
Supreme Court of India explained the philosophy underlying PIL, when there is a violation of a
fundamental right of a person or a class of persons who cannot have resort to the Court because
of poverty or disability or economically disadvantaged position, the Court must allow any
member of the public acting bona fide to espouse the cause of such a person or persons and move
the Court for judicial enforcement of the Fundamental Right of such a person or class of persons.
In the instant case, SCF has filed the petition on behalf of Nasrin who does not fulfill any of the
above parameters. Nasrin is educated and economically stable, and hence she should have taken
an alternative legal recourse instead of filling a PIL. Hence the High Court of Dhruvasthan was
right in dismissing the PIL.
VIOLATIVE OF ART. 14 OF THE CONSTITUTION.
¶8. The respondent humbly submits that §49420 of the IPC, read with §221 of the Muslim
Personal Law (Shariat) Application Act is not violative of Art. 14 of the Constitution due to the
following reasons. Firsly, [2.1] §494 of IPC read with §2 of the Muslim Personal Law (Shariat)
Application Act, 1937 is not discriminatory on the grounds of religion; secondly, [2.2] Art. 14 of
the Constitution is not violated; thirdly, [2.3] Personal laws cannot be challenged as being
violative of fundamental rights; lastly, [2.4] Uniform Civil Code under Art. 44 is not enforceable.
[2.1] Personal laws cannot be challenged as being violative of fundamental rights

¶9. It is humbly submitted by the respondents that the personal laws are derived from
authoritative sources and thus the Hon‟ble Court cannot examine the constitutional validity of
18
S.P Gupta v. Union of India, 1 AIR 149(SC: 1982); Nakara v. Union of India, 1 AIR 130(SC: 1983).
19
Nandjee v. P.G Medical Students, 3 SCC 400(1993).
20
Ratanlal Ranchhoddas & Dhirajlal Keshavlal Thakore, Indian Penal Code (33rd ed. 2011).
21
Tahir Mahmood & Saif Mahmood, Muslim law in India and Abroad (2nd ed., Universal Law Publication Co.,
2016).

Page |5
practices of marriage since Part III of the Constitution does not imbibe personal laws of the
parties.
[2.1.1] Personal laws cannot be challenged as being violative of Part III of the Constitution
¶10. In State of Bombay v. Nasaru Appa Mali22 it was held that since the issues related to
personal laws fall under item 5 of the Concurrent List, it is competent only for the State or the
Legislature to legislate upon them. Furthermore, the Court also 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
personal law cannot be challenged.23
[2.2] §494 of IPC read with §2 of the Muslim Personal Law (Shariat) Application Act, 1937
is not discriminatory on the grounds of religion
¶11. §494 does not discriminate between an offender belonging to Hindu/Muslim/Christian male
or female and can be proceeded with under this section provided ingredients of §494 are made
out.24 In a case where a Muslim male marries a fifth wife, he can very well be prosecuted
under §494 IPC since the 5th marriage will be void, personal law having permitted only four
wives to be taken together.25
[2.3] Art. 14 of the Indian Constitution is not violated

¶12. Mere discrimination or inequality of treatment does not amount to violation of Art. 14.26 In
fact the word “discrimination” does not occur in Art. 14.27 What Art. 14 tries to prevent is that no
person or class of persons shall be singled out as a special subject for discrimination and hostile
legislation.28 The right to equality does not require absolute equality or equality among the
unequals.29 There is always a presumption in favour of the constitutionality30 and the burden is
22
1 AIR 84(Bom: 1962).
23
Ahmedabad Women Action Group, Id., at 17.
24
Venugopal K. v. Union of India, 4 SCC 3(Ker: 2001).
25
Id.
26
Keshavan Madhava Menon v. State of Bombay, Cri LJ 680(1951).
27
Kathi Raning Rawat v. State of Saurashtra, 1 AIR 123(SC: 1952).
28
Haisnam Baruniton Singh v. Thokchom Ningol Haisnam Ongbi, Cri LJ 493(1959).
29
Devadasan v. Union of India,1 AIR 179(SC: 1964).
30
Uday Raj Rai, Fundamental Rights and their Enforcement (PHI Learning Pvt. Ltd., 2011).

Page |6
upon him who attacks it to show that there has been a clear violation of constitutional
principles.31 The legislature is in the best position to understand and appreciate the needs of
people as enjoined by the constitution.32 For an act not to violate Art. 14, there must not be any
substantive unreasonableness33, it should not be manifestly arbitrary34, and it should satisfy the
two tests of reasonableness. (a) intelligible differentia which distinguishes persons or things that
are grouped together from other left out in the group.35 (b) rational nexus36 that connects the
object sought to be achieved by the act with the intelligible differentia ascertained 37 in (a).
Thus it is submitted by the counsel for the respondent that Art. 14 of the Constitution is not
violated because, firstly, [2.3.1] Right to equality does not require absolute equality; secondly,
[2.3.2] Classification is based on intelligible differentia; thirdly, [2.3.3] There is rational nexus
between the classification and the object sought to be achieved.
[2.3.1] Right to equality does not require absolute equality
¶13. A law providing for equal treatment of unequal objects, transactions or persons would be
condemned as discriminatory if there is absence of rational relation to the object intended to be
achieved by the law.38 Art. 14 forbids class legislation but does not forbid classification which
rests upon reasonable grounds of distinction.39 By the process of classification, the State has the
power of determining who should be regarded as a class for purposes of legislation and in
relation to a law enacted on a particular subject.40 This power, no doubt, in some degree is likely
to produce some inequality; but if a law deals with the liberties of a number of well-defined
classes, it is not open to the charge of denial of equal protection on the ground that it has no
application to other persons.41
¶14. §494 does not exclude Muslim men from committing such offence; instead it lays down the
ingredients for the commission of such offence. If any Muslim man contracts a marriage that is
31
Mohd. Hanif Qureshi & Ors. v. State of Bihar,1 AIR 731(SC: 1958).
32
Radharani Mahadev Kolambe v. State of Karnataka, (Kar: 2009).
33
Bidhanagar (Salt Lake) Welfare Assn. v. Central Valuation Board and Ors., 1AIR 2276(SC: 2007).
34
Bombay Dyeing and Manufacturing Co. Ltd. v. Bombay Environmental Action Group, 1 AIR 1489(SC: 2006).
35
Pathumma v. State of Kerala, 1 AIR 771(SC: 1979).
36
Kedar Nath Bajoria v. State of West Bengal, 1 AIR 404(SC: 1953).
37
Mohd. Hanif Qureshi, Id., at 31.
38
Venkateshwara Theatre v. State of Andhra Pradesh and Ors., 3 SCR 616(1993).
39
Chiranjit Lal Chowdhary, Id., at 10.
40
Vol.2, D.D. Basu, Commentary on the Constitution of India (8th ed., 2012).
41
In Re, Special Courts Bill, 1 SCC 380(1979).

Page |7
void according to the Muslim Personal law, he is very well subject to punishment under the said
provision. Thus, the provision cannot be said to violate Art. 14 as it does not criminalize only a
particular group of people or does not target non-Muslim men. It merely identifies certain
conditions which if followed would constitute an offence.
[2.3.2] Classification is based on intelligible differentia

¶15. The classification is based on intelligible differentia, which distinguishes persons or things
grouped together in the class from others left out of it.42 The purpose and policy of the act has to
be examined in this regard, which can be ascertained from its title, preamble43 and provisions.44
Supreme Court has re-iterated the concept of “Right to Equality” and stated that the Constitution
does not allow class differentiation but permits reasonable classification based on intelligible
differentia.45 The classification is based on people who marry under Muslim personal law and
people who do not marry under Muslim personal law is a reasonable classification.
[2.3.3] There is rational nexus between the classification and object sought to be achieved
¶16. To determine inequality of treatment or discrimination under Art. 14, the object of the
legislation is taken into consideration.46 Intelligible differentia adopted as the basis of
classification has a reasonable nexus with the object sought to be achieved by the statute in
question.47 The reasonableness of the nexus is to be ascertained with reference to the object of
the legislation and not on the basis of any moral considerations. 48 As the Quran indicates (4:3),
the issue of polygamy in Islam is understood in the light of community obligations towards
orphans and widows.49 Islam is a universal religion that is suitable for all times and places, and
one cannot ignore these compelling obligations.50 The State Legislature may have thought that
the Hindu community was more ripe for the reform in question. Hence, if the State Legislature
42
Javed v. State of Haryana, 1 AIR 269 (SC: 2003).
43
PN Kaushal Etc. v. Union of India, 1 AIR 1457(SC: 1978).
44
P B Roy v. Union of India, 1 AIR 908(SC: 1972).
45
National Council for Teacher Education v. Shri Shyam Shiksha Prashikshan Sansthan [Civil Appeal No. 1125-
1128 of 2011].
46
Thiru Muruga Finance v. State of Tamil Nadu, 1 AIR 137(Mad: 2000).
47
State of Haryana v. Jai Singh, 1 AIR 1696(SC: 2003).
48
Garg RK v. Union of India, 1 AIR 404(SC: 1981).
49
Dr. Kauser Edappagath, Divorce and Gender Equity in Muslim Personal law in India (Lexis Nexis, 2014).
50
Abdul Rahim, Muhammadan Jurisprudence, 73 (Luzac And Company, 2004).

Page |8
acting on such considerations decided to enforce this reform in the first instance amongst the
Hindus, it is not possible to hold that the act has violated equality before law under Art. 14.51
[2.4] Uniform civil code under Art. 44 is not enforceable
¶17. Art. 44 being only a Directive Principle of State Policy is not enforceable. 52 In Lily Thomas
and Ors. v. Union of India53, it was held that the court had no power to give directions for the
enforcement of Directive Principles of State Policy in Part IV of the Constitution which includes
Uniform Civil Code under Art. 44. Art. 37 of the Constitution makes it very clear that the
provisions contained in the Directive Principles of State Policy are not enforceable by any court
of law and therefore, the courts have no jurisdiction over them.54 Thus the vision contemplated in
this Art. is a constitutional goal yet to be achieved.55 Moreover, the uniform civil code hasn‟t
gathered much support yet because while enacting legislation for the society at large it may
overlook in the interests of the minorities.
ART. 21 OF CONSTITUTION OF INDIA.
¶18. It is humbly submitted by the counsel for the respondents that §494 of the IPC read with §2
of the Muslim Personal Law (Shariat) Application Act, 1937 is not violative of Art. 21 56 of the
Constitution of India since; Firstly, [3.1] §494 of IPC does not apply to Mohammaden males;
secondly, [3.2] there is no prima facie violation of Art. 21 of the Constitution; thirdly, [3.3] §2 of
the Muslim Personal Law (Shariat) Application Act is not violative of Art. 21 of the Constitution
of India.
[3.1] § 494 of IPC does not apply to Mohammedan males
51
52
Prof.K.C Jena, Uniform Civil Code, (2nd ed., Kalinga Law House).
53
7 SCC 653(2013).
54
V. N Shukla, Constitution of India (12th ed. Eastern Book Company, 2016).
55
M.P. Singh, Special Editorial Note On Uniform Civil Code, Legal Pluralism and the Constitution of India, Journal
of Indian law and Society (Vol.5).
56
Vol.3, D.D. Basu, Commentary on the Constitution of India (8th ed., 2012).

Page |9
¶19. There can be no doubt that the Muslims have been excluded from the operation of the Act
in question.57 The expression “marries in any case in which, such marriage is void by reason of
its taking place during the life of such husband or wife” means that the person who marries a
second time during the life of his or her first spouse, would be punished under Section 494 of the
IPC only if such second marriage is not recognized by the Personal Law by which he or she is
governed.58 Section does not require that the second marriage with the person concerned must
otherwise be valid according to law. Hence, it is humbly submitted that in the absence of a
Uniform civil code, a Muslim man cannot be prosecuted for bigamy. Any piecemeal attempts of
courts to bridge the gap between personal laws cannot take the place of a common Civil Code59.
[3.2] There is no prima facie violation of Art. 21 of the constitution
¶20. Art. 21 of the Constitution of India states that, “no person shall be deprived of his life or
personal liberty except according to procedure established by law”. In the present matter, the
alleged violation of Art. 21 is misconceived because the petitioner has not been deprived of her
right to life and liberty. The procedure established by law, as mentioned in Art. 21 of the
Constitution, means the law prescribed by the legislature and the law has recognized polygamy
as a valid institution for the Muslims60. The petitioner cannot claim any rights under this Art.
because she cannot be unreasonably given special privileges against other Muslim women who
are subjected to this. She cannot be singled out to be given any special treatment, as this ill
violate Art. 14 of the Constitution.61
¶21. It is further contended that the husband being educated and employed can take care of his
wives. Even then if the petitioner is aggrieved by her husband‟s second marriage, she can obtain
a decree for dissolution of marriage. In India a Muslim wife can divorce her husband, under his
delegated power in the event of his taking a second wife62. It has been observed by the court that
in the privacy of the home and the marriage life, Art. 21 has no place, and that in a sensitive
57
58
Jafar Abbas Rasool Mohammad Merchant v. State of Gujarat
59
Danial Latifi & Anr v. Union Of India, 7 SCC 740, 746(2001).
60
61
A.R. Antulay v. R.S. Nayak & Anr. 1 AIR 1531(1988).
62
Badu Mia v. Badrannessa, 2 AIR 511(Cal: 1919).

P a g e | 10
sphere which is at once intimate and delicate, the introduction of Constitutional law will have the
effect of weakening the marriage bond.
¶22. It is thus submitted that the petitioner can raise a claim only for the rights under the normal
procedure63 and in the present matter; there has been no instances where her right under Art. 21
of the Constitution is violated.
[3.3] §2 of Muslim Personal law (Shariat) Application Act is not violative of Art. 21 of the
constitution
¶23. In the present matter, both the petitioner and respondent belong to Sunni Muslims and they
are governed under the Muslim personal laws. Since, they have contracted their marriage
according to the customary Islamic law, they are legally bound to follow their customs and
practices. The Shariat Act is being a legislation dealing with personal paw, §2 of that Act, in
whole or in part, cannot, having regard to the decisions of the apex Court in the case of
Ahmedabad Women Action Group v. Union of India64. The Act is a social legislation to make
applicable the Shariat law which is a well-recognized and purest form of law as imbibed in
Quran, Hadis, Ijma and Qiyas.65 In interpreting the provisions where matrimonial relationship is
involved the social conditions prevalent in the society have to be considered.66
¶24. A reading of the statement of objects and reasons of the Shariat Act would show that
Muslims of British India had persistently urged that customary law should not take the place of
Muslim personal law. The character of Muslim personal law did not undergo a change by reason
of the enactment of the Shariat Act, nor has the Muslim personal law metamorphosed into a
statute. The rights and duties of Muslims in India continue to be governed by Muslim personal
law. It is submitted that challenging the validity of §2 of the Shariat Act is a futile action for the
following reasons. Firstly, [3.3.1] §2 of the Act does not provide for rights and obligations;
secondly, [3.3.2] Shariat Act has not been transformed into a statute; thirdly, [3.3.3] Parameters
of challenge applicable to a statute is different from that of a personal law.
[3.3.1] §2 of the Act does not provide for rights and obligations
63
Surajmal Mohta v. Vishwanath Sastry, 1 AIR 545(1955).
64
A.S.Parveen Akthar v. The Union Of India, 3 SCC 573(Mad: 2002).
65
Id.
66

P a g e | 11
¶25. §2 of the Act does not by itself bring about any law providing for rights and obligations to
be asserted and discharged by the Muslims as a community. It only reaffirms and statutorily
perpetuates Muslim personal law. Therefore, the rights and obligations of the persons who are
subjected to Muslim personal law will continue to be the same.67
[3.3.2] Shariat Act has not been transformed into a statute
¶26. The Muslim personal law namely the Shariat has neither transformed or metamorphosized
itself into a statute. Thus, assuming §2 of the Act in a limited way is otherwise interfered with
the Muslim personal law would govern the parties namely the Muslims in India. Thus, striking
down of §2 of the Shariat Act in whole or part does not interfere with the body of rules that
continue to govern the Muslims in India, namely the Shariat.
[3.3.3] Parameters of challenge applicable to a statute is different from that of a personal law
¶27. The parameters of challenge that are applicable to a statute as such would be different from
that of the parameters that are applicable when a personal law is under challenge. Assuming that
any provision in a personal law can be challenged, any such challenge would have to pass
through the test of Art. 25 and 26 of the Constitution of India.68 It is submitted that the right
under Art. 25(1) to freely profess practice and propagate religion is a universal right that is
guaranteed to every citizen to act in affirmation of his own faith.69 This is the core of the secular
nature of the Indian Constitution.
¶28. The fact that the Shariat Act affirms the applicability of the Muslim personal law and
perpetuates it by virtue of Section 2 thereof would not give the Muslim personal law a statutory
flavor so as to make it a State action, subservient to Part III of the Constitution. The state has
only recognized the existence of the Muslim personal law. Hence, §2 of Muslim Personal law
(Shariat) Application Act is not violative of Art. 21 of the Indian Constitution.
67
Javaid Rehman, The Sharia, Islamic Family Laws and International Human Rights Law: Examining the Theory
and Practice of Polygamy and Talaq, International Journal of Law, Policy and the Family (Vol. 21, Issue 1, 2007).
68
Prabhat Shukla, An Approach to Indian Constitution, Scholedge International Journal of Business Policy &
Governance (Vol. 1, Issue1, 2014).
69
D. D Basu, Shorter Constitution of India (13thed., Wadhwa and Company, Nagpur 2006).

P a g e | 12

OF THE INDIAN CONSTITUTION?
¶29. In consonance with Art. 25 of Indian constitution, it guarantees every person the freedom of
conscience and the right freely to profess, practice and propagate any religion 70. In the present
matter the respondent been seriously disowned and discriminated on the basis of his religious
practices and beliefs. It is humbly submitted that firstly, [4.1] Polygamy does not violate the
constituents of Art. 25 of the constitution; secondly, [4.2] the parties had married as per the
customary Islamic law and lastly, [4.3] personal laws fall outside the ambit71 of laws under Art.
13.72
[4.1] Polygamy does not violate the constituents of Art. 25 of the Constitution.
¶30. Art. 25 guarantees the right to every person, the freedom of conscience and the right freely
to profess, practice and propagate religion.73 But it is imperiled to the scrutiny of these
limitations with reference to polygamy as mentioned below:
[i] Polygamy does not violate public order, morality and health
¶31. Deleterious practices that are against the interest of the society can be brought under the
judicial scrutiny.74 Interpretation of Art. 25 leads to the conclusion that religion is not confined to
religious belief, but includes practices, rituals and observances75 which are regarded by the
community as a part of their religion.76 Our Constitution not only protects religious opinion but it
safeguards acts done in pursuance of religion as well.77 In the present matter, both parties are
well educated and they belong to the sect of Sunni Muslims78 thus, the husband is permitted to
marry four times as per the Muslim personal law. Hence, it is submitted that there has been no
violation of public order, morality and health. Rather, he has only exercised his right to remarry
under the Islamic law.
70
Vol, 1, D.J. De,The Constitution of India, Asia Law House, Hyderabad.
71
Krishna Singh v. Mathura Ahir, 1 AIR 707(SC: 1980).
72
Madhu Kishwar v. State of Bihar, 5 SCC 125(1996).
73
M.P Jain, Indian Constitutional Law, 1246 (7th Ed., Lexis Nexis).
74
75
Commissioner, Hindu Religious Endowments v. Sri Shirur Mutt, 1 AIR 282(SC: 1954).
76
Tilkayat Sri Govindlalji v. State of Rajasthan, 1 AIR 1638(SC: 1963).
77
Ratilal Gandhi v. State of Bombay, 1 AIR 388(SC: 1954).
78
¶2.1, Statement of Facts.

P a g e | 13
[ii] Polygamy does not infringe other provisions of Part III of the Constitution?
¶32. It is an undisputed fact that Articles 14, 15 and 21 are obligations cast on the State, and as
such, were clearly inapplicable to matters of „personal law‟, which cannot be attributed to State
action. This Hon‟ble Court held that Part III of the Constitution does not touch upon the personal
laws of the parties.79 Personal laws of Hindus and Muslims were not laws within the meaning of
the expression laws in force under Art. 13(1) of the Constitution.80
[iii] The state cannot regulate economic, financial, political or other secular activity which
may be associated with religious practice81
¶33. A person is not liable to answer for the verity of his religious views, and he cannot be
questioned as to his religious beliefs, by the State or by any other person. It is essential to
classify practices that are fundamentally of a religious nature and those which are not. 82 State can
only intervene in secular matters and not essentially in religious affairs including marriage and
divorce83. Art. 25(2)(a), however, allows the State to make a law regulating or restricting any
economic, financial, political or other secular activity which may be associated with religious
practice. The practice of polygamy is neither an economic, nor a financial, nor political not any
other secular activity. Consequently, the question of whether this is an essential religious practice
or not will never arise in the context of Art. 25(2)(a).
[iv] Religious freedom is not subject to law providing for social welfare and reform
¶34. A religion has its basis in a system of beliefs or doctrines which are regarded by those who
profess that religion84. Hence, the Islamic community has every right to follow their customs and
traditions and it should not be interjected on the name of modernity85 or reformation of society86.
If courts start to enquire the rationality and reasonableness of religious practices, then that would
become what the court wish the practice to be. Therefore, it should be left to the community to
decide what is integral to their religion and what is not87.
[4.2] Parties had married as per the customary Islamic law.
79
Krishna Singh Id., at 56.
80
State of Bombay, Id., at 22.
81
Ratilal Gandhi, Id., at 62.
82
Commissioner, Hindu Religious Endowments, Madras, Id., at 75
83
Shayara Bano v. Union Of India & Ors. 4 JKLT 1(SC: 2017).
84
Sardar Syedna Taher Saifuddin Saheb v. The State Of Bombay, 1 AIR 853(1962).
85
John Vallamattom & Anr. v. Union of India, 6 SCC 611(2003).
86
Sri Adi Visheshwara of Kashi Vishwanath Temple,Varanasi & Ors. Etc. v. State of UP & Ors. 4 SCC 6064(1997).
87
N. Adithyan v. Travancore Devasom Board, Seshammal v. State of Tamil Nadu, 2 SCC 815 (1972).

P a g e | 14
¶35. It is humbly submitted before this Court that both the marriages were held in accordance
with the Islamic customary law. Personal law would always continue to govern any person who
chooses to submit himself to such law until such time that the vision of a Uniform Civil Code is
not achieved.88 Conundrum to this, the respondent is virtually denied of his inalienable rights
guaranteed to him by the Constitution:
 The sanction for polygamy among Muslims is traced to Verse 4: 3 of Holy Quran. It says,
Muslim husband has the right under his personal law to take a second, third or fourth
wife even while the first marriage subsists89.
 It is contended, that such of the couples who married in terms of their „personal law‟,
must be deemed to have exercised their conscious option to be regulated by the „personal
law‟, under which they were married. Having exercised the aforesaid option, it is not
open to a Muslim couple to then plead, against the practice of polygamy90.
 It is submitted, that when parties consent to marry, their consent does not extend to the
choice of the person with reference to whom the consent is extended, but it also implicitly
extends to the law by which the matrimonial alliances are to be regulated.
 It is submitted that under the Muslim personal law, parties at the time of executing
„nikahnama‟ (marriage deed) are free to incorporate terms and conditions 91, as may be
considered suitable by them. The petitioner being an educated lady could have kept
monogamy as a condition in the nikahnama.92
 It is also contended parties belonging to a particular religious denomination, had the
choice to opt for a secular and non-religious law, namely, the Special Marriage Act,
1954, and such of the parties who accept the choice (even if they profess the Muslim
religion), would automatically escape from all religious practices, including polygamy.
[4.3] Personal laws fall outside the ambit of laws under Art. 13
88
Shabnam Hashmi v. Union of India , 4 SCC 1(2014).
89
Lily Thomas, Id., at 53.
90
Shayara Bano, Id., at 83.
91
Dilbar Habib Siddiqui v. State of Uttar Pradesh. & Ors.,69 ACC 997(2010).
92
Saidali K.H. v. V.Saleena, 4KLT 136(SC: 2008).

P a g e | 15
¶36. It is humbly submitted that firstly, [4.3.1] Personal laws are not included in the expression
„laws in force „and secondly, [4.3.2] Customs are not personal laws; pertinence to expressio
unius est exclusio alterius.
[4.3.1] Personal laws are not included in the expression ‘laws in force ‘
¶37. It is well settled in State of Bombay v. Narasu Appa Malli93 that personal laws are not
„laws in force‟ under Art. 13(1) in fact, it refers to what may compendiously be called as
statutory laws. It is undisputed that laws which are included in this expression must have been
passed or made by a Legislature or other competent authority. The foundational source of
Muhammaden law is essentially Quran due to which personal law of Muslims does not fall
within the purview of expression „laws in force‟.
[4.3.2] Customs are not personal laws; pertinence to expressio unius est exclusio alterius.
¶38. It is settled that customs are local variations or exceptions from the ordinary law of the land.
Customs and usage are deviation from personal law and not personal law itself because:
(i) Art. 13(3) have expressly used only the expression "custom or usage" and have specifically
omitted the term personal law. This clearly points to the intention of the Constitution to exclude
personal laws from the realm of Art. 13. This is in consonance with the maxim Expressio Unius
Exclusio Alterius’94 which means that when a provision in a statute expressly mentions one or
more particulars, but does not mention some others, then those others not mentioned are taken to
have been excluded from the provision95.
(ii) The inclusion of Art. 4496 in the constitution is an important evidence of the fact that it
recognizes and maintains separate existence of personal laws.
(iii) It is expressly enacted in Shariat Act as amended that in all questions relating to the matters
specified, „the rule of decision‟ in cases where the parties are Muslims shall be the Muslim
Personal Law.97
93
1 AIR 84(Bom: 1952).
94
M/S Swastik Gases P.Ltd v. Indian Oil Corp.Ltd, 9 SCC 32(2013).
95
Union of India v. BC Nawn, 84 ITR 526(1972).
96
The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.
97
C. Mohammed Yunus v. Syed Unissa and Ors., 1 AIR 808(SC: 1961).

P a g e | xiv
PRAYER
Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly requested that this Hon‟ble Court may be pleased to adjudge and declare:
1. That the dismissal of the Public Interest Litigation by the High Court was right and just.
2. That the constitutional validity of polygamy cannot be challenged as violative of Art. 14 or
21.
And pass any such order, writ or direction as the Honorable Court deems fit and proper,
and for this act of kindness the counsel for the Respondents shall duty bound pray.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
COUNSEL FOR THE RESPONDENTS

BILS 5th National Moot Court Competition Memorial

Hochgeladen von

Dokumentinformationen

Originalbeschreibung:

Originaltitel

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

BILS 5th National Moot Court Competition Memorial

Hochgeladen von

Copyright:

Verfügbare Formate

BILS 5TH NATIONAL MOOT COURT COMPETITION, 2018

BILS 5th NATIONAL MOOT COURT COMPETITION, 2018

23rd – 25th MARCH, 2018

BEFORE THE HON’BLE SUPREME COURT OF INDIA

SCF & MS. NASRIN AL-FAREED. …PETITIONERS

UNION OF INDIA & DR. AARIF HAKIM …RESPONDENTS

SLP NO. ____/2018

ON SUBMISSION TO THE HON’BLE SUPREME COURT OF INDIA

UNDER ART. 136 OF THE CONSTITUTION OF INDIA

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENTS

COUNSEL APPEARING ON BEHALF OF THE RESPONDENTS

MEMORIAL FOR THE RESPONDENTS

[1.1] SCF has no locus standi in the instant PIL………………………………………….1

[1.2] There is no violation of fundamental rights…………………………………………2

[1.3] The Hon’ble Court cannot intervene in matters of personal law………………….3

[1.4] The PIL is veiled to present the personal dispute…………………………………..3

MEMORIAL FOR THE RESPONDENTS

[2.1] Personal laws cannot be challenged as being violative of fundamental rights…...4

[2.3] Art. 14 of the Indian Constitution is not violated………………………..…………5

[2.3.1] Right to equality does not require absolute equality……………….………...6

[2.3.2] Classification is based on intelligible differentia………………….…………7

[2.4] Uniform civil code under Art. 44 is not enforceable…………….…………………7

[3.1] § 494 of IPC does not apply to Mohammedan males………………………………8

[3.2] There is no prima facie violation of Art. 21 of the constitution…………………...9

[3.3.2] Shariat Act has not been transformed into a statute………………………..10

MEMORIAL FOR THE RESPONDENTS

[3.3.3] Parameters of challenge applicable to a statute is different from that of a

[4.] POLYGAMY DOES NOT VIOLATE THE PARAMETERS EXPRESSED IN ART. 25

[4.2] Parties had married as per the customary Islamic law…………………………...13

MEMORIAL FOR THE RESPONDENTS

ABBREVIATION FULL FORM

MEMORIAL FOR THE RESPONDENTS

A.M Bhattacharjee, Muslim Law and the Constitution,

[14] Mulla, Mohammedan Law 15 (2nd ed., Dwivedi Law Relied on

MEMORIAL FOR THE RESPONDENTS

Prof.K.C Jena, Uniform Civil Code, (2nd ed., Kalinga

[27] Wharton‟s Law Lexicon, 1019 (15th Ed., 2009). Mentioned, p. 1

MEMORIAL FOR THE RESPONDENTS

Javaid Rehman, The Sharia, Islamic Family Laws and

[1] and Practice of Polygamy and Talaq, International Mentioned, p. 11

[2] Code, Legal Pluralism and the Constitution of India, Mentioned, p. 8

[4] Scholedge International Journal of Business Policy & Mentioned, p. 11

[1] Constitution of India, 1950- Art.13

MEMORIAL FOR THE RESPONDENTS

Sl. No. Cases Page No.

MEMORIAL FOR THE RESPONDENTS

AIR 561(SC: 2004)

MEMORIAL FOR THE RESPONDENTS

[43] Sachidanand Pandey v. State of West Bengal, 1 AIR 1109(SC: 1987). 1, 2, 3, 10

MEMORIAL FOR THE RESPONDENTS

Art. 136 states that:

MEMORIAL FOR THE RESPONDENTS

[2] MATERIAL FACTS OF THE CASE

MEMORIAL FOR THE RESPONDENTS

[3] VERDICT OF THE MAGISTRATE’S COURT

[4] VERDICT OF THE HIGH COURT

[5] INSTANTANEOUS SPECIAL LEAVE PETITION

MEMORIAL FOR THE RESPONDENTS

WHETHER POLYGAMY VIOLATES THE PARAMETERS EXPRESSED IN ART. 25

MEMORIAL FOR THE RESPONDENTS

MEMORIAL FOR THE RESPONDENTS

[4.] POLYGAMY DOES NOT VIOLATE THE PARAMETERS EXPRESSED IN ART. 25