TC--10

E-JUSTICE INDIA

1st NATIONAL MEMORIAL WRITING AND DRAFTING COMPETITION, 2020

INDIA
BEFORE THE HON’BLE SUPREME COURT OF INDISTAN

In the Matter of:

“MADADGAR”………………………………………………….Petitioner

MEMORIAL ON BEHALF OF THEv.RESPONDENT

Union of Indistan………………………..………………………Respondent

PETITION INVOKED UNDER ART. 32 OF THE CONSTITUTION OF INDISTAN

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE OF THE HON’BLE SUPREME COURT OF

INDIA

MEMORIAL ON BEHALF OF THE PETITIONER

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TABLE OF CONTENTS
COVER PAGE ………………………………………………………..……..…………….01

TABLE OF CONTENT……………………………………………………..……….……02

LIST OF ABREVIATION ………………………………………………………….. …….03

INDEX OF AUTHORITIES……………………………………………………………….05

STATEMENT OF JURISDICTION………………………………………………….........07

STATEMENT OF FACTS…………………………………………………………………08

ISSUES RAISED……………………………………………………………….……….....10

SUMMARY OF ARGUMENTS…………………………………………………………...11

1. WHETHER THE PETITIONS ARE MAINTAINABLE OR NOT?............13-15

1.1That the writ petitions are maintainable under Article 32………………………………...13

1.1.1 That the petitioners have a locus standi………………………………………………...13

1.1.2There is no requirement for the Petitioner to exhaust local remedies………………13-14

1.2That the writ petitions are maintainable under article 136 of the Constitution of Indistan14

2. WHETHER THE CONVERSION AND MARRIAGE OF NOORI IS VALID?.16

2.1that the right to convert is a fundamental right of choice………………………………...16

2.2Marriage of Noori is valid and not case of ‘love jihad’………………………………….17

3. WHETHER THE PRACTICES OF POLYGAMY; NIKAH HALALA; NIKAH

MUTAH; AND NIKAH MISYAR ARE UNCONSTITUTIONAL?..............................17

3.1the practise of polygamy is unconstitutional as it do injustice to Muslim women……….17

3.2the practice of Nikah halala is against the fundamental right for women under Art. 14…18

3.3nikah mutah and nikah misyar are unconstitutional as it is against the Art. 25(1)……….18

4. WHETHER THE DISCRIMINATORY PRACTICES UNDER MUSLIM

PERSONAL LAW ARE UNCONSTITUTIONAL?........................................................19

4.1discrimination with women under Muslim personal(shariat)……………………………..20

4.2violation of Art.13,14,15,21&25(a) of the indian constitution…………………………...21

PRAYER ……………………………………………………………….………………..…22

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 LIST OF ABBREVIATIONS

¶ : Paragraph

AIR : All India Reporter

Art. : Article

All ER : All England Law Report

Bom : Bombay

Const. : Constitution

Cl : Clause

Cal : Calcutta

CWN: Calcutta Weekly Report

DLT : Delhi Law Times

DMC : Divorce and Matrimonial cases

Edn. : Edition

HC : High Court

HMA : Hindu Marriage Act

Hon'ble : Honourable

IT : Information Technology

i.e : That is

LR : Law Reporter

OLR : Orissa Law Review

PIL : Public Interest Litigation

P&H : Punjab and Hariyana

SC : Supreme Court

SCC : Supreme Court Cases

SLP : Special Leave Petition

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SCR : Supreme Court Reporter

UP : Uttar Pradesh

UN : United Nation

UNGA : United Nation General Assembly

URL : Uniform Resource Locator

US : United State

V. : Versus

VS. : Versus

W.P. : Writ Petition

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 INDEX OF AUTHORITIES

CASES

s.no. Title Citation Appear On

Page(S)
1. State of Madras v. V.G Row AIR 1952 SC196 13

2. Prem Chand Garg v. Excise Commissioner AIR 1963 SC 996 13

U.P

3. Smt. Ujjam Bai v. State of U.P (1963) 1 SCR 778 13

4. Bodhisattwa Gautam v. Subbra Chakraborty AIR 722 SC 1996 13

5. S.P Gupta v. UOI AIR 149, SC 1982 13,

6. PUDR v. UOI AIR 1473 SC 1982 13
7. Bandhua Mukti Morcha v. UOI AIR 802 SC 1986 12
8. M.C Mehta v. UOI AIR 1987 SC 1086 14,
9. T.N. Godavarman Thirumulkpad v. UOI 2006 WPC No. 202 of 14
1995
10. Gurtej Singh v. Union of India (UOI) and (1990) 1 ILR Punjab and 15
Ors. Haryana 418
11. Manickam v. Unknown AIR 1950 Mad 576 14
12. Kanubhai Brahmbhatt v. state of Gujarat AIR 1987 1159 14
13. P N kumar & Other v. Municipal corporation 1988 SCR (1) 14
of Delhi
14. Mohammed Ishaq v. S. Kazam Pasha SLP(Crl.) 3209/2008 14
1
15. Central Board of Dawoodi Bohra v. , (2005) 2 SCC 673 14
State of Mahrashtra and ors.
16. Nilabati Behera v. State of Orissa AIR 1960 SC 1993) 14
17. Kharak Singh v. State of Uttar Pradesh AIR 1963 SC 1295 14
18. Romesh Thappar Vs. The State of Madras AIR 1950 SC 124 14
19. BalPatil &Ors.v. UOI & Ors. AIR 2005 SC 3172 15
20. Robasakhanum v. KhodadadBomanjiIran AIR 1947 Bom. 272 15
21. ShafinJahan v. Asokan K.M. &Ors AIR 2018 SC 434 15,16
22. Naresh Amrita Shah and Ors. v. (2001) 2 ALL MR 379. 15
KantilalChunilal Shah and Ors
23. Nanda kumar&Ors. Vs. State of Kerala (2018) 3 JCC 1858 15
&Ors

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24. K.S. Varghese &Ors.Vs. peter’s & Paul’s (2017) 3 KLT 261 16
Syrian Orth. &Ors
25. Madras bar Association vs. Union of India AIR 2015 SC 1571 16
26. UpsanaChoudary&Ors. Vs. The Director (2005) 10 SCC 704 16
General of Police &Ors.
27. Gian Devi v Superintendent, NariNiketan, Delhi (1976) 3 SCC 234. 16
Delhi
28. Girish v Radhamony 2009(16) SCC 360 16
29. Abdul khadir V. salima (1886) 8 AII. 149 at 154 17
30. shayrabano V. union of india 2017(9)SCC 1 17,19
31. shoharatsingh v. jafribibi (1915) 17 BOMLR 13 19
32. Luddunsahiba v. Mirzakamar ILR 8 Cal. 736 19
33. Mohd. Ahmed Khan v. Shah Bano Begum (1985) AIR 945 20
and others
34. State of Bombay v. Narasuappa Mali, AIR 1952 BOM 84 20

BOOKS

1. M.P. Jain , Indian Constitutional Law (LexisNexsis, Eighth Edition,2019)…13,14

2. Dr. J.N. Pandey, Constitutional Law of India (Central Law Agency, Fifty-sixth
edition,2019)………………………………………………………………13,14
3. V. N. Shukla, Constitution of India (EBC explorer ,Thirteenth Edition,2013)…..18
4. K I Vibhute, Criminal law(LexisNexsis, Fourteenth Edition,2020)……………19
5. K.D. Gaur, Criminal Law And Criminology(deep and deep publication)………………..13
6. Dr. Paras Diwan, Modern Hindu Law(Allahabad Law Agency, New
Edition,2020)…………………………………………………………………15,16
7. Aqil Ahmad, Mohammedan Law (Central Law Agency, twenty-sixth
Edition,2016)……………………………………………………….…………17,19

STATUTES

1. The Constitution of India,1950………………………………………13,14,18,19,20

2. Hindu Marriage Act,1955 …………………………………………...15,16
3. Hindu Minority and Guardianship Act,1956………………………….15,16
4. Dissolution of Muslim Marriages Act,1939…………………………19
5. Muslim Personal Law (Shariat) Application Act,1937 ……………..19
6. Muslim Women (Protection of Rights on Divorce) Act,1986………19

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 WEB JOURNALS

1. https://www.jstor.org/stable/…………………………………15
2. https://scconline.in.....................................................................13
3. Hindustantimes.com………………………………………………….19
4. Indianexpress.com……………………………………………………20
5. Indiankanoon.com…………………………………………………..20
6. Lawtimesjournal.com………………………………………………16,17,18,20

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 STATEMENT OF JURISDICTION

The Petitioner humbly approaches the Hon’ble supreme court of Indistan by the virtue of Art.
32 of the Constitution of Indistan. As the matter involves determining the extent of fundamental
rights and other Articles provided under Part III of the Constitution of Indistan, the Court is
empowered to hear this case by the virtue of Article 136 of the Constitution of Indistan.

The Petitioner humbly submits to the jurisdiction of the Hon’ble Supreme Court of Indistan.

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 STATEMENT OF FACTS

1. The Indistan is a secular country located in South Asia. In the 1600s, European
countries invaded Indistan, and the Britics controlled most of it by 1856. In the early
1900s,people of Indistan peacefully started to protest against Britics control. Indistan
got its independence in the year 1947. Indistan being the largest democracy in the world
has the lengthiest written constitution and the state owes certain responsibilities towards
all the citizens. Indistan is one of the founding members of the United Nations.
2. Indistan has rich social composition, as many religions have originated in the country
and few religions of foreign origin have also flourished here. Indistan has the distinction
of being the land where various religions have originated. Regional co-existence of
diverse religious groups in the country makes it really unique. Around 80% of Indistanis
are Hindus, 14% Muslims while 2% follow Christianity and remaining 4% follow other
religions since time immemorial. There is no intervention of the State in religious
matters.
3. The Constitution of Indistan provides for freedom of religion as a fundamental right,
to give to its people the freedom of worship and religion and to outlaw discrimination
on the ground of religion. All religions are governed by their personal laws which is
governing marriage, divorce, succession, etc. Religious diversity and religious
tolerance were both established in the country by law & custom.
4. Savi, a Hindu girl of 17 years of age leaves her hometown, Mahuli, a remote village in
the state of Zisar in southern Indistan, to pursue her graduation in a faraway city. She
gets heavily influenced by her classmates and used to visit mosque frequently. One day
she informed her parents that she took Shahada in presence of the Maulana and two
witnesses. Hence, she has converted to Islam and she has obtained the Certificate of
Conversion. She also adopted a new name Noori. Her parents asked her to come back
home. After two days on her 18th birthday she married Suleman. She went home with
her husband. Her parents misbehaved with Suleman and didn’t let her leave home with
Suleman.
5. Noori with the help of “MADADGAR”, NGO dealing with women rights, filed a case
of Habeas Corpus in the High Court of Zisar. Noori’s father alleged that the conversion
of Noori is void as she is a minor. He also alleged that Noori is a victim of ‘love jihad’
and she has been brainwashed to convert in Islam. During the pendency of case in High
Court of Zisar, Suleman was accused of having connections with radical terrorist
group. The High Court of Zisar held the conversion to be void as she is a minor. Hence,
her marriage is also held to be void as this can be as case of brainwashing and an act of
‘love jihad’. Aggrieved by the decision, Noori approached before Supreme Court of
Indistan.
6. Fatima got married in the year 2009 to one Mr. Gustakh and a son was born out of the
said wedlock. All the time when she was at her matrimonial home, she was tortured,
bullied, beaten, and was asked to bring money from her parents’ house. After the

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 repeated tortures, she filed a complaint U/s 498 A of the IPC. Getting infuriated with
this, petitioner’s husband sent a letter giving her ‘Triple Talaq’.
7. Fatima kept on living on the mercy of her parents till she was married for second time
in 2017 to Mr. Sharif, who was already married and had a wife called Nushrat. Fatima
got pregnant second time and soon after birth of her second son, she was given a Talaq
in the Hasan form. Since then, she is living alone with two children. Moved by her own
situation and of many other similarly situated Muslim women throughout Indistan,
Fatima along with “MADADGAR” is before the Supreme Court praying to declare
practices of ‘Polygamy’, ‘Nikah Halala’, ‘Nikah Mutah’; and ‘Nikah Misyar’ as against
the basic rights enshrined under Part III of the Constitution and also against public
order, morality and health.
8. Recently, the Supreme Court of Indistan declared that the practice of instantaneous
Triple Talaq or Talaq -e- Biddat is unconstitutional. Now, "MADADGAR" filed a writ
petition in the Supreme Court of Indistan to declare certain practices as unconstitutional
and violations of Convention on the Elimination of all Forms of Discrimination Against
Wome (CEDAW) and also stated that Muslim Personal Law which enables a Muslim
male to give unilateral Talaq to his wife without her consent and without resort to
judicial process of courts, as void, offending Articles 13. 14 and 15 of the Constitution.
The Supreme Court of Indistan clubbed all the cases and the matters are pending for
hearing.

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 STATEMENT OF ISSUES

1. WHETHER THE PETITIONS ARE MAINTAINABLE NOT?

2. WHETHER THE CONVERSION AND MARRIAGE OF NOORI IS VALID?

3. WHETHER THE PRACTICES OF POLYGAMY; NIKAH HALALA; NIKAH

MUTAH; AND NIKAH MISYAR ARE UNCONSTITUTIONAL?

4. WHETHER THE DISCRIMINATORY PRACTICES UNDER MUSLIM

PERSONAL LAW ARE UNCONSTITUTIONAL?

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 SUMMARY OF ARGUMENTS

1. WHETHER THE PETITIONS ARE MAINTAINABLE OR NOT?

It is humbly submitted by the counsels before the Hon’ble Supreme Court that the writ petitions
are maintainable under Art. 32 as there is violation of fundamental right to life and personal
liberty under Article 21 of the Constitution of Indistan. It is further submitted that the instant
case is of grave public concern therefore it is also maintainable under Article 136 of the
Constitution of Indistan.

2. WHETHER THE CONVERSION AND MARRIAGE OF NOORI IS VALID?

It is humbly submitted by the counsels before the Hon’ble Supreme Court that the conversion
of Noori is valid under Art. 25 of the constitution as it gives right to every individual of the
territory to propagate and practise freedom of religion. And marriage of Noori is valid as it is
fundamental right of Noori to choose partner.

3. WHETHER THE PRACTICES OF POLYGAMY; NIKAH HALALA; NIKAH

MUTAH; AND NIKAH MISYAR ARE UNCONSTITUTIONAL?

It is humbly submitted by the counsel before Hon’ble Supreme Court that the practices of
polygamy; Nikahhalala; Nikahmutah; and nikahmisyar violates Art. 13,14 and 15 of the Indian
constitution and also against the human.

4. WHETHER THE DISCRIMINATORY PRACTICES UNDER MUSLIM

PERSONAL LAW ARE UNCONSTITUTIONAL?

It is humbly submitted by the counsel before Hon’ble Supreme Court that the Muslim Personal
law discriminate at large between women and men which is violation of Art. 13, 15, 21 and
25(1) of the constitution. And their discriminatory practices are unconstitutional.

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 ARGUMENTS ADVANCED

1. WHETHER THE PETITIONS ARE MAINTAINABLE OR NOT?

[¶1] It is humbly submitted by the counsels before the Hon’ble Supreme Court that the writ
petitions are maintainable as there is violation of fundamental right to life and personal liberty
enshrined under Article 21 of the Constitution of Indistan. It is further submitted that the instant
case is of grave public concern 1 so it is humbly submitted by the petitioner that the hon’ble
supreme court has the power to grant special leave under Art. 136 of the constitution of Indistan
and the petition filed by the petitioner is maintainable.

[1.1] That the writ petitions are maintainable under Article 32.

[¶2] There is a right to move the Supreme Court, by appropriate proceedings, for the
enforcement of the Fundamental Rights enumerated in the Constitution2. Right to access the
Supreme Court is a fundamental right 3 . The Supreme Court of Indistan is protector and
guarantor of the Fundamental Rights and play the role of a ‘sentinel on the qui vive’ and they
must always regard it as their solemn duty to protect the said Fundamental Rights ‘zealously
and vigilantly’4.The petitioners humbly submits that the instant petition is maintainable under
Article 32 of the Indistan constitution. This argument is threefold. Firstly the petitioners have
a bona fide interest and hence they have a locus standi [1.1.1]. There is no requirement for the
Petitioner to exhaust local remedies. [1.1.2]

[1.1.1] That the petitionershave a locus standi.

[¶3] “Locus standi” is the right of a party to appear and be heard on the question before any
tribunal. It means the legal capacity to invoke the jurisdiction of the court. The SC has ruled
that to exercise its jurisdiction under Art. 32, it is not necessary that the affected person should
personally approach the court5. The court can itself take cognizance of the matter and proceed
“suo moto” or on a petition of any public spirited individual or body 6.

[¶4] In landmark cases 7 the SC has evolved a new rule viz., any member of the public, acting
bona fide and having sufficient interest can maintain an action for redressal of public wrong or
public injury. In S.P Gupta v. UOI8 the court observed that, “any member of the public having
sufficient interest can maintain an action for judicial redress for public injury arising from
breach of public duty or from violation of some provisions of the Constitution or the law and
seek enforcement of such public duty and observance of such Constitutional or legal

1Indian Constitution, Article 136

2Indian Constitution Article 32 Cl.1; see also, K.D. Gaur, Criminal Law And Criminology, 568 (2002);
3State of Madras v. V.G Row, AIR 1952 SC196
4Prem Chand Garg v. Excise Commissioner U.P, AIR 1963 SC 996
5Smt. Ujjam Bai v. State of U.P, (1963) 1 SCR 778.
6Bodhisattwa Gautam v. Subbra Chakraborty, AIR 722 SC 1996
7S.P Gupta v. UOI, AIR 149, SC 1982; PUDR v. UOI, AIR 1473 SC 1982; Bandhua Mukti Morcha v. UOI,

AIR 802 SC 1986

8AIR 149, SC 1982

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provision”. However, the member of the public should not be a mere busybody or a
meddlesome interloper but one who has sufficient interest in the proceeding 9. In the instant
matter, the petitioners i.e. “Madadgar” have sufficient interest. If the court finds the question
raised to be of substantial public interest, the issue of locus standi of the person placing the
relevant facts and materials before the court becomes irrelevant.10

Therefore, locus standi of the petitioners should not be in question.

[1.1.2] There is no requirement for the Petitioner to exhaust local remedies.

(a) The rule of exhaustion of local remedies is not binding on this Hon'ble Court.

[¶5] Admittedly, cases such as Paul Manickam 11 ,Kanubhai 12 and PN Kumar 13 require the
exhaustion of local remedies before approaching the Court under Art. 32. However, it is
submitted that this Hon'ble court must not be constrained by these decisions for the following
reasons: First, this self-imposed restraint is merely a rule of convenience and discretion and
does not oust the jurisdiction of this Court under Art. 32. 14 Secondly, these cases are per
incuriam as they were rendered in ignorance of previous decisions by higher benches of this
Hon'ble Court that expressly rejected such a rule15. Finally, Art. 32(4) specifically provides
that this right may not be suspended except by a Constitutional provision.16A rule of self-
imposed restraint by the judiciary that requires exhaustion of local remedies constitutes an
extraconstitutional partial suspension and is therefore, unconstitutional.

(b) This Hon'ble Court has a Constitutional duty to entertain the instant petition

[¶6] The Constitutional obligation of this Hon'ble Court as the guarantor of fundamental rights
has been interpreted broadly 17 and as one that exists independent of any other remedy that may
be available.18 This is particularly true in cases of grave public importance,Consequently, it is
submitted that a refusal to entertain the instant petition would be inconsistent with the aforesaid
obligation.19

[1.2] That the writ petitions are maintainable under article 136 of the Constitution of
Indistan

[¶7] It is humbly submitted by the Petitioner that the Hon’ble Supreme Court has the power to
grant special leave under Art.136 of the Constitution of India. The SLP sought under the said

9M.C Mehta v. UOI, AIR 1987 SC 1086.

10
T.N. Godavarman Thirumulkpad v. UOI, , 2006 WPC No. 202 of 1995
11
AIR 1950 Mad 576
12
AIR 1987 1159
13
1988 SCR (1)
14
Mohammed Ishaq v. S. Kazam Pasha, SLP(Crl.) 3209/2008
15
Central Board of Dawoodi Bohra v. State of Mahrashtra and ors., (2005) 2 SCC 673
16
Indian constitution Art.32
17
MC Mehta v. Union of India, AIR 1086 SC 1987
18
Nilabati Behera v. State of Orissa, AIR 1960 SC 1993); Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC
1295.
19
Kharak Singh vs. State of Uttar Pradesh, AIR 1963 SC 129: Romesh Thappar Vs. The State of Madras, AIR
1950 SC 124.

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Art. is certainly maintainable. The opening non-obstante clause of the Art. clearly establishes
that the power of this Court remains unaffected by Arts. 132, 133, 134 and 134(A). Art. 136 of
the Constitution 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 Indistan.” Under Art.136 (1), the Supreme Court is empowered to hear appeal from any
judgment, decree, determination, sentence or order of any tribunal. This feature of the Art. is
of great importance. The Supreme Court may hear appeal even in cases where ordinary law
related to the particular issue makes no provision for such an appeal. The Court may also hear
appeal even where the matter is of grave public concern. In the instant case, grave injustice has
been done to the Appellant. The Appellant humbly seeks remedy from the apex court under
Art. 136. The case of the Petitioner clearly falls within the category of cases, which need the
immediate attention of this apex Court and hence the SLP sought is maintainable.

2. WHETHER THE CONVERSION AND MARRIAGE OF NOORI IS VALID?

[¶8]The constitution of Indistan guarantees to each individual the right freely to practise,
profess, and propagate religion 20. The constitutional framers desired to introduce the concept
of secularism, meaning state neutrality related to the matter of religion 21 , which means to
respect all faith and religion 22 .The state does not identify itself with any particular
religion23Right to religion also include right to convert religion 24.and it is fundamental right of
choice 25 . And under Article 25 of the constitution there is nothing related to minority is
mentioned the right is available for every individual. This argument comprise of twofold. [2.1]
firstly, that the right to convert is a fundamental right of choice. [2.2]Secondly, marriage is
valid and not case of ‘love jihad’.

[2.1] that the right to convert is a fundamental right of choice.

[¶9]Religion means a belief binding the spiritual nature of man to a super natural being 26as
involving a feeling of dependence and responsibility, together with the feelings and practices
which naturally flow from such a belief 27.In Hadiya’s28case the Hon’ble Supreme Court held
that a person's right to choose a religion and marry is an intrinsic part of her
meaningfulexistence. Neither the State nor “patriarchal supremacy” can interfere in her
decision. Freedom of faith is essential to his/her autonomy29; choosing a faith is the substratum
of individuality and sans it, the right of choice becomes a shadow. The Constitution protects
the ability of each individual to pursue a way of life or faith to which he or she seeks to adhere.

20Art.25 (1) the constitution of India.

21Gurtej Singh Vs. Union of India (UOI) and Ors. (1990) 1 ILR Punjab and Haryana 418
22BalPatil &Ors.Vs. UOI & Ors. AIR 2005 SC 3172
23Dr Radhakrishnan, Secularism in India, 127 (ed. VK Sinha 1968).
24Robasakhanum vs. KhodadadBomanjiIrani, AIR 1947 Bom. 272
25ShafinJahan V Asokan K.M. &Ors.AIR 2018 SC 434.
26Naresh Amrita Shah and Ors.Vs. KantilalChunilal Shah and Ors.(2001) 2 ALL MR 379.
27
The new International Webster’s Comprehensive Dictionary of the English Language 1968.
28
ShafinJahan vs. Asokan K.M. &Ors, 2018 SC 434.
29
Nanda kumar&Ors. Vs. State of Kerala &Ors.,(2018) 3 JCC 1858

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[¶10]The Constitution guarantees to each individual the right freely to practice, profess and
propagate religion30. Choices of faith and belief as indeed choices in matters of marriage lies
within an area where individual autonomy is supreme” 31.Art. 25(1) guarantees to every person
“freedom of conscience and right freely to practice, profess religion 32.The freedom to change
religion is expressly recognized under the Article 18 of UDHR. Article 18 of the Covenant on
Civil and Political Rights ensures the right to freedom of thought, conscience and religion.
Matter of belief and faith, including whether to belief are at the core of constitutional liberty,
the Constitution exists for believers as well as for agnostics33.

[2.2] Marriage of Noori is valid and not case of ‘love jihad’.

[¶11]It is humbly submitted before the hon’ble Supreme Court that in landmark judgement of
HadiyaThe term "Love Jihad" was first mentioned in around 2007 in Kerala and neighbouring
Karnataka state, but it became part of the public discourse in 2009. It was originally referred
to as "Romeo Jihad" 34. The State that is expected to facilitate the enjoyment of legal rights of
a citizen has supported the cause of a father, an obstinate one, who has endeavoured immensely
in not allowing his daughter to make her own choice in adhering to a faith and further making
efforts to garrotte her desire to live with the man with whom she has entered into wedlock. The
thought itself is a manifestation of the idea of patriarchal autocracy and possibly self obsession
with the feeling that a female is a chattel 35.

[¶12]The writ of habeas corpus has always been considered ‘a great constitutional privilege’
or ‘the first security of civil liberty’. The writ is meant to provide an expeditious and effective
remedy against illegal detention, for such detention affects the liberty and freedom of the
person who is in confinement. The general purpose of this writ, is to obtain the production of
an individual.In Gian Devi v Superintendent, NariNiketan, Delhi 36 , Bench observed
thatwhere an individual is over eighteen years of age, no fetters could be placed on her choice
on where to reside or about the person with whom she could stay: As the petitioner is sui juris
no fetters can be placed upon her choice of the person with whom she is to stay, nor can any
restriction be imposed regarding the place where she should stay37

[¶13]In Girish v Radhamony38 a two judge Bench of this Court observed thus: In a habeas
corpus petition, all that is required is to find out and produce in court the person who is stated
to be missing. Once the person appeared and she stated that she had gone of her own free will,
the High Court had no further jurisdiction to pass the impugned order in exercise of its writ
jurisdiction under Article 226 of the Constitution.The expression of choice in accordance with
law is acceptance of individual identity. In the case of hadiyaThe Court has underscored that
Hadiya is at liberty to pursue her endeavours in accordance with her desires 39.

30
K.S. Varghese &Ors.Vs. peter’s & Paul’s Syrian Orth. &Ors.(2017) 3 KLT 261.
31
ShafinJahan vs. Asokan K.M. &Ors.(2018) SC 434.
32
Madras bar Association vs. Union of India, AIR 2015 SC 1571.
33
UpsanaChoudary&Ors. Vs. The Director General of Police &Ors., (2005) 10 SCC 704
34
Aljazeera.com
35
ShafinjahanVs.K.M. Ahokan&Ors. AIR 2018 SC 357
36
Delhi (1976) 3 SCC 234.
37Lawtimesjournal.com
38
2009 (16)SCC 360
39
Lawtimesjournal.com

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3. WHETHER THE PRACTICES OF POLYGAMY; NIKAH HALALA; NIKAH
MUTAH; AND NIKAH MISYAR ARE UNCONSTITUTIONAL?

[¶14]It is humbly submitted by the counsel before the hon’ble supreme court that marriage
according to Muslim law, is a contract for the purposes of legislation of intercourse, procreation
of children and regulation of social life in the interest of society 40 .According to justice
Mahmood ‘Marriage among Mohammedan is not a sacrament, but purely a civil contract’ 41 in
case Abdul khadir V. salima.But the practice of polygamy, Nikahhalala, nikahmutah,
nikahmisyar are unconstitutional as they violates Art. 13,14 and 15 of the constitution. This
argument comprise of threefold. [3.1] the practice of polygamy is unconstitutional as it do
injustice to Muslim women. [3.2]the practice of nikahhalala is against the fundamental right of
women. [3.3] nikahmutah and nikahmisyar are unconstitutional practice in islam as it against
the Art. 25(1) of the indian constitution.

[3.1] the practice of polygamy is unconstitutional as it do injustice to Muslim women.

[¶15]It is humbly submitted before the hon’ble Supreme Court that the practice of polygamy
which meansUnder Islamic jurisprudence, men are permitted, under specific circumstances, to
marry up to four wives at one time. Islamic law states that a man can marry more than one
womanwhile Polyandry, the practice where a woman can have more than one husband, is not
permissible42. This practice is injustice to Muslim women. Hinduism also after finding Sati
Pratharegressive removed it from the religion. Sati was also practiced widespread and
practiced since time immemorialand at the right time court stop the practice as it was injustice
to women mentioned in the case shayrabano V. union of india 43 . Already the hon’ble
Supreme Court in their previous judgement themselves overruled triple talaq and talaq-e-bidat
considering them unconstitutional as with the time coming it was required.Beyond the
fundamental arguments against the ideology behind polygyny, in practice it is negative and
oppressive experience for women. Although the Qur'dn requires that a man treat his wives
equally, Islamic law considers this mandate a moral issue to be judged by Allah 44."' Thus,
without an external measurement of equality, there is no real enforcement of that principle45.
Furthermore, in many cases the first wife is unable to object to the husband's taking additional
wives, or in some cases, concubines 46. The wives are often jealous of one another, not simply
for their husband's love and attention, but also on behalf of their children 47. This jealousy erupts
into perpetual fighting. Polygyny may only work in the context where a woman requires
nothing but sustenance; a man might be able to handle the sexual desires of multiple women,
but not their emotional needs.

40
Aqil Ahmed (mohammedan law) 26th edition 108
41
(1886) 8 AII. 149 at 154
42
Hindustantimes.com
43
(2017) SCC 1
44Noel Coulson & Doreen Hinchcliffe, Women and Law Reform in Contemporary Islam, in WOMEN IN THE

MUSLIM WORLD 37,40 (Lois Beck & Nikki Keddie eds., 1978).
45
Scholarship.law.wm.du
46
WALTER M. GALLICHAN, WOMEN UNDER POLYGAMY 39 (1915).
47
MAZHAR UL HAQ KHAN, PURDAH AND POLYGAMY: A STUDY IN THE SOCIAL PATHOLOGY
OF THE MUSLIM SOCIETY 90 (1972).

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[3.2] the practice of NikahHalala is against the fundamental rights for women under
Art. 14 of the constitution.

[¶16]It is humbly submitted before the hon’ble Supreme Court that Islamic law says that a
Muslim man can divorce and remarry the same woman twice. However, if the marriage is
dissolved for the third time, it will only be ‘halal’ for both to remarry after the wife first marries
another man, consummates the marriage and if the other man willingly divorces her or dies 48.
While Art. 14 of the Indian constitution states that ‘the state shall not deny to any person
equality before the law or the equal protection of the laws within the territory of India’ 49.But
through the practice of NikahHalala Muslim womens fundamental right of equlity before law
gets violated.

[¶17]As more and more human rights disappear under the pressure of mounting fanaticism and
traditionalism in many areas of the Muslim world 50 , the practice of halalais construed as
extremely heinous and offensive to the honor of both the man and woman 51. The manner in
which this practice has been constructed in the contemporary situation is nothing but a ghoulish
glimpse at the Islamic state’s duty to rape in the name of religion. It is a practice which is
institutionalizing the degradation of women in the garb of religion. Indeed, it will be a travesty
of Islamic religion, if the former husband post the inadvertent pronouncement of irrevocable
talaq, after realisation of his mistake of abandoning his wife, is allowed to stage manage a
second marriage of his divorced wife solely to legitimize his remarriage with her. Such
postulation of the purpose behind ‘Halal-a’ in the Holy Quran is implausible and reduces a
women to a piece of amusement who can be deserted through alacritous utterances of Talaqand
be bartered after a one-night stand with some stranger sifted out specifically for this purpose.
It is difficult to ascertain what a woman goes through emotionally, spiritually and physically
in such a scenario 52. The Caliph Omar and Abdullah bin Omar regarded such marriages as
adultery53.Appropriately, a codified law imposing a ban on this practice can remarkably leash
out the despondency faced by women in the name of NikahHalala.

[3.3] NikahMutah and NikahMisyar are unconstitutional as it is against the Art. 25(1) of
Indian constitution

[¶18]It is humbly submitted before the honourable Supreme Court that as Indian constitution
in its part IV which talks about fundamental rights of individual in its Art. 25(1) states that
subject to public order, morality and health and to other provisions of this part, all persons are
equally entitled to freedom of conscience and the right freely to profess, practise and propagate

48
Hindustantimes.com
49
V.n.Shukla (constitution of india) 13th edition
50
Riffat Hassan, On Human Rights and The Qur'anic Perspective available at http://riffathassan.info/wp-content
51
Pirzada S, Divorce in days of Ignorance, Triple Talaq- In The Light of Quran and Sunnah, available at
http://www.islamicstudies.info/literature/triple-talaq.pdf,
52
International journal of advance research and development
53
ZafarIqbalKalanauri, Marriage, Divorce and Re-Marriage Halala in Islam

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religion54. But the practice of these kind of action on the name of freedom of religion is against
the subject to public order and morality.

[¶19]NikahMutah refers to a type of temporary marriage practiced by certain sects within Shia
Islam where both parties agree to a private and verbal marriage contract, agreeing to the
duration of marriage and the mehr amount. There is no stipulated time for the duration of the
‘marriage’ – it can last from a few minutes to months. At the end of the contract, the wife must
observe a period of abstinence known as iddah55.NikahMutah was known as the ‘traveller’s
marriage’ where men who went on long journeys or wars “married” women they were sleeping
with. Many Islamic scholars view NikahMutah as prostitution 56. There is no minimum time for
duration of ofmuta marriage. Where conabitation continues beyond the specified period for
which muta marriage was contracted 57, it has been held in shoharatsingh v. jafribibi58.59

4. WHETHER THE DISCRIMINATORY PRACTICES UNDER MUSLIM

PERSONAL LAW ARE UNCONSTITUTIONAL?

[¶20]It is humbly submitted before the honourable Supreme Court that the discriminatory
practices under Muslim personal law are violation of Art. 13,14,15,21 and 25(a) of part IV of
Indian constitution and therefore it is unconstitutional. The status of Muslim women under the
so- called customary law is simply disgraceful. All the Muslim women organisations have
therefore condemned the customary law as it adversaly affect their rights60. This argument is
comprise of twofold. Firstly [4.1] discrimination with women under Muslim personal
law(shariat) and under dissolution of Muslim marriage Act, 1939. Secondly [4.2] violation of
Art. 13,14,15,21 and 25(a) of the indian constitution through discriminatory practices under
Muslim personal law.

[4.1] discrimination with women under muslim personal law(shariat) and under
dissolution of Muslim marriage Act, 1939

[¶21]It is humbly submitted before the honourable Supreme Court that under the right to
freedom of religion some Muslim personal law practices discrimination with womens and
made Muslim women status at a very disgraceful position. One of the major Act of Muslim
personal law Dissolution of Muslim marriage Act, 1939 under section 2 of it talks about the
ground on which a Muslim women can obtain decree of dissolution of marriage 61 but in the
whole provision nowhere mentioned about the grounds for men to obtain a decree for
dissolution of their marriage they can demand divorce from their wives whenever they feel to
do so.

54
Constitution of India,1950
55
Hindustantimes.com
56
Hindustantimes.com
57
Aqil Ahmed (Mohammedan law) 26th edition 140
58
(1915) 17 BOMLR 13
59
Luddunsahiba v. Mirzakamar, ILR 8 Cal. 736
60
Muslim personal law(shariat) application Act, 1937
61
The dissolution of Muslim marriage Act, 1939

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[¶22]Polygamy is one of the major practice of Muslim personal law which allows men to have
four wives at a time but a women is not allowed to have two husbands. Under sunni law of
Muslim personal law a male may marry a non- Muslim kitabia female but a female can not.
The one of the famous landmark judgement of SC of India SahBano case62where the prayers
put before the supreme court for the discrimination with women where SC upheld the right to
alimony in the case, the judgment set off a political battle as well as a controversy about the
extent to which courts can interfere in Muslim personal law. The case laid the ground for
Muslim women’s fight for equal rights in matters of marriage and divorce in regular courts, the
most recent example being the ShayaraBano case63 in which the Supreme Court invalidated
the practice of instant triple talaq64.

[4.2] violation of Art. 13,14,15,21 and 25(a) of the Indian constitution through
discriminatory practices under Muslim personal law
[¶23]It is humbly submitted before hon’blesupreme court that part IV of the Indian constitution
talks about the fundamental rights of the citizen of country. Under Art. 14 it grants equality
before law for every citizen of country irrespective of their caste, religion, sex, or place of birth.
And Art.21 talks about the personal liberty of the citizen and Art. 25(a) says with subject to
public morality every citizen has freedom to propagate and practice their religion 65 . But
Muslim personal law violates these principles of fundamental rights with their discriminatory
so called customary law.

[¶24]In a caseSahid Azad v. Union of India 66 the petition made under Art. 226 of the
Constitution of India is made to the Muslim Women (Protection of Rights on Marriage)
Ordinance, 2018 and a mandamus is sought to declare the entire ordinance as ultra vires the
Constitution. The petitioner claiming to be a practicing advocate has approached this Court to
challenge the ordinance in question on the ground that it adversely affects his fundamental
rights besides affecting the rights of citizens of this country, the ordinance runs contrary to the
shared belief, practice and tradition of Islam, is discriminatory in nature and, therefore, should
be declared as ultra vires 67.

[¶25]the provisions of Hindu Law and Mahomedan Law, which allowed polygamy for the
males but provided strict monogamy for the females, were violative of the provisions of
equality and non-discrimination on the ground of sex as contained in Article 14 and Article 15
of the Constitution and therefore the relevant provisions of the personal laws of both the Hindus
and the Mahomedans became void and inoperative from the commencement of the
Constitution68 as prayer it was put before the honourable high court.

[¶26]Coming to the recent judgment of the Supreme Court in the case of ShayaraBano v.
Union of India69. 316, the Hon’ble Apex Court had declared the practice of talaq-e-biddat

62Mohd. Ahmed Khan v. Shah Bano Begum and others (1985) AIR 945
63
Shafinjahan v. K.M. Ashokan&Ors. AIR 2018 SC 357
64
Indianexpress.com
65
Indian constitution Act,1950
66
Shayarabano v. union of india&Ors. (2017) 9 SCC 1
67
Indiankanoon.com
68State of Bombay v. Narasuappa Mali, AIR 1952 BOM 84
69
(2017) 9 SCC 1

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(Triple Talaq) as ‘unconstitutional’. The judgement is made up of three separate opinions: one
by ChiefJustice J.S. Kehar and Justice S. Abdul Nazeer; one by Justice Kurian Thomas and
one by Justice Rohinton F. Nariman and Justice Uday U. Lalit. The three judgements concur
on some issues and differ on others. This makes the task of figuring out the judgement’s exact
holding a difficult and confusing exercise. What is more, even with a five-judge bench decision,
the constitutional status of personal law remains as uncertain as before, which makes the
prospects of any future attempt to change discriminatory personal law provisions by
challenging their constitutional validity, difficult. In this case the Constitutional bench headed
by Chief Justice J.S.Kehar had clubbed seven petitions including five separate writ petitions
filed by Muslim women, challenging the practice of talaq-e-biddat prevalent in the community
and terming it unconstitutional70.

70
Sg.inflibnet.ac.in

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 PRAYER

Wherefore in the light of the issues raised, argument advanced and authorities cited, it is
humbly prayed that this Hon’ble Court may be pleased to adjudge and declare:

1. That the writ petition is maintainable.

2. That the conversion is fundamental right of choice.

3. That marriage cannot be dissolved by the party on the ground of his/her conversion.

4. That the Practices of polygamy; Nikah Halala; Nikah Mutah; and Nikah Misyar Are
unconstitutional.

5. That the discriminatory practices under Muslim Personal Law are Unconstitutional.

And Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests of
Justice, Fairness, Equity and Good Conscience.

For This Act of Kindness, the Shall Forever Pray.

COUNSELS FOR THE PETITIONER

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