MEMORANDUM ON BEHALF OF THE RESPONDENT

ADV. T. P. ARAVINDAKSHAN MEMORIAL

R
ALL INDIA MOOT COURT COMPETITION – 2023

BEFORE THE HONOURABLE SUPREME COURT OF INDOS

WRIT PETITION FILED UNDER

ARTICLE 32 AND 139A OF THE CONSTITUTION OF INDOS

Writ Petition No: ………….. /2023

Sheikh Khan Sahab Trust .......................................................................................Petitioner 1

Ahmed.....................................................................................................................Petitioner 2

Ramla......................................................................................................................Petitioner 3

Versus

Union of Indos……………………………………………………………………………Respondent

MEMORANDUM ON BEHALF OF THE RESPONDENT

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TABLE OF CONTENTS

SL.NO. TITLE PAGE NO.

1. LIST OF ABBREVIATIONS 4-5

2. INDEX OF AUTHORITIES 6

A. Cases Referred 6

B. Reports, Journals, Articles and Other Sources 6

C. Statutes Referred 6

D. International Conventions 7

3. STATEMENT OF JURISDICTION 8

4. STATEMENT OF FACTS 9 - 10

5. STATEMENT OF ISSUES 11

6. SUMMARY OF ARGUMENTS 12 - 13

7. ARGUMENTS ADVANCED 14

ISSUE I – THE WRIT PETITION IS NOT MAINTAINABLE 14

A. NOT IN AMBIT OF ARTICLE 32 14 - 15

B. ARTICLE 139A CANNOT BE INVOKED 15

ISSUE II - THE MUSLIM WOMEN (PROTECTION OF 15 - 19

RIGHTS ON MARRIAGE) ACT, 2019 IS CONSTITUTIONAL
ISSUE III - CONSTITUTIONALITY OF SECTION 15 OF THE 19 - 25
SPECIAL MARRIAGE ACT, 1954

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8. PRAYER 26

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LIST OF ABBREVIATIONS

SL.NO. ABBREVIATION EXPANSION

1. AIR All India Reporter
2. Art. Article
3. CEDAW The Convention on the Elimination of All Forms of
Discrimination Against Women
4. CrPC Code of Criminal Procedure, 1973
5. DPSP Directive Principles of State Policy
6. Govt. Government
7. HC High Court
8. Hon’ble Honourable
9. i.e. that is
10. J. Justice
11. Ker Kerala
12. KLT Kerala Law Times

13. Mr. Mister

14. Ms. Miss

15. No. Number
16. Para Paragraph

17. SC Supreme Court

18. SCC Supreme Court Cases
19. SMA Special Marriage Act, 1954

20. sub in silence

21. UOI Union Of India

22. U.P Uttar Pradesh

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23. Vs. Versus

24. W.P. Writ Petition

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INDEX OF AUTHORITIES

A. CASES REFERED

1. Deepak Krishna vs. District Registrar, Ernakulam, AIR 2007 Ker 257.
2. Giby George vs. Marriage Officer, 2007 (2) KLT 270.
3. John Roji vs. Marriage Officer, 2004(1) KLT 687.
4. Latha singh vs. state of U.P, (2006) 5 SCC 475.
5. Shafin Jahan vs. Asokan K.M, (2018) 16 SCC 368.
6. Shaya Bano vs. Union of India, (2017) 9 SCC 1.
7.Sidharth Swaminathan vs. Sub registrar Kottayam, AIR 2014 Ker 1957.
8. Y. John Lukose & Anr. Vs. The District Registrar, 2007 (1) KLT 247.
9. State of Karnataka v. Sharanappa Basanagouda Aregoudar, AIR 2002 SC 1529.
10. State of Madhya Pradesh v. Munna Choubey & Anr., (2005) 2 SCC 710.
11.Vimal Ramachandran vs. Marriage Officer, WP(C) 10189/2004.

B. REPORTS/ JOURNALS/ ARTICLES REFERED

1. Sir D H Mulla, “Principles of Mohammedan Law”, Lexis Nexis India (1906).

2. THE NEWS MINUTE, https://www.thenewsminute.com/article/why-shukkur-muslim-actor-

kerala-marrying-his-wife-again-women-s-day-174194.

3. LEGAL VIDHIYA, https://legalvidhiya.com/the-effectiveness-of-the-new-muslim-women-protection-

of-rights-on-marriage-act/.

C. STATUTES

1. Constitution of India, 1949

2. The Muslim Personal Law (shariat) Application Act, 1937

3. The Muslim Women (Protection of Rights on Marriage) Act, 2019

4. Special Marriage Act, 1954

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D. INTERNATIONAL CONVENTIONS

1. The Convention on the Elimination of all Forms of Discrimination Against Women

(CEDAW), 1979

2. International Covenant on Civil and Political Rights (ICCPR), 1966

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STATEMENT OF JURISDICTION

TO THE EXTENT OF ANSWERING THE QUESTIONS RAISED BY THE

PETITIONER, THE HONOURABLE SUPREME COURT OF INDOS IS PRESUMED
TO HAVE JURISDICTION TO HEAR THE MATTER UNDER ARTICLE 32 AND 139A
OF THE CONSTITUTION OF INDOS, 1949 AND THE RESPONDENTS HAVE THE
HONOUR TO SUBMIT BEFORE THIS HONOURABLE SUPREME COURT THE
MEMORANDUM ON BEHALF OF THE RESPODENT.

THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS AND

ARGUMENTS IN THE PRESENT CASE

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STATEMENT OF FACTS

Union of Indos is a Sovereign, Socialist, Secular, Democratic, Federal Republic and the
Constitution provides for securing to all its citizens justice, liberty, equality, and fraternity. It is a
Secular state that limits state intervention in religion to economic, financial, political and other
secular activities, strictly based on ideals enshrined in constitution. Indos is also a member of the
United Nations and has ratified UN conventions such as CEDAW and ICCPR.

Deogarh is a state in Indos. Mr. Ahmed and Ms. Ramla are citizens of Indos having domicile in
the Erramanzil district of Deogarh. Both of them practice and follow Islam. They got married in
accordance with Mohammedan law on 15.06.2005. Both of them live in a joint family along with
Ahmed’s parents, two sisters and four brothers. The couple was blessed with two daughters Zia
and Mehar who were born in 2007 and 2010 respectively.

Ahmed runs a dry fruit outlet at Erramanzil. His profound interest in expanding his dry fruits
business made him meet one Ms. Zara, a Mohammedan who is the daughter of a wealthy
merchant in UAE. Over the period of time, Ahmed and Zara fell in love and got married in
accordance with Mohammedan law on 10.02.2016.

Zara was a widow and had a son named Khalid with her deceased husband. Ramla and Ahmed’s
family were hesitant to accept Zara and her son into their family. However, over a period of time,
both of them were accepted by Ramla, Zia, Mehar and other family members as well. Both Zara
and Ahmed were blessed with a daughter with a daughter named Barkat in the year 2018.

In February 2020, Mr. Zain Abdullah transferred a share of his business worth an estimated
value of about seventy-five crores in favour of his daughter Zara. In addition to that Zara
expressed her willingness to appoint Ahmed as the managing director of Zain’s company and
transfer twenty-five percent of the equity in Ahmed’s name. Zara and Ahmed had a lot of
discussions about the future and the prospects of inheritance. She expressed Zain’s concern
regarding the assets of his family being transferred to others than his children and grandchildren.

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Ahmed maybe parting with more of Zain’s asset, if these concerns are addressed. For Ahmed,
both Zara and the fortune in the footstep were something which he could not deny.

On 15.03.2020, Ahmed pronounced Talaq to Ramla. She along with her children were sent to the
property which Ahmed had purchased in Ramla’s name. A few properties worth ten crores were
also transferred in favour of Ramla and his daughters.

On 01.09.2020, Ahmed and Zara made an application before the Marriage Officer at Erramanzil
for registration of their marriage under the provisions of the Special Marriage Act, 1954. On
05.09.2020, Ramla filed a complaint before the Police in accordance with the provisions of The
Muslim Women (Protection of Rights on Marriage) Act, 2019. Ahmed was arrested and
remanded in the judicial custody.

Ramla objected to the registration of marriage under the SMA by Ahmed and Zara. She filed an
objection before the Marriage Officer contenting that the condition for registration under the
relevant provision of the Act, as not been satisfied in the instant case. Accordingly, the Marriage
Officer refused to register the marriage. Meanwhile, Ahmed was released on bail by the
Magistrate Court after hearing Ramla. Ahmed preferred an appeal against the order of the
Marriage Officer refusing to register the marriage before the Erramanzil District Court.

The District Court allowed the appeal and directed the Marriage Officer to register the marriage
between Ahmed and Zara according to the Act. Ahmed approached the Hon’ble High Court
Deogarh challenging the Muslim Women (Protection of Rights on Marriage) Act, 2019 and the
case made against him. Ramla also filed a petition before the Hon’ble High Court of Deogarh
challenging the provisions of this SMA. Ramla contended that the SMA by enabling marriage
between already married couple under Personal Laws is arbitrary and is not keeping the Personal
Law and SMA on the same footing with respect to registration of marriage. It also enables
misuse of the SMA for personal gains. The High Court decided to hear both the cases together.

Meanwhile there was a case relating to the constitutionality of Section 15 of the SMA which was
filed by Sheikh Khan Sahab Trust before the Hon’ble Supreme Court of Indos. Therefore, the
Supreme Court directed all the High Courts to transfer the pending cases before them n relation
to this issue. Accordingly, the Deogarh High court transferred both cases before this Hon’ble
Supreme Court.

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STATEMENT OF ISSUES

I. WHETHER THE WRIT PETITIONS CHALLENGING THE CONSTITUTIONALITY

OF THE FOLLWING ACTS ARE MAINTAINABLE:

A. THE MUSLIM WOMEN (PROTECTION OFNRIGHTS ON MARRIAGE) ACT, 2019;

B. THE SPECIAL MARRIAGE ACT, 1954?

II. WHETHER THE MUSLIM (PROTECTION OFNRIGHTS ON MARRIAGE) ACT,

2019 IS CONSTITUTIONALLY VALID?

III. WHETHER THE PROVISIONS OF THE SPECIAL MARRIAGE, 1954 IS

VIOLATIVE OF FUNDAMENTAL RIGHTS?

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SUMMARY OF ARGUMENTS

ISSUE I – THE WRIT PETITION IS NOT MAINTAINABLE

Muslim Women (Protection of Rights on Marriage) Act, 2019 is a progressive measure to ensure
gender equality, protection from gender discrimination and right to dignified life. Therefore, this
enactment is protecting the Fundamental Rights of the people and is not violative of the same.
Therefore, it is unreasonable to challenge this Act. The Special Marriage Act, 1954 is not
violative of Article 14, 21 and 25 of the Constitution of Indos and there is no need to declare it as
unconstitutional. The Muslim Women (Protection of Rights on Marriage) Act, 2019 has
introduced penal legislations, specific to a class of persons based on religious identity. It is not a
problem of the country at large. The Petitioner No. 3 has no locus standi in the case. Therefore
the petition should be dismissed. Hence, it cannot be included in the ambit of Article 32 and
139A of the Constitution.

ISSUE II – THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE)

ACT, 2019 IS CONSTITUTIONAL
The Muslim Women (Protection of Rights on Marriage) Act, 2019 is constitutional. The Act is a
step to ensure the preambular visions of equality and justice. It protects women from
discrimination. Thereby it enhances the objectives of Article 14, 15 and 21 and in consistent with
these constitutional provisions. The enactment is really helpful to create awareness among
people especially among the women. Thus it will empower the women to complaint and seek
remedies. Based on an apex court pronouncement, no one can file complaint regarding the
incidence of triple talaq. They can do only on the basis of legal enforcement. This Act is enacted
for this purpose.

Moreover, this is a legislation which prohibits discrimination on women. The women to whom
the talaq was pronounced were suffered a lot. Simply saying the word talaq thrice to a woman,
even without her presence, the divorce was sanctioned. This evil practice derogated the dignity
of women and highly discriminative in nature. The said Act is a remedy for these issues and
protective from discrimination.

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ISSUE III – CONSTITUTIONALITY OF SECTION 15 OF THE SPECIAL MARRIAGE

ACT, 1954
The only object of the SMA is to introduce a mechanism through which couples who have
already married under Personal laws can get a marriage certificate, which can be used for legal
purpose. Personal laws are different and the marriage certificate obtained under Personal laws
might be different as they have different format having certain religious terms. In order to ratify
all such obstacles, this act provides to get a legally authorized certificate having a uniform format
that can be easily accepted by the authorities of our country and as well as other countries.

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ARGUMENTS ADVANCED

ISSUE I – THE WRIT PETITION IS NOT MAINTAINABLE

It is humbly submitted before the Hon’ble Supreme Court of Indos that the Writ Petition filed
under Article 321 and 139A2 of the Constitution by the petitioner cannot be admitted since the
question of law put forth in the petition is not violative of Fundamental and Constitutional Rights
of a class of people.

By way of the present petition under Article 32 and 139A, the petitioners challenge the
Constitutionality of Muslim Women (Protection of Rights on Marriage) Act, 20193 and Section
154 of the Special Marriage Act, 19545. Section 1(3)6 of the Muslim Women (Protection of
Rights on Marriage) Act, 2019 says that, it shall be deemed to have come into force on the 19th
day of September, 2018. It is submitted that this Act provides protection of Article 147, 158 And
219 of the Constitution of Indos. This enactment is a progressive measure to ensure gender
equality, protection from gender discrimination and right to dignified life. Therefore, this
enactment is protecting the Fundamental Rights of the people and is not violative of the same.
Therefore, it is unreasonable to challenge this Act. Section 1(3) of the Special Marriage Act,
1954 says that it shall come into force on such dates as the Central Govt. may, by notification in
the official gazette, appoint. Thus, it came into force on 9th October, 1954. It is submitted that
this Act is not violative of Article 14, 21 and 2510 of the Constitution of Indos and there is no
need to declare it as unconstitutional.

A. NOT IN AMBIT OF ARTICLE 32

1
INDIA CONST. art. 32.
2
INDIA CONST. art. 139A.
3
Muslim Women (Protection of Rights on Marriage) Act, 2019, No. 20, Acts of Parliament, 2019 (India).
4
The Special Marriage Act, 1954, § 15, No. 43, Acts of Parliament, 1954 (India).
5
The Special Marriage Act, 1954, No. 43, Acts of Parliament, 1954 (India).
6
Muslim Women (Protection of Rights on Marriage) Act, 2019, § 1(3), No. 20, Acts of Parliament, 2019 (India).
7
INDIAN CONST. art. 14.
8
INDIAN CONST. art. 15.
9
INDIAN CONST. art. 21.
10
INDIAN CONST. art. 25.

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It is respectfully submitted that the exercise of jurisdiction under Article 32 is not warranted in
this case for the following reasons:

The Muslim Women (Protection of Rights on Marriage) Act, 2019 has introduced penal
legislations, specific to a class of persons based on religious identity. It is not a problem of the
country at large.

The Act is not violative of any fundamental rights and therefore, there is no hope to invoke
Article 32 and it’s not in the ambit of the jurisdiction of the Supreme Court Indos.

As per the petitioner’s standing is concern, Petitioner No. 1, Sheikh Khan Sahab Trust, an
organisation, who challenged the Special Marriage Act, 1954, in the writ petition. The
organisation has no locus standi in the case. Therefore the petition should be dismissed.

Here, Petitioner No. 2 is a man practicing Muslim, who is a citizen of Indos and who was
affected by the penal provisions of the Muslim women (Protection of Rights on Marriage) Act,
2019 and Petitioner No. 3 is a woman practicing Islam, who is a citizen of Indos and she is an
affected party in a case where the SMA provisions had been misused for personal gains. The
cases filed by Petitioner no 2 & 3 are purely based on their personal matters and therefore does
not falls under the purview of Article 32 . Therefore, Article 32 can’t be invoked in this matter.

B. ARTICLE 139A CANNOT BE INVOKED

The writ petitions of Petitioner No. 2 and 3 can’t be transferred by the High court of Degarh to
the Supreme Court of Indos because both the cases of the petitioners are purely personal in
nature and the powers of article 139A cannot be invoked in their case.

ISSUE II – THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE)

ACT, 2019 IS CONSTITUTIONAL
The aim of this enactment is to protect the rights of the underpowered female section of the
society. ‘Triple talaq’ is a practice that is considered as irregular and bad in theology, but it has
been continued from centuries and the Muslim women became helpless as the talaq can be
pronounced easily without their will/consent. The Act at one place empowers the women, who
are not empowered and at the other instance, the women are left with nothing.

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It is humbly submitted before the Hon’ble Supreme Court that the Muslim Women (Protection of
Rights on Marriage) Act, 2019 is constitutional. The Act is a step to ensure the preambular
visions of equality and justice. It protects women from discrimination. Thereby it enhances the
objectives of Article 14, 15 and 21 and in consistent with these constitutional provisions.

The Hon’ble Supreme Court had already held in Shayara Bano vs. Union of India11, that the
pronouncement of ‘triple talaq’ was null and void. The said legislation provides a legal
protection to this pronouncement. The enactment is really helpful to create awareness among
people especially among the women. Thus it will empower the women to complaint and seek
remedies. Based on an apex court pronouncement, no one can file complaint regarding the
incidence of triple talaq. They can do only on the basis of legal enforcement. This Act is enacted
for this purpose.

Moreover this enactment is helpful to increase the trust of citizens especially of women in the
democracy and judicial system of the country. This Act is also ensuring maintenance for
divorced muslim women. The Shayara Bano case revolves around the issue of maintenance for
Shayara Bano. She sought maintenance from her husband under Section 125 12 of the Code of
Criminal Procedure13. The case brought attention to the lack of clear provisions for maintenance
in Muslim personal law. In this case the court held that Section 125 of Code of Criminal
Procedure solicited to Muslims too, without any sought of discrimination. Supreme Court in this
case duly held that, since responsibility of Muslim husband towards her divorced wife is limited
to the extent of “Iddat" period , even though this situation does not contemplates the rule of law
that is mentioned in Section 125 of CrPC,1973. According to Supreme Court this rule according
to Muslim Law was against humanity or was wrong because here a divorced wife was not in a
condition to maintain herself. When wife is not able in a condition to finance or maintain her
after the “Iddat” period, she will be entitled to receive maintenance or alimony under Section 125
of CrPC.

The said Act brought a legal provision for seeking maintenance.

11
Shayara Bano vs. Union of India, (2017) 9 SCC 1.
12
Code of Criminal Procedure, 1973, §125, No. 2, Acts of Parliament, 1973 (India).
13
Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1973 (India).

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Moreover, this is a legislation which prohibits discrimination on women. The women to whom
the talaq was pronounced were suffered a lot. Simply saying the word talaq thrice to a woman,
even without her presence, the divorce was sanctioned. This evil practice derogated the dignity
of women and highly discriminative in nature. The said Act is a remedy for these issues and
protective from discrimination.

The Section 414 of the Act imposes a maximum sentence of three years Imprisonment when a
Muslim husband pronounces ‘triple talaq’ and the offence is cognizable and Non-bailable as per
section 715. This is not arbitrary in nature. But it is aimed to create deterrence towards the
practice of triple talaq. Triple talaq was very prevalent in the society. Only the pronouncement of
the Honorable court cannot eradicate the evil from society. For that purpose an enactment and
stringent punishment are necessary.

The Supreme Court in State of Karnataka v. Sharanappa Basanagouda Aregoudar 16 rightly

stated that:

“The sentence imposed by the court should act as a deterrent on potential offenders and should
be commensurate with the seriousness of the crime. Of course, when it comes to sentencing,
courts have the discretion to assess a broad and diverse range of facts that may be relevant for
fixing the quantum of sentence, but that discretion must be exercised with due regard to the
wider interests of society, and needless to say, passing of sentence is probably the most public
face of the criminal justice system. Courts have been reminded of the need to have punishments
having a deterrent effect, especially for certain categories of crimes."

In State of Madhya Pradesh v. Munna Choubey & Anr17., the Supreme Court emphasised that
"The social impact of crime, such as crimes against women, fraud, kidnapping, embezzlement of
public funds, treason, and other crimes of moral corruption, or crimes that have a major impact
on social order and public interests, cannot be ignored, and per se require exemplary treatment.
Any stance that imposes meager penalties or over-benevolent view because of a lapse of time in
respect of such offences will be counterproductive in the long run and against societal interests

14
Muslim Women (Protection of Rights on Marriage) Act, 2019, § 4, No. 20,Acts of Parliament, 2019 (India).
15
Muslim Women (Protection of Rights on Marriage) Act, 2019, § 7, No. 20,Acts of Parliament, 2019 (India).
16
State of Karnataka v. Sharanappa Basanagouda Aregoudar, AIR 2002 SC 1529.
17
State of Madhya Pradesh v. Munna Choubey & Anr., (2005) 2 SCC 710.

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that need to be cared for and strengthened by a string of deterrents inbuilt in the sentencing
system."

According to the National Commission for Women, the Act has been successful in reducing the
incidence of instant ‘triple talaq’, with fewer cases being reported since its implementation 18.

Then, there is no any division enabled by section 5 19 and 620 impose upon women those who
have and have not been told the three words of talaq. This Act completely prohibits the practice
of ‘triple talaq’ and provides for punishment. Then there remain only the women, who have not
been told the three words of talaq.

Besides, the parliament is empowered to make legislations for the welfare of the society and
especially for protecting vulnerable sections. Thus this Act provides the protection of women.
The principle of gender equality is enshrined in the Indian Constitution in its Preamble,
Fundamental Rights, Fundamental Duties and Directive Principles. The Constitution not only
grants equality to women, but also empowers the State to adopt measures of positive
discrimination in favour of women. Within the framework of a democratic polity, our laws,
development policies, Plans and programmes have aimed at women’s advancement in different
spheres. Gender equality includes protection from sexual harassment and right to work with
dignity which is a universally recognized basic human right. The Constitution of India not only
grants equality to women but also empowers the State to adopt measures of positive
discrimination in favour of women for neutralizing the cumulative socio economic, education
and political disadvantages faced by them. Fundamental Rights, among others, ensure equality
before the law and equal protection of law; prohibits discrimination against any citizen on
grounds of religion, race, caste, sex or place of birth, and guarantee equality of opportunity to all
citizens in matters relating to employment. Articles 14, 15, 15(3)21, 1622, 39(a)23, 39(b)24, 39(c)25

18
LEGAL VIDHIYA, https://legalvidhiya.com/the-effectiveness-of-the-new-muslim-women-protection-of-rights-
on-marriage-act/ (last visited July 21, 2023).
19
Muslim Women (Protection of Rights on Marriage) Act, 2019, § 5, No. 20,Acts of Parliament, 2019 (India).
20
Muslim Women (Protection of Rights on Marriage) Act, 2019, § 6, No. 20,Acts of Parliament, 2019 (India).
21
INDIAN CONST. art. 15(3).
22
INDIAN CONST. art. 16.
23
INDIAN CONST. art. 39(a).
24
INDIAN CONST. art. 39(b).
25
INDIAN CONST. art. 39(c).

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and 4226 of the Constitution are of special importance in this regard. Thus the parliament is
empowered to enact laws to protect the women.

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 27
is often described as the international bill of rights for women, and is one of the key international
agreements that guides the work of UN Women in achieving gender equality and empowering all
women and girls. Indos has ratified CEDAW.

Article 16 of CEDAW directs “States Parties shall take all appropriate measures to eliminate
discrimination against women in all matters relating to marriage and family relations and shall
ensure equal rights to enter marriage, to choose a spouse, to enter marriage only with full
consent, the same rights and responsibilities within marriage and in divorce, the same rights and
responsibilities as parents, the same rights to decide on the number and spacing of children, the
same rights with regard to ownership of property. A minimum age shall be set for marriage.”

Thus, the council humbly submits that the parliament is obliged to make such enactment that
eliminates the discrimination upon women.

Therefore, it is submitted that the Muslim Women (Protection of Rights on Marriage) Act, 2019
is a fair, just and reasonable enactment that ensures equality and justice and purely constitutional

ISSUE III – CONSTITUTIONALITY OF SECTION 15 OF THE SPECIAL MARRIAGE

ACT, 1954
The Counsel humbly submits that, the Special Marriage act, 1954 is in accordance with the
Constitutional values of Indos and is not ultra-vires. This is an enactment that promotes the
secular fabric of the country and upholds the ideals of Preamble i.e., Justice, Liberty, Equality
and Fraternity.

The institution of marriage is different in all religion and castes. This difference further
intensified under the harsh gaze of the prevalent caste system. The caste system would not allow
people to marry outside the caste. Hence, the individual’s willingness to marry inter-caste faced
great difficulties and societal opposition. The motive of this Act is to provide coherent legal
provisions for safeguarding the people willing to do inter-caste or inter-religion marriages. The

26
INDIAN CONST. art. 42.
27
The Convention on the Elimination of All Forms of Discrimination Against Women, 1979.

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Act works in the interest of all citizens of India by providing a mechanism to institute an inter-
faith marriage. Hence, enacting the said legislation aims to safeguard peoples Fundamental rights
and empower them to choose their marital partners.

The Act further attempts to curb the menace of social evils like honour killing and Love-jihad
and recognized the rights of children born out of inter-faith marriages.

In Latha singh vs. state of U.P28, the petitioner wanted to quash the petition filed by her enraged
brother as the petitioner underwent an inter-caste marriage. Hence, the Apex court ruled that the
petitioner being 24 years of age, is major and in a position to choose her matrimonial part. In this
landmark case, the Apex court ordered the state Governments to promulgate the mechanism to
provide safety to the individuals marrying under the purview of the Special Marriage Act, 1954.

In Shafin Jahan vs. Asokan K.M29, popularly known as the Hadiya case, the Supreme Court
accepted the right to choose a matrimonial partner as a fundamental right. In this case the SC
quashed the Kerala High Court’s erroneous judgment and stated that Hadiya is free to pursue her
course and live her life on her terms. Further the Apex court justified that the right to marry a
person of one’s own choice is very much a part of Article 21 of the Constitution. Relying on the
above Judgments it can be concluded that the SMA is a reasonable legislation which only aims to
solemnize and register the marriage between inter-faith partners. Hence, it aims not to derogate
or over-ride any personal law and it’s not arbitrary in nature.

The enactment enables the individuals to marry the person of their choice irrespective of their
caste, community, religion or societal taboos. It also enhances the secular nature of our Country.

Section 15(a)30 of the SMA is as follows:

Registration of marriages celebrated in other forms –

Any marriage celebrated, whether before or after the commencement of this Act, other than a
marriage solemnized under the [Special Marriage Act, 1872 (3 of 1872)], or under this Act, may

28
Latha singh vs. state of U.P, (2006) 5 SCC 475.
29
Shafin Jahan vs. Asokan K.M, (2018) 16 SCC 368.
30
The Special Marriage Act, 1954, § 15(a), No. 43, Acts of Parliament, 1954 (India).

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be registered under this Chapter by a Marriage Officer the territories to which this Act extends of
the following conditions are fulfilled, namely:

(a) a ceremony of marriage has been performed between the parties and they have been living
together as husband and wife ever since;

The only object of this provision is to introduce a mechanism through which couples who have
already married under Personal laws can get a marriage certificate, which can be used for legal
purpose. Personal laws are different and the marriage certificate obtained under Personal laws
might be different as they have different format having certain religious terms. In order to ratify
all such obstacles, this act provides to get a legally authorized certificate having a uniform format
that can be easily accepted by the authorities of our country and as well as other countries.

Relying on the facts of the cases that discusses about Section 15, it is clear that, in most of such
cases the parties involved are seeking for Marriage Certificate under the Special Marriage Act,
1954 for the purpose legal documentation. In Deepak Krishna vs. District Registrar,
Ernakulam31, Giby George vs. Marriage Officer32, John Roji vs. Marriage Officer33, Y. John
Lukose & Anr. Vs. The District Registrar34, it can be seen that the petitioners approached the
court to relax different procedural formalities to receive a marriage certificate, before the ambit
of 30 days under Section 16 35 of SMA, for the purpose of producing it as a legal document.

In the case of Sidharth Swaminathan vs. Sub registrar Kottayam36, the petitioner is an Indian
citizen who is stated to be employed abroad and the second petitioner is a citizen and permanent
resident of United Kingdom. It is stated that the marriage between the petitioners will be
solemnized in accordance with the Hindu rights in Kerala, that as they intended to reside in
United kingdom after marriage they require a marriage certificate, issued by the Marriage Officer
appointed under the SMA and for the propose they have filed the application. The sole purpose is
to get the Marriage Certificate acknowledged. In para 5 of this judgment, the court referred to the

31
Deepak Krishna vs. District Registrar, Ernakulam, AIR 2007 Ker 257.
32
Giby George vs. Marriage Officer, 2007 (2) KLT 270.
33
John Roji vs. Marriage Officer, 2004(1) KLT 687.
34
Y. John Lukose & Anr. Vs. The District Registrar, 2007 (1) KLT 247.
35
The Special Marriage Act, 1954, § 16, No. 43, Acts of Parliament, 1954 (India).
36
Sidharth Swaminathan vs. Sub registrar Kottayam, AIR 2014 Ker 195.

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previous judgment in Vimal Ramachandran vs. Marriage Officer37 and all these cases clearly
shows the necessity and merit of Section 15 for obtaining the Marriage Certificate under SMA.

The provision of section 15 of the SMA clearly states that –

Registration of marriages celebrated in other forms –

Any marriage celebrated, whether before or after the commencement of this Act, other than a
marriage solemnized under the [Special Marriage Act, 1872 (3 of 1872)], or under this Act, may
be registered under this Chapter by a Marriage Officer the territories to which this Act extends
of the following conditions are fulfilled, namely:

The above section provides a choice to already married couples to choose to register their
marriage under this Act and it’s absolutely their choice and not a mandatory provision. The word
used here “may be registered” indicates that it’s purely optional to the couples. Therefore, it’s
not a legislation that over-rides or derogates the sanctity of any Personal laws.

The Counsel also submits that, when Section 15 is read along with Section 18 of the SMA, there
is a proviso in Section 18 –

Provided that nothing contained in this section shall be construed as conferring upon any such
children any rights in or to the property of any person other than their parents in any case where,
but for the passing of this Act, such children would have been incapable of possessing or
acquiring any such rights by reason of their not being the legitimate children of their parents.

The Counsel also tries to bring into notice of Section 538, 639 and 740 of the SMA, wherein there
is a provision where the parties intended to get married under the SMA needs to submit a notice
to the Marriage Officer in the prescribed form and this same notice shall be kept by the Marriage
Officer in the Marriage Notice Book and such book shall be open for inspection at all reasonable
times, by any person desirous of inspecting the same. Along with that, by section 6(2) 41 of the
SMA, it’s the duty of the Marriage Officer to affix a copy of the above mentioned notice in some

37
Vimal Ramachandran vs. Marriage Officer, WP(C) 10189/2004.
38
The Special Marriage Act, 1954, § 5, No. 43, Acts of Parliament, 1954 (India).
39
The Special Marriage Act, 1954, § 6, No. 43, Acts of Parliament, 1954 (India).
40
The Special Marriage Act, 1954, § 7, No. 43, Acts of Parliament, 1954 (India).
41
The Special Marriage Act, 1954, § 6(2), No. 43, Acts of Parliament, 1954 (India).

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conspicuous place in his office. Whereas, by virtue of Section 7 any person may , before the
expiration of thirty days from the date on which any such notice has been published under sub-
section (2) of section 6, object to the marriage on the ground that it would contravene one or
more of the conditions specified in section 4 42. Hence, it is submitted that this Act is a
transparent legislation and doesn’t entertain any kind of secrecy and mala fide practices for
personal gains.

Thus, the proviso and other provisions facilitate to forbid any kind of mala fide intentions with
respect to the transfer of property. Therefore, it is humbly submitted that this Act is not arbitrary
in nature. Besides, this is a reasonable, just and fare legislation. Hence, it is consistent with
Article 14 and 21 of the Constitution of Indos.

The Counsel also submits that, this Act is a progressive one which upholds the Right to Equality
and can be used as a measure to eradicate discrimination against women in the property rights. In
the present case, the issue is regarding the conflict between Muslim personal law and the SMA.
If a Mohammedan registers their marriage under SMA, the inheritance of property rights, as per
the Mohammedan law, will be ceased. But this makes an effort to protect Muslim women, who
are more vulnerable with respect to property rights as per the Muslim law. This is because as per
the Muslim law, women are entitled to get only a miniscule share over the property. There are
inequalities inherent in the inheritance of the property under the Muslim Personal Law (Shariat
Law) Application Act, 193743. In this Act, the Shariat Law is not mentioned properly. But
according to the approach taken by the Hon’ble courts based on the book “Principles of
Mohammedan Law”44, written by Sir D H Mulla, 1906, only two-thirds share of a
Mohammedan’s property will be given to his daughter after his death. The remaining one share
belongs to his brothers, in the Inheritance Certificate issued by the Tahasildar, apart from the
children. Siblings will also get a place, in such a situation where there is no male heir. Being a
girl child in Muslim Law, girls face several discriminations in the property rights, only they were
born as girls. This is a clear evidence of gender discrimination prevailing in the Muslim law.
Moreover, according to Shariat, even a Will is not possible. The only way for Muslims to
overcome this impasse within the existing legal system is the provisions under the SMA passed

42
The Special Marriage Act, 1954, § 4, No. 43, Acts of Parliament, 1954 (India).
43
Muslim Personal Law (Shariat) Application Act, 1937, No. 42, Acts of Parliament, 1937 (India).
44
SIR D H MULLA, PRINCIPLES OF MOHAMMEDAN LAW, Lexis Nexis India (1906).

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by the parliament in 1954. Thus by analyzing the outcome of this provision, it is effective to
eliminate the discrimination in the property rights towards women under the Mohammedan
Law45.

This Statute does not aim to infringe any Personal laws. If a section of Muslims use this
provision to overcome the demerits of their Personal law that discriminates women regarding
their property rights. Even though a sect of Muslims taking the advantage of using this provision
for enabling equal share, in the property, to their daughters, the only thing that instincts them is
the default in the personal law, i.e., the Muslim law. A secular statute cannot be declared as
unconstitutional only on the basis of eliminating the defaults in the Personal law. In this regard,
the profound statement of J. Frankfurter is apposite to reproduce:

“For the highest exercise of judicial duty is to subordinate one’s personal pull and one’s private
views to the law of which we are all guardians- those impersonal convictions that make a society
a civilized community, and not the victims of personal rule.”

The counsel humbly submits that the entitlement of property to daughters will only create
positive impact in the society. It is a highly beneficial enactment, to uplift the women; a
vulnerable section of the society, from gender based discrimination and enhances the
constitutional vision of right to equality. This provision can be taken as an initiative to realize the
objective of DPSP. Article 46 46 direct the States to–

“promote with special care towards the educational and economic interests of the weaker
sections of the people, and in particular of the Scheduled Castes and the Scheduled Tribes, and to
protect them from social injustice and all forms of exploitation.”

It is further submitted that, if there is deficiency in a personal law, it should be corrected by the
religious community who has the authority in it. To elaborate it, there is an example of ‘Nikkah
Halala’, which was once prevalent among the Muslim community. Years back there was a
practice among the Muslims to marry a woman, then divorce her, remarry her and again divorce

45
THE NEWS MINUTE, https://www.thenewsminute.com/article/why-shukkur-muslim-actor-kerala-marrying-his-
wife-again-women-s-day-174194 (last visited Jul. 21, 2023).
46
INDIAN CONST. art. 46.

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her according to the whims of the Muslim husband. Their rules for revocation of Marriage were
so lucid. Thus, the Muslim law itself found a remedy, ‘Nikkah Halala.’

‘Nikah Halala’, also known as ‘tahleel marriage’, is a practice in which a woman, after being
divorced by ‘triple talaq’, marries another man, consummates the marriage, and gets divorced
again in order to be able to remarry her former husband. It is introduced to protect the Muslim
women who were the victims of repeated talaq by their husbands.

By introducing this new form of marriage under the Muslim law, they themselves ratified the
defects in their Personal law. The same can be applied in the matter of inheritance of property by
daughters. Instead of making corrections, blaming a secular law, like SMA, cannot be
entertained. The provisions of the SMA are constitutional and uphold Art. 14 and 21 of the
Constitution of Indos.

The counsel, hence, humbly submits that Section 15 of the Special Marriage Act, 1954 is
constitutional.

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PRAYER

Wherefore in the light of the facts stated, issues raised, authorities cited and arguments
advanced, it is most humbly prayed before this Honorable Supreme Court that it may be pleased:

1. To dismiss the present Writ Petition

AND / OR

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

For This Act of Kindness, the Petitioner Shall Duty Bound Forever Pray.

Sd/-

COUNSELS ON BEHALF OF THE RESPONDENT.

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