2nd DEO MANGAL MEMORIAL NATIONAL MOOT COURT COMPETITION, 2023

Team Code – NSL01

2nd DEO MANGAL MEMORIAL NATIONAL MOOT COURT

COMPETITION, 2023

BEFORE THE HON’BLE SUPREME COURT OF ARYAVART

PUBLIC INTEREST LITIGATION

W.P (CIVIL) NO - OF 2023

IN THE MATTER BETWEEN

MRINAL AND AKRAM

……….. PETITIONER - 1

&
SAMRIDHI NGO
……….. PETITIONER - 2

VS

STATE OF AVANTI
………… RESPONDENT

MEMORIAL ON BEHALF OF RESPONDENT

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TABLE OF CONTENTS

TITLES PAGE NO

LIST OF ABBREVIATIONS …………………………………………….. 02

INDEX OF AUTHORITIES ………………………………………………03-04

STATEMENT OF JURISDICTION ……………………………………… 05

STATEMENT OF FACT…………………………………………………..06-07

ISSUES RAISED ……………………………………………….………….. 08

SUMMARY OF ARGUMENT ……………………………………………. 09-10

ARGUMENT ADVANCED ……………………………………………….. 11-28

PRAYER ……………………………………………………………………… 29

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LIST OF ABBREVIATIONS

AIR All India Report

Anr. Anothers
Art. Article
C.J Chief Justice
CrPc Code of Criminal Procedure
Hon’ble Honourable
HUF Hindu Undivided Family
ID Identity Document
i.e That is
IPC Indian Penal Code
LGBTQIA Lesbian Gay Bisexual Transgender Queer
Intersex Asexual
Ltd. Limited
NALSA National Legal Service Authority
NGO Non-governmental organization
NO. Number
Ors. Others
PIL Public Interest Litigation
Prof. Professor
RBD Registration of Births and Deaths
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reports
UCC Uniform Civil Court
UOI Union of India
V. Versus
W.P. Writ Petition
& And

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INDEX OF AUTHORITY
TABLE OF CASES:
1. ABC v. State NCT of Delhi AIR 2015 SC 2569
2. Abdul Latif Mondal v. Anuwara Khatun (2002) 2 CALLT 179 HC
3. Ashwini Kumar Upadhyay v. UOI W.P (Civil) No. 190 of 2023
4. Bai Tahira v. Ali Hussain Fidaalli Chothia 1979 AIR 362
5. Danial Latifi v. Union of India (2001) 7 SCC 740
6. Hussainara Khatoon v. state of Bihar 1979 AIR 1369
7. I.C. Golaknath & Ors v. State Of Punjab & Anrs 1967 SCR (2)762
8. Indra Sawhney v Union of India AIR 1993 SC 477
9. I.R. Coelho v. State of Tamil Nadu AIR 2007 SC 861
10. Janata Dal v. H.S. Chaudhary AIR 1993 SC 892
11. Jinia Keotin v. Kumar Sitaram Manjhi (2003) 1 SCC 730,733
12. K.S. Puttaswamy v. UOI (2017) 10 SCC 1
13. Mumbai Kamagar Sabha v. Abdul Thai AIR 1976 SC 1455
14. NALSA v.UOI AIR 2014 SC 1863
15. Navtej Singh Johar v. Union of India AIR 2018 SC 4321
16. Mathumitha Ramesh v. Chief Health Officer 2018 SCC Online Mad 2153
17. Minerva Mills Ltd. v. Union of India AIR 1980 SC 1789
18. Prakash v Phulavati (2016) 2 SCC 36
19. Ram Jawaya Kapur v. State of Punjab AIR 1955 SC 549
20. Ratilal Panachand Gandhi v. State of Bombay AIR 1954 SC 388
21. Revansiddappa and Others v. Mallikarjuna and Others 2011 11 SCC 1
22. Sajjan Singh v. State of Rajasthan AIR 1965 SC 845
23. Sarala Mudgal v. Union of India 1995 AIR 1533
24. Shah Bano Begum v. Mohd. Ahmed Khan AIR 1985 SC 945
25. Shanta Ram v. Smt. Dargubai 1980 AIR 16
26. Shankari Prasad v. Union of India 1951 AIR 458
27. Shayara Bano v. UOI AIR 2017 9 SCC
28. State of Bombay v. Bombay Educational Society AIR 1954 SC 361
29. Vishaka v. State of Rajasthan (1997) 6 SCC 241

STATUTE:
1. Hindu Marriage Act, 1955
2. Special Marriage Act, 1954
3. The Constitution of India, 1950
4. The Registration of Births and Deaths Act, 1969
5. The Muslim Women (Protection of Rights on Marriage) Act, 2019
6. The Sexual Harrasment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013
7. Transgender Person (Protection of Rights), 2019

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ARTICLES:

1. Byjus
2. Blog- iPleaders
3. Dristi IAS
4. Legal Service India
5. Live Law
6. SSC Online
7. Supreme Court Observer

CONVENTIONS:

1. International Covenant on Civil and Political Rights.

2. Universal Declaration of Human Rights.
3. The Convention on the Rights of the Child.

REPORT:

1. Law Commission Report, 2018

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STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of Aryavart has the jurisdiction in the matters under Article 32 of
the constitution of Aryavart which read as follows:

32.Remedies for enforcement of rights conferred by this part-

1.Right to move Supreme Court by appropriate proceedings for the enforcement of the rights
conferred by this part is guaranteed.

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

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

4.The right guaranteed by this article shall not be suspended except as otherwise provided by
the constitution.

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STATEMENT OF THE FACT

1. Aryavart is a large Conservative Sovereign country in Asiana consisting 28 states and

8 union territories that is populated by around 140 crores. From them around 70%
practice Hinduism, 20% practice Islam and other 10% other religion. Out of 28 states
only state of Kankan implemented Uniform Civil Code.

2. In state of Avanti there does not have any Uniform Civil Code. Mrinal who is a Hindu
trans-man was relationship with Akram who is a Muslim trans-woman since 2010 when
same-sex relationships were considered taboo and unacceptable by the society as well
as criminal offence. Their relationship was secret because of the social set up of the
Country & State.

3. In the year 2018 the Hon’ble Supreme Court decriminalized homosexuality due to that
LGBTQ+ community people claimed to feel self-confidence and decided to open up
regarding their relationship and the couple decided to get married. But they were unable
to get their Marriage officially registered as neither of them fall under the definition of
‘bride’ and ‘groom’. Their Marriage was solemnised under respective customs.

4. The meantime, Mrinal gets pregnant and gave birth to a healthy baby boy. The problem
arises when they were unable to get birth certificate issued for their son as the same
required name of father and mother and in their case though Mrinal gave Birth to the
child, Mrinal identified to be a male and therefore the father.

5. Their application of issuance of birth Certificate was rejected by the authorities in the
State of Avanti. Further attempt of their marriage registered also be rejected by the
authority. Hence, they decided to approach the Hon’ble Supreme Court of Aryavart
through filing a writ Petition under article 32 of the constitution of Aryavart with plea
of issuance of birth Certificate to their child and recognition of their marriage and
consequently sought to Implement a Uniform Civil Code which recognizes both same
sex marriage and inter-religious marriage and grants equal rights to all irrespective of
sex and religion.

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6. At the same time, an NGO named ‘Samridhi’ fighting to implement Uniform Civil
Code across the Country. The main ground taken by the NGO was that the Muslim
women are treated poorly and they do not have Legal weapons to claim maintenance,
or file such claims before the Courts. Their rights which are enjoyed by women of other
community are being curtailed by their personal Laws. So the NGO filed a Public
Interest Litigation to implement UCC.

7. The All-Indus Muslim Personal Law Board is opposing implementation of Uniform

Civil Code as they claim that it infringes their personal right and the same is in violation
of the rights granted under the Constitution. The Government of Aryavart is also
opposing the PIL filed by the Trans-couple on the Ground of maintainability as they
have an alternative remedy.

8. This case has collected huge media attention and become the issue of discussion.
Various media network ask for public opinions and there are both supporting views as
well as opposing views. The Supreme Court recognizing the importance of the case had
permitted live telecast of the hearings and posted all applications together along with
the question of maintainability of PIL and necessity of impleading Indus Muslim
Personal Law Board for hearing.

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ISSUES RAISED

ISSUE-1

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

ISSUE-2

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

ISSUE-3

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

ISSUE-4

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

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SUMMARY OF ARGUMENT

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

The council of respondent humbly submits that the PIL to implement UCC before the Hon’ble
Supreme Court is not maintainable because there is no public interest involved. The PIL is
filed on the ground that Muslim women subjected to ill treatment and their rights are curtailed
by personal laws. But All Indus Personal Law Board itself opposing implementation of UCC.
And in case of Writ Petition filed by the couple they are only the party in this case and they are
only responsible for the non-issuance of birth certificate to their child. Already six petitions
were filed before Supreme Court which were eventually dismissed on the ground that law
making power is the sole prerogative of Legislature. The writ of ‘Mandamus’ cannot be issued
against Legislature. So, the Public Interest Litigation is not maintainable before Supreme Court
and it is not feasible to implement UCC in a country like Aryavart which is full of diversity.

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

The council of Respondent humbly submits that UCC is violative of one’s Fundamental Rights
and other personal rights guaranteed under the constitution of Aryavart. Art. 15(4) of the
constitution talks about the reservation of Backward Classes. The purpose of reservation is to
give an opportunity to the backward people to uplift their status. In UCC it will be affected.
Aryavart is a state of diversity having various types of religion, speak different language and
their practice and tradition also different. If UCC implemented the cultural and educational
rights guaranteed under Art. 29 and 30 will be violated. Further customs and tradition are the
major source of Personal laws. It is quite obvious it will vary from community to community.
UCC is the initiative by the state to bring all the people in an umbrella which may attack the
sentiments of people. For example: Sapinda relationship is not permitted under Hindu law but
may tribal law allows Sapinda relationship. So, UCC is violative of one’s Fundamental Rights
and state can’t interfere in the realm of personal laws of subjects.

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

The council of respondent humbly submits that in the year 2014 for the first time ‘Third
Gender’ people were identified and in 2018 homosexuality is decriminalised. But till today
there is no governing laws regarding the marriage of homosexual people. As the couple belongs
from different religions, they have to go with Special Marriage Act, 1954 but the definition
of bride and groom is not applicable to them. So, the child born out of this void marriage is
illegitimate child who has only the right over the ancestral property. There was also dilemma
regarding who will be recognised as father and who as mother as a mixed sexuality exist
between the couples and they did not go for proper counselling. So, in this case non-issuance
of Birth Certificate for the child born from LGBTQIA couple is not a violation of the Child’s
right by the state.

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

The council of respondent humbly submits that the state of Aryavart accepted the principle of
separation of power and rule of law where constitution is the supreme law and powers of
government are divided into three wings of government. The Lawmaking power is vested upon
Legislature, Executive enforce those laws and Judiciary is there to interpret the laws. Judiciary
can make laws in a situation where there is no law in a particular field in form of Judicial
Incorporation. As soon as the parliament make laws in that particular field there is no use of
judicial legislation. So, the constitutional power of code to frame loss has not led to the scenario
where the legislature has become the executive wings of the judiciary.

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ARGUMENT ADVANCED

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

PILs are extensions of Writ Jurisdiction. Therefore, PILs can be filed before the Hon’ble
Supreme Court under Art. 32 of the Constitution. The seeds of the concept of public interest
litigation were initially sown in India by Justice Krishna Iyer, in 1976 was in Mumbai
Kamagar Sabha v. Abdul Thai.1 The first reported case of PIL was Hussainara Khatoon v.
State of Bihar2 that focused on the inhuman conditions of prisons and under trial prisoners
that led to the release of more than 40,000 under trial prisoners. In the Instant case, PIL has
been filed to implement Uniform Civil Code throughout the country of Aryavart before
Hon’ble Supreme Court, is maintainable in view the fact, the petition filed in a court of law,
for the protection of “Public Interest”, where the interest of the public at large is affected.

1.1.There is no public interest litigation:

Public interest litigation is not defined in any statute or in any act. The Hon’ble Supreme Court
of Aryavart has, in the case of Janata Dal v. H.S. Chaudhary3 held that lexically, the
expression ‘PIL’ means a legal action started in a court of law for the enforcement of
public/general interest where the public or a particular class of the public some interest
(including pecuniary interest) that affects their legal rights or liabilities. The original purpose
of PILs has been to make justice accessible to the poor and the marginalised. It is an important
tool to make human rights reach those who have been denied rights.

1.Mumbai Kamagar Sabha v. Abdul Thai AIR 1976 SC 1455.

2.Hussainara Khatoon v. State of Bihar 1976 SCR (3) 532
3.Janata Dal v. H.S. Chaudhary AIR 1993 SC 892

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Supreme Court of India in 1988 provided the Guidelines for filing PIL to reduce misuse of PIL.
Ordinarily, the PIL may be entertained on any subject of vital public importance, such as-
Bonded Labour matters, Neglected Children, petitions from riot victims, Petitions complaining
of harassment or torture of persons belonging to Scheduled Castes, Scheduled Tribes and other,
Backward Classes by the others or by the police, Petitioner pertaining to environmental
pollution, disturbance of ecological balance, forest and wild life, Petitioners complaining
violation of human rights. The present petition does not come exclusively on any of the
following grounds.4

In this present case an NGO named Samridhi filed the PIL on the ground that Muslim women
are treated poorly and the rights enjoyed by women of other communities are being curtailed
by the personal laws. Though the litigation was filed for the welfare Muslim women All-Indus
Muslim Personal Law Board has filed impleading petition against UCC. There are currently
201 official members, comprising mostly religious leaders that are nominated as
representatives of various Muslim sects and regional areas in India. Out of them 25 are women.
As the Scheduled is opposed by a large number of Muslim itself, there is no public Interest.

In the case of Mrinal and Akram, they have locus standi as only their rights are violated. They
are free to move the court of law to enforce their rights. There also had alternative remedies
und Special Marriage Act, 1954 to get their marriage registered and The Registration of
Births and Deaths Act, 1969 to issue the birth certificate to the child born out of their
relationship. There are no other people who are affected by as such issues.

4.Gudilines to be followed in case of PIL, SC 1988

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1.2 Alternative Remedies:

1.2.1 Maintenance under Code of Criminal Procedure:

Under the Muslim Personal Law, the law states that the husband who has divorced his wife has
to provide maintenance for her during the period of Iddat. Usually, the payment of dower is
considered to be enough maintenance for the wife. The dower amount comes under the
meaning of the term ‘sum payable’ as given under Section 127(3)(b) of the CrPc, so a woman
who has already received it is not entitled to further maintenance under Section 125 of the
CrPc.5 Then, in the light of the landmark case of Mohammed Ahmed Khan v. Shah Bano
Begum6, it was finally cleared out that mehr does not come under Section 127(3)(b), as it is an
obligation on the husband and is paid as a mark of respect for the wife, and not the amount
payable to the wife on divorce.

1.2.2 Muslim Women (Protection of rights on Divorce) Act :

The act was passed to provide reasonable and fair amount of dower and maintenance is to be
paid within the iddat period. The case of Danial Latifi v. Union of India7 was then filed
challenging the validity of the above Act, where it was held that it was constitutionally valid,
and though the maintenance has to be paid within the iddat period, it must be enough to
maintain her for her whole life.

Finally, in the case of Abdul Latif Mondal v. Anuwara Khatun8, it was discussed that since
the objective of Section 125 of the CrPc was to prevent the woman from destitution, and since
it is speedier, so the Muslim women can still claim maintenance under Section 125 of the CrPc.
It is futile for to divorced woman seeking succour to run after relatives, be it her children,
parents, relatives or other relatives, who are not possessed of means to offer her maintenance
and in fighting litigations in succession against them, dragging them to courts of law in order
to obtain negative orders justificatory of the last resort of moving against the State Wakf Board.

5.Bai Tahira v. Ali Hussain Fissali Chothia 1979 AIR 362

6.Mohd. Ahmed Khan v.Shah Bano Begum AIR 1985 SC 945
7.Danial Latifi v. Union of India (2001) 7 SCC 740
8.Abdul Latif Mondal v. Anuwara Khatun (2002) CALLT 179 HC

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1.2.3.The Transgender Persons (Protection of Rights) Act 2019:

On 15 April 2014, the Supreme Court of India delivered its judgment in NALSA v. UOI9 in
which it recognised the rights of transgender people in Aryavart and laid down a series of
measures for securing transgender people’s rights by mandating the prohibition of
discrimination, recommending the creation of welfare policies, and reservations for
transgender people in educational institutions and jobs. The judgment upheld the right of a
transgender person to self-perceived gender identity, guaranteed by the constitution, in the
absence of sex reassignment surgery. The 2014 judicial mandate was affirmed by the judgments
of the Supreme Court in Justice K.S. Puttaswamy and anr. v. Union of India and ors.10 and
Navtej Singh Johar v. Union of India11. Finally the act was passed in the year 2019.

1.2.4.Other Judicial Development:

In case of Sarla Mudgal12 there were four petitions filed in the Supreme Court under Article
32 of the constitution that were heard together. All the petitioners collectively argued that the
respondents converted themselves to Islam to circumvent the provisions of bigamy given under
Section 494 IPC and facilitate their second marriage with other women. It settled the ambiguity
surrounding the rights, duties and obligations of people who change religion to defeat the law.
The court held that a change of religion does not permit a person to defeat the provisions of
law and to commit bigamy.

Halala is the procedure prescribed for remarrying a divorced spouse. It entails the (former) wife
marrying another man, consummating the marriage and subsequently getting a divorce using
the same elaborate procedure. Only after that is she eligible to marry her first husband again.
While Muslim scholars rightly argue that halala should not be seen as a procedure to legalise
the reunion, problems regarding the validity of a marriage arise in case a husband remarries his
wife without observing halala.

9.NALSA v. UOI AIR 2014 SC 1863

10. K. S. Puttaswamy and anr. V. Union of India and ors. (2017) 10 SCC 1
11. Navtej Singh Johar v. Union of India AIR 2018 SC 4321
12. Sarla Mudgal v. UOI 1995 AIR 1533

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The Bombay high court, however, held that a wife is not obliged to perform halala before
remarrying the same husband if she is divorced by khula or talaq-e-ahsan (the prescribed mode
under the Quran) methods. Halala is mandatory only if the couple divorced using triple talaq,
the court said.13

In this case one Rizwan Ahmad (Husband) pronounced “Talaq, Talaq, Talaq” in the presence
of two witnesses and delivered “Talaq Nama” to Shayara Bano (wife). The wife challenged the
same, praying for a writ to be issued by the Supreme Court declaring the divorce as “void ab
initio” on the grounds that it violated her fundamental rights. As a consequence, constitutional
validity of Triple Talaq was called into question before a constitution bench of the Supreme
Court comprising of 5 judges. The Supreme Court held that the practice of talaq-e-biddat or
instantaneous triple talaq is unconstitutional14 two years later in July, Parliament enacted The
Muslim Women (Protection of Rights on Marriage) Act, 2019 which made the practice of
talaq-e-biddat a criminal act, punishable with up to three years imprisonment.

1.3 Judicial Pronouncement of non-maintainability:

Till today Six PILs have been filed before the Supreme Court – four by Upadhyay, one petition
filed by Lubna Qureshi and another petition filed by Doris Martin – seeking enactment of a
UCC. In a country like Aryavart principle of ‘Separation of power’ is followed. As per
separation of Power parliament exercises the sovereign right to frame laws and no outside
authority can issue it a direction to enact a law, thus recommending that petitions seeking a
UCC before Supreme Court should be dismissed as non-maintainable. It is respectfully
submitted that a writ of Mandamus a judicial remedy in the form of an order by a court to any
government or subordinate courts cannot be issued to the legislature to enact a particular
legislation. This is a matter of policy for the elected representatives of the people to decide and
no direction in this regard can be issued by the Court. It is for the legislature to enact or not to
enact a piece of legislation.

13. Mrs Sabah Adnan Sami Khan vs Adnan Sami Khan AIR 2010 Bom 109
14. Shayara Bano v. UOI AIR 2017 9 SCC 1(SC)

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The Supreme Court order of March 29, 2023 stated15:

“On a considered view of the pleadings & submissions, we are not inclined to entertain the
petition…the grant of these proceedings would necessitate direction form enactment of a law,
a gender-neutral, religion- neutral legislation as the petitioner has described it. Enactment of
legislation lies exclusively with the domain of the legislation… d.mandamus cannot be issued
to the legislature……”

“We see no reason to entertain such a request. Since ultimately it is an aid of the enactment of
the legislation which falls in the legislation domain”.

Conclusion:

The Counsel for the respondent humbly submits that though Article 44 talks about UCC in
form of DPSP, it is not mandatory in nature. The PIL filed before Hon’ble Supreme Court of
Aryavart is not maintainable due to lack of public interest and already pronounced judicial
decisions of non-maintainability. It is also noted that state already provides for alternative
remedies. So, country like Aryavart with full of diversity not feasible to implement UCC.

15. Ashwini Kumar Upadhyay v. UOI W.P (Civil) No. 190 of 2023

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

UCC is a proposal to formulate and implement personal laws of citizens which apply on all
citizens equally regardless of their religions, gender and sexual orientation. Presently personal
laws of various communities are governed by their religious scriptures throughout the territory.
The core objective behind the formulation of the UCC is to established a uniform legal
framework for all citizens. It has been supported by some groups as a way to promote national
integration and gender justice. The only state in Aryavart that has a UCC is Kankan, which
retained its common family law. The rest of the states follow different personal laws based on
their religious or community identity.

The 21st Law Commission brought up a consultation paper on “Reform of Family Law” in
August 2018 in which it said that UCC was “neither necessary nor desirable at this stage”. It
however recommended that existing family laws across religions are modified and codified to
tackle discrimination and inequality in personal laws. The Law Commission, which was headed
by former Supreme Court judge BS Chauhan, observed: "Cultural diversity cannot be
compromised to the extent that our urge for uniformity itself becomes a reason for threat to the
territorial integrity of the nation.”

2.1 UCC conflict with fundamental rights

The constitution under part III from Article 12 to 3516 contains a detailed provision relating to
the fundamental rights of the citizens, which includes the following fundamental rights – Right
to Equality, Right to Freedom, Right against Exploitation, Right to freedom of Religion,
Cultural and Educational Rights, Right to Constitutional Remedies. On the other side UCC is
a proposal to replace the personal laws of various religious communities with a common set of
laws for all citizens, which somehow violates the fundamental rights of the people relating to
the right to freedom of religion and the cultural and educational rights.

16. Constitution of India, 1950

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2.1.1.Right to Equality:

Art. 14 to 18 of Const. talks about right to equality. It includes to main concept ‘equality before
law’ and ‘equal protection of law’. Here Equality is a positive concept where reasonable
classification can be made. For example: Art. 15(4) itself talk about special provision for
women and children. Number of times reservation laws are challenged and it was held that
reservation laws are not violative of Art. 14, 15 &16. “Equality of opportunity did have a role
in thinking about entry to public employment, however while equality of opportunity was a
great principle in theory, there must be a provision to facilitate the entry of those communities
into public employment who have historically been denied the chance to do so.” In Indra
Sawhney v. Union of India17 the Supreme Court ruling that no provision of reservation or
preference can be so vigorously pursued as to destroy the very concept of equality.

2.1.2. Right to freedom of religion:

Article 25 and Article 26 of the constitution reserves the fundamental rights of the citizens
concerning religion. This basically gives the people the freedom of conscience and free
profession, practice and propagation of religion and also freedom to manage religious affairs.
On the otherhand the idea of UCC is enshrined under Article 44 of the constitution which
emphasis on establishing a uniform legal system in the territory irrespective of the religious of
the territory. Thus, the implementation of UCC is a clearcut violation of the fundamental right
of religion as given under the constitution. In the case of Ratilal Panachand Gandhi v. State
of Bombay18 the Court stated of cleared the meaning of Article 25 with also describing the
restriction that can be imposed by the state.

2.1.3. Cultural and educational rights:

Cultural and educational rights is one of the fundamental rights of the citizens that protect the
interest of minorities and also provide for the establishment and administration of the
educational institution of the minorities. The implementation of the UCC actually violates this
cultural and educational rights of the people on the grounds that the implementation of UCC
does not recognize the interest of the minorities as because everything will govern thorough
the uniform legal framework.

17. Indra Sawhney v. Union of India AIR 1993 SC 477

18. Ratilal Panachand Gandhi v. State of Bombay AIR 1954 SC 388

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In case of State of Bombay v. Bombay Educational Society19 the Court said that minority
institutions have the right to give admissions to the students of their choice even if they receive
government aid. The Government aid provided to institutes does not give the right to the
government to violate the rights of minorities.

2.2 UCC conflict with other personal rights:

The people have been guaranteed with fundamental rights under part III of the constitution
however the people also have various others personal rights that they enjoyed through other
constitutional provisions and also through various personal laws as provided by the state. The
implementation of UCC also hampered those other personal rights of the people.

2.2.1. Diverse personal laws and customary practices:

India is a country of diverse religions, cultures and traditions. Currently, not only Muslims but
also Hindus, Jains, Buddhists, Sikhs, Parsis, and Jews are governed by their own personal laws
Each community has its own set of personal laws and customs that govern their civil matters.
These laws and practices vary widely across regions, sects and groups. To find a common
ground and uniformity among such diversity is very difficult and complex. Moreover, many
personal laws are not codified or documented, but are based on oral or written sources that are
often ambiguous or contradictory. These are some of the practices of personal laws that might
not find in any place in UCC – Talaq-e-Bidat, Sapinda relationship, Triple Talaq, Nikah Halala
and practices of Hindu undivided family.

In the case of Mohd. Ahmed Khan v. Shah Bano Begum20 describe Nikah halala as - Further,
once a woman has been divorced, her husband is not permitted take her back as his wife even
if he had pronounced talaq under influence of any intoxicant, unless the woman undergoes
nikah halala which involves her marriage with another man who subsequently divorces her so
that her previous husband can re-marry her.

19. State of Bombay v. Bombay Educational Society AIR 1954 SC 561

20. Mohd. Ahmed Khan v. Shah Bano Begum AIR 1985 SC 945

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2.2.2. Resistance from Religious and Minority Groups: Many religious and minority group's
view UCC as an infringement on their religious freedom and cultural autonomy. They fear that
UCC would impose a majoritarian or homogenous law that would disregard their identity and
diversity. The minority groups like Naga Community, Muslim community opposed the
implementation of UCC. All India Muslim Personal Law Board’s General Secretary Mr.
Maulana Wali Rehmani said that, “Uniform Civil Code is divisive and will lead to social unrest,
and that It is against the spirit of the Constitution, which safeguards the right of citizens to
practice their culture and religion,”.21

2.2.3. Effect of UCC on Hindu Undivided Family: Under Hindu Law, a HUF is a family
which consists of all persons lineally descended from a common ancestor and includes their
wives and unmarried daughters. The HUF, as a separate tax unit, enjoys exemptions,
deductions, and a distinct tax exemption limit. Once UCC is implemented, these tax benefits
associated with the HUF would no longer be applicable, which would force many taxpayers to
rework their income tax planning.

2.2.4.Lack of Political Will and Consensus: There is a lack of political will and consensus
among the government, the legislature, the judiciary and the civil society to initiate and
implement UCC. There are also apprehensions that UCC could provoke communal tensions
and conflicts in the society.

2.3. Interference in the realm of personal laws of the subjects:

personal laws basically those laws that governed the personal practices and tradition of any
specific religion through certain set of rules and regulations the country basically have a
mixture of diverse religion, culture and traditions. Currently not only Muslim but also Hindus,
Jains, Buddhists, Sikhs, Parsis, and Jews are governed by their own personal laws. Each
community has its own set of personal laws and customs that govern their civil matters. These
laws and practices vary widely across regions, sects and groups. To find a common ground and
uniformity among such diversity is very difficult and complex. Moreover, many personal laws
are not codified or documented, but are based on oral or written sources that are often
ambiguous or contradictory. Hence the formation and implementation of UCC can be
considered as the state interference in the realm of the personal laws of the subjects.

21. The Hindu 1st November, 2022

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In the case of Danial Latifi,22 the Supreme Court of India held that the provision of
maintenance under Section 125 of the Criminal Procedure Code was applicable to Muslim
women, even if they had been divorced by their husbands under Muslim personal law. The
judgment was again met with protests from Muslim organizations, who argued that it was a
violation of their religious freedom. In the case of Prakash v Phulavati23 the Supreme Court
of India held that daughters have equal rights to inherit ancestral property, regardless of when
their father died. The Court noted that the law must evolve with the changing times and that
gender discrimination has no place in modern society.

Conclusion:

It can rightly be concluded by saying that the formation and implementation of UCC on one
hand is very much violative to the fundamental rights and other personal rights guaranteed to
the people under the constitution, on the other hand it also hampered the personal laws and
customary practices of various religious community also it can be considered as the state
interference in the realm of the personal laws of the subjects.

22. Danial Latifi v. UOI (2001) 7 SCC 740

23. Prakash v Phulavati (2016) 2 SCC 36

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

A birth certificate is the primary legal document that establishes an individual’s identity. It
contains vital informations such as the person’s full name, date and place of birth, gender and
the names of their parents. Furthermore, birth certificate is vital to determine an individual’s
citizenship. It provides concrete evidence of person’s nationality ensure that they have access
to various rights and privileges bestowed upon citizens such as voting, education healthcare
and employment opportunities.

3.1.The baby boy is illegitimate child :The term The 'illegitimate' means "something which
is contrary to law " Illegitimate children as understood are those children who are not born out
of a lawful wedlock. Illegitimacy24 means, "a child born of parents not lawfully married to
each other". This means illegitimacy means when the parents of a child are not lawfully
wedded, the child will be considered illegitimate. Section 11 and 12 of The Hindu Marriage
Act, 1955 talks about the grounds under which a marriage may be considered as void or
voidable marriage and children born of such a marriage are considered to be illegitimate
children. In Jinia Keotin v. Kumar Sitaram Manjhi25, the Supreme Court has said "under the
ordinary law, a child for being treated as legitimate must be born in lawful wedlock if the
marriage itself is void on account of contravention of the statutory prescription any child born
of such marriage would be considered as illegitimate. In this case as the couple doesn't fall
under the definition of 'bride' and 'groom' and moreover they belong to two different religions
and also their marriage itself is unregistered therefore the child cannot be considered as
legitimate child. Not only the society discriminated the illegitimate child even law has
discriminated them. Law has not given the illegitimate children the same legal rights as the
legitimate ones are given, as illegitimate child only has right to hold property apart from all
the other rights.

24. The Oxford Dictionary (Online Edition)

25. Jinia Keotin v. Kumar Sitaram Manjhi (2003) 1 SCC 730,733

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In Shanta Ram v. Smt. Dargubai26, the Bombay High Court observed that illegitimate child
would not acquire the right to succession to the same extent as is available to the children.
Thus, the non-issuance of the birth certificate for the child born from the couple is very much
justifiable step and it cannot be considered as the violation of child's rights by the state
of valid marriage. in the case of Revansiddappa and Others v. Mallikarjuna and Others,27
the Supreme Court determined that a child born out of a null marriage is innocent and has a
right to their parents' property.

3.2.Biological Father is not identified:

In the following case Mrinal is a Hindu trans- man and Akram is a Muslim trans- woman got
officially married and gave birth to healthy baby boy. The problem got complicated when it
was found that though Mrinal gave birth to the child, Mrinal identified to be a male and
therefore the father, on the other hand Akram as a trans -woman identified herself as a woman.
So it is very much clear that there exist a clear cut conflict as regard to the identification of the
biological father. Thus, non- issuance of the birth certificate for the child is not a violation of
the child's rights as to become a legitimate child one of the core requirements is the
identification of the father and mother for the purpose of mentioning the name of the father and
mother in the birth certificate. ABC v. State NCT of Delhi,28 the High Court also stated that
no women shall be insisted on revealing the father's name when the details of the birth are
registered in the books of the authorities concerned. In the case of Mathumitha Ramesh v.
Chief Health Officer, 29 on the directions of the Court, the birth certificate in the present case
was rectified in which the father’s name was left blank.

3.3.The couple did not go for RBD 1969 Act:

The marriage of the couple's in the present case did not get officially registered under the
Registration of Births and Deaths Act, 1969 as neither of them fail under the definition of
bride and groom and moreover they belong to two different religion thats why they find that
they were in a legal conundrum.

26. Shanta Ram v. Smt. Dargubai 1980 AIR 16

27. Revansiddappa and Others v. Mallikarjuna and Others 2011 11 SCC 1
28. ABC v. State NCT of Delhi AIR 2015 SC 2569
29. Mathumitha Ramesh v. Chief Health Officer 2018 SCC Mad 2153

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Furthermore providing the names of the father and the mother and also providing the ID prove
for the same is one of the requirements for the registration of marriage but in this case the
biological father could not be identified therefore they are not able to get their marriage
registered. So, since their marriage itself could not be registered under The Registration of
Births and Deaths Act, 1969 the state of Avanti rejected the application of the birth certificate
of the child. The Law Commission (2018) recommended the inclusion of marriage registration
in The Registration of Births and Deaths Act, 1969. In the famous case of Seema v. Ashwani
Kumar,30 the Supreme Court was with the observation that the subject-matter of registration
of marriage is supposed to be considered under the ambit of vital statistics as has been laid
down in Entry 30, List-3, Section 7 of the Constitution of India. That is the reason, registration
of marriages of citizens all across the nation of any religion under any statute should be held to
be compulsory if the State solemnizes the marriage.

3.4.Lack of implementation of UCC :

UCC basically a proposal to formulate and implement personal laws into a uniform legal
framework irrespective of the religion, gender, sexual orientation, etc. Only the state of Kankan
has successfully implemented UCC, but the state of Avanti does not have UCC. The couple in
the case are the residents of state of Avanti. As UCC is not applicable in the state the couple's
face difficulties to get their marriage registered thus they were unable to get the birth certificate
for their child. In Mohd Ahmed Khan v. Shah Bano Begum3 case the SC order regretted that
Article 44 remained a 'dead letter' and questioned the logic of allowing communities to usher
and reforms on their own.

Conclusion:

It can rightly be concluded by saying that non issuance of birth certificate for the child born
from the couple is not a violation of child right by the state as the child is a illegitimate child
and also there is a difficulties in regards to the identification of the father and mother of the
child. Further the issue get more complicated as the state of Avanti, which is the resident of the
couples does not have UCC and also their marriage is not registered under the RBD Act,1969.

30.Seema v. Ashwani Kumar AIR 2006 SC 1158

31. Mohd Ahmed Khan v. Shah Bano Begum AIR 1985 SC 945

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4.Whether constitutional power to frame laws has led to the scenario where Legislature
have become the Executive wing of Judiciary?

Government has three wings Legislature, Executive & Judiciary Generally lawmaking power
is vested upon Legislature, Executive do enforce the laws made by Legislature & Judiciary
interprets those laws. But to some extend Aryavart support judicial legislation Judicial
legislation is nothing but law pronounced, proclaimed and declared by the judiciary- more
particularly the Supreme Court, this is also known as judicial law or Judge-made law.

4.1.Doctrine of Separation power: The doctrine of separation of powers implies that each
pillar of democracy – the executive, legislature and judiciary – performs separate functions and
acts as separate entities. Art. 50 of constitution talks about “The State shall take steps to
separate judiciary from the executive in public services of the state.” In I.C. Golak Nath v
State of Punjab32 Justice Subha Rao,32 C.J opined that “It demarcates their jurisdiction
minutely and expects them to exercise their respective powers without overstepping their limits.
They should function with the spheres allotted to them” In the case of Kesavananda Bharati
v. State of Kerala 33 it is decided that separation of powers is a part of the basic structure of
the Constitution. None of the three separate organs of the Republic can take over the functions
assigned to the other. Supreme Court in Ram Jawaya Kapur v. State of Punjab34 held that
the functions of the different parts or branches of the government have been sufficiently
differentiated and consequently it can be very well said that our Constitution does not
contemplate assumption by one organ or part of the State of functions that essentially belong
to another. in I.R. Coelho v. State of Tamil Nadu35 S.C. took the opinion opined by the
Supreme court in Kesavananda Bharati case36 pertaining to the doctrine of basic structure
and held that the Ninth Schedule is violative of the above-said doctrine and hence from now
on the Ninth Schedule will be amenable to judicial review which also forms part of the basic
structure theory.

32. I.C. Golak Nath v State of Punjab 1967 SCR (2) 762
33. Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461
34. Ram Jawaya Kapur v. State of Punjab AIR 1955 SC 549
35. I.R. Coelho vs. State of Tamil Nadu AIR 2007 SC 861
36. Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461

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4.2.Rule of Law:

The expression “Rule of Law” is derived from the French phrase ‘ele principe de legalit’
meaning the principle of legality. Prof Wade expressed- “The rule of law requires that the
government should be subject to the law rather than the law subject to the government”. In
case of Kesavananda Bharti v. State of Kerala37 SC held ‘rule of law’ is the basic structure
of the Constitution by establishing Supremacy of Constitution.. Constitution itself demarcates
the power between three wings of the Government. So, laws made by Judiciary is not valid.

4.3 Judicial Review:

It is a type of court proceeding in which a judge reviews the lawfulness of a decision or action
made by a public body. The powers of judicial review are delegated to the courts under Article
226 and Article 227 of the Constitution, as far as the High Courts are concerned, and in Article
32 and Article 136 with regard to the Supreme Court. In Shankari Prasad v. Union of
India38 a challenge was made to the First Amendment Act of 1951 on the grounds that the
‘Right to Property’ was restricted. In Sajjan Singh v. State of Rajasthan39 the Court
eradicated the position in the Shankar Prasad case and held that the constitutional amendments
made under Article 368 are not within the ambit of judicial review by the courts. In I C.
Golaknath & Ors vs. State of Punjab & Anrs.40 there was a challenge made to three
constitutional amendments and Hon’ble SC that Parliament has no authority under Article 368
to change the Constitution or to take away or restrict fundamental rights. In Indira Nehru
Gandhi v. Shri Raj Narain & Anr.41 Then Prime Minister of Indira Gandhi was held guilty
of electoral malpractice and finally in Minerva Mills Ltd. v. Union of India42 clauses (4) and
(5) of Article 368, which were inserted by the 42nd Amendment (1976), were struck down by
the Apex Court on the grounds that these clauses destroyed the basic structure of the
Constitution and Judicial Review is one of the basic structure of the Constitution. So, Judiciary
is free to Review any provisions of constitution i.e, questioned before court of law. But absolute
power to make laws is with Legislature.

37. Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461

38. Shankari Prasad v. Union of India 1951 AIR 458
39. Sajjan Singh v. State of Rajasthan AIR 1965 SC 845
40. I C. Golaknath & Ors vs. State Of Punjab & Anrs 1967 SCR (2) 762
41. Indira Nehru Gandhi v. Shri Raj Narain & Anr 1975 AIR 865
42. Minerva Mills Ltd. v. Union of India AIR 1980 SC 1789

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4.4.Validity of Judge made law :

Judges make law when there is a legal vacuum or no express principles of law. But when
existing laws fail to provide all the resources to deliver justice or “complete justice”, Judges do
tend to find the law within the framework of legislation through its interpretative techniques or
judicial creativity. In case of Vishaka v. State of Rajasthan43 Hon’ble Supreme Court of law
provides the guidelines for the Sexual Harassment at workplace and ultimately Legislature
made Sexual Harassment at Workplace Act in the year 2013. It takes almost 16 years to
make laws. So, Judge made law is valid as long as there is no specific legislation on the specific
matter. In case of Navtej Singh Johar v. UOI44 homosexuality is decriminalised and
Legislature fill up by Legislate The Transgender Persons Protections of Rights Act 2019.

Conclusion:

Aryavart accepted doctrine of Separation of Power and Rule of Law but not absolutely in
modified form where three wings of government are established and each wing is depended
upon others. Judiciary also in absence of legislation on a particular matter make laws and the
laws are valid till legislature do not legislate on that matter. But it does not mean Judiciary
become the Executive wing of Legislature.

43. Vishaka v. State of Rajasthan (1997) 6 SCC 241

44. Navtej Singh Johar v. UOI AIR 2018 SC 4321

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PRAYER

Wherefore in the light of the issues raised arguments advanced and authorities cited, it is
humbly prayed before the Hon’ble Supreme Court of Aryavart to provide an appropriate
direction and judgement and adjudge and declare that:

1.The PIL filed by Samridhi NGO and the couple named Mrinal and Akram to implement UCC
before the Supreme Court is not maintainable and it is not feasible to implement UCC in a state
like Aryavart.

2.UCC is violative of once fundamental rights and other personal rights guaranteed under the
constitution of Aryavart and state cannot interfere in the realm of personal laws of the subjects.

3. The non issuance of the Birth Certificate in this case for the child born from a LGBTQIA
couple is not violation of child’s right by the state.

4. The Constitutional power of the court to frame laws has never led to the scenario where
Legislature have become the executive wing of Judiciary.

AND/OR

Pass any other order or orders as the court may deem fit and proper in the circumstances of
the case and in light of Justice, equity, and good conscience.

For this act of kindness, the respondent, as in duty bound, shall humbly pray.

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