JUSTITIA-2018

TIN:
________________________________________________________________ JM6
JM6
________________________________________________________________

BEFORE

THE HON’BLE SUPREME COURT OF INDIA

EXTRAORDINARY ORIGINAL JURISDICTION

WRIT PETITION (PIL)

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

________________________________________________________________

WASIM & OTHERS……………..……………………...……..PETITIONERS

________________________________________________________________

VERSUS

________________________________________________________________

UNION OF INDIA & ANR…….……………………………RESPONDENTS

________________________________________________________________

Submitted Before the Hon’ble Supreme Court of India

MEMORANDUM ON BEHALF OF THE RESPONDENTS

____________________________________________________________
i
MEMORANDUM ON BEHALF OF THE RESPONDENTS
 JUSTITIA-2018
________________________________________________________________

TABLE OF CONTENTS

1. LIST OF ABBREVIATIONS……………………………………..…………..iii

2. INDEX OF AUTHORITIES……………………………………….………….iv

3. STATEMENT OF JURISDICTION……………………………….………...viii

4. STATEMENT OF FACTS……………………………………………….……ix

5. ISSUES FOR CONSIDERATION…………………………………….….......xi

6. SUMMARY OF PLEADINGS………………………………….…………….xii

7. WRITTEN SUBMISSIONS …………………………………………………1-15

I. THE PRESENT PIL IS NOT MAINTAINABLE.

II. THE TRIPLE TALAQ (CRIMINALIZATION) ACT, 2018 IS

CONSTITUTIONALLY VALID.

III. THE INITIATION OF CRIMINAL PROCEEDINGS AGAINST THE

PETITIONER IS LEGALLY TENABLE.

8. PRAYER FOR RELIEFS…….........………………........................................16

____________________________________________________________
ii
MEMORANDUM ON BEHALF OF THE RESPONDENTS
 JUSTITIA-2018
________________________________________________________________

LIST OF ABBREVIATIONS

AIR All India Report

Art. Article

§ Section

Hon’ble Honourable

i.e. That is

Indian Penal Code

Ors. Others

Public Interest Litigation

SC Supreme Court

Supreme Court Cases

Sec. Section

Supp. Supplementary

Versus
V.

ED. Edition

& And

OLR Odisha Law Review

____________________________________________________________
iii
MEMORANDUM ON BEHALF OF THE RESPONDENTS
 JUSTITIA-2018
________________________________________________________________

INDEX OF AUTHORITIES

 CASES REFERRED

S. NO Name of the Cases Citation

1. A.S. Parveen Akthar v. The Union of India AIR 2002 Mad

2. Aaqil Jamil & 2 Ors. v. State of U.P. & Anr. AIR 2017 All

3. Academy of Nutrition Improvement v. Union of India JT 2011 8 SC 16

4. Amir-ud-din v. Khatun Bibi AIR 1917 All

5. Andhra Industrial Works v. Chief Controller of Imports & Ors. AIR 1974 SC 1539

6. Asha Bibi v. Kadir 33 Mad. 22

7. Association of Drugs and Pharmaceuticals v. A.P. Health, 2002 (2) ALD 609

Development Corporation, Hyd. & Anr.

8. Crisholm v. Doulton 22 Q.B.D 739

9. Danial Latifi v. Union of India (2001) 7 SCC 740

10. Dattaraj Nathuji Thaware v. State of Maharashtra & Ors (2005) 1 SCC 590

11. Deena Dayal v. Union of India AIR 1983 SC 1155

12. Directorate of Film Festivals v. Gaurav Ashwin Jain AIR 2007 4 SCC 737

13. Esmail Noor Mohammad, M/S Haji v. Competent Officer AIR 1967 SC 1244

14. Farooq Khan v. Chief of the Army Staff & Ors 2016 SCC 450

15. Fulchand v. Nazib Ali 36 Cal. 184.

16. Gopal Das Mohta v. Union of India AIR 1955 SC 1

17. Govt. of Andhra Pradesh v. P.B.Vijaykumar & Anr. AIR 1995 SC 1648

____________________________________________________________
iv
MEMORANDUM ON BEHALF OF THE RESPONDENTS
 JUSTITIA-2018
________________________________________________________________
18. I R Coelhpo v. State of T.N AIR 2007 SC 861

19. Jiauddin Ahmed v. Anwara Begum (1981) 1 OLR 358

20. L.V. Jadhav v. Shankarrao Abasaheb Pawar AIR 1983 SC 1219

21. Lily Thomas v. Union of India AIR 2000 SC 1650

22. M. M. Abdul Khader v. Azeeza Bee AIR 1944 Mad 227

23. Madhu Kishwar v. State of Bihar AIR 1996 5 SCC 125

24. Maneka Gandhi v. Union of India (1978) 1 SCC 248

25. Medical Association v. V.P Shantha & Others (1995) 6 SCC 651

26. Mohd. Ahmed Khan v. Shah Bano Begum & Ors 1985 2 SCC 556

27. Mrs Sabah Adnan v. Adnan Sami Khan 2011 3 K.L.T. SN 11

28. Must. Rukia Khatun v. Abdul Khalique Lasker (1981) 1 GLR 375

29. P.M.A. Metropolitan v. Moran Mar Marthoma AIR 1995 SC 2001

30. Rahmat Ullah & Khatoon Nisa v. State of U.P. & Ors. AIR 1994 All

31. Ram Prasad v. State of U.P. AIR 1957 All 411

32. Ramesh Dalaji Godad v. State of Gujarat II (2004) DMC 124

33. Romesh Thapar v Union of India AIR 1950 SC 124

34. Sarabhai v. Rabai Bai (1906) 30 Bom 537

35. Satyadhyan Ghosal v. Sm. Deorajin AIR 1960 SC 941

36. Shamim Ara v. State Of U.P. & Anr 2002 3 KLT 537 SC

37. Shayara Bano v. Union of India 2017 9 SCC 1

38. Sushila Devi v. Ramnandan Prasad AIR 1976 SC 177

39. Syed Rashid Ahmed & Anr. v. Anisa Khatun & Ors. AIR 1932 PC 25

40. The Janta Dal v. H.S. Chowdhary 1992 (4) SCC 305

41. Voluntary Health Association of Punjab v. Union of India (2013) 4 SCC 1

____________________________________________________________
v
MEMORANDUM ON BEHALF OF THE RESPONDENTS
 JUSTITIA-2018
________________________________________________________________

 BOOKS REFERRED

 DURGA DASS BASU, COMENTARY ON THE CONSTITUTION OF INDIA

(8TH ED. 2012)

 H.M. SEERVAI, CONSTITUTION OF INDIA, (4TH ED. 2013)

 DURGA DASS BASU, SHORTER CONSTITUTION OF INDIA, (13 TH ED. 2001)

 M.P. JAIN, INDIAN CONSTITUTIONAL LAW, (7TH ED. 2014)

 V.N.SHUKLA, CONSTITUTION OF INDIA, (13TH ED. 2017)

 MULLA, PRINCIPLES OF MAHOMEDAN LAW, (21ST ED. 2017)

 AQIL AHMED, MOHAMMEDAN LAW, (26TH ED. 2016)

 K.D. GAUR, TEXTBOOK ON INDIAN PENAL CODE, (6TH ED. 2016)

 SYED TAHIR MAHMOOD, THE MUSLIM LAW OF INDIA, (3RD ED. 2002)

 DICITIONARIES REFERRED

 STROUD, JUDICIAL DICTIONARY, VOL. 4 (4TH EDITION).

 BLACK, LAW DICTIONARY (6TH EDITION).

 STATUTE REFERRED

 INDIAN PENAL CODE,1860

 THE MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT,1937

 PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT,2005

 INDIAN EVIDENCE ACT, 1872

 DOWRY PROHIBITION ACT, 1961

 COMMISSION OF SATI (PREVENTION) ACT, 1988

____________________________________________________________
vi
MEMORANDUM ON BEHALF OF THE RESPONDENTS
 JUSTITIA-2018
________________________________________________________________
 CONSTITUTION REFERRED

 CONSTITUTION OF INDIA, 1950

 WEBSITES

 http://www.manupatra.com

 http://www.lexisnexis.com/academica

 http://www.lexisnexis.com/in/legal

 http://www.scconline.com

 http://www.oxforddictionaries.com

 RELIGIOUS TEXTS

 ABDULLAH YUSUF ALI, THE HOLY QURAN: TEXT TRANSLATION &

COMMENTARY, (14TH ED. 2016)

____________________________________________________________
vii
MEMORANDUM ON BEHALF OF THE RESPONDENTS
 JUSTITIA-2018
____________________________________________________________

STATEMENT OF JURISDICTION

The petitioners have approached this Hon’ble Court under Article 321 of the Constitution of

India. The respondents hereby present this memorandum in response to the petition filed.

The present memorandum sets forth the facts, contentions and arguments.

1
INDIA CONST. art. 32.

____________________________________________________________
viii
MEMORANDUM ON BEHALF OF THE RESPONDENTS
 JUSTITIA-2018
____________________________________________________________

STATEMENT OF FACTS

I. BACKGROUND OF PARTIES

1. Wasim Mohd, a doctor by profession and native of Hyderabad was married to Ms.

Salma, a dentist as per Islamic traditions at Hyderabad in December 2015. As Wasim

had secured an employment in a corporate hospital in Dubai, post-marriage the couple

shifted to the country and lived amicably for 2 years.

2. Owing to Salma’s modern lifestyle, differences grew between them in 2017. Salma

returned to her parents in Hyderabad in January, 2018. Wasim called Salma after 15

days of arrival and pronounced triple talaq on her, much to her dismay. He transferred

the amount of the Mahr, a sum of Rs 50,000 to her bank account and informed her

over the phone.

II. PROCEDURAL BACKGROUND

3. Salma was devastated over this unilateral and hasty action and upon consultation with

a legal counsel, challenged the validity of triple talaq in the Supreme Court of India.

Her petition cited Article 14, 15, 25, relevant portions of the Holy Quran apart from

the opinions of Muslim Scholars in her support.

4. Her writ petition was clubbed with other writ petitions in the nature of PIL which

challenged the validity of triple talaq. A constitution bench of Supreme Court by a

majority of 4:1 declared that the practice of triple talaq among the Muslims is

discriminatory against the Muslim women and that such practice is also not approved

under the Muslim Personal Law of India.

III. QUESTION OF LEGAL IMPORTANCE

5. The Government of India in an effort to quell the practice of triple talaq created an

Act; Triple Talaq (Criminalization) Act, 2018 inter alia that any Muslim husband

____________________________________________________________
ix
MEMORANDUM ON BEHALF OF THE RESPONDENTS
 JUSTITIA-2018
____________________________________________________________
pronouncing instant talaq shall be liable to be punished with minimum 2 years and a

maximum of 7 years apart from providing compensation to his Muslim wife.

6. Gaining impetus from the new law, Salma filed a criminal complaint against Wasim

and demanded a compensation of Rs 1 Cr. Aggrieved by the action of Salma, Wasim

prayed along with similarly placed husbands for declaration of the unconstitutionality

of the Triple Talaq (Criminalization) Act, 2018 on the basis that it is unreasonable and

violates right to freedom of religion.

____________________________________________________________
x
MEMORANDUM ON BEHALF OF THE RESPONDENTS
 JUSTITIA-2018
____________________________________________________________

ISSUES FOR CONSIDERATION

I. WHETHER THE PRESENT PIL IS MAINTAINABLE OR NOT?

II. WHETHER THE TRIPLE TALAQ (CRIMILIZATION) ACT, 2018 IS

CONSTITUTIONALLY VALID OR NOT?

III. WHETHER THE INITIATION OF CRIMINAL PROCEEDINGS AGAINST THE

PETITIONER IS LEGALLY TENABLE?

____________________________________________________________
xi
MEMORANDUM ON BEHALF OF THE RESPONDENTS
 JUSTITIA-2018
____________________________________________________________

SUMMARY OF PLEADINGS

I. THE PRESENT PIL IS NOT MAINTAINABLE.

It is humbly submitted before the Hon’ble Court that there is no infringement of fundamental

right nor were such violations imminent. Also, the instant Public Interest Litigation has been

filed with a view to abuse the process in order to protect the interests of an individual. Hence,

the petitioner does not have a locus standi, as, this petition is just a misuse of the provisions

of a Public Interest Litigation, and should be held as not maintainable.

II. THE TRIPLE TALAQ (CRIMINAILIZATION) ACT, 2018 IS

CONSTITUTIONALLY VALID.

The Triple Talaq (Criminalization) Act, 2018 passed by the parliament is constitutionally

sound as it is enacted for the benefit of Muslim women and for protecting their fundamental

rights under Art. 14, 15 and 21. Also, it does not violate the fundamental rights of the Muslim

husbands under Art. 25 of the Constitution of India.

III. THE INITIATION OF CRIMINAL PROCEEDINGS AGAINST THE

PETITIONER IS LEGALLY TENABLE.

It is humbly submitted that the act of criminalization of the practice of triple talaq is valid on

the basis that there are punishments provided under the Codes for the mental harm. The

practice can constitute a crime despite the absence of mental element i.e. mens rea because of

similar cases like in negligence. It has been done on the basis of precedents.

____________________________________________________________
xii
MEMORANDUM ON BEHALF OF THE RESPONDENTS
 JUSTITIA-2018
____________________________________________________________

WRITTEN SUBMISSIONS

I. THE PRESENT PIL IS NOT MAINTAINABLE.

The sole object of Art. 32 is the enforcement of the fundamental rights2 guaranteed by the

Constitution. Whatever other remedies may be open to a person aggrieved, has no right to

complain3 under Art. 32, where no fundamental rights has been infringed4. A Public Interest

Litigation can be filed under Article 32 of the Constitution5 for the enforcement of

Fundamental Rights,6 as guaranteed by part III of the Constitution.7

In the present case, there has been no violation of the fundamental rights since, the action

taken by the State was in furtherance of the principle of economic and social justice and thus

cannot be termed as arbitrary or as one which was without the application of the mind.

[i] There is no locus of the petitioners as there is no violation of fundamental rights.

[ii] PIL is not maintainable, as the petition doesn’t fall in its definition and is an abuse of

PIL.

[iii] The question to review the law or policy made by the government.

2
INDIA CONST. Part III.
3
Esmail Noor Mohammad, M/S Haji v. Competent Officer, AIR 1967 SC 1244.
4
Gopal Das Mohta v. Union of India, AIR 1955 SC 1.
5
INDIA CONST.
6
INDIA CONST. art. 32, cl 1.
7
Andhra Industrial Works v. Chief Controller of Imports & Ors, AIR 1974 SC 1539.

____________________________________________________________
1
MEMORANDUM ON BEHALF OF THE RESPONDENTS
 JUSTITIA-2018
____________________________________________________________
[i] The respondents submit that the Court has held that only if there is a violation of

Fundamental Rights it can step in under the Jurisdiction of Article 328. The petitioners are

raising a mere scholarly objection, without any locus standi, there has been no violation of

the right to freedom of religion, as discussed in detail in the further issue, and no question

other than relating to fundamental rights will be determined in the proceedings of the court

under Art 329. Hence when there is no damnus, the Petitioners cannot seek a remedy. And

since Art. 32 is concerned only with the enforcement of fundamental rights, and because

there is no violation of fundamental right, thus petition stands non maintainable.

Moreover, the formation of the Triple Talaq (Criminalization) Act, 2018 has added a new

dimension to the existing deformity in the society against the dignity of the Muslim women.

The Triple Talaq (Criminalization) Act, 201810 has explicit power to hear and criminalize

matters concerning the sacred ties in questioned and also dismantles the dignity of the women

which is the other half of the pious relation and also forms the core of the various decisions of

the purposeless multiplicity of marriage. When an authority has been specifically set up to

criminalize such sinful act and also the issues pertaining to the nature of this petition, the

petitioner need not waste the time of this Hon’ble Court especially after doing an act that has

subjected his other half to hardships in her life. R.M. Sahai, J. the Hon'ble Judge11 observed

that the Freedom of religion is the core of our culture. Even the slightest deviation shakes the

social fibre. It was further remarked that the Government would be well advised to entrust the

responsibility to the Law Commission which may in consultation with Minorities

Commission examine the matter and bring about a comprehensive legislation in keeping with

8
Romesh Thapar v. Union of India, AIR 1950 SC 124.
9
I R Coelhpo v. State of T.N. AIR 2007 SC 861.
10
Moot proposition, para 5.
11
Mohd. Ahmed Khan v. Shah Bano Begum & Ors.1985 2 SCC 556.

____________________________________________________________
2
MEMORANDUM ON BEHALF OF THE RESPONDENTS
 JUSTITIA-2018
____________________________________________________________
modern day concept of human rights for women. And thus the Act was passed, which is now

being challenged by the petitioners, is also such act that now responsibly protects the rights of

the women. The Islam which is pious, progressive and respected religion with rational

outlook cannot be given a narrow concept as has been tried to be done by the alleged

violators of law.12

[ii] It is humbly submitted that the petition that is filled does not involve the interest of public

at large, rather public interest is defined as “a matter of public or general interest does not

mean that which is interesting as gratifying curiosity or a love of information or amusement

but that in which a class of the community have a pecuniary interest, or some interest by

which their legal rights or liabilities are affected”13 "Public Interest is something in which the

public, or some interest by which their legal rights or liabilities are affected. It does not mean

anything the particular localities, which may be affected by the matters in question. Interest

shared by national government…"14

"The expression 'litigation' means a legal action including all proceedings therein initiated in

a Court of law for the enforcement of right or seeking a remedy. Therefore, lexically the

expression "PIL" means the legal action initiated in a Court of law for the enforcement of

public interest or general interest in which the public or a class of the community have

pecuniary interest or some interest by which their legal rights or liabilities are affected." 15 If

not properly regulated and abuse averted, it becomes also a tool in unscrupulous hands to

release vendetta and wreck vengeance, as well. There must be real and genuine public interest

involved in the litigation and not merely an adventure of knight errant borne out of wishful
12
Lily Thomas v. Union of India, AIR 2000 SC 1650.
13
Vol. 4, STROUD, JUDICIAL DICTIONARY (4th edition).
14
BLACK, LAW DICTIONARY (6th edition).
15
The Janta Dal v. H.S. Chowdhary, 1992 (4) SCC 305.

____________________________________________________________
3
MEMORANDUM ON BEHALF OF THE RESPONDENTS
 JUSTITIA-2018
____________________________________________________________
thinking. It cannot also be invoked by a person or a body of persons to further his or their

personal causes or satisfy his or their personal grudge and enmity. Courts of justice should

not be allowed to be polluted by unscrupulous litigants by resorting to the extraordinary

jurisdiction. A person acting bona fide and having sufficient interest in the proceeding of

public interest litigation will alone have a locus standi and can approach the Court to wipe

out violation of fundamental rights and genuine infraction of statutory provisions, but not for

personal gain or private profit or political motive or any oblique consideration.16

[iii] It is humbly submitted in the Hon’ble Court that the law and the policy that the

government makes is questionable when there is violation of fundamental rights of general

public. It has been held that a petition cannot be maintainable if its sole purpose is to question

a policy decision of the Government17also it is neither within the domain of the Courts nor

the scope of the judicial review to embark upon an enquiry as to whether a particular public

policy is wise or whether better public policy can be evolved. Neither are our Courts inclined

to strike down a policy at the behest of a petitioner merely because it has been urged that a

different policy would have been fairer or wiser or more scientific or more logical. It was

submitted in the case of Directorate of Film Festivals vs. Gaurav Ashwin Jain,18 that the

scope of judicial review of governmental policy is now well defined. Courts do not and

cannot act as Appellate Authorities examining the correctness, suitability and appropriateness

of a policy, nor are courts Advisors to the executive on matters of policy which the executive

is entitled to formulate. The scope of judicial review when examining a policy of the

government is to check whether it violates the fundamental rights of the citizens or is

16
Dattaraj Nathuji Thaware v. State of Maharashtra & Ors, (2005) 1 SCC 590.
17
Association of Drugs and Pharmaceuticals v. A.P. Health Development Corporation, Hyd. & Anr., 2002 (2)

ALD 609.
18
2007 (4) SCC 737.

____________________________________________________________
4
MEMORANDUM ON BEHALF OF THE RESPONDENTS
 JUSTITIA-2018
____________________________________________________________
opposed to the provisions of the Constitution, or opposed to any statutory provision or

manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is

erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the

policy, and not the wisdom or soundness of the policy, is the subject of judicial review."19

Unless there is prima facie evidence to prove that exercise of discretion has been arbitrary,

unreasonable or mala fide, the Court cannot step into the shoes of the Government to decide

the validity of a policy. It is a matter of public policy20 that the Court does not permit

litigations on the same issue be raised in perpetuity21, as no public undertaking will ever

succeed if such a practice is encouraged. 22

II. THE TRIPLE TALAQ (CRIMINALIZATION) ACT, 2018 IS

CONSTITUTIONALLY VALID.

The Triple Talaq (Criminalization) Act, 2018 passed by the Parliament criminalizes the

pronouncement of instant triple talaq and inter alia provided that a Muslim husband who

pronounces instant triple talaq shall be liable to be punished with a minimum imprisonment

of 2 years and maximum of 7 years apart from paying compensation to his Muslim wife.23

The Act passed is constitutionally valid and reasonable as it protects the rights of the Muslim

women.

[i] The Triple Talaq (Criminalization) Act, 2018 passed protects the rights of Muslim

Women:-

19
Academy of Nutrition Improvement v. Union of India, JT 2011 8 SC 16.
20
Satyadhyan Ghosal v. Sm. Deorajin, AIR 1960 SC 941.
21
Sushila Devi v. Ramnandan Prasad, AIR 1976 SC 177.
22
Deena Dayal v. Union of India, AIR 1983 SC 1155.
23
Moot proposition, para 5.
____________________________________________________________
5
MEMORANDUM ON BEHALF OF THE RESPONDENTS
 JUSTITIA-2018
____________________________________________________________
There are different modes of talaq which may be described in the following ways:-

1. Talaq ahsan24- This consists of single pronouncement of divorce made during a

tuhr25 followed by abstinence from sexual intercourse for the period of iddat26.

2. Talaq hasan- This consists of three pronouncements made during successive tuhrs,

no intercourse taking place during any of the three tuhrs.

3. Talaq-ul-biddat or talaq-i-badai – This consists of three pronouncements made

during a single tuhr either in one sentence or in separate sentences.27

A talaq may be effected orally or by a written document called a talaknama.28 The talaq-ul-

biddat is the most common and prevalent mode of divorce in this country. 29 In other modes

of talaq, the husband has the opportunity of reconsidering his decision as in these cases talaq

does not become absolute until a certain period has elapsed and he has the option to revoke it

before then. But, the talaq-ul-biddat becomes irrevocable immediately as it is pronounced.30

This form is nowhere mention in the Holy Quran and is recognized by only a few Sunni

schools, most prominently by the Hanafi sect of Sunni Muslims.31 Also, those schools which

recognizes this form described it as a “sinful form of divorce.”32 "This whimsical and

24
AQIL AHMED, MOHAMMEDAN LAW, 168 (26th ed. 2016).
25
Id. Para 3.
26
AQIL AHMED, MOHAMMEDAN LAW, 125 (26th ed. 2016).
27
MULLA, PRINCIPLES OF MAHOMEDAN LAW, § 311 (Iqbal Ali Khan, 21st ed. 2017).
28
MULLA, PRINCIPLES OF MAHOMEDAN LAW, § 310 (Iqbal Ali Khan, 21st ed. 2017).
29
Amir-ud-din v. Khatun Bibi, AIR 1917 All.
30
Supra note 24.
31
AQIL AHMED, MOHAMMEDAN LAW, 169 (26 th ed. 2016).
32
Shayara Bano v. Union of India, 2017 9 SCC 1.

____________________________________________________________
6
MEMORANDUM ON BEHALF OF THE RESPONDENTS
 JUSTITIA-2018
____________________________________________________________
capricious divorce by the husband is good in law, though bad in theology."33 It was also said

that talaq-ul-biddat is theologically improper.34 According to the Holy Quran, the talaq must

be for a reasonable cause and be preceded by attempts of reconciliation between the husband

and the wife by two arbiters, one from the wife's family and the other from the husband's, if

the attempts fail, talaq may be effected.35 But in talaq-ul-biddat, there is no chance of

reconciliation between the husband and wife as stated in Quran36.

Also, the practice of ‘talaq-ul-biddat’ permits a male spouse an unqualified right, to severe

the matrimonial tie. The right to divorce a wife, by way of triple talaq, could be exercised

without the disclosure of any reason, and in fact, even in the absence of reasons.37

A female spouse has no say in the matter, inasmuch as, ‘talaq-ul-biddat’ could be

pronounced in the absence of the wife38, and even without her knowledge.39 If the words refer

to the wife it is sufficient for the divorce.40 The divorce pronounced by way of triple talaq

was final and binding, between the parties. These actions vested an arbitrary right in the

hands of the husband, and as such, violated the equality clause enshrined in Article 14 of the

Constitution. It is very often used as a weapon by men not to pay maintenance. For e.g.

33
Shamim Ara v. State of U.P. & Anr, 2002 3 KLT 537 SC.
34
Sarabhai v. Rabai Bai, (1906) 30 Bom 537.
35
Must. Rukia Khatun v. Abdul Khalique Lasker, (1981) 1 GLR 375.
36
ABDULLAH YUSUF ALI, THE HOLY QURAN: TEXT TRANSLATION & COMMENTARY, Sura IV,

Verse 35 (14th ed. 2016).

____________________________________________________________
7
MEMORANDUM ON BEHALF OF THE RESPONDENTS
 JUSTITIA-2018
____________________________________________________________
Daniel latifi case,41 Shah Bano case42etc. Is it not unjust to give divorce only because one

does not want to take up his responsibilities? “Equality before the law and equal protection

of the laws”43 which is provided as a Fundamental Right to every citizen of India was clearly

denied to the female spouse in the matter of pronouncement of divorce by the husband by

adopting the procedure of ‘talaq-ul-biddat’. Further Constitution provides a clear restraint on

discrimination, on the ground of sex.44 But, ‘talaq-ul-biddat’ violated the aforesaid

fundamental right, which postulates equality between men and women.

A woman has to be regarded as an equal partner in the life of a man.45 A society that does not

respect its women, cannot be treated to be civilized. Civilization of a country is known how it

respects its women.46 But it is always seen that Indian women have suffered and are suffering

discrimination in silence. Self-sacrifice and self-denial are their nobility and fortitude and yet

they have been subjected to all inequities, indignities, inequality and discrimination. 47 All

forms of discrimination on ground of gender is a violation of fundamental freedom and

human rights.

‘Nikah’ or the Muslim marriage is based on offer and acceptance between man and woman.48

Unless both agree, there cannot be Nikah. On the same analogy, declaration of talaq or

divorce by the husband must be done in the presence of the woman, i.e. the wife, and only in

41
Danial Latifi v. Union of India, (2001) 7 SCC 740.
42
Supra note 11.
43
INDIA CONST. art. 14.
44
INDIA CONST. art. 15.
45
Aaqil Jamil & 2 Others v. State of U.P. & Anr., AIR 2017 All.
46
Voluntary Health Association of Punjab v. Union of India, (2013) 4 SCC 1.
47
Madhu Kishwar v. State of Bihar, (1996) 5 SCC 125.
48
AQIL AHMED, MOHAMMEDAN LAW, 114 (26th ed. 2016).

____________________________________________________________
8
MEMORANDUM ON BEHALF OF THE RESPONDENTS
 JUSTITIA-2018
____________________________________________________________
case both agree, talaq should be executed.49 This could be a step towards providing equality

to the Muslim women. If this happens and rights of Muslim women would not be violated

then the legislature would not have to interfere in the practices. And if these does not stop

then the legislature can enact laws for them under Art. 15(3) of the Constitution of India

which states “Nothing in this article shall prevent the State from making any special

provision for women and children”. This Clause (3) is placed in Article 15 with the object to

strengthen and improve the status of women.50

A divorce pronounced under mistaken belief is said to be a valid divorce. Similarly, a divorce

pronounced under compulsion or jest or inadvertently or even by mere slip of tongue is

valid.51 And, triple talaq is instantly irrevocable as pronounced. So, if the husband and wife

wants to remarry then the wife needs to go through the process of halala52 which means that

she has to marry another person, also consummate her marriage, take a divorce and observe

the iddat period before marrying the same person. In other forms of divorce there is time for

reconciliation so this situation might not arise in those cases.

So does this not puts a question to the dignity of a woman?

Art. 21 provides that “No person shall be deprived of his life or personal liberty except

according to procedure established by law,” which is a fundamental right meaning every

person has a right to life and personal liberty. In Maneka Gandhi case53, the Hon'ble Supreme

49
Farooq Khan v. Chief of the Army Staff & Ors, 2016 SCC 450.
50
Govt. of Andhra Pradesh v. P.B.Vijaykumar & Anr, AIR 1995 SC 1648.
51
AQIL AHMED, MOHAMMEDAN LAW, 167 (26th ed. 2016).
52
Mrs Sabah Adnan v. Adnan Sami Khan, 2011 3 K.L.T. SN 11.
53
Maneka Gandhi v. Union of India (1978) 1 SCC 248.

____________________________________________________________
9
MEMORANDUM ON BEHALF OF THE RESPONDENTS
 JUSTITIA-2018
____________________________________________________________
Court held that the concept of right to life and personal liberty, granted under Article 21 of

the Constitution could include "the right to live with dignity".

It can be said that, no person can be persecuted, tortured, humiliated or dishonoured in the

garb of Personal Law and nothing can be done which may affect dignity and quality of life of

a man or a woman under the garb of Personal Law. Women of every religion of the country

are protected by Constitution of India and no person has right to go against constitutional

spirit in the shadow of Personal Law.

Concept of equality enshrined in Article 14, concept of non-discrimination on the ground of

sex etc. enshrined in Article 15(2) and the concept of right to life and personal liberty which

includes the right to live with dignity as enshrined in Article 21 read with preamble of the

Constitution, are the foundation and the basic features of the Constitution. Breach of any of

these, by any law or practice, shall render such law or practice to be unconstitutional.54

Whether it is collective right of citizens or individual right, both are protected by philosophy

and ethos of the Constitution.

Further, it is claimed that Indian Muslims are governed by Shariat. But the Shariat as

practised currently in different parts of the country is undefined and unwritten. It is subject to

multiple interpretations and misinterpretations, one of which says, the triple talaq is

considered good in law, though bad in theology. It can be considered that the Muslim

Personal Law (Shariat) Application Act, 1937, by providing for the application of Muslim

Personal Law in matters relating to marriage where the parties are Muslims, conveyed a

wrong impression that the law sanctions this sinful form of talaq which form is grossly

injurious to the human rights of the married Muslim women and offends Articles 14, 15 and

21 of the Constitution. The assumptions and beliefs upon which such a form of divorce is

54
INDIA CONST. art. 13.

____________________________________________________________
10
MEMORANDUM ON BEHALF OF THE RESPONDENTS
 JUSTITIA-2018
____________________________________________________________
recognized are factually false, scientifically untenable and contrary to the spirit and

provisions of the Constitution. Also, this form of divorce has been declared to be a spiritual

offence in the Quran and giving recognition to that form interferes with the Muslim women's

right to profess and practice her religion, inasmuch as it unleashes a spiritual offence on her

and is thus, violative of Article 25 of the Constitution.55

[ii] The Act passed does not violate fundamental rights of Muslim husbands:-

“Religion is the belief which binds spiritual nature of men to super-natural being. It includes

worship, belief, faith, devotion etc, and extends to rituals. Religious right is the right of a

person believing in a particular faith to practice it, preach it, and profess it.”56

Art. 25(1) of the Constitution of India states “Subject to public order, morality and health and

to the other provisions of this part, all persons are equally entitled to freedom of conscience

and the right freely to profess, practice and propagate religion.” The use of expression

"subject to public order, morality, health and other provisions of this part" in Article 25(1)

per se shows that freedom of conscience and free profession, practice and propagation of

religion is not absolute and it is always subject to and controlled by the provisions relating to

public order or morality and health and it is further subject to other provisions of part III of

the Constitution.

But, merely because a practice has continued for long, then that by itself cannot make it valid

if it has been expressly declared to be impermissible. The whole purpose of the 1937 Act was

55
A.S.Parveen Akthar v. The Union of India, AIR 2002 Mad.
56
P.M.A. Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001.

____________________________________________________________
11
MEMORANDUM ON BEHALF OF THE RESPONDENTS
 JUSTITIA-2018
____________________________________________________________
to declare Shariat as the rule of decision and to discontinue anti-Shariat practices with respect

to subjects enumerated in Section 2 which includes talaq.57

Talaq-ul-biddat is not a mode recognised in the Quran, and that the Holy Book provides for

reconsideration and reconciliation before recognizing divorce as irrevocable. Referred to

Chapter IV verse 35 of Quran which says, "Any if you fear a breach between the two, appoint

an arbiter from his people and an arbiter from her people. If they desire agreement, God will

effect harmony between them."58 This form cannot be permitted only on the basis that is has

been followed since 1400 years. Divorce under Muslim law can be held to have been duly

effected only when it does not violate the injunctions of Quran, and the correct law of talaq

as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded

by attempts at reconciliation by two relations, one each of the parties, is an essential

condition precedent to talaq.59

The Holy Quran expressly forbids a man to seek pretext for divorcing his wife, so long as she

remains faithful and obedient to him.60

It further leads one to think that talaq-ul-Bidaat or talaq against the injunctions of Quran is a

sin. It is some act which is tantamount to think against the injunction of Allah and so immoral

and irreligious. If it is irreligious than talaq-ul-bidaat definitely does not come eviction the

frame work of the expression religion or "religious freedom". Right to religion under Article

25 of the Constitution does not extend to the deeds, practice, customs, acts or actions

57
The Muslim Personal Law (Shariat) Application Act, 1937, No. 26, Acts of Parliament, 2017.
58
Supra note 49.
59
Jiauddin Ahmed v. Anwara Begum, 1981 1 OLR 358.
60
ABDULLAH YUSUF ALI, THE HOLY QURAN: TEXT TRANSLATION & COMMENTARY, (14 th ed.

2016).

____________________________________________________________
12
MEMORANDUM ON BEHALF OF THE RESPONDENTS
 JUSTITIA-2018
____________________________________________________________
including acquisition or creation of property by irreligious or by immoral means or means or

modes running in conflict with the basic tennets and ordains of the Holy Book of that religion

simply on the pretence of name of that religion, so talaq-ul-bidaat is not a religious right. It

appears to be against the basic tennets of Islam or Holy Quran61.

In order to treat a practice as a part of religion, it is necessary that it be regarded by the said

religion as essential and integral part this means that purely secular practices which may not

be an essential part of a religion are not protected and can be abrogated by legislation subject

to other Fundamental Rights.62 Because regarding the laws relating to marriage and divorce

cannot be considered to be covered or protected by or under the umbrella of freedom of

conscience of free profession/practice or propagation of religion i.e., Article 25 will not

prevent the State Legislature from enacting any law or modifying the State law in regard to

the subject matter of marriage and divorce regulating or restricting the secular activities or for

providing something for the social welfare and reform, even otherwise as well any existing

law relating to marriage, divorce for a moment may be taken to be covered by the freedom of

religion if the same makes the provision derogatory to public order, morality or health or in

conflict with the other provisions of Chapter III.63

III. THE INITIATION OF CRIMINAL PROCEEDINGS AGAINST

PETITIONER IS LEGALLY TENABLE.

The practice of triple talaq is neither approved by the Holy Quran nor by Shariat and the act

is also not protected under article 25. Also, the legislature can make laws regarding the

religious conventions for the welfare of the society.

61
Rahmat Ullah & Khatoon Nisa v. State of U.P. & Ors, AIR 1994 All.
62
M.P.JAIN, INDIAN CONSTITUTIONAL LAW, 1248 para 4 (7th ed. 2014).
63
Ram Prasad v. State of U.P., AIR 1957 Allahabad 411.

____________________________________________________________
13
MEMORANDUM ON BEHALF OF THE RESPONDENTS
 JUSTITIA-2018
____________________________________________________________
The criminalization of behaviour or practices stemming from or associated with religious

conventions is not without precedent. The Dowry Prohibition Act, 1961, and the Commission

of Sati (Prevention) Act, 1988, are two instances of penal laws designed to combat abhorrent

behaviour by Hindu men and their families. The criminalization of conduct relating to or

arising from marital relationships is also not uncommon, there are several provisions in the

Indian Penal Code dealing with “offences relating to marriage”.

Also, the practice of triple talaq can be criminalized despite of the fact that in some cases it

might not include mens rea. Ordinarily, the foremost pre-requisite of liability in criminal

cases is the presence of intention- “a guilty mind”. This is supported by the well known

maxim, “Actus non facit reum, nisi mens sit rea”64 According to this maxim the act in itself

does not amount to the guilt of the person; the presence of a guilty mind (mens rea) is of

utmost importance. It is the combination of act and intent which makes a crime. But, in cases

like negligence some acts are also punishable under IPC65 where the mental element i.e. mens

rea is not present. Negligence excludes wrongful intention because negligence and wrongful

intention are mutually exclusive of each other.66 It can be understood by the fact that the

section 304A was inserted in the Penal Code by the Indian Penal Code (Amendment) Act 27

of 1870 to cover those cases wherein a person causes the death of another by such acts as are

rash or negligent but there is no intention to cause death and no knowledge that the act will

cause death.67 Thus it can be said that triple talaq can also be criminalized.

Further, actus reus is required to constitute a crime which means an act or more specifically

an overt act is necessary to occur. In the present case, the practice of triple talaq harms
64
Crisholm v. Doulton, 22 Q.B.D 739.
65
Indian Penal Code, 1860, No. 45, Acts of Parliament, 2017, Sec. 304A.
66
Medical Association v. V.P Shantha & Ors, 1995 6 SCC 651.
67
K D GAUR, TEXTBOOK on INDIAN PENAL CODE, 700 (6 th ed. 2016).

____________________________________________________________
14
MEMORANDUM ON BEHALF OF THE RESPONDENTS
 JUSTITIA-2018
____________________________________________________________
Muslims Women to a great extent. The practice has a great impact on their status, their

choices, their conduct and their right to life with dignity also denying their fundamental

rights68.

It is not necessary that the harm caused is only the ‘physical’ harm. The word ‘harm’ includes

both mental and physical. As in the case of cruelty under sec. 498A69 “(a) any wilful conduct

which is of such a nature as is likely to drive the woman to commit suicide or to cause grave

injury or danger to life, limb or health (whether mental or physical) of the woman”. The term

cruelty defined includes both physical and mental, to prove that cruelty was caused under

Explanation (a) of the section it is not important to show or put forth that the woman was

beaten up- abusing her verbally, denying her conjugal rights or even not speaking to her

properly70 would fall into the ambit of mental cruelty. The husband or the relatives of the

husband for cruelty for which there is a punishment which may extend to 3 years and may

also be held liable for fine.71 The pronouncement of triple talaq causes Muslim women

mental harm which again can be made punishable by passing an act which has been done in

the present case.

68
INDIA CONST. Part. III.
69
Indian Penal Code, 1860, No. 45, Acts of Parliament, 2017.
70
Ramesh Dalaji Godad v. State of Gujarat II (2004) DMC 124.
71
L.V. Jadhav v. Shankarrao Abasaheb Pawar, AIR 1983 SC 1219.
____________________________________________________________
15
MEMORANDUM ON BEHALF OF THE RESPONDENTS
 JUSTITIA-2018
____________________________________________________________

PRAYER FOR RELIEF

Wherefore in the light of the issues raised, arguments advanced and authorities cited,

it is humbly requested that this Honourable Court may be pleased to adjudge and declare:

a. The present PIL as not maintainable.

b. The Triple Talaq (Criminalization) Act, 2018 as

constitutional, and legally tenable.

And pass any such order, writ or direction as the Honourable Court deems fit and

proper. For this, the Petitioners shall duty bound pray.

All of which is respectfully submitted

(Counsel for the Respondents)

____________________________________________________________
16
MEMORANDUM ON BEHALF OF THE RESPONDENTS