Memorial On Behalf of Petitioner of Nehru Memorial Law College National Moot Court Competition
Memorial On Behalf of Petitioner of Nehru Memorial Law College National Moot Court Competition
In The Matter of
Fatima.......................................................................Petitioner
V.
Neyaz......................................................................Respondent
Page 2
AIR
SC
SCC
Raj.
Cr.L.J
V.
Cr.P.C
SCR
Anr.
Cal.
Edn.
Para.
U.P
Vol.
Sec.
All.
Pg.
H.C
S.C
ALJ
1986 Act
M.W
Har.
Pun.
U.P
Page 3
Citation
AIR 1988 Guj. 141
(1998) 3 Crimes 147
AIR 1988
ALJ 2002(5)
5.
Case law
A.A.Abdulla v. A.B. Mohmuna Saiyas Bhai
Ali v. Sufaira
Allar v. Pathu
Arab Ahmadhia Abdulla v. Arab Bail Mohmuna
Saiyadbhai
Bai tahira v. Ali Hasan Fassali
6.
7.
8.
9.
10.
11.
12.
13.
14.
1998(2) D.M.C. 85
15.
16.
17.
18.
Books Referred
S.No.
1.
2.
3.
4.
5.
Name
R.V. Kelkars Criminal Procedure Code, 6th Edition, Eastern Book
Company (2014)
Sarkars Code of Criminal Procedure, 10th Edition, Lexis Nexis (2012)
S.N Mishra Code of Criminal Procedure, 17th Edition, Central Law
Agency
Aqil Ahmads Mohammedan Law, 25th Edition, Central Law Agency
I.A Khans Mohammedan Law, 14th Edition, Central Law Agency
Page 4
S.No.
1.
2.
3.
Name
The Constitution of India,1950
The Criminal Procedure Code, 1973
MuslimWomen (Protection of Rights on Divorce) Act, 1986
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STATEMENT OF JURISDICTION
The Petitioner humbly submits to Honble Supreme Court of India and that the court is
empowered to hear this case by the virtue of Art. 136 of the Constitution of India, 1950.
The Article read as:
Special leave to appeal by the Supreme Court
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces.
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1. Whether the Special Leave Petition sought under Art. 136 is maintainable?
2. Whether petitioner being a Muslim divorced woman can claim maintenance
under section 125 of Criminal Procedure Code, 1973 from her husband?
3. Whether the maintenance contemplated under Section 3(1)(a) of the Act of 1986
is restricted only for the period of iddat?
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1. Whether the Special Leave Petition sought under Art. 136 is maintainable?
It is humbly submitted by the Petitioner that the Honble Supreme Court has the power to
grant special leave under Art.136 of the Constitution of India and the petition filed by the
petitioner is maintainable. The discretionary power of the Court has to be used to remedy
instances of grave injustice and in cases where miscarriage of justice has taken place. The
only limit upon the Honble Court as regards the power of the Court under Art.136 is the
wisdom and good senses of the Judges of the Court. It is the duty of this Court to see that
injustice is not perpetuated or perpetrated by decisions of Courts. In the present case, grave
injustice has been done to the petitioner which requires the apex courts special power to
remedy the injustice.
2. Whether petitioner being a Muslim divorced woman can claim maintenance
under section 125 of Criminal Procedure Code, 1973 from her husband?
It is most humbly submitted before this honourable court that the petitioner is entitled to
claim maintenance under section 125 CrPC for it is a general law applicable to all
irrespective of any religion enacted to provide speedy and effective remedy, to needy and
vagrant people who are left on the mercy of Almighty without having any means for their
survival. Section 125 being civil nature is purposely kept in this code to provide strict
compliance to the rights of women and for their welfare and to protect the interests of
divorced women who is left at the mercy of the husband. The apex court in its plethora of
judgements has reiterated this aspect that the Muslim women is equally entitled to claim
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Thus, the
Petitioner stand aggrieved by the impugned judgement and seeks remedy from the apex
Court under Art. 136.
The Honble Court has rightly declined to fetter its discretionary powers under Art. 136
by laying down principles and rules to govern the same. 3 The Court further observed
that .the whole intent and purpose of this Art. is that it is the duty of this Court to see
that injustice is not perpetuated or perpetrated by decisions of Courts and tribunals
because certain laws have made the decisions of these Courts or tribunals final and
conclusive.4 Despite earlier pronouncements that the jurisdiction under Art. 136
should be utilized for determining only substantial questions of law and not redeeming
injustice in individual cases, the power has been utilized increasingly to determine
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Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, AIR 2004 SC 1815.
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Section 125
being civil nature is purposely kept in this code to provide strict compliance to the rights of
women and for their welfare and to protect the interests of divorced women who is left at the
mercy of the husband. The apex court in its plethora of judgements has reiterated this aspect.
The provisions of chapter 9 of crpc apply whatever may be the personal law by which the
parties are governed.6 Section 125 is applicable to all irrespective of any religion. 7A
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2.3 Excluding divorced Muslim women from the protection of section 125 is
discriminatory, un-Islamic and undermines the secular character of the constitution.
Islam is the religions which had placed women and their rights on such a high footing that
respect and dignity flows from them. Innumerable rights have been conferred upon them. No
personal law of any religion can undermine the rights of women, of which she is legally and
morally entitled and in Islam, the assurance is greatest. The Act of 1986 provides for a
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3.1 Language of Section 3(1)(a) of the Act clearly proves the intention of the legislature.
Section 3(1)(a) of the 1986 Act provides that a reasonable and fair provision and
maintenance to be made and paid to divorced wife within the iddat period by her former
husband. There is no ambiguity in the language of the Section which simply states that the
husband has to provide for all reasonable and fair claims for the maintenance of wife within
the iddat period keeping in mind her future needs. He has to provide maintenance within the
period of iddat which must be fair and just for the dignified survival of woman. If he fails or
neglects to provide, then it does not mean that he is exempted from his liability as soon as the
iddat period ceases. The liability of the husband is beyond iddat period also, to ensure that his
former wife is not living in destitution and vagrancy. The words Within iddat period is
purposely kept in the code to ensure speedy and effective claim for the divorced wife who
has no other means for her survival but maintenance. What is important is that the wife
should get fair and reasonable claim for her maintenance whether within iddat period or after
that. Welfare and interest of women is more important than focussing on iddat period.
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18
19
Karim Abdul Rehman Shaikh Vs. Shehnaz Karim Shaikh others (Full Bench) 2000(5) BomCR758,
2000(102(3) BOMLR105
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20
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Direct the respondent to abstain from doing, further, any act of cruelty or
harassment to the petitioner.
Or grant such other relief as the Court may deem fit in the light of justice,
equity and good conscience.
And For This Act Of Kindness The Petitioner Shall Duty Bound Ever
Pray.
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