BEFORE THE HON’BLE SUPREME COURT

of

INDICA

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDICA

(WRIT PETITION NO._____ /2019):

IN THE MATTER OF:

ALL INDICA MUSLIM ASSOCIATION

(AIMA)……….........................................................................................................PETITIONER

V.

THE GOVERNMENT OF
INDICA.................................................................................................................RESPONDENT

TEAM CODE- 46

MEMORANDUM ON BEHALF OF THE RESPONDENT

DRAWN AND FILED BY THE COUNSEL FOR THE RESPONDENT

Intra University Moot Court Competition, 2019 TC 46

TABLE OF CONTENT

Contents
LIST OF ABBREVIATIONS ......................................................................................................... 2

INDEX OF AUTHORITIIES ......................................................................................................... 3

STATEMENT OF JURISDICTION............................................................................................... 5

STATEMENT OF FACTS ............................................................................................................. 6

STATEMENT OF ISSUES ............................................................................................................ 7

SUMMARY OF ARGUMENTS .................................................................................................... 8

ARGUMENTS ADVANCED ........................................................................................................ 9

PRAYER ....................................................................................................................................... 12

Memorandum on behalf of Petitioner Page 1 of 14

Intra University Moot Court Competition, 2019 TC 46

LIST OF ABBREVIATIONS

AIR All India Reporter

Art. Article

SC Supreme Court Cases

v. Versus

UOI Union of India

Sec. Section

Bill Muslim Women (Protection of Rights on

Marriage) Bill, 2019

Constitution Constitution of Indica

SC Supreme Court

Mad Madras

Bom Bombay

All Allahabad

Memorandum on behalf of Petitioner Page 2 of 14

Intra University Moot Court Competition, 2019 TC 46

INDEX OF AUTHORITIIES
Table of Cases

Sl. No. List of Cases Citations Page No.

1. Sant Ram & Ors V. Labh Singh & AIR 1965 Cal 26 9
Ors
2. Supply Corporation V. Union of AIR 1956 Cal 26 10
India Supreme court
3. State of Bombay v. Narasu Appa AIR 1952 Bom 84 10
Mali

4. Singh v. Mathura Ahir (1981) 3 SCC 689 10

5. Maharshi Avadhesh v. Union 1994 Supp (1) SCC 10

713

6. Danial Latifi v. Union of India (2001) 7 SCC 740 10

7. John Vallamattom v. Union of (2003) 6 SCC 611 11

India

8. Masilamani Mudaliar v. Idol of Sri (1996) 8 SCC 525 11

Swaminathaswami
Swaminathaswami Thirukoi

9.
10.
11.
12.

Memorandum on behalf of Petitioner Page 3 of 14

Intra University Moot Court Competition, 2019 TC 46

Legislation

Sl. No. List of Legislation

1. The Constitution of India, 1950

2. Muslim Personal Law (Shariat) Application Act, 1937

Legal Data Base

Sl. No. List of Legal Databases

1. Manupatra

2. SCC Online

3. Lexis Nexis

4. Supreme Court Case Laws

5. JSTOR

Books

Pg. No. Books

1. 1. Shukla V.N, Constitution of India, 11th edition 2008, Eastern
Book Company.
2. 2. Jain M P, Indian Constitutional Law, 8th edition 2018, Lexis
Nexis.
3. 3. Basu D D, Commentary on the Constitution of India, 8th edition
2007, Wadhwa Publication Nagpur.

Memorandum on behalf of Petitioner Page 4 of 14

Intra University Moot Court Competition, 2019 TC 46

STATEMENT OF JURISDICTION

The Hon’ble Supreme Court State of Indica has the jurisdiction in this matter under

Article 32 of the constitution1 of Indica which reads as follows:

“32. Remedies for enforcement of rights conferred by this Part-

(1) The right to move the 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
the 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.”

1
Constitution of Indica, Pari Materia to The Constitution of India ,1950 (Hereinafter referred as Constitution)

Memorandum on behalf of Petitioner Page 5 of 14

Intra University Moot Court Competition, 2019 TC 46

STATEMENT OF FACTS

 The practice of Triple Talaq by the Muslim community of the state of Indica had
generated lots of debate, in both legal and political circles. Demands had been made to
declare the practice as being unconstitutional.
 The supporters of Triple Talaq on the other hand argued the constitutional protection
accorded to the personal law.
 Amidst all this debate, the government put forward a Bill in the Parliament, namely, The
Muslim Women (Protection of Rights on Marriage) Bill, 2019 which is passed by both
the Houses of Parliament and also receives the assent of the President to become a law.
 Aggrieved by the Bill2, a petition is filed by All India Muslim Association (AIMA),
challenging the constitutionality of the Bill.
 The present Bill in question declares the Triple Talaq void and illegal and ensures
protection of Rights of Married Muslim women.

2
The Muslim Women (Protection of Rights on Marriage) Bill, 2019

Memorandum on behalf of Petitioner Page 6 of 14

Intra University Moot Court Competition, 2019 TC 46

STATEMENT OF ISSUES

ISSUE I:

WHETHER TRIPLE TALAQ IS PROTECTED UNDER ARTICLE 13 OF THE

CONSTITUTION OF INDICA?

ISSUE II:

WHETHER ADHERENCE OF MUSLIM PERSONAL LAW COMES WITHIN RELIGIOUS

FREEDOM AND THEREFORE PROTECTED UNDER ARTICLE 25 OF THE
CONSTITUTION?

Memorandum on behalf of Petitioner Page 7 of 14

Intra University Moot Court Competition, 2019 TC 46

SUMMARY OF ARGUMENTS
Issue 1

Whether Triple Talaq is protected under Article 13 of the Constitution of Indica?

It is most humbly and respectfully submitted before this Hon,ble court that the Muslim Personal
Law (Shariat) Application Act, 1937 seeks to recognize and enforce talaq-e-biddat through
Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, as only word talaq is
included in it. So, all forms of talaq existing in Muslim societies were sought to be enforced by
section 2 of the 1937 Act. Therefore, the Muslim Personal Law (Shariat) Application Act, 1937,
can be bracketed as ‘laws in force’ within the meaning of Article 13(3)(b) and therefore, judicial
review of this Act of 1937, may be carried out by higher judiciary, if it is inconsistent with
fundamental rights. the personal law comes within the ambit of Art 13 of constitution and is
capable of judicial review by Hon’ble Supreme Court.

Issue 2

Whether adherence of Muslim Personal Law comes within religious freedom and therefore
protected under Article 25 of the Constitution?

Memorandum on behalf of Petitioner Page 8 of 14

Intra University Moot Court Competition, 2019 TC 46

ARGUMENTS ADVANCED

Issue 1:

Whether Triple Talaq is protected under Article 13 of the Constitution of Indica?

 It is most humbly and respectfully submitted before this Hon,ble court that Section 2 of
the Muslim Personal Law (Shariat) Application Act, 1937, provides “notwithstanding
any custom or usage to the contrary, in all questions (save questions relating to
agricultural land) regarding intestate succession, special property of females, including
personal property inherited or obtained under contract or gift or any other provision of
Personal Law, marriage, dissolution of marriage, including talaq, ila,zihar, lian, khula and
mubaraat, maintenance,dower, guardianship, gifts, trusts and trust properties, wakfs(other
than charities and charitable institutions and charitable and religious endowments) the
rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law
(Shariat)’’
Thus, the 1937 Act seeks to recognize and enforce talaq-e-biddat through Section 2 of
the Muslim Personal Law (Shariat) Application Act, 1937, as only word talaq is included
in it. So, all forms of talaq existing in Muslim societies were sought to be enforced by
section 2 of the 1937 Act. Therefore, the Muslim Personal Law (Shariat) Application Act,
1937, can be bracketed as ‘laws in force’ within the meaning of Article 13(3)(b) and
therefore, judicial review of this Act of 1937, may be carried out by higher judiciary, if it
is inconsistent with fundamental rights.

 It is humbly submitted that all personal laws (un-codified laws) are to be declared as
‘laws in force’ under Article 13. This is the only panacea against all forms of
discrimination existing in personal laws of all religious communities. Personal laws have
to pass the test of constitutionality. The Supreme Court in Sant Ram & Ors V. Labh
Singh & Ors3 stated that custom or usage having in the territory of India the force of law

3
AIR 1965 Cal 26

Memorandum on behalf of Petitioner Page 9 of 14

Intra University Moot Court Competition, 2019 TC 46

must be held to be contemplated by the expression ‘all laws in force’, to hold otherwise
would restrict the operation of the first clause in such a way that none of the things
mentioned in the first definition would be affected by the fundamental rights. In Builders
Supply Corporation V. Union of India, Supreme court4 has now clarified that the
expression “laws in force’’ used in Article 13 includes not statutory law but also custom,
usage and even common law in England. Therefore, the personal law comes within the
ambit of Art 13 of constitution and is capable of judicial review by Hon’ble Supreme
Court.
 Further the counsel on behalf of the respondent would like to contend that, that there was
an apparent misconstruction, which had led to the conclusions drawn by the Bombay
High Court in State of Bombay v. Narasu Appa Mali5. It is submitted before this Hon’ble
court that “Personal Laws” ought to be examined, in the light of the overarching goal of
gender justice and dignity of women. The underlying idea behind the preservation of
“Personal Laws” was to safeguard the plurality and diversity among the people of India.
However, the sustenance of such diverse identities cannot be a pretext for denying
women their rightful status and gender equality.

 It is further submitted that Personal Law is a part and parcel of “law” within the meaning
of Article 13. And therefore any such law (Personal Law) which is inconsistent with
fundamental rights would have to be considered void. It was further submitted, that the
interpretation of the Bombay High Court in Narasu Appa Mali case, to the effect that
Article 13 of the Constitution, would not cover “Personal Laws” warranted
reconsideration.
 Pertinently, despite this ruling that was later followed in Krishna Singh v. Mathura
Ahir6and Maharshi Avadhesh v. Union of India7 , the Supreme Court has actively tested
Personal Laws on the touchstone of fundamental rights in cases such as:

4
AIR 1956 Cal 26

5
AIR 1952 Bom 84

6
(1981) 3 SCC 689

7
1994 Supp (1) SCC 713

Memorandum on behalf of Petitioner Page 10 of 14

Intra University Moot Court Competition, 2019 TC 46

1. Danial Latifi v. Union of India8 : A Constitutional Bench of this Court gave a

categorical finding that in view of their interpretation of the Muslim Women
(Protection of Rights on Divorce) Act, 1986 the provisions of this Act were not in
violation of Articles 14 & 21 of the Constitution.

2. John Vallamattom v. Union of India9 : a three Judge Bench of the Supreme Court was
considering the Constitutional validity of S. 118 of the Indian Succession Act, 1925, a
pre Constitutional personal law applicable essentially to Christians and Parsis. In light
of Ahmedabad Women's Action Group (Supra) and other Judgments, the Supreme
Court could have very easily dismissed the matter by simply holding that this law,
being a personal law and being a pre Constitutional law was not "law in force" as per
Article 13 of the Constitution of India and thus not susceptible to challenges on
grounds of violation of fundamental rights. But instead, the Court went into its
Constitutional validity and struck it down as being violative of Article 14 of the
Constitution.

3. Further, in C.Masilamani Mudaliar v. Idol of Sri Swaminathaswami

Swaminathaswami Thirukoi10, this Court had adopted a contrary position to Narasu
Appa Mali case and had held: (C. Masilamani case [C. Masilamani Mudaliar v. Idol
of Sri Swaminathaswami Swaminathaswami Thirukoil, (1996) 8 SCC 525] , SCC p.
538, para 26)
“26. … But the right to equality, removing handicaps and discrimination against a Hindu
female by reason of operation of existing law should be in conformity with the right to
equality enshrined in the Constitution and the Personal Law also needs to be in
conformity with the constitutional goal.”

 It is further asserted that this Court had further held: (SCC p. 533, para 15)

8
(2001) 7 SCC 740

9
(2003) 6 SCC 611

10
(1996) 8 SCC 525

Memorandum on behalf of Petitioner Page 11 of 14

Intra University Moot Court Competition, 2019 TC 46

“15. … Personal laws are derived not from the Constitution but from the religious
scriptures. The laws thus derived must be consistent with the Constitution lest they
become void under Article 13 if they violate fundamental rights.”

 It is significant to note, that this case concerned the inheritance rights of Hindu women.
In view of the aforesaid, it is humbly submitted, that the observations in Narasu Appa
Mali case, that Personal Law was not covered under Article 13, was incorrect and not
binding upon this Court.

PRAYER

In the light of the issues raised, arguments advanced and authorities cited, may this Hon’ble
Court be pleased to issue a writ, order or direction in the nature of Mandamus or otherwise
declaring:
1. That Talak-e-biddat is protected under Art. 13 of the Constitution;
2. That adherence of Muslim Personal Law comes under Freedom of Religion and is thus
protected under Art. 25 of the Constitution.

Memorandum on behalf of Petitioner Page 12 of 14

Intra University Moot Court Competition, 2019 TC 46

3. That the Bill passed by the Parliament in unconstitutional.

AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.

And for this, the Petitioner as in duty bound, shall humbly pray.

Sd/-

COUNSEL FOR THE PETITIONER

Memorandum on behalf of Petitioner Page 13 of 14