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4th Manipal Ranka National Moot Court Competition 2018 [M135]

BEFORE THE HON‟BLE SUPREME COURT OF INDIA

WRIT PETITION U/A 32 OF CONSTITUTION OF INDIA

Petition _________No. of 2018

WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA SEEKING A


WRIT OR ORDER OR DIRECTION IN THE NATURE OF CERTIORARI DECLARING
THE PRACTICES OF TALAQ-E-BIDAT, POLYGAMY UNDER MUSLIM PERSONAL
LAWS AS ILLEGAL, UNCONSTITUTIONAL FOR BEING VIOLATIVE OF ARTICLES 14,
15, 21 AND 25 OF THE CONSTITUTION, AND TO PASS SUCH FURTHER ORDERS AS
THIS HON‟BLE COURT MAY DEEM APPROPRIATE TO PROVIDE A LIFE OF DIGNITY
UNMARRED BY ANY DISCRIMINATION TO MUSLIM WOMEN.

Sanaya Begum…………………………………………………...Petitioner
R/o Lucknow
…….VERSUS…….

1. Shri Rizwan Ahmad, …………………………………………...Respondent


S/o Iqbal Ahmad,
R/o Lucknow

2. Union of India,
Represented by the Secretary,
Ministry of Women and Child Development,
Shastri Bhawan, „A‟ Wing,
Dr. Rajendra Prasad Road,
New Delhi - 110 001.

3. Ministry of Law and Justice,


Represented by the Secretary,
Department of Legal Affairs,
Shastri Bhawan, „A‟ Wing,
Dr. Rajendra Prasad Road,
New Delhi - 110 001

MOST RESPECTFULLY SUBMITTED,


COUNSELS APPEARING ON THE BEHALF OF THE PETITIONER.

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TABLE OF CONTENTS
List of Abbreviations……………………………………………………………..……... 3

Index of Authorities………………………………………………………………..……. 5

Statement of Jurisdiction……………………………………………………………..…. 8

Statement of Facts…………………………………………………..…………………… 9

Issues Raised……………………………………………………..……………………. ... 13

Summary of Arguments…………………………………………..……………………… 14

ARGUMENTS ADVANCED………………………………………..…………………. 17

I.THE PERSONAL LAW IS “LAW” AND “LAWS IN FORCE” WITHIN THE


MEANING OF ARTICLE 13 OF CONSTITUTION OF INDIA AND HENCE
MUSLIM PERSONAL LAW IS CAPABLE OF CHALLENGE ON THE GROUND
OF VIOLATION FUNDAMENTAL RIGHTS UNDER ARTICLE 32…………….17

[A.] Personal law a ―law‖ or ―laws in force‖ within the meaning of Art. 13…….18

II.THE DIVORCE OF INSTANT NATURE CANNOT BE TREATED AS “RULE OF


DECISON” UNDER SHAIRA……………………………………………….…..23

[A.] Divorce of instant nature cannot be treated rule of decison‖ under


shaira………………………………………………………………….……………...24
[B.] Instant divorce is ―good in law but bad in theology………………………......28
III.TALAQ-E-BIDDAT THAT IS CLAIMED TO BE A PART OF MUSLIM
PERSONAL LAW AND PROTECTED BY SECTION 2 OF MUSLIM PERSONAL
LAW (SHARIAT) APPLICATION ACT, 1937 VIOLATE THE FUNDAMENTAL
RIGHTS OF MUSLIM WOMEN UNDER ARTICLES 14, 15 AND 21 OF THE
CONSTITUTION…………………………………………………………………..28

[A.] Triple Talaq violates articles 14 and 21………………………………..……...29

[B.] Impunged practices voilates art. 15………………………………………………33


[C.] Obligations under CEDAW………………………………………………………..34
IV.THE PRACTICE OF „TALAQ-E-BIDDAT‟ CANNOT BE PROTECTED UNDER
THE RIGHTS GRANTED TO RELIGIOUS DENOMINATIONS (OR ANY SECTIONS
(THEREOF) UNDER ARTICLES 25(1), 26(B) AND 29 OF
THECONSTITUTION……………………………………………………..............…...35

V. THE FIFTH MARRIAGE OF RIZWAN AHMED WITH AFREEN


REHMAN IS NOT VALID AND HE SHOULD BE PROSECUTED FOR AN
OFFENCE OF RAPE AND KINANPPING. V. THE FIFTH MARRIAGE OF

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RIZWAN AHMED WITH AFREEN REHMAN IS NOT VALID AND HE SHOULD


BE PROSECUTED FOR AN OFFENCE OF RAPE AND KINANPPING……….43

[A.] Fifth marriage of rizwan ahmed with afreen rehman is not


valid………………………………………………………………………...…..43

[B.] Rizwan Ahmed should be prosecuted for an offence of rape and kinanpping….44

PRAYER………………………………………………………….…………..……………. 46

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LIST OF ABBREVIATIONS

1. A.P Andhra Pradesh

2. AIHC All India High Court Cases

3. AIR All India Reporter

4. Art. Article

5. Bom. Bombay

6. Cal. Calcutta

7. CEDAW Convention on Elimination of All Formsof


Discrimination against Women

8. Cl. Clause

9. Cr.P.C. Code of Criminal Procedure

10. Del. Delhi

11. Ed. Edition

12. Hon‟ble Honorable

13. I.P.C. Indian Penal Code

14. MH.LJ Maharashtra Law Journals

15. MP Moot Proposition

16. No. Number

17. Pat. Patna

18. R/w Read with

19. Sec. Section

20. U/art. Under Article

21. U/s. Under Section

22. v. versus

23. & And

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INDEX OF AUTHORITIES

I. CASES

1. Abdur Rahim Undre v. Padma Adbur Rahim Undre, AIR 1982 Bom 341

2. A S Naryana Deekshitulu v. State of AP, 1996 (9) SCC 548

3. Bennett Coleman v UOI, AIR 1973 SC 106

4. Bijoe Emmanuel and Ors. v. State of Kerala and Ors, (1986) 3 SCC 615

5. Builders Supply Corporation v. Union of India, AIR 1965 SC 1061

6. C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami, (1996) 8 SCC 525

7. Central Inland Water Transport Corpn. v. Brojo Nath Ganguly, (1986) 3 SCC 156

8. Dagdu s/o Chotu Pathan, Latur v. Rahimbi, (2002(3)Mh LJ 602)

9. Daniel Latifi v. UOI, (2001) 7 SCC 740

10. Dinesh Buddha v. State of Rajasthan, (2006) 3 SCC 771

11. Hina v. State of UP, Writ - C No. - 51421 of 2016 in All HC (2016) SCC OnLine All 994

12. Hina v. State of UP, Writ - C No. - 51421 of 2016 in All HC (2016) SCC OnLine All 994

13. John Vallamattom v. Union of India, (2003) 6 SCC 611

14. Khursheed Ahmad Khan, (2015) 8 SCC 439

15. Kunhimohammed v. Ayishakutty, (2010) 2 KLT 71

16. Mary Sonia Zachariah v. Union of India, 1995 (1) KLT 644 FB

17. Manoj Narula v. Union of India, 2014 (9) SCC 1

18. Must. Rukia Khatun v. Abdul Khalique Laskar, (1981) 1 GLR 375 (DB)

19. N. Adithayan v. Travancore Devaswom Board, (2002) 8 SCC 106

20. Najma Bibi v. State of Orissa

21. Naresh Chandra Bose v. S.N. Deb10, AIR 1956 Cal 222
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22. Nazeer v. Shemeema, 2016 SCC online 41064: (2017) 1 KLT 300

23. Panch Gujar Gaur Brahmans v. Amar Singh, AIR 1954 Raj 100

24. Punjab Province v. Daulat Singh, AIR 1946 PC 66

25. R.C. Cooper v. UOI47, AIR 1970 SC 564

26. Re Smt. Amina, AIR 1992 Bombay 214

27. Sarabai v.Rabianai, (1905) SCC Bom 31

28. Sarla Mudgal v. Union of India, (1995) 3 SCC 635

29. Sant Ram v. Labh Singh (Para.4), 7 SCR 756

30. Shamim Ara v. State of Uttar Pradesh & Another, (2002) 7 SCC 518

31. Shayara Bano v. Union of India, (2017) 9 SCC 1

32. Shamim Ara (2002) 7 SCC 518

33. Sheo Kumar Dubey v. Sudama Devi, AIR 1962 Pat 125

34. Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi v. State of U.P, 1997 (4)
SCC 606

35. Sri Jiauddin Ahmed v. Mrs. Anwara Begum, (1981)1 GLR 358

36. State of Bombay v. Bombay Education Society, (1955) 1 SCR 568 : AIR 1954 SC 561

37. State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84

38. Superintendent & Remembrancer of Legal Affairs v. Corporation of Calcutta, AIR 1967
SC 997

39. Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan, 1964 1 SCR 561: AIR 1963 SC
1638

40. United Provinces v. Atiqua Begum, AIR 1941 FC 16

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II. STATUTES

1. CONSTITUTION OF INDIA (1950)


2. CODE OF CRIMINAL PROCEDURE, 1973 (CrPC)
3. INDIAN PENAL CODE (IPC), 1860
4. MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT, 1937
5. OUDH LAW ACT
6. PUNJAB LAW ACT

III. BOOKS
1. CONSTITUIONAL LAW DURGA DAS BASU 8TH EDITION.
2. ELEMENTS OF LAW, 5TH EDITION
3. MATRIMONIAL LAWS AND THE CONSTITUTION: 2ND EDITION., EASTERN LAW
HOUSE (2017)
4. MUHAMMADAN JURISPRUDENCE, TAGORE LAW LECTURES
5. OUTLINES OF MUHAMMEDAN LAW. 4TH EDITION
6. PRINCIPLES OF HINDU LAW, 15TH EDITION
7. PRIVATE INTERNATIONAL LAW, 4TH EDITION
8. TEXT BOOK ON MUSLIM LAW
9. 4TH EDITION., VOL.1, UNIVERSAL LAW PUBLISHING CO. (BY H.M. SERVAI)

IV.LEGDERS REFERRED

1. AIR
2. MH.LJ
3. SCC

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STATEMENT OF JURISDICTION

Petition _________No. of 2018

It is most respectfully submitted that the Petitioner has approached this Hon‟ble Court
under Article 32 of the Constitution of India that reads:

Article 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

3. Without prejudice to the powers conferred on the Supreme Court by clause ( 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
for by this Constitution

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STATEMENT OF FACTS

I. THE PARTIES

Rizvan Ahmed S/o Mohammed Alam (Respondent No.1) aged about 24 years married to
Hindu women named Chandramukhi renamed after marriage Sanaya Begum (Petitioner)
aged about 20 years

II. FACTS

1. Petitioner Chandramukhi a Hindu Girl aged about 20 years, fell in love with
the Respondent No.1 a Muslim boy Rizvan Ahmed aged about 24 years, when
both were students in the same college.

2. Petitioner expressed her desire to marry as per Hindu customs but the
Respondent No.1 insisted to convert her to Islam and have Nikah as per
Shariat.

3. She was renamed as Sanaya Begum. Both ultimately agreed and Nikah was
performed in the year 2010 with grand ceremonies as per Muslim customs.
From their wedlock they had one son Mohammed Irfan and a daughter
Shayara Bano.

4. In 2013 the Respondent No.1 had a second marriage with Umaira Naaz, aged
20 years, in spite of objection raised by the Petitioner his first wife. From the
second wife he has one son aged about 3 years.

5. In 2016 he again had a third marriage with Gulshan Parveen. Separate


apartments were allotted to each wife in posh Mumtaz Mahal with common
entrance to each wife under security.

6. He wanted to have another marriage to which Petitioner his first wife objected.
Still he went ahead and married his fourth wife named Ishrat Jahan in January,

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2018. He claimed that as per Islamic law he can have 4 wives at a time.
Married life of Rizvan Ahmed was not happy. He used to drink heavily and
enjoyed the company of other women also.

7. Relations between Respondent No.1 and Petitioner became strained. He


started neglecting her and their children. Due to this Petitioner had no option
but to go back to her parental home, who first resisted as she was Muslim, but
ultimately permitted her to stay in her parental house.

8. After that even no efforts were made by Respondent No.1 to reconcile and
bring her back to matrimonial home Mumtaz Mahal. On the contrary her
apartment was opened by Respondent No.1 and, her clothes were sent to her
parental house and he started using this place for objectionable activities.
Further he discontinued maintaining his first wife (the Petitioner) and their
children.

9. On 10.02.2018 Rizvan Ahmed (Respondent No.1) in the presence of two


witnesses Mohammed Yaseen and Ayaaz Ahmed declared that I give „talaq,
talaq, talaq‟, hence I divorce my wife Sanaya Begum. From this date there is
no relation of husband and wife. From to-day I am „haraam‟ and I have
become „naamharaam‟. In future she is free to lead her life. This message was
conveyed on mobile of the Petitioner.

10. A Deed of Divorce duly witnessed by the above stated two witnesses was
executed on 10.02.2018 and its copy was sent by speed-post to the Petitioner
at her parental address. Along with the Deed of Divorce a demand draft of Rs.
51,000/- was sent, which comprises a sum of Rs. 41,000/- towards payment of
dower and Rs. 10,000/- towards the expenses of waiting period. A request was
made to accept the same.

11. After divorce by „triple talaq‟ the Respondent No.1 got attracted towards a
charming club dancer Afreen Rehman in a pub. He kidnapped her, took her to
a posh hotel and raped her. On persuasion he had Nikah with her in a simple

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ceremony on 01.03.2018 and provided her the apartment earlier in occupation


of Sanaya Begum the petitioner.

12. The Petitioner Sanaya Begum, approached the Hon‟ble Supreme Court by
filing a writ petition under Article 32 of the Constitution of India, for assailing
the divorce pronounced by her husband Respondent No.1 on 10.02.2018 as
stated hereinbefore. Copy of Deed of Divorce and the bank draft uncashed,
was annexed.

13. The Petitioner has sought a declaration, that the „talaq-e-biddat‟ pronounced
by her husband on 10.02.2018 be declared void ab-initio. It is also the
contention of the Petitioner, that such a divorce which abruptly, unilaterally
and irrevocably terminates the ties of matrimony, purportedly under Section 2
of the Muslim Personal Law (Shariat) Application Act, 1937 (hereinafter
referred to as, the Shariat Act), be declared unconstitutional. During the course
of hearing, it was submitted, that the „talaq-e-biddat‟ (triple talaq), pronounced
by her husband is not valid, as it is not a part of Shariat (Muslim personal
law). It is also the Petitioner‟s case that divorce of the instant nature cannot be
treated as “rule of decision” under the Shariat Act. It was also submitted that
the practice of „talaq-e-biddat‟ is violative of the fundamental rights
guaranteed to citizens in India under Articles 14, 15 and 21 of the
Constitution.

14. It is also the Petitioner‟s case that the practice of „talaq-e-biddat‟ cannot be
protected under the rights granted to religious denominations (or any sections
thereof) under Articles 25(1), 26(b) and 29 of the Constitution. It was
submitted that the practice of „talaq-e-biddat‟ is denounced internationally,
and further, a large number of Muslim theocratic countries, have forbidden the
practice of „talaq-e-biddat‟ and as such, the same cannot be considered
sacrosanct to the tenets of the Muslim religion.

15. The Petitioner also claimed that the Constitution says “State shall endeavor to
secure for the citizens a uniform civil code throughout the territory of India”

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and that it is more than 65 years but uniform civil code has not been enacted,
causing different rules for the citizens of India effecting disunity and is against
nationality. So it be directed to be enacted in 5 years. She also claimed that
fifth marriage with Afreen Rehman is illegal and needs annulment and he be
prosecuted for committing rape and kidnapping. It is also contended keeping
four wives at a time is inhuman as one or the other is neglected and ill-treated
and hence is bigamy and needs to be declared as violative of Articles 14 and
21 of the Constitution.

16. The counter-affidavit filed by Respondent Rizvan Ahmed admitted factum of


marriage, birth of children, but claimed that the Petitioner left her matrimonial
home on 01.02.2018 along with the children of her own accord for her
parental home and refused on phone to return to matrimonial home. Based on
the above, the case of the Respondent-husband is that he had pronounced
„talaq‟ in consonance with the prevalent and valid mode of dissolution of
Muslim marriage. It was submitted that the pronouncement of divorce by him
fulfils all the requirements of a valid divorce, under the Hanafi sect of Suni
Muslims, and is in consonance with Shariat (Muslim personal law).

17. He further submitted that his marriage with Afreen Rehman is with her
consent and she is his legally wedded wife and so the question of rape does
not arise. He denied the charge of kidnapping and rape and having four wives
is permissible in Islam. He also submitted that petition under Article 32 is not
maintainable as the questions raised in the petition are not justiciable under
Article 32 of the Constitution.

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ISSUES RAISED

I.

WHETHER THE PERSONAL LAW IS “LAW” AND “LAWS IN FORCE” WITHIN THE
MEANING OF ARTICLE 13 OF CONSTITUTION OF INDIA? AND WHETHER THE
MUSLIM PERSONAL LAW IS CAPABLE OF CHALLENGE ON THE GROUND OF
VIOLATION FUNDAMENTAL RIGHTS.

II.

WHETHER THE DIVORCE OF INSTANT NATURE CAN BE TREATED AS


“RULE OF DECISION” UNDER SHAIRAT?

III.

WHETHER THE TALAQ-E-BIDDAT THAT IS CLAIMED TO BE A PART OF


MUSLIM PERSONAL LAW AND PROTECTED BY SECTION 2 OF MUSLIM
PERSONAL LAW (SHARIAT) APPLICATION ACT, 1937 VIOLATE THE
FUNDAMENTAL RIGHTS OF MUSLIM WOMEN UNDER ARTICLES 14, 15 AND 21 OF
THE CONSTITUTION?

IV.

WHETHER THE PRACTICE OF „TALAQ-E-BIDDAT‟ CAN BE PROTECTED


UNDER THE RIGHTS GRANTED TO RELIGIOUS DENOMINATIONS
(OR ANY SECTIONS THEREOF) UNDER ARTICLES 25(1), 26(B) AND 29 OF
THE CONSTITUTION?

V.

WHETHER THE FIFTH MARRIAGE OF RIZWAN AHMED WITH AFREEN REHMAN


IS VALID? AND CAN HE BE PROSECUTED FOR AN OFFENCE OF RAPE AND
KINANPPING?

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SUMMARY OF ARGUMENTS

I.THE PERSONAL LAW IS “LAW” AND “LAWS IN FORCE” WITHIN THE MEANING
OF ARTICLE 13 OF CONSTITUTION OF INDIA AND HENCE MUSLIM PERSONAL
LAW IS CAPABLE OF CHALLENGE ON THE GROUND OF VIOLATION
FUNDAMENTAL RIGHTS UNDER ARTICLE 32.

The expression “law” is that it is binding on those to whom it applies, it is recognized by the
State as law and enforceable by the State. Personal Law has the character of being binding on
those to whom it applies and is enforced by the State; hence it is law within the meaning of
Article 13 of Constitution of India. Therefore, for all the reasons aforesaid, personal law is
“law” and constitutes “laws in force” within the meaning of Art.13 and Art.372 of the
Constitution of India and capable of challenge on the ground of violation of fundamental
rights if it does not comply with the Part III of the Constitution.

__________________________________________________________________________.

II.THE DIVORCE OF INSTANT NATURE CANNOT BE TREATED AS


“RULE OF DECISION” UNDER SHAIRAT?

Muslim personal laws of India permit the practice of talaq-e-bidat or talaq-i-badai, which
includes a Muslim man divorcing his wife by pronouncing more than one talaq in a single
tuhr1, or in a tuhr after coitus, or pronouncing an irrevocable instantaneous divorce at one go.
The correct law of talaq as ordained by the Holy Quran is that talaq must be for reasonable
cause and be preceded by attempts at reconciliation between 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. Thus in light of specific findings as to how Triple Talaq is bad in law
on account of not following the Quranic principles, it cannot be said that there is no ratio
decidendi on Triple Talaq. Therefore, as the divorce of instant nature is good in law but bad
in theology and as it is contrary to Holy Quran and it cannot be treated as “rule of decision”
under Sharia.

________________________________________________________________

1
The period between two menstruations

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III.THE TALAQ-E-BIDDAT THAT IS CLAIMED TO BE A PART OF MUSLIM


PERSONAL LAW AND PROTECTED BY SECTION 2 OF MUSLIM PERSONAL LAW
(SHARIA) APPLICATION ACT, 1937 VIOLATES THE FUNDAMENTAL RIGHTS OF
MUSLIM WOMEN UNDER ARTICLES 14, 15 AND 21 OF THE CONSTITUTION.

The practice of „talaq-e-biddat‟ permitted 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. A female
spouse had no say in the matter, in as much as, „talaq-e-biddat‟ could be pronounced in the
absence of the wife, and even without her knowledge. The impugned practice of talaq-ul/e-
bidat is violative of the right to equality of Muslim women guaranteed under Articles 14 and
15 to the extent that a Muslim man exercises power to declare a unilateral divorce and the
Muslim woman has no control over such unilateral arbitrary extra judicial divorce and her
marital status.

________________________________________________________________

IV.THE PRACTICE OF „TALAQ-E-BIDDAT‟ CANNOT BE PROTECTED UNDER THE


RIGHTS GRANTED TO RELIGIOUS DENOMINATIONS (OR ANY SECTIONS
THEREOF) UNDER ARTICLES 25(1), 26(B) AND 29 OF THE CONSTITUTION.

Harmonious reading of Part III of the Constitution clarifies that the freedom of conscience
and free profession, practice and propagation of religion guaranteed by Art. 25 is subject to
the fundamental rights guaranteed by Art.14, 15 and 21. In fact, Art. 25 clearly recognizes
this interpretation by making the right guaranteed by it subject not only to other provisions of
Part III of the Constitution but also to public order, morality and health. Therefore, the
impugned practices are not protected under Art. 25 as they violate the rights of Muslim
women guaranteed under Art. 14, 15 and 21 of the Constitution of India.

_______________________________________________________________________

V. THE FIFTH MARRIAGE OF RIZWAN AHMED WITH AFREEN REHMAN IS


NOT VALID AND HE SHOULD BE PROSECUTED FOR AN OFFENCE OF RAPE
AND KINANPPING.

After divorce by Triple Talaq Respondent Rizwan got attracted towards a charming club
dancer Afreen Rehman in a pub. Further he kidnaped her took her to a posh hotel and raped
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her. It is the further admitted position that he had on persuasion performed a Nikah with her
in a simple ceremony on 1st of March 2018. The probability cannot be ruled out that
Respondent Rizwan persuaded his 5th wife Afreen with coercion and force. Court should
direct the proper authority to Prosecuted Rizwan Ahmed as the offence of crime is non-
compoundable and this kind of crime is not only a crime against an individual but also a
crime towards the society.

___________________________________________________________________________

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ARGUMENTS ADVANCED

This is a Writ Petition under Article 32 of the Constitution of India praying for a direction
against the Union of India and others seeking a writ or order or direction in the nature of
mandamus declaring the practices of talaq-e-bidat2, and polygamy under Muslim personal
laws as illegal, unconstitutional for being violative of Articles 14, 15, 21 and 25 of the
Constitution, and to pass such further orders as this Hon‟ble Court may deem appropriate to
provide a life of dignity to Muslim women. This petition is filed by the Petitioner in her
individual capacity. The Petitioner has not approached any other court for the reliefs claimed
in the present Writ Petition. No representation has been filed with any authority since the
constitutional validity of a statute is under challenge and the reliefs claimed can only be
granted by this Hon‟ble Court.

I.THE PERSONAL LAW IS “LAW” AND “LAWS IN FORCE” WITHIN THE MEANING
OF ARTICLE 13 OF CONSTITUTION OF INDIA AND HENCE MUSLIM PERSONAL
LAW IS CAPABLE OF CHALLENGE ON THE GROUND OF VIOLATION
FUNDAMENTAL RIGHTS UNDER ARTICLE 32.

1.1. It is submitted that the basic defining feature of the expression “law” is that it is
binding on those to whom it applies, it is recognized by the State as law and
enforceable by the State. Personal Law has the character of being binding on those to
whom it applies and is enforced by the State; hence it is law within the meaning of
Article 13 of Constitution of India.
1.2. Personal Laws have no precise definition. Fairly workable though not comprehensive
definitions have been provided by different authors, the Privy Council, High Court,
Supreme Court, and pre-constitution legislations as follows:
ii. A.M Bhattacharjee: “Personal Laws may be defined as that body of
laws which apply to a person or to a matter solely on the ground of his
belonging to or its being associated with a particular religion.”3
iii. Mulla has described Personal Law as “the Laws and customs as to
succession and family relations”.4

2
Triple Talaq
3
[Matrimonial Laws and the Constitution: 2nd edition., Eastern Law House (2017) at Pgs. 4-7]
4
[Principles of Hindu Law, 15th edition., at Pg.88]

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iv. Cheshire: Personal Law is the Law determining the questions affecting
status and that “broadly speaking, such questions are those affecting
family relations and the family property5”.

1.3. Entry 5 of List III of the Constitution reads as follows:


“Marriage and divorce; infants and minors; adoption; wills, intestacy and
succession; joint family and partition; all matters in respect of which parties in
judicial proceedings were immediately before the commencement of this Constitution
subject to their personal law‖

1.4. It is submitted that the expression “personal laws” makes it clear that the state can
enact legislation in relation of personal laws. If the State has the power to enact
legislation for personal law, there is no reason why personal law cannot be subjected
to judicial scrutiny under Part III of the Constitution.

[A.] Personal law a “law” or “laws in force” within the meaning of Art. 13

1.5. It is further submitted that the this Hon‟ble Court has interpreted “laws in force” to
include not only statutory laws but also the entire gamut of common laws of the land.
Hence “personal laws must be included in the expression “laws in force”. It has been
held by the this Hon‟ble Court in a series of decisions:
i. In Sant Ram v. Labh Singh: “This Hon‘ble Court stated that custom
or usage having the force of law in the territory of India 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.‟‟6
ii. This Hon‟ble Court has clarified that “the expression ―laws in force‘‘ used
in Art. 13 includes not only statutory law but also custom, usage and even
common law in England.‖7

5
[Private International Law, 4th edition., at Pg.150]
6
Sant Ram v. Labh Singh (Para.4), (1964) 7 SCR 756
7
Builders Supply Corporation v. Union of India AIR 1965 SC 1061 (Para 20)

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iii. In Superintendent & Remembrancer of Legal Affairs v. Corporation of


Calcutta It was held that ―the expression ―law in force‖ includes not
only enactments of the Indian legislatures but that part of common law of
the land which was being administered by the Courts.” 8

Hence, it is submitted that personal laws must be held to be included within the
definition of “laws in force” in Art. 139 as also in Art. 37210 of the Constitution.

1.6. There are several judgments which while interpreting the expression “laws in force”
in Art. 372 have held that the expression includes statutory and non-statutory laws.
In the case of Naresh Chandra Bose v. S.N. Deb11; the Calcutta High Court held that
while reading Explanation I it has to remembered that Art. 372 uses the word
‗includes‘ the obvious implication being that in the first the definition is not
exhaustive. Even so, as is evident from a comparison of the terms of Art. 36612(10)
and Art. 372(1), while ‗existing law‘ as defined in Art. 366(10) is limited to statute
law or law embodied in ordinances, orders, bye-laws, rules and regulations, ―all the
laws in force‖ in' Art. 372(1) is not so limited and extends even to customary law,
personal law like the Hindu and Mohammedan law, being thus much more
comprehensive than 'existing law' as defined in Art.(10). It follows from this that
‗existing law‘ as defined there is a part of 'all the law in force' in Art. 372(1) and
Explanation I of Art. 372 by using the word ‗includes‘ in defining it extends rather
than restricts its meaning. Moreover, the judgment of the Federal Court in United
Provinces v. Atiqua Begum13, held while construing the analogous expression “law
in force” in S.292 of the Government of India Act 1935, observed that the expression
“applies not only to statutory enactments then in force, but to all laws, including even
personal laws, customary laws and case laws‖

1.7 It is most humbly and respectfully submitted that personal laws are to an extent based

8
Superintendent & Remembrancer of Legal Affairs v. Corporation of Calcutta AIR 1967 SC 997 (Paras. 21-22)
9
INDIAN CONSTITUTION Article 13
10
INDIAN CONSTITUTION Article 372 Clause 1.
11
Naresh Chandra Bose v. S.N. Deb AIR 1956 Cal 222 (Para.6)
12
INDIAN CONSTITUTION Article 366 Clause 10.
13
Provinces v. Atiqua Begum AIR 1941 FC 16 (Pg.421),

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on customary law. A.M. Bahttacharjee points out that David Pearl had stated that
laws in Quran were evidently piecemeal, superseding some, but not near a majority
of pre-Islamic customary laws14. Abdur Rahim notes that “those customs and usages
of the people of Arabia which were not expressly repealed during the life time of
Prophet are held to have been sanctioned by the law-giver by his silence.15” Fyzee
has approved this view16 and Markby in his work has noted that certain amount of the
old Arabian customs was no doubt assumed by Mohammed and “has always
remained in force though not expressly recognized.”17 The author also points out that
the Punjab Laws Act in S. 5(b)18, The Oudh Laws Act in S. 3(2)(b)19 have clearly
directed application of Hindu and Muslim Law and referred to them as law as has
been modified by custom. He therefore points out and rightly that if personal laws
are modified by custom then logical corollary is that they are also to an extent based
on custom. Moreover, the above mentioned laws applying Hindu Law and Muslim
Law are themselves statutory laws recognizing such laws as being binding on citizens
and hence “law” within the meaning of Art. 13 of the Indian Constitution.
1.8 H.M Seervai in his book Constitutional Law of India while discussing the said
judgment takes the view that personal laws are “law” and “laws in force” within the
meaning or Art. 13 and Art. 372 of the Indian Constitution in the following words:
“We have seen that there is no difference between the expression ―existing law‖ and
―law in force‖ and consequently, personal law would be ―existing law‖ &―law in
force. This conclusion is strengthened by the consideration that custom, usage and
statutory law are so inextricably mixed up in personal law that it would be difficult to
ascertain the residue of personal law outside them: it was, therefore, necessary to
treat the whole of personal law as existing law or law in force under Art. 372 and to
continue it subject to the provisions of the Constitution and subject to the legislative
power of the appropriate legislature20.”

14
Text Book on Muslim Law, 1970 at Page, 204
15
Muhammadan Jurisprudence, Tagore Law Lectures, 1911, Page. 136-137
16
Outlines of Muhammedan Law. 4edition., Page. 6-7
17
Elements of Law, 5th edition, Page. 52
18
Section 5(b) Punjab Law Act: The Muhammadan law, in cases where the parties are Muhammadans, and the Hindu law, in cases
where the parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the
provisions of this Act, or has been modified by any such custom as is above referred to
19
Section 3(2)(b) Oudh Law Act: The Muhammadan law in cases where the parties are Muhammadans, and the Hindu law in
cases where the parties are Hindus, except in so far as such law has been, by this or any other enactment, altered or abolished, or
has been modified by any such custom as is above referred to:
20
At page. 677 of 4ed., Vol.1, Universal Law Publishing Co. (by H.M. Servai)

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1.9 In C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami21 this Hon‟ble Court


held ―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 Art. 13 if they violate fundamental rights”.

1.10 Re Smt. Amina 22: ―According to my study of the subject, ‗personal laws‘ are ‗law‘
and ‗laws in force‘ under Art. 13 of the Constitution of India and are enforceable in
Courts subject to provisions of the Constitution and not otherwise. Even customs and
usages having the force of law are void if found inconsistent with any of the
fundamental rights guaranteed by the Constitution. It could not be the intention of
founding fathers of our Constitution to create any immunity in favour of personal
laws…We have seen that there is no difference between the expression ‗existing law‘
and ‗law in force‘ and consequently. Personal law would be ‗existing law‘ and ‗law in
force‘. This conclusion is strengthened by the consideration that custom, usage and
statutory law are so inextricably mixed up in personal law that it would be difficult to
ascertain the residue of personal law outside them.‖
1.11 Sheo Kumar Dubey v. Sudama Devi23 : “These definitions of ‗law‘ and laws in force‘
are thus comprehensive enough to include even custom or usage having the force of
law. Therefore, customary law is clearly embraced by those definitions. Accordingly,
if this customary law of pre-emption is in conflict with Part III of the Constitution,
more particularly, as urged in this appeal, is inconsistent with the provisions of Art.
19(1)(f) of the Constitution, it may be struck down as void‖.
1.12 Kunhimohammed v. Ayishakutty 24: ―It is perhaps more unfortunate that the courts
have not so far tackled the bull by the horns and had not tested the constitutional
validity of these stipulations which get the mandate for enforcement under the
provisions in the Muslim Personal Law (Shariat) Application Act, 1937…Personal
Law is also, according to us, ‗law‘. It is ‗existing law‘ and ‗law in force‘ as
contemplated by the constitutional provisions. Such stipulations in personal law
cannot be out of bounds for Art. 13 of the Constitution. Any stipulation of personal
law which offends the fundamental right to equality and life under Arts. 14 and 21 of
the Constitution will also have to be declared void under Art. 13.‖

21
In C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami (Para 15) (1996 8 SCC 525)
22
Re Smt. Amina(Paras 4-10, 12, 23): (AIR 1992 Bombay 214)
23
Sheo Kumar Dubey v. Sudama Devi (Para 11) (AIR 1962 Pat 125)
24
Kunhimohammed v. Ayishakutty (Paras. 45-46) (2010) 2 KLT 71

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1.13 Hina v. State of UP 25:― Personal laws, of any community, cannot claim supremacy
over the rights granted to the individuals by the Constitution. I would not like to say
anything further for the reason that the Supreme Court is seized with the matter.‖
1.14 In Several cases High Courts and this Hon‟ble Court have also held that after the advent of
the Constitution, customs and usages have to bow down to constitutional values of equality
and dignity for all, similarly it is submitted that personal laws too have to bow down to
constitutional values.

i. Panch Gujar Gaur Brahmans v. Amar Singh26 (Para 15) “…Under Section 13
of the General Clauses Act, a word used in plural has the same meaning as
when it is used in the singular form and the context in cl. (1) of Art. 13
makes it necessary to interpret “laws in force” so as to include customs and
usages, for, it would be absurd to think that all customs or usages which were
inconsistent with the provisions of Part 3 of the Constitution which guarantees
fundamental rights should continue to exist, although such customs and usages
if sanctified by incorporation in any Act, order, bye-law, rule, regulation or
notification would become void...”
ii. N. Adithayan v. Travancore Devaswom Board27: “Any custom or usage
irrespective of even any proof of their existence in pre-constitutional days
cannot be countenanced as a source of law to claim any rights when it is found
to violate human rights, dignity, social equality and the specific mandate of the
Constitution and law made by Parliament. No usage which is found to be
pernicious and considered to be in derogation of the law of the land or opposed
to public policy or social decency can be accepted or upheld by courts in the
country.‖
iii. Sarabai v.Rabianai28: All forms of talaq recognized and enforced by Muslim
Personal Law are recognized and enforced by the 1937 Act. This would
necessarily include Triple Talaq when it comes to the Muslim Personal Law
applicable to Sunnis in India. Therefore, it is very difficult to accept the
argument on behalf of the Muslim Personal board that Section 2 does not
recognize or enforce Triple Talaq. It clearly and obviously does both, because

25
Hina v. State of UP (Paras. 9-10) Writ - C No. - 51421 of 2016 in All HC /(2016) SCC OnLine All 994
26
Panch Gujar Gaur Brahmans v. Amar Singh AIR 1954 Raj 100
27
N. Adithayan v. Travancore Devaswom Board (Para.18) (2002) 8 SCC 106
28
Sarabai v.Rabianai (1905) SCC Bom 31

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the section makes Triple Talaq ―the rule of decision in case where the parties
are Muslim‖. The 1937 Act is a pre-constitutional legislature measure which
would fall directly within Art. 13(1) of the Constitution. The 1937 Act is a law
made by the legislature before the constitution came into force, it would fall
squarely within the expression ― laws in force ― in Art.13(3)(b) and would hit
by Art. 13(1) if found to be inconsistent with the provisions of Part III of the
Constitution in the extent of such inconsistency.

1.15 It is submitted that there can be no governing Muslim Personal Law in


relation to marriage and divorce outside the framework of Muslim Personal
Law (Shariat) Application Act, 1937 and to that extent the claim that the
impugned practices are part of Muslim Personal Law is nothing but a claim
that the impugned practices are protected under the Muslim Personal Law
(Shariat) Application Act, 1937. The said law is therefore capable of
constitutional challenge.
i. Mary Sonia Zachariah v. Union of India29: ―So long as the infringed
provisions are part of an Act, it must pass the test of constitutionality
even if the provision is based upon religious principles."

1.16 It is further submitted that for all the reasons aforesaid, personal law is
“law” and constitutes “laws in force” within the meaning of Art.13 and
Art.372 of the Constitution of India and capable of challenge on the ground
of violation of fundamental rights if it does not comply with the Part III of
the Constitution.
___________________________________________________________________________

II.THE DIVORCE OF INSTANT NATURE CANNOT BE TREATED AS


“RULE OF DECISON” UNDER SHAIRA.

[A.] DIVORCE OF INSTANT NATURE CANNOT BE TREATED RULE OF DECISON”


UNDER SHAIRA30.

2.1 It is submitted that The Muslim Personal (Sharia) Law Act, 1937 by virtue of

29
Mary Sonia Zachariah v. Union of India (Para 39) 1995 (1) KLT 644 FB
30
Muslim personal law

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being a statute falls under the definition of “laws in force” under Art.
13(3)(a) and Art. 372 of the Indian Constitution and thus can be challenged
under Art. 32 for being violative of fundamental rights of equality and life.
2.2 Section 2 of The Muslim Personal (Sharia) Law Act, 1937 reads as follows:
―Section 2 Application of Personal law to Muslims: 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, and 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).‖
2.3 It is further submitted that the Muslim personal laws of India permit the practice of
talaq-e-bidat or talaq-i-badai, which includes a Muslim man divorcing his wife by
pronouncing more than one talaq in a single tuhr31, or in a tuhr after coitus, or
pronouncing an irrevocable instantaneous divorce at one go. This practice of talaq-e-
bidat (unilateral triple-talaq) which practically treats women like chattel is neither
harmonious with the modern principles of human rights and gender equality, nor an
integral part of Islamic Faith, according to various noted scholars. Many Islamic
nations, including Saudi Arabia, Pakistan, and Iraq, have banned or restricted such
practice, while it continues to vex the Indian society in general and Indian Muslim
women like the Petitioner in particular. It is submitted that the practice also wreaks
havoc to the lives of many divorced women and their children, especially those
belonging to the weaker economic sections of the society.
2.4 The practice of talaq-e-bidat and divorce of a woman without proper attempt at
reconciliation violates the basic right to live with dignity of every Muslim woman.
Muslim women have been given talaq over Skype, Facebook and even text messages
(as happened in this case with the Petitioner). There is no protection against such
arbitrary divorce. Muslim women have their hands tied while the guillotine of divorce
dangles, perpetually ready to drop at the whims of their husbands who enjoy

31
The period between two menstruations

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undisputed power. Such discrimination and inequality hoarsely expressed in the form
of unilateral triple-talaq is abominable when seen in light of the progressive times of
the 21st century.
2.5 It is further submitted that, 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.
2.6 This unfortunate practice was highlighted in the case of Najma Bibi v. State of
Orissa whose husband divorced her in the spur of the moment in a drunken state and
wanted her back the next morning when he realized he had committed a terrible
mistake. Unfortunately, she was prevented by her community‟s leaders who forcibly
sent her with her three children to her father‟s house suggesting she will have to
undergo nikah halala before she can re-unite with her husband. In the case of Nagma
Bibi this Hon‟ble court came down heavily on the conservative society and stated that
“No one can force them to live separately. This is a secular country. All
communities, Hindus or Muslims, should behave in a civilized manner." This
Hon‘ble court also gave direction to the Orissa Government to provide security
to the couple.32
2.7 According to many different scholars, authors, High Court and Supreme Court, talaq-
e-bidat(instant divorce) is not a form of divorce recognized in the Holy Quran as the
Holy Book provides for reconsideration and reconciliation before recognizing divorce
as irrevocable.
i. Asghar Ali Engineer: Talaq-e-ehsan, in which a married Muslim couple
is given three months to separate if they wish, and also offers an
opportunity to reconcile their differences, is the only acceptable and valid
form of talaq. In any event, the social, economic, humanitarian and moral
significance of making attempts over a period of time to reconcile marital
disputes is widely prevalent and very well recognized.
ii. Prof. Tahir Mahmood (former Dean of Faculty of Law at the University
of Delhi, former Chairman of the National Commission for Minorities,
author and editor of numerous commentaries on Muslim law, and an

32
Najma Bibi v. State of Orissa

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internationally recognised expert on Muslim law): Talaq-e-bidat is not


recognised by the Holy Quran which, to the contrary, provides that a
person cannot divorce his wife unless there is an arbitration or
reconciliation process. He has also expressed the view that maulvis have
thwarted reforms in the Muslim community in India and it is imperative
for the judiciary to step in.
iii. Maulana Mohammad Ali: “Not only must there be a good cause for
divorce, but all means to effect reconciliation must also have been
exhausted, since the impression that a Muslim husband may put away his
wife at his mere caprice is a grave distortion of the Islamic institution of
divorce.33”
iv. Asaf A.A.Fyzee: ―Sura LXV, Sura IV Verse 35 and Sura II of the Quran
are instructive verse on the issues of divorce in the Quran, which do not
require any interpretative exercise. They are clear and unambiguous are
far as talaq is concerned. The holy Quran has attributed sanctity and
permanence to matrimony. However, in extremely unavoidable situations,
talaq is permissible. But an attempt for reconciliation and if it succeeds
then revocation are the Quranic essential steps before talaq attains
finality. In Triple Talaq, this door is closed, hence triple talaq is against
the basic tenets of the Holy Quran and consequently, it violates Shairat.
Thus, the Practice of triple talaq cannot be considered integral to the
religious denominations in question and is not part of their Personal
law.34‖
In several cases Hon‟ble High Court and this Hon‟ble Court has held that talaq-e-
bidat is not a form of divorce recognized in the Holy Quran as the Holy Book
provides for reconsideration and reconciliation before recognizing divorce as
irrevocable. And above view has been referred in many of the cases.
i. Hina vs. State of UP35: ―The instant divorce (Triple Talaq) though has
been deprecated and not followed by all sects of Muslim community in
the country, however, is a cruel and the most demeaning form of
divorce practiced by the Muslim community at large. Women cannot
33
Maulana Mohammad Ali’s Commentary of Holy Quran
34
Outlines of Muhammad Law 5th Edition (Para 12-14)
35
Hina vs. State of UP(Para 9-10) Writ- C No. - 51421 of 2016 /(2016) SCC OnLine All 994

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remain at the mercy of the patriarchal setup held under the clutches
of sundry clerics having their own interpretation of the holy Quran.‖
ii. In Dagdu s/o Chotu Pathan Latur v. Rahimbi36: ―Three judge bench of
the Bombay High Court observed that talaq must be for reasonable
cause, must be preceded by attempts at reconciliation, and the husband
must satisfy the preconditions of arbitration for reconciliation and the
reasons for talaq, since mere pronouncement of talaq by the husband or
merely declaring his intentions or his act of having pronounced talaq is
not sufficient and does not meet the requirements of law. In the words of
the judgment, every exercise of right to talaq by the husband is required
to satisfy the preconditions of arbitration for reconciliation and the
reasons for talaq.‖
iii. In Sri Jiauddin Ahmed v. Mrs. Anwara Begum37 Hon‟ble high
Court(Justice Baharul Islam) has quoted several Quranic verses and
commentaries thereon by well-recognized scholars of great eminence
like Mahammad Ali and Yusuf Ali as well as the pronouncements of
great jurists like Ameer Ali and Fyzee and expressed disapproval of the
notion that the whimsical and capricious divorce by a husband is “good
in law though bad in theology” and even observed that such a statement
is based on the concept that women were chattel belonging to men,
which the Holy Quran does not brook.
iv. In Must. Rukia Khatun v. Abdul Khalique Laskar38 Hon‟ble Justice
Baharul Islam, J. stated that “the correct law of talaq as ordained by the
Holy Quran is that talaq must be for a reasonable cause and it must be
preceded by an attempt of reconciliation between the husband and the
wife by two arbiters, one chosen by the wife from her family and the
other by the husband from his family.”
v. In Shamim Ara v. State of Uttar Pradesh & Another39 This Hon‟ble
Court observed that talaq must be for a reasonable cause and be

36
Dagdu s/o Chotu Pathan, Latur v. Rahimbi (2002(3)Mh LJ 602)
37
Sri Jiauddin Ahmed v. Mrs. Anwara Begum (1981)1 GLR 358
38
Must. Rukia Khatun v. Abdul Khalique Laskar (1981) 1 GLR 375 (DB)
39
Shamim Ara v. State of Uttar Pradesh & Another (2002) 7 SCC 518

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preceded by attempts at reconciliation between the husband and the


wife.

[B.] INSTANT DIVORCE IS “GOOD IN LAW BUT BAD IN THEOLOGY”

2.8 It is further submitted that in the Case of Shamim Ara v. State of U.P. it was held
that ―The statement that the whimsical and capricious divorce by the husband is good
in law, though bad in theology is based on the concept that women were chattel
belonging to men, which the Holy Quran does not brook. The correct law of talaq as
ordained by the Holy Quran is that talaq must be for reasonable cause and be
preceded by attempts at reconciliation between 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. Thus in light of specific findings as to how Triple Talaq is bad
in law on account of not following the Quranic principles, it cannot be said that there
is no ratio decidendi on Triple Talaq.40‖
2.9 The Petitioner most humbly and respectfully submitted that as the divorce of instant
nature is good in law but bad in theology and as it is contrary to Holy Quran and it
cannot be treated as “rule of decision” under Sharia.

_________________________________________________________________________

III. TALAQ-E-BIDDAT THAT IS CLAIMED TO BE A PART OF MUSLIM PERSONAL


LAW AND PROTECTED BY SECTION 2 OF MUSLIM PERSONAL LAW (SHARIAT)
APPLICATION ACT, 1937 VIOLATE THE FUNDAMENTAL RIGHTS OF MUSLIM
WOMEN UNDER ARTICLES 14, 15 AND 21 OF THE CONSTITUTION.

3.1 It is submitted that the impugned section 2 is violative of the fundamental rights of
Muslim women guaranteed under Art. 14, 15, and 2141 in as much as it gives
protection to the impugned practices.

[A.] TRIPLE TALAQ VIOLATES ARTICLES 14 AND 21

40
Shamim Ara v. State of U.P. (Para 14 to 17) (2002) 7 SCC 518
41
INDIAN CONTITUTION Art. 14, 15 AND 21

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3.2 The practice of „talaq-e-biddat‟ permitted 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.

3.3 It is submitted, that a female spouse had no say in the matter, in as much as, „talaq-e-
biddat‟ could be pronounced in the absence of the wife, and even without her
knowledge.

3.4 It is also submitted, that divorce pronounced by way of Triple Talaq is final and
binding, between the parties. These actions, vested an arbitrary right in the husband,
and as such, violated the equality clause enshrined in Art. 14 of the Constitution.

3.5 The impugned practice of talaq-ul/e-bidat is violative of the right to equality of


Muslim women guaranteed under Articles 14 and 15 to the extent that a Muslim man
exercises power to declare a unilateral divorce and the Muslim woman has no control
over such unilateral arbitrary extra judicial divorce and her marital status.

3.6 It is submitted that marriage being a matter or status its termination which has civil
consequences must be declared by a competent court of law alone and not by one of
the parties to the marriage namely the husband unilaterally.

3.7 It is submitted that the impact of such practice of talaq-e-biddat is that Muslim women
lose their right to residence, are driven to claim maintenance and custody of their
children in a court of law which is often denied to her at the stage of unilateral divorce.
This violates their right to life and dignity guaranteed under Article 21 of the
Constitution of India.

Hina vs. State of UP42:―The instant divorce (Triple Talaq) though has been
deprecated and not followed by all sects of Muslim community in the country,
however, is a cruel and the most demeaning form of divorce practiced by the
Muslim community at large. Women cannot remain at the mercy of the
patriarchal setup held under the clutches of sundry clerics having their own
interpretation of the holy Quran.‖

42
Hina vs. State of UP (Paras. 9-10) Writ- C No. - 51421 of 2016 /(2016) SCC OnLine All 994

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3.8 It is further submitted that marriage is a contract that entails change in life and a
commitment that two people make to each other out of natural love and affection to
share and care for each other. The rights conferred by virtue of the marriage are
legitimacy of children, custody of children, right to reside in matrimonial home. It
stands to reason that if that contract has to be terminated, it must be done with good
reason and with due regard to the rights of both the parties to the marriage and by a
judicial forum.

3.9 In this unilateral form of divorce, Muslim women do not have an equal role in
participating in the decision that vitally concerns them. Especially, Muslim women
who are home-makers lose social and financial stability as they no longer receive any
support from the husband or family of husband besides Mehr43 which often is a
nominal sum. As in this present case Petitioner was given the sum of Rs.51,000 in a
form of Demand Draft, which comprises Rs.41,000 towards the payment of Mehr and
Rs.10,000 towards the expenses of waiting period.44

3.10 It is submitted that the said law is ex facie 45discriminatory in that it is a right
to act in an arbitrary manner conferred on a husband to the detriment of his wife and
must be declared unconstitutional as being discriminatory based on sex. While judging
the constitutionality of a law, this Court must not only look at the text of the law but
also its disparate outcome on women.

3.11 It is submitted that while testing the constitutional validity of legislation, it is


not the object of the law alone that must be seen but the impact that it has on the rights
of the parties:

i. Punjab Province v. Daulat Singh46 “Beaumont J. holds that, it is necessary for


the court to consider the scope and object of the Act which is impugned, so as to
determine the ground on which such Act is based. While the scope and object of
the Act may be of assistance in determining the effect of the operation of the Act
on a proper construction of its provisions, if the effect of the Act so determined
involves an infringement of such personal right, the object of the Act, however

43
Dower
44
Para 4 || Factsheet
45
Ex facie, Latin for "on the face [of it]," is a legal term typically used to note that a document's explicit terms are defective without further
investigation
46
Punjab Province v. Daulat Singh(Pg.74): AIR 1946 PC 66

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laudable, will not stand valid.”


ii. State of Bombay v. Bombay Education Society47:―The object or motive
attributed to the impugned order is undoubtedly a laudable one but its validity
has to be judged by the method of its operation and its effect on the fundamental
right guaranteed by Article 29(2).
iii. R.C. Cooper v. UOI48 (Para. 49): ―…If this be the true view and we think it is, in
determining the impact of State action upon constitutional guarantees which are
fundamental, it follows that the extent of protection against impairment of a
fundamental right is determined not by the object of the Legislature nor by the
form of the action, but by its direct operation upon the individual's rights.‖
iv. Bennett Coleman v UOI49 (Para. 42): ―The ruling of this Court in Bank
Nationalization case was this:
―… The correct approach should be to enquire what in substance is the
loss or injury caused to the citizen and not merely what manner and
method has been adopted by the State in placing the restrictions.
…Courts have to protect and guard fundamental rights by considering the
scope and provisions of the Act and its effect upon the fundamental rights.
The ruling of this Court in Bank Nationalization case is the test of direct
operation upon the rights. By direct operation is meant the direct
consequence or effect of the Act upon the rights...‖

3.12 It is submitted that marriage among Muslims is admittedly a contract and hence it
cannot be dissolved in a unilateral manner. It is submitted that any rule of law or
custom or contract that permits unilateral termination of a marriage contract
affecting the status of a woman is unconscionable and against public policy and
void within the meaning of Section 23 of the Indian Contract Act, 1872:
Central Inland Water Transport Corpn. v. Brojo Nath Ganguly50 “Should then
our courts not advance with the times? Should they still continue to cling to
outmoded concepts and outworn ideologies? Should the strong be permitted to
push the weak to the wall? Should they be allowed to ride roughshod over the

47
State of Bombay v. Bombay Education Society47(Para. 16) (1955) 1 SCR 568 : AIR 1954 SC 561
48
R.C. Cooper v. UOI48 (Para. 49): AIR 1970 SC 564
49
Bennett Coleman v UOI49 (Para. 42): AIR 1973 SC 106
50
Central Inland Water Transport Corpn. v. Brojo Nath Ganguly (Para. 89) (1986) 3 SCC 156

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weak? Should the courts sit back and watch supinely while the strong trample
underfoot the rights of the weak? We have a Constitution for our country. Our
judges are bound by their oath to ―uphold the Constitution and the laws‖. The
Constitution was enacted to secure to all the citizens of this country social and
economic justice. Article 14 of the Constitution guarantees to all persons equality
before the law and the equal protection of the laws. The principle deducible from
the above discussions on this part of the case is in consonance with right and
reason, intended to secure social and economic justice and conforms to the
mandate of the great equality clause in Article 14. This principle is that the courts
will not enforce and will, when called upon to do so, strike down an unfair and
unreasonable contract, or an unfair and unreasonable clause in a contract,
entered into between parties who are not equal in bargaining power. It is difficult
to give an exhaustive list of all bargains of this type. No court can visualize the
different situations which can arise in the affairs of men. One can only attempt to
give some illustrations. For instance, the above principle will apply where the
inequality of bargaining power is the result of the great disparity in the economic
strength of the contracting parties. It will apply where the inequality is the result of
circumstances, whether of the creation of the parties or not. It will apply to
situations in which the weaker party is in a position in which he can obtain goods
or services or means of livelihood only upon the terms imposed by the stronger
party or go without them. It will also apply where a man has no choice, or rather
no meaningful choice, but to give his assent to a contract or to sign on the dotted
line in a prescribed or standard form or to accept a set of rules as part of the
contract, however unfair, unreasonable and unconscionable a clause in that
contract or form or rules may be. This principle, however, will not apply where the
bargaining power of the contracting parties is equal or almost equal.”

[B.] IMPUNGED PRACTICES VOILATES ART. 15

3.13 It is submitted that to the extent that the impugned practices can be exercised
unilaterally by the husband alone, they are violate of Art. 15 and the
discrimination is based on sex alone. It is also discriminatory since it has a
disparate impact on women alone. The impact of unilateral Triple Talaq is to

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render the wife instantly homeless, being driven out of the matrimonial home
for no reason other than that the husband has pronounced a unilateral Talaq. It
also renders her vulnerable to economic destitution driving her to lengthy
litigation for a just and fair maintenance.
This Court in Daniel Latifi v. UOI51 noted that women contribute to the
generation and accumulation of household assets and contribute with their labour
and hence, it would be unjust and unfair to deny them post divorce maintenance
which is just and fair for life: ―In interpreting the provisions where matrimonial
relationship is involved, we have to consider the social conditions prevalent in our
society. In our society, whether they belong to the majority or the minority group,
what is apparent is that there exists a great disparity in the matter of economic
resourcefulness between a man and a woman. Our society is male dominated, both
economically and socially and women are assigned, invariably, a dependent role,
irrespective of the class of society to which she belongs. A woman on her marriage
very often, though highly educated, gives up her all other avocations and entirely
devotes herself to the welfare of the family, in particular she shares with her
husband, her emotions, sentiments, mind and body, and her investment in the
marriage is her entire life — a sacramental sacrifice of her individual self and is
far too enormous to be measured in terms of money. When a relationship of this
nature breaks up, in what manner we could compensate her so far as emotional
fracture or loss of investment is concerned, there can be no answer. It is a small
solace to say that such a woman should be compensated in terms of money
towards her livelihood and such a relief which partakes basic human rights to
secure gender and social justice is universally recognized by persons belonging to
all religions and it is difficult to perceive that Muslim law intends to provide a
different kind of responsibility by passing on the same to those unconnected with
the matrimonial life such as the heirs who were likely to inherit the property from
her or the Wakf Boards. Such an approach appears to us to be a kind of distortion
of the social facts. Solutions to such societal problems of universal magnitude
pertaining to horizons of basic human rights, culture, dignity and decency of life
and dictates of necessity in the pursuit of social justice should be invariably left to
be decided on considerations other than religion or religious faith or beliefs or

51
Daniel Latifi v. UOI (Para. 20) (2001) 7 SCC 740

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national, sectarian, racial or communal constraints. Bearing this aspect in mind,


we have to interpret the provisions of the Act in question.‖
3.14 It is submitted that the impugned practice violates Art.15 52 being based on sex
alone.
[C.] OBLIGATIONS UNDER CEDAW

3.15 India is party to the Convention on Elimination of All Forms of Discrimination


against Women (CEDAW). CEDAW mandates all State parties to overcome
dismantle and refrain from promoting gender discrimination. Discrimination
against women based on sex and religion is in direct contrast with the CEDAW
mandate of achieving substantive equality.

i. Article 1 defines discrimination as follows:


“discrimination against women shall mean any distinction, exclusion or
restriction made on the basis of sex which has the effect or purpose of
impairing or nullifying the recognition, enjoyment or exercise by women,
irrespective of their marital status, on a basis of equality of men and women,
of human rights and fundamental freedoms in the political, economic,
social, cultural, civil or any other field.”
ii. Article 2 (c) and (f) mandate State Parties including India to:
―establish legal protection of the rights of women on an equal basis with
men and to ensure through competent national tribunals and other public
institutions the effective protection of women against any act of
discrimination‖, and to ―take all appropriate measures, including
legislation, to modify or abolish existing laws, regulations, customs and
practices which constitute discrimination against women.‖
iii. Particularly, Article 16 of the CEDAW mandates the State Parties including
India to provide for equal protection and equal rights to men and women in
matters relating to marriage and divorce. States Parties shall take all
appropriate measures to eliminate discrimination against women in all
matters relating to marriage and family relations and in particular shall
ensure, on a basis of equality of men and women. Article 16(1) CEDAW
read as:―(a) The same right to enter into marriage; (b) The same right

52
INDIAN CONSTITUTION ARTICLE 15

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freely to choose a spouse and to enter into marriage only with their free and
full consent; (c) The same rights and responsibilities during marriage and
at its dissolution;..‖

3.16 It is submitted that there has been no reservation to Article 2 of CEDAW by India
as indeed there cannot be one by India and hence all laws have to comply with the
guarantee of equality and non-discrimination. In any event the mere fact that India
has made a reservation to Article 16, cannot prevent this Hon‟ble Court from
adjudicating its constitutional validity. It only absolves India from being
accountable in an international forum, without affecting the jurisdiction of this
Court.
__________________________________________________________________________

IV. THE PRACTICE OF „TALAQ-E-BIDDAT‟ CANNOT BE PROTECTED


UNDER THE RIGHTS GRANTED TO RELIGIOUS DENOMINATIONS (OR ANY
SECTIONS (THEREOF) UNDER ARTICLES 25(1), 26(B) AND 29 OF
THE CONSTITUTION.

4.1 It is submitted that marriage and divorce are matters of secular nature and can be
regulated by the State.
i. Abdur Rahim Undre v. Padma Adbur Rahim Undre53:―In
Mohammedan Law Marriage is a Civil Contract. Hence so far as
relationship flowing from contract of marriage is concerned, including
its dissolution, the area and field is secular in nature.‖
ii. Sarla Mudgal v. Union of India54: “…Marriage, succession and like
matters of a secular character…”
iii. John Vallamattom v. Union of India55 (Para. 44): “it is not a matter of
doubt that marriage, succession and the like matters of secular
character...‖
4.2 It is submitted that the Supreme Court time and again has acknowledged the
difference between secular and religious activities in context of interpretation of
56
Art. 25 and 26 and has held that the State can regulate secular matters and

53
Abdur Rahim Undre v. Padma Adbur Rahim Undre (Para. 23) AIR 1982 Bom 341
54
Sarla Mudgal v. Union of India (Para.33) (1995) 3 SCC 635
55
John Vallamattom v. Union of India (Para. 44) (2003) 6 SCC 611
56
INDIAN CONSTITUION ARTICLE 25 AND 26

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secular matters of religion are not protected under the said Articles:
i. Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan57 (Paras. 58-60):
―In this connection, it cannot be ignored that what is protected under Articles
25(1) and 26(b) respectively are the religious practices and the right to
manage affairs in matters of religion. If the practice in question is purely
secular or the affair which is controlled by the statute is essentially and
absolutely secular in character, it cannot be urged that Article 25(1) or
Article 26(b) has been contravened…. If the practice is a religious practice
or the affairs are the affairs in matter of religion, then, of course, the right
guaranteed by Article 25(1) and Article 26 (b) cannot be contravened.‖ ―It
is true that the decision of the question as to whether a certain practice is a
religious practice or not, as well as the question as to whether an affair in
question is an affair in matters of religion or not, may present difficulties
because sometimes practices, religious and secular, are inextricably mixed
up. This is more particularly so in regard to Hindu religion because as is
well known, under the provisions of ancient Smritis, all human actions from
birth to death and most of the individual actions from day-to-day are
regarded as religious in character. As an illustration, we may refer to the fact
that the Smritis regard marriage as a sacrament and not a contract. Though
the task of disengaging the secular from the religious may not be easy, it must
nevertheless be attempted in dealing with the claims for protection under
Articles 25(1) and 26(b). If the practice which is protected under the former
is a religious practice, and if the right which is protected under the latter is
the right to manage affairs in matters of religion, it is necessary that in
judging about the merits of the claim made in that behalf the Court must be
satisfied that the practice is religious and the affair is in regard to a matter of
religion….If an obviously secular matter is claimed to be matter of religion,
or if an obviously secular practice is alleged to be a religious practice, the
Court would be justified in rejecting the claim because the protection
guaranteed by Article 25(1) and Article 26(b) cannot be extended to secular
practices and affairs in regard to denominational matters which are not
matters of religion, and so, a claim made by a citizen that a purely secular

57
Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan (Paras. 58-60)1964 1 SCR 561: AIR 1963 SC 1638

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matter amounts to a religious practice, or a similar claim made on behalf of


the denomination that a purely secular matter is an affair in matters of
religion, may have to be rejected on the ground that it is based on irrational
considerations and cannot attract the provisions of Article 25(1) or Article
26(b). This aspect of the matter must be borne in mind in dealing with true
scope and effect of Article 25(1) and Article 26(b).‖―A distinction must
always be made between a practice which is religious and a practice in
regard to a matter which is purely secular and has no element of religion
associated with it. Therefore, we, are satisfied that the claim made by the
denomination that the Act impinges on the rights guaranteed to it by Article
25(1) and 26(b) must be rejected.‖

4.3 The impugned practices are not protected by Art.25, Art.26 or Art.29 of the
Constitution of India.
4.4 The right to practice religion under Art. 25 is subject to other fundamental rights. It
reads as: ―(1) Subject to public order, morality and health, and to other provisions
of this part, all persons are equally entitled to freedom of conscience and the right to
freely profess, practice and propagate religion‖
4.5 It is submitted that a harmonious reading of Part III of the Constitution clarifies that
the freedom of conscience and free profession, practice and propagation of religion
guaranteed by Art. 25 is subject to the fundamental rights guaranteed by Art.14, 15
and 21. In fact, Art. 25 clearly recognizes this interpretation by making the right
guaranteed by it subject not only to other provisions of Part III of the Constitution
but also to public order, morality and health.
4.6 It is submitted that the impugned practices are not protected under Art. 25 as they
violate the rights of Muslim women guaranteed under Art. 14, 15 and 21 of the
Constitution of India.
i. Bijoe Emmanuel and Ors. v. State of Kerala and Ors58 :―We see that the right to
freedom of conscience and freely to profess, practise and propagate religion
guaranteed by Article 25 is subject to (1) public order, morality and health; (2)
other provisions of Part III of the Constitution; (3) any law (a) regulating or
restricting any economic, financial, political or other secular activity which may be
associated ' with religious practice; or (b) providing for social welfare and reform

58
Bijoe Emmanuel and Ors. v. State of Kerala and Ors (Para.19):“ (1986) 3 SCC 615

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or the throwing open of Hindu religious institutions of a public character to all


classes and sections of Hindus. Thus while on the one hand, Article 25(1) itself
expressly subjects the right guaranteed by it to public order, morality and health
and to the other provisions of Part III, on the other hand, the State is also given the
liberty to make a law to regulate or restrict any economic, financial, political or
other secular activity which may be associated with religious practise and to
provide for social welfare and reform, even if such regulation, restriction or
provision affects the right guaranteed by Article 25(1). therefore, whenever the
Fundamental Right to freedom of conscience and to profess, practise and
propagate religion is invoked, the act complained of as offending the Fundamental
Right must be examined to discover whether such act is to protect public order,
morality and health, whether it is to give effect to the other provisions of Part III of
the Constitution or whether it is authorised by a law made to regulate or restrict
any economic, financial, political or secular activity which may be associated with
religious practise or to provide for social welfare and reform. It is the duty and
function of the Court so to do.‖
ii. Sarla Mudgal v. Union of India59: ―…Marriage, succession and like matters of a
secular character…‖ cannot be brought within the guarantee enshrined under
Articles 25, 26 and 27. The personal law of the Hindus, such as relating to
marriage, succession and the like have all a sacramental origin, in the same manner
as in the case of the Muslims or the Christians. The Hindus along with Sikhs,
Buddhists and Jains have forsaken their sentiments in the cause of the national
unity and integration…”
iii. A S Naryana Deekshitulu v. State of AP60 :―…Though Agamas prescribed class
discriminatory placement for worship in the temples, it became obsolete after
the advent of the Constitution of India which, by Articles 14, 15, 17, 25 and 26,
prohibits discrimination on grounds only of caste, class, sect etc.‖
iv. John Vallamattom v. Union of India61 (Para. 44): “it is not a matter of doubt that
marriage, succession and the like matters of secular character cannot be brought
within the guarantee enshrined under Articles 25 and 26 of the Constitution.‖

59
Sarla Mudgal v. Union of India (Para.33) (1995) 3 SCC 635
60
A S Naryana Deekshitulu v. State of AP (Para.5)1996 (9) SCC 548
61
John Vallamattom v. Union of India (Para. 44) (2003) 6 SCC 611

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4.7. It is further submitted that In State of Bombay v. Narasu Appa Mali62,wherein


the constitutional validity of the Bombay Prevention of Hindu Bigamous Marriages Act,
1946 was challenged on the ground of violation of Art. 14, 15 and 25 of the Constitution,
a Division Bench consisting of Chief Justice Chagla and Justice Gajendragadkar (as His
Lordship then was), held that “a sharp distinction must be drawn between religious faith
and belief and religious practices, since the State only protects religious faith and belief
while religious practices that run counter to public order, morality or health or a policy
of social welfare must give way to the good of the people of the State. It is submitted that
this view has been referred to with approval by this Hon‘ble Court in Khursheed Ahmad
Khan 63.‖
4.8. Further in the case of Shayara Bano v. Union of India64 this Hon‟ble Court held that
“what is permitted or not prohibited by the religion does not become a religious practice
or a positive tenant of religion. A practice does not acquire the sanction of the religion
because it is permitted. What constitute an integral or essential part of religion has to be
determined with reference to its doctrines, practices, tenets, historical background, etc.
of the given religion. Essential practice means those practices that are fundamental to
follow a religious belief. It is upon the corner stone of essential parts or practices that
the superstructure of religion is built, without which a religion will be no religion.‖
4.9. It is further most humbly submitted that as recently as in 2016, Hon‟ble Justice
Mustaque of Hon‟ble High Court of Kerala in the case of Nazeer v. Shemeema65, has
inter alia referred to case of Shamim Ara66 and has disapproved Triple Talaq. And the
Same view was referred by Hon‟ble Justice Kurian of this Hon‟ble Court in the Case of
Shayara Bano V. Union of India.

―Therefore, I find it extremely difficult to agree with the learned Chief


Justice that the practice of triple talaq has to be considered integral to the
religious denomination in question and that the same is part of their
personal law. To freely profess, practice and propagate religion of one‘s
choice is a Fundamental Right guaranteed under the Indian Constitution.
That is subject only to the following- (1) public order, (2) health, (3)
62
State of Bombay v. Narasu Appa Mali AIR 1952 Bom 84
63
Khursheed Ahmad Khan (2015) 8 SCC 439
64
Shayara Bano v. Union of India (2017) 9 SCC 1
65
Nazeer v. Shemeema 2016 SCC online 41064: (2017) 1 KLT 300
66
Shamim Ara (2002) 7 SCC 518

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morality and (4) other provisions of Part III dealing with Fundamental
Rights.
Under the Constitution of India, the State is also granted power to make law
in two contingencies notwithstanding the freedom granted under states that
―nothing in this Article shall affect the operation of any existing law or
prevent the State from making any law- (a) regulating or restricting any
economic, financial, political or other secular activity which may be
associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu
religious institutions of a public character to all classes and sections of
Hindus.‖
Except to the above extent, the freedom of religion under the Constitution of
India is absolute and on this point, I am in full agreement with the learned
Chief Justice. However, on the statement that triple talaq is an integral part of
the religious practice, I respectfully disagree. Merely because a practice has
continued for long, that by itself cannot make it valid if it has been expressly
declared to be impermissible. The whole purpose of the 1937 Act was to
declare Shariat as the rule of decision and to discontinue anti-Shariat practices
with respect to subjects enumerated in which include talaq. Therefore, in any
case, after the introduction of the 1937 Act, no practice against the tenets
of Quran is permissible. Hence, there cannot be any Constitutional protection
to such a practice and thus, my disagreement with the learned Chief Justice for
the constitutional protection given to triple talaq. I also have serious doubts as
to whether, even under , the exercise of a Fundamental Right can be
injuncted.67
4.10. It is submitted that the right of religious denominations to manage their own
68
religious affairs guaranteed under Art. 26 is subject to morality. Art. 26 reads as: ―(1)
Subject to public order, morality and health, every religious denomination or any section

67
Shayara Bano v. Union of India (Para 25) (2017) 9 SCC 1
68
INDIAN CONSTITUTION ARTICLE 26 : Freedom to manage religious affairs Subject to public order, morality and health, every religious
denomination or any section thereof shall have the right
a. to establish and maintain institutions for religious and charitable purposes;
b. to manage its own affairs in matters of religion;
c. to own and acquire movable and immovable property; and
d. to administer such property in accordance with law

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thereof shall have the right – …(b) to manage its own affairs in matters of religion.‖
4.11. It is submitted that the word “morality” shall be read to mean constitutional morality
which includes gender justice, right to non-discrimination, dignity and personal
autonomy of women at the very least. It is submitted that the impugned practices run
counter to constitutional morality and thus cannot be protected under Art. 26 of the
Constitution.

i. Manoj Narula v. Union of India69 : “The Constitution of India is a living


instrument with capabilities of enormous dynamism. It is a Constitution made
for a progressive society. Working of such a Constitution depends upon the
prevalent atmosphere and conditions. Dr. Ambedkar had, throughout the
Debate, felt that the Constitution can live and grow on the bedrock of
constitutional morality. Speaking on the same, he said: - ―Constitutional
morality is not a natural sentiment. It has to be cultivated. We must realize that
our people are yet to learn it. Democracy in India is only a top-dressing on an
Indian soil, which is essentially undemocratic.”―The principle of constitutional
morality basically means to bow down to the norms of the Constitution and not
to act in a manner which would become violative of the rule of law or
reflectible of action in an arbitrary manner. It actually works at the fulcrum and
guides as a laser beam in institution building. The traditions and conventions
have to grow to sustain the value of such a morality. The democratic values
survive and become successful where the people at large and the persons-in-
charge of the institution are strictly guided by the constitutional parameters
without paving the path of deviancy and reflecting in action the primary
concern to maintain institutional integrity and the requisite constitutional
restraints. Commitment to the Constitution is a facet of constitutional morality‖
4.12. It is submitted that the right under Article 26 is subject to constitutional goals of
securing equality and dignity:
Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi v. State of U.P 70:
“The denomination sect is also bound by the constitutional goals and they too are
required to abide by law; they are not above law. Law aims at removal of the social
ills and evils for social peace, order, stability and progress in an egalitarian society.

69
Manoj Narula v. Union of India (Paras. 74-76) 2014 (9) SCC 1
70
Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi v. State of U.P (Para. 27) 1997 (4) SCC 606

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…In secularizing the matters of religion which are not essentially and integrally
parts of religion, secularism, therefore, consciously denounces all forms of
supernaturalism or superstitious beliefs or actions and acts which are not
essentially or integrally matters of religion or religious belief or faith or religious
practices. In other words, non-religious or anti-religious practices are antithesis to
secularism which seeks to contribute in some degree to the process of secularization
of the matters of religion or religious practices. For instance, untouchability was
believed to be a part of Hindu religious belief. But human rights denounce it and
Article 17 of the Constitution of India abolished it and its practice in any form is a
constitutional crime punishable under Civil Rights Protection Act. Article 15(2) and
other allied provisions achieve the purpose of Article 17.‖

4.13. It is therefore submitted that to recognize talaq-e-biddat goes counter to


constitutional morality of equality and gender justice and is liable to be declared
unconstitutional.

71
4.14. Art. 29 reads as: “Protection of interests of minorities: (1) Any section of the
citizens residing in the territory of India or any part thereof having a distinct language,
script or culture of its own shall have the right to conserve the same‖

4.15. It is submitted that the word “culture” in the said Article must be read ejusdem generis
with the words “language and script” and cannot include within it personal laws. No one can in
one breath claim that triple talaq is part of their religion and in the other breath claim the
protection of the right to conserve culture.

4.16. In any event, a cultural practice which goes contrary to Art. 14 and 15 and 21
cannot be preserved but on the contrary must be abolished. Several examples can be
found of practices justified as being based on religion and culture that have been
abolished on being found contrary to the prevailing ethos of prevailing norms of
civilized society including the abolition of Sati, child marriage and untouchability.

4.17. It is submitted that the impugned practices that violate the fundamental rights
of equality, life and dignity cannot be held to be protected under Art. 29 of the

71
INDIAN CONSTITUION ARTICLE 29

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Constitution of India as being part of “culture”. On a harmonious interpretation of Arts.


14, 15, 21 on one hand, and Art. 29 on the other hand, it is submitted that only culture
that does not violate the indispensable right to equality and life can be preserved as a
matter of right.
________________________________________________________________________

V. THE FIFTH MARRIAGE OF RIZWAN AHMED WITH AFREEN REHMAN IS NOT


VALID AND HE SHOULD BE PROSECUTED FOR AN OFFENCE OF RAPE AND
KINANPPING.

[A.] FIFTH MARRIAGE OF RIZWAN AHMED WITH AFREEN REHMAN IS NOT


VALID

5.1. It is respectfully submitted that after divorce by Triple Talaq Respondent Rizwan got
attracted towards a charming club dancer Afreen Rehman in a pub72. It is also the
admitted position that he kidnaped her took her to a posh hotel and raped her.73
5.2. It is the further admitted position that he had on persuasion performed a Nikah with her
in a simple ceremony on 1st of March 2018.74 The probability cannot be ruled out that
Respondent Rizwan persuaded his 5th wife Afreen with coercion and force.
5.3. It is further submitted that it is pertinent to note here that this Hon‟ble Court in the case
75
of Shayara Bano V/s Union of India has declared the process of Triple Talaq as
unconstitutional and therefore by virtue of this judgment it can be held that the divorce
given by the respondent Rizwan to the Petitioner is not proper in the eyes of law and
illegal or in other words it is absolutely no divorce and their marriage still exists.
Therefore, the marriage performed by the Respondent by the Rizwan with his 5th wife
Afreen is also not valid. Therefore, it is further humbly submitted that the 5th marriage of
the Respondent Rizwan may also kindly be declaration as null and void.

[B.] RIZWAN AHMED SHOULD BE PROSECUTED FOR AN OFFENCE OF


RAPE AND KINANPPING.

72 th
5 Para 1st line||Factsheet
73 th
5 Para 2nd line||Factsheet
74 th
5 Para 3rd line||Factsheet
75
Shayara Bano v. union of India (2017) 9 SCC 1

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5.4. It is submitted that this Hon‟ble Court should also issue the writ of mandamus to the
proper authority under law to prosecute Respondent Rizwan for offence Punishable under
Section 37676, 36377 of Indian Penal Code for kidnapping and Raping Afreen Rehman. As
the rape is not only a crime against an individual but also a crime against the society this
view was further referred by this Hon‟ble Court in the case of Dinesh Buddha v. State of
Rajasthan78 in which this Hon‟ble held that “Sexual violence apart from being a
dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female.
It is a serious blow to her supreme honour and offends her self-esteem and dignity it
degrades and humiliates the victim and where the victim is a helpless innocent child or a
minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries
but more indelibly leaves a scar on the most cherished possession of a woman i.e. her
dignity, honour, reputation and not the least her chastity. Rape is not only a crime against
the person of a woman, it is a crime against the entire society. It destroys, as noted by this
Court in (AIR 1996 SC 922), the entire psychology of a woman and pushes her into deep
emotional crisis. It is a crime against basic human rights, and is also violative of the
victim's most cherished of the Fundamental Rights, namely, the Right to Life contained
in of the Constitution of India, 1950 (in short the 'Constitution') The Courts are,
therefore, expected to deal with cases of sexual crime against women with utmost
sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitized
judge, in our opinion, is a better statutory armour in cases of crime against women than
long clauses of penal provisions, containing complex exceptions and provisos.‖

5.5.It is submitted that as that the offence of rape is a heinous and non Bailable offence and it
is also non compoundable as per Sec. 320 of Cr.P.C. It was held by this Hon‟ble Court in
the Case of Gian Singh v. State of Punjab79 that “heinous and serious offences of
mental depravity, murder, rape, dacoity etc., or offences under the special statutes like or
offences committed by public servants while working in their capacity as public servants

76
Section 376 of Indian Penal Code: Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with
imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to
ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be
punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court
may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
77
S.363. Punishment for kidnapping.—Whoever kidnaps any person from 1[India] or from lawful guardianship, shall be punished with
imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
78
Dinesh Buddha v. State of Rajasthan (Para 6) (2006) 3 SCC 771
79
Gian Singh v. State of Punjab SPECIAL LEAVE PETITION (CRL.) NO. 8989 OF 2010

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4th Manipal Ranka National Moot Court Competition 2018 [M135]

could not be quashed even if the victim or the victims family offers to settle the dispute as
such offences cannot be termed as private offences in nature and since they have serious
impact on the society.”

5.6.Therefore, even if the Respondent Rizwan had persuaded his 5th wife to marry him that
cannot be termed as her free will out of her free own desire to marry the Respondent.
Therefore it most humbly requested that this Hon‟ble Court may not only declared the 5th
marriage of Respondent Rizwan as null and void but a proper criminal prosecution may
also kindly be directed to be lodge against him.

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4th Manipal Ranka National Moot Court Competition 2018 [M135]

PRAYER

Wherefore, In light of the issues raised, arguments advanced and authorities cited, the counsel
for the Petitioner humbly prays that this Honorable Court may be pleased to adjudge, hold
and declare that,

1. By the writ of certiorari or any other writ, order or direction in nature of


certiorari, declare the Instant triple talaq pronounced by Respondent be void
ab initio.
2. By the writ of certiorari or any other writ, order or direction in nature of
certiorari, declare the practice of „talaq-e-biddat‟ as unconstitutional.
3. By the writ of mandamus or any other writ, order or direction in nature of
mandamus, direct the proper authority to investigate and prosecute the
Respondent No.1.
4. By the writ of mandamus or any other writ, order or direction in nature of
mandamus, to look into possibility of implementing Uniform Civil Code
(UCC) enshrined in the Constitution of India.

And pass any order that this Hon‟ble court may deem fit in the interest of equity, justice and
good conscience.

All of which is humbly prayed


M135,
Counsels for Petitioner.

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