Moot Memorial for respondent, Assignments of Law

Download Moot Memorial for respondent and more Assignments Law in PDF only on Docsity! 27th National Moot Court Competition, KLA Memorial for the respondent TEAM CODE: 12 BEFORE HONORABLE SUPREME COURT OF INDIA 28th ALL INDIA NATIONAL MOOT COURT COMPETITION ORIGINAL WRIT JURISDICTION FRIENDS OF LGBT AND ANOTHER…………………………… PETITIONER V. UNION OF INDIA………………………………………………….. RESPONDENT BEFORE SUBMISSION TO HON’BLE CHIEF JUSTICE AND HIS COMPANION JUDGES OF THE HON’BLE SUPREME COURT OF INDIA MEMORANDUM ON BEHALF OF THE RESPONDENT 27th National Moot Court Competition, KLA Memorial for the respondent TABLE OF CONTENTS 1. List of abbreviations…………… 1 2. Index of Authorities……………… 3 3. Synopsis……………………….. 5 4. Statement of Jurisdiction……… 6 5. Statement of Facts……………… 7 6. Statement of Issues………. 10 7. Summary of Arguments………… 11 8. Arguments advanced…………….. 12 9. Prayer………………………………. 20 27th National Moot Court Competition, KLA 3 Memorial for the Respondent INDEX OF AUTHORITIES. 1. National Legal Service Authority v. Union of India [2014 5 SCC 438] ………………………………………………………………………………..12, 13 2. Supreme Court of India Guidelines to file PIL………………………………………………………………………………..13 3. Navjet Singh Johar & Ors. v. Union of India thr. Secretary of Ministry of Law and Justice [2003 AIR SCC 3397]…………………………………………………………………...................13 4. Suresh Seth v. Commr., Indore Municipal Corporation : (2005) 13 SCC 287……………………………………..................................................................13 5. Rusom Cavasiee Cooper v. Union of India [1970 1 SCC 248]……………………………………………………………………………….13 6. Supreme Court Employees Welfare Association v. Union of India [1989 SCR (3) 488]………………………………………………………………………….........14 7. M/S Grasim Industries Ltd. V. Collector of Customs, Bombay [2003 AIR SC 3397]……………………………………………………………………………...14 8. The State of Bombay v. Narasu Appa Mali [1952 AIR Bom 84]……………………………………………………………….. ………………14 9. Page 10, Law of morality and sexual orientation, John Finnis. ……………………………………………………………………………………15 10. Page 24, Law of morality and sexual orientation, John Finnis………………………………………………………………………..……16 11. the defence of Natural law, Charles cowell,st.martins press, 1992 …… ……………………………………………………………………………………16 27th National Moot Court Competition, KLA 4 Memorial for the Respondent 12. the meaning of marriage, spence publishing company 2006)………… ……………………………………………………………………………………16 13. Dr.Krause, 2010………………………………………………………………….16 14. Messereli 2009…………………………………………………………………..16 15. R.S Nayak v A. R Anutley [1984 AIR 684]……..……………………………… 17 16. Raisa Begum and Ors. V. State of Uttar Pradesh and Ors. [1995 Crlj 1067]………………………………………………………………. …………….18 27th National Moot Court Competition, KLA 5 Memorial for the Respondent SYNOPSIS Anersi and Berni, two female Law students from Shakipur in the state of rangasthan were living together as spouses. They decided to get married and notified to the marriage officer of Shakipur North. On publishing notice as per Special marriage Act, one Fr.Samuels Objected under Section 8 of the Act for the noncompliance by the couple of Section 4 clause C of the Act. Anershi and Bernie filed a writ petition in this court under article 32 for issuance of writ of mandamus against the marriage officer of Shakipur. Another community LGBT also has filed a PIL in concern with the same issue under article 32 of Indian Constitution. The court has decided to hear both the petitions jointly. WRIT PETITION FILED BEFORE THIS HONOURABLE COURT Petitoner 1 …….. Anershi Petitioner 2 …… Berni Petitioner 3 …… Friends of LGBT V. Respondent 1 …….. Union of India Respondent 2 ……. State of Rangasthan Respondent 3 ……. Marriage Officer Respondent 4 ……. Father Samuel. 27th National Moot Court Competition, KLA 8 Memorial for the Respondent 8. Statement 3 in the objection by respondent 4 that same sex civil marriage would deny the children of their mother. 9. Respondent 4, in context to a statement "lesbian parenting may free daughters and sons from a broad but uneven range of traditional gender prescriptions." made by Judith Stacey. 10. In Respondent 4 , statement 5 is quoted from the book “self-defence of same sex- marriage”, happily same sex married Andrew Sullivan words, "There is more likely to be greater understanding of the need for extramarital outlets between two men than between a man and a woman." concludes that sexual fidelity exists more in same sex marriage. 11. Respondent 4 in his 6th statement contended that same sex marriage would isolate marriage from its procreative purpose. 12. Respondent 4 in his 7th statement to support his objection is that same-sex "marriage" would further diminish the expectation of paternal commitment and marriages thrive when spouses specialize in gender-typical roles 13. On 4.12.2018, it was communicated to the petitioners that they cannot solemnize their marriage, under the objection from respondent 4 accepted by respondent 3. 14. The Petitioners 1 and 2 Honourable court by invoking jurisdiction under Article 32 of Constitution of India. Petitioner 3 on behalf of LGBT community filed a PIL before this honourable court under article 32 seeking intervention of this court. 15. (6). Same-sex "marriage" would further isolate marriage from its procreative purpose. Traditionally, marriage and procreation have been tightly connected to one another. Indeed, from a sociological perspective, the primary purpose that marriage serves is to secure a mother and father for each child who is born into a society. Now, however, many Westerners see marriage in primarily emotional terms. Among other things, the 27th National Moot Court Competition, KLA 9 Memorial for the Respondent danger with this mentality is that it fosters an anti-nationalist mind-set that fuels population decline, which in turn puts tremendous social, political, and economic strains on the larger society. Same-sex marriage would only further undercut the procreative norm long associated with marriage. (7). Same-sex "marriage" would further diminish the expectation of paternal commitment. Marriages thrive when spouses specialize in gender-typical roles. If same- sex civil marriage is institutionalized, our society would take yet another step down the road of de-gendering marriage. There would be more use of gender-neutral language like "partners" and--more importantly--more social and cultural pressures to neuter our thinking and our behaviours in marriage. 16. On 4.12.2018, it was communicated to the petitioners that they cannot solemnize their marriage under the objection from Fr. Samuel and it would be against the social interest. 17. On 11.12.2008, the couple filed a petition before the Supreme Court of India under Article 32 of the Constitution challenging the validity of the decision of the Marriage Officer without availing other alternative remedies available to them. 27th National Moot Court Competition, KLA 10 Memorial for the Respondent STATEMENTS OF ISSUES A. Whether PIL filed by petitioner 3 is maintainable? B. Whether sexual orientation is in violation of Article 14 and 21 of the Constitution of India? C. Whether writ of mandamus can be issued against the marriage officer? 27th National Moot Court Competition, KLA 13 Memorial for the Respondent 5. We submit, the Supreme Court has already given a slew of directions to the government regarding the person status and inclusion of third gender in various aspects. In the previous case and in Navjet singh, the Supreme Court decided it. “…..only recognizes the private rights but would not extend it to civil rights”3 And “ ..for marriage it is left to the union government to form when it feels deemed to fit in”4 6. It is submitted that. wherein a prayer was made before this Court to issue directions for appropriate amendment in the M.P. Municipal Corporation Act, 1956 so that a person may be debarred from simultaneously holding two elected offices, namely, that of a Member of the Legislative Assembly and also of a Mayor of a Municipal Corporation. Repelling the said submission, the Court held: "In our opinion, this is a matter of policy for the elected representatives of people to decide and no direction in this regard can be issued by the Court.”5 7. It is contended that, in this context, it is fruitful to refer to the authority in, wherein it has been expressed : "It is again not for this Court to consider the relative merits of the different political theories or economic policies... This Court has the power to strike down a law on the ground of want of authority, but the Court will not sit in appeal over the policy of Parliament in enacting a law".6 3. Navjet Singh Johar & Ors. v. Union of India thr. Secretary of Ministry of Law and Justice [2003 AIR SCC 3397] 4. National Legal Service Authority v. Union of India [2014 5 SCC 438] 5. Suresh Seth v. Commr., Indore Municipal Corporation : (2005) 13 SCC 287 6. Rusom Cavasiee Cooper v. Union of India [1970 1 SCC 248] 27th National Moot Court Competition, KLA 14 Memorial for the Respondent As can be seen from the extracted portion of the said judgment, in Supreme Court Employees Welfare Association7, it was categorically held that no court can direct a legislature to enact a particular law. 8. It is submitted that , what constitutes social reform is for the legislature to decide the same, as they hold the closest hand towards the society. “ … the will expressed by the legislature, constituted by the chosen representatives of the people in a democracy, who are supposed to be responsible for the welfare of the state, is the will of the people and if they lay down a policy which am state should pursue such as legislature in its wisdom fells it be deemed fit”8 9. It is submitted that, it is crystal clear about the intention and objective of the legislature formulating such act for solemnization of marriage who don’t fall under the traditional personal laws. Such unambiguous law may not be directed for amendments in the act. “where the words are clear and there is no obscurity and there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for court to take upon itself the task of amending or altering the statutory provisions”9 10. It is further submitted that, Directions cannot be given to the union government for this particular as it regards private law and so hence the due to the forgave reasons the PIL is not maintainable in this Honourable Court. 7. Supreme Court Employees Welfare Association v. Union of India [1989 SCR (3) 488] 8. The State of Bombay v. Narasu Appa Mali [1952 AIR Bom 84] 9 . M/S Grasim Industries Ltd. V. Collector of Customs, Bombay [2003 AIR SC 3397] 27th National Moot Court Competition, KLA 15 Memorial for the Respondent 11. It is submitted that, the PIL was unmerited, unwarranted and ill- advised which invariably wasted this courts time and the honourable court may dismiss this petition with exemplary costs. B. Discrimination based on sexual orientation is not in violation of Article 21 and 14 of the Constitution. Ø Jurisprudence on sexual orientation 1. We submit that, the rejection of same sex marriage is to contend that homosexuality fails to correspond with the basic definition of marriage. First, that the genital union of the homosexual couples cannot actualise the marital good, Second, that homosexual intercourse instead of unifying the couple, intensifies their separate individuality thus is unnatural to marriage. 2. We submit that, the conjugal version of marriage involves both mind and body. The civil union, as two spouses of different sexuality are w put together, is the “Procreative significance” this bodily union “can actualize and allow them to experience their real common good, parenthood and friendship”10 3. It is denied that, homosexual couples entering into civil will not be able to exercise conjugal rights applied to heterosexual couples. The intercourse between two homosexual spouses is simply the attempt for pleasure, instead attached any moral values of marriage. 10. Page 10, Law of morality and sexual orientation, John Finnis. 27th National Moot Court Competition, KLA 18 Memorial for the Respondent 4. It is submitted that a set of statements were notified to the respondent 3 on objection from and by respondent 4. The statements are true and are made in context to save the sanctity and the objective of a marriage. 5. It is submitted that, the objection from respondent 4 was accepted by the Marriage officer under section 7 of the Special Marriage Act. The compliance of his duty to the statute was performed and no mandamus may be filed to prevent him from doing such duty. 6. It is submitted that, the petitioner has no legal right to compel the performance of that public duty to the public officer to refrain from doing that duty. “Its function is to compel the performance of a present existing duty as to which there is default’ And further states that “It is not granted to take effect prospectively and it contemplates the performance of an act which is incumbent on respondent when an application for a writ is made”17 7. It is submitted that, the Allahabad high court had held that certain conditions have to be satisfied before a writ of mandamus is issued. The petitioner for a writ of mandamus must show that he has a legal right to compel the respondent to do or abstain from doing something. “….. there must in a petitioner a right to compel performance of some duty cast on respondents”.18 17. 18 . Raisa Begum and Ors. V. State of Uttar Pradesh and Ors. [1995 Crlj 1067] 27th National Moot Court Competition, KLA 19 Memorial for the Respondent 8. It is submitted that, no such duty to solemnize the marriage of parties violating rules under section 4 is available and the writ of mandamus may not be issued to the respondent 3 to solemnize the marriage of petitioner 1 and 2. 27th National Moot Court Competition, KLA 20 Memorial for the Respondent PRAYER 1. The PIL filed by petitioner 3 be dismissed imposing exemplary cost to discourage ill- advised petitions. 2. Discrimination based on sexual orientatrion is a reasonable restriction and not in violation of article 14 and 21. 3. The writ of Mandamus may not be issued against the respondent 3 from the petition from petitioner 1 and 2. AND/OR Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience. And for this, the Petitioner as in duty bound, shall humbly pray. COUNSELS FOR THE RESPONDENT