Memorial for Respondents in Supreme Court Case on Muslim Women's Rights, Exercises of History

Download Memorial for Respondents in Supreme Court Case on Muslim Women's Rights and more Exercises History in PDF only on Docsity! Team Code: TC 46 35™ BCI ALL-INDIA INTER-UNIVERSITY Moor Court COMPETITION, 2019 Before THE HON’BLE SUPREME COURT OF PINDIANA, CHIND IN W.P (C) No. __ oF 20__ ASMA ... PETITIONER UNION OF INDIA & MUKHTAR ... RESPONDENTS with IN SLP No. __ oF 20__ MUKHTAR ... APPELLANT UNION OF INDIA ... RESPONDENT Memorial Submitted to the Registry of the Hon’ble Supreme Court of Pindiana MEMORIAL ON BEHALF OF THE RESPONDENTS [TABLE OF CONTENTS] TABLE OF CONTENTS LIST OF ABBREVIATIONS .........ccccsssssesesseecssesesessesesesseeceussesesessceesscsesscscsesscsesecscaeeseseseescseseseseeseeee Il INDEX OF AUTHORITIES .....c:.sccsccsessesesseecsseseecesesesessesceessesesessceesecessesecsesscsesecscaeecesesseacaeseseaeeneeee IV STATEMENT OF JURISDICTION .......ccscssesesseseessseeseseeseecessseseseeeceesscsesessssesecaesecscsesscsseescseeseseseaes VII STATEMENT OF FACTS .....cccsccssescsesesecseeceseseecesesesesseeseeessseseseceeseseeseseseesecsesesecaesscseseeecseeeeseaneee Vill ISSUES RAISED .....cccecccsscsssesesecseeceseseecesesesesseecesesesesseeseuseceesessssesscsesesscsesecsesecscaeesessseescaeeseseeeeseeee Ix SUMMARY OF ARGUMENTS .....c.cccessescssesssesseeceseecessseesesesesesseeceessssesessesesecsesesessesecseseeesseeecseseecsees xX PLEADINGS 00. .cscscsccsesssseeceseseescseeceueseeceuesesesseeceuesesesseessesssseseseseesecsesesessesesseseescsesscsesececseescseseescseeee 1 I. Talaq-e-Biddat doesn’t fall under the purview of ‘Law’ as per Art. 13 II. A restraint in the practice of talaq-e-biddat is a violation of freedom of religion......... 1 Ill. | Promulgation of the Impugned Ordinance is in violation of Art 123 of the Constitution IV. The Impugned Ordinance is in violation of fundamental rights guaranteed under the COmstitution .........ccceccceeeceseseecsee cesses ceseseessseeseseseseseseeseessseseeeseesessesessssesecsesecscsesecseseeecseeeseaeass 3 A. Ordinance violates the principle of non-discrimination contained in Arts. 14 and 15 II | Page MEMORIAL ON BEHALF OF RESPONDENTS [INDEX OF AUTHORITIES] Shakti Vahini v. UOI & Ors., AIR 2018 SC 1601 5 Shamim Bano v. Asraf Khan, Criminal Appeal No.820 Of 2014 5 Shayara Bano and Ors. v. Union of India and Ors., AIR 2017 SC 4609 I Shri Venkatramana Devaru v. State of Mysore, 1958 SCR 895. I Srinivas Aiyar v. Saraswathi Ammal, AIR 1952 Mad 193 I State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84 1 State of J&K v. Triloki, (1974) 1 SCC 19 3 State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75 3 STATUTES Code of Criminal Procedure, 1973 5 S. 3, The Muslim Women (Protection of Rights on Marriage) Second Ordinance, | 3 2019 S. 4, The Muslim Women (Protection of Rights on Marriage) Second Ordinance, | 4 2019 S. 7, The Muslim Women (Protection of Rights on Marriage) Second Ordinance, | 4 2019 Schedule I, Code of Criminal Procedure, 1973 4 The Muslim Personal Law (Shariat) Application Act, 1937 1 The Protection of Women from Domestic Violence Act, 2005, No. 43 of 2005, | 5 Section 21 CONSTITUTIONAL PROVISIONS Art. 123, Constitution of Pindiana 2 Art. 13, Constitution of Pindiana 1 Art. 25, Constitution of Pindiana 1 Art. 26, Constitution of Pindiana 1 Books Andrew Ashworth, PRINCIPLES OF CRIMINAL LAW, 30 (5" edn., 2006). 4 Durga Das Basu, COMMENTARY ON THE CONSTITUTION OF INDIA, 5515 (8 edn., | 2 Vol. 4, 2007) V | Page MEMORIAL ON BEHALF OF RESPONDENTS [INDEX OF AUTHORITIES] H.M Seervai, CONSTITUTIONAL Law OF INDIA, 439 (4" edn., Vol. 1, 2014) 3 VI | Page MEMORIAL ON BEHALF OF RESPONDENTS [STATEMENT OF JURISDICTION] STATEMENT OF JURISDICTION The Respondent in W.P (C)__ of 20__ submits to the jurisdiction of the Supreme Court of Pindiana under Art. 32 of the Constitution of Pindiana. The Respondent in SLP No __ of 20__ submits to the jurisdiction of the Supreme Court under Art. 136 of the Constitution of Pindiana. VII | Page MEMORIAL ON BEHALF OF RESPONDENTS [SUMMARY OF ARGUMENTS] SUMMARY OF ARGUMENTS ISSUE 1: TALAQ-E-BIDDAT DOESN’ T FALL UNDER THE PURVIEW OF ‘LAW’ AS PER ART. 13 The Respondent contends that the practice of talag-e-biddat is not codified The Muslim Personal Law (Shariat) Application Act, 1937 (hereinafter ‘Shariat”) under the and is outside the purview of Art. 13. Therefore the same is not susceptible to meet the standards required by Part III of the Constitution. ISSUE 2: A RESTRAINT IN THE PRACTICE OF TALAQ-E-BIDDAT IS A VIOLATION OF FREEDOM OF RELIGION The Respondent contends that any restraint put in the practice of talaq-e-biddat would amount to curtailment of freedom to practice and profess religion as enshrined under Art. 25 and Art. 26 of the Constitution. This is so as the practice of talaq-e-biddat is an essential religious practice and is outside of the purview of court intervention. ISSUE 3: PROMULGATION OF THE IMPUGNED ORDINANCE VIOLATES ART. 123 OF THE CONSTITUTION The power to promulgate an Ordinance is dependent on the condition precedent of there being a need for “immediate action.” To challenge the Ordinance on grounds of absence of need for immediate action, a petitioner is required to make only a prima facie case showing non- existence of circumstances necessary for promulgating an ordinance. Following this a burden is cast on the Executive to establish such circumstances. It is contended that the circumstances did not warrant promulgation of the Impugned Ordinance and a prima facie in that case has been established. ISSUE 4: THE IMPUGNED ORDINANCE IS IN VIOLATION OF FUNDAMENTAL RIGHTS UNDER THE CONSTITUTION The Impugned Ordinance is challenged to be in violation of Part III of the Constitution on the following grounds: I. Violation of the principle of non-discrimination enshrined in Arts. 14 and 15. IL. Failure to satisfy the test of arbitrariness under Art. 14. Il. Violation of right to life guaranteed under Art. 21. X | Page MEMORIAL ON BEHALF OF RESPONDENTS [PLEADINGS] PLEADINGS I. TALAQ-E-BIDDATDOESN’T FALL UNDER THE PURVIEW OF ‘LAW’ AS PER ART. 13 {4{l.] As per Art. 13! a ‘law’ which is in contravention with the fundamental rights would void till the extent of this contravention. For this, the basic prerequisite is classification of the practice in question as a ‘law’. It is to be noted that personal laws are by end large non-statutory and courts have refrained from categorization of the same as ‘law’.? This effectively makes personal laws outside the purview of Part III* and any changes made to such laws would have to be done by the legislature.* {2.] The alleged codification in question is the Shariat Act> and as per the legislative assembly debates preceding the passing of this Act, the object of the legislation was not to express the details of the Muslim personal law but merely to do away with customs and usages as were in conflict with it.° This intention is reinforced through the non-obstante clause at the beginning of S. 2 of the Act. [3.] Therefore, it is humbly submitted that talag-e-biddatis not given a statutory status by the ShariatAct and cannot be included within the meaning of “laws in force” under Art. 13 of the Constitution. II. A RESTRAINT IN THE PRACTICE OF TALAQ-E-BIDDATIS A VIOLATION OF FREEDOM OF RELIGION ({4.] Art. 257 r/w Art. 268 guarantees freedom to practice ones religion. The State cannot interfere with the established customary religious rights to perform their function and ceremonies? as long as it formulates an ‘essential religious practice’ .'° Therefore the protection is extended to religious practice and affairs in matters of religion which form an integral part of the religion itself."' [{5.] Further, determination of the same depends on understandings and beliefs regarded by ' Art. 13, Constitution of Pindiana. ? State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84; Srinivas Aiyar v. Saraswathi Ammal, AIR 1952 Mad 193; Ram Prasad v. State of U.P, AIR 1957 All 411. > Krishna Singh v. Mathura Ahir, AIR 1980 SC 707; P.E. Mathew v. UOI, AIR 1999 Ker 345. 4 Ahemdabad Women Action Group v. UOI, (1997) 3 SCC 573. > The Muslim Personal Law (Shariat) Application Act, 1937. © Shayara Bano v. UOI, (2017) 9 SCC 1, Para 96. 7 Art. 25, Constitution of Pindiana. * Art. 26, Constitution of Pindiana. ° Gulam Abbas v. State of U.P, AIR 1981 SC 2198. '0 H.H.Srimad Perarulala v. State of T.N, AIR 1972 SC 1586, Pg 1593. '! Shri Venkatramana Devaru v. State of Mysore, 1958 SCR 895. 1 | Page MEMORIAL ON BEHALF OF RESPONDENTS [PLEADINGS] community practicing that religion.!? Additionally a ‘practice’ to be religious need not be adopted by all member of a religion and it cannot be denied if it is shown to be performed as an article of faith by a religious denomination.'* [{16.] It is also to be noted that the very concept of essentiality is not by itself a determinative factor; but is one of the circumstances to be considered in determining whether a practice is an integral part of that religion or not. 14 Due to these factors, Courts on numerous occasions have denied intervening in matters relating to personal laws- both codified and uncodified, and held that such matters pertained to legislative action.'> {{7.] It is submitted that talaq-e-biddat, is a 1400 years'® old practice and is followed by Hanafi School Muslim which is the largest sect of Sunni Muslims in India!’and the practice of the same holds good in law.'* Thus, talaq-e-biddatis an integral part of religious practice followed by Sunni Sect of Muslim and hence any interference by Court shall infringe the freedom of religion. III. PROMULGATION OF THE IMPUGNED ORDINANCE IS IN VIOLATION OF ART. 123 OF THE CONSTITUTION [18.] The President of Pindiana is empowered to promulgate ordinances when the Houses of the Parliament are not in session, if she is satisfied about the existence of an emergent situation!® requiring ‘immediate action.’ In order to challenge the validity of the ordinance, a petitioner is required to make only a prima facie case showing non-existence of circumstances necessary for promulgating an ordinance, following which a burden is cast on the executive to establish such circumstances.”! [{9.] It is submitted that talaq-e-biddat has been a part of Islam since centuries and there has been no legislation for criminalizing it, until now. Given that a challenge to its constitutionality was sub-judice before this Hon’ble Bench,” it can be said that prima facie, there was no need for an immediate action of promulgating the Impugned Ordinance. Therefore, unless the "? Ratilal Panachand Gandhi v. State of Bombay, AIR 1954 SC 388, Para 14. '3 Durga Das Basu, COMMENTARY ON THE CONSTITUTION OF INDIA, 3462 (8'edn., Vol. 4, 2007). '4 A.S, Narayana Deekshitulu v. State of A.P, (1996) 9 SCC 548. '5 Ahmedabad Women Action Group. v. UOI, (1997) 3 SCC 573, Para 11; Maharshi Avdhesh v. UOI (1994) Supp (1) SCC 713. '6 Shayara Bano v. UOI, (2017) 9 SCC 1, Para 96. '7 Abu Umar Faruq Ahmad, THEORY AND PRACTICE OF MODERN ISLAMIC FINANCE, 77-78 (1*edn., 2010). '8 D.F. Mulla, PRINCIPLES OF MUHAMMADAN LAW, 725 (1°'edn., 2011). '° R.K Garg v. UOL, (1981) 4 SCC 675. 20 Art. 123, Constitution of Pindiana. 21 ALK Roy v. UOI, (1982) 1 SCC 271; Gyanendra Kumar v. UOI, AIR 1997 Del 58, Pg. 61. 22 Pg. 14, Moot Problem No. 1. 2 | Page MEMORIAL ON BEHALF OF RESPONDENTS [PLEADINGS] {17.] In Joseph Shine,* it was held that criminal sanctions are justified in public wrongs, but not in private wrongs. Criminalizing an act entails curtailment of individual autonomy and thus requires stronger justification.*’ Minimalist approach in criminalization of offences must be adopted so that criminal law is used as the last resort. [{18.] In the present case, the act that is criminalized is essentially a form of divorce which is a private matter falling in the realm of civil law. Secondly, the object of the Impugned Ordinance, i.e., protection of rights of Muslim women is attainable even in the absence of a penalizing provision. The step taken in the Impugned Ordinance is unnecessary and grossly disproportionate to the object sought to be achieved by it. Such ‘unprincipled criminalization’ being manifestly arbitrary is violative of Art. 14. C. The Impugned Ordinance violates the right to life under Art. 21 [9119.] It has been held that imposing criminal sanctions that breaches the realm of privacy existing in a matrimonial relationship is violative of Art.21.°* Further, expression of choice *° and freedom of choosing a life partner“ are held to be essential part of right to liberty and dignity*'. Moreover, the right to dissolve a marriage is a part of fundamental right under Art. 21." [120.] In the present matter, the Impugned Ordinance imposing a criminal penalty in case of marital discord serves contrary to the object of the Impugned Ordinance as it may cause destitution of marriage rather than preserving it. Also, the detention of the husband while the marriage still exists stands inconsistent with the conjugal rights*? inherent in a marital relationship. [{21.] Furthermore, the Impugned Ordinance serves no purpose except for imposing criminal sanctions on a particular community as law for maintenance and custody of child* already exists. Thus, the Ordinance violates the right of life and dignity of a Muslim marriage and hence violates Art. 21 of the Constitution. 56Joseph Shine v. UOL, (2019) 3 SCC 39, Para 17 (Malhotra J.). 37 Thid. 38 Thid 3° National Legal Services Authority v. UOI, (2014) 5 SCC 438. 4° Shakti Vahini v. UOI, AIR 2018 SC 1601. 41 K.S. Puttaswamy v. UOI, (2017) 10 SCC 1, Para 108. #2 Saumya Ann Thomas v. UOI, 2010 (1) KLJ 449. 43 Naushad Hussain v. Razia, 2018(2) UC 1242. “4C.K. Aboobacker v. Rahiyanath, Crl.M.C.No. 2188 of 2004 (decided on 22.07.2008); S. 125, Code of Criminal Procedure, 1973. 45 §. 21, The Protection of Women from Domestic Violence Act, 2005. 5 | Page MEMORIAL ON BEHALF OF RESPONDENTS [PRAYER] PRAYER Wherefore, in the light of the facts stated, issues raised, arguments advanced and authorities cited, it is most humbly prayed and implored before the Hon’ble Supreme Court of Pindiana that it may be graciously pleased to adjudge and declare that: I. Talaq-e-biddat doesn’t fall under the purview of ‘Law’ as per Art. 13 and thus not susceptible to the conditions laid down in Part III. Il. A restraint in the practice of talaq-e-biddat is a violation of freedom of religion. Ill. Promulgation of the Impugned Ordinance is in violation of Art. 123. IV. _ Impugned Ordinance is in violation of fundamental rights. Also, pass any other order that it may deem fit in the favour of the RESPONDENT in the light of equity, justice and good conscience. For this act of Kindness, the RESPONDENT shall duty bound forever pray. Place: Chind sd /- Dated: 20" April 2019 Counsel for Respondent XI | Page MEMORIAL ON BEHALF OF RESPONDENTS