Memorial For The Respondent

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 BEHALF OF THE RESPONDENT.
Page 1 of 36
TABLE OF CONTENTS
List of Abbreviations……………………………………………………………..……... 4
Index of Authorities………………………………………………………………..……. 5
Statement of Jurisdiction……………………………………………………………..…. 7
Statement of Facts…………………………………………………..…………………… 8
Issues Raised……………………………………………………..……………………. ... 12
Summary of Arguments…………………………………………..……………………… 13
ARGUMENTS ADVANCED………………………………………..…………………. 15
I.THE PRESENT PETITION IS NOT MAINTAINABLE UNDER ARTICLE 32. THE

MUSLIM PERSONAL LAWS CANNOT BE TESTED AS BEING VIOLATIVE OF PART
III OF THE CONSTITUTION. .............................................................................................15
[A.] The present petition is not maintainable under article 32………..………………………….15
[B.] THE muslim personal laws cannot be tested as being violative of part iii of the
constitution……………………………………………………………………………..…………………….16
II.THE COURT OF LAW CANNOT INTERPRET RELIGIOUS SCRIPTURES OF ANY
RELIGIOUS DENOMINATION CONTRARY TO THE INTERPRETATION PUT ON IT
BY THE RELIGIOUS BOOKS AND AUTHORITIES, HELD AUTHENTIC BY SUCH
DENOMINATION……………………………………………….………………………21
[A.] Courts ought to apply the principle of judicial restraint, and should not deal with the issue of
constitutional interpretation unless such an exercise is but
unavoidable………………………………………………………………………………………………..24
[B.] Islam treats the relationship of marriage in substance a civil contract bearing spiritual and
moral overtones and
undertones:……………………………....................................................................25
III. THE IMPUGNED PRINCIPLES OF MUSLIM PERSONAL LAW, TRIPLE TALAQ IN
ONE SITTING, HALALA AND POLYGAMY, FORM AN ESSENTIAL PART OF
THE RELIGION OF ISLAM AS INTERPRETED BY FOUR SCHOOLS OF
MUSLIM PERSONAL LAW VIZ. HANAFI, HANBALI, SHAFA’I AND MALIKI;
AND THEREFORE INTRA VIRES THE CONSTITUTION OF INDIA…..…26
IV. THE PROVISIONS OF THE MUSLIM PERSONAL LAWS SOUGHT TO BE

REVIEWED BY WAY OF THE PRESENT PETITION ARE PROTECTED BY
ARTICLES 25 AND 26 READ WITH ARTICLE 29 OF THE CONSTITUTION
OF INDIA……………………………………………………………………….31
Page 2 of 36
V. THE FIFTH MARRIAGE OF RIZWAN AHMED WITH AFREEN

REHMAN IS VALID AND HE CANNOT BE PROSECUTED FOR AN
OFFENCE OF RAPE AND KINANPPING. ……………………………………...….32
[A.] Fifth marriage of rizwan ahmed with afreen rehman is valid ............................32
[B.] Rizwan Ahmed cannot be prosecuted for an offence of rape and kinanpping….33
PRAYER………………………………………………………….…………..……………. 36
Page 3 of 36
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 Forms of

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
Page 4 of 36
INDEX OF AUTHORITIES
I. CASES
1. Ahmedabad Women Action Group v. Union of India (1997) 3 SCC 573

2. Bombay v. Narasu Appa Mali (AIR 1952 Bom 84)
3. Dilip Singh Alias Dilip Kumar v. State of Bihar, 2005 (1) SCC 88
4. Krishna Singh v. Mathura Ahir (1981) 3 SCC 689
5. Maharishi Avadesh v. Union of India (1994) Suppl. (1) SCC 713
6. Madhu Kishwar v. State of Biha (1996) 5 SCC 125
7. N. Jaladu case, ILP (1913) 36 Mad 453
8. Shabnam Hashmi v. Union of India (2014) 4 SCC 1
9. Shamim Ara v. State of UP (2002) 7 SCC 518
10. Swamiar of Sri Shirur Mutt AIR 1954 SC 282, 1954 SCR 1005
11. Syedna Taher Saifuddin Saheb v. State of Bombay, 1962 Supp (2) SCR 496
12. The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha
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
Page 5 of 36
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
V. MISCELLANEOUS
1. BLACK‟S LAW DICTIONARY
2. MUSLIM LAW IN MODERN INDIA
Page 6 of 36
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.
The Respondent humbly submits to the jurisdiction of the Hon‟ble Court.
Page 7 of 36
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,
Page 8 of 36
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 (as claimed by the Petitioner). On persuasion he
Page 9 of 36
had Nikah with her in a simple 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”
Page 10 of 36
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.
Page 11 of 36
ISSUES RAISED
I.
WHETHER THE PRESENT PETITION IS MAINTAINABLE? WHETHER THE MUSLIM

PERSONAL LAWS CAN BE TESTED AS BEING VIOLATIVE OF PART III OF THE
CONSTITUTION?
II.
WHETHER THE COURT OF LAW CAN INTERPRET RELIGIOUS SCRIPTURES OF

ANY RELIGIOUS DENOMINATION CONTRARY TO THE INTERPRETATION PUT ON IT
DENOMINATION?
III.
WHETHER THE IMPUGNED PRINCIPLES OF MUSLIM PERSONAL LAW, TRIPLE TALAQ

IN ONE SITTING, HALALA AND POLYGAMY, FORM AN ESSENTIAL PART OF
THE RELIGION OF ISLAM AS INTERPRETED BY FOUR SCHOOLS OF MUSLIM
PERSONAL LAW VIZ. HANAFI, HANBALI, SHAFA‟I AND MALIKI; AND
THEREFORE INTRA VIRES THE CONSTITUTION OF INDIA?
IV.
WHETHER THE PROVISIONS OF THE MUSLIM PERSONAL LAWS SOUGHT TO BE

REVIEWED BY WAY OF THE PRESENT PETITION ARE PROTECTED BY ARTICLES 25
AND 26 READ WITH ARTICLE 29 OF THE CONSTITUTION OF INDIA?
V.
WHETHER THE FIFTH MARRIAGE OF RIZWAN AHMED WITH AFREEN REHMAN IS

VALID? AND CAN HE BE PROSECUTED FOR AN OFFENCE OF RAPE AND
KIDNANPPING?
Page 12 of 36
SUMMARY OF ARGUMENTS
I. WHETHER THE PRESENT PETITION IS NOT MAINTAINABLE. THE MUSLIM

PERSONAL LAWS CANNOT BE TESTED AS BEING VIOLATIVE OF PART III OF THE
CONSTITUTION.
Present Petition IS not maintainable as the Petitioner seeks to enforce Fundamental Rights
against private parties. It is submitted that the protection guaranteed by the Arts. 14, 15 and
21 is intended to be available against the- Legislature and the Executive and not against
private individuals. It is submitted that in the present case, the Petitioner is seeking judicial
orders which are completely outside the purview of Art. 32. Private Rights cannot be
enforced against individual citizens under Article 32(1). Present petition is misconceived as
they are based on incorrect understanding of the Muslim Personal law as followed by four
schools of Sunni Persuasions, namely Hanafi, Shafi'i, Maliki and Hanbali.
__________________________________________________________________________.
II. THE COURT OF LAW CANNOT INTERPRET RELIGIOUS SCRIPTURES OF ANY

RELIGIOUS DENOMINATION CONTRARY TO THE INTERPRETATION PUT ON IT BY
THE RELIGIOUS BOOKS AND AUTHORITIES, HELD AUTHENTIC BY SUCH
DENOMINATION.
The preamble of the Constitution clearly enshrines values of liberty of thought, expression,
belief, faith, worship. Further, Art. 25 of the Constitution, guarantees freedom of conscience
and freedom to profess, practice and propagate religion. Art. 25 guarantees individual
freedom of conscience subject to public order, morality and health and to the other provisions
of the third part of the Constitution. Art. 26 of the Constitution grants freedom to every
religious denomination or any section thereof to manage its own affairs “in matters of
religion”.
________________________________________________________________
III.THE IMPUGNED PRINCIPLES OF MUSLIM PERSONAL LAW, TRIPLE TALAQ IN

ONE SITTING, HALALA AND POLYGAMY, FORM AN ESSENTIAL PART OF THE
RELIGION OF ISLAM AS INTERPRETED BY FOUR SCHOOLS OF MUSLIM PERSONAL
LAW VIZ. HANAFI, HANBALI, SHAFA‟I AND MALIKI; AND THEREFORE INTRA
Page 13 of 36
VIRES THE CONSTITUTION OF INDIA.
Islam, essentially, divorce is undesirable, without a valid and compelling ground and that it is
permissible only when it is wholly unavoidable. It is submitted that though pronouncement of
Triple Talaq in one go is undesirable but irrevocably effective. According to four schools of
Sunni Persuasions, namely Hanafi, Shafi'i, Maliki and Hanbali, the number of
pronouncements are not linked with one or more sessions. It is the number of times „Talaq‟ is
pronounced that effectuates Talaq. If one does so twice, it will count as two, and if thrice,
then it will count as three pronouncements, which will dissolve the marriage with immediate
effect.
________________________________________________________________
IV.THE PROVISIONS OF THE MUSLIM PERSONAL LAWS SOUGHT TO BE REVIEWED

BY WAY OF THE PRESENT PETITION ARE PROTECTED BY ARTICLES 25 AND 26
READ WITH ARTICLE 29 OF THE CONSTITUTION OF INDIA.
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 VALID

AND HE CANNOT BE PROSECUTED FOR AN OFFENCE OF RAPE AND KINANPPING.
The marriage performed by Rizwan Ahmed with his 5th wife i.e. Afreen Rehman is valid. As
it is well settled that according to Muslim law a Muslim male can pronounce „Talaq, Talaq,
Talaq‟ in the presence of two witnesses and after which the divorce between the Muslim
couple is set to be legal. This process of divorce is recognized in S. 2 of Sharia (Muslim
personal law). Further consent plays a major role in case of rape. And as already argued
above probability cannot be ruled out that Afreen was a consenting party in rape. It is also
Page 14 of 36
crystal clear from the above case law that it is necessary for court to scrutinize the evidence
properly.
________________________________________________________________
Page 15 of 36
ARGUMENTS ADVANCED
I. THE PRESENT PETITION IS NOT MAINTAINABLE UNDER ARTICLE 32. THE

MUSLIM PERSONAL LAWS CANNOT BE TESTED AS BEING VIOLATIVE OF PART
III OF THE CONSTITUTION.
[A.] THE PRESENT PETITION IS NOT MAINTAINABLE UNDER ARTICLE 32

Present petition seek to enforce fundamental rights against private parties.
1.1 At the outset, it is submitted that the present Petition is not maintainable as the
Petitioner seeks to enforce Fundamental Rights against private parties. It is submitted
that the protection guaranteed by the Arts. 14, 15 and 211 is intended to be available
against the Legislature and the Executive and not against private individuals. It is
submitted that in the present case, the Petitioner is seeking judicial orders which are
completely outside the purview of Art. 322. Private Rights cannot be enforced against
individual citizens under Art. 32(1).3
Issues arising in the present petition concern legislative policy.
1.2 In any event the issues raised by the way of the Present Petition are matters of legislative
policy and fall outside the sphere of the judiciary. This Hon‟ble Court has already taken
the view in several cases including the cases reported in Krishna Singh v. Mathura
Ahir, 4Maharishi Avadesh v. Union of India5, Madhu Kishwar v. State of Bihar6 and
Ahmedabad Women Action Group v. Union of India7, wherein identical questions had
been raised, that such questions do not fall within the ambit of judicial review.
1.3 The questions being examined by this Hon‟ble Court in the present matter have already
been examined by this Court in Ahmedabad Women Action Group v. Union of India8.
In that case, inter alia the following issues were considered by this Hon‟ble Court: -
1
Article 14, 15 and 21 of Constitution of India
2
Article 32 of Constitution of India
3
Article 32 Cl.1 of Constitution of India
4
Krishna Singh v. Mathura Ahir (1981) 3 SCC 689
5
Maharishi Avadesh v. Union of India (1994) Suppl. (1) SCC 713
6
Madhu Kishwar v. State of Biha (1996) 5 SCC 125
7
Ahmedabad Women Action Group v. Union of India (1997) 3 SCC 573
8
Ahmedabad Women Action Group v. Union of India(1997) 3 SCC 573 (AWAG Case)
Page 16 of 36
i. “Whether Muslim Personal Law which allows Polygamy is void as offending

Articles 14 and 15 of the Constitution?
ii. Whether Muslim Personal Law which enables a Muslim male to give unilateral
Talaq to his wife without her consent and without resort to judicial process of
courts is void as it offends Articles 13, 14 and 15 of the Constitution?
iii. Whether the mere fact that a Muslim Husband takes more than one wife is an act
of cruelty?”
1.4 While considering the above issues this Hon‟ble Court declined to entertain the above
mentioned issues stating that these were matters wholly involving issues of State Policies
with which the Court will not ordinarily have any concern. This Hon‟ble Court also held
that these issues are matters which are to be dealt with by the legislature.
1.5 Even prior to the decision in AWAG Case, this Hon‟ble Court in the case of Maharshi
Avadhesh v. Union of India9, had taken a similar view. In that case a petition under
Article 32 of the Constitution of India was filed seeking: -
i. “A writ of mandamus to the respondents to consider the question of enacting
a common Civil Code for all citizens of India.
ii. To declare Muslim Women (Protection of Rights on Divorce) Act, 1986 as
void being arbitrary and discriminatory and in violation of Articles 14 and
15 Fundamental Rights and Articles 44, 38, 39 and 39-A of the Constitution
of India.
iii. To direct the respondents not to enact Shariat Act in respect of those
adversely affecting the dignity and rights of Muslim women and against their
protection.”
1.6 This Hon‟ble Court while dismissing the Writ Petition observed that- “These are all
matters for legislature. The Court cannot legislate in these matters.”
[B.] THE MUSLIM PERSONAL LAWS CANNOT BE TESTED AS BEING VIOLATIVE

OF PART III OF THE CONSTITUTION.
i. Whether the expression ‘Law in force’ used in Article 13(1) includes ‘Personal
Law’?
9
Maharshi Avadhesh v. Union of India 1994 Supp (1) SCC 713
Page 17 of 36
1.7 Justice Chagla in State of Bombay v. Narasu Appa Mali 10, observed as follows:
“That this distinction is recognized by the Legislature is clear if one looks to the
language of S. 11211, Government of India Act, 1915. That section deals with the law
to be administered by the High Courts and it provides that the High Courts shall, in
matters of inheritance and succession to lands, rents and goods, and in matters of
contract and dealing between party and party, when both parties are subject to the
same personal law or custom having the force of law, decide according to that
personal law or custom, and when the parties are subject to different personal laws
or customs having the force of law, decide according to the law or custom to which
the defendant is subject. Therefore, a clear distinction is drawn between personal
law and custom having the force of law. This is a provision in the Constitution Act,
and having this model before them the Constituent Assembly in defining “law” in
Art. 13 12have expressly and advisedly used only the expression “custom or usage”
and have omitted personal law. This, in our opinion, is a very clear pointer to the
intention of the Constitution-making body to exclude personal law from the
purview of Art. 13. There are other pointers as well. Art. 1713 abolish
untouchability and forbids its practice in any form. Art. 2514(2)(b) enables the
State to make laws for the purpose of throwing open of Hindu religious institutions
of a public character to all classes and sections of Hindus. Now, if Hindu personal
law became void by reason of Art. 13 and by reason of any of its provisions
contravening any fundamental right, then it was unnecessary specifically to provide
in Art. 17 and Art. 25(2)(b) for certain aspects of Hindu personal law which
contravened Arts. 14 and 15. This clearly shows that only in certain respects has the
Constitution dealt with personal law. The very presence of Art. 4415 in the
Constitution recognizes the existence of separate personal laws, and Entry No. 5 in
the Concurrent List gives power to the Legislatures to pass laws affecting personal
law. The scheme of the Constitution, therefore, seems to be to leave personal law
unaffected except where specific provision is made with regard to it and leave it to
the Legislatures in future to modify and improve it and ultimately to put on the
10
Bombay v. Narasu Appa Mali (AIR 1952 Bom 84)
11
Section 112 Government of India Act, 1915
12
Article 13 of Indian Constitution
13
14
Article 25 cl. 2 of Indian Constitution
15
Page 18 of 36
statute book a common and uniform Code. Our attention has been drawn to S. 292,
Government of India Act, 1935, which provides that all the law in force in British
India shall continue in force until altered or repealed or amended by a competent
Legislature or other competent authority, and S. 293 deals with adaptation of
existing penal laws. There is a similar provision in our Constitution in Art. 372(1)16
and Art. 372(2). It is contended that the laws which are to continue in force under
Art. 372(1) include personal laws, and as these laws are to continue in force subject
to the other provisions of the Constitution, it is urged that by reason of Art. 13(1)
any provision in any personal law which is inconsistent with fundamental rights
would be void. But it is clear from the language of Arts. 372(1) and (2) that the
expression “laws in force” used in this article does not include personal law
because Art. 373(2) entitles the President to make adaptations and modifications to
the law in force by way of repeal or amendment, and surely it cannot be contended
that it was intended by this provision to authorize the President to make alterations
or adaptations in the personal law of any community. Although the point urged
before us is not by any means free from difficulty, on the whole after a careful
consideration of the various provisions of the Constitution, we have come to the
conclusion that personal law is not included in the expression “laws in force” used
in Art. 13(1).
17
1.8 Further, Justice Gajendragadkar in State of Bombay v. Narasu Appa Mali observed
as follows: “The Constitution of India itself recognizes the existence of these personal
laws in terms when it deals with the topics falling under personal law in Entry 5 in the
Concurrent List— List III. This Entry deals with the topics of 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. Thus it is competent either to the State or the Union Legislature to legislate on
topics falling within the purview of the personal law and yet the expression “personal
law” is not used in Art. 13, because, in my opinion, the framers of the Constitution
wanted to leave the personal laws outside the ambit of Part III of the Constitution. They
must have been aware that these personal laws needed to be reformed in many material
particulars and in fact they wanted to abolish these different personal laws and to
16
Article 372 cl.1 of Indian Constitution
17
State of Bombay v. Narasu Appa Mali (AIR 1952 Bom 84),
Page 19 of 36
evolve one common code. Yet they did not wish that the provisions of the personal
laws should be challenged by reason of the fundamental rights guaranteed in Part III of
the Constitution and so they did not intend to include these personal laws within the
definition of the expression “laws in force.” Therefore, I agree with the learned Chief
Justice in holding that the personal laws do not fall within Art. 13(1) at all.”
1.9 This view has been confirmed by this Hon‟ble Court in Ahmedabad Women Action
Group v. Union of India18. In view of the position that provisions of personal laws
cannot be challenged by the reason of fundamental rights, it is submitted that this
Hon‟ble Court cannot consider the constitutional validity of the principles of Muslim
Personal law relating to Triple Talaq in one sitting, halala and polygamy.
1.10 It is submitted as under:
ii. Present petition is misconceived as it is based on incorrect understanding of
the Muslim Personal law as followed by four schools of Sunni Persuasions,
namely Hanafi, Shafi'i, Maliki and Hanbali.
1.11 It is submitted that the Present Petition are misconceived as they are based on
incorrect understanding of the Muslim Personal law as followed by four schools of Sunni
Persuasions, namely Hanafi, Shafi'i, Maliki and Hanbali. It is relevant to note that the
issue concerning Triple Talaq has already been decided by this Hon‟ble Court in the case
of Shamim Ara v. State of UP19, wherein this Hon‟ble Court has placed explicit
measures to check the pronouncement of Triple Talaq by the husband by laying the
down test of “reasonable cause” and “prior reconciliation”. The principles laid down in
Shamim Ara are the law as declared by this Hon‟ble Court and as such a binding
precedent. In view of the ratio of the decision in Shamim Ara, the validity of Triple
Talaq in one sitting is not res integra, the law in this respect has already been declared
by this Hon‟ble Court unless it is reviewed/re-considered by this Hon‟ble Court.
1.12 Further the concept of “halala” is misunderstood by the Petitioners. It is submitted
that when a Muslim woman is divorced, she is prohibited from marrying her former
husband unless she has an intervening marriage with another man, this concept of
intervening marriage is distortedly called Nikah halala by the Petitioners/Opponents.
There is no concept of “nikah halala” in Islamic Jurisprudence. Further, this concept of
“halala” is grossly misunderstood, it is submitted that this procedure needs to be
followed only if the woman has been divorced from her first husband by way of Triple
18
Ahmedabad Women Action Group v. Union of India (1997) 3 SCC 573
19
Shamim Ara v. State of UP (2002) 7 SCC 518
Page 20 of 36
Talaq. In the other nine forms of separation, the process of Halala is not a precondition
for the woman to marry her former husband. Further, the intervening marriage of the
woman should happen in usual course, with the solemn intention of living with the
subsequent husband, and the consequent separation should also be under natural course
due to his death or divorce. In fact, there are unequivocal and unambiguous Hadiths of
the Prophet Muhammad (PBUH) where mock marriages and mock divorces are reported
to be a cause of curse from the Almighty Allah. It is in the said Hadiths that the reference
to the term “Halala” is found, though it is not mentioned in the Noble Quran. Whereas in
any case, the term “Nikah Halala” is not found even in Hadith. The Hadith of the
Prophet Muhammad (Peace be upon Him) in condemning “Halala” are as follows:
“Allah‟s curse is on the one who makes a contract or agreement for

Halala (Both the one who carries out Halala and the one who it is done
for.” (Sunan al Darami / Mishkat al Masabih)
“Allah has cursed the muhallil (one who marries a woman and divorces
her so that she can go back to her first husband) and the muhallal lahu
(first husband).”
___________________________________________________________________________
II.THE COURT OF LAW CANNOT INTERPRET RELIGIOUS SCRIPTURES OF ANY

RELIGIOUS DENOMINATION CONTRARY TO THE INTERPRETATION PUT ON IT
DENOMINATION.
2.1 The preamble of the Constitution clearly enshrines values of liberty of thought,
expression, belief, faith, worship. Further, Art. 25 of the Constitution, guarantees
freedom of conscience and freedom to profess, practice and propagate religion. Art.
25 guarantees individual freedom of conscience subject to public order, morality and
health and to the other provisions of the third part of the Constitution. Art. 26 of the
Constitution grants freedom to every religious denomination or any section thereof
to manage its own affairs “in matters of religion”. Interpreting the aforesaid Articles,
this Hon‟ble Court in the case of The Commissioner, Hindu Religious
Page 21 of 36
Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt20

has held that “those Articles protect the essential part of religion and further that
when a question arises as to what constitutes essential part of religion, the same
should primarily be ascertained with reference to the Doctrines of that religion
itself.”
2.2 This Hon‟ble Court in Krishna Singh v. Mathura Athir21, has held that “the Part III
of the Constitution does not touch upon the personal laws of the parties.” This
Hon‟ble Court also observed that the “High Court in applying the personal laws of
the parties could not introduce its own concepts of modern times but should enforce
the law as derived from recognized and authoritative sources.” It is submitted that
since Part III of the Constitution does not touch upon the personal laws of the parties,
this Hon‟ble Court cannot examine the question of constitutional validity of the
impugned principles of Muslim Personal law, i.e. Triple Talaq in one sitting, halala
and polygamy as followed by four schools of Sunni Persuasions, namely Hanafi,
Shafi'i, Maliki and Hanbali.
22
2.3 Even the Hon‟ble Bombay High Court in State of Bombay v. Narasu Appa Mali
had observed that “the framers of the Constitution wanted to leave the personal laws
outside the ambit of Part III of the Constitution as they were aware that these
personal laws needed to be reformed in many material particulars and they did not
wish that the provisions of the personal laws should be challenged by reason of the
fundamental rights guaranteed in Part III of the Constitution and accordingly they did
not intend to include these personal laws within the definition of the expression “laws
in force.”” Therefore, personal laws do not fall within Art.13 (1) and consequently
cannot be challenged on the ground of being violative of Part III of the Constitution of
India.
2.4 This view has been affirmed by this Hon‟ble Court in Ahmedabad Women Action
Group v. Union of India23. In view of the position that provisions of personal laws
cannot be challenged by the reason of fundamental rights, it is submitted that this
Hon‟ble Court cannot consider the constitutional validity of the impugned principles
of Muslim Personal law, i.e. Triple Talaq in one sitting, halala and polygamy as
20
The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt AIR 1954 SC 282, 1954
SCR 1005
21
Krishna Singh v. Mathura Athir(1981) 3 SCC 689
22
State of Bombay v. Narasu Appa Mali (AIR 1952 Bom 84)
23
Ahmedabad Women Action Group v. Union of India(1997) 3 SCC 573
Page 22 of 36
followed by four schools of Sunni Persuasions, namely Hanafi, Shafi'i, Maliki and
Hanbali.
2.5 Additionally, it is submitted that personal laws do not derive their validity on the
ground that they have been passed or made by a legislature or other competent
authority. The foundational sources of personal law are their respective scriptural
texts. The Mohammedan Law is founded essentially on the Holy Quran and sources
based on the Holy Quran and thus it cannot fall within the purview of the expression
“laws in force” as mentioned in Art. 13 of the Constitution of India, and hence its
validity cannot be tested on a challenge based on Part III of the Constitution.
2.6 As averred above, it is these foundational principles which are the basis of Muslim
Personal Law and like any other religion, they are peculiar to Islam and cannot be
challenged on the ground of being violative of Part III of the Constitution of India.
2.7 The Hon‟ble High Court of Bombay, in the case of The State Of Bombay vs Narasu
Appa Mali (Supra) has clarified that Art. 13 of the Constitution of India does not
provide for “personal laws”. It has been clarified that the words “a custom or usage”
in Art. 13(3) cannot subsume personal laws. A Custom or usage is distinct from
Personal Law and many a time, exceptions to personal laws. This is further
supported by the fact that Entry 5 in List III expressly mentions the phrase „personal
law‟ which implies first, that the omission in Art. 13(3) (a) was conscious and
secondly, that the intention of the Framers was to leave it to the legislature to reform
personal laws and not subject them to scrutiny by the judiciary. Further, Section 112
of the Government of India Act, 1915, one of the models that were before the
Constituent Assembly in the drafting of the present Constitution used both the
phrases custom and usage and personal law separately. The latter phrase was
however, omitted in later drafts. Moreover, if personal laws were open to scrutiny
under Article 13, both Art. 17 and Art. 25(2) (b) would be rendered redundant. This
is because the evils that these Articles aim to curb would anyway be remediable as a
violation of fundamental rights.
2.8 It is therefore submitted that since Part III of the Constitution does not touch upon
the personal laws of the parties, this Hon‟ble Court cannot examine the question of
constitutional validity of the impugned principles of Muslim Personal law, i.e. Triple
Talaq in one sitting, halala and polygamy as followed by four schools of Sunni
Persuasions, namely Hanafi, Shafi'i, Maliki and Hanbali.
Page 23 of 36
2.9 Therefore, Constitutional scheme clearly provides that judiciary which is one of the
important organs of the State shall not lay down religion for any religious
denomination or section thereof and whenever the Court is confronted with any
religious issues, it will look to the religious books of a particular denomination held
sacred by it. In other words, there is no scope for the Court to import its own views
while dealing with the religious questions or scriptures or beliefs of any religious
denomination. In fact the Courts have consistently resisted the temptation to embark
on hazardous adventure to interpret religious scriptures.
[A.] COURTS OUGHT TO APPLY THE PRINCIPLE OF JUDICIAL RESTRAINT,

AND SHOULD NOT DEAL WITH THE ISSUE OF CONSTITUTIONAL
INTERPRETATION UNLESS SUCH AN EXERCISE IS BUT UNAVOIDABLE.
2.10.It is submitted that this Hon‟ble Court in Shabnam Hashmi v. Union of India24,
this Hon‟ble Court has held that, “Personal law would always continue to govern
any person who chooses to submit himself to such law until such time that the vision
of a Uniform Civil Code is not achieved. This Court further held that, it was a well
settled principle of judicial restraint that required that the Courts to not deal with
issues of constitutional interpretation unless such an exercise was but
unavoidable.”
2.11.It is submitted that in the present matters also, all Muslims do have a choice of
submitting themselves to Personal law or non- denominational law, for instance a
Muslim marriage can be registered under S. 1525 of the Special Marriage Act,1954
if the parties so desire, such registration will take the marriage out of the purview of
24
Shabnam Hashmi v. Union of India (2014) 4 SCC 1
25
Section 15 of the Special Marriage Act,1954: 15. Registration of marriages celebrated in other forms.—Any marriage celebrated, whether
before or after the commencement of this Act, other than a marriage solemnized under the 1Special Marriage Act, 1872 (III of 1872) or under this
Act, may be registered under this Chapter by a Marriage Officer in the territories to which this Act extends if the following conditions are
fulfilled, namely:—
i. a ceremony of marriage has been performed between the parties and they have been living together as husband and wife ever
since;
ii. neither party has at the time of registration more than one spouse living;
iii. neither party is an idiot or a lunatic at the time of registration;
iv. the parties have completed the age of twenty-one years at the time of registration;
v. the parties are not within the degrees of prohibited relationship: Provided that in the case of a marriage celebrated before the
commencement of this Act, this condition shall be subject to any law, custom or usage having the force of law governing each of
them which permits of a marriage between the two; and
vi. the parties have been residing within the district of the Marriage Officer for a period of not less than thirty days immediately
preceding the date on which the application is made to him for registration of the marriage.
Page 24 of 36
Muslim Personal Law and the relationship of the parties would then be governed by
the provisions of the Special Marriage Act,1954. A similar provision can be seen in
26
the Muslim Women (Protection of Rights on Divorce) Act, 1986, S. 5 of which
gives the parties an option to be governed by S. 12527 and 128 of the Code of
Criminal Procedure, 1973. Thus, the parties always have the option of choosing
whether their marriage should be governed by Muslim Personal Law or other non-
denominational laws.
2.12.Thus, in such circumstances when it is open for all Muslims to choose to be
governed by either their own personal law or a non- denominational law, this
Hon‟ble Court ought to exercise judicial restraint and should not prevent any
Muslim from following or deviating from his own personal law which he himself
has chosen to submit himself to.
[B.] ISLAM TREATS THE RELATIONSHIP OF MARRIAGE IN SUBSTANCE A CIVIL

CONTRACT BEARING SPIRITUAL AND MORAL OVERTONES AND
UNDERTONES:
2.13.It is submitted that Shariat laws aim for life long relationship among husband and
wife and provide for all possible means to prevent break down of a marriage. It
regards Talaq (Dissolution of Marriage) as the last resort. Shariat regards marriage
as devotion and reward is promised on all activities incidental to marriage so that
Muslims consider it with due respect as any other worshiping activity. Unlike
other personal laws, Shariat law does not keep marriage indissoluble or compel
husband and wife to stay in marriage despite all unbearable hurdles from either
side of marriage.
2.14.Like the parties negotiate Mehr before entering into matrimonial relationship, they
are free to decide upon mutually agreed upon terms about following the procedure
of Talaq within the permitted larger Islamic Sharia stating that they shall be
governed by the School of Islamic law which does not recognize three
26
Section 5 Women (Protection of Rights on Divorce) Act, 1986: Option to be governed by the provisions of section 125 to 128 of Act 2 of
1974.—If, on the date of the first hearing of the application under sub-section (2) of section 3, a divorced woman and her former husband declare,
by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be
governed by the provisions of sections 125 to 128 of the Code of Criminal Procedure, 1973 (2 of 1974); and file such affidavit or declaration in the
court hearing the application, the Magistrate shall dispose of such application accordingly. Explanation.—For the purposes of this section, “date
of the first hearing of the application” means the date fixed in the summons for the attendance of the respondent to the application.
27
Section 125 and 128 of Code of Criminal Procedure
Page 25 of 36
pronouncements of Talaq coming into effect instantaneously, if pronounced in one

sitting.
2.15.In other words, the parties to marriage in Islam have always had the choice of
agreeing upon the procedure of divorce, as permitted. However, if the parties follow
a particular school of Islamic thought, in absence of any thing contrary to that
school, the parties‟ rights and obligations shall be governed as per the school they
belong to. No one shall be permitted to import a principle of another school to
justify the validity of provision of a separate school of thought of Islam.
__________________________________________________________________________
III. THE IMPUGNED PRINCIPLES OF MUSLIM PERSONAL LAW, TRIPLE TALAQ IN

ONE SITTING, HALALA AND POLYGAMY, FORM AN ESSENTIAL PART OF
THE RELIGION OF ISLAM AS INTERPRETED BY FOUR SCHOOLS OF
MUSLIM PERSONAL LAW VIZ. HANAFI, HANBALI, SHAFA’I AND MALIKI;
AND THEREFORE INTRA VIRES THE CONSTITUTION OF INDIA.
I. Re Triple Talaq
3.1.It is submitted that in Islam, essentially, divorce is undesirable, without a valid and
compelling ground and that it is permissible only when it is wholly unavoidable. It is
submitted that though pronouncement of Triple Talaq in one go is undesirable but
irrevocably effective. According to four schools of Sunni Persuasions, namely
Hanafi, Shafi'i, Maliki and Hanbali, the number of pronouncements are not linked
with one or more sessions. It is the number of times „Talaq‟ is pronounced that
effectuates Talaq. If one does so twice, it will count as two, and if thrice, then it will
count as three pronouncements, which will dissolve the marriage with immediate
effect. The Quran itself declares, that:-
“Divorce is twice; then either to retain in all fairness, or to release nicely. It is not
lawful for you to take back anything from what you have given them, unless both
apprehend that they would not be able to maintain the limits set by Allah. Now, if you
apprehend that they would not maintain the limits set by Allah, then, there is no sin on
them in what she gives up to secure her release. These are the limits set by Allah.
Page 26 of 36
Therefore, do not exceed them. Whosoever exceeds the limits set by Allah, then, those
are the transgressors.”28
3.2.Imam Bukhari, an Islamic scholar who authored one of the most authentic (sahih)
hadith collections, interprets the abovementioned verse in the sense that Triple Talaq
becomes effective, since three pronouncements complete the process of divorce and
the third pronouncement terminates the marriage with immediate effect. His chapter
heading runs thus: “The stance of those who take the Quranic statement: „Divorce can
be pronounced twice, then either honorable retention or kind release‟, to mean that
Triple Talaq becomes effective.”29
3.3.In view of the above, it is clear that though pronouncement of talaq thrice at one go is
undesirable but in view of the aforesaid verse of the Holy Quran, it is clear that three
pronouncements, howsoever they may be made result in valid dissolution of marriage.
Thus, once three pronouncements of divorce are made, the marriage dissolves and the
woman becomes unlawful or haram to the man who had pronounced divorce.
3.4.It is further submitted that the Holy Quran mandates every follower of Islam to obey
Allah and the Messenger30. Further, the Holy Quran also clarifies that when Allah and
his Messenger have decided a matter, the believers cannot defer from the said
decision, in fact if the believer ignores the said decision and follows a course of his
own choice, he is said to have strayed away in manifest error31. It has also been stated
in the Holy Quran that the believer is bound to accept the command of the Messenger
and is bound to avoid whatever the Messenger forbids32. Thus, it is an integral part of
the religion of Islam that all Muslims must abide by the decision of Allah and his
Messenger, and when the Messenger has directed the followers to do a certain thing
they are duty bound to do it.
3.5. There is no hadith of the Prophet (PBUH) stating that pronouncement of triple talaq
in one instance/sitting is not valid or ineffective, rather, in view of a direct command
of the Prophet (PBUH) (Messenger), no Muslim can be said to have any choice in
the matter and thus even though Triple Talaq in one go is an undesirable form of
divorce, the dissolution of marriage thereafter is incumbent.
28
[Surah-Al- Baqarah 2:229]
29
Bukhari, 2, 791
30
The Apostle of Allah (PBUH)] (Surah-Al-Nisa 4:59, Surah-Al-Anfal 8:20)
31
(Surah-Al-Ahzab 33:36)
32
Surah-Al- Hashr 59:7
Page 27 of 36
3.6.Further, as mentioned above, the Holy Quran ordains that once three pronouncements
of talaq are made, the wife becomes unlawful or Haram to her former husband, unless
the process of halala takes place in its natural course. The pronouncement of third
talaq and its irrevocability is explicitly given in Quran 33. In such circumstances, it is
forbidden for the former husband to take the wife back into marriage again, unless she
marries another person of her choice and such marriage comes to an end owing to
death or by divorce. Therefore, there is no bar upon her to marry yet again with
person of her choice and this time she may out of her own free will agree to marry her
former husband. The objective is to enable a divorcee woman to remarry out of her
own free will and choice. The rule also achieves the objective of protecting a divorcee
(on whom triple talaq is pronounced) from being forced into marital relation with
anyone particularly by former husband who may be in a position to apply force upon
her and restrain her from marrying another person of her choice; a peculiar threat of
male chauvinism dominant in male dominated society. So far as the rule also serves
the other object of removing taboo upon widow remarriages as there is a clear
indication that in the event of the second marriage of a divorcee to another person of
her choice ending in the death of her second husband, she is free to remarry out of her
own free will with her former husband.
3.7.Any deviation from such a Quranic injunction would be going against the ipsissima
verba of Almighty himself and such an act would be going against the very integral
practice of Islam and would be disregarding the precise directions of Allah and also
his messenger, Prophet (PBUH), which is nothing but a sin and as per the Holy Quran
34
, such an action would show that the believer has strayed away from the religion in
manifest error.
3.8.Furthermore, as ordained by the Holy Quran, all Muslims are bound to accept the
command of the Messenger and are bound to avoid whatever the Messenger forbids
35
and when the Prophet has categorically directed separation of parties after Triple
Talaq in one go and has ruled that if the former husband takes the woman back into
marriage, he will be committing a sin (Sunan Bayhaqi, 7, 334, Hadith number:
14955), then no believer has a choice to take the woman back into marriage after
pronouncing Triple Talaq and such an act is nothing but a sin. Moreover, the
33
Surah-Al-Baqarah 2:230
34
Surah-Al-Ahzab 33:36
35
Surah-Al-Hashr 59:7
Page 28 of 36
consequences of committing such a sin would be far more adverse as the children
born out of such a relationship would be illegitimate and their rights of inheritance in
his putative father‟s estate would also be questionable.
3.9.In view of the aforementioned, if this Hon‟ble Court holds that Triple Talaq in one
sitting is not a valid form of effecting a divorce, then that would amount to re-writing
the Holy Quran itself, which is nothing but the ipissima verba of the Almighty
himself and is the entire genesis of Islam. Such an alteration of the specific verses of
the Holy Quran would actually amount to altering the very essence of the religion of
Islam.
3.10. It is submitted that the Holy Quran provides a comprehensive way of life for
each Muslim and it is nothing but the direct word of Allah himself and any
modification/dilution in the text of this Holy Book would amount to erasing the very
basis of the entire religion of Islam, which is not permissible in view of the protection
guaranteed by Art. 25 of the Constitution of India. If such casual denunciation of the
verses of the Holy book is permitted, then soon the religion of Islam would cease to
exist.
3.11. Accordingly, it is submitted that though Triple Talaq in one sitting is an
unusual mode of divorce in Islam, it cannot be declared to be invalid in the light of the
direct verses of the Holy Quran and categorical command of the Messenger of Allah.
II. Re Polygamy
3.12. Coming to polygamy, it is submitted that the Quran, Hadith and the consensus
view allow Muslim men to have up to 4 wives at a time. Though polygamy is
permitted, it is not obligatory or encouraged; rather, jurists regard monogamy as a
better practice in usual conditions. However, Polygamy meets social and moral needs
and the provision for it stems from concern for women. The policy of Islam is to
discourage Polygamy but not to prohibit it. Islam encourages monogamy but does not
make it mandatory.
The Quran lays down this permission thus:-
“If you fear that you will not do justice to the orphans, then, marry the women you
like, in twos, in threes and in fours. But, if you fear that you will not maintain equity,
Page 29 of 36
then (keep to) one woman, or bondwomen you own. It will be closer to abstaining
from injustice.”36
3.13. All jurists therefore maintain that one may have up to four wives. However,
this permission is tied up with justice to all. Only he who can treat all his wives
equally in fulfilling his obligations to them may have more than one wife.
3.14. There is a severe warning for him who does not treat his wives justly. The
Prophet (PBUH) cautioned: “If one has two wives and does not treat them justly, he
will appear on the Day of Judgment as one afflicted with paralysis.” (Al-Mustadraklil
Hakim, Kitab Al-Nikah, Hadith number: 2759)
3.15. Muslim jurists maintain that one should rest content with a single wife. The
Quran, no doubt, allows taking more than one wife. However, it does not prescribe it
as something mandatory, or even desirable. Yet, since polygamy is endorsed by
primary Islamic sources, it cannot be dubbed as something prohibited. This is
because, as per the Holy Quran, if something has been declared as lawful by the
Almighty then no one else can prohibit it37. The Quran proclaims: “O Prophet, why do
you ban (on yourself) something that Allah has made lawful for you, seeking to
please your wives? And Allah is Most-Forgiving, Very-Merciful”38
3.16. The aforesaid verse forbids that a lawful thing should be declared as unlawful
by anyone. When even the Prophet (PBUH) did not have this privilege, no one else
can prohibit something lawful. Elsewhere, the Quran says: Say, “Who has prohibited
the adornment Allah has brought forth for His servants, and the wholesome things of
sustenance?”39. One is thus not authorized to forbid what Allah has made lawful.
3.17. Thus, it is clear from the above that something declared lawful by the Quran and
Hadith, even if it be not something desirable, cannot be forbidden by State or by
judicial pronouncement, for it amounts to denying people their due. Thus, when the
Quran categorically permits polygamy, and also directs that the practices permitted
by the almighty cannot be forbidden by anyone else, not even the Prophet (PBUH),
in such circumstances, disallowing or forbidding polygamy would actually amount
to flagrant disregard of the Holy Quran and would lead to alteration of the verse of
the Holy Book , which is the foundation of the religion of Islam and the essence of
36
Surah-Al-Nisa, 4:3
37
Surah- Al-Tahrim, 66:1
38
Surah- Al-Tahrim, 66:1
39
Surah-Al-Araf 7:32
Page 30 of 36
which cannot be diluted by modifying or supplanting a different view than what has
been prescribed by the Almighty himself. It is reiterated that the Courts ought not to
supplant their own views in place of the verses of the Holy Quran, particularly when
the practices ordained by the Holy Quran are essential part of the religion of Islam as
Quran provides a comprehensive way of life for each Muslim and it is nothing but
the direct word of Allah himself.
3.18. In view of the above, it is submitted that Talaq, Halala and Polygamy are all
an integral part of religion of Sunni Muslims following four schools of thought
provided by the Holy Quran and thus being essential to the religion of Islam are
protected by virtue of Arts. 25, 26 and 29 of the Constitution.
3.19. It is quite manifest that the evolving legal culture in India recognizes sexual
relationship by a man outside his marriage. Under the Protection of Women from
Domestic Violence Act, 2005, a live-in relationship is recognized and the woman who
is in a live-in relationship is given rights of maintenance and residence. The legal
provisions clearly reflect the moral/normative standards prevalent in the society, that
being the case, a man taking more than one wife through marriage cannot be
stigmatized as immoral.
________________________________________________________________________
IV. THE PROVISIONS OF THE MUSLIM PERSONAL LAWS SOUGHT TO BE

REVIEWED BY WAY OF THE PRESENT PETITION ARE PROTECTED BY
ARTICLES 25 AND 26 READ WITH ARTICLE 29 OF THE CONSTITUTION OF
INDIA.
4.1.It is submitted that the issue of Muslim Personal Law is a cultural issue which is
inextricably interwoven with religion of Islam. Thus, it is the issue of freedom of
conscience and free profession, practice and propagation of religion guaranteed
under Art. 25 and 26 read with Art. 29 40of the Constitution of India.
4.2.The protection of Article 25 and 26 is not limited to matters of doctrine or belief, but
it extends to the acts done in pursuance of religion.
4.3.It is submitted that the principles of marriage and divorce differ in each religion.
Each religion views these principles in a different context and therefore the
40
Page 31 of 36
principles in each religion are unique and peculiar to that particular religion only. In
such circumstances, one cannot look at the validity of the principles of one religion
or judge them as being unequal with the rights in another religion because the
principles in each religion are peculiar to only that religion and these principles
have been cloaked with the protection under Art. 25, 26 and 29 so as to preserve the
uniqueness of each religion.
4.4.It is submitted that this Hon‟ble court in Syedna Taher Saifuddin Saheb v. State of
Bombay41, had held that the “protection of Arts. 25 and 26 was not limited to matters
of doctrine or belief but they extended also to acts done in pursuance of religion and
therefore contained a guarantee for rituals and observances, ceremonies and modes
of worship which are integral parts of religion. It was also held that what constituted
an essential part of religion or a religious practice had to be decided by the Courts
with reference to the doctrine of a particular religion and included practices which
are regarded by the community as a part of its religion.”
________________________________________________________________________
V. THE FIFTH MARRIAGE OF RIZWAN AHMED WITH AFREEN REHMAN IS

VALID AND CAN HE BE PROSECUTED FOR AN OFFENCE OF RAPE AND
KIDNANPPING.
[A.] FIFTH MARRIAGE OF RIZWAN AHMED WITH AFREEN REHMAN IS VALID
5.1. The Respondent most humbly and respectfully submits that the marriage performed by
Rizwan Ahmed with his 5th wife i.e. Afreen Rehman is valid. As it is well settled that
according to Muslim law a Muslim male can pronounce „Talaq, Talaq, Talaq‟ in the
presence of two witnesses and after which the divorce between the Muslim couple is set
to be legal. This process of divorce is recognized in S. 2 of Sharia (Muslim personal
law)42.
5.2.As it is admitted from the fact that on 10th of February 2018 Respondent No.1 Rizwan
Ahmed in presence of 2 witnesses Mohammed Yaseen and Ayaaz Ahmed declared that “I
41
Syedna Taher Saifuddin Saheb v. State of Bombay, 1962 Supp (2) SCR 496
42
Section 2 Sharia(Muslim personal Law) 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).
Page 32 of 36
give „Talaq, Talaq, Talaq , hence I divorce my first 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‟.” 43This was conveyed on mobile of Sanaya Begum.
5.3.It is submitted that the deed of divorce signed by the above duly witnesses was executed
on 10th February 2018 and was also sent to the Petitioner through the speed post with the
Mehr of Rs.51,000. Rs.41,000 as the mehr and 10,000 towards the waiting charges and
request was made to accept the same.44
5.4.It is further submitted that after the divorce from his first wife Respondent Rizwan
Ahmed on 1st of March 2018 has married Afreen Rehman. Therefore, it cannot be said
that the marriage of the Respondent with Afreen Rehman is invalid.
[B.] RIZWAN AHMED CANNOT BE PROSECUTED FOR AN OFFENCE OF

RAPE AND KINANPPING.
5.5. It most humbly submitted that it is the admitted position of the case that Afreen Rehman
has given her willful consent to marry with the Respondent and further she is also
claiming that Respondent Rizwan is her legally wedded husband. Therefore, from the fact
also the probability cannot be ruled out that during the alleged rape Afreen Rehman was a
contesting party.
5.6.It is further submitted that to attract the section of rape the most important thing to see
here is that the physical relation between the accused and the victim at that moment was
without the consent of the victim or not. This Hon‟ble Court in the case of Dilip Singh
Alias Dilip Kumar v. State of Bihar45 has held that “Will and consent offend interlace
and the act done against the will of a person can be said to be an act done without
consent, the Indian Penal Code categories these two expressions under separate heads in
order to be as comprehensive as possible. Further, it is not is to find a dividing line
between submissions and consent accept in the situation contemplated by clause 5th of s.
375 of IPC. Yet, Evidence has to be carefully scanned. The conclusion depends on the
facts of each case.
The penal code does not define „Consent‟ in positive terms, but „what cannot be regarded
as “consent” under the code is explained by Section 90 of Indian Penal Code. Consent
43
Factsheet || Para 4, 1st line
44
Factsheet|| Para 4, 5th line
45
Dilip Singh Alias Dilip Kumar v. State of Bihar, 2005 (1) SCC 88
Page 33 of 36
given firstly under fear of injury and secondly under a misconception of a fact is not
“consent” at all. That what is enjoined by the first part of Section 90. This two grounds
are specified in Section 90 are analogous to coercion and mistake of fact which are
familiar ground that can vitiate a transaction under the jurisprudence of our country as
well as other countries. The factors set out in the Section 90 are from the point of view of
the victim. The second part of Section 90 enacts the corresponding provisions from the
point of view of the accused. It envisages that the accused too has knowledge or has
result to believe that the consent was given by the victim in a consequence of fear or
injury or misconception of fact. Thus, the second part lays emphasis on the knowledge of
reasonable belief of the person who obtained the tainted consent. The requirement of
both the parts should be cumulatively satisfied. In the other words, the court has to see
whether the person giving the consent has given it under fear of injury or misconception
of fact and the court should also be satisfied that the person doing the act i.e. the alleged
offender, is conscious of the fact or should have reason to think that but for fear or
misconception, the consent would have been given. This is the scheme of Section 90 which
is couched in negative terminology.
Section 90 cannot, however, be construed as an exhaustive definition of consent for the
purpose of Indian Penal Code. The normal connotation and concept of “consent” is not
intended to the excluded. Various decisions of the High Court and of the Supreme Court
have not merely gone by the language of Section 90, but travelled a wider field, guided by
the etymology of the word “consent”.
The decision of the Madras High Court in N. Jaladu case, ILP46 is an authority for
proposition that a misrepresentation as regards the intention of the person seeking
consent i.e. the accused, could give rise to the misconception of fact. Applying that
principle to a case arising under Section 375 IPC, consent given pursuant to a false
representation that the accused intends to marry, could be regarded as consent given
under misconception fact. But a promise to marry without anything more will not give
rise to “misconception of fact” within the meaning of Section 90 of IPC. A representation
deliberately made by the accused with a view to elicit the accent of the victim without
having the intention to marry her, vitiate the consent. On the facts it is established that at
the very inception of the making of promise the accused did not really entertain the
intention of marrying her and the promise to marry hell out by him was a mere hoax, the
46
N. Jaladu case, ILP (1913) 36 Mad 453
Page 34 of 36
consent ostensibly given by the victim will be of no a well to the accused to exculpate him
from the Section 375 Clause Secondly IPC.”
5.7. Therefore, from the above mentioned cases it is clear that consent plays a major role in
case of rape. And as already argued above probability cannot be ruled out that Afreen was
a consenting party in rape. It is also crystal clear from the above case law that it is
necessary for court to scrutinize the evidence properly. Now coming to the present case
here it can very well be said that Petitioner out of the revenge is seeking a prosecution
against Respondent Rizwan even though the Respondent Rizwan is innocent and
followed every rules and rituals given under Muslim Personal Law. Therefore, throwing
an innocent under the bus only on the whines and wishes of the Petitioner would amount
to a grave in justice and therefore the contention of Petitioner seeking prosecution against
Respondent Rizwan is totally illegal in the eyes of law. Therefore, the Respondent
humbly request that the petition of the Petitioner should be dismissed with heavy cost.
_________________________________________________________________________________
Page 35 of 36
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. That the Present Petition be dismissed with cost.
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 Respondent.
Page 36 of 36

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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

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

3. Ministry of Law and Justice,

MOST RESPECTFULLY SUBMITTED,

Issues Raised……………………………………………………..……………………. ... 12

I.THE PRESENT PETITION IS NOT MAINTAINABLE UNDER ARTICLE 32. THE

[A.] The present petition is not maintainable under article 32………..………………………….15

IV. THE PROVISIONS OF THE MUSLIM PERSONAL LAWS SOUGHT TO BE

V. THE FIFTH MARRIAGE OF RIZWAN AHMED WITH AFREEN

1. A.P Andhra Pradesh

2. AIHC All India High Court Cases

3. AIR All India Reporter

7. CEDAW Convention on Elimination of All Forms of

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

23. & And

1. Ahmedabad Women Action Group v. Union of India (1997) 3 SCC 573

1. CONSTITUTION OF INDIA (1950)

6. PRINCIPLES OF HINDU LAW, 15TH EDITION

1. BLACK‟S LAW DICTIONARY

2. MUSLIM LAW IN MODERN INDIA

Petition _________No. of 2018

Article 32:- Remedies for enforcement of rights conferred by this Part

The Respondent humbly submits to the jurisdiction of the Hon‟ble Court.

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

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

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

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

WHETHER THE PRESENT PETITION IS MAINTAINABLE? WHETHER THE MUSLIM

WHETHER THE COURT OF LAW CAN INTERPRET RELIGIOUS SCRIPTURES OF

WHETHER THE IMPUGNED PRINCIPLES OF MUSLIM PERSONAL LAW, TRIPLE TALAQ

WHETHER THE PROVISIONS OF THE MUSLIM PERSONAL LAWS SOUGHT TO BE

WHETHER THE FIFTH MARRIAGE OF RIZWAN AHMED WITH AFREEN REHMAN IS

I. WHETHER THE PRESENT PETITION IS NOT MAINTAINABLE. THE MUSLIM

II. THE COURT OF LAW CANNOT INTERPRET RELIGIOUS SCRIPTURES OF ANY

III.THE IMPUGNED PRINCIPLES OF MUSLIM PERSONAL LAW, TRIPLE TALAQ IN

VIRES THE CONSTITUTION OF INDIA.

IV.THE PROVISIONS OF THE MUSLIM PERSONAL LAWS SOUGHT TO BE REVIEWED

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

I. THE PRESENT PETITION IS NOT MAINTAINABLE UNDER ARTICLE 32. THE

[A.] THE PRESENT PETITION IS NOT MAINTAINABLE UNDER ARTICLE 32

i. “Whether Muslim Personal Law which allows Polygamy is void as offending

[B.] THE MUSLIM PERSONAL LAWS CANNOT BE TESTED AS BEING VIOLATIVE