IIND AMITY NATIONAL MOOT COURT COMPETITION 2019 | MUMBAI

TEAM CODE: AN2/19/222

IIND AMITY NATIONAL MOOT COURT

COMPETITION, 2019 18TH - 20TH

OCTOBER,2019

BEFORE THE HON’BLE HIGH COURT OF

SARNATAKA

IN THE MATTERS OF:

SAIRA (PETITIONER)

V.

STATE OF SARNATAKA (RESPONDENT)

ON SUBMISSIONS TO THE HON’BLE HIGH COURT OF

SARNATAKA WRITTEN SUBMISSIONS ON BEHALF OF

PETITIONER

MEMORIALS FOR PETITIONER – SAIRA

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{Table of Contents}

TABLE OF CONTENTS

{TABLE OF CONTENTS}

INDEX OF AUTHORITIES .................................................................................................................... ……...5

STATEMENT OF JURISDICTION……………………………………………………………………………….9

SUMMARY OF FACTS .......................................................................................................................... …….10

ISSUES RAISED ...................................................................................................................................... ….13

SUMMARY OF ARGUMENTS ............................................................................................................... …14

ARGUMENTS ADVANCED ...................................................................................................................... ….16

 ISSUE:I: WHETHER THE APPEAL BROUGHT BEFORE THE

HON’BLE HIGH COURT OF SARNATAKA UNDER SEC 19(1) OF
FAMILY COURT ACT 1980 IS MAINTAINABLE OR NOT....................17

 ISSUE: II: WHETHER THE SAIRA’S CLAIM OF MAINTENANCE

FROM HUSSAIN AND VISHAL’S PARENT’S IS MAINTAINABLE OR
NOT?...................................................................................................................19

 ISSUE: III: WHETHER THE ARREST AND DETENTION BY NIA

UNDER NATIONAL SECURITY ACT 1980 IS MAINTAINABLE OR
NOT?...................................................................................................................25

PRAYER…………………………………………………………………………………………………………32

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{List of Abbreviations}

LIST OF ABBREVIATIONS

{LIST OF ABBREVIATIONS}

AIR……………………………………………………………………………...All India Reporter

All………………………………………………………………………………………..Allahabad

All LJ………………………………………………………………………Allahabad Law Journal

AP…………………………………………………………………………………..Andhra Pradesh

Art…………………………………………………………………………………………...Article

Bom………………………………………………………………………………………..Bombay

Cal………………………………………………………………………………………….Calcutta

CIT………………………………………………………………….Commissioner of Income Tax

CJI……………………………………………………………………………Chief Justice of India

Cr.LJ…………………………………………………………………………Criminal Law Journal

Cr.PC………………………………………………………………….Code of Criminal Procedure

Del…………………………………………………………………………………………….Delhi

FC…………………………………………………………………………………….Federal Court

FCR…………………………………………………………………………..Federal Court Reports

HC………………………………………………………………………………………High Court

J……………………………………………………………………………………………...Justice

Kar………………………………………………………………………………………...Karnataka

¶………………………………………………………………………………………….Paragraph

PC……………………………………………………………………………………Privy Council

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{List of Abbreviations}

Punj………………………………………………………………………………………….Punjab

Mad…………………………………………………………………………………………Madars

WB…………………………………………………………………………………….West Bengal

SC…………………………………………………………………………………..Supreme Court

SCC………………………………………………………………………….Supreme Court Cases

SCR………………………………………………………………………..Supreme Court Reports

Sec…………………………………………………………………………………………..Section

SLP………………………………………………………………………….Special Leave Petition

UOI………………………………………………………………………………….Union of India

U.P……………………………………………………………………………………Uttar Pradesh

U.S……………………………………………………………………………………United States

u/s……………………………………………………………………………………Under Section

v……………………………………………………………………………………………..Versus

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{Index of Authorities}

INDEX OF AUTHORITIES

{INDEX OF AUTHORITIES}

CASES

Foreign Cases

1. Adelaide Company of Jehovah’s v. The Commonwealth of Australia………………….27

2. Brandenburg v. Ohio 395 US 430(1969)………….…………………………………….25
3. Cox. v. Hakes ……………………………………………………………………………26
4. Elf Brandt v. Russell 384 US 17 (1966)…………………………………………………24
5. Lowell v. Griffin(1939) 303 US 444 …………...……………………………………….24

Indian Cases

1. Akila v. The Govt. of Tamilnadu AIR 1959 SC 234…………………………………….26

2. A.K Gopalan v. State of Madras, AIR 1950 SC 27……………………………………...29
3. Anand Patwardhan v. Union of India AIR 1997 Bom. 25 ………………………………26
4. Arunchal Nadar v. State of Madras AIR 1959 SC 300…………………………………..26
5. Arup Bhuyan v. State of Assam AIR 2011 SCC 32……………………………………..30
6. Ashok Kumar v. Delhi Administration & Ors. AIR 1982SC 1143 ……………………..29
7. Attorney General v. Sillem………………………………………………………………17
8. Bakula Bai v. Gangaram…………………………………………………………………20
9. Bandhua Mukti Morcha v. Union of India AIR 1984 SC 802 …………………………..29
10. Bhagwan Dutt v. Kamla Devi …………………………………………………………...18
11. Bhim Singh v. State of Jammu & Kashmir AIR 1986 494………………………………28

12. Bhut Nath v. State of W.B 1974 1 SCC 645……………………………………………..29

13. Bijoe Emmanuel v. State of Kerala (1984) JSCC 615…………………………………...28
14. Bramchari Sidheshwarsai v. State of West Bengal AIR 1995 SC2089………………….30
15. Chanmuniya v. Virendra Kumar Kushwaha……………………………………………..18

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16. Chintamani Rao v. State of M.P AIR 1951 SC 118……………………………………..25

17. Commissioner Hindu Religious Endowments Madras v. Shirur Matt AIR 1954 SC
282......................................................................................................................................28

18. Commissioner Hindu Religious Endowments v. Shirur Mutt 1954 SCR 1005. ………..26
19. Daryao v. State of U.P AIR 1961 SC 1447 ……………………………………………...17
20. Dayawati v. Indrajit……………………………………………………………………...16
21. Dwarka Prasad Agarwal v. BD Agarwal………………………………………………...17
22. Faizal Mohammad v. Mst. Umratur Rahim……………………………………………...19
23. G.C. College, Silchar v. Gauhati University……………………………………………..17
24. Haider Khan v. Mehrunnissa…………………………………………………………….19
25. Jadab Chandra v. Kausalya, ……………………………………………………………..19
26. Jagir Kaur v. Jasvant Singh………………………………………………………………16
27. Joginder Kumar v. State of U.P AIR 1994 SC 1349…………………………………….29
28. K Mohan v. Balakanta Laxaman………………………………………………………...16

29. K.S Puttaswamy v. Union of India 2017 (10) SCC 1…………………………………....25

30. KA Abdul Jaleel v. TA Shahida ………………………………………………………...16

31. Kesavananda Bharti v. State of Kerala AIR 1973 SC 1461……………………………..26

32. L. Chandra Kumar v. Union of India AIR 1997 SC 1125... …………………………….30
33. Louis De Raedt v. Union of India (1991) 3 SCC 554……………………………………25
34. M.A. Hameed v. Arif ……………………………………………………………………21

35. Maneka Gandhi v. of India AIR 1978 SC 597…………………..………………………26

36. Mithilesh Kumari v. Bindhawasani……………………………………………………...19

37. Mohammad Hanif Qureshi v. State of Bihar AIR 1958 SC 731………...........................29

38. Muhaidine v. Saniambu …………………………………………………………………21
39. Mukta v. Duttaa………………………………………………………………………….29
40. N.B Khare v. State of Punjab AIR 1960 SC 211………………………………………...25
41. Nanak Chandra v. Chandra Kishore Aggarwal ………………………………………….18

42. Narendra Kumar v. Union of India AIR 1960 SC 430…………………………………..25

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43. Noor Saba Khatoon v. Mohd. Quasim …………………………………………………..20

44. P.M.A Metropolitan v. Moran Marthoma AIR 1995 SC 2001…………………………..29
45. Papnasam Labour Union v. Madras Coats.Ltd., AIR 1995 SC 2000 …………………...25
46. Raman Kutty v. Avara…………………………………………………………………...17
47. Ramaswami Mudaliar v. Commr., H.R.E AIR 1999 Mad 393………………………….27
48. S.P Mittal v.Union of India AIR 1983 SC 1……………………………………………..26

49. S.R Bommai v.Union of India AIR 1994 SC 1918……………………………………...26

50. Secy. ONGC Ltd. v. V.U. Warrier……………………………………………………….17

51. Shafin Jahan v. Asokan K.M & Ors. AIR 2017 (366) SCC 5777 ………………………26
52. Sri Lakshmana Yatendrulu v. State of Andhra Pradesh AIR 1996 SC 1414……………26
53. Srinivas v. State of Madras AIR 1931 Mad. 70………………………………………….24

54. St. Xavier’s College v. State of Gujarat AIR 1974 SC 1389 ……………………………24
55. State Of Madars v. B.G. Row……………………………………………………………17
56. Sunil Batra v. Delhi Administration AIR 1980 SC 1579 ………………………………..30
57. T.C Basappa v. Nagappa AIR 1954 SC 440……………………………………………..29
58. The Secretary to Government Public & another v Nabila & ors. (2015) 12 SCC 127.…29
59. Ummu Sabeena v. state of Kerala & ors. (2011) 10 SCC 781 …………………………..30

60. Union of India v. Naveen Jindal AIR 2004 SC 1559……………………………………26

61. V.G Row v. State of Madras AIR 1951 Mad.147………………………………………..25
62. Y.Narayan v. Y.Kondaiah………………………………………………………………..19

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{Index of Authorities}

BOOKS & STATUTES

1. M.P. JAIN, INDIAN CONSTITUTIONAL LAW (7TH Ed. 2014)

2. THE MUSLIM WOMEN ACT, 1986
3. NATIONAL SECURITY ACT, 1984
4. MULLA, HINDU LAW (22ND ED. 2017)
5. MULLA, MOHAMMEDAN LAW (3RD ED. 2013)
6. PK DAS, RIGHTS OF DIVORCED WIFE AND WIDOWS(1 ST ED. 2013)
7. DR. T. MOHMOOD, INTRO. TO MUSLIM LAW(1ST ES. 2013)
8. FAMILY COURT ACT, 1984
9. HINDU MARRIAGE ACT, 1985
10. HINDU MAINTENANCE AND ADOPTION ACT, 1956
11. CODE OF CRIMINAL PROCEDURE, 1973

WEBSITES

1. www.lawyersclubindia.com
2. www.vakilno1.com
3. www.judis.nic.in
4. www.onelawstreet.com
5. www.indiankanoon.com
6. www.livelaw.com
7. www.amicuscreative.com

OTHER MATERIALS
1. FACT SHEET
2. LAW JOURNAL

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{Statements of Jurisdiction}

STATEMENT OF JURISDICTION

{STATEMENT OF JURISDICTION}

THE PETITIONER HAS APPROACHED BEFORE THE HON’BLE HIGH COURT OF

SARNATAKA UNDER SEC 19(1) OF FAMILY COURT ACT 1984.

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{Statement of Facts}

STATEMENT OF FACTS

{STATEMENTS OF FACTS}
1

JANUARY 2014:

Cindia is a developing country having states like Vindhya Pradesh. The laws of Cindia are pari
materi with the laws of Cindia. Meenakshi Singh a 17 year old Hindu girl, had a senior friend
Shaikh Sana in her college. Meenakshi being impressed with the religious practices and good
conduct of her friend started believing in teachings of Islam. Later she took admission in
Jorakhpur Islamic Study Center (JISC) and started taking religious lessons , where she met
Husain Mirza an active member of RPVP and both fell in love with each other.

OCTOBER 2014:

Suresh Singh filed a police complaint of her missing daughter Meenakshi . The Police while
tracing found that Meenakshi converted herself to Islam and was all along staying with Shaikh
Sana. Suresh filed a writ petition invoking Article 226 of Cindian Constitution in Vindhya
Pradesh High Court contending that JISC was involved in forced and illegal religious
conversions and was recruiting cadre for Islamic terrorist organization. The court dismissed the
petition as because Saira denied all the allegations before the court.

DECEMBER 2014:

Suresh filed another Writ petition claiming that Saira is about to be transported out of Cindia
after getting her married off to Mohd. Junaid. The High Court passed an interim order directing
Saira to be kept under surveillance where the police found that she has moved to undisclosed
location with Hussain Mirza. The court directed her to stay at women’s hostel in Nareilly. Later
Saira filed an interim application of her being lodged in hostel for no faultand has no plans to
travel abroad. After which the court in January 2015 allowed her to live with Sana till the writ
petition is finally disposed off.

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{Statement of Facts}

March 2015: Saira appeared before the court and admitted that she is married to Hussain Mirza
as per Muslim law and pleaded that she be allowed to preach Islam without hindrance from
police and any of her relative. Hussain Mirza had four criminal cases pending against him. The
court accepted her plea and disposed off the petition.

DECEMBER 2016: Hussain Mirza used to torture Saira as she was not able to conceive a child
and Vishal neighbor of Saira and Hussain had been witnessing these fights.

One day Husain married another woman, Fatima, without informing Saira. Seeing Fatima in the
house Saira got furious and knowing these facts that Saira could take extreme step Vishal offered
her a refuge in his house. On the same night Saira got pregnant with Hussain’s child and before
she thought of returning to matrimonial home, Hussain sent her triple Talaq on Whatsapp.
Observing Saira in such a plight, Vishal promised to take responsibility of her and her child and
suggested shifting to his native place Kudipi in Sarnataka. The next day itself they both settle in
Kudipi and married as per Hindu rites and ceremonies, however Saira along with her son
continued to preach Islam with the consent of Vishal.

AUGUST 2018: One day Vishal passed away and Saira, unable to bear this sad news went to
Coma. After recovering she immediately reached their home where she found that the house had
been occupied by Vishal’s brothers and Sameer had been admitted to Orphanage. Vishal’s
parents refused to acknowledge Saira as their daughter in law.

Saira filed two cases to sustain herself and her son:

Firstly, maintenance for herself from Vishal’s parents claiming herself to be legally wedded wife
as per Hindu religious rights.

Secondly, maintenance for Sameer and herself and seeking compensation for trapping her into
conversion, marriage and treating her in an undignified way against Hussain. Family Court
dismissed both the cases as not maintainable, while high court admitted both the appeals and
kept them for joint hearing.

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{Statement of Facts}

National investigation Agency unearthed a big racket of “Psychological Kidnapping” where

organized groups attempt to be recruit Hindu women as a terrorists by getting them converted
and marrying them of to Muslim men. Hussain Mirza was missing who had been an active
member of that organization. NIA had a suspicion that Saira is a trained terrorist and to know
more links of Hussain Mirza, it obtained a arrest warrant against Saira under National Security
Act 1980 and detained her for further investigation. A writ petition was filed by Saira
challenging her arrest and detention and also for quashing FIR against NIA in the High Court of
Sarnataka. The NIA termed her matrimonial dispute as pre-scripted by the organization JISC, the
court admitted the writ petition filed by Ms. Saira.

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{Issues Raised}

ISSUES RAISED

{ISSUES RAISED}

ISSUE 1: WHETHER THE APPEAL BROUGHT BEFORE THE HON’BLE HIGH

COURT OF SARNATAKA UNDER SEC 19(1) OF FAMILY COURT ACT 1980 IS
MAINTAINABLE OR NOT?

ISSUE 2: WHETHER THE SAIRA’S CLAIM OF MAINTENANCE FROM HUSSAIN

AND VISHAL’S PARENT’S IS MAINTAINABLE OR NOT?

ISSUE 3: WHETHER THE ARREST AND DETENTION BY NIA UNDER NATIONAL

SECURITY ACT 1980 IS MAINTAINABLE OR NOT?

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{Summary of Pleadings}

SUMMARY OF PLEADINGS

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{Summary of Pleadings}

SUMMARY OF PLEADINGS

{SUMMARY OF PLEADINGS}

ISSUE 1: WHETHER THE APPEAL BROUGHT BEFORE THE HON’BLE HIGH

COURT OF SARNATAKA UNDER SEC 19(1) OF FAMILY COURT ACT 1980 IS
MAINTAINABLE OR NOT?

It is humbly submitted that the appeal brought before the hon’ble HC of Sarnataka under Sec
19(1) of Family Court Act is maintainable. Maintainable under Family Court Act [A]. Petitioner
has locus standi under Art. 226 [B]

ISSUE 2: WHETHER THE SAIRA’S CLAIM OF MAINTENANCE FROM HUSSAIN

AND VISHAL’S PARENT’S IS MAINTAINABLE OR NOT?

It is humbly submitted that the Saira claim for maintenance brought before Hon’ble high court of
Sarnataka under sec 125 CrPC is Maintainable. Saira claim for maintenance form Hussain is
maintainable [A]. Maintenance for Sameer is valid under sec 125(1)(b) of CrPC[B]. Saira claim
for maintenance as widow daughter-in-law valid[C]

ISSUE 3: WHETHER THE ARREST AND DETENTION BY NIA UNDER NATIONAL

SECURITY ACT 1980 IS MAINTAINABLE OR NOT?

It is humbly submitted to the kind perusal of this jurisdiction that Arrest and Detention by NIA
violates the Freedom of Speech and Expression under Art.19 (1) (a) of the Constitution of
Cindia. Freedom of Speech and Expression is a Fundamental Right [A]. Right to Profess and
Practice religion is protected under Article 25 of Constitution of Cindia [B]. Detention by NIA
violates Article 22 of Constitution of Cindia [C]

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{Arguments Advanced}

ARGUMENTS ADVANCED

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{Arguments Advanced}

ARGUMENTS ADVANCED

{ARGUMENTS ADVANCED}

I. ISSUE 1: WHETHER THE APPEAL BROUGHT BEFORE THE HON’BLE

HIGH COURT OF SARNATAKA UNDER SEC 19(1) OF FAMILY COURT ACT
1980 IS MAINTAINABLE OR NOT?
It is humbly submitted that the appeal brought before the hon’ble HC of Sarnataka under
Sec 19(1) of Family Court Act is maintainable. Maintainable under Family Court Act
[A]. Petitioner has locus standi under Art. 226 [B]

[A] APPEAL IS MAINTAINABLE

It is humbly submitted that the Appeal brought before the Hon’ble High Court (hereinafter
referred as HC) of Sarnataka an appeal shall lie from every judgment, order not being an
interlocutory order, of a family court to the high court both on facts and on law 1. The Family
Court Act was enacted to provide for the establishment of a family courts with a view to promote
conciliation, and secure speedy settlement of, disputes relating to marriage and family affairs and
for matters collected theirwith2. The proceedings under Sec 125 are in the nature of civil
proceedings, the remedy is a summary and the person seeking remedy is ordinarily a helpless
person, so the words in Sec 126(1) should be liberally construed without doing any violence to
the language3. Family courts designedly given by parliament so as to enable a discarded wife or
helpless child to get the much needed and urgent relief4. An appeal is thus a removal of a cause
from an inferior court to superior court for the purpose of testing the soundness of decision of
inferior court5. An appeal is a remedy provided by law for getting the decree or order of lower

1
Sec.19(1) of family court act 1984
2
KA Abdul Jaleel v. TA Shahida (2003) 4 SCC 166
3
Jagir Kaur v. Jasvant Singh AIR 1963 SC 1521
4
K Mohan v. Balakanta Laxaman 1983 CrILJ 1316, 1318 (Mad)
5
Dayawati v. Indrajit AIR 1966 SC 1423

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{Arguments Advanced}

court set aside6. An appeal has been set to be “the right of interring a superior court, and
invoking its aid and interposition to redress the error of the court below”7

[B] PETITONER HAS LOCUS STANDI UNDER ARTICLE 226

It is humbly submitted that every HC shall have power, throughout territories in relation to which
it exercise jurisdiction, to issue to any person or authority including in appropriate cases, any
govt, within those territories directions, orders or writs including writs in the nature of habeous
corpus, mandamus, prohibition, quo-warrento, certiorari, or any of them, for the enforcement of
any of the rights conferred by Fundamental Rights and for any other purpose8. Article 226 is
wider in scope than Article 32, Article 32 only deals with enforcement of fundamental rights
while Article 226 deals not only fundamental right but also any other legal right. The jurisdiction
under Article 226 can be exercised by HC to reach injustice wherever it is found 9. A very
significant aspect of Indian Constitution is the jurisdiction it confers on the HC to issue writs; the
writs have been among the great safeguards provided for upholding the rights and liberties of the
people10. Right without remedy does not have much substance; the fundamental rights
guaranteed by the constitution would have been worth nothing had the constitution not provided
an effective mechanism for their enforcement11. A person whose fundamental right has been
infringed has Locus Standi to move the HC under Article 226 for the enforcement of his right 12.
The Fundamental rights are intended not only to protect individual rights but they are based on
high public policy, liberty of individual and protection of fundamental rights are the very essence
of the democratic way of life adopted by the constitution, and it is the duty of the court to uphold
those rights13

6
Attorney General v. Sillem
7
Raman Kutty v. Avara (1994) 2 SCC 642
8
Article 226 of Constitution of India
9
Secy.ONGC Ltd. v. V.U. Warrier, (2005) 5 SCC 245
10
Dwarka Prasad Agarwal v. BD Agarwal (2003) 6 SCC 230
11
State Of Madars v. B.G. Row AIR 1952 SC 196
12
G.C. College, Silchar v. Gauhati University AIR 1973 SC 761
13
Daryao v. State Of UP AIR 1961 SC 1457 at 1461: (1962) 1 SCR 574

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{Arguments Advanced}

ISSUE 2: WHETHER THE SAIRA’S CLAIM OF MAINTENANCE FROM HUSSAIN

AND VISHAL’S PARENT’S IS MAINTAINABLE OR NOT?

It is humbly submitted that the Saira claim for maintenance brought before Hon’ble high court of
Sarnataka under sec 125 CrPC is Maintainable. Saira claim for maintenance and compensation
form Hussain is maintainable[A]. Maintenance for Sameer is valid under sec 125(1)(b) of
CrPC[B]. Saira claim for maintenance as widow daughter-in-law valid[C]

[A] SAIRA CLAIM FOR MAINTENANCE AND COMPENSATION FROM HUSSAIN

IS MAINTAINABLE

1.1 Under Section 125(1)(a) of CrPC

It is humbly submitted that Maintenance and compensation from Hussain is maintainable under
sec 125 CrPC (1)(a). Wife is entitled to claim maintenance from her husband if he neglected or
refused to maintain her wife 14. Wife Includes a women who has been divorced by or has obtain a
divorce from, her husband and has not remarried 15. The term Wife includes even those cases
where a man and woman have been living together as husband and wife for a reasonably long
period of time, strict proof of marriage should not be a pre condition for maintenance 16. A wife is
entitled for maintenance beyond Iddat period also under section 3(1)(a) of women protection act
1986,as the word “within iddat period” used in the Act means that husband has to pay for all
future expenses and a fair and reasonable claim within the period of iddat and not that his
liability is for the iddat period only17.The provision contained in this are applicable to all person
belonging to all religions and have no relationship with the personal law of the parties 18. Hussain
Mirza used to torture her as she was not able to conceive a child and she was suffering from
mental and physical anguish 19. A husband who makes it difficult for the wife to live with him
and who fails to maintain her when she lives elsewhere, “neglects refuses” to, maintain the

14
Nanak Chandra v. Chandra kishore Aggarwal 1969 3 SCC 802
15
Sec.125CrPC 1973
16
Chanmuniya v. Virendra Kumar Kushwaha, JT 2010 (11) SC 132
17
Sec 3(1)(a) of women protection of rights and divorce act 1986
18
Bhagwan Dutt v. Kamla Devi (1975) 2 SCC 386
19
Refer Fact Sheet Para(8) Line (3)

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{Arguments Advanced}

wife20. A Wife who can show that her husband has another wife or mistress or that she was
physically tortured her claim for such as when the husband keeps a concubine, or is guilty of
cruelty to his wife21. Hussain Mirza used to torture Saira as she was not able to conceive a child
and he without even informing Saira maintenance would not be denied on the ground of living
separately22. By providing a simple, speedy but limited relief, the provision seek to ensure that
the neglected wife, children and parents are not left beggared and destituted on the scrap heap of
society and thereby driving to a life of vagrancy, immorality and crime for their subsistence 23.
Hussain psychologically brainwash the mind of Saira and trapped her into conversion and
recruit her into Muslim women24.

(1.2) Maintenance Under Muslim Law

In the words of Baillie “Maintenance signifies all those things which are necessary for support
life and includes suitable food, raiment and lodging” 25. In Muslim law the obligation of the
husband to maintain his wife is absolute, irrespective of the fact that the wife bears a sound
financial position and he is not in position to maintain her 26. “Let the women live in the some
style as you live, according to your means: annoy them not, so as to restrict them if they carry
life in their wombs, then spend your substance on them until they deliver their burden27.
Maintenance is the name given to the weekly or monthly payments which may be ordered on a
decree of divorce, or nullity to be made for the maintenance and support of the wife 28. Muslim
Husband’s liability to provide for reasonable and fair provisions for maintenance to his divorced
wife originates from the act and simultaneously Quran provides a duty to the husband to provide
reasonable and fair provision and maintenance to his divorced wife 29. Men are protectors and

20
Jadab Chandra v. Kausalya, Cri LJ 856
21
Tyabji, 4th Ed. 263
22
Mithilesh Kumari v. Bindhawasani 1990 Cri LJ 830
23
Y.Narayan v. Y.Kondaiah, 1976 Cri LJ 1240, 1241 (AP)
24
Refer to fact sheet 14
25
Baillie, I, 441
26
AIR 1949 Pesh 7
27
Quran-Sura 65: Aayat 6and 7
28
Halsbury’s Law of England 3rd Ed Vol 12 p.290
29
Faizal Mohammad v. Mst. Umratur Rahim
Haider Khan v. Mehrunnissa, 1993 Cr LJ 236

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{Arguments Advanced}

maintainers of women30. A divorced woman shall be entitled to, a reasonable and fair provision
and maintenance to be made and paid to her within the iddat period by her former husband 31. A
wife does not lose her right to maintenance, if she refuses access to him on some lawful
grounds,married to another woman Fatima and due to this she was silently suffering from mental
and physical anguish, Saira got furious and decided to leave Hussain Mirza and end her life 32. A
wife is entitled to maintenance under sec 125 CrPC if the marriage is void, if factum of marriage
i:e proof of required ceremonies and rites of marriage is established or presumption on account
of prolonged cohabitation is available 33.

[B] MAINTENANCE FOR SAMEER IS VALID UNDER SEC 125(1)(b) OF CrPC

It is humbly submitted that maintenance for sameer is valid under sec 125(1)(b) of CrPC. If any
person having sufficient means neglects of refuses to maintain his legitimate or illegitimate
minor child who is unable to maintain itself than the court may, upon proof of such neglects or
refusal, the court may order such a person to make a monthly allowance of a child at such
monthly rate as the courts thinks fit and to pay the same to such person as the court may from
time to time direct34. A child born out of void marriage between a woman and a man who
already has a wife is to be treated as a legitimate child who’s entitled to maintenance under sec
125 CrPC.35

A Muslim father’s obligation like that of a hindu father, to maintain his minor children is
absolute and is not at all affected by sec 3(1)(b) Muslim Women(Protection of Rights On
Divorce) Act,198636. A Muslim woman can clain, on behalf of her child or children for

30
Quran Sura 4: Aayat 34
31
Sec 3(1)(a) of Muslim Women Act, 1986
32
Refer to Fact Sheet Para 9
33
Mukta v. Dutta (1924) 36 Bom LR 186
34
Sec 125(1)(b) CrPC
35
Bakula Bai v. Gangaram(1988) 1 SCC 537
36
Noor Saba Khatoon v. Mohd. Quasim (1997) 6 SCC 233

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maintenance under sec 125 CrPC and the provisions of Woman Protection Act of 1986 do not
take away the rights of divorced woman from claiming on behalf of her children as a guardian37.

A divorced muslim woman is entitled to a reasonable and fair provision and maintenance for
children born to her for a period of two years from the respective dates of birth of such children,
it does not matter if the children where born before or after the divorce, the former husband is
liable to pay maintenance38. The primary duty of maintaining sons before puberty and unmarried
daughters lie on father even though they are in the custody of mother 39. The right under Muslim
Woman Act,1986 to claim maintenance for children his distinct and independent of the right to
maintenance under Sec 125 CrPC to minor children unable to maintain themselves 40. Sameer
was the legitimate child of Hussain Mirza therefore Saira can claim maintenance on behalf of her
child from Hussain Mirza41

[C]MAINTENANACE AS WIDOWED DAUGHTER-IN-LAW

(1.1)Maintenance to Saira under Protection of Women from Domestic Violence Act 2005

It is humbly submitted that maintenance to Saira as widowed daughter-in-law is protected under

Protection of Women from Domestic Violence Act 2005. Any act, omission or commission or
conduct of the respondent shall constitute domestic violence in case it-

a) harms or injures or endangers the health safety life limb or well being, whether mental or
physical, of the aggrieved person or tends to do and includes causing physical abuse ,
sexual abuse, verbal, emotional abuse and economic abuse 42.
b) “physical abuse” means any act or conduct which is of such a nature as to cause bodily
pain, harm, or danger to life, limb, or health or impair the health or development of the
aggrieved person and includes assault, criminal intimidation and criminal force;

The word economic abuse” includes—

37
M.A. Hameed v. Arif Jan, 1990 CrLJ 96 (AP)
38
Sec 3 of Muslim Women Act, 1986
39
Muhaidine v. Saniambu AIR 1941 Mad 582
40
Noor Saba Khatoon v. Mohd. Quasim (1997) 6 SCC 233
41
Refer Fact Sheet Para 9 Line 4
42
Sec 3 of Domestic Violence Act, 2005

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(a) deprivation of all or any economic or financial resources to which the aggrieved person is
entitled under any law or custom whether payable under an order of a court or otherwise or
which the aggrieved person requires out of necessity including, but not limited to, household
necessities for the aggrieved person and her children, if any, stridhan, property, jointly or
separately owned by the aggrieved person, payment of rental related to the shared household and
maintenance;
(b) disposal of household effects, any alienation of assets whether movable or immovable,
valuables, shares, securities, bonds and the like or other property in which the aggrieved person
has an interest or is entitled to use by virtue of the domestic relationship or which may be
reasonably required by the aggrieved person or her children or her stridhan or any other property
jointly or separately held by the aggrieved person; and
(c) prohibition or restriction to continued access to resources or facilities which the aggrieved
person is entitled to use or enjoy by virtue of the domestic relationship including access to the
shared household. Explanation II.—For the purpose of determining whether any act, omission,
commission or conduct of the respondent constitutes “domestic violence” under this section, the
overall facts and circumstances of the case shall be taken into consideration.

(1.2)Right to reside in shared household

Every woman in a domestic relationship shall have the right to reside in the shared household,
whether or not she has any right, title or beneficial interest in the same 43. The word ‘shared
household’ means a household where the person aggrieved lives or at any stage has lived in a
domestic relationship either singly or along with the respondent and includes such a household
whether owned or tenanted by either of them in respect of which either the aggrieved person or
the respondent of both jointly or singly have any right title interest or equity and includes such a
household which may belong to the joint family of which the respondent is a member,
irrespective of whether the respondent or aggrieved person has any right, title or interest in
shared household44. After the recovery from hospital Saira found that her house had been

43
Sec 17 of Domestic Violence Act, 2005
44
Sec 2(s) of Domestic Violence Act, 2005

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occupied by Vishal’s brother and her child Sameer had been admitted to an orphanage and
Vishal’s parents also refused to acknowledge her as their daughter-in-law45

45
Refer to Fact sheet Para 12 line 1

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ISSUE 3 WHETHER THE ARREST AND DETENTION BY NIA VIOLATES THE

FREEDOM OF SPEECH AND EXPRESSION AND FREEDOM OF RELIGION UNDER
ARTICLE 19 AND 25 OF CONSTITUTION OF CINDIA, 1950?

It is humbly submitted to the kind perusal of this jurisdiction that Arrest and Detention by NIA
violates the Freedom of Speech and Expression under Art.19 (1) (a) of the Constitution of
Cindia. Freedom of Speech and Expression is a Fundamental Right [A]. Right to Profess and
Practice religion is protected under Article 25 of Constitution of Cindia [B]. Detention by NIA
violates Article 22 of Constitution of Cindia [C].

[A]VIOLATION OF FUNDAMENTAL RIGHT

(1.1)Violation of Freedom of Speech and Expression

It is humbly submitted that detention by NIA violates freedom of speech and expression under
Art.19 of the Constitution of Cindia. Everyone has the right to freedom of thought, conscience
and religion and this includes freedom to change his religion or belief, and freedom to manifest
his religion or belief in teaching practicing worship and observance 46. Freedom of speech lay at
the foundation of all democratic organizations and it includes not only to propagates ones views
only but also to propagate the views of others people 47.Freedom of speech and expression mean
the right to express one’s own convictions and opinions freely by words of mouth, writing,
printing, or any other mode48.Right to form association implies also the freedom to form or not to
form, to join or not to join, an association or union 49.Those whose join an organisation but do not
share its unlawful purposes and who do share in its unlawful activities surely pose no threat, a
law which applies to membership without the specific intent to further the illegal aims of the
organisations infringes unnecessarily on protected freedoms 50.Right to freedom guaranteed right
to carry profession or believe in ideology of any religion 51. Meenakshi was impressed with the
religious practices and good conduct of her friends and started believing in the ideology of Islam

46
Art. 19 of Universal Declaration of Human Rights.
47
Srinivas v. State of Madras AIR 1931 Mad. 70
48
Lowell v. Griffin (1939) 303 US 444
49
Art. 19(4) of constitution of Cindia 1950
50
Elf Brandt v. Russell 384 US 17(1966)
51
St. Xavier’s College v. State of Gujarat AIR 1974 SC 1389

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which is protected under Art. 19 of constitution of Cindia and therefore state cannot infringe her
fundamental rights on mere suspicion52.

(1.2)Restriction does not satisfy the ‘Clear and Present Danger’ test

A Restriction would be reasonable only if the curtailment of liberty is justified by the clear and
present danger test viz., that the utterance, if allowed would really imperil public safety53.The
restrictions on the rights under article 19(1)(a) can only be imposed by law and not by executive
or departmental instructions54. The term reasonable restrictions connotes that the limitation
imposed on a person in the enjoyment of right should not be arbitrary or of an excessive nature 55.
Legislation which arbitrarily or excessively invades the rights cannot be said to contain the
quality of reasonableness and it must to maintain a proper balance between the protection of
speech and reasonable restrictions 56. A restriction imposed on fundamental right must not be
arbitrary, unbridled and also not unreasonable discriminatory57. The court must determine the
reasonableness of restriction by objective standard and not by subjective one, the question is not
if the court feels the restriction to be reasonable but where a normal reasonable man Would
regard the restrictions to be reasonable 58.Any Individuals have is the central theme of civil
liberties and individual autonomy in terms of choice dress religion is our fundamental right 59.The
right to form association also guaranteed right to continue with association as such 60. A
restriction to be reasonable must have a reasonable nexus with the object which the legislature

52
Refer to 1Fact sheet
53
Brandenburg v. Ohio 1969
54
Chintamani Rao v. State of M.P AIR 1951 SC 118
55
N.B Khare v. State of Punjab AIR 1960 SC 211
56
Narendra Kumar v. Union of India AIR 1960 SC 430
57
Papnasam Labour Union v. Madras Coats.Ltd., AIR 1995 SC 2000
58
Louis De Raedt v. Union of India (1991) 3 SCC 554
59
K.S Puttaswamy v. Union of India AIR 2017
60
V.G Row v. State of Madras AIR 1951 Mad.147

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seeks to achieve and must not be in excess of that object 61. Freedom of speech and expression is
the bulwark of the democratic government 62.Democracy is based on making a choice, free and
general discussion of public matters is absolutely essential63. Everyone has a fundamental right
to form his opinion on any issue of general concern by legitimate means 64.

[B]DETENTION BY NIA VIOLATES THE RIGHT TO PROFESS RELIGION

(2.1)Religion is a matter of Individual Faith

It is humbly submitted that detention by NIA violates the freedom of religion under Art.25 of the
Constitution of Cindia. Religion is the belief which binds spiritual nature of men to super natural
being and it includes worship, belief, faith devotion and extends to rituals65.Preamble of our
constitution ensures liberty of thoughts, expressions, beliefs, faiths and worships which are basic
features of Indian constitution66. Meenakshi was impressed with the religious practices and
started believing in the ideology and teachings of Islam which is matter of individual faith and
she is not deprived of her right to preach or practice Islam 67Religion is a matter of faith with a
system of beliefs or doctrines which are regarded by those who profess that religion as conducive
to their spiritual well-being68.The autonomy of individual is the ability to take decisions which
include freedom of self- determination69.Secularism is the basic feature of the Indian constitution
and it is a matter of individual faith and cannot be mixed with secular activities70. The freedom
of religion guarantee under our constitution not only to protects the freedom of religious opinion
but it also protects acts done in pursuance of a religion 71. Matter of belief and faith and of ideas,

61
Arunchal Nadar v. State of Madras AIR 1959 SC 300
62
Union of India v. Naveen Jindal AIR 2004 SC 1559
63
Maneka Gandhi v. Union of India AIR 1978 SC 597
64
Anand Patwardhan v. Union of India AIR 1997 Bom. 25
65
Akila v. The Govt. of Tamilnadu AIR 1959 SC 234
66
Kesavananda Bharti v. State of Kerala AIR 1973 SC 1461
67
1 Fact sheet
68
S.P Mittal v.Union of India AIR 1983 SC 1.
69
K.S Puttaswamy v. Union of India 2017 (10) SCC 1.
70
S.R Bommai v.Union of India AIR 1994 SC 1918.
71
Commissioner Hindu Religious Endowments v. Shirur Mutt 1954 SCR 1005.

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and ideologies, of love and partnership are the core of the individual dignity 72.A religious
undoubtedly has its basis in the system of beliefs or doctrines which are regarded by those who
profess that religion as conducive to their spiritual well-being73.Freedom of religion not only to
entertain his religious beliefs but also to exhibit his belief in such outwardly act as he thinks
proper and to propagate or to disseminates his ideas for the edification of others 74. Every person
has right not only to entertain his religious beliefs but also exhibits his beliefs and ideas by such
acts which are sanctioned by their religion75.

2.2 Freedom To Religious Denomination

Every religious denomination or section has a right to establish and maintain institutions for
religious and charitable purposes, and to manage its own affairs in matters of religion 76.In
Webster’s dictionary, the word ‘Denomination’ has been defined as a “collection of individuals
,classed together under the same name generally a religious sate of body having a common faith
and organization and designated by a distinctive value”. The term religious denomination means
a religious sect having a common faith and organisation and designated by a distinctive name 77.
Anything that is destructive of individual freedom is anachronistic to our constitutional ethos 78.
As Saira was impressed with the ideology of Islam she took admission in Jorakhpur Islamic
study centre(JISC) and started taking religious lessons which is protected under this right to
manage affairs in matters of its own religion79.A religious denomination or organization enjoys
complete autonomy in the matter of deciding as to what rites and ceremonies are essential
according to the tenets of the religion they hold and no outside authority has any jurisdiction to

72
Shafin Jahan v. Asokan K.M & Ors. AIR 2017 (366) SCC 5777
73
Adelaide Company of Jehovah’s v. The Commonwealth of Australia [1943] HCA 12.
74
Sri Lakshmana Yatendrulu v. State of Andhra Pradesh AIR 1996 SC 1414.
75
Bijoe Emmanuel v. State of Kerala (1984) JSCC 615.
76
Art. 25 of Constitution of Cindia 1950
77
Ramaswami Mudaliar v. Commr., H.R.E AIR 1999 Mad 393
78
S.P Mittal v. Union of India AIR 1983 SC 1
79
2 line ‘2’fact sheet

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interfere with their decision in such matter80.Secularism was not a new idea but a formal
reiteration of what theConstitution always respected and accepted: the equality of all faiths 81.
Religious right is the right of a person believing in particular faith to practice it, preach it and
profess it 82.Mere membership of a banned organisation will not make a person a criminal unless
she resorts or create public disorder83.Every religious denomination or organizations
enjoycomplete freedom in the matter to manage its own affairs in matter of religion 84. The right
to form organization is the very life blood ofdemocracy without such a right no religious
domination can manage its own affairs in matters of religion85.

[C]DETENTION BY NIA VIOLATES ARTICLE 22(5) OF CONSTITUTION OF INDIA

(3.1)detention by NIA is illegal and against the liberty

A blanket order of detention without specifying the period of detention, is illegal and
unsustainable. Personal liberty is one of the most cherished freedoms, perhaps more important
freedoms guaranteed under constitution86. Arrest can cause incalculable harm to a person’s
reputation and self-esteem87. Arrest should not be made merely on suspicion but only after a
reasonable satisfaction reached after investigation as to the genuineness and bonafides and a
reasonable beliefs as to the person’s complicity and even as to the need to effect arrest 88.Mere
suspicion that person involved in terrorist activities and detained her with malafide was a gross
violation of fundamental rights under art.21 and 22(2) of constitution 89.Saira was being detained
an arrested for further investigation by NIA on mere suspicion which is against the individual

80
Commissioner Hindu Religious Endowments Madras v. Shirur Matt AIR 1954 SC 282
81
Sri Lakshmana Yatendrulu v. State of Andhra Pradesh AIR 1996 SC 1414.
82
P.M.A Metropolitan v. Moran Marthoma AIR 1995 SC 2001.
83
Arup Bhuyan v. State of Assam AIR 2011 SCC 32.
84
Mohammad Hanif Qureshi v. State of Bihar AIR 1958 SC 731
85
Bramchari Sidheshwarsai v. State of West Bengal AIR 1995 SC2089.
86
Bhut Nath v. State of W.B 1974 1 SCC 645
87
M.P Jain, Constitution of India
88
Joginder Kumar v. State of U.P AIR 1994 SC 1349
89
Bhim Singh v. State of Jammu & Kashmir AIR 1986 494

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dignity of women90.In a democracy governed by rule of law, the drastic power to detain a person
without a trial for security of state and maintenance of public order must be strictly construed 91.
Where individual liberty comes into conflict with an interest of the security of the state then the
liberty of individual must give way to the largest interest of the nation 92. It is the inherent power
of the court to make such orders as may be necessary to give effect to any order under this code,
or to prevent abuse of the process of the court or to secure the ends of the justice 93.A writ of
habeas corpus has been incorporated in our constitutional law where judges function under a
written constitution to protect individual liberty94.If there was any criminality in any sphere it
was for the law enforcement agency to book the detenu under law but the obligation of the court
is to exercise the celebrated writ that breathes life into our constitutional guarantee of freedom 95.

(3.2)High court is the protector and guardian of fundamental rights

Article 226 is couched in comprehensive phraseology and it confers a wide power on the High
Courts to remedy injustice wherever it is found 96.Liberty of individual and the protection of
fundamental rights are the very essence of democratic way of life adopted by Constitution and it
is the privilege and duty of court to uphold his rights97.It is the duty of court to protect every
citizens from deprivation of his right which is arbitrary or which is against the dignity of
citizens98.The writ of habeas corpus has been regarded as one of the most important safeguards
of the liberty of the subject 99.Saira was being lodged in the hostel for no fault of her, she also
testified that she also does not hold a passport and has no plan whatsoever to travel abroad,
police detained and humiliate her only on the ground of suspicion that she married with Hussain

90
14 fact sheet
91
Ashok Kumar v. Delhi Administration & Ors. AIR 1982SC 1143
92
The Secretary to GovernmentPublic & another v Nabila & ors. (2015) 12 SCC 127
93
Sec. 482 of CrPC 1973
94
Ummu Sabeena v. State of Kerala (2011) 10 SCC 781
95
Shafin Jahan v. Ashokan K.M. & ors. AIR 2017 SC 5777
96
T.C Basappa v. Nagappa AIR 1954 SC 440
97
Daryao v. State of U.P AIR 1961 SC 1447
98
Bandhua Mukti Morcha v. Union of India AIR 1984 SC 802
99
Cox. v.Hakes 1890 15 AC 506

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and that she involved in terror activities which is against her liberty100. Every person who is
detained unlawfully has a fundamental right to file a writ of habeas corpus to get quick and
immediate remedy101.The writ of habeas corpus will lie if the power of detention of authority
was exercised malafide and is made in collateral or ulterior purposes102.It is the primary duty of
the state to see that said right is not sullied in any manner whatsoever and its sanctity is not
affected by any kind of subterfuge 103.Power of judiciary over legislative action vested in the
High Courts under art.226 of the constitution and it is the Basic feature of Indian constitution104.
The autonomy of individual is the ability to make decisions on vitals matter of concern to life,
every person has a freedom to believe in what is right and freedom of self- determination105.

100
2 fact shhet
101
Sunil Batra v. Delhi Administration AIR 1980 SC 1579
102
A.K Gopalan v. State of Madras, AIR 1950 SC 27
103
Ummu Sabeena v. state of Kerala & ors. (2011) 10 SCC 781
104
L. Chandra Kumar v. Union of India AIR 1997 SC 1125
105
K.S Puttaswamy v. union of india 2017 (10) SCC 1

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{Prayer}

{PRAYER}
{PRAYER}

Wherefore it is prayed, in light of issues raised, arguments advanced, and

authorities cited, that this Hon’ble Court may be pleased to:

1. Declare that Appeal filed by the Appellant is Maintainable under

Section 125 of CrPC, 1973
2. Declare that the Saira claim for maintenance from both the parties is
valid.
3. Declare that the detention by NIA is infringement of fundamental
rights under Article 19 and 25 of Constitution Of India.

And Pass any other Order, Direction or Relief that it may deem fit in the
Best Interests Justice, Fairness, Equity and Good Conscience.

For this Act of Kindness, the Respondents Shall Duty Bound Forever Pray.

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