35TH BAR COUNCIL OF INDIA (TRUST) ALL INDIA INTER-UNIVERSITY MOOT

COURT COMPETITION, 2019

Team Code: TC 30

IN THE HON’BLE SUPREME COURT OF PINDIANA

AT PINDIANA

WRIT PETITION (C) NO._____OF 201_

ASMA … PETITIONER

VERSUS

UNION OF PINDIANA … RESPONDENTS

WITH

SPECIAL LEAVE PETITION (C) NO.______ OF 2019

MUKHTAR … PETITIONER

VERSUS

UNION OF PINDIANA … RESPONDENTS

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BEFORE SUBMISSION TO JUSTICES OF CONSTITUTION BENCH

OF THE HON’BLE SUPREME COURT OF PINDIANA

2019
 TABLE OF CONTENTS

TABLE OF CONTENTS ---------------------------------------------------------------------------02

LIST OF ABBREVIATIONS ----------------------------------------------------------------03

INDEX OF AUTHORITIES ---------------------------------------------------------------------05

STATEMENT OF JURISDICTION ---------------------------------------------------10

STATEMENT OF FACTS ------------------------------------------------------------------11

ISSUES RAISED ---------------------------------------------------------------------------14

SUMMARY OF ARGUMENTS -------------------------------------------------------15

ARGUMENTS ADVANCED -------------------------------------------------------------------17

PRAYER ----------------------------------------------------------------------------------------32

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 TABLE OF ABBREVIATIONS

& And

¶ Paragraph

AIR All India Reporter

Anr. Another

Art. Article

Cr. Criminal

Edn. Edition

Hon’ble Honourable

i.e. That is

SCC Supreme Court Cases

v. Versus

Vol. Volume

www World Wide Web

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 INDEX OF AUTHORITIES

A. Table of Cases

S. No. Name of the Cases and Case Citation Page No.

B. Treatises, Books, Reports And Digests

C. Journals Referred

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 1 All India Reporter

2 Supreme Court Cases

3 Indian Law Reporter

D. Database Referred

1 www.judis.nic.in

2 www.lexisnexis.com

3 www.manupatrafast.com

4 www.scconline.com

E. Legal Dictionary

1 Aiyer P.R., Advanced Law Lexicon, (3rd ed., 2005)

2 Garner B.A., Black’s Law Dictionary, (9th ed., 2009)

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 3 Greenberg Daniel, Stroud’s Judicial Dictionary of Words and
Phrases, (4th ed.), Sweet and Maxwell, Vol. 4

4 Oxford Advanced Learners Dictionary, (7th ed., 2008)

F. Statutes Referred

1.

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 STATEMENT OF JURISDICTION

WP(C) NO. _______ OF 201_

The Petitioner has approached this Hon’ble Court invoking Article 32 of the Constitution of
Pindiana.

Article 32 of the Constitution of Pindiana reads as follows:

“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.”

SLP(C) NO._______ OF 2019

The Petitioner has approached this Hon’ble Court invoking Article 136 of the Constitution of
Pindiana.

Article 136 of the Constitution of Pindiana reads as follows:

“136. Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any cause
or matter passed or made by any court or tribunal in the territory of India

(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order passed
or made by any court or tribunal constituted by or under any law relating to the Armed Forces.”

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 STATEMENT OF FACTS

1. Mukhtar and Asma are Sunni and Shia Muslim respectively by religion and both are
resident of State of Chind, Pindiana. Asma was very ambitious girl who completed her
education from a very prestigious college of London. She is very inclined towards the
teachings of Quran and follows the traditions firmly hence she is a religious Muslim
female whereas Mukhtar is a man who is influenced with the modern culture of the
society and influenced by the western culture and has a habit of occasional drinking.
2. They happened to work together in a multinational company where they fell in love and
with mutual consent got married under Shariat Law. Asma was performing well in her
career and could foresee a high position in the company. Therefore she decided not to
have kids for few years of marriage. Mukhtar being an adamant person started forcing
Asma to have a baby.
3. Mukhtar picked up frequent quarrels with his wife and was habituated to drinking
regularly. The disputes between the two kept escalating as Mukhtar resorted to forcible
sex with Asma besides beating her frequently.
4. Despite such regular assaults Asma tried to reconcile the matter and reported the incident
to her In-laws and parents. On the persuasion of parents and In-laws Mukhtar agreed to
stop assaulting her.
5. After few months of good behavior Mukhtar resumed forcing Asma for having a kid.
Later in 2016 Asma got pregnant and Mukhtar was very happy on hearing the news but
Aasma didn’t want to have the child as she was at the peak of her career. She could not
afford to apply for leave at this juncture and thereby forgo her promotion to a higher post
in the organization. Therefore she decided to go for an abortion.
6. After knowing about her decision, Mukhtar and Asma’s in-laws along with her parents
convinced her to leave the job and to have the child. But unfortunately due to their
negligence, Asma suffered a miscarriage and Mukhtar blamed her for the miscarriage as
he thought that Asma herself was liable and deliberately created the situation that resulted
in miscarriage. He continued taunting and abusing her regularly and making her believe
that it was her fault.

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 7. Soon after the incident Mukhtar decided to go for a second marriage in spite of several
objections raised by Asma. Nevertheless he got married to Parveen. After his second
marriage Mukhtar started neglecting Asma and shifted to another apartment leaving
Asma alone by herself. Initially he gave maintenance to her but after few months he
stopped paying maintenance. So in order to maintain herself she started looking for a job
but to no avail.
8. Later on 12th April, 2017 Mukhtar in the presence of witnesses Ahmed Khan and Na
Wazish Hussain (friends of Muktar) declared “I GIVE ‘TALAQ, TALAQ, TALAQ’,
hence I divorced my wife Asma from the said date and she is free to lead her life and the
same was conveyed to Asma by way of letter sent through post along with Divorce deed
duly signed by witnesses. The amount of Meher (dower) was tendered to be paid as and
when required with the amount of maintenance for the waiting period to the extent of Rs.
50,000.
9. Asma was shocked in disbelief to receive the information and decided to exercise her
right as a woman and filed a petition invoking original jurisdiction of the Apex Court
under Article 32 of the Constitution of Pindiana for attacking her by way of such
declaration by Mukhtar. Meanwhile triple talaq was made illegal by passing an ordinance
The Muslim Women (Protection of Rights on Marriage) Second Ordinance, 2019.
10. It is contended by the petitioner that the instant talaq provided by Shariat Law should be
declared void-ab-initio as it causes gross injustice and terminates the matrimonial ties
between spouses.
11. It is further contended that such practice of talaq-e-biddat (triple talaq) violates the
fundamental rights enshrined under Article 14, 15 and 21 of the Constitution of Pindiana
where Muslim population is second highest. It is also stated in the contention that
countries like INDIA where laws are at par with Pindiana and such practice was declared
unconstitutional by high court of Chind. Later on Mukhtar filed a Special Leave Petition
to hold the ordinance unconstitutional. Subsequently the Hon’ble Supreme Court
combined both the matters & constituted a constitution bench of 7 Judges to resolve both
the cases.
12. The petition is listed for the final hearing in the Constitutional Bench of the Hon’ble
Supreme Court of Pindiana

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 ISSUES RAISED

I. WHETHER THE FUNDAMENTAL RIGHTS OF ASMA INFRINGED THROUGH

TRIPLE TALAQ?
II. WHETHER THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON
MARRIAGE) SECOND ORDINANCE, 2019 IS VALID IN THE EYES OF LAW?

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 SUMMARY OF ARGUMENTS

ISSUE I. WHETHER THE FUNDAMENTAL RIGHTS OF ASMA INFRINGED

THROUGH TRIPLE TALAQ?

It is humbly submitted to this Hon’ble Court that the Petitioner has approached this Hon’ble
Court invoking Article 32 of the Constitution of Pindiana. It is contended that the present petition
is liable to be dismissed as Asma has not followed the proper procedure of law by directly
approaching the Hon’ble Supreme Court. The Writ of Mandamus will not be applicable as there
is appropriate Ordinance to punish the Muslim male spouse who has declared Instant Triple
Talaq to their wives and Instant Triple Talaq violates the legal rights under the Muslim Personal
Laws and not the fundamental rights.

ISSUE II. WHETHER THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON

MARRIAGE) SECOND ORDINANCE, 2019 IS VALID IN THE EYES OF LAW?

It is humbly submitted that the ordinance passed by the government is constitutional. Due to the
lack statutory laws the Muslim women were discriminated by the arbitrary use of Triple Talaq by
their Husbands. As such cases rose rapidly in Pindia it was a need of the hour for the government
to pass such ordinance making Triple talaq illegal and provide penal provisions for the same.

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 ARGUMENTS ADVANCED

ISSUE I.WHETHER THE FUNDAMENTAL RIGHTS OF ASMA INFRINGED

THROUGH TRIPLE TALAQ?

It is most humbly submitted that the Petitioner has approached this Hon’ble Court under Article
32 of the Constitution of Pindiana. A mandamus is sought to direct the Executive to take proper
action against Mukhtar. The petitioner contends that although Triple talaq is declared
unconstitutional by the High Court of Chind, Mukhtar has not abided by it, pronounced Triple
talaq and hence violated her fundamental rights. The respondent submits that the petition of
Asma is liable to be dismissed due to the following grounds:

1. ASMA HAS NOT FOLLOWED THE PROPER PROCEDURE OF LAW

It is submitted that Mukhtar pronounced "triple talaq" to Asma on April, 2017, when there
existed no law criminalizing it. Further Asma’s contention is not valid since the High Court of
Chind had already declared triple talaq unconstitutional. Thus the petitioner by seeking the
Hon’ble court to declare the act of triple talaq as unconstitutional is only frustrating the Hon’ble
Court's time. When one has received her remedy, there arises no logical need to seek it again.
Moreover the Doctrine of Exhaustion of Alternative Remedies provides that a litigant must
follow the hierarchy of judicial system. In the case of Union of India v T.R. Verma 1 the Court
held that “It is a well settled that when an alternative and equally efficatious remedy is open to a
litigant, he should be required to persue that the remedy and not to invoke the special jurisdiction
of the High Court to issue a prerogative writ.” Therefore in the present case Asma should have
approached High Court of Chind and not directly Supreme Court. She has not exhausted the
remedies available closest to her. Further while the instant matter was pending before the
Hon’ble Court, the State had already promulgated an ordinance criminalizing the act of triple
talaq. However the petitioner does not come under the purview of the ordinance because it does

1
AIR 1957 SC 882
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not have “retrospective effect”2. Therefore there is no remedy that Court can offer to the
Petitioner in the present matter.
2. A WRIT OF MANDAMUS CANNOT BE DIRECTED IN THE PRESENT CASE
It is submitted that the writ in the form of mandamus would be issued when there is a failure to
perform a mandatory duty. But even in the alleged breaches of mandatory duty the party must
show that he has made a distinct demand to enforce that duty and the demand was met with
refusal.3 In the present case Asma has never approached to any of the authority of law for
seeking remedies for the violation of her rights. If only she would have been denied of such right
she would have approached this Hon’ble court seeking writ of mandamus to direct the authority
to abide by the law. Moreover there is no breach of duty of the State as there is a judicial
proclamation making triple talaq unconstitutional, a legislative action in the form of Ordinance
making triple talaq illegal and a criminal offence thus empowering executive to take action on
breach.
3. TRIPLE TALAQ IS NOT VIOLATIVE OF THE FUNDAMENTAL RIGHTS
It is submitted that the act of triple talaq has been provided under the Muslim Personal laws and
therefore it cannot be brought under the scrutiny of Article 13 of Pindiana. Under existing Indian
case law, laws prepared by the legislature have to be consistent with fundamental rights in the
Constitution. However, uncodified personal laws do not need to comply with fundamental
rights.4 In the present case Mukhtar has pronounced instant triple talaq to Asma. The said act
Mukhtar violated Asma’s legal right under the Muslim Personal Laws and not the fundamental
rights.
II. WHETHER THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE)
SECOND ORDINANCE, 2019 IS VALID IN THE EYES OF LAW?

It is most humbly submitted that the Parliament of Pindiana had passed The Muslim Women
(Protection of Rights on Marriage) Second Ordinance, 2019 which made triple talaq illegal. In
the present case Mukhtar has approached this court through SLP and challenged the validity of

2
Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602, it was stated that the ambit and
scope of an amending Act and its retrospective operation as follows: “A statute which not only changes
the procedure but also creates new rights and liabilities shall be construed to be prospective in Operation
unless otherwise provided, either expressly or by necessary implication."
3
Saraswati Indusrial Syndicate Ltd. V. Union of India, AIR 1975 SC 46
4
Ahmedabad Women Action Group & Ors. v. Union of India
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the ordinance stating it to be unconstitutional. It is submitted that the ordinance passed is valid in
the eyes of law due to the following reasons:
A. CIRCUMSTANCES EXITED THAT IT WAS NECESSARY TO PASS THE
ORDINANCE.
It is submitted that under the Constitution, the power to make laws rests with the legislature.
However, in cases when Parliament is not in session, and ‘immediate action’ is needed, the
President can issue an ordinance. The Supreme Court has clarified that the legislative power to
issue ordinances is ‘in the nature of an emergency power’ given to the executive only ‘to meet an
emergent situation’.5
(1) The Ordinance passed was not arbitrary.
‘Arbitrarily’ means in an unreasonable manner, as fixed or done capriciously or at
pleasure, without adequate determining principle, not founded in nature of things, non-
rational, not done or acting according to reason or judgment, depending on will alone. 6
Since Maneka Gandhi’s case,7 the Courts have adopted the Wednesbury principle that if
the classification was an arbitrary act of the State under Art.12 of the Constitution, Art.14
would strike it down.8 Art.14 protects us from both legislative and executive tyranny by
way of discrimination.9
Article 123 enables the promulgation of ordinances only in instances requiring “immediate
action”. The absence of emergent reasons negates any invocation of the provision.10
Despite the Central Government having had ample opportunity to abolish the practice before the
judgment in Shayara Bano11, if not for 1400 years, at least the 67years of the existence of the
Constitution preceding Shayara Bano, the Government chose to await the adjudication in
Shayara Bano.
Once there was declaration made by this Hon’ble Court under Article 141 in Shahyara Bano
(supra), there was no surviving action, let alone “immediate action” warranted to reiteratively
abolish the practice and penalize Triple Talaq by way of an Ordinance under Article 123.

5
Article 123 of Constitution of Pindiana.
6
Sharma Transport v. Govt. of A.P., AIR 2002 SC 322.
7
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
8
Kasturi Lal Lakshmi Reddy v. State of J&K, AIR 1980 SC 1992, ¶ 14.
9
Basheshar Nath v. The Commissioner of Income Tax, Delhi & Rajasthan, AIR 1959 SC 149, ¶25
10
Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1
11
2017 (9) SCC 1
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The intent behind the ordinance is abolition of triple talaq and punishment of Muslim husbands.
Thus the Ordinance passed has no element of whim or ambiguity which would make it fall
within the purview of definition of ‘arbitrarily’.

B. THE ORDINANCE IS NOT VIOLATIVE TO THE FUNDAMENTAL RIGHTS AS

ENSHRINED IN THE CONSTITUTION
It is humbly submitted before this Hon’ble Court that the ‘Pehchaan Policy and the Ordinance
brought by the respondent is not in violation of Art. 14, Art. 15 or Art. 21 guaranteed under Part
III of the Constitution of Pindiana.

1. The ordinance does not violate Article 14

It is submitted that an Ordinance can violate Article 14 only when such ordinance is
arbitrary passed. Describing “manifestly arbitrary” Justice Nariman observed that
“manifest arbitrariness, therefore, must be something done by the legislature capriciously,
irrationally and/or without adequate determining principle. Also, when something is done
which is excessive and disproportionate, such legislation is manifestly arbitrary” 12 In the
present case due to the lack statutory laws the Muslim women were discriminated by the
arbitrary use of Triple Talaq by their Husbands and there was a dire need to make some
statutory law to protect the interest of Muslim women. Thus the ordinance was passed by
the government in its wisdom thought it appropriate to make it an offence, no
unconstitutionality is committed in the matter.
2. The ordinance does not violate Article 15
It is submitted that the procedure of triple talaq vests an arbitrary right in the husband to
divorce a wife without the disclosure or absence of any reason, even could be pronounced
in the absence of the wife, and even without her knowledge. ‘Talaq-e-biddat’ clearly
discriminates Muslim women on the grounds of sex and thus violates Article 15 of the
Constitution of Pindiana. In the present case the Ordinance makes triple talaq illegal and
thereby it puts a clear restraint on discrimination of Muslim women, on the ground of
sex. Thus the ordinance does not violate Article 15 of the Constitution of Pindiana.
3. The ordinance is not in violation to Article 21

12
Shayara Bano v. Union of India & Others. 2017 (9) SCC 1
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 It is submitted that the practice of triple talaq has resulted severe gender discrimination of
the rights of the Muslim women in a matrimonial alliance. Such practice is a clear
violation to Article 21 of the Constitution of Pindiana. It is the duty of the State to pass
required laws so that a person is not deprived of his fundamental rights. In the present
case the Ordinance passed protects Muslim women from deprival of right to life and
personal liberty. Thus the ordinance is not in violation to Article 21.

C. AN ORDINANCE CANNOT BE CHALLENGED UNDER ARTICLE 136 OF THE

CONSTITUTION OF PINDIANA
It is submitted that Article 136, the Constitution of Pindiana gives power to the Supreme Court to
grant special permission or leave to an aggrieved party to appeal against an order passed in any
of the lower courts or tribunals in India.
In the case of Engineering Mazdoor Sabha v Hind Cycles Ltd. 13, the Court held that for invoking
Art 136(1) two conditions must be satisfied: (1) the act complained against must have the
character of a judicial or a quasi-judicial act as distinguished from a mere executive or
administrative act, and (2) the authority whose act is complained against must be a court or a
tribunal. Unless both the conditions are satisfied, Art. 136(1) cannot be invoked.
In the case of Gurudutta VKSSS Maryadit v. State of Maharshtra 14 the court held that “passing
an ordinance is not an administrative or executive action, but being legislative in nature, it is
subject only to constitution limitations applicable to ordinary states. The Ordinance if does not
infringe the constitutional safeguards, cannot be examined nor can the motive for such a
promulgation be in question.”
In the present case Mukhtar has filed a SLP challenging the constitutionality of the Ordinance. It
is submitted that an Ordinance is legislative in nature and it does not have any judicial or quasi-
judicial character. Therefore the SLP cannot be invoked.

13
AIR 1963 SC 874
14
AIR 2001 SC 1980
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 PRAYER

Wherefore in the light of facts presented, issues raised, arguments advanced and
authorities cited, the Counsels on behalf of the Appellant humbly pray before this Hon’ble
Court that it may be pleased to adjudge and declare that:

1. A

2. The Muslim Women (Protection Of Rights On Marriage) Second Ordinance,

2019 is constitutional

And/or pass any other order that the court may deem fit in the light of equity, justice and
good conscience and for this Act of kindness of Your Lordships the Appellant shall as duty
bound ever pray.

Sd/- _______________________

Counsels for the Appellant.

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