Docsity
Docsity

Prepare for your exams
Prepare for your exams

Study with the several resources on Docsity


Earn points to download
Earn points to download

Earn points by helping other students or get them with a premium plan


Guidelines and tips
Guidelines and tips

Moot Memorial for respondent, Assignments of Law

Whether PIL filed by petitioner 3 is maintainable? B. Whether sexual orientation is in violation of Article 14 and 21 of the Constitution of India? C. Whether writ of mandamus can be issued against the marriage officer?

Typology: Assignments

2019/2020
On special offer
30 Points
Discount

Limited-time offer


Uploaded on 05/21/2020

prachisharma
prachisharma 🇮🇳

4.6

(5)

1 document

Partial preview of the text

Download Moot Memorial for respondent and more Assignments Law in PDF only on Docsity!

TEAM CODE: 12

BEFORE HONORABLE SUPREME COURT OF INDIA

th

ALL INDIA NATIONAL MOOT COURT

COMPETITION

ORIGINAL WRIT JURISDICTION

FRIENDS OF LGBT AND ANOTHER…………………………… PETITIONER

V.

UNION OF INDIA………………………………………………….. RESPONDENT

BEFORE SUBMISSION TO HON’BLE CHIEF JUSTICE AND HIS COMPANION

JUDGES OF THE HON’BLE SUPREME COURT OF INDIA

MEMORANDUM ON BEHALF OF THE RESPONDENT

TABLE OF CONTENTS

    1. List of abbreviations……………
      1. Index of Authorities………………
      1. Synopsis………………………..
        1. Statement of Jurisdiction………
        1. Statement of Facts………………
      1. Statement of Issues……….
        1. Summary of Arguments…………
        1. Arguments advanced……………..
      1. Prayer……………………………….

2 LGBT Lesbian Gay Bisexual Transgender Raj. Rajasthan MO Marriage Officer Mad. Madras US United States of America UOI Union of India U/s Under section Govt. Government

3

INDEX OF AUTHORITIES.

  1. National Legal Service Authority v. Union of India [2014 5 SCC 438] ………………………………………………………………………………..12, 13
  2. Supreme Court of India Guidelines to file PIL……………………………………………………………………………….. 13
  3. Navjet Singh Johar & Ors. v. Union of India thr. Secretary of Ministry of Law and Justice [2003 AIR SCC 3397]…………………………………………………………………................... 13
  4. Suresh Seth v. Commr., Indore Municipal Corporation : (2005) 13 SCC 287 …………………………………….................................................................. 13
  5. Rusom Cavasiee Cooper v. Union of India [1970 1 SCC 248]………………………………………………………………………………. 13
  6. Supreme Court Employees Welfare Association v. Union of India [1989 SCR (3) 488]…………………………………………………………………………......... 14
  7. M/S Grasim Industries Ltd. V. Collector of Customs, Bombay [2003 AIR SC 3397]……………………………………………………………………………... 14
  8. The State of Bombay v. Narasu Appa Mali [1952 AIR Bom 84]……………………………………………………………….. ………………1 4
  9. Page 10, Law of morality and sexual orientation, John Finnis. …………………………………………………………………………………… 15
  10. Page 24, Law of morality and sexual orientation, John Finnis………………………………………………………………………..…… 16
  11. the defence of Natural law, Charles cowell,st.martins press, 1992 …… …………………………………………………………………………………… 16

5

SYNOPSIS

Anersi and Berni, two female Law students from Shakipur in the state of rangasthan were living together as spouses. They decided to get married and notified to the marriage officer of Shakipur North. On publishing notice as per Special marriage Act, one Fr.Samuels Objected under Section 8 of the Act for the noncompliance by the couple of Section 4 clause C of the Act. Anershi and Bernie filed a writ petition in this court under article 32 for issuance of writ of mandamus against the marriage officer of Shakipur. Another community LGBT also has filed a PIL in concern with the same issue under article 32 of Indian Constitution. The court has decided to hear both the petitions jointly. WRIT PETITION FILED BEFORE THIS HONOURABLE COURT Petitoner 1 …….. Anershi Petitioner 2 …… Berni Petitioner 3 …… Friends of LGBT V. Respondent 1 …….. Union of India Respondent 2 ……. State of Rangasthan Respondent 3 ……. Marriage Officer Respondent 4 ……. Father Samuel.

6

STATEMENT OF JURISDICTION

The Honourable Supreme Court of India has the jurisdiction in this matter under Article 32 of the Constitution of India which reads as follows: “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.”

8

  1. Statement 3 in the objection by respondent 4 that same sex civil marriage would deny the children of their mother.
  2. Respondent 4, in context to a statement "lesbian parenting may free daughters and sons from a broad but uneven range of traditional gender prescriptions." made by Judith Stacey.
  3. In Respondent 4 , statement 5 is quoted from the book “self-defence of same sex- marriage”, happily same sex married Andrew Sullivan words, "There is more likely to be greater understanding of the need for extramarital outlets between two men than between a man and a woman." concludes that sexual fidelity exists more in same sex marriage.
  4. Respondent 4 in his 6th^ statement contended that same sex marriage would isolate marriage from its procreative purpose.
  5. Respondent 4 in his 7th statement to support his objection is that same-sex "marriage" would further diminish the expectation of paternal commitment and marriages thrive when spouses specialize in gender-typical roles
  6. On 4.12.2018, it was communicated to the petitioners that they cannot solemnize their marriage, under the objection from respondent 4 accepted by respondent 3.
  7. The Petitioners 1 and 2 Honourable court by invoking jurisdiction under Article 32 of Constitution of India. Petitioner 3 on behalf of LGBT community filed a PIL before this honourable court under article 32 seeking intervention of this court.
  8. (6). Same-sex "marriage" would further isolate marriage from its procreative purpose. Traditionally, marriage and procreation have been tightly connected to one another. Indeed, from a sociological perspective, the primary purpose that marriage serves is to secure a mother and father for each child who is born into a society. Now, however, many Westerners see marriage in primarily emotional terms. Among other things, the

9 danger with this mentality is that it fosters an anti-nationalist mind-set that fuels population decline, which in turn puts tremendous social, political, and economic strains on the larger society. Same-sex marriage would only further undercut the procreative norm long associated with marriage. (7). Same-sex "marriage" would further diminish the expectation of paternal commitment. Marriages thrive when spouses specialize in gender-typical roles. If same- sex civil marriage is institutionalized, our society would take yet another step down the road of de-gendering marriage. There would be more use of gender-neutral language like "partners" and--more importantly--more social and cultural pressures to neuter our thinking and our behaviours in marriage.

  1. On 4.12.2018, it was communicated to the petitioners that they cannot solemnize their marriage under the objection from Fr. Samuel and it would be against the social interest.
  2. On 11.12.2008, the couple filed a petition before the Supreme Court of India under Article 32 of the Constitution challenging the validity of the decision of the Marriage Officer without availing other alternative remedies available to them.

11

SUMMARY OF ARGUMENTS.

A. Whether PIL filed by petitioner 3 is maintainable? Considering the guidelines given by Supreme Court in different cases, a PIL that is filed for publicity and to gain spiteful attention cannot be maintained in this Honourable Court and may be dismissed with exemplary costs. Direction cannot be issued to the union government to formulate laws or to amend the special marriage act as the court has observed in various cases that judiciary has to power to review the law but has no power to formulate new laws. Direction may be provided to all marriage officers to perform their duty. But not for the Marriage officers to perform a duty contrary to the statute that they were created under unless the legislature deems fit to make such amendments. B. Whether sexual orientation is in violation of Article 14 and 21 of the Constitution of India? Such sexual orientation is needed to be restricted, which is a part of the reasonable classification which is to protect the community from the society as there shall be no room for contaminating the pious purpose and sanctity of marriage. C. Whether writ of mandamus can be issued against the marriage officer? The Marriage Officer falls in the definition of State. But writ of mandamus is issued only when that person does not perform his statutory date. Objection filed by Fr. Samuel had to be accepted to which the marriage officer came to conclusion that such marriage would be illegal.

12

ARGUMENTS ADVANCED

A. PIL maintained by petitioner 5 is not maintainable before this court. Ø PIL filed was a mere publicity.

  1. The LGBT community is a combination of Lesbian, Gay, Bisexual and Transgender. The only class that is economically disadvantaged could be said to be the transgender’s who are now been provided a third gender.
  2. We submit that, in case of NALSA^1 , the Supreme Court has provided directions to the union government and state government to include transgender as third gender to avail equal opportunities in education and jobs. The court had decided that the issue relating to the marriage and matrimonial of the third is left to the union government to frame rules when it thinks deem fit.
  3. We submit that, the other classes other than transgender are not economically disadvantaged and most of them still want to remain discreet and hold their relationship even after the decriminalisation of sec 377. The persons whose fundamental rights are alleged to be infringed are already before this court in the matter of Anershi and Anr v State of Rangasthan.
  4. We submit that, taking the above in account it is to be understood that such PIL was not filed for the disadvantaged but is ill advised and a mere attempt for publicity. A PIL for publicity is intended to be for personal benefit. “ no petition involving indivisual/personal matter shall be entertained as a PIL matter ”^2. Ø Directions may not be given to the union government.
  5. National Legal Service Authority v. Union of India [2014 5 SCC 438]
  6. Supreme Court of India Guidelines to file PIL

14 As can be seen from the extracted portion of the said judgment, in Supreme Court Employees Welfare Association^7 , it was categorically held that no court can direct a legislature to enact a particular law.

  1. It is submitted that , what constitutes social reform is for the legislature to decide the same, as they hold the closest hand towards the society. “ … the will expressed by the legislature, constituted by the chosen representatives of the people in a democracy, who are supposed to be responsible for the welfare of the state, is the will of the people and if they lay down a policy which am state should pursue such as legislature in its wisdom fells it be deemed fit”^8
  2. It is submitted that, it is crystal clear about the intention and objective of the legislature formulating such act for solemnization of marriage who don’t fall under the traditional personal laws. Such unambiguous law may not be directed for amendments in the act. “ where the words are clear and there is no obscurity and there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for court to take upon itself the task of amending or altering the statutory provisions ”^9
  3. It is further submitted that, Directions cannot be given to the union government for this particular as it regards private law and so hence the due to the forgave reasons the PIL is not maintainable in this Honourable Court.
  4. Supreme Court Employees Welfare Association v. Union of India [1989 SCR (3) 488]
  5. The State of Bombay v. Narasu Appa Mali [1952 AIR Bom 84]
  6. M/S Grasim Industries Ltd. V. Collector of Customs, Bombay [2003 AIR SC 3397]

15

  1. It is submitted that, the PIL was unmerited, unwarranted and ill- advised which invariably wasted this courts time and the honourable court may dismiss this petition with exemplary costs. B. Discrimination based on sexual orientation is not in violation of Article 21 and 14 of the Constitution. Ø Jurisprudence on sexual orientation
  2. We submit that, the rejection of same sex marriage is to contend that homosexuality fails to correspond with the basic definition of marriage. First, that the genital union of the homosexual couples cannot actualise the marital good, Second, that homosexual intercourse instead of unifying the couple, intensifies their separate individuality thus is unnatural to marriage.
  3. We submit that, the conjugal version of marriage involves both mind and body. The civil union, as two spouses of different sexuality are w put together, is the “ Procreative significance ” this bodily union “can actualize and allow them to experience their real common good, parenthood and friendship”^10
  4. It is denied that, homosexual couples entering into civil will not be able to exercise conjugal rights applied to heterosexual couples. The intercourse between two homosexual spouses is simply the attempt for pleasure, instead attached any moral values of marriage.
  5. Page 10, Law of morality and sexual orientation, John Finnis.

17

  1. It is submitted that, supporters for same sex marriage claim that it does no harm to the society, but changing the definition of marriage would lead to a slippery slope to the society.
  2. It is submitted that, since time immemorial, same sex marriages weren’t allowed in the country and it was highly opposed by the people. As we forward, the custom still prevails
  3. It is submitted, that state restricting same sex marriage will restrain a person from impious exploration of bigamy and polyandry as the sanctity of marriage is still defined in the same medium. C. Writ of Mandamus cannot be issued against the Marriage officer. Ø Interpretation of section 4(c) os special marriage act
  4. It is submitted that the legislative has a crystal clear objective on whom special marriage act is applicable to when the respondent 1 made such laws, it is incumbent marriages of inter-cast and inter-faith.
  5. It is contended, that section 4(c) of the act states that “ the man has completed the age of twenty-one years and the female the age of eighteen years” which explicitly states that the parties to a marriage one shall be a male and the other shall be a female.
  6. It is submitted that, the word “the” is emphasised to not provide any exhaustive definition to the condition and rather definite meaning to the couple to be of opposite sex. “ if the language is clear and unambiguous, no need for interpretation would arise ” 16.
  7. R.S. Nayak v. A.R. Anutley [1984 AIR 684]

18

  1. It is submitted that a set of statements were notified to the respondent 3 on objection from and by respondent 4. The statements are true and are made in context to save the sanctity and the objective of a marriage.
  2. It is submitted that, the objection from respondent 4 was accepted by the Marriage officer under section 7 of the Special Marriage Act. The compliance of his duty to the statute was performed and no mandamus may be filed to prevent him from doing such duty.
  3. It is submitted that, the petitioner has no legal right to compel the performance of that public duty to the public officer to refrain from doing that duty. “Its function is to compel the performance of a present existing duty as to which there is default’ And further states that “It is not granted to take effect prospectively and it contemplates the performance of an act which is incumbent on respondent when an application for a writ is made”^17
  4. It is submitted that, the Allahabad high court had held that certain conditions have to be satisfied before a writ of mandamus is issued. The petitioner for a writ of mandamus must show that he has a legal right to compel the respondent to do or abstain from doing something. “ ….. there must in a petitioner a right to compel performance of some duty cast on respondents”.^18
  5. Raisa Begum and Ors. V. State of Uttar Pradesh and Ors. [1995 Crlj 1067]