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Moot Memorial On Behalf Of Petitioners, Papers of Law

vividly explaining the moot memorial on behalf of petitioners

Typology: Papers

2019/2020

Uploaded on 03/16/2024

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MEMORANDUM ON BEHALF OF THE PETITIONERS^ i

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BEFORE

THE HON’BLE SUPREME COURT OF INDIA

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EXTRAORDINARY ORIGINAL JURISDICTION

WRIT PETITION (PIL)

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

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WASIM & OTHERS……………..……………………...……..PETITIONERS

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VERSUS

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UNION OF INDIA & ANR…….……………………………RESPONDENTS

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Submitted Before the Hon’ble Supreme Court of India

MEMORANDUM ON BEHALF OF THE PETITIONERS

TIN: JM JM

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MEMORANDUM ON BEHALF OF THE PETITIONERS^ i

TABLE OF CONTENTS

  1. LIST OF ABBREVIATIONS……………………………………..………………iii
  2. INDEX OF AUTHORITIES……………………………………….……………...iv
  3. STATEMENT OF JURISDICTION……………………………….……………..vii
  4. STATEMENT OF FACTS……………………………………………….………viii
  5. ISSUES FOR CONSIDERATION………………………………………….…......ix
  6. SUMMARY OF PLEADINGS………………………………….…………………x
  7. WRITTEN SUBMISSIONS…………………………………………………….1- I. THE PRESENT PIL IS MAINTAINABLE. II. THE TRIPLE TALAQ (CRIMINALIZATION) ACT, 2018 IS CONSTITUTIONALLY INVALID. III. THE INITIATION OF CRIMINAL PROCEEDINGS AGAINST THE PETITIONER IS LEGALLY UNTENABLE. 8. PRAYER FOR RELIEFS……………………………..............................................xi

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MEMORANDUM ON BEHALF OF THE PETITIONERS^ ii

LIST OF ABBREVIATIONS

AIR (^) All India Report Anr. Another Art. Article Hon’ble Honourable i.e. That is

IPC Indian Penal Code Ors. Others

PIL Public Interest Litigation SC Supreme Court SCC Supreme Court Cases Sec. Section Supp. Supplementary

V. Versus ED. Edition & And Ltd. Limited

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MEMORANDUM ON BEHALF OF THE PETITIONERS^ iii

INDEX OF AUTHORITIES

 CASES REFERRED

    1. Binny Ltd. & Anr. v. Sadasivan & Ors. AIR 2005 SC S.NO Name of the Case Citation
    1. Brij Mohan Lal v. Union of India^2012 6 SCC
    1. Calcutta Gas Co. Ltd. v. State of West Bengal AIR 1962 SC
    1. Charan Lal Sahu v. Union of India AIR 1990 SC
    1. Chunnilal Mehta v. Century Spinning & M Co. Ltd AIR 1962 SC
    1. Coffee Board v. Jt. Commercial Tax Officer AIR 1971 SC
    1. D.A.V. College v. State of Punjab (1971) 2 SCC
    1. Dale & Carrington Investment Ltd. v. P.K. Prathapan (2005) 1 SCC
    1. Daryao v. State of Uttar Pradesh 1962 SCR (1)
    1. Dattaraj Nathuji Thaware v. State of Maharashtra AIR 2005 SC
    1. Fertilizer Corporation Kamgar Union v. Union of India AIR 1981 SC
    1. Janta Dal v. H. S. Chowdhary AIR 1993 SC
    1. Kanaiyalal v. Indumati AIR 1958 SC
    1. Kharak Singh v. State of U.P. AIR 1963 SC
    1. Kochhuni v. State of Maharashtra AIR 1959 SC
    1. L.V. Jadhav v. Shankarrao Abasaheb Pawar AIR 1983 SC
    1. Lily Thomas v. Union of India AIR 2000 SC
    1. M.C. Mehta & Anr. v. Union of India & Ors. AIR 1987 SC
    1. Maneka Gandhi v. Union of India AIR 1978 SC

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MEMORANDUM ON BEHALF OF THE PETITIONERS^ iv

  1. Md. Azmal & Ors. v. The State of Bihar AIR 2010
  2. P.E. Mathew v. Union of India AIR 1999 Ker 345
  3. P.M.A. Metropolitan v. Moran Mar Marthoma AIR 1995 SC 2001
  4. Pawan Kumar v. State of Haryana (2003) 11 SCC 241
  5. Prem Chand Garg v. Excise Commissioner AIR 1963 SC 996
  6. Ram Prasad v. State of Andhra Pradesh^ AIR 1957 All 411
  7. Ramesh Dalaji Godad v. State of Gujarat II (2004) DMC 124
  8. S P. Gupta v. Union of India AIR 1981 SCC 87
  9. Shayara Bano v. Union of India & Ors 2017 9 SCC 1
  10. Soni Devrajbhai Babubhai v. State of Gujarat AIR 1991 SC 2173
  11. State of Bombay v. Narasu Appa Mali AIR 1952 Bom 84
  12. State of Maharashtra v. K.K. Subramaniam Ramaswamy AIR 1977 SC 2091
  13. State v. Farooq & Ors. (2002) 4 SCC 697
  14. State v. Mohd. Hafees 1960 AIR 669
  15. Sukhdev & Ors v. Bhagat Ram &^ Ors^ AIR 1975 SC 1331
  16. Wealth Tax Commr. Amritsar v. Suresh Seth AIR 1981 SC 1106
  17. Masroor Ahmed v. State (NCT of Delhi) 2008 103 DRJ 137

 BOOKS REFERRED

 DURGA DASS BASU, COMENTARY ON THE CONSTITUTION OF INDIA

(8TH^ ED. 2012)

 H.M. SEERVAI, CONSTITUTION OF INDIA, (4TH^ ED. 2013)

 DURGA DASS BASU, SHORTER CONSTITUTION OF INDIA, (13TH^ ED. 2001)

 M.P. JAIN, INDIAN CONSTITUTIONAL LAW, (7TH^ ED. 2014)

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MEMORANDUM ON BEHALF OF THE PETITIONERS^ v

 V.N.SHUKLA, CONSTITUTION OF INDIA, (13TH ED. 2017)

 WHARTON, LAW LEXICON, (15TH^ ED. 2009)

 MULLA, PRINCIPLES OF MAHOMEDAN LAW, (21ST^ ED. 2017)

 AQIL AHMED, MOHAMMEDAN LAW, (26TH^ ED. 2016)

 K.D. GAUR, TEXTBOOK ON INDIAN PENAL CODE, (6TH^ ED. 2016)

 SYED TAHIR MAHMOOD, THE MUSLIM LAW OF INDIA, (3RD^ ED. 2002)

 ARTICLES REFERRED

 http://www.thehindu.com/todays-paper/tp-opinion/triple-talaq-and-the- constitution/article18421721.ece.  https://thewire.in/gender/why-criminalising-triple-talaq-is-unnecessary-overkill.  https://thewire.in/women/is-the-indian-judiciary-going-back-on-gender-justice  STATUTES REFERRED  INDIAN PENAL CODE,  THE MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT,  PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT,  INDIAN EVIDENCE ACT, 1872  CONSTITUTION REFERRED  CONSTITUTION OF INDIA, 1950  WEBSITES  http://www.manupatra.com  http://www.lexisnexis.com/in/legal  http://www.scconline.com  http://www.oxforddictionaries.com

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MEMORANDUM ON BEHALF OF THE PETITIONERS^ vi

 RELIGIOUS TEXTS

 ABDULLAH YUSUF ALI, THE HOLY QURAN: TEXT TRANSLATION &

COMMENTARY, (14TH^ ED. 2016)

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MEMORANDUM ON BEHALF OF THE PETITIONERS^ vii

STATEMENT OF JURISDICTION

The petitioners have approached this Hon’ble Court under Article 32^1 of the Constitution of India.

The present memorandum sets forth the facts, contentions and arguments.

(^1) INDIA CONST. art. 32.

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MEMORANDUM ON BEHALF OF THE PETITIONERS^ viii

STATEMENT OF FACTS

I. BACKGROUND OF PARTIES

  1. Wasim Mohd, a doctor by profession and native of Hyderabad was married to Ms. Salma, a dentist as per Islamic traditions at Hyderabad in December 2015. As Wasim had secured an employment in a corporate hospital in Dubai, post-marriage the couple shifted to the country and lived amicably for 2 years.
  2. Owing to Salma’s modern lifestyle, differences grew between them in 2017. Salma returned to her parents in Hyderabad in January, 2018. Wasim called Salma after 15 days of arrival and pronounced triple talaq on her, much to her dismay. He transferred the amount of the Mahr, a sum of Rs 50,000 to her bank account and informed her over the phone. II. PROCEDURAL BACKGROUND
  3. Salma was devastated over this unilateral and hasty action and upon consultation with a legal counsel, challenged the validity of triple talaq in the Supreme Court of India. Her petition cited Article 14, 15, 25, relevant portions of the Holy Quran apart from the opinions of Muslim Scholars in her support.
  4. Her writ petition was clubbed with other writ petitions in the nature of PIL which challenged the validity of triple talaq. A constitution bench of Supreme Court by a majority of 4:1 declared that the practice of triple talaq among the Muslims is discriminatory against the Muslim women and that such practice is also not approved under the Muslim Personal Law of India.

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MEMORANDUM ON BEHALF OF THE PETITIONERS^ ix

III. QUESTION OF LEGAL IMPORTANCE

  1. The Government of India in an effort to quell the practice of triple talaq created an Act; Triple Talaq (Criminalization) Act, 2018 inter alia that any Muslim husband pronouncing instant talaq shall be liable to be punished with minimum 2 years and a maximum of 7 years apart from providing compensation to his Muslim wife.
  2. Gaining impetus from the new law, Salma filed a criminal complaint against Wasim and demanded a compensation of Rs 1 Cr. Aggrieved by the action of Salma, Wasim prayed along with similarly placed husbands for declaration of the unconstitutionality of the Triple Talaq (Criminalization) Act, 2018 on the basis that it is unreasonable and violates Right of Freedom.

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MEMORANDUM ON BEHALF OF THE PETITIONERS

ISSUES FOR CONSIDERATION

I. WHETHER THE PRESENT PIL IS MAINTAINABLE OR NOT?

II. WHETHER THE TRIPLE TALAQ (CRIMINALIZATION) ACT, 2018 IS

CONSTITUTIONALLY VALID OR NOT?

III. WHETHER THE INITIATION OF CRIMINAL PROCEEDINGS AGAINST THE

PETITIONER IS LEGALLY TENABLE?

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MEMORANDUM ON BEHALF OF THE PETITIONERS^ x

SUMMARY OF PLEADINGS

I. THE PRESENT PIL IS MAINTAINABLE.

It is humbly submitted before this Hon’ble Court that the petitioners have the locus standi and therefore the petition filed is maintainable by the virtue of Art. 32 of the Constitution of India which allows petition filed by an aggrieved individual whose fund rights are violated and also holds the petition maintainable when the question of law is raised due to the violation of fund rights of public at large, and, the Hon’ble Court has utilized the zeal of such spirited citizens in furthering justice and equality.

II. THE TRIPLE TALAQ (CRIMINALIZATION) ACT, 2018 IS CONSTITUTIONALLY INVALID. It has been contended that the Act passed by the parliament for criminalizing the practice of triple talaq is inconsistent with the fundamental rights of Muslim husbands and is unreasonable as there are already existing provisions for penalties regarding the matter according to ex-post facto law under art. 20(1). Criminalizing the practice of triple talaq by passing the Act violates the right to freedom of religion under art. 25 of Muslim husbands.

III. THE INITIATION OF CRIMINAL PROCEEDINGS AGAINST THE PETITIONER IS LEGALLY UNTENABLE. It is submitted that the practice of triple talaq should not be criminalized as it does not fulfils the requirements of the essentials of a crime. Even, the Muslim women do not get any relief by the Act passed instead this would increase the problems relating to the case in the court which would also harm her matrimonial relationship. Also, the quantum of punishment provided in the Act passed is not appropriate according to the act in concern.

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MEMORANDUM ON BEHALF OF THE PETITIONERS^1

WRITTEN SUBMISSIONS

I. THE PRESENT PIL IS MAINTAINABLE.

The sole object of Article 32 is the enforcement of the fundamental rights guaranteed by the Constitution. The SC has jurisdiction to enforce the fundamental rights against private bodies and individuals and award compensation for violation of the fundamental rights. It can exercise its jurisdiction suo moto or on the basis of PIL.^2 A person whose fundamental rights has been violated has the remedy of approaching the Supreme Court by way of a writ petition filed under Article 32 as:

[i] A precondition for its applicability arises that there has been a violation of fundamental rights and thus the locus standi sustains. [ii] The present petition is maintainable under Article 32 of the Constitution^3 as it seeks to protect the fundamental rights of public at large by way of Public Interest Litigation. [iii] And also under the purview of Art 13(2) of the Constitution^4 any law made by the state which takes away or abridges the rights conferred and any law made in contravention of this shall be void. [iv] “ Locus standi ” is the right of a party to appear and be heard on the question before any tribunal.^5 And it states the legal capacity to invoke the jurisdiction of the court. When a person acquires a locus standi , he has to have a personal or individual right which was

(^2) Bodhistatawa Gautam v. Subhra Chankraborty, AIR 1996 SC 922. (^3) INDIA CONST. (^4) Id. (^5) WHARTON, LAW LEXICON, 1019, (15TH (^) ed. 2009).

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MEMORANDUM ON BEHALF OF THE PETITIONERS^2

violated or threatened to be violated.^6 And in the present case the fundamental rights of the petitioners are being violated by the actions of the respondents. In Maneka Gandhi v. Union of India^7 the Supreme Court observed that “Fundamental rights…weave a ‘pattern of guarantee’ on the basic structure of human rights, and impose negative obligations on the State not to encroach on individual liberty in its various dimensions.” It was held in S. P. Gupta v. Union of India, "where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitution- al or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened, and any such person or determinate class of persons is by reason of poverty or disability or socially or economically disadvantaged position unable to approach the court for relief, any member of the public or social action group can maintain an application for an appropriate direction, order or writ or in case of breach of any fundamental right of such person or class of persons, in the Court under Article 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons."^8 If the Court were powerless to issue any direction, order or writ in cases where a fundamental right has already been violated, Article 32 would be robbed of all its efficacy, because then the situation would be that if a fundamental right is threatened to be violated, the Court can injunct such violation but if the violator is quick enough to take action infringing the fundamental right, he would escape from the net of Article 32.^9

(^6) Calcutta Gas Co. Ltd. v. State of West Bengal, AIR 1962 SC 1044. (^7) AIR 1978 SC 597, pg. 617. (^8) S P. Gupta v. Union of India, (1981) Supp. SCC 87. (^9) M.C. Mehta & Anr. v. Union of India & Ors, 1987 AIR 1086, 1987 SCR (1) 819.

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MEMORANDUM ON BEHALF OF THE PETITIONERS^3

[i] That the PIL filed by the petitioners is maintainable. A PIL can be filed against the State for the violation of Fundamental rights^10 under Article 32 of the Constitution; therefore, the petition here is maintainable. The right to approach this Hon’ble Court in case of violation or threat to Fundamental Rights is itself a Fundamental Right enshrined in Art 32^11 and is not merely a discretionary power of the Court. It is an absolute right.^12 Public Interest Litigation is part of the process of participate justice and standing in civil litigation of that pattern must have liberal reception at the judicial door steps (^13) and it is not necessary for the petitioner to wait till the actual threat has taken place. (^14) A

person acting bona fide and having sufficient interest in maintaining action for judicial redress for public injury to put the judicial machinery in motion^15 and such a person will have locus standi.^16 In the case in hand since Wasim is acting as the pro bono publico,^17 thus the petition is maintainable. It is very crucial that the law that is made, must be of general public importance and hence perform functions for public welfare, herein, Public Function is one which “seeks to achieve some collective benefit for the public or a section of the public.”^18 Institutions engaged in performing public functions are, by virtue of the functions performed, government agencies.^19 Further under the well-established doctrine of Parens Patriae, it is (^10) Sukhdev & Ors v. Bhagat Ram & Ors. AIR 1975 SC 1331. (^11) Kochhuni v. State of Maharashtra, AIR 1959 SC 725. (^12) Prem Chand Garg v. Excise Commissioner, AIR 1963 SC 996. (^13) Fertilizer Corporation Kamgar Union v. Union of India, AIR 1981 SC 344. (^14) D.A.V. College v. State of Punjab, (1971) 2 SCC 261. (^15) Janta Dal v. H. S. Chowdhary, AIR 1993 SC 892. (^16) Dattaraj Nathuji Thaware v. State of Maharashtra, AIR 2005 SC 540. (^17) Moot proposition, para 6. (^18) Binny Ltd. & Anr. v. Sadasivan & Ors. AIR 2005 SC 320. (^19) Sukhdev & Ors v. Bhagatram & Ors AIR 1975 SC 1331.

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MEMORANDUM ON BEHALF OF THE PETITIONERS^4

the obligation of the State to protect and take into custody the rights and the privileges of its citizens for discharging its obligations.^20 And also, a duty is enjoined upon the Hon’ble Court to exercise its power by setting right the illegality in the judgments is well-settled that illegality must not be allowed to be perpetrated and failure by the High Court to interfere with the same would amount to allowing the illegality to be perpetuated^21 , It has been held in plethora of cases that when the question of law of general public importance arises, the jurisdiction of High Court can be invoked. In the present case, the issue involves matter of General Public Importance and hence, entitled to be maintainable. It is humbly submitted that the expression “substantial question of law”^22 is not defined in any legislation. Nevertheless, it has acquired a definite connotation through various judicial pronouncements. A Constitution Bench of the Apex Court, while explaining the import of the said expression, observed that “The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views.”^23 [iii] It is submitted before the Hon’ble Court that the petition challenging the Constitutional validity of the Triple Talaq (Criminalization) Act, 2018 is maintainable before the Court. The petitioner has approached the Supreme Court under Art. 32 read with Art 13(2) of the Constitution of India. Art. 13(2) declares that the ‘State shall not make any law’ which takes (^20) Charan Lal Sahu v. Union of India, AIR 1990 SC 1480. (^21) Pawan Kumar v. State of Haryana, (2003) 11 SCC 241. (^22) Dale & Carrington Investment Ltd. v. P.K. Prathapan, (2005) 1 SCC 212. (^23) Chunnilal Mehta v. Century Spinning & M Co. Ltd., AIR 1962 SC 1314.

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MEMORANDUM ON BEHALF OF THE PETITIONERS^5

away or abridges the Fundamental Rights. Thus, the power of the legislature is limited by Fundamental Rights of the citizens^24. Moreover, the petitioner need not establish either that he has no other adequate remedy or that he has exhausted all other remedies provided by law, as Art. 32 is a Fundamental Right in itself and therefore existence of an alternate remedy is no bar to the Supreme Court entertaining a petition under it.^25 Also when a breach of fundamental right is made in the petition there the provisions of other remedies do not stand in the way of exercising power under Art 32 of the Constitution of India. It was held in the case of Coffee Board v. Jt. Commercial Tax Officer^26 that It is wholly erroneous to assume that before the jurisdiction of the Supreme Court could be invoked the applicant must either establish that he has no other remedy adequate or otherwise or that he has exhausted such remedies as the law affords and has yet not obtained proper redress, for when once it is proved to the satisfaction of the Supreme Court that by state action the fundamental right of a petitioner under Art. 32 has been infringed, it is not only the right but also the duty of the Supreme Court to afford him by passing appropriate order in that behalf.^27 Therefore, Articles 32 and 13(2) read together, along with the fact that the said Act is violative of Fundamental Rights^28 and basic feature of the Constitution make the case maintainable. And submitting hereby as it was mentioned in the case of Lily Thomas v. Union of India where also the question of law was raised, and was submitted, “Justice is a virtue which

(^24) Brij Mohan Lal v. Union of India, (2012) 6 SCC 571. (^25) Daryao v. State of Uttar Pradesh, 1962 SCR (1) 574. (^26) AIR 1971 SC 870. (^27) Kharak Singh v. State of U.P., AIR 1963 SC 1295. (^28) Moot proposition, para 6.

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MEMORANDUM ON BEHALF OF THE PETITIONERS^6

transcends all barriers and rules of procedure. Technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice”.^29 II. THE TRIPLE TALAQ (CRIMINALIZATION) ACT, 2018 IS CONSTITUTIONALLY INVALID. The Triple Talaq (Criminalization) Act, 2018 passed by the parliament criminalizes the pronouncement of instant triple talaq and inter alia provided that a Muslim husband who pronounces instant triple talaq shall be liable to be punished with a minimum imprisonment of 2 years and maximum of 7 years apart from paying compensation to his Muslim wife.^30 The Act passed is unconstitutional and unreasonable as it violates the fundamental rights of Muslims.

[i] Muslim Personal law does not come under the purview of Article 13 of the Constitution:-

The basic norm contained in Article 13(2)^31 is that any ‘law’ inconsistent with a fundamental right is void. And, according to Article 13(3), (a)“law” includes any Ordinance, order, bye- law, rule, regulation, notification, custom or usage, having in the territory of India the force of law; (b)“laws in force” includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas. A law which is included under Art. 13^32 can be challenged if the law infringes the fundamental right of any person.

(^29) Lily Thomas v. Union of India, AIR 2000 SC 1650. (^30) Moot proposition, para 5. (^31) INDIA CONST. art. 13, cl. 2. (^32) INDIA CONST. art 13.

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MEMORANDUM ON BEHALF OF THE PETITIONERS^7

In the judgment authored by M.C. Chagla, CJ, and Gajendragadkar, J. (as he then was), recorded that the distinction is recognized by the Legislature and would be clear if one looks to the language of S. 112, Government of India Act, 1915. “Therefore, a clear distinction is drawn between personal law and custom having the force of law.”^33 A “law” in Art. 13 have expressly has been used only the expression “custom or usage” and have omitted personal law. And, hence these uncodified Muslim personal laws may not be scrutinized for fundamental rights violations as the “personal laws” are neither “laws” for this purpose, nor “laws in force”.^34

Also, there is a distinction between law, as created by the state or its agencies through acts of legislation on the one hand, and “personal law”, which had its source in the scriptures, and in non-state bodies for interpretation and enforcement, on the other.^35

In P.E. Mathew v. Union of India^36 , the court ruled that personal laws are outside the scope of art 13(1) as they are not laws as defined in Article 13(3)(b).^37

Also, being triple talaq a form of divorce practiced by Muslims under Muslim Personal law should not be scrutinized for fundamental rights according to Art 13 as it does not comes under the purview of this article and the legislature should not make a law on this. Hence, the Triple Talaq (Criminalization) Act, 2018 is constitutionally void.

[ii] The Act passed is unjustified for being the ex-post facto law under Art. 20:- (^33) State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84. (^34) Ram Prasad v. State of Andhra Pradesh, AIR 1957 All 411. (^35) Gautam Bhatia, The Triple Talaq and The Constitution , THE HINDU (May 11, 2017, 03:35) http://www.thehindu.com/todays-paper/tp-opinion/triple-talaq-and-the-constitution/article18421721.ece. (^36) AIR 1999 Ker 345. (^37) M.P. JAIN, INDIAN CONSTITUTIONAL LAW, 868 (7th (^) ed. 2014).

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Art. 20(1) states that “No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.” Article 20(1) of the Indian constitution provides necessary protection against ex post facto law. This Article has two parts.

Under the first part, no person can be convicted of an offence except for violating ‘a law in force’ at the time of the commission of the of the act charged as an offence. A person is to be convicted for violating a law in force when the act charged is committed.^38 A law enacted later, making an act done earlier (not an offence when done) as an offence, will not make the person liable for being convicted under it.^39 The second part of Art. 20(1) immunizes a person from a penalty greater than what he might have incurred at the time of his committing the offence.^40 Thus, a person cannot be made to suffer more by an ex-post-facto law than what he would be subjected to at the time he committed the offence.^41

According to the first part, the criminal complaint filed against Wasim is not valid as the triple talaq pronounced by him was in January, 2018 which was much before when the Triple Talaq (Criminalization) Act passed. So, according to Art. 20(1) he should not be made liable for the act which was not an offence at the time of commission of the act.

Secondly, it says that a person should not be subjected to a penalty greater than that which might have been caused to him under the law in force at the time of commission of the offence. (^38) Soni Devrajbhai Babubhai v. State of Gujarat, AIR 1991 SC 2173. (^39) Kanaiyalal v. Indumati, AIR 1958 SC 444. (^40) State of Maharashtra v. K.K. Subramaniam Ramaswamy, AIR 1977 SC 2091. (^41) Wealth Tax Commr. Amritsar v. Suresh Seth, AIR 1981 SC 1106.

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MEMORANDUM ON BEHALF OF THE PETITIONERS^9

If a woman says that she was mentally harassed by the conduct of her husband of pronouncing divorce than she can move to the court under Sec. 498A of IPC which states “Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this section, “cruelty” means—

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman……”^42

A woman can file a criminal complaint against her husband or the relatives of her husband for cruelty for which there is a punishment which may extend to 3 years and may also be held liable for fine.^43

The term cruelty defined includes both physical and mental, to prove that cruelty was caused under Explanation (a) of S.498A IPC it is not important to show or put forth that the woman was beaten up- abusing her verbally, denying her conjugal rights or even not speaking to her properly^44 would fall into the ambit of mental cruelty. Also, the section is available to everyone and not restricted to any particular religion.

And, not only under 498A of IPC but an aggrieved women can also file a complaint under the provisions of the Protection of Women from Domestic Violence Act, 2005 which allows the

(^42) Indian Penal Code, 1860, No. 45, Acts of Parliament, 2017, Sec. 498A. (^43) L.V. Jadhav v. Shankarrao Abasaheb Pawar, AIR 1983 SC 1219. (^44) Ramesh Dalaji Godad v. State of Gujarat II (2004) DMC 124.

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MEMORANDUM ON BEHALF OF THE PETITIONERS^10

prosecution of a husband for inflicting physical or mental cruelty, emotional and economic abuse, and for deprivation of financial resources.

Any aggrieved woman can file a complaint under this section and it is quite evident from the cases like Md. Azmal & Ors. v. The State of Bihar^45 , State v. Farooq & Ors.^46 Or State v. Mohd. Hafees^47 where Muslim wives had filed the complaint against their husbands and other family members.

If there is already a penalty and aggrieved ones are also approaching it then, why there was a need to pass a law with such a greater penalty, doing this goes against the ex-post facto law.

[iii] The Act passed violates the freedom of religion of Muslim husbands:-

The term ‘religion’ has not been defined under the Constitution and it is a term which is not susceptible of any precise definition.

The Supreme Court observed “Religion is the belief which binds spiritual nature of men to super-natural being. It includes worship, belief, faith, devotion etc, and extends to rituals. Religious right is the right of a person believing in a particular faith to practice it, preach it, and profess it.”^48

Art. 25 provides every citizen the right to freedom of religion. It states “(1) Subject to public order, morality, and health and to the other provisions of this Part, all persons are equally

(^45) Md. Azmal & Ors. v. The State of Bihar, AIR 2010. (^46) State v. Farooq & Ors, (2002) 4 SCC 697. (^47) 1960 AIR 669. (^48) P.M.A. Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001.

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entitled, to freedom of conscience and the right freely to profess, practice and propagate religion”^49.

In order that a practice should be treated as a part of religion, it is necessary that it be regarded by the said religion as essential and integral part this means that purely secular practices which may not be an essential part of a religion are not protected and can be abrogated by legislation subject to other Fundamental Rights.^50

But, in Shayara Bano Case^51 , Justice S Abdul Nazeer stated that ‘ talaq-e-biddat ’, is a matter of personal law of the Sunni Muslims, belonging to the Hanafi School and it constitutes a matter of their faith. It has been practiced by them, for at least 1400 years. It was examined whether the practice satisfies the constraints provided for under Art. 25 of the Constitution, and arrived at the conclusion that the practice being a component of ‘personal law’ has the protection of Article 25 of the Constitution.” 52

And since Muslim Personal Law is protected under the article and triple talaq being an integral part of Muslim Personal Law, a law cannot be enacted upon by the legislature regarding this, specially by criminalizing it as it would violate the fundamental right i.e. right to freedom of religion of the Muslim husbands.

III. THE INITIATION OF CRIMINAL PROCEEDINGS AGAINST THE PETITIONER IS LEGALLY UNTENABLE.

(^49) INDIA CONST. art. 25, cl 1. (^50) M.P.JAIN, INDIAN CONSTITUTIONAL LAW, 1248 para 4 (7th (^) ed. 2014). (^51) Shayara Bano v. Union of India & Ors., 2017 9 SCC 1. (^52) Id. Para 192.

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Muslim marriage is a contract and a breach of contract is a civil matter because a private individual is harmed. Also, the marriages and divorces are civil matters and are heard by the civil or family courts. Triple talaq is a form of divorce which is practiced by Muslim husbands in Hanafi School of Thought.^53

Now, the question arises is that can a civil matter be criminalized and can such a severe punishment be given to a form of divorce?

A ‘crime’ is ‘an act or omission prohibited and punished by law. ’^54

Criminal sanction is the most coercive method of regulating an individual’s behaviour which a state may deploy. But few in India understands that criminal law’s promise as an instrument of safety is matched only by its power to destroy. Nowhere in the entire legal field is more at stake for the community or for the individual. Therefore, the Act passed by the parliament needs closer scrutiny on the touchstone of the first principles of criminal law.

A crime is a violation of a general legal right which, if not controlled, will endanger peace and stability of society and therefore it is the state which prosecutes the accused and punishes the convict on behalf of entire society. The most universally assumed aim of the criminal law is averting harm. But every harm cannot become ‘crime’. The harm needs to be real, unavoidable and serious and thus human behaviour which is merely offensive cannot be necessarily declared as ‘criminal act.’ Thus all harmful acts may not be ‘crimes’. Criminal

(^53) AQIL AHMED, MOHAMMEDAN LAW, 169 (26th (^) ed. 2016). (^54) K D GAUR, TEXTBOOK on INDIAN PENAL CODE, 2 (6th (^) ed. 2016).

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law therefore, is to be used as a last resort for the more reprehensible wrongful acts. Triple talaq which does not dissolve marriage is not such a harm which can be declared as a crime.^55

In Shayara Bano v. Union of India,^56 the Supreme Court has ‘set aside’ the practice of triple talaq. And now if a Muslim man utters the word ‘ talaq ’ three times or a million times, it will have no legal effect and the marriage would remain intact which is also the law of the land^57 , under Art. 141^58. Certainly, the woman in question will be deeply disturbed. But she retains all her legal rights and remedies.

The Act further states that the utterance of talaq, talaq, talaq is a criminal offence, punishable by up to seven years in prison apart from compensation that remains undetermined. This is important, for saying something that has no legal effect, the offending man would have to go to jail.

Further, it is stated that out of 4,710 people 525 divorce took place and only one of them was by SMS. And, nearly 41% of women among them wanted divorce.^59 If a woman herself wants a divorce and husband gives, it is a mutual agreement. It is a divorce by consent known as Talaq-e-Mubarra.^60 If there arises a different situation, then triple talaq might sound bad

(^55) Faizan Mustafa, Why Criminalising Triple Talaq is Unnecessary Overkill, THE WIRE, (Dec 15, 2017, 15:33) https://thewire.in/gender/why-criminalising-triple-talaq-is-unnecessary-overkill. (^56) Supra note 52. (^57) A. Faizur Rahman, The Trouble with the Triple Talaq Bill , THE HINDU (Dec 28, 2017, 15:09) http://www.thehindu.com/opinion/op-ed/a-very-flawed-law/article22288659.ece. (^58) Supra note 3. (^59) Faizan Mustafa, Judicial Aberrations on Gender Issues are Worrisome, THE WIRE (Mar 8, 2018, 12:00) https://thewire.in/women/is-the-indian-judiciary-going-back-on-gender-justice. (^60) AQIL AHMED, MOHAMMEDAN LAW, 186 (26th (^) ed. 2016).