Moot Memorial on behalf of Respondent, Assignments of Mock Trial and Moot Court

Download Moot Memorial on behalf of Respondent and more Assignments Mock Trial and Moot Court in PDF only on Docsity! 1 KOPAL KHANNA III YEAR LLB 5 TH SEMESTER BEFORE THE HONORABLE SUPREME COURT OF HINDIA ORIGINAL WRIT JURISDICTION W.P. No.__________ of 2020 UNDER ARTICLE 32 OF THE CONSTITUTION OF HINDIA IN THE MATTER OF SINDHU & ORS …PETITIONER VERSUS. UNION OF INDIA …RESPONDENT UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE OF HINDIA MEMORANDUM ON BEHALF OF THE RESPONDENT COUNSEL APPEARING ON BEHALF OF RESPONDENT BALAJI LAW COLLEGE, PUNE 2 TABLE OF CONTENTS CONTENTS PAGE NO. 1. LIST OF ABBREVIATIONS 3 2. INDEX OF AUTHORITIES 4-5 3. STATEMENT OF JURISDICTION 6 4. STATEMENT OF FACTS 7-9 5. STATEMENT OF ISSUES 10 6. SUMMARY OF ARGUMENTS 11-14 7. ARGUMENTS ADVANCED 15-23 8. PRAYER 24 5 3. Indian Law Reporter 4. Nayantara Ravichandran, Legal Recognition of Same sex Relationships in India, (Vol:5) 5. Martha C. Nussbam, Disgust or Equality? Sexual Orientation and Indian Law (Vol:6) 6. John Finnis, Law of morality and sexual orientation 7. Ruth Vanita, Homosexuality and Hinduism, Gay and Lesbian Vaishnava Association,  Database Referred: 1. www.scconline.com 2. www.manupatra.com 3. www.indiankanoon.org 4. www.livelaw.com 5. www.casemine.com 6 JURISDICTION The Hon’ble 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. 3. Without prejudice to the powers conferred on the Supreme Court by clause (1) & (2), Parliament may by law empower any court to exercise within the local limits of its Jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2). 4. The Rights guaranteed by this article shall not be suspended except as otherwise provided by this Constitution.” 7 STATEMENT OF FACTS Background of the Case: 1. Sindhu and Savita both are transgender, age 35 years old and work in different corners of Humbai. Both live in Handra with other transgender in a remote part and manage their livelihood with meagre salaries. 2. Savita underwent sex re-assignment surgery at the age of 20 year. Whereas Sindhu was male but identifies as a woman. 3. Sindhu was abandoned by her parents when she was 11-year-old. Savita ran away from home, unable to understand her sexuality and being traumatized by the constant discrimination faced by her family and friends due to her effeminate behavior and the pressure of conformity to masculine identity. Although she was a bright student, she was stopped from schooling after 8 th Std. 4. Sindhu and Savita both found a safe refuge after meeting, Sakkhi a renowned transgender in Handra. Sakkhi asked them to stay with her and helped them by providing jobs using her contacts. 5. Since that accidental meeting Sindhu and Savita live with 20 other transgender community for last 10 years. A group called ‘Trans-Welfare ‘worked for the betterment of this community and made endeavors for the same. 6. Sindhu and Savita fell in love with each other and over a period visited cinema halls, malls and sometimes even went on a vacation after saving some money. They did this silently without informing anybody. They even made plans to live together and raise a child. 10 STATEMENTS OF ISSUES The Respondent respectfully is here to reply before the Hon’ble Supreme Court of Hindia, the following queries raised: 1. Does Marriage under Hindu Marriage Act, 1955 entitle a marriage only between a man and woman? 2. Does the refusal of marriage between transgenders amount to discrimination based on sexual orientation resulting in violation of Art 14 & Art 21 of the Constitution? 11 SUMMARY OF ARGUMENTS  Does Marriage under Hindu Marriage Act, 1955 entitle a marriage only between a man and woman? It is humbly submitted before the Hon’ble Supreme Court of Hindia that the present Public Interest Litigation filed by the petitioner is not maintainable when substantial justice has been granted by the High Court. According to Section 5 of the Hindu Marriage Act, 1955 : There are five Conditions for a Hindu marriage. A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely: 1. neither party has a spouse living at the time of the marriage;1 2. at the time of the marriage, neither party— a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or c) has been subject to recurrent attacks of insanity; neither party has a spouse living at the time of the marriage; 2 3. the bridegroom has completed the age of [twenty-one years] and the bride, the age of [eighteen years] at the time of the marriage; 4. the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two; 5. the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two; 1 Hindu Marriage Act 1955 12 According to the guidelines given by Supreme Court in different cases, a PIL that is filed for publicity and to gain special attention cannot be maintained in this Hon’ble Court and may be dismissed with exemplary costs. Direction cannot be issued to the union government to formulate laws or to amend the Hindu Marriage Act, 1955 as the court has observed in various cases that judiciary has the 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. The question arises here:  Why should such marriages happen only under the Hindu Marriage Act? One of the first acts of Prime Minister Jawaharlal Nehru after Independence was to clean up Hindu personal law through the Hindu Code Bills, ushering modernity in marriage, succession and other laws. However, he left Muslim personal law untouched.  Why should another set of changes be carried out for just Hindus, Sikhs, Buddhists and Jains leaving out other Indians?  Why can’t the Special Marriage Act of 1954, which applies to people from all faiths, be amended to allow same-sex marriage? As stated the above mention questions, we should soon get a progressive Uniform Civil Code under which LGBTQIA civil unions are solemnized. And before we rush into legalising gay marriage, nuanced issues like child adoptions should be wisely, meticulously debated and thrashed out. The Petitioners i.e Sindhu and Savita; Trans-Welfare community approached the Hon’ble High Court of Humbai, challenging the validity of the decision of the Marriage Registrar and for declaring the marriage to be valid but the High Court of Humbai rejected the plea. Being aggrieved by the decision of Hon’ble High Court of Humbai, the petitioners approached to the 15 “…..only recognizes the private rights but would not extend it to civil rights” And “ ..for marriage it is left to the union government to form when it feels deemed to fit in”. 4. The present case clearly mention that the Hon’ble High Court of Humbai declared the marriage to be invalid because 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.” 5 5. According to Section 5 of the Hindu Marriage Act, 1955 : There are five Conditions for a Hindu marriage. A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely: Further, the Interpretation of section 5 of Hindu Marriage Act 1955 states that the act is capable to have a solemnized marriage of any two Hindus but it is contended, that section 5(3) 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. It also submits that, the word is emphasizes 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” 6 . As Marriage is a “sacrament”, there are other provisions of law that refer to a husband and wife. According to section 498A of IPC states: 5 M/S Grasim Industries Ltd. V. Collector of Customs, Bombay [2003 AIR SC 3397] 6 R.S. Nayak v. A.R. Anutley A.I.R 1984 S.C. 684 (India) 16 “Husband or relative of husband of a woman subjecting her to cruelty.” 7 6. The culture of our country is codified in a statutory laws like prohibited degrees of relationship and sapindra marriages. The conditions under Hindu Marriage Act, 1955 may vary criteria for a man and woman entering into matrimonial alliance. In a same sex marriage who will be the men and women. Thus there were different criteria for man and woman in a marriage. In case of domestic violence in a same sex marriage, who will be the woman for the enforcement of her rights under the Protection of Women from Domestic Violence Act 2005. 7. It is hereby submits that the objection made by Marriage Officer under section 8 of the Hindu Marriage Act 1955 is valid. The compliance of his duty to the statue was performed and no mandamus may be filed to prevent him from doing such duty. The petitioner has no substantial right to compel the performance of that public duty to the Marriage Registrar Officer to refrain from doing that duty. 8. If a civil union model were to be adopted in India, it would be necessary not only to enact a new law governing civil unions but also amend relevant legislations like the Indian Succession Act, 1925, Guardians and Wards Act, 1890, Workmen’s Compensation Act, 1923 and a host of other legislations relating to succession, adoption, pensions etc. so that a partner in a civil union is given the same status as a spouse and considered to be ‘family’. On the other hand, legislation, especially on such an issue in which there is likely to be vociferous opposition, is likely to be delayed. While it cannot be said to interfere with religious freedoms, it could be opposed on the ground that it provides legislative sanction of non-marital live-in relationships, both heterosexual and homosexual, that is contrary to Indian culture. Thus, even on tactical considerations, seeking legislation recognising civil unions does not seem to be the right course. 7 Indian Penal Code, 1860 17 9. In this milieu, the most satisfactory course would be the recognition of same-sex marriages under Indian personal marriage laws. In India, Christians, Muslims and Hindus have different laws in relation to marriage, succession etc. The Hindu Marriage Act that governs Hindus, Sikhs, Jains and Buddhists states that a marriage may be solemnised between any two Hindus. It also specifically provides that the bridegroom should have attained the age of twenty one and the bride eighteen. The Christian Marriage Act provides that the age of the man shall be twenty one and the age of the woman eighteen. Since Muslim marriages are not governed by a statute, there is no statutory definition of ‘marriage’, but they are normally considered to be a contract for the purpose of procreation. Thus, all Indian personal laws appear to envisage marriage as only a heterosexual union. 10. To obtain recognition of the LGBT community as a community of its own that has its own customs and practices. The Arya Samaj and the anti-Brahmin Self-Respect movement in Tamil Nadu formulated their own marriage rituals and practices. While the Arya Samaj drew upon the Hindu scriptures in its marriage ceremony, the Self Respect marriages did not do so. But both these forms of marriages got recognition when the Act was amended in Tamil Nadu by inserting Section 7-A to recognise Self-Respect marriages. The LGBT community could agree on a common marriage practice and seek recognition under the Act. But the difficulty is that members of the LGBT community are governed by different personal laws and follow different customs and practices. Unlike the Arya Samaj is or the followers of the anti-Brahmin movement, they are not united by a desire to bring about specific reforms in Hindu marriage ceremonies. 11. On 8th July, 2019 the Delhi High Court dismissed a PIL seeking direction to the government to from frame family laws for LGBT relationships and form a committee to look into the issue. The plea was filed by Tajinder Singh and the division bench presided by Chief Justice D.N. Patel and Justice C. Harishankar stated that drafting of law was the prerogative of the Legislature. The court further directs that if the government chooses to constitute a LGBT committee they were permitted to do so. The court ruled that same-sex marriage is a matter for the Parliament of India to deal with and not the courts. 20 2. The Orissa High Court ruled in August 2020 that same-sex live-in relationships are recognised under the constitutional right to life and equality. The court held that women in same-sex live-in relationships are protected under the 2005 domestic violence law similarly to different-sex cohabiting couples. 3. The conjugal version of marriage involves both mind and body. The civil union, as two spouses of different sexuality is put together, is the “Procreative significance” this bodily union “can actualize and allow them to experience their real common good, parenthood and friendship” 9 It is denied that, homosexual couples entering into civil unions 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. “Choosing this act of intercourse with my spouse not for the sake of pleasurably actualizing and expressing marital commitment but solely for pleasure” 10 4. There is the impediment of the long-standing decision of the Bombay High Court in State of Bombay v. Narasu Appa Mali 11 , holding that personal laws cannot be tested against the touchstone of Fundamental Rights. It would be possible to contend that traditional Hindu laws did not prescribe same-sex marriages even though the traditional literature of India has many references to same-sex relationships. 12 5. The codified personal laws reflect a more recent trend of prescribing same-sex relationships that emerged in the colonial era, under the influence of Victorian ideals of heterosexuality and monogamy. But even on tendering such logic, it may be difficult to convince courts to interfere in personal laws on grounds of discrimination. 9 John Finnis, Law of morality and sexual orientation. 10 John Finnis, Law of morality and sexual orientation, Page 24. 11 The State of Bombay v. Narasu Appa Mali (1951) 53 Bom LR 779. 12 Ruth Vanita, Homosexuality and Hinduism, Gay and Lesbian Vaishnava Association, 21 6. It is contended that, allowing same sex marriage will contribute to the breakdown of the family unit in society. The end result would be more single parent families and more instability in the lives of children. It is further submitted that, homosexual unions can be classed more or less with polygamy. Although the number of child adoption may increase as a result of the legislation of gay marriage, that is not necessarily a good thing to the society overall as it is recognized that children under straight households is the optimum Environment to raise children. 7. Therefore, same sex marriage would destroy the institution as with the rapidly increasing single parent family and divorce rate over the decade. Same sex marriage has weakened the true meaning of marriage. 8. It is submitted that, supporters for same sex marriage claim that it does not harm to the society, but changing the definition of marriage would lead to a slippery slope to the society. The change in the society would deteriorate the social norms and cultural, same sex marriages weren’t allowed in the country and it was highly opposed by the people. As we forward, the custom still prevails. 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. 9. In 2008, the state of Tamil Nadu recognized the "Third Gender"13 with its civil supplies department giving in the ration card a provision for a new sex column as 'T', distinct from the usual 'M' and 'F' for males and females respectively. This was the first time that authorities anywhere in India have officially recognized the third gender. 10. The Learned Counsel for appellant has submitted that this Court to issue directions for an appropriate amendment in the M.P. Municipal Corporation Act, 1956 so that a person may be debarred from simultaneously holding two elected offices, namely, that of a 13 Recognition of same sex. 22 Member of the Legislative Assembly and also of a Mayor of a Municipal Corporation. Repelling the said submission, the Court held: "In our opinion, this is a matter of policy for the elected representatives of people to decide and no direction in this regard can be issued by the Court. Under our Constitutional scheme Parliament and Legislative Assemblies exercise sovereign power to enact laws and no outside power or authority can issue a direction to enact a particular piece of legislation.” 14 11. In Supreme Court Employees Welfare Association V. Union of India15 it has been held that “No court can direct a legislature to enact a particular law.” Similarly, when an executive authority exercises a legislative power by way of a subordinate legislation pursuant to the delegated authority of a legislature, such an executive authority cannot be asked to enact a law which it has been empowered to do under the delegated legislative authority. 12. It further submitted that, what constitutes social reform is for the legislature to decide the same, as they hold the basic right 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 the state should pursue such as legislature in its wisdom fells it be deemed fit” 16 13. 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 PIL is not maintainable in this Hon’ble Court. “no petition involving individual or personal matter shall be entertained as a PIL matter”. 14 Suresh Seth v. Commr., Indore Municipal Corporation : (2005) 13 SCC 287 (India). 15 Supreme Court Employees Welfare Association V. Union of India (1989) 4 SCC 187 (SCC para 51). 16 The State of Bombay v. Narasu Appa Mali A.I.R. 1952 Bom 84 (India)