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

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS

COUNSEL APPEARING ON BEHALF OF THE RESPONDENTS

BEFORE SUBMISSION TO HON‟BLE 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 ---------------------------------------------------------------------04

STATEMENT OF JURISDICTION ---------------------------------------------------07

STATEMENT OF FACTS -------------------------------------------------------------------08

ISSUES RAISED -----------------------------------------------------------------------------10

SUMMARY OF ARGUMENTS ---------------------------------------------------------11

ARGUMENTS ADVANCED ----------------------------------------------------------------------12

I. WHETHER THE FUNDAMENTAL RIGHTS OF ASMA INFRINGED
THROUGH INSTANT TRIPLE TALAQ? 12
1. ASMA HAS NOT FOLLOWED THE PROPER PROCEDURE OF LAW 12
2. A WRIT OF MANDAMUS CANNOT BE DIRECTED IN THE PRESENT
CASE 13
3. INSTANT TRIPLE TALAQ IS NOT VIOLATIVE OF THE
FUNDAMENTAL RIGHTS 13
II. WHETHER THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON
MARRIAGE) SECOND ORDINANCE, 2019 IS VALID IN THE EYES OF
LAW? 13
A. CIRCUMSTANCES EXITED THAT IT WAS NECESSARY TO PASS THE
ORDINANCE 14
B. THE ORDINANCE IS NOT VIOLATIVE TO THE FUNDAMENTAL
RIGHTS AS ENSHRINED IN THE CONSTITUTION 15
C. AN ORDINANCE CANNOT BE CHALLENGED UNDER ARTICLE 136
OF THE CONSTITUTION OF PINDIANA 16

PRAYER ---------------------------------------------------------------------------------------17

WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS Page 2

 TABLE OF ABBREVIATIONS

& And

AIR All India Reporter

Anr. Another

Art. Article

Edn. Edition

Hon’ble Honourable

i.e. That is

S.L.P Special Leave Petition

SCC Supreme Court Cases

v. Versus

Vol. Volume

W.P. Writ Petition

www World Wide Web

WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS Page 3

 INDEX OF AUTHORITIES

A. Table of Cases

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

1 Ahmedabad Women Action Group & Ors. v. Union of India, AIR 13

1997, 3 SCC 573
2 Basheshar Nath v. The Commissioner of Income Tax, Delhi & 14
Rajasthan, AIR 1959 SC 149

3 Engineering Mazdoor Sabha v Hind Cycles Ltd., AIR 1963 SC 874 16

4 Gurudutta VKSSS Maryadit v. State of Maharshtra, AIR 2001 SC 16

1980

5 Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 13

6 Kasturi Lal Lakshmi Reddy v. State of J&K, AIR 1980 SC 1992 14

7 Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1 14

8 Maneka Gandhi v. Union of India, AIR 1978 SC 597 14

9 Saraswati Indusrial Syndicate Ltd. V. Union of India, AIR 1975 SC 46 13

10 Sharma Transport v. Govt. of A.P., AIR 2002 SC 322 14

11 Shayara Bano v. Union of India, 2017 (9) SCC 1 14

12 Union of India v T.R. Verma, AIR 1957 SC 882 12

WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS Page 4

 B. Treatises, Books, Reports And Digests

1 MULLA, Principles of Mahomedan Law (Lexis Nexis-Butterworths 19th edn, 15th

reprint, New Delhi, 2007)

2 D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, Y.V.

Chandrachud & S.S. Subbramani & V.R. Manohar & B.P. Banerjee eds., 8th
ed. 2012

C. Journals Referred

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)

WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS Page 5

 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 The Constitution Of India, 1949

WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS Page 6

 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.”

WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS Page 7

 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.

WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS Page 8

 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.

WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS Page 9

 ISSUES RAISED

I. WHETHER THE FUNDAMENTAL RIGHTS OF ASMA INFRINGED

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

WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS Page 10

 SUMMARY OF ARGUMENTS

ISSUE I. WHETHER THE FUNDAMENTAL RIGHTS OF ASMA INFRINGED

THROUGH INSTANT 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 Instant
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 Instant Triple Talaq illegal and provide
penal provisions for the same.

WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS Page 11

 ARGUMENTS ADVANCED

ISSUE I.WHETHER THE FUNDAMENTAL RIGHTS OF ASMA INFRINGED

THROUGH INSTANT 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 Instant Triple
Talaq is declared unconstitutional by the High Court of Chind, Mukhtar has not abided by it,
pronounced Instant 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 "instant 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 instant Triple Talaq unconstitutional. Thus the
petitioner by seeking the Hon‟ble court to declare the act of instant 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. Verma1 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 instant Triple Talaq. However the
petitioner does not come under the purview of the ordinance because it does not have

1
AIR 1957 SC 882
WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS Page 12
“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 instant Triple Talaq unconstitutional, a legislative action in
the form of Ordinance making instant Triple Talaq illegal and a criminal offence thus
empowering executive to take action on breach.
3. INSTANT TRIPLE TALAQ IS NOT VIOLATIVE OF THE FUNDAMENTAL RIGHTS
It is submitted that the act of instant 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.
ISSUE 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 instant Triple Talaq
illegal. In the present case Mukhtar has approached this court through SLP and challenged
the validity of 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:

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
WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS Page 13
 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 Shayara Bano
(supra), there was no surviving action, let alone “immediate action” warranted to reiteratively
abolish the practice and penalize Instant Triple Talaq by way of an Ordinance under Article
123.

The intent behind the ordinance is abolition of instant 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‟.
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
WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS Page 14
 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 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 Instant 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 instant 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
instant 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
It is submitted that the practice of instant 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

12
Shayara Bano v. Union of India & Others. 2017 (9) SCC 1
WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS Page 15
 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 Maharshtra14 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
WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS Page 16
 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. The Fundamental Rights of Asma are not violated and hence her petition is liable
to be dismissed

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 Respondents shall as
duty bound ever pray.

Sd/- _______________________

Counsels for the Respondents.

WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS Page 17