IN THE HONBLE SUPREME COURT OF INDIA

Aabida
(Appellant)

Vs

Aashfaq Khan
(Defandant)

- MEMORIAL ON BEHALF OF THE DEFENDANT -

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TABLE OF CONTENTS

INDEX OF AUTHORITIES .......................................................................................................... III

STATEMENT OF JURISDICTION ..................................................................................................... V

STATEMENT OF FACTS ............................................................................................................ VI

STATEMENT OF ISSUES ........................................................................................................... VII

SUMMARY OF ARGUMENTS ...................................................................................................... 1

ARGUMENTS ADVANCED ......................................................................................................... .3

I. THAT THE APPEAL TO THE SUPREME COURT UNDER ARTICLE 136 OF THE

CONSITUTION OF INDIA IS NOT MAINTAINABLE.

II. THAT AABIDA IS NOT ENTITLED TO CLAIM MAINTENANCE BEYOND THE IDDAT

PERIOD

PRAYER FOR RELIEF ................................................................................................................ 6

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DEFENDANT
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INDEX OF AUTHORITIES

LIST OF CASES

Abdul Rashid v. Mst. Farida 1994 MPLJ 583 :(1994 Cri LJ 2336)

Chandra Bansi Singh V. State of Bihar, ((1984) 4 SCC 103), (AIR 1984 SC

1572)

Danial Latifi and another v. Union of India (2001) 7 SCC 740

Iqbal Bano v. State of U.P. (2007) 6 SCC 785

Municipal Board, Pratapgarh V. Mahendra Singh, ((1982) 3 SCC 331), (AIR

1982 SC 1493);

Pritam Singh case AIR 1950 SC 169, 172

Sanwat singh V. State of Rajasthan, (AIR 1961 SC 715), ((1961) 3 SCR 120)

Shaik Dada Saheb vs Shaik Mastan Bee And Anr. AIR (2002) SC 147

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DEFENDANT
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LIST OF BOOKS

THE FAMILY LAWS IN INDIA , K.B AGGARWAL 24TH ED.2012

POONAM PRADHAN SAXENA, FAMILY LAW LECTURES - FAMILY LAW II, 3RD ED., 2011

HALSBURY'S LAWS OF INDIA, FAMILY LAW I, VOL.- 19, 2014, LEXIS NEXIS

LIST OF STATUTES

CODE OF CIVIL PROCEDURE, 1908

THE CONSTITUTION OF INDIA , 1949

THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986

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DEFENDANT
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STATEMENT OF JURISDICTION

THE RESPONDENT DOES NOT SUBMIT TO THE JURISDICTION OF THE HONBLE

SUPREME COURT OF INDIA UNDER ARTICLE 136 OF THE INDIAN CONSTITUTION.

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DEFENDANT
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STATEMENT OF FACTS

Mr Mr. Ashfaq Khan, aged 29 years working as Deputy Manager in a Commercial Bank at

Chandigarh, fell in love with Miss Aarti Sharma, aged 27 years. They desired to get married. But

the proposal of marriage was not acceptable to the parents of Ashfaq Khan, as the girl was a

Hindu. In order to solemnize the marriage with Ashfaq Khan, Aarti converted to Islam and

changed her name as Aabida. Their marriage was solemnized as per Muslim personal law on 14th

February 2014.

However, after the marriage, Mr Ashfaq began to ill-treat her and started demanding a huge

amount of dowry from Aabidas parents. Ashfaqs parents also joined hands with him to ill treat

Aabida. Finally, Mr. Ashfaq on 1st October 2014 left Aabida at her parents home for want of

dowry, knowing pretty well that she is pregnant.

On 15th March 2015, Aabida gave birth to a female child at her home. The birth of the child was

communicated to Ashfaq. But Ashfaq refused to receive the child and Aabida as his desire for

dowry was not satisfied by her parents owing to the poor financial position.

Aabida filed a petition for maintenance for herself and her child under Section 125 Cr.P.C in the

Family Court of Chandigarh on 1st May 2015. She claimed maintenance of Rs. 25,000/- per

month as her husband Mr. Ashfaq is earning a salary of Rs. 50,000/- per month. The respondent,

Mr ashfaq denied all the allegations and asserted that she has been living with her parents on her

own free will and thus deserted him since 1st October 2014.

While the maintenance petition was pending before the family court, Mr. Ashfaq pronounced the

irrevocable talaq as per the provisions of the Muslim law on 15th august 2015 to dissolve the

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DEFENDANT
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marriage with Aabida. Mr. Ashfaq contended that under the provisions of the Muslim Women

(Protection of Rights on Divorce) Act 1968, he is no more liable to pay any maintenance to

Aabida and her child after the talaq.

However, the Family Court directed the respondent to pay Rs. 12,500 per month towards

maintenance to Aabida and her child from the date of the petition, till the completion of the

Iddat period.

Aabida, aggrieved by the decision of the Family Court preferred an appeal to the Punjab and

Haryana High Court, claiming maintenance beyond the Iddat period. The Punjab and Haryana

High Court also confirmed the decision of the Family Court. Therefore, Aabida preffered an

appeal to the Supreme court with Special Leave of the Apex Court, under Article 136 of the

Constitution of India, challenging the decision of the Punjab and Haryana High Court.

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DEFENDANT
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STATEMENT OF ISSUES
I. WHETHER THE APPEAL TO THE SUPREME COURT UNDER ARTICLE 136 OF THE
CONSITUTION OF INDIA IS MAINTAINABLE OR NOT?

II. WHETHER AABIDA IS ENTITLED TO CLAIM MAINTENANCE BEYOND THE IDDAT

PERIOD?

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DEFENDANT
 SUMMARY OF ARGUMENTS
I. THAT THE APPEAL TO THE SUPREME COURT UNDER ARTICLE 136 OF THE
CONSITUTION OF INDIA IS NOT MAINTAINABLE

That the decision of the Family Court, Chandigarh and Punjab and Haryana High court was
sustainable and as per law and that there has been no miscarriage of justice. The appeal
brought before the Supreme Court is not maintainable and it should be dismissed at the first
instance.
Article 136 in The Constitution Of India 1949 provides the following :-
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.

II. THAT AABIDA IS NOT ENTITLED TO CLAIM MAINTENANCE BEYOND THE

IDDAT PERIOD

"iddat period" as provided under the The Muslim Women (Protection of Rights on Divorce)
Act, 1986 means, in the case of a divorced woman, -

(i) three menstrual courses after the date of divorce, if she is subject to menstruation ;
(ii) three lunar months after her divorce, if she is not subject to menstruation ; and
(iii) if she is enceinte at the time of her divorce, the period between the divorce and the
delivery of her child or the termination of her pregnancy, whichever is earlier.

The act casts a duty on the husband to provide sufficient means of sustenance to the wife and
the child only up to the iddat period. If the wife is unable to support herself then the husband
will have to provide her maintenance.
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ARGUMENTS ADVANCED
I. CONTENTION 1: THAT THE APPEAL TO THE SUPREME COURT UNDER

ARTICLE 136 OF THE CONSITUTION OF INDIA IS NOT MAINTAINABLE

It is humbly submitted to the Honble Supreme Court of India that the present special leave to

appeal against the order of the Honble Punjab and Haryana High Court is based on vexatious

and speculative grounds, and the same should not be granted. The Honble High Court of Punjab

and Haryana has upheld the decision given by the Family Court at Chandigarh based on the

relevant laws prevailing in India.

1.1 THAT NO QUESTION OF LAW IS INVOLVED IN THE PERTINENT CASE

It is humbly submitted before the Honble Court that the observations of Supreme Court in

Pritam Singh case1 are: Special leave will not be granted unless it is shown that exceptional and

special circumstances exist, that substantial and grave injustice has been done and that the case in

question presents features of sufficient gravity to warrant a review of the decision appealed

against.

According to Section 96 of the Civil Procedure Code, 1908 2, no appeal shall lie unless there is a

1
AIR 1950 SC 169, 172
2
Section 96 of the CPC 1908- Appeal from original decree: (1) Save where otherwise expressly provided in the
body of this code or by any other law for the time being in force, an appeal shall lie from every decree passed by any
court exercising original jurisdiction the court authorized to hear appeals from the decisions of such court. (2) An
appeal may lie from an original decree passed ex pane. (3) No appeal shall lie from a decree passed by the court with
the consent of parties. [(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature
cognizable by courts of small cause, when the amount or value of the subject-matter of the original suit does not
exceed.

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DEFENDANT
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question of law involved in the case. Section 99 of CPC, 19083 states that a decree cannot be

modified for an error or irregularity not affecting the merits of the case or the jurisdiction. In the

exercise of its jurisdiction under Article 1364 of the Constitution of India the Court may not

interfere with the order of the High Court on equitable grounds even though it finds the decision

indefensible.5 Therefore, the Honble Supreme Court is requested not to base its decision on the

principle of equity. It is humbly submitted that in the instant case, no question of law is involved

as the decision of the High Court of Punjab and Haryana High Court was given after accounting

for the Muslim laws, codified and uncodified.

The Muslim Women (Protection of Rights on Divorce) Act, 1986 casts a duty on the husband to

maintain the wife only till the end of the iddat period and the same has been awarded by the

Punjab and Haryana High Court. Thus there is no question of law that is involved in the pertinent

case.

1.2 THAT THERE WAS NO MISCARRIAGE OF JUSTICE AGAINST AABIDA.

Decided cases establish that the Supreme Court will grant special leave to appeal in exceptional

cases where grave and substantial injustice has been done by disregard to the forms of legal

3
Section 99 of the CPC 1908- No decree to be reversed or modified for error or irregularity not affecting merits or
jurisdiction: No decree shall be reversed or substantially varied, nor shall any case be remanded in appeal on
account of any misjoinder [or non-joinder] of parties or causes of action or any error, defect or irregularity in any
proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court
4
Article 136 of the Constitution of India- 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
5
Municipal Board, Pratapgarh V. Mahendra Singh, ((1982) 3 SCC 331), (AIR 1982 SC 1493); Chandra Bansi Singh
V. State of Bihar, ((1984) 4 SCC 103), (AIR 1984 SC 1572)

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DEFENDANT
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process or violation of the principles of natural justice.6 In the pertinent case, there are no

exceptional circumstances and no injustice towards Aabida has been carried out: Miscarriage of

justice implies returning an unfair verdict based on the evidence presented as a legal justice

failure.7

It is humbly submitted before the Honble Court that the decision of the Punjab and Haryana

High Court is in consonance with the The Muslim Women (Protection of Rights on Divorce)

Act, 1986. Proceedings under section 125 Cr.P.C are civil in nature. Even if the Court noticed

that there was a divorced muslim woman who had made an application under Section 125

Cr.P.C, it was open to the court to treat the same as a petition under the 1986 act considering the

beneficial nature of the legislation, especially since proceedings under section 125 Cr.P.C and

claims made under the muslim women act are tried by the same court.8 Section 3 (1)(a)9 provides

for the maintenance of a divorced wife till the period of iddat if she is unable to maintain herself

and for a period of two years from the date of birth of the child. The female child was born on

15th August 2015 and it is pertinent to note that the Ashfaq is only responsible for maintaining

the child if Aabida is unable to do so.

6
Sanwat singh V. State of Rajasthan, (AIR 1961 SC 715), ((1961) 3 SCR 120)
7
BLACKS LAW LEXICON, Ed. 9th
8
Iqbal Bano v. State of U.P. (2007) 6 SCC 785
9
Section 3 - Mahr or other properties of Muslim woman to be given to her at the time of divorce
(1) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be
entitled to-
(a) a reasonable and fair provision and maintenance to be made and paid to her within theiddat period by her former
husband;
(b) where she herself maintains the children born to her before or after her divorce, a reasonable and fair provision
and maintenance to be made and paid by her former husband for a period of two years from the respective dates of
birth of such children;

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DEFENDANT
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II. THAT AABIDA IS NOT ENTITLED TO CLAIM MAINTENANCE BEYOND THE

IDDAT PERIOD

It is humbly submitted before the hon,ble Court that Section 3 provides for the Mahr or other

properties of muslim woman to be given at the time of divorce, it states that the husband has an

obligation to pay fair and reasonable maintenance to his divcorced wife till the iddat period. If

she is unable to maintain herself after the iddat period, the duty lies with the relatives under

section 4 of the act. The same has been reiterated by the Apex court of India as husband is not

liable to pay any maintenance beyond the period of Iddat. If the divorced woman is unable to

maintain herself even after the period of Iddat then the liability devolves on her relatives who

would inherit her property, as stated in Section 4. 10

The Court further observed that the emphasis of this section is not on the nature or duration of

any such provision or maintenance, but on the time by which an arrangement for payment

of provision and maintenance should be concluded, namely, within the iddat period, and if

the provisions are so read, the Act would exclude from liability for post-iddat period

maintenance to a man who has already discharged his obligations of both reasonable and fair

provision and maintenance by paying these amounts in a lump sum to his wife, in addition

to having paid his wifes mahr and restored her dowry as per Sections 3(1)(c) and 3(1)(d) of

the Act.11

"iddat period"12 means, in the case of a divorced woman, -

(i)three menstrual courses after the date of divorce, if she is subject to menstruation ;

10
Shaik Dada Saheb vs Shaik Mastan Bee And Anr. AIR (2002) SC 147
11
Danial Latifi and another v. Union of India (2001) 7 SCC 740
12
Section 2(b) Muslim Women (Protection of Rights on Divorce) Act, 1986

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DEFENDANT
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(ii)three lunar months after her divorce, if she is not subject to menstruation ; and

(iii)if she is enceinte at the time of her divorce, the period between the divorce and the delivery

of her child or the termination of her pregnancy, whichever is earlier.

Thus the decision of the Punjab and Haryana High Court is in consonance with the law and

Aabida is entitled to maintenance only till the Iddat period. It is humbly submitted before the

Honble Court that Aabida has been living with her parents out of her own free will and that

her parents are maintaining her since then. Thus they have enough financial resources so as to

maintain her. In Abdul Rashid v. Mst. Farida13 it has been held that the moment a muslim wife

is divorced, provisions of the Act would come into play and her application would be governed

by the provisions of the Act for the period after the date of the divorce'. It has also been held in

this case that a muslim husband is liable to maintain his wife during the period of iddat and not

thereafter.

13
1994 MPLJ 583 :(1994 Cri LJ 2336)

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DEFENDANT
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PRAYER

In the light of the issues raised, arguments advanced and authorities cited, the Counsel for the
Complainant humbly pray before this Honble Court to kindly adjudge and declare:

That the appeal to the Supreme Court under Article 136 of the Consitution of India
should be declared not maintainable
That Aabida is not entitled to claim maintenance beyond the iddat period?

And pass any other appropriate order as the court may deem fit.
And for this act of Kindness, the Complainant as in duty bound, shall forever pray.

Respectfully Submitted
Sd/-
Counsel for the Defendant

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DEFENDANT