KL University Respondent

TC - 000
SHRI. KONERU LAKSHMAIAH MEMORIAL

2ND ALL INDIA MOOT COURT COMPETITION -2019
BEFORE THE HON’BLE SUPREME COURT OF MAGICLAND
SLP.NO____/2019
Mr. SULTHAN
(APPELLANT)
V.
Mrs. SUFIA
(RESPONDENT)
PETITION INVOKED UNDER ART.136 OF

THE CONSTITUTION OF MAGICLAND
UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS LORDSHIP’S

COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF MAGICLAND
MEMORANDUM ON BEHALF OF RESPONDENT
MEMORANDUM OF ARGUMENTS FOR THE PETITIONER

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ALL INDIA MOOT COURT COMPETITION -2019
TABLE OF CONTENTS
LIST OF ABBREVIATIONS....................................................................................................3
INDEX OF AUTHORITIES......................................................................................................4
STATEMENT OF JURISDICTION..........................................................................................6
STATEMENT OF FACTS ........................................................................................................7
STATEMENT OF ISSUES .......................................................................................................9
SUMMARY OF PLEADINGS................................................................................................10
PLEADINGS…………………………………………………………………………………11
1. WHETHER OR NOT THE INSTANT CASE IS MAINTAINABLE BEFORE THIS
HON’BLE SUPREME COURT OF MAGICLAND?.............................................................11
1.1 NO EXCEPTIONAL AND SPECIAL CIRCUMSTANCES EXIST AND
SUBSTANTIAL JUSTICE HAS BEEN DONE IN THE PRESENT CASE………….…….11
1.2 THERE IS NO EXISTENCE OF SUBSTANTIVE QUESTION OF LAW…………….12
1.3 NON-INTERFERENCE IN THE DECISION OF THE LOWER COURTS…………....13
2. WHETHER OR NOT BEGETING OF CHILDREN BY Mr. SULTHAN WOULD
CAUSE MENTAL CRUELTY TO Mrs. SUFIA?...................................................................14
2.1 DOESN’T SATISFYING MARITAL OBLIGATION AMOUNTS TO MENTAL
CRUELTY……………………………………………………………………………………14
2.2 MARRIAGE IS A MATTER OF CIVIL CONTRACT…………………………………14
3. WHETHER OR NOT PERSONAL LAWS CAN BE CHALLENGED ON VIOLATION

OF FUNDAMENTAL RIGHTS?............................................................................................16
3.1 PERSONAL LAWS CAN BE CHALLENGED ON VIOLATION OF FUNDAMENTAL
RIGHTS……………………………………………………………………………………...16
MEMORANDUM ON BEHALF OF RESPONDENT Page 1 of 21

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3.2 THE PRACTISE OF POLYAMY VIOLATES FUNDAMENTAL RIGHTS OF
WOMEN……………………………………………………………………………………..17
3.2.1 PRACTICE OF POLYGAMY INJURES PUBLIC HEALTH AND MORALITY…...18
3.2.2 CONTRAVENES QURANIC VERSUS THAT PERMITS MONOGAMY………….18
PRAYER FOR RELIEF...........................................................................................................20

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LIST OF ABBREVIATIONS
& And
Art. Article
AIHC All India High Court Cases
AIR All India Reporter
AP Andhra Pradesh
Art. Article
Co. Company
Hon’ble Honorable
Ltd. Limited
M.P Madhya Pradesh
No Number
Ors. Others
PIL Public Interest Litigation
Raj. Rajasthan
SC Supreme Court
SCC Supreme Court Cases
SLP Special Leave Petition
U.P Uttar Pradesh
UOI Union of India
v. Versus
i.e) That is
Sec Section

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INDEX OF AUTHORITIES
CASES REFERRED:
 A.V. Papayya Sastry v. Government of Andhra Pradesh, AIR 2007 SC 1546.
 Aero Traders Private Limited v. Ravider Kumar Suri, AIR 2005 SC 15
 Arunalchalam v. Sethuratnam, AIR 1979 SC 1284
 Council of Scientific and Industrial Research v. K. G. S. Bhatt, AIR 1989 SC 1972
 DCM v. Union of India, AIR 1987 SC 2414.
 Dhakeswari Cotton Mills Ltd. v. CIT West Bengal, AIR 1955 SC 65;
 Githa Hariharan v. Reserve Bank of India (1999 2 SCC 228)
 Gurbakhsh Singh v. State of Punjab, AIR 1955 SC 320.
 Itwari vs Smt. Asghari And Ors. AIR 1960 All 684
 John Vallamattom v. Union of India (2003 6 SCC 611)
 Khursheed Ahmad Khan vs State Of U.P.& Ors (2003) 8 SCC 369
 M.C. Mehta v. Union of India, AIR 2004 SC 4618.
 Malabar Industrial Co. Ltd. v. CIT,(2000) 243 ITR 83.
 Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil (1996 8 SCC 525)
 Mathai Joby v. George, (2010) 4 SCC 358.
 Mehar Singh v. Shri Moni Gurudwara Prabandhak Committee, AIR 2000 SC 492
 Mohd. Ahmed Khan Vs. Shah Bano Begum and Ors., (1985) 2 SCC 556
 N. Suriyakala v. A. Mohandoss, (2007) 9 SCC 196.
 Narassu Appa Mali v. State of Bombay AIR 1952 Bom. 84.
 Narpat Singh v. Jaipur Development Authority, (2002) 2 SCC 666.
 Narsingh Pratap Deo v. State of Orissa (AIR 1964 SC 1793)
 Panchanan Misra v. Digambar Mishra, AIR 2005 SC 129.
 Prem Prakash v. Sarla AIR 1989 MP 326
 Rita Nijhawan v. Balkrishan Nijhawan AIR 1973 Del 200
 Samar Ghosh vs Jaya Ghosh (2007) 4 SCC 511.

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 Sarla Mudgal, (President, Kalyani and Ors. Vs. Union of India and Ors. (1995) 3 SCC 635.
 Shayara Bano v. Union of India & Ors (2017) 9 SCC 1
 Shivanand Gaurishankar Baswati v. Laxmi Vishnu Textile Mills, (2008) 13 SCC 323.
 Sinha J., in Mt. Sofia Begum v. Zaheer Hasan, AIR 1947 All 16.
 Smt. Shakuntala Kumari v. Om Prakash Ghai AIR 1981 Del 53
 State of H. P. V. Kailash Chand Mahajan, AIR1992 SC 1277
 Union of India v. Era Educational Trust, AIR 2000 SC 1573.
 Union of India v. Rajeshwari & Co., AIR 1986 SC 1748;
 A v. B. 1996 (1) KLT 275 : 1996 AIHC 1727
 Zahira Habibullah Sheikh v. State of Gujarat, AIR 2004 SC 3467.
BOOKS REFERRED:
 Constitutional Law of India………………………………………...Durga Das Basu.

 Indian Constitutional Law……………………………………….…M.P.Jain.
 Black’s Law Dictionary……………………………….………...…Garner Baryan.
 39 Muslim Law by R.k.Sinha 6th Edition latest Reprint2012, Central Law Agency
 Quran.
LEGAL DATABASES REFERRED:
 www.manuputra.com
 www.indiankanoon.com
 www.scconline.com
 www.westlaw.com
 www.livelaw.in
 www.bloomberg.com
 www.thehindu.com
LEGISLATIONS REFERRED:
 Dissolution of Muslim Marriage Act, 1939

 Constitution of India,1950
 Government of India Act, 1915

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STATEMENT OF JURISDICTION
THE APPELLANT HAVE THE HONOUR TO SUBMIT BEFORE THE HON’BLE

SUPREME COURT OF MAGICLAND, THE MEMORANDUM FOR THE APPELLANT
UNDER ARTICLE 136 (SPECIAL LEAVE PETITION) OF THE CONSTITUTION OF
MAGICLAND, 1950.
THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS AND

ARGUMENTS IN THE PRESENT CASE.

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STATEMENT OF FACTS
MAGICLAND
Magicland is a Sovereign, Secular, Democratic Republic, having its own written

Constitution, which guaranteed some Fundamental Rights to all its citizens. Personal laws
applicable to the citizens varied depending upon the religion to which one belongs. As far as
Muslims are concerned, they are governed by The Muslim Personal Law (Shariat)
Application Act 1937.
MARRIAGE OF Mr. SULTHAN AND Mrs. SADIA
Ms. Sadia and Mr. Sulthan, both Muslims and citizens of Magicland got married in 2003 as
per the customs of the Muslim personal law. Although they are leading a happy married life,
they could not procreate children, despite appropriate medical treatment. Except for this fact,
Mr. Sulthan and his parents looked after Ms. Sadia very well.
SECOND MARRIAGE OF Mr. SULTHAN
However, on the advice of parents, Mr. Sulthan married another lady by name Ms. Sufia in
2010, with the consent of Ms. Sadia. Ms. Sufia was informed in advance that she would be
Mr. Sulthan’s second wife. Ms. Sufia accepted Mr. Sulthan as her husband and their marriage
was performed as per the customs of Muslim personal law.
BIRTH OF A BABY BOY
In 2011, Ms. Sadia conceived, and her pregnancy was confirmed by doctors. Later, Ms. Sadia
gave birth to a baby boy. Mr. Sulthan was happy with the child and he decided not to have
any more children from both the wives. Ms. Sufia was not happy with his decision and she
insisted on having her own baby. But for this fact, Mr. Sulthan was looking after both wives
with same affection.

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PETITION SEEKING DIVORCE IN FAMILY COURT
Ms. Sufia filed a petition in the Family Court in 2015 seeking divorce from Mr. Sulthan,
under section 2(viii)(f) of the Dissolution of the Muslim Marriage Act 1939. Her contention
was that by refusing to have children through her, her husband failed to treat her “equitably in
accordance with the instructions of Quran”. The Family Court refused to grant divorce and
observed that refusing to beget children through her by her husband did not amount to failing
to treat her equitably.
APPEAL MADE BY Ms. SUFIA BEFORE THE HIGH COURT
Ms. Sufia filed an appeal in the High Court and challenged the decision of the Family Court
on the ground that refusal by her husband to beget children through her should be considered
as valid ground for divorce, because it also amounted to mental cruelty. Ms. Sufia has
alternatively pleaded that her second marriage with Mr. Sulthan should be declared as null
and void, as polygamy is unconstitutional under Art 14, 15 and 21 of the Constitution. The
High Court has also accepted her contention that the system of polygamy violated the
Fundamental Rights and therefore declared her marriage as null and void.
CHALLENGING THE DECISION OF HIGH COURT
Mr. Sulthan filed an appeal before the Supreme Court of Magicland. He pleaded that he had
not caused any mental cruelty to his second wife and challenged the decision of the High
Court which declared polygamy as unconstitutional.

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STATEMENT OF ISSUES
ISSUE I.

HON’BLE SUPREME COURT OF MAGICLAND?
ISSUE II.
2. WHETHER OR NOT BEGETTING OF CHILDREN BY Mr. SULTHAN WOULD

CAUSE MENTAL CRUELTY TO Mrs. SUFIA?
ISSUE III.

OF FUNDAMENTAL RIGHTS?

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SUMMARY OF ARGUMENTS

It is humbly submitted that the Special Leave Petition against the judgment of Hon’ble High
Court is not maintainable under Article 136 of the Constitution of Magicland. The Supreme
Court does not interfere with the conclusion arrived at by the High Court if it has taken all the
relevant factors into consideration and there has been no misapplication of the principles of
law. It is contended by the respondent that the appellant must show that exceptional and
special circumstances exists but in this instant case there is no such exceptional and special
circumstances occurs so therefore the instant case is not maintainable.

It is humbly submitted before this Hon’ble Court that Sex plays important role in matrimonial
life and cannot be separated from other factors leading to a successful married life. Therefore,
conduct of husband or wife which renders the continuance of cohabitation and performance
of conjugal duties impossible amounts to such cruelty. So therefore begetting of children by
Mr. Sultan amounts to mental cruelty.
3. WHETHER OR NOT PERSONAL LAWS CAN BE CHALLENGED ON

VIOLATION OF FUNDAMENTAL RIGHTS?
It is humbly submitted before this Hon’ble Court that Art. 25 of the Constitution are not
absolute and, it “subject to public order, morality and health and to the other provisions of
this Part”. The practice of polygamy is injurious to 'public morals', even though some
religions may make it obligatory or desirable for its followers. So therefore Personal laws can
be challenged on violation of fundamental rights.

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PLEADINGs

It is humbly submitted that the Special Leave Petition against the judgment of Hon’ble High
Court is not maintainable under Article 136 of the Constitution of Magicland. Article 136
empowers the Supreme Court to grant in discretion 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.1 It is humbly submitted that SLP is not
maintainable as Special Leave cannot be granted when substantial justice has been done and
no exceptional or special circumstances exist for case to be maintainable.
1.1 NO EXCEPTIONAL AND SPECIAL CIRCUMSTANCES EXIST AND

SUBSTANTIAL JUSTICE HAS BEEN DONE IN THE PRESENT CASE.
It is most humbly submitted before this Hon’ble Court that the SC will not interfere with the
concurrent finding of the courts below unless of course the findings are perverse or vitiated
by error of law or there is gross miscarriage of justice. Article 136 does not confer a Right of
Appeal, but merely, a discretionary power to the Supreme Court to be exercised for satisfying
the demands of justice under exceptional circumstances2 . The SC observed in the Pritam
Singh v. State3, in explaining how the discretion will be exercised generally in granting SLP:
The wide discretionary power with which this court is invested under it is to be exercised
sparingly and in exceptional cases only and as far as possible a more or less uniform standard
should be adopted in granting special leave in the wide range of matters which can come up
before it under article 1364. Circumspection and circumscription must induce the Court to
interfere with the decision under challenge only if the extraordinary flaws or grave injustice
1
Art. 136, Constitution of India, 1950.
2
N. Suriyakala v. A. Mohandoss, (2007) 9 SCC 196.
3
AIR 1950 SC 169.
4
Ibid.

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or other recognized grounds are made out5. Further, it is not possible to define the limitations
on the exercise of the discretionary jurisdiction vested with the SC under Art. 136. But, being
an exceptional and overriding power6, naturally it has to be exercised sparingly with caution
only in special and extraordinary situations7.
It is contended by the respondent that the appellant must show that exceptional and special
circumstances exists and that if there is no interference, substantial and grave injustice will
result and the case has features of sufficient gravity to warrant review of the decision
appealed against on merits. Only then the court would exercise its overriding powers under
Art. 1368. Special leave will not be granted when there is no failure of justice or when
substantial justice is done, though the decision suffers from some legal errors9. Although the
power has been held to be plenary, limitless10 , adjunctive, and unassailable11 , in M. C.
Mehta v. Union of India12 and Aero Traders Private Limited v. Ravinder Kumar Suri13, it was
held that the powers under Article 136 should be exercised with caution and in accordance
with law and set legal principles.
1.2 THERE IS NO EXISTENCE OF SUBSTANTIVE QUESTION OF LAW
It is contended by the Respondent that the appeal doesn’t involve any substantial question of
law. Questions of fact cannot be permitted to be raised unless there is material evidence
which has been ignored by the HC or the finding reached by the court is perverse14. In this
instant case the High court has declared polygamy as unconstitutional because the Appellant
didn’t followed the instruction as per the Quran.
5
Shivanand Gaurishankar Baswati v. Laxmi Vishnu Textile Mills, (2008) 13 SCC 323
6
Narpat Singh v. Jaipur Development Authority, (2002) 2 SCC 666.
7
Dhakeswari Cotton Mills Ltd. v. CIT West Bengal, AIR 1955 SC 65; See also, Arunalchalam v. Sethuratnam,
AIR 1979 SC 1284
8
M.P Jain, Indian Constitutional Law, 5776 (16th edn Lexis Nexis Butterworth 2011).
9
Council of Scientific and Industrial Research v. K. G. S. Bhatt, AIR 1989 SC 1972 ; State of H. P. V. Kailash
Chand Mahajan, AIR1992 SC 1277; Mathai Joby v. George, (2010) 4 SCC 358.
10
A.V. Papayya Sastry v. Government of Andhra Pradesh, AIR 2007 SC 1546.
11
Zahira Habibullah Sheikh v. State of Gujarat, AIR 2004 SC 3467.
12
AIR 2004 SC 4618.
13
AIR 2005 SC 15
14
Union of India v. Rajeshwari & Co., AIR 1986 SC 1748; See also, Gurbakhsh Singh v. State of Punjab, AIR
1955 SC 320.

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The Almighty Allah states in the Holy Qur'an: "And among His signs is this, that He created
for you mates from among yourselves..." (30:21). "The Prophet of Allah (swt) stated:
'Whoever chooses to follow my tradition must get married and produce offspring through
marriage (and increase the population of Muslims) so that on the day of resurrection I shall
confront other Ummah (nations) with the (great) numbers of my Ummah'. “right to be treated
equally”. As the Appellant fails to follow the instuction given in the quran and did injustice to
his second wife by not treating equally and breakes the purpose of this instant marriage in this
instant case.
Therefore there is no question of law on behalf of the Appellant. Hence, it is submitted that
on account of the fact that the position is well-settled by the High Court in its earlier
decisions,15 no substantial question of law is involved in this instant matter.
1.3 NON-INTERFERENCE IN THE DECISION OF THE LOWER COURTS
If it appears prima facie that the order in question cannot be justified by any judicial standard,
the ends of justice and the need to maintain judicial discipline require the Supreme Court to
intervene16; the Supreme Court in this case pointed out the errors of the High Court, but, did
not interfere in the decision of the High Court. The Supreme Court does not interfere with the
conclusion arrived at by the High Court if it has taken all the relevant factors into
consideration and there has been no misapplication of the principles of law17. Normally, in
exercising its jurisdiction under Article 136, the Supreme Court does not interfere with the
findings of the fact concurrently arrived at by the tribunal and the High Court unless there is a
clear error of law or unless some important piece of evidence has been omitted from
consideration18.Though Article 136 is conceived in widest terms, the practice of the Supreme
Court is not to interfere on questions of fact except in exceptional cases when the finding is
such that it shocks the conscience of the court19. Wherefore the case is well settled in the
decisions of the High Court justice served appropriate and no special leave petition is
maintainable in this instant case.
15
Malabar Industrial Co. Ltd. v. CIT,(2000) 243 ITR 83.
16
Union of India v. Era Educational Trust, AIR 2000 SC 1573.
17
DCM v. Union of India, AIR 1987 SC 2414.
18
Mehar Singh v. Shri Moni Gurudwara Prabandhak Committee, AIR 2000 SC 492
19
Panchanan Misra v. Digambar Mishra, AIR 2005 SC 129.

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2.1 DOESN’T SATISFYING MARITAL OBLIGATION AMOUNTS TO MENTAL

CRUELTY
"Marriage without sex is an anathema. Sex is the foundation of marriage and without a
vigorous and harmonious sexual activity it would be impossible for any marriage to continue
for long”20. Refusal on the part of the husband to indulge in normal sexual intercourse
amounts to cruelty21. Sex plays important role in matrimonial life and cannot be separated
from other factors leading to a successful married life. Therefore, conduct of husband or wife
which renders the continuance of cohabitation and performance of conjugal duties impossible
amounts to such cruelty22.
A normal and healthy sexual relationship is one of the basic ingredients of a happy and
harmonious marriage. If this is not possible due to ill health on the part of one of the spouses,
it may or may not amount to cruelty depending on the circumstances of the case. But willful
denial of sexual relationship by a spouse when the other spouse is anxious for it, would
amount to mental cruelty, especially when the parties are young and newly married23.
Unilateral decision of refusal to have intercourse for considerable period without there being
any physical incapacity or valid reason may amount to mental cruelty24."
2.2 MARRIAGE IS A MATTER OF CIVIL CONTRACT
Section- 2(viii) that the husband treats her with cruelty, that is to say,— (f) if he has more
wives than one, does not treat her equitably in accordance with the injunctions of the Quran;
Rita Nijhawan v. Balkrishan Nijhawan AIR 1973 Del 200

20
A. v. B. 1996 (1) KLT 275 : 1996 AIHC 1727

21
Prem Prakash v. Sarla AIR 1989 MP 326

22
Smt. Shakuntala Kumari v. Om Prakash Ghai AIR 1981 Delhi 53

23
Samar Ghosh vs Jaya Ghosh (2007) 4 SCC 511.

24

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A great deal of emphasis has been given in the Holy Qur'an and the Traditions to both
marriage and having children. The Almighty Allah states in the Holy Qur'an: "And among
His signs is this, that He created for you mates from among yourselves..." (30:21).
"The Prophet of Allah (swt) stated: 'Whoever chooses to follow my tradition must get
married and produce offspring through marriage (and increase the population of Muslims) so
that on the day of resurrection I shall confront other Ummah (nations) with the (great)
numbers of my Ummah'.
Muslim Law permits polygamy but has never encouraged it. The sanction for polygamy
among Muslim is traced to the Quran IV. 3, "If Ye fear that ye cannot do justice between
orphans, then marry what seems good to you of women, by twos, or threes, or fours or if ye
fear that ye cannot be equitable, then only one, or what your right hand possesses.25
The most convincing proof of the impact of social changes on Muslim Law is the passing of
the Dissolution of Muslim Marriages Act 1939 by which the legislature enabled a Muslim
wife to sue for the dissolution of her marriage on a number of grounds which were previously
not available. One of them is the failure of the husband who has more wives than one to treat
all of them equitably in accordance with the injunctions of the Quran. "By this Act the
legislature has made a distinct: endeavour to ameliorate the lot of the wife and. we (the
Courts) must apply the law in consonance with the spirit of the legislature.'26
In this instant case, the Appelant could not procreate children with his first wife, therefore his
parents advised him to get married with sufia. After getting married with the second wife the
Appelant first wife gave birth to a baby boy and the appelant refuses to have a child with the
second wife, wherefore it clearly shows the gross discrimination and injustice to the
respondent. The petitioner fails to treat equally and this amounted to mental cruelty for the
respondent. Hence the contract of marriage is not fullfiled in this instant case, therefore this
polygamy marriage is void and null.
25
Itwari vs Smt. Asghari And Ors. AIR 1960 All 684
26
Mt. Sofia Begum v. Zaheer Hasan, AIR 1947 All 16.

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OF FUNDAMENTAL RIGHTS?
It is most humbly submitting before this Hon’ble Court that personal laws can be challenged
on violation of fundamental rights firstly Personal laws are laws and it also laws in force.
3.1 PERSONAL LAWS CAN BE CHALLENGED ON VIOLATION OF FUNDAMENTAL

RIGHTS
The main features and characteristics of law are well recognized and that stated broadly, “A
law generally is a body of rules which have been laid down for determining legal rights and
legal obligations which are recognized by courts27”. It was submitted, that the observations
in the Narasu Appa Mali case28, that ‘personal law’ was not covered under Article 13, was
incorrect and not binding upon this Court29. If there is a conflict between personal laws and
statutory law it should be set at rest by holding that the statutory law will prevail over the
Personal Law of the parties30.
Further the Supreme Court has tested these very personal laws on the touchstone of
fundamental rights and at times even struck them down. The basic structure permits equality
of status and opportunity. The personal laws conferring inferior status on women are
anathema to equality. Personal laws are derived not from the Constitution but from the
religious scriptures. The laws thus derived must be consistent with the Constitution lest they
become void under Article 13 if they violate fundamental rights31. In Githa Hariharan v.
Reserve Bank of India32 a three judge Bench of the Supreme Court was considering the
Constitutional validity of S. 6 of the Hindu Minority and Guardianship Act. The challenge
was on the basis that the section discriminates against women, as the father is the natural
guardian of a minor and not the mother. The Court did not reject the Petition on the ground
that it could not go into Constitutional validity of personal law.
27
Narsingh Pratap Deo v. State of Orissa (AIR 1964 SC 1793)
28
AIR 1952 Bom. 84.
29
Shayara Bano v. Union of India & Ors. (2017) 9 SCC 1
30
Mohd. Ahmed Khan Vs. Shah Bano Begum and Ors., (1985) 2 SCC 556
31
Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil (1996 8 SCC 525)
32
(1999 2 SCC 228)

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In John Vallamattom v. Union of India a three Judge Bench of the Supreme Court was
considering the Constitutional validity of S. 118 of the Indian Succession Act, 1925, a pre
Constitutional personal law applicable essentially to Christians and Parsis the Court went into
its Constitutional validity and struck it down as being violative of Article 14 of the
Constitution33. So therefore personal laws can be challenged on violation of fundamental
rights.
3.2 THE PRACTISE OF POLYAMY VIOLATES FUNDAMENTAL RIGHTS OF

WOMEN
The practice of polygamy directly contradicts the principle of equality enumerated in Art. 14
of the Constitution of Magicland because it grants one spouse unilateral right to take multiple
partners without the consent of the other spouse. As a result women are treated as a lesser
member of the family and enjoy an inferior status to men with less power to participate in the
decisions of family. Again, due to multiple partners the first spouse is forced to share the
resources of marriage. Polygamy forces women to live in poverty by forcing them to share
resources. Polygamy also has a detrimental effect on children because when a man has more
than one wife, he often has a large number of children in a short period of time.
Conflicts often erupt among the families because several wives and children are competing
for small and finite amount of resources.34 Moreover, polygamy places women at a greater
risk of contracting sexually transmitted Diseases eg. HIV / AIDS when their husband has
multiple sexual partners and they have less power to negotiate safe intercourse.
Thus, failure to secure the same equal rights and life of dignity for Muslim women violates
their most basic human and fundamental right to a life of dignity unmarried by gender
discrimination, which in turn have a critical impact on their social and economic rights.
Polygamy has been banned in several countries. For instance, in United States Morrill Anti-
Bigamy Act, made polygamy a misdemeanour offense in US territories and In Canada
polygamy is a Criminal offence under Section 293 of Federal Criminal Code of Canada.
Similarly it has been banned in Tunisia, France, Morocco, Indonesia etc.
33
(2003 6 SCC 611)
34
www.austlii.edu.au/au/journals/MurUEJL/2005/

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3.2.1 PRACTICE OF POLYGAMY INJURES PUBLIC HEALTH AND MORALITY
The freedom of conscience and free profession, practice and propagation of religion
guaranteed by Art. 25 of the Constitution is not absolute and, in terms of Art. 25(1), “subject
to public order, morality and health and to the other provisions of this Part”. Thus a
harmonious reading of Part III of the Constitution clarifies that the freedom of Conscience
and free profession, practice and propagation of religion guaranteed by Art. 25 is subject to
the fundamental rights guaranteed by Articles 14, 15 and 21. In fact, Article 25 clearly
recognizes this interpretation by making the right guaranteed by it subject not only to other
provisions of Part III of the Constitution but also to public order, Morality and health35.
If religious practices run counter to public order, morality or health or a policy of social
welfare upon which the State has embarked, then the religious practices must give way before
the good of the people of the State as a whole36." The practice of polygamy is injurious to
'public morals', even though some religions may make it obligatory or desirable for its
followers. The Court held that polygamy can be superseded by the State just as it can prohibit
human sacrifice or the practice of Sati in the interest of public order37.
The constitution provides safe guard to the religious belief and not practices and thus
government is entitled to abolish any such practice which is found to be against public morals
and safety according to Article25(1)of the Constitution.
3.2.2 CONTRAVENES QURANIC VERSUS THAT PERMITS MONOGAMY
With the advent of modernization the concept of Polygamy in Islam has lost its relevance but
it has been retained by a section of Muslim community to satisfy their own vested interest it
has resulted in the continuation of pre-dominance of male members in the society and has
accorded a inferior status to their female counter part. The discriminatory aspects of the
practice of polygamy can be understood under the following heads-
35
Shayara Bano v. Union of India (2017) SCC 1
36
Khursheed Ahmad Khan vs State Of U.P.& Ors (2003) 8 SCC 369
37
Sarla Mudgal (Smt.), President, Kalyani and Ors. Vs. Union of India and Ors. (1995) 3 SCC 635

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Polygamy is a misunderstood concept in Islam. Quran allows polygamy but subject to very
strict restrictions –
“marry of the women, who seem good to you, two or three or four, if u fear that u cannot do
justice(i.e treat equally) to so many, then only (one), or (a captive) that your right hands
possess that will be more suitable, to prevent you from doing injustice”38
Giving equal treatment to two or more wives does not mean only providing them equal food
and clothing but it also mean guaranteeing them equal love and affection .But since it is
humanly impossible to give equal love and affection to all the wives without showing favour
towards one or prejudice to another39. This was very well apprehended and the Quran lays
down in subsequent Ayat that:
“You will not be able to deal equally with your wives however much you wish to do so”40
On the basis of these two verses of Quran sometimes the progressive Muslims plead that
since the fulfilment of the Quran condition is not possible, Monogamy should be the rule of
law.41
Thus it is evident that though a plain reading of the Holy Quran might suggest that Quran
permits polygamy but when all the verses of Quran are read in conjunction then it can be
understood that Quran is in the favour of Monogamy. There is a strict monogamy among the
Motzilla Muslims. So therefore declaration of polygamy as unconstitutional doesn’t violate
the fundamental rights enriched under Art.25 and the practise of polygamy violates Art.14
and 21 of Constitution of Magicland.
38
Quran. Sura IV.Ayat
39
P.39MUSLIM LAW (As Applied In India)by RKSINHA 6thEditionlatestReprint2012,CENTRAL LAW
AGENCY
40
Quran,suraIV,Ayat129
41
P.39MUSLIM LAW (As Applied In India)by RKSINHA 6thEditionlatestReprint2012,CENTRAL LAW
AGENCY

2 ND
PRAYER FOR RELIEF
Wherefore, in the light of the issues raised, arguments advanced and authorities cited, it is
humbly prayed that this Hon’ble Court may be pleased to:
 Dismiss the SLP filed by the Mr. Sultan
OR
Pass any other order, direction or relief that this Hon’ble Supreme Court may deem fit and
proper in the facts and circumstances of this case and in the best interests of justice, fairness,
equity and good conscience.
ALL OF WHICH IS MOST RESPECTFULLY SUBMITTED.
- COUNSEL FOR THE RESPONDENT

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SHRI. KONERU LAKSHMAIAH MEMORIAL

BEFORE THE HON’BLE SUPREME COURT OF MAGICLAND

PETITION INVOKED UNDER ART.136 OF

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS LORDSHIP’S

MEMORANDUM ON BEHALF OF RESPONDENT

MEMORANDUM OF ARGUMENTS FOR THE PETITIONER

1.1 NO EXCEPTIONAL AND SPECIAL CIRCUMSTANCES EXIST AND

SUBSTANTIAL JUSTICE HAS BEEN DONE IN THE PRESENT CASE………….…….11

1.2 THERE IS NO EXISTENCE OF SUBSTANTIVE QUESTION OF LAW…………….12

1.3 NON-INTERFERENCE IN THE DECISION OF THE LOWER COURTS…………....13

2. WHETHER OR NOT BEGETING OF CHILDREN BY Mr. SULTHAN WOULD

CAUSE MENTAL CRUELTY TO Mrs. SUFIA?...................................................................14

2.1 DOESN’T SATISFYING MARITAL OBLIGATION AMOUNTS TO MENTAL

2.2 MARRIAGE IS A MATTER OF CIVIL CONTRACT…………………………………14

3. WHETHER OR NOT PERSONAL LAWS CAN BE CHALLENGED ON VIOLATION

3.1 PERSONAL LAWS CAN BE CHALLENGED ON VIOLATION OF FUNDAMENTAL

MEMORANDUM ON BEHALF OF RESPONDENT Page 1 of 21

3.2 THE PRACTISE OF POLYAMY VIOLATES FUNDAMENTAL RIGHTS OF

3.2.1 PRACTICE OF POLYGAMY INJURES PUBLIC HEALTH AND MORALITY…...18

3.2.2 CONTRAVENES QURANIC VERSUS THAT PERMITS MONOGAMY………….18

PRAYER FOR RELIEF...........................................................................................................20

MEMORANDUM ON BEHALF OF RESPONDENT Page 2 of 21

AIHC All India High Court Cases

AIR All India Reporter

M.P Madhya Pradesh

PIL Public Interest Litigation

SCC Supreme Court Cases

SLP Special Leave Petition

U.P Uttar Pradesh

UOI Union of India

MEMORANDUM ON BEHALF OF RESPONDENT Page 3 of 21

 A.V. Papayya Sastry v. Government of Andhra Pradesh, AIR 2007 SC 1546.

 Aero Traders Private Limited v. Ravider Kumar Suri, AIR 2005 SC 15

 Arunalchalam v. Sethuratnam, AIR 1979 SC 1284

 Council of Scientific and Industrial Research v. K. G. S. Bhatt, AIR 1989 SC 1972

 DCM v. Union of India, AIR 1987 SC 2414.

 Githa Hariharan v. Reserve Bank of India (1999 2 SCC 228)

 Gurbakhsh Singh v. State of Punjab, AIR 1955 SC 320.

 Itwari vs Smt. Asghari And Ors. AIR 1960 All 684

 John Vallamattom v. Union of India (2003 6 SCC 611)

 Khursheed Ahmad Khan vs State Of U.P.&amp; Ors (2003) 8 SCC 369

 M.C. Mehta v. Union of India, AIR 2004 SC 4618.

 Malabar Industrial Co. Ltd. v. CIT,(2000) 243 ITR 83.

 Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil (1996 8 SCC 525)

 Mathai Joby v. George, (2010) 4 SCC 358.

 N. Suriyakala v. A. Mohandoss, (2007) 9 SCC 196.

 Narassu Appa Mali v. State of Bombay AIR 1952 Bom. 84.

 Narpat Singh v. Jaipur Development Authority, (2002) 2 SCC 666.

 Narsingh Pratap Deo v. State of Orissa (AIR 1964 SC 1793)

 Panchanan Misra v. Digambar Mishra, AIR 2005 SC 129.

 Prem Prakash v. Sarla AIR 1989 MP 326

 Rita Nijhawan v. Balkrishan Nijhawan AIR 1973 Del 200

 Samar Ghosh vs Jaya Ghosh (2007) 4 SCC 511.

MEMORANDUM ON BEHALF OF RESPONDENT Page 4 of 21

 Shayara Bano v. Union of India & Ors (2017) 9 SCC 1

 Smt. Shakuntala Kumari v. Om Prakash Ghai AIR 1981 Del 53

 State of H. P. V. Kailash Chand Mahajan, AIR1992 SC 1277

 Union of India v. Era Educational Trust, AIR 2000 SC 1573.

 Union of India v. Rajeshwari &amp; Co., AIR 1986 SC 1748;

 A v. B. 1996 (1) KLT 275 : 1996 AIHC 1727

 Zahira Habibullah Sheikh v. State of Gujarat, AIR 2004 SC 3467.

 Constitutional Law of India………………………………………...Durga Das Basu.

 Khursheed Ahmad Khan vs State Of U.P.& Ors (2003) 8 SCC 369

 Union of India v. Rajeshwari & Co., AIR 1986 SC 1748;