CITY ACADEMY LAW COLLEGE 4th INTRA MOOT COURT / POOL SELECTION COMPETITION-2017
MOOT PROPOSITION-
India is a secular country, cultured with wide religious and linguistic diversities, various communities like Hindus, Muslims, Christians freely live and practise their religion, there is no intervention of the state on the religious matters and also the Constitution of India provides for the right to freedom of religion as a fundamental right.
India being a secular country gives importance to the religious practices of its minority community and for that Muslim community have, separate Personal Laws governing the matters of Marriage, Divorce and Succession.
Sana Khan, belonging to the Muslim community, married to Salman Khan according to the rituals of the Muslim community on 20th September, 2010. The matrimonial relationship between Sana and Salman led to the birth of two children.
In March 2013, Salman saw his wife with some other man in a restaurant , when about the incident, Sana denied to be with any person in that restaurant but later she admitted that person to be his friend, since then there were regular quarrels between them.
On 29th January, 2014 Sana left the house of her husband and started living in parent’s house, children were in the custody of her husband.
Salman visited Sana’s place many times for giving her maintenance money and asking her to come back and start living with him but Sana refused to do so.
On 20 October, 2015 Salman approached the Court of the Principal Judge, Family Court at Lucknow, with a prayer for restitution of conjugal rights.
Sana khan asserted that Salman khan, his husband had continuously made dowry demand for cash and car and also beaten her, due to which she left her husband house and start living with her father.
In view of the above averments of Sana, Salman felt that his wife was not ready for reconciliation, and therefore, he withdrew the suit (for restitution of conjugal rights), preferred by him at Lucknow, and divorced Sana on 20 January 2016.
Sana has approached Supreme Court of India for assailing the divorce pronounced by her husband Salman Khan , wherein he affirmed “…in the presence of witnesses saying that I gave ‘talak, talak, talak’, hence like this I divorce from you from my wife.From this date there is no relation of husband and wife. From today I am ‘haraam’, and I have become ‘naamharram’. In future you are free for using your life”, The aforesaid divorce was pronounced the two witnesses.
Sana has sought a declaration, that the ‘talaq-e-biddat’ pronounced by her husband be declared as void abinitio. She also contended , that such a divorce which abruptly,unilaterally and irrevocably terminates the ties of matrimony, purportedly under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937(hereinafter referred to as, the Shariat Act), be declared unconstitutional.
It was also submitted by her, that the ‘talaq-e-biddat’(triple talaq), pronounced by her husband is not valid, as it is not a part of ‘Shariat’ (Muslim ‘personal law’) also, that divorceof the instant nature, cannot be treated as “rule of decision” under the Shariat Act.
It was also submitted, that the practice of ‘talaq-e-biddat’ is violative of the fundamental rights guaranteed under Articles 14, 15 and 21 of the Constitution,that the practice of ‘talaq-e-biddat’ cannot be protected under the rights granted to religious denominations (or any sections thereof) under Article 25(1), 26(b) and 29 of the Constitution. It was submitted, that the practice of ‘talaq-e-biddat’ is denounced internationally, and further, a large number of Muslim theocratic countries, have forbidden the practice of ‘talaq-e-biddat’, and as such, the same cannot be considered sacrosanct to the tenets of the Muslim religion.
The petition has been listed for final hearing before the Hon’ble Supreme Court of India on 11th October, 2017.
Notes-:
(i) Teams have to prepare memorials from both the side i.e. Petitioner and Respondent.(ii) Teams are required to present their original arguments based on their detailed research. Teams may take help from relevant case laws, articles, reports, papers etc. , however, they cannot cite the recent judgment of Supreme Court as a precedent.
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