TEAM CODE I11

INTAR MOOT COURT – 2024

KLE LAW COLLEGE
(Constituent College of KLE Technological University, Hubballi)
BEFORE
THE HON’BLE FAMIAL COURT OF

In the matter of
Atika
(Petitioner)
V.
Saquib
(Respondent)

UPON SUBMISSION TO THE HON’BLE FAMILY COURT UNDER SECTION 2

DISSOLUTION OF MUSLIM MARRIAGES ACT.

Memorial for the Petitioner

Memorial on behalf of Petitioner

TABLE OF CONTENTS

LIST OF ABBREVIATION.......................................................................................02

INDEX OF AUTHORITIES.........................................................................................03

STATEMENT OF JURISDICTION.............................................................................04 – 06

STATEMENT OF FACTS.....................................................................................07 – 08

ISSUES RAISED..................................................................................................09

SUMMARY OF ARGUMENTS.............................................................................10

ARGUMENTS ADVANCED...............................................................................11 – 15

Issue I - Whether Atika is entitled to maintenance from Saquib under Section 125 of the Code
of Criminal Procedure (CrPC)?

Issue II - Whether grounds for divorce under Section 2 of the Dissolution of Muslim Marriages
Act, 1939 exist in Atika's case against Saquib?

Issue III - Whether Saquib's failure to pay dower to Atika, violates Islamic law principles under
Muslim Personal law (Shariat) Application Act, 1937?

PRAYER...............................................................................................................16

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Memorial on behalf of Petitioner

LIST OF ABBREVIATIONS

Abbreviations Full form

AIR All India report
Ors. Others
V. Versus
Sec. Section
CrPC The code of Criminal procedural
SCC Supreme court cases
SCR Supreme court reports

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INDEX OF AUTHORITIES

STATUTES

1. Code of Criminal Procedure Act.

2. Dissolution of Muslim Marriages Act
3. Muslim Personal law (Shariat) Application Act

BOOKS

1. B. B. Mitra, Indian Succession Act, 1925.15th Edition, (New Delhi: Jain Book
Agency, 2018).
2. A Fyzee, Outlines of Mohammedan Law, (New Delhi: Oxford University Press India,
2018).
3. Basu, N.D., Law of Succession, 5th Edition, (Calcutta: Eastern Law House, 2014).
4. Paras Diwan, Family Law: Law.of Marriage` and Divorce' in India, (New Delhi:
Universal Law Publishing Co. Ltd, 2021).
5. M. Bhattacharjee, Muslim Law and the Constitution (Calcutta: Eastemn Law
House,1994)
6. Tahir Mahmood &Saif Mahmood: Introduction to Muslim Law, Second Edition
(Gurgaon: LexisNexis 2018).
7. A.M.Bhattacharjee, Matrimonial Laws and the Constitution, 2nd Edition, Edited by
Ruma Pal, (Calcutta: EBC, 2017).

CASES

1. Savitaben Somabhai Bhatiya vs State of Gujarat AIR 2005 SC 1809

2. Bhuwan Mohan Singh vs Meena AIR 2014 SC 2875
3. Vimala vs Veeraswamy 1991 SCC (2) 375
4. Shamim Ara v. State of U.P. AIR 2002 SC 3551
5. Mohd. Ahmad Khan v. Shah Bano Begum 1985 SCR (3) 844

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Memorial on behalf of Petitioner

STATEMENT OF JURISDICTION

The Plaintiff have approached before The Hon’ble Family court of under section 125 of the
Code of Criminal Procedure Act, by filing for divorce and maintenance in the Family Court.
The plaintiff humbly submits to the jurisdiction of this Hon’ble Court.

Section 125 of Code of Criminal Procedure Act - Order for maintenance of wives, children
and parents.

If any person having sufficient means neglects or refuses to maintain—

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain
itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained
majority, where such

child is, by reason of any physical or mental abnormality or injury unable to maintain itself,
or

(d) his father or mother, unable to maintain himself or herself,

a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to
make a monthly

allowance for the maintenance of his wife or such child, father or mother, at such monthly

rate as such

Magistrate thinks fit and to pay the same to such person as the Magistrate may from time to
time direct:

Provided that the Magistrate may order the father of a minor female child referred to in clause
(b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the
husband of such minor female child, if married, is not possessed of sufficient means:

[Provided further that the Magistrate may, during the pendency of the proceeding regarding
monthly allowance for the maintenance under this sub-section, order such person to make a
monthly allowance for the interim maintenance of his wife or such child, father or mother,
and

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Memorial on behalf of Petitioner

the expenses of such proceeding which the Magistrate considers reasonable, and to pay the
same to such person as the Magistrate may from time to time direct:

Provided also that an application for the monthly allowance for the interim maintenance and
expenses of proceeding under the second proviso shall, as far as possible, be disposed of
within sixty days from the date of the

service of notice of the application to such person.]

Explanation. —For the purposes of this Chapter, —

(a) “minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of
1875) is deemed not to have attained his majority;

(b) “wife” includes a woman who has been divorced by, or has obtained a divorce from, her
husband and has not remarried.

[(2) Any such allowance for the maintenance or interim maintenance and expenses of
proceeding shall be payable from the date of the order, or, if so ordered, from the date of the
application for maintenance or interim maintenance and expenses of proceeding, as the case
may be.]

(3) If any person so ordered fails without sufficient cause to comply with the order, any such
Magistrate may, for every breach of the order, issue a warrant for levying the amount due in
the manner provided for levying fines, and may sentence such person, for the whole or any
part of each month’s [allowance for the maintenance or the interim maintenance and
expenses of proceeding, as the case may be,] remaining unpaid after the execution of the
warrant, to imprisonment for a term which may extend to one month or until payment if
sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this
section unless application be made to the Court to levy such amount within a period of one
year from the date on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living with
him, and she refuses to live with him, such Magistrate may consider any grounds of refusal
stated by her, and may make an order under this section notwithstanding such offer, if he is
satisfied that there is just ground for so doing.

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Memorial on behalf of Petitioner
Explanation. —If a husband has contracted marriage with another woman or keeps a
mistress, it shall be considered to be just ground for his wife’s refusal to live with him.

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Memorial on behalf of Petitioner

(4) No wife shall be entitled to receive an [allowance for the maintenance or the interim
maintenance and expenses of proceeding, as the case may be,] from her husband under this
section if she is living in adultery, or if, without any sufficient reason, she refuses to live with
her husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section in
living in adultery, or that without sufficient reason she refuses to live with her husband, or
that they are living separately by mutual consent.

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Memorial on behalf of Petitioner

STATEMENT OF FACTS

1. Atika, a 14-year-old high-school student, was passionate about advocating for gender
issues, regularly expressing her views on social media. However, on her 14th
birthday, her father made a decision that conflicted with Atika's beliefs. He arranged
for her to marry Saquib, a 21-year-old IT professional who was the son of his friend.
Despite Atika's reservations about the arrangement, she engaged in discussions with
Saquib about their future together.
2. Saquib, being at the early stages of his career, informed Atika that he couldn't afford
to pay the dower at the time of marriage. Atika, perhaps out of a sense of obligation or
acceptance of the cultural norm, agreed to this condition.
3. On the day of the wedding, a tragic event unfolded when Atika's father suffered a
stroke, leaving him unable to fulfil his duties. These responsibilities were taken over
by Atika's sister's husband, including giving consent to the marriage on behalf of
Atika's father.
4. Despite the unconventional circumstances surrounding their marriage, Atika and
Saquib began their life together in Saquib's paternal home, where they lived with his
parents and brothers. Despite the initial challenges, the couple seemed to get along
well and started envisioning their future together.
5. However, the dynamics of their marriage shifted when Saquib expressed his desire to
marry his therapist, Ms. Rumana. Surprisingly, Atika consented to this proposal.
Saquib paid a dower of ₹2,00,000 to Ms. Rumana, indicating his commitment to the
second marriage.
6. As time passed, Atika started feeling marginalized and unequal in her relationship
with Saquib, especially as he began spending more time with Rumana. Their outings
together became frequent, leaving Atika feeling neglected and isolated within her own
marital home.
7. The situation reached a breaking point in October 2023 when Atika decided to leave
and return to her parents' home. She cited the unequal treatment between the wives
and Saquib's failure to pay her dower as reasons for her departure. Tragically, Atika's
father, already in fragile health, couldn't bear the strain of the family discord and
ultimately took his own life by jumping off a river bridge.
8. In the aftermath of these events, Atika seeks legal recourse by approaching the Family
Court, seeking divorce and maintenance from Saquib. However, Saquib contests the

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Memorial on behalf of Petitioner

validity of their marriage, setting the stage for a contentious legal battle with far-
reaching consequences.

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Memorial on behalf of Petitioner

STATEMENT OF ISSUE

1. Whether Atika is entitled to maintenance from Saquib under Section 125 of the Code
of Criminal Procedure (CrPC)?

2. Whether grounds for divorce under Section 2 of the Dissolution of Muslim Marriages
Act, 1939 exist in Atika's case against Saquib?

3. Whether Saquib's failure to pay dower to Atika, violates Islamic law principles under
Muslim Personal law (Shariat) Application Act, 1937?

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Memorial on behalf of Petitioner

SUMMARY OF ARGUMENTS

Issue I

Whether Atika is entitled to maintenance from Saquib under Section 125 of the Code of
Criminal Procedure (CrPC)?

Atika asserts her right to maintenance from Saquib under Section 125 of the Code of
Criminal Procedure (CrPC), citing her contributions to the marriage and alleging
mistreatment. She contends that this provision entitles her to financial support, ensuring her
economic rights and upholding Saquib's marital obligations.

Issue II

Whether grounds for divorce under Section 2 of the Dissolution of Muslim Marriages
Act, 1939 exist in Atika's case against Saquib?

Atika argues that grounds for divorce exist according to Section 2 of the Dissolution of
Muslim Marriages Act, 1939, based on Saquib's alleged unequal treatment, emotional
neglect, and breaches of matrimonial obligations. She seeks to dissolve the marriage,
challenging its validity due to these significant issues.

Issue III

Whether Saquib's failure to pay dower to Atika, violates Islamic law principles under
Muslim Personal law (Shariat) Application Act, 1937?

Atika maintains that Saquib's failure to fulfil his dower obligation violates Islamic law
principles under the Muslim Personal Law (Shariat) Application Act, 1937. By failing to pay
the dower owed to her, Atika argues that Saquib has contravened fundamental principles of
fairness and equity in Islamic matrimonial law, potentially rendering their marriage invalid.

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Memorial on behalf of Petitioner

ARGUMENTS ADVANCED

Issue I

Whether Atika is entitled to maintenance from Saquib under Section 125 of the Code of
Criminal Procedure (CrPC)?

1.1 Contributions to the Marriage

Atika has made significant contributions to the marriage, both in terms of her role within the
household and her efforts to maintain the relationship. Section 125 of the Code of Criminal
Procedure (CrPC) recognizes the right of a wife to claim maintenance if she is unable to
maintain herself.

In the case of Savitaben Somabhai Bhatiya vs State of Gujarat 1, the Supreme Court held that
the term "unable to maintain herself" under Section 125 includes situations where a wife is
capable of earning but chooses not to work due to marital obligations and societal
expectations. Atika’s commitment to the marriage and her efforts to maintain the family
entitle her to maintenance from Saquib.

1.2 Mistreatment and Neglect

Section 125 of CrPC is not limited to cases of physical inability but extends to situations
where a wife is unable to maintain herself due to any other reasonable cause.

The case of Bhuwan Mohan Singh vs Meena (2014)2 emphasized that the term "maintenance"
under Section 125 includes providing reasonable financial support to the wife to live with
dignity. Saquib's actions, such as neglecting her emotional well-being and spending more
time with another woman, have created a situation where she is unable to maintain herself
adequately.

1
Savitaben Somabhai Bhatiya vs State of Gujarat AIR 2005 SC 1809
2
Bhuwan Mohan Singh vs Meena AIR 2014 SC 2875

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1.3 Economic Rights and Obligations

Section 125 of CrPC aims to protect the economic rights of spouses and ensure that
matrimonial obligations are fulfilled.

1.4 Judicial Interpretation of Maintenance

Judicial interpretation of maintenance under Section 125 of CrPC has evolved to encompass
various aspects such as social security, emotional well-being, and equitable financial support.

Vimala vs Veeraswamy (1991)3 where the Supreme Court held that maintenance should be
granted to a wife who is unable to maintain herself even if she is living separately from her
husband for reasons attributable to him. This precedent establishes that Atika's decision to
leave due to mistreatment and neglect does not disqualify her from seeking maintenance
under Section 125 of CrPC.

Issue II

Whether grounds for divorce under Section 2 of the Dissolution of Muslim Marriages
Act, 1939 exist in Atika's case against Saquib?

Grounds for Divorce

The Dissolution of Muslim Marriages Act, 1939, provides specific grounds upon which a
Muslim woman can seek divorce. Atika's case against Saquib presents compelling arguments
for dissolution under this Act based on Saquib's conduct and the circumstances of their
marriage.

2.1 Section 2(b) of the Dissolution of Muslim Marriages Act, 1939

Saquib's unequal treatment and emotional neglect constitute grounds for divorce under
Section 2(b) of the Act. This provision allows divorce if the husband treats his wife with
cruelty, where cruelty includes both physical and mental anguish. Atika can present evidence
of how Saquib's actions, such as spending excessive time with another woman and neglecting
her emotional needs, caused her mental distress and constituted cruelty under this provision.

3
Vimala vs Veeraswamy 1991 SCC (2) 375

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Memorial on behalf of Petitioner

In the landmark case of Shamim Ara v. State of U.P. 4, the Supreme Court interpreted the
grounds for divorce under Muslim law expansively. The court held that mental cruelty is a
valid ground for divorce under Muslim personal law, extending beyond physical harm. This
case sets a precedent for Atika's argument that Saquib's emotional neglect and unequal
treatment amount to cruelty under Section 2(b) of the Act, justifying her claim for divorce.

2.2 Section 2(d) of the Dissolution of Muslim Marriages Act, 1939

Additionally, Atika can invoke Section 2(d) of the Act, which allows divorce if the husband
has neglected or failed to provide maintenance for the wife for a period of two years. Despite
Saquib's initial promise of dower, his failure to fulfill this financial obligation could be
viewed as neglecting Atika's economic rights, potentially falling under this provision.

2.3 Atika's Specific Circumstances

The specific instances of neglect, emotional distress, and unequal treatment she experienced
during her marriage to Saquib. Providing evidence such as communication records, witness
testimonies, and psychological assessments can substantiate her claims and establish a strong
case for divorce under the Dissolution of Muslim Marriages Act, 1939.

Issue III

Whether Saquib's failure to pay dower to Atika, violates Islamic law principles under
Muslim Personal law (Shariat) Application Act, 1937?

Saquib's failure to pay dower to Atika and its violation of Islamic law principles under the
Muslim Personal Law (Shariat) Application Act, 1937, we must delve into the foundational
principles of Islamic matrimonial law regarding dower and its implications on the validity of
their marriage.

4
Shamim Ara v. State of U.P. AIR 2002 SC 3551

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3.1 Fundamental Principle of Dower

The concept of dower (Mahr) in Islamic law is deeply rooted in fairness and equity within
matrimonial relationships. Section 2 of the Muslim Personal Law (Shariat) Application Act,
1937, recognizes the importance of dower as a fundamental component of Islamic marriages,
reflecting the mutual respect and financial security between spouses.

3.2 Dower as Obligatory

Islamic jurisprudence upholds that dower is a mandatory right of the wife, irrespective of
whether it is specified immediately at the time of marriage or deferred.

The case of Mohd. Ahmad Khan v. Shah Bano Begum (1985 SCR (3) 844) 5 established that
dower is an integral part of Muslim personal law and must be paid to the wife as a right.

3.3 Equity and Fairness in Dower Payment

The failure to pay the dower constitutes a breach of the husband's obligations under Islamic
law. This is in line with Section 4 of the Muslim Personal Law (Shariat) Application Act,
1937, which emphasizes the application of Islamic law principles, including those related to
financial rights within marriages.

3.4 Impact on Validity of Marriage

The non-payment of dower not only violates the wife's rights but can also question the
validity of the marriage itself. In the context of Atika and Saquib's marriage, the failure to
fulfill this fundamental obligation raises significant legal and ethical concerns regarding the
legitimacy of their union.

5
Mohd. Ahmad Khan v. Shah Bano Begum 1985 SCR (3) 844

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3.5 Legal Remedies and Consequences

Atika is well within her rights to seek legal recourse based on Saquib's failure to pay the
dower. This failure not only impacts her financial security but also reflects a breach of trust
and fairness within the marriage, warranting consideration for dissolution or corrective
measures by the court.

Saquib's failure to pay the dower to Atika is not just a financial oversight but a violation of
her fundamental rights under Islamic law principles as outlined in the Muslim Personal Law
(Shariat) Application Act, 1937. The legal precedent and principles established in above
mentioned cases support Atika's claim for remedies and reinforce the importance of
upholding dower obligations within Islamic marriages.

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Memorial on behalf of Petitioner

PRAYER

The petitioner representing the Atika, humbly prays before this honourable court for the
following relief’s:

1. Justice be served in accordance with the laws and principles governing matrimonial
rights and obligations may the court consider the plight of Atika who seeks redressal
for the injustice she has faced
2. May the legal proceedings be conducted with fairness, integrity and a commitment to
upholding the rights and dignity of Atika within the frame work of Islamic law

Also, pass any other order that the court may deem fit in the favour of petitioner
to meet the ends of Equity, Justice and Good Conscience.

For this act of Kindness, the Petitioner shall duty bound forever pray.

Place: Bengaluru respectfully submitted,

Date: 29/4/2024 Council for Petitioner

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