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TC-AUR21

AMITY LAW SCHOOL NATIONAL

MOOT COURT COMPETITION, 2023

Before

THE HON'BLE SUPREME COURT OF SAHARA

WRIT JURISDICTION
Under Article 32 of the Constitution of Sahara, 1951

In the matters of

CASE NO. OOO OF 2020

NIGHAT………………………………….… [PETITIONER]
VERSUS

UNION OF SAHARA.……….…………………….…. [RESPONDENT]

--MEMORIAL on behalf of the PETITIONER--

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TABLE OF CONTENTS

TABLE OF CONTENTS ............................................................................................................. 1

LIST OF ABBREVIATIONS ...................................................................................................... 2
INDEX OF AUTHORITIES ........................................................................................................ 3
STATEMENT OF JURISDICTION ........................................................................................... 7
STATEMENT OF FACTS ........................................................................................................... 8
ISSUES RAISED......................................................................................................................... 11
SUMMARY OF ARGUMENTS................................................................................................ 12
ARGUMENTS ADVANCED..................................................................................................... 13
1. WHETHER NOTIFICATION ISSUED ON 5TH FEBRUARY 2021 BY THE STATE
OF KARUNADU IS UNCONSTITUTIONAL FOR BEING VIOLATIVE OF THE
PROVISIONS OF THE CONSTITUTION OF THE REPUBLIC OF SAHARA? ........... 13
1.1 Not as per administrative law principle: ................................................................... 13
1.2 Violating Right to Religion: ...................................................................................... 15
1.3 Notification issued is ultra vires the act and rules. .................................................. 19
1.4 Does not pass “proportionality” test: violating Article 14 ....................................... 20
1.5 Violation of freedom of expression ..............................Error! Bookmark not defined.
1.6 Abrogates right to education: .......................................Error! Bookmark not defined.
2. WHETHER WEARING A HIJAB BY SAHABI IS THE ESSENTIAL RELIGIOUS
PRACTICE AS PER SAHABI PERSONAL LAW OR NOT? ............................................ 21
2.1 What is Hijab? ........................................................................................................... 21
2.2 Quranic Mandate or essentiality of hijab in Quran ................................................. 22
2.3. Hadith......................................................................................................................... 24
2.4. Essentiality test .......................................................................................................... 25
2.5. Modesty & purity........................................................................................................ 26
3. WHETHER THE PRACTISE OF POLYGAMY AND NIKAH HALALA AS
PRACTISED BY THE SAHABIS IN VIOLATION OF ARTICLES 14, 15 AND 21? ..... 28
3.3 Political and Social presence of polygamy in History .............................................. 28
3.4 Altercation of polygamy and nikah halala with Article 14 ...................................... 30
3.5 Privacy concern in Polygamy and Nikah Halala ..................................................... 32
3.6 Scholars on Islamic verses of Quran related to polygamy and nikah halala.......... 35
PRAYER ...................................................................................................................................... 39

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LIST OF ABBREVIATIONS

S. NO. ABBREVIATION MEANING

1 AIR All India Reporter

2 All Allahabad High Court

3 Cri LJ / Cr LJ Criminal Law Journal

4 CrPC Code of Criminal Procedure

5 Del Delhi High Court

6 DW Defense Witness

7 Ed. Edition

8 IC Indian Cases

9 N. Foot Note no

10 Pg Page No.

11 P&H Punjab and Haryana High Court

12 PW Prosecution Witness

13 SC Supreme Court

14 SCC Supreme Court Cases

15 SCJ Supreme Court Journal

16 SCR Supreme Court Reporter

17 § Section

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INDEX OF AUTHORITIES

CASES

S. NO. CASE LAWS

1. Amish Devgan v. Union of India, (2021) 1 SCC 1.
2. Amita v. Union of India, (2005) 13 SCC 721.
3. Amnah Bint Basheer v. CBSE, AIR 2016 Ker 115.
4. Aruna Roy v. Union of India, (2002) 7 SCC 368.
5. Ashutosh Gupta v. State of Rajasthan (2002) 4 SCC 34
6. Badruddin v. Aisha Begum,1957 All LJ 300.
7. Basawaraj v. The Special Land Acquisition Officer, AIR 2014 SC 746.
Bijoe Emmanuel & Ors. v. State of Kerala & Ors. AIR (1987) SC 748, 1986
8.
SCR (3) 518.
9. Commissioner of Police v. Acharya J. Avadhuta, AIR 1990 Cal 104.
Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra
10.
Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282.
11. Dev Singh v. Punjab tourism Development Corporation Ltd., (2003) 8 SCC 9.
12. Haji Ali Dargah Trust v. Noorjehan Safia Niaz, (2016) 16 SCC 788.
13. Indian Young Lawyers Association v. State of Kerela, (2019) 11 SCC 1.
14. Javed v. State of Haryana, (2003) 8 SCC 369 : AIR 2003 SC 3057.
15. Keshavanand Bharati v. State of Kerala, AIR 1973 SC 1461.
16. Lachmandas v. State of Bombay, (1952) SCR 710, 726.
17. M.P. Gopalkrishnan Nair & Anr v. State of Kerala & Ors. (2005) 11 SCC 45.
18. Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
19. Manohar Lal Sharma v. The Principal Secretary, AIR 2001 SC 3667.
Mrs. Sabah Adnan Sami Khan v. Adnan Sami Khan, 2010 (112)
20.
BOMLR1409
21. National Legal Services Authority v. Union of India, (2014) 5 SCC 438.

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22. Om Kumar v. Union of India, (2001) 2 SCC 386.

23. Prakash Jha Production and Anr v. Union of India, (2011) 8 SCC 372.
24. R.A. Pathan v. Director of Technical Education, (1981) 22 GLR 289
25. S.P Mittal v. Union of India, (1983) 1 SCC 51.
26. Sarla Mudgal v. Union of India, (1995) 3 SCC 635 : AIR 1995 SC 1531.
27. Shayara Bano v. Union of India, (2017) 9 SCC 1.
28. Shreya Singhal v. Union of India, (2015) 5 SCC 1.
29. Shri Narayan Deekshitulu v. State of Andhra Pradesh, (1996) 1 SCC 548.
30. Special Court Bill v. Unknown, AIR 1979 SC 478.
31. /St. Stephens College v. University of Delhi, (1992) 1 SCC 558.
32. State of Andhra Pradesh v. Nallamilli Rami Reddy, (2001) 7 SCC 708
33. State of West Bengal v. Debasish Mukherjee, AIR 2011 SCC 3667.
34. T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481.
35. Union of India v. Rakesh P.U, (2003) 7 SCC 285.
36. Viacom Media 18 Pvt. Limited v. Union of India, (2018) 1 SCC 761

STATUTES
1. Karnataka Education Act, No. 1, Acts of Karnataka State Legislature, 1983 (India).
2. Karnataka Education Institution Rules, 1995, Karnataka Gazette Pt. IV sec. 2c (i) (14
November, 1995).
3. Right of Children to free and Compulsory Education Act, No. 35, Acts of Parliament, 2009
(India).
4. The Constitution of India, 1950.
5. The Muslim Personal Law (Shariat) Application Act, No. 26, Acts of Parliament, 1937 (India).
6. The Indian Penal Code, 1860.
7. The Muslim Woman (Protection of Rights on Divorce) Act, No. 25, Acts of Parliament, 1986
(India).

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ARTICLES & JOURNALS

1. Anna Piela, Muslim women and the politics of headscarf, JSTOR (April 6, 2022), Muslim
Women and the Politics of the Headscarf - JSTOR Daily.
2. Shubhanshi Suman, Hijab: A choice or an essential Practice? 2 J. CONTEMP. LEGAL

ISSUES. 542, (2022), https://www.juscorpus.com/wp-content/uploads/2022/05/160.-

Shubhanshi-Suman.pdf
3. Furqan Ahmed, Notes and Comments: Role of Some Indian Muslim Jurists in Development
and Reform of Muslim Personal Law in India, 34 JILI 563, (1992),
http://14.139.60.116:8080/jspui/bitstream/123456789/34741/1/014_Understanding%20Islami
c%20Law%20in%20India%20An%20Assessment%20of%20the%20Contribution%20of%20
Justice%20V.R%20Krishna%20Lyer%20a%20Tribute%20%28307-332%29.pdf.
4. Taittriya Samahita, “Polygamy among Hindus : A survey in Retrospect” 149 I. & C.L.Q.
(1985).
5. Samridhi Sikha Das, Akhil Dixit, Nikah Halala: A Legalized Sin, 5 PEN ACCLAIMS, 1,
(2019), http://www.penacclaims.com/wp-content/uploads/2019/02/Samridhi-Sikha-Das.pdf.
6. Dr G.Jambu, Socio-Economic status of a woman, A study in Warangal District in Telangana
State; 3 HUM. RTS. INT’L RES. J. 24, (2014).
7. Saumya Parmarthi, Manu Gupta, Our Nation and Its Women, 3 HUM. RTS. INT’L RES. J.24,
(2014).
8. Priti Sharma, Nishant Pal, Transgender in India: Alimented from the Society, 3 HUM. RTS.

INT’L RES. J. 24, (2014).

9. Sakina Yusuf Khan, Divorced from Reality – Amending the Triple Talaq law, IAH, (October
5, 2000), https://www.islamawareness.net/Talaq/TripleTalaq/tripletalaq_article0002.html.
10. Vidushi Marda and Bhairav Achary, Identifying aspects of privacy in Islamic law, CIS-ORG,
(14 December 2014), http://cisindia.org/internetgovernance/blog/identifying-aspects-of-
privacy-in-islamic-law.
11. Kiran B. Jain, The Quran on Polygamy-Seventh Century Religious Reform of a Socio-Legal
Institution” 1 RELIG. & L. REV. (1992).

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12. Dr Ilmana Fasih, Samra’s story: When marital abuse did not break her, THE EXPRESS

ERIBUNE BLOGS, (June 10,2013), http://blogs.tribune.com.pk/story/17620/samrasstory-

when-marital-abuse-did-not-break-her/.
13. Dhaval Kulkarni, Muslim Groups Plan to Meet Prime Minister Narendra Modi for Abolition
of Regressive Personal Laws, DNA (4 August 2014) http://www.dnaindia.com/mumbai/rep

BOOKS
1. D.D. BASU, INTRODUCTION TO CONSTITUTION OF INDIA (26th ed. 2022).

2. MULLA, PRINCIPLES OF MAHOMEDAN LAW (23rd ed. 2021).

3. DR. J.N. PANDEY, CONSTITUTIONAL LAW OF INDIA (59th ed. 2022).

4. DR. TAHIR MAHMOOD, MUSLIM LAW IN INDIA AND ABROAD (2nd ed. 2016).
5. RAKESH KUMAR SINGH, TEXTBOOK ON MUSLIM LAW (3rd ed. 2017).

6. INDRANI SEN, HUMAN RIGHTS OF MINORITY AND WOMEN’S (Isha Books 2005).

7. SYED AMEER ALI, THE SPIRIT OF ISLAM (Kitab Bhavan 1997).

8. MOHAMMAD MUSTAFA ALI KHAN, POLYGAMY IN ISLAM (Markazi
MaktabaIslami, 1996)
9. SAMUEL CHAPMAN, POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW,
(Samuel Chapman 2001).
10. Sahih al-bukhari, 4758, Book 65, Hadith 280.
11. Mishkat al-Masabih 762, Book 4, Hadith 190.
12. Riyad as-Salihin 1633, Book 17, Hadith 123

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STATEMENT OF JURISDICTION

The petitioner has duly approached the Hon’ble supreme court by invoking the provisions
of article 32 and article 132 of the constitution of India, 1949

• Article 32, states

Remedies for enforcement of rights conferred by this Part. The right to move the Supreme Court
by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed
• Article 132, states
Appellate jurisdiction of Supreme Court in appeals from High Courts in certain cases an appeal
shall lie to the Supreme Court from any judgment, decree or final order of a High Court in the
territory of India, whether in a civil, criminal or other proceeding, if the High Court certifies under
Article 134A that the case involves a substantial question of law as t the interpretation of this
Constitution

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STATEMENT OF FACTS

BACKGROUND
1) The Republic of Sahara is a sovereign, socialist, secular, and democratic nation with a
significant population, renowned for its diverse culture, languages, and religious pluralism.
The state is committed to upholding the principles of equality and fostering harmonious
relationships among its citizens. Notably, it boasts a substantial 15% representation of the
Sahabi religious group.
2) Nighat, a 19-year-old Sahabi woman, is pursuing her third year of college education at Viduli
College in Karunadu. Her father is a small-scale business owner and holds a prestigious role
as an imam in a nearby mosque. Nighat, being the eldest daughter, juggles her family's business
responsibilities alongside her academic pursuits. Due to her religious upbringing, she has worn
the hijab since the age of 10.
3) On February 5, 2021, the state of Karunadu enacted Section 133(2) of the Karunadu Education
Act of 1983, mandating that students should exclusively wear the prescribed uniform and
refrain from wearing the hijab while attending school. Consequently, Viduli College
implemented this ban on hijabs, denying entry to women wearing them. The Sahabi females
argued that they should be permitted to wear the hijab since they complied with uniform colors
and designs.
4) In response to this issue, Nighat's father made the difficult decision to withdraw her from
college. Distressed by these circumstances, Nighat sought assistance from the non-
governmental organization "Azad," which advocates for the protection of minority human
rights in the Republic of Sahara. Subsequently, Azad filed a public interest litigation in the
High Court of Karunadu, contending that the hijab ban infringed upon the right to freedom of
religion as enshrined in Article 25 of the constitution.
5) The Karunadu High Court ruled in favor of the policy, asserting that all students must adhere
to their prescribed uniforms. However, the NGO persisted and filed an appeal in the Supreme
Court of Sahara.

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EVENTS FOLLOWING THE ISSUE

6) Meanwhile, in October 2021, Nighat's father arranged her marriage to Dr. Khizar Khan, a
member of a devout religious family. Nighat and Khizar developed a loving relationship, and
she expressed her desire to continue her studies. However, this aspiration was hindered by the
hijab ban policy. Despite a period of tranquility, the couple faced hardships when Nighat
experienced two miscarriages, even after undergoing fertility treatments.
7) Ongoing tensions within the family led to frequent arguments between Nighat and Khizar.
Khizar's family insisted he marry again due to Nighat's medical condition, but she vehemently
opposed this. Consequently, on October 10, 2022, succumbing to family pressure, Khizar
married another woman named Tahira. This led to further domestic strife. On January 24, 2022,
Khizar pronounced talaq (divorce) to Nighat, leaving her devastated, and she sought refuge at
her father's house. The talaq became irrevocable on April 23, 2022.
8) Subsequently, Nighat initiated a writ petition in the High Court to challenge the validity of
polygamy under Sahabi law. Her argument centered on the contention that polygamy
contradicted the provisions of the Republic of Sahara's constitution. The High Court dismissed
her petition, prompting her to file an appeal in the Supreme Court of Sahara. Meanwhile,
Khizar and Tahira encountered difficulties in their marriage due to adjustment issues and
Khizar's guilt over leaving Nighat.
9) In response, Tahira sought khula (divorce initiated by the wife) from Khizar, leading to their
marriage dissolution on December 1, 2022. After the divorce, Khizar and Nighat reconciled
and secretly remarried on December 20, 2022, without following the practice of Halala, which
they both opposed. Four friends served as witnesses to the ceremony, and the couple relocated
to a new place, living independently.

THE DISPUTE
10) In June 2022, Nighat became pregnant and gave birth to a child on March 1, 2023. They hoped
their families would accept their marriage and newfound happiness, but their families not only
refused to acknowledge the child but also accused them of engaging in zina (illicit sexual
relations). They faced humiliation within their community. Under family and community
pressure, Khizar left Nighat on March 31, 2023.

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11) Left helpless, Nighat returned to her father's house. On May 20, 2023, she filed a declaratory
decree in the Family Court under Section 34 of the Specific Relief Act of 1963. The court
declared the marriage invalid, citing non-adherence to customary Halala practices under
Sahabi law. The High Court subsequently upheld the Family Court's decision on December
22, 2023. In response to these rulings, Nighat approached the Supreme Court, contending that
the practice of Halala was derogatory to Sahabi women and should be declared
unconstitutional.

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ISSUES RAISED

ISSUE 1 -
WHETHER THE NOTIFICATION ISSUED CONCERNING THE UNIFORM
CAN BE DECLARED UNCONSTITUTIONAL?

ISSUE 2 -
WHETHER THE WEARING OF THE HIJAB IS AN ESSENTIAL RELIGIOUS
PRACTICE AS PER SAHABI LAW?

ISSUE 3 -
WHETHER THE PRACTICE OF POLYGAMY AND NIKAH HALALA AS PER
SAHABIS IS VIOLATIVE TO THE CONSTITUTION OF REPUBLIC OF SAHARA?

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SUMMARY OF ARGUMENTS

ISSUE 1 -

WHETHER THE NOTIFICATION ISSUED CONCERNING THE UNIFORM CAN BE

DECLARED UNCONSTITUTIONAL?

It is humbly submitted before the Hon’ble bench that the notification issued by the State of
Karunadu is invalid as per the constitutional provision of republic of Sahara, there are various key
reasons to support this assertion. The hijab bans which is implemented through the notification is
not only violative fundamental Rights of Sahabi women by going against article 14, article 15,
article 19, article 25, Article 26 of the constitution but it is also violating the right to education of
already disadvantaged section of society.

ISSUE 2 -

WHETHER WEARING A HIJAB BY SAHABI IS THE ESSENTIAL RELIGIOUS

PRACTICE AS PER SAHABI PERSONAL LAW OR NOT ?

It is humbly submitted before the Hon'ble SC of Sahara that wearing of the Hijab is a religious
obligation that a Sahabi woman has to observe. It is understandable from the Qur’an, the words of
Almighty Allah, and the Hadiths of Prophet Mohammad (peace be upon him). The Quran rightly
prescribed the dress code for the Muslim women with the view to preserve the modesty and
privacy. Every religious minority has the fundamental right to conserve its religion-cultural
identity.

ISSUE 3 -

WHETHER THE PRACTICE OF POLYGAMY AND NIKAH HALALA AS PER

SAHABIS IS VIOLATIVE TO THE CONSTITUTION OF REPUBLIC OF SAHARA?

It is humbly submitted before the Hon’ble bench that Polygamy and Nikah Halala goes against the
Fundamental Rights of our Constitution infringing Equality before law under Article 14 , further
violating clause 1 of Article 15 by discriminating on grounds of religion and lastly is antithetical
to Article 21 as it infringes one’s personal liberty and privacy.

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ARGUMENTS ADVANCED

1. WHETHER NOTIFICATION ISSUED ON 5TH FEBRUARY 2021 BY

THE STATE OF KARUNADU IS UNCONSTITUTIONAL FOR
BEING VIOLATIVE OF THE PROVISIONS OF THE
CONSTITUTION OF THE REPUBLIC OF SAHARA?

Respectfully submitted to the Hon’ble Supreme Court, it is our contention that the notification
issued on February 5, 2021, by the State of Karunadu is in violation of provisions within
constitution of the Republic of Sahara. Several key reasons support this assertion.

1.1 Not as per administrative law principle:

1.1.1 In administrative law, it is a fundamental principle that both the Government and
educational institutions, as empowered by the Karnataka Education Act of 1983 (referred
to as 'the Act), are bound to exercise any authority or discretion conferred upon them in a
manner consistent with the overarching objectives of the Act. These objectives can be
deduced through a comprehensive examination of all the provisions within the Act. The
primary intent of the Act is to oversee and regulate the educational landscape within the
State. This regulation is envisioned in a manner that upholds the principles of secularism,
inclusivity encompassing all religious and cultural communities,1 sensitivity to differences
in religious and other aspects, accommodation of such differences, consideration for the
unique requirements of marginalized sections of society,2 and an unequivocal stance
against any form of religious discrimination. Furthermore, it expressly prohibits any form
of religiously biased promotion or practice that may hurt the religious sentiments of any
group of citizens. Regrettably, the actions taken by both the educational institutions and
the government are found to be in direct contradiction with these articulated objectives of
the Act.

1
Karnataka Education Act, § 39, No. 1, Act of Karnataka State Legislature, 1983 (India).
2
Karnataka Education Act, § 5, No. 1, Act of Karnataka State Legislature, 1983 (India).

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1.1.2 It is humbly submitted before the Hon’ble Court that Notification issued by the state
government is in contravention of basic tenet of constitution which is “Secularism”. A
notification issued by State government of Karunadu, under section 133(2) of the Karunadu
Education Act, 1983, states that student must wear a prescribed uniform and refrain from
wearing a hijab while attending schools regardless of whether the institution is government
or private.3 Here in this case it is explicitly stated “refrain from wearing a hijab while
attending school” means only the woman of Sahabi community who carries hijab along
with prescribed uniform are targeted that they should remove it while entering into schools.
People do argue that India is a secular country but they become ignorant of the fact that
secularism in Indian context is distinct from western concept of Secularism, like in Turkey
and France, but here it means equal status of all religion without any preference in favor of
or discrimination against any of them.4
1.1.3 In the Kesavanand Bharti v. State of Kerala5 case, The Supreme Court held that one of the
main things about a welfare state is that it should be secular, which means that it should
treat all religion equally and give people the freedom to follow their own beliefs. In this
case secularism along with other core principles of Constitution was declared as a bedrock
of Constitution. In SR Bommai v. Union of India6 supreme court further elaborated the
concept held that secularism means treating all religions equally and fairly. Here in this
case by banning the entry of Sahabi women who wear hijab along with prescribed uniform
are discriminated solely on the basis of their religious attire is totally irrational, arbitrary
and against the concept of secularism.
1.1.4 The notification issued by the Government is not achieving the uniformity which it says to
achieve by setting the same uniform to the students. It stands against constitutional
conception of unity as unity in diversity is Indian culture and ethos. The tolerance of all
religious faith and respect to all are our ethos.7 The argument of the state that the act of it
is to foster discipline into the educational institution is also untenable. Any connection

3
Moot preposition ¶ 3.
4
M.P. Gopalakrishna Nair & Anr. V. State of Kerala & Ors. (2005) 11 SCC 45
5
Keshavanand Bharati v. State of Kerala, AIR 1973 SC 1461.
6
S.R Bommai v. Union of India, (1994) 3 SCC 1.
7
St. Stephen’s College v. University of Delhi, AIR 1992 SC 1630.

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between attire and performance in studies is remote. As Supreme Court noted that nexus
between measure and its objective must be “intimate” and “Proximate”.8

1.2 Violating Fundamental Rights

1.2.1 It is humbly contended by the petitioner that the notification is violative of Fundamental
rights enshrined in Part III of Constitution of Sahara. The government notification is
arbitrary9 and has been exercised the power whimsically and capriciously. As the Article
14 says equality among equals and guarantees equality before law and equal protection of
laws.10 Prohibits discrimination on certain grounds specifically on religion and sex.11
Supreme court has held that it is not essential that laws have universal application
irrespective of nature, implication and circumstances in lives of individuals.12 For
realization of substantive equality court should take into account impact of the rule or
provision on lives of citizens.13 Thus the notification to secure “uniformity” applying the
uniform rigidly to all individual in itself violates the main concept of substantive equality.
1.2.2 The Statement of notification which explicitly prohibits Hijab is violative of Article 15. In
case of Navtej Singh Johar v. Union of India14, Court held while assessing whether a law
infringes a fundamental right, it is not the intention of the lawmaker that is determinative,
but whether the effect or operation of the law infringes fundamental rights. The effect of
the notification in Nighat’s life can be seen that she has to drop out of college. Thus, the
act of state is violating article 15 on the basis of its effect on the women of Sahabi
community who wear hijab.
1.2.3 Nighat is the girl who belongs to the very religious family her father holds the position of
Imam at a nearby Mosque and she wears Hijab since the age of 10.15 A notification issued
by the State of Karunadu and consequential ban of hijab in school premises resulted in the

8
The Superintendent, Central Prison, Fatehgarh v. Dr. Ram Manohar Lohia AIR 1960 SC 633
9
EP Royappa v. State of Tamil Nadu, AIR 1974 SC 555.
10
INDIA CONST. art. 14.
11
INDIA CONST. art. 15.
12
Dhirendra Kumar Mandal v. Govt. of West Bengal, AIR 1954 SC 424
13
Joseph Shine v. Union of India (2019) 3 SCC 39.
14
Navtej Singh Johar v. Union of India (2018) 10 SCC 1
15
Moot Proposition ¶ 2.

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drop out from the college. In this case the fact that her father restricted her further education
implies that it was essentially part of their conscientious belief that it was necessary for the
girl to wear hijab. The freedom of speech and expression of the girl has been violated in
the way that it was her right to express her identity through non-verbal speech and all the
woman wearing hijab would conform to it. It extends to encompass not only verbal or
written expression but also symbolic speech and expressions manifested through outward
actions. This assertion finds resonance in the judicial pronouncement of the Indian
Supreme Court, particularly in the case of NALSA v. UOI,16 where the court, made a pivotal
observation that individuals manifest their gender identity through their comportment and
attire. In a parallel vein, member of Sahabi community similarly expresses their religious
identity through the hijab, a form of non-verbal communication that falls squarely within
the ambit of freedom of speech and expression as guaranteed under Article 19(1) of the
constitution of Republic of Sahara.17 Notably, it has been judicially affirmed that the act of
wearing the Hijab constitutes a permissible manifestation of symbolic speech.
Consequently, it is incumbent upon the state to discharge its obligation by affording
protection to those who choose to don the Hijab.
1.2.4 In essence, Article 19(1)(a) is expansive enough to protect the right to express oneself
through various forms of symbolic communication and actions. The wearing of the hijab
constitutes an exercise of freedom of speech and expression and does not pose any
discernible threat to public order, morality, or the incitement of criminal activity. In Gulam
Abbass v. State of U.P18 Court emphasized that the administration cannot justify imposing
restrictions that selectively target a minority section of the community for the sake of
convenience of larger section which is more vociferous and militant.
1.2.5 In case such as Prakash Jha Production and Anr v. Union of India 19and Viacom Media 18
Pvt. Limited v. Union of India20, it has been recognized that when an individual objects to
a particular form of expression and is capable of fermenting significant disorder or turmoil,
the government may opt for the expedient courses of stifling the speaker’s expression rather

16
National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
17
INDIA CONST. art. 19. cl. 1.
18
Gulam Abbass v. State of U.P, AIR (1981) SC 2198.
19
Prakash Jha Production and Anr v. Union of India, (2011) 8 SCC 372.
20
Viacom Media 18 Pvt. Limited v. Union of India, (2018) 1 SCC 761.

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than quelling the resultant violence. However, it is essential to underscore that the legal
doctrine commonly known as “Heckler’s veto” cannot be invoked by the state to silent the
individuals. The Judiciary, in its wisdom, has observed that the state carries a solemn duty
to safeguard the exercise of constitutionally permissible speech, affording it in requisite
protection necessary to prevent its suppression in the threats of violence.
1.2.6 This principle is especially relevant when assessing the wearing of the hijab, which
constitutes an established and customary practice within the Sahabi community. It is crucial
to underscore that the act of wearing headscarves, as an expression of religious belief, does
not fall within the purview of reasonable restrictions as outlined in Article 19(2)21 of the
Constitution of India. The wearing of headscarves, as part of a religious tradition, does not
inherently pose a threat to public order or morality. Consequently, interfering with or
impeding this deep-rooted religious practice would not be justified under the provisions of
Article 19(2).
1.2.7 It is humbly submitted before the Hon’ble bench of Supreme Court of Sahara that other the
notification issued by State of Karunadu also abridges the fundamental right to education
which flows from Article 2122 which provides for right to life and personal liberty that
cannot be attained without proper education. In the case of Mohini Jain23, the court
recognized right to education as part of right to dignified life. By denying entry into the
premise of college solely on the basis of Hijab which Sahabi women along with Nighat
consider as the part of their conscientious belief. In the case of T.M.A. Pai Foundation
case24, Education is not just about acquiring knowledge but also about promoting diversity,
tolerance, and inclusivity. Banning religious attire like the hijab may send a message that
certain religious or cultural practice are not welcome in the educational system, which may
counter to the principle of Article 21.25
1.2.8 In the case of St. Stephens’s College v. University of Delhi26, the court emphasized that
every educational institution in the country has a duty to promote tolerance and

21
INDIA CONST. art. 19, cl. 2.
22
INDIA CONST art. 21.
23
Mohini Jain v State of Karnataka (1992) 3 SCC 666.
24
T.M.A Foundation v. State of Karnataka (2002) 8 SCC 481.
25
Supra Note 22.
26
St. Stephen's College v. University of Delhi, (1992) 1 SCC 558.

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understanding toward different communities, cultures and beliefs. The court also
highlighted that it is fundamental duty of every Indian citizen, to protect and preserve the
diverse heritage and culture of India. In the case of Aruna Roy v. Union of India27, the court
once again highlighted the importance of religious tolerance and protection of diversity.
The court stressed that these principles should be upheld and preserved at all costs. It is
crucial for students in multicultural communities to receive education that fosters their
ability to acknowledge, embrace, and show respect for societal differences. Additionally,
it is contended that the challenged government notification excludes and undermines the
principles of diversity and tolerance within the classroom environment. Consequently, in
nature and runs afoul of the provisions set forth in Article 21 of the constitution of Sahara.
1.2.9 Nighat is the girl who belongs to the very religious family her father holds the position of
Imam at a nearby Mosque and she wears Hijab since the age of 10.28 A notification issued
by the state of Karunadu and consequential ban of hijab in school premises resulted in the
drop out from the college. In this case the fact that her father restricted her further education
implies that it was essentially part of their conscientious belief that it was necessary for the
girl to wear hijab.29 In the case of Bijoe Emmanuel & Ors. v. State of Kerala & Ors.30
where three children were made to leave the school solely on the basis that the singing of
national anthem was against their conscientiously held belief but court held this act of
school is violation of student’s Fundamental right to freedom of conscience and freely to
profess, practice and propagate religion and thus, was held not equivalent to disrespect of
National Anthem because they show respect to the anthem by standing. The same applies
in this case it is against Nighat and other Sahabi community women’s Fundamental right
who are wearing hijab and it became part of their conscientious belief and state by their
arbitrary action impeding them to go for education at the cost of their conscientiously held
belief.
1.2.10 Whenever the Fundamental Right to freedom of conscience and to profess, practice and
propagate religion is invoked, the act complained of as offending the fundamental Right

27
Aruna Roy v. Union of India, (2002) 7 SCC 368.
28
Supra Note 15.
29
Moot preposition ¶ 4.
30
Bijoe Emmanuel & Ors. v. State of Kerala & Ors (1986) 3 SCC 615.

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must be examined to discover whether such act is to protect public order, morality and
health, whether it is to give effect to the other provisions of Part III of the Constitution
whether it is authorized by a law made to regulate or restrict any economic, financial,
political or secular activity which may be associated with religious practice or to provide
for social welfare and reform. It is the duty and function of the Court so to do. Here in this
case the hijab ban in school premise is not to protect public order, morality or health as
wearing Hijab is not in any way disturbs public order, morality and Health. The Hijab ban
in educational institution not in any way provides for social welfare and reform. However, it is
going against the societal norms of particular community which is in this case of Sahabi.

1.3 Notification issued is ultra vires the act and rules.

1.3.1 In the specific case under consideration, a notification issued on February 5, 2021, to
prohibit the wearing of hijab in school premise, and this ban was enforced on February 17,
2021,31 affecting students who wore hijab. However, this action was taken without
following the required procedures outlined in Rule 1132. Rule 11 mandates that when
changing the uniform or dress code, educational institutions must notify the parents in
advance and wait for at least one year before implementing the change. In this case, these
requirements were not met. Additionally, obligation to establish a Parent-Teacher
Committee33, which plays a role in addressing complaints and fostering a positive
relationship between parents and the school, was not fulfilled as required by the
Notification. Furthermore, the notification applied to both government and private schools,
instructing students to wear a prescribed uniform and refrain from wearing Hijab.34
1.3.2 The challenged government notification blatantly contradicts the principles laid down in
Section 7(2) of the Act35.It fails to promote harmony and the sense of shared brotherhood
when it prioritizes the unfounded objections of certain individuals over the exercise of
fundamental rights by others. Petitioner in the case has been given Hobsons choice either

31
Supra Note 3.
32
Karnataka Education Institution Rules, 1995, Karnataka Gazette Pt. IV sec. 2c (i) (14 November, 1995), Rule 11.
33
Karnataka Education Institution Rules, 1995, Karnataka Gazette Pt. IV sec. 2c (i) (14 November, 1995), Rule 12.
34
Supra Note 31.
35
Karnataka Education Act, § 7, No. 1, Acts of Karnataka State legislature, 1983 (India).

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to educate themselves or to uphold their conscientious belief. As here as a ramification of

issued order Nighat’s father restricted her further education in the college and she had to
drop out of the college.36 Thus it falls within the mischief of being manifestly arbitrary as
per Shayara Bano v. UOI37 case and manifestly arbitrary and violative of Article 14 of the
constitution.
1.3.3 Also, the Section 133 (2) of Karnataka Education Act, 1983, under which impugned
notification has been issued by the State of Karunadu. States that State government has the
power to give direction to educational institution which are necessary for carrying out the
purpose of the act or give effect to any of the provision of the act.”38 Here in this case
banning Hijab is neither serving the purposes of the act, which is described earlier nor
giving effect to any of the provision of the act. As disallowing Hijab is improper act with
respect to the purposes of the act.

1.4 Does not pass “proportionality” test

1.4.1 Respectfully, it is highlighted before the court, that a crucial principle established by the
hon’ble Court in the case of Om Kumar v. Union of India.39 This principle is now
commonly applied in cases involving violations of fundamental rights. In simple terms, the
court Emphasized that limitations on our basic freedoms are subject to a test called
“proportionality”. This means that when assessing whether restrictions placed on our
fundamental rights are lawful, the codes having using this proportionality test since 1950.
It helps ensure that any limitations imposed by government actions are reasonable and
balanced in relation to the rights they affect. Also, In the case of Anuradha Bhasin v. Union
of India40 the Court’s use of the proportionality doctrine served to assess whether the
punishment met it out by the corporation was justified and whether it represented the least
intrusive approach in achieving the intended goal.41

36
Supra Note 29.
37
Shayara Bano v. Union of India, (2017) 9 SCC 1.
38
Karnataka Education Act, § 133, No. 1, Acts of Karnataka State Legislature, 1983 (India).
39
Om Kumar v. Union of India, (2001) 2 SCC 386.
40
Anuradha Bhasin v. Union of India, AIR 2020 SC 1308.
41
Dev Singh v. Punjab tourism Development Corporation Ltd., (2003) 8 SCC 9.

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1.4.2 Applying this legal principal to the current case it becomes evident the administration had
alternative measures at its disposal to maintain discipline among the students. In this
context, it is apparent that the administration had access to alternative measures that were
less severe in nature compared to those actually, and if these less restrictive means had
been utilized, the petitioner’s fundamental rights would not have been violated. In the
present case, it is evident that the government of Karunadu issued and notification with the
aim of promoting discipline and uniformity in schools. However, despite its intended goals
this notification on intentionally resulted in discrimination and violation of students’ rights
as garden by Article 19(1)(a) and Article 25 of the Constitution of Sahara. Consequently,
it can be concluded that the State Government’s actions run afoul of “Doctrine of
Proportionality.’ Thus, violating Article 1442 of Constitution. In taking the drastic decision
to ban the wearing of the Hijab within the campus, the government did not adequately
explore the other possible alternatives that would have satisfied the ‘least restrictive test’.

2. WHETHER WEARING A HIJAB BY SAHABI IS THE ESSENTIAL

RELIGIOUS PRACTICE AS PER SAHABI PERSONAL LAW OR NOT?

It is humbly submitted before the hon’ble Supreme Court that yes wearing of hijab is an essential
religious practice in Sahabi personal law.

2.1 What is Hijab?

2.1.1 Hijab or a veil or headscarf is a piece of clothing worn by Muslim women to cover their
head. It also serves as protection for women from the male gaze, especially from those
unrelated men. In many countries, Muslim women are being recognized for their unique
attire like wearing a black Abaya (loose-fitting full-length robe) and a loose Hijab. For

42
INDIA CONST. art. 14.

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Muslim women, the hijab is important as it serves as an identity that reflects their modesty
and strong beliefs or what is called the ‘Imaan’.43
2.1.2 The history of hijab roots deep. The custom of wearing a hijab or more appropriately the
need for wearing a hijab started even before the birth of Prophet Muhammad. Women were
sexually harassed by men in the holy place of Medina. Hijabs and other head coverings
were worn as a measure of social security. Therefore, the Holy Quran asked the women to
cover their necks and bosom from the bad view of the men.44 In these societies, wearing a
veil was a symbol of a woman's status in society. The veil was a symbol of a woman's high
rank and respectability in Mesopotamia. Women put on the veil to set themselves apart
from slaves and immoral women.

2.2. Quranic Mandate or essentiality of hijab in Quran

2.2.1. The primary intention of the Hijab is to protect women from undesirable attention. And
referring to this, Allah says: “O Prophet, tell your wives and your daughters and the women
of the believers to bring down over themselves of their outer garments. That is more
suitable that they will be known and not be abused. And ever is Allah Forgiving and
Merciful.”45 (Qur’an, Surah Al-Ahzab ). This rule applies to all Muslim women, including
those who were raised in the home of the Prophet, as well as others. When going out, they
were instructed to cover themselves with outer clothing. The goal was to shield women
from violence and abuse, not to limit their freedom. A unique public attire of some kind
has always been a symbol of dignity or distinction, both among men and women, in both
the East and the West. This goes all the way back to the early civilizations.

2.2.2. There is a clear and decisive scholarly consensus on the mandate of the hijab. The reference
to jilbab in the above verse would indicate that the Islamic dress code for women not only
consists of a scarf that covers the head, the neck and the bosom, but also includes the overall
dress that should be long and loose. The word, jilbab in this context should not be
interpreted as modern usage of the word. According to the Lisan al Arab (quintessential

43
Anna Piela, Muslim women and the politics of headscarf, JSTOR (April 6, 2022), Muslim Women and the Politics
of the Headscarf - JSTOR Daily.
44
Shubhanshi Suman, Hijab: A choice or an essential practice? , 2 JCLJ 826, 827 (2022).
45
Holy Quran 33:59.

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Arabic dictionary) jilbab in this context refers to the khimar or headscarf. This verse
specifically states that Muslim women wear the headscarf in order to be known and
recognized as believing women and to be protected.46

2.2.3. ˹O Prophet!˺ Tell the believing men to lower their gaze and guard their chastity. That is
purer for them. Surely Allah is All-Aware of what they do. And tell the believing women
to lower their gaze and guard their chastity, and not to reveal their adornments except what
normally appears. Let them draw their veils over their chests, and not reveal their ˹hidden˺
adornments except to their husbands, their fathers, their fathers-in-law, their sons, their
stepsons, their brothers, their brothers’ sons or sisters’ sons, their fellow women, those
˹bondwomen˺ in their possession, male attendants with no desire, or children who are still
unaware of women’s nakedness. Let them not stamp their feet, drawing attention to their
hidden adornments. Turn to Allah in repentance all together, O believers, so that you may
be successful.47 (Quran Surah An-Nur)

2.2.4. The context in which the verse was revealed must be understood to fully comprehend the
ayah. According to Abu Abdullah Qurtubi, the 13th-century Mufassir (a scholar who
interprets the Quran), women at the time of the revelation wore their headcovers tied back
behind their necks; leaving the upper chest, neck and ears bare as was the practice of the
Christians at the time, as well as exposing the opening (translated as “chests” in the above
verse) at the top of the dress. The Quranic revelation confirmed the practice of covering
the head, understood from the use of the word khimar in the verse, (which means head
covering, which was already in practice) and also explained that the custom of the time
was not sufficient and that women were henceforth to tie the existing headcover in front
and let it drape down to conceal the throat and the dress opening at the top. When one
speaks of the hijab as a cultural practice, indeed, it is a religious-cultural practice that
predates Islam as there is clear evidence that Christian and Jewish women before Islam
wore some sort of head-covering. (The tradition was practiced by Christian women until

46
Ravi Singh Chhikara, If hijab goes away, will all religious clothing go away from educational institutions, TIME
OF INDIA (12 October 2023, 3 Pm), https://timesofindia.indiatimes.com/blogs/ravi-singh-chhikara-opines/if-hijab-
goes-away-will-all-religious-clothing-go-away-from-educational-institutions/.
47
Holy Quran 24: 30-31

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the 20th century.) Islam perfected this practice when Allah (Swt) revealed the above verse,
mandating that the existing head covering was to cover more than just the hair - but the
neck, upper chest and ears as well. Allah (Swt) gave clear reasoning from the ayah (verse)
above as to why Muslims wear hijab - in order to be known.48

2.2.5. The jilbab makes a distinction between free Muslim women and those of Jahiliyyah, letting
other men know that they are not slaves. According to the Holy Quran phrases cited, the
hijab is a requirement for all Muslim women, and they are expected to cover their heads.
When a lady wears a headscarf, she hides her attractiveness. A lady who wears a hijab at
all times is protected by Allah, who uses it as a barrier against all sinful looks.

2.3. Hadith
2.3.1. May Allah bestow His Mercy on the early emigrant women. When Allah revealed: "... and
to draw their veils all over their Juyubihinna (i.e., their bodies, faces, necks and bosoms)..."
(V.24:31) they tore their Murat (woolen dresses or waist-binding clothes or aprons etc.)
and covered their heads and faces with those torn Muruts.49
2.3.2. A’isha reported God’s Messenger as saying, “The prayer of a woman who has reached
puberty is not accepted unless she is wearing a veil.” A veil (khimar) covering the head
and the breasts.50
2.3.3. Therefore, Muslim women wear hijab because the Quran unambiguously orders and
mandates Muslims to do so. The analysis of the Quranic injunctions and the Hadiths would
show that it is an obligatory to cover the head and wear the long-sleeved dress except for
face part and exposing the body otherwise is forbidden (haram). The discussions as above
show that covering the head and wearing a long sleeve dress by women have been treated
as an essential part of the Sahabi religion. As held by Kerala HC in Amnah Bint Basheer
and Another v. Central Board of Secondary Education (CBSE), New Delhi and Another.51 It
also seems to be fundamental to the religion as not wearing the hijab is considered as haram.

48
Furqan Ahmed, Role of Some Indian Muslim Jurists in Development and Reform of Muslim Personal Law in
India, 34 JILI 563, 577 (1992).
49
Sahih al-bukhari, 4758. Book 65, Hadith 280.
50
Mishkat al-Masabih 762, Book 4, Hadith 190.
51
Amnah Bint Basheer v. CBSE, AIR 2016 Ker 115

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Prohibiting women from wearing the hijab against their religious commands would surely
affect their religious faith. Thus, Article 25(1) protects such a prescription of the dress code.

2.4. Essentiality test

2.4.1 The practice of hijab is fundamental to the religion “Surat Al-Nur opens with the verse:
[This is] a chapter which we have revealed and made obligatory and in which we have
revealed clear communications that you may be mindful”52. “Here this clear
communication by the prophet is obligatory. And very evidently the wearing of hijab is being said
in this same Surat Al-Nur same chapter 24 verse 31 which reads as “And say to the believing
women that they cast down their looks and guard their private parts and do not display their
ornaments except what appears thereof, and let them wear their head-coverings over their
bosoms, and not display their ornaments except to their husbands or their fathers”53
2.4.2 Now if this practice is not followed, it would result in the change of the religion itself. It is
contended by the appellant that by looking into the primary sources like holy Quran and Hadith
that Hijab is an essential practice as per Sahabi personal law and believers of Allah. An ultimate
aim of Sahabi devotee is to get forgiveness and reach Jannah. And Quran is the book that teaches
humankind how he needs to live and abide by God's word in order to come closer to him. Now,
if a Sahabi woman doesn’t wear hijab, she’s disobeying god, which will become a reason for her
to not reach Jannah. Somehow not wearing hijab is destroying or changing the religion as a
whole, as the ultimate aim was to obey the command of God. “Chapter 24, verse 30″ Allah
commands Prophet Muhammad as follows: “Say to the believing men that: they should cast down
their glances and guard their private parts (by being chaste). This is better for them.54.

2.4.1. This is an instruction to Muslim males that they should not stare at women (other than their
spouses) with lust; instead, they should gaze downward to avoid any temptation. This is
what is referred to as "hijab of the eyes". Therefore, if the hijab serves as a means of
preventing both men and women from engaging in acts of lust that would prevent them
from reaching Jannah, which is the ultimate goal of Islam itself, we can say that hijab is an
essential religious practice in Islam".

52
Holy Quran 24:1.
53
JLRJS, https://jlrjs.com , Last visited on September 2023.
54
Holy Quran 24:30.

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2.4.2. In order for religion to exist, it must be based on practice or have already existed when
religion first emerged. The practices must come first, not the faith. It must have a strong
connection to that faith. In truth, the practice of women covering their heads during
religious ceremonies predates both Assyrian and Jewish traditions as well as Christian
texts. Essential practices are those that are necessary to uphold a certain religious faith.
Fundamental elements or practices make form the superstructure of religion, without which
there cannot be religion.
2.4.3. Islamic literature emphasizes the importance of the headscarf and sustaining such traditions
for women. Here, the system examined this practice, which is a cornerstone and essential
part of Islam that was mentioned in the Quran and has preserved its history for millennia.
Although wearing a hijab is seen as mandatory in Islam, no one is allowed to make
someone else wear one because doing so will result in that person renunciating their faith.
If a woman does not wear the hijab, it will ultimately alter the core of the faith. However,
as everyone has the right to believe and practice religion in the ways that they see fit, one's
own beliefs won't be affected.
2.5. Modesty & purity
2.5.1. One should know that modesty has been part and parcel of the Islamic culture all through.
Hijab encourages modesty, both physically and spiritually. When a woman covers her head
as per Allah’s command, it is her way of showing her belief in Allah and accepting all his
commands. It makes the connection between the Almighty and that woman stronger. The
clearest verses on the requirement of modest dress are Surah 24:30–31, telling both men
and women to dress and act modestly, with more detail about modest dress focused on
women.55

2.6 Essential religious practice concept under constitution & various judgement:

2.6.1 It is most humbly submitted before the Hon'ble SC of Sahara that in Commissioner, Hindu
Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt56,

55
VIRTUALMOSQUE.COM, Hijab: Fard (Obligation) or Fiction? ( Last visited Oct. 5, 2023).
56
Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt,
1954 SCR 105.

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the court while determining what constitutes essential religious practice held that it is any
activity that constitutes a significant part of the particular religion and is ascertained with
reference to the doctrines of that religion itself. The Hon'ble SC in Haji Ali Dargah
Trust v. Noorjehan Safia Niaz57 observed that that in order that the practices in question
should be treated as a part of religion they must be regarded by the said religion as its
essential and integral part of that particular community.
2.6.2 The present case at hand deals with Art. 25(1)58 and the violation of the individual right
granted by the provision. The ‘essential religious practice test’ has evolved over time by
means of various judicial precedents. Justice Chandrachud in Indian Young Lawyers
Association v. State of Kerela59, opined that “the test should rather be whether a practice
subscribes to the Constitution irrespective of whether it is essential or not.
2.6.3 In Commissioner of Police v. Acharya J. Avadhuta the question regarding Tandava as an
essential religious practice of Hinduism was upheld by the Hon'ble SC as it formed a core
belief in the religion manifesting the Lord Shiva in the purest form. In furtherance of that
the court held that Art. 25 and 26 of the Constitution is not confined to matters of doctrine
or belief but extends to acts done in pursuance of religion and, therefore, contains a
guarantee for rituals, observances, ceremonies and modes of worship which are essential
or integral part of religion.
2.6.4 It is humbly submitted before the Hon'ble Bench that Hijab as a form of symbolic speech
of Sahabi religion is deeply tied to the faith of these women and, has for decades in a row,
acted as a representation of their religion. The Quran itself speaks of wearing outer
garments when women go out so as to distinguish and protect them from getting harassed.
The practice that is so evidently interpreted and has been peacefully, openly and
interruptedly followed for ages cannot be restricted as it eventually becomes an essential
practice of that religion particularly for the people who believe in that faith.

57
Haji Ali Dargah Trust v. Noorjehan Safia Niaz, (2016) 16 SCC 788.
58
INDIA CONST. art. 25, cl. 1.
59
Indian Young Lawyers Association v. State of Kerela (2019) 11 SCC 1.

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2.6.5 Thus, if we take the above premise given by this very court in numerous decisions, we can
safely conclude that Hijab as a practice of Sahabi religion does constitute an essential
religious practice of that religion.

3. WHETHER THE PRACTISE OF POLYGAMY AND NIKAH HALALA

AS PRACTISED BY THE SAHABI IS IN VIOLATION OF ARTICLES
14, 15 AND 21?

3.1 The counsel on behalf of petitioner humbly submits to this Hon’ble Court that practice of
polygamy and nikah halala is clearly in violation of Article 1460, Article 1561 and Article 2162
as these laws have regularly put emphasis on equality, liberty and privacy of an individual,
however these principles of equality ,consciousness and liberty have regularly been infringed
by these age-old customs.
3.2 And here in Nighat’s case itself, she had not only been subject to sorrow and cruelty due to
the daily quarrels and altercation at her home but also was left all on her own after having her
first child, Additionally, her consent was not taken into account by Khizar when he tied the
knot to Tahira63 on 22nd January 2022.Therefore in light of the present case facts,
petitioner(hereinafter, referred to as Khizar) in light of Article 14,15 and 21 and well
established judicial precedents request a nation-wide ban on polygamy and nikah halala.

3.3 Political and Social presence of polygamy in History

3.3.1 Polygamy has a well-documented historical presence in numerous civilizations and

religious traditions. In ancient India, it was legally sanctioned and widely practiced, with
references to multiple wives among kings, nobility, and even priests found in sacred texts
such as the Rig Veda. In Yajur Veda, it is mentioned that though a woman cannot have

60
Supra Note 10.
61
Supra Note 11.
62
Supra Note 17.
63
Moot preposition ¶ 5.

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more than one husband but a man may have two wives.64 The Brahmana period further
confirmed the acceptance of polygamy, as exemplified by notable figures like Yagnakaya,
a renowned seer, who had multiple wives.
3.3.2 Similarly, in biblical and Talmudic times, polygamy was explicitly encouraged and
practiced. Prominent figures such as Prophet Ibrahim, Prophet Yaqub, and Moses are
documented to have had multiple wives. Prophet Dawud (David) had nine wives; Prophet
Sulaiman (Soloman) had one thousand and seven hundred wives and three hundreds slave
girls. Seldon proves in his Uxor Hebracia that polygamy was allowed not only among the
Jews but likewise among all other nations.65
3.3.3 Furthermore, among various Eastern nations, including Iran, Egypt, Greece, Babylon,
Austria, China, and Japan, polygamy was a recognized and socially acceptable institution.
It is evident that polygamy was deeply ingrained in the cultural and legal fabric of these
societies. Native Jews and Christians of Arabia, as also animists and foreigners, all were
generally polygamist.66
3.3.4 In the pre-Islamic Arab society, polygamy was widespread and unregulated, with both
Arab and non-Arab residents freely engaging in multiple marriages. This tradition
continued during and after the advent of Islam, with many of Prophet Muhammad's closest
companions and even his adversary’s practicing polygamy. Among those who did not
accept his mission and message Abu Jehl, Abu Lahab, ‘Utba, Umaiya, Abu al-Bakhtari,
etc. all had a number of wives.67 The historical and legal record demonstrates that polygamy
was an established and culturally accepted practice in numerous societies across the ages,
with its prevalence extending to both religious and secular contexts.
3.3.5 The Prophet of Islam by limiting the number of wives and laying down strict conditions
for having more than one wife at a time had introduced a racial change and reform in the
social conditions of human society. Polygamy is therefore, both checked and regulated in
Islam.68 but since then things have taken a bad turn as self-proclaimed Qazi’s have started

64
Taittriya Samahita, Polygamy among Hindus : A survey in Retrospect, 72 ICLQ 565, 566 (1985).
65
MOHAMMAD MUSTAFA ALI KHAN, POLYGAMY IN ISLAM, 45 (Markazi Maktabalslami, 1996).
66
SYED AMEER ALI, The Spirit of Islam 222 (Kitab Bhavan 1997).
67
Id.
68
Supra Note 65.

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interpreting in their own manner and once which thing was just an option now seems to be
an obligation on an individual.

3.4 Altercation of polygamy and nikah halala with Article 14

3.4.1 One of the major arguments of our topic revolves around Article 14 as it regularly puts
emphasis on ‘equality before law’ which is a negative concept as “ it is a notion implying
absence of any special privileges by reason of birth, creed or the like in favors of any
individual, and also the equal subject of all individuals and classes to the ordinary law of
the land” . Although, in Sahara Land things have been quite different from many years as
Sahabi community which accounts for 15% of the population69 have been taking an undue
advantage of this Article in the name of “equality” and in conclusion the woman of this
community suffers immensely on the name of custom and practice which does not have
any place in codified laws of Shariat70 itself. If an illegality or irregularity has been
committed in favor of any individual or group of individuals , others cannot invoke the
jurisdiction of courts and tribunals to require the state to commit the same irregularity or
illegality in their favor.71
3.4.2 The doctrine of equality before law is a necessary corollary to the concept of the rule of
law.72 It is a declaration of equality of all persons within the territory of India, implying
thereby the absence of any privilege in favor of any individual.73 But in Sahara Land a
particular community norm which is regularly infringing fundamental rights of the citizens
has got an upper hand. In legal terms, when a particular community consistently violates
the fundamental rights of citizens and gains an advantage, it raises concerns about potential
violations of equality, non-discrimination, and the rule of law.
3.4.3 Legal mechanisms, including the judiciary, should intervene to protect and uphold these
fundamental rights and ensure a balance between cultural norms and individual rights. It
means that no man is above the law of the land and that every person , whatever be his rank

69
Moot preposition ¶ 1.
70
The Muslim Personal Law (Shariat) Application Act, No. 26, Acts of Parliament, 1937 (India).

71
State of West Bengal v. Debasish Mukherjee, AIR 2011 SCC 3667.
72
Ashutosh Gupta v. State of Rajasthan (2002) 4 SCC 34.
73
Amita v. Union of India, (2005) 13 SCC 721.

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or religion, is subject to the ordinary law and amenable to the jurisdiction of ordinary
tribunals.74
3.4.4 Fundamental rights, enshrined in constitutions and international agreements, protect
individual liberties like freedom of expression and equal protection. Persistent violations
within specific communities reveal enforcement deficiencies due to institutional inertia,
societal pressures, or systemic biases. In response, the judiciary acts as the guardian of
justice, interpreting and upholding these rights within the legal framework. They play a
pivotal role in rectifying the situation to ensure that the fundamental rights of all citizens
are preserved and respected while maintaining the equilibrium between cultural norms and
individual rights and as a result they should not be singled out for special treatment.75
3.4.5 It is essential to safeguard the interest woman in respect to custom and personal laws
because mostly these are the ones who suffer utmost. The guarantee of equal protection
against substantive law as well as procedural law.76 And if a wrong is committed in an
earlier case, it cannot be perpetuated. In this case of Nighat, The Hon’ble High Court while
quashing our petitioner’s plea mentioned that a custom protected by many judicial
precedents cannot be expunged. I on behalf of my petitioner would humbly submit that ,
the principle that a wrong committed in an earlier case cannot be perpetuated is
fundamental. This means that if an error or wrongdoing occurred in a previous legal
proceeding, it should not be perpetuated or used as a precedent to justify a similar
wrongdoing in a subsequent case. It underscores the importance of rectifying past mistakes
and upholding the integrity of the legal system.
3.4.6 Furthermore, the concept of equality is a well-established legal principle that cannot be
invoked to justify or enforce illegality. In other words, individuals or courts cannot claim
equality as a basis for endorsing or perpetuating unlawful actions.
3.4.7 Instead, the legal system is expected to rectify such errors and ensure that the rule of law
is upheld consistently and without bias, and others cannot invoke the jurisdiction of a
Higher Court for repeating or multiplying the same irregularity or illegality or for passing

74
D.D. BASU, INTRODUCTION TO CONSTITUTION OF INDIA (26th ed. 2022).

75
State of Andhra Pradesh v. Nallamilli Rami Reddy, (2001) 7 SCC 708.
76
Lachmandas v. State of Bombay, (1952) SCR 710 (726).

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a similarly wrong order.77 Thus, if some other similarly situated persons have been granted
relief /benefit inadvertently or by mistake such an order does not confer any legal right on
others to get the same relief as well.78 Further this issue was also discussed in the case of
Manohar Lal Sharma v The Principle Secretary79.
3.4.8 Proceeding foreword in the case of Special Court Bill v. Unknown80 the court mentioned
“whether an enactment providing for special procedure for the trial of certain offences is
or is not discriminatory and violative of Article 14 must be determined in each case as it
arises, for no general rule applicable to all cases can safely be laid down. A practical
assessment of the operation of the law in the particular circumstances is necessary”.

3.5 Privacy concern in Polygamy and Nikah Halala

3.5.1 The concept of privacy has undergone a radical change, synonymous with autonomy or a
state in which one is not observed or disturbed by other people. The recognition of privacy
is deeply rooted in history and religion. “And if you find no other therein, still, enter not until-
permission has been given and if you are asked to go back, go back, for it is purer for you, and
81
Allah is All known for what you do” The Islamic Scriptures recognize the importance of
Privacy. There is recognition of Privacy in the Quran and in the Saying of Prophet
Muhammad (PBUH). "O you who believed enter not houses other than your own until you have
asked permission and greeted those in them, that is better for you, in order that you may
remember"82 The UN declaration of Human Rights, the International Covenant on Civil and
Political Rights and many other International and Regional treaties recognized Right to
Privacy as one of the fundamental humans right. The uniqueness of the individual, his self
being, his basic dignity and his worth being as a human being in a central and primary
belief of every democratic society. And that is why the Quran recognizes the need for

77
Basawaraj v. The Special Land Acquisition Officer, AIR 2014 SC 746.
78
DR. J.N. PANDEY, CONSTITUTIONAL LAW OF INDIA 85 (59th ed. 2022).

79
Manohar Lal Sharma v. The Principal Secretary, AIR 2001 SC 3667.
80
Special Court Bill v. Unknown, AIR 1979 SC 478.
81
Holy Quran 24:28.
82
Holy Quran 24:27.

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privacy or a Human right and lays down rules for protecting an individual’s life in the home
from undue intrusion from within or without.83
3.5.2 Article 21 of the Constitution is regarded as the most sacred and fundamental right,
enshrining the right to life and personal liberty. It has been argued that the practice of
Halala infringes upon this cherished right, particularly by undermining the inherent dignity
of women, which is an essential facet of Article 21's protection. Nikah Halala is argued to
contravene Article 21 by depriving women of basic rights, including information about
divorce and access to property and children. The arbitrary nature of this practice often
leaves women powerless, raising concerns of unfairness and unconstitutionality. In
essence, it's contended that Nikah Halala conflicts with Article 21's principles of dignity,
fairness, and individual rights.
3.5.3 The Halala practice, as it is commonly understood, can be seen as inconsistent with Quranic
principles, as it often involves a woman being used as a means to an end, primarily for
gratifying the desires or ego of others. This is seen as contrary to the principles of justice
and fairness espoused by both the Quran and the Constitution of India84.
3.5.4 The Muslim Personal Law being a domain which remains unscathed by the legislature to
a great extent . But in 2011, the Bhartiya Muslim Mahila Andolan85 hereinafter referred to
as the BMMA, created a stir in the Muslim community when the organization sent a letter
to the president of the All -India Muslim Personal Law Board regarding the sufferings of
the Muslim women resulting due to ‘Halala. The cases brought to attention by the BMMA
shed light on the adverse aspects of the practice of Halala. These instances entailed women
who underwent the Halala process repeatedly, sometimes up to seven or eight times, solely
due to their husbands' arbitrary pronouncement of talaq. These pronouncements occurred
when the husbands were annoyed, under the influence of alcohol, or in response to

83
Samridhi Sikha Das, Akhil Dixit, Nikah Halala: A Legalized Sin, 5 PEN ACCLAIMS, 1, (2019),
http://www.penacclaims.com/wp-content/uploads/2019/02/Samridhi-Sikha-Das.pdf.

84
Id.
85
Dr G.Jambu, Socio-Economic status of a woman, A study in Warangal District in Telangana State; 3 HUM. RTS.
INT’L RES. J. 24, 24-27, (2014).

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employment or loss. The woman said they felt like prostitutes who were forced to bear
husbands for one night so as to get back to their first husband86
3.5.5 The Quran clearly says that ‘Allah curses the one who marries to make a woman Halal for
her husband, and the one for whom this is done (i.e., the first husband and the woman).87
3.5.6 In the eyes of the law, every individual is considered equal, regardless of their gender or
religious affiliation. However, in the context of Nikah Halala, a practice predominantly
affecting Muslim women, a significant disparity emerges concerning the right to divorce.
Consequently, the wife is compelled to endure the distressing experience of consummating
a new marriage solely for the purpose of obtaining a divorce from her new husband, a
practice inherently infringing upon the Muslim wife's right to equality.88
3.5.7 In contrast, the process for a Muslim wife to seek divorce often necessitates her to approach
a Qazi (Islamic judge) and substantiate the grievances and injustices committed by her
husband. This stands in stark contrast to the husband's ability to exercise the practice of
triple talaq, which grants him unlimited and absolute authority to instantly divorce his wife,
even in the absence of just or reasonable cause.
3.5.8 While marriage is encouraged in virtually all religions, the Holy Quran permits Muslim
women to choose their spouses. However, in practice, it is observed that many women may
not have full independence in selecting their partners, as family elders often play a
significant role in choosing a suitable groom, with the woman's agreement not being
sought. In this context, Islamic law recognizes and upholds the rights to privacy of Muslim
women, particularly concerning matters related to marriage.
3.5.9 It is inevitable for every society to impose certain requirements on individuals brough by
law and by the societal norms.89 Polygamy affects the community very badly and magnifies
the problem to the children who are the creations of such illegal marriages. Due to this

86
Saumya Parmarthi, Manu Gupta, Our Nation and Its Women, HUM. RTS. INT’L RES J. 34, 37 (2014).
87
Priti Sharma, Nishant Pal, Transgender in India: Alimented from the Society, , HUM. RTS. INT’L RES J. 58, 59
(2014).
88
Supra Note 83.
89
Vidushi marda and Bhairav Achary, Identifying aspects of privacy in Islamic law, CIS-ORG, (14 December
2014), http://cis-india.org/internet-governance/blog/identifying-aspects-of-privacy-in-islamic-law.

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practice children are not getting proper education and supervision, so their future seems
bleak.90
3.6 Scholars on Islamic verses of Quran related to polygamy and nikah halala
3.6.1 In the Holy Quran, the matter of polygamy is explicitly addressed in two verses found
within Chapter IV, entitled "The Women" (Surah Nisa). In addition to these specific verses,
there are other Quranic verses of significance that contribute to the Quran's stance on the
issue of polygamy. When these verses, taken together, form the foundational basis for
understanding the Quranic perspective on the practice of polygamy are :-
3.6.2 “If ye fear that ye shall not be able to deal justly with the orphans, marry women of your
choice, Two, or three, or four; But if ye fear that ye shall not be able to deal justly (with
them). Then only one, or (a captive) That your right hands possess. That will be more
suitable. To prevent you from doing injustice.”91 “Ye are never able to be fair and just as
between women even if it is Yours ardent desire : But turn not away (From a woman)
altogether. So as to leave her (as it were) Hanging (in the air). If ye come to a friendly
Understanding, and practice Self-restraint, God is Oft-Forgiving, Most Merciful.”92
3.6.3 The best known among Indian interpreters of the Holy Quran ‘Abdullah Yousaf Ali says:
“Notice the conditional clause about orphans, introducing the rules about marriage. This
reminds us of the immediate occasion of the promulgation of this verse. It was after the
Battle of Uhad when the Muslim community was left with many orphans and widows and
some captives of war. Their treatment was to be governed by the occasion is past but the
principles remain. Marry the orphans if you are quite sure that you will in that way protect
their interests and their property with perfect justice to them and your own dependents if
you have any. If not, make other arrangements for the orphans … The unrestricted number
of wives of the “times of ignorance” was now strictly limited to a maximum of four
provided one could treat them with perfect equality in material things as well as in affection

90
Sikha Mishra, Crucial Exploration of whether Polygamy is Lawful in Republic India, 1 JCLJ 525, 526-528
(2021).
91
Holy Quran, IV:3.
92
Holy Quran, IV:129.

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and immaterial things. As this condition is difficult to fulfil, it is a clear recommendation

towards monogamy.”93
3.6.4 Another noted scholar and jurist of recent times Abul ‘Ala Maududi says: “It should be
noted that this verse was not sent down to permit polygamy, for polygamy was already
considered lawful in Arabia and the Holy Prophet (PBUH) himself had more than one wife
when this verse was revealed. The real object of its revelation was to help solve the problem
of the orphaned children of Muslims who fell martyrs in the Islamic battles.
3.6.5 Thus, the first verse in Chapter IV : 3 appears to permit polygamy while the second verse
in Chapter VI : 129 seems to caution against the hazards of multiplicity of wives. It lays
down strict condition for treating all the wives with equal fairness and if one has reasons
to fear that they cannot be treated with equal fairness then one should marry only one.
Therefore, both the verses must be read together in order to assess correctly the intention
of Law-Giver. Therefore, the options for addressing this issue include either prohibiting
polygamy altogether, implementing stringent regulatory measures, or ensuring that the
decision to take a second wife is not solely within an individual's discretion. Hence, legal
intervention is imperative in addressing this matter effectively. Further it could attract
punishment under Section 494 and 495 of IPC94

3.7 Judicial Pronouncements against Polygamy

3.7.1 There is no legislation in the country restricting their rights in this regard, but some of these
beliefs and practices have been subjects of judicial decisions.95
3.7.2 In the case of Badruddin v Aisha Begum96 while deciding the case of polygamy, Allahabad
High Court held that “ Though the personal law of Muslims permitted having as many as
four wives but it could not be said that having more than one wife is a part of religion.
Neither it is made obligatory by religion nor is it a matter of freedom of conscience. Any
law in favor of monogamy, thus, does not interfere with the right to profess, practice and

93
Abdullah Yusuf Ali, HOLY QURAN (3rd ed. 1954).
94
PEN. CODE., § 494.
95
DR. TAHIR MAHMOOD, MUSLIM LAW IN INDIA AND ABROAD (2nd ed. 2016).
96
Badruddin v. Ayisha Begum, 1957 All LJ 300.

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propagate religion and does not involve any violation of Article 25 of the Indian
Constitution.”
3.7.3 In Sarla Mudgal v. Union of India97 court held that “The polygamy can be superseded by
the State just as it can prohibit human sacrifice or the practice of Sati in the interest of
public order.” The court further held that “The personal law operates under the authority
of the legislation and not under the religion and, therefore, the personal law can always
be superseded or supplemented by legislation.”
3.7.4
R.A. Pathan v. Director of Technical Education 98 In this case the Gujarat High Court after
having analyzed in depth the tenets of Muslim personal law and their base in religion held:
A religious practice ordinarily connotes a mandate which a faithful must carry out. What
is permissible under the scripture cannot be equated with a mandate which may amount to
a religious practice. It was further held by the court that there is nothing in the extract of
the Quranic text that contracting plural marriages is a matter of religious practice amongst
Muslims. Therefore, a bigamous marriage amongst Muslims is neither a religious practice
and nor a religious belief and certainly not a religious injunction or mandate. Therefore,
the question of attracting Articles 15(1), 25(1) or 26(b) to protect a bigamous marriage and
in the name of religion does not arise
3.7.5 The number of Halala marriages has suddenly increased to alarming numbers. The women
in Halala have also reported abuse at the hands of their husbands99 These women are
sometimes compelled to undergo Halala, even with their close relatives, and as per Kamal
Khan, a journalist with NDTV based in Lucknow, his report indicates a growing prevalence
of the Halala service business. In his report, Khan notes that a cleric in Akbarpur has
inherited a profitable enterprise from his father, wherein he officiates both marriage and
divorce ceremonies and he further tell the business keeps on increasing.100
3.7.6 A disturbing exploitation of Muslim personal law is currently occurring somewhat
covertly, without much public scrutiny. According to a report by India Today, Islamic

97
Sarla Mudgal v. Union of India (1995) 3 SCC 635.
98
R.A. Pathan v. Director of Technical Education, (1981) 22 GLR 289.
99
Mrs. Sabah Adnan Sami Khan v. Adnan Sami Khan, 2010 (112) BOMLR 1409.
100
Dhaval Kulkarni, Muslim Groups Plan to Meet Prime Minister Narendra Modi for Abolition of Regressive
Personal Laws, DNA, (Oct. 5, 10 pm), http://www.dnaindia.com/mumbai/rep.

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scholars are allegedly charging significant sums for engaging in one-night stands with
divorced Muslim women who seek to restore their marriage through a controversial
practice known as "nikah halala." These scholars are reportedly in high demand and
demand fees ranging from Rs 20,000 to Rs 1,50,000 for their involvement in nikah halala.
During encounters with an undercover team from the channel, some of these scholars
seemingly boasted about their participation in this practice. One scholar, who is reportedly
married, even claimed that he does not need to seek his wife's consent to engage in Nikah
Halala.
3.7.7 The Muslim Law permits marrying four women. The personal law nowhere mandates or
dictates it as a duty to perform four marriages. No religious scripture or authority has been
brought to our notice which provides that marrying less than four women or abstaining
from procreating a child from each and every wife in case of permitted bigamy or polygamy
would be irreligious or offensive to the dictates of the religion.101
3.7.8 In conclusion, the Quranic verses in question appear to advocate for the limitation of
polygamous practices and emphasize the imperative of just treatment towards multiple
wives, thereby discouraging any mockery of this divine directive. Referring to reforms by
several Islamic countries, including those have overwhelming Muslim population, the Centre said
Pakistan, Bangladesh, Afghanistan, Morocco, Tunisia, Turkey, Indonesia, Egypt and Iran have
undertaken significant reforms and the practices of instant triple talaq or automatic polygamy at
will is not permitted in most of these countries.102
3.7.9 Therefore, I humbly on behalf of petitioner submit to the apex cut in view of the above arguments
to make the laws of polygamy and nikah unconstitutional under Article 14,15 and 19.

101
Javed v. State of Haryana, (2003) 8 SCC 369.
102
Dr Ilmana Fasih, Samra’s story: When marital abuse did not break her, THE EXPRESS TRIBUNE (Oct. 9,
2023), http://blogs.tribune.com.pk/story/17620/samrasstory-when-marital-abuse-did-not-break-her/.

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PRAYER

In light of the facts stated, arguments advanced and authorities cited, the Petitioner, humbly
prays before the Hon’ble bench of Supreme Court of Sahara, to adjudge and declare that:

1. Notification issued on 5th February 2021 by the State of Karunadu is unconstitutional for
being violative of the provisions of the Constitution of the Republic of Sahara. Thus,
Nighat along with other Sahabi women should be allowed to wear the prescribed uniform
along with Hijab.
2. Hijab should be accepted as essential religious practice under Sahabi personal law and
should get protection under Article 25 and 26 of the constitution of Sahara.
3. The practice of polygamy under the personal law of Sahabi community should be declared
unconstitutional as it is violative of Article 14, 15 and 21 of the Constitution of Republic
of Sahara.
4. The Second marriage between Nighat and Khizar should stand valid and the concept of
Nikah Halala should be declared void and unconstitutional as it infringes the fundamental
rights of our constitution under Article14 , Article 15 and Article 21 of the Constitution of
Sahara.

The Court may also be pleaded to pass such other order as it may deem fit.

All of which is most humbly prayed.

(COUNSELS ON BEHALF OF PETITIONERS)

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