yashkapadia (student) 08 September 2014

Muslim law and foster parents case

RESPECTED EXPERTS, PLEASE HELP ME OUT WITH THIS CASE WHICH I AM FIGHTING ON BEHALF OF MAJNU. YOU MAY ENLIST CERTAIN LAWS RELATED TO THIS TOPIC.

Laila, a Muslim residing in the State of Nizami married a Muslim named Majnu on 31st July, 2003. At the time of the marriage, Majnu was already married to Noor and had two daughters with her. Noor at all times dominated and influenced Majnu’s decisions and subsequently convinced Majnu to divorce Laila on 31st January, 2004. On 12th August, 2004, Laila gave birth to a girl and named her Cinderella. Majnu and Noor took forceful custody of Cinderella and denied Laila any access to her on the ground that Laila was mentally unstable. Various requests made by Laila to meet Cinderella fell on deaf ears. On 6th August, 2012, Laila made an application to the Authority under Section 3 of the Act, alleging that Majnu and Noor did not give equal treatment to Cinderella as she was always differentiated from her step sisters and was also forced to do all the household chores. The Authority accepted the application and passed an order placing Cinderella under the foster care of Mr. and Mrs. Kapoor who professed Hindu religion. Aggrieved by the above order, Majnu has filed a writ petition in the Supreme Court of Wonderland inter-alia on the following grounds i) The Act is unconstitutional as it violates the rule of natural justice embodied in Article 14 of the Constitution of Wonderland.

ii) The Act is unconstitutional as it contravenes the fundamental rights guaranteed under Articles 21 and 25 of the Constitution.

iii) The Act is void as it is repugnant to the act made by the Parliament with respect to adoption i.e. The Wonderland Adoption and Maintenance Act, 1956.

The Wonderland Adoption and Maintenance Act, 1956 provides that a Hindu father with the consent of the mother of the child can give the child for adoption and an adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family.

NOTE: The Constitution of Wonderland is in pari materia with the Constitution of India. Petitioners will argue on behalf of Majnu and Respondents will argue on behalf of the State of Nizami.

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Tajobsindia (Senior Partner ) 09 September 2014

In my opinion the moot case questions are itself wrongly drafted to defend Majnu.

Reasoning:

1. Majnu is challenging the "Act" pleading it to be un-constitutional that means S. 3 of the "Act" via which Laila made an Application before the Authorities is un-constitutional. Infact the moot question no. 1 should have been not for the ""Act i.e. S. 3 of the Act"" to be un-constitutional but the 'manner in which the child was placed on foster care' is my view. So the question of law for which SLP (civil) is being admitted in Supreme Court of Wonderland itself is wrongly framed to defend Majnu.

2. In question no. 2 again wrongly framed in Supreme Court of Wonderland as Arti. 21 and Art. 14 are relating to 'natural justice' and the "Act" i.e. S. 3 of the "Act" cannot be said to be un-constitutional. Now moving on to Art. 25 which is mentioned as question herein is again wrong submission as it is subject to public order, morality and health and I don't see how a minor temporarily given on foster care rests bar on free practice and propagation of religion when natural parents are Muslim and are bound by their personal Laws and that covers age of giving minor for adoption too?

3. In question no. 3 Majnu is challenging the "Act i.e. S. 3 of the Act" and pleads it to be made void but I fail to understand Majnu being Muslim is made here in this question refer to Hindu Act of The Wonderland Adoption and Maintenance Act, 1956 (The Act, 1956 in short)? Had he been a Hindu then usage of above cited The Act 1956 could have been used to agitate but it is not the case in hand is my view.

I am sorry I cannot help you with your moot question before me even if I ignore details of the Act "Act i.e. S. 3 of the Act" and or otherwise. The framing of three questions against the backdrop facts of parties are itself wrong is my view even for the purpose of solving some moot questions.

Others may attempt if the three moot question makes any sense to them.