Professional Documents
Culture Documents
IN THE MATTERS OF
MR. MOHANPLAINTIFF
V.
MS. FATIMA...DEFENDANT
TABLE OF CONTENTS
TABLE OF CONTENTS..................................................................................................................i
INDEX OF AUTHORITIES...........................................................................................................ii
SUMMARY OF FACTS.................................................................................................................iv
STATEMENT OF JURISDICTION...............................................................................................vi
ISSUES FOR CONSIDERATION................................................................................................vii
I.
II.
Whether the marriage between Mohan and Fatima in Hindu form valid?...................viii
I.
Whether the marriage between Mohan and Fatima in Muslim form valid?................viii
II.
ARGUMENTS ADVANCED..........................................................................................................1
I.
The marriage between the Plaintiff and Defendant in Hindu form is not valid...................1
A.
B.
C.
D.
II.
The marriage between the Plaintiff and Defendant in Muslim form is not valid................4
A.
B.
There has been conversion to the original religion to which earlier generations had
belonged...................................................................................................................................5
C.
D.
E.
B.
INDEX OF AUTHORITIES
CASES
Abdul Kadir v. Salima, I.L.R. 8 All. 890-------------------------------------------------------------------8
Annjana Devi vs. Prahlad, (1971) 7 Beng LR 243-------------------------------------------------------4
Arun Ghosh vs State of West Bengal, AIR 1989 SC 880-------------------------------------------------2
Atkia Begum v. Mohd. Ibrahim, AIR 1929 All. 18--------------------------------------------------------7
Atkia Begum v. Mohd.Abraham, AIR1978 All. 89--------------------------------------------------------7
HasanKutti v. Jainabha, AIR 1928 Mad. 1287------------------------------------------------------------7
K.P. Manu v. Chairman Scrutiny Community for verification of certificate, AIR 2015 SC 1402- -5
Kulsumbi v. Abdul Kadir, AIR 1921 Bom. 207-----------------------------------------------------------7
Punyabi v. Sugrabi, AIR 2008 M.P.L.J. 112---------------------------------------------------------------6
Rev. Staininslausvs State of Madhya Pradesh, AIR 1977 SC 908--------------------------------------2
Section 2 (1) (a), Hindu Marriage Act, 1955-------------------------------------------------------------2
Subir Kumar Kundu vs. State of West Bengal, (1992), CriLJ 1502-------------------------------------3
Sukram v. MsihriBai, AIR 1979 MP 177-------------------------------------------------------------------8
STATUTES
Article 25 (1), Constitution of India, 1950-----------------------------------------------------------------2
Section 12 (c) Hindu Marriage Act, 1955------------------------------------------------------------------4
Section 2 (1) (a) explanation (c), Hindu Marriage Act, 1955-------------------------------------------2
Section 2 (1) (c), Hindu Marriage Act---------------------------------------------------------------------3
Section 251 of the Principles of Mohammedan Law by Mulla, 17th Edition, 2010.-----------------6
Section 5, (iii), Hindu Marriage Act, 1955----------------------------------------------------------------3
MEMORIAL ON BEHALF OF THE DEFENDANT
SUMMARY OF FACTS
I
Mohans parents converted their religion from Hinduism to Islam as they were discriminated by
other community members on the basis of caste. Mohan used to live with her maternal
grandparents who were Hindu by religion. He from his childhood enjoyed going to Mosque as
well as temple.
II
Mohan wanted to become a Doctor and he applied in Guntur Medical College for the same. He
got himself converted to Hinduism for the sake of the reservation and got admission on a seat
reserved for Scheduled Caste.
III
In his fifth year he met a girl named Fatima who was his neighbor during his childhood. Mohan
loved Fatima but tried to keep himself away as he knew about her fathers position and their
status in society. However, he was not able to keep himself away for long.
IV
Fatima told Mohan that she can convince her Father for marriage as both were Muslims. Mohan
disclosed to her about his conversion and the reason for such conversion. Fatima feared that her
father would disconnect relationship from her as he is a strong follower of Islam.
During winter Fatima went home to her parents, where she realized that her father is planning for
her marriage. She told this to Mohan. Mohan convinced her to marry him and they both got
married in Hindu form. For this Fatima converted her religion to Hinduism
VI
Both of them again got married, but this time in Muslim form to make her father accept this
marriage. Fatima felt guilty about her secret marriage and confessed everything in front of her
father.
VII
Her father advised her that Mohan is not a trustworthy person as his approach is not genuine. He
has changed his religion just to get admission in college. He made her to change her religion for
the sake of marriage. Therefore she stopped all her contacts with Mohan.
VIII
Mohan applied for restitution of Conjugal rights under Hindu Marriage Act, Fatima opposed by
saying that her marriage with Mohan in Hindu form is not valid as she is a Muslim. Then Mohan
claimed that even if their marriage under Hindu form is not valid conjugal rights can be claimed
on the basis of their Muslim marriage. Hence, the matter reached to the Family Court of Guntur.
STATEMENT OF JURISDICTION
The Plaintiff most humbly and respectfully, submits that this Honble Court has the requisite
jurisdiction to entertain and adjudicate this matter under Section 9, 15, 20 of Code of Civil
Procedure, 1908. It is further submitted that all procedural requirements have been adhered to in
the prescribed manner. The present memorandum sets forth the facts, contentions and arguments.
II.
III.
SUMMARY OF ARGUMENTS
I.
Whether the marriage between Mohan and Fatima in Hindu form valid?
Fatima was born in a Muslim family and her father was a strong follower of Islam. Under
emotional threat and pressure Fatima accepted to convert her religion, in order to marry Mohan
under Hindu Law. Hence Fatimas conversion to Hinduism is not valid. Marriage between
Mohan and Fatima took place in a temple situated at Guntur under Hindu customs. It cannot be
held as a valid marriage and must be held void as Fatima was a Muslim by religion and under
Hindu law marriage between Hindu and Muslim is null and void.
I.
Whether the marriage between Mohan and Fatima in Muslim form valid?
Mohan has converted to his original religion to which his family belonged. Moreover he has
been accepted by the community as his reservation certificate was accepted by the college.
Hence, he got converted into Hinduism by taking part in Sudhi ceremony. Mohan first made
Fatima to convert her religion on the basis of emotional pressure and then they both got married
under Hindu form in a temple. Later they also married under Muslim form and a Qazi in Guntur
performed their marriage. However their marriage cannot be termed as valid because Mohan is a
Hindu and marriage between a Hindu and Muslim is null and void.
10
II.
Mohan cannot claim restitution of conjugal rights as both the marriage under Hindu as well as
Muslim Law is void and hence Fatima has reasonable excuse to deny restitution of conjugal
rights.
ARGUMENTS ADVANCED
I.
The marriage between the Plaintiff and Defendant took place in a temple situated at Guntur
under Hindu customs. It cannot be held as a valid marriage and must be held void on following
grounds.
Therefore, the defendants conversion is not voluntary and is based on force and external
pressure. Moreover, the conversion is not based on the defendants religious convictions.
Most importantly, every person has a right to profess his own religion and to act according to it. 2
No one can interfere with the right of other people by resorting to conversion by force, fraud or
allurement.3 If a person intervenes in such a manner, it is a violation of Article 25 (1) of the
Constitution of India, which guarantees religious freedom subject to public order.4
Therefore, holding the defendants conversion to Hinduism valid is a violation of her
fundamental rights.
and was made to undergo a Sudhi Ceremony by use of emotional pressure and allurement of
marriage which does not constitute a valid conversion.
It has been clearly specified that the Hindu Marriage Act does not apply to Muslims. 8 Therefore,
a marriage between a Hindu and Muslim, carried out in a temple under Hindu rituals shall be
termed as null and void as one of the aforesaid parties (Fatima) is not under any obligation to
follow the Hindu Marriage Act.9 To ensure the validity of a marriage between a Hindu and
Muslim, the marriage must be registered, for which a proper notice of intended marriage has to
be provided.10 However, this was not done in the present case.
Therefore, the marriage is neither covered under the Hindu Marriage Act nor the Special
Marriage Act. Hence, their marriage as per Hindu traditions is not a legally recognized one.
In cases where the bride is under 18, the consent of the guardian of the bride is required. 12 In the
present case, the defendants father can be termed as the guardian. 13 However, he never
consented for marriage. Moreover he was against the idea of defendant getting married to
plaintiff.
Since, in the presnt case, the age of the defendant is just 17 years and her father has not given his
consent for her marriage, therefore the marriage can be termed as void under Hindu Law.
14
pressure that she had no option but to give consent for the marriage. In cases where the marriage
is not a voluntary act of the wife then the marriage is liable to be annulled. 15 Defendants consent
was not voluntarily as she was emotionally pressurized by plaintiff into marrying him even when
she did not want to go against the will of her father.
Moreover, the defendant only expressed an initial desire to marry plaintiff because she wasnt
aware of the fact that plaintiff has undergone religious conversion. As soon as she came to know
about the reality she dropped the idea of marriage. Hence, the initial approval was also based on
the fraudulent acts of the plaintiff and is hence, void.
12Mulla, Hindu Law, Satyajeet Desai Ed., 21st ed. 2010 Lexis
13Section 6 (1) (i) Hindu Marriage Act, 1955
14Section 12 (c) Hindu Marriage Act, 1955
15Annjana Devi vs. Prahlad, (1971) 7 Beng LR 243
Hence the marriage between plaintiff and defendant under Hindu form shall be termed as null
and void.
II.
The plaintiff and the defendant also married under Muslim form and a Qazi in Guntur performed
their marriage. However their marriage cannot be termed as valid on following grounds-
16Mulla,
Hindu Law, Satyajeet Desai Ed., 21st ed. 2010 Lexis p.98 ; Varghese George, Casteis
the constant, December 21, 2014, The Hindu, available at http://www.thehindu.com/sundayanchor/conversion-confusion-caste-is-theconstant/article6711442.ece
(accessed February 24, 2016)
17K.P. Manu v. Chairman Scrutiny Community for verification of certificate, AIR 2015 SC 1402
B. There has been conversion to the original religion to which earlier generations had
belonged.
The plaintiff spent most of his childhood with his maternal grandparents who were Hindu by
religion. Moreover, his parents were also Hindu by birth but later converted to Islam as they
were being discriminated against on the basis of their caste. Hence, plaintiff converted to a
religion to which his earlier generations belonged.
18 Ibid
19http://gunturmedicalcollege.edu.in/?page_id=31 (accessed February 21, 2016)
20Section 251 of the Principles of Mohammedan Law by Mulla, 17th Edition, 2010.
21Punyabi v. Sugrabi, AIR 2008 M.P.L.J. 112
22Secton 14 of the Principles of Mohammedan Law by Mulla, 17th Edition, 2010.
23Atkia Begum v. Mohd.Abraham, AIR1978 All. 89
absolutely necessary.24 A marriage without the consent of the parties is not valid. 25 Further,
consent obtained by fraud will invalidate the marriage.26
In the present case, the plaintiff emotionally pressurized the defendant into marrying him. For
this, he first forced the defendant to undergo religious conversion into Hinduism and then for
assurance, he made the defendant marry him under Muslim Law as well. Fatima cannot be held
to have given free consent as she was forced to take part in the marriage under emotional
pressure. Moreover, it is clear from her subsequent conduct that she never wanted to marry the
plaintiff against the will of her father.
Hence, the marriage between plaintiff and defendant in Muslim form is not valid.
III.
Plaintiff cannot claim restitution of conjugal rights as both the marriages are void and the
defendant has reasonable justification of denying the restitution of conjugal rights.
suit for restitution of conjugal rights is of a civil nature within meaning of Section 9 of Code of
Civil Procedure.27
The decision in a suit for restitution of conjugal rights does not entirely depend upon the rights of
the husband. The Court must also consider whether it would make it inequitable for it to compel
the wife to live with her husband.
In the present case, the plaintiff has no right to claim conjugal rights as the marriage itself is
invalid under Mohammedan law. Moreover, the defendant has the right to remain away from
Mohan as he induced her to marry him under emotional pressure. Therefore, the restitution of
conjugal rights in the present matter is inequitable and unfair to the defendant.
Hence, the plaintiff cannot claim the restitution of conjugal rights.
10
11
Pass any other order or grant any other relief in the ends of justice