UILS Academic Moot, 2016

IN THE HONBLE FAMILY COURT OF ABC CITY

IN THE MATTER OF:

Ms. SUZANNA. PETITIONER

VERSUS
Mr. ROHIT. RESPONDENT

Petition Under Section 7 of the Family Courts Act, 1984 R/W

Section 19 of the Hindu Marriage Act, 1955

ON SUBMISSION TO THE FAMILY COURT

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT

Most Respectfully Submitted

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TABLE OF CONTENTS

INDEX OF REFERENCES.........................................................................................................................3

LIST OF ABBREVIATIONS......................................................................................................................4

STATEMENT OF JURISDICTION............................................................................................................5

STATEMENT OF FACTS...........................................................................................................................6

ISSUES RAISED........................................................................................................................................7

SUMMARY OF ARGUMENTS.................................................................................................................8

ARGUMENTS ADVANCED......................................................................................................................9

A. WHETHER THE MARRIAGE BETWEEN THE PETITIONER AND RESPONDENT VALID

UNDER THE HMA, 1955 OR NOT?.....................................................................................................9

1. That the petitioner does not fall under the definition of a hindu as provided under section 2 of
the hindu marriage act.........................................................................................................................9

2. That the marriage does not fulfill the essential of a valid marriage as provided under section 5
of the HMA, 1955..............................................................................................................................10

3. That the marriage which took place by the exchange of garlands on 14th March 1992 between
the parties was not a valid marriage as all the necessary ceremonies did not take place to constitute a
Hindu marriage..................................................................................................................................13

B. WHETHER PETITION FILED BY THE PETITIONER UNDER SECTION 9 OF HMA,1955 IS

MAINTAINABLE OR NOT?................................................................................................................15

1. That all the esentials of a valid marriage have not been fulfilled by the parties.............................15

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

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INDEX OF REFERENCES
STATUTES REFFERED:

1. Hindu Marriage Act, 1955

2. Family Courts Act, 1984
3. Indian Evidence Act, 1872

CASES REFFERED:

Aloke Kr. Sirkar v. Ganapati Venkeeta Krishnan

Jeeta @ Jitendra vs. State (Rajasthan)

Kumar Vinod Vs Central Board Of Secondary Education And Another

Saraswathi vs Thirupathi

BOOKS REFFERED:

1. Paras Diwan, Peeyushi DiwanModern Hindu Law Allahabad Law

Agency (2013)
2. Mayne, "Hindu Law And Usage" Bharat Law House, New Delhi

1.

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LIST OF ABBREVIATIONS
1. HMA Hindu Marriage Act
2. AIR All India Reporter
3. HC High Court
4. SC Supreme Court
5. OLR Orissa Law Reporter
6. NOC Notes on Case
7. Pg. Page
8. Ors. Others
9. Cal. Calcutta
10. All. Allahabad
11. Anr. Another
12. Del Delhi
13.RCR(CRIMINAL) Recent Criminal Reports

STATEMENT OF JURISDICTION
The present petition has been filed by the petitioner under section 9 of the Hindu Marriage Act,
1955 for restitution of conjugal rights. The respondents accept the jurisdiction of this Hon'ble
court and dont refute the same.

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STATEMENT OF FACTS
It is respectfully showeth :

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1) That the parties got married in a temple near Khandala by exchange of garlands on 14th
March 1992 and the petitioner started residing with the respondent and respondents
mother.

2) That the petitioners mother-in-law ill treated her because the marriage between the
parties was not an arranged marriage and was not according to the ceremonies.

3) That the parties went to Tirumala and had undergone all the ceremonies to solemnize the
wedding in Tirumala Purohit Sangam Hall on 3rd October, 1992.

4) That the respondent under the pressure of mother deserted the petitioner in March, 1993
and they have been living separately since then.

ISSUES RAISED
A. Whether the marriage between the petitioner and respondent valid under the
HMA, 1955 or not?
1. That the petitioner does not fall under the definition of a hindu as provided
under section 2 of the hindu marriage act.

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2. That the marriage does not fulfill the essential of a valid marriage as provided
under section 5 of the HMA, 1955.

B. Whether petition filed by the petitioner under Section 9 of HMA, 1955 is

maintainable or not?

1. That all the essentials of a valid marriage have not been fulfilled by the parties.

SUMMARY OF ARGUMENTS
A. Whether the marriage between the petitioner and respondent valid
under the Hindu Marriage Act, 1955 or not?

It is most humbly submitted that the marriage which took place between the parties, first
as contented by the petitioner first on march 14, 1992 and then again on 3 rd October 1992
is not a valid marriage under the provisions of Hindu Marriage Act 1955 and thus the
present petition for the restitution of the conjugal rights is not maintainable under the
ambit of hindu marriage act. This argument is based on the following contentions.

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B. Whether petition filed by the petitioner under section 9 of hindu

marriage act, 1955 is maintainable or not?
That it is most humbly submitted before this Honble curt that the petition is non-maintainable
before this Honble court under section 9 of HMA, 1955. It is humbly submitted that all the
essentials required for a valid marriage under the HMA, 1955 have been contented in the
above issue and thus the marriage between the parties is not a valid marriage under
HMA, 1955.

ARGUMENTS ADVANCED
A. WHETHER THE MARRIAGE BETWEEN THE
PETITIONER AND RESPONDENT VALID UNDER THE HMA,
1955 OR NOT?

It is most humbly submitted that the marriage which took place between the parties, first as
contented by the petitioner first on march 14 1992 and then again on 3 rd October 1992 is not a
valid marriage under the provisions of Hindu Marriage Act 1955 and thus the present petition for

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the restitution of the conjugal rights is not maintainable under the ambit of Hindu Marriage Act.
This argument is based on the following contentions.

1. That the petitioner does not fall under the definition of a Hindu as
provided under section 2 of the Hindu Marriage Act

It is most humbly submitted that the petitioner does not fall under the definition of a hindu as
provided under the section 2 of Hindu Marriage Act 1955.

That it is submitted that the petitioner is a Christian. Section 2 of HMA, 1955 expressly provides
that a Christian does not fall under the definition of a Hindu and thus Hindu marriage act is not
applicable on a Christian. In the ambit of the instant case in, it is pertinent to mention that the
respondent submitted an affidavit tendered by the petitioner for securing an employment. The
contents of the affidavit which was submitted by the respondent clearly state that the petitioner is
a Christian and on this basis she applied for a job. It is submitted that though an affidavit cannot
be considered as an evidence by the hon'ble court but it is imperative to bring to the light of court
that an evidence by a party while securing a job is an admission under the definition of section
18 of the Indian evidence act. It argued before this hon'ble court that considering the fact that an
affidavit is an admission it applies as estoppels and thus is conclusive in nature. For this purpose
it is necessary to reproduce section 31 of the Indian evidence act which states as follows:
submitted that in view of the provisions of section 31 of the Evidence Act, such admissions may
not be conclusive proof but they may operate as estoppels and there is evidenciary value of such
admissions.

The above contention has been upheld in the case of Aloke Kr. Sirkar v. Ganapati Venkeeta
Krishnan by the hon'ble High Court of Calcutta.

2. That the marriage does not fulfill the essentials of a valid marriage as

provided under section 5 of the HMA, 1955

It is humbly submitted before this hon'ble court that the marriage does not fulfill the
conditions of a valid marriage as provided under section 5 of the HMA, 1955 and thus the

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petition of restitution of conjugal rights is not maintainable before this hon'ble court.
Section 5of the HMA, 1955 provide as follows:

Conditions for a Hindu marriage. - A marriage may be solemnized between

any two Hindus, if the following conditions are fulfilled, namely

(i) Neither party has a spouse living at the time of the marriage;

(ii) At the time of the marriage, neither party

(a) is incapable of giving a valid consent to it in consequence of unsoundness of

mind; or

(b) though capable of giving a valid consent, has been suffering from mental disorder
of such a kind or to such an extent as to be unfit for marriage and the procreation of
children; or

(c) has been subject to recurrent attacks of insanity

(iii) the bridegroom has completed the age of twenty-one years and the bride, the age
of eighteen years at the time of the marriage;

(iv) the parties are not within the degrees of prohibited relationship unless the custom or
usage governing each of them permits of a marriage between the two;

(v) the parties are not sapindas of each other, unless the custom or usage governing each
of them permits of a marriage between the two;

That it is most humbly submitted that this marriage which took place between the parties
is not a valid marriage under HMA. Under the provision of section 5 of HMA this
contention is based on the following arguments.

2.1. That the petitioner had a living spouse at the time of her second alleged marriage
with the respondent

It is humbly submitted that the petitioner had a living spouse at the time of her second alleged
marriage on 3rd October 1992. It is imperative to bring to the notice of this Hon'ble court that the

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respondent had submitted a birth certificate of an issue born out of the first subsisting marriage
of the petitioner. This birth certificate submitted by the respondent stated that the petitioner gave
birth to a male child 3 years prior to 14th march 1992 and husband's name was mentioned as
George. This fact clearly points out to the contention that she had a subsistent marriage at the
time of her alleged second marriage. In a celebrated judgment passed by the hon'ble Punjab and
Haryana high court titled as Kumar Vinod Vs Central Board Of Secondary Education And
Another1 it was observed that ..that the birth certificate issued under Section 12 of the
Registration of Births and Deaths Act, 1969 (hereinafter referred to as the "Act"), is admissible
in evidence under the Indian Evidence Act, 1872 (hereinafter referred to as the "Evidence Act")
for the purpose of proving the birth to which the entry relates.

Similar view was also held by the Rajasthan High Court in the case of Jeeta @ Jitendra vs. State
(Rajasthan)2. The entry of the date of birth in the Birth Certificate issued by Registrar (Birth and
Deaths) is a primary evidence.

..as per Section 74 of the Evidence Act, the birth certificate is a public document and as
per Section 76 of the Evidence Act, a certified copy of the public document can be issued by the
public officer having the custody of the such public document, which is presumed to be genuine
in terms of Sections 79 and 80 of the Evidence Act.

Thus it is argued that the second alleged marriage does not constitute this essential of valid
marriage as the petitioner had a spouse living at the time of her second marriage thus the petition
of restitution of conjugal rights is not maintainable before this honorable court.

The contention of the respondent that the petitioner was married to one George holds no ground
and is without any proof. The respondent submitted a birth certificate indicating that the
petitioner gave birth to a male child 3 years prior to 14 th March 1992 bearing father name as
George.

2.2. That the respondent was incapable of giving a valid consent on the marriage
which took place on 3rd October 1992
1 CWP No.13099 of 2013

2 2010(3) R.C.R.(Criminal) 608

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It is humbly submitted that the marriage which took place between the respondent and the
petitioner on 3rd October 1992 was not a valid marriage as the respondent did not have a
free consent for the marriage which took place between them. It is imperative to state
here that to constitute a valid marriage between two parties it is essential that both the
parties have free consent to marriage. The meaning of free consent to marriage has been
provided under section 5(ii) which has been reproduced above in the written submission.
In the ambit of the present case when the marriage took place between the parties the
respondent was in the drunkard state unable to understand the nature of his act and was
made to marry the petitioner taking advantage of the situation. This fact goes on to prove
that his consent was not free consent and it is hit by section 5(ii) (a) of the Hindu
marriage act which states that free consent is a consent which is given by a person of
sound mind and not by a person of unsound mind.

It is submitted that this unsoundness of mind as defined under section 5(ii) (a) has to be
construed in a wider sense and its meaning should not only be restricted to lunacy or
insanity.3 It is further submitted that a Hindu marriage is a both sacrament and the
contract. This law has been reiterated by the supreme court in a plethora of judgments,
section 7 of the HMA gives it a form of sacrament whereas section 5 gives it a form of
contract.4

It is contented that since Hindu marriage is also a contract thus the provisions of a valid
contract are applicable to it. Since unsoundness of mind is not defined under HMA it is
necessary to point out towards the intention of legislature while framing this section, this
section was introduced as an amendment to the HMA in the year 1976 by marriage laws
amendment act 1976, the scope of this section has been increased and thus it can be
reasonable to equate this section with the principle of free consent as provided under the
Indian contract act 1872. In the Indian Contract Act 1872 a person cannot enter into a
valid contract if he is of unsound mind. Unsoundness of mind includes intoxication while
entering into a contract.

3 Mayne's Hindu Law And Usage 12 Edition, Bharat Law House Chapter 6, page 168

4 Mayne's Hindu Law And Usage 12 Edition, Bharat Law House Chapter 5, page 165

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Thus it is submitted before this court that this marriage is not a valid marriage as it is
against the provisions of Hindu Marriage act 1955.

3. That the marriage which took place by the exchange of garlands on

14th March 1992 between the parties was not a valid marriage as all
the necessary ceremonies did not take place to constitute a Hindu
marriage.

It is humbly submitted that the marriage which was performed on 14th of march 1992 was not a
valid marriage under the section 7 of Hindu marriage act.

That the Section 7 of HMA states as under:

Ceremonies for a Hindu marriage.

(1) A Hindu marriage may be solemnized in accordance with the customary rites
and ceremonies of either party thereto.

(2) Where such rites and ceremonies include the saptpadi (that is, the taking of
seven steps by the bridegroom and the bride jointly before the sacred fire), the
marriage becomes complete and binding when the seventh step is taken.

It is pertinent to bring to light that a valid marriage is solemnised if the ceremonies take place
according the customary law of a particular community which professes hinduism or by
saptawadi when the seventh round is completed around the holy fire. In the ambit of the present
case it is argued that on 14th of march 1992 the ceremony of saptawadi did not take place only
garlands were exchanged. Exchanging of garlands cannot also fall under a customary Hindu
marriage in this case as this practice is a community centric practice. The fact sheet is silent on
the community to which parties belong and also on the ceremonies followed by their community
for the customary marriage. It is imperative to submit in this regard that Suzanna is a Christian
and thus in any case these rules will not apply on the petitioner, as the petitioner would be
governed by the principles of Christian marriage act or specific marriage act.

It is also submitted that this marriage would not be valid as no authentic evidence has been
submitted by the petitioner and it is a baseless allegation. There was no marriage certificate

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entered between the parties and even there were no photographs of the alleged incidence thus the
petitioner has grossly failed to discharge her burden of proof.

In Saraswathi vs Thirupathi on 24 September, 2014 the hon'ble madras high court observed that
" Suppose the marriage is between the accused, a Hindu and another person professing
Christianity, it shall not be enough to prove that he tied thali or they exchanged garlands or
exchanged rings or made declarations as provided in Section 7-A of the Hindu Marriag Act,
1955, because marriage between two persons when at least one of them is a Christian shall have
to be solemnised either in accordance with Christian Marriage Act or under the Special Marriage
Act. In such cases, even if the marriage is solemnised observing all the customary rites of Hindu
marriage, the marriage shall not be valid."

B. WHETHER PETITION FILED BY THE PETITIONER

UNDER SECTION 9 OF HMA, 1955 IS MAINTAINABLE OR
NOT?

That it is most humbly submitted before this Honble curt that the petition is non maintainable before this
Honble court under section 9 of HMA, 1955.

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That the section 9 of HMA states as under:

Restitution of conjugal rights. When either the husband or the wife has, without
reasonable excuse, withdrawn from the society of the other, the aggrieved party
may apply, by petition to the district court, for restitution of conjugal rights and
the court, on being satisfied of the truth of the statements made in such petition
and that there is no legal ground why the application should not be granted, may
decree restitution of conjugal rights accordingly.

Under the provision of section 9 of HMA this contention is based on the following
arguments:

1. That all the essentials of a valid marriage have not been fulfilled by
the parties.

It is humbly submitted that all the essentials required for a valid marriage under the
HMA, 1955 have been contented in the above issue and thus the marriage between
the parties is not a valid marriage under HMA, 1955.

PRAYER
Wherefore in light of issues raised, arguments advanced, reasons given and authorities cited, it is
humbly prayed before this Honorable District Court may be pleased to hold, adjudge and
declare:

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That the petition for restitution of conjugal rights filed by the petitioner be dismissed as
the marriage alleged between the respondent and the petitioner is not a valid marriage
under the Hindu marriage act.

That the respondent be paid litigation expenses up to the amount of Rs 20,000 on

account of harassment and agony faced by him.

The Court may in its discretion grant any provisional relief and also make any such order as it
may deem fit in terms of equity, justice and due conscience.

And for this act of kindness the Respondent shall as duty bound ever humbly pray.

Counsel for Respondent

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