family law defendent final

32nd ALL-INDIA INTER UNIVERSITY MOOT COURT COMPETITION - 2016

BEFORE THE HONORABLE FAMILY COURT OF GUNTUR, ANDHRA PRADESH

(Section 9, 15, 20 of Code of Civil Procedure)

IN THE MATTERS OF

MR. MOHAN……………………………………………………………PLAINTIFF

V.

MS. FATIMA…………….…………………………………………..…DEFENDANT

ON BEHALF OF THE 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. Whether marriage between Mohan and Fatima in Hindu form valid?..............................vii

II. Whether marriage between Mohan and Fatima in Muslim form valid?...........................vii

III. Whether restitution of conjugal rights can be granted to Mohan?....................................vii

SUMMARY OF ARGUMENTS..................................................................................................vii

I. 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. Whether restitution of conjugal rights be granted to Mohan?......................................viii

ARGUMENTS ADVANCED.........................................................................................................1

I. The marriage between the Plaintiff and Defendant in Hindu form is not valid..................1

A. Defendant is a Muslim by religion and her conversion is not valid................................1

MEMORIAL ON BEHALF OF THE DEFENDANT

i

B. The Hindu Marriage Act is not applicable to the defendant............................................2

C. Defendant is incompetent to marry..................................................................................3

D. Defendant’s consent was obtained on fraudulent grounds..............................................4

II. The marriage between the Plaintiff and Defendant in Muslim form is not valid................4

A. The plaintiff is a Hindu....................................................................................................5

B. There has been conversion to the original religion to which earlier generations had

belonged...................................................................................................................................5

C. There has to be evidence regarding acceptance by the community.................................5

D. Mohammedan Law is not applicable to the plaintiff.......................................................6

E. Absence of free consent on the part of defendant............................................................7

III. Restitution of Conjugal Rights cannot be granted to Plaintiff.............................................7

A. Plaintiff cannot claim restitution of conjugal rights under Mohammedan law...............7

B. Plaintiff cannot claim restitution of conjugal rights under Hindu law............................8

PRAYER FOR RELIEF..................................................................................................................9


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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


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Section 5, The Special Marriage Act,1954----------------------------------------------------------------3

Section 6 (1) (i) Hindu Marriage Act, 1955---------------------------------------------------------------3

Section 9, The Hindu Marriage Act, 1955-----------------------------------------------------------------8

OTHER AUTHORITIES

http://gunturmedicalcollege.edu.in/?page_id=31 (accessed February 21, 2016)---------------------6

Mulla, Hindu Law, Satyajeet Desai Ed., 21st ed. 2010 Lexis-------------------------------------------3

Secton 14 of the Principles of Mohammedan Law by Mulla, 17th Edition, 2010---------------------6

Shri M. N. Rao, Freedom of Religion and Right to Conversion, (2003) PL WebJour 19-----------1


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SUMMARY OF FACTS

I

Mohan’s 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 father’s 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.

V


v

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.


vi

STATEMENT OF JURISDICTION

The Plaintiff most humbly and respectfully, submits that this Hon’ble 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.


vii

ISSUES FOR CONSIDERATION

The following questions are presented for adjudication in the present matter.

I. WHETHER MARRIAGE BETWEEN MOHAN AND FATIMA IN HINDU FORM VALID?

II. WHETHER MARRIAGE BETWEEN MOHAN AND FATIMA IN MUSLIM FORM VALID?

III. WHETHER RESTITUTION OF CONJUGAL RIGHTS CAN BE GRANTED TO MOHAN?


viii

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 Fatima’s 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.


ix

II. Whether restitution of conjugal rights be granted to Mohan?

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.


x

ARGUMENTS ADVANCED

I. THE MARRIAGE BETWEEN THE PLAINTIFF AND DEFENDANT IN HINDU FORM IS

NOT VALID.

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.

A. Defendant is a Muslim by religion and her conversion is not valid.

The defendant was born in a Muslim family and her father was a strong follower of Islam. Under

emotional threat and pressure from the appellant, the defendant accepted to convert her religion,

in order to marry the plaintiff under Hindu Law.

However, the right to conversion connotes the individual right of a person to quit one religion

and embrace another voluntarily. This kind of change from one religion to another religion must

necessarily be in consequence of one’s conviction that the religion in which he was born into has

not measured up to his expectations, spiritual or national.1

In this particular case, as soon as plaintiff told the defendant about his conversion, she feared that

her father would not accept them. From the facts, it can be construed that defendant never

wanted to go against her father’s wishes and it was only under emotional threat and pressure that

she agreed to marry plaintiff for which the plaintiff made her undergo a Sudhi Ceremony for her

religious conversion to Hinduism.

1Shri M. N. Rao, Freedom of Religion and Right to Conversion, (2003) PL WebJour 19


1

Therefore, the defendant’s conversion is not voluntary and is based on force and external

pressure. Moreover, the conversion is not based on the defendant’s 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 defendant’s conversion to Hinduism valid is a violation of her

fundamental rights.

B. The Hindu Marriage Act is not applicable to the defendant.

The defendant’s conversion to Hinduism is null and void as it is a forced and fraudulent

conversion.5 Therefore, since the defendant never got converted, hence her marriage in Hindu

form is not legally valid.

It has been clearly specified that Hindu Marriage Act applies only to those who are either Hindu

by birth6 or have converted to Hinduism.7 In the present case, the defendant was born a Muslim

and was made to undergo a Sudhi Ceremony by use of emotional pressure and allurement of

marriage which does not constitute a valid conversion.

2 Article 25 (1), Constitution of India, 19503Rev. Staininslaus vs State of Madhya Pradesh, AIR 1977 SC 9084Arun Ghosh vs State of West Bengal, AIR 1989 SC 8805 Issue1.16 Section 2 (1) (a), Hindu Marriage Act, 19557 Section 2 (1) (a) explanation (c), Hindu Marriage Act, 1955


2

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.

C. Defendant is incompetent to marry.

Defendant is below the prescribed age of marriage under the Hindu Marriage Act. According to

the Hindu Marriage Act, the bride’s age being at least 18 is a necessary condition to commence

marriage under Hindu Law.11

In cases where the bride is under 18, the consent of the guardian of the bride is required.12 In the

present case, the defendant’s 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.

8 Section 2 (1) (c), Hindu Marriage Act9Subir Kumar Kundu vs. State of West Bengal, (1992), CriLJ 150210Section 5, The Special Marriage Act,195411Section 5, (iii), Hindu Marriage Act, 195512Mulla, Hindu Law, Satyajeet Desai Ed., 21st ed. 2010 Lexis 13Section 6 (1) (i) Hindu Marriage Act, 1955


3

D. Defendant’s consent was obtained on fraudulent grounds.

If the consent for marriage has been obtained by force or fraud, the marriage can be annulled and

declared null and void. 14 In the present case plaintiff put defendant under such emotional

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 Defendant’s 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 wasn’t

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.

Hence the marriage between plaintiff and defendant under Hindu form shall be termed as null

and void.

II. THE MARRIAGE BETWEEN THE PLAINTIFF AND DEFENDANT IN MUSLIM FORM IS

NOT VALID.

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-

A. The plaintiff is a Hindu.

In the present case, the plaintiff underwent a Sudhi Ceremony and converted to Hinduism, a

religion to which his parents originally belonged, before their conversion. The question of the

14Section 12 (c) Hindu Marriage Act, 195515Annjana Devi vs. Prahlad, (1971) 7 Beng LR 243


4

validity of a conversion to Hinduism is of considerable importance and consequence, where the

court has to determine whether a person can be regarded as a member of the Hindu religion.16

Two things need to be established when a person claims to have converted back to his original

religion-17

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.

C. There has to be evidence regarding acceptance by the community.

The plaintiff, after reconverting to Hinduism, applied for admission to the Guntur Medical

College. He was accepted as member belonging to the reserved category of Scheduled Caste.

Further, if an organization recognized by the state has granted a certificate in categorical terms in

favour of the plaintiff, then it can be construed that community has accepted the plaintiff and no

further enquiries are required.18

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/sunday-anchor/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 140218 Ibid


5

The plaintiff was accepted as a member of Scheduled Caste by the Guntur Medical College

which is an institution recognized by the state.19 Therefore, the plaintiff can be said to have

gotten the necessary acceptance from the community.

Hence, the plaintiff’s conversion to Hinduism is a valid one.

D. Mohammedan Law is not applicable to the plaintiff.

For a marriage to be solemnized under Mohammedan Law, each party to the marriage should be

a Mohammedan.20 A marriage under Mohammedan Law is prohibited when one party belongs to

some other religion, especially the community of fire worshippers (Hindus).21

Most importantly, it has been expressly provided that a Mohammedan woman cannot marry any

man who is not Mohammedan and such a marriage would be termed unlawful under

Mohammedan Law. 22

Since, in the present case plaintiff underwent a religious conversion into Hinduism and never got

reconverted; therefore, his marriage to the defendant is not valid under Mohammedan law.

E. Absence of free consent on the part of defendant.

A woman becomes competent to enter into marriage as soon as she attains puberty. Marriage can

be termed valid only if both parties enter into it voluntarily.23 Free Consent of the parties is

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. 11222Secton 14 of the Principles of Mohammedan Law by Mulla, 17th Edition, 2010.23Atkia Begum v. Mohd.Abraham, AIR1978 All. 89


6

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. RESTITUTION OF CONJUGAL RIGHTS CANNOT BE GRANTED TO PLAINTIFF.

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.

A. Plaintiff cannot claim restitution of conjugal rights under Mohammedan law.

A husband may sue his wife for restitution of conjugal rights if she ceases to cohabit with him

without any lawful cause. A marriage under Mohammedan Law is essentially a civil contract. A

suit for restitution of conjugal rights is of a civil nature within meaning of Section 9 of Code of

Civil Procedure.27

24HasanKutti v. Jainabha, AIR 1928 Mad. 128725Atkia Begum v. Mohd. Ibrahim, AIR 1929 All. 1826Kulsumbi v. Abdul Kadir, AIR 1921 Bom. 20727Abdul Kadir v. Salima, I.L.R. 8 All. 890


7

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.

B. Plaintiff cannot claim restitution of conjugal rights under Hindu law.

If either husband or wife without any reasonable excuse withdraws himself/herself from the

society of the other, the aggrieved party may apply for the restitution of the conjugal rights.28

However, the marriage between Mohan and Fatima under Hindu customs is not valid. One of the

legal grounds for refusing to grant relief is that marriage of the parties was in violation of the

Child Marriage Restraint Act, 1929.29 In this particular case Fatima was just 17 years old while

the legal age for marriage is 18 years.

Hence, plaintiff cannot claim restitution of conjugal rights under Hindu Law.

28 Section 9, The Hindu Marriage Act, 195529Sukram v. MsihriBai, AIR 1979 MP 177


8

PRAYER FOR RELIEF

Wherefore, in the lights of the facts stated, issues raised, arguments advanced and authorities

cited, it is most humbly and respectfully prayed before this Hon’ble Court that it may be

pleased to –

A. To dismiss the plaint

B. To declare the marriage as null and void.

Pass any other order or grant any other relief in the ends of justice

All of which is most humbly and respectfully submitted

Date: March 7th, 2016 Counsel for Defendant

Place: Guntur, Andhra Pradesh


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family law defendent final

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