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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. MOHANPLAINTIFF

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

B.

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

C.

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

D.

Defendants 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

MEMORIAL ON BEHALF OF THE DEFENDANT

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

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

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.

MEMORIAL ON BEHALF OF THE DEFENDANT

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.

MEMORIAL ON BEHALF OF THE DEFENDANT

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.

MEMORIAL ON BEHALF OF THE DEFENDANT

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?

MEMORIAL ON BEHALF OF THE DEFENDANT

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.

MEMORIAL ON BEHALF OF THE DEFENDANT

10

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.

MEMORIAL ON BEHALF OF THE DEFENDANT

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 ones 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 fathers 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

MEMORIAL ON BEHALF OF THE DEFENDANT

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.

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


The defendants 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
2 Article 25 (1), Constitution of India, 1950
3Rev. Staininslaus vs State of Madhya Pradesh, AIR 1977 SC 908
4Arun Ghosh vs State of West Bengal, AIR 1989 SC 880
5 Issue1.1
6 Section 2 (1) (a), Hindu Marriage Act, 1955
7 Section 2 (1) (a) explanation (c), Hindu Marriage Act, 1955

MEMORIAL ON BEHALF OF THE DEFENDANT

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.

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 brides age being at least 18 is a necessary condition to commence
marriage under Hindu Law.11

8 Section 2 (1) (c), Hindu Marriage Act


9Subir Kumar Kundu vs. State of West Bengal, (1992), CriLJ 1502
10Section 5, The Special Marriage Act,1954
11Section 5, (iii), Hindu Marriage Act, 1955

MEMORIAL ON BEHALF OF THE DEFENDANT

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.

D. Defendants 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 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

MEMORIAL ON BEHALF OF THE DEFENDANT

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
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

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

MEMORIAL ON BEHALF OF THE DEFENDANT

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
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 plaintiffs conversion to Hinduism is a valid one.

18 Ibid
19http://gunturmedicalcollege.edu.in/?page_id=31 (accessed February 21, 2016)

MEMORIAL ON BEHALF OF THE DEFENDANT

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

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

MEMORIAL ON BEHALF OF THE DEFENDANT

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

24HasanKutti v. Jainabha, AIR 1928 Mad. 1287


25Atkia Begum v. Mohd. Ibrahim, AIR 1929 All. 18
26Kulsumbi v. Abdul Kadir, AIR 1921 Bom. 207

MEMORIAL ON BEHALF OF THE DEFENDANT

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.

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.
27Abdul Kadir v. Salima, I.L.R. 8 All. 890
28 Section 9, The Hindu Marriage Act, 1955
29Sukram v. MsihriBai, AIR 1979 MP 177

MEMORIAL ON BEHALF OF THE DEFENDANT

10

MEMORIAL ON BEHALF OF THE DEFENDANT

11

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 Honble 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

MEMORIAL ON BEHALF OF THE DEFENDANT