MOOT COURT 2017

Roll No: 127

Hanuj Rao

BEFORE THE HON’BLE FAILY COURT OF VADODARA DIST.

Appeal No.

MRS. KAJAL (PLAINTIFF)

V.

MR. AJAY (DEFENDANT)

WRITTEN SUBMISSIONS ON BEHALF OF THE DEFENDENT

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 TABLE OF CONTENTS

LIST OF ABBREVIATIONS…………………………………………………………….........3

INDEX OF AUTHORITIES………………….………………………………………………..4

A. Cases Cited…………………………………………………………………….…………..4

B. Books Referred…………………….......................……………………………........4

C. Web Sources............................................................................................................ ....5

D. Statutes Referred .........…………………………………………………………... .....5

STATEMENT OF JURISDICTION…………………………………………………………...6

SUMMARY OF FACTS………………………………………………………………….........7

ISSUES INVOLVED…………………………………………………………………………10

SUMMARY OF ARGUMENTS……………………………………………………………..11

ARGUMENTS ADVANCED………………………………………………………………..12

PRAYER……………………………………………………………………………………...14

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 LIST OF ABBREVIATIONS

1. & - And

2. ¶ - Paragraph

3. A.I.R – All India Report

4. Anr. – Another

5. Hon’ble - Honorable

6. No. – Number

7. Ors. – Others

8. S.C.C. - Supreme Court Cases

9. S.C. - Supreme Court

10. Sec. – Section

11. v. – Versus

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 INDEX OF AUTHORITIES

A. CASES CITED

• S. Nagalingam vs Sivagami , AIR 2001 SC 3576

• Joginer Singh vs Pushpa AIR 1969 P H 397

• Savitri Devi v. Manoorama Bai, AIR 1998 M.P. 114

• Gullipalli Sowria Raj v. Bandaru Pawani, AIR 2009 SC 1085

B. BOOKS REFERED

• MODERN HINDU LAW – PARAS DIWAN

• FAMILY LAW IN INDIA – G.C.V. SUBBA RAO

• FAMILY LAW MANUAL – SUMEET MALIK

• THE FAMILY LAW – S.R.A. ROSEDAR

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C. WEB SOURCES

• www.casebrief.me.com

• www.indiankanoon.com

• www.Lawyerslaw.org

• www.advocatekhoj.com

• www.lawteacher.net

• www.scribd.com

• www.lawoctopus.com

D. STATUTES

• The Hindu Marriage Act, 1955

• The Family Courts Act, 1984

STATEMENT OF JURISDICTION
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The Defendant herein humbly states to this Hon’ble Court that this Hon’ble Court has jurisdiction

to decide the dispute as per section 9 of the Hindu Marriage Act 1955

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 SUMMARY OF FACTS

Kajal filed an application for restitution as conjugal rights under Hindu Marriage Act 1955. She

married Ajay in temple near Pinagadh on 14th February, 2012 by exchange of garlands. She further

stated that she joined her husband and her mother-in-law was ill treating her for reason that their

marriage was not an arranged marriage and the marriage performed was not a marriage at all it is

her further case that she and her husband went to Ved Mandir and they had undergone all marriage

ceremonies on 2rd November, 2012 and thus the marriage was solemnized. The husband who is

under the thumb of his mother deserted her in February 2013 and she has been living separately

ever since.

The contention of Ajay is that he came into contact with Kajal as she was introduced to him in a

function by friend where accidentally a photograph of both of them was taken. He did not marry

by exchange of garlands as alleged by her on 14-2-2012 and he married his maternal uncle’s

daughter on 7-7-2012. He further allege’s that taking advantage of his state of drunkenness Kajal

took him to Ved Mandir and he was not knowing as to what was going on 2rd November 2012. He

says that Kajal is a Christian and he had produced an affidavit (in which her husband’s name was

also mention) signed by her and attested by a notary to the effect that she is a Christian and the

affidavit was need for securing employment. Ajay had also got hold of a birth certificate where in

it is stated that Kajal gave birth to a male child 3 years prior 14-2-2012 and the husband’s name is

mentioned as Max Jacob. Ajay therefore contents that his marriage if at all there is one with Kajal

is not a valid marriage and she is not entitled for Restitution of Conjugal rights.

ISSUES INVOLVED

The defendant (Mr. Ajay) submits the following questions for adjudication and determination to
this Honourable Court in the present matter-

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ISSUE 1: WHETHER THE MARRIAGE CONSUMMATED BY THE
PLAINTIFF DURING THE INTOXICATED STATE OF THE
DEFENDANT A VALID MARRIAGE ?

ISSUE 2: WHETHER THE MARRIAGE OF THE DEFENDANT WITH

THE PLAINTIFF A VOID MARRIAGE IN THE EYE OF LAW ?

SUMMARY OF ARGUMENTS

1) WHETHER THE MARRIAGE CONSUMMATED BY THE PLAINTIFF

DURING THE INTOXICATED STATE OF THE DEFENDANT A VALID
MARRIAGE ?

The marriage between Mr. Ajay and Mrs. Kajal never happened in temple near Pinagadh. Mrs.
Kajal took advantage of drunkenness state of Mr. Ajay and underwent all marriage ceremonies at
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Ved Mandir. Marriage between Mr. Ajay and Mrs. Kajal underwent unsoundness of mind of Mr.
Ajay which makes it a Invalid marriage.

2) WHETHER THE MARRIAGE OF THE DEFENDANT WITH THE

PLAINTIFF A VOID MARRIAGE IN THE EYE OF LAW ?

The plaintiff Mrs. Kajal is a married women with a male child from previous husband. Birth
certificate of Mrs. Kajal’s male child born on 14-2-2012 also states the name of her husband Mr.
Max Jacob. Mrs. Kajal already has a living spouse. Mrs. Kajal had produced an affidavit signed
by her and attested by a notary to the effect that she is a Christian for securing her employment.
Mr. Ajay being Hindu and Mrs. Kajal being Christian and her spouse being alive makes this
marriage a void marriage in the eye of law.

ARGUMENTS ADVANCED

1) THE MARRIAGE CONSUMMATED BY THE PLAINTIFF DURING

THE INTOXICATED STATE OF THE DEFENDANT IS NOT A

VALID MARRIAGE.

The marriage between the plaintiff Mrs. Kajal and the defendant Mr. Ajay is not a valid
marriage. The defendant Mr. Ajay was drunk when Mrs. Kajal completed all their marriage
ceremonies. There can be no valid marriage without mental capacity or soundness of mind of
both the parties by the Marriage laws act, 1976.

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1.1) Mental capacity or soundness of mind of both the parties offer.
The case illustrates how a marriage without the mental capacity or soundness of mind of
both the parties, can result into an invalid marriage. In Marriage Law Act, 1976 when a
party marries with another party which is not in his/her mental capacity or soundness of
mind is not considered a valid marriage.

Under the personal law of all communities in India, a person of unsound mind has no
capacity to marry. At the time of marriage neither party is incapable of giving a valid
consent to it in consequence of unsoundness of mind.

Om Prakash Gupta vs Puspa Kumari on 28 October, 1969, the Delhi High Court held
that Clause 2(b) and Section 5(ii) of the Act lays down as ons of the conditions for a
Hindu Marriage that neither party must be in capable of giving valid consent in
consequence of unsoundness of mind or has been suffering from mental disorder. Section
12(1)(b) renders at the instance of the other party a marriage voidable which is in
contravention of this condition.

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 2) THE MARRIAGE OF THE DEFENDANT WITH THE PLAINTIFF A

VOID MARRIAGE IN THE EYE OF LAW .

A void marriage is, in fact, a misnomer, a contradiction. It is called a marriage on account of the
fact that two persons having no capacity to marry have, in fact, undergone the requisite rites and
ceremonies of marriage. A void marriage is no marriage.

Since a void marriage is no marriage, a decree of nullity is not necessary.(Lila vs Laxmi, 1968 All
LJ 683). When a court passes a decree of nullity in respect of a void marriage, it merely declares
a marriage null and void. It is not the decree of the court which renders such a marriage void; the
court merely makes a judicial declaration of an existing fact, i.e. there existed no marriage between
spouses.

According to the section 11 of the Hindu Marriage Act, 1955 “Any marriage solemnised after the
commencement of this Act shall be null and void and may, on a petition presented by either party
there to [against the other party], be so declared by a decree of nullity if it contravenes any one of
the conditions specified in clauses
(i) , (iv) and (v) of section 5.”
Section 7 of the Hindu Marriage Act says that a Hindu marriage may be solemnized in accordance
with the customary rites and ceremonies of either party thereto and where such rites and
ceremonies include the Saptapadi, i.e. 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.
"Saptapadi" was held to be an essential ceremony for a valid marriage only in cases where it was
admitted by the parties that as per the form of marriage applicable to them that was an essential
ceremony.1

In the present case the Plaintiff and Defendant had done no such ceremonies , Moreover the
Defendant being a Christian girl cannot marry according to Hindu Rituals before conversion and
such marriage is inadmissible and void under the Hindu Marriage Act , 1955 2

1
S. Nagalingam vs Sivagami , AIR 2001 SC 3576

2
Joginer Singh vs Pushpa AIR 1969 P H 397
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Furthermore the Hindu Marriage Act also spells out denial of practice of Bigamy and thus If at the
time of marriage either party has a spouse living, it is a void marriage. In the present instance it is
an admitted fact that the Plaintiff had a spouse and a child as per records submitted by her own
self in her work profile and thus also such an marriage is void and null. 3

Furthermore the marriage between a Hindu and Non Hindu cannot be solemonised under the
Hindu Marriage Act and if such a marriage desires to attain santity it has to be registered under the
Special Marriage Act , which is not the synerio in the present instance. Therefore when the plaintiff
is not a legally wedded wife, as the marriage per se is null and void the question of restitution of
conjugal rights does not arise. 4

The present court therefore under the Hindu Marriage act is having jurisdiction and authority to
award compensation , damages of the marriage in the present suit.

3
Savitri Devi v. Manoorama Bai, AIR 1998 M.P. 114
4
Gullipalli Sowria Raj v. Bandaru Pawani, AIR 2009 SC 1085

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 PRAYER

Wherefore in the light of facts presented, questions presented, arguments advanced, and
authorities citied, the defendant most humbly prays before the Hon’ble Family Court to kindly
adjudge and declare:

1. That there is no valid marriage existent between the parties;

2. That no restitution of conjugal rights can be granted in the present case as the
plaintiff is not a legally wedded wife of the Defendant;

Pass any other appropriate order as the court may deem fit and for this act of kindness, the
defendant as in duty bound, shall forever pray.

Respectfully Submitted

Counsel for Defendant

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