TC-08 R PDF

TC- 08_R
LAW COLLEGE DEHRADUN, FACULTY OF UTTARANCHAL UNIVERSITY

NATIONAL MOOT COURT COMPETITION - 2019
BEFORE THE HON’BLE SUPREME COURT OF INDISTAN
IN THE MATTER OF
RAKSHAK DAYINI AND RATHIN..............................................................PETITIONER

v.
RACHEL AND ANR......................................................................................RESPONDENT
CLUBBED WITH
TAUHID- THE SPIRITUAL LIFE.................................................................PETITIONER

v.
RACHEL…………..........................................................................................RESPONDENT
CLUBBED WITH
RATHIN………….............................................................................................PETITIONER
v.
STATE……………..........................................................................................RESPONDENT
PETITION INVOKED UNDER ARTICLE 32 & ARTICLE 136 READ

WITH ARTICLE 139 OF THE CONSTITUTION OF INDISTAN
___________________________________________________________________________
UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS LORDSHIP’S
COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF INDISTAN
MEMORANDUM OF ARGUMENTS FOR THE PETITIONER

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TABLE OF CONTENTS
HEADINGS PAGE NO.

LIST OF ABBREVIATIONS 3-4
INDEX OF AUTHORITIES 5-9
STATEMENT OF JURISDICTION 11
STATEMENT OF FACTS 12-13
STATEMENT OF ISSUES 14
SUMMARY OF ARGUMENTS 15-16
ARGUMENTS ADVANCED 17-31
I. WHETHER THE PETITIONS ARE MAINTAINABLE? 16-19
II. WHETHER A HINDU MARRIAGE CAN BE DISSOLVED 19-22
BY THE REQUESTING PARTY ON THE GROUND OF
HIS/HER CONVERSION TO ANOTHER RELIGION OR
RENUNCIATION OF THE WORLD BY ENTERING ANY
RELIGIOUS ORDER, AND IT’S BEARING ON THE
RIGHT TO RELIGION?
III. WHETHER A STATELESS PERSON HAS THE 22-24
PROTECTION OF FUNDAMENTAL RIGHTS UNDER
THE INDISTAN CONSTITUTION, IF SO, WHAT IS THE
SCOPE OF SUCH PROTECTION AND WHAT ROLE
HAS A MARRIAGE TO PLAY IN DETERMINING THE
CITIZENSHIP OF SUCH STATELESS PERSON?
IV. WHETHER CONSTITUTIONAL PRINCIPLES AND 24-27
HUMAN RIGHTS PREVAIL OVER THE DISPUTE OF
INTERNATIONAL NATURE ARISING FROM
PERSONAL LAWS AND THE SCOPE OF
JURISDICTION OF DOMESTIC COURTS THEREOF?
V. WHETHER THE PARLIAMENT SHALL ENACT ANTI 27-29
CONVERSION LAW FOR THE PROTECTION OF
SACRAMENT RELATIONSHIP OF MARRIAGE?
VI. WHETHER THE PETITION FOR DECREE OF 29-31
DIVORCE AND OFFENCE OF RAPE AGAINST RATIN
UU-LCD-NMCC-2019 Page 1 of 33
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SHALL BE QUASHED?
PRAYER 32
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LIST OF ABBREVIATIONS
Abbreviation Expansion
¶ PARAGRAPH
¶¶ PARAGRAPHS
A.I.R. ALL INDIA REPORT
A.P. ANDHRA PRADESH
All. ALLABHAD
Anr. ANOTHER
Art. ARTICLE
Arts. ARTICLES
BL. J.R. BIHAR LAW JOURNAL REPORTS
Bom. BOMBAY
Cal. CALCUTTA
THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF
CEDAW
DISCRIMINATION AGAINST WOMEN, 1981
ch. CHAPTER
cl. CLAUSE
Commr. COMMISSIONER
Cri. L. J. CRIMINAL LAW JOURNAL
Del. DELHI
ed. EDIT ( ION, OR)
G.A. Res. GENERAL ASSEMBLY RESOLUTION
Gau. GAUHATI
Guj. GUJARAT
H.C. HIGH COURT
i.e. THAT IS
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS,
ICCPR
1976
Id. IBID
ILR INDIAN LAW REPORTER
Ker. KERALA
L.R. LAW REPORT
Ltd. LIMITED
Mad. MADRAS
NCT NATIONAL CAPITAL TERRITORY
Ors. OTHERS
Pat. PATNA
PIL PUBLIC INTEREST LITIGATION
Raj. RAJASTHAN
Rep. REPORT
S.C. SUPREME COURT
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S.C.C. SUPREME COURT CASES

SLP SPECIAL LEAVE PETITION
Supp. SUPPLEMENTARY
U.N. UNITED NATIONS
U.N.T.S. UNITED NATIONS TREATY SERIES
UDHR UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948
UOI UNION OF INDIA
v. VERSUS
Vol. VOLUME
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INDEX OF AUTHORITIES
Sr. No. Title Citation page(s)

1 Atheist society of India, 18
Nalganda District branch v. AIR 1992 AP 310
Government of Andhra Pradesh
2 A. Jayachandra v. Aneel Kaur (2005) 2 SCC 22 24
3 Ajay Arjun Singh v. Sharadendu AIR 2016 SC 1417 13

Tiwari
4 Ajit Kumar v. State 1998 (1) J.Cr. C37 25
5 Andhra Industrial Works v. 10

Chief Controller of Imports AIR 1974 SC 1539.
6 Ashok Lanka v Rishi Dixit 2005 AIR SCW 2676 11
7 Babu v. Leela 2006 (3) KLT 891 14
8 Bachhanidhi das v. Kamla Devi AIR 1980 Orissa 171 16
9 Basant Prasad Sahu v. Nadit 2019 (2) HLR (Jhar) DB 55 24

Sahu
10 BCCI v. Cricket Association of AIR 2014 SC 3194. 12

Bihar
11 Bhagwandas v Union of India AIR 1956 SC 175 11

12 Bharat Petroleum Corporation (2014) 2 SCC 657 12
Ltd. v R.C. Vaidya
13 Chairman, Railway Board 2000 AIR 988 20
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&Ors. vs. Chandrima Das & Ors
14 Civil rights Vigilance Committee AIR 198 Kant 85. 22

S.L.S.R.C College of law v Union
of India
15 AIR 1971 SC 870 10

Coffee Bd. v. Joint C.T.O
16 Commissioner Hindu Religious 17

Endowment, Madras v. S. AIR 1954 SC 282.
Lakshmindra Thirtha Swamiar
of Sri Shrurm muwt
17 18
Commr., HRE v. Lakshmidra (1954) SCR 1005
18 Dalip Saikia v. State of Assam 2009 (81) A.I.C 950 25
19 Danzing Railways Official Case P.C.I.J (1928) Series b No. 15 23
20 Deepak Gulati v. State of AIR 2013 SC 2071 24

Haryana
21 Dr. B Singh v Union of India AIR 2004 SC 1923 11
22 Dr. B Singh v Union of India, AIR 2004 SC 1923

23 Express Newspaper Ltd. Union AIR 1986 SC 872 11
of India AIR 1986 SC 872.
24 Federation of Bar Association in (2000) 6 SCC 715 10

Karnataka v. Union of India
25 Fertilizer Corp. Kamgar Union AIR 1981 SC 344 10
v. Union of India
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26 Getty v. Getty (1907) (1907) L.R . 17 P.D.334 15
27 Gopal Das v. Union of India AIR 1955 SC 1. 10
28 Gramophone Company of India AIR 1984 SC 667 22

Ltd. V. Birendera Bahudhar
Pandey
29 Harvinder Kaur v. Harminder AIR 1984 Del 66 14, 15

Singh
30 Inita Saxena v. Pankaj Pandit (2006) 3 SCC 778
31 Jamshed Hormusji Wadia v. AIR 2004 12

Board of Trustees
32 Janardhan Reddy v. State of AIR 1951 SC 217 11

Hyderabad
33 Janta Dal v H.S Choudhary 1992 (3) AI Cri LR (SC) 299. 10
34 Kailash Sonkar v. Mayadevi AIR 1984 SC 600 13
35 Khzan Singh v. Union of India AIR 1980 Del 60 13
36 Kishore Ghosh v. Krishna Gosh AIR 1983 Cal. 327 16
37 M. Ismail Farqui etc v. Union of AIR 1995 SC 605 18

India
38 Mani Shankar v. Radha Devi AIR 1992 SC 1534 16

39 Manoj H. Mishra v. Union of (2013) 6 SCC 313 12
India
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40 Mohammad v. Mst Mariam AIR 1936 Lah 666 13
41 N.G Dastane v. S Dastane AIR 1975 SC 1534 16
42 National Human Rights 1996 AIR 1234 20

Commission vs. State of
Arunachal Pradesh
43 Neetu v State of Punjab 2007 SC 758 11
44 P.S.R. Sadhanantam v. AIR 1980 SC 856 12

Aruachalam
45 Poppe v Poppe N.Y 2d 312, 144 N . E. 2d 72 15
(1957)
46 Praveen Mehta v. Inderjit Mehta AIR 2002 SC 2582 23, 24
47 Prez v. Brownwell 356 U.S 44, 64 (1958) 19
48 Pritam Singh v. State AIR 1950 SC 169 12
49 Punjab Rao v. D.P. Meshram AIR 1965 SC 1179 17
50 Raja Gopalan v. Rajamm 1996 Ker L.T. 891 14
51 Ratilal v. State of Bombay AIR 1954 SC 388 17, 18
52 S.P Gupta v Union of India AIR 1982 SC 149. 11
53 Saroj Rani v. Sudarshan Kumar AIR 1984, SC 1562 14, 15

Chadha
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54 Sheela Barse v. Secretary 23

Children’s Aid Society 1987 SCR (1) 870
55 shobha Rani v. Madhikar Reddi (1988) 1. SCC 105 23
56 Siemens Ltd. v. Siemens (2011) 9 SCC 775. 12

Employees Union
57 Skinner v. Skinner (1970) 2 SCJ 1235 13
58 Smt. Aruna Jalan v. Captain AIR 1988 ALL. 239 at p. 242 16
Chand Jalan
59 Stainislaus Rev. v State of M.P AIR 1975 MP 163 18
60 Star mills v State of Uttar AIR 1984 SC 37 11

Pradesh
61 State of Punjab v. Gurmeet AIR 1996 SC 1393 25
Singh and ors AIR 1996 SC 1393
62 State of Punjab v. Ram dev AIR 2004 SC 1290 25

Singh
63 Swajan & Anr. Vs. Union of 1995) 3 SCC 619 20
India & Anr 1995) 3 SCC 619
64 U. Sree v. U. Srinivas (2013) 2 SCC 114 12
65 Ujjambai v. State of Uttar AIR 1962 SC 1321 11
Pradesh
66 V. Bhagat v. Mrs D. Bhagat 1994 SCC (1) 337 23
67 Vilyat Raj v. Smt. Sunita AIR 1983 Del 351 13
STATUTES AND RULES
 CODE OF CIVIL PROCEDURE, 1908.
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 CONSTITUTION OF INDIA, 1950.

 CODE OF CRIMINAL PROCEDURE, 1973.
 INDIAN EVIDENCE ACT, 1872.
BOOKS
 DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA (13TH ED. 2001)

 DR. S.R. MYNENI, DRAFTING, PLEADING & CONVEYANCING (1ST ED.
2008)
 T.K. TOPE, CONSTITUTION OF INDIA (3RD ED. 2010)
 BATUK LAL, THE LAW OF EVIDENCE (21ST ED. 2015)
LEXICONS
 BRIAM A. GARNER, BLACK’S LAW DICTIONARY (10TH ED. 2014)

 P RAMANATHA AIYAR, THE MAJOR LAW LEXICON (4TH ED. 2010)
 SALLY WEHMEIER, OXFORD ADVANCED LEARNER’S DICTIONARY (7TH
ED.2005)
 DAULAT RAM, PREM’S JUDICIAL DICTIONARY, VOL I, VOL II (5TH ED.,
2002)
INTERNATIONAL CONVENTIONS AND COVENANTS
 UNIVERSAL DECLARATION FOR HUMAN RIGHTS, 1948.

 EUROPIAN CONVENTION ON HUMAN RIGHTS AND FUNDAMENTAL
FREEDOMS, 1950.
 INTERNATIONAL CONVENTION ON CIVIL AND POLITICAL RIGHTS, 1966.
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STATEMENT OF JURISDICTION
The respondent humbly submits before the Hon’ble Supreme Court of Indistan, the
memorandum for the respondent in Writ Petition under Article 32 and Appeal filed by
petitioner under Article 136 of the Constitution of Indistan. However, the Respondent seeks
permission of this Hon’ble Court to contend the maintainability of the Writ Petition and
Special Leave petition filed by the petitioners.
The present memorandum sets forth the facts, contentions and arguments in the present case.
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STATEMENT OF FACTS
BACKGROUND OF THE CASE
The Republic of Indistan is an independent “Union of States” which got its independence
from the British Rule in the year 1947. The Constitution of Indistan guarantees several
Fundamental rights which correspond to the International Human Rights Instruments. The
republic of Indistan is a secular country which exhibits the world “Unity in Diversity”.
Rachel David who was born in the Jew orthodox Jewish family was a staunch follower of
Judaism and a strong supporter of Jewish movement for separate homeland of Jews in the
Middle East.
CIRCUMSTANCES LEADING TO DISPUTE
I.
1. An international Organization “Tauhid- The Spiritual Life” filed a
petition to ban such Jewish American Citizens from supporting the
Zionist Movement of Israel. The U.S Federal Government in
response to the petition banned American Citizens from supporting
any religious or regional movement outside the US territories in
whatsoever manner.
2. The history of Rachel reveals that she belongs to the history of
criminal activities and was once convicted by the Californian court
for the offence of smuggling. Rachel was a habitual drug addict
since adolescence but in spite of several efforts she was not able to
come out from such curse. When Rachel was pursuing Management
course she came in contact with Rathin Raj Sharma and become
good friends. Both of them became intimate friends and Rathin
being well versed in Yoga had taught Rachel how to control her
desires and senses and was able t get rid off her habit of narcotic
drugs. Rachel meanwhile was having inclination towards Hindu
Religion had voluntarily gave a written undertaking to the parents
of Rathin and married in accordance to the provisions of HMA,
1955 in Indistan.
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II.
3. On completion of study Rathin and Rachel started their own
business in Stockholm a city in Sweden but the business of Rathin
did not succeed and they return to Indistan. On return of Indistan
when one day in the intimate movement with Rachel Rathin
disclosed to Rachel that in the early period of marriage he had an
affair with a married lady named Maria who had now filed a
complaint against him for the offence of rape. However with the
passing of time due to distrust on her husband she decided to
relinquish Hindu Religion and plied in the family Court for the
decree of divorce under Section 13(1). Family Court passed the
decree in favour of Rachel.
4. Rathin filed an appeal before the Delhi High Court that the family
Court that the family Court without properly appraising the
evidence offered by him granted divorce. One NGO named
Rakshakdayini filed a writ petition under Article 32 for quashing
the decree of divorce and to declare in public interest that no spouse
should be allowed to withdraw marriage on the ground of
conversion. When the intention of Rachel to migrate to Israel came
to knowledge the Islamic International Organization “Tauhid – The
Spiritual Life” filed petition before the Honourable High Court of
Delhi for preventing Rachel from leaving Indistan for the purpose
of joining State of Israel. The High Court rejected petition and the
Organization filed appeal Under Article 136(1) of Indistan
Constitution.
MATTER BEFORE SUPREME COURT
The Supreme Court of Indistan, on a prima facie basis, clubbed both the petitions viz. the
petition filed by “Tauhid-The Spiritual Life” and that of “Rakshakdayini”. It also withdrew
the appeal of Rathin from Delhi High Court in itself and clubbed the petitions as the matter in
them is interconnected.
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STATEMENT OF ISSUES
I. WHETHER THE PETITIONS ARE MAINTAINABLE?
II. WHETHER A HINDU MARRIAGE CAN BE DISSOLVED BY THE

REQUESTING PARTY ON THE GROUND OF HIS/HER CONVERSION TO
ANOTHER RELIGION OR RENUNCIATION OF THE WORLD BY
ENTERING ANY RELIGIOUS ORDER, AND IT’S BEARING ON THE
RIGHT TO RELIGION?
III. WHETHER A STATELESS PERSON HAS THE PROTECTION OF

FUNDAMENTAL RIGHTS UNDER THE INDISTAN CONSTITUTION, IF SO,
WHAT IS THE SCOPE OF SUCH PROTECTION AND WHAT ROLE HAS A
MARRIAGE TO PLAY IN DETERMINING THE CITIZENSHIP OF SUCH
STATELESS PERSON?
IV. WHETHER CONSTITUTIONAL PRINCIPLES AND HUMAN RIGHTS

PREVAIL OVER THE DISPUTE OF INTERNATIONAL NATURE ARISING
FROM PERSONAL LAWS AND THE SCOPE OF JURISDICTION OF
DOMESTIC COURTS THEREOF?
V. WHETHER RACHEL IS SUBJECTED TO CONCEALMENT WHICH

RESULTED TO A CRUELTY BY RATHIN WHICH ALL IN ALL BECOME
CONTRIBUTING FACTOR TO GRANT DIVORCE?
VI. WHETHER THE AFFAIR OF RATHIN AMOUNTS TO RAPE COMMITED

AGAINST MARIA AND THAT THE COURT SHOULD NOT QUASH THE
CRIMINAL CASE AGAINST RATHIN?
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SUMMARY OF ARGUMENTS
I. WHETHER THE PETITIONS ARE MAINTAINABLE?
It is most humbly submitted before the honorable court that the present petitions are not
maintainable. It is most humbly submitted before the honorable court that the petition by
Rakshdayini is not maintainable as it does not arose any nature of in which public interest has
been violated moreover the petition filed by the said NGO involves the dispute of private
party which has been already settled by the Family Court. Also the rule of Locus Standi has
also not been fulfilled in this particular case. Also the petition of Tauhid the Spiritual Life is
also not maintainable as the petition contented by them involves the matter of International
nature which domestic court is not competent to have jurisdiction.

REQUESTING PARTY ON THE GROUND OF HIS/HER CONVERSION
TO ANOTHER RELIGION OR RENUNCIATION OF THE WORLD BY
ENTERING ANY RELIGIOUS ORDER, AND IT’S BEARING ON THE
RIGHT TO RELIGION?
It is most humbly submitted before the honorable court that the although the marriage cannot
be dissolved on the ground of his/ her conversion by the requesting party yet Rachel was
being induced and has to suffer a lot from the mischief acts of her husband which finally
made her to realize to relinquish the Hindu religion.

FUNDAMENTAL RIGHTS UNDER THE INDISTAN CONSTITUTION, IF
SO, WHAT IS THE SCOPE OF SUCH PROTECTION AND WHAT ROLE
HAS A MARRIAGE TO PLAY IN DETERMINING THE CITIZENSHIP
OF SUCH STATELESS PERSON?
It is most humbly submitted that the reason for the denial for the Indian Citizenship to
Rachel was according to the procedure embodied under the Indistan Citizenship Act that a
person applying for the Indian citizenship require to apply to the foreign registry office,
where the application would be evaluated on the number of factors including a verification to
determine if the individual has the criminal record and assessment of background of the
individual, Rachel having past criminal record in the City of Delaware in the State of New
Jersey of U.S. was denied of the Indistan citizenship by the Indistan authorities.
RESPONDENT TC-08

PREVAIL OVER THE DISPUTE OF INTERNATIONAL NATURE
ARISING FROM PERSONAL LAWS AND THE SCOPE OF
JURISDICTION OF DOMESTIC COURTS THEREOF?
It is most humbly submitted to this Honorable court that the domestic courts have no
jurisdiction with regard to international matter relating to personal laws. Also the petition
preferred by Tauhid The Spritual Life is not maintainable as such petition prevents Rachel
from leaving Indistan which is her human right and no petition can bar any person’s right to
move one country to another.
V. THAT RACHEL IS SUBJECTED TO CONCEALMENT WHICH

RESULTED TO A CRUELTY BY RATHIN WHICH ALL IN ALL
BECOME CONTRIBUTING FACTOR TO GRANT DIVORCE?
It is most humbly submitted to this honorable court that the court should take the relevant
factors which has induce Rachel to file the divorce against Rathin.
VI. THAT THE AFFAIR OF RATHIN AMOUNTS TO RAPE COMMITED

AGAINST MARIA AND THAT THE COURT SHOULD NOT QUASH THE
CRIMINAL CASE AGAINST RATHIN?
It is most humbly submitted to the court that the petition preferred by Rathin in order to
quash the criminal case is not maintainable as this case is still pending before the criminal
court.
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ARGUMENT ADVANCED
I. WHETHER THE PETITIONS ARE MAINTAIABLE?

It is most humbly submitted before the honorable court that the present petitions are not
maintainable.
1. THAT PETITION UNDER ARTICLE 32 IS NOT MAINTAINABLE
It is most humbly submitted before the honorable court that the petition by
Rakshdayini is not maintainable as it does not arose any nature of in which public
interest has been violated moreover the petition filed by the said NGO involves the
dispute of private party which has been already settled by the Family Court.1 Also the
rule of Locus Standi has also not been fulfilled in this particular case. No action lies in
the Supreme Court under Art.32 unless there is an infringement of a Fundamental
Right2as the Supreme Court has previously emphasized that “The violation of
Fundamental Right is the sine qua non of the exercise of the right conferred by
Art.32.”3Jurisdiction of the Supreme Court under Art.32 can be invoked only when
Fundamental Right has been infringed. 4No question other than relating to a
Fundamental Right will be determined in a proceeding under Art. 32. 5Thus, where
there is no infringement of Fundamental Right or scope for enforcement of any
Fundamental Right, the writ petition is not maintainable on the fragile ground.6
In the case of Janta Dal v H.S Choudhary7 the Supreme Court observed that, “It is
clear that only a person acting in a bonafide and having sufficient interest in the
proceeding of PIL will alone have as locus standi and can approach the court to wipe
out the tears of the poor’s and needy, suffering from violation of their fundamental
rights but not a person for personal gain or private profit or political motive or an
oblique consideration. Similarly a vexatious petition under the colour of PIL brought
before the court for vindicating any personal grievances deserves rejection at the
threshold.
1
Moot Proposition, ¶22
2
Andhra Industrial Works v. Chief Controller of Imports, AIR 1974 SC 1539.
3
Fertilizer Corp. Kamgar Union v. Union of India, AIR 1981 SC 344.
4
Gopal Das v. Union of India, AIR 1955 SC 1.
5
Coffee Bd. v. Joint C.T.O., AIR 1971 SC 870.
6
Federation of Bar Association in Karnataka v. Union of India, (2000) 6 SCC 715.
7
Janta Dal v H.S Choudhary 1992 (3) AI Cri LR (SC) 299.
RESPONDENT TC-08
In the case of S.P Gupta v Union of India 8 it was emphatically pointed out that the
relaxation of the rule of the locus standi in the field of PIL does not give any right to
the busy body or meddlesome interloper to approach the court under the guise of
Public Interest litigant. It was further observed that “But we must be careful to see
that the member of the public who approaches the court in case of this kind is acting
in bonafide and not for the personal gain or private profit or political motivation or
other oblique consideration. The court must not allow its process to be abused by
political and others to delay legitimate administrative action or gain a political
objective.In Neetu v State of Punjab9 the court made it very clear that court should not
allow its process to be abused for oblique consideration by masked phantom. Such
petitions should be rejected at the threshold and in appropriate cases exemplary costs
should be levied. The court should be careful to see whether attack in guise of public
interest is really intended to unlease a private vendetta, personal grouse or some other
mal fide object. In Ashok Lanka v Rishi Dixit 10 the court held that even in a case
where the petitioner in fact have moved the court in private interest and for redressal
of personal grievances the court in the furtherance of public interest may treat it
necessary to enquire into the state of affairs of the subject of litigation in the interest
of justice. Therefore it is humbly pleaded that Article 32 can be invoked only where
there is an infringement of fundamental rights. 11 it has also been held that the right to
invoke Article 32 exists where action is taken under the Ultra vires statutes or where
action is without jurisdiction or the principles of natural justice is violated 12. But in
the present case there has been no violation of the principle of natural justice and
action is taken within the ambit of reasonable jurisdiction of the courts.13
2. THAT PETITION UNDER ARTICLE 136 IS NOT MAINTAINABLE.
It is humbly submitted that the Special Leave Petition against the judgment of
Hon’ble High Court is not maintainable under Article 136 of the Constitution of India.
Article 136 empowers the Supreme Court to grant in discretion Special leave to
8
S.P Gupta v Union of India AIR 1982 SC 149.
9
Neetu v State of Punjab 2007 SC 758.
10
Ashok Lanka v Rishi Dixit 2005 AIR SCW 2676 also in case of Dr. B Singh v Union of India, AIR 2004 SC
1923.
11
Ujjambai v. State of Uttar Pradesh AIR 1962 SC 1321, Express Newspaper Ltd. Union of India AIR 1986 SC
872.
12
Bhagwandas v Union of India AIR 1956 SC 175, Janardhan Reddy v. State of Hyderabad AIR 1951 SC 217,
Star mills v State of Uttar Pradesh AIR 1984 SC 37.
13
Moot Proposition ¶ 22
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Appeal from any judgment, decree, determination, sentence or order in any cause or
matter passed or made by any court or tribunal in the territory of India. 14. It is humbly
submitted that SLP is not maintainable as Special Leave cannot be granted when
substantial justice has been done and no exceptional or special circumstances exist for
case to be maintainable [I]. Also, the Supreme Court should restrict itself to interfere
in the decisions of lower court. In U. Sree v. U. Srinivas, 15 the Court observed “If the
findings were not based on perverse reasoning or not recorded in ignorance of
material evidence or in exclusion of pertaining materials, interference with the same
under Article 136 of the Constitution would not be permissible” The discretionary
power under Article 136 is not normally exercised unless the demand of justice
requires interference16 or when the High Court has taken a view that is reasonably
possible17 or when the exercise is likely to be a futile exercise. Article 136 does not
confer a Right of Appeal, but merely, a discretionary power to the Supreme Court to
be exercised for satisfying the demands of justice under exceptional circumstances 18.
The SC observed in the Pritam Singh v. State19 that on careful examination of Article
136 of the Constitution, it seeks clear that the wide discretionary power with which
this court is invested under is to be exercised sparingly and in exceptional cases only,
as far as possible a more or less uniform standard should be adopted in granting a
Special Leave in the wide range of matters which can come up before it. This Court
had also in the case of P.S.R. Sadhanantam v. Aruachalam 20 substantiated the
reasoning for limiting the scope of SLP’s and observed that “the wider the
discretionary power, the more sparing its exercise. Several times this court has
stressed that parties promiscuously ‘provoke’ this jurisdiction; the Court
parsimoniously invokes the power. It is true that the strictest vigilance over the abuse
of the process of the court, especially at the expensively exalted level of the Supreme
Court, should be maintained.
14
Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai AIR 2004.
15
U. Sree v. U. Srinivas (2013) 2 SCC 1585 also, Ajay Arjun Singh v. Sharadendu Tiwari, AIR 2016 SC 1417;
and BCCI v. Cricket Association of Bihar, AIR 2014 SC 3194.
16
Siemens Ltd. v. Siemens Employees Union, (2011) 9 SCC 775.
17
Manoj H. Mishra v. Union of India, (2013) 6 SCC 313.
18
Bharat Petroleum Corporation Ltd. v R.C. Vaidya (2014) 2 SCC 657.
19
Pritam Singh v. State AIR 1950 SC 169.
20
P.S.R. Sadhanantam v. Aruachalam AIR 1980 SC 856.
RESPONDENT TC-08

REQUESTING PARTY ON THE GROUND OF HIS/ HER CONVERSION TO
ANOTHER RELIGION OR RENUNCIATION OF THE WORLD BY ENTERING
ANY RELIGIOUS ORDER AND ITS BEARING ON THE RIGHT TO
RELIGION?
It is most humbly submitted before the honorable court that the although the marriage
cannot be dissolved on the ground of his/ her conversion by the requesting party yet
Rachel was being induced and has to suffer a lot from the mischief acts of her husband
which finally made her to realize to relinquish the Hindu religion.
1. THAT THE HINDU MARRIAGE CAN BE DISSOLVED ON THE GROUND
OF CONVERSION OF RELIGION.
It is most humbly submitted that Hindu Marriage can be dissolved on the ground of
conversion to another religion as provided under the section 13 (1) (ii) of the Hindu
Marriage Act, 1955. The fact of the cases proofs that Rachel validly reconverted to
Judaism as it is stated that she went to synagogue and declared before the Rabi for her
willingness to reconvert to Judaism and to renounce the world. 21 The reconversion
into Judaism by Rachel was rightfully valid as backed by the cases listed below.
22
In the case of Skinner v. Skinner in that it was held that the change of religion must
be made honestly and without any intent to commit any fraud upon the law. 23
Rachel can rightfully get divorce under the Hindu Marriage Act even after her
reconversion into Judaism as in similar case listed below.
In the case of Vilyat Raj v. Smt. Sunita24 it was observed by the court that if both
parties to the marriage were Hindu at the time of marriage, Pre- nuptial law i.e. Hindu
Marriage Act even after applied even after conversion to Islam. Mohammad v. Mst
Mariam25 “When Conversion is and it has been noticed often only for the purpose of
marrying and then again reconverting to prior faith it becomes a necessary ground for
divorce. In the case of Suresh Babu v. Leela 26 in this particular case a husband
converted to Islam and the wife filed a petition for divorce on this ground. The
husband defence was that since she had given him such permission she was not
21
Moot Proposition ¶18
22
Skinner v. Skinner (1970) 2 SCJ 653
23
Kailash Sonkar v. Mayadevi AIR 1984 SC 600, Khzan Singh v. Union of India AIR 1980 Del 60.
24
Vilyat Raj v. Smt. Sunita AIR 1983 Del 351
25
Mohammad v. Mst Mariam AIR1936 Lah 666.
26
Babu v. Leela 2006 (3) KLT 891
RESPONDENT TC-08
entitled to seek divorce on this ground. The court however rejected her argument and
held that even if she had given her consent the act of renunciation of Hinduism and
Conversion to Islam is matrimonial wrong and the ground for divorce under Section
13 of Hindu Marriage Act 1955.Rachel was emotionally detached by the Hindu
Religion when Rathin told her about his affair with Maria 27, yet she supported Rathin
in the initial Trails28 but as time goes by her faith in religion weakened and she no
longer trust Rathin. From such scenario we can perceive that first she has been
induced to convert into Hindu, second she lost the faith in Hindu religion through
passage of time when she was disclosed about her husband’s affair and losing the trust
on him. Rachel from the initial time was drawn towards the Hindu Religion because
of the Rathin who showed her his calm and kind personality only and that later when
she learns about his affairs her trust has been shattered and therefore her faith also
weakened.
2. THAT RACHEL WAS INDUCED TO RECONVERT TO JUDAISM BY THE
ADULTEROUS RELATIONSHIP OF RATHIN WITH ANOTHER WOMEN.
It is most humbly submitted before the court that adultery was one of the main
inducing factor of reconversion to Judaism by Rachel. Rachel was devastated and
heartbroken by the revelation of affair by Rathin with another woman that her faith in
religion waivered and so she has been helpless and turned to her old religion so as to
reconvert to Judaism. Adultery or leading an unchaste life on the part/ of the
respondent to an application, and form the basis for making a request to the court for
judicial separation. Similarly it will be seen that one of the grounds for asking for
divorce under Section 13 is the fact that the respondent is living in adultery. 29 During
one of the intimate moment between Rathin and Rachel, Rathin confessed about his
affair with Maria. 30 Confession of the adultery by the adultery can be taken as ground
and means of taking divorce against such adultery. Sex is a biological urge. It has
been given a very high status. Hindu scriptures give Kama a religious and moral touch
as on it lies the continuity of the progeny. Marriage is sacred for sages and a part time
for the savages. Sex is inherently present in marriage. But when element of sex falls
outside the ambit of regulatory law of marriage, it becomes so abhorrent both morally
27
28
Supra note 19
29
Raja Gopalan v. Rajamma, 1996 Ker L.T. 891
30
RESPONDENT TC-08
and legally that it smashes the marital bond because it inflicts an unhealing injury and
even if it heals it leaves a scar. 31The confession of Rathin about his affair with Maria
to Rachel cannot be taken as an Privilege communication under section 122 of the
Indian Evidence Act, 1872 because the exception to such communication is when the
dispute is between the married parties, the parties may be allowed to bring
communication between them as an evidence. 32 In the case discussed below supports
the same situation.33In the case of Poppe v Poppe34 in a separation suit based upon
abandonment, defendant husband, interposing the defense of cruelty, testified that
plaintiff wife had told him that she had have illicit relations a number of times with
another man and that she thought that they “ Would elope and go away together.” The
testimony was admitted over plaintiff’s objection that it involve the confidential
communication between spouses and therefore was inadmissible under New York
civil Practice act Section 349. On appeal from a decision of the appellate division
affirming a judgment for the defendant, held, affirmed, three judges concurring in
result two judges dissenting. A confession of adultery which was designed to destroy
any confidence in the marriage could not have been prompted by affection,
confidence, or loyalty, and hence was not confidential within the meaning of the act.
In Getty v. Getty35 it was held that although it is general practice in matrimonial cases
not to act and grant relief upon uncorroborated confession of adultery, there is no
absolute rule of practice and no rule of law precluding the court from acting upon
such uncorroborated evidences and that the true test seems to be whether court is
satisfied from the surrounding circumstances in any particular and exception cases
that the confession is true, and, if so satisfied, it is open to the court to grant relief,
notwithstanding the absence of independent corroborative testimony. In Bachhanidhi
das v. Kamla Devi36it has been observed that “while it is true that evidence of adultery
has to be clear and definite and the allegation has to be proved beyond the reasonable
doubt it would be difficult to get direct evidences of the acts of the adultery. In the
instant case it has been stated that rarely the parties would be caught in the acts of
31
Saroj Rani v. Sudarshan Kumar Chadha, AIR 1984, SC 1562, Harvinder Kaur v. Harminder Singh AIR 1984
Del 66,
32
Section 122 of Indian Evidence Act, 1872.
33
34
Poppe v Poppe N.Y . 2d 312, 144 N . E. 2d 72 (1957)
35
Getty v. Getty (1907) L.R . 17 P.D.334
36
Bachhanidhi das v. Kamla Devi AIR 1980 Orissa 171
RESPONDENT TC-08
adultery. Circumstantial evidences must however be sufficiently strong and

conclusive.In the case of Smt. Aruna Jalan v. Captain Chand Jalan 37, it was held that
the charge of adultery or illicit connection made against the spouse is a serious matter
and it must rest on evidence of unimpeachable character. For it not only results in the
break- up of the marriage but also exposes the party charged with adultery to
perpetual blemish with the result that apart from the social censure the party also
cannot hope to settle down in matrimony again because of the stigma. Judged from
those standards there was completely paucity of any reliable evidences.
Adultery is an act generally done unseen that the symptoms do tell the shabby tale
through the behavior, indecencies, strong familiarity, exposition of inclination seen in
juxtaposition. 38 Thus the proof is based on the principle of preponderance of
probabilities as propounded by the Supreme Court in the Mani Shankar v. Radha
Devi39, N.G Dastane v. S Dastane 40 and in Kishore Ghosh v. Krishna Gosh41
3. THE RIGHT TO RELIGION.
As Swami Vivekananda said, “Religion as it is generally thought all over the world, is
said to be based upon faith and belief and in most cases consist only of different sects
of theories and that is the reason why we find all religions quarreling with each other.
These theories are again based upon faith and belief. Also Article 18 of the Universal
Declaration of Human Rights and International Covenant of Civil and Political Rights
recognized the freedom of religion as a human right. As Article stated that 42
“everyone has right to freedom of thought conscience and religion; this right includes
freedom to change his religion or belief and freedom either alone or in community
with others and in public and private to manifest his religion or belief in teaching,
practicing, worship and observance.“Right to conversion connotes 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 rational. Sometimes it may also be the result of losing faith
in one’s own religion because of the rigidity of its tenets and practices. Sometimes
37
Smt. Aruna Jalan v. Captain Chand Jalan AIR 1988 ALL. 239 at p. 242
38
39
Mani Shankar v. Radha Devi AIR 1992 SC 1534
40
N.G Dastane v. S Dastane AIR 1975 SC 1534
41
Kishore Ghosh v. Krishna Gosh AIR 1983 Cal. 327
42
Article 19, Universal Declaration of Human Rights 1948
RESPONDENT TC-08
one may even lose total faith in the very concept of the existence of God and turn to
Atheism. A change of religion, a consequence of any of the above reasons, falls
within the ambit of the “Right to Conversion”In the case of Commissioner Hindu
Religious Endowment, Madras v. S. Lakshmindra Thirtha Swamiar of Sri Shrurm
43
Mutt it was observed that the religion is matter of faith with individuals or
communities and it is not necessarily theistic. The religion undoubtedly as it is basic
in a system of belief or doctrine which is recorded by those who profess that the
religion as conducive to the spiritual well being but it will not be correct to say that
the religion is nothing else but a doctrine or belief. The guarantee under the
constitution of India not only protects the freedom of religious opinion but it also
protects acts that are done in pursuance of religion. In the Sanjin Dutta’s44 case,
Justice P.V Sawant observes that freedom of religion is the core Indian culture. Even
the slightest deviation shakes the social fibre. In his opinion the Indian constitution by
guaranteeing the freedom of conscience insured inner aspects of religious belief. The
external expression of it has been protected by guaranteeing right to freely practice
and propagates religion. Article 25 guarantees to every person the right to freely
profess and practice his/ her religion. This indicates that in India every person is not
only free to have faith in religious tenets of any sect but also freedom to practice
his/her belief by expression in any manner he likes. The word to profess a religion
indicates that in India every person has a right declare freely and openly his/her
religious belief and faith.45In Ratilal v. State of Bombay46, it has been observed that
“religious practices of performance of acts in pursuance of religious belief are much a
part of religion as faith or belief in particular doctrines”. The expression ‘right freely
to profess and practice his religion’ indicates that in India a person can declare freely
and openly his religious faith and can freely practice hi religion. Article 25, thus,
guarantees not only the freedom to have faith or belief in religions tenets of any sect
but also the freedom to declare his religion faith and to practice his religion. In
addition Article 25 guarantees to every person right to propagate any religion i.e. to
publicize his religious views. In A theist society of India, Nalganda District branch v.
43
Commissioner Hindu Religious Endowment, Madras v. S. Lakshmindra Thirtha Swamiar of Sri Shrurm Muwt
AIR 1954 SC 282.
44
Sanjin Dutta’s (1995) 3 SCC 619.
45
Punjab Rao v. D.P. Meshram AIR 1965 SC 1179.
46
Ratilal v. State of Bombay AIR 1954 SC 388.
RESPONDENT TC-08
Government of Andhra Pradesh47, it is clear that the object behind constituting India
into a secular state is not to prevent the practice of religion, but to provide liberty,
freedom, equality, fraternity between belonging to different religions. It is not the
object of the constitution to turn the country into irreligious place. Secularism is at
once an ideal and an inspiration “goal as well as striving, a product as well as a
process”. It is made of aggregation rather than segregation, of synthesis rather that
separatism, of pluralism rather than dominance. In M. Ismail Farqui etc v. Union of
India48, It is clear from the constitutional scheme that it guarantees equality in the
matter of religion to all the individuals and groups irrespective of their faith
emphasizing that there is no religion of the state itself. The preamble of the
constitution read in particular Article 25 to 28 emphasis this aspect and indicates that
is in this manner the concept of secularism embodied in the constitutional scheme as a
breed adopted by the Indian people has to be understood while examining the
constitutional validity of any touchstone of the constitution. The concept of
secularism is one facet of the right to equality woven as central golden thread.The
freedom of religion conferred by article 25 is not confine to citizens of India but
extends to all ‘person’ including aliens 49, and individuals exercising their rights
individually or through institutions 50.
FUNDAMENTAL RIGHTS UNDER THE INDISTAN CONSTITUTION, IF SO,
WHAT IS THE SCOPE OF SUCH PROTECTION AND WHAT ROLE HAS A
MARRIAGE TO PLAY IN DETERMINING THE CITIZENSHIP OF SUCH
STATELESS PERSON.
It is most humbly submitted that the reason for the denial for the Indian Citizenship to
Rachel was according to the procedure embodied under the Indistan Citizenship Act that
a person applying for the Indistan citizenship require to apply to the foreign registry
office, where the application would be evaluated on the number of factors including a
verification to determine if the individual has the criminal record and assessment of
background of the individual, Rachel having past criminal record in the City of Delaware
47
Atheist society of India, Nalganda District branch v. Government of Andhra Pradesh AIR 1992 AP 310
48
M. Ismail Farqui etc v. Union of India AIR 1995 SC 605
49
Commr., HRE v. Lakshmidra (1954) SCR 1005,Mittal S.P v. Union of India AIR 1983 SC 1 (Para 131),
Stainislaus Rev. v State of M.P AIR 1975 MP 163.
50
Supra note 4
RESPONDENT TC-08
in the State of New Jersey of U.S. was denied of the Indistan citizenship by the Indistan
authorities. 51
Prez v. Brownwell 52
the right to be the citizen of the state has been called “Man’s basic
right for it is nothing less than the right to have rights. The traditional concept of
statelessness, which comes from international perspective, follows the logic that because
one generally needs to be a citizen in order to receive the diplomatic protection from a
state, law international wrong is committed if another state’s citizen is wrong ( i.e. if a
stateless person is wronged). The notion that statelessness should not bar one from
realizing her human rights is embodied in the 1954 convention.
According to Article 1 of 1954 Convention relating to the Status of a Stateless person, A
Stateless person is “A person who is not considered as a national by any state under the
operation of its law.”
Apart from that there is a significant body of international law that has elaborated the
principle of non discrimination as a non-derogable norm that prohibits discrimination on
the basis of race, ethnicity and related criteria. India’s acceding of ICCPR 53, ICESCR54,
CRC55 and ratification of ICERD 56and CEDAW57 have widened the scope of protection
from the idea of compassion to rights. This development of a body of international law
which triggered the prohibition of nationality based discrimination has been further
encouraged by the advocacy efforts of international organizations, non-governmental
actors, and particular states. Also the recent increase in public information and advocacy
has served to remind international bodies and non-governmental organizations that the
persistence of statelessness is a complex matter that underlines the centrality of effective
protection. There is growing pressure from international NGOs, refugee organizations,
and human rights monitoring bodies to provide protection to those who do not fall under
either the refugee convention or the conventions on statelessness. There is a specific case
pertaining to the Chakmas from CHT, East Pakistan (presently Bangladesh) where the
51
52
Prez v. Brownwell 356 U.S 44, 64 (1958)
53
International Covenant on Civil and Political Rights, 1966. India acceded to the convention on 10 April, 1979.
54
International Covenant on Economic, Social and Cultural Rights, 1966. India acceded to the convention on 10
April, 1979.
55
Convention on the Rights of the Child, 1989. India acceded the convention on 11 December 1992.
56
International Convention on the Elimination of All Forms of Racial Discrimination, 1965. India ratifies the
convention on 03 December, 1968 with reservations.
57
Convention on the Elimination of All Forms of Discrimination against Women, 1979. India signed the
convention on 3o July 1980 and ratified it on 9 July 1993 with reservations.
RESPONDENT TC-08
Supreme Court had given a verdict in favour of the Chakmas with specific direction to
process their citizenship application through the process established by law. 58
It is mentionable here that a new public interest litigation, Swajan & Anr. Vs. Union of
India & Anr 59, is pending before the Supreme Court right now urging for specific
direction to confer citizenship/ refugee status to the Bangladeshi minorities staying in the
State of Assam and the Court has already issued notice to the respondents Union of India
and State of Assam. So it is evident that the expansion of human rights regime of stateless
persons of the second category has gathered momentum in India along with the expansion
of locus standi of foreigners staying in India. 60 Now it’s time to see whether Supreme
Court comes out with a decision based on human rights consideration or on the ground of
internal security and economic constraint of India. Countless number of deemed stateless
or deemed nationals are looking forward to get Justice!
The Supreme Court in the same case made a number of observations relating to the
protection of Chakma refugees in India: We are a country governed by Rule of Law. Our
Constitution confers certain rights on every human being and certain other rights on
citizens. Every person is entitled to equality before the law and equal protection of the
laws. So also, no person can be deprived of his life or personal liberty except according to
the procedure established by law. Thus the State is bound to protect the life and personal
liberty of every human being, be he a citizen or otherwise, and it cannot permit anybody
or group of persons…to threaten the chakmas to leave the State, failing which they would
be forced to do so…the State government must act impartially and carry out its legal
obligations to safeguard the life, health and well being of chakmas residing in the state
without being inhibited by local politics. Besides, by refusing to forward their
applications, the chakmas are denied rights, constitutional and statutory, to be considered
for being registered citizens of India. A subtle derivation from the above trend would
stand to claim that the obligation to protect refugees or particularly the stateless persons is
paramount. The importance of Article 21 of the Constitution can be well inferred from the
decisions rendered by the Supreme Court. Article 21 is a non-derogable right. It would be
therefore not incorrect to claim that the term “reducing statelessness” with regard to the
groups who are staying in India for a long period or for generations have been fully
58
National Human Rights Commission vs. State of Arunachal Pradesh, AIR 1996 SC1234.
59
Swajan & Anr. Vs. Union of India & Anr W.P.(C)No.243/2012, pending before the Supreme Court of India
60
Chairman, Railway Board &Ors. vs. Chandrima Das & Ors., AIR 2000 SC 988
RESPONDENT TC-08
incorporated into Indian Law via Article 21 of the Constitution of India.In the foreigners
act, a foreigner is defined as ‘a person who is not the citizen of India’. 61 This definition
however is not inclusive and does not state whether Stateless person are recognized as
Foreigners in India. Thus, a person who may possess the nationality of another country
but is present in India is considered as much a foreigner under this definition as a person
with no proof of his/her nationality.
PREVAIL OVER THE DISPUTE OF INTERNATIONAL NATURE ARISING
FROM PERSONAL LAWS AND THE SCOPE OF JURISDICTION OF
DOMESTIC COURTS THEREOF?
It is most humbly submitted to this honorable court that the domestic courts have no
jurisdiction with regard to international matter relating to personal laws. 62 Also the
petition preferred by Tauhid The Spiritual Life is not maintainable as such petition
prevents Rachel from leaving Indistan which is her human right and no petition can bar
any person’s right to move one country to another. According to Rajeev Dhawan,
“treaties are not just used as “a source of interpretation”, in respect of the statutes which
seek to implement that particular treaty. Under Indian law treaties are also used as a
“source of inspiration” to give meaning to legal rights and obligations within the legal
system. The first of such uses consists of interpreting statutes in the light of international
treaties. The second use is similar to that of the first in that it entails using human rights in
the fundamental rights chapter of the Indian constitution.”
The fundamental principle in treaty- implementing statutes is to be found in the decision
of the Supreme Court in the “Tractorexport Case”, wherein it stated: “Once Parliament
has legislated, the Court must first look at the legislation and construe the language
employed in it. If the terms of the legislative enactment do not suffer from any
ambiguity..., they must be given effect to even if they do not carry out the treaty
obligations. But the treaty or the Protocol becomes important if the meaning of the
expressions used by the Parliament is not clear and can be construed in more than one
way. The reason is that if one of the meanings which can be properly ascribed is in
consonance with the treaty obligations and the other meaning is not so consonant, the
meaning which is consonant is to be preferred.” It was Lord Denning who stated that it is
61
(3)(a) of Section 2 Foreigners Act 1946
62
RESPONDENT TC-08
the duty of courts to construe legislation so as to be in conformity with International Law

and not conflict with it. The Calcutta High Court has supported this proposition in Shri
Krishna Sharma v. State of Bengal. 63
In the case of civil rights Vigilance Committee S.L.S.R.C College of law v Union of
India64, Chief Justice Chandrshekhar observed that “the provision in Article 51 is not
enforceable by any court and if the Parliament does not enact any law for implementing
the obligations under a treaty entered into by the government of India with foreign
countries, court cannot compel parliament to make such law. In the absence of such law
court cannot also enforce the obedience of the government of India to its treaty
obligations with foreign countries. The government of India’s obligation under the
Gleneagles Accord and obligations attached to its membership of United Nations cannot
be enforced at the instance of the citizens of this country or association of such citizens by
courts in India unless such obligations are made part of the law of this country of
appropriate legislation. In Gramophone Company of India Ltd. V. Birendera Bahudhar
Pandey65 the Supreme Court observed that if in respect of any principle of International
law the Parliament says no the national court cannot say yes. National court shall approve
international law only when it does not conflict with national law.
In danzing Railways Official Case 66 the permanent court of Justice ruled that if in any
treaty the intention of the parties is to confer certain rights upon individuals then
International law will recognize such rights and will enforce them. In “Sheela Barse v.
Secretary Children’s Aid Society67”, while issuing directions to the State of Maharashtra,
the Supreme Court held that the conventions which had been ratified by India, and
elucidate norms for the protection of children, cast an obligation on the state to implement
their principles. Thus the court in a break from its earlier judgments came to the
conclusion that treaties, even if unincorporated into national law, have binding effect.
V. THAT RACHEL IS SUBJECTED TO CONCEALMENT WHICH RESULTED TO
A CRUELTY BY RATHIN WHICH ALL IN ALL BECOME CONTRIBUTING
FACTOR TO GRANT DIVORCE?
63
Shri Krishna Sharma v. State of Bengal AIR 1954 Cal 591
64
Civil rights Vigilance Committee S.L.S.R.C College of law v Union of India AIR 198 Kant 85.
65
Gramophone Company of India Ltd. V. Birendera Bahudhar Pandey AIR 1984 SC 667
66
danzing Railways Official Case P.C.I.J (1928) Series b No. 15
67
Sheela Barse v. Secretary Children’s Aid Society, 1987 SCR (1) 870
RESPONDENT TC-08
It is most humbly submitted to this honorable court that the court should take the relevant
factors which has induce Rachel to file the divorce against Rathin. In the case of Shobha
Rani v. Madhikar Reddi68 the Supreme Court examined the concept of cruelty. It was
observed that the term cruelty has not been defined in the Hindu Marriage Act. It has
been used in relation to or in respect of matrimonial duties and obligations. It is the
course of conduct of one spouse which adversely affects the other spouses. The cruelty
may be mental or physical, intentional or unintentional. In the case of V. Bhagat v. Mrs
D. Bhagat69 mental cruelty in section 13(1) (ia) can be broadly defined as that conduct
which inflicts upon the other party such as mental pain and suffering as would make it not
possible not for the parties to live together with each other. In other words, mental cruelty
must be of such a nature that parties cannot reasonably be accepted to live together.
In the case of Praveen Mehta v. Inderjit Mehta70 it has been held that mental cruelty is a
state of mind and feeling with one of the spouse due to behavior or behavioral pattern by
the other. Mental cruelty cannot be established by direct evidences and it is necessarily a
matter of inference to be drawn from the facts and the circumstances of the case. In the
case of A. Jayachandra v. Aneel Kaur. 71 It has been ruled that the question of mental
cruelty has to be considered in the light of norms of martial ties of the particular society
to which the parties belong their social values status and environment in which they live.
If from the conduct of the spouse it is established and or an inference can legitimately be
drawn that the treatment of the spouse is such that it causes an apprehension in the mind
of the other spouse about his/her mental welfare then the same would amount to cruelty.
In Vinita Saxena v. Pankaj Pandit 72 it has been ruled that as to what constitute mental
cruelty for the purpose of section 13(1) (ia) will not depend upon the numerical count of
such incident or only on the continuous course of such conduct but one has to really go by
the intensity, gravity and stigmatic impact of it when meted out even once and the
deleterious effect of it on the mental attitude necessary for maintaining a conducive
matrimonial home. In the case of Basant Prasad Sahu v. Nadit Sahu73 it was held that
cruelty physical or mental cruelty should be of such a nature and for a fairly lengthy
period where the relationship has been deteriorated to an extent that because of the acts
68
Shobha Rani v. Madhikar Reddi (1988) 1. SCC 105
69
V. Bhagat v.D Mrs Bhagat 1994 SCC (1) 337
70
Praveen Mehta v. Inderjit Mehta AIR 2002 SC 2582
71
A. Jayachandra v. Aneel Kaur (2005) 2 SCC 22
72
Vinita Saxena v. Pankaj Pandit (2006) 3 SCC 778
73
Basant Prasad Sahu v. Nadit Sahu 2019 (2) HLR (Jhar) DB 55
RESPONDENT TC-08
and the behavior of the spouse, the wronged party finds it extremely difficult to live with
other party.
VI. THAT THE AFFAIR OF RATHIN AMOUNTS TO RAPE COMMITED AGAINST
MARIA AND THAT THE COURT SHOULD NOT QUASH THE CRIMINAL
CASE AGAINST RATHIN?
It is most humbly submitted to the court that the petition preferred by Rathin in order to
quash the criminal case is not maintainable as this case is still pending before the criminal
court.74 Rape is the most hated crime, rape tantamount to a serious blow to the supreme
honor of a woman, and offends both, her esteem and dignity. It causes psychological and
physical harm to the victim leaving upon her indelible marks. 75 In the case of State of
76
Punjab v. Ram dev Singh rape is not only an offence against the person of a woman,
rather a crime against the society. It is a crime against the basic human right also violates
the most cherished fundamental right guaranteed under article 21 of the Constitution. In
the case of State of Punjab v. Gurmeet Singh and ors.77 A rapist not only violates victims
privacy and personal integrity, but inevitably causes serious psychological as well
physical harm in the process. Rape is not merely a physical assault it is often destructive
of the whole personality of the victim. A murderer destroy the physical body of the
victim, a rapist degrades the very soul of the helpless female.
In the case of Ajit Kumar v. State78 it was observed that even an uncorroborated
testimony of the prosecutrix may be enough to incarcerate a person, but such a testimony
must be worthy of reliance it must inspire the confidence of the court. In the case of
Dalip Saikia v. State of Assam79 in that case it was held that victim of sexual assault
needs no corroboration, it is by now an established position of law that the conviction can
be recalled even on sole uncorroborated evidence even if it is not supported by medical
evidences provided the testimony of the prosecutrix inspires confidence of the court and
found reliable.
74
75
Deepak Gulati v. State of Haryana, AIR 2013 SC 2071.
76
State of Punjab v. Ram dev Singh AIR 2004 SC 1290
77
State of Punjab v. Gurmeet Singh and ors AIR 1996 SC 1393
78
Ajit Kumar v. State 1998 (1) J.Cr. C37
79
Dalip Saikia v. State of Assam, 2009 (81) A.I.C 950.
RESPONDENT TC-08
PRAYER
Wherefore, in the light of the facts stated, issues raised, arguments presented and authorities
cited, the Petitioner(s) most humbly and respectfully prays and requests to the Hon’ble Court
to declare and hold:
1. THAT THE PETITIONS SHALL NOT BE HELD AS MAINTAINABLE.

2. THAT THE DECREE OF DIVORCE PASSED BY THE FAMILY COURT
SHALL BE UPHELD.
AND/OR
3. PASS ANY OTHER ORDER, AS IT DEEMS FIT, IN THE INTEREST OF

EQUALITY, JUSTICE AND GOOD CONSCIENCE.
All of which is most humbly and respectfully submitted and for this act of kindness the
Counsel for the Respondent shall duty bound forever pray.
Place- Capital of Union of Indistan
Date: 06th October 2019
Sd/-
Counsel for the Respondents

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LAW COLLEGE DEHRADUN, FACULTY OF UTTARANCHAL UNIVERSITY

BEFORE THE HON’BLE SUPREME COURT OF INDISTAN

RAKSHAK DAYINI AND RATHIN..............................................................PETITIONER

TAUHID- THE SPIRITUAL LIFE.................................................................PETITIONER

PETITION INVOKED UNDER ARTICLE 32 & ARTICLE 136 READ

MEMORANDUM OF ARGUMENTS FOR THE PETITIONER

HEADINGS PAGE NO.

S.C.C. SUPREME COURT CASES

Sr. No. Title Citation page(s)

2 A. Jayachandra v. Aneel Kaur (2005) 2 SCC 22 24

3 Ajay Arjun Singh v. Sharadendu AIR 2016 SC 1417 13

5 Andhra Industrial Works v. 10

6 Ashok Lanka v Rishi Dixit 2005 AIR SCW 2676 11

7 Babu v. Leela 2006 (3) KLT 891 14

8 Bachhanidhi das v. Kamla Devi AIR 1980 Orissa 171 16

9 Basant Prasad Sahu v. Nadit 2019 (2) HLR (Jhar) DB 55 24

10 BCCI v. Cricket Association of AIR 2014 SC 3194. 12

11 Bhagwandas v Union of India AIR 1956 SC 175 11

&Ors. vs. Chandrima Das & Ors

14 Civil rights Vigilance Committee AIR 198 Kant 85. 22

15 AIR 1971 SC 870 10

16 Commissioner Hindu Religious 17

18 Dalip Saikia v. State of Assam 2009 (81) A.I.C 950 25

19 Danzing Railways Official Case P.C.I.J (1928) Series b No. 15 23

20 Deepak Gulati v. State of AIR 2013 SC 2071 24

21 Dr. B Singh v Union of India AIR 2004 SC 1923 11

22 Dr. B Singh v Union of India, AIR 2004 SC 1923

24 Federation of Bar Association in (2000) 6 SCC 715 10

26 Getty v. Getty (1907) (1907) L.R . 17 P.D.334 15

27 Gopal Das v. Union of India AIR 1955 SC 1. 10

28 Gramophone Company of India AIR 1984 SC 667 22

29 Harvinder Kaur v. Harminder AIR 1984 Del 66 14, 15

30 Inita Saxena v. Pankaj Pandit (2006) 3 SCC 778

31 Jamshed Hormusji Wadia v. AIR 2004 12

32 Janardhan Reddy v. State of AIR 1951 SC 217 11

34 Kailash Sonkar v. Mayadevi AIR 1984 SC 600 13

35 Khzan Singh v. Union of India AIR 1980 Del 60 13

36 Kishore Ghosh v. Krishna Gosh AIR 1983 Cal. 327 16

37 M. Ismail Farqui etc v. Union of AIR 1995 SC 605 18

38 Mani Shankar v. Radha Devi AIR 1992 SC 1534 16

40 Mohammad v. Mst Mariam AIR 1936 Lah 666 13

41 N.G Dastane v. S Dastane AIR 1975 SC 1534 16

42 National Human Rights 1996 AIR 1234 20

43 Neetu v State of Punjab 2007 SC 758 11

44 P.S.R. Sadhanantam v. AIR 1980 SC 856 12

46 Praveen Mehta v. Inderjit Mehta AIR 2002 SC 2582 23, 24

47 Prez v. Brownwell 356 U.S 44, 64 (1958) 19

48 Pritam Singh v. State AIR 1950 SC 169 12

49 Punjab Rao v. D.P. Meshram AIR 1965 SC 1179 17

50 Raja Gopalan v. Rajamm 1996 Ker L.T. 891 14

51 Ratilal v. State of Bombay AIR 1954 SC 388 17, 18

52 S.P Gupta v Union of India AIR 1982 SC 149. 11

53 Saroj Rani v. Sudarshan Kumar AIR 1984, SC 1562 14, 15

54 Sheela Barse v. Secretary 23

55 shobha Rani v. Madhikar Reddi (1988) 1. SCC 105 23

56 Siemens Ltd. v. Siemens (2011) 9 SCC 775. 12

60 Star mills v State of Uttar AIR 1984 SC 37 11

62 State of Punjab v. Ram dev AIR 2004 SC 1290 25

67 Vilyat Raj v. Smt. Sunita AIR 1983 Del 351 13

STATUTES AND RULES

 CODE OF CIVIL PROCEDURE, 1908.

 CONSTITUTION OF INDIA, 1950.