WRITTEN SUBMISSION ON BEHALF OF PETITIONER FOR CLASS MOOT 1 SEMESTER 9, ARMY

INSTITUTE OF LAW

CLASS MOOT

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BEFORE THE HON’BLE FAMILY COURT

AT CHANDIGARH

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CIVIL SUIT NO.____/2020

IN THE MATTER OF

(HARSH)

(PETITIONER)
VS
(RADHIKA)
(RESPONDANT)
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MEMORIAL ON THE BEHALF OF PETITIONER

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SUBMITTED BY:

LOKENDRA SINGH

ROLL NO. 1605

5TH YEAR (9TH SEM.)

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TABLE OF CONTENTS

S.NO. TOPIC PAGE NO.

1. LIST OF ABBREVIATIONS 2

2. INDEX OF AUTHORITIES 3

3. TABLE OF CASES 5

4. STATEMENT OF JURISDICTION 6

5. STATEMENT OF FACTS 7

6. STATEMENT OF ISSUES 8

7. SUMMARY OF ARGUMENTS I

8. ARGUMENTS ADVANCED 10

9. PRAYER FOR RELIEF 11

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LIST OF ABBREVIATIONS

& And

¶ Paragraph

AIR All India Reporter

ALL Allahabad

Anr Another

AP Andhra Pradesh

Art. Article

Cr. Criminal

Edn. Edition

Govt. Government

HMA Hindu Marriage Act

Hon’ble Honourable

i.e. That is

No. Number

PC Privy Council

SC Supreme Court

SCC Supreme Court Cases

u/s Under Section

vs. Versus

Vol. Volume

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INDEX OF AUTHORITIES

A. Treatises, Books, Reports And Digests

1. A.G.Gupte, Hindu Law, (1st ED. : 2003) (Premier Publishers Delhi)

2. Acharya Shuklendra, “Hindu Law”, Reprint 2009, Modern Law Publications, New
Delhi
3. Anjani Kant, “Women and the Law”, A.P.H. Publishing Corporation, New Delhi
4. Asaf A.A.Fyzee, Outlines of Muhammadan Law, (5th ED. : 2008) (Oxford
University Press New Delhi)
5. Dr. Paras Diwan, “Family Law”, Ninth Edition, 2009, Allahabad Law Agency
6. Dr.Paras Diwan, Law of Marriage and Divorce, (5th ED. : 2008), (Universal Law
Publishing Co)
7. M.N. Srinivasan‟s, “Commentary on The Hindu Marriage Act, 1955”, Second
Edition, Delhi Law House
8. M.N.Das, Marriage and Divorce, (6th ED. : 2002) (Eastern Law House New Delhi)

9. Halsbury‟s Law of India, Family Law II, (Lexis Nexis) Vol. 28, 2007

10. Bhatnagar, Manual of marriage and Divorce, (Unique Law publisher) Edn, 4th
2009
11. Kumud Desai, Indian Law of Marriage and divorce, (Wadhwa Publications) Edn 7
th 2008
12. Dr V. Krishnamachari, “DNA Fingerprinting Evidence and its Legal
Admissibility”1994 Cri LJ (Journal Section) 1.
13. Mookerjee, Marriage Sepration and divorce, (Kamal Law House) Edn 4th 2008

B. Journals Referred

1. All India Reporter

2. Supreme Court Cases
3. Indian Law Reporter
4. Lexis library
C. Database Referred

1. www.judis.nic.in
2. www.lexisnexis.com
3. www.manupatrafast.com

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4. www.scconline.com

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D. Legal Dictionary

1. Aiyer P.R., Advanced Law Lexicon, (3rd ed., 2005)

2. Garner B.A., Black‟s Law Dictionary, (9th ed., 2009)

3. Greenberg Daniel, Stroud‟s Judicial Dictionary of Words and Phrases, (4th ed.),
Sweet and Maxwell, Vol. 4
4. Oxford Advanced Learners Dictionary, (7th ed., 2008)

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S.NO Name of the Case and Case Citation Page No.

.
1. Bhabani Prasad Jena v/s. Convenor Secretary, Orissa State Commission for II
Women and another (2010) 8 SCC 633
2. Dipanwita Roy v/s Ronobroto Roy (2015) 1 SCC 365 IV

3. H.M. Prakash v/s. State of Karnataka ILR 2004 Kar.2637 II

4. Kanchan Bedi and Ors. v/s. Gurpreet Singh Bedi MANU/DE/0024/2003 I

5. Kharak Singh v/s. State of Uttar Pradesh 1963 AIR 1295 II

6. Mr. ‘X’ v/s. Hospital ‘Z’ AIR 1999 SC 495 II

7. Nand Kishore v/s Smt Munnibai AIR 1979 M.P. 45 IV

8. Ragunath v/s Vijai AIR 1972 Bom 132 VI

9. Rohit Sekar v/s. N.T.Tiwari (2012) 12 SCC 554 II

10. Savitabai v/s. Chandraban AIR 2006 II

MP 135
11. Seema Sharma v/s. Amar Sharma 2008 CRILJ 3445 I

12. Sharda v/s. Dharmpal MANU/SC/0260/2003 I

13. Surjeet v/s Rajkumari AIR 1967 Punj. 172 VI

14. Surjit Kumar v/s Smt Raj Kumar ILR (1966) 2 pUNJ. 370 IV

TABLE OF CASES

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STATEMENT OF JURISDICTION

THE PETITIONER HAS APPROACHED THIS HON’BLE FAMILY COURT OF

CHANDIGARH, UNDER SECTION 7 OF FAMILY COURTS ACT, 1984.1

1
Section 7- Jurisdiction.-
(1) Subject to the other provisions of this Act, a Family Court shall- (1) Subject to the other provisions of this
Act, a Family Court shall-"
(a) Have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under
any law for the time being in force in respect of suits and proceedings of the nature referred to in the
explanation. Explanation.-The suits and proceedings referred to in this sub-section are suits and proceedings of
the following nature, namely:
(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the
marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or
judicial separation or dissolution of marriage.
(e) a suit or proceeding for a declaration as to the legitimacy of any person.

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STATEMENT OF FACTS

(1) Harsh and Radhika met at a friend’s party. They had a short courtship, after which
they got married on the 9th of November 2019. They moved into their matrimonial
home in Chandigarh, and started their new lives.

(2) Harsh was rather surprised when in late February; Radhika told him that she was
expecting a baby. When they visited a doctor, they were informed that Radhika was
four months pregnant.

(3) Harsh confronted her saying that she was already expecting a baby when they got
married, and that the baby was not his. He demanded a paternity test, which was
refused by Radhika.

(4) On this Harsh said he wanted a divorce and Radhika strongly contested the charges.

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STATEMENT OF ISSUES

ISSUE 1

WHETHER OR NOT PRIVACY LAWS APPLY TO THE WIFE WITH RESPECT TO

HER PREGNANCY?

ISSUE 2

WHETHER OR NOT THE HUSBAND CAN CLAIM DIVORCE ON THIS GROUND?

ISSUE 3

WHETHER OR NOT DIVORCE CAN BE GRANTED WITHIN ONE YEAR OF

MARRIAGE?

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SUMMARY OF ARGUMENTS

CONTENTION 1: THAT PRIVACY LAWS DOES NOT APPLY TO WIFE WITH

RESPECT TO HER PREGNANCY.

It is humbly submitted before the hon’ble court that in case of disputed paternity of a child
mere compassion of DNA obtained from the body fluid or body tissues of the child with his
father and mother can offer infallible evidence of biological parentage, from the precedents
and the rules laid down by the courts it is clear that court can call for individual to submit for
paternity test in the interest of justice and to do right by the parties and it would not be
considered as a violation of right to privacy guaranteed under the Constitution of India.

CONTENTION 2: THAT THE HUSBAND CAN CLAIM ANNULMENT ON THE

ABOVE GROUND.

A voidable marriage is a perfectly valid marriage so long as it is not avoided. A voidable marriage can
be avoided only on the petition of one of the parties to the marriage. If one of the parties does not
petition for annulment of marriage, the marriage will remain valid. As long as it is not avoided all the
legal consequences of a valid marriage flow from it. It confers a status of husband and wife on the
parties. The children are legitimate and all mutual rights and obligations of the marriage arise from
it. Therefore, it is argued that the instant case fulfils the ground for annulment of marriage
under Section 12 (1) (d) of the Hindu Marriage Act - as the pregnancy began prior to
solemnization of marriage and the respondent has made no effort to rebut this contention.

CONTENTION 3: THAT ANNULMENT CAN BE GRANTED WITHIN ONE YEAR OF

MARRIAGE.

It is humbly submitted before the hon’ble court that the petitioner is entitled to be granted an
annulment within one year of marriage under Section 12 (1) (d) of the Hindu Marriage Act as
the petitioner fulfils the essentials laid down by the provision. The petitioner fulfils all
conditions laid down by the statute and therefore, is entitled to seek a decree of annulment of
marriage from the hon’ble court - regardless of the fact that the marriage between the
petitioner and respondent has not completed a year. Furthermore, the statue itself lays down a
limitation period for initiation of proceedings for annulment i.e. within one year of
solemnization of marriage. Hence, the petitioner’s plea to be granted an annulment should be
allowed.

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ARGUMENTS ADVANCED

CONTENTION 1: THAT PRIVACY LAWS DOES NOT APPLY TO WIFE WITH

RESPECT TO HER PREGNANCY.

It is humbly submitted before the hon’ble court that in case of disputed paternity of a child
mere compassion of DNA obtained from the body fluid or body tissues of the child with his
father and mother can offer infallible evidence of biological parentage. In the case of
Kanchan Bedi and Ors. vs. Gurpreet Singh Bedi2 the hon’ble Delhi high court held that “It
appears to be difficult to resist that the law, as it presently stands, does not contemplate any
impediment or violation of rights in directing persons to submit themselves for DNA test,
especially where the parentage of a child is in controversy”.

The hon’ble Supreme Court of India in the case of Sharda vs. Dharmpal3 has held that “A
matrimonial court has the power to order a person to undergo medical test and passing of
such an order by the court would not be in violation of the right to personal liberty under
Article 21 of the Indian Constitution” further the court held that “normally without there
being medical examination, it would be difficult to arrive at a conclusion as to whether the
allegation made by spouse against the other spouse seeking divorce on such ground, is correct
or not. In order to substantiate such allegation, the petitioner would always insist on medical
examination. If the respondent avoids such medical examination on the ground that it violates
his/her right to privacy or for a matter right to personal liberty as enshrined under Article 21
of the Constitution of India, then it may in most of such cases become impossible to arrive at
a conclusion. It may the very grounds on which divorce is permissible nugatory. Therefore,
when there is no right to privacy specially conferred by Article 21 and with the extensive
interpretation of the phrase “personal liberty” this right has been read into Article 21. It
cannot be treated as absolute right. What is emphasized is that some limitations on this right
have to be imposed and particularly where two competing interests clash. In matters of such
nature where the legislature has conferred a right upon his spouse to seek divorce on such
grounds, it would be the right of that spouse which comes in conflict with the so called right
to privacy of the respondent. Thus, the court has to reconcile these competing interests by
balancing the interest involved.”

In Seema Sharma vs. Amar Sharma4, also it was observed that law as it presently stands do
not contemplate any impediment or violation of rights in directing a person to submit to DNA
test. The court has the power to order a person to undergo medical test and such an order
would not be in violation of the right to personal liberty under Article 21 of the Constitution.

2
Kanchan Bedi and Ors. vs. Gurpreet Singh Bedi, MANU/DE/0024/2003.

3
Sharda vs. Dharmpal, MANU/SC/0260/2003.

4
Seema Sharma vs. Amar Sharma, 2008 CRILJ 3445.

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However, the court should exercise such a power only when it is expedient in the interest of
justice and when the fact situation in a given case warrants such an exercise.

The Apex court in Bhabani Prasad Jena vs. Convenor Secretary, Orissa State
Commission for Women and another5, held that “In a matter where paternity of a child is in
issue before the court and when modern science gives the means of ascertaining the paternity
of a child, there should not be any hesitation to use those means whenever the occasion
requires. When there is apparent conflict between the right to privacy of a person not to
submit himself forcibly to medical examination and duty of the court to reach the truth, the
court must exercise its discretion only after balancing the interests of the parties and on due
consideration whether for a just decision in the matter, DNA test is eminently needed.”

In Kharak Singh vs. State of Uttar Pradesh6, the Supreme Court held that Right to Privacy
is not a guaranteed right under our Constitution. It is clear from various decisions which have
been delivered by the Supreme Court from time to time that the right to life and personal
liberty which has been guaranteed under our Indian Constitution is not an absolute one and it
can be subject to some restrictions. Also it is on this basis that the constitutionality of the
laws affecting right to life and personal liberty are upheld by the Supreme Court which
includes medical examination. It is on this basis that various courts in the Country have
allowed for DNA test to be used in the investigation and in producing evidence.7

In Mr. ‘X’ vs. Hospital ‘Z’8, the Supreme Court held that the right to privacy has been culled
out by the provisions of Article 21 and other provisions (Article 20 (3)) of the constitution.
However the right was not absolute and may be lawfully restricted from prevention of crime
disorder or protection of health or morals or protection of rights and freedom of others. The
constitutional guarantee is not absolute9. The right of privacy under Article 21 was not
absolute and such a direction could be given looking to the conclusiveness of the DNA test
and its scientific accuracy.10

There is nothing brutal or offensive or shocking in taking the blood sample for DNA test,
under the protective eye of law. The constitutional mandate does not say that no person shall
be deprived of his personal liberty under any circumstances. On the contrary, if such
deprivation of right or personal liberty is in accordance with the procedure established by
law, the same does not violate Article 21 of the constitution of India. 11 Therefore from the
above precedents and the rules laid down by the courts it is clear that court can call for
5
Bhabani Prasad Jena vs. Convenor Secretary, Orissa State Commission for Women and another, (2010) 8 SCC
633.
6
Kharak Singh vs. State of Uttar Pradesh, 1963 AIR 1295.
7
Dr V. Krishnamachari, “DNA Fingerprinting Evidence and its Legal Admissibility”1994 Cri LJ (Journal
Section) 1.
8
Mr. ‘X’ vs. Hospital ‘Z’, AIR 1999 SC 495.
9
Rohit Sekar vs. N.T.Tiwari, (2012) 12 SCC 554.
10
Savitabai vs. Chandraban, AIR 2006 MP 135.
11
H.M. Prakash vs. State of Karnaataka, ILR 2004 Kar.2637.

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individual to submit for paternity test in the interest of justice and to do right by the parties
and it would not be considered as a violation of right to privacy guaranteed under the
Constitution of India.

CONTENTION 2: THAT THE HUSBAND CAN CLAIM ANNULMENT ON THE

ABOVE GROUND.

It is humbly submitted before the hon’ble court that Section 12(1)(d) provides ground to
avoid a marriage. Section 12(1)(d) reads as—

“that the respondent was at the time of the marriage pregnant by some person other

than the petitioner.”

Section 12(1)(d) should be read with Section 12(2)(b). The following things must be
proved to avoid a marriage on the ground of wife's pregnancy. They are:—

(1) that the respondent (which can be only a wife) was pregnant at the time of marriage;

(2) that she was pregnant by someone (known or unknown) other than the husband;

(3) that the husband was at the time of the marriage ignorant of wife's pregnancy;

(4) that marital intercourse with consent of the wife have not taken place since husband
came to know the pregnancy of the wife;

(5) that the proceedings have been instituted within one year from the

date of the marriage.

A voidable marriage is a perfectly valid marriage so long as it is not avoided. A voidable

marriage can be avoided only on the petition of one of the parties to the marriage. If one of
the parties does not petition for annulment of marriage, the marriage will remain valid. As
long as it is not avoided all the legal consequences of a valid marriage flow from it. It confers
a status of husband and wife on the parties. The children are legitimate and all mutual rights
and obligations of the marriage arise from it.

Under Section 12 (d) it must be proved that she was pregnant at the time of the marriage. If
she was pregnant before the marriage and child was born before the marriage, than marriage
cannot be annulled. A marriage nullified under Section 12 is that the respondent was at the
time of marriage pregnant by some person other than the petitioner. The petitioner however,
must satisfy the court that the fact of pregnancy was not known to him at the time of
marriage. The respondent wife must be proved to be pregnant from some person other than
her husband and mere loose sexual relations of wife with such another person is not a ground
for annulment of such marriage in this connection the Punjab and Haryana High court
observed:

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“A perusal of section 12(l)(d) of the Act would show that the marriage may be annulled only
if at the time of marriage the girl was pregnant by some person other than the husband. That
sheds a considerable light on the intention of the legislature. It shows that past unchastity is
not made a ground for annulment of marriage. Past illicit relations of a girl with some man
may per se not be a factor to be taken into consideration by all persons agreeing to enter into
a marriage tie. This is a circumstance which in all cases, would result in breakage of the
marriage negotiations can then it be said that the relations were under any obligation to
disclose about the girls past unchastity? The answer must be no”.12

In Nand Kishore vs. Smt Munnibai13 the M.P. High court held that the petition for
annulment of a marriage shall not be entertained if the conditions laid down in its various
sub-clauses are not satisfied. It is therefore incumbent on a petitioner to plead and for a court
to find that the petitioner has strictly fulfilled the requirements of those sub-clauses. In order
to succeed under clause (d) of section 12(1) of the Act the petitioner must not only show the
existence of pregnancy at the time of marriage, but should also prove that he was ignorant of
that fact at the time of marriage, that the proceeding were instituted within a period of one
year fixed by the statute.
According to the factual matrix of the instant case, the parties to the suit solemnized their
marriage on 9th November, 2019. In late February 2020, the petitioner was made aware of
the respondent-wife’s pregnancy, which was confirmed to be of four months by a doctor. It is
clear that the term of the pregnancy exceeded the duration of the marriage and co-habitation
between the parties, thereby raising the petitioner’s suspicions as to the paternity of the
unborn child.

Furthermore, the respondent’s refusal to submit to a paternity test has not laid rest to the
ambiguity in the mind of the petitioner. Rather, it has magnified and increased the petitioner’s
apprehensions as to the legitimacy of the child. The apex court in Dipanwita Roy vs.
Ronobroto Roy14 held that DNA testing is the most legitimate and scientific means, which
the husband could use, to establish his assertion of infidelity. It is just as vital for the wife, for
her to rebut the assertions made by the husband, and to establish that she had not been
adulterous. In this particular case, the appellant-wife was granted liberty to comply with or
disregard of court to submit to a DNA test. The court opined that if she accepts the DNA test,
it will determine the veracity of accusations levelled by the respondent-husband. In case she
declines to comply with the test, the allegation would be determined by the concerned Court,

12
Surjit Kumar vs. Smt Raj Kumar ILR (1966) 2 pUNJ. 370.
13
AIR 1979 M.P. 45.
14
Dipanwita Roy vs. Ronobroto Roy, (2015) 1 SCC 365.

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by drawing a presumption of the nature contemplated in Section 114 of the Indian Evidence
Act.

Therefore, it is argued that the instant case fulfils the ground for annulment of marriage under
Section 12 (1) (d) of the Hindu Marriage Act - as the pregnancy began prior to solemnization
of marriage and the respondent has made no effort to rebut this contention.

CONTENTION 3: THAT ANNULMENT CAN BE GRANTED WITHIN ONE YEAR

OF MARRIAGE.

It is humbly submitted before the hon’ble court that the petitioner is entitled to be granted an
annulment within one year of marriage under Section 12 (1) (d) of the Hindu Marriage Act as
the petitioner fulfils the essentials laid down by the provision, which is reproduced below-

Section 12. (2) Notwithstanding anything contained in sub-section (1), no petition for
annulling a marriage –

(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless
the court is satisfied -

(i) that the petitioner was at the time of the marriage ignorant of the facts
alleged;

(ii) that proceedings have been instituted in the case of a marriage solemnised
before the commencement of this Act within one year of such commencement
and in the case of marriages solemnised after such commencement within one
year from the date of the marriage; and

(iii) that marital intercourse with the consent of the petitioner has not taken
place since the discovery by the petitioner of the existence of the said
ground.15

Section 12 provides that any voidable marriage may be annulled by a decree of nullity if the
wife was at the time of the marriage pregnant by some person other than her husband.
Conditions to be fulfilled are - firstly, petitioner must be ignorant of the pregnancy prior to
marriage; secondly, the proceeding for dissolution of the marriage must be instituted within

15
Section 12 (2) (b), Hindu Marriage Act, 1955.

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one year from the date of the marriage; thirdly, there should not be marital intercourse with
the consent of the petitioner since the discovery of the pregnancy of the wife.

In Surjeet vs. Rajkumari16, the court held that the filing of the petition within the stipulated
period of one year is a strict requirement of law and for no cause any delay can be condoned.
If the petition is not presented within that period, the petition is not maintainable and the
respondent has to reconcile to his laches.

In Ragunath vs. Vijai17, the Bombay High Court held that the period of one year is absolute
for filing a petition delay cannot be co-related to discovery of any fraud, where an alleged
fraud is followed with reconciliation it amounts to consent, rendering a petition unmaintable.
Generally, as the wife and husband would wait before going to court, only improper and
unreasonable delay can bar a petition; mere delay is no bar and in such cases discretion is to
be exercised liberally.

In the instant case, the petitioner fulfils all conditions laid down by the statute and therefore,
is entitled to seek a decree of annulment of marriage from the hon’ble court - regardless of
the fact that the marriage between the petitioner and respondent has not completed a year.
Furthermore, the statue itself lays down a limitation period for initiation of proceedings for
annulment i.e. within one year of solemnization of marriage. Hence, the petitioner’s plea to
be granted an annulment within a year of marriage is not unsubstantiated, as the statute itself
demands action to be taken in this time frame.

16
AIR 1967 Punj. 172.
17
AIR 1972 Bom 132.

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PRAYER FOR RELIEF

In light of the facts of the case, issues raised, arguments advanced and authorities cited, the

Counsel on behalf of the Complainant humbly prays before the Hon‟ble Court to kindly

adjudge and declare that:-

 Privacy laws does not apply to wife.

 It is a ground for annulment.
 Annulment can be granted within one year of marriage.

AND/OR

Pass any other order which the bench deems fit in the best interest of Justice, Equity and

Good Conscience, and for this act of kindness the Counsels on behalf of the Appellant as in

duty bound shall forever pray.

All of which is respectfully submitted

__________________________

Sd/-

Counsel for Petitioner.

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