SHRI NJ YASASWY VIRTUAL MOOT COURT COMPETITION, 2022

BEFORE THE HON’BLE APEX COURT OF VINATHDESH

CRIMINAL APPEAL_____/2022

JURISDICTION UNDER ARTICLE 134 OF THE INDIAN CONSTITUTION

IN THE MATTER OF

MR. BHUSAN AND ORS........................... APPELLANT

V.

STATE OF VINATHDESH..........................RESPONDENT

MEMORANDUM ON BEHALF OF THE RESPONDENT

MEMORANDUM FOR RESPONDENT MEMORANDUM FOR RESPONDENT

 TABLE OF CONTENTS

1. INDEX OF AUTHORITIES…………………………………………………………..

2. STATEMENT OF JURISDICTION………………………………………..................

3. STATEMENT OF FACTS………………………………………………….................

4. STATEMENT OF ISSUES……………………………………………………………

5. SUMMARY OF ARGUMENTS…………………………………………………..…

6. ARGUMENTS ADVANCED………………………………………………………..

I. Whether the Appeal put forth by the appellant is admissible in the court of
law?
II. With Reference to the Prohibition of Child marriage Act, 2006 Is this marriage
legitimate?

7. PRAYER……………………………………………………………………………..

MEMORANDUM FOR RESPONDENT 1

 LIST OF ABBREVIATIONS

ACC According

AIR All India Reporter

ANR Another

CMPO Child Marriage Prohibition Officers

GOVT. Government

HC High Court

HON’BLE Honorable

i.e. That is

JMFC Judicial Magistrate Of The First Class

MANU Manupatra

NGO Non-Governmental
Organization
ORS Others

PCMA Prohibition Child

Marriage Act,2006
SC Supreme Court

SCC Supreme Court Cases

S/D Signed

SEC. Section

V. Versus

MEMORANDUM FOR RESPONDENT 2

 INDEX OF AUTHORITIES

CASES

AISHA KUMARI V/S. STATE OF NCT OF DELHI & ORS.

ASSOCIATION FOR SOCIAL JUSTICE AND RESEARCH V. UNION

OF INDIA & ORS., 2010 , (2010) SCC Online Del. 1964
AYYAH PILLI V. MANIK PILLAI (1965), 1 Madras Law Journal 172

BUDHAN V. MAMRAJ, 1970 PLR 102

JWALA PRASAD V. EMPEROR ,82 Ind Cas 139

MAMINDLA SAILOO V/S MAMINDLA PASMA & ANOTHER,

MANU/AP/1347/2006
NEETU SINGH VS. STATE & ORS. , 77(1999)DLT601

P.A. SARAMMA V. G. GANAPATULU , AIR 1975 AP 193

PARSARAM V. SMT. NARANI DEVI AIR ,1972 All 357

PRADEEP TOMAR AND ANOTHER V. STATE OF UP AND

ANOTHER ,MANU/UP/0092/2021

RAVI KUMAR V. THE STATE AND ANR., MANU/SC/1480/2018

YUNUSBHAI USMANBHAI SHAIKH V/S STATE OF GUJARAT,

MANU/GJ/0876/2015

MEMORANDUM FOR RESPONDENT 3

 BOOKS

Prohibition of Child Marriage Act,2006 , Bare Act

Hindu Laws

STATUES

Prohibition of Child Marriage Act,2006

Hindu Marriage Act ,1955

ONLINE

SOURCES

Manupatra

SCC ONLINE

Legal Services India

Live Law

Air Online

MEMORANDUM FOR RESPONDENT 4

 STATEMENT OF JURISDICTION

The Appellant has filed this appeal under article 134 of the Constitution of India as High court of
Haflong state has dismissed their plea. The Respondent maintains that no violation of rights has taken
place after the amendment. Therefore, the Hon’ble court need not entertain its jurisdiction in this
appeal.
Article 134 of Indian Constitution which states;
(1) An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal
proceeding of a High Court in the territory of India if the High Court has on appeal reversed an
order of acquittal of an accused person and sentenced him to death; or has withdrawn for trial
before itself any case from any court subordinate to its authority and has in such trial convicted the
accused person and sentenced him to death; or

(c) certifies under Article 134A that the case is a fit one for appeal to the Supreme Court: Provided
that an appeal under sub clause (c) shall lie subject to such provisions as may be made in that behalf
under clause ( 1 ) of Article 145 and to such conditions as the High Court may establish or require

(2) Parliament may by law confer on the Supreme Court any further powers to entertain and hear
appeals from any judgment, final order or sentence in a criminal proceeding of a High Court in the
territory of India subject to such conditions and limitations as may be specified in such law

MEMORANDUM FOR RESPONDENT 5

 STATEMENT OF FACTS

1. Bharat was a small farmer earning his income from agricultural land of 4 acres and his
small grocery shop in the same village. He along with his wife Bhuvana and three girl-
children Rekha, Reshmi, and Rasmi aged about 14 years, 11 years, and 9 years
respectively, lived in the village of Zanskar in Haflong State, VinathDesh.

2. Bharat and Bhuvana are very religious and do not miss any opportunity to visit temples
and pilgrimage. One day upon receiving information from the local people that a five-
day tour of pilgrimage is organized by the local people for elders, they immediately
gave their consent to go on a pilgrimage in a bus arranged by them. Bhuvana left her
three children at her brother, Bhusan’s place who lived in the same village. Bhusan was
married to Bhavishya, ten years ago and they are the maternal uncle and aunt of
Bhuvana’s children. They are childless.

3. The entire group of pilgrims while returning, unfortunately, met with an accident and
even Bharath and Bhuvana also suffered severe injuries which were very grevious
and were admitted to ICU. The treatment continued for one month in ICU but
eventually, they succumbed to their injuries.

4. During this period of hospitalization, all the money which was earned and saved by
Bharat was completely exhausted for their treatment. Even Bhusan also spent the
money available with him for their recovery, but could not save them.

5. Bhusan, brother of Bhuvana being the lone relative of his nieces has taken the
responsibility of the parenthood and upbringing of these three children after the death
of their parents.

MEMORANDUM FOR RESPONDENT 6

6. Bhusan was a small farmer and his source of income is mainly from agriculture. Bhusan
is a well-known person and popular for helping people in need in the village and has a
very good reputation but since he is now into tough times and is unable to meet the
regular expenses for maintaining the house, it has led to his ill health. Of late, Bhusan’s
wife Bhavishya was also diagnosed with chronic illness and had to get treated and the
treatment continued for a longer time coupled with huge medical expenses which
resulted in more financial stress on him. Moreover, Bhusan does not have any other
alternate source of income.

7. Rekha, who is 19 years old now, pursuing her graduation, was helping her sisters and
simultaneously was doing a part-time job to support her uncle and the family. Society
criticized Bhusan for his inefficiency to earn and run the family. Moreover, Rekha is of
marriageable age as per the societal standard and instead of getting her married, he was
taking a risk by sending her to earn. Rekha also felt humiliated from this view of the
society and realized that it may not be good and proper for her and her uncle’s reputation
to remain unmarried, so she decided to marry.

8. Bhusan being the maternal uncle, having good faith to give a prosperous future and
security to Rekha proposed her to get married into a rich family of Rehan, who is 23
years old, well settled, and is a native of Nubra town. As she was pursuing her
graduation and exams were scheduled, marriage dates were postponed from March to
June 2018.

9. Bhusan was promised by Rehan’s Family to allow Rekha for her further education and
also to extend cooperation to her if she is willing to get better employment. As Bhusan
had a lot of love and affection towards his niece and was under the compelling
economic situation, he agreed for the marriage. Rehan has shown his full faith
and willingness to marry Rekha and support Bhusan in all aspects. So, he has proposed
to his niece Rekha to get her married into a family which is well settled and has ethical
values for the protection of her interests.
MEMORANDUM FOR RESPONDENT 7
10. In the meanwhile, the Child Marriage (Prohibition) Act, 2006 has been amended where
the marriageable age of girls was increased from 18 to 21 years. The Child Marriage
(Prohibition) Act, 2006 has been enacted with the objective that unless women progress
on all fronts including their physical, mental and reproductive health, the nation cannot
claim progress. The other objective is to have a check on typical paternalism and to
provide access to opportunities to girls concerning education, employment, health etc.

11. The Constitution of VinathDesh guarantees gender equality as part of the fundamental
rights and also guarantees the prohibition of discrimination on the grounds of sex.
Hence the law was amended in 2018 and the objective of the 2018 Amendment is to
give equality of rights to marriage to all irrespective of gender difference. This
amendment also aimed at lowering the maternal mortality rate by improving the
nutritional level of a prospective mother. It is also important to bring down the
incidence of teenage pregnancies, which are not only harmful to women's overall health
but also result in more miscarriages and stillbirths. Further, it aims to lessen the
financial burden of parents/guardians by providing a scope of employment to have
financial security for the girl child.

12. While this being so, a social worker of Zanskar informed regarding the marriage of
Rekha to an NGO named Prakriti which is an organization concerned with the concept
of “Beti Suraksha”. The NGO Prakriti is a non-profit organization working exclusively
for the welfare of girl children (Daughter).

13. The NGO Prakriti, accordingly informed the said matter to the Child Marriage
Prohibition Officers (CMPO) and upon receiving this information, the CMPO has
approached the Judicial Magistrate of the First Class (JMFC) and the JMFC has issued
a notice to prevent the solemnization of child marriage under the Child Marriage
(Prohibition) Act, 2006.

MEMORANDUM FOR RESPONDENT 8

14. Despite the notice being served to Bhusan and Rehan, they continued to make necessary
arrangements to solemnize the marriage between Rehan and Rekha. On receiving the
said information of preparation of marriage the JMFC directed to arrest Rehan and
Bhusan.

15. Aggrieved by the action of the police and recently amended law, they have approached
the High Court of Haflong State. However, the High Court of Haflong State has
dismissed their plea by stating the action of the police is legal and the amendment is
not violating any rights of them.

16. Aggrieved by the judgment of the High Court of Haflong State, Bhusan and Rehan have
approached the Hon'ble Apex Court of VinathDesh

MEMORANDUM FOR RESPONDENT 9

 STATEMENT OF ISSUE

ISSUE I : WHETHER THE APPEAL PUT FORTH BY THE APPELLANT IS

ADMISSIBLE IN THE COURT OF LAW?

ISSUE II : WITH REFERENCE TO PROHIBITION OF CHILD MARRIAGE

ACT, 2006 IS THIS MARRIAGE LEGITIMATE?

MEMORANDUM FOR RESPONDENT 10

 SUMMARY OF ARGUMENTS

ISSUE I: WHETHER THE APPEAL PUT FORTH BY THE APPELLANT IS ADMISSIBLE

IN THE COURT OF LAW?

The appeal put forth by the Appellant is not admissible in the court of law as child marriage is against
the law but also a violation of the child's human rights. Acc. to Sec.13 of PCMA, Despite the notice
being served to them, they were preparing to solemnize the marriage. Hence the Judicial Magistrate
Officer directed to arrest them under Sec. 16(3)(a).

ISSUE II: WITH REFERENCE TO PROHIBITION OF CHILD MARRIAGE ACT,

2006 IS THIS MARRIAGE LEGITIMATE?

The marriage is not legitimate under Prohibition of Child Marriage Act, 2006. In the present case
after the amendment of the PCMA the marriageable age was increased for girls hence rekha being a
19-year-old girl is a minor. Thus, the marriage is a child marriage and acc. to the Sec. 14 child
marriage is void ab initio.

MEMORANDUM FOR RESPONDENT 11

 ARGUMENT ADVANCED

ISSUE I: WHETHER THE APPEAL PUT FORTH BY THE APPELLANT IS ADMISSIBLE

IN THE COURT OF LAW?

Before this Hon’ble Apex Court of VinathDesh, it is humbly contended that the appeal put forth by
the appellant (Bhusan & Rehan) is not admissible in the court of law and the mentioned court has the
jurisdiction over the case. It is not barred by the limitation.

From the facts of the present case, it is well established that the appellant were solemnizing the
marriage of a minor girl (Rekha). She is the niece of the appellant, aged 19.

The Child Marriage (Prohibition) Act, 2006 has been amended where the marriageable age of girls
was increased from 18 to 21 years. This actively illustrates the fact that Appellant's niece Rekha
cannot marry before the age of 21 years.

Acc. To the Sec.13(1) of the Prohibition of child marriage Act, 2006.

Notwithstanding anything to the contrary contained in this Act, if, on an application of the Child
Marriage Prohibition Officer or on receipt of information through a complaint or otherwise from any
person, a Judicial Magistrate of the first class or a Metropolitan Magistrate is satisfied that a child
marriage in contravention of this Act has been arranged or is about to be solemnized, such
Magistrate shall issue an injunction against any person including a member of an organization or an
association of persons prohibiting such marriage.

In addition to the above fact, CMPO after being informed regarding the marriage by an NGO called
Prakriti which exclusively works for the welfare of girl child approached JMFC. JMFC after
receiving this information issued notice to prevent the solemnization of child marriage under the
Child Marriage (Prohibition) Act,2006.
Regardless of the notice being served, the Appellant continued to make necessary arrangements for
the wedding.

MEMORANDUM FOR RESPONDENT 12

A recent judgment in Ravi Kumar v. The State and Anr.,1 the Delhi High Court reiterated that
marriages solemnized in contravention of age prescribed under Section 5(iii) of the Hindu Marriage
Act, 1965 are void. The court held that the judgment was based on public policy and the Legislature
was conscious of the fact that if marriages, performed in contravention of the age restriction, lead to
serious consequences and exploitation of women.
Similarly In the present case, Rekha is a minor and there is a contravention of age prescribed under
Section 5(iii) of Hindu Marriage Act,1955, leading to a void marriage. Thus, this marriage can't be
solemnized.
In accordance with, Sec.16(3)(a) of the PCMA, it shall be the duty of the Child Marriage Prohibition
Officer—
(a) to prevent solemnization of child marriages by taking such action as he may deem fit;

Further in the case of Ayyah Pilli V. Manik Pillai2 and Jwala Prasad V. Emperor3 case, Madras and
Allahabad HC held that magistrate officer is Legally bound to make an inquiry about the age of the
parties and also take necessary actions in case of any violation.
However in the present case, Judicial Magistrate Officer upon receiving the information of marriage
of a minor girl , the JMFC issued a notice to prevent the solemnization of child marriage under the
PCMA.. Despite the notice being served to the appellant, they continued to make necessary
arrangements to solemnize the marriage. Thus, violating the law.

In a conference organized by Law commission, the commission stated that child marriage is not only
against the law but also a violation of the child's human rights. Also, as child marriages are not
automatically void and require divorce to terminate, it is recommended that there should be child
marriage dissolution law.
As per Sec.11(1) of the Act, Where a child contracts a child marriage, any person having charge of
the child, whether as parent or guardian or any other person or in any other capacity, lawful or
unlawful, including any member of an organization or association of persons who does any act to
promote the marriage or permits it to be solemnized, or negligently fails to prevent it from being
solemnized, including attending or participating in a child marriage, shall be punishable with
rigorous imprisonment which may extend to two years and shall also be liable to fine which may
extend up to one lakh rupees.

1
Ravi Kumar v. The State and Anr., MANU/SC/1480/2018
2
Ayyah Pilli V. Manik Pillai (1965), 1 Madras Law Journal 172
3
Jwala Prasad V. Emperor ,82 Ind Cas 139
MEMORANDUM FOR RESPONDENT 13
As a result, JMFC directed to arrest the appellant in order to prevent the solemnization of child
marriage.

Subsequently, in Parsaram V. Smt. Narani Devi4, The Hon’ble SC held that major members of the
family be punished for their act in making arrangements for celebration of child marriage.
After the Prohibition of Child Marriage Act, 2006, the child marriage has been prohibited and also
made punishable. Now, the father or the guardian or as the case may be, do not have any right to give
their minor children in marriage.
Also, in the dictum of the case Neetu Singh V. The state and ors.5 The HC of Delhi held that marriage
of minor is neither void nor voidable but it is punishable
It is pertinent to note that similarly in the present case , the appellant were solemnizing the marriage
of a minor girl (Rekha). Thus they are liable for punishment under Sec.11 of PCMA.

That, Further in the case of Association for social justice and research V. Union of India& ors.6,
2010 recognized child marriage as a violation of human rights.

Thus by stating the above mentioned cases and references, it is humbly submitted before this Hon’ble
SC that the Appeal put forth by the appellant is not admissible in the court of law. Considering that
the appellant were well aware of the fact that PCMA has been amended Where the marriageable age
of girls has been increased from 18 to 21 years, The objective of the 2018 amendment is to give
equality of rights and to have a check on typical paternalism. Still the appellant solemnized the
marriage of a minor girl (Rekha). When CMPO were informed about the marriage then, JMFC issued
a notice to the appellant to prevent the solemnization of child marriage. Despite of the notice being
served, the appellant continued to make necessary arrangements of the wedding. So, JMFC directed
to arrest the appellant.

4
Parsaram V. Smt. Narani Devi ,AIR 1972 All 357
5
Neetu Singh V. State & Ors., 77(1999) DLT601
6
Association for social justice and research V. Union of India& ors., 2010 , (2010) SCC Online Del. 1964
MEMORANDUM FOR RESPONDENT 14
ISSUE II: WITH REFERENCE TO PROHIBITION OF CHILD MARRIAGE ACT,
2006 IS THIS MARRIAGE LEGITIMATE?

Before this Hon’ble Apex Court of VinathDesh, it is humbly contended that the marriage is not
legitimate under Prohibition of Child marriage Act, 2006 and the mentioned court has the jurisdiction
over the case. It is not barred by the limitation.

In accordance with sec-14 of the Prohibition of Child marriage Act, 2006, Any child marriage
solemnized in contravention of an injunction order issued under section 13, whether interim or final,
shall be void ab initio.

Subsequently, In P.A. Saramma v. G. Ganapatulu (1975)7, The High Court of Andhra Pradesh
explicitly ruled that a child marriage is void ab initio. Also, the Division Bench of this High Court
consisting of Obul Reddi , C.J. and Madhusudan Rao, J. , held that a Marriage between the
bridegroom and the bride, if their ages do not satisfy the requirements of clause (iii) of section 5 of
H.M.A. , cannot be solemnized as it is prohibited under clause (iii) of section 5, and that it is not
necessary that, in the event of contravention of clause (iii)of Section 5, and that such a marriage is
void ab initio and is no marriage in the eye of law.

Similarly, in the present matter, the marriage solemnized was a child marriage as after the
amendment of the Prohibition of Child marriage Act, 2006 the marriageable age of girls was
increased from 18 to 21 yrs. Rekha being a 19-year-old girl is a minor. Thus, acc. To above
judgement of the HC, child marriage is void ab initio.

7
P.A. Saramma v. G. Ganapatulu , AIR 1975 AP 193
MEMORANDUM FOR RESPONDENT 15
Equivalently, In Aisha Kumari V/s. State of NCT of Delhi & Ors.8 Delhi High Court seeks Central
govt's response on plea to declare all child marriages void ab initio. Also, that Section 3(1) of
Prohibition of Child Marriage Act which provides that a child marriage is voidable should be
declared unconstitutional.

In consonance with Sec-10 of the act, Whoever performs, conducts, directs or abets any child
marriage shall be punishable with rigorous imprisonment which may extend to two years and shall
be liable to fine which may extend to one lakh rupees unless he proves that he had reasons to believe
that the marriage was not a child marriage.

In Yunusbhai Usmanbhai Shaikh v/s State of Gujarat9, in this case court held that solemnizing of
child marriage is punishable under Section 10 of Prohibition of Child marriage Act, 2006. Also, the
consent of a minor is hardly of any consequence acc. to the act. Further HC held that Prohibition of
Child marriage Act, 2006 is secular act and they apply to all communities including the Muslim laws
and Hindu laws. It over rides the personal law. However, high court held that the act is enacted to
prevent the child marriages which is still prevalent in this country, and most common in Muslim
community.
Furthermore, The Punjab and Haryana High Court has made it clear that a minor girl’s consent was
insignificant in child marriage cases and the court may exercise its jurisdiction to send her to an
appropriate “home” till she became a major.

In a significant judgment Pradeep Tomar and Another V. State of UP and Another10, the Allahabad
High Court has recently righteously and remarkably held that a minor girl cannot be allowed to live
in a matrimonial relationship with a man she claims to be her husband even if she had left Her home
of her own accord and married the man out of her own free will. The Single Judge Bench of Justice
JJ Munir ruled. The Bench specifically stated that So long as the prosecutrix is a minor she cannot be
permitted to accompany the accused Pintoo, whom she claims to have married.

8
Aisha Kumari V/s. State of NCT of Delhi & Ors. , Bar & Bench,
https://www.barandbench.com/news/delhi-high-court-seeks-central-govts-response-plea-to-declare-
all-child-marriages-void-ab-initio(Jun 5, 2022)
9
Yunusbhai Usmanbhai Shaikh v/s State of Gujarat, MANU/GJ/0876/2015
10
Pradeep Tomar and Another V. State of UP and Another, MANU/UP/0092/2021
MEMORANDUM FOR RESPONDENT 16
As a matter of fact of our present case it is highly regarded that the consent of Rekha is insignificant
as she is a minor and being a minor she is not allowed to be in a matrimonial relationship with a man
until she became a major.

Further Acc. to Sec- 11 of the PCMA, - (1) Where a child contracts a child marriage, any person
having charge of the child, whether as parent or guardian or any other person or in any other
capacity, lawful or unlawful, including any member of an organization or association of persons who
does any act to promote the marriage or permits it to be solemnized, or negligently fails to prevent it
from being solemnized, including attending or participating in a child marriage, shall be punishable
with rigorous imprisonment which may extend to two years and shall also be liable to fine which may
extend up to one lakh rupees:

Provided that no woman shall be punishable with imprisonment.

(2) For the purposes of this section, it shall be presumed, unless and until the contrary is proved, that
where a minor child has contracted a marriage, the person having charge of such minor child has
negligently failed to prevent the marriage from being solemnized.

In the dictum of the case Mamindla Sailoo v/s Mamindla Padma & Another11, Division bench of the
court held that solemnization of child marriage is punishable under the section 11 of PCMA. Also at
the time of the marriage the spouses were minor and it is neither void nor voidable, and also not a
valid marriage. Section 11 renders child marriage solemnized in contravention of conditions (1), (3),
(4) and (5) of Section - 5 under Hindu Marriage Act. Violation or breach of any of them would be
treated as a breach of pre - requisite for a valid marriage rendering it void.

Similarly, in the present case Rekha is considered a minor under the amendment act of PCMA i.e. the
marriageable age of girls was increased from 18 to 21 yrs. So the marriage which was being
solemnized is considered invalid and the persons responsible for the solemnization of child marriage
should be held liable for the punishment under Sec-11 of PCMA.

11
Mamindla Sailoo v/s Mamindla Padma & Another, MANU/AP/1347/2006
MEMORANDUM FOR RESPONDENT 17
Subsequently in Budhan v. Mamraj12, the court held that a marriage may not be valid if performed in
contravention of age requirement.

Thus by stating the above mentioned cases and references it is humbly submitted before the Hon’ble
SC that the marriage is not legitimate. Delhi High court in Association for Social Justice & Research
Union of India & others, has held that child marriage is a grave form of human rights violator. If the
marriage is solemnized then, the Human Rights such as right to education, right to development, right
to health, right to employment, right to a dignified life, right to participation and well-being and
personality development will be deprived to the girl child. Thus, the objective of the 2018
Amendment is to give equality of rights to marriage to all irrespective of gender difference. This
amendment also aimed at lowering the maternal mortality rate by improving the nutritional level of a
prospective mother. It is also important to bring down the incidence of teenage pregnancies, which
are not only harmful to women's overall health but also result in more miscarriages and stillbirths.

12
Budhan v. Mamraj , 1970 PLR 102
MEMORANDUM FOR RESPONDENT 18
 PRAYER

WHEREFORE, IN THE LIGHT OF ISSUES RAISED, ARGUMENTS ADVANCED AND

AUTHORITIES CITED, IT IS HUMBLY PRAYED THAT THIS HON'BLE COURT MAY
BE PLEASED TO HOLD, DIRECT AND DECLARE:

1. That the appeal, put forth by the appellant in the Hon’ble court of law, must be quashed
since there was a violation of human rights.
2. That the appellant shall be punished for the solemnizing of child marriage.

And/ or pass any other order as the Hon'ble Court may deem fit in terms of equity, justice and
good conscience.

And for this act of kindness the Respondent shall forever be duty bound.

Date: June 08, 2022

Place: Vinathdesh

S/d-

Counsel for the Respondent

MEMORANDUM FOR RESPONDENT 19