INTRA DEPARTMENT MOOT COURT COMPETITION, 2022

MEMORIAL ON THE BEHALF OF THE APPELLANT

INTRA DEPARTMENT MOOT COURT COMPETITION,2022

DEPARTMENT OF LAWS, PANJAB UNIVERSITY.

Before
THE SUPREME COURT OF INDIA

RAHUL………………………….………………………….APPELLANT

v.

STATE OF PUNJAB…...………………...………………RESPONDENT

[MEMORIAL ON THE BEHALF OF THE APPELLANT]

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TABLE OF CONTENTS

TABLE OF CONTENTS ..........................................................................................................2

LIST OF ABBERVIATIONS ...................................................................................................3

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

STATUTES REFERRED .........................................................................................................4

STATEMENT OF JURISDICTION ........................................................................................7

STATEMENT OF ISSUES .......................................................................................................8

SUMMARY OF ARGUMENTS ...............................................................................................9

ARGUMENTS ADVANCED ................................................................................................. 11

PRAYER ................................................................................................................................. 25

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LIST OF ABBERVIATIONS

AIR - ALL INDIA REPORTER

ANR. - ANOTHER

ART. - ARTICLE

CRPC - THE CODE OF CRIMINAL PROCEDURE

CRWP - CRIMINAL WRIT PETITION

DR - DOCTOR

EDN. - EDITION

FIR - FIRST INFORMATION REPORT

GOVT. - GOVERNMENT

HC - HIGH COURT

HON’BLE - HONOURABLE

IPC - INDIAN PENAL CODE

ORS - OTHERS

POCSO - THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES

PW - PROSECUTION WITNESSES

SC - SUPREME COURT

SCC - SUPREME COURT CASES

SLP - SPECIAL LEAVE TO PETITION

V. - VERSUS

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INDEX OF AUTHORITIES
CASES
Amnider Kaur and Anr. v. State of Punjab and Ors.,CRM-M 29790-2009 ......................... 18
Bharatha Matha & Anr. v. R. Vijaya Renganathan & Ors., AIR 2010 SC 2685 .................. 22
Francis Coralie Mullin v.The Administrator,1981 AIR 746 ................................................ 11
Jordan Diengdeh v. S.S. Chopra, AIR 1985 SC 935 ........................................................... 23
K. S. Puttuswamy and Anr. vs Union Of India And Ors.,AIR 2017 SC 4161 ..................... 12
Maneka Gandhi v Union of India,AIR 1978 SC 597 .......................................................... 11
Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945 ........................................... 23
Nargis v State of Punjab,(2014) SCC 3588 ........................................................................ 12
S.Varadarajan v. State of Madras, 1965 AIR 942 ............................................................... 17
Sarla Mudgal v. Union of India, AIR 1995 SC 1531 .......................................................... 23
Shafin Jahan v. K.M. Ashokan & Ors, AIR 2018 SC 357 ................................................... 12
Shyam and Anr. v. State of Maharashtra, AIR 1995 SC 2169............................................. 17
State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84................................................. 23
Yunus Khan v. State of Haryana,(2014) SCC 3588 ............................................................ 14

STATUTES REFERRED
The Constitution of India
Code of Criminal Procedure, 1973 (Act 2 of 1974)
The Indian Penal Code, 1860 (Act 45 of 1860)
The Protection of Children from Sexual Offences Act, 2012 (Act 32 of 2012)
The Guardians and Wards Act, 1890 (Act 8 of 1890)
The Hindu Minority and Guardianship Act, 1956 (Act 32 of 1956)

BOOKS REFERRED
Dr. Paras Diwan and Peeyushi Diwan, Family Law (Allahabad Law Agency, Faridabad,
Twelfth edn., 2021)
Narender Kumar, Constitutional Law of India (Allahabad Law Agency, Faridabad, Tenth
edn.,2018)

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STATEMENT OF FACTS
1. That the appellant, Rahul, is a Hindu Boy aged 28 years,
2. That the appellant has exemplary achievements in the field of medical sciences and has excellent
command on the subject.
3. That Nazneen is a Muslim girl aged 16 years.
4. That the appellant was one among the various eminent speakers which the school authorities
invited for a seminar. Captivated by his charm and personality, Nazneen approached the
appellant for career guidance and also complimented him for his extremely attractive personality
and communication skills.
5. That subsequent to the event, Nazneen started visiting the appellant frequently for one or the
other reason. After a gap of two months, she proposed to the appellant, who accepted her
proposal.
6. That Nazneen’s parents started objecting to their relationship, and also threatened the appellant
to stay away from their daughter.
7. That Nazneen then voluntarily eloped with the appellant, and the couple went to the temple and
solemnized marriage according to Hindu ceremonies. Subsequently, with the apprehension of
killing, the couple sought protection under Article 21 of the Constitution of India from the
Hon’ble High Court of Punjab and Haryana, which was granted.
8. That in the order granted protection under Article 21, the Hon’ble High Court refrained from
commenting on the validity of the marriage of the petitioners, and also expressly clarified that its
Order shall not be construed in the sense to not initiate any action against the petitioners, for
violation of other laws, by them, if any.
9. That in the same case, the Hon’ble High Court granted the custody of Nazneen to the appellant,
pursuant to which the couple started living together.
10. That after six months, due to the persistent arguments on one or the other things the relationship
of the appellant and Nazneen deteriorated.
11. That subsequently, Nazneen left the appellant and returned to her parents. Convinced by her
parents’ advice, she decided to end the marriage, and approached the police along with her
parents to register an FIR against the appellant, under Section 361 and Section 503 of the IPC,
Section 3 and Section 4 of the POCSO and Section 9 & Section 10 of the Child Marriage
Prohibition Act.

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12. That following the registration of the FIR, a medical examination of Nazneen was conducted
where the possibility of attempted sexual intercourse could not be ruled out.
13. That the appellant after knowing about the proceedings initiated against him filed an
Anticipatory bail plea before the District and Sessions Court, which was denied by the Court.
Following this denial, the appellant moved to the Hon’ble High Court which allowed the
Anticipatory Bail Application.
14. That the appellant moved another Application before the Hon’ble High Court of Punjab &
Haryana under Section 482 of the CrPC for quashing of the FIR, pleading that it was in
pursuance of the Orders of this very Hon’ble High Court, that the estranged couple were living
together as husband and wife. He drew the attention of the Hon’ble High Court to the fact that it
was the Hon’ble Hight Court which granted the custody of Nazneen to the appellant.
15. That the petition for quashing of FIR, however, was dismissed by the Hon’ble High Court
observing that the order passed by this Court was not meant to immune the petitioners from any
legal action that could be initiated against them for committing any offence under other statutes.
16. That crestfallen and aggrieved, the appellant decided to challenge the Order of the Hon’ble High
Court of Punjab & Haryana before this August Court, which has entertained a Special Leave to
Petition under Article 136 of the Constitution of India.

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STATEMENT OF JURISDICTION
S.L.P. No.___/2022

The Counsels to the appellant humbly submit to the jurisdiction of The Hon’ble Supreme Court
of India by filing for Special Leave Petition (SLP) under Article 1361 of the Constitution of
India, 1950. This Article mentions the appellate jurisdiction of the Supreme Court in regard to
any judgement or order by any court under the territory of India.

1
Article 136-Special leave to appeal by the Supreme Court
1. Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to
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.
2. Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court
or tribunal constituted by or under any law relating to the Armed Forces.

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STATEMENT OF ISSUES

1. Whether the Hon’ble High Court of Punjab & Haryana was justified in granting protection to
the estranged couple under Article 21 of the Constitution of India or not?
2. Whether the Order granting the custody of the estranged wife to the petitioner immune him
from the subsequent offences, if any or not?
3. Whether the FIR against Rahul is liable to be quashed or not?
4. Whether the Hon’ble High Court under the shield of Article 21 of the Constitution of India
indirectly promoted Child Marriage ignoring the Special Statute?
5. Whether personal laws prevail over special law?

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SUMMARY OF ARGUMENTS

1. Whether the Hon’ble High Court of Punjab & Haryana was justified in granting
protection to the estranged couple under Article 21 of the Constitution of India or not?
No person shall be deprived of his life or personal liberty except according to the procedure
established by law, as per Article 21 of the Constitution of India. Article 21 has been held to
cover within it’s ambit such as Rights as Right to live with dignity, Right to marry anyone of
one’s own choice, and Right to Privacy. The couple in this case was under a positive threat of
honor killing from Nazneen’s parents. Article 21 read with Articles 32 and 226 enable all
persons to seek protection from the court if they have a perception that there is a likely threat to
their life or personal liberty. It has also been held that the Court must address the apprehension of
petitioners in any case. In such a scenario, Hon’ble High Court of Punjab and Haryana was fully
justified in granting protection to the estranged couple.

2. Whether the Order granting the custody of the estranged wife to the petitioner immune
him from the subsequent offences, if any or not?
Immunity from offences in general is granted only in special circumstances. The present case
does not warrant a further examination of the question of the granting of any such immunity to
appellant. Instead, the real issue at hand here is whether the acts of the appellant in his pursuit of
a long term and committed relationship with Nazneen were seen as offences by the Court or not.
On an examination of the order of the Hon’ble High Court granting protection, the relevant laws
of Guardianship, and Section 190 of the Code of Criminal Procedure, 1973, it is established that
until the registration of FIR by Nazneen, the appellant was not seen as an offender in the eyes of
law.

3. Whether the FIR against Rahul is liable to be quashed or not?

We have already submitted that until the registration of FIR by Nazneen, the appellant was not
seen as an offender in the eyes of law. We now submit that the ingredients of all sections under
which he has been charged, namely Section 361 and Section 503 of the IPC, Section 3 and
Section 4 of the POCSO and Section 9 & Section 10 of the Child Marriage Prohibition Act are

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not made out or established to the extent that an investigation be warranted under trial, i.e. there
is no prima facie case against the appellant. In view of this, the FIR against him be quashed.

4. Whether the Hon’ble High Court under the shield of Article 21 of the Constitution of
India indirectly promoted Child Marriage ignoring the Special Statute?
We submit that the use of the word “marriage” by the High Court in it’s order granting
protection to the couple clearly denotes an implied approval to the marriage by the Court.
Further, the judgements of the Hon’ble High Court of Punjab and Haryana, the Principles of
Mohammedan Law by Sir Dinshah Fardunji Mulla, and the absence of an authoritative
judgement by this August Court on the present issue all point towards the validity of the
marriage between the appellant and Nazneen. Further, keeping in mind the provisions of the
Article 16 of the UDHR, 1948, and the settled presumption of law in favour of marriage of
cohabiting partners, it is firmly established that marriage of the appellant with Nazneen be seen
as valid marriage as per law.

5. Whether personal laws prevail over special law?

According to the Law Commission’s Consultation Paper on “The Reform of Family Law”
released in 2018, it has been disputed in a range of cases as to whether or not personal laws are
laws under Article 13 of the Constitution of India or if indeed they are protected under Articles
25-28. By virtue of being enacted as laws, personal law cannot be codified in a way that
contradicts the Constitution. In the Post independence era, there have been a number of
interventions by legislature, judiciary as well as civil society organisations seeking amendments
to personal laws or instituting a uniform civil code. Further, India is a signatory to the Universal
Declaration of Human Rights, 1948 and is bound to give effect to it. Even the provisions
contained therein are in consonance and conformity with our constitutional scheme and
particularly part III of the Constitution. Coming to the role of Judiciary, we submit that this is a
very broad issue which covers within it’s contours various questions of law and fact. There have
been contrasting opinions of various High Courts on this issue, in the absence of an authoritative
judgement by this August Court. As such, this question can be examined in a comprehensive
manner by a Constitution bench of the Supreme Court.

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ARGUMENTS ADVANCED

1. Whether the Hon’ble High Court of Punjab & Haryana was justified in granting
protection to the estranged couple under Article 21 of the Constitution of India or not?

(1.A) FUNDAMENTAL RIGHTS ARE GUARANTEED BY THE CONSTITUTION OF

INDIA

Article 21 of The Constitution of India declares that “no person shall be deprived of his life or
personal liberty except according to the procedure established by law”.
The right to life is undoubtedly the most fundamental of all rights. All other rights add quality to
the life in question and depend on the pre-existence of life itself for their operation. As human
rights can only attach to living beings, one might expect the right to life itself to be in some sense
primary since none of the other rights would have any value or utility without it. There would
have been no Fundamental Rights worth mentioning if Article 21 had been interpreted in its
original sense.
This right has been held to be the Heart of the Constitution. In Francis Coralie Mullin v.The
Administrator2, this esteemed Court has held that “Article 21 embodies a constitutional value of
supreme importance in a democratic society”. Article 21 has also been held as the procedural
Magna Carta protective of life and liberty by this Court.
‘Life’ in Article 21 of the Constitution is not merely the physical act of breathing. It does not
connote mere animal existence or continued drudgery through life. It has a much wider meaning,
including the Right to live with human dignity, Right to livelihood, Right to health, Right to
pollution-free air, etc. It is the only Article in the Constitution that has received the broadest
possible interpretation.
Further, in Maneka Gandhi v Union of India 3 this court held that the ‘right to life’ as enshrined
in Article 21 is not merely confined to animal existence or survival. It also includes the right to
live with human dignity and all those aspects of life which go to make a man’s life meaningful,
complete and worth living.
Right to life covers within its ambit the right to social security and protection.

2
1981 AIR 746
3
AIR 1978 SC 597

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In Shafin Jahan vs. K.M. Ashokan & Ors4, this august Court has held that the Right to Marry a
person of one’s own choice is included under the ambit of Article 21 of the Constitution of India.
Further, in the case of K. S. Puttuswamy and Anr. vs Union Of India And Ors.5 it has been held
that the Right to Privacy is a Fundamental Right within the ambit of Article 21.

(1.B) THERE WAS A POSITIVE THREAT TO THE LIFE OF THE COUPLE

We would now like to bring to the attention of the Court the situation in the present case. The
appellant is an educated, law abiding citizen who sought to spend his life with Nazneen. Having
already submitted that the appellant and Nazneen both had a Fundamental Right to choose their
partners under this Court’s interpretation of Article 21, we would now state that the couple was
under an apprehension of honour killing on the part of the Nazneen’s parents, who were
indulging in acts of threats interfering with and violating their personal space.
Article 32 and 2266 guarantee the freedom of all persons to seek protection from the court if they
have a perception that there is a likely threat to their life or personal liberty.
The couple had subsequently approached the Hon’ble High Court of Punjab and Haryana, who
after hearing their appeals granted them police protection for the preservation of their life and
personal liberty under Article 21. In the words of the Hon’ble High Court, “Merely because the
petitioners have got married against the wishes of their family members, they cannot possibly be
deprived of the fundamental rights as envisaged in the Constitution.”
Further, in Nargis v State of Punjab7 it has been recently held by the Hon’ble High Court of
Punjab and Haryana that “The Court cannot shut its eyes to the fact that the apprehension of the
petitioners needs to be addressed”.
Hence, we finally submit that the Hon’ble High Court of Punjab and Haryana was fully justified
in granting protection to the estranged couple under Article 21 of the Constitution.

4
AIR 2018 SC 357
5
AIR 2017 SC 4161
6
The Constitution of India
7
CRWP-12067-2021

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2. Whether the Order granting the custody of the estranged wife to the petitioner immune
him from the subsequent offences, if any or not?

(2.A) IMMUNITY FROM OFFENCES IN GENERAL

To begin with, we respectfully submit that the question of whether the appellant was made
“immune” from subsequent offences in any way should be seen as a distraction from the main
issue at hand. This August Court in this petition is to decide as to whether the FIR against the
appellant be quashed or not.
To support this argument, we would first like to point out the following provisions.
Section 307 of the Code of Criminal Procedure8 is regarding Power to direct tender of pardon
and it states that “At any time after commitment of a case but before judgment is passed, the
Court to which the commitment is made may, with a view to obtaining at the trial the evidence of
any person supposed to have been directly or indirectly concerned in, or privy to, any such
offence, tender a pardon on the same condition to such person.”
The above provision has been used by Courts to secure the evidence of a person in trials,
whereby he is granted immunity when he supports the enforcement of law and order by helping
to prove an offence beyond reasonable doubt.
From time to time, the Government has launched such schemes as Kar Vivad Samadhan Scheme,
1998, whereby whoever took benefit under the said Scheme was granted immunity from
prosecution from any offence under the Customs Act including the offence of evasion of duty.
Under Article 361(2) of the Constitution of India, “No criminal proceedings whatsoever shall be
instituted or continued against the President, or the Governor of a State, in any court during his
term of office”.
Further, under Article 31(1) of the Vienna Convention on Diplomatic Relations 9, “A diplomatic
agent shall enjoy immunity from the criminal jurisdiction of the receiving State.”
Thus, this immunity is granted only in special circumstances. The present case does not warrant
a further examination of the question of the granting of any such immunity to appellant.

(2.B) WHETHER THE APPELLANT’S ACTS IN PURSUIT OF HIS RELATIONSHIP

WERE OFFENCES OR NOT

8
Code of Criminal Procedure ,1973 (Act 2 of 1974)
9
Vienna Convention on Diplomatic Relations,1961,art.31(1)

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We respectfully submit that the real issue at hand here is whether the acts of the appellant in his
pursuit of a long term and committed relationship with Nazneen were seen as offences by the
Court or not.
We have already submitted that decision of the appellant and Nazneen to get married was an
exercise of their Fundamental Right guaranteed by this Court under Article 21.
Subsequent to this, the Hon’ble High Court approved this exercise of their fundamental right, by
recognizing their apprehension of honour killing and granting protection to them. The High
Court did not call out the invalidity of the relationship between the appellant and Nazneen, and
also brought to light the connection between this case and that of Yunus Khan v. State of
Haryana10, opinng that the matter is no longer res-integra and it is a well settled law that the
marriage of a Muslim girl is governed by the Muslim Personal Law. Clearly, the Court gave a
tacit approval to their relationship, and so any action connected with this relationship should not
be seen as an offence.
The Hon’ble High Court in it’s order granting protection to the estranged couple clearly
established that the appellant was prima facie not seen as an offender in the eyes of law.
Furthermore, the Court granted the custody of Nazneen to the appellant, pursuant to which the
couple started living together.
At this stage we would like to state relevant provisions of the Guardians and Wards Act 11 and
also of the Hindu Minority and Guardianship Act12. Section 13(1) of the Hindu Minority and
Guardianship Act states that, “In the appointment of declaration of any person as guardian of a
Hindu minor by a court, the welfare of the minor shall be the paramount consideration.” Section
7(1) of the Guardians and Wards Act is as follows, “Power of the Court to make orders as to
guardianship.- (1) Where the Court is satisfied that it is for the welfare of a minor that an order
should be made- Appointing a guardian of his person or property or both, or declaring a person
to be such a guardian the Court may make an order accordingly.
Keeping in mind the fact that the welfare of the minor is always kept as a paramount
consideration while granting the custody to any person, it is absolutely established that the Court
saw the giving of custody of Nazneen to the appellant as the best measure under the
circumstances.

10
(2014) SCC 3588
11
The Guardians and Wards Act,1890(Act 8 of 1890)
12
The Hindu Minority and Guardianship Act,1956(Act 32 of 1956)

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We would now like to bring the attention of this August Court towards Section 190 of the Code
of Criminal Procedure which is regarding Cognizance of offences by Magistrates and states that
“(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any
Magistrate of the second class specially empowered in this behalf under sub-section (2), may
take cognizance of any offence—
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own
knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take
cognizance under sub-section (1) of such offences as are within his competence to inquire into or
try.”
There is no information whatsoever to suggest that cognizance of any offences has been taken
against the appellant by any Magistrate.
All of these points clearly bring home the fact that until the registration of FIR by Nazneen, the
appellant was not seen as an offender in the eyes of law.

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3. Whether the FIR against Rahul is liable to be quashed or not?

We have already submitted that until the registration of FIR by Nazneen, the appellant was not
seen as an offender in the eyes of law.

(3.A) OFFENCE UNDER IPC SECTION 361 NOT MADE OUT

According to Section 361 of the Indian Penal Code13 “whoever takes or entices any minor
under sixteen years of age if a male, or under eighteen years of age if a female, or any person of
unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound
mind, without the consent of such guardian, is said to kidnap such minor or person from lawful
guardianship.”
We would like to bring the attention of this Court towards the facts of the present case and the
chain of events. Nazneen being a laborious child since childhood, concentrated only on studies
and therefore was not easily distracted by the activities around her. Her school organized a
seminar and various eminent speakers were invited for the same. The appellant, who is an
extraordinary speaker with exemplary achievements in the field of medical sciences and has
excellent command on the subject, was also invited as a Guest Speaker. Awestruck by the
appellant’s amazing presentation and professional communication skills, Nazneen started
admiring him as a role model. Captivated by his charm and personality, she approached the
appellant for career guidance and also complimented him for his extremely attractive personality
and communication skills. Surprised by her confidence at such an age, the appellant motivated
her for her future endeavours. Soon Nazneen started visiting the appellant frequently for one or
the other reason, and subsequently confessed her feelings to appellant. These chain of events
clearly show that there were no acts of enticement on the part of the appellant and it was
Nazneen who initially approached him and had amorous feelings for him from the very
beginning. Also, it is inconceivable that the Nazneen could have been enticed by appellant who
being an educated citizen had a moral duty towards her.

We would now like to bring to the attention of this Court to the concept of “age of discretion”
which is a well-established concept in Indian judiciary. Courts usually consider a person aged 16
years or older to have attained the age of discretion, which means they are capable of

13
The Indian Penal Code,1860,(Act 45 of 1860)

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understanding the consequences of their actions and taking a well-thought-out decision. With
reference to the judgement of this August Court in Shyam and Anr. v. State of Maharashtra14,
and in the words of the learned judge: “She was a fully grown-up girl may be one who had yet
not touched 18 years of age, but still she was in the age of discretion, sensible and aware of the
intention of the accused Shyam, that he was taking her away for a purpose. It was not unknown
to her with whom she was going in view of his earlier proposal. It was expected of her then to
jump down from the bicycle, or put up a struggle and, in any case, raise an alarm to protect
herself. No such steps were taken by her. It seems she was a willing party to go with Shyam- the
appellant on her own and in that sense there was no 'taking out of the guardianship of her
mother.”

We submit that taking into account the aforementioned concept, as also the fact that Nazneen
voluntarily eloped with the appellant, it is clearly established that there was no enticement
whatsoever on the part of the appellant. As such, the offence under Section 361 is clearly not
made out.

Further, in the case of S.Varadarajan v. State of Madras15 in the words of this August Court, “We
would limit ourselves to a case like the present where the minor alleged to have been taken by
the accused person left her father's protection knowing and having capacity to know the full
import of what she was doing voluntarily joins the accused person. In such a case we do not
think that the accused can be said to have taken her away from the keeping of her lawful
guardian. Something more has to be shown in a case of this kind and that is some kind of
inducement held out by the accused person or an active participation by him in the formation of
the intention of the minor to leave the house of the guardian.”

(3.B) NO ACTS OF THREAT ON THE PART OF THE APPELLANT

According to Section 503 of the IPC, “whoever threatens another with any injury to his person,
reputation or property, or to the person or reputation of any one in whom that person is
interested, with intent to cause alarm to that person, or to cause that person to do any act which
he is not legally bound to do, or to omit to do any act which that person is legally entitled to do,
as the means of avoiding the execution of such threat, commits criminal intimidation”.

14
AIR 1995 SC 2169
15
1965 AIR 942

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The situation clearly contains no manifestation of the ingredients of this offence, as the appellant
was never involved in any activity which could be even remotely stated to be an act of threat.
The appellant was committed to a long-term relationship with Nazneen, and as such there was no
intention on his part to cause alarm to anyone involved in the case.

There is absolutely no evidence to suggest that Nazneen’s parents were alarmed at any stage of
the case. On the contrary, it was they who threatened the appellant, which should be regarded by
this Court as an offence under the same section with which the appellant has been charged. The
facts are silent as to whether there were any positive efforts on the part of the Nazneen’s parents
to file any appeals before the court to get back her custody, suggesting that once their daughter
went against their wishes they had decided for once not to care about her.

In the case of Amnider Kaur and Anr. v. State of Punjab and Ors. 16 it was held that by the
Hon’ble High Court of Punjab and Haryana that “If the parents of the boy or the girl do not
approve of inter-caste or inter-religious marriage, the maximum they can do is that they can cut-
off social relations with the son or daughter, but they can’t give threats or commit or instigate
acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious
marriage. Therefore, direction was given to Administration/police authorities throughout the
country to see that if any boy or girl who is a major undergoes inter-caste or inter-religious
marriage, with a woman or man who is major, the couple be not harassed by anyone nor is
subjected to threats or acts of violence, and if anyone gives such threats or harasses or commits
acts of violence either himself or at his instigation, is taken to task by instituting criminal
proceedings.”

To take this point further, the Hon’ble High Court has granted protection under Article 21 to the
couple on their apprehension of killing. This firmly establishes that it was the couple, and not the
parents, who were feeling intimidated.

All of this, we respectfully submit, to bring home the fact that the application of this section is
grossly unjust and no offence is made out.

(3.B) OFFENCE NOT ESTABLISHED UNDER POCSO ACT, 2012

16
CRM-M 29790-2009

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The Protection of Children from Sexual Offences Act17 (POCSO) defines a child as any person
below the age of 18 years. This implies that the age of consent for sexual intercourse is also 18
years. As per Section 3 of the POCSO Act “A person is said to commit penetrative sexual assault
if

(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or
makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina,
the urethra or anus of the child or makes the child to do so with him or any other person; or

(c) he manipulates any part of the body of the child so as to cause penetration into the vagina,
urethra, anus or any part of body of the child or makes the child to do so with him or any other
person; or

(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do
so to such person or any other person.”
We would like to bring the notice of the court that following the registration of the FIR, a
medical examination of Nazneen was conducted and as the report the possibility of attempted
sexual intercourse could not be ruled out. There is, however, no evidence whatsoever to establish
that the act of sexual intercourse actually took place. Given the advances in medical technology,
it is inconceivable that the test could not positively establish that the intercourse took place had it
actually happened. In view of this, there is not even a prima facie case made out against the
appellant under Section 3(a) read with Section 4(1) of the POCSO Act.

Section 27 of the POCSO Act states that:

“(1) The medical examination of a child in respect of whom any offence has been committed
under this Act, shall, notwithstanding that a First Information Report or complaint has not been
registered for the offences under this Act, be conducted in accordance with section 164A of the
Code of Criminal Procedure.
(2) In case the victim is a girl child, the medical examination shall be conducted by a woman
doctor.
(3) The medical examination shall be conducted in the presence of the parent of the child or any
other person in whom the child reposes trust or confidence.
17
The Protection of Children from Sexual Offences Act,2012 (Act 32 of 2012)

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(4) Where, in case the parent of the child or other person referred to in sub-section (3) cannot be
present, for any reason, during the medical examination of the child, the medical examination
shall be conducted in the presence of a woman nominated by the head of the medical institution.”

Your lordship should kindly note that the facts are silent on whether the procedure
aforementioned has been followed in the present case or not. We have only been provided that
medical examination of Nazneen was conducted at Government Medical College, and according
to the expert opinion of the doctor, possibility of attempted sexual intercourse could not be ruled
out. We do not accept this as a positive confirmation of the statutory procedure having been
followed to the latter.

There is a basic principle of criminal law that an offence charged needs to be “proved beyond
reasonable doubt”. In light of the aforementioned facts and arguments we would submit there is
no offence made out against the appellant under this section.

(3.D) NO CASE UNDER CHILD MARRIAGE PROHIBITION ACT, 2006

Regarding the validity of the marriage in this case, we would first like to submit that appellant
was serious about entering into a long-term relationship with Nazneen.
Nazneen voluntarily eloped with appellant. Both of them directly went to the temple and
solemnized marriage according to Hindu ceremonies. The photographs taken during their
marriage ceremony in the temple have been brought before the hon’ble High Court.
However, the Hon’ble Court has declined to comment on the validity of the marriage. It granted
the custody of Nazneen to the appellant, which is suggestive of the fact that the Court saw the
best interests of Nazneen with the appellant.
In view of the fact that while the intention of the appellant was to enter into marriage with
Nazneen, the Court has not yet upheld the validity of their marriage, so the offence under Section
9 & Section 10 of the Child Marriage Prohibition Act is not made out.

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MEMORIAL ON THE BEHALF OF THE APPELLANT

4. Whether the Hon’ble High Court under the shield of Article 21 of the Constitution of
India indirectly promoted Child Marriage ignoring the Special Statute?

(4.A) POSITION OF THE HON’BLE HIGH COURT IN THIS CASE

We would first like to state the fact the Hon’ble HC in its order granting protection to the
estranged couple refrained from commenting on the validity of the marriage. However, in the
present case, in the words of HC, “Merely because the petitioners have got married against the
wishes of their family members, they cannot possibly be deprived of the fundamental rights as
envisaged in the Constitution.” The use of the word “marriage” clearly denotes an implied
approval to the marriage by the Court.

(4.B) THE POSITION UNDER MUSLIM LAW AND THE OBSERVATIONS OF THE
HIGH COURTS AND THE SUPREME COURT
Further, in the recent case of Nargis v. State of Punjab18 in the words of the Hon’ble High Court
of Punjab and Haryana: “Article 195 from the book, ‘Principles of Mohammedan Law by Sir
Dinshah Fardunji Mulla’ has also been reproduced in the said decision. The said Article reads as
under:
“Capacity for marriage - (1) Every Mahomedan of sound mind, who has attained puberty, may
enter into a contract of marriage.
(2) Lunatics and minors who have not attained puberty may be validly contracted in marriage by
their respective guardians.
(3) A marriage of a Mahomedan who is sound mind and has attained puberty, is void, if it is
brought about without his consent.
Explanation - Puberty is presumed, in the absence of evidence, on completion of the age of
fifteen years.”
A Coordinate Bench in Kammu's case (supra), has held in para No.20 that as per the text Book of
Mohammedan Law by Aqil Ahmad, “Puberty and majority” in the Muslim law, are one and the
same. The presumption is that a person attains majority at the age of 15 years. It should be noted
that marriage of a minor without the consent of the guardian is invalid unless it is ratified after
the attainment of majority. A boy or girl who has attained puberty is at liberty to marry any one

18
CRWP-12067-2021

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he or she likes and the guardian has no right to interfere if the match be equal. In view of the
decisions cited above, the law is clear that the marriage of a Muslim girl is governed by the
Muslim Personal Law. As per Article 195 from the book ‘Principles of Mohammedan Law by
Sir Dinshah Fardunji Mulla’, petitioner No.1 being 17 years of age, is competent to enter into a
contract of marriage with a person of her choice. Petitioner No.2 is stated to be about 33 years of
age. Thus, petitioner No.1 is of marriageable age as envisaged by Muslim Personal Law.”
This August Court has not yet made an authoritative judgement on the issue of a clash between
the Muslim Personal law and the Prevention of Child Marriage Act, 2006.

(4.C) ARTICLE 16 OF THE UDHR, 1948

Further, the Article 16 of the Universal Declaration of Human Rights, 1948, to which India is a
signatory states that,
“(1) Men and women of full age, without any limitation due to race, nationality or religion, have
the right to marry and to found a family. They are entitled to equal rights as to marriage, during
marriage and at its dissolution.
(2) Marriage shall be entered into only with the free and full consent of the intending spouses.
(3) The family is the natural and fundamental group unit of society and is entitled to protection
by society and the State.”

(4.D) PRESUMPTION OF MARRIAGE FOR COUPLES COHABITING

Finally, we would like to point out that the law is well settled on the question of presumption of
marriage for couples cohabiting. In Bharatha Matha & Anr. v. R. Vijaya Renganathan & Ors.19
this was affirmed relying upon a large number of precedents. Pursuant to the order granting
custody of Nazneen to the appellant, they started living together as husband and wife, and so in
the absence of any court order to the contrary their marriage should be seen as a valid one.

The aforementioned points and arguments firmly brings home the point that the marriage of the
appellant with Nazneen should be seen as a valid marriage as per Muslim Personal law, and as
such, it is clearly established that the Hon’ble High Court under the shield of Article 21 of the
Constitution of India did not indirectly promoted Child Marriage ignoring the Special Statute.

19
AIR 2010 SC 2685

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MEMORIAL ON THE BEHALF OF THE APPELLANT

5. Whether personal laws prevail over special law?

(5.A) CONSULTATION PAPER BY THE LAW COMMISSION

In June 2016 through a reference by the Government of India, the Law Commission was
entrusted with the task of addressing the issues concerning a uniform civil code.

Subsequently, in the Law Commission’s Consultation Paper on “The Reform of Family Law”
released in 2018, it was said that “Whether or not personal laws are laws under Article 13 of the
Constitution of India or if indeed they are protected under Articles 25-28, has been disputed in a
range of cases the most notable being State of Bombay v. Narasu Appa Mali 20”

It was also stated in the same consultation paper that “By virtue of being enacted as laws,
personal law cannot be codified in a way that contradicts the Constitution. For instance,
codification of discriminatory custom regardless of how commonly acceptable they may be, can
lead to crystallisation of prejudices or stereotypes. Therefore, codification of any law requires a
rigorous debate and the Commission has taken only the first step in this direction.”

The category of personal law may well have evolved in colonial India, but post-independence
this category was strengthened, reconstituted and reinforced. One of the foremost social
legislations that were introduced in independent India was, in fact, the amendments to Hindu
law.

(5.B) THE QUESTION OF A UNIFORM CIVIL CODE

The Constituent Assembly agreed on putting the clause of a uniform civil code as a directive
principle rather than a fundamental right. In the subsequent years there were a number of
interventions by legislature, judiciary as well as civil society organisations seeking amendments
to personal laws or instituting a uniform civil code. The most notable of these judgments were
the Mohd. Ahmed Khan v. Shah Bano Begum21, Jordan Diengdeh v. S.S. Chopra22 and the Sarla
Mudgal v. Union of India23

(5.C) THE UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948

20
AIR 1952 Bom 84
21
AIR 1985 SC 945
22
AIR 1985 SC 935
23
AIR 1995 SC 1531

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MEMORIAL ON THE BEHALF OF THE APPELLANT

We would like to remind this August Court about the fact that India is a signatory to the
Universal Declaration of Human Rights, 1948 and is bound to give effect to it. Even the
provisions contained therein are in consonance and conformity with our constitutional scheme
and particularly part III of the Constitution. Article 253 of the Constitution read with entries 10
and 14 of List 1 of the Seventh Schedule empowers the Parliament to enact a law to give effect
to the said Declaration, 1948. Even otherwise, there is an assumption that the Parliament does
not breach the principles of international law, including any specific treaty obligations. It may
be relevant in view of the provisions contained in Article 51 (c) of the Constitution which
provides that ―the State shall endeavour to foster respect for international law and treaty
obligations in the dealings of organized people with one another.

(5.D) THE ROLE OF JUDICIARY IN ADDRESING THE ISSUE

There have been contrasting opinions of various High Courts delivered on various issues within
the overall ambit of this question, in the absence of an authoritative judgement of this August
Court. We respectfully submit that this is a very broad issue which covers within it’s contours
various questions of law and fact. As such, to answer this question with a blanket statement is
neither feasible nor desirable. This question can be examined in a comprehensive manner by a
Constitution bench of the Supreme Court under Article 145(3) of the Constitution of India.

To sum up, we submit that this is a very broad question which needs a thorough examination
both on the part of the Judiciary and of the Executive.

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MEMORIAL ON THE BEHALF OF THE APPELLANT

PRAYER
In the light of the facts of the case, arguments advanced and the authorities cited, it is most
humbly prayed that this Hon’ble Court may be pleased

1. To Order, the quashing of the FIR registered against the appellant

And/ or any other relief or order that this Hon’ble Court may be pleased to grant in the interest of
justice, equity and good conscience.

All of which is humbly prayed

Counsel(s) for the Appellant

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