IN THE HON’BLE HIGH COURT OF ORISSA P age |0

Appeal No. ****/2022

Under Article 226 of the Constitution of India

In the matter of

RAKESH …………………………… ……………...... APPEALANT

Vrs.

MONALI’S PARENTS ……………….....………………. RESPONDENT

To,
The Hon’ble High Court of Orissa

The Humble Memorandum of Respondent

for the above-named person

RUDRABHISHEK PRADHAN

5 Years Integrated
B.A.LL. B (6th Semester)
Regd. No.: 1941801062
MEMORIAL ON BEHALF OF SOA
THE RESPONDENT
NATIONAL INSTITUTE OF LAW (SNIL)
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TABLE OF CONTENTS
Index of Abbreviations ………………………………………2
Index of Authorities ………………………………………….3
Statutes ……………………………………………….3
Table of Cases ………………………………………….3
Books, Lexicons, Legal Databases ……………...……4
Statement of Jurisdiction ………………………………………5
Statement of Facts ………………………………………………6
Issues raised …………………………………………………….7
Summary of Arguments ………………………………………… 8
Arguments Advanced …………………………………………… 9
Prayer …………………………………………………………12

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INDEX OF ABBREIVATIONS

¶ Para
¶¶ Paras
AIR All India Reporter
Cal Calcutta
Del Delhi
Ors Others
SC Supreme Court
SCC Supreme Court Case
SCJ Supreme Court Journal
u/s Under Section

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INDEX OF AUTHORITIES
STATUTES
The Hindu Marriage Act, 1955
Indian Penal Code, 1860
The Constitution of India

TABLE OF CASES

1. Rameshwari Devi v. State of Bihar and Others.

2. H.D. Vyas v. State of Gujrat & Ors.
3. Gullipilli S. Raj v. Bandaru Pavani Alias Gullipili Pavani
4. Lily Thomas v. UOI
5. Vishnu Kumar v, State of U.P & Ors.
6. Ram Singh v. R Susila Bai and Another
7. Mantu Hazra v. Mina Hazra & ors
8. Mrs. Devitha Shetty v. NIL
9. Gomathi Alias Anandhi v. Padma
10. Smt. Chand Dhawn v. Jawaharlal Dhawan
11. Kiran J.K. v. SI of Police
12. Uma Maheswari v. The Sub Registrar
13. Bankey Bihari Singh v IOC Corp. Ltd.
14. Sarat Chandra Pattnik v. Binodini Pattnaik
15. Mamata Mayee Sahoo v. Abinash Sahoo

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COMMENTARIES, DIGESTS & BOOKS

BOOKS
1. Hindu Law (Family Law -I) by Dr. S.R. Myneni
2. Textbook on Indian Penal Code (5th Edition) By K.D. Gaur

LEXICONS
 Compact Oxford Reference Dictionary Ninth Edition
 Black’s Law Dictionary Ninth Edition, 2009
 Mitra’s Legal & Commercial Dictionary Sixth Edition

LEGAL DATA BASES

Manupatra

Westlaw
Indian Kanoon

Case Mine
Blog.ipleaders

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STATEMENT OF JURISDICTION
THE HON’BLE HIGHCOURT OF JUDICATURE AT ORISSA EXERCISE JURISDICTION TO
HEAR AND ADJUDICATE OVER THE MATTER UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, 1950.

* 226. Power of High Courts to issue certain writs

(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout
the territories in relation to which it exercises jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories directions, orders or
writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto
and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and
for any other purpose
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government,
authority or person may also be exercised by any High Court exercising jurisdiction in relation
to the territories within which the cause of action, wholly or in part, arises for the exercise of
such power, notwithstanding that the seat of such Government or authority or the residence of
such person is not within those territories
(3) Where any party against whom an interim order, whether by way of injunction or stay or in
any other manner, is made on, or in any proceedings relating to, a petition under clause (1),
without
(a) furnishing to such party copies of such petition and all documents in support of the plea for
such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court
for the vacation of such order and furnishes a copy of such application to the party in whose
favour such order has been made or the counsel of such party, the High Court shall dispose of
the application within a period of two weeks from the date on which it is received or from the
date on which the copy of such application is so furnished, whichever is later, or where the
High Court is closed on the last day of that period, before the expiry of the next day afterwards
on which the High Court is open; and if the application is not so disposed of, the interim order
shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand
vacated.

(4) The power conferred on a High Court by this article shall not be in derogation of the power
conferred on the Supreme court by clause (2) of Article 32.

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STATEMENT OF FACTS
1. Rakesh Yadav who is a young boy of 19 years age and a meritorious student of Naryan
Science College, Bhubaneswar. He passed with 2nd rank for Physics in the State of
Odisha in the +3 examination of 2019.
2. A girl of 16 years age Monali Thakur is a junior and a very good friend of Rakesh, with
time a kind of intimacy developed between Rakesh and Monali; And in every weekend
near Bhubaneswar, they used to meet at Botanical Garden Park which continued for
over 2 years and more.
3. Rakesh on his birthday i.e., 27th Feb. 2021 proposed Monali to marry him. Both of them
eloped from their homes and got married as per the Hindu Rites and Rituals in a nearby
temple on 17th March 2021.
4. After getting the news of Monali’s marriage her family members including Grandfather
and Paternal Uncle become furious and threatened Monali of her life and safety over
telephone on 18th March 2021.
5. FIR was lodged by her father on 19th March 2021 against Rakesh at the Nayapalli Police
Station, BBSR and u/s. 366 and 376 of IPC charge sheet was filed by the police.
6. A typed letter signed by Monali requesting not to file any criminal case against her
husband was received by the Nayapalli P.S. on 25th March 2021.
7. From the Hotel Garden Park of Patia, the police have taken both Rakesh and Monali
into custody on 28th March 2021 and produced both of them before the court.
8. Monali refused to undergo any test when she was taken for medical examination. U/s
164 of CrPC, 1973 she did not even state anything against her husband before the
Magistrate, but intimated in writing that she had left parent’s house to live a happy
married with Rakesh.
9. Court sent Monali to Nari Surakshya Kendra, Bhubaneswar for some time on 5 th April
2021.
10. Monali’s custody was handed over to her parents on 5 th April 2021 and Rakesh was
also released on 7th may 2021.

ISSUES RAISED

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1. WHETHER THE TEMPLE MARRIAGE IS VALID OR NOT UNDER HINDU

MARRIAGE ACT, 1955.
2. WHETHER SECTION 366 OF IPC IS APPLICABLE OR NOT.

SUMMARY OF ARGUMENTS

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1. WHETHER THE TEMPLE MARRIAGE IS VALID OR NOT UNDER HINDU

MARRIAGE ACT, 1955.
Whether the marriages take place anywhere (i.e., temple, town or city halls or
courthouses in judges’ chambers etc.) it must follow all the essentials mentioned under
section 5 and section 7 of The Hindu Marriage Act, 1955.

2. WHETHER SECTION 366 OF IPC IS APPLICABLE OR NO.

When a woman is kidnapped or abducted by any person with the intention of forcibly
marrying or for having sexual intercourse with her then it is a cognizable offence and
that person shall be punished with imprisonment of either description for a term which
may extend to 10 years and shall also be liable with fine. The question whether
kidnapped or not depends upon the age of the woman and on other circumstances.

ARGUMENT ADVANCED

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ISSUE 1: WHTHER THE TEMPLE MARRIAGE IS VALID OR NOT.

It is most humbly submitted before the Hon’ble high court that the marriage between
petitioner and respondent is invalid marriage on the grounds of section 5 and 7 of The
Hindu Marriage Act, 1955.

In the instance the marriage between Rakesh and Monali was solemnized in a nearby
temple with all rites and rituals, but there was no such evidence for the proof of
marriage.

Section 5 of the Hindu Marriage Act, says:

Condition for a Hindu marriage- A marriage may be solemnized between any two
Hindus, if the following conditions are fulfilled, namely:

1. neither party has a spouse living at the time of the marriage;

2. at the time of the marriage, neither party —
a. is incapable of giving a valid consent to it in consequence of unsoundness of
mind; or
b. though capable of giving a valid consent, has been suffering from mental
disorder of such a kind or to such an extent as to be unfit for marriage and the
procreation of children; or
c. has been subject to recurrent attacks of insanity
3. the bridegroom has completed the age of twenty-one years and the bride, the
age of eighteen years at the time of the marriage;
4. the parties are not within the degrees of prohibited relationship unless the
custom or usage governing each of them permits of a marriage between the two;
5. the parties are not sapindas of each other, unless the custom or usage governing
each of them permits of a marriage between the two.

Section 7 of the Hindu Marriage Act, says:

Ceremonies for Hindu marriage:

1. A Hindu marriage may be solemnized in accordance with the customary rites
and ceremonies of either party thereto.
2. Where such rites and ceremonies, include the Saptapadi (that is, the taking of
seven steps by the bridegroom and the bride jointly before the sacred fire), the
marriage becomes complete and binding when the seventh step is taken.

There are two ceremonies essential for the validity of Hindu Marriage, namely: -

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vivah homa (invocation before the sacred fire) and

saptapadi (i.e., taking of seven steps)

*A marriage in absence of performance of religious ceremonies will not be

recognized in Law.
There is no such proof about Saptapadi before sacred fire for the validity of Rakesh
and Monali’s temple marriage.
All though rites and rituals are followed while marrying but there must be a receipt
issued by the main priest of the temple or else there must be any other evidence to
validate the marriage or it must be mentioned in the register of the temple.

Thus, the decision for handing over of the custody of Monali to her parents is valid
and correct.

In Indrani v. Vellathal1
The Madras High Court held that exchange of garlands, or putting a ring or tying a
thali etc. are traditionally recognized stages of marriage ceremony among a majority
of people who live in village, hamlets etc. bringing into existence a binding
marriage and are covered by sec. 7(1) of the Hindu Marriage Act, 1955. Sec. 7(2)
applies only where Saptapadi is included among the rites and ceremonies as in the
Brahminical form of marriage.

In Uma Maheswari v. The SUB Registrar2

The Madras High Court held that in order to validate the temple marriage of a boy
and girl there must be a receipt issued by the priest or it must be mentioned in the
register book of the temple. Also, there must be any photograph or witness need to
be present there.

ISSUE 2: WHETHER SECTION 366 OF IPC IS APPLICABEL OR NOT.

1
(1988) 1 MLJ 168.
2
W.P. No. 3044 of 2018.

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From the instances of the facts, it is most humbly submitted before the Hon’ble high
court that the petitioner Rakesh has abducted Monali to marry with him which is a
cognizable offence under section 366 of IPC.

Section 366 of IPC states that:

“Kidnapping, abducting or inducing woman to compel her marriage, etc.-

Whoever kidnaps or abducts any woman with intent that she may be compelled, or
knowing it to be likely that she will be compelled, to marry any person against her will,
or in order that she may be forced or seduced to illicit intercourse, or knowing it to be
likely that will be forced or seduced to illicit intercourse, shall be punished with
imprisonment of either description for a term which may extend to ten years, and shall
also be liable to fine.”

Ingredients of section 366:

1. Kidnapping or abduction of any woman;
2. Such kidnapping or abducting must be:
a. with intent that woman may be compelled, or knowing it to be likely that she
will be compelled, to marry any person against her will;
b. in order that she may be forced or seduced to illicit intercourse, or knowing it
to be likely that will be forced or seduced to illicit intercourse; or
c. by criminal intimidation, or abuse of authority, or by compulsion inducing any
woman to go from any place, with the intent that she may be or with knowledge
that it is likely that she will be forced or seduced to illicit intercourse with some
person.

As far as the factual statements are concerned it is not mentioned that Monali
has given her consent to elope from home and to marry Rakesh. Or Monali may be
eloped from her parent’s house because of influence of the Rakesh as she was in relation
with him form the age of 16 years (Monali’s Age).

In State v. Mr. Parvesh 3

The Court held that Section. 366 of IPC requires kidnapping or abduction of a woman
with the requisite intent. The intent must be to compel her to marry any person against
her will or to force or seduce her to illicit intercourse. (Referred the case of Faiyaz
Ahmad v. State of Bihar4)

PRAYER

3
3rd Dec. 2012 Sc No.: 22 of 2012.
4
1990 Cr.L.J. 2241 (SC)

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Wherefore the light of fact stated, issued raised, authority cited, and argument advanced, it is
most humbly prayed before this Hon’ble High Court that it may be pleased to adjudge and
declare, that, all the argument summarized and advanced in the above said case are true to fact,
and

1. To dismiss the appeal, and

2. To handover the custody of Monali to her parents
3. To declare the marriage as void
4. Punish Rakesh for his activities.

AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.

And for this, the Respondents as in duty bound, shall humbly pray.

Place: s/d -

Date: _/_, 2022Moot Counsels for Respondent

COUNSEL FOR THE RESPONDENT

MEMORIAL ON BEHALF OF THE RESPONDENT