TEAM CODE - INTRA DEPARTMENT MOOT COURT CO! TITION 2022 Before THE SUPRI EME COURT OF INDIA RAHUL... ~APPELLANT vs STATE OF PUNJAB AND Ors. (MEMORIAL ON THE BI» 2) 3) 4) 5) 6) 7 8) INTRA DEPARTMENT MOOT COURT COMPETITION 2022 (MEMORIAL ON THE BEHALF OF RESPONDENT) TABLE OF CONTENTS LIST OF ABBREVIATIONS. INDEX OF AUTHORITIE: STATEMENT OF FACTS STATEMENT OF JURISDICTIO? STATEMENT OF ISSUES wsnosnnenmnninninnnninmmnnmnmnninmnnnnnnnd SUMMARY OF ARGUMENTS.. 0 ARGUMENTS ADVANCED a) ISSUE NO 1 WHETHER THE HON’BLE COURT OF PUNJAB AND HARYANA WAS JUS IFIED IN GRANTING PROTECTION TO INDER ARTICLE 21 OF THE CONSTITUTION OF 2 by ISsU ETHER THE ORDER GRANTING THE CUSTODY OF THE ESTRANGED WIFE TO THE PETITIONER IMMUNE HIM FROM SUBSEQUENT OFFENCES, IF ANY OR NoT?. °) QUASHED or Nor d) ISSUE NO 4 WHETHER THE HON’BLE HIGH COURT UNDER THE SHIELD OF ART. 21 OF THE INDIAN CONSTITUTION INDIRECTLY PROMOTED CHILD MARRIAGE IGNORING THE — SPECIAL, STATUES?. 19 ©) ISSUE NO 5 WHETHER PERSONAL LAW PREVAILS OVER SPECIAL PRAYE! 4INTRA DEPARTMENT MOOT COURT COMPETITION 2022 (MEMORIAL ON THE BEHALF OF RESPONDENT) LIST OF ABBREVIATIONS AIR All India Reporter Art Article CPC | Criminal Procedure Code Ed, | Edition FIR First Information Report HC High Court Hon'ble Honourable TPC Indian penal Code PCMA Prohibition of Child Marriage Act POCSO, Protection of Children from Sexual Offences SC Supreme Court scc ‘Supreme Court CasesINTRA DEPARTMENT MOOT COURT COMPETITION 2022 (MEMORIAL ON THE BEHALF OF RESPONDENT) INDEX OF AUTHORT A. CASES 1 2, STATUTES REFERRI ABDUL KHADER VS. K. PECHIAMMAL, 2015(2) MLI(Cr1)210 AMNIDER KAUR AND ANOTHER VS STATE OF PUNIAB AND OTHERS, 2010 (1) RCR (Criminal) 261 ASHOK KUMAR VS. STATE OF TAMIL NADU, Cil. O.P. No. 34 of 2021 GIAN SINGH VS. STATE OF PUNJAB SLP (CRL) No. 8989 OF 2010 INDEPENDENT THOUGHTS VS UNION OF INDIA AND ANOTHER, AIR 2017 SC 4904 JASPREBT KAUR AND. V. STATE OF PUNJAB 2021(3) RCR(Criminal)566 KARMVIR VS. STATE OF HARYANA Crl. MISC. NO. M-13312 of 2013 MISS. SEEMA BEGAUM D/O KHASIMSAB VS STATE OF KARNATAKA: WP NO. 75889 OF 2013, MOHAMMED NIHAL VS. STATE, 2008 (4) RCR(Criminal) 477 NEELAM RANI AND ANR VS STATE OF PUNJAB AND ORS, CRWP. ‘No.10067 of 2020 RAMAN @ RAMAR VS THE STATE: CRL. A.NO. 309 OF 2019 SATISH KUMAR JAYANTI LAL DABGAR V. STATE OF GUJARAT 2015 (2) RCR(Criminal) 230 SUKHWINDER SINGH AND ANOTHER VS. STATE OF PUNJAB AND OTHERS CRWP-6912-2020 YUNUSBHAI USMANBHAI SHAIKH V. STATE OF GUJARAT: 2016(1) RCR(Criminal)690 D CODE OF CRIMINAL PROCEDURE, 1973 CONSTITUTION OF INDIA, 1950 INDIAN PENAL CODE, 1860 MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT,1937 PROHIBTION OF CHILD MARRIAGE ACT, 2006INTRA DEPARTMENT MOOT COURT COMPETITION 2022 (MEMORIAL ON THE BEHALF OF RESPONDENT) 6 PROTECTION OF CHILDREN FROM SEXUAL OFFENCES, (AMENDMENT) BILL, 2019/ POSCO. B, BOOKS REFERRED 1. INDIAN PENAL CODE BY RATANLALDHIRAJLAL 35™ ED, LEXIS NEXIS 2..M. HIDAYATULLA AND ARSHADHIDAYATULLA, MULLA’S PRINCIPLES OF MAHOMEDAN LAW 3. NARENDER KUMAR: CONSTITUTIONAL LAW OF INDIA ~ EDITION (2019-20), ALLAHABAD LAW AGENCY AL DATABAS 1. www.indianeaselaws.org www. indiankanoon.org www.manupatra.com 4. -www.sceonline.co.in14 INTRA DEPARTMENT MOOT COURT COMPETITION 2022 (MEMORIAL ON THE BEHALF OF RESPONDENT) STATEMENT OF FACTS ‘That Nazeen aged about 16 years and Rahul(accused), a Hindu Boy aged about 28 ‘years was also invited as a guest speaker to her school. That Nazneen approached accused for career guidance and complimented him for his communication skills. ‘That accused expressed his gratitude towards the compliment and motivated Nazneen for her future endeavours. That Nazncen and accused started meeting each other frequently and one day she confessed her feelings to accused and the accused accepted her proposal ‘That Nazneen Parents were not happy about their relationship and one day Nazneen voluntarily eloped with the accused That Accused and Nazncen directly went to the temple and solemnized marriage according to Hindu Ceremonies. ‘That the couple sought legal advice due to apprehension of Honour killing and their counsel, Mr Batra filed a writ petition under Article 226 read with Article 21 of the Indian Constitution in Hon’ble High Court of Punjab and Haryana. ‘That, The Court relied upon the decision of “Yunus Khan v. State of Haryana” and opined that Marriage of a Muslim gitl is governed by Muslim Personal Law and granted them protection ‘That the Hon'ble High Court also granted the custody of Nazneen to accused and in pursuant to this order, couple started living together. ‘That the court clarified that this 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. ‘That after six months, Nazneen being frustrated from day-to-day quarrels decided to retum to her parents ‘That Nazneen parents persuade her to register an FIR against accused under Section 361 and Section 503 of the IPC, Section 3 and Section 4 of POSCO and Section 9 and 10 of Child Marriage Prohibition Act. ‘That according to the medical report of Nazneen, possibility of attempted sexual intercourse could not be ruled out ‘That Mr Batra filed an Anticipatory bail on behalf of accused which was allowed by High Court16. 18, INTRA DEPARTMENT MOOT COURT COMPETITION 2022 (MEMORIAL ON THE BEHALF OF RESPONDENT) ‘That Mr Batra on behalf of accused moved another application before HC of P&H under Section 482 of CrPC. for quashing the FIR. ‘That the Hon'ble High Court dismissed the petition of accused observing that the previous order passed by this Court was abundantly clear and the order granting the protection to the accused was not meant to immune the accused from any legal action that could be initiated against them for committing any offence under other statutes if any. That accused challenged the Order of Hon'ble HC of Punjab and Haryana before SC of India ‘That the Hon'ble Supreme Court entertained a Special Leave Petition under Article 136 of the Constitution of India.INTRA DEPARTMENT MOOT COURT COMPETITION 2022 (MEMORIAL ON THE BEHALF OF RESPONDENT) STATEMENT OF JU! The petitioner has approached this Hon'ble Court under Art. 1364of the Constitution of India The respondent has appeared to the Hon’ble Supreme Court of India in response to the petition filed by the petitioners. 136. Special eave to appeal by the Supreme Court {Nonwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave > ‘appeal from any judgment, decree, determination, sentence or order in any cause or mater passe or made by any cour or tribunal in the territory of India {) Nothing in clause (1) shall apply wo any judgment, determination, sentence or onder passed oF made by any ‘court or trbunal constituted by or under any law relating to the Armed Forces 8INTRA DEPARTMENT MOOT COURT COMPETITION 2022 (MEMORIAL ON THE BEHALF OF RESPONDENT) ‘ATEMENT OF ISSUES Whether the Hon'ble High Court of Punjab & Haryana was justified in granting protection tothe estranged couple under Article 21 of the Constitution of India or not? Whether the order granting the custody of estranged wife to the petitioner immune him from subsequent offences, ifany or not? ‘Whether the FIR against Rahul is liable to be quashed or not? Whether the Hon'ble High Court under shield of Article 21 of the Constitution of India indirectly promoted Child Marriage ignoring the Special Statue? ‘Whether personal laws prevail over Special law?INTRA DEPARTMENT MOOT COURT COMPETITION 2022 (MEMORIAL ON THE BEHALF OF RESPONDENT) SUMMARY OF ARGUMENTS 1, Whether the Hon'ble Court of Punjab and I iryana was justified in granting protection to estranged couple under Article 21 of the Constitution of India? It is humbly contended before this Hon'ble Court that Punjab and Haryana High Court was not justified in granting protection of the estranged couple under Article 21 of the Constitution of India, If such protection is provided to the Couples, then entire social fabric of the society would get disturbed. Moreover, the marriage is void according to Section 12 of the PCM Act and granting the custody of Nazncen to hhusband will defeat the objective of our special acts such as prohibition of child marriage and Protection of Children from sexual offences. Hence, the petitioners cannot be allowed to take the benefit of the constitutional remedy of protection of their life and liberty on the pretext oftheir void marriage. 2. Whether the order granting the custody of the estranged wife to the petitioner immune him from the subsequent offences, if any or not? It is humbly submitted before the Hon"ble Court that the granting custody of estranged wife to the petitioner does not immune him from the subsequent offences. ‘The Petitioner has committed offences under Section 361 and Section 503 of the IPC, Section 3 and Section 4 of the POCSO and Section 9 & 10 of the Child Marriage Prohibition Act for and he must be held strictly liable for his actions. 3. Whether the FIR against Rahul is liable to be quashed or not? It is humbly submitted to this Hon'ble court that FIR is not liable to be quashed as the respondent is minor and the offence committed by accused on minor are heinous in nature, The offences such as sexual offene: kidnapping and child marriage is an evil to our society and acquitting such person can encourage other people to commit such crime, which deteriorate condition of women and children, 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? 10INTRA DEPARTMENT MOOT COURT COMPETITION 2022 (MEMORIAL ON THE BEHALF OF RESPONDENT) It is humbly submitted before this Hon’ble Court that High Court promoted Child Marriage under the shield of ART. 21 of Constitution of India, PCMA 2006 is a special statue and this statue is enacted for some special purpose that is to prohibit the child marriage so that right to live with dignity is secured. If Court ignore these statues the purpose will not be served. Therefore, the court should not ignore PCMA 2006. Whether personal law prevail over special law? It is humbly contended before this Hon'ble Court that "Special Act" and being a subsequent legislation, will supersede the provisions of Muslim Personal Law, Hindu Marriage Act, or any other personal law to this degree and in the event of a disagreement. Ifthe Special law does not due importance, then integrity of our society Will be imperilled, uINTRA DEPARTMENT MOOT COURT COMPETITION 2022 (MEMORIAL ON THE BEHALF OF RESPONDENT) ARGUMENTS ADVANCED, 1, WHETHER THE HON’BLE COURT OF PUNJAB & HARYANA W. JUSTIFIED IN GRANTING PROTEC TO THE ESTRANGED COUPLE UNDER ARTICLE 21 OF THE CONSTITUTION OF INDIA OR NOT? 1a. Th is estranged couple under Article 21 of the Indian Constitution, 1.4.1.1 is humbly contended before this Hon'ble Court that High Court was not justified in granting protection to the estranged couple under Article 21 of the Indian Constitution as if such protection is granted to runaway couples’ entire social fabric of the society gets disturbed. 1.2. Ingredients of Article 21: 1.2.1.As per Article 21 of Indian Constitution- “No person shall be deprived of the life and personal liberty according to the procedure established by law” The Right to life in Article 21 of Indian constitution does not mean animal existence forthe mere act of breathing, It guarantees the right to a dignified life, 1.2.2:Highlighting the paramountcy of every woman being treated with decency and dignity. Moreover, every woman has the right to live in dignity—free of fear, coercion, violence and discrimination. Every woman has the right to health, including sexual and reproductive health. 1.3. The social integrity of our country can be jeopardized by Minor Marriages. 1.3.1. In the instance ease Nazneen, who was a minor at the time, was married to the accused, and the two of them went to court to seck protection under Article 21 As the marriage is void, the high court erred in granting protection to the estranged couple under Article 21 of the Indian Constitution 1.3.2.As in the case of “Amnider Kaur and another vs State of Punjab and others", >Punjab and Haryana Court had refused to provide protection in a run-away ‘marriage case where the girl was minor, aged about 16 years as the marriage was void. 1.3.3. Furthermore, in case of Sukhwinder Singh and another Vs. State of Punjab and others’, wherein the Court had denied protection to run away couple on the 2 Amider Kaur and another vs State of Punjab 2010 (1) RCR (Criminal) 261 » Sukhwinder Singh and another Vs. State of Punjab and others CRWP-6912-2020 2INTRA DEPARTMENT MOOT COURT COMPETITION 2022 (MEMORIAL ON THE BEHALF OF RESPONDENT) ‘ground that child marriage was undertaken in violation of the provisions of the Child Marriage Act. Safeguards of Fundamental Rights. 1.4.1:The vitality of fundamental rights is stated in our constitution, Fundamental rights, are the rights conferred by the Part III of the Indian Constitution from Article 12 to 35. Fundamental Rights, as the name suggests these are one of the most important sources for the protection and maintenance of human dignity and integrity, which also contributes towards the development of the society as a whole, 1.42. The Court must assess the Article 14, 15 and Article 21 of the Indian Constitution. Article 14,15(1) prohibits discrimination. However, Article 15(3) ‘emphasizes that if there is any benefit in favour of women, that would not be a discrimination, violation of Article 14 and 15. 1.43. Article 21 emphasize for decent living, which should be available including, Muslim girls, to decide their future by getting proper education and ‘empowerment and also to decide their marital life 1.4.4.Emphasizing on the Fundamental Rights the Hon'ble Supreme Court in case of Independent Thoughts vs Union of India and another “held that Articles 14, 15 and 21 of the Constitution of India read with National Policy and National Plan, provides that a girl between the age of 15 and 18 years need protection from carly marriages and to provide the girl child, a life of dignity ‘The Court should deny fugitive void_marriages the protection of life and ‘personal liberty. 15.1, It is respectfully asserted before this Court as the girl is not competent to marry 1s per provisions of the PCM act,2006. Therefore, the Court should deny the protection to the estranged couple under Article 21 of the Constitution of India as in the case of Neelam Rani and Anr vs State of Punjab and Ors', the Supreme Court denied the custody of the minor wife to the. husband 1.5.2. Moreover, it is the duty of the state to take serious measures to ensure that practice of Child Marriage is speedily abolished. So that girl child to live a dignified is ensured under Article 21 of the Constitution. © AIR 2017 SC 4908 5 Neelam Rani and Ane vs Sate of Punjab CRWP No.10067 of 2020 3INTRA DEPARTMENT MOOT COURT COMPETITION 2022 (MEMORIAL ON THE BEHALF OF RESPONDENT) 2. WHETHER THE ORDER GRANTING THE CUSTODY OF THE ESTRANGED WIFE_TO_THE PETITIONER IMMUNE _HIM_ FROM SUBSEQUENT OFFENCES, IF ANY OR NOT? 2.1, Order granting the custody of the estranged wife to the petitioner does not immune him from subsequent offences. 2.1.1. It is humbly contended before this Hon'ble Court on behalf of the Respondent that order granting the custody of the estranged wife to the petitioner does not immune him from subsequent offences. 2.2, Welfare of Child is paramount consideration, 2.2.1. ‘The word ‘welfare’ has to be constructed literally and must be taken in its ‘widest sense. The moral and ethical welfare of the child must also weight with the Court as well as its physical wellbeing, 2.2.2. In the instance case, The Hon’ble High Court erred in handing over custody of the minor wife to the husband as the male contracting party of a child marriage shall not be entitled for the custody of the female child whose marriage has been contracted by him even if the female child expresses her desire to go to his custody as granting the custody of minor wife to husband will affect the prosperity and wellness of Children 2.3. Significance of PCM Act. 2.3.1, ‘The term child has been defined in Section 2 (a) ofthe Prohibition of the Cl id Marriage Act which states that child means a person who, if a male, has not completed twenty-one years of age, and iffa female, has not completed eighteen years of age. Section 1 of PCM Act makes it applicable to all citizens of India 2.3.2. ‘The prime reason for bringing in the P.C.M. Act is the prohibition of the solemnization of the Child Marriage. Article 39 of the Constitution of India required the State to direct its policy towards avoiding abuse of the tender age of children. The Prohibition of C! Id Marriage Act intended to protect the interest of children and served the larger constitutional purpose. 2.4. P.CM Act applies to Muslim Personal Law. 24.1. It is humbly contended before Hon'ble Court that when the prescribed marriageable age of the girl is 18 years, this Court cannot be called upon to issue the sought declaration that the provisions of the P.C.M. Act are not applicable for the petitioner, as she belongs to Muslim community, The courts have the 14INTRA DEPARTMENT MOOT COURT COMPETITION 2022 (MEMORIAL ON THE BEHALF OF RESPONDENT) power coupled with the duty fo prevent and not to promote the child marriages: This Court cannot and would not pass an order by virtue of which little girls become child brides. 242. As the codified law prevails over all other laws, be they are ecclesiastical, personal or customary, the rights which the Muslim girls had under Muslim Personal Law (Shariat) Application Act, 1937 do not remain alive on the commencement of the PCM Act. In case of Mohammed Nihal vs. State §, the Division Bench of Delhi High Court held that The Prohibition of Child Marriage ‘Act, 2006 was applicable to Muslims. 2.5, Petitioner committed offence of Child Marriage. 2.5.1. In the instance ease, accused solemnized marriage with a minor girl according, to Hindu ceremonies’. As in case of Abdul Khader vs. K, Pechiammal "Madras, High Court observed that the social objective of the provisions of the Prohibition of Child Marriage Act, 2006 aimed to prevent the evil practice of solemnization of child marriages in the country towards enhancing the health of child and the status of women. 2.6. No law exemption granting immunity to the husband for having sexual sercourse with 2.6.1. POCSO Act was enacted “ ith the objective thatthe children of tender age are not abused and their childhood and youth are protected against exploitation” and that they are “given facilities to develop in a healthy manner and in condition of freedom and dignity”. 2.6.2. ‘The learned counsel of the respondent submitted that the victim girl had been subjected to medical examination and the medical examination result proves that the victim was subjected to penctrative sexual assault.” As in case of Ashok Kumar ys. State of Tamil Nadu," the medical record shows that the victim has been subjected to penetrative sexual assault and therefore, Madras High Court is of the opinion that itis nota fit ease for grant of bail at this stage 2.6.3, Therefore, tis respectfully asserted before this Hon'ble Court that custody of estranged wife to the petitioner does not immune him from subsequent offences. Mohammed Nika vs State 2008 (4) RCR(Criminal 477 ” Moot Proposition Page2 Para2 *Astiok Kumar vs, State of Tamil Nadu.2015(2) MLUC#210 * Moot Proposition Page 4 ® Ashok Kumar vs Sate of Tamil Nad, Cx. O.P, No, 4 of 2021 15INTRA DEPARTMENT MOOT COURT COMPETITION 2022 (MEMORIAL ON THE BEHALF OF RESPONDENT) 3. WHETHER THE FIR AGAINST RAHUL IS LIABLE TO BE QUASHED OR or? 3.1. FIR is not liable to be quashed. 3.1.1, It is humbly submitted before this Hon’ble Court that the FIR against accused will not be invalidated since the act, he committed is horrible, 3.1.2. In this case, the defendant commits a heinous crime and the court cannot dismiss the FIR. He marries with respondent and developed a sexual relationship with her 3.1.3, According to Criminal Law (Amendment) Act 2013, any sexual act ity with a woman with or without her consent when she is below 18 years of age constitutes rape. A woman under age of 18 is considered incapable of giving consent for any kind of sexual activity. Hence, the court must not dismiss the FIR 3.1.4. In the case of Gian Singh vs. State of Punjab", the Supreme Court held that High Courts shall not quash the eriminal eases of serious and heinous nature, or in connection with public concems. 3.2. Offence of Kidnapping and Criminal Int ion. 3.2.1. Kidnapping from lawful guardianship. — Section 361 of IPC read as under: -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. 3.22. Incase of Raman @ Ramar vs. The State represented, it was observed by the Hon'ble court that once the minor girl is taken away or kidnapped from the custody of natural or legal guardian, Section 363 of LP.C. would stand attracted. 3.23. In the instance case, it was submitted by the accused that respondent had left her parental home voluntarily and eloped with the accused; but « minor is not ‘mature enough to give their consent and not mentally capable of understanding the consequences of their actions. It is clear that accused entice her and following that enticement she left her parents guardianship. "Gian Singh vs, State of Punjab SLP (CRL) No. 8989 OF 2010 ®Raman (y Ramar vs, The Ste CRL. A.No. 309 OF 2019 16INTRA DEPARTMENT MOOT COURT COMPETITION 2022 (MEMORIAL ON THE BEHALF OF RESPONDENT) 3.24. In case of Satish Kumar Jayanti Lal Dabgar v. State of Gujarat", it was, ‘observed by the Hon'ble HC that consent of minor has no meaning in the eyes of law. Consent of minor is immaterial in as much minor is not capable of giving consent; medicinal evidence clearly proves that sexual intercourse has admitted the same would amount to rape. 3.2. As the minor is incapable of giving their consent and even if they gave their consent; consent of minor is no consent because minor is not mentally and physically mature enough to give their consent to the appellant. 3.26. Section 503 Of Criminal Intimidation explains that when there should be threat of injury to @ person, it could be to his person, reputation or property, or ‘the same to anyone elose to that person; the threat should be with intent to cause ‘alarm to that person or to cause the person As the accused accepted Nazneen proposal although he knows that Nazneen being a minor is not psychologically ‘mature enough to take the decision and if the minor is being married then it will threat her life to live with dignity which will infringe her fundamental right siven in the Constitution of India. ENACTED TO SECU! HE BEST # OF ILD 3.3.1. The preamble recognize that best interest of child should be secured and POCSO Act was enacted with reference to Article 15(3) of the Constitution. 3.3.2. POCSO states that any child who is below the age of 18 is minor and any kind ‘of sexual intercourse with them is amounts to rape. According to Section 3 and 4 of POCSO defines the sexual assault and its punishment. As in case of Independent Thought vs. Union of India'* the husband of a gitl child would be liable for punishment for a child marriage under the PCM Act, for penetrative sexual assault or aggravated penetrative sexual assault under the POCSO Act and if the husband and the girl child are living together in the same or shared household for rape under the IPC. 3.3.3. In the instance case the respondent is minor and consent of minor is immaterial(supra) she is incapable of giving her consent. The accused committed the offence of penetrative sexual act, ® Satish Kumar Jayant Lal Dabgar v. State of Gujarat 2015 (2) RCR(Criminal) 230, 2 Suprad ”INTRA DEPARTMENT MOOT COURT COMPETITION 2022 (MEMORIAL ON THE BEHALF OF RESPONDENT) 3.34. In case of Raman @ Ramar v. The State Represented, (supra'S}it was contended by the Hon'ble Court that the victim is minor according to POCSO and did penetrative sexual act on the vietim so the see. 3 and see. 4 of POCSO stands attracted 3.4. Child Marriage is an offence. 3.4.1. The appellant has consummated Marriage with victim despite of knowing that the girl is minor the appellant enticed her and performed Marriage Ceremonies with her and as the gitl is minor the marriage between them is unlawful and void 3.42. PCMA 2006 states minimum age for marriage which 18 for girls and 21 for boys. Marriage with minor is considered as a crime and one can get imprisonment or fine or both 3.43, Moreover, The Prohibition of PCM (Kamataka Amendment) Act 2016 passed in April 2017 declared all marriages between minor is void. Therefore, any marriage ofa child ie. a female aged below 18 years and a male below 21 years is void ab initio, 3.44 In the instance case the girl was 16 years of age in capable of giving her consent as minor is not mature and physical and mentally strong to give their consent and couldn't understand the consequences of their actions. Hence, the ‘victim was enticed by appellant she left the home, the performs Hindu Marriage Ceremonies with the appellant and appellant took advantage of her adolescence and formed sexual relation with her. 3.45. In case of Raman @ Ramar (supra'), it was contended by the court that he performed minor marriage with the victim so See 9 and Sec10 of PCMA stands attracted. 3.5. Accused is liable under all the above-mentioned sections of IPC. POCSO and PCMA, 3.5.1. Therefore, the accused is liable under section361 and $03 of IPC, Sec 3 and 4 of the POCSO, See 9 and 10 of the PCMA as the Nazne: is minor as per the law. ® Supral2 Supral2 18INTRA DEPARTMENT MOOT COURT COMPETITION 2022 (MEMORIAL ON THE BEHALF OF RESPONDENT) 4, WHETHER THE HON'BLE HIGH COURT UNDER THE SHIELD OF ART. 21 QF THE INDIAN CONSTITUTION INDIRECTLY PROMOTED CHILD MARRIAGE IGNORING THI AT 4.1 Disregard of the PCMA 4.1.41 The Hon'ble High Court promoted Child Marriage under the shield of Art. 21 of Constitution of India and ignored the Special Statue Prohibition of Child Marriage (in short PCMA) 2006 which is enacted to prohibit child marriage in India 4.1.2 Furthermore, PCMA 2006 defines minor girl who is less than 18 years of age and male who is less than 21 years of age. PCMA only amends Hindu Marriage Act but is silent on other personal laws as well as the aspects like that of sexual relationship or violence and abuse and related needs of care and protection which are covered by other laws. 4.2 PCMA supersedes Muslim Personal Law 4.2.1. PCMA is a Secular Law. It was enacted with the purpose of being uniformly applied to all faiths including Muslim Personal Laws, 4.2.2 In case of Independent Thought v. UOI, "it was observed by the court that PCMA doesn’t amend other personal laws for marriage which is @ loophole in those laws and which promotes child marriage and deteriorate the conditions of women and children. Furthermore, Justice Deepak Gupta acknowledged the Act as secular and prevailing over provisions of Both the Hindu Marriage ‘Act and the Muslim Marriages and Divorce Act. 4.3 PCMA is not incor cent with article 21 of Indian Constitution 4.3.1 ART. 21 constitute the basic structure of our Indian Constitution and Court cannot deny to grant protection to the runaway couples but the Court can’t ignore special statue such as PCMA 2006 and allows minor child to marry. PCMA must be implemented on everyone irrespective of thei religion. 4.3.2 Inthe case of Jaspreet Kaur and. V. State of Punjab “and Ors, Prokibition of Child Marriage Act,2006 will be implemented as it is uniform in its application regardless the religion of the parties involved. Therefore, any offense committed under the Act shall be punishable. "Suprad * Jaspreet Kaur and, V. State of Punjab 2021(3) RCR(Ciminal)S66 19INTRA DEPARTMENT MOOT COURT COMPETITION 2022 (MEMORIAL ON THE BEHALF OF RESPONDENT) 43.3. In Case of Miss. Seema Begaum D/O Khasimsab vs State of Karnataka "it ‘was held by the court that PCMA should prevail over the Muslim personal lw or any other personal law as itis contradicting in nature as with the age of marriage, 4.3.4 Furthermore, it was contented by the court that when the codified law prevails over all other laws, be they are ecclesiastical, personal or customary, the rights which the Muslim girls had under Muslim Personal Law (Shariat) Application Act, 1937 do not remain alive on the commencement of the P.C.M. Act. When there is legislative ban on the child marriages, the courts cannot go out oftheir way to help the promoters of child marriages. (supra) 4.4 Hon'ble High Court indirectly promoted Child Marriage under the Shield of Article 21 of the ion of Indi 4.4.1 Inthe instance case, its clear that the respondent was minor and the appellant performed Hindu Marriage Ceremonies with her. The marriage was not valid as per law, as she is a minor the marriage is unlawful and illegal 4.4.2. Thus, itis respectfully asserted before this Hon'ble Court that High Court indirectly promoted Child Marriage under the shicld of Article 21 of Indian Constitution. Miss. Seema Begaum D/O Khasimsab vs State of Kamataka WP NO. 75889 OF 2013 20INTRA DEPARTMENT MOOT COURT COMPETITION 2022 (MEMORIAL ON THE BEHALF OF RESPONDENT) 5. WHETHER PERSONAL LAW PREVAILS OVER SPECIAL LAW? 5.1. Special law supersedes personal law. 5.1.1. It is humbly contended before this Hon'ble Court on behalf of Respondent that provisions of the Prohibition of Child Marriage Act, 2006, as a "Special Act” and being a subsequent legislation, will supersede the provisions of Muslim Personal Law, Hindu Marriage Act, or any other personal law to this degree and in the event of a disagreement. 5.2. The Purpose of the P.C.M Act is to prohibit child marriages from being solemnized, 5.2.1. The objective behind enacting the P.CM. Act was to curb the menace of child marriages, which is still prevalent in this country and is most common among ‘the Muslim community and in rural areas. 5.2.2, Emphasizing the prominence of P.C.M Act, a Coordinate Bench of Punjab and Haryana High Court in Karmvir vs. State of Haryana “observed that "The act of 2006 is applicable to all citizens of India, irespective of religion, caste, creed etc, This Act has not saved the Muslim Personal Law or Shariat Law in its application to Muslims for the matters covered by the Act of 2006, Consequently, in respect of matters covered by the Act of 2006, provisions of the Act of 1937, which are inconsistent with the Act of 2006, stand repealed by impli 5.3. On the grounds of adhering to a certain religion, the PCM act cannot_be avoided. 5.3.1. It is humbly contended before Hon’ble Court that the Indian Constitution Articles 14, 15, and 21 must be considered by the Court when deciding on Art 25's mandate. Article 14, 15(1), 16 prohibits discrimination. There shall be no discrimination, solely based on the ground of religion, race, caste, sex, place of birth 5.3.2. Hence, merely referring Article 25, the constitutional safeguards given under Arti 14, 15(3) and 21 cannot be taken away, as prime objective is towards gender equality. In Case of Yunusbhai Usmanbhai Shaikh v. State of Gujarat *lthe Hon’ble Court held that, Provisions of PCM Act are in no way against the religious rights guaranteed under Article 25 of the Constitution of India. In fact, kari vs. State of Haryana Ci. Misc. No. M3322 of 2013, Yunusbhai Usmanbhai Shaikh v. State of Gujarat 2016(1) RCR(Criminal)690 aINTRA DEPARTMENT MOOT COURT COMPETITION 2022 (MEMORIAL ON THE BEHALF OF RESPONDENT) the same is in favour of all the girl children in getting proper education and ‘empowerment and equal status as that of man in the Society, as guaranteed under Article 14,15,16 and 21 of the Constitution, 5.33. Article 21 has been interpreted by the Hon'ble Supreme Court so as to ‘maintain proper social justice, accordingly, right to life and personal liberty, guaranteed under Article 21 emphasize for decent living, which should be available including Muslim girls, to decide their future by getting proper education and empowerment and also to decide their marta life. 4. POCSO Act defined as follows 5.4.1. The Protection of Children from sexual offences (POCSO) as any person below the age of 18 years. This implies that the age of consent for sex is also 18 years. The POCS D Act deals with sexual offences committed against a child defined under Section 2(1) (d) thereof to be a person below the age of 18 years ‘The POCSO Act does not define rape, but it defines penetrative sexual assault under Section 3 and aggravated penetrative sexual assault under Section $ and the punishments are provided for them under Section 4 and 6 respectively. 5.5, POCSO Act trumps personal law. 5.5.1. Section 42A of the POCSO Act gives over riding effeet to the POCSO Act by providing that the provisions of the POCSO Act shall be in addition to and not in derogation of the provisions of any other law for the time being in foree and, in cease of any inconsistency, the provisions of the POCSO Act shall have overriding effect on the provisions of any such law to the extent of the inconsistency. 5.5.2, Therefore, The Hon'ble Supreme Court in case of Independent Thought vs Union of India? held that the husband of a girl child would be liable for punishment for a child marriage under the PCM Act, for penetrative sexual assault or aggravated penetrative sexual assault under the POCSO Act and if the husband and the gil child are living together in the same or shared household for rape under the IPC. 5.5.3. Thus, it is respectfully asserted in front of the Hon'ble Court that if this, provision is ignored or given a go by, it would put the girl child in a worse off situation because after marriage she could be subjected to aggravated penetrative 2INTRA DEPARTMENT MOOT COURT COMPETITION 2022 (MEMORIAL ON THE BEHALF OF RESPONDENT) sexual assault for which she might not be physically, mentally or psychologically ready. 23INTRA DEPARTMENT MOOT COURT COMPETITION 2022 (MEMORIAL ON THE BEHALF OF RESPONDENT) 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 Declare that Hon’ble High Court has made an error while granting the custody of, the estranged couple under Article 21 of the Constitution of India, 2. To uphold that order granting the custody of estranged wife does not immune the accused from subsequent offences. and Nazneen Custody should be given back to her Parents. ‘To hold that FIR against accused must not be quashed as Mr Rahul has committed the offence under Section 9 and 10 of PCM Act, Seetion 361 and $03 of IPC and Section 3 and 4 of POCSO At. ‘To Declare that Hon'ble High Court promoted Child Marriage ignoring the Special Statue under the shield of Article 21 of the Constitution of India, 5. To uphold that Special Law will prevail over Personal Law. And/or any other relief or order that the 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 Respondent 2