Petitioner's Memorial End Term Problem 2

MOOT COURT MEMORIAL
IN THE HON’BLE HIGH COURT OF DELHI
TEAM CODE:-18RU11011
APPEAL (CRIMINAL) FILED IN THE HON’BLE HIGH COURT OF DELHI, U/S 374. OF
CRIMINAL PROCEDURE CODE, ALONG WITH THE DIRECTION TO THE STATE FOR
PRODUCING THE RESPONDENT 2 AND WITHDRAWAL OF FIRST INFORMATION
REPORT U/S 483 OF CRIMINAL PROCEDURE CODE.
IN THE MATTERS OF
1. MR. ANIL ..…………………………………………………Petitioner
Vs.
1. THE STATE OF NCT OF DELHI

2. LAXMAN SINGH......…………………………………………………...….Respondents
On submission to the Hon’ble High Court of Delhi,
MEMORANDUM FOR THE PETITIONER
MEMORANDUM OF PETITIONERPage 1
MOOT COURT MEMORIAL
TABLE OF CONTENTS
I. List of
abbreviation…………………………………………………….3
II. List of Authorities ………………

…………………………………….5
 Acts/ Rules/ Orders……………………………..….
………………5
 Books referred…………………………………..….
………………5
 Table of cases…………………………………….….
…………….6
 Websites referred……………………………………..
……………7
III. Statement of
Jurisdiction………………………………………………8
IV. Statement of
Facts……………………………………………………..9
V. Questions
Raised……………………………………………………….11
VI. Summary of
arguments………………………………………………………13
VII. Arguments
advanced…………………………………………………..21
MOOT COURT MEMORIAL
VIII. Prayer ……………………………………………….

………………..29
LIST OF ABBREVIATIONS
1. S.: Section
2. IPC: Indian Penal Code
3. CRPC.: Criminal Procedure Code
4. HMA.: Hindu Marriage Act, 1955
5. CRMA.: Child Restraint Marriage Act, 1929
6. PCMA.: The Prohibition of Child Marriage Act, 2006
7. MA.: The Majority Act, 1875
8. GWA.: the Guardians and Wards Act, 1890
8. HMGA.: Hindu Minority and Guardianship Act,1956.

9. FIR.: First Information Report
10. Hon’ble: Honorable
11. ch. : chapter
12. pg./p..: page
MOOT COURT MEMORIAL
13. No.: Number
14. i.e.: That is
15. ors. : others
16. vs.: Versus
17. S.C.: Supreme Court
18. Para: Paragraph
19. A.I.R: All India Reporter
20. Supreme Court Cases
21. H.C.: High Court
LIST OF AUTHORITIES
STATUTES/ACTS
 Indian Penal Code 1860
 Constitution of India.
 Criminal Procedure Code
 Hindu Marriage Act, 1955
 Child Restraint Marriage Act, 1929
 The Prohibition of Child Marriage Act, 2006
 The Majority Act, 1875
 The Guardians and Wards Act, 1890
 Hindu Minority and Guardianship Act,1956.
BOOKS REFERRED
MOOT COURT MEMORIAL
 Justice P.S. Narayana, Law of Writs, 6th Edn, Asia Law House, 2010
 Ratanlal & Dhirajlal, The Indian Penal Code, 2009
 Prof. M P Jain, Indian Constitutional Law, 5th edition
 P M Bakshi, The Constitution of India, 10th Edn, 2010
 Justice B.P. Banerjee, Writ Remedies, 3rd Edition
TABLE OF CASES
S. No. Name of the Case Citation Pg. No.
1. Charanjit Lal Vs. Union of India AIR 1951 SC 41 21
2. Sundararajan Vs. Union of India, AIR 1970 Del 29 21
3. Bandhua Mukti Morcha vs. Union of AIR 1984 SC 802 21

India
4 Smt. Nahid Vs Mohd Islam, AIR 1989 All 161 21
5. Sadanandan Vs. Raghava AIR 1975 Ker 2 21
6. Kiran Singh Vs. Anand Pratap Singh AIR 1980 SC 1749 21
7 Mohd. Ikram Hussain v/s. State of U.P. AIR 1964 S.C. 1625 21
8. Yunusbhai Usmanbhai Shaikh Vs. Criminal Misc. 22

State of Gujarat & Another Application No. 8290 of
2015
MOOT COURT MEMORIAL
9. Neetu Singh v. State (1999) DLT 601 (DB) 23
10. Mrs Kalyani Chaudhary v. The State of 1978 CrLJ 1003 23

U.P
11. Seema Devi alias Simaran Kaur v. 1998 (2) Crime 168 23
State of H.P
12 Ravi Kumar v. The State 124 (2005) DLT 1 (DB) 23
13 Manish Singh v. State Govt of NCT AIR 2006 Del 37= 126 23
DLT 28 (DB)
14 Smt. Lila Gupta v/s. Laxmi Narain and AIR 1978 S.C. 1351 23
ors
15 Shankerappa v/s. Sushilaba, AIR 1984 Karnataka 112 23
16. Santosh vs. State of Rajasthan 2004 (2) Crl.L.R. 1394 24
17. Mahendrabhai Shyamsunder vs State 2001 CriLJ 829 = (2000) 25

Of Gujarat 4 GLR 806
18. D. Ramaswami v. State of Tamil Nadu AIR 1982 SC 792 27
19. Surinder Kaur v. Harbax Singh AIR 1984 SC 1224 27
20. Ruchi Majoo v. Sanjeev Majoo (2011) 6 SCC 479 27
21. Elizabeth Dinshaw v. Arvand (1987) 1 SCC 42 28

M.Dinshaw
22. Sumedha Nagpal v. State of Delhi (2000) 9 SCC 745 28
23. Shamsher vs. U.T.Chandigarh and 2011 (5) RCR (Crl.) 677 28
another
24. Balwinder Singh @ Binder vs. State of 2008 (3) RCR (Crl.) 28
Punjab and others
MOOT COURT MEMORIAL
WEBSITES
i. www.manupatra.com
ii. www.indiankanoon.org
iii. www.indlaw.com
STATEMENT OF JURISDICTION
The Hon’ble High Court of Delhi has the requisite jurisdiction to hear and
decide on this matter under SECTION 374 of Cr.PC which guarantees the
Right to Remedies to file the appeal before the Hon’ble Court by appropriate
proceedings
The petitioner hereby submits himself to the jurisdiction of the Hon’ble High
Court of Delhi and would like to adhere to the decisions of the Hon’ble High
Court of Delhi. No other proceeding has been instituted on the same issue in
this or any other Court of law.
MOOT COURT MEMORIAL
STATEMENT OF FACTS
1. One Mr. Anil was a young boy who had attained the age of 18 years.
He fell in love with Rani who was a girl in 15 years of her age. One
day, they both eloped from their respective homes and finally got
married in a Goddess Kali Temple in District Chamba of Himachal
Pradesh as per Hindu rituals and ceremonies.
2. Ms. Rani’s family members were against this Marriage. Even her
other family members including her grand-father and paternal uncle
were not ready to accept this marriage at any cost. They threatened
Rani of her life if she dared to do so.
3. Thereafter, Ms. Rani’s father, Mr. Lakshman Singh lodged an First

Information Report (FIR) against Mr. Anil on 2.03.2010 at Civil
Lines Police Station of Delhi under Sections 361,363,375 and 376 of
Indian Penal Code alleging him of kidnapping his daughter Ms. Rani
from his lawful guardian ship and committing rape under pretense of
MOOT COURT MEMORIAL
lawful marriage. Additionally, FIR also contained some allegations

which suggested labeling of the charges under POCSO Act 2012.
4. On 05.05.2010, a typed letter written and signed by Rani was

received by the SHO, Civil Lines Police Station by which she clearly
stated that she had married Mr. Anil consensually and requested the
court not to quash any criminal case proceeding against the persons
with whom she eloped as per her own will.
5. Thereafter, on 07.05.2010 Anil and Rani were arrested from Bilaspur

of Himachal Pradesh and were produced before the Principal District
& Sessions Judge, Tis Hazari Courts, Delhi on next day.
6. Although, Court directed Rani to undergo medical exam yet she

denied by placing reliance on her fundamental rights to non-
discrimination, speech and expression, privacy and life. In fact, she
uttered no word against her husband and claimed in her statements
before the Court that she eloped with Anil with her own consent.
7. Consequently on 10.05.2010, the Court ordered Rani be placed Nari

Niketan for a period of 3 months under protective and curative
measures and be produced before the Court as and when her
appearance is required.
8. On 17.12.2010, the Court declared their marriage void and ordered

Rani’s custody to be given to her parents. Additionally, Court found
Anil guilty of Kidnaping from lawful guardianship and Rape as per
relevant sections of the Indian Penal Code, 1860.
MOOT COURT MEMORIAL
9. On 20.02.2011, feeling aggrieved by the judgment of the Principal

District & Sessions Judge, Tis Hazari Court, Delhi, Anil approached
to the High Court of Delhi requesting it to invalidate his punishment
under IPC and declare his marriage with Rani lawful as per Hindu
Marriage Act 1955 and also, give him the custody of his lawful wife
along with prayed to impose cost of Rs 10 lakh as consequential
damages on respondents, Lakshman Singh as well as State of Delhi.
QUESTIONS RAISED
1. Whether Appellant is liable for the Kidnapping of Rani

from her lawful guardianship?
2. Whether Appellant’s Marriage with Ms. Rani is valid as
per relevant Sections of the Hindu Marriage Act, 1955?
MOOT COURT MEMORIAL
3. Whether appellant’s conviction under sections 361,363,

375, 376 of I.P.C., 1860 was valid in the eye of law? If
no, then;
1. Whether decree of a lawful marriage should be made
in their favor of Appellant?
2. Whether Rani’s custody be given to Appellant?
4. Whether the fine or compensation amounting to Rs.

10 lakh may be imposed on the Respondents.
SUMMARY OF ARGUMENTS
MOOT COURT MEMORIAL
ISSUE 1: Whether Appellant is liable for the Kidnapping of
Rani from her lawful guardianship?
It is most respectfully submitted that the petitioner did not either induce or
forcibly married the minor girl. She, out of her own, free will married the
petitioner as per Hindu rites and ceremonies. Further, the statement before
the Magistrate under section 164 of Code of Criminal Procedure, 1973 had
clearly established that the petitioner did not kidnap the minor girl.
ISSUE 2: Whether Appellant’s Marriage with Ms. Rani is valid
as per relevant Sections of the Hindu Marriage Act, 1955?
It is most respectfully submitted before the Hon’ble Court that HMA vide
Section 5 prescribed conditions of valid marriage1.
It most humbly submitted that, it is true that one of the conditions of a hindu
marriage is that the bride should have completed 18 years age and the bridegroom,
21 years. But, does this mean that a marriage where this twin condition as to ages is
not satisfied is, ipso facto, invalid or void? An examination of
1
Section 5. Conditions for a Hindu marriage.--A marriage may solemnized between any two
Hindus, if the following conditions are fulfilled, namely :--
(i) neither party has a spouse living at the time of the marriage;
(ii) 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;
(iii) the bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of
the marriage;
(iv) 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;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a
marriage between the two;
MOOT COURT MEMORIAL
section 11 of the HMA2 would seem to suggest otherwise. The said provision is as
under:-
It is also most humbly submitted that, though five conditions have

been stipulated in section 5 of HMA, only the contravention of three of them,
namely, clauses (i), (iv) and (v) would render the marriage to be null and
void.
Clause (iii) of section 5, which is the condition with regard to the

minimum ages of the bride and bridegroom, is conspicuous by its absence.
As a result, a Hindu marriage solemnized in contravention of clause (iii) of
section 5 of the HMA is valid. In this regard, the counsel pleads before the
Hon’ble Court that the marriage of the petitioner with the minor girl is valid
and not a void marriage.
ISSUE 3: Whether appellant’s conviction under sections
361,363, 375, 376 of I.P.C., 1860 was valid in the eye of law?
The minor girl has clearly stated that she left her home on her own and of her
own free will. To this effect, she has made statement before the Magistrate
under section 164 of Code of Criminal Procedure, 1973 3. This cuts
2
11. Void marriages.--Any marriage solemnized after the commencement of this Act shall be null and void and
may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it
contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5.
3
164. Recording of confessions and statements
(1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record
any confession or statement made to him in the course of an investigation under this Chapter or under any other law
for the time being in force, or at any time afterwards before the commencement of the inquiry or trial:
Provided that no confession shall be recorded by a police officer on whom any power of a Magistrate has been
conferred under any law for the time being in force
(2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound
to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not
record any such confession unless, upon questioning the person making it, he has reason to believe that it is being
made voluntarily
(3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not
willing to make the confession, the Magistrate shall not authorise the detention of such person in police custody
(4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an
accused person and shall be signed by the person making the confession;
and the Magistrate shall make a memorandum at the foot of such record to the following
effect:—
MOOT COURT MEMORIAL
through the case of kidnapping and insofar as the offence punishable under
section 376 IPC4 is concerned, the present case falls under the exception to
section 375 of IPC5 inasmuch as the minor girl is Petitioner’s wife and she is
above 15 years of age.
The allegation of criminal intimidation is also not sustainable at the outset

for the above same reason.
"I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may
make may be used as evidence against him and I believe that this confession was voluntarily made It was taken in
my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it
contains a full and true account of the statement made by him
(Signed) AB
Magistrate"
(5) Any statement (other than a confession) made under sub-section (1) shall be recorded in such manner hereinafter
provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the
case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded
(6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom
the case is to be inquired into or tried
4
376. Punishment for rape —
(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment
of either description for a term which shall not be less than seven years but which may be for life or for a term which
may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under
twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which
may extend to two years or with fine or with both:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of
imprisonment for a term of less than seven years.
(2) Whoever,—
(a) being a police officer commits rape—
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or
(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as
such public servant or in the custody of a public servant subordinate to him; or
(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under
any law for the time being in force or of a woman’s or children’s institution takes advantage of his official position
and commits rape on any inmate of such jail, remand home, place or institution; or
(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape
on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant; or
(f) commits rape on a woman when she is under twelve years of age; or
(g) commits gang rape,
shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for
life and shall also be liable to fine:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of
imprisonment of either description for a term of less than ten years.
Explanation 1 — Where a woman is raped by one or more in a group of persons acting in furtherance of their
common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-
section.
MOOT COURT MEMORIAL
Further, the petitioner being less than 18 years of age, even the offence under
Section 9 of the Prohibition of Child Marriage Act, which provides for the
punishment of a male adult above 18 years of age, is not made out.
ISSUE 3(1): Whether decree of a lawful marriage should be
made in their favor of Appellant?

It is most respectfully submitted that Section 3 of the Prohibition of Child
marriage Act, 2006, the Child marriages to be voidable at the option of
contracting party being a child and that a petition for annulling a child
marriage by a decree of nullity may be filed in the district court only by a
contracting party to the marriage who was a child at the time of the marriage.
Neither party has applied for the same.
Therefore, Section 3 of the Act, makes clear that, irrespective of whether a

child marriage is or is not voidable under personal law, makes every child
marriage voidable at the option of a party to the marriage, who was a child at
Explanation 2 — "Women’s or children’s institution" means an institution, whether called an orphanage or a home
for neglected woman or children or a widows’ home or by any other name, which is established and maintained for
the reception and care of woman or children.
Explanation 3 — "Hospital" means the precincts of the hospital and includes the precincts of any institution for the
reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.
CLASSIFICATION OF OFFENCE
Para I: Punishment—Imprisonment for life or imprisonment for ten years and fine—Cognizable—Non-bailable—
Triable by Court of Session—Noncompoundable.
Para II: Punishment—Imprisonment for two years or fine or both—Non- Cognizable—Bailable—Triable by Court
of Session—Non-compoundable.
5
375. Rape —
A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman
under circumstances falling under any of the six following descriptions:—
First — Against her will.
Secondly — Without her consent.
Thirdly — With her consent, when her consent has been obtained by putting her or any person in whom she is
interested in fear of death or of hurt.
Fourthly — With her consent, when the man knows that he is not her husband, and that her consent is given because
she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or
intoxication or the administration by him personally or through another of any stupefying or unwholesome
substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly — With or without her consent, when she is under sixteen years of age.
Explanation — Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception — Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not
rape.
MOOT COURT MEMORIAL
the time of marriage. Another important aspect of this provision is that a

petition for annulling a child marriage by a decree of nullity can be filed only
by a party to the marriage, who was a child at the time of marriage.
ISSUE 3(2): Whether Rani’s custody be given to Appellant?
It is most respectfully submitted that the minor girl is illegally

confined by her parents and there is a greater risk to her life and safety since
the family may kill her to save honour of the family. Further, she does not
want to stay there. In fact, her only desire and wish is that she live with the
petitioner. Therefore in the interest of justice and equity, the minor girl
should be permitted to reside with the petitioner as they were married. Also,
it is must humbly submitted that it was also in her best interest that she live
with the petitioner and not with her parents as she would be looked after with
love and attention, whereas there was fear to her life if she were to be sent to
her parents' home.
Under Section 7 of the Guardians and Wards Act, 1890, the court has power
to make an order as to guardianship6.
Section 17 of the Guardians and Wards Act, 1890 specifies the matters
which need to be considered in appointing a guardian 7. Which, clearly
6
"7. Power of the Court to make order as to guardianship.—
(1) Where the Court is satisfied that is for the welfare of a minor that an order should be made--
(a) appointing a guardian of his person or property, or both, or
(b) declaring a person to be such a guardian, the court may make an order accordingly.
(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other
instrument or appointed or declared by the Court.
(3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order
under this section appointing or declaring another person to be guardian in his stead shall not be made until the
powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act. It is clear
that a guardian is appointed where it is for the welfare of a minor.
7
"17. Matters to be considered by the Court in appointing guardian.—
(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be
guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the
MOOT COURT MEMORIAL
indicates that the wishes of a minor need to be seriously considered by the

court where the minor is old enough. Sections 198 and 219 of the Guardians
and Wards Act, 1890 are also instructive.
Further, the natural guardians of a Hindu minor are set out in section 6 of the
1956 Act10.
welfare of the minor.

(2) In considering what will be for the welfare of the minor, the Court shall have regard the age, sex and religion of
the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if
any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his
property.
(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.
***
(5) The Court shall not appoint or declare any person to be a guardian against his will. Here again, there is stress on
the welfare of the minor consistently with the law to which the minor is subject, which is the Hindu Minority and
Guardianship Act,1956. What is of significance is the provision that if the minor is old enough to form an
intelligent preference, the court could consider that preference.
8
19. Guardian not to be appointed by the Court in certain cases.--Nothing in this Chapter shall authorise the Court to
appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of
Wards, or to appoint or declare a guardian of the person--
(a) of a minor who is a married female and whose husband is not, in the opinion of Court, unfit to be guardian of her
person, or
(b) of a minor whose father is living and is not, in the opinion of the Court, unfit to be guardian of the person of the
minor, or
(c) of a minor whose property is under superintendence of a Court of Wards competent to appoint a guardian of the
person of the minor.
9
21. Capacity of minors to act as guardians.--A minor is incompetent to act as guardian of any minor except his own
wife or child or, where he is the managing member of an undivided Hindu family, the wife or child of another minor
member of that family.
10
6. Natural guardians of a Hindu minor.--The natural guardians of a Hindu minor, in respect of the minor's person
as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are--
(a) in the case of a boy or an unmarried girl--the father, and after him, the mother :
Provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the
mother;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl--the mother, and after her, the father ;
(c) in the case of a married girl--the husband :
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this
section--
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or
sanyasi).
Explanation.--In this section, the expressions father' and mother' do not include a step-father and a step-mother. As
per this provision, the natural guardian of a minor hindu girl, who is married, is the girl's husband.
MOOT COURT MEMORIAL
It is also most respectfully submitted that section 13 of the 1956 Act 11 which
declares unequivocally that the welfare of the minor shall be the paramount
consideration in the appointment or declaration of any person as guardian of
a Hindu minor.
In the present case, RANI is a minor Hindu girl who is married. Her natural
guardian is no longer her father but her husband. A husband who is a minor
can be the guardian of his minor wife. Further, she cannot be forced or
compelled to continue to reside at Nirmal Chhaya or some other such
institution as that would amount to her detention against her will and would
be violative of her rights guaranteed under article 21 of the Constitution.
11
13. Welfare of minor to be paramount consideration.—
(1) In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the
minor shall be the paramount consideration.
(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to
guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the
welfare of the minor.
MOOT COURT MEMORIAL
ARGUMENTS ADVANCED
INTRODUCTION:
The minor girl is the lawfully wedded wife of the Petitioner and submits
that the minor girl was confined illegally by the Minor girl and his family
ever since from the order of the court dated 17.05.2010 affecting her liberty
and right to live with dignity as envisaged u/A 21 of the Constitution of
India.
Further, the Petitioner apprehends that to save the honor of the family, the
minor girl may be killed as the practice is prevalent in the Society in the
name of honor killings.
Further, The petitioner is the natural guardian, being husband of the

minor girl since both of them married as per Hindu rites and ceremony
and has legal right as decided in the cases of (1) Charanjit Lal Vs. Union
of India, AIR 1951 SC 41; (2) Sundararajan Vs. Union of India, AIR 1970
Del 29; (3) Bandhu Mukti Morcha Vs. Union of India, AIR 1984 SC 802.
Also, the petitioner has a legal right as husband to seek the custody of wife
as decided in Smt. Nahid Vs Mohd Islam, AIR 1989 All 161; Sadanandan
Vs. Raghava AIR 1975 Ker 2; Kiran Singh Vs. Anand Pratap Singh AIR
MOOT COURT MEMORIAL
1980 SC 1749 and Mohd. Ikram Hussain v/s. State of U.P. AIR 1964
S.C. 1625.
The counsel pleads before the Hon’ble High Court to concentrate on the fact
that the petitioner is the lawfully wedded husband of the Minor girl and her
illegal confinement or detention is against Art. 21 of the Constitution.
ISSUE 1: Whether Appellant is liable for the Kidnapping of
Rani from her lawful guardianship?
It is most respectfully submitted that the petitioner did not either

induce or forcibly married the Minor girl. She, out of her own, free will
married the petitioner as per Hindu rites and ceremonies. Further, the
statement before the Magistrate under section 164 of Code of Criminal
Procedure, 1973 had clearly established that the petitioner did not kidnap the
Minor girl.
Reliance may be placed on the decisions in the case of Yunusbhai

Usmanbhai Shaikh Vs. State of Gujarat & Another, in criminal
misc.application No. 8290 of 2015 where the husband is acquitted of charge
of kidnapping the minor girl on the ground that it was the minor girl
voluntarily left her parental house to marry the appellant.
In this present case also, it was the minor girl voluntarlliy, out of her free
will had chosen to desert her house to get married to the petitioner.
ISSUE 2: Whether Appellant’s Marriage with Ms. Rani is valid
as per relevant Sections of the Hindu Marriage Act, 1955?
It is most respectfully submitted before the Hon’ble Court that HMA vide
Section 5 prescribed conditions of valid marriage.
MOOT COURT MEMORIAL
It most humbly submitted that, it is true that one of the conditions of a hindu
marriage is that the bride should have completed 18 years age and the
bridegroom, 21 years. But, does this mean that a marriage where this twin
condition as to ages is not satisfied is, ipso facto, invalid or void? An
examination of section 11 of the HMA would seem to suggest otherwise.
It is also most humbly submitted that, though five conditions have

been stipulated in section 5 of HMA, only the contravention of three of them,
namely, clauses (i), (iv) and (v) would render the marriage to be null and
void. Clause (iii) of section 5, which is the condition with regard to the
minimum ages of the bride and bridegroom, is conspicuous by its absence.
As a result, a Hindu marriage solemnized in contravention of clause (iii) of
section 5 of the HMA cannot be regarded as a void or invalid marriage.
Reliance of such proposition can be laid upon the decision in the following
case laws.
(a) Neetu Singh v. State: 77 (1999) DLT 601 (DB);
(b) Mrs Kalyani Chaudhary v. The State of U.P.: 1978 CrLJ 1003;
(c) Seema Devi alias Simaran Kaur v. State of H.P.: 1998 (2) Crime
168];
(d) Ravi Kumar v. The State: 124 (2005) DLT 1 (DB)
(e) Manish Singh v. State Govt of NCT: AIR 2006 Del 37= 126 DLT 28
(DB).
(f) Smt. Lila Gupta v/s. Laxmi Narain and ors. AIR 1978 S.C. 1351
(g) Shankerappa v/s. Sushilaba, AIR 1984 Karnataka 112
In this regard, the counsel pleads before the Hon’ble Court that the marriage
of the petitioner with the Respondent No 2 is valid and not a void marriage.
MOOT COURT MEMORIAL
ISSUE 3: Whether appellant’s conviction under sections
361,363, 375, 376 of I.P.C., 1860 was valid in the eye of law?
The Minor girl has clearly stated that she left her home on her own and of
her own free will. To this effect, she has made statement before the
Magistrate under section 164 of Code of Criminal Procedure, 1973. This
cuts through the case of kidnapping and insofar as the offence punishable
under section 376 IPC is concerned, the present case falls under the
exception to section 375 inasmuch as the Minor girl is Petitioner’s wife and
she is above 15 years of age.
Reliance may be placed on the decision in Mahendrabhai Shyamsunder vs

State Of Gujarat on 29 August, 2000, 2001 CriLJ 829 and equivalent citation
of (2000) 4 GLR 806
The allegation of criminal intimidation is also not sustainable at the outset

for the above same reason.
Further, the petitioner being less than 18 years of age, even the offence under
Section 9 of the Prohibition of Child Marriage Act, which provides for the
punishment of a male adult above 18 years of age, is not made out.
ISSUE 3(1): Whether decree of a lawful marriage should be
made in their favor of Appellant?
It is most respectfully submitted that Section 3 of the Prohibition of Child

marriage Act, 2006, the Child marriages to be voidable at the option of
MOOT COURT MEMORIAL
contracting party being a child and that a petition for annulling a child
marriage by a decree of nullity may be filed in the district court only by a
contracting party to the marriage who was a child at the time of the marriage.
Neither party has applied for the same.
Therefore, Section 3 of the Act, makes clear that, irrespective of whether a

child marriage is or is not voidable under personal law, makes every child
marriage voidable at the option of a party to the marriage, who was a child at
the time of marriage. Another important aspect of this provision is that a
petition for annulling a child marriage by a decree of nullity can be filed only
by a party to the marriage, who was a child at the time of marriage.
Reliance may be placed on the decision in the following cases:
1. Santosh vs. State of Rajasthan 2004 (2) Crl.L.R. 1394.
Reliance of such proposition can be laid upon the decision in the

following case laws.
2. Neetu Singh v. State: 77 (1999) DLT 601 (DB);
3. Mrs Kalyani Chaudhary v. The State of U.P.: 1978 CrLJ 1003;
4. Seema Devi alias Simaran Kaur v. State of H.P.: 1998 (2) Crime
168];
5. Ravi Kumar v. The State: 124 (2005) DLT 1 (DB)
6. Manish Singh v. State Govt of NCT: AIR 2006 Del 37= 126 DLT 28
(DB).
7. Smt. Lila Gupta v/s. Laxmi Narain and ors. AIR 1978 S.C. 1351
8. Shankerappa v/s. Sushilaba, AIR 1984 Karnataka 112
MOOT COURT MEMORIAL
ISSUE 4: Whether Rani’s custody be given to Appellant?
It is most respectfully submitted that the Minor girl is at present lodged at

Nirmal Chhaya as an interim measure. She cannot be kept there interminably
and, in any event, she does not want to stay there. As held in Neetu Singh
(supra) she cannot be kept there against her wishes. She has refused to live
with her parents for fear of her life.
In fact, her only desire and wish is that she live with the petitioner.
Therefore in the interest of justice and equity, the Minor girl should be
permitted to reside with the petitioner as they were married.
Also, it is must humbly submitted that it was also in her best interest
that she live with the petitioner and not with her parents as she would be
looked after with love and attention, whereas there was fear to her life if she
were to be sent to her parents' home.
Even, otherwise, the Guardians and Wards Act, 1890. Section 4 (1)
defines a minor to mean a person who, under the provisions of the Indian
Majority Act, 1875 is deemed not to have attained his majority. As we have
indicated earlier in this judgment, a person under 18 years of age is a person
who has not attained his majority. Section 4(2) defines guardian to mean a
person having care of the person of a minor or his property, or of both his
person and property. Section 4(3) defines ward to mean a minor for whose
person or property, or both, there is a guardian. The points to note are that
the minor is a person under 18 years of age and that a guardian can be of the
person or property of the minor or of both the person and property of the
minor.
Under Section 7 of the Guardians and Wards Act, 1890, the court has power
to make an order as to guardianship. It is clear that a guardian is appointed
where it is for the welfare of a minor.
MOOT COURT MEMORIAL
Section 17 of the Guardians and Wards Act, 1890 specifies the matters
which need to be considered in appointing a guardian. This clearly indicates
that the wishes of a minor need to be seriously considered by the court where
the minor is old enough.
Sections 19 and 21 of the Guardians and Wards Act, 1890 are also
instructive. Two things are apparent. First, a guardian is not to be appointed
or declared of the person of a minor married female whose husband is not, in
the opinion of the court, unfit to be guardian of her person. Second, a minor
is incompetent to act as a guardian of any minor except his own wife. Put
differently, a minor husband is not incompetent, in law, to act as guardian of
his minor wife.
Further, Section 2 of the Hindu Minority and Guardianship Act,1956, sets

the tone by stating that [t]he provisions of this Act shall be in addition to, and
not, save as hereinafter expressly provided, in derogation of, the Guardians
and Wards Act, 1890. Thus, the provisions of Hindu Minority and
Guardianship Act,1956 are supplemental to Guardians and Wards Act, 1890.
The definition of minor under this act is of the same effect as that under the
1890 Act. The word guardian has also been similarly defined in section 4(b)
with the addition of an inclusive portion. The inclusive portion, inter alia,
refers to a natural guardian.
As per this provision of section 6 of the 1956 Act, the natural guardians of a
Hindu minor Hindu girl, who is married, is the girl's husband.
It is also most respectfully submitted that section 13 of the 1956 Act which
declares unequivocally that the welfare of the minor shall be the paramount
consideration in the appointment or declaration of any person as guardian of
a Hindu minor. A reading of the 1890 Act and the 1956 Act, together,
reveals the guiding principles which ought to be kept in mind when
considering the question of custody of a minor Hindu.
MOOT COURT MEMORIAL
From the analysis above, it could be seen that the natural guardian of a minor
Hindu girl whose is married, is her husband. We have also seen that no
minor can be the guardian of the person of another minor except his own
wife or child.
It is also most respectfully submitted that the preferences of a minor girl,

who is old enough to make an intelligent preference ought to be considered
by the court. Most importantly, the welfare of the minor is to be the
paramount consideration. In fact, insofar as the custody of a minor is
concerned, the courts have consistently emphasized that the prime and often
the sole consideration or guiding principle is the welfare of the minor as laid
out in Anjali Kapoor v. Rajiv Baijal: (2009) 7 SCC 322 at 326.
It is well settled that in matters concerning the custody of minor children, the
paramount consideration is the welfare of the minor and not the legal right of
this or that particular party. Reliance may be placed on the following
decisions:
1. D. Ramaswami v. State of Tamil Nadu, AIR 1982 SC 792;
2. Surinder Kaur v. Harbax Singh, AIR 1984 SC 1224;
3. Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479;
4. Elizabeth Dinshaw v. Arvand M.Dinshaw, (1987) 1 SCC 42;
5. Sumedha Nagpal v. State of Delhi, (2000) 9 SCC 745,
6. Shamsher vs. U.T.Chandigarh and another 2011 (5) RCR (Crl.) 677;
7. Balwinder Singh @ Binder vs. State of Punjab and others 2008 (3)
RCR (Crl.)
Similarly, in the present case, the Repondent No. 2 i.e., RANI is a minor
Hindu girl who is married. Her natural guardian is no longer her father but
MOOT COURT MEMORIAL
her husband. A husband who is a minor can be the guardian of his minor
wife.
The minor girl is refused to live with her parents and has categorically
expressed her desire and wish to live with her husband, i.e., the petitioner.
She would get the love and affection of her husband. She would have the
support of her in-laws. She cannot be forced or compelled to continue to
reside at Nirmal Chhaya or some other such institution as that would amount
to her detention against her will and would be violative of her rights
guaranteed under article 21 of the Constitution. Neetu Singh's case (supra) is
a precedent for this. Sending her to live with her parents is not an option as
she fears for her life and liberty and law empowers her since she surfaced the
age of majority today, i.e., 20 years old and on this ground also, she could
not be expected to take consent of her parents.
PRAYER
Wherefore, in the light of the questions raised, arguments advanced and
authorities cited, it is most humbly prayed and implored, that this
Hon’ble Court may graciously be pleased to issue:-
a) An order or direction, whereby the Minor girl has been
illegally confined by her parents on contrary to the
provisions of Constitution of India and direct the State
to produce her before this Hon’ble Court.
MOOT COURT MEMORIAL
b) An order or direction as this Hon’ble Court may deem
fit and proper to grant interim relief to the effect that
the Minor girl to stay with the petitioner, until the
pendency of this present writ petition.
c) Any other order to quash the FIRs registered against
the petitioner.
d) Any other writ, order or direction as this Hon’ble Court
may deem fit and proper in the circumstances of the
case to meet the ends of justice; and
e) Award cost of the petition to petitioner.
All of which is most

respectfully submitted.
submitted.
C
ounsel
No.
18
RU11011
(Counsel for the

petitioner)

Petitioner's Memorial End Term Problem 2

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MOOT COURT MEMORIAL

IN THE HON’BLE HIGH COURT OF DELHI

1. MR. ANIL ..…………………………………………………Petitioner

1. THE STATE OF NCT OF DELHI

On submission to the Hon’ble High Court of Delhi,

MEMORANDUM FOR THE PETITIONER

II. List of Authorities ………………

VIII. Prayer ……………………………………………….

2. IPC: Indian Penal Code

3. CRPC.: Criminal Procedure Code

4. HMA.: Hindu Marriage Act, 1955

5. CRMA.: Child Restraint Marriage Act, 1929

6. PCMA.: The Prohibition of Child Marriage Act, 2006

7. MA.: The Majority Act, 1875

8. GWA.: the Guardians and Wards Act, 1890

8. HMGA.: Hindu Minority and Guardianship Act,1956.

10. Hon’ble: Honorable

11. ch. : chapter

12. pg./p..: page

13. No.: Number

14. i.e.: That is

15. ors. : others

16. vs.: Versus

17. S.C.: Supreme Court

18. Para: Paragraph

19. A.I.R: All India Reporter

20. Supreme Court Cases

21. H.C.: High Court

 Indian Penal Code 1860

 Criminal Procedure Code

 Hindu Marriage Act, 1955

 Child Restraint Marriage Act, 1929

 The Prohibition of Child Marriage Act, 2006

 The Majority Act, 1875

 The Guardians and Wards Act, 1890

 Hindu Minority and Guardianship Act,1956.

 Ratanlal & Dhirajlal, The Indian Penal Code, 2009

 Prof. M P Jain, Indian Constitutional Law, 5th edition

 P M Bakshi, The Constitution of India, 10th Edn, 2010

 Justice B.P. Banerjee, Writ Remedies, 3rd Edition

S. No. Name of the Case Citation Pg. No.

1. Charanjit Lal Vs. Union of India AIR 1951 SC 41 21

2. Sundararajan Vs. Union of India, AIR 1970 Del 29 21

3. Bandhua Mukti Morcha vs. Union of AIR 1984 SC 802 21

4 Smt. Nahid Vs Mohd Islam, AIR 1989 All 161 21

5. Sadanandan Vs. Raghava AIR 1975 Ker 2 21

6. Kiran Singh Vs. Anand Pratap Singh AIR 1980 SC 1749 21

8. Yunusbhai Usmanbhai Shaikh Vs. Criminal Misc. 22

9. Neetu Singh v. State (1999) DLT 601 (DB) 23

10. Mrs Kalyani Chaudhary v. The State of 1978 CrLJ 1003 23

12 Ravi Kumar v. The State 124 (2005) DLT 1 (DB) 23

15 Shankerappa v/s. Sushilaba, AIR 1984 Karnataka 112 23

16. Santosh vs. State of Rajasthan 2004 (2) Crl.L.R. 1394 24

17. Mahendrabhai Shyamsunder vs State 2001 CriLJ 829 = (2000) 25

18. D. Ramaswami v. State of Tamil Nadu AIR 1982 SC 792 27

19. Surinder Kaur v. Harbax Singh AIR 1984 SC 1224 27

20. Ruchi Majoo v. Sanjeev Majoo (2011) 6 SCC 479 27

21. Elizabeth Dinshaw v. Arvand (1987) 1 SCC 42 28

22. Sumedha Nagpal v. State of Delhi (2000) 9 SCC 745 28

3. Thereafter, Ms. Rani’s father, Mr. Lakshman Singh lodged an First

lawful marriage. Additionally, FIR also contained some allegations

4. On 05.05.2010, a typed letter written and signed by Rani was

5. Thereafter, on 07.05.2010 Anil and Rani were arrested from Bilaspur