RAFFLES UNIVERSITY, NEEMRANA

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IN THE HON’BLE HIGH COURT OF DELHI

TEAM CODE:- 18RU11011

REPLY FOR THE 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 RESPONDENT

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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

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VII. Arguments
advanced………………………………………………..21

VIII. Prayer
………………………………………………………………..28

LIST OF ABBREVIATIONS

 S.: Section

 IPC: Indian Penal Code

 CRPC.: Criminal Procedure Code

 HMA.: Hindu Marriage Act, 1955

 CRMA.: Child Restraint Marriage Act, 1929

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

 MA.: The Majority Act, 1875

 GWA.: the Guardians and Wards Act, 1890

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

 FIR.: First Information Report

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 Hon’ble: Honorable

 ch.: chapter

 pg./p..: page

 ors. : others

 vs.: Versus

 S.C.: Supreme Court

 Para: Paragraph

 A.I.R: All India Reporter

 Supreme Court Cases

 H.C.: High Court

 &: and 20.A./ Art. : Article

 U/A. : under/ article

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.

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BOOKS REFERRED

 Justice P.S. Narayana, Law of Writs, 6th Edn, Asia Law House, 2010

 Ratanlal & Dhirajlal, The Indian Penal Code, 2009

 Justice V V Chandrachud , V R Manohar, The Indian Penal code, 30 th

Edition, (Reprinted 2006):

 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 Santosh vs. State of Rajasthan  2004 (2) Crl.L.R. 1394 23

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

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

U.P

4. Seema Devi alias Simaran Kaur v. State 1998 (2) Crime 168 23
of H.P

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

6 Manish Singh v. State Govt of NCT AIR 2006 Del 37 23

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7 Smt. Lila Gupta v/s. Laxmi Narain and AIR 1978 S.C. 1351 23
ors

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

9. Mahendrabhai Shyamsunder vs State 2001 CriLJ 829 = (2000) 4 23

Of Gujarat GLR 806

10. D. Ramaswami v. State of Tamil Nadu AIR 1982 SC 792 26

11. Surinder Kaur v. Harbax Singh AIR 1984 SC 1224 26

WEBSITES
i. www.manupatra.com
ii. www.indiankanoon.org
iii. www.indlaw.com

STATEMENT OF JURISDICTION

The Hon’ble High Court of Delhi does not have the requisite jurisdiction to
hear and decide on this matter under SECTION 374 of the Cr.PC which does
not guarantees the Right to Remedies to file the appeal before the Hon’ble
Court by appropriate proceedings still in the reply of petitioner’s jurisdiction,

The respondent 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

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High Court of Delhi. No other proceeding has been instituted on the same
issue in this or any other Court of law.

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.

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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 guadianship and committing rape under pretense of
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.

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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.

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

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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?
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;
 Whether decree of a lawful marriage should be made
in their favor of Appellant?
 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.

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SUMMARY OF ARGUMENTS

ISSUE 1: Whether Appellant is liable for the Kidnapping of

Rani from her lawful guardianship?

It is most respectfully submitted that the petitioner did induce and forcibly
kidnapped the minor girl. She, did not, out of her own, free will remained
with the petitioner or married the petitioner as per Hindu rites and
ceremonies. Further, the statement before the Magistrate under section 164
of Code of Criminal Procedure, 1973 is irrelevant since she is the minor girl
and she was kidnapped from the legal custody of the respondent father is
sufficient to prove that he committed the offence of kidnapping.

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.

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;

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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. Therefore, the alleged marriage as per Hindu Rites and customs in illegal
and not valid.

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 petitioner is charged with the grave offence of kidnapping the minor girl
from the legal custody of the Respondent-father and subsequently committed
rape on the person of the Miror girl. These offences were registered under
the crime no.123 of 2009 of the Gandhi Nagar Police Station and
subsequently FIR u/s 363 and 375 were duly lodged.

Since, the respondent father is the natural guardian of the minor girl and
therefore he does not have locus standi to file this present petition and seek a
Writ of habeas corpus for the custody of my child who was kidnapped and
raped by the petitioner-accused. Such a person of criminal character, could
not be allowed to invoke Article 21 of the Constitution of India2.

The minor girl has not left her home on her own and of her own free will.
But she was kidnapped by the petitioner-accused from her natural guardian,
i.e., father. Out of fear, she did not make statement before the Magistrate
under section 164 of Code of Criminal Procedure, 1973 3. This prove the
2
21. No person shall be deprived of his life or personal liberty except according to procedure established by law.
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

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case of kidnapping and insofar as the offence punishable under section 376
IPC4 is concerned, the present case does not falls under the any of the
exception to section 375 of IPC5 inasmuch as the minor girl is kidnapped and
subsequently raped by the Petitioner and she is above 14 years of age does
not alter the ground of the crime.

The ingredient of criminal intimidation is also present from the facts and
circumstances of the case.

(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:—
"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,

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ISSUE 3(1): Whether decree of a lawful marriage should be

made in their favor of Appellant?

The counsel most respectfully submits that the alleged marriage between
minors is illegal and invalid and therefore, the question of marriage being
voidable at the instances of any of the parties under Section 3 of the
Prohibition of Child marriage Act, 20066 does not arise.

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.
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.
6
3. Child marriages to be voidable at the option of contracting party being a child.—
(1) Every child marriage, whether solemnised before or after the commencement of this Act, shall be voidable at the
option of the contracting party who was a child at the time of the marriage:
Provided 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.

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ISSUE 3(2): Whether Rani’s custody be given to Appellant?

It is most respectfully submitted that the minor girl is illegally

kidnapped by the Petitioner and there is a greater risk to her life and safety
since the petitioner may kill her if she goes against him. Therefore in the
interest of justice and equity, the minor girl should be permitted to reside
with the Respondent father since he is the natural guardian and he and his
family will look after her with love and care.

Under Section 7 of the Guardians and Wards Act, 1890, the court has
power to make an order as to guardianship7.

Section 17 of the Guardians and Wards Act, 1890 specifies the matters
which need to be considered in appointing a guardian 8. Which, clearly

(2) If at the time of filing a petition, the petitioner is a minor, the petition may be filed through his or her guardian or
next friend along with the Child Marriage Prohibition Officer. (3) The petition under this section may be filed at any
time but before the child filing the petition completes two years of attaining majority.
(4) While granting a decree of nullity under this section, the district court shall make an order directing both the
parties to the marriage and their parents or their guardians to return to the other party, his or her parents or guardian,
as the case may be, the money, valuables, ornaments and other gifts received on the occasion of the marriage by
them from the other side, or an amount equal to the value of such valuables, ornaments, other gifts and money:

Provided that no order under this section shall be passed unless the concerned parties have been given notices to
appear before the district court and show cause why such order should not be passed.
7
"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.
8
"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
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

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indicates that the wishes of a minor need to be seriously considered by the

court where the minor is old enough and which is subject to incapacity of the
minor person who is claiming to be husband is ousted for being himself a
minor. Further, he is accused of series crimes such as kidnap, rape and
criminal intimidation should be considered in restoring the minor girl to the
Respondent Father and family. Sections 199 and 2110 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 Act11.

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.
9
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.
10
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.
11
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.

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It is also most respectfully submitted that section 13 of the 1956 Act 12 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 not only kidnapped
from lawful custody of the Respondent father and also raped by the
petitioner-accused. Her natural guardian is only her father. A person who is a
minor cannot be the guardian of another minor person.

12
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.

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ARGUMENTS ADVANCED

INTRODUCTION:

The counsel humbly submits before the Hon’ble High Court that Article 226
of the Constitution of India, guarantees the fundamental Right to
Constitutional Remedies that enables a person of character and integrity to
approach the Hon’ble High Court and File a writ petition whenever there is
an infringement of a person’s Fundamental Right.

Article 226 under the Right to Constitutional Remedies bestows on the High
court, the jurisdictional power to issue writs including habeas corpus.

In the present case, the minor girl was kidnapped by the petitioner and
subsequently raped is disentitles any iota of compassion or sympathy from
this Hon’ble Court. Further, a person accused of series crimes such as
kidnap, rape and criminal intimidation should not be allowed to approach
this Hon’ble Court to invoke the jurisdiction of this Hon’ble Court under
Article 226 of the Constitution of India.

Therefore, this present petition of the Petitioner-accused has not no locus

standi and enforceable legal right to request this Hon’ble Court to direct

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the Respondent Father to produce the minor child.

Further, The Respondent Father is the natural guardian, and Also, the
petitioner has no legal rights on the premise of husband when he is
accuded of committing series crimes such as rape and kidnap to seek the
custody of minor girl.

The counsel pleads before the Hon’ble High Court to concentrate on the fact
that the Respondent father is natural guardian of the Minor girl and she was
kidnapped, raped and criminally intimidated by the petitioner.

ISSUE 1: Whether Appellant is liable for the Kidnapping of

Rani from her lawful guardianship?
It is most respectfully submitted that the petitioner did induce and/or
forcibly kidnapped the minor girl without the consent of her father, and
allegation of married the Minor girl to the petitioner-accused is false and
even assuming the marriage took place, it is out of intimidation and not of
free will or consent. The facts leading to the kidnapping and discovery of
the minor girl with the petitioner-accused clearly establishes that the
petitioner did 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 marriage.

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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. If thse twin conditions are not satisfied, the said
marriage is nullity and is, ipso facto, invalid or void.

In this regard, the counsel pleads before the Hon’ble Court that the marriage
of the petitioner with the minor girl is invalid and illegal.

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 out of fear and safety to her life and her family members
from the petitioner-accused, has failed to clearly state that true facts before
the Magistrate under section 164 of Code of Criminal Procedure, 1973.
The facts that the disappearance and discovery of the minor girl with the
petitioner-accused proves beyond reasonable doubt that the petitioner
did kidnap her and liable for the offence of kidnapping and insofar as the
offence punishable under section 376 IPC is concerned, the present case does
not fall under the exception to section 375 inasmuch as the Minor girl is not
the Petitioner’s wife and the fact that 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 sustainable at the outset for the
above same reason.

ISSUE 3(1): Whether decree of a lawful marriage should be

made in their favor of Appellant?

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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.
When, the question of kidnap and rape is still pending and the question of
valid marriage not proved and therefore, the question of annulling the
marriage do not arise at this juncture. .

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];

ISSUE 3(2): Whether Rani’s custody be given to Appellant?

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It is most respectfully submitted that the Minor girl is at present

living happily with the Respondent father and his family. The Respondent
father and his family taking great care to look after their minor child with
love and affection.

Also, it is must humbly submitted that it was also in her best interest
that she live with the Respondent father being the natural guardian and not
with the petitioner-accused since he is also a minor and incapable of looking
after another minor person.

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. A person
who is male under 21 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 21
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.

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

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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.

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.

From the analysis above, it could be seen that the natural guardian of a minor
Hindu girl whose is allegedly married by the petitioner-accused, is only her
father. Also, it be seen that no minor can be the guardian of the person of
another minor.

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
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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;  

PRAYER

Wherefore, in the light of the questions raised, arguments advanced and

authorities cited, it is most humbly prayed and implored, before this

Hon’ble High Court Of Delhi, that it may be pleased to hold, adjudge

declare and

(i)Pass such an order so that the natural guardianship of the Respondent

father is not ousted or infringed by the Petitioner if so, the atrocities on the

women and female children will not be stopped.

Also,

(ii) Pass an order so that the petitioner-accused is punished u/s. 363 and

375 of IPC on the basis of facts and circumstances of the case

And

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(iii).Pass an order or further orders as the Hon’ble Court may deem fit and

proper in the facts and circumstances of the case and in the interest of

equity, justice and good conscience.

All of which is most

respectfully submitted.
submitted.

Counsel No._18RU11011_

(Counsel for the

Respondent)

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