Defendant

TEAM CODE:

I N

T H E

F A M I L Y

H O N ’ B L E

C O U R T ,

G U N T U R

PROCEEDINGS UNDER THE HINDU MARRIAGE ACT, 1955 IN THE MATTER OF

MOHAN

_____________Plaintiff

v

FATIMA

____________Defendant

WRITTEN SUBMISSIONS ON BEHALF OF THE DEFENDANT

Most Respectfully Submitted to the Hon’ble Family Court of Guntur

32ND ALL INDIA INTER-UNIVERSITY NATIONAL MOOT COURT COMPETITION, 2016 PRESIDENCY UNIVERSITY, BANGALORE

32ND ALL INDIA INTER-UNIVERSITY MOOT COURT COMPETITION-2016 TABLE OF CONTENTS

TABLE OF CONTENTS

INDEX OF ABBREVIATIONS

II

INDEX OF AUTHORITIES

III

STATEMENT OF JURISDICTION

VI

STATEMENT OF FACTS

VII

QUESTIONS PRESENTED

VIII

SUMMARY OF ARGUMENTS

IX

PLEADINGS AND AUTHORITIES I.

1

WHETHER MOHAN’S CONVERSION TO HINDUISM IS VALID?

1

[A]CONVERSION WAS NOT WITH BONAFIDE INTENTION [B]CONVERSION WAS UNDER UNDUE INFLUENCE OF MOHAN II. WHETHER FATIMA’S CONVERSION TO HINDUISM IS VALID?

2

III. WHETHER THE HINDU FORM OF MARRIAGE IS VALID?

4

[A]APPLICABILITY OF HINDU MARRIAGE ACT, 1955 IV. WHETHER MUSLIM FORM OF MARRIAGE IS VALID? V. WHETHER RESTITUTION OF CONJUGAL RIGHTS SHALL BE GRANTED TO MOHAN?

5 5

[A]NO VALID MARRIAGE PRAYER

MEMORANDUM for THE DEFENDANT

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32ND ALL INDIA INTER-UNIVERSITY MOOT COURT COMPETITION 2016 INDEX OF ABBREVIATION

INDEX OF ABBREVIATION

&

And

AIR

All India Reporter

All

Allahabad

All LR

Allahabad Law Report

Art

Article

Bom

Bombay

BomCR

Bombay Cases Reporter

Cal

Calcutta

Ch

Chandigarh

Guj

Gujarat

HC

High Court

HLR

Himachal Law Report

HP

Himachal Pradesh

Karn

Karnataka

Mad

Madras

MP

Madhya Pradesh

Ori

Orissa

P.L.R.

Patna Law Report

Pat

Patna

Raj

Rajasthan

SC

Supreme Court

SCC

Supreme Court Cases

Sec

Section

MEMORANDUM for THE DEFENDANT

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32ND ALL INDIA INTER-UNIVERSITY MOOT COURT COMPETITION 2016 INDEX OF AUTHORITIES

INDEX OF AUTHORITIES

CASES REFERRED:1. Abdur Rahim Undre v Padma Abdur Rahim Undre, AIR 1982 Bom 341. 2. Annanthai v Murugaiah, AIR 2000 Mad 356. 3. Asfaq Qureshi v Aysha Qureshi, AIR 2010 Chh 58. 4. Bai Jamuna v Dayalji, (1920) 22 Bom LR 241. 5. Binita bag v Tapas Bag, AIR 2009 Cal 267. 6. Bitto v Ramdev, AIR 1983 All 371. 7. C.M. Arumugam v S. Rajgopal, AIR 1976 SC 939. 8. ChitralekhaKunju v ShibaKunju, 1998 (1) BomCR 710. 9. Evangelical Fellowship v State of HP, 2013 (4) RCR(Civil) 283. 10. Gullipilli Raj v Bandaru Pavani, AIR 2009 SC 1085. 11. Hasina Bano v Alam Noor, AIR 2007 Raj. 49. 12. Inder Yash v Manjeet Kaur, 1980 HLR 251. 13. Jacintha Kamath v. K. Padmanabha Kamath, AIR 1992 Karn. 372. 14. K.P. Manu v Chairman, Scrutiny Committee for Verification of Community Certificate, AIR 2015 SC 1402. 15. Kailash Sonkar v Maya Devi, (1984) 2 SCC 91. 16. Khurshid Bibi v Mohd Amin P.L.D. 1967 SC 97. 17. Kiran Devi v Batul Kumar Verma, AIR 2011 Pat 26. 18. Laxman Singh v Keshan Bai, AIR 1996 MP 166. 19. Lily Thomas v Union of India, (2000) 6 SCC 224. 20. Margaret Palai v SavitriPalai, AIR 2010 Ori 45. 21. Most Ranjani Hembrom v Merry Murmu, AIR 2010 (NOC) 903 (Jhar). 22. Neera v Krishna Swarup, AIR 1975 All 337. 23. Nilesh Narain v Kashmira Banker, AIR 2010 Guj 3. 24. Noor Jahan Begum v State of Uttar Pradesh, 2015 (1) ADJ 755. 25. Parbai Ram v Thopli, AIR 1996 HP 20. 26. Principal, Guntur Medical College, Guntur v Mohan Rao, AIR 1976 SC 1904. 27. Rakheya Bibi v Anil Kumar, AIR 1948 Cal 119. 28. Ranjana Kejriwal v Vinod Kejriwal, AIR 1997 Bom 380. 29. Ratilal Panchand v State of Bombay, AIR 1954 SC 388.

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32ND ALL INDIA INTER-UNIVERSITY MOOT COURT COMPETITION 2016 INDEX OF AUTHORITIES

30. Ravinder Kumar v Kamal Kanta, (1976) 78 Pun LR 580. 31. Sangam Singh v Inder Singh, (1984) 10 All LR 83. 32. Sanjeev Kumar v Priti Kumari, AIR 2011 Jhar 1. 33. Sapna Jacob v The State of Kerala, AIR 1993 Kerala 75. 34. Satya Sundar v MamataTripathi, 2007 II OLR 668. 35. Skinner v Skinner, (1897) ILR 25 Cal 537. 36. Stainislaus v State of MP, AIR 1977 SC 908. 37. Sushil Kumar v Prem Kumar, AIR 1976 Del 321.

BOOKS REFERRED:1. Mulla, Hindu Law (21st Ed., 2010), LexisNexis. 2. Mulla, Principles of Mohammedan Law (20th Ed., 2015), LexisNexis. 3. Paras Diwan, Family Law (9th Ed., 2010), Allahabad Law Agency. 4. Halsbury’s Laws of India Vol 19th , Family Law-I(2nd Ed., 2014), LexisNexis 5. Kusum, Family Law-I (3rd Ed., 2013), LexisNexis 6. Mayne, Hindu Law and Usage (16th edition 2010), Bharat Law House, New Delhi. 7. Myneni, Muslim Law (Family Law II) (1nd edition 2010), Asia Law House. 8. Rashid, sayed Khalid, Muslim Law (5th edition 2009), Eastern Book Company. 9. Mahmood Tahir, Principles of Hindu Law (2014 edition), Universal Law Publishing.

STATUES REFERRED:1. Dissolution of Muslim Marriage Act, 1939. 2. Family Courts Act 1984. 3. Hindu Marriage Act, 1955. 4. The Constitution of India, 1950.

CONVENTIONS REFERRED:1. Universal Declaration of Human Rights, 1948. 2. International Covenant on Civil and Political Rights, 1966.

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32ND ALL INDIA INTER-UNIVERSITY MOOT COURT COMPETITION 2016 INDEX OF AUTHORITIES

DATABASES REFERRED:1. http://www.scconline.com (last visited on 24th February, 2016). 2. http://www.westlaw.org (last visited on 29th February, 2016). 3. http://www.maupatra.com (last visited on 27th February, 2016). 4. http://www.lexisnexis.com (last visited on 26th February, 2016).

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32ND ALL INDIA INTER-UNIVERSITY MOOT COURT COMPETITION 2016 STATEMENT OF JURISDICTION

STATEMENT OF JURISDICTION

THE COUNSELS REPRESENTING THE DEFENDANT HAVE ENDORSED THEIR PLEADINGS BEFORE THE HON’BLE FAMILY COURT, GUNTUR UNDER SECTION 7 OF THE FAMILY COURTS ACT, 1984 IN WHICH THE HON’BLE COURT HAS THE JURISDICTION

SECTION 7 OF THE FAMILY COURTS ACT “JURISDICTION: (1) SUBJECT TO THE OTHER PROVISIONS OF THIS ACT, A FAMILY COURT SHALL (A) HAVE AND EXERCISE ALL THE JURISDICTION EXERCISABLE BY ANY DISTRICT COURT OR ANY SUBORDINATE CIVIL COURT UNDER ANY LAW FOR THE TIME BEING IN FORCE IN RESPECT OF SUITS AND PROCEEDINGS OF THE NATURE REFERRED TO IN THE EXPLANATION; AND (B) BE DEEMED, FOR THE PURPOSE OF EXERCISING SUCH JURISDICTION UNDER SUCH LAW, TO BE A DISTRICT COURT OR, AS THE CASE MAY BE SUCH SUBORDINATE CIVIL COURT FOR THE AREA TO WHICH THE JURISDICTION OF THE FAMILY COURT EXTENDS. EXPLANATION- THE SUITS AND PROCEEDINGS REFERRED TO IN THIS SUBSECTION ARE SUITS AND PROCEEDINGS OF THE FOLLOWING NATURE, NAMELY: (A) A SUIT OR PROCEEDING BETWEEN THE PARTIES TO A MARRIAGE FOR DECREE OF A NULLITY MARRIAGE (DECLARING THE MARRIAGE TO BE NULL AND VOID OR, AS THE CASE MAY BE, ANNULLING THE MARRIAGE) OR RESTITUTION OF CONJUGAL RIGHTS OR JUDICIAL SEPARATION OR DISSOLUTION OF MARRIAGE;”

THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTION AND ARGUMENTS

MEMORANDUM for THE DEFENDANT

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32ND ALL INDIA INTER-UNIVERSITY MOOT COURT COMPETITION 2016 STATEMENT OF FACTS

STATEMENT OF FACTS

For the sake of brevity and convenience of the Hon’ble court the facts of the present case are summarized as follows: 1. Mohan is born as the fourth child in a family which consists of his father Raju alias Rahmatullah Khan, his mother Renuka alias Ria Khan and three elder sisters Shanti, Srikala and Sinhdu. His parents were Hindus by birth. They belong to Madiga cast, a lower caste. Due to discrimination, after marriage his father decided to convert to Islam as he did not want his children to suffer any discrimination in the society 2. Mohan spent most of the time with his maternal grandparent. He enjoyed going to both prayer in the Mosque with his father and going to temple with his grandparents. 3. He wanted to become a doctor and applied for a seat in Guntur medical college. In the state of Andhra Pradesh, for admission to medical college, converts to other religions from Hinduism are treated as backward class. So he applied and he described himself as a member of a backward class. But he did not get admission. 4. Then on the advice of his grandfather he got himself converted to Hinduism by Suddhi ceremony. He got admission, on the basis member of a Scheduled Caste. 5. When he was in his 5th year he met with Fatima (17 year old), 1st year student. They were childhood friends. They fell in love. In a causal talk Mohan disclosed to her about his conversion to Hinduism. Fatima feared that her father may not accept the marriage. She told Mohan that her father is looking for her alliance, he insisted to get married soon. she agreed under emotional threat and pressure 6. He made Fatima to undergo Suddhi ceremony and changed her name as Meera, then married her, in a temple in Guntur, according to Hindu ceremonies and rituals. After that they also married under Muslim form and a Qazi so that her father accepts their marriage. 7. Fatima confessed everything to her father. Her father convinced her that she should come out of relationship with Mohan. He is not trustworthy person and suitable for her as He has changed his religion just to get admission in college and He made her to convert for marriage. Fatima got migration and she stopped all her contacts with Mohan. 8. Mohan filed for restitution of conjugal rights under the Sec 9 of the Hindu Marriage Act, 1955 in the Family Court of Guntur, Andhra Pradesh.

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32ND ALL INDIA INTER-UNIVERSITY MOOT COURT COMPETITION 2016 QUESTIONS PRESENTED

QUESTIONS PRESENTED

The following questions are presented before this Hon’ble Court for adjudication in the instant matter: I.

WHETHER MOHAN’S CONVERSION TO HINDUISM IS VALID?

II.

WHETHER FATIMA’S CONVERSION TO HINDUISM IS VALID?

III.

WHETHER THE HINDU FORM OF MARRIAGE IS VALID?

IV.

WHETHER MUSLIM FORM OF MARRIAGE IS VALID?

V.

WHETHER RESTITUTION OF CONJUGAL RIGHTS SHALL BE GRANTED TO MOHAN?

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32ND ALL INDIA INTER-UNIVERSITY MOOT COURT COMPETITION 2016 SUMMARY OF ARGUMENTS

SUMMARY OF ARGUMENTS

I.

MOHAN’S CONVERSION TO HINDUISM IS VALID

It is humbly submitted before the Hon’ble court that the conversion of Mohan to Hinduism is valid because he has freedom to profess and practice religion of his choice in the Constitution respectively. Secondly he has been accepted by the society after conversion and he got the admission and no one has opposed his conversion.

II.

FATIMA’S CONVERSION TO HINDUISM IS INVALID

It is submitted before the Hon’ble court that the conversion of Fatima to Hinduism is not valid because her conversion was not bonafide and it was due to the influence and pressure exerted by Mohan that she converted to Hinduism out of her own will. Conversion is valid when the person has change of belief and not due to force or pressure.

III. THE HINDU FORM OF MARRIAGE IS INVALID It is humbly submitted before this Hon’ble Court that the marriage solemnized between Mohan and Fatima is invalid as per the Hindu Marriage Act, 1955 because HMA, 1955 governs only those marriages which are solemnized between Hindu’s only and not of any other religion. Mohan is Hindu and Fatima is Muslim so Hindu marriage is not valid.

IV.

MUSLIM FORM OF MARRIAGE IS INVALID

It is humbly submitted before this Hon’ble Court that the Muslim form of marriage is not valid as a marriage prohibited by reason of difference of religion is an irregular marriage (fasid) i.e. invalid. The essential requirements for a valid Muslim marriage are capacity to contract marriage, proposal and acceptance, and both have to be Muslim.

V.

RESTITUTION OF CONJUGAL RIGHTS WILL BE GRANTED TO MOHAN?

It is humbly submitted before this Hon’ble Court that in the instant case restitution of conjugal rights under the Hindu Marriage Act, 1955 will not be given to Mohan because of the invalidity of the Hindu Marriage. When marriage is invalid there is no right of consortium with Mohan.

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32ND ALL INDIA INTER-UNIVERSITY MOOT COURT COMPETITION 2016 PLEADINGS AND AUTHORITIES

PLEADINGS AND AUTHORITIES

I. MOHAN’S CONVERSION TO HINDUISM IS VALID 1. It is humbly submitted before the Hon’ble court that the conversion of Mohan to Hinduism is valid because he exercised his right to profess and practice religion of his choice guaranteed under the Fundamental rights1 in the Constitution respectively. 2. Every person has a fundamental right under our Constitution not merely to entertain such religious belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such overt acts as are enjoined or sanctioned by his religion.2 3. It is pertinent to mention that Art.183 of the Universal Declaration of Human Rights specifically lays down that the freedom of conscience and religion includes freedom to change the religion or belief. The essence of the freedom of conscience is that it is a personal matter of the individual’s own choice, that freedom would be impaired if in the formation of that choice or change thereof, the free exercise of the individual’s will is dominated or influenced by other person.4 4. In Principal, Guntur Medical College, Guntur v Mohan Rao5 the court has held that if there is reconversion to the original religion to which the parents and ancestors belonged to; and there is acceptance by the community then the person will be deemed to be of the original caste which has been reiterated in Arumugam6. Also in Kailash Sonkar v. Maya Devi7, which stated that in case of a conversion, the original caste simply gets eclipsed, this resurfaces when a person re-converts to the original religion. 5. In Manu8 it has been held that two things that need to be established by person who claims to reconvert are firstly there has been reconversion to original religion to which the parents and earlier generations had belonged, and lastly there has to be acceptance by community.

1

Art 25, The Constitution of India. Ratilal Panchand v State of Bombay, AIR 1954 SC 388. 3 Art 18, Universal Declaration of Human Rights: Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. 4 Art. 18(2), International Covenant on Civil and Political Rights: No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 5 AIR 1976 SC 1904. 6 C.M. Arumugam v S. Rajgopal, AIR 1976 SC 939. 7 (1984) 2 SCC 91. 8 K.P. Manu v Chairman, Scrutiny Committee for Verification of Community Certificate, AIR 2015 SC 1402. 2

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32ND ALL INDIA INTER-UNIVERSITY MOOT COURT COMPETITION 2016 PLEADINGS AND AUTHORITIES

6. In the instant case also Mohan reconverted his religion and has been given admission in the college under the reserved quota for madiga castes claiming to be a member of Schedule caste. He has been professing Hinduism for over 5 years and no one opposed his reconversion that implies that he has been accepted as a member of madiga caste. II. FATIMA’S CONVERSION TO HINDUISM IS INVALID 7. It is submitted before the Hon’ble court that the conversion of Fatima to Hinduism is not valid because her conversion was not bonafide and it was due to the influence and pressure exerted by Mohan that she converted to Hinduism out of her own will. [A]CONVERSION WAS NOT WITH BONAFIDE INTENTION 8. In order to find the genuine intention of an individual, Balakrishnan, J. in Sapna Jacob v The State of Kerala9 observed that the court can find the true intention of men lying behind their acts and can certainly from the circumstances of a whether a pretended conversion was really a means to some further end. It was also laid down that a bona fide intention to be converted to the Hindu faith accompanied by conduct or unequivocally expressing that intention. Moreover, in Rakheya Bibi v Anil Kumar10, the Calcutta High Court observed that it is open to the Court to go into the question whether the conversion was a bona fide one or a mere pretence. 9. In order to find the genuine intention of an individual, Balakrishnan, J. in Sapna Jacob v The State of Kerala11 observed that the court can find the true intention of men lying behind their acts and can certainly from the circumstances of a whether a pretended conversion was really a means to some further end. It was also laid down that a bona fide intention to be converted to the Hindu faith accompanied by conduct or unequivocally expressing that intention. Moreover, in Rakheya Bibi v Anil Kumar12, the Calcutta High Court observed that it is open to the Court to go into the question whether the conversion was a bona fide one or a mere pretence. In Skinner v. Skinner13, the Privy Council, while referring to the possibility that a change of religion on the part of both the spouses might have the effect of altering rights incidental to the marriage, was careful to add the qualification that such change must be made honestly and without any intent to commit a fraud upon the law. 9

AIR 1993 Kerala 75. AIR 1948 Cal 119. 11 AIR 1993 Kerala 75. 12 AIR 1948 Cal 119. 13 (1897) ILR 25 Cal 537. 10

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32ND ALL INDIA INTER-UNIVERSITY MOOT COURT COMPETITION 2016 PLEADINGS AND AUTHORITIES

[B]CONVERSION WAS UNDER UNDUE INFLUENCE OF MOHAN 10. In words of Keshwani, J.,14 conversion to another religion basically requires change of faith and belief of personal relations of a major individual of sound mind by his free will what he/she regards as Cosmos, his/her Maker or Creator, which he /she believes, regulates the existence of insentient beings and forces of Universe. He further added that the terms religion, faith or devotion are not easily interchangeable. If a person feigns to have adopted another religion just for worldly gain or benefit, it would be religious bigotry.15 Moreover, if a conversion is not inspired by religious feeling and undergone for its own sake, but is resorted to merely with the object of creating a ground for some claim of right, a court of law cannot recognize it as a good basis for such claim but must held that no lawful foundation of the claim has been proved.16 11. The Apex Court in Stainislaus17 held that there is no fundamental right to convert another person religion to one’s own religion because if a person purposely undertakes the conversion of another person to his own religion as distinguished from his efforts to transmit or spread the tenets of his religion, that would impinge on the freedom of conscience guaranteed to all the citizens of the country. Conversion to another religion basically requires change of faith.18 12. The Apex Court has observed in Lily Thomas v Union of India19 that freedom guaranteed under Art. 25 of the Constitution is such freedom which does not encroach upon a similar freedom of the other person. In the case of Evangelical Fellowship v State Of HP20 it was held that a person will not change his religion overnight, except in case of forced conversions or conversions which took place due to payment of cash or other material gifts. 13. In the present case, Fatima was neither interested in conversion nor she was having faith in any other religion. It was due to the fraud and emotional threat of Mohan that she converted irrespective of her own will for the same. She wanted to marry with Mohan but it was with the blessing of her parents. Mohan knew that her father will not be ready for their marriage because he was well aware of the fact that her father disconnected his

14

Noor Jahan Begum v State of Uttar Pradesh, 2015 (1) ADJ 755. Ibid at Para 42; Lily Thomas v Union of India, (2000) 6 SCC 224. 16 Rakeya Bibi v Anil Kumar Mukherjee, AIR 1948 Cal 119 17 Stainislaus v State of MP, AIR 1977 SC 908. 18 Abdur Rahim Undre v Padma Abdur Rahim Undre, AIR 1982 Bom 341. 19 (2000) 6 SCC 224. 20 2013 (4) RCR (Civil) 283. 15

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relationship with his only brother who married a Hindu woman due to which Mohan opted for this way out of his ill-will to marry her. Therefore, conversion of Fatima to Hinduism is not valid because it was not under her free will and she also had no faith in any other religion.

III. THE HINDU FORM OF MARRIAGE IS INVALID 14. It is humbly submitted before this Hon’ble Court that the marriage solemnized between Mohan and Fatima is invalid as per the Hindu Marriage Act, 1955 because HMA, 1955 governs only those marriages which are solemnized between Hindu’s only and not of any other religion. [A] APPLICABILITY OF HINDU MARRIAGE ACT, 1955 15. Section 221 of HMA, 1955 clearly lays down that this act applies to any person who is a Hindu and not to any other person such as Muslim, Christian, Parsi or Jew by religion. Also, the primary condition which is to be fulfilled for solemnization of Hindu marriage between two persons is that they both should be Hindus as stipulated by Sec 5.22 16. The Concept of Hindu marriage under the Act is still a sacrament as envisaged under the Hindu Law. A marriage may be solemnized between any two Hindus23 and in addition to this must satisfy the condition as laid down in Sec 524 and should be solemnized as specified in Sec. 7.25 Hence, Hindu form of marriage is invalid because both the persons are not Hindus which is a condition precedent for solemnization of marriage under Hindu Law. 17. Therefore, to conclude it can be said that any person who has Faith in Hindu religion and who practices or professes it, is a Hindu. As Fatima doesn’t fill any of the conditions to be a Hindu due to which Hindu law will not be applicable on her.

21

Sec 2, Hindu Marriage Act Application of Act. Jacintha Kamath v. K. Padmanabha Kamath, AIR 1992 Karn. 372. 23 Nilesh Narain v Kashmira Banker, AIR 2010 Guj 3; Margaret Palai v Savitri Palai, AIR 2010 Ori 45; Most Ranjani Hembrom v Merry Murmu, AIR 2010 (NOC) 903 (Jhar); Asfaq Qureshi v Aysha Qureshi, AIR 2010 Chh 58; Gullipilli Raj v Bandaru Pavani, AIR 2009 SC 1085. 24 Sec 5 of Hindu Marriage Act, 1955 Conditions for a Hindu marriage. 25 Sec 7, Hindu Marriage Act, 1955 Ceremonies for a Hindu marriage. 22

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32ND ALL INDIA INTER-UNIVERSITY MOOT COURT COMPETITION 2016 PLEADINGS AND AUTHORITIES

IV. MUSLIM FORM OF MARRIAGE IS INVALID 18. It is humbly submitted before the Hon’ble court that the marriage under Mahomedan law is not valid on the account of grounds described below:19. Marriage or nikah, according to Muslim law, is defined to be a contract26 which has for its object the procreation and legalizing of children. The essential requirements for a valid Muslim marriage are capacity to contract marriage, proposal and acceptance, and absence of any impediment to the marriage. Every Muslim who is of sound mind and who has attained puberty has the capacity to marry. A marriage prohibited by reason of difference of religion is an irregular marriage (fasid) i.e. invalid.

V. RESTITUTION OF CONJUGAL RIGHTS WILL NOT BE GRANTED TO MOHAN 20. It is humbly submitted before this Hon’ble Court that in the instant case restitution of conjugal rights under the Hindu Marriage Act, 1955 will not be given to Mohan because of the invalidity of the Hindu Marriage. Where either party to a marriage withdraws from the society of the other without reasonable excuse, the aggrieved party may petition for restitution of conjugal rights27 and the family court28 will grant the relief if there is no legal bar to such decree.29 [A] NO VALID MARRIAGE 21. Relief for restitution of conjugal rights may be availed only by a legally married husband and wife.30 Where the parties are not legally married or the marriage is not subsisting at the time of the filing of the petition, the question of granting a decree of restitution of conjugal rights does not arise.31 Thus, where one of the parties to the marriage was not a Hindu it was held that the marriage was not a valid under Section 5 of the Hindu Marriage Act, 1955 and hence no relief by way of restitution could be sought.32

26

Khurshid Bibi v Mohd Amin, P.L.D. 1967 S.C. 97; Hasina Bano v Alam Noor, AIR 2007 Raj 49. Neera v Krishna Swarup, AIR 1975 All 337; Sushil Kumar v Prem Kumar, AIR 1976 Del 321; Sangam Singh v Inder Singh, (1984) 10 All LR 83; Bitto v Ram deo, AIR 1983 All 371; Bai Jamuna v Dayalji, (1920) 22 Bom LR 241. 28 Family Courts Act 1984 s 7(1) Explanation(a): Wherever a family court has been established the family court has exclusive jurisdiction to entertain applications which were previously exercisable by a district court. 29 Sanjeev Nayan Kumarv Priti Kumari, AIR 2011 Jhar 1; Kiran Devi v Batul Kumar Verma, AIR 2011 Pat 26; Binita Bag v Tapas Bag, AIR 2009 Cal 267; Satya Sundar v Mamata Tripathi, 2007 II OLR 668 30 Sanjeev Kumar v Priti Kumari, AIR 2011 Jhar 1; Annanthai v Murugaiah, AIR 2000 Mad 356; Ranjana Kejriwal v Vinod Kejriwal, AIR 1997 Bom 380. 31 Ravinder Kumar v Kamal Kanta, (1976) 78 Pun LR 580; Inder Yash v Manjeet Kaur, 1980 HLR 251; Parbai Ram v Thopli, AIR 1996 HP 20. 32 Chitralekha Kunju v Shiba Kunju, 1998 (1) BomCR 710. 27

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22. Also, In a suit for restitution of conjugal rights if the existence of marriage is disputed, it is for the petitioner to prove that there was a valid marriage and where the petitioner could not substantiate or prove a valid marriage in light of complete denial of a marriage ever taken place, no petition for restitution of conjugal rights can be entertained by the court.33 When the marriage is not one under the Hindu Marriage Act, Sec 934 of the act, has no application.35 23. Therefore, as there was no valid marriage between Mohan and Fatima due to which the decree of restitution should not be granted to Mohan as it is an essential ingredient for the restitution of conjugal rights.

33

Laxman Singh v Keshan Bai, AIR 1996 MP 166. Sec 9, Hindu Marriage Act, 1955 Restitution of conjugal rights 35 Supra Note 30. 34

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32ND ALL INDIA INTER-UNIVERSITY MOOT COURT COMPETITION 2016 PRAYER

PRAYER

Wherefore, in light of the facts stated, issues raised, authorities cited and arguments advanced, Hon’ble Family Court of Guntur may be pleased to adjudge & declare that: 1. Mohan’s Conversion to Hinduism is valid. 2. Fatima’s Conversion to Hinduism is invalid 3. The Hindu form of Marriage is invalid. 4. The Muslim form of Marriage is invalid. 5. Restitution Of Conjugal Rights shall not be granted to Mohan AND Pass any other order that it may deem fit in the interest of justice, equity & good conscience. For this act of kindness, the Defendant shall duty bound forever pray.

On behalf of FATIMA Counsels for the Defendant Sd/

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