Plaintiff

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

32NDALL 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 PLEADINGS AND AUTHORITIES I. WHETHER MOHAN’S CONVERSION TO HINDUISM IS VALID?

IX 1 1

[A]UDHR PRINCIPLE [B]FREEDOM TO PROFESS AND PRACTICE RELIGION OF ONE’S CHOICE II. WHETHER FATIMA’S CONVERSION TO HINDUISM IS VALID?

2

III. WHETHER THE HINDU FORM OF MARRIAGE IS VALID?

3

[A]HMA, 1955 IV. WHETHER MUSLIM FORM OF MARRIAGE IS VALID?

3

V.

4

WHETHER RESTITUTION OF CONJUGAL RIGHTS SHALL BE GRANTED TO MOHAN?

[A]WITHDRAWAL OF RESPONDENT WITHOUT ANY REASONABLE EXCUSE [B]THE COURT IS SATISFIED ABOUT THE TRUTH OF THE STATEMENT MADE IN THE PETITION [C]NO LEGAL GROUND EXISTS FOR REFUSING THE DECREE PRAYER

MEMORANDUM for THE PLAINTIFF

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

INDEX OF ABBREVIATIONS

Air

All India Reporter

All

Allahabad

All ER

All England Law Reports

All LR

Allahabad Law Reports

Arts

Article

Bom LR

Bombay Law Report

Cal

Calcutta

Ch LR

Chandigarh Law Reporter

Civ LJ

Civil Law Report

DB

District Bench

Del

Delhi

DMC

Divorce & Matrimonial Cases

Guj

Gujarat

HC

High Court

HLR

Himachal Law Reporter

HMA

Hindu Marriage Act

Jhar

Jharkhand

Mad

Madras

Ori

Orissa

P.L.J

Patna Law Journal

Pat

Patna

Raj.

Rajasthan

SC

Supreme Court

Sec

Section

MEMORANDUM for THE PLANTIFF

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

INDEX OF AUTHORITIES

CASES REFERRED:1. Anna Saheb v Tarabai, AIR 1970 MP 36. 2. Asfaq Qureshi v Aysha Qureshi, AIR 2010 Chh 58. 3. Atmaram v Narbada, 1980 Raj 35. 4. Bai Jamuna v Dayalji, (1920) 22 Bom LR 241. 5. Binita bag v Tapas Bag, AIR 2009 Cal 267. 6. Bitto v Ram Deo, AIR 1983 All 371. 7. De Laubenque v De Laubenque, (1899) P 42. 8. Fassbender v Fassbender, (1938) 3 All ER 389. 9. Gullipilli Raj v Bandaru Pavani, AIR 2009 SC 1085. 10. Harendra Nath v Suprova, AIR 1989 Cal 120. 11. Harvinder Kaur v Harminder Singh Choudhary, AIR 1984 Del 66. 12. Hasina Bano v Alam Noor AIR 2007 Raj. 49. 13. Inder Yash v Manjeet kaur, (1980) HLR 251. 14. Ishan v Panna Lal (1928) 7 Pat. 6. 15. Jiva Magan v Bai Jethi, AIR 1941 Bom 535. 16. Kailash Wati v Ajodhia Parkash, 1971 CLJ 109 (P & H). 17. Khurshid Bibi v Mohd Amin P.L.D. 1967, S.C. 97. 18. Kiran Devi v Batul Kumar Verma, AIR 2011 Pat 26. 19. Manju Mehra v Kamal Mehra, AIR 2010 Bom 35. 20. Margaret Palai v Savitri Palai, AIR 2010 Ori 45. 21. Most Ranjani v Merry Murmu, AIR 2010 (NOC) 903 (Jhar). 22. Naba Katari v Kalyani Katari, 2009 Indlaw CAL 414 23. Neera v Krishna Swarup, AIR 1975 All 337. 24. Nilesh Narain v Kashmira Banker, AIR 2010 Guj 3. 25. Phoola Devi v State, 2005 VIII AD Delhi 256. 26. Rabindra Prasad v Sita Devi, AIR 1986 Pat 128. 27. Ratilal Panchand v State of Bombay, AIR 1954 SC 388. 28. Ravi Kumar v State, 2005 (1) DLT 124. 29. Sangam Singh v Inder Singh, (1984) 10 All LR 83. 30. Sanjeev Nayan Kumar v Priti Kumari, AIR 2011 Jhar 1.

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

31. Sapna v Neetu BalChand, AIR (NOC 2960) (Utr). 32. Saroj Rani v Sudarshan, AIR 1984 SC 1562 33. Sarvesh Mohan Saxena v Sanju Saxena 2009 (2) DMC 665. 34. Satya Sundar v MamataTripathi, 2007 II OLR 668 35. Satya v Ajaib, AIR 1973 Raj 20 36. Seema Halwai v Omprakash Halwai, AIR 2007 (NOC) 2518(MP). 37. Shyamlal v Saraswati, AIR 1967 MP 204 38. Sukram v Mishri Bai, AIR 1979 MP 144. 39. Sushil Kumar v Prem Kumar, AIR 1976 Del 321. 40. Venugopal v Lakshmi, 1936 Mad 288. 41. Venugopal v Wikies, AIR 1936 Mad 288. 42. Weatherly v Weatherly, [1947] 1 All ER 563

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

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

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

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

DATABASES REFERRED:1. http://www.scconline.com (last visited on 28th February, 2016). 2. http://www.westlaw.org (last visited on 29th February, 2016). 3. http://www.maupatra.com (last visited on 22nd February, 2016). 4. http://www.lexisnexis.com (last visited on 19th February, 2016). 5. http://www.judis.nic.in (last visited on 18th 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 PLAINTIFF 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 PLAINTIFF

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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 Section 9 of 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 THE MUSLIM FORM OF MARRIAGE IS VALID?

V.

WHETHER RESTITUTION OF CONJUGAL RIGHT 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 firstly, Art.18of the Universal Declaration of Human Rights specifically lays down that the freedom of conscience and religion includes freedom to change the religion or belief. Secondly, the freedom of conscience and right to profess, practice and propagate religion is enshrined in Art 25 of the Constitution of India. II. FATIMA’S CONVERSION TO HINDUISM IS VALID It is humbly submitted the conversion of Fatima to Hinduism is valid because she also exercised her fundamental right to profess any religion of her own choice. She also performed the ceremony of Suddhi ceremony and performed all Hindu marriage ceremonies.

III. THE HINDU FORM OF MARRIAGE IS VALID It is humbly submitted they were both Hindu at the time of marriage. They both performed essential ceremonies required for the solemnization of marriage i.e. the ceremonies performed at the temple in Guntur in accordance with the HMA, 1955. So their marriage is valid under HMA.

IV. THE MUSLIM FORM OF MARRIAGE IS INVALID It is humbly submitted that the marriage under Mahomedan law is not valid as both Mohan and Fatima converted into Hinduism. So the marriage under Mahomedan law is not valid.

V. THE RESTITUTION OF CONJUGAL RIGHTS SHALL BE GRANTED TO MOHAN Marriage imposes an obligation on both spouses to cohabit with each other. Section 9 of HMA, 1955 provides for the restitution of the conjugal rights. In present case Fatima withdrew from the society of Mohan, hence he will be granted restitution of conjugal rights.

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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 perfectly valid because it is a basic fundamental right of a person to profess any religion which can be enunciated from the following: [A]UDHR PRINCIPLE 2. The freedom of conscience and the right to profess a religion implies freedom to change the religion as well. It is pertinent to mention that Art.181 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.2 This mental aspect of the freedom of conscience must be remembered in any discussion on Art. 25(1).3 [B]FREEDOM TO PROFESS AND PRACTICE RELIGION OF ONE’S CHOICE 3. It is humbly submitted that the freedom of conscience and right to profess, practice and propagate religion is enshrined in Art. 25 of the Constitution of India. The equality of all religions is expressly recognized by Art. 25 thereby emphasizing the cherished ideal of secularism. 4. The Constitution does not put any kind of embargo on the right of any person to freely choose any religion he or she likes or the religion which one is to adopt and practice in his or her life. It is well-settled that freedom of conscience and right to profess a religion implies freedom to change his or her religion as well. 5. The Apex Court in Lakshmindra4 has observed that Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. The religion is the right of a person believing in particular faith to practice it, preach it and profess it.5 1

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. 2 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. 3 Durgah Committee v Hussain, AIR 1961 SC 1402. 4 Commr. HRE, Madras v Sri Lakshmindra, AIR 1954 SC 282. 5 P.M.A. Metropolitan v Mran Mar Marthoma, AIR 1995 SC 2001.

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

6. The right to freedom of conscience thus implies the individual right of a person to renounce one’s religion and embrace another voluntarily. Thus the legal position which crystallizes from the above discussion is that it is the right of every individual to choose or embrace any religion and every person has the complete liberty to forsake his previous religion and to convert himself to another religion. 7. 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.6 Therefore, Mohan also professed his fundamental right to “practice, profess and propagate religion” of his own choice by converting to Hinduism. 8. He also had faith in Hindu religion as he enjoyed going to temple with his grandparents and was also well aware with the rituals and practices of the same. Also, he performed the suddhi ceremony which clearly illustrates that he had a bonafide intention to convert. II. FATIMA’S CONVERSION TO HINDUISM IS VALID 9. It is humbly submitted before the Hon’ble court that the conversion of Fatima to Hinduism is perfectly valid because she also exercised her fundamental right to profess any religion of her own choice. Religion is a very sensitive and personal aspect of individual’s life and the Constitution of India guarantees the freedom of conscience and religion to people of all denominations. Thus, a person is free to profess any faith or relinquish his faith of birth and convert to another religion. 10. Similarly, on the basis of UDHR’s principle and the right to freedom of religion guaranteed by the Constitution of India she can also convert to Hinduism to exercise her fundamental rights as submitted in the above paragraphs. She also went through the suddhi ceremony which clearly lays down her intention and faith in the Hinduism.

6

Ratilal Panchand v State of Bombay, AIR 1954 SC 388.

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III. THE HINDU FORM OF MARRIAGE IS VALID 11. It is humbly submitted before this Hon’ble Court that the marriage solemnized between Mohan and Fatima is valid as per the Hindu Marriage Act, 1955. [A] HMA, 1955 12. 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 Hindus 7 and in addition to this must satisfy the condition as laid down in Sec 58 and should be solemnized as per the ceremonies specified in Sec 79. 13. In the instant case, both Mohan and Fatima exercised their fundamental right i.e., right to profess religion and converted themselves to Hindu. Thus both of them are Hindu and are allowed to marry under the HMA, 1955. Though Fatima is below 18 years of age but that will not affect the validity of the marriage under the HMA, 1955 because such marriage will not be called as void or voidable. The sum and substance of below mentioned authorities10 infers that the marriage solemnized in contravention of age prescribed under Sec 5(iii) of the HMA i.e., 21 years for male and 18 years for female are neither void nor voidable under Sec 11 and Sec 12 of the HMA, 1955. 14. They both performed essential ceremonies required for the solemnization of marriage i.e. the ceremonies performed at the temple in Guntur. Also, all the essentials for a valid marriage are also fulfilled that renders the marriage as valid in accordance with the HMA, 1955.

IV. THE MUSLIM FORM OF MARRIAGE IS INVALID 15. 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: 16. Marriage or nikah, according to Muslim law, is defined to be a contract11 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. 7

Nilesh Narain v Kashmira Banker, AIR 2010 Guj 3; Margaret Palai v Savitri Palai, AIR 2010 Ori 45; Most Ranjani 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. 8 Sec 5, Hindu Marriage Act, 1955: Conditions for Hindu Marriage. 9 Sec 7, Hindu Marriage Act, 1955: Ceremonies for a Hindu marriage. 10 Ravi Kumar v State, 2005 (1) DLT 124; Phoola Devi v State, 2005 VIII AD Delhi 256; Rabindra Prasad v Sita Devi, AIR 1986 Pat 128. 11 Khurshid Bibi v Mohd Amin, P.L.D. S.C. 1967; Hasina Bano v Alam Noor, AIR 2007 Raj 49

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17. 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. A mahomedan male may contract a valid marriage not only with a Mahomedan woman, but also with a Kitabia, i.e. a Jewess or a Christian, but not with an idolatress or a fire-worshipper. A marriage with an idolatress or a fire-worshipper is an irregular marriage i.e. an invalid one.12 A Mahomedan woman cannot contract a valid marriage except with a Mahomedan. Therefore, as stated that Mohan and Fatima both converted into Hinduism due to which their marriage under Mahomedan law is invalid because it governs only those individuals who profess Islam. Also, Fatima underwent Suddhi ceremony due to which she worshipped fire and hence she can’t marry under the Mahomedan law.

V. RESTITUTION OF CONJUGAL RIGHTS SHALL BE GRANTED TO MOHAN 18. Marriage imposes an obligation on both spouses to cohabit with each other. The necessary implication of marriage is that parties will live together. Section 9 13 of HMA, 1955 provides for the restitution of the conjugal rights. The object of the restitution decree is to bring about cohabitation between the estranged parties i.e. so that they can live together in the matrimonial home in amity.14 19. Restitution of conjugal rights has been defined as matrimonial rights, ‘the rights which husband and wife have towards each other, society, comfort and affection’.15 20. Marital rights include the enjoyment of association, sympathy, confidence, and the comforts of dwelling together in the same habitation as well as the intimacies of domestic relations.16 The object of the decree of restitution is to bring about cohabitation between the estranged parties so that they may live together in the matrimonial home in amity.17 The three conditions which are to be fulfilled for restitution are as follows:[A] WITHDRAWAL OF RESPONDENT WITHOUT ANY REASONABLE EXCUSE 21. It is submitted that under section 9 of the Hindu Marriage Act, 1955 withdrawal from the society of the petitioner under, by respondent mean cessation of cohabitation by a voluntary act of the respondent. The word society in section 9 has the meaning as 12

Ishan v Panna Lal, (1928) 7 Pat. 6. Sec 9, Hindu Marriage Act: Restitution of conjugal rights. 14 Saroj Rani v Sudarshan, AIR 1984 SC 1562 15 Halsbury’s Laws of India, Volume 19, Family Law-I (2nd Ed., 2014), LexisNexis 16 Harvinder Kaur v Harminder Singh Choudhary, AIR 1984 Del 66. 17 Kailash Wati v Ajodhia Parkash, 1971 CLJ 109 (P & H). 13

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cohabitation. Cohabitation means living together as husband and wife i.e., the spouses are fulfilling their matrimonial duties.18 The words withdrawal from the society of the other means withdrawing by one spouse not from the company of the other but from the conjugal relationship. 22. The Indian courts have held that any act of commission or omission amounting to reasonable cause must be something grave and weighty or grave and convincing. 19 Where the wife withdraws from the society of the husband without any reasonable excuse and the material on record showed that she had no good reason to stay away from her husband, the husband would be entitled to degree of restitution of conjugal rights.20 23. The burden of proving reasonable excuse for withdrawal from the society will be on the person who has withdrawn from the society.21 In the present case it can be observed that Fatima out of her own will converted to Hinduism and married with Mohan. But later she left Mohan because of the influence exerted by her father who didn’t want her daughter to marry a non-Muslim person. Therefore, there is no reasonable excuse by Fatima to withdraw from the society. [B]THE

COURT IS SATISFIED ABOUT THE TRUTH OF THE STATEMENT MADE IN SUCH A

PETITION

24. What is needed to be established in a petition for restitution of conjugal rights is a total repudiation of cohabitation.22 Where the parties to the marriage have not cohabited at any time after marriage a petition for restitution of conjugal rights would lie if the intention not to cohabit is established.23 25. It is to be observed here in the present case that there is a total repudiation of cohabitation because she has migrated to other medical college and stopped all her contacts with Mohan because she considers him not to be a suitable person for her. [C]NO LEGAL GROUND EXISTS FOR REFUSING THE DECREE 26. Where there is no legal ground, a petition for restitution may not be dismissed simply on the ground that the wife does not like to live with the husband or that he is not a proper

18

De Laubenque v De Laubenque, (1899) P 42; Fassbenderv Fassbender, (1938) 3 All ER 389; Venugopal v Lakshmi, 1936 Mad 288. 19 Shyamlal v Saraswati, AIR 1967 MP 204; Satya v Ajaib, AIR 1973 Raj 20. 20 Manju Mehra v Kamal Mehra, AIR 2010 Bom 35; Naba Katari v Kalyani Katari, 2009 Indlaw CAL 414; Seema Halwai v Omprakash Halwai, AIR 2007 (NOC) 2518(MP). 21 Atmaram v Narbada, 1980 Raj 35. 22 Weatherly v Weatherly, [1947] 1 All ER 563. 23 Venugopal v Wikies, AIR 1936 Mad 288.

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life companion.24 It is significant to mention that a petitioner cannot be refused restitution, just because the respondent does not like him or does not want to live with him or because he is too poor or otherwise not a fir person to be proper life companion.25 Also, marriage in violation of the age requirements is perfectly valid and therefore a restitution petition may lie in such marriages.26 27. An application for restitution of conjugal rights can be entertained only when the marriage between the parties is legal. Where the parties are not legally married or the marriage was not subsisting at the time of the petition, the question of granting of decree of restitution could not arise.27 The marriage between both of them is perfectly valid and legal due to which the petitioner is entitled to decree of restitution and also there are no other legal wrongs on the account of petitioner such as physical assault, illicit relationship,28 cruelty,29 adultery etc. 28. 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 rights 30 and the family court31 will grant the relief if there is no legal bar to such decree.32 Therefore, the petitioner should be granted a decree of restitution as all the essentials are fulfilled for the same.

24

Anna Saheb v Tarabai, AIR 1970 MP 36. Kusum, Cases and Material on Family Law-I (3rd Ed., 2013). 26 HarendraNath v Suprova, AIR 1989 Cal 120; Sukram v Mishri Bai, AIR 1979 MP 144. 27 Jiva Magan v Bai Jethi, AIR 1941 Bom 535; Inder Yash v Manjeet Kaur, (1980) HLR 251. 28 Sarvesh Mohan Saxena v Sanju Saxena, 2009 (2) DMC 665. 29 Sapna v Neetu Bal Chand, AIR (NOC 2960) (Utr). 30 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. 31 Sec 7, Family Courts Act, 1984. 32 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. 25

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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, the 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 valid 3. The Hindu form of marriage is valid. 4. The Muslim form of marriage in invalid. 5. Restitution of conjugal rights shall 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 Plaintiff shall duty bound forever pray.

On behalf of MOHAN Counsels for the Plaintiff Sd/

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