Pet Final

UILS Academic Moot
BEFORE THE HON’BLE HIGH COURT OF DELHI
IN THE MATTER OF
STATE V. ROHAN
UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA AND

SECTION 482 OF CODE OF CRIMINAL PROCEDURE
UPON THE SUBMISSION TO THE HON’BLE HIGH COURT OF

DELHI
WRITTEN SUBMISSION ON THE BEHALF OF PETITIONER

M.K.E.S 3RD NATIONAL MOOT COURT COMPETITION, 2018
CONTENTS
Index of Authorities...................................................................................II
A. Abbreviations................................................................................II
B. Books...........................................................................................III
C. Cases............................................................................................IV
D. Dictionaries...................................................................................V
E. International Conventions............................................................VI
F. Statutes.........................................................................................VI
G. Websites.......................................................................................VI
Statement of Jurisdiction........................................................................VII
Statement of Facts.................................................................................VIII
Issues Raised............................................................................................IX
Summary of Arguments............................................................................X
Arguments Advanced.................................................................................1
A. That Jitender is not liable for the kidnapping of Poonam from her
legal guardian?.......................................................................................1
B. That marriage is voidable and not invalid under hindu marriage
act, 1955.................................................................................................6
C. That Jitender is liable under Section 376 of Indian Penal Code,
1960 11
D. That Jitender’s contention to get the custody of his wife is
maintainable.........................................................................................14
Prayer........................................................................................................19
Memorial on Behalf of the Petitioner

I|Page
INDEX OF AUTHORITIES
A. ABBREVIATIONS
& And
A.I.R. All India Reporter
A.P. Andhra Pradesh
Anr. Another
Art. Article
CEDAM Convention on the Elimination
of all forms of Discrimination
against women
CRC Convention on the Rights of the
Child
Cr.LJ Criminal Law Journal
CrPC Code of Criminal Procedure
Del. Delhi
FB Full Bench
Govt. Government
Gau. Guahati
H.C High Court
H.P Himachal Pradesh
Hon’ble Honourable
I.P.C Indian Penal Code
I.O. Investigating Officer
Kar. Karnataka
Ker. Kerala
Mad. Madras
Ors. Others
P&H Punjab and Haryana
SC Supreme Court
SCC Supreme Court Cases
U.O.I. Union Of India

II | P a g e
v. Versus
W.B West Bengal
B. BOOKS
1. K.D. GAUR, Commentary on the Indian Penal Code (2nd ed.
Universal Law Publ'g 2013)
2. S.C Sarkar, 3 Commentary on the Indian Penal Code (3rd ed.
Dwivedi Law Agency 2011)
3. Batuk Lal, 2 Commentary on the Indian Penal Code (2nd ed. Orient
Publ'g 2011)
4. Ratan Lal & Dhiraj Lal, Commentary on the Indian Penal Code (31st
ed. Wadhwa & 2006).
5. M.P. JAIN, INDIAN CONSTITUTIONAL LAW (6 th ed. Lexis Nexis
Butterworths Wadhwa, Nagpur 2010)
6. P.S.A. PILLAI, CRIMINAL LAW (13th ed. Lexis Nexis, New Delhi
2017)
7. Sir Dinshah Fardunji Mulla, Hindu Law (21st ed. Lexis Nexis)
8. Mayne, Hindu Law and Usage (15th ed. Bharat Law House)
9. Dr. Gurbax Singh, The Principles of Hindu Law (Vinod Publications
2009).

III | P a g e
C.CASES
S.No. Case Citation Pg.
no.
1. Aman Kumar And Anr v. State (2004) 4 SCC 379 11
Of Haryana
2. Anjali Kapoor v. Rajiv Baijal (2009) 7 SCC 322 15
3. Bhagwan Singh And Ors. vs 2006 (92) Drj 517 5
State And Anr.
4. Bittu alias Anand Singh v. 1986 Shim.L.C 113 3
State of H.P.
5. Chathu v. P. Govindan Kutty A.I.R. 1958 Ker. 121 2
6. Dileep Sharma v. The State of 2015 SCC Online All 2
U.P. 7951
7. Gaurav Nagpal v. Sumedha A.I.R. 2009 SC 557 15
Nagpal
8. Gindan & Ors. v. Barelal A.I.R. 1976 MP 83 7
9. Jiten Bouri v. State of West (2003) 2 CALLT 457 17
Bengal HC
10. Karamvir v. State of Haryana Crl. Misc. No. M- 9
& Ors. 13312 of 2013
11. Kokkula Suresh v. The State A.I.R. 2009 AP 52 15
of Andhra Pradesh
12. Shyam Rao Maroti Korwate v. (2010) 10 SCC 314. 16
Deepak Kisan Rao Tekam
13. Lajja Devi & Ors. v. State & (2012) 131 DRJ 225 10
Ors. (FB)
14. Lila Gupta v. Laxmi Narain A.I.R. 978 SC 1351 7
15. Makemalla Sailoo v. 2006(2) ALD 290 15
Superintendent of Police,
Nalgonda District
16. P. Venkataramana v. State A.I.R. 1977 AP 43 7
17. Prabhakaran v. Mahesh 1995(1) HLR 250 16
Swaran (Mad – DB).
18. Rao Harnarain Singh Sheoji A.I.R. 1958 Punj 123 12

IV | P a g e
Singh v. The State

19. S. Varadarajan v. State of A.I.R. 1965 SC 942 2
Madras
20. Sh. Jitender Kumar Sharma vs 2010 SCC Online 12
State & Another Del 2705
21. Shaheen Parveen v. State of WPN 3519 (M/B), 3
U.P. 2015
22. Sunil Kumar v. The state, I (2007) DMC 786 17
NCT Delhi
23. T. Sivakumar v. The Inspector A.I.R. 2012 Mad 62 9, 17
of Police (FB)
24. T.D. Vadgama v. State of A.I.R. 1973 SC 587 4
Gujrat
25. Tukaram Dhondika Padatre v. I (2002) DMC 396 7
Savithri (Kar).
26. Union of India v. India A.I.R. 1966 SC 35 9
Fisheries (P) Ltd
D. DICTIONARIES
1. Bryan a. Garner, Black's Law Dictionary (8th ed. 2001)
2. Oxford English Dictionary (2nd ed. 2009)
E. INTERNATIONAL CONVENTIONS
1. INTERNATIONAL CONVENTION ON THE RIGHTS OF THE

CHILD.
2. CONVENTION ON THE ELIMINATION OF ALL FORMS OF
DISCRIMINATION AGAINST WOMEN.
F. STATUTES
1. THE CONSTITUTION OF INDIA
V|Page
2. THE INDIAN PENAL CODE,1860

3. THE CODE OF CRIMINAL PROCEDURE,1973
4. HINDU MARRIAGE ACT,1955
5. PROHIBITION OF CHILD MARRIAGE ACT,2006
6. HINDU MINORITY AND GUARDIANSHIP ACT,1956
7. GUARDIANS AND WARDS ACT,1890
G. WEBSITES
1. http://www.supremecourtofindia.nic.in
2. http://www.scconline.com
3. http://www.manupatra.com
4. http://www.jstor.org

VI | P a g e
STATEMENT OF JURISDICTION
Jitender, hereafter referred to as the petitioner has approached the Hon'ble

High Court of Delhi invoking the writ jurisdiction under Article 226(1) 1
of Constitution of India to demand the custody of Poonam, his wife. Also,
the petitioner seeks to invoke the inherit powers of the court under section
4822 of The Code of Criminal Procedure for quashing the FIR lodged
against him.
1
Power of the High Courts to issue certain writs, Notwithstanding anything in Article 32 every High
Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue
any person or authority, including in appropriate cases, any Government, within those territories
directions, orders or writs, including writs in nature of habeas corpus, mandamus, prohibitions, quo
warranto and certiorari, or any of them, for the enforcement of any rights conferred by Part III and for
any other purpose..
2
"482. Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or
affect the inherent powers of the High Court to make such orders as may be necessary to give effect to
any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the
ends of justice."
VII | P a g e
STATEMENT OF FACTS
 That Jitender and Poonam, aged 18 and 16 respectively, eloped from
their houses and got married as per the Hindu Rites and Ceremonies.
 That FIR under Section 363 and Section 376 of IPC was lodged by
Poonam’s Father.
 That a typed letter, signed by Poonam was sent by her to the Police
Station on 5th May,2010, which said that she had married Jitender
with her own consent and requested not to file any criminal action
against Jitender.
 That on 7th May, 2010 they were apprehended from Bilaspur and
produced before the court.
 That Poonam refused to undergo any medical examination and didn’t
mention anything against Jitender in her statement under Section 164
of code of Criminal Procedure, 1973.
 That Jitender was sent to Juvenile Home and Poonam to Nari Niketan
for some time.
 That on 17th May, 2010, Poonam’s custody was handed over to her
parents.
 That after getting released on 15th June, 2010, Jitender filed a case
demanding Poonam’s custody.

VIII | P a g e
ISSUES RAISED
ISSUE 1.
WHETHER JITENDER IS LIABLE FOR THE KIDNAPPING OF POONAM FROM
HER LEGAL GUARDIAN?
ISSUE 2.
WHETHER THE MARRIAGE IS VOIDABLE UNDER THE HINDU MARRIAGE
ACT, 1955?
ISSUE 3.
WHETHER JITENDER IS LIABLE UNDER SECTION 376 OF INDIAN PENAL
CODE, 1860?
ISSUE 4.
WHETHER JITENDER’S CONTENTION TO GET THE CUSTODY OF HIS WIFE IS
MAINTAINABLE OR NOT?

IX | P a g e
SUMMARY OF ARGUMENTS
ISSUE 1. WHETHER JITENDER IS LIABLE FOR THE
KIDNAPPING OF POONAM FROM HER LEGAL GUARDIAN?
 Jitender is not liable for Kidnapping Poonam from her legal Guardian
under section 363 of IPC.
 The essential ingredient, taking or enticing away of section 361 of
IPC is not fulfilled as Poonam with her own will, eloped from her
house.
 There is no allurement or inducement on the part of Jitender.
ISSUE 2. WHETHER THE MARRIAGE IS VOIDABLE UNDER
THE HINDU MARRIAGE ACT?
 The marriage solemnized by Jitender and Poonam is voidable not
invalid.
 The Hindu Marriage Act,1955 makes marriage in contravention of
Section 5(iii) neither void nor voidable.
 Prohibition of Child Marriage Act, 2006 has overriding effect on
Hindu Marriage Act, 1955.
 Section 3 of the Prohibition of Child Marriage, 2006 declares child
marriage to be voidable at the option of the contracting party.
 None of the Ingredients of Section 12 are attracted in the present case.
ISSUE 3. WHETHER JITENDER IS LIABLE UNDER SECTION
376 OF INDIAN PENAL CODE, 1860?
 Jitender is not liable for Rape of Poonam under Section 376 of
IPC,1860 as his act doesn’t fall under any of the ingredients of
Section 375 of IPC.
 Moreover, there is no evidence of Sexual Intercourse between the
two.

X|Page
 Further, he falls under the exception of Section 375, both being

husband and wife.
ISSUE4. WHETHER CONTENTION TO GET THE CUSTODY OF

HIS WIFE IS MAINTAINABLE OR NOT?
 Custody of Poonam should be given to her husband and not her
parents as per Hindu Minority and Guardianship Act, 1956.
 Welfare is the paramount consideration for giving the custody of the
child and the welfare of Poonam lies with her husband, Jitender.

XI | P a g e
ARGUMENTS ADVANCED
MOST RESPECTFULLY SHOWETH:
A. THAT JITENDER IS NOT LIABLE FOR THE KIDNAPPING OF POONAM
FROM HER LEGAL GUARDIAN
1. It is respectfully submitted that petitioner is not liable for the

kidnapping of Poonam from her legal guardian.
2. Kidnapping as defined in section 3613 of IPC,1860 has ingredients as
presented as under: -
a) There must be taking or enticing away of a minor or a person of
unsound mind.
b) If minor is male he must be under the age of 16 years and if
female she must be under the age of 18 years.
c) The taking or enticing must be out of the keeping of the lawful
guardian of such minor or person of unsound mind.
d) The taking or enticing must also be without the consent of the
such guardian.
3. It is humbly submitted the gravity of this offence lies in the taking or
enticing of a minor under the ages specified in this section, out of
keeping of the lawful guardian without the consent of such guardian4.
4. It is further submitted that the essential ingredient for the offence of
kidnapping is the taking or enticing away a minor out of keeping of a
lawful guardian. Takes mean "causes to go, to escort, to get in
3
361." Kidnapping from lawful guardianship”. —Whoever takes or entices any minor under sixteen
years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of
the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of
such guardian, is said to kidnap such minor or person from lawful guardianship.
Explanation. —The words “lawful guardian” in this section include any person lawfully entrusted with
the care or custody of such minor or other person.
(Exception) —This section does not extend to the act of any person who in good faith believes himself
to be the father of an illegitimate child, or who in good faith believes himself to be entitled to lawful
custody of such child, unless such act is committed for an immoral or unlawful purpose.
4
K.D.Gaur, Commentary on the Indian Penal Code (2nd ed. Universal Law Publ'g 2013).
1|Page
possession5. The accused must have done which led to the girl going
out of the keeping of her guardian.
5. In Chathu v. P. Govindan Kutty6, the court had held that the
expression "taking out of keeping of lawful guardian" must signify
some act done by the accused which may be regarded as the
proximate cause of the person going out of the keeping of the
guardian.
6. Also, in Varadarajan v. State of Madras7, the Hon’ble Supreme Court
distinguished between “taking away” and “allowing a minor to
accompany” a person. In cases where the minor left her father's
protection knowing and having capacity to know the full import of
what she was doing voluntarily joins the accused person, it cannot be
regarded as taking away from keeping of lawful guardianship and
thus, accused cannot be held guilty of kidnapping. Some kind of
inducement held out of by the accused person or an active
participation by him in the formation of the intention of the minor to
leave the house of the guardian is necessary to be shown.
7. It is humbly submitted that in present case not only the consent of
Poonam was present at the time of eloping but also she has confirmed
her desire to live with petitioner at two future instances wherein at
first instance she a wrote a letter to Police Station after the filling of
FIR stating that she eloped and married Jitender in her own will.
Also, in the second instance she herself gave in writing that she had
left her parent's home on her own will.
8. In Dileep Sharma v. The State of U.P.8 it was held if a minor, of her
own, abandons the guardianship of her parents and joins a boy
without any role having been played by the boy in her abandoning the
5
S. Varadarajan v. State of Madras, A.I.R. 1965 SC 942.
6
A.I.R. 1958 Ker. 121.
7
A.I.R. 1965 SC 942.
8
2015 SCC Online All 7951.
2|Page
guardianship of her parents and without her having been subjected to

any kind of pressure, inducement, etc. and without any offer or
promise from the accused, no offence punishable under Section 363
I.P.C will be made out. In case the victim/prosecutrix willingly, of her
own accord, accompanies the boy, the law does not cast a duty on the
boy of taking her back to her father's house or even of telling her not
to accompany him. A girl who has attained the age of discretion and
was on the verge of attaining majority and is capable of knowing
what was good and what was bad for her, cannot be said to be a
victim of inducement, particularly when the case of the victim/girl
herself is that it was on her initiative and on account of her voluntary
act that she had gone with the boy and got married to him. In such
circumstances, desire of the girl/victim is required to be seen.
Ingredients of Section 361 I.P.C,1860 are required to be considered
accordingly, and not in mechanical or technical interpretation.
Ingredients of Section 361 I.P.C cannot be said to be satisfied in a
case where the minor having attained age of discretion, alleged to
have been taken by the accused person, left her guardian's protection
knowingly (having capacity to know the full import of what she was
doing) and voluntarily joins the accused person. In such a case, it
cannot be said that the victim had been taken away from the keeping
of her lawful guardian9.
9. Himachal Pradesh High Court in Bittu alias Anand Singh v. State of
HP10, has held that when the victim/prosecutrix was undisputedly of
15 years 10 months and 10 days, i.e. one month and 20 days short of
the crucial 16 years of age and the victim/prosecutrix is not only
willing party to go with the accused but also plays an active part in
9
Shaheen Parveen v. State of U.P., Writ petition no. 3519 (M/B), 2015.
10
1986 Shim.L.C 113.
3|Page
going away with the accused, in such circumstances, no offence under

section 363 IPC can be said to have been made out.
10. It is humbly submitted that the very essential requirement of offence
kidnapping is absent in present case. In present case the girl Poonam
herself eloped from her house without any prior inducement on the
part of accused. As no active part was played by accused in girl's
leaving her lawful guardian custody. Here the accused has not done
anything which led to the girl going out of the keeping of her
guardian. Also a signed letter was received by Police station stating
that she had married Jitender with her own will and also Poonam gave
in writing that she had left her parents’ home by her own will and
went along with Jitender.
11. It is humbly submitted that Enticing means an act of the accused by
which the person kidnapped is induced of his own accord to go to the
kidnapper. The word ‘entice’ involves an idea of inducement or
allurement by exciting hope or desire in the other. Kidnapper may has
laid foundation by inducement, allurement or by threat and if this
influenced the minor in leaving her guardian's custody then he cannot
plead innocence on ground that minor had voluntarily come to him11.
12. It is humbly submitted that there is no allurement or inducement on
the part of accused. Accused had not allured or induced her and there
was no active participation by accused neither at earlier stage nor
immediately before in forming her intention to elope from her house.
This clearly shows that there is no taking or enticing on the part of the
accused taking out of her keeping of lawful guardian.
13. Here the accused has not laid the mere foundation of inducement or
allurement which led to the girl going out of the keeping of her
guardian.
11
T.D. Vadgama v. State of Gujrat, A.I.R. 1973 SC 587.
4|Page
14. The fact of her accompanying the accused all along is quite consistent
with her own desire to be the wife of the accused in which the desire
of accompanying him wherever he went is of course implicit. Under
these circumstances, no inference can be drawn that the accused is
guilty of taking away the girl out of the keeping of her father. She has
willingly accompanied him and the law does not cast upon him the
duty of taking her back to her father's house or even of telling her not
to accompany him12.
15. Hence in light of the aforementioned arguments it is humbly
submitted and prayed before honourable court that the accused cannot
be held liable for kidnapping under section 363 of IPC, 1860 as the
essential ingredient of section 361 of IPC,1860 to constitute the
offence of kidnapping is missing.
12
Bhagwan Singh And Ors. v. State And Anr, 2006 (92) Drj 517.
5|Page
B. THAT MARRIAGE IS VOIDABLE AND NOT INVALID UNDER HINDU

MARRIAGE ACT, 1955.
16. It is Most Humbly submitted before the Hon’ble High Court that the
marriage of the Petitioner Jitender and his wife, Poonam is voidable
and not invalid as per the following arguments:
B.1. Marriage in contravention of Section 5 (iii) under HMA, 1955 is
neither void nor voidable.
17. Marriages under Hindu Marriage Act, 1955 are segregated into Void
and Voidable Marriages. Void Marriages are provided under Section
11 and Voidable Marriages under Section 12(1) of HMA. This
ramification is made on the basis of the ‘Conditions for a Hindu
Marriage’, provided under Section 5 of the HMA, 1955.
18. For a Hindu Marriage to be valid, there are certain conditions
provided under Section 513 of the Hindu Marriage Act, 1955 which
should be fulfilled. One of the conditions being Clause (iii): Age of
the Parties.
19. A marriage is a void marriage under Section 1114 if the conditions
specified in clauses (i), (iv), and (v) of Section 5 are not fulfilled.
Whereas, if the condition specified in clause (ii) of Section 5 is not
13
Conditions for a Hindu marriage: A marriage may be 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.
14
Void marriages : Any marriage solemnised after the commencement of this Act shall be null and
void and may, on a petition presented by either party thereto 11 [against the other party], be so declared
by a decree of nullity if it contravenes any one of the conditions specified in clauses (i) , (iv) and (v) of
section 5.
6|Page
fulfilled, marriage is voidable under Section 12(1)15. However,

provisions related to marriage in contravention of Clause (iii) is not
provided in either of the Sections.
20. In the case of Gindan & Ors. v. Barelal16, Hon’ble High Court held
that a marriage solemnized in contradiction of the age mentioned in
Section 5 (iii), regarding the age restriction, made it only punishable
under Section 1817 and the marriage would remain valid, enforceable
and recognizable in courts of law.
21. Further, Full Judge Bench in the case of P. Venkataramana v. State18,
held that any marriage solemnized in contravention of clause (iii) of
section 5 is neither void nor voidable, the only consequence being
that the persons concerned are liable for the punishment under
Section 18. The same has been reiterated in the case of Tukaram
Dhondika Padatre v. Savithri19.
22. Insight in case of Lila Gupta v. Laxmi Narain20, Hon’ble Supreme
Court held that wherever the Parliament intended to treat any
marriage void on account of contravention of any provision it has
15
Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable
and may be annulled by a decree of nullity on any of the following grounds, namely:
(a) that the marriage has not been consummated owing to the impotence of the respondent; or
(b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner
was required under section 5 as it stood immediately before the commencement of the Child Marriage
Restraint (Amendment) Act, 1978 (2 of 1978), the consent of such guardian was obtained by force [or
by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the
respondent]; or
(d) that the respondent was at the time of the marriage pregnant by some person other than the
petitioner.
16
A.I.R. 1976 MP 83.
17
Punishment for contravention of certain other conditions for Hindu marriage: Every person who
procures a marriage of himself or herself to be solemnized under this Act in contravention of the
conditions specified in clauses (iii), (iv), and (v) of section 5 shall be punishable :
(a) in the case of contravention of the condition specified in clause (iii) of section 5, with rigorous
imprisonment which may extend to two years or with fine which may extend to one lakh rupees, or
with both;
(b) in the case of a contravention of the condition specified in clause (iv) or clause (v) of section 5, with
simple imprisonment which may extend to one month, or with fine which may extend to one thousand
rupees, or with both.
18
A.I.R. 1977 AP 43.
19
I (2002) DMC 396 (Kar).
20
A.I.R. 1978 SC 1351.
7|Page
expressly so stated. When the minimum age of bride and the

bridegroom for a valid marriage is prescribed in Condition (iii) of
Section 5, it would only mean personal incapacity for a period
because every day the person grows and would acquire the necessary
capacity on reaching the minimum age and that before attaining the
minimum age if a marriage is contracted, it is not rendered void under
Section 11 even though section 18 makes it punishable.
23. Besides the conditions, the ceremonies mentioned under Section 7 21
of the Hindu Marriage Act, 1955 should also be performed for a
marriage to be valid.
24. In the present case, both Jitender and Poonam got married according
to the Hindu rites and ceremonies22.
25. Condition of ‘Age’ provided under section 5(iii) is not fulfilled, both
being below the age requirement provided for solemnization of a
Hindu Marriage. Thus, in the light of facts and cases cited, it is
humbly submitted that the marriage of Petitioner and his wife under
HMA, 1955 is neither void nor voidable.
B.2. PCMA, 2006 has an overriding effect on HMA, 1955.

26. It is most humbly submitted that apart from HMA, 1955, Prohibition
of Child Marriage Act, 2006 under Section 3 23 clearly lays down that
21
Ceremonies for a Hindu marriage : (1) A Hindu marriage may be solemnized in accordance with the
customary rites and ceremonies of either party thereto.
(2) Where such rites and ceremonies include the Saptpadi (that is, the taking of seven steps by the
bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding
when the seventh step is taken.
22
Para 1, Fact Sheet.
23
Child marriages to be voidable at the option of contracting party being a child.-
(1) Every child marriage, whether solemnized 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.
(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.
8|Page
every child marriage, shall be voidable at the option of the contracting

party who at the time of marriage was a minor.
27. Herein, Prohibition of Child Marriage Act, 2006 is a Special Act and
Hindu Marriage Act, 1955 a General Act, prior has an overriding
effect on the later. Hon’ble Supreme Court in the case of Union of
India v. India Fisheries (P) Ltd.24, held that when there is an apparent
conflict between two independent provisions of law, the special
provision must prevail. It is most humbly submitted that the Hon’ble
High Court of Madras in the case of T. Sivakumar v. The Inspector of
Police25, held that there is an overriding effect of Prohibition of Child
Marriage Act, 2006 on HMA, the prior being a special Act enacted
for the purpose of effectively dealing with the solemnization of child
Marriages.
28. Furthermore, it is most respectfully submitted that in the case of
Karamvir v. State of Haryana & Ors.26, Hon’ble High Court of
Punjab & Haryana held that, Muslim Personal Law (Shariat)
Application Act, 1937, is a general act and the Prohibition of Child
Marriage Act, 2006 is a special enactment mainly relating to child
marriage. Consequently, the Act of 2006 being Special Act would
prevail over the Act of 1937, which is a General Act.
29. Parliament was aware of the provisions of Section 5, 11, 12 & 18 of
the HM Act. By declaring that the PCM Act will apply to all the
citizens, the parliament has intended to allow the PCM Act to
override the provisions of HM Act to the extent of inconsistencies
(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.
24
A.I.R. 1966 SC 35.
25
A.I.R. 2012 Mad 62 (FB).
26
Crl. Misc. No. M-13312 of 2013.
9|Page
between these two enactments. Moreover, PCM Act is a secular law

and is a latter enactment, which specifically deals with the problem of
child marriages. Religion of the contracting party does not matter.
PCM Act being a "Special Act" and being a subsequent legislation,
will override the provisions of HMA or for that matter any personal
law27.
30. Section 1228 of the PCMA, 2006 provides certain circumstances under
which Child Marriages can be held to be void. But, neither of the
circumstances can be traced to be present in the present case and thus,
the marriage in the present case is not void.
31. Henceforth, it is humbly submitted before the Hon’ble bench that the
marriage duly performed by Jitender and Poonam is voidable with an
option to make it void as per the provisions of Prohibition of Hindu
Marriage Act, 2006. At the same time, though the marriage is
Voidable but still standing because in the present case neither of the
contracting parties wants to exercise their right provided under
Section 3 of Prohibition of Child Marriage Act, 2006 and want to
reinforce and strengthen their marital bond by living together.
27
Court on its Own Motion (Lajja Devi) & Ors. v. State & Ors., (2012) 131 DRJ 225 (FB).
28
Marriage of a minor child to be void in certain circumstances. -Where a child, being a minor-
(a) is taken or enticed out of the keeping of the lawful guardian; or
(b) by force compelled, or by any deceitful means induced to go from any place; or
(c) is sold for the purpose of marriage; and made to go through a form of marriage or if the minor is
married after which the minor is sold or trafficked or used for immoral purposes, such marriage shall
be null and void.
10 | P a g e
C. THAT JITENDER IS LIABLE UNDER SECTION 376 OF INDIAN PENAL

CODE, 1960
32. It is respectfully submitted that Jitender is not liable for the offence of
rape under section 376 of IPC,1860. Rape is defined in section 375 of
IPC,186029
33. It is humbly submitted for an offence of rape to be made out against
accused, the preliminary requirement is the existence of a sexual
intercourse between two. Penetration is the sine qua non for an
offence of rape. In order to constitute penetration, there must be
evidence clear and cogent to prove that some part of the virile
member of the accused was within the labia of the pudendum of the
woman, no matter how little30. But in present case there is no
existence of sexual intercourse. Hence, any charges under section 376
made out against the accused are liable to be quashed.
34. It is further submitted that even assuming arguendo there was a sexual
intercourse between the petitioner and Poonam, yet no offence as
defined under section 375 of IPC, 1860 can be made out against
petitioner as it does not fulfill the conditions of the section. Firstly the
sexual intercourse was not against her will and it was with her
consent as can be inferred from the facts of the case. A woman is said
29
“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.”
30
Aman Kumar And Anr v. State Of Haryana, (2004) 4 SCC 379.
11 | P a g e
to consent, only when she freely agrees to submit herself, while in

free and unconstrained possession of her physical and moral power to
act in a manner she wanted. Consent implies the exercise of a free and
untrammelled right to forbid or withhold what is being consented to it
always is a voluntary and conscious acceptance of what is proposed to
be done by another and concurred in by the former31. Consent means
active will in the mind of a person to permit the doing of the act of
and knowledge of what is to be done. It involves voluntary
participation32. Further, this consent was not obtained by inducing a
fear in her mind neither does the act of petitioner and Poonam fall
under conditions fourthly and fifthly as stipulated in section.
35. It is further submitted that even the condition under sixthly does not
affect the present matter as it is protected by the exception to section
375 of this code wherein a man having sexual intercourse with his
own wife, where his wife is not under the age of 15 years is excepted
from the charge of rape under section 375 of this code. A man cannot
be guilty of rape on his own wife when she is over the age of 15 years
on the account of matrimonial consent she has given which she
cannot retract33.
36. It is humbly submitted this hon'ble court in Sh. Jitender Kumar
Sharma v. State & Another34, wherein similar facts existed, held that
as far as the offence punishable under section 376 IPC is concerned,
the present case falls under the exception to section 375 in as much as
Poonam is Jitender's wife and she is above 15 years of age. The
allegation of criminal intimidation is also not sustainable at the outset
and all proceedings pursuant thereto are liable to be quashed.
31
Rao Harnarain Singh Sheoji Singh v. The State, A.I.R. 1958 Punj 123.
32
Dr K I Vibhute, PSA Pillai's Criminal Law (12th ed. Lexis Nexis 2016.)
33
Huree Mohun Mythee ( 1890) 18 Cal 49.
34
2010 SCC Online Del 2705.
12 | P a g e
37. A person commits criminal intimidation if he (1) threatens another

with any injury (a) to his person, reputation or property, or (b) to the
person or reputation of any one in whom that person is interested, or
(2) with intent (a) to cause alarm to that person, or (b) to cause that
person to do any act which he is not legally bound to do, or to omit to
do any act which that person is legally entitled to do, as the means of
avoiding the execution of such threat. But in present case no
essentials of even criminal intimidation are fulfilled.
38. It is respectfully submitted that in present case also both accused and
girl had married according to Hindu rites and ceremonies with each
other's consent. And as submitted that exception of section 375 of
IPC,1860 clearly states that sexual intercourse between husband and
wife is not rape being the wife is not under the age of fifteen years.
As per this present case Poonam is Jinterder's wife and she is of 16
years of age i.e. not under the age of 15 years. There is no conduct of
accused that makes him fall within the definition of rape and it's six
conditions to make him liable for the offence.
39. Hence in light of the aforementioned arguments it is humbly
submitted and prayed before honourable court that the accused cannot
be held liable for Rape under section 376 of IPC, 1860 as his act is
falling under the exception of section 375 of IPC, 1860.

13 | P a g e
D. THAT JITENDER’S CONTENTION TO GET THE CUSTODY OF HIS WIFE

IS MAINTAINABLE
40. It is Most Humbly submitted before the Hon’ble High Court that
Jitender should be given the custody of his wife Poonam as per the
following arguments:
41. It is humbly submitted that the court sent Poonam to Nari Niketan for
some time, and then on 17.05.2010, the custody of Poonam was
handed over to her parents. Further, as has been already submitted
that the petitioner's marriage with Poonam cannot be held to be a
nullity merely on the ground that the girl is a minor by the date of the
marriage.
42. Also, from the provisions of the Hindu Minority and Guardianship
Act, 1956, it is true that a person who has not completed the age of
eighteen years is a minor and as per Section 6 35(a) of the said Act, the
father is a natural guardian of a Hindu minor unmarried girl.
However, as per Section 6(c) of the said Act, in the case of a Hindu
minor married girl, the husband is the natural guardian in respect of
the minor's person as well as in respect of the minor's property. The
word "Guardian" means a person having the care of the person of a
minor or of his property, or of both his person and property36.
35
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 stepfather and a step-
mother.
36
Section 4 of the Guardians and wards Act, 1890.
14 | P a g e
43. It is most humbly submitted that, the Hon’ble High Court of Andhra
Pradesh had held that on a combined reading of Section 5(iii) read
with Sections 11, 12 & 18 of the Hindu Marriage Act and Section
4(a) and Section 6(a) & (c) of Hindu Minority and Guardianship Act,
1956, that petitioner the husband of minor is her Natural Guardian
and consequently her custody shall be with the petitioner37.
44. Furthermore, Division Bench of Hon’ble High Court of Andhra
Pradesh in the case of Makemalla Sailoo v. Superintendent of Police,
Nalgonda District38 in identical circumstances held that the husband
therein was entitled to the custody of his wife, who was a minor girl
of 13 years, since he was the natural guardian under the provisions of
the Hindu Minority and Guardianship Act, 1956, and accordingly
directed that the minor girl who was sent to State Home for Child-
care Centre by the Magistrate shall be handed over to her husband.
45. It is most humbly submitted before this Hon’ble High Court that as
per Section 1339 of the Hindu Minority and Guardianship Act, 1956
that the welfare of the Minor is the paramount consideration for
giving away the guardianship of the minor.
46. The Hon’ble Supreme Court in the case of Gaurav Nagpal v.
Sumedha Nagpal40, held that the principles in relation to the custody
of a minor child are well settled. In determining the question as to
who should be given custody of a minor child, the paramount
consideration is the welfare of the child and not the Rights of parents
under a statute for the time being in force. The same has been
reiterated by the Hon’ble Supreme Court in the case of Anjali Kapoor
37
Kokkula Suresh v. The State of Andhra Pradesh, A.I.R. 2009 AP 52.
38
2006(2) ALD 290.
39
Welfare of minor to be paramount consideration.- (1) In the appointment of 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.
40
A.I.R. 2009 SC 557.
15 | P a g e
v. Rajiv Baijal41, where the prime and often sole consideration or

guiding principle in case of custody of minor was said to be the
welfare of the child.
47. Further, the Hon’ble Supreme Court in the case of Shyam Rao Maroti
Korwate v. Deepak Kisan Rao Tekam42, held that the word, “welfare”
used in Section 13 of the Act has to be inferred literally and must be
taken in its broad sense.
48. It is most respectfully presented that ‘welfare’ starts at the mere
stance of living life freely without being afraid of one’s safety. In the
present case, Poonam had been threatened by her grandparents and
uncle of her life and safety and is completely against her marriage
with Jitender. It is humbly submitted that the marriage is duly
performed by the Petitioner and Poonam and is not invalid in the eyes
of law and she still has the option of making that marriage invalid.
There is high probability that Poonam’s parents force her to break her
marriage with Jitender and that to against her. Thus, the custody of
Poonam should be handed over to Jitender.
49. Also, in the case of Prabhakaran v. Mahesh Swaran43, the respondent
was alleged to have kidnapped the girl while she was in her school.
The father of the girl asserted that he had married the girl lawfully
and she was living with him voluntarily and also was pregnant at that
time. It was also stated that the age of the girl was 17 years on the
date of the marriage. The court held that the husband was the natural
guardian of the minor married girl under Section 6(c). As the girl was
of the age of discretion and knew what she stated, it would not be in
her father, as he was hostile to her marriage because the girls in such
a situation are not welcomed. The court held that the girl was not in
41
(2009) 7 SCC 322.
42
(2010) 10 SCC 314.
43
1995(1) HLR 250 (Mad – DB).
16 | P a g e
an illegal custody of the respondent. Furthermore, the Hon’ble High

Court in the case of Jiten Bouri v. State of West Bengal,44 held that,
“Although the girl has not attained the age of majority, yet she has
attained the age of discretion to understand her own welfare which is
the paramount consideration for grant of her custody.”
50. Similar facts were present in the case of Sunil Kumar v. The state,
NCT Delhi45, wherein the girl was not willing to return to her parents,
who were not amenable to any reconciliation and wished to server all
the relations with her. The minor girl was permitted to live with her
husband.
51. Furthermore, the Full Bench of Hon’ble High Court of Madras in the
case of T. Sivakumar v. The Inspector of Police46, held that while
granting the custody of a minor girl, the court shall consider the
paramount welfare including safety of the minor girl notwithstanding
the legal right of the person who seeks custody and grant of the
custody in a habeas corpus proceeding shall not prejudice the legal
rights of the parties to approach the civil court for appropriate relief.
52. The minor girl cannot be allowed to walk away from the legal
guardianship of her parents. But, if she expresses her desire not to go
with her parents, provided to determine, the court cannot compel her
to go to the custody of the parents and instead, the court may entrust
her in the custody of a fit person subject to her violation.
53. In the present case, welfare of Poonam is in living with her legally
wedded husband, with whom she has married voluntarily without any
force or coercion.
54. Therefore, it is reverentially submitted that, Jitender should be
awarded the custody of Poonam, Jitender being Natural Guardian of
44
(2003) 2 CALLT 457 HC.
45
I (2007) DMC 786.
46
A.I.R. 2012 Mad 62 (FB).
17 | P a g e
Poonam in case of minor married girl under Section 6(c) of the Hindu
Minority and Guardianship Act, 1956. Further, as per Section 13 of
the Hindu Minority and Guardianship Act, 1956, the welfare of
Poonam lies with Jitender, he being her lawfully wedded husband and
above that loves her.
55. Apart from this, the wishes of Poonam have to be given weightage,
she being the one who’s life is being decided. Herein, Poonam had
voluntarily joined Jitender and wants to stay with Jitender only and
don’t want to join her parents.

18 | P a g e
PRAYER
Wherefore in the light of facts of the matter, arguments advanced, and
authorities cited, it is most humbly prayed before the Hon’ble Court that
it may be pleased to hold, adjudge and declare-
 THAT JITENDER IS NOT LIABLE FOR KIDNAPPING UNDER SECTION
363 OF IPC, 1860.

 THAT MARRIAGE IS VOIDABLE AND NOT INVALID UNDER HINDU
MARRIAGE ACT, 1955.
 THAT JITENDER IS NOT LIABLE FOR RAPE UNDER SECTION 376 OF
IPC, 1860.
 THAT POONAM'S CUSTODY SHOULD BE GIVEN TO JITENDER.
And/or any other relief that this Hon’ble Court may be pleased to grant in
the interest of justice, Equity and Good conscience.
And in these premises the Petitioner as duty bound shall forever pray.
Sd/-
Counsels on behalf of the Petitioner

19 | P a g e

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BEFORE THE HON’BLE HIGH COURT OF DELHI

UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA AND

UPON THE SUBMISSION TO THE HON’BLE HIGH COURT OF

WRITTEN SUBMISSION ON THE BEHALF OF PETITIONER

Memorial on Behalf of the Petitioner

Memorial on Behalf of the Petitioner

Memorial on Behalf of the Petitioner

Memorial on Behalf of the Petitioner

Singh v. The State

1. INTERNATIONAL CONVENTION ON THE RIGHTS OF THE

2. THE INDIAN PENAL CODE,1860

Memorial on Behalf of the Petitioner

Jitender, hereafter referred to as the petitioner has approached the Hon'ble

Memorial on Behalf of the Petitioner

Memorial on Behalf of the Petitioner

Memorial on Behalf of the Petitioner

 Further, he falls under the exception of Section 375, both being

ISSUE4. WHETHER CONTENTION TO GET THE CUSTODY OF

Memorial on Behalf of the Petitioner

1. It is respectfully submitted that petitioner is not liable for the

guardianship of her parents and without her having been subjected to

going away with the accused, in such circumstances, no offence under

B. THAT MARRIAGE IS VOIDABLE AND NOT INVALID UNDER HINDU

fulfilled, marriage is voidable under Section 12(1)15. However,

expressly so stated. When the minimum age of bride and the

B.2. PCMA, 2006 has an overriding effect on HMA, 1955.

every child marriage, shall be voidable at the option of the contracting

between these two enactments. Moreover, PCM Act is a secular law

C. THAT JITENDER IS LIABLE UNDER SECTION 376 OF INDIAN PENAL

to consent, only when she freely agrees to submit herself, while in

37. A person commits criminal intimidation if he (1) threatens another

Memorial on Behalf of the Petitioner

D. THAT JITENDER’S CONTENTION TO GET THE CUSTODY OF HIS WIFE

v. Rajiv Baijal41, where the prime and often sole consideration or

an illegal custody of the respondent. Furthermore, the Hon’ble High

Memorial on Behalf of the Petitioner

 THAT JITENDER IS NOT LIABLE FOR KIDNAPPING UNDER SECTION

363 OF IPC, 1860.

Memorial on Behalf of the Petitioner

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