The Honourable Supreme Court of Neverland: Before

AURO
UNIVERSITY 4TH NATIONAL MOOT COURT COMPETITION

TEAM CODE: ANMCC 149
Before
THE HONOURABLE SUPREME COURT OF NEVERLAND
SLP No. ___/2018
STEPHANIE HUNT..…………………...…….…………………..…(APPELLANT NO. 1)

GOVERNMENT OF NEVERLAND……………………………….(APPELLANT NO. 2)
V.
STEVE ROGERS…………………………………………………..……..(RESPONDENT)
(FILED UNDER ART. 136 OF THE CONSTITUTION OF NEVERLAND)
With
SLP NO. ___/2018
AFFINITY FOILED REPRESENTED THROUGH FEVID MEDIA

LIFE……………………………………….……………………..………..(APPELLANT)
V.
STEVE ROGERS……………………………………………………….(RESPONDENT)
(FILED UNDER ART. 136 OF THE CONSTITUTION OF NEVERLAND)
-Memorial Filed on Behalf of Appellants-

II
AURO UNIVERSITY 4TH NATIONAL MOOT COURT COMPETITION

TABLE OF CONTENTS
Table of Contents………………………………………..……………………....................... II
Index of Abbreviations.…..………………………………………………………………….III
Index of Authorities…………………………………………………………………….……IV
Statement of Jurisdiction……………………………………………………………………VII
Statement of Facts………...………………………………………………………………..VIII
Statement of Issues…………………………………………………………………….…..…X
Summary of Arguments……………………………………………………………….….…XI
Arguments Advanced………………………………………………………………………XIII
1. Whether Internet infidelity amounts to adultery and cruelty as a
ground for divorce filed by Appellant No. 1? ………………………………1
2. Whether the hacked internet chats can be considered as valid
evidence? ……………………………………………………………………5
3. Whether the Hon’ble High Court can grant a writ of Mandamus
seeking removal of servers hosting, flashing or containing leaked
data?…....……………………………………………………………..……8
4. Whether compensation claims can be made against a non-state
entity only in an enforceable contract or under common law as
well?……………………………………………………………………..…15
Prayer………………………………………………………………………………XXXIII

MEMORIAL FOR APPELLANTS

III

INDEX OF ABBREVIATIONS
ABBREVIATION FULL FORM

¶ Paragraph
AIR All India Reporter
Anr. Another
Art. Article
CERT-In Computer Emergency Response Team India
EU European Union
HM Act, 1955 Hindu Marriage Act, 1955
Hon’ble Honorable
IC Act, 1872 Indian Contract Act, 1872
IE Act, 1872 Indian Evidence Act, 1872
IPC, 1860 India Penal Code, 1860
IT Act, 2000 Information Technology Act, 2000
No. Number
Ors. Others
Para Paragraph
Pg. Page
S. Section
u/S. Under Section
UN United Nations
v. Versus
Vol. Volume


IV

INDEX OF AUTHORITIES
Cases
A. Jayachandra v. AneelKaur, AIR 2005 SC 534

A. S. Puri v. K. L. Ahuja, AIR 1970 Delhi 214
Additional Secretary,Government of India and Ors., 1987 SC 1748
AmritLal v. Collector , C.E.C . Revenue, AIR 1975 SC 538
C F Coral Leisure Group Ltd v. Barnett [1981] ICR 503
Balwant Singh and Ors. v RD Shah 71 ITR 550 (1969)
Bani Muncharam v. Regina, ILR 32 Bom 581(589)
Bipin Chander Jaisinghbhai Shah v Prabhawati, AIR 1957 SC 176
Central Inland Water Transport Corporation Limited and Anr. v. Brojo Nath Ganguly and Anr.
[(1986) IILLJ 171 SC]
Dastane v Dastane AIR 1975 SC 1534
Diggambar Khattar v Union of India2013 CriLJ 2011
Emperor v. Allahdad Khan(1913) ILR 35 All 358
G.V.N. KameswaraRao v. G. Jabilli (2002) 2 SCC 296
Gherulal Parakh vs. s Maiya and Ors., AIR 1959 SC 781
Gollins v Gollins (1964) AC 644
Google Inc. v.Agencia Espanola de Proteccion de Datos, Mario Costeja Gonzalez ,(Court of Justice
of EU, Luxembourg,Case C- 131/12)
Hall v Herbert (1993) 2 SCR 159
Holman v Johnson (1775) 1 Cowp 341
K.S. Rashid and Sons v. Income Tax Investigation Commission AIR 1954 SC 207
K.S. Venkataraman and co. (P) Ltd. v. State of Madras AIR 1966 SC 1089
K.V. Ramakrishnaiah Setty & Anr. V. State of Mysore &Anr AIR 1967 SCR (2) 70
KaSteldoris Sylemdieh v. Skeland Sanglyne AIR 1986 Gau 24
Kallan v KallanAIR 1933 Lah 728
Kamini Kumar Daschaudhary v. State of West BengalAIR 1972 SC 2060
Kashi v. Bapu 1940 Nag 305(FB)
Kerala v. Alasserry Mohammed AIR (1978) SC 933
Kuruma v. Queen [1955] AC 197
M/s. R.K. Productions Pvt. Ltd. & Creative Commercials Media & Entertainment Ltd. v. Bharat
Sanchar Nigam Limited &ors. C.S. (OS) 208/ 2012 (June 22, 2012), The High Court of Madras.
MegrajPatodia v. R.K. Birla AIR 1971 SC 1295
Miller v Minister of Pensions (1947) 2 All ER 372
N. Sri Rama Reddy v. V.V.Giri (1971) AIR 1162
Nathusa v. Munir AIR 1943Nag 129
Nivedita Sharma v. Cellular Operators Assn. Of India (2011) 14 SCC 337
Commissioner of Income Tax of Income Tax &ors. V. Chhabil Das Agarwal,CA no. 6704 of 2013, SC
Parveen Mehta v. Inderjit Mehta, Appeal (civil) 3930 of 2002
People v Miller 2003 WL 2146
Pooran Mal Etc v Director Of Inspection AIR 1974 SC 348
Pushpadevi M. Jatia v. M.L. WadhavanAIR 1987 SC 1156
R v Leatham (1861) 8 Cox CC 498


V

R v. Maqsud Ali[1966] 1 QB 688

R.M. Malkani v. State of MaharashtraAIR 1973 SC 157
RajanRavankar v Shobha AIR 1995 Bom 246
RamchandJagdishchand v. Union of India, AIR 1963 SC 563
RanjeetKaur v Surendra Singh Gill, AIR 2012 MP 74
Reynolds Rajmani v Union of India, AIR 1982 SC 1261
Russel v Russel, 1897 A.C. 395
S.I. Syndicate v. Union of India, AIR 1975 SC 460
Samar Ghosh v Jaya Ghosh (2007) 4 SCC 114
Sangram Singh v. Election Tribunal, AIR 1955 SC 425
Saroj Kumar v. KalyanKanta, AIR 1980 Cal 374, per BN. Maitra J.,
SavitriPandey v. Prem Chandra Pandey, (2002) 2 SCC 73
Sheldon v. Sheldon, [1966] 2 All E.R. 257 (259)
Shobha Rani v MadhukarReddi, AIR 1988 SC 121
ShyamLal Sharma v. State of Madhya Pradesh, AIR (1972) SC 886
Sonu v State of HaryanaAIR 2017 SC 3441
State (NCT of Delhi) v. NavjotSandhu 2005 (11) SCC 600
State of Haryana & Anr. v. ChananLal, AIR 1976 SC 1654
State of Uttar Pradesh v. Mohd. Nooh,AIR 1958 SC 86
Swayamprabha v. Chandrasekhar AIR 1980 Cal 374
ThansinghNathmal v. Supdt of Taxes, AIR 1964 SC 1419
Umesh Kumar v State of Andhra Pradesh 2013(11) SCALE 28
Union of India v. TR Varma, AIR 1957 SC 882
V Bhagat v. D Bhagat, (1994) 1 SCC 337
Vinod Kaushik v Madhunika Kaushik, WP (C) 160/2012 dtd 27/01/2012
Vodafone India Ltd. v. R.K. Productions Pvt. Ltd, 2012 Indlaw MAD 2837
Wilson v. Carnley[1908] 1 KB 729(740)
YusufalliEsmailNagree v. State of Maharashtra, (1968) AIR 147
Statutes
Constitution of Neverland, 1950

Hindu Marriage Act, 1955
Indian Contract Act, 1872
Indian Evidence Act, 1872
Indian Penal Code, 1860
Information Technology Act, 2000
Rules
Information Technology (Reasonable Security Practices and Procedures and sensitive

Personal Data or Information), Rules, 2011
CERT-In Rules


VI

Dictionaries
Black’s Law Dictionary, 10th Ed., West Group (2014)

P Ramanath Aiyar , The Law Lexicon, 3rd Ed., Lexis Nexis
Books
Banerjee, B P J., ‘Writ Remedies’, 7th Ed., Lexis Nexis, (2016)

Basu, DD, ‘Introduction to the Constitution of India’, 22nd Ed., Lexis Nexis (2015)
Beatson J, ‘Anson’s Law of Contract’, 29th Ed., Oxford University Press (2010)
Carey, Peter, ‘Data Protection’, 2nd Ed., Oxford University Press (2004)
Diwan, Paras, ‘Modern Hindu Law’, Allahabad Law Agency (2013)
Jain, M P, ‘Indian Constitutional Law’, 7th Ed., Lexis Nexis (2016)
Krishnan, B N J., ‘Sampath’s Hindu Law’, Volume I, Indian Institute of Legal Literacy
(2015)
Mali,Prashant, ‘Cyber Law & Cyber Crimes’, 2nd Ed., Taj Press (2015)
Mulla, Dinshaw, ‘Mulla Hindu Law’, 22nd Ed., Lexis Nexis (2016)
Pollock et all, ‘The Indian Contract Act and Specific Relief Act’,15th Ed., Lexis Nexis (2017)
Rogers, WVH, ‘Winfield and Jolowicz on Tort’, 18th Ed., Sweet and Maxwell (2010)
Ryder, Rodney, ‘Guide to Cyber Laws’, 2nd Ed., Wadhwa & Co. (2005)
Saharay, H K, ‘Dutt on Contract’, 9th Ed., Eastern Law House (2000)
Sarkar, Sudipto, ‘Law of Evidence’, 19th Ed., Lexis Nexis (2016)
Singh, Avatar, ‘Contract and Specific Relief’, 11th Ed., Eastern Book Company (2013)
Singh, G P, ‘The Law of Torts’, 26th Ed., Lexis Nexis (2014)
Thakker, C K, ‘V G Ramachandran’s Law of Writs’, 4th Ed., Eastern Book Company (1990)
Weikers, Ronald, ‘Data Security and Privacy Law’, Volume 2, Thomson Reuters (2011)
Online Sources
www.westlawindia.com
www.scconline.com
www.prsindia.org
www.manupatra.com
Others
EU Data Protection Directive 95/46/EC

National Cyber Security Policy, 2013


VII

STATEMENT OF JURISDICTION
The Appellants approach the Hon’ble Supreme Court under Article 136 1 of the Constitution
of Neverland to appeal against the order of the Hon’ble High Court.

1Art. 136. Special leave to appeal by the Supreme Court
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to
appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by
any court or tribunal in the territory of India
(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order passed or made by any
court or tribunal constituted by or under any law relating to the Armed Forces


VIII

STATEMENT OF FACTS
¶1. On 27th November 2016, in the pluralistic country of Neverland, Logan, a journalist,
anonymously received a list of links, directing him to caches of data that had been stolen
from the servers of Fevid Media Limited (FML), a registered company under the Companies
Act, 2013 that ran a notorious, widely publicized web service called Affinity Foiled (AF)
since 2010. AF is a dating site with an explicitly admitted intention of helping married people
have affairs with each other. AF used the slogan “Life is short, have an affair”.
¶2. Logan ran a story on the same on his blog, which was picked up by prominent media
agencies. A group called ‘Impact Team’ thereafter claimed responsibility and then threatened
to release a full database of customers of AF, which was so done on 12th January 2017.
Thousands of formerly anonymous people, including prominent public figures, suddenly had
their private details spilled out in the Internet.
¶3. One of the many people affected was Steve Rogers, a renowned lawyer in the Supreme
Court of Neverland. He was married to Stephanie Hunt, an artist and a social worker. They
got married in 2006 under the HM Act, 1955 after living in for seven (7) years, excluding
their college relationship of four (4) years.
¶4. Rogers had signed up on AF in December 2015 by paying Rs. 500 through his credit card
and used AF to correspond with other women. He had taken elaborate care and precaution so
as to hide his illicit activities by way of using one of the 6 browsers on his laptop, that was
kept in his office at home, to access Affinity Foiled, a secret email ID and an incognito
username ‘Captain America’. He had also uploaded a photograph with a view to get many
responses.
¶5. Rogers, through AF, had been communicating with someone who lived in the north of
Neverland. She was in a stable marriage and both of them spoke a lot on the phone. Rogers
valued their relationship, as there was sexual element to the affair. Rogers claimed that they
had never slept together.
¶6. A hacker by the name AFLolz dug through the leaked database and posted screenshots of
scandalous and incriminating emails and personal messages on his Twitter and Facebook


IX

handle including those of Rogers which was picked up media agencies. Stephanie, thus,
found out about his affairs and on confrontation she received a threat to commit suicide from
Rogers.
¶7. Stephanie thereafter filed for divorce on the grounds of cruelty and adultery in the lower
court, on the basis of evidence of the leaked chats. The lower court granted her divorce.
¶8. Rogers filed an appeal in the Hon’ble High Court, challenging the decision of lower court
of granting divorce. He also filed a writ petition for Mandamus directing the Government to
take down the servers hosting, flashing or republishing the leaked data. The Hon’ble High
Court granted the writ of Mandamus and reversed the judgment of the lower court, declaring
that divorce would not be granted as the evidence was unethically extracted and hence
inadmissible.
¶9. Aggrieved by the judgment, Stephanie filed an appeal by Special Leave Petition in the
Hon’ble Supreme Court, challenging the Hon’ble High Court’s decision.
¶10. In a parallel move, Rogers sued AF for damages. The lower court ordered the damages
to be paid on the basis that there was a contract for consideration to keep the information
confidential.
¶11. AF filed an appeal in the Hon’ble High Court against the decision of the lower court
relying on the judgment in Writ petition that the consideration paid was for doing something
illegal and hence the contract was void. The Hon’ble High Court however upheld the order of
the lower court saying that contract was enforceable and, from another viewpoint, AF had
every reason to protect private information received in a fiduciary capacity, even without a
contract. Hence AF was held liable to pay damages.
¶12. Aggrieved by the judgment of the High Court, AF filed an appeal in the Hon’ble
Supreme Court challenging the decision of the Hon’ble High Court.
¶13. Both these appeals are now clubbed together and pending before the Hon’ble Supreme
Court.


X

STATEMENT OF ISSUES
1. WHETHER INTERNET INFIDELITY AMOUNTS TO ADULTERY AND

CRUELTY AS A GROUND FOR DIVORCE FILED BY APPELLANT NO. 1?
2. WHETHER THE HACKED INTERNET CHATS CAN BE CONSIDERED AS

VALID EVIDENCE?
3. WHETHER THE HON’BLE HIGH COURT CAN GRANT MANDAMUS

SEEKING REMOVAL OF SERVERS HOSTING, FLASHING OR CONTAINING
LEAKED DATA?
4. WHETHER COMPENSATION CLAIMS CAN BE MADE AGAINST A NON-

STATE ENTITY ONLY IN AN ENFORCEABLE CONTRACT OR UNDER
COMMON LAW AS WELL?


XI

SUMMARY OF ARGUMENTS
1. WHETHER INTERNET INFIDELITY AMOUNTS TO ADULTERY AND

It is most respectfully averred that in the present case, Internet infidelity amounts to adultery
and cruelty as a ground for divorce filed by Appellant No. 1. Firstly, the Respondent caused
mental pain and suffering to Appellant No. 1. Secondly, the appellant can reasonably
apprehend mental injury. Thirdly, considering the marital norms of the society of Neverland,
the Respondent can be said to have caused mental cruelty. Fourthly, the preponderance of
probabilities establishes that the Respondent has committed adultery.
2. WHETHER THE HACKED INTERNET CHATS CAN BE CONSIDERED AS

VALID EVIDENCE?
It is humbly advocated that the hacked Internet chats can be considered as valid evidence.
Firstly, the evidence submitted is relevant to the factual matrix of the case. Secondly, there is
no statutory bar to admitting illegally procured evidence. Thirdly, the hacked Internet chats
are being used only for the purpose of evidence in a court proceeding and not for any illegal
or immoral purpose. Fourthly, the evidence cannot be rendered inadmissible merely due to
non-adherence to statutory provisions of S. 65B of the IT Act, 2000.
3. WHETHER THE HON’BLE HIGH COURT CAN GRANT A MANDAMUS

SEEKING REMOVAL OF SERVERS HOSTING, FLASHING OR CONTAINING
LEAKED DATA?
It is humbly averred that in the present factual matrix of the case, firstly, Hon’ble High Court
cannot issue a mandamus as Appellant No. 2 did not refuse to perform their duty nor was
there a demand for the same. Secondly, the Hon’ble High Court has not exercised its duties in
a just and reasonable manner as it cannot interfere under Art. 226 if statutory remedies are
available. Thus, availability of statutory remedies becomes a bar to Mandamus and thus,
Hon’ble High Court should have refused to grant the Writ of Mandamus.


XII

4. WHETHER COMPENSATION CLAIMS CAN BE MADE AGAINST A NON-

STATE ENTITY ONLY IN AN ENFORCEABLE CONTRACT OR UNDER
COMMON LAW AS WELL?
It is respectfully advocated that firstly, the parties entered into the contract for an immoral
purpose and hence is void and unenforceable. Secondly, compensation claims cannot be made
under common law as the conduct of Respondent clearly defies the doctrine of ‘Ex turpi
causa non oritur actio’. Thus, the contract being void and immoral, the Respondent cannot be
granted compensation when his own hands are tainted with immorality.


1

ARGUMENTS ADVANCED
ISSUE 1: WHETHER INTERNET INFIDELITY AMOUNTS TO ADULTERY AND

¶1. The Taittiriya Samhita states that “half is she of the husband that is wife.”2 From this
notion of unity of personality of husband and wife, mutual fidelity of husband and wife is
implied. 3It is submitted that Internet infidelity by the Respondent amounts to mental cruelty
and adultery within the meaning of Sec 13(i)(a) of the HM Act, 1955. 4
1.1] Internet Infidelity amounts to mental cruelty as a ground for divorce
¶2. The term ‘cruelty’ has not been defined in the HM Act, 1955 and has a very wide
interpretation. The accepted legal meaning is such conduct that causes damage to life, limb,
or health (bodily or mental) or to give rise to a reasonable apprehension of danger.5 Thus,
both physical and mental cruelty is a ground of divorce under the HM Act 1955.
¶3. It is submitted that there is no limit to the kind of conduct that may constitute cruelty.
New type of cruelty may crop up in any case depending upon human behavior. 6In Reynolds
Rajmani v Union of India7 the Hon’ble Supreme Court held that the courts must give the
fullest amplitude of meaning to the provision of cruelty as a ground for divorce. However, it
must be a meaning that the language of the section is capable of holding.
¶4. Accordingly, it is submitted that Internet infidelity, as committed by the Respondent,

would amount to mental cruelty under S. 13(1)(ia) of the HM Act, 1955 and thus, divorce
must be granted.

2TaittiriyaSamhita, III, 1, 2, 57
3
Diwan, Paras, ‘Modern Hindu Law’, Allahabad Law Agency, Pg. 64
4
Sec 13(1)(ia) of Hindu Marriage Act, 1955: “Any marriage solemnized, whether before or after the
commencement of the Act, may, on a petition presented by either the husband or the wife, be dissolved by a
decree of divorce on the ground that the other party- (ia)- has, after the solemnization of the marriage, treated
the petitioner with cruelty.”
5
Russel v Russel1897 A.C. 395, Kallan v Kallan AIR 1933 Lah 728
6
Sheldon v. Sheldon, [1966] 2 All E.R. 257 (259)
7
AIR 1982 SC 1261


2

¶5. It is submitted that Appellant No. 1 was subject to mental pain and suffering. As
defined in V Bhagat v. D Bhagat, 8mental cruelty in Section 13(1)(ia) is that conduct which
inflicts upon the other party such mental pain and suffering and must be of such nature that
parties cannot be reasonably expected to live together. In Ranjeet Kaur v Surendra Singh
Gill, 9 the Hon’ble High Court stated that mental cruelty would be a state of mind that may
exist in the psyche or mind of the wronged spouse which may produce feelings of anguish or
frustration at the existing state of matrimonial relation.
¶6. Appellant No. 1, upon finding that her Respondent husband used Affinity Foiled as a
platform to have sexual and illicit relations with them, was pained and agonized. Appellant
No. 1, as would any prudent person, was in a state of mind that caused anguish and
frustration at the existing state of matrimonial relations. She felt an apprehension of mental
injury to her fathomable equation, which caused mental agony and was highly intolerable.
¶7. It is averred that the acts of the Respondent cause reasonable apprehension of harm
and mental injury to Appellant No. 1. In the case of Dastane v Dastane10 it has been held
that where an allegation of cruelty is made, the enquiry has to be whether the conduct
charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable
apprehension that it will be harmful or injurious for him to live with the respondent. 11
¶8. In the present case Appellant No. 1 cannot be reasonably expected to live with her
Respondent husband upon having discovered the fact that he, for over 2 years of their marital
relationship was involved in illicit relationships with other women. The Respondent has
betrayed the trust of his wife who he had been together with for over 11 years. He has caused
her immeasurable mental pain. His acts are of such nature as would provide a reasonable
doubt in the mind if the appellant whether it would repeat. The conduct of the Respondent
thus, is grave and substantial to warrant the description of being cruel12 so much so that
Appellant no. 1 cannot be expected to live with him anymore.

8
(1994) 1 SCC 337
9
AIR 2012 MP 74
10
AIR 1975 SC 1534
11
RajanRavankar v Shobha AIR 1995 Bom 246, SavitriPandey v. Prem Chandra Pandey, (2002) 2 SCC 73;
Parveen Mehta v. Inderjit Mehta, Appeal (civil) 3930 of 2002
12
Gollins v Gollins (1964) AC 644, A. Jayachandra v. AneelKaurAIR 2005 SC 534


3

¶9. In Shobha Rani v Madhukar Reddi13 it was observed that where the conduct complained
of itself may be bad enough and per se unlawful or illegal, it would amount to cruelty. It is
submitted that u/S. 497 of IPC, 1860 adultery is an offence. Thus, in the present case, the
Respondent having committed adultery via Affinity Foiled, has subject Appellant No. 1 to
mental cruelty.
¶10. The question of mental cruelty has to be considered in the light of the norms of
marital ties of the particular society to which the parties belong, their social values, status
and environment in which they live 14and on basis of customs, traditions of the parties. 15
¶11. In Hindu law, marriage is treated as a samskara or a sacrament. It is the last of the 10
sacraments enjoined by the Hindu Religion for regeneration of men and obligatory in case of
every Hindu who does not desire to adopt the life of a sanyasi. It is an important junction of
three significant duties i.e. social, religious and spiritual. In Hinduism, the husband is also
known as ‘bhatri’, because he is to support his wife and ‘pati’ because he is to protect her.
The Respondent in the present case has only caused her harm and failed to protect her being
involved in illicit relationships himself.
¶12. Having regard to the sanctity and importance of marriages in the country of Neverland,
it is submitted that the Hon’ble High Court was incorrect in reversing the divorce decree of
the lower court.
¶13. In the present case, the Respondent’s act of Internet infidelity caused Appellant No. 1
mental pain and suffering. She cannot be expected to live with the Respondent henceforth.
Internet infidelity also is against the values and norms of the pluralistic, religious country of
Neverland. In such a scenario, the marriage has become a fiction and ought to be severed.16

13
AIR 1988 SC 121
14
A. Jayachandra v. AneelKaurAIR 2005 SC 534, V Bhagat v. D Bhagat, (1994), 1 SCC 337
15
G.V.N. KameswaraRao v. G. Jabilli (2002) 2 SCC 296
16
Samar Ghosh v Jaya Ghosh (2007) 4 SCC 114


4

1.2] Respondent has committed adultery
¶14. The offence of adultery as a ground for divorce need not be proved beyond reasonable
doubts. 17 The word ‘satisfied’ under meaning of s. 23 of HM Act, 1955means satisfied on a
preponderance of probabilities.18The standard of proof required to establish adultery was
proof on a preponderance of probabilities and not proof beyond a reasonable doubt19 since
criminal law analogies are inapplicable in divorce proceedings. 20Thus, the fact of adultery
has to be inferred from the totality of circumstances that lead to it by fair inference and as a
necessary conclusion.21
¶15. In the case of Bipin Chander Jaisinghbhai Shah v Prabhawati 22the Hon’ble Supreme
Court held that the very fact that a married girl was writing amorous letters to a man other
than her husband was reprehensible and easily capable of furnishing good grounds to the
husband for suspecting the wife's fidelity and that the same cannot be characterized as
platonic love.
¶16. In the present case, the screenshots of the Respondent’s incriminating personal messages
provide enough evidence so as to infer commission of adultery. It is brought to light that the
respondent had taken elaborate care and precaution so as to hide his illicit activities from his
wife for over 2 years by way of using one of the 6 browsers on his laptop to access Affinity
Foiled, a secret email ID and a unidentifiable name. He had also uploaded a photograph with
a view to get many responses. 23There is a high degree of probability, 24 in the light of these
facts that adulterous acts were committed.

17
N.G. Dastane v. S. Dastane AIR 1975 SC 1534, Saroj Kumar v. KalyanKanta, AIR 1980 Cal 374, per BN.
Maitra J., Swayamprabha v. Chandrasekhar AIR 1980 Cal 374, per BN. Maitra J, Shobha Rani v. Madhukar
Reddy, AIR 1988 SC 121
18
Ibid.
19
Swayamprabha v. Chandrasekhar AIR 1980 Cal 374, per BN. Maitra, J
20
Ka Steldoris Sylemdieh v. Skeland Sanglyne, AIR 1986 Gau 24
21
A. S. Puri v. K. L. Ahuja, AIR 1970 Delhi 214
22
(1957) AIR 176, (1956) SCR 838
23
Moot Proposition, Page 2
24
Miller v Minister of Pensions (1947) 2 All ER 372


5

ISSUE 2: WHETHER THE HACKED INTERNET CHATS CAN BE CONSIDERED

AS RELEVANT EVIDENCE?
¶1. It is submitted that the hacked Internet chats are admissible as relevant evidence.
Electronic evidence is admissible in any court of law. 25It is a settled position of law that that
if a document is procured by improper or illegal means, there is no bar to its admissibility if it
is relevant and its genuineness is proved.26It is submitted that, in the factual matrix of the
case, the hacked screenshots are relevant and genuine. Thus, they are admissible as relevant
evidence.
¶2. Appellant No. 1 has not extracted or procured the screenshots illegally. She merely has
used data that is accessible by the public. However, in the light that the public access of such
data was done illegally, it is submitted that the incriminating screenshots, although illegally
procured and published by one AFLolz, 27are admissible as evidence. It does not matter how
it has been obtained. 28 If you steal it even, it would be admissible. 29
¶3. Evidence, which has been obtained by improper and illegal means, would not become
inadmissible in each and every circumstance. In a civil suit or proceedings also if improperly
or illegally procured evidence is found relevant it could be taken into consideration for
adjudicating an issue involved unless the evidence has a prejudicial effect which surpasses
the evidential value or where the larger public interest of the State is more important than the
question at hand. 30
¶4. With respect to the factual matrix of this case, it is submitted that such exceptions do not
apply. The screenshots of the Respondent’s conversations do not have a prejudicial effect
against the Respondent so much so as to surpass its evidential value. They cannot be rendered
prejudicial merely because they are sexually explicit. 31Furthermore, admission of the same
does not forsake the larger interest of the public as it concerns only the Respondent. The

25
S. 3 of IE Act, 1872
26
Umesh Kumar v State of Andhra Pradesh 2013(11) SCALE 28, Diggambar Khattar v Union of India 2013
CriLJ 2011, Balwant Singh and Ors. v RD Shah 71 ITR 550 (1969)
27
Moot proposition, Pg. 4
28
Umesh Kumar v State of Andhra Pradesh 2013(11) SCALE 28
29
R v Leatham, (1861) 8 Cox CC 498
30
MegrajPatodia v. R.K. Birla AIR 1971 SC 1295, Pushpadevi M. Jatia v. M.L. Wadhavan AIR 1987 SC
1156, Additional Secretary,Government of India and Ors., 1987 SC 1748
31
People v Miller 2003 WL 2146


6

screenshots are capable of affording reasonable presumption as to facts in issue or the

principle matters in dispute. 32
¶5. It is also submitted that there is no statutory bar in admitting such evidence. Unless
there is an express or implied prohibition in the Constitution or other law, evidence obtained
as a result of illegal search or seizure is not liable to be shut out. Neither the constitution nor
any other statute places any embargo on admittance of illegally procured evidence.33Thus,
exclusion of evidence obtained on an illegal procurement cannot be spelt out by invoking the
Constitution. 34
¶6. It is further submitted that the evidence is admissible although procured without the
consent or knowledge of the Respondent. In R.M. Malkani v. State of Maharashtra35the
appellant was the Coroner of Mumbai and was trying to obtain illegal gratification from an
honest doctor, whom he planned to implicate in a case involving the negligent death of a
patient. The conversation was recorded without the knowledge of the appellant and charges
were filed against him on the basis of the incriminating statements that he had made. The
Hon’ble Apex Court held that the illegally obtained evidence would be admitted in Court
since the eavesdropper neither subjects the person to duress nor interferes with his privacy.
¶7. In R v. Maqsud Ali 36 two persons suspected of murder went voluntarily with the Police
Officers into a room where, unknown to them, there was a microphone connected with a tape
recorder in another room. When they were left alone, they had a conversation during which
some incriminating remarks were made. The Court decided that the tape-recording of the
incriminating evidence had to be admitted as evidence.
¶8. Therefore, drawing a similarity with the abovementioned authorities, it is submitted that
while procuring such evidence, the Respondent was not subject to any duress. The
screenshots were put up on the Internet by one AFLolz, which Appellant No. 1 merely
accessed. Moreover, since the screenshots being used as evidence were already available in
the public domain, Appellant No. 1 cannot be said to violate his right to privacy. Lack of

32
Sarkar, Law of Evidence, Pg 41.
33
State (NCT of Delhi) v. NavjotSandhu 2005 (11) SCC 600
34
Pooran Mal Etcvs Director Of InspectionAIR 1974 SC 348
35
(1973) AIR 157;Yusufalli Esmail Nagree v. State of Maharashtra, (1968) AIR 147
36
[1966] 1 QB 688; N. Sri Rama Reddy v. V.V.Giri (1971) AIR 1162


7

consent or knowledge of procurement of data, additionally, is no bar to admission of

evidence so collected.
¶9. It is asserted that the present use of illegally extracted screenshots renders it
admissible. In Vinod Kaushik v Madhunika Kaushik,37 the respondent hacked into the e-
mail accounts and chats of her husband and father in law only to produce evidence before the
court. It was held that the illegally procured data was used only to serve as evidence in a
court proceeding and not for any other purpose such as to malign or harm the opposing party
and thus the appellants were not entitled to any compensation.
In tune with the above decision, it is submitted that Appellant No. 1 is using the illegally
procured screenshots only for the purpose of adducing evidence before the Hon’ble courts
and not for any other purposes, much less those mischievous and deleterious.
¶10. It is submitted that the hacked screenshots are relevant evidence to the present case.
In the American case of Knapp v. State, 38 it has been stated that the determination of the
relevancy of a particular item of evidence rests on whether proof of that evidence would
reasonably tend to help resolve the primary issue at hand. The screenshots incriminate the
Respondent of infidelity and thus cruelty on Appellant No. 1. They are, thus, capable of
affording any reasonable presumption as to facts in issue or the principle matters in dispute.
¶11. The screenshots adduced as evidence are secondary evidence. 39 Thus, procedure laid
down under 65B of IE Act, 1872 is required to be followed. However, they cannot be
rendered inadmissible for lack of adherence to statutory procedure.
¶12. In the locus classicus case of Kuruma v. Queen, 40 a search was conducted by two
Police Officers who were not authorised under the law to do so. In the search, some
ammunition was found in the unlawful possession of the appellant. It was held the finding of
the ammunition could not be so shut out because it was a relevant piece of evidence on a
charge for unlawful possession. Similarly, where illicit articles had been recovered in a
search without warrant, the owner of the house was not acquitted for want of evidence

37
WP (C) 160/2012 dtd 27/01/2012
38
Supra Note 32.
39
S. 65 of IE Act, 1872
40
[1955] AC 197


8

although u/s. 63 of the United Provinces Excise Act 1910 a warrant was required to be
issued. 41In State of Kerala v. Alasserry Mohammed 42 the Hon’ble Supreme Court had held
that failure to comply strictly with the statutory provisions, by the Food Inspector, would not
vitiate the trial and conviction of the accused. Similarly, in Shyam Lal Sharma v. State of
Madhya Pradesh, 43it was held that even if the search and seizure is illegal being in
contravention of Section 165 that provision does not have any effect in its application to the
subsequent steps taken in the investigation.
¶13. More importantly, in State of NCT Delhi v Navjyot Singh 44 it was held that irrespective
of the compliance with requirements of Section 65B, there is no bar in adducing secondary
evidence. The same was followed in the case of Sonu v State of Haryana 45.
¶14. Therefore, it is submitted that the screenshots of the Repondent’s conversation with
other women as made available by AFLolz is relevant evidence.
ISSUE 3: WHETHER THE HON’BLE HIGH COURT CAN GRANT A MANDAMUS

SEEKING REMOVAL SERVERS HOSTING, FLASHING OR CONTAINING
LEAKED DATA?
¶1. It is humbly submitted that the Hon’ble High Court has an extraordinary jurisdiction
conferred by Art 226 to issue the Writ of Mandamus. As per the general rule, Mandamus
cannot be issued unless there is a demand from the party seeking the enforcement of such a
writ and the same is met with a refusal.46[3.1] It must also be noted that mandamus cannot be
granted where there is an alternative remedy which is equally convenient and effectual.[3.2]
[3.1] Demand and Refusal are Prerequisite conditions for granting writ of Mandamus
¶2. As per the general rule of Demand and Refusal there are two conditions to be complied
for granting Mandamus, i.e. party against whom the Mandamus is sought should have refused

41
Emperor v. Allahdad Khan,(1913) ILR 35 All 358
42
AIR 1978 SC 933
43
AIR 1972 SC 886
44
(2005) 11 SCC 600
45 AIR 2017 SC 3441
46
Page no. 388, V.G. Ramachandran’s Law of Writs, 4th edition, 1990; Halsbury’s laws of England (3rd
Edition),Vol 13, p. 106; AmritLal v. Collector , C.E.C . Revenue, AIR 1975 SC 538 (548)


9

to act and the existence of demand of that which the party is seeking to enforce must be
proved by an evidence. With regard to the factual matrix of the present case, Appellant No. 2
has neither refused to strike down the server nor any demand was there to fulfill the same and
hence, in all probabilities Appellant No. 2 has been arbitrarily brought into the matter without
any intervention from their end. Since, the Appellant No. 2 did not prima facie refuse to
perform its duty nor there was a demand to perform the same, hence; relying upon the
aforementioned grounds, the writ of Mandamus cannot be issued against Appellant No. 2.
For the grant of Mandamus against an administrative authority the affected individual must
demand justice and only on refusal he has a right to approach the Court.
¶3. In S.I. Syndicate v. Union of India47, the Hon’ble Supreme Court has opined the
following statement of law in this regard:
"As a general rule the order will not be granted unless the party complained of has known
what it was he was required to do so that he had the means of considering whether or not he
should comply and it must be shown by evidence that there was a distinct demand of that
which the party seeking the mandamus desires to enforce and that demand was met by a
refusal."
¶4. Thus, a party seeking enforcement of Mandamus must primarily call upon the authority
concerned to do justice by performing its legal obligation and show that it has refused or
neglected to carry it out within a reasonable time before applying to a court for mandamus
even where the alleged obligation is established. Therefore, since the grounds for demand and
refusal were not met with, the Hon’ble Apex Court refused to grant mandamus in the
aforementioned case.
¶5. While construing the nature of mandamus, the Hon’ble Apex Court in the case of State of
Haryana & Anr. v. Chanan Lal 48 held that:
“Any petitioner who applied for a writ or order in the nature of a mandamus should, in
compliance with a well known rule of practice, ordinarily, first call upon the authority
concerned to discharge its legal obligation and show that it had refused or neglected to carry

47
S.I. Syndicate v. Union of India, AIR 1975 SC 460
48
State of Haryana &Anr. V. ChananLal, AIR 1976 SC 1654;Kamini Kumar Daschaudhary v. State of West
Bengal,AIR 1972 SC 2060


10

it out within a reasonable time before applying to a court for such an order even where the
alleged obligation is established.”
¶6. Thus in the present factual matrix of the case, since Appellant No. 2 has been whimsically
counted in as party to the matter, as a consequence, the burden of proof lies on the
Respondent to show that Appellant No. 2 has refused to discharge its duties within a
reasonable period of time.
¶7. It is also contended that reckoning upon another general rule, the writ of mandamus
cannot be issued commanding an authority to show indulgence. It was opined by the Supreme
Court that the State of Mysore has shown some indulgence to the batch of 63 persons, which
was ad hoc but a writ of mandamus cannot be issued on the same grounds.49 Therefore, in the
present case, failure to protect the data was vested with Appellant No. 3 and a Writ of
Mandamus cannot be issued commanding Appellant No. 2 to show ad hoc indulgence as it
leads to grave miscarriage of justice and will be in conflict with the Constitution of
Neverland. In light of the above, it is most humbly requested before this Hon’ble Court to set
aside the Petition raised against Appellant No. 2.
[3.2] Existence of Alternative Remedy: A bar to Mandamus
¶8. It is contended that the remedy provided under Art. 226 of the constitution is a
discretionary remedy and the High Court always has discretion to refuse to grant such a relief
in certain circumstances even though a legal right might have been infringed. Thus, in case of
availability of an Alternative and equally efficacious remedy a litigant should pursue that
remedy and may not invoke extraordinary jurisdiction of High Court to issue a prerogative
writ. Taking into account such considerations the High court may refuse to exercise its
jurisdiction.
¶9. Relying upon a plethora of cases, this Hon’ble Apex Court has held that, by assuming
jurisdiction under Art. 226 High Court cannot entertain a writ petition where an efficacious
Alternative remedy provided by a statute can be sought for redressal of grievances and
whereby such a statutory forum is created by law for redressal, a writ petition should not be

49
K.V. RamakrishnaiahSetty& Anr. v. State of Mysore &Anr, AIR 1967 SCR (2) 70; Ramchand
Jagdishchand v. Union of India, AIR 1962 3 SCR 72


11

entertained ignoring the statutory dispensation.50 Also, the constitution benches of this court
have held that though Art. 226 confers wide powers in the matter of issuing of writs on the
High court, the remedy of writ is absolutely discretionary in character. If the High court is
satisfied that the aggrieved party can have adequate or suitable relief elsewhere, it can refuse
to exercise its jurisdiction.51
¶10. In Union of India v. T.R. Varma52 the Supreme Court observed that:
“It is well settled that when an alternative and equally efficacious remedy is open to a
litigant, he should be required to pursue that remedy and not invoke the special jurisdiction
of the High Court to issue a prerogative writ. It is true that the existence of another remedy
does not affect the jurisdiction of the court to issue a writ: but...”the existence of an adequate
legal remedy is a thing to be taken into consideration in the matter of granting writs .”
¶11. Thus, with regard to factual matrix of the case, when an alternative remedy exists it will
be a sound exercise of discretion to refuse to interfere in a petition under Article 226 and
avail the remedy provided under a statute. Thus, the High court by issuing the writ of
Mandamus in presence of a statutory remedy has failed to exercise its duties in a reasonable
and just manner. Accounting to the above, it is humbly requested before this Hon’ble Apex
Court to quash the Writ of Mandamus and direct the Respondent to seek adequate remedy
available under the statute.
¶12. Furthermore, it is submitted that the Respondent ought to have exhausted statutory
remedies. In case of statutory remedies, where a statute creates a right or liability and also
prescribes the remedy or procedure for the enforcement of that right or liability, resort must
be made to the said statutory remedy before invoking extraordinary and prerogative writ
jurisdiction of a High Court under Art. 226.It is also opined by Justice V.B. Gupta that where
hierarchy of appeals is provided by the statute, aggrieved party must exhaust the statutory
remedies before resorting to writ jurisdiction for relief53.

50
Commissioner of Income Tax & ors. V. Chhabil Das Agarwal, civil appeal no. 6704 of 2013,SC
51
K.S. Rashid and sons v. Income Tax Investigation commission , AIR 1954 SC 207; Sangram Singh v.
Election Tribunal, AIR 1955 SC 425; Union of India v. TR Varma, AIR 1957 SC 882; State of UP v. Mohd.
Nooh AIR 1958 SC 86; K.S. Venkataraman and Co. (P) Ltd. v. State of Madras AIR 1966 SC 1089
52
AIR 1957 SC 882: (1958) SCR 499
53
Nivedita Sharma v. Cellular Operators Assn. Of India, (2011) 14 SCC 337


12

¶13. In Thansingh Nathmal v. Supdt of Taxes54 this Hon’ble Court adverted to the rule of
self imposed restraint that writ petition will not be entertained if an effective remedy is
available to the aggrieved person and observed:
“The HC does not by assuming jurisdiction under Art. 226 trench upon an alternative remedy
provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move
another tribunal, or even itself in another jurisdiction for obtaining redress in the manner
provided by statute, the High Court normally will not permit by entertaining a petition under
art. 226 of the constitution the machinery created under the statute to be bypassed, and will
leave the party applying to it to seek resort to the machinery so set up.”
¶14. Furthermore, it is humbly submitted that with regard to factual matrix of the present
case, Respondent should have resorted to seek remedy from a specialized body set up under
the Information Technology (Amendment) Act, 2008 as it is believed that CERT-In is better
equipped to deal with cyber security incidents and ensures security in cyberspace on a
national scale.
¶15. It must also be noted that the Respondent should have approached CERT-In for seeking
a remedy to protect his confidential data before resorting to writ jurisdiction for the purpose
of obtaining relief. Thus, with the extraordinary power conferred upon, the High Court
should have taken into consideration the legal remedy available under the statute and by not
objecting to the writ of mandamus has eventually defeated the very objective of the
Information Technology (The Indian Computer Emergency Response Team and Manner of
Performing Functions and Duties) Rules, 2008 for creating a National cyber security agency.
¶16. While construing the nature of cyber crisis involved, it is apparent that the government
has been brought into the picture in an arbitrary manner whilst the duty to protect the data
was directly placed upon the controller as there was a contract entered between the controller
and the respondent55 even though it was entered for an illegal consideration. Thus, it was the
duty of the controller to ensure confidentiality of data and in failure to protect the same has
violated Art. 6 (a),(b),(c)56 57 58and Art.2 of the Data Protection Directive which aims to

54
AIR 1964 SC 1419 (AIR pg 1423, para 7)
55
Moot Proposition, page no. 6, Para 2
56
Article 6 (a) of EU Directive 95/46/EC - The Data Protection Directive: processed fairly and lawfully


13

regulate the processing59 of personal data60. It also states under Art. 22 that “Member states
shall provide for right to every person to seek a judicial remedy prior to referral to a judicial
authority for any breach of the aggrieved party’s rights.”61
¶17. As per the Press Release62 dated 13th May 2014, Court of Justice of European Union
held that: “The operator of the search engine is the ‘controller’ in respect of that processing,
within the meaning of the directive, given that it is the operator which determines the
purposes and means of the processing. The Court observes in this regard that, in asmuch as
the activity of a search engine is additional to that of publishers of websites and is liable to
affect significantly the fundamental rights to privacy and to the protection of personal data,
the operator of the search engine must ensure, within the framework of its responsibilities,
powers and capabilities, that its activity complies with the directive’s requirements. This is
the only way that the guarantees laid down by the directive will be able to have full effect and
that effective and complete protection of data subjects (in particular of their privacy) may
actually be achieved.”
¶18. Thus, in light of the factual matrix of the case, Neverland as a pluralistic society can
provide for every person to seek an alternative remedy prior to the judicial authority and that
the duty to protect respondent’s information lied upon Affinity foiled, it is due to Affinity

57
Article 6 (b) of EU Directive 95/46/EC - The Data Protection Directive: collected for specified, explicit and
legitimate purposes and not further processed in a way incompatible with those purposes. Further processing of
data for historical, statistical or scientific purposes shall not be considered as incompatible provided that
Member States provide appropriate safeguards
58
Article 6 (c)of EU Directive 95/46/EC - The Data Protection Directive: adequate, relevant and not
excessive in relation to the purposes for which they are collected and/or further processed
59
Article 2 (b) of EU Directive 95/46/EC - The Data Protection Directive : processing of personal data"
("processing") shall mean any operation or set of operations which is performed upon personal data, whether or
not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval,
consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or
combination, blocking, erasure or destruction
60
Article 2 (a) of EU Directive 95/46/EC - The Data Protection Directive: "personal data" shall mean any
information relating to an identified or identifiable natural person ("data subject"); an identifiable person is one
who can be identified, directly or indirectly, in particular by reference to an identification number or to one or
more factors specific to his physical, physiological, mental, economic, cultural or social identity
61
Article 22 of EU Directive 95/46/EC - The Data Protection Directive :Without prejudice to any
administrative remedy for which provision may be made, inter alia before the supervisory authority referred to
in Article 28, prior to referral to the judicial authority, Member States shall provide for the right of every person
to a judicial remedy for any breach of the rights guaranteed him by the national law applicable to the processing
in question.
62
Press Release No. 70/14, Court of Justice of EU, Luxembourg, Case C- 131/12, Google Spain SL, Google
Inc. v. Agencia Espanola de Protecion de Datos, Mario Costeja Gonzalez


14

Foiled’s failure to perform its duty that the database was leaked causing massive impact to
personal data of the subscribers.
It is most humbly submitted that CERT-In as defined under the Information Technology Act,
2000 63 has been a central government mandated information technology organization with a
purpose to respond to computer security incidents, promote vulnerabilities and promote
effective information technology security practices throughout the country.
¶19. As per the Notification of Government of Odisha 64 dated 01.07.2016 the ‘Crisis
Management Plan for Cyber security in Odisha’ was prepared in line with the ‘National
Cyber Security Policy, 2013’ for countering cyber attacks and provide remedial actions to
mitigate and recover from malicious cyber related incidents. As per the National policy
implemented in 201365 one of the objects also counts for enabling protection of information
so as to safeguard privacy of citizen’s data and for reducing economic losses due to cyber
crime or theft.
¶20. It was opined by Justice K Chandru that “servers shall be unrestricted and shall not
invade the privacy of the contents/usage by the consumers unless and until directed by
CERT-In. It complies only when CERT-In issues an order for blocking of websites and web
links.”66
¶21. Therefore, in light of factual matrix of the present matter, CERT-In is better equipped to
deal with such a cyber crisis situation and provide remedial actions for the same and the
Government cannot be asked to take down the servers unless an order is issued from CERT-
In. Also, since the matter squarely falls within the domain of CERT-In, this Hon’ble Court
should transfer the case to the concerned authority and relieve itself. In the light of foregoing,
the Appellant No. 2 thus requests the Hon’ble court to set aside the petition.

63
Sec 70B of the IT Act, 2008: “
64
Electronics and IT Department, Government of Odisha, 2016
65
National cyber security Policy, 2013
66
M/s. R.K. Productions Pvt. Ltd. & Creative Commercials Media & Entertainment Ltd.v. Bharat Sanchar
Nigam Limited & ors. ; Vodafone India Ltd. v. R.K. Productions Pvt. Ltd2012 Indlaw MAD 2837


15

ISSUE 4: WHETHER COMPENSATION CLAIMS CAN BE MADE AGAINST A

NON-STATE ENTITY ONLY IN AN ENFORCEABLE CONTRACT OR UNDER
COMMON LAW AS WELL?
¶1. At the outset, it is submitted that the customer database was leaked by the Impact Team
and not by the Appellant. 67Applying the ‘But For’ test 68 evolved in the locus classicus case
of Barnett v Chelsea69, it is advocated the Respondent would not have been caused any
damage but for the leak of the customer database by the Impact Team. Therefore, the Impact
Team must be held liable. Thus, it is preliminarily pleaded before this Hon’ble Court that
compensation need not be paid by the Appellant, as they did not cause any damage to the
Respondent.
¶2. Besides the abovementioned contention, it is most humbly submitted that the Appellant is
not entitled to pay compensation since the contract between the Appellant and Respondent is
void [4.1]. Secondly, it is also submitted that compensation need not be paid under Common
law[4.2].
[4.1] No Compensation under Void Contracts:
¶3. As per S. 23 of the IC Act, 1872, “consideration or an agreement is lawful, unless-

i. It is forbidden by law;
ii. Is of such nature that, if permitted, it would defeat the provisions of any law;
iii. Is fraudulent; or
iv. Involves or implies injury to the person or property of another; or
v. The court regards it as immoral, or opposed to public policy.
vi. In each of these cases, the consideration or object of an agreement is said to be
unlawful. Every agreement, of which the object or consideration is unlawful, is void.”

67Moot Proposition , pg. 2, para 3
68
‘But For’ test : Would the result have occurred but for the act or omission of the defendant. If yes, the
defendant would not be liable.
69
(1969) 1 QB 428


16

¶4. From the factual matrix of the case, it is contended that since the contract was entered into
for an immoral object, it violates S. 23(v) of the IC Act, 1872, therefore, the contract is void
and unenforceable.
¶5. Understanding the concept of immorality in a comprehensive manner, Pollock and Mulla
hold that:
“The epithet "immoral" points, in legal usage, to conduct or purposes which the State,
though disapproving them, is unable, or not advised, to visit with direct punishment." The
other limitation imposed on the word by the statue, namely, "courts consider immoral" brings
out the idea that it is also a branch of the common law like the doctrine of public policy, and,
therefore, should be confined to the principles recognized and settled by Courts. Precedents
confine the said concept only to sexual immorality and no case has been brought to our
notice where it has been applied to any head other than sexual immorality. In the
circumstances, we cannot involve a new head so as to bring in wagers within its fold.”70
¶6. Referring to Halsbury Laws of England71 it was held by this Hon’ble Apex Court in
Gherulal Parakh v. Mahadeodas Maiya and Ors72 that:
“A contract which is made upon an immoral consideration or for an immoral purpose is
unenforceable, and there is no distinction in this respect between immoral and illegal
contracts. The immorality here alluded to is sexual immorality.”
¶7. It is also to be duly noted that although Lord Mansfield laid down that a Contract contra
bonos mores 73 is illegal, the law in this connection gives no extended meaning to morality,
but concerns itself only with what is sexually reprehensible.74
¶8. In the present case the contract was entered into between the Appellant and the
Respondent for the purpose of carrying out sexual affairs outside a wedlock. Thus, sexual
immorality is manifest in the impugned contract.
¶9. It is humbly submitted that where the object of the contract is immoral, the contract

70
Indian Contract Act , Pollock and Mulla, p. 157
71
3rd Edition , vol. 8, pg. 138
72
Gherulal Parakh vs. Mahadeodas Maiya and Ors., AIR 1959 SC 781
73 Contract against morality
74
Law of Contract, Cheshire and Fifoot, 3rd Edn., p. 279


17

would be rendered void and a suit for recovery arising out of such a contract would not
be tenable. In the case of Bani Muncharam v. Regina75 a house was leased to the lessee
with the knowledge that it would be used for the purpose of running a brothel. It was held
that a suit for recovery of rent would not lie against a lessee where the house has been let out
for such an immoral purpose. Similarly, a promissory note executed for the repayment of the
balance of the security deposit for the lease of the house taken for immoral purposes is not
enforceable. 76
¶10. Likewise, in the present case, the Parties entered into a contract to facilitate extra-marital
affairs, which is immoral. Therefore, the contract having been established on immoral
grounds is void and any compensation claims arising out of the same would not be tenable.
¶11. Furthermore, it has been opined by the Hon’ble Courts that it is the object of the
agreement and not the motive of the parties that has to be considered.77 In the present
case, the Appellant’s motive to enter into the contract is only to accrue economic profits.
This, it is humbly contended that such a motive cannot be the basis for enforcing the contract.
[4.2] No compensation Claims under Common Law:
Legal right is an averment of entitlement arising out of law. It is a benefit conferred upon a
person by the Rule of Law. Thus a person suffering from any legal injury can only challenge
the act or omission. 78 Loss may not always result in legal injury and it is a settled legal
position that legal injury is sine qua non to constitute a tort as is elucidated by the maxim
Damnum Sine Injuria. In the present case, assuming arguendo that the Respondent’s
fundamental Right to Privacy has been infringed, it is submitted that the same cannot be
enforced against the Appellant. Right to Privacy is a fundamental right under Art. 2179 of

75
ILR 32 bom 581(589) ; Choga lal v Piyasi (1909) 31 All 58 ; Legal Heris of Decd. Umediya R Rathod and
Ors. v state of Gujarat See Also CF Coral Leisure Group Ltd v. Barnett [1981] ICR 503; Wilson v.
Carnley[1908] 1 KB 729(740)
76
Kali v ManmohineeILR 63 Cal 445
77
Nathusa v. Munir, AIR 1943 Nag 129; Kashi v. Bapu 1940 Nag 305(FB)
78
Ravi Yeshwant Bhoir v. District Collector Raigarh and Ors. (2012) 4 SCC 407
79 Art.21 : No person shall be deprived of his life and personal liberty except according to a procedure
established by law.


18

Constitution of Neverland, which can be enforced only against entities that come under the
purview of the term ‘State’ under Art. 12 80 of the Constitution of Neverland.
¶12. In Holman v Johnson 81 it has been stated that “no court will lend its aid to a man who
founds his cause of action upon an immoral or an illegal act. If from the plaintiff’s own
stating or otherwise, the cause of action appears to arise ex turpi causa, there the courts say
that he has no right to be assisted.”
¶13. Based on the above, it is humbly submitted before this Hon’ble Court that the actions of
Respondent to subscribe to the website taints his conduct with immorality and thus violates
the doctrine of ‘Ex Turpi causa non oritur actio” under the Law of Torts.
¶14. Relying upon the above doctrine it was opined by Sir Grimwood Mears in Vilayat
Husain v. Misran82 that if the court comes to the conclusion that the parties were acting
together with a view to perpetrate a fraud, and did in fact perpetrate that fraud, and that there
is no difference in the degree of guilt of the plaintiff (who is asking the court to give him
some help) and that of the defendant, the duty of the court is not to assist either party; in other
words, the duty of the court is to dismiss the claim, because the court having then in its
knowledge that it has before it two persons equally guilty of fraud will not assist either of
them.
¶15. It must also be duly noted that Lindley, L. J. has given a broader dimension to the
doctrine of Ex turpi causa non oritur actio as a well recognized legal principle which is not
confined to indictable offences. No court ought to enforce an illegal contract and if the
illegality is duly brought to the notice of the Court and if the person invoking the aid of the
court is himself implicated in the illegality. 83

80 Art. 12: In this part, unless the context otherwise requires, the state includes the government and Parliament
of India and the government and the legislature of each of the states and all local or other authorities within the
territory of India or under the control of the government of India.
81
(1775) 1 Cowp 341
82
MANU/UP/0046/1923 : I.L.R (1923) All. 396
MANU/MH/0020/1941.
83Kalagara Srirama Row and Official Receiver vs. Kalagara Bapayya, MANU/TN/0386/1922


19

¶16. Drawing a similarity to the present case, it is submitted that the Appellant and the
Respondent entered into an agreement to actuate extra marital affairs. The Respondent has
knowledge of such illegality and immorality. Thus, any compensation claims, as stated
above, cannot arise.
¶17. It has been observed in Taylor v Chester that damages can be recovered despite the
illegality and the aggrieved will not be deemed to be in pari delicto, unless reliance has to be
placed upon the illegality of the transaction as an integral part of the case. It is submitted
that, in the present case, the transaction between the parties took place for the purpose of
fostering extra-marital affairs, which is firstly, an offence u/s. 497 of the IPC and secondly,
opposed to public policy. Reliance has to be placed on this transaction in order to recover
damages as it is the subject matter of the issue. The transaction is illegal and hence, damages
cannot be recovered.
¶18. In the case of Hall v Herbert 84 it has been observed as follows:

“There is a need in law of tort for a principle which permits judged to deny recovery to a
plaintiff on the ground that to do so would undermine the integrity of the justice system. The
power is a limited one. Its use is justified where allowing the plaintiffs claim would introduce
inconsistency into the fabric of law, either by permitting the plaintiff to profit from an illegal
or wrongful act, or to evade a penalty prescribed by criminal law.”
¶19. In the present case it is, therefore submitted that, the Respondent having committed
immoral and adulterous acts by signing up on the Appellant’s website cannot be allowed to
profit by way of damages as such a damage would not have been caused but for his depraved
acts and intentions. The Respondent had voluntarily agreed to subscribe to the website and
had also agreed to himself that it would be naïve of him to expect high standards from a
company fostering itself as a meeting point for promoting adulterous affairs. 85 This also
corroborated from the fact that even though the Respondent knew that the Appellant was
encouraging prurient interests he admitted to pursue such immoral activities.

84 (1993) 2 SCR 159, 179-180
85
Moot Proposition, pg. 4, para 5,6


20

¶20. Therefore, it is most humbly submitted that the Respondent cannot recover any damages
from the Appellant.


XXXIII

PRAYER
Wherefore, in the light of the facts stated, issues raised, arguments advanced and authorities
cited, the Appellants humbly pray before this Hon’ble Court to be graciously pleased to hold,
adjudge and declare that
1. The decision of the Hon’ble High Court be set aside thus granting the divorce and
withdrawing the writ of Mandamus.
2. The compensation claim be set aside.
And/ or pass any judgment that it deems fit in the interest of justice, equity and good
conscience.
For This Act Of Kindness The Appellants Shall Be Duty Bound Forever Pray.
Place:
Date:
sd/-
Counsel for Appellants


The Honourable Supreme Court of Neverland: Before

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

The Honourable Supreme Court of Neverland: Before

Uploaded by

Copyright:

Available Formats

AURO

UNIVERSITY 4TH NATIONAL MOOT COURT COMPETITION

TEAM CODE: ANMCC 149

THE HONOURABLE SUPREME COURT OF NEVERLAND

SLP No. ___/2018

STEPHANIE HUNT..…………………...…….…………………..…(APPELLANT NO. 1)

(FILED UNDER ART. 136 OF THE CONSTITUTION OF NEVERLAND)

SLP NO. ___/2018

AFFINITY FOILED REPRESENTED THROUGH FEVID MEDIA

(FILED UNDER ART. 136 OF THE CONSTITUTION OF NEVERLAND)

-Memorial Filed on Behalf of Appellants-

1. Whether Internet infidelity amounts to adultery and cruelty as a

ground for divorce filed by Appellant No. 1? ………………………………1

2. Whether the hacked internet chats can be considered as valid

3. Whether the Hon’ble High Court can grant a writ of Mandamus

seeking removal of servers hosting, flashing or containing leaked

4. Whether compensation claims can be made against a non-state

entity only in an enforceable contract or under common law as

ABBREVIATION FULL FORM

A. Jayachandra v. AneelKaur, AIR 2005 SC 534

R v. Maqsud Ali[1966] 1 QB 688

Constitution of Neverland, 1950

Information Technology (Reasonable Security Practices and Procedures and sensitive

Black’s Law Dictionary, 10th Ed., West Group (2014)

Banerjee, B P J., ‘Writ Remedies’, 7th Ed., Lexis Nexis, (2016)

EU Data Protection Directive 95/46/EC

of Neverland to appeal against the order of the Hon’ble High Court.

1. WHETHER INTERNET INFIDELITY AMOUNTS TO ADULTERY AND

2. WHETHER THE HACKED INTERNET CHATS CAN BE CONSIDERED AS

3. WHETHER THE HON’BLE HIGH COURT CAN GRANT MANDAMUS

4. WHETHER COMPENSATION CLAIMS CAN BE MADE AGAINST A NON-

1. WHETHER INTERNET INFIDELITY AMOUNTS TO ADULTERY AND

2. WHETHER THE HACKED INTERNET CHATS CAN BE CONSIDERED AS

3. WHETHER THE HON’BLE HIGH COURT CAN GRANT A MANDAMUS

4. WHETHER COMPENSATION CLAIMS CAN BE MADE AGAINST A NON-

ISSUE 1: WHETHER INTERNET INFIDELITY AMOUNTS TO ADULTERY AND

1.1] Internet Infidelity amounts to mental cruelty as a ground for divorce

¶4. Accordingly, it is submitted that Internet infidelity, as committed by the Respondent,

1.2] Respondent has committed adultery

ISSUE 2: WHETHER THE HACKED INTERNET CHATS CAN BE CONSIDERED

screenshots are capable of affording reasonable presumption as to facts in issue or the

consent or knowledge of procurement of data, additionally, is no bar to admission of

ISSUE 3: WHETHER THE HON’BLE HIGH COURT CAN GRANT A MANDAMUS

[3.2] Existence of Alternative Remedy: A bar to Mandamus

ISSUE 4: WHETHER COMPENSATION CLAIMS CAN BE MADE AGAINST A

[4.1] No Compensation under Void Contracts:

¶3. As per S. 23 of the IC Act, 1872, “consideration or an agreement is lawful, unless-

[4.2] No compensation Claims under Common Law:

¶18. In the case of Hall v Herbert 84 it has been observed as follows:

2. The compensation claim be set aside.

Counsel for Appellants

You might also like