KLA Memo Respondent

Team Code: 9
25TH ALL INDIA MOOT COURT COMPETITION, 2014

FOR KERALA LAW ACADEMY TROPHY
IN THE HON’BLE SUPREME COURT OF INDIA

AT NEW DELHI
Criminal Appeal No.: ____/2014
(Arising out of Special Leave Petition No.:____/2014)
In the matter of
Section 2(f) of Protection of Women from Domestic Violence Act, 2005;
Article 14, 15, 21,141 and 253 of the Constitution of India
RAMILA APPELLANT
v.
AMALIK RESPONDENT
BEFORE SUBMISSION TO HON’BLE CHIEF JUSTICE
AND HIS COMPANION JUSTICES
OF THE HON’BLE SUPREME COURT OF INDIA AT NEW DELHI
MEMORANDUM ON BEHALF OF RESPONDENT

25TH ALL INDIA MOOT COURT COMPETITION, 2014 FOR KERALA LAW ACADEMY TROPHY
TABLE OF CONTENTS
TABLE OF CONTENTS
TABLE OF CONTENTS ............................................................................................................ i

LIST OF ABBREVAITION ......................................................................................................ii
TABLE OF AUTHORITIES ................................................................................................... iii
STATEMENT OF JUSRISDICTION ...................................................................................... vi
STATEMENT OF FACTS ......................................................................................................vii
STATEMENT OF ISSUES ...................................................................................................... ix
SUMMARY OF ISSUES .......................................................................................................... x
ARGUMENTS ADVANCED ................................................................................................... 1
ISSUE 1: WHETHER THE APPLICATION OF IMPUGNED PRECEDENT
CONSIDERED BY THE HIGH COURT OF DHASHINANCHAL WAS IN
ACCORDANCE WITH LAW AND CORRECT IN PRACTICE ........................................ 1
1.1 High Court Was Correct In Relying On The Impugned Precedent ......................... 1
a. Article 141 and principle of stare decisis in pending matters ................................. 1
b. Prospective overruling and Article 20(1) not applicable ........................................ 2
c. Principles of Natural Justice will not be applicable in the Instant matter .............. 3
d. Ratio decidendi was rightly applied ........................................................................ 3
1.2 The High Court of Dhashinanchal has properly appreciated the facts of the present
case in light of Indra Sarma Case ...................................................................................... 5
ISSUE 2: WHETHER THE DECISION OF INDRA SARMA V. VKV SARMA IS
AGAINST ESTABLISHED PRINCIPLES OF LAW? ....................................................... 10
2.1 The guidelines of Indra Sarma case are in accordance established principle of law .. 11
a. Interpretation in accordance with established principles of interpretation of
statute ............................................................................................................................ 11
b. Laws of Other Countries........................................................................................ 13
PRAYER .................................................................................................................................. 16
~i~
LIST OF ABBREVIATIONS
LIST OF ABBREVAITION
Art. Article
AC Appeal Cases
AIR All India Reporter
All England Law Reports (United

All ER
Kingdom)
FC Federal Court
MHC Madras High Court
Para. Paragraph
SCALE Supreme Court Almanac
Sec. Section
SC Supreme Court
SCC Supreme Court Cases
SCJ Supreme Court Journal
SCR Supreme Court Reporter
SCW Supreme Court Weekly
Supp. Supplement
~ii~
TABLE OF AUTHORITIES
A. Indian Cases
1. A.S Gauraya v. S.N Thakur, (1986)2 SCC 709 ............................................................. 3
2. Air India Cabin Crew Association v. Yeshawinee Merchant, (2003) 6 SCC 277 ......... 5
3. Alok Kumar v. State, 2010 (4) JCC 2385 ....................................................................... 7
4. D. Velusamy v. D. Patchaiammal AIR 2011 SC 479 .......................................... 3, 5, 11
5. Ganesh Shanta Ram Sirur v. State Bank of India, (2005) 1 SCC 13............................. 4
6. Ganga Sugar Corpn. v. State of U.P, AIR 1980 SC 286............................................... 2
7. Golak Nath v. State of Punjab AIR 1967 SC 1643........................................................ 3
8. Hussain v. State of Maharashtra, AIR 1976 SC 1992 .................................................. 2
9. Krishna v. Mathura, AIR 1982 SC 686 ......................................................................... 5
10. Lily Thomas v. Union of India AIR 2000 SC 1650 ....................................................... 4
11. M. Palani v. Meenakshi, AIR 2008 Mad 162. ............................................................... 7
12. MP Khan v. State of AP (2004) 2 SCC 267 ................................................................. 12
13. Nagar Palika Nigam v. Krishi Upaj Mandi Samiti AIR 2009 SC 187 ........................ 12
14. Orissa Cement Ltd. v. State of Orissa AIR 1991SC1676 .............................................. 3
15. Pinakin Mahipatray Rawal v.State of Gujarat (2013)10SCC48 ................................... 8
16. Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding officer, Labour
Court, (1990) 3 SCC 682 ............................................................................................... 5
17. Rajeshwar v. State of W.B., AIR 1965 SC 1887 ............................................................ 2
18. S.R. Batra v. Taruna Batra, (2007) 3 SCC 169 ............................................................. 7
19. Sarla Mudgal v. Union of India AIR 1995 SC 1531 ..................................................... 4
20. Savitaben Somabhat Bhaitya v. State of Gujarat AIR 2005 SC 1809 ......................... 12
21. Secretary, State of Karnataka v. Umadevi (3), (2006) 4 SCC 1.................................... 2
22. Shankar Lal v. State of Rajasthan, (2005) 12 SCC 330 ................................................ 3
~iii~
23. Spencer and Co. Ltd. v. Vishwadarshan Distributors Pvt. Ltd. (1995) 1 SCC 259 ...... 5
24. State of Haryana v. Suresh AIR 2007 SC 2245 .......................................................... 12
25. State of Kerala v. Alasserry Mohd, (1978) 2 SCC 386 ................................................. 3
26. Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818. ....................................... 4
27. Vidit Kumar, Ram KrishanAgarwala and Deepak Kumar Agarwala (AOP) v. Deputy
Commissioner of Income Tax, (2005)95TTJ(Agra)117 ................................................. 8
28. Waman Rao v. Union of India, AIR 1981 SC 271......................................................... 2
29. Yamunanai Anantrao Adhav v. Anantro Shivram AIR 1988 SC 644 .......................... 12
B. Foreign Cases
1. Whitson v Whitson [1995] Fam 198............................................................................. 13
C. Indian Legislations
1. Hindu Marriage Act, 1955
2. Special Marriage Act, 1954

3. Indian Christian Act, 1872
4. Protection of Women from Domestic Violence Act, 2005
D. Books
1. AIYAR P RAMANATHA, Advanced Law Lexicon, Book 1, 3rd Edition, 2005,

Wadhwa Nagpur .......................................................................................................... 14
2. Garner Bryan A., Black’s Law Doctionary, Seventh Edition, 1990, West Group Co. 14
3. Salmond: Salmond on Jurisprudence, 10th Edn ............................................................. 4
4. Salmond: Salmond on Jurisprudence, 12thEdn. ............................................................. 4
E. Books Referred
1. JAIN, M.P., CONSTITUTION OF INDIA, 6th Edition, Buttersworth Wadhwa, 2010,

2. SHUKLA, V.N., CONSTITUTION OF INDIA, 12th Edition, Eastern Book Companhy,
2013.
3. BASU, D.D., CONSTITUTION OF INDIA, 21st Edition, Lexis Nexis, 2013
4. SERVAI, H.M., CONSTITUTIONAL LAW OF INDIA, 4th Edition, Universal Law
House, 2012.
~iv~
5. Mulla Sir Dinshaw, MULLA'S “COMMENTARY ON HINDU LAW”, 21st Edition,

Lexis Nexis,2012.
6. Subba Rao G.V.C., FAMILY LAW IN INDIA, 9th Edition, S Gogia & Co., 2010.
7. Prasad Kusum, FAMILY LAW LECTURES, 2nd Edition, Butterswirth Wadhwa, 2009.
8. Hogget B., Pearl D. , Cooke E., Bates P., THE FAMILY, LAW AND SOCIETY- CASES
AND MATERIALS, 4th Edition, Buttersworth, London, 1996.
9. Black Jill, Bridge Jane & Bond Tina, A PRATICAL APPROACH TO FAMILY LAW, 7th
Edition, Oxford University Press, 2004.
10. Cretney Stephen M., Masson Judith M., Bailey-Harris Rebecca, PRINCIPLES OF
FAMILY LAW, Sweet & Maxwell, London, 2002
F. Other Materials
1. Common Law Marriage Handbook, Department of Labour, USA ............................. 14
2. Department of Work and Pensions, Decision Makers Guide, Vol 3, Chapter 11, para
11040 Available at
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/251390
/dmg-vol3-ch11.pdf ..................................................................................................... 13
~v~
STATEMENT OF JURISDICTION
STATEMENT OF JUSRISDICTION
The Hon’ble Supreme Court of India has jurisdiction to hear the matter under Article 136 of
the Constitution of India as the leave has been granted by the Court.
~vi~
STATEMENT OF FACTS
STATEMENT OF FACTS
1. Dhashinanchal is a State in the Indian Union. Amalik and Ramila were IT professionals
working together in a private company in Santhipur, the capital city of the State.
2. Amalik was a married person having three children and the Ramila was unmarried.
Constant contacts between them developed intimacy and in the year 1996 Amalik left the
job from the company and started living with the Ramila in a shared household.
3. Family members of Ramila and Amalik were against their relationship.
4. In 1997 Ramila resigned her job in the company and started a Beauty Parlour in her name
with the help of Amalik and they were earning from that business. After some time, they
shifted the business to their residence.
5. In October 2006, Ramila filed a petition Criminal Misc. No. 320 of 2006 under Section
12 of the Protection of Women from Domestic Violence Act 2005 ( DV Act) before the II
Additional Chief Metropolitan Magistrate, Santhipur against Amalik.
6. It was alleged that due to her relationship with Amalik, Ramila became pregnant on two
occasions, though all resulted in abortion. It was alleged that Amalik used to force her to
take contraceptive methods to avoid pregnancy.
7. It was also stated that the respondent took a sum of ₹10,00,000/- from the petitioner stating
that he would buy a land in her name, but the same was not done. He also took money
from her for the admission of his son in the leading Management Institute.
8. Petitioner also alleged that, during the year 1998, respondent took a loan of ₹3,50,000/-
from her and had not returned.
9. Further, it was also stated that he was harassing her by not exposing her as his wife
publicly, or permitting to suffix his name after the name of the petitioner.
10. She also alleged that the respondent never used to take her anywhere, either to the houses
of relatives or friends or functions.
11. Amalik filed detailed objections to the application stating that it was on sympathetical
grounds that he gave shelter to her in a separate house after noticing the fact that she was
abandoned by her parents and relatives, especially after the demise of her father.
12. The respondent has admitted that he had cohabited with the petitioner since 1996.
13. The fact that he was married and had three children was known to the petitioner. Pregnancy
of the petitioner was terminated with her as well as her mother’s consent since she was not
maintaining good health.
~vii~
STATEMENT OF FACTS
14. The respondent had also spent large amounts for her medical treatment and the allegation
that he had taken money from the petitioner was denied.
15. After examining ten witnesses the Magistrate took the view that the plea of “domestic
violence” had been established, due to the non-maintenance of the petitioner and passed
the order dated 21.7.2009 directing the respondent to pay an amount of ₹.20,000/- per
month towards maintenance from the date of the petition. Respondent, aggrieved by the
said order dated 21-7-2009 , filed an appeal before the Sessions Court under Section 29 of
the DV Act.
16. The Appellate Court, after having noticed that the Amalik had admitted the relationship
with Ramila for over a period of 10 years, took the view that, due to their live in
relationship for a considerable long period, non maintenance would amount to domestic
violence within the meaning of Section 3 of the DV Act.
17. The Appellate Court also concluded that the Ramila has no source of income and that
Amalik is legally obliged to maintain her and confirmed the order passed by the
Magistrate.
18. Amalik filed an appeal against the Order of District Court . After hearing the arguments of
the counsels for appellant and respondent on 19-11-2013 and 20-11-2013 the High Court
of Dhashinanchal set aside the decisions of the subordinate courts through its decision
dated 2-12-2013. The Court relied on the decision of the Supreme Court (dated 26-11-
2013) in Indra Sarma v VKV Sarma, {CRIMINAL APPEAL NO. 2009 OF 2013 (@
SPECIAL LEAVE PETITION (CRL.) NO.4895 OF 2012)} . On the basis of the guidelines
given in Para 55 of the judgment of the Supreme court in Indra Sarma the High Court
arrived at the conclusion that the relationship between Amilak and Rohila is not
relationship in the nature of marriage.
19. Against the decision Ramila approached the Supreme Court under Art 136 of the
Constitution and on 12-12-2013 leave to file special leave appeal was granted. The case is
posted to 2014 February 7th and 8th for final hearing before a full bench of the Supreme
Court of India.
~viii~
STATEMENT OF ISSUES
STATEMENT OF ISSUES
ISSUE 1: WHETHER THE APPLICATION OF IMPUGNED PRECEDENT CONSIDERED

BY THE HIGH COURT OF DHASHINANCHAL WAS IN ACCORDANCE WITH LAW
AND CORRECT IN PRACTICE
ISSUE 2: WHETHER THE SUPREME COURT DECISION OF INDRA SARMA V. VKV

SARMA IS AGAINST ESTABLISHED PRINCIPLES OF LAW AND NEEDS TO BE
RECONSIDERED OR NOT
~ix~
| SUMMARY OF ISSUES|
SUMMARY OF ISSUES

ACCORDANCE WITH LAW AND CORRECT IN PRACTICE
It is humbly contended that the High Court was indeed correct in relying upon the precedent
of Indra Sharma to determine the present matter since the High Court is bound by the decision
of the Supreme Court under Article 141 of the Constitution of India. The principle of
prospective overruling cannot be applied in the instant matter as the application of law
pronounced only for future actions is a discretionary power of the apex court which was not
exercised by the Court in the matter of of Indra Sarma v. VKV Sarma (herein referred to as
Indra Sarma case). Further, the facts of the instant case have been rightly appreciated in the
light of the guidelines laid down in the Indra Sarma case for determination of ‘relationship in
nature of marriage’
ISSUE 2: WHETHER THE SUPREME COURT DECISION OF INDRA SARMA V.

VKV SARMA IS AGAINST ESTABLISHED PRINCIPLES OF LAW AND NEEDS TO
BE RECONSIDERED OR NOT
It is contended that the decision of Indra Sarma v. VKV Sarma is as per the established
principles of law and is valid precedent. Along with the said guideline, the Court held that a
woman who co-habits with a married man knowing the existence of his previous marriage
would not be able to claim the protection and reliefs under the Domestic Violence Act, 2005.
It is contended that the guidelines prescribed in the Indra Sarma case are in accordance to
established principle of law and scope of ‘relationship in nature of marriage’ under Sec 2(f)
of the Protection of Women from Domestic Violence has been correctly laid down in Velusamy
case and Indra Sarma case.
~x~
|ARGUMENTS ADVANCED|ISSUE 1|
ARGUMENTS ADVANCED

ACCORDANCE WITH LAW AND CORRECT IN PRACTICE
It is humbly contended that the High Court was indeed correct in relying upon the precedent
of Indra Sharma to determine the present matter since the High Court is bound by the decision
of the Supreme Court under Article 141 of the Constitution of India. The application of
prospective overruling cannot be applied in the instant matter as the application of law
pronounced only for future actions is a discretionary power of the apex court which was not
exercised by the Court in the matter of of Indra Sarma v. VKV Sarma1(herein referred to as
Indra Sarma case). Further, the facts of the instant case have been rightly appreciated in the
light of the guidelines laid down in the Indra Sarma case for determination of ‘relationship in
nature of marriage’
1.1 High Court Was Correct In Relying On The Impugned Precedent
a. Article 141 and principle of stare decisis in pending matters
Article 141 of Constitution of India states that:
“The law declared by the Supreme Court shall be binding on all courts within the territory of
India.”
It relies upon the doctrine of ‘Stare Decisiset non quietamoere’ which dictates to stand by the
decisions and not to disturb what is settled2. As per Article 141 all courts in India are bound to
follow the decision of the Supreme Court3 as the Supreme Court declares the law of nation.4
This Article empowers the Supreme Court to ‘declare’ the law by interpretation of the existing
law, and not to enact it.5 Article 141 gives the binding effect in the instant case; the Hon’ble
Supreme Court interpreted Section 2(f) of the Domestic Violence Act, 2005 clarifying the
position of law over the term ‘relationship in nature of marriage’. The ratio decendendi of the
Judgment became binding as soon as the law was declared by the Apex court to avoid any
confusion and inconsistency in law6 and ensure judicial discipline in precedent.
1
Indra Sarma v. VKV Sarma (CRIMINAL APPEAL NO. 2009 OF 2013 (@SPECIAL LEAVE PETITION
(CRL.) NO.4895 OF 2012)) MANU/SC/1230/2013
2
Waman Rao v. Union of India, AIR 1981 SC 271
3
Hussain v. State of Maharashtra, AIR 1976 SC 1992 (para 4)
4
Ganga Sugar Corpn. v. State of U.P, AIR 1980 SC 286
5
Rajeshwar v. State of W.B., AIR 1965 SC 1887 (para 8)
6
Secretary, State of Karnataka v. Umadevi (3), (2006) 4 SCC 1
~1 ~
It is contended that the judgment given by the sessions Court was in ignorance of the precedent
of D. Velsamy v. D. Pachaiammal7, according to which in addition to 4 guidelines in paragraph
33 a relationship between a married man and an unmarried woman cannot be read under
‘relationship in nature of marriage’. Further, law declared by the Supreme Court in Indra
Sarma case is binding on the instant matter which was then pending before the High Court
because as soon as the law is declared by the Supreme Court it comes into operation. Apex
court has stated that there is nothing like any prospective operation alone of the law laid down
by the Supreme Court, it applies to all pending proceedings as well. 8 Law declared by the
Supreme Court must be followed and merely because the lower court is not aware of the
decision of the Supreme Court on a particular legal issue, it does not imply that the said
judgment is not in operation.9In cases where a specific precedent or point of law is not pleaded,
lower court can apply its wisdom to decide the matter relying on the precedent. In the present
case though the matter was pending at time of pronouncement of the impugned precedent but
the Judgment of Indra Sarma made the position of law clear on the issue which was directly
and substantially involved in the case present before the court.
b. Prospective overruling and Article 20(1) not applicable
Further, it is contended that Prospective overruling is an exception to the principle of Stare
decisis which in subsequent judgments after the Golak Nath v. State of Punjab 10 has been
applied to the interpretation of statutory laws too. But, the principle of Prospective overruling
in the instant matter cannot be contended by the appellant.
When a case is decided by the doctrine of prospective overruling, it must be stated by the
learned judges.11 Though, in a case12 the principle of prospective overruling was applied
without specifically mentioning the terminology the intent of prospective application of the
‘law declared’ was expressly stated and the law declared was not applied in that very case.
Whereas, in the instant matter, the decisive precedent of Indra Sarma case neither mentions
the embodiment nor application of the judgment prospectively. The law formulated was applied
in the same case and not only relief was denied to the claimed but also it ruled against in entirety
of the issue raised. Discretion of applying the operation of the judgment prospectively was not
exercised by the Apex court. Also to mention, Prospective overruling is when a settled law is
7
D. Velusamy v. D. Patchaiammal AIR 2011 SC 479
8
A.S Gauraya v. S.N Thakur, (1986)2 SCC 709.
9
Shankar Lal v. State of Rajasthan, (2005) 12 SCC 330
10
Golak Nath v. State of Punjab AIR 1967 SC 1643
11
Orissa Cement Ltd. v. State of Orissa AIR 1991SC1676.
12
State of Kerala v. Alasserry Mohd, (1978) 2 SCC 386.
~2 ~
overruled by difference in interpretation but in the instant matter the only law declared over
the impugned issue before Indra Sarma case was of Velusamy case, which was not overruled
but it relied upon the same.
Moreover, there can be no contention from the appellant that such application of law is in
violation of Art. 20(1) of the Constitution which is a guard against ex post facto law. As
precedent does not comes under the definition of ‘law’ as per Article 13(1). Further, Art. 20(1)
can only be invoked when a penalty or punishment is levied for an act which was done at the
time when there was no law in force criminalising such act. Whereas, in the present matter
Hon’ble Court merely declared the law interpreting the term ‘relationship in nature of marriage’
used in Section 2(d) of the Domestic Violence Act, 2005 which was already in force when the
cause of action arose for the present case. A similar ratio was laid down in Lily Thomas v.
Union of India13 in regard of Sec. 494 of IPC which was interpreted in Sarla Mudgal v. Union
of India.14
c. Principles of Natural Justice will not be applicable in the Instant matter
The concept of natural justice is flexible.15 In a case where the relevant rules did not provide
for hearing by the appellate authority, before enhancing the punishment and where the appellate
authority takes a well-considered decision; denial of personal hearing would not vitiate the
decision.16 In the instant matter both the parties have been heard over the issue in entirety.
There is no further provision in the Criminal Procedure to communicate to the parties in case
of any judicial activism. Hence, there was no ignorance of principles of natural justice.
d. Ratio decidendi was rightly applied
Ratio decidendi is the rule which the court regards as governing the case.17 In Indra Sarma
case, this Hon’ble Court while denying the maintenance to the appellant, along with 8
guidelines ruled that if a woman is co-habiting with a married man with a prior knowledge of
such marriage, her relationship will not be read under Section 2(f) of The Domestic Violence
Act, 2005. Hence, she will not be entitled for any relief under the said Act. This ratio decidendi
turned into a settled law which became binding on the High court as soon as the ‘law declared’
in form of precedent came into force. As ratio decidendi has the force of law as regards the
world at large.18
13
Lily Thomas v. Union of India AIR 2000 SC 1650
14
Sarla Mudgal v. Union of India AIR 1995 SC 1531
15
Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818.
16
Ganesh Shanta Ram Sirur v. State Bank of India, (2005) 1 SCC 13, para 29 and 31
17
Salmond: Salmond on Jurisprudence, 12thEdn. P. 177
18
Salmond: Salmond on Jurisprudence, 10th Edn.,p.191.
~3 ~
Further, delivering the judgment of present case by High Court in ignorance of the law
pronounced by Supreme Court in Indra Sharma would have amounted to judicial impropriety
and judicial adventurism and such practice is strongly depreciated19 and would be treated as
per incurium20. The Hon’ble Supreme Court has ruled that it can initiate contempt of court
proceedings against such High Court Judges as flout the orders of Supreme Court21. The
importance of precedent and stare decisis can be inferred from such Judgments of Supreme
Court in the Indian context.
Therefore, in this present case, irrespective of the fact that the precedent relied upon was not
into existence at the time of pleading which gave no opportunity to the parties to argue on the
specific judgment. The Supreme Court had already declared the law before the pronouncement
of Judgment by the High Court, and by that time the matter was still pending. Any order in
defiance of the directions given by Supreme Court would have been without jurisdiction and a
nullity.22 It is also imperative to note that even if the learned High Court Judge would have
ignored the precedent of Indra Sarma case, another precedent of D. Velusamy case had to be
considered by the High Court.
In D. Velsamy v. D. Pachaiammal23 relationship in nature of marriage was held to be a common

law marriage and it gave following five conditions for the same,
(a) The couple must hold themselves out to society as being akin to spouses.
(b) They must be of legal age to marry.
(c) They must be otherwise qualified to enter into a legal marriage, including being
unmarried.
(d) They must have voluntarily cohabited and held themselves out to the world as being
akin to spouses for a significant period of time.
Applying the above mentioned conditions from paragraph 33 of the mentioned case. Condition
‘c’ is not being fulfilled in light of the established facts of the present case as the respondent
was already married and had children. This again in present case disqualifies the appellant’s
relationship with respondent to be read under ‘relationship in nature of marriage.’ It can be
strained that Indra Sarma in addition to declaring the law also re-affirmed the law which was
already declared in D. Velusamy v. D. Patchaiammal.
19
Air India Cabin Crew Association v. Yeshawinee Merchant, (2003) 6 SCC 277
20
Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding officer, Labour Court, (1990) 3 SCC
682.
21
Spencer and Co. Ltd. v. Vishwadarshan Distributors Pvt. Ltd. (1995) 1 SCC 259
22
Krishna v. Mathura, AIR 1982 SC 686 (para 18).
23
supra note 7
~4 ~
Hence, in the light of the arguments stated, reasons established High Court of Dhashinanchal
was constitutionally bound to follow the precedent of Indra Sarma under the principle of stare
decisis which is envisaged in Article 141 of the Constitution of India. Prospective overruling
though being an exception to the stare decisis is not applicable in the instant case as there was
no law at the time the judgment was delivered and even if Indra Sarma would not have been
relied upon. Vellusamy gave its ratio over the same issue.
1.2 The High Court of Dhashinanchal has properly appreciated the facts of the present
case in light of Indra Sarma Case
It is humbly contended that the High Court of Dhashinanchal has indeed properly appreciated
the facts before passing the said judgment on the 2nd day of December, 2013. The Court in its
judgment relied on the precedent set forth by the this court of Indra Sarma case. For the same,
we have to analyse the two landmark judgments of this Hon’ble Court in the cases of Velusamy
case and Indra Sarma case.
In Paragraph 33 of the Velusamy judgment the Division Bench of this Court has laid down few
points to recognize whether a couple is in a relationship or not. The said paragraph has been
stated as follows:
“In our opinion a `relationship in the nature of marriage' is akin to a common law
marriage. Common law marriages require that although not being formally
married:-
(a) The couple must hold themselves out to society as being akin to spouses.
(b) They must be of legal age to marry.
(c) They must be otherwise qualified to enter into a legal marriage, including
being unmarried.
(d) They must have voluntarily cohabited and held themselves out to the world as
being akin to spouses for a significant period of time.
(see `Common Law Marriage' in Wikipedia on Google) In our opinion a

`relationship in the nature of marriage' under the 2005 Act must also fulfill the
above requirements, and in addition the parties must have lived together in a
`shared household' as defined in Section 2(s) of the Act. Merely spending
weekends together or a one night stand would not make it a `domestic
relationship'.”
~5 ~
For a relationship to be considered as a relationship in nature of marriage, the above mentioned

points (a, b, c & d) need to be fulfilled, however, since the fact of Amalik being married was
known to Ramila, thus the (a) refers to monogamy which was absent in the instant case, since
knowledge of the first wife was already known to the appellant. Furthermore, point (d) has
been reiterated in the Indra Sarma’s judgment wherein the said guideline has also been not
fulfilled which has been dealt later in the argument. It is contended that all the guidelines laid
down in the Indra Sarma’s case have indeed not been fulfilled:
a. Duration of period of relationship
Section 2(f) of the DV Act has used the expression "at any point of time", which means a
reasonable period of time to maintain and continue a relationship which may vary from case to
case, depending upon the fact situation. Referring to the judgment of the Hon’ble High Court
of Delhi, Alok Kumar v. State,24 and the Court has held that 5 years is a reasonable time period
in regards to live-in relationships. The said guideline is not rebutted for the reason that both the
parties to the relationship have indeed accepted that the relation lasted for a period of 10 years.
Furthermore, the Hon’ble High Court of Madras has also stated that if a couple cohabitate for
a short period of time as well in a shared household that can be taken as reasonable period of
time.25 Thus, this guideline is applicable to the instant matter. However, taking the view of this
Court in Indra Sarma’s case, knowledge of the first marriage of the male partner if known to
the female partner, then she cannot ask for maintenance and will be treated with the status of a
concubine, thus in a such circumstances the time period of relationship in nature of concubine
is regardless.
b. Shared household
In the light of S. 2(s) of the DV Act and following the definition as provided in Batra v. Batra26,
this Court had not rejected that the Couple were indeed in a shared household. On the same
lines, in the instant matter, the fact that the couple were living under the same roof has cannot
be refuted to. Thus, the said guideline is applicable to the instant matter. However, reiterating
as explained in the 1st guideline, if a woman is treated as a concubine, then she cannot be in a
shared household as defined in Batra v. Batra.27
24
Alok Kumar v. State, 2010 (4) JCC 2385.
25
M. Palani v. Meenakshi, AIR 2008 Mad 162.
26
S.R. Batra v. Taruna Batra, (2007) 3 SCC 169
27
ibid
~6 ~
c. Pooling of Resources and Financial Arrangements
In the instant matter, neither Amalik nor Ramila were supporting each other, or any one of
them, financially, sharing bank accounts, acquiring immovable properties in joint names or in
the name of the woman, long term investments in business, shares in separate and joint names,28
so as to have a long standing relationship. Thus, absence of any such financial Arrangements
do not satisfy the said guideline in the present case.
d. Domestic Arrangements
Entrusting the responsibility, especially on the woman to run the home, do the household
activities like cleaning, cooking, maintaining or up keeping the house, etc. However, in the
instant matter the appellant was running a beauty parlor in her residence29. It can be assumed
that the appellant was not into any form of homemaking as she was busy in running her business
residence. Again absence of any form of domestic arrangement between the parties results in
non-applicability of the said guideline.
e. Sexual Relationship
As laid down in Indra Sharma case, marriage like relationship refers to sexual relationship, not
just for pleasure,30 but for emotional and intimate relationship, for procreation of children, 31
so as to give emotional support, companionship and also material affection, caring etc.
However, in the instant case though the respondent has admitted the sexual relation with the
appellant but that was only for pleasure as there was no intention of procreation of children or
any other reason whatsoever.
f. Children
Indra Sharma case ruled that presence of children is a high indication of a relationship in nature
of marriage as an intention of long term relationship, sharing the responsibility in bringing up
can be entrusted, which again in the present case is absent. Thus, absence of children does not
satisfy this guideline.
28
Vidit Kumar, Ram KrishanAgarwala and Deepak Kumar Agarwala (AOP) v. Deputy Commissioner of Income
Tax, (2005)95TTJ(Agra)117
29
Para 1 of the Moot Proposition.
30
Sunita Jha v. State of Jharkhand and Anr.,
31
Pinakin Mahipatray Rawal v.State of Gujarat (2013)10SCC48
~7 ~
g. Socialization in Public
Holding out to the public and socializing with friends, relations and others, as if they are
husband and wife is a strong circumstance to hold the relationship is in the nature of marriage.
In the present case the respondent did not socialize in public holding the appellant as his wife.
Moreover, this fact is submitted by the appellant herself as an allegation on the respondent.
Also the fact has to be taken into consideration that the appellant during the10 years of the
relationship never objected to the same as holding out to public over such a period of time is
very vague and unpractical, in the --modern era everybody is well aware about his/her
neighborhood. Thus, in the said light of facts, it is impractical that for over 10 years of time
they did not hold in public as husband and wife, for this sole reason, the appellant can be said
to be for sexual purposes only, and not a partner in relationship in nature of marriage.
h. Intention and conduct of the parties
Common intention of parties as to what their relationship is to be and to involve, and as to their
respective roles and responsibilities, primarily determines the nature of that relationship. In the
Indra Sarma case the intent of both the parties was scrutinized and this court finally came to
the conclusion that the intention and conduct of the parties did not prove their intention to be
in a live in relationship ‘in nature of marriage’. Considering many factors that were absent like
absence of any child and any financial arrangement, the intention of the parties was deduced
finally to that of a sexual purposes and not any relationship in nature of marriage. In the present
matter before this Hon’ble Court, the facts are similar, the intent of the parties and their
subsequent conduct nowhere proves that both the parties had ever intended to enter a
relationship in nature of marriage, since there was absence of any children or financial
arrangement, etc. The said guideline is not being satisfied and hence are not satisfied to the
instant case.
To conclude, the appellant having complete knowledge of the fact that the respondent was
already married could not enter into any form of live in relation in nature of marriage. Thus,
all live-in relationships are not relationships in nature of marriage because the two landmark
precedents that are considered as the law of the land in the light of Art. 141, in the instant matter
the Velusamy’s 4 points were not fully satisfied and also applying the 8 guidelines laid down
by this Hon’ble Court in the Indra Sarma case, the said relation could not satisfy the same
guidelines, thus the relationship is not in nature of marriage but other than in nature of marriage
~8 ~
and the status of the appellant falls below the wife and not in the purview of S. 2(f) of the DV
Act.
~9 ~
ISSUE 2: WHETHER THE DECISION OF INDRA SARMA V. VKV SARMA IS

AGAINST ESTABLISHED PRINCIPLES OF LAW?
It is contended that the decision of Indra Sarma v. VKV Sarma32 is as per the established
principles of law and is valid precedent. The following are the guidelines as prescribed by the
Indra Sarma case33:
(1) Duration of period of relationship
Section 2(f) of the DV Act has used the expression "at any point of time", which means a
reasonable period of time to maintain and continue a relationship which may vary from case
to case, depending upon the fact situation.
(2) Shared household
The expression has been defined Under Section 2(s) of the DV Act and, hence, need no further
elaboration.
(3) Pooling of Resources and Financial Arrangements
Supporting each other, or any one of them, financially, sharing bank accounts, acquiring
immovable properties in joint names or in the name of the woman, long term investments in
business, shares in separate and joint names, so as to have a long standing relationship, may
be a guiding factor.
(4) Domestic Arrangements
Entrusting the responsibility, especially on the woman to run the home, do the household
activities like cleaning, cooking, maintaining or up keeping the house, etc. is an indication of
a relationship in the nature of marriage.
(5) Sexual Relationship
Marriage like relationship refers to sexual relationship, not just for pleasure, but for emotional
and intimate relationship, for procreation of children, so as to give emotional support,
companionship and also material affection, caring etc.
(6) Children
32
supra note 1
33
supra note 1 para 55
~10~
Having children is a strong indication of a relationship in the nature of marriage. Parties,

therefore, intend to have a long standing relationship. Sharing the responsibility for bringing
up and supporting them is also a strong indication.
(7) Socialization in Public
Holding out to the public and socializing with friends, relations and others, as if they are
husband and wife is a strong circumstance to hold the relationship is in the nature of marriage.
(8) Intention and conduct of the parties
Common intention of parties as to what their relationship is to be and to involve, and as to

their respective roles and responsibilities, primarily determines the nature of that relationship.
Along with the said guideline, the Court held that a woman who co-habits with a married man
knowing the existence of his previous marriage would not be able to claim the protection and
reliefs under the Domestic Violence Act, 2005. It is contended that the guidelines prescribed
in the Indra Sarma case are in accordance to established principle of law and scope of
‘relationship in nature of marriage’ under Sec 2(f) of the Protection of Women from Domestic
Violence has been correctly laid down in Velusamy case and Indra Sarma case.
2.1 The guidelines of Indra Sarma case are in accordance established principle of law
It is contended that the aforementioned 8 guidelines along with the decision that a woman
cohabiting with a married man knowing the existence of his previous marriage is indeed in
accordance to established principles of law. It is contended that the decision is in conformity
with judicial trends both in India and other countries.
a. Interpretation in accordance with established principles of interpretation of statute
The guidelines of Indra Sarma case has been laid down to determine the scope of ‘relationship
in nature of marriage’. The Apex Court for the first time in the case of D Velsamy v. D
Pachaiammal34considered the scope of ‘relationship in nature of marriage’. The Court held
that 'relationship in the nature of marriage' is akin to a common law marriage35. The purpose
of the Court to give such an observation was to give guidelines to give protection to women
who live in a live-in relationship. But the court in the same decision held that not all live in
relationship can be given protection under the ambit of ‘relationship in nature of marriage’36.
34
D. Velusamy v. D. Patchaiammal AIR 2011 SC 479
35
ibid para 33
36
ibid para 34
~11~
The intention of the legislature is primarily gathered from the language used i.e the
consideration should not only be given to what has been said but also to what has not been
said37.In the instant matter the legislature intended to give the protection of DV Act to all
women are in a domestic relationship which includes relationships arising out of consanguinity,
adoption, marriage and ‘relationship in nature of marriage’. The Legislature didn’t use the
term live-in relationship. Now to determine the scope of ‘relationship in nature of marriage’,
the rule of literal construction needs to be applied which mandates that the words of the statute
are to be understood in their natural, ordinary or popular sense and the sentences are to be
constructed according to the their grammatical meaning38. The legislature intended to include
both marriage and relationship in nature of marriage while defining domestic relationship under
Sec 2(f) of the DV Act. To determine what a relationship in nature of marriage is, it will be
pertinent to look into what is marriage. Under the various legislations governing marriages in
India, a valid marriage is one where both the parties are of the legal age to marry, have given
their free consent to the marriage and have performed the essential rites or ceremonies subject
to their religion with no exiting marital bonds39. Now in light of this, it is contended that the
phrase “in the nature of marriage” has been employed to give protection to the class of
relationships which resemble a marital bond who were denied legal protection merely because
they do not possess statutory and social recognition. But it cannot include within its ambit any
relationship which cannot be legalized under any other prevalent law of the land. The same
contention has been accepted by the Courts while interpreting the term ‘wife’ in Section 125 of
Code of Criminal Procedure, 1978. In the case of Yamunanai Anantrao Adhav v. Anantro
Shivram40, the Court held that the word “wife” will include only legally wedded wife and not
even a women who had married a man without the knowledge of the pre-existing marriage of
his41. This interpretation has been upheld in the subsequent decision of Savitaben Somabhat
Bhaitya v. State of Gujarat42. In the same decision the court observed that:
8. There may be substance in the plea of learned Counsel for the appellant that
law operates harshly against the woman who unwittingly gets into relationship
with a married man and Section 125 of the Code does not give protection to
37
Nagar Palika Nigam v. Krishi Upaj Mandi Samiti AIR 2009 SC 187 para 8
38
MP Khan v. State of AP (2004) 2 SCC 267; State of Haryana v. Suresh AIR 2007 SC 2245
39
Section 5 of Hindu Marriage Act,1955; Section 60 of Indian Christian Marriage Act,1872;Section 4 of Special
Marriage Act, 1954
40
Yamunanai Anantrao Adhav v. Anantro Shivram AIR 1988 SC 644
41
ibid para 4-7
42
Savitaben Somabhat Bhaitya v. State of Gujarat AIR 2005 SC 1809
~12~
such woman. This may be an inadequacy in law, which only the legislature can
undo. But as the position in law stands presently there is no escape from the
conclusion that the expression 'wife' as per Section 125 of the Code refers to
only legally married wife.
Section 5(i) of Hindu Marriage Act43, Section 60(2) of Indian Christian Marriage Act44and
Section 4(a) of Special Marriage Act45 requires the parties to the marriage to have no living
spouse or existing spouses.The intention of the legislature through enactment of various
legislation relating to marriage is to encourage monogamy. It is contended that if the court
permits to include a bigamous relation within the ambit of ‘relationship in nature of marriage’
it would amount to legislation and not interpretation. This will amount to violation of the very
cardinal principle of interpretation that the Court cannot add words to the provision of law
legislated by the legislature.
b. Laws of Other Countries
In other country’s legal system also, the similar conditions as imposed by Indian law exists
with respect to recognizing live-in relationship. In UK the Courts have applied the legal maxim
ex turpi causa non oritur action which means that’s from a dishonorable cause an action does
not arise. In the case of Whitson v Whitson46 it was held that only a person who enters into a
second marriage/co-habitation without the knowledge of the existence of the first marriage of
the other partner will be able to claim protection under the law. Also the Department of Work
and Pensions, UK has taken the view that for the purpose social security means testing, a
couple must be monogamous for their relationship to be analogous to husband and wife47. Also
in Sweden under Cohabitee Act, 2003 Article 1 para 3 excludes protection for concurrent
cohabiting relationships.
43
Hindu Marriage Act,1955
44
Indian Christian Marriage Act,1872
45
Special Marriage Act, 1954
46
Whitson v Whitson [1995] Fam 198
47
Department of Work and Pensions, Decision Makers Guide, Vol 3, Chapter 11, para 11040 Available at
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/251390/dmg-vol3-ch11.pdf
~13~
In Velusamy case, the Court treated ‘a relationship in nature of marriage’ akin to common law
marriage. In Black law dictionary, common law marriage is defined as:
A marriage that takes legal effect, without license or ceremony, when a couple
live together as husband and wife and intend to be married and hold themselves
out to others as a married.48
P Ramanatha Aiyer has defined common law marriage as:
A marriage that is without a ceremony and is based on the parties’ agreement

to cohabitation for a period and their public recognition of the marriage. Most
jurisdiction no longer allow this type of mararige to be formed, although they
may recognize such marriages formed prior to a certain date or formed in a
jurisdiction that does permit common-law marriages49.
In USA, eleven states recognize common law marriages50. A perusal through the numerous
judgments of the aforesaid states with respect to common law marriages would give the
following 5 elements as standard elements of common law marriage:
a) Capacity: minimum age, sound mind and free from marital ties to any other persons
b) Agreement: mutally agreed consent for immeditate and permanent martial relationship
c) Cohabitation: parties must live together openly and continuously as husband and wife
d) Holding out:parties must openly represent to the community that they are husband and
wife
e) Reputation: reputation in the community must be that the parties are husband and
wife.51
A perusal of the above laws of the other countries will show that the guidelines of Indra Sarma
case and the conditions of common law marriage as stated in the Velusamy case is indeed
correct and is in conformity with established principles of law and international standards.
Hence it could be concluded in light of the above authorities that a common law marriage needs
to fulfil all the conditions of a marriage other than legal recognition. Hence in the light of the
above submission it is submitted that the decision of Indra Sarma and Velsusamy giving the
48
Garner Bryan A., Black’s Law Doctionary, Seventh Edition, 1990, West Group Co.
49
AIYAR P RAMANATHA, Advanced Law Lexicon, Book 1, 3rd Edition, 2005, Wadhwa Nagpur
50
States of Alabama, Coloroda, Iowa, Utah, Montana, New Hampshire, Texas, Oklahoma, Rhode Island, Kanas,
South Carolina
51
Common Law Marriage Handbook, Department of Labour, USA
~14~
scope of a relationship in nature of marriage is indeed correct and in accordance with

established principle of laws.
~15~
PRAYER
PRAYER
Wherefore, in light of the issues raised, judgments cited and arguments advanced, the Hon’ble
Supreme Court of India be pleased to:
a. Dismiss the present matter

Consequentially,
Declare that the guidelines in Indra Sarma for determination of the term “relationship
in nature of marriage” are in contemplation with International Principles and Indian
Law.
AND/OR
Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience.
All of which is most humbly and respectfully submitted.
Counsel on behalf of the Respondent
Sd/-
~16~

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Team Code: 9

25TH ALL INDIA MOOT COURT COMPETITION, 2014

IN THE HON’BLE SUPREME COURT OF INDIA

Criminal Appeal No.: ____/2014

(Arising out of Special Leave Petition No.:____/2014)

Section 2(f) of Protection of Women from Domestic Violence Act, 2005;

Article 14, 15, 21,141 and 253 of the Constitution of India

BEFORE SUBMISSION TO HON’BLE CHIEF JUSTICE

AND HIS COMPANION JUSTICES

OF THE HON’BLE SUPREME COURT OF INDIA AT NEW DELHI

MEMORANDUM ON BEHALF OF RESPONDENT

TABLE OF CONTENTS ............................................................................................................ i

AIR All India Reporter

All England Law Reports (United

MHC Madras High Court

SCALE Supreme Court Almanac

SCC Supreme Court Cases

SCJ Supreme Court Journal

SCR Supreme Court Reporter

SCW Supreme Court Weekly

1. A.S Gauraya v. S.N Thakur, (1986)2 SCC 709 ............................................................. 3

3. Alok Kumar v. State, 2010 (4) JCC 2385 ....................................................................... 7

4. D. Velusamy v. D. Patchaiammal AIR 2011 SC 479 .......................................... 3, 5, 11

6. Ganga Sugar Corpn. v. State of U.P, AIR 1980 SC 286............................................... 2

7. Golak Nath v. State of Punjab AIR 1967 SC 1643........................................................ 3

8. Hussain v. State of Maharashtra, AIR 1976 SC 1992 .................................................. 2

9. Krishna v. Mathura, AIR 1982 SC 686 ......................................................................... 5

10. Lily Thomas v. Union of India AIR 2000 SC 1650 ....................................................... 4

11. M. Palani v. Meenakshi, AIR 2008 Mad 162. ............................................................... 7

12. MP Khan v. State of AP (2004) 2 SCC 267 ................................................................. 12

14. Orissa Cement Ltd. v. State of Orissa AIR 1991SC1676 .............................................. 3

15. Pinakin Mahipatray Rawal v.State of Gujarat (2013)10SCC48 ................................... 8

17. Rajeshwar v. State of W.B., AIR 1965 SC 1887 ............................................................ 2

18. S.R. Batra v. Taruna Batra, (2007) 3 SCC 169 ............................................................. 7

19. Sarla Mudgal v. Union of India AIR 1995 SC 1531 ..................................................... 4

21. Secretary, State of Karnataka v. Umadevi (3), (2006) 4 SCC 1.................................... 2

22. Shankar Lal v. State of Rajasthan, (2005) 12 SCC 330 ................................................ 3

24. State of Haryana v. Suresh AIR 2007 SC 2245 .......................................................... 12

25. State of Kerala v. Alasserry Mohd, (1978) 2 SCC 386 ................................................. 3

28. Waman Rao v. Union of India, AIR 1981 SC 271......................................................... 2

1. Whitson v Whitson [1995] Fam 198............................................................................. 13

1. Hindu Marriage Act, 1955

2. Special Marriage Act, 1954

1. AIYAR P RAMANATHA, Advanced Law Lexicon, Book 1, 3rd Edition, 2005,

3. Salmond: Salmond on Jurisprudence, 10th Edn ............................................................. 4

4. Salmond: Salmond on Jurisprudence, 12thEdn. ............................................................. 4

1. JAIN, M.P., CONSTITUTION OF INDIA, 6th Edition, Buttersworth Wadhwa, 2010,

5. Mulla Sir Dinshaw, MULLA'S “COMMENTARY ON HINDU LAW”, 21st Edition,

1. Common Law Marriage Handbook, Department of Labour, USA ............................. 14

ISSUE 1: WHETHER THE APPLICATION OF IMPUGNED PRECEDENT CONSIDERED

ISSUE 2: WHETHER THE SUPREME COURT DECISION OF INDRA SARMA V. VKV

ISSUE 1: WHETHER THE APPLICATION OF IMPUGNED PRECEDENT

ISSUE 2: WHETHER THE SUPREME COURT DECISION OF INDRA SARMA V.

ISSUE 1: WHETHER THE APPLICATION OF IMPUGNED PRECEDENT

In D. Velsamy v. D. Pachaiammal23 relationship in nature of marriage was held to be a common

(b) They must be of legal age to marry.

(see `Common Law Marriage' in Wikipedia on Google) In our opinion a

For a relationship to be considered as a relationship in nature of marriage, the above mentioned