8 TH Intra moot court competition

TEAM CODE- T02

INTRA MOOT COURT COMPETITION 2019

13th NOVEMBER, 2019

TEERTHANKER MAHAVEER UNIVERSITY

BEFORE

THE HON’BLE HIGH COURT OF DELHI

IN THE MATTER OF

1. KUNAL ………………………………………………… PETITIONER

V.

STATE……………………………………………….. RESPONDENT

2. RITIKA ………………………………………………. APPELLANT

V.

HARSHIT …………………………………………… RESPONDENT

3. KUNAL ……………………………………………... APPELLANT

V.

RITIKA ……………………………………………... RESPONDENT

Memorial for Petitioner

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INDEX

LIST OF ABBREVIATION………………………………………………………………….(i)

INDEX OF AUTHORITIES………………………………………………………………....(ii).

STATEMENT OF JURISDICTION…………………………………………………………(iii)

STATEMENT OF FACTS…………………………………………………………………...(iv)

ISSUES RAISED…………………………………………………………………………….(vi)

SUMMARY OF ARGUMENTS………………………………………………………….....(vii)

ADVANCED ARGUMENT………………………………………………………………..(viii)

PRAYER……………………………………………………………………………………..(ix)

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LIST OF ABBREVIATIONS

S.NO ABBREVIATION MEANING

1 Sec. Section

2 DV Domestic violence
3 HMA Hindu marriage act
4 IPC Indian penal code

5 HAMA Hindu adoption and maintenance

6 SC Supreme court

7 HC High court

8 FIR First information report

9 & And

10 b/w Between

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INDEX OF AUTHORITIES

CASE LAWS :

 Bodhisattwa Gautam v. Miss Subhra Chakraborty

 Chairman Railway Board & ors. v. Mr. Chandrima Das & ors.
 Nimeshbhai Bharatbhai Desai v. State of Gujrat
 Badri Prasad v. DY. Director of Consolidation
 R v. R
 D. Velusamy v. D. Patchaiamal
 Indra Sarma v. V.K.V. Sarma
 Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav
 Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Payel and ors.
 Tanveer Kaur v. District Judge Dehradoon

STATUTES :

 Code of Criminal Procedure, 1973.

 Indian Penal Code, 1860.
 Domestic Violence Act, 2005.
 Indian Constitution.
 Hindu Marriage Act, 1955.
 Hindu Adoption and Maintenance Act, 1956.

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STATEMENT OF JURISDICTION
The appellant / petitioner humbly submitted that the jurisdiction of this case falls under three
Section for three mentioned situations:

Following is the jurisdiction for THE MATTER OF QUASHING FIR;

1. Section 482 of Criminal Procedure Code,1973 saving of inherent power of High Court-
Nothing in this Code shall deemed to limit or affect the inherent power of the High Court to
make such order as may be necessary to give effect to any order under this code, or to
prevent abuse of the process of any court or otherwise to secure the ends of justice.

In THE MATTER OF APPEALS REGARDING LIVE-IN RELATIONSHIP;

2. Appellant is claiming maintenance under Section 125 of Crpc-

It is incorporated in order to avoid vagrancy and destitution for a wife /minor /children /old
age parents, and the same has now has been extended by judicial interpretation to partners
of a live-in relationship.

In THE MATTER OF APPEAL REGARDING PERMAMENT MAINTENANCE;

3. Section 28 of HMA, 1955-

Appeals from decree and order sub section(2) “orders made court in any proceeding under
this Act, under Section 25 and 26 shall, subject to the provisions of sub section(3) be
applicable if they are not interim order, any such appeal shall lie to the court to which
appeals ordinarily lie from the decisions of the court given in exercise of its original civil
jurisdiction.”

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STATEMENT OF FACTS
Ritika, 18 year old girl dated a boy named Harshit, who was senior, soon their friendship
converted into the live- in relationship.

Her parents did not know anything about it until she got pregnant.

To prevent social stigma, Ritika’s parents decided to marry Ritika with Harshit but he and his
parents refused for the same.and put allegations on Ritika that she is having illicit relations with
somebody else.

As a result Ritika filed a petition for maintenance in Tis Hazari Court, Delhi on the basis of live-
in relationship {petition no.1}

To prevent social stigma her parents decide to marry her with Kunal, who was the son of his
childhood friend and he also accept the proposal after knowing full truth.

A pre-wedding tour at Kasauli was planned for Ritika and Kunal.

Harshit went there, Ritika saw him and tried to avoid him & after that introduced him to Kunal
as her friend only.

On 12th January, 2019 marriage was solemnized.

Kunal had intercourse very few times with her due to his busy life because of which she got
frustrated.

On 28 January, 2019 Ritika found that Kunal was involved physically with his close friend,
Abhay.

This incident spoiled their relationship & when she told to her parents they adviced to adjust in
the situation.

So she made a call to Harshit and start meeting him, he also does so to refuse liability.

On 14-02-2019 Kunal saw Ritika to be coming out of a hotel room with Harshit when he came
home in drunken state, she refused for the same when he ask about her presence in the hotel
which create a big quarrel & Kunal intercourse with her against her will.

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When Ritika narrated this to her in- laws they started abusing her for her pre-marriage conduct
and slap her when call was seem in phone from and made to Harshit.

Ritika left the house and started living in rent at Dwarka New Delhi.

Then Ritika filed a petition for maintenance and specific demand for separate residence. And
also lodged FIR for rape and filed petition under DV Act, 2005 against Kunal, his father, mother
{petition no.2}

Meanwhile Tis Hazari Court dismissed the petition as the petitioner was not a legally wedded
wife, therefore she cannot claim for maintenance.

District Court Dwarka , allowed for maintenance against Kunal.

Now three petitions before the Delhi High Court:-

1. Petition filed by Kunal u/s 482 for quashing the fir which was lodged by Ritika for committing
rape .

2. Appeal filed by Ritika against Harshit for maintenance against the decision of District Court
Tis Hazari.

3. Appeal filed by Kunal against the decision of District Court Dwarka in which the petition of
Ritika for maintenance & separate residence was allowed by District Court,Dwarka..

The High Court of Delhi has clubbed these petitions and appeals exercising its inherent power.

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ISSUES RAISED

1. WHETHER THE PETITION FILED BY PETITIONER FOR QUASHING THE FIR

WAS VALID OR NOT?

 Marital Rape

2. WHETHER APPELLANT WILL BE LIABLE FOR MAINTENANCE FROM

RESPONDENT ON THE BASIS OF LIVE IN RELATIONSHIP OR NOT?

 Live –in relationship

 Entitled for maintenance
 Legitimacy of children.

3. WHETHER APPELLANT WILL BE LIABLE FOR MAINTENANCE FROM

RESPONDENT OR NOT?

 Legally wedded wife

 Domestic violence

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SUMMARY OF ARGUMENTS

1. WHETHER THE PETITON FILED BY THE PETITIONER FOR QUASHING

THE FIR WAS VALID OR NOT?

It is humbly submitted before the Hon’ble High Court of Delhi that the FIR which was
filed by the respondent is valid as her husband committed a marital rape. The respondent
has rights to bring criminal proceedings against her husband. Therefore the quashing of
FIR was not valid.

2. WHETHER THE APPELLANT IS ENTITLED TO SEEK MAINTENANCE

FROM RESPONDENT ON THE BASIS OF LIVE-IN RELATIONSHIP OR NOT?

It is humbly submitted before the Hon’ble High Court of Delhi that the appellant is entitled to
seek maintenance from the respondent as there was a live-in relationship between them. The
appellant can claim maintenance under Section 25 of DV Act, 2005.

3. WHETHER THE APPELLANT WILL BE LIABLE FOR MAINTENANCE TO

RESPONDENT ON THE BASIS OF MARRIAGE OR NOT?

It is humbly submitted before the Hon’ble High Court of Delhi that the appellant is liable
for maintenance to the respondent as Ritika was a legally wedded wife of Kunal and it is
the duty of the husband to maintain her wife. So, under Section 125 of Crpc the respondent
is entitled to seek maintenance from appellant.

2.

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ARGUMENTS ADVANCED

CONTENTION NO 1

1. WHETHER THE PETITION FILED BY THE PETITIONER FOR QUASHING OF

FIR WAS VALID OR NOT?

It was humbly submitted before the Hon’ble High Court of Delhi that the FIR was valid
on the ground that marriage does not mean the consent of sex & there is a difference b/w the
intimate cohabitation & the forced sex at any time anywhere. But the petition filed by the
petitioner/appellant for quashing the FIR was not valid.

In Bodhisattwa Gautam v. Miss Subhra Chakraborty, the SC held that the rape is a crime
against the basic human right of a person. Any law which damages ladies entitlement to live with
dignity and gives spouse appropriate to drive wife to have sexual intercourse without her will is
along these lines unlawful.

In Chairman Railway Board & ors. v. Mr. Chandrima Das & ors. the SC clearly mention
that the victim have a right to bring an action into the court & can claim compensation.

Similarly, here respondent have right to represent their value.

 According to the Section 3 (a) of DV Act,

“harm or injury or endangers the health, safety, life, limb, or well being, whether
mental or physical of the aggrieved person or tends to do so & include causing harm, physically
abuse, sexual abuse, verbal & emotional abuse &economic abuse.”

Sexual abuse include any conduct of a sexual nature that abuse, humiliate, degrades or otherwise
violate the dignity of women. It may be referred as an unwanted sexual activity with using force,
making threats or taking advantage of victim when not able to give consent.

So, any activity that amounts to the harm to a women related with sexual intercourse then a
women has a right for taking step against himself by filing a FIR against husband.

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The provision of IPC is that – sexual intercourse by a man with his own wife, the wife not being
under fifteen years of age is not rape. There was also contradictory provision for those who are
above fifteen years of age.

The punishment for rape under Section 376 –whoever, except in the case provided by subsection
(2), commits rape shall be punished with imprisonment of either description for term which shall
not be less or for a term which may extend to ten years and shall also be liable to fine unless the
women raped is his own wife & is not under 15 years of age, in this case he shall be punished
with imprisonment of either description for a term which may extend to two years.

So, there should be maximum two years which is quite less in comparison to the punishment
provide for rape outside the marriage.

The SC states that the total statutory abolition of the marital rape exemption is the first necessary
step in teaching society that humanized treatment of women will not be tolerated & the marital
rape is not a husband privilege but rather a violent act & an injustice that must be criminalized.
As a result, in this case the offence is punishable under Section 376 & 377 of IPC is concerned.
It clearly mention that a wife can initiate proceedings against her husband under Section 377,
held that it should be criminalized process not conceptual because it violate the fundamental duty
“to renounced practice that affects the dignity of women.”

In the foreign case R v. R, the question of laws & general public importance involved in the
decision was is a husband criminally liable for rape of his wife. It was submitted before the judge
on this behalf that a husband could not in law be guilty of an offence of raping his own wife over
the proposition was rejected following the judge’s ruling the appellant plead guilty to attempted

So, the FIR is valid & the appellant should be liable for rape. As India, should also criminalized
the same because if any rape is criminalized then why not marital rape.

At Delhi High Court a bench of acting Chief Justice Gita Mittal & C. Hari Shankar, said that in a
relationship like marriage both man & woman have right to say “no to physical relation” & if
any spouse apply it forcefully then it should be punishable & the 172nd law commission report
demand for the recommendations related with rape.

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Rape should be replaced by sexual assault. Marital rape explained under Section 375 (2) of IPC
should be deleted. Forced sexual intercourse by husband with his wife should be treated equally
as an offence on the same reason Section 376 A was also deleted.

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CONTENTION NO 2

2. WHETHER THE RESPONDENT WILL BE LIABLE TO PAY MAINENANCE TO

THE APPELLANT ON THE BASIS OF LIVE-IN RELATIONSHIP OR NOT?

It is humbly submitted before the Hon’ble High Court of Delhi that the legal definition of a
live-in relationship is,”an arrangement of living under which the couples which are
unmarried live together to conduct a long going relationship similarly as in marriage.”

 Not a Live-in Relationship :

Following are the cases on which it could be proved that it not a live-in relationship;
In Badri Prasad v. DY. Director of Consolidation,1 the SC gave a legal validity to a 50
year live-in relationship of a couple. It was held by Jutice Krishna Iyer that a strong
presumption arises in favour of wedlock where the partners have lived together for a long
term as husband and wife.
But here Harshit and Ritika have not resided together for 50 years so, it is not a live-in
relationship.

In D. Velusamy v. D. Patchaiamal,2 SC has laid down certain conditions for a live-in

relationship –

(a) The couple must hold themselves out to society as being akin to spouses.
(b) They must have voluntarily cohabited and held themselves out to the world as being
akin to spouses for a significant period of time, and in addition to the parties must have
lived together in a’shared household’ as defined under Section 2(f) of Protection of
Women from Domestic Violence Act, 2005.

Merely spending weekends together or a one night stand would not make it a ‘domestic
relationship.’ 1

1
1 1978 (3) SCC 527
2 (2010)

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But here Harshit and Ritika did not show to the world that they were living as a spouse as
appellant’s parents were unaware of the same until her pregnancy. So it was not a live-in
relation2

In Indra Sarma v. V.K.V. Sarma,3 it provided that intention and cohabitation is necessary in a
live-in relationship.

Here the intention of the appellant is only to seek maintenance from the respondent without
giving legal status to their child and marriage.

Therefore the respondent is not liable to pay the maintenance to the appellant.

 Kunal is liable to pay maintenance :

According to Section 7 of HMA, 1955 it does not envisage mandatory ceremonies for a valid
marriage. However, solemnization of marriage according to the customary rites and rituals is a
necessary condition of a valid marriage.

Here, the marriage between Kunal and Ritika is valid as all conditions are fulfilled and therefore,
Ritika being a legally wedded wife of Kunal, he is only liable to pay maintenance to her. Section
125 of Crpc, 1973 provides for a legally wedded wife is to claim maintenance.

In Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav,4 the SC opined that the
expression ”wife” used in Section 125 of Crpc should be interpreted to mean only a legally
wedded wife. It was held that the woman is entitled to claim maintenance under Section 125 of
Crpc as she was his legally wedded wife.

In Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Payel and ors.,it was held in this case
that when it comes to maintenance of wife under the DV Act read with the HAMA,1956 it is the
personal obligation of the husband to maintain his wife

Therefore Kunal being husband of Ritika is liable to pay maintenance to her as she was legally
wedded wife.

2
3 2013 5 SCC 755
4 1998 1 SCC 530

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CONTENTION NO 3

3. WHETHER THE RESPONDENT IS ENTITLED TO SEEK MAINTENANCE

FROM THE APPELLANT ON THE BASIS OF MARRIAGE OR NOT?

It is humbly submitted before the Hon’ble High Court of Delhi that the appellant is liable to
pay maintenance and separate residence to respondent on the following grounds :

 Legally Wedded Wife

According to Section 7 of HMA, 1955 it does not envisages ceremonies for a valid marriage.
However, solemnization of marriage according to the customary rites and rituals is a necessary
condition of a valid marriage. From the facts it is cleared that all such requirements for a valid
marriage are fulfilled between the appellant and respondent.

According to Section 18(1) of HAMA,1956 a Hindu wife whether married before or after the
commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.

In Tanveer Kaur v. District Judge Dehradoon, it was held that it is the liability of husband
that he gives maintenance to his wife. And also Section 125(1) (a) of Crpc says that a person has
to maintain his wife who is unable to maintain herself.

In Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav, the SC held that a legally
wedded wife is entitled to claim maintenance under Section 125 of Crpc.

 Domestic Violence :

 Section 3 of DV Act, 2005 says that -

For the purpose of this Act, any act, omission, or commission or conduct of the respondent shall
constitute domestic violence in case it;

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(a) harms or injures or endangers the health, safety, life, limb, or well being, whether mental
or physical of the aggrieved person or tends to do so and includes causing physical abuse,
sexual abuse, verbal and emotional abuse and economic abuse.
(b) otherwise injures or causes harm, whether physical or mental to the aggrieved person.

For the purpose of this Section,-

(a) “physical abuse” means any act or conduct which danger to life, limb, or health or impair
the health or development of the aggrieved person and includes assault, criminal
intimidation and criminal force;
(b) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades
or otherwise violates the dignity of woman;
(c) “verbal and emotional abuse” includes-
Insults, ridicule, humiliation, name calling and insults or ridicule specially with regard
to not having a child or a male child; and
Repeated threats to cause physical pain to any person in whom the aggrieved person is
interested.

As the respondent had suffered from all of such things she is entitled to maintenance under
Section 20 of Protection of Women from Domestic Violence Act, 2005. And it was also held in
Vimlaben Ajitpatel Patel v. Vatslaben Ashokbhai Patel & ors. that when it comes to
maintenance under DV Act read with the HAMA, 1956 it is the personal obligation of the
husband to maintain his wife.

Therefore on all above grounds appellant is liable to maintain respondent by giving maintenance
to her.

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PRAYER

In the light of the stated, argument advanced & authorities cited, it is most humbly prayed
before the Hon’ble High Court of Delhi, that it may be graciously pleased to adjudge & declare
that:-

1. FIR filed under Section 482 of Crpc is valid and should be quashed and marital rape
should be criminalized.
2. The respondent is not liable for the maintenance to appellant.
3. The respondent is liable for maintenance & separate residence from appellant.

Also, pass any other order that it may deem fit in favour of respondent to meet the ends of
equity, justice and good conscience.

For this act of kindness, the respondent shall bound forever pray.

Place : Delhi

Date : 13th November, 2019.

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