TEAM CODE-‘A’

IN THE HON’BLE HIGH COURT OF DELHI

AT NEW DELH

IN THE MATTER OF:

SUSHANT

AGE-28 YEARS …PETITIONER

VERSUS

STATE OF N.C.T. OF DELHI …RESPONDENT

(CRIMINAL QUASHING PETITION NO. OF 2019)

WITH

ABHA

AGE-18 YEARS …APPELLANT/REVISIONIST

VERSUS

TARUN …RESPONDENT

(APPEAL NO. OF 2019)

WITH

SUSHANT

AGE-28 YEARS …APPELLANT/ REVISIONIST

VERSUS

ABHA

AGE-18 YEARS … RESPONDENT

(APPEAL NO. OF 2019)

WRITTEN SUBMISSION ON BEHALF OF APPELLANT/PETITONERS

1
 IN THE HON’BLE HIGH COURT OF DELHI

AT NEW DELH

TABLE OF CONTENT

S.NO. PARTICULARS PAGE NO.

1 COVER PAGE 1

2 TABLE OF CONTENTS 2

3 INDEX OF AUTHORITIES 3-4

4 STATEMENT OF JURISDICTION 5

5 STATEMENT OF FACTS 6-7

6 ISSUES RAISED 8

7 SUMMARY OF ARGUMENTS 9

8 ARGUMENTS ADVANCED 10-25

9 PRAYER 26

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 IN THE HON’BLE HIGH COURT OF DELHI
AT NEW DELH

INDEX OF AUTHORITIES

S.No. Statues Page

1 The Protection Of Women From Domestic Violence Act, 13,14,16,17,18,20

2005

2 Indian penal code, 1860 10,15,16

3 Hindu Marriage Act, 1955 20,21,24

4 Code of Criminal Procedure, 1973 17

S.No. Reports Page

1 185th Report Law Commission of India 21

3
S.No. Judgments Page
No.’s
1 Pinakin Mahipatray Rawal vs State Of 10
Gujarat
2 Jagdish Mangtani vs Geeta Jagdish Mangta 11
3 Rita Nijhawan Vs Balakishan Nijhawan 12
4 Shri Rajeev Chadha vs Ms. Shama Chadha 13
Nee Shama Kapoor
5 Narayan Ganesh Dastane vs Sucheta 13
Narayan Dastane
6 Chanmuniya vs Virendra Kumar Singh 16,19
Kushwaha & anr
8 Shambhu Prasad Singh vs Manjari 17
9 Savitaben somabhai bhatiya vs. state of 21
Gujarat
10 Smt. Bindu Sharma vs. Ram Prakash 23
Sharma and others
11 Harvinder Kaur vs Harmander Singh 24
Choudhry
12 Tushar Roy vs Sukla Roy 26

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 IN THE HON’BLE HIGH COURT OF DELHI
AT NEW DELH

STATEMENT OF JURISDICTION

To

Registrar,

Hon’ble High court of Delhi,

New Delhi

Sub.- Statement of Jurisdiction according to rules.

Most respectfully showeth

1. That the present Appeals/Revision are filed against the order order passed by Ld. District courts
of Delhi, so this Hon’ble High Court has Jurisdiction to hear the Present matter under section 482,
397 of criminal procedure code, 1973.
2. That the matter is fixed for 09.02.2019 in this Hon’ble Court for Arguments.

It is humbly requested to entertain this appeal/Revision in the Interest of Justice.

Requested Accordingly

Appellant/Revisionist.

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 IN THE HON’BLE HIGH COURT OF DELHI
AT NEW DELH

STATEMENT OF FACTS

It is most respectfully submitted herein as under

1. That Abha is 18 years old young girl was pursuing her studies from Ryan
International College, Delhi and she had been dating a boy named Tarun, who
was her senior in the same college.
2. That their friendship converted into live-in-relationship, their friendship converted
into live-in relationship and Abha got pregnant from this relationship..
3. That the parents of Abha decided to marry Abha with Tarun giving due respect to
the decision of their children choice with a bonafide intention.
4. That Abha was also willing to do so, but Tarun and his parents refused to accept
the offer of marriage.
5. That Tarun and his parents put baseless allegations on Abha that she is having
illicit relations with somebody else with a malafide intention to defame her and to
avoid the statutory liability of maintenance of Abha .
6. That the refusal of Tarun to marry and his bitter attitude put Abha in deep
depression which ultimately affected her physical health. But still, Abha refused
to abort the child even after the persuation from family members and relatives.
7. That Abha filed a petition for maintenance in Tis Hazari Court, Delhi on the basis
of live-in-relationship as the Tarun has deserted Abha after cohabitating with her
and spoiling her life.
8. That after refusal by Tarun to marry Abha, Abha’s father put the proposal of her
marriage to Mr. Pankaj Mehra, his childhood friend to consider Abha for his son,
Sushant aged 28 years to uphold the reputation of Abha.
9. That Sushant was a law graduate from University of Delhi and Sushant is the
youngest member of the Parliament.
10. That Abha and Sushant went to Kasauli on tour to know each other as they are
about to marry, and to know more about each other.
6
11. That Tarun came to know about Abha’s plan and reached Kasauli to meet her.
12. That Sushant enquired about Tarun as he has witnessed Tarun’s presence, sushant
with a bonafide confronted Abha about Tarun but she in order to conceal the fact
introduced Tarun as his friend.
13. That marriage between Sushant and Abha was solemnised on 12th January, 2017.
14. That After marriage, Sushant used to remain busy in the political activities being
the Member of Parliament, As he has social responsibilities towards the member
of his constituency he gives less time to Abha after their marriage.
15. That After marriage, only on a very few occasions, Sushant had intercourse with
Abha due to his busy schedule and to fulfill his marital obligations towards his
Wife.
16. That On 25-02-2017 when Sushant was coming out of a hotel, after his meeting
with party workers, he noticed that Abha was coming with Tarun from a hotel
room.
17. That on 25-02-2017 itself at around 10:00 P.M., Sushant returned home and
confronted Abha about her visit to the Hotel with a boy, as she is legally wedded
wife of Sushant.
18. That Abha refused for that and shouted at him. Both exchanged hot arguments
and after this too Sushant in order to fulfill his marital obligations had intercourse
with Abha, after avoiding this incident as he was well aware of his obligation
towards his lawfully married wife.
19. That Abha in order to harass Sushant and to take revenge filed a F.I.R. against
Sushant as he has seen Tarun and Abha coming out of a Hotel Room.
20. That Abha willfully deserted Sushant and left the company of Sushant and started
living in a rented accommodation in Dawaka.
21. That after willfully deserting Sushant Abha filed a petition for maintenance and
specific demand for separate residence in District Court at Dwarka in order to ask
for money from Sushant so that She can live with Tarun.
22. That Abha also filed a petition under Domestic Violence Act, 2005 against
Sushant, his father and mother.

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 IN THE HON’BLE HIGH COURT OF DELHI
AT NEW DELH

ISSUES RAISED

1. Whether sexual intercourse is essential for the institution of marriage

2. Whether Abha is legally wedded wife of Sushant
3. Whether Abha’s FIR is sustainable in law
4. whether maintenance is to be provided in live-in relationships
5. Whether marriage between Sushant and Abha is valid
6. Legitimacy of the child in womb of Abha

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 IN THE HON’BLE HIGH COURT OF DELHI
AT NEW DELH

Summary of Arguments

1. Whether sexual intercourse is essential for the institution of marriage

It is submitted herein that sexual intercourse is an essential
factor for the institution of marriage, in the absence of which
the institution of marriage cannot be sustained.
2. Whether Abha is legally wedded wife of Sushant
It is submitted herein that Abha is legally wedded wife of Sushant, as
the parties are living in a shared household and in a domestic
relationship as husband and wife, moreover, validity of marriage is
not disputed even by the Abha.
3. Whether Abha’s FIR is sustainable in law
It is submitted herein that F.I.R. filed by Abha is not maintainable in
terms of Exception-II of Section 375, Indian penal code, 1860.
4. whether maintenance is to be provided in live-in relationships
it is submitted that maintenance is to be provided in live-in-
relationships as the very object behind the section-125 of criminal
procedure code, 1973 to support the Woman concerned in the need of
Hour if the man neglects her and has the sufficient means to maintain
her.
5. Whether marriage between Sushant and Abha is voidable
It is submitted herein that marriage between Sushant and Abha is voidable as the
material facts as to the pre-marriage pregnancy fact has been concealed from the
person of the appellant/Revisionist.
6. Legitimacy of the child in womb of Abha
it is submitted herein that child of Abha is not the legitimate child of
Sushant, as they had no access to each other when the child could
have begotten.

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 IN THE HON’BLE HIGH COURT OF DELHI
AT NEW DELH

ARGUMENTS ADVANCED

Issue-01 Whether sexual intercourse is essential for the institution of marriage.

“Marital relationship means the legally protected marital interest of one spouse to another
which include marital obligation to another like companionship, living under the same roof,
sexual relation and the exclusive enjoyment of them, to have children, their up-bringing, services
in the home, support, affection, love, liking and so on”- Observed by Divisional bench of
Hon’ble Supreme Court1.

1. That the marriage of Abha, the defendant herein, and Sushant, the appellant herein, was
solemnized on 12.01.2017 and they are living as husband as wife in the share household
in a domestic relationship.
2. That marriage is a sacrament under the Hindu law and the parties governed by Hindu
laws owes some duty, some marital obligations over each other.
It is pertinent herein to mention that it has been held by the Hon’ble Supreme court
3. That the appellant and the defendant on number of occasions have sexual intercourse
with each other to fulfill the marital obligations towards each other being the parties to
the marriage.
4. That the appellant is a respected member of the society being the youngest Member of
Parliament in India, the appellant being the member of the Lok Sabha has always tried to
fulfill the marital obligations as he is well aware of his duty towards his wife, the
defendant herein.

1 Pinakin Mahipatray Rawal vs State Of Gujarat, Criminal appeal NO.811 OF 2004.

10
 5. That the defendant has failed to perform the marital obligation on multiple counts, firstly
the defendant has deprived the appellant of his right to sexual intercourse being the
husband of the defendant which is essentiality of a marriage.
It was observed Hon’ble Gujarat High Court that
“Matrimonial matters are matters of delicate human and emotional relationship. It
demands mutual trust, regard, respect, love and affection with sufficient play for
reasonable adjustments with the spouse. The relationship has to conform to the social
norms as well”2.
6. That the appellant is a Member of Parliament of India, as mentioned above, so he owes
some duty towards the voters of his constituency and the People of India in addition to
his duty towards her wife.
It would be pertinent to mention herein that the defendant is very well aware of this fact
at the time of inception of marriage.
7. That Sushant, the appellant herein, used to remain busy in the political activities and
spent very less time with his newly wedded wife.
It is submitted herein that this particular fact is never objected wife by the defendant.
8. That the appellant desires to join the company of the defendant and want to fulfill his
matrimonial obligations.
9. That appellant intended to have sexual intercourse with his legally wedded wife, which is
the basic right of the appellant arising out of a matrimonial bond between appellant and
defendant being the husband of the defendant.
10. That 25-02-2017 at about 10.00 P.M., Abha, the defendant herein is stepping out of the
marriage and was present in the hotel room with Tarun which is witnessed by Sushant.
11. That she use to shout at Sushant and she even dragged her husband in their home.
12. That the defendant is herself vising Tarun in the hotel room at 10.00 P.M. and in addition
to that she is depriving the appellant from his matrimonial right to have sexual
intercourse with his legally wedded wife.
13. That after all this when appellant desires to develop sexual relation with the appellant to
fulfill his marital obligations, she, the defendant files a false FIR against the appellant

2
Jagdish Mangtani vs Geeta Jagdish Mangtani’, (2003) 1 GLR 309.

11
 only to remove him from his way as he has seen the Tarun and the defendant coming out
of a Hotel room.
Leading case laws

This Hon’ble Court has held that:-

“Thus the law is well settled that if either of the parties to a marriage being a healthy physical
capacity refuses to have sexual intercourse the same would amount to cruelty entitling the other
party to a decree. In our opinion it would not make any difference in law whether denial of
sexual weakness of the respondent disabling him from having a sexual union with the appellant.
or it is because of any willful refusal by the respondent; any willful refusal by the respondent;
this is because in either case the result is the same namely frustration and misery to the
appellant due to denial of normal sexual life and hence cruelty3”

“Marriage without sex is an anathema. Sex is the foundation of marriage and without a vigorous
and harmonious sexual activity it would be impossible for any marriage to continue for long. It
cannot be denied that the sexual activity in marriage has an extremely favourable influence on a
women's mind and body. The result being that if she does not get proper sexual satisfaction, it
will lead to depression and frustration."

This Hon’ble Court has held that:-

“The conduct complained of by the respondent wife was the refusal of the appellant husband to
have sexual intercourse with her. It is to be borne in mind that a normal and
healthy sexualrelationship is the one of the basic ingredients of a happy and harmonious
marriage”4

Hon’ble Supreme Court of India has held that:-

“Sex plays an important role in married life and cannot be separated from other factors
which lend to matrimony a sense of fruition and fulfillment5”.

3
Rita Nijhawan Vs Balakishan Nijhawan AIR 1973 Delhi 200, 9 (1973) DLT 222.
4
Shri Rajeev Chadha vs Ms. Shama Chadha Nee Shama Kapoor FAO 233/2003.
5
Narayan Ganesh Dastane vs Sucheta Narayan Dastane 1975 AIR 1534, 1975 SCR (3) 967.

12
Hon’ble Supreme Court of India has held that
“It is well recognized that sex is the foundation of marriage and without a vigorous and
harmonious sexual activity it would be impossible for any marriage to continue for long.
Abstinence from intercourse effecting ill health of the wife can be held to be cruelty”6.

Issue-02 Whether Abha is legally wedded wife of Sushant

1. That Abha and sushant are married to each other on 12.01.2017.

2. That the appellant and sushant are living in the share household as husband and wife and
share a domestic relationship.
3. That the defendant has filed a case against the appellant, appellant’s Father and
appellant’s mother under The Protection of Women from Domestic Violence Act, 2005(
to be referred as Act, hereinafter, for the sake of brevity).
It is submitted that the filing of this case is a perfect proof for the existence of domestic
relationship between Sushant and Abha, as the section 12 of the act provides that

“An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved
person may present an application to the Magistrate seeking one or more reliefs under this Act:
Provided that before passing any order on such application, the Magistrate shall take into
consideration any domestic incident report received by him from the Protection Officer or the
service provider7”.[Emphasis supplied]

It is provided herein that aggrieved person and domestic relationship, as mentioned above, are
reproduced herein for the reference of this Hon’ble Court.

“Aggrieved person” means any woman who is, or has been, in a domestic relationship with the
respondent and who alleges to have been subjected to any act of domestic violence by the
respondent8;

6
Sirajmohmedkhan Janmohamadkhan vs Hafizunnisa Yasinkhan & Anr, 1981 AIR 1972, 1982 SCR (1) 695.
7
The Protection Of Women From Domestic Violence Act, 2005, Section-12.
8
The Protection Of Women From Domestic Violence Act, 2005, Section-2(A).

13
“Domestic relationship” means a relationship between two persons who live or have, at any
point of time, lived together in a shared household, when they are related by consanguinity,
marriage, or through a relationship in the nature of marriage, adoption or are family members
living together as a joint family9”.

4. That Abha and Sushant are to governed by Hindu marriage Act,1955 for this purpose,
section 05 of the Hindu marriage act,1955, which is reproduced herein-

Conditions for a Hindu marriage. —A marriage may be solemnized between any two Hindus, if
the following conditions are fulfilled, namely:—
(i) neither party has a spouse living at the time of the marriage;(ii) at the time of the marriage,
neither party—
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering from mental disorder of
such a kind or to such an extent as to be unfit for marriage and the procreation of
children; or
(c) has been subject to recurrent attacks of insanity 3 [***];]
(iii) the bridegroom has completed the age of 4 [twenty-one years] and the bride, the age
of 5[eighteen years] at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage
governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them
permits of a marriage between the two;

That all the conditions laid down under this section has been fulfilled in respect of a valid
marriage, from which a legal inference could be made that Abha, is the legally wedded wife of
Sushant.

9
The Protection Of Women From Domestic Violence Act, 2005, Section-2(F).

14
 5. That it is further submitted that the parties, i.e. Appellant and defendant are legally
married by fulfilling all the conditions of other statutes made in this behalf, Particularly
by fulfilling the conditions laid down by section 04 of THE SPECIAL MARRIAGE
ACT, 1954.

Issue-03 Whether Abha’s FIR is sustainable in law

1. That Abha and Sushant are married to each other and are living as husband and wife in
the shared household.
2. That Sushant and Abha are under a marital obligation to allow the other to have sex, as
cessation of sexual intercourse on the part of one party to a marriage will cause mental
cruelty to the other party as held by Hon’ble courts of law of the land.
It is provided herein as the Judgments are mentioned above, they are not reproduced herein for
the sake of brevity.
3. That the present FIR is bad in law as it is clearly registered in violation of the law of land,
exception-II of section 375 of the Indian penal code, 1860.
“Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is
not rape10”
.
4. That all the ingredients of this exception are satisfied in this case, which are as under
I. That Abha and Sushant are husband and wife.
II. That abha is not under fifteen years of Age, as she is of more than 18 years of
age and competent to marry.

Issue- 04 whether maintenance is to be provided in live-in relationships

“Thus, in those cases where a man, who lived with a woman for a long time and even though
they may not have undergone legal necessities of a valid marriage, should be made liable to pay
the woman maintenance if he deserts her. The man should not be allowed to benefit from the
legal loopholes by enjoying the advantages of a de facto marriage without undertaking the duties
and obligations. Any other interpretation would lead the woman to vagrancy and destitution,

10
Indian penal code, 1860 Exception-II of section 375.

15
which the provision of maintenance in Section 125 is meant to prevent11.”-Hon’ble supreme
court of India.
1. That the Learned District court failed to appreciate the facts of the case and hence
dismissing the maintenance appeal.
2. That Ld. Judge haven’t considered the important facet of this case that she is carrying in
womb the foetus which was the result of live-in-relationship between Tarun and her.
3. That the ld. Judge failed to appreciate the statute of the land, specifically The Protection
of Women from Domestic Violence Act, 2005.
4. That the ld. Judge erred in terms of The Protection of Women from Domestic Violence
Act, 2005 by holding that only legally wedded wife are only liable to be maintained.
It is provided that in the moot problem it has nowhere stated that under which law the
maintenance petition has been filed.
5. That the legislature with the intent to stop vagrancy and destitution has passed The
Protection of Women from Domestic Violence Act, 2005 as we are living in 21st century
where live-in- relationship are normal and are approved by the hon’ble supreme court of
the land.

Division bench of this Hon’ble court has stated that “The basic objective in enacting the Act is to
secure various rights to a woman living in matrimony or in a relationship akin to matrimony, or
any domestic relationship. Domestic violence, is, per se, not a criminal offence but is defined
extensively and comprehensively to include various conditions. The woman exposed to such
domestic violence is given the right to move to Court for any of the reliefs outlined in Section
12 through either a comprehensive proceeding, claiming maintenance, right to residence,
compensation etc. or even move to Court seized of any other pending proceeding, such as
divorce and maintenance etc.12”

11
Chanmuniya vs Virendra Kumar Singh Kushwaha & anr, (Arising out of SLP (Civil) No.15071 of 2009).

12 Shambhu Prasad Singh vs Manjari CRL.M.C. 3083/2011 & CRL.M.A.10914/2011

16
 6. That under section-20 of The Protection of Women from Domestic Violence Act, 2005
Abha is liable to be maintained by Tarun.
Section 20(1) of the act is reproduced herein.

“While disposing of an application under sub-section (1) of section 12, the Magistrate may
direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by
the aggrieved person and any child of the aggrieved person as a result of the domestic violence
and such relief may include but is not limited to—

(a) the loss of earnings;

(b) the medical expenses;

(c) the loss caused due to the destruction, damage or removal of any property from the control of
the aggrieved person; and

(d) the maintenance for the aggrieved person as well as her children, if any, including an order
under or in addition to an order of maintenance under section 125 of the Code of Criminal
Procedure, 1973 (2 of 1974) or any other law for the time being in force”.

It is provided herein that aggrieved person and domestic violence are of great importance to
satisfy the ingredients of this section, which are reproduced herein as under

“Aggrieved person” means any woman who is, or has been, in a domestic relationship with the
respondent and who alleges to have been subjected to any act of domestic violence by the
respondent13;
Domestic relationship, as mentioned above would mean “domestic relationship” means a
relationship between two persons who live or have, at any point of time, lived together in a
shared household, when they are related by consanguinity, marriage, or through a relationship
in the nature of marriage, adoption or are family members living together as a joint family14;

13
The Protection Of Women From Domestic Violence Act, 2005, Section 2(A)
14
The Protection Of Women From Domestic Violence Act Act, 2005, Section 2(F)

17
That it is an admitted fact that Abha and Tarun are in a relationship where they lived together in
a shared household when they are related through a relationship in the nature of marriage.
It is pertinent to mention herein that parties are living in relationship in the nature of marriage,
which is to be proved by below mentioned points:-

 That the Abha and Sushant are of legal age to marriage as they both are adult.
 That are qualified to enter into a legal marriage, including being unmarried.
 They have voluntarily cohabited.
 That they had sexual intercourse with each other, which led to pregnancy of Abha.

Shared household under The Protection of women from Domestic Violence Act, 2005 means that
“shared household” means a household where the person aggrieved lives or at any stage has
lived in a domestic relationship either singly or along with the respondent and includes such a
household whether owned or tenanted either jointly by the aggrieved person and the respondent,
or owned or tenanted by either of them in respect of which either the aggrieved person or the
respondent or both jointly or singly have any right, title, interest or equity and includes such a
household which may belong to the joint family of which the respondent is a member,
irrespective of whether the respondent or the aggrieved person has any right, title or interest in
the shared household15.”

That the parties here lived in a Domestic relationship in the shared household, which enables
Abha to be maintained by Tarun under the provision of The Protection of Women from
Domestic Violence Act, 2005 , as all the conditions are being satisfied herein.

Leading Cases in support of Argument

In the case of K.K. Nath vs. Kanchan bala Nath16 it was held that “though the mother is not the
wife of the father, the child of such father, who is in custody of his mother, is entitled to be
maintained”.

15
The Protection Of Women From Domestic Violence Act, 2005, Section 2(S).
16
1989 Cr.L.J. (NOC) 194 gau.[ Pg. 133 S.N. Misra, Cr.p.c.,1973]

18
It was observed by Hon’ble Supreme Court that “The Committee on Reforms of Criminal Justice
System, headed by Dr. Justice V.S. Malimath, in its report of 2003 opined that evidence
regarding a man and woman living together for a reasonably long period should be sufficient to
draw the presumption that the marriage was performed according to the customary rites of the
parties. Thus, it recommended that the word `wife' in Section 125 Cr.P.C. should be amended to
include a woman who was living with the man like his wife for a reasonably long period17”.

Issue-05 Whether marriage between Sushant and Abha is voidable.

1. That concealment of material fact about the pre marriage pregnancy of the defendant
from another man makes this marriage voidable on two counts ‘concealment of material
fact’ and ‘pre marriage pregnancy of the defendant from another man’, to be read with
section 12(1)(C) and 12(1)(D) of Hindu marriage Act,1955, which read as follows:-

“12 (1)(c)- that the consent of the petitioner, or where the consent of the guardian in marriage of
the petitioner [was required under section 5 as it stood immediately before the commencement of
the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978)*], the consent of such
guardian was obtained by force 14 [or by fraud as to the nature of the ceremony or as to any
material fact or circumstance concerning the respondent]18”

“12(1)(d) that the respondent was at the time of the marriage pregnant by some person other
than the petitioner19.”

Here, it would be In the interest of the administration of Justice to mention that this Hon’ble
court can presume that the parties are governed by Hindu marriage act, 1955 to be read with
section 114 of Indian Evidence Act, 1872, which is reproduced herein,

“Court may presume existence of certain facts. —The Court may presume the existence of any
fact which it thinks likely to have happened, regard being had to the common course of natural

17
Chanmuniya vs Virendra Kumar Singh Kushwaha & anr(Arising out of SLP (Civil) No.15071 of 2009)

18
Hindu Marriage Act, 1955, Section 12(1)(C).
19
Hindu Marriage Act,1955, Section 12(1)(D)

19
events, human conduct and public and private business, in their relation to the facts of the
particular case. “

It would be pertinent to mention herein that section 114 of Indian evidence act provides nine
illustrations but they are not reproduced herein for the sake of brevity.

It is submitted herein that Law commission of Indian in its 185th report was pleased to state
herein that

“Before we do so, we may however, point out that the illustrations are not intended to lay down
rules of law which are exhaustive. They are merely examples and it is always open to the Court
to go back to the section and apply it20”

It is further provided that the court can raise a presumption as to the applicability of Hindu
marriage Act,1955, as the moot problem in question is silent on the applicability of personal law
to the parties, which is indeed necessary for the sake of arguments and for the interest of Justice,
so this Hon’ble court while giving due consideration to the facts of the case could presume that
the parties are to be governed by Hindu marriage Act,1955, to be read with 185th report of law
commission of India, which has stated the settled law with regard to section 114 of Indian
evidence act,1872, which reads here as under that

“When the court is prepared to accept the direct evidence of a witness or an expert, sec. 114
does n The Protection Of Women From Domestic Violence Act, 2005 ot come into play. It is only in
their absence, that sec. 114 is resorted to.21”.

As herein, the personal law of the parties has not been defined, the court has the power to
presume the fact that parties are governed by Hindu Marriage Act, 1955.

“The section enables the court to presume the existence of any fact which the court thinks likely
to have happened, regard being had to

(a) the common course of natural events;

(b) human conduct; and

20
185th report of Law Commission of India.
21
185th Report Law Commission of India, Page- 236 Para-I.

20
 (c) public and private business.”

It is further stated that As to what is ‘common course of natural events, human conduct and
public and private business’ depends upon the common sense of the Judge acquired from
experience of worldly and human affairs, tradition or convention.

That Hon’ble Supreme court has held that “Section 125 of the code has been enacted in the
interest of a wife and one who wants to take the benefit under sub-section (1) of section 125 has
to establish that she is the wife of the person concerned. The issue can be decided only by a
reference to the law applicable to the parties. It is only when such a relationship with reference
to personal law is established that an application for maintenance can be maintained. The issue,
whether 125 is attracted or not , cannot be answered except by a reference to the appropriate
law governing the parties.22”

‘Concealment of material fact’

2. That a marriage would not be considered as valid, if the material fact has been concealed
from either of the party to a marriage.
That herein, the fact about the pregnancy of the respondent herein, has been concealed
from the appellant herein, there were multiple opportunities for the respondent to make
the petitioner aware about the fact of the pregnancy but she haven’t told this material fact
to the husband , and with shows the malafide of the the respondent, as the
appellant/petitioner is a member of parliament, Law student and a very ambitious boy
doing well in his life, so, to cheat the appellant, the respondent concealed this material
fact from the person of appellant/petitioner.
It is to be noted that this particular facts needs to be communicated to the
appellant/petitioner, as he and the respondent are going to live together and no one else,
In this regard a reference is to be made to section 12(1)(C) of Hindu marriage Act,1955
which clearly states that if the party to a marriage is Minor than the guardian could give

22
Savitaben somabhai bhatiya vs. state of Gujarat 2005 Cr.L.J. 2141 (S.C.)

21
 consent for marriage but if the party is major it is required to make himself aware of all
the facts concerning the respondent
Section 12(1)(C) of Hindu Marriage Act,1955 is reproduced herein

(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the
petitioner [was required under section 5 as it stood immediately before the commencement of the
Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978)*], the consent of such guardian
was obtained by force [or by fraud as to the nature of the ceremony or as to any material fact or
circumstance concerning the respondent]; [Emphasis supplied]

3. That the material facts has been concealed from the body of appellant/petitioner, with a
sole intention to cheat the appellant/petitioner, which is quite evident from the fact that
when appellant/petitioner and respondent herein, went to Kasauli on a pre-marriage trip
with the sole purpose to know each other, as the parties are about to get married and they
don’t know much about each other, there the respondent introduced Tarun as his friend
But when Sushant enquired about the guy, as he/Tarun reached Kasauli to meet her,
which satisfactorily shows that respondent has concealed the fact from
appellant/petitioner herein, about the Tarun and the pregnancy.

Needless to say, Tarun and Abha/Respondent have lived in a Live-in relationship before
marriage.

4. That the appellant/petitioner, being a body of high ambition ignored the matter despite the
fact that they are on a pre-marriage trip, If the appellant/petitioner knows about the fact about
the Tarun he could take a decision as to marriage, but as he was not aware of true and
material fact.
Relevant Judicial pronouncements

Hon’ble Allahabad High Court has observed that “the contention of the petitioner was that she
would not have given consent to marry the respondent No.1 if she had known the real fact that
the respondent No.1 did not have a secured job in the Sugar Factory. It was said that the
petitioner expressed her willingness to marry with the respondent No.1, because the latter
represented to her before the marriage that he was employed in the Sugar Factory on a monthly
salary of Rs.1,700/-. In such a fact, the Division Bench of the Allahabad High Court was of the
22
view that every girl before marriage, and more so, a well-educated girl like the petitioner in that
case, would prefer to marry, a stably-employed person to secure her future and marriage with an
unemployed person would be the last resort. According to the Division Bench, the petitioner,
being a well-educated girl, having much higher academic standard than that of the husband,
would have weighed pros and cons before giving consent if she knew the real fact. She had
nodded for the marriage on the consideration that the respondent No.1 was possessed of an
attractive job; and therefore, the fact of employment was a material fact23.

It is submitted that the fact about pregnancy of respondent is a material fact because it will have
bearing on social reputation of appellant/petitioner, it is needless to say the appellant/petitioner is
a member of parliament and hence have a respect in the society if this particular fact is known to
appellant/petitioner could take a different decision as to marry respondent for the sake of his
reputation, with the malafide intention respondent concealed his fact from the
appellant/petitioner.

Appellant/petitioner gave his consent without knowing this particular fact, and if the consent is
not free from misrepresentation, then the contract to a marriage will not sustain, that will make
the marriage voidable r/w 12(1)(C ) of Hindu Marriage act, 1955.

This Hon’ble Court has held that “Marriage is a contract of the greatest importance in civil
institutions, and it is charged with a vast variety of rights and obligations. Right of property are
attached to it, The essence of matrimony, is consent24.”

Here, the respondent from the very inception has not fulfilled her obligation, as she is under an
obligation to disclose all the material facts to the appellant, and furthermore she obtained the
consent of petitioner/appellant with concealing the material fact.

MARRIAGE is defined in the Encyclopedia Brittannica, 11th ed. vol. 17, p. 753 as "a physical,
legal and moral union ii between man and woman in complete community of life for the
establishment of a family."

23
Smt. Bindu Sharma vs. Ram Prakash Sharma and others AIR 1997 All 429
24
Harvinder Kaur vs Harmander Singh Choudhry AIR 1984 Delhi 66.
23
 Issue- 06 Legitimacy of the child in womb of Abha

1. That marriage between the appellant and respondent solemnized on 12th January, 2017.
2. That after the marriage Sushant used to remain busy in the political activities, as he is
Member of Parliament and a law student as well, which requires time as a result of which
he spent very less time with his newly wedded wife, Abha/Respondent herein due to
which the Emotional bonding between the two could not develop.
That Appellant and defendant lived for merely one month, more or less, as husband wife,
i.e. from 12.01.2017 to 25.02.2017. and it as an admitted fact that they had sexual
intercourse only few times.
That prior to 12.01.2017 appellant has no access to respondent, as they both met only few
days prior to the marriage when they went to Kasauli.
3. That the appellant is not the legitimate father of the child of respondent, herein, as they
had no access to each other prior to the marriage, to be read with section 112 of Indian
evidence Act,1872.
Section 112 of Indian Evidence Act, 1872 is reproduced herein,

Birth during marriage, conclusive proof of legitimacy.—The fact that any person was born
during the continuance of a valid marriage between his mother and any man, or within two
hundred and eighty days after its dissolution, the mother remaining unmarried, shall be
conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties
to the marriage had no access to each other at any time when he could have been begotten.

4. That the concerned child has been begotten four to five months back, as the appellant got
to learn this fact from the physical changes in Abha, the respondent herein, and it a fact
that body changes in a woman occur near about 15 weeks of pregnancy, and it is an
admitted fact that both the parties have no access to each other prior to marriage, as
mentioned above.
5. That the respondent is duty bound to disclose this material fact at the very inception of
the talks of marriage, but she didn’t disclose this fact to the appellant with a malafide
intention.

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 Hon’ble Calcutta High court was pleased to held that “The term 'access' as used
in Section 112 has been consistently interpreted to include the existence of opportunities
for marital intercourse between the husband and the wife at the time when the child could
have been begotten according to the ordinary course of nature. A conclusive presumption
of legitimacy attracted by Section 112 can be rebutted only by showing that the husband
and the wife had no access to each other at any time when the child could have been
begotten. What is required to be shown for rebutting the conclusive presumption which is
a presumption of law is that the husband and the wife had no access to each other 'at any
time' when the child 'could have been begotten'. The words "at any time" and "could have
been begotten" are very significant. The requirement of the section for rebutting the
conclusive presumption is not to show 'non-access' exactly 'at the time when the child
was begotten', but the requirement is still more onerous and pervasive so much so that
the contending party will have to show non-access 'at any time' when the child 'could
have been begotten' which means non-access not at any particular moment but during the
whole span of the time when the conception according to the ordinary course of nature
possibly could have taken place. The express terms of the provision of Section
112 require the contending party to show that during the whole of the period when the
child could have been begotten according to the ordinary course of nature, the
husband and the wife had no access to each other25”.
Here, it is an admitted fact that the parties have no access to each other prior to the
marriage.

6. That in the above mentioned circumstances it is crystal clear that Child of Abha is not
from Sushant.

25
Tushar Roy vs Sukla Roy 1993 Cri .L.J. 1659
25
 IN THE HON’BLE HIGH COURT OF DELHI

AT NEW DELH

PRAYER

1. Pass an order of Quashing the F.I.R. filed against the Petitioner/Accused,and,

2. Pass an order of maintenance in favor of Abha, the appellant/Revisionist, and,
3. Pass an order in favor of Sushant by setting aside the order passed by Ld. District
Court in interest of Justice, and,
4. Pass any other order, Relief as the Hon’ble Court deem fit it do in the
circumstances of the Case.

Prayed Accordingly.

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