CMRU SOLS, MOOT COURT SOCIETY MUNICIPAL ROUNDS 2022-23

BEFORE THE HON’BLE SUPREME COURT OF INDICA

BEFORE THE HON’BLE SUPREME COURT OF INDICA

BEFORE SUBMISSION TO

THE HONOURABLE CHIEF JUSTICE AND HIS COMPANION JUSTICES

OF

BEFORESUPREME
THE HONOURABLE SUBMISSION TO OF INDICA
COURT

THE HONOURABLE CHIEF JUSTICE AND HIS COMPANION JUSTICES

OF

PETITIONER
THE HONOURABLE SUPREME COURT OF INDICA

V.
PETITIONER

RESPONDENT
V.

RESPONDENT

PETITION FILED UNDER ARTICLE 32 OF THE CONSTITUTION

PETITION FILED UNDER ARTICLE 32 OF THE CONSTITUTION

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MEMORIAL ON BEHALF OF THE RESPONDENTS

TABLE OF CONTENTS
1) LIST OF ABBREVIATIONS
2) INDEX OF AUTHORITIES
3) STATEMENT OF JURISDICTION
4) STATEMENT OF FACTS
5) ISSUES RAISED
6) SUMMARY OF ARGUMENTS
Issue 1: Whether Section 9 of The Hindu Marriage Act, 1955
violates Article 14 of the Constitution of Indica?

Issue 2 : Whether Section 9 of The Hindu Marriage Act, 1955

violates Article 21 of the Constitution of Indica?
7) ARGUMENTS ADVANCED
ISSUE 1
1. That Section 9 of The Hindu Marriage Act, 1955 does not violate
Article 14 of the Constitution of Indica.
1.1 Personal Laws not susceptible to part III of Const. And therefore
cannot be challenged under Art.14.
1.2 Section 9 of HMA,1955 is gender neutral and no burden entrusted on
women
ISSUE 2
2. That Section 9 of The Hindu Marriage Act, 1955 does not violate
Article 21 of the Constitution of Indica
2.1 Personal laws not susceptible to Part III of Const. And therefore
cannot be challenged under Art.21.
2.2 Sec 9 of HMA,1955 does not restrict freedom of an Individual
towards their choice
2.3 Provison does not violate the ight to dignifies life or the right to
privacy of and Individual
8) PRAYER

LIST OF ABBREVIATIONS
¶  Paragraph

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AIR  All India Reporter 

Art  Article 

Const.  Constitution 

HC  High Court 

Hon’ble  Honourable 

Ors.  Others

Pet  Petitioner

PIL  Public Interest Litigation

Res  Respondent

SC  Supreme Court

SCC  Supreme Court Cases

SCR  Supreme Court Reporter

Sec  Section

TN  Tamil Nadu

UP  Uttar Pradesh

W.B.  West Bengal

Vs/V  Versus

INDEX OF AUTHORITIES
CASES REFERRED
1) State of Bombay v. Narasu Appa Mali AIR 1952 Bom 84
2) Krishna Singh v. Mathura Ahir (AIR 1980 SC 707)
3) Maharshi Avdhesh v. Union of India (1994 Supp (1) SCC 713)

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4) Ahmedabad Women Action Group & Ors. v. Union of India (1997 3 SCC 573)
5) Reynold Rajamani v. Union of India (1982 2 SCC 474
6) Sareetha v. T. Venkata Subbaiah
7) Harvinder Kaur v.Harmander Sing, AIR 1984 Delhi 66
8) Suchita Srivastava & Anr vs. Chandigarh Administration (2009)

STATUTES REFERRED
1) Constitution of india
2) Hindu Marriage Act,1955

BOOKS REFERRED
1) Basu D.D, Constitutional of India (22nd ed.)
2) Dr. J.N Pandey, Constitutional Law of India (56th ed.)
3) MP Jain, Constitution of India (8th ed.)
4) Flaviaagnes, Family Law II : Marriage,Divorce nd Matrimonial Litigation
5) Mulla's Hindu Law-15th Edn.
6) Hindu Law (with Exhaustive Case Law) by Universal's Concise Commentary

ONLINE SOURCES
1) https://www.manupatrafast.com/
2) https://advance.lexis.com/
3) www.scconline.com/

STATEMENT OF JURISDICTION

It is most humbly submitted that the Petitioner has approached this Hon’ble Court through
this Court’s own Motion under Article 32 of the Constitution of India.

32. (1) The right to move the Supreme Court by appropriate proceedings for the enforcement
of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and

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certiorari, whichever may be appropriate, for the enforcement of any of the rights
conferred by this Part.
(3) (3) Without prejudice to the powers conferred on the Supreme Court by clause (1)
and (2), Parliament may by law empower any other Court to exercise within the local
limits of its jurisdiction all or any of the powers exercisable by the Supreme Court
under clause (2)
(4) (4) The right guaranteed by this Article shall not be suspended except as otherwise
provided for by this Constitution.

STATEMENT OF FACTS

1. Mr. Sham aged 25 and Ms. Gauri aged 24 registered their marriage under the Hindu
Marriage Act, 1955 on 23rd November, 2021 also by following the necessary Hindu
Ceremonies. The partners lived together happily in Delhi along with the husband’s
parents.
2. After a few months, Ms. Gauri under the influence of her parents who had not given
assent for their daughter’s marriage with Mr. Sham and was in disagreement
throughout the whole term since the solemnization of their marriage, returns back to

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her parents in Bangalore by completely disconnecting all contacts with her husband in
Bangalore without any reasons.
3. Mr. Sham made repetitive efforts to reunite with his wife by asking her to return to his
place of residence but the same was turned down by Ms. Gauri each time. Following
this Mr. Sham files a petition under Section 9 of the Hindu Marriage Act, 1995 for
restituting his conjugal right to the marriage with Ms. Gauri.
4. The Hon’ble Court granted the prayer in favor of Mr. Sham but Ms. Gauri was
displeased and therefore files a PIL through the organization ‘KRIPA’ – an
organization which works for women’s rights and equality, of which Gauri was also a
member, before the Hon’ble Supreme Court of Indica in March 2022. The petition
challenged the Constitutional validity of Section 9 of the Hindu Marriage Act, 1955
claiming it to be violative of Article 14 and Article 21 of the Indian Constitution.
5. The petitioners emphasized on the matter that although the law was gender neutral it
indirectly enforced a burden on women in general. The fact that the law of conjugal
remedy was imbibed from the English laws where women were considered as a
chattel, substantiates their contention. The petitioners also argue that it is a matter of
personal choice to decide whether whom to live with or not and this should not be a
matter of enforcement by law.

STATEMENT OF ISSUES

ISSUE 1

Whether Section 9 of The Hindu Marriage Act, 1955 violates

Article 14 of the Constitution of Indica?

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ISSUE 2

Whether Section 9 of The Hindu Marriage Act, 1955 violates

Article 21 of the Constitution of Indica?

SUMMARY OF ARGUMENTS

ISSUE 1: THAT Section 9 of The Hindu Marriage Act, 1955 does

not violate Article 14 of the Constitution of Indica.

It is most humbly submitted before this Hon’ble Court that the Section 9 of The Hindu
Marriage Act, 1955 does not violate Article 14 of the Constitution of Indica. This Contention
will be dealt with majorly in two parts. Firstly, personal laws are not susceptible to Part III of

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the Constitution and therefore cannot be challenged in the court for infringement of
fundamental rights under Articles 14. Secondly, Section 9 is a gender neutral provision and it
does not intend to put the burden on any particular gender. The provision was inculcated to
respect the institution of marriage progressively and yet imbibe a sense of responsibility
undertaken by the partners voluntarily, while marrying, not just to each other but also to the
families and the society at large.

Issue 2: That Section 9 of The Hindu Marriage Act, 1955 does not
violate Article 21 of the Constitution of Indica.

It is most humbly submitted before this Hon’ble Court that the Section 9 of The Hindu
Marriage Act, 1955 does not violate Article 21 of the Constitution of Indica. This Contention
will be dealt with majorly in three parts. Firstly, personal laws are not susceptible to Part III
of the Constitution and therefore cannot be challenged in the court for infringement of
fundamental rights under Articles 21. Secondly, section 9 of the Hindu Marriage Act does not
restrict the freedom of the individual towards his/her choice but instead gives him/her a
chance to reinstate the mutual relationship under reasonable grounds. The law merely exerts a
support towards cohabitation which necessarily does not intend to force physical or mental
reunion, if the nature of the relationship between the partners is as such. Thirdly, the
provision also entitles a right upon the partners in a married relationship to lead a dignified
life wrt to their exposal to the society and the individual autonomy of a person should be
dealt in parallel with that of the society at large to enable a harmonial living standard.

ARGUMENTS ADVANCED
ISSUE 1

That Section 9 of The Hindu Marriage Act, 1955 does not violate
Article 14 of the Constitution of Indica.

1. It is most humbly submitted before this Hon’ble Court that the Sec.9 of the Hindu
Marriage Act, 1955 does not violate Art.14 of the Constitution of Indica. This

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Contention will be dealt with majorly in two parts. Firstly, personal laws are not
susceptible to Part III of the Constitution and therefore cannot be challenged in the
court for infringement of fundamental rights under Art. 14. Secondly, Sec 9 is a
gender neutral provision and it does not intend to put the burden on any particular
gender. The provision was inculcated to respect the institution of marriage
progressively and yet imbibe a sense of responsibility undertaken by the partners
voluntarily, while marrying, not just to each other but also to the families and the
society at large.

1.1 PERSONAL LAWS NOT SUSCEPTIBLE TO PART III

OF CONST. AND THEREFORE CANNOT BE
CHALLENGED UNDER ART.14.
2. The Const. of India guarantees to its citizen the Freedom of Conscience and free
profession, practice and propagation of religion, the freedom to manage its religious
affairs under Part III i.e The Fundamental Rights chapter of the Indian Constitution.
The same part III of the constitution also guarantees to its citizens the right to equality
before the law or equal protection of the laws, the prohibition of discrimination on
grounds of religion, caste, sex etc, the right to liberty which includes within itself the
right to live with dignity and let alone to mention that even Art. 25 which grants the
freedom of religion is also subjected to the other fundamental rights and thus is not
absolute.
3. Article 13 of the constitution provides for the judicial review under the Indian
constitution which enable the courts to strike down laws which goes contrary to the
fundamental right.In State of Bombay v. Narasu Appa Mali 1, The Hindu Bigamous
Marriages Act, which under sec 4 rendered the bigamous marriage void among
Hindus after the coming into force of the act and sec 5 which made the bigamy
punishable with maximum 7 years of imprisonment etc, was challenged on the ground
of Art. 25, 14 and 15 . Art 13 clearly says that all Laws in force in the territory of
India immediately before the commencement of this constitution, in so far as they are
inconsistent with provision of part 3, shall to that extent become void. By the virtue of
that the court should have examined the vires of personal law against article 14 and
15(1) but before doing that the court chose to examine that whether the expression 'all
laws in force' includes within it's ambit "Personal laws ?" Both the Judges i.e. Chagla
J. And Gajendragadkar J. gave their separate judgments and reached the same
1
State of Bombay v. Narasu Appa Mali AIR 1952 Bom 84

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conclusion that the Personal laws doesn't come under the definition of 'Law in Force'
under Art 13 and therefore cannot be subjected to the Judicial Review under the
Indian Constitution .
4. There can be no doubt that the personal laws are in force in a general sense ; they are
in fact administered by the Courts in India in matters falling within their purview. But
the expression ' laws in force" is used in Article 13(1) not in that general sense. This
expression refers to what may compendious be described as statutory laws. There is
no doubt that laws which are included in this expression must have been passed or
made by a Legislature or other competent authority, and unless this test is satisfied it
would not be legitimate to include in this expression the personal laws merely on the
ground that they are administered by Courts in India. It is the statutory law which is
intended to be included in the expression "laws in force' in Article 13(1) and since the
personal laws do not derive their validity on ground of being made by the legislature,
they cannot be included under the expression 'Law in force' in art 13(1).
5. In Krishna Singh v. Mathura Ahir 2a two judge Bench of the Supreme Court was
considering weather a shudra could become a sanyasi. While holding that if the
custom and usage permitted he could so become, the Court held that in the absence of
such usage or custom he could not be so ordained. The High Court had held that any
handicap suffered by a Shudra according to the personal law would be in violation of
Articles 14 and 15 of the Constitution. It would be violative of the equality clause as
also it would be discrimination on the basis of caste. Frowning upon this observation
the Supreme Court state.
" In our opinion, the learned judge failed to appreciate that part III of the
Constitution does not touch upon the personal laws of the parties. In applying the
personal laws of the parties, he (the High Court judge) could not introduce his own
concepts of modern times but should have enforced the law as derived from
recognised and authoritative sources of Hindu laws, i.e. Smritis and commentaries
referred to, as interpreted in the judgments of various High Courts, except where such
law is altered by any usage or custom or abrogated by statute."
6. In Maharshi Avdhesh v. Union of India3 the Petition was filed under Article 32 of the
Constitution seeking (a) enactment of the Uniform Civil Code; (b) for a declaration

2
Krishna Singh v. Mathura Ahir (AIR 1980 SC 707)
3
Maharshi Avdhesh v. Union of India (1994 Supp (1) SCC 713)

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that Muslim Women (Protection of Rights on Divorce) Act, 1986 was void as being in
violation of Art 14 and 15 of the Constitution and (c) For a direction against the
Respondents from enforcing the Shariat Act. The Petition was dismissed by a two-
judge Bench of the Supreme Court with an observation that these are issues for the
legislature. Therefore the Supreme Court held that even codified personal law cannot
be tested on the touchstone of fundamental rights.
7. in Ahmedabad Women Action Group & Ors. v. Union of India. 4Different
organisations had challenged through various Petitions a number of discriminatory
aspects of personal laws - both codified and uncodified across religions. The Court,
relying on the earlier decisions held that the matters pertained to legislative action and
the Court could not interfere.
8. In Reynold Rajamani v. Union of India5.The excerpts of this judgment on which
reliance was placed upon by the Supreme Court in the AWAG case pertain to prayers
by the parties to increase the grounds available for divorce under the Indian Divorce
Act. It was also argued in that Petition that divorce by mutual consent should be
available even under the Indian Divorce Act. It was in this context that the Supreme
Court observed that adding provisions to a Statute was a legislative act.

1.2 SECTION 9 OF HMA,1995 IS GENNDER NEUTRAL AND

NO BURDEN ENTRUSTED ON WOMEN
9. Gender is an essential part of human life. Our gender can have an impact on our life
duties, rights, and responsibilities, as well as our decisions. These choices and actions
are then limited by the laws that govern us, and laws play a significant role in
pursuing our gender identity. Today, we live in a society where gender equality and
civil rights are promoted by various cultures. To comprehend gender-related rights
and legislation, however, one must first dismantle the gender idea. It is a socially and
culturally constructed term that separates different qualities between men and women,
as well as boys and girls, according to the United Nations.
10. Gender equality impacts every member of the community as a whole and forms the
basic cornerstone of a fair society. Although India has been a country that has
exhibited the inheritance of a patriarchal norm it is worth enough to mention that
4
Ahmedabad Women Action Group & Ors. v. Union of India (1997 3 SCC 573)
5
Reynold Rajamani v. Union of India (1982 2 SCC 474

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there has been enormous efforts made to recognise and respect the idea of promoting
a gender neutral legislature. The law in question as per Sec.9 of HMA, 1955 is no
exception as the words itself does not bias any particular gender or class.
11. The remedy of conjugal rights is gender neutral in the constitution and gender neutral
in its operation, and in reality the remedy is availed of by spouses of both sexes and
no evidence has been led to establish any discrimination in the operationalisation of
the remedy. The remedy enables both sexes to enforce their marital rights within a
reasonable framework and in no way does it create an unequal playing field.
12. Section 9 of the HMA, 1955 not only restores conjugal rights but also allows the
petitioner to claim maintenance under sec 25 of the HMA 1955 it is important to
know that maintenance under these rules.
13. may be requested even if the maintenance activity is still in progress as a result a wife
who does not want her marriage to be disrupted must obtained maintenance from her
husband so these rules even though the marriage is not dissolving.
14. Even in the case of T. Sareetha v. T. Venkata Subbaiah6 although the judges gave an
opinion as to decide that the sec.9 of HMA was violative of Art.21 of the Indian
Const., the Learned judge further observed that though Section 9 of the said Act did
not in form offend the classification test, inasmuch as it made no discrimination
between a husband and wife, on the other hand, by making the remedy of restitution
of conjugal rights equally available both to wife and husband, it apparently satisfied
the equality test.
15. It may be mentioned that conjugal rights may be viewed in its proper perspective by
keeping in mind the dictionary meaning of the expression "Conjugal"7notes the
meaning of 'conjugal' as "of or pertaining to marriage or to husband and wife in their
relations to each other". In the Dictionary of English Law, 8Earl Jowitt defines
'conjugal rights' thus: "The right which husband and wife have to each other's society
and marital intercourse." There occurs no distinguishment s to men or women being
given an advantage over the other.
16. The current era is not such that women have enormous difficulties and needs to be
given any special status inroder to treat them as equals. The status of women have
uplifted and they have their own wilful choice to make. Marriage is a voluntary action
6
T. Sareetha v. T. Venkata Subbaiah
7
Shorter Oxford English Dictionary, 3rd Edn. Vol. I page 371
8
English Law, 1959 Edn. at page 453,

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nd once committing to the same it can be no play as to withdraw as per the whims and
fantasies of either of the spouse. The provision does not inherently put any burden on
a specific gender but only allows equal rights to both men and women as partners in
a marital relationship with and among each other.

ISSUE 2

That Section 9 of The Hindu Marriage Act, 1955 does not violate
Article 21 of the Constitution of Indica
17. It is most humbly submitted before this Hon’ble Court that the Sec 9 of The HMA,
1955 does not violate Art 21 of the Constitution of Indica. This Contention will be
dealt with majorly in three parts. Firstly, personal laws are not susceptible to Part III
of the Const and therefore cannot be challenged in the court for infringement of
fundamental rights under Art 21. Secondly, sec 9 of the HMA does not restrict the
freedom of the individual towards his/her choice but instead gives him/her a chance to
reinstate the mutual relationship under reasonable grounds. The law merely exerts a
support towards cohabitation which necessarily does not intend to force physical or
mental reunion, if the nature of the relationship between the partners is as such.
Thirdly, the provision also entitles a right upon the partners in a married relationship
to lead a dignified life wrt to their exposal to the society and the individual autonomy
of a person should be dealt in parallel with that of the society at large to enable a
harmonial living standard.

2.1 PERSONAL LAWS NOT SUSCEPTIBLE TO PART III OF

CONST. AND THEREFORE CANNOT BE CHALLENGED
UNDER ART.21
18. Although in theory, the state's legislative power to make laws on personal laws is not
subject to any constitutional restriction. The successive governments at the center
have adopted a strategy of exempting the personal laws from any direct reform. Of
course, all these laws have been subjected to the few legislative measures [for
example, the law on child marriage and the dowry] that have been adopted for all
Indian citizens. But in general since personal laws of each community is distinct and
the content of each of them are to be interpreted for the larger good of the society for

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enabling coexistence of the people belonging to the various sectors, the courts and the
legislatures have relied on keeping the personal laws intact with not much of
amendments.
19. Any law in force at the time of coming into force of the Constitution of India or
enacted after that which is in conflict with the chapter on fundamental rights will be
void to that extent. This is with regard to all the laws in India with the exception of
Personal Laws. If the personal laws were also covered by Articles 13 and 372 of the
Const, they would be void to the extent that they are in contravention of Articles 14,
15 and 21 of the Const; however this is not the case.Over the years, the Supreme
Court has taken different views while dealing with personal laws. In a number of
cases it has held that personal laws of parties are not susceptible to Part III of the
Const dealing with fundamental rights. Therefore they cannot be challenged as being
in violation of fundamental rights, especially those guaranteed under Articles 14, 15
and 21 of the Constitution of India.

2.2 SEC.9 OF HMA,1955 DOES NOT RESTRICT FREEDOM

OF AN INDIVIDUAL TOWARDS THEIR CHOICE
20. In India it may be borne in mind that conjugal rights i.e. right of the husband or the
wife to the society of the other spouse is not merely creature of the statute. Such a
right is inherent in the very institution of marriage itself. 9 There are sufficient
safeguards in Sec. 9 to prevent it from being a tyranny. The importance of the concept
10
of conjugal rights can be viewed in the light of the report where it is stated thus:
"Moreover, the essence of marriage is a sharing of common life, a sharing of all the
happiness that life has to offer and all the misery that has to be faced in life, an
experience of the joy that comes from enjoying, in common, things of the matter and
of the spirit and from showering love and affection on one's offspring. Living together
is a symbol of such sharing in all its aspects. Living apart is a symbol indicating the
negation of such sharing. It is indicative of a disruption of the essence of
marriage-"breakdown" and if it continues for a fairly long period, it would indicate
destruction of the essence of marriage- "irretrievable breakdown". Sec. 9 only is a
codification of pre-existing law.

9
Mulla's Hindu Law-15th Edn. p. 567-Para 443.
10
Law Commission-71st Report on the Hindu Marriage Act, 1955- "Irretrievable Breakdown of Marriage as a Ground of
Divorce, Para 6.5

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21. Rule 32 of Order 21 of the Code of Civil Procedure deals with decree for specific
performance for restitution of conjugal rights or for an injuction. Sub-rule (1) of Rule
32 is in these terms:
"Where the party against whom a decree for the specific performance of a contract, or
for restitution of conjugal rights or for an injunction, has been passed, has had an
opportunity of obeying the decree and has willfully failed to obey it, the decree may
be enforced in the case of a decree for restitution of conjugal rights by the attachment
of his property or, in the case of a decree for the specific performance of a contract, or
for an injuction by his detention in the civil prison, or by the attachment of his
property, or by both."
22. It is significant to note that unlike a decree of specific performance of contract, for
restitution of conjugal rights the sanction is provided by court where the disobedience
to such a decree is willful i.e. is deliberate, in spite of the opportunities and there are
no other impediments, might be enforced by attachment of property. So the only
sanction is by attachment of property against disobedience of a decree for restitution
of conjugal rights where the disobedience follows as a result of a willful conduct i.e.
where conditions are there for a wife or a husband to obey the decree for restitution of
conjugal rights but disobeys the same in spite of such conditions, then only financial
sanction, provided he or she has properties to be attached, is provided for.
23. This is so as an inducement by the court in appropriate case when the court has
decreed restitution for conjugal rights and that the court can only decree if there is no
just reason for not passing decree for restitution of conjugal rights to offer inducement
for the husband or wife to live together in order to give them an opportunity to settle
up the matter amicably. It serves a social purpose as an aid to the prevention of break-
up of marriage.
24. The provision in question therefore is not intended to restrict a person's liberty of
choice but to confer certain duties to uphold the institution of marriage. India is a
country wherein laws are enacted within the frontiers of moral backing. Unlike
western countries the very inception of the concept of marriage was invoked inorder
to give women a dignified status as gainst the notion of considering them as a
property or Chattel. The concept of marriage was introduced to recognise that women
cannot be bought like a product or a property, instead they were valuable and needs
to be respected and not traded. Extending from these cultures until now, the various

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laws even the one in question also has dealt with securing the ties of marriage as a
respectful one that is accompanied by its own rules and rights.

2.3 PROVISION DOES NOT VIOLATE THE RIGHT TO A

DIGNIFIED LIFE OR THE RIGHT TO PRIVACY OF AN
INDIVIDUAL
25. Marriage among Hindus is considered as a holy and a sacrosanct union. It is a
religious sacrament that binds a man and a woman together in a permanent
relationship.In Tekait Mon Mohini Jemadai vs Basant Kumar Singh(ii), the court
held that marriage under Hindu law was a sacrament, an indissoluble union of flesh
with flesh, bone with a bone to be continued even in the next world.Be that as it may,
marriage once solemnized, whether contractual or sacramental gives rise to a bundle
of rights. It changes the status of the couple to legally wedded husband and wife,
legitimacy is conferred on children born out of this marriage. Marriage thus marks the
beginning of a mutual respect not just between two individuals but also between the
two different society and circumstances each of them posses.
26. The restitution of conjugal rights is a positive remedy that is given to a spouse to
protect their marriage, to facilitate cohabitation among couples, and to save the
sanctity of marriage.Delhi HC in Harvinder Kaur v.Harmander Sing 11, held section 9
of the Hindu Marriage Act as valid. Justice Krishna Iyer observed, “Introduction of
the Constitutional Law in the Home is most inappropriate, it is like introducing a bull
in a China shop”.
27. In the said decision, the learned judge of the Delhi High Court expressed the view that
Section 9 of the said Act was not violative of Articles 14 and 21 of the Constitution.
The learned judge noted that the object of restitution decree was to bring about
cohabitation between the estranged parties so that they could live together in the
matrimonial home in amity. The leading idea of Section 9 was to preserve the
marriage.
28. From the definition of cohabitation and consortium, it appeared to the learned judge
that sexual intercourse was one of the elements that went to make up the marriage, but
that was not the summum bonum. The courts do not and can not enforce sexual
intercourse. Sexual relations constituted an important element in the conception of
marriage, but it was also true that these did not constitute its whole content nor could

11
Harvinder Kaur v.Harmander Sing, AIR 1984 Delhi 66

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the remaining aspects of matrimonial consortium be said to be wholly unsubstantial or

of trivial character.
29. The remedy of restitution aimed at cohabitation and consortium and not merely at
sexual intercourse. The learned judge expressed the view that the restitution decree
did not enforce sexual intercourse. It was a fallacy to hold that the restitution of
conjugal rights constituted "the starkest form of governmental invasion" of "marital
privacy".
30. Recently Supreme Court has stated that husband is not the master of his wife, the
relationship between husband and wife is based on mutual love and trust.
Supreme Court in many cases dealt with the issues relating to matrimonial
rights and right of wife to live the dignity.Reproductive choice of women to bear
or not to bear child. In Suchita Srivastava & Anr vs. Chandigarh Administration
(2009)12, a different issue came before the court for consideration. It was about the
right of a victim to retain her pregnancy and termination of pregnancy of a woman
without her consent. The court held that a woman’s pregnancy could not be
terminated without her willingness. In the cases of termination of pregnancy of a
woman her consent mattes because being a member of human family she has
right to be treated as human and she is equally entitle to all human rights.13
31. Recognition of right to privacy by apex court has opened a new area for
discussion, which is related with marital rights. Though through marriage the
spouses get some rights against each other but those rights are subject to right to
privacy of a person. At the same time the right to privacy is not absolute
right.Further the out-dated notion that a wife is no more than a subservient chattel of
her husband has long been given up. The status of married woman had been
undergone a tremendous change in India since independence. Marriage is in
modern times regarded as a partnership of equals and no longer one in which the wife
is the subservient chattel of the husband.
32. The court by recognizing the right of women to make reproductive choices stated that
she can take such decisions which affect her body and this right is available to him
due to Article 21 of Indian Constitution which guaranteed right to life and personal
liberty which includes right to privacy also. No other persons can compel her
for procreation of child because under right to privacy she has right to take
12
Suchita Srivastava & Anr vs. Chandigarh Administration (2009)
13
Ms.Pooja Jaiswal. (2010). Women Rights vis-à-vis Human Rights, Dehradun Law Review, 2(1),Page 67

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decision for procreating child. It is possible only when the statue permits. So to
make decision to have or not to have child, is discretion of woman. Because she is the
best judge of her and she has liberty to do so due to Article 21 of Indian Constitution
33. There has been a misinterpretation with the term Conjugal where it actually means to
confer the right of the spouses to the society of each other. The nature of the right is
as such as it is already inherent in the institution of marriage. Therefore when one
person voluntarily marries another, it does come along with various other
responsibilities to be taken account for. One cannot simply withdraw from these
without any justifications or reasonable causes and the allowing of these actions in
turn would also infringe the right to dignity of the other spouse irrespective of gender.

PRAYER
In the light of the issues raised, arguments advanced and authorities cited, it is most
humbly prayed before this Hon’ble Court that this Hon’ble Court may be pleased to hold,
adjudge and declare that
The petition be dismissed.
Or pass any other order that this Hon’ble Court may deem fit in the interest of justice.
For this act of kindness, the Counsel for the Respondent shall duty bound forever pray.

All of which is most humbly submitted.

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CMRU SOLS, MOOT COURT SOCIETY MUNICIPAL ROUNDS 2022-23

Counsel for Respondent

Sd/-

MEMORIAL ON BEHALF OF THE RESPONDENTS 19