MOOT MEMORIAL Final

ARMY INSTITUTE OF LAW CLASS MOOT, 2022
Before
THE HIGH COURT OF DELHI
WRIT JURISDICTION
In the matter of
RAM PETITIONER
V.
APARNA’S FAMILY & ORS. RESPONDENT(S)
Writ Petition No. Of 2021
ON SUBMISSION TO THE HON’BLE HIGH COURT OF DELHI UNDER

THE ARTICLE 226 OF THE CONSTITUTION OF INDIA
MEMORIAL FILED AND APPEARING ON BEHALF OF THE PETITIONER
DIPSA PRASANTH
ROLL NO: 1834
TABLE OF CONTENTS
TABLE OF CONTENTS..........................................................................................................I
LIST OF ABBREVIATIONS..................................................................................................II
INDEX OF AUTHORITIES..............................................................................................III-IV
TABLE OF CASES...........................................................................................................III-VI
STATEMENT OF JURISDICTION.....................................................................................VII
STATEMENT OF FACTS.................................................................................................VIIII
ISSUES RAISED....................................................................................................................IX
SUMMARY OF ARGUMENTS...................................................................................... X-XI
ARGUMENTS ADVANCED.............................................................................................1-11
WRITTEN SUBMISSIONS ON BEHALF OF MR. RAM...............................................1-11
THAT THE PETITIONER IS ENTITLED TO A WRIT OF HABEAS CORPUS IN THE

PRESENT WRIT PETITION 1-9
1. THAT HE RESPONDENTS HAVE UNLAWFULLY DETAINED THE PETITIONER’S LAWFULLY
WEDDED WIFE I.E., THE DETENU. 1-4
2. THAT PETITIONER’S LEGAL RIGHTS HAVE BEEN VIOLATED BY THE RESPONDENTS. 4-6
3. THAT THE WRIT OF HABEAS CORPUS CAN BE ISSUED AGAINST PRIVATE PERSONS. 6-7
4. THAT THE CAUSE OF ACTION PERTAINING TO THE WRIT PETITION AROSE WITHIN
TERRITORIAL JURISDICTION OF THE HON’BLE COURT 7-9
THAT ANY OTHER ALTERNATIVE REMEDY AVAILABLE TO THE PETITIONER
DOES NOT OPERATE AS A BAR TO ISSUING OF WRIT OF HABEAS CORPUS. 9-11
PRAYER...............................................................................................................................XII
I
MEMORIAL ON BEHALF OF THE PETITIONER
LIST OF ABBREVIATIONS
& AND
¶ PARAGRAPH
§ SECTION
AIR ALL INDIA REPORTER
ANR. ANOTHER
ART. ARTICLE
ASSN. ASSOCIATION
CO. COMPANY
GOV. GOVERNMENT
KER. KERALA
LTD. LIMITED
MAD. MADRAS
MP MADHYA PRADESH
ORS. OTHERS
PVT. PRIVATE
SC SUPREME COURT
SCC SUPREME COURT CASES
SCR SUPREME COURT REPORTS
T.N. TAMIL NADU
U.O.I UNION OF INDIA
V. VERSUS
II
INDEX OF AUTHORITIES
STATUTES AND BARE ACTS

 The Constitution of India
 The Indian Penal Code, 1860
 The Indian Evidence Act, 1872
 The Delhi H.C. Act, 1966
 The Hindu Marriage Act, 1955
 The Code of Criminal Procedure, 1973
RULES AND REGULATIONS

 The Family Courts Rules, 1988
 The Rajasthan (H.C.) Family Courts Rules, 1990
 The Family Courts (Rajasthan) Rules, 1991
BOOKS REFERRED
 HM Seervai, Constitutional Law of India, Universal, (4th Ed., 2017)
 Granville Austin, Indian Constitution: Cornerstone of a Nation, Oxford Clarendon
Press, (Vol. 30, 1966)
 Halsbury’s Law of India, Family Law II, Lexis Nexis, (Vol. 28, 2007)
 Ratanlal and Dhirajlal, Indian Penal Code, Lexis Nexis, (34th Ed. march)
 Ratanlal and Dhirajlal, Code of Criminal Procedure, Lexis Nexis, (23rd Ed. 2020)
 Dr. Avatar Singh, Principles of Law of Evidence, Central Law Publications, (2014 Ed.)
 Narendra Kumar, Constitutional law of India, Allahabad Law Agency, (2018 Ed.)
 Dinshah Fardunji Mulla, Family Law, Lexis Nexis, (23rd Ed., 2007)
 SN Misra, Indian Penal Code, Central Law Publications, (22nd Ed. 2019)
 Benny Paul, Simplified approach to Criminal Procedure Code, Sri Ram Law House,
(3rd Ed. 2021)
 Chief Justice M. Monir, Textbook on the Law of Evidence, Lexis Nexis, (12th Ed. 2021)
 Dr. Paras Diwan, Family Law, Allahabad Law Agency, (11th Ed. 2019)
 Dr. Poonam Pradhan Saxena, Family Law Lectures: Family Law II, Lexis Nexis, (4th
Ed. 2019)
 Dr. V Nageswara Rao, The Indian Evidence Act, Lexis Nexis, (3rd Ed. 2020)
III
 Kusum, Cases and Materials on Family Law, Universal Law Publishing Co., (2nd Ed.
2010)
 Mulla, Hindu Law, Lexis Nexis, (23rd Ed. 2020)
 Prof. Kusum, Family Law Lectures: Family Law I, Lexis Nexis, (5th Ed. 2019.)
LEXICONS
 Bryan A. Garner, Black’s Law Dictionary (Thomson West, 9th Ed., 2009).
 Butterworths, Halsbury's Laws of England, Vol. 11, (Lexis Nexis, Vol 11, 2009).
ONLINE SOURCES AND DYNAMIC LINKS

 Hein Online.
 JSTOR.
 Lexis Nexis (India/ International).
 MANUPATRA (www.manupatra.com).
 SAL Law Net.
 S.C.C. Online (www.S.C.C.onlline.com).
 SSRN.
 Westlaw India/ U.K.
 Judgment Information System
IV
TABLE OF CASES
CASES
A.K. Gopalan v. State of Madras, A.I.R. 1950 S.C. 27............................................................2
A.S. Bindra v. Senior Superintendent of Police, 1998 CriLJ 3845.........................................11
Attorney-General v. Times Newspaper Ltd, [1973] 3 W.L.R...................................................9
Calcutta Gas Co. (Proprietary) Ltd. v. State of West Bengal, A.I.R. 1962 S.C. 1044.............6
Captain Dushyant Somal v. Sushma Somal, A.I.R. 1981 S.C. 1026.........................................2
Charanjit Lal Chowdhury v. Union of India, A.I.R. 1951 S.C. 41...........................................6
Evans v. Evans, (1948) I K.B. 175 (7)......................................................................................5
Felker v. Turpin 518 US 1051 (1996).......................................................................................1
Halsbury's Laws of England, Vol. 11, Lexis Nexis, Para 1469................................................2
Harbanslal Sahnia v. Indian Oil Corporation Ltd, (2003) 2 S.C.C. 107.................................11
Harvinder Kaur v. Harmandar Singh Choudhry, A.I.R. 1984 Delhi 66....................................5
Kailas Natarajan v. District Police Chief, W.P. (Crl.) No. 309 of 2020...................................3
Kanu Sanyal v. Dist. Magistrate, Darjeeling & Ors., 1974 S.C.C. (4) 141..............................1
Kharak Singh v. State of U.P., A.I.R. 1963 S.C. 1295.............................................................4
Knowles v. Mirzayance 556 U.S. (2009)..................................................................................1
M/s Ipjacket Technology India Pvt. Ltd v M.D. Uttar Pradesh Rajkiya Nirman Nigam Ltd.,
Writ (C) No. 34346 of 2018...................................................................................................6
M/s Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra and Ors, (2020) 10 S.C.C.
118........................................................................................................................................11
M/s. Kusum Ingots & Alloys Ltd v. Union of India and Anr, 2004 (6) S.C.C. 254.................7
Makhan Singh v. State of Punjab, A.I.R. 1964 S.C. 381..........................................................5
Maneka Gandhi v. Union of India, (1978) 1 S.C.C. 248..........................................................1
McCleskey v. Zant 499 US 467 (1991).....................................................................................1
Mohammad Ikram Hussain v. State of U.P...............................................................................2
Mst. Chand Kaur v. Partap Singh, 15 IA 156...........................................................................8
Netra Pal v. The State (NCT of Delhi), 91 (2001) DLT 40......................................................3
Oil & Natural Gas Commission v. Utpal Kumar Basu and Ors. 1994 (4) S.C.C. 711.............8
P.N. Duda v. V.P. Shiv Shankar & Ors., 1988 A.I.R. 1208...................................................10
People’s Union for Democratic Rights v. Union of India, (1982) 3 S.C.C. 235.......................6
V
Radha Krishna Industries v. State of Himachal Pradesh, 2021 S.C.C. OnLine S.C. 334.........9
Smt. Beenu Jaiswal v. Deepak Kumar 1996 All LJ 1716.........................................................2
State of Rajasthan & Ors v. Swaika Properties & Anr, 1985 A.I.R. 1289...............................8
Sunil Bata v. Delhi Administration, 1980 A.I.R. 1579.............................................................5
Sunil Kumar alias Sudhir Kumar & Anr v. State of Uttar Pradesh, Cr. Appeal No. 7399 of
2008........................................................................................................................................3
T. Sareetha v. T. Venkata Subbaiah, A.I.R. 1983 AP 356........................................................9
Thomas v. Thomas, (1948) 2 K.B, 294 (8)...............................................................................5
Whirlpool Corporation v. Registrar of Trademarks, Mumbai, (1998) 8 S.C.C. 1...................11
VI
STATEMENT OF JURISDICTION
THE PETITIONER HAS APPROACHED THE HON’BLE HIGH COURT OF DELHI UNDER ARTICLE
226 OF THE CONSTITUTION OF INDIA.
ARTICLE 226 OF THE CONSTITUTION OF INDIA READS AS FOLLOWS:
(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout
the territories in relation to which it exercise jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories directions, orders
or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo
warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by
Part III and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government,
authority or person may also be exercised by any High Court exercising jurisdiction in
relation to the territories within which the cause of action, wholly or in part, arises for the
exercise of such power, notwithstanding that the seat of such Government or authority or the
residence of such person is not within those territories.
(3) Where any party against whom an interim order, whether by way of injunction or stay or
in any other manner, is made on, or in any proceedings relating to, a petition under clause
(1), without:
(a) Furnishing to such party copies of such petition and all documents in support of the plea
for such interim order; and
(b) Giving such party an opportunity of being heard, makes an application to the High Court.
for the vacation of such order and furnishes a copy of such application to the party in whose
favour such order has been made or the counsel of such party, the High Court shall dispose
of the application within a period of two weeks from the date on which it is received or from
the date on which the copy of such application is so furnished, whichever is later, or where
the High Court is closed on the last day of that period, before the expiry of the next day
afterwards on which the High Court is open; and if the application is not so disposed of, the
interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid
next day, stand vacated
(4) The power conferred on a High Court by this Article shall not be in derogation of the
power conferred on the Supreme Court by clause (2) of Article 32.
The Hon’ble Court is competent to exercise the writ jurisdiction in the present petition
VII
STATEMENT OF FACTS
BACKGROUND
Aparna (hereinafter referred to as the Detenu), a girl aged 18 belonged to the Rajput
community and lived in Rajasthan. She fell in love and got married secretly to Ram
(hereinafter referred to as the Petitioner) aged 21 years who belonged to the Dalit community
in Sep, 2021. The newlywed couple ran away together to Delhi as they knew that their
marriage would not be accepted by their families. The Petitioner found a job in Delhi while
Detenu was still searching for one, all while their married life continued blissfully.
Back in Rajasthan the Respondents (family members of Detenu) were furious that she had ran
away with a boy from a lower caste. When Petitioner found out about the threats made by
Detenu’s family towards his family from his father, he was worried that they might come and
take Detenu away. Therefore the Petitioner applied for and got a protection order from the
Hon’ble Delhi H.C. in December, 2021. Meanwhile, the Petitioner’s family buckled under the
pressure and told the Respondents that the couple were residing in Delhi. After chasing the
newlyweds’ home for a few days, the Respondent’s nabbed Detenu on her way to a job
interview in January, 2022.
DIVORCE PETITION BY THE DETENU

The Respondents made her leave a text message for the Petitioner saying that she had come to
her senses and decided to return home. The Petitioner tried his level best to reach out to her
through phone calls, messages and even her friends but she did not respond except apparently
stating that she is not being mistreated and is fine.
FILING OF THE WRIT PETITION BEFORE THE HON’BLE COURT

At home, the Detenu’s parents persuaded her that she had no future with the Petitioner and
therefore she filed for divorce in April, 2022. On receiving divorce petition the Petitioner has
filed a W.P. for habeas corpus before the Hon’ble Delhi H.C. contending that the Respondents
took away Detenu illegally and brainwashed her into filing for divorce. Respondents state that
Petitioner had abducted Detenu and she has filed for divorce consensually.
VIII
STATEMENT OF ISSUES
ISSUE I
WHETHER THE PETITIONER IS ENTITLED TO A WRIT OF HABEAS CORPUS IN THE PRESENT WRIT
PETITION?
ISSUE 2
WHETHER ANY OTHER ALTERNATIVE REMEDY AVAILABLE TO THE PETITIONER DOES NOT
OPERATE AS A BAR TO ISSUING OF WRIT OF HABEAS CORPUS?
IX
SUMMARY OF ARGUMENTS
CONTENTION 1: THAT THE PETITIONER IS ENTITLED TO A WRIT OF

HABEAS CORPUS IN THE PRESENT WRIT PETITION
It is submitted, that the Respondents have unlawfully detained the Petitioner’s lawfully
wedded wife Detenu. In January 2022, when Detenu was on her way to a job interview, the
Respondents lay in wait and nabbed her. Thus, she was detained, and since this was done so
without the authorization and procedure established by law it amounts to an unlawful
detention. Futher Detenu’s fundamental and legal rights and petitioner’s legal rights have
been violated by the respondents. The Respondents have Unlawfully Detained Detenu and
this manifestly amounts to a violation of Detenu’s Fundamental Right to life and personal
liberty under Art. 21 and her Fundamental Right to freedom under Art. 19. The actions of
the Respondents have also violated Detenu’s legal right to cohabit with her spouse along
with the Petitioner’s, legal right of Cohabitating with his spouse i.e., Detenu. That the writ
jurisdiction under Article 226 can be exercised against private persons. It is humbly the
Hon’ble Court exercise its writ jurisdiction against the Respondents, as there is no
Constitutional bar from exercising the said jurisdiction against them merely because they
are private persons.
It is submitted, that the cause of action pertaining to the W.P. arose within territorial
jurisdiction of the Hon’ble Delhi H.C. It is settled law that under Art. 226 (2) of the
Constitution of India, writ jurisdiction can be exercised by any H.C., if any part of the cause
of action, wholly or in part, arises within its territorial limits. The Respondents initially
detained Detenu unlawfully within the territory of Delhi.
Therefore the cause of action to exercise the writ jurisdiction of the Hon’ble Court arose
wholly in the territory of Delhi. The residence of the person against whom Writ Jurisdiction
is exercised need not be within the territories over which the court exercises
territorjurisdiction so long as the Cause of Action arose wholly or in part in that territory.
X
CONTENTION 2: THAT ANY OTHER ALTERNATIVE REMEDY AVAILABLE TO

THE PETITIONER DOES NOT OPERATE AS A BAR TO ISSUING OF WRIT OF
HABEAS CORPUS IN THE INSTANT PETITION.
It is submitted, that the availability of alternative remedies to the petitioner in the instant
matter is no bar to the exercise of writ jurisdiction by the Hon’ble Court. The rule of
alternative remedy is a rule of discretion and not jurisdiction. If the petitioner is asked to
resort to any other alternative remedies it would be inefficacious. For instance, the
application for RCR, is suitable to purely matrimonial disputes between the parties to
marriage, where a spouse has without any reasonable cause withdrawn from the Society of
the other spouse, whereas Detenu has not withdrawn from the society, but has been
unlawfully detained.
In the instant matter, the Fundamental Rights of Detenu are being grossly
violated/infringed upon and resorting to the RCR application would be imprudent. The
Respondent’s actions breaching the Protection Order constitute a Civil Contempt of the
Court and is punishable under Sec. 12 of the CoC Act, 1971. But as the punishment for Civil
Contempt involves only imprisonment and/or fine, resorting to it particular jurisdiction, will
not protect the Fundamental Rights of Detenu who has been unlawfully detained. Resorting
to the provisions of Sec. 97 and 98 of the CrPC 1973 would defeat the ends of justice. The
sacrosanct Fundamental Rights to Life and Personal Liberty under Art. 21 and the Right to
Freedom are being violated by the Unlawful detention of Detenu by the Respondents.
The provisions of Sec. 97 and 98 are inefficient, complex technical and involve a lot of
time, especially with multiple jurisdictions involved. If the Petitioner is in directed to
approach the Subordinate judiciary it would adversely affect the interests of justice, as the
matter will tied to the provisions of criminal law defeating the objective of the Writ
Jurisdiction of Art. 226 of the Constitution. Further in range of juridical pronouncements it
has been held that all those instances where the W.P. has been filed to enforce Fundamental
Rights under Part III of the Constitution, the existence of alternative remedies is no bar to
exercise of the writ jurisdiction.
XI
ARGUMENTS ADVANCED
I. THAT THE PETITIONER IS ENTITLED TO THE WRIT OF HABEAS

CORPUS IN THE PRESENT WRIT PETITION
1. Art. 226 of the Constitution of India1, allows the Hon’ble H.C.s to issue writ whenever
the fundamental and/or legal right of a person is violated. All the essential requirements
for the maintainability of a W.P. of habeas corpus stand fulfilled in the instant case.
1.1. THAT THE RESPONDENTS HAVE UNLAWFULLY DETAINED THE

PETITIONER’S LAWFULLY WEDDED WIFE I.E. THE DETENU.
2. It is submitted, that the term 'Habeas Corpus' literally means “to have a body of”.2 Thus,
by virtue of this writ, the Court directs the person so detained to be brought before it to
examine the legality of his detention. For the writ of Habeas Corpus to be issued, there
must be Unlawful Detention of the Detenu and the said unlawful detention should be
continue till the filing of the W.P. The writ is of great importance and has been recognized
across different jurisdictions.5
3. In Maneka Gandhi v. Union of India4 the importance of fairness and justness in the
'procedure established by law’ while determining ‘habeas corpus’ was laid down by the
Hon’ble Supreme Court. In Kanu Sanyal v. Dist. Magistrate, Darjeeling & Ors.3 It was
observed by the Hon’ble S.C. that the writ of Habeas Corpus is used to release a person
who has been unlawfully detained or imprisoned.
4. It is pertinent to note that the Respondents have unlawfully detained the Petitioner’s
lawfully wedded wife Detenu. According to Black's Law Dictionary, the term detention
means “the act of keeping back or withholding, either accidentally or by design, a
person or
1 INDIA Const. art. 226.

2 Habeas Corpus, Legal Information Centre Cornell Law School, (Jul 24, 2021, 10:43 AM)
https://www.law.cornell.edu/wex/habeas_corpus.
3 Kanu Sanyal v. Dist. Magistrate, Darjeeling & Ors., 1974 S.C.C. (4) 141.
4 Maneka Gandhi v. Union of India, (1978) 1 S.C.C. 248
5 Knowles v. Mirzayance 556 U.S. (2009).
6 Felker v. Turpin 518 US 1051 (1996).
7 McCleskey v. Zant 499 US 467 (1991).
1
2
thing.”8 In A.K. Gopalan v. State of Madras9, the Hon’ble S.C. interpreted that Detention
means Deprivation (total loss) of personal liberty, which inter alia includes the right to eat
or sleep when one likes or to work or not to work as and when one pleases and sever- al
such rights sought to be protected by the expression "personal liberty" in Article 21”.
Consequently unlawful detention necessarily means and includes all those cases whereby a
Person is detained illegally or without procedure established by law (and hence a clear
violation of Art. 2110 of the Constitution of India).
5. It is submitted that in Captain Dushyant Somal v. Sushma Somal 11 a child who was
entrusted to the custody of the mother by an order of the Court was forcibly taken away
by the father and thus the of Habeas Corpus was passed in the said case. In Mohammad
Ikram Hussain v. State of U.P.12 it was held "that what amounts to wrongful detention of
the wife is, of course, a question for the Court to decide in each case and different
circumstances may exist either entitling or disentitling a husband to this remedy."
6. In Smt. Beenu Jaiswal v. Deepak Kumar 13 the Court was dealing with the custody of the
minor. The mother filed an application for habeas corpus for the custody of her son. An
objection was raised that habeas corpus petition is not maintainable and the proper remedy
is to file a petition under the Guardians and Wards Act. The Court cited a passage from
Halsbury's Laws of England14 stating “A parent, guardian or other person who is
legally entitled to the custody of a minor can regain that custody, when wrongfully
deprived of it, by means of writ of habeas corpus. For the purpose of the issue of the writ
the unlawful detention of a minor from the person who is legally entitled to his custody is
regarded as equivalent to unlawful imprisonment of the minor. In applying for the writ it
is, therefore, unnecessary to allege that any restrain or force is being used towards the
minor by the person in whose custody and control he is for the time being.
8 Henry Campbell Black, Black's Law Dictionary, Definitions of the Terms and Phrases of American and
English Jurisprudence, Ancient and Modern, (Aug.1, 2020, 12:35 PM),
https://karnatakajudiciary.kar.nic.in/hcklibrary/PDF/Blacks%20Law%206th%20Edition%20 -%20SecA.pdf
9 A.K. Gopalan v. State of Madras, A.I.R. 1950 S.C. 27.
10 INDIA Const. art. 21.
11 Captain Dushyant Somal v. Sushma Somal, A.I.R. 1981 S.C. 1026.
12 Mohammad Ikram Hussain v. State of U.P., A.I.R. 1964 S.C.
1625. 13 Smt. Beenu Jaiswal v. Deepak Kumar 1996 All LJ 1716.
14 Halsbury's Laws of England, Vol. 11, Lexis Nexis, Para 1469
3
7. In Sunil Kumar alias Sudhir Kumar & Anr v. State of Uttar Pradesh 15, the Hon’ble S.C.
has acknowledged that the actions of the Father-in-law in detaining the Petitioner’s wife
amounted to Illegal Detention. In Kailas Natarajan v. District Police Chief16, the
Hon’ble S.C. held that for the maintainability of a Habeas Corpus petition, it is
mandatory that the aspect of illegal detention of the concerned person is proved.
8. It is pertinent to note that the Petitioner (aged 21) and Detenu (aged 18), of sound mind and
age married each other with their free consent in the month of Sep 2021. The parties knew
that Detenu’s family i.e., the Respondent’s won’t allow them to live their matrimonial life
peacefully and hence they shifted to Delhi with mutual consent and understanding. Back
in Rajasthan, the Respondent’s attempted to pressurize the petitioner’s family and friends
to force them to reveal the place where the Petitioner had shifted. The Petitioner and
Detenu was aware of the risk that the respondent’s posed to their marriage and life, and
thus the Petitioner applied for a Protection order from this Court, and the Hon’ble Court
after having due regard to the facts and circumstances of the case, granted the same.
However, in Januaryt 2022, when Detenu was on her way to a job interview, the
Respondents lay in wait and nabbed her. Thus, she was detained, and since this was done
so without the authorization and procedure established by law it amounts to an unlawful
detention.
I.1.1. That there has been no abduction by the Petitioner
9. It is submitted that Under Sec. 362 of the IPC 186017, abduction has been defined as
“Whoever by force compels, or by any deceitful means induces, any person to go from
any place, is said to abduct that person.”
10. Whoever by force compels, or by any deceitful means induces, any person to go from any
place, is said to abduct that person. In view of the definition, the word ‘force’ connotes
actual force and not merely show or threat of force. It would be an offence to carry a
grown-up woman by force against her own will even with the object of restoring her to
her husband.
11. The expression deceitful as used here, is wide enough to include inducing a girl to leave
her guardian’s house on a pretext. It also implies the use of misrepresentation and fraud
by act or conduct.
15 Sunil Kumar alias Sudhir Kumar & Anr v. State of Uttar Pradesh, Cr. Appeal No. 7399 of 2008.
16 Kailas Natarajan v. District Police Chief, W.P. (Crl.) No. 309 of 2020.
17 The Indian Penal Code, 1860, § 362, No. 45, Acts of Parliament, 1860 (India).
4
18 Netra Pal v. The State (NCT of Delhi), 91 (2001) DLT 40
5
12. Section 362 says that abduction can happen in two ways. One of these is force. In
abduction, a person is forced to go from one place to another, against his/her will. The use
of force, as mentioned in this section, must be actual, and not just a threat of force to
constitute abduction.
13. It is pertinent to note the in Netra Pal v. The State (NCT of Delhi)18 it was held that in
determining the fact that whether the offence of abduction took place, the fact that the
abducted person was an adult is material and relevant. Petitioner and Detenu had married
each other out of their free consent in Sep 2021. The petitioner has no in way either by
force or by deceitful means compelled Detenu to go from Rajasthan to Delhi and thus, the
Petitioner did not abduct Detenu. Therefore the Respondents can in no manner argue that
there is no unlawful detention because they had freed Detenu from Petitioner’s abduction.
14. This assertion is further negated by the fact that the Respondents have forced Detenu to
file a petition for divorce and not annulment of marriage. Therefore it is proven that in the
current case there has been no abduction from the part of the petitioner.
I.1.2. That the Filing of Divorce Petition doesn’t end Unlawful Detention
15. It is submitted that it is a settled principle of Indian legal jurisprudence and public policy,
that the Divorce petition under any law in India must be filed with a free consent, but in
the instant case Detenu was compelled into filling the divorce petition during her
unlawful detention. As per the facts of the case, the current status of divorce petition is
not known. However, Chapter II of the Rajasthan (H.C.) Family Court Rules, 199020,
which deals with the Institution of Proceedings doesn’t require the actual physical
presence of the parties in the Court premises. It is quite clear from facts of the case that the
parties have not reached the Contesting Stage (as the divorce petition hasn’t been filed
with mutual consent) and therefore, the assumption that Detenu’s unlawful detention is
over because she has simply filed a divorce petition is erroneous and perverse.
16. Therefore, Detenu’s unlawful detention, which began in January, 2022 continues till the
present day and the mere fact that she filed a divorce petition doesn't indicate that she has
done so out of her own free will. It is humbly submitted before the Hon’ble Court that the
Respondents have unlawfully detained the Petitioner’s lawfully wedded wife Detenu.
19
Kharak Singh v. State of U.P., A.I.R. 1963 S.C. 1295.
20
Rajasthan (High Court) Family Courts Rules, 1990 Published vide G.S.R. 10.
6
I.2. THAT THE PETITIONER’S LEGAL RIGHTS AND DETENU’S

FUNDAMENTAL RIGHTS HAS BEEN VIOLATED BY THE RESPONDENTS.
17. Article 21 of the Constitution states that, “No person shall be deprived of his life or personal
liberty except according to a procedure established by law”. It is put that legally, marriage is
a binding contract between the two parties that joins together their possessions, income, and
lives. In the case of Lata Singh vs. State of UP the Hon’ble Supreme Court recognized that,
“the person has a right to choose his or her partner and further in another case the Apex
Court held that an inherent aspect of Article 21 of the Constitution would be the freedom of
choice in marriage. Such offences are resultant of the States incapacity or inability to
protect the Fundamental Rights of its citizens.”
18. It is further brought in the light that in the case of Shakti Vahini v. Union of India it was
stated by the Court that, “The choice of an individual is an inextricable part of dignity, for
dignity cannot be thought of where there is erosion of choice.” Therefore the choice of
Aparna and Ram to marry each other is protected by Article 21. When Aparna’s brother
nabbed her on her way to interview, her liberty was hampered at that point of time which
violates her fundamental right.
I.2.1. That the Legal Right to cohabit with the Spouse has been violated in the present
case:
19. It is submitted that the institution of Marriage in India, pre-supposes and vests both the
parties to a marriage the Right to Cohabitation with the other spouse. In Harvinder Kaur
v. Harmandar Singh Choudhry25, the Hon’ble Delhi H.C. while deciding an RCR petition
recognized the 'Cohabitation' between the spouses as the most significant aspect of
marriage. Similarly in Evans v. Evans26 it was held that cohabitation consists in the
husband acting as a husband towards the wife and the wife acting as a wife towards the
husband, the wife rendering house-wifely duties to the husband and the husband
cherishing and supporting his wife as a husband should. In Thomas v. Thomas27 it was
held that the cohabitation of two people as husband and wife means that they are living
together as husband and wife, the wife rendering wifely services to her husband.
21
INDIA Const. art. 21.
22
INDIA Const. art. 19.
23
Makhan Singh v. State of Punjab, A.I.R. 1964 S.C. 381.
24
Sunil Bata v. Delhi Administration, 1980 A.I.R. 1579.
25
Harvinder Kaur v. Harmandar Singh Choudhry, A.I.R. 1984 Delhi 66.
26
Evans v. Evans, (1948) I K.B. 175 (7).
27
Thomas v. Thomas, (1948) 2 K.B, 294 (8).
7
28
Ibid.
8
The actions of the Respondents have also violated Detenu’s legal right to cohabit with her
spouse along with the Petitioner’s, legal right of Cohabitating with his spouse i.e., Detenu.
20. In Charanjit Lal Chowdhury v. Union of India29, the S.C. was of the opinion that a writ
for a relief under Article 226 of the Constitution, though not at the instance of an utter
stranger, is at least available through a friend or relation of the detenu, who can apply for
a writ of habeas corpus questioning the detention. In Calcutta Gas Co. (Proprietary) Ltd.
v. State of West Bengal30, the Hon’ble S.C. held that "The right that can be enforced
under Article 226 also shall ordinarily be the personal or individual right of the petitioner
himself, though in the case of some of the writs like habeas corpus or quo warranto this
rule may have to be relaxed or modified".
21. Thus, the petitioner has a bona fide locus standi in filing the present W.P. It is humbly
submitted before the Hon’ble Court that the Respondents have that Detenu’s fundamental
and legal rights and petitioner’s legal rights has been violated by the respondents.
I.3. THAT THE WRIT JURISDICTION UNDER ARTICLE 226 CAN BE

EXERCISED AGAINST PRIVATE PERSONS.
22. It is submitted that Art. 226 of the Indian Constitution reads as below:
“Notwithstanding anything in Art. 32 every H.C. shall have powers, throughout the
territories in relation to which it exercise jurisdiction, to issue to any person or
authority, including in appropriate cases, any Government, within those territories
directions, orders or writs, including writs in the nature of habeas corpus, mandamus,
prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of
the rights conferred by Part III and for any other purpose.”
23. It is pertinent to note the case of People’s Union for Democratic Rights v. Union of
India32, the Hon’ble S.C. held that Fundamental Rights under Part III of the Constitution are
enforceable not only against the State but also against Private Individuals. Further in M/s
Ipjacket Technology India Pvt. Ltd v M.D. Uttar Pradesh Rajkiya Nirman Nigam Ltd. 33 it
was held that the Writ jurisdiction is an extraordinary remedy that cannot be used for the
purpose of declaring contractual rights of the parties.
29
Charanjit Lal Chowdhury v. Union of India, A.I.R. 1951 S.C. 41.
30
Calcutta Gas Co. (Proprietary) Ltd. v. State of West Bengal, A.I.R. 1962 S.C. 1044.
31
INDIA Const. art. 226, cl. 1.
32
People’s Union for Democratic Rights v. Union of India, (1982) 3 S.C.C. 235.
33
M/s Ipjacket Technology India Pvt. Ltd v M.D. Uttar Pradesh Rajkiya Nirman Nigam Ltd., Writ (C) No.
9
34346 of 2018.
10
24. Under Art. 226 of the Constitution, a H.C. can exercise Writ Jurisdiction against both
Public authorities and private persons. Therefore a writ of habeas corpus can be issued for
release of a person who has been detained unlawfully by the State or by any Private
Individual(s).
I.3.1. That the Writ Jurisdiction is Exercisable in case of Private Persons
25. It is to be noted that in the present case Respondents have unlawfully detained Detenu in
Rajasthan, violating her legal right to cohabit with her husband and Petitioner’s right to
cohabit with his spouse. It is quite obvious that the respondents do not come within the
ambit of Public authorities or law enforcement, but rather they are private persons who
have without the procedure established by law and any legal authorization whatsoever
have detained Detenu.
I.4. THAT THE CAUSE OF ACTION PERTAINING TO THE W.P. AROSE WITHIN
TERRITORIAL JURISDICTION OF THE HON’BLE COURT.
26. It is submitted, that the cause of action pertaining to the W.P. arose within territorial
jurisdiction of the Hon’ble Delhi H.C. It is submitted that Art. 226 (2)34 of the Constitution of
India states that: The power conferred by clause (1) to issue directions, orders or writs to
any Government, authority or person may also be exercised by any H.C. exercising
jurisdiction in relation to the territories within which the cause of action, wholly or in
part, arises for the exercise of such power, notwithstanding that the seat of such
Government or authority or the residence of such person is not within those territories.
27. It is settled law that under Art. 226 of the Constitution of India, writ jurisdiction can be
exercised by any H.C., if any part of the cause of action, wholly or in part, arises within
its territorial limits.
I.4.1. Cause of Action in Delhi
28. In M/s. Kusum Ingots & Alloys Ltd v. Union of India and Anr35it was observed by the
Hon’ble S.C. that the term cause of action implies a right to sue. The material facts which are
imperative for the suitor to allege and prove constitutes the cause of action.
34
INDIA Const. art. 226, cl. 2.
35
M/s. Kusum Ingots & Alloys Ltd v. Union of India and Anr, 2004 (6) S.C.C. 254.
11
29. Cause of action is not defined in any statute. It has, however, been judicially interpreted inter
alia to mean that every fact which would be necessary for the plaintiff to prove, if traversed,
in order to support his right to the judgment of the Court. Negatively put, it would mean that
everything which, if not proved, gives the defendant an immediate right to judgment, would be
part of cause of action. Its importance is beyond any doubt. For every action, there has to be
a cause of action, if not, the plaint or the writ petition, as the case may be, shall be rejected
summarily. In State of Rajasthan & Ors v. Swaika Properties & Anr36, it was reiterated by
the Hon’ble S.C. that the cause of action would determine whether a High Court has
jurisdiction to entertain a particular writ petition. The Respondents initially detained Detenu
unlawfully within the territory of Delhi. Thus, she was first deprived of her Fundamental
Rights and Legal Rights in Delhi. Further, the Petitioner has been deprived of his Legal Right
to Cohabit with Detenu in Delhi as well. Therefore the cause of action to exercise the writ
jurisdiction of the Hon’ble Court arose wholly in the territory of Delhi.
I.4.2. Exercise of Jurisdiction when Detenu in Rajasthan
30. In Mst. Chand Kaur v. Partap Singh37 it was held the cause of action has no relation
whatever to the defence which may be set up by the defendant, nor does it depend upon
the character of the relief prayed for by the plaintiff. It refers entirely to the ground set forth
in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff
asks the court to arrive at a conclusion in his favour.
31. While Detenu has been detained in Rajasthan, outside the territory of Delhi yet the
Hon’ble Delhi H.C. has jurisdiction to exercise the W.P. and merely because Detenu is
presently being detained in Rajasthan is of no legal significance, and is therefore
completely inconsequential immaterial, since the cause of action in the instant matter
arose in the territory of Delhi (over which the Hon’ble Court exercises its
jurisdiction).There is no ground for accepting the contention regarding non-existence
of the Court’s Jurisdiction and doing so would be unconstitutional and opposed to
prudence. It is humbly submitted before the Hon’ble Court, that the cause of action
pertaining to the W.P. has arisen within territorial jurisdiction of the Hon’ble Delhi H.C.
36 State of Rajasthan & Ors v. Swaika Properties & Anr, 1985 A.I.R. 1289.
37 Mst. Chand Kaur v. Partap Singh, 15 IA 156.
38 Oil & Natural Gas Commission v. Utpal Kumar Basu and Ors. 1994 (4) S.C.C. 711.
12
II. THAT ANY OTHER ALTERNATIVE REMEDY AVAILABLE TO THE

PETITIONER DOES NOT OPERATE AS A BAR TO ISSUING OF WRIT OF
HABEAS CORPUS IN THE INSTANT PETITION.
32. It is submitted, that the availability of alternative remedies to the petitioner in the instant
matter is no bar to the exercise of writ jurisdiction by the Hon’ble Court.
II.1. THAT THE EXISTENCE OF ALTERNATIVE REMEDY IS NO BAR TO

ISSUING OF WRIT OF HABEAS CORPUS
33. It is pertinent to note the case of Radha Krishna Industries v. State of Himachal
Pradesh39, the Hon’ble S.C. while summarizing the point of law w.r.t. the maintainability of
a writ petition, held that the the rule of alternative remedy is a rule of discretion and not
jurisdiction. Under Art. 226 of the Constitution, a H.C., having regard to the facts of the
case, has a discretion to entertain or not to entertain a W.P. The existence of alternative
remedy has been consistently held by not to operate as a bar in where the W.P. has been
filed for the enforcement of any of the Fundamental Rights under Part III of the
Constitution. The Petitioner has filed this W.P. to secure a writ of Habeas Corpus by the
Hon’ble Court to ensure the enforcement of Detenu’s Fundamental Rights under Art. 21
and 19 of the Constitution of India.
II.2. THAT THE REMEDY OF RESTITUTION OF CONJUGAL RIGHTS

WOULD BE INEFFICACIOUS
34. It is submitted that the petitioner is asked to resort to any other alternative remedies it
would be inefficacious. In T. Sareetha v. T. Venkata Subbaiah40 it was observed that the
application for RCR, is suitable to purely matrimonial disputes between the parties to
marriage, where a spouse has without any reasonable cause withdrawn from the Society of
the other spouse. The Detenu has not withdrawn from the society, but has been unlawfully
detained. In the matter, the Fundamental Rights of Detenu are being grossly violated.
II.3. THAT THE REMEDY OF CONTEMPT OF COURT ACT, 1971 WOULD

NOT DIRECTLY BENEFIT THE PETITIONER
39 Radha Krishna Industries v. State of Himachal Pradesh, 2021 S.C.C. OnLine S.C. 334.
40 T. Sareetha v. T. Venkata Subbaiah, A.I.R. 1983 AP 356.
41 Attorney-General v. Times Newspaper Ltd, [1973] 3 W.L.R.
13
35. Filing an application for Contempt of Court would not directly benefit the Petitioner and
Detenu. Similarly in P.N. Duda v. V.P. Shiv Shankar & Ors. 42, the Hon’ble S.C.
observed that contempt of court jurisdiction was of a limited nature and cannot be used in
every instance. According to Sec. 2 (b) of the CoC Act, 197143 Civil Contempt means
“willful disobedience to any judgment, decree, direction, order, writ or other process of a
court or willful breach of an undertaking given to a court.” The Respondents by
unlawfully detaining Detenu have violated the Protection Order of the Hon’ble Delhi H.C.
granted in Dec 2021. These actions constitutes a Civil Contempt of the Court and is
punishable under Sec. 12 of the CoC Act, 1971.
II.4. THAT RESORTING TO SECTION 97 AND 98 OF CODE OF CRIMINAL

PROCEDURE, 1973 WILL DEFEAT THE ENDS OF JUSTICE
36. It is significant to note that resorting to the provisions of Sec. 97 and 98 of the CrPC 1973
would defeat the ends of justice. Sec. 97 of the CrPC 197345 states that “If any District
Magistrate, Sub-divisional Magistrate or Magistrate of the first class has reason to
believe that any person is confined under such circumstances that the confinement
amounts to an offence, he may issue a search-warrant, and the person to whom such
warrant is directed may search for the person so confined; and such search shall be
made in accordance therewith, and the person, if found, shall be immediately taken
before a Magistrate, who shall make such order as in the circumstances of the case seems
proper.”
37. Similarly Sec. 98 of the CrPC 197346 states that “Upon complaint made on oath of the
abduction or unlawful detention of a woman, or a female child under the age of eighteen
years for any unlawful purpose, a District Magistrate, Sub-divisional Magistrate or
Magistrate of the first class may make an order for the immediate restoration of such
woman to her liberty, or of such female child to her husband, parent, guardian or other
person having the lawful charge of such child, and may compel compliance with such
order, using such force as may be necessary.
42
P.N. Duda v. V.P. Shiv Shankar & Ors., 1988 A.I.R. 1208.
43
The Contempt of Courts Act, 1971, § 2, No. 70, Acts of Parliament, 1971 (India).
44
The Contempt of Courts Act, 1971, § 12, No. 70, Acts of Parliament, 1971 (India).
45
The Code of Criminal Procedure, 1973, § 97, No. 2, Acts of Parliament, 1973 (India).
46
The Code of Criminal Procedure, 1973, § 98, No. 2, Acts of Parliament, 1973 (India).
14
38. In the instant case, the sacrosanct Fundamental Rights to Life and Personal Liberty under
Art. 21 and the Right to Freedom are being violated by the Unlawful detention of Detenu
by the Respondents. It has been observed by the Hon’ble S.C. in M/s Neeharika
Infrastructure Pvt. Ltd. v. State of Maharashtra and Ors.47 that the CrPC 1973 in
general and the provisions relating to Search and Seizure under chapter VII containing of
Sections 91-100 under which the provisions of Sec. 97 and 98 are positioned, is
inefficient, complex, technical and cautious. It involves a lot of time, especially with
multiple jurisdictions involved. If the Petitioner is in directed to approach the Subordinate
judiciary at the level of District Magistrates, Sub- Divisional Magistrates or Magistrate of
the first class etc. it would adversely affect the interests of justice, as the matter will tied to
the provisions of criminal law defeating the objective of the Writ Jurisdiction of Art. 226
of the Constitution i.e., protection of Fundamental and Legal Rights of the Citizens. In
A.S. Bindra v. Senior Superintendent of Police 48, it was held that the writ jurisdiction of
a High Court under Article 226 can be invoked in exceptional circumstances depending
upon the facts/ exigencies of the case. In order to avoid technical and procedural
complexities the Hon’ble Court should exercise its jurisdiction and pass the writ of Habeas
Corpus in the instant matter. Further, as reiterated previously, in a range of juridical
pronouncements such as Harbanslal Sahnia v. Indian Oil Corporation Ltd49 and in
Whirlpool Corporation v. Registrar of Trademarks, Mumbai 50, it has been held that all
those instances where the W.P. has been filed to enforce Fundamental Rights under Part III
of the Constitution, the existence of alternative remedies is no bar to exercise of the writ
jurisdiction.
39. It is humbly submitted before the Hon’ble Court that in the instant case all the essentials
for the maintainability of the W.P. have been satisfied and the Hon’ble H.C. exercise its
extraordinary jurisdiction to issue a writ of Habeas Corpus to enforce and protect
Detenu’s fundamental rights who has been unlawfully detained by the Respondents.
47
M/s Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra and Ors, (2020) 10 S.C.C. 118
48
A.S. Bindra v. Senior Superintendent of Police, 1998 CriLJ 3845.
49
Harbanslal Sahnia v. Indian Oil Corporation Ltd, (2003) 2 S.C.C. 107.
15
50
Whirlpool Corporation v. Registrar of Trademarks, Mumbai, (1998) 8 S.C.C. 1.
16
PRAYER
Wherefore, in the light of the facts of the case, issues raised, arguments advanced and
authorities cited, and in the interest of justice, equity and good conscience, the counsel for
the petitioner humbly prays before the Hon’ble court that it may be pleased to:
ISSUE A WRIT OF HABEAS CORPUS FOR THE PRODUCTION OF DETENU, WHO

IS THE PETITIONER’S WIFE AND HAS BEEN SUBJECT TO UNLAWFUL
DETENTION BY THE RESPONDENTS.
OR
Pass any other order that the Hon’ble Court may deem fit in the interest of justice, equity and
good conscience and for this act of kindness, the Counsel on behalf of the Petitioner, as duty
bound shall forever pray.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
____________________________________
Sd/-
COUNSEL FOR THE PETITIONER
XVII
MEMORIAL ON BEHLAF OF THE PETITIONER

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ARMY INSTITUTE OF LAW CLASS MOOT, 2022

Writ Petition No. Of 2021

ON SUBMISSION TO THE HON’BLE HIGH COURT OF DELHI UNDER

MEMORIAL FILED AND APPEARING ON BEHALF OF THE PETITIONER

SUMMARY OF ARGUMENTS...................................................................................... X-XI

WRITTEN SUBMISSIONS ON BEHALF OF MR. RAM...............................................1-11

THAT THE PETITIONER IS ENTITLED TO A WRIT OF HABEAS CORPUS IN THE

STATUTES AND BARE ACTS

RULES AND REGULATIONS

ONLINE SOURCES AND DYNAMIC LINKS

ARTICLE 226 OF THE CONSTITUTION OF INDIA READS AS FOLLOWS:

DIVORCE PETITION BY THE DETENU

FILING OF THE WRIT PETITION BEFORE THE HON’BLE COURT

CONTENTION 1: THAT THE PETITIONER IS ENTITLED TO A WRIT OF

CONTENTION 2: THAT ANY OTHER ALTERNATIVE REMEDY AVAILABLE TO

I. THAT THE PETITIONER IS ENTITLED TO THE WRIT OF HABEAS

1.1. THAT THE RESPONDENTS HAVE UNLAWFULLY DETAINED THE

1 INDIA Const. art. 226.

I.1.1. That there has been no abduction by the Petitioner

I.2. THAT THE PETITIONER’S LEGAL RIGHTS AND DETENU’S

I.3. THAT THE WRIT JURISDICTION UNDER ARTICLE 226 CAN BE

I.3.1. That the Writ Jurisdiction is Exercisable in case of Private Persons

I.4.1. Cause of Action in Delhi

I.4.2. Exercise of Jurisdiction when Detenu in Rajasthan

II. THAT ANY OTHER ALTERNATIVE REMEDY AVAILABLE TO THE

II.1. THAT THE EXISTENCE OF ALTERNATIVE REMEDY IS NO BAR TO

II.2. THAT THE REMEDY OF RESTITUTION OF CONJUGAL RIGHTS

II.3. THAT THE REMEDY OF CONTEMPT OF COURT ACT, 1971 WOULD

41 Attorney-General v. Times Newspaper Ltd, [1973] 3 W.L.R.

II.4. THAT RESORTING TO SECTION 97 AND 98 OF CODE OF CRIMINAL

ISSUE A WRIT OF HABEAS CORPUS FOR THE PRODUCTION OF DETENU, WHO

ALL OF WHICH IS RESPECTFULLY SUBMITTED

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