1

SNBP LAW COLLEGE MORWADI

Moot Court 2023-24

SNBP LAW COLLEGE

(AFFILIATED TO SAVITRIBAI PHULE UNIVERSITY, PUNE)

Submitted by – Indranil Sanjay Barse

(LLB III – 3rd Year)
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IN THE HON’BLE HIGH COURT OF MUMBAI

IN THE MATTER OF

MADHAVAN ------------------- PETITIONER

V/S

SWATI --------------------------- DEFENDANT

WRITTEN SUBMISSION ON BEHALF OF THE PLAINTIFF

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TABLE OF CONTENTS

List of Abbreviations 1
Index of Authorities 2
Statement of Jurisdiction 3

Statement of facts 4
Statement of issues 5
Summary of Arguments 6
Arguments Advanced 7
Prayer 8
Evidence 9
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LIST OF ABBREVIATIONS

Abbreviation Meaning
& And
¶ Paragraph

AIR AllIndiaReporter
Art. Article
Cr. Criminal
Edn. Edition
Govt. Government

HMA HinduMarriageAct

Hon‟ble Honourable
i.e. Thatis
No. Number
PC PrivyCouncil
SC ScheduleCaste

SC SupremeCourt
SCC SupremeCourtCases
u/s UnderSection
v. Versus

Vol. Volume
www World WideWeb
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Table of Cases

S.No. Name of the Cases and Case Citation Page

No.
1. Neetu Singh VS the State & Ors. the High Court of 6
Delhi
2. High Court of Rajasthan in Sushila Gothalal vs. State 6
of Rajasthan
3. P. Venkataramana vs. State, the Andhra Pradesh 6
7
4. Lila Gupta vs. Lakshmi Narayan

5. Kokkula Suresh vs State of AP 7

6 Shayara Bano case 8

Treatises, Books, Reports And Digests

1. Dr.ParasDiwan,“FamilyLaw”,NinthEdition,2009,Allahabad
LawAgency
2. Dr.ParasDiwan, Lawof MarriageandDivorce,(5thED.:2008),(Universal
Law
PublishingCo)
3. M.N.Srinivasan‟s,“CommentaryonTheHinduMarriageAct,1955”,Secon
d
Edition,Delhi LawHouse
4. M.N.Das,Marriage andDivorce,(6thED.:2002)(EasternLawHouseNew
Delhi)
5. S.P.Gupte,Hindu LawinBritish India,(2ndED.:1947)(PremierPublishers
Delhi)
6. V.P.Bharatiya,SyedKhalidRashid‟sMuslimLaw,(4thED.:2004)(Eastern
BookCompanyLucknow)
7. Mayne‟s,TreatiesonHindulawandUses,Edn.17th,(BharatLawHouse)201
4
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Journals Referred
1. All India Reporter
4. Supreme Court Cases
3. Indian Law Reporter
2. Supreme Court Cases
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STATEMENTOFJURISDICTION

THE PETITIONER HAS APPROACHED THIS HON’BLE HIGH COURT OF MUMBAI, SECTION
07, 11 & 151 CPC OF FAMILYCOURTS ACT,1984

Jurisdiction. —(1) Subject to the other provisions of this Act, a Family Court shall—
(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate
civil
court under any law for the time being in force in respect of suits and proceedings of the
nature
referred to in the Explanation; and
(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district
court or, as the case may be, such subordinate civil court for the area to which the jurisdiction
of the
Family Court extends.
Explanation.—The suits and proceedings referred to in this sub-section are suits and
proceedings of
the following nature, namely:—
(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage
(declaring the marriage to be null and void or, as the case may be, annulling the marriage) or
restitution of conjugal rights or judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the
matrimonial
status of any person;
(c) a suit or proceeding between the parties to a marriage with respect to the property of the
parties or of either of them;
(d) a suit or proceeding for an order or injunction in circumstance arising out of a marital
relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of any person;
(f) a suit or proceeding for maintenance;
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(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or
access
to, any minor.
(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise—
(a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to
order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973
(2 of
1974); and
(b) such other jurisdiction as may be conferred on it by any other enactment

Proceedings to be held in camera.—In every suit or proceedings to which this Act applies, the
proceedings may be held in camera if the Family Court so desires and shall be so held if either
party so
desires.

Record of oral evidence.—In suits or proceedings before a Family Court, it shall not be
necessary to record the evidence of witnesses at length, but the Judge, as the examination of
each witness
proceeds, shall, record or cause to be recorded, a memorandum of the substance of what the
witness
deposes, and such memorandum shall be signed by the witness and the Judge and shall form
part of the
record.
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STATEMENT OF FACTS

For the sake of brevity and convenience of this Hon‟ble Court the facts of the present case are
summarized as follows:
1. Swati (age 17.5 years ) married Kumar (age 21 years) in year 2008 as per Hindu rites
and customs.
2. They begot a child (named Raju) in year 2009.
3. After childbirth Kumar started having affair with another lady (Salma).
4. When Swati objected to this illegitimate affair, she was subjected to cruelty at the hands of
Kumar.
5. after this incident Swati went to her parents house and stayed for 6 months in hope that her
husband Kumar would come to take her back home.
6. Custody was taken of Raju by Kumar (Salim).
7. After 6 months Swati and her parents went at Kumar house to settle down the matters.
8. When they reached at Kumar’s house they came to know that Kumar has changed his
religion from Hinduism to Islam and changed his name from Kumar to Salim and married
Salma according to Islamic rituals.
9. Swati and her parents went to village panchayat to get the matter resolve.
10. During the session , Kumar (Salim) claimed that he doesn’t want to stay with Swati
because she is ugly.
11. Hearing this word from Kumar (Salim), Swati got angered and hurt and she in the heat of
moment threw stones on Kumar (Salim).
12. In the heat of the session Kumar(Salim) said Talaq, Talaq, Talaq and declared that he
divorced Swati.
13. Village head also sided with Salim and declared that Kumar (Salim) has divorced Swati.
14. Disappointed with the entire ordeal Swati and her parents returned to village again.
15. She was in hope that Kumar (Salim) will come one day to take her back home but this
hope
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became depressing after 2009 when she got to know through her relatives that Kumar
(Salim) and Salma left the village and their whereabouts are not known to anyone.
16. After hearing this she started her new life by engaging herself in studies and got a job in
school in 2014 in same village where she lives.
17. A new teacher named Madhavan was also appointed as a teacher in same school. Soon
Madhavan and Swati developed a relationship and married as per Hindu Rites and Customs
on 31/12/2016 and begot a girl child named Vani from this wedlock.
18. After the birth of Vani , Madhavan came to know about Swati’s first marriage and she had
a child from that marriage
19. After knowing this fact Madhavan verbally abused Swati and threw her out and took
custody of Vani.
20. Thereafter, Madhavan filed a divorce petition under Sec 11 of Hindu Marriage Act, 1955.
21. Swati also find a counter petition stating that Madhavan who belongs to same village
already had knowledge of the marriage between her and Kumar (Salim) and prayed
dismissal of the HMOP.
22. Swati filed a petition under Domestic violence Act, 2005 and stated that she shall be
allowed to stay at her husband’s house and shall get full access to her child.
23. Court dismissed the divorce petition stating that Madhavan resident of same village cannot
deny that he was not aware of the marriage held between Kumar(Salim) and Swati.
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STATEMENT OF ISSUES

1. Whether Swati and Kumar’s Marriage is valid under Hindu Marriage Act.
2. Whether the religion conversion is valid.
3. Whether the divorce (Triple Talak) is valid.
4. Whether the panchayat resolution is valid.
5. Whether Madhavan and Swati’s Marriage is valid.
6. Whether or not the presumption of knowledge is perverse.
7. Whether can a husband claim sole custody of a child, if the marriage is void.
8. Whether a wife can claim the right of residence on her mother-in-law’s property.

SUMMARY OF ARGUMENTS

1. Whether Swati and Kumar’s Marriage is valid under Hindu Marriage Act?
Ans – Its Valid marriage
Personal laws of various religions that deal with marriage have their own standards,
often reflecting custom. For Hindus, Section 5(iii) of The Hindu Marriage Act, 1955, sets 18
years as the minimum age for the bride and 21 years as the minimum age for the groom.

Hindu Marriage Act, 1955 has laid down five necessary conditions for a valid Hindu
Marriage. This is given under section 5 of the Act.
1. Monogamy: Section 5(i) of the Act prohibits polygamy and polyandry. It says
that neither party should have a living spouse at the time of the marriage. Failure of this
condition would make the marriage null and void under section 11 of the Act. Apart from this,
the party would be liable for bigamy under sections 494 and 495 of the Indian Penal Code,
1860 and section 17 of the Hindu Marriage Act, 1955. Schedule Tribes are exempted from this
but they must have an early and lasting custom for this. In cases like Bhogadi Kannababu &
Ors vs Vuggina Pydamma & Ors [AIR 2006 SC149] and Yamunabai Anantrao Adhav A vs
Ranantrao Shivram Adhav & Anr [AIR 1988 SC 644], the apex court held that during the
subsistence of first marriage, the second marriage would be null and void.
2. Mental Capacity: This clause was inserted in the Act through The Marriage
Laws (Amendment) Act, 1976. As per the clause, three conditions must be fulfilled as per
section 5(ii) of the Act for a valid Hindu Marriage.
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The conditions are: neither party, at the time of marriage (a) is incapable of giving a
valid consent due to his/her unsound mind (b) 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 (c) has
been subjected to recurrent attacks of insanity. If any of these conditions are not fulfilled then
marriage is voidable under section 12(1)(b) of the Act.
3. Age to the parties: At the time of enactment of the Act, the legal age for the
marriage of boy and girl was 18 years and 15 years respectively. However, later on, The
Marriage Laws (Amendment) Act, 1976, changed the minimum age to 21 years and 18 years
respectively. According to the ruling in Pinninti Venkataramana and Anr vs State [AIR 1977
AP 43], breaching of the condition didn’t amount to nullity of the marriage but it is an offence
under section 18(a) of the Act i.e. simple imprisonment up to 15 days or a fine of Rs. 1000/- or
both. According to section 10 of The Prohibition of Child Marriage Act, 2006, any person
performing, conducting, directing or abetting a child marriage shall be punished with rigorous
imprisonment up to two years and fine of one lakh rupees.
4. Prohibited Degrees of Relationship: Section 5(iv) of the Act prohibits
solemnization of marriage of persons falling within prohibited degree of relationship. If any
marriage is solemnized under this then the marriage would be void under section 11 of the act.
Apart from this, violation of this clause would amount to simple imprisonment upto 1 month
or a fine of Rs. 1000/- or both under section 18(b) of the act. Section 3(g) defined persons
falling within prohibited degree of relationship. They are: (a) If one is a lineal ascendant of the
other; or(b) If one was the wife or the husband of a lineal ascendant or descendant of the
other; or(c) If one was the wife of the brother or of the father’s or mother’s brother or of the
grandfather’s or grandmother’s brother of the other, (d) If the two are brother and sister, uncle
and niece, aunt and nephew, or children of brother and sister or of two brothers or of two
sisters. It also includes (i) Relationship by half or uterine blood as well as by full blood; (ii)
Illegitimate blood relationship as well as legitimate; (iii) Relationship by adoption as well as
by blood.
5. Prohibition of Sapinda Relationship: Section 5(v) of the Act, marriage between
the persons having sapinda relationship is prohibited unless there is a custom which allows
them to do so. Any marriage solemnized under this would be void under section 11 of the Act
and violation of this clause would amount to simple imprisonment up to 1 month or a fine of
Rs. 1000/- or both under section 18(b) of the act. Section 3(f)(ii) of the Act says that Two
persons are said to be “sapindas” of each other if one is a linear ascendant (i.e. is a blood
relative in the direct line of descent – the children, grandchildren, great-grandchildren, etc. of
a person) of the other within the limits of “sapinda” relationship, or if they have a common
lineal ascendant who is within the limits of “sapinda” relationship with reference to each of
them. According to section 3(f)(i) sapinda relationship extends as far as the third generation
(inclusive) in the line of ascent through the mother, and the fifth generation (inclusive) in the
line of ascent through the father, the line being traced upwards in each case from the person
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concerned, who is to be counted as the first generation. If there is any common ancestor of 2
persons then both are sapinda to common ancestor and they would be sapinda of each other.

Child Marriage in Hindu Marriage Act, 1955

Child Marriage under the Hindu Marriage Act, 1955 is neither void nor voidable. The silence
on the part of the legislature in Section 11 & 12 and express rule in the form of provision of
Section 13 (2) (iv), renders it as valid. As a result of silence on the part of the legislature in
Section 5, 11 & 12 and express provision under Section 18 of Hindu Marriage Act, child
marriage is valid as seen in the case of Manisha Singh vs. State of NCT

In Neetu Singh VS the State & Ors. the High Court of Delhi held that the marriage of
minor is neither void nor voidable, but is punishable.

Under the Hindu Marriage Act, none of the parties have the option to repudiate the child
marriage by way of a decree of nullity. The High Court of Rajasthan in Sushila Gothalal vs.
State of Rajasthan directed that State should take necessary steps to stop the menace of child
marriage by punishing all involved in such marriages. As a result of which, the Chief Minister
of Rajasthan had made a special appeal to all its people in the State to prevent these child
marriages.

Nevertheless, a female child has been given right to repudiate the marriage under Section 13
(2) (4), by way of divorce. In Roop Narayan Verma vs. Union of India, the High Court upheld
the constitutional validity of Section 13 (2) (4) of the Hindu Marriage Act by terming it as the
exercise of power by the legislature under Article 15 (3) of the Indian Constitution.

In the wake of silence on the part of the legislature under Section 11 and 12 of the Hindu
Marriage Act, 1955 and express provisions in the same, the status of child marriage in Hindu
Marriage Act, 1955 appears to be uncertain. There is a possibility of two arguments in this
context:

That the child marriage in Hindu Marriage Act, 1955 is not valid in view of Section 5, or
That the child marriage in HMA is neither void nor voidable but renders valid.
It would be further proper to refer to some judicial pronouncements, in order to know the
judicial position:

In P. Venkataramana vs. State, the Andhra Pradesh high court noted that such marriage in
Hindu Marriage Act, 1955 is not void, by observing that had the lawmakers intended that they
would not have given to a wife the right to repudiate (reject) her marriage solemnized before
the attainment of the age of 15 years. Moreover, the high court observed that neither under
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Section 11 nor under Section 12 of the Hindu Marriage Act, 1955 there is any mention of
marriage in contravention of Section 5 (iii).

Supreme Court in Lila Gupta vs. Lakshmi Narayan, laid down that though Section 5 (iii) of
the Hindu Marriage Act prescribes a minimum age of marriage, a breach of this condition
does not render the marriage void. The court, in this case, observed that it would be
hazardous for marriage laws to treat a marriage in breach of a certain condition as void even
though the law does not expressly provide for it. This case was concerning the rights of a
widow to inherit her deceased husband’s property against the claims of her brother-in-law and
nephew who had challenged the validity of her marriage.

Andhra Pradesh High Court in Kokkula Suresh vs State of AP, held that such marriage is
neither void nor voidable but valid. Court also recognizes the husband as the guardian of the
girl child (female spouse) and he was entitled to her custody.

Q2 Whether religion conversion is valid?

Ans Yes
In India, Articles 25 to 28 of the Indian Constitution provide the basic right to freedom
of religion, so it can be said that religious conversion is legal in India. The preamble of the
Indian constitution was changed in 1976 to say that India is a secular state, marking the
creation of modern India. The Supreme Court of India concluded that India was already a
secular state when its constitution was formed. This amendment truly accomplished to state
what had previously been stated implicitly in Articles 25 to 28. Every Indian citizen has the
freedom to practice peacefully and spread their religion.
There is a provision in the Hindu Marriage Act of 1955 which states that conversion of
religion is a ground for divorce under that Act.The law provides that either party of the
marriage may seek a divorce if the husband renounces Hinduism, and the wife may seek a
divorce if the husband renounces the religion, as well as vice versa under sec. 13 clauses (1)
sub-clause (1) sub-clause (ii).

Q3 - Whether divorce Triple Talak is valid?

A - No
Triple Talaq or Talaq e biddat which has been practiced in India since 1400 centuries,
under which a Muslim man can divorce his wife merely by pronouncing Talaq word thrice
irrespective of his wife’s physical presence. This practice has been criticized by Government,
Judiciary and many NGOs working for human rights. However the ban on such derogating
practice has been resisted by All India Muslim Personal Law Board i.e., AIMPLB on the
grounds that Triple Talaq is a major constituent of Muslim Personal Laws, governed under
Shariat law, 1937 existing since the British colonial period, recognized by both the Supreme
 15

Court of India and The Constitution of India and fearing that banning such practice would lead
to the development of Uniform Civil Code, which will affect the very nature of their religion
and also their freedom to freely practice their religion. But one thing we all should realizes
that Personal Laws are derived from customs. Once custom become widely prevalent, it takes
the form of law and if such customs are evil, derogating, violating the human rights, then such
customs should be banned and should not be allowed to be a part of Personal Laws.
Triple Talaq is such a practice that is irrevocable and it gives Muslim men absolute right
to divorce their wives without their consent. This is practice unilateral by which the women
has to suffer as it deprives her of economic security, protection and social security and thus, it
makes this practice discriminatory in nature. It takes away their right to equality and right to
live a dignified life enshrined in article 14 and 21 respectively.
The Shayara Bano case was a landmark case under the family laws that dealt with the
practice of triple talaq (instant divorce) among Muslims. Shayara Bano, a Muslim woman,
challenged the constitutional validity of triple talaq, nikah halala, and polygamy, claiming that
they are violative of her fundamental rights.
The Supreme Court struck down the practice of triple talaq and declared it
unconstitutional. The court held that triple talaq violated the fundamental rights of Muslim
women guaranteed under the Indian Constitution.
The Shayara Bano case had significant impacts, including the protection of the
fundamental rights of Muslim women, empowerment of Muslim women by nullifying the
practice of instant divorce, challenging discriminatory practices within personal laws, judicial
intervention in personal laws, and pushing more legal reforms concerning personal laws in
India.
The Supreme Court upheld Muslim women's rights, including the right to equality,
dignity, and non-discrimination, as guaranteed by the Indian Constitution.
The case focused on the constitutional validity of triple talaq & affirmed that the
fundamental rights of Muslim women, including the right to equality & dignity, cannot be
violated by arbitrary divorce practices.

The judgment brought attention to the plight of Muslim women who had been badly affected
by the practice of triple talaq. The decision empowered Muslim women and reaffirmed their
rights within the framework of the Indian Constitution.
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This case sparked a broader debate on the need for gender justice and equality within religious
practices & portrayed the role of the Judiciary in interpreting personal laws & that religious
practices must conform to the fundamental rights enshrined in the Indian Constitution.
Triple Talaq was declared unconstitutional under Article 14 r/w article 13(1) of the Indian
Constitution. The Court determined that the Muslim Personal Law (Shariat) Application Act,
1937 had penalised the practice as a matter of personal law. The punishment for committing
this crime is imprisonment for up to 3 years.
After the Shayara Bano judgment, the Indian government passed the Muslim Women
(Protection of Rights on Marriage) Act, 2019, commonly referred to as the Triple Talaq Act.
This act criminalizes the practice of instant triple talaq, making it a punishable offence. It
prohibits the pronouncement of talaq by a Muslim husband upon his wife through any means,
be it spoken, written, or electronic. The act provides imprisonment and a fine for those
violating its provisions.

Therefore, the enactment of the Triple Talaq Act was a legislative response to the Supreme
Court's judgment in the Shayara Bano case, which aimed to provide additional legal protection
to Muslim women by explicitly criminalizing the practice of triple talaq and preventing its use.

Q4 - Whether Panchayat resolution is valid?

A - No
Panchayats were responsible for resolving disputes and providing a forum for village-
level decision-making.
In the 19th and early 20th centuries, British colonial rule introduced modern forms of
local self-government in India, which were based on the Panchayati Raj system.

Functions of Gram Panchayat are as follows:

• It aims to resolve minor criminal and civil disputes by having the disputants explain their sides
to the Panchayat members.
• They have the right to raise small fines but not to imprison persons. Their primary goal is to
provide low-cost, quick justice.
• If either party is dissatisfied, they can take their case to the District or High Court.
Panchayats have played an essential role in resolving disputes at the rural level since ancient
times. Panchayat justice is an idea that has been around for a long time.
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The panchayat system has played an important role in resolving disputes at the village level
from ancient times. The Panchayat model relied on cultures, norms, religious beliefs, and
habits to resolve conflicts. Individual adjudicators were known for their impartiality and
fairness.
This informal technique of resolving village disputes evolved into a formal local governance
system. Alternate Dispute Resolution (ADR) has begun to share the burden of the formal
judiciary and is facilitating ways to deal with dispute and establish harmony in our
communities.
In this case Panchayat has not listened to both the sides of party and has given
judgement in the Kumar’s favor.

Q5 - Whether Madhavan and Swati’s Marriage is Valid?

A - No
According to Section 12 (1), a declaration of nullity may be issued to declare a marriage
null and void for the following reasons:
• Unsoundness of mind (is a violation of Section (5)’s clause (ii)).
• The petitioner’s consent was coerced or gained fraudulently.
The first and foremost condition for a Hindu Marriage is that the both parties should be
Hindus. This was held in Gullipilli Sowria Raj vs Bandaru Pavani [AIR 2009 SC 1085]
Hindu Marriage Act, 1955 has laid down few necessary conditions for a valid Hindu
Marriage. This is given under section 5 of the Act.
1. Monogamy: Section 5(i) of the Act prohibits polygamy and polyandry. It says that neither
party should have a living spouse at the time of the marriage. Failure of this condition would
make the marriage null and void under section 11 of the Act. Apart from this, the party would
be liable for bigamy under sections 494 and 495 of the Indian Penal Code, 1860 and section
17 of the Hindu Marriage Act, 1955. Schedule Tribes are exempted from this but they must
have an early and lasting custom for this. In cases like Bhogadi Kannababu & Ors vs Vuggina
Pydamma & Ors [AIR 2006 SC149] and Yamunabai Anantrao Adhav A vs Ranantrao Shivram
Adhav & Anr [AIR 1988 SC 644], the apex court held that during the subsistence of first
marriage, the second marriage would be null and void.
2. Mental Capacity: This clause was inserted in the Act through The Marriage Laws
(Amendment) Act, 1976. As per the clause, three conditions must be fulfilled as per section
5(ii) of the Act for a valid Hindu Marriage.
The conditions are: neither party, at the time of marriage (a) is incapable of giving a valid
consent due to his/her unsound mind (b) 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 (c) has
 18

been subjected to recurrent attacks of insanity. If any of these conditions are not fulfilled then
marriage is voidable under section 12(1)(b) of the Act.
3. Age to the parties: At the time of enactment of the Act, the legal age for the marriage of boy
and girl was 18 years and 15 years respectively. However, later on, The Marriage Laws
(Amendment) Act, 1976, changed the minimum age to 21 years and 18 years respectively.
According to the ruling in Pinninti Venkataramana and Anr vs State [AIR 1977 AP 43],
breaching of the condition didn’t amount to nullity of the marriage but it is an offence under
section 18(a) of the Act i.e. simple imprisonment up to 15 days or a fine of Rs. 1000/- or both.
According to section 10 of The Prohibition of Child Marriage Act, 2006, any person
performing, conducting, directing or abetting a child marriage shall be punished with rigorous
imprisonment up to two years and fine of one lakh rupees.
4. Prohibited Degrees of Relationship: Section 5(iv) of the Act prohibits solemnization of
marriage of persons falling within prohibited degree of relationship. If any marriage is
solemnized under this then the marriage would be void under section 11 of the act. Apart from
this, violation of this clause would amount to simple imprisonment upto 1 month or a fine of
Rs. 1000/- or both under section 18(b) of the act. Section 3(g) defined persons falling within
prohibited degree of relationship. They are: (a) If one is a lineal ascendant of the other; or(b) If
one was the wife or the husband of a lineal ascendant or descendant of the other; or(c) If one
was the wife of the brother or of the father’s or mother’s brother or of the grandfather’s or
grandmother’s brother of the other, (d) If the two are brother and sister, uncle and niece, aunt
and nephew, or children of brother and sister or of two brothers or of two sisters. It also
includes (i) Relationship by half or uterine blood as well as by full blood; (ii) Illegitimate
blood relationship as well as legitimate; (iii) Relationship by adoption as well as by blood.
5. Prohibition of Sapinda Relationship: Section 5(v) of the Act, marriage between the persons
having sapinda relationship is prohibited unless there is a custom which allows them to do so.
Any marriage solemnized under this would be void under section 11 of the Act and violation
of this clause would amount to simple imprisonment up to 1 month or a fine of Rs. 1000/- or
both under section 18(b) of the act. Section 3(f)(ii) of the Act says that Two persons are said to
be “sapindas” of each other if one is a linear ascendant (i.e. is a blood relative in the direct line
of descent – the children, grandchildren, great-grandchildren, etc. of a person) of the other
within the limits of “sapinda” relationship, or if they have a common lineal ascendant who is
within the limits of “sapinda” relationship with reference to each of them. According to
section 3(f)(i) sapinda relationship extends as far as the third generation (inclusive) in the line
of ascent through the mother, and the fifth generation (inclusive) in the line of ascent through
the father, the line being traced upwards in each case from the person concerned, who is to be
counted as the first generation. If there is any common ancestor of 2 persons then both are
sapinda to common ancestor and they would be sapinda of each other.
 19

Swati has not taken divorce and is not legally separated from Kumar so marriage with
Madhavan is not considered as valid marriage.
Under the Hindu Marriage Act, 1955, a marriage can be dissolved on the presumption
of death of one of the parties to the marriage. This is known as divorce on the presumption of
death.
The presumption of death occurs when a person has been missing for a continuous period
of seven years or more, and their whereabouts are unknown. In such a case, the court may
presume that the person is dead and grant a divorce to the other spouse.
To file for divorce on the presumption of death, the aggrieved spouse must first prove that
the other spouse has been missing for at least seven years. This can be done by producing
evidence such as police reports, newspaper advertisements, and other relevant documents. The
court will then issue a notice to the missing spouse, giving them a chance to appear and
contest the divorce petition.
If the missing spouse fails to respond to the notice, the court may proceed with the case and
grant a divorce on the presumption of death. However, if the missing spouse does appear and
contests the case, the court will have to consider their objections and decide whether or not to
grant the divorce.
It is important to note that divorce on the presumption of death is a last resort and should
only be used when all other means of locating the missing spouse have failed. If the missing
spouse is found alive after the divorce has been granted, they have the right to challenge the
divorce decree and have it set aside.

In addition, if the missing spouse is later found to be alive, the aggrieved spouse may be
liable for damages for any property or assets that were awarded to them as part of the divorce
settlement. Therefore, it is essential to exercise due diligence in trying to locate the missing
spouse before resorting to divorce on the presumption of death.

To establish the presumption of death for the purpose of obtaining a divorce under the
Hindu Marriage Act, the following steps may be taken:
1. Filing of a petition: The aggrieved spouse must file a petition before the relevant court seeking
dissolution of marriage on the ground of the other spouse’s presumed death.
2. Evidence of missing person: The petitioner must present evidence to show that the missing
spouse has been missing for at least 7 years and that their whereabouts are unknown. This can
include newspaper advertisements, police reports, and any other relevant documents.
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3. Investigation by the court: Once the petition is filed, the court will investigate the matter by
issuing notices to the concerned authorities, such as the police and municipal authorities, to
verify the information provided by the petitioner.
4. Notice to the missing spouse: After the investigation, if the court is satisfied that the missing
spouse cannot be traced, it will issue a notice to the missing spouse, calling upon them to
appear before the court within a specified time period.
5. Publication of notice: If the missing spouse does not appear before the court, the court may
order the publication of a notice in a newspaper, inviting information about the missing
person.
6. Presumption of death: If the missing spouse fails to appear before the court or if there is no
response to the newspaper notice, the court may presume the missing spouse to be dead and
grant a divorce to the petitioner.
It is important to note that the court will only grant a divorce on the presumption of death
after it is satisfied that all efforts to locate the missing spouse have been exhausted. Moreover,
if the missing spouse is found to be alive at any point in time after the divorce is granted, they
have the right to challenge the divorce decree and have it set aside. Therefore, it is crucial to
exercise due diligence in trying to locate the missing spouse before resorting to divorce on the
presumption of death.
In conclusion, divorce on the presumption of death is a legal remedy available to the
spouse of a missing person under the Hindu Marriage Act. However, it should only be used as
a last resort and with caution, as it can have serious consequences if the missing spouse is later
found to be alive.
Section15. Divorced persons when may marry again. —
When a marriage has been dissolved by a decree of divorce and either there is no right of
appeal against the decree or, if there is such a right of appeal, the time for appealing has
expired without an appeal having been presented, or an appeal has been presented but has
been dismissed, it shall be lawful for either party to the marriage to marry again.

Q6 - Whether or not the presumption of knowledge is perverse?

A - May presume is a condition when the court enjoys its discretion power to presume any/
certain/ few facts and recognize it either proved or may ask for corroborative evidence to
confirm or reconfirm the presumption set by the court in its discretion. Section 4 of the Indian
Evidence Act provides that a fact or a group of facts may be regarded as proved, until and
unless they are disapproved. The concept is defined under Section 4 of this act that ‘May
Presume’ deals with rebuttable presumption and is not a branch of jurisprudence.
Whereas, shall presume denotes a strong assertion or intention to determine any fact.Section
4 of Indian evidence Act explains the principle of ‘Shall Presume’ that the court does not have
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any discretionary power in the course of presumption of ‘Shall Presume’, rather the court has
presumed facts or groups of facts and regard them as if they are proved until they are
disproved by the other party. Section 4 of the Indian Evidence Act explains that the concept of
‘Shall Presume’ may also be called ‘Presumption of Law’ or ‘Artificial Presumption’ or
‘Obligatory Presumption’ or ‘Rebuttable Presumption of Law’
Conclusive Presumptions/ Proofs, this can be considered as one of the strongest
presumptions a court may assume but at the same time the presumptions are not completely
based on logic rather court believes that such presumptions are for the welfare or upbringing
of the society. With regards to Conclusive proofs, the law has absolute power and shall not
allow any proofs contrary to the presumption which means if the facts presumed under
conclusive proofs cannot be challenged even if the presumption is challenged on the basis of
probative evidence. This is the strongest kind of all the existing presumptions whereas Section
41, 112 and 113 of the Evidence Act and S. 82 of the Indian Penal Code are one of the most
important provisions related to the irrebuttable form of presumptions or Conclusive
Presumption.
Section 41 of Indian Evidence Act 1872
. Relevancy of certain judgments in probate, etc., jurisdiction.––A final judgment, order or
decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency
jurisdiction,
which confers upon or takes away from any person any legal character, or which declares any
person to
be entitled to any such character, or to be entitled to any specific thing, not as against any
specified person
but absolutely, is relevant when the existence of any such legal character, or the title of any
such person to
any such thing, is relevant.
Such judgment, order or decree is conclusive proof ––
that any legal character which it confers accrued at the time when such judgment, order or
decree
came into operation;
that any legal character, to which it declares any such person to be entitled, accrued to that
person at
the time when such judgment 1
[order or decree] declares it to have accrued to that person;
that any legal character which it takes away from any such person ceased at the time from
which such
judgment, 1
[order or decree] declared that it had ceased or should cease;
and that anything to which it declares any person to be so entitled was the property of that
person at
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the time from which such judgment, 1

[order or decree] declares that it had been or should be his property

Q7 - Whether can a husband claim sole custody of a child if the marriage is void?
As per sub-section 6(c) of the Hindu Minority and Guardianship Act, in the case of a
married minor girl, the husband shall be the natural guardian.
Financial incapacity of the mother which shall in future affect the upbringing of the child
and Madhavan’s financial capability to take good care of the child.
Background of the mother has been in dark and that if the child will stay with the mother it
will prove to be fatal to the upbringing of the child or shall affect his mental and physical
growth.

Q8 – Whether a wife can claim the right of residence on her mother-in-law’s property?
A - In Rameshchandra Daga v. Rameshwari Daga, the court stated that while it is agreed
that the second marriage is void under the Hindu Marriage Act of 1955, and such marriages
are illegal under the Act’s provisions, they are not ‘immoral,’ and thus a financially dependent
woman cannot be denied maintenance on this basis.
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PRAYER
Wherefore in the light of facts presented, issues raised, arguments advanced and
authorities cited, the Counsels on behalf of the Plaintiff humbly pray before this
Hon’ble Court that it may be pleased to adjudge and declare that:

1. The petition is Considered.

2. The marriage isn’t valid.

Or pass any other order that the court may deem fit in the light of equity, justice and good
conscience and for this Act of kindness of Your Lordships the Defendant shall as duty bound
ever pray.

Sd/- Indranil Sanjay Barse

Counsels for the Plaintiff