TEAM CODE:

I N

T H E

F A M I L Y

H O N B L E

C O U R T ,

G U N T U R

PROCEEDINGS UNDER THE HINDU MARRIAGE ACT, 1955

IN THE MATTER OF

MOHAN

_____________Plaintiff

FATIMA

____________Defendant

WRITTEN SUBMISSIONS ON BEHALF OF THE PLAINTIFF

Most Respectfully Submitted to the
Honble Family Court of Guntur

32NDALL INDIA INTER-UNIVERSITY NATIONAL MOOT COURT COMPETITION, 2016

PRESIDENCY UNIVERSITY, BANGALORE

32ND ALL INDIA INTER-UNIVERSITY MOOT COURT COMPETITION 2016

TABLE OF CONTENTS

TABLE OF CONTENTS

INDEX OF ABBREVIATIONS

II

INDEX OF AUTHORITIES

III

STATEMENT OF JURISDICTION

VI

STATEMENT OF FACTS

VII

QUESTIONS PRESENTED

VIII

SUMMARY OF ARGUMENTS
PLEADINGS AND AUTHORITIES
I. WHETHER MOHANS CONVERSION TO HINDUISM IS VALID?

IX
1
1

[A]UDHR PRINCIPLE
[B]FREEDOM TO PROFESS AND PRACTICE RELIGION OF ONES CHOICE
II. WHETHER FATIMAS CONVERSION TO HINDUISM IS VALID?

III. WHETHER THE HINDU FORM OF MARRIAGE IS VALID?

[A]HMA, 1955
IV. WHETHER MUSLIM FORM OF MARRIAGE IS VALID?

V.

WHETHER RESTITUTION OF CONJUGAL RIGHTS SHALL BE GRANTED TO MOHAN?

[A]WITHDRAWAL OF RESPONDENT WITHOUT ANY REASONABLE EXCUSE

[B]THE COURT IS SATISFIED ABOUT THE TRUTH OF THE STATEMENT MADE IN THE PETITION
[C]NO LEGAL GROUND EXISTS FOR REFUSING THE DECREE
PRAYER

MEMORANDUM for THE PLAINTIFF

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INDEX OF ABBREVIATIONS

INDEX OF ABBREVIATIONS

Air

All India Reporter

All

Allahabad

All ER

All England Law Reports

All LR

Allahabad Law Reports

Arts

Article

Bom LR

Bombay Law Report

Cal

Calcutta

Ch LR

Chandigarh Law Reporter

Civ LJ

Civil Law Report

DB

District Bench

Del

Delhi

DMC

Divorce & Matrimonial Cases

Guj

Gujarat

HC

High Court

HLR

Himachal Law Reporter

HMA

Hindu Marriage Act

Jhar

Jharkhand

Mad

Madras

Ori

Orissa

P.L.J

Patna Law Journal

Pat

Patna

Raj.

Rajasthan

SC

Supreme Court

Sec

Section

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INDEX OF AUTHORITIES

INDEX OF AUTHORITIES

CASES REFERRED:1. Anna Saheb v Tarabai, AIR 1970 MP 36.

2. Asfaq Qureshi v Aysha Qureshi, AIR 2010 Chh 58.
3. Atmaram v Narbada, 1980 Raj 35.
4. Bai Jamuna v Dayalji, (1920) 22 Bom LR 241.
5. Binita bag v Tapas Bag, AIR 2009 Cal 267.
6. Bitto v Ram Deo, AIR 1983 All 371.
7. De Laubenque v De Laubenque, (1899) P 42.
8. Fassbender v Fassbender, (1938) 3 All ER 389.
9. Gullipilli Raj v Bandaru Pavani, AIR 2009 SC 1085.
10. Harendra Nath v Suprova, AIR 1989 Cal 120.
11. Harvinder Kaur v Harminder Singh Choudhary, AIR 1984 Del 66.
12. Hasina Bano v Alam Noor AIR 2007 Raj. 49.
13. Inder Yash v Manjeet kaur, (1980) HLR 251.
14. Ishan v Panna Lal (1928) 7 Pat. 6.
15. Jiva Magan v Bai Jethi, AIR 1941 Bom 535.
16. Kailash Wati v Ajodhia Parkash, 1971 CLJ 109 (P & H).
17. Khurshid Bibi v Mohd Amin P.L.D. 1967, S.C. 97.
18. Kiran Devi v Batul Kumar Verma, AIR 2011 Pat 26.
19. Manju Mehra v Kamal Mehra, AIR 2010 Bom 35.
20. Margaret Palai v Savitri Palai, AIR 2010 Ori 45.
21. Most Ranjani v Merry Murmu, AIR 2010 (NOC) 903 (Jhar).
22. Naba Katari v Kalyani Katari, 2009 Indlaw CAL 414
23. Neera v Krishna Swarup, AIR 1975 All 337.
24. Nilesh Narain v Kashmira Banker, AIR 2010 Guj 3.
25. Phoola Devi v State, 2005 VIII AD Delhi 256.
26. Rabindra Prasad v Sita Devi, AIR 1986 Pat 128.
27. Ratilal Panchand v State of Bombay, AIR 1954 SC 388.
28. Ravi Kumar v State, 2005 (1) DLT 124.
29. Sangam Singh v Inder Singh, (1984) 10 All LR 83.
30. Sanjeev Nayan Kumar v Priti Kumari, AIR 2011 Jhar 1.

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INDEX OF AUTHORITIES

31. Sapna v Neetu BalChand, AIR (NOC 2960) (Utr).

32. Saroj Rani v Sudarshan, AIR 1984 SC 1562
33. Sarvesh Mohan Saxena v Sanju Saxena 2009 (2) DMC 665.
34. Satya Sundar v MamataTripathi, 2007 II OLR 668
35. Satya v Ajaib, AIR 1973 Raj 20
36. Seema Halwai v Omprakash Halwai, AIR 2007 (NOC) 2518(MP).
37. Shyamlal v Saraswati, AIR 1967 MP 204
38. Sukram v Mishri Bai, AIR 1979 MP 144.
39. Sushil Kumar v Prem Kumar, AIR 1976 Del 321.
40. Venugopal v Lakshmi, 1936 Mad 288.
41. Venugopal v Wikies, AIR 1936 Mad 288.
42. Weatherly v Weatherly, [1947] 1 All ER 563

BOOKS REFERRED:1. Halsburys Laws of India, Volume 19, Family Law-I (2nd Ed., 2014), LexisNexis
2. Kusum, cases and material on Family Law-I (3rd Ed., 2013), LexisNexis.
3. Mulla, Hindu Law (21st Ed., 2010), LexisNexis.
4. Myneni, Muslim Law (Family Law II) (1st Ed., 2010), Asia Law House.
5. Mayne, Hindu Law and Usage (16th Ed., 2010), Bharat Law House, New Delhi.
6. Mahmood Tahir, Principles of Hindu Law (2014), Universal Law Publishing.
7. Rashid, sayed Khalid, Muslim Law (5th Ed., 2009), Eastern Book Company.
8. Mulla, Principles of Mohammedan Law (20th edition 2015), LexisNexis
9. Diwan, Paras Family Law (9th Ed., 2010), Allahabad Law Agency.

STATUES REFERRED:1. The Constitution of India, 1950.

2. Dissolution of Muslim Marriage Act, 1939
3. Hindu Marriage Act, 1955.
4. Family Courts Act 1984.

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INDEX OF AUTHORITIES

CONVENTIONS REFERRED:1. Universal Declaration of Human Rights, 1948.

2. International Covenant on Civil and Political Rights, 1966.

DATABASES REFERRED:1. http://www.scconline.com (last visited on 28th February, 2016).

2. http://www.westlaw.org (last visited on 29th February, 2016).
3. http://www.maupatra.com (last visited on 22nd February, 2016).
4. http://www.lexisnexis.com (last visited on 19th February, 2016).
5. http://www.judis.nic.in (last visited on 18th February, 2016).

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STATEMENT OF JURISDICTION

STATEMENT OF JURISDICTION

THE COUNSELS REPRESENTING THE PLAINTIFF HAVE ENDORSED THEIR PLEADINGS BEFORE
THE HONBLE FAMILY COURT, GUNTUR UNDER SECTION 7 OF THE FAMILY COURTS ACT,
1984 IN WHICH THE HONBLE COURT HAS THE JURISDICTION

SECTION 7 OF THE FAMILY COURTS ACT

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 PURPOSE 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 SUBSECTION ARE SUITS
AND PROCEEDINGS OF THE FOLLOWING NATURE, NAMELY:
(A) A SUIT OR PROCEEDING BETWEEN THE PARTIES TO A MARRIAGE FOR DECREE OF A
NULLITY 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;

THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTION AND ARGUMENTS

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STATEMENT OF FACTS

STATEMENT OF FACTS

For the sake of brevity and convenience of the Honble court the facts of the present case are
summarized as follows:
1. Mohan is born as the fourth child in a family which consists of his father Raju alias
Rahmatullah Khan, his mother Renuka alias Ria Khan and three elder sisters Shanti,
Srikala and Sinhdu. His parents were Hindus by birth. They belong to Madiga cast, a
lower caste. Due to discrimination, after marriage his father decided to convert to Islam as
he did not want his children to suffer any discrimination in the society
2. Mohan spent most of the time with his maternal grandparent. He enjoyed going to both
prayer in the Mosque with his father and going to temple with his grandparents.
3. He wanted to become a doctor and applied for a seat in Guntur medical college. In the
state of Andhra Pradesh, for admission to medical college, converts to other religions from
Hinduism are treated as backward class. So he applied and he described himself as a
member of a backward class. But he did not get admission.
4. Then on the advice of his grandfather he got himself converted to Hinduism by Suddhi
ceremony. He got admission, on the basis member of a Scheduled Caste.
5. When he was in his 5th year he met with Fatima (17 year old), 1st year student. They were
childhood friends. They fell in love. In a causal talk Mohan disclosed to her about his
conversion to Hinduism. Fatima feared that her father may not accept the marriage. She
told Mohan that her father is looking for her alliance, he insisted to get married soon. she
agreed under emotional threat and pressure
6. He made Fatima to undergo Suddhi ceremony and changed her name as Meera, then
married her, in a temple in Guntur, according to Hindu ceremonies and rituals. After that
they also married under Muslim form and a Qazi so that her father accepts their marriage.
7. Fatima confessed everything to her father. Her father convinced her that she should come
out of relationship with Mohan. he is not trustworthy person and suitable for her as He has
changed his religion just to get admission in college and He made her to convert for
marriage. Fatima got migration and she stopped all her contacts with Mohan.
8. Mohan filed for restitution of conjugal rights under the Section 9 of Hindu Marriage Act,
1955 in the Family Court of Guntur, Andhra Pradesh.

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QUESTIONS PRESENTED

QUESTIONS PRESENTED

The following questions are presented before this Honble Court for adjudication in the
instant matter:
I.

WHETHER MOHANS CONVERSION TO HINDUISM IS VALID?

II.

WHETHER FATIMAS CONVERSION TO HINDUISM IS VALID?

III.

WHETHER THE HINDU FORM OF MARRIAGE IS VALID?

IV.

WHETHER THE MUSLIM FORM OF MARRIAGE IS VALID?

V.

WHETHER RESTITUTION OF CONJUGAL RIGHT SHALL BE GRANTED TO MOHAN?

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SUMMARY OF ARGUMENTS

SUMMARY OF ARGUMENTS

I. MOHANS CONVERSION TO HINDUISM IS VALID

It is humbly submitted firstly, Art.18of the Universal Declaration of Human Rights
specifically lays down that the freedom of conscience and religion includes freedom to
change the religion or belief. Secondly, the freedom of conscience and right to profess,
practice and propagate religion is enshrined in Art 25 of the Constitution of India.
II. FATIMAS CONVERSION TO HINDUISM IS VALID
It is humbly submitted the conversion of Fatima to Hinduism is valid because she also
exercised her fundamental right to profess any religion of her own choice. She also
performed the ceremony of Suddhi ceremony and performed all Hindu marriage ceremonies.

III. THE HINDU FORM OF MARRIAGE IS VALID

It is humbly submitted they were both Hindu at the time of marriage. They both performed
essential ceremonies required for the solemnization of marriage i.e. the ceremonies
performed at the temple in Guntur in accordance with the HMA, 1955. So their marriage is
valid under HMA.

IV. THE MUSLIM FORM OF MARRIAGE IS INVALID

It is humbly submitted that the marriage under Mahomedan law is not valid as both Mohan
and Fatima converted into Hinduism. So the marriage under Mahomedan law is not valid.

V. THE RESTITUTION OF CONJUGAL RIGHTS SHALL BE GRANTED TO MOHAN

Marriage imposes an obligation on both spouses to cohabit with each other. Section 9 of
HMA, 1955 provides for the restitution of the conjugal rights. In present case Fatima
withdrew from the society of Mohan, hence he will be granted restitution of conjugal rights.

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PLEADINGS AND AUTHORITIES

PLEADINGS AND AUTHORITIES

I. MOHANS CONVERSION TO HINDUISM IS VALID

1. It is humbly submitted before the Honble court that the conversion of Mohan to Hinduism
is perfectly valid because it is a basic fundamental right of a person to profess any religion
which can be enunciated from the following:
[A]UDHR PRINCIPLE
2. The freedom of conscience and the right to profess a religion implies freedom to change
the religion as well. It is pertinent to mention that Art.181 of the Universal Declaration of
Human Rights specifically lays down that the freedom of conscience and religion includes
freedom to change the religion or belief. The essence of the freedom of conscience is that
it is a personal matter of the individuals own choice, that freedom would be impaired if in
the formation of that choice or change thereof, the free exercise of the individuals will is
dominated or influenced by other person.2 This mental aspect of the freedom of
conscience must be remembered in any discussion on Art. 25(1).3
[B]FREEDOM TO PROFESS AND PRACTICE RELIGION OF ONES CHOICE
3. It is humbly submitted that the freedom of conscience and right to profess, practice and
propagate religion is enshrined in Art. 25 of the Constitution of India. The equality of all
religions is expressly recognized by Art. 25 thereby emphasizing the cherished ideal of
secularism.
4. The Constitution does not put any kind of embargo on the right of any person to freely
choose any religion he or she likes or the religion which one is to adopt and practice in his
or her life. It is well-settled that freedom of conscience and right to profess a religion
implies freedom to change his or her religion as well.
5. The Apex Court in Lakshmindra4 has observed that Religion is certainly a matter of faith
with individuals or communities and it is not necessarily theistic. The religion is the right
of a person believing in particular faith to practice it, preach it and profess it.5
1

Art 18, Universal Declaration of Human Rights: Everyone has the right to freedom of thought, conscience and
religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community
with others and in public or private, to manifest his religion or belief in teaching, practice, worship and
observance.
2
Art 18(2), International Covenant on Civil and Political Rights: No one shall be subject to coercion which
would impair his freedom to have or to adopt a religion or belief of his choice.
3
Durgah Committee v Hussain, AIR 1961 SC 1402.
4
Commr. HRE, Madras v Sri Lakshmindra, AIR 1954 SC 282.
5
P.M.A. Metropolitan v Mran Mar Marthoma, AIR 1995 SC 2001.

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6. The right to freedom of conscience thus implies the individual right of a person to
renounce ones religion and embrace another voluntarily. Thus the legal position which
crystallizes from the above discussion is that it is the right of every individual to choose or
embrace any religion and every person has the complete liberty to forsake his previous
religion and to convert himself to another religion.
7. Every person has a fundamental right under our Constitution not merely to entertain such
religious belief as may be approved of by his judgment or conscience but to exhibit his
belief and ideas in such overt acts as are enjoined or sanctioned by his religion.6 Therefore,
Mohan also professed his fundamental right to practice, profess and propagate religion
of his own choice by converting to Hinduism.
8. He also had faith in Hindu religion as he enjoyed going to temple with his grandparents
and was also well aware with the rituals and practices of the same. Also, he performed the
suddhi ceremony which clearly illustrates that he had a bonafide intention to convert.
II. FATIMAS CONVERSION TO HINDUISM IS VALID
9. It is humbly submitted before the Honble court that the conversion of Fatima to
Hinduism is perfectly valid because she also exercised her fundamental right to profess
any religion of her own choice. Religion is a very sensitive and personal aspect of
individuals life and the Constitution of India guarantees the freedom of conscience and
religion to people of all denominations. Thus, a person is free to profess any faith or
relinquish his faith of birth and convert to another religion.
10. Similarly, on the basis of UDHRs principle and the right to freedom of religion
guaranteed by the Constitution of India she can also convert to Hinduism to exercise her
fundamental rights as submitted in the above paragraphs. She also went through the
suddhi ceremony which clearly lays down her intention and faith in the Hinduism.

Ratilal Panchand v State of Bombay, AIR 1954 SC 388.

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PLEADINGS AND AUTHORITIES

III. THE HINDU FORM OF MARRIAGE IS VALID

11. It is humbly submitted before this Honble Court that the marriage solemnized between
Mohan and Fatima is valid as per the Hindu Marriage Act, 1955.
[A] HMA, 1955
12. The Concept of Hindu marriage under the Act is still a sacrament as envisaged under the
Hindu Law. A marriage may be solemnized between any two Hindus 7 and in addition to
this must satisfy the condition as laid down in Sec 58 and should be solemnized as per the
ceremonies specified in Sec 79.
13. In the instant case, both Mohan and Fatima exercised their fundamental right i.e., right to
profess religion and converted themselves to Hindu. Thus both of them are Hindu and are
allowed to marry under the HMA, 1955. Though Fatima is below 18 years of age but that
will not affect the validity of the marriage under the HMA, 1955 because such marriage
will not be called as void or voidable. The sum and substance of below mentioned
authorities10 infers that the marriage solemnized in contravention of age prescribed under
Sec 5(iii) of the HMA i.e., 21 years for male and 18 years for female are neither void nor
voidable under Sec 11 and Sec 12 of the HMA, 1955.
14. They both performed essential ceremonies required for the solemnization of marriage i.e.
the ceremonies performed at the temple in Guntur. Also, all the essentials for a valid
marriage are also fulfilled that renders the marriage as valid in accordance with the HMA,
1955.

IV. THE MUSLIM FORM OF MARRIAGE IS INVALID

15. It is humbly submitted before the Honble court that the marriage under Mahomedan law
is not valid on the account of grounds described below:
16. Marriage or nikah, according to Muslim law, is defined to be a contract11 which has for its
object the procreation and legalizing of children. The essential requirements for a valid
Muslim marriage are capacity to contract marriage, proposal and acceptance, and absence
of any impediment to the marriage.
7

Nilesh Narain v Kashmira Banker, AIR 2010 Guj 3; Margaret Palai v Savitri Palai, AIR 2010 Ori 45; Most
Ranjani v Merry Murmu, AIR 2010 (NOC) 903 (Jhar); Asfaq Qureshi v Aysha Qureshi, AIR 2010 Chh 58;
Gullipilli Raj v Bandaru Pavani, AIR 2009 SC 1085.
8
Sec 5, Hindu Marriage Act, 1955: Conditions for Hindu Marriage.
9
Sec 7, Hindu Marriage Act, 1955: Ceremonies for a Hindu marriage.
10
Ravi Kumar v State, 2005 (1) DLT 124; Phoola Devi v State, 2005 VIII AD Delhi 256; Rabindra Prasad v
Sita Devi, AIR 1986 Pat 128.
11
Khurshid Bibi v Mohd Amin, P.L.D. S.C. 1967; Hasina Bano v Alam Noor, AIR 2007 Raj 49

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PLEADINGS AND AUTHORITIES

17. Every Muslim who is of sound mind and who has attained puberty has the capacity to
marry. A marriage prohibited by reason of difference of religion is an irregular marriage
(fasid) i.e. invalid. A mahomedan male may contract a valid marriage not only with a
Mahomedan woman, but also with a Kitabia, i.e. a Jewess or a Christian, but not with an
idolatress or a fire-worshipper. A marriage with an idolatress or a fire-worshipper is an
irregular marriage i.e. an invalid one.12 A Mahomedan woman cannot contract a valid
marriage except with a Mahomedan. Therefore, as stated that Mohan and Fatima both
converted into Hinduism due to which their marriage under Mahomedan law is invalid
because it governs only those individuals who profess Islam. Also, Fatima underwent
Suddhi ceremony due to which she worshipped fire and hence she cant marry under the
Mahomedan law.

V. RESTITUTION OF CONJUGAL RIGHTS SHALL BE GRANTED TO MOHAN

18. Marriage imposes an obligation on both spouses to cohabit with each other. The necessary
implication of marriage is that parties will live together. Section 9 13 of HMA, 1955
provides for the restitution of the conjugal rights. The object of the restitution decree is to
bring about cohabitation between the estranged parties i.e. so that they can live together in
the matrimonial home in amity.14
19. Restitution of conjugal rights has been defined as matrimonial rights, the rights which
husband and wife have towards each other, society, comfort and affection.15
20. Marital rights include the enjoyment of association, sympathy, confidence, and the
comforts of dwelling together in the same habitation as well as the intimacies of domestic
relations.16 The object of the decree of restitution is to bring about cohabitation between
the estranged parties so that they may live together in the matrimonial home in amity.17
The three conditions which are to be fulfilled for restitution are as follows:[A] WITHDRAWAL OF RESPONDENT WITHOUT ANY REASONABLE EXCUSE
21. It is submitted that under section 9 of the Hindu Marriage Act, 1955 withdrawal from the
society of the petitioner under, by respondent mean cessation of cohabitation by a
voluntary act of the respondent. The word society in section 9 has the meaning as
12

Ishan v Panna Lal, (1928) 7 Pat. 6.

Sec 9, Hindu Marriage Act: Restitution of conjugal rights.
14
Saroj Rani v Sudarshan, AIR 1984 SC 1562
15
Halsburys Laws of India, Volume 19, Family Law-I (2nd Ed., 2014), LexisNexis
16
Harvinder Kaur v Harminder Singh Choudhary, AIR 1984 Del 66.
17
Kailash Wati v Ajodhia Parkash, 1971 CLJ 109 (P & H).
13

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PLEADINGS AND AUTHORITIES

cohabitation. Cohabitation means living together as husband and wife i.e., the spouses are
fulfilling their matrimonial duties.18 The words withdrawal from the society of the other
means withdrawing by one spouse not from the company of the other but from the
conjugal relationship.
22. The Indian courts have held that any act of commission or omission amounting to
reasonable cause must be something grave and weighty or grave and convincing. 19 Where
the wife withdraws from the society of the husband without any reasonable excuse and the
material on record showed that she had no good reason to stay away from her husband, the
husband would be entitled to degree of restitution of conjugal rights.20
23. The burden of proving reasonable excuse for withdrawal from the society will be on the
person who has withdrawn from the society.21 In the present case it can be observed that
Fatima out of her own will converted to Hinduism and married with Mohan. But later she
left Mohan because of the influence exerted by her father who didnt want her daughter to
marry a non-Muslim person. Therefore, there is no reasonable excuse by Fatima to
withdraw from the society.
[B]THE

COURT IS SATISFIED ABOUT THE TRUTH OF THE STATEMENT MADE IN SUCH A

PETITION

24. What is needed to be established in a petition for restitution of conjugal rights is a total
repudiation of cohabitation.22 Where the parties to the marriage have not cohabited at any
time after marriage a petition for restitution of conjugal rights would lie if the intention
not to cohabit is established.23
25. It is to be observed here in the present case that there is a total repudiation of cohabitation
because she has migrated to other medical college and stopped all her contacts with
Mohan because she considers him not to be a suitable person for her.
[C]NO LEGAL GROUND EXISTS FOR REFUSING THE DECREE
26. Where there is no legal ground, a petition for restitution may not be dismissed simply on
the ground that the wife does not like to live with the husband or that he is not a proper

18

De Laubenque v De Laubenque, (1899) P 42; Fassbenderv Fassbender, (1938) 3 All ER 389; Venugopal v
Lakshmi, 1936 Mad 288.
19
Shyamlal v Saraswati, AIR 1967 MP 204; Satya v Ajaib, AIR 1973 Raj 20.
20
Manju Mehra v Kamal Mehra, AIR 2010 Bom 35; Naba Katari v Kalyani Katari, 2009 Indlaw CAL 414;
Seema Halwai v Omprakash Halwai, AIR 2007 (NOC) 2518(MP).
21
Atmaram v Narbada, 1980 Raj 35.
22
Weatherly v Weatherly, [1947] 1 All ER 563.
23
Venugopal v Wikies, AIR 1936 Mad 288.

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PLEADINGS AND AUTHORITIES

life companion.24 It is significant to mention that a petitioner cannot be refused restitution,

just because the respondent does not like him or does not want to live with him or because
he is too poor or otherwise not a fir person to be proper life companion.25 Also, marriage
in violation of the age requirements is perfectly valid and therefore a restitution petition
may lie in such marriages.26
27. An application for restitution of conjugal rights can be entertained only when the marriage
between the parties is legal. Where the parties are not legally married or the marriage was
not subsisting at the time of the petition, the question of granting of decree of restitution
could not arise.27 The marriage between both of them is perfectly valid and legal due to
which the petitioner is entitled to decree of restitution and also there are no other legal
wrongs on the account of petitioner such as physical assault, illicit relationship,28 cruelty,29
adultery etc.
28. Where either party to a marriage withdraws from the society of the other without
reasonable excuse, the aggrieved party may petition for restitution of conjugal rights 30 and
the family court31 will grant the relief if there is no legal bar to such decree.32 Therefore,
the petitioner should be granted a decree of restitution as all the essentials are fulfilled for
the same.

24

Anna Saheb v Tarabai, AIR 1970 MP 36.

Kusum, Cases and Material on Family Law-I (3rd Ed., 2013).
26
HarendraNath v Suprova, AIR 1989 Cal 120; Sukram v Mishri Bai, AIR 1979 MP 144.
27
Jiva Magan v Bai Jethi, AIR 1941 Bom 535; Inder Yash v Manjeet Kaur, (1980) HLR 251.
28
Sarvesh Mohan Saxena v Sanju Saxena, 2009 (2) DMC 665.
29
Sapna v Neetu Bal Chand, AIR (NOC 2960) (Utr).
30
Neera v Krishna Swarup, AIR 1975 All 337; Sushil Kumar v Prem Kumar, AIR 1976 Del 321; Sangam Singh
v Inder Singh, (1984) 10 All LR 83; Bitto v Ram deo, AIR 1983 All 371; Bai jamuna v Dayalji, (1920) 22 Bom
LR 241.
31
Sec 7, Family Courts Act, 1984.
32
Sanjeev Nayan Kumarv Priti Kumari, AIR 2011 Jhar 1; Kiran Devi v Batul Kumar Verma, AIR 2011 Pat 26;
Binita bag v Tapas Bag, AIR 2009 Cal 267: Satya Sundar v Mamata Tripathi, 2007 II OLR 668.
25

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PRAYER

PRAYER

Wherefore, in light of the facts stated, issues raised, authorities cited and arguments
advanced, the Honble Family Court of Guntur may be pleased to adjudge & declare that:
1. Mohans conversion to Hinduism is valid.
2. Fatimas conversion to Hinduism is valid
3. The Hindu form of marriage is valid.
4. The Muslim form of marriage in invalid.
5. Restitution of conjugal rights shall be granted to Mohan.
AND
Pass any other order that it may deem fit in the interest of justice, equity & good conscience.
For this act of kindness, the Plaintiff shall duty bound forever pray.

On behalf of
MOHAN
Counsels for the Plaintiff
Sd/

MEMORANDUM for THE PLAINTIFF

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