Rajiv Gandhi School Of Intellectual Property Law, IIT Kharagpur 1

RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW, IIT

KHARAGPUR

BEFORE THE HONOURABLE FAMILY COURT OF

GUNTUR, ANDHRA PRADESH

APPEAL No.-____/2019

In the matter of,

Plaintiff: Mohan

Versus

Respondent: Fatima

Respondent Represented By Counsel: Utsav Sharma, Counsel Id: 19IP63048

MEMORIAL ON BEHALF OF THE RESPONDENT

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 Rajiv Gandhi School Of Intellectual Property Law, IIT Kharagpur 2

TABLE OF CONTENTS

A) LIST OF ABBREVIATIONS .......................................................................................................................... III

B) ACT/RULES/STATUTES REFERRED .............................................................................................................. IV
C) BOOKS REFERRED .................................................................................................................................. IV
D) CASES REFERRED..................................................................................................................................... V
STATEMENT OF JURISDICTION .......................................................................................................................VII

STATEMENT OF FACTS ..................................................................................................................................... 8

ISSUES RAISED ............................................................................................................................................... 10

SUMMARY OF ARGUMENTS .......................................................................................................................... 11

ARGUMENTS ADVANCED ............................................................................................................................... 11

PRAYER .......................................................................................................................................................... 13

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A) List of Abbreviations

1. AIR - All India Reporter

2. Art. - Article

3. O.J.R. - Other Journal Reporter

4. HMA. - Hindu Marriage Act, 1955

5. Hon’ble - Honorable

6. Ors. - Others

7. Mad. - Madras

8. P&H - Punjab and Haryana

9. Raj - Rajasthan

10. SC - Supreme Court of India

11. SCC - Supreme Court Cases

12. V - Versus

13. Vol. - Volume

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B) Rules/Statutes Referred

Constitution of India, 1950

List of Statutes

1. Hindu Marriage Act, 1955.

2. Family Courts Act, 1984.

3. The Constitution of India, 1950.
4. Dissolution of Muslim Marriage Act, 1939.

C) Books Referred

S.NO. AUTHOR & TITLE OF THE BOOK

1. Modern Hindu Law, Dr.Paras Diwan (Twentieth Edition,2011)

2. Cases and Materials on Family Law,Kusum(Universal Law House,2010)

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D) Cases Referred

PAGE
S.NO. CASE LIST
NO.

I. Principle, Guntur Medical College v. Mohan Rao 11

II. Devararajan and others 11

III. Slevi M. Shyamala v. Tamil Nadu State Scrutiny Committee 11

IV. Durgaprasada Rao v. Sudarasanaswam 11

V. Stainislaus v. State Of Madhya Pradesh 12

VI. Sujatha v. Jose Augustine 12

VII. Perumal v. Ponnuswami 12

VIII. Savita Ben Somabhai Bhatiya v. State of Gujarat 13

IX. Jiva Magan v. Bai Jethi 14

X. Jacintha Kamath v. K. Padmanabha Kamath 15

XI. Asfaq Qureshi v Aysha Qureshi 15

XII. Hasina Bano v Alam Noor 15

XIII. Jiva Magan v. Bai Jethi 16

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XIV. Neera v Krishna Swarup 16

XV. Sushil Kumar v Prem Kumar 16

XVI. Sanjeev Nayan Kumar v Priti Kumari 16

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STATEMENT OF JURISDICTION
THE COUNSEL REPRESENTING THE DEFENDANT HAVE ENDORSED THEIR

PLEADINGS BEFORE THE HON’BLE FAMILY COURT, GUNTUR UNDER SECTION

71 OF THE FAMILY COURTS ACT, 1984 IN WHICH THE HON’BLE COURT HAS THE

JURISDICTION.

1
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;

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STATEMENT OF FACTS

Factual Background:

[1] Mohan, born as fourth child in family consisting of his father Raju alias Rahmatullah Khan,
his mother Renuka alias Ria Khan and three siblings, used to live with his maternal
grandparents who was Hindu. At the instance of observing different practices in family it
was explained to him that his parents were also Hindu by birth, though belonging to a
lower caste. For the reasons of such discriminatory practices against the people belonging
to lower caste he decided to convert to Islam.

[2] Determined to bring about change in such discrimination he applied for seat in Guntur
Medical College, but the converts to other religions from Hinduism were treated as
backward classes thereby he didn’t get admission. On the advice, he got himself converted
to Hinduism by going through Suddhi ceremony, claiming to be a member of Madiga caste
he got admission as falling under Schedule Caste.

[3] In the fifth year of his study, he fell in love to a Muslim girl Fatima, though aware
about their status in the society. The girl reasoned that she can convince her father for
their marriage as they both are Muslims, but then Mohan disclosed about his
conversion to Hinduism which made her feared that the marriage would not be
accepted by her father as being a strong follower of Islam. When she went home, got
aware about the preparations of her marriage to which Mohan insisted they should get
married soon and under the emotional threat and pressure she agreed for such
marriage.

[4] He made Fatima to undergo Suddhi ceremony, solemnized the marriage in a temple,
thereafter also married under Muslim form wherein Qazi performed their marriage.
When the girl felt guilty about the marriage, she confessed it to her father who
convinced he to get out of this relationship as Mohan is not a trustworthy person. He
made her believe and migrated her to another medical college. When she stopped all
her contacts with Mohan, he filed for Restitution of Conjugal Rights under the HMA,
1995 in hon’ble court.

[5] Fatima challenged the validity of the marriage alleging that her conversion to Hinduism not
valid. Though Mohan countered that in case the Hindu marriage is not valid, the Muslim

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marriage is valid one. Fatima again contended that even that marriage was not valid as a
Muslim woman cannot marry a non-Muslim. Thus creating dichotomy when Mohan
accepted that his conversion was not valid as done for the purpose of getting admission in
Medical College, thereby validating the Muslim marriage.

HENCE, THE PRESENT CASE IS FILED B EFORE THIS

HONORABLE C OURT.

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ISSUES RAISED
I. Whether the conversion of Mohan is Valid?

II. Whether the conversion of Fatima was Invalid?

III. Whether the Marriage between Mohan and Fatima was valid?

IV. Whether the Restitution of Conjugal Rights can be granted to Mohan?

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SUMMARY OF ARGUMENTS

1. Conversion of Mohan was valid in the sense that his performed the Suddhi
ceremony for his conversion from Muslim to Hindu and he was following it from
past 4 years. A person’s parents who were initially Hindu has the choice of
returning back to his religion which his parents practiced or to other caste if the
people belonging to that caste has no issue.

2. Conversion of Fatima was totally invalid in the sense that it was a kind of forced
conversion which was done under the undue influence. The fundamental thing
to be established before one can be held to be belonging to one religion is
that the person concerned truly believes in and professes that faith.
3. The marriage between a Hindu and a Muslim is invalid under Hindu Marriage
Act, 1955 is invalid under the section 5. The marriage is also invalid under the
Shariat Act that provides that for the application of Muslim Law both parties
must be Muslim. As here Mohan is Hindu by conversion and Fatima is still a
Muslim.
4. Restitution of Conjugal Rights is only possible if their exist a valid marriage,
here the marriage between the appellant and the respondant is invalid, So there
is no point for application of section 9 of Hindu Marriage Act, 1955.

ARGUMENTS ADVANCED
ISSUE I

I. Whether the conversion of Mohan is valid?

1. The conversion of Plaintiff (Mohan) to Hindu from Islam is completely valid .

1. Here the petitioner ( in this case Mohan) contented that his conversion was invalid as
it was only for the purpose of getting admission in the medical college. Here we know
that he was born to parents who were originally Hindu and later looking at the caste
system that prevails in this country they gave up their religion and converted to Islam.
Now the constitutional bench of the Hon’ble Supreme Court in Principle, Guntur

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Medical College v. Mohan Rao2 laid down that person whose parents or grandparents,
originally belonged to scheduled caste before conversion to some other religion can,
on re-conversion to Hinduism, be regarded as the member of the schedule caste, only
if they are accepted by the members of that caste.
2. In Devararajan and others3 AIR 1984 SC 411, the Supreme Court examined the legal
position in regard to caste status on conversion or re-conversion to Hinduism held that
no particular ceremony was prescribed for re-conversion to Hinduism. But as Mohan
underwent the Suddhi Ceremony performed in the case of Arya Samajists further
strengthen the fact that his conversion was successful.
3. Constitution (schedule Caste) order 3, 1950 clearly states that “Notwithstanding
anything contained in paragraph 2, no person who professes a religion different from
Hinduism shall be deemed to be a member of schedule caste.” which clearly means
that their is no requirement that a person belonging to the other religion cannot
convert to Hinduism if he is not born in Hinduism.
4. The principle reiterated in the case Slevi M. Shyamala v. Tamil Nadu State Scrutiny
Committee4 was that a person born to converted parents, originally belonged to Hindu
religion can become a member of the caste to which his parents belonged, prior to the
conversion, subject to the acceptance by the other members of the caste.
5. Also, in the case of Durgaprasada Rao v. Sudarasanaswam5, it was observed that on
conversion to Hinduism a person born of some other religion converts would not
become a member of the caste to which his parents belonged prior to their conversion
to Christianity, automatically or as a matter of course, but he would become such
member, if the other members of the caste accept him as a member and admit him
within the fold.

2
[1976] 3 SCR 1046
3
[1984] AIR 411
4
[2009] 2 MLJ 278
5
[1940] 1 MLJ 800

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ISSUE II

(II) Whether the conversion of Fatima was valid ?

1: The conversion of Fatima (respondant) is completely invalid is hinders the
Fundamental Right of right to freedom of religion under Article 25 of the
Indian Constitution.
1. As per the Article 25 of the Indian Constitution, all persons are equally entitled
to freedom of conscience and the right freely to profess, practise and propagate
religion. Any conversion which is done under the compulsion is violative of
Right to Freedom of Religion guaranteed by Art-25 of the constitution of India.

2. Mohan insisted Fatima to marry him under the emotional threat and pressure
which is violative of Art 25(1) of the Indian Constitution. The word propagate
used in Art 25 of the Indian Constitution means to transmit or spread from
person to person or from place to place. The Article doesn’t grant right to
convert other person to one’s own religion or spread one’s religion by an
exposition of it’s tenets.

3. In Stainislaus v. State Of Madhya Pradesh 6 , The validity of Madhya Pradesh

Dharam Swantantraya Adhinivam 1968 and Orissa Freedom of Religion Act
1967 was examined. It was said in the same judgment that In the name of
religion propagation, on one has a right to convert a person to another religion
under pressure or inducement.
4. In Sujatha v. Jose Augustine 7 , Karnataka High Court observed that to be a
Christian, one must truly profess the Christian faith and the fact that one has
undergone the ceremony of baptism may not by itself be sufficient to hold that
he or she has become a Christian. The fundamental thing to be established before
one can be held to be Christian is that the person concerned truly believes in and
professes the Christian faith.
5. In Perumal v. Ponnuswami 8, The test of conversion that has been put forward by
the Supreme Court is “A person may be Hindu by birth or by conversion. A mere

6
[1977] AIR 908,[1977] SCR(2) 611
7
[1944] DMC 442
8
[1971] AIR 2352, [1971] SCR (1) 49

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theoretical allegiance to the Hindu faith by a person born in another faith does
not convert him into a Hindu, nor is a bare declaration that he is a Hindu
sufficient to convert him to Hinduism. But a bona fide intention to be converted
to the Hindu faith, accompanied by conduct unequivocally expressing that
intention may be sufficient evidence of conversion. No formal ceremony of
purification or expiation is necessary to effectuate conversion”.

6. Fatima after her conversion didn’t show any kind of intention that may
substantiate her conversion, Although there was a formal Suddhi ceremony that
was performed but soon after that ceremony she married again under Muslim
form wherein Qazi performed their marriage, So this clearly shows that
equivocal conduct was seriously missing.

ISSUE III

(III) The marriage was void

7. The defendant disputes the existence of a valid marriage as the conversion of
Defendant from Islam to Hinduism was not valid, because she was made to
marry under the emotional threat by Mohan. The consent of the said marriage
was taken under the undue influence.

8. In the case Savita Ben Somabhai Bhatiya v. State of Gujarat 9 , The court held
that if the wife never converted into Hindu before marriage, then her marriage
could not be solemnized unless conversion according to the Hindu rituals done
with prior consent, thereby the marriage between a non-Hindu and the applicant
would be contrary to the provisions of the law, furbishing parties to justify their
claims on other grounds.

9. Under Section 5 of Hindu Marriage Act, 1955 marriage can only be solemnized
between two Hindus. Mohan being a Hindu cannot marry a Fatima as her

9 Appeal (crl.) 399 of 2005

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conversion to Hinduism is invalid. 210 of HMA, 1955 clearly lays down that this act
applies to any person who is a Hindu and not to any other person such as Muslim,
Christian, Parsi or Jew by religion. Also, the primary condition which is to be fulfilled
for solemnization of Hindu marriage between two persons is that they both should be
Hindus as stipulated by Sec 5.11

10. 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 12 and in
addition to this must satisfy the condition as laid down in Sec 5 13 and should be
solemnized as specified in Sec 7.14 Hence, Hindu form of marriage is invalid because
both the persons are not Hindus which is a condition precedent for solemnization of
marriage under Hindu Law.

11. Marriage or nikah, according to Muslim law, is defined to be a contract15 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. 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.

ISSUE IV
IV. The restitution of conjugal rights is not possible

1. Section 9, Hindu Marriage Act, 1955 provides for the Restitution of Conjugal
Rights wherein it provides relief to the party if one spouse withdraws from
the society of other for no reasonable cause but the prerequisite condition of
such relief is a valid marriage. The sine qua non for maintaining an
application under Section 9 is the existence of relationship of husband and

10
Sec 2, Hindu Marriage Act, 1955 Application of Act.
11
Jacintha Kamath v. K. Padmanabha Kamath, AIR 1992 Karn. 372.
12
Asfaq Qureshi v Aysha Qureshi, AIR 2010 Chh 58.
13
Sec 5 of Hindu Marriage Act, 1955 Conditions for a Hindu marriage.
14
Sec 7, Hindu Marriage Act, 1955 Ceremonies for a Hindu marriage.
15
Hasina Bano v Alam Noor, AIR 2007 Raj 49.

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wife having no dispute in their existence of marriage between them for

seeking decree for restitution of conjugal rights. If the fact of the valid
marriage is not established, the rejection of a prayer for the restitution of
conjugal rights is proper. An application for restitution of conjugal rights can
be entertained only when the marriage between the parties is valid. 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.16

2. It is humbly submitted before this Hon’ble Court that in the instant case restitution
of conjugal rights under the Hindu Marriage Act, 1955 will not be given to Mohan
because of the invalidity of the Hindu Marriage. 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 rights17 and the family court18 will
grant the relief if there is no legal bar to such decree.19

12. 20

16
Jiva Magan v. Bai Jethi, AIR 1941 Bom 535.
17
Neera v Krishna Swarup, AIR 1975 All 337; Sushil Kumar v Prem Kumar, AIR 1976 Del 321.
18
Family Courts Act 1984 Sec 7(1) Explanation(a): Wherever a family court has been established the family
court has exclusive jurisdiction to entertain applications which were previously exercisable by a district court.
19
Sanjeev Nayan Kumar v Priti Kumari, AIR 2011 Jhar 1.

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PRAYER

Wherefore in the light of the facts stated, issues raised, authorities cited and
pleadings advanced, it is most humbly prayed before this Honorable Court that it
may be graciously pleased to:

1. Kindly dismiss the appeal by the defendant who wants restitution of conjugal rights
under the hindu marriage act 1955.

And, pass any other order that it deems fit in the interest of justice, equity and good
conscience. All of which is respectfully submitted.

Respectfully Submitted on behalf of the respondent

Utsav Sharma

Counsel No. 19IP63048

Counsel for the respondent

Date: 5th Nov 2019

Place: IIT, Kharagpur

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