Team Code- TLCM46

MANAV RACHNA LAW AND TECHNOLOGY NATIONAL MOOT

3rd Online Memorial Writing
COURT and Drafting Competition
COMPETITION, 2022 by The Law
Communicants,
2021 2022

Before
THE HON’BLE DISTRICT COURT
u/s 9 of Hindu Marriage Act, 1955
“Petition for Restitution of Conjugal Rights”

In the matter of

Ruchika…………………………………………. (PETITIONER)
VERSUS
Dhruv……………………………………………. (RESPONDENT)

UPON THE SUBMISSION TO THE HON’BLE JUDGES

OF THE HON’BLE DISTRICT COURT

Counsel on behalf of Respondent

MEMORIAL ON BEHALF OF RESPONDENT
 3rd Online Memorial Writing and Drafting Competition by The Law
Communicants, 2022

TABLE OF CONTENTS

LIST OF ABREVIATIONS………………………………………………………………..03

INDEX OF AUTHORITIES…………………………………………………………….....04

STATEMENT OF JURISDICTION……………………………………………………....06

STATEMENT OF FACTS…………………………………………………………………07

STATEMENTS OF ISSUES……………………………………………………………….12

SUMMARY OF ARGUMENTS……………………………………………………….......13

ARGUMENTS ADVANCED………………………………………………………………15

1. WHETHER THE PRESENT PETITION IS MAINTAINABLE?.............................12

1.1. Only Hindus are entitled to relief under S.9. of Hindu Marriage Act , 1955……………12
1.2. Petition for Restitution of Conjugal Rights maintainable only when there is a
valid marriage……………………………………………………………………………13
1.3. Petitioner is already married to Richard Gomes & therefore allowing this petition would
make it a matter of bigamy……………………………………………………………….14

2. WHETHER THE IMPUGNED MARRIAGE IS A VALID MARRIAGE AS PER

HINDU MARRIAGE ACT, 1955?..................................................................................14

1.1. There should be a free consent for Valid Marriage………………………………………15

1.2. The parties to the marriage must be Hindus to constitute a Valid Marriage…………….16
1.3. Marriage solemnised without dissolving the previous marriage is void & also an
offense under section 494 of India Penal Code, 1860…………………………………….17

~Memorial on Behalf of Respondent~

 3rd Online Memorial Writing and Drafting Competition by The Law
Communicants, 2022

3. WHETHER RESTITUTION OF CONJUGAL RIGHTS UNDER SECTION 9 OF

HINDU MARRIAGE ACT, 1955 CONSTITUTIONALLY VALID?........................17

1.1. Section 9 of HMA, 1955 grossest form of violation of right to privacy………………..17

1.2. Violative of Article 19…………………………………………………………………..18
1.3. Marriage cannot be tyranny & Sexual Cohabitation essential part of RCR,
turning Marriage into tyranny……………………………………………………………19
1.4. According to International norms of RCR, it has survived in India perhaps
due to laxity………………………………………………………………………………20
1.5. Deception………………………………………………………………………………..20
1.6. Difficulties in enforcement of decree……………………………………………………21.

PRAYER FOR RELIEF …………………………………………………………………..22

ANNEXURE 1………………………………………………………………………………23

ANNEXURE 2………………………………………………………………………………24

~Memorial on Behalf of Respondent~

3rd Online Memorial Writing and Drafting Competition by The Law
Communicants, 2022

LIST OF ABBREVIATIONS

& And
ANR Another
AIR All India Reporter
BOMLR Bombay Law Reporter
ORS Others
SC Supreme Court
SCR Supreme Court Reporter
SCC Supreme Court Cases
UOI Union Of India
V. Versus
WLN Weekly Law Notes

~Memorial on Behalf of Respondent~

 3rd Online Memorial Writing and Drafting Competition by The Law
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INDEX OF AUTHORITIES

A. ACTS & STATUTES

q Hindu Marriage Act, 1955 (Act 25 of 1955)
q Constitution of India
q Indian Penal Code, 1860 (Act 45 of 1860)

B. LEGAL DATABASE
q Manupatra
q SCC Online

C. BOOKS
q Mulla Hindu Law by Sir Dinshaw Mulla, Satyajit A.Desai (23rd Ed.)
q Hindu Law by B.M. Gandhi (4th Ed.)
q Modern Hindu Law by Paras Diwan (25th Ed.)
q Hindu Law by R.K. Aggarwal (26th Ed.)

D. CASE LAWS

S.No Title Citation Appear On

Page(S)
1. Neeta Kirti Desai v. Bino Samuel George AIR 1998 Bom 74 13

2. Ranjana Kejriwal v. Vinod Kumar Kejriwal AIR 1997 Bom 380 13

3. Anath Nath De vs. Sm. Lajjabati Devi AIR 1959 Cal 778
14
4. Smt. Yamunabai Anant Rao Adhar v. Anant AIR 1988 SC 644 16
Rao Thiraram Adhar
5. Shanti Dev Berma v. Smt. Kanchan Prava AIR 1991 SC 816 16
Dev
6. K.S. Puttaswamy v. Union of India (2017) 10 SCC 1 17
7. Joseph Shine v. Union of India (2019) 3 SCC 39, AIR 17
2018 SC 4898

~Memorial on Behalf of Respondent~

3rd Online Memorial Writing and Drafting Competition by The Law
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8. Sareetha v. T. Venkatasubbaiah AIR 1983 AP 356. 18

9. Govind v. State of MP AIR 1975 SC 1378, 18

(1975) 2 SCC 148
10. Shakila Banu v. Gulam Mustafa AIR 1971 Bom 166, 18
(1970) 72 BOMLR
623, ILR 1971 Bom
714

11. Huhram v. Misri Bai AIR 1979 MP 144 19

12. Atma Ram v. Nirmala Devi AIR 1980 Raj 35, 19
1979 WLN 184
13. Tirath Kaur v. Kirpal Singh AIR 1964 Punjab 19
28.

14. T. Sareetha v. T.Venkata Subbaiah AIR 1983 AP 356. 19

~Memorial on Behalf of Respondent~

 3rd Online Memorial Writing and Drafting Competition by The Law
Communicants, 2022

STATEMENT OF JURISDICTION

The counsel for Respondent, “Dhruv” hereby humbly submit to this Hon’ble Court’s
jurisdiction under Section 91 of Hindu Marriage Act, 1955.

1
Restitution of Conjugal Right.— When either the husband or the wife has, without reasonable excuse,
withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for
restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition
and that there is no legal ground why the application should not be granted, may decree restitution of conjugal
rights accordingly.

[Explanation.—Where a question arises whether there has been reasonable excuse for withdrawal from the
society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.]

~Memorial on Behalf of Respondent~

 3rd Online Memorial Writing and Drafting Competition by The Law
Communicants, 2022

STATEMENT OF FACTS

For the sake of brevity and convenience of the Hon’ble Court, the facts of the present case
are stated hereunder:-

BACKGROUND

Ruchika has filed an application for restitution of conjugal rights under Hindu Marriage Act,
1955. Ruchika (Christian by birth, converted Hindu) married Dhruv in Rameshwara temple
near Ratnagiri hills on 15th March, 2004 by exchange of garlands. She further joined her
husband where her mother-in-law started ill-treating her for reason that their marriage was not
an arranged marriage and the marriage performed was not a marriage at all. Subsequently,
Ruchika and her husband went to Sanskar Sangha (a Trust which manages the Rameshwara
temple at the Ratnagiri hills) which is also established on the Ratnagiri hill where there is total
prohibition on brining any kind of food item and alcoholic drinks on Ratnagiri hills from
outside. There they performed all marriage ceremonies like Saptapadi, Mangala Sutra danam
etc. on 4th October, 2004 in the Rameshwara Sanskar Sangha hall under the supervision of the
purohit (authorized person of the Trust) and thus the marriage was solemnized. The husband
who was under the thumb of his mother deserted her in March 2005 and she has been living
separately ever since. Dhruv states that he came into contact with Ruchika when she was
introduced to him in a family function.

He did not marry by exchange of garlands as alleged by her on 15th March, 2004 instead he
married his maternal uncle’s daughter on 6th June 2004. He further alleges that taking
advantage of his state of drunkenness Ruchika took him to Ratnagiri and he did not know as to
what was going on 4th October 2004. He also states that Ruchika is Christian and he had
produced an affidavit (in which her husband’s name is also mentioned) signed by her and
attested by a notary to the effect that she is Christian and the affidavit was needed for securing
employment. Dhruv also got hold of a birth certificate wherein it is stated that Ruchika gave
birth to a male child 3 years prior 15th March, 2004 and the husband’s name is mentioned as
Richard Gomes. Dhruv therefore contends that his marriage if at all there is one with Ruchika
is not a valid marriage and she is not entitled for Restitution of Conjugal rights. Decide the
case.

~Memorial on Behalf of Respondent~

3rd Online Memorial Writing and Drafting Competition by The Law
Communicants, 2022

STATEMENT OF ISSUES

The Hon’ble District Court is presented with following issues:-

ISSUE 1.SUE 1.

Whether The Present Petition Is Maintainable?

ISSUE 2.

Whether The Impugned Marriage Is A Valid Marriage As Per Hindu

Marriage Act, 1955?

ISSUE 3.

Whether Restitution Of Conjugal Rights Under

Section 9 Of Hindu Marriage Act, 1955 is Constitutionally Valid?

~Memorial on Behalf of Respondent~

 3rd Online Memorial Writing and Drafting Competition by The Law
Communicants, 2022

SUMMARY OF ARGUMENTS

I. WHETHER THE PRESENT PETITION IS MAINTAINABLE?

The Respondent most humbly submits before this Hon’ble Court that the present petition under
Section 9 of Hindu Marriage Act, 1955 is not maintainable in terms of its legality. The very
first contention that support this argument is that the applicability of this Act restricts itself to
Hindus only and Petitioner being a Christian cannot claim any such benefits per se. Apart from
this, in a decree for Restitution of Conjugal Rights in favour of the aggrieved spouse can only
be granted when the marriage solemnised between them was a valid one but in the present
scenario the status of validity of the marriage is in question. Last contention which contests the
maintainability of the current petition is that the Petitioner already had a prior marriage
subsisting as per the documentary evidences like the Birth Certificate and no proof of its
dissolution therefore, if this petition is maintained and decree of RCR is granted then it will
prove the existence of previous conjugal rights between Petitioner & Respondent and will be a
matter of bigamy.

II. WHETHER THE IMPUGNED MARRIAGE IS A VALID MARRIAGE AS PER

HINDU MARRIAGE ACT, 1955?

The Respondent most humbly submits before this Hon’ble Court that the marriage in question
is not even a valid marriage and since there never existed any Conjugal rights between the
parties so the question of its restitution does not arise at the first place. The contention to
support this argument is that the Respondent alleges that there was no consent on his part and
a marriage which lacks the consent of the party cannot be deemed as valid marriage. Secondly,
another contention is that in order to constitute a valid marriage under Hindu Law the parties
to the marriage must necessarily be Hindus but in the present case it can be deduced on the
basis of the Affidavit that the Petitioner belonged to Christianity. Thirdly, as per the Birth
Certificate of the Petitioner’s Child born on 15th March, 2004, she was married to a third person
and Hindu Law strictly prohibits second marriage and section 17 would further make the
offending party liable for prosecution under Section 494 & 495 of IPC. The fact that there is

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~Memorial on Behalf of Respondent~

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no evidence of dissolution of previous marriage of Petitioner so this marriage as matter of fact

void at very onset.

III. WHETHER RESTITUTION OF CONJUGAL RIGHTS UNDER SECTION 9

HINDU MARRIAGE ACT, 1955 CONSTITUTIONALLY VALID?

The Respondent most humbly submits that Restitution of Conjugal Rights under Hindu
Marriage Act, 1955 is not constitutionally valid as marriage is a bond of emotions. The
withdrawing spouse’s will is not taken into account. If all this is accomplished by force, how
will any love and affection be brought about that a marriage should have?
Restitution of Conjugal Rights is based on a noble cause but has lost its importance with the
evolving times and social scenarios and does not produce the required impact.
The cases of abuse and redundancy are growing quickly. The provision of Restitution of
Conjugal Rights violates Article 14, 19 and 21 of the Constitution of India. Such a provision
that is incompatible with changing times is detrimental and obsolete, should be eliminated.

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~Memorial on Behalf of Respondent~

 3rd Online Memorial Writing and Drafting Competition by The Law
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ARGUMENTS ADVANCED

I. WHETHER THE PRESENT PETITION IS MAINTAINABLE?

It is most humbly submitted before this Hon’ble Court:-

1.1. ONLY HINDUS ARE ENTITLED TO RELIEF UNDER S.9. OF HINDU

MARRIAGE ACT , 1955

The Counsel for Respondent humbly submits that Section 9 of Hindu Marriage Act, 1955
which exclusively deals with the provision of Restitution of Conjugal Rights is applicable only
to Hindu parties.
Section 2 of HMA, 1955 lays down the applicability of the provisions of this act and it mentions
that this act applies to :
(a) to any person who is a Hindu by religion in any of its forms or developments, including a

Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,

(b) to any person who is a Buddhist, Jaina or Sikh by religion, and

(c) to any other person domiciled in the territories to which this Act extends who is not a
Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not
have been governed by the Hindu law or by any custom or usage as part of that law in respect
of any of the matters dealt with herein if this Act had not been passed.

Explanation.—The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as

the case may be:—

(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas
or Sikhs by religion;

(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or
Sikh by religion and who is brought up as a member of the tribe, community, group or family
to which such parent belongs or belonged; and

(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.

(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall
apply to the members of any Scheduled tribe within the meaning of clause (25) of article 366

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~Memorial on Behalf of Respondent~

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of the Constitution unless the Central Government, by notification in the Official Gazette,
otherwise directs.

(3) The expression “Hindu” in any portion of this Act shall be construed as if it included a
person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies
by virtue of the provisions contained in this section.

As held by Bombay High Court in the case of Neeta Kirti Desai v. Bino Samuel George2 which
pertained to the application of the Hindu Marriage Act, in a case where both the parties were
not Hindus but only one party (wife) was Hindu and not the husband that they are not entitled
to any benefits under this particular Act.

According to the factual matrix, the affidavit of the petitioner Ruchika throws clarity on her
religion and shows that she is Christian by a religion and not a Hindu. As mentioned by Sub-
section 1 clause (3) the Act does not apply to Christians. Therefore, the petitioner cannot
claim any perk or benefits as far as this Act is concerned.

1.2. PETITION FOR RESTITUTION OF CONJUGAL RIGHTS MAINTAINABLE

ONLY WHEN THERE IS A VALID MARRIAGE

The Respondent humbly submits that while granting a decree for Restitution of Conjugal
Rights there is a presumption of valid marriage. In other words, a valid marriage is perquisite
and a sine qua non for deriving benefits under Section 9 of the Hindu Marriage Act, 1950.

As held in the case of Ranjana Kejriwal v. Vinod Kumar Kejriwal3 Petitioner Wife alleged
that the husband was already married and had suppressed the fact from her. The Hon’ble Court
held that the petition for restitution of conjugal rights is not maintainable since there is no legal
marriage.
The present facts raise eyebrows at the validity of the marriage between the Petitioner and the
Respondent at several points. One of the major facts that nullifies the validity of this marriage
is lack of consent of the respondent and that the marriage was performed in the state of
Intoxication. Section 5(ii) makes consent a condition for valid marriage. Similarly, the fact that
Petitioner already had one marriage subsisting with Richard Gomes makes the present marriage

2
AIR 1998 Bom 74
3
AIR 1997 Bom 380
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~Memorial on Behalf of Respondent~

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null and void as section 5(i) of Hindu Marriage Act clearly outlines that ‘Neither party should
have a spouse living at the time of marriage’.

Hence, the invalidity of the impugned marriage makes the Petitioner unjustified in claiming
any rights under Hindu Marriage Act, 1955 including the Restitution of Conjugal Rights.

1.3 PETITIONER IS ALREADY MARRIED TO RICHARD GOMES & THEREFORE

ALLOWING THIS PETITION WOULD MAKE IT A MATTER OF BIGAMY

The Respondent humbly submits before this Hon’ble court that the Birth Certificate as
provided by the Respondent shows the status of Petitioner’s prior marriage, which means that
while the existence of prior marriage of the Petitioner the question of the current marriage
should not even arise at the first place. If the Petitioner is made entitled to the present demand
for Restitution of Conjugal Rights then it will hint at the validity of the present marriage along
with the prior marriage. Allowing this petition will not only be in conflict with Section 5(i) of
Hindu Marriage Act, 1955 but also with the Criminal law. The Respondent raises the
contention that the marriage in question never happened at the first place and if it is considered
that it was solemnized then it would ultimately make the Petitioner liable for offense of Bigamy
under Section 494 of Indian Penal Code, 1860 since there is no proof of dissolution of her
marriage with Richard Gomes.

II. WHETHER THE IMPUGNED MARRIAGE IS A VALID MARRIAGE AS PER

HINDU MARRIAGE ACT, 1955?

It is most humbly submitted before this Hon’ble Court:-

1.1. THERE SHOULD BE A FREE CONSENT FOR VALID MARRIAGE

In the case of Anath Nath De vs. Sm. Lajjabati Devi4, it was mentioned by the Calcutta High
Court that Hindu Marriage Act, 1955 presupposes the existence of free consent in order

4
AIR 1959 Cal 778
14

~Memorial on Behalf of Respondent~

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consider any marriage as a valid marriage. Rayden on Divorce 7th Edition page 72 Article
11 summarises the law on the point as follows:

Fraud and duress: Apart from duress or imbecility of mind amounting to insanity and apart
from the grounds for avoiding a marriage in the circumstances introduced by statute in 1937,
fraudulent misrepresentation, or concealment, does not affect the validity of a marriage to
which the parties freely consented with a knowledge of the nature of the contract. But if a
person is induced to go through a ceremony of marriage by threats; or duress or in a state of
intoxication, without any real consent to the marriage, it is invalid; in all such cases the test of
validity is real consent to the marriage."

There is an analogous provision in Section 19 of the Indian Divorce Act, modelled on the then
law of marriage in England, which deals with the grounds of decree in these terms:

"Nothing in this section shall affect the jurisdiction of the High Court to make decree of nullity
of marriage on the ground that the consent of either party was obtained by force or fraud."

The Respondent was not in the condition and form to give a consent by proper contemplation
as he was in a state of intoxication, although it is laid in the facts that there was a total
prohibition on brining any kind of food item and alcoholic drinks on Ratnagiri hills from
outside but the Counsel for Respondent submit that in the present case the alcoholic drink was
not taken in the premises instead the Respondent was intoxicated beforehand and therefore he
made to perform the marriage ceremonies in a state which devoid him of his power to
understand the nature of his acts and the consent in this case cannot be deemed as a free consent
as there was never any consensus-ad-idem so the marriage of such sort cannot be termed as a
valid one.

1.2. THE PARTIES TO THE MARRIAGE MUST BE HINDUS TO CONSTITUTE A

VALID MARRIAGE

The Respondents humbly submits that in order to constitute a Valid Marriage under Hindu
Marriage Act, 1955 it is sine qua non that religion of both the parties to the marriage should
only be Hinduism. Section 2 of Hindu Marriage Act clearly mandates it and lays down what
all constitutes “Hindus” in exact sense. According to the facts in hand, Petitioner belongs to

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~Memorial on Behalf of Respondent~

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Christianity, and it is not a hearsay fact but deduced based on an Affidavit that she submitted
for employment purposes. Since the Petitioner does not even belong to Hindu religion and so
the provisions of Hindu Marriage Act, 1955 does not govern her marriage if at all there was
any marriage. Now since the marriage was invalid due to this repugnancy the Petitioner is not
entitled to claim benefits under Section 9 of the said Act.

1.3. MARRIAGE SOLEMNISED WITHOUT DISSOLVING THE PREVIOUS

MARRIAGE IS VOID & ALSO AN OFFENSE UNDER SECTION 494 & 485 OF
INDIAN PENAL CODE, 1860

The Respondents humbly submits that condition laid in Section 5(i) of Hindu Marriage Act,
1955 for a valid marriage is one of those conditions, contravention of which would make the
marriage void under Section 11 of the Act. Section 17 would further render the offending party
liable for prosecution under Sections 494 & 495 of Indian Penal Code. Section 17 of Hindu
Marriage Act lays down, “Any marriage between two Hindus solemnized after the
commencement of this Act is void if at the date of such marriage either party has a husband or
wife living; and the provisions of the Indian Penal Code shall apply accordingly.”

Accordingly, the Hon’ble Apex Court in Smt. Yamunabai Anant Rao Adhar v. Anant Rao
Thiraram Adhar5 held that the marriage becomes null and void where it is in violation of the
first condition of Section 5. It becomes void ab initio and ipso facto. As per the facts in hand
the Petitioner claiming second marriage with the Respondent despite having the previous
marriage existing is totally bogus claim.

Further, in Shanti Dev Berma v. Smt. Kanchan Prava Devi6 the Hon’ble Supreme Court held
that the proof of the performance of ceremonies is essential for a valid marriage.
Presently, the previous marriage alleged by the Petitioner was invalid due to lack of proper
ceremonial formalities and as a result the Petitioner attempted to reperform the marriage
ceremony by means of deception which is enough justification of Respondent’s contention in
this regard.

5
AIR 1988 SC 644
6
AIR 1991 SC 816
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~Memorial on Behalf of Respondent~

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III. WHETHER RESTITUTION OF CONJUGAL RIGHTS UNDER SECTION 9

HINDU MARRIAGE ACT, 1955 CONSTITUTIONALLY VALID?

It is most humbly submitted before this Hon’ble Court:-

1.1. SECTION 9 OF HMA, 1955 GROSSEST FORM OF VIOLATION OF RIGHT TO

PRIVACY

The Counsel for Respondent humbly state that Section 9 of Hindu Marriage Act, 1955 is
grossest form of violation of Right to Privacy. Granting a decree for restitution of conjugal
right is a ‘coercive act’ on the part of the state compelling a spouse to live with another spouse
opposed to his/her will. Further, the act is violative of one’s sexual autonomy, the right to
privacy, and right to live a dignified life as guaranteed under Article 21 of the Constitution of
India. Even though these sections provide a right to both husband and wife to approach the
court, however, these sections are discriminatory against women and women are treated as
‘chattel’ by these laws. 7
As per a report presented by the High-Level Committee on the status of women in 2015, the
restitution of conjugal rights has no relevance in independent India.
The Law Commission of India, on the recommendation of the report, suggested the deletion of
Section 9 of the HMA,1955, and Section 22 of the SMA, 1954 in its ‘Consultation Paper on
Reform of Family Law’ in 2018.

Further, in the case of K.S. Puttaswamy v. Union of India,8 the Hon’ble Supreme Court upheld
the fundamental right to privacy which grants individuals complete autonomy over their body.

Additionally, in the case of Joseph Shine v. Union of India9, the apex court observed that the
right to privacy depends on the exercise of autonomy by individuals. If an individual is disabled
from exercising his/her the right to privacy then the court must take steps to ensure that the

7
The restitution of conjugal rights in Indian law violates the right to
privacy, OHRH,https://ohrh.law.ox.ac.uk/the restitution-of-conjugal-rights-in-indian-law-violates-the-right-to-
privacy/ (last visited Jul 19, 2022).
8
(2017) 10 SCC 1
9
(2019) 3 SCC 39, AIR 2018 SC 4898
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~Memorial on Behalf of Respondent~

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person’s right is realised in its fullest sense. The Court further observed that an individual’s
right to privacy cannot be infringed by regarding familial structures as private space.

A progressive opinion was laid down by the Andhra Pradesh High Court in the case of T.
Sareetha v. T. Venkatasubbaiah10 where the Court considered Section 9 a serious breach of
the right to privacy of spouses. This judgment was a step towards making amends to this feudal
provision which infringed upon fundamental rights of individuals in the guise of preserving
matrimonial bonds.

In the case of Govind v. State of MP11, the Hon’ble Court established that right to privacy is a
fundamental right, but like its American counterpart, it was included in the liberty clause.
Hon’ble Justice Mathew observed that “any right to privacy must compass and protect the
personal intimacies of the home, the family, marriage, motherhood, procreation, and child-
rearing.”

In case of Shakila Banu v. Gulam Mustafa,12 the Hon’ble High Court observed: “The concept
of restitution of conjugal rights is a relic of ancient times when slavery or quasi-slavery was
regarded as natural. This is particularly so after the Constitution of India came into force, which
guarantees personal liberties and equality of status and opportunity to men and women alike
and therefore provisions like this are difficult to survive.

1.2. VIOLATIVE OF ARTICLE 19

The Counsel for Respondent wish to humbly state before this Hon’ble court that the decree of
restitution of conjugal rights violate:

q Freedom of association 19(1)(c)

q Freedom to reside or settle in any part of India (19)(1)(e)

q Freedom to practice any profession 19(1)(g)

Grant of a decree of restitution of conjugal rights compels a spouse to live with his/her spouse
against his/her will. This violates the freedom of association guaranteed under Article 19 of the

10
AIR 1983 AP 356.
11
AIR 1975 SC 1378, (1975) 2 SCC 148
12
AIR 1971 Bom 166, (1970) 72 BOMLR 623, ILR 1971 Bom 714
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~Memorial on Behalf of Respondent~

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Constitution of India. In the case Huhhram v. Misri Bai,13 the wife left her husband because
her father-in-law had an evil eye on her and the husband treated her badly. Even after that, the
Madhya Pradesh High Court granted a decree of restitution to the husband. It can be concluded
that If she was molested by her father-in-law because of her association with her husband due
to the decree, then the decree of the court would be responsible for the mishap. Further, in the
case of Atma Ram v. Nirmala Devi14 the Rajasthan High Court granted a decree of restitution
in favour of the wife even when the husband clearly stated that he does not want to live with
her. This clearly violates the freedom of association of the husband.

The decree of restitution of conjugal rights also violates the freedom to reside in any part of
India because a spouse is forced to come and live with another spouse at his/her
home. Additionally, it also violates the freedom of practising any profession in many cases.

In the case of Tirath Kaur v. Kripal Singh,15 the wife was staying away from her husband in
order to practice her job. However, due to certain conflicts, the husband asked his wife to leave
her job and on denial, he filed a petition for restitution of conjugal rights. The court granted
him the decree thus, forcing the wife to live with her spouse. This is a clear violation of freedom
to settle in any part of India and to practice any profession.

1.3. MARRIAGE CANNOT BE A TYRANNY & SEXUAL COHABITATION IS

ESSENTIAL PART OF RCR, TURNING MARRIAGE INTO TYRANNY

The Counsel for the Respondent would like reiterate the judgement of T. Sareetha v.
T.Venkata Subbaiah16 to draw the attention of this Hon’ble Court, it was held that the fact that
sexual cohabitation is an essential aspect of a decree of restitution of conjugal rights it transfers
an individual’s choice to engage in marital intercourse from the individual to the State. Forced
sexual and consensual act are both equally potent in producing offspring. Conception and
delivery of a child involve the most intimate use of a woman’s body.

13
AIR 1979 MP 144
14
AIR 1980 Raj 35, 1979 WLN 184
15
AIR 1964 Punjab 28.
16
AIR 1983 AP 356.
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~Memorial on Behalf of Respondent~

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Restitution of conjugal rights constitutes the grossest form of violation of an individual’s right
to privacy.
Same is in the case of a man who is made to cohabit with a women against a will and at some
point the fact that petitioner and respondent are residing under the same roof may give rise to
expectation of consummation in the mind of petitioner which is totally against the will and
privacy of the Respondent.

1.4. ACCORDING TO INTERNATIONAL NORMS OF RCR, IT HAS SURVIVED IN

INDIA PERHAPS DUE TO LAXITY

The Law of RCR provides that when either husband or the wife withdraws from the society of
the other, the aggrieved party may apply to the Court for a direction that the other party should
live with him or her. The remedy of restitution of conjugal rights traces its root back to the
British Common Law and is premised on the discriminatory and archaic notion that women
are the chattels of the husband. Every common law country from the United Kingdom to
Canada has abolished this remedy from their legal system and India is the only legal system
where it still survives. After Independence, while the Hindu Marriage Act was being
formulated, various lawmakers had termed RCR as a mechanism for “legalized rape”.
However, no deliberation was given to this provision because the energies in and out of the
legislature were deeply concentrated in defending various other new provisions inter alia
divorce. Resultantly, RCR did not go through intelligent and unbiased scrutiny and was
perfunctorily copied from the English statute books. It can also be said that RCR is yet another
colonial legacy of the British and is not at all unique to Indian society. Thus, it would be correct
to say that the RCR law in India has survived perhaps due to legislative laxity and nothing
else.17

1.5. DECEPTION

The Respondent humbly submits that reconciliation between the husband and wife to save their
marriage is the primary reason for the restitution of conjugal rights. However, when filing for

17
The Docket / Law and History Review, Kanika Sharma: Restitution of conjugal rights: A pernicious legal
transplant Law History Review (2020), https://lawandhistoryreview.org/article/kanika-sharma-restitution-of-
conjugal-rights-a-pernicious-legal-transplant/ (last visited Jul 19, 2022).
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~Memorial on Behalf of Respondent~

 3rd Online Memorial Writing and Drafting Competition by The Law
Communicants, 2022

the same, individuals often have other ulterior motives. In addition, section 13 (1-A) of the
Hindu Marriage Act, 1955 states that it can be used as a ground for divorce if it is not complied
with. This defeats Section 9’s own purpose as its purpose is to prevent divorce.

1.6. DIFFICULTIES IN ENFORCEMENT OF DECREE

The Respondent humbly submits that a general reason which justifies why the Restitution of
Conjugal Rights needs abrogation is that if an individual fails to comply, under Rule 32(1), the
Court may attach the decree holder’s property by selling their property within 6 months.
However, when the wife does not own property, which is very prevalent in India, this becomes
an issue. Then there is a method to determine her share of the estate of her husband.

Therefore, the Counsel for Respondent states that although Section 9 of Hindu Marriage Act,
1944 can compel the spouses to cohabit but in no way can ensure an effective relationship.
Further, if such a decree violates any constitutional right, then it becomes extremely crucial to
repeal it. With all the ambiguities that lie within the sections pertaining to restitution of
conjugal rights, it has become extremely important for the Hon’ble Court to look into the matter
and to ensure that this right which is considered as a remedy does not violate somebody’s
fundamental rights and in case if it violates the fundamental rights, then the same must be held
unconstitutional at the earliest.

***

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~Memorial on Behalf of Respondent~

 3rd Online Memorial Writing and Drafting Competition by The Law
Communicants, 2022

PRAYER FOR RELIEF

WHEREFORE, in the light of facts stated, issues raised, authorities cited and arguments
advanced, it is most humbly prayed and implored before the Honourable District Court that it
may be graciously pleased to adjudge and declare that –

1. The present petition is not maintainable.

2. The impugned marriage is not a valid marriage.
3. Restitution of Conjugal Rights under Section 9 of Hindu Marriage Act, 1955 is
unconstitutional.

AND/OR

Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests of
Justice, Fairness, Equity and Good Conscience.

For This Act of Kindness, the Respondents Shall Duty Bound Hold Forever Pray.

Sd/-
(Counsel on behalf of the Respondent)

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~Memorial on Behalf of Respondent~

3rd Online Memorial Writing and Drafting Competition by The Law
Communicants, 2022

ANNEXURE 1. Birth Certificate

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~Memorial on Behalf of Respondent~

 3rd Online Memorial Writing and Drafting Competition by The Law
Communicants, 2022

ANNEXURE 2: Affidavit

AFFIDAVIT

I, Ruchika Gomes, a Christian by religion, wife of Mr. Richard Gomes, Resident of __xyz_,
do hereby solemnly affirm and certify that

1. I am bonafide applicant for engaging on contractual basis as xyz_ for a period of 5

years.
2. I further affirm that I am aware of terms and conditions of the offer of contractual
engagement with ______xyz__ and I agree to abide by all the terms and conditions of
said offer.
3. I am to state that all the credentials/ certificates and statements made by me while
applying for the contractual engagement of ___xyz_____ as are true and the
certificates/ testimonials submitted by me are bonafide.
4. I am fully aware that in future, if it is detected that the above details given by me are
found to be incorrect/false/fake, then I will be fully responsible for the same and the
__xyz______ will be free to take any action against me, both criminal and civil
proceedings, as deemed fit.
5. I am fully aware that the offer of engaging on contractual basis is only of r a period of
_____xyz___ and I will not claim any regular employment in ____xyz____ on any
grounds whatsoever.
6. I further affirm that on the above terms and conditions I am willing to accept the offer
of engagement on contractual basis with ___xyz_____ if found suitable otherwise.
7. That in event of any loss caused to the ____xyz____ during the course of any discharge
of official duties by me, I shall keep the ______xyz__ under indemnified all the losses
and claims.

Date: xxx

Deponent

Verification: –

I, Ruchika, hereby declare that the contents from Paras 1 to 7 are correct.

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~Memorial on Behalf of Respondent~