CLINICALCOURSE -IV(TA6D)

BEFORE THE HON'BLE APEX COURT OF VINATHDESH

CRIMINAL APPEAL /2024

JURISDICTION UNDER ARTICLE 134 OF THE CONSTITUTION

Mr.BHUSHAN AND ORS .................................................................................APPELLANT

VERSUS

STATE OF VINATHDESH..............................................................................RESPONDENT

UPON SUBMISSION TO THE HON'BLE CHIEF JUSTICE OF ASGARD

ANDCOMPANIONJUSTICESOFTHEHON'BLESUPREMECOURTOFASGAR
D

MEMORANDUMON BEHALF OF THE APPELLANT

NAME: SANTHOSHKUMAR S

REGISTER NO: 321D0886

CLASS:IIILLB,

SUBJECT:CLINICALCOURSE-IV

SUBJECTCODE:TA6D

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 TABLE OF CONTENTS

 LISTOFABBREVIATIONS …4

 ARTICLES …7

 CASE LAWS …8

 STATEMENTOFJURISDICTION …9

 STATEMENTOFTHE FACTS …10

 SUMMARYOFARGUMENT ...13

 ARGUMENTSADVANCED …15

 PRAYER …23

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 Before The Hon’ble Court Of Vinathdesh

UnderArticle134 of The Constitution Of India

IN THE MATTER OF

Mr.BHUSHAN AND ORS.....................................................PETITIONER

Vs

STATE OF VINATHDESH ….....................................................RESPONDENT

MEMORIAL FOR PETITIONER

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 LIST OFABBREVIATIONS

AIR - AllIndiaReporter
& - And
Anr. - Another
Art. - Article

COI - ConstitutionofIndia
TheUniversalDeclarationof
UDHR Human- rights

SLP - Special Leave

LTD - PetitionLimited
HC - HighCourt
O.S. - Original
Ors. - SuitOthers
SupremeCourt
SC -

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 CASELAWS

 AISHA KUMARI V/S. STATE OF NCT OF DELHI & ORS.

 ASSOCIATION FOR SOCIAL JUSTICE AND RESEARCH V. UNION OF INDIA &

ORS., 2010, (2010) SCC Online Del. 1964

 AYYAH PILLI V. MANIK PILLAI (1965), 1 Madras Law Journal 172

 BUDHAN V. MAMRAJ, 1970 PLR 102

 JWALA PRASAD V. EMPEROR,82 Ind Cas 139

 MAMINDLA SAILOO V/S MAMINDLA PASMA & ANOTHER,

MANU/AP/1347/2006

 NEETU SINGH VS. STATE & ORS., 77(1999)DLT601

 P.A. SARAMMA V. G. GANAPATULU, AIR 1975 AP 193

 PARSARAM V. SMT. NARANI DEVI AIR, 1972 All 357

 PRADEEP TOMAR AND ANOTHER V. STATE OF UP AND ANOTHER,

MANU/UP/0092/2021

 RAVI KUMAR V. THE STATE AND ANR., MANU/SC/1480/2018

 YUNUSBHAI USMANBHAI SHAIKH V/S STATE OF GUJARAT,

MANU/GJ/0876/2015

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 STATEMENTOFJURISDICTION

The Appellant has filed this appeal under article 134 of the Constitution of India as High court of

Haflong state has dismissed their plea. The Respondent maintains that no violation of rights has

taken place after the amendment. Therefore, the Hon'ble court need not entertain its jurisdiction in

this appeal.

Article 134 of Indian Constitution which states;

(1) An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a

criminal proceeding of a High Court in the territory of India if the High Court has on appeal

reversed an order of acquittal of an accused person and sentenced him to death; or has withdrawn

for trial before itself any case from any court subordinate to its authority and has in such trial

convicted the accused person and sentenced him to death; or

(c) certifies under Article 134A that the case is a fit one for appeal to the Supreme Court:

Provided that an appeal under sub clause (c) shall lie subject to such provisions as may be made in

that behalf under clause (1) of Article 145 and to such conditions as the High Court may establish

or require

(2) Parliament may by law confer on the Supreme Court any further powers to entertain and hear

appeals from any judgment, final order or sentence in a criminal proceeding of a High Court in the

territory of India subject to such conditions and limitations as may be specified in such law.

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 STATEMENTOFTHEFACTS

1.Bharat was a small farmer earning his income from agricultural land of 4

acres and his small grocery shop in the same village. He along with his wife

Bhuvana and three girl- children Rekha, Reshmi, and Rasmi aged about 14

years, 11 years, and 9 years respectively, lived in the village of Zanskar in

Haflong State, VinathDesh.

2. Bharat and Bhuvana are very religious and do not miss any opportunity to

visit temples and pilgrimage. One day upon receiving information from the

local people that a five- day tour of pilgrimage is organized by the local people

for elders, they immediately gave their consent to go on a pilgrimage in a bus

arranged by them. Bhuvana left her three children at her brother, Bhusan's place

who lived in the same village. Bhusan was married to Bhavishya, ten years ago

and they are the maternal uncle and aunt of Bhuvana's children. They are

childless.

3. The entire group of pilgrims while returning, unfortunately, met with an

accident and even Bharath and Bhuvana also suffered severe injuries which

were very grevious and were admitted to ICU. The treatment continued for one

month in ICU but eventually, they succumbed to their injuries. 4. During this

period of hospitalization, all the money which was earned and saved by Bharat

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was completely exhausted for their treatment. Even Bhusan also spent the

money available with him for their recovery, but could not save them.

5. Bhusan, brother of Bhuvana being the lone relative of his nieces has taken the

responsibility of the parenthood and upbringing of these three children after the

death of their parents.

6. Bhusan was a small farmer and his source of income is mainly from

agriculture. Bhusan is a well-known person and popular for helping people in

need in the village and has a very good reputation but since he is now into tough

times and is unable to meet the regular expenses for maintaining the house, it

has led to his ill health. Of late, Bhusan's wife Bhavishya was also diagnosed

with chronic illness and had to get treated and the treatment continued for a

longer time coupled with huge medical expenses which resulted in more

financial stress on him. Moreover, Bhusan does not have any other alternate

source of income.

7. Rekha, who is 19 years old now, pursuing her graduation, was helping her

sisters and simultaneously was doing a part-time job to support her uncle and

the family. Society criticized Bhusan for his inefficiency to earn and run the

family. Moreover, Rekha is of marriageable age as per the societal standard and

instead of getting her married, he was taking a risk by sending her to earn.

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Rekha also felt humiliated from this view of the society and realized that it may

not be good and proper for her and her uncle's reputation to remain unmarried,

so she decided to marry.

8. Bhusan being the maternal uncle, having good faith to give a prosperous

future and security to Rekha proposed her to get married into a rich family of

Rehan, who is 23 years old, well settled, and is a native of Nubra town. As she

was pursuing her graduation and exams were scheduled, marriage dates were

postponed from March to June 2018.

9. Bhusan was promised by Rehan's Family to allow Rekha for her further

education and also to extend cooperation to her if she is willing to get better

employment. As Bhusan had a lot of love and affection towards his niece and

was under the compelling economic situation, he agreed for the marriage. Rehan

has shown his full faith and willingness to marry Rekha and support Bhusan in

all aspects. So, he has proposed to his niece Rekha to get her married into a

family which is well settled and has ethical values for the protection of her

interests.

10. In the meanwhile, the Child Marriage (Prohibition) Act, 2006 has been

amended where the marriageable age of girls was increased from 18 to 21 years.

The Child Marriage (Prohibition) Act, 2006 has been enacted with the objective

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that unless women progress on all fronts including their physical, mental and

reproductive health, the nation cannot claim progress. The other objective is to

have a check on typical paternalism and to provide access to opportunities to

girls concerning education, employment, health etc.

11. The Constitution of VinathDesh guarantees gender equality as part of the

fundamental rights and also guarantees the prohibition of discrimination on the

grounds of sex. Hence the law was amended in 2018 and the objective of the

2018 Amendment is to give equality of rights to marriage to all irrespective of

gender difference. This amendment also aimed at lowering the maternal

mortality rate by improving the nutritional level of a prospective mother. It is

also important to bring down the incidence of teenage pregnancies, which are

not only harmful to women's overall health but also result in more miscarriages

and stillbirths. Further, it aims to lessen the financial burden of

parents/guardians by providing a scope of employment to have financial

security for the girl child.

12. While this being so, a social worker of Zanskar informed regarding the

marriage of Rekha to an NGO named Prakriti which is an organization

concerned with the concept of "Beti Suraksha". The NGO Prakriti is a non-

profit organization working exclusively for the welfare of girl children

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(Daughter).

13. The NGO Prakriti, accordingly informed the said matter to the Child

Marriage Prohibition Officers (CMPO) and upon receiving this information, the

CMPO has approached the Judicial Magistrate of the First Class (JMFC) and

the JMFC has issued a notice to prevent the solemnization of child marriage

under the Child Marriage(Prohibition) Act, 2006.

14. Despite the notice being served to Bhusan and Rehan, they continued to

make necessary arrangements to solemnize the marriage between Rehan and

Rekha. On receiving the said information of preparation of marriage the JMFC

directed to arrest Rehan and Bhusan.

15. Aggrieved by the action of the police and recently amended law, they have

approached the High Court of Haflong State. However, the High Court of

Haflong State hasdismissed their plea by stating the action of the police is legal

and the amendment is not violating any rights of them.

16. Aggrieved by the judgment of the High Court of Haflong State, Bhusan and

Rehan have approached the Hon'ble Apex Court of VinathDesh.

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 STATE OF ISSUES

ISSUE I: WHETHER THE APPEAL PUT FORTH BY THE

APPELLANT IS ADMISSIBLE IN THE COURT OF LAW?

ISSUE II: WITH REFERENCE TO PROHIBITION OF CHILD

MARRIAGE ACT, 2006 IS THIS MARRIAGE LEGITIMATE?

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 STATEMENT OF ARGUMENTS

1. WHETHER THE APPEAL PUT FORTH BY THE APPELLANT IS

ADMISSIBLE IN THE COURT OF LAW?

The appeal put forth by the Appellant is admissible in the court of law as child

marriage is not against the law but also not a violation of the child's human rights,

Because of Rekha was attained age of 19 and with her free consent only, So they were

preparing to solemnize the marriage. Hence the Judicial Magistrate Officer directed to

despite the notice being served to them and arrest them under Sec. 16(3)(a),They have

right to appeal for their Fundamental rights were Violating.

2. WITH REFERENCE TO PROHIBITION OF CHILD MARRIAGE ACT,

2006 IS THIS MARRIAGE LEGITIMATE?

The marriage is legitimate under Prohibition of Child Marriage Act, 2006. In the

present case after the amendment of the PCMA the marriageable age was increased for girls

hence rekha being a 19-year-old girl,But the minimum age of marriage at 21 years is higher

than the minimum age of majority (18 years). The Supreme Court has ruled that marriage

between adults is a fundamental right.

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 ARGUMENTSADVANCED

1.WHETHER THE APPEAL PUT FORTH BY THE APPELLANT IS ADMISSIBLE

IN THE COURT OF LAW?

Before this Hon'ble Apex Court of VinathDesh, it is humbly contended that the appeal put
forth by the appellant (Bhusan & Rehan) is not admissible in the court of law and the
mentioned court has the jurisdiction over the case. It is barred by the limitation.

From the facts of the present case, it is well established that the appellant were
solemnizing the marriage of a major girl (Rekha). She is the niece of the appellant, aged
19.

The Child Marriage (Prohibition) Act, 2006 has been amended where the marriageable age
of girls was increased from 18 to 21 years. This actively illustrates the fact that Appellant's
niece Rekha cannot marry before the age of 21 years,It was violating the Fundamental
rights

Acc. To the Sec. 13(1) of the Prohibition of child marriage Act, 2006. Not with standing
anything to the contrary contained in this Act, if, on an application of the Child Marriage
Prohibition Officer or on receipt of information through a complaint or otherwise from any
person, a Judicial Magistrate of the first class or a Metropolitan Magistrate is satisfied that
a child marriage in contravention of this Act has been arranged or is about to be
solemnized, such Magistrate shall issue an injunction against any person including a
member of an organization or an association of persons prohibiting such marriage.

In addition to the above fact, CMPO after being informed regarding the marriage by an
NGO called Prakriti which exclusively works for the welfare of girl child approached
JMFC. JMFC after receiving this information issued notice to prevent the solemnization of
child marriage under the Child Marriage (Prohibition) Act, 2006. Regardless of the notice
being served, the Appellant continued to make necessary arrangements for the wedding.
A recent judgment in Ravi Kumar v. The State and Anr., the Delhi High Court reiterated
that marriages solemnized in contravention of age prescribed under Section 5(iii) of the
Hindu Marriage Act, 1965 are void. The court held that the judgment was based on public
policy and the Legislature was conscious of the fact that if marriages, performed in
contravention of the age restriction, lead to serious consequences and exploitation of
women.

Similarly In the present case, Rekha is a minor and there is a contravention of age
prescribed under

Section 5(iii) of Hindu Marriage Act, 1955, leading to a void marriage. Thus, this

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marriage can't be solemnized.

In accordance with, Sec. 16(3)(a) of the PCMA, it shall be the duty of the Child Marriage
Prohibition

Officer-

(a) to prevent solemnization of child marriages by taking such action as he may deem fit;

Further in the case of Ayyah Pilli V. Manik Pillai and Jwala Prasad V. Emperor³ case,
Madras and Allahabad HC held that magistrate officer is Legally bound to make an
inquiry about the age of the parties and also take necessary actions in case of any
violation.

However in the present case, Judicial Magistrate Officer upon receiving the information of
marriage of a minor girl, the JMFC issued a notice to prevent the solemnization of child
marriage under the PCMA.. Despite the notice being served to the appellant, they
continued to make necessary arrangements to solemnize the marriage. Thus, violating the
law.

In a conference organized by Law commission, the commission stated that child marriage
is not only against the law but also a violation of the child's human rights. Also, as child
marriages are not automatically void and require divorce to terminate, it is recommended
that there should be child marriage dissolution law.

As per Sec. 11(1) of the Act, Where a child contracts a child marriage, any person having
charge of the child, whether as parent or guardian or any other person or in any other
capacity, lawful or unlawful, including any member of an organization or association of
persons who does any act to promote the marriage or permits it to be solemnized, or
negligently fails to prevent it from being solemnized, including attending or participating
in a child marriage, shall be punishable with rigorous imprisonment which may extend to
two years and shall also be liable to fine which may extend up to one lakh rupees.
As a result, JMFC directed to arrest the appellant in order to prevent the solemnization of
child marriage.

Subsequently, in Parsaram V. Smt. Narani Devi, The Hon'ble SC held that major members
of the family be punished for their act in making arrangements for celebration of child
marriage. After the Prohibition of Child Marriage Act, 2006, the child marriage has been
prohibited and also made punishable. Now, the father or the guardian or as the case may
be, do not have any right to give their minor children in marriage.

Also, in the dictum of the case Neetu Singh V. The state and ors. The HC of Delhi held
that marriage of minor is neither void nor voidable but it is punishable

It is pertinent to note that similarly in the present case, the appellant were solemnizing the
marriage of a minor girl (Rekha). Thus they are liable for punishment under Sec. 11 of

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PCMA.

That, Further in the case of Association for social justice and research V. Union of India &
ors.", 2010 recognized child marriage as a violation of human rights.

Thus by stating the above mentioned cases and references, it is humbly submitted before
this Hon'ble SC that the Appeal put forth by the appellant is not admissible in the court of
law. Considering that the appellant were well aware of the fact that PCMA has been
amended Where the marriageable age of girls has been increased from 18 to 21 years, The
objective of the 2018 amendment is to give equality of rights and to have a check on
typical paternalism. Still the appellant solemnized the marriage of a minor girl (Rekha).
When CMPO were informed about the marriage then, JMFC issued a notice to the
appellant to prevent the solemnization of child marriage. Despite of the notice being

served, the appellant continued to make necessary arrangements of the wedding. So,
JMFC directed to arrest the appellant.

2. WITH REFERENCE TO PROHIBITION OF CHILD MARRIAGE ACT,

2006 IS THIS MARRIAGE LEGITIMATE?

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Before this Hon'ble Apex Court of VinathDesh, it is humbly contended that the marriage is not legitimate

under Prohibition of Child marriage Act, 2006 and the mentioned court has the jurisdiction over the case. It

is not barred by the limitation.

In accordance with sec-14 of the Prohibition of Child marriage Act, 2006, Any child marriage solemnized

in contravention of an injunction order issued under section 13, whether interim or final, shall be void ab

initio.

Subsequently, In P.A. Saramma v. G. Ganapatulu (1975), The High Court of Andhra Pradesh explicitly

ruled that a child marriage is void ab initio. Also, the Division Bench of this High Court consisting of Obul

Reddi, C.J. and Madhusudan Rao, J., held that a Marriage between the bridegroom and the bride, if their

ages do not satisfy the requirements of clause (iii) of section 5 of H.M.A., cannot be solemnized as it is

prohibited under clause (iii) of section 5, and that it is not necessary that, in the event of contravention of

clause (iii) of Section 5, and that such a marriage is void ab initio and is no marriage in the eye of law.

Similarly, in the present matter, the marriage solemnized was a child marriage as after the amendment of

the Prohibition of Child marriage Act, 2006 the marriageable age of girls was increased from 18 to 21 yrs.

Rekha being a 19-year-old girl is a minor. Thus, acc. To above judgement of the HC, child marriage is void

ab initio.

Equivalently, In Aisha Kumari V/s. State of NCT of Delhi & Ors. Delhi High Court seeks Central govt's

response on plea to declare all child marriages void ab initio. Also, that Section 3(1) of Prohibition of

Child Marriage Act which provides that a child marriage is voidable should be declared unconstitutional.

In consonance with Sec-10 of the act, Whoever performs, conducts, directs or abets any child marriage

shall be punishable with rigorous imprisonment which may extend to two years and shall be liable to fine

which may extend to one lakh rupees unless he proves that he had reasons to believe that the marriage was

not a child marriage.

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In Yunusbhai Usmanbhai Shaikh v/s State of Gujarat, in this case court held that solemnizing of child

marriage is punishable under Section 10 of Prohibition of Child marriage Act, 2006. Also, the consent of a

minor is hardly of any consequence acc. to the act. Further HC held that Prohibition of Child marriage Act,

2006 is secular act and they apply to all communities including the Muslim laws and Hindu laws. It over

rides the personal law. However, high court held that the act is enacted to prevent the child marriages

which is still prevalent in this country, and most common in Muslim community.

Furthermore, The Punjab and Haryana High Court has made it clear that a minor girl's consent was

insignificant in child marriage cases and the court may exercise its jurisdiction to send her to an

appropriate "home" till she became a major.

In a significant judgment Pradeep Tomar and Another V. State of UP and Another, the Allahabad High

Court has recently righteously and remarkably held that a minor girl cannot be allowed to live in a

matrimonial relationship with a man she claims to be her husband even if she had left Her home of her own

accord and married the man out of her own free will. The Single Judge Bench of Justice JJ Munir ruled.

The Bench specifically stated that So long as the prosecutrix is a minor she cannot be permitted to

accompany the accused Pintoo, whom she claims to have married.

As a matter of fact of our present case it is highly regarded that the consent of Rekha is insignificant as she

is a minor and being a minor she is not allowed to be in a matrimonial relationship with a man until she

became a major.

Further Acc. to Sec- 11 of the PCMA, (1) Where a child contracts a child marriage, any person having

charge of the child, whether as parent or guardian or any other person or in any other capacity, lawful or

unlawful, including any member of an organization or association of persons who does any act to promote

the marriage or permits it to be solemnized, or negligently fails to prevent it from being solemnized,

including attending or participating in a child marriage, shall be punishable with rigorous imprisonment

which may extend to two years and shall also be liable to fine which may extend up to one lakh rupees:

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Provided that no woman shall be punishable with imprisonment.

(2) For the purposes of this section, it shall be presumed, unless and until the contrary is proved, that where

a minor child has contracted a marriage, the person having charge of such minor child has negligently

failed to prevent the marriage from being solemnized.

In the dictum of the case Mamindla Sailoo v/s Mamindla Padma & Another¹¹, Division bench of the court

held that solemnization of child marriage is punishable under the section 11 of PCMA. Also at the time of

the marriage the spouses were minor and it is neither void nor voidable, and also not a valid marriage.

Section 11 renders child marriage solemnized in contravention of conditions (1), (3), (4) and (5) of Section

- 5 under Hindu Marriage Act. Violation or breach of any of them would be treated as a breach of pre-

requisite for a valid marriage rendering it void.

Similarly, in the present case Rekha is considered a minor under the amendment act of PCMA i.e. the

marriageable age of girls was increased from 18 to 21 yrs. So the marriage which was being solemnized is

considered invalid and the persons responsible for the solemnization of child marriage should be held

liable for the punishment under Sec-11 of PCMA.

Subsequently in Budhan v. Mamraj 12, the court held that a marriage may not be valid if performed in

contravention of age requirement.

Thus by stating the above mentioned cases and references it is humbly submitted before the Hon'ble SC

that the marriage is not legitimate. Delhi High court in Association for Social Justice & Research Union of

India & others, has held that child marriage is a grave form of human rights violator. If the marriage is

solemnized then, the Human Rights such as right to education, right to development, right to health, right

to employment, right to a dignified life, right to participation and well-being and personality development

will be deprived to the girl child. Thus, the objective of the 2018 Amendment is to give equality of rights

to marriage to all irrespective of gender difference. This amendment also aimed at lowering the maternal

mortality rate by improving the nutritional level of a prospective mother. It is also important to bring down
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the incidence of teenage pregnancies, which are not only harmful to women's overall health but also result

in more miscarriages and stillbirths

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 PRAYER

WHEREFORE, IN THE LIGHT OF ISSUES RAISED, ARGUMENTS ADVANCED AND

AUTHORITIES CITED, IT IS HUMBLY PRAYED THAT THIS HON'BLE COURT MAY BE

PLEASED TO HOLD, DIRECT AND DECLARE:

1. That the appeal, put forth by the appellant in the Hon'ble court of law, must be quashed since

there was a violation of human rights.

2. That the appellant shall be punished for the solemnizing of child marriage.

And/or pass any other order as the Hon'ble Court may deem fit in terms of equity, justice and good

conscience.

And for this act of kindness the Respondent shall forever be duty bound.

Date:

Place: Vinathdesh

S/d-

Counsel for the Petitioner

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