32nd ALL INDIA INTER-UNIVERSITY MOOT COURT COMPETITION, 2016

IN THE HON’BLE FAMILY COURT OF GUNTUR, ANDHRA PRADESH

TEAM CODE-

IN THE MATTER OF

MOHAN …PETITIONER

V.

FATIMA …DEFENDANT

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

32nd ALL INDIA INTER-UNIVERSITY MOOT COURT COMPETITION, 2016

TABLE OF CONTENTS

LIST OF ABBREVIATIONS - - - - - - - - II
INDEX OF AUTHORITIES - - - - - - - - III

STATEMENT OF JURISDICTION - - - - - - - VII

STATEMENT OF FACTS - - - - - - - - VIII

STATEMENT OF ISSUES - - - - - - - - IX

SUMMARY OF ARGUMENTS - - - - - - - - X

ARGUMENTS ADVANCED - - - - - - - 1

I. THE CONVERSION OF FATIMA TO HINDUISM IS VALID- - - - 1

II. THE CONVERSION OF MOHAN IS VALID- - - - - - 2

III. WHETHER RESTITUTION OF CONJUGAL RIGHTS BE GRANTED TO MOHAN - 5

PRAYER - - - - - - - - - - XI

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LIST OF ABBREVIATIONS

& And

¶ Paragraph

AIR All India Reporter

ALL Allahabad

Anr. Another

AP Andhra Pradesh

Art. Article

Cr. Criminal

Edn. Edition

Govt. Government

HMA Hindu Marriage Act,1955

Hon’ble Honourable

i.e. That is

No. Number

PC Privy Council

SC Schedule Caste

SC Supreme Court

SCC Supreme Court Cases

u/s Under Section

v. Versus

Vol. Volume

www World Wide Web

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INDEX OF AUTHORITIES

A. Table of Cases

S. No. Name of the Case Page No.

1. Baljit Singh v. Majit Kaur (1988) II DMC 551 5
2. C.M. Arumugam v. S. Rajgopal (1976) 1 SCC 863 3
3. David v. Sudha, AIR 1950 Mys 26 2
4. Durgaprasada Rao v. Sudarsanswami, ILR 1940 Mad 653 1
5. Fakirgunda v. Gangi (1898) 22 Bom 277 4
6. Gindan v. Barelal, AIR 1976 MP 83 5
7. Gurdial Kaur v. Karnail Singh, 1977 HLR 416 (P&H) 4
8. Jogindra Kaur v. Shivcharan Singh, AIR 1965 J&K 95 5
9. Jotiram v. Bai Divali, AIR 1939 Bom 154 4
10. Krishna v. Dilbagh Singh I (1996) DMC 601 (P&H) 6

11. Kumari Madhuri Patil v. Additional Commissioner, Tribal 3

Development 1994 AIR SCW 4116
12. M. Chandra v. M. Thangamuthu and Anr (2010) 9 SCC 712 2
13. Marthama v. Mannuswami, AIR 1951 Mad 888 2
14. Muthusami v. Masilamani (1909) 33 Mad 342 2
15. Mutyala v. Subba Laxmi AIR 1962 AP 311 4

16. N.S. Ziauddeen v. S. Ashok Kumar, Principal Sessions Judge, 3

Kilpauk, Chennai and three Ors. 2002(2) CTC 257
17. Nirmala Devi v. Pritam Singh (1988) 1 HLR 760 5

18. Noor Jahan Begum and Ors. v. State of of U.P. and Ors 2015 (3) 1
ALJ 322
19. Perumal Nadar (dead) by Legal Representative v. Ponnuswami 1
Nadar (minor) AIR 1971 SC 2352
20. Principle, Guntur Medical College v. Mohan Rao [1976] 3 SCR 3, 4
1046
21. Ramesh Kumar v. Sudesh, 1978 HLR 317 (Del.) 4

22. Ratansi D. Moraji v. Administrator General of Madras (1929) 2

ILR 52 Mad 160
23. Reade v. Krishna (1886) ILR 9 Mad 695 2
24. S. Swvigaradoss v. Zonal Manager, F.C.I [1996] 1SCR995 3

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25. Sapna Banerjee v. Rabindra Nath Banerjee, (2002) II DMC 371 5

(P&H)
26. Sarat Chandra Chakraborty v. Forman ILR 12 All 213 2
27. Sardar Mohd. v. Mst. Maryam AIR 1936 Lah 666 2
28. Saroj Rani vs. Sudarshan Kumar Chadha, 1984 AIR 1562 (SC) 5
29. Satwant Kaur v. Pyara Singh (1987) 2 HLR 618 (P&H) 6
30. Sayal v. Sayal, AIR 1968 P&H 489 5

31. Slevi M. Shyamala v. Tamil Nadu State Scrutiny Committee 3

(2009) 2 MLJ 278
32. Smt. Sarla Mudgal, President, Kalyani and Others v. UOI AIR 1
1995 SC 1531
33. Sukram v. Mishibai, AIR 1974 MP 144 5
34. Swvigaradoss v. Zonal Manager, F.C.I [1996] 1SCR995 3
35. Urmal Kanta v. Kishan Chand 1994 (2) HLR 515 (P&H) 6
36. Valasama Paul v. Cochil University [1996]1SCR128 3, 4
37. Venugopal Naidu v. Lakshmi Anmal, AIR 1936 Mad 288 6
38. Virmani v. Virmani, AIR 1943 Lah 51 1

B. Treatises, Books, Reports And Digests

1. A.G.Gupte, Hindu Law, Premier Publishers Delhi, Edn. 1st, 2003

2. Acharya Shuklendra, Hindu Law, Modern Law Publications, Reprint 2009

3. Anjani Kant, Women and the Law, A.P.H. Publishing Corporation, 2007

4. Asaf A.A.Fyzee, Outlines of Muhammadan Law, Oxford University Press Edn. 5th,
2008

5. Bhatnagar, Manual of marriage and Divorce, Unique Law Publisher, Edn, 4th, 2009

6. Dr. Paras Diwan, Family Law, Allahabad Law Agency, Edn. 9th, 2009

7. Dr.Paras Diwan, Law of Marriage and Divorce, Universal Law Publishing Co.
Edn. 5th, 2008

8. Flavia Agnes, Marriage Divorce and Metromonial Litigation, Oxford University

Press, Vol. 2, 2011

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9. Gurbax Singh, The Principle of Hindu Law, Vinod Publication, Edn. 2009

10. Halsbury’s Law of India, Family Law II, Lexis Nexis, Vol. 28, 2007

11. Kumud Desai, Indian Law of Marriage and Divorce, Wadhwa Publications, Edn 7th
2008
12. M.N. Srinivasan’s, Commentary on The Hindu Marriage Act, 1955, Delhi Law
House, Edn. 2nd

13. M.N. Das, Marriage and Divorce, Eastern Law House, Edn. 6th, 2002

14. Mahesh Dheer, Supreme Court Digest on Hindu Laws and Muslim Laws, Singla
Law Agency, 2007
15. Mayne’s, Treaties on Hindu law and Uses, Bharat Law House, Edn.17th, 2014

16. Mookerjee, Marriage Sepration and divorce, Kamal Law House, Edn 4th, 2008

17. S.A Desai, Mulla: Principle of Hindu Law, Lexis Nexis, Vol. 2, Edn.28th, 2007

18. S.P.Gupte, Hindu Law in British India, Premier Publishers Delhi, Edn. 2nd, 1947

19. Sir Dinshaw Fardunji Mulla, Principle of Mahomedan Law, Lexis Nexis, Edn. 20th,
2013

20. V.P. Bharatiya, Syed Khalid Rashid’s Muslim Law, Eastern Book Company
Lucknow Edn. 4th, 2004

C. Journals Referred

1. All India Reporter

4. Supreme Court Cases

3. Indian Law Reporter

2. Supreme Court Cases

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D. Database Referred

1. www.judis.nic.in

2. www.lexisnexis.com

3. www.manupatrafast.com

4. www.scconline.com

5. www.westlaw.com

D. Legal Dictionary
1. Aiyer P.R., Advanced Law Lexicon, (3rd ed., 2005)

2. Garner B.A., Black’s Law Dictionary, (9th ed., 2009)

3. Greenberg Daniel, Stroud’s Judicial Dictionary of Words and Phrases, (4th ed.),
Sweet and Maxwell, Vol. 4

4. Oxford Advanced Learners Dictionary, (7th ed., 2008)

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STATEMENT OF JURISDICTION

THE PETITIONER HAS APPROACHED THIS HON’BLE FAMILY COURT OF

GUNTUR, ANDHRA PRADESH UNDER SECTION 7 OF FAMILY COURTS ACT,
19841.

1
Section 7- Jurisdiction.-
(1) Subject to the other provisions of this Act, a Family Court shall- -(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. 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

For the sake of brevity and convenience of this Hon’ble Court the facts of the present case are
summarised as follows:

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 fall 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 are both 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 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 her to get out of this relationship as Mohan is not a trustworthy person. He
made her to 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, 1955 in Family Court of Guntur, Andhra Pradesh.

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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 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.

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STATEMENT OF ISSUES

I. WHETHER THE CONVERSION OF FATIMA TO HINDUISM IS VALID.

II. WHETHER THE CONVERSION OF MOHAN IS VALID
III. WHETHER THE RESTITUTION OF CONJUGAL RIGHTS CAN BE GRANTED TO
MOHAN.

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SUMMARY OF ARGUMENTS

I. THE CONVERSION OF FATIMA TO HINDUISM IS VALID.

It is a settled principle of law that to prove a conversion from one religion to another, two
elements need to be satisfied. First, there has to be a conversion and second, acceptance into
the community to which the person converted. In the instant case it is evident from the facts
that the Defendant converted into Hinduism on her own volition conversion was valid and
Defendant was Hindu at the time of the marriage.

II. THE CONVERSION OF MOHAN IS VALID.

On conversion to Hinduism, a person born to some other religion converts can become a
member of the caste to which his parents belonged, prior to their conversion, subject to the
acceptance of the other people of the community. It is pertinent to note that in the case of
Principle, Guntur Medical College v. Mohan Rao therein the respondent got converted to
Hinduism to take admission in the college and the Apex Court held it to valid. Thus,
following the decisions it can be said that the conversion of Mohan is valid and he at the time
of the marriage was a Hindu.

III. WHETHER THE RESTITUTION OF CONJUGAL RIGHTS CAN BE GRANTED TO MOHAN.

If the marriage is valid according to law and provisions of Section 5, for the validity of the
marriage, recognition by the community or the parents is not necessary, as marriage being the
personal rights of the spouses. If the marriage was according to Hindu Law, it would be
presumed that it took place according to an approved form. The guardianship for the purpose
of marriage is not so much a right as a duty and the consent of the guardian, was not a
condition precedent to the validity of the marriage. For obtaining the remedy of restitution it
would not be necessary that the parties should have at some time cohabited with each other
and then separated. In the instant matter, petitioners’ right of invoking the provision of
restitution of conjugal rights would stand valid.

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ARGUMENTS ADVANCED

I. THE CONVERSION OF FATIMA TO HINDUISM IS VALID.

1. Allahabad High Court in the case of Noor Jahan Begum and Ors. v. State of of U.P.2
observed that, conversion to another religion basically requires change of faith and
belief of personal relations of a major individual of sound mind by his free will.
Further, in Perumal Nadar (dead) by Legal Representative v. Ponnuswami Nadar
(minor)3, it was held by the Apex Court as under,
"A person may be a Hindu by birth or by conversion. A mere 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."
2. In the instant case, it is evident from the facts that the Mohan (hereinafter referred to
as 'Petitioner') and Fatima (hereinafter referred to as 'Defendant') were in love and for
the purpose of their marriage Defendant decided to get converted into Hinduism.
Constitution of India provides freedom to every person to profess and practices any
religion.4 This includes the right to relinquish his or her faith and embrace another
religion.5 Supreme Court in the case of Smt. Sarla Mudgal, President, Kalyani and
Others v. UOI6 held that conversion is an integral part of the freedom of religion
guaranteed under Article-25 of Constitution of India.
3. In every case of conversion or reconversion to Hinduism, performance of expiatory
ceremonies is not essential.7 Event there is no requirement to observe any ceremony,
in the instant case, it is evident from the facts of the case that Fatima has undergone
suddhi ceremony8 and thus her conversion is valid in the eyes of law.

2
2015 (3) ALJ 322.
3
AIR 1971 SC 2352.
4
Article-25 to 28, Constitution of India.
5
Kumud Desai, Indian Law of Marriage & Divorce, Ed. 7, 2008, Pg- 739.
6
AIR 1995 SC 1531.
7
Durgaprasada Rao v. Sudarsanswami, ILR 1940 Mad 653, Virmani v. Virmani, AIR 1943 Lah 51.
8
Para-10, Moot Proposition.

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4. In the case Ratansi D. Moraji v. Administrator General of Madras9, conversion of a

European to Hinduism was held valid. Also, in the case of Muthusami v.
Masilamani10 formal conversion of an Indian Christian to Hinduism was held valid.
Following the decisions discussed above it can be said that, conversion of Defendant
was valid in the eyes of law as in the first instance she consented for the marriage,
provided the marriage was performed with ceremonies and ritual thereby validating
the sanctity of such marriage.
5. In a recent case of M. Chandra v. M. Thangamuthu and Anr.11 the Supreme Court laid
down the following test to prove conversion, whereby it is a settled principle of law
that to prove a conversion from one religion to another, two elements need to be
satisfied. First, there has to be a conversion and second, acceptance into the
community to which the person converted.
6. Applying the test laid down in the above discussed case it is seen that there is a formal
conversion in the instant case as the Defendant has undergone the suddhi ceremony to
embrace Hinduism and there is no evidence to show that she was not accepted by the
community and thus it can be said that the conversion is valid. The mere conversion
into Hinduism for the purpose of marriage to be invalid, has not been observed in any
judicial pronouncements, provided the conversion took place in precise manner. In the
instant case, the defendant has undergone the rituals and ceremonies of Suddhi
requisite for such conversion, then proceeded for marriage which was not opposed by
community, thus fulfilling the basic test as laid down in the above mentioned case.
7. In the case of Sardar Mohd. v. Mst. Maryam12 it was held that as long as the fact of
conversion is established the motive behind it is immaterial. Thus, in the instant case
court is not justified to go into the question of motive behind the conversion as the
fact of conversion is not dispute. Allahabad High Court in the case of Sarat Chandra
Chakraborty v. Forman and Anr.13 held the conversion of a minor to be valid. Also, in
the case of Reade v. Krishna14, Madras High Court reiterated the same as to not
inquiring into the motive for such conversion, for the reasons that the conversion has

9
(1929) ILR 52 Mad 160.
10
(1909) 33 Mad 342.
11
(2010) 9 SCC 712.
12
AIR 1936 Lah 666; David v. Sudha, AIR 1950 Mys 26; Marthama v. Mannuswami, AIR 1951 Mad 888.
13
ILR 12 All 213.
14
(1886) ILR 9 Mad 695.

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proceeded with the relevant considerations of fulfilling the ceremonial requisites

thereby remitting such motive to be immaterial.
8. Thereby, in the instant case it is evident from the facts that the Defendant converted
into Hinduism on her own volition and from nowhere it can be inferred that there was
any resistance and in the light of the cases discussed it can be said that the conversion
was valid and thus Defendant was Hindu at the time of the marriage.

II. THE CONVERSION OF MOHAN IS VALID.

9. It is submitted that, petitioner was born to a converted parents. His parents was
originally Hindu before their conversion to Islam. The Constitutional Bench of the
Hon'ble Supreme Court in Principle, Guntur Medical College v. Mohan Rao15, has
laid down, that a person whose parents or grandparents, originally belonged to a
scheduled caste before their conversion to some other religion can, on re-
conversion to Hinduism, be regarded as a member of the scheduled caste, only if he is
accepted as a member of that caste by the other members of the caste. Therefore, it is
clear that on conversion to Hinduism, a person born to some other religion converts
can become a member of the caste to which his parents belonged, prior to
their conversion, subject to the acceptance of the other people of the community. This
principle was reiterated in the case of Slevi M. Shyamala v. Tamil Nadu State Scrutiny
Committee16 wherein the court propounded that though the relevant consideration has
been provided to the acceptance of the community for such conversion but the person
has liberty to re-convert in the caste to which his parents belonged.
10. It is a settled law through various decisions17 that a person who was born to converted
parents, originally belonged to Hindu religion and of Scheduled Caste, is entitled to
claim the status of Scheduled Caste, after his re-conversion to Hinduism and having
been accepted by the said community people.
11. The question of conversion was answered by the court in the case of C.M. Arumugam
v. S. Rajgopal18, wherein a person belonged to Adi Dravida caste before his
conversion to Christianity, could, on reconversion to Hinduism once again become a
member of the Adi Dravida caste. Supreme Court, after examining the question on
15
[1976] 3 SCR 1046.
16
(2009) 2 MLJ 278, see also N.S. Ziauddeen v. S. Ashok Kumar, Principal Sessions Judge, Kilpauk, Chennai
and Ors. 2002(2) CTC 257.
17
Kumari Madhuri Patil v. Additional Commissioner, Tribal Development 1994 AIR SCW 4116; Valasama
Paul v. Cochil University [1996]1SCR128; S. Swvigaradoss v. Zonal Manager, F.C.I [1996] 1SCR995.
18
(1976) 1 SCC 863.

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principle and referring to the decided cases, pointed out that the consistent view taken
in this country since 1886 was that on reconversion to Hinduism, a person can once
again become a member of caste in which he was born and to which he belonged
before conversion to another religion, if the members of the caste accept him as a
member. Supreme Court opined that there was no reason, either on principle or on
authority, which should compel it to disregard this view which has prevailed for
almost a century and lay down a different rule on the subject and concluded that on
reconversion to Hinduism.
12. The reasoning on which this decision proceeded is equally applicable in the instant
case where the parents of a person are converted from Hinduism to Islam and he is
born after their conversion and on his subsequently embracing Hinduism. From the
above discussed cases, it can be said that the conversion of Petitioner is valid in the
eyes of law as it is only subjected to the acceptance to the society. In the instant case
there is no sign of any opposition from the society and thus conversion is valid.
13. It is pertinent to note that in the case of Principle, Guntur Medical College v. Mohan
Rao,19 which has the similar fact, therein the respondent got converted to Hinduism to
take admission in the college and the Apex Court held it to valid. Thus, following the
decisions it can be said that the conversion of Mohan is valid and he at the time of the
marriage was a Hindu.

III. WHETHER THE RESTITUTION OF CONJUGAL RIGHTS CAN BE GRANTED TO MOHAN.

14. If the marriage is valid according to law and provisions of Section 5, for the validity
of the marriage, recognition by the community or the parents is not necessary, as
marriage being the personal rights of the spouses.20 The marriage between Mohan and
Fatima was valid in the instant matter, as does not contravenes the provisions of
void21 and voidable marriage22, for consent has been provided wilfully wherein parties
agreed for such arrangement. If the marriage was according to Hindu Law, it would
be presumed that it took place according to an approved form. 23 Further, where it is

19
Supra Note-1.
20
Valsamma Paul vs. Cochin University, 1996 AIR 1011 (SC): 1996 (3) SCC 545.
21
Sec. - 11, Hindu Marriage Act, 1955.
22
Sec. - 12, Hindu Marriage Act, 1955.
23
Jotiram v. Bai Divali, AIR 1939 Bom 154.

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proved that a marriage was performed in fact, the court will presume that it is valid in
law.24
15. The explanation under Section 9 places the burden of proof of establishing reasonable
excuse for withdrawal from the society on the spouse which has withdrawn from the
society of the other.25 Therefore, where the wife withdraws from the society of the
Petitioner, burden lies on her to prove reasonable excuse for withdrawal from the
society of the Petitioner.26 The court in the case of Sapna Banerjee v. Rabindra Nath
Banerjee27 opined that where wife abandoning her Petitioner for without any
reasonable cause, then the Petitioner is entitled to a decree for restitution of conjugal
rights.
16. Section 9 of the Hindu Marriage Act, 1955 which provides a remedy of restitution of
conjugal rights for a spouse, cannot be said to be violative of fundamental rights 28, if
the purpose of the decree for restitution of conjugal rights in the Act is understood in
its proper perspective.29 The petitioner must show that there is a bona fide desire to
resume the matrimonial cohabitation and to render the rights and duties of
matrimonial life.30 The Petitioner has filed for restitution, as Defendant without any
reasonable grounds has left the society under the undue influence of her father,
thereby entitling the other party for such right as having bona-fide desire to restore the
marriage.
17. Further, it is pertinent to note that marriage in contravention of Section 5 (iii) is not an
offence under Section 11 of the Act. It is valid enforceable and cognizable by Court of
law.31 Where it was contended that the marriage is not valid as it contravened section
5(iii) of the Act it was held that such a marriage is neither void nor voidable and
hence is no ground to refuse the relief under this section.32 The contention of
Defendant being minor would not be substantiated as the provisions governing the
valid age for marriage in Hindu Marriage Act is not an offence under Section 11 as
construed under the doctrine of factum valet.

24
Fakirgunda v. Gangi (1898) 22 Bom 277; Mutyala v. Subba Laxmi AIR 1962 AP 311.
25
Ramesh Kumar v. Sudesh, 1978 HLR 317 (Del.).
26
Gurdial Kaur v. Karnail Singh, 1977 HLR 416 (P&H).
27
AIR 2002 Jhar 111; see also: Baljit Singh v. Majit Kaur (1988) II DMC 551: 1990 (1) HLR 65; Nirmala Devi
v. Pritam Singh (1988) 1 HLR 760.
28
Article 14 and Article 21 of the Constitution.
29
Saroj Rani vs. Sudarshan Kumar Chadha, 1984 AIR 1562 (SC): 1984 Marr. LJ 499: 1984(2) DMC 325:
1984(4) SCC 90: 1984 HLR 713: 1985(1) SCR 303.
30
Sayal v. Sayal, AIR 1968 P&H 489; Jogindra Kaur v. Shivcharan Singh, AIR 1965 J&K 95.
31
Gindan v. Barelal, AIR 1976 MP 83.
32
Sukram v. Mishibai, AIR 1974 MP 144.

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18. The guardianship for the purpose of marriage is not so much a right as a duty and the
consent of the guardian, was not a condition precedent to the validity of the marriage.
A marriage duly solemnised and otherwise valid under the Act was not rendered
invalid nor voidable because it was brought about without the consent of the guardian
in marriage.33 The marriage solemnized without the prior consent of the father of the
respondent would thereby not render it to be voidable, as consent is not a condition
precedent to the validity of such marriages.
19. For obtaining the remedy of restitution it would not be necessary that the parties
should have at some time cohabited with each other and then separated.34 If the wife
withdraws from the society of her Petitioner and does not return in spite of repeated
requests by him the withdrawal is without any reasonable cause.35 Thereby, in the
instant matter, petitioners’ right of invoking the provision of restitution of conjugal
rights would stand valid as Defendant failed to provide any reasonable ground for
such withdrawal.

33
S.A. Desai, Mulla: Hindu Law, Lexis Nexis, Edn. 20th, Vol.- II, Pg. 56.
34
Venugopal Naidu v. Lakshmi Anmal, AIR 1936 Mad 288.
35
Satwant Kaur v. Pyara Singh (1987) 2 HLR 618 (P&H); Urmal Kanta v. Kishan Chand 1994 (2) HLR 515
(P&H); Krishna v. Dilbagh Singh I (1996) DMC 601 (P&H).

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PRAYER

Wherefore in the light of facts presented, issues raised, arguments advanced and
authorities cited, the Counsels on behalf of the Petitioner humbly pray before this Hon’ble
Court that it may be pleased to adjudge and declare that:

1. Decree passed in favour of Mohan for restitution of conjugal rights.

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

Sd/- _______________________

Counsels for the Petitioner

-MEMORANDUM FOR THE PETITIONER-

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