Petitioner Format Final-1 PDF

Team Code:
M.K.E.S 3rdNATIONAL MOOT COURT COMPETITION, 2018
BEFORE THE SESSIONS COURT, DELHI
Petition filed under Article 26 of The Code of Criminal Procedure, 1974
In the matter of,
Mr. Jitendra Sharma……….Appellant
V.
Srivastav Family……….Respondent
Compilation On Behalf Of the PETITIONER

M.K.E.S 3rd National Moot Court Competition 2018
TABLE OF CONTENTS
1. List of Abbreviations
2. Index of Authorities
3. Statement of Jurisdiction
4. Summary of Facts
5. Issues Involved
6. Summary of Arguments
7. Arguments Advanced
8. Prayers
COMPILATION ON BEHALF OF THE PETITIONER Page 2

LIST OF ABBREVIATIONS
AIR All India Reporter

Anr. Another
Art. Article
Ed. Edition
Govt. Government
Hon’ble Honourable
i.e. That is
No. Number
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reports
SCWR Supreme Court Weekly Reporter
SEBI Securities and Exchange Board of India
U/S Under section
v. Versus
Vol. Volume
www World Wide Web

INDEX OF AUTHORITIES
INDIAN CITATIONS
State of Kerala v Rajayyan, 1996 Cr LJ 145
Nura and Ors v Rex 1950 CriLJ 29
S. Varadarajan v State of Madras 1965 AIR 942
Poonam vs. State of U.P. and Ors. (17.09.2015 - ALLHC)
Naziya and Ors. vs. State of U.P. and Ors. (21.07.2016 - ALLHC)
Bhajan Lal v State of UP 1996 Cr LJ 460
Prakash Kumar Chettri v State of Sikkim, 2012 CrLJ 1893
State v Harbansing AIR 1954 Bom 339
Badanbai Vidya Lahare v State of Chhattisgarh 2012CrLJ 2350
Ramji Prasad v State of Bihar, 2013 Cr LJ 446
Renu vs. State of U.P. and Ors. (29.09.2015 - ALLHC)

:MANU/UP/1438/2015
Simran Kaur v. State of H.P
Kalyani Chaudhary v. the State of U.P 1978 CriLJ 1003
Neetu Singh Vs The State 1999 IIAD Delhi 37,
Ajay Kumar v Anita AIR 2015 P&H 163
Anchal Sagar And Another vs State Of Punjab And Others on 19 July,

2011 Criminal Misc.No.M-5647 of2011 (O&M)
White v. White (1948) 2 All ER 151
RvR

White V White
Kokulla Suresh v State of AP
Makemalla Sailoo vs Superintendent Of Police And Ors. 2006 (2) ALD

290, 2006 (2) ALT 383, II (2006) DMC 4
Ibrahim v Ibrahim 825 S.W.2d 391 (1992)
Meena &others v State & others
Smt. Raj Kumari vs Superintendent, Women ... 1998 CriLJ 654
Nil Ratan Kundu and Anr. V. Abhijit Kundu In 2008(9) SCC 413
-
Statues Referred :
The Hindu Marriage Act, 1955
The Hindu minority and Guardianship Act, 1956
The Indian Majority Act, 1999
Code of Criminal Procedure, 1974
Constitution of India
Prohibition of Child Marriage Act, 2006
The Protection of Children from Sexual Offences Act,2012
Indian Penal Code, 1860
Books Referred
Hindu Law- Sir DinshawFardunjiMulla
Code of Criminal Procedure- Ratanlal and Dhirajlal
Indian Penal Code- Ratanlal and Dhirajlal

Websites
• www.fipb.in
• www.judis.nic.in
• www.lexisnexis.com
• www.manupatra.com
• www.scconline.com
Legal Dictionaries
• Aiyer P.R., Advanced Law Lexicon, (3rd ed., 2005).
• Garner B.A., Black’s Law Dictionary, (9th ed., 2009).
• Greenberg Daniel, Stroud’s Judicial Dictionary of Words and Phrases,
(4th ed.), Sweet and Maxwell, Vol. 4.
• Mish F.C., Merriam-Webster's Collegiate Dictionary, (11th ed. 2003).
• Oxford Advanced Learners Dictionary, (7th ed., 2008)

STATEMENT OF JURISDICTION
The Appellant had approached the Hon’ble Sessions Court under section
26 of The Code of Criminal Procedure, 1974 which reads as under:-
Courts by which offences are triable. Subject to the other provisions of

this Code,-
(a) any offence under the Indian Penal Code (45 of 1860 ), may be tried
by-
(i) the High Court, or
(ii) the Court of Session, or
(iii) any other Court by which such offence is shown in the First Schedule
to be triable;
(b) any offence under any other law shall, when any Court is mentioned
in this behalf in such law, be tried by such Court and when no Court is so
mentioned, may be tried by-
(i) the High Court, or
(ii) any other Court by which such offence is shown in the First Schedule
to be triable.
The Petitioner humbly submits this memorandum to this Hon’ble Court

in response is filed by the Appellant

SUMMARY OF FACTS
1. Jitender Sharma is a young boy of eighteen years of age who has

fallen in love with Poonam Srivastava, who is a girl about to turn
sixteen years of age.
2. Jitender Sharma and Poonam Srivastava eloped from their
respective homes and got married as per Hindu rites and
ceremonies, Poonam’s family members were against this marriage.
3. Poonam’s grandfather and paternal uncle were not ready to accept
this marriage and they threatened Poonam of her life and safety.
4. Poonam’s father lodged a First Information Report dated
26/04/2010 against Jitender at Gandhi Nagar Police Station, Delhi
u/s 363 and 376 of Indian Penal Code, 1860. They also alleged that
Poonam was threatened and influenced by Jitender to marry him.
5. On 5th May, 2010, a typed letter signed by Poonam was received
by the Gandhi Nagar Police Station and it stated that Poonam had
married Jitender in her own will and she requested not to file any
criminal case against Jitender.
6. On 7th May, 2010, Jitender and Poonam were apprehended from
Bilaspur, Uttar Pradesh and were produced before respective
Court.
7. Poonam was informed about the importance of medical
examination which is a part of investigation and is required to
prepare the Investigation Report. But still she refused to undergo
medical examination. After which Poonam gave it in writing that
she had left her parent’s home on her own will.
8. The Court had sent Poonam to NariNiketan and on 17th May, 2010
Poonam’s custody was handed over to her parents

9. On 15th June, 2010 Jitender was released and he demanded the

custody of his wife by filing a case against his in laws.

ISSUES INVOLVED
1. Whether Jitender is liable for kidnapping of Poonam from her legal

guardian?
2. Whether the marriage is voidable under Hindu Marriage Act,
1955?
3. Whether Jitender is liable under Section 376 of Indian Penal Code,
1860 or there are some other provisions of law which makes
Jitender also liable under the ambit of that respective law?
4. Whether Jitender’s contention to get the custody of his wife is
maintainable or not?

SUMMARY OF ARGUMENTS
1. Whether Jitender is liable for kidnapping of Poonam from her

legal guardian?
i. Firstly, Section 361 of IPC 1860, states that Kidnapping
from lawful guardianship. —Whoever takes or entices any
minor under [sixteen] years of age if a male, or under
[eighteen] years of age if a female, or any person of unsound
mind, out of the keeping of the lawful guardian of such
minor or person of unsound mind, without the consent of
such guardian, is said to kidnap such minor or person from
lawful guardianship. Explanation. —The words “lawful
guardian” in this section include any person lawfully
entrusted with the care or custody of such minor or other
person.
ii. Secondly, Where there was no threat or inducement or
persuasion in taking away a minor girl provisions of section
361 or 366A were not attracted.
In the said case, Poonam left her guardian’s house of her
own will, there was no taking away or enticement on the part
of petitioner.
iii. Therefore, there is no commission of Kidnapping under
section 361 of Indian Penal Code, 1860
2. Whether the marriage is voidable under Hindu Marriage Act,

1955?
i. Firstly, Condition for a Hindu Marriage.- A marriage may
be solemnized between any two Hindus, if the following
conditions are fulfilled, namely: (i) neither party has a

spouse living at the time of the marriage; (ii) at the time

of the marriage, neither party,- (a) is incapable of giving a
valid consent of it in consequence ofunsoundness of
mind; or (b) though capable of giving a valid consent has
been suffering from mental disorder of such a kind or to
such an extent as to be unfit for marriage and the
procreation of children; or (c) has been subject to
recurrent attacks of insanity or epilepsy; (iii) the
bridegroom has completed the age of twenty one years
and the bride the age of eighteen years at the time of the
marriage; (iv) the parties are not within the degrees of
prohibited relationship unless the custom or usage
governing each of them permits of a marriage between
the two; (v) the parties are not sapindas of each other,
unless the custom or usage governing each of them
permits of a marriage between the two;
ii. Various courts in various cases including Simran Kaur v
State of Himachal Pradesh held that “the marriage,
which was performed in contravention of the age
prescribed in sub-section (3) of Section 5 of the Hindu
Marriage Act, requiring the groom to be of 21 years of
age and Page 1505 bride to be of 18 years of age, was
neither void nor voidable. This contravention did not fall
within the scope of Section 11 or Section 12 of the Hindu
Marriage Act,1955.
iii. Therefore, the said marriage is valid.

3. Whether Jitender is liable under Section 376 of Indian Penal Code,

1860 or there are some other provisions of law which makes Jitender also
liable under the ambit of that respective law?
i. Firstly, Section 375 of Indian Penal Code, 1860 defines rape as

Rape.—A man is said to commit “rape” who, except in the case
hereinafter excepted, has sexual intercourse with a woman
under circumstances falling under any of the six following
de-scriptions:—
(First) — Against her will.
(Secondly) —Without her consent.
(Thirdly) — With her consent, when her consent
has been obtained by putting her or any person in
whom she is interested in fear of death or of hurt.
(Fourthly) —With her consent, when the man
knows that he is not her husband, and that her
consent is given because she believes that he is
another man to whom she is or believes herself to
be law-fully married.
(Fifthly) — With her consent, when, at the time of
giving such consent, by reason of unsoundness of
mind or intoxication or the administration by him
personally or through another of any stupe-fying
or unwholesome substance, she is unable to
understand the nature and consequences of that to
which she gives consent.
(Sixthly) — With or without her consent, when
she is under sixteen years of age. Explanation.—

Penetration is sufficient to constitute the sexual

intercourse necessary to the offence of rape.
(Exception) —Sexual intercourse by a man with
his own wife, the wife not being under fifteen
years of age, is not rape.
ii. Secondly, 'consummation' was interpreted to mean
"Vera copula or conjunction of the bodies". It
means a true conjunction is achieved as soon as
full entry and penetration has been achieved and
what follows goes merely to the likelihood or
otherwise of conception" was quoted with
approval. It was also observed that 'Vera copula'
consisted of erection and penetration.
iii. In the said facts given, there is no consummation of
marriage between Petitioner and Poonam,
therefore, there is no commission of rape under
376 of Indian Penal Code, 1860

i. Firstly, In the backgrounds of the facts, it is clear that the

said marriage is valid and good in law.
ii. Secondly, as per section 6(c) of The Hindu Minority and
Guardianship Act,1956. Natural guardians of a Hindu
minor.—
The natural guardian of a Hindu minor, in respect of the
minor’s person as well as in respect of the minor’s property
(excluding his or her undivided interest in joint family
property), are— in the case of a married girl—the husband.

iii. It is pertinent to bring to the notice of the court that paternal

uncle and grandfather are threatening poonam of her life and
safety. In a situation like this, it is highly unsafe for life of
poonam to live with her parents. In selecting proper guardian
of a minor, the paramount consideration should be the
welfare and well-being of the child.
iv. Therefore, in light of above law and arguments proposed, the
contention of petitioner to get custody of his wife is
maintainable.

ARGUEMENTS ADVANCED
1. Whether Jitender is liable for the kidnapping of Poonam from her

legal guardian?
i. The Petitioner humbly submits that Jitender is not guilty of

kidnapping of Poonam as per section 361 and section 363 of Indian
Penal Code 1860.
ii. Section 361 of IPC 1860, states that Kidnapping from lawful
guardianship. —Whoever takes or entices any minor under
[sixteen] years of age if a male, or under [eighteen] years of age if
a female, or any person of unsound mind, out of the keeping of the
lawful guardian of such minor or person of unsound mind, without
the consent of such guardian, is said to kidnap such minor or
person from lawful guardianship. Explanation. —The words
“lawful guardian” in this section include any person lawfully
entrusted with the care or custody of such minor or other person.
iii. Section 363 of IPC 1860, states that Punishment for kidnapping. —
Whoever kidnaps any person from [India] or from lawful
guardianship, shall be punished with imprisonment of either
description for a term which may extend to seven years, and shall
also be liable to fine.
iv. Where there was no threat or inducement or persuasion in taking
away a minor girl provisions of section 361 or 366A were not
attracted1
v. There can also be no doubt that, so ac as the legal position is
concerned, if a minor girl voluntarily leaves the roof of her
guardian and when out of his house, comes across another,, who
treats her with kindness, or at least without employing any force or
1
State of Kerala v Rajayyan, 1996 Cr LJ 145

practising any fraud on her, he cannot be held guilty Under Section

361, Penal Code. This was held by a Bench of this Court
in Emperor v. Bam Chander A.I.R. (1) 1914 ALL. 376 : 16
Cr.L.J. 265 and by Tudball J. in Emperor v. Ewaz Alt, 37 ALL.
624 : A.I.R. (2) 1915 ALL. 390 : 16 Cr.L.J. 663.
…………………..But the point really is that the girl had gone out
of her father's house, and gone out with Azimuddin willingly and
without anybody having exercised any compulsion on her. I,
therefore, have come to the conclusion that no charge
Under Section 366, Penal Code, can be made out against
Azimuddin, and he must be acquitted of it.2
vi. The Supreme court in Varadarjan had come to the the positive
conclusion that the minor had gone out of the keeping of her
guardian voluntarily and the accused had no role whatsoever in
such minor walking out of the keeping of her guardian. A person
who allows such a minor who is already out of keeping of the
guardian to accompany him commits no offence under 361 of IPC.
3
vii. If a minor, of her own, abandons the guardianship of her parents

and joins a boy without any role having been played by the boy in
her abandoning the guardianship of her parents and without her
having been subjected to any kind of pressure, inducement, etc and
without any offer or promise from the accused, no offence
punishable under Section 363 I.P.C. will be made out when the girl
is aged more than 17 years and is mature enough to understand
what she is doing. Of course, if the accused induces or allures the
girl and that influences the minor in leaving her guardian's custody
2
Nura and Ors v Rex 1950 CriLJ 29
3
S. Varadarajan v State of Madras 1965 AIR 942

and the keeping and going with the accused, then it would be
difficult for the Court to accept that minor had voluntarily come to
the accused. In case the victim/prosecutrix willingly, of her own
accord, accompanies the boy, the law does not cast a duty on the
boy of taking her back to her father's house or even of telling her
not to accompany him.4
viii. After considering the submissions advanced by the learned counsel
for the parties, it appears that petitioner No. 1 has voluntarily
eloped with the petitioner No. 2 and also married with him. They
are living together as husband and wife after getting their marriage
registered before the Registrar Hindu Marriage, Ghaziabad. It is
not a case of enticing away or taking away5
ix. Where in a case of kidnapping the girl deposed that she had gone
with the accused voluntarily, his conviction under sec 363 was set
aside6
x. From the evidence extracted above, the only conclusion that one
can draw is that the Appellant and the victim are paramours and
that the victim had willingly agreed to elope with the Appellant.
Had it been otherwise it was expected of the victim to have raised
alarms during the period over two months when she travelled
together with the Appellant and lived at different places.7
xi. The Supreme Court took the view that Section 498 IPC is meant
essentially for protection of the rights of the husband, whereas
Section 361 IPC and other cognate sections of the IPC are intended
4
Poonam vs. State of U.P. and Ors. (17.09.2015 - ALLHC)
5
Naziya and Ors. vs. State of U.P. and Ors. (21.07.2016 - ALLHC)
6
Bhajan Lal v State of UP 1996 Cr LJ 460
7
Prakash Kumar Chettri v State of Sikkim, 2012 CrLJ 1893

more for the protection of minors and persons of unsound mind

than the rights of the guardians of such persons.8
xii. It appears that on the date of incident, the age of the prosecutrix
was near about 17 years which is below 18 years, but looking to the
evidence of the prosecutrix she left Jarve for Mungeli willingly.
There is no evidence she was under threat or coercion or
inducement or enticement by the appellant. Therefore the
conviction of the appellant under sec 363 read with sec 34 and 149
IPC and under sec 366 read with sec 34 and 149 cannot be
sustained.9
xiii. Where statement and conduct of the victim showed that there was
neither threat nor force used by the accused, it cannot be said that
victim was forcibly kidnapped and kept in custody. Accused is
entitled to acquittal10
xiv. If a minor, of her own, abandons the guardianship of her parents
and joins a boy without any role having been played by the boy in
her abandoning the guardianship of her parents and without her
having been subjected to any kind of pressure, inducement, etc and
without any offer or promise from the accused, no offence
punishable under Section 363 I.P.C. will be made out when the girl
is aged more than 17 years and is mature enough to understand
what she is doing. Of course, if the accused induces or allures the
girl and that influences the minor in leaving her guardian's custody
and the keeping and going with the accused, then it would be
difficult for the Court to accept that minor had voluntarily come to
the accused. In case the victim/prosecutrix willingly, of her own
accord, accompanies the boy, the law does not cast a duty on the
8
State v Harbansing AIR 1954 Bom 339
9
Badanbai Vidya Lahare v State of Chhattisgarh 2012CrLJ 2350
10
Ramji Prasad v State of Bihar, 2013 Cr LJ 446

boy of taking her back to her father's house or even of telling her
not to accompany him.11
2. Wheather the marriage is voidable under Hindu Marriage Act,

1955?
i. Condition for a Hindu Marriage.- A marriage may be solemnized

between any two Hindus, if the following conditions are fulfilled,
namely: (i) neither party has a spouse living at the time of the
marriage; (ii) at the time of the marriage, neither party,- (a) is
incapable of giving a valid consent of it in consequence of
unsoundness of mind; or (b) though capable of giving a valid
consent has been suffering from mental disorder of such a kind or
to such an extent as to be unfit for marriage and the procreation of
children; or (c) has been subject to recurrent attacks of insanity or
epilepsy; (iii) the bridegroom has completed the age of twenty one
years and the bride the age of eighteen years at the time of the
marriage; (iv) the parties are not within the degrees of prohibited
relationship unless the custom or usage governing each of them
permits of a marriage between the two; (v) the parties are not
sapindas of each other, unless the custom or usage governing each
of them permits of a marriage between the two;
The Court held that, “the marriage, which was performed in

contravention of the age prescribed in sub-section (3) of Section 5 of the
Hindu Marriage Act, requiring the groom to be of 21 years of age and
Page 1505 bride to be of 18 years of age, was neither void nor voidable.
11
Renu vs. State of U.P. and Ors. (29.09.2015 - ALLHC) : MANU/UP/1438/2015

This contravention did not fall within the scope of Section 11 or Section
12 of the Hindu Marriage Act12”.
ii. Kalyani Chaudhary v. the State of U.P holding that the marriage of
the minor girl of 15 years of age was neither void nor voidable and
sending of the girl to NariNiketan was unwarranted. It was held
that such detention would be contrary to law.13
iii. Neetu Singh Vs The State “the marriage in contravention of clause
(iii) of Section 5 is neither void nor voidable under the provisions
of the Hindu Marriage Act. The only other relevant provision
is Section 18 of the Act, which provides for punishment for
contravention of the conditions specified in Section 5(iii) also. The
punishment will be imprisonment, which may extend to 15 days or
with fine which may extent to Rs. 1,000/ or both. Thus, the only
provision which will come into play in the event of contravention
of Section 5(iii) is Section 18 of the Hindu Marriage Act and
nowhere does the Act declare the marriage to be illegal or in valid
or void."14
“A marriage solemnised in violation of requirement as to the age laid

down in this clause is not void or even voidable, but the contravention of
the condition is punishable as an offence under S 18 of the Act.”15
“Delving deeper into the controversy, S 18 of the HMA provides for

punishment for contravention of certain conditions of a Hindu marriage,
but, yet it also does not declare marriage contravening Clause (iii)
of Section 5 of the HMA as void or voidable. It provides for punishment
12
Simran Kaur v. State of H.P
13
Kalyani Chaudhary v. the State of U.P 1978 CriLJ 1003
14
Neetu Singh Vs The State 1999 IIAD Delhi 37,
15
Ajay Kumar v Anita AIR 2015 P&H 163

for contravention of the conditions specified in Section 5,which,

undoubtedly, includes Section 5(iii) also. The punishment will be
imprisonment or/and fine. Thus, the only provision, which comes into
play in the event of contravention of Clause (iii) of Section 5,
is Section 18 of the HMA. The Act nowhere declares the marriage to be
16
illegal or invalid or void.”
16
Anchal Sagar And Another vs State Of Punjab And Others on 19 July, 2011 Criminal Misc.No.M-5647
of 2011(O&M)

3. Whether Jitender is liable under Section 376 of Indian Penal

Code, 1860 or there are some other provisions of law which
makes Jitender also liable under the ambit of that respective law?
i. The counsel on behalf of petitioner humbly submits that the

petitioner is not guilty.
ii. To record conviction under section 376 of IPC, it is necessary
to find the accused guilty of rape as defined under section 375
of IPC which reads as under;
Rape.—A man is said to commit “rape” who, except in the case

hereinafter excepted, has sexual intercourse with a woman under
circumstances falling under any of the six following de-scriptions:—
(First) — Against her will.
(Secondly) —Without her consent.
(Thirdly) — With her consent, when her consent has

been obtained by putting her or any person in whom she
is interested in fear of death or of hurt.
(Fourthly) —With her consent, when the man knows that

he is not her husband, and that her consent is given
because she believes that he is another man to whom she
is or believes herself to be law-fully married.
(Fifthly) — With her consent, when, at the time of giving

such consent, by reason of unsoundness of mind or
intoxication or the administration by him personally or
through another of any stupe-fying or unwholesome
substance, she is unable to understand the nature and
consequences of that to which she gives consent.

(Sixthly) — With or without her consent, when she is

under sixteen years of age. Explanation.—Penetration is
sufficient to constitute the sexual intercourse necessary
to the offence of rape.
(Exception) —Sexual intercourse by a man with his own

wife, the wife not being under fifteen years of age, is not
rape.]
iii. Sexual intercourse means if a man
a) penetrates his penis, to any extent, into the vagina, mouth, urethera
or anus of a woman or makes her to do so with him or any other
person; or
b. inserts, to any extent, any object or a part of the body, not being
the penis, into the vagina, the urethra or anus of a woman or makes
her to do so with him or any other person; or
c. manipulates any part of the body of a woman so as to cause

penetration into the vagina, urethra, anus or any ~ of body of such
woman or makes her to do so with him or any other person; or
d. applies his mouth to the vagina, anus, urethra of a woman or

makes her to do so with him or any other person, under the
circumstances falling under any of the following seven
descriptions:— First.—Against her will. Secondly.—Without her
consent.
In R v R, it was held by Commissioner Bush James,

while considering the meaning of the word
'consummation', noticed that procreation of children was
not the principal end of marriage and accepted the view

of Lord Jowit in Baxter v. Baxter, (1947) 2 All ER 886,

which emphasized the "irrelevance of procreation as an
end in marriage". The expression 'consummation' was
interpreted to mean "vera copula or conjunction of the
bodies".
iv. The view expressed in White v. White, (1948) 2

All ER 151, "that a true conjunction is achieved as
soon as full entry and penetration has been
achieved and what follows goes merely to the
likelihood or otherwise of conception" was quoted
with approval. It was also observed that 'vera
copula' consisted of erection and penetration.
v. It is a matter of fact that the marriage of Poonam
and Jitender was conducted as per Hindu rites and
ceremonies. It is also important to note that the
marriage is good in law and holds legal grounds
and its validity to it.
vi. Despite the fact that they were deeply in love,
there seem to be no traces of any physical
relationship amongst the two which can in
anywhich manner be pronounced as rape or even
mere consummation
vii. It is humbly submitted before this honourable
court that the contention made by the respondent
of rape committed by petitioner is false, baseless
and has nothing to do with facts of the case. As
per the definitions produced above about the

consummation, sexual intercourse and rape, none

of it was performed between Jitender and Poonam.
Hence, the petitioner humbly pleads that he is not

guilty under section 376 of IPC, 1860.


i. It is humbly submitted that Petitioner’s contention to get the

custody of wife is maintainable on the following grounds:
Firstly, The marriage between the petitioner and Poonam is valid .
ii. Section 5 of Hindu Marriage act defines marriage as –
Conditions for a Hindu marriage. —A marriage may be solemnized

between any two Hindus, if the following conditions are fulfilled,
namely:—
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party—
(a) is incapable of giving a valid consent to it in consequence of
unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering from
mental disorder of such a kind or to such an extent as to be unfit for
marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity 3 [***];]
(iii) the bridegroom has completed the age of 4 [twenty-one years] and the
bride, the age of 5[eighteen years] at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship unless
the custom or usage governing each of them permits of a marriage
between the two;
(v) the parties are not sapindas of each other, unless the custom or usage
governing each of them permits of a marriage between the two;
iii. It is humbly submitted that the legislature has stopped short of
declaring them as null and void or even voidable. The legal
detterent is that the breach of the conditions relating to age is

punishable as an offence. It will be seen that non-fulfillment of

every one of the conditions and requirements enacted in section 5
does not ipso facto render the marriage null and void or even or
even voidable.
iv. In the backgrounds of the facts, it is clear that the said marriage is
valid and good in law.
v. As per section 6(c) of The Hindu Minority and Guardianship
Act,1956
Natural guardians of a Hindu minor.—
The natural guardian of a Hindu minor, in respect of the minor’s
person as well as in respect of the minor’s property (excluding his
or her undivided interest in joint family property), are— in the case
of a married girl—the husband.
vi. In the case of Kokulla Suresh v State of Andhra Pradesh, it was
held that as per Section 6 (c) of the said Act, in the case of a Hindu
minor married girl, the husband is the natural guardian in respect of
the minor's person as well as in respect of the minor's property. On
a combined reading of Section 5 (iii) read with Sections 11, 12 and
18 of the Hindu Marriage Act and Section 4 (a) and Section 6 (a)
and (c) of Hindu minority and Guardianship Act, 1956, I find force
in the submission of the learned counsel for the petitioner that the
petitioner who is the husband of 3rd respondent's minor daughter is
her natural guardian and consequently her custody shall be with the
petitioner.
It was held that the 3rd respondent therein was entitled to the custody of
his wife, who was a minor girl of 13 years, since he was the natural
guardian under the provisions of the Hindu Minority and Guardianship
Act, 1956, and accordingly directed that the minor girl who was sent to

State Home for Child-care Centre by the Magistrate shall be handed over
to her husband, the 3rd respondent therein.
vii. In the case of Makemalla Sailoo vs Superintendent Of Police
And Ors, it was held thatWe have no option, but to allow this girl
who is only 13 years old to go with her husband, but we feel that
the Legislatures have not done much to stop the child marriages
which are a menace.
. There are so many Acts to which a reference has been given by us
hereinabove, which make the child marriage an offence, but which do not
make the child marriage a void marriage. Since the marriage which has
taken place between the alleged detenue and the 3rd respondent is a valid
marriage in the eye of law, though it may be an offence under various
provisions of various statutes, yet the marriage cannot be nullified and
under the Hindu Minority and Guardianship Act, 1956 the 3rd respondent
becomes a natural guardian of the detenue.
viii. In the case of Ibrahim v. Ibrahim, 1916, it was held the minor can
be the guardian of his wife but cannot be guardian of her property.
ix. In Meena & Anr. vs State & Anr. on 17 October, 2012, it was
held that
There would be many other factors which the Court will have to keep in
mind, particularly in those cases where the girl, though minor, eloped
withthe boy (whether below or above 21 years of age) and she does not
want to go back to her parents. Question may arise as to whether in such
circumstances, the custody can be given to the parents of the husband
with certain conditions, including the condition that husband would not
be allowed to consummate the marriage.
x. In the case of Smt. Raj Kumari Versus Superintendent, Women
Protection, Meerut and others House reported in

A.W.C. 720 another Division Bench of this Court has laid down
the following dictum:
"In view of the above, it is well settled view of this Court that even a
minor cannot be detained in Government Protective Home against her
wishes. In the instant matter, petitioner has desired to go with Sunil
Kumar besides this according to the two medical reports, i. e. of the Chief
Medical Officer and L.L.R.M., College Meerut, the petitioner is certainly
not less than 17 years and she understands her well being and also is
capable of considering her future welfare. As such, we are of the opinion
that her detention in Government Protective Home, Meerut against her
wishes is undesirable and impugned order dated 23.11.96 passed by the
Magistrate directing her detention till the party concerned gets a
declaration by the civil court or the competent court of law regarding her
age, is not sustainable and is liable to be quashed."
It is pertinent to bring to the notice of the court that paternal uncle and
grandfather are threatening poonam of her life and safety. In a situation
like this, it is highly unsafe for life of poonam to live with her parents.
xi. In Nil Ratan Kundu and Anr. V. Abhijit Kundu In 2008(9)

SCC 413 the Supreme Court has held that the Court while
dealing with custody case is neither bound by statutes nor by
strict rules of evidence or procedure nor by precedents, which
reads as under :
In our judgment, the law relating to custody of a child is fairly
well-settled and it is this: in deciding a difficult and complex
question as to the custody of a minor, a Court of law should keep in
mind the relevant statutes and the rights flowing there from. But
such cases cannot be decided solely by interpreting legal
provisions. It is a humane problem and is required to be solved

with human touch. A Court while dealing with custody cases, is

neither bound by statutes nor by strict rules of evidence or
procedure nor by precedents.
xii. In selecting proper guardian of a minor, the paramount
consideration should be the welfare and well-being of the child.
In selecting a guardian, the Court is exercising parens patriae
jurisdiction and is expected, nay bound, to give due weight to a
child’s ordinary comfort, contentment, health, education,
intellectual development and favourable surroundings. But overand
above physical comforts, moral and ethical values cannot be
ignored. They are equally, or we may say, even more important,
essential and indispensable considerations. If the minor is old
enough to form an intelligent preference or judgment, the Court
must consider such preference as well, though the final decision 8
should rest with the Court as to what is conductive to the welfare of
the minor.”
xiii. Since Poonam is of discretionary age, she left her house on her
own will, consented to marry which results marriage in pure
validity making Petitioner, the natural guardian.
xiv. This gives petitioner the right to have the custody of his wife.
Therefore, it is humbly contended that contention for maintainability
of custody is valid.

PRAYERS
Wherefore, in the light of the issues raised, arguments advanced and

authorities cited it is most humbly pleaded that may this Hon’ble Court be
pleased to:
1. Hold contention to get custody of wife maintainable
2. Quash charges of kidnapping under 363 and rape under 376 of
Indian Penal Code, 1860 against Petitioner
3. Declare marriage between Petitioner and Poonam to be valid
4. Or provide any other relief, justice and/or pass any order that the
Hon’ble Court deems fit in the interest of natural justice, equity
and good conscience

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M.K.E.S 3rdNATIONAL MOOT COURT COMPETITION, 2018

BEFORE THE SESSIONS COURT, DELHI

Petition filed under Article 26 of The Code of Criminal Procedure, 1974

In the matter of,

Mr. Jitendra Sharma……….Appellant

Compilation On Behalf Of the PETITIONER

COMPILATION ON BEHALF OF THE PETITIONER Page 2

AIR All India Reporter

COMPILATION ON BEHALF OF THE PETITIONER Page 3

State of Kerala v Rajayyan, 1996 Cr LJ 145

Nura and Ors v Rex 1950 CriLJ 29

S. Varadarajan v State of Madras 1965 AIR 942

Poonam vs. State of U.P. and Ors. (17.09.2015 - ALLHC)

Bhajan Lal v State of UP 1996 Cr LJ 460

Prakash Kumar Chettri v State of Sikkim, 2012 CrLJ 1893

State v Harbansing AIR 1954 Bom 339

Badanbai Vidya Lahare v State of Chhattisgarh 2012CrLJ 2350

Ramji Prasad v State of Bihar, 2013 Cr LJ 446

Renu vs. State of U.P. and Ors. (29.09.2015 - ALLHC)

Simran Kaur v. State of H.P

Kalyani Chaudhary v. the State of U.P 1978 CriLJ 1003

Neetu Singh Vs The State 1999 IIAD Delhi 37,

Ajay Kumar v Anita AIR 2015 P&amp;H 163

Anchal Sagar And Another vs State Of Punjab And Others on 19 July,

White v. White (1948) 2 All ER 151

COMPILATION ON BEHALF OF THE PETITIONER Page 4

Kokulla Suresh v State of AP

Makemalla Sailoo vs Superintendent Of Police And Ors. 2006 (2) ALD

Meena &others v State & others

Smt. Raj Kumari vs Superintendent, Women ... 1998 CriLJ 654

The Hindu Marriage Act, 1955

The Hindu minority and Guardianship Act, 1956

The Indian Majority Act, 1999

Code of Criminal Procedure, 1974

Prohibition of Child Marriage Act, 2006

The Protection of Children from Sexual Offences Act,2012

Indian Penal Code, 1860

Hindu Law- Sir DinshawFardunjiMulla

Code of Criminal Procedure- Ratanlal and Dhirajlal

Indian Penal Code- Ratanlal and Dhirajlal

COMPILATION ON BEHALF OF THE PETITIONER Page 5

COMPILATION ON BEHALF OF THE PETITIONER Page 6

Courts by which offences are triable. Subject to the other provisions of

(i) the High Court, or

(ii) the Court of Session, or

(i) the High Court, or

The Petitioner humbly submits this memorandum to this Hon’ble Court

COMPILATION ON BEHALF OF THE PETITIONER Page 7

1. Jitender Sharma is a young boy of eighteen years of age who has

COMPILATION ON BEHALF OF THE PETITIONER Page 8

9. On 15th June, 2010 Jitender was released and he demanded the

COMPILATION ON BEHALF OF THE PETITIONER Page 9

1. Whether Jitender is liable for kidnapping of Poonam from her legal

COMPILATION ON BEHALF OF THE PETITIONER Page 10

1. Whether Jitender is liable for kidnapping of Poonam from her

2. Whether the marriage is voidable under Hindu Marriage Act,

COMPILATION ON BEHALF OF THE PETITIONER Page 11

spouse living at the time of the marriage; (ii) at the time

COMPILATION ON BEHALF OF THE PETITIONER Page 12

3. Whether Jitender is liable under Section 376 of Indian Penal Code,

i. Firstly, Section 375 of Indian Penal Code, 1860 defines rape as

Ajay Kumar v Anita AIR 2015 P&H 163