JAI NARAYAN VYAS UNIVERSITY

SESSION 2021-2022

B.A.LL.B 5TH SEMESTER

HINDU LAW
MOOT MEMORANDUM

SUBMITTED TO: Dr. CHETANA SHARMA

Table of Contents 2

List of Abbreviations 3

Index of Authorities 4

Statement of Jurisdiction 5

Statement of Facts 6

ISSUES 8

Arguments Advanced 9
 LIST OF ABBREVIATIONS

AIR All India Reporter

Cr.P.C. Code of Criminal Procedure

I IPC Indian Penal Code

IC Indian Cases

p. Page No.

SC Supreme Court

Sec. Section

v. Versus

HMA Hindu Marriage Act,1955

WEBSITES:
1. http://www.findlaw.com

2. http://www.judis.nic.in

3. http://www.manupatra.co.in/AdvancedLegalSearch.aspx

4. http://www.scconline.com

BOOKS:
1. Mulla Hindu LAW (22nd edition)

2. Dr. Paras Diwan, Modern Hindu Law

3. Dr. Poonam Pradhan Saxena , Family Law Lectures (4th edition)

4 .Ratanlal and Dhirajlal, The Indian Penal Code, 33rd Ed. (2011)

5. P S A Pillai’s Criminal Law(14th ED.2021)

6. Kelkar, R.V. Criminal Procedure, (7th Ed. 2021)

TABLE OF CASES:
1. Anita Thaukral v. Shri Satbir Singh Thaukral
2 .Kare More Sharabanna Rudrappa & ors. v. Basamma & ors
3. Mangatmul V. Punni Devi (1995) (5) scale 199 SC
4. Abbayolla M. Subba Reddy v. Padmamma
5. Revanasiddappa vs Mallikarjun
 STATEMENT OF JURISDICTION

The Hon’ble High Court has jurisdiction to try the instant matter under Section 19 of The Family
Courts Act, 1984

Section 19:

19. Appeal.—(1) Save as provided in sub-section (2) and notwithstanding anything contained in the
Code of Civil Procedure,1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974) or in
any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of
a Family Court to the High Court both on facts and on law.

(2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the
parties2 [or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of
1974): Provided that nothing in this sub-section shall apply to any appeal pending before a High
Court or any order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)
before the commencement of the Family Courts (Amendment) Act, 1991 (59 of 1991).]

(3) Every appeal under this section shall be preferred within a period of thirty days from the date of
the judgment or order of a Family Court.

(4) The High Court may, of its own motion or otherwise, call for and examine the record of any
proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX
of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to the
correctness, legality or propriety of the order, not being an interlocutory order, and as to the
regularity of such proceeding.

(5) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, order or
decree of a Family Court.

(6) An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more
Judges.
 STATEMENT OF FACTS

1. Marriage of ‘G’ (a girl) and ‘B’ (a boy) was solemnized as per Hindu rituals at
Jaipur on 24.03.2010. Husband ‘B’ is resident of Jaipur whereas parents of ‘G’ are
resident of Uttar Pradesh. ‘B’ at the time of marriage was pursuing his Engineering
degree but this fact was not disclosed to ‘G’ and her family and rather they were
made to believe that ‘B’ is an Engineer. ‘G’ herself was a qualified Engineer at the
time of marriage. Soon after marriage, the truth about qualification of ‘B’ was
disclosed to ‘G’ and her parents. ‘G’, despite the truth of husband’s lie about
qualification coming to her knowledge, continued in the matrimonial home by
deposing faith in her husband.
2. ‘B’ still didn’t even attempt to complete his education but he started trading in
share market which fetch him huge dividends. ‘B’ started trading in properties as
well and earned huge income. He even purchased four properties in his name. ‘B’
despite having decent income, was not giving a single penny to his wife or at home
for meeting out the day to day expenses at home. His parents made ‘B’ and his
wife leave their home and reside at a separate place on their own. ‘B’ started living
at a separate place with his wife but still he did not spend a single penny for
meeting out the day to day expenses of matrimonial home. ‘G’ had to take regular
financial help from her parents to meet out the requirements of matrimonial home
including the food requirements of the couple.
3. ‘B’ started visiting another woman namely ‘W’ and developed relationship with
her. ‘G’ came to know about this relationship and opposed the same. Upon being
opposed, ‘B’ left the matrimonial home and started residing with the said ‘W’. ‘B’
married with the said woman in a temple. ‘G’ waited for ‘B’ to return to
matrimonial home for more than 2 years but he didn’t return and deserted her
during the said period and thereafter.

4. ‘G’ filed application under section 18 of the Hindu Adoption and Maintenance
Act, 1956. During pendency of proceedings, ‘B’ gifted his two out of total 4
properties, in favour his cousin and remaining two properties were sold by him
to a bonafide purchaser known as ‘K’ against consideration. All four properties
were transferred on same day during pendency of aforesaid proceedings U/s18 of
the Act.
5. ‘G’ upon coming to know about the aforesaid action, issued public notice in
local newspapers having sufficient circulation in the area and made public at large
aware about her right to receive maintenance from properties of her husband.
Cousin of ‘B’, upon witnessing the newspaper publication, sold the properties to
yet another close and near relative of ‘B’ known as ‘A’, who happens to be
resident of same area.
6. The purchasers of properties, i.e. ‘A’ & ‘K’ were impleaded as defendants in the
matter but ‘W’ was not impleaded upon her application through which she claimed
her right on property in the capacity of wife of ‘B’. Court held that ‘W’ was not a
legally wedded wife as the marriage of ‘B’ & ‘G’ was still surviving. Court after
hearing all the parties, the proceedings U/s 18 as initiated by ‘G’ were decreed and
a charge of bearing the burden of maintenance amount and its arrears was created
on all the four properties.
7. ‘A’ and ‘K’ filed separate miscellaneous appeals and challenged the decree to
the extent of properties owned by them at the strength of registered sale deeds
executed in their favour. ‘B’ also filed appeal on the ground that he is wedded with
‘W’ and the couple even has a child and therefore ‘G’ is not entitled to any
maintenance.
 ISSUES
i) Whether ‘A’ is entitled to have the property sold to him by cousin of ‘B’ and
whether the charge for the purpose of bearing burden of maintenance, created upon
the property registered in the name of ‘A’ was valid?

ii) What was the status of property received in gift by the cousin of ‘B’?

iii) Whether ‘K’, a bonafide purchaser, is entitled to have the property sold to him
by ‘B’ and whether the charge created upon the property registered in the name of
‘K’, for the purpose of bearing burden of maintenance, was valid ?

iv) What is the right of ‘W’ in this matter, if any and whether the defense of ‘B’ on
the basis of his alleged marriage with ‘W’ worth granting relief to him ?
 ARGUMENTS ADVANCED

i) Whether ‘A’ is entitled to have the property sold to him by cousin of ‘B’ and
whether the charge for the purpose of bearing burden of maintenance,
created upon the property registered in the name of ‘A’ was valid?
It is humbly contended before this Hon’ble Court that ‘A’ is not exhaustively entitled to have
the property sold to him by cousin of ‘B’ and the charge for the purpose of bearing burden of
maintenance, created upon the property registered in the name of ‘A’ was absolutely valid .As
the term Maintenance has been described in the definition clause of the Hindu Adoption and
Maintenance act i.e., Section 3(b) as something that can provide for food, clothing, shelter,
education and medical expenses. Basically, it is financial support paid by a husband or a father
that covers all basic necessities of life. The wife must be paid maintenance after divorce until
she gets married again. The idea behind this is to let her live with her lifestyle and comfort that
existed during her marriage, and it must be paid until she gets remarried. There is no minimum
or the maximum amount fixed for maintenance, it is to be decided by the court according to
the earning capacity of the husband. If the husband is well to do then the maintenance shall be
high in order to match the rich lifestyle the wife was used to during the marriage. If that is not
the case, it must be a reasonable enough amount that can cover all her reasonable expenses.
Maintenance can be paid every month or in a lump sum. Even when the wife has some source
of income and some property but needs some financial aid for necessary expenses such as
medical expenses. It is the obligation of the husband to pay maintenance for such expenses if
required. The same was held by the Hon’ble Supreme Court in the case of Smt. Anita Thaukral
v. Shri Satbir Singh Thaukral. In the aforementioned case, the wife had some source of income
and also had an apartment in a good location but, she was unable to make enough money to
cover up her medical expenses The court held that The wife will use one of the debit cards of
the husband, with the undertaking that she will only withdraw a reasonable amount as may be
necessary for her medical expenses. According to the section 28 of the Hindu Adoption And
Maintenance Act,1956 The transferee has to maintain the dependent out of the property he
received if he has the notice of the right or the transfer is gratuitous and This idea flows from
Section 39 of the Transfer of Property Act, 1882 which says that If a third person is entitled to
be maintained from the profit made out of immovable property and such property is
transferred, the transferee will be liable for the payment of such maintenance if there was a
notice or if the transfer is gratuitous clearly in this case the girl ‘G’ upon coming to know about
the aforesaid action of her husband, issued public notice in local newspapers having sufficient
circulation in the area and made public at large aware about her right to receive maintenance
from properties of her husband yet ‘A’, who happens to be resident of same area and near
relative of ‘B’ purchased the property from the cousin with the knowledge that this property is
of contentions and will create trouble in the near future. so ‘A’ is not exhaustively entitled to
have the property sold to him by cousin of ‘B’ and the charge for the purpose of bearing burden
of maintenance, created upon the property registered in the name of ‘A’ was absolutely valid .

ii) What was the status of property received in gift by the cousin of ‘B’?

It is humbly contended before this Hon’ble Court that according to The Hindu Adoption And
Maintenance Act, 1956 A dependent who is entitled to receive maintenance from a property or
an estate and the very estate gets transferred, it becomes the obligation of the transferee to
maintain the dependent if the transferee has received a notice regarding that right or if the
transfer is without any reasonable grounds. Section 28 of the Hindu Adoption and Maintenance
Act states that where a dependent has a right to receive maintenance out of an estate and such
estate or any part thereof is transferred, the right to receive maintenance may be enforced
against the transferee if the transfer is gratuitous and in this case During pendency of
proceedings, ‘B’ gifted his two out of total 4 properties, in favour of his cousin and that’s why
the disposition of property was gratuitous and because the disposition was gratuitous the girl
‘G’ will be entitled to get maintenance out of that property similarly In the case of Kare More
Sharabanna Rudrappa & ors. v. Basamma & ors, it was held that A person’s wife and children
who are entitled to be maintained out of his property must be paid maintenance by making a
charge over his property that he possesses, and Out of those properties that have been
transferred gratuitously in order to avoid responsibilities. Similarly in case of Mangatmul V.
Punni Devi it was held that “maintenance must necessarily encompass a provision for
residence. Maintenance is given so that the lady can live in a manner more or less to which she
is accustomed. The concept of maintenance must therefore include provision for food and
clothing and the like and take into account the basic need of a roof over the head.

iii) Whether ‘K’, a bonafide purchaser, is entitled to have the property

It is humbly contended before this Hon’ble Court that ‘k’ is entitled to have the property sold to
him by ‘B’ because according to Section 28 of the Hindu Adoption and Maintenance Act The
transferee has to maintain the dependent out of the property he received if he has the notice
of the right or the transfer is gratuitous But, if the property was transferred for consideration
and notice was not provided regarding the maintenance then the transferee will not be liable to
make any payments for maintenance. And in this case during pendency of proceedings, ‘B’ sold
his 2 out of total 4 properties to a bonafide purchaser known as ‘K’ against consideration and
‘G’ upon coming to know about the aforesaid action, issued public notice in local newspapers to
make public at large aware about her right to receive maintenance from properties of her
husband so it is clear by the facts that ‘K’ had already purchased the land and the ‘G’ issued
notice later on so the charge created upon the property registered in the name of ‘K’, for the
purpose of bearing burden of maintenance, was void.
iv) What is the right of ‘W’ in this matter, if any and whether the defense
of ‘B’ on the basis of his alleged marriage with ‘W’ worth granting relief
to him ?

It is humbly contended before this Hon’ble Court that according to the Section 17 of Hindu
Marriage Act, any person who is considered Hindu according to Section 1 marries again during
the life of first husband/wife, shall be punished under Indian Penal Code provision and in IPC
under Section 494 Bigamy is prohibited. The law states that, whoever in the lifetime of existing
husband/wife marries someone else, such marriage by reason of its taking place during the
lifetime of such husband or wife, should be considered void and should be punished for such
offence. If any person marries more than once during the life of first husband or wife should be
punished with imprisonment which may extend to seven years, and shall also be liable to fine.
The second wife does not have any legal right. In fact, the second marriage is considered void.
Women whose marriage has been declared void suffers a lot. By the facts it is clear that the ‘W’
had no idea that the ‘B’ was already married. Though there are no specific provisions for the
second spouse, but there are a few ways in which she can sue her husband. Section 495 of
Indian Penal Code states that whoever commits the offence of marrying someone without
disclosing the fact of his/her second marriage is punishable with imprisonment which may
extend to ten years, and shall also be liable to fine. Also, in the case of Abbayolla M. Subba
Reddy v. Padmamma The defendant had two living wives, The second wife was claiming
maintenance, A bigamous marriage is illegal under Hindu Laws, The validity of the marriage of
the defendant with his second wife was in question. The High Court of Andhra Pradesh held
that If a man has two wives, the marriage with a second wife will be void ab initio as Hindu laws
prohibit bigamous marriage and the parties never actually become husband and wife.
Therefore, the second wife will have no entitlement to any kind of maintenance as the marriage
is void ab initio. In addition to this ‘B’ also filed appeal on the ground that he is wedded with
‘W’ and the couple even has a child and therefore ‘G’ is not entitled to any maintenance so the
answer to this question is also the same because the second marriage is void ab initio and it
does not affect the ‘G’s right of maintenance but the contention about the child’s right is that
Section 16 of the Hindu marriage act states that any child, who would have been legitimate if
the marriage would have been valid, shall be legitimate. Thus, any child born out of void
marriage is legitimate and thus shares equal rights in the property of their father/mother. This
provision is also applicable to children born out of a live-in relationship. Children born out of
void marriage get equal rights as the children of the first wife in self-acquired and ancestral
property of their father. But they cannot inherit ancestral joint family properties. Children of
void marriage will get share only in their father’s/mother’s property. In Revanasiddappa vs
Mallikarjun case, Justices G.S. Singhvi and A.K. Ganguly ruled that children from a second wife
had rights to their father’s ancestral property. Section 16(3) of the Hindu Marriage Act as
amended, does not impose any restriction on the property right of Illegitimate Child except
limiting it to the property of their parents. Therefore, such children will have a right to
whatever becomes the property of their parents whether self-acquired or ancestral.