1st National Moot Court Competition CLC-J, 2023 MEMORIAL ON BEHALF OF RESPONDENT

TEAM CODE: TC-36

1st NATIONAL MOOT COURT COMPETITION CLC -J , 2023

BEFORE THE HON’BLE SUPREME COURT OF INDIA

APPELLANT JURISDICTION

IN THE MATTER OF:

Mr. Rajiv Petitioner

Versus

State Of Punjab Respondent

Special Leave Petition No. __/_2023_

ON SUBMISSION TO THE HON’BLE SUPREME COURT OF INDIA

UNDER ARTICLE 136 OF THE INDIAN CONSTITUTION, 1950

Written Submission on behalf of Respondent

Counsel on behalf of Respondent

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS………………………………………………………….………2

TABLE OF CONTENTS………………………………………………………………............4

INDEX OF AUTHORITIES……………………………………………………………..........5

STATEMENT OF JURISDICTION……………………………………………………......…8

ISSUES RAISED …………………………………………………………………………..…9

FACTS OF THE CASE……………………………………………………………...........…10

SUMMARY OF THE ARGUMENTS………………………………………………........…11

ARGUMENTS ADVANCED……………………………………………………….........…13
I. Whether The Hon’ble High Court Of Punjab & Haryana Was Justified In Granting
Protection To The Estranged Couple Under Article 21 Of The Indian Constitution Or
Not?...................................................................................................................................13

II. Whether The Order Granting The Custody Of The Estranged Wife To The Petitioner
Immune Him From The Subsequent Offences, If Any Or
Not?...................................................................................................................................16

III. Whether The FIR Against Mr Rajiv Is Liable To Be Quashed Or

Not?.................................................................................................................................. 20

IV. Whether The Hon’ble High Court Under The Shield Of Article 21 Of The Indian
Constitution Indirectly Promoted Child Marriage And Bypassed Any Other Special
Statutes?............................................................................................................................23

V. Whether In Such Cases The Personal Laws Take Over Or It Is The Special Statutes That
Take The Lead?.................................................................................................................25

PRAYER…………………………………………………………………………….……….29

LIST OF ABBREVIATIONS

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Abbreviations Expansion

& And

❡ Paragraph

AIR All India Reporter

ALJ Administrative law judges

Art. Article

BOMLR Bombay Law Reporter

CriLJ Criminal law Journal

CRPC Criminal Procedure Code

CRWP Criminal Writ Petition

HMA Hindu Marriage Act

Hon’ble Honourable

IPC Indian Penal Code

Ors. Others

P&H Punjab and Haryana

PCM Prohibition of Child Marriage

POCSO Protection of Children from the sexual Offences

SCALE Supreme Court Almanac

SCC Supreme Court Case

SCR Supreme Court Reporter

Sec. Section

SMA Special Marriage Act

u/s Under Section

UOI Union of India

v. Versus

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INDEX OF AUTHORITIES

CASES REFERRED

S. No. Supreme Court Cases Citation

Gian Singh v. State of Punjab and Anr 10 SCC 303

1.

Gurbaksh Singh Sibbia v. the State of Punjab (1980) 2 SCC 655

2.

I.J Rao, Asst. Collector of Customs v. Bibhuti (1989) 3 SCC 202

3.
Bhusan Bagh,
Independent Thought v. Union of India (2017) 10 SCC 800
4.

Indru Ramchand Bharvani v. Union of India, (1988) 4 SCC 1

5.

S. Varadrajan v. State of Madras AIR 1965 SC 942.

6.

State Of Karnataka vs S Raju AIR 1994 SC 222

7.

Suresh Chandra Nanhorya v. Rajendra Rajak (2006) 7 SCC 800

8.

Swadeshi Cotton mills v. U.O.I, AIR 1981 SC 818.

9.

S. No. High Court Cases Citation/ Appeal No.

1. Abdul Khader &. Others v. K.Pechiammal ((2015) 2 MLJ (Crl) 210).

2. Bal Kissen Kejriwal v. Collector of Custom AIR 1962 Cal 460.

3. Baltej Singh vs. the State of Rajasthan RLW 2007 (2) Raj 1395

4. Ejaj Ahmad vs State of Jharkhand 2010 Cr LJ. 1953(Jha)

5. K.S Kiran Hegde vs the State of Karnataka Criminal Appeal No. 2602 of
2018

6. Madan Sharma v. B.S.E Board AIR 1971 Pat 371.

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7. Mrs. Tahra Begum v. Province of Delhi & Ors. 2013 (1) RCR (Civil) 798.

8. Nayaz Pasha vs the State Of Karnataka Criminal Appeal No.1173 of

2021.

9. Pawan vs State of Uttaranchal Criminal Appeal No. 1654 of

2013.

10. Revision v. Employee Proceeded Against, AIR 1981 SC 1626

11. Shobha and Anr. vs. State of Rajasthan and Ors AIR 1963 All 29

12. Shri Vasant Waman Pradhan vs. Dattatraya 2004 (1) MhLj 487
Vithal Salvi

13. Yunusbhai Usmanbhai Shaikh v. the State of 2016 CriLJ 717

Gujarat

S. No International Court Cases Citation

1. Russel v. Duke of Norfolk 1949 1 All ER 109

2. Selvarajan v. Race Relations Board, 1 All ER 12 (1976.

3. Stafford vs Minister of Health KB 621 1946.

STATUES INCORPORATED

S.NONo NAME OF THE ACT SECTION INVOLVED

1.
Hindu Minority and Guardianship Act, 1956.
2.
Personal Law (Shariat) Application Act, 1937.
3. Sec 3and 4
Protection of Children from Sexual offences,
2012.
4. Sec 2(d)
Protection of Human Rights Act, 1993.
5.
Special Marriage Act, 1954.

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6. Sec 9 and 10
The Child Marriage Prohibition Act, 2006.
7. Article 21, 226 and 132
The Constitution of India, 1949.
8. Sec 53A and 482
The Criminal Procedure Code, 1973.
9. Sec 5(3)
The Hindu Marriage Act, 1955.
10. Sec 51,
The Indian Evidence Act, 1872.
11. Sec 361 and 506
The Indian Penal Code, 1860.

WEB RESOURCES REFERRED

S. No Web Resources Websites

1. Live Law https://www.livelaw.in/
2. SCC Online https://www.scconline.com/
3. Manupatra https://www.manupatrafast.com/?t=desktop
4. Lexis Nexis https://www.lexisnexis.com/

S. No Books and Author

1. MP Jain & SN Jain’s Principles of Administrative Law, 406 (Dr. Shakil Ahmad
Khan, 7th ed., 2011).

STATEMENT OF JURISDICTION

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THE COUNSEL FOR THE RESPONDENT, HEREBY HUMBLY SUBMIT TO THIS

HON’BLE COURT’S JURISDICTION UNDER ARTICLE 136 OF THE CONSTITUTION
OF THE UNION OF INDIA.

Article 136 of the Indian Constitution, 1950 reads as,

“136. Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its
discretion, grant special leave to appeal from any judgment, decree, determination,
sentence or order in any cause or matter passed or made by any court or tribunal in
the territory of India

(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or

order passed or made by any court or tribunal constituted by or under any law
relating to the Armed Forces.” 1

1
The Constitution of India,1950, art. 136.

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ISSUES RAISED

ISSUE 1.

WHETHER THE HON’BLE HIGH COURT OF PUNJAB & HARYANA WAS

JUSTIFIED IN GRANTING PROTECTION TO THE ESTRANGED COUPLE UNDER
ARTICLE 21 OF THE INDIAN CONSTITUTION OR NOT?

ISSUE 2.

WHETHER THE ORDER GRANTING THE CUSTODY OF THE ESTRANGED WIFE

TO THE PETITIONER IMMUNE HIM FROM THE SUBSEQUENT OFFENCES, IF
ANY OR NOT?

ISSUE 3.

WHETHER THE FIR AGAINST MR. RAJIV IS LIABLE TO BE QUASHED OR NOT?

ISSUE 4..

WHETHER THE HON’BLE HIGH COURT UNDER THE SHIELD OF ARTICLE 21

OF THE INDIAN CONSTITUTION INDIRECTLY PROMOTED CHILD MARRIAGE
AND BY PASSED ANY OTHER SPECIAL STATUTES?

ISSUE 5..

WHETHER IN SUCH CASES THE PERSONAL LAWS TAKE OVER OR IT IS THE

SPECIAL STATUTES THAT TAKES THE LEAD?

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FACTS OF THE CASE

-Part I- INTRODUCTION

The case revolves around Ms. Jasmine, a 16-year-old Muslim girl, and Mr. Rajiv, a 28-year-
old Hindu medical professional. Ms. Jasmine, a diligent student, attended a science seminar
where she was captivated by Mr. Rajiv's knowledge and personality. She sought his guidance,
which later evolved into a romantic relationship. Facing opposition from Ms. Jasmine's parents,
the couple eloped and married according to Hindu customs..

-Part II- High Court Protection

After seeking legal advice, the couple filed a writ petition in the Hon'ble High Court of Punjab
& Haryana, requesting protection from potential honor killing. The court granted their request
under Article 21 of the Indian Constitution, emphasizing the importance of fundamental rights.

Part III: Troubled Marriage

Living together, the couple's relationship deteriorated, leading Ms. Jasmine to return to her
parents. Mr. Rajiv made no efforts to reconcile, prompting Ms. Jasmine to file an FIR against
him under various sections, including Section 503 of the Indian Penal Code (IPC), Section 3
and 4 of POCSO, and Sections 9 and 10 of the Child Marriage Prohibition Act.

Part IV Medical Examination and Bail

During the legal proceedings, a medical examination suggested the possibility of sexual
intercourse. Mr. Rajiv applied for anticipatory bail, which was initially denied by the District
and Session Court but later granted by the High Court.

Part V: Quashing of FIR

Mr. Rajiv filed an application under Section 482 of the CrPC to quash the FIR. He argued that
the FIR should be quashed based on prior court orders and questioned the charges. The High
Court refused to quash the FIR, emphasizing that the protection order didn't exempt them from
other legal actions.

Part VI: Supreme Court Intervention

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Frustrated by the High Court’s decision, Mr. Rajiv appealed to the Hon’ble Supreme Court of
India. The Supreme Court granted a Special Leave to Petition under Article 136 of the Indian
Constitution, recognizing the gravity of the situation. This allowed for the examination of legal
complexities, particularly in the absence of specific legislation in such cases. The case thus
raises important questions about personal law, special statutes, and individual rights.

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SUMMARY OF ARGUMENTS

I. WHETHER THE HON’BLE HIGH COURT OF PUNJAB & HARYANA WAS

JUSTIFIED IN GRANTING PROTECTION TO THE ESTRANGED COUPLE UNDER
ARTICLE 21 OF THE INDIAN CONSTITUTION OR NOT?

It is most humbly submitted before the Hon’ble Supreme Court of India that the Hon’ble High
Court of Punjab & Haryana was not justified in granting protection to the estranged couple
under Article 21 of the Indian Constitution because the essential element of Article 21 was not
satisfied for granting the protection because there was no threat to the life and their personal
liberty was also not curtailed. Therefore, there was no need for protection. Apart from this,
during the High Court hearing, the Court has not followed the principle of Audi alteram parterm
which is one of the ingredients of the Natural Justice principle. Henceforth, the Hon’ble
Supreme Court held the protection unjustified.

II. WHETHER THE ORDER GRANTING THE CUSTODY OF THE ESTRANGED WIFE
TO THE PETITIONER IMMUNE HIM FROM THE SUBSEQUENT OFFENCES, IF
ANY OR NOT?

It is humbly submitted before the Hon’ble Supreme court of India that the Order granting the
custody of the estranged wife to the petitioner immune him from the subsequent offences. With
this, the HC granted the custody to Mr. Rajiv but, she was not the wife of Mr. Rajiv as per the
PCMA. Therefore, the HC cannot grant the custody to Mr. Rajiv. In addition, Mr. Rajiv ignores
the order of HC and committed all the subsequent offences by taking advantage of her
adolescence. All the presented arguments and evidence prima facie constitutes that all the
subsequent offences, executed by Ms. Jasmine in the FIR, were committed by Mr Rajiv.

III. WHETHER THE FIR AGAINST MR. RAJIV IS LIABLE TO BE QUASHED OR NOT?
It is most humbly submitted before the Hon’ble Supreme Court of India that the filed FIR
should not be quashed as the evidence and facts prima facie constitute a crime against Mr.
Rajiv. He was major and mature enough to take a wise decision but, he never contemplated the
decisions of Ms Jasmine in fact he supported her at every point of time for the completion of
his ulterior motive. In this way, he induced her against her own parents and took the advantage

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of her adolescence. In addition to that, the medical Report also constitutes that Mr. Rajiv has
committed Sexual assault. Therefore, it is concluded that the filed FIR should not be liable to
quash.

IV. WHETHER THE HON’BLE HIGH COURT UNDER THE SHIELD OF ARTICLE 21
OF THE INDIAN CONSTITUTION INDIRECTLY PROMOTED CHILD MARRIAGE
AND BY PASSED ANY OTHER SPECIAL STATUTES?
It is most humbly submitted before the Hon’ble Supreme Court of India that the Hon’ble HC
indirectly promoted Child Marriage in the shield of Article 21 as Ms Jasmine was the
Child according to section 2 (a) of PCMA 2006 and the marriage of Mr Rajiv and Ms Jasmine
was commenced due to the undue influence of Mr Rajiv over her. Therefore, this child marriage
is void as per section 12 of PCMA, 2006. In addition, Hon’ble HC gives preference to the
protection in the absence of threat and ignorance of the evidentiary value of documents over
Ms Jasmine ’s right to be fully developed and right to marry freely which leads to subsequent
offences on her. In this way, the HC curtail rights of Article 21 in the shield of Article 21 itself.

V. WHETHER IN SUCH CASES THE PERSONAL LAWS TAKE OVER OR IT IS THE

SPECIAL STATUTES THAT TAKES THE LEAD?

It is most humbly submitted before the Hon'ble Supreme Court of India that Personal laws
should take the lead in such cases because Special laws are secular in Nature and the Indian
Constitution also gives priority to secularism. Apart from this, Special laws deal with the well-
being and welfare of the Children whereas, Personal Laws curtails the fundamental as well as
human rights of the Children Such as the Right to Education, the Right of the child to be fully
developed, empowerment and so on. In addition to that, Personal laws do not contain any
general provisions related to such cases therefore, the Special provisions should take leads as
compared to Personal laws.

ARGUMENTS ADVANCED

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ISSUE 1.WHETHER THE HON’BLE HIGH COURT OF PUNJAB & HARYANA WAS
JUSTIFIED IN GRANTING PROTECTION TO THE ESTRANGED COUPLE UNDER
ARTICLE 21 OF THE INDIAN CONSTITUTION OR NOT?

1. It is most humbly submitted before the Hon’ble Supreme Court of India that the Hon’ble High
Court of Punjab & Haryana was not justified in granting protection to the estranged couple
under Article 21 of the Indian Constitution because such protection was not in compliance
because firstly Private Disputes doesn’t fall under the ambit of Writ Jurisdiction(1.1) secondly
Principle of Natural Justice has been violated (1.2)

Article 21 of the Indian Constitution reads as,

“21. Protection of life and personal liberty No person shall be deprived of his life or personal
liberty except according to procedure established by law”.2

(1.1) PRIVATE DISPUTES DOEN’T FALL UNDER THE AMBIT OF WRIT

JURISDICTION

It is humbly and most respectfully submitted in the court that Hon’ble High Court of Punjab &
Haryana was not justified in granting protection to the estranged couple under Article 21 of the
Indian Constitution because such protection was not in compliance with the provisions of the
law . fundamental rights incorporated under part iii of Indian constitution are enforceable
against the state and not the private individuals . supreme court in the case of Kiran Rawat
and anr. V. state of UP3 held that Writ jurisdiction being extraordinary jurisdiction is not
made to resolve such type of dispute between two private parties. We believe that it is a social
problem which can be uprooted socially and not by the intervention of the Writ Court in the
garb of violation of Article 21 of the Constitution of India unless harassment is established
beyond doubt. If there is any real grievance of a live-in couple against their parents or relatives
who are allegedly interfering with their live-in status which goes to such an extent that there is
a threat of life, they are at liberty to lodge an F.I.R under Section 154 (1) or Section 154 (3)
Cr.P.C, with the Police, move an application under section 156 (3) before the competent Court
or file a complaint case under Section 200 Cr.P.C.

2
The Constitution of India, art. 21.
3 APPLICATION U/S 482 No. - 1454 of 2020

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Since from the facts of the case , the aggrieved party approached the high court under article
21 of Indian constitution is not as per the provisions of law . therefore, it is submitted that
Hon’ble High Court of Punjab & Haryana was not justified in granting protection to the
estranged couple under Article 21 of the Indian Constitution.

(1.2) Principal of Natural Justice has been violated.

2. Natural justice has been held as an inseparable ingredient of fairness and reasonableness. 4 The
fair hearing has the following two elements viz:

a. Audi alteram partem (the opportunity of hearing being given) and;

b. that such opportunity is reasonable5

3. The preliminary enquiry is not a substitute for full-fledged enquiry.6 It is necessary that the
courts avoid drawing unnecessary technical and artificial distinctions just to deny procedural
safeguards to the people. 7 Non-observance of natural justice is itself prejudice to any man and
proof of denial of natural justice is unnecessary. 8 In addition to this, where conclusions are
controversial, howsoever slightly, and penalties discretionary, natural justice is a must. 9 In
addition to this, the court granted protection to the couple without looking into the evidentiary
value of the evidence placed on record as the same stated in ❡3 of the facts.
4. It is a settled provision of law that a pre-decisional notice forms part of a fair hearing. 10 In the
landmark case of Russel v. Duke of Norfolk,11 the Hon’ble Court held that the standard of
natural justice is that the person concerned should have a reasonable opportunity of presenting
his case. Thus, it is the humble contention that if a person is subjected to pains or penalties, it
is the fundamental rule that he should be informed of the case against him and afforded a fair
opportunity of answering it. 12 With respect to this, Ms. Jasmine 's parents were not given an
opportunity to be heard and granted protection by violating the Principle of Natural Justice.
5. In addition to this, Article 21 will be considered as the ground if there is a threat to life. But,
the couple sought protection from the court because they were “sensing” threats to their life as
the same stated in ❡2 line 10 of the facts. But, the mere “sense” of threat cannot make an

4
AIR(2006) 7 SCC 800.
5
AIR (1988) 4 SCC 1.
6
AIR 1981 SC 1626.
7
AIR 1971 Pat 371.
8
AIR 1981 SC 818.
9
MP Jain & SN Jain’s Principles of Administrative Law, 406 (Dr. Shakil Ahmad Khan, 7th ed., 2011).
10
AIR (1989) 3 SCC 202.
11
1949 1 All ER 109.
12
Selvarajan v. Race Relations Board, 1 All ER 12 (1976. House of Lords).

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accused to Ms Jasmine ’s parents. Furthermore, her parents were not at all a threat to their life
as the same mentioned in the facts. There was no requirement for the protection granted by the
Hon’ble HC of Punjab and Haryana.
6. With respect to this, citing some authorities would be fruitful:
➢ In the case of Stafford v Minister of Health,13 it was held that no evidence should be
received in the absence of the other party and if any such evidence is recorded then it is
the duty of the authority to make it available to the other party.14

➢ In the recent case of Shobha and Anr. vs. the State of Rajasthan and Ors.15 the Hon'ble
High Court of Rajasthan denied police protection to the runaway pair, citing that there is
no proof on record that they were under threat from their family. 16

7. In the light of presented arguments, facts and authorities cited, it is concluded that the present
issue does not satisfy the basic elements of Article 21 as there was no threat to the life and
personal liberty of Mr. Rajiv and Ms. Jasmine in fact he was the one who put undue influence
on her. Then, she filed for protection before the Hon’ble court believing her own parents, a
threat to them which was not the true scenario. Even, her parents were not given a chance to
be heard in accordance with the principles of Natural Justice by the Punjab and Haryana HC.
Therefore, the plea for protection by the estranged couple had no true ground for it and should
be held as unjustified.

Thus, The Honourable High Court of Punjab and Haryana was not justified in granting
protection to estranged couple.

ISSUE2.WHETHER THE ORDER GRANTING THE CUSTODY OF THE

ESTRANGED WIFE TO THE PETITIONER IMMUNE HIM FROM THE
SUBSEQUENT OFFENCES, IF ANY OR NOT?
It is humbly submitted before the Hon’ble Supreme Court of India that the order granting
custody of the estranged wife to the petitioner does not immune him from the subsequent
offence because firstly liable under Section 361 and Section 503 of the Indian Penal Code(2.1)

13
KB 621 1946.
14
Stafford vs Minister of Health 1946, available at: https://blog.ipleaders.in/audi-alteram-partem/
15
AIR 1963 All 29.
16
Couples can’t seek police protection as a matter of rights, must muster the audacity to persuade their families:
Rajasthan High Court ,available at https://www.livelaw.in/news-updates/rajasthan-high-court-denies-police-
protection-married-couple-189314.

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secondly Section 3 and 4 of Protection of Children from Sexual Offences, 2012 (2.2) thirdly
Section 9 and 10 of Prohibition of Child Marriage Act, 2019 (2.3)

(2.1) LIABLE UNDER SECTION 361 AND 503 OF THE INDIAN PENAL CODE,
1860.

Section 361 of the IPC reads as,

361. Kidnapping from lawful guardianship.—Whoever takes or entices any minor under 1[sixteen]
years of age if a male, or under 2[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.17

8. It is clear from the facts that Ms. Jasmine was a minor as she was under the age of 18 years and
Mr Rajiv, an eminent person, is completely unaware of basic legal principles is hard to believe.
He purposely married her because he knew the marriage would not be valid. It was just a way
to get Ms Jasmine to participate in his decision and prepare for sexual relations with her. In
this way, he induced Ms. Jasmine and kept her away from her lawful guardian without their
consent.
➢ Meaning of the use of the word “keeping” in the context connotes the idea of charge,
protection, maintenance and control; further, the guardian’s charge and control appear to
be compatible with the independence of action and movement in the minor, the guardian’s
protection and control of the minor being available, whenever the necessity arises. On a
plain reading of this section, the consent of the minor who is taken or enticed is wholly
immaterial: it is only the guardian’s consent that takes the case out of its purview. 18
• Section 503 of the IPC reads as,
503.Criminal intimidation.—Whoever threatens another with any injury to his person, reputation or
property, or to the person or reputation of any one in whom that person is interested, with intent to
cause alarm to that person, or to cause that person to do any act which he is not legally bound to do,
or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution
of such threat, commits criminal intimidation.19

17
Indian Penal Code, 1860, S. 361.
18
AIR 1965 SC 942.
19
Indian Penal Code, 1860, S. 503.

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9. Mr. Rajiv from the beginning manipulated Ms. Jasmine to take advantage of her adolescence.
He influenced Ms. Jasmine into marrying him. He emotionally exhausted a minor girl and
sexually exploited here afterwards. The same is also mentioned in para 4 He had a malafide
intention from the start and intention is the fundamental ingredient in the offence of section
503 under IPC. Intention is the soul of criminal intimidation. It needs to be gathered by the
surrounding circumstances. 20

(2.2)SECTION 3 AND 4 OF PROTECTION OF CHILDREN FROM SEXUAL

OFFENCES ACT, 2012.

• Section 3 of POCSO Act, 2012: Penetrative sexual assault

In this Act, unless the context otherwise requires, -A person is said to commit "penetrative sexual
assault" if-“…(c) he manipulates any part of the body of the child so as to cause penetration into the
vagina, urethra, anus or any part of the body of the child or makes the child to do so with him or any
other person; or…”.21

• Section 4 of POCSO Act, 2012: Punishment for penetrative sexual assault

Whoever commits a penetrative sexual assault shall be punished with imprisonment of either
description for a term which shall not be less than *ten years but which may extend to imprisonment
for life, and shall also be liable to fine”…..22

10. In the case of Manish Kumar And Another vs State Of U.P.23 And 7 Others, the court
addressed the profound impact of the "Independent Thought" decision, which prohibited any
lawful marriage or matrimonial alliance for minor girls, including live-in relationships with
both adults and minor boys. Consequently, Section 6(c) of the Hindu Marriage Act, 1956,
regarding the husband's role as the natural guardian of a minor Hindu wife, became obsolete.
11. The court observed that these legal developments were reflective of evolving social values,
drawing a parallel with a similar shift in values in England, as demonstrated in the case of R v
Clarke (1949)24 . The court also highlighted Section 42-A of the Protection of Children from
Sexual Offences (POCSO) Act, which supplements existing laws while retaining an overriding
effect in cases of inconsistency. The POCSO Act defines a "child" as under 18 years and

20
Shri vasant waman pradhan vs. dattatraya vithal salvi, 2004 (1) MhLj 487.
21
Protection of Children from Sexual Offences Act, 2012, (Act 32 of 2012) S. 3.
22
Protection of Children from Sexual Offences Act, 2012 (Act 32 of 2012), S. 4.
23 HABEAS CORPUS WRIT PETITION No. - 451 of 2020
24 (1949) 2 All ER 448

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outlines definitions of "penetrative sexual assault" and "aggravated penetrative sexual assault,"
which are analogous to the Indian Penal Code (IPC) provisions.
12. Notably, a significant discrepancy exists between the POCSO Act and the IPC, as the former
lacks an IPC provision's exception regarding consensual sex with a man's own "wife" under 15
years. In such cases, the POCSO Act prevails, in line with Section 42-A. The passage
emphasizes the evolving legal landscape, the dominance of the POCSO Act in child protection,
and the specific inconsistency between the two legal frameworks concerning sexual offenses
against minors.It is imperative from the facts that Ms. Jasmine’s medical examination which
holds a great evidentiary value as stated in Issue 3 also, confirms sexual assault on her. Mr.
Rajiv is a man of a loose and questionable character who took advantage of Ms. Jasmine ’s
young age and beauty without her due consent.

13. In this regard, citing some authorities would be fruitful:

➢ This multiplicity of laws on child marriage has created confusion and has done injustice
to the minor by legalizing sexual exploitation. The judges held it is considered under
aggravated penetrative sexual assault for the purpose of POCSO. Sexual intercourse within
child marriage that is non-consensual is rape.25
➢ In Yunusbhai Usmanbhai Shaikh v. the State of Gujarat,26 Gujarat High Court has
now held that a Muslim girl below the age of 18 years cannot marry since it is a violation
of the provisions of the aforesaid Prohibition of Child Marriage Act, 2006. 27

(2.3) SECTION 9 AND 10, PROHIBITION OF CHILD MARRIAGE ACT, 2007.

• Section 9 of PCM Act reads as,

Punishment for a male adult marrying a child.—Whoever, being a male adult above. eighteen years of
age contracts a child marriage shall be punishable with rigorous imprisonment which may extend to
two years or with a fine which may extend to one lakh rupees or with both.28
• Section 10 of PCM Act reads as,
Punishment for solemnising a child marriage.—Whoever performs, conducts, directs or abets any child
marriage shall be punishable with rigorous imprisonment which may extend to two years and shall be

25
Independent Thought v. Union of India, 10 SCC 800.
26
2016 CriLJ 717
27
Yunusbhai Usmanbhai Shaikh vs. the State of Gujrat.
28
The Prohibition of Child Marriage Act, 2006 (Act 6 of 2007), S. 9.

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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.29

14. It can be deduced from the facts of the case that Ms. Jasmine was incompetent legally to take
the decision like marriage for herself. Mr. Rajiv being a major married to her with complete
knowledge of this situation and committed the offence of child marriage under PCMA.

15. Following authorities prove the contention mentioned above:

➢ The girl’s constitutional and human rights are violated by child marriage. The age below
eighteen is considered to be incompetent to make decisions and choose between right and
wrong The government needs to implement and strengthen child marriage laws. The
judgement settled harmonization of the legal framework and addressed areas of ambiguity.
Government cannot use tradition as an excuse to justify child marriage. 30

➢ In Yunusbhai Usmanbhai Shaikh v. the State of Gujarat,31 Gujarat High Court has now
held that a Muslim girl below the age of 18 years cannot marry since it is a violation of the
provisions of the aforesaid Prohibition of Child Marriage Act, 2006. 32

16. Therefore, it can be concluded that the custody granted of the estranged wife does not immune
Mr. Rajiv from the subsequent charges. When the provisions of the POCSO Act and PCM Act,
as well as the IPC, are implemented, the crime of kidnapping a child under section 361 IPC, as
well as the offence of aggravated penetrative sexual assault under sections 3 and 4, as well as
the attempt and abetment of such an offence under sections 9 and 10 of the PCM Act, is
established.

Thus, the order granting custody of the estranged wife to the petitioner does not immune
him from the subsequent offence.

ISSUE 3.WHETHER THE FIR AGAINST MR. RAJIV IS LIABLE TO BE QUASHED

OR NOT?

It is humbly submitted before the honourable court that the FIR against Mr. Rajiv is not liable
to be quashed because firstly The intention of Mr. Rajiv was malafide and the nature of the
offences is serious (3.1) secondly Evidentiary value of Medical Examination (3.2)

29
The Prohibition of Child Marriage Act, 2006 (Act 6 of 2007), S. 10.
30
10 SCC 800.
31
2016 CriLJ 717
32
Yunusbhai Usmanbhai Shaikh vs. the State of Gujrat

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• Section 154 of the CrPC, 1973 deals with the FIR reads as,
“154. Information in cognizable cases.
(1) Every information relating to the commission of a cognizable offence, if given orally to an
officer in charge of a police station, shall be reduced to writing by him or under his direction, and be
read Over to the informant; and every such information, whether given in writing or reduced to writing
as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a
book to be kept by such officer in such form as the State Government may prescribe in this behalf.”33

(3.1) THE INTENTION OF MR. RAJIV WAS MALAFIDE AND THE NATURE OF
THE OFFENCES IS SERIOUS.

17. It is most humbly submitted before the Hon’ble supreme court of India that the FIR against Mr
Rajiv should not be quashed as given facts and evidence prima facie constitute a serious crime
against him.

18. He had malafide intentions behind his actions from the beginning and the same can be
established by the following events of the facts:
• Mr. Rajiv had feelings for Ms. Jasmine even after knowing their age difference and he was
happy to be in a relationship with her. Being a major of 28 years old and more rational to
make wise decisions, he never contemplated their relationship.

• Ms Jasmine 's beauty has always intrigued Mr Rajiv, he took benefit of her adolescence
physically as well as emotionally. Seeing that Ms Jasmine 's parents would not let him
fulfil his ulterior motive, he manipulated her to elope with him.

• While he was aware that her age and family might pose some disadvantages as a result of
their marriage, he still fully supported her decision to marry him. When the time came, he
manipulated her into filing for protection against her own parents.

19. With respect to this contention, citing some authorities would be fruitful.
➢ Manohar vs the State of Karnataka34, - rape of a minor cannot be quashed under
section 482 of the Criminal Procedure Code.The concept of marital rape also would
have to be considered in that a husband cannot force himself on his wife against her
wishes. An act of rape being one of the most heinous offenses, defiling a person both

33
The Criminal Procedural Code, 1973 (Act 2 of 1974), S. 154.
34CRIMINAL APPEAL NO. 564 OF 2021
(Arising out of S.L.P.(Crl.) No. 3050 of 2021)

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mentally and physically, cannot be countenanced on the basis of the arguments

advanced; any sexual act without the consent of the other party be it a man or woman
would amount to rape subject to the same being proved during the course of the trial.”
➢ In Gian Singh v. the State of Punjab and Anr.35: serious offences of mental depravity
or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the
victim or victim's family and the offender have settled the dispute. Such offences are
not private in nature and have a serious impact on society. 36
➢ In Gurbaksh Singh Sibbia v. the State of Punjab,37 It was held in this case that the
discretion under Section 438 cannot be exercised with regard to offences punishable
with death or imprisonment for life. 38
➢ In the case of K.S Kiran Hegde vs the State of Karnataka:39 According to Justice
K.N Phaneendra, “When the allegation constitutes the offences, the FIR cannot be
quashed because all the facts regarding the defence of the accused have to be thrashed
out to find out the truth or falsity of the allegations during the course of the
investigation.”40

(3.2) EVIDENTIARY VALUE OF MEDICAL EXAMINATION.

20. As per ❡4 of the facts, the medical Examination report of Ms. Jasmine confirmed the Sexual
assault on her, which was conducted immediately after lodging of FIR. The evidentiary value
of a medical examination is very huge in Sexual assault cases.

• Baltej Singh vs. the State of Rajasthan,41 Justice Vijay Bishnoi, the allegations contained
in the impugned FIR do constitute a Prima facie case therefore the impugned FIR cannot
be quashed.42

35
(2012) 10 SCC 303.
36
Court has inherent power to quash criminal proceedings on satisfying itself that the parties want to live
peacefully, available at : https://www.scconline.com/blog/post/2018/06/22/court-has-inherent-power-to-quash-
criminal-proceedings-on-satisfying-itself-that-the-parties-want-to-live-peacefully/.
37
(1980) 2 SCC 655.
38
Gurbaksh Singh Sibbia Etc vs State Of Punjab on 9 April, 1980 available at:
https://indiankanoon.org/doc/1308768/
40
K.S Kiran Hegde vs State of Karnatka on June 2018 available at:
https://www.casemine.com/judgement/in/5d9199b3714d587fe94e7db2).
41
1984 RLW 210 (RAJ).
42
Baltej Singh And Ors. vs State of Rajasthan And Ors. o

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• In the case of State of Karnataka v. S.Raju,43 the Karnataka High court upheld that even
in the case of absence of medical evidence, the rape accused can be convicted. Therefore,
corroboration with medical reports is not necessary in every case. 44

• Furthermore, the importance of medical evidence was highlighted in the case of Pawan v
State of Uttaranchal45 where the medical evidence proved beyond reasonable doubt that
the victim died of a homicidal death and that she was raped before being murdered. In one
case, an accused who was tried for the rape of a married girl who was below 16 years of
age was not convicted due to the absence of corroborative medical evidence. 46

• It is often difficult for children to testify conclusively due to their inability to provide
conclusive evidence. An expert medical witness' testimony is therefore relevant in such
situations under sections 45 to 51 of the IEA. The medical professional does provide a
conclusive opinion on sexual abuse based on the history of the child, their statements and
after the examination.

21. Henceforth, in the light of arguments presented and authorities cited, it has been concluded that
Mr. Rajiv took advantage of Ms. Jasmine ’s adolescence by manipulating her against her own
parents with malafide intention and committed cognizable offences which have been proved
by the medical examination report. Therefore, the Hon’ble Court should not ignore the
evidentiary value of the Medical report and give validity to the filed FIR by not quashing it.

Thus, FIR against Mr. Rajiv is not liable to be quashed.

ISSUE 4.WHETHER THE HON’BLE HIGH COURT UNDER THE SHIELD OF

ARTICLE 21 OF THE INDIAN CONSTITUTION INDIRECTLY PROMOTED CHILD
MARRIAGE AND BY PASSED ANY OTHER SPECIAL STATUTES?
22. It is most humbly submitted before the Hon’ble Supreme Court of India that the Hon’ble High
Court under the Shield of Article 21 of the Indian Constitution indirectly promoted Child
Marriage, because firstly marriage between Mr. Rajiv and Ms. Jasmine was void as per Section
12 of PCMA, 2006 (4.1) secondly

43
(2007) 11 SCC 490.
44
State Of Karnataka vs S Raju on 27 September, 2019 available at: https://indiankanoon.org/doc/23353741/
45
Criminal Appeal No. 1173 of 2013.
46
Criminal Appeal No. 1654 of 2013.

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23. According to section 2 (a) of PCMA, 2006, Ms. Jasmine was a child as she was not attended
to the age of 18 years.

• Section 2(a) of PCMA, 2006 reads as,

“child” means a person who, if a male, has not completed twenty-one years of age, and if a female, has
not completed eighteen years of age;47

(4.1) MARRIAGE BETWEEN MR. RAJIV AND MS. JASMINE WAS VOID AS PER
SECTION 12 OF PCMA, 2006.

24. In the light of the given facts from ❡1 and 2, Mr Rajiv put undue influence on Ms Jasmine.
From the very beginning, he knew that Ms Jasmine was a studious and focused girl & it would
not be easy to distract her so he tried to influence her in the name of career guidance. Mr Rajiv
was warned multiple times by Ms Jasmine 's parents about this, but none of these things seemed
to change him. He manipulated Ms Jasmine by making her believe that her own parents were
against their life. And, according to Section 12 (a) &(b) of the PCMA, 2006, the marriage of a
minor child is void if one entices or induced the child and takes away from the lawful guardian
and the same has been done by Mr Rajiv.

➢ The Supreme Court's decision for the case of Mrs. Tahra Begum v. Province of Delhi and
Others48 about giving value to the PCMA over any other law in the matters of child
marriage gives a significant explanation and could have a huge effect assuming it is spread
and upheld. Before this decision high courts had adopted conflicting approaches
concerning the situation with the PCMA. These conflicting decisions have taken the basic
fundamental rights away from minors into child marriage. 49

➢ The Supreme Court of India has encouraged the Government of India and state
governments to develop stronger initiatives for ensuring the effective implementation of
the PCMA, criticizing the Act as being “breached with impunity,” and suggesting its
review. The Supreme Court stated that “The time has come when this Act needs serious
reconsideration, especially in view of the harsh reality that a lot of child trafficking is
taking place under the garb of marriage including child marriage. It will be
counterproductive for the reforms and amendments to the PCMA if the court encourages

47
The Prohibition of Child Marriage Act, 2006 (Act 6 of 2007), s. 2(a).
48
2013 (1) RCR (Civil) 798.
49
Mrs. Tahra Begum v. Province of Delhi and Others, 2012

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child marriage under Article 21 in these cases. Crime will never decrease but will
increase.50

25. The Supreme Court of India has recognized that child marriage is discriminatory and
constitutes a violation of women’s and girls’ constitutional rights: it limits the equal benefit of
the law and denies girls life of dignity and liberty.

26. When the Hon’ble HC granted protection to the estranged couple, they preferred the right to
protection of life over Ms. Jasmine ’s right to freely and legally marry. As she was a minor and
her decision-making ability cannot be considered as fair and just as an adult. She was the one
who should have been given her right to freely marry at a lawful age by annulling their marriage
at that time. But the HC granted them protection and indirectly promoted child marriage under
the shield of article 21 and this violated another right coming under the same article.
➢ The law mentioned in Article 21 must be a valid law. In other words, it should have been
enacted by a competent legislature and the said law should not violate any other
Fundamental right of the constitution. 51

27. In the light of the presented facts and authorities cited, it is concluded that Ms Jasmine was the
minor child and as per Section 12 of the PCM Act, their marriage was also void as Mr Rajiv
enticed her. Apart from this, while granting protection, HC gives priority to the Right to
protection in the absence of any infringement over Ms. Jasmine ’s right to freely and legally
marry which gives the birth of Subsequent offences on her. Therefore, in the shield of Article
21, Hon’ble HC promoted Child marriage by violating the rights of Article 21 itself.

Thus, the Hon’ble High Court under the Shield of Article 21 of the Indian Constitution
indirectly promoted Child Marriage.

ISSUE5.WHETHER IN SUCH CASES THE PERSONAL LAWS TAKE OVER OR IT

IS THE SPECIAL STATUTES THAT TAKES THE LEAD?
28. It is most humbly submitted before the Hon’ble Supreme Court of India that Special Laws takes
the lead while discussing such cases because Special laws will take lead over the personal laws,
because firstly the Special Statute aims to prevent evil practices for the well being of Children
(5.1) secondly Personal laws are subject to public order, morality and health (5.2) thirdly
Personal laws do not give any specification in such cases (5.3)

50
The Centre for Law and Policy Research, “Ending Impunity for Child Marriage in India: NORMATIVE AND
IMPLEMENTATION GAPS, 48” (2018).
51
Justice K.N Jain, “Article 21 of the Constitution of India” 6 (2006).

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29. The Indian Constitution guarantees fundamental rights to all its citizens, regardless of personal
laws or religious backgrounds. These fundamental rights, including the right to life, liberty,
and equality before the law, should take precedence over personal laws.

➢ Recently Kerela High Court in Khaledur Rahman Versus State of Kerela 52 and has
held that Muslim Marriages are not excluded from the POCSO Act, physical
relationship with minor is an offence irrespective of validity of marriage. It was also
observed in the said judgement that the legislative intent reflected through the POCSO
act is to prohibit physical relationship with a child, even under the cover of marriage.
➢ Karnataka High Court in Alim Pasha Versus State of Karnataka53 which has held
that POCSO act will prevail over the personal law. Marriage between Muslims under
personal law is not excluded from the sweep of POCSO act. If one of the parties to the
marriage is minor, irrespective of validity or otherwise of the marriage offences under
POCSO act will apply.
➢ In the case of Independent Thought v. Union of India,54 para19 of the judgment the
court stated that the PCMA prevailed as the special Act, the Hindu Marriage Act, 1955
and the Muslim Marriage Act, 1939 because the Act is secular in nature. 55
➢ Justice Deepak Gupta (now retired) had acknowledged the 2006 PCMA as a “secular
act applicable to all”. “It being a special act dealing with children, the provisions of this
act will prevail over the provisions of both the Hindu Marriage Act and the Muslim
Marriages and Divorce Act, in so far as children are concerned,” the court said. 56

(5.1)THE SPECIAL STATUE AIMS TO PREVENT EVIL PRACTICES FOR THE

WELL-BEING OF CHILDREN.

30. The offences committed by Mr. Rajiv are cognizable in nature if personal laws take the
supremacy then, it will affect the security and well-being of the Victim and such cases will

52 B.A. No. 8216 of 2022

53 Crl RP No. 7295/2022
54
(2017) 10 SCC 800.
55
In the High Court of Kerala at Ernakulam present the Hon’ble Mr. Justice Sunil Thomas Wednesday, The
07TH Day of October 2020 / 15TH Ashwin, 1942 WP(C). No.15564 OF 2017(U), available
at https://www.livelaw.in/pdf_upload/pdf_upload-384556.pdf
56
Apoorva Mandhani, “Can an under-18 Muslim girl be married? HC verdict puts focus back on Child Marriage
law”, The Print, 13 February 2021,.

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become detrimental for the country. As personal law allows the marriage of Muslim girls
between the age of 15 and 18 which gives birth to serious offences like rape, sexual assault and
so on. Therefore, for the well-being of the society and overall Islam Community. It is necessary
for the special statutes to take the lead instead of the Personal Laws.

31. The Karnataka High Court Aleem Pasha v. State of Karnataka57 recently held that personal
laws cannot override special enactments such as the POCSO Act, the PCM Act or general laws
like the IPC when it comes to heinous offences like rape or marriage with a minor girl. 58

(5.2)PERSONAL LAWS ARE SUBJECT TO PUBLIC ORDER, MORALITY AND

HEALTH.

32. Although the marriage of a 16-year-old girl deemed to have attained puberty is not considered
invalid in Muslim law, it would be a child marriage under the Prohibition of Child Marriage
Act which is against morality, public order and health.

33. The Supreme Court advocate Anas Tanwir added: “After the Shayara Bano case (triple talaq
verdict), following personal laws is also subject to public order, morality and health. So, in
such a case, the 2006 Act will take precedence over the personal laws.” Tanwir also pointed
out that the high court’s observation seemed unnecessary in a case for grant of protection while
asserting that the view is “erroneous”. “Under the Constitution, the personal laws are subject
to public order, health and morality, and wherever there is a conflict between personal law and
the Constitution, the latter, of course, prevails. Therefore, Muslim personal law will also be
subject to public order, health and morality,” he said. 59
(5.3)PERSONAL LAW DOES NOT GIVE ANY SPECIFICATION IN SUCH CASES.

Section 41 of the IPC defines special law reads as,

Special Law- " Special law is a law applicable to a particular subject" 60

34. Thus, special law is a provision of law, which is applicable to a particular and specified subject
or class of subject. In other words, it will apply to a special class of cases and have no
application in general cases. It is well settled that the special law prevails over the general law.

57 http://www.scconline.com/DocumentLink/UVRBfZIo
58
Nayaz Pasha vs State of Karnataka, Criminal Petition No.1173 of 2021.
59
Id. at 27.
60
Indian Penal Code, 1860, S. 41.

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Thus the general provision should yield the specific provision. In other words, where there is
a specific punishment provided in the special Act it takes precedents over the general
punishment prescribed under the IPC, but when there is no specific punishment provided under
special law then the punishment prescribed under the general law i.e., IPC comes into
operation.61

35. Similarly, the Hindu Marriage Act and Muslim Marriage Act doesn’t deal with the marriage
between Hindu-Non Hindu and Muslim-Non Muslim, until and unless conversion has been
done. Therefore, in such cases, Special Laws will take the lead, not Personal Laws.

36. Henceforth, in the view of presented arguments & cited authorities, it is concluded that while
dealing with such cases, a secular law i.e., Special Laws should be given a priority but it is not
violating the Personal Laws in fact these are addressing the well-being and welfare of the
community and society. Apart from this, when there is no specification given by the Personal
Laws then, Special Laws will take the lead.

Thus, the Special laws takes lead while discussing such cases.

61
Ejaj Ahmad vs State of Jharkhand, [2010 Cr LJ. 1953(Jha).

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PRAYER

THEREFORE, IN THE LIGHTS OF THE FACTS USED, ISSUES RAISED, ARGUMENTS

ADVANCED AND AUTHORITIES CITED, THE COUNSEL FOR THE RESPONDENT
MOST HUMBLY AND RESPECTFULLY PRAYED THAT THIS HON’BLE SUPREME
COURT MAY BE PLEASED TO:

1. The protection granted by the High Court of Punjab & Haryana under Article 21 of the
Indian Constitution should be held unjustified.

2. Maximum Punishment for offences under section 361 and 503 of IPC, 3 and 4 of POCSO
and 9 and 10 of PCMA be given to Mr. Rajiv.

3. Should not quash the filed FIR and dismiss the granted anticipatory bail to the petitioner
under Section 438 of CrPC.

4. Held the marriage void by prevailing special statute over Personal laws.

AND PASS ANY ORDER, DIRECTION OR RELIEF THAT THIS HON’BLE COURT MAY
DEEM FIT IN THE INTERESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE.

All of which is humbly prayed,

Counsels for the Respondent.

Date: 26-10-2023

Place: New Delhi

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