TEAM CODE - J

10th SEMESTER MOOT COURT AND INTERNSHIP

BEFORE THE HON’BLE HIGH COURT OF MADRAS

IN THE MATTER OF

ORIGINAL APPELLATE JURISDICTION OF THE HIGH COURT

MADHAVAN ………….……………………………………………………………
Appellant

v.

SANGEETHA ………………….…………………………………………………
Respondent

MEMORIAL ON BEHALF OF THE APPELLANT

 MEMORIAL ON BEHALF OF APPELLANT

TABLE OF CONTENTS

1. LIST OF ABBREVIATIONS 2

2. INDEX OF AUTHORITIES 3

3. STATEMENT OF JURISDICTION 5

4. ISSUES 6

5. STATEMENT OF FACTS 7

5. SUMMARY OF ARGUMENTS 8

6. ARGUMENTS ADVANCED 10

7. PRAYER 18

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LIST OF ABBREVIATIONS

AIR All India Reporter

Art. Article
cl. Clause
Cri.L.J. Criminal Law Journal (India)
Ed. Edition
HC High Court
Hon’ble Honourable
Id. Idem
Ltd. Limited
Manu Manupatra
No. Number
Ors. Others
PC Privy Council
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
Sec. Section
v. Versus

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INDEX OF AUTHORITIES

CASES CITED:

Sl.
CASE CITATION
No.
1. (2017 SCC OnLine
Indubai Jaydeo Pawar v. Draupada
Bom 2413)
2. Pashaura Singh v. State of Punjab, (2010) 11 SCC 749
3. Rajnesh v Neha, 2020 SCC Online SC
903
4. Rambhai v. Ramesh Kumar,
1996 MP L.J 91.

5. Ramesh Chandra Dagga v. Rameshwari Dagga, (2005) 2 SCC 33

6. S. Nagalingam v. Sivagami, (2001) 7 SCC 487. AIR 1955 SC 191
7. Civil Appeal No.
Satish Chander Ahuja Vs Sneha Ahuja,
2483/2020
8. (2018 SCC OnLine
Union of India v. V.R Tripathi
SC 3097)
9. Vidyadhari & Ors v. Sukhrana Bai & Ors. (2008)

BOOKS AND ACADEMIA REFERRED:

1. I.P. MASSEY, ADMINISTRATIVE LAW, (9th ed. Eastern Book Company 2017)

2. BM GANDHI, FAMILY LAW, Vol. I (1st ed. 2012)

3. VEPA P SARATHI, LAW OF EVIDENCE (7th ed. 2018)

4. SA DESAI, MULLA ON PRINCIPLES OF HINDU LAW, Vol I-II (12th ed., 2015)

5. BRYAN A GARNER, BLACK’S LAW DICTIONARY (10th ed. 2014)

6. JOHN JANE SMITH, WHARTON’S LAW LEXICON, 491 (2015)

7. Shubhodip Chakraborty, Law on Domestic Violence [Protection of Women from

Domestic Violence Act, 2005, 2020 SCC Online Blog LME 2

STATUTES REFERRED:

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1. Family Courts Act, 1984

2. Indian Majority Act, 1875
3. Hindu Marriage Act, 1955
4. Hindu Minority & Guardianship Act, 1956
5. Guardians & Wards Act, 1890
6. Indian Evidence Act, 1872
7. Protection of Women from Domestic Violence Act, 2005

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STATEMENT OF JURSIDICTION

It is humbly submitted that the Appellant has approached the Hon’ble Court under Section 19
of the Family Courts Act, 1984. The said provision confers powers to the Hon’ble High Court
to take on appeal cases from the Family Court as a regular first appellate court.

It is humbly submitted that the Appellant has duly satisfied all the conditions laid down under
Section 19 of the Family Court Act, 1984 and hence this appeal is maintainable before this
Hon’ble High Court of Madras.

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ISSUES

1. WHETHER ANY KNOWLEDGE CAN UNDO THE EFFECT OF THE SUBSISTING EARLIER
MARRIAGE OF THE RESPONDENT??

2. WHETHER OR NOT THE PRESUMPTION OF KNOWLEDGE IS PERVERSE?

3. WHETHER CAN A HUSBAND CLAIM SOLE CUSTODY OF A CHILD, IF THE MARRIAGE

IS VOID?

4. WHETHER A WIFE CAN CLAIM THE RIGHT OF RESIDENCE ON HER MOTHER-IN-

LAW’S PROPERTY?

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STATEMENT OF FACTS

Sangeetha, a resident of Chinnakonur, Mettur Taluk, Salem District, was married to Sekar, a
resident of Andikarai, Mettur Taluk, Salem District, in 2007 following Hindu rites and
customs. She was 17.5 years old at the time, while Sekar was 21. They had a son named
Kalicharan in 2008. Their marital life became tumultuous after Sekar began an affair with
Mia, leading to Sangeetha being subjected to cruelty and ultimately being thrown out of their
house, with custody of Kalicharan taken by Sekar. Sangeetha stayed at her parents' house for
six months, hoping for reconciliation, but discovered Sekar had married Mia and converted to
Islam, taking the name Osama.

Sangeetha sought resolution through the Village Panchayat, where Sekar (alias Osama)
pronounced 'Talaq' three times, divorcing her. Disheartened, Sangeetha learned in 2009 that
Sekar (alias Osama) and Mia had left the village, leaving their whereabouts unknown. She
decided to rebuild her life, studying again and securing a job at a school in her village in
2014.

In 2015, Sangeetha developed a relationship with Madhavan, a new teacher at the same
school. They got married in December 2016, following Hindu customs, and had a daughter
named Veni in February 2018. Madhavan discovered Sangeetha's previous marriage only
after Veni's birth and reacted with verbal abuse, eviction, and taking custody of Veni.

Madhavan filed for divorce and custody of Veni under the Hindu Marriage Act, 1955, while
Sangeetha countered with a petition under the Domestic Violence Act, 2005, seeking
residence and access to Veni. The Family Court, Salem, dismissed Madhavan's divorce
petition, citing his prior knowledge of Sangeetha's previous marriage, and granted Sangeetha
the right to residence at her husband's place. Madhavan now appeals this decision in the
Hon’ble High Court, Madras, raising substantial legal questions regarding knowledge,
custody, and right to residence.

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SUMMARY OF ARGUMENTS

1. WHETHER ANY KNOWLEDGE CAN UNDO THE EFFECT OF THE SUBSISTING EARLIER

MARRIAGE OF THE RESPONDENT?

2. WHETHER OR NOT THE PRESUMPTION OF KNOWLEDGE IS PERVERSE?

The arguments presented humbly combine two issues for clarity. The counsel asserts that the
appellant was unaware of the respondent's prior marriage and argues against the presumption
of knowledge in bigamy cases, citing relevant legal provisions.

They cite Section 17 of the Hindu Marriage Act and relevant sections of the IPC regarding
bigamy, outlining the necessary elements to establish the offense. Legal precedents
emphasize the importance of proving the validity of subsequent marriages.

Exceptions to Section 494 of the IPC are noted, particularly regarding marriages declared
void by court or where a spouse is missing for seven years, with certain conditions.

The counsel argues that concealing a prior marriage while contracting a subsequent one
constitutes a separate offense under Section 495 of the IPC.

Analyzing the case at hand, the counsel contends that the respondent is guilty of bigamy,
having married the appellant while still married to another person and concealing this fact.
They argue that even if the first husband is presumed dead, the exceptions to Section 494
don't apply due to lack of disclosure.

The timeline of events suggests the appellant couldn't have known about the respondent's
prior marriage, undermining any presumption of knowledge.

The counsel concludes that presumption of knowledge would be unjustified given the
circumstances, emphasizing the validity of the subsequent marriage conducted according to
Hindu customs.

3. WHETHER CAN A HUSBAND CLAIM SOLE CUSTODY OF A CHILD, IF THE MARRIAGE IS

VOID?

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The Counsel for the Appellant asserts the Appellant's right to sole custody of his daughter,
Veni, despite the void nature of his marriage. They cite Section 6 of The Hindu Minority and
Guardianship Act of 1956, which grants natural guardianship to the father, particularly for
children above the age of five.

They argue that although the marriage between the Appellant and the Respondent is void,
their daughter remains legitimate under Hindu customs. Legal precedents support this notion,
affirming the legitimacy of children born out of void marriages.

Considering the daughter's age, which is over five years, the Appellant's claim for sole
custody is justified under Section 6(a) of The Hindu Minority and Guardianship Act.

Furthermore, they refute the Respondent's application for custody under the Domestic
Violence Act of 2005, arguing that it only allows for temporary custody in cases of abuse,
which is not evident in this instance. Therefore, the Appellant's claim for sole custody
remains valid.

4. WHETHER A WIFE CAN CLAIM THE RIGHT OF RESIDENCE ON HER MOTHER-IN-LAW’S

PROPERTY?

The Counsel for the Appellant argues that, according to the Domestic Violence Act of 2005, a
wife cannot claim a right of residence on her mother-in-law's property unless it qualifies as a
shared household exclusively owned by the father-in-law.

They refer to a Supreme Court case, Satish Chander Ahuja vs Sneha Ahuja, which clarified
that a daughter-in-law's right to residence is limited to a shared household exclusively owned
by her father-in-law, where she has lived in a domestic relationship with him.

The term 'shared household' is defined under Section 2(s) of the Domestic Violence Act,
encompassing places where the aggrieved person has lived with the respondent in a domestic
relationship.

While the decision sets a precedent allowing residence orders in such shared households, it
explicitly states that the property must be exclusively owned by the father-in-law, not the
mother-in-law.

In the current case, as the property in question is owned by the mother of the Appellant, the
Respondent cannot claim a right of residence, even if she resided there during her marriage.

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This argument is reinforced by the void nature of the matrimonial relationship due to the
Respondent's bigamy offense.

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ARGUMENTS ADVANCED

1. WHETHER ANY KNOWLEDGE CAN UNDO THE EFFECT OF THE SUBSISTING EARLIER
MARRIAGE OF THE RESPONDENT?

2. WHETHER OR NOT THE PRESUMPTION OF KNOWLEDGE IS PERVERSE?

1. It is humbly submitted that the arguments for Issue-1 and 2 have been combined for the
sake of easy argument.

2. The counsel humbly submits that the Appellant had no prior knowledge of the subsisting
earlier marriage of the respondent and no amount of knowledge can undo the effect of the
subsisting earlier marriage of the respondent since the marriage between the Appellant
and the Respondent is void. Furthermore, the Counsel of the Appellant respectfully
submits that presumption of knowledge is perverse as it takes away the freedom of a party
to contest the issue of bigamy and provide the evidence considering the same.

3. Section 17 of the Hindu Marriage Act, r/w Sections 494 and 495 of the IPC lay down the
provisions for the act bigamy and render it as a prohibited Act. Accordingly, the section
reads as hereunder:
Section 17. Punishment of bigamy. —Any marriage between two Hindus (including
Buddhist, Jaina or Sikh) solemnized after the commencement of this Act is void if at the date
of such marriage either party had a husband or wife living; and the provisions of Sections
494 and 495 of the Indian Penal Code (45 of 1860) shall apply accordingly.

4. For an offence of bigamy to have been committed the following ingredients are required
to be proved before the court. These include- (i) the accused must have contracted first
marriage (ii) he/she must have married again (iii) the first marriage must be subsisting
(that is no divorce has taken place) and (iv) the first spouse must be living. The necessity

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to prove that the spouse from the previous marriage is alive was laid down in the case of
Pashaura Singh v. State of Punjab, (2010) 11 SCC 749

5. Apart from these conditions, the court, in the case of S. Nagalingam v. Sivagami, (2001)
7 SCC 487. Also laid down that the importance of proving the validity of the subsequent
marriage and whether the same was conducted in compliance with all the respective legal
and religious traditions, practices and rituals or not.

6. Section 494 of the IPC states, “any person who already has a wife or husband living,
further proceeds to marry another person while being lawfully wedded to such wife or
husband shall be punished with imprisonment of either description for a term which may
extend to seven years, and shall also be liable to fine. Moreover, such marriage shall be
considered void in whatsoever case.” Thus, where a person, has contracted a marriage
with someone while already having been married previously, and the spouse from such
previous marriage is still existing, then the subsequent marriage shall account for the
offence of bigamy and shall be deemed as void, in the eyes of law.

7. Section 494 of the IPC does not extend in two situations, these situations can be deemed
as exceptions to the offence of bigamy.

“Exceptions to Section 494:

1. The said provision does not extend to any individual whose marriage with their
partner from the prior marriage has been declared void by a court of competent
jurisdiction.

2. The said provision does not extend to any individual who contracts a marriage during
the lifetime of their former partner wherein such partner at the time of such
individual’s second marriage was not heard of for a period of seven years or wherein
there is no information of them being alive. By virtue of presumption provided under
Section 108 of the Indian Evidence Act, 1872, it may be concluded that a person who
has been missing for more than seven years is presumed to be dead and that when the
individual contracts a second marriage, it shall be understood that no husband or

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wife is living at the time of the second marriage and thus, the offence of bigamy is not
constituted. The condition that is inclusive of this exception is that the individual
contracting the second marriage must, before the second marriage takes place,
inform the person they are about to marry about the facts to the best of their
knowledge regarding their previous partner.”

8. When an individual does the act of bigamy by concealing the fact of their former
marriage from the person with whom they contract their second marriage with, then such
individual becomes liable under Section 495. Such individuals shall be consequently
punished with imprisonment of either description for a term which may extend up to ten
years and shall be liable to fine or both.

9. Looking into the merits and circumstances of the instant case, it can be clearly determined
that the respondent, Ms. Sangeetha, was guilty of the offence of bigamy, as she contracted
a second marriage with the Appellant, Mr. Madhavan, while in a subsisting earlier
marriage, with Mr. Sekar/Osama and intentionally concealed the information of her
subsisting previous marriage from the Appellant. According to the undisputed facts of the
case, it can be clearly determined that all the necessary ingredients required to consider a
particular act as an act of bigamy, have been duly fulfilled by the respondent and
therefore the marriage between the Appellant and the Respondent should be deemed void.

10. The Counsel humbly submits that the Respondent had contracted a first marriage with
Sekar/ Osama and subsequently married the Appellant while her first marriage was still
subsisting. The validity of the second marriage can be proven on the basis of the
undisputed facts of the proposition which clearly state the marriage between the appellant
and the respondent took place according to the Hindu rites and rituals , followed by a
reception in 2016.

11. Although Sekar/Osama converted his religion to Islam, intending to marry a third person
(Mia), assumed the practice of Talaq-e-biddat to divorce with the Respondent, that could
not be considered valid owing to two reasons. Firstly, the marriage was not deemed void
by a decree passed by a court of a competent jurisdiction and secondly, the marriage
between the respondent and her first spouse was governed under the provisions of the

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Hindu Marriage Act, performed according to Hindu rituals and rites. Therefore an Islamic
practice would render such a divorce ineffective. The same was also upheld In the
landmark case of Sarla Mudgal v Union of India (1995), where the Apex Court stated that
when two individuals marry each other as per the provisions of a particular personal law
then such marriage shall continue to be governed under the same personal law
irrespective of the fact that one of the individuals to the marriage has converted to another
religion. Therefore, the individual who converts to another religion and attempts to or
marries again during the subsistence of their first marriage will be held liable for bigamy.
Such individuals shall not escape the legal consequences as elucidated under Section 494
of the IPC.

12. The counsel humbly submits before the court that there is no clarity as to whether the
subsisting spouse of the Respondent is currently living or not. However, even if the first
husband of the Respondent is deemed or presumed to be dead, yet, neither of the
exceptions under Section 494 of the Indian Penal Code apply in the instant case as they
are conditioned on the requirement that the person contracting a second marriage has duly
informed, to the best of their ability, all the information about their previous marriage to
their subsequent spouse. Furthermore, the concealment of such information also amounts
to the invocation of the penal sanction laid down under Section 495 of the Indian Penal
Code.

13. It is clear from the facts of the instant case, that the marriage contracted between the
Appellant and the Respondent was in 2016, a year after the Appellant and Respondent
entered into a relationship with each other. It is pertinent to highlight in the instant case
that the Appellant arrived in the Chinnakonur Village, where the respondent was residing,
only in 2015, after he completed his education in Bangalore. The Appellant became aware
of and close to the respondent after he acquired a job in 2015 in the same school as the
respondent. The subsiding earlier marriage of the Respondent took place much before the
Appellant was residing in the concerned village. This makes it clear that he did not
possess any knowledge of the subsisting existing marriage of the Respondent in any
manner.

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14. Accordingly, the counsel for the Appellant further contends that presumption of such
knowledge shall be perverse to the instant case, since concealment of information of the
subsisting earlier marriage of the respondent is clear from the facts of the case.
Presumption of such knowledge would violate the condition of the validity of the
subsequent marriage of the Appellant and the Respondent, essentially, since the same was
conducted in light of the necessary Hindu rituals, practices and customs.

3. WHETHER CAN A HUSBAND CLAIM SOLE CUSTODY OF A CHILD, IF THE MARRIAGE

IS VOID?

1. The Counsel for the Appellant humbly states before the court that under the provisions of
the Hindu Religious laws, a husband can claim the sole custody of a child, even if the
marriage is void. The Counsel respectfully submits before the court that the Appellant is
absolutely right in his claim to acquire the sole custody of his daughter, Veni.

2. The custody of a child is covered within the ambit of The Hindu Minority and
Guardianship Act of 1956 under Section 6. Accordingly the section reads as hereunder:

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—
(a) in the case of a boy or an unmarried girl—the father, and after him, the mother:
provided that the custody of a minor who has not completed the age of five years shall
ordinarily be with the mother;
(b) (b) in the case of an illegitimate boy or an illegitimate unmarried girl—the mother,
and after her, the father;

3. The Counsel humbly submits before the Court that although the nature of their marriage
between the Appellant and the Respondent is void, yet it does not imply that the child

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begotten out of such marriage is illegitimate. The matrimonial relations existing between
the concerned parties to the instant dispute were sanctioned in accordance with the
customary Hindu rites, customs and practices and therefore shall be considered as a valid
Hindu marriage although void. Consequently it can be logically deducted that the child
born out of the said marriage is governed by Hindu customs and traditions.

4. In the case of Vidyadhari & Ors v. Sukhrana Bai & Ors. (2008), it was held by the
Supreme Court that the children born of second wedlock are entitled to a share in the
property of their father, though the second marriage itself is void. If an individual marries
a second time during the subsistence of his first marriage, the children born out of such
wedlock will still be legitimate. This was further upheld in the case of Indubai Jaydeo
Pawar v. Draupada (2017 SCC OnLine Bom 2413) wherein it was stated that for the
benefit of an illegitimate child and to expand the scope of application of the provisions of
the Hindu Marriage Act, any child born to parents who have duly undergone such rituals
or formalities of performance of marriage which are now void or voidable shall be
deemed legitimate. In the case of Union of India v. V.R Tripathi (2018 SCC OnLine SC
3097), the Apex court furthered the decision of the Bombay High Court that was passed
in the aforementioned case and affirmed the legitimacy of a child born out of a void
marriage. Thus, the daughter of the Appellant and the Respondent, although having been
born out of a void marriage (in light of the offence of bigamy committed by the
Respondent) will still be considered legitimate in the eyes of the law and shall duly fall
within the ambit of The Hindu Marriage Act and The Hindu Minority and Guardianships
Act.

5. The counsel humbly requests the Court’s attention to the facts and circumstances of the
instant case. According to the timeline provided within the undisputed facts of the case, it
can be clearly identified that the age of the Appellant and Respondent’s daughter is five
years and not below. The said daughter was born in 2018, two years post the
commencement of the marital relations between the concerned parties. Since the present
appeal has been filed in 2013, therefore the Appellant’s daughter is above five years of
age and therefore the Appellant, under Section 6(a) of The Hindu Minority and
Guardianship Act has the absolute right to claim for a sole custody of the said child.

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6. The counsel of the Appellant would further like to put on record that the Respondent has
filed the application of custody of the daughter of the said parties under the provisions of
the Domestic Violence Act, 2005. Under Section 21 of the said Act, while the court has
the discretion to award custodial rights to the mother, the same only allows for a
temporary custody and shall be in light of the domestic violence and abuse that has been
administered to her by the husband and/or the relatives of such husband. In the instant
case, there is not instance of any form of abuse on the part of the Appellant against the
Respondent. Thus, the application of the provisions of the Domestic Violence Act, 2005
do not apply in the instant case and therefore, the Appellant has the right to claim for the
sole custody of his daughter in the instant case.

4. WHETHER A WIFE CAN CLAIM THE RIGHT OF RESIDENCE ON HER MOTHER-IN-

LAW’S PROPERTY?

1. The Counsel for the Appellant humbly submits before the Hon’ble Court that a wife,
according to the provisions of the Domestic Violence Act, 2005 cannot claim a right of
residence on her mother-in-law’s property. Such claim of right of residence can only be
allowed in cases of a shared household, where the concerned property is exclusively
owned by the father-in-law of such wife of the husband.

2. The Hon’ble Supreme Court in the case of Satish Chander Ahuja Vs Sneha Ahuja, Civil
Appeal No. 2483/2020, clarified the rights of a woman in capacity of daughter-in-law for
residence order in the property, exclusively owned by her father-in-law subject to the
house being a shared household in which the daughter in law has lived in a domestic
relationship with the father-in-law.

3. The Apex Court in the aforementioned case has interpreted the term ‘shared household’
which is defined under Section 2(s) of the Protection of Women against Domestic
Violence Act of 2005. The right of residence provided under the Act to women ousted
from the house or prevented entry thereon has been envisaged qua “shared household”

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only. It is, therefore, safe to state that as per the Act, a shared household would mean a
house in which the aggrieved person has lived or at any stage has lived along with the
respondent in a domestic relationship i.e. a relationship between two members who have
lived together on account of being related by consanguinity (by blood), marriage or
through a relationship in the nature of marriage, adoption or are family members.

4. While the decision expands the scope of the definition of the term ‘shared household’ and
states that the Respondent certainly would succeed in obtaining residence order in the
dwelling place and this authority would act as binding precedence and therefore this
question remains no longer res-integra. However, the Court has clearly provided that the
shared household so mentioned herein should be exclusive owned by the father-in-law of
the respondent seeking the claim and does not extend to a property that is in the
ownership of the mother-in-law.

5. In the instant case, while the Respondent seeks a claim of right of residence over the
‘shared household’ in which the Appellant is cohabiting, the same cannot stand valid
before the court of law, primarily because the property is owned by the mother of the
Appellant and is in her name. Thus, even if it’s presumed that the Respondent was
residing in the concerned property at any instant point of time, during her marriage with
the Appellant, she still would not be able to claim the right of residence to such property.
This Counsel also submits that this contention is furthered by the fact that the nature of
matrimonial relationship between the Appellant and the Respondent is void ab initio as
the latter has committed the offence of bigamy and married the Appellant during a
subsisting earlier marriage.

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PRAYER

WHEREFORE, IN LIGHT OF THE FACTS STATED, ISSUES RAISED AND ARGUMENTS ADVANCED, IT
IS MOST HUMBLY PRAYED BEFORE THIS HON’BLE COURT THAT IT MAY BE PLEASED TO

ADJUDGE AND DECLARE THE FOLLOWING:

A) TO REVERSE THE IMPUGNED ORDER OF THE FAMILY COURT, SALEM AND,

B) TO DECLARE THE MARRIAGE BETWEEN THE APPELLANT AND THE RESPONDENT TO BE

VOID;

C) TO ORDER THE RESPONDENT TO NOT DISTURB THE RIGHT OF THE APPELLANT TO HOLD

CUSTODY OF THE CHILD;

D) TO DECLARE THAT THE RESPONDENT HAS NO RIGHT TO RESIDE AT THE APPELLANT’S

MOTHER’S HOUSE;

AND PASS ANY OTHER ORDER THAT IT MAY DEEM FIT IN THE FAVOUR OF THE APPELLANT IN

LIGHT OF JUSTICE, EQUITY AND GOOD CONSCIENCE.

ALL OF WHICH IS MOST HUMBLY PRAYED.

___________________________
COUNSEL FOR THE APPELLANT

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