TEAM CODE - 03

BEFORE

THE HON’BLE SUPREME COURT OF INDIA

IN THE MATTER OF

Mr. RAHUL …….……..………………………………………………………….(APPELLANT)

v.

UNION OF INDIA ………………..………………………………………………..(RESPONDENT)

WRIT PETITION NO. 003 /2024

(Under article 136 of the Constitution of India)

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MEMORUNDUM ON BEHALF OF THE APPELLANT
 TABLE OF CONTENTS

S. NO. TITLE PAGE NO.

1. TABLE OF ABBREVIATIONS 3

2. INDEX OF AUTHORITIES 4

3. STATEMENT OF JURISDICTION 6

4. SUMMARY OF FACTS 7

5. ISSUES RAISED 9

6. SUMMARY OF ARGUMENTS 10

7. ARGUMENTS ADVANCED 12

8. PRAYER 23

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 TABLE OF ABBREVIATIONS

& And

AIR All India Reporter

Art. Article
cl. Clause
CRL.R.C Criminal Referred Case
CRI.L. J Criminal Law Journal
DB Division Bench
DLT Delhi Law Times
DMC Divorce & Matrimonial Cases
Edn. Edition
FIR First Information Report
Hon’ble Honorable
H.P. Himachal Pradesh
ILR Indian Law Reports
IPC Indian Penal Code
Govt Government
Ker Kerala
Khc Kerala High Court Cases
PCMA Prohibition of Child Marriage Act
POCSO Protection of Children from Sexual Offences
RCR Restitution of Conjugal rights
s. Section

INDEX OF AUTHORITIES

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CASES REFERRED

1. A, Yousuf Rather v. Sarama, AIR 1971 Ker 261.

2. Abdul Khader v. k. Pachamama, CRL.R.C. No. 1441 of 2012 & M.P. No. 1 of 2012.
3. Ajit Singh v. State of Haryana, 2007 (3) RCR (CRIMINAL) 287.
4. Amrit Singh v. The State of Punjab, 2021 (1) RCR (Civil) 726.
5. Anees Hameed v. State of Kerala, 2017 (5) Khac 101.
6. Asha Ranjan v. State of Bihar, AIR 2017 SC 1079.
7. Darya v. The State of U.P., AIR1961 SC 1457.
8. Gurcharan Singh v. State of Haryana, AIR 1972 SC 2661.
9. Hajj Sayyad v. State of M.P., (2012) ILR(MP)2610.
10. In Re: Indian Woman says gang-raped on orders of Village Court published in Business and Financial
News, AIR 2014 SC 2816.
11. Jaikumar Bharathi Patel v. State of Gujarat, SCR.A/5254/2022 (Gujarat high court).
12. Joseph Shine v. Union of India, AIR 2018 SC 4898.
13. Laddi @ Balwinder Kumar v. State of Punjab, 2012 (3) Cri 3 (P&H).
14. Lata Singh v. State of Uttar Pradesh, AIR 206 Sc 2522.
15. Mamta v. State of Punjab, 2021 (4) RCR (Criminal) 246.
16. Md. Idris v. State of Bihar, 1980 Cri LJ 764.
17. Mohd. Ali alias Guddu v. state of Uttar Pradesh, 2015 (3) WLN 18 (SC).
18. Mohd. Samin v. State of Haryana, 2019 (1) RCR (Criminal) 685.
19. Ms Seema Begaum v. State of Karnataka, ILR (2013) Karnataka 1659.
20. Nantu Chakraborty Alias Gopal v. State of West Bengal, MANU/WB/0852/2012.
21. Neelam Rani v. State of Haryana, 2011 (1) RCR (Civil) 636.
22. Pranav Kumar Mishra v. Govt. of NCT. Delhi WP(C) No. 748/2009.
23. R.P. Kapur v. State of Punjab, AIR 1960 SC 866.
24. Rajveer Kaur v. State of Punjab, 2019 (3) RCR (Civil) 478.
25. Rajwinder Kaur v. State of Punjab, 2014 (4) RCR (Criminal) 785.
26. Ravi Kumar v. State, (2005) II DMC 731 (DB).
27. S. Varadarajan v. State of Madras, AIR 2018 SC 1933.
28. Shafin Jahan v. Asokan K.M., AIR 2018 SC 1601.
29. Shajal Rai Alias Adrian v. State of Sikkim, SLR (2021) Sikkim 181.
30. Shakti Vahini v. Union of India, AIR 2018 SC 1601.
31. Shatrughan Singh Sahu v. State of Chhattisgarh, WPCR No. 133 of 2017 High Court of Chhattisgarh.
32. Sk. Sajid v. State of West Bengal, MANU/WB/0150/2021.
33. Soniya v. State of Haryana, 2021 (3) RCR (Criminal) 131.
34. State of H.P. v. Shree Kant Shekari, (2004) 8 SCC 153.
35. State of Haryana v. Bhajan Lal, AIR 1992 SC 604.
36. T. Sivakumar v. The Inspector of Police, AIR 2012 Mad 62.
37. Vikas Yadav v. State of U.P., AIR 2016 SC 4614.

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38. Yunusbhai Usmanbhai Shaikh v. State of Gujarat, (2015) 3 GLR 2512.
39. Court on its Own Motion (Lajja Devi) v. State, 1993 (2012) DLT 619.

BOOKS REFERRED

1. D.D. Basu, Shorter Constitution of India. (Voll & 2) 15th edn (2018) Lexis Nexis
2. M.P. Jain, Indian Constitutional Law 1180 (Kamal Law House, Calcutta, 5t edn., 1998).
3. P.M. bakshi. The Constitution of India, Lexis Nexis., 16th edn (2019).
4. Mulla, Principles of Mahomedan Law 339 (Lexis Nexis, Haryana, 22nd edn., 2017)

LEGAL DATABASES

1. Manupatra
2. SSC Online
3. Westlaw
4. Hein Online
5. Case mine

STATUTES REFERRED

1. The Constitution of India, 1950

2. The Indian Penal Code, 1860
3. The Code of Criminal Procedure, 1973
4. The Prohibition of Child Marriage Act, 2006
5. The Protection of Children from Sexual Offences Act, 2012.
6. The Muslim Personal Law (Shariat) Application Act, 1937.
7. The Hindu Marriage Act, 1955.
8. The Special Marriages Act, 1954.
9. The Majority Act, 1875 (Act No. 9 of 1875) s. 2cl. A.

STATEMENT OF JURISDICTION

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The Appellant has approached the Hon’ble Supreme Court of India, under Article 136 of the Constitution of
India.

Article 136 special leave to appeal by Supreme Court

(1) Now with standing anything in this chapter the Supreme court may, in its discretion grants special leave
to appeal from any judgement, 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 judgement, determination, sentence or ordered passes or made
by any court or tribunal constituted by or under any law relating to the armed forces.

SUMMARY OF FACTS

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1. The Appellant was a Hindu boy aged 28 years and he is amazing discourse and professional
communication skills and display of knowledge in the field of medical science. The Appellant
has also good charm and extremely attractive personality and communication skills.

2. One fine day, the appellant was invited as guest speaker because of his ordinary achievements in
the field of medical science in the school of respondent studying in a science seminar and various
eminent speakers were also invited.

3. The Respondent is a 16 years old Muslim girl who started considering the Appellant as her role
model. The respondent in the wake of seeking knowledge she managed to secure the respondent
contact number through the pamphlets distributed during the seminar.

4. The relationship of student and guide soon turned into the relationship of friends. Later
Respondent confessed her feelings to Appellant, who accepted her proposal happily and their
friendship turned into a relationship.

5. Respondent parents started objecting to this but she was getting determined to marry Respondent
who was supporting her decision. As they were facing threat from Respondent parents the
estranged couple approached to file a writ petition under Article 226 read with Article 21 of the
Indian Constitution in the judicature of Hon’ble High Court of Punjab & Haryana asking for
protection.

6. How ever no remarks regarding the validity were made and so the couple then started living
together. Six months after, the matrimonial alliance ran into rough weather and the couple
separated.

7. Respondent after returning to her parent’s home, filed false FIR against the Respondent under S.
361 and S.503 of IPC, S.3 and S.4 of POCSO and S.9 & S.10 of Child Marriage Prohibition Act
2006, claiming that he took advantage of her adolescence. Respondent then approached the
district and session court for bail application but as rejected.

8. Appellant again approached the High Court invoking S. 482 of CRPC for quashing of FIR which
was registered by the police on the instance of the Respondent against him, before the Hon’ble
High Court of Punjab & Haryana. But the High Court rejected this application in the light that it
was already mentioned that the order granting the protection to petitioner was not meant to
immune the petitioners from any legal action that could be initiated against them for committing
any offense under other statues, if any.

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MEMORUNDUM ON BEHALF OF THE APPELLANT
9. Appellant decided to challenge the Order of Hon’ble High Court of Punjab & Haryana before the
Hon’ble Supreme Court of India. A Special Leave to Petition under Article 136 of the Indian
Constitution by the apex court was granted, sensing the gravity of the present issue.

10. In absence of any particular legislation and also for framing the guidelines regarding the disposal
of such cases. These appeals by the way of special leave petition have been filed against the
Respondent. Hence the matter present.

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MEMORUNDUM ON BEHALF OF THE APPELLANT
 ISSUES RAISED

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

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

III. WHETHER THE FIR AGAINST APPELLANT IS LIABLE TO BE QUASHED OR NOT.

IV. WHETHER THE HON’BLE HIGH COURT UNDER THE SHEILD OF ARTICLE 21 OF THE
CONSTITUTION INDIRECTLY PROMOTED CHILD MARRIGE AND BY PASSED ANY
OTHER SPECIAL STATUTE.

V. WHETHER IN SUCH CASES THE PERSONAL LAWS TAKE OVER OR IT IS THE SPECIAL
STATUTE THAT TAKES THE LEAD.

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MEMORUNDUM ON BEHALF OF THE APPELLANT
 SUMMARY OF ARGUMENTS

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

The Appellant humbly submits before the Hon’ble Supreme Court that the High Court of Punjab and
Haryana was justified in granting protection to the individual under Article 21 of the Indian constitution.
If the Hon’ble High Court not granted the protection, it would violate the Article 21 of the individual.
Court do have the power to grant protection to the individual without going into the question of
marriage.

2. WHETHER 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 this Hon’ble Court that the custody of the estranged wife to the petitioner
not affect the immune of the appellant because order granting the protection to petitioner was not meant
to immune the petitioners from any legal action that could be initiated against them for committing any
offense under other statues

3. WHETHER THE FIR AGAINST Mr. RAHUL IS LIABLE TO BE QUASHED OR NOT.

It is humbly submitted before the Hon’ble Court that the Appellant has committed no subsequent
offences as the offences lack the essential ingredients which constitute them. It is further that the
appellant has immunity against the offences and that the FIR charged against him can be quashed since
there exists no prima facie case.

4. WHETHER THE HON’BLE HIGH COURT UNDER THE SHEILD OF ARTICLE 21 OF THE
CONSTITUTION INDIRECTLY PROMOTED CHILD MARRIGE AND BY PASSED ANY
OTHER SPECIAL STATUTE.

It is humbly submitted before the Hon’ble Court that if the Hon'ble High Court had not granted
protection, it would have violated Article21 of the individual. Court do have the power to grant
protection to individual without going into the question of marriage. Further, the Hon’ble High Court
did not indirectly promote child marriage.

5. WHETHER IN SUCH CASES THE PERSONAL LAWS TAKE OVER OR IT IS THE SPECIAL
STATUTE THAT TAKES THE LEAD.

It is humbly submitted before this Hon’ble Court that the Personal Laws and special statutes are meant
to deal with different purposes and therefore should not be read together. It is also

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MEMORUNDUM ON BEHALF OF THE APPELLANT
humbly submitted before this Hon’ble Court that the Personal Laws and special statutes
are inadequate in providing protection and ensuring justice to the community governed by them.

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 ARGUMENTS ADVANCED

ISSUE NO. 1

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

It is humbly submitted before the Hon’ble Court that the Hon’ble High Court of Punjab and Haryana was
justified in granting protection to the individual under Article 21 of the Indian Constitution:

(i) As, it would have led to violation of Article 21 of the individual

(ii) Courts can grant protection without going into the question of marriage

AS, IT WOULD HAVE LED TO VIOLATION OF ARTICLE 21 OF THE INDIVIDUAL

It is humbly submitted before the Hon’ble Court that if the Hon’ble High Court had not granted protection
to the individuals it would have led to the violation of Article 21. The Indian Constitution guarantees
essential human rights in the form of Fundamental Rights. 1 Article 21 enshrined in Part III guarantees
protection of life and personal liberty.

I.1.1. DUTY OF COURT TO PROTECT THE INDIVIDUAL’S FUNDAMENTAL RIGHTS

Liberty of the individuals and the protection of his fundamental rights are the very essence of the
democratic way of life adopted by the Constitution. 2 The Constitution confers on the High Courts power to
issue directions, orders or writs for the enforcement of any of the rights conferred by Part III.3

In the case of Mamta v. State of Punjab,4 the Hon’ble Court, while directing the Senior Superintendent of
Police to grant protection to a couple, opined that the mere fact that one of the petitioners is not of a

1
M.P. Jain, Indian Constitutional Law 1180 (Kamal Law House, Calcutta, 5th edn., 1998).
2
Daryao v. The State of U.P., AIR 1961 SC 1457.
3
The Constitution of India, art. 226.
4
2021(4) RCR (Criminal) 246.
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MEMORUNDUM ON BEHALF OF THE APPELLANT
marriageable age would not deprive the petitioners of their fundamental right as envisaged in the
Constitution. The State is duty-bound to protect the fundamental rights of its citizens.5

I.1.2. THREAT TO LIFE OF THE COUPLE

It is humbly submitted before the Hon’ble Court that there was threat to the life of the couple. There was
objection to the relationship between the Appellant and Respondent from the latter’s parents. The parents
had threatened the Appellant and thus, the couple sensed a threat to their life.

The family members do not have any right to assault the boy chosen by the girl. Her individual choice is her

self-respect, and creating a dent in it is destroying her Honor.6Neither the State nor the law can dictate a

choice of partners or limit the free ability of every person to decide on these matters. 7

In8 Lata Singh v. State of U.P.,9 the Court opined that if the parents of the couple do not approve of the
inter-religious marriage, they cannot give threats or commit or instigate acts of violence and cannot harass
the person who undergoes such marriage.

I.1.3. WOULD HAVE VIOLATED THE RIGHT TO CHOOSE PARTNER

The choice of an individual is an inextricable part of dignity, and dignity cannot be thought of
where there is an erosion of choice. 9 The Hon’ble Supreme Court has recognized the freedom of choice in
marriage10 and the right to marry a person of one’s choice 11 under Article 21 of the Constitution. Further, it
has been held that the choice of a woman in choosing her partner in life is a legitimate constitutional right
and founded on individual choice, recognized in the Constitution under Article 19.12

5
In Re: Indian Woman says gang-raped on orders of Village Court published in Business and Financial News, AIR 2014 SC
2816.
6
Vikas Yadav v. State of U.P., AIR 2016 SC 4614.
7
Shafin Jahan v. Asokan K.M., AIR 2018 SC 1933.
8
(5) SCC 475.
9
Shakti Vahini v. Union of India, AIR 2018 SC 1601.
10
Id. at 5.
11
Id. at 7.
12
Asha Ranjan v. State of Bihar, AIR 2017 SC 1079.
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 I.2. COURTS CAN GRANT PROTECTION WITHOUT LOOKING INTO THE QUESTION OF
MARRIAGE

It is humbly submitted that the Court can grant protection to couples without looking into the question of
marriage. The issue which was to be decided here was not regarding the validity of the marriage but the fact
that the couple was seeking protection of their life and liberty as envisaged under Article 21 of the
Constitution of India. The Constitution of India guarantees every individual the right to life, and the choice
of a partner is an important facet of the right to life. 13 The fundamental right to life and liberty is so
sacrosanct and stands at such a high pedestal that it must be protected even in the absence of an incident
like solemnization of a valid marriage between the parties. 14 The mere fact that the petitioners are not of
marriageable age would not deprive them of their fundamental right as envisaged in the Constitution of
India, being citizens of India.15 If the Court had denied the protection and the couple had to face dire
consequences at the hands of persons from whom protection is sought then it would have been the Court's
failure to uphold the Rule of Law.16

ISSUE NO. 2

2. WHETHER 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 this Hon'ble Court that the appellant of the instant case,

1. has committed no subsequent offences.

2. has immunity against the offences.
II.1 THE PETITIONER HAS NOT COMMITTED ANY SUBSEQUENT OFFENCES

Even marital rape is not a crime under IPC so sexual intercourse between the persons in marriage is not an
offence. It is part of right to life, right to family.

13
Amrit Singh v. The State of Punjab, 2021 (1) RCR (Civil) 726.
14
Rajwinder Kaur v. State of Punjab, 2014 (4) RCR (Criminal) 785.
15
Rajveer Kaur v. State of Punjab, 2019 (3) RCR (Civil) 478.
16
Soniya v. State of Haryana, 2021 (3) RCR (Criminal) 131.
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MEMORUNDUM ON BEHALF OF THE APPELLANT
II.1.2 FALSE ALLEGATION

It is humbly submitted before this Hon'ble Court that the offences u/s 9 & 10 of the POCSO Act has been
attracted to the instant case on the sole ground that the possibility of penetrative sexual assault cannot be
ruled out. It is humbly submitted that these are mere allegations made to defame the appellant.

In the case of Shajal Rai Alias Adrian v. State of Sikkim, 1718 the Court had laid down three provisions
regarding the credibility of sole testimony as below:

"The Apex Court observed that the testimony of the prosecutrix may be of three categories, first wholly
reliable, second wholly unreliable and third neither wholly reliable nor wholly unreliable. While explaining
the same, it was observed that if the testimony is wholly reliable, the sole testimony can be relied upon;
otherwise, its corroboration from other prosecution witnesses must be sought. In the case of Mohd. Ali alias
Guddu v. State of Uttar Pradesh,30 it was held that there could be no iota of doubt that a conviction can be
based on the sole testimony of prosecutrix even without corroboration if it is of unimpeachable character
and beyond reproach. It was observed that the testimony of the prosecutrix is placed on a higher pedestal
than an injured witness. But if the testimony is not reliable and doubted, then there is a requirement for a
search of corroboration."

Though the fact that Respondent is a minor under the POCSO Act, the Hon'ble Court did hold that she was
a major to the law she is subjected to. Therefore, even though she is held to be the victim of this case, it is
necessary to seek corroboration. In Gurcharan Singh v. State of Haryana,19 it was held that in order to make
sure that there is no false allegation, it is necessary to look into corroborate evidence. The testimony of the
victim should be in correspondence with the independent facts. But the present case, there is a conflict
between the facts of the case and the testimony of Respondent, and therefore Appellant should not be
without proper implications.

Sole testimony of the victim is belied by medical and scientific evidence. The Medical report by themselves
hasn't proven that penetrative sexual assault has taken place.

17
SLR (2021) Sikkim 181.
18
(3) WLN 18 (SC).
19
AIR 1972 SC 2661.
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MEMORUNDUM ON BEHALF OF THE APPELLANT
II.1.3 ESSENTIAL INGREDIENTS OF KIDNAPPING AND CRIMINAL INTIMIDATION IS
ABSENT

In the instant case, according to the respondent, Nazneen, being a minor, was taken away or kidnapped
from her lawful guardianship attracting the definition of Section 361 of the Indian Penal Code.

Section 361 of the Indian Penal Code reads as follows:

'Kidnapping from lawful guardianship. – whoever takes or entices any minor under sixteen years of age if a
male or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the
lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to
kidnap such minor or person from lawful guardianship.'
On careful reading of the language used in Section 361 of the Indian Penal Code, it can well be understood
that the main ingredient of the offence is to 'take or entice out of the keeping of the lawful guardianship'.
Therefore, in order to convict an accused under Section 363 of the Code of Criminal Procedure, it must be
proved that there was 'taking away' or 'enticement' on the part of the accused.20

The contention here is that there is no 'enticement' or 'taking away' of the victim by the appsssssellant. Until
and unless this essential ingredient is established, the offence of kidnapping cannot be said to have been
committed whether the victim was a minor or not. Nazneen has voluntarily eloped with Rahul. It has
already been stated in the facts that there was no force or taking away or enticement on the victim from the
side of the appellant. She had gone with the appellant on her own without being allured, enticed or
threatened.

The Hon'ble Apex Court in S. Varadarajan v. State of Madras21 discussed the meaning of 'take out of
keeping of the lawful guardian' elaborately. Where facts indicate that a girl left her father's protection
knowing and having the capacity to know the full import of what she was doing and voluntarily joined the
accused, it cannot be said that the accused had taken her away from the keeping of her lawful guardian
within the meaning of Section 361 of the Indian Penal Code.

20
Nantu Chakraborty Alias Gopal v. State of West Bengal, MANU/WB/0852/2012.
21
AIR 1965 SC 942
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MEMORUNDUM ON BEHALF OF THE APPELLANT
In Ravi Kumar v. State,22 the Hon'ble Division Bench of the Delhi High Court found that there was no
taking or enticing away and, therefore, essential ingredients of the offence of kidnapping was missed. The
victim reached the age of discretion, at her own volition, accompanied the accused and got married to him
and was desirous of living with him, no offence under Section 363 of the Indian Penal Code is said to have
been committed by the accused.
In Ajit Singh v. State of Haryana, 35 the Punjab and Haryana High Court also took the view that when the
minor girl was in love with the accused, and she herself forced to accompany the accused to another place,
it cannot be said that the accused allured, enticed or threatened the victim and thereby committed any
offence under Section 363 of the Indian Penal Code.

36
In Laddi @ Balwinder Kumar v. State of Punjab & Ors, it was held by the Hon'ble judge of Punjab and
Haryana High Court that even if the girl was 17 years of age, she herself having left her house and having
solemnized marriage, no offence under Section 363 of the Indian Penal Code would be made out.

Furthermore, if a minor girl has voluntarily gone with another person and was not induced but was engaged
in a romantic relationship with him, it will not fall under section 363 IPC for the offence of kidnapping. 23

The expressions 'taking' and 'enticement' independently have two different connotations.
Neither of the expression attracts the case when the girl of her own accord goes out of the custody of her
guardian. The victim having voluntarily eloped with the appellant, the offence u/s 361 of the IPC cannot be
attracted in the instant case.

Additionally, since the appellant has used no amount of threat towards Nazneen, the offence u/s 503 and the
punishment u/s 506 of the IPC cannot be attracted to the instant case.

Since none of the offences that have been alleged to have been committed by Rahul can be proved because
of the lack of its ingredients, it can be concluded that the appellant has not committed any subsequent
offences.

II.2. HAS IMMUNITY FROM THE OFFENCES AS NO OFFENCE HAS BEEN COMMITTED.

22
(2005) II DMC 731 (DB) 35 2007 CRI. L.J. (NOC) 675 (P & H) 36 2012 (3) Cri 3 (P&H).
23
Sk. Sajid v. State of West Bengal, MANU/WB/0150/2021.
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MEMORUNDUM ON BEHALF OF THE APPELLANT
From the aforementioned, it can be concluded that the appellant has committed no subsequent offences, and
hence he has immunity. The offences mentioned in the FIR were in the face value and are mere fabricated
allegations made in an attempt to defame the appellant.24

The respondent has done no prima facie offences and therefore is liable to gain immunity. When the FIR
has been made under baseless allegation, the accused can gain immunity from prosecution if it is not
backed by corroboration.25

ISSUE NO. 3

3. WHETHER THE FIR AGAINST APPELLANT IS LIABLE TO BE QUASHED OR NOT?

3.1 NO MENS REA

For a crime to be committed, the act should be accompanied by a guilty mind. Here the petitioner has no ill
intention, and therefore he lacks the essential element of men's rea, and there are no charges that can be
framed against him. Moreover, the act of marriage was a common discussion made by both parties, and
Rahul alone cannot be held responsible for this. And all those alleged accusations are made in the light of
being in a marriage.

3.2 NO PRIMA FACIE CASE AGAINST THE APPELLANT

In the instant case, the Appellant has committed no subsequent offences. Hence, there exists no prima facie
case against the appellant.

State of Haryana v. Bhajan Lal26 and R.P. Kapur v. State of Punjab27has laid down some parameters

● If the allegations made in the FIR/complaint, even if taken at face value, do not prima
facie constitutes any offence or make out any case against the accused.

24
Haji Sayyad v. State Of M.P., (2012) ILR(MP) 2610.
25
State of H.P. v. Shree Kant Shekari, (2004) 8 SCC 153.
26
AIR 1992 SC 604.
27
AIR 1960 SC 866.
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MEMORUNDUM ON BEHALF OF THE APPELLANT
● If the allegations made in the FIR/complaint and the evidence collected in support of the same do not
disclose the commission of any offence and do not build any case against the accused.
The Court in the case of Shatrughan Singh Sahu v. State of Chhattisgarh 28observed that when prima facie
provisions of Section 383 of IPC are not made out, then the offence under Section 388 of IPC cannot be
made out, because unless and until the ingredient of extortion is established, then only the alleged offence,
prima facie, is said to have been committed by the petitioner. Since the ingredients of Section 383 of IPC
are not made out, the ingredient of Section 388 of IPC cannot be prima facie established; therefore,
registration of FIR, prima facie, is nothing but an abuse of the process of law.
Since the essential ingredients of the alleged offences have not been met, there exist no prima
facie case.
On the strength of the above arguments, it is prayed that the impugned FIR be quashed.

ISSUE NO. 4

4. WHETHER THE HON’BLE HIGH COURT UNDER THE SHEILD OF ARTICLE 21 OF THE
CONSTITUTION INDIRECTLY PROMOTED CHILD MARRIGE AND BY PASSED ANY
OTHER SPECIAL STATUTE?

It is humbly submitted before the Hon’ble Court that the Hon’ble High Court of Punjab and Haryana did not
indirectly promote child marriage. The issue before the Court was regarding protection to the person’s life
and liberty only. There was no issue for the Court to look into the validity of the marriage. Courts across the
country provide protection to couples without examining the validity of the marriage or whether the
marriage has promoted child marriage.

Even if we the court were to look into this, Respondent who is governed by the Muslim Personal Law, can
enter into a marriage as she has crossed puberty. Every Mohammedan of sound mind, who has attained
puberty, may enter into a contract of marriage. 29 Under the Mahomedan Law, a girl, who has attained the

28
WPCR No. 133 of 2017 High Court of Chhattisgarh
29
Mulla, Principles of Mahomedan Law 339 (LexisNexis, Haryana, 22nd edn., 2017).
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MEMORUNDUM ON BEHALF OF THE APPELLANT
 age of puberty, can marry without the consent of her parents. 30 'Puberty' under Muhammadan law is
presumed, in the absence of evidence, on completion of the age of 15 years.31

Further, Section 2 (a) of the Majority act, 187532 provides that the Act shall not affect the capacity of any
persons to act in matters relating to marriage, dower, divorce and adoption. Thus, the law recognizes the
marriage of minors who have attained puberty as valid.33 Miss Nazneen is governed by the Muslim Personal
Law (Shariat), and the same would be applicable to her for the purpose of marriage and dissolution of
marriage.3435

In Neelam Rani v. State of Haryana,24 the Court held that the girl, who was aged about 17, had reached the
age of discretion and the marriage was voidable at the option of the minor girl, and not void under
Prohibition of Child Marriage Act. Whether a minor girl has reached the age of discretion is a question of
fact which the court has to decide based on the facts and circumstances of each case. 36

1.1 THE MARRIAGE BETWEEN THE APPELLANT AND MS NAZNEEN IS A VALID

MARRIAGE, NOT A CHILD MARRIAGE.

Respondent being a Mohammadan, is governed by the Muslim Person law. Every Mohammedan of sound
mind, who has attained puberty, may enter into a contract of marriage.37 'Puberty' under Muhammadan law
is presumed, in the absence of evidence, on completion of the age of 15ss years.38
Respondent being above the age of 15 years, can enter into a contract of marriage.

Under Hindu Marriage Act, Child marriage is treated as valid and not a void marriage. 39
The marriage between Appellant and Respondent is a valid one, the appellant of the instant case cannot be
charged u/s 9 & 10 of PCM Act.

30
Md. Idris v. State of Bihar, 1980 Cri LJ 764.
31
Id. 17, A. Yousuf Rawther v. Sowramma, AIR 1971 Ker 261.
32
The Majority Act, 1875 (Act No. 9 of 1875) s. 2 cl. a.
33
Court on its Own Motion (Lajja Devi) v. State, 193 (2012) DLT 619.
34
Mohd. Samim v. State of Haryana, 2019 (1) RCR (Criminal) 685.
35
(1) RCR (Civil) 636.
36
T. Sivakumar v. The Inspector of Police, AIR 2012 Mad 62.
37
Mulla, Principles of Mahomedan Law 339 (LexisNexis, Haryana, 22nd edn., 2017).
38
A. Yousuf Rather v. Sowramma, AIR 1971 Ker 261.
39
Court on its Own Motion (Lajja Devi) v. State, 193(2012) DLT 619.
20
MEMORUNDUM ON BEHALF OF THE APPELLANT
 ISSUE NO.5

2. WHETHER IN SUCH CASES THE PERSONAL LAWS TAKE OVER OR IS IT THE SPECIAL
STATUTES THAT TAKE THE LEAD?

It is humbly brought to the attention the finding of the council on behalf of the appellant regarding the
conflicting nature of the personal laws and special statutes such as PCMA and POCSO.

5.1. THE PERSONAL LAWS AND SPECIAL LAWS ARE MEANT TO DEAL WITH DIFFERENT
SUBJECT MATTER:

It is humbly submitted before the Hon’ble Court that the personal laws and special statutes were never
intended to meddle with each other- the primary purpose of the special statutes like PCMA and POCSO.
The main purpose of the special statues like PCMA and POCSO were to curb child marriage and protect
child abuse respectively. When the PCMA was enacted, the legislature did not amend the personal laws
accordingly. Therefore, it is clear that these both were not meant to be melded with 40. it is possible that they
were to be exclusive of each other. 44 The laws like PCMA were enacted to provide girl children with better
treatment and an environment that they can thrive in.41

In this present case, the high court has only taken the personal laws into account regarding whether the girl
was of age and maturity as it was the law that she was subjected to, irrespective of the marriage.

5.2. INADEQUACY OF PERSONAL LAWS AND SPECIAL STATUES:

It is humbly submitted before the Hon’ble Court that personal laws and special statutes are inconsistent the
current social scenario. There is considerable inadequate of provision in the personal laws as well as the
special statutes to provide a regulatory basis for conducting personal affairs. The general laws are not
accommodating of interfaith couples. The available special marriage act is grossly inadequate and a total

40
Abdul Khader v. K. Pechiammal, CRL.R.C. No. 1441 of 2012 & M.P. No. 1. 44 Ms Seema Begaum v. State of Karnataka, ILR
(2013) Karnataka 1659.
41
Yunusbhai Usmanbhai Shaikh v. State of Gujarat, (2015) 3 GLR 2512.
21
MEMORUNDUM ON BEHALF OF THE APPELLANT
invasion of privacy.42 Marriage is to be something that should be in the liberty of the parties. There is also
the issue of the age of consent and reaching maturity. These both are very trivial as every religion has a
different stand for this. Its humbly submitted that there an issue of religious conversion for the sake of
marriage to the person of one's choice. Many couples are forced to convert to escape the dangers that the
special marriage act exposes them with.43 The constitution provides every citizen with the right to practice
the religion of their choice. 44 This should not be put into the bargain for the sake of marrying one's choice. 45
The inadequacy of the personal laws and special statutes was pointed out in the case of Lata Singh v. State
of Uttar Pradesh46.
"The caste system is a curse on the nation, and the sooner it is destroyed, the better. In fact, it is dividing the
nation when we have to be united to face the challenges before the nation unitedly. Hence, inter-caste
marriages are, in fact, in the national interest as they will result in destroying the caste system. However,
disturbing news is coming from several parts of the country that young men and women who undergo inter-
caste marriage are threatened with violence, or violence is committed on them. In our opinion, such acts of
violence or threats or harassment are wholly illegal, and those who commit them must be severely
punished. This is a free and democratic country, and once a person becomes a major, they can marry
whosoever they like. Suppose the boy or girl's parents do not approve of such inter-caste or inter-religious
marriage. In that case, the maximum they can do is cut off social relations with the son or the daughter.
Still, they cannot give threats or commit or instigate acts of violence and cannot harass the person who
undergoes such inter-caste or inter-religious marriage."

The court, while deciding the case of Joseph Shine v. Union of India47, elaborated on the words of Edmund
Burke, a famous thinker "a good legislation should be fit and equitable so that it can have a right to
command obedience" that laws and legislations are necessary to serve and promote a good life. The state
should be able to provide both without compromising the other. And therefore, couples like Mr. Rahul and
Miss Nazneen would not have been exposed to the threat of honor killing and so on.

42
Pranav Kumar Mishra v. Govt. of NCT, Delhi WP(C) No. 748/2009.
43
Jaydipkumar Bharatbhai Patel v. State Of Gujarat,SCR.A/5254/2022 (Gujarat High Court).
44
The Constitution of India, art. 25.
45
Anees Hameed v. State of Kerala,2017 (5) KHC 101.
46
AIR 2006 SC 2522.
47
AIR 2018 SC 4898.
22
MEMORUNDUM ON BEHALF OF THE APPELLANT
 PRAYER

Wherefore, in the light of the issues raised, arguments advanced and authorities cited, the Appellant most

humbly and respectfully prays that this Hon’ble Court of India may be pleased to:

1. The High Court of Punjab and Haryana was justified in granting protection to the individual.

2. The FIR against the appellant be quashed.

AND/OR

Pass any such orders, or issue such direction, or grant such relief, that this Hon’ble Court may deem fit in

the interest of justice, equity, and good conscience.

And for this act of kindness, the appellant shall duty bound, forever pray.

Date

[Sd/-]

COUNSEL FOR THE APPELLANT

23
MEMORUNDUM ON BEHALF OF THE APPELLANT