TC-39

LAW COLLEGE DEHRADUN, FACULTY OF UTTARANCHAL UNIVERSITY

NATIONAL MOOT COURT COMPETITION - 2019

BEFORE THE HON’BLE SUPREME COURT OF INDISTAN

RATHIN & ORS.(PETITIONER)

V.
RACHEL & Ors.(RESPONDENT)

INCLUDE
SLP NO._____/2019
RAKSHAKDAYANI(PETITIONER)
V.
UNION OF INDISTAN(RESPONDENT)

AND
W.P NO._____/2019
TAUHID-THE SPIRITUAL LIFE(PETITIONER)
V.
UNION OF INDISTAN(RESPONDENT)

PETITION INVOKEDUNDER ARTs 32, 139A& 136 OF

THE CONSTITUTION OF INDISTAN

___________________________________________________________________________
UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE &HIS LORDSHIP’S
COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF INDISTAN

MEMORANDUM OF ARGUMENTS FOR THE PETITIONER

PETITIONER TC-39

TABLE OF CONTENTS

LIST OF ABBREVIATIONS……….………………………………………….................3-4

INDEX OF AUTHORITIES………………………………….……………………….......5-8

STATEMENT OF JURISDICTION………………………………………………………9

STATEMENT OF FACTS……………………………………………..……………….10-11

STATEMENT OF ISSUES……………………………………………………….………..12

SUMMARY OF ARGUMENTS…………………………………………………..…....13-14

ARGUMENTS ADVANDCED …………………………………...……………..…...15-33

ISSUE-1

[1]. WHETHER THE PETITIONS ARE MAINTANAIBLE?

[1.1]. Writ Petition Filed By Rakshakdayini Is Maintainable…………...……….…….…15-16

[1.2.].Special Leave Petition byTauhid-The Spiritual Life Is Maintainable…….……….16-19

[1.3.]. Petition Filed By Rathin Is

Maintainable…………….…………………………………………………………..…….19-20

ISSUE-2
[2.]. WHETHER SECTION 13 (ii) & (vi) OF HMA IS CONSTITUIONAL?

[2.1.].Hindu Marriage Cannot Be Dissolved by Conversion or

Renunciation……………………………………………………………………...……20-21

[2.2.].It’s Bearing on Right to Religion………………………………….………………….21-

22

ISSUE-3

[3.]. WHETHER A STATELESS PERSON HAS THE PROTECTION OF

FUNDAMENTAL RIGHTS AND WHAT ROLE HAS A MARRIAGE TO PLAY IN
DETERMINING THE CITIZENSHIP?
[3.1.].The Stateless Person Does Not Have the Protection of Fundamental
Rights……………………………………………………………………………….…….23-24

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[3.2.].A Marriage Has a Role to Play in Determining the Citizenship of aStateless

Person…………………………………………………………………………….………24-26
ISSUE-4
[4.].WHETHER CONSTITUTIONAL PRINCIPLES AND HUMAN RIGHTS
PREVAIL OVER DISPUTES OF INTERNATIONAL NATURE ARISING FROM
PERSONAL LAWS, AND SCOPE OF JURISDICTION OF DOMESTIC COURTS
THEREOF.
[4.1] Constitutional Principles And Human Rights Does Not Prevail Over Disputes Of
International Nature Arising From Personal
Laws……………………………………………………26-27
[4.2] Scope Of Jurisdiction Of Domestic Courts Thereof………………………………27-29
ISSUE-5
[5.].WHETHER THE DECREE PASSED BY FAMILY COURT IS APPROPRIATE.
[5.1]. Adultery Once Condoned Cannot Be Formed as a Ground of Divorce……….…...30
[5.2]. No Decree of Judicial Separation Has Been Passed……………………………..…30-32
[5.3.]. Restitution of Conjugal Rights Was Declined inappropriately…………………....32-33

PRAYER……………………………………………...……………………………..………39

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LIST OF ABBREVIATIONS

& And

¶ Paragraph

AP Andhra Pradesh

AIR All India Reporter

Art. Article

CBI Central Bureau of Investigation

C.J Chief Justice

Const. Constitution Of India

DMC District MunsifCourt

Ed. Edition

Govt. Government

HC High Court

Hon’ble Honourable

ICJ International Court Of Justice

ICR Industrial Cases Reports

Invt. Investment

IR Industrial Research

Ltd. Limited

Mfg. Manufacturing

NGO Non-GovernmentOrganization

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NO. Number

NOC No Objection Certificate

Oth. Others

PIL Public Interest Litigation

SC Supreme Court

SCC Supreme Court Cases

SLP Special Leave Petition

SCR Supreme Court Reports

Subs. Substitution
United Nations High Commissioner for
UNHCR
Refugees
UOI Union of India

U.S. United States of America

v. Versus

Vol. Volume

W.e.f. With effect from

WP Writ Petition

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INDEX OF AUTHORITIES

Statues

 The Constitution of India, 1950.

 Hindu Marriage Act, 1955.
 The Citizenship Act, 1955.
 Foreigner’s act, 1946.

Lexicons

 Garner Bryana, Black’s law Dictionary, 7th Ed. 1981, and West Group.
 Catherine Soanes, Oxford Dictionary Thesaurus, 40th Ed., 2006, Oxford University
Press.

Legal Database
 www.scconline.com
 www.lexisnexis.com/in/legal
 www.manupatra.com
 www.heinonline.com
 www.westlaw.com

Books
1. Durga Das Basu, Commentary on the Constitution of India, Volume 4 (Hon’ble Mr.
Justice Y.V. Chandrachud Justice S.S.Subramanji Justice B.P. Bannerjee, 8th ed., 2008).
2. Durga Das Basu, Commentary on Constitution of India, Volume 5 (Hon’ble Justice CK
Thakker Justice SS Subramani Justice TS Doabia Justice BP Banerjee).
3. MP Jain, Indian Constitutional Law, (7th Edition).
4. Dr. J.N. Pandey, Constitutional Law of India
5. Marriage, Seperation and Divorce (AshutoshMookerjee, 4th ed., 2010)
6. Mulla Hindu Law (Sir DinshawFardunjiMulla, 21sted.)
7. Hindu Law Digest ( V.R. Choudhary) 2010
8. Mayne’s Hindu Law and Usage 19th ed., (Justice Ranganath Mishra)
9. International Law and Human Rights (M.P. Tandon&V.K. Amand)
10. International Law ( Malcolm N. Shaw)

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Cases

Title Citation Appear on

Sr. No.
page(s)
1. Achyutadhicary v. State of AIR 1963 SC 1039 19
Bengal
Andal Vaidyanath v, Abdul AIR 1946 Madras 446 22,23, 33
2
Allamvaidya
Avinash Prasad Shrivastav v. AIR 1964 AP 486; 1963 33
3
Chandra Mohini AWR 363
Bina tewari v. Chandra Prakash AIR (1996)SCC 606 33
4
Munshi
C.C.E. v. Standard motor AIR 1989 SC 1298 18
5
products.
CF. Burnham v. Superior Court 495 U.S. 604, 610 n.1 29
6
of California (1990) (US)
Commissioner of customs v. (2016) 1 SCC 91 28
7
State of Kerala
8 Cowasji Patuch v. Shehra Patuck AIR (1938) Bombay 81 33
Dale and Carrington Investment (2005) 1 SCC 212 18
9
Limited v. P.kPrathapan
10 Divya Pharmacy v. UOI 2018 SCC Utt1035 28
Dilip S. Dahanukar v. Kotak (2007) 6 SCC 528 21
11
Mahindra o. Limited
12 Githa Hariharan v. RBI AIR 1999 SC 1149 28
Haryana State Industrial (2007) 8 SCC 359
13 Corporation v. Corporation 18
Manufacturing Company
Hirachand Srinivas (2001) DMC 616(SC) 33
14
Managoankar v. Sunanda :AIR 2001 SC 125

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International Shoe Co. v. 326 U.S. 310 (1945) (US) 29

15
Wahington
16 Jagitsingh v. GurmeetKaur (1996) DMC 450 31
17 Janta Dal v. H.S. Choudhary (1992) 4 SCC 305 16
Janshed Hormusji Wadia v. (2004) 3 SCC 214 18
18
Board of Trustees
Kathi Ranning Rawat v. The AIR 1952 SC123 19
19
State of Saurashtra
KesavanandaBharti v. State of (1973) 4 SCC 225 27
20
Kerala
Kochunni v. The state of AIR 1959 SC 725 17
21
Maharashtra
L.K. Venkate v. Union of India AIR 2012 20
22
&ors.
Madanan & Setha Ramalu v. AIR 2014 (NOC), 21
23
MadananVimla 412(AP)
Md. Ishaque v. The Under secy. AIR 1990 SCC 5 26
24
To the Govt. of India &ors.
Mumbai Kamgar Sabha v. AIR 1976 SC 1455 16
25
Abdulbhai
Narpat Singh v. Jaipur (2002) 4 SCC 666,at 664 17
26
Development authority
National legal service Authority (2014) 5 SCC 438 28
27
v. UOI &ors.
28 Nirmala v. Pritam Singh (1988) 1 HLR 760 33
Om PrakashSood v. Union of Civil appeal no. 9169 to
29 20
India 1996
Olga Tellis v. Bombay AIR 1986 SC 180 16
30
Municipal corporation
Pawan Kumar v. State of (2003) 11 SCC 241 18
31
Haryana
People’s Union for Civil (2004) 2 SCC 476 28
32
Liberties v. UOI

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People’s Union for Democratic AIR 1982 SC 1743 16

33
rights v. UOI
34 Piper Aircraft v. Reyno U.S. 235, 261 (1981) (US) 29
Prem Chand Garg v. Excise AIR 1963 SC 996 18
35
Commissioner
36 Pritam Singh v. The State AIR 1950 SC 169 19
37 Ram NivasRathore v. Sumitra (2004) DMC 442(MP) 33
38 Ram Piari v. Bhagwat AIR 1990 SC 1742 19
39 R.D. Upadhyay v. State of A.F (1996) 3 SCC 3 28
R(European Roma Rights) v. (HL{E}) [2004] UKHL 55 30
40
Prague Immigration (11)
Ratilal Panachand Gandhi v. AIR 1954 SC 388 23
41
State of Bombay
42 Saurabh Chaudhary v. UOI AIR 2004 SC 2212 23
43 Sharda Rani v. Mangat Ram (1990) DMC 451 33
Sir Chunilal Mehta & Sons, Ltd. AIR 1962 SC 1313 18,19
44 V. Century Spinning & Mfg.
Company Ltd.
45 Sital Das v, Sant Ram AIR 1954 SC606 22
46. Smt. Rasna v. Arun 1997(2) HLR 596(MP) 22
47 S.P. Gupta v. UOI AIR 1982 SC 19 16
48. Som Dutt v. Raj Kumar 1986 P&H 197 31
Sripur Paper Mill v. Common AIR 1970 SC 1250 20
49
Wealth tax
State(CBI) v. Kilchine AIR 1996 20
50
Aleksandre & ors.
State Trading Corp. of India Ltd. AIR(1963) SCC 17 25
51 V. Commercial Tax officer
&ors.
Sukhdev & ors. v. Bhagat Ram AIR 1975 SC 1331 16
52
&ors.
56 Sumati Dayal v. CIT (1995) 214 ITR 801 19
57 Tapan kumar v. Jyotsana 1997 Calcutta 134 31

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58 Trop v. Dulles 356 U.S. 86, 102 (1958) 25

Trupti Das v. Rabinranath (2003) DMC 427 33
59
Mahopatra
Ventipalli Neelaveni v. 1(1989) DMC 256 22
60
Ventipalli Venkateshwar Rao

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STATEMENT OF JURISDICTION

The Hon’ble Supreme Court has exercised it’s power under Art. 139(A) of the Constitution
of Indistanand clubbed the following petitions together:

W.P____/2019

The petitioner has approached this Hon’ble Court under Art. 32of the Constitution of
Indistan.

S.L.P____/2019

The petitioner has approached this Hon’ble court under Art. 136of the Constitution
ofIndistan.

ANOTHER APPEAL HAS BEEN TRANSFERRED AND CLUBBED UNDER

ARTICLE 139A OF INDISTAN CONSTITUTION.

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STATEMENT OF FACTS

1. The Republic of Indistan is an independent “Union of States “which has owed to abide by
& implement the mandate of all International Human Rights instruments.
The Constitutional, legal & policy framework of the Republic of Indistan is pari
materiato the Republic of India.

2. Rachel David is a U.S. citizen & strong supporter of Jewish Movement. An International
org. “Tauhid-The Spiritual Life” filed a petition to ban ‘Zionist Movement’ responding to
that it was barred by the U.S. Const. Rachel during her management course met an
Indistan boy Rathin Raj Sharma & soon they fell for each other & decided to marry.
Rachel got influenced by Hinduism & decided to convert before marriage. Soon they got
married according to Hindu Marriage Act, 1955 in Indistan & later got registered in US.

3. They move to Sweden & she relinquished US. Citizenship & became Swedish Citizen &
due to loss in business they moved back to Indistan & Rachel surrendered Swedish
Citizenship & applied for Indistan Citizenship. One day Rathin disclosed about adulterous
relationship with a married lady on which he is facing criminal trial for the offence of
rape.
4. Meanwhile her application for citizenship got rejected due to her past criminal record.
However, with the passing of time & due to distrust on Rathin, her faith in Hinduism
weakened & she declared before the Rabbi that she has relinquished the Hindu religion &
now reconverted to Judaism.

5. After that she applied in the family court for the decree of divorce under Sec.13(1) on the
ground on Adultery, Conversion & Renunciation in order to settle in Israel. Rathin
claimed the defense of privileged communication & counterclaimed for the decree of
restitution of conjugal rights but the decree of divorce was passed by the family court.

6. Rathin filed an appeal before Delhi HC on the ground that family court passed the decree
of divorce without appraising evidence offered by him. One NGO, Rakshakdayini filed a
writ petition for quashing the decree of divorce & declared in the public interest that no
spouse should be withdraw on the ground of conversion. At the same time an Islamic
International Organization filed a petition before Delhi HC under Art. 226(1) for

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preventing Rachel from leaving Indistan& joining Israel, but the petition got rejected.
They filed an appeal under Art.136(1) against the decision of Delhi HC that the matter is
of “Grave Public Concern”.

7. The supreme court of Indistan, on a prima facie basis, clubbed both the petitions viz. the
petition filed by “Tauhid-The spiritual Life” & that of “Rakshakdayini”. It also withdrew
the appeal of Rathin from Delhi HC in itself & clubbed the petitions as the matter in them
is inter connected.

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STATEMENT OF ISSUES

WHETHER THE PETITIONS ARE MAINTAINABLE OR NOT?

II

WHETHER SEC. 13 (1) (ii) & (vi) OF HINDU MARRIAGE ACT IS

CONSTITUTIONAL?

III

WHETHER A STATELESS PERSON HAS THE PROTECTION OF

FUNDAMENTAL RIGHTS&WHAT ROLE HAS A MARRIAGE TO PLAY IN
DETERMINING THE CITIZENSHIP?

IV

WHETHER CONSTITUTIONAL PRINCIPLES &HUMAN RIGHTS

PREVAIL OVER DISPUTES OF INTERNATIONAL NATURE ARISING
FROM PERSONAL LAWS & SCOPE OF JURISDICTION OF DOMESTIC
COURTS THEREOF.

WHETHER THE DECREE PASSES BY FAMILY COURT IS NOT

JUSTIFIED.

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SUMMARY OF ARGUMENTS

I. WHETHER THE PETITIONS ARE MAINTAINABLE.

The counsel on the behalf of the petitioner most humbly submits that the instant petitions are
maintainable before the Hon’ble Court as:

1. The Writ Petition has been filed before this Hon’ble Court as it violates right to equality
before law &right to freedom of religion,which is a fundamental right. Moreover, the
petitioner has also exhausted other remedies before approaching this Hon’ble Court.
2. The SLP has been filed before this Hon’ble Court as it violates substantial question of law
of grave public concern. In addition to this, the Hon’ble Court has also erred in giving its
judgment while dismissing this petition.
3. The appeal filed by Rathin was being clubbed with other two petitions as it involves the
same substantial question of law.

II. WHETHER THE HINDU MARRIAGE CAN BE DISSOLVED ON THE

GROUND OF CONVERSION OR RENUNCIATION &IT’S BEARING ON
THE RIGHT TO RELIGION.
The counsel on the behalf of the petitioner most humbly submits that the Hindu
Marriage cannot be dissolved on the ground of conversion which is barred under
provisions of Section 23(1) (a), that the convert spouse cannot be allowed to take
advantage of his/her own wrong &renunciation does not affect a marriage tie, it is the
non-convert spouse, who can only seek matrimonial relief on this ground.

III. WHETHER A STATELESS PERSON HAS THE PROTECTION OF

FUNDAMENTAL RIGHTS &WHAT ROLE HAS MARRIAGE TO PLAY IN
DETERMINING THE CITIZENSHIP OF SUCH STATELESS PERSON.
The counsel on the behalf of the petitioner humbly submits that the fundamental
rights guaranteed under the Constitution of Indistan are only available to either
citizens or foreigners who have a citizenship of some other country. Providing
fundamental rights to Rachel would harm the communal harmony of Indistan&also
create tension between Indistan&Israel. Rachel is eligible to be considered for
Indistan citizenship. Since Rathin has all along being a citizen of Indistan therefore,
Rachel being his wife should be granted citizenship under Section 5(1)(c) as she

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hasacquired a right to be considered as a an Indistan citizen &therefore, the

cancellation of her citizenship application stands null &void.
IV. WHETHER CONSTITUTIONAL PRINCIPLES &HUMAN RIGHTS
PREVAILED OVER DISPUTES OF INTERNATIONAL NATURE ARISING
FROM PERSONAL LAWS, &SCOPE OF JURISDICTION OF DOMESTIC
CORTS THEREOF.

The counsel on behalf of petitioner humbly submits that the instant case involves a stateless
person whose identity is uncertain. Involving a person who is not a citizen of Indistan makes
the nature of the case international. Therefore, constitutional principles and human rights will
not prevail as it is a matter of international nature. The use of Jurisdictional Law has cast in
relief failures of imagination that are evident even in domestic cases. One such failure has
been that of the SC to take a view of jurisdiction when adjusting federal constitutional limits
on its exercise. Domestic jurisdiction is a relative concept, in that changing principles in
International Law have had the effect of limiting and reducing its extent and in that matters of
internal regulation may well have international repercussions and thus fall within the ambit of
International Law.

V. WHETHER THE DECREE PASSED BY FAMILY COURT IS JUSTIFIED.

The council on the behalf of petitioner humbly submits that the decree passed by the
family court is not justified as Firstly, adultery once condoned cannot be formed as a
ground a divorce Secondly, no decree of judicial separation has been passed
&Thirdly Restitution of Conjugal rights was declined inappropriately.

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ARGUMENT ADVANCED

[1] WHETHER THE PETITIONS ARE MAINTAINABLE ?

It is humbly submitted before the Hon’ble Court that the instant petitions are maintainable.
As the Hon’ble court has already clubbed the three petitions together &listed them for
arguments,the issue of sustainability &maintainability should not ordinarily arise. However,
the petitioners respectfully submit the following to affirm the maintainability of the cases
before the Court as [1.1] The petition filed by rakshakdayini under art. 32 is maintainable.
[1.2] The special leave petition filed by tauhid is maintainable.[1.3] The petition submitted by
rathin is maintainable.

[1.1] THE PETITION FILED BY RAKSHAKDAYINI UNDER ART.32 IS

MAINTAINABLE.

It is humbly submitted before the hon’ble court that the petition filed by Rashakdayini under
Art. 321 for quashing the decree of divorce&that no spouse should be allowed to withdraw
from marriage is maintainable on the ground as:

[1.1.1] Rakshakdayini Has A Locus Standi:

Locus Standi is a necessary element to substantiate PIL2 which Can be filed against a State
for the violation of Fundamental Rights3 and it must consult a public interest rather than a
private interest.4The rule of Locus Standi have been relaxed having sufficient interest in
proceeding of PIL will alone have a Locus Standi5&can approach the court to wipe out a
voilation of Fundamental Right6&genuine interaction of statutory provision, but not for
personal gain or private profit but for the public interest.7Since in the present case
Rakshadayini is filling this petition in the public interest and also challenging the

1
Art 32, the Constitution of India.
2
Mumbai Kamgar Sabha v. Abdulbhai, AIR 1976 SC1455.
3
Sukhdev & ors.v. Bhagat Ram &ors, AIR 1975 SC 1331.
4
People’s Union for Democratic rights v. UOI, AIR 1982 SC 1473.
5
S.P. Gupta v. UOI, AIR 1982 SC 149.
6
Janta Dal v. H.S. Choudhary, (1992) 4 SCC 305.
7
Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.

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constituional validity of section 13 (ii) as it provide or work as a restriction on fundamental

right to religon.Respondent may argue that Rakshadayni is not affected party to challenge
constituional validity of such law but after judicial verdict of India Young Lawyers
Association and oth. v State of Kerla8 where court has accepted such a PIL even party is
not directly affected from such law.

[1.1.2] This Petition Involves The Violation Of Fundamental Rights.

In the instant case there is voilation of Fundamental Rights; Right of Equality before Law
under Art.149&Right of Freedom of Conscience&Free Profession10, Practice&Propagation of
Religion under Art. 25.11

The Fundamental Right to Eqality before Law12under Art. 14 & Right to Freedom of
Religion13under Article 25 of the spouse has been violated. The spouse needs to give a
ground for divorce to the other spouse which constrains the Right to Religion14 which can
only be barred through subject to Public Morality, Order &Health.
In the present case, Rakshakdayini has locus standi as it is concerned about the Public interest
that no spouse should be allowed to withdraw from marriage on the ground of conversion15 as
it is a violation of Fundamental Right. Hence, it affect the Public Interest & theit voilates
equality as the convert spouse cannot claim for the decree of divorce, here Rachel has
reconverted, so she is not entitled for the decree of divorce.

[1.2] THE SPECIAL LEAVE PETITION FILED BY TAUHID IS MAINTAINABLE.

It is humbly submitted before this Hon’ble Court that, the SLP, which confers a discretionary
of widest amplitude on the court to be exercised for satisfying the demands of Justice16 filed
by the petitioner, ‘Tauhid- the spiritual life’ 17
is maintainable, as the matter involves a
substantial question of Law of Grave Public Concern. If the SC does not intervene, it will

8
Writ Petition (Civil) No. 373 OF 2006.
9
Art 14, the Constitution of India.
10
Art. 25, the Constitution of India.
11
Kochunni v. State of Maharashtra, AIR 1959 SC 725.
12
Art. 14, the Constitution of India.
13
Art. 25, the Constitution of India .
14
Art. 25, Constitution of India.
15
Moot Proposition ¶ 22.
16
Narpat Singh v. Jaipur Development Authority, (2002) 4 SCC 66, at 674.
17
Moot proposition ¶ 22.

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result in gross injustice & that, miscarriage of justice has already occurred, by the erring
judgment of the HC of Delhi, which declared that this issue involved multi-dimensional
International problems which a Domestic Court is incompetent to settle. Therefore, the
Special Leave Petition of the petitioner must be accepted, so that the Hon’ble Court can use
its wide jurisdiction conferred under Art. 13618 & to correct the wrong done by the decision
given by the HC of Delhi.

[1.2.1] Substantial Question Of Law Is Involved And Gross Injustice Has Been Done.

It is humbly submitted before the Hon’ble Court that the jurisdiction conferred under Art.
13619 on the SC is corrective one &not a restrictive one20 & can be invoked when a question
of Law of General public importance arises,21 by filing Special Leave Petition. It is well-
settled that illegality must not be allowed to be perpetrated &failure by the SC to interfere
22
with the same would amount to allowing the illegality to be perpetuated, therefore a duty is
enjoined upon the SC to exercise its power by setting right the illegality in the judgments.

Art. 13623 provides residuary power to the SC to do justice where the court is satisfied that
injustice has been done.24 Illegality should not be allowed to be perpetrated merely for the
sake of upholding technicalities.25

Firstly, the matter involves substantial question of Law that whether secularism of Indistan
authorises the state from preventing of a person from propagating religious movement.26

It is humbly submitted that where findings are entered without considering relevant materials
&without following proper legal procedure, interference of SC is called for.27 In the instant
case, the Hon’ble HC has erred in deciding a very substantial question of Law, related to the

18
Art 136, the Constitution of India.
19
Ibid.
20
Haryana state Industrial Corporation. v. Corporation mfg. co. (2007) 8 SCC 359.
21
Sir Chunilal Mehta & Sons, Ltd. v.Century Spinning & Mfg. Co. Ltd., AIR 1962 SC 1314.
22
Pawankumar v. State of Haryana, (2003) 11 SCC 241; SeeAlso, H.M. Seervai, Constitutional law of India,
Vol. 1, 832 (4th ed., universal law publishing, New Delhi, 2010); SeeAlso, Halsbury’s Laws of India, Vol. 35,
564 (2nd ed., Lexis-Nexis Butterworth Wadhwa, Nagpur, 2007).
23
Art 136, the Constitution of India.
24
C.C.E. v. Standard Motor Products , AIR 1989 SC 1298; See Also, H.M. Seervai , Constitutional Law of
India, Vol. 2, 845 (4th ed. Universal Law Publishing, New Delhi 2010.
25
Janshedhor musjiwadia v. Board of Trustees, Port of Mumbai, (2004) 3 SCC 214.
26
Prem Chand Garg v. Execise Commissioner, AIR 1963 SC 996.
27
Dale & Carrington invt. Ltd. .v. P.K. Prathapan,(2005) 1 SCC 212.

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balance made between the various rights which also includes Right to Life &Liberty28&Right
to Freedom of Religion.29

Whether a matter involves substantial question of Law, depends on whether it is of general

public importance, which directly or substantially affects the Rights of the parties, or it has
already been decided by the Highest Court30. It will, therefore, depend on the facts
&circumstance of each case whether a substantial question of Law is involved in the case31.

It is submitted that, the present case involves a matter of Grave Public Concern as it directly
&substantially effect the communal harmony of the country as the order is prejudiciary to
the interst of minority people &also the High Court had erred in dismissing the petition
without providing substantial reason.

Secondly, Grave miscarriage of justice has occurred because of this serious &flagrant
violation of Law has been committed by the HC32 for which interference of the SC is
required. The nature of communal harmony of our country & secularism of our country
boumds the SC to interfere into the matter to bar a person from supporting any religious or
regional movement outside the territory in whatsoever manner. 33

[1.2.2] Finding Of Facts May Give Rise To Substantial Question Of Law.

The SC is not precluded from going into the question of facts under Art. 13634, if it considers
it necessary to do so35. Art. 13636 uses the words ‘in any cause or matter’. This gives widest
power to this court to deal with any cause or matter 37. It is plain that when the SC reaches
the conclusion that a person has been dealt with arbitrarily or that a court or tribunal has not

28
Art 21, the Constitution of India.
29
Art 25, the Constitution of India.
30
Sir Chunilal Mehta & Sons, Ltd. V. Century Spinning & Mfg Co. Ltd., AIR 1962 SC 1314.
31
Sumatidayal v. CIT, (1995) 214 ITR 801.
32
Ram Piari v. Bhagwant, AIR 1990 SC 1742.
33
Moot proposition ¶ 3.
34
Art 136, the Constitution of India.
35
Kathiranningrawat v. the state of Saurashtra, AIR 1952 SC 123, see also, Achyutadhicary v. State of Bengal,
AIR 1963 SC 1039.
36
Art 136, the Constitution of India.
37
Pritam Singh v. The State, AIR 1950 SC 169.

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given a fair deal to a litigant, then no technical hurdles of any kind like the finality of finding
of facts, or otherwise can stand in the way of the exercise of this power.38

In the instant case, the HC, in haste, reached the conclusion that this issue involves multi-
dimensional International problems which a Domestic Court is incompetent to settle39 but the
case involves the Substancial question of law & also it involves the matter of “Grave Public
Concern”40.

[1.3]THE PETITION SUBMITTED BY RATHIN IS MAINTAINABLE.

It is humbly submitted before the Hon’ble court that the petition clubbed by Hon’ble SC as
matter of clubbing the petition is maintainable. Where cases involving the same or
substantially the same questions of Law are pending before the SC & one or more more HC
or before two or more HC &the SC is satisfied on its own motion or an application made by
the Attorney General of Indistan or by a party to any such case that such question are
substantial questions of Law of general importance, the SC may withdraw the case or cases
pending before HC or the HC’s & dispose of all the cases itself; provided that SC may after
determining the said question of Law return any case so withdrawn together with a copy of its
judgement on such questions to the HC from which the case has been withdrwan &the HC
shall on receipt thereof, proceed to dispose of the case in conformity with such judgement41.
Clause one of Art. 139(A)42 shows that the power to transfer the particular case or cases can
be exercised by this court either on its own motion or by a party to such cases provide that the
case involves the same or substantially the same questions of Law which is pending before
this court &one or more HC or before to or more HC & such question are substantial question
of general importance43.
The right of appeal under Art. 2144 from the judgement of conviction as under sec. 374 of
CrPC is a Fundamental Right. It is obvious neither can it be inferred with or impared nor can
it be subjected to any condition45.

38
Sripur Paper Mills v. Commissioner. Of Wealtht Tax, AIR 1970 SC 1520; See also, Om PrakashSood v.
Union of India, Civil Appeal no. 9169 of 1996.
39
Moot proposition ¶ 24.
40
Moot Proposition¶ 24.
41
Subs. By the constitution (44th amendment)act 1978, S. 21, for clause(1),w.e.f. 1-8-1979.
42
Art 139A, the Constitution of India.
43
L.k. Venkate v. Union of India & others AIR 2012; see also, state (CBI) v, Klichine Aleksandre & others AIR
1996.
44
Art. 21, the Constitution of India.

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In the instant case the other two petitions are interconnected as Rathin has filed an appeal for
quashing the decree of divorce, the NGO named Rakshakdayini has also filed a writ petition
to declare that no spouse should be allowed to withdraw from the marriage on the ground of
conversion46& the Islamic International Organisation has filed a petition for preventing
Rachel from leaving Indistan. Therefore, the matters are interconnected to each other &
hence the petitions are maintainable.

[2] WHETHER SECTION 13 (ii) & (vi) OF HMA IS CONSTITUIONAL?

It is humbly submitted before the Hon’ble court that Section 13 (ii) and (vi) is unconstituional
as [2.1] The Hindu Marriage should not be dissolved on the ground of Conversion To
Another Religion Or Renunciation Of The World [2.2] It Has Bearing On The Right To
Religion.

[2.1] THE HINDU MARRIAGE SHOULD NOT BE DISSOLVED ON THE GROUND

OF CONVERSION TO ANOTHER RELIGION OR RENUNCIATION OF THE
WORLD

It is humbly submitted before the Hon’ble court that the Hindu Marriage cannot be dissolved
by requesting party on the ground of his/her conversion to another religion or renunciation of
the world. In the instant case Rachel has relinquished the Hindu religion &reconverted to
Judaism & decided to renounce the world.
Firstly,Conversion of one of the spouses to any other religion affords a ground to the other
spouse for certain matrimonial relief. It is important to note that conversion does not
automatically affect a marriage tie, it is the non-convert spouse only who can see matrimonial
relief on this ground. This is barred even under provisions of Sec.23(1)(a)47, that the non-
convert spouse cannot be allowed to take advantage of his/her own wrong48&also Sec.
13(1)(ii)49of 'the Hindu marriage Act' itself shows that only one of the parties can be
aggrieved by the conversion of a Hindu into another religion &one of the parties who ceased

45
Dilips. Dahanukar v. Kotak Mahindra.o.Ltd. (2007)6 SCC 528.
46
Moot proposition ¶ 22.
47
S. 23(1)(a), Hindu Marriage Act, 1955.
48
Madan Seeth Raramalu v. Madan Vimla AIR2014(NOC),412(AP).
49
S. 13(1)(ii), Hindu Marriage Act,1955.

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to be Hindu by conversion cannot file a petition for divorce.50 In the case of Smt. Rasna v.
Arun it was held that the party who is aggrieved by the conversion of the spouse may pray
for dissolution of marriage, not the party who is converted.51 In case of Andal Vaidyanathan
v. Abdul Allam Vaidya,Leach C. J., speaking for the court has opined statutory marriage can
only be dissolved in accordance with the statute &a person married under the Act cannot
escape from this provision by merely changing his religion. It would appear to me that this
view point would apply with equal force in the present case.52 & also in case of Ventipalli
Neelaveni v. Ventipalli Venkateshwara Rao, the Andhra Pradesh HC held that ‘the husband
can file a petition against the wife only on the ground that she got herself converted from
Hinduism to any other religion &it is not open to the husband to invoke the provisions of the
section &seek dissolution of the marriage on the ground of his own conversion from
Hinduism to any other religion.53 Therefore Rachel cannot seek any matrimonial relief on this
ground.
Secondly, conversion and Renunciation of one of the spouse to any other religion affords a
ground to the other spouse for certain matrimonial relief. Morever such a law does not
equates both the party to the case as it provide a benefit or ground of divorce to one spouse
which act as a restriction to other spouse freedom of religon .such a classification is not build
reasonably and faily to qualify the test of reasonable classification 54 which leads to voilate
fundamental right of equality.

[2.2] IT HAS BEARING ON THE RIGHT TO RELIGION.

It is humbly submitted before the Hon’ble court that Hindu marriage is not allowed to be
dissolved on the ground of conversion of the requesting party. In the case of, Andal
Vaidyanathan v. Abdul Allam Vaidya, Leach C. J. speaking for the court has opined that a
statutory marriage can only be dissolved in accordance with the statute &a person married
under the Act cannot escape from this provision by merely changing his religion. It would
appear to me that this view point would apply with equal force in the present case. 55 It would,
therefore, appear to me that the appellant is entitled to move the petition under Section

50
S. 13(1)(ii), Hindu marriage act, 1955.
51
1997(2)HLR 596(MP).
52
AIR. 1946 Madras 446.
53
1(1989) DMC 256.
54
Saurabh Chaudhary v UOI AIR 2004 SC 2212.
55
AIR. 1946 Madras 446.

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13(1)(ii)56 of the Act &cannot be debarred at the threshold. In the instant case Rachel cannot
seek divorce merely on changing her religion & take advantage of her conversion.
Moreover such a conversion is a part of freedom of religion of Rachel and such conversion
should also not provide a ground for divorce to any of the party. Since right to religion
include right to profess any religion which include conversion therefore it cannot be restricted
of restrained by any other factor and it should not form a ground for divorce.
Right to religion is only subjected to public order, morality and health making conversion a
ground for divorce leads to make it a restriction outside ambit of public morality, health and
public order .Mr. Justice Mukerjea who once again delivered the judgment of the Supreme
Court in the Ratilal case57 said: “Thus, subject to the restrictions which this Article imposes,
every person has a fundamental right under our Constitution not merely to entertain such
religious belief as may be approved of by his judgment or conscience but to exhibit his belief
and ideas in such overt acts as are enjoined or sanctioned by his religion and further to
propagate his religious views for the edification of others”.
Respondent may argue that the case fall within the ambit of public morality but if we closely
analyses judgments of Sabrimala temple58 we will find it is not public morality but
constitutional morality which is required to be taken into consideration and such morality
includes right to equality.
Therefore, marriage should not be dissolved by changing the religion of a person under
Hindu Marriage Act and Section 13 1 (ii)& (vi) are unconstitutional as they violates right to
equality and freedom of religion.

[3] WHETHER A STATELESS PERSON HAS THE PROTECTION OF

FUNDAMENTAL RIGHTS UNDER THE INDISTAN CONSTITUTION, IF SO,
WHAT IS THE SCOPE OF SUCH PROTECTION &WHAT ROLE HAD A
MARRIAGE TO PLAY IN DETERMINING THE CITIZENSHIP OF SUCH
STATELESS PERSON.

It is humbly submitted before the Hon’ble court that a stateless person has no protection of
Fundamental Rights under the Indistan Constitution as [3.1.]Stateless person does not have

56
Sec 13(1)(ii), Hindu Marriage Act, 1955.
57
Ratilal Panachand Gandhi v. State of Bombay, AIR 1954 SC 388.
58
Supra note 8.

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the protection of fundamental rights. [3.2.]A marriage has a role to play in determining the
citizenship of a stateless person.

[3.1] THE STATELESS PERSON DOES NOT HAVE THE PROTECTION OF

FUNDAMENTAL RIGHTS.

It is humbly submitted before the Hon’ble court that the Fundamental Rights guarenteed
under the Constitution of Indistan are only available to either Citizens or to
Foreigner.59A Foreigner is any person who is not a national of the country in which they are
residing60 or temporarily sojourning but is a Citizen of any country also it denotes a person
who is not a Citizen or subject of the state or country of which mention is made, or any one
owing allegiance to a Foreign state or sovereign. In International Law, a stateless person is
someone who is "not considered as a national by any state under the operation of its Law".61
Therefore, taking in consideration the instant case, Rachel is a stateless person who does not
have Citizenship of any country & therefore she will not have the protection of Fundamental
Rights under the Constitution of Indistan.
Human Rights violations, inter-ethnic conflict, state succession, &forced displacement often
touch on nationality issues, increasing the risk of statelessness.
In the instant case, the respondent Rachel comes form an Orthodox Jewish family who are
straunch supports of the occupation of Palestinian territories by Israel &Jewish settlement
there. The petitioner Tauhid- The Spiritual Life has also filed a petition earlier before the US
Federal Government to ban Jewish Americans from supporting the Zionist Movement of
Israel. Responding to which the US Federal Government banned American citizens from
supporting any religious movement outside the territories of US according to the secular
values of the US Constitution.62
Corresponding to the US Constitution, the secular values of Constitution of Indistan should
also ban its Citizens from supporting any such religious movement.
Not doing this would not only harm the secularism of the country but also disturb the
communal harmony of the country. Moreover, the respondents inclination towards supporting

59
M Laxmikanth, Indian Polity for Civil Services Examinations, 7.1 (3rded.)
60
S. 2(a) , The foreigners act, 1946.
61
1954 convention related to the status of stateless person, UNHCR.
62
Moot proposition ¶ 3.

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the Jewish movement against the muslims of Israel would hurt the sentiments of the muslim
minority in Indistan which would again disturb the communal harmony of Indistan.
The Part III of the Constitution of Indistan, which proclaims Fundamental Rights, was very
accurately drafted, delimiting those Rights like Freedoms of Speech & Expression, The Right
to Assemble Peaceably, The Right to Practise any Profession, etc., as belonging to “Citizens”
only.63
Stateless persons are not only without the diplomatic protection of any state, they are also
refused enjoyment of rights dependent on reciprocity. Nationality is important to the
individual not only with regards to political rights &priviledged but also because his civil
status &capacity may be dependent upon it. There are many essential rights, such as, personal
capacity, family rights, matrimonial regime &succession, to move able property which an
individual cannot enjoy in a normal way so long as his personal state which determines these
rights is in doubt.
A stateless person may not be able to gain employment, obtain public services such as health
care & education, participate in ploitical processes, move about freely, avoid labor
exploitation, or have access to courts. This reality leads some to refer to Citizenship as “the
right to have rights”.64 Without legal identity, a person cannot assert civil &political rights.

Granting fundamental rights to such a person which also include the Right to Freedom of
Speech &Expression under Art. 19 of the Constitution of Indica65 would also create a sense
of distrust &tension between the International Relations of Indistan & Israel as the
Respondent would openly protest against the muslims of the country & support the Zionist
Movement.66

[3.2] A MARRIAGE HAS A ROLE TO PLAY IN DETERMINING THE

CITIZENSHIP OF A STATELESS PERSON.

63
State Trading Corp. of India Ltd. v. Commercial Tax Officer &Ors. AIR (1963) SCC 17.
64
Trop v. Dulles (U.S) 356 US 86 (1958,SC OF US) 86, See also Thomas Hammarburg, Human Rights
Commissioner,
Council of Europe. “Viewpoint : No One Should Have to Be Stateless in Today’s Europe” (June
9, 2008), available at http://www.coe.int/t/commissioner/Viewpoints/080609_en.asp (stating
that “Having a nationality means in both law &practice to possess ‘a right to have rights’”).
65
Art. 19, the Constitution of India.
66
Moot proposition ¶ 3.

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It is humbly submitted before the Hon’ble court that a person who is married to a citizen of
Indistan & is ordinarily resident in Indistan for seven years before making & application for
registration.67
For the purpose of clause (c), an applicant shall be deemed to be ordinarily resident in
Indistan if-
(i) He has resides in Indistan throughout the period if twelve months immediately
before making an application for registration.
(ii) He has resided in Indistan during eight years immediately preceeding the said
period of twelve months for a period of not less than six years.68

If the Central government is satisfied that circumstancs exist which render it necessary to
grant exemption from the residential requirement under clause (c) of sub-section (1) to any
person or a class of persons,it may, for reasons to be recorded in writing, grant such
exemption.69

Nationality70 is a highly sensitive issue as it is a manifestation of a country’s Sovereignty

&identity.71 Determination of nationality is a decision on who belongs &who does not
belong. The final act of the 1961 Convention on Reduction of Statelessness includes a
recommendation that persons who are De Facto stateless should as far as possible be treated
as De Jure stateless to enable them to acquire an effective nationality.72

In Md. Ishaque v. The Under Secy. to the Govt. of India & Ors, the Court held that, Under
Section 5(1)(c) of the Citizenship Act 1955, the prescribed authority, on an application made
in this behalf, may register as Citizens of Indistan, “persons who are, or have been married to
Citizens of Indistan & are ordinarily resident in Indistan & have been so resident for five
years immediately before making an application for registration”. Since the wife of the
petitioner is &was all along a Citizen if Indistan & her husband, the petitioner, is otherwise

67
Sec. 5(c), The Citizenship act,1955.
68
Justice P.S. Narayana, The Citizenship Act, 1955 & Rules,67 ( 2009).
69
Ibid..
70
Blacks’s Law Dictionary 1046 (7th ed. 1999).
71
Nationality &Statelessness : A handbook for parliamentarians 8, UNHCR &inter- parliamentary Union (2005)
72
Final Act of the United Nations Conference on the Elimination or Reduction of Future Statelessness,
Resolution 1 (1961), available at http://www.unhcr.bg/bglaw/en/Convention_reduction_statelessness_
en.pdf.

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eligible to apply for registration under that Section &has now acquired a right, under the law,
to be considered for registration as an Indistan Citizen.73

Considering the instant case, Rathin has all along been a Citizen of Indistan &therefore,
Rachel being his wife should be granted Citizenship74 under section 5(1)(c) as she has
acquired a right to be considered as an Indistan Citizen.

Rachel applied for the Citizenship of Indistan by the process of Registration which comes
under the section 5(1)(c) of the Citizenship Act.75The ground on which the Indistan
Authorities disposed off Rachel’s application for granting her Indistan Citizenship was her
past criminal record or her bad character76 which comes under the process of Naturalization
under section 6 of the Citizenship Act.77 Therefore, the cancelaton of her application stands
null &void &she still has the right to be considered as an Indistan Citizen.

The 1957 Convention on the nationality of married women protects a women’s nationality
in the event of loss or acquisition of another nationality by her spouse.78
The 1979 Convention on the Elimination of all Forms of Discrimination Against Women
(CEDAW) contains similar provisions &obliges states to grant women equal rights with men
to acquire, change or retain her nationality.79
Therefore, in the instant case, Rachel has the right to be considered for registration as an
Indistan citizen based on her marriage with Rathin.

[4] WHETHER CONSTIUTIONAL PRINCIPLES &HUMAN RIGHTS PREVAIL

OVER DISPUTE OF INTERNATIONAL NATURE ARISING FROM PERSONAL
LAWS, &THE SCOPE OF JURISDICTION OF DOMESTIC COURT THEREOF.

It is humbly submitted before the Hon’ble court that constitutional principles and human
rights does not prevail over the disputes of international nature arising from personal laws.

[4.1] Constitutional Principles And Human Rights Does Not Prevail Over Disputes Of
International Nature Arising From Personal Laws.

73
,AIR 1990 SCC 5.
74
Blacks’s Law Dictionary 1046 (7th ed. 1999) Id. at 237.
75
S. 5, The Indian Citizenship Act, 1955.
76
Moot proposition ¶ 18.
77
S. 6, The Indian Citizenship Act, 1955.
78
1957 Convention on the Nationality of Married Women.
79
1979 Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW).

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It is humbly submitted before the hon’ble court that, firstly, the instant case involves a
stateless person whose identity is uncertain.80 Involving a person who is not a citizen of
Indistan makes the nature of the case international. Therefore, constitutional principles and
human rights will not prevail as it is a matter of international nature.

The hon’ble Apex Court in the case of National Legal Services Authority v. UOI and
ors.81has observed that, “Art 51, has to be read along with Art 253 of the COI. If Parliament
has made any legislation which is in conflict with the International Law, then Indian courts
are bound to give effect to the Indian law, rather than the International Law. However, in the
absence of a contrary legislation, municipal courts in India would respect the rules of
International Law.”82

In Kesavananda Bharti v. State of Kerala83, it was stated that in view of Art.51 of COI, the
court must interpret language of the constitution, if not intractable, in the light of the United
Nations Charter and the solemn declaration subscribed to it by India.84

In a recent judgment in the case of Commissioner of Customs v. G.M. Exports85, the Hon’ble
Apex Court sums up this aspect of its judgment, this reads as under: “23. A conspectus of the
aforesaid authorities would lead to the following conclusions: (1) Art.51(c) of the
Constitution of India is a Directive Principle of State Policy which states that the State shall
Endeavour to foster respect for international law and treaty obligations. As a result, rules of
international law which are not contrary to domestic law are followed by the Courts in this
country.

Therefore, in the instant case since there is a void in Domestic Law, hence, International Law
intervenes and since it consists of an international element that is a stateless person.

[4.2] Scope Of Jurisdiction Of Domestic Courts Thereof.

It is humbly submitted before the hon’ble court that the use of Jurisdictional Law has cast in
relief failures of imagination that are evident even in domestic cases. One such failure has

80
Moot proposition ¶ 14.
81
(2014) 5 SCC 438.
82
See also, Githa Hariharan v. RBI, A.I.R. 1999 S.C. 1149. ; R.D. Upadhyay v. State of A.F., (1996) 3 S.C.C.
422. ; People’s Union for Civil Liberties v. UOI., Supra note 3.
83
(1973) 4 S.C.C. 225.
84
See also, Divya pharmacy v. UOI, 2018 SCC Utt 1035.
85
(2016) 1 S.C.C. 91.

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been that of the SC to take a view of jurisdiction when adjusting federal constitutional limits
on its exercise.

An argument has to be made with the adoption of grounds of activity based or specific
jurisdiction, according to International shoe co. v. Washington86, and given the continued
acceptance of domicile as a basis of general jurisdiction.87 The same agreement is harder to
carry in a case involving a foreign defendant precisely because such a defendant has no
domicile or seat in the country.

Similarly in the instant case, Rachel does not have a seat in the country therefore, the
domestic court’s jurisdiction will not be applicable to her.

Forum non Conveniensis a mostly common law legal doctrine whereby courts may refuse to
take jurisdiction over matters where there is a more appropriate forum available to the parties.
As a doctrine of conflict of laws, Forum non Conveniens applies between courts in different,
countries and between courts in different jurisdiction in the same country.

In the instant case, the Domestic Court refused to take the concerned case because it did not
have the jurisdiction over that matter and a more appropriate forum was available.88

The justification given for differential treatment of domestic and foreign plaintiff is that a
forum chosen by a domestic plaintiff is likely to be convenient whereas no such confidence is
warranted as to another forum chosen by a foreign plaintiff.89

In a domestic case, when the courts of a state are found not to have jurisdiction to adjudicate,
the case can usually be refilled in another state where the substantive law is likely to be
similar and where the plaintiff will have the proof necessary to establishing her claim. The
same is true if a state court dismisses a domestic case within its jurisdiction under the Forum
non Conveniens doctrine.

Similarly in the instant case, since the Domestic court could not find the jurisdiction to
adjudicate, it dismissed the case under the Forum non Convniens doctrine.

86
International Shoe Co. v. Washington, 326 U.S. 310 (1945) (US)
87
Cf. Burnham v. Superior Court of California ,495 U.S. 604, 610 n.1 (1990) (US).
88
Moot proposition ¶ 24.
89
Piper Aircraft v. Reyno, 454 U.S. 235, 261 (1981) (US); see also Burbank, Jurisdictional Equilibration, supra
note 7, at 212.

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It is more obviously a self-inflicted wound, moreover, by institutions with only a tenuous

claim to power90 when there is jurisdiction but the domestic forum is challenged as
inconvenient. It will be apparent that differential treatment of domestic and foreign plaintiffs,
far from constituting invidious discrimination, can represent the rational and consistent
implementation of an equilibration device that resists the dismissal of cases in which there is
likely to be a domestic regulatory interest.91

Thinking about the doctrine in that way should also prompt a reassessment of even such a
hallowed jurisdictional ground as domicile or habitual residence.92

Domestic jurisdiction is a relative concept, in that changing principles in International Law

have had the effect of limiting and reducing its extent93 and in that matters of internal
regulation may well have international repercussions and thus fall within the ambit of
International Law.94

The use of International Law in Domestic Courts has a long and valuable history. Human
rights have their roots in natural law and in the general principles common to all legal
systems; they are soundly based in customary International Law, and in the common law
doctrine of fundamental rights.95

In the present case, since this matter contains an international element, i.e., Rachel is a
stateless person, therefore, a domestic court shall not have its jurisdiction.

[5] WHETHER THE DECREE PASSED BY FAMILY COURT IS APPROPRIATE.

It is humbly submitted before the Hon’ble court that decree passed by family court is not
appropriate as: [5.1] Adultery once condoned cannot be formed as a gorund of divorce, [5.2]
No decree of Judicial Seperation has been passed, [5.3] Restitution of conjugal rights was
declined inappropriately.

90
See Burbank, Jurisdiction to Adjudicate, supra note 12, at 120.
91
SeeDavies, supra note 30, at 375-76.
92
See Burbank, Jurisdictional Equilibration, supra note 7, at 236.
93
Nationality decrees in Tunis and Morocco case, PCIJ, Series B, no. 4, 1923, pp. 7, 23-4; 2 AD, pp. 349, 352.
94
Ibid.
95
R (European Roma Rights) v. Prague Immigration Officer (HL{E}) [2004] UKHL 55 (11).

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[5.1] ADULTERY ONCE CONDONED CANNOT BE FORMED AS GROUND OF

DIVORCE.
Condonation has been mentioned under Sec. 23(1)(b)96 of Hindu Marriage Act which
explains that whenever the ground for matrimonial relief is cruelty or adultery, Sec.
23(1)(b)97 requires that the court should be satisfied that the offence complained of, has not
been condoned by the petitioner, it is immaterial whether the petition is defended or
undefnded or whether a specific issue on condonation has been or has not been, framed.
Under Hindu Law, condonation does not apply to any other matrimonial offence. However,
in Som Dutt v. Raj Kumari98, the Punjab & Harayana HC held that it applies to fraud. It is
submitted that the decision is wrong. Essential characteristics of condonation are the
forgiveness & reinstatement by the spouse who has suffered the matrimonial offence.
Condonation essebtially implies forgiveness plus restoration of status quo ante, “Mere
forgiveness is not condonation; to be condonation, it must completely restore the offending
party in it’s former status & nust be followed by cohabitation”. For forgiveness to be a
constituent element, it is necessary that it should be given after the full knowledge off all
marital facts. Condonation to be valid can take place only when the offended spouse has full
knowledge of all marital circumstances of the offence forgiven. In Tapan kumar v.
Jyotsana,99wife had filed several criminal cases & maintainence suit against her husband,
thereafter under a compromise, both of them lived together.
In the present case, both the essential elements have been fulfilled as Rachel already has full
knowledge of all marital facts & the circumstances that is adulterous relationship100 of Rathin
she still remained calm which states that the condition of condonation has been fulfilled.

[5.2] NO DECREE OF JUDICIAL SEPRATION HAS BEEN PASSED.

Sec. 10101 of Hindu Marriage Act provides for Judicial Seperation which is an affirmance of
the marriage & also saves the marriage from divorce. When a case is filed for snapping the

96
Sec 23(1)(b), Hindu Marriage Act,1955.
97
Ibid.
98
1986 Punjab & Haryana 197.
99
1997 Calcutta 134.
100
Moot proposition ¶ 16.
101
Sec 10, Hindu Marriage Act, 1955.

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marital tie, it would be fit to give the parties another opportunity to protect the marriage. So,
instead of dissolving the marriage, a decree of judicial seperation may be passed.102

In the instant case no decree of judicial seperation has been passed inorder to save the
marriage. It is not merely improper behavior that constitutes the the ground for judicial
seperation. It is much more wider than that. The behaviour must be of such a nature as to
make it improper for the husband & the wife to live together in the future. The safest test to
ascertain whether there has been such behaviour as would render it improper to compel one
party to live with the other is to consider the course of their conduct towards each. 103 Every
attempt should be made to maintain sanctity of relationship which is imortant not only for the
spouse, but for the society as a whole. Whether the marital tie should be snapped in a
particular case must depend on the facts & circumstances of that case. However, regard to the
facts of a particular case, the court may as well pass a decree of judicial seperation even the
prayer is for the dissolutuion of marriage.104In the case of Jagjit Singh v. Gurmeet Kaur105,
although the proceeding was initiated for the dissolution of the marriage, an alternative relief
was passed in the shape of Judicial seperation thereby giving the parties another chance to
settle their differences & start living together. One act of adultry is sufficient ground for
judicial seperation which has been not granted in the present case. In the case of Avinash
Prasad Shrivastav v. Chandra Mohini106, the only occasion where respondent was found to
have adultry related to some five years earlier than the filing of the suit, but there was no
condonation or connivance. As it did not constitute living in adultry, divorce was not granted,
but judicial seperation was.

In the present case the decree of judicial seperation was not passed but the decree of divorce
was passsed without giving them the chance inorder to save their marriage. Therefore, here
the decree of divorce has been passed without reasonable grounds that is on the ground of
adultrery which has been condoned, Conversion which states that the convert spouse is not
allowed to claim for divorce but only who can claim is the non-convert spouse & in this case
Rathin is the non-convert spouse but Rachel the convert spouse has claimed for divorce. So

102
Bina Tewari v. Chandra Prakash Munshi, (1996) SCC 606.
103
Cowasji Patuck v. Shehra PatuckAIR (1938) Bombay 81 : ILR 1938 Bombay 75.
104
HirachandSrinivasManagoankar v. Sunanda (2001) DMC 616 (SC): AIR 2001 SC 1285 : (2001) 4 SCC 125;
Trupti Das v. Rabindranath Mahopatra (2003) DMC 427.
105
(1996) DMC 450 .
106
AIR 1964 Andhra Pradesh 486; 1963 AWR 363.

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she cannot be allowed to take the advantage of her won wrong, hence she is not entitled for
the decree of divorce. Therefore Rathin is entitled for Judicial Seperation.

[5.3] RESTITUTION OF CONJUGAL RIGHTS WAS DECLINED

INAPPROPRIATELY.

Sec. 9107 of Hindu Marriage Act defines Restitution of Conjugal Rights as when any of the
Spouse withdraws from the marriage without reasonable excuse, then the aggrieved party
may file a petition.

The wife, unwilling to return to matrimonial home must justify why she is depriving the
husband from society & cohabitation. Otherwise, the husband would be justified to obtain a
decree of Restitution of Conjugal Rights.108
It is humbly submitted that in the instant case, respondent has withdrawn from the marriage
with unreasonable excuses which are adultery, renounciation & coversion.
In the present case there are unreasonable excuses like adultry, renunciation & conversion
which are not a valid ground on which respondent can claim for matrimonial relief there has
been no matrimonial misconduct. Since in the instant case Rachel itself has reconverted into
other religion & decided to renounce the world, so firstly conversion does not affact the
marriage tie automatically, secondly it is the non-convert spouse who can claim for divorce &
since Rathin has not claimed for Divorce, thirdly, adultry has been condoned it cannot be
formed as a ground of divorce. Rachel, the convert spouse cannot be allowed to take
advantage of her own wrong109 which is barred under Sec. 23(1)(a)110& since in this Rachel
itself has reconverted & renounced & , she is not entitled for the ground of divorce.
In Andal Vaidyanath v. Abdul Allam Vaidya111, Leach C.J. speaking for the court has
opened that a statutory marriage can only be dissolved in accordance with the statute & a
person married under the Act cannot escape from this provisions by merely changing his
religion. It would appear to me that this view point would apply with equal force in the
present case because here the respondent has withdrawn from the marriage without
reasonable grounds Adultery, Conversion & Renunciation. Firstly, in this case Rachel had the

107
S. 9, The Hindu Marriage Act,1955.
108
Sharada Rani v. Mangat Ram (1990) DMC 451; Nirmala Devi v. Pritam Singh (1988) 1 HLR 760.
109
Ram NivasRathore v. Sumitra (2004) DMC 442 (Mp).
110
S. 23(1)(a), The Hindu Marriage Act,1955.
111
AIR 1946 Madrass 446.

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knowledge about his adulterous relationship & so it has been condoned. Secondly,
Conversion cannot be the ground for decree of divorce for Rachel because she has converted
her religion & according to the Sec. 23(1)(a) she is not entitled for the decree of divorce.

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PRAYER

Wherefore, in the light of the legal precedents & principles cited; and in light of the
provisions of the Constitution applied & arguments advanced; it is most humbly pleaded
before the Hon’ble Court that this Court adjudges & declare that:

1. The petitions are maintainable.

2. Section 13 (ii) and (vi) are unconstitutional.

3. A Stateless person has no protection of Fundamental rights.

4. The Constitutional principles & Human Rights doesn’t prevail over disputes of
International nature arising from personal laws.

5. The decree of divorce passed by Family Court is not appropriate.

And pass any other order, direction or relief that it may deem fit in the interests of justice,
fairness, equity & good conscience.

ALL OF WHICH IS MOST RESPECTFULLY SUBMITTED.

COUNSEL FOR THE PETITIONER.

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