A.

Whether the marriage between the petitioner and

respondent valid under the HMA, 1955 or not?
It is most humbly submitted before this Honble court that the marriage
which took place between the parties in 1992 is valid under the
provisions of HMA, 1955 and thus the petition for restitution of conjugal
rights under section 9 is maintainable before this Honble court. This
argument is based on the following contentions.

1. That both the parties are covered under the definition of

term Hindus provided under this act.

It is most respectfully submitted that both the parties are Hindu as

defined under Section 21 of the HMA, 1955.
That it is submitted before this Honble court that the petitioner is a
Hindu under the provisions of the HMA, 1955. The petitioner is fully
covered under the definition of Hindu as provided under section 2 of
the HMA, 1955. It is imperative to mention in this regard that the
factual matrix of the case shows that both the parties married each
1

Application of Act.
(1) This Act applies
(a) to any person who is a Hindu by religion in any of its forms or developments, including a
Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,
(b) to any person who is a Buddhist, Jaina or Sikh by religion, and
(c) to any other person domiciled in the territories to which this Act extends who is not a
Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not
have been governed by the Hindu law or by any custom or usage as part of that law in
respect of any of the matters dealt with herein if this Act had not been passed.
Explanation. The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as
the case may be:
(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas
or Sikhs by religion;
(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or
Sikh by religion and who is brought up as a member of the tribe, community, group or family
to which such parent belongs or belonged; and
(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.
(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall
apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article
366 of the Constitution unless the Central Government, by notification in the Official
Gazette, otherwise directs.
(3) The expression Hindu in any portion of this Act shall be construed as if it included a
person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act
applies by virtue of the provisions contained in this section. State Amendment Pondicherry:
In section 2, insert the following sub-section: (2A) Notwithstanding anything contained in
sub-section (1), nothing contained in this Act shall apply to the Renoncants of the Union
territory of Pondicherry . [ Vide Regn. 7 of 1963, sec. 2 and Sch. (w.e.f. 1-10-1963).]

other on 14th March, 1992 by exchange of garlands and in the

furtherance of it, they married according to all the Hindu rites and
ceremonies. This fact alone brings to the conclusion that Suzanna was
practicing Hinduism and not any other religion, as she never insisted
upon the fact that her marriage should take place according to
Christian rituals and in church. The petitioner and the respondent
visited temples to marry for two consecutive times which points out
towards the fact that Suzanna did not practice Christianity.
That in the instant case, it is necessary to bring to the light of court
that the respondent has not approached the court with clean hands. It
is submitted that in the absence of any specific fact in the fact sheet
regarding the religion of petitioner an adverse inference can be drawn.
It would he highly illegal and a total disregard to the provision of law if
the court relies on this conjecture and surmises. In the facts of the
present case, the respondent submitted an affidavit as the proof
regarding the religion of the petitioner. It is pertinent to mention in
here that the court on a number of occasions has held that affidavits
are not a part of admissible evidence under the Indian evidence act,
1872. The affidavit submitted by the respondent is not admissible in
evidence as under Section 32 of The Indian Evidence Act, 1872,
affidavits are not included in the definition of evidence, and it has
been excluded expressly under Section 13 of Indian Evidence Act. The
same has been held in Parkash Rai vs. J.N. Dhar4 where the court
2

According to Section 3 : Evidence means and includes

(1) all statements which the Court permits or requires to be made before it by witnesses, in
relation to matters of fact under inquiry, such statements are called oral evidence;
(2) all documents including electronic records produced for the inspection of the Court, such
documents are called documentary evidence.
3
1. Short title, extent and commencement.This Act may be called the Indian Evidence Act,
1872. It extends to the whole of India 1[except the State of Jammu and Kashmir] and applies
to all judicial proceedings in or before any Court, including Courts-martial, other than Courtsmartial convened under the Army Act (44 & 45 Vict., c. 58) the Naval Discipline Act (29 & 30
Vict., c. 109) or the Indian Navy (Discipline) Act, 1934 (34 of 1934) or the Air Force Act (7
Geo. 5, c. 51) but not to affidavits presented to any Court or Officer, nor to
proceedings before an arbitrator; and it shall come into force on the first day of September,
1872.
4
AIR 1977 Delhi 73

has observed that What 'evidence' means and includes is defined in

Section 3 of the Indian Evidence Act. Affidavits are not included in its
definition. On the contrary, affidavits have been expressly excluded by
virtue, of Section I of the Indian Evidence Act. Therefore, affidavits
cannot be taken in evidence under any provision of the statute
Thus this affidavit cannot be relied upon by the court, as it is not legal
and conclusive in nature. Thus the agreement of the respondent is
totally baseless and of no relevance in this regard

2. That the marriage solemnized between the parties

is in accordance to the essentials of a valid

marriage provided under HMA, 1955.
It is humbly submitted that the marriage between the petitioner and
the respondent is a valid marriage under the Hindu Marriage Act, 1955
and fulfills all the requirements of Section 5 and Section 7 of the said
Act.
That the section 5 of HMA provides as under:
Conditions for a Hindu marriage. -A marriage may be
solemnized between any two Hindus, if the following conditions are
fulfilled, namely:
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party
(a) is incapable of giving a valid consent to it in consequence of
unsoundness of mind; or

(b) though capable of giving a valid consent, has been suffering

from mental disorder of

such a kind or to such an extent as to

be unfit for marriage and the procreation of children; or

(c) has been subject to recurrent attacks of insanity
(iii) the bridegroom has completed the age of twenty-one years and
the bride, the age of eighteen years at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship
unless the custom or usage governing each of them permits of a
marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or
usage governing each of them permits of a marriage between the two;
That it is most humbly submitted that this marriage which took place
between the parties is a valid marriage under HMA. Under the
provision of section 5 of HMA this contention is based on the following
arguments.
2.1. THAT THE PARTIES HAD NO LIVING SPOUSE
It is humbly submitted that neither party had a spouse living at the
time of marriage.
The contention of the respondent that the petitioner was married to
one George holds no ground and is without any proof. The respondent
submitted a birth certificate indicating that the petitioner gave birth to
a male child 3 years prior to 14 th March 1992 bearing father name as
George.
It is humbly submitted that the birth certificate does not induce that
the parties mentioned in the certificate are married as the same was
held by the Orissa High Court in Smt. Dhara Dei v. Prafulla 5 that the
entry in the birth register does not conclude a proof of a valid marriage
5

1984 II OLR 621

between the parties. It was further reiterated by the Bombay High

Court in Snehalata Kailash Ingale and Ors. Vs.

Kailash

Rajaramji Ingale6, Birth certificate of a person does not prove a

marriage between the persons named as father and mother in the
birth certificate and birth could be attributed to illicit relationship
between persons named in the birth certificate.
It is further submitted that the respondent has failed to give any
reasonable and cogent evidence that a valid marriage had been
performed between the petitioner and George.
Further the respondents marriage with his maternal uncles daughter
is null and void as it is hit by Section 5(v) read with Section 3(f)7 of
the Hindu Marriage Act being a Sapinda Marriage.
2.2 THAT NEITHER PARTY WAS INCAPABLE OF GIVING A VALID
CONSENT
It is humbly submitted that there was free consent on the part of the
respondent. Both the parties entered into wedlock with their free
consent as per section 5(ii) of the Hindu Marriage Act, 1955.
It is alleged by the respondent that the petitioner took advantage of his
state of drunkenness and took him to Tirumala and he did not give a
free consent. However his conduct was totally opposite to this
contention as he was cohabiting with the petitioner without any protest
for nearly 6 months from October 1992 to March 1993 and only
deserted her on 23rd March, 1993 due to the pressure of his mother.
6

MANU/MH/1110/2007
Section 5 (v) the parties are not sapindas of each other, unless the custom or usage
governing each of them permits of a marriage between the two;
Section 3 (f) (i) Sapinda relationship with reference to any person extends as far as the third
generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the
line of ascent through the father, the line being traced upwards in each case from the
person concerned, who is to be counted as the first generation;
(ii) two persons are said to be sapindas of each other if one is a lineal ascendant of the other
within the limits of sapinda relationship, or if they have a common lineal ascendant who is
within the limits of sapinda relationship with reference to each of them;
7

Further the petitioner did not file for annulment of the marriage under
section 12 of the HMA.
It is further submitted that even if the contention of the respondent is
to be believed, the marriage would only be voidable under section 12
of HMA and not a void one under section 11 of the said act. Till the
decree of annulment is obtained, the marriage is a valid and subsisting
marriage till that date.
That the Section 11 of HMA states as under:
Void marriages. Any marriage

solemnized

after

the

commencement of this Act shall be null and void and may, on a

petition presented by either party thereto against the other
party, be so declared by a decree of nullity if it contravenes any
one of the conditions specified in clauses (i) , (iv) and (v) of
section 5.
That the Section 12 of HMA states as under:
Voidable marriages.
(1) Any marriage solemnised, whether before or after the
commencement of this Act, shall be voidable and may be
annulled by a decree of nullity on any of the following grounds,
namely:
(a) .
(b) that the marriage is in contravention of the condition
specified in clause (ii) of section 5; or
(c)
(d) ..
(2) ..
The same has been explained by Allahabad high Court in Smt. Kavita
Gupta Vs. Subhas Kumar Gupta 8, Section 11 provides for void
marriages and Section 12 provides for voidable marriages. It lays down
that any marriage solemnized before or after commencement of the
Act shall be void ab initio and may be annulled by a decree on any of
8

2006(10)ADJ324

the grounds mentioned. In Section 12 of the Act. Unless the marriage

is held to be void by a competent court of law the relationship of
husband and wife would continue
2.3

THAT

THE

PETITIONER

HAD

COMPLETE

18

YEARS

AND

RRESPONDENT HAD COMPLETED 21 YEARS OF AGE AT THE TIME OF

MARRIAGE
In the ambit of the present case, on a bare reading of the facts at hand
it can be reasonably presumed that the petitioner had completed the
age of 18 years and respondent had completed the age of 21 years at
the time of marriage.
2.4 THAT THE PARTIES ARE NOT WITHIN THE DEGREES OF PROHIBITED
RELATIONSHIP
It can be reasonably presumed from the factual matrix that the parties
were not within the prohibited degree of relationship.
2.5 THAT THE PARTIES ARE NOT SAPINDAS OF EACH OTHER
In the ambit of the present case, on a bare reading of the facts at hand
it can be reasonably presumed that the parties are not Sapindas of
each other.

3. WHETHER ALL CEREMONIES REQUIRED BY SECTION 7 HAS

BEEN PERFORMED?
It is humbly submitted that the requisite ceremonies as per Section 7
had been performed first on 14 th March 1992 and again on 3rd October
1992.
That the Section 7 of HMA states as under:
Ceremonies for a Hindu marriage.

(1) A Hindu marriage may be solemnized in accordance with the

customary rites and ceremonies of either party thereto.
(2) Where such rites and ceremonies include the saptpadi (that
is, the taking of seven steps by the bridegroom and the bride
jointly before the sacred fire), the marriage becomes complete
and binding when the seventh step is taken.
On 14th March 1992, the parties married by an exchange of garlands
which constitutes a valid marriage. The Bombay High Court in Subash
Popatlal Shah v. Smt. Lata Subhash Shah 9 has observed as follows
advanced an argument that there is nothing on the record that no
such rite and ceremony and/or custom was prevalent between the
parties in this case. Such an argument cannot be accepted. The
evidence of the respondent here is quite clear that she and the
appellant went to Vajreshwari before a priest who recited mantras and
applied tilak to her forehead and made both of them exchange
garlands upon which they were declared husband and wife and the
marriage was consummated. It cannot be said that this marriage
between the parties was not legal and valid. There is nothing in the
evidence of either the husband or the wife that saptapadi was a must
according to the religious rites; ceremonies and customs prevalent
between them. Therefore, even if saptapadi was not one of the items
of the marriage ceremony undertaken by the parties before us, we are
of the opinion that the marriage between the appellant and the
respondent cannot be held to be illegal and invalid. In fact, when some
sort of marriage ceremony was undergone by and between the Parties,
there is always a presumption of validity of marriage unless the
presumption is rebutted by quite cogent and satisfactory evidence.

MANU/MH/006/1994

A presumption under Section 11410 of The Indian Evidence Act arises

in favour of a valid marriage upon continued cohabitation of the parties
and it must be refuted by satisfactory evidence in this regard.
The respondent has failed to refute the said marriage by any clear
cogent and convincing evidence.
Further on 3rd October 1992 the marriage was solemnized between the
parties at Tirumala according to all the requisite rituals and ceremonies
as required under Section 7. The defendant himself has admitted this
fact. He further cohabited with the petitioner for about 6 months from
the date of solemnization until March 1993 at their matrimonial home
with the mother of the respondent. The respondent until the filing of
the present petition never registered any protest regarding the said
marriage being under a state of drunkenness or made any attempt to
annul the same on this ground.

B. WHETHE PETITION FILED BY THE PETITIONER UNDER

SECTION 9 OF HMA,1955 IS MAINTAINABLE OR NOT?
That it is most humbly submitted before this Honble curt that the petition is
maintainable before this Honble court under section 9 of HMA, 1955.

That the section 9 of HMA states as under:

Restitution of conjugal rights. When either the husband or
the wife has, without reasonable excuse, withdrawn from the
society of the other, the aggrieved party may apply, by petition
to the district court, for restitution of conjugal rights and the
court, on being satisfied of the truth of the statements made in
10

Section 114 - Court may presume existence of certain facts. The Court may presume the
existence of any fact which it thinks likely to have happened, regard being had to the
common course of natural events, human conduct and public and private business, in their
relation to the facts of the particular case.

such petition and that there is no legal ground why the

application should not be granted, may decree restitution of
conjugal rights accordingly.
Under the provision of section 9 of HMA this contention is based on the
following arguments:

1. THAT ALL THE ESENTIALS OF A VALID MARRIAGE HAS

BEEN FULFILLED BY THE PARTIES.

It is humbly submitted that all the essentials required for a valid

marriage under the HMA, 1955 have been contented in the above
issue and thus the marriage between the parties is a valid marriage
under HMA, 1955.

2. THAT THE RESPONDENT HAS WITHDRAWN WITHOUT ANY

REASONABLE EXCUSE.
It is submitted that the respondent has withdrawn from the society of
the petitioner without any reasonable cause.
Explanation. Where a question arises whether there has been
reasonable excuse for withdrawal from the society, the burden of
proving reasonable excuse shall be on the person who has
withdrawn from the society.
The respondent has not submitted any evidence in this regard so the
petitioner is entitled to restitution of conjugal rights. The position was
explained by the Calcutta High Court in Rakesh Kumar Das v. Kakali
Mazumdar11, In the absence of evidence to prove that there was
reasonable excuse to withdraw from the society of her husband there
was no obligation on the part of the petitioner to disprove that fact.
This is not also a question of onus. This on the contrary is a question of
burden statutorily fixed upon the person who has withdrawn from the
11

AIR 2016(NOC)4(Cal)

society. When the wife who had withdrawn from the society of her
husband did not discharge her burden, the only conclusion, which can
be arrived at, is that the respondent had withdrawn from the society of
her husband voluntarily and without any reasonable excuse.