R 1650315- AMITH LM- 10 BA

LLB C

SCHOOL OF LAW, CHRIST (DEEMED TO BE UNIVERSITY)

10TH SEM. CLINICAL COURSE MOOT COURT (BAL1074)

IN THE HON’BLE HIGH COURT OF MADRAS

AT CHENNAI

APPEAL NO. _____ / 2021

(FILED UNDER SECTION 19 OF THE FAMILY COURTS ACT, 1984)

MR. MADHAVAN…………………………………………………. APPELLANT

V.

MRS. SANGEETHA……………………………………………... RESPONDENT

SUBMISSIONS BEFORE THE HON’BLE CHIEF JUSTICE

AND HIS COMPANION JUSTICES

OF THE HON’BLE HIGH COURT OF MADRAS

MEMORIAL FOR RESPONDENT

 CLINICAL COURSE MOOT-2 1650315 10-BA LLB-C

TABLE OF CONTENTS

LIST OF ABBREVIATIONS. ................................................................................................. 3

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

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

STATEMENT OF FACTS ...................................................................................................... 9

STATEMENT OF ISSUES ................................................................................................... 10

SUMMARY OF ARGUMENTS .......................................................................................... 11

ARGUMENTS ADVANCED ................................................................................................ 12

1. WHETHER ANY KNOWLEDGE TO THAT EFFECT, WITH RELATION TO PREVIOUS MARRIAGE, WOULD
LEAD TO UNDOING THE PREVIOUS MARRIAGE OF THE RESPONDENT? 12
A. Subsistence of the First Marriage of the Respondent 12
B. Divorce Proceedings vis-à-vis Panchayat Adjudication 13
C. Deemed Knowledge vis-à-vis Panchayat Order 15
2. WHETHER THE PRESUMPTION OF KNOWLEDGE OF THE PREVIOUS MARRIAGE WOULD BE PERVERSE?
15
A. General Presumption of Law vis-à-vis the First Marriage 15
B. Presumption of Validity of Second Marriage & its Operation 17
3. WHETHER THE APPELLANT-HUSBAND CAN CLAIM CUSTODY OF THE CHILD IN THE EVENT OF THE
MARRIAGE BEING VOID? 17
A. Validity of the Marriage of Appellant & Respondent 18
B. Claims of Custody by Husband vide Welfare 18
C. Age of the Girl-Child vide the Second Marriage 19
4. WHETHER RESPONDENT-WIFE CLAIM THE RIGHT OF RESIDENCE IN HER IN-LAWS PROPERTY?
A. Domestic Relations vide the Instant Marriage 20
B. Shared Household & Family Property 21

PRAYER FOR RELIEF ........................................................................................................ 23

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LIST OF ABBREVIATIONS

& And

@ Alias

§ Section

¶ Page
AIR All India Reporter

All. Allahabad High Court

AP Andhra Pradesh

b/w Between

Bom. Bombay High Court

CTC Current Tamil Nadu Cases

Del. Delhi

Dr. Doctor

DV Act, 2005 Protection of Women from Domestic Violence

Act, 2005
Dy. Director Deputy Director

Ed. Edition
GWA, 1890 Guardians & Wards Act, 1890

HC High Court
HMA, 1955 Hindu Marriage Act, 1955

HMGA, 1956 Hindu Minority & Guardianship Act, 1956

Hon’ble Honourable
i.e., That is

ILR Indian Law Reporter

Km. Kumari

Kr. Kumar

LIC Life Insurance Corporation

LR IA Lord’s Indian Appeals
Mad. Madras High Court

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MP Madhya Pradesh

MP L. J Madhya Pradesh Law Journal

Mys. Mysore
NCT National Capital Territory

No. Number

OIC Records Officer-In-Charge Records

R/w Read with

RCR Regular Civil Revision

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reporter

Smt. Shrimati

Std. Standard
Suppl. Supplementary

TN Tamil Nadu

UDHR Universal Declaration of Human Rights

UP Uttar Pradesh

v. Versus
Vol. Volume

w.r.t. With respect to

Yrs. Years

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INDEX OF AUTHORITIES

CASES REFERRED:
1. ABC v. State (NCT of Delhi), (2015) 10 SCC 1.
2. Aishwarya Atul Pusalkar v. Maharashtra Housing & Area Development Authority, 2020
SCC Online SC 408
3. Ambika Prasad Thakur v. Ram Ekbal Rai, AIR 1966 SC 605.
4. Anagamanjari Chowdhrani v. Tripura Soondari Chowdhrani, (1886-1887) LR 14 IA 101.
5. Badri Prasad v. Dy. Director of Consolidation. (1978) 3 SCC 527.;
6. Baljit Singh v. Prabhjit Kaur and Ors., 2019 (4) RCR (Civil) 984.
7. Balwinder Singh v. Gurpal Kaur, AIR 1985 Del. 14.
8. Bhaurao Shankar Lokhande v. State of Maharasthra, (1965) 2 SCR 837.
9. Challamma v. Tilaga, (2009) 9 SCC 299.
10. Chand Diwan (Smt.) v. Jawahar Lal, (1992) 3 SCC 317.
11. Chanmuniya v. Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141.
12. Chowdegowda v. C Nagaraju, (1996) 5 SCC 623.
13. Dalagobinda Paricha v. Nimai Charan Mishra, AIR 1959 SC 914.
14. Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42.
15. Gayatri Bajaj v. Jiten Bhalla, (2012) 12 SCC 471.
16. Gullipilli Sowria Raj v. Bandaru Pavani, (2009) 1 SCC 714.
17. Harinarayan v. State of M.P., (2005) 1 MP L.J. 196
18. Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 165.
19. J Selvan v. N Punidha, 2017 SCC Online Mad. 636.
20. Kuppuswamy Gounder v. Kannammal, 2001 SCC Online Mad. 448.
21. Lahari Sakhamuri v. Sobhan Kodali, (2019) 7 SCC 311.
22. LIC of India v. Anuradha, (2004) 10 SCC 131.
23. Mahendra Nath Yadav v. Sheela Devi, (2010) 9 SCC 484.
24. Mazhar Ali v. Budh Singh, 1884 SCC Online All. 131.
25. MM Malhotra v. Union of India, (2005) 8 SCC 351.
26. Mohd. Sharif v. Bande Ali, ILR (1912) 34 All. 36
27. N Jayalakshmi Ammal v. R Gopala Pathar, 1995 Supp. (1) SCC 27.
28. Nalathanggal v. Nainan Ambalam, 1959 SCC Online Mad. 124.
29. Neelam Gupta v. Mahipal Sharan Gupta, 2020 SCC Online SC 422
30. Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413.

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31. Nithya Anand Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454.
32. Pilla Appala Narsamma v. OIC Records, Mad. Regiment, Willington, 2011 SCC Online AP
224.
33. Rajkumar Rampal Pandey v. Sarita Rajkumar Pandey, (2009) 1 Mah. L.J 466.
34. Rajnesh v Neha, 2020 SCC Online SC 903
35. Rambhai v. Ramesh Kumar, 1996 MP L.J 91.
36. Ramesh Chandra Dagga v. Rameshwari Dagga, (2005) 2 SCC 33.
37. Ramrati Kuer v. Dwarka Prasad Singh, (1967) 1 SCR 153.
38. Reema Aggarwal v. Anupam, (2004) 3 SCC 199.
39. Riju Prasad Sarma v. State of Assam, (2015) 9 SCC 461.
40. Roxann Sharma v. Arun Sharma, (2015) 8 SCC 318.
41. Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479.
42. S.P.S. Balasubramanyam v. Suruttayan, (1994) 1 SCC 460.
43. S.R. Batra v. Taruna Batra, (2007) 3 SCC 169
44. Sahadeo v. State of UP, (2010) 3 SCC 705.
45. Saraswathi v. Thirupathi, 2014 SCC Online Mad. 8392.
46. Saraswathibai Shripad Vad v. Shripad Vasanji Vad, 1940 SCC Online Bom. 77.
47. Satish Chander Ahuja v. Sneha Ahuja, (2021) 1 SCC 414.
48. Satya v. Teja Singh, (1975) 1 SCC 120.
49. Sheoli Hati v. Somnath Das, (2019) 7 SCC 490
50. Shivlingaiah v. Chowdamma, AIR 1956 Mys. 17.
51. Smriti Pahariya v. Sanjay Pahariya, (2009) 13 SCC 388.
52. Sobha Hymavathi Devi v. Setti Gangadhar Swami, (2005) 2 SCC 244.
53. Subramani v. M. Chandralekha, (2005) 9 SCC 407.
54. Suhas Manohar Pande v. Manohar Shamrao Pande, AIR 1971 Bom. 183.
55. Surajmal Stella Kujur (Dr) v. Durga Charan Hansdah, (2001) 3 SCC 13
56. Tejaswini Gaud v. Shekhar Jagadish Prasad Tewari, (2019) 7 SCC 42.
57. Vadivel v. Umamaheshwari, (2014) 4 CTC 450 (Mad.)
58. Vandhana v. T. Srikanth, (2007) 5 CTC 679.
59. Veerappa Chettiar v. S. Michael, AIR 1963 SC 933.
60. Vivek Singh v. Romani Singh, (2017) 3 SCC 231.
61. Yamanaji H Jadhav v. Nirmala, (2002) 2 SCC 637.

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BOOKS, COMMENTARIES & OTHER ACADEMIC MATERIAL:

 I.P. MASSEY, ADMINISTRATIVE LAW, (9th ed. Eastern Book Company 2017)
 BM GANDHI, FAMILY LAW, Vol. I (1st ed. 2012)
 VEPA P SARATHI, LAW OF EVIDENCE (7th ed. 2018)
 SA DESAI, MULLA ON PRINCIPLES OF HINDU LAW, Vol I-II (12th ed., 2015)
 BRYAN A GARNER, BLACK’S LAW DICTIONARY (10th ed. 2014)
 JOHN JANE SMITH, WHARTON’S LAW LEXICON, 491 (2015)
 Shubhodip Chakraborty, Law on Domestic Violence [Protection of Women from
Domestic Violence Act, 2005, 2020 SCC Online Blog LME 2

LAWS AND STATUTES:

 Family Courts Act, 1984

 Indian Majority Act, 1875
 Hindu Marriage Act, 1955
 Hindu Minority & Guardianship Act, 1956
 Guardians & Wards Act, 1890
 Indian Evidence Act, 1872
 Protection of Women from Domestic Violence Act, 2005

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STATEMENT OF JURISDICTION

In the instant case, the jurisdiction of this Hon’ble court arises from Section 19 of the Family
Courts Act, 1984, which has reproduced as hereinunder-

19. Appeal. — (1) Save as provided in sub-section (2) and notwithstanding anything contained in
the Code of Civil Procedure, 1908 (5 of 1908) or in the Code or Criminal Procedure, 1973 (2 of
1974), or in any other law, an appeal shall lie from every judgement or order, not being an
interlocutory order, of a Family Court to the High Court both on facts and on law.

(2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the
parties 4[or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2
of 1974):

Provided that nothing in this sub-section shall apply to any appeal pending before a High Court
or any order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before
the commencement of the Family Courts (Amendment) Act, 1991].

(3) Every appeal under this section shall be preferred within a period of thirty days from the date
of the judgement or order of a Family Court.

(4) The High Court may, of its own motion or otherwise, call for an examine the record of any
proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter
IX of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to
the correctness, legality or propriety of the order, not being an interlocutory order, and as to the
regularity of such proceeding.]

(5) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, order or
decree of a Family Court.

(6) An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more
Judges.

The Respondent concedes to the jurisdiction of this Hon’ble Court.

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STATEMENT OF FACTS

FIRST MARRIAGE OF THE RESPONDENT: The Respondent, a resident of Chinnakonur,

Mettur Taluk, Salem, got married to one Mr. Sekar, aged 21, at the age of 17.5 yrs, in the year
2007, as per the Hindu marriages & rituals. From the said wedlock, the Respondent & Mr.
Sekar begot a child by the name, Kr. Kalicharan in the year 2008. However, post the birth of
the child, there appeared to be marital rifts between the Respondent & Mr. Sekar, who had in
fact indulged in adulterous conduct with another woman by the name Mia. Upon having
knowledge of the said acts of the first husband of the Respondent, the Respondent made
objections to the same, which resultantly led to the Respondent being subjected to an
insurmountable amount of cruelty at the hands of the First Husband of the Respondent & even
thrown out of her house, with subsequent taking of custody of the child from the wedlock. To
this, it stated that the Respondent went to her parent’s house for a period of 6 months, in the
hope that there would be a degree of repentance by Mr. Sekar. Much to her dismay, the
Respondent found that, upon her return to her first marital home, the first husband of the
Respondent with the said Ms. Mia in a marital knot & also a conversion of the first husband to
Islam, thereby recognizing himself as a Muslim by the name, Osama. To this, the Respondent
had approached the Village Panchayat to resolve the matter of Sekar @ Osama & his marriage
with that of the Respondent. However, in a series of events, the first husband of the Respondent
pronounced his intention of divorce by pronouncing the term ‘Talaq’ over three time, thereby
seeking to part ways in the marital relation with the Respondent.

THE MARRIAGE OF THE APPELLANT & RESPONDENT: In the year 2015, the
Appellant to the instant case, was appointed to the school in which the Respondent was
employed. A relationship had enveloped between both the Appellant & Respondent, from
which both the Appellant & Respondent decided to get married. The marriage therein was
solemnized on 31.12.2016, with the consensus of both the parents of the couple. The said
wedlock gave rise to the Appellant & Respondent begetting a child by the name Km. Veni, on
19.02.2018. At this juncture, the Appellant came to know of the previous marriage of the
Respondent, thereby subjecting her to verbal abuse & further taking of the child, Veni.

FAMILY COURT PROCEEEDINGS & APPEAL: As a result, the Appellant to the instant
case, filed a divorce petition before the Hon’ble Family Court, Salem under the aegis of the
HMA, 1955 to which the Hon’ble Family Court dismissed the said application, holding in
favour of the Respondent. Hence, the instant appeal is presented before this Hon’ble Court.

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STATEMENT OF ISSUES

ISSUE 1

WHETHER ANY KNOWLEDGE TO THAT EFFECT, WITH RELATION TO PREVIOUS MARRIAGE, WOULD LEAD
TO UNDOING THE PREVIOUS MARRIAGE OF THE RESPONDENT?

ISSUE 2

WHETHER THE PRESUMPTION OF KNOWLEDGE OF THE PREVIOUS MARRIAGE WOULD BE PERVERSE?

ISSUE 3

WHETHER THE APPELLANT-HUSBAND CAN CLAIM CUSTODY OF THE CHILD IN THE EVENT OF THE
MARRIAGE BEING VOID?

ISSUE 4

WHETHER RESPONDENT-WIFE CLAIM THE RIGHT OF RESIDENCE IN HER IN-LAWS PROPERTY?

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SUMMARY OF ARGUMENTS

ISSUE 1

The Respondent contends that at the outset, the Respondent’s first marriage is no longer tenable in law
as marital relationship, owing to the said first husband being outside known degrees of contact for well
beyond statutory period, thereby raising the presumption of death under Section 108, Evidence Act.
Further so, it is further contended that the decree of the Panchayat stands to hold validity akin to that
of village custom, which is recognized under Section, 29(2) of the HMA, 1955. As a consequence, it
is contended that the Appellant ought to have had a deemed knowledge as to the said judgement which
acts in-rem qua the villagers.

ISSUE 2

The Respondent contends that there exists a presumption of knowledge as to the existence of a given
marriage only in the event there being continuous which in the instant case operates conversely to hold
a presumption of divorce therein, to the first marriage of the Respondent. As a consequence, it is
contended that the Respondent’s second marriage stands to be validated owing to the presumption
present therein, much the same way as ordered by the Family Court, Salem.

ISSUE 3

The Respondent contends at the outset, that with reference to the custody of the child, that the said
custody of Km. Veni, is entirely contingent on the notion of the welfare of the child. With this, it is
further contended that the age of the child in the instant case, is one which falls below the requisite
condition of 5 yrs., for there to be any possibility of the Appellant-Husband to claim valid custody of
the child in the instant case.

ISSUE 4

The Respondent contends that DV Act, 2005 mandates in clear & specific terms, the existence of a
welfaristic notion, through which the court is to take a broader interpretation of the term ‘shared
household’, with the intent of protecting the rights of women, such as the Respondent, as under the
terms stipulated to that effect under Section 17 & 19 of the DV Act, 2005.

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ARGUMENTS ADVANCED

ISSUE 1
WHETHER ANY KNOWLEDGE TO THAT EFFECT, WITH RELATION TO PREVIOUS MARRIAGE, WOULD
LEAD TO UNDOING THE EFFECT OF THE PREVIOUS MARRIAGE OF THE RESPONDENT?

1. The Respondent contends that the knowledge in the instant case, with reference to the marriage
subsisting between the Respondent & her first husband was in the nature of conceding to the terms
of marriage between the Respondent & Appellant & the same is on account of- [A] The first
marriage being voidable at the behest of the Respondent being a minor, [B] In arguendo, even if
the marriage is to be validated, the same has been decreed in a Panchayat sitting in the year 2008,
[C] That the knowledge in the instant case, of the first marriage of the Respondent is such that it
stands to be akin to that of constructive notice.
A. Subsistence of the First Marriage of the Respondent
2. It is contended that the term ‘marriage’ intends to connote the existence of a legal union between
individuals, who would further identify themselves as spouses to a nuptial obligation. 1 Further a
marriage is a communion by which there is consummation of such unions between parties
intending to come together within a marital sphere, by means of certain formal celebrations or
ceremonies2
3. From this, it is contended with relation to the instant case, that the marriage of the Respondent with
her First Husband, Sekar @ Osama was a marriage which was consummated on the basis of various
Hindu rites & rituals which were followed & prevalent in the State of TN. 3 However, at this
juncture, it is contended that, in a turn of events, there appeared to be a second marriage
consummated by the said First Husband of the Respondent, to one Ms. Mia in the year 2009.
Resultantly, it is seen here that the First Husband of the Respondent & his purported second wife,
had left their avocation in the Chinnakonur village, Mettur Taluk in the year 2009, with no further
information as to where they would be or how they could be contacted.
4. As a result, it is contended before this Hon’ble Court, that the period of time b/w that of the last
known avocations of the First Husband & his purported second wife & the period nearing the

1
BRYAN A GARNER, BLACK’S LAW DICTIONARY, 1117 (10th ed. 2014)
2
JOHN JANE SMITH, WHARTON’S LAW LEXICON, 491 (2015); also refer, Veerappa Chettiar v. S. Michael, AIR
1963 SC 933.
3
Refer generally, Bhaurao Shankar Lokhande v. State of Maharasthra, (1965) 2 SCR 837.

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marriage of the Respondent with that of the Appellant on 31.12.2016, is a period well beyond 7
yrs. of time4, which warrants the presumption of the law as laid down under Section 108 of the
Indian Evidence Act, 18725, which mandates the operation of a presumable std. by which a person
who stands to be outside or beyond reasonable means of contact by those usually in contact with
the said person6 for a period of 7 yrs continuously, must be deemed to be a person who is presumed
dead therein for processes & purposes of law.7 In furtherance of the aforesaid supposition, it is
contended before this Hon’ble Court that the presumption as envisaged previously is one which
even applies prudentially to the aspects of family8 & its related notions of marriage 9, succession,
divorce & so on.
5. As a consequence, it is contended that the First marriage b/w the Respondent & her First Husband
is in itself vitiated,10 owing therein to the presumption of death being operation. 11 To that effect, it
is contended that the mandatory requirements12 provided under Section 5 of the HMA 1955, which
require a monogamous marriage 13, which further exhumes the aspect of there being no living
spouse to that effect, at the time of consummation of the second marriage.14
B. Divorce Proceedings vis-à-vis Panchayat Adjudication
6. It is contended that even if there is to be acceptance of the said marriage as against that of the
aforementioned averment placed, that in arguendo, the First marriage b/w that of the Respondent
& her First Husband, Mr. Sekar @ Osama, had been submitted before the consideration of the
Panchayat in the Chinnakonur village, Mettur Taluk, Salem. Here, it is averred that the proceedings
to that effect based on averments placed by both sides, in addition to a turn of events, led to the
Panchayat adjudicating in favor of the Respondent’s first Husband. To this effect, it is contended

4
Ramrati Kuer v. Dwarka Prasad Singh, (1967) 1 SCR 153.
5
§108, Indian Evidence Act, 1872, Act No. 1 of 1872, Acts of Parliament, 1872.
6
LIC of India v. Anuradha, (2004) 10 SCC 131.
7
N Jayalakshmi Ammal v. R Gopala Pathar, 1995 Supp. (1) SCC 27.
8
Mazhar Ali v. Budh Singh, 1884 SCC Online All. 131.
9
Rambhai v. Ramesh Kumar, 1996 MP L.J 91.
10
Pilla Appala Narsamma v. OIC Records, Mad. Regiment, Willington, 2011 SCC Online AP 224.
11
Refer generally, Mohd. Sharif v. Bande Ali, ILR (1912) 34 All. 36
12
Gullipilli Sowria Raj v. Bandaru Pavani, (2009) 1 SCC 714.
13
Ramesh Chandra Dagga v. Rameshwari Dagga, (2005) 2 SCC 33.
14
Refer, MM Malhotra v. Union of India, (2005) 8 SCC 351.

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to the instant case, that the parties to the first marriage & its consequent breakdown, had in fact
mutually chosen the village Panchayat as a means for settlement of disputes b/w them & had further
chosen to not approach a family court or such other mechanism engrained within a catena of laws
related to family disputes.15 From this, it is furthered that it was the manifested choice present
therein, with regard to the intent of both the Respondent & her First Husband in making no further
approach to the Family Courts or such other courts of law, apart from the Panchayats, thereby
manifesting trust in the process therein. 16
7. Additionally, it is contended that the proceedings of the Panchayat in the instant case are such that
they form a part of the custom prevalent in the Chinnakonur village, 17 on account of there having
been multiple adjudications being made by the Panchayat here in the village presented before this
Hon’ble Court’s consideration, for well-over a millennium18, wherein there have been several
marital engagements adjudicated by 5 elders of the village seated in the Panchayat Sabha, who
have made such orders as to effect merely both the parties calling their marriage into question.
8. As a result, it is contended that the said Panchayat Ruling with regard to the first marriage of the
Respondent as aforementioned qualifies as a valid adjudication19 on account of there being a
protection offered therein to such a custom as under Section 29(2) of the HMA, 195520, which
qualifies all such customs & practices, which on proof of the existence of the same, 21 hold an
overriding effect as against all forlorn provisions present thereof within the HMA, 1955 & its
resultant scheme.22 Thus, the said adjudication while being within the bounds of the village would
not require a separate decree or interference as to its validity of the custom at large 23by the court

15
Nalathanggal v. Nainan Ambalam, 1959 SCC Online Mad. 124.
16
Mahendra Nath Yadav v. Sheela Devi, (2010) 9 SCC 484., ¶72.; also refer, Balwinder Singh v. Gurpal Kaur,
AIR 1985 Del. 14.
17
Subramani v. M. Chandralekha, (2005) 9 SCC 407.
18
R Manimuth, The Panchayat System under the Cholas Studies from Inscriptions, available at
https://iiste.org/Journals/index.php/HRL/article/download/19218/19395 (last accessed on 2 March 2021)
19
Harinarayan v. State of M.P., (2005) 1 MP L.J. 196
20
§29(2), Hindu Marriage Act, Act No. 25 of 1955, Acts of Parliament, 1955 (India)
21
Kuppuswamy Gounder v. Kannammal, 2001 SCC Online Mad. 448.
22
Surajmal Stella Kujur (Dr) v. Durga Charan Hansdah, (2001) 3 SCC 13
23
Riju Prasad Sarma v. State of Assam, (2015) 9 SCC 461.

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of law to become enforceable, thereby making an order in nature of separation in relation to the
first marriage b/w the Respondent & her First Husband. 24
C. Deemed Knowledge vis-à-vis Panchayat Order
9. As a consequence of the order of the Panchayat with reference to the separation of the Respondent
from her first marriage, it is contended that there exists an element by which the said adjudication
carried out by the entity, in consonance with the consent of the Respondent & First Husband, is
such that operates as a judgement or form of adjudication in-rem, under Section 41 of the Indian
Evidence Act, 187225 with concerns placed to the entire world 26 with respect to the legal character
of the marriage & consequent changes to such a character therein. 27
10. From this, it is contended that the Appellant stands to have deemed knowledge, as to the existence
of the various system of circumstances, 28 with regard to both the femme sole & unmarried man,
laid down therein, as regards the first marriage of the Respondent with her first husband 29, which
in resultantly is to be deemed as conclusive proof as to the status of marriage therein. 30

ISSUE 2

WHETHER THE PRESUMPTION OF KNOWLEDGE OF THE PREVIOUS MARRIAGE WOULD BE PERVERSE?

11. The Respondent contends that knowledge as such, with respect to the existence of previous
marriage & its terms therein, does not vitiate the marriage which is subsisting at the current period
of time. The Respondent to this effect, holds the same in averment, on account of- [A] The general
set of presumptions to this effect, with reference to the state of things or nature therein, [B] The
presumption being present to that effect, with reference to the marriage in the instant case b/w
Appellant & Respondent being valid.
A. General Presumption of Law vis-à-vis the First Marriage

24
Yamanaji H Jadhav v. Nirmala, (2002) 2 SCC 637.
25
§41, Indian Evidence Act, 1872, Act No. 1 of 1872, Acts of Parliament, 1872.
26
Suhas Manohar Pande v. Manohar Shamrao Pande, AIR 1971 Bom. 183.
27
Chand Diwan (Smt.) v. Jawahar Lal, (1992) 3 SCC 317.
28
Saraswathi v. Thirupathi, 2014 SCC Online Mad. 8392.
29
Baljit Singh v. Prabhjit Kaur and Ors., 2019 (4) RCR (Civil) 984.
30
Satya v. Teja Singh, (1975) 1 SCC 120.

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12. It is contended before this Hon’ble Court that the under Section 114 of the Indian Evidence Act,
187231, there may be a presumption raised which fields the aspects of there being a presumption
as to the existence of a certain system or state of things, 32 within a period shorter than the period
within which the such things would stand out of existence, 33which the court may choose to believe
as likely to have happened, with regard to the common course of natural events, human conduct
and public and private business, with regard to the facts and circumstances of the case.
13. In furtherance of this, it is contended in relation to the instant case, that there can be a scenario for
causing a presumption of marriage being in subsistence only in the event of there being constant,
continuous & openly known cohabitation for greater number of yrs. with each other in the form of
spouses to the said marriage, 34 which to the instant case stands to be in clear abeyance owing to
the first husband of the Respondent having by no means, a manner of contact or information as to
current residence, for period b/w the date of the decree of the elders of the Panchayat to the date of
marriage of the Respondent & the Appellant & even further from the said period. As a result, the
presumption placed generally under the aforesaid section stands to have a redacted value, owing
to the abandonment so contemplated by the first husband of the Respondent 35, thereby raising a
contrary presumption of divorce having taken place with relation to the marriage of the Respondent
& her first husband, irrespective of there being a child begotten from the said wedlock.36
14. A further corollary to the same comes with respect to that of the imputation of character & opinions
thereof as to the relationship present therein, which is envisaged under Section(s) 32(5) 37 & 5038
of the Indian Evidence Act, 1872 from which it comes to the contended that the existence or mere
possibility of another marriage persisting b/w the Respondent & her first husband is to be proved
beyond a degree of preponderance by the Appellant, from which it is contended that the Appellant
fails to prove beyond the set std.39 Additionally, it is contended to this effect, that there is to be

31
§114, Indian Evidence Act, 1872, Act No. 1 of 1872, Acts of Parliament, 1872.
32
Ambika Prasad Thakur v. Ram Ekbal Rai, AIR 1966 SC 605.
33
Anagamanjari Chowdhrani v. Tripura Soondari Chowdhrani, (1886-1887) LR 14 IA 101.
34
Badri Prasad v. Dy. Director of Consolidation and Ors. (1978) 3 SCC 527.; also refer, Smriti Pahariya v.
Sanjay Pahariya, (2009) 13 SCC 388.
35
Sobha Hymavathi Devi v. Setti Gangadhar Swami, (2005) 2 SCC 244.
36
Reema Aggarwal v. Anupam, (2004) 3 SCC 199.
37
§32(5), Indian Evidence Act, 1872, Act No. 1 of 1872, Acts of Parliament, 1872.
38
§50, Indian Evidence Act, 1872, Act No. 1 of 1872, Acts of Parliament, 1872.
39
Dalagobinda Paricha v. Nimai Charan Mishra, AIR 1959 SC 914.

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material proof as to the concubinity of the Respondent with reference to the first marriage, which
at this juncture stands to be a non-existent legal relationship owing to the scenario of there being
positive contact established for the statutory presumption to operate, which gets further taken also
with regard to the decree of the elders of the Panchayat with relation to the marriage of the
Respondent with her first husband.
15. As a result, it is contended before this Hon’ble Court that the view opined by the Family Court,
Salem is correct, with there being no possible claim by the Appellant-Husband as to the
presumption of a subsisting marriage b/w the Respondent & her first husband.40
B. Presumption of Validity of Second Marriage & its Operation
16. With the aforesaid averments, it is contended to the instant marriage which has been sought for
consideration before this Hon’ble Court, that there now exists, in the absence of any cogent
circumstances being presented therein, a presumption as to the validity of the second marriage, i.e.;
the marriage b/w the Respondent & the Appellant, owing to the period, 2016-2021, in which the
marriage stands to have been consummated41 with a long spell of continuous marital obligations
being present therein,42 which raises a strong presumption to be in favor of the marriage, rather
than against it.43

ISSUE 3

WHETHER THE APPELLANT-HUSBAND CAN CLAIM CUSTODY OF THE CHILD IN THE EVENT OF THE
MARRIAGE BEING VOID?

17. The Respondent contends that the custody of the child, Km. Veni, is to vest with the Respondent.
The Respondent contends so, on account of- [A] The marriage between the Appellant &
Respondent, being in the nature of being valid in the material terms of the law, [B] The welfare of
the girl child, Veni, being better understood by the Respondent-Mother in the instant case & [C]
That the child begotten from the second marriage, Km. Veni is below 5 yrs. & thereby having
automatic vesting of custody with regard to the child begotten therein.
A. Validity of the Marriage of Appellant & Respondent

40
Refer, Chowdegowda v. C Nagaraju, (1996) 5 SCC 623.
41
Refer generally, Challamma v. Tilaga, (2009) 9 SCC 299.
42
S.P.S. Balasubramanyam v. Suruttayan, (1994) 1 SCC 460.
43
Chanmuniya v. Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141.

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18. It is contended at the outset that the Respondent’s first marriage, which concerns the instant case,
is one which is no longer in existence, with no marital obligations cast thereof, on the Respondent.
As had been iterated in the previously before this Hon’ble Court, it is contended before this Hon’ble
Court that the First Husband of the Respondent, was for a period lasting from 2009-2015 & beyond
even the said yrs. to this date, missing with no information therein as to his current avocation, thus
permitting an application of the presumption of law, with regard to the First Husband of the
Respondent being dead. 44 As a consequence, it is contended that the second marriage, which is
solemnized b/w the Respondent & Appellant is valid, as under the conditions laid down under the
HMA to that effect. Even so, it is further contended in arguendo before this Hon’ble Court, that
the Panchayat proceedings with regard to the first marriage are such that they hold validity & have
the force of law, 45 with separative propositions leading to the divorce being decreed by the said
Panchayat elders in Chinnakonur village, Mettur Taluk.46
B. Claims of Custody by Husband vide Welfare
19. With the aforesaid averments concerning the validity of the First marriage, it is contended in
arguendo before this Hon’ble Court on the point of law, that in the event of there being a
declaration of a marriage as void, it goes beyond the vires of claim for custody which maybe vested
with a father or as seen in the instant case, the Appellant. To this, it is contended that the term
‘custody’ to the current context holds a meaning which connotes a narrower concept in relation to
the physical possession of the child so begotten, with inhering interests in causing the upbringing,
day-to-day care & control of the minor therein. 47
20. With this, it is contended before this Hon’ble Court that the notion of custody, as provided under
the Section 17 of the GWA, 1890,48 in any given case, is contingent on the aspects of ‘welfare of
the child’ that is begotten from a wedlock or a relationship of incidental nature.49 Further, it is
contended that the said notion of welfare, does not transcend to mean the welfare or prestige of the

44
Sahadeo v. State of UP, (2010) 3 SCC 705.
45
Supra, note 12.
46
Refer generally, Shivlingaiah v. Chowdamma, AIR 1956 Mys. 17.
47
BRYAN A GARNER, BLACK’S LAW DICTIONARY, 799 (10th ed. 2014)
48
§17, Guardians & Wards Act, 1890, Act No. 8 of 1890, Acts of Parliament, 1890 (India).
49
Sheoli Hati v. Somnath Das, (2019) 7 SCC 490; also refer, Nithya Anand Raghavan v. State (NCT of Delhi),
(2017) 8 SCC 454.

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parents; i.e., the Mother & Father of the child so begotten & is a concept by which there is a strict
need to examine the needs of the child as paramount.50
21. In furtherance of this, it is contended that there does not exist a greater right or competence of
either of the parents that would require adjudication while deciding their entitlement to custody,51
with the court making only referential constructions concerning the aspects of the welfare present
therein.52 This concept, is one which involves the examination of certain factors such as that of the
environment, ability to bring about the right form of upbringing, whether ethical, social or
otherwise53, in addition to several factors such as economic well-being, 54 contentment, health of
the child.55
22. Making strides with reference to the instant case, it is thus contended before this Hon’ble Court
that the welfare of the child further stands to have bearing with reference to specific gender &
special needs of the child, Km. Veni, who happens to be the girl-child begotten in the said second
marriage of the Respondent.56 Thus, this Hon’ble Court in its capacity has the competence akin to
a parens partrae jurisdiction in determining the said child’s welfare. 57
C. Age of the Girl-Child vide the Second Marriage
23. In the instant case, it is put before this Hon’ble Court, that the child, Km. Veni was born on
19.02.2018 as a result of the wedlock b/w the Appellant & Respondent. To this, it is contended
that the date of birth & consequent no. of days with respect to the birth of the child are to be taken
into consideration. On examination of the same, it is put before this Hon’ble Court that the age of
the said child in the instant case is 3 yrs., which falls squarely below the requirement of the law for
the child being 5 yrs. of age w.r.t. custody therein. 58
24. As a consequence, it is contended that as per Section 6(a) of the HMGA, 195659 that the custody
of the child in the instant case ought to be given to the Respondent-Mother, owing to the factor of

50
Saraswathibai Shripad Vad v. Shripad Vasanji Vad, 1940 SCC Online Bom. 77.
51
Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413.
52
Gayatri Bajaj v. Jiten Bhalla, (2012) 12 SCC 471.
53
Vivek Singh v. Romani Singh, (2017) 3 SCC 231.
54
Lahari Sakhamuri v. Sobhan Kodali, (2019) 7 SCC 311.
55
Tejaswini Gaud v. Shekhar Jagadish Prasad Tewari, (2019) 7 SCC 42.
56
J Selvan v. N Punidha, 2017 SCC Online Mad. 636.
57
Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42.
58
Vadivel v. Umamaheshwari, (2014) 4 CTC 450 (Mad.)
59
§6(a), Hindu Minority & Guardianship Act, Act No. 32 of 1956, Acts of Parliament, 1956 (India)

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the said child being of a tender age & beyond understanding basic precepts. Thus, in the absence
of cogent reasons to that effect within the pleadings placed before this Hon’ble Court by the
Appellant, it is contended that there is a preclusion of the Appellant-Father in holding custody of
the child in the instant case,60 which may be further extended to the Respondent-Mother, even post
the completion of the 5 yrs.61 Thus, as a consequence it is put for this Hon’ble Court to exercise its
power in a manner by which the Respondent-Mother in the instant case gains custody of the said
child.62

ISSUE 4

WHETHER RESPONDENT-WIFE CLAIM THE RIGHT OF RESIDENCE IN HER IN-LAWS PROPERTY?

25. It is contended before this Hon’ble Court that the Respondent-Wife in the instant case has a
legitimate claim on the right of residence, which she may claim at the current avocation of the
Respondent & Appellant, on account of- [A] Existence of domestic relations within the realm of a
common household calling the concern of the right therein, [B] Material consequence of valid or
even that of an invalid marriage into the notion of “shared household”.
A. Domestic Relations vide the Instant Marriage
26. At the outset, it is contended that it is imperative to understand the concept of a “shared household”
which as couched in the language of the DV Act, 200563 connotes to mean a household where the
person aggrieved, such the Respondent in the instant case, lives, either singly, or along with the
man, against whom the complaint is filed. It may also imply a household where a woman has lived
in a domestic relationship but has been thrown out. This may include all kinds of situations whether
the household is owned by the respondent or it is rented accommodation. It also includes a house
either owned jointly by the aggrieved person and the respondent or both may have jointly or singly,
any rights, titles or interests.64

60
Roxann Sharma v. Arun Sharma, (2015) 8 SCC 318.
61
Id, ¶14-24; also refer, ABC v. State (NCT of Delhi), (2015) 10 SCC 1.
62
Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479.
63
§2(s), Protection of Women from Domestic Violence Act, 2005, Act No. 43 of 2005, Acts of Parliament, 2005
(India)
64
Shubhodip Chakraborty, Law on Domestic Violence [Protection of Women from Domestic Violence Act, 2005,
2020 SCC Online Blog LME 2

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27. To this effect, it is contended that the said notion presented under the DV Act, 2005 thereby
mandates the existence of a twofold requirement in addition to the already existent requirement of
there being a subsisting marriage,65 which are66-
A. that the relationship with opposite party is “domestic relationship”
B. that the house in respect of which she seeks to enforce the right is household of shared measure
by both Husband & Wife

, both of which stand to be met within the context of the instant case, with there even being a child,
Km. Veni, having been begotten from the said marriage.

B. Shared Household & Family Property

28. With the aforementioned conditions being met under the considerations of the instant case, it is
contended before this Hon’ble Court that the said notion, forms a part of the core objectives of the
DV Act, 2005 which in essence, is one which is couched with a certain degree of a welfarist
approach of the State in determining the rights of women who are subjected domestic harassment
& abuse & thereby taking steps to that effect which allow for protective proclivities. 67
29. In furtherance of this, it is contended that the older, dogmatic view set out by the Hon’ble SC in
S.R. Batra v. Taruna Batra68, which mandated that a House which exclusively belonged to mother-
in-law of the woman wherein she only lived with her husband for some time in the past after their
marriage is not construed as a “shared household” within the meaning of Section 2(s), is a view
which is not tenable in law.
30. Thus, it is contended that there is to be a liberal construction of clauses of protection, under Section
2(s) r/w 1769 & 1970 of the DV Act, 2005, which extolls all forms of narrow applications 71 which
are set out in the law, to make the law, in a sense, effective to the core objectives as laid down in

65
Rajkumar Rampal Pandey v. Sarita Rajkumar Pandey, (2009) 1 Mah. L.J 466.
66
Vandhana v. T. Srikanth, (2007) 5 CTC 679.
67
Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 165.
68
S.R. Batra v. Taruna Batra, (2007) 3 SCC 169.
69
§17, Protection of Women from Domestic Violence Act, 2005, Act No. 43 of 2005, Acts of Parliament, 2005
(India).
70
§19, Protection of Women from Domestic Violence Act, 2005, Act No. 43 of 2005, Acts of Parliament, 2005
(India).
71
Neelam Gupta v. Mahipal Sharan Gupta, 2020 SCC Online SC 422.

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the Preamble of the said Act.72 Resultantly so, it is contended before this Hon’ble Court, that the
correct view taken in order to ensure a proper espousal of a remedy therein to a woman such as the
Respondent in the instant case, would be the view taken by the Hon’ble SC in Satish Chander
Ahuja v. Sneha Ahuja73, through which the Hon’ble SC had held in a liberal sense that, the
application of said notion of protection to a woman who has been subject to domestic violence
would extend to the greatest sense to even shared household of the family and also the ancestral
property of the mother-in-law.74 As a result, it is contended that it would be immaterial for there to
be any form of rejection merely on the pretext of ancestral or joint-family ownerships being
averred, thereby making a clear case for a remedy under the Section 19 of the said DV Act, 2005.75

72
Aishwarya Atul Pusalkar v. Maharashtra Housing & Area Development Authority, 2020 SCC Online SC 408.
73
Satish Chander Ahuja v. Sneha Ahuja, (2021) 1 SCC 414.
74
Id, ¶57-98
75
Rajnesh v Neha, 2020 SCC Online SC 903.

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PRAYER

WHEREFORE in the light of the issues raised, arguments advanced and authorities cited, it is
humbly prayed that this Hon’ble Court may be pleased to issue, hold, adjudge & declare that:

1. Dismiss the appeal before this Hon’ble Court sans merit.

2. Declare the Second marriage of the Respondent with the Appellant to be valid under
Section 5 of the HMA.
3. Declare that the Respondent has a right over the shared household, in which she & the
Appellant are in residence & issue further steps in protection u/s 17 & 19 of the DV Act,
2005.

And pass any other order as the Hon’ble Court may deem fit in terms of equity, justice and
good conscience. And for this act of kindness the Petitioners shall as duty bound ever humbly
pray. All of which is respectfully submitted.

Sd/---

Counsel for the Respondent

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