IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPEALEATE SIDE

IN THE MATTER OF:

Civil Writ Petition No. 12/2018
(Filed under Article 21 & 227 of the Constitution of India)

Mrs. Gulab )
Age:28 Years )
R/o: Andheri, Mumbai )
Occupation: Homemaker ) …..(Petitioner
Versus

Mr. Ramnarayan )
Age: 30 Years )
R/o: Andheri, Mumbai )
Occupation: Service ) …..(Respondent

Most Respectfully Submitted before the Hon’ble Chief Justice and Other Judges of High
Court of Judicature at Bombay

Written submission on behalf of the Respondent

Sd/-
Counsel for the Respondent
 TABLE OF CONTENTS

Sr. No TOPIC NAME PAGE NO.

1 Cover Page 01

2 Table of Contents 02

3 Index of Abbreviations 03

3 Index of Authorities 04

5 Statement of Jurisdiction 05

6 Statement of Facts 06

7 Statement of Issues 07

8 Summary of Arguments 08

9 Arguments Advanced 09-10

10 Prayer 11

INDEX OF ABBREVATIONS
Abbreviations Full Form

Cl. Civil
Cr. Criminal
Appl. Appeal
w.p. Writ Petition
Rev. Revision
Mr. Mister
Vs. Versus
Govt. Government
SCC Supreme Court Case
& At the rate
AIR All India reporter
FIR First Information report
Hon’ble Honorable
OR‟s Others
CICL children in conflict with the law
CRC Committee on the Rights of the Child
Pg. Page
IHRL International human rights law
UOI Union of India
Anr. Another
Mrs. Misses
Ccr. Current criminal report
Ed. Edition
ILR Indian law reporter
l.j. Law journal
Re. Reference
Sd/- Signed

INDEX OF AUTHORITIES
Statues referred:
1. The Indian Penal Code, 1860
2. Indian Evidence Act, 1872
3. Code of Civil Procedure, 1908
4. Article 21 in The Constitution of India 1949
5. Section 9 in The Hindu Marriage Act, 1955
6. Section 19 in The Hindu Marriage Act, 1955
7. Article 14 in The Constitution of India 1949
8. The Hindu Marriage Act, 1955

Case law:
1. T. Sareetha vs T. Venkata Subbaiah on 1 July, 1983
2. Ajay Jawaharlal Kakaria vs Sandhya Ajay Kakaria on 21 August, 1992
3. Surjit Singh Thind vs Kanwaljit Kaur
4. Harvinder Kaur v Harminder Singh, AIR 1984 Delhi 66
5. Lillu v.State of Haryana, AIR 2013 SC 1784
6. Akhtar v. State of U.P., 2014 SCC Online All 8922
7. State of Gujarat v. Rameshchandra Ramabhai Panchal, 2020 SCC Online Guj 114

Website:
1. www.clpr.org.in
2. www. Lawinsider.com
3. www.indianlawportal.com
4. www.supremecourtcases.com
5. www.indiankanoon.com
6. www.manupatra.com
 STATEMENT OF JURISDICTION

This Hon’ble High Court of Bombay has the jurisdiction to try, entertain and dispose of the
present case by virtue of Article 21 of the Constitution of India, 1950.
The present memorandum sets forth the facts, contentions and arguments.

226. Power of High Courts to issue certain writs:

(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout
the territories in relation to which it exercises jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories directions, orders or
writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto
and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III
and for any other purpose

(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any
Government, authority or person may also be exercised by any High Court exercising
jurisdiction in relation to the territories within which the cause of action, wholly or in part,
arises for the exercise of such power, notwithstanding that the seat of such Government or
authority or the residence of such person is not within those territories

(3) Where any party against whom an interim order, whether by way of injunction or stay or
in any other manner, is made on, or in any proceedings relating to, a petition under clause
( 1 ), without
(a) Furnishing to such party copies of such petition and all documents in support of the plea
for such interim order; and
(b) Giving such party an opportunity of being heard, makes an application to the High Court
for the vacation of such order and furnishes a copy of such application to the party in whose
favor such order has been made or the counsel of such party, the High Court shall dispose of
the application within a period of two weeks from the date on which it is received or from the
date on which the copy of such application is so furnished, whichever is later, or where the
High Court is closed on the last day of that period, before the expiry of the next day
afterwards on which the High Court is open; and if the application is not so disposed of, the
interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid
next day, stand vacated

(4) The power conferred on a High Court by this article shall not be in derogation of the
power conferred on the Supreme court by clause ( 2 ) of Article 32
The Respondent humbly submits this memorandum in response to the appeal filed before this
Hon’ble Court. The Appeal invokes its jurisdiction under Article 21 of the Constitution of
India, 1950.
 STATEMENT OF FACTS

1. Marriage of Gulab was solemnized with Ramnarayan on 01/10/2017. It was an

Arranged Marriage.

2. After marriage Gulab stayed at her matrimonial house with Ramnarayan for a few
days and left for her parental home.

3. In November 2017 Gulab filed a Marriage Petition No. 125/2017 before Family
Court, Bandra under Section 12 of Hindu Marriage Act, 1955 for seeking a decree of
annulment of marriage.

4. The Only ground raised in the said petition that Ramnarayan was an impotent and due
to his impotency the said marriage has not been consummated.

5. The Respondent filed his written statement on 2nd December 2017 opposing the
petition. The Respondent Ramnarayan denied the allegation and contended that he
was not an impotent.

6. During pendency of the said proceedings the Respondent Ramnarayan filed an

Application dated 20th December 2017 for medical examination of the Petitioner to
prove that she was not a virgin.

7. The Petitioner opposed the application; however, the family court allowed the
application by an Order dated 25th December 2017 and directed the Petitioner to
undergo medical examination.

8. The Trial Court was of the opinion that all steps can be taken for finding out the truth.

9. The Petitioner Gulab challenged the said Order of Family Court, before High Court,
Bombay and preferred a Civil Writ Petition No. 12/2018 under article 227 of the
Constitution of India.

10. The Petitioner contended that the impugned Order has interfered with her Right to
Privacy under Article 21 of the Constitution of India.

11. The husband-Respondent appeared before Hon’ble High Court and by his reply
opposed Petition on the ground that it was the only method of proving whether the
marriage was consummated or not.

12. The Petition is posted for arguments on 20th January 2018.

 STATEMENT OF ISSUES

1. The Writ Petition under Section 12 of Hindu Marriage Act, 1955 for seeking a
decree of annulment of marriage.

2. Whether allegations made by the petitioner that respondent Mr. Ramnarayan

was impotent.

3. Whether Right to privacy under Article 21 of the Constitution of India was

violated?
 SUMMARY OF ARGUMENT

1. The Writ Petition under Section 12 of Hindu Marriage Act, 1955 for seeking a
decree of annulment of marriage.

It is humbly submitted to this Hon’ble Court that in the given factual matrix, An
annulment may be granted when a marriage is automatically void under the law for
public policy reasons or voidable by one party when certain requisite elements of the
marriage contract were not present at the time of the marriage.

2. Whether allegations made by the petitioner that respondent Mr. Ramnarayan

was impotent.

It is humbly submitted that the original petition made a false allegation that
respondent being impotent as Mrs. Gulab doesn’t wanted to live with respondent and
within few days after marriage she left for her parental home.

3. Whether Right to privacy under Article 21 of the Constitution of India was

violated?

Fundamental rights are basic rights that every human being is entitled to, and such
rights should be present with every citizen of the country along with appropriate
remedies. Article 21 of the Constitution of India states that “No person shall be
deprived of his life or personal liberty except according to the procedure established
by law”. The scope of Article 21 has been widened over the years to interpret that the
term ‘life’ includes all aspects of life that make a person’s life meaningful, complete
as well as worth living.
 ARGUMENTS ADVANCED

1. The Writ Petition under Section 12 of Hindu Marriage Act, 1955 for seeking a
decree of annulment of marriage.

A marriage is automatically void and is automatically annulled when it is prohibited

by law. Section 11 of Hindu Marriage Act, 1955 deals with:

Nullity of marriage and divorce- 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), Section 5
mentioned below.

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) 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:

An annulment may be granted when a marriage is automatically void under the law
for public policy reasons or voidable by one party when certain requisite elements of
the marriage contract were not present at the time of the marriage.

So, annulment shall not be granted on the mere false allegation that respondent is
impotent as it does not fulfil the requirement of Section 5 of the Hindu Marriage Act
1955.

2. Whether allegations made by the petitioner that respondent Mr. Ramnarayan

was impotent.

The Supreme Court of India stated that impotence can be both physical and mental
and a party is impotent if his or her mental or physical condition makes
consummation of marriage a practical impossibility.

It is to be noted that soon after marriage Mrs. Gulab (Petitioner) left her husband
home and stayed at her parental home.
 It clearly states that she doesn’t wanted to live her husband and that’s why she moved
a false allegation of impotency, one more point to be noted here is that no conclusive
evidence and proof of potency was presented before the court that respondent Mr.
Ramnarayan was impotent, no medical evidence was presented from her side it was
just mere an unreasonable allegation.

Impotency must be proved and there must be facts from which impotency that are
physical unfitness for consummation, may be inferred.

Such a false allegation of declaring respondent as impotent is troubling him with

mental pressure & trauma and it is the easiest way to send respondent under
depression.

Further it will lead to defaming the respondent with such a false allegation.

3. Whether Right to privacy under Article 21 of the Constitution of India was

violated?

The matter may be considered from another angle. In order to arrive at the conclusion
for annulment on the ground of impotency normally without there being medical
examination, it would be difficult to arrive at a conclusion as to whether the allegation
made by his spouse (petitioner) against the respondent seeking annulment is correct or
not. In order to substantiate such allegation, the respondent insist on medical
examination. If petitioner avoids such medical examination on the ground that it
violates his/her right to privacy or for a matter, right to personal liberty as enshrined
under Article 21 of the Constitution of India, then it may in most of such cases
become impossible to arrive at a conclusion.

Therefore, when there is no right to privacy specifically conferred by Article 21 of the
Constitution of India and with the extensive interpretation of the phrase "personal
liberty" this right has been read into Article 21, it cannot be treated as absolute right.
What is emphasized is that some limitations on this right have to be imposed and
particularly where two competing interests clash.

Hence, the trial court’s opinion that all steps can be taken for finding out the truth,
was justified and it was to only way to bring light of truth in this case and help in
deciding whether the marriage was consummated or not.
 Prayer
In the light of the arguments advanced, cases and authorities cited above, the
petitioners humbly request the Hon’ble high court of Bombay, to admit the writ
petition, and in so doing, adjudge and declare that:

1. We find no reason to that impugned order has interfered with her Right to
privacy under Article 21 of the Constitution of India

2. To dismiss the annulment petition and grant relief for restitution of conjugal
rights with the petitioner.

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

Sd/-
(Counsel on behalf of the Respondents)