TEAM NO.

12

IN THE HONBLE SUPREME COURT OF INDIA

CIVIL MISCELLANEOUS APPEAL NO: _____/2012 [UNDER ARTICLE 136 OF CONSTITUTION OF INDIA, 1950]

IN THE MATTER OF

RAMAN KAPADIA........................................................................Appellant

V.

DIMPLE SOOD............................................................................Respondent

MEMORIAL ON BEHALF OF APPELLANT

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TEAM NO. 12

TABLE OF CONTENTS

LIST OF ABBREVIATIONS............................................................................. III INDEX OF AUTHORITIES................................................................................. V STATEMENT OF JURISDICTION............................................................... VII STATEMENT OF FACTS............................................................................... VIII ISSUES FOR CONSIDERATION..................................................................... X SUMMARY OF ARGUMENTS......................................................................... XI ARGUMENT ADVANCED... XIII PRAYER FOR RELIEF.... XXIII

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TEAM NO. 12 LIST OF ABBREVIATIONS

S. No. 1. 2. 3. 4. 5. 6. 7. 8. 9. 13. 14. 15. 16. 17. 18. 19. 20.

ABBREVIATION & AIR Bom. BomCR Cal CriLJ Cr.P.C DLT Del. Ed Edn. FB Guj. HL HP Ker Mad. : and

EXPANSION

: All India Reporter : Bombay (High Court) : Bombay Civil Reporter : Calcutta (High Court) : Criminal Law Journal : Criminal Procedure Code : Delhi Law Times : Delhi (High Court) : Edited by : Edition : Full Bench : Gujarat (High Court : House of Lords : Himachal Pradesh ( High Court) : Kerala (High Court) : Madras (High Court)
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TEAM NO. 12 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34 35. MhLJ MLR MP O Ori p. P. P&H Raj SCALE SCC SCR Sec . v. Vol. : Maharashtra Law Journal : Matrimonial Law Reporter : Madhya Pradesh ( High Court) : Order : Orissa : Page : Pacific Reporter : Punjab & Haryana : Rajasthan ( High Court) : Supreme Court Almanac : Supreme Court Cases : Supreme Court Reporter : Section : Versus : Volume

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TEAM NO. 12

INDEX OF AUTHORITIES
CASES 1. D. Velusamy v. D. Patchaiammal, AIR 2011 SC 479 2. Michelle Marvin v. Lee Marvin, 18 Cal.3d 660 (1976) 3. S. Khushboo vs. Kanniammal & Anr. (2010) 5 SCC 600 4. Badri Prasad v. Dy. Director of Consolidation, AIR 1978 SC 1557 5. Ramdev Food Products Ltd. v. Arvindbhai Rambhai Patel and Ors (2006) 8 SCC 726 6. A Dinohamy v. WL Blahamy(1928) 1 MLJ 388 (PC) 7. Mohabhat Ali v. Mohammad Ibrahim Khan AIR 1929 PC 135 8. Abhijit Bhikaseth Auti v.State Of Maharashtra and Others, 2009 CriLJ 889 9. Gokal Chand v. Parvin Kumari, AIR 1952 SC 231 10.Sarwan Singh v. State of Punjab AIR 1957 SC 637 11.Prabhoo v. Emperor, AIR 1941 All 402 (FB) 12.Babulal v. State of Punjab, (1963) 2 SCJ 209; 13.Chako Mathai v. State of Kerala, AIR 1964 Ker 222 14.Anan Pradhan v. State, 1982 Cri LJ 1585 15.Ashokan v. State of Kerala, 1982 Cri LJ 173; 16.Bharat Kumar v. State of Gujrat, 1982 Cri LJ 1314; 17.Bishan Das v. State of Punjab, AIR 1975 SC 573.

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TEAM NO. 12 BOOKS 1. Gandhi, B. M. , Indian Penal Code, Second Edition, Eastern Book Company (2002) 2. Gaur, K. D. , The Indian Penal Code, Fourth Edition, Universal Law Publishing Co. (2009) 3. Ratanlal & Dheerajlal, The Code of Criminal Procedure, 19th Edition, Lexis Nexis Butterworths Wadhwa (2010) 4. Jain, Subhash C., The Constitution of India, 1st edition, Taxmann 5. Choudhari, V. R., Commentaries on Protection of Women from Domestic Violence Act, 2005 & Rules with Allied Laws, Premier Publishing Company 6. Sarvaria, S K, Ra Nelsons Indian Penal Code, 10th Edition, Edition, Lexis Nexis Butterworths Wadhwa (2008) 7. Lal, Batuk, Law of Evidence, 5th Edition, Orient Publisher 8. Nandi. N, Encyclopedia of Hindu Law, 3rd Edition, Keshav Prakashan

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TEAM NO. 12 Statues Referred 1. Constitution of India, 1950 2. Indian Penal Code, 1890 3. Criminal Procedure Code, 1973 4. Indian Evidence Act, 1872 5. Protection of Women Against Domestic Violence Act, 2005 6. Family law (Scotland) Act 2006

STATEMENT OF JURISDICTION

The Appellant in Criminal Miscellaneous Appeal No._____/2010 most humbly submits that the Honble Supreme Court of India at New Delhi has the appropriate jurisdiction under Article 136 of Constitution of India to hear the matter and adjudicate accordingly. Hence the present case is in this Honble Supreme Court.

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TEAM NO. 12 STATEMENT OF FACTS

1. That the Appellant (here Raman Kapadia) is a 26 year old man working in the Multinational Company by the name of Mark n Louis situated in Mysore. 2. That the respondent (here Dimple Sood) is a 24 year old girl is from a very wealthy and high class family pursuing her post graduation in business studies from a highly reputed institution New Delhi. 3. That during the training of respondent in the Mark n Louis, respondent meet appellant. 4. That both of them (i.e. respondent and the appellant) became good colleagues after some time. 5. That due to the hectic work schedule they (respondent and appellant) were not able to give enough time to each other so they mutually decided to stay in an apartment together in the same region in order to give time to each other and their work as well. 6. That from the past i.e. in college as well as in his professional life, the appellant has been famous for his friendly and romantic nature with his female friends. But owing to his serious relationship towards the respondent, the appellant confessed his past to her and the respondent being an understanding partner at the time accepted the same. 7. That from 2nd February, 2008, they started living together. 8. That they lived happily for three months but as the time passed there were many issues which arose between the two. 9. That the respondent is from a wealthy family and has always lived a lavish and comfortable life and started to face difficulties in the small apartment.
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TEAM NO. 12 10.That the appellant is from a middle class family and also has a limited salary and was unable to fulfill the additional and unnecessary demands of the respondent. 11.That the unorganized and untidy life style of the respondent started annoying the appellant and that started to build a disinterest among them. 12.That on 11th of May, 2008 while heading towards his apartment the appellant saw the respondent with another person (Raj Oberoi) under whom the respondent was training, in a cafe near the office premises. 13.That the person with whom the respondent was sitting in the cafe is having a higher post then the appellant in the office. But the appellant didnt pay much attention on this incident and left for his apartment. 14.That on the same night respondent didnt come back to the apartment and when appellant tried to communicate with her on her cell, he found it switched off. 15.That on the next morning when she returned back, she told the appellant that she had met with an accident and had stayed at a friends house last night (here Sameera). 16.That on 13th of May, 2008 the appellant suspected the respondent of cheating on him when she came late again, but he thought it to be a co-incidence. 17.That from the day thereafter, the appellant saw the respondent many times at different places like shopping malls, amusement parks, restaurants, etc. and coming late at night had become regular. 18. That the appellant suffered mental harassment due the change in the behavior and attitude of the respondent though he didnt allege her of any betrayal. 19.That one night, when the respondent as usual came late, a heated conversation exchanged between the two.
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TEAM NO. 12 20.That on the aforesaid day the appellant was heavily drunk and due to mental harassment and grave frustration, the appellant slapped the respondent and tried to have forceful sexual intercourse with her. 21.That on the same night the respondent left the apartment and shifted to her old place.

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TEAM NO. 12 ISSUES FOR CONSIDERATION

1. Whether or not the present appeal is maintainable?

2. Whether or not the present appeal is maintainable in the case of maintenance where a man and a woman are cohabiting explicitly without marriage?

3. Whether or not the present appeal is maintainable in the case of rape or domestic violence?

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TEAM NO. 12 SUMMARY OF ARGUMENTS

ISSUE 1 : Whether or not the present appeal is maintainable? Under art. 136 the Supreme Court has power to grant special appeals without taking cognizance of the limitations laid down in art.134 of the constitution. Thus, the appeal is maintainable under the same.

ISSUE 2: Whether or not the present appeal is maintainable for the case of maintenance where a man and a woman are cohabiting explicitly without marriage?

Cohabitation is an arrangement whereby two people decide to live together on a long-term or permanent basis in an emotionally and/or sexually intimate relationship. But, this arrangement has only been recently legalized in India whereby even today it has not been properly defined what constitutes of a legal live in relationship. Many judgments are still pending which will decide the grounds of what and what not will be considered legal. Under the Protection of Women from Domestic Violence Act, 2005 grounds have been laid down as to in what circumstances can a women who has been cohabiting with a man, file for

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TEAM NO. 12 maintenance. In India, the Supreme Court has laid down certain conditions only by satisfying which a woman will be granted maintenance. A minimum requisite period has been defined only after which maintenance can be claimed by or granted to the aggrieved party. But in our case, neither the respondent was asked by my client to leave the house nor has she been living with him from a very long period which makes it irrelevant for her to claim maintenance.

ISSUE 3 : Whether the evidence provided by respondent is substantive for rape or domestic violence or both? Sec. 375 of Indian Penal Code 1860 defines rape as a crime which is punishable. In criminal jurisprudence it is fundamental that a person accused of an act is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence charged. The burden of proof lies on the prosecution and unless it proves so, the court cannot record him as guilty. The evidence in this case is to be provided by the respondent. In this case, the respondents unfortunately met with an accident on 18th June as per the report provided by the respondent. The report mentioned that the respondent suffered severe injury and the scars could not be removed easily and the respondent has not provided with any proof that can substantially prove that the injury was due to the act of the appellant.

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TEAM NO. 12 WRITTEN SUBMISSIONS

1.

Appeal is maintainable under Art. 136: The appeal is maintainable under Art.136 of Special Leave Petition. Art.136 (1) of Constitution of India states that: Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India

Under Article 136 of the Constitution of India any person aggrieved by any judgment, decree, determination or order in any cause or matter passed or made by any Court or Tribunal in the territory of India may appeal to the Supreme Court of India. Accordingly a person aggrieved by any order or judgment of High Court or of Tribunal may appeal to the Supreme Court by filing Special Leave Petition. Art.136 is very broad-based and confers a discretion on the Court to hear appeals in any cause or matter1. The criminal appeal may be brought may be brought to Supreme Court under Art. 136 when these are not covered by Art. 134, or when the High Court refuses to grant fitness certificate, or the certificate has not been granted properly, or when the matter falls outside the Act of Parliament extending criminal appellate jurisdiction of the Supreme Court.

Kunhayammed v. State of Orissa, AIR 2000 SC 2587, Durga Shaker v. Raghu Raj, AIR 1954 SC 520
1

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TEAM NO. 12 The present case doesnt fit under the criteria provided under Art. 134 which states as follows: An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India if the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death; or certifies under Article 134A that the case is a fit one for appeal to the Supreme Court: Provided that an appeal under sub clause (c) shall lie subject to such provisions as may be made in that behalf under clause ( 1 ) of Article 145 and to such conditions as the High Court may establish or require Art. 134 confers limited criminal appellate jurisdiction on the Supreme Court. The facts of the present case do not fulfill either of the condition mentioned in art. 134. Also the certificate oto appeal has not be provided to the appellant.So the Appellant can only have access to justice under art. 136.

2.

Condition that would entitle a woman to maintenance where a man and woman are cohabiting together explicitly when they are not married The status of respondent cannot be regarded as wife who can claim for maintenance under Hindu Marriage Act, 1955. As per section125 (1)(b), which defines wife as: "Wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. The term 'wife' in Section 125 of the Code of Criminal Procedure, includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried. The woman not having the legal status
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TEAM NO. 12 of a wife is thus brought within the inclusive definition of the term 'wife' consistent with the objective.2 Further the status of respondent also does not qualify her for maintenance under The Protection of Women Against Domestic Violence Act, 2005. In India, the judges have a view that the Act is applicable to those couples only who have a relation 'relationship in the nature of marriage'3 is akin to a common law marriage. Is Badri Prasad v. Dy. Director of Consolidation 4, for the first time the Supreme Court recognised live in relationships as valid marriage after the independence of India. If two people, man and woman, want to live together, who can oppose them? What is the offence they commit here? This happens because of the cultural exchange between people,5" a special three-judge bench of Chief Justice of India (CJI) K.G. Balakrishnan , Justices Deepak Verma and B. S. Chauhan observed while declaring cohabitation as legal . The cohabiting of an unmarried man with unmarried women is legal and there can be no restriction to imposed to them6. In the cases prior to independence like A Dinohamy v. WL Blahamy7, the Privy Council laid down a broad rule postulating that, Where a man and a woman are proved to have lived together as a man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage. The same
Vimala (K) vs. Veeraswamy (K), (1991) 2 SCC 375 D. Velusamy v D. Patchaiammal, 2010 Indlaw SC 876 4 AIR 1978 SC 1557 5 S. Khushboo vs. Kanniammal & Anr. (2010) 5 SCC 600 6 Ramdev Food Products Ltd. v. Arvindbhai Rambhai Patel and Ors (2006) 8 SCC 726 7 (1928) 1 MLJ 388 (PC)
2 3

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TEAM NO. 12 principle was reiterated in the case of Mohabhat Ali v. Mohammad Ibrahim Khan8. The Supreme Court of India has laid down condition under which a cohabiting woman can claim maintenance under The Protection of Women Against Domestic Violence Act, 2005 in the case of D. Velusamy v D. Patchaiammal.9 In our opinion, not all live-in relationships will amount to a relationship in the nature of marriage to get the benefit of the Act of 2005 (Protection of Women from Domestic Violence Act). To get such benefits, the conditions mentioned by us above must be satisfied and this has to be proved by evidence, the court had said while laying down the parameters which enable cohabiting women to claim damages under the Protection of Women from Domestic Violence Act, 2005. The court further laid down the following parameters: In our opinion a 'relationship in the nature of marriage' is akin to a common law marriage. Common law marriages require that although not being formally married :(a) The couple must hold themselves out to society as being akin to spouses. (b) They must be of legal age to marry. (c) They must be otherwise qualified to enter into a legal marriage, including being unmarried. (d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

The respondent only fulfills the conditions that she was having a legal age to marry and was not unmarried or otherwise not disqualified to marry. However there are evidently proof that proves that neither the appellant nor the
8 9

AIR 1929 PC 135

2010 Indlaw SC 876

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TEAM NO. 12 respondent ever pretended themselves as spouse among the society. They were just a man and a women who were in a bond of love and were cohabiting together. They started cohabiting as they were not able to allot time to each other due to their hectic work schedule. Also it must be noticed that they were in a bond of love and affection, and neither the appellant nor the respondent have expressly revealed that they were akin to spouse and behaved like a married couple. The view of Judges in the case of D. Velusamy v D. Patchaiammal10, in determining the right to maintenance to the women in cohabitation under the Act of 2005 is very essential. As per sec. 2(a) of theAct which defines: aggrieved person" means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent; Further Sec. 2(f) defienes "domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family"; The court were in view that the phrase in the nature of marriage cannot be interpreted to in live-in relationship. The Judges futher added that In our opinion not all live in relationships will amount to a relationship in the nature of marriage to get the benefit of the Act of 2005. To get such benefit the conditions mentioned by us above must be satisfied, and this has to be proved by evidence. If a man has a 'keep' whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage
10

Supra 8

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TEAM NO. 12 The decision of the court can be interpreted as only those women are eligible for maintenance under the Act who are having a cohabiting relationship having a nature of marriage. The court restricted the eligibility by ruling out the principles necessary for maintenance. Further, it has been provider by the Supreme Court in this decision that They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time however the court doesnt defined the term a significant period. In the case of Abhijit Bhikaseth Auti v.State Of Maharashtra and Others11 the Supreme Court also observed that it is not necessary for woman to strictly establish the marriage to claim maintenance under sec. 125 of Cr.P.C..A woman living in relationship may also claim maintenance under Sec.125 CrPC when she is in live in relationship for a considerable period of time. However in case of Gokal Chand v. Parvin Kumari12 the court observed that continuous co-habitation of woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage, but the presumption which maybe drawn from long co-habitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them. The court however did not provide a definite period which will enable the status of wife in the case of Abhijit Bhikaseth Auti v.State Of Maharashtra and Others, further in case of Gokal Chand v. Parvin Kumari the court made a precision to that period and defined it as a couple of years. Further in Scotland, where the cohabitants are governed by the legislation Family law (Scotland) Act 2006, for the first time identified, and in the process by default legalised, live-in relationships of over 150000 cohabiting
11 12

2009 CriLJ 889

AIR 1952 SC 231

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TEAM NO. 12 coples in the country. Section 25 (2) of the Act said that a court of law can consider a person as a co-habitant of another by checking on three factors; the length of the period during which they lived together, the nature of the relationship during that period and the nature and extent of any financial arrangements. In Cannada Living together is legally recognised as "common law marriage13". In many cases common law couples have the same rights as married couples under the federal law of the country. A common law relationship gets legal sanctity if the couple has been living in a conjugal relationship for at least 12 continuous months, or the couple are parents of a child by birth or adoption, or one of the couple has custody and control of the child and the child is wholly dependent on that person for support.

As per the definition A union of two people not formalized in the customary manner as prescribed by law but created by an agreement to marry followed by Cohabitation. Common law marriage allows persons who live together as man and wife for a sufficient time and with the intent of having an exclusive relationship akin to a marriage to have the legal rights of formally married persons. Not all states recognize common law marriages. Among those states that permit a common-law marriage to be contracted, the elements of a common-law marriage vary slightly from state to state. The necessary elements are (1) cohabitation and (2) "holding out." "Holding out" means that the parties tell the world that they are husband and wife through their conduct, such as the woman's assumption of the man's surname, filing a joint federal income tax return, etc. That means that mere cohabitation can never, by itself, rise to the level of constituting a marriage. Of course, many disputes arise when facts (such as intentions of the parties or statements made to third parties) are in controversy. Common law marriage is commonly perceived as being created by living together for a certain number of years. However, states generally don't define a number of years of cohabitation for a common law marriage to exist. In order to have a valid common law marriage, there must be proof of all of the following: cohabitation for a significant period of time hold themselves out as a married couple -- typically this means using the same last name, referring to the other as "my husband" or "my wife" and filing a joint tax return, and intent to be married.
13

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TEAM NO. 12 In Ireland, to introduce legal rights for "separated" live in couples to demand maintenance or share their property with their dependent partners. The scheme will apply to both opposite sexs and same sex unmarried couples who have been living together for three years, or two years in the case of a cohabiting couple with children. The respondent and the appellant started cohabiting together on 2nd February, 2008 and cohabited till 21st June, 2008. The total period that they cohabited together is less than that of five months. The judgments and legislation stresses on the time period and as discussed above the range of time period is from 12 months to 3 or more no. of years. So respondent and the appellant completed at most five month of cohabiting together so that makes the respondent ineligible to contest for maintenance under the Act. Also the time being the most hectic schedule for the both, the consideration for which, likely would be dismissed that they shared the essence of relationship as spouse. For getting the maintenance under the cohabitation the cohabiting couple must spend a reasonable period of time with each other. The reasonable time must be appropriate enough so that they could develop consideration and duties toward each other like that in case of comman law marriage.
3. The evidence provided by respondent is not enough substantive to proof

rape or domestic violence or both. The respondent has not provided any substantive evidence to show that the injury or the scars or both were a cause of action of the appellant. The respondent meet with an accident on 11th May, and was prone to accidents. The report provided by respondent dated 18th June did not mention only that she had suffered from severe injury and scars but did not determine any conclusive reason or prescribe any date on which the injury or both happened. The term rape is defined under Sec. 175 of Indian Penal Code as:
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TEAM NO. 12 A man is said to commit rape who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: First. Against her will. Secondly.Without her consent. Thirdly. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly.With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly. With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly. With or without her consent, when she is under sixteen years of age.

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TEAM NO. 12 Further Sec. 176 declares the punishment of rape. Rape being a criminal offence is punishable under law if the evidence so provides. The burden of proof in all criminal cases lies on the prosecution.14 In all criminal cases the quilt of the accused must be proved beyond doubt.15 The court in case of Sarwan Singh v. State of Punjab16, held that a suspicion cannot be regarded as a proof. Here, the present case there is just an suspicion that the injury or the scars are results of the action of the plaintiff. Further in the case of Anan Pradhan v. State17, it was held that in criminal cases suspicion however strong can never be take the place of proof. The fact in the present case states that there is no substantive proof that any injury was caused to respondent by the appellant. Sec. 101 and 102 of Indian Evidence Act, 1872 deals with burden of proof. Sec.103 states that The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Further Sec. 104 states that:

Prabhoo v. Emperor, AIR 1941 All 402 (FB) Babulal v. State of Punjab, (1963) 2 SCJ 209; Chako Mathai v. State of Kerala, AIR 1964 Ker 222 16 AIR 1957 SC 637 17 1982 Cri LJ 1585, also in case of Ashokan v. State of Kerala, 1982 Cri LJ 173; Bharat Kumar v. State of Gujrat, 1982 Cri LJ 1314; Bishan Das v. State of Punjab, AIR 1975 SC 573.
14 15

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TEAM NO. 12 The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence. So in the present case the burden of proof lies on the respondent to prove that she was subjected to any action by the plaintiff. However the proof provided by the respondent does clearly satisfy that the injury procured to the respondent was a cause due to an action of appellant and without a substantial proof the appellant cannot be held liable.

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TEAM NO. 12 PRAYER FOR RELIEF Wherefore, in the light of above, it is most humbly prayed that this Hoable Court may be pleased to allow the appeal and adjudge and declare that:

The appellant is not guilty and further quash all other charges, and judgments against the appellant as prayed for,

And pass any other order in favor of the humble appellant which it may deem fit in the ends of Justice, equity and good conscience

All of which is respectfully submitted.

Date: Time: (Counsel for Appellant)

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