IN THE HON’BLE HIGH COURT OF DELHI

AT NEW DELH

IN THE MATTER OF:

SUSHANT

AGE-28 YEARS …PETITIONER

VERSUS

STATE OF N.C.T. OF DELHI …RESPONDENT

(CRIMINAL QUASHING PETITION NO. OF 2019)

WITH

ABHA

AGE-18 YEARS …APPELLANT/REVISIONIST

VERSUS

TARUN …RESPONDENT

(APPEAL NO. OF 2019)

WITH

SUSHANT

AGE-28 YEARS …APPELLANT/ REVISIONIST

VERSUS

ABHA

AGE-18 YEARS … RESPONDENT

(APPEAL NO. OF 2019)

WRITTEN SUBMISSION ON BEHALF OF DEFENDANTS

1
IN THE HON’BLE HIGH COURT OF DELHI

AT NEW DELH

TABLE OF CONTENT
S.NO. PARTICULARS PAGE NO.

1 COVER PAGE 1

2 TABLE OF CONTENTS 2

3 INDEX OF AUTHORITIES 3-4

4 STATEMENT OF JURISDICTION 5

5 STATEMENT OF FACTS 6-7

6 ISSUES RAISED 8

7 SUMMARY OF ARGUMENTS 9-10

8 ARGUMENTS ADVANCED 11-30

9 PRAYER 31

2
IN THE HON’BLE HIGH COURT OF DELHI
AT NEW DELH

INDEX OF AUTHORITIES

S.No. Statues Page

1 The Protection Of Women From Domestic Violence

15,17,18,20,21,28
Act, 2005
2 Indian penal code, 1860 14

3 Indian Evidence Act, 1872 27,28

S.No. Reports Page

1 Justice Verma Report 12

3
S.No. Page
Judgments No.’s
1 Harvinder Kaur vs Harmander Singh 14,16,17
Choudhry
2 S.P Chengalvaraya Naidu vs Jagannath 15
3 D.Velusamy vs D.Patchaiammal 17,19,21
4 Haunsabai vs Balkrishna Krishna Badigar 29
5 Kokilaben Manilal Patel 22
6 Chandra Mohini Srivastava vs Avinash 24
Prasad Srivastava & Anr
7 Smt. Ningamma And Another vs Chikkaiah 27
And Another
8 Malan vs Baburao Yeshwant Jadhav 29
9 Zubeda Bi v. Abdul Khader 30
10 Jashoda Shambhusing Sekhavat vs State Of 30
Gujarat And Anr.
11 Pushpinder Kaur vs Balbir Sing 24

4
IN THE HON’BLE HIGH COURT OF DELHI
AT NEW DELH

STATEMENT OF JURISDICTION

To

Registrar,

Hon’ble High court of Delhi,

New Delhi

Sub.- Statement of Jurisdiction according to rules.

Most respectfully showeth

1. That the present Appeals/Revision are filed against the order order
passed by Ld. District courts
of Delhi, so this Hon’ble High Court has Jurisdiction to hear the
Present matter under section
482, 397 of criminal procedure code, 1973.
2. That the matter is fixed for 09.02.2019 in this Hon’ble Court for
Arguments.

Requested Accordingly
Defendants

5
IN THE HON’BLE HIGH COURT OF DELHI
AT NEW DELH

STATEMENT OF FACTS

It is most respectfully submitted herein as under

1. That Abha 18 years old young girl had been dating Tarun, who was her
senior in the same
college and lived in a live-in-relationship.
2. Abha’s parents were unaware about the development of this Live-in
relationship as Abha has
concealed this fact from them, The parents of Abha came to know only
when Abha got
pregnant.
3. That the parents of Abha in order to cover the pregnancy of Abha and to
prevent social stigma,
of their daughter and their family decided to marry Abha with Tarun.
4. That Tarun and his parents refused to accept the offer of marriage as
Abha is having illicit
relations with somebody else.
5. That As a result, Abha in order to fetch money from Tarun and his
family has filed a petition for
maintenance in Tis Hazari Court, Delhi on the basis of live-in-
relationship, which was concealed
by her even from her parents.
6. That Abha’s parents decided to marry her with Sushant as he was known
to them.
7. That Abha’s father put the proposal of her marriage to Mr. Pankaj
Mehra, his childhood friend
to consider Abha for his son, Sushant aged 28 years.
8. Both the families knew each other well, but Abha and Sushant had not
met each other before
that time
9. That Sushant was a law graduate from University of Delhi and during his
college days, he was
actively involved in youth politics and remained General Secretary of
Student Council of the
College
10. That Sushant was highly ambitious to join the national politics. He
decided to contest the
election of Lok Sabha and became the youngest member of the Parliament
after winning
election.
11. That After discussing the entire situation truthfully, Sushant’s
father accepted the proposal for
marriage. The festivities began in both the families.

6
12. A pre-wedding tour was planned for Sushant and Abha so that they can
understand each other.
13. Tarun came to know about Abha’s plan and reached Kasauli to meet her.
Abha saw Tarun and
tried to avoid him. But when Sushant enquired about the guy, she
introduced Tarun as his
friend. Sushant became awkward.
14. Marriage was solemnised on 12th January, 2017.
15. After marriage, Sushant used to remain busy in the political activities
and spent very less time
with his newly wedded wife, Abha. Due to this, emotional bonding between
the two could not
build-up.
16. After marriage, only on a very few occasions, Sushant had intercourse
with Abha just to fulfil his
physical lust. Due to this, Abha was frustrated.
17. On 28th January, 2017 She was shocked to see that Sushant was physically
involved with his fast
friend, Abhay.
18. That on the same day at around 10:00 P.M., Sushant returned home after
consumption of
alcohol and in drunken state, he asked Abha about her visit to the Hotel.
She refused for that
and shouted at him. Both exchanged hot arguments.
19. That Sushant had intercourse with Abha which was resisted by her. The
incident led to
breakdown of the marriage completely.
20. That Abha in a good intention narrated the whole story to her mother, but
her mother explained
the sad reality of her life with Tarun and advised her to adjust herself
in the new environment as
it was her only home now after marriage.
21. That When Abha discussed the matter with her in laws, they started
abusing her for her pre-
marriage acts and threatened her that she has no option except to remain
at their mercy
22. That Mother-in-law of Abha also slapped her
23. She was advised to shut her mouth and not to tell anything outside.
24. That Feeling aggrieved, Abha left the home of Sushant and started living
on rental
accommodation in Dwarka, New Delhi. Abha filed a petition for maintenance
and specific
demand for separate residence in District Court at Dwarka.

7
IN THE HON’BLE HIGH COURT OF DELHI
AT NEW DELH

ISSUES RAISED
1. Whether facts of the present case warrant the benefit of Exception-II
Section-375, I.P.C.,
1860 to be given to Accused/Husband.
2. Whether factors in the present case warrants Cohabitation between the
appellant and
defendant herein.
3. Whether Abha is liable to be maintained by Tarun
4. Whether ground taken by Abha in appeal against the Judgment of Ld. Tis
Hazari court is
sustainable in Law
5. Whether ground made by Sushant that Tarun is liable to maintain Abha is
legally justified

6. Whether Sushant is Legitimate father of child of Abha.

7. Whether Husband is Legally liable to Maintenance his dependent Wife.

8
IN THE HON’BLE HIGH COURT OF DELHI
AT NEW DELH

Summary of Arguments
1. Whether facts of the present case warrant the benefit of Exception-II
Section-375, I.P.C.,
1860 to be given to Accused/Husband.
It is submitted herein that the present case is different from the normal
course of nature as
evident from the facts and arguments advanced, Legislature provided this
exception to
save the institution of marriage but herein the petitioner himself is
destroying the
institution of marriage by indulging in homosexual activites with his fast
friend Abhay.
2. Whether factors in the present case warrants Cohabitation between the
appellant and
defendant herein.
It is submitted herein that the petitioner has treated Abha/wife herein
with utmost cruelty,
in the circumstances of the case it is crystal clear that if Abha is
obliged to cohabit with
Sushant, her life would be in danger.
3. Whether Abha is liable to be maintained by Tarun
It is submitted herein that Abha is not liable to be maintained by Tarun,
as she is lawfully
married wife of Sushant and she can’t claim maintenance from two men
under the Indian
law, it is against the settled law of the Land.
4. Whether ground taken by Abha in appeal against the Judgment of Ld. Tis
Hazari court is
sustainable in Law
It is submitted herein that the paternity of child is disputed by the
Tarun, and moreover,
 Sushant being the lawfully husband of Abha is liable to maintain Abha’s
Child.
5. Whether ground made by Sushant that Tarun is liable to maintain Abha is
legally
justified.
It is submitted herein that Sushant is only liable to maintain Abha as she
is lawfully
married wife of Sushant and not Tarun and moreover as the Sushant had
intercourse with
Abha after knowing of the present fact, the issue has been condoned.

9
6. Whether Sushant is Legitimate father of child of Abha.
It is submitted herein that Sushant is legitimate father of child of Abha as
the issue has been
condoned from the very moment when Sushant had intercourse with Abha after
knowing of
this particular fact.
7. Whether Husband is Legally liable to Maintenance his dependent Wife.
It is submitted herein that Sushant being the lawfully married husband is
liable to
maintain Abha and her child under the established law of the land.

10
IN THE HON’BLE HIGH COURT OF DELHI

AT NEW DELHI

ARGUMENTS ADVANCED

Issue- 01:- Whether facts of the present case warrant the benefit of
Exception-II
Section-375, I.P.C., 1860 to be given to Accused/Husband.

It is most respectfully submitted herein as under:-

1. That the marriage between accused/Husband and victim/wife was solemnized
on 12th
January, 2017.
2. That Victim was merely 18 years old young girl and the accused Sushant
aged 28 years at
the time of marriage.
3. That the victim was pursuing her studies from Ryan International College,
Delhi.
4. That the accused Sushant was a law graduate from University of Delhi.
It is submitted that the Sushant has the knowledge of laws being a law
graduate but he
ignored the appropriate remedy.
It is further submitted that appropriate remedy for Sushsant, being the
husband of the
Abha, as alleged, would be to take a decree of section-09 of Hindu
Marriage Act,1955
rather than to rape his wife and take the shield of the law.
Section-09 of Hindu Marriage Act, 1955 is reproduced herein 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 such petition and
that there is no
legal ground why the application should not be granted, may decree
restitution of
conjugal rights accordingly. “ [Explanation-—Where a question arises
whether there has

11
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].

5. That the accused was also holding the office of General Secretary of
Student Council of
the College, Thereafter, the accused became the youngest member of
the Parliament.
It is submitted herein that accused is very much matured and it is
best expected from his
body being the youngest member of Parliament, (which has the
primary duty to make
laws according to the need of the society and do eradicate the
social evils of the society)
that he will himself abide by the rights of the victim rather than
to commit a breach of
fundamental rights of the victim by taking shield of outdated law.
It would be pertinent herein to note that from time to time
requests and recommendations
were made to repeal this law.

“We, therefore, recommend that:

i. The exception for marital rape be removed.

ii. The law ought to specify that:
a. A marital or other relationship between the perpetrator or
victim is not a valid
defence against the crimes of rape or sexual violation;
b. The relationship between the accused and the complainant is not
relevant to the
inquiry into whether the complainant consented to the sexual
activity;
c. The fact that the accused and victim are married or in another
intimate relationship
may not be regarded as a mitigating factor justifying lower
sentences for rape―.-Justice
verma report1.
6. That the accused is giving very less time to his lawfully married
wife than his lawful
post, due to which emotional bonding between the two could not
build-up.
7. That After marriage only on a very few occasions sexual relations
were made between
the accused and the Victim and that too was to satisfy and fulfill
the physical lust of
accused Sushant.
 8. That On 28th January, 2017 in the night at approximately 2 A.M. when
Victim suddenly
woke up and found that Sushant was not available on the bed, then
the victim/Defendant

1
Justice Verma Report [Page-117 Para-79]

12
stepped out of the room and tried to see what was happening in the room
adjacent to their
bedroom, and the victim was shocked to see that accused herein, is
involved in sexual
activities with his friend, Abhay.
It is submitted herein that the Accused was indulged in unwanted
activities with one of
his friend in their home, it is implied herein that the family of accused
was well aware of
this fact, but the parents of the accused and accused himself has never
find it essential to
disclose this fact to the victim and to his family.
It is further submitted that the parents of the accused and accused
himself has played
fraud on the victim by concealing this material fact from the victim with
an malafide
intention.
That parents of the victim has told every fact about the victim in a
truthful manner to the
accused, which shows the honesty of the Victim and his family, but the
accused in order
to upheld his political image has not disclosed this fact to neither the
victim nor to her
parents, as if he had disclosed no one would marry the accused.
9. That there was a big quarrel among the two, when the victim has witnessed
and
confronted the accused about this immoral, illegal act.
It is needless to say that the activities of homosexuality in India are
illegal per se, to be
read with Section 377 of Indian penal code, 1860.
“Unnatural offences.—Who ever voluntarily has carnal intercourse
against the order of
nature with any man, woman or animal, shall be punished with
1[imprisonment for life],
or with imprisonment of either description for a term which may extend to
ten years, and
shall also be liable to fine―
10. That On 25-02-2017 when Sushant was coming out of a hotel, after his
meeting with
party workers, he noticed that Abha was coming with Tarun from a hotel
room and on
this accused loose his temper and has committed Rape on his wife, which
11. Sushant returned home after consumption of alcohol and in drunken state
at around 10:00
P.M. and thereon Both exchanged hot arguments and after that Sushant had
intercourse
against the consent of Abha, as a resultant of which Abha filed F.I.R.
against the act.
12. That the illegal activities of homosexuality by husband during the
existence of a valid
marriage led to spoiling of their relations completely.

13
That breakdown of marriage theory was well explained by this
Hon’ble court, relevant
Paragraph of the Judgment is reproduced herein for the sake of
brevity.
“What is this breakdown theory? Breakdown of "marriage may be
defined as "such
failure in the matrimonial relationship that no reasonable
probability remains of the
spouses again living together as husband and wife for mutual
comport and support." It
means what cannot be mended should be ended. When marriage breaks
down it is wrong
to thing in terms of quality party and innocent party. 'Divorce is
not though hitherto that
has been the dominant notion -"a reward for marital virtue on the
one side and a penalty
for marital diligence, on the other." but "a defect for both, a
failure of his marital 'two-in-
one ship' in which both the members, however unequal their
responsibility, arc inevitably
involved together." (Mortner Committee of England 1964). This
theory replaces all the
fault grounds of divorce and recommends irretrievable breakdown as
the sole ground of
divorce. The Divorce Reforms Act 1969 in .England made the
irretrievable breakdown of
"MARRIAGE as the sole ground for divorce, and judicial separation.
The English
Act introduced a most fundamental change is the divorce policy of
Parliament. The
Divorce Reforms Act, 1969, has been repealed, and the same
provisions were reenacted
in the Matrimonial Causes Act, 1973. It is a part of a movement to
remove the notion of
guilty or fault as a necessary basis for a decree of divorce. The
is a drastic reform of
divorce law because it eliminates fault or guilt as the basis of
divorce. "In this object"
says Rayden. the English Act"has very largely succeeded: it has
also resulted in a
massive increase in the number of divorces'. [Rayden on Divorce,
(1983) 14th cd. p.
13]2―.
It is submitted herein that the Victim has left with no other
option else to withdraw
herself from the society of the accused/Husband, as the accused and
the family of
accused commit Acts of Domestic violence of the Victim, against
which a case under The
 Protection of Women from Domestic Violence Act, 2005 is pending
adjudication before
the Ld. Court.

Additional arguments:-

2
Para-62 Harvinder Kaur vs Harmander Singh Choudhry AIR 1984 Delhi 66, ILR
1984 Delhi 546, 1984 RLR 187

14
“The High Court, in our view, fell into patent error. The short question
before the High Court
was whether in the facts and circumstances of this case, Jagannath obtained
the preliminary
decree by playing fraud on the court. The High Court, however, went haywire
and made
observations which are wholly perverse. We do not agree with the High Court
that "there is no
legal duty cast upon the plaintiff to come to court with a true case and
prove it by true evidence".
The principle of "finality of litigation" cannot be pressed to the extent of
such an absurdity that it
becomes an engine of fraud in the hands of dishonest litigants. The courts of
law are meant for
imparting justice between the parties. One who comes to the court, must come
with clean hands.
We are constrained to say that more often than not, process of the court is
being abused.
Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous
persons from all
walks of life find the court-process a convenient lever to retain the
illegal-gains indefinitely. We
have no hesitation to say that a person, who's case is based on falsehood,
has no right to
approach the court. He can be summarily thrown out at any stage of the
litigation3―.-Hon’ble
Supreme Court of India.

It is submitted that the petitioner in order to quash the present F.I.R. has
not come to court with
clean hands, as the petitioner has raised two grounds in support of his
claim, but he himself has
committed the breach of institution of marriage by involving himself in the
sexual activities with
a boy which is witnessed by the Victim and confronted too by the victim.

It is further submitted that the acts of the petitioner herein will compel
anyone to withdraw
herself from the society of the petitioner, as it is against the true essence
of the marriage, as it has
been stated by Justice Hon’ble Mr. A. B. Rohatgi of this Hon’ble court
that “A marriage is not
every casual commerce. A mere casual commerce, without the intention of
cohabitation, and
bringing up of children, would not constitute .marriage. But when two parties
agree to have that
commerce for the procreation and bringing up of the children, and for such
lasting cohabitation
that would be a marriage in the sight of God and man. Cohabitation continues
to the end of life.
It is not mere temporary or casual commerce, but a contract of a permanent
nature, in the
intention of the parties. Marriage is a contract of the greatest importance
in civil institutions,

3
S.P Chengalvaraya Naidu vs Jagannath1994 AIR 853, 1994 SCC (1) 1

15
and it is charged with a vast variety of rights and obligations. Rights of
property are attached to
it. The essence of matrimony is consent. (Linda v. Belisario (1795) 1 Hag.
Con. 216(21) per Sir
William Scott at pp 30 232.] (42) MARRIAGE- is the very foundation of civil
society The relation
once formed, the law steps in and holds the parties to various obligations
and liabilities.. .It is an
institution in. the maintenance of which the public is deeply interested, for
it is the foundation of
the family and of society without which there would be neither civilisation
nor progress.
(Meganatha v. Smt. Susheela. Air 1957 Mad. (426) (22)]. Whether it is English
law or the Indian
Act marriage is a voluntary union for life of one man and one woman to the
exclusion of all
others. [Hyde.v. Hyde. (1866) L.R. 1 P and D 130(23). 133 per Lord Penzance-]
4―. But the
accused himself has violated the law and wants to quash the F.I.R. by hiding
his fault.

Issue- 02 Whether factors in the present case warrants Cohabitation between

the appellant
and defendant herein.

It is most respectfully submitted herein as under:-

“Nearly two hundred years ago. Lord Stowell said: "The Court can
decree cohabitation;
it cannot decree sexual inter- course." (Forester v. ForsterJ. "The
parties can cohabit,
without there being sexual intercourse between them; although as a
rule there is such
intercourse if the parties are competent or of an age when sexual
intercourse is likely to
take place, but there may be cohabitation without sexual
intercourse." (Evans v. Evans
(1948) I K.B. 175, 180 per Lord Goddard D (J). Quoting Jowitt's
Dictionary the learned
'judge thought that "Marital intercourse" is synonymous with sexual
intercourse. This is
a misunderstanding of a legal phrase. It means consortium. It means
fellowship. It means
common lot. The Indian legislature was following Lord Stowell and
not -Bertland
Russell.―-Hon’ble Mr. Justice Avadh Behari Rohatgi of this
Hon’ble Court5.
1. That the marriage was solemnized on 12.01.2017 and the parties
separated on 25.02.2017
, time spent by parties in a shared household is about 40 days.
2. That during this period of 40 days, Petitioner and his family
members, specifically his
mother and parents treated defendant with utmost cruelty against
which in addition to the

4
 Harvinder Kaur vs Harmander Singh Choudhry AIR 1984 Delhi 66, ILR 1984
Delhi 546, 1984 RLR 187
5
Harvinder Kaur vs Harmander Singh Choudhry; AIR 1984 Delhi 66

16
present F.I.R., a case under The Protection of Women from Domestic
Violence Act, 2005
against the petitioner and mother and father of petitioner is also
pending adjudication.
3. That the cruelties committed on the body of defendant are mentioned
herein below,
which led the defendant to desert the petitioner.
I. That After marriage, only on a very few occasions, Sushant
had intercourse with
Abha just to fulfil his physical lust.
II. That Sushant was physically involved with his fast friend,
Abhay.
III. That Sushant after consumption of alcohol and in drunken
state behave in an
immoral and abnormal way.
IV. That Sushant had intercourse with Abha which was resisted by
her.
4. That it was hard for the defendant to live under the same roof with
the petitioner, as she is
facing cruel Acts of the Husband, the petitioner herein.
5. That in the interest of Justice this petition should be dismissed.

Issue-03- Whether Abha is liable to be maintained by

Tarun

It is most respectfully submitted herein as under:-

“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 marriage6―-Hon’ble
Supreme Court of India.

It is provided herein that Act of 2005 would mean the Protection of Women
from Domestic
violence Act, 2005 as used in the Judgment.

It further observed that:-

“No doubt the view we are taking would exclude many women who have had a
live in
relationship from the benefit of the 2005 Act, but then it is not for this
Court to legislate or
6 D.Velusamy vs D.Patchaiammal CRIMINAL APPEAL NOS. 2028-2029__OF 2010

17
amend the law. Parliament has used the expression `relationship in the nature
of marriage' and
not `live in relationship'. The Court in the grab of interpretation cannot
change the language of
the statute―.

Brief facts of the case are submitted herein as under:-

1. That Abha, the defendant an old young girl was pursuing her studies
from Ryan
International College, Delhi.
2. That the defendant had been dating a boy named Tarun, who was her
senior in the same
college.
3. That their friendship converted into love affair and they started
living together.
4. That Abha is having illicit relations with somebody else, out of which
Abha got
pregnant.
5. That To prevent the social stigma, the parents of Abha decided to marry
Abha with
Tarun.
6. That Tarun and his parents refused to accept the offer of marriage.
7. As a result, Abha filed a petition for maintenance in Tis Hazari Court,
Delhi on the basis
of live-in-relationship.

Whether the relation shared by the parties herein, comes under the purview of
Live-in
relationship.

That Hon’ble Supreme court of India has issued guidelines to check that
whether the facts of the
case warrants the case to come under the purview of live-in relation or not,
Guidelines are
reproduced herein:-

“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.

18
(d) They must have voluntarily cohabited and held themselves out to the world
as being akin to
spouses for a significant period of time.

(see `Common Law Marriage' in Wikipedia on Google) In our opinion a

`relationship in the
nature of marriage' under the 2005 Act must also fulfill the above
requirements, and in addition
the parties must have lived together in a `shared household' as defined in
Section 2(s) of the Act.
Merely spending weekends together or a one night stand would not make it a
`domestic
relationship―.7

1. That the couple/parties herein, at no point of time has hold

themselves out to society as
being akin to spouses, which is the first requirement for a
relation to be known as Live-in
relation.
2. That the age of the defendant is stated as 18 years old but the age
of the appellant is not
stated herein, in the absence of which it would be difficult to
presume the age of
appellant and further, in the absence of the age, the second
requirement is at hold in the
circumstances of the case.
It is to be provided that legal age of marriage for boy is 21
years8.
3. That one of the essential for marriage is that the parties are of
the legal age to marriage,
but as above mentioned, the facts of the case are silent on the age
of appellant.
It is submitted that in the exact age of the appellant it would be
impossible whether the
parties are qualified to enter into a legal marriage.
4. That the parties cohabitated but the period for which they have
cohabitated is not
specified, in the absence of which it would not in the interest of
the justice to hold that
they had cohabited for a significant period of time.
It is further submitted that in addition to the above
disqualification of the requirement of
live-in relation the parties have not held themselves akin to
married couple to the world at
no point of time, as they are college students.

7 D.Velusamy vs D.Patchaiammal CRIMINAL APPEAL NOS. 2028-2029__OF 2010

8
Hind Marriage Act, 1955, section -05

19
That it is further submitted as mentioned in the guidelines it would be
important to check
whether the parties lived in a shared household.

Shared household in terms of THE PROTECTION OF WOMEN FROM DOMESTIC

VIOLENCE Act, 2005 is reproduced herein :-

“[“shared household― means a household where the person aggrieved lives

or at any stage has
lived in a domestic relationship either singly or along with the respondent
and includes such a
household whether owned or tenanted either jointly by the aggrieved person
and the respondent,
or owned or tenanted by either of them in respect of which either the
aggrieved person or the
respondent or both jointly or singly have any right, title, interest or
equity and includes such a
household which may belong to the joint family of which the respondent is a
member,
irrespective of whether the respondent or the aggrieved person has any right,
title or interest in
the shared household9].―

ï‚· The basic requirement of Shared household is that parties at any

stage has lived in a
domestic relationship, definition of domestic relationship is
reproduced herein as under

“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 family10―.

ï‚· It is submitted herein that parties are neither related by

consanguinity, marriage or
through a relationship in the nature of marriage(as mentioned
above), adoption or are
family members living together as a joint family, so it would be
against the interest of
Justice to hold that parties have lived in a shared household and
in domestic relationship.

ï‚· It is submitted herein that all the above mentioned requirements

for a relation to be
termed as Live-in relation are not fulfilled.

9
THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE Act, 2005, Section 2(S).
10
THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE Act, 2005, Section 2(F)
20
It is further submitted that in the absence of which it would be difficult to
hold that parties have
lived in a live-in relationship, as required by Hon’ble Supreme Court of
India in the above
mentioned case.

5. That Live-in relationships are specifically not covered by any

specific statutes, in the
absence of which Hon’be Supreme Court of India has held that
“However, Indian society
is changing, and this change has been reflected and recognized by
Parliament by
enacting The Protection of Women from Domestic Violence Act,
2005―11.
6. That in addition to The Protection of Women from Domestic Violence
Act, 2005, criminal
procedure code, 1973 provides the law of maintenance, which too is
not applicable in the
facts of the present case.
Section 125 of Criminal Procedure Code, 1973 is reproduced herein
as under

125-“Order for maintenance of wives, children and parents.

(1) If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not,
unable to maintain itself―
Explanation.- For the purposes of this Chapter,-
“["Wife" includes a woman who has been divorced by, or has obtained a
divorce from, her
husband and has not remarried].―
7. That it is submitted that Abha is not the legally wedded wife of
Tarun, it has been alleged
that she is Live-in partner of Tarun, but as described above she is
not live-in partner of
Tarun.
ï‚· That as Abha is neither wife nor Live-in partner of
Tarun, she is not eligible to be
maintained by Tarun.
8. That in addition to the above mentioned ground, she is not eligible
to be maintained by
Tarun, if for the sake of arguments we will consider/believe that
she is lawfully married
wife.
9. That it has been categorically stated in the section 125 of criminal
procedure code, 1973
itself that a wife who has remarried doesn’t come under the
purview of Wife.

11
D.Velusamy vs D.Patchaiammal CRIMINAL APPEAL NOS. 2028-2029__OF 2010

21
It is submitted herein that it is an admitted fact, the Abha and
sushant are not living
 together and hence separated and after that Abha has married
Sushant.

Hon’ble Gujarat High court has

held that
“Section 125 of the Code of 1973 has to some extent altered the scheme of
maintenance envi
saged in the corresponding Section 488. Under the repealed Code it is only
the 'wife' as t
he term is generally understood the female spouse in a subsisting marriage
that could seek ma
intenance from the husband.
But Section
125(1) of the new Code obliges a person who refuses or neglects to maintain a
woman who
was his wife and who had been divorced to maintain her if she is unable to
maintain herself.
Such obligation is to last until she remarries. The scope of the term wife is
enlarged to take in t
he case of such a woman and this is by Explanation (b) to Section 125 (1).
Explan-
ation (b) to that sub section reads thus :

"Explanation For the purposes of this Chapter,

(a) ... ... ... ...

(b) "wife" includes a woman who has been divorced by, has or obtained a
divorce
from, her husband and has not remarried.12"

10. That it is submitted herein that, as she is lawfully married wife of

Sushant, she can not
claim maintenance from two persons as it is against the interest
of Justice.

Issue- 04 Whether ground taken by Abha in appeal against the

Judgment of Ld. Tis
Hazari court is sustainable in Law

It is most respectfully submitted herein as under:-

1. That Abha has filed the present claim appeal on the ground that she
is carrying in womb
the foetus which was the result of live-in-relationship between
Tarun and her.

12
Kokilaben Manilal Patel case SPECIAL CRIMINAL APPLICATION (FOR
MAINTENANCE) NO.
9318 of 2016
 22
2. That the ground raised by Abha is bad in law, as under section-125
of criminal procedure
code, 1973, provision for maintenance of legitimate and
illegitimate child is specifically
provided, and Abha cannot ask Tarun to maintain her by taking the
advantage of her child
to be born.
Relevant paragraph of section 125 criminal procedure code, 1973 is
reproduced herein
“125. Order for maintenance of wives, children and parents.

(1) If any person having sufficient means neglects or refuses to maintain

(b) his legitimate or illegitimate minor child, whether married or not,

unable to maintain itself―.

3. That legislature has provided separate remedies for maintenance of

child, mother of the
concerned child has her rights for maintenance, she cannot ask for
maintenance on behalf
of her child for herself.
Hon’ble High Court of Punjab and Haryana in this behalf has held
that “Thus, there is
no doubt that application under this Section on behalf of an unborn
child is not
maintainable because no refusal or neglect on the part of father to
maintain such child
can be proved or inferred. Moreover, due to natural or unforeseen
circumstances, the
birth of a child alive cannot be taken for granted. Thus, due to
such like contingencies the
filing of application on behalf of the child still in the womb of
the mother would introduce
vagueness in such like proceedings and such was not the intention
of the legislature in
enacting this provision providing for speedy maintenance allowance
in order to save the
wives, children or parents from becoming destitute. No doubt, it
will result in hardship to
the minor child if the order of cancellation of his maintenance
allowance is upheld, yet
all the same there is no option but to do so because the
application on his behalf was not
maintainable till he was born, although the mother had claimed
maintenance allowance
on behalf of the unborn child in the original application.
Moreover, the mother can file a
fresh application on behalf of the minor child―13.
4. That the appellant appeal is based on misinterpretation of law and
hence liable to be
dismissed.

13
Pushpinder Kaur vs Balbir Singh II (1992) DMC 483

23
Issue- 05 Whether ground made by Sushant that Tarun is liable to maintain
Abha is legally
justified

It is most respectfully submitted herein as under:-

1. That the appellant cannot raise this ground at this stage as the marriage
has been duly
consummated.
2. That the appellant is Law student and Law maker, it is expected that he is
aware of the law
that the ground raised by him herein, is barred by limitation as he is
aware of this particular
fact he is expected to raise it at the earliest possible opportunity and
not in the appeal, herein.
3. That the ground raised by appellant herein to run away from his social,
matrimonial duty is
against the settled law of the land, as it is settled law of the land
that if either of the spouse
has conducted a sexual intercourse with the adulterous wife then the
condonation would be
presumed and the party can’t take any legal action against the party.
4. It was held by Hon’ble Supreme Court of India that “The fact that the
husband cohabited
with the wife even after the knowledge that she had been guilty of
cohabiting with
another would be sufficient to constitute condonation14―.
5. In this case on multiple opportunities sexual intercourse has been done
between the parties
and moreover the appellant has forced himself upon the defendant against
which a F.I.R. has
also been lodged.
6. That the ground raised by appellant is of pre marriage, the law says that
even after the
marriage if the party makes sexual relations with the adulterous spouse
then also the spouse
cannot run away from the law as mentioned above this is to be considered
as condonation by
the party concerned.
7. That the appellant, who is law maker and a law student by profession from
a reputed
university of the land cannot us his wife as a slave just to fulfill his
lust, and when the
defendant fights for her statutory rights the appellant has raised a
ground which is
specifically told to the family of the appellant which shows the
bonafide of the defendant and
her family.

14
Chandra Mohini Srivastava vs Avinash Prasad Srivastava & Anr 1967 AIR 581,
1967
SCR (1) 864
24
8. That It is submitted herein that the defendant has been cheated and only
used as a slave by
the appellant to satisfy his lust, as she is young girl of 18 years and he
is 28 year and with a
malafide intention he choose to play with the modesty of the defendant.
9. That the appellant used the defendant herein for sexual purposes only, as
it has been
categorically stated that After marriage, Sushant used to remain busy in
the political activities
and spent very less time with his newly wedded wife, Abha and more over
due to this
emotional bonding between the two could not build-up, Which caused undue
cruelty to
defendant.
10. That when the defendant come to know about the reality of appellant that
he is homosexual
and defendant seen appellant is involved in sexual relations with the boy,
namely Abhay,
specifically after marriage, and before this Hon’ble court questioning
the pre marriage
conduct of defendant.
Needless to say, It is principle of Law that applicant must come to the
court with clean hands,
here, he/the appellant himself is guilty of making homosexual relations
with his friend,
Abhay.
11. That the appellant is aware of this particular fact before the marriage,
this marriage is not
forced upon the appellant, he has given consent to marry the defendant
after knowing all the
material facts, which is quite evident from the fact that thy both went to
kasauli for a trip
before marriage.
12. That the most important fact is that both the families know each other
well, so it is not
expected that Sushant doesn’t know about this fact.
It is pertinent to mention that, in addition to this, all things
specifically have been told to
sushant and to his family.
13. That appellant has destroyed the dignity of marriage by committing sexual
activities with
Abhay, and moreover this is done at his home only, a prudent mind will
always consider that
this fact is known to the family of Sushant too, they all with the
malafide intention to fulfill
their personal interest has concealed this fact from defendant and her
family.
14. That as appellant is a law student it could be presumed that he is well
aware of his rights,
available to him under the personal laws, But he didn’t raised any
objection before the
appropriate forum at the appropriate time but he chooses to raise this
ground only to run
away from his statutory duties.

25
15. That if this ground is accepted then great injustice would be caused to
helpless
Abha/Defendant herein, as her parents have also refused to raise a help
of hand in this time,
when she needed it the most.
However, it is provided herein that after marriage, husband has a
statutory obligation to
maintain his wife and his children’s.
16. That the appeal filed by the appellant needs to be dismissed in the
interest of Justice and the
order of Ld. District court to be upheld.

Issue-06 Whether Sushant is Legitimate father of child

of Abha.

It is most respectfully submitted herein as under:-

1. That this ground raised by appellant herein is barred by limitation and

law of the land, as in
catena of judgments Hon’ble court was pleased to observed that if a
man has done sexual
intercourse with a wife then the condonation would be presumed
2. That at the time of marriage appellant, herein knows the fact that that
she is pregnant but he
choose to marry Abha.
It is pertinent to mention herein that as he is law student and
moreover he is a powerful man
and a member of parliament, it would be against the interest of justice
that h is unaware of
the fact of pregnancy which was clary told by the parents of the
defendant to Mr. Pankaj
Mehra.
3. That the fact that she was pregnant before marriage would come in force at
this particular
time if Sushant com to know about this fact now but he is well aware of
this fact, and this act
has been condoned by appellant and no section 112 of the Indian
evidence act will prove the
legitimacy of the child, Which says that :-
“The fact that any person was born during the continuance of a valid
marriage between his
mother and any man, or within two hundred and eighty days after its
dissolution, the mother
remaining unmarried, shall be conclusive proof that he is the legitimate son
of that man unless it
can be shown that the parties to the marriage had no access to each other at
any time when he
could have been begotten―15.

15
Indian Evidence Act, 1872 section-112

26
 It would be pertinent herein to mention that it could be presumed that
the defendant herein as
waived his right to latter part of the section as he has accepted the
defendant and later on he
should not be allowed to take a U turn from this.
Hon’ble Karnataka High Court was pleased to observe that
“ Reading of this section reveals that in two types of cases or of
proof of other two sets of
facts, conclusive proof of legitimacy shall apply. It provides that if
it is proved as fact that
any person was born during the continuance of a valid marriage, between
his mother and
any man, then birth of a person during the continuance of a valid
marriage between his
mother and any man will itself be the conclusive proof of his being
legitimate son of that man
or in a case where it is proved as a fact that the person concerned was
born within two
hundred and eighty days of the dissolution of the marriage between his
mother and the man
concerned and that mother during this period i.e., these two hundred
and eighty days
remained unmarried, then the person concerned born during the period of
two hundred and
eighty days from the dissolution of the marriage i.e., the child shall
be presumed or the said
person should be presumed to be the legitimate son or daughter of the
man to whom his
mother was married and whose marriage has been dissolved prior to his
birth16.―

It is provided that Hon’ble court was speaking on Section-112 of Indian

Evidence Act, 1872.
Here, it is further provided that only relevant part of the judgments is
produce for the sake of
brevity.

Moreover the court was of the opinion that As regards "Conclusive proof, the
Evidence
Act provides and declares that the proof of one fact will be the conclusive
proof of another fact,
then Evidence Act mandates that no evidence shall be given for the purpose of
disproving that
fact.

4. That it would be against the interest of Justice if appellant is permitted

to raise this ground
before this Hon’ble court, as the appellant has accepted the wife and
it an implied fact that he
has accepted the child to be begotten.

16
Smt. Ningamma And Another vs Chikkaiah And Another AIR 2000 Kant 50
27
5. That at now this stage the appellant cannot run away from his statutory
right to give
maintenance to his lawfully married wife.

Whether Husband is Legally liable to Maintenance his

dependent Wife.

It is most respectfully submitted herein as under:-

1. That it is submitted herein that the appellant and defendant are

lawfully married.
2. That husband has committed utmost cruelty upon the body of
defendant, cruelty in the
nature of Physical, Mental against which a case under the
Protection of Women from
Domestic Violence Act, 2005 against the Appellant and his family
members.
3. That it is settled law that Husband is liable to maintain his wife,
criminal procedure
code,1973 provides for the maintenance of wife, which reads here as
under
“If any person having sufficient means neglects or refuses to
maintain-
a) his wife, unable to maintain herself, or
b) his legitimate or illegitimate minor child, whether married or
not, unable to maintain
itself―. 17
4. That it is submitted herein that the appellant has all the
sufficient mans and duty to
maintain the defendant and their child.
Judicial Pronouncements in support of the argument are mentioned
herein as under:-
It was observed by Hon’ble Karnataka High Court that “Section 125 of the
Criminal Procedure
Code provides for a speedy remedy regarding the maintenance to a wife, who is
unable to
maintain herself. The expressions used in clause (a) of sub-section (1) of
Section 125 make it
clear that if a husband having sufficient means neglects or refuses to
maintain his wife who is
enable to maintain herself then the Magistrate of the First Class may, upon
proof of such neglect
or refusal, order the person so neglecting or refusing, to make a monthly
allowance for the
maintenance of his wife. The expressions "unable to maintain" have been
introduced in the
amended provisions of Criminal Procedure Code, 1973, Such expressions were
not used in the
corresponding Section 488 of the old Cr.P.C18―.

17
criminal procedure code, 1973,Section-125
18
Haunsabai vs Balkrishna Krishna Badigar 1981 CriLJ 110, ILR 1980 KAR 612

28
It was observed by Hon’ble Karnataka High Court that:-
“Sections 125 to 128 of the new Code constitute one family. They have been
grouped together in
Chapter IX of the new Code under the caption, "order for maintenance of
wives, children and
parents". These provisions are intended to fulfill a social purpose. Their
object is to compel a
man to perform the moral obligation which he owes to society in respect of
his wife, children and
parents. By providing a simple, speedy but limited relief, they seek to
ensure that the neglected
wife and children are not left beggared and destitute on the scrap-heap of
society and thereby
driven to a life of vagrancy, immorality and crime for their subsistence as
observed in Bhagawan
Dutt's case while considering the corresponding provision of the old
Code―19

Hon’ble Karnataka High Court was pleased to held that:

"Adverting to the first point, it is obvious that Section 125 of the Code of
Criminal Procedure
makes it clear that the husband is required to maintain his wife who is
unable to maintain
herself. This is what Section 125(1)(a) clearly states. That being so, it is
obvious that the
petitioner must positively aver in her petition that she is unable to
maintain herself in addition to
the facts that her husband has sufficient means to maintain her and that he
has neglected to
maintain her. On going through the petition carefully, I find that though
Smt. Zubedabi has
averred in the petition that her husband has means and that he has nowhere
whispered that she
is unable to maintain herself. That being so, her husband in his statement of
objections had no
occasion to meet that point.20"

Hon’ble Gujarat High Court has held that

“There is no valid reason for denying interim maintenance even where
validity of marriage may
be disputed and it would not be appropriate to defer the grant of interim
maintenance until all
questions are finally decided by the Magisterial Court. Having regard to the
facts and
circumstances of the case―21.

19
Malan vs Baburao Yeshwant Jadhav ILR 1980 KAR 1323, 1980 (2) Kar. L.J.
414
20
Zubeda Bi v. Abdul Khader 1978 Cri LJ 1555 (Kant)
21
 Jashoda Shambhusing Sekhavat vs State Of Gujarat And Anr. (1993) 1 GLR
356

29
5. In the circumstances mentioned herein, it is prayed that kindly dismiss
the appeal filed by
the appellant.

30
IN THE HON’BLE HIGH COURT OF DELHI
AT NEW DELH

PRAYER

1. Pass an order dismissing the quashing petition filed by

Petitioner/Accused,and,

2. Pass an order of dismissing the appeal filed the

appellants/Revisionists, and,

3. Pass any other order, Relief as the Hon’ble Court deem fit it
do in the

circumstances of the Case.

Prayed Accordingly.

31