T030 - Petitioner

SARASWATHY LAW COLLEGE, TINDIVANAM & INSTITUTE OF LEGAL EDUCATION
TEAM CODE: T030

1ST NATIONAL CONSTITUTIONAL MOOT COURT COMPETITION 2022
BEFORE THE HON’BLE SUPREME COURT OF INDIANA
REVIEW PETITION (Crl.) No. ___ / 2022
(Under Article 137 Of The Constitution of Indiana, 1950 read with

Order XLVII, Rule 1 of the Supreme Court Rules, 2013)
In the Matter of
The National Women Rights and Welfare Association and Anr. ......Petitioners
v.
Union of Indiana and Ors. ......Respondents
WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS
Most Respectfully Submitted to the Hon’ble Supreme Court of Indiana
1
MEMORANDUM ON BEHALF OF THE PETITIONERS
TABLE OF CONTENTS
LIST OF ABBREVATIONS ………………………………………….………………………. 3
INDEX OF AUTHORITIES …………………………………………………….……………. 5
Cases Cited ……………………………………………………………………………….. 5
Statutes, Acts and Rules …………………………………………………………………... 5
International instruments …………………………………………………………………. 6
Books and Commentaries ………………………………………………………………… 6
Miscellaneous …………………………………………………………………………….. 6
Legal Database …………………………………………………………………………….7
STATEMENT OF JURISDICTION …………………………………………………………. 8
STATEMENT OF FACTS …………………………………………………………………… 9
ISSUES RAISED ……………………………………………………………………………. 10
SUMMARY OF ARGUMENTS …………………………………………………………….. 11
ARGUMENTS ADVANCED ………………………………………………………………... 12
1. THE PETITION FILED BY NWRWA CHALLENGING THE JUDGEMENT
OF THE HON'BLE SUPREME COURT IS MAINTAINABLE ……………... 12
1.1. The Petitioner has the requisite Locus Standi ………………………………… 12
1.2. There is error apparent on the face of record in Judgment ……………………. 13
2. SECTION 3 OF PCMA ACT IS ULTRA VIRES TO POCSO ACT AND THE
CONSTITUTION OF INDIANA ……………………………………………….. 15
2.1. Section 3 of PCMA act is ultra vires to POCSO Act …………………………. 15
2.1.1. The concept of Voidable marriage lacks practicality ………………………
2.1.2. Sexual assault in name of child marriage falls under purview of POCSO Act
2.1.3. POCSO Act prevails over PCMA ………………………………….
2.2. Section 3 of PCMA act is ultra vires to the constitution of Indiana………….…18
2.2.1. Violation of fundamental rights ……………………………………………
2.2.2. Lacks to be in accordance with international conventions …………………
3. THE HON'BLE SUPREME COURT’S DECISION OF ACQUITTING THE
ACCUSED FROM POCSO AND PCMA IN THE CASE OF KANNAGI IS
NOT JUSTIFIABLE …………………………………………………………… 21
3.1. Kannagi's unwillingness to involve in sexual intercourse ……………………21
3.2. The Acquittal is unjust ………………………………………………………..22
PRAYER ……………………………………………………………………………………24
2
LIST OF ABBREVATIONS
S.No. ABBREVIATIONS EXPANSION
& And
¶ Paragraph
AIR All India Reporter
Anr Another
Art Article
CEDAW The Convention on the Elimination of All Forms of

Discrimination against Women
Crl Criminal
Cr.P.C Code of Criminal Procedure
Ed. Edition
et. Al And others
Etc., Et Cetra
FIR First Information Report
i.e., That is
Ibid Ibidem- In the same place
HC High Court
HMA Hindu Marriage Act
Hon’ble Honourable
3
No. Number
NWRWA The National Women Rights And Welfare

Association
Ors. Others
ICCPR The International Covenant on Civil and Political

Rights
IPC Indian Penal Code
PCM Prohibition of Child Marriage
PCMA Prohibition of Child Marriage Act
POCSO Protection of Children from Sexual Offence
Pg. Page
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
Sec Section
UDHR Universal Declaration of Human Rights
UNCRC United Nations Convention on the Rights of the

Child
UOI Union of India
u/s Under section
Vol Volume
Vs. Versus
4
INDEX OF AUTHORITIES
CASES CITED
1. Bangalore Medical Trust vs. B.S. Muddappa, 1991(4) SCC 54

2. M.S. Jayaraj vs. Commissioner of Excise, Kerala, (2000) 7 SCC 552
3. Union of India vs. Nareshkumar Jagad & Others, Review Petition (C) D. No. 40966 of 2013
4. Mukesh vs. State (NCT of Delhi), 2018 SCC OnLine SC 673;
5. Devender Pal Singh vs. State NCT of Delhi, AIR 2003 SC 886
6. The High Court of judicature at Patna and Anr. vs. Rakesh Kumar, Civil Review No. 153 of 2015
7. Independent Thought vs. Union of India, (2017) 10 SCC 800
8. Arhant Janardan Sunatakari vs. The State of Maharashtra, Criminal Appeal No. 332 / 2020
9. Devipoojak Mukeshkumar vs. State Of Gujarat, R/Crl Appeal No. 866 of 2021
10. Kishwar vs. State of Bihar, AIR 1996 5 SCC 125
11. Sunil Batra vs. Delhi Administration, 1978) 4 SCC 409
12. State of Uttar Pradesh vs. Chhorey Lal, (2011) AIR SC 697
13. Dileep Singh vs. State of Bihar (2005) 1 SCC 88
14. State vs. Schwale, 143 N.E. 29
15. Khalilur Rahman vs. Emperor, AIR 1933 Rang 98
16. Anthony Alias Bakhavatsalu vs. State (1960) AIR Mad. 308
17. T. Shivakumara vs. Inspector of Police, H.C.P.No. 907 of 2011
STATUTES, ACTS AND RULES
1. The Constitution of India, 1950

2. The Code of Criminal Procedure, 1973
3. The Indian Penal Code, 1860
4. The Prohibition of Child Marriage Act, 2006
5. The Protection of Children from Sexual Offences Act, 2012
6. The Hindu Marriage Act, 1955
7. The Child Marriage Restraint Act, 1929
8. The Supreme Court Rules, 1966
9. The Supreme Court Rules, 2013
5
INTERNATIONAL INSTRUMENTS
1. The United Nations Convention on the Rights of the Child

2. Convention on the Elimination of All Forms of Discrimination Against Women
3. The International Covenant on Civil and Political Rights
4. Universal Declaration of Human Rights
BOOKS AND COMMENTARIES
1. M.P. Jain, Indian Constitutional Law, (6th Ed, 2010)

2. Durga Das Basu, Shorter Constitution Of India, (14th Ed, 2009)
3. V.N. Shukla, Constitution of India, (12th Ed, 2016)
4. B.M. Gandhi, Indian Penal Code, (4th Ed, 2017)
5. S.N. Misra, The Code Of Criminal Procedure Code, (23rd Ed, 2020)
6. R.P. Kataria, Commentary on Protection of Children from Sexual Offences Act, 2012 (1st Ed.,
2014)
7. D. S. Chopra, Interpretation Of Statutes, (1st Ed., 2014)
MISCELLANEOUS
1. Modak, Purnendu ‘Determinants of Girl-Child Marriage in High Prevalence States in India’

Journal of International Women's Studies, Vol. 20 (2019)
2. Lee-Rife, et.al, What Works to Prevent Child Marriage: A Review of the Evidence. Studies in
Family Planning, (2012)
3. Law Commission of India, 205th Report on ‘Proposal to Amend the Prohibition of Child
Marriage Act, 2006 and Other Allied Laws.’ (2008)
4. Law Commission of India, 172nd Report on ‘Review of Rape Law.’ (2000)
5. Raj A. When the mother is a child: the impact of child marriage on the health and human
rights of girls. Archives of Disease in Childhood (2010)
6
6. Sinha, Ajay Kumar, et al. ‘Child Marriage’ Economic and Political Weekly , Vol. 48 (2013)
7. Pramila, B. ‘CHILD MARRIAGE SCENARIO IN INDIA, Proceedings of the Indian History
Congress’ , Vol. 74 (2013)
8. Rasmussen B, Maharaj N, Karan A, et al. ‘Evaluating interventions to reduce child marriage
in India’ Journal of Global Health Reports, Vol. 5 (2021)
LEGAL DATABASE
1. https://www.scconline.com/
2. https://www.manupatrafast.com/
3. https://indiankanoon.org/
4. https://www.jstor.org/
7
STATEMENT OF JURISDICTION
The Petitioners humbly submits this memorandum before the Hon’ble Supreme Court of
Indiana under Article 137 of the Constitution of Indiana read with Order XLVII, Rule 1 of
the Supreme Court Rules, 2013 made under Article 145 of the Constitution of Indiana.
Article 137 in the Constitution of India 1950
137. Review of judgments or orders by the Supreme Court Subject to the provisions of any
law made by Parliament or any rules made under Article 145, the Supreme Court shall have
power to review any judgment pronounced or order made by it.
Article 145 in The Constitution of India 1950
145. Rules of Court, etc
(1) Subject to the provisions of any law made by Parliament the Supreme Court may from
time to time, with the approval of the President, make rules for regulating generally the
practice and procedure of the Court
Order XLVII of Supreme Court Rules 2013: "Review"
1. The Court may review its judgment or order, but no application for review will be
entertained in a civil proceeding except on the ground mentioned in Order XLVII, rule 1 of
the Code, and in a criminal proceeding except on the ground of an error apparent on the face
of the record.
The application for review shall be accompanied by a certificate of the Advocate on Record
certifying that it is the first application for review and is based on the grounds admissible
under the Rules.
The present memorandum sets forth the Facts, Contentions and Arguments
8
STATEMENT OF FACTS
Indiana is a democratic country with diverse traditions and cultures. Since its independence,
it has signed and followed various multinational conventions.
Kannagi is a 20 year old woman who lives in Thirukulam village with her two children,
husband and relatives. At the age of 14, she was married to her close relative due to family
financial situations and village tradition. Kannagi, who was doing well in her studies, initially
objected to this harassment but later she accepted this situation due to family circumstances.
After the marriage, Kannagi's in-laws did not allow her to study more than higher education.
Currently, she is doing her 11th standard and has two children, the elder one being 3 years
old and the younger being 1 year old.
Based on the information provided by the staff of the Hospital for delivery the second child,
an FIR was filed on 9 persons, including her husband, parents and relatives under the
provisions of POCSO and PCM Acts. The special court convicted Ragu for life imprisonment
and other accused for 2 years.
Aggrieved by the judgment, a petition was filed before the Mullai High Court on behalf of
the accused and Kannagi. Since the Mullai High Court upheld the judgment of special court,
an appeal was preferred to the Supreme Court, which acquitted all the accused from the
offence, and held that Kannagi's marriage was valid under Section 3 of PCMA.
This issue engendered The National Women Rights And Welfare Association (NWRWA), a
women's right organization, which has now filed a petition challenging the judgment of the
Supreme Court in the case of Kannagi, and further claiming that Section 3 of PCM Act is
ultra-vires to the POCSO act and Constitution of India
9
ISSUES RAISED
ISSUE 1
WHETHER THE PETITION FILED BY NWRWA CHALLENGING THE

JUDGEMENT OF THE HON'BLE SUPREME COURT IS MAINTAINABLE OR
NOT?
ISSUE 2
WHETHER SECTION 3 OF PCMA ACT IS ULTRA VIRES TO POCSO ACT AND

THE CONSTITUTION OF INDIANA?
ISSUE 3
WHETHER THE HON'BLE SUPREME COURT’S DECISION OF ACQUITTING THE

ACCUSED FROM POCSO AND PCMA IN THE CASE OF KANNAGI IS
JUSTIFIABLE OR NOT?
10
SUMMARY OF ARGUMENTS
1. WHETHER THE PETITION FILED BY NWRWA CHALLENGING THE

JUDGEMENT OF THE HON'BLE SUPREME COURT IS MAINTAINABLE
OR NOT?
It is humbly submitted before this Hon’ble Supreme Court that the Review Petition
filed by NWRWA is maintainable under Art. 137 of the Constitution of Indiana read with
Order XLVII, Rule 1 of the Supreme Court Rules, 2013. Moreover, the petition is
maintainable since the petitioner has requisite locus standi and there is an error apparent
on the face of record in the judgment of the Hon’ble SC.
2. WHETHER SECTION 3 OF PCMA ACT IS ULTRA VIRES TO POCSO ACT

AND THE CONSTITUTION OF INDIANA?
It is humbly submitted before this Hon'ble court that the Section 3 of PCMA is in clear
violation to the fundamental rights and other provisions under the constitution of Indiana.
Moreover, it has also caused violations to the international conventions and treaties which
India has signed and ratified.
3. WHETHER THE HON'BLE SUPREME COURT’S DECISION OF

ACQUITTING THE ACCUSED FROM POCSO AND PCMA IN THE CASE
OF KANNAGI IS JUSTIFIABLE OR NOT?
It is humbly submitted that the Hon'ble Supreme Court’s decision of acquitting the
accused from POCSO and PCMA in the case of Kannagi is not justifiable. It is explicit from
the facts that Kannagi underwent harassment during the course of her marriage. Hence, Ragu
making sexual assault and the relatives performing social injustice in the name of child
marriage should not immune them from the offence. Moreover, the impugned judgment of
apex court containing miscarriage of justice which led to the acquittal of accused persons, can
certainly cause injustice to many other similar victims.
11
ARGUMENTS ADVANCED
1. WHETHER THE PETITION FILED BY NWRWA CHALLENGING THE

JUDGEMENT OF THE HON'BLE SUPREME COURT IS MAINTAINABLE
OR NOT?
It is humbly submitted before this Hon’ble Supreme Court that the Review Petition filed by
NWRWA is maintainable under Art. 137 of the Constitution of Indiana read with Order
XLVII, Rule 1 of the Supreme Court Rules, 2013
1.1. The Petitioner has the requisite locus standi
[¶1.] Locus standi is a Latin maxim which refers to the right or capacity to appear and
address the court on a matter. The traditional rule was that only people whose rights have
been infringed or suffered can file a petition. But the Supreme Court has now considerably
relaxed this rule in various case laws.
[¶2.] In the case of Bangalore Medical Trust vs. B.S. Muddappa,1 the Hon’ble Court held
that one cannot be ignored or overlooked on a technical or conservative yardstick of the rule
of locus standi in the absence of personal loss or injury. Also, in the case of M.S. Jayaraj vs.
Commissioner of Excise, Kerala,2 the court has concluded that "it cannot be said that the
petitioners are not aggrieved persons and as such they cannot maintain the petitions".
Thus, the spectacular expansion on the concept of locus standi is much wider and it takes in
its stride anyone who is not a mere busybody.
[¶3.] According to the facts of this particular case, it is explicit that the petitioner NWRWA
is an organization that has been fighting for the rights of women for the last 19 years across
Indiana. Hence, the NWRWA considers it to be aggrieved by the judgment in the case of
Kannagi and has approached the Hon'ble Apex court through a review petition. Further, in
1
Bangalore Medical Trust vs. B.S. Muddappa,1991(4) SCC 54
2
M.S. Jayaraj vs. Commissioner of Excise, Kerala, (2000) 7 SCC 552
12
the case of Union of India vs. Nareshkumar Badrikumar Jagad & Others,3 the Hon'ble SC
held that "we have no hesitation in enunciating that even a third party to the proceedings, if
he considers himself an aggrieved person may take recourse to the remedy of review petition.
The quintessence is that the person should be aggrieved by the judgment and order passed by
this Court in some respect."
[¶4.] Moreover, it is to be noted that the petitioner has approached the Hon'ble SC under
Order XLVII, Rule 1 of the Supreme Court Rules, 2013 which does not limit the remedy of
review only to the parties to the judgment under review. Therefore, the NWRWA even being
a third party to the proceedings, by considering itself as an aggrieved can take recourse to the
remedy of review petition. Hence, any person considering himself “aggrieved" would have
locus to file a review petition.
1.2. There is error apparent on the face of record in the Judgment
[¶5.] It is humbly submitted that in order to exercise the review jurisdiction under the
Article 137, there has to be an error apparent on the face of record leading to miscarriage of
justice.4 Further, in the case of The High Court of judicature at Patna and Anr. vs. Rakesh
Kumar5, the Hon’ble bench stated that, “it is not uncommon for the court to be invited to
decide if its order, decision or judgment suffers from any such error, which calls for review of
the order, decision or judgment, as the case may be. Therefore, if any review petition is made,
the court shall consider the review petition gracefully and with an open mind so that no
miscarriage of justice is caused.”
[¶6.] Adherence to any faulty decision would result in miscarriage of justice and in such
cases, nothing can prevent a court from rectifying its error, because the maxim ‘actus curiae
neminem gravabit’6 can be invoked, in such a case for correcting the error committed by the
court. Similarly, in the present case also, there has been a clear observation of an error
3
Union of India vs. Nareshkumar Badrikumar Jagad & Others, Review Petition (C) D. No. 40966 of 2013
4
Mukesh vs. State (NCT of Delhi), 2018 SCC OnLine SC 673; Devender Pal Singh vs. State NCT of Delhi, AIR
2003 SC 886
5
The High Court of judicature at Patna and Anr. vs. Rakesh Kumar, Civil Review No. 153 of 2015
6
‘actus curiae neminem gravabit’- The act of court shall prejudice no man.
13
apparent on the face of record. The main contention of the counsel on behalf of the petitioner
is that the accused persons (Raghu and other family members who were involved in the
marriage of Kannagi) are liable for conviction under POCSO Act and PCM act.
[¶7.] However, the SC's decision of acquitting them from the same leads to grave
miscarriage of justice. Further, this decision clearly declines the related provisions of law
which constitutes an error apparent on the face of record. Moreover, this decision of Hon'ble
SC could become a major loophole as a judicial precedent and can become a defending
weapon for accusations dealing with the crime of child marriage.
[¶8.] Therefore, in consideration of all the above grounds, it is humbly submitted that the
Review Petition filed by NWRWA challenging the judgment of the Hon'ble Supreme Court is
maintainable.
14
2. WHETHER SECTION 3 OF PCMA ACT IS ULTRA VIRES TO POCSO ACT

AND THE CONSTITUTION OF INDIANA?
[¶9.] It is humbly submitted that the Section 3 of PCMA act is ultra vires to POCSO Act
and the constitution of Indiana since the sexual act committed in name of child marriage falls
under the purview of POCSO Act, but the section 3 of PCM Act immunes from the same.
2.1. Section 3 of PCMA act is ultra vires to POCSO Act
2.1.1. The concept of Voidable marriage lacks practicality

[¶10.] It is humbly submitted before this Hon'ble court that all child marriages should be
declared as void because; the section 3 of PCMA which provides provisions regarding
Voidable marriage lacks practicality.
[¶11.] The section 3 of PCMA making child marriages voidable puts the onus and burden on
the minor to initiate the legal process for seeking a decree of nullity. Additionally, this can be
done only within two years of attaining majority (which means within the age of 20 for the
girl, and 23 for the boy). However, children, especially girls, face various barriers in seeking
this annulment due to the factors of societal, familial and financial constraints.
[¶12.] As per the Section 3(1) of PCMA, the girl can annul her marriage only by filing a
petition for annulment in a District Court. However this impugned section lacks practicality
regarding the same. Because, when the victim decides to annul her marriage, she lacks the
familial and societal support in most of the cases. Moreover, in case if the victim is still
minor, then filing a complaint under the PCMA requires a parent, guardian, or next friend7;
But, given that parents and in-laws typically play a role in the solemnization of child
marriages, this can pose an additional barrier. Therefore, due to this burdensome process,
there is a high possibility that the victim might not be able to obtain the relief she wishes for.
7
Section 3(2) of PCM Act
15
This can also cause a clear violation of the ‘Doctrine of Due process of law.’8 This doctrine
not only examines that there is any law to deny life and individual freedom but also checks if
the law made is reasonable, just and not arbitrary.
[¶13.] Moreover, the PCMA while already containing the provisions regarding the Marriage
of a minor child to be void in its section 12, it also contains a contrading provision under
section 3 to make child marriage voidable which is unjust and unreasonable. Hence the
section 3 of PCMA is in clear violation of the Doctrine of Due process of law and is liable to
be repealed.
2.1.2. Sexual act committed in name of child marriage falls under the purview of
POCSO Act:
[¶14.] It is humbly submitted before this Hon'ble court that the sexual act committed with a
minor even after marriage is a punishable offence under POCSO Act. Further, in the case of
Independent Thought vs. Union of India,9 the court clearly held that "A child remains a child
whether she’s married, unmarried, divorced, separated or a widowed child." In the same case,
it was also held that the sexual intercourse within child marriages are considered to be rape.
[¶15.] Moreover with regard to the concept consensual sexual relationship, it is most humbly
submitted that the consent of minor is considered to be invalid. In the case of Arhant
Janardan Sunatakari vs. The State of Maharashtra,10 the Hon'ble court has held that the
consent given by minor is not considered to be a valid consent in eyes of law. Moreover, the
child should not be subject to any type of sexual assault in the name of child marriage which
is an absolute non essential and undesirable11 customary practice.
8
Doctrine of Due process of law- The state should respect all the legal rights owed to a person by the state as it
is a legal requirement and laws that states enact must conform to the laws of the land like – fairness,
fundamental rights, liberty, etc.
9
Independent Thought vs. Union of India, (2017) 10 SCC 800
10
Arhant Janardan Sunatakari vs. The State of Maharashtra, Criminal Appeal No. 332 / 2020
11
Devipoojak Mukeshkumar vs. State Of Gujarat, R/Crl Appeal No. 866 of 2021
16
[¶16.] Further, the POCSO Act by defining a child to be under the age of 18 fixes the age of
consent at 18. However, the Section 2(a) of PCM Act inspite of defining a child as a person
who, if a male, has not completed twenty-one years of age and if a female, has not completed
eighteen years of age, it remains to be silent on sexual relations within child marriages. But
since it has legitimized children born from child marriages, in a way, it acknowledges the
existence of sexual relations within child marriages. This has caused to be a perfect
contravention with the provisions of POCSO act which completely prohibits and categorizes
the sexual act on a minor to be punishable offence.
[¶17.] Inspite of many laws which prohibits child marriage, the loopholes such as the section
3 of PCM Act continues to promote such practice. Hence, it is the humble submission of the
petitioners that the section 3 of PCM Act is ultra vires to the POCSO Act since it immunes
the perpetrator/accused from such offences which are liable to be punished under the
provisions of POCSO Act.
2.1.3. POCSO Act prevails over PCMA

[¶18.] It is humbly submitted before this Hon'ble court that in order to address the anomaly
and contradictions between different provisions of law relating to the offences against
children, the Criminal Law (Amendment) Act, 2013 placed Section 42A in POCSO Act,
stating that: The provisions of this Act shall be in addition to and not in derogation of the
provisions of any other law for the time being in force and, in case of any inconsistency, the
provisions of this Act shall have overriding effect on the provisions of any such law to the
extent of the inconsistency.
[¶19.] Moreover, it is submitted that the Latin maxim, ‘Generalis Specialibus Non
Derogant’12 is a Latin maxim which has been recognized by the Indian courts as well. It
means that in case of a conflict between two statutes or provisions of the same statute, the
general will yield to the special law or the special law prevails over the general law.
[¶20.] Hence, in the present case, this implies that in cases of conflict between provisions of
POCSO Act and any other law, the former will override. Thus, in all cases of child marriage,
12
‘Generalis Specialibus Non Derogant’- General laws do not prevail over special laws or, the general does not
detract from specifics.
17
as the girl is below 18 years of age, the sexual act on her leading to pregnancy must be
considered as an penetrative sexual assault and should be charged under the POCSO Act.
2.2. Section 3 of PCMA act is ultra vires to the constitution of Indiana
[¶21.] It is humbly submitted before this Hon'ble court that the Section 3 of PCMA is in
clear violation to the fundamental rights and other provisions under the constitution of
Indiana.
2.2.1. Violation of fundamental rights
[¶22.] Article 14:
Many young girls who wish to annul the marriage through Section 3 of PCMA are unable to
do so because of the discriminatory social constraints that the society builds on her. Due to
this, most of the victims are not able to utilize the remedy of annulment. In the case of Madhu
Kishwar vs. State of Bihar,13 the Court had stated that Indian women have suffered and are
suffering discrimination in silence being the victim of the man-made asperities. Hence this
Section 3 of PCMA making child marriages Voidable instead of void in turn violates the
article 14 due to the factor of discrimination in silence.
[¶23.] Article 15:

The POCSO Act was enacted in pursuance of Article 15(3) of the Constitution which
empowers Parliament to make special provisions for the protection of women and children.
However, as stated in the previous ground (2.2), the section 3 of PCMA is in clear
contravention with the POCSO act which in turn violates the Article 15(3) too .
[¶24.] Article 19:

According to Article 19(1)(a), all citizens shall have the right to freedom of speech and
expression. However the victim (minor contracting party) will not be able to exercise this
right. Since, the section 3 of PCMA doesn't make the child marriage void, the societal
pressure would neither allow the child to do so since the marriage is voidable under the
immune of this section. Hence, this causes clear violation to the child's right to freedom of
expression guaranteed under Article 19(1)(a).
13
Kishwar vs. State of Bihar, AIR 1996 5 SCC 125
18
[¶25.] Article 21:

The child marriage indefinitely violates the rights of young girls and risks their lives by
making them vulnerable to violence and exploitation. Marrying a girl in her childhood will
undoubtedly result in infringement of her reproductive rights which has been an integral right
under Article 21 of the Indiana constitution.14 In the case of Sunil Batra vs. Delhi
Administration,15 this Hon’ble Court reiterated that “the right to life included the right to lead
a healthy life so as to enjoy all facilities of the human body in their prime conditions.
[¶26.] The section 3 of PCMA which permits a girl to void a marriage within two years only
after attaining majority poses challenges such as early fertility. For instance, young girls often
face pressures to prove fertility early in their marriage and thus could be pregnant or have
young children during their first two years of marriage, which may pose additional
difficulties when seeking to leave a marriage. This in turn clearly violates the girl's right to
life as guaranteed under Article 21 of the Indiana constitution due to the loss of childhood,
early pregnancy.
[¶27.] Meanwhile when the child is struggling to get out of her early marital life, she is often
left with little or no education. Because, the young brides are forced to drop out of school and
instead take up marital responsibilities. These children are hence deprived of an opportunity
of acquiring life skills and developing themselves. The right to life provided under Article 21
and the dignity of an individual life is not being achieved unless it is tossed and coupled with
the right to education. Hence, the right to access education is also clearly in violation.
[¶28.] Moreover, the 205th Law Commission Report16 states that child marriages amount to
a violation of a child’s right to live with freedom and dignity, right to health, right to
education and right to a holistic development, among others. All these factors are basically an
integral part to uphold the right to life as guaranteed under Article 21 of the constitution.
14
Devipoojak Mukeshkumar vs. State Of Gujarat, R/Crl Appeal No. 866 of 2021
15
Sunil Batra vs. Delhi Administration, 1978) 4 SCC 409
16
Law Commission of India, 205th Report on ‘Proposal to Amend the Prohibition of Child Marriage Act, 2006
and Other Allied Laws.’ (2008)
19
[¶29.] The ‘Doctrine of Severability’17 states that when some particular provision of a
statute offends or is against a constitutional limitation, but that provision is severable from
the rest of the statute, only that offending provision will be declared void. Similarly, in the
present case,since the section 3 of PCMA is ultra vires to both POCSO Act and constitution
of Indiana, it should be declared as void and subsequently repealed.
2.2.2. Lacks to be in accordance with International Conventions
[¶30.] The section 3 of PCM act not only violates the constitutional provisions, but also the
international conventions that are signed and ratified by Indiana. The legal framework on
child marriage in India has to match its international obligations. Article 16(2) of the
Convention on the Elimination of All forms of Discrimination against Women (CEDAW)
1979, which India has signed and ratified, states that “the betrothal and marriage of a child
shall have no legal effect…”.
[¶31.] India has also ratified the UNCRC, 1989, which puts an obligation on the states to
protect the rights of the child. These rights include, but are not limited to, right to expression,
right to freedom, right to health, right to education and right to protection from sexual
exploitation, mental and physical violence, abuse, injury, etc. These are the very rights which
are violated by the voidable status given to child marriages under Section 3 of PCMA.
17
Doctrine of Severability- When some particular provision of a statute offends or is against a constitutional
limitation, but that provision is severable from the rest of the statute, only that offending provision will be
declared void by the Court and not the entire statute.
20
3. WHETHER THE HON'BLE SUPREME COURT’S DECISION OF

ACQUITTING THE ACCUSED FROM POCSO AND PCMA IN THE CASE OF
KANNAGI IS JUSTIFIABLE OR NOT?
[¶32.] It is humbly submitted that the Hon'ble Supreme Court’s decision of acquitting the
accused from POCSO and PCMA in the case of Kannagi is not justifiable.
[¶33.] Further, it is explicit from the facts that Kannagi was not ready to accept her marital
life and initially showed objections to the harassment. However, due to family circumstances,
she was forced to accept such a life which not extinguished her education but also her early
childhood. This has deprived her right to life as conferred under Article 21 of the
constitution. Moreover, in the present case, even if the victim claims that she is leading a
happy life, the interference must be drawn deeply instead of seeing with naked eyes.
3.1. Kannagi's unwillingness to involve in sexual intercourse

[¶34.] It is humbly submitted that Kannagi underwent harassment during the course of her
marriage due to which she had an unwilling marital life. Hence, from this, interference can be
drawn that she could have faced the same during her sexual relationship.
[¶35.] Moreover, expressions "against her will" and "without her consent" may overlap
sometimes but the two expressions have different connotations and dimensions18. The IPC
categorizes these two expressions under separate heads19. "Willingness" is a state of mind and
"consent" is one of the evidences of that state of mind and the real test is whether the assault
has been committed against the will of the victim.20
[¶36.] Further, the Hon'ble court in the case of Khalilur Rahman vs. Emperor,21 held that
every act done against the will of a person, no doubt, is done without her consent. Moreover,
18
State of Uttar Pradesh vs. Chhorey Lal, (2011) AIR SC 697
19
Dileep Singh vs. State of Bihar (2005) 1 SCC 88
20
State vs. Schwale, 143 N.E. 29
21
Khalilur Rahman vs. Emperor, AIR 1933 Rang 98
21
in the case of Anthony Alias Bakhavatsalu vs. State22, it was held that "a woman is said to
consent only when she agrees to submit herself while in free and unconstrained possession of
her physical and moral power to act in a manner she wanted."
[¶37.] However in the present case, the facts of Kannagi's age during marriage and barrier of
pursuing further education, clearly indicates her sufferance to handle such a complex life that
she couldn't bear it both physically and mentally. This is situation clearly depicts her
unwillingness to involve in sexual intercourse.
3.2 The Acquittal is unjust

[¶38.] It is humbly submitted before this Hon'ble court that the relation between Raghu and
Kannagi is not a husband and wife relationship. Instead, it is a perpetrator and victim
relationship. Moreover, the Hon’ble court that in the case T. Sivakumar vs. Inspector of
Police23 held that, “a male who contracts the child marriage of a female child cannot attain
the full status of a husband like a husband of a full-fledged valid marriage”.
[¶39.] Similarly, in the instant case, Kannagi is a minor at the time of marriage and
therefore Raghu cannot attain the full status of a husband and immune him from the
conviction of offences. Moreover, since the unwilling sexual relationship of Kannagi has
been proved in the above ground, the accused Raghu is liable to be punished under Section 4
of offence of penetrative sexual assault under the POCSO act. Moreover, the parents and
relatives who indulged Kannagi in child marriage should also be liable to punishment under
Section 11 of PCM Act for promoting or permitting solemnisation of child marriages.
[¶40.] The impugned judgment of apex court containing miscarriage of justice which led to
the acquittal of accused persons, can certainly cause unjust to many other similar victims.
Because, this judgement can turn out to be a judicial precedent containing loophole by which
22
Anthony Alias Bakhavatsalu vs. State (1960) AIR Mad. 308
23
T. Sivakumar vs. Inspector of Police, H.C.P.No. 907 of 2011
22
many more accused can utilize the ‘Doctrine of Judicial Precedent’24 and ‘Doctrine of
Prospective Overruling’25 to immune them from convictions.
[¶41.] Hence, in order to prevent gross miscarriage of justice by the earlier order of this
Hon'ble Court, it is humbly submitted that Raghu and other accused should be convicted
under the respective provisions of POCSO and PCM act.
24
The 'doctrine of judicial precedent'- It is the rule that a legal principle that has been established by a superior
court should be followed in other similar cases by that court and other courts.
25
Doctrine of Prospective Overruling- It dictates that a decision made in a particular case would have operation
only in the future and will not carry any retrospective effect on any past decisions.
23
PRAYER
WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS

ADVANCED AND AUTHORITIES CITED, MAY THIS HON’BLE COURT BE
PLEASED TO ADJUDGE, HOLD AND DECLARE THAT:
1. THE PETITION FILED BY NWRWA CHALLENGING THE JUDGEMENT OF

THE HON'BLE SUPREME COURT IS MAINTAINABLE
2. SECTION 3 OF PCM ACT IS ULTRA VIRES TO POCSO ACT AND THE

CONSTITUTION OF INDIANA
3. THE ACCUSED PERSONS SHOULD BE LIABLE UNDER THE CONVICTION

OF OFFENCES UNDER POCSO AND PCM ACT
AND/OR
PASS ANY OTHER ORDER THAT IT DEEMS FIT IN THE INTEREST OF JUSTICE,
EQUITY AND GOOD CONSCIENCE.
COUNSELS FOR THE PETITIONER
24

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SARASWATHY LAW COLLEGE, TINDIVANAM & INSTITUTE OF LEGAL EDUCATION

TEAM CODE: T030

SARASWATHY LAW COLLEGE, TINDIVANAM & INSTITUTE OF LEGAL EDUCATION

1ST NATIONAL CONSTITUTIONAL MOOT COURT COMPETITION 2022

BEFORE THE HON’BLE SUPREME COURT OF INDIANA

REVIEW PETITION (Crl.) No. ___ / 2022

(Under Article 137 Of The Constitution of Indiana, 1950 read with

Union of Indiana and Ors. ......Respondents

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS

Most Respectfully Submitted to the Hon’ble Supreme Court of Indiana

1ST NATIONAL CONSTITUTIONAL MOOT COURT COMPETITION 2022

1ST NATIONAL CONSTITUTIONAL MOOT COURT COMPETITION 2022

AIR All India Reporter

CEDAW The Convention on the Elimination of All Forms of

Cr.P.C Code of Criminal Procedure

et. Al And others

FIR First Information Report

Ibid Ibidem- In the same place

HMA Hindu Marriage Act

1ST NATIONAL CONSTITUTIONAL MOOT COURT COMPETITION 2022

NWRWA The National Women Rights And Welfare

ICCPR The International Covenant on Civil and Political

PCM Prohibition of Child Marriage

PCMA Prohibition of Child Marriage Act

POCSO Protection of Children from Sexual Offence

SCC Supreme Court Cases

SCR Supreme Court Reporter

UDHR Universal Declaration of Human Rights

UNCRC United Nations Convention on the Rights of the

u/s Under section

1ST NATIONAL CONSTITUTIONAL MOOT COURT COMPETITION 2022

1. Bangalore Medical Trust vs. B.S. Muddappa, 1991(4) SCC 54

STATUTES, ACTS AND RULES

1. The Constitution of India, 1950

1ST NATIONAL CONSTITUTIONAL MOOT COURT COMPETITION 2022

1. The United Nations Convention on the Rights of the Child

BOOKS AND COMMENTARIES

1. M.P. Jain, Indian Constitutional Law, (6th Ed, 2010)

1. Modak, Purnendu ‘Determinants of Girl-Child Marriage in High Prevalence States in India’

1ST NATIONAL CONSTITUTIONAL MOOT COURT COMPETITION 2022

1ST NATIONAL CONSTITUTIONAL MOOT COURT COMPETITION 2022

Article 137 in the Constitution of India 1950

Article 145 in The Constitution of India 1950

145. Rules of Court, etc

Order XLVII of Supreme Court Rules 2013: "Review"

1ST NATIONAL CONSTITUTIONAL MOOT COURT COMPETITION 2022

1ST NATIONAL CONSTITUTIONAL MOOT COURT COMPETITION 2022

WHETHER THE PETITION FILED BY NWRWA CHALLENGING THE

WHETHER SECTION 3 OF PCMA ACT IS ULTRA VIRES TO POCSO ACT AND

WHETHER THE HON'BLE SUPREME COURT’S DECISION OF ACQUITTING THE

1ST NATIONAL CONSTITUTIONAL MOOT COURT COMPETITION 2022

1. WHETHER THE PETITION FILED BY NWRWA CHALLENGING THE

2. WHETHER SECTION 3 OF PCMA ACT IS ULTRA VIRES TO POCSO ACT

3. WHETHER THE HON'BLE SUPREME COURT’S DECISION OF

1ST NATIONAL CONSTITUTIONAL MOOT COURT COMPETITION 2022

1. WHETHER THE PETITION FILED BY NWRWA CHALLENGING THE

1.1. The Petitioner has the requisite locus standi

1ST NATIONAL CONSTITUTIONAL MOOT COURT COMPETITION 2022

1.2. There is error apparent on the face of record in the Judgment