Draft petition for Supreme Court of India : Amend Hindu Marriage Act, 1955 - Naresh Kadyan

8/9/2019 Draft petition for Supreme Court of India : Amend Hindu Marriage Act, 1955 - Naresh Kadyan

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IN THE SUPREME COURT OF INDIA

(Civil Writ Jurisdiction)

WRIT PETITION (Civil) No. OF 2010

(Under Article 32 of the Constitution of India)

IN THE MATTER OF::

1.

2.

Naresh KadyanS/o Sh. OmprakashKadyan,C-38, RoseApartment,Prashant Vihar,Sector-14, Rohini,

Delhi

Sukhdev Singh s/oR.S. Randhava, age47 years, H. No. 735,Sector22, NIIT,Distt. Faridabad,Haryana

Petitioner No.

1

Petitioner

No.2

//Versus//Union of India,

through the

Secretary,

Ministry of Home

New Delhi

Respondent

A public interest litigation under Article 32 of

the Constitution of India praying for saving the

custom of the Hindus and for issuance of a


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writ, order or direction for the amendment of

THE FIRST SCHEDULE [ DEGREE OF PROHIBITED

RELATIONSHIP] of Hindu Marriage Act to add the

SAGOTRA (Clan) in the Degree of Prohibited

Relationship in the Schedule I and further for

appointment of the Commission of a Retired

Justice of the Honble High Court or Supreme

Court of India for the inquiry of Hindu Society in

the North Region, whether the marriages be

solemnized in the same GOTRA (Clan) or not

and also for appointment of a penal of

Specialist/ Competent Doctors to research

whether the inbreeding is dangers/harmful or

not to the society.

To,

The Honble the Chief Justice of India and His

Companion Justices of the Honble Supreme Court

of India.

The Humble petition

of the petitioners

above-named


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MOST RESPECTFULLY SHOWETH:

1. This is a petition filed under Article 32 of the

Constitution of India wherein the petitioners

seek relief from this Honble Court for

ensuring saving the Custom right and

Religious Right of Hindus under Article of 25

and 25 (2) & 29 (1) of the Constitution of

India and not merely of a few individuals but

all of the Indian Hindus. This is the

Fundamental Right, provided under the

Article 25 (2) of the Constitution of India that:

(2) Nothing in this article shall affect the

operation of any existing law or prevent the

State from making any law-

(a) Regulating or restricting any

economic, financial, political, or other secular

activity which may be associated with

religious practice.

And the Hindu marriage is a religious activity

under the Vedas and Shastras.

2. That culture, religion, tradition and customs

of all the communities are protected under

Article 29(1) of the Constitution of India,


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being a fundamental right guaranteed to the

citizens of India. Article 29 is reproduced

below for kind perusal:-

(1) Any section of the citizens residing

in the territory of India or any part

thereof having a distinct language,

script or culture of its own shall have the

right to conserve the same.

The petitioners also seek protection

of the aforesaid right guaranteed

under the Constitution in order to

enforce the law regarding abuse and

misuse the custom, tradition and

culture of the Hindus.

(3). That Section 5 of the Hindu Marriage act

prescribes the conditions for a Hindu

Marriages:-

5. Conditions of a Hindu

Marriage.- A marriage may be

solemnized between two

Hindus, if the following

conditions are not fulfilled,

namely:


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(i) neither party has a spouse

living at the time of the

marriage;

(ii) At the time of marriage,

neither party,-

(a) is incapable of giving a valid

consent to it in consequence

of unsoundness of mind; or

(b) though capable of giving a

valid consent has been

suffering from mental

disorder of such a kind or to

such an extent as to be unfit

for marriage and the

procreation of children or

(c) has been subject to

recurrent attacks of insanity

or epilepsy;

(iii) the bridegroom has

completed the age of

twenty-one years and the

bride the age of eighteen


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years at the time of the

marriage;

(iv) the parties are not within the

degrees of prohibited

relationship unless the

custom or usage governing

each of them permits of a

marriage between the two:

(v) the parties are not spindas of

each other, unless the

custom or usage governing

each of them permits of a

marriage between the two.

(4) The only safeguards for protection of

violation of the marriages are provided

in sections 11 and 12 under the heads

Void and Voidable Marriages, as under:-

11. VOID MARRIAGES.- Any

marriage solemnized after the

commencement of this Act

shall be null and void and

may, on a petition presented

by either party thereto


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against the other party be so

declared by a decree of nullity

if it contravenes any one of

the conditions specified in

clauses (i)(iv) and (v) of

Section 5.

12. VOIDABLE MARRIAGES.

(1) Any marriage solemnized,

whether before or after the

commencement of this Act,

shall be voidable and may be

annulled by a decree of nullity

of any of the following

grounds, namely:

(a) that the marriage has not been

consummated owing to the

impotence of the respondent; or

(b) that the marriage is in contravention

of the condition specified in Clause (ii)

of Section 5; or

(c) that the consent

Thus, the Act prescribes void and

voidable marriage, but such


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marriages can only be declared by

way of decree on the petition

presented by either of the party

performing the marriages.

(5). The word Gotra has the same meaning as per

explanations of Spinda relationship as

mentioned in clause (f)(i) of Section 3 of

the Hindu Marriage Act as under:-

(f) (i) Sapinda relationship

with reference to any person

extends as far as the third

generation (inclusive) in the

line of ascent through the

mother, and the fifth

(inclusive) in the line of ascent

through the father, the line

being traced upwards in each

case from the person

concerned who is to be

counted as the first

generation;

(ii) two persons are said to be

sapindas of each other if one is a


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lineal ascendant of the other within

the limits of spinda relationship, or

if they have a common lineal

ascendant who is within the limits

of spinda relationship with

reference to each of them;

(g) degrees of prohibited

relationship- two persons are said

to be within the degrees of

prohibited relationship-

(i) if one is a lineal ascendant of

the other; or

(ii) if one was the wife or husband

of a lineal ascendant or descendant

of the other; or

(iii) if one was the wife of the

brother or of the fathers or

mothers brother or of the

grandfathers or grandmothers

brother or the other; or

(iv) if two are brother and sister,

uncle and niece, aunt and nephew,


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or children of brother and sister or

of two brothers or of two sisters.

Explanation:- For the purpose of

clauses (f) and(g), relationship

includes-

(i) relationship by half or uterine

blood as well as by full blood;

(ii) illegitimate blood

relationship as well as

legitimate;

(iii) relationship by adoption as

well as by blood

and all terms of relationship in

those clauses shall be constructed

accordingly.

7. That the Hindus religion is governed by

Vedas and Shastra and the all human

life is a Sanskar (ceremony). There are

16 Sanskar (ceremonies) in Hindus and

these are completed by a man in their

life such like birth, marriage and death

etc. The marriage is a ceremony and


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also a religions activity, generally the

marriage is decided by parents with the

consents of the bride. & bridegroom.

Generally this marriage is decided in the

same caste, the caste is the part of

Hindu Religion and the Gotras (Clans)

are sub-parts of the caste. There are

the bar in custom that the marriage are

not allowed in Same Gotra (Clan) in

Hindus. Some caste in Hindus not to

marriage in 4 Gotra (Clan) of their near

relatives such like- (1) Self, (2) Mother

(3) Grand Mother (4) Maternal Grand

Mother,(for both bride and bridegroom)

according to their custom and usages

and some castes are avoid 2 or 3

Gotras (Clans) such like, self Gotra

(clan), mothers Gotra (clan) and Grand

Mothers gotra ( Clan).There is another

aspect of rule of law, which is of equal

significance.

8. That the present petition is an effort made on

behalf of the petitioners for the


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enforcement of the fundamental rights

guaranteed in the Constitution of India

in exercise of the powers conferred on

this Honble Court for doing complete

justice in a cause. There is also a

customary rights and fundamentals

right aspect involved in the present

case.

9. That at the present day the source of Hindu

law are seven as According to Article 5

of Chapter 3 of Hindu Law namely- (i)

Sruti, (ii) Smriti (iii) Nibandhas or

Commentaries and Digest, (iv) Custom

or usage having the force of law, (v)

Justice, equity and good conscience, (vi)

Legal decision and (v) Legislation.

10. That the Custom or usage has the force

of law only if (i) it has been consciously

accepted as having the force of law; (ii)

it is ancient, (iii) certain, (iv) reasonable,

(v) not opposed to morality, public

policy or an express enactment, and (vi)


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is established by clear and unambiguous

evidence.

11. That in the present case the marriage in

the same Gotra (clan ) is prohibited in

the Hindu religion and this custom of

prohibition of marriage in same Gotra

(clan) is full filled all the condition of

customs or usage and this Custom has

the force of law because (i) Prohibition

of Same Gotra (clan) has been

consciously accepted as having the

force of law because in the modern or

earlier society, there are no example of

the same Gotra (clan) marriage in India.

(ii) Prohibition of Same Gotra (clan)

marriage is ancient and there are no

example found of the same Gotra (clan)

marriage in the Indian Society from time

of Arayas or Vedic age.(iii) Prohibition of

Same Gotra (clan) marriage is certain

not flexible at any time in present and

past age.( iv) Prohibition of Same Gotra

(clan) marriage is reasonable and not


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unreasonable and the society has been

accept the reasonability of this custom.

(v) the prohibition of same Gotra (clan)

marriage has not opposed to morality,

public policy or an express enactment

and also better for the heath of the

society and (vi)the prohibition of the

same Gotra (clan) marriage is

established by clear and unambiguous

evidence and for satisfaction and for

better evidence, the Honble Court may

appoint a Commission for enquiry

whether the Same Gotra Marriage is

prohibited or not in the society.

12. That the inbreeding is prohibited in the

Hindus religion and this prohibition is

also supported by the Science, Yoga

Guru Ramdeva, Satyarth Prakash

written by Swani Dayanand Sarswati.

13. Although severe inbreeding depression

in humans seems to be highly

uncommon and not widely known, there

have been several cases of apparent


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forms of inbreeding depression in

human populations. As with animals,

this phenomenon tends to occur in

isolated, rural populations that are cut

off to some degree from other areas of

civilization.

A notable example is the Vadoma tribe

of western Zimbabwe, many of whom

carry the trait of having only two toes

due to a small gene pool.(attached as

Annexure P/2 .)

14. That the inbreeding is also prohibited in the

Animals as according to the Gazette

notification of MINISTRY OF

ENVIRONMENT AND FORESTS , New

Delhi, dated 10th November, 2009

section 9 of this notification. (attached

here with as Annexure P/3 ) The

provision is reproduce as under:-

9. Acquisition and breeding of

animals
http://en.wikipedia.org/wiki/Vadomahttp://en.wikipedia.org/wiki/Zimbabwehttp://en.wikipedia.org/wiki/Vadomahttp://en.wikipedia.org/wiki/Zimbabwe


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(1) Every zoo shall endeavour

to keep and maintain animals

of various species in their

collection in such a sex ratio

that optimizes breeding and

helps in developing a self-

sustaining population of each

species.

(2) To safeguard against ill

effects of inbreeding on the

zoo population, the zoo shall

endeavour to introduce

unrelated animals to zoo stock

through exchange, loaning

and getting gifts of animals

from other zoos.

(3) No zoo shall acquire single

animal or genetically non-

viable number of animals

unless such acquisition is

necessary for pairing of single

animals or making the group

genetically/ biologically viable.


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to acquire mates for single

and unpaired animals on

priority basis and in the event

of any zoo failing to find a

mate for single and unpaired

animal within a period of six

months, the unpaired or

single animal shall be

transferred or exchanged or

given on breeding loan to any

other zoo in accordance with

the norms specified by the

Central Zoo Authority in this

regard.

(5) For the purpose of

transportation of animals from

one place to another, the

standards specified in this

regard by the Central Zoo

Authority shall be complied

with.


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(6) The Central Zoo Authority

shall assign the responsibility

of conservation breeding of

the identified critically

endangered species to

identified zoos having

technical capabilities and

housing facilities, preferably

close to the distribution range

of the species and every zoo

shall help the identified zoos

in implementing the breeding

programme.

(7) The surplus animals from

the breeding population shall

be made available to the

contributing zoo for display

purposes on the basis of

quality of housing and

infrastructural facilities

available with the zoos.

(8) Every zoo shall, with a

view to prevent inbreeding


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and the loss of

heterozygosity, the zoos shall

maintain the animal history

cards & stud and herd book

for the animals of endangered

species housed in the zoo and

put appropriate identification

marks and transfer or

exchange animals with other

zoos.


to limit the number of animals of

each species within the limits set

by the animal collection plan of the

zoo by implementing appropriate

population control measures like

segregation of sexes, vasectomy,

tubectomy and implantation of

pellets etc., with due consideration

of the health and welfare of the

animals and interest of their long

term survival.


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(10) Every zoo shall take effective

measures to safeguard against

escape of the zoo animals from the

premises of the zoo and in the

event of any accidental escape,

immediate action shall be taken to

retrieve the escaped animals.

(11) No zoo shall release any

captive animal into the wild except

in accordance with the norms

specified by the Central Zoo

Authority in this regard.

(12) Every zoo shall ensure that no

hybridization of species or races of

same species takes place in the

zoo.

Hence, the inbreeding may also

prohibit in the human society or in

Hindus.

15. That the now days the same Gotra( clan) has

become the burning question of the

state for Haryana and NCR and the

some newly young married couples


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have been murdered by their near

relatives in Jind, Jhajjar and other parts

of Haryana in 2009; because the same

Gotra marriage. The same Gotra( clan)

marriage is valid in the law and our

custom is prohibit the same Gotra( Clan)

marriage, hence the petitioners seeks

the amendment in the Hindu Marriage

Act for prevention of the Honour

Killings.

16. That the Honour Killing is the burning

question right now and many political

leaders have been muted in their views

and seeking the milk the sentiment

from honour killings.

17. That the need to amendment of the Hindu

Marriage Act through the medium of

public interest litigation invoking judicial

review may be frequent in India but is

unknown in other countries.

18. That the petitioner no. 1 are a social worker

and the president of OIPA, Haryana and

organizes many camps for social welfare


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and Petitioner No. 2 is also a social

worker.

19. That this Honble Court inter-alia the

following amongst other:

G R O U N D S

(a) Because the saving of custom right of

Hindus in the present situation is not

merely of a few individuals and the

powers conferred on this Honble Court

by the Constitution of India are ample to

remedy the present situation and to

ensure enforcement of the concept of the

saving the Custom right and Religious

Right of Indian Citizens.

(b) Because the petitioners is entitled to

protection of their fundamental

guaranteed under Article 25, 25(2) and

29(1) of the Constitution for protection of

culture, religion, tradition and customs,

so as to enforce the law regarding abuse

and misuse the custom, tradition and

culture of the Hindu Community, by


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contracting marriages which are

prohibited ones.

(c) Because the prohibition of Sagotra (clan)

marriage is the customary right of all the

Hindus.

(d) Because the Sagotra (Clan) marriage is

the custom and having the power equal

to law, hence the Honble Court may

amend the Fist schedule of the Hindu

Marriage Act.

(e) Because the inbreeding is harmful to the

society and in now age the environment

is polluted and the inbreeding decrease

the resistance power of the body.

(f) Because the inbreeding is prohibited in

the Animals but not prohibited in the

Human being as according to section 9

(sch-1) of the Ministry of Environment of

Forest.

(g) Because the Satyarth Prakash written by

the Swami Vivekanand also prohibit the

inbreeding and caution to us that the


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inbreeding increases so many disease in

our body.

(h) Because the Yoga Guru Ramdev is also

prohibited the same Gotra (clan)

Marriage.

(i) Because the Hindus have no legal right to

save the same gotra( Clan) marriage or

this custom by the any law till date.

(j) Because it is the provided by the Indian

Constitution that the Honble Court may

give the direction to the Respondent for

ensuring the wh of utmost public

importance that this matter is examined

thoroughly by this Honble court to

ensure that all government agencies,

entrusted with the duty to discharge their

functions and obligations in accordance

with Law, do so, bearing in mind

constantly the concept of equality

enshrined in the Constitution of India and

the basic tenet of rule of law:Be you ever

so high, the law is above you.


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(k) Because there is a serious human rights

aspect involved in the present case

because the prevailing corruption in

higher public offices, if permitted to

continue unchecked, has ultimately the

deleterious effect of eroding the Indian

polity.

(l) Because the present matter is not only of

national interest but also bears an

international significance and a question

mark on the international Hindus

customs.

(m) Because the matter also involves the

alarming problem of the disease in the

near future from the inbreeding in human

life.

(n) Because it is approved by the scientist

that the inbreeding is the harmful to the

human being.

(o) Because in the agriculture the farmers

used the hybrid seeds for better

production and in human being how can


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we give permission of inbreeding in the

science age.

20. That the Petitioners has not filed any other

petition before this Honble Court or any High

Court, seeking the same or similar relief.

21. That the Petitioners have no other equally

efficacious alternative remedy than to

approach this Honble Court by way of this

petition.

P R A Y E R

In the interest of justice and for the facts and

circumstances stated herein above it is most

respectfully prayed that this Honble Court may

graciously be pleased to:

(I) Issue an appropriate order or direction

directing the respondent for saving the

custom or usage of the Hindus and for the

amendment of THE FIRST SCHEDULE [ DEGREE

OF PROHIBITED RELATIONSHIP] of Hindu

Marriage Act and add the SAGOTRA (Clan) in

the Degree of Prohibited Relationship in the


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Schedule I) so as to enforce the law, prohibiting

the marriages among girls and boys of the same

gotra (clan), and making a provision for

declaring as nonest or annulling such marriages

by any body other than parties to such

marriages, because the medical science has

proved time and again that marriages among

close relatives might lead to genetic disorders

in the offspring, and allowing such marriages to

exist would play havoc with the fabric of the

Society.

AND/OR

i. to issue any other appropriate writ,

order or direction which this

Honble Court may deem fit and

proper under the peculiar facts and

circumstances of the case, in

favour of the Hindus.

ii. Pass an order for appointment of a

Commission of retired Justice of the

Honble High Court or Supreme

Court India for the inquiry of


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Hindus in the North Region of India

particularly in the State of

Haryana, Rajasthan, Delhi, Uttar

Pradesh, Bihar, Madhaya Pradesh,

Gujrat etc. whether the marriages

be solemnized in the same

GOTRA (Clan) or not in the Caste

of AHIR (YADAV) JAT, RAJPUT,

GURJAR, BRAHMIN, BANIYA, NAI

(SEN), BHUMIHAR, KAYASTH,

HARIJAN, DHOUBI, KURMI,etc. as

according to their customs and

usage and also for appointment of

a penal of Specialist/ Competent

Doctors to research whether the

inbreeding is dangers/harmful or

not to the society.

iii. Serving of advance notices of the

writ petition upon the respondent

may kindly be dispensed with.

iv. Writ petition of the petitioners may

kindly be allowed throughout with

costs, in the interest of justice.


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v. It is further prayed that during the

pendency of the petition in this

Honble Court, such interim orders

which this Honble Court may deem

fit and proper in the facts and

circumstances in the facts and

circumstances of the case may

kindly be granted;

Petitioners

Filed by

Drawn by: Rajender Yadav

(

)

Drawn on : Advocate for the

Petitioners

Filed on : -06-2010


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IN THE SUPREME COURT OF

INDIA

[CIVIL WRIT JURISDICTION]

WRIT PETITION (CIVIL) No. ___________of 2010

IN THE MATTER OF:

Sh. Naresh Kadyan & Anr.

Petitioners

//Versus//

Union of India

Respondent

AFFIDAVIT

I, Naresh Kadyan S/o Sh. Omprakash Kadyan, Age-

49 years, C-38, Rose Apartment, Prashant Vihar,

Sector-14, Rohini, Delhi state on solemn

affirmation as follows:

1. That I am the petitioners in this above Writ

Petition am well conversant with the facts and

circumstances of the case and as such fully

competent to swear this affidavit.


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2. That the contents of the accompanying Writ

petition containing pages ____ to _____ from

paras 1 to _______and Synopsis, List of dates at

pages A to _____ this affidavit have been drafted

under my instructions. The contents thereof

have been read and explained to me in

vernacular and I have fully understood thesame. The facts stated therein are true to the

best of my knowledge and based on record. The

same may be read as a part of this para.

3. That the Annexures P/1 to P/ are true copies of

their respective originals.

DEPONENT

I, the deponent above named do hereby verify

that the contents of the above affidavitare true tothe best of my knowledge and nothing is false and

nothing material has been concealed there from.

Verified at on this day

of June, 2010

DEPONENT


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VAKALATNAMAIN THE SUPREME COURT OF INDIA

[CIVIL WRIT JURISDICTION]WRIT PETITION (CIVIL) No. ___________of 2010

IN THE MATTER OF:Sh. Naresh Kadyan & Anr. Petitioners

//Versus//Union of India RespondentKnow All to whom these present shall come that I, NareshKadyan S/o Sh. Omprakash Kadyan, Age-49 years, C-38,Rose Apartment, Prashant Vihar, Sector-14, Rohini, Delhi,

the petitioners No. 1 above named, do hereby appoint andretain

, ADVOCATE,to act and appear for me/us in the Petition and on my/ourbehalf to conduct and Prosecute the same and allproceedings that may be taken in respect of anyapplication connected with the same or any decree ororder passed therein, including proceeding in taxation andapplication for Review, to file and obtain return ofdocuments and to deposit and receive money on my/our

behalf in the above Petition/Appeal and to represent tome/us and to take all necessary steps on my/our behalf inthe above matter. I/We agree to ratify all acts done by theaforesaid Advocate in persuance of this authority. I/Wefurther authorise him to engage any other Advocate(s) onmy/our behalf or to enter into agreement or to agree forarbitration.

Date this the th day of June, 2010

Accepted

Petitioners(s)______________________________________________________ MEMO OF APPEARANCE

The RegistrarSupreme Court of IndiaNew Delhi.Sir,

Please enter my appearance for the abovementionedPetitioners(s) in the case.

Thanking you,

Yours faithfully

NEW DELHI :Dated : ( )

Advocate for thePetitioners(s)


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Draft petition for Supreme Court of India : Amend Hindu Marriage Act, 1955 - Naresh Kadyan

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Transcript of Draft petition for Supreme Court of India : Amend Hindu Marriage Act, 1955 - Naresh Kadyan