1st SURANA & SURANA AND ARMY INSTITUTE OF LAW

NATIONAL FAMILY LAW MOOT COURT COMPETITION 2020

Civil Suit No. ___/2019

Simran……………………………………………………………………Petitioner

v.

Raman………………………………………………………………… Respondent

Most respectfully submitted before

The Honorable District Court

MEMORANDUM ON THE BEHALF OF THE RESPONDENT

DRAWN AND FILED BY THE COUNSELS FOR RESPONDENT

 ARGUMENTS ADVANCED

1) Whether Petitioner is Entitled for Divorce on the ground of Cruelty?

It is humbly submitted before the Hon’ble Court that the Petitioner is not entitled for divorce on

the ground of cruelty under Section 13 (1) (i-a) of the Hindu Marriage Act, 1955.

According to Section 13 (1) (i-a) of the Hindu Marriage Act, 1955: -

“ Divorce. -

(1) Any marriage solemnized whether before or after the commencement of this Act, may, on a

petition by either the husband or the wife, be dissolved by a decree of divorce on the ground that

the other party-

(i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty;”1

In the case of A. Jayachandra v. Aneel Kaur, 2 the Hon’ble Supreme Court observed that:

“The expression ‘cruelty’ has not been defined in the Act. Cruelty can be physical and mental.

Cruelty which is a ground for dissolution may be defined as wilful and unjustifiable conduct of

such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a

reasonable apprehension of such a danger.”

1
Section 13, Hindu Marriage Act, 1955, No. 25 of 1955, Acts of Parliament.

2
A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22.
In a catena of cases, certain parameters have been laid down by the court for deciding the

granting of divorce to the petitioner. 3

In the case of Keshavrao v. Nisha,4 the court held that cruelty under the said section is a conduct

of such type that the petitioner cannot be reasonably expected to live with the respondent.

In the case of Suman Singh v. Sanjay Singh,5 the court held that:

“In the first place, no decree for divorce on one isolated incident can be passed. Secondly, there

could be myriad reasons for causing such isolated incident. … Both should, therefore, give quite

burial to their past deeds/acts and bitter experiences and start living together and see that their

daughters are well settled in their respective lives. … In our view, the incidents which occurred

prior to 2006 could not be relied on to prove the instances of cruelty because they were deemed

to have been condoned by the acts of the parties. … Also, such alleged acts of cruelty should

have occurred close to the date of filing the divorce suit, the court said in a recent order.”

In the case of Dastane v. Dastane,6 the Supreme Court held that inquiry in any case covered by

the provisions of the Act had to be, whether the conduct charged as cruelty is of such a character

as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or

injurious for the petitioner to live with the respondent. Spouses are undoubtedly supposed and

expected to conduct their joint venture as best as they might, but it is no function of a court

inquiring into a charge of cruelty to philosophise on the modalities of married life. Someone may

3
Dastane v. Dastane, AIR 1975 SC 1534; Nirmala Jagesha v, Manohar Jagesha, AIR 1991 Bom 259; Russell v.

Russell, (1897) AC 395; Kallan v. Kallan, AIR 1933 Lah 728.

4
Keshavrao v. Nisha, AIR 1984 Bom 413.

5
Suman Singh v. Sanjay Singh, (2017) 4 SCC 85.

6
Dastane v. Dastane, AIR 1975 SC 1534.
want to keep late hours to finish the day's work and someone may want to get up early for a

morning round of golf. The Court cannot apply to the habits or hobbies of these the test whether

a reasonable man situated similarly will behave in a similar fashion.

What is required is that the petitioner must prove that the respondent has treated the former with

such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be

harmful or injurious for the petitioner to live with the respondent.7

For an act to amount to cruelty, the acts must be of a more serious nature than mere wear and

tear of married life,8 and in the present case, the incidents between the petitioner and the

respondent were not of such a character as to cause danger to the life, limb or health (bodily or

mental) or to cause reasonable apprehension of such a danger.

There can never be any strait-jacket formula or fixed parameters for determining mental cruelty

in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to

evaluate it on its peculiar facts and circumstances while taking aforementioned factors in

consideration.9

In the case of Naveen Kohli v. Neelu Kohli, 10 it was held that cruelty in fact must obviously

depend on the particular circumstances of a case. The passing of a decree on this ground requires

the matrimonial offence to be established so to conclude that cruelty has resulted into a situation

where the spouses can no longer live together.

7
Rajan Ravankar v. Shobha, AIR 1995 Bom 246.

8
Chaitali Dey v. Badal Kumar Dey, AIR 2005 Jhar 83; Sir Dinshaw Fardunji Mulla, Hindu Law, 921, 922 (22 nd Ed.,

2016).
9
Vimla Mehra v. K.S. Mehra, (2009) 158 DLT 136.

10
Naveen Kohli v. Neelu Kohli, AIR 2006 SC 1675.
The conduct alleged must be adjudged up to a point by reference to the petitioner’s capacity or

incapacity for endurance, insofar as that is or ought to be known to the respondent. 11 It is also

necessary to weigh all the incidents and quarrels between the parties, keeping in view the impact

of the personality and the conduct of one spouse on the mind of the other.12

Isolated acts of assaults committed on the spur of the moment and on some real or fancied

provocation may not amount to cruel treatment. 13 This can be only determined by keeping in

view the physical and mental condition of the parties, their age, environment, standard of culture

and status in life.14

In the case of Rani Bai Verma v. Chandrashekhar Verma,15 the court following the principle laid

down in the case of Shobha Rani v. Madhukar Reddy16 said that to constitute cruelty the conduct

complained of should be ‘grave and weighty’ so as to come to the conclusion that the petitioner

spouse cannot be reasonably expected to live with the other spouse. It must be something more

serious than ‘ordinary wear and tear of married life’.

If the conduct were such that it would amount to cruelty only if aggravated by intention to hurt,

the spouse who could not form such an intention would not be held to have treated to have

treated the other spouse with cruelty.17

11
Mackenzie v. Mackenzie, (1895) AC 384, p.405; Gollins v. Gollins, (1962) 3 All ER 897.

12
King v. King, (1953) AC 124, p. 130; N. Sreepadachar v. Vasantha Bai, AIR 1970 Mys 232; P.L Sayal v. Sarla

Rani, AIR 1961 Punj 125.

13
Sir Dinshaw Fardunji Mulla, Hindu Law, 916 (22nd Ed., 2016).

14
Kameshwaar Rao v. Jabilli, AIR 2002 SC 576; Vishwanath Agarwal v. Sarla Agarwal, AIR 2012 SC 2586.

15
Rani Bai Verma v. Chandrashekhar Verma, AIR 2011 Chh 93.

16
Shobha Rani v. Madhukar Reddy, (1998) 1 SCC 105.

17
Sir Dinshaw Fardunji Mulla, Hindu Law, 933 (22nd Ed., 2016).
In the present case, there was a lot of work pressure on the respondent. The respondent began to

express his frustration vocally and physically which led to loud shouting episodes between them.

The petitioner tried to support the respondent and sooth the frustration of the respondent and

dealt with him very calmly and positively. The respondent had an overburdened work life, but

the petitioner continued to live with the respondent. The respondent overheard an intimate

conversation of the petitioner with Suraj which infuriated the respondent, and this resulted in an

abusive and violent outburst against the petitioner.

But these acts would not amount to a conduct where the petitioner cannot be reasonably expected

to live with the respondent. Neither these acts would amount to conduct of such character as to

cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable

apprehension of such a danger. Therefore, in the present case, the acts of the respondent cannot

be said to be such conduct which is necessary to amount that the respondent has treated the

petitioner with cruelty for the purpose of Section 13 of the Hindu Marriage Act, 1955.

Hence, the petitioner is not entitled for divorce on the ground of cruelty under Section 13 of the

Hindu Marriage Act, 1955.

 2) Whether Petitioner is entitled for Maintenance and Custody of her daughters?

It is humbly submitted that the Petitioner is not entitled for Maintenance from the Respondent

and the Custody of their daughters.

a) Maintenance: -

It is humbly submitted that the petitioner is not entitled to maintenance from the respondent

under Sec 25 of the Hindu Marriage Act, 1955.

According to Section 25(1) of the HMA, 1955:

“ Permanent alimony and maintenance . -

(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at

any time subsequent thereto, on application made to it for the purpose by either the wife or the

husband, as the case may be, order that the respondent shall pay to the applicant for her or his

maintenance and support such gross sum or such monthly or periodical sum for a term not

exceeding the life of the applicant as, having regard to the respondent's own income and other

property, if any, the income and other property of the applicant [the conduct of the parties and

other circumstances of the case], it may seem to the court to be just, and any such payment may

be secured, if necessary, by a charge on the immovable property of the respondent.”18

According to Section 18(2) of Hindu Adoptions and Maintenance Act, 1956:

18
Section 25, Hindu Marriage Act, 1955, No. 25 of 1955, Acts of Parliament.
“ Maintenance of wife. —

(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her

claim to maintenance. —

(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her

mind that it will be harmful or injurious to live with her husband;”19

In the present case, the petitioner was not treated with such a cruelty as to cause a reasonable

apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to

live with the respondent.

According to Section 125 of the Code of Criminal Procedure, 1973:

“ 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,”20

In the present case, the petitioner is doing a job which was enough to sustain survival of the

petitioner and their daughter. Also, petitioner and her daughter were able to engage in leisure and

social engagements.

In Dharambir v. Bimlesh Kumari,21 the court denied relief to the appellant and the sole reason

was that the appellant failed to prove that the respondent had a job and sufficient income to

sustain herself after a decree of divorce was granted. But, in the present case, the petitioner has

19
Section 18, Hindu Adoptions and Maintenance Act, 1956, No.78 of 1956, Acts of Parliament.

20
Section 125, Code of Criminal Procedure, 1973, No. 2 of 1973, Acts of Parliament.

21
Dharambir v. Bimlesh Kumari, (1985) 8 DRJ 26: (1985) 1 HLR 187.
sufficient income to sustain herself along with her daughter and also, she is engaged in leisure

and social engagements. Therefore, the petitioner, in the present case, has sufficient means to

sustain herself and thus, she is not entitled to maintenance from the respondent under Sec 25 of

the Hindu Marriage Act, 1955.

In Pradeep Kumar Kapoor v. Shailja Kapoor,22 it was held that while fixing permanent alimony

and maintenance under Section 25 of the Act, the court is expected to make detailed inquiry and

has to take into account not only the income but other properties of the parties, their conduct and

other circumstances of the case that the court might consider relevant. In the present case, the

petitioner has appropriate qualifications and a job which pays her sufficiently in order to

maintain herself.

Moreover, in the present case, the respondent has filed a petition for restitution of conjugal rights

under Section 9 of the Hindu Marriage Act, 1955 and wants to continue their marriage and raise

their children together.

Hence, the petitioner is not entitled to maintenance from the respondent under Sec 25 of the

Hindu Marriage Act, 1955.

b) Custody: -

It is humbly submitted that the petitioner is not entitled to custody of their children under the

Hindu Minority and Guardianship Act, 1956.

According to Section 6(a) of the Hindu Minority and Guardianship Act, 1956: -

22
Pradeep Kumar Kapoor v. Shailja Kapoor, (1988) 15 DRJ 375: AIR 1989 Del 10.
“ Natural guardians of a Hindu minor. -

The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of

the minor’s property (excluding his or her undivided interest in joint family property), are—

(a) in the case of a boy or an unmarried girl—the father, and after him, the mother: provided

that the custody of a minor who has not completed the age of five years shall ordinarily be with

the mother.”23

In a marital tie, separation of the spouses could have a disastrous effect on children and that is

why in a matrimonial dispute of custody of children, the paramount consideration is that of

welfare of the child.24 The welfare of the child is of paramount importance in matters relating to

child custody and this Court has held that welfare of the child may have a primacy even over

statutory provisions.25

The court may conclude that the child should be returned to his or her native country or the

jurisdiction from which he or she has been removed.26

In the case of V. Ravichandran v. Union of India,27 it was held that:

“It would be better for the child that those merits should be investigated in a court in his native

country. …Anyone who has had experience of the exercise of this delicate jurisdiction knows

what complications can result from a child developing roots in new soil, and what conflicts this

can occasion in the child’s own life. Such roots can grow rapidly. An order that the child should
23
Section 6, The Hindu Minority and Guardianship Act, 1956, No. 32 of 1956, Acts of Parliament.

24
Shaleen Kabra v. Shiwani Kabra, (2012) 5 SCC 355.

25
Mausami Moitra Ganguli vs. Jayant Ganguli, (2008) 7 SCC 673.

26
McKee v. McKee, (1950) SCR 700.

27
V. Ravichandran v. Union of India, (2009) 9 SCC 111.
be returned forthwith to the country from which he has been removed in the expectation that any

dispute about his custody will be satisfactorily resolved in the courts of that country may well be

regarded as being in the best interests of the child …if the child gets divorced from the social

customs and contacts to which he has been accustomed, or if its education in his native land is

interrupted and the child is being subjected to a foreign system of education, for these are all

acts which could psychologically disturb the child.

In a catena of cases, a similar principle has been upheld by the courts.28

Hence, the petitioner is not entitled to custody of their children under the Hindu Minority and

Guardianship Act, 1956.

28
Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479; Chandrakala Menon v. Vipin Menon, (1993) 2 SCC 6; Surya

Vadanan v. State of Tamil Nadu and Ors., (2015) 5 SCC 450.

 3) Whether Respondent is entitled for a decree of Restitution of Conjugal Rights?

It is humbly submitted before the Hon’ble Court that the Respondent is entitled for a decree of

Restitution of Conjugal Rights under Section 9 of the Hindu Marriage Act, 1955.

According to the Section 9 of the Hindu Marriage Act, 1955: -

“ 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 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.”29

The court has held in various cases that the following situations will amount to a reasonable

excuse to act as a defence in this area:

1. A ground for relief in any matrimonial cause, or

2. A matrimonial misconduct not amounting to a ground of a matrimonial cause, if

sufficiently weighty and grave, or

29
Section 9, Hindu Marriage Act, 1955, No. 25 of 1955, Acts of Parliament.
 3. Such an act, omission or conduct which makes it impossible for the petitioner to live with

the respondent.30

In the present case, the petitioner has withdrawn from the society of the respondent without any

reasonable ground as the petitioner withdrew from the society of the respondent with a ground

which is neither a ground for relief in any matrimonial cause, nor it contains any matrimonial

misconduct not amounting to a ground of a matrimonial cause, if sufficiently weighty and grave,

nor it constitutes such an act, omission or conduct which makes it impossible for the petitioner to

live with the respondent.

In the case of Jagdish Lal v. Shyama Madan,31 the court held that what would be reasonable

excuse cannot be reduced to formulae and would vary with time and circumstances and will have

to be determined by the court in each individual case in the light of features peculiar to it.

Therefore, in the present case, the petitioner had no reasonable excuse to withdraw from the

society of the respondent, as stated above.

In the case of Patel Dharamshi Premji v. Bai Sakar Kanji,32 the wife when failed to establish

cruelty, a decree for restitution of conjugal rights was passed by the High Court.

The person who files a petition for Restitution of Conjugal Rights must have a bona fide desire

to resume matrimonial cohabitation and to render the rights and duties of matrimonial life. The

person who has filed a petition for Restitution of Conjugal Rights is serious in this sense can

30
Paluck Sharma, Restitution of Conjugal Right: A Comparative Study Among Indian Personal Laws, Indian

National Bar Association, available at: https://www.indianbarassociation.org/restitution-of-conjugal-right-a-

comparative-study-among-indian-personal-laws/, visited on 25/12/19, 9:00 PM

31
Jagdish Lal v. Shyama Madan, AIR 1966 All 150.

32
Patel Dharamshi Premji vs Bai Sakar Kanji, AIR 1968 Guj 150.
seek the relief.33 In the present case, the Respondent wants to stay married with the Petitioner and

raise their children together.

Hence, the Respondent is entitled for a decree of Restitution of Conjugal Rights under Section 9

of the Hindu Marriage Act, 1955.

33
Syal v. Syal, AIR 1968 P&H 489; Jogindra Kaur v. Shivcharan Singh, AIR 1965 J&K 95; Shyamal Samaddar v.

Sampa Samaddar, AIR 2012 Cal 220.

 4) Whether the order of the US court passed in favour of Respondent regarding the

custody of his daughters is enforceable in India?

It is humbly submitted before the Hon’ble court that order of the US court passed in favour of

Raman regarding the custody of his daughter is enforceable in India.

The petitioner without the consent of the respondent has removed the younger daughter i.e.

Prabha from her natural environment and also removed from the surrounding of her father and

her elder sister, who in turn has been affected by this and has been depressed ever since

departure of her younger sibling. The petitioner has taken a pernicious step and that has been the

cause of hurt to the father and foremost the elder daughter, Riya. For the welfare of the children

it is contested that the younger daughter must return to her natural environment, i.e. New York

and to her elder sister.

In the case of Dr. V. Ravichandran v. Union of India it was held that:

“ Merely because the child has been brought to India, the custody issue concerning the minor

child does not deserve to be gone into by the courts in India and it would be in accord with the

principle of comity as well as on the facts, to return the child back to USA from where he has

been removed, and enable the parties to establish their case before the courts in the native state

of child i.e. USA, for modification of existing custody orders by the court”. In the case Harben v.

Harben it was said that “It has always been the practice of this Court to ensure that a parent

should not gain advantage by the use of fraud or force in relation to the kidnapping of children

from the care of the other spouse ...”.

In the case, H. (infants), In re case it was said that “… The sudden and unauthorised removal of

children from one country to another is far too frequent nowadays, and, as it seems to me, it is

the duty of all courts in all countries to do all they can to ensure that the wrongdoer does not

gain an advantage by his wrongdoing”, Willmer, L.J. went on to hold “The Judge took the view

and I think it was the right view that in a case such as the present, that he ought to send these

boys back to their own country to be dealt with by the court of their own country, provided that

he was satisfied that they would come to no harm if the father took them back to the United

States; and that this was so, even though it might subsequently turn out, after all the merits of the

case had been thoroughly thrashed out in the court in New York, that it would perhaps be better

after all for the boys to reside in England and see little or nothing of their father… The courts in

all countries ought, as I see it, to be careful not to do anything to encourage this tendency.

[This] substitution of self-help for due process of law in this field can only harm the interests of

wards generally, and a Judge should, as I see it, pay regard to the orders of the proper foreign

court unless he is satisfied beyond reasonable doubt that to do so would inflict serious harm on

the child.”

The Supreme court of India in Surinder Kaur Sandhu v. Harbax Singh Sandhu, Y.V.

Chandrachud, C.J. (as he then was) speaking for the Court held thus “… The modern theory of

conflict of laws recognises and, in any event, prefers the jurisdiction of the State which has the

most intimate contact with the issues arising in the case. Jurisdiction is not attracted by the

operation or creation of fortuitous circumstances such as the circumstance as to where the child,

whose custody is in issue, is brought or for the time being lodged. To allow the assumption of

jurisdiction by another State in such circumstances will only result in encouraging forum

shopping. Ordinarily, jurisdiction must follow upon functional lines. That is to say, for example,
that in matters relating to matrimony and custody, the law of that place must govern which has

the closest concern with the well-being of the spouses and the welfare of the offspring’s of the

marriage. The spouses in this case had made England their home where this boy was born to

them. The father cannot deprive the English court of its jurisdiction to decide upon his custody

by removing him to India, not in the normal movement of the matrimonial home but, by an act

which was gravely detrimental to the peace of that home. The fact that the matrimonial home of

the spouses was in England, establishes sufficient contacts or ties with that State in order to

make it reasonable and just for the courts of that State to assume jurisdiction to enforce

obligations which were incurred therein by the spouses. (See International Shoe Co. v. State of

Washington which was not a matrimonial case but which is regarded as the fountainhead of the

subsequent developments of jurisdictional issues like the one involved in the instant case.) It is

our duty and function to protect the wife against the burden of litigating in an inconvenient

forum which she and her husband had left voluntarily in order to make their living in England,

where they gave birth to this unfortunate boy.”

In V. Ravi Chandran v. Union of India, (2010) it was held that :

“While dealing with a case of custody of a child removed by a parent from one country to

another in contravention of the orders of the court where the parties had set up their

matrimonial home, the court in the country to which the child has been removed must first

consider the question whether the court could conduct an elaborate enquiry on the question of

custody or by dealing with the matter summarily order a parent to return custody of the child to

the country from which the child was removed and all aspects relating to the child's welfare be

investigated in a court in his own country. Should the court take a view that an elaborate

enquiry is necessary, obviously the court is bound to consider the welfare and happiness of the
child as the paramount consideration and go into all relevant aspects of welfare of the child

including stability and security, loving and understanding care and guidance and full

development of the child’s character, personality and talents…. In a case where the court

decides to exercise its jurisdiction summarily to return the child to his own country, keeping in

view the jurisdiction of the court in the native country which has the closest concern and the

most intimate contact with the issues arising in the case, the court may leave the aspects relating

to the welfare of the child to be investigated by the court in his own native country as that would

be in the best interests of the child.”

The indication given in McKee v. McKee that there may be cases in which it is proper for a court

in one jurisdiction to make an order directing that a child be returned to a foreign jurisdiction

without investigating the merits of the dispute relating to the care of the child on the ground that

such an order is in the best interests of the child has been explained in the case of Dhanwanti

Joshi v. Madhav Unde.

Buckley, L.J. held as follows in the case of L (Minors), In re case “… The action of one party

in kidnapping the child is doubtless one of the circumstances to be taken into account any may

be a circumstance of great weight; the weight to be attributed to it must depend on the

circumstances of the particular case. The court may conclude that notwithstanding the conduct

of the ‘kidnapper’…. may conclude that the child should be returned to his or her native country

or the jurisdiction from which he or she has been removed. Where a court makes a summary

order for the return of a child to a foreign country without investigating the merits, the same

principles, in my judgment, apply, but the decision must be justified on somewhat different

grounds.… The Judge may well be persuaded that it would be better for the child that those

merits should be investigated in a court in his native country than that he should spend in this
country the period which must necessarily elapse before all the evidence can be assembled for

adjudication here. Anyone who has had experience of the exercise of this delicate jurisdiction

knows what complications can result from a child developing roots in new soil, and what

conflicts this can occasion in the child's own life. Such roots can grow rapidly. An order that the

child should be returned forthwith to the country from which he has been removed in the

expectation that any dispute about his custody will be satisfactorily resolved in the courts of that

country may well be regarded as being in the best interests of the child.”

Thus, order passed by the New York court must be honoured and interim order must be passed

by the Hon’ble court that the child in the present case must be returned to the native country

where they belong and are citizen of, and more especially so having regard to the fact that they

have been kept in flagrant contempt of New York Court’s order. Keeping in mind the well-

established principle of welfare of child in the matter of custody of child and the principle of the

most intimate contact it can be concluded that returning the custody of child to the father is the

most appropriate step to be taken in the present matter.

Hence, order of the US court passed in favour of Raman regarding the custody of his daughter is

enforceable in India.