S.S.

JAIN SUBODH LAW COLLEGE

PUBLIC INTEREST LITIGATION

ACADEMIC SESSION: 2018-2019

Supervised by: Submitted by:

Mr. Rakesh kr. Jajotar Aishwarya Soni
(LL.B. I Year)
(Assistant Professor of Law) Enroll. No.

1
 CERTIFICATE

It is certified that the project work titled “Sheela Barse V. State Of

Maharasthra”, “PUBLIC INTEREST LITIGATION” submitted by
Miss Aishwarya Soni for the partial fulfillment of the LL.B. Degree
offered by S.S. Jain Subodh Law College during the academic year
2018-2019 is an original work carried out by the student under my
supervision, and this work has not formed the basis for the award of any
other degree, diploma or such other titles. The student has completed
research work in stipulated time and according to the matter prescribed
for the purpose.

Date:
Name of supervisor: Mr. Rakesh kr. Jajotar
Designation: Assistant Professor of Law
Institution: S.S. Jain Subodh Law College, Jaipur

Signature of the supervisor

2
 ACKNOWLEDGEMENT

Before we got into thick things, I would like to add few words of
appreciation for the people who have been a part of this Project write
from its inception. The writing of this project has been one of the
significant academic challenges I have faced and without the support,
patience and guidance of the people involved in this task would not have
been completed. It is to them I owe my deepest gratitude.
It gives me immense pleasure in presenting this project report on
“PUBLIC INTEREST LITIGATION”. It has been privilege to have a
team of project. The success of this project is a result of sheer hard work
and determination put in by me with the help of my project guide and
takes the opportunity to express my gratitude to Mr. Rakesh kr. Jajotar
[Assistant Professor] of S.S. Jain Subodh Law College, Mansarover,
Jaipur, who played a significant role in my project. I hereby, take this
opportunity to add a special note of thanks for the Principal Dr. Alpana
Sharma and convener Mr. Jitendra Patwa constant encouragement at
every step.
I also feel heartiest sense of obligation to my library staff members and
seniors who helped me in collection of data and resource material and
also in its processing as well as in drafting manuscript. The project is
dedicated to all those people, who helped me while doing this project.

3
INDEX

PART TITLE PG. NO.

A Introduction to Public Interest Litigation 5 To 30

B Leading Case 31 To 39
(Sheela Barse V. State Of Maharasthra)

C Memorial for moot court 40 To 64

(Respondent)

D Memorial for moot court 65 To 87

(Petitioner)

E Court Visit Cases 88 To 91

F Bibliography 92.

4
PART – A

INTRODUCTION
TO
PUBLIC INTEREST
LITIGATION

5
Public Interest Litigation: - Its origin and meaning

In Indian law, PIL means litigation for the protection of public interest.
It is litigation introduced in a court of law, not by the aggrieved party but
by the court itself or by any other private party. It is not necessary, for
the exercise of the court's jurisdiction, that the person who is the victim
of the violation of his or her right should personally approach the court.
Public Interest Litigation is the power given to the public by courts
through judicial activism.

Such cases may occur when the victim does not have the necessary
resources to commence litigation or his freedom to move court has been
suppressed or encroached upon. The court can itself take cognizance of
the matter and proceed suo motu or cases can commence on the petition
of any public-spirited individual.

"Public Interest Litigation", in simple words, means, litigation filed in

a court of law, for the protection of "Public Interest", such as pollution,
Terrorism, Road safety, constructional hazards etc.

Public interest litigation is not defined in any statute or in any act. It has
been interpreted by judges to consider the intent of public at large.
Although, the main and only focus of such litigation is only "Public

6
Interest" there are various areas where Public Interest Litigation can be
filed.

For example,
- Violation of basic human rights of the poor

- Content or conduct of government policy

- Compel municipal authorities to perform a public duty.

- Violation of religious rights or other basic fundamental rights

In Black’s law Dictionary1, “Public Interest” is defined as follows:

“Public Interest is something in which the public, the community at
large has something pecuniary interest, or some interest by which their
legal rights or liabilities are affected. It does not mean anything so
narrow as mere curiosity, or as the interest of the particular localities,
which may be affected by the matters in question. Interest shared by the
citizens generally in affair of local, State or national government...”

It was vehemently contended that this would not be regarded as public

interest litigation and, the petitioners had no locus standi to file the
present petitions. We are unable to agree to this submission.
Environment, more than anything else, is and should be a concern for

7
all. It is one thing which is available free for all the inhabitants of an
area and it is essential that this environment is maintained for the
purposes of ensuring a healthy life. This issue is no longer res Integra.
The Supreme Court in Subhash Kumar v State of Bihar2 observed that:
“…Right to live is a fundamental right under article 21 of the
constitution and it includes the right of enjoyment of pollution - free
water and air for full enjoyment of life. If anything endangers or
impairs that quality of life in derogation of laws, a citizen has a right to
have recourse to Article 32 of constitution of India for removing the
pollution of water or air which may be detrimental to quality of life...”

Judiciary, being the sentinel of constitutional statutory rights of citizens

has a special role to play in the constitutional scheme. It can review
legislation and administrative actions or decisions on the anvil of
constitutional law. For the enforcement of fundamental rights one has to
move the Supreme Court or the High Courts directly by invoking Writ
Jurisdiction of these courts. But the high cost and complicated procedure
involved in litigation, however, makes equal access to jurisdiction in
mere slogan in respect of millions of destitute and underprivileged
masses stricken by poverty, illiteracy and ignorance. The Supreme Court
of India, pioneered the Public Interest Litigation (PIL) thereby throwing
upon the portals of courts to the common man.

1 Black's Law Dictionary 6th ed. (W est Publishing, 1990) ISBN 90-6544-631-1
2 1991 AIR 420, 1991 SCR (1) 5

8
Till 1960s and seventies, the concept of litigation in India was still in its
rudimentary form and was seen as a private pursuit for the vindication of
private vested interests. Litigation in those days consisted mainly of
some action initiated and continued by certain individuals, usually,
addressing their own grievances/problems. .

Thus, the initiation and continuance of litigation was the prerogative of

the injured person or the aggrieved party. Even this was greatly limited
by the resources available with those individuals. There were very little
organized efforts or attempts to take up wider issues that affected classes
of consumers or the general public at large. However, these entire
scenario changed during Eighties with the Supreme Court of India led
the concept of public interest litigation (PIL). The Supreme Court of
India gave all individuals in the country and the newly formed consumer
groups or social action groups, an easier access to the law and
introduced in their work a broad public interest perspective.

9
Historical Background and Origin of Public Interest
Litigation

The initial inspiration for PIL came from the American concept of
Public Interest Litigation and the class actions of the 1960’s. 3 In U.S.A.
it is called the ‘Public Interest Law’ whereas in the Indian Subcontinent
it is known as ‘Public Interest Litigation’. In fact, it is the U.S.A., the
real pioneer in the path of PIL which influenced some PIL activist of
some countries of the world to work for PIL in 1960s and 70s.4
Commentators frequently date the emergence of Public Law Litigation
(in USA Public Interest Litigation is named as Public Law Litigation) in
the U.S.A. to the celebrated campaign that resulted in the decision in
Brown V. Board of Education5, in which U.S. Supreme Court declared
unconstitutional a state's segregation of public school students by race.
Brown includes many procedural features since associated with Public
Law Litigation: the defendant was a public institution; the claimants
comprised a self-constituted group with membership that changed over
time; relief was prospective, seeking to reform future action by
government agents; and the judge played a leadership role

3
Jurist’s India Correspondents Pradip K. Ghosh, Senior Advocate, Calcutta, and Pawan Duggal, Advocate, (President of
Cyberlaws.net, New Delhi) Public Interest Litigation.

4
Sarat & Scheingold, ‘Cause Lawyering and the Reproduction of Professional Authority; An Introduction, in CAUSE
LAWYERING’: Political Comments and Professional Responsibilities (Sarat & Scheingold eds., 1998).

5
Brown V. Board of Education,347 U.S. 483 (1954)

10
complemented by the parties effort at negotiation. The literature
distinguishes this form of litigation from the classical model of
adjudication, which is conceptualized as a private, bipolar dispute
marked by individual participation and the imposition of retrospective
relief involving a tight fit between right and remedy.6

Brown provided inspiration to a generation of lawyers who saw law as a

source of liberation as well as transformation for marginalized groups.
Courts, mostly federal but state as well, became involved in a broad
range of social issues, including voting and apportionment,
contraception and abortion, employment and housing discrimination,
environmental regulation, and prison conditions. Prison reform litigation
illustrates the extent of the judiciary’s involvement in Public Law cases:
after years of taking a “hands off” approach to prison conditions, courts
imposed remedial decrees in 48 of the nation’s 53 jurisdictions (the 50
states, the District of Columbia, Puerto Rico and the Virgin Island)7

6
Fuller, The Forms and Limits of Adjudication, 92 HARV. L. REV. 353 (1978).

7
Feely & Rubin, Judicial Policy Making and the Modern State: How the Courts Reformed America’s Prisons (1998).

11
Evolution of Public Interest Litigation

Prior to the 1980s, only the aggrieved party could approach the courts
for justice. However, post 1980s and after the emergency era, the apex
court decided to reach out to the people and hence it devised an
innovative way wherein a person or a civil society group could approach
the Supreme Court seeking legal remedies in cases where public interest
is at stake. And thus Public Interest Litigation was formed.

The Indian PIL is an improved version of PIL of USA. “Public interest

law is the name that has recently been given to efforts that provide legal
representation to previously unrepresented groups and interests. Such
efforts have been undertaken in the recognition that ordinary
marketplace for legal services fails to provide such services to
significant segments of the population and to significant interests. Such
groups and interests include the proper environmentalists, consumers,
racial and ethnic minorities and others.” 8

The emergency period (1975-1977) witnessed a somewhat colonial

nature of the Indian legal system. During the period of emergency, state
repression and governmental lawlessness was widespread. Thousands of
innocent people including political opponents were sent to jails and there
was complete deprivation of civil and political rights. The post
8 According to “Ford Foundation” of U.S.A.

12
emergency period provided an occasion for the judges of the Supreme
Court to openly disregard the impediments of Anglo-Saxon procedure in
providing access to justice to the poor. Notably, two Justices of the
Supreme Court, Justice V. R. Krishna Iyer and P. N. Bhagwati
recognized the possibility of providing access to justice to the poor and
exploited people by relaxing the rules of standing. In the post-emergency
period, when the political situations had changed, investigative
journalism also began to expose gory scenes of governmental
lawlessness, repression, custodial violence, drawing attention of lawyers,
judges, and social activists. PIL emerged as a result of an informal nexus
of pro-active judges, media persons and social activists. This trend
showed a stark difference between the traditional justice delivery system
and the modern informal justice system where the judiciary is
performing an administrative judicial role. PIL is a necessary rejection
of laissez faire notions of traditional jurisprudence.

The first reported case of PIL in 1979 focused on the inhuman

conditions of prisons and under trial prisoners. In Hussainara Khatoon v.
State of Bihar9, the PIL was filed by an advocate on the basis of the
news item published in the Indian Express, highlighting the plight of
thousands of under trial prisoners languishing in various jails in Bihar.
These proceeding led to the release of more than 40,000 under trial
prisoners. Right to speedy justice emerged as a basic fundamental right

9 1979 AIR 1369, 1979 SCR (3) 532

13
which had been denied to these prisoners. The same set pattern was
adopted in subsequent cases.

A new era of the PIL movement was heralded by Justice P.N. Bhagwati
in the case of S.P. Gupta v. Union of India10. In this case it was held that
“any member of the public or social action group acting bonafide” can
invoke the Writ Jurisdiction of the High Courts or the Supreme Court
seeking redressal against violation of legal or constitutional rights of
persons who due to social or economic or any other disability cannot
approach the Court. By this judgment PIL became a potent weapon for
the enforcement of “public duties” where executed in action or misdeed
resulted in public injury. And as a result any citizen of India or any
consumer groups or social action groups can now approach the apex
court of the country seeking legal remedies in all cases where the
interests of general public or a section of public are at stake.

In 1981 the case of Anil Yadav v. State of Bihar11, exposed the

brutalities of the Police. Newspaper report revealed that about 33
suspected criminals were blinded by the police in Bihar by putting the
acid into their eyes. Through interim orders Supreme Court directed the
State government to bring the blinded men to Delhi for medical
10 AIR 1982 SC 149

11 1982 AIR 1008, 1982 SCR (3) 533

14
treatment. It also ordered speedy prosecution of the guilty policemen.
The court also read right to free legal aid as a fundamental right of every
accused. Anil Yadav signaled the growth of social activism and
investigative litigation.

In Citizen for Democracy v. State of Assam12, the S. C. declared that the

handcuffs and other fetters shall not be forced upon a prisoner while
lodged in jail or while in transport or transit from one jail to another or
to the court or back.

Filing a PIL is not as cumbersome as any other legal case and there have
been instances when even letters and telegrams addressed to the court
have been taken up as PILs and heard by the court.

12 1995 (3) SCR 943

15
Important features of PIL

Through the mechanism of PIL, the courts seek to protect human rights
in the following ways:

1) By creating a new regime of human rights by expanding the

meaning of fundamental right to equality, life and personal liberty. In
this process, the right to speedy trial, free legal aid, dignity, means and
livelihood, education, housing, medical care, clean environment, right
against torture, sexual harassment, solitary confinement, bondage and
servitude, exploitation and so on emerge as human rights. These new re-
conceptualized rights provide legal resources to activate the courts for
their enforcement through PIL.

2) By democratization of access of justice. This is done by relaxing the

traditional rule of locus standi. Any public spirited citizen or social
action group can approach the court on behalf of the oppressed classes.
Courts attention can be drawn even by writing a letter or sending a
telegram. This has been called epistolary jurisdiction.

3) By fashioning new kinds of reliefs under the court’s writ

jurisdiction. For example, the court can award interim compensation to
the victims of governmental lawlessness. This stands in sharp contrast to
the Anglo-Saxon model of adjudication where interim relief is limited to
preserving the status quo pending final decision. The grant of

16
compensation in PIL matters does not preclude the aggrieved person
from bringing a civil suit for damages. In PIL cases the court can fashion
any relief to the victims.

4) By judicial monitoring of state institutions such as jails, women’s

protective homes, juvenile homes, mental asylums, and the like.
Through judicial invigilation, the court seeks gradual improvement in
their management and administration. This has been characterized as
creeping jurisdiction in which the court takes over the administration of
these institutions for protecting human rights.

5) By devising new techniques of fact-finding. In most of the cases the

court has appointed its own socio-legal commissions of inquiry or has
deputed its own official for investigation. Sometimes it has taken the
help of National Human Rights Commission or Central Bureau of
Investigation (CBI) or experts to inquire into human rights violations.
This may be called investigative litigation.

17
Subjects of Public Interest Litigation

Public Interest Litigation is meant for enforcement of fundamental and

other legal rights of the people who are poor, weak, ignorant of legal
redressal system or otherwise in a disadvantageous position, due to their
social or economic background. Such litigation can be initiated only for
redressal of a public injury, enforcement of a public duty or vindicating
interest of public nature. It is necessary that the petition is not filed for
personal gain or private motive or for other extraneous consideration and
is filed bona fide in public interest.

 Letter Petitions: Petitions received by post even though not in

public interest can be treated as writ petitions if so directed by the
Hon’ble Judge nominated for this purpose. Individual petitions
complaining harassment or torture or death in jail or by police,
complaints of atrocities on women such as harassment for dowry,
bride burning, rape, murder and kidnapping, complaints relating to
family pensions and complaints of refusal by police to register the
case can be registered as writ petitions, if so approved by the
concerned Hon’ble Judge. If deemed expedient, a report from the
concerned authority is called before placing the matter before the
Hon’ble Judge for directions. If so directed by the Hon’ble Judge,

18
 the letter is registered as a writ petition and is thereafter listed
before the Court for hearing.

Letter-petitions falling under the following categories alone will

ordinarily be entertained as Public Interest Litigation:-

1. Bonded Labour matters.

2. Neglected Children.

3. Non-payment of minimum wages to workers and exploitation of

casual workers and complaints of violation of Labour Laws (except in
individual cases).

4. Petitions from jails complaining of harassment, for (pre-mature

release) and seeking release after having completed 14 years in jail,
death in jail, transfer, release on personal bond, speedy trial as a
fundamental right.

5. Petitions against police for refusing to register a case, harassment by

police and death in police custody.

6. Petitions against atrocities on women, in particular harassment of

bride, bride-burning, rape, murder, kidnapping etc.

7. Petitions complaining of harassment or torture of villagers by co-

villagers or by police from persons belonging to Scheduled Caste and
Scheduled Tribes and economically backward classes.

19
8. Petitions pertaining to environmental pollution, disturbance of
ecological balance, drugs, food adulteration, maintenance of heritage
and culture, antiques, forest and wild life and other matters of public
importance.

9. Petitions from riot -victims.

10. Family Pension.

20
Cases falling under the following categories will not be
entertained as Public Interest Litigation and these may be
returned to the petitioners:

1. Landlord-Tenant matters.

2. Service matter and those pertaining to Pension and Gratuity.

3. Complaints against Central/ State Government Departments and Local

Bodies except those relating to item Nos. 1 to 10 above.

4. Admission to medical and other educational institution.

5. Petitions for early hearing of cases pending in High Courts and

Subordinate Courts.

21
Procedure for Filing Public Interest Litigation

(a) Filing
Public Interest Litigation petition is filed in the same manner, as a
writ petition is filed. If a PIL is filed in a High Court, then two (2)
copies of the petition have to be filed (for Supreme Court, then
(4)+(1)(i.e.5) sets) Also, an advance copy of the petition has to be
served on the each respondent, i.e. opposite party, and this proof of
service has to be affixed on the. Petition.

(b) The Procedure

Court fees of Rs. 50, per respondent (i.e. for each number of party,
court fees of Rs. 50) have to be affixed on the petition. Proceedings, in
the PIL commence and carry on in the same manner, as other cases.
However, in between the proceedings if the Judge feels that he may
appoint the commissioner, to inspect allegations like pollution being
caused, trees being cut, sewer problems, etc. After filing of replies, by
opposite party, or rejoinder by the petitioner, final hearing takes place,
and the judge gives his final decision.

(c) Where to file a PIL

22
Any public spirited citizen can move/approach the court for the public
cause (in the interests of the public or public welfare) by filing a
petition:

i. In Supreme Court under Art.32 of the Constitution;

ii. In High Court under Art.226 of the Constitution; and

iii. In the Court of Magistrate under Sec.133, Cr. P.C.

23
Against whom Public Interest Litigation can be filed

A Public Interest Litigation can be filed against a State/ Central Govt.,

Municipal Authorities, and not any private party. The definition of State
is the same as given under Article 12 of the Constitution and this
includes the Governmental and Parliament of India and the Government
and the Legislature of each of the States and all local or other authorities
within the territory of India or under the control of the Government of
India. According to Art.12, the term “State” includes the Government
and Parliament of India and the Government and the Legislatures of
each of the States and all local or other authorities within the territory of
India or under the control of the Government of India
.

Thus the authorities and instrumentalities specified under Art.12 are

• The Government and Parliament of India

• The Government and Legislature of each of the States

• All local authorities

• Other authorities within the territory of India or under the Government

of India.

24
In Electricity Board, Rajasthan v. Mohan Lal13, the Supreme Court held
that “other authorities would include all authorities created by the
Constitution of India or Statute on whom powers are conferred by law”.

However, “Private party” can be included in the PIL as “Respondent”,

after making concerned state authority, a party. For example- if there is a
Private factory in Delhi, which is causing pollution, then people living
nearly or any other person can file a PIL against the Government of
Delhi, Pollution Control Board, and against the private factory.
However, a PIL cannot be filed against the Private party alone.

13
1967 AIR 1857, 1967 SCR (3) 377

25
 Abuse of PIL

The development of PIL has also uncovered its pitfalls and drawbacks.
As a result, the apex court itself has been compelled to lay down certain
guidelines to govern the management and disposal of PILs. And the
abuse of PIL is also increasing along with its extended and multifaceted
use.

Of late, many of the PIL activists in the country have found the PIL as a
handy tool of harassment since frivolous cases could be filed without
investment of heavy court fees as required in private civil litigation and
deals could then be negotiated with the victims of stay orders obtained in
the so-called PILs.

The abuse of PIL has occurred mainly due three reasons:

 Publicity by Regular Litigants: This kind of abuse of PIL by

people, who are regular litigants, is what Justice Pasayat in the
case of Ashok Kumar Pandey v. State of West Bengal14 described
as “busybodies, meddlesome interlopers, wayfarers or officious
interveners who approach the court with extraneous motivation or
for glare of publicity.” Such persons file PILs regularly for any and
every issue that catches their eye just for the sake of garnering

14
(2004) 3 SCC 349

26
 media attention and their one minute of fame. Such casual filing of
PILs is a nuisance and defeats the purpose of “public interest.”
 Political Interest Litigation: Many a times it has been seen that
PILs are filed not for the public, but for purely political reasons by
political parties or their aides against another party. Justice
Bhagwati in this regard has said, “But we must be careful to see
that the member of the public, who approaches the court in cases
of this kind, is acting bona fide and not for personal gain or private
profit or political motivation or other oblique consideration. The
court must not allow its process to be abused by politicians and
others to delay legitimate administrative action or to gain a
political objective.”15 It is important that the judiciary be vigilant
and identifies such cases where public interest is not involved at all
but vested interest is the driving force.
 Persons with Vested Interests: There have been a number of
instances where businessmen, companies who filed tenders and
were unsuccessful, have resorted to PILs against their rivals in
order to further their own cause.

The PIL was designed to serve the purpose of protecting rights of the
public at large through vigilant action by public spirited persons and
swift justice. But the profound need of this tool has been plagued with
misuses by persons who have been filing PILs just for the publicity and
15
S.P. Gupta Versus Union of India; [(1981) Supp. SCC 87] (SCC page 219, paragraph 24)

27
those with vested political interests. The courts therefore, need to keep a
check on the cases being filed and ensure the bona fide interest of the
petitioner and the nature of the cause of action, in order to avoid
unnecessary litigations. The tools of judicial review, activism and action
in public interest through PILs are the tools to achieve complete
independence of justice machinery and due discharge of duties.

28
Difference between Public Interest Litigation and Private
Interest Litigation

Public Interest Litigation Private Interest Litigation

1. Public Interest Litigation is Private Interest Litigation is
attached to public at large. attached to interest of specific
person.
2. The main aim is to protect The main aim is to protect private
public interest. interest.
3. In this, there are no two It is a dual party case.
parties.
4. A case cannot be withdrawn. The writ or application can be
withdrawn.
5. The process is very simple. The process is complicated,
expensive and delaying.
6. It is prospective. It is retrospective.
7. Its subject matter is generally Its subject matter is of private
of social or national interest. right.
8. The evidence is narrow and The evidence is strictly examined.
free from technicalities.
9. The work of judge is related The work of judge is limited only
to national interest and to examination of evidences.
liberty.

29
 Conclusion
It would be appropriate to conclude by quoting Cunningham, “Indian
PIL might rather be a Phoenix: a whole new creative arising out of the
ashes of the old order.” PIL represents the first attempt by a developing
common law country to break away from legal imperialism perpetuated
for centuries. It contests the assumption that the most western the law,
the better it must work for economic and social development such law
produced in developing states, including India, was the development of
under develop men. The shift from legal centralism to legal pluralism
was prompted by the disillusionment with formal legal system. In India,
however instead of seeking to evolve justice- dispensing mechanism
ousted the formal legal system itself through PIL. The change as we
have seen, are both substantial and structural. It has radically altered the
traditional judicial role so as to enable the court to bring justice within
the reach of the common man. Further, it is humbly submitted that PIL is
still is in experimental stage. Many deficiencies in handling the kind of
litigation are likely to come on the front. But these deficiencies can be
removed by innovating better techniques. In essence, the PIL develops a
new jurisprudence of the accountability of the state for constitutional
and legal violations adversely affecting the interests of the weaker
elements in the community. We may end with the hope once expressed
by an eminent judge “The judicial activism gets its highest bonus when
its orders wipe some tears from some eyes.

30
PART - B

Judgement Analysis
of
Sheela Barse
V.
State Of Maharasthra
AIR 1983SC

31
 CONTENTS

 Introduction

 Facts of the Case

 Judgement

 Judgement Analysis

32
 Sheela Barse V. State Of Maharasthra (1983)
AIR 1983 SC

INTRODUCTION

Sheela Barse, a free lancer journalist , fought permission to interview the

female prisoners in the Maharashtra state jail . The permission was
granted by the the Insepector General of prison.
The Writ petition is based on letter addressed by Sheela Barse , a
journalist complaining the custodial voilance to women priosoners while
confined in the lock-up in the city of Bombay Central Jail with the
permission of insepector general she interview 15 womens in between
11 to 17 may 1982 and five out of them told her that they been assaulted
by the police in the police lock-up . The petitioner particularly
mentioned the cases of two namely Devamma and Puspa. Who were
alleged by assaulted by police and tortured by them it is not neccessory
for the purpose of this writ petition to go into the various allegation in
regard to the treatment method out of the women prisioners.
The respondent also contend that the article of the constitution refered
by the petitioner were not attracted to the case.
The term ‘life’ in Article 21 covers the living condition of the prisioners
, prevelling the fails . The prisioners are also entitled the benefits of the
gurantees provided in the article subject to the reasonable restrictions. It
is necessary the public gave should be permitted on the prisoners and
permission as friends of the society and public gaze should e permitted
on the prisioners and pressman as a friend of the society and public
spritutd citizen should have acess to information about the interviews

33
with prisoners. The factual information collected as a result of the
interviews should usually be cross checked with authorities , so that a
wrong picture of a situation may not be published.
Petitioner can make a fresh application for permission to interview with
prisoners which is to be within accordance with the guidelines laid
down.

34
 FACTS

A letter from Ms. Sheela Barse routed to the Honarable Chief Justice of
India in regarding the unfourtunate and deplorable conditions in which
rationally sick and in same female were locked up and kept in
presidency prison and yerwada jail in Bombay.
After some time Sheela Barse pulled back from the issue. Supreme court
legalized aim committee was substituted. Magistrate likewise selected to
examine and provide details regarding the conditions in accuqiring in
places where females and minors being confined.
- Article 21 covers the concept of life
- Article 19(1) of the constitution provides all citizens of India and
also prisioners have right to freedom of speech & expression.
In the preamble of the constitution ,the people of India declared
their solemn resolve to secure to all its citizen to liberty of
thoughts and expression.
- The condition of women prisioners were really very worse.
- 5 prisioners out of 15 were solmmly told about their sick condition
,for and they were tortured by the police in the police lockup.
- Cross check therapy is very suitable for authorities because of it
wrong picture could not be published.
- Disclosoure of correct information is necessary
- Sghela Barse was no free lancer journalist not a sponsored by a
newspaper.

35
 JUDGEMENT

Original Juridicition writpettion no.1053 of1982 (umder article 32 of the

constitution Suleman Khurshid and K.K. Luthra for the petitioner. S.B.
Bhasme , A.M. Khanwilkar and As. Bhasme for the respondent.
The Judgement of the court was delared by Ramnath Mishra J. petitioner
is a Bombay based free lancer journalist who had sought permission to
interview women prisoner in the Maharasthra jails on 6.5.1982. I.G. of
prisioner gave permission of the state permitted her to do so in respect of
female prisoner loged in Bombay central jail and the yenex Central Jail
Pune . When the petitioner started the tape recorder her interview with
the prisioner she was advised instead to keep notes only for interviews .
When the petitioner raised objection on this score . The insepector
genral of the prisoner orally indicates that he had changed his mind, later
the petitioner was informed that the grant of permission to have
interview was a matter of discreditior of the inspector general and such
interviews are originally allowed to reachers scholars only. Petitioner
has made the graviance over the withdraw of the permission and has the
right to know if government is administrating the jails accordance with
law. Petitioner letter was treated as a writ petitioner under Article 32 of
the constitution.

After that, The I.G. wrote a letter to a petitioner on the 31 st May 1982 ,
explaning therin that ,normally the prision authorities do not allow the
interview with prision other than P.H.D. students and scholars . further
I.G. indicate that there have no right of jouranlist to elict information
from prisioners.

36
The counter indicates , the counter affidavit indicates that the state
government has prescribed a set f rules known as Maharasthra visitors of
prisions rule 1962.
After that board of visitors constituted in every jail board consists
chairman, warden, barrackts ,cell wards , work sheds etc. to make sure
health,cleanliness , security of the prisoners ,punishment books are
provided.
We have heared about Salman Khurshuid Ahmad for the petitioner and
Mr Bhasme for the ststed Maharasthra ,Acc. To the petitioner and her
council article 19(1) and article (21) gurantees to every citizen
reasonable acess to information about the institution that for mulate .But
on the behalf of the state it is has been contended that neither of the
article is attracted to a matterof this type .The rules made by the govt.
are intended to safeguards the interest of the prisioner.
In the case of Prabha Dutt VS Union Of India , this court has
considering the claim of journalist to interview two condemned
prisioners a warding execution . The CJI said that before considering
before considering the merits of the application , we would like to
observe that , the constitutional right to freedom of speech and expersion
conferred by article 19(1)(a) which includes the freedom press to have
an unrestricted acess to means of information.
In such a situation we are the view thjat public acess should be permitted
, we have already pointed out the citizen does not have any right either
under article 19(1)(a) or 21 to enter into jails for collecting the
information but in order that guarantee of fundamental rights under
article 21 may available to the citizen detained in jail . It lesume
necessary to permit citizen access to information as also interview with
prisioners.

37
Interview become necessary otherwise th correct information may not be
collected but such acess has got controls & regulated.
We agree with the submission of mr. Bhasme for the respondent that as
and when he factual information is collected as assault as a result of
interview the same should usually checked with the authorities , so that
the wrong picture of the situation may not be published . there may be
case where such tape recordings are necessary but there was a special
authorities.

38
 OBESERVATION

Failure to provide legal assistance to poor and improvished persons

violates constitutional gurantee. Article 39A (Directive principal of state
policy) Casts a duty on the state to srecure the operation of legal system
/and promote justice on the basis of legal system & equal oppourtunity.
The right to legal aid is also fundamental right under Article 14(equity
before law)right to life & personaliberty . The court express serious
concern about the plight to prisioners.
- Female suspects must be kept in separate prisoners.
- Interrogation of female must be carried in presence of female
police person.

A person arrested without warrant must be immidietly informed about

the grounds of arrest & right to be obtain bail.

39
PART - C

Memorial for Moot

Court
(Respondent)

40
 IN THE SUPREME COURT OF INDIA
Case filed for special leave to appeal by the Supreme Court under Article 136

Of the constitution of India, 1950.

MEMORIAL ON BEHALF OF THE RESPONDENT W.P. NO. OF 2008.

Civil Writ Petition No. Of 2008

Shiv Kumar Appellant

V.

Nita Kumar Respondent

Most Respectfully Submitted before the Hon’ble Chief Justice and other Judges

Of Supreme Court of India

MEMORANDUM ON BEHALF OF RESPONDENT

DRAWN AND FILED BY THE COUNSEL FOR THE RESPONDENT

41
 TABLE OF CONTENTS

List of Abbreviations 3

Index of Authorities 4

Statement of Jurisdiction 5

Statement of Facts 6-7

Issues Raised 8

Summary of Arguments 9

Arguments Advanced 10 – 17

I. WHETHER THE SPECIAL LEAVE APPEAL IS MAINTAINABLE IN SUPREME

COURT OF INDIA UNDER ARTICLE 136 OF THE CONSITUTION OF INDIA? 10
II. WHETHER THE REASONS OF RESPONDENT TO LEAVE THE HOUSE ARE
JUSTIFIABLE AND IS SHE ENTITLED FOR MAINTANENCE? 11 - 12
III. WHETHER THE ACTIONS OF RESPONDENT AMOUNTS TO MENTAL CRUELTY? 13 - 14
IV. WHETHER THE DECREE OF DIVORCE UNDER SECTION 13(1) (ia) OF HINDU
MARRIAGE ACT, 1955 BE GRANTED AS PLEADED BY THE APPELLANT? 15 – 17

Prayer 18

42
 LIST OF ABBREVIATIONS

ABBREVIATIONS EXPANSION

& And

A.I.R All India Record

Anr. Another

CPC Code of Civil Procedure

CrPC The Code of Criminal Procedure

Hon’ble Honourable

Ins. Inserted

IPC Indian Penal Code

Ors. Others

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Record

Sec. Section

S/O Son Of

W.e.f. With Effect From

W/O Wife Of

43
44
 INDEX OF AUTHORITIES

A. Cases

I. Supreme Court

1) Dr. NG Dastane V. Mrs. S. Dastane AIR 1975 SC 1534

2) Gaurav Nagpal V. Sumedha Nagpal AIR 2009 SC 557
3) Manish Goel V. Rohini Goel AIR 2010 SC 1099
4) Mangoo & Anr. V. State of Madhya Pradesh AIR 1995 SC 959
5) Pritam Singh V. The State AIR 1950 SC 169

II. Supreme Court Cases

1) Panchi & Ors. V. State of Uttar Pradesh 1998 7 SCC 177
2) Praveen Mehta V. Inderjit Mehta 2002 5 SCC 706
3) V. Bhagat V. D. Bhagat 19 November 1993 SC – 1994 AIR 710, SCC (1)
337
4) Samar Gosh v. Jaya Gosh (2007) 4 SCC 511

B. Books
1) Dr. Paras Diwan, Modern Hindu Law, Allahabad Law Agency, 22nd
edition.
2) Mulla, Principles of Hindu Law, Lexis Nexis Gurgaon, Haryana;
Twentieth edition , Volume I and II, 2007
3) Prof. U.P.D. Kesari, Modern Hindu Law, Central Law Publications,
Allahabad, Ninth edition, 2013

C. Statutes
1) The Code of Civil Procedure,1908
2) The code of Criminal Procedure, 1973
3) The constitution of India, 1950
4) The contempt of Court Act, 1971

45
5) The Dowry Prohibition Act, 1961
6) The Hindu Marriage Act, 1955
7) The Hindu Adoption and Maintenance Act, 1956
8) Indian Penal Code 1860

46
 STATEMENT OF JURISDICTION

THE HON’BLE SUPREME COURT OF INDIA EXERCISES JURISDICTION TO HEAR

AND ADJUDICATE OVER THE MATTER UNDER ARTICLE 136 OF THE
CONSTITUTION OF INDIA, 1950.

THE HON’BLE COURT HAS THE AUTHORITY TO REJECT THE APPEAL FILED BY
THE APPELLANT. SINCE THE MATTER IS SAME FOR ALL THE ASSESSMENT
YEARS,
THE APPELLANT HAS FILED A SINGLE SPECIAL LEAVE TO APEEAL BEFORE
THE HON’BLE COURT. THE RESPONDENT MOST HUMBLY REJECTS
THE JURISDICTION OF THE HONOURABLE SUPREME COURT OF
INDIA UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA.
THE PROVISION UNDER WHICH THE
APPELLANT HAS APPROACHED THE
HON’BLE COURTS IS READ
HEREIN UNDER AS:

Article 136 – Special leave to appeal by the Supreme Court

Notwithstanding anything in this chapter, the Supreme Court may, in its discretion, grant special
leave to appeal from any judgement, decree, determination, sentence or order in cause or matter
passed or made by any court or tribunal in the territory of India.

47
 STATEMENT OF FACTS

A Matrimonial bond between Shiv Kumar and Nita Kumar

The Appellant husband - Shiv Kumar and the Respondent wife – Nita Kumar were married on
2nd March 1994 according to the Hindu Rituals and traditions given in Sec. 7 of the Hindu
Marriage Act, 1955.16 The couple was registered in the office of Andaman & Nicobar Islands
17
Public Works Department according to the Sec. 8 of the Hindu Marriage Act, 1955. The
Appellant husband worked as an engineer and the Respondent wife worked as a draftsman, both
working in the island of Andaman and Nicobar. They lived in a matrimonial home together for
two years and after two years a son was born as a result of the wedlock on 24th January 1996.

II

Non Cordial Relation between the Appellant and Respondent

During this period the Appellant Husband alleged that the relation between the spouses was not
cordial ever since the marriage and that the Respondent Wife wanted to live separately with her
husband and child, thus forcing him to leave his family. The Appellant Husband also alleged that
the Respondent Wife under Sec. 13 (1) (ia)18 of Hindu Marriage Act, 1955 used to insult and
abuse him by calling him “Dhobi” and the minor child as a “Dhobi’s son”. During their
cohabitation the couple changed their residence thrice; both alleged that it was because of one
another. The Appellant Husband blamed that the Respondent Wife behaved rudely with the
landlord and the neighbours whereas the Respondent Wife alleged that firstly it was due to the

16
Section 7 of Hindu Marriage Act,1955 - Ceremonies for a Hindu Marriage.
17
Section 8 of Hindu Marriage Act, 1955 - Registration of Hindu Marriage.
18
Section 13 (1) (ia) of Hindu Marriage Act,1955 was Subs. By Act 68 of 1976, sec. 7 (a) (i), for clause (i) (w.e.f.
27-5-1976).

48
wish of the husband and secondly the rent was increased along with that the quantity of water
provided was not enough.

III

Allegations and Steps taken by the Respondent Wife

The Respondent Wife alleged that as her father worked as a “Chowkidar”, the family of
Appellant was ill-disposed towards her and often abused her for not bring enough dowry which
can be punishable. Respondent wife further filed a complaint against the Appellant Husband
under Sec. 498-A19 of Indian Penal Code which was later on withdrawn20. She also levelled an
allegation of extra marital affair under Sec. 49721 of IPC with a woman working under him and
as a result of it the Appellant shouted and abused her whenever confronted. As a result of these
fights the respondent left her matrimonial home to live with her parents and it was only after an
effort made by the Appellant Husband to sent a legal notice on which she returned. In 2003 the
Respondent Wife again left her home to live with her parents and didn’t came to her matrimonial
home since.

IV

Divorce petition filed by the Appellant Husband

In 2005, the Appellant Husband filed a Divorce in Matrimonial Suit No. 27, District Court,
Andaman and Nicobar Islands. Desertion gave a firm ground to the appellant to file for divorce.
The Appellant levelled up certain grounds of cruelty and desertion under Section 13 (1)(i a) and
13 (1)(i b) of Hindu Marriage Act, 1955. After the hearing the court passed the Decree of
Divorce on 14th July 2008.

Appeal filed by the Respondent Wife

19
Section 498A of IPC - Husband or relative of husband of a woman subjecting her to cruelty.
20
Order 23 Rule 1 of CPC - Seeking permission to withdraw the suit with liberty to file a fresh suit.
21
Section 497 of IPC - Adultery.

49
The Respondent appealed to the High Court of Calcutta – in Circuit Bench at Port Blair by the
Respondent wife in F.A. No. 003 of 2008. The Honourable court heard the spouses in chamber
for exploring whether any reconciliation was possible or not as it is the duty of the court to try to
bring the parties in conciliation under Sec. 23 (2) 22 of Hindu Marriage Act, 1955. The
Respondent Wife was ready to forget the past and live with her husband but the Appellant
Husband was against any such thing. The Court then requested the Appellant to try to solve the
problem outside the Court during the weekend so as to save the marital bond. Though Appellant
accepted the order in front of Court but did not abide to it thus failed in reconciliation and as a
result of this contempt of Court23, the Decree of Divorce was set aside by the Court.

VI

Special leave appeal by the Appellant

The Appellant Husband being aggrieved by the decision given by the High Court filed a special
leave appeal in the Honourable Supreme Court of India under Article 136 of the Constitution of
India.

22
Section 23 (2) of Hindu Marriage Act, 1955 – duty of the court to save the matrimonial bond.P
23
Section 2 of contempt of court act 1971.

50
 ISSUES RAISED

I. WHETHER THE SPECIAL LEAVE APPEAL IS

MAINTAINABLE IN SUPREME COURT OF INDIA UNDER
ARTICLE 136 OF THE CONSITUTION OF INDIA?

II. WHETHER THE REASONS OF RESPONDENT TO LEAVE THE

HOUSE WERE JUSTIFIABLE AND IS SHE LIABLE FOR
MAINTANANCE?

III. WHETHER THE ACTIONS OF RESPONDENT AMOUNTS TO

MENTAL CRUELTY?

IV. WHETHER THE DECREE OF DIVORCE UNDER SECTION

13(1) (ia) OF HINDU MARRIAGE ACT, 1955 BE GRANTED AS
PLEADED BY THE APPELLANT?

51
 SUMMARY OF ARGUMENTS

I. WHETHER THE SPECIAL LEAVE APEEAL IS MAINTAINABLE IN

SUPREME COURT OF INDIA UNDER ARTICLE 136 OF THE CONSTITUTION
OF INDIA?

It is humbly submitted before the honourable court that Article 136 of the Constitution of
India vests in the Supreme Court of India with a special power to grant special leave. In
Pritam Singh v. The State24 the court said “the Supreme Court is vested wide
discretionary power under Article 136 and this power is required to be exercised
sparingly and only in exceptional cases.”

II. WHETHER THE REASONS OF RESPONDENT TO LEAVE THE HOUSE ARE

JUSTIFIABLE AND IS SHE ENTITLED FOR MAINTANENCE?

Firstly, under Section 18 (2) (g) of Hindu Adoption and Maintenance Act 1956 the wife
according to it can live separately if there is any cause justifying her living separately.
Secondly, she complained against her husband under section 498A and levelled up
accusations against husband of extra marital affair.
Thirdly, she accused husband’s family for abusing her for not bringing enough dowry.
Fourthly, sec 125 of CPC gives her right to take maintenance from her husband.

III. WHETHER THE ACTIONS OF RESPONDENT AMOUNT TO THE MENTAL

CRUELTY?

Firstly, the term ‘Cruelty’ constitutes both acts of Physical and Mental Cruelty. In Bhagat
v. Bhagat,25 the honourable Supreme Court defined Mental Cruelty as “that conduct
which inflicts upon the other party such metal pain and suffering as would make it
possible for that party to live with the other.”
Secondly, the acts of the respondent are not so serious in nature. They don’t constitute to
mental cruelty as defined by the Honourable Court in the Samar Gosh judgement (supra).
They are trivial irritations, normal wear and tear of the marriage life and do not account
to amount to mental cruelty.

24
AIR 1950 SC 169
25
V. Bhagat v. D. Bhagat, AIR 1994 SC 710

52
IV. WHETHER THE DECREE OF DIVORCE UNDER SECTION 13 (1) (ia) OF
HINDU MARRIAGE ACT, 1955 BE GRANTED AS PLEADED BY THE
APPELLANT?

The respondent is of opinion that the court shall not grant the decree of divorce on several
bases;
Firstly, the basis of cruelty on which the appellant filed for divorce is wrong as the nature
of acts was not so serious.
Secondly, the respondent under Section 2 of Contempt of Court Act 1971 want the court
to pay attention to the fact that the appellant did not followed the order given by the
Calcutta High Court to meet the wife outside the court premises.

53
 ARGUMENTS ADVANCED

I. WHETHER THE APPEAL IS MAINTAINABLE IN SUPREME COURT UNDER

ARTICLE 136 OF THE CONSTITUTION OF INDIA?

It is humbly submitted before this honourable Court that Article 136 vests Supreme Court
of India with a special power to grant special leave. It reads,
“Notwithstanding anything in this chapter, the Supreme Court may, in its discretion grant
special leave to appeal from any judgement, decree, determination, sentence or order in
any cause or matter passed or made by any court or tribunal in the territory of India.”

The Honourable Supreme Court in a catena of judgements has pointed out that this
special discretionary power is granted to the Supreme Court to grant leave to appeal
against any judgement in case any substantial constitutional question of law is involved,
or gross injustice has been done. The Supreme Court of India may also refuse to grant the
leave of appeal by exercising its discretion. An aggrieved party from the judgement or
decree of high court cannot claim special leave to appeal as a right but it is a privilege
which the Supreme Court of India is vested with and this leave to appeal can be granted
by it only.

The Honourable Supreme Court in Pritam Singh v. The State26 observed that “the
Supreme Court is vested wide discretionary power under Article 136 and this power is
required to be exercised sparingly and only in exceptional cases.” The Court also
observed that “this court should not grant special leave, unless it is shown that
“exceptional and special circumstances exist”, that “substantial and grave injustice” has
been done and the case in question presents features of sufficient gravity to warrant a
review of the decision appealed against.”

26
AIR 1950 SC 169

54
 In the present case, neither an exceptional and special circumstance exists nor is the
appellant facing substantial and grave injustice due to the judgement of the Honourable
High Court of Calcutta.

II. WHETHER THE REASONS OF RESPONDENT TO LEAVE THE HOUSE ARE

JUSTIFIABLE AND IS SHE ENTITLED FOR MAINTANENCE?

The actions of Respondent on which the Appellant filed for the Decree of Divorce is not
justifying and thus there are several reasons which justifies the actions of the Respondent
Wife on her part. The Hindu wife has several rights to live separately on reasonable
grounds. The grounds on which the Respondent raised the issue are;

1. Section 498A27 of IPC – Whoever, being the husband or the relative of the
husband of a woman, subjects such woman to cruelty shall be punished with
imprisonment for a term which may extend to three years and shall also be liable
to fine. Explanation.—For the purpose of this section, “cruelty” means—

(a) Any wilful conduct which is of such a nature as is likely to drive the woman to
commit suicide or to cause grave injury or danger to life, limb or health (whether
mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing
her or any person related to her to meet any unlawful demand for any property or
valuable security or is on account of failure by her or any person related to her to
meet such demand.

The wife filed a case under Section 498A of IPC, as she accused the husband and
his family for them being ill-disposed and irrespective towards the respondent’s
father as he was a “chowkidar”, thus abused her for not bringing enough dowries
27
Section 498A of IPC - Husband or relative of husband of a woman subjecting her to cruelty.

55
 which gave another valid reason for her to leave the matrimonial house and live
with her parents. The Respondent thus raised the issue of dowry under Section
428 of Dowry Prohibition Act 1961; “If any person demands, directly or
indirectly, from the parents or other relatives or guardian of a bride or
bridegroom, as the case may be, any dowry, he shall be punishable with
imprisonment for a term which shall not be less than six months, but which may
extend to two years and with fine which may extend to ten thousand rupees.”

2. Another justifying reason could be the accusations made by the Respondent on

the Appellant of him being in an extra marital affair under Section 497 of IPC
which is related to Adultery. The wife blamed that her husband was in an extra
marital affair with a women who was working under him and claimed that
whenever she confronted him in this respect the appellant would shout and abuse
her which again becomes an act of mental cruelty and abuse on the wife under
Section 498A of IPC.

3. Order 23 rule 1 of CPC – gives right to an individual to withdraw the complaint

and thus the Respondent wife did withdrew her complaint against the Appellant
under Section 498A of IPC. This acts as a proof that the respondent wife did try to
create reconciliation between them but it was after the acts of the Appellant which
forced her to leave the house and live with her parents.
Several blames and acts by the Appellant which were abusive to the wife were:
firstly, the Appellant accused her for the change of the residence thrice as
according to him she picked fights with the landlord and the neighbours, which
were denied by her. Secondly, the extra marital affair of husband and Thirdly, the
indirect demand of dowry.

4. Section 1829 (2) (g) of Hindu Adoption and Maintenance Act, 1956 – this section
supports the separate living of a Hindu wife from her husband under certain justifying

28
Section 16 of Dowry Prohibition Act 1961 - Penalty for demanding dowry.
29
Section 18 (2) (g) of Hindu Adoption and Maintenance Act 1956 - Maintenance of wife.

56
 reasons. This section supports the wife claim on maintenance, thus securing her in
time of need. The statutory provision allows the wife to live separately without
forfeiting her claim for maintenance during the life time of the husband, whether she
was married before or after the commencement of the act. A wife can claim the right
only if she is liable to prove that the marriage was solemnized i.e she must be legally
married to the person against whom she is taking the claim.

5. Section 125 of CrPC – gives right to the wife to ask for maintenance for both
herself and her child. The question arises that if she is a working woman then is she
entitled to ask for maintenance then the answer to it is yes. It is the right of Hindu
Women to ask for maintenance even when they are earning.

Thus the separate living of the wife which varied in two terms i.e in 1997 she left the
matrimonial home and went to her parents and it was after the legal notice sent by the husband
that she returned, this proved that she was even after facing such cruelties and abusive behaviour
went back to her matrimonial home. And it was in 2003 that she left the house again and did not
returned until 2005 when the husband filed for divorce. Thus according to the Section 9 of Hindu
Marriage Act, 195530 the burden of proof that the reason for the wife to withdraw the society of
husband was just shall be on the wife. Which has been aptly proved by the Respondent on the
given basis thus the decree of divorce shall not be granted on the basis of desertion.

III. WHETHER THE ACTIONS OF RESPONDENT AMOUNT TO THE MENTAL

CRUELTY?

It is humbly submitted to this Honourable Court that Marriage is a sacramental union, a

holy union between man and woman and not a contractual union as per Hindu traditions.
It is a union which once tied cannot be untied. “According to Manu, husband and wife
are united to each other not merely in this life but even after death, in the other world.” 31

Section 13 (1) (ia) of Hindu Marriage Act, 1955 reads “after the solemnisation of the

30
Section 9 of Hindu Marriage Act, 1955 - Restitution of conjugal rights
31
Dr. Paras Diwan, Modern Hindu Law (Allahabad law Agency, 22nd edition).

57
 marriage, treated the petitioner with cruelty;” This section defines the term “Cruelty”, as
it constitutes both mental and physical cruelty. Even though the act doesn’t define mental
cruelty as such, the Apex court has in ample verdicts defined and established the grounds
for mental cruelty.

In Bhagat v. Bhagat32, the Honourable Supreme Court defined Mental Cruelty as "that
conduct which inflicts upon the other party such mental pain and suffering as would
make it not possible for that party to live with the other. In other words, mental cruelty
must be of such a nature that the parties cannot reasonably be expected to live together.”
It was further stated that it “What is cruelty in one case may not amount to cruelty in
another case. It is a matter to be determined in each case having regard to the facts and
circumstances of that case. If it is a case of accusations and allegations, regard must also
be had to the context in which they were made.”

As alleged by the appellant, the respondent often misbehaved with the appellant and their
child by calling him "Dhobi" and the child "Dhobi ka aulad" and such utterances had
adverse effect on both the respondent and the minor child. This was proved in the trial
court using the child as the witness. The words even if it was ever used by the
Respondent to call the child isn’t right, it doesn’t amount to such degree of cruelty that
the Appellant's life became so miserable and hence the marital tie has to be broken. It is
humbly requested in front of this Honourable the Court that it would not be justified in
holding such an instance to be grounds sufficient enough to dissolve a marriage.

The Appellant blamed the wife for the moving of residence thrice as it was due her rude
behaviour with the landlord and the neighbours; but these allegations were shrugged off
by the Respondent as she is of opinion that it was due to the will of the husband and the
increase in the rent and less quantity of water available which were the real cause of the
shifting. Even then she is ready to forget the allegation and move in with her husband to
their matrimonial home.

32
AIR 1994 710, SCC (1) 337

58
 The nest allegation made by the Appellant that the Respondent filed a case under Section
489A of IPC against him and that this act of her constituted Mental Cruelty, but in this
case this allegation doesn’t hold any base as the case was already withdrawn by the wife
before any punishment and both the parties began to cohabit again. This implies that the
Appellant condoned the act of the Respondent. And according to Section 23 (1) (b) of the
Hindu Marriage Act, 1955 relief can be granted to the petitioner where the ground of the
petition is cruelty the petitioner has not in any manner condoned the cruelty. Since the
appellant has condoned the particular act, he can’t be using the same as a ground for
mental cruelty. The same has been held in magnitude of cases including the landmark
case of Dastane v. Dastane33

The last instance of Cruelty alleged by the Appellant Husband is the allegation made by
the Respondent that he has been into an extra marital affair. Though it is true that the
Respondent was not able to prove the allegation correct but she knew the lady with whom
her husband was into an extra marital affair. The Learned Judge in C. Nagappan rightly
pointed out in the High Court that “If one is involved in an extra marital affair, which is a
social crime, it would hardly be an open affair and in most cases be a clandestine one. It
would be difficult for a wife to prove such allegations by adducing evidence. Mere failure
of the wife in such a case to prove her allegation ought not to have to prove such a
allegation which would not entitle the husband to decree of divorce.” Thus such an
ground raised by the husband cannot give a decree of divorce as the wife was ready to
forget all the past and solve the issues, but the husband went against the decision of the
Calcutta High Court.

The mental cruelty has also been examined in Parveen Mehta v. Inderjit Mehta34 “Cruelty
for the purpose of Section 13(1)(ia) is to be taken as a behaviour by one spouse towards
the other, which causes reasonable apprehension in the mind of the latter that it is not safe

33
Dr. N.G. Dastane v. Mrs. S. Dastane, AIR 1975 SC 1534
34
2002, 5 SCC 706

59
 for him or her to continue the matrimonial relationship with the other. Mental cruelty is a
state of mind and feeling with one of the spouses due to the behaviour or behavioural
pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to
establish by direct evidence. ”.

Thus the Respondent is of believe that the acts of her were not of such a serious in nature.
And they do not cause Mental Cruelty as laid down by the Honourable Court in the
Samar Gosh35 judgement. According to the court they are just trivial irritations, normal
wear and tear of the married life and they does not in anyways account to the mental
cruelty.

IV. WHETHER THE DECREE OF DIVORCE UNDER SECTION 13 (1) (ia) OF

HINDU MARRIAGE ACT, 1955 BE GRANTED AS PLEADED BY THE
APPELLANT?

Section 13 of the Hindu Marriage Act 1955 defines the grounds for divorce and Section13
(1)(i-a) specifically states that:
(1) Any marriage solemnised, whether before or after the commencement of this Act,
may, on a petition presented 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 solemnisation of the marriage, treated the petitioner with
cruelty

In Gaurav Nagpal V. Sumedha Nagpal36, the Honourable Supreme Court indicated that
“Effort should be to bring about conciliation to bridge the communication gap which leads to
such undesirable proceedings. People rushing to courts for breaking up of marriage should
come as a last resort, and unless it has an inevitable result, courts should try to bring about
conciliation. The emphasis should be on saving marriage and not breaking it."

35
Samar Gosh v. Jaya Gosh (2007) 4 SCC 511
36
AIR 2009 SC 557

60
 There are several reasons as to why the Decree of Divorce shall not be granted
to the Appellant. They are listed down below:

1. The wife is of opinion that though several issues did arise between the Husband and
the Wife but still she was ready to forget all the past even the mistakes made by the
Husband and the abuses that she had to go through. This shows that how she is willing to
save the holy relation or bond. Thus she did give evidences and is trying to make the
court well aware with the facts of both the sides.

2. In this case, the son who was of a tender age when alleged the act and he stayed with
his father for those years when the Respondent was staying away from the matrimonial
home. Hence the trial court cannot weigh too much on the child’s evidences. In the case,
Panchhi & Ors. V. State of Uttar Pradesh37 and Mangoo & Anr. V. State of Madhya
Pradesh38, the court held that the child witness must be evaluated more carefully because
a child is more susceptible to be swayed by what others tell him and thus a child witness
is an easy prey to tutoring. Based on these facts and case laws it is clear that the child was
not a credible witness and District Court was wrong in placing so much reliance on the
testimony of the child witness.

3. Section 2 of contempt of court act 1971 – Section 2 lays down the definitions. In this
case, the contempt of court was done by the Appellant when he was ordered by the High
Court of Calcutta to meet the Respondent wife outside the court premises so as to solve
the problems by talking, but he did not abide by this thus he did a “Civil Contempt” given
in Section 2 (b) which mean wilful disobedience of any judgement, decree, discretion
order, writ or other process of a court or wilful breach of an undertaking given to the
court.

37
(1998) 7 SCC 177
38
AIR 1995 SC 959

61
 Undoubtedly under Article 136 in the widest possible terms, a plenary jurisdiction
exercisable on assuming appellate jurisdiction has been conferred upon the Supreme
Court. However, it is an extra-ordinary jurisdiction vested by the Constitution of India
in the Supreme Court with implicit trust and faith and thus extra ordinary care and
caution has to be observed while exercising this jurisdiction. There is no vested right
to a party to approach the Supreme Court for the exercise of such a vast discretion,
however such a course can be resorted to when the Supreme Courts feels that it is so
warranted to eradicate injustice. More so there should be a question of law of general
public importance or decision which shocks the conscience of the court are some of
the prime requisites for grant of Special Leave; said in Manish Goel v. Rohini Goel39

4. Section 9 of Hindu Marriage Act, 1955 – it read out “Petition for restitution of
conjugal rights.-—When either the husband or the wife has, without reasonable
excuse, withdrawn from the society of the other, either wife, or husband may apply,
by petition to the District Court40 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.” In this case the Appellant has filed for the decree of
divorce and as the Respondent does not want the marriage to end she can ask for the
restitution of her conjugal rights i.e to restore the relation of the spouse.

Thus, the Respondent is of opinion that the Appellant shall not be granted the Decree
of Divorce as it is fault on his side and not on her as the court tried for reconciliation
to save the marriage. Also that such a passage of decree of divorce will have an ill
effect on the child and the wife more than the on the husband as according to the
Indian society it is the wife who is treated bad and not the husband. Thus this act on
the part of the Appellant highlights that he has decided to sustain the order of Divorce
and was not interested in saving the marriage and thus this is now a humble request

39
AIR 2010 SC 1099
40
The words “or the High Court” omitted by Act 51 of 2001, sec. 18 (w.e.f. 3-10-2001).

62
from the Respondent that such an ill-will of the Appellant shall not supported and
thus the sacramental bond should be saved.

63
 PRAYER

In the light of the facts stated, issues raised authorities cited and pleadings advanced, it is
most humbly prayed before this honourable court that it may be graciously pleased to:

1) Reject the Appellant’s plea for the grant of Special Leave under Article 136 of the
constitution of India.
2) If not, then reject the Appellant’s prayer for decree of divorce under section 13 (1)
(ia) of the Hindu Marriage Act, 1955 and uphold the judgement passed by the
honourable high court of Calcutta, Andaman and Nicobar Islands.

And pass any other order that it deems fit in the interest of justice and good
conscience. All of which is respectfully submitted.

64
 PART - D

CCCOURT COU
Memorial for Moot Court
ccoutsrj

COU
(Petitioner)

65
 IN THE SUPREME COURT OF INDIA
Case filed for special leave to appeal by the Supreme Court under Article 136

Of the constitution of India, 1950.

MEMORIAL ON BEHALF OF THE PETITIONER W.P. NO. OF 2008.

Civil Writ Petition No. Of 2008

Shiv Kumar Appellant

V.

Nita Kumar Respondent

Most Respectfully Submitted before the Hon’ble Chief Justice and other Judges

Of Supreme Court of India

MEMORANDUM ON BEHALF OF APPELLANT

DRAWN AND FILED BY THE COUNSEL FOR THE APPELLANT

66
 TABLE OF CONTENTS

List of Abbreviations 3

Index of Authorities 4-5

Statement of Jurisdiction 6

Statement of Facts 7-8

Issues Raised 9

Summary of Arguments 10 -11

Arguments Advanced 12-20

I. Whether the appeal is maintainable in Supreme Court of India under

Article 136 of the Constitution of India? 12
II. Whether the Respondent Wife treated the Appellant with cruelty? 13-15
III. Whether the Appellant had the necessary grounds to file for a Decree
of Divorce or Judicial Separation? 16-18
IV. Whether the Appellant is entitled to a Decree of Divorce under section
13(1) (ia) of Hindu Marriage Act, 1955 or to any other relief or reliefs
by the hon’ble Supreme Court of India? 19-20

Prayer 21

67
 LIST OF ABBREVIATIONS

ABBREVIATIONS EXPANSION

& And

A.I.R All India Record

CPC Code of Civil Procedure

CrPC The Code of Criminal Procedure

Hon’ble Honourable

Ins. Inserted

IPC Indian Penal Code

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Record

Sec. Section

S/O Son Of

W.e.f. With Effect From

W/O Wife Of

68
 INDEX OF AUTHORITIES

A. Cases

I. Supreme Court
1) Gananath Pattnaik v. State of Orissa 2002 SC case no. Appeal – 1 of 1995
2) Praveen Mehta v. Inderjit Mehta AIR 2002 SC 2582
3) Savitri Pandey v. Prem Chandra Pandey SC 2002 20-21 of 1999
4) State of Punjab v. Rfiq Masih (white washer) AIR 2015 SC 1267
5) Suman Singh v. Sanjay Singh SC civil appeal no- 7114-7115 of 2014

II. Supreme Court Report

1) Vishwanath S/O Sitaram Agarwal v.Sau Sarla Vishwanath Agarwal –
SCR 4 July 2012
4905 of 2012 (pg. No – 607 – 643)

III. Supreme Court Cases

1) Vinita Saxena v. Pankaj Pandit SCC 778

IV. High Court

1) Rabindra Kumar v. Usha Devi H.C Jharkhand 5 March 2014 F.A. no. 32
OF 2004
2) Sanjay Sudhakar Bhosale v. Khristina W/O Sanjay Bhosale – 8 April 2008
– Bombay H.C 226 of 2002.

69
B. Books
4) Dr. Paras Diwan, Modern Hindu Law, Allahabad Law Agency, 22nd
edition.
5) Mulla, Principles of Hindu Law, Lexis Nexis Gurgaon, Haryana;
Twentieth edition , Volume I and II, 2007
6) Prof. U.P.D. Kesari, Modern Hindu Law, Central Law Publications,
Allahabad, Ninth edition, 2013
C. Statutes
9) The Code of Civil Procedure,1908
10) The code of Criminal Procedure, 1973
11) The constitution of India, 1950
12) The contempt of Court Act, 1971
13) The Hindu Marriage Act, 1955
14) Indian Penal Code 1860

70
 STATEMENT OF JURISDICTION

THE HON’BLE SUPREME COURT OF INDIA EXERCISES JURISDICTION TO HEAR

AND ADJUDICATE OVER THE MATTER UNDER ARTICLE 136 OF
THE CONSTITUTION OF INDIA 1950.

THE HON’BLE COURT HAS THE AUTHORITY TO QUASH THE DECISION GIVEN BY
THE CALCUTTA HIGH COURT.
SINCE THE MATTER IS SAME FOR ALL THE ASSESSMENT YEARS,
THE APPELLANT HAS FILED A SINGLE SPECIAL LEAVE TO APEEAL BEFORE
THE HON’BLE COURT. THE PROVISION UNDER WHICH THE
APPELLANT HAS APPROACHED THE HON’BLE COURTS
IS READ HEREIN UNDER AS:

Article 136 – Special leave to appeal by the Supreme Court

Notwithstanding anything in this chapter, the Supreme Court may, in its discretion, grant special
leave to appeal from any judgement, decree, determination, sentence or order in cause or matter
passed or made by any court or tribunal in the territory of India.

71
 STATEMENT OF FACTS

A Matrimonial bond between Shiv Kumar and Nita Kumar

The Appellant husband - Shiv Kumar and the Respondent wife – Nita Kumar were married on
2nd March 1994 according to the Hindu Rituals and traditions given in Sec. 7 of the Hindu
Marriage Act, 1955.41 The couple was registered in the office of Andaman & Nicobar Islands
42
Public Works Department according to the Sec. 8 of the Hindu Marriage Act, 1955. The
Appellant husband worked as an engineer and the Respondent wife worked as a draftsman, both
working in the island of Andaman and Nicobar. They lived in a matrimonial home together for
two years and after two years a son was born as a result of the wedlock on 24th January 1996.

II

Non Cordial Relation between the Appellant and Respondent

During this period the Appellant Husband alleged that the relation between the spouses was not
cordial ever since the marriage and that the Respondent Wife wanted to live separately with her
husband and child, thus forcing him to leave his family. The Appellant Husband also alleged that
the Respondent Wife under Sec. 13 (1) (ia)43 of Hindu Marriage Act, 1955 used to insult and
abuse him by calling him “Dhobi” and the minor child as a “Dhobi’s son”. During their
cohabitation the couple changed their residence thrice; both alleged that it was because of one
another. The Appellant Husband blamed that the Respondent Wife behaved rudely with the
landlord and the neighbours whereas the Respondent Wife alleged that firstly it was due to the

41
Section 7 of Hindu Marriage Act,1955 - Ceremonies for a Hindu Marriage.
42
Section 8 of Hindu Marriage Act, 1955 - Registration of Hindu Marriage.
43
Section 13 (1) (ia) of Hindu Marriage Act,1955 was Subs. By Act 68 of 1976, sec. 7 (a) (i), for clause (i) (w.e.f.
27-5-1976).

72
wish of the husband and secondly the rent was increased along with that the quantity of water
provided was not enough.

III

Allegations and Steps taken by the Respondent Wife

The Respondent Wife alleged that as her father worked as a “Chowkidar”, the family of
Appellant was ill-disposed towards her and often abused her for not bring enough dowry which
under Respondent wife further filed a complaint against the Appellant Husband under Sec. 498-
A44 of Indian Penal Code which was later on withdrawn45. She also levelled an allegation of
extra marital affair under Sec. 49746 of IPC with a woman working under him and as a result of it
the Appellant shouted and abused her whenever confronted. As a result of these fights the
respondent left her matrimonial home to live with her parents and it was only after an effort
made by the Appellant Husband to sent a legal notice on which she returned. In 2003 the
Respondent Wife again left her home to live with her parents and didn’t came to her matrimonial
home since.

IV

Divorce petition filed by the Appellant Husband

In 2005, the Appellant Husband filed a Divorce in Matrimonial Suit No. 27, District Court,
Andaman and Nicobar Islands. Desertion gave a firm ground to the appellant to file for divorce.
The Appellant levelled up certain grounds of cruelty and desertion under Section 13 (1)(i a) and
13 (1)(i b) of Hindu Marriage Act, 1955. After the hearing the court passed the Decree of
Divorce on 14th July 2008.

Appeal filed by the Respondent Wife

44
Section 498A of IPC - Husband or relative of husband of a woman subjecting her to cruelty.
45
Order 23 Rule 1 of CPC - Seeking permission to withdraw the suit with liberty to file a fresh suit.
46
Section 497 of IPC says- Adultery.

73
The Respondent appealed to the High Court of Calcutta – in Circuit Bench at Port Blair by the
Respondent wife in F.A. No. 003 of 2008. The Honourable court heard the spouses in chamber
for exploring whether any reconciliation was possible or not as it is the duty of the court to try to
bring the parties in conciliation under Sec. 23 (2) 47 of Hindu Marriage Act, 1955. The
Respondent Wife was ready to forget the past and live with her husband but the Appellant
Husband was against any such thing. The Court then requested the Appellant to try to solve the
problem outside the Court during the weekend so as to save the marital bond. Though Appellant
accepted the order in front of Court but did not abide to it thus failed in reconciliation and as a
result of this contempt of Court48, the Decree of Divorce was set aside by the Court.

VI

Special leave appeal by the Appellant

The Appellant Husband being aggrieved by the decision given by the High Court filed a special
leave appeal in the Honourable Supreme Court of India under Article 136 of the Constitution of
India.

47
Section 23 (2) of Hindu Marriage Act, 1955 – the duty of the court to save the matrimonial bond
48
Section 2 of contempt of court act 1971.

74
 ISSUES RAISED

I. WHETHER THE APPEAL IS MAINTAINABLE IN SUPREME COURT

OF INDIA UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA?

II. WHETHER THE RESPONDENT WIFE TREATED THE APPELLANT

WITH CRUELTY?

III. WHETHER THE APPELLANT HAD THE NECESSARY GROUND’S TO

FILE FOR A DECREE OF DIVORCE OR JUDICIAL SEPERATION?

IV. WHETHER THE APPELLANT IS ENTITLED TO A DECREE OF

DIVORCE UNDER SECTION 13 (1) (ia) OF HINDU MARRIAGE ACT,
1955 OR TO ANY OTHER RELIEF OR RELIEFS BY THE HON’BLE
SUPREME COURT OF INDIA?

75
 SUMMARY OF ARGUMENTS

I. WHETHER THE APPEAL IS MAINTAINABLE IN SUPREME COURT OF

INDIA UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA?

Firstly, the Special Leave Petitions in India holds a prime place in the Judicial System
of the country and in the present case the Appellant is against the decision given by
the Calcutta High Court and thus can appeal or file a petition in the Supreme Court of
India.

Secondly, the Article 136 itself gives power to the Supreme Court of India to grant
special leave from any judgement, decree, determination, sentence or order in any
matter made by any court or tribunal in the territory of India.

II. WHETHER THE RESPONDENT WIFE TREATED APPELLANT WITH

CRUELTY?

Firstly, the blames and abusive behaviour of wife towards her husband and her
husband’s family can be said to cause mental cruelty.

Secondly, leaving of the matrimonial house frequently without any justifying reasons
can lead to a torture or mental cruelty on the husband as well as the minor child who
needs his mother the most.

III. WHETHER THE APPELLANT HAD THE NECESSARY GROUND’S TO

FILE FOR A DECREE OF DIVORCE OR JUDICIAL SEPERATION?

76
 Firstly, the mental cruelty caused to him by the actions of the respondent wife which
includes the case filed against him under Sec. 498A49 of IPC and accusation levelled
up on him under Sec. 49750 of IPC; becomes one of the grounds for divorce under
sec. 13 (1) (ia) of Hindu Marriage Act, 1955.
Secondly, desertion by the wife of husband for the period of two years from 2003 to
2005 gave a strong ground to file for a Decree of Divorce.

IV. WHETHER THE APPELLANT IS ENTITLED TO A DECREE OF DIVORCE

UNDER SECTION 13 (1) (ia) OF HINDU MARRIAGE ACT, 1955 OR TO
ANY OTHER RELIEF OR RELIEFS BY THE HON’BLE SUPREME COURT
OF INDIA?

Firstly, the Sec. 13(1)(ia) of Hindu Marriage act, 1955 can be applicable in the case as
the husband has faced cruelty from wife and this is itself is ground provided in the act
to grant a Decree of Divorce.

Secondly, when the parties had no cohabitation for one year or more after passing of a
Decree of Judicial Separation then the petition for dissolution of marriage could be
filed.51

49
Sec. 498A of IPC Husband or relative of husband of a woman subjecting her to cruelty.
50
Sec. 497 of IPC Adultery.
51
Sec. 13 (1A) of Hindu Marriage Act,1955, Ins. by Act 44 of 1964, sec. 2(ii) (w.e.f. 20-12-1964).

77
 ARGUMENTS ADVANCED

I. WHETHER THE APPEAL IS MAINTAINABLE IN SUPREME COURT OF

INDIA UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA?

Special Leave Petitions in India (SLP) holds a prime place in the Judiciary of India,
and has been provided as a "residual power" in the hands of Supreme Court of
India to be exercised only in cases when any substantial question of law is involved,
or gross injustice has been done. It provides the aggrieved party a special permission
to be heard in Apex court in appeal against any judgment or order of any
Court/tribunal in the territory of India (except military tribunal and court martial)52

Article 136 confers a wide discretionary power on the Supreme Court to interfere in
suitable cases. Article 136 is a special jurisdiction and can be described as a
“residuary power, extraordinary in its amplitude, its limits when it chases injustice, is
the sky itself.” Article 136 is a corrective jurisdiction that vests discretion in the
Supreme Court to settle the law clear. It makes the law operational to make it a
binding precedent for the future instead of keeping it vague; as said in State of Punjab
v. Rafiq Masih (White Washer)53

As in the case, the Appellant Husband who filed for divorce on several bases in the
District Court in 2005 where the decree was passed but then the Respondent filed in
Calcutta High Court against the decision given by the lower court and as a result the
Honourable High Court gave decision in favour of the Respondent and the decree of

52
“Special Leave Petition in Indian Judicial System” (PDF),
https://www.lawsenate.com/publications/articles/special-leave-petition-slp.pdf access on 2018-11-22
53
AIR 2015 SC 1267

78
 divorce was set-aside. Hence being aggrieved by the given decision of the High Court
the Appellant has a right to file for Special Leave Appeal against the decision and
order given by the High Court of Calcutta. Thus we can say that the appeal is
maintainable in the Supreme Court of India as Article 136 itself gives power to the
Supreme Court of India to grant special leave from any judgement, decree,
determination, sentence or order in any matter made by any court or tribunal in the
territory of India.

II. WHETHER THE RESPONDENT WIFE TREATED APPELLANT WITH

CRUELTY?

Matrimonial matters are matters of delicate human and emotional relationship. It demands
mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments
with the spouse. The relationship has to conform to the social norms as well. The matrimonial
conduct has now come to be governed by statute framed, keeping in view such norms and
changed social order. Cruelty is an inhuman treatment and it is an act that causes mental
sufferings and endangers to the life and health of the other. Cruelty may be in the form of
physical as well as mental by the act either of the husband or the wife.

The biased nature of these laws is evident from that fact that unlike almost all laws in India the
burden to prove innocence lies on the accused and this means as soon as the complaint is made
by the aggrieved person/ wife, the result is that the husband and his family may be immediately
arrested and will be considered as accused in the eyes of law. According to the ‘Section 498-A’
of the ‘IPC’ the wife and her parental family can charge any or all of the husband’s family of
physical or mental cruelty but genuineness of the case has to be looked into by the court as this
section is cognizable, non-compoundable and non-bail able in nature.

Section 13 (1) (ia) of Hindu Marriage Act, 1955 reads “after the solemnisation of the marriage,
treated the petitioner with cruelty;” This section defines the term “Cruelty”, as it constitutes both

79
mental and physical cruelty. Even though the act doesn’t define mental cruelty as such, the Apex
court has in ample verdicts defined and established the grounds for mental cruelty.

In the present case, there are certain grounds on which cruelty against husband can be proved:

4. Complaint filed under Section 498A of IPC – Whoever, being the husband or the
relative of the husband of a woman, subjects such woman to cruelty shall be pun-
ished with imprisonment for a term which may extend to three years and shall
also be liable to fine. Explanation.—For the purpose of this section, “cruelty”
means—

(a) any wilful conduct which is of such a nature as is likely to drive the woman to
commit suicide or to cause grave injury or danger to life, limb or health (whether
mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing
her or any person related to her to meet any unlawful demand for any property or
valuable security or is on account of failure by her or any person related to her to
meet such demand.

In this case the wife filed a complaint against husband and the family under
Section 498A of IPC, though the complaint was later withdrawn by the wife
through Order 23 Rule 1 of CPC54. But the false complaint filed by the wife had
an ill effect on the social image of the Appellant and Appellant’s family. Thus
according to Section 499 of IPC, the Appellant raised the point of Defamation on
the basis of the complaint filed by the Respondent wife. Not only this Husband
also raised the point of defamation on the basis of false allegations levelled up by
the Respondent wife of him being in an extra marital affair55, according to her the

54
Order 23 Rule 1 of CPC - Right to an individual to withdraw the complaint filed by them.
55
Section 497 of IPC – Adultery.

80
 Appellant was in an affair with a women working under him and whenever she
confronted the Appellant shouted and abused.

But in real the Appellant was never indulged in any extra marital affair under
Section 497 of IPC, and hence the wife had no proof thus the allegations were
proven false and thus the District Court passed the Decree of Divorce.

5. Abusive and rude behaviour of the Respondent with the Appellant – the
Respondent used to insult and abuse the Husband by calling him “Dhobi” and the
minor child of them as a “Dhobi’s son.” As she did not like the family of the
Appellant she often forced him to live separately, thus the instance of the couple
changing the residence thrice occurred. The Appellant alleged that the change or
shift was due to the rude and abusive behaviour of the Respondent with the
landlords and the neighbours. This again caused a mental pressure on the husband
to constantly find new residence to live at and to bear the tantrums of the wife.

In Praveen Mehta v. Inderjit Mehta56, it has been held that mental cruelty is a
state of mind and feeling with one of the spouses due to behaviour or behavioural
pattern by the other. Mental cruelty cannot be established by direct evidence and
it is necessarily a matter of inference to be drawn from the facts and
circumstances of the case. A feeling of anguish, disappointment, and frustration in
one spouse caused by the conduct of the other can only be appreciated on
assessing the attending facts and circumstances in which the two partners of
matrimonial life have been living. The facts and circumstances are to be assessed
emerging from the evidence on record and thereafter, a fair inference has to be
drawn whether the petitioner in the divorce petition has been subjected to mental
cruelty due to the conduct of the other.

56
AIR 2002 SC 2582

81
6. Desertion – In 1997, the Respondent left the matrimonial home and started to live
with her parents without giving any reason to him and it was only after the legal
notice sent by the Appellant that she returned back to her matrimonial home; this
is one such instance where the Husband tried to save the matrimonial bond. But in
March 2003, the Respondent again left the matrimonial home to live with her
parents and has not come back since then, which gave a ground to the Appellant
to file for a Decree of Divorce. This act of the wife again had an ill effect on the
mental health of the Appellant.

82
 III. WHETHER THE APPELLANT HAD THE NECESSARY GROUND’S TO FILE
FOR A DECREE OF DIVORCE OR JUDICIAL SEPERATION?

Grounds for divorce are regulations specifying the circumstances under which a person will
be granted a divorce. Adultery is the most common grounds for divorce. Before decisions on
divorce are considered, one might check into state laws and country laws for legal divorce or
separation as each culture has stipulations for divorce. Cruel and inhuman treatment
constitute as grounds for divorce.

There are several grounds available on which the Appellant filed for Judicial Separation or
Decree of Divorce:

1. Section 13 (1) (ia) of Hindu Marriage Act, 1955. – The mental cruelty that was
inflicted upon the Appellant by the actions of the Respondent is one of the strong
ground on which the Appellant filed for the Decree of Divorce or Judicial Separation.
As due to the acts of the Respondent the Appellant is not in a condition to continue
living with the wife.

In Vinita Saxena v. Pankaj Pandit57, “it has been ruled that as to what constitutes
mental cruelty for the purposes of Section 13(1)(ia) will not depend upon the
numerical count of such incident or only on the continuous course of such conduct
but one has to really go by the intensity, gravity and stigmatic impact of it when
meted out even once and the deleterious effect of it on the mental attitude necessary
for maintaining a conducive matrimonial home.”

In Savitri Pandey v. Prem Chandra Pandey58 the Court stated as under: "Mental
cruelty is the conduct of other spouse which causes mental suffering or fear to the
matrimonial life of the other."Cruelty", therefore, postulates a treatment of the
petitioner with such cruelty as to cause a reasonable apprehension in his or her mind

57
AIR 2006 SC 700471

58
AIR 2002 SC 480291

83
 that it would be harmful or injurious for the petitioner to live with the other party.
Cruelty, however, has to be distinguished from the ordinary wear and tear of family
life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be
adjudged on the basis of the course of conduct which would, in general, be dangerous
for a spouse to live with the other."

2. Section 499 of Indian Penal Code – Defamation.—“Whoever, by words either spoken

or intended to be read, or by signs or by visible representations, makes or publishes
any imputation concerning any person intending to harm, or knowing or having
reason to believe that such imputation will harm, the reputation of such person, is
said, except in the cases hereinafter expected, to defame that person.” In this case the
Appellant can file for the Decree of Divorce on these grounds that due to the actions
of the wife the reputation and image of the Appellant was harmed. There are two such
instances which can prove this ground valid.

Firstly, when the wife filed complaint against the husband and the family under
Section 498A of IPC, and later withdrew it, this instance hampered the image and
reputation of the husband and the family in the society as they were seen with those
peeking eyes of society where they were meant to feel guilty of abusing the wife.

Secondly, when the wife levelled up false accusations on the Husband, of him being
in an extra marital affair with a women working under his office, under Section 497
of IPC. Then this act of the wife again proved harmful for the reputation of the
Husband as he was blamed for breaking of the marriage and so. Due to both such
instances the trust and respect that is much needed in any relationship was hampered
forcing the Appellant to file for Judicial Separation.

Thus there are ample of grounds available with the Appellant on what bases the
Appellant can file the suit to get a decree of divorce.

84
 IV. WHETHER THE APPELLANT IS ENTITLED TO A DECREE OF DIVORCE
UNDER SECTION 13 (1) (ia) OF HINDU MARRIAGE ACT, 1955 OR TO ANY
OTHER RELIEF OR RELIEFS BY THE HON’BLE SUPREME COURT OF
INDIA?

The Appellant has filed case under Section 13 of the Hindu Marriage Act, 1955 and
according to the facts and law cases stated above the Appellant shall be granted the
Decree of Divorce.

Under section 21 B of Hindu Marriage Act, 1955 – Special provision relating to trial and
disposal of petitions. According to this section the trial for the petition must be done with
practical consistent to provide justice. Thus accordingly, the Appellant demands the same
from the Honourable Supreme Court of the country to give justice to the Appellant by
passing the Decree of Divorce.

Under section 10 of Hindu Marriage Act, 1950 – Judicial separation “Either party to a
marriage, whether solemnized before or after the commencement of this Act, may present
a petition praying for a decree for judicial separation on any of the grounds specified in
sub-section (1) of section 13, and in the case of a wife also on any of the grounds
specified in sub-section (2) thereof, as grounds on which a petition for divorce might
have been presented.” In the present case the Appellant wants the Honourable Supreme
Court to give judgement keeping in mind the stated section of Hindu Marriage Act.

Other relief that the Appellant demands is that the demand of the Respondent of
Maintenance under Section 125 of CrPC shall be denied by the court as the husband had
not done any cruelty with the wife but it was he on whom the cruelty was inflicted. In a
case, Sanjay Sudhakar Bhosale vs Khristina W/O Sanjay Bhosale59 “The Bombay High
court said that the principle adopted is that- though strict proof of cruelty is not required
in maintenance under CrPC 125, nevertheless the statements made by wife need to have
some supporting evidence at least.” Thus according to this case it was stated that without
any proof of cruelty the wife cannot claim for the maintenance. Thus the Appellant

59
AIR 2008 Bombay High Court

85
requests the Honourable Court to not give the order to the Husband to give maintenance
to the wife as she is a working women and can take care of herself and that even the son
lives with the Appellant thus she cannot ask for maintenance for him either.

Thus according to all the sections stated above the Honourable Supreme Court shall grant
the decree of Divorce to the Appellant as it will be near impossible for the Appellant to
cohabit with the Respondent as under Section 13 (1) (ia) of Hindu Marriage Act, 1955 the
mental cruelty inflicted upon the Appellant by the Respondent had affected the mental
health of the Appellant and also has cause much problem to the son of the Appellant and
the Respondent as he was of tender age when such instances began to occur and as the
son stayed with the Appellant he knows it in much better way that how leaving of the
Respondent had ill effect on the mental health of the child. Thus it is the request of the
appellant to grant the decree of divorce to the Appellant so that no further damage could
be caused to both the Husband and the Son.

Other than this the court shall give the child’s custody to the husband as the mother left
the child in tender age when he needed his mother the most, thus as it is already proven
that the mother does not care for the child the final custody shall also be given to the
father as he has been a single parent for the children during the desertion period by the
wife.

And lastly the other relief the husband seek is that all the false accusations levelled up
against the husband shall be declared false by the court so that he can lead a happy and
respectful life in the society.

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 PRAYER

Therefore in the light of the arguments advanced, authorities cited and facts mentioned, the
Honourable Court may be pleased to adjudicate by issuing the appropriate writ, discretion, order
or judgement. Certain reliefs that the Appellant wish for from the Honourable Supreme Court are
as follows;

1) Passing of the Decree of Divorce which the High Court of Calcutta set aside.
2) Custody of the son shall be in the favour of the Appellant.
3) The accusations of the wife shall be proved false by the Honourable Supreme Court.

And any other relief that the honourable court may be pleased to grant in the
interests of justice, equity and good conscience.

All of which is humbly submitted.

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COURT
COUVISIT CASES
CCCOURT

ccoutsrj

COU

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 PROJECT PROPOSAL-2018-2019
PUBLIC INTEREST LITIGATION
CASES OBSERVED DURING
COURT VISIT

Particulars of Visit

Name : District and Session Court

Location : Collectrate, Bani park, Jaipur

Date Time Day

04-12-2018 11:00 -01:00 pm Tuesday
16-02-2018 11:00 am-01:00 pm Friday

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Case1

Name of the Court Learned Court of Senior Civil Judge and Chief Metropolitan
Magisterate,Jaipur Metropolitan

Name of the Presiding Officer Justice Arvind Kumar Jangid

Case No. 906/18
Date 22.10.18
Name of the Case Rajasthan State v Janaknam Meena
Subject Matter Case filed regarding the theft of a Hero Honda bike whose no. is
RJ 14 DA 8303
Observations After hearing charge arguments, charge of the same offence
was framed in writing separately. Charge was record over and
explained to the accused. Both the APP and the advocate from
the accused side were present in the court. The arguments for
the future conversation. Charges fixed over the accused in this
argument and the file was adjourned for the next proceeding.
Sections covered U/S 379 of IPC,1860

Case 2

Name of the Court Learned Court of Senior Civil Judge and Chief Metropolitan
Magisterate ,Jaipur Metropolitan

Name of Presiding Officer Justice Praveen Kumar

Case No. 3030/11
Date 07.06.2013
Name of the Case Sarkar v Ismael Khan
Subject Matter Ismael Khan s/o Noorhasan was found with a mobile phone
having two sim cards ,one of them was of Pakistan.He had
many devices like pendrive ,computer with team viewer
software,and everytime he used to increase his visa limit .So all
this evidence tells that Ismael Khan was involved in terrorist
activites.
Observations The case is yet to be completed and many more witnesses are
yet to be turned up for their respective statements in the
coming days.
Sections covered U/S 3.3/9 of Official Secret Act

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Case 3

Name of the Court Learned Court of Senior Civil Judge and Chief Metropolitan
Magisterate ,Jaipur Metropolitan

Name of Presiding Officer Justice Puroshottam Lal Saini

Case No. 8364/18
Date 31.07.18
Name of the Case Sarkar v Manoj Singh and Others
Subject Matter The case is regarding a fight between two Hindu neighbours
regarding property in which minor is harmed.
Observations The case is yet to be completed and many more witnesses are
yet to be turned up for their respective statements in the
coming days.
Sections covered U/S 341 Of IPC

Case 4

Name of the Court Learned Court of Senior Civil Judge and Chief Metropolitan
Magisterate ,Jaipur Metropolitan

Name of Presiding Officer Justice Bhajay Godara

Case No. 37520/17
Date 21.08.18
Name of the Case Sarkar v Pradeep Soni
Subject Matter Pradeep Soni and his relatives loaned some amount against
jewellery from Shri Ram Union City Finance Ltd. , but after
sometime the installments cheque bounced and later on it
came into observance of the company that the jewellery was
artificial and not of the said carat.The company filed a case
against Pradeep Soni and others regarding Fraud.
Observations The case is yet to be completed and many more witnesses are
yet to be turned up for their respective statements in the
coming days.
Sections covered U/S 420,406,120B of IPC

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 PART-F
BIBLIOGRAPHY

The given matter has been taken from the following websites:

 www.google.com
 www.indiankanoon.org
 www.legalcrystal.com
 www.supremecourtcases.com
 www.kanoon.com
 www.lawschoolnotes.wordpress.com
 www.manupatra.com

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