MOOT COURT COMPETETION

PANJAB UNIVERSITY, CHANDIGARH

BEFORE

THE FAMILY COURT OF CHANDIGARH

SAURABH SHARMA ...…………………………….(PETITIONER)

VERSUS

GEETA BULANI …………………………………….(RESPONDENT)

MEMORIAL ON BEHALF OF THE RESPONDENT

RIYA SONI
BALLB( HONS.)

ROLL NO: 99/20

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 TABLE OF CONTENTS

Table of Abbreviations................................................................................ 3

Index of Authority ………………………………………………………4-5

Statement of Jurisdiction………………………………………………..6

Statement of Facts................................................................................…7

Issues Raised .......................................................................................... 8

Summary of Arguments………………………………………………9

Arguments Advanced........................................................................... 10-16

Issue:-1…............................................................................................ 10-12
Issue:-2… .............................................................................................. 13-16

Prayer..................................................................................................... 17

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 TABLE OF ABBREVIATIONS

AIR ALL INDIA REPORTER

U/S UNDER SECTION
HC HIGH COURT
Hon’ble HONORABLE
HMA HINDU MARRIAGE ACT

SEC SECTION
SC SUPREME COURT
SCC SUPREME COURT CASES
V. VERSUS
WLR WEEKLY LAW REPORTS
J. JUSTICE
HP HIMACHAL PRADESH
ALL ALLAHABAD
CWN CALCUTTA WEEKLY NOTES
MP MADHYA PRADESH
LW LAW WEEKLY

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 INDEX OF AUTHORITIES

List of Cases

 Kusum V. Kampta AIR 1965 All 280

 Romesh V. Savitri AIR 1995 SC 851
 Spatami V. Jagdish AIR 1969 (87) CWN 502
 Mary V. Raghvan AIR 1979 MP (40)
 SmitranRober V. Sophia 2001(3) LW 649
 Navin Kohli V. Neelu Kohli AIR 2006 SC 675
 Monika Sharma V. Kuldeep Kumar Dogra 2015 SCC Online HP 856
 Vijay Kumar Ramachandran Bhate V. Neela Vijay kumarBhate 2003 (6) SCC 334

LIST OF BOOKS

 Dr. Paras Diwan’s Family Law, twenty fouth Edition

 Mulla Hindu Law by Sir Dinshaw Fardunji Mulla, Twenty First Edition
 Mayne Hindu Law and Uses, Seventeenth Edition
 Kusum Family Law Lectures, Family Law- I by Professor Kusum, Fifth Edition
 Dr. Paras Diwan, Law of Marriage and Divorce, fifth edition

LIST OF WEBSITES

 http://www.manupatrafast.com
 http://www.lexisnexis.com
 http://www.indiankanoon.org
 http://www.scconline.com

LEXICON

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  Aiyar, P Ramnathan, The Law Lexicon, (2nd edition 2006)
 Catherine Soanes, Oxford Dictionary Thesaurus, 40th Edition 2006, Oxford University
 Collin’s Gem English Thesaurus, 8th Edition 2016, Collins
 Garner Bryana, Black’s law Dictionary, 7th Edition 1981, West Group

STATUTES
 Hindu Marriage Act, 1955
 Family Courts Act, 1984

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 Statement of Jurisdiction

The petitioner in the present case has approached the hon’ble Family Court of chandigarh under
section 7 of the Family Courts Act, 1984. The respondent most humbly and respectfully submits
to the jurisdiction of the hon’ble court in the present matter.

____________________________________________________________________________

Section 7 in The Family Courts Act, 1984:

7. Jurisdiction.-

1) Subject to the other provisions of this Act, a Family Court shall-"

(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any
law for the time being in force in respect of suits and proceedings of the nature referred to in the explanation; and

(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case
may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.

Explanation.-The suits and proceedings referred to in this sub-section are suits and proceedings of the following
nature, namely:-

(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the
marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or
judicial separation or dissolution of marriage

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 Statement of Facts

1. Saurabh (herein referred to as petitioner) met with Geeta (herein referred to as respondent) on
11.01.2016. Both fell in love with each other & started living in a live-in relationship in Mohali.

2. In November, 2017 they decided to get married with the consent of Petitioner’s parents only.
Anyhow, when parents of the respondent came to know, they decided to marry their daughter
with the petitioner with pomp and show, again on 29.06.2018.

3. The marriage between the petitioner & the respondent took place but respondent was unable
to adjust with her in-laws in Patiala because they treated her with cruelty.

4. On 17.01.2019, the respondent filed an affidavit and got it notarized, that she wants to separate
herself from the petitioner and wanted her dowry articles back from her in-laws. Moreover, she
did not want to claim any alimony or maintenance and that on the expiration of statutory period
of one year they will file a petition for divorce by mutual consent U/S – 13- B of HMA, 1955.

5. After expiry of seven to eight months the respondent returned back to the petitioner on verbal
settlement as petitioner stated that they will leave separate from his parents.

6. They lived together and a child named Hitansh was born on 17.11.2021. After the birth of
child situation became worst. Respondent alone had to manage everything and petitioner treated
her with cruelty by continuous taunting.

7. Thus respondent left the matrimonial home on 18.01.2022 and is living with her parents. Since
then, the respondent is not living with them however meet the child in every 15 days.

8. Petitioner had filed petition u/s. 9 of HMA, 1955

9. Respondent claims maintenance u/s. 24 of HMA, 1955

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 Issues Raised

1. WHETHER THE PETITIONER IS ENTITLED FOR RESTITUTION OF

CONJUGAL RIGHTS AGAINST RESPONDENT?

2. WHETHER RESPONDENT IS ENTITLED FOR INTERIM MAINTENANCE

UNDER HMA, 1955?

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 Summary of Arguments

ISSUE 1. WHETHER THE PETITIONER IS ENTITLED FOR RESTITUTION OF

CONJUGAL RIGHTS AGAINST RESPONDENT?

It is humbly submitted to the Hon'ble Family Court, Chandigarh that there exist reasonable

excuse to justify the living of Respondent away from Petitioner. In the petition, the grounds

given by the plaintiff are lies and the petitioner and his parents caused mental cruelty to the

respondent which became the reason for leaving the matrimonial home. The time span during

she lived in her matrimonial home, she remained stressed. After verbal agreement when they

started living together petitioner forced her to agree to live with his parents even they treated her

with cruelty. Thus petitioner is not entitled for restitution of conjugal rights against respondent

u/s 9 of HMA, 1955.

ISSUE 2. WHETHER RESPONDENT IS ENTITLED FOR INTERIM MAINTENANCE

UNDER HMA, 1955?

It is humbly submitted to the Hon’ble family court that respondent have no source of income and

is unable to maintain herself. At present she depends upon her father who lives on his retirement

money. Thus she is entitled for interim maintenance u/s 24 of HMA, 1955.

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 Arguments Advanced

Issue 1. Whether petitioner is entitled for restitution of conjugal rights against respondent?

It is humbly submitted before the hon’ble court that there were sufficient and reasonable
grounds with the family court to pass a decree of restitution of conjugal rights in favour of the
petitioner. The petitioner filed a petition under Section 9 of The Hindu Marriage Act,
1955 against his wife (Sushil Kumari). The section reads as:
It is humbly submitted before the hon’ble court that there were sufficient and reasonable
grounds with the family court to pass a decree of restitution of conjugal rights in favour of the
petitioner. The petitioner filed a petition under Section 9 of The Hindu Marriage Act,
1955 against his wife (Sushil Kumari). The section reads as:
It is humbly submitted before the hon’ble court that there were sufficient and reasonable
grounds with the family court to pass a decree of restitution of conjugal rights in favour of the
petitioner. The petitioner filed a petition under Section 9 of The Hindu Marriage Act,
1955 against his wife (Sushil Kumari). The section reads as:
It is humbly submitted before the hon’ble court that there were sufficient and reasonable
grounds with the family court to pass a decree of restitution of conjugal rights in favour of the
petitioner. The petitioner filed a petition under Section 9 of The Hindu Marriage Act,
1955 against his wife (Sushil Kumari). The section reads as:
It is humbly submitted before the hon’ble court that there were sufficient and reasonable
grounds with the family court to pass a decree of restitution of conjugal rights in favour of the
petitioner. The petitioner filed a petition under Section 9 of The Hindu Marriage Act,
1955 against his wife (Sushil Kumari). The section reads as:
It is humbly submitted before the hon’ble court that there were sufficient and reasonable
grounds with the family court to pass a decree of restitution of conjugal rights in favour of the
petitioner. The petitioner filed a petition under Section 9 of The Hindu Marriage Act,
1955 against his wife (Sushil Kumari). The section reads as:
It is humbly submitted before the hon’ble court that there are no grounds to pass a decree of
restitution of conjugal rights in favour of the petitioner.

1.1 Reasonable excuse for withdrawal from society

Sec 9 reads as.

Restitution of Conjugal Rights: When either the husband or the wife has, without reasonable
excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the
district court, for restitution of conjugal rights and the court, on being satisfied with 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.
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 Explanation- Where a question arises whether there has been a reasonable excuse for
withdrawal from society, the burden of proving a reasonable excuse shall be on the person who
has withdrawn from the society

For the purpose of obtaining decree under section 9 HMA, the following ingredients must be
fulfilled which are:-

1. There must be valid marriage between the parties.

2. The respondent have withdrawn from the society of petitioner without reasonable excuse.

It is submitted that withdrawal from the society of the petitioner, by respondent means cessation
of cohabitation by a voluntary act of the respondent. The word "society" in Section 9 has the
same meaning as "cohabitation". Cohabitation means living together as husband and wife, that is
to say, the spouses are fulfilling their matrimonial duties.

It has been seen earlier that even if it is established that the respondent has deserted the
petitioner, but if there is a "reasonable cause" for desertion, the petition for divorce or judicial
separation on that basis will fail. Similarly, a petition for restitution of conjugal rights will fail, if
it is established that the respondent has withdrawn from the society of the petitioner, where there
is a reasonable excuse for doing so.

It is submitted that the meaning of both the expressions, "reasonable cause" and "reasonable
excuse" is the same. In the modern matrimonial law, it will amount to reasonable excuse or
reasonable cause :

(a) If there exists a ground on which, the respondent can claim any matrimonial relief 1

Himansu v. Tapati2 wife-respondent can take up any ground as defence which falls under
Section 18(2), Hindu Adoptions and Maintenance Act, 1956.

(b) If the petitioner is guilty of any matrimonial misconduct, not amounting to ground for a
matrimonial relief, yetsufficiently weighty and grave

In Jogindra v. Shivacharan3 it was held that Husband's insistence that wife must live with his
parents amounts to reasonable excuse.

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In Robindra v. Pramial4 persistent nagging of wife by husband's parents is reasonable cause for
withdrawal from society of husband.

The Counsel on behalf of respondent carefully submits that there has been reasonable excuse for
withdrawal from society

____________________________________________________________________

1. Pushpa v. Vijay, 1994 All 216 (cruelty)

2. 1995 Cal 110

3. 1965 J & K 9

4. 1979 Ori. 85

1.2 cruelty

Cruelty is not defined under this Act but it maybe defined as willful and unjustifiable conduct of
such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a
reasonable apprehension of such a danger.

1.1 The wife has been faced to cruelty by the husband and In-laws:

Mental cruelty is given as a ground to seek divorce under section 13 of the Hindu Marriage Act,
1955. In the present case the respondent/wife wants to seek divorce on the ground of cruelty. She
had been subjected to a serious mental cruelty by the husband and his family.
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In Kusum v. Kampta1, Beg, J., observed that false accusations of adultery or unchastity have
special dimension in Hindu society where a woman cherishes her chastity more than anything
else. A wife may tolerate other things but not the accusation of adultery.

It has been held in many cases that false accusation of unchastity of adultery constitute cruelty.
The wife has been accused constantly of the commission of adultery. The mother-in-law and the
brother-in-law used to nag the respondent/wife regarding her relation with her friend Rohan.
Mother-in-law told her younger son to keep an eye on the respondent/wife which clearly proves
their doubts and ill-thoughts about the respondent/wife. Even the petitioner/husband constantly
kept questioning the respondent/wife about the same which led to such a great effect on the mind
of the respondent/wife that all the physical relations between the petitioner/husband and the
respondent/wife had ceased.

These repeated allegations by the mother-in-law, brother-in-law, and the petitioner/husband

caused mental cruelty to the respondent/wife. The respondent/wife had been isolated by the
whole family and there was no emotional support even by the petitioner/husband. Any woman
would expect her husband/petitioner to stand with her in all mental, physical as well as emotional
problems. The petitioner/husband never took a stand for the respondent/wife even if it was the
matter of her career. The respondent/wife is a literate and an educated person who wanted to
work after her marriage but her mother-in-law never let her do that. The petitioner/husband
wanted the wife to work but, never tried to talk about this to his mother. This shows the lack of
emotional and mental support by the petitioner/husband. The marriage is emotionally as well as
physically dead.

In Romesh v. Savitri2, the court said that the marriage was dead emotionally and practically and
the continuance of the marriage alliance for name sake was prolonging the agony and affliction.
In such a case it was better to dissolve the marriage.

The petitioner/husband’s lack of affection towards therespondent/wife can be easily understood

from the fact that he slapped her just because she denied him to give her the mobile phone. This
slap again proves the doubts and allegations of adultery that the petitioner/husband made against

2
AIR 1995 SC 851

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the respondent/wife. The slap was not just a normal temperament but the consequence of all the
ill-thoughts, nagging, questioning and doubting the chastity of the respondent/wife.

The English courts have taken the view that the act constituting cruelty should be aimed at the
petitioner (respondent in the present case) and if an act is aimed directly at the petitioner, even in
the absence of the desire to injure or to inflict misery, it will amount to cruelty. Thus, a display of
temper, emotion or perversion, giving vent to one’s feelings, may amount to apprehension
thereof, to health, life or limb.

Acts of physical violence on the part of one spouse against the other resulting in injury to the
body, limb or health or causing a reasonable apprehension thereof have been traditionally
considered to amount to cruelty.

In the present case, the slap by the husband has causedreasonable apprehension to the mental
health of the wife.

In Spatami v. Jagdish3, where the husband constantly abused and insulted wife and ultimately
one day, in her father’s house, pushed her against the wall, was also a clear case of physical
cruelty.

In Mary v. Raghwan4 it was held that a single act of violence may amount to cruelty or it may be
a series of small acts which together constitute cruelty.

In the present case the wife had been clearly treated with mental as well as physical cruelty, and
not just once or in one manner but many times and in different manners.

3
(1969) 87 CWN 502
4
AIR 1979 MP 40 (Case under Special Marriage Act)

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Issue 2. Whether having a secret friendship can amount to extra marital affair?

It is humbly submitted before this hon’ble Court that the mere fact that the respondent/wife was
having a friendship which was hidden from the petitioner/husband does not amount to adultery.
Adultery is given as a ground for divorce under section 13 (1) (ia) of the Hindu Marriage Act,
1955. The section states about adultery as follows:

Section 13: (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) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person
other than his or her spouse.

Nobody has attempted to define adultery but it has a fairly established meaning in matrimonial
law. It mean consensual sexual intercourse between a married person and a person (whether
married or not) of the opposite sex not being the other’s spouse. This means that the spouse must
have had sexual intercourse with any person other than the spouse. One of the essential elements
of adultery is sexual intercourse. Adultery pre-supposes a carnal union between a man and a
woman. Some penetration, however brief, must take place.

In the present case there is no instance of the respondent/wife having sexual intercourse with any
person. She has been suspected of adultery only on the ground that she had friendship with a boy
named Rohan who is an old friend of the respondent/wife. She had just hidden the fact of this
friendship from her husband/petitioner as she was dejected due to the reason that she was not
allowed to work after her marriage despite several requests from her. Being an educated person,
the wife was desperate to work and knew the importance of working for both the genders. She
was not allowed to work only because she was a woman. This denial of working will stimulate
any woman, who wants to make her career, to feel depressed knowing that in spite of having so

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 much of knowledge and determination to work she will have to spend her entire life sitting back
at home. Therefore, the respondent/wife started distancing herself from her in-laws which was a
normal reaction to her worries and disappointment. Even after noticing this distance the
petitioner/husband never tried to talk his wife or mother about this and never provided her the
emotional support that she needed. Respondent/She was lonely and mentally shaken due to
which she needed someone to share her problems with. Therefore, she had to confide in Rohan
to share her problems and thoughts. Respondent/she didn’t tell the petitioner/husband about her
friendship with Rohan which was a natural consequence of the distance which had arisen
between the couple.

There had been no instances of sexual intercourse between the respondent/wife and her friend to
prove the commission of adultery.

In SumitranRober v. Sophia5, it was urged that the standard of proof of adultery required in a
criminal case cannot be applied for the proceedings in matrimonial cases and the petitioner who
alleged adultery is only required to prove the allegations by preponderance of probability. It
cannot be disputed that the allegations as to the adultery have to be proved by preponderance of
probability but it has to be necessarily stated that it is well established that the petition for
divorce on the charges of adultery should not be allowed merely on suspicion and doubts
expressed by the party approaching the court.

In the present case the petitioner/husband has no strong grounds to prove the commission of
adultery. He has approached the Court on his mere doubt and suspicion of the
respondent’s/wife’s friendship with her friend. It would be unjust to give him the benefit of the
doubt and thus declare a friendship between two persons as the commission of adultery. This will
not only demean the relationship of friendship but will also defame the respondent/wife.

1.1 Respondent cannot be expected to live without mental agony, distress or torture:

False allegations of the commission of adultery cause mental agony and distress and torture to
the mind of the respondent/spouse who is facing such allegations. This results in cruelty against
the spouse. Cruelty can be either physical or mental. This is mental cruelty and as stated earlier
cruelty is a ground for seeking divorce under section 13 (1) (i) of the Hindu Marriage Act, 1955.
5
2001 (3) LW 649

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In the case of Naveen Kohli v. Neelu Kohli6 it was held that the conduct complained of should be
grave and weighty so as to come to the conclusion that the petitioner (respondent in this case)
spouse cannot be reasonably expected to live with the other spouse. It must be something more
serious than ordinary wear and tear of married life. The conduct must be of the type to satisfy the
conscience of the Court that the relationship between the parties had deteriorated to such extent
due to the conduct of the other spouse that it would be impossible for them to live together
without mental agony, torture or distress, to entitle the complaining spouse to secure divorce.
Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language
leading to constant disturbance of mental peace of the other party.

The insults inflicted upon the respondent/wife by the mother-in-law, brother-in-law and the
petitioner/husband regarding her having an illicit relationship with her friend are really
disturbing for the mental peace of any woman who cherishes her character. It is not the ordinary
wear and tear of a married life to place such serious allegations on the wife which disrespect and
question her character. All the statements passed by the in-laws upon the wife are demoralizing
and mental cruelty. Thus, these allegations are serious enough to constitute a ground to claim
divorce. The respondent/wife cannot be expected to be living with a spouse and a family who
keeps questioning her character and nagging her about the same every now and then.

In Monika Sharma v. Kuldeep Kumar Dogra 7, while deciding the divorce matter wherein
repeated false and frivolous allegation of adultery were made by the appellant against the
respondent, a bench of Sanjay Karol, J., held that the said allegations were made out of
vengeance and were unverified and unsubstantiated. The Court further held that the false
allegations of adultery made by the appellant have affected the respondent’s reputation in the
society, thus amounting to cruelty.

In the present case the petitioner/husband has made such false allegations of adultery against the
respondent/wife which are made out of vengeance and are unverified. Just on the mere doubt that
the petitioner/husband had against the respondent/wife he started questioning the
respondent/wife and stopped all physical relations. He even went to the extent of slapping the
wife. Neither the petitioner/husband ever tried to talk to the wife regarding the same nor the in-

6
AIR 2006 SC 1675
7
2015 SCC OnLine HP 1856

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laws. Without having any knowledge or any proof they started nagging the respondent/wife and
even started keeping an eye on her which is mentally disturbing for a person. Without even an
iota of knowledge of the truth the petitioner/husband filed a suit against the respondent/wife
claiming that she is having an extra marital affair with her friend and this extra marital affair is
harming the reputation of the family in the society. The petitioner/husband never cared about the
reputation of the respondent/wife which got affected due to the filing of such a baseless
allegation. This has certainly affected the mental health as well as the reputation of the
respondent/wife which amounts to mental cruelty.

In Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate 8 it was noted that conscious and
deliberate statement delivered with pungency placed on record through pleadings cannot be
ignored lightly or brushed aside while determining acts of cruelty in a petition for divorce. It was
held that leveling disgusting accusations of unchastity and indecent familiarity with a person
outside wedlock and allegations of extra marital relationship is a grave assault on the character,
honour, reputation, status as well as the health.

The petitioner/husband and his entire family had been accusing the respondent/wife of serious
allegations of extra marital affair, unchastity and indecent familiarity with a person outside
wedlock who is Rohan. This has been going on since a long time and the seriousness of these
accusations can be noted by the fact that the petitioner/husband ceased all the physical relations
with the respondent/wife and even slapped her just because he doubted that she was talking over
the phone to some boy. All these incidents are clearly mental cruelty and thus, a ground to seek
divorce.

8
(2003) 6 SCC 334

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 PRAYER

WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED

AND AUTHORITIES CITED, IT IS HUMBLY REQUESTED THAT THIS HON’BLE
COURT MAY BE PLEASED TO ADJUDGE AND DECLARE:

 To allow the decree of divorce in favour of the respondent

 To allow the decree of divorce under section 13B of the Hindu Marriage Act if the
appellant consents to do so.

AND MAY PASS ANY SUCH ORDER, OTHER ORDER THAT IT DEEMS FIT IN THE
INTEREST OF JUSTICE, EQUITY AND GOOD CONSCIENCE.

AND FOR THIS, RESPONDENT AS IN DUTY BOUND SHALL HUMBLY PRAY.

RESPECTFULLY SUBMITTED BY

COUNSELS ON BEHALF OF THE RESPONDENT

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