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IN THE COURT OF FAMILY COURT A T B OMBAY , DISTRICT

COURT

Case Concerning
The Hindu Marriage Act, 1955

DR. N.G. DASTANE. (APPELLANT)


VS.
MRS S. DASTANE......... (RESPONDENT)

ON SUBMISSION TO THE HONBLE DISTRICT COURT OF

BOMBAY

MEMORIAL ON BEHALF OF THE RESPONDENT

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TABLE OF CONTENTS

1.

INDEX OF AUTHORITIES

II

2.

LIST OF ABBREVIATIONS

3.

STATEMENT OF JURISDICTION

VI

4.

STATEMENT OF FACTS

VII

5.

QUESTIONS PRESENTED

VIII

6.

SUMMARY OF ARGUMENTS

7.

Arguments Advanced

8.

Prayer

02
03 -7
8

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INDEX OF AUTHORITIES

JUDICIAL DECISIONS:

Henderson v. Henderson, 1994 (1) A.C 49

Ganta Nagamani v. Ganta Lakshman Rao, 1992(1) H.L.R. 626 at p. 632


(A.P.).

STATUTORY AND OTHER AUTHORITIES:

The Hindu Marriage Act, 1955.

The Indian Evidence Act, 1872.

Code of Civil Procedure, 1903.

BOOKS REFERRED:
DIWAN PARAS, MODERN HINDU LAW

SHRIVASTAVAS ON HINDU LAW

DICTIONARIES REFERRED:

BLACKS LAW DICTIONARY (West Group Publishers, 2002)

THE LAW LEXICON, BAKSHI, P. M., Ashoka Law House, New Delhi.

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SITES REFERRED:

MANUPATRA.COM

SCC ONLINE.COM

JUDIS.NIC

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LIST OF ABBREVIATIONS
A.C.
A.I.R.
Ed.
Cr.LJ

Appeal Cases
All India Reporter
Edition
Criminal Law Journal

L.R.

Law Report

Vol.

Volume

Q.B.

Queens Bench

V.

Verses

Ors.

Others

Schizo
Dr.

Schizopherina
Doctor

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STATEMENTS OF JURISDICTION
The petitioner and respondent have submitted the present dispute before this Honble
court under sec (10) (b)1, 12(1) (c)2 and 13(1) (c)3.this memorandum sets for the facts,
and an argument on the presents case.

1 Judicial separation under sec10 (1) (b) - 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-sec (1) of sec 13, and in the case of wife also on any of the grounds
specified in sub-sec (2) thereof, as grounds on which a petition for divorce might have been presented.
2 Nullity of marriage under sec 12 (1) (c), voidable marriages, that the consent of the petitioner, or
where the consent of the guardian in marriage of the petitioner was required under sec 5 as it stood
immediately before the commencement of the Child Marriage Restraint Act, 1978, the consent of such
guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or
circumstance concerning the respondent.
3 Divorce, under sec 13 of Hindu Marriage Act 1955- Any marriage solemnized, 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, (c) has been incurably of unsound mind, or
has been suffering continuously or intermittently from mental disorder of such a kind and to such an
extent that the petitioner cannot reasonably be expected to live with the respondent.

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STATEMENT OF FACTS

1.

In April, 1956 parents of the respondent arranged her marriage


with the appellant. But before finalizing the proposal, respondents
father wrote two letters to the appellant's father saying in the first
of these that the respondent "had a little misfortune before going to
Japan in that she had a bad attack of sunstroke which affected her
mental condition for some time". In the second letter which
followed at an interval of two days, "cerebral malaria" was
mentioned as an additional reason of the mental affectation. The
respondent's father asked her appellant's father to discuss the
matter, if necessary, with the doctors of the Mental Hospital or
with one Dr. P.L. Deshmukh, a relative of the respondent's mother.

2.

The marriage was performed at Poona on 13.5.1956. The appellant


was then 27 and the respondent 21 years of age.

3.

On 1.11.1956 the appellant was transferred to Poona where the


two lived together till 1958. During this period a girl named
Shubha was born to them on 11.3.1957. On 21.3.1959 the second
daughter, Vibha, was born.

4.

As stated earlier, the third daughter, Pratibha, was born on


19.8.1961. On 15.12.1961 the appellant wrote to respondent's
father stating that he had decided to go to the court for seeking
separation from the respondent. The proceedings out of which this
appeal arises were instituted on 19.2.1962.

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QUESTIONS PRESENTED

I.
WHETHER THE RESPONDENT WAS OF UNSOUND MIND AND THE CONSENT OF THE
MARRIAGE WAS OBTAIN BY FRAUD?

II.
WHETHER THE APPELLANT CAN CLAIM JUDICIAL SEPARATION?
III.
WHETHER THE RESPONDENT WAS ACTUALLY THE PATIENT OF SCHIZOPHERNIA AS
APPELLANT CLAIM?

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SUMMARY OF ARGUMENTS

1. There was no fraud from the side of the respondent because the
petitioner had decided to marry the respondent after fully considering the
facts.

2. The appleant can not claim judicial seperation because there was not
condonation of curetly from husband side therefore divorce suit is not
maintainable.

3. Respondent was not suffering from schizophernia because she had a


high educational qualification and was serving in central goverment
service and the claim of appleant was incorrect.

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ARGUMENTS ADVANCED
ISSUE 1: WHETHER

THE RESPONDENT WAS OF UNSOUND MIND AND THE

CONSENT OF THE MARRIAGE WAS OBTAIN BY FRAUD?


UNSOUND MIND DEFINITION-

A person of unsound mind is an adult who from infirmity of mind is incapable


of managing himself or herself in daily affairs. The term, therefore, includes
insane persons.

Section 12 of Indian Contract Act, 1872 tells us what a sound mind for
entering into a contract is. It lays down that, "A person is said to be of sound
mind for the purpose of making a contract if, at the time when he makes it he is
capable of understanding it and of forming a rational judgment as to its
effects upon his interest."

At the time of consent of the marriage, the respondent was of sound mind, and
was always of sound mind, even the doctors of Yervada Mental Hospital said
that the respondent was of sound mind, so therefore we can conclude from the
inferences respondent was of sound mind, and had no mental problems there
on.
The respondent was of sound mind, as when she was treated for sunstroke, at
Yeravada Mental Hospital, the doctors said she was of sound mind, and
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therefore she was cured of sunstroke and malaria, and sunstroke is not a
communicable disease, and it is curable in India, even malaria is not a
communicable disease and has no side effects on brain and heart.

FRAUD:
Fraud consists of some deceitful practice or willful device, resorted to with
intent to deprive another of his right, or in some manner to do him an injury.
As distinguished from negligence, it is always positive, intentional.
Fraud in this case means obtaining consent, by giving some false or wrong
information which never existed to other party for some positive good. The
respondent father and the respondent had not committed fraud, and moreover
the consent was obtained by free, where the appellant and his father have
considered in that respect
The consent of the marriage was not obtained by fraud, as respondents father
had sent two letters to appellants father, in first one it was stated, that the
respondent had a bad attack of sunstroke which affected her mental condition
for some time. In second letter it was stated which was send after two day gap,
in which cerebral malaria was mentioned as an additional reason for mental
affection, it also stated that she was cured at the Yeravada Mental Hosptital,
and she is cured now, the appellant agreed and gave a positive consent to that.
The father of the respondent asked appellants father, if necessary to discuss
the matter with the doctors of the hospital or Dr. P.L Deshmukh.

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ISSUE 2: WHETHER THE APPELLANT CAN CLAIM JUDICIAL SEPARATION?


Judicial Separation under Section 10, Of the Hindu Marriage Act, 1955 reads-(1) 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.
(2) Where a decree for judicial separation has been passed, it shall no longer be
obligatory for the petitioner to cohabit with the respondent, but the court may,
on the application by petition of either party and on being satisfied of the truth
of the statement made in such petition, rescind the decree if it considers it just
and reasonable to do so.
Now considering the section 13 of The Hindu Marriage Act, 1955, certain
points be illustrated-1) Any marriage solemnized, whether before or after the commencement of the
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 solemnization of the marriage had voluntary sexual
intercourse with any person other than his or her spouse; or
(i)(a) Has, after the solemnization of the marriage, treated the petitioner with
cruelty; or
(i)(b) Has deserted the petitioner for a continuous period of not less than two
years immediately preceding the presentation of the petition; or

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(ii) Has ceased to be a Hindu by conversion to another religion


Now focusing on the sub section (1) (b) it found that
There should be separation of 2 years, before filing of the suit, as they last
resided together on 27.2.1961, and the suit was filed on 19.2.1962, which is
accurately one year, therefore the appellant was is not able to claim judicial
separation, as they had a separation of 1 year, and the condition says that,
they should not live for 2 years before the preceding of the suit, so in this case,
the appellant cannot claim judicial separation.
(A) Condonation of cruelty from the appellant
It is a well settled proposition of the law that the term condonation used in this connection,
consist of two parts. Firstly what it amounts is that there should be forgiveness4 on part of the
other party who has been at a wrong by sexual lapse and the second aspect of the matter is
that after such forgiveness there should be reinstatement of the parties together in their marital
life.
The view expressed in Henderson v. Henderson5, with regard to implications of condonation is
as follows
Condonation involves forgiveness confirmed or made effective by reinstatement. The essence
of the matter is taking the case where it is, the wife who has been guilty of matrimonial offence
that the husband with knowledge of the wifes offence should confirm his forgiveness by
reinstating her as his wife.
A similar view has been expressed in Ganta Nagamani v. Ganta Lakshman Rao6
As the respondent was guilty of cruelty, there was condonation of cruelty from the appellant, as
even after facing cruelty from the respondent, both the respondent and the appellant had normal
sexual life, i.e cohabitation. Even on the last date, 27.2.1961, when they lived together for the
last time, the respondent was 3 months pregnant, so the main thing and the main proof of
condonation, is sexual intercourse, so in this regard, there was condonation from the appellant.
Shrivastava on Hindu Law
6 Q. B. 288
6 AIR 1992 AP 76
4

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Further from this we can infer that, as there was cruelty from the respondent,
but there was condonation from cruelty from the appellant, so we can conclude
that the divorce suit was not maintainable.

ISSUE 3: WHETHER THE RESPONDENT IS ACTUALLY THE PATIENT OF


SCHIZOPHRENIA WHICH APPELLANT CLAIM?

Page 26 of file which was the history sheet of the respondent maintained in the
Yerawada mental hospital where the word schizo was recorded by Dr.
Mujawar which was not sufficient to show that the respondent was in fact
suffering from schizophrenia.
And Dr. Kelkar of the mental hospital also admits that when a person moves in
society as well dressed passes examination and is in the government service
that person cannot be called as a patient of schizophrenia .she has also passed
M.A. in feb1964 and she is now in the employment of the central government
service so these facts leads that the claim of appellant was wrong.

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PRAYER

For the foregoing reasons respondent respectfully request this Honble court to:
As there was no fraud on part of the respondent, and it is therewith
proved

that

respondent

was

not

of

unsound

mind,

there

was

condonation of cruelty form the appellant, moreover it does not amount


to judicial separation
Hence it must set aside the earlier decision or pass any other further order(s),
as this Hon'ble Court may deem fit and proper under the circumstances of the
case, in the interest of equity, justice and good conscience.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

(COUNSEL ON BEHALF OF RESPONDENT)

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