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Rajiv Gandhi School Of Intellectual Property Law, IIT Kharagpur 1

RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW, IIT KHARAGPUR

BEFORE THE HONOURABLE HIGH COURT OF RAJASTHAN

APPEAL No.-____/2014
UNDER ARTICLE 227(1) OF THE CONSTITUTION OF INDIA, 1950

In the matter of,

Appellant: Vandana (Smt.)

Versus

Respondent: Suresh Charan

Respondent Represented By Counsel: Debashish Dash, Counsel Id: 14IP60012

MEMORIALON BEHALF OF THE RESPONDENT

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Rajiv Gandhi School Of Intellectual Property Law, IIT Kharagpur 2

TABLE OF CONTENTS

A) LIST OF ABBREVIATIONS ........................................................................................IV


B) ACT/RULES/STATUTES REFERRED .............................................................................VI
C) BOOKS REFERRED.................................................................................................VI
D) CASES REFERRED ................................................................................................ VII
STATEMENT OF JURISDICTION ............................................................................... VIII
STATEMENT OF FACTS ............................................................................................... 9
ISSUES RAISED ......................................................................................................... 11
SUMMARY OF ARGUMENTS .................................................................................... 12
ARGUMENTS ADVANCED ....................................................................................... 12
[1] That, the respondent is justified to get divorce under section 13 of
Hindu Marriage Act, 1955 as he has been kept in dark about the
mental disorder of the appellant for six long years which rendered
the marriage a non-consummated one .

[2] That, the Trial Court proved the veracity of the charges of mental
illness of the appellant by carefully examining pertinent medical
documents and witnesses, so the presence of mental sickness
cannot be challenged and it’s on record that the appellant did not
bring the doctors who were treating her to refute the charges and
also did not appear herself to give testimony.

[3] That , the question of filing petition after inordinate delay has no
rationality as far as this case is concerned, where the appellant
hardly stayed for four to six days with the respondent, giving him
no opportunity to start doubting. Hence, this allegation should be
certified baseless.

[4] That, the propagation of argument that she was non-aggressive

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cannot be in favor of the anyone because mere suffering of those


kinds of mental illness makes her straight out uninterested for
discharging matrimonial duties, in the absence of which it is
absolutely fair to assume that the other party is not expected to
live with such a lunatic person. Hence divorce decree should be
granted as per section 13(iii) of Hindu Marriage Act.

PRAYER ......................................................................................................................... 13

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List of Abbreviations

1. AIR - All India Reporter

2. Art. - Article

3. O.J.R. - Other Journal Reporter

4. HMA. - Hindu Marriage Act, 1955

5. Hon’ble - Honorable

6. Ors. - Others

7. Mad. - Madras

8. P&H - Punjab and Haryana

9. Raj - Rajasthan

10. SC - Supreme Court of India

11. SCC - Supreme Court Cases

12. V - Versus

13. Vol. - Volume

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A) Act/Rules/Statutes Referred

Constitution of India, 1950


List of Statutes
1. Hindu Marriage Act, 1955.
2. The Code of Civil Procedure, 1908.

B) Books Referred

S.NO. AUTHOR & TITLE OF THE BOOK

1. Modern Hindu Law, Dr.Paras Diwan (Twentieth Edition,2011)

Cases and Materials on Family Law,Kusum(Universal Law


2.
House,2010)

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C) Cases Referred

PAGE
S.NO. CASE LIST
NO.

I. Tarlochan Singh v. Jit Kaur, AIR 1986 P&H 379 11

II. Ram Narain Gupta v. Rameshwari Gupta, AIR 1988 SC 11,12


2260

III. Alka Sharma v. Chandra Sharma, AIR 1991 MP 205 11

IV. L. Hemalatha v. N.P. Jayakumar, AIR 2008 Mad 98 11

Pankaj Mahajan vs Dimple @ Kajal, 2011 (2) O.J.R. 715


V. 12
(S.C.)

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STATEMENT OF JURISDICTION

The respondent accepts the jurisdiction of the Honorable High Court of


Rajasthan, invoked by the Petitioner under Article - 227 of the Constitution of
India coupled with Sec.100(1) of Civil Procedure Code .

The respondent most humbly and respectfully submits to the jurisdiction of the
Honorable High Court of Rajasthan. .

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STATEMENT OF FACTS

Factual Background:

1. On 6th December 1994, One Suresh Charan (Respondent) got married to


one Ms Vandana(Appellant) and the marriage was solemnized in
accordance with Hindu Marriage Act,1955.

2. It was alleged that even during the marriage the appellant had no control
over her body and was not in a position to perform saptpadi. She was given
few tablets during the time when the rites were being carried out.

3. Thereafter, the marriage was not being consummated as she hardly stayed
with the respondent for four days. Even during that brief period her behavior
and conduct was very abnormal and talks were irrelevant.

4. After about six years, the appellant was brought to her in-law’s village,
where she allegedly used derogatory words towards her husband in
presence of many people and this incident was known to the whole village,
which, in totality, led to a conclusion that she was suffering from mental
disorder. It was also admitted by the brother that she was suffering from
mental sickness and that she was undergoing some treatment for the said
reason.

5. Thereafter the husband filed a divorce petition which was resisted by the
appellant at that time, citing some reason alluding to the wrong on the part
of the defendant that he didn’t try for taking his spouse from her parental
home as he was preparing for some competitive examinations.

6. It was also alleged that after the marriage, the respondent was

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unemployed for six years and was preparing for competitive test and only
after clearing the Rajasthan Administrative Services Examination, he started
disliking her and tried to marry a more attractive girl, apart from allegedly
passing satirical remarks to the appellant for not bringing enough dowries to
the husband’s house.

7. The husband, then, sought an amendment to the petition to include the


ground to challenge the marriage itself, as he alleged that his wife was mad
at the time of marriage itself and hence the marriage be declared void due
to concealment of material fact under section-12 of Hindu Marriage Act,
1955. But, this was not allowed by the court as it rightly pointed out the time
barred provision of section-12.

8. Then, however, the Trial court advanced with the divorce petition, and as
the trial continued the wife was found to be suffering from mental disorder
and schizophrenia, as opined by the medical board. Thereafter, considering
facts and evidences, the court granted the decree of divorce.

HENCE, THE PRESENT CASE IS FILED B EFORE THIS H ONORABLE


C OURT.

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ISSUES RAISED

I. Whether mental illness of such a kind which leads to non


consummation of marriage inevitably becomes a ground for divorce?

II. Whether the subjectivity of "ascertaining if someone can be expected


to live with his or her mentally ill spouse or not", becomes paramount
while deciding a divorce decree?

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SUMMARY OF ARGUMENTS

[5] That, the respondent is justified to get divorce under section 13 of


Hindu Marriage Act, 1955 as he has been kept in dark about the
mental disorder of the appellant for six long years which rendered
the marriage a non-consummated one .

[6] That, the Trial Court proved the veracity of the charges of mental
illness of the appellant by carefully examining pertinent medical
documents and witnesses, so the presence of mental sickness
cannot be challenged and it’s on record that the appellant did not
bring the doctors who were treating her to refute the charges and
also did not appear herself to give testimony.

[7] That , the question of filing petition after inordinate delay has no
rationality as far as this case is concerned, where the appellant
hardly stayed for four to six days with the respondent, giving him
no opportunity to start doubting. Hence, this allegation should be
certified baseless.

[8] That, the propagation of argument that she was non-aggressive


cannot be in favor of the anyone because mere suffering of those
kinds of mental illness makes her straight out uninterested for
discharging matrimonial duties, in the absence of which it is
absolutely fair to assume that the other party is not expected to
live with such a lunatic person. Hence divorce decree should be
granted as per section 13(iii) of Hindu Marriage Act.

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ARGUMENTS ADVANCED

ISSUE I

I. Whether mental illness of such a kind which leads to non


consummation of marriage inevitably becomes a ground for divorce?

1. The Respondent (husband) is entitled to obtain the decree of divorce


because of the mental illness as per Hindu Marriage Act, 1955.

1. The rationale behind having section 13(1) (iii) in the statute book of
Hindu Marriage Act is to give relief to the plaintiff if the other party is of
unsound mind. In a case where the disease of schizophrenia had been
deliberately concealed from the husband at the time of marriage, the
husband was within his legal right under section- 13(1) (iii) to move the
court for a decree of dissolution of marriage, if not for annulment of the
said marriage.1

2. Though the reasoning that “mere branding of a mental illness like


schizophrenia is not sufficient to make a compelling ground for
divorce”2 is fully maintainable, we should also make it amply clear that
“the schizophrenic person can be of such a type that his or her
abnormal and erratic behavior may make him or her unfit for being a
life partner”3, which in turn leads to an unsatisfactory non-
consummation of marriage.

3. However, the medical expert opinion cannot be disputed citing some


conjecture by the defendant, unless fails to disprove that. And, “such
1
Tarlochan Singh v. Jit Kaur, AIR 1986 P&H 379
2
Ram Narain Gupta v. Rameshwari Gupta, AIR 1988 SC 2260
3
Alka Sharma v. Chandra Sharma, AIR 1991 MP 205
4
L. Hemalatha v. N.P. Jayakumar, AIR 2008 Mad 98

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a medical testimony being the evidence of experts would not leave


the court from the obligation of satisfying itself on the point in issue
beyond reasonable doubt”4. Hence, the pleading by the appellant-
defendant to not rely the medical board evidence is completely
frivolous.

4. Now, this Honorable court would be fully justified to draw any adverse
inference against the defendant because of her non- appearance in
the witness box. Moreover, no satisfactory explanation has been
forwarded for her absence; hence, the court cannot prove the extent
and degree of her mental disorder.
ISSUE II

(II) Whether the subjectivity of "ascertaining if someone can be


expected to live with his or her mentally ill spouse or not", becomes
paramount while deciding a divorce decree?
1: The respondent is fully within law to get divorce decree as the he
cannot reasonably be expected to live with sick women as per
section 13 HMA, 1955.
1. As per the language used in section 13(1)(iii), when lunacy gets
juxtaposed with unreasonable expectation to live with a mentally
sick person, then it undoubtedly becomes a ground for divorce, as
the marital obligations are not performed in such a condition and
cohabitation becomes extinct.

2. Though cruelty was not meted out to the respondent as such, the
very ground that she was not living with the her husband and after
six years insulted him in his village for whatsoever reason, even if not
knowingly, amounts to unkindness and mental suffering on part of
the husband, who may get relief by obtaining a decree of divorce 5.

3. Inordinate delay to submit the divorce petition, as argued by the

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appellant, would be far from truth as the respondent was not given
any chance to raise doubt or check the medical condition himself
to establish the facts. The paternal family’s stand on this question
should raise many eyebrows as their stand hasn’t been consistent;
at one time they accepted the mental disorder but were making a
volte-face in the court putting objection to the expert medical
opinion.

4. Therefore, the situation at hand amounts to “mental disorder of


such a nature that the husband is justified to have reasonable
apprehension that it would not be possible or safe for the
defendant to live with such a schizophrenic spouse and hence a
ground for divorce”6.
3

PRAYER

Wherefore in the light of the facts stated, issues raised, authorities


cited and pleadings advanced, it is most humbly prayed before this
Honorable Court that it may be graciously pleased to:

1. Kindly dismiss the appeal by the defendant who wants to rescind the
divorce decree given by the Trial Court under Hindu Marriage Act.

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

5
Pankaj Mahajan vs Dimple @ Kajal, 2011 (2) O.J.R. 715 (S.C.)
6
Ram Narain Gupta v. Rameshwari Gupta, AIR 1988 SC 2260

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Respectfully Submitted on behalf of the


respondent

Debashish Dash

Counsel No. 14IP60012

Counsel for the


respondent

Date: 26th August 2014

Place: IIT, Kharagpur

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