BEFORE THE HON’BLE DISTRICT COURT, MOHALI

CIVIL CASE NO. …………/2019

IN THE MATTER OF

DR. MANSHER SINGH…..…………………………………………......PETITIONER

VERSUS

SUNIDHI SINGH……………………………………………………......RESPONDENT

BEFORE SUBMISSION TO

THE HONOURABLE DISTRICT COURT, MOHALI

PARUL AGGARWAL

ROLL NO: 212/15

CLASS: BCOM LLB(D)

GROUP: D4

MEMORANDUM ON BEHALF OF THE RESPONDENT

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 TABLE OF CONTENTS

S. NO. PARTICULARS PAGE NO.

1. LIST OF ABBREVIATIONS 03

2. INDEX OF AUTHORITIES 04-05

3. STATEMENT OF JURISDICTION 06

4. STATEMENT OF FACTS 07-08

5. STATEMENT OF ISSUES 09

6. SUMMARY OF ARGUMENTS 10

7. ARGUMENTS ADVANCED 11-18

8. PRAYER 19

2
 LIST OF ABBREVIATIONS

S.NO ABBREVIATIONS FULL FORM

1. Ed. Edition

2. & And

3. AIR All India Reporter

4. v. Versus

5. Hon’ble Honourable

6. SC Supreme Court

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 INDEX OF AUTHORITIES

TABLE OF CASES:

 Arjun Singhal v. Pushpa Karwel AIR 2003 MP 189.

 Yudhishthir Singh Vs. Smt. Sarita [AIR 2002 Raj. 382].
 Savitri Pandey v. Prem Chandra Pandey (2002) 2 SCC 73.
 Ramchander v. Ananta (2015) 11 SCC 539.
 Bimla and others Vs Anita 2015(3) RCR (Civil) 153 (SC).
 Shri Rajinder Kumar Mishra Vs Shrimati Richa AIR 2005 All 379.
 Tejbir Singh v. Baljit Kaur 2018 SCC Online P&H 1682.
 Smt. Sunita Jain and others vs. Mittar Sain Jain and another (2003) 133 PLR 641.

STATUTES REFERRED:

1. THE HINDU MARRIAGE ACT, 1955

2. THE HINDU MINORITY AND GUARDIANSHIP ACT, 1956

BOOKS REFERRED:

 Dr. Paras Diwan- “Modern Hindu Law”, 18th ed. 2007, Allahabad Law Agency,
Faridabad (Haryana).
 Mayne John D. - “Hindu Law & Usage”, 14th ed. 1998, Bharat Law House, New
Delhi.
 Agarwala R.K. - “Hindu Law”, 21st ed. 2003, Central Law Agency, Allahabad.
 Mulla’s- “Hindu Law” by Sir Dinshaw Fardunji Mulla, 23rd ed. Lexis Nexis, Butter
Worths, New Delhi.

WEBSITES REFERRED:

➢Manupatra Online Resources, http://www.manupatra.com.

➢Lexis NexisAcademica, http://www.lexisnexis.com/academica.

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➢Lexis Nexis Legal, http://www.lexisnexis.com/in/legal.

➢SCC Online, http://www.scconline.co.in.

➢Oxford Dictionary, http://www.oxforddictionaries.com

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 STATEMENT OF JURISDICTION

It is humbly submitted that the Hon’ble District court of Mohali has jurisdiction to hear the
instant matter under section 19 of the Hindu Marriage Act, 1955.

Section 19 in The Hindu Marriage Act, 1955

Court to which petition shall be presented. Every petition under this Act shall be presented to
the district court within the local limits of whose ordinary original civil jurisdiction—

(i) the marriage was solemnised, or

(ii) the respondent, at the time of the presentation of the petition, resides, or

(iii) the parties to the marriage last resided together, or

[(iiia) in case the wife is the petitioner, where she is residing on the date of presentation of
the petition, or]

(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the
respondent is, at that time, residing outside the territories to which this Act extends, or has
not been heard of as being alive for a period of seven years or more by those persons who
would naturally have heard of him if he were alive.]

 Jurisdiction of the Court: If a marriage is solemnised at a place within the municipal

limit and the party reside there only, the family Court would have exclusive
jurisdiction to deal with case. The case cannot be transferred to district court on a
ground that the husband resides outside the limits of municipal corporation as held in
the case Arjun Singhal v. Pushpa Karwel1.

Hence the District Court of Mohali has full jurisdiction to try this matter as the
marriage was solemnized in Mohali and the respondent still resides in the said area.

1
AIR 2003 MP 189.

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 STATEMENT OF FACTS

 That Dr. Mansher Singh, a resident of Mohali, was a very intelligent and hardworking
person. He belonged to a middle class family. He was a Junior Resident in AIIMS,
New Delhi. He liked Sunidhi, who was also resident of Mohali. She was extremely
beautiful but was just a matriculate. Dr. Mansher Singh married Sunidhi in February,
2012 according to Sikh rites.
 That being at AIIMS, due to heavy patient intake, Dr. Mansher Singh had long
working hours. He occasionally came to meet Sunidhi and also seldom attended to her
calls.
 That in matrimonial home there lived a distant cousin of Mansher named Balveer,
who worked in a Pharma Company in Baddi. Balveer and Sunidhi became friends and
used to spend long hours together once Balveer was back from office.
 That in the meantime, Dr. Mansher got fellowship for super specialisation at Mumbai,
and he left for his post doctoral studies. Sunidhi insisted on going with him, but he
refused to take her stating that his parents were alone at home.
 That Sunidhi left the matrimonial house in August 2013 and filed a petition for
restitution of conjugal rights. The Court allowed the petition of Sunidhi and ordered
Dr. Mansher to take her along to Mumbai.
 That after arranging for a reasonable accommodation, Dr. Mansher took his parents
and Sunidhi to Mumbai in December 2013. Sunidhi used to talk on mobile with
Balveer.
 That after approximately a year, Sunidhi and Mansher were blessed with a baby girl.
The child was majorly taken care of by the Grandmother. Sunidhi was not taking
good care of the child and she was mostly on the phone. After celebrating her first
birthday, Sunidhi alongwith the baby came back to Punjab without informing Dr.
Mansher and her in laws.
 That when Dr. Mansher called her, she did not attend to his call and rather a SMS
sharing her bank details asking him for transferring a sum of Rs. 20000 monthly for
the daughter’s care and maintenance. Dr. Mansher leaving his very important

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 assignment in between came to Mohali, Punjab to get her back. Heated arguments
turned into a quarrel between the two but no solution was worked out.
 That initially for 3 months, Dr. Mansher sent RS. 10000/- in Snidhi’s but thereafter
stopped.
 That in August 2018, when Dr. Mansher came to attend a Conference at PGI,
Chandigarh, he went to meet Sunidhi and his daughter. He was very happy to see his
daughter who was almost 3.5 years now. The child was with the maid who looked to
be very untidy. He tried to mix with the child but the baby did not. When Sunidhi
returned home with Balveer, seeing this Mansher felt very disturbed and he
immediately asked for his child’s custody to which Sunidhi bluntly refused.
 That thereafter, within a week, Dr. Mansher filed a petition for divorce and for
custody of the child.

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 STATEMENT OF ISSUES

ISSUE 1

 WHETHER THE HUSBAND IS SUFFERING FROM

MENTAL CRUELTY OR NOT UNDER SECTION 13(1)(ia)
OF THE HINDU MARRIAGE ACT, 1955?

ISSUE 2

 WHETHER THE CHILD CUSTODY SHOULD BE GIVEN

TO THE HUSBAND OR NOT?

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 SUMMARY OF ARGUENTS

 WHETHER THE HUSBAND IS SUFFERING FROM MENTAL

CRUELTY OR NOT UNDER SECTION 13(1)(ia) OF THE HINDU
MARRIAGE ACT, 1955 .
It is humbly submitted before this hon’ble Court that the petitioner filed a petition for
divorce when he felt disturbed i.e. on the basis of mental Cruelty under Section 13
clause(1)(ia) of the Hindu marriage Act, 1955. The respondent i.e., wife doesn’t want
to take divorce and want to live with her husband as well.
And the petitioner is not suffering from any mental Cruelty because every
matrimonial conduct, which may cause annoyance to the other, may not amount to
cruelty. It is submitted that the husband felt disturbed after seeing his wife with
Balveer but as it was mentioned in the facts itself that they were just friends and there
is nothing on record to prove that there were any unhealthy relationship between the
Balveer and Sunidhi.

 WHETHER THE CHILD CUSTODY SHOULD BE GIVEN TO

THE HUSBAND OR NOT.
It is submitted before this hon’ble Court that the husband took his parents and his wife
to Mumbai in December 2013. After a year, they were blessed with a baby girl.
It is further contended that the custody of the child should be with the mother only.
Because their daughter was almost 3.5 years old. And for the welfare and upbringing
of the minor daughter, the mother has better custody rights than father.
Further it is contended that she is entitled to receive a sum of Rs. 20,000
monthly just for the daughter’s care and maintenance. Because as he was working in
AIIMS, Delhi and he was earning good. So, he was able to fulfill all needs of the child.
As in the facts it was mentioned that the husband sent Rs. 10,000 for initially 3 months

10
 only and thereafter he stopped. It is stated that the child custody should remain with
the mother only.

ARGUMENTS ADVANCED

ISSUE 1 :WHETHER THE HUSBAND IS SUFFERING FROM MENTAL

CRUELTY OR NOT UNDER SECTION 13(1)(ia) OF THE HINDU
MARRIAGE ACT, 1955 .

It is submitted that the petitioner filed a petition for divorce when he felt disturbed i.e. on the
basis of mental Cruelty under Section 13 clause(1)(ia) of the Hindu marriage Act, 1955.

 It is submitted before the hon’ble Court that the respondent i.e., wife doesn’t want to
take divorce and want to live with her husband as well.
 And the petitioner is not suffering from any mental Cruelty because every
matrimonial conduct, which may cause annoyance to the other, may not amount to
cruelty.

Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life,
may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety,
which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-
violent. To constitute cruelty, the conduct complained of should be "grave & weighty" so as
to come to the conclusion that the petitioner spouse cannot be reasonably expected to live
with the other spouse. It must be something more serious than "ordinary wear & tear of
married life".

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.

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.

Divorce in general means the breakage or dissolution of marriage with the help of law,
so that one can leave his or her spouse and become free from marital duties.

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Cruelty In Eyes Of The Court:

There are various grounds for claim on basis of cruelty and types of cruelty, which are
identified by the courts in their various judgements, and the courts provide a legal backup for
the sufferer in this sense. They have given following explanation within the scope of cruelty
under section 13(1)(ia);

· It is sufficient that if the cruelty is of such type that it becomes impossible for spouses to
live together,

· The leveling of false allegation by one spouse about the other having alleged illicit relations
with different persons outside wedlock amounted to mental cruelty,

· A husband cannot ask his wife that he does not like her company, but she can or should stay
with other members of the family in matrimonial home. Such an attitude is cruelty in itself on
the part of the husband,

· Social torture by anyone of the spouses to the other, found to be as the mental torture and
cruelty.

· If the intention to harm, harass or hurt could be inferred by the nature of the conduct or
brutal act complained of, cruelty could be easily established. But the absence of intention
should not make any difference in the case. The cruel treatment may also result from the
cultural conflict between the parties.

· A party can cause mental cruelty when the other spouse levels an allegation that the
petitioner is a mental patient, or that he requires expert psychological treatment to restore his
mental health.

 It has further been contended that the filing of application under Section 9 of the Act
for restitution of conjugal rights shows that the wife is ready to perform her
matrimonial relation but instead the husband had filed the petition for divorce.

In Savitri Pandey v. Prem Chandra Pandey2, 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

2
(2002) 2 SCC 73.

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with such cruelty as to cause a reasonable apprehension in his or her mind 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."

 Further the wife has filed a suit for restitution of conjugal rights under Section 9 of the
Act, which shows that she was always ready to live with the husband . And the Court
allowed the petition of his wife and ordered the husband to take her along to Mumbai.

In the case of Yudhishthir Singh Vs. Smt. Sarita3

FACTS:

The marriage between the appellant-Yudhishter Singh and Sarita was solemnised on 9-12-
1990 at Jodhpur. After one year of the marriage, i.e. on 13-4-1992, Sarita had to file an
application for restitution of conjugal rights in the Family Court at Jodhpur. She averred that
her husband, who was posted as Junior Engineer at Village Gotan was depriving her the
company. She was kept at the ancestral house at Mandore instead at Gotan. He used to visit
on weekend. Whenever she made a request to take her to Gotan, it was rejected on the ground
that her father did not meet the demand of Scooter and Rs. 11,000/- in cash. The efforts made
by the relatives to drop the demand of Scooter and payment of cash did not succeed. She was
asked to leave the house. The husband did not make any effort to bring her from her parents'
house.

On the contrary with a view to contract a second marriage strategies were evolved including
securing a decree for divorce. It is also alleged that whenever she visited her matrimonial
home, she was not being accepted and sent back. The husband in his written statement denied
the allegations. The husband sought a decree for dissolution of marriage on the ground of
cruelty. The instances of cruelty have been enumerated in the order of the learned Judge,
Family Court, as follows: -

· The wife used to insist him to live separately in the locality known as Paota. She was not
willing to stay with his parents. In order to mount pressure on him, on some pretext or the
other, she used to stay at her parental house;

3
[AIR 2002 Raj. 382].

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· In spite of the information she did not attend the marriage in the family of his aunt on 23-
11-91;

· On 5-4-91 she visited his place of working at Gotan, threatened and mentally tortured him
with a view to obtain a decree for divorce;

· In his absence (while he used to be at Gotan) she used to stay at her parents' house instead
of matrimonial home. She used to visit the matrimonial home only on the week end.

· It is stated by the husband that after marriage in December, 1990 the wife started quarrelling
with him in February, 1991. She was not prepared to stay in the joint family. Therefore, she
insisted for separate residence in the locality known as Paota. She also refused to stay with
him at the place of his posting at Gotan. It is also stated that she used to mostly stay at her
parents' house. It is further stated that he used to visit Jodhpur on the weekend and she also
used to visit the matrimonial home only on the week end. He has further stated that on 4-2-91
she left the matrimonial home along with her brother. Thereafter, when his elder brother
Naresh and Bhabhi went to take her back she refused to accompany them saying that she was
not in a mood to return.

Judgement:

The statement of husband does not find corroboration from the statement of his brother
Naresh Chandra. He gave evasive reply denying knowledge as to the fact of insistence for
separate house. The allegations made by the husband on this count are vague. They are not of
conclusive nature.

There is evidence on record to show that the husband and his family members made a
demand for the dowry stated above.

As regards, the instance of not attending the marriage in the family of his aunt, cannot be
construed as cruelty in absence of evidence as to the exact relation, persuasion and obligation
to attend the marriage. It is the case of the husband himself that he used to visit his house at
Jodhpur only on weekend. If he was so keen to keep his wife at her matrimonial home, he
could have taken her to Gotan the place of his working. A husband cannot ask his wife that
he does not like her company, but she can or should stay with other members of the family in
matrimonial home. Such an attitude is cruelty in itself on the part of the husband.

Therefore court had dismissed the appeal of the husband.

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  It is submitted that here the wife insisted on going with him but he refused to take
her stating that his parents were alone at home. Even though he didn’t want to
spend the time with his wife.
 He was not so keen to keep his wife with him because he refused to take her at his
working place stating that his parents were alone that amounts the disinterest on the
part of the husband.

In the case of Ramchander v. Ananta4, the SC has again held that instances of cruelty are
not to be taken in isolation but cumulative effect of facts and circumstances emerging from
evidence on record and then drawing a fair inference whether plaintiff has been subjected to
mental cruelty due to conduct of other spouse has to be culled out.

 It is submitted that the husband felt disturbed after seeing his wife with Balveer but as
it was mentioned in the facts itself that they were just friends and there is nothing on
record to prove that there were any unhealthy relationship between the Balveer and
Sunidhi.
 Moreover, she didn’t attend his calls doesn’t show that she doesn’t want to live with
him. An isolated incident is not evident to ascertain this.

From the above facts and arguments, it is proved that wife always wanted to live
with him and under Section 13clause(1)(ia) of the Act that the wife has treated the husband
with mental cruelty is not found proved.

4
(2015) 11 SCC 539.

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ISSUE NO. 2: WHETHER THE CHILD CUSTODY SHOULD BE GIVEN
TO THE HUSBAND OR NOT?

It is submitted before this hon’ble Court that the husband took his parents and his wife to
Mumbai in December 2013. After a year, they were blessed with a baby girl.

 It is further contended that the custody of the child should be with the mother only.
Because their daughter was almost 3.5 years old. And for the welfare and upbringing
of the minor daughter, the mother has better custody rights than father.

Section 6 of the Natural Guardians of a Hindu Minor:-

The natural guardian of a Hindu minor, in respect of the minor's person as well as in respect
of the minor's property (excluding his or her undivided interests in joint family property), are-

(a) in the case of a boy or an unmarried girl-the father, and after him, the mother-provided
that the custody of a minor who has not completed the age of five years shall ordinarily
be with the mother;

(b) in the case of an illegitimate boyar an illegitimate unmarried girl-the mother, and after
her, the father;

(c) in case of a married girl-the husband:

Provided that no person shall be entitled to act as the natural guardian of a minor under the
provisions of this section-

(a) if he has ceased to be a Hindu; or

(b) if he has completely and finally renounced the world by becoming a hermit (Vanaprastha)
or an ascetic (Yati or Sanyasi).

Explanation.- In this section, the expressions "father" and "mother" do not include a step-
father and a step-mother.

In the case of Bimla and others V Anita5

Custody of the minor : Mother is the best person to bring up her minor son and to effectively
take care of his interest and in indeed, the welfare of the child lies with his mother.

5
2015(3) RCR (Civil) 153 (SC).

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Further, it is contended that the minor is a female child and it will be in the best interest of the
child if she is in the custody of the mother

In the case of Shri Rajinder Kumar Mishra Vs Shrimati Richa6

It was Held by SC that – It is well settled that welfare of the minor child is of paramount
consideration while deciding the dispute about the custody. If the custody of the father cannot
promote the welfare of the minor child equally or better than the custody of the mother then
he should not be allowed to the custody as the same may adversely affect the welfare of the
child.

In the Case of Tejbir Singh v. Baljit Kaur7, the High Court of Punjab & Haryana has
reiterated the settled law that the custody of a child below 05 years of age (especially a
female child), would naturally lie with the mother.

In the instant case, the petitioner and the respondent were married to each other with the
daughter having been born thereafter, but the respondent wife had allegedly withdrawn from
the society of the petitioner.

The Respondent wife in the case was aggrieved by the fact that the custody of the minor child
was taken away from the respondent from her parental village.

The High Court of Punjab & Haryana primarily relied on Supreme Court’s judgment in the
case of Smt. Sunita Jain and others vs. Mittar Sain Jain and another8, wherein it was
held that the custody of a child below 05 years of age (especially a female child), would
naturally lie with the mother, and therefore the deemed custody would be with the mother
even if actual custody was with the father.

In case of a child below 5 years of age, to mean that the custody is to be given to mother
only.

 It is humbly submitted that the husband tried to mix with the child but the baby did
not. This shows that she was comfortable with her mother only. As a minor child is
more attached with mother than father. Soo keeping this thing in mind, it is stated that
the child custody should not be given to the husband.

6
AIR 2005 All 379.
7
2018 SCC Online P&H 1682.
8
(2003) 133 PLR 641.

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Further it is contended that she is entitled to receive a sum of Rs. 20,000 monthly just for the
daughter’s care and maintenance. Because as he was working in AIIMS, Delhi and he was
earning good. So, he was able to fulfill all needs of the child. As in the facts it was mentioned
that the husband sent Rs. 10,000 for initially 3 months only and thereafter he stopped.

 From the above arguments, it is stated that welfare of the child is the paramount
consideration and the child custody should remain with the mother only as she was
also below the age of 5 years old.

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 PRAYER

Wherefore in the light of issues raised, argument advanced, reasons given and authorities
cited this Hon’ble Court may be pleased to:-

 That the husband is not suffering from mental cruelty and the divorce petition for the
same should not be entertained under section 13 clause (1)(ia) of the said Act.
 That the child custody should not be given to the husband.

And pass any order that this Hon’ble Court may be pleased to pass in the light of justice,
equity and good conscience.

All of which is most humbly and respectfully submitted

Mohali Sd/-

Dated 19.11.2019 Counsel for the respondent

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