PETITIONER SIDES

1ST SPEAKER- May it please this Hon’ble Court, this is counsel __ appearing along with my
co-counsels ___, __ and ____ on behalf of the appellant in the case concerning Vinod v Shilpa.
The counsel for the petitioner has three contentions to submit before this Hon’ble Court. Hope
the lordship is well versed with the facts of the case. With your lordships’ kind permission may
the counsel move on to her contentions.
With these humble submissions, the counsel would like to call Mr__ , to deal with the other
contentions.

It is humbly submitted before the Hon’ble Court that the present petition is maintainable.
Marriage under all matrimonial laws is union imposing upon each of the spouses certain marital
duties and gives to each of them certain legal rights. The necessary implication of marriage is
that parties will live together. Each spouse is entitled to comfort consortium of the other. So after
the solemnisation of the marriage if either of the spouses without reasonable excuse withdraws
himself or herself from the society of the other then aggrieved party has a legal right to file a
petition in the matrimonial court for restitution of conjugal rights. It is mainly for two reasons-

A. The respondent has been causing mental cruelty to the petitioner.

It is humbly submitted before the Hon’ble Family Court that the respondent has been causing
mental cruelty to the petitioner since the very beginning. She even aborted the child four times
even after continuous warning from her husband. She has never given any importance to her
husband as she had always given reasons for abortion.

B. There has been desertion on the part of wife.

Section 13(1) (ib) of the Hindu Marriage Act, 1955 deals with desertion as a ground for divorce
and the explanation of the same reads: “The expression “desertion” means the desertion of the
petitioner by the other party to the marriage without reasonable cause and without the consent
of or against the wish of such party, and includes the willful neglect of the petitioner by the other
party to the marriage, and its grammatical variations and cognate expressions shall be construed
accordingly”.

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In this case both have been happening and thus the petition is maintainable under section 7 of the
Hindu Marriage Act.

Much obliged your lordship.

2ND SPEAKER- May it please this Hon’ble Court, this is counsel, ___ contending on the issue
that THE RESTITUTION OF CONJUGAL RIGHTS BE GRANTED TO VINOD. Section
9 of the Hindu Marriage Act, 1955 provides for the restitution of the conjugal rights. The
aggrieved party may apply, by petition to the District Court, for the restitution of conjugal rights.

It is significant to note that unlike a decree of specific performance of contract, for restitution of
conjugal rights, the sanction is provided by the court where the disobedience to such a decree is
willful that is deliberate, in spite of opportunities.

Smt. Saroj Rani v/s Sudarshan Kumar Chadha was decided on 8th August 1984. It is considered
landmark because it challenged the constitutional validity of Section 9 of the Hindu Marriage
Act, 1955 wherein the two-judge bench of the Honourable Supreme Court of India upheld the
validity of Restitution of Conjugal Rights enshrined under the Act.

This judgment thus concerns itself with the following Act/Sections:

(1) Hindu Marriage Act, 1955- Section 9

(2) Constitution of India- Article 13, Article 14 and Article 21

The Court held that it is herefore unable to accept the position that Section 9 of the said Act is
violative of Article 14 or Article 21 of the Constitution if the purpose of the decree for restitution
of conjugal rights in the said Act is understood in its proper perspective and if the method of its
execution in cases of disobedience is kept in view.

Ultimately Supreme Court in Saroj Rani v. Sudharshan gave a judgment which was in line
with the Delhi High Court views and upheld the constitutional validity of the Section 9 of the
Hindu Marriage Act, 1955 and the Judge held that “in the end I will repeat what I have said
before it is for the legislature to abolish the remedy of restitution and not for the Courts to strike

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it down in the ground that it is unconstitutional. In my opinion S. 9 is perfectly valid”. The judge
seems to want to do away with the remedy, but the existing laws tie his hands.

The court observed that the object of the section is to bring about cohabitation between estranged
parties so that they can live together. That in the privacy of home and married life neither article
21 nor article 14 has any place.

Hence restitution of conjugal rights should be awarded and the Section 9 is very well within the
ambit of constitution.

I would now like to call upon counsel __ to deal with next contention. Much obliged your
lordship.

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3RD SPEAKER- Your lordship, the counsel humbly submits to this Honorable Court that the
actions of respondent do amounts to Mental Cruelty. According to the Section 13 of Hindu
Marriage Act 1955 which defines the grounds for divorce which is available to both the parties to
the marriage and one of the grounds available to both parties to a marriage is ‘cruelty’. That is
the ground on which the appellant herein, had filed an application for a decree of divorce. 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.

In this case, there has been cruelty because-

1. The wife has been living away from her husband on the pretext of job and thus depriving
him of all matrimonial rights and duties.
2. The wife has been not ready to deliver since 4 years owing to the status that she is not
ready for the baby.

All these constitute cruelty.

In the light of the issues raised, arguments advanced and authorities cited, it is most humbly
submitted that the court may be pleased to adjudge and declare the petition to be maintainable,
declare the restitution of conjugal rights. Also, the Court may pass any order, writ, direction that
it deem fit in the interest of justice, equity and good faith. Thank you, your lordship.

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RESPONDENT SIDE

1ST SPEAKER- May it please this Hon’ble Court, this is counsel __ appearing along with my
co-counsels ___, __ and ____ on behalf of the defendant in the case concerning Vinod v. Shilpa.
The counsel for the defendant has three contentions to submit before this Hon’ble Court. Hope
the lordship is well versed with the facts of the case. With your lordships’ kind permission may
the counsel move on to her contentions.
It is humbly submitted before the Hon’ble Court that the present petition is not maintainable.

There is no mental cruelty

It is humbly submitted before the Hon’ble Court that the defendant has not committed any
mental cruelty on the husband. In this case, the husband asked the wife to relocate without even
considering her job and her rights rather he wanted her to be a slave who would always listen to
him.

There is no desertion

It is humbly submitted that there has been no desertion rather the petitioner has left the defendant
in Jaipur. He could have sticked to his old job also.

And if the restitution of conjugal rights will be given to the petitioner, it will be grave injustice to
the respondent. The Andhra Pradesh High Court had observed that the enforcement of a decree
of section 9 compels a person to have sexual intercourse with her spouse, thus depriving her of
control over her own body, but the Delhi High Court criticized this view and held that the
impugned section aimed at “consortium” and not at “cohabitation”. “Consortium” has been
defined as “companionship, love, affection, comfort, mutual services, sexual intercourse”. The
Delhi High Court held that sexual relations are not the ultimate goal of a marriage and that
restitution of conjugal rights aims only at compelling the parties to a marriage to live in the same
household and does not compel them to have sexual intercourse.

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2ND SPEAKER- May it please this Hon’ble Court, this is counsel, ___ contending on the issue
and It is humbly submitted before the Hon’ble Court that the restitution of conjugal rights are not
to be granted to Vinod. Infact it is contended that the Section 9 of the Hindu Marriage Act
violates the right of women.

In Shakila Banu v. Gulam Mustafa, 1970, the Hon’ble High Court observed: “The concept of
restitution of conjugal rights is a relic of ancient times when slavery or quasi-slavery was
regarded as natural. This is particularly so after the Constitution of India came into force, which
guarantees personal liberties and equality of status and opportunity to men and women alike and
further confers powers on the State to make special provisions for their protection and
safeguard.”

However, last year in K.S. Puttuswamy v Union of India, the Supreme Court held that individuals
have a right to privacy which grants them complete autonomy over their body. The Court has
thus adopted the individualistic definition of privacy as argued by Justice Choudary
in T.Sareetha v Venkata Subbaiah.
The Andhra Pradesh High Court had observed that the enforcement of a decree of section 9
compels a person to have sexual intercourse with her spouse, thus depriving her of control over
her own body, but the Delhi High Court criticized this view and held that the impugned section
aimed at “consortium” and not at “cohabitation”. “Consortium” has been defined as
“companionship, love, affection, comfort, mutual services, sexual intercourse”. The Delhi High
Court held that sexual relations are not the ultimate goal of a marriage and that restitution of
conjugal rights aims only at compelling the parties to a marriage to live in the same household
and does not compel them to have sexual intercourse.

With the gradual understanding that the law needs to intervene in family matters and protect the
rights of individuals, restitution of conjugal rights has been criticized across common law
jurisdictions, leading to its abolition in the UK, Australia, Ireland and South Africa. It is time that
India, too, abolishes restitution of conjugal rights, taking into consideration the blatant breach of
the right to privacy it represents.
Much obliged your lordship.

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3RD SPEAKER- Your lordship, the counsel is here to deal with the contentions that’s the act of
wife does not amount to cruelty. It is humbly submitted to this Honourable Court that Marriage is
a sacramental union, a holy union between man and women and not a contractual union as per
Hindu tradition. It is a union which once tied cannot be untied.

Section 13 of the Hindu Marriage Act 1955 defines the grounds for divorce and Section 13 (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

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. They are trivial irritations,
normal wear and tear of the marriage life and do not account to amount to mental cruelty. One
off instances here and there during the course of marriage doesn’t lead to mental cruelty. In
Gaurav Nagpal V. Sumedha Nagpal, 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."

RESPONDENT’S RIGHT TO OWN FERTILITY AND SEXUALITY

The right to make free and informed decisions about health care and medical treatment,
including decisions about one’s own fertility and sexuality, is enshrined in Articles 12 and 16
of the Convention on the Elimination of all Forms of Discrimination Against Women (1978) (2).
India, as a signatory to the International Conference on Population and Development,
1994, has committed itself to ethical and professional standards in family planning services,
including the right to personal reproductive autonomy and collective gender equality. Hence, it
is most humbly submitted before this honourable court that the actions of the respondent

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considered separately or cumulatively, do not amount to mental cruelty. Thus it is requested to
reject the prayer of the appellant and dismiss this appeal.

In the light of the issues raised, arguments advanced and authorities cited, it is most humbly
submitted that the court may be pleased to adjudge and declare the petition to be maintainable,
declare the restitution of conjugal rights. Also, the Court may pass any order, writ, direction that
it deem fit in the interest of justice, equity and good faith. Thank you, your lordship.