TEAM CODE: NMT-19

3RD LATE SH. KASHMIR SINGH

MEMORIAL NATIONAL
MOOT COURT COMPETITION
2019

BEFORE THE HON’BLE

DISTRICT COURT OF CHANDIGARH

SAURAV.....................................................................................APPELLANT

V.

RAJNI…….................................................................................RESPONDENT

MEMORANDUM ON BEHALF OF THE RESPONDENT

-Table of Contents- -Respondent-

TABLE OF CONTENTS

TABLE OF CONTENTS _____________________________________________________ 2

INDEX OF ABBREVIATIONS ________________________________________________ 3
INDEX OF AUTHORITIES___________________________________________________ 5
STATEMENT OF JURISDICTION_____________________________________________ 8
STATEMENT OF FACTS ___________________________________________________ 10
QUESTIONS OF LAW _____________________________________________________ 12
SUMMARY OF ARGUMENTS ______________________________________________ 14
ARGUMENTS ADVANCED ________________________________________________ 15
PRAYER _________________________________________________________________ 25
-Index of Abbreviations- -Respondent-

INDEX OF ABBREVIATIONS

T MEANING
1. § SECTION
2. ¶ PARAGRAPH
3. & AND
4. Ads ADVERTISEMENTS
5. AIR ALL INDIA REPORTER
6. Annex. ANNEXURE
7. Anr. ANOTHER
8. Art. ARTICLE
9. IPC INDIAN PENAL CODE
10. Cl. CLAUSE
11. Cr. CRIMINAL
12. CrLJ CRIMINAL LAW JOURNAL
13. HAMA HINDU ADOPTIONS AND MAINTENANCE ACT,1956
14. HMA THE HINDU MARRIAGE ACT,1955
15. PDVA THE PREVENTION OF DOMESTIC VIOLENCE AGAINST WOMEN
ACT,2005
16. CrPC CODE OF CRIMINAL PROCEDURE, 1973
17. CS CHARGE-SHEET
18. COMP COMPLAINT
19. Govt. GOVERNMENT
20. DC DISTRICT COURT
21. Hon'ble HONORABLE
22. i.e. THAT IS
23. IPC INDIAN PENAL CODE, 1860
24. MANU MANUPATRA
25. No. NUMBER
26. Ors. OTHERS
27. P. PAGE
28. PS POLICE STATION
-Index of Abbreviations- -Respondent-

29. PW PROSECUTION WITNESS

30. r/w READ WITH
31. SC SUPREME COURT
32. SCC SUPREME COURT CASES
33. chd CHANDIGARH
34. Bom BOMBAY
35. LR LAW REPORTER
36. Tra-Co TRAVANCORE
37. Eds. EDITION
38. U/S UNDER SECTION
39. UOI UNION OF INDIA
40. V./Vs VERSUS
41. Viz. NAMELY
42. w.r.t WITH RESPECT TO
 INDEX OF AUTHORITIES

STATUTES

1. The Hindu Marriage Act, 1955

2. Hindu Adoptions and Maintenance Act,1956

3. CODE OF CRIMINAL PROCEDURE, 1973

4. INDIAN PENAL CODE, 1860

5. The Protection of Women from Domestic Violence Act, 2005

BOOKS
1. Sir Dinshaw Fardunji Mulla, MULLA HINDU LAW, LexisNexis Butterworths
Wadhwa Nagpur, 22nd Edition.

2. Dr. Paras Diwan ,MODERN HINDU LAW, Allahabad Law Agency, 24th Edition

3. Mayne'S Hindu Law & Usage, Bharat Law House Pvt Ltd,18th Edition

4. Hindu Law (with Exhaustive Case Law) by Universal's Concise Commentary,

Universal Law Publishing - An imprint of LexisNexis

DYNAMIC LINKS
1. www.manupatra.com
2. www.scconline.com
3. www.westlawindia.com
4. www.lexisnexis.com
5. www.indiankanoon.com

IMPORTANT DEFINITIONS

1. Petitioner for the purpose of this memorandum shall stand for SAURAV.
2. Respondent for the purpose of this memorandum shall stand for RAJNI.

CASES
1. Varinder Nath v. Jeewan Jyo ti 1 9 9 8(3)R CR (Clv) 154

2. v. D. Grahalakshmi v. T . Prashanth, AIR 201 2 Mad 34

3. Sardar Bhupend ra Singh v Jasbir Ko urAIR 2000 MP 330: 2000 (2) JabU 1
55:2001

4. Santo sh Kumar Pandey v. Smt. Ananya Pandey, AIR 201 3 Chhattlsgarh 9 5

5. Aradhana v. Pradeep Mishra, AIR 201 3 MP 5

6. Arun Kumar v. Indira AIR 2005 All 4 06 : 2005 All U 34 25:2005 (6 1 )All LR
357:2006

7. Arun Laxmanrao Navalkar v. Meena Arun Navalkar, AIR 2006 Bo m34 2: 2006

8. Debashish Chakrabo rty v. Mausumi Bhattacharjee, AIR 2007 Gau 1 78:2008

9. Devaki Antharjanamv. Narayanan Nambo o diri, AIR 2007 Ker 38:2006

10. B.N. Sharma v Usha Sharma AIR 2004 Del 1 9 8: 2004

11. Urmila Devi v Narinder Singh, AIR 2007 HP 1 9 :2007 (50)All Ind Cases 6 84
:2007

12. Usha R ani v. PremSingh, 2005 (3) cCC 370 (P&H)

13. Vandana J. Kasliiwal v. Jitendra N. Kasliwal, AIR 2007 Bo m1 1 5:2007

14. UttamNandi v. Mohni Nandi, AIR 2008 Gau 1 77:2008 (70)All Ind Cases 9 36

15. Satish Sitale v. Ganga AIR 2008 SC 309 3: 2008 AIR SCW 51 9 0: 2008

16. Satyabhama Pradhan v. Sidhartha Saho o AIR 2005 Ori 1 77: 2005 (34 )All Ind
Cases 524

17. Sapna Banerjee . R abindra Nath Banerjee AlR 2002 Jhar 1 1 1 :2002 (2)DMC 4
05:2003

18. Subhash Chandra Das Chowdhury v. Sandhya Das Chowdhury, AIR 2009
(NOC) 498 (Cal).

19. B. Sri Niva Sulu v. Veena Kumari AIR 2008 AP 20:2008 AIHC (NOC) 112:
2008(2) ALJ (NOC)

20. Abha Agarwal v. Sunil Agarwal AIR 2000 All 377 (DB):2001(2) RCR (Ciu)
394:2001(3) LJR740

21. Poonam Kaur v. Jagjit Singh. AIR 2005 (P&H) 295.

22. Kamlesh KumarAgarwal allas Sawa v. Mamta Devi AIR 2005 Jhar 1 0:2004

23. Kanchan Sanjay Gujar v. Sanjay Bhikan Gujar, AIR 2009 Bo m1 51 : 2009

24. JayantibhaiIshwarbhaiRohit& 2 vs ChandrikabenRamanbhaiRohit

-Statement of Jurisdiction- -Respondent-

STATEMENT OF JURISDICTION

The Hon’ble District Court of Chandigarh has the implied jurisdiction to try, entertain and
dispose of the present case by virtue of :

 Section-19 of the HINDU MARRIAGE ACT,1955.*

 Section-18 of The HINDU ADOPTIONS AND MAINTENANCE ACT,1956 r/w

Section -125 of The CrPC,1973

 Section-27 & 28 of THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE

Act, 2005**

* [ 19 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.]
-Statement of Jurisdiction- -Respondent-

** [27. Jurisdiction.—
(1) The court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the
case may be, within the local limits of which—
(a) the person aggrieved permanently or temporarily resides or carries on business or is
employed; or
(b) the respondent resides or carries on business or is employed; or
(c) the cause of action has arisen, shall be the competent court to grant a protection order and
other orders under this Act and to try offences under this Act.
(2) Any order made this Act shall be enforceable throughout India.

28. Procedure.—
(1) Save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21,
22 and 23 and offences under section 31 shall be governed by the provisions of the Code of
Criminal Procedure, 1973 (2 of 1974).
(2) Nothing in sub-section (1) shall prevent the court from laying down its own procedure for
disposal of an application under section 12 or under sub-section (2) of section 23.]
-Statement of Facts- -Respondent-

STATEMENT OF FACTS

1. Saurav, resident of District Shimla, was running a business of Tent House. His job was
hectic with a moderate earnings. Saurav got married to Rajni on May 21, 2010 at
Chandigarh. Rajni was resident of Bombay. She was a graduate and remained as
housewife.

2. They started living in Shimla with Rampal and Ganga who are father and mother of
Saurav. The house in which they were lining belonged to Rampal

3. After one and half years Rajni and Saurav were blessed with a daughter named khushee.

4. In February 2014, younger married daughter of Rampal named Radha left her husband’s
house due to his illicit relations with another women. She started living with her parents
in same house. Radha’s elder sister Rekha started making frequent vists there with
motive to pursue her to reconcile her relation.

5. Rajni was not comfortable with Radha which results in daily house fights.

6. On August 12, 2014, Rajni made a police complaint against Radha, Rekha, and parents
for domestic violence caused to her by them. They were called to police station and
interrogated. For this act of Rajni, she was scolded by her parents, Saurav and other
family members. They opined that such acts have brought disrepute to the family and also
will have impact on the future of the daughter.

7. In the mean time, Radha’s husband came to meet her and felt sorry and guilty for his acts.
He requested her to accompany him to his house and promised not to repeat such
activities. Ganga managed to satisfy her daughter and suggested Radha to give a chance
to her husband to discipline his married life and she left house with her husband.
-Statement of Facts- -Respondent-

8. Two days later, Radha’s husband had heart attack and got hospitalised. Saurav suggested
his wife to meet Radha and console her. She refused to do so, hence Saurav had
arguments with her. Rajni felt offended and made a complaint for domestic violence
against family members including Radha for abetting family members against her. This
time Saurav was also made a party to the act of domestic violence. Again, Saurav along
with parents and sisters were called to the Police Station where Rajni threatened them of
dire consequences. Aggrieved by such acts of Rajni, her father-in-law requested her to
withdraw complaints against them. She agreed to withdraw her complaints against all of
them on the promise that they will not stay in this house. Parents left house and started
living in their native village. Rajni withdrew her complaint.

9. Saurav was not happy but for the future of his daughter he accepted such compromise.
Few days later, Rampal visited his house to meet his grand-daughter. Rajni refused his
entry in house. One day, when Saurav reached home, his wife scolded him for frequent
late comings. He made excuse of problems in his business. This was followed by
everyday arguments and abusive language. Rajni filed complaint against him for domestic
violence.

10. Saurav was frustrated of visiting time and again to Police Station and left house in
January, 2017.

11. He joined a company doing same business in Chandigarh. His earnings increased.

12. When this fact came to the knowledge of Rampal, he went to visit his grand-daughter.
This time after insisting he was allowed to meet Khushee. He enquired about her school
activities, gave her school fees and other expenses to his daughter-in-law.

13. About three months later, Saurav came back to his house, but he was neither allowed to
enter his house nor to meet his daughter. Many times he endeavoured to meet his
daughter but Rajni did not allow him to do so. He is regularly paying maintenance and all
expenses to his wife and daughter through his father.
 QUESTIONS OF LAW

1. WHETHER THE CRUELTY IS JUSTIFIABLY INFLICTED BY

RAJNI ON SAURAV ?

2. WHETHER THE ALLEGATIONS RAISED AND COMPLAINTS

IMPLICATED ON SAURAV AND HIS FAMILY BY RAJNI WERE
VALID OR NOT ?

3. WHETHER THE DESERTION ON BEHALF OF SAURAV IS A

VALID GROUND OF DIVORCE OR NOT ?

4. WHETHER THE CUSTODY OF MINOR DAUGHTER

( KHUSHEE) SHOULD BE GIVEN TO SAURAV OR NOT, OR

RAJNI CAN RETAIN IT ?
-Summary of Arguments- -Respondent-

SUMMARY OF ARGUMENTS

1.THE CRUELTY IS JUSTIFIABLY INFLICTED UPON THE RAJNI BY

SAURAV,HIS SISTERS RADHA AND REKHA AND HIS PARENTS.
Any actions by the family of husband or even the relatives of husband which makes difficult
for wife to live in house or makes her uncomfortable amounts to cruelty. Similarly, the
actions of Radha and Rekha made Rajni uncomfortable and difficult to live in house. The
Radha sister of the husband even abetted the other family members and turned them against
her.

2.THE ALLEGATIONS RAISED AND COMPLAINTS OF DOMESTIC VIOLENCE

IMPLICATED ON SAURAV AND HIS FAMILY MEMBERS
ARE TRUE AND EFFECTUAL.
Mental persecution and reduntant torture By rajni’s in laws and Compulsions infused on rajni
by saurav againt her will and dignity subordinated her prosper subsistence of life
At various instances The sisters in law Radha And Rekha and Saurav encleate evasive
remarks on the deference of the Rajni. These dealings infuriates Rajni to move to Police
Station everytime described to safeguard her rights of life and liberty and to shield the life of
khushee from gloomy exertions

3.THE DESERTION ON BEHALF OF SAURAV IS A INVALID GROUND OF

DIVORCE.
In this case It Is impossible for Saurav to implore and desire to effectuate DIVORCE as the
Conditions nowhere abides the law itself. AND the circumstances are contrary to the laws laid
down as under section 13 of HINDU MARRIAGE ACT 1955.

4.THE CUSTODY OF KHUSHEE, THE MINOR DAUGHTER SHOULD RETAIN

AND CONSERVE TO RAJNI
FOR SAKE OF WELFARE AND INTEREST OF HER (KHUSHEE) LIFE.

In the case of Rajni and Saurav, the custody of their child must go to Rajni as Saurav is a
working husband and will not be able to take proper care of the daughter due to his
profession demands. Secondly, even Saurav marries another women, how could he sure me
that his second wife will take proper care of Khushi as I do. Thirdly, the abusive nature of
Saurav will impact our daughter in wrong way and there is no surety that how he will treat
Khushi as he is of aggressive AND abusive nature.
-Arguments Advanced- -Respondent-

ARGUMENTS ADVANCED

1.THE CRUELTY IS JUSTIFIABLY INFLICTED UPON THE RAJNI

BY SAURAV,HIS SISTERS RADHA AND REKHA AND HIS PARENTS.

1.1 Matrimonial Cruelty in India is a cognizable, non bailable and non compoundable
offence. It is defined in Chapter XXA of I.P.C. under Sec. 498A as:
Husband or relative of husband of a woman subjecting her to cruelty.
Whoever being the husband or the relative of the husband of a woman, subjects her to cruelty
shall be punished with imprisonment for a term, which may extend to three years and shall
also be liable to a fine.
Explanation – for the purpose of this section, "cruelty" means:
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit
suicide or to cause grave injury or danger to life, limb or health (whether mental or physical)
of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any
person related to her to meet any unlawful demands for any property or valuable security or is
on account of failure by her or any person related to her to meet such demand.
rely upon circumstantial evidence. The express agreement, however, need not be proved. Nor
actual meeting of two persons is necessary, neither it is necessary to prove the actual words
of communication. The evidence as to transmission of thoughts sharing the unlawful design
may be sufficient.

1.2 BREACH OF PRIVACY IN LIFE IS SUBJECT TO MENTAL CRUELTY

Privacy has been defined as “ rightful claim of an individual claim of a person to determine
to which he/ she wishes to share with others and control over the time, place and
circumstances which means that Rajni has right to control dissemination of information about
herself. It is her own personal possession. When Radha and Rekha interfere in her personal life or
which was against her wishes or will, it leads to breach of privacy of
Rajni. R. Sukanya vs. R. Sridhar AIR 2008
-Arguments Advanced- -Respondent-

1.3 CRUELTY TO WIFE BY FAMILY AND RELATIVES OF HUSBAND

Any actions by the family of husband or even the relatives of husband which makes difficult
for wife to live in house or makes her uncomfortable amounts to cruelty. Similarly, the
actions of Radha and Rekha made Rajni uncomfortable and difficult to live in house. The
Radha sister of the husband even abetted the other family members and turned them against
her.

1.4 ASKING WIFE TO DO SOMETHING AGAINST HER WILL, AMOUNTS TO

CRUELTY

If husband forces wife to do something which she is not at all interested to do amounts to
cruelty. Even in the case of Rajni, Saurav forced her to meet Radha and console her about her
husband’s bad health. Radha, the lady who earlier had mentally harassed the Rajni and
disembodied her conjugal life.

1.5 ABETTING FAMILY MEMBERS AGAINST SOMEONE AMOUNTS TO

DOMESTIC VIOLENCE

Abetment means encouraging someone to do any wrongdoing. Similarly, Radha abetted

the family members of Rajni in such a way that even they turned against her and they were
under the influence of Radha. On the other hand, Radha was continuously involved in
quarrels with Rajni along with her parents, sister and brother, making Radha’s and her 5 year
old daughter’s more miserable.
-Arguments Advanced- -Respondent-

1.6 CONTINUOUS MENTAL HARASSMENT AMOUNTS TO CRUELTY

Continues mental harassment with violence contributes to cruelty as well as domestic

violence. In the case of Radha, she was mentally harassed by her in-laws just after marriage
along with her sisters-in-laws. These actions by the inlaws could have affected her seriously
and even her 5 year old daughter, Khushee.

1.7 IMMORAL AND UNPRINCIPLED SUBSISTENCE OF CONJUGAL

RELATIONSBY HUSBAND STEERAGE TO MENTAL AS WELL AS PHYSICAL
CRUELTY

The Subsistence of conjugal relations and dodder of the khushee articulated depravation for
Rajni due to Saurav’s late comings to home and his regular fights with Rajni. Saurav’s
regular use of abusive language in-front of his daughter made a bad impact on her and at this
point it was impossible for Rajni to tolerate everything on daily basis.
-Arguments Advanced- -Respondent-

2.THE ALLEGATIONS RAISED AND COMPLAINTS OF DOMESTIC

VIOLENCE IMPLICATED ON SAURAV AND HIS FAMILY
MEMBERS ARE TRUE AND EFFECTUAL

2.1DEFINITION OF DOMESTIC VIOLENCE UNDER THE PROTECTION OF WOMEN

FROM DOMESTIC VIOLENCE ACT, 2005 —

For the purposes of this Act, any act, omission or commission or conduct of the respondent
shall constitute domestic violence in case it—

(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or
physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual
abuse, verbal and emotional abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any
other person related to her to meet any unlawful demand for any dowry or other property or
valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct
mentioned in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.
Explanation I.—For the purposes of this section,—
(i) “physical abuse” means any act or conduct which is of such a nature as to cause bodily pain,
harm, or danger to life, limb, or health or impair the health or development of the aggrieved
person and includes assault, criminal intimidation and criminal force;
(ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or
otherwise violates the dignity of woman;
(iii) “verbal and emotional abuse” includes—
(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not
having a child or a male child; and
(b) repeated threats to cause physical pain to any person in whom the aggrieved person is
interested.
(iv) “economic abuse” includes—
(a) deprivation of all or any economic or financial resources to which the aggrieved person is
entitled under any law or custom whether payable under an order of a court or otherwise or which
the aggrieved person requires out of necessity including, but not limited to, household necessities
for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned
by the aggrieved person, payment of rental related to the shared household and maintenance;
(b) disposal of household effects, any alienation of assets whether movable or immovable,
valuables, shares, securities, bonds and the like or other property in which the aggrieved person
has an interest or is entitled to use by virtue of the domestic relationship or which may be
-Arguments Advanced- -Respondent-

reasonably required by the aggrieved person or her children or her stridhan or any other property
jointly or separately held by the aggrieved person; and
(c) prohibition or restriction to continued access to resources or facilities which the aggrieved
person is entitled to use or enjoy by virtue of the domestic relationship including access to the
shared household. Explanation II.—For the purpose of determining whether any act, omission,
commission or conduct of the respondent constitutes “domestic violence” under this section, the
overall facts and circumstances of the case shall be taken into consideration.

1.2MENTAL PERSECUTION AND REDUNTANT TORTURE

BY RAJNI’S IN LAWS AND
COMPULSIONS INFUSED ON RAJNI BY SAURAV AGAINT HER WILL AND
DIGNITY SUBORDINATED HER PROSPER SUBSISTENCE OF LIFE

At various instances The sisters in law Radha And Rekha and Saurav encleate evasive
remarks on the deference of the Rajni. These dealings infuriates Rajni to move to Police
Station everytime described to safeguard her rights of life and liberty and to shield the life of
khushee from gloomy exertions.

Article 21 of THE INDIAN CONSTITUTION reads as:

“No person shall be deprived of his life or personal liberty except according to a procedure
established by law.”

According to Bhagwati, J., Article 21 “embodies a constitutional value of supreme

importance in a democratic society.”
Iyer, J., has characterized Article 21 as “the procedural magna carta protective of life and
liberty.
This right has been held to be the heart of the Constitution, the most organic and progressive
provision in our living constitution, the foundation of our laws.
Article 21 can only be claimed when a person is deprived of his “life” or “personal liberty”
by the “State” as defined in Article 12. Violation of the right by private individuals is not
within the preview of Article 21.

Article 21 secures two rights:

1) Right to life, and
2) Right to personal liberty.
The Article prohibits the deprivation of the above rights except according to a procedure
established by law. Article 21 corresponds to the Magna Carta of 1215, the Fifth Amendment
to the American Constitution, Article 40(4) of the Constitution of Eire 1937, and Article
XXXI of the Constitution of Japan, 1946.
-Arguments Advanced- -Respondent-

Article 21 applies to natural persons. The right is available to every person, citizen or alien.
Thus, even a foreigner can claim this right. It, however, does not entitle a foreigner the right
to reside and settle in India, as mentioned in Article 19 (1) (e).

3. WHETHER THE DESERTION ON BEHALF OF SAURAV IS A

VALID GROUND OF DIVORCE OR NOT ?

3.1 THE TERM DESERTION ELUCIATED IN SECTION 13 IN THE HINDU

MARRIAGE ACT, 1955
13- Divorce. —
(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; or]
[(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or]
[(ib) has deserted the petitioner for a continuous period of not less than
two years immediately preceding the presentation of the petition; or]
(ii) has ceased to be a Hindu by conversion to another religion; or
[(iii) 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.

So In this case It Is impossible for Saurav to implore and desire to effectuate DIVORCE as the
Conditions nowhere abides the law itself.

3.2RAJNI’S EFFORTS TO RECONCILE

Rajni was ready to reconcile with her husband even after suffering cruelty, abetment and
domestic violence from her in-laws and Saurav, she was ready to start a new beginning and
new life and leaving everything that happened with her. She made every effort to reconcile
for better future for daughter and better future for both her and Saurav.
-Arguments Advanced- -Respondent-

3.3 RESUMPTION OF COHABITATION EXPRESSED BY SAURAV

Resumption of cohabitation meaning living together in conjugal relationship. It depends

upon the intention of the parties. The demand of Saurav of divorce should not be accepted as
he was ready to cohabit thats the only reason why he returned home after 3 months and
secondly resumption of cohabitation is applicable even the parties are not staying under the
same roof. AND it was the only wherewithal to get their lives back to gear.

3.4ANIMUS DESERENDI

Animus Deserendi means the intention of deserting a spouse or partner. In the case of Saurav
and Rajni, Saurav committed the act of Animus Deserendi and left his wife and 5 year old
daughter, Khushi with no effort of contacting his daughter and leaving his helpless wife
and single mother and daughter behind and making their life more miserable and
forcing them to start their life from the beginning without any permanent residence and any
other person.

4.THE CUSTODY OF KHUSHEE, THE MINOR DAUGHTER

SHOULD RETAIN AND CONSERVE TO RAJNI
FOR SAKE OF WELFARE AND INTEREST OF HER (KHUSHEE)
LIFE.

4.1Section 26 in The Hindu Marriage Act, 1955

Custody of children. —In any proceeding under this Act, the court may, from time to time, pass
such interim orders and make such provisions in the decree as it may deem just and proper with
respect to the custody, maintenance and education of minor children, consistently with their
wishes, wherever possible, and may, after the decree, upon application by petition for the
purpose, make from time to time, all such orders and provisions with respect to the custody,
maintenance and education of such children as might have been made by such decree or interim
orders in case the proceeding for obtaining such decree were still pending, and the court may also
from time to time revoke, suspend or vary any such orders and provisions previously
made: [Provided that the application with respect to the maintenance and education of the minor
children, pending the proceeding for obtaining such decree, shall, as far as possible, be disposed
of within sixty days from the date of service of notice on the respondent.]
-Arguments Advanced- -Respondent-

4.2CUSTODY OF MINOR CHILD KHUSHEE

Custody of child means which parent will take the responsibility of the child after the
divorce. In the case of Rajni and Saurav, the custody of their child must go to Rajni as Saurav
is a working husband and will not be able to take proper care of the daughter due to his
profession demands. Secondly, even Saurav marries another women, how could he sure me
that his second wife will take proper care of Khushi as I do. Thirdly, the abusive nature of
Saurav will impact our daughter in wrong way and there is no surety that how he will treat
Khushi as he is of aggressive AND abusive nature.

4.3IMPACT OF CHILD AFTER SEPARATION

The impact of separation will have a major impact on the child in future. When the daughter
will attain majority, she will feel uncomfortable while talking about her parents complicated
married life and this will have major and life long impact on daughter.

A Minor Child, Who Has Not Completed Five Years Of Age, Shall Be
Allowed To Remain With The Mother, The Supreme Court Has Ruled
Saying That In Such Cases Child Should Not Treated As A

“Chattel”.

4.4 JayantibhaiIshwarbhaiRohit& 2 vs
ChandrikabenRamanbhaiRohit

In this case, the trial court had rightly held that it was the mother who was entitled to
the custody of the minor child.

In our case the appellant has left his 5 years old daughter and his wife for the straight 3
months.
The respondent is a single mother and it is hard to imagine that how she live without male
family member in patriarchal society and without any source of income. So who will take
guarantee that in future the appellant will take care of the daughter.
-Arguments Advanced- -Respondent-

And when both the appellant and respondent were living together, the appellant used to come
late at nights and how we can imagine that in future he will take care of the daughter
throughout the day, as respondent used to take care of the daughter.
The daughter have a strong bond with her mother as the appellant was normally busy in his
own business . And it is natural and normal that the children have more attachment with the
mother rather than the father.

Moreover who will take guarantee thatin future the appellant will not marry again and if he
marries again to any woman , she will not take care of the child as the real mother.
 PRAYER

IN THE LIGHT OF THE ARGUMENTS ADVANCED AND AUTHORITIES CITED,

THE APPELLANT HUMBLY PLEADS BEFORE THE HON’BLE COURT TO:

1. TO STAND DOWN THE PETITION FILED BY PLAINTIFF

SAURAV, SEEKING DIVORCE ON GROUNDS OF CRUELTY AND

DESERTION AS IT IS OF WORTHLESS CAUSE.

2. TO RETAIN THE CUSTODY OF MINOR DAUGHTER KHUSHEE

TO THE RESPONDENT RAJNI FOR THE AFFLUENCE AND

WELFARE OF THE CHILD.

ANY OTHER ORDER AS IT DEEMS FIT IN THE INTEREST OF EQUITY,

JUSTICE AND GOOD CONSCIENCE.

FOR THIS ACT OF KINDNESS, THE APPELLANT FACTION SHALL BE

DUTY BOUND FOREVER.

SD/-

(COUNSEL FOR THE RESPONDENT)