TEAM NO: 2P

MEMORIAL FOR THE PETITIONER

BBA.LL.B (III Sem) 2019-2020

MOOT COURT PROBLEM:-01

IN THE HON’BLE COURT OF DISTRICT JUDGE

AT NOIDA

IN THE CIVIL SUIT NO. ________ 2019

Mr. MOHAN (PETITIONER)

V.

Ms. RADHA (RESPONDENT)

GITARATTAN INTERNATIONAL BUSINESS SCHOOL

 LIST OF ABBREVIATIONS

& AND
Vs. VERSUS
SEC. SECTION
AIR ALL INDIA REPORT
Pat Patiala
Alld ALLAHABAD
ILR INDIAN LAW REPORT
SCR SUPREME COURT REPORT
A.P. ANDHRA PRADESH
RAJ. RAJASTHAN
I.E. THAT IS
Art. ARTICLE
J. JUSTICE
b/w BETWEEN
 THE TABLE OF CONTENTS

1. List of Abbreviations II

2. Table of Content III

3. List of Sources/Authorities/Index of Authorities IV

4. Statement of Jurisdiction V

5. Statement of Facts VI

6. Statement of Issues VII

7. Summary of Arguments VIII

8. Arguments Advanced IX

I. Whether there has been any cause of action under conjugal rights of a person.

II. Whether there has been any reasonable excuse for withdrawal from society.

III. Whether the filing of the petition for the restitution of conjugal rights
valid.
9. Prayer/Relief Sought
 INDEX OF AUTHORTIES

STATUTORY COMPILATIONS
THE HINDU MARRIAGE ACT 1955(BARE ACT)

BOOKS REFERENCES
Dr. Paras Diwan – FAMILY LAW
Prof. Kusum – FAMILY LAW I
Dr Paras Diwan- Modern Hindu Law 3rd edition

WEBSITES
https://lawbriefs.in/case-brief-smt-saroj-rani-v-s-sudarshan-kumar-chadha-1984/
https://www.casemine.com/judgement/in/5a3c31814a93266a5afb5794
https://www.slideshare.net/gautamritu/restitution-of-conjugal-right-ppt
https://www.indianbarassociation.org/restitution-of-conjugal-right-a-comparative-study-among-indian-
personal-laws/

CASES
Shanti Devi Vs. Ramesh Chandra Roukar, AIR 1969 Pat 27
Shanti Nigam v. R. C. Nigam, AIR 1975 Alld. 337
Smt. Kailash Wati vs. Ayodhia Prakash, AIR 1977 ILR Raj 113
Saroj Rani Vs. Sudarshan Kumar Chadha, 1984 AIR 1562, 1985 SCR (1) 303
T. Sareetha Vs T. Venkata Subbaiah, AIR 1983 AP 356
Harvinder Kaur Vs. Harmender Singh, AIR 1984 Del. 66, ILR 1984 Del. 546, 1984 RLR 187
 THE STATEMENT OF JURISDICTION

The counsel on behalf of the Petitioner hereby submits his written statement in the suit for recovery under
section 9 of The Code of Civil Procedure, 1908. The Counsel most humbly and respectfully, submits that
Hon’ble Noida District Court has the requisite subject matter jurisdiction to entertain and adjudicate this
matter as the marriage was solemnized between the said parties in the geographical jurisdiction of this
Hon’ble Court under section 16 of The Code of Civil Procedure, 1908 as well as per sec 7(b) of the
Family Courts Act, 1984 stating:-

(1) Subject to the other provisions of this Act, a Family Court shall-
(b) “be deemed, for the purposes of exercising such jurisdiction under such law, to be a district
court or, as the case may be, such subordinate civil court for the area to which the jurisdiction
of the Family Court extends.”
 THE STATEMENT OF FACTS

BACKGROUND

1. The marriage between Mohan and Radha was solemnized on 01-01-2013 according to the Hindu
Rituals and Customs in Noida. Mohan is working as a junior assistant in a Private Educational
Institution in Noida.

2. Radha’s parents were residing at Gurugram. Radha went to her parent’s house for delivery. They
were blessed with a male child and named him Ram. After the delivery of the child, Mohan went
to Gurugram to his in-law’s house and requested his wife to come back to Noida.

DISPUTE

3. His wife asked Mohan to live with her and the child at her parental house in Gurugram. This
enraged Mohan and he got very angry. He also slapped his wife Radha and asked her to come
back to Noida with him. Thereupon, Radha told Mohan that her mother is residing alone in
Gurugram since her father is living in Sat-sang Ashram in Raipur. She told him that she cannot
leave her mother all alone in the house and thus refused to accompany Mohan to Noida to live in
the matrimonial home. Mohan left the house of Radha because he never intended to leave his job
and shift base to Gurugram.

4. For the next two years, Radha claims that she tried to be in touch with Mohan. However, Mohan
never got any messages and thus was oblivious to the fact that any type of communication was
made from Radha's side

SUIT

5. After two and half year he filed a petition before the Senior Civil Judge in Noida seeking a decree
for restitution of conjugal rights alleging that the behaviour of the wife is improper and she was
not entitled to insist him to become a resident son in-law.
 THE STATEMENT OF ISSUES

1. Whether there has been any cause of action under conjugal rights of a person?

2. Whether there has been any reasonable excuse for withdrawal from society?

3. Whether the filing of the petition for the restitution of conjugal rights valid?
 THE SUMMARY OF ARGUMENTS

The following arguments are most humbly presented before the Hon’ble court for the
adjudication with due respect:

1) There has been any cause of action under conjugal rights of a person.
The Counsel on behalf of the Petitioner most humbly and respectfully submits before this
Hon’ble Court that Mr. Mohan has a reasonable cause of action under the conjugal rights
of a person when are violated or being taken away by the spouse as per the sec. 9 of The
Hindu Marriage Act 1955.

2) There has been no reasonable excuse for withdrawal from society.

The Counsel on behalf of the Petitioner most humbly and respectfully submits before this
Hon’ble Court that the Ms. Radha(the respondent) had no reasonable excuse or reasonable
ground for the withdrawal from the wedlock solemnized on 01-01-2013 between her and
our client i.e. Mr. Mohan, as the grounds are evident from various precedents.

3) The filing of the petition for the restitution of conjugal rights was valid.
The Counsel on behalf of the Petitioner most humbly and respectfully submits before this
Hon’ble Court that the filing of the petition for the restitution of conjugal rights was valid
as under the sec.9 of The Hindu Marriage Act 1955 against the respondent on the violation
of Mr. Mohan’s Conjugal right in their matrimonial life.
 THE ARGUMENTS ADVANCED

The following arguments are most humbly presented before the Hon’ble court for the
adjudication with due respect:

1) There has been any cause of action under conjugal rights of a person.

In the case where our client i.e. Mr. Mohan got his marriage solemnized on 01-01-2013 as
per sec.5 of the Hindu Marriage Act 1955 which states “ A marriage may be solemnized
between any two Hindus, if the following conditions are fulfilled, namely:-

(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of marriage, neither party-
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering from mental disorder of
such a kind or to such an extent as to be unfit for marriage and procreation of
children; or
(c) has been subject to recurrent attacks of insanity;
(iii) the bridegroom has completed the age of [twenty-one years] and the bride, the age of
[eighteen years] at the time of marriage;
(iv) The parties are not within the degrees of prohibited relationship unless custom or usage
governing each of them permits of a marriage between the two;
(v) The parties are not sapindas of each other; unless custom or usage governing each of
them permits of a marriage between the two.

The marriage was solemnized with Ms. Radha(the respondent) according to Hindu Rituals
& Customs in Noida as per the Hindu Rituals and Customs as per the sec. 7 of the Hindu
Marriage Act 1955 which states that

“(1) A Hindu marriage may be solemnized in accordance with customary rites and
ceremonies of either party thereto.

(2) Where such rites and ceremonies include the saptpadi( that is, the talking of seven
steps by the bridegroom and the bride jointly before the sacred fire), the marriage
becomes complete and binding when the seventh step is taken.”
Mr. Mohan suffered from the mental problem where his wife i.e. Ms. Radha(the
respondent) went for delivery to her parental house at Gurugram and after the delivery she
refused to come back to her martial home at Noida with their new born baby named Ram
and her act amounted to restitution of the conjugal rights of our client as per the sec.9 of
The Hindu Marriage Act 1955 which states that

“When either the husband or the wife has, without reasonable excuse, withdrawn from the
society of the other, the aggrieved party may apply, by petition to the district court, for
restitution of conjugal rights accordingly.”

Even when our client requested his wife to come along with him to which she refused and
insisted him to stay at her parental house at Gurugram. Our client refused to which because
he was the only bread owner of his family and he been working as a junior assistant in a
Private Educational Institution.

So, by the refusal of Ms. Radha to come back to their martial house along with their child
made a great emotional effect of our client due to which he suffered from the mental
trauma. And even for next two(2) years our client i.e. Mr. Mohan never got any messages
from Radha’s side. Our client showed a patient behaviour during this long period as he had
been expecting his wife i.e. Ms. Radha to come to their martial home, but even when it
didn’t happened, so, being left with no other way, after the passing of period of two and
half years he filed a suit before the Senior Civil Judge in Noida to seeking the decree for
restitution of conjugal rights alleging that the behaviour of wife is improper and she had no
right to insist him to reside at her parental home in Gurugram and become a resident son-
in-law.
2) There has been no reasonable excuse for withdrawal from society.
No, there was no reasonable ground for the wife regarding the denial of the restitution of
conjugal rights of the husband, also the wife had been staying away from matrimonial
home i.e. away from husband for a long period of two(2) years. Since there are the
precedents where the hon’ble court has accepted those particular grounds. In the
judgement given in the case of Shanti Devi Vs. Ramesh Chandra Roukar1

The appeal arises out of a proceeding under sec.9 of The Hindu Marriage Act, 1955 (25 of
1955), in which husband made an application for restitution of conjugal rights in the
ground that his wife who is appellant here, had without reasonable excuse withdrawn from
his society. In defence the appellant alleged cruelty, desertion by & in vitality of the
husband. The Court below on consideration of the evidence allowed a decree for
restitution of conjugal rights in the favour of the husband. The present appeal is directed
against that.

Apart from assailing the findings as given by the Court below, learned counsel urged two
points. He contended that according to the respondents’ case the appellant had left his
society in 1955 and lived since then with her parents. The proceeding under sec.9 was
initiated by husband in 1964. For a period of about ten years no step had been taken by the
husband for restitution of conjugal rights. This aspect has not been taken into account by
the court below and according to learned counsel the decree for restitution of conjugal
rights as passed, has been vitiated.

Sec.23(1)(d) of the Hindu Marriage Act, 1955 states “In any proceeding under this Act,
whether defended or not, if the court is satisfied that there has not been any unnecessary
or improper delay in instituting the proceeding, then, and in such a case, but not
otherwise, the court shall decree such relief accordingly”. It was thus incumbent upon the
court below to be satisfied that the long delay of about ten years as suffered by the
husband before coming to the court had been substantially explained or was otherwise
justified. On a perusal of the entire judgement I do not see that this aspect of the case had
at all come to the mind of the court. In plaint itself the husband had stated that the wife had
gone away at the instance of her parents in 1955 and under their influence she was staying
with them all the time. This being the admitted position it was necessary for the husband to
explain the inordinate delay before coming to the court for redress. In that view alone the
judgement cannot be sustained.

1. AIR 1969 Pat 27

The grounds for the same are as mentioned below:-

 When husband remarries

All the personal laws, except that in case of Muslims, hold bigamy to be to be void. The
conjugal rights are available only in a subsisting valid marriage. Thus, if a man takes on
another wife while his marriage with the first wife is subsisting, he loses the right to file a
petition for restitution of conjugal rights against such second wife. Also, if upon such act
of the husband, the first wife withdraws such matrimonial society, it would amount to a
reasonable cause to do so, as such action amounts to cruelty, and also a violation of marital
duties. Here, in fact, the first wife has the right to file for restitution of conjugal rights.

 When conduct of husband makes it impossible for the wife to live with the husband.

The law on restitution of conjugal rights is not born out of any existing custom. It came
into the legal picture during the British Raj having its roots in feudal England, where
marriage was considered as a property deal and wife was part of man’s possession like
other chattels.

 When economic considerations require the wife to take up the job

Earlier, even economic consideration did not allow the wife to virtually withdraw from
the society of the husband unless it was done by mutual consent of both the parties.
However, this seems to be unreasonable keeping in mind the present society and modern
living conditions. Later on, a liberal approach was taken by the Allahabad High Court in
the case of Shanti Nigam v. R. C. Nigam2. The relevant part of the judgment held that
“women can no longer be confined to the house. In the view of altered social conditions,
both husband and wife may think it necessary to work and contribute equally to the
family chest…….. It is one thing for a wife to say that she will not go to her husband and
will not cohabit with him nor will she allow him to come to her. It is different if she says
that it is necessary for the upkeep of the family that she should also work and she would
go to her husband whenever it is possible for her to do so, and the husband could also
come to her at his own convenience…… In such a situation it cannot be said that she has
withdrawn herself from the society of her husband.”

2. AIR 1975 Alld. 337

The court emphasizes the modern outlook of marital relations and also the economic
aspect of living, and opines that such separation will be a reasonable cause for the wife.
There is stress on the economic necessity of the wife to take up a job.

 When there is no economic necessity for the wife to take a job and live separately.

In the case of Smt. Kailash Wati vs. Ayodhia Prakash 3, this question was broken down
into three parts and dealt with each part separately.

i. When the wife is already working before and at the time of marriage
ii. When the husband encourages/allows his wife to take up employment after
marriage
iii. When the wife accepts employment away from the matrimonial home, against
the wishes of the husband.

In the first instance, it was held that marrying an already working wife does not by
implication mean that the husband gives up his claim to share a matrimonial house with
his wife. Similarly, even in the second instance, the husband does not abandon his right to
live with his wife. In these cases, the court, thus, has to look deeper into the facts and
circumstances of the case to determine and enforce the rights of the parties. However, in
the third instance, the court held that it was an “obvious case of unilateral and
unreasonable withdrawal from the society of the husband and thus a patent violation of the
mutual obligation of the husband and wife to live together.”

So in the above case of Mr. Mohan, his wife Ms. Radha stating that since her mother had
been living all alone in Gurugram as her father had went to Sat-sung Ashram at Raipur, so
this reason of her for not coming back to her matrimonial home cannot considered as
reasonable excuse on her part, even when her father was alive. Therefore this point also
directs towards the fact that the filing of petition of restitution of conjugal rights was valid
on part of our client i.e. Mr. Mohan.

3. AIR 1977 ILR Raj 113

3) The filing of the petition for the restitution of conjugal rights was valid.
Yes, the petition filed in by our client i.e. Mr. Mohan was valid for the restitution of the
conjugal rights against his wife Ms. Radha ( the Respondent) under the sec. 9 of the Hindu
Marriage Act 1955 which states that
“When either the husband or the wife has, without reasonable excuse, withdrawn from the
society of the other, the aggrieved party may apply, by petition to the district court, for
restitution of conjugal rights accordingly.”
So as in the case Ms. Radha who had went to her parent’s house for delivery of the child,
even after the delivery of their child i.e. Ram didn’t came back along with her husband, on
his request to their marital house that was in Noida. Instead made the proposal to live with
her and their child at Ms. Radha’s parental house in Gurugram. The act of the respondent
in her statement to her husband to stay with her and their child at Ms. Radha’s parental
house amounts to her withdrawal from the society, as in the case of
Saroj Rani Vs. Sudarshan Kumar Chadha4, in this case the Hon’ble Supreme Court
overruled the statement given in the case T. Sareetha Vs T. Venkata Subbaiah5.
T. Sareetha Vs T. Venkata Subbaiah5, where it was held that Sec.9 was violative of right of
privacy and human dignity guaranteed by Art. 21 of the Constitution. So, it was Ultra vires
the Constitution. A decree for restitution of conjugal rights constitutes grossest form of
violation of an individual’s right to privacy. It denies the women her free choice. State
coercion cannot presume a voluntary union of husband and wife. Sec.9 did not promote
any legitimate purpose.
Also in the case of Harvinder Kaur Vs. Harmender Singh6, where Rohtagi.J. strongly
dissented to the judgement given in the case of T. Sareetha Vs. T. Venkata Subbaiah5.
This statement was overruled in the case as stated above (Saroj Rani Vs. Sudarshan Kumar
Chadha4).
According to Mukherji.J., the object of restitution decree is to bring about cohabitation
b/w the estranged parties so that they can live together in matrimonial home in annuity.
This remedy aims at cohabitation & consortium, & not merely sexual intercourse. So they
held the same matter as valid.

4. 1984 AIR 1562, 1985 SCR (1) 303

5. AIR 1983 AP 356
6. AIR 1984 Del 66, ILR 1984 Del 546, 1984 RLR 187
 PRAYER

Therefore, in the lights of the issues raised, arguments advanced and authorities cited, it is most humbly
and respectfully prayed before this Hon’ble court to adjudge and declare that
1. Ms. Radha along with child Ram should come back to the matrimonial home at Noida
without any further clash.

2. Any other order which this Hon’ble court may be pleased to grant in the interest of the
equity, justice and good conscience.

All of which is most humbly and respectfully granted.

DATE:-
PLACE:-
PETITIONER’S COUNSEL