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IN THE HON’BLE

SUPEREME COURT OF INDIA

IN THE PROCEEDING BETWEEN

Vishnu Dutt Sharma

(Appellant)

VERSUS

Manju Sharma
(Respondent)

Memorandum on behalf of the Respondent

MANJU SHARMA
(SHANTANU VAISHNAV)
(COUNSELS APPEARING ON BEHALF OF RESPONDENT)

ROLL NO.-142 SECTION-B SEM: II

DATE OF SUBMMISSION- 06/04/2018

HIDAYATULLAH NATIONAL LAW UNIVERSITY, RAIPUR

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LIST OF ABBREVIATIONS

1. AC Appeal Cases

2. AIR All India Reporter

3. Anr. Another

4. Art. Article

5. V. Verses

6. P. Page no

7. ed. Edition

8. HC High Court

9. H.L House of Lords

10. Hon’ble Honourable

11. Id. Ibidum

12. LJ Law Journal

13. L Ors. Others

14. p. page

15. Pvt. Private

16. Rs. Rupees

17. WWW World Wide Web

18. Ltd Limited

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Table of Contents

1. List of Abbreviations…………………………………………………… i

2. List of Authorities

• Statutes…………………………………………………………. iii
• Case Laws………………………………………………………. iii
• Websites………………………………………………………… iii
• Dictionaries……………………………………………………… iii

3. Statement of Facts……………………………………………………........ 01

4. Issues Raised………………………………………………………………. 03

5. Summary of Arguments…………………………………………………… 04

6. Written Pleadings ……………………………………………………… 05

7. Prayer for Relief……………………………………………………………. 08

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List of Authorities

Statutes and Other Authorities

1. HINDU MARRIAGE ACT,1955

Cases

1. V. Bhagat v. D. Bhagat 1994 SCC (1) 337

2. Prakash Chand Sharma v. Vimlesh 1995 Suppl. (4) SCC 642

Websites

1. www.manupatra.com

2. www.scconline.com

3. www.lexisnexis.com

4. www.indiakanoon.org

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Dictionaries

1. Black’s Law Dictionary, 9th Edition, West Group Publications, 2002

2. The Concise Oxford English Dictionary, Oxford University Press (10th Edn. 1999)
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Statement of facts

1. This appeal has been filed against the judgement and order date 7.5.2007 passed by
High Court of Delhi in Vishnu Dutt Sharma v. Manju Sharma FAO NO. 302 of 1996
decided on 7.5.2007

2. The marriage took place between the appellant and the respondent on 26.02.1993 and
a female child was born on 6.12.1993. In the petition filed by the appellant, it was
alleged that soon after the marriage the respondent was behaving in a cruel manner
derogatory to the appellant and the family members; that the respondent avoided
staying in the matrimonial home and never remained there for more than 25 days
together; and that after leaving the matrimonial home on 19.5.1993 while she was
pregnant with the child, the respondent never returned to live with the appellant.

3. It was also alleged that the father of the respondent is a retired Sub-Inspector of the
Delhi Police and brother is a Constable and both used to extend threats to the appellant
and his family members that they would be implicated in false cases. Respondent in her
written statement stated that on 14.09.1994, the appellant and his family members gave
her a severe beating which led to her being medically examined by the doctors at Ram
Manohar Lohia Hospital. A copy of the extract of the MLC register on that date was
enclosed to the written statement. It was also stated that the appellant and his mother
had taken the jewellery of the respondent and given it to the wife of the appellant's
brother and on asking, respondent was again assaulted and sought to be burnt alive by
the family members of the appellant.

4. The trial Court after examining the evidence came to the conclusion that no case of
cruelty had been made out as alleged by the appellant. The Trial Court held that
considering that the respondent had been turned out of the matrimonial house and had
been given beatings for which she -3- was medically examined; it was the respondent
who was treated cruelly by the appellant. Being aggrieved, the appellant preferred an
appeal in the High Court.
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5. The High Court, by the impugned order, while dismissing the appeal filed by
the appellant-husband, observed in paras 13 & 17 as under:

13. ...The respondent has categorically stated in her examination-in-chief that the
appellant and her in laws beat her mercilessly on 14.09.1994 as a result of which she
was medically examined at the Ram Manohar Lohia Hospital, New Delhi on
15.09.1994. She has also withstood the cross- examination on this aspect. On a reading
of the entire evidence, it is not possible to conclude that the appellant has been able to
establish that the respondent treated him with cruelty.

17. In the instant case, the respondent wife has both before the trial Court and this Court
been able to demonstrate that far from treating the appellant with cruelty, she in fact
suffered cruelty at the hands of the appellant. To grant divorce to the appellant despite
this only on the ground of irretrievable breakdown would not, in the view of this Court,
be doing justice to the respondent. We are not inclined to interfere with the finding of
fact of both the courts below that it was the appellant who treated the respondent with
cruelty, rather than the other way around.

6. The Appellant then moved this court for the relief.

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Issues Raised

The following questions are presented before the court in the instant matter –

1. Whether irretrievable breakdown of marriage is a ground of divorce

under section 13 of Hindu Marriage Act, 1955?
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Summary of the Arguments

(1) Whether the irretrievable breakdown of marriage is a ground of

divorce under section 13 of Hindu Marriage Act, 1955?

Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act,
1955. Because of the change of circumstances and for covering a large number of cases where
the marriages are virtually dead and unless this concept is pressed into services, the divorce
cannot be granted. Ultimately, it is for the Legislature whether to include irretrievable
breakdown of marriage as a ground of divorce or not but in our considered opinion the
Legislature must consider irretrievable breakdown of marriage as a ground for grant of divorce
under the Hindu Marriage Act, 1955. So, until there is no law regarding the same issue in Hindu
marriage act the divorce is not granted on the ground.

Therefore, the appellant cannot be granted divorce on the ground of irretrievable breakdown
of marriage. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu
Marriage Act, 1955. In the instant case the respondent wife has both before the trial Court and
this Court been able to demonstrate that far from treating the appellant with cruelty, she in fact
suffered cruelty at the hands of the appellant. To grant divorce to the appellant despite this only
on the ground of irretrievable breakdown would not, in the view of this Court, be doing justice
to the respondent.
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Pleadings

(1) Whether the irretrievable breakdown of marriage is a ground of

divorce under section 13 of Hindu Marriage Act, 1955?

1. Irretrievable breakdown of marriage is not a ground for divorce under Section 13 of the
Hindu Marriage Act, 1955. Because of the change of circumstances and for covering a
large number of cases where the marriages are virtually dead and unless this concept is
pressed into service, the divorce cannot be granted.

In this connection it may be noted that in Section 13 of the Hindu Marriage Act, 1955 (for short
'the Act') there are several grounds for granting divorce e.g. cruelty, adultery, desertion etc. but
no such ground of irretrievable breakdown of the marriage has been mentioned for granting
divorce. Section 13of the Act reads as under:
"13. Divorce--(1) Any marriage solemnized, 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 solemnization of the marriage, had voluntary sexual intercourse with
any person other than his or her spouse; or (i-a) has, after the solemnization of the
marriage, treated the petitioner with cruelty; or (i-b) has deserted the petitioner for
a continuous period of not less than two years immediately preceding the
presentation of the petition;

(ii) has ceased to be a Hindu by conversion to another religion;

(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.

(iv) has been suffering from a virulent and incurable form of leprosy; or

(v) has been suffering from venereal disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vii) has not been heard of as being alive for a period of seven years or more by those
persons

(viii) who would naturally have heard of it, had that party been alive."
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On a bare reading of Section 13 of the Act, reproduced above, it is crystal clear that no such
ground of irretrievable breakdown of the marriage is provided by the legislature for granting a
decree of divorce. This Court cannot add such a ground to Section 13 of the Act as that would
be amending the Act, which is a function of the legislature.

Learned counsel for the appellant has stated that this Court in some cases has dissolved a
marriage on the ground of irretrievable breakdown.

But the counsel for the respondent would like to bring to the notice of this hon’ble court that,
those cases have not taken into consideration the legal position which we have mentioned
above, and hence they are not precedents.

A mere direction of the Court without considering the legal position is not a precedent. If the
divorce is granted on the ground of irretrievable breakdown, then it will mean the addition of
a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is
also a ground for divorce.

But, this can only be done by the legislature and not by the Court. It is for the Parliament to
enact or amend the law and not for the Courts.

Hence, there is no force in the submission of the learned counsel for the appellant.

Had both parties been willing then the court could, of course, have granted a divorce by mutual
consent as contemplated by Section 13B of the Act, but in this case the respondent is not willing
to agree to a divorce, reliance was placed on V. Bhagat v. D. Bhagat1

In V. Bhagat v. D. Bhagat 1994 SCC (1) 337, this court has pointed out that merely there are
allegations and counter-allegations, or there is delay in disposal, would not constitute sufficient
grounds. There must be extraordinary features to warrant grant of divorce on the basis of
pleadings without a full trial. The Apex Court has pointed out that irretrievable breakdown of
marriage is not a ground by itself. In the case on hand, so far as wife is concerned, she merely
filed an application under Section 13B (1) and not under Section 13B (2), of the Act,
participated in reconciliation proceedings and thereafter withdrew her consent. While in the

1 1994 SCC (1) 337

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case of husband, he filed an application under Section 13B(1) of the Act and after six months,
he alone moved the application which is again not in spirit of Section 13B(2) of the Act.

Thereafter, during the pendency of the proceedings, he remarried and thereafter participated in
reconciliation proceedings. If wife prays for a divorce in this situation, it may be considered as
an extraordinary feature because her husband has remarried and she may not like to stay with
him or them. For the reasons stated, they were not staying together and the incident of second
marriage of husband had made the situation worst for her. Therefore, for a wife, it may be an
extraordinary feature for seeking divorce without a trial, but not for the husband.

In the absence of extraordinary features, and as husband has committed a wrong, he cannot plead
that divorce be granted on the ground of irretrievable breakdown of marriage. In view of the Apex
court’s judgement, irretrievable breakdown of marriage itself is not a ground. Secondly,
Parliament has yet not amended the provision. Further irretrievable breakdown of marriage, by
itself, is not a ground for dissolution of marriage, same is the position under the Hindu Marriage
Act, and it is irresistibly clear from the 71st Report of the Law Commission of India that under
the Special Marriage Act also irretrievable breakdown of marriage, by itself, has not yet been
made a ground for divorce.

The counsel for the Respondent would like to bring to the notice of this hon’ble court that in
Prakash Chand Sharma v. Vimlesh2 1995 Suppl. (4) SCC 642, wherein the husband had
remarried during the pendency of second appeal preferred by wife against the divorce. The
said appeal was delayed by three days, but it was instituted and pending on the date of second
marriage, this Court held that marriage was hit by Section 15 of the Act.

Husband pleaded that divorce should be granted on the ground of irretrievable breakdown of
the first marriage, particularly in view of his remarriage and birth of a child out of the
remarriage. Court held that husband cannot be given benefit of his own wrong. Equity
demands clean hands. Therefore, in the instant case, in view of the aforesaid decision,
husband cannot ask for a decree of dissolution of marriage on the ground of irretrievable
breakdown of the marriage.

2
1995 Suppl. (4) SCC 642
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Prayer for Relief

In the light of the issues raised, arguments advanced and authorities cited, the Counsel
for the Respondent humbly pray before this Hon’ble Court to;

1. To humbly dismiss the appeal

2. To not grant divorce on the basis of irretrievable breakdown of marriage

And/or pass any other order in favour of the Respondent that it may deem fit in the
light of justice, equity, and good conscience. All of which is most humbly prayed.

Place Counsel for Respondent

Delhi Shantanu Vaishnav