To: Neeraj Associates

From: Student Intern

Date: May 1, 2020

I. Client Information

Name: ‘A’

Address: Lucknow

Mobile:

Case No.:

Date of Birth:

II. Overview

1. 6 June,2016 : ‘A’, resident of Lucknow, got married to ‘b’, resident of Indore which was solemnized and
registered at Indore itself as per Hindu rituals.

2. 15 September,2017: A gave birth to a female child at her parental home.

3. B is working as a Sr. marketing officer in a private organization based at Indore and his father is posted at
Dewas as superintendent of police.

4. B’s mother is a home maker and his younger brother is an undergraduate. A,B,B’s mother and B’s brother all
used to live in Indore together.

5. After marriage, A was tortured by B and his family by taunting abusing and harassing her for not getting
the expected dowry and for giving birth to a girl.

6. 2 September, 2019 : A was forced to leave her matrimonial home along with her daughter and her entire
Stridhan was in custody of her mother in law which she refused to return.

7. A return to her parental home with no other option. Moreover, B filed a frivolous litigation under section 9 of
the Hindu marriage act against A at Indore.

8. A and her family is scared of her father in law as he has threatened them of implicating in a false first
information report.
III. Active Legal Issues:

1. What will be the remedies available?

2. Whether section 9 of the Hindu Marriage Act be transferred from Indore?

i. If yes, where and what will be the process?

ii. If no, why?

3. What will be the benefits of contesting Section 9 of the Hindu Marriage Act in Indore?

4. What will be the benefits of contesting Section 9 of Hindu Marriage Act if it can be transferred to some other
location?

5. Other Issues.

1. Available Remedies:

I. Either:

Section 9 of The Hindu Marriage Act 1955 - Restitution of conjugal rights.

Which says, if either the husband or the wife has, without reasonable excuse, withdrawn from the society of the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 and the
court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground
why the application should not be granted, may decree restitution of conjugal rights accordingly.

“Since A, the wife, was forced to leave her matrimonial home, it was a separation of both husband and
wife from each other’s residence and if A wants to stay in touch of the marriage, she may apply for
Restitution of conjugal rights.”

II. Or;

Section 10 of the Hindu Marriage Act 1955 - Judicial Separation

Which say, Either party to a marriage can file petition praying for decree of Judicial separation on any of the
grounds specified under Section 13(1) of the Act.

10 (1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may
present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1)
of Section 13, and in the case of a wife also on any of the grounds might have been presented.
(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to
cohabit with the respondent, but the court may, on the application by petition of either party and on being
satisfied of the truth of the statement made in such petition, rescind the decree if it considers it just and
reasonable to do so.

“Here, it is the choice of the wife, who was forced to leave coupled with tortures like taunting, abusing,
harassment, that whether she wants a judicial separation from the husband or not. If yes, she may d so
through this section.

III. Or;

Section 13 of the Hindu Marriage Act 1955 – Divorce

Which says, Any marriage solemnized, whether before or after the commencement of the 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; or

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

(iii) has been incurably of unsound mind, or has 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.

“Since it has been mentioned that the wife was subjected to several tortures, that is, taunting, abusing
and harassment, it seems to be an act of cruelty done to the wife by her in-laws out of inappropriate
reasons, she has complete right to present petition seeking divorce against her husband”
2. Whether section 9 of the Hindu Marriage Act be transferred from Indore.

The Territorial Jurisdiction of the case comes under The Family Courts Act.

i)Yes there can be a transfer of section 9 of the Hindu Marriage Act to Indore. The process shall consist of filing
an appeal to the Supreme Court, for the matter being of different cities, that is, from Lucknow to Indore, and
through the High Court if It was a matter of different states.

3. Benefits of contesting Section 9 of the Hindu Marriage Act in Indore.

1. If court order in favor restitution of conjugal rights and the husband does not take the wife back, the wife can
file execution proceeding in court for execution of Restitution of conjugal right decree and court will compel
him to take her back.

2.  If the husband fails to join the wife then this could become a ground for seeking divorce u/s 13(1A)(ii) of the
Hindu Marriage Act (after one year from the date of decree of RCR).

3. The implication of RCR in the wife’s favour will be that she still remains his wife for all practical purposes
and the husband cannot remarry without obtaining a decree of divorce from the Competent Court.

4. The wife can claim alimony or maintenance u/s 125 CrPC although even if she is employed.

4. Benefits of contesting Section 9 of Hindu Marriage Act if it can be transferred to some other location.

The benefit of contesting section 9 of the Hindu marriage act if it can be transferred to some other location will
be, that the court may transfer the petition instituted for restitution of conjugal rights in view of economic
hardship being faced by the applicant.

In the case Ekta Nagpal V. Yashveen Kumar, in the view of the hardship being faced by the applicant, the
high court of Punjab and Haryana allowed the application directed the impunged and petition to be withdrawn
from the court of Ferozepur and transferred to the family court of Gurugram.

“Here, since the wife have been away from her husband left with hardships and the burden of a girl
child, the above shall apply for her relief.”
5. Other Issues:

1. Provision of law to deal with domestic violence:

In 1983, domestic violence was recognised as a specific criminal offence by the introduction of section 498-A
into the Indian Penal Code. This section deals with cruelty by a husband or his family towards a married
woman. Four types of cruelty are dealt with by this law:

 conduct that is likely to drive a woman to suicide,

 conduct which is likely to cause grave injury to the life, limb or health of the woman,

 harassment with the purpose of forcing the woman or her relatives to give some property, or

 harassment because the woman or her relatives is unable to yield to demands for more money or does not
give some property.

The punishment is imprisonment for upto three years and a fine. The complaint against cruelty need not be
lodged by the person herself. Any relative may also make the complaint on her behalf.

“Here, the wife or even her family member may complaint against the in-laws for cruelty, including,
taunting, abusing and harassment for not providing the expected dowry and giving birth to a girl”

2.Streedhan:

As per The Supreme Court of India:

“A Hindu married woman is the absolute owner of her Streedhan property and can deal with it in any manner
she likes and, even if it is placed in the custody of her husband or her in-laws they would be deemed to be
trustees and bound to return the same if and when demanded by her”.

LAW:

Domestic Violence Act 2005 – Under Section 3 of the Domestic Violence Act 2005, denial of streedhan by
husband or in-laws accounts to economic abuse and they would be held under custody in such situations. This
law also protects a woman from cases of domestic violence that include actual abuse or abuse caused by
physical, sexual, verbal, emotional, or economic scenarios.