REVA INTERNAL MOOT 2021 TEAM CODE: R

TEAM CODE : R
REVATHI N S SUNDAR
SRN : R17BL040
:RUKSANA K A

SRN :R17BL041

REVA INTERNAL MOOT COURT 2021-2022

BEFORE THE HON’BLE SUPREME COURT OF PRADESH

SPECIAL LEAVE PETITION (CRL.) NO…… /2021

UNDER ARTICLE 136 OF THE INDIAN CONSTITUTION

IN THE MATTER OF:

MR. RAJESH RAO…………………………………………………………….……PETITIONER

Vs

MRS. REKHA RAO.................................................................................................RESPONDENT

UPON SUBMISSION TO THE HON’BLE CHIEF JUDGE OF

THE SUPREME COURT OF PRADESH

1
M[Type here] M [Type here]
REVA INTERNAL MOOT 2021 TEAM CODE: R

TABLE OF CONTENT

LIST OF ABBREVIATIONS............................................................................................................3
INDEX OF AUTHORITIES..............................................................................................................4
STATEMENT OF JURISDICTION..................................................................................................7
STATEMENT OF FACTS.................................................................................................................8
STATEMENT OF ISSUES..................................................................................................................10
SUMMARY OF ARGUMENTS.......................................................................................................11.
ARGUMENTS ADVANCED.......................................................................................................13-30
PRAYER............................................................................................................................................31

MEMORIAL ON BEHALF OF RESPONDENT 2

 LIST OF ABBREVIATIONS

ABBREVIATIONS EXPANSIONS
AIR All India Reporter
The Domestic D.V Act
violence Act, 2005
Bom Bombay
Cr.P.C. The Code of Criminal Procedure, 1973

Cri.L.J Criminal Law Journal

Madhya pradesh MP
Crl Criminal
Del Delhi
D.P Dowry Prohibition Act, 1961
Ed Edition
HC High Court
I.P.C The Indian Penal Code, 1860
I.E The Indian Evidence Act, 1872
ILR Indian Law Report
Mad Madras
MLJ Madras Law Journal
MP Madhya Pradesh
NCT National Capital Territory
SC Supreme Court
SCC Supreme Court Cases
V. or Vs Versus
Vol Volume
W.R Writ Petition

MEMORIAL ON BEHALF OF RESPONDENT

 THE INDEX OF AUTHORITIES

STATUTES
 Criminal Procedure Code 1973
 Pradesh Penal Code 1860
 Pradesh Evidence Act 1872
 Constitution Of Pradesh 1950
 Domestic Violence Act , 2005

CONSTITUTION
Constitution of Pradesh

BOOKS
 Pradesh Penal Code
 Code of Criminal Procedure
 S.C. Sarkar Law of Evidence (2010)
 Ratanlal&Dhirajlal Law of Crimes (2009)
 Domestic Violence Act, 2005

ONLINE DATABASE
 SCC ONLINE
 INDIAN KANOON
 WEST LAW

LEGISLATION
 The Constitution of Pradesh , 1950 (No. CA/83/Cons/49; Date fully effective: 26
January1950)

MEMORIAL ON BEHALF OF RESPONDENT

  The Pradesh Penal Code, 1860 (Act No. 45 of 1860)
 The Pradesh Evidence Act, 1872 (Act No. 1 of 1872)
 The Code of Criminal Procedure, 1973 (Act No. 2 of 1974)

CASE LAWS

 AndrahennedigeDinohamy v. WijetungeLiyanapatabendigeBlahamy 1927

SCC OnLine PC 51
 A. Ashok Vardhan Reddy v. P. Savitha 2012 (3) ALT (Cri) 163: 2012
Cri.L.J. 3462: 2013
 ArunaParmod Shah v. UOI,7 April2008, High Court of Delhi
 AmarchandSobhachand v CIT (1971) AIR 720 (SC)
 Azimuddin v. State of U.P. 2009 (2) LRC 150 (All): 2008 (2) All Cr. R 1953.
 Badri Prasad v. Director of Consolidation 1978 AIR 1557,1979 SCR (1)
 BharataMatha&Ors. Vs. R. VijayaRenganathan&Ors. Case Civil Appeal
No: 7108 of 2003
 Bhagirath v. State of M.P. AIR 1984 SC 1688: (1984) 4 SCC 222;
 Chanmuniya v. Chanmuniya Kumar Singh Kushwaha (2011) 1 SCC 141
 Commissioner of Income Tax v P. Mohanakala (2007) 210 CTR 20 (SC)
 CIT v MaganlalChaganlal (P) Ltd. (1997) 11 SCC 557 (SC)
 D. Velusamy v. D. Patchaiammal, Criminal Appeal Nos. 2028-2029_ of
2010
 Dennison Paulraj v. MayawinolaPaulraj, 2009 (2) DMC 252: 2008 (3)
LRC 248 (Mad).
 Dhakeswari Cotton Mills Ltd. v CIT West Bengal (1955) AIR 65 (SC)
 Gangadhar Pradhan v. Rashmibala Pradhan, 2012 Cri. L.J. 4106
 Gokak Patel v. Dundayya, (1991) 2 SCC 141: 1991 AIR SCW 505.
 Gurbakhsh Singh v State of Punjab (1955) AIR 320 (SC)
 Hero Vinoth (minor) v Seshammal (2006) AIR 2234 (SC)
MEMORIAL ON BEHALF OF RESPONDENT
 Indra Sharma V. V.K.V.Sarma, Criminal Appeal No: 2009 of 2013
 K. Ramaraju v. K. Lakshmi Pratima 2008 (2) ALD (Crl.) 1 (AP)
 Karim Khan v. State of Maharashtra, 2012 (1) JCC 764.
 Lata Singh v. State of UP and Anr, Writ Petition (CRL.208 of 2004)
 Mohabbat Ali Khan V. Md. Ibrahim Khan AIR 1929 PC 135.
 Mohankumar v. Santhamma 2012, (5) LRC 369 (Ker).
 MohitYadam v. State of Andhra Pradesh, 2010 (1) ALD (Cri.) 1 (AP).
 MW v. The Department Of community Services 2008 HCA 12
 ONGC Ltd. v SendhabhaiVastram Patel (2005) 6 SCC 454 (SC)
 Payal Sharma V. NariNikethan2001 SCC OnLine All 332
 Patel and others case 1985 AIR 1416
 Ramdev Food Products (P) Ltd. v. ArvindbhaiRambhai Patel APPEAL
(CIVIL) 8815 -8816 0F 2003
 Raghunath G. Pauhale v ChaganLalSundarji& Co. (1999) 8 SCC 1 (SC)
 S Kushboo V. Kanniammal(2010) 5 SCC 600
 State of U.P. v Ram Manorath (1972) 3 SCC 215 (SC)
 Santosh Hazari v PurushottamTiwari (2001) 3 SCC 179 (SC)
 Sikakollu Chandra Mohan v. SikakolluSaraswathi Devi, 2010 (2) ALD
(Crl.) 391 (AP).
 Sir Chunnilal Mehta & Sons Ltd. v Century Spinning & Mfg. Co. Ltd.
(1962) AIR 1314 (SC)
 Smt. Rekha Sabharwal v. Jitendra Sabharwal 2010 (2) LRC 74 (Del).
 State of Bihar v. DeokaranNenshi, AIR 1973 SC 908: (1973) 2 SCC 890;
 Tulsa and Ors V. Durghatiya, Appeal(Civil) 648 of 2002
 Thakur Gokalchand v. ParvinKumari, 1951 AIR 231
 Union of India v Rajeshwari& Co. (1986) 161 ITR 60 (SC)
 V.D. Bhanot v. Savita Bhanot (2012) 3 SCC 183
 VajreshVenkatarayAnvekar v. State of Kerala (2013) 3 SCC 462

MEMORIAL ON BEHALF OF RESPONDENT

 Vandana v. Mrs. JayantiKrishnamachari& Others, 2007) 6 MLJ 205 (Mad)
Para 15

MEMORIAL ON BEHALF OF RESPONDENT

 STATEMENT OF JURISDICTION

The Respondent humbly submits this memorandum in response to the petition filed before the
Hon’ble Sessions Court. The respondent invokes its jurisdiction under Art 136 of the pradesh
constitution.

Article 136 in The Constitution Of India 1950

136. Special leave to appeal by the Supreme Court
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any cause
or matter passed or made by any court or tribunal in the territory of India
(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order passed
or made by any court or tribunal constituted by or under any law relating to the Armed Forces

MEMORIAL ON BEHALF OF RESPONDENT

 STATEMENT OF FACTS

 Appellant(Mrs. Rekha Rao) and respondent were working together in a private

company. The Respondent, who was working as a Personal Officer of the Company,
was a married person having two children and the appellant, aged 33 years, was
unmarried. Constant contacts between them developed intimacy and in the year 1992,
appellant left the job from the above-mentioned Company and started living with the
respondent in a shared household.
 Appellant’s family members, including her father, brother, and sister, and the wife of
the respondent, opposed that live-in-relationship. She has also maintained the stand that
the respondent, in fact, started a business in her name and that they were earning from
that business. After some time, the respondent shifted the business to his residence and
continued the business with the help of his son, thereby depriving her right of working
and earning.
 Appellant has also stated that both lived together in a shared household and, due to
their relationship, appellant became pregnant on three occasions, though all resulted in
abortion. Respondent, it was alleged, used to force the appellant to take contraceptive
methods to avoid pregnancy. Further, it was also stated that the respondent took a sum
of Rs.1,00,000/- from the appellant stating that he would buy a land in her name, but
the same was not done. Respondent(Mr. Rajesh Rao) also took money from the
appellant to start a beauty parlour for his wife. Appellant also alleged that, during the
year 2006, respondent took a loan of Rs.2,50,000/- from her and had not returned.
 Further, it was also stated that the respondent, all along, was harassing the appellant by
not exposing her as his wife publicly or permitting to suffix his name after the name of
the appellant. Appellant also alleged that the respondent never used to take her
anywhere, either to the houses of relatives or friends or functions.
 Appellant also alleged that the respondent never used to accompany her to the hospital
or make joint Bank account, execute documents, etc. Respondent’s family constantly
opposed their live-in relationship and ultimately forced him to leave the company of the
appellant and it was alleged that he left the company of the appellant without
maintaining her. Appellant then preferred Criminal Misc. No. 520 of 2007 under
Section 12 of the DV Act before the III Additional Chief Metropolitan Magistrate,
Nagar, seeking the following reliefs: Pass a Protection Order under Section 18 of the
MEMORIAL ON BEHALF OF RESPONDENT
 DV Act prohibiting the respondent from committing any act of domestic violence
against the appellant and her relatives, and further prohibiting the respondent from
alienating the assets both moveable and immoveable properties owned by the
respondent. Pass a residence order under Section 19 of the DV Act and direct the
respondent to provide for an independent residence as being provided by the
respondent or in the alternative a joint residence along with the respondent where he is
residing presently and for the maintenance of Rs.25,000/- per month regularly as being
provided earlier or in the alternative to pay the permanent maintenance charges at the
rate of Rs.25,000/- per month for the rest of the life.

MEMORIAL ON BEHALF OF RESPONDENT

 STATEMENT OF ISSUES

ISSUE I

WHETHER THE TWO PERSONS HAVE RESIDED TOGETHER?

ISSUE II

WHETHER THE PERSONS JOINTLY OWN OR OWNED ANY PROPERTY ?

ISSUE III

WHETHER THE RELATIONSHIP IS OR WAS EXCLUSIVE ?

ISSUE IV

4. WHETHER THE RESPONDENT IS ENTITLED TO ANY RELIEF UNDER THE

PROVISIONS OF THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE
ACT, 2005 OR NOT?

MEMORIAL ON BEHALF OF RESPONDENT

 SUMMARY OF ARGUMENTS

1. WHETHER THE TWO PERSONS HAVE RESIDED TOGETHER

It is submitted before this Hon'ble court that, respondent humbly affirms that she had stayed
with the appellant, but he had not performed his duties and responsiblities towards the
respondent. In fact, started a business in her name and the appellant was also earning from that
business. Hence it was clear that the respondent has been grossly misused by the appellant,

2. WHETHER THE PERSONS JOINTLY OWN OR OWNED ANY PROPERTY ?

It is humbly submitted before this Hon'ble Court that the learned counsel would like to state
that as per the facts of the case there was no jointly owned property or owned any property.
The only thing that they were having was a company which the appellant has stared in her
name and in which they have worked together and later the appellant shifted that business to
his residence where he managed that business with his son and deprived her right of working
and earning. The respondent wants to stay that when they have only one business and that
also according to fact of the fact is not known whether they owned jointly or not. Even if they
have no properties the right to maintain her was still the appellants rights as she didn’t have
any work and when he has been cohabited with her since 1993 then its her duty to maintain
her.

3.WHETHER THE RELATIONSHIP IS OR WAS EXCLUSIVE ?

It is humbly submitted before the Hon'ble Court that the learned counsel would like to stay that
yes, the relationship was an exclusive relationship as the appellant knew what he is going to do
and he has admitted to that he has been cohabited with her since 1993 which is a very long
period of time and without maintain her. The learned wants the appellant to provide her with
maintenance as she doesn’t have any work and the appellant did not exposed her to the world
and kept her as a secret according to the respondent and fact of the case. This also indicates that
the appellant doesn’t want others to know about his and her relationship and don’t want to ruin
his life and just want to use the respondent and leave her. The respondent also alleged that he
took money from her and promised her what not but didn’t fulfilled any of the things which he
promised.

MEMORIAL ON BEHALF OF RESPONDENT

4. WHETHER THE RESPONDENT IS ENTITLED TO ANY RELIEF UNDER THE
PROVISIONS OF THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE
ACT, 2005 OR NOT?
The aggrieved person has been subject to Domestic Violence by the appellant and also has
been deprived of her right of maintenance, right to use the shared household etc., therefore
entitled to multifarious reliefs under the benevolent legislation of PWDVA, 2005.

MEMORIAL ON BEHALF OF RESPONDENT

 ARGUMENTS ADVANCED

ISSUE I
WHETHER THE TWO PERSONS HAVE LEAVED TOGETHER ?

It is humbly submitted before this honourable court that the appellant and respondent both have
lived together in a same house as stated in the facts.
"Respondent helped appellant by providing her house to stay when appellant was barged out of
house by her relatives and her mother".

1.1 THE FACT OF CASE REQUIRE CAREFUL PERUSAL

In the fact we can observe that appellant was living together with respondent after knowing the
circumstances that Respondent was already married and having two children's. Further the
appellant was not victim of any fraudulent or bigamous marriage and it was a live in
relationship for mutual benefits.

MEMORIAL ON BEHALF OF RESPONDENT

In the case of Mohabbat Ali Khan V. Md. Ibrahim Khan 1
The court held that marriage can be held legitimate only when partners have lived together as
spouse
"wherein Respondent never had the intent to marry appellant".

Later the Supreme Court in its judgment in Badri Prasad v. Director of Consolidation2
gave legal validity to a 50-year live-in relationship. But in the same case the Supreme Court
observed that, “The presumption was rebuttable, but a heavy burden lies on the person who
seeks to deprive the relationship of legal origin to prove that no marriage took place.

In the case of Payal Sharma V. Nari Nikethan 3with the bench consisting of justice M. katju
and justice RB Misra it was observed that " In our opinion a man and a woman even without
getting married can live together if they wish to. This may be registered has immoral by society
but it is not illegal in the eyes of law".
Respondent never announced their relationship with any of their friends nor he took appellant
publically.

In Patel and others case4 then supreme court observed that two people are in live in relationship
without a formal marriage are not criminal offenders. no legislation has been ever enacted by
Indian Parliament which denounces any live in relationship as illegal.

In case Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai Patel 5

The Court observed that two people who are in a live-in relationship without a formal marriage
are not criminal offenders. This judgment then was made applicable to various other cases.

Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Blahamy6

Here the Privy Council took a stand that, “where a man and a lady are proved to have lived
respectively as spouse, the law will presume, unless the opposite be obviously demonstrated that
they were living respectively in result of a legitimate marriage, and not in a condition of

1
AIR 1929 PC 135.
2
1978 AIR 1557,1979 SCR (1)
3
2001 SCC OnLine All 332.
4
1985 AIR 1416
5
APPEAL (CIVIL) 8815 -8816 0F 2003
6
1927 SCC OnLine PC 51
MEMORIAL ON BEHALF OF RESPONDENT
concubinage”

In the case S Kushboo V. Kanniammal 7the supreme court held that a living relationship comes
within the ambit of right to life under article 21 of the constitution of India.. The court further
held that live in relationships are permissible and the act of the two major living together cannot
be considered illegal or unlawful.

In case , Chanmuniya v. Chanmuniya Kumar Singh Kushwaha8

Where High Court declared that appellant wife is not entitled to maintenance on the ground that
only legally married woman can claim maintenance under Section 125 CrPC. But the Supreme
Court turned down the judgment delivered by the High Court and awarded maintenance to the
wife (appellant) saying that provisions of Section 125 CrPC must be considered in the light of
Section 26 of the Pwdva, 2005. The Supreme Court held that women in live-in relationships are
equally entitled to all the claims and reliefs which are available to a legally wedded wife

1.2 THE RESPONDENTS CONDUCT DOES NOT MANIFEST AN ULTERIOR

MOTIVE.
Respondent felt pity for her has she was thrown out of the house by her family so respondent
gave her space to stay never had an intent to marry.

1.2.1 COHABITATION WHILE STAYING TOGETHER.

Respondent agrees that there was cohabitation with appellant with the mutual understanding.
In the case of MW v. The Department Of community Services.9
"The relationship between two people who live together, even though it is sexual relationship
may or may not be a relationship in the nature of knowledge or civil union.
There is a difference between living together and living together with family.
Relationship refers to sexual relationship, not just for pleasure, but for emotional and intimate
relationship, for procreation of children, so as to give emotional support, companionship and
also material affection, caring, etc.

7
(2010) 5 SCC 600.
8
(2011) 1 SCC 141
9
2008 HCA 12

MEMORIAL ON BEHALF OF RESPONDENT

In Sir Chunilal Mehta & Sons Ltd. v Century Spinning & Mfg. Co. Ltd., 10 this Court had
laid down the following tests to determine whether a substantial question of law is involved. The
tests are: (1) whether directly or indirectly it affects substantial rights of the parties, or (2) the
question is of general-public importance, or (3) whether it is an open question in the sense that
there is no scope for interference by the High Court with a finding recorded when such finding
could be treated to be a finding of fact.

1.2.2 MONETARY BENEFITS WHILE STAYING TOGETHER.

Respondent neither asked nor receive any amount from the Appellant, later during her medical
treatment Respondent paid Rs 2,50,000/- for her expenses.
There were no joint accounts in their names.
There was no family account.
Respondents name was not mentioned in any of her bank account.
So the above context explains that there was no monetary benefits that was enjoyed by the
respondent.

In the aforesaid arguments, the respondent humbly affirms that respondent has stayed with
appellant but there was no duties and responsibility's to perform. So respondent has been grossly
misused by the appellant.

1.3 THAT THE APPEAL IS A QUESTION OF FACT AND NOT A QUESTION OF

LAW AND HENCE IS NOT MAINTAINABLE.
It is contended by the Respondent that the appeal doesn’t involve any substantial question of law
rather it involves pure question of fact and hence, is not maintainable. Questions of fact cannot
be permitted to be raised unless there is material evidence which has been ignored by the high
court or the finding reached by the court is perverse.11 The SC cannot consistently, with its
practice convert itself into a court of facts.12
Generally, on finding of fact, no interference will be made. 13 Even in cases where conclusions
are reached without proper discussion, yet if it involves finding on fact, no interference of SC is

10
Sir Chunnilal Mehta & Sons Ltd. v Century Spinning & Mfg. Co. Ltd.(1962) AIR 1314 (SC)
11
Union of India v Rajeshwari & Co. (1986) 161 ITR 60 (SC)
12
Gurbakhsh Singh v State of Punjab (1955) AIR 320 (SC)
13
CIT v Maganlal Chaganlal (P) Ltd. (1997) 11 SCC 557 (SC)
MEMORIAL ON BEHALF OF RESPONDENT
called for.14 If the conclusion is based on some evidence on which a conclusion could be arrived
at, no question of law as such will arise.15
It is now well-settled that the superior courts while exercising their jurisdiction under Article
136 may not exercise the same in appropriate cases.16
It is submitted that the Hon’ble High Court is a court of law itself and the High Court, after a lot
of analysis only, would’ve passed the judgment in such an appeal. Now the appellant is
appealing before this Hon’ble Court without any stable grounds for the appeal. There hasn’t
been any strong substantial question of law which is required to allow this appeal to be heard. It
is thereby humbly submitted that this appeal should not be maintainable in this court of justice.

Re-appreciation of evidence and substitution of the findings by the High Court is

impermissible.17 Hence, it is submitted that no substantial question of law is involved in the
present case.
Hence, after examining the case, it is humbly submitted before the Hon’ble Supreme Court that
this Appeal is not maintainable in the court.

14
Amarchand Sobhachand v CIT (1971) AIR 720 (SC)
15
CIT v Orissa Corp ltd. (1986) 159 ITR 0078 (SC)
16
ONGC Ltd. v SendhabhaiVastram Patel (2005) 6 SCC 454 (SC)
17
Commissioner of Income Tax v P. Mohanakala (2007) 210 CTR 20 (SC)
MEMORIAL ON BEHALF OF RESPONDENT
 ISSUE II
WHETHER THE PERSONS JOINTLY OWN OR OWNED ANY PROPERTY

The learned counsel would like to state that as per the facts of the case there was no jointly
owned property or owned any property. The only thing that they were having was a company
which the appellant has stared in her name and in which they have worked together and later
the appellant shifted that business to his residence where he managed that business with his
son and deprived her right of working and earning. The respondent wants to stay that when
they have only one business and that also according to fact of the fact is not known whether
they owned jointly or not. Even if they have no properties the right to maintain her was still
the appellants rights as she didn’t have any work and when he has been cohabited with her
since 1993 then it’s her duty to maintain her.

2.1 Women’s Rights in Live-in Relationship

1-Maintenance rights

In the year 2003, after the suggestions of the Malimath Committee, Section 125 was fused in
the CrPC (Criminal Procedure Code) to adjust the meaning of 'wife' and extend it to include
women who were in a live-in relationship. This guaranteed that her Financial Needs were
taken care of by the partner if she was not able to maintain herself or if the relationship got
alienated. Likewise, protection against all types of abuse is secured under the Domestic
Violence Act, 2005 just like married women.

2- Right to Property

After the amendment in 2005, the women’s right to ancestral property is secured by the
Hindu Succession Act, 1956. This provides her rights to ancestral and self-acquired property,
like son, regardless of her marital status. So, whether woman is married or in live-in-
relationship, the right to parental property will accrue to her by birth, while the property
acquired by oneself will be divided according to the will.

MEMORIAL ON BEHALF OF RESPONDENT

3-Children’s Inheritance Rights

The Supreme Court (SC) of India had held that if a man and woman living together for a long
period of time, would be considered as married and will enjoy all rights also the children born
to live-in partners are treated as Legitimate. Such children have the right to self-acquired
properties of their parents according to the Section 16 of the Hindu Marriage Act.

CrPC Section 125, provide rights to the children that they can always claim maintenance
even if their personal laws don’t offer maintenance to them. In case the live-in partners are
estranged, still they have obligation to maintain their children.

MEMORIAL ON BEHALF OF RESPONDENT

 In Bharata Matha & Ors. Vs. R. Vijaya Renganathan & Ors 18. Case, the SC has also ruled
that Child born out of a live-in-relationship may be permitted to inherit parent’s property, but
does not have any right to claim against Hindu Ancestral Coparcenary Property.

The Supreme Court (SC), in 2015, had ruled that an unmarried couple cohabiting for a long
period of time would be treated as married and will enjoy the same rights as a legally wedded
couple. The verdict came out when an SC bench was hearing a property dispute case where
the family members contested that their grandfather’s partner was not really his wife although
she had lived with him for over two decades. According to the family, she did not have any
right on their grandfather’s property.
Citing previous judgements, the Bench was quoted as saying, “It is well settled that the law
presumes in favour of marriage and against concubinage when a man and woman have
cohabited continuously for a long time. However, the presumption can be rebutted by leading
unimpeachable evidence. A heavy burden lies on a party, who seeks to deprive the
relationship of legal origin.”

2.2 PWDVA,2005 RETROSPECTIVE IN NATURE

The PWDVA, 2005 has a retrospective effect and the Hon’ble Supreme Court and various
High Courts in a number of judgments have laid down that an application under Section 12 of
PWDVA, 2005 is maintainable for acts of the parties prior to coming into force of the
act.19The Hon’ble Supreme Court in the case of V.D. Bhanotv. Savita Bhanot20 held that:

“8. The PWDVA, 2005 has a retrospective effect and an application by a women
who has shared a household in the past but was no longer residing with her live-in-partner
or who was subjected to any act of domestic violence prior to coming into force of the act
is maintainable.”
Again in Saraswathy v. Babu21, the same issue arose before the Apex court in 2013
wherethe twojudgebench said:
“14.We agree with the view expressed by the High Court that inlooking into

18
AIR 1984 SC 1688: (1984) 4 SCC 222

19
V.D. Bhanot v. Savita Bhanot (2012) 3 SCC 183.
20
ibid
21
Saraswathy v. Babu,MANU/SC/1193/2013.
MEMORIAL ON BEHALF OF RESPONDENT
 acomplaint under Section 12 of the PWDAct, 2005, the conduct of the parties even prior to
the coming in to force of the PWDAct ,could be taken into consideration while passing an
order under Section 18 ,19 and 20 thereof
.In our view, the Delhi High Court has also rightly held that even if a wife, who had
shared a household in thepast, but was no longer doing so when the Act came into force,
would still be entitled to the protection of the PWD Act, 2005”

Further more,in Gangadhar Pradhanv. Rashmibala Pradhan22the court ruled:

“20.The plea of the petitioner that the petition filed by the opposite party under
Section 12 of the Act, 2005 is not maintainable on the ground that the Act, 2005 applies
only prospectively, i.e., from the date of coming into force on 26 th October, 2006 is totally
misconceived and not sustainable in law”

The court has also held the same in Dennison Paulraj v. Mayawinola
Paulraj23; Mohankumar v. Santhamma24; Mohit Yadam v. State of Andhra Pradesh25. The
list of above cited cases is non-exhaustive andhence ,this Hon’ble court can take cognizance
of the present complaint u/Section 12 of the PWDVA, 2005 for the conduct of parties even
prior to the enforcement of the Act of 2005.

ISSUE III

WHETHER THE RELATIONSHIP IS OR WAS EXCLUSIVE ?

The learned counsel would like to stay that yes, the relationship was an exclusive relationship
as the appellant knew what he is going to do and he has admitted to that he has been
cohabited with her since 1993 which is a very long period of time and without maintain her.
The learned wants the appellant to provide her with maintenance as she doesn’t have any
22
Gangadhar Pradhan v. Rashmibala Pradhan, 2012 Cri. L.J. 4106.
23
Dennison Paulraj v. Mayawinola Paulraj, 2009 (2) DMC 252: 2008 (3) LRC 248 (Mad).
24
Mohankumar v. Santhamma 2012, (5) LRC 369 (Ker).
25
Mohit Yadam v. State of Andhra Pradesh, 2010 (1) ALD (Cri.) 1 (AP).
MEMORIAL ON BEHALF OF RESPONDENT
work and the appellant did not exposed her to the world and kept her as a secret according to
the respondent and fact of the case. This also indicates that the appellant doesn’t want others
to know about his and her relationship and don’t want to ruin his life and just want to use the
respondent and leave her. The respondent also alleged that he took money from her and
promised her what not but didn’t fulfilled any of the things which he promised. Later when
she was pregnant, he forced her to take pills for abortion as he didn’t want any child from this
relationship of his.

Legal provisions for the protection of women in a live-in relationship:

Couples wanted to explore various types of living a life, nowadays. Live in relationship has
become common since they know that the perception of understanding might vary. Though
Indian couples widely accept the concept, the patriarchal mindset has partially not been
eradicated from society. Women were taken for granted and mistreated by the male partner
on various occasions. But did not have any hope for legal remedies in Indian laws. However,
as cases of harassment and violence started increasing, the Supreme Court provided the
victims with the relief, produced under the Domestic Violence Act. This act does not specify
marriage but as a ‘relationship in the nature of marriage’.

The right to maintenance is also a provision exclusively provided for married women in the
existing personal laws. Still, as these laws do not govern anything less than a marriage, the
women in a live-in relationship cannot, at any instance, ask for maintenance from the male
partner. The courts later gave this a remedy by widening the scope of support under section
125. From the Code of Criminal Procedure, criminalising any man who does not provide
proper maintenance to the woman is questionable.

Domestic Violence Act: The legislature for the first time through the Protection of Women
from Domestic Violence Act, 2005 recognized the safety of women living in live-in
relationships. The Act extended its protection to those women who are not legally married but
are living with a male individual in a relationship which is similar to the ides of marriage.

Domestic relationship means a relationship between two persons who live or have, at any

MEMORIAL ON BEHALF OF RESPONDENT

 point of time, lived together in a shared household, when they are related by consanguinity,
marriage, or through a relationship in the nature of marriage, adoption or are family members
living together as a joint family. Tough the live-in relationship has not been defined in the
Act but the Court through its various decisions have tried to include live-in relationship under
the ambit of words used in the Act.

In the case of Aruna Parmod Shah v. UOI26

The petitioner challenged, the constitutionality of the Act on the grounds that,First, it
discriminates against men and Second, the definition of “domestic relationship” contained in
Section 2(f) of the Act is objectionable.

Arguing the matter, the petitioner stated that placing “relationships in the nature of marriage”
at par with “marriage” leads to the derogation of the rights of the legally-wedded wife. The
Delhi High Court rejected both these contentions regarding the constitutional status of the
Act. With regard to the second contention, which is of concern to us, the court said that “there
is no reason why equal treatment should not be accorded to a wife as well as a woman who
has been living with a man as his “common law” wife or even as a mistress” .

In case , Thakur Gokalchand v. Parvin Kumari27 ,Supreme Court has held that long and
continuous cohabitation of man and woman as a husband and wife may raise a rebuttable
presumption of marriage. Facts can be used to rebut or weaken this presumption.

According to National Family Health Survey28nearly two in five(37percent) married

women have experienced some form of physical or sexual violence by their husband.
Overall,one-third of women age 15-49 have experienced physical violence and about 1 in 10
haveexperiencedsexualviolence.Thisfiguretranslatesintomillionsofwomenwhohavesuffered,a
26
7 April2008, High Court of Delhi
27
1951 AIR 231
28
NFHS-3, The National Family Health Survey (NFHS) is a large-scale, multi-round survey conducted in a
representative sample of households throughout India.
MEMORIAL ON BEHALF OF RESPONDENT
 nd continue to suffer, at the hands of husbands and other family members. 29According to a
latest report prepared by India’s National Crime Records Bureau(NCRB), a crime has been
recorded against women in every three minutes in India. Every six hours, a young married
woman is found beaten to death, burnt or driven to suicide.

There is a phenomenal rise in crimes against women and the protection granted to
womenunder the Constitution of India and other laws can only be meaningful if those who
areentrustedwith doingjusticearesensitized towardswomen’sproblems.30

Criminal Procedure Code, 1973: Section 125 Cr.P.C. was incorporated in order to avoid
vagrancy and destitution for a wife/minor child/old age parents, and the same has now been
extended by judicial interpretation to partners of a live-in relationship. Malimath Committee
in the year 2003 submitted the report with the recommendation that the meaning of the term
‘wife’ under section 125 of Cr.P.C. should be amended. On recommendation of the Malimath
Committee report, a lady living in the live-in relationship for a sensible period of time can
now get the status of wife for the purpose of this section.

Protection of Women from Domestic Violence Act, 2005 provides protection to the women
living in the live-in relationship. On the other hand, the Courts in India have never taken the
steps to legalise the live-in relationships by directing the government to compulsorily require
an agreement between the unmarried couples as it may result into conflict with the basic
structure of society in India. And only those live-in relationships are considered to come
under

29
Acts of physical violence by the husband against his wife include: pushing, shaking, throwing something at
her, slapping, arm twisting, hair pulling, punching, kicking, dragging, beating, trying to choke or burn her
on purpose, and threatening her or attacking her with a weapon. Acts of sexual violence by the husband
include physically forcing the wife against her will to have sex or perform other sexual acts that she did not
want to perform.
30
Vajresh Venkataray Anvekar v. State of Kerala (2013) 3 SCC 462
MEMORIAL ON BEHALF OF RESPONDENT
the ambit of Domestic Violence Act, 2005 where the partners have cohabited together for a
sensible period of time.

In landmark case of S. Khushboo v. Kanniammal, the Supreme Court held that a living
relation comes within the ambit of right to life under Article 21 of the Constitution of India.
The court further held that live-in-relationships are permissible and the cat of two major
living together cannot be considered be illegal or unlawful.

In Lata Singh v. State of UP and Anr., the Supreme Court of India observed that live-in-
relationship between two consenting adults of heterogenic sex does not amount to any
offence, even though it may be perceived as immoral.

In Indra Sharma V. V.K.V.Sarma the Supreme Court observed that live-in or marriage like
relationship is neither a crime nor a sin though socially unacceptable in this country. The
decision to marry or not to marry or to have a heterosexual relationship is intensely personal.

In Tulsa and Ors V. Durghatiya and Ors, the Supreme Court gave legal validity to a 50 year
live in relationship of a couple. It was held that the court may presume the existence of any
fact which it thinks likely to have occur. Reading the provisions of Sec 50 and 114 of the
Evidence Act together, it clears that the act of marriage can be presumption arises in favour
of wedlock where the partners have lived together for a long term as husband and wife.
Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the
relationship of its legal origin. Law leans in favour of legitimacy and frowns upon bastardy.

In Chanmuniya V. Virendra Kumar Singh Kushwaha the Supreme Court observed that in

those cases where a man, who lived with a woman for a long period of time and even though
they may not have undergone legal necessities of a valid marriage, should be made liable to
pay the woman maintenance if he deserts her. The man should not be allowed to benefit from
the legal loopholes by enjoying the advantages of a de facto marriage without undertaking the
duties and obligations. Any other interpretation would lead the woman to vagrancy and
destitution, which the provision of maintenance in Section 125 is meant to prevent.

MEMORIAL ON BEHALF OF RESPONDENT

 ISSUE IV
WHETHER THE RESPONDENT IS ENTITLED TO ANY RELIEF UNDER THE
PROVISIONS OF THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE
ACT, 2005 OR NOT?
The respondent has been subject to Domestic Violence by the appellant and has been
economically deprived of her right of maintenance, therefore, entitled to different reliefs under
the benevolent legislation of PWDVA, 2005. The respondent has, therefore, the right to reside in
a shared household under Section 17, protection orders under Section 18, residence orders under
Section 19, monetary relief under Section 20 and compensation orders under Section 22 of the
PWDVA, 2005.

4.1 SHARED HOUSEHOLD VIS-À-VIS RESIDENCE ORDER31

4.1.1. Shared household
In the case of Vandana v. Mrs. Jayanti Krishnamachari & Others 32, the Madras HC
propounded that to be entitled to protection under Section 17, a woman will have to establish
two facts, namely:
“… (i) that her relationship with the opposite party is a “domestic relationship” and (ii) that the
house in respect of which she seeks to enforce the right is a “shared household”.
Under Section17(1)33, the respondent has a right to reside in the shared household with the
appellant as she was in a domestic relationship with him.

The significance of the right of a live-in-partner to reside with the appellant was expressed by
the Supreme Court in the case of Lalita Toppo v. The State of Jharkhand34, a live-in partner can
seek maintenance under the Domestic Violence Act. The 2005 Act provides an “efficacious
remedy” for maintenance even if the victim is not a legally wedded wife. The court in this case
held that, “In fact, under the provisions of the PWDVA, 2005, 2005 the victim i.e. estranged
wife or live-in-partner would be entitled to more relief than what is contemplated under Section
125 of the Code of Criminal Procedure, 1973, namely, to a shared household also.” Court also
stated that what would be significant to note is that economic abuse also constitutes domestic

31
Section 17 and Section 19, PWDVA, 2005
32
Vandana v. Mrs. Jayanti Krishnamachari & Others, 2007) 6 MLJ 205 (Mad) Para 15
33
(1) Notwithstanding anything contained in any other law for the time being in force, every woman in a
domestic relationship shall have the right to reside in the shared household, whether or not she has any right,
title or beneficial interest in the same.
34
Lalita Toppo v. The State of Jharkhand, (2019) 13 SCC 796
MEMORIAL ON BEHALF OF RESPONDENT
violence under the 2005 Act. In the instant case, in order to claim maintenance, it is not
necessary that the women has to be legally wedded wife of the appellant, even a live-in-partner
can claim for maintenance under the PWDVA, 2005.
Madras HC in Vandana vs. T. Srikanth & Others,35 held that for claiming the right it is not
necessary for a woman to establish her physical act of living in the shared household, either at
the time of institution of proceedings or as a thing of the past. But in the instant case, it was
clearly evident that the respondent was living in the shared household with the appellant which
entitles the respondent in the instant case to claim the maintenance from the appellant.
4.1.2. Residence orders36
These are orders passed to stop the woman from being dispossessed from the shared household,
and to stop or prevent any act that denies her the right of peaceful occupation in the household.
These orders detail the living arrangements of the Rekha Rao and Rajesh Rao, in such a way that
the woman is not subjected to further acts of domestic violence. The respondent in the instant
case had been subjected to verbal, physical and emotional abuse during the period of live-in-
relationship between the appellant and the respondent. When both the appellant and the
respondent lived together in a shared household and, due to their relationship, respondent
became pregnant on three occasions, though all resulted in abortion. It was alleged by the
respondent that the appellant used to force her to take contraceptive methods to avoid
pregnancy.
As there has been a history of subjecting the complainant to domestic violence and leave the
company of the respondent without maintaining her, court must pass an order of residence
restraining the respondent from dispossessing or in any other manner disturbing the possession
of the complainant from the shared household37, restraining the respondent or any of his relatives
from entering any portion of the shared household in which the complain ant reside38 and
restraining the respondent from alienating or disposing off the shared household or encumbering
the same39 so that she can enjoy her right to reside in a shared house hold peacefully or order for
in the alternative, a joint residence along with the appellant where he is residing presently

35
Vandana vs. T. Srikanth & Others, (2007) 6 MLJ 205 (Mad).
36
Section 19ofPWDVA, 2005.
37
Section 19(1) (a). restraining the respondent from dispossessing or in any other manner disturbing the
possession of the aggrieved person from the shared household, whether or not the respondent has a legal or
equitable interest in the shared household.
38
Section 19(1) (c). restraining the respondent or any of his relatives from entering any portion of the shared
household in which the aggrieved person resides.
39
Section 19(1) (d). restraining the respondent from alienating or disposing off the shared household or
encumbering the same.
MEMORIAL ON BEHALF OF RESPONDENT
4.2 PROTECTION ORDER40

Protection orders as under PWDVA, 2005 under Section18 states:

“The Magistrate may, after giving the aggrieved person and the respondent an opportunity of
being heard and on being prima facie satisfied that domestic violence has taken place or is likely
to take place, pass a protection order in favour of the aggrieved person and prohibit the
respondent from-”
Section 18 states that when the court is satisfied prima facie domestic violence has taken place
or is likely to take place, a protection order may be passed, which means that the magistrate will
pass the protection order only when he feels that the domestic violence is taken place or likely to
take place. It must be brought to the notice of this Hon’ble Court that whenever the respondent
has resided with the appellant in a shared household, she has always been subjected to ill-
treatment and abuse by him.
The Supreme Court in V.D. Bhanot v. Savita Bhanot41, has held that, prior conduct of the
parties has to be taken into consideration while passing an order under Section 18, 19 and 20 of
the Act. As the appellant has a history of subjecting the respondent to domestic violence
whenever she has resided with him, it is pertinent to pass order of protection under Section18 of
the PWDVA, 2005.
Henceforth, she is entitled to security and protection order in her favour so that no further acts.

4.3 MONETARY RELIEF42

Under Section 2043 of PWDVA, 2005, the aggrieved person is also entitled to get monetary
relief to meet the expenses incurred and loss suffered as a result of the domestic violence. The
ambit of Section 20 is very wide as the relief provided herein is not limited to the loss of
earnings, medical expenses, maintenance etc.

40
Section18, PWDVA, 2005.
41
V.D. Bhanot v. Savita Bhanot,(2012) 3 SCC 183,Para. 8. See also, Dennison Paulraj v. Mrs. Mayawinola,
2008 (3) JCC 1577.
42
Section 20, PWDVA, 2005
43
(1) While disposing of an application under sub-section (1) of Section 12, the Magistrate may direct the
respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person
and any child of the aggrieved person as a result of the domestic violence and such relief may include, but is
not limitedto,— (a) the loss of earnings; (b) the medical expenses; (c) the loss caused due to the destruction,
damage or removal of any property from the control of the aggrieved person; and (d) the maintenance for
the aggrieved person as well as her children, if any, including an order under or in addition to an order of
maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the
time being in force.
MEMORIAL ON BEHALF OF RESPONDENT
In the case of Rajesh Kurre v. Safurabai & Others44, the HC of Chhattisgarh observed;
“The words of provisions under Section 20 of the Act are clear, plain and unambiguous. The
provisions are independent and are in addition to any other remedy available to the aggrieved
under any legal proceeding before the Civil Court, Criminal Court or Family Court. The
provisions are not dependent upon Section125 of the CrPC or any other provisions of the Family
Courts Act, 1984 or any other Act related to award of maintenance.”

First and foremost, the appellant has been negligent and ignorant in discharging his duties as
towards the respondent as a live-in partner. He has deprived the respondent, her right to
maintenance. Therefore, she is denied of her right of maintenance for which she is entitled to get
monetary relief under this law, as the economic abuse continues.

Secondly, Respondent preferred a Criminal Misc. No. 520 of 2007 under Section 12 of the
PWDVA, 2005 before the III Additional Chief Metropolitan Magistrate, Nagar, seeking certain
reliefs. Where the learned Magistrate found proof that the parties had lived together for a
considerable period, for about 18 years, and then the appellant left the company of the
respondent without maintaining her. Learned Magistrate took the view that the plea of “domestic
violence” had been established, due to the non-maintenance of the appellant and passed the
order dated 21.7.2009 directing the appellant to pay an amount of Rs.18,000/- per month
towards maintenance from the date of the petition which was valid and justifiable. But, as a
consequence, thereof, due to the action taken by Rekha Rao and she being economically poor,
she incurred a lot of expenses to contest the same.

Thirdly, when Rajesh Rao aggrieved by the said order of the learned Magistrate, filed an appeal
before the Sessions Court under Section 29 of the PWDVA, 2005. The Appellate Court, after
having noticed that the respondent had admitted the relationship with appellant for over a period
of 14 years, took the view that, due to their live-in relationship for a considerable long period,
non-maintenance of the appellant would amount to domestic violence within the meaning of
Section 3 of the PWDVA, 2005. The appellate Court also concluded that the appellant has no
source of income and that the respondent is legally obliged to maintain her and confirmed the
order passed by the learned Magistrate. Not even a single payment is made the appellant till
date.

44
Rajesh Kurre v. Safurabai & Others, 2009 (1) MPHT 37 CHH
MEMORIAL ON BEHALF OF RESPONDENT
Moreover, the appellant took a sum of Rs.1,00,000/- from the respondent stating that he would
buy a land in her name, but the same was not done. Rajesh Rao also took money from the
appellant to start a beauty parlour for his wife. During the year 2006, respondent took a loan of
Rs.2,50,000/- from her and had not returned. In addition to this, the appellant started a business
in name of the respondent and both the appellant and respondent were earning from that
business. After some time, the appellant shifted the business to his residence and continued the
business with the help of his son, thereby depriving her right of working and earning, all of
which signify the strong economic condition of the appellant.

In Sabana (Smt.) @ Chand Bai and Anr. v. Mohd. Talib Ali and Anr.45, court held that;
“Section 20 empowers the Magistrate to pass appropriate orders extending monetary relief to the
aggrieved person to meet the expenses incurred or any losses suffered as a result of domestic
violence. Needless to say, that even if the domestic violence was committed prior to the coming
into force of the Act, the cause of action accrued to the aggrieved person to seek the relief under
Section 20 of the Act, may persist.”
Therefore, it is contended that this Hon’ble Court keeping in mind the economic conditions of
both the parties pass the order of monetary relief for welfare of the respondent.

4.5 COMPENSATION ORDERS46

PWDVA, 2005, empowers the magistrate to pass compensation orders under Section 22 47 in
favour of the aggrieved person for the damages sustained as a result of any injury including
mental torture and emotional distress caused by the acts of domestic violence committed by the
opposite party.
The appellant has faced an immense amount of mental torture as she has been living alone since
a very long time. She has not led a normal life which a girl expects to have after and have faced
a lot of hardship. She has not enjoyed the fruits of a peaceful life and was subjected to the
devilish and inhuman attitude from the appellant. She has lived without a man for all these years
and has moulded her life in order to sustain herself.

45
Sabana (Smt.) @ Chand Bai and Anr. v. Mohd. Talib Ali and Anr, 2014 (1) RLW 26 (Raj.): 2013 (4) WLN
306.
46
Section22, PWDVA, 2005
47
Compensation order - In addition to other reliefs as may be granted under this Act, the Magistrate may on
an application being made by the aggrieved person, pass an order directing the respondent to pay
compensation and damages for the injuries, including mental torture and emotional distress, caused by the
acts of domestic violence committed by that respondent.
MEMORIAL ON BEHALF OF RESPONDENT
In Sabana (Smt.) @ Chand Bai and Anr. v. Mohd. Talib Ali and Anr.,48 the Hon’ble High
Court of Rajasthan observed:
“It is pertinent to note that Section 22 makes the provision for grant of compensation and
damages to the aggrieved person for injuries including torture and emotional distress caused by
the act of domestic violence by the opposite party. As observed hereinabove, any physical or
sexual abuse may be the cause of torture and emotional distress and that apart, the emotional
abuse may give rise to a recurring cause of action to the aggrieved person, for the reliefs
specified and therefore, the actual act of domestic violence being committed before or after the
coming into force of the Act and the subsisting domestic relationship between the parties, are
hardly of any relevance so far as grant of the relief as specified under Section 22 of the Act is
concerned.”
The court must take a note that it was the appellant’s lawful duty to fulfil the needs of his live-
in-partner from the moment the appellant and respondent started living together, but the
appellant in the instant case, failed to do so and must compensate for the same.

PRAYER
48
Supra (note. 78)
MEMORIAL ON BEHALF OF RESPONDENT
Wherefore in the light of issues raised ,arguments advanced and authorities cited, it is most
humbly and respectfully prayed before this honourable court that it may be pleased,

In the light of Facts Stated, Issues Raised, Arguments Advanced and Authorities Cited the

Counsel on behalf of Respondents humbly prays that this Hon‘ble Court may be pleased to:

1. Pass a Protection Order under Section 18 of the DV Act prohibiting the respondent
from committing any act of domestic violence against the appellant and her
relatives, and further prohibiting the respondent from alienating the assets both
moveable and immoveable properties owned by the respondent.

2. Pass a residence order under Section 19 of the DV Act and direct the respondent to
provide for an independent residence as being provided by the respondent or in the
alternative a joint residence along with the respondent where he is residing
presently and for the maintenance of Rs.25,000/- per month regularly as being
provided earlier or in the alternative to pay the permanent maintenance charges at
the rate of Rs.25,000/- per month for the rest of the life.

3. Pass a monetary order under Section 20 of the DV Act directing the respondent to
pay a sum of Rs.75,000/- towards the operation, pre- and post-operative medication,
tests etc. and follow up treatments.

4. Pass a compensation order under Section 22 of the DV Act to a sum of

Rs.3,50,000/- towards damages for misusing the funds of the sister of the appellant,
mental torture, and emotional feelings

5. Pass an ex-prate interim order under Section 23 of the DV Act directing the
respondent to pay Rs.75,000/- towards the medical expenses and pay the
maintenance charges @ Rs.25,000/- per month as being paid by the respondent
earlier

MEMORIAL ON BEHALF OF RESPONDENT

 AND/ OR

pass any of such appropriate Order or Orders that this Hon‘ble Court deem fit and
proper in circumstances of the case and in the interest of justice. And for this act of kindness
the Counsel for Respondents shall be duty bound forever pray.

COUNSEL FOR RESPONDENT

MEMORIAL ON BEHALF OF RESPONDENT