SEEDLING SCHOOL OF LAW AND GOVERNANCE, JAIPUR NATIONAL UNIVERSITY,

JAIPUR

IN THE HON’BLE COURT OF DISTRICT AND SESSIONS COURT OF JAIPUR

CASE CONCERNING DIVORCE

(Under Section 13 of the Hindu Marriage Act, 1955)

-IN THE MATTER OF-

Rahul…………………………………………………………………………….........Petitioner

VERSUS

Anjali……………………………………………………………………….............Respondent

Memorial on behalf of the Respondent

DRAWN AND FILED BY COUNSEL ON BEHALF OF THE RESPONDENT

SUBMITTED BY- SUBMITTED TO-

AVIK RAJORIA PROF. POOJYASHREE KUMAWAT

BBA LLB (5TH SEMESTER) (ASST. PROFESSOR, SSLG)

MEMORIAL ON BEHALF OF RESPONDENT 1

 TABLE OF CONTENTS

INDEX OF ABBREVIATIOS………………………………………………………………………………..3

INDEX OF AUTHORITIES…………………………………………………………………………………4

STATEMENT OF JURISDICTION……………………………………………………………………………………………5

STATEMENT OF FACTS……………………………………………………………………………………...........................6

ISSUES RAISED……………………………………………………………………………………………………………….7

SUMMARY OF ARGUMENTS……………………………………………………………………………………………….8

ARGUMENTS ADVANCED………………………………………………………………………………..9

1. WHETHER THE PETITIONER IS ENTITLED TO DIVORCE.

PRAYER................................................................................................................................................................................... 12

TABLE OF ABBREVIATIONS

MEMORIAL ON BEHALF OF RESPONDENT 2

 ¶ Paragraph
A.I.R All India Reporter
ANR. Another
ART. Article
HON’BLE Honourable
LTD. Limited
ORS. Others
R/W Read With
S. Section
S.C. Supreme Court
S.C.C. Supreme Court Cases
S.C.R. Supreme Court Report
V. Versus

INDEX OF AUTHORITIES

MEMORIAL ON BEHALF OF RESPONDENT 3

STATUTES

1. THE HINDU MARRIAGE ACT, 1955

BOOKS

1. Paras Diwan and Peeyushi Diwan, Family Law, Eleventh Edition, 2018

CASES

1. Maya Devi v Jagdish Prasad, 2007

2. Neelu Kohli v Naveen Kohli, 2004

3. R. Srinivas Kumar v R. Shametha

DYNAMIC LINKS

1. www.casemine.in

2. www.livelaw.

STATEMENT OF JURISDICTION

The Petitioner herein has approached the Hon’ble family court of Delhi by

MEMORIAL ON BEHALF OF RESPONDENT 4

 invoking section 71 of the Family Courts Act,1984 which states that a family court

has and can exercise all the jurisdictions exercised by the district court of

subordinate civil court, corresponding to any law for the time being in force

provided that the disputes are of the nature specified in the explanation. With effect

to the very case the first explanation to this section states that the family court can

handle cases relating to proceeding between the parties to a marriage for a decree of

nullity of marriage (declaring the marriage to be null and void or, as the case may

be, annulling the marriage) or restitution of conjugal rights or judicial separation or

dissolution of marriage, thus making clear that the present court has jurisdiction.

STATEMENT OF FACTS

The following are the brief facts of the case:

1
Section 7 in The Family Courts Act, 1984

7. Jurisdiction.-

(1) Subject to the other provisions of this Act, a Family Court shall- -(1) Subject to the other provisions of this
Act, a Family Court shall-"
(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under
any law for the time being in force in respect of suits and proceedings of the nature referred to in the
explanation; and
(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.
Explanation.-The suits and proceedings referred to in this sub-section are suits and proceedings of the following
nature, namely:-
(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the
marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or
judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any
person;
(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of
either of them;
(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.
(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise-
(a) the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to order for
maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and
(b) such other jurisdiction as may be conferred on it by any other enactment.

MEMORIAL ON BEHALF OF RESPONDENT 5

 1. Both Rahul and Anjali, are Hindus. Their marriage was solemnized in 2000 in New
Delhi, as per Hindu rites and rituals under Hindu Marriage Act 1955.Anjali was
pursuing MBBS when she got married. She wanted to continue with her studies which
Rahul's family accepted.
2. Rahul got a lucrative job offer from Silicon Valley in the USA which he accepted and
reached there along with Anjali in 2003. After qualifying her US medical Board
Exam, she got a job in a hospital in that city. After acquiring citizenship in the US in
2010, both decided to start their family. However, it did not work out for them. They
decided to have the child through surrogacy after the failed medical help. 
3. In 2013, they came to India and approached their relatives for surrogacy, but they
failed to convince them. Finally, they approved Ms. Teena as a surrogate candidate. In
February 2013, artificial fertilization was carried out on Ms. Teena. At the time the
fertilization procedure was being executed it was decided, verbally between Rahul,
Anjali, and Teena that Teena would have no right over the child. Also, she would
have no access to the child at any time in the future. Later, they returned to the US.
4. In 2014, a baby girl was born. Both Rahul and Anjali were present there at the time of
birth. The doctor advised them that baby should not be made to travel for the first few
months. Anjali returned to the US as she had to join her work whereas Rahul was
allowed to work from home. So, he stayed back in Jaipur with Teena. Rahul
eventually fall for Teena because they were spending most of their time together and
ended up in a romantic relationship.
5. Rahul started ignoring Anjali's phone calls and texts. She decided to visit India for her
daughter and to clarify things with Rahul. She was disturbed when he did not come to
pick her up and when she found that Teena was living in her in-laws' houses. She tried
to clarify things with Rahul about his changed behavior that leads to heated arguments
and fights between them. Therefore, the petitioner has approached the court for the
restitution of conjugal rights and custody of the child.

ISSUES RAISED

1. WHETHER THE PETITIONER IS ENTITLED TO DIVORCE.

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SUMMARY OF ARGUMENTS

MEMORIAL ON BEHALF OF RESPONDENT 7

1. WHETHER RAHUL IS ENTITLED TO DIVORCE.

The respondent is entitled to divorce u/s 132 of the Hindu Marriage Act, 1955.

Section 13(1)(a) of the Hindu Marriage Act, 1955 states that the petitioner is entitled to Divorce on
the grounds of Cruelty and Irretrievable breakdown of marriage.

ARGUMENTS ADVANCED

1. WHETHER RAHUL IS ENTITLED FOR DIVORCE.

2
Divorce.
(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition
presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other
party
 (i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his
or her spouse; or
(a) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or
(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 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.

MEMORIAL ON BEHALF OF RESPONDENT 8

In the instant case, Rahul contended that Anjali that was too engrossed in her studies and never
supported or gave time at home due to which the couple often got into arguments/ fights which
affected Rahul’s mental health.

The respondent is entitled to divorce u/s 133 of the Hindu Marriage Act, 1955.

Section 13(1)(a) of the Hindu Marriage Act, 1955 states that the petitioner is entitled to Divorce on
the grounds of Cruelty.

In the case Maya Devi v. Jagdish Prasad4, Cruelty which is a ground for dissolution of
marriage may be defined as willful and unjustifiable conduct of such character as to cause
danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension
of such a danger. The question of mental cruelty has to be considered in the light of the
norms of marital ties of the particular society, to which the parties belong, their social values,
status, environment in which they live. Cruelty need not be physical. If from the conduct of
the spouse it is established or an inference can be legitimately drawn that the treatment of
the spouse is such that it causes apprehension in the mind of the other spouse, about his or
her mental welfare then this conduct amounts to cruelty.

Further, it is settled in case Neelu Kohli v. Naveen Kohli 5, The expression Cruelty as
envisaged under section 13 of the Act clearly admits in its ambit and scope such acts
which may even cause mental agony to aggrieved party. Intention to be cruel is not an
essential element of cruelty as envisaged under section 13(1) (i-a) of the Act. It is
sufficient that if the cruelty is of such type that it becomes impossible for spouses to live
together.

It is clearly stated in the instant case that after the marriage the petitioner often quarreled with
him on flimsy reasons, she often used to stay secluded from him and his family she made
decisions according to her will and convenience and never consulted him or his family which
often resulted in quarrels between them and affected Rahul’s mental health.

In 2014 when their baby girl was born pre matured Anjali gave her work and life in USA
priority over her child and abandons them and returns to USA so Rahul decides to stay in
India with the child since it was not safe for her to travel at that time and continue his work
3
Divorce.
(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition
presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other
party
 (i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his
or her spouse; or
(a) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or
(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 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.
4
AIR 2007 SC 1426
5
AIR 2004 All 1
MEMORIAL ON BEHALF OF RESPONDENT 9
from home, Teena (the child’s surrogate mother) agreed to take care of the child and stay
with them. Afterwards when Anjali came back to India she again started engaging in heated
arguments and fights over flimsy reasons.

In India, with regards to the Hindu Marriage Act and Special Marriage Act, the Government
of India has attempted to include ‘Irretrievable Breakdown of Marriage’ as a ground of
divorce as per the recommendations of the 71st report of the Law Commission of India.

Legally speaking, Irretrievable Breakdown of Marriage is defined as:

“The situation that exists when either or both spouses are no longer able or willing to live
with each other, thereby destroying their husband-wife relationship with no hope of
resumption of spousal duties.”

In other words, Irretrievable breakdown of marriage can be defined as such failure in the
matrimonial relationship or such circumstances adverse to that relationship that no reasonable
probability remains of the spouses remaining together as husband and wife for mutual
comfort and support.

In the Supreme Court case R. Srinivas Kumar v. R. Shametha, the Bench of Justices Sanjay
Kishan Kaul and  KM Joseph passed a judgment to this effect after taking note that the
Supreme Court has earlier invoked its inherent powers under Article 1426  to grant a divorce
on the ground of irretrievable breakdown of marriage. Further, the Court took note that this
was done “not only in cases where parties ultimately, before this Court, have agreed to do so
but even otherwise.” 

The Supreme Court found that the personal relationship between the parties seemed to have
been greatly deteriorated and strained. As noted in the judgment,

“… the relationship appears to have deteriorated to such an extent that both parties see little
good in each other; though the respondent insists that she wants to stay with the appellant. In
our view, this insistence is only to somehow not let a decree of divorce be passed against the
respondent. This is only to frustrate the endeavour of the appellant to get a decree of divorce,
completely losing sight of the fact that matrimonial relationships require adjustments from
both sides, and a willingness to stay together. The mere say of such willingness would not
suffice …

6
Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc ( 1 ) The Supreme
Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing
complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be
enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by
Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe
(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects
the whole of the territory of India, have all and every power to make any order for the purpose of securing the
attendance of any person, the discovery or production of any documents, or the investigation or punishment of
any contempt of itself.

MEMORIAL ON BEHALF OF RESPONDENT

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… We have noticed above that all endeavours have been made to persuade the parties to live
together, which have not succeeded. For that, it would not be appropriate to blame one or
the other party, but the fact is that nothing remains in this marriage. The counsellor’s report
also opines so. The marriage is a dead letter.”

The Bench noted that multiple efforts were made to mediate between the parties, but proved
unsuccessful. As a last resort, a counsellor was appointed in an attempt to fix the issue. The
Court also took serious note of the critical opinion given by a marriage counsellor that,

“… the separation of sixteen (16) years since 2003 had made both the parties bitter and
cynical about the relationship and there was no sign of any affection or bonding on either
side. The parties apparently had no history of pleasant time and only feelings of resentment
arising from the several court cases”

In view of these peculiar facts, the Bench remarked, “on the ground of irretrievable
breakdown of marriage, if this is not a fit case to grant divorce, what would be a fit case!”

It went on to eventually hold,

“We are of the view that an end to this marriage would permit the parties to go their own
way in life after having spent two decades battling each other, and there can always be hope,
even at this age, for a better life, if not together, separately.   We, thus, exercising
our jurisdiction under Article 142 of the Constitution of India, grant a decree of divorce and
dissolve the marriage inter se the parties forthwith.”

Henceforth, This prompted Rahul to file for a divorce under Section 13(1)(i-a) of the Hindu
Marriage Act, 1955 on the ground of cruelty before the lower Court. Rahul contended that
the loneliness and lack of co-habitation had caused him extreme physical and mental torture.

PRAYER

MEMORIAL ON BEHALF OF RESPONDENT

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 Wherefore in the light of the Issues raised, Argument Advanced and Authorities
Cited,

the Honorable Court may be pleased to adjudge and declare that:

1. The respondent is entitled for divorce.

AND/OR

Pass any other decree, order, direction, or relief that it deems fit in the interest of
Justice, Equity, and Good Conscience.

For this act of kindness, the Petitioner shall duty-bound forever pray.

(COUNSEL ON BEHALF OF RESPONDENT)

MEMORIAL ON BEHALF OF RESPONDENT

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