FAMILY LAW- 1 SUBJECT MOOT

BEFORE

THE HON’BLE SUPREME COURT OF INDIA

AJAY SHARMA

{APPELLANT}

V.

APARNA SHARMA

{RESPONDENT}

UNDER ARTICLE 142 OF THE CONSTITUTION OF INDIA

SUBMITTED TO:- SUBMITTED BY:-

MISS. NIDHI JAIN YUKTA SONI

ASST. PROF. [S.S.L.G] B.A. LL.B [Vth SEM]

MEMORIAL ON BEHALF OF APPELLANT

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TABLE OF CONTENTS

Index of Authorities 3

List of Abbreviations 4

5
Statement of Jurisdiction

Statement of Facts 6-7

Issue Raised 8

Summary of Issues 9

Arguments Advanced 10-13

14

Prayer

INDEX OF AUTHORITIES

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STATUTES REFERRED

 THE CONSTITUTION OF INDIA,1950

 HINDU MARRIAGE ACT,1955

CASES REFERRED

 Sandhya Rani v Kalyanram Narayanan (1994) Supp. 2 SCC 588

 Jayachandra v. Aneel Kaur 2005 (2) SCC 22
  Dinesh Kumar Mandal v. Mina Devi AIR 2005 Jhar 77 
 Kanchan Devi v. Promod Kumar AIR 1996 SC 3192
 Savitri Pandey v. Prem Chandra Pandey AIR 2002 SC 591
 Naveen Kohli v. Neelu Kohli AIR 2006 SC 1675
 Sukhendu Das v. Rita Mukherjee on 9 October, 2017
 Bipin Chander Jaisinghbhai Shah vs Prabhawati 1957 SC 176
 In Ramesh v. Prem Lata AIR 1979 MP 15 and
 Gopal v. Mithilesh AIR 1979 MP 316
 Geeta Jagdish Mangtani v. Jagdish Mangtani, (2008) 5 SCC 177
 Smt. Renuka Hunchikatti v. Sri Sangappa Hunchikatti 11
December 2019  
 Smt. Nirmala Manohar Jagesha v. Manohar Shivram Jagesha
AIR 1991 BOM 259

BOOKS REFERRED

 INDIAN CONSTITUTIONAL LAW – MP JAIN

 DD BASU INTRODUCTION TO CONSTITUTION
 PARAS DIWAN FAMILY LAW
 HINDU LAW- RR MAURYA

LIST OF ABBREVIATIONS

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1. AIR All India Reporter

2. Edn. Edition
3. L.R. Law Report
4. CO. Company
5. SC. Supreme Court
6. SCC Supreme Court Cases
7. V. Versus
8. E.R. English Reports
9. Q.B.D Queen Bench Division
10 Ex Exchequer
.
1 MBC Metropolitan borough council
1.
1 AC Appeal Cases
2.
1 K.B. King’s Bench
3.

STATEMENT OF JURISDICTION

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THE HON’BLE SUPREME COURT OF INDIA EXERCISES JURISDICTION TO HEAR

AND ADJUDICATE OVER THE MATTER UNDER ARTICLE 1421 OF THE
CONSTITUTION OF INDIA, 1950.

STATEMENT OF FACTS

1
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.

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1. Aparna got married to Ajay Sharma on 20 th January 2011 according to Hindu rites and
ceremonies in the presence of relatives. Soon after the marriage, temperamental
differences and clashes arose between the spouses. Aparna did not stay for more than five
months in the matrimonial home. She left the matrimonial home when she was three
months pregnant and gave birth to a son in her parental home. Ajay visited her in the
hospital at the time of the birth of their son but she refused to let him see the child and did
not accept the sweets and gifts he brought.
2. After staying apart for six years, Ajay filed a case in the Family Court seeking divorce on
the ground of desertion and cruelty under Section 13 of the Hindu Marriage Act, 1955
and irretrievable breakdown of marriage.
3. In reply to the petition, Aparna stated that Ajay’s family members had been abusive to
her due to cultural differences between her and them. She was a well-educated girl
brought up in a family with modern values; while Ajay’s family was very
conservative.  She bore with the abuse for five months and things crossed the limit when
his family members beat her up and Ajay’s brother kicked her in the stomach. It is Ajay
who was guilty of desertion and cruelty, and for failure prevent her ill-treatment.
4. The Family Court found in favour of Aparna and held that Ajay was guilty of desertion
and cruelty. It refused to consider the plea of irretrievable breakdown of marriage as no
such ground existed in the Hindu Marriage Act. In addition, the Family Court said that
Ajay’s plea could not be entertained as he was the wrong doer.
5. Ajay appealed against the Family Court’s decision to the High Court. He took the plea
that both the parties to the marriage are living separately for the last ten years and there
was no use in keeping such marriage intact.
6. Aparna took the plea that under the Hindu Marriage Act,1955 divorce could not be
granted on the ground of irretrievable breakdown of marriage. She also pleaded that
divorce would cause hardship to her and her son and that it was the principle of natural
justice that one should not be allowed to take advantage of one’s own wrong.
7. The High Court upheld the decision of the District Court and held that the law relating to
grant of divorce on the ground of irretrievable breakdown of marriage was not settled.
Ajay has now appealed to the Supreme Court with the permission of the High Court.
8. The case is listed for arguments before the Division Bench of the Supreme Court.

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ISSUES RAISED

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1. WHETHER DIVORCE CAN BE GRANTED ON GROUND OF IRRETRIEVABLE

BREAKDOWN OF MARRIAGE?

2. WHETHER THE APPELLANT IS GUILTY OF DESERTION AND CRUELTY?

SUMMARY OF ISSUES

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1. Whether divorce can be granted on ground of irretrievable breakdown

of marriage?
Yes, divorce can be granted on ground of irretrievable breakdown of marriage. In recent years
Courts have exercised their discretion in many cases to dissolve the marriage on the ground of
irretrievable breakdown of marriage. On this ground, it was not necessary for the Court to go into
the question of which party was at fault, for granting the decree of divorce. The only thing
needed to be proved before the Court is that relations between the husband and wife had reached
such a breaking point that there was no possibility of reconciliation.

2. Whether the appellant is guilty of desertion and cruelty?

No, appellant is not guilty of desertion and cruelty. As appellant has not left the respondent, it
was the respondent herself who left the appellant without any reason. Also respondent is taking
plea of cruelty just to prove herself right and these are just counter allegations on which reliance
cannot be placed, so no cruelty was being done on part of the appellants.

ARGUMENTS ADVANCED

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1. Whether divorce can be granted on ground of irretrievable breakdown

of marriage?

Yes, divorce can be granted on ground of irretrievable breakdown of marriage. “Irretrievable

breakdown of marriage” refers to a marriage that is totally unworkable, emotionally dead,
beyond salvage and has broken down irretrievably.

The term ‘irretrievable’ literally means something that cannot be recovered or recouped.
Hence irretrievable breakdown means the marriage has completely broken down resulting in
the couple living separately for a significantly long period of time, and there is no hope or
even an iota of chance for the couple to get back together as man and wife, emotionally and
physically.

The conception for including “Irretrievable Breakdown” as a ground for divorce goes back to
1978 when the 71st Report of Law Commission of India dealt with it as a ground for divorce
under the Hindu Marriage Act, 1955. It discussed about the extents and conditions concerning
the same. The 2009 report of the mentioned commission also revolved around the same concept
stating marriages should be legally dissolved when ‘wed-lock becomes a deadlock’.

The Supreme Court through series of verdicts has asked the centre to make amendments in law
in order to introduce irretrievable breakdown as a ground for divorce.

In Sandhya Rani v Kalyanram Narayanan2, this Court reiterated and took the view that since
the parties are living separately for the last more than three years, we have no doubt in our mind
that the marriage between the parties has irretrievably broken down. There is no chance
whatsoever of their coming together. Therefore, the Court in such cases, grant the decree of
divorce.

Jayachandra v. Aneel Kaur3– The issue involved here was if in the event of a long drawn
litigation process, a couple can claim divorce to shorten the agony due to the lengthy procedure
through the model of irretrievable breakdown of marriage?
The husband in the case complained about the “obnoxious and humiliating” behavior of the wife
and seeked divorce by mutual consent under section 13 of the Hindu Marriage Act, 1955 so as to
avoid unnecessary complications.

However, the court went through the evidence and provided a decree for judicial separation.
Supreme Court in the appeal rather decided that there did exist cruelty and it deduced from the
facts & circumstances that the marriage had irretrievably broken down. The court further stated
that it knows that this concept can be used to provide a decree for marriage but it continued with
a view to complete justice and shorten the mental agony of the parties.

2
(1994) Supp. 2 SCC 588
3
2005 (2) SCC 22 
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  Dinesh Kumar Mandal v. Mina Devi 4 where it was held that a couple living separately for
many years justify the fact that the marriage is broken beyond repair and even though the alleged
ground of adultery was not proven here, divorce was granted.

Another landmark case relating to the concept is of Kanchan Devi v. Promod Kumar5 wherein
the parties were staying separately for over a period of ten years and every attempt at any
reconciliation turned futile. The observations of the court clearly reinforced the fact that
irretrievable breakdown of marriage as a model to claim divorce has seeped into the decisions of
the courts.

In the landmark judgments of Savitri Pandey v. Prem Chandra Pandey6 and Naveen Kohli
v. Neelu Kohli7,The Apex court observed that even though efforts were made to amicable
settlements there was no cordiality left between the parties and therefore there was no possiblity
of rekindling the marriage. In such cases divorce was the only option in interest of both the
parties. The Court reiterated the need for inclusion of irretrievable breakdown of marriage as a
ground for divorce.

Sukhendu Das vs Rita Mukherjee 8 This court in a series of judgments has exercised its
inherent powers under Article 142 of the Constitution for dissolution of a marriage where the
Court finds that the marriage is totally unworkable, emotionally dead, beyond salvage and has
broken down irretrievably, even if the facts of the case do not provide a ground in law on which
the divorce could be granted. Admittedly, the Appellant and the Respondent have been living
separately for more than 17 years and it will not be possible for the parties to live together and
there is no purpose in compelling the parties to live together. In the peculiar facts of this case and
in order to do complete justice between the parties, we allow the Appeal in exercise of our power
under Article 142 of the Constitution of India, 1950.

2. Whether the appellant is guilty of desertion and cruelty?

No, appellant is not guilty of desertion and cruelty. As appellant has not left the respondent, it
was the respondent herself who left the appellant without any reason. Also respondent is taking
plea of cruelty just to prove herself right and these are just counter allegations on which reliance
cannot be placed, so no cruelty was being done on part of the appellants.

The expression “desertion” means the desertion of the petitioner by the other party to the
marriage without reasonable cause and without the consent of or against the wish of such party,
and includes the wilful neglect of the petitioner by the other party to the marriage.
4
AIR 2005 Jhar 77 
5
AIR 1996 SC 3192
6
AIR 2002 SC 591
7
AIR 2006 SC 1675
8
9 October, 2017
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The appellant has not deserted the respondent as appellant has not left the respondent without
any reasonable cause and has no intention to desert the respondent. Even the appellant visited
respondent in the hospital at the time of the birth of our son but respondent refused to let
appellant see the child and did not accept the sweets and gifts he brought. So, it was respondent
who has refused to meet the appellant. Moreover, there was lack of interest from respondent’s
side to meet the appellant. From this it is clear that appellant try to meet respondent but she was
not interested in the meeting so no desertion on part of appellant.

Apart from this, no cruelty was being done by the appellant. The word “cruelty” has not been
outlined and it's been utilized with respect to human conduct or human behaviour. It's the
conduct with respect to or in respect of marital status duties and obligations.

In Case of Bipin Chander Jaisinghbhai Shah vs Prabhawati 9 court held that “The offense of
desertion is a path of behavior which exists independently of its duration, however as a ground
for divorce it needs to exist for a duration of as a minimum 3 years at once previous the
presentation of the petition or, in which the offense seems as a cross-charge, of the answer.

In Ramesh v. Prem Lata10 and Gopal v. Mithilesh11it was held that factual separation without
an intention to desert is not enough. Intention to desert must be established.

Hon'ble the Apex Court in the case of Geeta Jagdish Mangtani vs. Jagdish Mangtani,12, held
as under that The husband has made allegation that after the birth of the son he had gone to the
house of the wife at Adipur, Gujarat where he was not allowed to meet her nor was he allowed to
see his son. Likewise, the wife has made allegations that her mother-in-law had made dowry-
related demands from her. These are mere allegations and counter-allegations on which reliance
cannot be placed. Since the wife left the matrimonial home on 2-6-1993 and has, admittedly, not
returned to the said home, the absence of any desire on her part to honour the matrimonial
obligation is clear.

In Smt. Renuka Hunchikatti v. Sri Sangappa Hunchikatti 13 The Karnataka HC has granted
divorce to a man on the grounds of cruelty by wife, who refused to stay with him. She also filed
9
AIR 1957 SC 176
10
AIR 1979 MP 15
11
AIR 1979 MP 316
12
AIR 2008 5 SCC 177
13
11 December 2019
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a petition demanding maintenance from her husband. The husband then filed a case for
restitution of conjugal rights following which the wife agreed to get back to her husband & got
the petition withdrawn. 

But after the husband withdrew his petition in the court, she refused to join him. In 2013 the
husband filed for a divorce in which the woman opposed. Despite this, the family court had
granted the divorce in 2014. The woman later challenged the lower court order in the HC.

On Dec 11 the Karnataka HC upheld the divorce granted by the lower court & held that living
away from your spouse amounts to cruelty. “From 2014-2019 she hasn't shown any interest in
joining her husband. The conduct of the appellant-wife is clear that she has no desire to live with
the husband till the date of filing of the petition which is a period more than the statutory period
of two years,” the High Court said.

In Smt. Nirmala Manohar Jagesha vs Manohar Shivram Jagesha14 Court held that “case for
divorce, false, baseless, scandalous, malicious and unproven allegations made in the written
statement may amount to cruelty to the other party and that party would be entitled to get a
decree of divorce on that ground”.

PRAYER

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AIR 1991 BOM 259
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Wherefore, in the light of the facts stated, issues raised, arguments advanced and authorities
cited, it is most humbly prayed before the Hon’ble Supreme Court may be pleased to adjudge
and declare that:

 The divorce be granted on the ground of irretrievable breakdown of marriage as the

relations between the husband and wife has reached such a breaking point that there was
no possibility of reconciliation.
 The respondent be held guilty of desertion and cruelty.
 The decision of lower courts must be set aside

And/or

pass any other order, direction or relief that it deems fit in the interest of justice, equity, and good
conscience.

All of which is most humbly prayed.

Counsel on behalf of appellant

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