Intra moot court competition

November 08, 2019

SOLJ&G

Before the Hon’ble High Court of Punjab & Haryana

at Chandigarh

In matter of
Mr. Appellant (husband)

vs.

Mrs. Respondent (wife)

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 Table of contents –

1. Statement of jurisdiction……………………………………………………… 3

2. Summary of arguments……………………………………………………..... 4

4. Arguments advanced

[1] Whether the contesting respondent has illicit relationship with respondent
no. 2? …………………………………………………………………………. 5,6,7

[2] Whether the contesting respondent treated the appellant with cruelty?........
…………………………………………………………………………………... 8,9

[3] Whether rape is ground of divorce?............................................................. 10

[4] Weather restitution of conjugal rights and condonation is possible?

…………………………………………………………………………………… 11

5. Prayer ………………………………………………………………………... 12

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 STATEMENT OF JURISDICTION
The hon’ble High court of Punjab & Haryana at Chandigarh has the
jurisdiction to hear the instant matter under section 13(1) of the Hindu
marriage act .
Section 13 (1) of the Hindu marriage act reads as:
“13 Divorce. —
(1) Any marriage solemnized, whether before or after the
commencement of this Act, may, on a petition presented by either the
husband or the wife, be dissolved by a decree of divorce on the ground
that the other party—
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[(i) has, after the solemnization of the marriage, had voluntary sexual
intercourse with any person other than his or her spouse; or]
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[(ia) has, after the solemnization of the marriage, treated the petitioner
with cruelty; or]”

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SUMMARY OF ARGUMENTS

[1.] Whether the contesting respondent has illicit relationship with respondent no. 2?

It is humbly submitted before this hon’ble court that contesting respondent has illicit relationship
with Mr. a (respondent no. 2). [1.1] the 6 day delay for meeting the appellant was unreasonable
[1.2] child to whom with the respondent was pregnant was not of the appellant [1.3] Adultery is
a ground for divorce under sec.13 (1) (i) of Hindu marriage act and respondent committed it.

[2] Whether the contesting respondent has treated the appellant with cruelty?

It is humbly submitted before the hon’ble court that the contesting respondent has treated the
appellant with mental cruelty. [2.1] respondent has falsely alleged that the family of appellant ill-
treated her [2.2] abortion without consent of appellant (husband) is cruelty [2.3] the scope of
cruelty is so vast that it can emerge as per the facts of case.

[3] Whether rape is a ground of divorce –

It is humbly submitted before the hon’ble court that rape amounts to ground for divorce. [3.1]
living with a rape victim harm the reputation of appellant and his family[3.2] it is cruelty to
move with a rape victim in society[3.3] contesting respondent is inconsistent.

[4] Whether restitution of conjugal rights and condonation is possible?

It is humbly submitted before the hon’ble court that neither condonation nor the restitution of
conjugal rights can occur in this case. [4.1] action of respondent isn’t conductive for marital
relationship. [4.2] no matrimonial offence is erased by condonation.

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ARGUMENTS ADVANCED

ISSUE 1

[1.] Whether the contesting respondent has illicit relationship with respondent no. 2?
It is humbly submitted before this hon’ble court that contesting respondent has illicit relationship
with Mr. A (respondent no. 2). [1.1] The 6 day delay for meeting the appellant was unreasonable
[1.2] Child to whom with the respondent was pregnant was not of the appellant [1.3] Adultery is
a ground for divorce under sec.13 (1) (i) of Hindu marriage act and respondent committed it.

[1.1] The 6 day delay for meeting the appellant was unreasonable-
It was humbly submitted before the hon’ble court that, the contesting respondent has taken more
than reasonable time i.e. 6 days, to meet the appellant without telling any reason. The respondent
was called by the appellant to meet on April 5, 2000 to share his plan of taking her along with
him; however, she came to meet the appellant on April 11, 2000. The respondent was at her
father’s house, which is 20 km from the house of appellant. It hardly takes 30 min to come to
appellant house from respondent home; however, it takes 6 days by the respondent to come to
appellant’s sister house.
This 6 days delay is caused as the respondent have to go with Mr. an on April 11, 2000 for
abortion. But later on Mr. A duped the respondent.
It is humbly submitted before the hon’ble court that appellant has submitted some original
documents as well as photocopies of some letters written by contesting respondent.
This clearly proves that the contesting respondent has illicit relationship with Mr.A.

[1.2] Child to whom with the respondent was pregnant was not of the appellant-
It is humbly submitted before the hon’ble court that the child to whom with the contesting
respondent was pregnant was also not of the appellant as the parties last lived with each other in
month of October – November, 1999. If we assume that the respondent was pregnant from the
last day appellant lived with respondent, i.e. last of November, then this means she was around
more than 4 or 5 months pregnant at the time of abortion.
The assumption that it is the child of appellant doesn’t seem true.

The MTP Act, 1971 Section 3

(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered
medical practitioner,-

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(a) Where the length of the pregnancy does not exceed twelve weeks, if such medical practitioner
is, or
(b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks,
if not less than two registered medical practitioners are, of opinion, formed in good faith, that-
(I) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of
grave injury to her physical or mental health; or
(ii) There is a substantial risk that if the child were born, it would suffer from such physical or
mental abnormalities as to be seriously handicapped.

MTP act clearly says that till 3rd month of pregnancy abortion is legal.
However the appellant doesn’t lived with the respondent from the last 4 to 5 months, hence it
clearly shows that the respondent have illicit relationship.

[1.3] Adultery is a ground for divorce under sec.13 (1) (I) of Hindu marriage act and
respondent committed it -
According to sec 3 (1) of the act
Divorce. —
(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a
petition presented by either the husband or the wife, be dissolved by a decree of divorce on the
ground that the other party—
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[(I) has, after the solemnization of the marriage, had voluntary sexual intercourse with any
person other than his or her spouse; or]

Also in case of Sachindranath Chatterejee v Sn . Neelam Chatterjee1 the husband leaves the
wife in his hometown so that she can complete her studies and go to another City for work. He
visited twice or thrice a month to meet her. Later he found his wife committing adultery. Petition
for divorce was accepted and a marriage gets dissolved.
Hence divorce should be granted on ground of adultery.
Also Ex –post facto law is Latin root for out of the aftermath, should apply on respondent no.2
as he commits adultery.
According to this law a person can be charged for any crime committed by him only in
accordance to the law which was in power on the day of committing that crime.
This law was based on article 20 of Constitution of India.

1
AIR 1970 Cal 38, 72 CWN 168

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It was humbly requested before the hon’ble court that respondent no .2 should be punished on
ground of sec.497 of IPC (as applicable at the time when crime occurred)
Sec 497 of IPC stats that –
Adultery.—Whoever has sexual intercourse with a person who is and whom he knows or has
reason to believe to be the wife of another man, without the consent or connivance of that man,
such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery,
and shall be punished with imprisonment of either description for a term which may extend to
five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.

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Issue 2

[2] Whether the contesting respondent has treated the appellant with cruelty?
It is humbly submitted before the hon’ble court that the contesting respondent has treated the
appellant with mental cruelty. [2.1] respondent has falsely alleged that the family of appellant ill-
treated her [2.2] abortion without consent of appellant (husband) is cruelty [2.3] the scope of
cruelty is so vast that it can emerge as per the facts of case.
[2.1] Respondent has falsely alleged that the family of appellant ill-treated her –
It is humbly submitted before the hon’ble court that the contesting respondent has falsely alleged
that the appellant’s parents ill-treated her , this is cruelty to the appellant and the appellant should
be given divorce on the ground of cruelty as stated in Hindu marriage act sec 13 (1)(is)
According to sec.13 (1) (ia)
(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a
petition presented by either the husband or the wife, be dissolved by a decree of divorce on the
ground that the other party—
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[(is) has, after the solemnization of the marriage, treated the petitioner with cruelty; or]

It is humbly submitted before the hon’ble court that in Neelu Kohli v. Naveen Kohli2
It was held that intention is not necessary element of cruelty.
Also it is not necessary that the cruelty should be aimed to the petitioner. Even if it is not aimed
to the petitioner but other person, the spouse can go and ask for cruelty because the Ambit of
mental cruelty is so was that almost everything is included in it. If we go through different acts
we find cruelty to be aim to the petitioner but this is for sure that if it hurt it caused to a person to
whom the petitioner is related, and then it also a case of cruelty to the petitioner and this is laid
down in number of decisions. The absence of intention should not make any difference in the
case, if by ordinary sense in human affair the act complained of could otherwise be regarded as
cruelty. Intention is not necessary element in cruelty. The relief to the party cannot be denied on
the ground that there has been a deliberate or willful ill-treatment.
In Shobha Rani v Madhukar Reddi3 the court held that the absence of intention should not
make any difference in the case, if by ordinary sense in human affair the act complained of could
otherwise be regarded as cruelty. Intention is not necessary element in cruelty. The relief to the
party cannot be denied on the ground that there has been a deliberate or willful ill-treatment.

[2.2] Abortion without consent of appellant (husband) is cruelty –

2
AIR 2004 ALL 1
3
(1988)1 SCC 105 8
It is humbly submitted before the hon’ble court that the contesting respondent aborted her child
without the consent of appellant hence it is mental cruelty to him.
In case of Rishikesh Sharma v Saroj Sharma4 it was held that undertaking the termination of
pregnancy without the consent of husband is cruelty. Also having affair is cruelty.

[2.3] The scope of cruelty is so vast that it can emerge as per the facts of case –
It is humbly submitted before the hon’ble court that in Royal Commission on marriage and
divorce5 in its report – said “we consider that it is not proper to have a detailed definition but to
allow the concept of cruelty to remain open to such adjustment as it is desirable to make to the
media of judicial decisions so as to Accord with the changing social condition”
V Bhagat vs D Bhagat5 the court held that what is cruelty in one case may not amount to cruelty
in another case. If it is better to be determined in each case having regard to the facts and
circumstances of the case. If it is a case of acquisition and allegation, regard must also be had to
the context in which they were made.
Shobha Rani vs Madhukar Reddy3 -the word cruelty has not been defined in the Hindu
Marriage Act 1955 it has been used in section ( 13 ) (I)(a) of the act in the context of human
conduct of behavior in relation to adversely affecting the other .each case may be different . We
deal with the conduct of human behavior that is no generally similar. Among the human beings
there is no limit to the kind of conduct which may constitutes cruelty. New types cruelty make
crop up in any case depending upon the human behavior, capacity or incapability to tolerate the
conduct compiled of. Such is the wonderful (sec) realm of cruelty.

4
(2007)2 SCC 262
5
(1944) 1 SCC 337
3
(1988)1 SCC 105 9
Issue 3

[3] Whether rape is a ground of divorce –

It is humbly submitted before the hon’ble court that rape amounts to ground for divorce. [3.1]
living with a rape victim harm the reputation of appellant and his family[3.2] it is cruelty to
move with a rape victim in society[3.3] contesting respondent is inconsistent

[3.1] Living with a rape victim harm the reputation of appellant and his family –
It is humbly submitted before the hon’ble court that living with a rape victim harms the
reputation of not only his but of all his family members. All the working members of the family
are in Defense services, they are in a duty to save the nation and motherland, and hence they all
have a reputation in the society higher than others.
In Atma Prakash Arora vs Neelam6 the court held that conduct or treatment which stands to
undermine the health, reputation, the working career or the like or affect the reasonable
happiness of a married life would constitutes cruelty.

[3.2] It is cruelty to move with a rape victim in society –

It is humbly submitted before the hon’ble court that it is cruelty to the appellant to move in the
society with a rape victim. It affects their marital happiness as well as it fills up the appellant
with embarrassment and humiliation to move with rape victim.
In 24 American jurisprudence7 -the term mental cruelty has been defined under “mental cruelty
as a course of unprovoked conduct toward one spouse which causes embarrassment, humiliation
and anguish so as to render the spouse life miserable and unendurable”.
In Kaslefsky v Kaslefsky8 the court held that, if the door of cruelty were opens too wide, we
should soon find you granting divorce for incompatibility of temperament. The Temptation must
be restricted least we slip into the state of affair where the Institution of marriage itself
Imperiled.

[3.3] Contesting respondent is inconsistent –

It is humbly submitted before the hon’ble court that the contesting respondent is inconsistent in
telling the truth and she is hiding truth. She said that she doesn’t remember what happened just
for hiding truth. Her entire story is disbelieved.

6
(1981) DMC 43
7
2d
8
(1950)2 ALL 398, 402 10
Issue 4

[4] Weather restitution of conjugal rights and condonation is possible?

It is humbly submitted before the hon’ble court that neither condonation nor the restitution of
conjugal rights can occur in this case. [4.1] action of respondent isn’t conductive for marital
relationship. [4.2] no matrimonial offence is erased by condonation.

[4.1] Action of respondent isn’t conductive for marital relationship –

It is humbly submitted before the hon’ble court that the respondent lives in an illicit relationship,
also both grounds of rejection for conjugal rights are fulfilled.
The grounds for rejection of restitution of conjugal rights are –if the action of the petitioner isn’t
conductive for marital relationship and if the couple needs to stay separately for the purpose of
employment.

[4.2] No matrimonial offence is erased by condonation-

It is humbly submitted before the hon’ble court that condonation is always subject to the implied
condition that the offending spouse will not commit a fresh matrimonial offence, either of the
same verity or of other. “No matrimonial offence is erased by condonation. It is obscured but not
obliterated”.
Also as stated in Dastane v Dastane9 connotation of a matrimonial offence is not to be linked
with full presidential pardon under article 7210. Which once granted wipes out guilt beyond the
possibility of revival.

9
(1975)2 SCC 326
10
Indian Constitution 11
 PRAYER

Wherefore in the light of the issues raised, argument advanced and authorities cited, the

Hon’ble High Court may be pleased to:

1. Declare that the contesting respondent has illicit relationship with respondent no .2.

2. The contesting respondent has treated the appellant with cruelty.

3. Rape is a ground for divorce.

4. Restitution of conjugal rights and condonation can’t be possible in this case.

AND/OR

Pass any other order, direction on relief that it deems fit in the interest of justice,

Equity and good conscious.

For this act of kindness, the appellant shall duty bound forever

Pray

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