BM LAW COLLEGE

AFFILIATED TO JAI NARAYAN VYAS UNIVERSITY JODHPUR

APPROVED BY BAR COUNCIL OF INDIA
Session 2021-22
B.A. LL.B. 5th SEMESTER

SUBMITTED BY SUBMITTED TO
DR. PRIYANKA GOSWAMI ASHOK JAIPAL

MEMORIAL FOR DEFENDANT

 BM LAW COLLEGE MOOT COURT MEMORIAL, 2021

IN THE HON’BLE FAMILY COURT OF JODHPUR, RAJASTHAN

TEAM CODE-

IN THE MATTER OF

Suman …PETITIONER

V.

Amar …RESPONDENT

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT

MEMORIAL FOR DEFENDANT

 TABLE OF CONTENTS

1. LIST OF ABBREVIATIONS
2. INDEX OF AUTHORITIES
3. STATEMENT OF JURISDICTION
4. STATEMENT OF FACTS
5. STATEMENT OF ISSUES
6. SUMMARY OF ARGUMENTS
7. ARGUMENTS ADVANCED
8.prayer of relief

MEMORIAL FOR DEFENDANT

 LIST OF ABBREVIATIONS

& And

AIR All India Reporter

ALL Allahabad

Art. Article

Govt. Government

HMA Hindu Marriage Act

Hon‟ble Honourable

i.e. That is

No. Number

SC Schedule Caste

SC Supreme Court0

v. Versus

Vol. Volume

www World Wide Web

MEMORIAL FOR DEFENDANT

 INDEX OF AUTHORITIES

1. Table of Cases

S. No. Name of the Cases and Case Citation

1. Saritha v R. Ramachandran
2. On Behalf Of Workman It Was ... vs State Of Maharastra, Air 2005 Sc ... on 13 March,
2009

3. G.V. Siddaramesh v. State of Karnataka, (2010) 3 SCC 152.

4. Harish Chandrel Drall v. Suresg Wati

5. matter of Sheo Nath Singh v. Sujata

6. Cs No: 83/09 vs Union Of India on 27 July, 2010

Treatises, Books, Reports And Digests

1. Indian penel code [act no.xlv of 1860]

2.
Hindu law (family law-1) 2nd edition

A. Journals Referred

1. All India Reporter

4. Supreme Court Cases

B. Database Referred

1. www.indiankanoon.com

MEMORIAL FOR DEFENDANT

2. www.tilakmarg.com

3. www.manupatrafast.com

4. www.scconline.com

MEMORIAL FOR DEFENDANT

 BM LAW COLLEGE MOOT COURT MEMORIAL, 2021

STATEMENT OF JURISDICTION

THE PETITIONER HAS APPROACHED THIS HON‟BLE FAMILY COURT OF

JODHPUR, RAJASTHAN UNDER SECTION 7 OF FAMILY COURTS ACT, 1984. &
ALSO UNDER SEC. 13 OF HMA, 1955.

MEMORIAL FOR DEFENDANT

 STATEMENT OF FACTS

For the sake of brevity and convenience of this Hon‟ble Court the facts of the present case are
summarised as follows:

1. Suman and Amar, who reside in NCT of Delhi, solemnised their marriage under the Hindu
Marriage Act, 1955 (hereinafter “HMA”), after suman’s father’s sudden illness. Her father
expressed to her that his last wish was to see her get married and have a family of her own.
At the time of marriage, Amar, 26, was working in a private bank and 19-year old suman
was in her 2nd year, pursuing Psychology from Delhi University.
2. Before marriage, Suman expressed that she wanted to continue with her studies without any
hindrances even after marriage. Amar and his family agreed to her demand and the couple
tied the knot on 21 st of October 2018 as per Hindu rites and rituals recognised under HMA.

3. Soon after their marriage, Manju’s (Amar’s sister) marriage was fixed to be held on 15th
November, 2018. The burden of executing the preparations for the marriage were put on Amar and
Suman entirely due to which she was unable to attend her lectures for about 2 months. Manju got
married and moved to Jodhpur with her husband.
4. After Manju’s wedding, most of the household burden fell on suman’s head. She was not
able to manage the housework with her studies due to which she was forced to take leaves
from college. Amar suggested that settling in the marriage was more important and that she
could always resume/restart her course in the manner of open learning where she wouldn’t
have to go to college. Being passionate about her studies, she started thinking about
alternatives.
5. Despite all her efforts, she was never appreciated for the work she did at home. Her in-laws
were always critical of her work and started ridiculing her. Her father-in-law would also never eat
the food prepared by suman. One day she actually saw her father-in-law throwing away the food
she had cooked. Amar tried helping suman by suggesting ways and means which she could adopt
to win the hearts of his parents, but nothing worked. This led to regular arguments between the
couple. The next day, for her mother-in-law’s kitty party, Suman made all the arrangements and
prepared dishes for the guests, as directed by her mother-in-law. Despite this, she was again
ridiculed by her mother-in law in front of all her friends saying that the food was tasteless and
inedible.

MEMORIAL FOR DEFENDANT

6. Suman who was reaching her saturation point, could not take it anymore and, in anger, she
started crying and threw the plates in everyone’s presence. Shouting at her mother-in-law,
she went out of the house saying- “mujhe kabhi is ghar mein shaadi karke aana hi nahi
chahiye tha”. She returned to the house around 8:00 PM.
7. She sensed that everybody knew about the incident. Before she could say anything, Amar
lashed out at her saying “How dare you behave with my mother like that?”. On hearing this
Suman furiously said -Your entire family does not know how to behave. You are spineless
as you cannot stand up with me. The mother-in-law then went and tightly held Suman by her
hair telling her to shut up. Amar tried to tell her mother-in-law to leave her. Next morning,
in an attempt to make things normal, Amar tried to console suman and apologized to her. He
said that she should apologies to his mother, to which suman refused. Later that day Suman
called up her parents saying that she wants to leave her matrimonial home and live with them.
They said that she should try and mend things with her new family now. Thereafter, Suman
apologized to her in-laws, but they did not pay any heed to it and even Amar started becoming
distant from her.
8. One day Amar and Suman got into a heated argument where they badly abused each other.
She then complained to the police against Amar and his parents for harassing her mentally
and physically.
9. FIR was registered against the three of them under Section 498A of the Indian Penal Code,
1860 (hereinafter “IPC”), and they were arrested.
10. After being released on bail, Amar filed a petition for divorce under Section 13 of the HMA
praying for a divorce to be granted to him on the ground of cruelty by Suman .
11. He alleged that Suman used to disrespect him and his parents and would always abuse them.
In the divorce petition filed by Amar, the Family Court decreed the divorce petition in Amar’s
favour and the divorce was granted.
12. Suman appealed against it before the High Court where she prayed that the allegations of
cruelty raised against her were false and baseless, and such a decree should not be upheld
because she was the victim of all the harassment by the family. The decision of the High
Court in this case is pending.

MEMORIAL FOR DEFENDANT

 STATEMENT OF ISSUES

Issues that would be required to be adjudicated are-

1. Whether Amar was actually subjected to the harassment and cruelty as a
result of which he has filed the divorce petition under section 13 of HMA?

2. Whether he is entitled for the relief on the ground of cruelty or not?

MEMORIAL FOR DEFENDANT

 SUMMARY OF ARGUMENTS

1. Whether Amar was actually subjected to the harassment

and cruelty as a result of which he has filed the divorce
petition under section 13 of HMA?

Section 354A Indian Penal Code 1860 (IPC) sexual harassment

[1] A man committing any of the following acts—

(i) physical contact and advances involving unwelcome and explicit sexual overtures; or

(ii) a demand or request for sexual favours; or

(iii) showing pornography against the will of a woman; or

(iv) making sexually coloured remarks shall be guilty of the offence of sexual
harassment.

shall be guilty of the offence of sexual harassment.

[2]Any man who commits the offence specified in clause

(i) or clause

(iii) of sub-section

(1) shall be punished with rigorous imprisonment for a term which may extend to three
years, or with fine, or with both.

[3] Any man who commits the offence specified in clause (iv) of sub-section (1) shall be
punished with imprisonment of either description for a term which may extend to one year,
or with fine, or with both.

MEMORIAL FOR DEFENDANT

Cruelty Section 498A in The Indian Penal Code

498A. Husband or relative of husband of a woman subjecting her to cruelty.—

Whoever, being the husband or the relative of the husband of a woman, subjects such
woman to cruelty shall be punished with imprisonment for a term which may extend to
three years and shall also be liable to fine. Explanation.—For the purpose of this section,
“cruelty” means—
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit
suicide or to cause grave injury or danger to life, limb or health (whether mental or
physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her
or any person related to her to meet any unlawful demand for any property or
valuable security or is on account of failure by her or any person related to her to
meet such demand.[the IPC, Ratanlal and Dhirajlal, 30th edition 2008,pg. 917]

Divorce : according to HMA, 1955

Divorce, it’s the separation of both of the parties in the marriage. In the decent times the rate
of divorce has increased largely due to various reason. So, as per the HMA,1955 the ground
on which the parties to the marriage can file a divorce petition in the court if law are
discussed. This article deals with the various grounds under which a petition for divorce can
be filed under the hindu marriage act.

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—

[1] has, after the solemnization of the marriage, had voluntary sexual intercourse with any
person other than his or her spouse; or

(3) has, after the solemnization of the marriage, treated the petitioner with cruelty; or

(4) has deserted the petitioner for a continuous period of not less than two years immediately
preceding the presentation of the petition; or

[5] has ceased to be a Hindu by conversion to another religion; or

[6] 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 responde

MEMORIAL FOR DEFENDANT

 ARGUMENTS ADVANCED

1. Whether Amar was actually subjected to the harassment

and cruelty as a result of which he has filed the divorce
petition under section 13 of HMA?

Indian Penal Code (IPC) S. 354A. Sexual harassment and punishment for sexual
harassment.
[i][354-A. Sexual harassment and punishment for sexual harassment.—(1) A man
committing any of the following acts—
(i) physical contact and advances involving unwelcome and explicit sexual overtures; or
(ii) a demand or request for sexual favours; or
(iii) showing pornography against the will of a woman; or
(iv) making sexually coloured remarks,
shall be guilty of the offence of sexual harassment.
(2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-
section (1) shall be punished with rigorous imprisonment for a term which may extend to three
years, or with fine, or with both.
(3) Any man who commits the offence specified in clause (iv) of sub-section (1) shall be
punished with imprisonment of either description for a term which may extend to one year, or
with fine, or with both.]

More details about this Section

Cognizable or not? Cognizable

Whether Bailable? Bailable

Compoundable or not? Not compoundable

Triable by whom? Any Magistrate

MEMORIAL FOR DEFENDANT

Section 509: Word, gesture or act intended to insult the modesty of a woman.—
Whoever, intending to insult the modesty of any woman, utters any word, makes any sound
or gesture, or exhibits any object, intending that such word or sound shall be heard, or that
such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such
woman, shall be punished with simple imprisonment for a term which may extend to one
year, or with fine, or with both.

On Behalf Of Workman It Was ... vs State Of Maharastra, Air 2005 Sc ... on 13 March, 2009
reference of some complaints of a female employee alleging sexual harassment of hers by the
workman, but copies of those ... legal action for recovery, the complainant
levelled false allegations of sexual harassment at the work place against the workman.
Despite

Cs No: 83/09 vs Union Of India on 27 July, 2010

this backdrop, as per plaintiff, this lady started alleging sexual harassment. She managed to
get two resolutions passed against ... contd/... 5 Minister of Railways. The Lady
leveled false sexual harassment charges. This led to suspension of the plaintiff

2. Whether he is entitled for the relief on the ground of cruelty

or not?

cruelty sec 498A of IPC

A violation of this section is done by women by creating frivolously false allegations against
Amar. This section’s abuse is increasing chop-chop and therefore the ladies usually
apprehend her husband.

Section 498-A was introduced in the year 1983 to protect married women from being
subjected to cruelty by the husband or his relatives. A punishment extending to 3 years
and fine has been prescribed. The expression “cruelty” has been defined in wide terms so
as to include inflicting physical or mental harm to the body or health of the woman and
indulging in acts of harassment with a view to coerce her or her relations to meet any
unlawful demand for any property or valuable security. Harassment for dowry falls
within the sweep of latter limb of the section. Creating a situation driving the woman to
commit suicide is also one of the ingredients of “cruelty”.

Penal Code, 1860

Section 498-A: Husband or relative of husband of a woman subjecting her to cruelty
— Whoever, being the husband or the relative of the husband of a woman, subjects such
woman to cruelty shall be punished with imprisonment for a term which may extend to
three years and shall also be liable to fine.
Explanation. — For the purposes of this section, “cruelty” means—

MEMORIAL FOR DEFENDANT

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit
suicide or to cause grave injury or danger to life, limb or health (whether mental or
physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or
any person related to her to meet any unlawful demand for any property or valuable
security or is on account of failure by her or any person related to her to meet such
demand.

Cruelty can either be mental or physical. It is difficult to straitjacket the term cruelty by
means of a definition because cruelty is a relative term. What constitutes cruelty for one
person may not constitute cruelty for another person, G.V. Siddaramesh v. State of
Karnataka, (2010) 3 SCC 152.

In the last 20 years of criminal law reform a common argument made against laws relating to
violence against women in India has been that women misuse these laws. The police, civil
society, politicians and even judges of the High Courts and Supreme Court have offered these
arguments of the "misuse' of laws vehemently. The allegation of misuse is made particularly
against Sec 498A of the IPC and against the offence of dowry death in Sec 304B. One such
view was expressed by former Justice K T Thomas in his article titled 'Women and the Law',
which appeared in The Hindu.21 The 2003 Malimath Committee report on reforms in the
criminal justice system also notes, significantly, that there is a "general complaint" that Sec
498A of the IPC is subject to gross misuse; it uses this as justification to suggest an
amendment to the provision, but provides no data to indicate how frequently the section is
being misused. It is important therefore that such "arguments" are responded to, so as to put
forth a clearer picture of the present factual status of the effect of several criminal laws
enacted to protect women.
Domestic violence and abuse by spouses and family members are complex behaviours and
the social organisation of courts, the police and legal cultures systematically tend to devalue
domestic violence cases. Sec 498A was introduced in the IPC in 1983 and the reforms of the
past 20 years have not been adequately evaluated at all by the government with respect to
their deterrence goals, despite the institutionalization of law and policy to criminalise
domestic violence. A program of research and development is urgently required to advance
the current state of knowledge on the effects of legal sanctions on domestic violence. The
narrow or perhaps almost negligible study done by law enforcement agencies about the
deterrent effects of legal sanctions for domestic violence stands in high contrast with the
extensive efforts of activists, victim advocates and criminal justice practitioners in mobilising
law and shaping policy to stop domestic violence. It is important to do these studies to correct
the general misconceptions that women are misusing the law by filing false cases against
their husbands and in-laws in order to harass them and get them convicted. The perspective of
the state and its agencies needs to change from that of protecting the husbands and in-laws
against potential "misuse" of the laws of domestic violence to that of implementing their real
purpose – to recognise that such violence is a crime and protect women who have the courage
to file complaints against their abusers.

A violation of this section, its goals and its aims is on the rise with the woman frivolously
making false allegations against their husbands with the purpose of getting rid of them or
simply hurting the family.

MEMORIAL FOR DEFENDANT

The abuse of this section is rapidly increasing and the women often well- educated know that
this section is both cognizable and non-bailable and impromptu works on the complaint of the
woman and placing the man behind bars.
Like in the case of Savitri Devi v Ramesh Chand & Ors[18], the court held clearly that there
was a misuse and exploitation of the provisions to such an extent that it was hitting at the
foundation of marriage itself and proved to be not so good for health of society at large. The
court believed that authorities and lawmakers had to review the situation and legal provisions
to prevent such from taking place.
This section was made keeping in mind protection of the married woman from unscrupulous
husbands but is clearly misused by few women and again this is strictly condemned in Saritha
v R. Ramachandra where the court did notice that the reverse trend and asked the law
Commission and Parliament to make the offence a non-cognizable and bailable one. It is been
a duty of the court to condemn wrongdoings and protect the victim but what happens when the
victim turns into the abuser? What remedy does the husband have here?
On this ground, the woman gets to divorce her husband and re-marry or even gain money in
the form of compensation. Many women rights’ groups go against the idea of making the
offence a non-cognizable and bailable one thinking that this gives the accused a chance to
escape conviction. But what this would do is that it would give a fair chance to the man and
above all help meet the ends of justice. Justice must protect the weaker and ensure that the
wronged is given a chance to claim back his/her due.
When women accuse their husbands under S.498A IPC by making the offence non-bailable
and cognizable , if the man is innocent he does not get a chance quickly to get justice and
‘justice delayed is justice denied’. Therefore, the lawmakers must suggest some way of making
this section non-biased to any individual such that the guilty is punished and the person
wronged is given justice.
The position of the women in India is still bad. They still need rights to alleviate themselves in
society but many a times fail to notice others’ rights as long as their rights are ensured. The
educated woman of today must agree with the mantra of equality and demand the same but the
trend is slowly getting reversed. Women are taking due advantage of the fact that they are
referred to as the ‘weaker sex’ and on the foundation of rights ensured to them are violating
others’ rights.
Pranab Kumar Chakraborty vs Kumkum Chakraborty on 5 July, 2005
allegations made against her husband were false. The making of false allegation against the spouse amounts to
cruelty ... allegations made in the application under Section 498A were false and the case was filed falsely; but,
however, she admitted
Calcutta High Court

MEMORIAL FOR DEFENDANT

 PRAYER

Wherefore in the light of facts presented, issues raised, arguments advanced and
authorities cited, the Counsels on behalf of the Defendant humbly pray before this
Hon’bleCourt that it may be pleased to adjudge and declare that:

1. Appeal should be dismissed by high court.

2. Compensation should be granted to the respondent.

Or pass any other order that the court may deem fit in the light of equity, justice
and good conscience and for this Act of kindness of Your Lordships the Defendant
shall as duty bound ever pray.

Sd/

Counsels for the Defendant

MEMORIAL FOR DEFENDANT