S.

S MANIYAR LAW COLLEGE, JALGAON

MOOTOF
TABLE COURT CASE
CONTENTS

TABLE OF CONTENTS…………………………………………………………………… 1

LIST OF ABBREVIATIONS………………………………………………………………. 2
BEFORE
INDEX OF AUTHORITIES………………………………………………………………… 3
THE HON’BLE HIGH COURT
STATEMENT OF JURISDICTION……………………………………………………….. 4

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

APPEAL NO.000/2022
ISSUES RAISED…………………………………………………………………………… 7

In The Matter of:

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

SAVITA………………………………………………………………………………..APPELLANT
ARGUMENTS ADVANCED……………………………………………………………… 9

VERSUS
PRAYER…………………………………………………………………………………… 13

ANIL………………………………………………………………………………….RESPONDENT

APPEAL AGAINST DECREE PASSED IN CASE DATED 30-11-2019

Name: Student Adv. Jayesh Dayama

Class Roll No.

MEMORIAL SUBMISSION ON BEHALF OF THE APPELLANT

MEMORIAL SUBMISSION ON BEHALF OF APPELLANT

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 LIST OF ABBREVIATIONS

& And

¶ Paragraph

AIR All India Reporter

Cal Calcutta

DMC Divorce and Matrimonial Cases

Ed. Edition

Govt. Government

Hon’ble Honourable

HLR Himachal Law Reporter

i.e. That is

IPC Indian Penal Code

LJ Law Journal

SC Supreme Court

SCC Supreme Court Cases

V./VS. Versus

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INDEX OF AUTHORITIES

STATUTES

● The Hindu Marriage Act, 1955

● Criminal Procedure Code 1973
● Indian Penal Code, 1860
● Dowry Prohibition Act,1961
● Code of Civil procedure

CASES

1. V. Bhagat v. D.Bhagat AIR 1994 SC 710

2. N.G Dastane v. S Dastane AIR 1975 SC 1534
3. Yashodabai v. Krishnamurt
4. Deepav v. Prithi Pal Singh Bedi
5. Rohini Kumar v. Narender Singh AIR 1972 SC 459

BOOKS REFERRED

● Sukhdev Singh Hindu Law of Marriage and Divorce (2nd edition of 2018).
● Professional’s Divorce Laws.
● Lawmann’s Commentary on Hindu Marriage Act, 1955.

WEBSITES

● (indiankanoon.org)

● (Manupatrafast.com)

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 ● (ipleaders.in)

MEMORIAL SUBMISSION ON BEHALF OF APPELLANT

STATEMENT OF JURISDICTION

The Hon’ble High Court has Jurisdiction to hear the instant matter under section 28 of the
Hindu Marriage Act, 1955.

Section 28 in The Hindu Marriage Act, 1955

Appeals from decrees and orders.

(1) All decrees made by the court in any proceeding under this Act shall, subject to the
provisions of sub-section (3), be appealable as decrees of the court made in the exercise
of its original civil jurisdiction, and every such appeal shall lie to the court to which
appeals ordinarily lie from the decisions of the court given in exercise of its original civil
jurisdiction.

(2) Orders made by the court in any proceeding under this Act under section 25 or
section 26 shall, subject to the provisions of sub-section (3), be appealable if they are
not interim orders, and every such appeal shall lie to the court to which appeals
ordinarily lie from the decisions of the court given in exercise of its original civil
jurisdiction.

Section 96 of code of civil procedure

(1) Save where otherwise expressly provided in the body of this Code or by any
other law for the time being in force, an appeal shall lie from every decree passed
by any Court exercising original jurisdiction to the Court authorized to hear
appeals from the decisions of such Court.

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STATEMENT OF FACTS

1. Anil married Savita on 20.2.2011 as per Hindu rites without any dowry. Both the
parties are governed by Hindu Marriage Act.
2. After marriage, she discharged all her matrimonial duties with devotion but after the
solemnization of marriage, Anil and his family members used to harass her by
demanding a car and Rs.1,00,000/- as dowry. She used to do all her household chores
and beared all the acts of humiliation of her in-laws and husband just to save the
reputation of her family.
3. A child named Alok was born out of their wedlock but he was kept away from Anil.
He was never allowed to mix up with his son by Savita.
4. The wife filed a frivolous complaint under the Dowry Prohibition Act against Anil
and his family members wherein Anil had to go to Jail.
5. On 15.5.2015, She brought Rs.50,000/- from her parents but for the greed and
continuous demand of dowry by her in-laws she was beaten and thrown out of the
matrimonial house. She was then constrained to get herself medically examined and
filed a FIR.
6. On 16.7.2015, she went willfully along with her husband even though the respondent
and his family members were adamant about the dowry demand.
7. On 20.8.2015, at about 4:00 pm she was beaten up by her husband and his family
members by fists, kicks, lathi and danda. The brother of the appellant got her
medically examined and filed NCR no.66/15. The proceeding regarding the same is
still pending. Savita never humiliated her husband rather he was causing her physical
and mental cruelty.
8. On 30.11.2019, the Additional Principal Judge passed the degree of dissolution of
marriage. One time alimony of Rs.2,00,000/- has also been decreed to the wife.

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 9. On 07.01.2020, the respondent husband has been restrained from re-marrying.

PRESENT PETITION: Anil filed a case for divorce on the grounds of cruelty in the
Family Court at Bina.

MEMORIAL SUBMISSION ON BEHALF OF APPELLANT

ISSUES RAISED

WHETHER THE PETITION FILED IS MAINTAINABLE ON GROUND OF IS

MAINTAINABLE ON GROUND OF IRRETRIEVABLE BREAKDOWN OF
MARRIAGE?

II

WHETHER THE APPELLANT-WIFE (SAVITA) IS GUILTY OF CRUEL BEHAVIOUR

WITH PETITIONER (ANIL)?

III

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SUMMARY OF ARGUMENTS

1. WHETHER THE PETITION FILED IS MAINTAINABLE ON GROUND OF

IRRETRIEVABLE BREAKDOWN OF MARRIAGE?

The Family Court has granted decree of divorce on the ground of irretrievable breakdown
of marriage whereas there is no such ground for divorce in Section 13 of the Hindu
Marriage Act, 1955 nor this ground can be taken in the petition by the respondent. It is
humbly submitted before the Hon’ble High Court that the present petition before the
bench is not maintainable on grounds of desertion and cruelty in the court of law.

2. WHETHER THE APPELLANT-WIFE (SAVITA) IS GUILTY OF CRUEL

BEHAVIOUR WITH PETITIONER (ANIL)?

It is humbly submitted before the Hon’ble Court that in the instant case there was no
cruelty on the part of appellant. The conduct complained of cruelty should be grave and
weighty i.e something more than ordinary wear and tear of married life. Here the acts of
the appellant alleged by the petitioner were not of such degree of cruelty that petitioner’s
life became miserable and hence marital tie snapped. Additionally, those acts were just
ordinary wear and tear of the marriage and don’t amount to Mental cruelty.

3. WHETHER THE APPELLANT WIFE HAS DESERTED THE PETITIONER

HUSBAND?

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 It is humbly submitted before the Hon’ble court that the appellant has deserted the
petitioner for more than 2 years and divorce petition has been filed after completion of
relevant 2 years of desertion as mentioned in section 13 (1) (ib) of the Hindu Marriage
Act, 1955. Also there is presence of intention to bring cohabitation permanently to an end
on part of respondent which is the essential condition to prove desertion.

MEMORIAL SUBMISSION ON BEHALF OF APPELLANT

ARGUMENTS ADVANCED

1. WHETHER THE PETITION FILED IS MAINTAINABLE ON GROUND OF

IRRETRIEVABLE BREAKDOWN OF MARRIAGE?

The Family Court has granted decree of divorce on the ground of

irretrievable breakdown of marriage whereas there is no such ground for
divorce in Section 13 of the Hindu Marriage Act, 1955 nor this ground can be
taken in the petition by the respondent. The respondent in his petition had
prayed for divorce on the grounds of cruelty and desertion but the Family Court
has not given any finding on them and has illegally opined that the filing of
criminal cases against the husband-respondent itself proved cruelty on the part
of the appellant-wife. This is not the correct approach.

The respondent-husband has completely failed to prove the allegations in

the divorce petition by leading evidence before the Family Court. The appeal,
therefore, deserves to be allowed.

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2. WHETHER THE APPELLANT-WIFE (SAVITA) IS GUILTY OF CRUEL

BEHAVIOUR WITH PETITIONER (ANIL)?

It is humbly submitted before the Hon’ble Court that partied to a marriage tying nuptial knot
are supposed to bring about the union of souls. It creates new relationship of love, affection,
care and concern between the husband and wife.

Section 13 of The Hindu Marriage Act, 1955 defines the grounds for divorce and Section
13(1) (ia) specifically states that:

(1) Any marriage solemnized, whether before or after the commencement of this Act,
may, on a petition by either the husband or the wife, be dissolved by a decree of
divorce on the ground that the other party-
(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty;

The term ‘Cruelty’ constitutes both acts of Physical and Mental Cruelty. Even though act
does not define mental cruelty as such, the Supreme Court has in many verdicts defined and
established the grounds for Mental Cruelty.

It is humbly submitted before the Hon’ble Court that in V. Bhagat v. D. Bhagat 1Supreme
Court held that a conduct that causes such a mental pain and suffering that makes it
impossible to live with that person is mental cruelty. Mental Cruelty such that it cannot
reasonably be expected to live together. And in instant case the respondent has not suffered
any such mental pain which makes him impossible to live with her wife in the judgment that
the filing of criminal cases against the husband and refusal to live with the husband amounted

1 V. Bhagat v. D.Bhagat AIR 1994 SC 710

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to cruelty of wife towards her husband become baseless. Further, when the wife and child are
forced to live separately from the husband/father, they have a right to demand maintenance
from the husband/ father and if the wife is being harassed for dowry or otherwise by the
husband or her in-laws, she has a right to claim protection of law. Thus, mere filing of the
proceedings under Section 125 Cr.P.C. and Section 498A, 323, 504, 506 IPC and ¾ Dowry
Prohibition Act cannot be treated as a ground of cruelty of the wife against her husband.

MEMORIAL SUBMISSION ON BEHALF OF APPELLANT

3. THAT APPELLANT WIFE HAS DESERTED THE RESPONDENT

It is most humbly submitted before the Hon’ble Court that under Section 13(1) (ib) appellant
wife has deserted respondent husband.

Section 13 of The Hindu Marriage Act, 1955 defines the grounds for divorce and Section
13(1) (ib) specifically states that:

(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-

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

It is most humbly submitted before the Hon’ble court [A] that the statutory period of 2 years
was completed.

A. THAT THE STATUTORY PERIOD OF TWO YEARS OF DESERTION WAS

COMPLETED

It is most humbly submitted before the Hon’ble Court that under the section 13 (1) (ib) to
entitle the petitioner to decree of dissolution of marriage on the ground of desertion, the
statutory period of two years must be there. This period of two years must have lapsed prior
to the presentation of the petition i.e. the date on which the petition is filed. Otherwise
desertion can’t be established. In the instant case appellant left the home in May, 2015 and
returns back to house after two months later. And Divorce petition has been filed before
completion of required relevant two year’s period of desertion. Hence the statutory period of
two years of desertion was established.

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PRAYER

In the light of the issues raised, arguments advanced, authorities cited and the pleadings
made, it is most humbly prayed that, the Hon'ble High Court may be pleased to:

1. The petition shall not be maintainable on the ground of cruelty.

2.

AND

That the court may issue any other order as the court deems fit in the interest of
justice, equity and good conscience.

For this act of kindness, The appellant shall be duty bound forever.

All of which is most humbly and respectfully submitted.

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