Memorial - TC 10 - Petitioner (6011)

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2 nd SURANA & SURANA AND ARMY INSTITUTE OF LAW NATIONAL FAMILY LAW MOOT
COURT COMPETITION 2020-21
TC- 10
2nd SURANA & SURANA AND ARMY INSTITUTE OF LAW

NATIONAL FAMILY LAW MOOT COURT COMPETITION
2020-21
IN THE HON’BLE FAMILY COURT OF DELHI

(ORIGINAL JURISDICTION)
IN THE MATTER OF
MAT. APP. (F.C) ______ of 2021
Mr. PETITIONER
...…PETITIONER
V
Mrs. RESPONDENT
…….RESPONDENT
MEMORANDUM ON BEHALF OF THE PETITIONER

COUNSEL FOR THE PETITIONER
COURT COMPETITION 2020-21 TEAM CODE: TC-10
Page 2 of 30
TABLE OF CONTENTS
P
CONTENTS
LIST OF ABBREVIATIONS 3
INDEX OF AUTHORITIES
I. CASE LAWS 4
II. FOREIGN CASE LAWS 7
III. LEGISLATIONS 7
IV. INTERNATIONAL COVENANTS 8
V. JOURNALS 8
VI. BOOKS 8
VII. WEBSITES 9
STATEMENT OF JURISDICTION 10
STATEMENT OF FACTS 11
STATEMENT OF ISSUES 12
SUMMARY OF ARGUMENTS 13
ARGUMENTS ADVANCED
I. WHETHER THE DIVORCE APPLICATION FILED BY 14
PETITIONER IS MAINTAINABLE?
II. WHETHER RESPONDENT’S CASE OF RESTITUTION 21
OF CONJUGAL RIGHTS IS JUSTIFIED IN LAW?
III. WHETHER RESPONDENT IS ENTITLED TO GET THE 24
CUSTODY OF THEIR DAUGHTER?
PRAYER 30
MEMORANDUM ON BEHALF OF PETITIONER

Page 3 of 30
LIST OF ABBREVIATIONS
ABBREVIATION EXPANSION
& And
§ Section
¶ Paragraph
AIR All India reporter
All Allahabad
Anr. Another
AP Andhra Pradesh
Bom Bombay
CMA Civil Miscellaneous Appeal
Del Delhi
DLT Delhi Law Times
HC High Court
Hon’ble Honourable
No. Number
Ors. Others
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporters
v. Versus
HMA Hindu Marriage Act, 1955
HMGA Hindu Minority and Guardianship Act, 1956

Page 4 of 30
INDEX OF AUTHORITIES
I. CASE LAW
S.No CASE TITLE CITATION P.

1. A. Jayachandra v. Aneel Kaur (2005) 2 SCC 22 Passim
2. A.R.Poddar v. Anushree Poddar (1991) HLR 611 Cal 27 Passim
3. Anjana Kishore v. Puneet Kishore (2002) 10 SCC 194 Passim
4. Baby Manji Yamada v. Union of India, (2008) 13 SCC 518 Passim
5. Chetan Dass v. Kamla Devi 2001 4 SCC 250 Passim
6. Dastane v. Dastane, AIR 1975 SC 1534 Passim
7. Dhanwanti Joshi v. Madhav Und (1998) 1 SCC 112 Passim
8. Dr. (Mrs.) Veena Kapoor v. Shri Varinder AIR 1982 SC 792 Passim
Kumar
9. Durga Prasad Tripathy v. Arundathi (2005) 7 SCC 353 Passim
Tripathy
10. Elizabeth Dinshaw v. Arvind M.Dinshaw 1987 (1) SC 42 Passim
11. G.V.N.Kameswara Rao v. G. Jabili (2002) 2 SCC 296 Passim
12. Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42 Passim
13. Gananath Pattnaik v. State of Orissa (2002) 2 SCC 619 Passim
14. Gurdip Kaur v. Pritam Singh 1988, ML 526, P&H 72 Passim
15. Harvender Kaur v Harmander Singh AIR 1984 Del 66 Passim
16. Itwari v. Asghrai AIR 1960 All 684 Passim
17. Jagdish lal v. Smt Shyama AIR 1966 All 150 Passim
18. Jai Dayal v. Shakunthala Devi AIR 2004 Del 39 Passim

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19. Jeet Singh v. State of U.P (1993) 1 SCC 325 Passim
20. Joydeep Majumdar v. Bharati Jaiswal 2021 SCC OnLine SC Passim
Majumdar; 146
21. K Ponnarasi v. P. Alagu, C.M.A.(MD)No.411 of Passim
2015
22. K. Srinivas Rao v. D. A. Deepa (2013) 5 SCC 226 Passim
23. K.S. Puttuswamy v. Union of India AIR 2017 SC 4161 Passim
24. Lahari Sakhamuri v. Sobhan Kodali (2019) 7 SCC 311 Passim
25. Mausami Moitra Ganguli v. Jayant Ganguli (2008) 7 SCC 673 Passim
26. Maya Devi v Kailash Chander (2014) RCR (Civil) 968 Passim
27. Mrs. Anil Singh v. Dr. Narendra Singh MANU/DE/2130/2014 Passim
28. Mrs.Shilpa Aggarwal v. Mr.Aviral Mittal & (2010) 1 SCC 591 Passim
Anr
29. Narayan Sahu v. Sushama Sahu 1992 CriLJ 2912 Passim
30. Narendra v. K. Meena; (2016) 9 SCC 455 Passim
31. Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558 Passim
32. Navtej Singh Johar v. Union of India AIR 2018 SC 4321 Passim
33. Panni Lal v. Rajinder Singh, (1993) 4 SCC 38 Passim
34. R. Srinivas Kumar v. R. Shametha AIR 2019 SC 4919 Passim
35. R.V. Srinath Prasad v. Nandamuri AIR 2001 SC 1056 Passim
Jayakrishna & Ors
36. Raj Talreja v. Kavita Talreja (2017) 14 SCC 194 Passim
37. Rishikesh Sharma v. Saroj Sharma (2006) 12 SCALE 282 Passim
38. Rohini Kumari v. Narendra Singh (1972) 1 SCC 1 Passim

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39. Rosy Jacob v. Jacob A Chakarmakka (1973) 1 SCC 840 Passim
40. Ruchi Majoo v. Sanjeev Majoo (2011) 6 SCC 47 Passim
41. Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511 Passim
42. Sanghamitra Ghosh v. Kajal Kumar Ghosh (2007) 2 SCC 220 Passim
43. Saroj Rani v. Sudarshan Kumar Chadha (1984) 4 SCC 90 Passim
44. Savitri Pandey v. Prem Chandra Pandey (2002) 2 SCC 73 Passim
45. Shafin Jahan v. Asokan AIR 2018 SC 1933 Passim
46. Shakila Banu v. Gulam Mustafa AIR 1971 Bom 166 Passim
47. Shanti Nigam v. Ramesh Chandra AIR 1971 ALL 567 Passim
48. Shyamrao Maroti Korwate v. Deepak (2010) 10 SCC 314 Passim
Kisanrao Tekam
49. Sirajmohmedkhan Janmohamadkhan v. (1981) 4 SCC 250 Passim
Haizunnisa Yasinkhan & Anr
50. Smriti Madan Kansagra v. Perry Kansagra (2019) 20 SCC 753 Passim
51. Smt. Respondent Kapoor v. Rajiv Baijal (2009) 7 SCC 322 Passim
52. Smt. Rachna Jain v. Shri Neeraj Jain 120 (2005) DLT 365 Passim
53. Sukhendu Das v. Rita Mukherjee (2017) 9 SCC 632 Passim
54. Sushila Bhai v. Prem Narayan AIR 1986 MP 225 Passim
55. Swati Verma v. Rajan Verma and Ors (2004) 1 SCC 123 Passim
56. T. Sareetha v. T. Venkata Subbaiah1 AIR 1983 AP 356 Passim
Choudhry
57. Tapan Kumar Chakraborty v. Smt. Jyotsana MANU/WB/0018/1997 Passim
Chakroborty
58. Rajani v. Subramonian; AIR 1990 Ker. 1 Passim

Page 7 of 30
59. V. Ravichandran v. Union of India and Ors (2010) 1 SCC 174 Passim
60. V.Bhagat v. D.Bhagat 1994 AIR SC 710 Passim
61. Vijay Kumar Ramachandra Bhate v. Neela AIR 2003 SC 2462 Passim
Vijay Kumar Bhate
62. Vinitha Saxena v. Pankaj Pandit (2006) 3 SCC 778 Passim
63. Vivek Singh v. Romani Singh, (2017) 3 SCC 231 Passim
64. Y. Narasimha Rao and others v. Y. Venkata 1991 SCC (3) 451 Passim
Lakshmi and others
II. FOREIGN CASES
P.
S.No. CASE TITLE CASE CITATION
1 Lodder v. Lodder (1921 New Zealand Law Reports 786) Passim
2 Russel v Russel (1924) AC 687 Passim
4 Waters v. Waters (1956) 1 All. E.R. 432 Passim
III. LEGISLATIONS
P.
S.No TITILE OF LEGISLATION
1 CONSTITUTION OF INDIA, 1950 Passim
2 FAMILY COURTS ACT, 1984 Passim
3 GUARDIANS AND WARDS ACT, 1890 Passim
4 HINDU ADOPTIONS AND MAINTENANCE ACT, 1956 Passim
5 HINDU MARRIAGE ACT, 1955 Passim
6 HINDU MINORITY AND GUARDIANSHIP ACT, 1956 Passim

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7 INDIAN CONTRACTS, 1870 Passim
8 THE MARRIAGE LAWS (AMENDMENT) ACT, 1976 Passim
IV. INTERNATIONAL COVENANTS
PP.
S. No. COVENANT
1 UN CONVENTION ON RIGHTS OF CHILD Passim
2 UNIVERSAL DECLARATION ON HUMAN RIGHTS Passim
V. JOURNALS
PP.
S.No. TITLE OF JOURNAL
1 ALL INDIA REPORTER (AIR) Passim
2 DELHI LAW TIMES (DLT) Passim
3 SUPREME COURT CASES (SCC) Passim
4 SUPREME COURT REPORTER (SCR) Passim
VI. BOOKS
S.No TITLE OF THE BOOK P.
AUTHOR TITLE EDITION
1. Dr. Paras Diwan Law of Marriage and Divorce 7th Ed Passim
2. B.M. Gandhi Family Law 1 5th Ed Passim

Page 9 of 30
VII. WEBSITES
S.No TITLE P.
1. www.scconline.com Passim
2. www.livelaw.in Passim

Page 10 of 30
STATEMENT OF JURISDICTION
THE PETITIONERS HUMBLY SUBMIT TO THE JURISDICTION OF THE
HONOURABLE FAMILY COURT OF DELHI AS MANDATED BY SECTION 19 OF THE
HINDU MARRIAGE ACT, 1955, WHICH READS AS UNDER:
Section 19. Court to which petition shall be presented. —Every petition under this Act shall be
presented to the district court within the local limits of whose ordinary original civil
jurisdiction:
(i) The marriage was solemnised, or
(ii) The respondent, at the time of the presentation of the petition, resides, or
(iii) The parties to the marriage last resided together, or
[(iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the
petition, or]
(iv) The petitioner is residing at the time of the presentation of the petition, in a case where the
respondent is, at that time, residing outside the territories to which this Act extends, or has not
been heard of as being alive for a period of seven years or more by those persons who would
naturally have heard of him if he were alive.
TH1IS FORUM HAS BEEN APPROACHED BY THE PETITIONERS AS THE
MARRIAGE WAS SOLEMNISED IN NEW DELHI IN 2000. THE AUTHORITY OF THIS
COURT TO EXERCISE JURISDICTION LIKE ANY OTHER DISTRICT COURT MAY
ALSO BE FOUND IN SECTION 7 OF THE FAMILY COURTS ACT, 1984.
THE SAID SECTION 7 (a) OF THE FAMILY COURTS ACT, 1984, UNAMBIGOUSLY
LAYS DOWN THAT THIS COURT IS THE MOST APPROPRIATE FORUM TO HEAR
MATTERS OF THIS NATURE AND GRANT THE RELIEF, AS PRAYED BY THE
PETITIONER.

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STATEMENT OF FACTS
[¶ 1.] Sandeep and Anjali were married in 2000 and solemnized at New Delhi, as per Hindu
rites and rituals under Hindu Marriage Act 1955. Anjali had been juggling both household
chores and her studies, after marriage. Meanwhile at work Sandeep gets a very lucrative job
offer from the Silicon Valley in USA which he believes would be a very crucial career growth
for him. Anjali is compelled to move to USA, with him. Anjali decided to continue her studies
in USA. This was funded by her mother. Soon she lands a job with a hospital in the city. With
her life getting a little settled she had developed a keen realisation that it is the appropriate time
for her to have a child. Sandeep believes it is too soon for them and this leads to frequent
quarrels.
[¶ 2.] Eventually, over the next couple of years, they get settled financially and try to conceive
a baby, but in vain. They had decided to approach surrogate mothers in India, to help them with
the process. They soon find Priya, a suitable candidate and enter into an oral agreement with
her.
[¶ 3.] In 2014, a baby girl was born to the surrogate mother in New Delhi and both Sandeep
and Anjali returned to India and were present at the hospital at the time of the birth. Anjali
leaves back for USA as she is required to join back at work .Whereas Sandeep stayed back in
New Delhi with Priya, as he is allowed to work from home. Soon Sandeep’s emotional
dependence on Anjali starts fading and he starts ignoring her phone calls. Anjali senses the
change in his behaviour and is able to deduce that something is wrong .She decides to visit
India and much to her shock, she had found that Priya had moved into Sandeep’s house. This
leads to quarrels between the couple and has hence resulted in the instant petition.

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STATEMENT OF ISSUES
ISSUE I
WHETHER THE DIVORCE APPLICATION FILED BY PETITIONER IS
MAINTAINABLE?
ISSUE II
WHETHER RESPONDENT’S CASE OF RESTITUTION OF CONJUGAL RIGHTS IS
JUSTIFIED IN LAW?
ISSUE III
WHETHER RESPONDENT IS ENTITLED TO GET THE CUSTODY OF THEIR
DAUGHTER?

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SUMMARY OF ARGUMENTS
[I] WHETHER THE DIVORCE APPLICATION FILED BY PETITIONER IS
MAINTAINABLE?
Yes, the divorce petition filed by Petitioner is maintainable. The Delhi District Court is
the appropriate forum to file the divorce, as that is the place where the couple's marriage
was solemnized. Furthermore, the Petitioner was subject to mental cruelty caused by
the Respondent due to an alleged false accusation of an extramarital affair. This,
coupled with various other quarrels had led to irretrievable breakdown and cannot be
brought back to normal. Thus, the divorce is sought and is very much maintainable.
[II] WHETHER RESPONDENT’S CASE OF RESTITUTION OF CONJUGAL
RIGHTS, IS JUSTIFIED IN LAW?
No. The remedy of Restitution of Conjugal rights is a relic of the past, which assumes
no relevance in the modern society. Implementing such archaic practices shall cause
grave violation of fundamental rights to the Petitioner and thus it is prayed that it shall
not be entertained.
[III] WHETHER RESPONDENT IS ENTITLED TO GET THE CUSTODY OF
THEIR DAUGHTER?
No, as per the HMGA, the father is the natural guardian of a minor son and unmarried
daughter, therefore the custody of the child belongs to petitioner. Moreover, while
considering of the child, the welfare and best interest should be given paramount
importance and not the just the love and affection or the financial stability or the legal
rights of the natural guardians. Thus, it submitted that the child has been living with the
petitioner she was born hence the custody belongs to him.

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ARGUMENTS ADVANCED
[I] WHETHER THE DIVORCE APPLICATION FILED BY PETITIONER IS
MAINTAINABLE?
It is respectfully submitted before this Hon’ble court that divorce is among the most traumatic
misfortunes for any couple. The entire process of divorce that starts from coping up with
emotional ups and downs to contesting for the long awaited divorce decree for several months
is definitely a tough affair to get through. The Petitioner, being well aware of the above, has
approached this court seeking relief under two main grounds [1.1] and [1.2].
[1.1] Whether vague accusations made by Respondent has caused mental cruelty to
Petitioner?
[¶ 1]Mental cruelty is the conduct of one spouse which causes mental suffering or fear to the
matrimonial life of the other1. Mental cruelty in § 13(1) (i-a) can broadly be defined as that
conduct which inflicts upon the other party such mental pain and suffering as it would make it
impossible for that party to live with the other2. However, cruelty can never be defined with
exactitude3.
[¶ 2] The Court in the case of Dastane vs. Dastane4, examined the matrimonial ground of
cruelty as it was stated in the old Section 10(1)(b) and observed that any inquiry covered
by that provision had to be whether the conduct charged as cruelty is of such a character as
to cause in the mind of the petitioner a reasonable apprehension that it will be harmful to
1
Savitri Pandey vs. Prem Chandra Pandey, (2002) 2 SCC 73
2
V.Bhagat v. D.Bhagat, (1994) 1 SCC 337
3
Raj Talreja v. Kavita Talreja, (2017) 14 SCC 194
4 Dastane vs. Dastane, AIR 1975 SC 1534,

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live with the respondent. It was further observed that it was not necessary that the cruelty
must cause danger to life, limb or health.
[¶ 3]At this juncture, it is pertinent to note the observation made by the courts in the cases of
K. Srinivas Rao v. D. A. Deepa 5 and Dr. Sanotsh Shetty v. Mrs. Ameeta Santosh Shetty6,
whereby it was categorically pronounced that making unfounded indecent defamatory
allegations against the spouse or his/her relatives amounts to causing mental cruelty to the other
spouse. Further in the said Srinivas Rao 7 case, the court laid down that staying together under
the same roof is not a pre-condition for mental cruelty.
[¶ 4]One of the most important judgments that arises for our consideration in the said issue
is the case of Samar Ghosh v. Jaya Ghosh8 whereby the Supreme Court laid down certain
non-exhaustive instances that shall lead to Mental Cruelty. Few of the said instances that
shall be of prime importance to this Petitioner, is as follows:
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony
and suffering as would not make possible for the parties to live with each other could come
within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes
abundantly clear that situation is such that the wronged party cannot reasonably be asked
to put up with such conduct and continue to live with other party.
5
K. Srinivas Rao v. D. A. Deepa, (2013) 5 SCC 226
6
Dr. Sanotsh Shetty v. Mrs. Ameeta Santosh Shetty, Family Court Appeal No.113/2014, 18th March 2020
7
Supra note 6.
8
Samar Ghosh v. Jaya Ghosh 2007 4 SCC 511

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(iv)Mental cruelty is a state of mind. The feeling of deep anguish, disappointment,
frustration in one spouse caused by the conduct of other.
(v) A sustained course of abusive and humiliating treatment calculated to torture,
discommode or render miserable life of the spouse.
While dismissing an appeal seeking the quash of the judgment of the HC, which allowed
dissolution of marriage, the SC, observed that levelling disgusting accusations of unchastity
and indecent familiarity with a person outside wedlock and allegations of extra-marital
relationship is a grave assault on the character, honour, reputation, status as well as the health
of the spouse 9. Similar observations were made by the Apex Court in Narendra v. K. Meena 10
and Jai Dayal v. Shakunthala Devi11.
[¶ 5]The Court in Vinita Saxena v. Pankaj Pandit12, aptly observed: As to what constitutes the
required mental cruelty for the purposes of the said provision, will not depend upon the
numerical count of such incidents. The concept of cruelty and its effect varies from individua l
to individual13. Lord Merriman, in Waters v. Waters14 observed that intention to injure was not
necessary ingredient of cruelty.
9
Vijay Kumar Ramachandra Bhate vs Neela Vijay Kumar Bhate; MANU/SC/0316/2003
10
Narendra v. K. Meena, (2016) 9 SCC 455
11
Jai Dayal v. Shakunthala Devi, AIR 2004 Del 39
12
Vinita Saxena v. Pankaj Pandit; (2006) 3 SCC 778
13
Gananath Pattnaik v. State of Orissa; (2002) 2 SCC 619
14 Waters v. Waters (1956) 1 All. E.R. 432

Page 17 of 30
[¶ 6] It was rightly declared in Joydeep Majumdar v. Bharati Jaiswal Majumdar 15, that the
decree of tolerance of a party varies from case to case and the judges while deciding shall
consider every from background to education, that had caused the alleged mental cruelty. A
new type of cruelty emerges in every case due to the changing nature of human conduct 16.
[¶ 7] In the case of Sirajmohmedkhan Janmohamadkhan v. Haizunnisa Yasinkhan & Anr17,
this Court stated that the concept of legal cruelty changes according to the changes and
advancement of social concept and standards of living. In Rajani v. Subramonian18 it was
aptly observed that the concept of cruelty depends upon the type of life the parties are
accustomed to, their culture and human values, judged by standard of modern civilization
in the background of the cultural heritage and traditions of our society.
[¶ 8]This Court aptly observed in Chetan Dass v. Kamla Devi19 that matrimonial matters are
matters of delicate human and emotional relationship. It demands mutual trust, regard, respect,
love and affection with sufficient play for reasonable adjustments with the spouse. The
relationship has to conform to the social norms as well. The act of temporary desertion
immediately after the birth of the child and utter disregard to motherly obligations on the part
of the Respondent, is unacceptable. The Petitioner had developed an emotional relationship
with Priya, only in order to aid the growth of their daughter in a familial environment. He was
forced to take this step because the Respondent, was not bothered about anything except her
studies and career. Having been the party at fault, the Respondent is not entitled to quarrel with
15 Joydeep Majumdar v. Bharati Jaiswal Majumdar; 2021 SCC OnLine SC 146

16
Sheldon v. Sheldon, (1966) 2 All ER 257 (259)
17 Sirajmohmedkhan Janmohamadkhan v. Haizunnisa Yasinkhan & Anr; (1981) 4 SCC 250
18
Rajani v. Subramonian; AIR 1990 Ker. 1
19 Chetan Dass v. Kamla Devi reported in (2001) 4 SCC 250

Page 18 of 30
the Petitioner. This act of the Respondent has caused unimaginable mental agony to this
Petitoner and he needs no more of a reason to divorce the Defendant 20.
[1.2] Whether the marriage has irretrievably broken down due to the acts of the parties?
[¶ 9]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 and wife relationship with no hope of resumption of spousa l duties.
[¶ 10]In 1921, the first divorce on the ground of Irretrievable Breakdown of Marriage was
granted by the Court in New Zealand21. The Apex Court of India in Anjana Kishore v. Puneet
Kishore 22 and Swati Verma (Smt.) v. Rajan Verma and Ors 23, has taken a consistent view that
where it is found that the marriage between the parties has irretrievably broken down and has
been rendered a dead wood, the dissolution of such a marriage by a decree of divorce shall help
to put an end to the agony and bitterness. An indistinguishable view was taken in
G.V.N.Kameswara Rao v. G. Jabili24. According to Dr. A.R. Lakshmanan and Tarun Chatterjee
JJ of the SC, if after examining the facts and circumstances of the case it will not be possible
for the parties to live together, and if no purpose is solved in compelling both the parties to live
together, the best course was to dissolve the marriage by passing a decree of divorce 25.
20
Mrs. Anil Singh v. Dr. Narendra Singh; MANU/DE/2130/2014; Para 20
21
Lodder v. Lodder (1921) NZLR 876
22
Anjana Kishore v. Puneet Kishore, (2002) 10 SCC 194
23
Swati Verma (Smt.) v. Rajan Verma and Ors, (2004) 1 SCC 123
24
G.V.N.Kameswara Rao v. G. Jabili; MANU/SC/0019/2002
25 Rishikesh Sharma v. Saroj Sharma, (2006) 12 SCALE 282.

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[¶ 11]As per the 71st Law Commission Report and also as re-iterated in the case of Naveen
Kohli vs. Neelu Kohli26, in case the marriage has ceased to exist in substance and in reality,
there is no reason for denying divorce. Divorce should be seen as a solution and an escape route
out of a difficult situation.
[¶ 12]The Supreme Court has repeatedly decided in the matters of Durga Prasad Tripathy v.
Arundathi Tripathy 27, Sanghamitra Ghosh v. Kajal Kumar Ghosh 28, Sukhendu Das v. Rita
Mukherjee 29, A. Jayachandra v. Aneel Kaur 30 and most recently in 2019, in the case of R.
Srinivas Kumar vs. R. Shametha, that although under § 13 of the HMA, there is no provision
to divorce for reasons of irretrievable breakdown such relief can be granted to a party in a
matrimonial dispute, when it has been established that the marriage is unworkable.
[¶ 13]There is a rise in the necessity of irretrievable breakdown to be included as a ground for
divorce because there exists certain lacunas in the existing theories of divorce. The same is
prayed in the instant case because, the marriage between Respondent and Petitioner is beyond
repair. Therefore to protect the sanctity of marriage, to prevent the spouses from wasting
precious years of life, it is prayed that this court awards divorce and relieves Petitioner from
this despairing relationship.
[1.3] Whether the Petitioner is entitled to the alternative remedy of Judicial Seperation
on the ground of Desertion coupled with Cruelty?
26
Naveen Kohli vs. Neelu Kohli, (2006) 10 SCC 1
27
Durga Prasad Tripathy v. Arundathi Tripathy, 2005 7 SCC 353
28
Sanghamitra Ghosh v. Kajal Kumar Ghosh, (2007) 2 SCC 220
29
Sukhendu Das v. Rita Mukherjee, (2017) 9 SCC 632
30
A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22

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[¶ 14]As per the Collins Dictionary, a judicial separation means “a court decree requiring a
married couple to cease cohabiting but not dissolving the marriage”. Adopted from the English
concept of mensa et thoro, it is a separation granted by virtue of a court order. The word
‘Judicial’ in this context means an act done in pursuance of an order of the court and not merely
due to the act of the parties 31.
[¶ 15]Section 10 of the Hindu Marriage Act, 1955 provides for Judicial Separation. The Law
Commission, in 1974, gave that Judicial Separation shall be available for grounds under
Section 1332. Judicial Separation exists as an alternative relief, instead of a decree for divorce 33.
As of today, on a petition for dissolution of marriage by a decree of divorce, except in so far as
the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section
(1) of Section 13, the court may instead pass a decree for judicial separation.
[¶ 16]In Rohini Kumari v. Narendra Singh 34, the Hon’ble Supreme Court held that in case
where a spouse deserts their partner, the aggrieved party may file a suit of judicial separation,
instead of divorce. In A.R.Poddar v. Anushree Poddar35, the court held that baseless allegations
that the husband had an illicit relationship, amounts to cruelty, but instead of a divorce, the
court ordered Judicial Separation, in order to give the parties an opportunity to reconcile. Yet
again in Tapan Kumar Chakraborty v. Smt. Jyotsana Chakroborty 36, the court held that false
31
Jeet Singh v. State of U.P; (1993) 1 SCC 325
32
Effected through Marriage Laws (Amendment) Act, 1976
33
Gurdip Kaur v. Pritam Singh; 1988, ML 526, P&H 72
34
Rohini Kumari v. Narendra Singh, (1972) 1 SCC 1.
35
A.R.Poddar v. Anushree Poddar; (1991) HLR 611 Cal 27
36
Tapan Kumar Chakraborty v. Smt. Jyotsana Chakroborty; MANU/WB/0018/1997

Page 21 of 30
allegation against the character of any spouse made by the other spouse constitutes mental
cruelty and that such mental cruelly will be a valid ground for passing a decree of divorce under
Section 13(1)(ii) of the Hindu Marriage Act, even still only a decree for Judicial Separation
was passed. Cruelty and Desertion being accepted grounds for seeking Judicial Separation, it
is humbly prayed by the Petitioner’s counsel that, Judicial Separation shall be considered as an
alternate remedy in the ongoing case of the Petitioner, thereby giving both parties one year of
independence and time to rethink the status of this relationship.
[II] WHETHER RESPONDENT’S CASE OF RESTITUTION OF CONJUGAL
RIGHTS, IS JUSTIFIED IN LAW?
[¶ 17]It is humbly submitted before the Hon’ble Court that, in view with the facts of the case,
the case of restitution of conjugal rights against Petitioner is not justified. The petitioner would
like to submit the following arguments for affirming the same.
[2.1] Whether restitution of conjugal rights assumes importance in the legal realm?
[¶ 18]The anachronistic remedy of restitution of conjugal rights, which is not recognized by
Dharmashastra, was made available to all Indian communities during the British regime. 37 As
observed in Shakila Banu v. Gulam Mustafa 38“The concept of restitution of conjugal rights is
a relic of ancient times when slavery and quasi-slavery were regarded as natural. This is
particularly so after the Constitution of India came into force, which guarantees personal
liberties and equality of status and opportunity to men and women alike.”
[¶ 19]Familial structures cannot be regarded as spaces where autonomy of individuals are
violated. It is pertinent to note that the court had once struck down § 9 of the HMA claiming its
37
1 B M GANDHI, FAMILY LAW 165 (2nd ed., EBC 2019)
38
Shakila Banu v. Gulam Mustafa, AIR 1971 Bom 166

Page 22 of 30
unconstitutionality.39 With knowledge that the question of law is beyond the jurisdiction of this
court, we shall retain our contentions to the limit of defending restitution alone.
[¶ 20]The decision of the Court that had a more individualistic approach was later rescinded
by the Delhi High Court in Harvender Kaur v Harmander Singh Choudhry40 and the same was
affirmed by the Supreme Court in Saroj Rani v Sudarshan Kumar Chadha 41.
[¶ 21]On the contrary, we would like to contend that the courts should not follow the old
concept and rules of marital duties, its decision should be based on considering the present-day
situations.42 What should prevail is the personal safety of the parties to the wedlock and not the
rigid social fabric of the marital system. 43
[2.2] Whether compelling the husband to stay in an estranged marriage by allowing such
a decree is justified?
[¶ 22]As given under § 9 of the HMA, restitution of conjugal rights maybe filed only in cases
where one of the spouses have left the consortium of marriage without any reasonable cause.
It was upheld in Itwari vs. Asghrai compulsion of one spouse to live with the other also amounts
to cruelty, thereby the decree for restitution of conjugal rights was denied.44 Lord Herschell’s
observation of the barbarous nature of the remedy of forced cohabitation of a couple is of much
importance here.45 The same is applicable here as the facts of this case indicate that Petitioner
39
T. Sareetha v. T. Venkata Subbaiah, AIR 1983 AP 356
40
Harvender Kaur v Harmander Singh Choudhry, AIR 1984 Del 66
41
Saroj Rani v Sudarshan Kumar Chadha, (1984) 4 SCC 90
42
Shanti Nigam vs. Ramesh Chandra, AIR 1971 ALL 567
43
Smt. Rachna Jain vs Shri Neeraj Jain, (2005) 120 DLT 365
44
Itwari vs. Asghrai, AIR 1960 All 684
45
Russel v Russel, (1924) AC 687

Page 23 of 30
would be compelled to stay in the society of his wife if the decree for conjugal rights is granted.
Passing of such a decree would infringe the complete autonomy over one’s body46.
[¶ 23]By compelling the Petitioner to cohabit with Respondent, the court would interfere with
his sexual choices that is as an essential attribute of the autonomy and self-respect of an
individual.47 The choice of a partner whether within or outside marriage lies within the
exclusive domain of each individual. 48 Allowing a decree of restitution of conjugal rights
would offend the integrity and domestic intimacies of a person. 49
[¶ 24]The courts have held in a plethora of cases that such a ground for filing restitution of
conjugal rights also includes any act, omission or conduct on the part of one spouse that renders
it impossible for them to live together. 50 In the absence of a demand, the default or omission
of a duty amounts to negligence, and it need not be expressed through a formal refusal.51 When
it is impossible to live like husband and wife any compulsion to unite them will lead to social
evils and disturbance of mental peace and order in the family life. 52 The ground established
earlier with respect to mental cruelty shall thereby stand valid and would comply with § 9(2)
of the HMA to serve as a reasonable excuse for dismissing the restitution of conjugal rights.
Thus, it is humbly submitted that the petition be dismissed.
46
K.S. Puttuswamy v Union of India, AIR 2017 SC 4161
47
Navtej Singh Johar v. Union of India, AIR 2018 SC 4321
48
Shafin Jahan v. Asokan, AIR 2018 SC 1933
49
Maya Devi v Kailash Chander, (2014) 5 RCR (Civil) 968
50
Sushila Bhai v. Prem Narayan, AIR 1986 MP 225
51
Narayan Sahu v. Sushama Sahu (1992 Crl.L.J - 2912).29
52
Supra note 41.

Page 24 of 30
[III.] WHETHER RESPONDENT IS ENTITLED TO GET THE CUSTODY OF
THEIR DAUGHTER?
[¶ 25]It is humbly submitted before this Hon’ble Court that the Respondent is not entitled to
get the custody of the child because as per § 6(a) of the Hindu Minority and Guardianship Act
(hereinafter referred to as “HMGA”), a father is the natural guardian of the son and the
unmarried daughter. In this case, the daughter is currently 7 years of age 53, which makes the
father her natural guardian and the daughter has been staying with the petitioner from the time
she was born. The expression “guardian” as per the Act defines it as any person having the
care of the person of a minor or of his property or of both, his person and property, and
includes a natural guardian among others 54.
[¶ 26]In a decision by the Hon’ble Supreme Court, it was held that “father is the natural
guardian and mother could be considered as natural guardian only if the father is not taking
any interest in the affairs of the minor 55”. From the material on record it is known that the
Petitioner is looking after the daughter properly, thus he will be the natural guardian as per the
provisions laid down in the Act.
[3.1] Whether the welfare of the child is the only factor determining the custody of the
child?
[¶ 27]It is respectfully submitted before this Hon’ble Court that welfare and the best interest
of the child should be given the paramount consideration over in deciding custody. Article 25
of the Universal Declaration of Human Rights, 1948 proclaims that “childhood is entitled to
53
MOOT PROPOSITION, 2nd SURANA & SURANA AND ARMY INSTITUTE OF LAW NATIONAL FAMILY
LAW MOOT COURT COMPETITION 2020-21

54
Hindu Minority and Guardianship Act, 1956; §. 4(a)
55
Panni Lal v. Rajinder Singh, (1993) 4 SCC 38

Page 25 of 30
special care and assistance 56”. Article 3(1) of Convention on the Rights of Child, 1989
(hereinafter referred to as “the CRC”) specifies that “an institution while taking actions for
the welfare of the child, its primary consideration shall be the best interest of the child57”.
Furthermore, Article 9(1) provides that a child should not be separated from his/her parents,
except in situations where such separation is in the best interest of the child58.
[¶ 28]§ 17 of The Guardians and Wards Act, 1890 lays down that “while appointing the
guardian of a minor the court has to keep in mind the welfare of the minor 59.” In R.V. Srinath
Prasad v. Nandamuri Jayakrishna & Ors.60 and in Dr. (Mrs.) Veena Kapoor v. Shri Varinder
Kumar61 the Apex Court noted that the custody proceedings are a sensitive matter and while
deciding it a balance has to be maintained between the sentiments and approach of the parties.
The guiding principle, however, remains in the welfare of the child.
[¶ 29]It is a well-established principle that the court while exercising parens patriae
jurisdiction would be guided by the sole and paramount consideration of what would best sub-
serve the interest of the child, to which all other considerations must yield. In the case,
Rosy Jacob v. Jacob A Chakarmakkal62, the court held that “The children are not mere chattels:
nor are they mere playthings for their parents.” A three bench judge of the Apex Court in the
case, V. Ravichandran v. Union of India and Ors 63, opined that “whenever a question arises
56
Article 5, Universal Declaration of Human Rights
57
Article 3(1) , UN Commission on Human Rights, Convention on the Rights of the Child, 1990
58
Article 9(1) , UN Commission on Human Rights, Convention on the Rights of the Child, 1990
59
The Guardian and Wards Act, 1890; §. 17
60
R.V. Srinath Prasad v. Nandamuri Jayakrishna & Ors., AIR 2001 SC 1056
61
Dr. (Mrs.) Veena Kapoor v. Shri Varinder Kumar, AIR 1982 SC 792
62
Rosy Jacob v. Jacob A Chakarmakkal, (1973) 1 SCC 840
63
V. Ravichandran v. Union of India and Ors, (2010) 1 SCC 174

Page 26 of 30
before a court pertaining to the custody of a minor child, the matter is to be decided not on
considerations of the legal rights of the parties, but on the sole and predominant criterion of
what would serve the best interest of the minor”.
[¶ 30]In the case Gaurav Nagpal v. Sumedha Nagpal64, the court held that the term ‘welfare’
under § 13 of the Act, must be construed in a manner to give it the widest interpretation. The
moral and ethical welfare of the child must weigh with the court, as much as the physical well-
being. The same was reiterated in Vivek Singh v. Romani Singh 65.
[¶ 31] In a recent judgment, Smriti Madan Kansagra v. Perry Kansagra66 the court was of the
opinion that “welfare of the Child would be to stay in India with his mother who has brought
up the child for last 11 years.” In the present case, the issue that has arisen for our consideration
is as to what should be the dispensation to be followed concerning the custody of their minor
daughter who is currently 7 years of age. The child has been staying with the petitioner since
the day she was born and she is accustomed to the living environment. Henceforth, the counsel
for the Petitioner would like to aver that the child has no personal or emotional relationship
with the Respondent. It is clear from the facts of the case that the petitioner is in a financially
sound position. Although his work is in the US there is an option for him to work from home
which lets him spend more time with his daughter and nurture all her needs, whilst that’s not
the case with the respondent. It is respectfully submitted before this court, that the custody of
the child shall be granted to the Petitioner.
[3.2] Whether custody of the child can be granted on the basis of emotional attachment?
64
Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42
65
Vivek Singh v. Romani Singh, (2017) 3 SCC 231
66
Smriti Madan Kansagra vs. Perry Kansagra, (2019) 20 SCC 753

Page 27 of 30
[¶ 32]It is most humbly submitted that, the Apex Court and all other Courts in several
proceedings have reiterated that in the matter related to custody of a minor, the welfare of the
minor shall be given paramount consideration67. In a case where, a child who was residing with
grandparents for last several years became emotionally attached to them, and when the father
filed for custody it was held that the child should stay with the grandparents 68. In another case
of K Ponnarasi v. P. Alagu 69, the child was staying with the grandmother and the father wanted
the custody of the child, which was rejected on similar grounds.
[¶ 33]In a striking judgment in Lahari Sakhamuri v. Sobhan Kodali 70 the court laid down 7
factors determining the grant of custody and they are a) maturity and judgment b) mental
stability c) ability to provide access to schools d) moral character e) ability to provide
continuing involvement in the community f) financial sufficiency g) factors involving the
relationship with child. However, these factors are not exhaustive 71.
[¶ 34]In Smt. Respondent Kapoor v. Rajiv Baijal72, the Apex Court had observed that the
principle on which the Court should decide the suitability of the guardian mainly depends on
two factors: (i) the parent’s fitness or otherwise to be the guardian, and (ii) the interest of the
minors.
67
Dhanwanti Joshi v. Madhav Und, (1998) 1 SCC 112; Elizabeth Dinshaw v. Arvind M.Dinshaw, (1987) 1 SCR
175; Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479; Mrs.Shilpa Aggarwal v. Mr.Aviral Mittal & Anr.,
(2010) 1 SCC 591; Mausami Moitra Ganguli v. Jayant Ganguli, (2008) 7 SCC 673
68
Supra note 60.
69
K Ponnarasi v. P. Alagu, C.M.A.(MD)No.411 of 2015
70
Lahari Sakhamuri v. Sobhan Kodali, (2019) 7 SCC 311
71
VA.CODE ANN. § 20-124.3(10); see also 15 V.S.A. § 665
72
Smt. Respondent Kapoor v. Rajiv Baijal, (2009) 7 SCC 322

Page 28 of 30
[¶ 35]In deciding the question as to whether a father is fit or unfit to be appointed as the
guardian73, the "welfare of the minor child" is of foremost consideration and such a question
cannot be decided merely based on the rights of the parties under the law. Removing the minor
child of the Petitioner and the Respondent, from where she resided since birth will affect her
interest and that can psychologically affect the child as she is emotionally attached to the
petitioner and the surrogate mother. It is hence prayed that custody remains with the Petitioner.
[3.3] Whether the oral agreement entered with Priya is valid?
[¶ 36]It is humbly submitted before this Hon’ble Court that the agreement entered among the
parties is not enforceable, as it fails to fall within the ambit of essentials of a valid agreement.
As per § 10 of the Contract Act74, all agreements are not contracts. An agreement to be a
contract, i.e., to be enforceable by law, must fulfil the conditions mentioned in the Act.
Moreover, the object or consideration of the agreement must be lawful, and the agreement must
not be declared void by the Contract Act75.
[¶ 37]§ 25 of the Contract Act76, specifies agreement without consideration is void unless done
for ‘Natural love and affection between the parties standing in near relation to each other.’
Or: ‘Unless it is a promise to compensate wholly or in part, a person who has already
voluntarily done something for the promisor, or which the promisor was legally compellable
to do.’ In the present case, when the parties entered into the verbal agreement there was no
mention of the consideration but only about the terms and conditions. Here, Priya is neither a
near relation nor the agreement is made out of natural love and affection. Since a lawful
73
Shyamrao Maroti Korwate v. Deepak Kisanrao Tekam, (2010) 10 SCC 314
74
The Indian Contract Act, 1870; §. 10
75
ibid, §. 19
76
ibid; §. 23

Page 29 of 30
consideration is absent, the petitioner would like to aver that the agreement entered between
the parties is void and thus cannot be enforced.
[¶ 38]The legal enforceability of surrogacy agreements where one of the main issue answered
in Baby Manji Case 77, in which the court held that agreement as null and void and also it did
not have any legal effect either. Besides, the surrogacy agreement is sought to be governed by
the Contract Act, but there is a major limitation in the applicability of contractual remedies for
breach of contract to the surrogacy agreement.
[¶ 39]Besides, the object of the agreement is immoral and against the law of nature. Thus, the
petitioner respectfully submits that the agreement entered by the parties is not enforceable and
binding on Priya, who is the surrogate mother of the child.
77
Baby Manji Yamada v. Union of India, (2008) 13 SCC 518

Page 30 of 30
PRAYER
WHEREFORE, in the light of the issues raised, arguments advanced and authorities cited, it
is most humbly prayed before this Hon’ble Court that, the divorce application be allowed and
the custody of the child be granted to the Petitioner.
AND/OR pass any other order or orders as this Hon’ble Court may deem fit and proper in the
Circumstances of the case and in the interest of Justice, Equity and Good Conscience.
All of which is most humbly and respectfully submitted.
Place: ___________,
Date: _________2021. S/d____________
COUNSEL FOR THE PETITIONER

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2nd SURANA & SURANA AND ARMY INSTITUTE OF LAW

IN THE HON’BLE FAMILY COURT OF DELHI

MEMORANDUM ON BEHALF OF THE PETITIONER

II. FOREIGN CASE LAWS 7

IV. INTERNATIONAL COVENANTS 8

I. WHETHER THE DIVORCE APPLICATION FILED BY 14

II. WHETHER RESPONDENT’S CASE OF RESTITUTION 21

OF CONJUGAL RIGHTS IS JUSTIFIED IN LAW?

III. WHETHER RESPONDENT IS ENTITLED TO GET THE 24

CUSTODY OF THEIR DAUGHTER?

MEMORANDUM ON BEHALF OF PETITIONER

AIR All India reporter

CMA Civil Miscellaneous Appeal

DLT Delhi Law Times

SCC Supreme Court Cases

SCR Supreme Court Reporters

HMA Hindu Marriage Act, 1955

HMGA Hindu Minority and Guardianship Act, 1956

MEMORANDUM ON BEHALF OF PETITIONER

S.No CASE TITLE CITATION P.

2. A.R.Poddar v. Anushree Poddar (1991) HLR 611 Cal 27 Passim

3. Anjana Kishore v. Puneet Kishore (2002) 10 SCC 194 Passim

4. Baby Manji Yamada v. Union of India, (2008) 13 SCC 518 Passim

5. Chetan Dass v. Kamla Devi 2001 4 SCC 250 Passim

6. Dastane v. Dastane, AIR 1975 SC 1534 Passim

7. Dhanwanti Joshi v. Madhav Und (1998) 1 SCC 112 Passim

9. Durga Prasad Tripathy v. Arundathi (2005) 7 SCC 353 Passim

10. Elizabeth Dinshaw v. Arvind M.Dinshaw 1987 (1) SC 42 Passim

11. G.V.N.Kameswara Rao v. G. Jabili (2002) 2 SCC 296 Passim

12. Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42 Passim

13. Gananath Pattnaik v. State of Orissa (2002) 2 SCC 619 Passim

14. Gurdip Kaur v. Pritam Singh 1988, ML 526, P&H 72 Passim

15. Harvender Kaur v Harmander Singh AIR 1984 Del 66 Passim

16. Itwari v. Asghrai AIR 1960 All 684 Passim

18. Jai Dayal v. Shakunthala Devi AIR 2004 Del 39 Passim

MEMORANDUM ON BEHALF OF PETITIONER

19. Jeet Singh v. State of U.P (1993) 1 SCC 325 Passim

20. Joydeep Majumdar v. Bharati Jaiswal 2021 SCC OnLine SC Passim

21. K Ponnarasi v. P. Alagu, C.M.A.(MD)No.411 of Passim

22. K. Srinivas Rao v. D. A. Deepa (2013) 5 SCC 226 Passim

23. K.S. Puttuswamy v. Union of India AIR 2017 SC 4161 Passim

24. Lahari Sakhamuri v. Sobhan Kodali (2019) 7 SCC 311 Passim

27. Mrs. Anil Singh v. Dr. Narendra Singh MANU/DE/2130/2014 Passim

29. Narayan Sahu v. Sushama Sahu 1992 CriLJ 2912 Passim

30. Narendra v. K. Meena; (2016) 9 SCC 455 Passim

31. Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558 Passim

33. Panni Lal v. Rajinder Singh, (1993) 4 SCC 38 Passim

34. R. Srinivas Kumar v. R. Shametha AIR 2019 SC 4919 Passim

35. R.V. Srinath Prasad v. Nandamuri AIR 2001 SC 1056 Passim

Jayakrishna & Ors

36. Raj Talreja v. Kavita Talreja (2017) 14 SCC 194 Passim

37. Rishikesh Sharma v. Saroj Sharma (2006) 12 SCALE 282 Passim

38. Rohini Kumari v. Narendra Singh (1972) 1 SCC 1 Passim

MEMORANDUM ON BEHALF OF PETITIONER

39. Rosy Jacob v. Jacob A Chakarmakka (1973) 1 SCC 840 Passim

40. Ruchi Majoo v. Sanjeev Majoo (2011) 6 SCC 47 Passim

41. Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511 Passim

43. Saroj Rani v. Sudarshan Kumar Chadha (1984) 4 SCC 90 Passim

44. Savitri Pandey v. Prem Chandra Pandey (2002) 2 SCC 73 Passim

45. Shafin Jahan v. Asokan AIR 2018 SC 1933 Passim

48. Shyamrao Maroti Korwate v. Deepak (2010) 10 SCC 314 Passim

49. Sirajmohmedkhan Janmohamadkhan v. (1981) 4 SCC 250 Passim