FL - 04

3rd SURANA & SURANA AND ARMY INSTITUTE OF LAW NATIONAL

FAMILY LAW MOOT COURT COMPETITION 2021-22

BEFORE THE HONOURABLE FAMILY COURT

OF DELHI

3 rd SURANA & SURANA AND ARMY INSTITUTE OF LAW NATIONAL

FAMILY LAW MOOT COURT COMPETITION 2021-22

IN THE MATTER OF

DHRUV………………………………………………………PETITIONER
VS
TARA………………………………………………………..RESPONDENT

MEMORANDUM ON BEHALF OF RESPONDENTS

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TABLE OF CONTENTS

CONTENTS PAGE NO.

LIST OF ABBREVIATIONS 3

INDEX OF AUTHORITIES 4

STATEMENT OF JURISDICTION 6

STATEMENT OF FACTS 7

ISSUES PRESENTED 11

SUMMARY OF ARGUEMENTS 12-13

ARGUMENTS IN DETAIL 14-24

14

ISSUE 1. WHETHER RESTITUTION OF CONJUGAL RIGHTS

SHOULD BE GRANTED?

18

ISSUE 2. WHETHER THE RESPONDENT FULFILL THE

CRITERION FOR INTERIM MAINTENANCE?

20

ISSUE 3. TO WHOM SHALL THE CUSTODY OF THE CHILD

BE GIVEN, CONSIDERING THE WELFARE OF THE CHILD

OF PARAMOUNT CONSIDERATION?

PRAYER 25

MEMORIAL ON BEHALF OF REPONDENTS

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LIST OF ABBREVIATIONS

1. AIR All India Reporter

2. Anr Another

3. Ch Chapter

4 Mad. Madras

5. OA Original Application

6. Ors Others

7. SC Supreme Court

8. SCC Supreme Court Cases

9. v. Versus

10. HMA Hindu Marriage Act, 1955

11. HAMA Hindu Adoption and Maintenance Act, 1956

MEMORIAL ON BEHALF OF REPONDENTS

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INDEX OF AUTHORITIES

CASES:

Tushar Roy vs Sukla Roy 24 June, 1992

1993 CriLJ 1659

Vijay Kumar Gupta vs Smt. Kiran Bala FAM No. 138 of 2012

Neha Tyagi v. Lieutenant Colonel Deepak

2022 (1) RCR (Civil) 250
Tyagi

Ramnesh Pal Singh v. Sugandhi Aggarwal 2021 SCC OnLine Del 5497

Chaturbhuj v. Sita Bai (2008) 2 SCC 316

Savitaben Somabhai Bhatiya v. State of

2005 Cr LJ 2141 (SC)
Gujarat 

Nil Ratan Kundu v. Abhijit Kundu 2008 (9) SCC 413

In Rosy Jacob v. Jacob A. Chakramakkal 1973 AIR 2090, 1973 SCR (3) 918

Ratan Kundu v. Abhijit Kundu [2008] INSC 1334

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III. BOOKS

1. FAMILY LAW BY DR. PARAS DIWAN, 11TH EDITION, 2018

2. HINDU LAW BY SIR DINSHAW FARDUNJI MULLA, 21ST EDITION

IV. STATUTES

1. Hindu Marriage Act, 1955

2. Hindu Adoption and Maintenance Act, 1956

3. Hindu Minority and Guardianship Act, 1956

V. ARTICLES AND REPORT

‘Why are millions of Indian women quitting jobs?’

DECCAN CHRONICLE BY REET BHAMBHANI

MEMORIAL ON BEHALF OF REPONDENTS

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STATEMENT OF JURISDICTION

The petitioner has approached The Family Court, Delhi under section 19 of THE HINDU

MARRIAGE ACT, 1955.

MEMORIAL ON BEHALF OF REPONDENTS

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STATEMENT OF FACTS

1. On January, 2015 Dhruv and Tara got married as per Hindu rites in the

presence of their families.

2. In August 2016, Tara got a lucrative job which she had to refuse as Dhruv was

not in favor of her work during her pregnancy to which she was quite unhappy

and felt frustrated. In March 2017, the couple was blessed with a daughter named

Chandni to which Dhruv and his family was not very happy.

3. Dhruv was very busy in work and was not able to give time to family. Tara

found Druv talking secretly number of times with his secretary on phone. Tara

tried to read Kavita and Dhruv’s whatsapp chat regarding the meetings organized

in the evening. Moreover, Kavita answered phonw when Tara called Dhruv.

Dhruv and Tara had regular fights because of this.

4. Dhruv insisted Tara to stay at home and look after the daughter instead of

looking for job to which she was not happy. Dhruv was appointed as the Vice

President of the National Board of Industries.

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5. One Evening in June 2020 Dhruv had a meeting with client but tara had

apprehension that Dhruv was going with Kavita and not for official meeting.

When Dhruv came at 2:00 AM they both had an ugly fight.

6. Tara took her daughter and left Dhruv’s house. Tara’s parents was upset and

tried to console her and at last they consulted a counselor Mr. Navin who was

consulted earlier also for Tara.

7. Tara opened up to Navin about her matrimonial life and her relationship with

Dhruv. Tara showed improvement in her behavior. Even sometime Navin visits

Tara home just to check whether she was doing fine. They both liked spending

time with each other.

8. Tara’s parents insisted Tara to go back to Dhruv’s house to which Navin went

silent on hearing.

9. Tara went back to Dhruv’s house but after sometime the things continues.

Dhruv went busy on work. Tara got upset and shared everything with Navin. It

was observed that Tara’s calls with Navin got more frequent as Dhruv checked

Tara’s Phone but she would disconnect the call in presence of Dhruv. On Dhruv’s

asking for the same, she clarified that Navin was just a friend and blamed Dhruv

that he was involved with Kavita.

10. In November 2021 when Navin came to Delhi to attend a conference, he

visited Tara’s house to which Tara felt happy and enjoyed spending time with

him. Tara also started going out of the house for long hours. One day Dhruv came

home and found Navin at his house. Tara introduced Navin as her friend and

Dhruv also discovered from Navin about Navin’s earlier visit also to his house

and meeting tara. Chandni requested Dhruv that “Tell uncle to go back”.

MEMORIAL ON BEHALF OF REPONDENTS

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11. Tara remained silent when in anger Dhruv asked Tara to chose between Navin

and him. On keeping quiet, Dhruv forcibly threw Tara out and ask her to never

come back ever. Tara took Chandni with her.

12. Dhruv refused to amicably settle the matter. When Navin heard of Tara return

to her home, he offered her job as Floor Manager as he knew that she always

wanted to be financially independent woman.

13. Tara got to know about her pregnancy after she came back to her parent’s

home. When Tara informed Dhruv about it he refused to accept being the father of

the unborn child.

MEMORIAL ON BEHALF OF REPONDENTS

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ISSUES PRESENTED

ISSUE 1:

WHETHER RESTITUTION OF CONJUGAL RIGHTS SHOULD BE GRANTED?

ISSUE 2:

WHETHER THE RESPONDENT FULFILL THE CRITERION FOR INTERIM

MAINTENANCE?

ISSUE 3:

TO WHOM SHALL THE CUSTODY OF THE CHILD BE GIVEN, CONSIDERING

THE WELFARE OF THE CHILD TO BE OF PARAMOUNT CONSIDERATION?

MEMORIAL ON BEHALF OF REPONDENTS

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SUMMARY OF ARGUMENTS

ISSUE 1:

WHETHER RESTITUTION OF CONJUGAL RIGHTS SHOULD BE GRANTED?

We humbly submit that the petitioner does not have a reasonable ground to file

divorce. His opinion on my client’s and Navin’s (her counsellor) friendship is

half baked. He is misinterpreting the situation and jumping to conclusions which

is costing their marriage. This is going to hamper their daughter’s mental health

too. Petitioner should not put stain on his wife’s image unless his allegations are

not proven. They were a family and giving up on each other is not noble. My

client seeks restitution of conjugal rights.

ISSUE 2:

WHETHER THE RESPONDENT FULFILL THE CRITERION FOR INTERIM

MAINTENANCE?

We respectfully put forward that since the respondent is pregnant, not

financially independent and has to look after Chandni (couple’s daughter) she is

humbly asking for interim maintenance. Her attempt is to fix their relations and

since the day they have married her priorities have been her family and for the

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same she left her job and twice did not accept the job offers, all these sacrifices

shouldn’t go in vain and maintenance should be granted.

ISSUE 3:

TO WHOM SHALL THE CUSTODY OF THE CHILD BE GIVEN, CONSIDERING

THE WELFARE OF THE CHILD TO BE OF PARAMOUNT CONSIDERATION?

We humbly submit that Chandni (couple’s daughter) is just five years old and

this makes my client her natural guardian. Respondent is a responsible and a

dedicated mother, she kept her career and ambition aside to give her daughter

the best care and tutelage. On the other hand, the petitioner has a busy schedule

and as mentioned in the fact sheet that his lack of attention in family is very

common. Since Chandni’s welfare and wellbeing is of paramount consideration

the best suited parent for custody is my client.

MEMORIAL ON BEHALF OF REPONDENTS

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ARGUMENTS IN DETAIL

ISSUE 1: WHETHER RESTITUTION OF CONJUGAL RIGHTS SHOULD BE

GRANTED?

The Marriage between petitioner and respondent was solemnized in January 2015 according

to the Hindu rites1 in the presence of their families. We humbly submit that the respondent is

a dedicated mother and a wife. Since the beginning she has sacrificed for her family. Starting

from leaving her job and moving with petitioner and his family, then within a year of their

marriage she got a job offer and she wanted it but only because petitioner wanted her to stay

at home and take care of herself during her pregnancy so she turned down the offer. She did

not consider her choice above her husband’s decision and this made her unhappy and

frustrated. This series of events tell us a lot about respondent, not only she was submissive

but kept her family as a priority. She did not think twice and obeyed petitioner’s decision but

what was shocking is that when their daughter Chandni was born her husband and in-laws

were not happy.

We live in a patriarchal society. So, a wife sacrificing her job for the family may sound

normal and usual but it takes a lot to turn down it for the family and being selfless than

accepting and working simultaneously. Since, respondent did what her husband asked her to

do she will without a doubt might be having certain expectations in return from her husband.

Petitioner never put his career secondary but expected respondent to do so. He never took

time for family and was mostly busy. He was unavailable for his wife and daughter. He was

neither emotionally present not by their side to support them. His careless behavior towards

his daughter could be traced back as he was not happy when she was born. Petitioner was

1
Hindu Marriage Act 1955

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absent in his own marriage and was barely there for respondent. This made my client insecure

which was very natural since her husband used to be busy with his secretary Kavita. She

asked him multiple times about what is going on between both of them, she wanted an

explanation since he was cutting time from his family in order to invest in his career. His

ignorance towards her concerns tells that he was least bothered and was not considerate

towards her anymore.

After all the misunderstandings between the couple because of Kavita, Respondent decided to

share it with her family. Her family tried to make her understand that adjustments are

required in a marriage and asked her to communicate it with petitioner in order to resolve the

issue instead of acting impulsively.

We kindly bring this to your notice that the petitioner very conveniently withdrew himself

from respondent’s society. He was leading his life normally, becoming successful and

achieving goals. All this time he was living like a single entity and overlooked her problems.

She was struggling emotionally and mentally but still motherhood never took a backseat. She

wanted her husband to take care of her and the least he could do was to listen to his wife.

There was no reason in particular for the petitioner to overlook my client’s choices and

demands. Since she was his wife so her questions regarding Kavita were natural, her

speculation was justified. Anybody in her position would do the same. Petitioner became very

busy in office and stopped supporting respondent. He did not allow her to work, although our

society has seen this shift where women are not only working but looking after their families

too. So, his disapproval regarding her job was questionable since she was not asking for a lot.

Being financially independent is basic.

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We humbly submit a survey by Deccan Chronicle2, “The more pertinent question is whether

these “Modern India” solutions are applicable and equally successful deeper in our country as

well? Archaic social norms and a patriarchal society force women to quit work in India after

marriage and motherhood. Worse still are the skewed gender relations and biases in India.”

“The availability of reliable domestic help or good quality day care facilities continue to

impact the careers of working women in a big way. The absence of good quality and

reasonably priced day-care facilities is a major career disruptor. Let’s face it, in most

households the man’s career holds center-stage and women often compromise on their own

careers to accommodate their spouses. This is one of the major challenges for working

women — to adapt their own careers to suit the ebbs and flows of their spouses’ careers.”

On the other hand, petitioner was appointed as the Vice President of his company which

infers he kept himself as priority opposite to what respondent did.

They had an ugly fight in June 2021. Anyway, she was bottled up and there was a lot of rage

since Petitioner was never emotionally available therefore, she left home with her daughter

Chandni outrageously.

It is most humbly submitted that the respondent always attempted to fill the gaps between the

couple but, how far could we go as petitioner don’t want to work as a family. Seeing my

client’s conditions her parents were concerned and approached a Counsellor Mr. Navin. She

had consulted him earlier also. Petitioner’s ignorance and indifference towards my client

affected her to such an extent that she had to go for therapies.

But marriage is an institution that should be saved till the last moment. Their marriage was

evidently alive, only requisite was Dhruv’s attention and participation in the marital bond.

The sustenance in the marriage was missing and that could be recovered and my client is
2 ‘Why are millions of Indian women quitting jobs?’

DECCAN CHRONICLE BY REET BHAMBHANI

MEMORIAL ON BEHALF OF REPONDENTS

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ready to work on her relations with petitioner that is why first person to know about her

pregnancy was Petitioner even after what he did to her. In Vijay Kumar Gupta vs Smt. Kiran

Bala3, “Learned Court below has considered that throughout, respondent-wife has expressed

her willingness to resume marital relation and she had no intention of giving divorce. Learned

Court below has also taken into consideration that despite all proceedings of conciliation and

re-union though respondent-wife is willing to reside along with the appellant, the appellant

has refused to re-unite”.

His false allegations without any solid proof just shows that he is trying to get rid of all the

responsibilities. In, Mr. Sukumar Guha, the learned Advocate in Tushar Roy vs Sukla Roy4

“The fact that a child was born during the continuance of a valid marriage between a woman

and her husband is a conclusive proof that the said child is the legitimate child of that man

unless it can be shown that the parties to the marriage had no access to each other at any time

when the child could have been begotten”.

We most humbly submit that my client seeks restitution of conjugal rights and the petitioner

is not entitled to walk out of the marriage now, he has to take care of his wife and their

daughter. This is beneficial for their daughter Chandni also as she will get care and tutelage

of both mother and father. Just on mere speculations he can’t falsely accuse my client and

shrug his shoulders and ask for divorce. There are a lot of factors to be considered. This

impulsive and groundless appeal can’t be seriously taken.

3 Chattisgarh High Court 29 November, 2019 FAM No. 138 of 2012

4 Calcutta High Court, 24 June, 1992

1993 CriLJ 1659

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ISSUE 2: WHETHER THE RESPONDENT FULFILL THE CRITERION FOR

INTERIM MAINTENANCE?

We humbly submit that our society is patriarchal, where women have adapted to live in an

oppressive and abusive environment. In this socially constructed system male has primary

power and they have not given women the liberty to decide things for themselves.

Since, past two decades we have been seeing a number of instances where women are not

only taking care of their families but also are going out, working and becoming financially

independent. But this doesn’t mean that all the women are getting these similar rights. For

example, my client, she gave up a lot for her family and husband. She did what most of the

women think they are obligated to do in a marriage, be submissive.

We respectfully submit that before marriage my client was working as a manager in a

company at Mohali. She was a bubbly and an extrovert girl, but after marriage she

transformed herself according to her family requirements. Then she became a wife, a

daughter in law and a great mother to her daughter Chandni.

We humbly present before the court that in 2016, my client got a lucrative job offer that she

had to refuse with a heavy heart only because petitioner was not in the favor of her going out

for work during pregnancy. She got frustrated as she was willing to work but she couldn’t

take that offer. After few months when Chandni got older she again started looking for job

but yet again Dhruv insisted her to drop this idea and stay at home. These series of events

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clearly signify that why the respondent was not financially independent and why was she

mostly upset and subsequently she lost interests in daily activities.

In Neha Tyagi v. Lieutenant Colonel Deepak Tyagi (2021)5 - It has been stated by the

honorable Supreme Court of India that “As the mother is unemployed. As a result, regardless

of the decree of dissolution of the marriage between the appellant-wife and the respondent, a

reasonable/sufficient sum is necessary for her son’s maintenance, including his schooling,

which must be provided by the husband”.

In Ramnesh Pal Singh v. Sugandhi Aggarwal, 20216 - The Delhi High Court has observed

that “the fact that a wife is capable of earning is no ground to deny interim maintenance to

her opining that many time wives sacrifice their career only for the family."

The Supreme Court in Chaturbhuj v. Sita Bai7, has stated that the object of the maintenance

proceedings is not to punish a person for his past neglect, but to prevent vagrancy by

compelling those who can provide support to those who are unable to support themselves and

who have a moral claim to support.

 In Savitaben Somabhai Bhatiya v. State of Gujarat 8. It was stated that the object of granting

maintenance is to prevent vagrancy and destitution. It provides a speedy remedy for the

supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights

and natural duties of a man to maintain his wife, children and parents when they are unable to

maintain themselves.

We humbly put forward that my client seeks for interim maintenance 9 because she is here to

fix things and not running away from few obstacles which are normal in a marriage. She is

not taking hasty and irresponsible calls for her family.

5 Rajasthan High Court, 18 September, 2019, 2022 (1) RCR (Civil) 250

6
 21 December, 2021, 2021 SCC Online Del 5497
7 (2008) 2 SCC 316

8 Supreme Court of India, 10 March, 2005, 2005 Cr LJ 2141 (SC)

9 Section 20 of Hindu Adaptions and Maintenance Act, 1956

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ISSUE 3: TO WHOM SHALL THE CUSTODY OF THE CHILD BE GIVEN,

CONSIDERING THE WELFARE OF THE CHILD TO BE OF PARAMOUNT

CONSIDERATION?

We humbly submit that how shocking it is that a mother who literally took every decision by

keeping her daughter’s welfare in mind is questioned today. Petitioner is disrespecting my

client’s sacrifices done for their daughter and his family. Keeping in mind that Dhruv was not

happy with the birth of their daughter initially. My client kept her career aside to stay at home

with Chandni and be physically available to her and give her undivided attention is being

questioned and on the top of that being falsely accused is not appreciated. She is more

capable of handling her.

We most humbly submit that contribution of both the parents is best case scenario for a child.

Since, petitioner seeking for divorce and is asking for their daughter’s custody it is not fair on

so many grounds. She deserves a healthy environment which is being disrupted because of

Dhruv’s actions and reckless decisions.

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The Hon’ble Supreme Court in the case of Nil Ratan Kundu v. Abhijit Kundu 10(supra),

wherein the court has held that the principles in relation to custody of a minor are well

settled. “In determining the question as to who should be given the custody of a minor child,

the paramount consideration is the "welfare of the child" and not the rights of the parents

under the statute for the time being in force. The court held that in selecting a guardian, the

court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight

to a child's ordinary comfort, contentment, health, education, intellectual development and

favorable surroundings. But over and above physical comforts, moral and ethical values

cannot be ignored. They are equally or even more important, essential and indispensable

considerations. If the minor is old enough to form an intelligent preference or judgment, the

court must consider such preference as well, though the final decision should rest with the

court as to what is the conducive to the welfare of the minor”.

The natural guardians of a Hindu minor11; in respect of the

minor's person as well as in respect of the minor’s property (excluding his or her undivided

interest in

joint family property), are—

(a) in the case of a boy or an unmarried girl—the father, and after him, the mother: provided

that

the custody of a minor who has not completed the age of five years shall ordinarily be with

the

mother;

(b) in the case of an illegitimate boy or an illegitimate unmarried girl—the mother, and after

her,

the father;

10 2008 (9) SCC 413

11 Section-6 of The Hindu Minority and Guardianship Act, 1956

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(c) in the case of a married girl—the husband:

Provided that no person shall be entitled to act as the natural guardian of a minor under the

provisions

of this section—

(a) if he has ceased to be a Hindu, or

(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha)

or

an ascetic (yati or sanyasi).

We kindly submit that above mentioned requisites are fulfilled by my client as Chandni was

provided with good care safe environment to live. Even when my client was struggling

mentally because of petitioner’s careless approach she didn’t let this hamper Chandni’s

brought up. Now, also she is taking a firm stand for her daughter’s custody as she has seen

and experienced hindrance because of her husband’s busy schedule and lack of attention in

household affairs so she doesn’t want that to happen with their daughter too.

Mothers are primary and natural caregivers even if we talk about the case in hand we can see

the history of performing nourishing related tasks it is easily determined that my client is

more responsible. In Rosy Jacob v. Jacob A. Chakramakka12 l, there lordships of the

Supreme Court observed that “where there is dispute between mother and father regarding

custody of a minor the court is expected to strike a just and proper balance between

requirement of the welfare of the minor and rights of the parents over the minor child. In

striking such a balance it may be kept in mind that there is really no substitute for the

mother's love, affection and care for her infant which the infant is most unlikely to get if its

custody is entrusted to the father and therefore, in such cases the court should lean in favour

12 1973 AIR 2090, 1973 SCR (3) 918

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of the mother in matter of custody of the minor rather than in favour of the father. The

controlling factor is the welfare of the child and not the right of the parents”.

We humbly submit that if the petitioner was so concerned then why didn’t he stop my client

from taking Chandni along with her when he forcibly threw Tara out her their house. He has

a second chance to get back her daughter when respondent’s parents called him to amicably

settle the matter but again there was initiation. This abandoning trait is not suitable for

somebody who is asking for custody of a child, this is a lifetime responsibility and not just a

ego booster move.

Bench observed the Supreme Court Decision in Ratan Kundu v. Abhijit Kundu, wherein it

was held that “A court while dealing with custody cases, is neither bound by statutes nor by

strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a

minor, the paramount consideration should be the welfare and well-being of the child.”

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We humbly submit that recently when the petitioner denied being the father of the child and

these assumptions, conjectures are completely groundless. His first reaction was to get

agitated and disregard instead of being courteous and happy about becoming a father. He was

doubting instead of welcoming and accepting. this infers that Dhruv is not a fit parent. It is

concerning that who will be taking guarantee for Chandni in future, what if his aggressive

and impulsive actions affect their daughter. He questions her and one day abandons her like

what he did to my client.

We humbly submit that this trail of events again shows he is not suitable and our paramount

consideration should be “welfare of the child13”.

Hence right now and even on a long run respondent is more responsible for asking for

custody. She is also making efforts in bringing the petitioner back and make this marriage

and family work cordially. These attempts show her flexible nature which is best suited for

upbringing of a child.

13 Mohan Kumar Rayana vs Komal Mohan Rayana on 16 January, 2009

 

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PRAYER

In the light of the issues raised, arguments advanced and authorities cited, the counsel for the

respondent humbly prays before this Hon'ble Court to kindly held that

 The Respondent is granted the Restitution of Conjugal Rights.

 The Respondent also seeks for the Interim Maintenance.

And pass any other order that this Honorable Court may deem fit in the interests of justice,

equity and good conscience.

For This Act of Kindness, The Respondents Shall Duty Bound Forever Pray

Sd/- _______________________

Counsel for the Respondents

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MEMORIAL ON BEHALF OF REPONDENTS