Maharishi D. Vaidya Roll No.

73

IN THE HON’BLE HIGH COURT

OF
KARNATAKA

KAMINI. .....................................................................................................................APPELLANT

V.

RAJA. .......................................................................................................................RESPONDENT

[MEMORIAL ON BEHALF OF APPELLANT]

 MEMORIAL ON BEHALF OF APPELLANT

TABLE OF CONTENTS

TABLE OF CONTENTS. .......................................................................................................i

INDEX OF ABBREVIATIONS. .............................................................................................iii

INDEX OF AUTHORITIES. ..................................................................................................iv

STATEMENT OF JURISDICTION. ........................................................................................vi

STATEMENT OF FACTS. ...................................................................................................vii

STATEMENT OF ISSUES. ....................................................................................................ix

SUMMARY OF ARGUMENTS. .............................................................................................x

ARGUMENTS ADVANCED. ..................................................................................................1

i
 MEMORIAL ON BEHALF OF APPELLANT

INDEX OF ABBREVIATIONS

1. ¶ PARAGRAPH

2. & AND

3. AIR ALL INDIA REPORTER

4. Anr. ANOTHER

5. Art. ARTICLE

6. Hon’ble HONOURABLE

7. i.e. THAT IS

8. Ors. OTHERS

9. Sec. SECTION

10. SC SUPREME COURT

11. SCC SUPREME COURT CASES

12. UOI UNION OF INDIA

13. V. / Vs. VERSUS

14. D.M.C DIVORCE AND MATRIMONIAL

CASES

15. D. L.T. DELHI LAW TIMES

16. H.L.R HINDU LAW REPORTER

17. All ER ALL ENGLAND LAW REPORTS

iii
 MEMORIAL ON BEHALF OF APPELLANT

INDEX OF AUTHORITIES

CASES

1. Inder Raj Malik v. Sunita Malik, (1986)

2. Smt. Alka Sharma Vs Abhinesh Chandra Sharma {AIR 1991}

3. Vinita Saxena Vs Pankaj Pandit {(2006) 3 SCC 778}

4. Samar Roy Chowdhary v. Sm. Snigdha Roy Chowdhary [2] on 16 September, 1976

iv
 MEMORIAL ON BEHALF OF APPELLANT

STATEMENT OF JURISDICTION

The appellant has approached this Honourable High Court under Section 28 of the Hindu
Marriage Act, 1955 (according to which a direct appeal lies to the High Court from the
Family Court) read with Section 96, Order 41, Rule 1 of the Civil Procedure Code, 1908.
And, we submit to the same.

vi
 MEMORIAL ON BEHALF OF APPELLANT

STATEMENT OF FACTS

BACKGROUND

Kamini, daughter of Yogish and Ambika from Kudala, Karnataka was married to Raja, son of
Ramachandra and Uma from Kurupura, Karnataka on January 2010. It so happened that both
of them graduated from the same college though acquired Engineering Degree in different
courses. While the marriage proposal was made, Kamini expressed her will to pursue higher
studies or take up a job and the same was respected by Raja and his parents. Thus, the
marriage happened with the consent of both the parties.

On the wedding night, Raja did not talk to Kamini, instead took some pills and slept. Even
during the day, he was lost in his own world. Next day, Raja spent the whole time sleeping.
The day after that, when Kamini enquired Raja’s mother about his behaviour, she furiously
told Kamini not to ask many questions. Next day, Raja revealed that he would become
nervous once in a while and on such occasions uses medicines to take rest. For, the next few
days Raja continued to take pills and sleep, while Kamini’s expectation of their first night
was unfulfilled.

On the occasion of Kamini questioning Raja as to why he was unaffectionate towards her, he
broke down and mentioned that he was afraid to make amorous advances to her. Later,
Kamini and Raja visited Dr. Prema, a psychiatrist who suggested remedial measures and
prescribed some medicines, after listening to the medical history of Raja, who was earlier
treated by Dr. Ananth for schizophrenia. Dr. Prema asked them to visit again post three days.
However, during the said three days, even with medication, Raja did not perform his marital
duty to Kamini.

When Kamini enquired Raja’s parents about his previous medication, they flew into a rage
and abused Kamini without any rhyme or reason. Raja, suddenly came on Kamini and beat
her mercilessly, and unmindful of where he was hitting her. Then, all of a sudden, he stopped
beating her and went to the store room, where he consumed Baygon spray. He was rushed to
the hospital by his father. Kamini, inspite of objection from Raja’s parents, packed her things
and returned to her parents’ house. All of this happened in a month’s time.

PROCEEDINGS

On deciding to end the marriage which was arranged and conducted according to the Hindu
Marriage Act, 1955, Kamini issued a legal notice to Raja, for which there was no response

vii
 MEMORIAL ON BEHALF OF APPELLANT

from him. Kamini then filed the petition for divorce against Raja in the Family Court at
Kudala, Karnataka.

Kamini made the following contentions in the trial court:

 There was suppression of the fact of previous chronic mental illness of Raja, and such
mental illness of schizophrenia with suicidal tendency was incurable.
 Raja was impotent and incapable to consummate; thus, the marriage was not
consummated.
 Raja and his parents treated Kamini with mental and physical cruelty.

On the above grounds, Kamini claimed for divorce.

Raja made the following contentions in the trial court:

 Kamini and Raja knew each other during college days and the marriage was done in
the hope that Raja would be able to get over his illness, thus there was no suppression
of fact.
 Kamini and her parents consented to the marriage, upon knowing that Raja was the
sole successor for his parents’ entire wealth.
 Raja denied that his illness was incurable, that he was impotent or that he consumed
poison.
 The petition being filed within one month of marriage was premature.

Dr. Prema was examined to prove impotency and schizophrenia. Records from Dr. Ananth’s
clinic were produced along with evidence to prove the handwriting of late Dr. Ananth. An
application requesting physical examination of Raja to report on impotency and incurability
of mental illness was opposed by Raja, following which the court rejected the application.
The domestic servant who witnessed Raja beating Kamini and consuming Baygon spray was
summoned. Medical evidence to show that Raja was treated for attempting to commit suicide
was produced. After examination in chief of Raja, he did not turn up for being cross
examined, in spite of the court giving him several opportunities. Court treated the evidence as
incomplete and closed the case. The trial court rejected the petition holding that impotency
and incurability of mental illness was not proved by medical evidence and that there was no
sufficient proof of cruelty. After fighting the case for five years, Kamini was now constrained
to file an appeal before the High Court of Karnataka.

viii
 MEMORIAL ON BEHALF OF APPELLANT

STATEMENT OF ISSUES

I.

Whether Section 14 of the Hindu Marriage Act, 1955 is a mandatory provision?

II.

Whether the respondent’s mental disorder of schizophrenia would amount to a ground for
divorce in this case?

III.

Whether the appellant is entitled to divorce on the grounds of mental and physical cruelty?

ix
 MEMORIAL ON BEHALF OF APPELLANT

SUMMARY OF ARGUMENTS

1. WHETHER SECTION 14 OF THE HINDU MARRIAGE ACT, 1955 IS A MANDATORY

PROVISION?

Section 14 of the Hindu Marriage Act, 1955 is a mandatory provision. A division bench of
this very High Curt has held that it is the mandate of the legislature that a Court should
entertain a petition for dissolution of marriage by decree of divorce unless on the date of
presentation of the petition, one year has elapsed since the date of marriage. The proviso to
Section 14 allows entertaining of petitions within one year’s limit, only when it is a case of
“exceptional hardship” to the petitioner or “exceptional depravity” on the part of the
respondent.

2. WHETHER THE RESPONDENT’S MENTAL DISORDER OF SCHIZOPHRENIA WOULD AMOUNT

TO A GROUND FOR DIVORCE IN THIS CASE?

Appellant can be granted divorce on the ground of mental illness of the respondent as per
Section 13(1)(iii) of the Hindu Marriage Act, 1955. Because, the mere branding of a person
as schizophrenic will suffice and the petitioner must prove that the mental illness is
incurable and it is to such an extent that the petitioner cannot be reasonably expected to live
with the respondent. While examining the incurability and extent of mental illness of a
person, the capacity to manage one’s own affairs must be considered. Moreover, the fact of
mental illness of the respondent was not concealed during the marriage proposal.

3. WHETHER THE APPELLANT IS ENTITLED TO DIVORCE ON THE GROUNDS OF MENTAL

AND PHYSICAL CRUELTY?

The appellant is entitled to divorce on the grounds of mental and physical cruelty, as the
appellant.The appellant’s allegation is based on an isolated incident and is not of a continu-
ous nature. With regards to allegations of mental cruelty owing to non-consummation
of marriage, the future possibility of consummation should be considered and such
non-consummation of marriage would amount to mental cruelty only if it extends over a long
period.

x
 MEMORIAL ON BEHALF OF APPELLANT

ARGUMENTS ADVANCED

Inder Raj Malik v. Sunita Malik, (1986)

Judgement given by the Court

In this particular instance, the Delhi High Court had to decide whether a person could be
convicted under both Section 4 of the Dowry Prohibition Act and Section 498A of the
Indian Penal Code. The Court held that an individual can be convicted under both Section
4 of the Dowry Prohibition Act, 1956 and Section 498A of the IPC without facing double
jeopardy. The Court held that Section 498A, IPC, and Section 4 of the Dowry Prohibition
Act are distinct, since, under Section 4 of the Dowry Prohibition Act, mere demand of
dowry is subject to punishment, whereas, in Section 498A, an act of cruelty committed
against a newly wedded woman is punishable. As a result, it is possible to conclude that
a person is subject to prosecution under both Section 4 of the Dowry Prohibition Act
and Section 498A of the Indian Penal Code.

In Smt. Alka Sharma Vs Abhinesh Chandra Sharma {AIR 1991 MADHYA PRADESH 205},
the husband was held entitled for decree of nullity of marriage on the ground
under Section 12 (1)(c) of the Act when it was found that his
consent was obtained by concealing the fact that the wife is suffering
from Schizophrenia.

In Vinita Saxena Vs Pankaj Pandit {(2006) 3 SCC 778}, the husband was found to be
suffering from Schizophrenia. Based on the evidence available in that case, the Supreme
Court held that when it is proved by evidence that the respondent is suffering from
mental disorder, further ground for grant of divorce on the plea of mental sanity or mental
disorder is different than cruelty.

Therefore, it is a case of cruelty not based on acts and commission

of sensible person but those arising from mental disorder. The
Supreme Court eventually affirmed the decree in favour of wife.

It is thus fairly well settled that when the respondent is found to be

suffering from incurable mental disorder viz. Schizophrenia, it may amount to cruelty to the
spouse applying for divorce and at the same time when such serious disease was not informed
to the appellant/husband and it was concealed from him at the time of
obtaining his consent for marriage, it furnishes a cause of action for
declaring the marriage a nullity under Section 12 (1)(c) of the Act.

1
 MEMORIAL ON BEHALF OF APPELLANT

In Samar Roy Chowdhary v. Sm. Snigdha Roy Chowdhary [2] on 16 September, 1976
The court note that in the present Section 12(1)(a) of the Hindu Marriage Act, 1955 curabil-
ity is not mentioned at all. Thus, it is very clear that the question of curability of impotency
is not a relevant consideration for the purpose of the decision under Section 12(1)(a) of the
Hindu Marriage Act, 1955 as amended by the Marriage Laws (Amendment) Act, 1976. It
appears that if it is found that there was no consummation of marriage due to the impotency
of the respondent the petitioner is entitled to a decree of nullity.

2
 MEMORIAL ON BEHALF OF APPELLANT

PRAYER
Wherefore, in light of the issues raised, authorities cited and arguments advanced, the
Hon’ble High Court of Karnataka be pleased to:

Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience.

All of which is most humbly and respectfully submitted.

Counsel on behalf of APPELLANT

Sd/-

14