IN THE HON’BLE FAMILY COURT OF NEW DELHI,

NEW DELHI

TEAM CODE:-

CIVIL APPEAL: OF 2023

IN THE MATTER OF

MR. UMESH (HUSBAND) …PETITIONER

VERSUS

MS. AARA (WIFE) ...RESPONDENT

WRITTEN SUBMISSION ON BEHALF OF THE APPELLANT/PETITIONER

 BRIEF CONTENT
S. NO. PARTICULARS PAGE NO.
1. List of Abbreviations 4
2. Index of Authorities 5
3. Statement of Jurisdiction 6
4. Statement of Facts 7
5. Summary of Arguments 10
6. Arguments Advanced 11
7. Prayer 14
 LIST OF ABBREVIATIONS
1. AIR All India Reporter
2. SCC Supreme Court Cases
3. v./vs. Versus
4. & And
5. Sd Signed digitally
6. Hon’ble Honourable
7. Sec Section
8. IPC Indian Penal Code
 INDEX OF AUTHORITIES
CASES:
1. Sachindranath Chatterejee vs. Neelam Chatterjee
2. Neelu Kohli vs. Naveen Kohli
3. Shobha Rani vs Madhukar Reddi
4. V Bhagat vs. D Bhagat
5. Dastane vs. Dastane

BOOKS:

1. Indian Penal Code, 1860 by Prof. T. Bhattacharya

2. Family Law by Paras Diwan

WEBSITES:
1. www.indiankanoon.org
2. www.livelaw.in
3. www.barandbench.com
4. www.casemine.com

STATUTES:
1. Constitution of India, 1950
2. Indian Penal Code, 1860
3. Indian Divorce Act, 1869
4. Hindu Marriage Act,1955
 STATEMENT OF JURISDICTION
Before the Hon’ble Family Court of New Delhi, New Delhi has the Jurisdiction to hear the
instant matter under section 13(1) of the Hindu Marriage Act.

Section 13 (1) of the Hindu marriage act reads as: “Divorce. — (1) any marriage solemnized,
whether before or after the commencement of this Act, may, on a petition presented by either the
husband or the wife, be dissolved by a decree of divorce on the ground that the other party—
[(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any
person other than his or her spouse; or]
[(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty.”
 STATEMENT OF FACTS
1. Umesh and Aara got married in January 2015. Both of them were working in Multi-
National Companies at the time of their marriage. Umesh was the CEO of his company at
Delhi and lived in the posh locality. Aara was working as a manager in Mohali. She
however had to leave her job as she had to shift to Delhi with Umesh and his family.
Marriage was performed as per Hindu rites in the presence of their families. In August
2016, Aara got a lucrative job offer which she had to refuse because Umesh was not in
favour of her going out to work during her pregnancy. She was quite unhappy with this
decision of Umesh and felt frustrated. In March 2017, the couple was blessed with a
daughter. Umesh and his family were not very happy with the birth of a girl child named
Aarohi.

2. Umesh was very busy in his work and was unable to give time to his family. He would
stay out of the house for long hours and would also travel out of the city for work. Aara
found him talking secretly no. of times with his secretary on the phone. Kavita is
Umesh’s secretary and was working in Umesh’s Company for a decade and she was
committed to her work. Aara tried to read Kavita and Umesh’s what’s app chat regarding
the meetings organised in the evening. Often when Aara would call on Umesh’s mobile
phone, Kavita would answer. Umesh and Aara had regular fights because of this.

3. Aara started looking for a job as their daughter grew few months old but Umesh insisted
that she should stay at home and look after her daughter. Aara was not happy because of
Umesh’s behaviour and she shared it with her parents on several occasions. But her
parents would ask her to adjust. She lost interest in all the daily activities. She was
constantly looking for Umesh attention but he was very busy with his work as he was
appointed as the Vice President of the National Board of Industries.

4. One evening in June 2021 Umesh had a meeting with his client. Tara had apprehension
that Umesh was going with Kavita and that it was not an official meeting. She kept
waiting for him to come back home and called him several times, he did not answer.
Umesh came back home around 2: 00AM. On his coming back Umesh and Aara had an
ugly fight.

5. Aara got fed up and left the house and took their daughter with her. Her parents were
upset in seeing her condition and tried to console her. After seeing her condition for a
couple of days her parents approached Mr. Navin, a Counsellor whom they consulted
earlier for Aara.
 6. Aara was initially reluctant to share things with Navin who made her comfortable and
made her understand that whatever conversation they have, that would be confidential.
She opened up to Navin about her matrimonial life and her relationship with Umesh. She
told Navin that she was an ambitious and bubbly girl before she got married. Aara visited
Navin’s clinic regularly. With the passage of time, Aara started showing improvement in
her behaviour. There were a lot of instances where Navin would visit Aara at her home
just to check whether she was doing fine. He too started liking spending time with her.

7. Aara’s parents being of a conservative mindset convinced Aara to give another chance to
her marriage and insisted that she should go back to her husband. After much persuasion
from her parents, she decided to go back. Navin went silent on hearing about Aaras
decision of going back to Umesh place.

8. Once she got back, initially things between them were fine. With time Umesh again
started coming back home late. He was very busy. Aara was really upset and shared
everything with Navin. She would talk to Navin quiet often during the day. In the
presence of Umesh, Aara would disconnect the call. On many occasions Umesh secretly
snooped through her phone. He found majority of the calls received and dialed were from
and to Navin. Umesh confronted Aara and she clarified that Navin was just a friend and
on the other hand she blamed Umesh that he was involved with Kavita.

9. In November 2021, Navin was in Delhi to attend a conference so he visited Aara’s house.
Aara felt happy and enjoyed spending time with him. Aara also started going out of the
house for long hours. Navin took good care of her and helped her in overcoming the
problems she was facing in her present life. One day Umesh came home and found Navin
at his house. Aara introduced Navin as her friend to Umesh. Umesh found out from the
talk that Navin visited his house earliar also. His daughter Aarohi told her father “That
tell uncle to go back”.

10. Both Umesh and Aara had a big fight and in a fit of anger Umesh asked Aara to choose
between him and Navin. On keeping quiet, he forcibly threw her out of the house and
said never come back ever. Aara left the house with her daughter. Aara’s parents called
Umesh to amicably settle the matter but he refused point blank. When Navin got to know
that Aara is back at her parents’ house, he offered her to join his hospital as Floor
Manager knowing Aara always wanted to be a financially independent woman.

After coming back to her parent’s house, she got to know about her pregnancy. She immediately
called Umesh to share the good news with him. Umesh denied being the father of the child.
Whereas Aara insisted that Umesh was the father of the child
 SUMMARY OF ARGUMENTS
[1.] Whether the contesting respondent has illicit relationship with Navin?

It is humbly submitted before this Hon’ble Court that contesting respondent has illicit
relationship with Navin (Her Medical Counselor).
[1.1] the 6 day delay for meeting the appellant was unreasonable,
[1.2] child to whom with the respondent was pregnant was not of the appellant,
[1.3] Adultery is a ground for divorce under Sec.13 (1) (i) of Hindu Marriage Act and respondent
committed it.

[2.] Whether the contesting respondent has treated the appellant with cruelty?
It is humbly submitted before the Hon’ble Court that the contesting respondent has treated the
appellant with mental cruelty.
[2.1] respondent has falsely alleged that the family of appellant illtreated her,
[2.2] the scope of cruelty is so vast that it can emerge as per the facts of case.

[4] Whether restitution of conjugal rights and condonation is possible?

It is humbly submitted before the Hon’ble Court that neither condonation nor the restitution of
Conjugal rights can occur in this case.
[4.1] action of respondent isn’t conductive for marital relationship.
[4.2] no matrimonial offence is erased by condonation.
 ARGUMENTS ADVANCED
Issue Raised 1

[1.] Whether the contesting respondent has illicit relationship with Navin?
It is humbly submitted before this Hon’ble Court that contesting respondent has illicit
relationship with Mr. Navin.

[1.1] Child to whom with the respondent was pregnant was not of the appellant,
[1.2] Adultery is a ground for divorce under Sec.13 (1) (i) of Hindu Marriage Act and respondent
committed it.

[1.1] Child to whom with the respondent was pregnant was not of the appellant-
It is humbly submitted before the Hon’ble Court that the child to whom with the contesting
Respondent was pregnant was also not of the appellant as the parties last lived with each other in
Month of October – November, 2021. If we assume that the respondent was pregnant from the
last day appellant lived with Navin, i.e. last of November, then this means she was around
pregnant at the time of leaving Appellant’s House. The assumption that it is the child of
appellant doesn’t seem true.

[1.2] Adultery is a ground for divorce under Sec.13 (1) (I) of Hindu Marriage Act and
Respondent committed it -
According to Sec 3 (1) of the Hindu Marriage Act Divorce.— (1) Any marriage solemnized,
whether before or after the commencement of this Act, may, on a Petition presented by either the
husband or the wife, be dissolved by a decree of divorce on the Ground that the other party—
(I) have, after the solemnization of the marriage, had voluntary sexual intercourse with any
person other than his or her spouse; or]

 Also in case of Sachindranath Chatterejee vs. Neelam Chatterjee the husband leaves
the wife in his hometown so that she can complete her studies and go to another City for
work. He visited twice or thrice a month to meet her. Later he found his wife committing
adultery. Petition for divorce was accepted and a marriage gets dissolved. Hence divorce
should be granted on ground of adultery.

Also Ex –post facto Law is Latin root for out of the aftermath, should apply on respondent as he
commits adultery.

According to this law a person can be charged for any crime committed by him only in
accordance to the law which was in power on the day of committing that crime.
This law was based on Article 20 of Constitution of India.

It was humbly requested before the Hon’ble Court that Respondent should be punished on
ground of Sec. 497 of IPC (as applicable at the time when crime occurred
Section 497 of IPC stats that – Adultery.—Whosoever has sexual intercourse with a person
who is and whom he knows or has reason to believe to be the wife of another man, without the
consent or connivance of that man, such sexual intercourse not amounting to the offence of rape,
is guilty of the offence of adultery, and shall be punished with imprisonment of either description
for a term which may extend to five years, or with fine, or with both. In such case the wife shall
not be punishable as an abettor.

Issue Raised 2

[2] Whether the contesting respondent has treated the appellant with cruelty?
It is humbly submitted before the Hon’ble Court that the contesting respondent has treated the
Appellant with mental cruelty.
[2.1] respondent has falsely alleged that the Appellant ill-treated her.
[2.2] the scope of cruelty is so vast that it can emerge as per the facts of case.

[2.1] Respondent has falsely alleged that the Appellant has ill-treated her –
It is humbly submitted before the Hon’ble Court that the contesting respondent has falsely
alleged that the appellant’s parents ill-treated her , this is cruelty to the appellant and the
appellant should be given divorce on the ground of cruelty as stated in Hindu marriage act sec 13
(1)(is)

According to Sec.13 (1) (ia)

(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a
Petition presented by either the husband or the wife, be dissolved by a decree of divorce on the
ground that the other party—
[(is) has, after the solemnization of the marriage, treated the petitioner with cruelty; or]
It is humbly submitted before the Hon’ble Court that in Neelu Kohli vs. Naveen Kohli2
It was held that intention is not necessary element of cruelty.

Also it is not necessary that the cruelty should be aimed to the petitioner. Even if it is not aimed
to the petitioner but other person, the spouse can go and ask for cruelty because the Ambit of
mental cruelty is so was that almost everything is included in it. If we go through different acts
we find cruelty to be aim to the petitioner but this is for sure that if it hurt it caused to a person to
Whom the petitioner is related, and then it also a case of cruelty to the petitioner and this is laid
down in number of decisions. The absence of intention should not make any difference in the
case, if by ordinary sense in human affair the act complained of could otherwise be regarded as
cruelty. Intention is not necessary element in cruelty. The relief to the party cannot be denied on
the ground that there has been a deliberate or willful ill-treatment.

 In Shobha Rani vs. Madhukar Reddi3 the court held that the absence of intention
should not make any difference in the case, if by ordinary sense in human affair the act
complained of could otherwise be regarded as cruelty. Intention is not necessary element
in cruelty. The relief to the party cannot be denied on the ground that there has been a
deliberate or willful ill-treatment.
[2.2] The scope of cruelty is so vast that it can emerge as per the facts of case –
It is humbly submitted before the Hon’ble Court that in Royal Commission on marriage and
divorce in its report – said “we consider that it is not proper to have a detailed definition but to
allow the concept of cruelty to remain open to such adjustment as it is desirable to make to the
media of judicial decisions so as to Accord with the changing social condition.”

 In V Bhagat vs. D Bhagat the court held that what is cruelty in one case may not amount
to cruelty in another case. If it is better to be determined in each case having regard to the
facts and circumstances of the case. If it is a case of acquisition and allegation, regard
must also be had to the context in which they were made.

 In Shobha Rani vs. Madhukar Reddy -the word cruelty has not been defined in the
Hindu Marriage Act 1955 it has been used in section ( 13 ) (I)(a) of the act in the context
of human conduct of behavior in relation to adversely affecting the other .each case may
be different . We deal with the conduct of human behavior that is no generally similar.
Among the human beings there is no limit to the kind of conduct which may constitutes
cruelty. New types cruelty make crop up in any case depending upon the human
behavior, capacity or incapability to tolerate the conduct compiled of. Such is the
wonderful (sec) realm of cruelty.

Issue Raised 3

[3] Weather Restitution of Conjugal Rights and Condonation is possible?

It is humbly submitted before the Hon’ble Court that neither condonation nor the restitution of
Conjugal Rights can occur in this case.
[3.1] action of respondent isn’t conductive for marital Relationship.
[3.2] no matrimonial offence is erased by condonation.

[3.1] Action of respondent isn’t conductive for marital relationship –

It is humbly submitted before the Hon’ble Court that the respondent lives in an illicit
relationship, also both grounds of rejection for conjugal rights are fulfilled.
The grounds for rejection of restitution of conjugal rights are –if the action of the petitioner isn’t
conductive for marital relationship and if the couple needs to stay separately for the purpose of
employment.

[3.2] No matrimonial offence is erased by condonation-

It is humbly submitted before the Hon’ble Court that condonation is always subject to the
implied condition that the offending spouse will not commit a fresh matrimonial offence, either
of the same verity or of other. “No matrimonial offence is erased by condonation. It is obscured
but not obliterated”.

 Also as stated in Dastane vs. Dastane connotation of a matrimonial offence is not to be

linked with full presidential pardon under Article 72. Which once granted wipes out guilt
beyond the possibility of revival.
Section 32 in The Indian Divorce Act, 1869
Sec. 32. Petition for restitution of conjugal rights.- When either the husband or the wife has
without reasonable excuse, withdrawn from the society of the other, either wife or husband may
apply, by petition to the District Court or the High Court, for restitution of conjugal rights, and
the Court, on being satisfied of the truth of the statements made in such petition, Hand that there
is no legal ground why the application should not be granted, may decree restitution of conjugal
rights accordingly.
 PRAYER

Wherefore, in the light of the issues raised, argument advanced and authorities cited, this
Hon’ble Court may be pleased to:

1. Declare that the contesting respondent has illicit relationship with Navin.

2. The contesting respondent has treated the appellant with cruelty.

3. Restitution of conjugal rights and condonation can’t be possible in this case.

AND/OR

Pass any other order, direction on relief that it deems fit in the interest of justice, Equity
and good conscious. For this act of kindness, the appellant shall duty bound forever
prayed.

Place: New Delhi sd/-

Dated: / / 2021 (Counsel for the Petitioner)