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Moot-court-memorial compress

Methods In Epidemiological Data Analysis (University of Delhi)

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--Memorial On Behalf Of The Appellant--

IN THE HONOURABLE SUPREME COURT OF SCINDHIA

APPEAL PETITION (CIVIL)…797/08

UNDER ARTICLE 133 OF THE CONSTITUTION OF SCINDHIA

Mukesh Bambani
(APPELLANT)

Nita Bambani
(RESPONDENT)

______________________________________________________________________
ON SUBMISSION TO THE HONORBLE SUPREME COURT

MEMORIAL FILED ON BEHALF OF THE APPELLANT

___________________________________________________________________

- ALIGARH MUSLIM UNIVERSITY CENTRE MALAPPURAM-

VITH SEMESTER MOOT COURT

-16BALLB16-

Counsel for the Appellant

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TABLE OF CONTENTS

[A] LIST OF ABBREVIATIONS............................................................................................................................III

[B] INDEX OF AUTHORITIES ............................................................................................................................ IV

I. LIST OF STATUTES/ BILLS ........................................................................................................................... IV

II. LIST OF CASES............................................................................................................................................ IV
III. LIST OF BOOKS REFERRED ......................................................................................................................... IV

[C] STATEMENT OF JURISDICTION ................................................................................................................... V

[D] STATEMENT OF FACTS .............................................................................................................................. VI

[E] ISSUES RAISED ......................................................................................................................................... VII

[F] SUMMARY OF PLEADINGS ...................................................................................................................... VIII

[G] ARGUMENTS ADVANCED ........................................................................................................................... 1

I. THAT THE PRESENT APPEAL IS MAINTAINABLE IN THE HONOURABLE SUPREME COURT OF INDIA...................................... 1
II. ISSUE-II....................................................................................................................................................... 3
THAT THE ACTIONS OF THE RESPONDENT AMOUNT TO MENTAL CRUELTY AND THUS A DECREE OF DIVORCE CAN BE GRANTED
UNDER SECTION 13 (1)(I-A) OF THE HINDU MARRIAGE ACT, 1955 AS PLEADED BY THE APPELLANT ........................................ 3

[H] PRAYER FOR RELIEF .................................................................................................................................... 7

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[A] LIST OF ABBREVIATIONS

S. No. ABBREVIATION EXPANSION

1. v. Versus
2. AIR All India Report
3. SC Supreme Court
4. SC Supreme Court Cases
5. Ors. Others
6. Anr. Another
7. Cal Calcutta

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[B] INDEX OF AUTHORITIES

CONSTITUTION OF INDIA, 1950

I. LIST OF STATUTES/ BILLS

HINDU MARRIAGE ACT, 1955.

INDIAN PENAL CODE, 1860.

The Code of Civil Procedure, 1908

II. LIST OF CASES

S.No. CASES CITATION
1. Jethanand & Sons v State of UP AIR 1961 SC 794
2. Mohan Lal Magan Lal Thakcer v State of Gujarat AIR 1968 SC 733
3. Nathoo Lal v. Durga Prasad AIR 1954 SC 355
4. Bhagat v. Bhagat AIR 1994 SC 710
5. Rajan Ravankar v Shobha AIR 1954 SC 254
6. Shohba Rani v. Madhukar Reddi AIR 1988 SCC 121
7. Meacher v Meacher 1946 P 216
8. Vishwanath Agrawal v Sarla Agrawal AIR 2012 SC 2586
9. Gaurav Nagpal V. Sumedha Nagpal AIR 2009 SC 557

III. LIST OF BOOKS REFERRED

1. Dr. Paras Diwan, Modern Hindu Law (Allahabad Law Agency, 22nd edition).
2. R.K Agarwal, Hindu Law (Central Law Agency, 25th edition).
3. C.K Takwani, Civil Procedure with Limitation Act, 1963 (Eastern Book Company, 8th
edition).
4. Sir Dinshaw Fardunji Mulla, Hindu Law (LexisNexis, 21st edition).
5. M.P Jain, Indian Constitutional Law, (LexisNexis, 8th edition).

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[C] STATEMENT OF JURISDICTION

The Honourable Supreme Court is vested with jurisdiction, to hear the present matter
under Article 133 of the Constitution of India and Section 109 of the code of civil
procedure.
Article 133: Appellate jurisdiction of Supreme Court in appeals from High Courts
in regard to civil matters
(1) An appeal shall lie to the Supreme Court from any judgment, decree or final
order in a civil proceeding of a High Court in the territory of India if the High Court
certifies under Article 134A
(a) that the case involves a substantial question of law of general importance; and
(b) that in the opinion of the High Court the said question needs to be decided by the
Supreme Court
(2) Notwithstanding anything in Article 132, any party appealing to the Supreme
Court under clause (1) may urge as one of the grounds in such appeal that a substantial
question of law as to the interpretation of this Constitution has been wrongly decided.
(3)………”
Section 109: When Appeals lies to the Supreme court
Subject to the provisions in Chapter IV of Part V of the Constitution and such rules as
may, from time to time, be made by the Supreme court regarding appeals from the courts
of India, and to the provisions hereinafter contained, an appeal shall lie to the Supreme
court from any judgement, decree or final order in a civil proceeding of a High Court, if
the High Court Certifies-
(i) that the case involves a substantial question of law of general importance; and
(ii) that in opinion of the High Court the said question needs to be decided by the
Supreme Court.

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[D] STATEMENT OF FACTS

1. The marriage between the Appellant - husband, an Assistant Registrar in the Paschim
Pradesh High Court and the Respondent - wife took place on 25th April 2005 as per the
Hindu tradition.
2. On the 26/04/2005 the disputes arose between the elders of both side which resulted in
abusing and hurling chappals at each other. As a result of which, on 27/04/2005 both
husband and wife separated without consummation of the marriage and started living
separately.
3. On 04/10/2005, the wife lodged a criminal complaint against the husband before the
Women Protection Cell alleging that husband is harassing her for more dowry. She filed
a complaint under Section 498-A of the Indian Penal Code in the Metropolitan
Magistrate Court, Faisalabad and also filed a complaint for the removal from his job in
the Paschim Pradesh High Court.
4. The Family court dismiss the petition of restitution of conjugal Right filed by respondent
(wife) and grant the decree of divorce under Section 13(1)(1-a) of Hindu Marriage Act,
1955.The Family Court also directed the husband to repay Rs 80,000/- given by wife’s
father to him with interest at 8% per anum from the date of the marriage till payment.
5. The Paschim Pradesh High Court allowed the appeal filed by wife(Restitution of
conjugal Right) and also set aside the decree of divorce granted in favour of the husband.
The High Court inter alia observed that the finding of the Family Court that lodging a
complaint with the police against the husband amounts to cruelty perverse because it is
not ground for divorce under the Hindu Marriage Act, 1955.
6. The respondent alleged that since her father was working as 'chowkidar', the appellant’s
family was ill-disposed towards her and they used to taunt her for not bringing enough
dowry.
7. The husband from the impugned judgement of Paschim Pradesh High court filed a
appeal petition in Supreme Court to set aside the petition of Restitution of conjugal Right
and to pass a decree of Divorce under Section 13 (1)(1-a) of Hindu Marriage Act, 1955.

Hence, The Present Appeal Is Before This Honourable Court.

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[E] ISSUES RAISED

I. Whether the present appeal is maintainable in the Honourable Supreme Court

of Scindhia?

II. Whether the actions of the Respondent amount to Mental Cruelty for a decree of
Divorce to be granted under Section 13 (1) (i a) of The Hindu Marriage Act, 1955
as pleaded by the Appellant?

III. Whether the petition for restitution of conjugal Right should have been allowed
by High Court or not?

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[F] SUMMARY OF PLEADINGS

I. THAT THE PRESENT APPEAL IS MAINTAINABLE IN THE

HONOURABLE SUPREME COURT OF INDIA
In the present case, grave injustice was done & does it involve any substantial
Constitutional question of law. Hence, the appellant has grounds to approach this
Honourable court against the decision of the Honourable Paschim Pradesh High Court
under the Article 133 of the Constitution of India and Section 109 of The Code of
Civil Procedure, 1908.

II. THAT THE ACTIONS OF THE RESPONDENT AMOUNT TO MENTAL

CRUELTY AND THUS A DECREE OF DIVORCE CAN BE GRANTED
UNDER SECTION 13 (1) (i a) OF THE HINDU MARRIAGE ACT AS
PLEADED BY THE APPELLANT
The acts of the respondent alleged by the appellant were of such degree of cruelty that
Appellant’s life became miserable and hence marital tie to be an end. Additionally,
those acts were just not ordinary wear and tear of the marriage and must amount to
mental cruelty.

III The petition for restitution of conjugal Right should have been allowed by High
Court or not

The Paschim Pradesh High Court reversed the judgement of Family court and allows the
appeal of wife for restitution of conjugal right and also set aside the decree of divorce granted
in favour of husband. The appellant in the present appeal challenged the petition of restitution
of conjugal right and also to pass a decree of divorce granted under Section 13 (1) (1-a) of
Hindu Marriage Act, 1955 and to decide the matter of fact that false and defamatory
allegation which tarnish the reputation may amount to cruelty.

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[G] ARGUMENTS ADVANCED

I. That the present appeal is maintainable in the Honourable Supreme Court of

India.
1. It is humbly submitted before this Hon’ble court that appeal under Article 133 must be in
accordance of certain conditions that will provide the maintainability to appeal, such
conditions are hereunder;
1. The subject of appeal is a judgment, decree or final order.
2. The High Court grants a certificate for such appeal which is at the discretion of the
High Court that the case is a fit one for decision of the Supreme Court on appeal,
provided, the case involves a ‘substantial question of law’.
When nothing remains to be tried and the rights in dispute between the parties have
already been determined, the order is a final order within the meaning of Article 133 of
the Constitution1. If the decision on an issue puts an end to the proceeding, the order is
undoubtedly a final one2.
The Honourable Supreme Court in a catena of judgements has pointed out that the
appeal from any High Court within territory of India in civil matter is must recognized,
the proper test to determine whether a question of law is substantial or not is whether it
is of general public importance, or whether it directly and substantially affects the rights
of parties, and if so, whether it is either an open question in the sense that it is not finally
settled by the highest court, or is not free from difficulty, or calls for discussion of
alternative views.
2. The Honourable Supreme Court in Nathoo Lal v. Durga Prasad3 observed that “A
question of law which is fairly arguable, or when there is room for differences of opinion
on it, or when the court thinks it necessary to deal with that question at some length and
discuss alternative views, would be regarded as a substantial question of law. But it
would not be if the question is practically covered by the decision of the highest court, or
the general principles to be applied in determining the question are well-settled, and the
only question is that of applying these principles to the particular facts of the case.
3. It is humbly submitted before this Hon’ble court appeals to the supreme court in a civil
matter are governed by the Article 133 & Section 109 of the Code of Civil

1
Jethanand & Sons v State of UP, AIR 1961 SC 794
2
Mohan Lal Magan Lal Thakcer v State of Gujarat AIR 1968 SC 733
3
AIR 1954 SCC 355
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Procedure,1908.In the present appeal filed by this appellant is maintainable with

accordance of these abovementioned law which fulfils all appropriate conditions for the
appeal

4. In the present case, it is humbly submitted before this Hon’ble court that appellant is
facing substantial question of law in which a continuous false allegations which led
towards the legal procedure amounts to cruelty as grounds for divorce and and grave
injustice due to the judgement of the Honourable High Court of Paschim Pradesh to set
aside the decree of divorce.

Hence, it is most humbly requested before this honourable court appellant’s request to
grant appeal and the case to be heard.

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II. ISSUE-II

That the actions of the Respondent amount to Mental Cruelty and thus a Decree of
Divorce can be granted under Section 13 (1)(i-a) of the Hindu Marriage Act, 1955
as pleaded by the Appellant
1. It is humbly submitted to this Honourable Court that Marriage is a sacramental union, a
holy union between man and women and not a contractual union as per Hindu tradition.
It is a union which once tied cannot be untied. According to Manu, husband and wife are
united to each other not merely in this life but even after death, in the other world.4
2. Section 13 of the Hindu Marriage Act 1955 defines the grounds for divorce and Section
13 (1)(i-a) specifically states that:
(1) Any marriage solemnised, whether before or after the commencement of this Act,
may, on a petition presented by either the husband or the wife, be dissolved by a
decree of divorce on the ground that the other party
(i-a) has, after the solemnisation of the marriage, treated the petitioner with
cruelty
3. The term ‘Cruelty’ constitutes both acts of Physical and Mental cruelty. Even though the
act doesn’t define mental cruelty as such, the Apex court has in ample verdicts defined
and established the grounds for mental cruelty.
4. In Bhagat v. Bhagat,5 the Honourable Supreme Court defined Mental Cruelty as "that
conduct which inflicts upon the other party such mental pain and suffering as would
make it not possible for that party to live with the other. In other words, mental cruelty
must be of such a nature that the parties cannot reasonably be expected to live together”.
It was further stated that it “What is cruelty in one case may not amount to cruelty in
another case. It is a matter to be determined in each case having regard to the facts and
circumstances of that case. If it is a case of accusations and allegations, regard must
also be had to the context in which they were made.”

4
Dr. Paras Diwan, Modern Hindu Law (Allahabad Law Agency, 22nd edition).
5
V. Bhagat v. D. Bhagat, AIR 1994 SC 710
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5. As alleged by the appellant, the respondent often lodged a complaint against the husband
and his family for the offence of cruelty given under Section 498-A6 of Indian penal
code, she also lodged a complaint with the Paschim Pradesh High Court for the removal
of appellant (husband) from his job. Such false and defamatory allegation by the
respondent caused the mental cruelty. This was proved in the Family court as she failed
to produce any evidence which proved the charges of harassment & cruelty. The false
and defamatory allegation as well as complain at his work place not only tarnish his
reputation but also caused a severe trauma, such actions of respondent amount to a
degree of cruelty that the Appellant's life became so miserable and hence the marital tie
has to be broken. It is humbly requested in front of this Honourable the Court that it
would be justified in holding such an instance to be grounds sufficient enough to dissolve
a marriage.
6. It is humbly submitted before this Hon’ble court that the Section 13(1) (1-a) doesn’t
directly elucidate the definition of cruelty rather than it is being defined by the courts in
its various judgments. The Supreme Court in a catena of judgments has pointed out that
cruelty is a subject matter of fact and circumstances of the case. The law has no standard
by which to measure the nature and degree of cruel treatment, “the cruelty must be of
such a character as to cause danger to life, limb or health, or as to give rise to a
reasonable apprehension of such a danger though, of course, harm or injury to health,
reputation, the working character or the like would be an important consideration in
determining whether the conduct of the respondent amount to cruelty or not. What was
required was that appellant must prove that the respondent has treated with such cruelty
as to cause a reasonable apprehension in mind of the appellant that it will be harmful &
injurious for the appellant to live with the respondent7”. In the present appeal it is much
evident that the damage to the reputation of appellant,” thus establishing the fact that this
is an act of mental cruelty.
7. The next allegation made by the respondent that she is being the subject to the cruelty by
the appellant & filed a case under Section 498-A of Indian Penal Code against him and
she did not adduce any evidence to prove the said offences, such failure to prove those

6
498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or
the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for
a term which may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this
section, “cruelty” means—
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause
grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person
7
Rajan Ravankar v Shobha, AIR 1995 BOM 366
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charges constitute the false and defamatory allegation caused severe mental cruelty
which is being a ground for the divorce under Section 13(1) (1-a) of Hindu Marriage Act,
1955.It is being held by Supreme Court in Shohba Rani v. Madhukar Reddi8, “where the
conduct of complainant itself may be of bad enough and per se unlawful or illegal. Then
the impact or the injurious effect on the other spouses need not be inquired into or
considered. In such cases, cruelty will be established, if the conduct itself is proved or
admitted.
8. It is humbly submitted before this Hon’ble court in the said appeal, respondent leave the
house of husband just after a day marriage, hence the act of cruelty must not occur
because of separation between them but the Supreme Court in Meacher v Meacher 9,”that
the act of cruelty may occur even after the husband and wife have begun living apart”.
9. In this case, the Paschim Pradesh High Court set aside the decree of divorced which is
passed by the Family Court on the ground that mere complain of respondent does not
amount to cruelty but the Supreme Court in Vishwanath Agrawal v Sarla Agrawal 10 held
that the grounds of cruelty is entirely depended upon the facts and circumstances of the
case and in certain circumstances the post action may amount to the cruelty, thus it is
being cleared that false and defamatory allegation of respondent caused the damage to
his reputation which will constitute a mental cruelty.

In the honourable Supreme Court appellant pleaded that the action of respondent tarnish his
reputation and his false and defamatory allegation led to a long legal battle which causes him
a mental cruelty, hence the decree of divorce must be granted under Section 13(1)(1-a) of
Hindu Marriage Act, 1955. This only highlights that the respondent’s action directly cause
mental cruelty and his action refers that she is not interested in maintaining the esteemed
marital bond. And thus it is a humble request to the court to not support the ill-will of the
respondent and pass the decree of divorce for the well- being of both.

Hence, it is most humbly submitted before this honourable court that the actions of the
respondent considered separately or cumulatively, amount to mental cruelty and hence
divorce can be granted on the same grounds. Thus it is requested to allow the prayer of
the appellant and consider this appeal.

8
AIR 1988 SC 121
9
1946 P 216
10
AIR 2012 SC 2586
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V. ISSUE III - Whether the petition for restitution of conjugal Right should have
been allowed by High Court or not?
10. It is humbly submitted before this Hon’ble against the judgement of Paschim Pradesh
High Court which allowed the petition of restitution of conjugal right of respondent
(wife), by setting aside the order of Family Court but in the present appeal appellant
pleaded before this court to set aside the said order of Paschim Pradesh High Court and
to dismiss the restitution of conjugal right and to pass the decree of divorce under
Section 13(1) (1-a) of Hindu Marriage Act, 1955.

11. It is humbly submitted before this court that the petition for restitution of conjugal right
being dismissed by the Family Court on the ground that she stayed in the husband’s
house for a day ,and the false and defamatory allegation against the husband and his
family under the offence of Section 498-A of Indian Penal Code. The action of
respondent prima facie, that she has mere intention to uphold this marriage.
12. The acts of the respondent are so serious in nature. They constitute to mental cruelty as
defined by the Honourable Court in the Rajeev Rankara judgement (supra). They are t
irritations, normal wear and tear of the marriage life and account to amount to mental
cruelty. One off instances here and there during the course of marriage lead to mental
cruelty. From such instances of event it is evident that wife has not mere intention to the
restitution of conjugal rights even the basic purpose of marriage is cohabitation between
husband and wife, and in that it also being frustrated.
13. In Gaurav Nagpal V. Sumedha Nagpal11, the Honourable Supreme Court indicated that
“Effort should be to bring about conciliation to bridge the communication gap which
leads to such undesirable proceedings. Such facts and circumstances of case must be by
prima facie shows the clear intention to reconcile with either spouse. People rushing to
courts for breaking up of marriage should come as a last resort, and unless it has an
inevitable result, courts should try to bring about conciliation. The emphasis should be
on saving marriage and not breaking it."

11
AIR 2009 SC 557
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[H] PRAYER FOR RELIEF

In the light of the facts stated, issues raised, authorities cited and pleadings advanced, it is
most humbly prayed before this Honourable Court that it may be graciously pleased to:

 Allow the appellant’s plea for the grant of Appeal under Article 133 of the
Constitution of India and 109 of The Code of Civil Procedure 1908.

 Pass the decree of Divorce under Section 13 (1) (i a) of the Hindu Marriage Act, 1955
and Reverse the judgement passed by the Honourable Paschim Pradesh High Court.

 Reject the petition of Restitution of Conjugal Right of Respondent which is

considered by the Paschim Pradesh High Court and reverse the said order.

And pass any other order that it deems fit in the interest of justice and good conscience. All
of which is respectfully submitted.

(Counsel for the Appellant)

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