Family Law Moot Court Memorial Respondent

FamilyLaw MootCourt Memorial-Respondent
BA.LLB(AllianceUniversity)
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TeamCode:FL-04
1stSURANA&SURANAANDARMYINSTITUTEOFLAWNATION
ALFAMILYLAWMOOTCOURTCOMPETITION202017thJANUA
RY-19thJANUARY2020
BEFORE
THEHON’BLEFAMILYCOURTATPUNJAB
[UnderSections13and25oftheHinduMarriageActandSection6ofHinduMinorityand
GuardianshipAct,1956]
Inthematterof
MRSSIMRAN–PETITIONER VS
MR.RAMAN–RESPONDENT
MEMORIALonbehalfoftheRESPONDENT
MR.RAMAN

TABLEOFCONTENTS
SR. Page
HEADING
No No.
1. II
LISTOFABBREVIATIONS
2. III
INDEXOFAUTHORITIES
3. VI
STATEMENTOFJURISDICTION
4. VII
STATEMENTOF FACTS
5. VIII
STATEMENTOF ISSUES
6. IX
SUMMARYOFARGUMENTS
7. 1
ARGUMENTSADVANCED;
7.1 ISSUE1–Whether Petitionerisentitledfordivorce onthe groundof 1
Cruelty?
7.2 ISSUE2–WhetherPetitionerisentitledforMaintenanceandCustodyof 5
her daughters?
7.3 ISSUE3–WhetherRespondentisentitledforadecreeofRestitution of 11
ConjugalRights?
7.4 ISSUE4–Whetherthe orderoftheUSCourtpassedin favourofRaman 14
regardingthecustodyofdaughtersisenforceableinIndia?
8 20
PRAYER
LISTOFABBREVIATIONS

2
P Page
§ Section
¶ Paragraph
AIR AllIndiaReporter
Art Article
CPC CivilProcedure Code
Defendant/Respondent Mr.Raman
Factsheet StatementofFacts,1stSurana&SuranaAnd
ArmyInstituteofLaw.
H.C HighCourt
Hon'ble Hon’ble
Petitioner Mrs.Simran
SC Supreme Court
SCC SupremeCourtCases
INDEXOFAUTHORITIES

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STATUTES
TheCodeofCivilProcedure 1908
TheHinduAdoptionandMaintenanceAct1956 The
Hindu Marriage Act 1955
TheHinduMinorityandGuardianshipAct1956 The
Indian Evidence Act 1872
BOOKS
FawcettJames,PrivateInternationalLaw(14thEdition,Oxford 2009).
MorrisJ.H.C,TheConflictofLaws(7thEdition,ThomsonReutersLtd.2009).
N.ShawMalcolm, InternationalLaw(8thEdition,Cambridge 2000).
Prof.Kusum,FamilyLawLecturesI(5thEdition,LexisNexis2019).
MalikSurendraandSudeep,SupremeCourtonFamilyandPersonalLaws(Volume1&3, Eastern
Book Company 2016).
LEXICONS
BryanA.Garner,Black'sLawDictionary(StandardEdition)
CASES
AlconElectronicsPvtLtdvCelemS.A[2013]SCC19791. Aviral
Mittal v State&Anr [2009] DLT 627 (Del).
BeenaSSvSunderesan[2016]1.KHC355(Ker).
BijalParagDavevParagDave[1999]AIR237(Bom).

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D.PJoshivStateofMadhyaPradesh[1955]AIR334(SC).
DhanwantiJoshivMadhavUnde [1998] 1. SCC 112.
ElizabethDinshawvArvandM.Dinshaw[1987]1.SCC42.
EvansvEvans[1790]HaggCon35, [1790] 1 ER.
GananathPattanaikvStateofOrissa [2002] 2. SCC 619.
GauravNagpalvSumedhaNagpal [2009] AIR 557 (SC).
GaytriBajajvJitenBhalla[2013]AIR77(SC).
GurbuxSinghvHarminderkaur[2011]AIR114(SC).
HarPyarDeviv.GhanshiamSingh[1992]LR36(Gau).
HarishMansukhLalvHanshaGauriRamShankar,[1981]22.L.R.1223(Guj).
HemRajvUrmilaDevi[1997] 2. CLR 561(P & H).
HolmesvHolmes [1755] Lee 161, [1755]2 ER 283
KamalamAmmavKumarPillai[2009]AIR636(SC).
KedarPandeyvNarainBikramSah [1966]AIR 3.SCR793(SC).
KulwinderDhaliwalvStateofPunjab [2008] 2. ILR 730 (P&H).
MarggaratePulparampilvDr.ChckoPulparampil[1970]1.AIR(Ker).
McKeevMcKee [1987] All, [1987] 1 ER 886.
Mrs.SarawathiPalaniappanvVinodKumarSubbiah[2013]CMA210(Md).
N.GDastanevS.Dastane[1975]AIR1534SC.
ONGCLtdvM/.ModernConstructionandCo.[2013]AIR115 (SC).
PrateekGuptavShilpiGupta[2018]AICLJ42(SC).
RRadhakrishnanvDirectorGeneralofPolice&Ors[2008]AIR578 (SC).
RajanivSubramonian[1990]AIR1.(Ker).
RamChandraSinghvSavitridevi&Ors [2004]AIR216(SC).
S.HanumanthaRaovS.Ramani[199]3.SCC620.

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SarojRanivSudarshanKumarChadha[1984]AIR1562 (SC).
SavitriPandeyvPremChandraPandey[2002]2.SCC73(SC).
Secretary,DepartmentofHome,A.P&OrsvB.ChinnamNaidu [20052.SCC 746.
ShaleenKabravShiwaniKabra [2012] 2. RCR 974 (SC).
Smt.MahtabBegumvAnsarAhmad[1986]2.LJ1096(All).
Smt.Radha@BillovRamDitta [1984] MLJ 392 (P&H).
SomarGhoshvJayaGhosh[2007]AIR1386(SC).
SunitaSinghvRajBahadurSingh&anr.[1993]3.RCR66(Civil).
SuryaVadananvStateofTamilNadu [2015] 5. SCC 450
T.SareethavT.Venkattasubbaiah [1983] AIR 356 (AP).
TheQueenvBoyaLingaandOrs. [1882]5.ILR 268 (Mad).
UnitedIndiaInsuranceCompanyLtd.vRajendraSingh&Ors[2000]AIR116 (SC).
V.BhagatvD.Bhagat[1994]1.SCC 337.
V.RaviChandranvUnionofIndia[2009]AIR261(SC).
Y.NarasimhaRaoAndOrsvY.VenkataLakshmi[1991]2.SCR821(SC).
STATEMENTOFJURISDICTION

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TheRespondenthasapproachedthisHon’bleFamilyCourtofPunjab,underSection7of Family Courts
Act, 1984.1
SUMMARYOFFACTS
1. Raman,aHinduhailsfromasmallvillageinKarnataka.Simran,aHindubornandbrought
upinPunjab.WhilepursuingMBAatDelhiUniversity,bothofthemmetandbecameclose
friends.RamanandSimrandecidedtomarry.Themarriagewassolemnizedaccordingto
1Section7-Jurisdiction-
(1)SubjecttotheotherprovisionsofthisAct,aFamilyCourt shall—
(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under
anylawforthetimebeinginforceinrespectofsuitsandproceedingsofthenatureandproceedingreferredtoin
theexplanation.Explanation-Thesuitsandproceedingsreferredtointhissub-sectionaresuitsandproceedings of the
following nature, namely:—
(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the
marriagetobenullandvoidor,asthecasemaybe,annullingthemarriage)orrestitutionofconjugalrightsor judicial
separation or dissolution of marriage.

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Hindu traditions on 1st January 2005 at a temple in Bangalore. Raman was offered a
promotion in rankattheir head officein USAand hejoined. InJanuary of2010 Raman and
Simran were blessed with their first child named Riya, who became a U.S. citizen by birth.
2. Raman’scompanysufferedalossinrevenueandinordertogainbackhispositionRamangot too
embroiled in his work which did not leave him with much free time outside the office.
Raman began to express his frustrations vocally and physically by assaulting Simran. In
early 2017 Raman and Simran were blessed with their second daughter Prabha.
3. InDec2017,Simranlostherfatherandsheleftforherparents’homeinPunjab.Simrangota visit from
one of her school mates, Suraj and her bonding with him continue to grow.After returning
to US Raman overheard an intimate conversation between Simran and Suraj, this infuriated
him and resulted in him getting abusive and violent with Simran. Next day Simran with her
younger daughter left home and came back to Punjab.
4. Raman filed a complaint in January 2019 at the local Court of NewYork accusing Simran
of removing his daughter from the State boundaries without his consent. The Court passed
an order in his favor. Simran decided to put an end to her marital relationship with Raman.
She filed a petition of divorce in the local Family Court in Punjab on the ground of cruelty
under section 13, Maintenance under section 25 of Hindu Marriage Act 1955 and
custodyofherdaughtersunderHinduMinorityandGuardianshipAct1955.Ramaninreplyfilesfor
Restitution of Conjugal Rights under Section 9 of Hindu MarriageAct 1955.
ISSUESRAISED
ISSUE1–WHETHERPETITIONERISENTITLEDFORDIVORCEONTHEGROUND OF
CRUELTY?

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ISSUE2–WHETHERPETITIONERISENTITLEDFORMAINTENANCEAND CUSTODY
OF HER DAUGHTERS?
ISSUE3–WHETHERRESPONDENTISENTITLEDFORADECREEOF RESTITUTION OF
CONJUGAL RIGHTS?
ISSUE4–WHETHERTHEORDEROFTHEUSCOURTPASSEDINFAVOUROF RAMAN
REGARDING THE CUSTODYOF DAUGHTERS IS ENFORCEABLE IN INDIA?

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SUMMARYOFARGUMENTS
WHETHERPETITIONERISENTITLEDFORDIVORCEONTHEGROUNDOFCRUELTY?
It is submitted before this Hon’ble court that the Petitioner is not entitled for divorce on the
ground of cruelty because she was not subjected to both mental and physical cruelty by
respondent under the provision of Section 13(1) (i-a) of Hindu MarriageAct 1955.
WHETHERPETITIONERISENTITLEDFORMAINTENANCEANDCUSTODYOFHER
DAUGHTERS?
It is submitted before this Hon’ble court that the Petitioner is neither entitled for Maintenance
undersection25ofTheHinduMarriageAct1955norto getthecustodyofherdaughtersasper provision
under Section 6 of Hindu Minority and GuardianshipAct 1956.
WHETHERRESPONDENTISENTITLEDFORADECREEOFRESTITUTIONOFCONJUGALRIGHTS
ItissubmissionofthecounselfortheRespondentthatheisentitledforthedecreeofrestitution of
conjugal rights as per the provisions of Section 9 of The Hindu MarriageAct 1955.
WHETHERTHEORDEROFTHEUSCOURTPASSEDINFAVOUROFRAMANREGARDINGTHE
CUSTODYOFHISDAUGHTERISENFORCEABLEININDIA?
It is submitted before this Hon’ble court that the custody of the younger daughter granted by
thelocalcourtofNewYorkisvalidandbindinguponanyIndiancourtsasitisviolativeofthe principles
of Private International law and also the principle of Res judicata under Section 11 of the Code
of Civil Procedure 1908 will be applicable in this instant case as the New York local court was
a competent authority to decide on the subject matter of the custody of the younger daughter.

ARGUMENTSADVANCED
ISSUE1:WHETHERPETITIONERISENTITILEDFORDIVORCEONTHEGROUNDOF
CRUELTY?
It is humbly submitted to this Hon’ble Court that Marriage is a sacramental union, a holy
union between man and woman and not a contractual union as per Hindu
tradition.AccordingtoManu,husbandandwifeareunitedtoeachothernotmerelyinthislifebuteven
after death, in the other world.2
It is the contention of the counsel for the respondent that as per the Act any marriage
solemnized can be dissolved by a decree of divorce on the ground that the other party has,
after the solemnization of the marriage, treated the petitioner with cruelty.” 3The 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. In V. BhagatvD.Bhagat the Hon’ble SC defined Mental
Crueltyas‘thatconductwhichinflictsupontheotherpartysuchmentalpainandsufferingaswouldma
keitnotpossibleforthatpartiescannotreasonablybeexpectedtolivetogether’. It was further stated
that it
‘Whatiscrueltyinonecasemaynotamounttocrueltyinanothercase.Itismattertobedeterminedineac
hcasehavingregardtothefactsandcircumstancesofthatcase.Ifitisacaseofaccusationandallegatio
n,regardsmustalsobehadtothecontextinwhichtheyweremade’.4Again in
RajanivSubramonian,Court observed that the concept of mental cruelty depends upon the
type of life the parties are accustomed to or their economic, social conditions and their human
values to which they attach importance, judged
2Prof.Kusum,FamilyLawI(5thEdition,LexisNexis 2019).
3Section13(1) (i-a)ofHinduMarriageAct, 1955
4V.BhagatvD.Bhagat[1994]1.SCC337.

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by standard of modern civilization in the background of thetraditions of our society. 5Also,
inEvansvEvans,Courtstatedthat
‘mereausterityoftemper,petulanceofmanners,rudenessoflanguage,wantofcivilattentionandacc
ommodation,evenoccasionalsalliesofpassion,donotamounttolegalcruelty’.6Similarly,
occasional wordy altercations may not amount to mental cruelty. In matrimonial relationship,
parties must be prepared to the normal wear and tear of such life.7
As was held in N.GDastanevS.Dastane, Court stated that the foundation of a sound marriage
is tolerance, adjustments and respecting efforts of one another. 8 Furthermore, in
SomarGhoshvJayaGhosh case, theApex Court laid fourteen illustrative but not exhaustive
guidelines to determine what acts constitutes mental cruelty. The relevant points are (iii),
(viii), (ix) and (x) are as follows;
(iii)‘Merecoldnessorlackofaffectioncannotamounttocruelty,frequentrudenessoflangu
age,petulanceofmanner,indifferenceandneglectmayreachsuchadegreethatitmakesthe
marriedlifefortheotherspouseabsolutelyintolerable.
(viii) Theconductmustbesuchmorethanjealousy,selfishness,possessiveness,whichcaus
esunhappinessanddissatisfactionandemotionalupsetmaynotbeagroundforgrantofdivo
rceonthegroundofmentalcruelty.
(ix) Meretrivialirritation,quarrels,normalwearandtearofthemarriedlifewhichhappens
inday-to-daylifewouldnotbeadequateforgrantofdivorceontheground
ofmentalcruelty.
5RajanivSubramonian[1990]AIR1.(Ker).Seealso,GananathPattanaikvStateofOrissa[2002]2.SCC 619.HolmesvHolmes
[1755] Lee 161, [1755]2 ER 283
6EvansvEvans[1790]Hagg Con35,[1790]1 ER.
7Mrs.SarawathiPalaniappanvVinodKumarSubbiah [2013]CMA210(Md).Seealso,S.HanumanthaRaov
S.Ramani[199] 3.SCC620.
8N.GDastanevS.Dastane [1975]AIR1534 SC.

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(x) Themarriedlifeshouldbereviewedasawholeandafewisolatedinstancesoveraperiodo
fyearswillnotamounttocruelty.Theillconductmustbepersistentforafairlylengthyperiod,
wheretherelationshiphasdeterioratedtoanextentwhatbecauseoftheactsandbehaviourof
spouse,thewrongedpartyfindsitextremelydifficulttolivewiththeotherpartyanylonger,m
ayamounttomentalcruelty.”9
Recently, Punjab and Haryana High Court held that an occasional outburst, use of offensive
language once in a while cannot be termed as cruelty, a ground for dissolution of
marriage.10Therefore, it is contented before this Hon’ble Court that, the acts of our client are
not so serious in nature and it does not constitute mental cruelty as the acts are trivial
irritations in normal wear and tear of the marriage life which happens in day-to-day life. As
our client’s company suffered a loss in revenue due to major depression in economy, this
resulted in him managing multiple projects at the same time which did not leave him with
much free time either outside office or for his family. Moreover, due to lack of sufficient
funds, their palatial home was ultimately repossessed by the bank.Although the Respondent
was frustrated owing to the above said factors and took it out on the Petitioner, she tried her
best to support him by dealing very calmly and positively with him. So, we can see that this
was a normal wear and tear of the married life which happens in day-to-day life as in such a
penurious condition of the Respondent the Petitioner did not leave his side and continued to
work on their relationship. Later the conditions began taking a positive turn in early 2014,
both for the Respondent’s job and their relationship. They were even blessed with another
daughterinearly2017.Also,thesituationofoverhearinghiswifehavinganintimate
9SomarGhoshvJayaGhosh[2007]AIR1386(SC).Seealso,GurbuxSinghvHarminderkaur[2011]AIR114 (SC).
10Srendra Sharma, Spouse’s sporadic outburst, offensive language not cruelty in marriage-HC,
HindustanTimes(06,Oct2019)<https;//www.google.com/amp/m.hindustantimes.com/cites/
Spouse’ssporadicoutburst, offensive language not cruelty in marriage-hc/story.com> accessed on 22 December
2019.

4
conversation with another man acted as a ground for grave and sudden provocation 11 on the
Respondent’s part resulting in him getting abusive and violent with her. Such action on partof
the wife is unendurable in nature for any level-headed husband.
Recently, Gujarat High Court stated that rude and uncultured behaviour and perfunctory
abuses are mundane matters and they are not so serious an offence that could attract charges
of cruelty on the part of the in-laws. 12Hence, it is contented to the Court that the situations
where our client getting frequent taunts regarding the cultural differences from her in-laws,
their infuriated with her due to long hours of absence of her from home for work and giving
flak because of not being able to give a grandson do not amount to cruelty.
The Kerala High Court has emphasised that dissolution of marriage cannot be ordered on
mere asking by petitioner. Utmost care, caution and circumstances should be observed and
pleaded that
‘Strayandinconsequentialallegationsmadeevenifproved,willnotbyitselfcontributetothefactumof
cruelty’.13Moreover, in GauravNagpalvSumedhaNagpal, SC indicated that
‘Effortsshouldbetobringaboutconciliationtobridgethecommunicationgapwhichleadstoundesir
ableproceeding.Theemphasisshouldbeonsavingmarriageandnotbreakingit’.14
In the light of the judgments, it is contented before this Hon’ble Court, to make an effort to
save the marriage through reconciliation and to bridge the communication gap between the
parties which leads to undesirable proceedings as our client desires to reconcile the marriage
and wants to raise their children together.
11TheQueenv.BoyaLingaandOrs.[1882]5.ILR268 (Mad).
12SaeedKhan,Taunting,rudenessbyin-lawsismundane,notcruelty,TimesofIndia(27Nov2015)
<https;//m.timesofindia.com/city/ahmedabad/Taunting,rudenessbyin-lawsismundane,notcruelty-
HC/articleshow/49947704.cms> accessed on 24 December 2019.
13BeenaSSvSunderesan[2016]1.KHC355(Ker).
14GauravNagpalvSumedhaNagpal [2009]AIR557(SC).

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ISSUE2:WHETHERPETITIONERISENTITLEDFORMAINTENANCEANDCUSTO
DYOFHERDAUGHTERS?
CLAIMFORMAINTENANCE
It is humbly submitted that, petitioner is not entitled for maintenance in view of thefollowing-
THEPETITIONERWASHAVINGTABOOEDRELATIONSWITHAPERSON
In KamalamAmmavKumarPillai15, it was observed that in view of strained relations, the wife
cannot claim right of residence in the matrimonial home so as to resist a decree for
possession. On appeal against it by the wife, the Apex Court held that right of residence is
included in the term "maintenance". In the light of the above judgments, in the instant casethe
petitioner was having illicit relations with a person Suraj who was one of her school
classmate. The petitioner spent most of her time in the conversations with Suraj. She endedup
spending a lot more than her usual time making phone calls and web chats with Suraj. 16
Shehadcompletelygivenupanyhopes andchances oflettingRamanbeapartofherandher
children’s life and this in turn strengthened her bond with Suraj to a higher magnitude of
dependency.17
PETITIONERREFUSEDTOLIVEWITHHUSBANDONAFALLACIOUSREASON
In the instant case the petitioner refused to live with the husband basing her decision on a
completely fallacious reason. Itis contended before this Hon’bleCourt that thepetitioner had
lefthomewithoutanyreasonableexcuse.Ithasbeenclaimedthatshewassubjectedto
15KamalamAmmavKumarPillai[2009]AIR636(SC).
16 Page3,¶24,MootProposition,1stSurana&SuranaAndArmyInstituteofLawNationalFamilyLawMoot Court
Competition 2020.
Competition 2020.

6
physical as well as mental cruelty whereas upon comprehension, it is evident that it was
merely ordinary wear and tear of family, and this has to be distinguished from ‘cruelty’.
Our client’s company suffered a loss in revenue and implemented pay cuts across employees
of all ranks. In order to gain back his position our client got too embroiled in his work and
started managing multiple projects at the same time which did not leave him with much free
time outside the office. Soon his time and attention towards family withered away under the
stress of work. There was stress also caused by the looming unpredictability of the US
government’s visa policies.18
The respondent was in stress due to which he was not able to give time to his family. The
frustration of our client was nothing more than an ordinary human reaction and his actions
were never directed towards causing harm to the petitioner. It may also be pertinent to note
here that the fact they were blessed with their second daughter is a testimony in itself that
their marital relations were good.
InSavitriPandeyvPremChandraPandey19theCourtstatedasunder
“Mentalcrueltyistheconductofotherspousewhichcausesmentalsufferingorfeartothemat
rimoniallifeoftheother.Cruelty,however,hastobedistinguishedfromtheordinarywearan
dtearoffamilylife.Itcannotbedecidedonthebasisofthesensitivityofthepetitionerandhasto
beadjudgedonthebasisofthecourseofconductwhichwould,ingeneral,bedangerousforasp
ousetolivewiththeother.”
Further,inBijalParagDavevParagDave20,wherethefamilyCourtdeniedmaintenanceto
Competition 2020.
19SavitriPandeyvPremChandraPandey[2002] 2.SCC73(SC).
20BijalParagDavevParag Dave[1999]AIR237(Bom).

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a wife on the ground of ‘misconduct’ of refusing to join the matrimonial home, the high
Court, on appeal by the wife, held that the reason given by the family is
‘fullyfallaciousandcannotbesustained’.
It is therefore humbly submitted before this Hon’ble Court that the petitioner was not
subjected to any sort of cruelty by the conduct of the respondent. It is well-known that in any
matrimonial litigation there would always be allegations of matrimonial misconduct and if
this were to be made a relevant consideration then in no matrimonial litigation would the
opposing spouse be entitled to maintenance.
THERESPONDENTPLEAFORRESTITUTIONOFCONJUGALRIGHTS
InHarishMansukhLalvHanshaGauriRamShankar,21Courtheldthatadecreeforrestitution
ofconjugalrightsin favour of the husband only grants him a rightto get the
orderofmaintenancecancelled.InHemRajvUrmilaDevi22,thewife'sclaim
formaintenanceisresistedmainlyonthegroundthatthehusbandhasobtainedadecree
forrestitutionofconjugalrightsagainstthewife.TheHighCourtofPunjabandHaryanaheld that a
decree for restitution of conjugal rights obtained by the husband against the wife and the
finding that the wife was living away from the husband without reasonable excuse was
binding on the Criminal Court and that as the decree had become final, her claim for
maintenance underSection 125of the Code of Criminal Procedure was not sustainable. 23The
Allahabad High Court held Under the provision to Sub-Section (2), if he offers to maintainhis
wife on condition of her living with him and she refuses to live with him, the Magistrate may
consider any grounds of refusal stated by her and may make an order under this section
notwithstanding such offer, if he is satisfied that there is just ground for so doing.Thus, from
21HarishMansukhLalvHanshaGauriRamShankar,[1981]22.L.R.1223 (Guj).
22HemRajvUrmilaDevi[1997]2.CLR561(P&H).
23Smt.Radha@BillovRamDitta[1984] MLJ392(P&H).

8
the evidence, if the claim of the husband for restitution had succeeded, it was certainly
binding on the wife and she was not entitled to claim maintenance under Section 125of the
Code of Criminal Procedure.24
It is submitted to the Hon’ble Court that our client has filed for Restitution of ConjugalRights
under sec 9 of Hindu Marriage Act 1955 and is ready to accept the petitioner. He wants to
stay married to petitioner and wants to raise their children together. If a decree for restitution
ofconjugalrights obtained bythehusbandagainst thewife andthe findingthatthe wife was living
away from the husband without reasonable excuse was binding on the
CriminalCourtandthatasthedecreehadbecomefinal,herclaimformaintenanceunderSection 25 of
Hindu MarriageAct, 1955 and 125of the Code of Criminal Procedure is not sustainable.
CLAIMFORCUSTODYOFDAUGHTERS
CUSTODYUNDERTHEHINDUMINORITYANDGUARDIANSHIPACT1956
It is submitted beforethe Hon’bleCourt thatthepetitioner is notentitledtoget the custody of her
daughters as per provision of Hindu Minority and Guardianship Act, 1956. The Act provides
the natural guardians of a Hindu minor. As per the Act the natural guardians of a Hindu
minor in the case of a boy or an unmarried girl is the father, and after him, the mother. 25In
ShaleenKabravShiwaniKabra26the custody of elder son was given to the husband and that of
younger son to the wife. But the Hon’ble Supreme Court of India hasheld that it was not
proper to separate both the brothers who are admittedly close to
eachotherandthecustodyofboththechildrenwasgiventothefatherwithvisitingrighttothe
24Smt.MahtabBegumvAnsarAhmad[1986]2.LJ1096(All). 25Sec 6
The Hindu Minority and Guardianship Act 1956
26ShaleenKabravShiwaniKabra [2012] 2. RCR 974 (SC).

9
motherattheexpensesoffather.
In the light of the above judgment, in the instant case the elder daughter is above 5 years old
and according to this provision the custody of elder daughter must be given to our client andit
would not be good to separate both the daughters as according to the facts the elder daughter
had started staying depressed and was missing her sister. Due to this her academics and
health had started to suffer.27
CUSTODYBYCONSIDERINGTHECITIZENSHIPOFTHECHILD
In PrateekGuptavShilpiGupta28where the father brought his child to India and later on wife’s
petition, the child was ordered by the Delhi High Court to bereturned to the mother in
US.Theapex Courtheld that
‘achildoftenderyearwithmalleableandimpressionablemindanddelicateandvulnerablephysique
wouldsufferseriousset-
backifsubjectedtofrequentandunnecessarytranslocationinitsformativeyears’.
In the light of the above judgment it is humbly submitted before this Hon’ble Court that both
the daughters became a U.S. citizen by birth. The elder daughter has lived only in the US her
entire life and she is accustomed to the social and familial paradigms of the U.S country 29 so
it would be difficult for her to adjust in new surroundings and it would also affect her
academics. So it would be better to give custody of both the daughters to our client.
CUSTODYBYCONSIDERINGTHEWELFAREOFTHECHILD
TheSC held that issue of custody of minorchildisto be decidedfrom the angle of welfare of
27Page3,¶28,MootProposition,1stSurana&SuranaAndArmyInstituteofLawNationalFamilyLawMoot Court
Competition 2020.
28PrateekGuptavShilpiGupta[2018]AICLJ42(SC).
Competition 2020.

10

11
child and not the better rights of parents as welfare of child is ultimate
consideration.30Further, it was held that where in a case husband and wife lived in America
and divorce petition was filed, the wife came to India with both the children and theAmerican
Court granted decree of divorce and custody of the children to husband. But in
viewoffactsandcircumstancesofthecase,thedecreepassedbytheAmericanCourtthrough a
relevant factor, but the same cannot override the consideration of welfare of the minor
children.31
It is submitted before this Hon’ble Court that according to the facts a petitioner ended up
spending a lot more than her usual time making phone calls and web chats with Suraj due to
which daughters ended up bearing the brunt of being ignored by their mother 32 so it wouldnot
be good to give the custody to the mother as it will affect the academics and health of the
daughters. It is brought to the lights from the facts that the elder daughter was able to express
her need for contact and comfort from her father33 which shows that she was more closer and
comfortable with her father as compared to the mother.
In SanjuvSobhanath34 father was given child custody because he has the better financial
condition than the mother. In the light of the above judgment it is humbly submitted before
this Hon’ble Court that, our client being financially strong it wouldbe in the better interest of
the child that he should raise the daughters in his care and custody.
ISSUE3:WHETHERRESPONDENTISENTITLEDFORADECREEOF
30GaytriBajajvJitenBhalla [2013]AIR77(SC).
31SaritaSharmavSushilSharma[2000]2.RCR367(SC).
Competition 2020.
Competition 2020.
34SanjuvSobhanath[1995]AIR 90(All).

12
RESTITUTIONOFCONJUGALRIGHTS
It is submission of the counsel for the respondent that our client is entitled for the decree of
restitution of conjugalrights as per theprovisions of theTheHindu MarriageAct 1955 as the
Petitioner has withdrawnfromthesocietyoftheotherwithoutreasonableexcuse.35
The constitutional validity of this principle was upheld in the case of
SarojRanivSudarshanKumarChadha36, over-ruling the decision in
T.SareethavT.Venkattasubbaiah37.
THATTHEREWASNOREASONABLEEXCUSEONTHEPARTOFTHEPETITIONER
In the case of Smt.RitaPrajapativSanjayKumar38, it has been said that the
term‘reasonableexcuse’has not been defined under The Hindu Marriage Act 1955. This
aspect has to be considered independently from the facts and circumstances of each
case.According to Judge Paripoornan in ThomasvPathrose39, reasonable excuse depends on
the facts and circumstances of each case and that it should be more than a ‘merewhim’.
In the case of HarvinderKaurvHarminderSingh40 it was held that this principle was a remedy
to preserve a marriage, rebuild a broken home and re-establish the relationship between
estranged spouses. This shows the positive aspect of granting such restitution. Further,
inGurdevKaurvSarwanSingh41, thewife’sappeal againstadecreeofrestitutionof
35 Section9ofTheHinduMarriageAct1955.
36 SarojRanivSudarshanKumarChadha[1984]AIR1562 (SC).
37T.SareethavT.Venkattasubbaiah [1983] AIR 356 (AP).
38Smt.RitaPrajapativSanjayKumar[2017]AIR41(Jhar).
39ThomasvPathrose [1988] 2. KLT 237 (Ker).
40HarvinderKaurvHarminderSingh [1984]AIR 66(Del).
41GurdevKaurvSarwanSingh[1959]AIR162(P&H).

13

14
conjugal rights was given in favor of the husband. It was held by the Court that there was
reason to believe that actions were taken by way of a ‘reasonablecause’ and thus conjugal
rights had to be restored.
In the instant case, the Respondent’s neglect towards his family was not intentional in nature.
He was the sole bread-earner of that family. He was really overburdened by his workplace
pressure. According to the facts, Raman’s company suffered loss in revenue due to major
depression in economy, and it implemented pay cuts across employees of all ranks. In orderto
gain back his position, the Respondent took up multiple projects which did not leave him
much free time outside office. His time and attention towards family withered away under
stress of work. The looming unpredictability of US government’ visa policies also added to
the stress. Due to lack of financial funds, the Respondent fell behind on the payments to their
palatial home which was ultimately repossessed by the bank. His overburdened work life
resulted in some dereliction of his responsibilities towards his family. Hence, any sort of bad
behavior arising from such destitute circumstances cannot be deemed as a reasonable excuse
for the Petitioner to withdraw from the society of the Respondent.
THATTHEPETITIONERCANNOTTAKEADVANTAGEOFHEROWNDELIBERATEWRONGS42
It is a settled position of law that the applicants who base their case and acts on fraud 43 ,
misrepresentation and concealing facts44and misguide the Hon’ble Court should notbe given
theprotectionofprocedureestablishedbythelaw.FraudandJusticeneverdwelltogether
42ONGCLtdvM/.ModernConstructionandCo.[2013]AIR115 (SC).
43RRadhakrishnanvDirectorGeneralofPolice&Ors [2008]AIR578 (SC).
44Secretary,DepartmentofHome,A.P&OrsvB.ChinnamNaidu[2005]2.SCC 746.

15
(frausetjusnunquamcohabitant)45and‘misrepresentationitselfamountstofraud’46.
In the instant case, the Petitioner is not an aggrieved person as she herself deserted the
Respondent. To add to the above mentioned point, the Petitioner used to spend a lot morethan
her usual time making phone calls and web chats with Suraj, her classmate due to which the
daughters ended up bearing the brunt of being ignored by their mother. The Petitioner neither
allowed any visitation nor received any response from her end as the Respondent and his
family kept trying to contact. When the Respondent’s parents went all the way to the
Petitioner’s home, she denied them any contact with her or the daughter, Prabha. Moreover,
the elder daughter Riya had become so depressed out of missing Prabha that her academics
and health had started to suffer.
Therefore, the husband, i.e., the Respondent should be allowed for a decree of restitution of
conjugalrightskeepinginviewthebestinterestofthechildrenandgivingasecondchanceto preserve
their marriage and re-establish their relationship.
ISSUE4:WHETHERTHEORDEROFTHEUSCOURTPASSEDINFAVOUROFRAMANR
EGARDINGTHECUSTODYOFHISDAUGHTERISENFORCEABLEININDIA?
It is the humble contention of the counsel for the respondent that the custody of younger
daughter granted by the Local Court of New York is valid under the principles of Private
International Law, and meets the standard as established by previous Supreme Court
precedents.
In the process of proving that the decree handed down by the local Court of New York is
valid, the counsel for the respondent will attempt to prove the following –
45UnitedIndiaInsuranceCompanyLtd.vRajendraSingh&Ors,[2000]AIR116 (SC).
46RamChandraSinghvSavitridevi&Ors [2004]AIR216(SC).

16
TheRespondentandtheyoungerdaughteristhedomiciledresidentoftheStateof New York.
PetitionerremovedthedaughterfromtheSateboundarieswithouttheconsentof Respondent.
THERESPONDENTANDTHEYOUNGERDAUGHTERISTHEDOMICILEDRESIDENTOFT
HESTATEOFNEWYORK.
InthelandmarkjudgmentofYNarshimaRaovVenkataLakshmi,itwasheldthat–
‘Residencedoesnotmeanatemporaryresidenceforthepurposeofobtainingadecreeofthecustody,b
uthabitualresidenceorresidencewhichispermanentandintendedforfutureuse.’47Also, in
KedarPandeyvNarainBikramSah, every child acquires at birth a domicileof origin based on
that of his father if the child is legitimate.48
It is contented to the Court that, our client and her daughter are the habitual residence of the
country as had lived only in US her entire life and accustomed to the social and familial
paradigm of the state.
Furthermore, in the Supreme Court case of D.PJoshivStateofMadhyaPradesh, Court affirmed
the Black Law Dictionary’s definition of domicile, and stated that
‘expressionofdomicilereferstothepermanenthomeoftheindividual’.49Tofurtherstrengthenthearg
ument, in YogeshBhardwajvStateofUttarPradesh it was held that
‘Theconceptofdomicileidentifiesapersonhavingaforeignelement,withaterritorysubjecttosingles
ystemoflaw,whichisregardedashispersonallaw’.InSuryaVadananvStateofTamilNadu,SCobser
ved
47Y.NarasimhaRaoAndOrsvY.VenkataLakshmi[1991]2.SCR821(SC).
48KedarPandeyvNarainBikramSah,[1966]AIR3.SCR793(SC).
49D.PJoshivStateofMadhyaPradesh[1955]AIR334(SC).

17
that it is in accord with the ‘principleofcomity’ as well as the welfare of the child who is
foreign citizen, Court held that it is prima facie if the foreign Court has jurisdiction over the
child whose custody is in dispute, based on the place of the residence of the child in the
territory overwhichthe foreignCourt exercisesjurisdiction.50InAviralMittalvState&Anr.,
Courtheld thatdisputesmatters relating to custody, thelaw oftheplacewhich hastheclosest and
most intimate contact with the well-being and welfare of the offspring , must be govern by
the law of the state.51
Therefore, it is contended before this Hon’ble Court that our client’s younger daughter,
Prabha was natural resident of the state of New York and has intimate contact not limited to
geography but rather has social, psychological and emotional connect with the place of the
residency. Thus, the daughter is governed within the foreign jurisdiction.
PETITIONERREMOVEDTHEDAUGHTERFROMTHESATEBOUNDARIESWITHOUTTHECONS
ENTOFRESPONDENT.
In ElizabethDinshawvArvandM.Dinshaw, Court while dealing with a child removed by one of
the parent from the USAdirected that the child be sent back to USAnot only because of
principle of comity but also on facts which were independently considered it was in the
interest of the child to be sent back to the native State. 52Similarly in the landmark English
judgment, McKeevMcKee Court held that, in the country to which the child is removed, will
send back the child to the country from which the child was removed considering theinterests
of the child.53 Moreover, by following the general principles laid down in McKee case, SC in
DhanwantiJoshivMadhavUnde, clarified the law that the Court in the country
50SuryaVadananvStateofTamilNadu [2015] 5. SCC 450.
51AviralMittalvState&Anr[2009]DLT627(Del).
52ElizabethDinshawvArvandM.Dinshaw [1987]1.SCC42.
53McKeevMcKee[1987]All,[1987]1ER 886.

18
to which the child is removed, will consider the questions on merits, bearing the welfare of
the child as of paramount importance and it shall consider the order of the foreign Court.
Also, Court refer to the Hague Convention of 1980 on
‘CivilAspectsofInternationalChildAbduction’ and said any child below 16 years who has been
‘wrongfully’ removed, the child must be sent back with the merits of the welfare of the
child.54 Therefore, it is contented before this Hon’ble Court that, our client being more
financially strong it would be better interest of the child that he should raise her in his care
and custody.55
Also, the Court involved the principle of ‘realandsubstantialconnection’ to establish the
Court’s jurisdiction to decide custody issue of child who has been removed by a parent
without consent of other spouse. Here Court allowed the child to be moved back out of the
Indian Court’s jurisdiction, as the Court felt that the interests of the child were of paramount
consideration.56In KulwinderDhaliwalvStateofPunjab, the dispute was dealing with inter-
parental custody of the child; SC gave custody of the minor to the father and directed to take
back to the state. `Also held that parent taking the child with his/her out of their country of
residence so as to hamper the other parent’s right to contact amounts child abduction. 57
Furthermore, the Apex Court said that it is duty of Courts of all the country to see that the
parent who has committed wrong by removing the child from his native country does notgain
any advantage from his/her wrong doing and observed that the Court shall return the custody
of child to the country from which the child is removed (his native country) in accordance to
the welfare of the child.58
54DhanwantiJoshivMadhavUnde[1998] 1.SCC112.
55Page23,¶28,MootProposition,1stSurana&SuranaAndArmyInstituteofLawNationalFamilyLaw Moot Court

Competition 2020.
56MarggaratePulparampilvDr.ChckoPulparampil[1970]1.AIR(Ker).
57KulwinderDhaliwalvStateofPunjab[2008]2.ILR730(P&H).
58V.RaviChandranvUnionofIndia[2009]AIR261(SC).

19

20
It is humbly submitted to the Court that, Petitioner had removed the daughter from the state
boundaries without the consent of our client to hamper his right to contact and also shedenied
the visiting rights of respondent’s parents even after repeated attempts and request to meet
their granddaughter. The decree of US Court to Petitioner to return the custody of the
younger daughter to our client is enforceable.
PRINCIPLEOFRES-JUDICATAUNDERSECTION11OFCODEOFCIVILPROCEDURE
1908ISAPPLICABLE
It is the humble contention of the counsel for the respondent that Section 11 of the Code of
Civil Procedure, relating to Res Judicata will apply in this instant case.
The counsel for the respondent wants to bring to the notice of the Court the
‘coreofcommonagreementontheresjudicatadoctrine.Thegeneralideaunderlyingthedoctrineist
hataparticularmatteroncesettledbyajudgment,decree,award,orotherdetermination,mustbere
gardedasfinal;themattercannotbere-
litigatedagainbetweenthepersonsboundbythedecision’.59Today, this general principle is well
established in common law and civil law countries and is sometimes considered inherent to
all legal systems
InalandmarkGuwahatiHighCourtrulingrelatingtosection11oftheCodeofCivilProcedure, in the
case of HarPyarDevivGhanshiamSingh, the Hon’ble Court held that –
‘Concurrentfindingoffactscannotleadtothereopeningofacase,whenafindinghasalreadybecomef
inalinanotherproceeding.’60 In the SC case of SuryaVadananvStateofTamilNadu and others it
was held, in part, by the Hon’ble Court that –
‘IftheforeignCourthasmostintimatecontactandclosestconcernwiththeparties,thatCourtwilldete
rminethematterathand,ratherthanadomesticCourtthatlackssuch
59Schaffstein,’TheDoctrineofResJudicataBeforeInternationalArbitralTribunals’UniversityofGeneva, (2012)
23(3).
60HarPyarDevivGhanshiamSingh [1992]LR36(Gau).

21

22
concernandcontact’61
It is contended by the respondent that the territory of New York is the place where the
respondent and her younger daughtershares the most intimate and closest concern with, as
they both were domiciled in the territory.
Moreover, in the Supreme Court case of AlconElectronicsPvtLtdvCelemS.A it was held that a
foreign award which has become final and conclusive between parties is not impeachable
either on facts or law except on limited grounds under Section 13 of the CPC.62
It is the contention of the counsel for the respondent that section 13 of the Code of Civil
ProcedurescannotbeappliedtothecustodyorderasgrantedbytheNewYorkLocalCourtas it does
not meet any of the exceptions granted under the section; hence the provisions laid down in
AlconElectronicsPvtLtdvCelemS.A can be fully applied in this instant case.
61SuryaVadananvStateofTamilNaduandothers[2014]SCC3634.
62AlconElectronicsPvtLtdvCelemS.A[2013] SCC19791.

23
PRAYER
Wherefore, in the light of facts stated, the cases cited, issues raised, arguments advanced and
authorities cited, it is most humbly prayed and implored before the Hon’ble Family Court at
Punjab, that it may be graciously pleased to adjudge and declare that:
1. Petitionerisnotentitledfordivorceonthegroundofcruelty.
2. Petitionerisnotentitledformaintenanceandcustodyofherdaughters.
3. Respondentisentitledforadecreeofrestitutionofconjugal rights.
4. TheorderoftheUSCourtpassedinfavourofRamanregardingthecustodyofhis daughter is
enforceable in India.
Also, pass any other order that the Court may deem fit in the favour of Respondent to meet
the end so for Equity, Justice and Good conscience.
ForthisactofKindness,theRespondentshalldutyboundforeverpray.
Place:Punjab RespectfullySubmitted,
Dated: Counselforthe Respondent.
(Sd/)…….…………………………..

Family Law Moot Court Memorial Respondent

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7.1 ISSUE1–Whether Petitionerisentitledfordivorce onthe groundof 1

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CPC CivilProcedure Code

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Hindu Marriage Act 1955

Indian Evidence Act 1872

N.ShawMalcolm, InternationalLaw(8thEdition,Cambridge 2000).

Book Company 2016).

Mittal v State&Anr [2009] DLT 627 (Del).

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DhanwantiJoshivMadhavUnde [1998] 1. SCC 112.

EvansvEvans[1790]HaggCon35, [1790] 1 ER.

GananathPattanaikvStateofOrissa [2002] 2. SCC 619.

GauravNagpalvSumedhaNagpal [2009] AIR 557 (SC).

HemRajvUrmilaDevi[1997] 2. CLR 561(P & H).

HolmesvHolmes [1755] Lee 161, [1755]2 ER 283

KedarPandeyvNarainBikramSah [1966]AIR 3.SCR793(SC).

KulwinderDhaliwalvStateofPunjab [2008] 2. ILR 730 (P&H).

McKeevMcKee [1987] All, [1987] 1 ER 886.

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Secretary,DepartmentofHome,A.P&OrsvB.ChinnamNaidu [20052.SCC 746.

ShaleenKabravShiwaniKabra [2012] 2. RCR 974 (SC).

Smt.Radha@BillovRamDitta [1984] MLJ 392 (P&H).

SuryaVadananvStateofTamilNadu [2015] 5. SCC 450

T.SareethavT.Venkattasubbaiah [1983] AIR 356 (AP).

TheQueenvBoyaLingaandOrs. [1882]5.ILR 268 (Mad).

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TheRespondenthasapproachedthisHon’bleFamilyCourtofPunjab,underSection7of Family Courts

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3. InDec2017,Simranlostherfatherandsheleftforherparents’homeinPunjab.Simrangota visit from

younger daughter left home and came back to Punjab.

Restitution of Conjugal Rights under Section 9 of Hindu MarriageAct 1955.

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REGARDING THE CUSTODYOF DAUGHTERS IS ENFORCEABLE IN INDIA?

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undersection25ofTheHinduMarriageAct1955norto getthecustodyofherdaughtersasper provision

under Section 6 of Hindu Minority and GuardianshipAct 1956.

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after death, in the other world.2

keitnotpossibleforthatpartiescannotreasonablybeexpectedtolivetogether’. It was further stated

values to which they attach importance, judged

3Section13(1) (i-a)ofHinduMarriageAct, 1955

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by standard of modern civilization in the background of thetraditions of our society. 5Also,

is tolerance, adjustments and respecting efforts of one another. 8 Furthermore, in

(viii), (ix) and (x) are as follows;

6EvansvEvans[1790]Hagg Con35,[1790]1 ER.

8N.GDastanevS.Dastane [1975]AIR1534 SC.

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language once in a while cannot be termed as cruelty, a ground for dissolution of

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the wife is unendurable in nature for any level-headed husband.

cruelty’.13Moreover, in GauravNagpalvSumedhaNagpal, SC indicated that

and wants to raise their children together.

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In KamalamAmmavKumarPillai15, it was observed that in view of strained relations, the wife

Shehadcompletelygivenupanyhopes andchances oflettingRamanbeapartofherandher

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government’s visa policies.18

their marital relations were good.

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