ROLL NO-3310121082

IN THE HON’BLE HIGH COURT OF ORISSA

CIVIL MISCELLANEOUS APPEALS FILED UNDER

SECTION 19 OF THE FAMILY COURTS ACT

RAHUL …...….APPELLANT

VERSUS

ANJALI ……...RESPONDENT

MEMORANDUM ON BEHALF OF THE APPELLANT

 TABLE OF CONTENTS

LIST OF ABBREVIATION------------------------------------------------------------------------02
INDEX OF AUTHORITIES------------------------------------------------------------------------03
STATEMENT OF JURISDICTION------------------------------------------------------------ 04 - 05
STATEMENT OF FACTS-----------------------------------------------------------------------06 - 09
STATEMENT OF ISSUES-------------------------------------------------------------------------10
SUMMARY OF ARGUMENTS------------------------------------------------------------------11
ARGUMENTS ADVANCED-------------------------------------------------------------------12-20
PRAYER---------------------------------------------------------------------------------------------- 21

MEMORANDUM ON BEHALF OF THE APPELLANT

 LIST OF ABBREVIATION

SL. NO. ABBREVIATION FULL FORM

1 & And
2 AC Appeal Cases
3 AIR All India Reporter
4 Anr. Another
5 Art. Article
6 Const. Constitution
7 FIR First Information Report
8 HC High Court
9 Hon’ble Honorable
10 No. Number
11 Ors. Others
12 Props. Proposition
13 SC Supreme Court
14 SCC Supreme Court Cases
15 Supl. Supplement
16 v. Versus

MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-2

 INDEX OF AUTHORITIES

CASES
SL. NO. CASE NAME CITATION

1 Bipin Chander Laisinghbhai Shah v. Prabhawati [1956] S.C.R

2 Dunn v. Dunn 439 S.W.2d 830

3 Sumitran Rober v. Sophia 2001 (3) LW 649

4 Geeta Jagadish Mangtani v. Jagdish Mangtani 2007 (3) SCC 136

5 Mayadevi v. Jagdish Prasad AIR 2007 SC 1426

6 Naveen Kholi v. Nellu Kohli 2006 (4) SCC 558

7 Shobha Rani v. Madhukar Reddi AIR 1988 SC 121

BOOKS AND COMMENTARIES

THE INDIAN PENAL CODE BY RATAN LAL AND DHIRAJ LAL

STATUTES
THE FAMILY COURT ACT, 1984
HINDU MARRIAGE ACT, 1955
PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005
INDIAN PENAL CODE, 1860

MEMORANDUM ON BEHALF OF THE APPELLANT Pg.3

 STATEMENT OF JURISDICTION

The counsel representing the Appellant humbly submits that this memorandum is in

furtherance of the Civil Miscellaneous Appeal Filed By The Appellant before the Hon’ble

High Court of Orissa under Section 19 of Family Court Act,1984.

Section-19,Appeal:-
(1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code

of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974)

or in any other law, an appeal shall lie from every judgment or order, not being an

interlocutory order, of a Family Court to the High Court both on facts and on law. -(1) Save

as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil

Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974) or in any

other law, an appeal shall lie from every judgment or order, not being an interlocutory order,

of a Family Court to the High Court both on facts and on law."

(2) No appeal shall lie from a decree or order passed by the Family Court with the consent of

the parties 1[or from an order passed under Chapter IX of the Code of Criminal Procedure,

1973 (2 of 1974): Provided that nothing in this sub-section shall apply to any appeal pending

before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure

1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act, 1991].

(3) Every appeal under this section shall be preferred within a period of thirty days from the

date of the judgment or order of a Family Court. 1[(4) The High Court may, of its own

motion or otherwise, call for and examine the record of any proceeding in which the Family

Court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal

Procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to the correctness, legality

MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-4

or propriety of the order, not being an interlocutory order, and, as to the regularity of such

proceeding.] 2[(4) The High Court may, of its own motion or otherwise, call for and examine

the record of any proceeding in which the Family Court situate within its jurisdiction passed

an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) for the

purpose of satisfying itself as to the correctness, legality or propriety of the order, not being

an interlocutory order, and, as to the regularity of such proceeding.]" 2[(5)] Except as

aforesaid, no appeal or revision shall lie to any court from any judgment, order or decree of a

Family Court. 2[(6)] An appeal preferred under sub-section (1) shall be heard by a Bench

consisting of two or more Judges. 3[(6)] An appeal preferred under sub-section (1) shall be

heard by a Bench consisting of two or more Judges."

MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-5

 STATEMENT OF FACTS

For the sake of brevity, the material facts are placed herewith in the chronological order:

Background

1. Rahul was a doctor by profession. After clearing his MD from SCB Medical College

and Hospital, He got into a famous corporate hospital at BBSR as an anaesthesia

specialist. He belonged to a joint family and stayed with his parents and elder brother

Animesh. Animesh was a bank officer and married to Riya. Riya had one girl of 8

years old. Riya was a homemaker. Their house was located at HIG colony, Nayapalli,

Bhubaneswar.

2. After Rahul got a stable job in the hospital, his distant uncle Ramchandra got the

proposal of marriage for Rahul.The girl is Anjali, Daughter of Kashinath and

sulakshana devi of Banki, Cuttack. Kashinath is a retd.govt. servant. He retired as

Joint Secretary to Health Department, Government of Odisha. He has a Son and

Daughter. Son anshuman is an IAS Officer borne in Andra Pradesh cadre and posted

as district collector of Vishakapatnam. Daughter Anjali has done her Master's in

Political Science from Utkal University and was enrolled in M.Phil course of the

University. As the proposal was very good, Rahul and his parents went to the house of

Anjali for further discussion. Both families liked each other. Rahul and Anjali also

liked each other and the matrimonial alliance was finalized.

3. Both got engaged on 3/2/2016 and got married on 3/2/2018 at Mayfair convention

hall located at Bhubaneswar observing rituals, customs, ceremonies as observed as

per the practice of their caste and also as observed the provisions under the Hindu

Marriage Act, (5 of 1955) in presence of their respective parents. Other elders of both

the families attended the marriage and blessed them for a happy conjugal life.

MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-6

 4. They laid a very happy conjugal life. Rahul has established himself as the one of the

topmost Anaesthesia professionals of Odisha with very handsome monthly income

(more than 6 figure salary) meanwhile Anjali has cleared his M.Phil and enrolled for

PhD under Utkal University. They were blessed with a baby girl, Anshika in the year

December 2018.

Fact

But after the birth of their daughter, the relation started to become sour. There was

frequent arguments and fights between Rahul and Anjali. Both the families tried to amicably

settle the issue but was in vein. There was one instance of physical violence too. Rahul had

slapped Anjali once across her face for arguing in high pitch. Frustrated with Rahul, she left

their house with her daughter and took shelter in her parents house. Anshuman flew from

Vishakapatnam and tried to settle the issue between the two but nothing fruitful could

happen. Finally, on 4th December 2020,Anjali filed an FIR in mahila police station, BBSR.

(Ref.145/2020 u/s 498A/323/341/506/34 of IPC r/w S. 4 D.P Act). The FIR named accused

were Rahul, his parents, his brother and brother's wife. Police issued notice to all the accused

u/s 41A of CrPC. Meanwhile Anjali also filed a maintenance suit under sec-125(1) of CrPC.

She also filed an application under Domestic Violence Act, 2005 against Rahul and his

family. She had also filed an application in the family court for Restitution of conjugal rights

against her husband. The evidence was taken in the restitution of conjugal rights already, But

final judgement is not yet pronounced.

Meanwhile, Rahul also filed a divorce petition in the family court for grant of decree of

divorce and dissolution of marriage.

MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-7

The pleading at the family court on the issue of restitution of conjugal rights petition are as

follows.

Pleadings of Anjali-

Appellant Anjali deposed that after marriage she resided within the house hold of Rahul and
fulfilled her matrimonial obligations. After her marriage, on her own accord she had handed
over the gold ornaments, she had received from her parents and relatives during marriage to
her husband. The mother-in- law was not satisfied with the way, the marriage was performed
as well as not satisfied with the gifts she had brought. She was pressurized by the Mother-In-
Law to bring some more gold ornaments and one car. She stated that, her father is a Retd.
Employee and it is not possible on her part to provide any further gifts. But nobody paid any
heed to her. She told Rahul to be reasonable but Rahul did not provide her any support. Rahul
Infact told her to get some gold ornaments because the gifts she had brought were below the
dignity of a famous doctor. The torture continued for quite sometimes and in the year 2020
November, she had left her in-laws house with her baby and took shelter in her parents house.
Seeing her plight Anshuman came and tried to reason out with Rahul. After much persuasion
Rahul agreed to take Anjali back to his house. He had made a written agreement to the effect
that he would keep Anjali in her rightful matrimonial home and both would try to sort out
their issues. Anjali returned to her matrimonial home 23rd Jan 2021.

But the harrasment continued. There was mental torture on her. Rahul's brother and his wife
also taunted for very small issues. Rahul's mother was extremely harsh though Rahul's father
never directly said anything to her but did not support her either. Rahul got addicted to liquor
and smoking. He started to coming to house late. Once Anjali discovered another girl Dr
Swati's letter in Rahul's pant pocket. The contents of letter hinted towards an amorous
relation between Rahul and Swati. When Anjali questioned it Rahul slapped her across the
face. On that day, i.e March 2021 she left her home with her daughter and took shelter in her
parents' house. She filed a FIR u/s 498A of IPC and sec-4 of DP Act. Her brother Anshuman
called DCP Bhubaneswar and requested to take strong legal action. The police acted
promptly and arrested Rahul and sent him to judicial custody. Other accused persons were
served notice u/s 41A of CrPC to co-operate with investigation. Rahul got bailed out in 3
days. Anjali claimed that without any valid cause, Rahul had deserted her and hence she had
cause of action to file case under restitution of conjugal rights.

MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-8

Pleadings of Rahul-

Rahul denied all allegations. He made some counter allegations too. He said Anjali didn't
behaved well with him or his parents. She always pressurized him to leave the joint family
and stay at another place. When he denied, Anjali started behaving rudely with him. She had
threatened herself to commit suicide so that everybody would go to jail. She had once poured
kerosene on her and wanted to light herself into flames. Rahul apprehended that she might do
the same again. Rahul also said that Anjali is glued to mobile phone continuously. She is not
taking care of their child also. There was no demand of dowry ever. She has made false
allegations and got him arrested. They have not had sexual relationship for last 2 years. There
is not an iota of conjugal relationship between the two.

Conciliation efforts were made by the family court but both parties didn't agree for amicable
solution. The court proceeded with the restitution of conjugal rights petition. After going
through evidence, the court allowed the petition and directed Rahul to accept Anjali back to
his home within one month of the decree but Rahul failed to take back to his conjugal society.
Anjali sent a legal notice to Rahul through her advocate to take her back into his conjugal
society. Aggrieved by the order of the family court Rahul filed a miscellaneous appeal in the
Hon'ble High Court of Odisha against the order of the family court.

MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-9

 STATEMENT OF ISSUES

ISSUE 1

WHETHER THE JUDGMENT OF THE FAMILY COURT IS VALID UNDER THE

FACTS AS WELL AS ON THE ASPECTS OF LAW?

ISSUE 2

WHETHER THE APPELLANT HAS DESERTED THE RESPONDENT WITHOUT

ANY VALID EXCUSE OR REASON?

ISSUE 3

WHETHER THE APPELLANT IS ENTITLED TO HAVE DIVORCE OR

DISSOLUTION OF MARRIAGE ON GROUND OF CRUELTY?

MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-10

 SUMMARY OF ARGUMENTS

ISSUE 1:

THE JUDGMENT OF THE FAMILY COURT IS NOT VALID UNDER THE FACTS

AS WELL AS ON THE ASPECTS OF LAW.

It is humbly submitted before this Hon’ble Court that the judgment of the family court is not

valid under the facts as well as on the aspects of law. As the learned Family Court has not

considered the material evidence on record led by the appellant and the impugned

judgment suffers from surmises and conjectures

ISSUE 2

THE APPELLANT HASN’T DESERTED THE RESPONDENT.

It is humbly submitted before this Hon’ble Court that the appellant hasn’t deserted the

respondent. The appellant has always left in side of the respondent and the respondent have

not evidentially proved before the Family Court that appellant has deserted her.

ISSUE 3

THE APPELLANT IS ENTITLED TO HAVE DIVORCE OR DISSOLUTION OF

MARRIAGE ON GROUND OF CRUELTY.

It is humbly submitted before the Hon’ble Court that the appellant is entitled to have divorce

or dissolution of marriage on ground of cruelty. As in the instant case, mental cruelty is the

conduct of the respondent which caused mental suffering or fear to the matrimonial life of the

petitioner. Also the apprehension on the part of the petitioner that it would be harmful or

injurious for the petitioner to live with the respondent cannot be termed as ordinary wear and

tear of married life. It is extremely difficult for any person to live with his wife who threat to

commit suicide and wants to live the joint family.

MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-11

 ARGUMENTS ADVANCED

ISSUE 1:

THE JUDGMENT OF THE FAMILY COURT IS NOT VALID UNDER THE FACTS

AS WELL AS ON THE ASPECTS OF LAW.

The respondent humbly contend that the finding of the Family Court against the is wholly

unsustainable in view of wife for restitution of conjugal rights.It is submitted that the

family court ought to have seen that the wife have constantly targeted the respondent and

his family making false claim of torturing her ,inciting respondent to leave his family and

even threating him to commit suicide if he didn’t listen her words. Such incidents have

made him difficult to cope in his matrimonial life and made him a drunkard man inorder

to suppress his emotional imbalance. Further the lack of care of a mother towards her

child have deeply distorted the heart of the respondent who have grown up in a joint

family, seen deep love and affection within a bonded family. The matrimonial bond have

become so fragile and liable to be a irretrievable marriage as the marriage has been

wrecked beyond the hope of salvage and there is no chance of coming together therefore

the Court should have open the deadlock of wedlock.

Appellant would also further contend that even after conciliation getting in vain the

Hon’ble Family Court gave order for restitution of conjugal rights and after that the

appellant persuaded and have reached the wife for the restitution of conjugal rights but

failed due to her non-cooperation in carrying out the same. Such noncooperation was

being done knowingly by the respondent inorder to harass and trouble the appellant which

have been traced and evidentially proved before the Family Court in the previous

proceeding. Therefore the appellant submits that the Family Court judgment is not valid

as per the fact as well as on the aspects of law.

MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-12

ISSUE 2

THE APPELLANT HASN’T DESERTED THE RESPONDENT.

It is humbly submitted before this Hon’ble Court that the appellant hasn’t deserted the

respondent. The appellant has always left in side of the respondent and the respondent have

not evidentially proved before the Family Court that appellant has deserted her.

For the ground of desertion, the legal burden is upon spouse to establish by convincing

evidence beyond any reasonable doubt that the respondent intentionally forsook and

abandoned him or her without reasonable cause. It must also prove that there was desertion

throughout the statutory period and there was no bona fide attempt on the appellant part to

return to the matrimonial home and that the appellant did not by his or her action by word or

conduct provide a just cause to the other spouse to desist from, however, on the facts it is

clear that the conduct of the appellant doesn’t show of deserting the wife.

An offer to return to the matrimonial home after sometime, though desertion had started, if

genuine and sincere and represented his or her true feelings and intention, would bring to an

end the desertion because thereafter the animus deserendi would be' lacking, though the

factum of separation might continue; but on the other hand, if the offer was not sincere and

there was in reality no intention to return, the mere fact that letters were written expressing

such an intention would not interrupt the desertion from continuing. Bipin Chander

Laisinghbhai Shah v. Prabhawati, [1956] S.C.R.

The question as to what precisely constitutes "desertion" is perfectly described in the case

of Bipin Chander v. Prabhawati ,in this case there is an elaborate consideration of the

several English decisions in which the question of the ingredients of desertion were

considered and the following summary of the law in Halsbury's Laws of England (3rd Edn.),

Vol. 12, was cited with approval :

_______________
1. Bipin Chander Laisinghbhai Shah v. Prabhawati, [1956] S.C.R

MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-13

 In its essence desertion means the intentional permanent forsaking and

abandonment of one spouse by the other without that other's consent, and

without reasonable cause. It is a total repudiation of the obligations of marriage.

In view of the large variety of circumstances and of modes of life involved, the

Court has discouraged attempts at defining desertion, there being no general

principle applicable to all cases. The position was thus further explained by this

Court:

"If a spouse abandon the other spouse in a state of temporary passion, for

example, anger or disgust, without intending permanently to cease cohabitation,

it will not amount to desertion. For the offence of desertion, so far as the

deserting spouse is concerned, two essential conditions must be there, (1) the

factum of separation, and (2) the intention to bring cohabitation

permanently to an end (animus deserendi). Similarly two elements are

essential so far as the deserted spouse is concerned: (1) the absence of consent

and (2) absence of conduct giving reasonable cause to the spouse leaving the

matrimonial home to form the necessary intention aforesaid........”

Desertion is a matter of inference to be drawn from the facts 'and circumstances of each case.

The inference may be drawn from certain facts which may not in another case be capable of

leading to the same inference ; that is to say, the facts have to be viewed as to the purpose

which is revealed by those acts or by conduct and expression of intention, both anterior and

subsequent to the actual acts of separation.

Two more matters which have a bearing on the points in dispute in this appeal might also be

mentioned. The first relates to the burden of proof in these cases, and this is a point to which

appellant have already made a passing reference. It is settled law that the burden of proving

desertion-the "factum" as well as the "animus deserenai is on the respondent, and she has to

establish beyond reasonable doubt, to the satisfaction of the Court the desertion throughout

the entire period. In other words, even if the appellant, where he is the deserting spouse, does

MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-14

not prove just cause for he living apart, the wife has still to satisfy the Court that the desertion

was there without reason.

The appellant want to rely on another case of Dunn v. Dunn. In this case the Justice

Denning, L. observed that-

"The burden he (Counsel for the husband) said was on her to prove just cause

(for living apart). The argument contains a fallacy which has been put forward

from time to time in many branches of the law. The fallacy lies in a failure to'

distinguish between a legal burden of proof laid down by law and a provisional

burden raised by the state of the evidence. The legal burden throughout this case

is on the husband, as petitioner, to prove that his wife deserted him without

cause. To discharge that burden, he relies on the fact that he asked her to join

him and she refused. That is a fact from which the court may infer that she

deserted him without cause, but it is not bound to do so. Once he proves that

fact of refusal, she may seek to rebut the inference of desertion by proving that

she had just cause for her refusal; and indeed, it is usually wise for her to do so,

but there is no legal burden on her to do so. Even if she does not affirmatively

prove just cause, the court has still, at the end of the case, to ask itself: Is the

legal burden discharged?”

__________________

2. Dunn v. Dunn 439 S.W.2d 830

MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-15

ISSUE 3

THE APPELLANT IS ENTITLED TO HAVE DIVORCE OR DISSOLUTION OF

MARRIAGE ON GROUND OF CRUELTY.

It is respectfully submitted before this Hon’ble Court that by the husband that the wife caused

mental torture to the appellant by often threatening him that she will commit suicide if he

don’t get separate from the joint family, thereby disturbing the harmony in the family.

Appellant would fairly submit that the appellant has provided all freedom and facilities to the

wife and never even restrain her freedom even belonging to a joint family. But the respondent

has every time created nuisance within the family, with that also lagging in proper care to our

child and registering false FIR . It clearly shows that she never had the intention to live with

the appellant/husband and to defeat the divorce petition filed on account of cruelty, she has

filed the petition for restitution of conjugal rights, maintenance and many other case against

the appellant.

Therefore the appellant vehemently argues that the order of divorce need to be granted by the

Hon’ble Court has to be made on the ground of irretrievable breakdown of marriage. To

substantiate this stand that the respondent/wife has caused cruelty to the appellant/husband,

the appellant has relied upon the following decisions in cases of Sumitran Rober v. Sophia,

2001 (3) LW 649, Geeta Jagadish Mangtani v. Jagdish Mangtani 2007 (3) SCC 136 and

Mayadevi v. Jagdish Prasad AIR 2007 SC 1426.

_______________
3. Sumitran Rober v. Sophia, 2001 (3) LW 649

4. Geeta Jagadish Mangtani v. Jagdish Mangtani 2007 (3) SCC 136

5. Mayadevi v. Jagdish Prasad AIR 2007 SC 1426

MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-16

And also in the case of Naveen Kholi v. Nellu Kohli, 2006 (4) SCC 558, the court observed

that in view of the fact that the parties have been living separately for more than 10 years and

a very large number of aforementioned criminal and civil proceedings have been initiated by

the respondent against the appellant and some proceedings have been initiated by the

appellant against the respondent, the matrimonial bond between the parties is beyond repair.

A marriage between the parties is only in name. The marriage has been wrecked beyond the

hope of salvage, public interest and interest of all concerned lies in the recognition of the fact

and to declare defunct de jure what is already defunct de facto. To keep the sham is obviously

conducive to immorality and potentially more prejudicial to the public interest than a

dissolution of the marriage bond.

The expression cruelty has not been defined in the Act. Cruelty can be physical or mental.

Cruelty which is a ground for dissolution of marriage may be defined as wilful and

unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or

mental, or as to give rise to a reasonable apprehension of such a danger. The question of

mental cruelty has to be considered in the light of the norms of marital ties of the particular

society to which the parties belong, their social values, status, environment in which they

live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a

matrimonial wrong. Cruelty need not be physical. If from the conduct of the spouse same is

established and/or an inference can be legitimately drawn that the treatment of the spouse is

such that it causes an apprehension in the mind of the other spouse, about his or her mental

welfare then this conduct amounts to cruelty.

_____________
6. Naveen Kholi v. Nellu Kohli, 2006 (4) SCC 558

MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-17

In a delicate human relationship like matrimony, one has to see the probabilities of the case.

The concept, proof beyond the shadow of doubt, is to be applied to criminal trials and not to

civil matters and certainly not to matters of such delicate personal relationship as those of

husband and wife. Therefore, one has to see what are the probabilities in a case and legal

cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the

complainant spouse because of the acts or omissions of the other. Cruelty may be physical or

corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but

in the case of mental cruelty there may not at the same time be direct evidence. In cases

where there is no direct evidence, courts are required to probe into the mental process and

mental effect of incidents that are brought out in evidence. It is in this view that one has to

consider the evidence in matrimonial disputes.

The expression cruelty has been used in relation to human conduct or human behaviour. It is

the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a

course or conduct of one, which is adversely affecting the other. The cruelty may be mental

or physical, intentional or unintentional. If it is physical, the court will have no problem in

determining it. It is a question of fact and degree. If it is mental, the problem presents

difficulties. First, the enquiry must begin as to the nature of cruel treatment, second the

impact of such treatment in the mind of the spouse, whether it caused reasonable

apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a

matter of inference to be drawn by taking into account the nature of the conduct and its effect

on the complaining spouse. However, there may be a case where the conduct complained of

itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the

other spouse need not be enquired into or considered. In such cases, the cruelty will be

established if the conduct itself is proved or admitted. (Shobha Rani v. Madhukar Reddi)

___________
7. Shobha Rani v. Madhukar Reddi AIR 1988 SC 121

MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-18

To constitute cruelty, the conduct complained of should be grave and weighty so as to

come to the conclusion that the petitioner spouse cannot be reasonably expected to live

with the other spouse. It must be something more serious than ordinary wear and tear of

married life. The conduct, taking into consideration the circumstances and background

has to be examined to reach the conclusion whether the conduct complained of amounts

to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the

background of several factors such as social status of parties, their education, physical

and mental conditions, customs and traditions. It is difficult to lay down a precise

definition or to give exhaustive description of the circumstances, which would constitute

cruelty. It must be of the type as to satisfy the conscience of the court that the relationship

between the parties had deteriorated to such an extent due to the conduct of the other

spouse that it would be impossible for them to live together without mental agony, torture

or distress, to entitle the complaining spouse to secure divorce. Physical violence is not

absolutely essential to constitute cruelty and a consistent course of conduct inflicting

immeasurable mental agony and torture may well constitute cruelty within the meaning

of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using

filthy and abusive language leading to constant disturbance of mental peace of the other

party.

The court dealing with the petition for divorce on the ground of cruelty has to bear in

mind that the problems before it are those of human beings and the psychological changes

in a spouses conduct have to be borne in mind before disposing of the petition for

divorce. However insignificant or trifling, such conduct may cause pain in the mind of

another. But before the conduct can be called cruelty, it must touch a certain pitch of

severity. It is for the court to weigh the gravity. It has to be seen whether the conduct was

MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-19

such that no reasonable person would tolerate it. It has to be considered whether the

complainant should be called upon to endure as a part of normal human life. Every

matrimonial conduct, which may cause annoyance to the other, may not amount to

cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day

married life, may also not amount to cruelty. Cruelty in matrimonial life may be of

unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere

silence, violent or non-violent.

The foundation of a sound marriage is tolerance, adjustment and respecting one another.

Tolerance to each others fault to a certain bearable extent has to be inherent in every

marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to

destroy what is said to have been made in heaven. All quarrels must be weighed from that

point of view in determining what constitutes cruelty in each particular case and as noted

above, always keeping in view the physical and mental conditions of the parties, their

character and social status. A too technical and hypersensitive approach would be

counterproductive to the institution of marriage. The courts do not have to deal with ideal

husbands and ideal wives. It has to deal with a particular man and woman before it. The

ideal couple or a mere ideal one will probably have no occasion to go to matrimonial

court.

Therefore the appellant submits that the instant case deems fit to the arguments made in

support of cruelty, can be sole ground in order to entitle the appellant for divorce or

dissolution of marriage.

MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-20

 PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, this

Hon’ble Court may graciously be pleased to adjudge and declare :

1. To set-aside the order of restitution of marriage passed by the Family Court.

2. To pass an order of divorce or dissolution of marriage on ground of cruelty towards
husband.

AND / OR

Any other just and equitable order as it deems fit in the interest of equity, justice and
good conscience.

All of which is most humbly and respectfully submitted.

PLACE – CUTTACK S/d_____________________________

DATE-6/12/2022
COUNSEL FOR THE APPELLANT

MEMORANDUM ON BEHALF OF THE APPELLANT Pg.-21