JAIPUR NATIONAL UNIVERSITY SUBJECT MOOT COURT

IN THE HON’BLE

SUPREME COURT OF INDIA

IN THE MATTER OF:

APPELLANT RESPONDENT

VIJAY SHARMA V. APEKSHA

SHARMA

SUIT FILED BEFORE THE DIVISION BENCH OF SUPREME COURT OF INDIA

MEMORANDUM SUBMITTED ON BEHALF OF THE DEFENDANT

SUBMITTED TO SUBMITTED BY

MS. MANALI RATHORE PRITHVEE RAJ

(ASS. PROFESSOR ) B.A.LL.B (V) SEM.

( SSLG, JNU, JAIPUR) 3 YEAR

 TABLE OF CONTENTS

1. TABLE OF CONTENTS………………………………….…………………………….…1

2. LIST OF ABBREVIATIONS...............................................................................................2

3. INDEX OF AUTHORITIES................................................................................................3

4. STATEMENT OF JURISDICTION.....................................................................................4

5. STATEMENT OF FACTS....................................................................................................5

6. ISSUES RAISED.................................................................................................................7

7. SUMMARY OF ARGUMENTS.........................................................................................8

8. ARGUMENTS ADVANCED.............................................................................................9

9. PRAYER…………………………………………………………………………….…...14

MEMORIAL ON BEHALF OF APPELLANT

 LIST OF ABBREVIATIONS

S. Section

SC Supreme court

SCC Supreme court cases

AIR All India Report

Vol. Volum

No. Number

V. Versus

2
 MEMORIAL ON BEHALF OF APPELLANT

INDEX OF AUTHORITIES

STATUES

1. Hindu Marriage Act, 1955

2. The Constitution of India, 1949

BOOKS

1.Mulla’s Hindu Law, 2018 Edition

CASES

1. Vinita Saxena v. Pankaj Pandit ( 2006 (3) SC 587)

2. Chandrakala Menon vs. Vipin Menon (1993) 2 SCC 6
3. Kanchan Devi vs. Promod Kumar Mittal (1996) 8 SCC 90,
4. Naveen Kohli vs. Neelu Kohli (AIR 2006 SC 1675)
5. Kanchan Devi v. Pramod Kumar Mittal (AIR 1996 SC 3192

WEBSITE REFERRED
● https://www.manupatrafast.com

3
 MEMORIAL ON BEHALF OF APPELLANT

STATEMENT OF JURISDICTION

The appellant has humbly filed a appeal before this Hon'ble supreme court jurisdiction under
Articles 1331 and 134A2 of the Constitution of India.

1 Article 132- (1) An appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court
in the territory of India, whether in a civil, criminal or other proceeding, [if the High Court certifies under article
134A] that the case involves a substantial question of law as to the interpretation of this Constitution.
(3) Where such a certificate is given, any party in the case may appeal to the Supreme Court on the ground that any
such question as aforesaid has been wrongly decided.
2 Article 134A. Every High Court, passing or making a judgment, decree, final order, or sentence,
referred to in clause (1) of article 132 or clause (1) of article 133, or clause (1) of article134,—
(a) may, if it deems fit so to do, on its own motion; and
(b) shall, if an oral application is made, by or on behalf of the party aggrieved, immediately after the passing or
making of such judgment, decree, final order or sentence, determine, as soon as may be after such passing or
making, the question whether a certificate of the nature referred to in clause (1) of article 132, or clause (1) of
article 133 or, as the case may be, sub-clause (c) of clause (1) of article 134, may be given in respect of that case.
 MEMORIAL ON BEHALF OF APPELLANT

STATEMENT OF FACTS

1. Apeksha got married to Vijay Sharma on 20 January 2011 according to Hindu rites and
ceremonies.

2. From the beginning of the marriage itself, there were temperamental differences and clashes
between the spouses.

3. Apeksha did not stay for more than five months in the matrimonial home. She left the
matrimonial home when she was three months pregnant and gave birth to a son in her parental
home.

4. Apeksha gave birth to their son while living in her own parental home. Vijay visited her in
the hospital at the time of birth of their son but she refused to let him see or meet the child and
did not accept the sweets and gifts he brought.

5. After six years of desertion of the matrimonial home by Apeksha, Vijay filed a divorce case
in the family Court seeking divorce on the grounds of desertion, cruelty and irretrievable
breakdown of marriage.He pleaded that his marriage was solemnized at an early age without his
consent at the persuasion of his parents. In reply to the petition, Apeksha stated that Vijay’s
family members had been abusive to her due to cultural differences between her and them. She
was a well-educated girl brought up in a family with modern values; while Vijay’s family was
very conservative. She bore with the abuse for five months and things crossed the limit when his
family members beat her up and Vijay’s brother kicked her in the stomach. It was on that day
that she left her matrimonial home despite being three months pregnant. It is Vijay who was
guilty of desertion and cruelty, and for failure prevent her ill-treatment.

6. The family court held in favour of Apeksha and declined the plea of irretrievable breakdown
of marriage as being absent from the statute.
 5

MEMORIAL ON BEHALF OF APPELLANT

7. Vijay appealed against the family court decision to the Hon’ble High Court pleading the
ground of irretrievable breakdown of marriage and citing the discretion exercised by Court in the
recent years basis relations between husband and wife having reached a breaking point without a
possibility for reconciliation. The High Court upheld the District Court’s order on the reason
that the law relating to the grant of divorce on the ground of irretrievable breakdown of marriage
was not settled.

8. Vijay has now appealed to the Supreme Court with the permission of the High Court.

The case is listed for arguments before the Division Bench of the Supreme Court.
 6

MEMORIAL ON BEHALF OF APPELLANT

ISSUE

I. WHETHER IRRETRIEVABLE BREAKDOWN OF MARRIAGE EXIST AS THE

GROUND OF DIVORCE?

II. WHETHER THE APPLICABLE OF IRRETRIEVABLE BREAKDOWN

THEORY IN INDIA?
 7

MEMORIAL ON BEHALF OF APPELLANT

SUMMARY OF ARGUMENTS

I. WHETHER THE IRRETRIEVABLE BREAKDOWN OF MARRIAGE EXIST AS

GROUND OF DIVORCE?

It is most humbly and respectfully submitted before this court in the present case the Appellant
and the Respondent have lived apart post desertion for a period of over ten years with no
cohabitation, no marital intercourse, no contact. The relationship between the Appellant and the
Respondent is an insult to the term and institution of marriage. In the instant case, no ingredients
of marriage remain or sustain and the relationship has been reduced to an empty shell for over a
decade. In the light of these admitted facts, this is an undeniable case for grant of divorce based
on irretrievable breakdown of the marriage.

II. WHETHER THE APPLICABLE OF IRRETRIEVABLE BREAKDOWN THEORY ?

Divorce based on these theories in Hindu law (i) fault theory, (ii) mutual consent theory, (iii)
breakdown theory.

The Hindu Marriage Act, 1955, originally, based divorce on the fault theory and mutual consent
theory. section 13 deals with fault theory,section 13(1) on which husband/wife could sue for
divorce, and two fault grounds in section 13(2) on which wife alone could seek divorce.

Section 13B of The Hindu Marriage Act, 1955 deals with Divorce by mutual consent.

Irretrievable breakdown of marriage comes under the breakdown theory where the marriage is
supposed to have reached a point wherein there is a complete breakdown of the institution with
no scope for retrieval of that previously existing bond.
 8

MEMORIAL ON BEHALF OF APPELLANT

ARGUMENTS ADVANCED

II. WHETHER THE IRRETRIEVABLE BREAKDOWN OF MARRIAGE EXIST AS

GROUND OF DIVORCE?

It is most humbly and respectfully submitted before this court in the present case the Appellant
and the Respondent have lived apart post desertion for a period of over ten years with no
cohabitation, no marital intercourse, no contact. The relationship between the Appellant and the
Respondent is an insult to the term and institution of marriage. In the instant case, no ingredients
of marriage remain or sustain and the relationship has been reduced to an empty shell for over a
decade. In the light of these admitted facts, this is an undeniable case for grant of divorce based
on irretrievable breakdown of the marriage.

Irretrievable breakdown of marriage comes under the breakdown theory where the marriage is
supposed to have reached a point wherein there is a complete breakdown of the institution with
no scope for retrieval of that previously existing bond. Even though irretrievable breakdown of
marriage has not been explicitly stated under the Hindu Marriage Act, 1955 as a ground for
divorce, there have been many apex court judgments, which are settled law.

In the case of Vinita Saxena v. Pankaj Pandit 3, the marriage between Vinita Saxena and her
husband Pankaj Pandit was dissolved by an order of the Supreme Court. The marriage between
the parties lasted only for five months. Both of them were living separately for over 13 years.
Marriage also was not consummated. Wife filed a petition for the dissolution of marriage on the
ground of physical and mental cruelty and insanity on the part of the husband. The Court held as
follows:

3 (2006)3 SC 587
 MEMORIAL ON BEHALF OF APPELLANT

“As to what constitutes the required mental cruelty for purposes of the said provision, will not
depend upon the numerical count of such incidents or only on the continuous course of such
conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even
once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive
matrimonial home.”

Allowing the appeal of the wife, a division bench of the Supreme Court, the court held that the
orders of the courts below had resulted in grave miscarriage of justice to the wife who had been
constrained into living with a dead relationship for over 13 years and that the fact of the situation
clearly showed that the husband and wife can never ever stay as husband and wife and the wife’s
stay with the respondent husband would be injurious to her health. Accordingly, a decree of
divorce was granted in favour of the wife against the husband.

In the case of Chandrakala Menon vs. Vipin Menon4, the parties had been living separately for
so many years. This Court came to the conclusion that there is no scope of settlement between
them because, according to the observation of this Court, the marriage has irretrievably broken
down and there is no chance of their coming together. This Court granted decree of divorce.

In the case of Kanchan Devi vs. Promod Kumar Mittal 5, the parties were living separately for
more than 10 years and the Court came to the conclusion that the marriage between the parties
had to be irretrievably broken down and there was no possibility of reconciliation and therefore
the Court directed that the marriage between the parties stands dissolved by a decree of divorce.

In the instant case, it is an admitted fact that both the parties have been living separately for the
last 10 years with no cohabitation or consummation or fulfillment of any matrimonial/spousal
duties. It is an admitted fact that the Respondent herself left her matrimonial house.

10

MEMORIAL ON BEHALF OF APPELLANT

4 (1993) 2 SCC 6
5 (1996) 8 SCC 90
It is an admitted fact that even when the Appellant tried to reconcile when he visited the hospital
at the time of birth of their son, the Respondent refused to let him see the child and did not
accept the sweets and presents he took. The Respondent now lives at her parental home with the
son born out of wedlock. Not letting the father have a glimpse of his newborn itself amounts to
cruelty/mental trauma being caused by the Respondent. The Petitioner father is forced to live
apart from his son because of the absurd whims of the Respondent. The appellant is not allowed
to maintain even a normal father-son relationship, which is cruel on the Respondent’s part. After
the effort made by the Appellant at the time of birth of their son to reconcile, no effort has been
made by the Respondent which sets out the

Respondent’s intention of not wanting to stay in this matrimonial tie which is now a
longstanding burden to both the parties. The elements of a matrimonial relationship are clearly
absent and, hence, what is left of this marriage is not a holy matrimony but an empty shell filled
with bitterness and vengeance devoid of all the essential ingredients of a healthy marriage. The
Appellant while filing a divorce petition in the trial court expressed his intention to peacefully
and respectfully part ways with the Respondent. The actions of and averments driven by
vengeance made by the Respondent clearly point out her intention to cause pain and suffering to
the Appellant. There lies no possibility of reconciliation, 10 yearlong separation and legal battle.

the Court will be doing complete justice to the parties between whom marriage ties have
completely broken down and there is no possibility whatsoever of the spouses coming together
again.

11

MEMORIAL ON BEHALF OF APPELLANT

 1. WHETHER THE APPLICABLE OF IRRETRIEVABLE BREAKDOWN
THEORY ?

Divorce based on these theories in Hindu law (i) fault theory, (ii) mutual consent theory, (iii)
breakdown theory.

The Hindu Marriage Act, 1955, originally, based divorce on the fault theory and mutual consent
theory. section 13 deals with fault theory,section 13(1) on which husband/wife could sue for
divorce, and two fault grounds in section 13(2) on which wife alone could seek divorce.

Section 13B of The Hindu Marriage Act, 1955 deals with Divorce by mutual consent.

Irretrievable breakdown of marriage comes under the breakdown theory where the marriage is
supposed to have reached a point wherein there is a complete breakdown of the institution with
no scope for retrieval of that previously existing bond.

The Law Commission in its 71st Report titled “The Hindu Marriage Act, 1955 – Irretrievable
Breakdown of Marriage as a Ground of Divorce” in 1978 examined the issue and recommended
amendments to the Hindu Marriage Act, 1955 to make irretrievable breakdown of marriage a
new ground for granting a decree of divorce.

The 18th Law Commission of India in 2009, reiterated its recommendations, suo motu in its
217th Report titled “Irretrievable Breakdown of Marriage –Another Ground for Divorce”. The
Law Commission of India, once again, recommended that 'Irretrievable Breakdown of Marriage'
should be incorporated as another ground for grant of a decree of divorce under the aforesaid
Acts. The said recommendation is reproduced below:

It is, therefore, suggested that immediate action be taken to introduce an amendment in the
Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 for inclusion of ‘irretrievable
breakdown of marriage’ as another ground for grant of divorce.

12

MEMORIAL ON BEHALF OF APPELLANT

 The amendment may also provide that the court before granting a decree for divorce on the
ground that the marriage has irretrievably broken down should also examine whether adequate
financial arrangements have been made for the parties and children.”

In the case of Naveen Kohli vs. Neelu Kohli6 , the Hon’ble S.C while granting divorce on the
grounds of irretrievable breakdown of marriage, held that “We have been principally impressed
by the consideration that once the marriage has broken down beyond repair, it would be
unrealistic for the law not to take notice of that fact, and it would be harmful to society and
injurious to the interests of the parties. Public interest demands not only that the married status
should, as far as possible, as long as possible, and whenever possible, be maintained, but where a
marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of
that fact.”

In Kanchan Devi v. Pramod Kumar Mittal7, the Hon’ble Supreme Court held “The marriage
between the appellant and the respondent has irretrievably broken down and that there was no
possibility of reconciliation, we in exercise of our powers under Art. 142 of the Constitution of
India hereby directs that the marriage between the appellant and the respondent shall stand
dissolved by a decree of divorce.”

13

MEMORIAL ON BEHALF OF APPELLANT

6 AIR 2006 SC 1675

7 AIR 1996 SC 3192
 PRAYER
Wherefore in the light of the facts stated, issues raised, arguments advanced and authorities cited
it is most humbly and respectfully prayed before this supreme court to be graciously pleased to

● GRANT the decree of divorce to the parties on the ground of irretrievable breakdown of
marriage

● GRANT visitation rights to the Appellant qua his minor son;

● DECIDE maintenance payable by the Appellant to the Respondent;

And pass any other order the Hon’ble Court may deem fit in the interest of justice, equity and
good conscience.

MOST RESPECTFULLY SUBMITTED ON BEHALF OF THE APPELLANT

COUNSELS FOR THE APPELLANT

14

MEMORIAL ON BEHALF OF APPELLANT