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TABLE OF CONTENTS

Index of Authorities..............................................................................................................................................3

STATEMENT OF JURISDICTION..................................................................................................................6

STATEMENT OF FACTS..................................................................................................................................7

STATEMENT OF ISSUES..................................................................................................................................9

SUMMARY OF ARGUMENTS.......................................................................................................................10

ARGUMENTS ADVANCED............................................................................................................................11

PRAYER FOR RELIEF....................................................................................................................................23

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Table of Abbreviation

W – Wife (petitioner)

B – Wife’s brother

b – Deceased’s brother

INDEX OF AUTHORITIES

CASES

State Of West Bengal & Ors. Etc vs Sampat Lal & Ors. Etc on 4 December, 1984 ........................................................

State Of Gujarat vs Dharmistaben Narendrasinh Rana on 17 June, 2000 ....................................................................

15

Sukhdarshan Kumar And Ors. vs State of Rajasthan on 3 August, 2001 .......................................................................

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G. Nageshwar Rao vs Director General of Police, ... on 30 June, 1997 ..........................................................................

Rajiv Narula vs State on 11 August, 2009 ....................................................................................................................

14

Sr. Sephy vs Union Of India on 1 January, 2009......................................................................................................... 17

Ramesh Chander vs State Of Haryana on 9 December, 1994 ......................................................................................

State Of Gujarat vs Dharmisthaben Narendrasinh Rana on 17 June

2000….....................................................................................................................................................................................................9, 15

Rajeshbhai@ Rajubhai @ Bav ... vs State of Gujarat on 7 October, 2022 ................................................................... 11

Sharada W/O Babaugouda Patil vs The State of Karnataka on 19 July,

2022.......................................................................................................................................................................... 14

Tapati Paul vs The State of Jharkhand on 27 April,

2018.......................................................................................................................................................................... 16

STATUTES

Section 302 of IPC,1860

Section 306 of IPC,1860

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Section 120B of IPC ,1860

Section 174 of CRPC, 1973

OTHER AUTHORITIES

https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688&orderno=127

https://www.lawctopus.com/
https://indiankanoon.org/

https://www.law.gmu.edu/

https://services.ecourts.gov.in/

https://www.scconline.com/

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STATEMENT OF JURISDICTION

The Hon’ble Court has jurisdiction to try the instant matter under Section 302 read with Section 120B of Indian

penal code, 1860.

Section 302 IPC

Punishment for murder. Whoever commits murder shall be punished with death or 1 [imprisonment for life], and
shall also be liable to fine.
Section 120B IPC

Punishment of criminal conspiracy. Whoever is a party to a criminal conspiracy other than a criminal conspiracy to
commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not
exceeding six months, or with fine or with both.

STATEMENT OF FACTS

Background

There was a husband and wife who were strained from their marriage and were residing in separate rooms in the

same house (statement given by deceased’s brother)

On 21. 04. 1997, deceased went to Ambala Cantt. and told B that he would go to his Panchkula residence and will

come back with his luggage as he was very much fed up and frightened.

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Circumstances leading to the current scenario

On 01.05. 1997 he has committed suicide. He was hanging by the neck and his feet were touching the floor, blood

was collected near the body and the foul smell was coming in the second floor of the house.

When the suicide was committed the appellant and her children were on the first floor.

Current Scenario

Now FIR was registered on the basis of complaint made by brother of the deceased and inquest report was prepared
by ASI, site sketch was prepared, Photographs were taken by P (PW-11), dead body was sent for post mortem.
Thereafter, investigating officer recorded the statement of witnesses, visited the crime spot.

STATEMENT OF CHARGES

Charge 1 appellate was charge sheeted for the offence under section 302 IPC

Charge 2 appellants brother was charged with section 302 read with 120B of IPC.

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STATEMENT OF ISSUES

I.

WHETHER THE PETITIONER IS ENTITLED TO A DECREE OF PUNISHMENT?

II.

WHETHER IT IS A MURDER OR SUICIDE?

III.

WHETHER W AND B ARE GUILTY UNDER SECTION 302 OF IPC?

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SUMMARY OF ARGUMENTS

I. THE PETITIONER IS NOT ENTITLED TO A DECREE OF PUNISHMENT.

It is humbly submitted that the grounds provided under section 302 of IPC are satisfied for the Petitioner

to seek for a decree of punishment.

II. THE RESPONDENT IS ENTITLED TO A DECREE OF RESTITUTION OF CONJUGAL

RIGHTS.

It is humbly submitted before the Learned Court that the Respondent is entitled to a decree of restitution of

conjugal rights as provided under Section 9 of the Hindu Marriage Act, 1955, wherein, the Petitioner has

withdrawn from the society of the Respondent without any reasonable excuse, and there is no legal ground

disentitling the Respondent from seeking a matrimonial relief.

III. THE RESPONDENT IS ENTITLED TO THE CUSTODY OF THE CHILD

It is humbly submitted before the Learned Court consideration and welfare of the child lies with the

respondent that the Respondent is entitled the custody of the child considering child’s welfare is of

paramount.

ARGUMENTS ADVANCED

I. THE PETITIONER IS NOT ENTITLED TO A DECREE OF DIVORCE.

It is humbly submitted, that the grounds provided under section 13(1) of Hindu Marriage Act 1955 [“HMA”]

are not satisfied for the Petitioner to seek for a decree of divorce. Section 13(1) provides that any marriage,

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solemnized under the HMA, can be dissolved by a decree of divorce if any of the following grounds are

satisfied by his or her spouse:

A. Conversion to another religion.

B. Unsoundness of mind or when one of the parties is suffering from a venereal disease.

C. Desertion for a continuous period of not less than two years.

D. Inflicted after the solemnization of marriage.1

Any of these grounds must be satisfied for a decree of divorce to be granted.2

A. Conversion to another religion and unsoundness of mind, are grounds that are not satisfied.

It is submitted that when a person ceases to be a Hindu and voluntarily converts to another religion, the

other party can file for divorce under these grounds.3

The Petitioner got married to the Respondent under the Hindu Marriage Act 1955 according to Hindu rituals.

There is no information about her conversion to another religion. Therefore, this ground has not been

satisfied.4 It is humbly submitted that unsoundness of mind cannot be the sole ground for granting divorce.

The treatment meted out to the petitioner must be of such a degree that makes it unreasonable for the party to

cohabit with them. 5

In the instant case, there were some arguments between the couple, however, they are not indicative of any

mental illness of the respondent that has made it unreasonable for the petitioner to cohabit with her. They had

been residing together for 15 years and there have been no concerns of unsoundness of either party.

Therefore, the ground of unsoundness of mind is not satisfied as well.

1 The Hindu Marriage Act 1955 Section 13.

2 Id.
3 Rasna v. Arun, 1996 SCC MP 724(India).
4 Proposition para 3.
5 T. Jagedeeswari v. Anand, 2016 SCC OnLine Mad 32714 : AIR 2017(India).

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B. Desertion as a ground for granting divorce has not been satisfied.

It is humbly submitted that the Petitioner is not entitled to a divorce under the ground of desertion. Section

13(1)(i-b) of HMA elaborates the ground of desertion for divorce. It is the intentional and permanent

abandonment of one spouse by the other without consent and reasonable cause. 6 It also includes total

repudiation of marital duties and obligations.7

The Hon’ble Supreme Court in Bipin Chandra v. Prabhavati has construed the requirement for the provision

that the conditions necessary to be proved for the ground of desertion are-

a. Intention to animus deserendi i.e., the intention to bring cohabitation to an end and no intention to return

and factum of separation.8

b. Absence of consent, reasonable cause and the respondent from their conduct must express their

intention to discontinue cohabitation;8

The burden of proof of satisfying (a) lies on the Petitioner whereas the (b) must be proved by the
Respondent.9

a. Absence of animus deserendi

It is humbly submitted that the Petitioner cannot file for a Divorce under the ground animus deserendi as the

element of factum of separation has not been satisfied.

It is submitted that physical desertion is merely insufficient to prove desertion. The intention to desert and

put cohabitation to an end is also essential.11

In the instant case, the Respondent went to the U.S after the birth of her child but there was clearly no
intention

6 Hindu Marriage Act 1955 Section 13(1) (i-b).

7 Savitri Pandey v. Prem Chandra Pandey, AIR 2002 SC 59(India).
8
1956 SCC AIR 1957(India).
8 Id.
11
9 KUMUD DESAI: INDIAN LAW OF MARRIAGE AND DIVORCE, CHAPTER 7(India)
Sunil Gupta v. Kunti Gupta,AIR 2003 Jhar 42(India).

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to abandon her marital relationship. She used to call the Petitioner when she observed a slight change in his

behavior.10 She even returned back to India to check on her husband and her child.11

It is further humbly submitted that; a petition of divorce can only be granted when ones of the spouses

expressly intend to bring cohabitation to an end.12

In Vegi Jagadesh v. V. Radhika, where the wife left her husband to pursue her studies to become a doctor

was construed to be desertion by her husband, it was held that her mere desire to work cannot be assumed as

desertion as this does not give the implication that she wanted to end any marital obligation. 15

Clearly there was no intention to put cohabitation to an end. The Respondent used all means possible to

check on her spouse as well as the child.

Hence, there is no animus deserendi by the Respondent.

10 Proposition para 17.

11 Clarification 2.
12 Lachman Uttam Chand Kirpalani v. Meena alias Muta AIR 1964 SC 40: 1964 (4) SCR 331(India).
15
2016 SCC Raj 5794.

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b. Absence of factum of separation

It is humbly submitted that the factum of separation is when a spouse leaves the matrimonial home. 13

Abandonment by one spouse of the matrimonial home in a situation that is a result of temporary passion,

disgust or fit of anger, does not amount to desertion. 14 There must be a physical desertion for a period of not

less than two years.15

In the instant case, the Respondent left to the U.S after the birth of her child in 2014 but returned in 2015,

therefore not satisfying the two-year statutory period of desertion. There was also no intention to

permanently put co-habitation to an end because the Respondent continued to call her spouse and returned

when she observed a slight change in behavior.

Therefore, the Respondent has not deserted her spouse.16

C. Cruelty as a ground for granting divorce has not been satisfied

It is humbly submitted that the Petitioner is not entitled for a divorce on the grounds of cruelty. Under

Section 13(i)(a) of the Hindu Marriage Act 1955, cruelty is a ground that must be satisfied for granting

divorce.17 It gives reasonable apprehension of such a danger that it will be difficult to live with the other

spouse, and it can be of two types- physical and mental cruelty.18

a. Physical Cruelty is absent.

It is submitted that there is no physical cruelty that has been meted out to the Petitioner by the Respondent.

Physical cruelty is a voluntary and willful conduct of such character which endangers the life, limb or health,

13 Milligan v. Milligan, [1968] P. 189.

14 Dr. Paras Diwan: Law of Marriage and divorce, chapter 7, 7th edition.
15 The Hindu Marriage Act, 1955 Section 13 (i)(b).
16 Proposition para 14 and Clarification 2.
17 Hindu Marriage Act 1955, Section 13(i)(a).
18 N.G Dastane v. S Dastane(1975)2 SCC 326.

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so as to make it unreasonable for the Petitioner to continue cohabitation. 19 Further, to establish cruelty it is

essential that the conduct must be ‘grave and weighty’.20 Arguments and quarrels are common in a

matrimonial

19 Russell v. Russell, 1921 SCC US SC: 255 US 138.

20 Gollins v. Gollins, 1964 SCC A.C 644.

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relationship and they do not amount to cruelty that endangers the person physically.21

In the instance case there is no evidence of any form of behavior, action or conduct of the Respondent that

endangers the life, limb or health of the Petitioner. Hence, divorce cannot be granted on the grounds of

cruelty specifically physical cruelty.

b. Absence of Mental cruelty.

It is submitted that the Petitioner cannot be entitled to divorce on the grounds of mental cruelty.

While determining mental cruelty, the environment, status and background must be kept in mind. 22 In V.

Bhagat v. D Bhagat, it was held that that the mental agony, inflicted upon the party, must be so severe that it

becomes extremely difficult for the parties to co-habit. 23 It must be conducted to an extent that it becomes

very over-bearing on the individual to continue the relationship.24

The Supreme Court has held that quarrels and isolated arguments are a part of the natural wear and tear of

marriage and this may not be equated to mental cruelty.25 Mere trivial irritations, quarrels between the

spouses, every annoyance caused by one spouse the other, petty quibbles, and trifling differences do not

amount to matrimonial cruelty, because tolerance to each other’s faults to a certain bearable extent and

adjustment has to be inherent in every marriage.26

Additionally, only neglect and lack of affection towards family does not constitute cruelty. 27 Often, situations

may be of such nature that it may result in petty quarrels and do not qualify as cruelty.28

21 Kalyan Dey v. Rita Dey, 2017 14 SCC 200: 2017 440.

22 Neelu Kohli v. Naveen Kohli, AIR 2004 All 1, II (2004) DMC 223.
23 V. Bhagat v. D. Bhagat, 1994 SCC (1) 337.
24 Gollins v. Gollins, 1964 SCC A.C 644.
25 Gurubux Singh v. Harminder Kaur,(2010) 14 Supreme Court 301(2012).
26 Mayadevi v. Jagdish Prasad, (2007) 3 SCC 136 (India).
27 Mulla Hindu Law, 23rd edition.
28 J. L. Nanda v. Veena Nanda,1988 Supp SCC 112: 1988 PLJR 43:AIR 1988 SC 407.
32
Proposition para 5 and 6.

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In the instant case, the couple quarreled at certain occasions. The Respondent found it challenging to balance

both school and household commitments.32 here were some disagreements with wanting a child but they

eventually did arrive at consensus.29 There was some emotional tension after Respondent returned from the

US.30 But these are isolated incidents because there is no common reason for them to have entered into these

arguments. And these arguments are natural in a marriage. The quarrels and disagreements between the

couple are natural in a marriage and they are not as severe to sever the matrimonial bond between the couple.

Therefore, there the Portioner is not entitled to a decree of divorce under the grounds of cruelty.

II. RESPONDENT IS ENTITLED FOR A DECREE OF RESTITUTION OF CONJUGAL RIGHTS

It is humbly submitted that the Respondent is entitled to a decree of restitution of Conjugal Rights [“RCR”]

and seeks to establish that [A] the Petitioner has withdrawn from the society of the Respondent without any

reasonable excuse, and [B] there is no legal ground disentitling the Respondent from seeking a matrimonial

relief as given under section 9 of HMA, 1955,31

“When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the

other aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the

court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground

why the application should not be granted, may decree restitution of conjugal rights accordingly.”

29 Proposition para 9 and 11.

30 Proposition para 18.
31 Hindu Marriage Act, 1955 S9.

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A. The Petitioner has withdrawn from the society of the Respondent without any reasonable excuse

Etymologically, the word ‘restitution’32 means restoring to a party on the modifications, variation or

reversal of a decree what has been lost to it in execution of the decree or in direct consequence of the decree. 33

While the term ‘conjugal’34 means marital or matrimonial. Hence, the expression ‘restitution of conjugal

rights’ means restoration of those marital rights of a party which were lost to it. The basic principle behind the

right to RCR is that one spouse is entitled to the society and comfort-consortium of the other under the

matrimonial

law.35 This is known as marital two-in-oneship36, wherein the husband and wife have both, a right and a

duty.41 The counsel humbly submits that the explanation stated under Section 9 of the Hindu Marriage Act,

1955, provides that the burden of proof for the existence of a reasonable excuse from withdrawing from the

Respondent’s society, is on the Petitioner. Such excuse must be just grave and weighty or grave and

convincing cause.37 Where there is no such reason, the court would grant restitution.3839

a. Sandeep has violated the marital obligations

Marriage may be defined as a ‘status’ arising between a man and a woman on the fulfilment of certain

formalities, which may be religious or secular in character or partly the one and partly the other giving rise to

rights, duties and obligations and which status can be terminated only in accordance with the provisions of

the law.44

32 BLACK’S LAW DICTIONARY 1315 (7th ed. 2016).

33 Zafar Khan v. Board of Revenue, 1984 Supp SCC 505 (India).
34 Supra note 85, at 304.
35 JOHN S. JAMES, STROUD’S JUDICIAL DICTIONARY 518 (5th ed. 1986).
36 DR PARAS DIWAN: LAW OF MARRIAGE AND DIVORCE, 7TH ED [CHAPTER V RESTITUTION OF CONJUGAL RIGHTS]
41
Ela Dasu v. Ela Lachaman, (1990) 2 HLR 249 (Ori) (India); Sushil Kumar v. Prem Kumar, AIR 1976 Del 321 (India).
37 K. Kanthimathi v. S. Parmeshwara Iyer, AIR 1974 Ker 124 (India); Shyamlal v. Saraswati, 1967 MP 204; Satya v. Ajaib, 1973 Raj
20 (India).
38 Kakani Sujatha v. Kakani Lakshmaiah, (2004) 2 HLR 505 (AP DB) (India).
39 JILI (1991) 319 Hindu Marriage as A Samskara: A Resolvable Conundrum.

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The expression ‘withdrawal from the society” means cessation of cohabitation, which should be the voluntary

act of the party.40 In withdrawal from the society of the other spouse, it is considered to be a withdrawal from

the totality of a conjugal relationship, such as refusal to live together, refusal to have marital intercourse, and

refusal to give comfort and company to the other spouse.46

It is submitted that the Petitioner has violated several of these marital obligations that come from a valid

marriage. The Respondent in the instant case, has been facing complete lack of interest, comfort and attention

from her husband.41 The Petitioner also started to ignore the Respondent’s calls and messages, even when he

knew that his wife resides in a different country and might need something urgently. That is when the

Respondent deduced something to be wrong and she returned to India.42

40 Dr Paras Diwan: Law of Marriage and Divorce, 7th ed [Chapter V RESTITUTION OF CONJUGAL RIGHTS]
46
Idem.
41 Proposition Para 17.
42 Idem.

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2021 b. The Petitioner has been living with another woman in the matrimonial home.

The Petitioner has been living with Priya, the surrogate mother of his child, and the Respondent was not even

aware about this. Priya, even when she has no right to, has been living in the matrimonial home with the

Petitioner and his family. Upon returning, when the Respondent found out about this, she felt immensely

betrayed and had to suffer emotionally and mentally.

With the emotional dependence of the Petitioner on the Respondent fading away,4344 it is clear that Sandeep

intends to abandon Anjali indefinitely. This belief of Anjali is further consolidated when Sandeep files for

divorce.

Hence, it is humbly stated that the Petitioner has withdrawn from the Respondent’s society without any

reasonable or grave excuse.

B. No legal ground disentitling the Respondent from seeking the matrimonial relief

It is humbly stated that in Harvinder Kaur v. Harmender Singh,50 it was upheld that right to RCR is not in

derogation of Art. 14 and Art. 21 of the Constitution of India. Rohtagi J. stated that,

“the object of the restitution of conjugal rights is to bring about cohabitation between the estranged parties,

i.e., so that they can live together in the matrimonial home in amity.”

Further, it must be noted that RCR is the only positive relief under the HMA, 1955.45

Section 9(1) of Hindu Marriage Act, 1955 deals with the provision of filing of a petition for restitution and

granting a decree. There are three essential elements considering which the court shall pass the decree for

restitution of conjugal rights, (a) The parties are not co-habiting, (b) No reasonable excuse for withdrawal by

43 Proposition Para 17.

44 Del 66 (India); Saroj Rani v. Sudarshan, 1984 SC 1562 (India).
45 B. M. GANDHI, HINDU LAW 293 (4th ed. 2016).

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the Petitioner, (c) The party aggrieved by such separation must approach the court for the RCR (here, the

Respondent). 46

In Sushila Bai v. Prem Narayan 2021 47, the husband virtually dumped his wife in her father’s house and

thereafter was totally unresponsive, cold and indifferent towards her. These acts and conducts were sufficient

to show that the husband had withdrawn from the society of the wife, and therefore the wife’s petition for

restitution of conjugal rights was allowed.

a. The parties are not co-habiting

It is submitted that Mr. Sandeep has been residing in New Delhi, India while his wife, Mrs. Anjali is staying

in the USA due to her work commitments. The parties are not just living together physically but it is inferred

that the Petitioner is also unavailable to the Respondent sexually and emotionally which are his marital

obligations.4849

b. No reasonable excuse for the Petitioner to withdraw

It is humbly submitted that The Law Commission of India in its 71 st report stated that the essence of

marriage is the sharing of common life, the sharing of all the happiness and the miseries that life has to offer,

an experience of the joy that comes from enjoying the common things of the matter. 55 It is humbly submitted

that, just because a spouse does not like the other is not a reasonable excuse to withdraw from the company 50.

The Respondent in the instant case, on no occasion has caused any kind of mental or physical cruelty to the

Petitioner and hence, has given no reasonable excuse for the Petitioner to withdraw from the society of the
46 Sushila Bai v. Prem Narayan, AIR 1964 MP 225.
47 AIR 1986 MP 225 [LNIND 1985 MP 232]: (1986) 1 HLR 530: 1986 MPLJ 225.
48 Dr Paras Diwan: Law of Marriage and Divorce, 7th ed [Chapter V RESTITUTION OF CONJUGAL RIGHTS].
49 JILI (2011) 663 Privacy and Data Protection in India: A Critical Assessment.
50 Anna Saheb v. Tarabai, AIR 1970 MP 36 [LNIND 1968 MP 19]: 1969 MPLJ 361 [LNIND 1968 MP 19]: 1969 Jab LJ 188.
57
AIR 1988 SC 407 (India).

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former. According to the Respondent, there have been no issues in the marriage of the parties. Some

disagreements and arguments are normal between a married couple but it does not make it a reasonable

enough ground for the Petitioner to withdraw from her society. It was observed by the Hon’ble Supreme

Court in J. L. Nanda v. Veena Nanda,57 sometimes the non-conducive temperaments of the parties towards

each other may result in petty quarrels and troubles.

It is submitted that the Respondent believes the alleged romantic relationship between the Petitioner and Priya 51

is not a reasonable ground for the Petitioner to withdraw from the society of the 2021 Respondent.

Further, the decree of RCR does not violate the fundamental rights of an individual as alleged by the

Petitioner. In Harminder Kaur v. Harvinder Singh5253, the Delhi High Court held that though sexual relations

constitute most important attribute of the concept of marriage but they do not constitute its whole content.

Sexual intercourse is one of elements that goes to make up the marriage but it is not summum bonum. 60 This

was further upheld by the Hon’ble Supreme Court in Saroj Rani v. Sudarshan Kumar Chadha54, wherein the

section 9 of HMA, 1955 was declared constitutional. This right is within the right to marry and does not

violate the right to privacy.

c. Respondent is the aggrieved party

It is humbly submitted that either by mutuality or even at the instance of the husband, a wife might obtain

gainful employment away from the matrimonial home. Merely from this to infer that thereafter the said

condition must necessarily continue or a permanent right accrues to the wife to live away from the

matrimonial home on the ground of employment elsewhere does not hold ground.55

51 Proposition Para 16.

52 AIR 1984 Del 66 [LNIND 1983 DEL 328]: 1984 Mat LR 1: ILR (1984) 1 Del 546 : 1984 Raj LR 187.
53 JILI (2011) 663 Privacy and Data Protection in India: A Critical Assessment.
54 AIR 1984 SC 1562 [LNIND 1984 SC 200]: (1984) 4 SCC 90 [LNIND 1984 SC 200]: 1984 Marri LJ 499.
55 Kusum. “WIFE'S EMPLOYMENT OR HUSBAND'S CONJUGAL RIGHTS: WHO HAS THE SAY?” Journal of the Indian Law
Institute, vol. 45, no. 1, 2003, pp. 97–107. JSTOR, www.jstor.org/stable/43952410.

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It is submitted that apart from the recent developments, the Respondent has had to face many difficulties

during the duration of this marriage, like managing household chores with her studies and job, starting over

and financing her studies in the USA, not being able to conceive a child and opting for surrogacy, but the

couple has managed to overcome it and move ahead together.

It is humbly stated that in one case, due to a fire, the married couple mutually decided to live separately for a

short period of time. But the husband did not fetch his wife back later and started living with another woman.

The Hon’ble Supreme Court granted the decree of RCR in the favor of the wife.56

The Respondent was not living with the Petitioner after a mutual decision for the Respondent to fulfill her job

commitments2021 57. But later, there were no efforts taken by the Petitioner to bring the Respondent back to

live with him in the matrimonial home, rather he started to ignore her calls and started living with Priya in

his house.58

Having fulfilled the above requisites, the Respondent can work this problem out with the Petitioner if given a

chance to save her marriage. It is humbly submitted before the court that the idea of granting a decree of

RCR is to preserve the matrimonial relation as far as possible, by enabling the court to intervene and ask the

withdrawing party to join the other. Hence it is humbly prayed before the learned Court to grant the

Respondent a decree for the RCR.

56 Chinnaperumal v. Mariyayee Ammal, 1976 HLR 568: 89 Mad LW 51: AIR 1976 Mad 179.
57 Proposition Para 15.
58 Idem.

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III. RESPONDENT IS FIT TO GET THE CUSTODY OF THE CHILD

Although not being the mother of the surrogate child genetically, Anjali is legally the mother of the surrogate

child since it was verbally agreed amongst Sandeep, Priya and Anjali that the surrogate mother would have

no access to the child and custody would be with Sandeep and Anjali.

A. Welfare of the child is of paramount consideration

Any decision pertaining to the custody of the child, first should look at the child’s welfare and

development59. The term ‘welfare’ has been mentioned in the section 13 of the Hindu Minority and

Guardianship Act, the moral and ethical welfare of the child are at par with the child’s physical well-being.

Although Section 6 of the Hindu Minority and Guardianship Act 60 constitutes father of the child as the

natural guardian, but the judgement of Surinder Kaur Sandhu v Harbax Singh Sandhu61, stated that the

paramount consideration of welfare of the child does supersedes section 6. Respondent is very hard-working

person and is successful in

her career only because of her sheer2021 determination and hard work, she is neither emotionally nor

financially dependent on Sandeep. Sandeep was never supportive of her, so it can be said that Respondent is

capable of taking care of the child alone and satisfying the child’s emotional and financial needs which are of

utmost importance. The emotional and physical needs can be best taken care by Respondent as she is legally

the mother of the child and it best for child to be with mother, similar approach has been taken by different

Indian Courts62, in the case of granting custody to mother of the concerned minor. Respondent fulfils all the

59 Sheoli Hati v. Somnath Das,(2019) 7 SCC 490.`

60 S.6 of the Hindu Minority and Guardianship Act, 1956.

61 Surinder Kaur Sandhu v. Harbax Singh Sandhu,(1984) 3 SCC

698(India).
62 Gaurav Nagpal v. Sumedha Nagpal, App (Civil) No. 5099 of 2008 (SC); Roxann Sharma v Arun Sharma, App (Civil) No 1966 of
2015, Raj Rani v Subash Chander, 23 (1983) DLT 240(India).

-MEMO ON BEHALF OF THE RESPONDENT-

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conditions set by the court for welfare of the child in the case, Lahari Sakhamuri v Sobhan Kodali63, which

are maturity, mental stability, ability to provide access to schools, ability to provide involvement in

community and financial sufficiency.

2021

63 Lahari Sakhamuri v. Sobhan Kodali, (2019) 7 SCC 311(India).

-MEMO ON BEHALF OF THE RESPONDENT-

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PRAYER FOR RELIEF

Wherefore in light of the facts stated, issues raised, arguments advanced and authorities cited, The Petitioner most

humbly and respectfully request the Session Court to adjudge and declare that:

1. The petitioner is entitled to a decree of punishment.

2. It is a murder not suicide.
3. They both are guilty of murder.

And pass any other order that it may deem fit in the ends of justice, equity and good conscience.

All of which is most humbly and respectfully submitted before this Court.

Date: 24th March, 2023 Counsel No.: FL – 36

Place: Ambala (Counsel for the Petitioner)

-MEMO ON BEHALF OF THE RESPONDENT-

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-MEMO ON BEHALF OF THE RESPONDENT-