IN THE HON’BLE DISTRICT COURT, MOHALI

MEMORIAL ON BEHALF OF PETITIONER

ASHA

(PETITIONER)

v.

SAGGAR

(RESPONDENT)

UNDER HINDU MARRIAGE ACT, 1955

UPON SUBMISSION TO THE HON’BLE DISTRICT JUDGE

MEMORANDUM ON BEHALF OF THE PETITIONER

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TABLE OF CONTENTS

Table of Contents ii

List of Abbreviations iii

Index of Authorities iv

Table of Cases iv

Books iv

Websites iv

Statutes iv

Statement of Jurisdiction v

Statement of Facts vi

Statement of Issues vii

Summary of Arguments viii

Arguments Advanced 1

Issue-I 1

Whether Petitioner is entitled to decree of divorce on ground of cruelty?

Prayer 4

MEMORANDUM ON BEHALF OF THE PETITIONER

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LIST OF ABBREVIATIONS

AIR All India Reporter

Cri LJ / Cr LJ Criminal Law Journal
Cr.P.C. Code of Criminal Procedure
Ed. Edition
HMA Hindu Marriage Act, 1955
p. Page No.
P&H Punjab and Haryana High Court
SC Supreme Court
SCC Supreme Court Cases
Sec. Section
v. Versus

MEMORANDUM ON BEHALF OF THE PETITIONER

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INDEX OF AUTHORITIES

INDEX OF AUTHORITIES

TABLE OF CASES:

1. Russel v. Russel [1897 AC 395]

2. P. K. Vijayappan Nair v. J. Ammini Amma [1997 Kel 70]
3. H v. W. [AIR 2007 NOC 2382(Del)]
4. G.V.N Kameswara Rao V/s G. Jalili, [2002 SC 576]
5. Brown v. Brown [1925]
6. Jyotish Chandra v. Meera [AIR 1970 Cal 266].
7. Anil Kumar v. Sefali [ 1997 Cal 6]
8. K Palanisamy v P. Samaithal [2002 Mad 156]

BOOKS:

1. Paras Diwan, Modern Hindu Law, (18th Ed. 2010)

2. Paras Diwan, Family Law (2016)
3. Ashok Kumar Jain, Family Law, 33rd Ed. (2011)

WEBSITES:

1. http://www.findlaw.com

2. http://www.judis.nic.in

3. http://www.manupatra.co.in/AdvancedLegalSearch.aspx

4. http://www.scconline.com

STATUTES:

1. The Hindu Marriage Act, 1955

MEMORANDUM ON BEHALF OF THE PETITIONER

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STATEMENT OF JURISDICTION

STATEMENT OF JURISDICTION

The Petitioner has moved to this Hon’ble Court by virtue of Section 19 of HMA which confers

jurisdiction upon this Hon,ble Court for obtaining a decree of Divorce under Section 13 of the

Hindu Marriage Act, 1955 on the ground of Cruelty and Desertion by Saggar (Respondent).

MEMORANDUM ON BEHALF OF THE PETITIONER

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STATEMENT OF FACTS

STATEMENT OF FACTS
1. That Asha, a girl from traditional orthodox family married to Saggar in January 2015.

2. That both Asha and Saggar were having difference of thoughts, opinions and sentiments.

3. That after her marriage, Asha was keen on having a job. She started appearing in interviews.

But the all the job offers required her to work till 6.00 P.M. and at times later also.

4. That Saggar did not agree with her proposal and told her would have to be a homemaker all

her life.

5. That as a part of his job in corporate sector, Saggar often used to come late from office.

6. That he also had to travel to different places to represent his company and sometimes his

female colleagues used to accompany him on his job trips.

7. That Asha gave birth to a baby in December 2016 at her parental home but all the medical

expenses were borne by Saggar.

8. That there were often regular quarrels between the couple on the one pretext or another.

9. That Asha always blamed that her husband was having illicit relations with other girls. She

even found a diary of her husband in which he had expressed his feelings quoting names of

various girls in the form of romantic poetry.

10. That when she confronted him, he accused her of being jealous, unfit to be his wife and

being a psycho.

11. That Asha finally left the matrimonial home in May 2017 leaving the child with Saggar

as she had no means to support the child.

12. That He requested Asha number of times to come back. Asha came back in April 2018

for a week but again left for her parental home.

MEMORANDUM ON BEHALF OF THE PETITIONER

13. That Asha filed divorce petition in 2019 on the grounds of cruelty and desertion and that she

was maltreated, abused and given beatings by her husband.

14. That She alleged that she was forced to carry all household work even when she was pregnant.

She also alleged that her husband is having adulterous relations with other girls.

MEMORANDUM ON BEHALF OF THE PETITIONER

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STATEMENT OF ISSUES

STATEMENT OF ISSUES

ISSUE 1

Whether the Petitioner is entitled to decree of divorce owing to Desertion and Cruelty

committed by Respondent?

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SUMMARY OF ARGUMENTS

SUMMARY OF ARGUMENTS

ISSUE I
WHETHER THE PETITIONER IS ENTITLED TO DECREE OF DIVORCE OWING
TO DESERTION AND COMMITTING CRUELTY COMMITTED BY RESPONDENT?

It is humbly submitted before this Hon’ble Court that the Respondent Saggar is very much

liable for committing cruelty upon the petitioner. As the respondent has maltreated the

petitioner on several occasions and the petitioner was made to do work even during her days

of pregnancy. Also the petitioner was forced to leave her matrimonial house by the acts of

respondent which makes the respondent liable for constructive desertion. Hence, Petitioner is

entitled for a decree of divorce under section 13 of HMA.

MEMORANDUM ON BEHALF OF THE PETITIONER

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ARGUMENTS ADVANCED

ARGUMENTS ADVANCED

ISSUE-I

WHETHER THE PETITIONER IS ENTITLED TO DECREE OF DIVORCE OWING

TO DESERTION AND COMMITTING CRUELTY COMMITTED BY RESPONDENT?

It is humbly contended before this Hon’ble Court that the petitioner is entitled to the decree of
Divorce on the following grounds under Section 13 of the Hindu Marriage Act, 1955:

1.1.CRUELTY

To establish Cruelty as a ground of Divorce, the requirements of Section 13(1)(ia) of HMA are
required to be fulfilled. The essential ingredient of the said grounds is that after Solemnization
of marriage of marriage, the respondent has treated the petitioner with cruelty.

Meaning of Cruelty:

The term Cruelty has not been defined anywhere in Hindu Law or HMA. However, the Indian
Judiciary has played a very vital role in defining the meaning and scope of Cruelty. In Russel v.
Russel [1897 AC 395] the Court defined the term Cruelty as a conduct of such character as to
have caused danger to life, limb or health (bodily or mental) or as to give rise to reasonable
apprehension of such danger.

Types of Cruelty:

In P. K. Vijayappan Nair v. J. Ammini Amma1 [] the Court observed that in order to attain decree
of divorce on ground of Cruelty under Hindu Law, the Cruelty should be of type which satisfy
the conscience of the Court that the relationship has deteriorated to such an extent that it has
become impossible for them to live together without mental agony. In the present case also the
attitude and behavior of respondent towards the petitioner was such that it became impossible for
petitioner to cohabit with the respondent in her matrimonial home.

1
1997 Kel 70
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ARGUMENTS ADVANCED

It is a settled principle that to constitute mental 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. In the present case, the petitioner was made to
work even during the days of her pregnancy and was also battered by her husband which clearly
depicts physical Cruelty on the part of Respondent.

In H v. W. [AIR 2007 NOC 2382(Del)] the Court observed that Undue familiarity with opposite
sex also amounts to Cruelty under Hindu Law. In the present case also, the petitioner found a
diary of her husband in which he had expressed his feelings quoting names of various girls in the
form of romantic poetry and thus it lead to mental cruelty to the petitioner and thus the petitioner
is entitled to a decree of Divorce on this ground. Further, Saggar also used to tell her that she is
unfit to be his wife, which eventually felt to the petitioner that the respondent has no love and
affection left for her, as he started disliking the company of the petitioner.

In G.V.N Kameswara Rao V/s G. Jalili, [2002 SC 576] the Supreme Court observed that the act
of cruelty need not be of such nature as to create reasonable apprehension that it would be harmful
for petitioner to live with the other party. When the petitioner said that she wants to do job but in
return the respondent didn’t support her rather was beaten by the respondent and was told that
she has to be and will remain a house wife for her entire life.

1.2.DESERTION

To establish Desertion as a ground of Divorce, the requirements of Section 13(1)(ib) of HMA are
required to be fulfilled. The essential ingredient of the said ground is that the respondent has
deserted the petitioner for a continuous period of not less than two years immediately preceding
the presentation of the petition.

Under Hindu Law, two kinds of Desertion has been discussed namely:
• Actual Desertion
• Constructive Desertion

MEMORANDUM ON BEHALF OF THE PETITIONER

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ARGUMENTS ADVANCED

Actual Desertion is where the factum and animus coincide with the same spouse. Whereas in
Constructive Desertion the factum of separation is on part of one spouse but the intention to
desert is found to be on other spouse. It is often said that desertion is not withdrawal from a
place but from a state of things.

If a spouse creates a situation or conduces himself in a manner that the other spouse is compelled
to leave the matrimonial house then the spouse who forced the other party to leave the home is
deserter and not the spouse who left home.
In Brown v. Brown [1925], the court observed that the party who intends bringing cohabitation
to an end and whose conduct in reality causes its termination commits the act of desertion.

In Jyotish Chandra v. Meera [AIR 1970 Cal 266] the Court observed that where husband by his
conduct created a situation that it was impossible for wife to stay any longer in the matrimonial
home, he becomes guilty of desertion, even though it was wife who left the matrimonial home.

In Anil Kumar v. Sefali [ 1997 Cal 6] the Court observed that where the husband by his conduct
made the wife leave the matrimonial home and did not make any effort to bring her back, he
cannot ask for the decree of judicial separation on the ground of desertion by wife. On the
contrary, wife can ask for any matrimonial relief on the ground of desertion by her husband.

In K Palanisamy v P. Samaithal [2002 Mad 156] the Court observed that where husband by his
conduct created a situation that it was impossible for wife to stay any longer in the matrimonial
home, and he did not take any steps to restore the cohabitation, he becomes guilty of desertion,
even though it was wife who left the matrimonial home.

MEMORANDUM ON BEHALF OF THE PETITIONER

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PRAYER

Prayer

In the light of the issues raised, arguments advanced and authorities cited it is humbly prayed
before the Hon’ble Court to adjudge and :-

1. The Decree of Divorce be granted in the favour of Petitioner on grounds above mentioned.
2. A reasonable amount of Maintenance be awarded to the petitioner for living her life in a
dignified manner.

AND/OR

Pass any other order as it deems fit in the interest of Equity, Justice and Good
Conscience.

For This Act of Kindness, the Petitioner Shall Duty Bound Forever Pray.

Place: Mohali S/d

Date: May 16, 2019 COUNSEL FOR THE PETITIONER

MEMORANDUM ON BEHALF OF THE PETITIONER