INTERNAL ASSIGNMENT MADHUSUDAN LAW UNIVERSITY, 2022

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[TABLE OF CONTENTS]

ABBREVATIONS_________________________________________________________ 3
INDEX OF AUTHORITIES ________________________________________________ 4
BOOKS__________________________________________________________________ 4
CASE LAWS_____________________________________________________________ 4
STATUTES_______________________________________________________________ 5
STATEMENT OF JURISDICTION__________________________________________ 6
STATEMENT OF FACTS__________________________________________________ 7
STATEMENT OF ISSUES_________________________________________________ 8
SUMMARY OF ARGUMENTS____________________________________________ 9
ARGUMENTS ADVANCED_______________________________________________ 10
I. Whether the judgement of the family court is valid under the facts as well as on
the aspects of law

A. Does the lower judicial forum have the appropriate jurisdiction to conduct the trial?
B. Does the Grant of the petition justified in this case after overlooking the facts presented in the trial?

II. Whether the Appellant has deserted the Respondent without any valid excuse or
reason
III. What relief is due to the Appellant?

PRAYER_______________________________________________________________ 13

[MEMORIAL FOR THE RESPONDENT]

 INTERNAL ASSIGNMENT MADHUSUDAN LAW UNIVERSITY, 2022
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[ABBREAVIATIONS]

____________________________ABBREAVIATIONS____________________________

SCBMCH Srirama Chandra Bhanja Medical College and Hospital

IAS Indian Administrative Service

HMA Hindu Marriage Act

FIR First Information Report

IPC Indian Penal Code

CrPC Criminal Procedure Code

DPA Dowry Prevention Act

DVA Domestic Violence Act

[MEMORIAL FOR THE RESPONDENT]

 INTERNAL ASSIGNMENT MADHUSUDAN LAW UNIVERSITY, 2022
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[INDEX OFAUTHORITIES]
INDEX OF AUTHORITIES

BOOKS

Family Law – I by Dr. Ashok K. Jain

Mulla Hindu law by Dinshah Fardunji Mulla and Satyajeet Atul Desai

Family Law by Poonam Pradhan Saxena

Family Law by Paras Diwan

Hindu Law by N H Jhavla

Hindu law by S.R Myeni

CASE LAWS

Suman Singh v Sanjay Singh (2014) SCC – MANU/SC/0251/2017

Malathi Ravi v B.V Ravi (2010) SCC – MANU/SC/0578/2014

Samar Ghosh v Jaya Ghosh (2007) SCC – MANU/SC/1368/2007

Savitri Pandey v Prem Chandra Pandey (2002) SCC – MANU/SC/0010/2002

Arundhati Tripathy v D.P Tripathy (2003) OHC – MANU/OR/0354/2003

Payal A.K Jindal v Capt. Ashok Kumar Jindal (1992) SCC –

MANU/SC/0507/1992

[MEMORIAL FOR THE RESPONDENT]

 INTERNAL ASSIGNMENT MADHUSUDAN LAW UNIVERSITY, 2022
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[INDEX OFAUTHORITIES]
STATUTES

Hindu Marriage Act 1955 (Sections-: 9,13(1),14)

Indian Penal Code 1860 (Sections-: 34, 323, 341, 498A, 506)

Code of Criminal Procedure 1973 (Sections-: 41A, 125(1) )

Dowry Prohibition Act 1961 (Section-: 4)

Protection of Women from Domestic Violence Act 2005

[MEMORIAL FOR THE RESPONDENT]

 INTERNAL ASSIGNMENT MADHUSUDAN LAW UNIVERSITY, 2022
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[STATEMENT OF JURISDICTION]
STATEMENT OF JURISDICTION

The Hon’ble Orissa High Court Convened under the Indian Constitution has the proper
jurisdiction of taking cognizance of the scheduled matters under the Hindu Marriage Act
1955 and the relevant sections of the constitution are reproduced below-:
Section 226 of The Indian Constitution -: Jurisdiction of the High Courts

1. Notwithstanding anything in Article 32 every High Court shall have powers, throughout
the territories in relation to which it exercises jurisdiction, to issue to any person or
authority, including in appropriate cases, any Government, within those territories’
directions, orders or writs, including writs in the nature of habeas corpus, mandamus,
prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of
the rights conferred by Part III and for any other purpose.
2. The power conferred by clause ( 1 ) to issue directions, orders or writs to any
Government, authority or person may also be exercised by any High Court exercising
jurisdiction in relation to the territories within which the cause of action, wholly or in
part, arises for the exercise of such power, notwithstanding that the seat of such
Government or authority or the residence of such person is not within those territories.
3. Where any party against whom an interim order, whether by way of injunction or stay or
in any other manner, is made on, or in any proceedings relating to, a petition under
clause ( 1 ), without:
(a.) furnishing to such party copies of such petition and all documents in support of the
plea for such interim order; and
(b.) giving such party an opportunity of being heard, makes an application to the High
Court for the vacation of such order and furnishes a copy of such application to the
party in whose favour such order has been made or the counsel of such party, the
High Court shall dispose of the application within a period of two weeks from the
date on which it is received or from the date on which the copy of such application is
so furnished, whichever is later, or where the High Court is closed on the last day of
that period, before the expiry of the next day afterwards on which the High Court is
open; and if the application is not so disposed of, the interim order shall, on the
expiry of that period, or, as the case may be, the expiry of the aid next day, stand
vacated.
4. The power conferred on a High Court by this article shall not be in derogation of the
power conferred on the Supreme court by clause ( 2 ) of Article 32.

[MEMORIAL FOR THE RESPONDENT]

 INTERNAL ASSIGNMENT MADHUSUDAN LAW UNIVERSITY, 2022
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[STATEMENT OF FACTS]
STATEMENT OF FACTS

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 Bhubaneswar 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 home maker. 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. Kasinath is a retired Govt. Servant. He retired as Joint Secretary to Health
Department, Government of Odisha. He has a son and a daughter. Son Anshuman is an IAS
officer borne in Andhra Pradesh Cadre and posted as District Collector 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 3/2/2020 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, (25
of 1955) in presence of their respective parents. Other elders of both the families attended the
marriage and blessed them a happy conjugal life.
4. They led 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 six 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 October 2020.
5. 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 vain. 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 his parent’s house. Anshuman flew from
Vishakhapatnam and tried to settle the issue between the two but noting fruitful could
happen. Finally, on 4th August 2020 Anjali filed an FIR in Mahila Police Station
Bhubaneswar. (Ref. 145/ 2018 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 Anajli also filed a maintenance suit under S.
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 her
conjugal rights against her husband. The evidence was taken in the restitution of conjugal
rights already, but final judgment is not yet pronounced.
6. Meanwhile, Rahul also filed a divorce petition in the family court for grant of decree of
divorce and dissolution of marriage.

[MEMORIAL FOR THE RESPONDENT]

 INTERNAL ASSIGNMENT MADHUSUDAN LAW UNIVERSITY, 2022
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[STATEMENT OF ISSUES]
STATEMENT OF ISSUES

ISSUE I. Whether the judgment of the family court is valid under the facts as well as on the
aspects of law?

ISSUE II. Whether the Appellant has deserted the Respondent without any valid excuse or
reason

ISSUE III. What relief is due to the Appellant?

[MEMORIAL FOR THE RESPONDENT]

 INTERNAL ASSIGNMENT MADHUSUDAN LAW UNIVERSITY, 2022
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[SUMMARY OF ARGUMENTS]
SUMMARY OF ARGUMENTS

I. The Judgement delivered by the Lower Judicial Forum is completely valid

In this case the lower judicial forum has met its part of the duty as a body that delivers
justice by upholding the purpose of the court to save the institution of marriage; therefore,
the lower judicial forum's decision is absolutely valid. The High Court has dismissed the
appeal filed by the Appellant to dissolve the institution of marriage, as that petition
cannot be filed as it violates section 14 of the HMA 1955, and it has processed the
petition by the respondent for restitution of conjugal rights under section 9 of the HMA
1955.

II. The Appellant has deserted the respondent without any valid reason or
excuse
In disregarding the agreement between the appellant and the brother of the respondent to
take the respondent to her rightful matrimonial home and also in disregarding the court
order, the appellant has deserted the respondent without any valid reason or excuse in his
pleadings before the lower judicial forum, respondent agrees to accept court's order to
bring him back into his conjugal society.
III. There is no more relief due to the Appellant
The Appellant has no further recourse at this time, since he has been given a chance of a
hearing, and he currently doesn't have any recourse under the law.

[MEMORIAL FOR THE RESPONDENT]

 INTERNAL ASSIGNMENT MADHUSUDAN LAW UNIVERSITY, 2022
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[ARGUMENTS ADVANCED]
ARGUMENTS ADVANCED

I. Whether the judgment of the family court is valid under the facts as well as
on the aspects of law?

Under the facts as well as the law, the judgement passed by the lower judicial forum is valid
since the lower judicial forum dismissed the petition filed by the Appellant under Section 13
of the Hindu Marriage Act, 1955 for dissolution of marriage as a result of the decree of
divorce, the respondent filed a petition pursuant to section 9 of the HMA 1955 seeking
restitution of conjugal rights, thus fulfilling the purpose of the Court in saving marriage rather
than dissolving it
(a) Why the petition of the Appellant filed u/s 13 of Hindu Marriage Act dismissed?
The appeal was dismissed by the lower court because there was no ground under section 13
(1) on which the appellant could approach it seeking the dissolution of the marriage
institution.
The petition of the appellant cannot be filed u/s 13 since the entire incident has taken place
within a year of the marriage since the couple got married on 03/02/2020, and the petition of
the appellant was filed before 03/02/2021 Thus, it violates Section 14 of the aforementioned
Act and cannot also be considered under the ambit of exceptions prescribed in Section 14(1)
of said Act, so the petition cannot be construed legally as having been filed before 1 year
from the date of marriage.

➢ In Suman Singh v Sanjay Singh, the Apex Court has dismissed the petition filed by
the husband for the dissolution of the institution of marriage and considered the
petition of the wife which was filed seeking the restitution of Conjugal rights and why
the reason by which the husband approached the court seeking for divorce isn’t valid
➢ A similar case that can be referred is Malathi Ravi v B.V Ravi
➢ In the case of Samar Ghosh v Jaya Ghosh, the Apex Court discusses the grounds of
consideration of the petition of Divorce filed by husband can be granted on the
allegations such as Desertion and cruelty
➢ In the Case of Payal A.K Jindal v Capt. Ashok Kumar Jindal the Apex court as
dismissed a petition seeking for the institution of marriage to be dissolved considering
Sec 14 of HMA 1955

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1. Suman Singh v Sanjay Singh (2014) SCC – MANU/SC/0251/2017
2. Malathi Ravi v B.V Ravi (2010) SCC – MANU/SC/0578/2014
3. Samar Ghosh v Jaya Ghosh (2007) SCC – MANU/SC/1368/2007
4. Payal A.K Jindal v Capt. Ashok Kumar Jindal (1992) SCC – MANU/SC/0507/1992

[MEMORIAL FOR THE RESPONDENT]

 INTERNAL ASSIGNMENT MADHUSUDAN LAW UNIVERSITY, 2022
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[ARGUMENTS ADVANCED]
(b) Why the Petition of the Respondent seeking restitution of conjugal rights was
entertained and considered by the lower judicial forum?

As there were proper grounds on which one could prove that the respondent had been
excluded from the conjugal life of the appellant, the lower judicial forum considered the
petition filed by the respondent, u/s 9 of HMA 1955, seeking restitution of conjugal rights:
➢ The Appellant himself claimed that there has been not a single instance of a conjugal
relationship for more than 2yrs.
➢ The Appellant has previously disregarded the written agreement between him and the
respondent’s brother to take the respondent to her matrimonial home.
➢ There has been no effort made on the part of the appellant to bring the respondent
back into his conjugal society.
In addition, the court considered the child born out of the marriage and its wellbeing, thus
fulfilling the court's motive of saving marriage rather than dissolving it.

II. Whether the Appellant has deserted the Respondent without any valid excuse
or reason?

According to the facts and circumstances, it won't be wrong to conclude that the
Appellant deserted the Respondent since he himself has claimed that the Appellant and
Respondent have no conjugal relationship. The appellant has disregarded his agreement
with the respondent's brother, according to which he has to take the respondent to her
rightful matrimonial home, in some instances
There has been no indication from the appellant that he intends to bring back the
respondent to his conjugal society despite the legal notice sent by the respondent seeking
to reassign her to the petitioner, regardless of what the court has ordered of him.
➢ In the case of Savitri Pandey v Prem Chandra Pandey the Apex court has stated the
grounds on which it can be considered one has been deserted by the spouse.
➢ Another similar decision passed by the Orissa High Court resembling to this case is
Arundhati Tripathy v D.P Tripathy.

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5. Savitri Pandey v Prem Chandra Pandey (2002) SCC – MANU/SC/0010/2002
6. Arundhati Tripathy v D.P Tripathy (2003) OHC – MANU/OR/0354/2003

[MEMORIAL FOR THE RESPONDENT]

 INTERNAL ASSIGNMENT MADHUSUDAN LAW UNIVERSITY, 2022
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[ARGUMENTS ADVANCED]
III. What relief is due to the Appellant?

The petitioner is not entitled to any further relief, and as a result, the petitioner should
follow the lower judicial forum's decision and reintegrate the respondent into his married
life and society.

[MEMORIAL FOR THE RESPONDENT]

 INTERNAL ASSIGNMENT MADHUSUDAN LAW UNIVERSITY, 2022
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[PRAYER]
PRAYER

In the light of issues raised, arguments advanced and authorities cited, the counsel for the
accused humbly prays that the Hon’ble Court be pleased to adjudge, hold and declare:

1. The continuance of the validity of the order passed by the lower judicial forum
granting the petition filed by the respondent seeking restitution of conjugal rights.

2. To ensure that the appellant admits the respondent back into his conjugal life and
society.

Kindly pass the order that this Hon’ble court may deem fit in the interest of Justice, Equity
and Good Conscience.

And for this Act of kindness the counsel for the accused shall duty bound forever pray.

Sd/-

(Counsel for the Respondent)

[MEMORIAL FOR THE RESPONDENT]