Roll no.

-26
MADHUSUDAN LAW UNIVERSITY,2022

BEFORE THE HON’BLE HIGH COURT OF MAYUR VIHAR

IN THE MATTER OF

Mr. SMRUTI…………………………………………………………PETITIONER

V/s

Ms. SUSHREE…..……….……………………………………RESPONDENT

WRITTEN SUBMISSION ON BEHALF OF RESPONDENT

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TABLE OF CONTENTS
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1. INDEX OF AUTHORITIES…………………………………..3
2. LIST OF ABBREVIATIONS…………………………………..4
3. STATEMENT OF JURISDICTION………………………….5
4. STATEMENT OF FACT………………………………………..6
5. STATEMENT OF ISSUES……………………………………..9
6. SUMMARY OF ARGUMENTS…………………………….10
7. ARGUMENT ADVANCED……………………………………12
8. PRAYER…………………………………………………………….15

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INDEX OF AUTHORITIES
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CASE LAWS:
1. G.P. Srivastava v. Shri R.K. Raizada & Ors.(2000)
2. Narayan Ganesh Dastane V. Sucheta Narayan Dastan 1975 AIR
1534
3. Kaushalya v. Wisakhiram 1961 AIR PH 521

BOOKS:
1. PARAS DIWAN
2. DINSHAH FARDUNJI MULLA

STATUTES:
1. HINDU MARRIAGE ACT,1955

WEBSITES:
1. Indiankanoon.org
2. Scconline.com
3. Studocu.com

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LIST OF ABBREVIATION
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1. i.e – that is
2. HMA- Hindu Marriage Act,1955
3. u/s – under section
4. Ors. - Others

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STATEMENT OF JURISDICTION
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The counsel representing the respondent i.e the sate most humbly
submits that the memorandum is filed in furtherance of the appeal
filed before this hon’ble High Court of Mayur Vihar u/s 19 of Family
Court Act.

Section 19. Appeal

1) Save as provided in sub section(2) and not withstanding
anything contained in the code of civil procedure, 1908 or in
the code of Criminal Procedure, 1973 or in any other law, an
appeal shall lie from every judgement or order, not being an
interlocutory order, of a family court to the High Court both on
facts and on law.

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STATEMENT OF FACTS
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1. Mr. Smruti belongs to a poor family background from West
Bengal, and Ms. Sushree belongs to rich family background
from Mayur Vihar, and both of them were working in a Multi-
National Company in GradeStack Company Ltd. since 2013;
although their department were different but they often used
to catch up during breaks and after exchanging their numbers,
the venue of their meets got increased from canteen to coffee
shops, cafes and homes. With time, both of them realized they
are in love, and then they got married with the consent of their
parents in the year 2017 as per Hindu rites and rituals in West
Bengal. It was a well-known fact for both the parents of Ms.
Sushree and Mr. Smruti that she is of suspicious nature.
2. Both of them were happy in the initial days of their marriage
including the in-laws who were supporting to her in her work
life. Both the husband and wife went to honeymoon to
overseas to build their relationship strong and take off from
their hectic work life. However, after a month, Ms. Sushree
didn’t returned to her marital home after work, due to which
the in-laws and Mr. Smruti got really worried and searched for
her and called her but she didn’t respond any of their calls.
3. On the next day, the in-laws and Mr. Smruti went to visit her
mother and they saw Ms. Sushree was there too. Her in-laws
and husband showed their way of unacceptable nature with
the behaviour of Ms. Sushree, and they somehow controlled
their emotions and gave her a chance to come back to her
marital home again for a peaceful restart. However, Ms.
Sushree shown her unwillingness to return to her marital home
and expressed her unhappiness in that place. Then Ms.

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Sushree’s mother convinced her inlaws that she will send her
back.
4. Then after two weeks of the incident, Mr. Smruti called her
again and shown his affection to his wife to return back to his
marital home, but there was no positive response from the side
Ms. Sushree. Then, the next day, Ms. Sushree lodged an F.I.R.
against the husband and in-laws at Mayur Vihar Phase-I Police
Station under Section 498A of IPC and Section 506 of IPC with
the reason that, the in-laws family tortured her and her
mother-in-law is a dangerous person who uses black magic, in
which she applies that to her son because of which she fell in
love with her and showed her injury marks on her shoulder and
hand to the IIC.
5. However, the IIC didn’t gave any positive response on the
complaint and expressed that there is no credible evidence in
this case and closed the investigation with a remark that how
the it is normal and random practice for harassing the in-laws
with no reason. During investigation, the IIC also found that the
bike of Mr. Smruti got damaged because of the accident and
also found that he was drunk when the accident occurred.
6. After one-two weeks of the incident, Mr. Smruti went to a bar
with his colleague and said how sad and depressed he is
because his wife left him and Mr. Smruti got the idea for filing a
petition before Family Court, West Bengal of Boi Toi district in
terms of restitution of conjugal rights and also stated reasons
that he offered a separate house which is way good looking
than his previous house to his wife but wife rejected such
proposal. However, the Family Court passed the notice of
summons to the wife and such notice was not received by her
as she moved to a separate place, and there was no
information that whether she received such notice or not,
resulting to ex-parte decree passed by the Family Court in
favour of Mr. Smruti.

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7. On the other hand, Ms. Sushree went to separate state at
North India at Manali and joined a company after a break of the
incident that happened in the marriage. She decided to start a
fresh life and she was not used to attend any office parties or
meetings. One day her boss Mr. Ayush asked her reason for not
attending such parties, where she disclosed the entire scenario
and also stated that she is not interested to see the face of her
husband if he would be there in any function. Mr. Ayush
understood the situation and stayed closer with her to grab her
attention and helped her emotionally. After hearing the entire
incident, Mr. Ayush realized that the husband of Ms. Sushree is
his former co-employee. Mr. Ayush put continuous effort and
one day he proposed to Ms. Sushree and very astonishingly she
agreed to the proposal. Mr. Ayush gave a condition to file a
divorce and after the divorce get done, they will get married.
Ms. Sushree then filed a divorce petition in the Family Court,
Kullu, Himachal Pradesh where she resides. Then notice of
summons were sent to Mr. Smruti but as he shifted to a
different place his summons was never received by him. Then
Family Court, under certain circumstances passed ex-parte
decree in favour of Ms. Sushree. After that, Ms. Sushree and Mr
Ayush got happily married in the court marriage.
8. Mr. Smruti got curious about how his wife didn’t returned
home after such order given by the Family Court in terms of
“restitution of conjugal rights” due to which he got more
violent and had a fight in the bar. After the fight, his colleague
rescued him and took him to his house. On the next day, his
colleague sent him the link where Mr. Smruti saw that in the
Matrimonial website, Sushree has given her status as divorcee.
Out of curiosity, he along with his colleague went to the
address she mentioned in the matrimonial website. There he
saw and found out about her second marriage. And Sushree
said to him not to interfere with her life anymore and both got
the idea about their respective orders. Mr. Smruti moved to the

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High Court of Himachal Pradesh and showed his order for
restitution of conjugal rights which was passed in his favour
and prayed that she would be charged for bigamy and Ms.
Sushree also challenged order and also supported her divorce
decree as a part of her evidence.
9. An application was filed before the Supreme Court for the
transfer of the petition to a common place in the High Court
and it was set that such petition to be conducted in the High
Court of Mayur Vihar.

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STATEMENT OF ISSUES
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1. WHETHER THE RESTITUTION OF CONJUGAL RIGHTS PASSED IN
FAVOUR OF Mr. SMRUTI IS VALID OR LIABLE TO SET ASIDE?
2. WHETHER THE DIVORCE PASSED IN FAVOUR OF Ms. SUSHREE IS
VALID OR INVALID?
3. WHETHER Ms. SUSHREE CAN BE CHARGED FOR BIGAMY OR
NOT?

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SUMMARY OF ARGUMENTS
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1.WHETHER THE RESTITUTION OF CONJUGAL RIGHTS PASSED IN

FAVOUR OF Mr. SMRUTI IS VALID OR LIABLE TO SET ASIDE?
It is not valid but liable to set aside, because the notice has not
served to Mrs. Sushree and knowingly Mr. Smruti has given the
address where Mrs. Sushree was not living. The notice could be
served to proper address of Mrs. Sushree if Mr. Smruti had put
efforts to find the present address of Mrs. Sushree. So,the ex parte
decree which passed by the family court in favour of Mr. Smruti is
not in the knowledge of Mrs. Sushree.

2. WHETHER THE DIVORCE DECREE PASSED IN FAVOUR OF Mr.

SUSHREE IS VALID OR LIABLE TO SET ASIDE?
It is absolutely valid because Mrs. Sushree was being tortured by her
husband and in-laws due to demand of more dowry and have also
suffered from physical as well as mental torture.
And Mrs. Sushree was also assaulted by her husband and had injury
marks on her hands and shoulder. Secondly, her mother in law is a
dangerous person who uses black magic, which she applied to her
son because of which Mrs. Sushree fell in love with her son.
Therefore, Mrs. Sushree had lodged FIR at Mayur vihar phase I police
station under section 498A and 506 of IPC.
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Because of all these above mentioned reasons Mrs. Sushree could
not live with her husband, and left her marital house and stayed at
her parent’s house.
She decided to start a fresh life and to marry a person who would
care her feelings, respects her so, she filed a suit for a decree of
divorce in the family court, Kullu, Himanchal Pradesh where she
resides, under section 13(1)(i-a).
The hon’ble court passed a decree in favour of Mrs. Sushree.

3.WHETHER Mrs. SUSHREE CAN BE CHARGED FOR BIGAMY OR

NOT?
She can not be charged for bigamy because she has already got the
decree of divorce. To start a new life and to forget all those bad
memories happened in past she married to another person Mr.
Ayush only after the divorce decree was passed.

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ARGUMENT ADVANCED
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1.WHETHER THE RESTITUTION OF CONJUGAL RIGHTS PASSED IN
FAVOUR OF Mr. SMRUTI IS VALID OR LIABLE TO SET ASIDE?
Mr. smruti and Mrs. sushree both married with the consent of their
parents in the year 2017 as per hindu rites and rituals in west Bengal.
Both of them were happy in the initial days of their marriage
including the parents who were supporting to her in her work life.
However, after a month Mrs. Sushree did not return to her marital
home after work. Mr. Smruti got really worried and searched for her
and called her but she did not respond to any of his calls. On the next
day, the in-laws and Mr. Smruti went to visit her mother and they
saw Ms.
Sushree was there too. Her in-laws and husband showed their way of
unacceptable nature with the behaviour of Ms. Sushree, and they
somehow controlled their emotions
and gave her a chance to come back to her marital home again for a
peaceful restart. However, Ms. Sushree shown her unwillingness to
return to her marital home and expressed her unhappiness in that
place. Then Ms. Sushree’s mother convinced her in laws that she will
send her back.

After one or two weeks of the incident Mr. Smruti filed a petition for
restitution of conjugal rights under section 9 of Hindu Marriage
Act,1955 before the Hon’ble family court ,West Bengal of Boi Toi
district. Section 9 of HMA, 1955 says “When either the husband or

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the wife has, without reasonable excuse, withdrawn from the society
of the other, the 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.
The restitution of conjugal right is not valid but liable to set aside,
because the notice has not served to Mrs. Sushree and knowingly
Mr. Smruti has given the address where Mrs. Sushree was not living.
The notice could be served to proper address of Mrs. Sushree if Mr.
Smruti had put efforts to find the present address of Mrs. Sushree.
So,the ex parte decree which passed by the family court in favour of
Mr. Smruti is not in the knowledge of Mrs. Sushree. In G.P.
Srivastava v. Shri R.K. Raizada & Ors.(2000), the Court said that if
the party is not able to set any ‘sufficient cause’ for his
nonappearance on the fixed date then the ex parte proceedings will
be initiated against him.

2. WHETHER THE DIVORCE DECREE PASSED IN FAVOUR OF Mrs.

SUSHREE IS VALID OR LIABLE TO SET ASIDE?
It is absolutely valid because Mrs. Sushree was being tortured by her
husband and in-laws due to demand of more dowry and have also
suffered from physical as well as mental torture.
And Mrs. Sushree was also assaulted by her husband and had injury
marks on her hands and shoulder. Secondly, her mother in law is a
dangerous person who uses black magic, which she applied to her
son because of which Mrs. Sushree fell in love with her
son.Therefore, Mrs. Sushree had lodged FIR at Mayur vihar phase I
police station under section 498A and 506 of IPC.
Because of all these above mentioned reasons Mrs. Sushree could
not live with her husband, and left her marital house and stayed at
her parent’s house.
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She decided to start a fresh life and to marry a person who would
care her feelings, respects her so, she filed a suit for a decree of
divorce in the family court, Kullu, Himanchal Pradesh where she
resides, under section 13(1)(i-a) which states that “any marriage
solemnized, whether after or before the commencement of this Act ,
may, on a petition presented by either husband or the wife, be
dissolved by a decree of divorce on the ground that the other party
has trated the petitioner with cruelty.
In Narayan Ganesh Dastane V. Sucheta Narayan Dastan it provided
the guidelines regarding mental cruelity:
i. Acts constituting cruelty must be proved from such acts to the
law of evidence.
ii. There should be an apprehension in the petitioner’s mind of
real harm or injury from such contract.
iii. The apprehension must be reasonable.
iv. The petitioner must not have taken advantage of his or her
position.
v. The petitioner must not have condoned the acts of cruelty.
PHYSICAL CRUELTY:
In Kaushalya v. Wisakhiram ,it was held that even though injuries on
the person were considered to be not very serious as to call for their
medical treatment, yet she had been actually beaten up this must be
held to amount to cruelty.

3.WHETHER Mrs. SUSHREE CAN BE CHARGED FOR BIGAMY OR

NOT?
Mrs. Sushree was living separately after that marital dispute. She
went to separate state at North India at Manali and joined a
company after a break of the incident that happened in the
marriage. She decided to start a fresh life and to forget all those bad
memories happened in past she married to another person Mr.
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Ayush only after the divorce decree was passed. She could be
charged for bigamy if there is appeal against the decree of court and
the marriage has not dissolved, or if there if the appeal has been
filed but it has not been dismissed Hence, she cannot be charged for
bigamy.
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PRAYER
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WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS
ADVANCED AND AUTHORITIES CITED, IT IS HUMBLY REQUESTED
THAT THIS HON’BLE COURT MAY BE PLEASED TO ADJUDGE AND
DECLARE:

That the respondent cannot be charged for bigamy.

AND MAY PASS ANY SUCH ORDER, OTHER ORDER THAT IT DEEMS FIT
IN THE INTEREST OF JUSTICE, EQUITY AND GOOD CONSCIENCE.
AND FOR THIS, APPELANT AS IN DUTY BOUND SHALL HUMBLY PRAY.

RESPECTFULLY SUBMITTED BY
Counsel on behalf of the plaintiff

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