MEMORIAL ON BEHALF OF PETITIONER 01 (RADHIKA)

IN THE FAMILY COURT OF Bhopal

Case No: [12345/2023]

Topic of the Case:

Withdrawal of Mutual Consent Divorce Petition and Proper Child Maintenance under Section
13B of the Hindu Marriage Act, 1955.

List of Abbreviations:

1. HMA - Hindu Marriage Act, 1955

2. U/S - Under Section
3. MC - Mutual Consent
4. Rs. - Indian Rupees
5. Adv. - Advocate
6. Sec. - Section
7. Pet. - Petitioner
8. Resp. - Respondent
9. Hons. Court - Honorable Court
10. Appl. - Application
11. Counsel - Legal representative
12. MOU - Memorandum of Understanding
13. Para - Paragraph
14. No. - Number
15. Yrs. - Years
16. Lacs - Hundred Thousand (Indian numbering system for 100,000)
17. Adv. Vijay Yadav - Advocate Vijay Yadav, counsel for the petitioner Radhika
18. Bhopal - The city where Radhika and Raju reside
19. Dec. - Decree
20. Contd. - Continued
21. Resp. to Appl. - Response to Application
22. UW - Unilateral Withdrawal
 Index of Authorities:

Statutes:

1. Hindu Marriage Act, 1955

 Section 13B: Divorce by mutual consent.
 Section 24: Maintenance pendente lite and expenses of proceedings.

Case Laws:

1. Amit Kumar v. Ramesh Kumar & Anr., (2012) 9 SCC 460

 Pertains to withdrawal of mutual consent divorce petition and the court's
discretion.
2. Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558
 Addresses the issue of child maintenance and the welfare of the child in
divorce proceedings.
3. Sureshta Devi v. Om Prakash, (1991) 2 SCC 25
 Covers the grounds for withdrawal of mutual consent divorce petitions and
the court's jurisdiction.
4. Swati Kaushik v. Shubham Kaushik, (2010) 1 SCC 679
 Pertains to the court's power to convert a mutual consent divorce petition to a
contested case.
5. Shilpa Aggarwal v. Aviral Mittal, (2018) 15 SCC 248
 Discusses unilateral withdrawal of mutual consent divorce petitions and its
implications.

Legal Articles & Journals:

1. "Child Maintenance and Divorce: A Comparative Study"
 Published in the Indian Journal of Family Law, 2020.
2. "Withdrawal of Mutual Consent Divorce Petitions: A Legal Perspective"
 Published in Legal News & Views, 2019.
3. "Jurisdiction of Court in Divorce Proceedings"
 Published in Journal of Indian Law and Society, 2021.

Other Relevant Documents:

1. Affidavit filed by Radhika

 Detailing the grounds for withdrawal of the mutual consent petition and the
necessity for revised child maintenance.
2. Reply to Withdrawal Application filed by Madhav
 Stating his opposition to Radhika's withdrawal application and his reliance on
the initial mutual consent agreement.
3. Application for Maintenance filed by Radhika
 Seeking interim maintenance for Raju during the pendency of the divorce
proceedings.
4. Mutual Consent Divorce Petition
 Documenting the initial agreement between Radhika and Madhav regarding
divorce and child maintenance.

Statement of Jurisdiction:
Introduction:
The present petition has been filed under Section 13B of the Hindu Marriage Act,
1955, seeking divorce by mutual consent between the parties, namely Radhika and
Madhav, who were married as per the Hindu traditions and customs.
 Jurisdiction of the Court:
This Honorable Court has jurisdiction to entertain the present petition for divorce by
mutual consent under Section 13B of the Hindu Marriage Act, 1955, as the parties
were married as per Hindu customs and rituals and the respondent, Madhav, is
currently residing within the jurisdiction of this Court.

Facts Pertaining to Jurisdiction:

1. Marriage as per Hindu Customs:

The marriage between Radhika and Madhav was solemnized as per the Hindu
traditions and customs, making the Hindu Marriage Act, 1955, applicable to their
matrimonial dispute.
2. Residence of the Parties:
Both Radhika and Madhav were residing together in Bhopal at the time of filing the
mutual consent divorce petition. This establishes the territorial jurisdiction of this
Court.
3. Execution of the Mutual Consent Petition:
The parties, being mutually agreeable to the terms of divorce, filed a mutual consent
divorce petition under Section 13B of the Hindu Marriage Act, 1955, in this
Honorable Court.

Legal Provisions:

1. Section 13B of the Hindu Marriage Act, 1955:

This section provides for divorce by mutual consent, where both parties need to be
residents of the jurisdiction where the petition is filed and have been living
 separately for a specified period. The said period has been fulfilled by the parties in
the present case.
2. Section 21 of the Hindu Marriage Act, 1955:
This section empowers the Family Court to make inquiries regarding the compliance
of mutual consent conditions and the welfare of the child before granting a divorce
decree.

Conclusion:
Considering the above facts and legal provisions, it is evident that this Honorable
Court possesses the requisite jurisdiction to entertain the mutual consent divorce
petition filed by the parties. The parties have complied with the necessary conditions
stipulated under Section 13B of the Hindu Marriage Act, 1955, for the grant of
divorce by mutual consent.

Statement of Facts:
Background and Marriage:
Radhika and Madhav entered into matrimony as per the customs and traditions
prevailing in their community. Their union was blessed with a child named Raju.

Mutual Consent Divorce Petition U/S 13B of Hindu Marriage Act, 1955:
After five years of marital life, both Radhika and Madhav mutually decided to part
ways and filed a mutual consent divorce petition under Section 13B of the Hindu
Marriage Act, 1955. Both parties consented to the following conditions:

1. Child Maintenance: Madhav agreed to pay Radhika two lacs per month as child
maintenance for Raju until he attains 18 years of age.
2. Custody of Raju: Raju was to reside with Radhika at their home in Bhopal.
3. Advance Child Maintenance: An amount of two lacs was to be paid to Radhika
immediately after filing the mutual consent petition as an advance towards child
maintenance until the divorce decree was granted.
4. Regular Maintenance: Post the divorce decree, Madhav committed to making
regular monthly payments of two lacs to Radhika as child maintenance.

Delay in Divorce Proceedings:

Despite the mutual agreement and filing of the petition, there was no progress in the
divorce proceedings for two months. Six months post the filing of the mutual
consent petition, Radhika felt compelled to apply for the withdrawal of the said
petition.

Application for Withdrawal:

Radhika approached the court with an application seeking withdrawal of the mutual
consent divorce petition. Her primary contention was that the agreed child
maintenance amount did not comprehensively cover the needs and expenses of Raju.

Reply by Madhav:
In response to Radhika's withdrawal application, Madhav filed a reply opposing the
withdrawal. He argued that unilateral withdrawal under Section 13B cannot be
permitted since both parties had initially acted upon mutual consent.
 Issues for Consideration:

1. Whether Radhika's application for withdrawal can be allowed and on what grounds?
2. Can the court reject Radhika's application for withdrawal, and if so, on what grounds?
3. Whether the court has the jurisdiction to convert the mutual consent divorce case
into a contested one?

Statement of Issues:

1. Validity of Withdrawal Application:

a. Whether the withdrawal application filed by Radhika can be allowed by the Court?
b. Whether the grounds raised by Radhika for withdrawal, primarily concerning child
maintenance, are sufficient to permit her withdrawal from the mutual consent
divorce petition?
2. Admissibility of Madhav's Objection:
a. Can Madhav's objection to Radhika's withdrawal application, citing his actions
based on the mutual consent petition, be accepted by the Court? b. Whether
Madhav's claim of having acted upon the mutual consent petition prevents Radhika
from withdrawing her consent?
3. Jurisdiction of the Court:
a. Does the Court have the authority to convert the mutual consent divorce case to a
contested case based on the application for withdrawal filed by Radhika? b. Whether
the Court can modify the terms of the mutual consent divorce petition to address the
concerns raised by Radhika regarding child maintenance?

Summary of the Issues:

1. The primary issue revolves around Radhika's right to withdraw her consent from the
mutual divorce petition filed under Section 13B of the Hindu Marriage Act, 1955. She
seeks withdrawal primarily due to dissatisfaction with the child maintenance terms
agreed upon with Madhav.
2. Madhav opposes Radhika's withdrawal, claiming that he has acted in reliance upon
the mutual consent petition and that her unilateral withdrawal would be unjust.
3. Furthermore, the jurisdiction of the Court is in question, regarding its power to
convert a mutual consent divorce case into a contested case or modify the terms
based on Radhika's application.

Summary of Arguments:
The present case revolves around the application filed by Radhika seeking withdrawal of the
mutual consent divorce petition filed under Section 13B of the Hindu Marriage Act, 1955.
The primary contention is the inadequacy of child maintenance in the original agreement
between Radhika and Madhav.

Arguments Advanced:

1. Grounds for Allowing Withdrawal:

a. Inadequate Child Maintenance:
Radhika contends that the agreed upon two lacs per month for child maintenance is
insufficient for the upbringing and education of Raju. Given the rising costs of living
and educational expenses, a reevaluation of the maintenance amount is necessary to
ensure Raju's well-being and proper upbringing.
b. Delay in Proceedings:
The case has remained stagnant for two months after filing, and no progress has
been made. Such delay in finalizing the divorce and child maintenance can adversely
affect Radhika and Raju's financial stability and emotional well-being.
2. Rejection of Madhav's Reply:
a. No Irrevocable Consent:
The mutual consent given by both parties initially did not account for the long-term
 well-being of Raju. Radhika's decision to withdraw the petition is not unilateral but
based on the genuine concern for her child's future, which was overlooked earlier.
b. Legal Precedents:
Courts have often prioritized the welfare of the child in divorce cases. In this context,
the court must consider the child's needs and welfare paramount over procedural
convenience.
3. Conversion of Mutual Consent to Contested Case:
a. Jurisdiction of the Court:
The court has the inherent jurisdiction to ensure that justice is done and that the
welfare of the child is safeguarded. If the mutual consent petition fails to address the
child's maintenance adequately, the court can and should convert the mutual
consent case into a contested one to ensure a fair and just outcome.
b. Best Interest of the Child:
As per the principles enshrined in various legal precedents and the Juvenile Justice
Act, 2015, the best interest of the child should always be the primary consideration.
The court must, therefore, intervene to ensure that Raju's rights and interests are
protected and that he receives adequate financial support for his upbringing.

Conclusion:
Radhika, as a concerned mother, seeks the court's intervention to ensure that Raju's
future is secure and that he receives proper maintenance from Madhav. The
withdrawal of the mutual consent petition is not a mere procedural formality but a
necessity to address the inadequacies in child maintenance. Thus, Radhika's
application for withdrawal should be allowed, and the court should ensure that Raju's
interests are protected by reevaluating and revising the child maintenance amount.

Prayers:
In light of the above arguments and facts, the petitioner respectfully prays that this
Honorable Court may be pleased to:

1. Allow the withdrawal of the Mutual Consent Divorce petition U/S 13B of the HMA
filed by the petitioner.
2. Convert the MC case to a contested case to ensure adequate child maintenance for
Raju.
3. Award costs of the petition to the petitioner.
4. Pass any other order(s) that this Honorable Court deems fit and proper in the interest
of justice.

Date: 1st march 2023

Place: Bhopal

[Signature of Counsel for Radhika, Adv. Vijay Yadav]