MOOT PROPOSITION

SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENT FOR

THE AWARD OF THE DEGREE OF BACHELORS OF LAW (LLB)

TO

RAYAT BAHRA UNIVERSITY, MOHALI- 140104

Under the Supervision of

DR. JASKARAN SINGH

Assistant Professor

SUBMITTED BY – SURESH GAUR

Registration Number- 1707003060

University School of Law

Rayat Bahra University, Mohali

IN THE HONOURABLE SUPREME COURT OF
INDIA

MEMORIAL FILED ON BEHALF OF THE RESPONDENT

CIVIL PROCEEDING NO.: /2016

(Filed under Section 28 of The Hindu Marriage Act, 1955)

A (APPELLANT)

VERSUS

B (RESPONDENT)

Most Respectfully Submitted Before Court of Supreme Court

COUNSELS APPEARING ON BEHALF OF ‘RESPONDENT’

 Table of Contents

Sr no. Particulars Page No.

1 List of Abbreviations 2
2 Index of Authorities 3
3 Statement of Jurisdiction 4
4 Statement of Facts 5
5 Statement of Issues 7
6 Summary of Arguments 8
7 Arguments Advanced 9
7 Prayer 13

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 LIST OF ABBREVIATIONS
A.I.R. All India Reporter
S.C. Supreme Court
S.C.C. Supreme Court Cases
u/s Under Section
Sec. Section
v. Versus
Anr. Another
Cri. Criminal
Cr.L.J Criminal Law Journal
CPC Code of Civil Procedure
Hon’ble Honourable
J. Justice
HMA Hindu Marriage Act, 1955

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 INDEX OF AUTHORITIES

 Statutory Compilations

1. Hindu Marriage Act, 1955

 Books

1. Hindu Law by Paras Diwan

2. Hindu Law by Manu Tripathi
3. Universal Bare Act

 Websites

1. www.manuputra.com
2. www.indialawcases.com
3. www.judis.nic.in
4. www.lawoctopus.com
5. www.vakilno1.com
6. www.legaldatabase.com

 Table of Cases

Sr No. Case Citation Page

1. NARENDRA VS K. MEENA 2016, 9 SCC, 455 9
2. URMILA DEVI VS DAVINDRE KUMAR 1983 (5) DRJ 291 10
3. JASBIR KAUR VS. JASWANT SINGH (1997) 117 PLR 696 10
4 KUSUM VS GURCHARAN SINGH 2018 SCC OnLine 11
Del 12576
5 VIMLESH VS PRAKASH CHAND SHARMA AIR 1992 All 261 11

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 STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of India has jurisdiction to hear the instant matter under Section
28 of the Hindu Marriage Act, 1955 read with Section 109(2) and of The Civil Procedure
Code, 1908

Section 28, The Hindu Marriage Act, 1955-. —

(1) All decrees made by the court in any proceeding under this Act shall, subject to the
provisions of sub-section (3), be appealable as decrees of the court made in the exercise of its
original civil jurisdiction, and every such appeal shall lie to the court to which appeals
ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction.
(2) Orders made by the court in any proceeding under this Act under section 25 or section 26
shall, subject to the provisions of sub-section (3), be appealable if they are not interim orders,
and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions
of the court given in exercise of its original civil jurisdiction.
(3) There shall be no appeal under this section on the subject of costs only.
(4) Every appeal under this section shall be preferred within a 60 [period of ninety days] from
the date of the decree or order.

Section 109, Civil Procedure Code, 1908-

Subject to the provisions in Chapter IV of Part V of the Constitution and such rules as may,
from time to time, be made by the Supreme Court regarding appeals from the Courts of India,
and to the provisions hereinafter contained, an appeal shall lie to the Supreme Court from any
judgment, decree or final order in a civil proceeding of a High Court, if the High Court
certifies-

(i) that the case involves a substantial question of law of general importance; and

(ii) that in the opinion of the High Court the said question needs to be decided by the
Supreme Court.

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 STATEMENT OF FACTS

1. That the Appellant and Respondent are husband and wife.

2. That the Appellant husband had married the Respondent wife on 20th February, 2004.
3. That out of wedlock a female child named Reena was born on 10th November, 2005.
4. That the wife told her parents that the husband was not happy with the birth of the girl
child and wanted to give her away in adoption because he wants a male child.
5. That the Appellant says that the Respondent did not live happily with the Appellant
even for a month after the marriage.
6. That the reason for filing the divorce petition was that the Respondent wife had
become cruel because of her highly suspicious nature and she used to level absolutely
frivolous but serious allegations against him regarding his character and more
particularly about his extra marital relationship.
7. That the behavior of the Respondent wife made life of the Appellant husband
miserable and it become impossible for the Appellant to stay with the Respondent for
foretasted reasons.
8. That the Respondent wanted the Appellant to leave his parents and other family
members and to get separated from them so that Respondent can live independently
and in that event it would become more torturous for the appellant to stay only with
Respondent wife with her such nature and Behavior.
9. That the main ground was cruelty as serious allegations were leveled about the moral
character of the Appellant to effect that he was having an extra-marital affair with a
maid named Sarla.
10. That another important allegation was that Respondent threaten the Appellant that
she would commit suicide.
11. That On 22nd July, 2008 she picked up a quarrel with the Appellant and went to the
bathroom get locked the door from inside and poured kerosene on her body and
attempted to commit suicide.
12. That on getting the smell of kerosene coming from the bathroom, the Appellant his
elder brother and some of the neighbours broke open the door of the bathroom and
prevented the Respondent wife from committing suicide.
13. That the aforestated facts were found to be sufficient by the learned family court for
granting the Appellant a decree of divorce dated 17th November, 2012 after
considering the evidence adducted by both the parties.

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 14. That being aggrieved by the judgment and decree of divorce dated 17th November,
2012 the Respondent wife filled Appeal in 2013 which has been allowed by the High
Court on 18th March, 2017.
15. That the decree of divorce dated 17th November, 2012 has been set aside by High
Court.
16. That being Aggrieved by the judgment and order passed by the High Court, the
Appellant has filled this Appeal to the Supreme Court of India.

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 ISSUES RAISED

I. Whether the respondent is liable for cruelty under section 13(1)(ia) of Hindu
Marriage Act, 1955 or not?

II. Whether the suit for divorce is maintainable under Section 13 of Hindu
Marriage Act, 1955 or not?

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 SUMMARY OF ARGUMENTS

I. Whether the respondent is liable for cruelty under section 13(1)(ia) of HMA or not?

As by the appeal filed by the appellant, it is clear that he wants a divorce on the grounds
of cruelty. However, the actions of the wife do not amount to mental cruelty. The husband’s
hands himself are not clean in the matter and everything the respondent did was a reaction to
what appellant and his family did. The facts and circumstances of the case will be further
examined to show that the respondent’s actions were either justified or the consequences of
her own agonised state of mind.

2. Whether the suit for divorce is maintainable under section 13 of Hindu Marriage Act,
1955?

The issue framed by the respondent on the grounds of cruelty is totally unjusticiable
and will be hereby proved that it was the husband who lead to the systematic breakdown of
the marriage and not the wife.

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 ARGUMENTS ADVANCED

I. Whether the respondent is liable for cruelty under section

13(1)(ia) of HMA or not?

This argument can be clarified by considering the following factors

1.1 Husband’s refusal to accept the female child-

 The appellant absolutely and unequivocally refused to accept and love the female
child Reena who was born out of wedlock.
 He even refused to raise her and wanted to set her up for adoption.
 The respondent is and always has been a loving mother and her husband’s repeated
attempts to alienate the child and remove her from the respondent’s custody gave her
immense mental stress and agony.

1.2 Attitude of the appellant’s parents towards the respondent

 The parents of the appellant added towards the mental agony and pressure that the
respondent faced during her time at the appellant’s
 They supported the opinions of the husband on the adoption of her child Reena and
did not treat either the plaintiff or her child well.
 They also did not take any action regarding the appellant’s affair with the maid Sarla.
 They also overworked the respondent and it was not easy for her to hold on to a job,
take care of her child, deal with the whims of the husband and the inlaws all at the
same time.

1.3 The Respondent’s request to separate from the parents of the appellant

 It is provided in the case of Narendra vs K. Meena1, the Hon’ble Supreme Court has
held- “In normal circumstances, a wife is expected to be with the family of the
husband after the marriage. She becomes integral to and forms part of the family of
the husband and normally without any justifiable strong reason, she would never
insist that her husband should get separated from the family and live only with her.”
 In the above mentioned case the key phrases to look for are “normal circumstances”
and “without any justifiably strong reason”. This clearly signifies that the wife can
request to live seperately from the husband’s parents if the circumstances call for it
and are justified.

1
(2016) SCC 455

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  In the above case, the wife wanted the husband to completely abandon his parents.
She also did not want him to pay them any maintainance. Also, the parents in the
above case were blameless and did not treat the wife cruelly. However, here the
circumstances are very different. The respondent had no qualms about paying
maintainance to the parents of the appellant. Also, her in laws treated her cruelly, they
overworked her, even after knowing that she had a job and had to take care of her
child.
 Since the respondent and the appellant were both working parents, they had to leave
their daughter with the appellant’s parents. Since the appellant’s parents despised her
daughter for being a girl, she was still fearful for her child’s safety especially in the
respect of her mental state as they treated both the respondent and her daughter
cruelly by regularly taunting them and regularly making sarcastic remarks.
 In Urmila Devi vs Davinder Kumar2 it has been stated that a wife making her husband
live away from his parents due to the mistreatment of her in laws does not amount to
cruelty.
 Also it has been held in the case of Jabir kaur vs Jaswant Singh3 that when a husband
marries a working woman he has to adjust with her. However, in this case, the
husband and his parents both refused to compromise and in turn the wife had to
inadvertently request her husband to move out of the house.
 Thus, in this instance, the respondent’s request to her husband to leave his parents is
not cruelty.

1.4 The appellant’s affair with the maid.

 The appellant was having an affair with their maid Sarla.

 Even on repeated requests of the respondent, he still refused to let go of the maid of
her employment at their house.
 His refusal to appoint any other maid clearly showed his feelings towards the maid.
 The claim that the allegations are false and frivoulous is wrong too. The very fact that
the High Court decided to put aside the decree of the family court shows that the
learned judge believed that there was credence to the allegations of the affair by the
respondent and that the evidence presented by the respondent’s council was sufficient
to prove that the husband was indeed engaged in an adulterous affair with the maid.

1.5 Respondent’s Suicide Attempt

 The respondent did indeed attempt to commit suicide on 22nd July 2008.
 However, I would like the lordship to please consider her state of mind before
deciding on the matter.
 As potrayed in the argument 1.1, she was already under extreme mental agony
because of her husband’s refusal to accept her child. As potrayed in argument 1.2, she
was also constantly pressured by the parents wwhich caused her great mental agony.

2
1983 (5) DRJ 291
3
(1997) 117 PLR 696

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 As given in the argument 1.4, the husband was carrying on an affair with their maid
which also caused immesurable grief to the respondent. All these factors coupled
together, were too much to take for the respondent.
 Thus, she was in great mental agony and was driven to the point where she did not
think about the consequences of her actions.
 In the case of Kusum vs Gurucharan Singh4, decided by the Delhi High Court, the
Hon’ble court held that repeated attempts to commit suicide would only amount to
mental cruelty if it was the wife’s wish to implicate the husband for her suicide.
However, in this case, the respondent did not even think to implicate the husband. In
the above mentioned case, the wife’s intention to implicate the husband for her
suicide was proved by the presence of a suicide note written by her. Here, the wife did
not write a suicide note as she was not thinking about causing her husband any
suffering.
 Also, as proved before, the wife’s actions were in reaction to her husband’s and
parent’s mistreatment of her. So the reaction to the mentioned cruelty, does not
amount to cruelty itself.

1.6 Circumstantial Evidence on the appellant’s part

 Appellant has at best circumstantial evidence against the respondent which is very
difficult to prove.
 It was held by the Hon’ble Supreme court in the case of Vimlesh v. Prakash Chand
Sharma5, that a solitary instance of cruelty would not constitute cruelty so as to grant
a decree for divorce rather the behaviour of the other party has to be persistently and
repeatedly treating the other spouse with such cruelty so as to cause a reasonable
apprehension in the mind of the husband/wife that it will be harmful or injurious for
him or her to live with the other party.
 The only allegations of cruelty that had any basis of argument on the part of the
appellant are the wife’s insistance on living separately, her accusations of the affair
and her suicide attempt. As proved before, the wife’s insistance on moving away from
the parents was justified, her condemnation of the affair was verified by the decision
of the High Court and her suicide attempt was in reaction to her husband’s cruelty.
 All other allegations are merely baseless attempts at lies and thus husband’s attempt at
claiming mental cruelty are unjustified.

1.7 Wife’s continued attempts at restoring the marriage.

 The respondent repeatedly tried to restore her marriage.

 Even after the cruelty of her in laws, she still only sought to live away from them
instead of leaving the marriage

4
2018 SCC OnLine Del 12576
5
AIR 1992 All 261

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  Even after the husband’s repeated mistakes like refusal to accept their female child
and refusing to stop his affair with the maid, she kept giving him more chances
instead of filing for a divorce.
 Such is her belief in the institution of marraige that in her aggrieved state of mind she
sought to kill herself instead of divorcing her husband.

II Whether the suit for divorce is maintainable under section 13 of Hindu

Marriage Act, 1955?
 It is humbly submitted before the Hon’ble court that the appeal against the High
Court’s judgment is not maintainable.
 From the presented arguments, it is clear that the defendent is not liable to treat the
petitioner cruelly.
 All the acts of the respondent are a direct result of the mistreatment of the appellant
and his family.
 Section 23(1) of the HMA, clearly signifies that the husband cannot be granted
divorce if he aims at taking advantage of his own wrongs.

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 PRAYER
WHEREFORE in the light of the issues raised, facts stated, circumstances presented and
authorities cited it is humbly submitted before the Hon’ble court to adjudge and declare:

i. That the respondent should not be held liable for mental cruelty.
ii. That the appeal against the decision of the High Court be dismissed.

Any other order as it deems fit in the interest of equity, justice and good conscience. For this act of
kindness the defendant shall duty bound forever pray.

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