MEMORIAL FOR PROBLEM 4 OF CASE MATERIAL, 2018

TEAM CODE- 10

IN THE HON’BLE SUPREME COURT OF INDIA

Appeal No. ___/2018
UNDER ARTICLES 133 & 134A OF THE CONSTITUTION OF INDIA

MANISH ……………………………….APPELLANT

V.

RANEE……………………........………RESPONDENT

Through Advocates for Appellant:

Divya Verma-163288
(Examination roll no. -160203)

Mohit Aggarwal-163249
(Examination roll no. -160351)

TABLE OF CONTENTS

MEMORIAL ON BEHALF OF APPELLANT

 MEMORIAL FOR PROBLEM 4 OF CASE MATERIAL, 2018

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Table of Contents…………………………………………………………………………..……2
List of Authorities…………………………………………………………………………..….3-4
Statement of Jurisdiction………………….………………………………………….….……...5
Statement of Facts………….………………………………………………………………...….6
Questions Raised……………………………………………………………………………........7
Summary of Arguments…………………………………………………………………….....8-9
Arguments Advanced……………………………………………………………………….10-16
Prayer……………………………………………………………………………………………17

LIST OF AUTHORITIES

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CASES

1. Venei v. Nirmala, AIR 1987 Del 79

2. Geeta jagdish Mangtani v. Jadish Mangatni (2005) 8 SCC 177

3. Bipinchandra Jaisinghbai Shah v. Prabhavati AIR 1957 SC 176

4. Pulford v. Pulford (1923) P 18 at 21

5. Shobha Rani vs Madhukar Reddi 1988 SCR (1)1010

6. Praveen Mehta v. Inderjeet Mehta AIR 2002 SC 2582

7. V. Bhagat vs. D. Bhagat (1994) 1 SCC 33

8. A. Jaychandra v. Aneel Kumar (2005) 2 SCC 22

9. Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511

10. Durga Prasanna Tripathi v. Arundhati Tripathi AIR 2005 SC 3297

11. Naveen Kohli v. Neelu Kohli AIR 2006 SC 1675

12. Dr. Gopal Ramanathan v. Jayashree AIR 2008 SC 889

STATUTES & RULES

1. The Hindu Marriage Act, 1955 (No. 25 of 1955)
2. The Indian Evidence Act, 1872 (Act 18 of 1872)
3. Constitution of India, 1950

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BOOKS
1. Constitutional Law by M.P Jain
2. Family Law, Dr. Poonam Pradhan Saxena, 3rd Edition
3. Cases and Texts on Family Law, Kusum, 4th Edition
4. Law of Marriage, Maintenance, Separation and Divorce; Aiyar S. Krishnamurthi, 5th
Edition

OTHER SOURCES
1. https://www.scconline.com
2. https:// www.manupatra.com

STATEMENT OF JURISDICTION
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The appellant has approached this Hon’ble Supreme court of India under the jurisdiction
provided in Article 133 & 134A of the Constitution of India against the judgement of High
Court.

Article 133: Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to
civil matters

(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a
civil proceeding of a High Court in the territory of India if the High Court certifies under Article
134A (a) that the case involves a substantial question of law of general importance; and (b) that
in the opinion of the High Court the said question needs to be decided by the Supreme Court

(2) Notwithstanding anything in Article 132, any party appealing to the Supreme Court under
clause (1) may urge as one of the grounds in such appeal that a substantial question of law as to
the interpretation of this Constitution has been wrongly decided.

(3)………”1

Article 134 A: Certificate for appeal to the Supreme Court

Every High Court, passing or making a judgment, decree, final order, or sentence, referred to in
clause ( 1 ) of Article 132 or clause ( 1 ) of Article 133, or clause ( 1 ) of Article 134

(a) may, if it deems fit so to do, on its own motion; and

(b) shall, if an oral application is made, by or on behalf of the party aggrieved, immediately
after the passing or making of such judgment, decree, final order or sentence, determine, as soon
as may be after such passing or making, the question whether a certificate of the nature referred
to in clause ( 1 ) of Article 132, or clause ( 1 ) of Article 133 or, as the case may be, sub clause
(c) of clause ( 1 ) of Article 134, may be given in respect of that case.

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STATEMENT OF FACTS

1. The appellant got married to the respondent on 16th Jan 2000.

2. Owing to temperamental differences, there were clashes between them.

3. The respondent-wife left the matrimonial home, after 5 months carrying a 3 month child
and permanently took residence in her parental home. When the husband went to the
hospital to see the child bringing presents, she refused to see him.

4. After 6 years of failed attempts at reviving this marriage, our client filed a case in district
court on grounds of cruelty, desertion and irretrievable breakdown of marriage. It is an
undisputed fact that the appellant has exhausted all remedies to convince the respondent
to revive the marriage over this decade and the process has left the appellant jaded.

5. As a counter to the petition of divorce, the respondent without an iota of evidence has
alleged charges against our client, ranging from physical abuse to her while in pregnancy,
and maltreatment by the in-laws, and has accused the appellant of cruelty which is ironic.
There were no FIRs filed under penal provisions, no witness affidavits, no medical
reports corroborating the alleged physical abuse to the mother or the foetus.

6. The Hon’ble district court has, without a proper reason, deemed the appellant as the
wrongdoer and refused the divorce. On appeal the High Court simply upheld the order of
the District court averring that divorce is not possible in absence of irretrievable
breakdown of marriage as a ground for divorce in Section 13, according to the letter of
the law.

7. 10 years into the litigation dragging the divorce, the appellant, with the permission of the
High Court, is appealing to the Supreme Court, and seeks a prompt divorce under Article
142 of the Constitution.

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QUESTIONS RAISED

I. WHETHER THE PRESENT IS MAINTAINABLE BEFORE THE HON’BLE

SUPREME COURT?

II. WHETHER THE RESPONDENT IS GUILTY OF DESERTION?

III. WHETHER THE CONDUCT OF THE RESPONDENT AMOUNT TO CRUELTY,

UNDER SECTION 13 OF THE HINDU MARRIAGE ACT, 1955, THEREBY
PROVIDING A GROUND FOR APPELLANT TO BE GRANTED A DIVORCE?

IV. WHETHER IRRETRIEVABLE BREAKDOWN OF MARRIAGE CAN BE TAKEN

AS A GROUND OF DIVORCE?

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SUMMARY OF ARGUMENTS

I. WHETHER THE PRESENT IS MAINTAINABLE BEFORE THE HON’BLE

SUPREME COURT?

It is submitted that the present appeal is maintainable before the Hon’ble Court as there is a
substantial question involved in this case which needs to be answered. The ground of
irretrievable breakdown of marriage for divorce has been settled by plethora of judgements
of this Hon’ble Court but still it was stated by High Court that it is not a settled law of land,
so this question needs to be answered for once and all.

II. WHETHER THE RESPONDENT IS GUILTY OF DESERTION?

The respondent left the matrimonial home of the petitioner just after 5 months of her
marriage. It has been more the 10 years of separation of petitioner and respondent. It was
always the intention of the respondent to leave the matrimonial home and never return. The
conduct of respondent clearly shows that she is guilty of desertion as she kept herself away
from the state of things which is one of the essential grounds for desertion.

III. WHETHER THE CONDUCT OF THE RESPONDENT AMOUNT TO CRUELTY,

UNDER SECTION 13 OF THE HINDU MARRIAGE ACT, 1955, THEREBY
PROVIDING A GROUND FOR APPELLANT TO BE GRANTED A DIVORCE?

The respondent left the matrimonial home when she was three months pregnant and even
denied the appellant the visitation rights to his own child. When the appellant visited the
hospital at the birth of his child, he was not allowed to meet the child and his gifts were also
returned to him. The respondent intended to inflict mental cruelty on appellant by keeping

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him in such a miserable state. Mental cruelty is a valid ground for divorce and the act of the
respondent is thus responsible for the failure of marriage.

IV. WHETHER IRRETRIEVABLE BREAKDOWN OF MARRIAGE CAN BE TAKEN

AS A GROUND OF DIVORCE?

The respondent has been separated from the appellant for more than 10 years now and it can be said
that there is nothing left in this marriage now. The marriage has reached a point from which
there is no turning point and it cannot be saved. Thus, the marriage has broken down
irretrievably. Also, this Hon’ble court has plenary powers under Article 142 of the
constitution of to execute a decree /order granting a divorce on the ground to execute a
decree, order granting a divorce on the ground of irretrievable breakdown of marriage even if
when the section 13, HMA doesn’t cover it as a statutory ground.

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ARGUMENTS ADVANCED

I. WHETHER THE PRESENT IS MAINTAINABLE BEFORE THE HON’BLE

SUPREME COURT?

It is humbly submitted that the present appeal has been filed under article 133 of the
constitution and is maintainable.

1. Article 133- Appellate jurisdiction of Supreme Court in appeals from High Courts in
regard to civil matters

(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a
civil proceeding of a High Court in the territory of India if the High Court certifies
under Article 134A

a. that the case involves a substantial question of law of general importance; and

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

The principle question in present case is whether divorce can be granted on the ground of
irretrievable breakdown of marriage. It was stated by the Hon’ble High Court in the order
negating the divorce petition that the law relating to grant of divorce on the ground of
irretrievable breakdown is not a settled law. So in the light of public interest and justice it is
essential for the Hon’ble Supreme Court to decide this question.

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Thus, it is humbly submitted that the present appeal should be maintainable in the Hon’ble
court.

II. WHETHER THE RESPONDENT IS GUILTY OF DESERTION?

It is humbly submitted that the act of respondent amounted to desertion.

5. According to Section 13(1)(ib) of HMA,

“Desertion” means the desertion of petitioner by the other party to the marriage with
animus deserendi towards the total abandonment of marriage with willful neglect of
petitioner by the other party to the marriage which is without reasonable cause of course
and without consent or against the wish of such party.

6. Desertion has the following constituent elements:

a. The factum of separation.

b. Animus deserendi or intention to desert.

c. Desertion should be without the consent of the petitioner.

d. Desertion should be without any reasonable cause.

7. It is submitted that in the present case respondent had an intention to desert from the
matrimonial home of the petitioner which is evident from her conduct of separation from
the petitioner within 5 months of her marriage. If a spouse leaves the matrimonial home
without any reason, he or she is a deserter.1

1
Venei v. Nirmala, AIR 1987 Del 79
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8. In the case of Geeta jagdish mangtani v. Jagdish Mangtani 2, the apex court has
explained the concept of animus deserandi and willful neglect.

9. In the instant case appellants conduct of leaving her matrimonial home and living with
her parents, without any evidence to corroborate her intention to reconcile, shows her
animus deserendi towards total abandonment of marriage and willful neglect of
respondent.

10. In the case of Bipinchandra Jaisinghbai Shah v. Prabhavati3, it was held that

Desertion may be defined as permanent forsaking or abandonment of one spouse by the other
without any reasonable cause and without the consent of the other.

11. In Pulford v. Pulford4, it was held that

Desertion is a total repudiation of obligation of marriage. It is a withdrawal not from

place but state of things.

In the present case desertion is a matter of interference which can be drawn from the facts
and circumstances of the case. Therefore, in the view of above it is humbly submitted that the
respondent is guilty of desertion

III. WHETHER THE CONDUCT OF THE RESPONDENT AMOUNT TO CRUELTY,

UNDER SECTION 13 OF THE HINDU MARRIAGE ACT, 1955, THEREBY
PROVIDING A GROUND FOR APPELLANT TO BE GRANTED A DIVORCE?

2
(2005) 8 SCC 177
3
AIR 1957 SC 176
4
(1923) P 18 at 21
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It is humbly submitted before this Hon’ble court that the conduct on the part of respondent
such as desertion for continuous 10 years, obstinacy and false allegations has resulted in
mental cruelty for the appellant and under section 13 of Hindu marriage act, 1955, mental
cruelty forms a ground for seeking divorce in the court of law.
12. In the present case, the respondent:

● Abandoned the matrimonial home after 5 months

● Completely withdrew from the society of appellant

● Denied appellant’s visitation rights of his own child

And thus, caused cruelty to the appellant.

13. In the case of Shobha Rani vs Madhukar Reddi5, the Apex Court has explained the
meaning of cruelty as– “a course of conduct of one which is adversely affecting the
other. The cruelty may be mental or physical, intentional or unintentional.”

14. In Praveen Mehta v. Inderjeet Mehta6, the Supreme Court has observed that mental
cruelty is a state of mind and feeling, therefore a matter of inference and inference has to
be drawn on the facts and circumstances taken cumulatively.

15. In the case of V. Bhagat vs. D. Bhagat7, this Court had occasion to examine the concept
of 'mental cruelty'. This Court observed as under:

"Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon
the other party such mental pain and suffering as would make it not possible for that
party to live with the other. In other words, mental cruelty must be of such a nature that
the parties cannot reasonably be expected to live together.”

5
1988 SCR (1)1010
6
AIR 2002 SC 2582
7
(1994) 1 SCC 337
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16. In the present case, there has been:

● Non-cooperation in the performance of marital obligations

● Cessation of cohabitation by voluntary act of the Respondent-wife

● Intention to abandon indefinitely, leaving the appellant devoid of company, refusing

the divorce to deprive the appellant of assimilating his own child and wife in a
household, the same persons in which he invested emotionally, sentimentally, and
financially in a whole-hearted way, as well as crippling his prospects of moving on
and seeking a family elsewhere.

17. In Rajan vs Shobha8, it was stated that false allegations after filing of the petition also
amounts to mental cruelty and in the present case- respondent in reply of the original
petition filed under district court falsely alleged the appellant of cruelty and desertion and
also made false remarks of domestic violence against the appellant and his whole family
which ultimately caused more mental torture to the appellant.

In cases where there is no direct evidence, Courts are required to probe into the mental
process and mental effect of incidents that are brought out in evidence.

18. In the case of Samar Ghosh vs. Jaya Ghosh9, the Apex court has given illustrative
examples wherefrom inference of mental cruelty can be drawn, the 14th illustration is
pertinent to the present case. The illustration says that: “Where there has been a long
period of continuous separation, it may be fairly concluded that the matrimonial bond is
beyond repair. The marriage becomes a fiction held together by a legal tie. By refusing
to sever that tie, the law in such cases does not serve the sanctity of the marriage but on
the contrary shows scant regard for the feelings and emotions of the parties, which may
result in mental cruelty”.

8
AIR 1995 Bom 247
9
(2007) 4 SCC 511
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Thus, it is humbly submitted that the act of the respondent amounts to mental cruelty which
was intentionally inflicted upon the appellant.

IV. WHETHER IRRETRIEVABLE BREAKDOWN OF MARRIAGE CAN BE TAKEN

AS A GROUND OF DIVORCE?

It is humbly submitted that in the present case the respondent left her matrimonial home in
short span of just five months from the date of marriage. It is a matter of a common prudence
to understand that minor temperamental issues and trivial clashes are inevitable in any
relationship but that nowhere is a reasonable excuse to leave the company of spouse
permanently. The behavior and the conduct of the respondent is a clear evidence of her lack
of maturity, adjustable nature and an unnecessary haste to move out of the home.

19. In Durga Prasanna Tripathi v. Arundhati Tripathi 10, where a husband filed a petition
taking the same grounds as in the present case, the court held that both the parties have
crossed the point of no return. A workable solution is not possible. Marriage was
consequently dissolved.

Also, the appellant has been denied the right to have access to his child and is left in a
situation of misery. Respondent can’t take advantage of her own wrongs.

20. In Naveen Kohli v. Neelu Kohli11, the court observed that if the marriage has been
wrecked beyond the hope of salvage, public interest of all the concerned lies in the
recognition of the facts and to declare defunct de jure what is already defunct de facto.

21. It is also submitted that mere unsettled position of law isn’t a valid reason for negation of
irretrievable breakdown of marriage as a ground for divorce. This Hon’ble court in
plethora of cases have considered this ground as valid for divorce.

10
AIR 2005 SC 3297
11
AIR 2006 SC 1675
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22. In V. Bhagat v. D. Bhagat12, this Hon’ble court observed:
Irretrievable breakdown of the marriage is not a ground by itself. But while ascertaining the
evidence on record to determine whether the ground alleged is made out and in
determining the relief to be granted, the said circumstances can certainly be borne in
mind.

23. In Dr. Gopal Ramanathan v. Jayashree, 13on husband’s appeal the court found that the
marriage is irretrievably broken. According to the court any measure to prevent the
marriage would be counterproductive and thus the decree of dissolution of marriage was
passed.

24. Also, as per article 142 of the Constitution of India,

Article 142- Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc

( 1 ) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such
order as is necessary for doing complete justice in any cause or matter pending before it,
and any decree so passed or orders so made shall be enforceable throughout the territory
of India in such manner as may be prescribed by or under any law made by Parliament
and, until provision in that behalf is so made, in such manner as the President may by
order prescribe

The decrees and orders of Supreme Court are binding and enforceable on the High Court and
are settled law of the land.

Thus, it is humbly submitted that irretrievable breakdown of marriage can be considered as a

ground for divorce and High Court erred in stating that divorce on the ground of irretrievable
breakdown is not possible as it is not a settled law.

12
Supra 7
13
AIR 2008 SC 889
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PRAYER

Wherefore, in the light of facts stated, questions presented, arguments advanced and authorities
cited, the appellant most respectfully requests this Hon’ble court to adjudge and declare that:

1. The present appeal is maintainable.

2. Irretrievable breakdown of marriage is a valid ground for divorce under Hindu Marriage act.

3. The divorce be granted with immediate effect to spare the appellant from further delay of
divorce in litigation.

And to pass any such order, direction and judgment as this Hon’ble court may deem fit in the
interest of justice, equity and good conscience.

All of which is respectfully submitted

S/d- ______________________

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