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CNLU FRESHER’S MOOT COURT COMPETITION - 2019

Before,

THE HON’BLE FAMILY COURT OF PATNA

PETITION UNDER SECTION 19 OF HINDU MARRIAGE ACT, 1955

In the Matters of:

SAURAV..................................................................………......…. PETITIONER

VERSUS

RAJNI...........................................................................................RESPONDENTS

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT

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 TABLE OF CONTENTS

TABLE OF CONTENTS ............................................................................................................... II

LIST OF ABBREVIATIONS ......................................................................................................IIII

INDEX OF AUTHORITIES ........................................................................................................ IV

STATEMENT OF JURISDICTION ................................................................................................ V

STATEMENT OF FACTS ........................................................................................................... VI

ISSUES RAISED ....................................................................................................................... VII

SUMMARY OF ARGUEMENTS.........................................................................................X

ARGUMENTS ADVANCED................................................................................................XI

I. THAT THE PRESENT PETITION IS NOT MAINTABLE IN THE HON’BLE COURT .......... 1
II. THAT THE CONDUCT OF RESPONDENT DO NOT AMOUNT TO MENTAL CRUELTY ... 2
A. THAT THE CONDUCT OF RESPONDENT COMES UNDER ORDINARY WEAR AND TEAR OF
FAMILY LIFE NOT CRUELTY ....................................................................................................... 3
B. THAT GROUND OF CRUELTY HAS BEEN CONDONED BY THE
APPELLANT.................................4
III. THAT RESPONDENT HAS NOT DESERTED APPELLANT ................................................ 5
A. THAT THE STATUTORY PERIOD OF TWO YEARS OF DESERTION WAS NOT THERE....5

B. THAT THERE WAS ABSENCE OF ANIMUS DESERENDI................................................6

PRAYER ...................................................................................................................................... 7

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 LIST OF ABBREVIATIONS

& And

¶ / Para Paragraph

AIR All India Reporter

Cal Calcutta

DMC Divorce and Matrimonial Cases

ed. Edition

Govt. Government

Hon’ble Honourable

HLR Himachal Law Reporter

i.e. That is

IPC Indian Penal Code

LJ Law Journal

SC Supreme Court

SCC Supreme Court Cases

V./VS. Versus

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 INDEX OF AUTHORITIES

STATUTES
• The Hindu Marriage Act, 1955
• The Divorce Act, 1869
• Indian Penal Code
CASES
1. V. Bhagat v. D.Bhagat AIR 1994 SC 710: 1994 AIR SCW 45: (1994) 1 SCC 337......2

2. Savitri Pandey vs Prem Chandra Pandey AIR 2002 SC 591…………………………3

3. Sarbadhikary v. Alok Ranjan Sarabdhikary 1985 (1) HLR 759: AIR 1985 Cal 431:
(1984) 1 Cal LJ 487……………………………………………………………………3
4. Sukhdev Singh Hindu law of marriage and divorce (2nd ed. 2018)…………………...3
5. Kalra v. Vinod Kalra (1981) 1 DMC 42………………………………...…………….3
6. N.G. Dastane v. S. Dsatane AIR 1975 SC 1534……………………………………3
7. Yashodabai v. Krishnamurt............................................................................................3
8. Deepav v. Prithi Pal Singh Bedi FAO 217/76 decided on DEC. 2, 1977………..……4
9. Rohini Kumar v. Narender Singh, AIR 1972 SC 459....................................................5
..

BOOKS REFERRED
• Sukhdev Singh Hindu law of marriage and divorce (2nd ed. 2018)

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 STATEMENT OF JURISDICTION

The Hon'ble Court has Jurisdiction to hear the instant matter under Section 19 of the Hindu
Marriage Act, 1955.

Section 19 of the Hindu Marriage Act, 1955 reads as:

Every petition under this Act shall be presented to the district court within the local limits of
whose ordinary original civil jurisdiction—

(i) the marriage was solemnised, or

(ii) the respondent, at the time of the presentation of the petition, resides, or

(iii) the parties to the marriage last resided together, or

(iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the
petition, or

(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the
respondent is, at that time, residing outside the territories to which this Act extends, or has not
been heard of as being alive for a period of seven years or more by those persons who would
naturally have heard of him if he were alive.

THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS AND ARGUMENTS IN THE
INSTANT CASE.

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 STATEMENT OF FACTS

1. Saurav resident of Allahabad married Rajni resident of Bombay according to Hindu

rituals at Patna on May 21, 2010 and started living with Rampal and Ganga who are
parents of Saurav at Allahabad in Rampal’s House. Rajni was blessed with a daughter
named khushee after one and half year.
2. In February, 2014, Radha younger married daughter of Rampal started living in the
same house due to her marital problems with her husband. Rekha, elder sister of Radha
started making frequent visits. Rajni was not comfortable with Radha which resulted in
daily house fights.
3. On August 12, 2014, Rajni filed a complaint in the police station against Radha, Rekha
and her parents for domestic violence caused to her. They were called to police station
for interrogation.
4. In the meantime Radha left house with her husband. Two days later Radha’s husband
has heart attack and got hospitalised. Saurav suggested his wife to meet radha and
console her. She refused to do so, hence Saurav has arguments with her. Rajni felt
offended and filed a complaint in police station against Saurav and his parents along
with Radha for abetting family members against her. Again they are called for
interrogation. On the request of father-in-law Rajni withdrew her complaint on the
condition that they will not stay in the house.
5. Parents left house & started living at their native village. Few days later when Rampal
visited to meet her granddaughter, Rajni refused her entry in the House. After that there
were everyday arguments between them. Rajni filed complaint against him for domestic
violence.
6. Saurav out of frustration left house in January, 2017 and started living in Patna doing
the same business. After few days Rampal visited to meet his grand-daughter. This time
after insisting he was allowed to meet khushee. He gave her school fees and other
expenses to her daughter-in-law.
7. After three months later Saurav came back to his house but was neither allowed to enter
into house nor to meet her daughter. He was regularly paying maintenance and all
expenses through his father.

PRESENT PETITION: Saurav filed case for divorce on the grounds of cruelty and
desertion in Family Court at Patna.

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 ISSUES RAISED

-I-

WHETHER THE PETITION FILED IS MAINTAINABLE ON GROUND OF DESERTION AND CRUELTY

IN THE HON’BLE COURT?

-II-

WHETHER THE RESPONDENT WIFE IS GUILTY OF CRUEL BEHAVIOUR WITH PETITIONER?

-III-

WHETHER THE RESPONDENT WIFE HAS DESERTED THE PETITIONER HUSBAND ?

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 SUMMARY OF ARGUMENTS

1. WHETHER THE PETITION FILED IS MAINTAINABLE ON GROUNDS OF DESERTION

AND CRUELTY IN THE COURT OF LAW?

It is humbly submitted before the Hon’ble Court that the present petition filed before the
bench is not maintainable on grounds of desertion and cruelty in the court of law. As
because for providing the ground of desertion it must be established by the husband that he
was willing to live with the wife but the wife was avoiding cohabitation by deserting the
husband, and at the same time he alleged her cruelty to which means as respondent practice
cruelty against appellant so he does not want to live with her. It resulted into two
inconsistent position in law hence the petition should not be maintainable in the Hon’ble
court.

2. WHETHER THE RESPONDENT WIFE IS GUILTY OF CRUEL BEHAVIOUR WITH

PETITIONER?

It is humbly submitted before the Hon’ble Court that in the instant case there was no cruelty
on the part of respondent . The conduct complained of cruelty should be grave and weighty
i.e. something more than ordinary wear and tear of married life. Here the acts of the
respondent alleged by the petitioner were not of such degree of cruelty that Petitioner’s life
became miserable and hence marital tie be snapped. Additionally, those acts were just
ordinary wear and tear of the marriage and don’t amount to Mental cruelty.

3. WHETHER THE RESPONDENT WIFE HAS DESERTED THE PETITIONER HUSBAND?

It is humbly submitted before the Hon’ble Court that respondent has not deserted the
petitioner for continuous period of more than two years and divorce petition had been filed
before completion of required relevant two year’s period of desertion as mentioned in
Section 13(1) (ib) of The Hindu Marriage Act, 1955. Also there is absence of intention to
bring cohabitation permanently to an end on part of respondent which is the essential
condition to prove desertion.

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 ARGUMENTS ADVANCED

I. THAT THE PRESENT PETITION IS NOT MAINTABLE IN THE HON’BLE

COURT

It is humbly submitted before the Hon’ble Court that the present petition filed before the
bench is not maintainable on grounds of desertion and cruelty in the Hon’ble Court. In Pal
Rampal v. Santosh Rampal Hon’ble Supreme Court observed that, for providing the ground
of desertion it must be established by the husband that he was willing with the wife but the
wife was avoiding cohabitation by deserting the husband. And here in the instant case
petitioner filed for divorce on the ground of desertion at the same time he also alleged that
respondent was practicing cruelty against him. It would thus result into two inconsistent
positions in law; the husband is not willing to live with the wife but at the same time for
the purpose of desertion, he is ready to keep her but she is avoiding his company. Hence it
is most humbly requested before this Hon’ble court that appellant’s request to decree
divorce shall be rejected and case be dismissed.

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 II. THAT THE CONDUCT OF RESPONDENT DO NOT AMOUNT TO MENTAL CRUELTY

It is humbly submitted before the Hon’ble Court that parties to a marriage tying nuptial
knot are supposed to bring about the union of souls. It creates new relationship of love,
affection, care and concern between the husband and wife. 1

Section 13 of The Hindu Marriage Act, 1955 defines the grounds for divorce and Section
13(1) (ia) specifically states that:

(1) Any marriage solemnised ,whether before or after the commencement of this Act,
may, on a petition presented by either the husband or the wife, be dissolved by a decree
of divorce on the ground that the other party-

(ia) has, after the solemnisation of the marriage, treated the petitioner with
cruelty;2

The term ‘Cruelty’ constitutes both acts of Physical and Mental cruelty. Even though act
does not define mental cruelty as such, the Supreme court has in many verdicts defined and
established the grounds for Mental cruelty.

It is humbly submitted before the Hon’ble Court that in V. Bhagat v. D.Bhagat3 Supreme
Court held that a conduct that causes such a mental pain and suffering that makes it
impossible to live with that person is mental cruelty. Mental Cruelty such that it cannot
reasonably be expected to live together. And in instant case the appellant has not suffered
any such mental pain which makes him impossible to live with her wife. Further stated that
what is cruelty in one case may not amount to cruelty in another case. This has to be judged
in the circumstances of the case.

It is most humbly submitted before this Hon’ble court that the conduct of respondent do not
amount to mental cruelty [A] and that ground of cruelty has been condoned by the appellant
[B].

1 JAYACHANDRA V. ANEEL KAUR

2 The Hindu Marriage Act, 1955 Section 13
3 V. Bhagat v. D.Bhagat AIR 1994 SC 710: 1994 AIR SCW 45: (1994) 1 SCC 337

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 A. THAT THE CONDUCT OF RESPONDENT COMES UNDER ORDINARY WEAR
AND TEAR OF FAMILY LIFE NOT CRUELTY

It is humbly submitted before the Hon’ble Court that in Savitri Pandey vs Prem Chandra
Pandey4 the Hon’ble Supreme Court observed that “Cruelty to be distinguished from the
ordinary wear and tear of family life. It cannot be decided on the basis of sensitivity of the
petitioner and has to be adjudged on the basis of the course of conduct which would in
general be dangerous for a spouse to live with the other.”5 Establishing the facts of the
present petition, the daily house fights and scolding for frequent late comings falls under
ordinary wear and tear of family life not cruelty.

It is humbly submitted before the Hon’ble Court that in Krishna Sarbadhikary v. Alok
Ranjan Sarabdhikary6 it was observed that “Merely by showing that parties are unhappy
because of unruly temper of a spouse or matrimonial wringlings fall considerably short of
the conduct which can amount to cruel treatment. It would not be sufficient to show that
the other spouse is moody, whimsical, exacting, inconsiderate and irascible. Defects of
temperament must ordinarily be accepted for better or for worse. Therefore, there may be
unhappiness in a marriage and the court cannot for that cause alone find cruelty.” 7
Establishing facts of present case of appellant’s parents leaving house doesn’t amount to
mental cruelty.

It is humbly submitted before the Hon’ble Court that In Neelam Kalra v. Vinod Kalra 8,
Justice Ms. Leela Seth observed, “the conduct should be grave and weighty” so as to make
cohabitation virtually unendurable. It must be more serious than ordinary wear and tear of
marriage.”Establishing the present case there is no such conduct on the part of respondent
which falls under grave and weighty conduct.

It is humbly submitted before the Hon’ble Court that in Yashodabai v. Krishnamurt9, it was
held that “mere domestic quarrels with mother in law is not cruelty.” Thus establishing the
fact daily house fight with sister-in-law do not amounts to mental cruelty.

4 Savitri Pandey vs Prem Chandra Pandey AIR 2002 SC 591

5 Savitri Pandey vs Prem Chandra Pandey AIR 2002 SC 591
6 Sarbadhikary v. Alok Ranjan Sarabdhikary 1985 (1) HLR 759: AIR 1985 Cal 431: (1984) 1 Cal LJ 487
7 Sukhdev Singh Hindu law of marriage and divorce (2nd ed. 2018)
8Kalra v. Vinod Kalra (1981) 1 DMC 42
9 Yashodabai v. Krishnamurt

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 B. THAT GROUND OF CRUELTY HAS BEEN CONDONED BY THE APPELLANT

It is humbly submitted before the Hon’ble Court that the second ground of cruelty established
by the fact is that the respondent filed a case of domestic violence under Section 498-A of
Indian Penal Code against him and his family which constituted to mental cruelty doesn’t hold
because the case was withdrawn by the respondent and the two parties resumed cohabitation.
This implies that the appellant condoned the act of the respondent. According to Section 21 (1)
(b) of the Hindu Marriage Act, relief can be granted to petitioner “ whereas the ground of the
petition is cruelty the petitioner has not in any manner condoned the cruelty”

It is humbly submitted before the Hon’ble Court that in Deepav v. Prithi Pal Singh Bedi10, it
was held that act of cruelty would be deemed to have been condoned where the parties
cohabited for period of about two years. Similarly in present petition first complaint under sec
498A of IPC was filed on August,201411 and petition for divorce has been file in April,2017 in
the mean time the cohabitated except last three months since the act has been condoned.

Since the appellant has condoned the particular act he can’t be using the same as a ground for
mental cruelty.

10 Deepav v. Prithi Pal Singh Bedi FAO 217/76 decided on DEC. 2, 1977
11 ¶ 3 of moot proposition
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 III. THAT RESPONDENT HAS NOT DESERTED APPELLANT

It is most humbly submitted before the honourable court that under Section 13 (1) (ib)
respondent wife has not deserted appellant husband because essential conditions that are to be
needed to prove desertion has not been met.
Section 13 of The Hindu Marriage Act, 1955 defines the grounds for divorce and Section
13(1) (ib) specifically states that:

(1) Any marriage solemnised ,whether before or after the commencement of this Act,
may, on a petition presented by either the husband or the wife, be dissolved by a decree
of divorce on the ground that the other party-

(ib) has deserted the petitioner for a continuous period of not less than two years
immediately preceding the presentation of the petition;

It is most humbly submitted before the honourable court that the statutory period of two
years was not there[A] that there was absence of animus deserendi[B]

A. THAT THE STATUTORY PERIOD OF TWO YEARS OF DESERTION WAS NOT THERE

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It is most humbly submitted before the honourable court that under section 13 (1) (ib) “
to entitle the petitioner to decree of dissolution of marriage on the ground of desertion, the
statutory period of two years must be there. This period of two years must have lapsed prior
to the presentation of the petition i.e., the date on which petition is filled.”13 Otherwise
desertion can’t be established. In the instant case petitioner left home in January, 2017 and
return back to house after three months later 14. And Divorce petition has been filed before
completion of required relevant two year’s period of desertion. Hence the statutory period
of two years of desertion was not established.

B. That There Was Absence Of Animus Deserendi

It is most humbly submitted before the honourable court that under that the intention to
bring cohabitation permanently to an end (animus deserendi) is an essential element to
prove desertion. In Rohini Kumar v. Narender Singh 15Supreme Court was held that Even
though there is de facto separation, there will be no desertion unless the guilty spouse has

12
Hindu Marriage Act, 1955
13
Sukhdev Singh Hindu law of marriage and divorce (2nd ed. 2018)
14
¶ 7 & 8 of moot proposition
15
Rohini Kumar v. Narender Singh, AIR 1972 SC 459
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 the intention to bring cohabitation permanently to an end. Establishing the facts of the
present petition the respondent wife does not have any intention to bring cohabitation to an
end, she was not allowing her husband into the house was out of disgust and anger. Asat
the first instance she hadn’t allowed her father-in-law too to enter into the house and to
meet his grand-daughter but later she allowed so. As in Snehlata Seth v. Kewal Krishna
Seth, it was observed that “if any spouse abandons home in a state of temporary passion,
disgust or anger without intending cohabitations cease permanently, will not amount to
desertion.” 16

16 Sukhdev Singh Hindu law of marriage and divorce (2nd ed. 2018)

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 PRAYER

Wherefore in the light of the arguments advanced and authorities citied, the Respondents
humbly submit that the Hon'ble Court may be pleased to adjudge and declare that:

1. The petition shall not be maintainable on the ground of cruelty and desertion.
2. The respondent was not cruel against appellant.
3. The respondent has not deserted appellant.
AND

That the court may issue any other order as the court deems fit in the interest of justice, equity
and good conscience.

For this act of kindness, the Respondents shall be duty bound forever.

All of which is most humbly and respectfully submitted.

S/D-

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