1st SURANA & SURANA AND ARMY INSTITUTE OF LAW

NATIONAL FAMILY LAW MOOT COURT COMPETITION

2020

Civil Suit No. ___/2019

Simran………………………………………………………………...Petitioner

v.

Raman………………………………………………………………Respondent

Most respectfully submitted before

The Honorable District Court

MEMORANDUM ON THE BEHALF OF THE RESPONDENT

DRAWN AND FILED BY THE COUNSELS FOR RESPONDENT

1) Whether Petitioner is Entitled for Divorce on the ground of Cruelty?

It is humbly submitted before the Hon’ble Court that the Petitioner is not entitled for divorce

on the ground of cruelty under Section 13 (1) (i-a) of the Hindu Marriage Act, 1955.

It was observed in the case of Shobha Rani v. Madhukar Reddi,1 that there could be cases

where the conduct complained of itself may be ‘bad enough and per se unlawful or illegal’.

Then the impact or the injurious effect on the other spouse need not be inquired into or

considered. In such cases, cruelty will be established, if the conduct itself is proved or

admitted.

The conduct alleged must be judged up to a point by reference to the victim's capacity or

incapacity for endurance, insofar as that is or ought to be known to the offending spouse.2

It is also necessary to weigh all the incidents and quarrels between the parties, keeping in

view the impact of the personality and conduct of one spouse upon the mind of the other.3

The principal that cruelty may be inferred from the whole facts and matrimonial relations of

the parties and interaction in their daily life disclosed by the evidence, is of greater cogency

in cases falling under the head of mental cruelty. Thus, mental cruelty has to be established

from the facts.4

1
Shobha Rani v. Madhukar Reddi

2
Gollins v. Gollins

3
Kaushalya v. Wishakhi Ram, kameswara rao v. Jabilli

4
Babu Ram v. Kanta devi, Animesh trivedi v. Kiran bagai
Commission by the condoned spouse of the matrimonial offence less than legal cruelty will

be sufficient if the conduct complained of is such as, if persisted in, will make married life

together impossible.5

In the case of Jamieson v. Jamieson6 Lord Merriman pointed out that actual intention to

injure was not an essential factor, and that intentional acts may amount to cruelty even though

there was no intention of being cruel.

Motive, malignity or malevolent intention, it is well recognised,7 are not essential factors but

where they exist, they would be factors of considerable importance. 8 Marital discord is not

dependent upon the number of incidents or relentless course of events but must be judged

from the impact and gravity of the conduct complained of.9 While the court would be slow in

accepting and acting on a mere outburst of threatening language or wild expressions uttered

by a person of ungovernable temper.10

Hence, the Petitioner is not entitled for divorce on the ground of cruelty under Section 13 (1)

(i-a) of the Hindu Marriage Act, 1955.

5
Richardson v. Richardson, Thompson v. Thompson

6
Jamieson v. Jamieson

7
squire v. Squire

8
King v. King

9
Vijaykumar Bhate v. Neela Bhate

10
Gouri Roy v. Balai
 2) Whether Petitioner is entitled for Maintenance and Custody of her daughters?

a) Maintenance

It is humbly submitted that the petitioner is not entitled to maintenance from the respondent

under Sec 25 of the Hindu Marriage Act, 1955.

According to Section 25 of the HMA, 1955:

“ Permanent alimony and maintenance . -

(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or

at any time subsequent thereto, on application made to it for the purpose by either the wife

or the husband, as the case may be, order that the respondent shall pay to the applicant

for her or his maintenance and support such gross sum or such monthly or periodical sum

for a term not exceeding the life of the applicant as, having regard to the respondent's

own income and other property, if any, the income and other property of the applicant

[the conduct of the parties and other circumstances of the case], it may seem to the court

to be just, and any such payment may be secured, if necessary, by a charge on the

immovable property of the respondent.

(2) If the court is satisfied that there is a change in the circumstances of either party at any

time after it has made an order under sub-section (1), it may at the instance of either

party, vary, modify or rescind any such order in such manner as the court may deem just.

(3) If the court is satisfied that the party in whose favour an order has been made under this

section has re-married or, if such party is the wife, that she has not remained chaste, or, if

such party is the husband, that he has had sexual intercourse with any woman outside

wedlock, it may at the instance of the other party vary, modify or rescind any such order

in such manner as the court may deem just.”11

11
Section 25, Hindu Marriage Act, 1955, No. 25 of 1955, Acts of Parliament.
This section is wide enough to enable the court exercising jurisdiction under this Act, that is,

under any of the provisions of this Act, including proceedings for annulment, to grant

permanent alimony.12

The decree for restitution of conjugal rights against the petitioner is no bar to his or her claim

for alimony or compensation under this section, if the case is a fit one for such relief. The

expression ‘any decree’ has been used having regard to the various kind of decrees which

may be passed under the provisions of this Act and includes a decree for restitution of

conjugal rights.13

As per Section 25 of the Act, while considering the claim for permanent alimony and

maintenance of either spouse, the respondent’s own income and other property, and the

income and the other property of the applicant are all relevant material in addition to the

conduct of the parties and other circumstances of the case. The courts have also had to take

note of the fact that the amount of maintenance fixed for the wife should be such as she can

live in reasonable comfort considering her status and mode of life she was used to live when

she lived with her husband. 14

In the present case, the respondent is holding a high rank in his company after he was

promoted in early 2014 and has a well-paying job. The petitioner after she came back to India

has only been able to secure a job which only ensure their basic survival. The petitioner has

been unemployed ever since she moved to the US with the respondent and lacks the skills to

enable her to get a good job in the current job market.

b) Custody

12
Soumyanarayanan v. Jaylakshmi, AIR 1975 Mad 196.

13
Ram Piary v. Piara Lal, AIR 1970 P&H 341; Nathulal v. Mana Devi, AIR 1971 Raj 208.

14
Vinny Paramvir Parmar v. Paramvir Parmar, (2011) 13 SCC 112.
It is humbly submitted that the petitioner is not entitled to custody of their children under the

Hindu Minority and Guardianship Act, 1956.

in view of the facts and circumstances of the case, the decree passed by the American Court

though a relevant factor, cannot override the consideration of welfare of the minor children.

We have already stated earlier that in U.S.A. respondent Sushil is staying along with his

mother aged about 80 years. There is no one else in the family. The respondent appears to be

in the habit of taking excessive alcohol. Though it is true that both the children have the

American citizenship and there is a possibility that in U.S.A. they may be able to get better

education, it is doubtful if the respondent will be in a position to take proper care of the

children when they are so young. Out of them one is a female child. She is aged about 5

years. Ordinarily, a female child should be allowed to remain with the mother so that she can

be properly looked after. It is also not desirable that two children are separated from each

other. If a female child has to stay with the mother, it will be in the interest of both the

children that they both stay with the mother. Here in India also proper care of the children is

taken and they are at present studying in good schools. We have not found the appellant

wanting in taking proper care of the children. Both the children have a desire to stay with the

mother. At the same time, it must be said that the son, who is elder than daughter, has good

feelings for his father also. Considering all the aspects relating to the Welfare of the children,

we are of the opinion that in spite of the order passed by the Court in U.S.A. it was not proper

for the High Court to have allowed the Habeas Corpus writ petition and directed the appellant

to hand over custody of the children to the respondent and permit him to take them away to

U.S.A.
 c) Whether Respondent is entitled for a decree of Restitution of Conjugal Rights?

It is humbly submitted before the Hon’ble Court that the Respondent is entitled for a decree

of Restitution of Conjugal Rights under Section 9 of the Hindu Marriage Act, 1955.

According to the Section 9 of the Hindu Marriage Act, 1955: -

“ Restitution of conjugal rights. -

When either the husband or 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.

Explanation.- Where a question arises whether there has been reasonable excuse for

withdrawal from the society, the burden of proving reasonable excuse shall be on the person

who has withdrawn from the society.”15

In the case of Timmins v. Timmins,16 it was held by the Court of Appeal that the husband was

not guilty of cruelty, but his conduct was a grave and weighty matter gave the wife good

cause for leaving him and prevented him from obtaining a decree for restitution of conjugal

rights.

The court has held in various cases that the following situations will amount to a reasonable

excuse to act as a defence in this area:

1. A ground for relief in any matrimonial cause, or

15
Section 9, Hindu Marriage Act, 1955, No. 25 of 1955, Acts of Parliament.

16
Timmins v. Timmins, (1953) 2 All ER 187.
 2. A matrimonial misconduct not amounting to a ground of a matrimonial cause, if

sufficiently weighty and grave, or

3. Such an act, omission or conduct which makes it impossible for the petitioner to live

with the respondent.17

In the present case, the petitioner has withdrawn from the society of the respondent with a

reasonable ground which was cruelty by the respondent.

The concept of ‘reasonable excuse’ or ‘just cause’ assumes significance since, as mentioned

earlier, the conduct of the spouse seeking restitution may fall short of cruelty in the legal

sense but may be such that it may justify withdrawal from society by the respondent.18

The court’s refusal to pass a decree of restitution of conjugal rights is within its discretion if

there is evidence of ill treatment.19

In the case of Putul Devi v. Devi Mandal, the husband was denied restitution of conjugal

rights as his misconduct, even short of legal cruelty, but was grave enough for the wife to

withdraw from the society of the husband.

17
Paluck Sharma, Restitution of Conjugal Right: A Comparative Study Among Indian Personal Laws, Indian

National Bar Association, available at: https://www.indianbarassociation.org/restitution-of-conjugal-right-a-

comparative-study-among-indian-personal-laws/, visited on 25/12/19, 9:00 PM

19
Promod Naik v. Sukanti Naik, AIR 2004 Ori 72.
 d) Whether the order of the US court passed in favour of Respondent regarding the

custody of his daughters is enforceable in India?

It is humbly submitted to the Hon’ble court that the order of the US court passed in favour of

Raman regarding the custody of daughter is not enforceable in India.

In the present case, the facts amount to petitioner leaving the country with her younger

daughter Prabha due to the continued odd and violent behaviour of respondent and the

adverse effect it was causing on her and her daughter respectively.

The state of law as approved in Nithya Anand Raghavan v. State NCT of Delhi, is that if a

child is brought from a foreign country, being its native country to India, the court in India

may conduct: -

(a) summary enquiry, or

(b) an elaborate enquiry on the question of custody,

if called for…. In case of an elaborate enquiry, the court is obligated to examine the merits as

to where the paramount interest and welfare of the child lay and take note of the pre-existing

order of the foreign court for the return of the child as only one of the circumstances. As a

corollary, in both the eventualities whether the enquiry is summary or elaborate, the court

would be guided by the pre-dominant consideration of welfare of the child assuredly on an

overall consideration on all attendant facts and circumstances. In other words, the principle of

comity of courts is not to be accorded a yielding primacy or dominance over the welfare and

well-being of the child which unmistakeably is of paramount and decisive bearing.

In the case of Ruchi Majoo v. Sanjeev Majoo, the court observed that:
“Recognition of decrees and orders passed by foreign courts remains an eternal dilemma

inasmuch as whenever called upon to do so, courts in this country are bound to determine

the validity of such decrees and orders keeping in view the provisions of Section 13 of the

Code of Civil Procedure, 1908, as amended by the Amendment Acts of 1999 and 2002. The

duty of a court exercising its parens patriae jurisdiction as in cases involving custody of

minor children is all the more onerous. Welfare of the minor in such cases being the

paramount consideration; the court has to approach the issue regarding the validity and

enforcement of a foreign decree or order carefully. Simply because a foreign court has taken

a particular view on any aspect concerning the welfare of the minor is not enough for the

courts in this country to shut out an independent consideration of the matter. Objectivity and

not abject surrender are the mantra in such cases. That does not, however, mean that the

order passed by a foreign court is not even a factory to be kept in view. But it is one thing to

consider the foreign judgment to be conclusive and another to treat it as a factor or

consideration that would go into the making of a final decision.”

In Sarita Sharma v. Sushil Sharma this Court was seized with a matter where the mother had

removed the children from USA despite the order of the American court, it was held:

“It will not be proper to be guided entirely by the fact that the appellant Sarita had removed

the children from USA despite the order of the court of that country. So also, in view of the

facts and circumstances of the case, the decree passed by the American court though a

relevant factor, cannot override the consideration of welfare of the minor children. We have

already stated earlier that in USA respondent Sushil is staying along with his mother aged

about 80 years. There is no one else in the family. The respondent appears to be in the habit

of taking excessive alcohol. Though it is true that both the children have American

citizenship and there is a possibility that in USA they may be able to get better education, it
is doubtful if the respondent will be in a position to take proper care of the children when

they are so young. Out of them, one is a female child. She is aged about 5 years. Ordinarily,

a female child should be allowed to remain with the mother so that she can be properly

looked after. It is also not desirable that two children are separated from each other. If a

female child has to stay with the mother, it will be in the interest of both the children that

they both stay with the mother. Here in India also proper care of the children is taken and

they are at present studying in good schools. We have not found the appellant wanting in

taking proper care of the children…Considering all the aspects relating to the welfare of the

children, we are of the opinion that in spite of the order passed by the court in USA it was

not proper for the High Court to have allowed the habeas corpus writ petition and directed

the appellant to hand over custody of the children to the respondent and permit him to take

them away to USA. What would be in the interest of the children requires a full and thorough

inquiry and, therefore, the High Court should have directed the respondent to initiate

appropriate proceedings in which such an inquiry can be held. Still there is some possibility

of the mother returning to USA in the interest of the children. Therefore, we do not desire to

say anything more regarding entitlement of the custody of the children. The chances of the

appellant returning to USA with the children would depend upon the joint efforts of the

appellant and the respondent to get the arrest warrant cancelled by explaining to the court in

USA the circumstances under which she had left USA with the children without taking

permission of the court. There is a possibility that both of them may thereafter be able to

approach the court which passed the decree to suitably modify the order with respect to the

custody of the children and visitation rights.”

In the case of Kanika Goel v. State of NCT of Delhi it was held that:
“There are no compelling reason to direct return of minor child in question, there was

nothing to indicate that the native language was not spoken or the child had been divorced

from the social customs she was accustomed to, further there was no disruption in her

education or child being subject to a foreign system of education likely to psychologically

disturb her, if she returns to US the child would inevitably be under the care of a nanny and

no one from the family would be there at home to look after her thus this could permanently

impact the minor child psychologically and endangering her future, so there is no compelling

reason to direct the return of minor to US.”

The same can be said the respondent being busy in work could thus ignore the parental duties

and obligation towards the child and that can detrimental to their mental health.

In Prateek Gupta v. Shilpi Gupta it was held that:

“it is not open to contend that the custody of female minor child with her biological mother

be unlawful, for there is presumption the contrary…The court must consider the totality of

the facts and circumstances whilst also ensuring the best interest of minor child. The

adjudicative mission is the obligation to secure the unreserved welfare of child as the

paramount consideration. Further the doctrine of “intimate contact and closest concern” are

of persuasive value, only when the child is uprooted from, its native country and taken to a

place to encounter alien environment, language, custom etc. with the portent of mutilative

bearing on the process of its overall growth and grooming …The issue with regard to the

repatriation of a child, as the precedential explications would authenticate has to be

addressed not on a consideration of legal rights of the parties but on the sole and

preponderant criterion of the welfare of the minor. As aforementioned, immediate restoration

of the child is called for only on an unmistakable discernment of the possibility of immediate

and irremediable harm to it and not otherwise. As it is, a child of tender years, with
malleable and impressionable mind and delicate and vulnerable physique would suffer

serious set-back if subjected to frequent and unnecessary translocation in its formative years.

It is thus imperative that unless, the continuance of the child in the country to which it has

been removed, is unquestionably harmful, when judged on the touchstone of overall

perspectives, perceptions and practicabilities, it ought not to be dislodged and extricated

from the environment and setting to which it had got adjusted for its well-being.”

Thus it is for the welfare of the minor child that she remains in India with her biological

mother and enjoy the support of her maternal grandfather and also the affections that was

absent when living with the respondent, therefore the order passed by the court in United

states of America is not enforceable in India.

Hence, the order of the US court passed in favour of Raman regarding the custody of

daughter is not enforceable in India.