KHALSA COLLEGE OF LAW, CIVIL MOOT,2021

TABLE OF CONTENTS

• LIST OF ABBREVIATIONS.........................................................................................PG-3

• TABLE OF CASES.....................................................................................................PG-4

• STATUTORY COMPILATIONS..................................................................................PG-5

• FACTS OF THE CASE ...............................................................................................PG-7

• STATEMENT OF JURISDICTION...............................................................................PG-8

• STATEMENT OF ISSUES...........................................................................................PG-9

• ARGUMENTS ON BEHALF OF PETITIONER..........................................................PG-10

• PRAYER CLAUSE..................................................................................................PG-18

MEMORIAL FOR THE PETITIONER

 KHALSA COLLEGE LAW, CIVIL MOOT, 2021
OF

3REVIATIONS
LIST OF
ABE

& And
Anr Another
CRPC Code Of Criminal
Procedure
Hon'ble Honourable
HC High Court
SC Supreme Court
U/s Under Section
V/s Versus
AIR All India
Reporter
b/w Between
HMA, 1955 Hindu Marriage
Act, 1955
Acc. According
Govt. Government
FIR First Information
Report

MEMORIAL
FOI RTHE PETITIONER
KHALSA COLLEGE OF LAW, CIVIL MOOT, 2021

TABLE OF CASES

MEMORIAL FOR THE PETITIONER

 KHALSA COLLEGE OF LAW, CIVIL MOOT, 2021

WEBSITES

WWW.SUPREMECOURTCASES.COM

WWW.INDIANKANOON.COM

WWW.LIVELAW.COM

WWW.LEGALBLOG.IN

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PETITIONER
 KHALS COLLEG OF LAW, CIVIL MOOT, 2021

FACTS OF THE CASE

• Shri Ram Singh hails from state of Kerala, belongs to an orthodox Hindu family and
settled in Delhi from 1950 doing the manufacturing business.
• He has one wife and three daughters namely, Mrs. Kirti Singh aged 27, Ms Aastha aged
25 and Ms. Aashima aged 22.
• During the month of June 2007, Mr. Ram Singh started looking for a good bridegroom
for his daughter, Ms. Aastha, a gold medalist from I IT Kanpur and also working in TCS,
New Delhi from June 2005.
• He has published his daughters profile of a boy namely Mr. Abhishek from the same
religion and also working in software industry.
• Abhishek's parents Mr. Ratanlal and Mrs. Aasha belong to Hindu religion have home in
India and also in USA.
• Abhishek got a job in USA during the year 2000. From the year 2000 he is working in
USA and staying there alone. He holds Indian passport but is a resident of USA.
• After the meeting of Abhishek and Aastha, the marriage was performed as per Hindu
religion and also Brahman community traditions.
• The marriage was conducted on 12.12.2007. Later the marriage got registered at sub
registrar office, in New Delhi.
• On 1.1.2008, the couple left to U.S.A and stayed there for a period of one year and
applied for permanent residence in U.S.A.
• In the middle of November 2008 some dispute arose between them, due to Abhishek's
behavior.
• Aastha while she was in U.S.A came to know that Abhishek had already married
another woman in U.S.A in the year 2006, by the name of Ms. Stella & subsequently
filed petition for divorce.
• During the pendency of proceedings, he came to India and completed the marriage
with Aastha.
• Abhishek starting creating problems to her in U.S.A & was not treating her properly. He
kept her in confinement at home & also harassed her.
• With the help of some neighbors, she escaped from the custody of her husband &
reached Delhi & subsequently explained everything to her parents.
• In the month of March, 2009, Aastha filed a case for divorce in the District Court.

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PETITIONER
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STATEMENT OF JURISDICTION

THE PETITIONER HAS APPROACHED THIS HON"BLE DISTRICT COURT OF DELHI

UNDER SECTION 19 OF HINDU MARRIAGE ACT, 1955. AS IT PROVIDES FOR
DIVORCE.

Section 19 in The Hindu Marriage Act, 1955

[ 19 Court to which petition shall be presented. -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.]
Jurisdiction of the Court If a marriage is solemnised at a place within the municipal limit and the party reside
there only, the family Court would have exclusive jurisdiction to deal with case. The case cannot be transferred
to district court on a ground that the husband resides outside the limits of municipal corporation; Arjun Singhal
v. Pushpa Karwel, AIR 2003 MP 189.

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PETITIONER
 KHALSA COLLEGE OF LAW, CIVIL MOOT, 2021

STATEMENT OF ISSUES

1. Whether wife can file petition for divorce under section 13 of hindu
marriage act,1955?

2. Whether husband is liable for fraud under section 12 of hindu marriage act,
1955?

3. whether wife is entitled to claim maintenance from her husband in case of

divorce under section 24 of hindu marriage act, 1955?

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 KHALSA COLLEG OF LAW, CIVIL MOOT, 2021

ARGUEMENTS OF PETITIONER

ISSUES1. Whether wife can file petition for

divorce under section 13 of hindu marriage
act,1955?

• Petitioner and Respondent marriage was registered at sub registrar office of delhi.

• Respondent starting creating problems to her in U.S.A & was not treating her
properly. He kept her in confinement at home & also harassed her.

• Petition for divorce under Section 13(1) (ia) of the Hindu Marriage Act, 1955 Divorce

(1) Any marriage solemnized, whether before or after the commencement of the 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 solemnization of the marriage, treated the petitioner with cruelty . Cruelty -
A spouse can file a divorce case when he/she is subjected to any kind of mental and physical
injury that causes danger to life, limb and health. The intangible acts of cruelty through
mental torture are not judged upon one single act but series of incidents. Certain instances
like the food being denied, continuous ill treatment and abuses to acquire dowry, perverse
sexual act and such are included under cruelty.

In so many Judgments the Hon"ble Supreme Court and Hon"ble High Court has dissolved the
marriage on the grounds of cruelty.

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 KHALSA COLLEGE OF LAW, CIVIL MOOT, 2021

for example if the girl has filed a false complaint against the whole family members of the
husbands and if the concerned magistrate has discharged the family members in the case of
498a IPC then its a cruelty upon the husband and good grounds for dissolved the marriage.

Supreme Court
NEW DELHI: Although the Hindu Marriage Act prescribes that it shall be lawful to marry again only after dismissal of
an appeal filed by aggrieved party against the decree of divorce, the Supreme Court, however, clarified that second
marriage would not be void if solemnised during the pendency of appeal.

Interpreting section 15 of Hindu Marriage Act, a bench of Justices S A Bobde and L Nageswara Rao said that
incapacity for second marriage for a certain period of time (during the pendency of appeal against divorce )did not
have the effect of treating the former marriage as subsisting and that a marriage contracted during that period will
not be void because it was contracted under an incapacity.

Section 15 says when a marriage has been dissolved by a decree of divorce and either there is no right of appeal
against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having
been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the
marriage to marry again. Section 5(1) of the Act says a marriage may be solemnized between any two Hindus, if
neither party has a spouse living at the time of the marriage.

The apex court set aside Delhi high court which had held that any marriage solemnized by a party during the
pendency of the appeal wherein the operation of the decree of divorce was stayed, would be in contravention of
Section 5 (i) of the Act. It passed the order on an appeal filed by a man challenging HC verdict which had declared his
second marriage void on a plea of his second wife.

The man got married the second time when his appeal against divorce from his first wife was pending in HC. During
pendency of his plea, he had settled the dispute with his first wife and filed an application for accepting the divorce
and sought withdrawal of his appeal. But a fortnight before the HC passed the formal order allowing him to
withdraw his appeal, he got married for the second time.

His second marriage also did not turn out to be blissful and matrimonial discord between the couple led his second
wife to challenge validity of the marriage saying that it was void as it was solemnised during the pendency of case in
HC. A family court dismissed her plea but the HC gave verdict in her favour and declared the marriage void.

MEMORIAL FOR THE

PETITIONER
 KHALSA COLLEG OF LAW, CIVIL MOOT,
2021

“Whenever a statute prohibits a certain thing being done thereby making it unlawful without providing for
consequence of the breach, it is not legitimate to say that such a thing when done is void because that would
tantamount to saying that every unlawful act is void... Consequences of treating a marriage void are so serious and
far reaching and are likely to affect innocent persons such as children born during the period anterior to the date of
the decree annulling the marriage that it has always been considered not safe to treat a marriage void unless the law
so enacts or the inference of the marriage being treated void is either inescapable or irresistible,” the bench said
while quoting its earlier judgement.

MEMORIAL FOR THE

PETITIONER
 KHALSA COLLEGE OF LAW, CIVIL MOOT, 2021

ISSUES2.Whether husband is liable for fraud

under section 12 of hindu marriage act,
1955?
Marriage has been defined as a pure sacrament, particularly in our Indian culture a bond which joins two lives
together till the end of their lives unlike other countries where entering into a marriage is a contract. However, there
are some instances where a certain person in a marital bond cheats with the other person and enters into a new
bond of marriage during the lifetime of the other partner, doing which is also known as committing the offence
Bigamy, the sole reason being it is immoral on the part of the first partner to start a new life at the expense of
happiness and peace of the previous partner in marriage.

• In U.S.A petitioner came to know that respondent already married another woman in
U.S.A in the year 2006, by the name of Ms. Stella & subsequently filed petition for
divorce.
• During the pendency of proceedings, he came to India and completed the marriage with
petitioner.
• respondent never disclosed about there first marriage to petitioner.
• respondent is liable for fraud because he marriage with petitioner under fraud.

Section 12 in The Hindu Marriage Act, 1955

(1) Any marriage solemnised, whether before or after the commencement of this Act, shall be voidable and may be
annulled by a decree of nullity on any of the following grounds, namely: —

(a) that the marriage has not been consummated owing to the impotence of the respondent; or]

(b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or

(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner 13 [was
required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint
(Amendment) Act, 1978 (2 of 1978)*], the consent of such guardian was obtained by force 14 [or by fraud as to the
nature of the ceremony or as to any material fact or circumstance concerning the respondent]; or

(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage—
(a) on the ground specified in clause (c) of sub-section (1) shall be entertained if—

(i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the

MEMORIAL FOR THE

PETITIONER
 KHALSA COLLEG OF LAW, CIVIL MOOT,
fraud had been discovered;2021
or

(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife
after the force had ceased to operate or, as the case may be, the fraud had been discovered;

(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied —

(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;

(ii) that proceedings have been instituted in the case of a marriage solemnised before the commencement of this
Act within one year of such commencement and in the case of marriages solemnised after such commencement
within one year from the date of the marriage; and

(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the
petitioner of the existence of 15 [the said ground].

(i) Non-disclosure of age and factum of having major children by husband at the time of marriage amounts to fraud
and suppression of material facts having bearing on marriage. Marriage founded on fraud from very inception is a
nullity; Sunder Lal Soni v. Smt. Namita Jain, AIR 2006 MP 51.

(ii) Misrepresentation as to the age of the bridegroom made to the mother who acted as an agent and the daughter
consented for the marriage believing the statement to be true. It was held that the consent was vitiated by fraud;
Babui Panmate v. Ram Agya Singh, AIR 1968 Pat 190.

The Indian Penal Code also recognizes also the fact that it is also a fraud on the part of the second wife concerned to
conceal the fact regarding the former marriage and doing such has been made punishable under section 495 of the
IPC as such person committing such act shall be punishable with the imprisonment of either description for a term
which may extend to maximum ten years and shall also be liable to fine.
Exception: This section does not extend to any person whose marriage with such husband or wife has been declared
void by a court of competent jurisdiction,

Nor to any person who contracts a marriage a marriage during the lifetime of former husband or
wife, if such husband or wife, at the time of subsequent marriage shall have been continually
absent from such person for the space of seven years and shall not have been heard of by such
person as being alive within that time, provided the person contracting such subsequent

MEMORIAL FOR THE

PETITIONER
 KHALSA COLLEGE OF LAW, CIVIL MOOT, 2021

marriage shall before such marriage takes place inform the person with whom such a marriage
is contracted of the real state of facts so far as the same are within his or her knowledge.

EXPLANATION OF EXCEPTION:

To repel the Charge imposed under this section the accused may plead in his defense the
following facts:

1. That his 1st marriage was null & void even though he had not obtained a declaration to that
effect U/s 18 of the Divorce Act.
nd
2. Absence of other spouse For a period of 7 years should be established if the 2 marriage
takes place on expiry of 7 years under a bonafide belief based on based on reasonable
grounds that the other spouse is dead no offense under this section shall be deemed to
have been committed.
3. it is established that the accused & his 1st wife are living separately for preceding 7 years,
then it will be Duty of the accused to establish that during That period he was aware of her
nrl

existence. In absence of such a proof from the prosecution, 2 marriage of the accused shall
be regarded as valid.
If these facts are established by the accused he or she shall be protected from the offense
of bigamy.

Husband is liable to fraud as he is still married to his 1 st wife and spouse Is living together and
still without telling his 2nd wife the husband marries the 2nd wife and is liable on fraud

MEMORIAL FOR THE PETITIONER

 KHALSA COLLEG OF LAW, CIVIL MOOT, 2021

ISSUES3. whether wife is entitled to claim

maintenance from her husband in case of
divorce under section 24 of hindu marriage
act, 1955?
• Petitioner is unemployed because she left her job after marriage .
• Now petitioner have not any source of income.
• Court should order respondent to provide maintenance to his wife.

Section 24 in The Hindu Marriage Act, 1955

24 Maintenance pendente lite and expenses of proceedings. —Where in any proceeding

under this Act it appears to the court that either the wife or the husband, as the case may be,
has no independent income sufficient for her or his support and the necessary expenses of the
proceeding, it may, on the application of the wife or the husband, order the respondent to pay
to the petitioner the expenses of the proceeding, and monthly during the proceeding such
sum as, having regard to the petitioner's own income and the income of the respondent, it
may seem to the court to be reasonable: 54 [Provided that the application for the payment of
the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as
possible, be disposed of within sixty days from the date of service of notice on the wife or the
husband, as the case may be.]

(i) As far as maintenance pendente lite and expenses of proceedings are concerned, no
distinction has been made under section 24 of the Act relating to right of a wife for
maintenance preferred under section 12 or 13 of the Act; Sandeep Kumar v. State of
Jharkhand, AIR 2004 Jhar 22.

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(ii) The divorce proceeding has terminated adversely to his client but an appeal is pending.
Whether the appeal ends in divorce or not, the wife's claim for maintenance qua wife
under the definition contained in the explanation (b) to section 125 of the code
continues unless parties make adjustments and come to terms regarding the quantum
or the right to maintenance. It is clear that mere divorce does not end the right to
maintenance; Captain, Ramesh Chander v. Veena Kaushal, AIR 1978 SC 1807.

(i) During the pendency of the divorce proceedings at any point of time if the wife
establishes that she has no sufficient independent income for her support, it is open to
her to claim maintenance pendente lite; Manokaran v. Devaki, AIR 2003 Mad 212.

(ii) Section 24 entitles not only the wife but also the husbandto claim maintenance
pendente lite on showing that he has no independent source of income. However, the
husband will have to satisfy the court that either due to physical or mental disability he
is handicapped to earn and support his livelihood. Held that since the husband was
ablebodied and was not mentally ill and only because his business had closed down, he
could not be granted any maintenance, it being opposed to spirit of section 24 of the
Act; Kanchan v. Kamalendra, AIR 1993 Bom 493.

(i) Pending an application either under Rule 5 of Order 9 or Rule 9 of Order 9 or Rule 13 of
Order 9 of the Code of Civil Procedure a spouse is entitled to maintain an application
under section 24 of Hindu Marriage Act, 1955. The expression "proceedings under the
Act" appearing in section 24 cannot be given a narrow and restrictive meaning; Vinod
Kumar Kejriwal v. Usha Vinod Kejriwal, AIR 1993 Bom 168.

(ii) Section 125(l)(d) has imposed a liability on both the son and the daughter to maintain
their father or mother who is unable to maintain himself or herself; Dr. Vijaya Manohar
Arbat v. Keshireo Rajaram Sawai, AIR 1987 SC 1100.

(iii) The direction by the Civil Court is not a final determination under the Hindu Adoptions
and Maintenance Act but an order pendente lite under section 24 of the Hindu
Marriage Act to pay the expenses of the proceeding, and monthly during the
proceeding such sum as, having regard to the petitioners own income and the income
of the respondent, it may seem to the Court to be reasonable; Captain Ramesh
Chander v. Veena Kaushal, AIR 1978 SC 18

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KHALSA COLLEGE OF LAW, CIVIL MOOT, 2021

 PRAYER CLAUSE

In The Light of the argument advanced & cases & provisions of the statutes cited above, it is
Humbly submitted that the Hon'ble District Court may be pleased to grant the proper relief to
The petitioner & decide the case in the interest of Justice.

Date:

Name: Amritpal Singh

Counsel for petitioner

MEMORIAL FOR THE PETITIONER