Moot 1

UNIVERSITY INSTITUTE OF LAW,
PANJAB UNIVERSITY REGIONAL CENTRE, LUDHIANA
IN THE HON’BLE FAMILY COURT OF DELHI,
ORIGINAL JURISDICTION
UNDER SECTION 7 OF THE FAMILY COURT ACT, 1984
SANDEEP ................................................................................. PETITIONER
v.
ANJALI ...................................................................................RESPONDENT
UPON SUBMISSION TO THE HON’BLE FAMILY COURT OF DELHI.
Srishti Punj
BALLB 9th Semester
Roll No. 37/19F
1
UNIVERSITY INSTITUTE OF LAWS, PANJAB UNIVERSITY REGIONAL CENTRE LUDHIANA
TABLE OF CONTENTS
STATEMENT OF JURISDICTION .............................................................. 7
FACTS OF THE CASE ................................................................................... 8
STATEMENT OF ISSUES ........................................................................... 10
SUMMARY OF ARGUMENTS ................................................................... 11
ISSUE I: WHETHER SANDEEP IS ENTITLED FOR THE DECREE

OF DIVORCE? .......................................................................................... 11
ISSUE II: WHETHER ANJALI IS ENTITLED FOR THE DECREE OF

RESTITUTION OF CONJUGAL RIGHTS? ........................................... 11
ISSUE III: WHETHER THE CUSTODY OF THE CHILD SHOULD BE

GRANTED TO ANJALI? .......................................................................... 11
ARGUMENTS ADVANCED ........................................................................ 12
PRAYER ........................................................................................................ 27
2|M EM O RE ND UM O N T HE BE H AL F OF T H E P E T IT IO N E R
LIST OF ABBREVIATIONS
& And
AIR All India Reporter
Anr. Another
HMA Hindu Marriage Act
Hon’ble Honourable
i.e. That is
No. Number
SC Supreme Court
HC High Court
SCC Supreme Court Cases
u/s Under Section
Vol. Volume
v. Versus
Edn. Edition
Ltd. Limited
BOOKS REFERRED:-
1. Halsbury’s Laws of India, Volume 19, Family Law-I (2nd Ed., 2014), LexisNexis
2. Kusum, cases and material on Family Law-I (3Rd Ed., 2013), LexisNexis.
3. Mulla, Hindu Law (21St Ed., 2010), LexisNexis.
4. Mayne, Hindu Law and Usage (16Th Ed., 2010), Bharat Law House, New Delhi.
5. Mahmood Tahir, Principles of Hindu Law (2014), Universal Law Publishing.
6. Diwan, Paras Family Law (9th Ed., 2010), Allahabad Law Agency.
DATABASES REFERRED :-
1. http://www.scconline.com (last visited on 16th September, 2023).
2. http://www.maupatra.com (last visited on 15th September2023).
3. http://www.lexisnexis.com (last visited on 15th September, 2023).
4. .http://www.judis.nic.in (last visited on 14th September, 2023)
STATUTES:-
1. Hindu Marriage Act, 1955.

2. Family Courts Act 1984.
3. Hindu Minority and Guardianship Act, 1956
LIST OF LAW COMMISSION REPORTS AND INTERNATIONAL CONVENTIONS

REFERRED
1. LAW COMMISSION OF INDIA – 71ST REPORT

2. UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD
LIST OF AUTHORITIES
1. Aboo Baker Haji V. Mamu Koya,(1971)ILR Ker 338 at 345

2. Chetan Dass v. Kamla Devi, AIR 2001 SC 1709
3. A Jaya Chandra V. Aneel Kaur, 2005 (2) SCC 22
4. Samar Ghosh v. Jaya Ghosh,(2007) 4 SCC 511
5. Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) 5 SCC 234
6. Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558
7. Salome v. Dr. Prince D. Immanuel,Madras HC (C.M.A.(MD) Nos.238 of 2012 and
239 of 2012)
8. Sandhya Rani V. Kalyanram Narayanan,(1994) Supp. 2 S.C.C. 588
9. Rishikesh Sharma v. Saroj Sharma, (2007) 2 SCC 263
10. Sanghmitra Singh V. Kailash Chandra Singh, AIR 2001 Ori 151
11. Anita Kuchba V. KR Kuchba,AIR 2003 Bom 273
12. Rakesh Raman v. Kavita, 2023 SCC OnLine SC 497
13. Ashok Hurra v. Rupa Bipin Zaveri,(1997) 4 SCC 226
14. Shilpa Sailesh vs Varun Sreenivasan, 2023 (6) SCALE 402
15. Umed v. Raj Singh, A.I.R. 1975 S.C. 43 at 58
16. Surinder Kaur v. Gurdeep Singh ,1973 P & H 134
17. Ramesh Chandra v. Savitri,AIR 1995 SC 851
18. Harvinder Kaur v. Harminder Singh,(2012) 1 SCC (Civ) 437
19. Gurdev Kaur V. Servant Singh,AIR 1959 P H 162
20. Annie Thomas v. Pathrose ,(1988) 2 KLT 237
21. Santosh Kumar Pandey v. Ananya Pandey, AIR 2013 Chh 95.
22. Sadhu v. Jagdish, 1967 Punj 139
23. Itwari v. Asghari, AIR 1960 All 68
24. Kharak Singh v. The State Of U. P. & Others, 1963 AIR 129
25. Maya Devi v. Kailash Chander, (2014) 5 RCR (Civil) 96
26. Rakesh Raman v. Kavita, 2023 SCC OnLine SC 497
27. T. Sareetha v. T. Venko Subbaiah ,AIR 1983 AP 356
28. Anita Jain V. Rajendra Jain,AIR 2010 Raj 56 at 58
29. Ojaswa Pathak v. Union of India,W.P.(C) No.-000250 / 2019
30. Sunil Kumar Sharma v. Preeti Sharma, 2022 SCC OnLine Del 1263
31. Jahgirdar v. Chethana Ramatheertha, AIR 2004 SC 152
32. Dilip Goswami v. State of Tripura, W.P. (HC) No. 05 of 201

33. R. V. Srinath Prasad vs. Nandamuri Jayakrishna, (2001) 4 SCC 71
34. Nil Ratan Kundu vs. Abhijit Kundu, ((2008) 9 SCC 413
35. Sheila B. Das v. P.R. Sugasree, (2003) 3 SCC 62
36. Smriti Madan Kansagra v. Perry Kansagra,Matrimonial Appeal (F C) No. 30 of 2018;
Civil Miscellaneous Application No.49507 of 2018
37. Anuj Chaturvedi v. Jyothi,Special Leave to Appeal (C) Nos. 6303 of 2017. D/d.
4.10.2019
38. Tatineni Mayuri vs. Edara Baldev,Civil Appeal Nos. 2471-2473 Of 2016
39. Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 84
40. Murarilal Sidana V. Anita, AIR 2013 Raj 100
41. Mausami Moitra Ganguli v. Jayant Ganguli, (2008) 7 SCC 67
42. J. Selvan v. N. Punidha, 2007 SCC OnLine Mad 63
43. Dhanwanti Joshi V. Madhau Unde ,1988) 1 SCC 112
44. Satyendra Nath Maitra v. Balaram Chakraborty, AIR 1981 Cal 20
45. Awadhoot V. Mohini (1995) DMC 621
STATEMENT OF JURISDICTION
The Petitioner herein has approached the Hon’ble Family Court of Delhi by invoking Section
7 of the Family Courts Act, 19841 in which the Hon’ble Court has the jurisdiction.
The present memorandum sets forth the facts, contentions and arguments.
1
Jurisdiction.-
(1) Subject to the other provisions of this Act, a Family Court shall- -(1) Subject to the other provisions of this
Act, a Family Court shall-"
(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court
under any law for the time being in force in respect of suits and proceedings of the nature referred to in the
explanation; and
(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as
the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court
extends. Explanation.-The suits and proceedings referred to in this sub-section are suits and proceedings of
the following nature, namely:-
(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the
marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal
rights or judicial separation or dissolution of marriage;
FACTS OF THE CASE
1. Sandeep, a Hindu who hails from New Delhi, is a software engineer by profession.
After completing his studies, he secured a job with one of the top multinational
corporations. Anjali, a Hindu born and brought up in New Delhi. She was pursuing
her MBBS meanwhile Her father expressed his last wish was to see her get
married.Even though she was not mentally prepared to get married, she gave in to her
father's wishes and consented to getting married.
2. Sandeep and Anjali got married in 2000 in New Delhi as per the Hindu Marriage Act,
1955. After marriage, Anjali continued her studies but found it difficult to balance
her household duties with her education.
3. Sandeep was soon promoted and got a job offer from the Silicon Valley in USA and
Anjali by that time had completed her education and landed a resident position at a
local hospital. But Anjali was forced to move to the USA with Sandeep. In order to
practise medicine in the states she had to clear the medical board which she eventually
did. Soon after, she realises that it is the appropriate time for her to have a child but
Sandeep opposes it given their financial instability.
4. After thoroughly settling down, they start trying to establish a family, but for some
reason it doesn't work out for them. They go to a doctor. it gives them no results.
After much deliberation, the family has decided to travel to India, have their child
deliveredthrough surrogacy, and then bring him or her to the United States.
5. In 2013 after arriving in India they approached a near relative to act as a surrogate
mother. They are unable to convince blood relatives to carry their child. In
February,an artificial fertilisation was carried out on the surrogate mother Ms Priva
selected to carry the child. At the time the fertilization procedure was being executed
it was decided. verbally between Sandeep .Thereafter Sandeep and Anjali returned to
the USA.
6. In 2014, a baby girl was born and the couple returned to India. The baby, being a pre-
mature one, was advised not to travel for the first few months. Anjali leaves for the
USA for work whereas Sandeep stays back taking care of the baby, and owing to the
time he spent with Priya and the baby he started developing emotional dependence on
Priya and started ignoring Anjali.
7. Anjali decides to visit India to meet their daughter and clarify things with Sandeep,
but it leads to heated arguments and fights between them. Sandeep reaches the
conclusion that the relationship he had with Anjali was now over.
STATEMENT OF ISSUES
The following questions are presented before this Hon’ble Court for adjudication in the
instant matter.
1. WHETHER SANDEEP IS ENTITLED FOR THE DECREE OF DIVORCE?
2. WHETHER ANJALI IS ENTITLED FOR THE DECREE OF

RESTITUTION OF CONJUGAL RIGHTS?
3. WHETHER THE CUSTODY OF THE CHILD SHOULD BE GRANTED TO

ANJALI?
10 | M E M O R E N D U M O N T H E B E H A L F O F T H E P E T I T I O N E R
SUMMARY OF ARGUMENTS
ISSUE I: WHETHER SANDEEP IS ENTITLED FOR THE DECREE OF DIVORCE?
The counsel for the petitioner most humbly submits before this Court that petitioner is
entitled to file for divorce as the matrimonial bond is irretrievably broken down,not being
alive anymore. In order to protect the sanctity of the marriage, to reduce the number of
unhappy marriages and to let the couple live peacefully for the rest of their lives without any
further mental agony, it is necessary to dissolve such a marriage and thus, the case at hand as
well.

It is humbly submitted before this Hon’ble Court that the respondent is not entitled for
restitution of conjugal rights as petitioner has the reasonable cause to withdraw from the
society of her. It is just the mockery of law and wasting the time of this Hon’ble court. Thus
the petition by the respondent is nothing but a point in keeping a marriage in a state of limbo
and leading towards the path of matrimonial rupture. It would not be logical and decent to
provide a decree in favour of the respondent.
ISSUE III: WHETHER THE CUSTODY OF THE CHILD SHOULD BE GRANTED

TO ANJALI?
It is submitted before this Hon’ble Court that the custody of the child should be with the
petitioner as the welfare of the child will be ensured more by the father than by the
respondent in the present case. If the custody of the child is given to her, it will amount to
detrimental to his physical and mental welfare. When the child has developed a certain level
of mental, physical and emotional attachment with the father, it would be traumatizing for the
child if she is removed from the father's custody.
ARGUMENTS ADVANCED
ISSUE I: WHETHER SANDEEP IS ENTITLED FOR THE DECREE OF

DIVORCE?
Marriage is the highest order social institution determining the relationship of human beings.
In Hindu law, marriage is “a religious sacrament in which a man and a woman are bound in
a permanent relationship for the physical, social and spiritual purposes of dharma,
procreation and sexual pleasure.”2
Justice Krishna Iyer made the following observations
Trivial differences get dissolved in course of time and may be treated as teething troubles of
early matrimonial adjustment. The stream of life lived in married mutuality washes away the
smaller pebbles but that is not the case when the incompatibility of minds breaks up the flow
of stream. In such cases the breakdown of marriage is evident. So we recognise the fact and
accord divorce.3
"Divorce is the golden key to the legal cage of marriage". The term "divorce" comes from the
Latin word divortium which means to turn aside; to separate. It is the legal cessation of a
matrimonial bond.
WHETHER IT IS FAIR AND JUST TO GRANT DIVORCE ONLY ON THE BASIS

OF THE GROUNDS MENTIONED IN SECTION 13 OF THE HINDU MARRIAGE
ACT, 1955?
It cannot be possible to include all possible scenarios when it comes to a rigidly framed
provision. Especially when it comes to divorce, owing to the changes in the social norms,
having set grounds, only under which divorce can be granted wouldn't serve the purpose of
law. Thus, Section 13 must be given a wider scope to provide justice. The Law Commission
2
Whiterosead, Hindu marriage: A sacrament or contract or both,
(Sept.30,2022,1:00PM),https://indianlawnews.wordpress.com/2016/04/07/hindu-marriage-a-sacrament-or-
contract-or-both/
3
Aboo Baker Haji V. Mamu Koya,(1971)ILR Ker 338 at 345
in its 71st Report, submitted in 1978, dealt with the concept of irretrievable breakdown of
marriage. It held that restricting the ground of divorce to a particular offence or matrimonial
disability causes injustice in those cases where the situation is such that although none of the
parties is at fault, or the fault is of such a nature that the parties in the marriage do not wish to
divulge it, yet there has arisen a situation in which the marriage cannot be worked; that is
where the marriage has all external appearances of marriage but none of the reality.
In such circumstances there is hardly any utility in maintaining the marriage as a façade,
when the emotional and other bonds which are the essence of marriage have disappeared.
After the marriage has ceased to exist in substance and in reality, there is no reason for
denying divorce. In a situation like this, the parties alone can decide whether their mutual
relation is emotionally and socially real and strong. Divorce should be seen as a solution and
a way out of a difficult situation.
In Chetan Dass v. Kamla Devi4The Supreme Court points out that matrimonial matters are
matters of delicate human and emotional relationship. It demands mutual trust, regard,
respect, love and affection with sufficient play for reasonable adjustments with the spouse.
Thus, in the present case having lost the very essence of marriage which is emotional
connection and reliability it would be impossible for the parties to stay together happily
hereafter. Thus, denying them divorce would not only make the petitioner suffer but also the
respondent in the long run. Here comes into play the doctrine of public interest and the court
should decide taking into consideration the interest of both parties not only in the present but
in the long run as well.
IRRETRIEVABLE BREAKDOWN OF MARRIAGE AS A GROUND FOR

DIVORCE.
Irretrievable breakdown of marriage is a situation where the couple can no longer live
together as husband and wife. One partner or both must prove to the court that the marriage
broke down so badly that there is no reasonable chance of getting back together.
The Supreme Court has with a view to do complete justice and shorten agony of the parties
engaged in long drawn battle, directed dissolution of marriage. In fact, these were exceptional
4
Chetan Dass v. Kamla Devi, AIR 2001 SC 1709
measures taken up by the SC as divorce can be granted only on the grounds laid down under
Section 13. But it did so as it realised the importance of mental agony and pressure that the
parties have to undergo for the rest of their lives if not for this order of divorce.
In A Jaya Chandra V. Aneel Kaur5, the Supreme Court examined such cases. And after
discussing the facts concluded that when the respondent gives priority to her profession over
her husband's freedom it points unerringly at disharmony, diffusion and disintegration of
marital unity, from which the Court can deduce irretrievable breaking of marriage. The Court
found the marriage irretrievably broken down and granted divorce to the husband.
In Samar Ghosh v. Jaya Ghosh6the court held that the marriage was beyond repair. The
marriage had become a fictitious one that was supported by a legal tie; hence, the law in such
cases does not serve the sanctity of marriage as it may lead to mental cruelty. Therefore, it is
humbly submitted before the court that in order to protect the sanctity of marriage, to reduce
the number of unhappy marriages and to prevent from getting wasted the lives of the husband
and wife as an individual, to dissolve such marriages.
Similarly, in the case of Hitesh Bhatnagar v. Deepa Bhatnagar7, it was opined by this
Court that courts can dissolve a marriage that is irretrievably broken down only when it is
impossible to save the marriage, and there is no chance by any efforts.
In Naveen Kohli v. Neelu Kohli8The Court observed that once the marriage has broken
down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it
would be harmful to society and injurious to the parties.
The court in the case of Salome v. Dr. Prince D. Immanuel9, held irretrievable breakdown
of marriage a valid ground. Furthermore, the court also dismissed the ground for restitution of
conjugal rights.
5
A Jaya Chandra V. Aneel Kaur,2005 (1) CTC 215 (SC) : 2005 (2) SCC 22
6
Samar Ghosh v. Jaya Ghosh,(2007) 4 SCC 511
7
Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) 5 SCC 234
8
Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558
9
Salome v. Dr. Prince D. Immanuel,Madras HC (C.M.A.(MD) Nos.238 of 2012 and 239 of 2012)
In Sandhya Rani v. Kalyanram Narayanan10, the court reiterated and took the view that
since the parties are living separately for more than three years and have no doubts in our
mind that the marriage between the parties has irretrievably broken down. There is no chance
whatsoever of their coming together. Therefore, the court in such a case granted the decree of
divorce.
In the case of Rishikesh Sharma v. Saroj Sharma11, this Court observed that the respondent
wife was living separately from the year 1981 and the marriage has broken down irretrievably
with no possibility of the parties living together again. The Court further observed that it will
not be possible for the parties to live together and therefore there was no purpose in
compelling both the parties to live together. Therefore, the best course was to dissolve the
marriage by passing a decree of divorce so that the parties who were litigating since 1981 and
had lost valuable part of life could live peacefully in remaining part of their life. The Court
further observed that her desire to live with her husband at that stage and at that distance of
time was not genuine.
In Sanghmitra Singh v. Kailash Chandra Singh12, a husband sought divorce.the wife

informed the court that the husband had already clandestinely married another lady and a
criminal case had already been filed against him. Granting divorce,the court observed,
“whether the husband has married for a second time or not, it is clear that the marriage has
irretrievably broken down.”
In Anita Kuchba v. KR Kuchba13, Even though husband's allegation of cruelty against the
wife were not established yet divorce was granted to him and one of the main factors that
weighed with the court was that the husband has married again and this according to the court
was the “factors sufficient to indicate that some other lady has walked into the life of
respondent under these circumstances one can fairly reach to a conclusion that there is
irretrievable breakdown of marriage of parties.
10
Sandhya Rani V. Kalyanram Narayanan(1994) Supp. 2 S.C.C. 588
11
Rishikesh Sharma v. Saroj Sharma, (2007) 2 SCC 263
12
Sanghmitra Singh V. Kailash Chandra Singh,AIR 2001 Ori 151
13
Anita Kuchba V. KR Kuchba,AIR 2003 Bom 273
Recently the Supreme Court in Naveen Kohli v. Neelu Kohli14, has recommended an
amendment to the Hindu Marriage Act, whereby either spouse can cite irretrievable
breakdown of marriage as a reason to seek the divorce. Expressing the concern that divorce
could not be granted in a number of cases where marriages were virtually dead due to the
absence of the provision of irretrievable breakdown, the court strongly advocated
incorporating this concept in the law in view of the change of circumstances. The profound
reasoning is that in situations when there is absolutely no chance to live again jointly or when
it is beyond repair, in such a case it would be futile to keep the marital tie alive. Here the
ground of irretrievable breakdown is really needed. If any of the party to the marriage is not
ready to live with the other party the relationship will not be a happy one. Stretching such a
relationship will do no good, rather will develop hatred and frustration among the parties for
each other.
While the Court in Rakesh Raman v. Kavita15 noticed that Irretrievable breakdown of a
marriage is not a ground for dissolution of marriage, under the Hindu Marriage Act, 1955, but
a marriage can be dissolved on the ground of cruelty, it further observed that,
“A marital relationship which has only become more bitter and acrimonious over the years,
does nothing but inflicts cruelty on both the sides. To keep the façade of this broken marriage
alive would be doing injustice to both the parties. A marriage which has broken down
irretrievably, in our opinion spells cruelty to both the parties, as in such a relationship each
party is treating the other with cruelty.”
In Ashok Hurra v. Rupa Bipin Zaveri16, Court was confronted with a situation where the
marriage had fallen apart and the couple even after residing separately for thirteen years, the
parties were not agreeable to a divorce by mutual consent. This was in spite of the fact that
the husband had remarried and had a child. This Court was of the view that considering the
cumulative effect of various factors and the marriage being dead, no useful purpose, both
emotionally and practically, would be served in postponing the inevitability and prolonging
the agony of the parties or their marriage and, therefore, the curtain should be rung down.
14
Naveen Kohli v. Neelu Kohli,AIR (2006) SC 1675
15
Rakesh Raman v. Kavita, 2023 SCC OnLine SC 497
16
Ashok Hurra v. Rupa Bipin Zaveri,(1997) 4 SCC 226
In Shilpa Sailesh v. Varun Sreenivasan17,court held that the marriage has irretrievably
broken down is to be factually determined and firmly established. For this, several factors are
to be considered such as :
● when the parties had last cohabited;

● the nature of allegations made by the parties against each other and their family
members;
● cumulative impact on the personal relationship;
● The period of separation should be sufficiently long, and anything above six years or
more will be a relevant factor.
● the economic and social status of the parties
● whether the parties have any children, their age, educational qualification, and
● whether the other spouse and children are dependent, in which event how and in what
manner the party seeking divorce intends to take care and provide for the spouse or
the children.
● Question of custody and welfare of minor children,
Therefore, it is humbly submitted before this Hon’ble Court that in order to protect the
sanctity of marriage, to reduce the number of unhappy marriages and to prevent from getting
wasted the precious years of the life of the spouses, it is necessary to dissolve such a marriage
and thus in the case at hand as well. Now that this case has been pending for almost 9 years
now, from 2014 to 2023, and the fact that they haven't started living together shows that the
marriage is already dead and reiterates the concept of irretrievable breakdown of marriage,
which can again be taken into consideration before granting them divorce.
17
Shilpa Sailesh v. Varun Sreenivasan, 2023 (6) SCALE 402

The remedy of restitution has been criticized as most inhuman and obnoxious. This
anachronistic remedy has been called even worse than tyranny and slavery.
As P.N. Bhagwati, J., has judiciously observed: "to perpetuate an error is no heroism. To
ratify it, is the compulsion of judicial conscience"18
Section 9 runs as under: 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, 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 a reasonable excuse for
withdrawal from the society, the burden of proving reasonable excuse shall be on the person
who has withdrawn from the society."19
For restitution, the following three conditions must be satisfied as mentioned in Surinder
Kaur v. Gurdeep Singh20 ,
1. The respondent has withdrawn from the society of the petitioner without any reasonable
excuse,
2. The court is satisfied about the truth of the statement in the petition which is related to
proof
3. There is no legal ground why the relief should not be granted
4. There must be a valid marriage ought to be subsisting to file a restitution petition.
18
Umed v. Raj Singh, A.I.R. 1975 S.C. 43 at 58
19
Hindu Marriage Act,1955,s9
20
Surinder Kaur v. Gurdeep Singh ,1973 P & H 134
In the case of Ramesh Chandra v. Savitri21, the Supreme Court held that when marriage is
dead emotionally and practically and there is no chance of its being retrieved continents of it
would be cruelty.
According to the ruling in the case of Harvinder Kaur v. Harminder Singh22 it is obvious
that a marriage is ending if there is a strip along with physical separation from each other.
Given that the respondent and petitioner have lived apart for some time and there is no longer
an emotional dependence, we can clearly identify the physical and mental aspects of
separation in this case.
In Gurdev Kaur v. Servant Singh23, it was decided that each case specific facts would
determine how to apply the standard of what is reasonable under the section.
As observed in Annie Thomas v. Pathrose24, What is "reasonable excuse” depends upon the
facts and circumstances of each case. "Reasonable excuse" should be the "just excuse" or
"rational excuse". It must be sufficiently weighty and convincing. It should be more than a
mere whim. All the same it means that it should be in accord with reason, just and fair, in all
the facts and circumstances of the case.
The sine qua non for maintaining an application under Section 9 is the existence of
relationship of husband and wife having no dispute in their existence of marriage between
them for seeking decree for restitution of conjugal rights as held in case. 25The Punjab and
Haryana High Court rightly observed that a reasonable excuse is something less than a
justification and something more than mere fad, whim or brain wave."26
21
Ramesh Chandra v. Savitri,AIR 1995 SC 851
22
Harvinder Kaur v. Harminder Singh,(2012) 1 SCC (Civ) 437
23
Gurdev Kaur v. Servant SinghAIR 1959 P H 162
24
Annie Thomas v. Pathrose (1988) 2 KLT 237
25
Santosh Kumar Pandey v. Ananya Pandey, AIR 2013 Chh 95.
26
Sadhu v. Jagdish, 1967 Punj 139
REASONABLE GROUNDS FOR REFUSING TO UPHOLD THE DECREE

RESTITUTION OF CONIUGAL RIGHTS.
It was upheld by the court in Itwari v. Asghrai27 that forcing one spouse to live with the
other constitutes cruelty, hence the decree was rejected. When a court upholds the decree, it
exerts pressure on the spouse who has isolated themselves from the other and serves as a
form of mental restriction for the other spouse.
The rationale used in the case of Kharak Singh v. State of U.P. & Ors. 28, where the court
stated that every person has the freedom to be either married or not, to be always free from an
undesired state of overreach in such personal issues, might be used to justify this.
In the case at hand, the constant heated disputes caused the marriage to degenerate and
sapped the couple's emotional dependence on one another. The willingness of both parties is
crucial, and if neither can live their lives as husband and wife again, any attempt to force the
two together will result in social ills and disruptions of the family's mental peace and order,
giving the child a poisonous home environment.
According to Maya Devi v. Kailash Chander29, the granting of an RCR ruling would violate
a person's integrity and domestic ties. Despite being backed by a legal obligation, the
marriage becomes a fantasy. The law in these situations does not uphold the sanctity of
marriage by refusing to sever that relationship; rather, it displays minimal concern for the
mental component of the parties.
“The long separation and absence of cohabitation and the complete breakdown of all
meaningful bonds and the existing bitterness between the two, has to be read as cruelty under
Section 13(1) (ia) of the 1955 Act.”30
27
Itwari v. Asghari, AIR 1960 All 68
28
Kharak Singh v. The State Of U. P. & Others, 1963 AIR 129
29
Maya Devi v. Kailash Chander, (2014) 5 RCR (Civil) 96
30
Rakesh Raman v. Kavita, 2023 SCC OnLine SC 497
T. Sareetha v. T. Venko Subbaiah31, CHOUDARY J. termed. the provision of restitution as

'uncivilize "barbarous', 'engine of oppression' and assailed s. 9 as being violative Arts. 14, 15,
19 and 21 of the Constitution of India.
“To live with a man or woman you hate is a slavery but to be compelled to submit to his or
her embraces is a misfortune too great even for slavery itself”32
In March 2019, the Hon’ble Supreme Court of India admitted a writ petition of Ojaswa
Pathak v. Union of India33 challenged the constitutionality of the remedy of restitution of
conjugal rights present under multiple family laws including Section 9 of Hindu Marriage
Act, 1955.
Recently, in 2020 Supreme Court issued notice to the Attorney General on a plea challenging
the constitutional validity of restitution of conjugal rights under the Hindu Marriage Act and
Special Marriage Act.
“Husband and wife are two pillars of the family, when one pillar gives up and puts all the
burden on the other pillar, then it cannot be expected that one pillar will single-handedly hold
the house together34
31
T. Sareetha v. T. Venko Subbaiah ,AIR 1983 AP 356
32
Anita Jain V. Rajendra Jain,AIR 2010 Raj 56 at 58
33
Ojaswa Pathak v. Union of India,W.P.(C) No.-000250 / 2019
34
Sunil Kumar Sharma v. Preeti Sharma, 2022 SCC OnLine Del 1263
ISSUE III: WHETHER THE CUSTODY OF THE CHILD SHOULD BE PASSED IN

FAVOUR OF ANJALI?
According to Section 6 of the Hindu Minority and Guardianship Act, 1956, a Hindu minor's
natural guardian is their father, followed by their mother, with the provision that custody of a
minor under the age of five years will typically reside with their mother.
The Supreme Court ruled in Jahgirdar v. Chethana Ramatheertha35 that it does not agree
with the High Court's general judgments that the mother is a better parent than the father
when it comes to keeping custody of the child.
Section 17 of the Guardians and Wards Act, 1890 describes guidelines to be considered
consistently with law to which the minor is subject in appointing of the guardian, for welfare
of the minor.
"In determining what will be in the best interests of the minor, the Court shall have regard to
the minor's age, gender, and religion, the character and capacity of the proposed guardian and
his proximity to the minor, the wishes, if any, of a deceased parent, and any current or prior
relationships of the proposed guardian with the minor or his property."
In accordance with Section 2(9) of the Juvenile Justice Act of 200036, "best interest of
child" refers to a child's rights and needs, identity, social well-being, and physical, emotional,
and intellectual development as the foundation for every decision made about the kid.
The Petitioner humbly states that the Child Custody Cases in India Rely on the concept of
“Best Interest of the Child / Welfare of the Child.” Article 3.137 of the United Nations
Convention on the Rights of the Child, 1989 (Convention) requires
“the best interests of the child” to be the “primary consideration” “in all actions concerning
children, whether undertaken by public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies.”
35
Jahgirdar v. Chethana Ramatheertha, AIR 2004 SC 152
36
Section 2(9), The Juvenile Justice Act, 2000
37
The Government of India has acceded on the 11th December, 1992 to the Convention on the Rights of the
Child, adopted by the General Assembly of United Nations, which has prescribed a set of standards to be
adhered to by all State parties in securing the best interest of the child.
The court asserted strongly that a child is a vulnerable human being in the Dilip Goswami v.
State of Tripura38. He or she is not an inanimate thing. It is not in the child's best interests to
essentially remove him from the milieu in which he is growing up and place him in a
completely unfamiliar situation. The future of the child is of utmost importance and
competing demands of the parties will have to yield to the child's interest.
When the question of custody arises, the primary factor of consideration by the courts will be
the welfare of the child, which includes a safe environment for the upbringing of the child.
The ethical background and mental condition of the applicant is important to be considered
while giving custody of the minor child. A balance has to be struck between the attachment
and sentiments of the parties towards the minor children and the primary aspect of the
welfare of the minors, which is of paramount importance.39
The father has been actively involved in all the affairs and matters of the child since birth. It
is pertinent to note that the father chose to stay back and care for the child when the doctors
advised against travelling with the newborn. The father, in spite of being a workaholic,
adjusted his lifestyle and made a choice to stay back with the child.
When the child has developed a certain level of mental, physical and emotional attachment
with the father, it would be traumatising for the child if she is removed or transferred from
the father's custody. Granting sole custody to the mother means that the child will no longer
be exposed to the love and affection of the father.
Apex Court also held in the case of Nil Ratan Kundu v. Abhijit Kundu40 that the welfare
of a child is not to be measured merely in terms of money or physical comfort, but the word
“welfare” must be taken in its widest possible sense so that the tie of affection cannot be
disregarded.
The court observes parens patriae jurisdiction in child custody matters i.e the problem has to
be solved with a human touch where the paramount consideration is the welfare of the minor
child.41The courts must not allow the determination to be clouded by the inter se disputes
38
Dilip Goswami v. State of Tripura, W.P. (HC) No. 05 of 201
39
R. V. Srinath Prasad v. Nandamuri Jayakrishna, (2001) 4 SCC 71
40
Nil Ratan Kundu v. Abhijit Kundu, ((2008) 9 SCC 413: AIR 2009 SC (Supp) 732)
between the parties, and the allegations and counter¬-allegations made against each other
with respect to their matrimonial life.42
After all, the Supreme Court in the case of Anuj Chaturvedi v. Jyothi,43held that the child
has the right to receive love and affection from both the parents.
In the present case at hand, the child born to Mr. Sandeep and Mrs. Anjali via the surrogate
mother Ms. Priya has been under the care and observation of the father since day 1. Over the
years, the child would have naturally developed a strong bond of emotional attachment with
the father and transferring or removing a child of tender age from the father's custody in a
hasty manner will have some adverse effects on the mental and the emotional well-being of
the child.
In the case of Rosy Jacob v. Jacob A. Chakramakkal44, the court determined that there
was no justification to transfer the child's custody from his father to his mother because he
was in good physical and mental health, was doing well in school, and had not been
negatively impacted by his time with the father.
In Murarilal Sidana V. Anita45, order of custody of two teenaged siblings in favor of the
mother as against paternal grandparents by the trial court on the assumption that mother
always has the interest of her children in minds was reversed in appeal. The court held that
such presumption is "neither legal nor warranted by the evidence on record". Even visitation
rights were not given to the mother as this could cause emotional and psychological trauma to
the children who would have to comply with an order that they are absolutely uncomfortable
with.
42
Smriti Madan Kansagra v. Perry Kansagra,Matrimonial Appeal (F C) No. 30 of 2018; Civil Miscellaneous
Application No.49507 of 2018
43
Anuj Chaturvedi v. Jyothi,Special Leave to Appeal (C) Nos. 6303 of 2017. D/d. 4.10.2019
44
Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 84
45
Murarilal Sidana V. Anita, AIR 2013 Raj 100 : 2013 RLW (1) Raj 795
In the case of Mausami Moitra Ganguli v. Jayant Ganguli46, held that it was not desirable
to disturb the custody of the child and, therefore, the order of the High Court giving his
exclusive custody to the father with visitation rights to the mother was maintained.
In this instance, the father has been watching over and taking care of the child since birth. A
child of such a young age would have naturally formed a close link and emotional attachment
with the father over time and transferring or removing the child from the father's custody
abruptly will have negative impacts on the child's mental and emotional health.
The Respondent left right away for the USA since her work was of higher priority to her.
Since birth, the child had been living with the Petitioner. From the very beginning, the
petitioner met the child's necessities. Additionally, the petitioner can very well support the
child financially, in addition to offering emotional and moral support for the child's
development. The child clearly has a stronger bond and fiduciary relationship with the
petitioner, which is crucial for the child's growth.
The Madras High Court ruled in J. Selvan v. N. Punidha47 that continuity and quality of
attachment are crucial factors in determining a child's custody.
The apex court in Dhanwanti Joshi V. Madhau Unde48has held that the welfare of the child
is not to be measured by money or by physical comfort only. The word welfare must be taken
in its widest sense. The moral and religious welfare must be considered as well as physical
well-being. Nor can the ties of affection be disregarded... welfare is an all-encompassing
word... However, while material considerations have their place, they are secondary matters.
More important are the stability and security, the loving and understanding care and
guidance, the warm, and compassionate relationships that are essential for the full
development of the child's own character, personality and talents.
Furthermore, the Respondent has struggled to manage her education with her marital
responsibilities. Whether the Respondent will be able to devote enough time to the child's
welfare and development given her demanding job is important to ask. She might be unable
46
Mausami Moitra Ganguli v. Jayant Ganguli, (2008) 7 SCC 67
47
J. Selvan v. N. Punidha, 2007 SCC OnLine Mad 63
48
Dhanwanti Joshi V. Madhau Unde ,1988) 1 SCC 112
to give the child the needed care and attention. The Respondent has no personal connection to
the child. It should also be mentioned that she only decided to go back to India after realising
her husband was avoiding her with no prior thought of the child.
As the child has been accustomed to one environment for a considerable amount of time, a
sudden, abrupt change in that environment may not be beneficial to the child as was
determined in the Satyendra Nath Maitra v. Balaram Chakraborty.49
As a result, it is argued before the court that the petitioner should retain custody because there
are no reasonable grounds for the court to award the respondent custody of the child and that
the Petitioner would be able to better provide to the child's need personally.
In Awadhoot V. Mohini50, the Madhya Pradesh High Court stated that while deciding the
custody of children pending the decision of matrimonial petition, the Court has to be
circumspective and has to consider the human feelings, emotions and most importantly the
welfare of the child who is the subject matter of the claim for the custody. He is not a
commodity. His tender mind has to be considered and his welfare should be given paramount
consideration.
Thus,it is most humbly submitted before this bench that if sole custody is granted to Mrs.
Anjali, it will have adverse effects over the physical, mental and emotional well-being of the
child. The child has spent the last 10 years of her life living under the care and guidance of
the father. The child is of a very tender age and getting accustomed to a completely different
environment and surrounding will be challenging. The child has been doing satisfactorily
well under the care and guidance of the father. If sole custody is granted to Mrs. Anjali, it
will not serve the best interest of the child.
49
Satyendra Nath Maitra v. Balaram Chakraborty, AIR 1981 Cal 20
50
Awadhoot V. Mohini (1995) DMC 621
PRAYER
“Justice, being destroyed, will destroy and being preserved, will preserve. Therefore it must
never be violated.” -Manu
Wherefore, in light of the facts stated, issues raised, authorities cited and arguments
advanced, the Hon’ble Family Court of Delhi may be pleased to adjudge & declare that:
1. Pass the decree of divorce against the Respondent

2. The petition regarding Restitution of Conjugal Rights be dismissed.
3. Pass the order of custody in favour of the Petitioner.
AND/OR
Pass any other order that it may deem fit in the interest of justice, equity & good conscience.
For this act of kindness, the Petitioner shall be duty bound forever to pray.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
Sd/-
COUNSELS FOR THE PETITIONER

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UNIVERSITY INSTITUTE OF LAW,

PANJAB UNIVERSITY REGIONAL CENTRE, LUDHIANA

IN THE HON’BLE FAMILY COURT OF DELHI,

UNDER SECTION 7 OF THE FAMILY COURT ACT, 1984

SANDEEP ................................................................................. PETITIONER

UPON SUBMISSION TO THE HON’BLE FAMILY COURT OF DELHI.

BALLB 9th Semester

Roll No. 37/19F

STATEMENT OF JURISDICTION .............................................................. 7

FACTS OF THE CASE ................................................................................... 8

STATEMENT OF ISSUES ........................................................................... 10

SUMMARY OF ARGUMENTS ................................................................... 11

ISSUE I: WHETHER SANDEEP IS ENTITLED FOR THE DECREE

ISSUE II: WHETHER ANJALI IS ENTITLED FOR THE DECREE OF

ISSUE III: WHETHER THE CUSTODY OF THE CHILD SHOULD BE

ARGUMENTS ADVANCED ........................................................................ 12

AIR All India Reporter

HMA Hindu Marriage Act

SCC Supreme Court Cases

u/s Under Section

3. Mulla, Hindu Law (21St Ed., 2010), LexisNexis.

5. Mahmood Tahir, Principles of Hindu Law (2014), Universal Law Publishing.

1. http://www.scconline.com (last visited on 16th September, 2023).

2. http://www.maupatra.com (last visited on 15th September2023).

3. http://www.lexisnexis.com (last visited on 15th September, 2023).

4. .http://www.judis.nic.in (last visited on 14th September, 2023)

1. Hindu Marriage Act, 1955.

LIST OF LAW COMMISSION REPORTS AND INTERNATIONAL CONVENTIONS

1. LAW COMMISSION OF INDIA – 71ST REPORT

1. Aboo Baker Haji V. Mamu Koya,(1971)ILR Ker 338 at 345

32. Dilip Goswami v. State of Tripura, W.P. (HC) No. 05 of 201

FACTS OF THE CASE

1. WHETHER SANDEEP IS ENTITLED FOR THE DECREE OF DIVORCE?

2. WHETHER ANJALI IS ENTITLED FOR THE DECREE OF

3. WHETHER THE CUSTODY OF THE CHILD SHOULD BE GRANTED TO

ISSUE I: WHETHER SANDEEP IS ENTITLED FOR THE DECREE OF DIVORCE?

ISSUE II: WHETHER ANJALI IS ENTITLED FOR THE DECREE OF

ISSUE III: WHETHER THE CUSTODY OF THE CHILD SHOULD BE GRANTED

ISSUE I: WHETHER SANDEEP IS ENTITLED FOR THE DECREE OF

Justice Krishna Iyer made the following observations

WHETHER IT IS FAIR AND JUST TO GRANT DIVORCE ONLY ON THE BASIS

IRRETRIEVABLE BREAKDOWN OF MARRIAGE AS A GROUND FOR

In Sanghmitra Singh v. Kailash Chandra Singh12, a husband sought divorce.the wife

● when the parties had last cohabited;

● the economic and social status of the parties

● Question of custody and welfare of minor children,

ISSUE II: WHETHER ANJALI IS ENTITLED FOR THE DECREE OF

REASONABLE GROUNDS FOR REFUSING TO UPHOLD THE DECREE

T. Sareetha v. T. Venko Subbaiah31, CHOUDARY J. termed. the provision of restitution as

ISSUE III: WHETHER THE CUSTODY OF THE CHILD SHOULD BE PASSED IN

1. Pass the decree of divorce against the Respondent

ALL OF WHICH IS RESPECTFULLY SUBMITTED

COUNSELS FOR THE PETITIONER

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