LAW CENTRE-1

MOOT COURT SESSION 2019-2020

BEFORE THE HON’BLE HIGH COURT OF DELHI, NEW DELHI

SUIT NO. ___ OF 2019

IN THE MATTER OF :

SUBHASH……………………………………………………..APPELLANT

VERSUS

SARITA…………………………………………………..…RESPONDENT

MEMORIAL ON BEHALF OF APPELLANT

COUNSEL APPREARING ON BEHALF OF APPELLANT

SONI PASWAN
ROLL NO.- 196093
SECTION- D
 TABLE OF CONTENTS

INDEX OF AUTHORITIES.....................................................................................................3

STATEMENT OF JURISDICTION.........................................................................................4

STATEMENT OF FACTS........................................................................................................5

STATEMENT OF ISSUES........................................................................................................6

SUMMARY OF ARGUMENTS…………………………………………………..………….7

ARGUMENTS ADVANCED………………………………………………………….……..8

ISSUE 1 [WHETHER CONDUCT OF APPELLANT AMOUNTS TO CRUELTY?]

ISSUE 2 [WHETHER THE FINDINGS OF HON’BLE DISTRICT JUDGE ARE

ERRONEOUS AND THE DIVORCE DECREE LIABLE TO BE SET ASIDE?]

PRAYER………………..………………………………………………………………….…13
 INDEX OF AUTHORITIES

Statutes
 The Hindu Marriage Act, 1955

Books
 Mulla’s Hindu Law, Updated 21st Edition, 2013

Case Law
 N.G. Dastane (Dr.) v. S. Dastane, (1975) 2 SCC 326
 Milind Anant Palse v. Yojana Milind Palse, 2014 SCC OnLine Bom 631
 V. Bhagat v. D. Bhagat, (1994) 1 SCC 337
 Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511
 Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121
 Suman Singh v. Sanjay Singh, AIR 2017 SC 1316
 Parveen Mehta v. Inderjeet Mehta, AIR 2002 SC 2582
 Savitri Pandey v. Prem Chandra Pandey, (2002) 2 SCC 73
 G.V.N. Kameshwara Rao v. G.Jabilli, (2002) 2 SCC 296
 Anil Kumar v. Vanishree A. , ILR 2009 Kar 3028

Websites
 www.manuptrafast.com
 www.scconline.com

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 S
TATEMENT OF JURISDICTION

The Appellant in Civil Appeal No.__/___most humbly submits that the Hon’ble High Court of
Delhi at New Delhi has appropriate jurisdiction over the instant matter under Section 28 of the
Hindu Marriage Act, 1955 to hear and adjudicate accordingly.

Hence the present case is in this Hon’ble Court.

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 STATEMENT OF FACTS

1. The appellant, Mr. Subhash (age 32 years), Hindu man and the respondent, Miss Sarita
(age 28 years), Hindu woman were married in Delhi with proper Hindu rites and
ceremonies on 02/02/2010.
2. A son was born to Ms. Sarita on 03/01/2012.
3. Thereafter they lead a happy marital life until the physical appearance of Subhash
became a sore in the eye of Ms. Sarita.
4. Mr. Subhash was subjected to public ridicule and snide remarks such as ‘haathi’, ‘mota
haathi’, ‘fatso’ behind his back due to his physical shape. But, being a man of mature
temperament, he ignored them.
5. However, the respondent took the remarks upon herself and constantly pestered the
appellant to reduce weight and unilaterally tried to control his diet while constantly
insisting that he should contact a doctor. This unjustified persistence resulted in mental
agony to Mr. Subhash.
6. Being unable to make him conform to her standards of physical appearance, Ms. Sarita
filed a petition for a decree of divorce on the ground of mental cruelty citing isolated
incidents from her matrimonial life under section 13(1)(ia), Hindu Marriage Act, 1955 in
the District Court, Delhi in April, 2015.
7. The District Court granted Ms. Sarita divorce on ground of mental cruelty. Resultantly,
the present appeal lies before this Hon’ble court against the erroneous decree made.

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 STATEMENT OF ISSUES

1. WHETHER THE CONDUCT OF APPELLANT AMOUNTS TO CRUELTY?

2. WHETHER THE FINDINGS OF THE HON’BLE DISTRICT JUDGE ARE

ERRONEOUS AND THE DECREE LIABLE TO BE SET ASIDE?

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 Ko

SUMMARY OF ARGUMENTS

1. CONDUCT OF MR. SUBHASH DOES NOT AMOUNT TO CRUELTY.

It is humbly submitted before this Hon’ble Court that the conduct and behaviour of Mr.
Subhash towards Ms. Sarita in their matrimonial life do not in any way constitute any form of
cruelty, whether mental or physical.

2. THE FINDINGS OF HON’BLE DISTRICT JUDGE ARE ERRONEOUS AND THE

RESULTANT DECREE LIABLR TO BE SET ASIDE.
It is submitted that the District Judge has patently erred in appreciating the facts and law in
present case and laid undue emphasis on trivial incidents to grand the decree of divorce on
ground of mental cruelty u/s. 13(1)(ia), Hindu Marriage Act, 1955.

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 ARGUMENTS ADVANCED

1. WHETHER THE CONDUCT OF APPELLANT AMOUNTS TO CRUELTY?

Cruelty is a ground for dissolution of marriage by a decree of divorce as per Section
13(1)(ia) of Hindu Marriage Act, 1955. The legal concept of cruelty has varied
from time to time and from society to society with the change in social and
economic conditions. The modern law takes the view that the objective is to
accord protection to the innocent party. Nagging and scolding and even
incompatibility of temperament have been held to be included in cruelty.
Denning, L.J.’s warning that “If the doors of cruelty were opened too wide, we
slip into a state of affairs where the institution of marriage itself is imperilled”.
There is a large volume of case law around the legal concept of cruelty in India as
well as abroad. Since the human nature is basically the same everywhere, the
foreign decision on cruelty can be of help to us.

[1.1] Cruelty - meaning in matrimonial law

A. The term cruelty is not defined in the Hindu Marriage Act 1955. It is through decided
cases that the term has been understood to mean physical and mental cruelty. The concept
of mental cruelty cannot be defined exhaustively.
B. The Supreme Court in N. G. Dastane (Dr.) v. S. Dastane1 examined this concept and
observed that the conduct of the respondent should be such so as to cause reasonable
apprehension in the mind of the petitioner to live with the respondent.
C. In V. Bhagat v. D. Bhagat2, the Apex Court held that mental cruelty must be of such a
nature that the parties cannot reasonably be expected to live together.
D. The respondent in the present case filed a petition for divorce in the District court on the
ground of mental cruelty as the appellant was no longer capable of satisfying her sexually
as he had become too fat to have sex in the last 3 years. Marriage is a union of two people.
The essence of institution of marriage is to trust and support each other through good and
bad times. Instead of comforting the appellant for receiving snide remarks by the public,
she started pestering and forcing the appellant to control his diet and lose weight.
E. In Milind Anant Palse v. Yojana Milind Palse 3 the Bombay High Court rejected the plea of
a husband for grant of divorce because of his wife’s excessive weight gain. He claimed that
because of his wife’s size, he could not enjoy the normal physical pleasures of marital life.
1
(1975) 2 SCC 326
2
(1994) 1 SCC 337
3
2014 SCC OnLine Bom 631
8
 The court held that despite the husband’s claim his wife’s weight had not stopped them
from enjoying a normal sexual relationship. In the present matter there is nothing to show
that the appellant had denied to have sexual relations with the respondent, nor has the same
been alleged.
F. In Samar Ghosh v. Jaya Ghosh4, the Apex court enumerated sixteen instances of human
behavior which although are not exhaustive yet maybe relevant in the dealing with the
cases of mental cruelty. One of these instances was: “….(xii) Unilateral decision of refusal
to have intercourse for considerable period without there being any physical incapacity or
valid reason may amount to mental cruelty”. There is neither any refusal on part of the
appellant nor any incapacity.
G. Thus, by no stretch of imagination can it be said that the appellant treated the respondent
with mental cruelty.

[1.2] Conduct of the appellant in present case

A. In the present case, respondent has pointed out an incident which occurred on 29/03/2015,
where she had insisted that the appellant should follow a diet to lose weight and invited a
personal physical instructor to teach him proper exercises to lose weight. The appellant
insulted the instructor and threw him out of the house. After the instructor left, the appellant
opened a can of kerosene and threatened to burn her alive if she even mentioned the word
dieting or tried not to give him as much food as he wanted.
B. The counsel humbly submits that this conduct of the appellant was nothing more than an
outburst of emotions. It was nothing more than a manifestation of frustration building inside
him due to the constant belittling of his confidence triggered but the presence of the physical
instructor which came as a shock to the appellant.
C. Moreover, there has not been any previous occurrence which can go to show that the
appellant treated the respondent with cruelty.
D. The Apex Court in Shobha Rani v. Madhukar Reddi5 while discussing the method for
determining mental cruelty held that, “First, the enquiry must begin as to the nature of cruel
treatment. Second, the impact of such treatment in the mind of the spouse. Whether it caused
reasonable apprehension that it would be harmful or injurious to live with the other.
Ultimately, it is a matter of inference to be drawn by taking into account the nature of the
conduct and its effect on the complaining spouse.”
E. In Suman Singh v. Sanjay Singh6, the Hon'ble Supreme Court of India observed that no
4
(2007) 4 SCC 511
5
AIR 1988 SC 121
6
AIR 2017 SC 1316
9
 decree for divorce can be passed on one isolated incident. Merely because both exchanged
some verbal conversation in presence of others would not be enough to constitute an act of
cruelty unless it is further supported by some incidents of alike nature. In this case, the
grounds alleged by the respondent in his petition were individually and collectively
compared with the 16 grounds laid down in Samar Ghosh Case [(2007) 4 SCC 511] only to
the dissatisfaction of the Apex Court which led to reversal of the decree granted by lower
courts.
F. In Parveen Mehta v. Inderjit Mehta7, the Hon’ble Supreme Court observed that "In case of
mental cruelty it will not be a correct approach to take an instance of behaviour in isolation
and then pose the question whether such behaviour is sufficient by itself to cause mental
cruelty. The approach should be to take the cumulative effect of the facts and circumstances
emerging from the evidence on record and then draw a fair inference whether the petitioner
in the divorce petition has been subjected to mental cruelty due to the conduct of the other.
G. Therefore, it is submitted that the conduct and behavior of appellant in matrimonial life of
the parties does not amount to cruelty in any manner. The grounds alleged by the respondent
for proving mental cruelty do not conform to any grounds laid down by the Hon’ble
Supreme Court in its judgements (Samar Ghosh Case 4, Dastane Case1) for the relief of
divorce.

2. WHEATHER THE FINDINGS OF THE HON’BLE DISTRICT JUDGE ARE

ERRONEOUS AND THE DECREE LIABLE TO BE SET ASIDE?

The decree passed by the Hon’ble District Judge is patently laconic and cannot be
sustained as neither the facts of this case nor the law laid down by the Hon’ble
Supreme Court and High Courts has been appropriately appreciated and applied.

[2.1] Undue emphasis on isolated incidents

A. It is humbly submitted that the learned District Judge has deviated from the caution given by
Hon’ble Supreme Court in Dastane v. Dastane1 where it was emphasized that the inference
has to be drawn from the attending facts and circumstances taken accumulatively. In case of
mental cruelty, it will not be a correct approach to take an instance of misbehaviour in
violation and then pose the question whether such behavior is sufficient by itself to case
mental cruelty.
7
AIR 2002 SC 2582
10
B. In Savitri Pandey v. Prem Chandra Pandey8 the Supreme Court held that cruelty has to be
distinguished from the ordinary wear and tear of family life which the Hon’ble District
Judge has failed to do.
C. In G.V.N. Kameshwara Rao v. G Jabilli9, Hon’ble Supreme Court has advised that when the
court has to come to a conclusion whether the acts committed by any spouse amounts to
cruelty it is “to judged not from a solitary incident, but on consideration of all relevant
circumstances”
D. In the case of Samar Ghosh v. Jaya Ghosh4, the supreme court held that the married life
should be reviewed as a whole and a few isolated instances over a period of years will not
amount to cruelty. The ill conduct must be persistent for a lengthy period, where relationship
has deteriorated to an extent that, the wronged party finds it extremely difficult to live with
other party any longer.
E. The mere fact that the spouse is moody, mean, selfish, inconsiderable will not be sufficient
to amount to cruelty. The Hon’ble District Judge has considered singular isolated incidents
in the matrimonial lives of the parties and has passed a decree based on incorrect reading of
it.

[2.2] Decree granted on vague allegations

The allegations made by the respondents are vague, baseless and without any specifics.

A. The Hon’ble District Judge has based his findings on vague allegations, isolated incidents
from the matrimonial life of the parties and the subjective personal views of the respondent.
B. The Hon’ble High Court of Karnataka in the case of A. Anil Kumar v. Vanishree A.10 laid
down certain principles with regard to mental cruelty worth mentioning: -
(i) On consideration of complete marital life of the parties, acute mental pain, agony and
suffering as would not make possible for the parties to live with each other could come
within the broad parameters of mental cruelty.
(ii) A sustained course of abusive and humiliating treatment calculated to torture,
discomfort or render miserable life of the spouse.
(iii) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical
and mental health of the other spouse.
(iv) Sustained reprehensible conduct, studied neglect, indifference or total departure from
normal standard of conjugal kindness causing injury to mental health or deriving
sadistic pleasure.
8
(2002) 2 SCC 73
9
(2002) 2 SCC 296
10
ILR 2009 Kar 3028
11
C. The defendant in her allegations has failed to establish any such sustained conduct on part of
the appellant.
D. Further, in the same case was held, mere trivial irritations, quarrels, normal wear and tear of
the married life which happens in day to day life would not be adequate for grant of divorce
on ground of mental cruelty.
E. In absence of any reprehensible sustained conduct of mental cruelty, the Hon'ble District
Judge has taken isolated incidents of marital life and erroneously read them as a single chain
of events concluding into mental cruelty upon the respondent.

[2.3] Different yardsticks adopted by the District Judge

A. It is humbly submitted that the District Judge has adopted different yardsticks in dealing
with the parties, setting aside the canons of justice, equity and good conscience. In Suman
Singh v. Sanjay Singh6, the Supreme Court found a similar infirmity in the trial court
judgement and observed: -
" A pragmatic approach and not a pedantic one is required while dealing with matrimonial
disputes. The trial judge has dealt with the evidence led by the parties in a very superficial
manner."
B. The allegations made by the respondent has been taken too seriously by the Judge and the
decree is based entirely on the findings of such facts while the appellant's contention seems
to have been entirely ignored.

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 PRAYER

It is hereinafter most humbly prayed before this Hon’ble Court, that, in the light of the issues
raised, arguments advanced, authorities cited and the pleadings made, the Hon’ble Court may
be graciously pleased to allow the appeal and adjudge and declare that:

1. The findings of the Honorable District Judge are erroneous and consequently the
decree of divorce is liable to be set aside.

AND/OR

Pass any judgment, orders or decree in the favour of appellant as it deems fit in the interest of
justice, equity and good conscience.

All of which is humbly and respectfully submitted,

COUNSEL ON BEHALF OF APPELANT

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