1
Name : Roshini
Reg. No : 518A0087
Class : V Year B.A.LL.B
Section : C
BEFORE THE HON’BLE FAMILY COURT OF MADRAS
UNDER HINDHU MARRIAGE ACT 1955
KISHOREKUMAR………………………………………………………PETITIONER
V.
SANGEETHA………………………………………………RESPONDENT
MEMORIAL ON BEHALF OF THE PETITIONER
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TABLE OF CONTENTS
S.NO TABLE OF CONTENTS P.NO
I LIST OF ABBREVIATION
II INDEX OF AUTHORITIES
1. CASES REFERRED
2. ONLINE SOURCES
3. BOOKS REFERRED
III STATEMENT OF JURISDICATION
IV STATEMENT OF THE FACTS
V STATEMENT OF ISSUES
VI SUMMARY OF ARGUMENTS
VII ARGUMENTS ADVANCED
VIII PRAYER
MEMORIAL ON BEHALF OF THE PETITIONER
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LIST OF ABBREVIATIONS
& AND
HON’BLE HONOURABLE
LTD LIMITED
SC SUPREME COURT
V. VERSUS
ANR. ANOTHER
AIR. ALL INDIA REPORTER
ART. ARTICLE
S. SECTION
SCC SUPREME COURT CASES
SCR SUPREME COURT REPORT
ORS. OTHERS
CPC CIVIL PROCEDURE CODE
HMA HINDHU MARRIAGE AT
S SEC
CO COMPANY
MEMORIAL ON BEHALF OF THE PETITIONER
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INDEX OF AUTHORITIES
CASES REFERRED:
Bhagwan Dutt vs Kamla Devi And Anr on 17 October, 1974
Gobinda Rani Dasi vs Radha Ballabh Das on 5th July, 1910
Anupama Misra vs Bhagaban Misra on 1 November, 1971
Ms Jordan Diengdeh vs S.S Chopra on 10 May, 1985
Ayyalasomayajula Satyanandam vs Ayyalasomayajula Ushadevi, 1987 (1) ALT 335
(DB)
U.N. Satyanarayana vs U.Sharada And Anr. on 27 December, 2002
Madhusudan vs Smt Chandrika on 22 March, 1975
MEMORIAL ON BEHALF OF THE PETITIONER
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BOOKS REFERRED:
LAW OF MARRIAGE AND DIVORCE, PARAS DIWAN AND PEEYUSHI
DIWAN (7TH EDITION)
M.P. JAIN – INDIAN CONSTITUTIONAL LAW, LEXIS NEXIS (8 TH EDITION)
LEGISLATIONS CITED:
THE HINDHU MARRIAGE ACT, 1955
THE CODE OF CIVIL PROCEDURE, 1909
WEBSITES:
www.advocatekhoj.com
www.vakilno1.com
www.lawyersclubindia.com
www.indiankanoon.org
www.disabilityindia.co.in
MEMORIAL ON BEHALF OF THE PETITIONER
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THE STATEMENT OF JURISDICTION
The Petitioner has the honor to move this Court by way of filing a Divorce case on the
grounds of adultery, fraud, under section 13 (1) (i) of Hindu Marriage Act, 1955. The present
memorandum sets forth the facts, contentions and arguments in the present case.
MEMORIAL ON BEHALF OF THE PETITIONER
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STATEMENT OF FACTS
1. Kishorekumar, S/O Anbu aged 30 years residing at No.5 Annai Sivagami Nagar,
Burma Nagar, Chennai- 57.
2. Sangeetha D/O Suresh aged 25 years, residing in No.7 Amman Koil Street, Ennore,
Chennai.
3. The marriage between the Kishorekumar and Sangeetha solemnized on 22.04.2019
under Hindu customs and rights at Arul Migu Sri Vaduvudai Thiruvadi Kodaivudai
Amman temple, Thiruvottiyur, Chennai, Tamilnadu – 19.
4. The marriage was registered in the registrar of marriage at Thiruvallur at serial no.333
of 2019 of Registrar of marriage under the Indian Hindu Marriage Act 1995.
5. After the marriage Kishorekumar and Sangeetha has been living together from the
day of the marriage in the rented house at Annai Sivagami Nagar, Burma Nagar,
Ennore, Chennai along with Kishore’s parent.
6. Kishorekumar lived happily with Sangeetha till June 2019.
7. Kishorekumar states that during the month of April 2018.
8. Sangeetha used to talk over phone with unknown person regularly.
9. When the same was questioned by the Kishorekumar but his wife did not answer
properly to him.
10. The Kishorekumar never enjoyed the marital bliss and comfort of home.
11. Hence in the month of June 2019, Kishorekumar dropped Sangeetha in her parents’
house.
12. Thereafter on advice of the elders, Sangeetha assured that she won’t continue the
illegal relationship and will live with Kishore peacefully.
13. Thereafter, she came to her husband’s house but she used to talk over phone with
Arjun while the Husband went on duty.
14. After few months again Kishore knows about Sangeetha illegal relationship with
Arjun and still she is continuing the illegal relationship.
15. Then Kishore files divorce petition in Family Court.
MEMORIAL ON BEHALF OF THE PETITIONER
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THE STATEMENT OF ISSUES
Issue 1:
1. Whether the grounds stated in the petition by the petitioner are sufficient enough to
entitle her to obtain a decree of divorce by the court?
Issue 2:
2. Whether the petitioner is entitled to get maintenance?
Issue 3:
3. Whether the petitioner for the divorce filed by petitioner ought to be dismissed?
MEMORIAL ON BEHALF OF THE PETITIONER
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THE SUMMARY OF ARGUMENTS
1. Whether the grounds stated in the petition by the petitioner are sufficient
enough to entitle her to obtain a decree of divorce by the court?
It is humbly submitted before this hon’ble court that the grounds stated by the
petitioner are sufficient enough to entitle her to obtain a decree of divorce by the
court.
2. Whether the petitioner is entitled to get maintenance?
Yes, the petitioner is duty bound for his wife and daughters maintenance. The
petitioner has to pay maintenance to his wife and their daughters because he is able to
pay maintenances and according to Hindu adoption and maintenance act a Hindu wife
whether married before or after the commencement of the Act, shall be entitled to be
maintained by her husband during her life time and for her daughters till she gets
married.
3. Whether the petitioner for the divorce filed by petitioner ought to be dismissed?
Yes, the petition filed by the petitioner not be dismissed. As, according to section-5
and 11 of Hindu marriage act 1955 any marriage is voidable if at the time of marriage
anyone of the person is of unsound mind but it is clear that the respondent is not
unsound of mind from the fact that the respondent and the petitioner had three
daughters since the date of marriage. And if she was mentally ill till the date of
petition filed then why didn’t he file the petition before. And also no objection was
there to him when had lived with her for 5 years. But now he is acting neglecting
towards her and wants judicial separation.
MEMORIAL ON BEHALF OF THE PETITIONER
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ADVANCE ARGUMENTS
1. Whether the grounds stated in the petition by the petitioner are sufficient enough to
entitle her to obtain a decree of divorce by the court?
It is humbly submitted before the Hon’ble Court that the grounds stated by the petitioner are
sufficient enough to entitle her to obtain a decree of divorce by the court.
1.1 The Hindu marriage act 1955
The Hindu Marriage Act 1955 is an act to amend and codify the law relating to marriage
among Hindus. The provision for divorce was introduced in the Hindu Marriage Act, 955.
The Hindu Marriage Act defines divorce as dissolution of the marriage. For the interest of
society. Divorce is permitted only for a grave reason otherwise given other alternatives.
1.2 Section 13 of the Hindu Marriage Ac, 1955
This section deals with the concept of divorce between two parties in a lawful marriage.
Section 13(1) of Hindu Marriage Act, 1955 states that;
(1) Any marriage solemnized, whether before or after the commencement of this Act, may,
on a petition presented by either the husband or the wife, be dissolved by a decree of divorce
on the ground that the other party—
(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any
person other than his or her spouse; or
(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
(ib) has deserted the petitioner for a continuous period of not less than two years
immediately preceding the presentation of the petition; or
(ii) has ceased to be a Hindu by conversion to another religion; or
(iii) has been incurably of unsound mind, or has been suffering continuously or
intermittently from mental disorder of such a kind and to such an extent that the petitioner
cannot reasonably be expected to live with the respondent.
MEMORIAL ON BEHALF OF THE PETITIONER
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1.2.1 Grounds stated in the petition by the petitioner to obtain a decree of divorce by
court
1.2.1(a) Cruelty
The petitioner had mentioned that “the Respondent husband would return home late
at nights in a drunken state and would physically, mentally and emotionally abuse her”.
These were allegations that were thrown at the respondent with no proof and this caused
further mental stress to the respondent.
1.2.1(b) Adultery
Adultery means the consensual and voluntary intercourse between a married person
with another person, married or unmarried, of the opposite sex.
The following are essentials of adultery:
1. One of the spouses involved in the intercourse with another person, married or unmarried,
of the opposite sex.
2. Intercourse should be voluntary and consensual.
3. At the time of the act, the marriage was subsisting.
4. There must be sufficient circumstantial evidence to prove the liability of another spouse.
In this case, the petitioner has no evidence to prove that the respondent had voluntary and
consensual intercourse with another person, married or unmarried, of the opposite sex during
the period of their marriage.
MEMORIAL ON BEHALF OF THE PETITIONER
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2.1 Jurisdiction of Family court under Family Courts Act, 1984
It is humbly submitted before this Hon’ble court that whenever 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 marriage2 arises, the jurisdiction conferred under section
7 of the family court act, 1984 can be invoked.
Section 7 of the Family Courts Act, 1984 is as follows;
(1) Subject to the other provisions of ths 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.
2.2 Petitioner has no cause of action and locus stand to maintain the present petition
It is humble submitted before the Hon’ble Court that the grounds stated by the petitioner are
clearly not sufficient enough to entitle her to obtain a decree a divorce by the court.
The petitioner raised false allegations of cruelty and adultery. The petitioner (Aarohi) had
over exaggerated the facts of the case and was mwntally cruel to the respondent.
_____________________________
2
Smt. Nirmala Manohar Jagesha vsMonohar Shivram Jagesha AIR 1991 Born 259
MEMORIAL ON BEHALF OF THE PETITIONER
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3.1.1 (c) The Petitioners allegations were excessive and caused mental strain for the
respondent.
In Gurbux Singh vs Harminder Kaur3 the court held that simple minor aggravations,
squabbles, normal wear and tear of married life which occurs in everyday life in all families
would not be satisfactory for an award of separation on the ground of cruelty.
BalramPrajapati vs Susheela Bai4, in this case, Balram proved that his wife’s behaviou with
him and his parents was aggressive and uncontrollable and that she filed the false complaint
against her husband numerous times. The court held the wife guilty of her actions and
granted divorce to Balram.
It is humbly submitted before the hon’ble court that the petitioner had over exaggerated the
facts of the case and was mentally cruel to the respondent.
3.1.2 Adultery
Adultery means the consensual and voluntary intercourse between a married person with
another person, married or unmarried of opposite sex.
The concept of Adultery was added into the Hindu marriage act by the marriage laws
amendment act, 1976.
There are certain essentials required of an act to be the considered as an act of adultery. They
are as follows;
1. One of the spouses involved in the intercourse with another person, married or unmarried,
of opposite sex.
2. Intercourse should be voluntary and consensual.
3. At the time of the act, the marriage was subsisting.
4. There must be sufficient circumstantial evidence to prove the liability of another spouse.
In this case, the petitioner has no evidence to prove that the respondent had voluntary and
consensual intercourse with another person, married or unmarried, of opposite sex during the
period of their marriage.
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3
Gurbux Singh vs Harminder Kaur (2010) 14 SCC 301
4
Balram Prajapati vs Susheel Bai 22 April 11 (2003) DMC 708
MEMORIAL ON BEHALF OF THE PETITIONER
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2. Whether the respondent is entitled to get maintenance?
The Hindu adoption and maintenance states that (1) A Hindu wife whether married before or
after the commencement of this Act, shall be entitled to be maintained by her husband duing
her life time.
(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her
claim to maintenance-
(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and
without her consent or against her wish, or willfully neglecting her;
(b) if he has treated her with such cruelty as to reasonable apprehension in her mind that it
will be harmful or injurious to live with her husband;
(c) if he is suffering from a virulent form of leprosy;
(d) if he has any other wife living;
(e) if he keeps a concubine in the same house in which his wife is living or habitually resides
with a concubine elsewhere;
(f) if he has ceased to be a Hindu by conversion to another religion;
(g) If there is any other cause justifying her living separately;
(3) Hindu wife shall not be entitled to separate residence and maintenance from her husband
if she is unchaste or ceases to be a Hindu by conversion to another religion.
Here, the petitioner is able to pay maintenance to his wife and his daughters till the daughters
attain maturity and become able to fulfill their needs themselves but he had to pay
maintenance to his wife for life time.
MEMORIAL ON BEHALF OF THE PETITIONER
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According to the case of Gibinda Rani Dasi vs Radha Ballabh Das on 5 july, 19105
plaintiff consequently asks for a declaration that he and his wife and children are entitled to
be maintained out of the estate of Radhika Mohan now in the hands of the defendantand
seeks for a decree for arrears of maintenance from the 16th January 1906 up to the 18th June
1997. In the court below plaintiff applied for leave to sue in forma pauperis, and as it was
found that he was not possessed of sufficient means to enable him to pay the institution fee,
he was allowed to do so in due course. The claim was resisted substantially on the ground
that therewas no express contract under which the plaintiff could claim maintenance; that
under the Hindu Law such a claim was not sustainable; that in any event, he was not entitled
to separate maintenance; and that as he was of bad character and irregular habit and had
grossly insulted his mother-in-law, he had lost all rights of maintenance, if he ever had any.
The learned subordinate judge has found upon the evidence that the express contract for
maintenance alleged by the plaintiff has not been established, but he has held that there
allowed to turn him out without any provision for their maintenance. It may be conceded as
laid down by this court in the case of Tekait Monmohini vs Basanta Kamar 28 C 751 that an
ante-nuptial agreement on the part of the husband that he will never be at liberty to remove
his wife from her paternal abode will not enforced by a court of justice on the ground that it
is contrary to the rules of Hindu law which impose a duty upon a Hindu wife to reside with
her husband wherever he may close to reside. It need not also be disputed that such an ante-
nuptial Agreement on the part of the husband is opposed to public policy and consequently
the father-in-law will not be assisted by any court in his endeavour to enforce it. It does not
follow however that if the son-in-law is willing to abide by the arrangement the father-in-law
or his representative is at liberty to resile from the position deliberately adopted and to fefuse
to maintain him, his wife and children. In our opinion, there is nothing in Hindu law or in
public policy very special reasons, the court are entitled to make a decree for separate
maintenance. In the case before us it is abundantly clear upon the evidence that the plaintiff
has fallen out with his mother-in-law. The plaintiff cannot be blamed for the caution with
which he has ached, obviously in the interest of his wife and children who are the ultimate
reversionary heirs, but although such passive obstruction on the part.
______________________
5 Gibinda Rani Dasi vs Radha Ballabh Das on 5 july, 1910
MEMORIAL ON BEHALF OF THE PETITIONER
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The first ground urged in support of the cross-objections, is that the decree of the court below
ought to have declared the right of maintenance not merely of the plaintiff bit also of his wife
and children. This contention is in our opinion partially well founded.
As the suit has been instituted by the plaintiff alone, a declaration cannot be made that his
wife and the children are entitled to maintenance from the defendant, but in the view take of
the matter, the plaintiff is entitled to a declaration that the amount of maintenance to be
allowed to him should be so regulated as to suffice for the needs not only of himself but also
of his wife and children, if these latter are not maintained by the defendant as members of her
family. If the defendant refuses to receive back the plaintiff in her family circle, the latter is
clearly entitled to take away his wife and children, and in such a contingency, the amount
allowed to him must be adequate to maintain himself and his family. The qualifying words,
therefore in the decree “only for himself”
And in the case of Bhagwan Dutt vs Kamla Devi and Anr on 17 October, 19746, section
488 does not confer an absolute right on a neglected wife to get an order of maintenance
against the husband nor does it impose an absolute liability on the husband to support her in
all circumstances. The use of the word “may” in section 488(1) indicates that the power
covered in the magistrate is discretionary. A neglected wife, therefore, cannot under this
section claim as of right an order of maintenance against the husband.
Fixing the amount of maintenance, the magistrate is debarred from taking into consideration
the wife’s own separate income it means of support. There is a clear distinction between a
wife’s locus standi, to file a petition under S. 499 and her being entitled on merits to a
particular amount of maintenance there under.
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6 Bhagwan Dutt vs Kamla Devi and Anr on 17 October, 1974
MEMORIAL ON BEHALF OF THE PETITIONER
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That case in P.T.Ramankutti v. Kalyankutty7 (Supra) thererin, the husband was getting a nee
salary os Rs.240/- while the monthly salary of his wife was (after deduction) Rs.240/-. The
question was whether the wife in such a financial position has a right to claim maintenance
under S.488 criminal procedure code after referring to the observations of Dua J in Major
Joginder Singh’s case (supra) and surveying the case law on the subject, the learned single
judge of the Kerala High Court correctly summed up the position thus; “To take the view that
in granting maintenance under section 488 to a wife her personal income also can be
considered may prima-facie appear to be against the language of the section because the
condition” unable to maintain itself “ appearing therein attached itself only to child and not to
wife. But that condition has application only in considering the maintainability of the petition
filed under S.488. A wife can file a petition under that section irrespective of the question
whether she is able or unable to maintain herself. But on her application at the time of the
granting of monthly.
According to the case of Ms. Jordan Diengdeh vs S.S.Chopra on 10 May, 19858 Civil code
necessity of emphasised. Indian divorce act, 1869 SS 18,19,and 22 petition by wife allegation
of impotence of husband nullify of marriage ITR judicial separation sought high court
rejecting prayer for nullity, but granting judicial separation on account of cruelty validity of
Supreme Court holding irretrievable breakdown of marriage. Hindu Marriage act 1955 SS.
10 and 13B special marriage act, 1954 SS. 23 to 28 Parsi Marriage and Divorce act, 1936 SS.
31 to 34 Dissolution if Muslim Marriage act, 1939 S 2 Ground for dissolution of marriage
not uniform. Necessity for uniform civil code stressed. HEADNOTE: the petitioner belonged
to the ‘Khasi Tribe’ of Maghalaya and was born and brought up as a Presbytarian Christian.
She is not a member of the Indian foreign service. The respondent husband is a Sikh. A
single judge of the high court rejected the prayer for declaration of nullity of marriage.
HELD: (1) A comparison of the relevant provisions of the Christian marriage act, 1872,
Hindu marriage act, 1955, special marriage act, 1954, Parsi Marriage and divorce AC v1936,
dissolution of Muslim marriage act 1939 site that the law relating to judicial separation
divorce Adha nullity of marriage is far from uniform [717 B] (2) Under the Hindu marriage
act sec 10 provides for judicial separation. It enables either party to a marriage to seek
judicial separation on any of the grounds specified in sec 13(1) and in the case of a wife also
on the grounds specified in sub-sec. 2 of sec 13. Section 11 and according to the case of
Anupama Misra vs Bhagavathi Misra on 1 November, 1971
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7 P.T.Ramankutti v. Kalyankutty
8 Ms. Jordan Diengdeh vs S.S.Chopra on 10 May, 1985
MEMORIAL ON BEHALF OF THE PETITIONER
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It is clear from the narration of the facts given above that of the Misc. Case No.1/63 succeeds
and the decree for judicial separation is set aside, then the decree for divorce cannot be
granted on the grounds that there has been I resumption of cohabitation as between the
parties for a period of two years or upwards after ousting is the decree for judicial separation
in a proceeding to which they were parties. The proceedings for judicial separation must be
restored to its pre trial state and the appellant v must be given an opportunity to contest the
same. I will therefore v deal with,
The appellant’s letter to her lawyer Sri P.C Misra requesting the letter not to proceed further
in the case if dated 07-09-61 and has been proved as Ext. 1. It recited that her husband, the
respondent, approached her on 29-08-61 and again on 02-09-61 and broached the subject of
compromising the proceeding regarding judicial separation. It was settled between then that
the judicial separation proceedings should be decree and thereafter he will live with her as
her husband in amity as before, and that she believed in this assurance of her husband and
having complete faith in such assurance she did not contest the proceedings for judicial
separation any further. This letter Ext. 1 was filed by the appellant
3. WHETHER THE PETITION FOR DIVORCE FILED BY THE PETITIONER
OUGHT TO BE DISMISSED
Yes, the petition filed by the petitioner should not be dismissed, As, according to section-5
and 11 of Hindu Marriage Act 1955 any marriage is void if at the time of marriage anyone of
the person is of unsound mind but is clear that the respondent is not unsound of mind from
the fact the respondent and the petitioner had three daughters till the date marriage.
Under section 13 of Hindu marriage act, 1955 Divorce states that any marriage solemnized,
whether before or after the commencement of Act, may on a petition presented by either the
husband or the wife be dissolved by the decree of divorce on the ground that the other party-
1a. treated the petitioner cruelty
2. Has deserted the petitioner for a continuous period of not less than two years immediately
preceding the presentation of the petition.
But in this case the respondent has not shown any cruelty and desertion during six years of
their marriage.
In the case U.N Sathyanarayana vs U.Shrada and Anr. On 27 December, 2002, the
relationship of the parties is not disputed. The 1st petitioner as PW1 deposed that ever since
the marriage on 29-06-1986, the respondent was exhibiting peculiar behavior with a
MEMORIAL ON BEHALF OF THE PETITIONER
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flickering mind. After marriage she came to know that he was suffering with it since prior to
the marriage and he was under the administration of anti-depression drug.
And in Ayyalasomayajula v. Ayyalasomayajula Ushadevi, 1987 (1) ALT 335 (DB), a
division bench of this court in a new case for divorce on the grounds of unsound mind
observed that is for the petitioner to establish either of incurable unsoundness of the
respondent or that the mental disorder is such a kind and to such an extent that the other
spouse cannot reasonably be expected to live with the respondent.
Prayer
Wherefore in the light of the issues raised, arguments advanced and authorities cited, the
Hon’ble High Court may be pleased to:
Declare that the contesting respondent has illicit relationship with respondent no.2
AND/OR
Pass any other order,direction on relief that it deems fit in the interest of justice,
MEMORIAL ON BEHALF OF THE PETITIONER
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Equity and good conscious.
Pray
MEMORIAL ON BEHALF OF THE PETITIONER
