2nd INTRA-COLLEGE MOOT COURT COMPETITION – 2020

BEFORE
THE HON’BLE FAMILY COURT OF INDRAPRASTHA,
PANDAV PRADESH

-TEAM CODE: TN43

IN THE MATTER OF:

ROHINI YADAV ----------------------------------------- PETITIONER

V.

VINAY SHUKLA ----------------------------------------RESPONDENT

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT

-MEMORANDUM FOR THE RESPONDENT-

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS ------------------------------------------------ 3

INDEX OF AUTHORITIES -------------------------------------------------4
STATEMENT OF JURISDICTION ---------------------------------------6
STATEMENT OF FACTS --------------------------------------------------- 7
STATEMENT OF ISSUES --------------------------------------------------- 9
SUMMARY OF ARGUMENTS ---------------------------------------------10
ARGUMENTS ADVANCED -------------------------------------------------11

1] RESPONDENT IS NOT HOMOSEXUAL ---------------------------------

2] ROHINI HAS DESERTED VINAY ------------------------------------------
3] DIVORCE SHALL NOT BE GRANTED ON THE GROUNDS OF
CRUELTY -----------------------------------------------------------------------------
4] MAINTAINENANCE OF RS. 30000 SHALL NOT BE AWARDED IF A
DECREE IS GRANTED TO THE PETITIONER ------------------------------

PRAYER---------------------------------------------------------------------------13

-MEMORANDUM FOR THE PETITIONER-

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LIST OF ABBREAVIATIONS

AIR ALL INDIA REPORTS

AIC ALL INDIA CASES
SCC SUPREME COURT CASES
DMC DIVORCE AND MATRIMONIAL CASES
SC SUPREME COURT
PARA PARAGRAGH
LGBT LESBIAN, GAY, BISEXUAL AND
TRANSGENDER
DEL DELHI
HAMA HINDU ADOPTION AND
MAINTENANCE ACT
HMA HINDU MARRIAGE ACT
HC HIGH COURT

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INDEX OF AUTHORITIES

TABLE OF CASES
Ashok Kumar Goyal v. Anita Goyal
Savitri Pandey v Prem Chandra Pandey, (2002)2 SCC 73, p 80 : AIR 2002 SC 591.
Bipinchandra Jai Singhbai Shah v Prabhavati, AIR 1957 SC 176 : 1956 SCR 838;

Lachman Utamchand Kirplani v Meena, AIR 1964 SC 40 : (1964) 4 SCR 331.

AIR 1957 SC 176 : 1956 SCR 838
Rohini Kumari v Narendra Singh, AIR 1972 SC 459 : (1972) 1 SCC 1
Abhisha v Poozhithura Suresh, 2018 (190) AIC 685 Ker at 687
Reeta Sharan v Shelendra Sharan, (1999) AIHC 2648 (MP).

TREATIES, BOOKS, REPORTS, DIGEST

Dr.Paras Diwan, Law of Marriage and Divorce, (5th ED. : 2008), (Universal Law
Publishing Co)
Dr. Paras Diwan, “Family Law”, Ninth Edition, 2009, Allahabad Law Agency
Family Law Lectures - Family Law I, 5th ed / MARRIAGE

JOURNALS REFERRED
All India Reports
All India Cases
Supreme Court Cases
Divorce and Matrimonial Cases
Supreme Court

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LAW DICTIONARY REFERRED

Black's Law Dictionary [8th Edition, 2004]

DATABASES REFERRED
www.lexisnexis.com
www.westlaw.com
www.scconline.com
www.indiankanoon.com
www.manupatrafast.com
www.judis.nic.in

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STATEMENT OF JURISDICTION

THE RESPONDENT HAS APPROACHED THIS HON‟BLE FAMILY COURT OF

INDRAPRASTHA, PANDAV PRADESH UNDER SECTION 7 OF FAMILY COURTS
ACT, 1984.1

1. Section 7- Jurisdiction.-
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. 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

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STATEMENT OF FACTS

For the sake of brevity and convenience of this Hon‟ble Court the facts of the present case
are summarised as follows:
1] Vinay Shukla is a resident of Hastinapur, Kaurav Pradesh, a state in the country of
Aryavarta. He lived in a rented house and works as a marketing consultant in Mad-Men
Advertising Inc. Rohini Yadav lived with her father in a rented house in Indraprastha, Pandav
Pradesh, another state in the country of Aryavarta. She is a law graduate but did not practice
law and works as a Freelance content creator from home.
2] Vinay and Rohini both are Hindu by religion. They both got married in an arranged
marriage ceremony in February 2015 according to Hindu rituals and customs at Indraprastha.
After their marriage Vinay purchased a flat at Hastinapur where they both resided together.
3] Vinay and Rohini were blessed with a daughter (Ira) in January 2016 and had been living a
happy life until December 2016 when Rohini started noticing some surprising facts. An adult
gay magazine was found in her husband’s wardrobe. She did not bring the issue up to Vinay
and kept mum about it. In January 2017, Rohini found her Husband’s mobile phone which
constituted intimate chats with Kartik. Kartik was Vinay’s college friend. Vinay denied
everything and refused to have a conversation on the abovementioned topic.
4] Vinay was distressed upon Rohini’s intrusion on his privacy. Rohini tried to have a
conversation with Vinay but he was adamant on not having a conversation and further
stopped speaking to Rohini altogether. Communication between the two had completely
broken down for months.
5] On 15th of May, Rohini left the house along with Ira without leaving any note. She wanted
and end to the relationship altogether along with a divorce but was aware of the fact that
Vinay could face serious repercussions since his intimate relationship with another man was
an offence under the laws of Aryavarta. Therefore, she did not proceed legally for obtaining
divorce since she did not want her daughter to be disgraced but let Vinay know over
telephone that she does not want to live with him.
6] Rohini moved back to Indraprastha and began living with her father. Neither of them tried
to reconcile their relationship for more than a year and communication had completely
broken down.

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7] In September 2018, the Supreme Court of Aryavarta decriminalised consensual sexual

conduct between adults of the same sex. Rohini hoped that Vinay would come clean about his
sexual orientation so that she could proceed legally but that did not happen. On the other
hand, Vinay was apprehensive that he would be served with a notice for divorce any day and
the truth would come out.
8] Further, he approached Rohini several times to reconcile their relationship. Hence, he
underwent counselling sessions as well as therapy to prove he is not gay upon Rohini’s
request. Between January 2019 to April 2019, Vinay realised that Rohini had made up her
mind and their relationship was probably over.
9] On 11th October 2019 two petitions had been filed by Rohini in the Family Court of
Indraprastha – One for grant of divorce and another for maintenance of Ira and herself. Both
the petitions are to be heard together since they are related to the same parties.
10] Along with the abovementioned facts, the court has by means of examination in chief and
cross examination established more facts those are:-
11] Vinay Shukla’s salary per month is about Rs. 45,000 and his expenses including the EMI
for the purchased flat and other necessities is Rs. 25,000.
12] Rohini has claimed joint maintenance of Rs. 30,000/- for herself and Ira, factoring in the
rent that she has to pay at Rs. 18,000/- per month and other necessities.
13] Vinay has taken the ground of desertion as defence as Rohini left her matrimonial home.
Whereas, according to Rohini, Vinay by shifting into another room had already deserted her.
14] Vinay has not contested maintenance to Ira ever and he has also pleaded that he took
intensive therapy for all the issues, and counselling for more than 1 year, and Rohini has
steadfastly refused therapy and counselling and that is the root of all issues. He offered to pay
for her sessions.
15] According to Vinay, the cell phone was an office allocated phone and the intimate chats
in them were between another colleague and Kartik. Also, that other colleague and Kartik are
now in a same sex marriage.
16] Rohini claims all these claims by Kartik are an afterthought and Vinay is trying to hide
behind the fact that he is gender-fluid.

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STATEMENT OF ISSUES

I. WHETHER VINAY SHUKLA IS HOMOSEXUAL.

II. WHETHER ROHINI HAS DESERTED VINAY.
III. WHETHER A DIVORCE SHALL BE GRANTED ON THE FAULT OF
CRUELTY.
IV. WHETHER A MAINTENANCE SHALL BE AWARDED IF A DECREE
OF DIVORCE IS GRANTED.

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SUMMARY OF ARGUMENTS

1] THE RESPONDENT IS NOT HOMOSEXUAL.

1] It is submitted that the respondent blatantly denied all the speculations about his sexual
orientation formulated by the petitioner. The cell phone was an office allocated phone and the
chats did not belong to the respondent. Hence, the respondent is not homosexual. Further, it is
an established law that mere guess work regarding the sexual orientation of the respondent
does not conclude that the respondent is homosexual.
2] ROHINI HAS DESERTED VINAY.
2] Desertion for the purpose of seeking divorce is the intentional permanent forsaking and
abandonment by one spouse without the other spouse’s consent and reasonable cause. The
petitioner by leaving her matrimonial home forms the first basis for desertion. The respondent
tried various counselling therapies to reconcile the relationship but it was the petitioner who
was adamant about obtaining a decree of divorce and that is the root cause of all problems.
Two essential conditions must be present for desertion, those are – i) the factum of desertion
and ii) the intention to bring cohabitation permanently to an end. Hence, the respondent did
not permanently want to end the cohabitation but it was the petitioner. Therefore, the
respondent did not desert the petitioner. Further, Desertion cannot be committed if there
exists a reasonable cause to withdraw from the cohabitation. Lastly, the reasonable cause by
the petitioner to leave the respondent is not grave and weighty since the respondent is not
homosexual. Since there exists no reasonable cause it is the petitioner who has deserted the
respondent.
3] DIVORCE SHALL NOT BE GRANTED ON THE GROUNDS OF CRUELTY.
3] Since it is established that respondent is not homosexual, cruelty has not been committed
by the respondent upon petitioner but rather the petitioner upon the respondent. A suspicion
of an illicit relationship with another outside of the marriage itself amounts to cruelty. Hence,
the respondent has not treated the petitioner with cruelty.
4] MAINTAINENANCE OF RS. 30000 SHALL NOT BE AWARDED IF A DECREE
IS GRANTED TO THE PETITIONER
Income of the non-applicant is a significant factor to be considered by the court in fixing the
quantum of maintenance. Hence, Rs.25000 EMI along with other necessities is an important
sum and therefore a maintenance of Rs.30000 is not a possibility to be granted.

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ARGUMENTS ADVANCED
I. THE RESPONDENT IS NOT HOMOSEXUAL.
1] It is submitted that Vinay (herein after referred to as the ‘respondent’) is not homosexual.
Upon the confrontation by Rohini (herein after referred to as the ‘petitioner’) about the
petitioner’s sexual orientation, the respondent blatantly denied all the speculations formulated
by the petitioner. The petitioner found intimate chats between the respondent and an office
colleague by the name Kartik. Followed by this, the respondent clarifies that the cell phone
consisting of the intimate chats with Kartik was an office allocated phone. Further, those
chats were between another colleague and Kartik who are now in a same sex marriage also.
Hence, Vinay is not homosexual.
2] Further, the petitioner never complained anyone about the homosexual relations of the
respondent with Kartik. It has been established in law through the case Ashok Kumar Goyal
v. Anita Goyal that mere guess work by the petitioner regarding the sexual orientation of the
respondent does not conclude that the respondent is gay.1

II. ROHINI HAS DESERTED VINAY.

3] It is submitted that on 15th of May 2017 the petitioner left her matrimonial home along
with her daughter in the absence of the respondent with an intention to end the relationship
permanently and seek a divorce. Desertion for the purpose of seeking divorce means the
intentional permanent forsaking and abandonment of one spouse by the other without that
other's, consent and without reasonable cause. In other words, it is a total repudiation of the
obligations of marriage.Desertion is not a single act complete in itself, it is a continuous
course of conduct to be determined under the facts and circumstances of each case as
observed in Savitri Pandey v. Prem Chandra Pandey.2 Hence, the petitioner by leaving her
matrimonial home forms the first basis for desertion.
4] The respondent upon being confronted about his orientation was anguished and started
living in a different room, although, after petitioner’s withdrawal from the home the
respondent tried several times to reconcile the relationship between them through various
counselling sessions for more than one year. Although, it was the petitioner who is adamant
about obtaining a decree of divorce and that is the root cause of all problems.3
1] Ashok Kumar Goyal v Anita Goyal

2] Savitri Pandey v Prem Chandra Pandey, (2002)2 SCC 73, p 80 : AIR 2002 SC 591.

3] Moot propsition

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5] It is an established law through the case Bipinchandra Jai Singhbai Shah v Prabhavati that
for the offence of desertion, so far as the deserting spouse is concerned, two essential
conditions must be there, namely i) the factum of desertion and ii) the intention to bring
cohabitation permanently to an end (animus deserendi). It also held that if a spouse abandons
the other in a state of temporary passion, for example, anger or disgust without intending
permanently to cease cohabitation, it will not amount to desertion.4 The respondent did not
live in a separate room with an intention to permanently cease the cohabitation. Hence, the
respondent did not desert the petitioner.
6] Further, it is established that an important element for desertion is the absence of a
reasonable cause. It is the petitioner’s burden to prove a reasonable cause exists for the
desertion.5
7] The respondent had not deserted the wife and was not gay. It has been submitted that the
intimate chats were between a colleague and Kartik and the cell phone was an office
allocated. The reasonable cause to leave the spouse must be sufficiently grave and weighty so
as to justify living away.6 Hence, since there exists no reasonable cause for the petitioner to
withdraw from her matrimonial house, she has deserted the petitioner.
III. DIVORCE SHALL NOT BE GRANTED ON THE GROUNDS OF CRUELTY.
8] It is submitted that the cell phone with the intimate chats was an office allocated phone and
that the chats were between his office colleague and Kartik. Also, the office colleague and
Kartik are now in a same sex marriage. Hence, the petitioner’s claim that the respondent is
homosexual is false.7
9] Since it is established that respondent is not homosexual, cruelty has not been committed
by the respondent upon petitioner but rather the petitioner upon the respondent. A suspicion
of an illicit relationship with another outside of the marriage itself amounts to cruelty. This
can be explained through the case Abhisha v Poozhithura Suresh, where the wife who was an
air hostess was suspected by her husband whenever she used to have a conversation with her
colleagues or superiors. The court held that “ no person can live with a spouse who is
suspecting his/her behaviour towards others, and when such suspicion goes to the extent of
alleging illicit relationship it would amount to mental cruelty.8
4] Bipinchandra Jai Singhbai Shah v Prabhavati, AIR 1957 SC 176 : 1956 SCR 838; Lachman

Utamchand Kirplani v Meena, AIR 1964 SC 40 : (1964) 4 SCR 331.

5] Family Law Lectures - Family Law I, 5th ed / MARRIAGE

6] AIR 1957 SC 176 : 1956 SCR 838; Lachman Uttamchand Kirplani v Meena, AIR 1964 SC 40;

Rohini Kumari v Narendra Singh, AIR 1972 SC 459 : (1972) 1 SCC 1.

7] Moot proposition

8] Abhisha v Poozhithura Suresh, 2018 (190) AIC 685 Ker at 687

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IV. MAINTAINENANCE OF RS. 30000 SHALL NOT BE AWARDED IF A DECREE

IS GRANTED TO THE PETITIONER
10] It is submitted that Respondent’s monthly salary is Rs.45000. His expenses including
EMI for the purchased flat and other necessities are about Rs.25000/month. Further, Rohini
has claimed a joint maintenance for her child and herself for an amount of Rs.30000
including the rent of her apartment of Rs.18000.
11] Income of the non-applicant is a significant factor to be considered by the court in fixing
the quantum of maintenance.
12] In Reeta Sharan v Shelendra Sharan, the court held that it has to assess the carry home
salary of the husband after compulsory deductions. It specified that while deductions by way
of provident fund, group insurance, income tax, union fee and professional tax are
compulsory deductions. Hence, Rs.25000 EMI along with other necessities is an important
sum and therefore a maintenance of Rs.30000 is not a possibility to be granted

Reeta Sharan v Shelendra Sharan, (1999) AIHC 2648 (MP).

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PRAYER

Wherefore in the light of facts presented, issues raised, arguments advanced and
authorities cited, the Counsels on behalf of the Defendant humbly pray before this Hon’ble
Court that it may be pleased to adjudge and declare that:

1. The petition for divorce is dismissed.

2. The petition for maintenance is dismissed.

Or pass any other order that the court may deem fit in the light of equity, justice and good
conscience and for this Act of kindness of Your Lordships the Defendant shall as duty
bound ever pray.

Sd/- _______________________
Counsels for the Defendant

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