MOOT COURT AND INTERNSHIP

(CLINICAL PAPER - II)

2017 – 2021
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MOOT COURT PROBLEM – 2

SRI BALAJI .M

17040142024

BBA,LLB (Hon’s)

BEFORE THE HON’BLE FAMILY COURT, PUNE

ORIGINAL JURISDICTION

PETITION NO: ____ OF 2021

IN THE MATTER OF

SEEMA SINGHAL……………………………………………….. PETITIONER

RAJESH SINGHAL………………………………………………. RESPONDENT

COUNSEL APPEARING ON BEHALF OF THE RESPONDENT, RAJESH

SINGHAL

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TABLE OF CONTENT PAGE NO:

1. LIST OF ABBREVIATIONS 4

2. INDEX OF AUTHORITIES 5

I. TABLE OF CASES 5

II. CONSTITUTIONS 5

III. STATUTES 5

IV. DATABASES 6

3. STATEMENT OF JURISDICTION 7

4. STATEMENT OF FACTS 8

5. STATEMENT OF ISSUES 9

6. SUMMARY OF ARGUMENTS 10

7. ARGUMENTS ADVANCED 11

8. PRAYER 16

LIST OF ABBREVIATIONS
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No. Number

Ors. Others

SC Supreme court

SCC Supreme court case

No. Andhra Pradesh

Ors. High court

IPC Indian penal code

HMA Hindu Marriage Act

Cons. Constitution

INDEX OF AUTHORITIES

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I TABLE OF CASES

CASE CITATIONS

Sushila Bai vs. Prem Narayan AIR 1986 MP 225

T. Sareetha vs. T. Venkatasubbaiah AIR 1983 AP 356

Harvinder Kaur vs. Harminder Singh AIR 1984 Delhi 66, ILR 1984 Delhi 546,

1984 RLR 187

Saroj Rani vs.Sudharshan Kumar Chandha 1984 AIR 1562, 1985 SCR (1) 303

Avinash Chandrakant Deshmukh & Ors vs. CA 482 NO.603 OF 2018

State of Maharastra

II CONSTITUTIONS

The constitution of India, 1950

III STATUTES

1. Hindu marriage act, 1955

2. Indian penal code, 1860

3. Indian divorce act 1869.

4. Special marriage act 1954.

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IV DATA BASES

1. www.scconline.com

2. www.legalserviceindia.in

3. www.indiankanoon.in

4. www.helplinelaw.in

5. https://districts.ecourts.gov.in

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STATEMENT OF JURISDICTION

The section 19 of Hindu Marriage act 1955, the court to which the petition shall be presented

every petition under this act shall be presented to the district court within the local limits of

whose ordinary original civil jurisdiction.

i) The marriage was solemnized or

ii) The respondent, at the time of the presentation of the petition, resided or

iii) The parties to the marriage last resided together, or

iv) In case the wife is the petitioner, where she is residing on the date of presentation of

the petition, or

v) The petitioner is residing at the time of presentation of the petition in a case where the

respondent is at that time, residing outside the territories to which the act extends, or

has not been heard of as being alive for a period of seven years or more by those

persons who would naturally have heard of him if he were alive.

As per section 19 of Hindu Marriage act of 1955, the petition can be filed under the family court

of Pune where both the parties Rajesh and Seema reside.

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STATEMENT OF FACTS

1. Seema Singhal and Rajesh Singhal were husband and wife they got married in the year

of 2008 on 1st April. They both were resident of Pune and they both met through the

matrimonial website Asha. In the year of 2012 a daughter was born to them who were

known as Aashna Singhal, at present she was about the age of nine.

2. In the year of early 2020 Rajesh lost his job due to the covid - 19 and started drinking

excessively. He started beating his wife Seema and his daughter Aashna. Rajesh

behavior became extremely violent.

3. On November 3rd of 2020 it was Aashna’s 9th birthday so there was a party and numbers

of guests were invited. Rajesh went into a heated argument with Seema’s friend Vijay

and punched him twice on his face in front of everyone. So Seema filed a case for

judicial separation from Rajesh.

4. Rajesh alleged that from 2018 Seema had an extra martial affair with Vijay. At first

Rajesh ignored the behavior of Seema because of their daughter. However during the

period of covid Seema started to ignore Rajesh and Aashna completely. Seema has been

talking to Vijay all time whom she had extra affair. After the lockdown got over both of

them started meeting up. So this was the reason where the fight was happened between

Rajesh and Vijay on Aashna’s birthday party. Seema and Rajesh have not in cohabitation

for last 11 months. So Rajesh requested the court to grant him relief in restitution of

conjugal rights

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STATEMENT OF ISSUES.

ISSUE - 1

Whether Rajesh can be granted relief in the restitution of conjugal rights

ISSUE - 2

Whether the petition filed by Seema for judicial separation can be held valid?

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SUMMARY OF ARGUMENTS

1. Whether Rajesh can be granted relief in the restitution of conjugal rights

The Rajesh can be granted relief from the restitution of conjugal rights as per section 9 of Hindu

marriage act 1955. As per the act, If anyone of the spouse has left the other spouse without

giving a reasonable ground then the aggrieved party can claim the remedy under the section 9 of

the Hindu marriage act. The Seema had an extra marital affair with Vijay which fulfills the

grounds for the restitution of conjugal rights.

2. Whether the petition filed by Seema for judicial separation can be held valid?

The petition filed by Seema for judicial separation cannot be held valid as per section 10 of

Hindu marriage act 1955. The petition for judicial separation filed by Seema does not comply

with the grounds falling under the judicial separation. It does not comply with the grounds of

cruelty. There is not any willful conduct and continuous beating of which is not able to bearable.

ARGUMENTS ADVANCED

1. Whether Rajesh can be granted relief in the restitution of conjugal rights

The restitution of conjugal rights petition can be filed under the section 9 of Hindu marriage act

1955. The section 9 of the act says that “when either the husband or wife has without reasonable

excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to

the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of

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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”.

In the case of sushila bai vs. prem narayan1 the court gave of order of restitution and confirmed

certain following essentials as a ground for restitution of conjugal rights. They are:

i) One party must have withdrawn from the society of the other

ii) The withdrawn must be without any reasonable reason.

iii) That there was no other legal ground for the refusal of relief.

iv) The court must be satisfied with the petitioner’s arguments.

So these are the grounds which suits for the restitution of the conjugal rights. If these grounds

have been achieved by the aggrieved party then the decree for restitution of conjugal rights can

be given. So as like Seema has an extra marital affair and started to ignore his husband Rajesh

and her daughter Aasha. She never helps her daughter in her studies. She was talking to Vijay

and started to meet him with whom she had an extra affair. So the behavior of Seema shows for

the ground of the restitution of conjugal rights.

2. Whether the petition filed by Seema for judicial separation can be held valid?

The judicial separation is held in the section 10 of Hindu marriage act 1955. It provides judicial

separation for both the spouse those who had married under the Hindu marriage act 1955.

Judicial separation is a separation of spouses for a period of one year. This judicial separation is

given some time to the parties to self analysis of a disturbed married life. The judiciary gives

then chance to rethink about the extension of their relationship at the same time guiding them to
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AIR 1986 MP 225

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live separately. Judicial separation is the last option available to both the spouses for the legal

breakup of the marriage. It can be claimed by filing petition, once the order is passed then they

are not bound to cohabitate.

The grounds for judicial separation, If the following grounds are proved then the judicial

separation can be granted. They are:

i) Cruelty – either of the spouse or both are cruel for one another.

ii) Desertion – either of the spouse is not alive and is missing since seven years and

above

iii) Adultery – either of the spouses is being cheated upon by other spouse.

iv) Forced conversion of religion – either of the spouses is forcing the other one to

change and convert to his or her religion.

v) Incurable diseases such as leprosy, cancer, Ebola etc.

vi) Insanity or abnormality – either of the spouses is not in a sound mind.

vii) Venereal diseases – either of the spouses is suffering from sexual diseases such as

HIV, AIDS, genital herpes, syphilis etc.

viii) Rape, sexual harassment, molestation, bestiality and sodomy.

ix) Renunciation of the world by either of the spouse on religious or spiritual grounds.

x) Child marriage – either of the spouses is married without his or her consent before

attaining the age of 18 years.

The judicial separation can be granted only if the above grounds are achieved. But in the case of

Seema and Rajesh, even though the act of Rajesh by beating his wife Seema and his Daughter

and also by beating Vijay with whom Seema had an external affair, the act done by Rajesh does

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not amount to cruelty as per section 498A of the Indian penal code the main purpose of this

section of cruelty is should be a “willful conduct” which is of such a nature as likely to drive the

woman commit suicide or to cause grave injury or danger to life, limb or health of the women.

There must be a willful conduct for the cruelty.

In the case of Avinash Chandrakant Deshmukh and ors vs. state of Maharashtra 2 the Bombay

high court had held that every case of harassment or cruelty to a married women not “cruelty”.

The court opined that section 498A of the Indian Penal code would not be attracted for every

instance of cruelty against married women. The court said that “section 498A of the Indian penal

code does come into play in every case of harassment and or cruelty to a married women, it is

required to be shown is willful conduct of such nature as a likely to drive or propel or compel a

married women to commit suicide or to cause grave injury or danger to her life, limb or health. It

must be shown that acts were of such a nature, as were sufficient for causing a married woman to

lose her normal frame of mind.”

The court also explained that “the term “cruelty” implies harsh and harmful conduct with certain

intensity and persistence. It covers acts causing both physical and mental agony and torture. In

order to hold that the acts amount to cruelty, it must be shown that such acts amounts to

unbearable, continuous, repeated acts of brutality.” The court also finally added that “Isolated

singular act beating does not fulfill the requirement of legal cruelty which implies harsh and

harmful conduct of such a nature so as to drive a woman to commit suicide or to cause grave

injury or danger to her life, limb or health.”

So there must be a willful conduct and continuous beating cannot not be bearable will amount to

legal cruelty. The Rajesh started to beat Seema and his daughter Aashna when he was drunken,
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CA 482 NO.603 OF 2018

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that too Seema was able to bare his beatings and still she was living with him and also in his

daughter birthday party Rajesh punched Vijay in his face because of the extra marital affair with

Seema. Rajesh does not willfully want to punch Rajesh; he suddenly saw him and punched him.

The beatings were also got by Seema by Rajesh which is also not due to the willful conduct, the

extra affair of Seema with Vijay made him to beat Seema. So the behavior of Rajesh does not

amount to cruelty so it does not falls under the grounds for the judicial separation. Hence the

decree for the judicial separation cannot be passed

PRAYER

WHEREFORE, in the light of the issues raised, arguments advanced and authorities cited, it is

most humbly prayed before this hon’ble family court that it may gracefully be pleased to:

1. Declare and allow the petition for the restitution of conjugal rights filed under the section

9 of the Hindu marriage act 1955

2. Uphold the constitutional validity of the restitution of conjugal rights

3. Dismiss the petition for the judicial separation filed under the section 10 of Hindu

Marriage act 1955.

And/or

Pass any order that it deems fit in the best interests of justice, equity and good conscience

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And for this the respondent as in duty bound shall humbly pray

The respondent

Sd/-

……………………

Counsel of the respondent

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