TC - N11

INTRA-CLASS MOOT COURT-2021

ICFAI LAW SCHOOL, THE ICFAI UNIVERSITY, DEHRADUN

BEFORE THE HON’BLE HIGH COURT OF UTTARAKHAND

Anupama …Appellant

V.

Vanraj …
Respondent

___________________________________________________________________________
Humbly submitted by the counsel appearing on behalf of the respondent

MEMORANDUM OF ARGUMENTS FOR THE PETITIONER

Memorial on behalf of the respondent TC-N11

TABLE OF CONTENTS

LIST OF ABBREVIATIONS ………………………………………………...……………..

2
INDEX OF AUTHORITIES…………………………………………………………..
……….3-4
STATEMENT OF JURISDICTION…………… ………………………………………5-6
STATEMENT OF
FACTS…………………………………………………………………...7-8
ISSUES RAISED………………………………………………………………...................9
SUMMARY OF ARGUMENTS…………………………………………………………..10-
11
ARGUMENTS ADVANCED…………………………………………………………...12-20
CONTENTION 1: WHETHER THERE WAS MENTAL CRUELTY ON THE
RESPONDENT BY THE APPELLANT?.......................................................................12-
16
1.1) THERE WAS ACTUAL DESERTION BY THE PETITIONER …………………...12-
13
1.2) THE APPELLAN TARNISHED THE REPUTATION OF THE RESPONDENT BY
FALSELY ALLEGING HIM OF HAVING ILLICIT RELATIONSHIP WITH HIS
COLLEAGUE ……………………………………………………………………………….13
1.3) THERE WAS MENTAL CRUELTY ON THE RESPONDENT…………….……...14-
16
CONTENTION 2: WHETHER THE DIVORCE DECREE PASSED BY THE FAMILY
COURT IS VALID?..........................................................................................................16-
20
2.1) DESERTION AS A GROUND FOR DIVORCE…………………………………….17-
18
2.2) CRUELTY AS A GROUND FOR DIVORCE ………………………………………18-
20
PRAYER…………………………………………………………………………………….21

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LIST OF ABBREVIATIONS

AIR All India Reporter

HMA Hindu Marriage Act

IPC Indian Penal Code

Sec. Section

Art. Article

i.e That is

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INDEX OF AUTHORITIES

LIST OF STATUTES:

1. The Hindu Marriage Act, 1955 (25 of 1955)

2. Indian Penal Code (45 of 1860)

3. The Family Court Act, 1984

BOOKS REFERRED:

1. Dr. Paras Diwan, Modern Hindu Law, 24th Edition, Allahabad.

2. Indian Penal Code as amended by the criminal law amendment act,

2018 (Author : Prof. S.N. Mishra).

ONLINE DATABASE:

1. http://www.indiankanoon.com

2. http://www.lawctopus.com

3. Manupatra.

4. Lexis advance

CASES CITED:

 Bipin Chander Vs Prabhawati, AIR 1957 SC 176

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 Gur Bachan Kaur v. Preetam Singh, 1998 (1) AWC 275

 Ram kumar v/s Raksha, AIR 2003 P H 334, I (2004) DMC 347, (2003)
133 PLR 707
 Smt. Santana Banerjee v/s Sachindra Nath Banerjee, AIR 1990 Cal
367, 94 CWN 769, II (1990) DMC 33
 Maya Devi v. Jagdish Prasad, AIR 207 SC, 1426
 Kusumlata v. Kamptaprasad, AIR 1965 All 280
 Paras Ram v. Kamleshi, AIR 1985 P H 199
 Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, (2003) 6
SCC 334
 Savitri Pandey v. Prem Chandra Pandey, Appeal (civil) 20-21 of 1999
 Bipin Chander Jaisinghbhai Shah Vs Prabhawati, 1957 AIR 176 ; 1956
SCR 838
 Tapan Kumar Chakraborty v. Smt. Jyotsna Chakraborty, AIR 1997 Cal
134
 Rajan Vasant Revankar v. Mrs. Shubha Rajan Revankar, AIR 1995
Bombay 246. (13)
 Sarojs case, AIR 2003 Punj and Har 566 : 2003 (2) Hindu LR 678
 Balram Prajapati v Susheela Bai, II (2003) DMC 708

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Memorial on behalf of the respondent TC-N11

STATEMENT OF JURISDICTION

The Hon’ble court of Uttarakhand has the jurisdiction to hear the instant matter under section
19(1) of the Family Courts Act, 1984.

Section 19 of the Family Court Act read as:

SECTION 19. Appeal.-

(1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code
of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974)
or in any other law, an appeal shall lie from every judgment or order, not being an
interlocutory order, of a Family Court to the High Court both on facts and on law. -(1) Save
as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil
Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974) or in any
other law, an appeal shall lie from every judgment or order, not being an interlocutory order,
of a Family Court to the High Court both on facts and on law."

(2) No appeal shall lie from a decree or order passed by the Family Court with the consent of
the parties 1[or from an order passed under Chapter IX of the Code of Criminal Procedure,
1973 (2 of 1974): Provided that nothing in this sub-section shall apply to any appeal pending
before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure
1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act, 1991].

(3) Every appeal under this section shall be preferred within a period of thirty days from the
date of the judgment or order of a Family Court. 1[(4) The High Court may, of its own
motion or otherwise, call for and examine the record of any proceeding in which the Family
Court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal
Procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to the correctness, legality
or propriety of the order, not being an interlocutory order, and, as to the regularity of such
proceeding.] 2[(4) The High Court may, of its own motion or otherwise, call for and examine
the record of any proceeding in which the Family Court situate within its jurisdiction passed
an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) for the
purpose of satisfying itself as to the correctness, legality or propriety of the order, not being

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an interlocutory order, and, as to the regularity of such proceeding.]" 2[(5)] Except as

aforesaid, no appeal or revision shall lie to any court from any judgment, order or decree of a
Family Court. 2[(6)] An appeal preferred under sub-section (1) shall be heard by a Bench
consisting of two or more Judges. 3[(6)] An appeal preferred under sub-section (1) shall be
heard by a Bench consisting of two or more Judges."

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Memorial on behalf of the respondent TC-N11

STATEMENT OF FACTS

BACKGROUND

1) Mr. Vanraj, a Hindu by religion married Miss. Anupama on 17th November, 2015 as per
Hindu rituals. Thereafter they resided in the matrimonial home in Vikas Naga, Uttarakhand
with the parents of Mr. Vanraj. Mr. Vanraj's mother was an orthodox female and had high
belief in mythology and in Hindu God. She had firm belief that to attain Moksha, a man
needs a son, therefore she always insisted on Anupama to conceive and give the privilege to
them of being grandparents to a grandson.

UNFOLDING OF EVENTS

2) Miss. Anupama delivered a baby girl on 9th April, 2017 and thereafter differences arose
between them. Vanraj's mother continuously passed insulting remarks upon Anupama and
her baby girl. She often remarked that if Anupama does not give their family a boy, she will
ask Vanraj to marry another girl. Several times Vanraj fought with his own mother, telling
her that he is satisfied with his wife and has no complaints from her. Anupama started
persuading Vanraj to leave the house of his parents and move to a new house to which Vanraj
never agreed. He was adamant that he wants to stay with his family.

3) Finally on 22 December, 2017Anupama , frustrated with the constant bickering and

inability of her husband to change residence, decided to leave the matrimonial house with her
daughter and return to her parent's house.

4) Vanraj visited Anupama 's house several times. However never found her at home. He
could never even visit his daughter because Anupama was never available. Vanraj was
frustrated with Anupama because she was never available and he could never see his
daughter even after trying several times. During this course of time, Vanraj developed an
intimate relationship with his colleague Kavya. Even Vanraj's family accepted his

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relationship with Kavya in the hope of a grandson. Anupama was still unaware about the
relationship. Finally, on 2nd January 2020, Vanraj frustrated with Anupama , filed for
divorce u/s 13 of the Hindu Marriage Act alleging desertion by his wife. The summons was
issued to Anupama at the address shown but the same were returned by some Ms. Devika
marked as 'refused to accept'. The family court considering it as good service proceeded with
the matter.

5) The petition was heard ex parte and on the basis of evidence adduced by Vanraj, the family
court granted divorce to the husband on 16 September, 2020. The copy of the order was sent
by Vanraj to Anupama on the address provided.

6) On 20 December 2020, Vanraj marries kavya, a Hindu by religion. At the time pf

marriage Kavya was pregnant with his child and her delivery was due on 30th May 2021.

7) Meanwhile, one of Anupama 's relative discovered the fact of Vanraj's marriage with
Kavya and told Mrs. Anupama about the same on 17th April, 2021. Accordingly Mrs.
Anupama filed an appeal on 3 May, 2021 before the High Court for setting aside theexparte
decree passed by the Family Court. She stated that she was unaware of the proceedings as the
summons was served on the address on which she was not residing. Due to the pandamic
outbreak Anupama on 2nd January shifted to her, village Banbasa , champawat for 6 months,
later she settled in Haridwar with her parents and daughter. She also stated that her parents
moved to a new house and accordingly, she also went to the new house. Furthermore, she
also contended that she never had the intention to desert Vanraj but only wanted to teach his
mother a lesson. She argued that she was frustrated with the constant remarks by Vanraj's
mother and hence decided to leave the matrimonial house but never desired to sever the
matrimonial bond.

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STATEMENT OF ISSUES

ISSUE 1

WHETHER THERE WAS MENTAL CRUELTY ON THE RESPONDENT BY THE

APPELLANT?

ISSUE 2

WHETHER THE DIVORCE DECREE PASSED BY THE FAMILY COURT IS VALID?

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SUMMARY OF ARGUMENTS

I. WHETHER THERE WAS MENTAL CRUELTY ON THE RESPONDENT BY THE

APPELLANT?

It is humbly submitted before the Hon’ble court that the contesting appellant has treated the
respondent with mental cruelty and the respondent should be given divorce on the ground of
cruelty as stated in Hindu Marriage Act 1955.

According to Sec. (13) (ia)

(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-

(2) (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or]

Under the Modern Hindu Law, cruelty was a ground both for judicial separation and divorce.

In the present case, abandoning the respondent for more than 2 years and not even taking the
slightest effort to meet and talk things out with him makes the appellant liable for desertion.

Moreover, falsely alleging the respondent of having illicit relationship with his colleague
Kavya adds up to the mental trauma of the respondent.

II. WHETHER THE DIVORCE DECREE PASSED BY THE FAMILY COURT IS

VALID?

Divorce, also known as dissolution of marriage, is the termination of a marriage or marital

union, the canceling or reorganizing of the legal duties and responsibilities of marriage, thus
dissolving the bonds of matrimony between a married couple under the rule of law of the
particular country or state.

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There are various types though specified in the HMA,1955 for dissolving marriage or for
filing for divorce proceeding in court which includes judicial separation, nullity of marriage,
divorce, mutual consent.

 As defined under Sec. 13 and 13A,

Divorce is the dissolution of the marriage by both the parties on the basis of cruelty,
desertion, adultery etc. Here the alimony as well as maintenance comes into force, if one of
the spouses wants. The status after divorce is divorcee for the person.

It is humbly submitted before this Hon’ble Court that the divorce decree passed by the family
court is valid, as the respondent has the right to claim divorce under Sec.13 of HMA,1955.

a) There is desertion here, as mentioned under Sec. 13(1)(ia) of HMA

b) As well as, there is cruelty as mentioned under Sec. 13(1)(ib) of HMA

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ARGUMENT ADVANCED

I. WHETHER THERE WAS MENTAL CRUELTY ON THE RESPONDENT BY THE

APPELLANT?

It is humbly submitted before the Hon’ble court that the contesting respondent has treated the
appellant with mental cruelty and the appellant should be given divorce on the ground of
cruelty as stated in Hindu Marriage Act 1955.

a) The counsel on the behalf of the respondent most humbly submits that the instant case
falls under the purview of desertion under Sec. 13(1)(ib) of HMA,1955. All the elements of
desertion are being fulfilled in this case by the respondent as she left the respondent without
his consent and did not return even after 2 years and hence it implies her Intention to desert
i.e., Animus deserdendi (Permanent in nature).

b) The appellant falsely accused the respondent of having illicit relationship with Kavya
hence resulting in his character assassination.

Both of these factors contribute to the mental cruelty suffered by the respondent and hence
giving him enough and reasonable ground for divorce.

[1.1] THERE WAS ACTUAL DESERTION BY THE PETITIONER

1. It is humbly submitted before this Hon’ble Court that the appellant is liable for desertion
under Sec. 13(1)(ib), as all the elements required under desertion is being fulfilled in the
instant case.

2. The conceptualisation of “desertion” is incorporated in the Explanation to Section 13(1) of

the Hindu Marriage Act, 1955. The Explanation goes as follows:

“In this subsection, the expression “desertion” means the desertion of the petitioner by the
other party to the marriage without a reasonable rationale and without or against the wish of
such party, and includes the wilful neglect of the petitioner by the other party to the

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marriage, and its grammatical variations and cognate expressions shall be construed
accordingly.” 1

3. The elements of desertion was made clear under the case of Bipin Chander Vs Prabhawati2,

‘For the offence of desertion, so far as the deserting spouse is concerned, two essential
conditions must be there, namely (1) the factum of separation, and (2) the intention to bring
cohabitation permanently to an end (animus deserendi). Similarly two elements are essential
so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of
conduct giving reasonable cause to the spouse leaving the matrimonial home to form the
necessary intention aforesaid’

4. In the present case, Appellant left on 22nd December hence fulfilling the element of
factum of separation. Even when respondent visited her home, she was never available and
not only that he could never even meet his daughter. And this act continued for more than 2
years when finally frustrated from this separation respondent filed for divorce on 2nd January
2020, which shows appellant’s intention to bring cohabitation to an end, as she never even
tried to meet and talk things out with respondent once in this span of 2 years.

5. Taking the absence of consent in consideration, respondent’s consent was never there, he
clearly didn’t want his family to break apart and that’s why he was not ready to leave his
parental home,even though he was being pressurised by appellant for the same. He even
supported her the appellant and even confronted his own mother and even fought with her,
telling her that he is satisfied with his wife and has no complaints from her. And when he
didn’t agree to leave his prental home, the appellant left him and wen to her parent’s house
with her daughter without even discussing the same with respondent. In the case of Gur
Bachan Kaur v. Preetam Singh3, the court held that the desertion shall not be done by the
consent as desertion requires the guilt by one of the parties and desertion by the consent isn’t
considered as desertion.

1
Desertion as a ground of divorce, Navin Kumar Jaggi, Lawyersclubindia
2
AIR 1957 SC 176
3
1998 (1) AWC 275

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[1.2]THE APPELLAN TARNISHED THE REPUTATION OF THE RESPONDENT BY

FALSELY ALLEGING HIM OF HAVING ILLICIT RELATIONSHIP WITH HIS
COLLEAGUE

6. Character assassination is the process that destroys the credibility and reputation of a
person, institution, organization, social group, or nation with methods, such as raising false
accusations, planting and fostering rumors, and manipulating information. It is an attempt to
tarnish a person's reputation involving exaggeration, misleading half-truths, or manipulation
of facts to present an untrue picture of the targeted person.

7. In the present case the appellant falsely accused the respondent of having illicit
relationship with his colleague Kavya in an attempt to tarnish his reputation.

8. The appellant has no solid proof which shows that the respondent developed intimate
relationship with Kavya as soon as she left home, her claim is merely based on hearsay.

9. In case Ram kumar v/s Raksha4, The learned Additional District Judge, after taking into
consideration the evidence led by both the parties, dismissed the divorce petition filed by the
appellant, while holding that the allegations leveled by the appellant against the respondent
have not been proved.

In the case of Smt. Santana Banerjee v/s Sachindra Nath Banerjee 5 husband on various false
allegations, but it was ultimately proved that such allegations were false and baseless and the
complaint ... that the wife made false complaints to the police and also made false and
unfounded allegation of having an affair.

10. Hence, accusing the respondent of such an offence without any solid proof beforehand
tarnished the reputation of the respondent in an unrecoverable manner.

[1.3] THERE WAS MENTAL CRUELTY ON THE RESPONDENT

4
AIR 2003 P H 334, I (2004) DMC 347, (2003) 133 PLR 707
5
AIR 1990 Cal 367, 94 CWN 769, II (1990) DMC 33

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11. It is most humbly submitted before this Hon’ble Court that the contesting respondent has
treated the appellant with cruelty as defined under sec. 13(1)(ia) of HMA, 1955. It is also an
offence under Sec.498A of IPC.

12. The present case concerns mental cruelty and even though none of these acts define
mental cruelty specifically, yet in number of cases the Court considered the question of
mental cruelty and decided the cases in the same way as the case of physical cruelty.6

13. The term ‘cruelty’ constitutes both acts of physical and mental cruelty. Even tough act
does not define mental cruelty as such, the supreme court has in many verdicts defined and
established the grounds for mental cruelty.

14. In Maya Devi v. Jagdish Prasad 7 cruelty need not be physical. If from the conduct of the
spouse it is established or an inference can be legitimately drawn that the treatment of the
spouse is such that it causes apprehension in the mind of the other spouse, about his or her
marital welfare then the conduct amounts to cruelty.

15. In the present case, the conduct of the appellant of abandoning the respondent for and
never returning back to him even though he tried to visit her several times made him suffer
mentally. The appellant did not even let him meet his daughter in this whole span of almost
two years.

16. The false accusation of adultery or unchastity amounts to cruelty came to be established
at an early period. Such accusation can take various forms. Thus, In Kusumlata v.
Kamptaprasad8 , false accusation of adultery were made orally, in lawyer’s notice and
pleadings, while in Saptmi v. Jagdish9, the husband constantly called his wife a prostitute. In
Paras Ram v. Kamleshi10, the Punjab and Haryana high court took the view that mere
allegation of immorality in written statement does not amount to cruelty, though the Delhi
High Court took the view that if the respondent made false charges of adultery in cross-
examination or in his disposition, it would amount to cruelty.

6
V. Bhagat v. D Bhagat 1994 AIR 710, 1994 SCC (1) 337 (SC defined mental cruelty as that conduct which
inflicts upon the other party such mental pain and suffering would make it not possible for that party to live with
other.
7
AIR 207 SC, 1426
8
AIR 1965 All 280
9
Decided On, 20 November 1968
10
AIR 1985 P H 199

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17. In the case of Monika Sharma v. Kuldeep Kumar Dogra 11, the Court referred to
Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate12, where it was noted that
conscious and deliberate statement delivered with pungency placed on record through
pleadings cannot be ignored lightly or brushed aside while determining acts of cruelty in a
petition for divorce. The Court while upholding the decision of the Trial Court of granting
divorce on account of cruelty, observed that as there is reasonable doubt in the mind of the
respondent that it would be harmful to live with his wife any further. Moreover, he cannot be
expected to live with his wife due to the serious and unsubstantiated allegations of adultery
amounting to cruelty.

18. In the instant case, accusing the respondent of having illicit relationship with his
colleague without any solid proof tarnished the reputation of the respondent, contributing to
his mental suffering. The appellant merely exaggerated the circumstances, when Kavya was
only trying to support the respondent in his difficult situation.

II. WHETHER THE DIVORCE DECREE PASSED BY THE FAMILY COURT IS

VALID?

It is most humbly submitted that the decree of divorce passed by the family court is valid as
the respondent is well within his rights to claim divorce under Sec. 13(1)(ib) of HMA, 1955,
as all the requirements of the same is being fulfilled here.

As mentioned under Section 13(1) in The Hindu Marriage Act, 1955,

(1) Any marriage solemnised, 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,

(ia) has, after the solemnisation 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;

These two requirements of Sec.13(1) is being fulfilled in this case hence giving respondent
reasonable and sufficient ground for divorce.

11
Decided on: 31.12.2018
12
(2003) 6 SCC 334

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Hence, the divorce decree is valid, making the second marriage of the respondent with Kavya
valid, as the first marriage with the appellant has been dissolved under Sec.13 of HMA,1955.

[2.1] DESERTION AS A GROUND FOR DIVORCE

1. It is most humbly submitted before this Hon’ble Court that this action of abandonment
from the side of the appellant gives enough ground to the petitioner to claim divorce, as
desertion is one of the ground of divorce under Sec.13(1)(ib) of HMA,1955.

2. The Hon’ble Supreme Court in Savitri Pandey v. Prem Chandra Pandey 13 elaborated and
shed light on the concept of desertion. To reproduce what the court said,

“Desertion in order to seek divorce under the Act means the deliberate permanent forsaking
and abandonment by one spouse of the other without that other’s consent and without
reasonable and just reason. In other words, it is an absolute repudiation of the obligations of
marriage, it is not the withdrawal from a place, but from a state of things . Desertion cannot
be made out by a single act but, it is a continuous course of conduct.”

3. Desertion without any reasonable cause, when one spouse, against the consent of the other,
voluntarily leaves unexplained, and does not come back for a continuous period of two or
more years, the spouse who is left behind may obtain divorce on the ground of desertion. It
connotes one spouse renouncing the marital obligations and leaving permanently. The case of
Bipin Chander Jaisinghbhai Shah Vs Prabhawati 14 is very interesting where the husband set
out with intention to desert his wife, but later had a change of mind and tried to come back.
The wife approached the court asking for divorce on grounds of desertion. However the
husband argued that when he tried to come back he was prevented from doing so by his wife.
The court held it did not amount to desertion on his part.15

4. In the instant case not only there was actual desertion by leaving the matrimonial home and
abandoning her own husband without the consent from the same, the appellant even refrained
from keeping any contact with her husband, and even prevented him from meeting his own
daughter for continuous course of more than 2 years. No effort of continuing marital

13
Appeal (civil) 20-21 of 1999
14
1957 AIR 176 ; 1956 SCR 838
15
Dissolution of Hindu Marriage, Lawbhoomi.com

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obligations were taken in this period of two years by the appellant and even the efforts taken
by the respondent were avoided and shunned by the appellant, hence there was a withdrawal
from the marital home as well as state of things.

[2.2] CRUELTY AS A GROUND FOR DIVORCE

5. The Hindu Marriage Act-1955 has given the legal provision for divorce on basis of cruelty
under section – 13(1)(ia) as follows;

“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 has, after the solemnization of the marriage, treated the
petitioner with cruelty”.

6. On basis of this section we can explain this legal basis for the divorce as anybody who is
getting suffer from the other party in physical manner or a mental torture or any other type of
harassment then the other can reach to the court with this base and claim for the divorce.16

7. This Court in FAO 84-M of 2002 decided on February 19, 2003 (reported in air 2003 NOC
566 : 2003 (2) Hindu LR 678) (Saroj v. Vinod Kumar Tanwar) had observed as follows : "it
is not in dispute that the appellant wife while filing the written statement had levelled very
serious allegations against the respondent-husband to the effect that he was having illicit
relations with his own bhabhi i. e. widow of his deceased brother. Not only the aforesaid
allegations have been levelled in the written statement but there is absolutely no evidence led
by the appellant wife in support thereof. Such serious allegations without any basis and proof
would actually amount to a cruelty in itself. The allegations of the kind noticed above and the
allegations that the husband was living in an adultery with his own Bhabhi are very serious
allegations. A bald statement made by the appellant wife to support the above allegations
cannot be treated to be a sufficient proof. It has been held in the case of Tapan Kumar
Chakraborty v. Smt. Jyotsna chakraborty 1997 (2) Hindu Law Reporter 19 : (AIR 1997 Cal
134)17 that levelling of reckless and baseless allegations like adultery amount to cruelty qua

16
Cruelty as a ground for divorce, legalservicesindia.com
17
AIR 1997 Cal 134

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the spouse against whom such allegations are levelled. In a similar situation even this Court
had taken an identical view in the case of Manjit Kaur v. Avtar Singh 2001 (2) Marriage and
Divorce Judicial Reports 351. A similar view was taken by the Bombay High Court in the
case Rajan Vasant Revankar v. Mrs. Shubha Rajan Revankar AIR 1995 Bombay 246. (13) 18
IN view of the aforesaid law laid down in Sarojs case (AIR 2003 Punj and Har 566 : 2003 (2)
Hindu LR 678)19 (supra) and other authorities enumerated in the aforesaid judgment, I have
no hesitation in holding that the acts of levelling false allegations by the appellant-wife have
cast cruelty to the respondent-husband giving him a justification to seek divorce from the
appellant-wife.

8. The respondent did not even get to meet his daughter in almost 2 years, as the appellant
shifted to her village Banbasa, Champawat and after six months settled in Haridwar with her
daughter without even informing the respondent once.

9. In Balram Prajapati v Susheela Bai20,

In this case, the petitioner filed the divorce petition against his wife on the ground of mental
cruelty. He proved that his wife that behaviour with him and his parents was Aggressive and
uncontrollable and many times she filed the false complaint against her husband. The court
accepts the petition and grants the divorce on the ground of cruelty.

10. All these incidents led to the mental suffering of the respondent, which left the respondent
with no other choice but to claim divorce, as this was much more than normal wear and tear
of married life, enough to deteriorate the mental health of the respondent even further.

11. Hence, the ex parte decree of divorce passed by the family court under Sec.13 of
HMA,1955 is valid, dissolving the marriage between the respondent and appellant.

12. Since the divorce decree passed by the family on 16th September is valid, this makes the
respondent’s marriage with Kavya which took place on 20 December valid.

13. If the party gets remarried after exparte decree of Divorce, & then the opposite party gets
the order to stop the second marriage from appropriate Court, in that case the second
marriage will be considered as valid.21
18
AIR 1995 Bombay 246. (13)
19
AIR 2003 Punj and Har 566 : 2003 (2) Hindu LR 678
20
Decided On, 22 April 2003
21
Can second marriage be cancelled after ex parte divorce, sahodar.in

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Memorial on behalf of the respondent TC-N11

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Memorial on behalf of the respondent TC-N11

PRAYER

Wherefore in the light of the issues raised, argument advanced and authorities cited, it most
humbly prayed before the Hon’ble High Court , that it may graciously be pleased to adjudge
and declare
1. That the appeal against the decree passed by the Family Court is not maintainable
2. The contesting appellant is liable for causing mental cruelty and hence punishable
under Sec.498A of IPC.

AND/OR
Pass any other order, direction on relief that it deems fit in the interest of justice, Equity
and good conscience.
For this act of kindness, the appellant shall duty bound forever Pray.

(COUNSEL FOR THE RESPONDENT)

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