Petitioner Memorial Moot Court File For Respondent With Moot Pronlem Wih Martial Rape Case

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Petitioner Memorial - MOOT COURT FILE FOR

RESPONDENT WITH MOOT PRONLEM WIH MARTIAL
RAPE CASE
Ballb (Chaudhary Charan Singh University)
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T.C-03
MOOT COURT COMPETITION, 2020
BEFORE THE HON’BLE SUPREME COURT OF INDIA
SPECIAL LEAVE PETITION
UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA
NAINA………………………………………..PETITIONER 1
POOJA……………………………………….PETITIONER 2
VS.
ARJUN………………………………………..RESPONDENT
ON SUBMISSION BEFORE THE HON’BLE CHIEF JUSTICE
AND HIS
COMPANION JUSTICE OF THE SUPREME COURT OF INDIA
MEMORIAL ON BEHALF OF THE PETITIONER

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MOOT COURT COMPETITION
INDEX
i. List of abbreviations…………………………………………………………….3
ii. Index of authorities…………………………………………………………….5
iii. Statement of Jurisdiction……………………………………………………..8
iv. Statement of Facts……………………………………………………………9
v. Issues presented……………………………………………………………….11
vi. Summary of Arguments……………………………………………………12
vii. Arguments Advanced……………………………………………………..14
[1]. whether the appeal of both the petitioners is maintainable or not?
[2]. whether irretrievable breakdown of marriage is a valid ground for

divorce? If yes, whether plaintiff 1 is entitled for divorce against respondent?
[3]. Whether Pooja is entitled for Maintenance under DV Act or not?
[4]. Whether Naina is entitled for divorce or the Restitution of Conjugal

Rights shall be given?
viii. Prayer for Relief…………………………………………………………30
2
MEMORIAL ON BEHALF OF PETITONER

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LIST OF ABBREVIATIONS
AIR: All India Reporters
Anr: Another
App: Appeal
Art: Article
Bom: Bombay
Crl: Criminal
Crpc: Code of Criminal Procedure
Del.: Delhi
DMC: Domestic and Matrimonial Cases
DV: Domestic Violence
Etc: Et Cetra
HC: High Court
Hon’ble: Honorable
IPC: Indian Penal Code
MP: Madhya Pradesh
No: Number
Pg: Page
Pwdva: Protection of Women from Domestic Violence Act, 2005
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Ors: Other
Revn: Revision
SC: Supreme Court
SCC: Supreme Court Cases
SLP: Special Leave Petition
U.K.: United Kingdom
U.P.: Uttar Pradesh
V: Versus
Vs: Versus
W.P: Writ petition
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INDEX OF AUTHORITIES
Art. 136 Constitution of India
STATUTES
1. Protection of women against Domestic Violence Act, 2005
2. Hindu Marriage Act, 1955
3. Criminal Procedure Code 1973
4. The Indian Penal Code [45 of 1860]
5. The Indian Evidence Act, 1872
FOREIGN LAWS
1. The Divorce Act [Canada], 1968
2. [Australia] Family Law Act, 1975
3. Matrimonial Causes Act, 1973
CASES
1. Abhijit Bhikaseth Auti v.State of Maharashtra and Others

2. Chandrakala Menon vs. Vipin Menon AIR 1993, 2 SCC 6
3. .Chanmuniya v. Chanmuniya Kumar Singh Kushwaha (2011) 1 SCC 141.)
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4. .Dhannulal v. Ganeshram, (2015) 12 SCC 301.

5. .Durga P.Tripathy v. Arundhati Tripathy, (2005) 7 SCC 353
6. Indra Sarma vs. V.K.V Sarma [Special Leave Petition {CRL.} NO. 4895 OF
2012]
7. Jagdish v. Shyam
8. Kanchan Devi vs. Promod Kumar Mittal AIR (1996) 8 SCC 90
9. Naveen Kohli v. Neelu Kohli [appeal civil 812 of 2004]
10..Pravinaben v. S.T.Arya
11. R...Srinivas Kumar vs. R.Shametha [CIVIL APPEAL NO. 4696 OF 2013]
12. Radhika v. State of M.P.
13..Ram Kali v. Gopal Das, 1971 O;R 1 De; 10 (FB)
14. Revanasiddappa v. Mallikarjun [ (2011) 11 SCC 1 : (2011) 2 UJ 1342]

15. S. Khusboo versus Kanniammal and Anr., {Crl. App. No. 913/ 2010 arising
out of SLP {Crl.} No. 4010 of 2008]
16. Sandhya Rani vs. Kalyanram Narayanan AIR(1994) Supp. 2 SCC 588
17. Sangamitra Ghose Vs. Kajal Kumar Ghosh, AIR 2007, 2 SCC page 200
18. Smt. Rita Prajapati V Sanjay Kumar AIR 2017 Jharkhand 41
19. S.P.S. Balasubramanyam v. Suruttayan [(1994) 1 SCC 460 : AIR 1994 SC

133]
20. Vinita Saxena v. Pankaj Pandit [AIR 2006 SC 1602]
BOOKS
1... R.K. Aggarwal Hindu Law
2. Dr. J.N. Pandey Constitutional Law of India
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3. Paras Diwan, Divorce Structure of the Hindu Marriage Act, 1955 and the
Special Marriage Act, 1954
4. Bare Act on Hindu Laws [2016] Universal Law Publishing Company Pvt. LTD.
New Delhi
5. T. Bhattacharya the Indian Penal Code [Ninth Edition 2019]
WEBSITES
1. www.indiankanoon.org
2.www.legalservicesindia.com
3.ecourts.gov.in
4.www.wikipedia.org
5.www.vakilsearch.com
6.www.advocatekhoj.com
7.www.pathlegal.in
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STATEMENT OF JURISDICTION
The Petitioners humbly submits before the Hon'ble Supreme Court of India, the
memorandum for Petitioner in appeal filed by petitioners under, Article 136 of
Constitution of India, which confers special power to Supreme Court to grant
special leave to appeal.
THE PRESENT MEMORIAL SETS FORTH THE FACTS, CONTENTION AND

ARGUMENTS IN THE PRESENT CASE
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STATEMENT OF FACTS
Mr. Neel and Ms. Naina both were belonging to IAS Batch 1998. They were good
friends. They decided to convert that friendship into martial relationship.
Accordingly, with the consent of their parents they got married in the year 2002.
Neel was an orthodox person and had high belief in mythology and Hindu God. He
had firm belief that to attain Moksha man needs a son, therefore, he was insisting
for having a son from the marriage. During the matrimonial life of five years Naina
was employed as IAS officer. She took matrimonial leave and delivered two
babies, one Nidhi in 2004 and second Sunidhi in 2007. Due to absence of male
child there were quarrels and altercation between husband and wife. This resulted
into divorce between them by mutual consent.
During this difficult period, Naina was transferred to Delhi. She met Mr. Arjun a
handsome and efficient IAS officer who expressed his love and desire to get
married with her. As he was already married she waited for divorce. Immediately
after divorce they got married .Soon after the marriage Naina was busy with her
postings and heavy administrative work. Therefore she unilaterally took decision
not to have children within five years of marriage. She was not taking proper care
and giving love and affection to her husband. Mr. Arjun tried his level best to
persuade the matter. But he could not succeed. Naina told Nidhi and Sunidhi that
Mr. Arjun is not their father. She always avoided Mr. Arjun to have pleasure of
Nidhi and Sunidhi’s company as their father.
In 2010 Naina was transferred from Delhi to Mumbai. She shifted with her
daughters to Mumbai and Mr. Arjun continued in Delhi. The behavior of Naina did
not change. She was also dominant and abusive on phone and in person whenever
she was meeting Mr. Arjun. As Mr. Arjun was alone in Delhi and no one to take
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care of him, he hired a domestic servant, Pooja aged 17 years for daily persuades.
As maid was asked to stay in the house, she was taking care of Mr. Arjun. This
leads to development of live in relationship between them.
In August 2011, when Naina visited Delhi she came to know about the relationship
as Pooja was pregnant. Being aggrieved with misconduct and extramarital affair
Naina served notice of divorce.
Wife filed divorce petition in Family Court, Delhi on the ground of irretrievable
breakdown of marriage. Family Court dismissed the said petition. Against the
decision of Family Court, the wife filed appeal in Delhi High Court on the same
ground. High Court dismissed the appeal as there is no specific provision under
existing laws. Then wife filed Special Leave Petition in the Supreme Court stating
that divorce should be granted on irretrievable breakdown of marriage.
Meanwhile Pooja who was live in relationship with Mr. Arjun filed a suit for
maintenance under Domestic Violence Act, 2005 against Mr. Arjun. Her petition
was rejected by Family Court, Delhi on the ground that she was in live in
relationship with the married person. Being aggrieved with the decision of Family
Court, Pooja filed appeal in the Delhi High Court claiming the maintenance under
The Domestic Violence Act, 2005. High Court dismissed the appeal. Against order
of High Court Pooja filed Special Leave Petition in Supreme Court.
Hence both petitions are before Supreme Court. Supreme Court in its discretion
clubbed both matters and called for final hearing.
Kindly argue the matter before the Supreme Court as per relevant provisions in the
light of Supreme Court and High Court Judgements.
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ISSUES PRESENTED
Issue 1
Issue 2
[2]. whether irretrievable breakdown of marriage is a valid ground for divorce? If

yes, whether plaintiff 1 is entitled for divorce against respondent?
Issue 3
[3]. Whether Pooja is entitled for Maintenance under DV Act or not?
Issue 4
[4]. Whether Naina is entitled for divorce or the restitution of conjugal rights shall
be given?
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SUMMARY OF ARGUMENTS
1. Both the appellants have invoked their jurisdiction under Article 136 of the
Constitution of India, 1950 which confers special power to Supreme Court to grant
special leave to appeal. The rejection of appeals of divorce and maintenance by
H.C of Delhi has led to gross injustice to the appellants as both the appeals has a
valid ground for such suit, hence the Special Leave Petition [SLP] is maintainable
under Art. 136.
[2] Whether Irretrievable Breakdown of marriage is a valid ground for

divorce?
Irretrievable breakdown of marriage can be defined as such failure in the

matrimonial relationship or such circumstances adverse to that relationship that no
reasonable probability remains of the spouses remaining together as husband and
wife for mutual comfort and support. Although there is no express provision in the
Indian statutes for this yet there are several precedents by the Courts which
establish that Irretrievable breakdown of marriage could be a valid ground for
divorce.
[3] Whether Pooja is entitled for maintenance under DV Act, 2005?
Pooja and Arjun are living together in a shared household and they are related
through a relationship in the nature of marriage. Now, in case of a live in
relationship also if a women who is unable to take care of herself she can claim
Maintenance from his man. As Pooja is pregnant and can't bear the medical
expenses and Arjun being the father of her unborn child liable for those medical
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costs. In many judgements the SC held that the child in such cases will be
legitimate. Thus, Pooja is entitled for maintenance from Arjun.
[4] Whether Naina is entitled for divorce or the restitution of conjugal rights
shall be granted?
Naina is entitled to get decree of dissolution of marriage against the Respondent

because according to various judgements given by the honorable courts of India it
is apparent that the Irretrievable breakdown of marriage is a valid ground for
divorce on that basis Naina may be entitled for the decree of divorce against Arjun.
And restitution of conjugal rights is not a solution for this issue as Arjun is now
living with Ms. Pooja and she is pregnant also. Thus Naina can't live with a man
who is engaged in such kind of activities in her absence.
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ARGUMENTS ADVANCED
[1]. WHETHER THE APPEAL OF BOTH THE PETITIONERS IS

MAINTAINABLE OR NOT?
1. It is humbly submitted before this honorable Court that Article 136 vests the
Supreme Court of India with a special power to grant special leave. It reads
“Notwithstanding anything in this Chapter, the Supreme Court may, in its

discretion, grant special leave to appeal from any judgement, decree,
determination, sentence or order in any cause or matter passed or made by any
court or tribunal in the territory of India”
2. The Hon’ble Supreme Court in a catena of judgements has pointed out that this
special discretionary power is granted to the Supreme Court to grant leave to
appeal against any judgement in case any substantial constitutional question of law
is involved, or gross injustice has been done. The High Court of Delhi has done
gross injustice to the Petitioners by dismissing the appeal made by them.
3. In Vinita Saxena v. Pankaj Pandit 1where the facts showing that the parties had
the point of no return and it would be futile to drag a dead relationship. The
Supreme Court held that in the circumstance grant of decree is warranted so that
wife may live like a human being. It is a fit case for interference under Article 136,
the Supreme Court ruled.
4. In Naveen Kohli v. Neelu Kohli 2
In this case of irreversible breakdown of marriage, the appellant aggrieved by the

judgement of the High Court had preferred special leave petition under Article 136
1 AIR 2006 SC 1602

2 Appeal {civil} 812 of 2004
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of the Constitution of India. The Supreme Court granted special leave to appeal to
the appellant and set aside the impugned judgement of the High Court and directed
that the marriage between the parties should be dissolved according to the
provisions of the Hindu Marriage Act, 1955.
Moreover, S.C recommended the Union of India to seriously consider bringing an

amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable
breakdown of marriage as a ground for the grant of divorce.
5. Also, in citing the judgement of R.Srinivas Kumar vs. R.Shametha 3
It was pointed out that “In numerous cases, where a marriage is found to be a dead
letter, the court has exercised its extraordinary power under Article 142 of the
Constitution of India to bring an end to it”
6. On November 28, 2013, In Indra Sarma vs. V.K.V Sarma 4the Supreme Court
had held that live- in relationship is neither a crime nor a sin, while asking
Parliament to frame law for protection of women in such relationship and children
born out of it.
7. In Landmark case of S. Khusboo versus Kanniammal and Anr. 5The Supreme

Court has held that living relationship comes under the ambit of Right to life. The
Court held that the act of two grown- ups living together can’t be unlawful.
8. The above judgements of Supreme Court show that a Special Leave Petition is
maintainable in matter of irreversible breakdown of marriage and in cases of Live
in relationship.
3 Civil Appeal No. 4696 of 2013

4 Special Leave Petition {Crl.} No. 4895 of 2012
5 Crl. Appeal No. 913/2010, arising out of SLP{Crl.}No. 4010 of 2008
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In the present case, an exceptional and special circumstance exists and the
appellants are facing substantial and grave injustice due to the judgement of the
Honorable High Court of Delhi.
Hence, it is most humbly requested before this honorable court that appellant’s
request to grant special leave be accepted and the case be proceeded.
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[2] WHETHER IRRTRIEVABLE BREAKDOWN OF MARRIAGE IS A

VALID GROUND FOR DIVORCE? IF YES, WHETHER PLAINTIFF 1 IS
ENTITLED FOR DIVORCE AGAINST RESPONDENT?
Irretrievable Breakdown of marriage" as a ground for Grant of Divorce
1.) Legally speaking, Irretrievable Breakdown of Marriage is defined as:
“The situation that exists when neither or both spouses are no longer able or
willing to live with each other, thereby destroying their husband and wife
relationship with no hope of resumption of spousal duties.”
In other words, irretrievable breakdown of marriage can be defined as such failure

in the matrimonial relationship or such circumstances adverse to that relationship
that no reasonable probability remains of the spouses remaining together as
husband and wife for mutual comfort and support.
2.) In the light of facts and circumstances of this case we would also like to show
the concept of Irretrievable Breakdown of Marriage particularly with reference to
previously decided cases.
In Sandhya Rani vs. Kalyanram Narayanan 6 this Court took the view that since
the parties are living separately for the last more than three years, we have no
doubt in our mind that the marriage between the parties has irretrievably broken
down. There is no chance whatsoever of their coming together. Therefore, the
Court granted the decree of divorce.
In the case of Chandrakala Menon vs. Vipin Menon7 , the parties had been living
separately for so many years. This Court came to the conclusion that there is no
6 reported in (1994) Supp. 2 SCC 588,

7 Reported in (1993) 2 SCC 6
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scope of settlement between them because, according to the observation of this

Court, the marriage has irretrievably broken down and there is no chance of their
coming together. This Court granted decree of divorce.
In the case of Kanchan Devi vs. Promod Kumar Mittal 8, the parties were living
separately for more than 10 years and the Court came to the conclusion that the
marriage between the parties had to be irretrievably broken down and there was no
possibility of reconciliation and therefore the Court directed that the marriage
between the parties stands dissolve by a decree of divorce.
In Durga P.Tripathy v. Arundhati Tripathy9, this Court further observed that

Marriages are made in heaven. Both parties have crossed the point of no return. A
workable solution is certainly not possible. Parties cannot at this stage reconcile
themselves and live together forgetting their past as a bad dream. We, therefore,
have no other option except to allow the appeal and set aside the judgment of the
High Court and granting decree for divorce.
The judgement of the Hon’ble Apex Court in Sangamitra Ghose Vs. Kajal
Kumar Ghosh10, held as follows:
We are fully convinced that the marriage between the parties has irretrievably
broken down because of incompatibility of temperament. In fact there has been
total disappearance of emotional substratum in the marriage. The matrimonial
bond between the parties beyond repair and that the marriage has been wrecked
beyond the hope of salvage and therefore public interest and interest of all
concerned lies in the of the recognition of the fact and to declare defunct de jure
what is already defunct de facto.
8 reported in (1996) 8 SCC 90
9 (2005) 7 SCC 353
10 reported in 2007 2 SCC page 200
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The Delhi High Court in a Full Bench decision in Ram Kali v. Gopal Das11, took,
note of the modern trend not to insist on the maintenance of a union which has
utterly broken down, and observed:
"It would not be practical and realistic approach, indeed it would be unreasonable
and inhumane, to compel the parties to keep up the facade of marriage even
though the rift between them is complete and there are no prospects of their ever
living together as husband and wife."
3.) In India, with regards to the Hindu Marriage Act and Special Marriage Act, the
Government of India has attempted to include ‘Irretrievable Breakdown of
Marriage’ as a ground of divorce as per the recommendations of the 71st report of
the Law Commission of India.
In the case of Navin Kohli vs Neelu Kohli12, the Supreme Court made a strong
plea to the Union of India for incorporating irretrievable breakdown of the
marriage as a separate ground for divorce under Section 13 of the Hindu Marriage
Act 1955 and amending the Hindu Marriage Act.
It is also cited in this case that -
"Once the marriage has broken down beyond repair, it would be unrealistic for the
law not to take notice of that fact, and it would be harmful to society and injurious
to the interests of the parties. Where there has been a long period of continuous
separation, it may fairly be surmised that the matrimonial bond is beyond repair.
The marriage becomes a fiction, though supported by a legal tie. By refusing to
sever that tie the laws in such cases do not serve the sanctity of marriage; on the
contrary, it shows scant regard for the feelings and emotions of the parties.
11 1971 O;R 1 De; 10 (FB),

12 Appeal civil 812 of 2004
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The majority view, which is shared by most jurists, according to the Law
Commission Report, is that human life has a short span and situations causing
misery cannot be allowed to continue indefinitely. A halt has to be called at some
stage. Law cannot turn a blind eye to such situations, nor can it decline to give
adequate response to the necessities arising therefrom."
Paras Diwan has suggested breakdown as a ground for divorce and observed: "It is
submitted that the country should accept without any reservation the breakdown
principle as the basic structure of divorce.13
4.) Irretrievable breakdown of marriage is now considered, in the laws of a number

of countries, a good ground of dissolving the marriage by granting a decree of
divorce.
Under the (Canadian) Divorce Act, 1967-68 irretrievable breakdown of the

marriage is clearly recognized as a ground for divorce, apart from the normal fault
grounds of divorce as adultery, cruelty, bigamy, etc. 14
Under the (Australian) Family Law Act, 1975 the irretrievable breakdown of
marriage is the sole ground for the dissolution of marriage. 15
The British Parliament has enacted the Matrimonial Causes Act, 1973 (which
replaces the Divorce Reform Act, 1969). According to section 116 of that Act, a
petition for divorce may be presented on the ground that the marriage has broken
down irretrievably. In England and Wales, irretrievable breakdown of the marriage
is the sole ground for divorce. To evidence that a marriage has broken down
13 "Paras Diwan, Divorce Structure of the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954
14 (Section 4 of The Divorce Act (Canada), 1968
15 Sec. 48(1)
16 (Section 1(1) of matrimonial causes Act, 1973- Subject to section 3, a petition for divorce may be presented to
the court by either party to a marriage on the ground that the marriage has broken down irretrievably.)
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irretrievably there are five facts you can use: adultery, two years separation (if both
agree), five years separation, desertion and unreasonable behavior.
Therefore, it concludes that Irretrievable Breakdown of marriage is a valid ground

for divorce.
[3] WHETHER POOJA IS ENTITLED FOR MAINTENANCE UNDER DV

ACT OR NOT?
Maintenance may be claimed in Live in relationship
There is no legal definition of live-in relationship however in simple terms it can

be explained as a relationship in the nature of marriage where both partners enjoy
individual freedom and live in a shared household without being married to each
other. In many developed countries like USA (23% in 2003), Denmark, Norway,
and Sweden (above 50 %) and Australia (22%) etc. Live-in relationship are very
commonly practiced, accepted and are not considered to be illegal.
Section 2(f) of the Domestic Violence Act, 2005 defines: Domestic relationship
means a relationship between two persons who live or have, at any point of time,
lived together in a shared household, when they are related by consanguinity,
marriage, or through a relationship in the nature of marriage, adoption or are
family members living together as a joint family.17 By virtue of aforementioned
provision, the court interpreted the expression “relationship in the nature of
marriage. The provisions of Pwdva are presently made applicable to the individuals
who are in live-in relationships. Courts presume live-in relationships to be covered
under the ambit of the expression as the words nature of marriage and live-in
17 S. 2(f) of the Domestic Violence Act, 2005.
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relationship stand on the same line and meaning. This gives women some basic
rights to protect themselves from the abuse of fraudulent marriage, bigamous
relationships and the Term Shared household 18 is defined as ""shared household”
means a household where the person aggrieved lives or at any stage has lived in a
domestic relationship either singly or along with the respondent"
Criminal Procedure Code 1973
In 2003, the Malimath Committee i.e. the Committee on Reforms of Criminal

Justice System, submitted its report and recommended to amend Section 125 CrPC
so as to alter the meaning of “wife”. Owing to this alteration, a revision was made
it expresses that if a female has been in a live-in relationship for a sensible period
of time, she ought to have the legitimate privileges as that of a spouse and can
claim maintenance under Section 125 CrPC.
Evidence Act, 1872
The court may presume the existence of any fact which it thinks likely to have
happened, regard being given to the common course of natural events, human
conduct and public and private business, in a relation as to the facts of the
particular case. Therefore, where a man and a lady live respectively for a long spell
of time as a couple then there would be an assumption of marriage.19(Judicial
Response to Live-in Relationships
S. Khushboo vs. Kanniammal & Anr, 201020. The court held that living together
is not illegal in the eyes of law even if it is considered immoral in the eyes of the
18 Section 2(s) in The Protection of Women from Domestic Violence Act, 2005)
19 S. 114 of the Evidence Act, 1872.
20 S. Khushboo vs. Kanniammal & Anr. (2010) 5 SCC 600
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conservative Indian society. The court stated that living together is a right to life
and therefore not ‘illegal’.
Indra Sarma vs. V.K.V.Sarma, 201321 The recent judgment of the Supreme Court
has illustrated five categories where the concept of live in relationships can be
considered and proved in the court of law
One of them is-Domestic relationship between a married man and an adult

unmarried woman, entered knowingly. Chanmuniya v. Chanmuniya Kumar
Singh Kushwaha22 the Supreme Court held that women in live-in relationships are
equally entitled to all the claims and reliefs which are available to a legally wedded
wife23.
In Abhijit Bhikaseth Auti v.State of Maharashtra and Others on 16.09.2009,

the SC also observed that it is not necessary for woman to strictly establish the
marriage to claim maintenance under sec. 125 of Cr.P.C. A woman living in
relationship may also claim maintenance under Sec.125 CrPC
In Radhika v. State of M.P. the SC observed that a man and woman are involved
in live in relationship for a long period, they will treat as a married couple and their
child would be called legitimate.
Lately, a landmark judgment on 8-4-2015 24 by the seat comprising of Justice M.Y.

Eqbal and Justice Amitava Roy, the Supreme Court decided out that couples
21 [Indra Sarma v. V.K.V. Sarma, Crl. App. No. 2009 of 2013; Decided on 26-11-2013 (SC): 2013 (14) SCALE 448
[K.S. Radhakrishnan and Pinaki Chandra Ghose, JJ]
22 (2011) 1 SCC 141

23 (2011) 1 SCC 38, para 38)
24 [Dhannulal v. Ganeshram, (2015) 12 SCC 301.]
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living in live-in relationship will be presumed legally married. The Bench also
added that the woman in the relationship would be eligible to inherit the property
after the death of her partner
Children Born Out of Live In Relationship entitled for maintenance
The first time when the Supreme Court held the legitimacy of children born out of
live-in relationship was in S.P.S. Balasubramanyam v. Suruttayan25 the
Supreme Court had said, “If a man and woman are living under the same roof and
cohabiting for some years, there will be a presumption under Section 114 of the
Evidence Act that they live as husband and wife and the children born to them will
not be illegitimate.”26 Further, the court interpreted the status and legislation to an
extent that it shows conformity from Article 39(f) of the Constitution of India
which sets out the obligation of the State to give the children adequate opportunity
so that they develop in proper manner and further safeguard their interest.
On 31-3-2011 a Special Bench of the Supreme Court of India consisting of G.S.

Singhvi, Asok Kumar Ganguly in Revanasiddappa v. Mallikarjun 27 remarked
that irrespective of the relationship between parents, birth of a child out of such
relationship has to be viewed independently of the relationship of the parents. It is
as plain and clear as sunshine that a child born out of such relationship is innocent
and is entitled to all the rights and privileges available to children born out of valid
marriages. This is the crux of Section 16(3) of the amended Hindu Marriage Act,
1955
Besides a mother can claim "Lying-in" expenses which include the medical
expenses and hospital costs during the pregnancy and when the baby is born.
25 [(1994) 1 SCC 460 : AIR 1994 SC 133]
26 [ibid]
27 [ (2011) 11 SCC 1 : (2011) 2 UJ 1342]
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Pooja is entitle for maintenance
According to section 2(f) of the Domestic Violence Act, 2005, Pooja and Arjun are
living together in a shared household and they are related through a relationship in
the nature of marriage.
Just like in marriage if a wife is unable to take care of herself then after divorce she
can claim maintenance from her husband, similarly in case of a live in relationship
if a women who is unable to take care of herself she can claim Maintenance from
his man. As we can see in above cases live in relationship is absolutely legal in
India and also a right to life in the eye of law and in addition, there are many
precedents or judgement of Supreme Court which holds that a girl in live in
relationship is entitled to maintenance. Thus Pooja is entitled for maintenance
under Domestic Violence Act.
As Pooja is pregnant and can't bear the medical expenses and Arjun being the
father of her unborn child, she is also entitled for those medical costs from Arjun.
In many judgements the SC held that the child in such cases will be legitimate.
Then being a legitimate child he/she have equal rights of father's property as well
as mother's. Every child has a right to be born freely and safely. Firstly the
constitution of India provides that every person shall have the right to life 28. Thus
the constitution cast the duty upon the state to take all the measures possible to
protect the life of the unborn child.
Thus the fetus also needs the expenses for his birth and post birth expenses
Only the Arjun is liable for these costs because he is the one who was alone and
called Pooja to live with him. He enticed her and later used her and ditched her
28 (Article-21)
25

lOMoARcPSD|19078271
when she became pregnant. Thus he's is liable to pay maintenance as now she can't
trust anybody and cannot give proper care to him/her.
[4] WHETHER NAINA IS ENTITLED FOR DIVORCE OR THE

RESTITUTION OF CONJUGAL RIGHTS SHALL BE GIVEN?
Naina is entitled to get decree of dissolution of marriage against the

Respondent
1. According to Hindu Marriage Act, 1955, section 13(1)(i)
"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, had voluntary sexual intercourse with any person other than his or
her spouse"
2. It is clear from the facts of this case that Arjun is having an extramarital affair
with a person other than his wife. He asked his maid to live with him during her
absence and later that maid also become pregnant. It will be really difficult for
Naina to live with a man who is indulged in such kind of immoral conduct. In
Addition it will be a feeling of embarrassment for Nidhi and Sunidhi, Naina's two
daughters, to live with a father who is immorally living with his concubine. They
will be humiliated by society.
3. On the other hand, almost 3 years have passed but there was no sign of love or
physical relationship between them, and many years have elapsed since the
spouses living separately. In these circumstances it can be reasonably inferred that
the marriage between the parties has broken down irretrievably. There is no
cordiality left between the parties and there is no possibility of their living together
26

lOMoARcPSD|19078271
as the Respondent. A marriage between the parties is only in name. The marriage
has been wrecked beyond the hope of salvage and public interest. There has been
total disappearance of emotional substratum in the marriage is gained by trying to
keep the parties tied forever to a marriage which in fact has ceased to exist.
Thus the petitioner1 is entitled to get decree of Dissolution of marriage against Mr.
Arjun, the Respondent.
No ground for restitution of conjugal rights
4. According to Section 9 of the Hindu Marriage Act, 1955 - When either the
husband or the wife has, without reasonable excuse, withdrawn from the society of
the other, the aggrieved party may apply, for restitution of conjugal rights and the
court, on being satisfied of the truth of 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 accordingly.
For this provision to apply there shall be conjugal rights which are taken away
from one spouse but in case of Arjun his conjugal rights are not taken away he was
the one who is bringing in another woman in his house.
5. Following are the valid points on which the court passes the order of restitution
of conjugal rights:
If the petitioner proves in the court that the respondent (spouse) withdrawn from
his/her society without giving any reasonable excuse.
The restitution of Conjugal rights states that marriage cannot be on Contractual

basis. In Pravinaben v. S.T.Arya, the Court held that if the wife is working in a
place away from the house with the full consent of the husband, then the husband
cannot file a restitution suit.
27

lOMoARcPSD|19078271
In the present situation Mrs. Naina is working at a farther place because of his job
over there and she has a reasonable ground to live apart from him, she never
wanted to stay away from him. The Respondent did not show any objection
towards her job or being living far away from him, so he can't file a case for
restitution.
6. In Jagadish v. Shyam case, the husband filed restitution of conjugal rights. The
wife proved that the husband is impotent and so the court had rejected the
restitution suit on reasonable ground. In our case although the husband is not
impotent yet he is involved in extra marital affair which is even worse than
impotency. Thus divorce is the only solution left for the parties.
In Smt. Rita Prajapati V Sanjay Kumar AIR 2017 Jharkhand 41 In the present
case, since the respondent approached the court below seeking restitution of
conjugal rights in his favor on assertion that the appellant had withdrawn herself
from his society without any reasonable excuse, the onus of proof lied upon him.
Moreover, a wife cannot be compelled to stay with her husband or her in-laws
under adverse circumstances.
7. Law provides that when either husband or the wife withdraws from the society
of the other, the aggrieved party may apply to the Court for a direction that the
other party should live with him or her. But if on the other hand there are several
judgements by the honorable court which shows that wife shall not be compelled to
go with her husband.
8. So Naina can't be compelled to live with Arjun in such case, where her husband
is living with another woman who is not his wife. It is not possible for a woman to
love with a man who is in a live in relationship with another woman in front of
28

lOMoARcPSD|19078271
him. Not only Naina but any woman dignified woman would give divorce to such
kind of husband.
Thus it is requested that the decree for divorce shall be granted without restitution
of conjugal rights.
29

lOMoARcPSD|19078271
PRAYER FOR RELIEF
Wherefore, in light of the facts presented, issue raised and arguments advanced, the
learned counsel on behalf of Petitioner humbly request before the Hon'ble Supreme
Court of India that the court may adjudge and declare that:
1. Special Leave Petition under Art.136 is maintainable.
2. Naina may be entitled for divorce against Mr. Arjun and there is no ground for
restitution of conjugal rights.
3. Pooja is entitled for maintenance and medical expenses of pregnancy
And Pass any other Order, Direction, or Relief that the Hon’ble Supreme
Court may deem fit and proper in the facts and circumstances of the case.
30

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Petitioner Memorial - MOOT COURT FILE FOR

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MOOT COURT COMPETITION, 2020

BEFORE THE HON’BLE SUPREME COURT OF INDIA

SPECIAL LEAVE PETITION

UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA

ON SUBMISSION BEFORE THE HON’BLE CHIEF JUSTICE

COMPANION JUSTICE OF THE SUPREME COURT OF INDIA

MEMORIAL ON BEHALF OF THE PETITIONER

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ii. Index of authorities…………………………………………………………….5

iii. Statement of Jurisdiction……………………………………………………..8

iv. Statement of Facts……………………………………………………………9

vi. Summary of Arguments……………………………………………………12

vii. Arguments Advanced……………………………………………………..14

[1]. whether the appeal of both the petitioners is maintainable or not?

[2]. whether irretrievable breakdown of marriage is a valid ground for

[3]. Whether Pooja is entitled for Maintenance under DV Act or not?

[4]. Whether Naina is entitled for divorce or the Restitution of Conjugal

viii. Prayer for Relief…………………………………………………………30

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AIR: All India Reporters

Crpc: Code of Criminal Procedure

DMC: Domestic and Matrimonial Cases

DV: Domestic Violence

HC: High Court

IPC: Indian Penal Code

MP: Madhya Pradesh

Pwdva: Protection of Women from Domestic Violence Act, 2005

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SC: Supreme Court

SCC: Supreme Court Cases

SLP: Special Leave Petition

U.K.: United Kingdom

U.P.: Uttar Pradesh

W.P: Writ petition

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Art. 136 Constitution of India

1. Protection of women against Domestic Violence Act, 2005

2. Hindu Marriage Act, 1955

3. Criminal Procedure Code 1973

4. The Indian Penal Code [45 of 1860]

5. The Indian Evidence Act, 1872

1. The Divorce Act [Canada], 1968

2. [Australia] Family Law Act, 1975

3. Matrimonial Causes Act, 1973

1. Abhijit Bhikaseth Auti v.State of Maharashtra and Others

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4. .Dhannulal v. Ganeshram, (2015) 12 SCC 301.

14. Revanasiddappa v. Mallikarjun [ (2011) 11 SCC 1 : (2011) 2 UJ 1342]

19. S.P.S. Balasubramanyam v. Suruttayan [(1994) 1 SCC 460 : AIR 1994 SC