RTMNU’S Dr.

Babasaheb Ambedkar College Of Law, Nagpur

RTMNU’S
Dr. Babasaheb Ambedkar College Of Law, Nagpur

BEFORE

THE HON’BLE HIGH COURT OF BOMBAY

THE APPEAL FILED U/S 100 OF

THE CODE OF CIVIL PROCEDURE, 1908

Civil Appeal No. ___________

APPELLANT : Mrs. SunitaRajendraNikalje

Age: 29 Occu.: House wife

V.

RESPONDENT : RajendraEknathNikalje
Age: 30 Occu. : Canteen Worker

Memorial on behalf of the Respondent

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 RTMNU’S Dr. Babasaheb Ambedkar College Of Law, Nagpur

RTMNU’S
DR. BABASAHEB AMBEDKAR COLLEGE OF LAW,
NAGPUR

Name:- Pravesh .B. Sahare

Class:- LLB 3yrs VI semester Section:- B

Roll No.:- 37

Subject:- Moot Court and Internship

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TABLE OF CONTENT

Sr. No. Particulars Page No.

1 LIST OF ABBREVIATIONS 1

2 INDEX OF AUTHORITIES 1

3 STATEMENT OF JURISDICTION 2

4 STATEMENT OF FACT 5

5 STATEMENT OF ISSUES 6

6 SUMMARY OF ARGUMENTS 7

7 ARGUMENTS ADVANCED 8

8 PRAYER 13

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LIST OF ABBREVIATIONS

Abbreviations Full Form

u/s Under Section
r/w Read with
Hon’ble Honorable
AIR All India Reporter
SCC Supreme Court Cases
CPC Civil Procedure Code
CrPC Criminal Procedure Code
HMA Hindu Marriage Act
V. Versus
s. Section

INDEX OF AUTHORITIES

CASES REFERRED

1. Ram Kali V. Gopal Das ILR 1971 (1) Delhi 6

2. Smt. Bimla Devi V. Singh Raj AIR 1977 PH 167

3. RamratanChakraborti V. SonaliChakrabortiAIR 2013 Cal

BOOKS REFERRED

1. The Code Of Criminal Procedure, 1973.

2. The Indian Evidence Act, 1872

3. The Code Of Civil Procedure, 1908

4. The Hindu Marriage Act,1955

STATEMENT OF JURISDICTION

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The Court derives its jurisdiction under s.100 of The Code of Civil Procedure
and s.127of the Code of CriminalProcedure, 1973, which reads as:-

100. Second appeal.

(1) Save as otherwise expressly provided in the body of this Code or by any
other law for the time being in force, an appeal shall lie to the High Court
from every decree passed in appeal by any Court subordinate to the High
Court, if the High Court is satisfied that the case involves a substantial
question of law.

(2) An appeal may lie under this section from an appellate decree passed ex
parte.

(3) In an appeal under this section, the memorandum of appeal shall precisely
state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is
involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent
shall, at the hearing of the appeal, be allowed to argue that the case does not
involve such question:

Provided that nothing in this sub-section shall be deemed to take away or

abridge the power of the Court to hear, for reasons to be recorded, the appeal
on any other substantial question of law, not formulated by it, if it is satisfied
that the case involves such question.

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127. Alteration in allowance.

(1) On proof of a change in the circumstances of any person, receiving, under section
125 a monthly allowance for the maintenance or interim maintenance, or ordered
under the same section to pay a monthly allowance for the maintenance, or interim
maintenance, to his wife, child, father or mother, as the case may be, the Magistrate
may make such alteration, as he thinks fit, in the allowance for the maintenance or the
interim maintenance, as the case may be.

(2) Where it appears to the Magistrate that, in consequence of any decision of a

competent Civil Court, any order made under section 125 should be cancelled or
varied, he shall cancel the order or, as the case may be, vary the same accordingly.

(3) Where any order has been made under section 125 in favour of a woman who has
been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if
he is satisfied that

(a) the woman has, after the date of such divorce, remarried, cancel such order as
from the date of her remarriage

(b) the woman has been divorced by her husband and that she has received,
whether before or after the date of the said order, the whole of the sum which,
under any customary or personal law applicable to the parties, was payable on
such divorce, cancel such order

(i) in the case where such sum was paid before such order, from the date on
which such order was made

(ii) in any other case, from the date of expiry of the period, if any, for which
maintenance has been actually paid by the husband to the woman

(c) the woman has obtained a divorce from her husband and that she had
voluntarily surrendered her rights to 2[maintenance or interim maintenance, as the
case may be,] after her divorce, cancel the order from the date thereof.

(4) At the time of making any decree for the recovery of any maintenance or dowry
by any person, to whom a 3[monthly allowance for the maintenance and interim
maintenance or any of them has been ordered] to be paid under section 125, the Civil

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Court shall take into account the sum which has been paid to, or recovered by, such
person 4[as monthly allowance for the maintenance and interim maintenance or any
of them, as the case may be, in pursuance of] the said order.

Maharashtra Amendment

Amendment of section 127 of Act (2 of 1974).--In section 127 of the said Code,

(a) In sub-section (1), in the proviso, for the words "five hundred rupees" the words
"fifteen hundred rupees" shall be substitute;

(b) In sub-section (4),-

(i) For the words "monthly allowance", where they occur for the first time, the
words "maintenance allowance" shall be substituted;

(ii) after the words "monthly allowance", where they occur for the second
time, the words "or, as the case may be, the lump-sum allowance" shall be
inserted.

[Vide Maharashtra Act 21 of 1999, s. 3]

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 RTMNU’S Dr. Babasaheb Ambedkar College Of Law, Nagpur

STATEMENT OF FACTS
The Respondent most humbly and respectively submits as under that:-

1. That,the marriage between appellant wife and respondent husband was solemnized on

71/01/1988 according to Buddhist rights.

2. The couple was blessed with a daughter by name Sampada.

3. After the birth of the daughter the couple cohabited for sometime but got separated

and the respondent file suit for the restitution of conjugal rights u/s 9 of Hindu

Marriage Act,1955 (PE/969/89).

4. And the appellant filed petition for maintenance of herself and the daughter u/s 125

Code of Criminal Procedure (PE/1964/89).

5. Both the petitions came to be heard together.

6. The decree of restitution of conjugal rights was passed on 20/01/1991 in the favour of

the husband i.e. current respondent

7. After the passing of the decree for restitution of conjugal rights more than one year

had passed and there was no resumption of cohabitation between the couple because

the appellant-Wife wanted a separate residence from her mother-in-law and the

respondent-husband is in no position to accept this term of separate residence.

8. Therefore the current respondent was forced to file petition claiming divorce u/s

13(1a)(ii) of Hindu Marriage Act,1955 (PA/116/92).

9. After considering all the factors very minutely the learned judge of the trial court had

passed the decree for the dissolution of marriage and also directed the respondent to

pay maintenance at rate of Rs.300 per month to the appellant and Rs.100 per month

for the daughter.

10. In this appeal the appellant filed civil application praying that maintenance should be

granted at the rate of Rs.1000 per month for current appellant.

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STATEMENT OF ISSUES

ISSUES RAISED BEFORE THE HON’BLE COURT

1. WHETHER THE DECREE OF RESTITUTION OF CONJUGAL RIGHTS WAS

COMPLIED WITH?

2. WHETHER THE RESPONDENT IS TRYING TO TAKE ADVANTAGE OF HIS

OWN WRONG?

3. WHETHER THE FACTS PROVED ATTRACT THE PROVISIONS OF SECTION

23(1)(A)?

4. WHETHER THE AMOUNT OF MAINTENANCE GRANTED BY THE TRIAL

COURT SHOULD BE INCREASED?

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SUMMARY OF ARGUMENTS

Issue 1: Regarding issue 1 the counsel on behalf of the respondent would like to contend that,

there was no resumption and cohabitation of marriage between the couple for more

than one year after the passing of the decree of restitution of conjugal rights. The

current appellant did not try to cohabit and refused to return to the respondents house.

And hence the appellant had not complied with the decree u/s 9 of HMA 1955

Issue 2: Regarding issue 2 the counsel on behalf of the respondent would like to contend that,

no the respondent never ever tried to take the advantage of his own wrong because

there was nothing wrong done on the part of the respondent. Respondent was ready to

comply the decree of restitution of conjugal rights

Issue 3: Regarding issue 3 the counsel on behalf of the respondent would like to contend that,

yes the facts proved attracts the provisions u/s 23(1)(a) of HMA, 1955

Issue 4: Regarding issue 4 the counsel on behalf of the respondent would like to contend that,

no the amount of maintainance should not be increased as per the wishes of appellant

because it will be unreasonable on the part of the respondent to give more than 50%

of his gross salary as maintainance and also it will contradict the provisions u/s 60(1)

(ia) of CPC

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ARGUMENTS ADVANCED
The Respondent most humbly begs to submit as under:-
ISSUE 1: WHETHER THE DECREE OF RESTITUTION OF CONJUGAL RIGHTS
WAS COMPLIED WITH?
There was no resumption and cohabitation of marriage between the couple for
more than one year after the passing of the decree of restitution of conjugal rights.
The current appellant did not try to cohabit and refused to return to the respondents
house. And hence the appellant had not complied with the decree of restitution of
conjugal rights u/s 9 of HMA, 1955
The respondent in his evidence has deposed about sending registered letters
atat Exhs. 21, 22, 25 and 27 andproved the refusal thereof by producing postal
acknowledgments. The respondent had tried to seethat appellant resumed
cohabitation. But the appellant neither replied nor resumed cohabitation.
The appellant had declined the registered letters this shows that she was not
ready to come back

ISSUE 2: WHETHER THE RESPONDENT IS TRYING TO TAKE THE ADVANTAGE

OF HIS OWN WRONG?
No the respondent never ever tried to take the advantage of his own wrong
because there was nothing wrong done on the part of the respondent. Respondent was
ready to comply the decree of restitution of conjugal rights.
First we have to understand what is meant by taking advantage of his own
wrong .for that I want to refer a case law:
In the Case of Ram Kali V.GopalDass ILR (1971) 1 Delhi 6 (FB) the wife
obtained the decree of restitution of conjugal rights on 17-3-1961.
There was no resumption of cohabitation for 2 years (as it was required at that time)
after the said decree. The husband filed petition for divorce under S. 13(1A)(ii) of
Hindu Marriage Act for a decree of divorce. It was sought on the ground that there
was no restitution of conjugal rights during the statutory period. The wife contested
alleging that there was cohabitation duringNovember/December 1962, i.e. within 2
years. This was not accepted by the trial Court as well as by the learned single Judge
and decree of divorce was granted, holding that there was complete break down of
marriage. The contention raised before the Full Bench was in view of S. 23(1)(a) –

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husband cannot take advantage of his own wrong by failing to comply with the decree
for restitution of conjugal rights awarded against him.
This was negatived by observing:
"The underlying object of the legislature in inserting sub-sec. (1A) in S. 13 seems to
be that if there has been no resumption of cohabitation or no restitution of conjugal
rights as between the parties to the marriage for a period of two years or upwards,
after the passing of a decree for judicial separation or for restitution of conjugal rights,
the Court should assume that the relations between the parties have reached a stage
where there is no possibility of reconciliation and as such it might grant the decree of
divorce. The aforesaid object is in consonance with the modern trend not to insist on
the maintenance of union which has utterly broken down. It would not be a practical
and realistic approach, indeed it would be unreasonable and inhuman, 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."
Thus it is clear that there was no circumstance alleged against husband in this
case disentitling him to the decree of divorce.

ISSUE 3: WHETHER THE FACTS PROVED ATTRACTS THE PROVISIONS OF

SECTION 23(1)(a)?

Yes, the facts proved attracts the provisions u/s 23(1) (a) of HMA, 1955.
Respondent was ready to comply the decree of restitution of conjugal rights. The
appellant had declined the registered letters at Exhs. 21, 22, 25 and 27 this shows that
she was not ready to come back. One of the conditions required to be satisfied by the
Court before granting relief to a party is contained inSection 23(1)(a), which reads as
follows:--
23. (1) In any proceedings under this Act, whether defended or not if the court
is satisfied that-
(a) Any of the grounds for granting relief exists and the petitioner is
not in any way taking advantage
Of his or her own wrong or disability for the purpose of such relief;
(b) To (d).....

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(e) There is no other legal ground why relief should not be granted,
then, and in such a case, but not otherwise, the court shall decree such relief
accordingly.
Section 13(1A)(ii) deals with granting relief of dissolution of marriage when
there is no restitution ofconjugal rights for more than one year after passing the decree
of restitution, which reads asunder:--
13(1A) Either party to a marriage, whether solemnized before or after the
commencement of this Act,may also present a petition for the dissolution of the
marriage by a decree of divorce on the ground-
(i).....
(ii) that there has been no restitution of conjugal rights as between the parties
to the marriage for aperiod of one year or upwards after the passing of a decree for
restitution of conjugal rights in aproceeding to which they were parties.

In the case of Smt. Bimla Devi V. Singh Raj AIR 1977 PH 167 the Husband
got thedecree of restitution of conjugal rights against the wife. The wife did not
comply and filed the petition u/s 13(1A)(ii) for divorce. The question arose whether
she has committed any 'wrong' to disentitle her to such a decree in view of S. 23(1)(a).
It was held that merely because the spouse who suffers the decree refuses to resume
cohabitation would not be a ground to invoke provisions of S. 23(1)(a) and it cannot
be said that the said spouse is taking advantage of his/her own wrong.
It was also observed that "We are, therefore, inclined to hold that in a case
covered under S. 13(1A)(ii) of the Act, either of the parties can apply for dissolution
of marriage by a decree of divorce if it is able to show that there has been no
restitution of conjugal rights as between the parties to the marriage for a period of one
year or upwards after the passing of a decree for restitution of conjugal rights in
proceedings in which they were parties. The plea that the party against whom such
decree was passed failed to comply with the decree or that the party in whose favour
the decree was passed took definite steps to comply with the decree and the defaulting
party did not comply with the decree and, therefore, such an act be taken to be taking
advantage of his or her own wrong would not be available to the party, who is
opposing the grant of divorce under Cl. (ii) of sub-sec. (1A) of S. 13 of the Act.
ISSUE 4: WHETHER THE AMOUNT OF MAINTENANCE GRANTED BY THE
TRIAL COURT SHOULD INCREASE?

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No, the amount of maintainance should not be increased as per the wishes of
appellant because it will be unreasonable on the part of the respondent to give more
than 50% of his gross salary as maintainance and also it will contradict the provisions
u/s 60(1)(ia) of CPC

We shall first set out the background of the parties. The Respondent husband
is working in a canteen run by Rustom Engineering Company. He is agedabout 30
years and was getting about Rs. 2250/- per month as salary. The Appellant is a house
wife.Both are semi illiterate and come from ordinary families. Both the families are
staying at Pune.Their houses are situated at 5 minutes walking distance, from each
other.

The amount requested by the appellant for the raise in the maintainance i.e. at
the rate of Rs.1000 per month constitutes more than 50% of the respondent’s gross
salary. Also the respondent has other responsibilities and liabilities to fulfil.

The respondent has to pay Rs. 250 towards the maintainance of the daughter
and also has to take care of his mother

Now we have to see what s.60 (1) (ia) of CPC Says:

Section 60.Property liable to attachment and sale in execution of decree.

(1) The following property is liable to attachment and sale in execution of a

decree, namely, lands, houses or other buildings, goods, money, bank-notes,
cheques, bills of exchange, hundis, promissory notes, Government securities,
bonds or other securities for money, debts, shares in a corporation and, save as
hereinafter mentioned, all other saleable property, movable or immovable,
belonging to the judgment-debtor, or over which, or the profits of which, he
has a disposing power which he may exercise for his own benefit, whether the
same be held in the name of the judgment-debtor or by another person in trust
for him or on his behalf:

Provided that the following particulars shall not be liable to such attachment or
sale, namely:

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(a) To (i)……

(ia) one-third of the salary in execution of any decree for maintenance.

In case of RamratanChakraborti V. SonaliChakraborti AIR 2013 Cal

theHon’ble Calcutta High Court observed:

“In the view of the provisions u/s 60 (1) (ia) of the CPC, the
attachment of the gross salary of arrears amount of the maintainance
of the opposite party-wife must be limited to 1/3 of the gross salary.”

Hence, the Hon’ble court should take into consideration all these facts and
provisions before passing the order.

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PRAYER

In the light if the facts stated, issues raised, arguments advanced and authorities

cited, the Counsel on behalf of Respondent most humbly and respectfully prays before

this Hon’ble Court, to be graciously pleased:

1. That, the decree passed by the trial court should be upheld.

2. That, the amount of maintenance at the rate as stated by the appellant wife

should not be granted.

3. Any other relief be granted which this Hon’ble Court deems fit according to

present circumstances and in the interest of justice, equity and good

conscience.

Adv. KM SRISHTHI

KUMARI

(Counsel for Respondent)

Place: Nagpur ___________________________

Date: / /2023 Respondent

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