TEAM CODE: 06

MAHARAJA AGRASEN UNIVERSITY, H.P. INDIA

SCHOOL OF LAW

MOOT COURT

SESSION 2018-2023

BEFORE THE HON’BLE SUPREME COURT OF INDIA

ANUSHKA & RANI (PETITIONER)

V.

RAHUL (RESPONDENT)

ON SUBMISSION TO THE REGISTRY OF THE COURT

OF THE HON’BLE SUPREME COURT OF INDIA

MEMORIAL FOR THE APPELLANT- ANUSHKA & RANI

PREPARED AND SUBMITTED BY NEHA SHARMA (MAU18UBL027)

SUBMITTED TO: - Dr. RAJESH KUMAR

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 SUPREME COURT OF INDIA, NEW DELHI

Case No.-

ANUSHKA & RANI …………………………………………………..(PETITIONER)

V.

RAHUL ………………………………………………………………..(RESPONDENT)

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 TABLE OF CONTENTS

LIST OF ABBREVIATIONS………………………………………………………….. 04

INDEX OF AUTHORITIES…………………………………………………………… 06

Lexicons…………………………………………………………………………………. 06

Books……………………………………………………………………………………. 06

Case Laws………………………………………………………………………………. 07

Websites………………………………………………………………………………… 07

STATEMENT OF JURISDICTION …………………………………………………. 09

STATEMENT OF FACTS…………………………………………………………….. 10

ISSUES RAISED………………………………………………………………………. 11

SUMMARY OF ARGUMENTS …………………………………………………….. 12

 ARGUMENTS ADVANCED …………………………………………………………. 13

I. WHETHER THE DIVORCE PETITION FILED BY ANUSHKA BEFORE HON’BLE

SUPREME COURT IS JUSTIFIED OR NOT? ……….................................................. 13

[1] Adultery……………………………………….…………………………………. 13

[2] Irretrievable Breakdown of Marriage………………...………………………….. 14

II. WHETHER RANI’S APPEAL OF MAINTENANCE BEFORE HON’BLE SUPREME

COURT IS MAINTAINABLE OR NOT? ……………………………………………….. 16

PRAYER………………………………………………………………………………… 19

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 LIST OF ABBREVIATIONS

AIR All India Reporter

All Allahabad High Court

Cal Calcutta High Court

Cri LJ / Cr LJ Criminal Law Journal

CrPC. Code of Criminal Procedure

Del Delhi High Court

DVA/ DV Act Domestic Violence Act, 2005

DW Defence Witness

Ed. Edition

Guj Gujarat High Court

IPC Indian Penal Code

IC Indian Cases

Mad Madras High Court

n. Foot Note no.

Ori Orissa High Court

p. Page No.

P&H Punjab and Haryana High Court

Pat Patna High Court

PW Prosecution Witness

Raj Rajasthan High Court

SC Supreme Court

SCC Supreme Court Cases

SCJ Supreme Court Journal

SCR Supreme Court Reporter

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 Sec. Section

v. Versus

CJM Chief Judicial Magistrate

Ors. Others

Anr. Another

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 INDEX OF AUTHORITIES

LEXICONS

Wharton’s, Wharton’s Law Lexicon, (17th Ed. 2017)

BOOKS

NAME

BLACK’S LAW DICTIONARY Ninth edition by Garner

CONSTITUIONAL LAW OF INDIA Fifty first edition 2014 by Dr. J.N. Pandey

CONSTITUTION OF INDIA Twelfth edition 2013 by V.N. Sukla’s, Mehendra Pal

Singh

CONSTITUTIONAL LAW OF INDIA Thirteenth edition 2018 by Prof. G.S. Pande

FAMILY LAW Fourth edition 2015 by Prof. Kusum

HINDU LAW AND USAGE Sixteenth edition 2008 by Mayne’s

HINDU LAW First edition 2009 by Dr. S.R. Myneni

HINDU LAW First edition 2015 by Dr. Samiya Tabasum

HINDU LAW Fourth edition 2014 by Dr. Basant K. Sharma

HINDU LAW Ninth edition 2013 by U.P.D. Kesari

INDIAN CONSTITUTIONAL LAW Seventh edition 2014 by M.P. Jain

LAW OF MARRIAGE AND DIVORCE Sixth edition 2011 by Paras Diwan

MODERAN HINDU LAW Twenty second edition 2013 by Dr. Paras Diwan

MULLA HINDU LAW 21st Edition Reprint 2012 by Satyajeet A Desai

THE CONSTITUTION LAW OF INDIA First edition 2009 by Narender Kumar

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 THE CONSTITUTION OF INDIA Ninth Edition Reprint 2016 by Narender Kumar

CASE LAWS

NAME PAGE

Varadrajulu v. Baby Ammal; AIR 1965 Mad 29 13

Sanjukta Padhan vs Laxminarayan Padhan And Anr; AIR 1991 Ori 39. 13

Sumitran Rober v. Sophia; 2001 (3) LW 649. 14

Rachita Rout v. Basant Kumar Rout; 1987 Cr. L.J. 655 (Orissa). 14

Ms. Jorden Diengdeh v. S. S. Chopra; AIR 1985 SC 935. 14

Krishna vs. Som Nath; (1996) DMC 667 (P&H). 15

Naveen Kohli v. Neelu Kohli; AIR 2006 SC 1675. 15

Tulsa v. Durghatiya; [(2008) 4 SCC 520]. 16

Gokal Chand v. Parvin Kumari; AIR 1952 SC 231. 17

D.Velusamy v. D.Patchaiammal; (2010) 10 SCC 469. 18

Marvin v. Marvin. 18

K.K. Nath v. Kanchan Bala Nath; 1989 Cr. L.J. (NOC) 194 (Gau). 18

WEBSITES

http://www.findlaw.com

http://www.judis.nic.in

http://www.scconline.com

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 http://www.manupatra.co.in/AdvancedLegalSearch.aspx
www.thelawdictionary.org

www.casemine.com
www.indiankanoon.com

www.lawoctopus.com

http://www.millenniumpost.in/

https://www.lawnotes.in/

https://www.academia.edu/

http://www.the-laws.com/Encyclopedia/Browse/

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 STATEMENT OF JURISDICTION

The Petitioner humbly submits to Hon’ble Supreme court of India that the court is
empowered to hear this case by the virtue of Article-136 of the Constitution of India,
1950.

The Article reads as:

Special Leave to Appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in it’s
discretion, grant special leave to appeal from any judgment, decree, determination,
sentence or order in any cause or matter passed or made by any court or tribunal
in the territory of India.

(2) Nothing in clause (1) shall apply to any judgment, discretion, sentence or order
passed or made by any court or tribunal constituted by or under any law relating
to the Armed Forces.

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 STATEMENT OF FACTS

1) That, Mr. Virat and Ms. Anushka were batch mates and good friends who got married
in 2006. Virat being a religious person wanted a son to attain moksha.
2) That, During 5 years of marriage they had two babies, Pinki and Priya. Due to absence
of male child there were quarrels between them. This resulted into divorce between
them by mutual consent in 2012.
3) That, Anushka got transferred to Jaipur where she met Rahul who wanted to marry her.
As he was already married they waited for divorce and immediately after divorce they
got married in 2015.
4) That, soon after the marriage Anushka got busy with her work. Therefore, she
ultimately took decision not to have children within 5 years of marriage.
5) That, she was not taking proper care and giving love and affection to Rahul. Rahul tried
his level best to persuade the matter. But, he could not succeed. Anushka told Priya and
Pinki that Rahul is not their father.
6) That, on 23 December 2016, Anushka got transferred to Delhi. She took her daughters
to Delhi and Rahul continued in Jaipur. The behaviour of Anushka did not change. She
was also dominant on phone and in person whenever she was meeting Rahul.
7) That, as Rahul was alone in Jaipur and no one to take care of him, he hired a domestic
servant, Rani aged 17 years for daily persuades. As maid servant was asked to stay in
the house, it lead to development of live in relationship.
8) That, on 1st November 2017 when Anushka visited Jaipur she came to know about the
relationship as Rani was pregnant. Being aggrieved with misconduct and extramarital
affair Anushka served notice of divorce.
9) That, wife filed divorce petition on the ground of irretrievable breakdown of marriage
along with adultery. The petition got dismissed in Family Court as well as in High
Court. Then wife filed Special Leave Petition in Supreme Court on the same grounds.
10) That, Rani who was in living relationship with Rahul, filed separate suit for
maintenance under Domestic Violence Act, 2005 against Rahul. Her petition was
rejected by Family Court, as well as by Rajasthan High Court, Jaipur. Against order of
High Court Rani filed Special Leave Petition in Supreme Court.
11) Hence both Petitions are before Supreme Court. Supreme Court in its discretion clubbed
both matters and called for final hearing.

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 STATEMENT OF ISSUES

ISSUE I: Whether the divorce petition filed by Anushka before the Hon’ble Supreme
Court is justified or not?

ISSUE II: Whether Rani’s appeal of maintenance before the Hon’ble Supreme Court is
maintainable or not?

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 SUMMARY OF ARGUMENTS

I. WHETHER THE DIVORCE PETITION FILED BY ANUSHKA BEFORE THE

HON’BLE SUPREME COURT IS JUSTIFIED OR NOT?

The divorce petition filed by the petitioner is justified as the facts clearly state
that Rani was in a live-in relationship with Rahul and that she became pregnant while
she was engaged in live-in relationship with Respondent which clearly states that
respondent has committed an act of adultery.

And adultery in matrimonial law is one of the principle grounds for divorce.

II. WHETHER RANI’S APPEAL OF MAINTENANCE BEFORE THE HON’BLE

SUPREME COURT IS MAINTAINABLE OR NOT?
Rani’s appeal of maintenance is maintainable as she has been subject to
economic abuse as she had been deprived of all economic and financial resources to
which she was entitled to after she entered into live-in-relationship with the respondent.
The facts clearly state that Rani had been deprived of her sources which is why she and
her unborn child is entitled to maintenance for neglect on part of respondent.

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 ADVANCED ARGUMENTS

I. WHETHER THE DIVORCE PETITION FILED BY ANUSHKA BEFORE

HON’BLE SUPREME COURT IS JUSTIFIED OR NOT?

The counsels on behalf of petitioner humbly submit that, divorce petition filed by
Anushka is justified on the two grounds being:

(i) Adultery

(ii) Irretrievable breakdown of marriage

[1] ADULTERY

According to HINDU MARRIAGE ACT, 1955

SECTION-13(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-

(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with
any person other than his or her spouse”

Adultery in matrimonial law is one of the principle grounds for relief and has been
defined as consensual sexual intercourse between a married person and another
person of opposite sex during the subsistence of the marriage.

The accepted rule is that Court can rely on circumstantial evidences to prove adultery.

Madras High Court in Varadrajulu v. Baby Ammal1 held that, “In divorce cases courts
can even act upon uncorroborated testimony and grant relief to the parties taking the
surrounding circumstances into account.”

Also, it is well settled that direct proof of adultery is not imperative and Courts,
therefore, have stated that it would be unreasonable to expect direct evidence and such
evidence if brought before the Court must be suspect and is apt to be disbelieved.2

1
AIR 1965 Mad. 29
2
Sanjukta Padhan vs Laxminarayan Padhan And Anr.; AIR 1991 Ori 39
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 Aligning our statement with the case of Sumitran Rober v. Sophia3 the court held that
the standard of proof required in a criminal case cannot be applied for the proceedings in
matrimonial cases and the petitioner who alleged adultery is only required to prove the
allegations by preponderance of probability. It cannot be disputed that the allegations as
to the adultery have to be proved by preponderance of probability.

The surrounding circumstances that Rani was in a live-in relationship with Rahul and
that she became pregnant while she was engaged in live-in-relationship with Respondent
clearly states that respondent has committed an act of adultery.

In India marriage is considered as a sacred sacrament and it was assumed that this
union is made in heaven. Adultery is breach of matrimonial tie. It is not necessary that a
wife must be living in the house of adultery. Living in adultery denotes a continuous course
of conduct and not an isolated act of immortality.4

Many people believe that adultery is always morally wrong and that this is not because
it requires promise breaking or deceit rather they believe that adultery is morally wrong
because it poses a threat to the family member’s well being. And in our case, well being
of two daughters of Anushka is in question here.

[2] IRRETRIEVABLE BREAKDOWN OF MARRIAGE

After divorce with Virat, plaintiff was not of a stable mind-set to judge another
person’s nature as she was mentally aggrieved. In addition, respondent’s little gesture of
concern towards Anushka convinced her to marry respondent.

4 years of quality time spent with respondent is sufficient to judge character of a

person and in the mean time she became very well aware of respondent’s character due to
which her behavior towards him changed.

3
2001 (3) LW 649
4
Rachita Rout v. Basant Kumar Rout; 1987 Cr. L.J. 655 (Orissa)
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 Inter-State cadre transfer of Ms Harshika Singh IAS JH 12 from Jharkhand cadre to
MP cadre on grounds of her marriage5clearly imply that petitioner had an option to opt for
transfer whereas she opted not reside in her matrimonial home as she was very well aware
of respondent’s nature.

Further the implied fact that IPS officers are availed with all the benefits to carry on
their daily persuades give rise to the question that why did respondent opt to hire a full time
female servant in the name of daily persuades?

The surrounding circumstances clearly indicate that respondent had kept Rani to fulfill his
sexual desires.

The foundation of a sound marriage is respecting one another.

Earlier, in Ms. Jorden Diengdeh v. S. S. Chopra6 the Supreme Court observed:

“It appears to be necessary to introduce irretrievable breakdown of marriage and mutual

consent as grounds of divorce in all cases.…We suggest that the time has come for the
intervention of the legislature in those matters to provide for a uniform code of marriage
and divorce and to provide by law for a way out of the unhappy situation in which couples
like the present have found themselves.”7

There is no use of keeping two persons tied by the matrimonial relationship when
they cannot live peacefully. Where wedlock has become a deadlock, since parties are living
separately, and after marriage, the respondent has entered into live-in relationship thereby
causing misconduct against the petitioner.

5
37/43/2014-EO(SM-I); Dated:- 25/08/2014
6
AIR 1985 SC 935.
7
Extract from:- Law Commission of India Report No.-217; MARCH 2009
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 Similarly, the Punjab And Haryana High Court in Krishna vs. Som Nath8 held
that, marriage is irretrievably broken and it is in the interest of justice that decree of divorce
be granted so that both the parties can live in peace.

In most of the cases, the question confronted by the Hon’ble Supreme Court is should
divorce be granted solely on the basis of who is ‘at fault’? Or should ‘irretrievable breakdown’
of a marriage be cause for divorce?

The Hindu Marriage Act governing marriages between Hindus, and the Special
Marriage Act governing marriage between individuals regardless of religious persuasion, are
premised on the ‘fault’ or ‘matrimonial offence’ theory for the purpose of divorce. This, in
effect, means that a person can be granted a divorce if, for example, it is established that the
spouse has committed adultery. In addition, the wife can ask for a divorce on grounds that
after marriage her husband was guilty of adultery, rape, sodomy or bestiality.

In the recent case of Naveen Kohli v. Neelu Kohli9 , the Supreme Court held that
situations causing misery should not be allowed to continue indefinitely, and that the
dissolution of a marriage that could not be salvaged was in the interests of all concerned. The
court concluded that the husband was being mentally, physically and financially harassed by
his wife. It held that both husband and wife had allegations of character assassination against
them but had failed to prove these allegations. The court observed that although efforts had
been made towards an amicable settlement there was no cordiality left between the parties and,
therefore, no possibility of reconnecting the chain of marital life between the parties.

II. WHETHER RANI’S APPEAL OF MAINTENANCE BEFORE THE HON’BLE

SUPREME COURT IS MAINTAINABLE OR NOT?

8
(1996) DMC 667 (P&H).
9
AIR 2006 SC 1675
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 The counsel most humbly submits that, following are the grounds on the basis of
which Rani’s appeal is maintainable.

The legal status of live-in relationships in India has been evolved and determined
by the Supreme Court in its various judgments. However, there is no separate legislation
which lays down the provisions of live in relationships and provides legality to this
concept. Though the concept of live-in relationship is considered immoral by the society,
but is definitely not illegal in the eyes of the law.

The Supreme Court states that living together is a right to life and therefore it
cannot be held illegal. The court has also tried to improve the conditions of the women and
children borne out of live in relationships by defining their status under the Domestic
Violence Act, 2005.

A woman during pregnancy needs extra care and attention and a good diet. She
should be free from stress. For the proper care of the unborn child, both parents should
ensure a stress free environment and all requirements towards the unborn child should
be taken care by both of them. Hence, father cannot deny his obligation towards his
own child.

As far as legitimacy of child is in question:

The Supreme Court provided legal status to the children born from live in
relationship. It was held that one of the crucial pre-conditions for a child born from
live-in relationship to not be treated as illegitimate are that the parents must have lived
under one roof and co-habited together in the society and it must not be a "walk in and
walk out" relationship. Therefore, the court also granted the right to property to a child
born out of a live in relationship.10

Now, the appeal filed by Rani has its validity vested under Section 20(1) (d) of The
Protection of Women from Domestic Violence Act, 2005 which provides maintenance for the
aggrieved person as well as her children, if any, including an order under or in addition to an

10
Tulsa v. Durghatiya [(2008) 4 SCC 520]
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order of maintenance under Section 125 of the Code of Criminal Procedure, 1973 (2 of 1974)
or any other law for the time being in force.

Now to prove the applicability of the above stated Section we will have to
understand the term “aggrieved person”.

According to Section 2(a) of Domestic Violence Act, 2005;

(a) "aggrieved person" means any woman who is, or has been, in a domestic
relationship with the respondent and who alleges to have been subjected to any act
of domestic violence by the respondent;

(g) "Domestic violence" has the same meaning as assigned to it in section 3.

Aligning the previously said section with Section 3 of Domestic Violence Act;

Definition of domestic violence- For the purposes of this Act, any act, omission
or commission or conduct of the respondent shall constitute domestic violence in case
it –

(a) harms or injures or endangers the health, safety, life, limb or well-being,
whether mental or physical, of the aggrieved person or tends to do so and includes
causing physical abuse, sexual abuse, verbal and emotional abuse and economic
abuse.

It must be noted that in Gokal Chand v. Parvin Kumari11 the Hon’ble Supreme Court
held that, “Continuous cohabitation of man and woman as husband and wife may raise the
presumption of marriage, but the presumption which may be drawn from long cohabitation is
a irrebuttable one and if there are circumstances which weaken and destroy that presumption,
the Court cannot ignore them.”

11
AIR 1952 SC 231.
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 Here, the court relied on the concept of ‘Palimony’ which was used in the grant of
maintenance in live in relationships. The concept of palimony was derived in the case of
Marvin v. Marvin, a landmark judgment of the California Superior Court.

In addition to that, Rani is entitled to claim maintenance for her unborn child under
Section-125 of Code of Criminal Procedure, 1973 which states

Order for maintenance of wives, children and parents-(1) If any person having
sufficient means neglects or refuses to maintain-

(b) His legitimate or illegitimate minor child, whether married or not, unable to
maintain itself

It was held in K.K. Nath v. Kanchan Bala Nath12, that though the mother is not the wife
of the father, the child of such father, who is in custody of his mother, is entitled to maintenance.

Though the word ‘Child’ has not been defined in the Code, it means a person who has
not reached full age i.e., 18 years as prescribed by the Indian Majority Act, 1875.

Here, in our case Rani has been subject to economic abuse as she had been deprived of
all economic and financial resources to which she was entitled after she entered into live-in-
relationship with the respondent. Now that the facts clearly states that Rani, by the acts of
respondent had been deprived of her sources, she is entitled to maintenance for neglect on part
of respondent.

It becomes a duty of respondent to maintain Rani and her unborn child.

12
1989 Cr. L.J. (NOC) 194 (Gau)
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 PRAYER

In light of the issues raised, arguments advanced and authorities cited, the counsel for
Petitioner humbly prays that the Hon’ble Court be pleased to adjudge, hold and declare:

1) The divorce petition filed by Anushka before Hon’ble Supreme Court is justified.
2) Rani’s appeal of maintenance before the Supreme Court of India is maintainable.

And pass any order that this Hon’ble court may deem fit in the interest of equity, justice and
good conscience.

All of which is most humbly and respectfully submitted.

Sd/- (Counsel for Petitioner)

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 AFFIDAVIT

1. Neha Sharma D/o Mr. Mahinder Kumar Sharma, aged 22 years , do hereby
solemnly affirmed state as follow:

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 POWER OF ATTORNEY

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