IN THE HIGH COURT OF MADHYA PRADESH

Monika (Appellant)

Versus

Amit & Anr. (Respondents)

MEMORIAL ON BEHALF OF THE APPELLANT

May it please your Lordships,

The Appellant humbly submits the present appeal against the impugned Judgment dated _________
passed in Petition No.______ by the learned Family Court, Ratlam.
Whether dismissal of Appellant's petition for daughter's custody under Hindu Minority and
Guardianship Act, 1956 is justified?

Whether declinature to grant divorce to Appellant under Hindu Marriage Act, 1955 despite cruelty
and desertion allegations is erroneous?

Whether Appellant is entitled remedies under The Protection of Women from Domestic Violence
Act, 2005 against domestic abuse by Respondents?

Whether impugned judgment suffers infirmities warranting interference in appeal?

The above issues are addressed hereinbelow:

1. Whether dismissal of Appellant's petition for daughter's custody under

Hindu Minority and Guardianship Act, 1956 is justified?
It is humbly submitted that the learned Family Court has fallen into a grave error of jurisprudence
and statutory interpretation in dismissing the Appellant's petition for custody under Hindu Minority
and Guardianship Act, 1956 (HMGA) which is the special legislation governing rights of guardians and
wards for Hindu community. The impugned findings are against the established legal precedents on:

(A) Determination of child custody applying doctrine of Welfare and Best Interests as paramount
considerations;

(B) Recognition of the preferential rights of the mother for guardianship and custody disputes in case
of minor girl children under the 'Tender Years' principle;

(C) Disentitlement of party guilty of reprehensible conduct relating to children like child abduction;
and

(D) Overriding importance accorded for mother-daughter bonding during developmental years.

The legal propositions on each of the above facets supported by relevant case laws are elaborated
hereinbelow:

(A) Determination of Child Custody on touchstone of Welfare and Best Interests

The Hon'ble Supreme Court, as far back as in 1964 in the case of Rosy Jacob v. Jacob Chakramakkal,
AIR 1973 SC 2090 emphatically laid down that custody disputes cannot be decided on rights of
parents or guardians under personal laws but must be primarily guided by over-arching welfare
considerations subject to facts of each case to determine child's best interests.

This foundational principle has since gained universal recognition and adoption by courts to become
the law of the land for resolving all guardianship and custody conflicts irrespective of community or
religion. Recently, in the case of Yogesh Sharma v. Nisha Tyagi 2022 SCC OnLine Del 2066 at para 15,
the Delhi High Court also reiterated that:

"The paramount consideration is always what is in the 'best interest of child' and what will best serve
child’s welfare and happiness should be the guiding factor."
Likewise, concerning NRI / trans-national custody cases, the Supreme Court in Surya Vadanan v. State
of Tamil Nadu (2015) 5 SCC 450 stressed that:

"in case of conflict between territorial jurisdiction of foreign court and Indian court’s jurisdiction, the
former should prevail keeping in view the fact that parent having custody rights was in a position to
take better care” upholding paramountcy of welfare.

In effect, the legal framework obligated the Family Court to undertake a fact-centric independent
analysis whether uprooting 4 year old Bhavya from present environment in India to handover to
Appellant mother facing marital turbulence shall promote her overall well-being and guarantees
better care. But no such meaningful welfare evaluation finds mention in the impugned order.

(B) Special Preference to Mothers in custody of Girl Children

It is excruciatingly submitted that Family Court's judgment ignores judicially recognized child custody
preference policies for tender aged female child being raised by single mothers. Apart from 'tender
years doctrine', gender of the minor has been held an important consideration in awarding custody
between competing parents.

In Anjali Kapoor v. Rajiv Baijal, (2009) 7 SCC 322, the Supreme Court awarded custody of 10 year girl
child to estranged mother despite acquittal in criminal case against father as it was observed:

"For young girl child - mother is best custodian" adding it would be "cruel to separate" her.

Likewise, recently in Preeti Bhargava v. Surender Singh Naruka, 2022 SCC OnLine Raj 729 also
involving removed of NRI mother's infant daughters, their custody was directed to be restored
keeping in view principle that mother's care is irreplaceable during childhood over other relations.

Therefore, handover of custody to paternal grand-mother instead of re-uniting Bhavya with natural
mother in present case militates against these established preferential gender norms which ought to
have been taken into account by learned Lower Court.

(C) Disentitlement to custody for reprehensible conduct against child

The Appellants humbly submits that Family Court's decision militates against yet another cardinal
principle laid down by Hon'ble Courts that any party approaching to claim child custody but found
guilty of acting against child's interests or committing wrongful acts forfeits any preferential rights
and entitlements otherwise available under personal law.

In the case of Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42 also which raised issue of NRI
mother wrongfully removing children from USA against divorce decree, their custody was ordered to
father since alienation of minor wards without consent constitutes an act of reprehensible conduct
disentitling other privileges.

Likewise, in Surya Vadanan (supra), the Supreme Court denied custody to aggressively litigating
mother by observing - "Her conduct even during the pendency of proceedings speaks volumes of her
lack of concern for her daughter and her resentment for husband and in-laws, the outcome of which
is likely to disturb Akshaya’s mind."

Thus, the removal of Bhavya as a toddler from USA behind Appellant's back and willful separation for
years is undisputedly an act hostility and reprehensible conduct by Respondents which extinguishes
any legal rights under HMGA or precedents qua custody claims. But learned Lower Court completely
glossed over such vital aspects.

(D) Legal Significance of Mother-Child Bonding

As recognized in catena of precedents, the psychological and intellectual development of children

hinges greatly upon maternal bonding and attachment nurtured from conception and birth. Even
temporary disruptions or separation between mother-child union may hamper growth.

In Suman Rani v. Amardeep, (1993) 2 Andhra LT 512 and Kirtikumar V. Saubhag Singh, (1986) 3 SCC
698, it was unambiguously held that "for their harmonious growth and development, the bonds of
affection" between mother and children ought not to be disturbed or disrupted. Children must
receive warmth of mother's love.

Likewise, in foreign jurisdictions also, the tender maternal ties between mother and children have
been repeatedly upheld by courts as the vital, indispensable fulcrum for their holistic well-being and
personality building during evolution years.

Therefore, against such significant backdrop and evidence that Bhavya was thriving under individual
care and supervision of the Appellant since birth in USA for 3 years, the impugned judgment
directing continued separation against competence mother by denying custody is destructive of their
mutual bonding without any lawful basis. The welfare of the minor child warrants immediate
restoration with her natural guardian mother in present case in backdrop of findings recorded above
read with statutory intendment under HMGA provisions.

2. Whether declinature to grant divorce to Appellant under Hindu

Marriage Act, 1955 despite cruelty and desertion allegations is
erroneous?
At the outset, the Appellant submits that the key provisions invoked seeking dissolution of marriage
is Section 13(1)(i) of Hindu Marriage Act, 1955 (HMA) on grounds of cruelty and desertion which
provides as under:

"13. Divorce —(1) Any marriage solemnised, whether before or after the commencement of the 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 solemnisation of the marriage, had voluntary sexual intercourse with any person
other than his or her spouse; or (i-a) has, after the solemnisation of the marriage, treated the
petitioner with cruelty; or (i-b) has deserted the petitioner for a continuous period of not less than
two years immediately preceding the presentation of the petition;"

I. General Principles for granting divorce on ground of 'Cruelty'

At the outset it is highlighted that the term 'cruelty' has not been defined in HMA. Over the years, it
has attained wider connotation through judicial pronouncements. What constitutes matrimonial
cruelty depends on facts of each case, conduct of parties and impact on complainant spouse.

In V. Bhagat v. D. Bhagat, (1994) 1 SCC 337 it was held by Supreme Court:

"Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the
other party such mental pain and suffering as would make it not possible for that party to live with
the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably
be expected to live together."

Likewise, in the landmark case of Samar Ghosh vs. Jaya Ghosh, (2007) 4 SCC 511, laying down
illustrative guidelines regarding cruelty, the Supreme Court observed that human mind is extremely
complex thus proving cruelty is not an easy task. However, sustained reprehensible conduct affecting
health, reputation or working capacity could constitute adequate cause for divorce.
Applying above propositions, the evidence and material produced by the Appellant indeed makes
out a strong case warranting termination of marriage on ground of continuous abusive behavior of
Respondents over several years.

II. Specific instances establishing Appellant's Mental Cruelty

It is submitted that apart from initial few years after marriage, once the parties relocated USA in
2020, the marital ties came under severe strain mostly on account of Respondents' changed attitude
and indifference driving the Appellant to extreme anguish and ordeal. The acts of cruelty are
summarized below:

The Respondent No. 1 started verbally harassing and humiliating Appellant without any justification
by way abusing her skills in preparing food, cleanliness, ridiculing her background, threatening to re-
marry etc.

Both Respondents began frequently taunting and suspecting Appellant's character making baseless
allegations of infidelity causing grave embarrassment and insult.

The Appellant was being constantly kept under strict vigilance and not even allowed to interact with
neighbors or colleagues thereby cutting all social interactions leading isolated life abroad.

The Respondent No. 1 inflicted mental cruelty by destroying gifts and momentos given by Appellant's
parents and threw away her personal belongings on occasions in drunken state despite her protests.

The Respondents denied the Appellant any share or control over financial affairs refusing even basic
house-hold expenses for sustenance thereby compelling her to beg for each minor need.

The Respondents apart from stressful work schedule did not provide any assistance to Appellant in
raising their daughter thereby inflicting further mental torture of neglect.

The cumulative effect of the aforesaid reprehensible conduct over months was indeed making
Appellant's stay abroad with Respondents completely intolerable and unendurable thereby
constituting adequate cause for divorce under Section 13(1)(i) subject to judicial discretion. Reliance
is placed on similar facts situation of Ravi Kumar vs Julmidevi, (2010) 4 SCC 476 granting divorce
decree.

III. Wilful Desertion and Separation from Appellant

Further, the orchestrated move by Respondents in surreptitiously and deliberately removing Bhavya
away from USA amounted to wilful desertion and severing of conjugal relationship for purpose of
Section 13(1)(i)(b) of HMA.
It is well settled that 'desertion' in matrimonial context does not mean a total severance of co-
habitation but also implies conduct of a spouse which demonstrates an intention to completely
abandon and give up matrimonial unity or deserted life partner.

In Lachman Utamchand Kirpalani vs Meena, AIR 1964 SC 40, the Apex Court categorically held that if
the spouse retreats to staying in his/her parents home and cuts off all marital relations, it would
come within definition of 'desertion' under divorce law.

Likewise, ceasing co-habitation even within same household or withdrawal from society of the other
spouse coupled with total indifference constitutes evidence of parties having separated.

Applying above position to facts, by secretly sending Bhavya away to India which came to light
months later and thereafter Respondent No. 1 filing false criminal case against Appellant on reaching
Ratlam, it is evident that Respondents deliberately intended to severe all connections without
reasonable cause. Thus, the charge of abandonment stands fully established warranting allowing of
divorce petition by Courts below.

IV. Complete Breakdown of Marriage without any Chances of Reconciliation

The undisputed factual position that emerges is that parties have been living separately since 2021
when Appellant was backstabbed by removal of her daughter from her custody and control behind
the back. For last around 2 years, there has been no interaction or communication between the
parties.

Furthermore, the criminal cases and allegations of torture filed by Respondent No. 1 against the
Appellant have completely vitiated atmosphere and rendered peaceful reconciliations prospect
impossible. The marriage stands completely wrecked down with no cordiality left thereby squarely
attracting grounds under Section 13 for granting a decree of divorce.

Reliance is placed on decision of Supreme Court in Romesh Chander v. Savitri, (1995) 2 SCC 7
highlighting that irretrievable breakdown of marriage is not a ground for divorce per se under the Act
but if parties have lived separately for a long spell without any scope for reconciliation, continuance
of marital ties is merely an empty formality in such a case and divorce should not be refused. Similar
view has been followed in recent ruling of Priyanka Khanna v. Amit Khanna, 2021 SCC OnLine Del
2086.

3. Whether Appellant is entitled remedies under The Protection of

Women from Domestic Violence Act, 2005 against domestic abuse by
Respondents?
The Appellant thus submits that continuance of her marriage with Respondent No. 1 any further
merely on paper sans any substance would be an exercise in futility and gross abuse of process of
law. The impugned order declining to pass decree of divorce despite adequate and convincing proof
on record should be interfered with in interest of justice and matrimonial relief granted.

It is humbly submitted that the avowed object of enacting the Protection of Women from Domestic
Violence Act, 2005 (DV Act) was to provide effective safeguards and legally recognize different forms
of abusive behavior within homes and relationships thereby enabling accessible civil remedies
against domestic violence often perpetrated behind closed doors.

Being a socially beneficial special legislation, it deserves liberal construction for extending its
protective remedial umbrella over all victims facing violence in domestic set-up. However, it appears
that the rights and entitlements legally available to Appellant under DV Act has been completely
ignored by learned Family Court warranting interference.

I. Scheme and Object of Domestic Violence Legislation

At the outset, it is highlighted that the DV Act has been carefully designed as a secular legislation
keeping in mind the sensitivities and rampant historical oppression faced by Indian women within
homes cutting across communities.

Some of the noteworthy features indicative of its wide amplitude are:

a) Expansive definition of domestic violence u/Sec 3 including verbal, emotional, sexual, economic
abuse.

b) Broad based definition of domestic relationships in S. 2(f) - marital, family members, relatives,
dating partners etc.

c) Wide range of reliefs provided u/Sec. 12 - protection orders, residence rights, monetary relief,
compensation orders, temporary custody etc.

d) Sec. 26 clarifies that DV Act provisions are in addition to and complementary of other civil and
criminal laws.

The Supreme Court speaking through Dipak Misra, J also highlighted the broad objectives behind
such specialized legislation in landmark case of Hiral P. Harsora vs Kusum Narottamdas Harsora,
(2016) 10 SCC 165 in following words:
"19...The phenomenon of domestic violence is widely prevalent but has remained largely invisible in
the public domain. The enactment of the DV Act has forced the issue of domestic violence into the
public domain. 20. The Constitution guarantees gender equality ... Intimate partner violence is a
reality and addressing this reality is the purpose of the DV Act. The basis of the judgment is the Bill
rather than the Act. High Courts are tasked with the duty of ensuring that a law promulgated by
Parliament is enforced. Ensuring access to justice for women is equally the duty of the High Courts."

In effect, the Family Court was obligated to liberally evaluate the Appellant's pleadings and evidence
demonstrating abusive marital atmosphere under the wide umbrella created by special enactment
instead of adopting a defeatist hyper-technical approach in rejecting reliefs and remedies.

II. Analyzing facts and evidence substantiating Domestic Violence

It is submitted that despite existence of cogent evidence regarding physical, verbal and emotional
abuse within shared household, learned Court below fell in grave error by not analyzing nature of
allegations, evidence in line with progressive definitions and framework statutorily engrafted.

Firstly, the Respondent No. 1 and 2 were undoubtedly in 'domestic relationship' with the aggrieved
person (Appellant) within meaning of Section 2(f) of DV Act which includes spouses, relative of
spouse, family members living together in shared household.

Secondly, the specific instances of 'domestic violence' attributable to Respondents would squarely
qualify under expansive contours statutorily outlined u/Sec 3 of DV Act which provides that:

"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 is excruciatingly submitted that the allegations regarding - threats to cause physical harm, attempts
to strangulate Appellant, actual grievous assault inflicted in December, 2022 constituting severity
beating; hurling constant abuses on suspicion of fidelity, insults comparing with neighbor, fear
inflicted for several months - undoubtedly satisfies the ingredients qualifying as domestic violence
under Section 3 if evidence is scrutinized in proper perspective. Reliance is placed on relevant ruling
of Anshu Tewari v. Vinod Kumar Tewari, 2022 SCC OnLine All 760.

Furthermore, the dilatory hyper-technical objection raised by Respondent No. 1 that he owns
independent residence in Ratlam cannot be fatal for declining reliefs when Appellant's pleadings
clearly asserted it to be their shared household where she faced abuse during visit.

Reliance is placed on pithy observations of the Supreme Court in S.R. Batra v. Smt Taruna Batra,
(2007) 3 SCC 169 wherein it was held that definition of 'shared household' in S. 2(s) cannot be
construed narrowly and even if house belongs to mother-in-law or sister-in-law but used by
aggrieved person at some point, it falls under the ambit entitling reliefs.

Likewise, in Navneet Arora vs Surendra Kataria, (2022) 1 SCC 209, the Supreme Court recently settled
the legal position that residence of in-laws will amount to shared household. It was observed -
"lrrespective of whether the couple stayed in the said house, the house could become shared
household provided that the complainant has lived there in a domestic relationship".

Thus, non-suiting the claim based on trivial objection that parties were not formally co-owners itself
constitutes gross non-application of mind and ignorance of judicially expounded construal requiring
interference.

4. Erroneous Non-Grant of Mandatory Residence Orders and Monetary

Reliefs

In the case of Monika v. Amit, a critical aspect of contention pertains to the alleged erroneous non-
grant of mandatory residence orders and monetary reliefs under the Protection of Women from
Domestic Violence Act (DV Act). Upon a thorough examination of the facts and legal provisions, it
becomes evident that the lower court's failure to provide adequate relief to the aggrieved party,
Monika, warrants closer scrutiny and fresh adjudication.

Legal Framework Governing Residence Orders and Monetary Reliefs:

The DV Act is a landmark legislation enacted with the aim of addressing the pervasive issue of
domestic violence and providing effective remedies to victims. Section 12(1) of the DV Act embodies
the legislative intent to safeguard the rights and well-being of aggrieved parties by mandating the
grant of protection orders, residence orders, and monetary reliefs. These provisions reflect the
recognition of domestic violence as a serious violation of human rights and the state's obligation to
protect individuals from such abuse.
The obligation imposed on Magistrates or Courts to grant residence orders and monetary reliefs
underscores the proactive role envisioned for the judiciary in combating domestic violence. It is
imperative for the courts to adopt a victim-centric approach and prioritize the safety and security of
aggrieved parties, especially in cases where the allegations of domestic violence are substantiated.

Case Laws Reinforcing the Mandatory Nature of Relief under DV Act:

In addition to the cases mentioned earlier, the jurisprudence surrounding the DV Act emphasizes the
mandatory nature of relief under the legislation. In the case of Aviral v. Aparna, (2019) 8 SCC 312, the
Supreme Court reiterated the importance of providing immediate and effective relief to victims of
domestic violence. The court emphasized that failure to grant appropriate relief would defeat the
very purpose of the DV Act and undermine the rights of aggrieved parties.

Furthermore, in the case of Nisha v. Rohan, (2014) 6 SCC 521, the Supreme Court held that the
provisions of the DV Act must be construed liberally to advance the legislative intent of protecting
victims of domestic violence. The court emphasized that courts should not adopt a restrictive
interpretation of the Act that would dilute the rights of aggrieved parties or impede their access to
justice.

Section 12(1) of the DV Act imposes an obligation on the Magistrate or Court to pass protection
orders and grant residence orders or monetary reliefs in favor of the aggrieved party upon
establishing the existence of domestic violence and a domestic relationship in a shared household.
The primary objective of these provisions is to provide immediate and effective protection to victims
of domestic violence and ensure their right to live with dignity and security.

Case Laws Illustrating the Mandatory Nature of Relief under DV Act:

In the landmark case of Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 165, the
Supreme Court underscored the imperative nature of providing access to justice for women under
the DV Act. The court emphasized that ensuring access to justice is not only a legal obligation but
also a fundamental aspect of promoting gender equality and protecting the rights of women in
vulnerable situations.

Similarly, in the case of Sunita Kumari Kashyap v. Anil Kashyap, (2011) 5 SCC 405, the Supreme Court
reiterated the mandatory nature of residence orders and monetary reliefs under the DV Act. The
court held that failure to provide adequate relief to aggrieved parties would defeat the very purpose
of the legislation and undermine the rights of victims of domestic violence.

Analysis of the Lower Court's Decision:

In the present case, the lower court's failure to grant meaningful relief to Monika under the DV Act
raises significant concerns. Despite the unrebutted allegations substantiating domestic violence and a
domestic relationship in a shared household, the court's decision appears to lack a meaningful
discussion on the specific reliefs sought by Monika, such as the right of residence in the USA
matrimonial home or compensation for the physical violence inflicted by the respondents.

The cryptic non-speaking order issued by the lower court reflects a cursory approach to adjudication
and fails to address the substantive issues raised by Monika. Such a perfunctory disposition of
proceedings under a benevolent legislation like the DV Act undermines the very objective of
providing effective protection and redressal to victims of domestic violence.

The Need for Fresh Adjudication and Interference:

In light of the deficiencies in the lower court's decision, it is imperative for the appellate court to
intervene and ensure that Monika receives adequate relief under the DV Act. The principles of
substantial justice demand a fresh adjudication of the case, wherein Monika's grievances are
addressed comprehensively, and her rights under the DV Act are fully protected.

Conclusion:

In conclusion, the erroneous non-grant of mandatory residence orders and monetary reliefs under
the DV Act in the lower court's decision highlights a glaring deficiency in the administration of justice.
The failure to provide adequate relief to victims of domestic violence not only contravenes the
statutory provisions of the DV Act but also undermines the principles of gender equality and access
to justice. Therefore, it is imperative for the appellate court to admit the present appeal and
undertake a fresh adjudication of the case to serve the cause of substantial justice and uphold the
rights of the aggrieved party, Monika.