Family Law Moot Court Memorial

FAMILY LAW MOOT COURT ASSIGNMENT-3
Name –
1. Sasmit patil 1182200068
2. Yash kaspate 1182200039
IN THE MATTER OF
Aarohi Joshi ...…….Petitioner

VS.
Kapil Joshi ...…..Respondent
WRITTEN SUBMISSIONS ON BEHALF PETIONER
TABLE OF CONTENTS [INDEX]
1. STATEMENT OF FACTS
2. SECTIONS USED
3. ARGUMENTS ADVERSED-:
1) ISSUE 1-: Whether the grounds stated in the petition by the Petitioner are
sufficient enough to entitle her to obtain a decree of divorce by the court?
2) ISSUE 2-: Whether the petition is maintainable?
3) ISSUE 3-: Whether the Petitioner has any cause of action and locus-
standi to file and maintain the present petition?
4) ISSUE 4-:weather the petioner can seek divorce when the restitution
of conjugal rights is been granted
4. PRAYER
1
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STATEMENT OF FACTS
● The current appeal concerns a Petition filed by Aarohi, the

Petitioner wife, under Section 13 of the Hindu Marriage Act, 1995,
requesting that the parties' marriage be dissolved by a court order.
● On April 1, 2001, the parties to the dispute signed a marital
agreement. According to the wife's claims,the parties' marriage
was not consummated. She was mistreated by her spouse, and
they never shared a bed. After 5 days, she returned to her parents'
house.
● Despite five years of marriage to the Respondent's spouse, the
situation remained the same with no signs of improvement.
According to her testimony, the Respondent spouse would come
home late at night, inebriated, and physically, verbally, and
emotionally assault her. He would beat her up if he was inebriated.
● She made a concerted attempt to persuade and persuade him..
She also found out that the spouse had a bad reputation. He had
several extramarital affairs with different women, was an alcoholic,
and used to drink and use drugs.
● The Respondent husband went on to say that the Petitioner's wife
did not want to live in the hamlet and continued persuading him to
go to the metropolis. Perhaps he was jobless and couldn't afford to
live in the city, so the demand seemed ludicrous and unreasonable
to him.
● Following that, he filed a plea for recovery of conjugal rights under
Section 9 of the Hindu Marriage Act, 1955. The court gladly
granted his request. The wife did not object to the petition, and she
did not return to her marital residence. The petition's additional
significant averments were denied, and the petition was requested
to be dismissed with costs.
2
SECTION USED
 Grounds for divorce-

 SEC 13 (1)(i) - after the solemnisation of the marriage, had
voluntary sexual intercourse with any person other than his
or her spouse;
 SEC 13 (1)(i) a has, after the solemnisation of the marriage,

had voluntary sexual intercourse with any person other than
his or her spouse;
 SEC 13 (1A)- that there has been no restitution of conjugal

rights as between the parties to the marriage for a period
of 22 [one year] or upwards after the passing of a decree for
restitution of conjugal rights in a proceeding to which they
were parties.
 SEC 23 (1) a any of the grounds for granting relief exists and
the petitioner 47 [except in cases where the relief is sought by
him on the ground specified in sub-clause (a), sub-clause (b)
or sub-clause (c) of clause (ii) of section 5] is not in any way
taking advantage of his or her own wrong or disability for the
purpose of such relief, and
ARGUMENTS ADVERSED
1. Whether the grounds stated in the petition by the Petitioner are sufficient
enough to entitle her to obtain a decree of divorce by the court?
 Now as per the facts of the case, the respondent physically
abuses the petioner ,he beats her in state of drunkenness. All of
this proves a physical cruelty, which is gross misconduct on part
of husband which creates a danger and threatening
environment for any reasonable person and it Is not expected
from any reasonable man to live in the same. hence the ground
3
of cruelty is satisfied which entitles her to obtain decree of
divorce
 In Shobha rani vs madhukar reddy the SC had observed that
the cruelty can either be physical or mental. In of shamar ghosh
vs jaya ghosh the SC defined mental cruelty were they stated
that mental cruelty is the state of mind of deep anguish and
frustration of one spouse’s mind caused by the conduct of
other+The ill conduct by the husband, his refusal for sexual
relationships, his mistreatment all accumulated to cause mental
cruelty. All these factors made the petioner to move to her
matrimonial house fearing her mental and physical health if
stayed with the respondent.
 This was only made worse with the fact that the respondent was
having an adulterous life..the respondent had several extra
martial affairs which is a ground for divorce under sec 13
subsec 1 clause I. it states that, after the solemnization of the
marriage, had voluntary sexual intercourse with any person
other than his or her spouse it so a ground for divorce.
 In pushpa devi vs radhe shyam, the honorable hc of Rajasthan
had find that direct evidence of adultery is extremely rare and it
would be unreasonable to expect the same.
 the petioner tried to adjust with this unjustified treatment by the
respondent for 5 long years which is more than enough period
under such circumstances. No reasonable person so expected
to live in such conditions and endure the same sufferings.In light
of all this circumstances that the cruel treatment by husband
and adultery commited by the husband, the petitioner has all
rights and reasons to obtain a decree of divorce.
2. Whether the petition is maintainable?

 The said court has jurisdiction. under various provisions of the
act. The act has provision for the family court to hear
proceeding for parties for dissolution of marriage.
 Now according to Section 13 subsection a clause ii, if there has
been no restitution of conjugal rights for 1 year or more, the
divorce petition will be maintainable. As per the fact of our case,
4
the wife did not return to matrimonial house after the petition
and thus the requisite is satisfied.
 the treatment by husband is clear violation of section 13
sebsec1 clause ia of the Hindu marriage act. also the
adulterous behavior by the respondent is also a ground for
divorce as per sec 13 subsec1 clause I of the act. Hence the
petition is maintainable and the Petitioner is fully entitled to
obtain a decree of divorce
3. Whether the Petitioner has any cause of action and locus-standi to file and
maintain the present petition?
3 main point
 Irreversible breakdown-: The parties have been living separately
since 2006, a span of over 15 years. This is sufficient evidence
that the marriage is irreversibly destroyed. A de facto divorce
occurs when a marriage ends. In the case of Durgamai vs
Arundati Tripathi, the 71st Law Commission of India shed some
light on the breakdown of marriage. It was said that after the
husband and wife have been separated and have been living
apart for a sufficient period of time, it becomes hard to rupture
the marriage. The Honourable Supreme Court ruled that the
parties in a relationship had reached a point of no return, and
that a viable settlement is unlikely. It is said that getting a
husband and wife back together after 5 to 10 years apart is
tough.
 The responder was a guy of questionable reputation, it should
be noted. He was a drinker who abused his wife, and the
petitioner had also been the victim of domestic violence.
 So this man has a bad reputation and has had extramarital
relationships; all of these things have an impact on the
marriage's purity.
 As a result of all of these circumstances, the respondent party
in the marriage is accountable.
4. .weather the petioner can seek divorce when the restitution of conjugal
rights is been granted
5
The fact that the petitioner refused to return to the matrimonial
residence does not prevent her from filing for divorce under section
23 of the Hindu marriage act. The supreme court decided in
Dharmendra Kumar vs Usha Kumar that violation of restitution of
conjugal rights did not amount to misconduct. This judgement
barred the petitioner from obtaining any kind of redress
6
PRAYER
WHEREFORE IN THE light of the issues raised, arguments advanced and
authorities cited, it is prayed before the Hon’ble court to-
1. To pass the decree of divorce under section 13 of the Hindu
Marriage Act, 1955.
2. To declare that the contesting defendant has treated the
petitioner with cruelty and it is a ground for divorce.
3. To pass an order to pay sum rs five lakhs as compensation for
the mental and physical agony caused to the petioner due to
the illtreatment by the respondent.
And pass any other order or relief that it deems fit in the interest of justice,
Equity and good conscience.
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FAMILY LAW MOOT COURT ASSIGNMENT-3

Aarohi Joshi ...…….Petitioner

WRITTEN SUBMISSIONS ON BEHALF PETIONER

TABLE OF CONTENTS [INDEX]

2) ISSUE 2-: Whether the petition is maintainable?

● The current appeal concerns a Petition filed by Aarohi, the

 Grounds for divorce-

 SEC 13 (1)(i) a has, after the solemnisation of the marriage,

 SEC 13 (1A)- that there has been no restitution of conjugal

2. Whether the petition is maintainable?

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