TEAM NO.

V.R. KRISHNAN EZHUTHACHAN LAW COLLEGE, ELEVANCHERY

10TH SEMESTER INTRA-CLASS MOOT COURT

IN THE HON’BLE COURT OF V.R. KRISHNAN EZUTHACHAN

LAW COLLEGE, ELEVENCHERY

UNDER SECTION 7 OF THE FAMILY COURTS ACT 1984

SMT. APARNA
(PETITIONER )

V.

SHRI. ARUN
(RESPONDENT)

ON SUBMISSION TO THE REGISTER OF THE COURT OF

V.R. KRISHNAN EZHUTHACHAN LAW COLLEGE, ELEVENCHERY

BY
ADITHYA S
ROLL NO.04, B.B.AL.L.B(HONS)
SANDRA PRASAD.V
ROLL NO.42, B.B.A L.L.B(HONS)

1
 MEMORIAL ON BEHALF OF THE RESPONDENT

LIST OF CONTENTS

PAGE
SL NO CONTENTS
NO
3
1 LIST OF ABBREVIATION
4
2 LIST OF AUTHORITIES

3 STATEMENT OF JURISDICTION 5

4 STATEMENT OF FACTS 6

5 ISSUES RAISED 7

6 SUMMARY OF ARGUMENTS 8

7 ARGUMENTS ADVANCED 9-16

8 PRAYER 17

2
 ABBREVIATIONS

AC Appeal Cases

AIR All India Reports

Art. Article
ANR. Another
Govt. Government
Hon’ble Honorable
Ltd. Limited
SLP Special leave petition
SCC Supreme Court cases
No. Number
HC High Court

Ors. Others

Pg. Page
Re. Reference
Pvt. Private
SC Supreme Court
Sd/ Signed
UOI Union of India
U/S. Under Section
V. Versus
Vol. Volume
Assn Association

3
 INDEX OF AUTHORITIES

CASES REFFERED
1. Mrs. Sarawathi Palaniappan v Vinod Kumar Subbiah [2013] CMA 210 (Md).
2. N.G Dastane v S. Dastane [1975] AIR 1534 SC.
3. Gaytri Bajaj v Jiten Bhalla [2013] AIR 77 (SC).
4. Evans v Evans [1790] Hagg Con 35, [1790] 1 ER.
5. Rajani v Subramonian [1990] AIR 1. (Ker).
6. Somar Ghosh v Jaya Ghosh [2007] AIR 1386 (SC).
7. V. Bhagat v D. Bhagat [1994] 1. SCC 337.
8. Gita Hariharan v. Reserve Bank of India & Anr. (1999)
9. Anil Kumar Jain v. Maya Jain
10. Sanju v Sobhanath
11. The Queen v. Boya Linga and Ors. [1882] 5. ILR 268 (Mad).
12. Kamalam amma v Kumar Pillai
13. Savitri Pandey v prem Chandra Pandey
14. Bijal Parag Dave v Parag Dave
15. Rohtash Singh v SMT Ramendrei
16. Shiva Kumar Yadav v SMT Santhoshi
17. Githa Hariharan v reserve bank of India and others
18. Jai Prakash Khadria v SMT Nimta Khadria
19. in re custody of K.S

STATUTES AND OTHER AUTHORITIES

1. The Hindu Adoption and Maintenance Act 1956

2. The Hindu Marriage Act 1955
3. The Hindu Minority and Guardianship Act 1956
BOOKS REFERRED
1. Prof.Kusum, Family Law Lectures (5th Edition, LexisNexis 2019).
2. Malik surendra and sudeep, Supreme Court on Familyband Personal Laws (Volume 1
& 3, Eastern Book Company 2016)

DATABASE REFERRED

1. http://www.scconline.com (last visited on 5th Oct, 2020).

2. http://www.manupatra.com(last visited on 4th Oct, 2020).
3. http://www.westlaw.org(last visited on 16th Sept, 2020).
4. http://www.indiankanoon.com(last visited on 20th Sept, 2020).
5. http://www.lexisnexis.com (last visited on 20th Sept, 2020).
6. http://www.judis.nic.in (last visited on 20th Sept, 2020).

4
 STATEMENT OF JURISDICTION
The respondent has approached this Hon’ble family court of Kerala, under section 71 of family
court Act 1984.

1
Section 7. Jurisdiction
(1) Subject to the other provisions of this Act, a Family Court shall—
(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil
court under any law for the time being in force in respect of suits and proceedings of the nature referred
to in the Explanation; and
(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court
or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family
Court extends.
Explanation.—The suits and proceedings referred to in this sub-section are suits and proceedings of the
following nature, namely:
(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring
the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of
conjugal rights or judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status
of any person;
(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of
either of them;
(d) a suit or proceeding for an order or injunction in circumstance arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any
minor.
(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise—
(a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for
maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and (b)
such other jurisdiction as may be conferred on it by any other enactment.

5
 STATEMENT OF FACTS

Arun and Aparna, a Hindu hail from a small village in Kerala. The marriage was
solemnized according to Hindu tradition on 1 st January 2019 . After the marriage Arun was
offered a promotion in rank and in 1 st January 2020 Arun and Aparna was blessed with their
child Tara.
Arun’s company suffered a loss in revenue and Arun began to express his frustration
vocally and physically by assaulting Aparna .
In December 2022 Aparna lost her father and she left to her parents home. Aparna got
a visit from one of her school mates , Rahul and her bonding with him continue to grow.
Later she returned to her marital home, Arun noticed a change in her behaviour and she was
keeping a distance from him. Aparna continued to keep the relationship with Rahul, Arun
overheard the intimate conversation between them, this infuriated him and on its rage he
continually abused her . Next day Aparna with her 9 year daughter left marital home and
returned to her parents place.
Aparna decide to put an end to her marital relationship with Arun. And she filed a
petition for divorce in family court on the ground of cruelty, maintenance under Hindu
Marriage Act 1955 and custody of child under Hindu Minority and Gaurdianship Act 1955 .

6
 ISSUES

ISSUE 1
Whether the petitioner is entitled for divorce on the ground of cruelty is maintainable
or not?

ISSUE 2
Whether petitioner entitled for custody of child?

ISSUE 3
Whether petitioner is entitled for maintenance for child and wife?

7
 SUMMARY OF ARGUMENTS

ISSUE 1: WHETHER PETITIONER IS ENTITLED FOR DIVORCE ON THE

GROUND OF CRUELTY?

It is submitted before this Hon’ble court that the Petitioner is not entitled for divorce on the
ground of cruelty because she was not subjected to both mental and physical cruelty by
respondent under the provision of Section 13(1) (i-a) of Hindu Marriage Act 1955.

ISSUE 2: WHETHER PETITIONER IS ENTITLED FOR CUSTODY OF THE CHILD?

It is submitted before this Hon’ble court that the Petitioner is not entitled for custody of the
daughter as per provision under Section 6 of Hindu Minority and Guardianship Act 1956.

ISSUE 3: WHETHER THE WIFE AND CHILD IS ENTITLED TO GET

MAINTENANCE?
It is humbly submitted before the Hon’ble court that the Petitioner is not entitled to get
Maintenance under section 25 of Hindu Marriage Act 1955

8
 ARGUMENTS ADVANCED

ISSUE 1

WHETHER PETITIONER IS ENTITLED FOR DIVORCE ON THE GROUND OF

CRUELTY?
It is humbly submitted to this Hon’ble Court that Marriage is a sacramental union, a
holy union between man and woman and not a contractual union as per Hindu tradition.
According to Manu, husband and wife are united to each other not merely in this life but even
after death, in the other world.
It is the contention of the counsel for the respondent that as per the Act any
marriage solemnized can be dissolved by a decree of divorce on the ground that the other
party has, after the solemnization of the marriage, treated the petitioner with cruelty 1.”The
term ‘Cruelty’2 constitutes both acts of physical and mental cruelty. Even though the act
doesn’t define mental cruelty as such, the Apex Court has in ample verdicts defined and
established the grounds for mental cruelty.
In V. Bhagat v D. Bhagat3 the Hon’ble SC defined Mental Cruelty as ‘that
conduct which inflicts upon the other party such mental pain and suffering as would make it
not possible for that parties cannot reasonably be expected to live together’. It was further
stated that it ‘What is cruelty in one case may not amount to cruelty in another case. It is
matter to be determined in each case having regard to the facts and circumstances of that
case. If it is a case of accusation and allegation, regards must also be had to the context in
which they were made’.
Again in Rajani v Subramanian, Court observed that the concept of mental
cruelty depends upon the type of life the parties are accustomed to or their economic, social
conditions and their human values to which they attach importance, judged by standard of
modern civilization in the background of the traditions of our society4. Also in Evans v
Evans, Court stated that ‘mere austerity of temper, petulance of manners, rudeness of
language, want of civil attention and accommodation, even occasional sallies of passion, do
not amount to legal cruelty5’.Similarly, occasional wordy altercations may not amount to
mental cruelty. In matrimonial relationship, parties must be prepared to the normal wear and
tear of such life6.
As was held in N.G Dastane v S. Dastane, Court stated that the foundation of a sound
marriage is tolerance, adjustments and respecting efforts of one another 7. Furthermore, in
Somar Ghosh v Jaya Ghosh case, the Apex Court laid fourteen illustrative but not exhaustive
guidelines to determine what acts constitutes mental cruelty. The relevant points are (i), (ii),
(iii) and (iv) are as follows;

1
Section 13(1)(i-a of the Hindu Marriage Act 1955)
2
Cruel behaviour or attitudes
3
V.Bhagat v. D Bhagat (1994) 1.scc 337
4
Rajani v. Subhramanian (1990) AIR 1. (ker)
5
Evans v. Evans (1790) Hagg con 35, 1790
6
Mrs. Sarawathi palaniappan v. Viondh kumar subhayya
7
NG Dastane v. S Dastane (1975) AIR 1534 SC

9
(i) ‘Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of
language, petulance of manner, indifference and neglect may reach such a degree that it makes
the married life for the other spouse absolutely intolerable.

(ii) The conduct must be such more than jealousy, selfishness, possessiveness, which
causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of
divorce on the ground of mental cruelty.

(iii) Mere trivial irritation, quarrels, normal wear and tear of the married life which happens
in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty8.

(iv) The married life should be reviewed as a whole and a few isolated instances over a
period of years will not amount to cruelty. The ill conduct must be persistent for a fairly
lengthy period, where the relationship has deteriorated to an extent what because of the acts
and behaviour of spouse, the wronged party finds it extremely difficult to live with the other
party any longer, may amount to mental cruelty.”Recently, Punjab and Haryana High Court
held that an occasional outburst, use of offensive language once in a while cannot be termed
as cruelty, a ground for dissolution of marriage 9. Therefore, it is contented before this Hon’ble
Court that, the acts of our client are not so serious in nature and it does not constitute mental
cruelty as the acts are trivial10 irritations in normal wear and tear of the marriage life which
happens in day-to-day life.

As our client’s company suffered a loss in revenue due to major depression in economy, this
resulted in him managing multiple projects at the same time which did not leave him with much
free time either outside office or for his family. Also, the situation of overhearing his wife
having an intimate conversation with another man acted as a ground for grave and sudden
provocation11 on the Respondent’s part resulting in him getting abusive and violent with her.
Such action on part of the wife is unendurable in nature for any level-headed husband.

8
Somer Ghosh v. Jaya Ghosh (2007) AIR 1386
9
Serandra sharma, Hindusthan Times (6 Oct 2019)
10
Little value or importance
11
The Queen v. Boya linga and Ors. (1882)

10
 ISSUE 2

WHETHER PETITIONER IS ENTITLED FOR CUSTODY OF HER DAUGHTER

CUSTODY UNDER THE HINDU MINORITY AND GUARDIANSHIP ACT 1956

It is submitted before the Hon’ble Court that the petitioner is not entitled to get the custody of
her daughters as per provision of Hindu Minority and Guardianship Act, 1956. The Act
provides the natural guardians of a Hindu minor. As per the Act the natural guardians of a
Hindu minor in the case of a boy or an unmarried girl is the father, and after him, the mother.
In the instant case the elder daughter is above 9 years old and according to this provision the
custody of daughter must be given to the respondent.

CUSTODY BY CONSIDERING THE WELFARE OF THE CHILD

The SC held that issue of custody of minor child is to be decided from the angle of welfare of
child and not the better rights of parents as welfare of child is ultimate consideration12. The
welfare of the child- Which parent will be able to take care of the child better. Welfare does not
just mean money, or which parent is earning more. It means which parent can grant a more safe
and comfortable environment for the child to grow up. The welfare of the child is more
important than what the parents want or who the parents think deserves to have custody.

Anil Kumar Jain v. Maya Jain is a clear example of how stability and consistency play an
important role in a child's life, especially in cases concerning custody13. The Supreme Court
has highlighted the significance of providing a steady environment for a child, with minimal
disruptions in terms of custody transfers. This ensures the child's overall wellbeing and
development are not negatively impacted. Therefore, it is crucial to prioritize the child's best
interests while dealing with custody matters and minimize any changes that may cause
instability in their lives.It is important to note that custody battles can be lengthy and
emotionally draining. Parents are encouraged to seek counseling and mediation to avoid
lengthy legal battles and prioritize the best interests of the child 14.
in Gita Hariharan v. Reserve Bank of India & Anr. (1999):* This landmark Supreme Court
case established the principle of 'welfare of the child' as the paramount consideration in matters
of custody15. The court emphasized that the best interests and welfare of the child should be
the primary factor in determining custody disputes. The Supreme Court of India in several
judgments has stated that custody orders must be made on a case-by-case basis, considering

12
Gayathri bajaj V. Jithane bella (2013) AIR 77 Sc
13
Anil kumar jain V. Maya Jain
14
Best interest of the child
15
Gita Hariharan v. Reserve Bank of India & Anr. (1999)

11
the welfare of the child as the paramount consideration. The court may also consider factors
such as continuity and stability, the child's age, physical and emotional needs, and the parents'
capacity to provide for the child.

It is submitted before this Hon’ble Court that according to the facts a petitioner ended
up spending a lot more than her usual time making phone calls and web chats with Rahul due
to which daughter ended up bearing the brunt of being ignored by her mother .Due to this her
academics and health had started to suffer.

In Sanju v Sobhanath father was given child custody because he has the better financial
condition than the mother16. our client being financially strong it would be in the better interest
of the child that he should raise the daughter in his care and custody17.

16
Sanju v. Sobnathn
17
The protective care or Guardian ship of someone or something

12
 ISSUE 3

WHETHER THE WIFE AND CHILD IS ENTITLED TO GET MAINTENANCE?

It is humbly submitted before the Hon’ble court that the wife is not entitled to get
Maintenance under section 2518 of Hindu Marriage Act 1955

Claim for Maintenance of wife

In simple words, maintenance is an amount which is given in the form of financial assistance
to either of the party. According to Section 3 (b)(i) 19 of Hindu Marriage Act 1956
“Maintenance” includes
(i) in all cases, provision for food, clothing, residence, education and medical attendance
and treatment;
(ii) in the case of an unmarried daughter, also the reasonable expenses of an incident to
her marriage.
The basic motive of providing the maintenance is to maintain an equitable standard of living
of the spouse or any other dependent personality as it was before the separation. The Act lays
down the grounds in case of which wife can live apart and acquire maintenance
1.Desertion
2. Cruelty
3.Leprosy
4.Coversion
5.Any other justifiable
Under this case wife is not entitled get maintenance because she cannot satisfy any
above grounds for Maintenance under Hindu marriage Act. Under section 125(4) in the Code
of Criminal procedure 1973 20 “No wife shall be entitled to receive an allowance from her
husband under this section if she is living in Adultery or if without any sufficient reason she
refuses to live with her husband” And in this case the wife is refused to live with her husband
without any sufficient reason and also, she has intimate relation with her Friend.

In Kamalam Amma v Kumar Pillai21 it was observed that in view of strained relations, the
wife cannot claim right of residence in the matrimonial home so as to resist a decree in
possession. On appeal against it by the wife, the Apex court held that right of residence is
included in the term’s "maintenance" in the light of the above judgments in the instant case the
petitioner was having illicit relations with a person Rahul who was one of her school
classmates. The petitioner spent most of her time in the conversations with Rahul. She ended
up spending a lot more than her usual time making phone calls and web chats with Rahul She
had completely given up any hopes and chances of letting Arun be a part of her and her
children's life and this in turn strengthened her bond with Arun to a higher magnitude of
dependency.

18
Section 25 of Hindu marriage act 1955
19
section 3(b)(i) of Hindu marriage Act 1955
20
section 125(4) criminal procedure code 1973
21
kamalam amma v kumar pillai

13
PETITIONER REFUSED TO LIVE WITH HUSBAND ON A FALLACIOUS REASON.

In the instant case the petitioner refused to live with the Husband basing her decision on a
completely fallacious reason. It is contended before this Hon'ble Court that the petitioner had
left home without any reasonable excuse. It has been claimed that she subjected to physical as
well as mental cruelty whereas upon comprehension, it is evident that it was merely ordinary
wear and tear of family, and this has to be distinguished from "cruelty"
Arun's company suffered a loss in revenue and implemented pay cuts across employees of all
ranks. In order to gain back his position Arun got too embroiled in his work and started
managing multiple projects at the same time which did not leave him with much free time
outside the office. Soon his time and attention towards family withered away under the stress
of work.

The respondent was in stress due to which he was not able to give time to his family. The
frustration of Arun was nothing more than an ordinary human reaction and his actions were
never directed towards causing harm to the petitioner. "Mental cruelty is the conduct of other
spouse which causes mental suffering or fear to the matrimonial life of the other Cruelty,
however, has to be distinguished from the ordinary wear and tear of family life. It cannot be
decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of
the course of conduct which would, in general, be dangerous for a spouse to live with the
other"22 (Savitri Pandey v Prem Chandra Pandey)

Further, in Bijal Parag Dave v Parag Dave" 23 , where the family Court denied maintenance to
a wife on the ground of misconduct of refusing to join the matrimonial home, the high Court,
on appeal by the wife, held that the reason given by the family is fully fallacious and cannot be
sustained". Wife is not entitled to maintenance who deserted her husband 24 (Rohtash Singh v
Smt Ramendrei) Wife is residing separately without any sufficient reason and she has not been
able to establish and prove her case. Additional session judge that there is sufficient reason for
to live separately is perverse and contrary to the evidence available on record, which cannot be
sustained for the reasons mentioned hereinbefore this order 25 (Shiv Kumar Yadav v Smt
Santhoshi) The Karnataka high court has held that a wife cannot claim maintenance from her
husband under section 12 of the domestic violence Act 26 , when she is in an adulterous
relationship with another person.

It is therefore humbly submitted before this Hon'ble Court that the petitioner was not subjected
to any sort of cruelty by the conduct of the respondent. It is well-known that in any matrimonial
litigation there would always be allegations of matrimonial misconduct and if this were to be
made a relevant consideration then in an matrimonial litigation would the opposing spouse be
entitled to maintenance. And the petitioner has adulterous relationship with another person so
the petitioner is not entitled to get maintenance under 25 of Hindu marriage Act

22
Savitri pandey v prem Chandra pandey
23
bijal parag dave v parag dave
24
Rohtash singh v smt ramendrei
25
shiva kumar Yadav v smt santhoshi
26
section 12 of the domestic violence Act

14
Claim for Maintenance of Child

It is humbly submitted before the hon’ble court that the respondent is not entitle to provide
maintenance to the child as, he is the natural guardian of the child the respondent has the right
to obtain the custody of his child from the petitioner. Section 20 of Hindu Adoption and
Maintenance Act 1956 27 imposes an obligation upon the parents- mother and father, both
equally to maintain the children- both legitimate and illegitimate. Section 25 of Hindu Marriage
Act28 the children are also entitled to get maintenance. Section 26 of HM Act 29 also provides
that in any proceedings under the Act the court can from time to time pass interim orders and
make provisions in respect of the custody, maintenance and education of the minor children.

In the event that the mother has a bad reputation, which means she has intimate relation with
her friend that create change in her behaviour and she was keeping distance from him and her
daughter, which might harm the kid and it will affect the upbringing or mental and physical
development, the child’s custody will be given to the father. In the present case respondent is
not entitle to provide maintenance to the child as, the respondent has the right to obtain the
custody of his child from petitioner.

Githa Hariharan v. Reserve Bank of India and another (1999)30: In this landmark case,
the Supreme Court of India ruled that the custody of a child should not automatically be granted
to the mother solely on the basis of her gender. The court held that the welfare of the child
should be the paramount consideration in determining custody, and that both parents should
have equal rights and responsibilities in raising their child.

Jai Prakash Khadria v. Smt. Nimta Khadria (2000)31: In this case, the Delhi High Court granted
custody of a child to the father, noting that the child's welfare would be best served by living
with the father rather than the mother. The court emphasized that the child's best interests
should be the primary consideration in custody disputes and that gender should not be a
determining factor.

In re Custody of K.S. (1986)32: In this case, the Washington Supreme Court ruled in Favor of
the father in a custody dispute, finding that the mother had repeatedly interfered with the
father's relationship with his child and had engaged in alienating behaviour. The court awarded
custody to the father based on the best interests of the child.

From the above clearly understand, the welfare of the child should be the paramount
consideration in determining custody, and that both parents should have equal rights and
responsibilities in raising their child, so father has the right to maintain the child under her
custody, not always the mother is better caretaker than father.

27
Section 20 of Hindu Adoption and Maintenance Act 1956
28
section 25 of hindu marriage act 1955
29
section 26 of hindu marriage act 1955
30
githa Hariharan v reserve bank of india and others
31
jai prakash khadria v smt nimta khadria
32
in re custody of K.S

15
 It is therefore humbly submitted before this Hon'ble Court that the contention raised by the
respondent before the honourable court that the wife having an intimate relationship with
another is proved beyond reasonable doubt and the respondent is entitled to get custody of his
child. So here by, the respondent arises an allegation that the wife is not entitled to seek
maintenance from respondent. And respondent was not entitle to provide maintenance to the
child as, he is the natural guardian of the child the respondent has the right to obtain the custody
of his child from the petitioner.

16
 PRAYER

Wherefore, in the light of facts stated, the cases cited, issues raised, arguments
advanced and authorities cited, it is most humbly prayed and implored before the Hon’ble
Family Court, that it may be graciously pleased to adjudge and declare that:

1. The Petitioner is not entitled for divorce on the ground of cruelty.

2. The Petitioner is not entitled get custody of her daughter.

3. The Petitioner is not entitled to get Maintenance under section 25 of Hindu Marriage
Act 1955

Also, pass any other order that the Court may deem fit in the favour of Respondent to meet the
end so for Equity, Justice and Good conscience.

17