TEAM CODE: HLC/MC&I/6.

5/06

MOOT COURT AND INTERNSHIP (PAPER: 6.5)

CLINICAL PAPER – IV

_________________________________________________________________________________________

_________________________________________________________________________________________

BEFORE THE HON’BLE HIGH COURT OF SCANDINA

CRIMINAL APPELLATE JURISDICTION

_________________________________________________________________________________________

CRIMINAL WRIT PETITION NO. _____/ 2024

_________________________________________________________________________________________

IN THE MATTER OF

ANUSHKA & RANI ...................................................PETITIONER

VERSUS

RAHUL.................................RESPONDENT

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT

_________________________________________________________________________________________

MEMORIAL ON BEHALF OF THE RESPONDANT

COUNSEL FOR THE RESPONDENT

 TABLE OF CONTENTS

1 INDEX OF AUTHORITIES 3
2 STATEMENT OF JURISDICTION 4
3 STATEMENT OF FACTS 5
4 STATEMENT OF ISSUES 7
5 SUMMARY OF ARGUMENTS 8
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 ?
6 ARGUMENTS ADVANCED 9
1. Whether the devorce petition filed by Anushka before the Hon’ble 9-15
Supreme Court is justified or not ?

2. Whether Rani’s appeal of maintenance before the Hon’ble Supreme

Court is maintainable or not ?

7 CONCLUSION AND PRAYER 16

8 BIBLIOGRAPHY 19
 3
INDEX OF AUTHORITIES
LEXICONS
Wharton's. Wharton 's Law Lexicon, ( 17th Ed. 2017)

BOOKS NAME BLACK'S LAW DICTIONARY Ninth edition by Gamer

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 20/8 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 editio11 20/4 by Dr. Basant K. Shanna

HINDU LAW Ni11th 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 Twe111y second edition 2013 by Dr. Paras Diwan

MULLA HINDU LAW 2 JS' Edition Reprillf 2012 by Satyajeet A Desai

THE CONSTITUTION LAW OF INDIA First edition 2009 by Narender Kumar

THE CONSTITUTION OF INDIA Ninth Edition Reprint 2016 by Narender Kumar

 4

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

(I) 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 (I) 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.
 5
STATEMENT OF FACTS

I) That, Mr. Vi rat 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, Anushk.a 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 20 16, Anushka got transferred to Delhi. She took her daughters to
Deihl 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 l st 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.
 6
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
weU as by Rajastban 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
 7
STATEMENT OF ISSUES

ISSUE 1.
Whether the divorce petition filed by Anushka before the Hon 'ble Supreme Court is justified or
not?

ISSUE 2.

Whether Rani's appeal of maintenance before the Hoo'ble Supreme Court is maintainable or
not?
 8
SUMMARY OF ARGUMENTS

ISSUE I

WHETHER THE DIVORCE PETITION FILED BY ANUSHKA BEFORE THE

HON'BLE SUPREME COURT IS JUSTIFIED OR NOT?

The divorce petjtjon 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

ISSUE 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 stated: 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..
 9

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

[I] ADULTERY

According to HINDU MARRIAGE ACT. 1955

SECTION-13([) "Any marriage solemnized, whether before or after the commencement of this
Act, may, 0 11 a petition presented by either the husband or the wife, be dissolved by a decree of
divorce 0 11 the ,:round that the other party-
(i) has, after the so/em11izatio11 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 Varadraiulu v, Baby Amma1 held that, " In divorce cases
courts ca11 even act upon uncorroborated testimony and grant relief ro 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 disbelieved2.
___________________________
1 AIR 1965 Mad. 29
2 Sanjukta Padhan vs L.ucrninarayan Padhan And Anr.; AIR 1991 Ori 39
 10

Aligning our statement with the case of Sumitran Rober v. Sophia3 the court held that rhe
srandard of proof required in a criminal case cmmol 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 dispwed !hat the allegations as 10 rhe
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 li.ving 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 moraJly 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 mentalJy 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)
 11
Inter-State cadre transfer of Ms Harshika Singh, IAS JH 12 from Jharkhand
cadre to MP cadre to grounds of her marriage5 clearly 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
i11terve111io11 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-D; Da1ed:- 25/08/2014

6. AIR 1985 SC 935.
7. Extract from:- Law Commission of India Report No.-217: MARCH 2009
 12
8
Similarly, the Punjab And Haryana High Court in Krishna vs. Som Nath 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 establlished 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.

11. 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
 13

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, botb 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
1101 be treated as illegitimate are that the parents must have lived under one roof and co-habited
together in the society and it must nor be a "walk in and walk out" re/ario11ship. Therefore, the
court also granted the right to property to a child born our 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 Viole11ce 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 order of maintenance under Section 125 of the Code of Criminal Procedure, 1973 (2 0f
1974) or any other law for the time being in force.

10. Tulsa v. Durghatiya [(2008) 4 sec 520]

 14

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

According to Sectio11 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 ;

(b) "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, sexual 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

 15

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-(]) 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)
 16

PRAYERS

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:

I) 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.

Respectfully
Submitted

Counsel for the respondents

 17

BIBLIOGRAPHY

BOOKS

1 .CONSTITUTIONAL LAW OF INDIA Thirteenth edition 20/8 by Prof. G.S. Pande

2. FAMILY LAW Fourth edition 2015 by Prof. Kusum

3. HINDU LAW AND USAGE Sixteenth edition 2008 by Mayne's

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

5. HINDU LAW First edition 2015 by Dr. Samiya Tabasum

6. HINDU LAW Fourth editio11 20/4 by Dr. Basant K. Shanna

7. HINDU LAW Ni11th edition 2013 by U.P.D. Kesari

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

9. LAW OF MARRIAGE AND DIVORCE Sixth edition 2011 by Paras Diwan

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

11. MULLA HINDU LAW 2 JS' Edition Reprint 2012 by Satyajeet A Desai

12. THE CONSTITUTION LAW OF INDIA First edition 2009 by Narender Kuma