TEAM CODE- 27

NOVICE MOOT COURT COMPETITION,2018

BEFORE THE HON’BLE CIVIL JUDGE OF DISTRICT COURT

CIVIL SUIT NO..............2018

IN THE MATTER OF

DR. MANSHER SINGH PETITIONER

VERSUS

SUNIDHI RESPONDENT
 NOVICE MOOT COURT COMPETITION 2018

TABLE OF CONTENTS

LIST OFABBREVIATIONS II

INDEX OF AUTHORITIES III

 TABLE OF CASES III

 STATUTES IV
 BOOKS V
 WEBSITES V

STATEMENT OF JURISDICTION VI

STATEMENTS OF FACTS VII

STATEMENT OF ISSUES VIII

SUMMARY OF ARGUEMENTS IX

ARGUMENTS ADVANCED 1

 CONTENTION 1: THAT THE DIVORCE SHOULD BE GIVEN TO THE

PETITIONER 1-3
 CONTENTION 2: WHETHER THE CUSTODY OF THE CHILD SHOULD BE GIVEN
TO THE PETITIONER 4-5

PRAYER X

MEMORIAL ON BEHALF OF THE PETITIONER

2
 NOVICE MOOT COURT COMPETITION 2018

LIST OF ABBREVIATIONS

Sr. No. ABBREVIATION FULLFORM

1. & And
2. AIR All India Report
3. ALL Allahabad
4. Cal Calcutta
5. CLR Commonwealth Law Reports
6. Cr.L.J Criminal Law Journal
7. Cr.P.C Criminal Procedure Code
8. IEA Indian Evidence Act
9. IPC Indian Penal Code
10. M.P Madhya Pradesh
11. Mad Madras
12. MLJ Madras Law Journal
13. Ors. Others
14. R/w Read with
15. SC Supreme Court
16. SCC Supreme Court Cases
17. SCJ Supreme Court Journal
18. T.N. Tamil Nadu
19. U.P. Uttar Pradesh
20. U/s Under section
21. V. Versus

MEMORIAL ON BEHALF OF THE PETITIONER

3
 NOVICE MOOT COURT COMPETITION 2018

INDEX OF AUTHORITIES

TABLE OF CASES

Sr. NO. CASE TITLE CITATION

1. Shobha Rani v. Madhukar Reddy AIR 1998 SC 121

2. Surbhi Agrawal v. Sanjay Agrawal AIR 2000 MP 139

3. Maya Devi v. Jagdish Prasad AIR 2007 SC 1426

4. Lachman v. Meena AIR 1964SC 40

5. Savitri Pandey v. Prem Chandra Pandey AIR 2002 SC 59

6. N. Nirmala v. Nelson Jayakumar I (1999) DMC 737, (1998) IIIMLJ 619

7. Mukesh Kumar v. Kamini AIR 1984 Delhi 368,1981 RLR 55

STATUTES

1. The Hindu Marriage Act, 1955 (25 of 1955)

2. The Hindu Minority &Guardianship Act, 1956

MEMORIAL ON BEHALF OF THE PETITIONER

4
 NOVICE MOOT COURT COMPETITION 2018

BOOKS

1. Justice .Kumud Desai’s, ‘Indian Law of Marriage & Divorce ‘ 6th Ed., LexisNexis

2. Dr. Paras diwan ‘s Law of ‘ Marriage and Divorce ‘6th Ed., Universal

3. R. Chakraborty’s law Relating to ‘Guardians & Wards’ 1st Ed., orient

4. Paras Diwan’s ‘Law of Adoption Minorty Guardianship & Custody’ 4th Ed., Universa

WEBSITES

1. Blog.scconline.com

2. www.ipleaders.in

3. www.legallyindia.com

4. www.legalservicesindia.com

5. www.livelaw.in

6. www.manupatra.com

7. www.scconline.com

MEMORIAL ON BEHALF OF THE PETITIONER

5
 NOVICE MOOT COURT COMPETITION 2018

STATEMENT OF JURISDICTION

The Petitioner has approached the Hon’ble District Court under the Section 19 of Hindu
Marriage Act,1955.

MEMORIAL ON BEHALF OF THE PETITIONER

6
 NOVICE MOOT COURT COMPETITION 2018

STATEMENT OF FACTS

1 .Dr. Mansher Singh a resident of Mohali and a junior resident at AIIMS, New Delhi married
Sunidhi in February 2012 according to Sikh rites.

2. After getting a fellowship for his post doctoral studies Dr. Mansher Singh shifted to Mumbai
alone and refused to take Sunidhi along with him because his parents were alone at home.
Sunidhi filed a petition for restitution of conjugal rights.

3. After arranging for accommodation Mansher took Sunidhi and his family to Mumbai in
December 2013.

4. They were blessed with a baby girl. Baby was mostly taken care by grandmother and Sunidhi
used to not take good care of the child. She was mostly busy on phone with Balveer. After
celebrating her first birthday Sunidhi came back to Punjab without informing Mansher.

5. Sunidhi didn't respond to phone calls by Mansher instead she sent him a message sharing her
bank details and demanded 20,000 rupees monthly. Mansheer tried to convince her but no
solution worked out. Mansheer sent him 10,000 rupees monthly for three months.

6. In August 2018 Dr Mansheer went to meet Sunidhi and his daughter. He tried to mix with
child who was now 3.5 years old and was with a untidy maid. Sunidhi returned home with
Balveer, seeing this Mansheer felt disturbed.

7. So the counsel has approached the Hon'ble District Court of Mohali for divorce and for
custody of the Child.

MEMORIAL ON BEHALF OF THE PETITIONER

7
 NOVICE MOOT COURT COMPETITION 2018

STATEMENT OF ISSUES

1: WHETHER THE DIVORCE SHOULD BE GIVEN TO THE PETITIONER OR NOT?

2. WHETHER THE CUSTODY OF THE CHILD SHOULD BE GIVEN TO THE

PETITIONER OR NOT?

MEMORIAL ON BEHALF OF THE PETITIONER

8
 NOVICE MOOT COURT COMPETITION 2018

SUMMARY OF ARGUMENTS

CONTENTION 1: THAT THE PETITIONER SHOULD BE GIVEN DIVORCE OR NOT

The petitioner has been treated with mental cruelty since he was forced to live without his child
and his wife for a period of approximetly two and a half years cause the respondent was careless
enough to leave the house of her husband without even informing him and and when he came to
meet her and take her back with him she did not agree instead they had heated arguement and
after that she didnot took his calls intead sent him a message sharing her bank details and asking
rs.20000 for maintenance of the child.

CONTENTION 2: THAT THE PETITIONER SHOULD BE GIVEN THE CUSTODY OF

THE CHILD OR NOT.

The petitioner here being in a financially stable position than the respondent and with a famiy to
take good care of the child is more capable to have the custody of child. Moreover the
respondent was not taking care of the child as she was always busy on the phone. petitioners
mother used to take care of the child when she was an infant since the mother was careless. even
when the petitioner made a visit she was being taken care by an untidy maid while the
respondent was out. The respondent being not educationally qualified enough will not be able to
take care of the childs higher education and hence giving the paramount consideration to the
welfare of the child the petitioner be given the custody.

MEMORIAL ON BEHALF OF THE PETITIONER

9
 NOVICE MOOT COURT COMPETITION 2018

ARGUEMENTS ADVANCED

CONTENTION 1: THAT THE PLANTIFF SHOULD BE GRANTED DIVORCE

The Plaintiff has approached the Hon’ble District Court of Mohali for giving Divorce under Section
13(1)(IA) ,1(IB) AND (1A)(I) OF HINDU MARRIAGE ACT, 1955.

SECTION 13(1)(ia) HINDU MARRIAGE ACT , 1955

(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-

(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty;

Intention to harm the spouse is not essential ingredient of cruelty. “The relief to the party cannot
be denied on the ground that there has been no deliberate or wilful ill-treatment...”The Apex
Court held in Shobha Rani v. Madhukar Reddy1.

Similarly from the facts of the case it can be inferred that despite of heavy patients intake at
AIIMS Delhi Mansher attended to Sunidhi’s call but she instead of taking care of his parents
used to spend long hours with Balveer which in turn shows her cruel behaviour.

The M.P. High Court , in Surbhi Agrawal v. Sanjay Agrawal,2 too while granting divorce in
favour of the husband on ground of wife’s cruelty held that intention to be cruel is immaterial.

“If bitter waters are flowing, it is not necessary to enquire from which source they spring”, the
court remarked.

In light of the facts of the case, Sunidhi took away the child from Mansher and kept her away for
approximately 2 years which indicates the cruel treatment on the side of Mansher.

1
AIR 1998 SC 121 at 127(1998) 1 SCC 105(1988) DMC12.
2
AIR 2000 MP 139
MEMORIAL ON BEHALF OF THE PETITIONER
10
 NOVICE MOOT COURT COMPETITION 2018

In the case of Maya Devi v. Jagdish Prasad3, it was held that Cruelty need not be physical .If
from the conduct of the spouse it is established or an inference can be legitimately drawn that the
treatment of the spouse is such that it causes apprehension in the mind of other spouse, about his
or her mental welfare then his conduct amounts to cruelty.

It can be inferred from facts of the case that Sunidhi was negligent in taking care of the baby girl
and didn’t perform her duties well as mother and as a wife.

She left her home without informing Mansher and didn’t respond to his calls which caused
mental agony to him.

SECTION 13 (ib) of HINDU MARRIAGE ACT, 1955. (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—

(ib) Has deserted the petitioner for a continuous period of not less than two years immediately
preceding the presentation of the petition

In this sub-section, the expression “desertion” means the desertion of the petitioner by the other
party to the marriage without reasonable cause and without the consent or against the wish of
such party, and includes the wilful neglect of the petitioner by the other party to the marriage,
and its grammatical variations and cognate expressions shall be construed accordingly.

The Supreme Court in Lachman v. Meena4 interpreted that desertion in its very essence means
the intentional permanent abandonment by one spouse of the other without that other’s consent
and without reasonable or just cause or justification. It was also held to include wilful neglect of
one of the parties towards the other in a marriage. This therefore means that one of the parties
who intentionally ignores and wilfully does not take care of the other party or neglects to fulfil
the needs of the other party being fully aware of the fact that such neglect would prove to be
negative for that other party is termed to have committed desertion.

In the proposition it is given that

3
AIR 2007 SC 1426
4
AIR 1964SC 40
MEMORIAL ON BEHALF OF THE PETITIONER
11
 NOVICE MOOT COURT COMPETITION 2018

1.The mother left the matrimonial home for approximately more than 2 year without

A. Informing the husband and without any reasonable cause.

B. Without the consent of the other spouse

C. And didn’t try to contact him.

These facts clearly indicate Desertion as a ground to grant divorce to the plaintiff.

Apex Court in Savitri Pandey v. Prem Chandra Pandey5 “Desertion for the purpose of seeking
divorce under the Act means the intentional permanent forsaking and abandonment of one
spouse by the other without that the other’s consent and without reasonable cause. In other
words, it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal
from a place, but from state of things ...Desertion is not a single act complete in itself, it is a
continuous couse of conduct o be determined under the facts and circumstances of each case. ’’

5
(2002) 2 SCC 73:AIR 2002 SC 59
MEMORIAL ON BEHALF OF THE PETITIONER
12
 NOVICE MOOT COURT COMPETITION 2018

CONTENTION 2: THAT THE CUSTODY OF THE CHILD SHOULD BE GRANTED

TO THE PLANTIFF

At the very outset, it is most humbly submitted that as per Section 13 welfare of minor is to be of
paramount consideration of Hindu Minority and Guardianship Act,1956 .

(1) In the appointment of declaration of any person as guardian of a Hindu minor by a court, the
welfare of the minor shall be the paramount consideration.

(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of
any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or
her guardianship will not be for the welfare of the minor

In the case of N. Nirmala v. Nelson Jayakumar on 19 August, 19986 laid down in the
judgement that “In deciding the question as to the custody or upbringing of a minor, the Court
must regard the minor's "welfare" as the first and paramount consideration and not the legal right
of any particular party. In making order appointing a guardian for the person of minor, the tests
ought to be - what order under the circumstances of the case would be best for securing the
welfare and happiness of the minor? With whom will the minor be happy? Who is most likely to
contribute to the well-being of the minor and look after her health and comfort? Who is likely to
bring up and educate the minor in the manner required to develop the entire personality worthy
of living, keeping the interest, well-being and happiness of the minor in view. The Court must
also give due weight to the possible effects of a change in custody, on the minor's future
happiness and sense of security. What is "proper" custody depends upon the circumstances, and
in particular , upon the minor's position and prospects in life.”

In the lights of facts of proposition it is humbly submitted before the Hon’ble court that welfare
of girl is more in the hands of Mansher rather than Sunidhi . The same can be proved by the
following:

1. Mansher is more educated, qualified, intelligent and hardworking than Sunidhi being just
a matriculate. This justifies the fact that he can better provide good education to her child.

6
I (1999) DMC 737, (1998) IIIMLJ 619
MEMORIAL ON BEHALF OF THE PETITIONER
13
 NOVICE MOOT COURT COMPETITION 2018

2. Being a junior resident at AIIMS and pursuing his post doctoral studies Mansheer can
better provide financial support and comfortable living to the baby girl.
3. Also it is clear from facts that baby girl was mostly taken care by grandmother this thing
highlights the fact that Sunidhi was negligent in taking care of the child.
4. This clearly indicates that child will be more cared and look after if she lives with the
father at matrimonial home.

Section 26 in HINDU MARRIAGE ACT, 1955 runs that:

In any proceeding under this Act, the court may, from time to time, pass such interim orders and
make such provisions in the decree as it may deem just and proper with respect to the custody,
maintenance and education of minor children, consistently with their wishes, wherever possible,
and may, after the decree, upon application by petition for the purpose, make from time to time,
all such orders and provisions with respect to the custody, maintenance and education of such
children as might have been made by such decree or interim orders in case the proceeding for
obtaining such decree were still pending, and the court may also from time to time revoke,
suspend or vary any such orders and provisions previously made: 7[Provided that the application
with respect to the maintenance and education of the minor children, pending the proceeding for
obtaining such decree, shall, as far as possible, be disposed of within sixty days from the date of
service of notice on the respondent.

That welfare of child is of paramount consideration also well brought out by the decision of the
Delhi High Court in Mukesh Kumar v. Kamini Gupta8 where the court allowed the father to
have custody of four minor girls. In this case, the mother was living in a women’s hostel and the
children , all school going , were being looked after well by their paternal grandparents and the
father . The grandparents were in a position to afford the education of children in good schools.

The court held that it would be in the interest of the children that they remained in the father’s
custody.

7
Ins. By Act 49 of 2001,sec.9(w. E .f. 24-9-2001)
8
AIR 1984 Delhi 368,1981 RLR 55
MEMORIAL ON BEHALF OF THE PETITIONER
14
 NOVICE MOOT COURT COMPETITION 2018

PRAYER

Wherefore, in the light of the facts of the case, issues raised , authorities cited and arguments
advanced , the counsel for the petitioner humbly prays before this Hon’ble Court to kindly hold
and adjudge :

1. That the petitioner should be given divorce under section 13(1)(ia) and 13(1)(ib)

Of The Hindu Marriage Act,1955.

2. That the petitioner should be given custody of child under section 13(1) Welfare of minor to
be paramount consideration under The Hindu Minority and Guardianship, Act, 1956.

AND/OR

Pass any other order that it may deem fit in light of equity, justice , &

good conscience.

ALL OF WHICH IS MOST HUMBLY PRAYED FOR.

MEMORIAL ON BEHALF OF THE PETITIONER

15