FAMILY LAW

IN THE HON’BLE SUPREME COURT OF INDIA

NEW DELHI

Case Concerning
The Hindu Marriage Act, 1955

Appellant

Vs.

Respondent

ON SUBMISSION TO THE HON’BLE SUPREME COURT OF INDIA

MEMORIAL ON BEHALF OF THE RESPONDENT
ROHIT DONGRE

SUBMITTED BY:
ROLL NO- 18GSOL1020084
BALLB(HONS)

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TABLE OF CONTENTS

INDEX OF AUTHORITIES……………………………………………………………........................
 Judicial Decisions…………………………………………………………………….…03
 Statutes and other authorities……………………………………………….…………03
 Books……………………………………………………………………………….……03
 Dictionaries…………………………………………………………………….………..03
 Websites…………………………………………………………………………….…...03
ABBREVIATIONS…...………………………………………………………….……………....…04
STATEMENT OF FACTS..................................................................................................................05
QUESTIONS PRESENTED................................................................................................................06
SUMMARY OF ARGUMENTS...........................................................................................................07
__________________________________________________________________
___________________

WRITTEN SUBMISSION………………………………………………………….…...……..08-12
______________________________________________________________________________

PRAYER FOR RELIEF………………………………………………………………………13

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INDEX OF AUTHORITIES

JUDICIAL DECISIONS

Foreign judgements
1. Henderson v. Henderson, 1994 (1) A.C 49

National Judgments

1. Ganta Nagamani v. Ganta Lakshman Rao, 1992(1) H.L.R. 626 at p. 632 (A.P.).

STATUTORY AND OTHER AUTHORITIES

1. The Hindu Marriaget Act, 1955.

BOOKS
1. MODERN HINDU LAW, PARAS DIWAN

2. SHRIVASTAVA’S BOOK ON HINDU LAW

DICTIONARIES
1. BLACK’S LAW DICTIONARY (West Group Publishers, 2002)
2. THE LAW LEXICON, BAKSHI, P. M., Ashoka Law House, New Delhi.

WEBSITES
1. www.manupatra.com
2. www.indiankanoon.com

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LIST OF ABBREVIATIONS

A.C…………………………………………………………………………………...Appeal Cases
AIR……………………………………………………………………………..All India Reporter
Ed...…………………………………………………………………………………………Edition
LJ……………………………………………………………………………………...Law Journal
LR……………………………………………………………………………...………Law Report
No………………………………………………………………………………………….Number
Ors…………………………………………………………………………………………..Others
P……………………………………………………………………………………..Page Number
QB………………………………………………………………………………..….Queens Bench
SC………………………………………………………………………………….Supreme Court
v……………………………………………………………………………………………..versus
Vol…………………………………………………………………………………………Volume
www……………………………………………………………………………...world wide web

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STATEMENT OF FACTS

1. The petitioner and respondent are husband and wife. They were married in
February, 1978 as per Hindu rituals and ceremonies. Both the spouses are highly
qualified. The petitioner is M.SC, PH.D and the respondent is M.A in social
worker.

2. Before their marriage took place, the father of the respondent wrote a letter to
father of the petitioner stating that his daughter had a bad attack of sun stroke
which affected her mental condition for a while. This fact could be rechecked from
Broadmoor mental hospital by Dr Aurica Bhattacharya and that he should discuss
matter with petitioner. But the petitioner or his father did not check it further and
marriage was solemnized. Till March, 1981 two daughters were born out of this
wedlock

3. In January 1983, the respondent went to Pune to attend the marriage of

petitioner's brother. The petitioner took the respondent to Dr Joseph Williams, a
Psychiatrist, for getting her examined but Dr Joseph Williams wanted some time
more. The petitioner left her there and came back Delhi on March 11, 1983 alone.
The respondent felt that her husband wanted to build up a case that she was of
unsound mind and she was being lured to walk into the trap. She did not visited Dr
Joseph Williams again and two days later, the respondent followed the petitioner
but she went straightway to her parent's house in Delhi

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4. On March 15, the petitioner wrote letter to the police asking for protection as
feared danger on his life from the respondent parents and relatives. On March 19th
march 1983 the respondent saw the petitioner at his house and meeting was held to
resolve the matter amicably. After a brief meeting she left matrimonial home for
the reasons best known to her. On March 23, 1983, the respondent wrote to the
petitioner complaining against his conduct and asking for money for the
maintenance of her and their daughters. The respondent also wrote to the secretary
of the ministry where the petitioner was serving that he had deserted her and
treated her with extreme cruelty and asking for maintenance for her and her
daughters. But nothing came out of that. A third daughter was born on august 19,
1983. The petitioner filed a petition on February 1984 for annulment for his
marriage with the respondent or alternatively for divorce or the judicial separation.
The annulment was sought on the ground of fraud, divorce on the ground of
unsoundness of mind and judicial separation on the ground of cruelty. Argue in
favour of Petitioner and Respondent in the present petition before the District court

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ISSUES

 Whether the respondent commits any fraud with the petitioner as

alleged?

 Whether the petitioner is entitled to get decree of judicial separation on

the ground of cruelty?

 Whether the petitioner for divorce filed by petitioner ought to be

dismissed?

 Whether the respondent is entitled to get maintenance?

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SUMMARY OF ARGUMENTS

 Whether the respondent commits any fraud with the petitioner as alleged?

The respondent was not of unsound mind, as she had high educational
qualifications, and was serving in central government. The marriage was of
free consent.

 Whether the petitioner is entitled to get decree of judicial separation on the

ground of cruelty?

The appellant can not claim, judicial separation,because there was condonation
of cruelty from husband’side, and therefore the divorce suit is not maintainable.

 Whether the petitioner for divorce filed by petitioner ought to be

dismissed?

 Whether the respondent is entitled to get maintenance?

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WRITTEN SUBMISSIONS

CONTENTION NO-1

 Whether the respondent was of unsound mind and the consent of the
marriage was obtain by fraud?

UNSOUND MIND DEFINITION-

A person of unsound mind is an adult who from infirmity of mind is incapable of

managing himself or Herself in daily affairs. The term, therefore, includes insane
persons.

Section 12 of Indian Contract Act, 1872 tells us what is a sound mind for entering
into a contract. It lays down that, "A person is said to be of sound mind for the
purpose of making a contract if, at the time when he makes it he is capable of
understanding it and of forming a rational judgement as to its effects upon his
interest."

At the time of consent of the marriage, the respondent was of sound mind, and
was always of sound mind, even the doctors of Yervada Mental Hospital said that
the respondent was of sound mind, so therefore we can conclude from the
inferences respondent was of sound mind, and had no mental problems there on.

The respondent was of sound mind, as when she was treated for sunstroke, at
Yeravada Mental Hospital, the doctors said she was of sound mind, and therefore
she was cured of sunstroke and malaria, and sunstroke is not a communicable
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disease, and it is curable in India, even malaria is not a communicable disease and
has no side effects on brain and heart.

FRAUD

Fraud consists of some deceitful practice or willful device, resorted to with intent
to deprive another of his right, or in some manner to do him an injury. As
distinguished from negligence, it is always positive, intentional.

Fraud in this case means obtaining consent, by giving some false or wrong
information which never existed to other party for some positive good. The
respondent father and the respondent had not committed fraud, and moreover the
consent was obtained by free, where the appellant and his father have considered in
that respect

The consent of the marriage was not obtained by fraud, as respondent’s father had
sent two letters to appellant’s father, in first one it was stated, that the respondent
had a bad attack of sunstroke which affected her mental condition for sometime . in
second letter it was stated which was send after two day gap, in which cerebral
malaria was mentioned as an additional reason for mental affection , it also stated
that she was cured at the Yeravada Mental Hosptital, and she is cured now, the
appellant agreed and gave a positive consent to that. The father of the respondent
asked appellant’s father, if necessary to discuss the matter with the doctors of the
hospital or Dr. P.L Deshmukh.

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CONTENTION NO-2

 Whether the appellant can claim judicial separation?

Judicial Separation?

Judicial Separation
Section 10, Of The Hindu Marriage Act, 1955 tell us that

(1) Either party to a marriage, whether solemnized before or after the

commencement of this Act, may present a petition praying for a decree for judicial
separation on any of the grounds specified in sub-section (1) of Section 13 , and in
the case of a wife also on any of the grounds specified in sub section (2) thereof, as
grounds on which a petition for divorce might have been presented.

(2) Where a decree for judicial separation has been passed, it shall no longer be
obligatory for the petitioner to cohabit with the respondent, but the court may, on
the application by petition of either party and on being satisfied of the truth of the
statement made in such petition, rescind the decree if it considers it just and
reasonable to do so.

Now considering, Section 13 Of, The Hindu Marriage Act, 1955

1) Any marriage solemnized, 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 solemnization of the marriage had voluntary sexual intercourse
with any person other than his or her spouse; or

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(i)(a) Has, after the solemnization 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; or

(ii) Has ceased to be a Hindu by conversion to another religion

Now focusing on the sub section (1) (b)

There should be separation of 2 years, before filing of the suit, as they last resided
together on 27.2.1961, and the suit was filed on 19.2.1962, which is accurately one
year, therefore the appellant was is not able to claim judicial separation, as they
had a separation of 1 year, and the condition says that, they should not live for 2
years before the preceding of the suit, so in this case, the appellant can not claim
judicial separation.

(A)Condonation of cruelty from the appellant

Condonation-
It is a well settled proposition of the law that the term “condonation”
Used in this connection, consist of two parts. Firstly what it amounts is that there
should be forgiveness1 on part of the other party who has been at a wrong by
sexual lapse and the second aspect of the matter is that after such forgiveness there
should be reinstatement of the parties together in their marital life.

1
Shrivastava’s book on Hindu Law
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The view expressed in Henderson v. Henderson2, with regard to implications of

condonation is as follows
“ condonation involves forgiveness confirmed or made effective by reinstatement.
The essence of the matter is taking the case where it is , the wife who has been
guilty of matrimonial offence that the husband with knowledge of the wife’s
offence should confirm his forgiveness by reinstating her as his wife.
A similar view has been expressed in Ganta Nagamani v. Ganta Lakshman Rao3

As the respondent was guilty of cruelty, there was condonation of cruelty from the
appellant, as even after facing cruelty from the respondent , both the respondent
and the appellant had normal sexual life, i.e cohabitation. Even on the last date,
27.2.1961, when they lived together for the last time, the respondent was 3 months
preganant, so the main thing and the main proof of condonation, is sexual
intercourse, so in this regard, there was condonation from the appellant.
Further from this we can infer that, as there was cruelty from the respondent, but
there was condonation from cruelty from the appellant, so we can conclude that the
divorce suit was not maintainable.

2
1994 (1) A.C 49
3
1992(1) H.L.R. 626 at p. 632 (A.P.).
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PRAYER

Wherefore, in the light of facts of the case, issues raised, arguments advanced and authorities
cited, this Court may be pleased to adjudge and declare that:

a) As there was no fraud on part of the respondent, and it is therwith proved

that respondent was not of unsound mind, There was condonation of
cruelty form the appellant, moreover it does not amount to judicial
separation

Hence it must set aside the earlier decision or pass any other further order(s), as this Hon'ble
Court may deem fit and proper under the circumstances of the case, in the interest of equity,
justice and good conscience.

All of which is respectfully submitted.

Place: New Delhi Rohit Dongre

Date: 5th April, 2014 (On behalf of the Respondent)

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