ANIL (APPELLANT)
V.
RASHMI (RESPONDENT)
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ABBREVIATIONS.......................................................................................................... 2
INDEX OF AUTHORITIES............................................................................................... 3
Case List.................................................................................................................... 3
Legislation used........................................................................................................... 3
Books Referred............................................................................................................ 3
Website used............................................................................................................... 4
STATEMENT OF JURISDICTION...................................................................................... 5
STATEMENT OF FACTS.................................................................................................. 6
ISSUES RAISED............................................................................................................ 7
SUMMARY OF ARGUMENTS.......................................................................................... 8
ARGUMENT ADVANCED............................................................................................. 10
PRAYER..................................................................................................................... 16
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ABBREVIATIONS
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INDEX OF AUTHORITIES
Case List
Romesh Chander vs. Savitri, AIR 1995, SC 851
N.K. Ghosh v. Mita Ghosh, AIR 1986 Cal
Russel v. Russel, 1897 AC 395
Madan Mohan Kohli v. Sarla Kohli, AIR 1967 Punjab, 397
Legislation used
The Hindu Marriage Act, 1955
The Guardians and Ward Act, 1890
The Indian Contract Act, 1872
The Hindu Minority and Guardianship Act, 1956
The Contempt of Courts Act, 1971
The Code of Civil Procedures, 1908
Books Referred
Dr. Paras Diwan, Modern Hindu Law, 22nd Edition, 2013.
Memorial on behalf of the Respondent
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Website used
www.manupatrafast.com
www.scconline.com
www.indiankanoon.com
www.legallyindia.com
www.legal-dictionary.thefreedictionary.com
www.legalserviceindia.com
www.lawmirror.com
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STATEMENT OF JURISDICTION
The Respondent humbly submits this memorandum in response to the petition filed before this
Honble Court. The petition invokes its appellate jurisdiction under section 47 of the Guardians
and Ward Act, 1890. It sets forth the facts and the laws on which the claims are based.
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STATEMENT OF FACTS
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ISSUES RAISED
1. Whether the Appellant Mr. Anil has the locus standi to file an appeal in the High Court?
2. Will remarriage of the Respondent amount to termination of guardianship?
3. Whether the decision of the subordinate court of dismissing the petition for Restitution of
Conjugal Rights was justified?
4. Whether the custody of the child to his mother will be detrimental to his physical and mental
welfare? And whether the financial condition of the mother shall be taken into consideration
while giving away the custody of the child?
5. Whether the act of the husband (accusations of unchastity) amounted to cruelty towards his
wife?
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SUMMARY OF ARGUMENTS
I.
The Appellant Mr. Anil does not have the locus standi to file an appeal in the
High Court.
The appellant has made a default in his previous petition for restitution of conjugal rights for
which an ex parte decree was passed against the appellant resulting into contempt of court, so
the appellant has extinguished his right to appeal before the High Court.
II.
The remarriage of the respondent does not amount to termination of guardianship. Firstly, the
deposition relating remarriage of the respondent is not at all valid as a deposition is more or less
of an agreement and the consent of both parties are required. As the appellant failed to appear
before the court and considering the irregularity of the deposition, the question of termination of
guardianship is invalid. Secondly, the minor child was living with the respondent since his birth
and it should be taken into consideration for the guardianship of the minor child, where the
welfare of the child should be the paramount consideration.
III.
The decision of the subordinate court of dismissing the petition for Restitution of
conjugal rights was justified.
The decision of the subordinate court of dismissing the petition for restitution of conjugal rights
is justified. The respondent was living separately just after three months of the marriage and both
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the parties had parted their ways which makes it clear that there was no cohabitation between the
parties. So the question of filing the petition for restitution of conjugal rights would not arise. On
the other hand it is established that the behavior of the husband has been cruel and torturesome
towards the respondent and she has a reasonable excuse to live apart from the appellant and the
dismissal of the petition filed by the appellant for the restitution of conjugal rights is admissible.
IV.
The custody of the child to his mother will not be detrimental to his physical and
mental welfare and whether the financial condition of the mother shall be taken
into consideration while giving away the custody of the child.
Firstly, the custody of the child to his mother will not be detrimental to his physical and mental
welfare as considering the interview of respondents minor son Rahul the Udalguri Family Court
held that it would be ideal for the minor sons welfare to stay with his mother as Section 13(1) in
The Hindu Minority and Guardianship Act, 1956 states that In the appointment or declaration of
any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the
paramount consideration.
V. Whether the act of the husband (accusations of unchastity) actually amounted to cruelty
towards his wife?
The act of the husband amounted to cruelty. The appellant criticized, belittled and humiliated the
respondent emotionally causing fear and loss of her self-esteem. It also eroded the credibility of
the appellant because of the false allegations of unchastity questioning the character of the
respondent.
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ARGUMENT ADVANCED
I.
The Appellant Mr. Anil does not have the locus standi to file an appeal in the
High Court.
1. Since the Appellant could not comply with the court procedures. So it would amount
to contempt of court in an indirect or constructive manner for which an ex parte
decree was passed.
Civil contempt of Court has been defined under section 2(b) of the Contempt of Court
Act of 1971 as willful disobedience to any judgment, decree, discretion, order, writ or
other process of court or willful breach of an undertaking given to a court.
Ss the definition above ascertains that the willful absence of the Appellant from the
court procedures without any reasonable ground would amount to disobedient, as his
presence was pertinent so as to bring upon his grievances before the court. So that the
court to hear both the sides and there after come to a conclusion.
But by not complying with court procedures, he indeed wasted the precious time of
court which makes his petition appeared to be vexatious.
2. Further the absence of the appellant from the trial court without reasonable cause
while the proceedings of his petition for restitution of conjugal rights vividly shows
how casual is the appellant toward such a crucial manner.
So the appellant has extinguished his right to appeal on account of the above reasons.
II.
No, the remarriage of the respondent will not amount to termination of guardianship.
Memorial on behalf of the Respondent
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1. At the first place, the remarriage of the Respondent cannot obscure the fact that the
Respondent is the natural guardian of the child, since she is his biological mother and
would also continue to be his guardian until she is death.
Section 4(c) of the Hindu minority and guardianship act, 1956 reads Natural guardian means any of the guardians mentioned in section 6(a), which reads the natural guardian of a Hindu minor in case of a boy is his father, and after him, the
mother; provided that the custody of a minor who has not completed the age of 5 years
shall ordinarily be with the mother.
Section 4(c) when read along with section 6(a) of the hindu guardianship act, 1956,
would reveal how biased and partial is the statute which encourages paternity irrespective
of taking into account the welfare of the child.
2. The minor child was living with the respondent since his birth and it should be taken into
consideration for the guardianship of the minor child to the respondent, as the child has
build an emotional bond with his mother than his father. So the separation of the child
with the respondent would affect the mental condition of the minor child, where the
welfare of the child should be the paramount consideration.
3. The deposition with regard to her marriage which appears to be an agreement is not valid.
Since the deposition is an oath, a promise to certain fact and in context to this case the
Respondent promise to abstain from remarry.
But even if the deposition is considered as an agreement, it would be void in nature.
Section 26 of the Indian Contract Act, 1872, reads
Every agreement in restraint of the marriage of any person, other than a minor, is void
Moreover it lacks the very essence of an agreement that the promise has to be made from
both the sides. So the agreement does not have a binding effect as the Appellant was
absent.
4. The remarriage of the respondent does not violate any law. It is mentioned in Section 15
of the Hindu Marriage Act 1955 that
when a marriage has been dissolved by a decree of divorce and either there is no right of
appeal against the decree or, there is such a right of appeal, the time for appealing has
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expired without an appeal having been presented, or an appeal has been presented but has
been dismissed, it shall be lawful for either party to the marriage to marry again.
Moreover, remarriage of the Respondent does not seem to hinder her role as a mother or
guardian, so her position as a guardian is undisputable. Neither would it affect the
upbringing of the child. Rather it would make the family stable, and rekindle the loss
happiness due to separation of the Appellant and the Respondent.
III.
The decision of the subordinate court dismissing the petition for restitution of
conjugal right was justified.
1. Marriage implies consortium i.e., the husband and wife are entitle to each others
company and comfort cause of action arises when one party withdraws from the society
of the other. Thus, if it is established that the behavior of the husband has been cruel and
torturesome towards wife then the wife has reasonable excuse for her to live apart from
the husband and the petition by the husband for the restitution of conjugal rights is liable
2.
to be dismissed.
In the case Romesh Chander vs. Savitri1, Supreme Court held that When marriage is
dead, emotionally and practically, and there is no chance of its being retrieved,
continuance of it would be cruelty.
Furthermore the court in their decision have held that the desertion by the petitioner for a
period of not less than 2 (two) years immediately preceding the application would serve
to be valid ground for separate living disentitling the others spouse to a decree for
restitution of conjugal rights. However, in the instance case the petitioner had defaulted in
complying with the decree of court, so the petition was rightfully dismissed.
3. From the fact it is evident that just after three months of the marriage the couple had
separated which makes it clear that there was no cohabitation between the parties. So the
question of filing petition for restitution of conjugal rights would not arise.
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IV.
The custody of the child to his mother will not be detrimental to his physical and
mental welfare and the financial condition of the mother shall not be taken into
and future.
The Act of the husband (Accusation of unchasitity) amounted to cruelty towards
her wife.
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Yes, the act of the husband of accusation of unchastity upon his wife amounted to cruelty
towards her.
1. In the instant case, it is apparent that since the inception of the marriage there was
misunderstanding between the Respondent and the Appellant. The misunderstanding had
shaped into such an ugly face that the couple had started living separately just after 3
months of their marriage. And upon that, the allegation of unchastity on his wife has
totally degraded the relationship of trust that is supposed to exist between a husband and
wife.
In this context, BERTRAND RUSSEL has rightly said thatI believe the marriage to be best and most important relation that can exist between two human
beings. The essence of a good marriage is respect for each others personality combined with
that deep intimacy, physical, mental and spiritual which makes serious love between men and
women most fructifying of all human experiences.
Again in the case of Russel v. Russel2, it has defined cruelty as a harsh conduct and of such
intensity and persistence of which would make it impossible for the spouse to operate the
marriage and live together without agony
The statement above is testament to the fact that there is no room for accusation of unchastity or
distrust among the spouses in any manner within the institution of marriage. And making such
statement would amount to cruelty and it would be impossible to re-instill that lost faith and
trust, resulting in dissolution of the marriage.
2 1897 AC 395
Memorial on behalf of the Respondent
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2. Further section 13(1) (i a) of the Hindu Marriage Act, 1955 states that
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 on the
ground that the other party-has after, the solemnization of the marriage, treated the
petitioner with cruelty.
The above mentioned provision of law covers the false allegations of unchastity under the ambit
of cruelty, which stands a ground for dissolution of marriage. The Delhi High Court has held
that, False, baseless, scandalous and malicious allegations made in written statement by
husband has the effect of causing deleterious effect on the mind of the wife and is the worst form
of cruelty which is sufficient to grant decree of divorce to wife.
In the cases, N.K. Ghosh v. Mita Ghosh3 and Madan Mohan Kohli v. Sarla Kohli, AIR 1967
Punjab, 397, the High Court of Calcutta and High Court of Punjab have held false accusation of
unchastity by one spouse against the other as mental cruelty of highest order.
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PRAYER
In light of the issues raised, arguments advanced and authorities cited, the counsel for
the Respondent humbly prays that the Honble Court be pleased to adjudge, hold and declare:
1. That, the appeal petition filed by the appellant is not maintainable in the court of law.
2. That, the remarriage of the respondent will not affect the upbringing of the child
3. That, the custody of the child should stay with the respondent itself.
And pass any order that this Honble court may deem fit in the interest of equity, justice and
good conscience.
And for this act of kindness, the counsel for the respondent shall duty bound forever pray.