Name: Poonam Bansal

Roll No. 33008

BEFORE THE HON’ABLE

FAMILY COURT OF BOMBAY

IN THE MATTER OF

Ananya ..................................................................................................................... Petitioner

VS.

Aarav ................................................................................................................... Respondent

BEFORE SUBMISSION TO THE HON’ABLE JUSTICE

OF THE

HON’ABLE FAMILY COURT OF MUMBAI

MEMORANDUM ON BEHALF OF THE PETITIONER

1
 TABLE OF CONTENTS [INDEX]

1. LIST OF ABBREVIATION

2. INDEX OF AUTHORITIES

3. STATEMENT OF JURISDICTION

4. STATEMENT OF FACTS

5. SECTIONS USED

6. ARGUMENTS ADVERSED-:

1) ISSUE 1-: Whether the grounds stated in the petition by the Petitioner are
sufficient enough to entitle her to obtain a decree of divorce by the court?

2) ISSUE 2-: Whether the petition is maintainable?

3) ISSUE 3-: Whether the Petitioner has any cause of action and locus-
standi to file and maintain the present petition?

7. PRAYER

2
 LIST OF ABBREVIATIONS

& And
AIR All India Reporter
Art. Articles
Anr Another
FIR First Information Report
HC High Court
i.e. That is
IEA Indian Evidence Act
IPC Indian Penal Code
PMR Post Mortem Report
PS Police Station
SC Supreme Court
SCC Supreme Court Cases

SCR Supreme Court Record

SLP Special Leave Petition
UOI Union of India
v. Versus

3
 INDEX OF AUTHORITIES

Legal Databases:

1 Manupatra
2 SCC Online
3 Westlaw
4 Indiankanoon

Statutes and Acts

1 The India Penal Code

2 The Code of Civil Procedure, 1908
3 The Hindu Marriage Act, 1955

4
 STATEMENT OF JURISDICTION

This appeal is brought before this Honorable Court in accordance with the statutory
provisions of the Hindu Marriage Act, 1955, and it falls under the jurisdiction of this
Court for the following reasons:

Subject Matter Jurisdiction: The subject matter of this appeal pertains to matrimonial
disputes and the dissolution of a marriage, which is expressly governed by the Hindu
Marriage Act, 1955. Therefore, this Court, being a competent civil court with jurisdiction
over matrimonial matters, has the authority to adjudicate upon this appeal.

Residence Jurisdiction: The petitioner, Ananya, and the respondent, Aarav, have
previously resided together within the territorial jurisdiction of this Court. The
matrimonial home was situated within this jurisdiction, and this Court is the appropriate
forum for adjudicating matters concerning their marriage.

Continued Jurisdiction: The petitioner, Ananya, currently resides within the jurisdiction
of this Honorable Court, and she initiated the appeal within the same jurisdiction.

Place of Marriage: The marriage between the petitioner and the respondent was
solemnized within the territorial limits of this jurisdiction.

Based on the foregoing reasons, it is respectfully submitted that this Honorable Court has
both the subject matter jurisdiction and territorial jurisdiction to entertain and adjudicate
upon the present appeal under Section 13 of the Hindu Marriage Act, 1955.

5
 STATEMENT OF FACTS

● The current appeal concerns a Petition filed by Ananya, the Petitioner,

under Section 13 of the Hindu Marriage Act, 1955, requesting that the
parties' marriage be dissolved by a court order.

● On April 1, 2015, the parties to the dispute signed a marital agreement.

According to the wife's claims, the parties' marriage was not
consummated. She was mistreated by her spouse, and they never shared
a bed. After 5 days, she returned to her parents'house.

● Despite five years of marriage to the Respondent's spouse, the situation

remained the same with no signs of improvement. According to her
testimony, the Respondent spouse would come home late at night,
inebriated, and physically, verbally, and emotionally assault her. He
would beat her up if he was inebriated.

● She made a concerted attempt to persuade and persuade him.. She also
found out that the spouse had a bad reputation. He had several
extramarital affairs with different women, was an alcoholic, and used to
drink and use drugs.

● The Respondent husband replaced to the contention in a contradictory

manner and stated that the Petitioner wife was given a bonafide
treatment during their stay together. He further stated that the Petitioner
wife was not interested in residing with the parents of the respondent and
kept convening him to move out of the house perhaps he was an
unemployed men and could not a fall to live separate and so the demand
was totally absurd and unacceptable to him.

● Thereafter the Petitioner wife moved out from the matrimonial home
without citing any reasonable and valid justification along with her
personal belonging including Stridhan. He consistently made efforts to
get her back to their matrimonial home but she refuse to return.

6
● Following that, he filed a plea for recovery of conjugal rights under
Section 9 of the Hindu Marriage Act, 1955. The court gladly granted his
request. The wife did not object to the petition, and shedid not return to
her marital residence. The petition's additional significant averments
were denied, and the petition was requestedto be dismissed with costs.

7
SECTION USED

❖ Grounds for divorce-

• SEC 13 (1)(i) - after the solemnisation of the marriage, had
voluntary sexual intercourse with any person other than hisor her
spouse;

• SEC 13 (1A)- that there has been no restitution of conjugalrights

as between the parties to the marriage for a period
of 22 [one year] or upwards after the passing of a decree for
restitution of conjugal rights in a proceeding to which they were
parties.

❖ SEC 23 (1) any of the grounds for granting relief exists and the
petitioner 47 [except in cases where the relief is sought by him on
the ground specified in sub-clause (a), sub-clause (b) or sub-clause
(c) of clause (ii) of section 5] is not in any way taking advantage of
his or her own wrong or disability for the purpose of such relief,
and

8
 ARGUMENTS ADVERSED
1. Whether the grounds stated in the petition by the Petitioner are sufficient
enough to entitle her to obtain a decree of divorce by the court?

• Now as per the facts of the case, the respondent physically

abuses the petitioner, he beats her in state of drunkenness. All of this
proves a physical cruelty, which is gross misconduct on part of
husband which creates a danger and threatening environment for any
reasonable person and it is not expected from any reasonable man to
live in the same, hence the ground of cruelty is satisfied which entitles
her to obtain decree ofdivorce

• In Shobha rani vs madhukar reddy the SC had observed that

the cruelty can either be physical or mental. In of shamar ghoshvs jaya
ghosh the SC defined mental cruelty were they stated that mental
cruelty is the state of mind of deep anguish and frustration of one
spouse’s mind caused by the conduct of other plus the ill conduct by
the husband, his refusal for sexual relationships, his mistreatment all
accumulated to cause mental cruelty. All these factors made the
petitioner to move to her matrimonial house fearing her mental and
physical health if stayed with the respondent.

• This was only made worse with the fact that the respondent washaving
an adulterous life. The respondent had several extra martial affairs
which is a ground for divorce under sec 13 sub-sec 1 clause I. it states
that, after the solemnization of the marriage, had voluntary sexual
intercourse with any person other than his or her spouse it so a ground
for divorce.

• In pushpa devi vs radhe shyam, the honorable HC of Rajasthan

had find that direct evidence of adultery is extremely rare and it
would be unreasonable to expect the same.

9
 • the petioner tried to adjust with this unjustified treatment by the
respondent for 5 long years which is more than enough period under
such circumstances. No reasonable person so expected to live in such
conditions and endure the same sufferings. In light of all this
circumstances that the cruel treatment by husband and adultery
committed by the husband, the petitioner has all rights and reasons to
obtain a decree of divorce.

2. Whether the petition is maintainable?

• The said court has jurisdiction under various provisions of the act.
The act has provision for the family court to hear proceeding for parties
for dissolution of marriage.

• Now according to Section 13 subsection a clause ii, if there has been

no restitution of conjugal rights for 1 year or more, the
divorce petition will be maintainable. As per the fact of our case,
the wife did not return to matrimonial house after the petition and
thus the requisite is satisfied.

• the treatment by husband is clear violation of section 13

sub-sec 1 clause ia of the Hindu marriage Act., also the
adulterous behavior by the respondent is also a ground for divorce as
per sec 13 sub-sec1 clause I of the act. Hence the petition is
maintainable and the Petitioner is fully entitled to obtain a decree of
divorce

3. Whether the Petitioner has any cause of action and locus-standi to file and
maintain the present petition?

Three main point

• Irreversible breakdown-: The parties have been living separately since

May 2020. This is sufficient evidence that the marriage is irreversibly
destroyed. A de facto divorce occurs when a marriage ends. In the
case of Durgamai vs Arundati Tripathi, the 71st Law Commission of
India shed some light on the breakdown of marriage. It was said that
after the husband and wife have been separated and have been living
apart for a sufficient period of time, it becomes hard to rupture the
marriage.

10
 The Honorable Supreme Court ruled that the parties in a relationship
had reached a point of no return, and that a viable settlement is
unlikely. It is said that getting a husband and wife back together after
5 to 10 years apart is tough.

• The responder was a guy of questionable reputation, it should

be noted. He was a drinker who abused his wife, and the petitioner had
also been the victim of domestic violence.

• So this man has a bad reputation and has had extramarital

relationships; all of these things have an impact on the
marriage's purity.

• As a result of all of these circumstances, the respondent party

in the marriage is accountable.
The fact that the petitioner refused to return to the matrimonial residence
does not prevent her from filing for divorce under section23 of the Hindu
marriage act. The supreme court decided in Dharmendra Kumar Vs Usha
Kumar that violation of restitution of conjugal rights did not amount to
misconduct. This judgement barred the petitioner from obtaining any
kind of redress.

11
 PRAYER

WHEREFORE IN THE light of the issues raised, arguments advanced and

authorities cited, it is prayed before the Hon’ble court to-
1. To pass the decree of divorce under section 13 of the Hindu Marriage
Act, 1955.
2. To declare that the contesting defendant has treated the petitioner with
cruelty and it is a ground for divorce.
3. To pass an order to pay sum Rs five lakhs as compensation for the
mental and physical agony caused to the petitioner due to the ill-
treatment by the respondent.

And pass any other order or relief that it deems fit in the interest of justice,
Equity and good conscience.

All of which is most humbly and respectfully submitted

District: Mumbai S/d

Date: PUBLICPROSECUTOR

12