BAR COUNCIL OF INDIA 26TH ALL INDIA MOOT COURT COMPETITION, 2010

IN THE HONBLE HIGH COURT OF DELHI

AT NEW DELHI
CIVIL MISCELLANEOUS APPEAL NO: _____/2010 [UNDER SECTION 28 OF THE HINDU MARRIAGE ACT, 1955] [UNDER SECTION 19 OF THE FAMILY COURTS ACT, 1984]

IN THE MATTER OF:

GANGA .....APPELLANT

Versus

KIRAN LAL.........................................................RESPONDENT

MEMORIAL ON BEHALF OF APPELLANT -

COUNSELS FOR APPELLANT

Arjun Pall Nayanthika R National Law University, Jodhpur

TABLE OF CONTENTS

LIST OF ABBREVIATIONS .............................................................................................................. III INDEX OF AUTHORITIES.................................................................................................................. V STATEMENT OF JURISDICTION .................................................................................................... VII STATEMENT OF FACTS............................................................................................................... VIII ISSUES FOR CONSIDERATION ......................................................................................................... IX SUMMARY OF ARGUMENTS............................................................................................................. X WRITTEN SUBMISSIONS ................................................................................................................... 1 1. THE PRESENT APPEAL IS MAINTAINABLE .................................................................................. 1 1.1. Order of the District Court is appealable .................................................................... 1

2. THE DISTRICT COURT ERRED IN DISMISSING THE PETITION FOR WANT OF JURISDICTION ..... 1 2.1. 2.2. 2.3. 2.4. 3. THE Jurisdiction with the District Court ............................................................................. 1 The District Court is the appropriate forum ............................................................... 2 The appellants real and substantial connection ...... Error! Bookmark not defined. Arguendo, The respondent is a domicile of the US .................................................... 3
APPELLANT IS ENTITLED TO HER CLAIM OF DIVORCE AND COMPENSATION

................................................................................................................................................... 3 3.1. 3.2. 3.3. Respondent is guilty of cruelty..................................................................................... 3 Relief of divorce available to the appellant ................................................................. 4 Compensation............................................................................................................... 5

PRAYER FOR RELIEF........................................................................................................................ 5

- MEMORANDUM ON BEHALF OF THE APPELLANT -

II

LIST OF ABBREVIATIONS
S. NO. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. ABBREVIATION & AIR All All ER AP Bom. BomCR Cal. CriLJ DLT DMC Del. Ed Edn. FB Guj. HL HP Ker Mad. MhLJ MLR MP O Ori p. P. P&H Raj SCALE SCC SCR EXPANSION : And : All India Reporter : Allahabad ( High Court) : All England Reports : Andhra Pradesh ( High Court) : Bombay (High Court) : Bombay Civil Reporter : Calcutta (High Court) : Criminal Law Journal : Delhi Law Times : Divorce and Matrimonial Cases : Delhi (High Court) : Edited by : Edition : Full Bench : Gujarat (High Court : House of Lords : Himachal Pradesh ( High Court) : Kerala (High Court) : Madras (High Court) : Maharashtra Law Journal : Matrimonial Law Reporter : Madhya Pradesh ( High Court) : Order : Orissa : Page : Pacific Reporter : Punjab & Haryana : Rajasthan ( High Court) : Supreme Court Almanac : Supreme Court Cases : Supreme Court Reporter

- MEMORANDUM ON BEHALF OF THE APPELLANT -

III

33. 34. 35.

Sec v. Vol.

: Section : Versus : Volume

- MEMORANDUM ON BEHALF OF THE APPELLANT -

IV

INDEX OF AUTHORITIES
CASES 1. Angelo v. Angelo, 1967 (3) All.E.R. 314 ................................................................................... 3 2. Anusayabai v.Vasudeo 1991 Mah LJ 458 ................................................................................. 4 3. Ashwini Kumar Sehgal v. Swatantar Sehgal 1979 M.LR. 26 (P & H) ...................................... 4 4. Brown v. Brown, 1968 (2) All.E.R. 11 ...................................................................................... 3 5. Central Bank of India v. Ram Narain 1955CriLJ152 ................................................................ 2 6. Chand Dhawan v. Jawaharlal Dhawan (1993) 3 SCC 406 ..................................................... 5 7. Craignish v. Craignish (1892) 3 Ch. 180 (A)............................................................................ 2 8. D. S. Seshadri v. Jayalakshmi AIR 1963 Mad 283 .................................................................. 1 9. Dr.Kesho Rao v. Nisha AIR 1984 Bom 413 (FB) ..................................................................... 4 10. Family Courts Act, 1984 ..................................................................................................... I, VII 11. Harilal Purshaottam v. Lilavati Gokaldas AIR 1961 Guj 202 ................................................. 1 12. Harmeeta Singh v. Rajat Taneja 102 (2003) DLT 822 ............................................................. 2 13. Indyka v. Indyka, 1967 (2) All.E.R. 689 .................................................................................... 3 14. Jasbir Kaur Sehgal (Smt) v. District Judge, Dehradun and Ors. (1997) 7 SCC 7.................... 5 15. Johnstone v. Johnstone, 1929 P 165 .......................................................................................... 5 16. K. Vimla v. K. Veera Swamy (1991) 2 DMC 52 (SC) ............................................................... 4 17. K.C.Agarwala v. Orissa AIR 1986 Ori 104 .............................................................................. 1 18. Kedar Pandey v. Narain Bikram Sah [1965] 3 SCR 793 .......................................................... 2 19. King v. King [1952] 2 All E.R. 584 ........................................................................................... 4 20. Kode Kutumbha Rao v. Kode Sesharathnamamba AIR 1967 AP 323 ...................................... 1 21. Lalita Devi v. Radha Mohan AIR 1976 Raj 6 ........................................................................... 4 22. Lallubhai v. Nirmalaben AIR 1972 Guj 174 ............................................................................. 1 23. Laxmibai v. Ayodhya Prasad AIR 1991 MP 47 ........................................................................ 5 24. Louis De Readt v. Union of India, (1991) 3 SCC 554 ............................................................... 2 25. Mangala Pralhad Awad v. Pralhad Haribhau Awad 1994 CriLJ 2643 .................................... 4 26. Manju Ram Kalita v. State of Assam 2009 (8) SCALE 794 ...................................................... 4 27. Marggarate Pulparampil v Dr. Chacko Pulparampil AIR 1970 Ker 1 .................................... 3 28. Mather v. Mahoney, 1968 (3) All.E.R. 223 ............................................................................... 3 29. Mayfield v. Mayfield, 1969 (2) All.E.R. 219 ............................................................................. 3 30. Neelavani v. Venkateshwara 1989 (1) HLR 410 ....................................................................... 4 31. Neeraja Saraph v Jayant Saraph (1994) 6 SCC 461................................................................. 3 32. Parveen Mehta v. Indrajit Mehta (2002) 5 SCC 706 ................................................................ 4

- MEMORANDUM ON BEHALF OF THE APPELLANT -

33. Prakash Kumar v. State of Gujarat (2005) 2 SCC 409 ............................................................. 1 34. Rajiv Kapoor v. Smt. Seema Kapoor and Anr. 132(2006)DLT300 ........................................... 5 35. Ramesh Chandra Daga v. Rameshwari Daga (2005) 2 SCC 33............................................... 5 36. Ranjit Singh v. Shamabai 1982 (2) BomCR 171 ....................................................................... 1 37. S. Hanumantha Rao v. S. Ramani (1999) 3 SCC 620 ............................................................... 4 38. Shiv Indersen v. Natasha 2002 (2) BomCR 436 ....................................................................... 3 39. Smith v. Smith, 1923 P 128 ........................................................................................................ 5 40. Smt. Snehlkata Dansena v.l Jagdish Dansena AIR 1964 Ori 122 ............................................ 1 41. Sondur Rajini v. Sondur Gopal 2005 (4) MhLj 688 .................................................................. 3 42. Surendra Kumar Asthana v. Kamlesh Asthana AIR 1974 All 110 ........................................... 5 43. Suresh Khullar v. Vijay Kumar Khullar AIR 2008 Delhi 1 ..................................................... 4 44. Surinder Kaur v. Harbax Singh, 1984 S.C.C. 698 .................................................................... 2 45. Sushila Devi v. Dhani Ram AIR 1965 HP 12 ............................................................................ 1 46. V. Bhagat v. D. Bhagat (1994)1 SCC 337 ................................................................................ 4 47. Vera Aranha v. Jacob Harlad Aranha 1987 MhLJ 849 ............................................................ 1 48. Vinitha Saxena v. Pankaj Pandit 2006) 3 SCC 778 ................................................................. 4 49. Y. Narasimha Rao & Ors. v. Y. Venkata Lakshmi & Anr. (1991) 3 SCC 451 ........................... 3 50. Yogesh Bhardwaj v. State of U.P. and Ors. (1990) 3 SCC 355................................................. 2

OTHER AUTHORITIES 1. <http://epaperdaily.timesofindia.com/Repository/ml.asp?Ref=VE9JTS8yMDA1LzA2LzIzI0F yMDA1MDI=&Mode=Gif&Locale=english-skin-custom> ..................................................... 3 2. Law Commission of India, 178th Report on Recommendations for amending Various

Enactments, both Civil and Criminal (2001) ............................................................................. 3

TREATISES 1. Maxwell on the Interpretation of Statutes, (New Delhi, LexisNexis, 12th edn. (ed P. St.J. Langan), 2003) ........................................................................................................................... 1 2. North, Peter, et al, Cheshire, North & Fawcett: Private International Law, (New York: Oxford University Press, 14th edition, 2008) ............................................................................. 2

- MEMORANDUM ON BEHALF OF THE APPELLANT -

VI

STATEMENT OF JURISDICTION
The Appellant in Civil Miscellaneous Appeal No._____/2010 most humbly submits that the Honble High Court of Delhi at New Delhi has the appropriate jurisdiction under Section 28 of the Hindu Marriage Act, 1955 read with Section 19 of the Family Courts Act, 1984 to hear the matter and adjudicate accordingly. Hence the present case is in this Honble Court.

- MEMORANDUM ON BEHALF OF THE APPELLANT -

VII

STATEMENT OF FACTS
-IShri Ram Singh and his wife had three daughters, one of whom is the appellant, Ms. Ganga. He had published her profile on all matrimonial websites to find a suitable groom. He found a suitable match for his daughter in the respondent, Mr. Kiran Lal, who belonged to the Hindu religion. He was working in the United States of America since 2000 and held a permanent residency card of that country. He also held an Indian passport. -IIThe marriage was solemnized on the 12th of December, 2007 as per Hindu religion and the Brahmin community traditions. It was also registered in the sub-registrars office in New Delhi. -IIIOn the 1 st January, 2008, the couple left for the United States of America and stayed there for approximately a year. Meanwhile, the appellant applied for permanent residence. Also, she discovered that the respondent had already married a Ms.Stella in 2006 in the United States of America and had completed the marriage with her while divorce proceedings were still pending -IVThe respondent started ill-treating the appellant, by harassing her and keeping her in confinement. She escaped to India with the help of her neighbors and in March, 2009 approached the District Court for a decree of divorce which was rejected on grounds of want of jurisdiction.

Hence the present appeal is before this Honble High Court

- MEMORANDUM ON BEHALF OF THE APPELLANT -

VIII

ISSUES FOR CONSIDERATION

1. WHETHER THE PRESENT APPEAL IS MAINTAINABLE? 2. WHETHER THE DISTRICT COURT ERRED IN DISMISSING THE PETITION FOR WANT OF
JURISDICTION?

3. WHETHER

THE APPELLANT IS ENTITLED TO HER CLAIM OF DIVORCE AND

COMPENSATION?

- MEMORANDUM ON BEHALF OF THE APPELLANT -

IX

SUMMARY OF ARGUMENTS

ISSUE 1: Whether the present appeal is maintainable? The decision of the District Court, dismissing the appellants petition is an order that can be appealed against in the High Court by the operation of the provisions of Section 28 of the Hindu Marriage Act, 1955. The legislative intent of this provision makes it apparent that it provides for an appeal from all orders and decrees. ISSUE 2: Whether the District Court erred in dismissing the petition for want of jurisdiction? As the marriage was solemnised in India, it is the provisions of the Hindu Marriage Act that will be applicable for any dispute. Both the appellant and the respondent, it is urged, had their domiciles in India and thereby the Delhi District Court had jurisdiction. So, by virtue of Sec 19(1) ( iiia) and Sec 19 (1) (iv). Even assuming but not conceding that the respondent had his domicile in the United States, the archaic principle that a wifes domicile follows that of her husband is no longer applicable in the light of the Courts decisions and hence as the appellants domicile is clearly India, the District Court had jurisdiction to entertain the matter. ISSUE 3 : Whether the appellant is entitled to her claim of divorce and compensation? Though, the facts state that the respondent had married the appellant while divorce proceedings of his first marriage was still pending, the lawfulness of the appellants marriage will be presumed till the respondent proves the subsistence of the first marriage. Also, the respondent has clearly adopted behaviour that will classify as cruelty, which affords the appellant a ground for divorce under the provisions of Sec 13 of the Hindu Marriage Act, and thereby on divorce she becomes entitled to permanent maintenance as provided for under Sec 25 of the Act.

- MEMORANDUM ON BEHALF OF THE APPELLANT -

WRITTEN SUBMISSIONS
1.
THE PRESENT APPEAL IS MAINTAINABLE.

1.1. Order of the District Court is appealable: The decision of the District Court, dismissing the petition is an order 1 and the appellant has moved this High Court under the provisions of Section 19 of the Family Courts Act, 1984 which provides for an appeal from every order passed by a Family Court to the High Court, both on facts and law. Also, the provisions of Section 28 of the Hindu Marriage Act, 1955 come into application, making orders passed under the Act appelable. Ordinarily, the provisions of Section 104 and O.XLIII of the Code of Civil Procedure will have to be looked into. Such an order is not covered by the provisions of either. At such a juncture, recourse should be had to Section 28 of the Hindu Marriage Act, 1955. The Gujarat2, Madras 3, Bombay4 and Andhra Pradesh5 High Courts are of the view that the legislative purpose is to make all orders and decrees appealable. The words any law for the time being in force were held to regulate the forum and the procedure and not restrict the right created.6 The legislative purpose is clearly to make all orders appealable and hence interpreting it to mean the right to appeal dependent upon the Code of Civil Procedure would reduce the legislation to futility7, thereby going against principles of interpretation of statutes, which provide that meaning of words in a statute are to be understood in the sense in which they best harmonize with the subject of the enactment and the object which the legislature had in view.8 Moreover, by virtue of Section 21 of the Hindu Marriage Act, all provisions of Civil Procedure Code which are neither inconsistent nor contrary to the provisions of the Act shall apply, subject to the matters specifically provided for.9 2.
THE DISTRICT COURT ERRED IN DISMISSING THE PETITION FOR WANT OF JURISDICTION .

2.1. Jurisdiction with the District Court: The appellant and respondents marriage was performed according to Hindu rites and also the Brahmin communitys traditions. Since both are Hindus, by the application of S.1 (2) of the Hindu Marriage Act, 1955, that act would be applicable to them as both have their domicile in India and the only law that
1 2

K.C.Agarwala v. Orissa AIR 1986 Ori 104 Harilal Purshaottam v. Lilavati Gokaldas AIR 1961 Guj 202; Lallubhai v. Nirmalaben AIR 1972 Guj 174 . 3 D. S. Seshadri v. Jayalakshmi AIR 1963 Mad 283 4 Vera Aranha v. Jacob Harlad Aranha 1987 MhLJ 849 5 Kode Kutumbha Rao v. Kode Sesharathnamamba AIR 1967 AP 323 6 Sushila Devi v. Dhani Ram AIR 1965 HP 12; Smt. Snehlkata Dansena v.l Jagdish Dansena AIR 1964 Ori 122 7 Prakash Kumar v. State of Gujarat (2005) 2 SCC 409 8 Maxwell on the Interpretation of Statutes, (New Delhi, LexisNexis, 12th edn. (ed P. St.J. Langan), 2003), p.98 9 Ranjit Singh v. Shamabai 1982 (2) BomCR 171

- MEMORANDUM ON BEHALF OF THE APPELLANT -

can be applicable to the matrimonial disputes is the one under which the parties are married, and no other law10. 2.1.1 Both parties are domiciles of India: Domicile is the place where person has his habitation is fixed without any present intention of removing therefrom. 11 By merely leaving his country, even permanently, one will not, in the eye of law, lose one's (his) domicile until he acquires a new one. 12 The husbands domicile of origin is clearly India, which can be concluded from the fact that he is an Indian citizen by birth (as his parents are Indian citizens) and a persons domicile of origin is determined at the time of his birth by the person upon whom he is legally dependent.13Moreover he still holds his Indian citizenship. Whether, he intended to live there forever14 is an essential constituent to establish domicile, is for him to establish15 before the Court. The respondent has been in the US, since 2000 but has applied for permanent residence only in 2008 and has not renounced his Indian citizenship. Merely staying there for a long time is not sufficient proof 16, what is required is that the person whose domicile is the object of the enquiry should have formed a fixed and settled purpose of making his principal or sole permanent home in the country of residence17. 2.2. The District Court is the appropriate forum: It is the submission of the counsels that under Section 19 of the Hindu Marriage Act, 1955, the District Court has jurisdiction as the marriage was solemnised in Delhi18, or on the basis that the petitioner being the wife is residing in Delhi19, or on the basis that, since the Respondent is residing in the US, District Court has jurisdiction as the Appellant resides there.20 It would be pertinent to refer a recent decision of this Court in Harmeeta Singh v. Rajat Taneja21 wherein the husband was employed in the USA and the wife accompanied him there after the marriage. In that case, the Court held that as the wife had lived in India almost her entire life and the husband was an Indian, his parents were Indians and moreover like in this
10 11

Surinder Kaur v. Harbax Singh, 1984 S.C.C. 698 Craignish v. Craignish (1892) 3 Ch. 180 (A), 12 Louis De Readt v. Union of India, (1991) 3 SCC 554 13 Kedar Pandey v. Narain Bikram Sah [1965] 3 SCR 793 14 Central Bank of India v. Ram Narain 1955CriLJ152 15 North, Peter, et al, Cheshire, North & Fawcett: Private International Law, (New York: Oxford University Press, 14th edition, 2008), p.143 16 Yogesh Bhardwaj v. State of U.P. and Ors. (1990) 3 SCC 355 17 supra note 13 18 S.19(1)(i) of the Hindu Marriage Act, 1955 19 S.19(1)(iiia) of the Hindu Marriage Act, 1955 20 S.19(1)(iv) of the Hindu Marriage Act, 1955 21 102 (2003) DLT 822

- MEMORANDUM ON BEHALF OF THE APPELLANT -

case, he had interest in immoveable property situated in India, the forum of convenience was held to be the Delhi High Court. Applying this logic, the appellants place of residence for the purposes of Sec 19(iv) is India as she had stayed her entire life in India prior to the marriage, and only moved to the USA for a brief period. The test of real and substantial connection of the wife with the place where she approaches a Court22 is to be followed in establishing her residence. The Bombay High Court has held that a residence of a wife with her parents at the time of filing of a petition under the Hindu Marriage Act would be sufficient to attract the jurisdiction of Court where the residence of her parents situates.23 The Delhi Court that has the most intimate contact as the marriage was solemnised there. Hence, it will have the jurisdiction.24The Bombay High Court 25 recently held that if both bride and groom were married in India as domiciled Indians under the Hindu Marriage Act, a family court could hear and adjudicate a plea for divorce, irrespective of whether one or both partners lived abroad for long stretches and even domicile.26 2.3. Arguendo, The respondent is a domicile of the US: Assuming, but not accepting that the respondent is domiciled in the USA, the antiquated English principle of wifes domicile following the husbands has long since been abolished27 and its abolition has been recommended by the Law Commission28 and established in Y. Narasimha Rao & Ors. v. Y. Venkata Lakshmi & Anr.29 The Supreme Court30, has advised that a legislation incorporating the provision that no marriage between an NRI and an Indian woman is to be annulled by a foreign court may be passed to better the plight of women such as the appellant. 3. THE APPELLANT IS ENTITLED TO HER CLAIM OF DIVORCE AND COMPENSATION. 3.1. Respondent is guilty of cruelty: Section 13(1) (ia) of the Hindu Marriage Act, 1955 allows cruelty as a ground for divorce. The appellant was harassed and confined to her house, by the respondent, an act which is sufficient to satisfy the Court that relations

22

Marggarate Pulparampil v Dr. Chacko Pulparampil AIR 1970 Ker 1; Shiv Indersen v. Natasha 2002 (2) BomCR 436 ; acknowledged by the Supreme Court in Surinder Kaur v. Harbax Singh, 1984 S.C.C. 698 23 supra note 10 24 ibid 25 Sondur Rajini v. Sondur Gopal 2005 (4) MhLj 688 26 <http://epaperdaily.timesofindia.com/Repository/ml.asp?Ref=VE9JTS8yMDA1LzA2LzIzI0FyMDA1MDI=& Mode=Gif&Locale=english-skin-custom> (As visited on 20th December, 2009) 27 Indyka v. Indyka, 1967 (2) All.E.R. 689 ; Angelo v. Angelo, 1967 (3) All.E.R. 314; Mayfield v. Mayfield, 1969 (2) All.E.R. 219; Mather v. Mahoney, 1968 (3) All.E.R. 223 and Brown v. Brown, 1968 (2) All.E.R. 11 28 Law Commission of India, 178th Report on Recommendations for amending Various Enactments, both Civil and Criminal (2001) 29 Y. Narasimha Rao & Ors. v. Y. Venkata Lakshmi & Anr. (1991) 3 SCC 451 30 Neeraja Saraph v Jayant Saraph (1994) 6 SCC 461

- MEMORANDUM ON BEHALF OF THE APPELLANT -

between the parties has deteriorated to such an extent that it will be impossible for that party to live with the other31 without mental agony, torture or distress32 Also, it came to the appellants knowledge that the respondent had married her even while the divorce proceedings of his previous marriage were pending. Even indulgence in undue familiarity with another woman amounts to cruelty.33 Since there is no mention of physical cruelty, this case can be brought under mental cruelty, as it is not the numerical count or continuity but intensity, gravity and stigmatic impact of it when meted out even once34 and after taking into account the cumulative effect of the facts and circumstances 35, leading to a consideration of the entire marriage scenario36 whereby the appellant was forced to escape from her own home. The acts of the respondent were such that it severed the bond between the two37 and the appellant cannot be expected to live with him any longer. 3.2. Relief of divorce available to the appellant: Allegedly, the respondent had married while the divorce proceedings for his previous marriage were still subsisting. On this ground, the Respondent may contend trying to attempt to avoid the marriage as being null and void. The burden is on the respondent to prove conclusively38 the factum of the first marriage being a legal and valid one39and in the absence of proof of subsistence of first marriage at the time of second marriage, the presumption of lawfulness of second marriage operates in the wifes favour 40. Assuming but not accepting that the marriage is a null and void one, it is the submission of the counsel that the Supreme Court has in a case of bigamy, held that matrimonial relief of divorce is permissible. 41 That was a case in which there were allegations of offences under S.494 and S.498A of the Indian Penal Code, 1860 which deal with bigamy and cruelty by husband/ relatives of husband subjecting a woman to cruelty. The Court held thus in the concluding paragraph ...The findings so recorded by the Courts below may be relevant for granting the relief in a matrimonial dispute i.e. divorce etc. but could not bring home the charge under Section 498A IPC.Also, in Suresh Khullar v. Vijay Kumar Khullar42, where the husbands ex

31 32

V. Bhagat v. D. Bhagat (1994)1 SCC 337 Ashwini Sehgal v. Swatantar Sehgal 1979 M.LR. 26 (P& H); Dr.Kesho Rao v. Nisha AIR 1984 Bom 413(FB) 33 Lalita Devi v. Radha Mohan AIR 1976 Raj 6 34 Vinitha Saxena v. Pankaj Pandit 2006) 3 SCC 778 35 Parveen Mehta v. Indrajit Mehta (2002) 5 SCC 706 36 King v. King [1952] 2 All E.R. 584 37 S. Hanumantha Rao v. S. Ramani (1999) 3 SCC 620 38 Neelavani v. Venkateshwara 1989 (1) HLR 410; Anusayabai v.Vasudeo 1991 Mah LJ 458 39 K. Vimla v. K. Veera Swamy (1991) 2 DMC 52 (SC) 40 Mangala Pralhad Awad v. Pralhad Haribhau Awad 1994 CriLJ 2643 41 Manju Ram Kalita v. State of Assam 2009 (8) SCALE 794 42 AIR 2008 Delhi 1

- MEMORANDUM ON BEHALF OF THE APPELLANT -

parte divorce of the first marriage was set aside, the wife of the second marriage was treated as a legally wedded wife, for the purpose of granting the relief prayed for to avoid giving immunity to the husband for defrauding the wife. Drawing an analogy from these, as a clear case of cruelty has been made out, the appellant is entitled to divorce. 3.3. Compensation: The appellants prayer for compensation in the form of maintenance can be granted under Sections 24 and 25 of Hindu Marriage Act, 1955. The appellant is entitled to grant of both maintenance pendente lite as well as permanent maintenance.In Chand Dhawan v. Jawaharlal Dhawan43 the Court held that Section 25 can be invoked by either of the spouses where a decree of any kind governed by Sections 9 to 13 has been passed and the marriage-tie is broken, disrupted or adversely affected. In Laxmibai v. Ayodhya Prasad44 , it was held that 'wife' and 'husband' used in Section 24, HMA are not to be given strict literal meaning as to convey only legally married wife and husband. For grant of permanent maintenance, this Honble court is to take into account the income enjoyed by the respondent45 and the quantum can be decided on the basis of guidelines evolved by the Supreme Court.46 In fact, it is seen from decisions of Indian courts47 as well as English courts48 that a question as to jurisdiction does not affect the power of the Court to grant maintenance to the wife. In Ramesh Chandra Daga v. Rameshwari Daga49, even a spouse of a null and void union is entitled to maintenance on the passing of a decree of nullity.

PRAYER FOR RELIEF

Wherefore, in the light of above, it is most humbly prayed that this Honourable Court may be pleased to allow the appeal and adjudge and declare that: : 1. The appellant be granted a decree of divorce and compensation as prayed for And pass any other order in favour of the humble appellant which it may deem fit in the ends of justice, equity and good conscience All of which is respectfull y submitted. Place: New Delhi Date: January 9 , 2010
th

Arj un Pall Nayanthika R (Couns els for App ellant )

43 44

(1993) 3 SCC 406 AIR 1991 MP 47 45 Rajiv Kapoor v. Smt. Seema Kapoor and Anr. 132(2006)DLT300 46 Jasbir Kaur Sehgal (Smt) v. District Judge, Dehradun and Ors. (1997) 7 SCC 7; 47 Surendra Kumar Asthana v. Kamlesh Asthana AIR 1974 All 110 48 Smith v. Smith, 1923 P 128, approved in Johnstone v. Johnstone, 1929 P 165 49 Ramesh Chandra Daga v. Rameshwari Daga (2005) 2 SCC 33

- MEMORANDUM ON BEHALF OF THE APPELLANT -