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--Memorial On Behalf Of The Respondent--

IN THE HONOURABLE SUPREME COURT OF INDIA

SPECIAL LEAVE PETITION (CIVIL)/2016

UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA

RAM CHANDER
(APPELLANT)
v.

ANANTA
(RESPONDENT)

______________________________________________________________________
ON SUBMISSION TO THE HONORBLE SUPREME COURT

MEMORIAL FILED ON BEHALF OF THE RESPONDENT


___________________________________________________________________

- Rajiv Gandhi School of Intellectual Property Law -

-K. RAVI SHANKARA BHAT-

-16IP63011-

Counsel for the Respondent

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TABLE OF CONTENTS

[A] LIST OF ABBREVIATIONS ........................................................................................ III

B] INDEX OF AUTHORITIES ........................................................................................... IV


I. LIST OF STATUTES/ BILLS ...................................................................................... IV
II. LIST OF CASES ........................................................................................................... IV
III. LIST OF BOOKS REFERRED..................................................................................... IV

[C] STATEMENT OF JURISDICTION .............................................................................. V

[D] STATEMENT OF FACTS ............................................................................................ VI

[E] ISSUES RAISED ......................................................................................................... VIII

[F] SUMMARY OF PLEADINGS ...................................................................................... IX

[G] ARGUMENTS ADVANCED ........................................................................................... 1


I. THAT THE PRESENT APPEAL IS NOT MAINTAINABLE IN THE HONOURABLE SUPREME COURT
OF INDIA UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA ............................................. 1
II. THAT THE ACTIONS OF THE RESPONDENT DO NOT AMOUNT TO MENTAL CRUELTY AND
THUS A DECREE OF DIVORCE CANT BE GRANTED UNDER SECTION 13 (1) (I-A) OF THE HINDU
MARRIAGE ACT, 1955 AS PLEADED BY THE APPELLANT ......................................................... 2

[H] PRAYER FOR RELIEF ................................................................................................... 6

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[A] LIST OF ABBREVIATIONS

S. No. ABBREVIATION EXPANSION

1. v. Versus
2. AIR All India Report
3. SC Supreme Court
4. SC Supreme Court Cases
5. Ors. Others
6. Anr. Another
7. Cal Calcutta

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[B] INDEX OF AUTHORITIES

CONSTITUTION OF INDIA, 1950

I. LIST OF STATUTES/ BILLS


HINDU MARRIAGE ACT, 1955.

INDIAN PENAL CODE, 1860.

INDIAN EVIDENCE ACT, 1872.

II. LIST OF CASES


S.No. CASES CITATION
1. Pritam Singh v. The State AIR 1950 SC 159
2. V. Bhagat v. D. Bhagat AIR 1994 SC 710
3. Smt. Krishna Banerjee v. Bhanu Bikash Bandyopadhyay AIR 2001 Cal 154
4. Dr. N.G. Dastane v. Mrs. S. Dastane AIR 1975 SC 1534
5. Naveen Kohli v. Neelu Kohli AIR 2006 SC 1675
6. Panchhi & Ors. v. State of Uttar Pradesh (1998) 7 SCC 177
7. Mangoo & Anr. v. State of Madhya Pradesh AIR 1995 SC 959
8. Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511
9. Gaurav Nagpal v. Sumedha Nagpal AIR 2009 SC 557

III. LIST OF BOOKS REFERRED


1. Dr. Paras Diwan, Modern Hindu Law (Allahabad Law Agency, 22nd edition).

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[C] STATEMENT OF JURISDICTION

The Respondent most humbly rejects the jurisdiction of the Honourable Supreme Court of India
under Article 136 of the Constitution of India for the following Appeal.

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[D] STATEMENT OF FACTS


1. The marriage between the Appellant - husband, an engineer and the Respondent - wife a
draftsman, both working in the office of Andaman Public Works Department took place
on 2nd March 1994 as per the Hindu traditions and they lived together in the matrimonial
home.
2. A son was born in the wedlock on 24th January 1996.
3. The appellant alleged that immediately after marriage, the relationship between the
spouses was not cordial and the respondent did not want to live with husband's family and
wanted to live separately. She insulted and abused the husband calling him 'dhobi' and the
minor child as 'dhobi's son'.
4. During their cohabitation the couple had changed their residence thrice. The appellant
alleged that it was due to the rude behaviour of the respondent with the landlord and the
neighbours. Respondent rejected these allegations and stated that the shifting was
necessitated once because the husband desired so and on two other occasions due to
increase in rent demanded by the landlord and absence of sufficient quantity of water to
the rented premises.
5. The respondent alleged that since her father was working as 'chowkidar', the appellants
family was ill-disposed towards her and they used to taunt her for not bringing enough
dowry.
6. Respondent filed a case under Section 498-A of Indian Penal Code against the appellant
but the complaint was later withdrawn by her.
7. Respondent also levelled an allegation of extra marital affair against the appellant with a
woman who was working under him and claimed that whenever she confronted him in this
respect the appellant would shout and abuse her.
8. In 1997, the respondent left the matrimonial home and started to live with her parents and
upon legal notice sent by her husband she returned back to the matrimonial home.
9. Then again in March 2003, the respondent left the matrimonial home to live with her
parents and has not come back since.
10. The appellant filed for divorce in Matrimonial Suit No. 27 of 2005, District Court,
Andaman and Nicobar Islands, on the ground of cruelty and desertion under Section
13(1)(i a) and 13(1) (i b) of the Hindu Marriage Act, 1955. After hearing the parties, the
learned District Judge passed a Decree of Divorce dated 14th July 2008.

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11. The respondent appealed to the High Court of Calcutta - Circuit Bench at Port Blair by the
respondent in F.A. No. 003 of 2008. The Honourable Court also heard the spouses in
chamber for exploring whether any reconciliation was possible or not. While the
Respondent was agreeable to return forgetting past incidents, the appellant did not agree.
The Court then requested the appellant to have a conversation with the respondent outside
the Court during the weekend so that if the differences are sorted out, the marital bond
could be saved. While before the Court the appellant agreed, he did not contact her. After
the failed endeavor to bring about a reconciliation, the Honourable Court decided the
appeal on merits and the decree of Divorce was set side.
12. Thus, being aggrieved by this decision, the petitioner has preferred an appeal before this
Honourable Court
Hence, The Present Appeal Is Before This Honourable Court.

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[E] ISSUES RAISED

I. Whether the present appeal is maintainable in the Honourable Supreme Court


of India under Article 136 of the Constitution of India?

II. Whether the actions of the Respondent amount to Mental Cruelty for a decree of
Divorce to be granted under Section 13 (1) (i a) of The Hindu Marriage Act, 1955
as pleaded by the Appellant?

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[F] SUMMARY OF PLEADINGS

I. THAT THE PRESENT APPEAL IS NOT MAINTAINABLE IN THE


HONOURABLE SUPREME COURT OF INDIA UNDER ARTICLE 136 OF
THE CONSTITUTION OF INDIA
In the present case, neither grave injustice was done nor does it involve any substantial
Constitutional question of law. Hence, the appellant has no grounds to approach this
Honourable court against the decision of the Honourable High Court of Calcutta,
Andaman and Nicobar Bench, under the Article 136 of the Constitution of India

II. THAT THE ACTIONS OF THE RESPONDENT DO NOT AMOUNT TO


MENTAL CRUELTY AND THUS A DECREE OF DIVORCE CANT BE
GRANTED UNDER SECTION 13 (1) (i a) OF THE HINDU MARRIAGE ACT
AS PLEADED BY THE APPELLANT
The acts of the respondent alleged by the appellant were not of such degree of cruelty
that Appellants life became miserable and hence marital tie be snapped. Additionally,
those acts were just ordinary wear and tear of the marriage and dont amount to mental
cruelty.

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[G] ARGUMENTS ADVANCED

I. That the present appeal is not maintainable in the Honourable Supreme Court of
India under Article 136 of the Constitution of India
1. It is humbly submitted before this honourable Court that Article 136 vests the Supreme
Court of India with a special power to grant special leave. It reads
Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion,
grant special leave to appeal from any judgment, decree, determination, sentence or
order in any cause or matter passed or made by any court or tribunal in the territory
of India
2. The Honourable Supreme Court in a catena of judgements has pointed out that this special
discretionary power is granted to the Supreme Court to grant leave to appeal against any
judgment in case any substantial constitutional question of law is involved, or gross
injustice has been done. The Supreme Court of India may also refuse to grant the leave to
appeal by exercising its discretion. An aggrieved party from the judgment or decree of
high court cannot claim special leave to appeal as a right but it is a privilege which the
Supreme Court of India is vested with and this leave to appeal can be granted by it only.
3. The Honourable Supreme Court in Pritam Singh v. The State1 observed that the Supreme
Court is vested wide discretionary power under Article 136 and this power is required to
be exercised sparingly and only in exceptional cases. The Court also observed that this
Court should not grant special leave, unless it is shown that exceptional and special
circumstance exist, that substantial and grave injustice has been done and the case in
question presents features of sufficient gravity to warrant a review of the decision
appealed against.
4. In the present case, neither an exceptional and special circumstance exist nor is the
appellant facing substantial and grave injustice due to the judgement of the Honourable
High Court of Calcutta.

Hence, it is most humbly requested before this honourable court appellants request to
grant special be rejected and the case be dismissed.

1
AIR 1950 SC 169

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II. That the actions of the Respondent do not amount to Mental Cruelty and thus a
Decree of Divorce cant be granted under Section 13 (1)(i-a) of the Hindu Marriage
Act, 1955 as pleaded by the Appellant
1. It is humbly submitted to this Honourable Court that Marriage is a sacramental union, a
holy union between man and women and not a contractual union as per Hindu tradition. It
is a union which once tied cannot be untied. According to Manu, husband and wife are
united to each other not merely in this life but even after death, in the other world.2
2. Section 13 of the Hindu Marriage Act 1955 defines the grounds for divorce and Section
13 (1)(i-a) specifically states that:
(1) Any marriage solemnised, 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
(i-a) has, after the solemnisation of the marriage, treated the petitioner with
cruelty
3. The term Cruelty constitutes both acts of Physical and Mental cruelty. Even though the
act doesnt define mental cruelty as such, the Apex court has in ample verdicts defined and
established the grounds for mental cruelty.
4. In Bhagat v. Bhagat,3 the Honourable Supreme Court defined Mental Cruelty as "that
conduct which inflicts upon the other party such mental pain and suffering as would make
it not possible for that party to live with the other. In other words, mental cruelty must be
of such a nature that the parties cannot reasonably be expected to live together. It was
further stated that it What is cruelty in one case may not amount to cruelty in another
case. It is a matter to be determined in each case having regard to the facts and
circumstances of that case. If it is a case of accusations and allegations, regard must also
be had to the context in which they were made.
5. As alleged by the appellant, the respondent often misbehaved with the appellant and their
child by calling him "Dhobi" and the child "Dhobi ka aulad" and such utterances had
adverse effect on both the respondent and the minor child. This was proved in the trial
court using the child as the witness. The words even if it was ever used by the Respondent
to call the child isnt right, it doesnt amount to such degree of cruelty that the Appellant's
life became so miserable and hence the marital tie has to be broken. It is humbly requested

2
Dr. Paras Diwan, Modern Hindu Law (Allahabad Law Agency, 22nd edition).
3
V. Bhagat v. D. Bhagat, AIR 1994 SC 710

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in front of this Honourable the Court that it would not be justified in holding such an
instance to be grounds sufficient enough to dissolve a marriage.
6. It is further alleged that the respondent was reluctant to do any household work and was
not cooking food for the appellant and the child which necessitated the bringing of food
from outside, thus amounting to mental cruelty. The respondent being a working mother,
sometimes would not have gotten time to cook. Moreover, the Supreme Court in Smt.
Krishna Banerjee v. Bhanu Bikash Bandyopadhyay4 held that The refusal to attend the
domestic work etc. cannot be in the ordinary circumstances, an instance of cruelty either
mental or physical thus establishing the fact that this is not an act of mental cruelty.
7. The next allegation made by the appellant that the respondent filed a case under Section
498-A of Indian Penal Code against him and this constituted to mental cruelty doesnt hold
because the case was withdrawn by the respondent and the two parties resumed
cohabitation. This implies that the appellant condoned the act of the respondent. According
to Section 23 (1) (b) of the Hindu Marriage Act, relief can be granted to the petitioner
where the ground of the petition is cruelty the petitioner has not in any manner condoned
the cruelty
Since the appellant has condoned the particular act, he cant be using the same as a ground
for mental cruelty. The same has been held in magnitude of cases including the landmark
case of Dastane v. Dastane5.
8. The last instance of cruelty alleged by the appellant is the allegation made by the
Respondent that he has been involved in an extra marital affair. It is true that the
Respondent wasnt able to prove the allegation but was able to identify the lady with whom
the Appellant allegedly had an affair with. The Learned Judge C. Nagappan rightly pointed
out in the High Court that If one is involved in an extra-marital affair, which is a social
crime, it would hardly be an open affair and in most cases be a clandestine one. It would
be difficult for a wife to prove such allegation by adducing witnesses. Mere failure of the
wife in such a case to prove her allegation ought not to have Mere failure to prove such
allegation would not entitle the husband to a decree of divorce. Thus this also will not be
amounting to mental cruelty. The respondent is ready to forget this and would like to save
the marriage.

4
AIR 2001 Cal 154
5
Dr. N.G. Dastane vs. Mrs. S. Dastane, AIR 1975 SC 1534

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9. The Trial Court placed too much weightage on the Childs witness, as rightly pointed out
by the Honourable High court. Section 118 of the Indian Evidence Act, 1872 generally
lays down who may testify. Prima facie, the section says that everyone is competent to be
a witness as long as they can understand and respond to the questions posed. Thus a child
can be a competent witness. Several factors influence childrens memory capacity,
including the childs age, intellectual ability, the complexity of the event, their familiarity
with the event and the delay between the event and the time at which the event is recalled.
10. In this case, firstly the son was of a very tender age (around) when the alleged acts took
place. Secondly he stayed with the father (i.e. Appellant) for the next three years from the
time the mother (i.e. Respondent) moved out of the house till the time of trial. In the cases
Panchhi & Ors. v. State of Uttar Pradesh6 and Mangoo & Anr. v. State of Madhya
Pradesh7, the court held that child witness must be evaluated more carefully because a
child is susceptible to be swayed by what others tell him and thus a child witness is an easy
prey to tutoring. Based on these facts and case laws it is clear that the child was not a
credible witness and District Court was wrong in placing so much reliance on the
testimony of the child witness.
11. In the Samar Ghosh8 case, the Apex court laid fourteen illustrative but non exhaustive
guidelines to determine what acts constitutes mental cruelty. The relevant points i.e. point
no (iii), (viii), (ix) and (x) are as below:

(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of
language, petulance of manner, indifference and neglect may reach such a degree that
it makes the married life for the other spouse absolutely intolerable.

(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which
causes unhappiness and dissatisfaction and emotional upset may not be a ground for
grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which
happens in day-to-day life would not be adequate for grant of divorce on the ground of
mental cruelty.

6
(1998) 7 SCC 177
7
AIR 1995 SC 959
8
Samar Ghosh v. Jaya Ghosh, MANU/SC/1386/2007

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(x) The married life should be reviewed as a whole and a few isolated instances over a
period of years will not amount to cruelty. The ill conduct must be persistent for a fairly
lengthy period, where the relationship has deteriorated to an extent what because of
the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live
with the other party any longer, may amount to mental cruelty.

12. The acts of the respondent are not so serious in nature. They dont constitute to Mental
cruelty as defined by the Honourable Court in the Samar Gosh judgement (supra). They
are trivial irritations, normal wear and tear of the marriage life and do not account to
amount to mental cruelty. One off instances here and there during the course of marriage
doesnt lead to mental cruelty.
13. In Gaurav Nagpal V. Sumedha Nagpal9, the Honourable Supreme Court indicated that
Effort should be to bring about conciliation to bridge the communication gap which leads
to such undesirable proceedings. People rushing to courts for breaking up of marriage
should come as a last resort, and unless it has an inevitable result, courts should try to
bring about conciliation. The emphasis should be on saving marriage and not breaking
it."
The honourable High Court tried for Reconciliation to save the marriage. Both the parties
were asked to go for conciliation by spending the week end at a suitable place in a
congenial atmosphere. Even though the respondent was ready, the appellant did not adhere
to the request. This only highlights that the appellant is bent upon to sustain the order of
divorce and not interested in maintaining the esteemed marital bond. And thus it is a
humble request to the court to not support the ill-will of the appellant and save this
sacramental bond of marriage.

Hence, it is most humbly submitted before this honourable court that the actions of the
respondent considered separately or cumulatively, do not amount to mental cruelty
and hence divorce cant be granted on the same grounds. Thus it is requested to reject
the prayer of the appellant and dismiss this appeal.

9
AIR 2009 SC 557

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[H] PRAYER FOR RELIEF


In the light of the facts stated, issues raised, authorities cited and pleadings advanced, it is most
humbly prayed before this Honourable Court that it may be graciously pleased to:

Reject the appellants plea for the grant of Special Leave under Article 136 of the
Constitution of India.

If not, then

Reject the appellants prayer for decree of Divorce under Section 13 (1) (i a) of the
Hindu Marriage Act, 1955 and uphold the judgement passed by the Honourable High
Court of Calcutta, Andaman and Nicobar Bench.

And pass any other order that it deems fit in the interest of justice and good conscience. All of
which is respectfully submitted.

Date: August 29, 2016 K. Ravi Shankara Bhat

Place: New Delhi Counsel ID:16IP63011

(Counsel For The Respondent)