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A.K.

K New Law Academy, Pune


Practical Training Paper (Ist Moot) Vth BA.LLB, 2019

IN THE HONOURABLE SUPREME COURT OF INDIA

AT NEW DELHI

Special Leave Petition NO. ****/2019

Special Leave Petition u/a 136 of the Constitution of India.

IN THE MATTER OF

Sarita Sharma ……………………………………………………..............APPELANT

v.

Susheel…………………………………………………………………….RESPONDENT

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION


JUSTICES OF THE SUPREME COURT OF INDIA

MEMORIAL ON BEHALF OF RESPONDENT


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Murtaza Noorani

Page 1 of 22

TABLE OF CONTENTS

LIST OF ABBREVIATIONS ………………………………………………………2

LIST OF AUTHORITIES………………………………………………………...…3

ACTS AND STATUTES……………………………………………………………3


LIST OF CASES………………………………………………………………….…4

BOOKS REFERRED…………………………………………………………….…5

DICTIONARIES REFERRED………………………………………………………5

WEBSITE REFERRED…………………………………………………………..…5

STATEMENT OF JURISDICTION…………………………………………………6

STATEMENT OF FACTS……………………………………………………..……7

ISSUES RAISED………………………………………………………………….…8

SUMMARY OF ARGUMENTS………………………………………………….…9

ARGUMENTS ADVANCED………………………………………………………10
PRAYER………………………………………………………………………...…22

Memorial on Behalf of the Respondent


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LIST OF ABBREVIATIONS

¶ Paragraph
& And
AIR All India Reporter
Anr. Another
Art. Article
Gau Guwahati
HC High Court
Mad Madras
PC Privy Council
P&H Punjab & Haryana
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Record
SLP Special Leave Petition
UOI Union of India
v. Versus

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LIST OF AUTHORITIES

CONSTITUTION

CONSTITUTION OF INDIA

ACTS AND STATUTES

THE HINDU MARRIAGE ACT, 1955

THE CODE OF CIVIL PROCEDURE, 1908

THE INDIAN EVIDENCE ACT, 1872

THE FAMILY COURTS ACT, 1984

LIST OFCASES

Geeta Mullick v. Brojo Gopal Mullick AIR 2003 Cal. 321.

Kanchan Devi v. Pramod Kumar Mittal AIR 1996 SC 3192

Samar Ghosh vs Jaya Ghosh 2004 SCC 511

Ali Jishan v. State of Kerala, on 26 November, 2009

Amar Singh v. State of MP, 1996 ( 1582) (MP)

Anil Kumar Gupta vs. State of UP, 2011 Cr.LJ 2131

Aruna Chadha v. State of Delhi, CRL.REV.P. 305/2013

Arun Garg v. State of Punjab, (2004) 8 SCC 251

Beant Singh V. Union Of India &Ors 1977 SCC (1) 220

Bishandas v. State of Punjab, AIR1975 SC573

Chandrappa and Ors. v. State of Karnataka, (2007) 4 SCC 415

Chhotanney&Ors. v. State of UP, AIR 2009 SC 2013

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Chikkarange Gowda v. State of Mysore, AIR 1956 SC 731

Ganga Kumar Srivastava v. State of Bihar, (2005) 6 SCC 211

Ashok Hurra v Rupa Bipin Zaveri

Gedu Alias Parameswar Patra v. State of Orissa, SC on 13th July 2016

Himanchal&Anr. v. State of UP, SC on 18th August, 2015

Jahar Lal Das v. State of Orissa, 1991 (3) SCC 27

Janak Singh v. State of Uttar Pradesh, (1973) 3 SCC 50

Jethalal v. State of Gujarat, AIR 1968 Guj 163

Kaliram v. State of HP, AIR 1973 SC 277

Kans Raj v. State of Punjab, AIR 2000 SC 2324

KantilalMartajiPandor v. State of Gujarat, (2013) 8 SCC 781

Lokesh Kaushik&Ors. v. State, SC on 28th April, 2009

Mahmood v. State of UP, AIR 1976 SC 69

Mahavir Kumar &Ors. v. State, Delhi HC on 16th May, 2014

Md. AlimuddinAndOrs. v. State Of Assam MANU/GH/0052/1992

MeesalaRamakrishan v. State of A.P., (1994) 4 SCC 182

Mohinder Singh v. State of Punjab, AIR 1965 SC 79

NazukZahan v. Addl. DJ, AIR 1981 SC 1549

Pritam Singh v. State, AIR1950 SC 169

RajendraPralhadraoWasnik v. State of Maharashtra, (2012) 4 SCC 37

Ram Khelawan v. State of Madhya Pradesh, 2014 SCC Online Chh 29

R.J. Singh Ahluwalia v. State of Delhi, AIR 1971 SC 1552

Shailendra Kumar v. State of Chhattisgarh, on 11 Sept, 2009

Sharad BirdhichandSarda v. State of Maharsahtra, AIR 1984 SC 1622

Naveen Kohli v. Neelu Kohli AIR 2006 SC 1675

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Sanghamitra Ghosh vs Kajal Kumar Ghosh

Ashok v. Rupa, 1996 (2) HLR 512 (Guj).

BOOKS REFERRED

Mayne’s Treatise on Hindu Law & Usage (16th Ed.) Revised by Justice RanganathMisra
(New Delhi: Bharat Law House, 2008).
Batuk Lal, Law of Evidence, (21st Ed., Central Law Agency, 2016)

Dr. D.D. Basu, Commentary on Constitution of India, (8th Ed., Lexis Nexis, 2010).

Justice UL Bhatt, Lectures on Indian Evidence Act,(Universal LawPublication,2015)

MP Jain, Indian Constitutional Law, ( 7th Ed. , Lexis Nexis, 2016)

V.N. Shukla's, Constitution of India, (12th Ed. Eastern Book Company, India 2013).

DICTIONARIES REFERRED

nd
Aiyar, P RamanathaIyer, The Law Lexicon, (2 Ed., 2006)

th
Garner, Black’s Law Dictionary, (9 Ed., Thomas & West, U.S.A 1990).

WEBSITES REFERRED

www.manupatrafast.in(Lastvisited on 9thJanuary, 2019)

www.scconline.com(Lastvisited on 9thJanuary, 2019)

www.supremecourtofindia.nic.in(Lastvisited on 4thJanuary, 2019)

www.westlawindia.com(Lastvisited on 2ndJanuary, 2019)

LAW COMMISSION REPORT

 71ST Law Commission Report (Justice AR. Lakshmanan, Chairman)

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STATEMENT OF JURISDICTION

The respondent has appeared before the Honorable Supreme Court of India in response to the
Special Leave Petition preferred by the Appellant. u/a1 136

The memorandum for Respondents in the matters of Sarita Sharma v. Susheel set forth the
Facts, Contentions and Arguments present in this case.

1
Article 136 of The Constitution Of India 1950
136. Special leave to appeal by the Supreme Court
(1) 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) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order passed or made by any
court or tribunal constituted by or under any law relating to the Armed Forces

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STATEMENT OF FACTS

1. Petition was filed by the Sarita Sharma under Section 9 of the Sindhu Marriage
Act, 1953. Sarita’s husband (Susheel) has given the consent for passing a decree
and same was passed in 1955. In 1956 Susheel filed a petition under Section 13 of
the Sindhu Marriage Act, 1953 against Sarita for divorce on the ground that there
was no actual cohabitation had taken place between the parties.

2. That during cohabitation period Sarita was taken to the Susheel’s house by her
parents. She stayed there for two days and again turned out. By taking into
account this situation the District Court by the consent of the parties has passed
the decree under section 9 of the Sindhu Marriage Act, 1953. Because of this
Susheel was not entitled a divorce decree.

3. The Susheel filed an appeal for the decree of divorce to High Court under section
13 of the Sindhu Marriage Act, 1953.On an appeal, the case came before the
Division Bench of High Court, and was of the view that the consent decree could
not be termed to be collusive decree to disentitle the petitioner a decree under
section 9 of the Sindhu Marriage Act, 1953. And as per Section 23, if the Court
had tried to make conciliation and the same had been ordered, the Susheel was
entitled to get a decree of divorce.

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ISSUES RAISED

I. WHETHER THESLP FILED IS MAINTAINABLE?

A. THAT THE PETITIONER HAS NO REASON TO APPROACH THE SUPREME


COURT

B. . THAT THE MATTER DOES NOT INVOLVE SUBSTANTIAL QUESTION OF


LAW

C. THAT THE APRECIATION OF EVIDENCE IS PROPER

D. THAT GRAVE INJUSTICE HAS NOT BEEN DONE

II. WHETHER SUSHEEL IS ENTITLED TO DECREE OF DIVORCE OR


NOT?

III. CONSTITUTIONALITY OF SINDHU MARRIAGE ACT,1953

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SUMMARY OF ARGUMENTS

I. WHETHER THE APPEAL FILED IS MAINTAINABLE OR NOT.


It is humbly submitted before this Honorable Supreme Court that the petitioner has no
reason to approach the Honorable Supreme Court in the SLP because the present case
does not involve any substantial question of law, the High Court has considered the
entire gamut of evidence properly and there has been no grave injustice. Also the
Supreme Court will not interfere with the concurrent finding of the courts below unless
of course the findings are perverse or vitiated by error of law or there is gross
miscarriage of justice. SLP may not be brought to the Supreme Court by the appellant
when they are not covered by its jurisdiction. Therefore in the present case, present SLP
filed by appellant i.e. Sarita Sharma is not maintainable.

II.WHETHER SUSHEEL IS ENTITLED TO DECREE OF DIVORCE OR


NOT?

It is most humbly submitted before the Honorable Court that the Respondent is entitled
for the decree of divorce under the Sindhu Marriage Act, 1955. As the Hon’ble High
Court has considered and appreciated all the evidences on record and based on the
findings has come to a logical, reasonable and legal conclusion.

III. CONSTITUTIONALITY OF SINDHU MARRIAGE ACT,1953


It is most humbly submitted before the Honorable Court that the Sindhu Marriage
Act,1953 does not violate the constitution of India, and is thus valid. Also the Supreme
Court does not allow a point not raised before the courts below to be raised before itself
for the first time.2 Every error, even of law, does not justify interference under article
136. 3 In the present case there is no error of law and the same wasn’t raised in the
Hon’ble High Court, so the same is liable to not to be entertained.

2
NazukZahan v. Addl. DJ, AIR 1981 SC 1549
3
R.J. Singh Ahuluwalia v. State of Delhi, AIR 1971 SC 1552

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ARGUMENTS ADVANCED

I. WHETHER THE APPEAL FILED IS MAINTAINABLE OR NOT.


It is humbly submitted before this Honorable Supreme Court that the petitioner has no
reason to approach the Honorable Supreme Court by way of SLP [A] because the present
case does not involve any substantial question of law, [B] the High Court has considered
the entire gamut of evidence properly [C] and there has been no grave injustice [D].

A. THE PETITIONER HAS NO REASON TO PREFER A SPECIAL


LEAVE PETITION.

It is most humbly submitted before this Honorable Court that the Supreme Court will not
interfere with the concurrent finding of the courts below unless of course the findings are
perverse or vitiated by error of law or there is gross miscarriage of justice. Appeals may
not be brought to the Supreme Court by the appellant when they are not covered by the
jurisdiction of the Supreme Court of India.4

Appellate jurisdiction in Supreme Court can arise only through Article 133 or 136 of the
Constitution of India. A limited Appellate jurisdiction is conferred upon the Supreme
Court by Article 133 or 136. It is limited in the sense that the Supreme Court has been
constituted as a Court of appeal in exceptional cases where the demand of justice requires
interference by the highest court of the land5.There are two modes by which an appeal
from any judgment, final order or sentence in a criminal/ civil proceeding of a High Court
can be brought before the Supreme Court:

 Without the certificate of the High Court -


Firstly, an appeal lies to the Supreme Court if the High Court reverses the decision of
acquittal of the accused person and sentences him to death. Once it is established that the
High Court has applied the correct principles in reversing an order of acquittal, the
Supreme Court would not interfere with the High Court’s order of conviction or reassess
the evidence. The Supreme Court would only examine whether the High Court has
approached the question properly and applied the principles correctly. Secondly, if the
High Court has withdrawn for trial before itself any case, from any court subordinate to its

4
Ganga Kumar Srivastava v. State of Bihar, 2005 6 SCC 211
5
V.N Shukla, Constitution of India, (11th Ed., Eastern Book Company at Pg. 497)

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authority and has in such trial convicted the accused person and sentenced him to death, an
appeal shall lie in the Supreme Court from the order of the High Court 6.

 With the certificate of the High Court.–


An appeal lies to the Supreme Court from any judgment, final order or sentence in a
proceeding of a High Court if the High Court certifies under Article 134A that the case is
fit one for appeal to the Supreme Court. The High Court can issue a certificate in its own
motion or if an oral application is made by the aggrieved party immediately after passing
the judgment.7

In the present case8, none of the conditions under Article 133 are satisfied to entertain
this appeal. The other remedy available is under Article 136. The basic principles
underlying Special Leave to Appeal under Article 136 of the Constitution of India are:

The powers of this Court under Article 136 of the Constitution are very wide but in
appeals this Court does not interference with the concurrent findings of fact, save in
exceptional circumstances.

It is open to this Court to interfere with the findings of fact given by the High Court, if the
High Court has acted perversely or otherwise improperly.

It is open to this Court to invoke the power under Article 136 only in very exceptional
circumstances as and when a question of law of general public importance arises or a
decision shocks the conscience of the Court.

When the evidence adduced by the prosecution fell short of the test of reliability and
acceptability and as such it is highly unsafe to act upon it.

Where the appreciation of evidence and finding is vitiated by any error of law or
procedure or found contrary to the principles of natural justice, errors of record and
misreading of the evidence, or where the conclusions of the HC are manifestly perverse
and unsupportable from the evidence on record.5

The Supreme Court observed in the Pritam Singh v. State 9 , in explaining how the
discretion will be exercised generally in granting SLP: The wide discretionary power with
which this court is invested under it is to be exercised sparingly and in exceptional cases

6
Janak Singh v. State of Uttar Pradesh, (1973) 3 SCC 50 (Quoted in VN Shukla’s, Constitution of India, 12 th
Ed. At Pg. 530)
7
Article 134A, Indian Constitution
8
Ganga Kumar Srivastava v. State of Bihar, (2005) 6 SCC 211
9
AIR 1950 SC 169

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Page 12 of 22
only and as far as possible a more or less uniform standard should be adopted in granting
special leave in the wide range of matters which can come up before it under article
13610Circumscription must induce the Court to interfere with the decision under challenge
only if the extraordinary flaws or grave injustice or other recognized grounds are made
out.11

The SC does not interfere with the High Court’s findings unless that finding is clearly
unreasonable, unsatisfactory, perverse or manifestly illegal or is vitiated by some glaring
infirmity in the appraisal of evidence or record, or the High Court completely misdirects
itself in reversing the order lower court, or it results in gross miscarriage of justice.12

Also the Supreme Court does not allow a point not raised before the courts below to be
raised before itself for the first time. 13 Every error, even of law, does not justify
interference under article 136.14 In the present case there is no error of law.

In Mohammed Nawaz v. Emperor,15 the Privy Council pointed out the circumstances in
which appeal would interfere:

 Where the accused (appellant) has not been given the opportunity of being heard.

 Where the trial took place in the absence of the accused (appellant).

 Where the accused (appellant) is not allowed to call relevant witness.

 Where the tribunal was shown to have been corrupt or not properly constituted.

 Where the court fails to understand the proceedings because of language.

 Where the sentencing court had no jurisdiction to try the cases

10
Ibid
11
ShivanandGaurishankarBaswati v. Laxmi Vishnu Textile Mills, (2008) 13 SCC 323
12
State Of U.P v. Krishna Gopal &Anr AIR 1988 SC 2154
13
NazukZahan v. Addl. DJ, AIR 1981 SC 1549
14
R.J. Singh Ahuluwalia v. State of Delhi, AIR 1971 SC 1552
15
AIR 1941 PC 132 (Quoted in VN Shukla, Constitution of India 12th Ed at Pg.539)

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The present case does not satisfy any of the conditions mentioned above and appeal could
not be heard under these circumstances. Also, the court can interfere with the order of
acquittal only when:-

 The appreciation of evidence by the lower court is perverse or the conclusion drawn
by it cannot be drawn on any view of the evidence;

 Where the application of law is improperly done;

 Where there is substantial omission to consider the evidence existing on record;

 The view taken by the lower court is impermissible on the evidence on record; or

 If the order is allowed to stand, it will result in the miscarriage of justice.

In the instantaneous case, it is pertinent to note that, none of the circumstances above are
being fulfilled. The circumstances from which the conclusion to be drawn should be fully
established and should also be consistent with only one hypothesis i.e. the guilt of the
accused/appellant or gross injustice. 16 The circumstances should be conclusive and
proved. The court must be satisfied on vital points &not to leave any substantial doubt in
the mind of the court.17

In this present case the circumstances do not form a chain, such lacunae leaves a lot of
room for several possibilities and doubt.. Therefore, in light of the above mentioned
arguments stated; the petitioner/appellant has no strong ground to approach the Hon’ble
Supreme Court.

B. INVOLVES NO SUBSTANTIAL QUESTION OF LAW

It is most humbly submitted before this Honorable court that the present case does not
involve any substantial question of law. In Abraham Mallory Dillet re 18 , it was
observed that the Privy Council would not review proceedings unless it is shown that by a
disregard of the forms of legal process or some violation of the principles of natural justice
or otherwise, substantial or grave injustice has been done.

16
Ibid
17
Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2012) 4 SCC 37
18
(1887) 12 AC 459, (Quoted in State of Orissa v. Minaketan Patnaik, AIR 1953 Ori 160)

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The findings of the HC have to be judged by the yardstick of reason to ascertain whether
such findings were erroneous, perverse and resulted in miscarriage of justice, if the
conclusion of the court below can be supported by acceptable evidence, the SC will not
exercise the discretion to interfere with the decision and if the two views are possible, the
view in the favor of the accused has been accepted.19

Also Supreme Court stated that it must nonetheless be emphasized that whether a chain is
complete or not would depend on the facts of each case emanating from the evidence and
no universal yardstick should ever be attempted.20

C. APPRECIATION OF EVIDENCE IS PROPER

It is most humbly submitted before this Honorable Court that the evidence is considered
properly in the present case. Also SLP does not concern itself with the weight of evidence,
or the conflict of evidence or with inferences drawn from evidence or with questions as to
corroboration or contradictions of testimony or as to whether there was sufficient evidence
to satisfy the burden of proof21.

The court does not allow facts to be reopened or act as a court to review evidence. 22 The
conduct of the deceased of pointing a finger towards the accused does not prove anything.
There is no eye witness to show that the accused have administered the poison. PW2 has
only heard shrieks and gave evidence which was the aftermath of the main alleged
incident, giving rise to suspicion. There are series of decisions holding that no one can be
convicted on the basis of mere suspicion, however, strong it may be. 23 In cases denying on
circumstantial evidence courts should safeguard themselves against the danger of basing
their conclusions on suspicions how so ever strong.24

In the present case, the court would not grant SLP merely because the finding of fact
challenged as erroneous or on the ground that the Supreme Court would have come to a
different conclusion upon the evidence admitted.25

The HC gave its decisions based on evidences; the principles of natural justice were
followed. There are no facts to show that the accused was not given adequate opportunity, the
procedure followed was the one given in the relevant laws, and there is no issue as to the
interpretation of law. The order was passed keeping in mind the evidences and facts on
record.

19
Sukbir Singh v. State of Haryana, AIR 2002 SC 1168
20
Ujagar Singh v. State of Punjab, (2007) 13 SCC 90,
21
M.P. Jain, Indian Constitutional Law (7th Ed. Lexis Nexis, 2016 at Pg. 174)
22
Mohinder Singh v. State of Punjab, AIR 1965 SC 79
23
Aruna Chadha v. State of NCT Delhi, Cri. Rev. No. 305/2013
24
Palvinder Kaur v. State of Punjab, 1953 Cr.LJ 154
25
Pritam Singh v. State, AIR 1950 SC 169

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It is a well settled practice of the Supreme Court that except where there has been an
illegality or an irregularity of procedure resulting in the absence of a fair trial or gross
miscarriage of justice, the SC does not permit a third review of evidence with regard to
questions of facts in cases in which two courts of fact have appreciated and assessed the
evidence with regard to such question.26

D. GRAVE INJUSTICE HAS NOT BEEN DONE


It is most humbly submitted before this Hon’ble Supreme Court that there is no grave
injustice. Accordingly the HC has appreciated the evidence and the facts on record and on the
basis of settled law and principle has come to a logical conclusion. It is also pertinent to note
that the Conduct of appellant is particularly important in a case, like the one in hand.27 It also
cannot be disputed that when we take into account the conduct, her conduct must be looked at
in its entirety.28

A law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under
the fault theory, guilt has to be proved; divorce Courts are presented with concrete instances
of human behavior as bring the institution of marriage into disrepute.29 Once the marriage has
broken down beyond repair, it would be unrealistic for the law not to take notice of that fact,
and it would be harmful to society and injurious to the interest of the parties. Where there has
been a long period of continuous separation, it may fairly be surmised that the matrimonial
bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie, by
refusing to sever that tie, the law in such cases does not serve the sanctity of marriage; on the
contrary, it shows scant regard for the feelings and emotions of the parties. Public interest
demands not only that the married status should, as long as possible, and whenever possible,
be maintained, but where a marriage has been wrecked beyond the hope of salvage, public
interest lies in the recognition of that fact. Since there is no acceptable way in which a spouse
can be compelled to resume life with the consort, nothing is gained by trying to keep the
parties tied for ever to a marriage that in fact has ceased to exist. Human life has a short span
and situations causing misery cannot be allowed to continue indefinitely. A halt has to be
called at some stage. Law cannot turn a blind eye to such situations, nor can it decline to give
adequate response to the necessities arising there from.30

Flight from justice and its analogous conduct; have always been deemed indicative of a
consciousness of fault/guilt. Concealment, related conduct are admissible as evidence of
consciousness of guilt and thus of guilt itself.31

26
Chikkarange Gowda v. State of Mysore, AIR 1956 SC 731
27
Sec. 8, IEA 1872
28
ChandrakantGanpatSovitkar and Anr. v. State of Maharashtra, 1974
29
71st Report of the Law Commission of India
30
Supra, pages 292 – 293.
31
Prof. Arthur Best, Wigmore on Evidence,(Aspen Publishers; 13-Volume Ed .December 31, 1995 Pg. 345)

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The Supreme Court does not interfere with the exercise of discretionary power by the High
Court merely because two views are possible on the facts of the case. 32 An appellate court,
however, must bear in mind that the fair presumption and appreciation of material on record
to parties under the fundamental principle of jurisprudence33.

Thus in the light of all the cases cited and the evidence produced we can conclude that in
these cases what the court has to see34 is “interest of justice “and ‘Substantial question of
law” the interest of justice demands that the court should protect the respondent.

Therefore the present does not have jurisdiction to be heard at the Apex court.

32
Beant Singh V. Union Of India &Ors 1977 SCC (1) 220
33
Chandrappa and Ors. v. State of Karnataka, (2007) 4 SCC 415
34
MANU/SC/0550/1997 : (1997) 7 SCC 156; Rajiv Jassi v. State of Himachal Pradesh II (2004) DMC 683

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II.WHETHER SUSHEEL IS ENTITLED TO DECREE OF DIVORCE OR


NOT?

It is most humbly and respectfully submitted before this Honorable Court that the
institution of marriage has broken down beyond repair between the parties in the case
at hand and thus, the parties are entitled to decree of Divorce. Also, in the case of
Naveen Kohli v. Neelu Kohli 35 this court recommended to the Union of India to
seriously consider bringing an amendment in the Hindu Marriage Act, 1955
incorporate irretrievable breakdown of marriage as a ground for the grant of divorce.
In view of the above, the Law Commission of India suomotu took up the study of the
subject. The Commission examined the extant legislations as well as a number of
judgments of the Supreme Court and High Courts on the subject and is of the view
that “irretrievable breakdown of marriage” should be incorporated as another ground
for granting divorce under the provisions of the Hindu Marriage Act, 1955 and the
Special Marriage Act, 1954. The Court before granting a decree for divorce on the
ground that the marriage has irretrievably broken down should also examine whether
adequate financial arrangements have been made for the parties and children.

‘Irretrievable breakdown of marriage’, on the other hand, is a ground which the Court
can examine and if the Court, on the facts of the case, comes to the conclusion that the
marriage cannot be repaired/saved, divorce can be granted. The grant of divorce is not
dependent on the volition of the parties but on the Court coming to the conclusion, on
the facts pleaded, that the marriage has irretrievably broken down, also is pertinent to
note that in the case at hand, the Hon’ble High Court has considered and appreciated
all the facts, pleadings, and relationship of the parties before coming to a conclusion
of granting divorce between the parties.

 Irretrievable breakdown of marriage-


However, before taking the ground of ‘Irretrievable breakdown of marriage’ it shall
be relevant and important to understand the foundation, meaning and Scope of the
same.

The foundation of a sound marriage is tolerance, adjustment and respecting one


another. Tolerance to each other’s fault to a certain bearable extent has to be inherent
in every marriage. Petty quibbles, trifling differences should not be exaggerated and
magnified to destroy what is said to have been made in heaven. All quarrels must be
weighed from that point of view in determining what constitutes cruelty in each
particular case and always keeping in view the physical and mental conditions of the
parties, their character and social status. A too technical and hypersensitive approach

35
AIR 2006 SC 1675

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would be counter-productive to the institution of marriage. The Courts do not have to
deal with ideal husbands and ideal wives. It has to deal with particular man and
woman before it. 36

Even if the facts of the case at hand are looked into, after the wife filed a petition for
restitution of conjugal rights u/s 9, and the husband giving consent to cohabit with the
wife and consequently giving the wife and the marriage a second chance, but due to
no willingness and reasons best known to the wife, she left the matrimonial house
after the conjugal decree passed by the district court by mutual consent of the parties
within two days the wife left the house, the husband waited for a year before filing a
petition for a decree of divorce under section 13 of the Hindu Marriage Act,1955. By
the act of the respondent, it is clear on the very face of record and otherwise that the
Husband/Respondent was always ready and willing, but due to the acts of the
Appellant/Wife the institution of marriage has irretrievably broke down between the
parties and this ground alone is sufficient for a grant of decree of Divorce under the
Hindu Marriage and also keeping the wellbeing of the parties in mind, which is
important for the society at large.37

It shall also be relevant to bring into light that, various High Courts have granted
divorce with a view of ‘Irretrievable breakdown of marriage’ in a catena of
judgements, to mention some;

In GeetaMullick v. Brojo Gopal Mullick 38 the Calcutta High Court held: “In our
considered opinion, the marriage between the parties can not be dissolved by the trial
Court or even by the High Court only on the ground of marriage having been
irretrievably broken down, in the absence of one or more grounds as contemplated
under section 13(1) of the Hindu Marriage Act, 1955.”39

When the court finds in facts as well as from talks of resettlement or reconciliation
between parties that there was no possibility of reunion between husband and wife
and refusal of decree of divorce would only prolong the agonies of the spouses, it can
dissolve the marriage on this ground. 40

36
Mayne’s Treatise on Hindu Law & Usage (16th Ed.) Revised by Justice RanganathMisra (New Delhi: Bharat
Law House, 2008), page 292.
37
See, Facts of the Case
38
AIR 2003 Cal. 321.
39
Ibid.
40
Ashok v. Rupa, 1996 (2) HLR 512 (Guj).

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In Kanchan Devi v. Pramod Kumar Mittal 41 , however, the Supreme Court held:
“…the marriage between the appellant and the respondent has irretrievably broken
down and that there was no possibility of reconciliation, we in exercise of our powers
under Art. 14242 of the Constitution of India hereby direct that the marriage between
the appellant and the respondent shall stand dissolved by a decree of divorce.

In Samar Ghosh vs Jaya Ghosh4323 the Supreme Court referred to the 71st Report
of the Law Commission of India on "Irretrievable Breakdown of Marriage" with
approval as follows:
“90. We have examined and referred to the cases from the various countries. We find
strong basic similarity in adjudication of cases relating to mental cruelty in
matrimonial matters. Now, we deem it appropriate to deal with the 71st Report of
the Law Commission of India on "Irretrievable Breakdown of Marriage".

It is now a settled principle that restricting the ground of divorce to a particular


offence or matrimonial disability, causes injustice in those cases where the situation is
such that although none of the parties is at fault, or the fault is of such a nature that the
parties to the marriage do not want to divulge it, yet such a situation has arisen in
which the marriage cannot survive. The marriage has all the external appearances of
marriage, but none in reality.
As is often put pithily, the marriage is merely a shell out of which the substance is
gone. In such circumstances, it is stated, there is hardly any utility in maintaining the
marriage as a facade, when the emotional and other bonds which are of the essence of
marriage have disappeared.

“Once the parties have separated and the separation has continued for a
sufficient length of time and one of them has presented a petition for divorce, it
can well be presumed that the marriage has broken down.44 The court, no doubt,
should seriously make an endeavour to reconcile the parties; yet, if it is found that the
breakdown is irreparable, then divorce should not be withheld. The consequences of

41
AIR 1996 SC 3192.

42
Article 142 - Constitution Of India
142. Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc ( 1 ) The Supreme
Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing
complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be
enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by
Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe
(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects
the whole of the territory of India, have all and every power to make any order for the purpose of securing the
attendance of any person, the discovery or production of any documents, or the investigation or punishment of
any contempt of itself

43
(2007) 4 SCC 511.
44
71st Law Commission Report

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preservation in law of the unworkable marriage which has long ceased to be effective
are bound to be a source of greater misery for the parties.” (Emphasis added)
Similarly, in Sanghamitra Ghosh vs Kajal Kumar Ghosh theSupreme Court while
referring to its earlier decision in Ashok Hurra v Rupa Bipin Zaveri , also reproduced
some excerpts from the aforesaid 71st Report of the Law Commission

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III. CONSTITUTIONALITY OF SINDHU MARRIAGE ACT,1953

It is humbly submitted before the Hon’ble Court, that in a catena of judgments this Hon’ble
has reiterated the stand that does not allow a point not raised before the courts below to be
raised before itself for the first time.45 Every error, even of law, does not justify interference
under article 136.46 In the present case there is no error of law, prima facie or otherwise.
Even if the Petitioners in the present petition contend before the Hon’ble Court that the Act is
unconstitutional, they hadn’t contended the same before the Hon’ble High Court and
therefore the same plea cannot be taken in the present Special Leave Petition, consequently
which make the SLP without a substantial question of law making it futile in nature and thus,
on this ground alone the present petition is liable to be dismissed.

45
Nazuk Zahan v. Addl. DJ, AIR 1981 SC 1549
46
R.J. Singh Ahuluwalia v. State of Delhi, AIR 1971 SC 1552

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PRAYER

Wherefore, in the lights of facts stated, issues raised, authorities cited and arguments
advanced, it is most humbly prayed and implored before the Honorable Court, that it may be
graciously pleased to adjudge and declare that -

 The Special Leave Petition preferred by the Appellant be dismissed.

 Uphold the judgment of the Hon’ble High Court.

And Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests of
Justice, Fairness, and Equity& Good Conscience.

For This Act of Kindness, the Respondent Shall Duty Bound Forever Pray.

Date: ……………………
Sd/-

Place …………………
(Counsel for Respondent)

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