IN THE MOOT FAMILY COURT OF ORISSA

CIVIL APPEAL NO. 2019

PETITION UNDER SECTION 13 (1)(ia) OF HINDU

MARRIAGE ACT,1955

KUMAR SINGH...................................PETITIONER

-VERSUS-

REKHA SINGH.....................................RESPONDENT

UPON THE SUBMISSION TO

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 TABLE OF CONTENTS

DESCRIPTIONS PAGE NO.

1. LIST OF ABBREVIATIONS.........................Pg.3
2. INDEX OF AUTHORITIES...........................Pg.4 to 6
3. STATEMENT OF JURISDICTION...............Pg.7
4. STATEMENT OF FACTS.............................Pg.8
5. ISSUES TO BE RAISED...............................Pg.9
6. ARGUEMENTS ADVANCED......................Pg.10 to 13
7. ISSUES TO BE DISCUSSED........................Pg.14 to 19
8. PRAYER.........................................................Pg.20

2
 LIST OF ABBREVIATIONS

AIR All India Reporter

SCC Supreme Court Cases

SC Supreme Court

Cr.Pc Code Of Criminal Procedure

Sec. Section

U/S Under Section

E.d Edition

V. Volume

& And

Anr. Another

HC High Court

Ors. others

P Page

CriLJ/CrLJ Criminal Law Journal

Jcr Journal Citation Reports

Cal Calcutta

i.e That is

CWN Calcutta Weekly Notes

DMC Divorce and Matrimonial cases

Jhr Jharkhand

F.I.R First Information Report

3
 INDEX OF AUTHORITIES

 Russel v. Russel
 Abha Agarwal v. Sunil Agarwal
 Ranjan Vasant Revankar v. Shobha Rajan Revankar
 G.V.N Kameswara Rao v. G.Jabilli
 Tapan Kumar Chakraborty v. Smt Jyotsna Chakraborty
 R.A nand v. P.Indu
 Meena Jha v. Bipin Kumar Jha
 Annapurna Ganguly v. Dipak Ganguly
 Naveen Kohli v. Neelu Kohli
 Narendra v. K.Meena
 Prabir Kumar Das v. Papiya Das

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 BOOKS REFERENCES

 Hindu Law By Mitra 3rd Edition

 Principles Of Hindu Law By Noshirvan H. Jhabvala
 Code of criminal procedure By R.V Kelkar Student’s Edition
 Hindu Law By Mulla 23rd Edition
 Modern Hindu Law By Ramesh Chandra Nagpal
 The Spirit Of Hindu Law by Donald R.Davis
 Mayne’s Treatise on Hindu Law and Usage By John D.Mayne
 Hindu Law: Beyond Tradition and Modern
 Code Of Criminal Procedure 1974 By Ratanlal & Dhirajlal’s
 Code Of Criminal Procedure By Swamys
 Hindu Law By N.R Ragharao
 Modern Hindu Law By Paras Diwan
 Modern Hindu Law By U P D Keshari
 Hindu Law By B.M Gandhi

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INTERNET SOURCES

 www.indiankanoon.com
 www.scc.com

 www.google.com
 www.lawctopus.com
 Wikipedia, the free online Encyclopedia
 www.manupatra.com

STATUTES REFFERED

o Hindu Marriage Act,1955

o Hindu Adoption and Maintenance Act,1956
o Family Court’s Act,1984
o Code Of Criminal Procedure 1974

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 STATEMENT OF JURISDICTION

The petitioner has approached this Honourable family court of

Cuttack, Odisha Under Section 7 of Family Courts Act, 1984.

7
 STATEMENT OF FACTS

‘Kumar Singh’ got married to ‘Rekha’ on 02.06.2013 as per Hindu

rites and customs at Cuttack. After their marriage, they were leading a
happy conjugal life. After one year of their, marriage, the behaviour
of ‘Rekha’ was changed towards her husband and the family
members of her husband . She used to insist ‘Kumar Singh’ to leave
separately to which her husband did not agree.

On 02.06.2015, she left the matrimonial home with all her

belongings and ornaments. Being failed in all his attempts to bring
back ‘Rekha’ , ‘Kumar Singh’ lodged F.I.R on 12.06.2015 before the
concerned P.S about the incident. However police adviced ‘Kumar
Singh’ to take shelter before a competent court.

On 16.06.2015 ‘Kumar Singh’ filed a petition for ‘Divorce’ on the

grounds of desertion and cruelty. In reply, ‘Rekha’ refuted the
allegations and contended that she was disliked by ‘Kumar Singh’ due
to her colour.

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 ISSUES TO BE RAISED

Whether application for obtaining decree of divorce is

maintainable on the ground of cruelty committed by the
wife on the husband and get in separated unduly from her
matrimonial home?

9
ARGUEMENTS ADVANCED:
MOST RESPECTFULLY SHEWETH
Whether application for obtaining decree of divorce is maintainable on the ground of
cruelty committed by the wife on the husband and get separated unduly from her
matrimonial home?

It is most humbly submitted before this Honourable Court that, the Petition filed by the
petitioner (Kumar Singh) is maintainable.

That it is submitted for the appreciation of the Honourable court that, there has been
continuous and repeated efforts taken by the husband and the family members, to reconcile
the matter and to save guard the marriage. After one year of their marriage , the behaviour of
‘Rekha’ (respondent) was changed towards her husband and her in- laws. She was forcing
her husband to get separated from their parents. Basically Kumar Singh get frustrated and he
went into the mental trauma which turns to mental cruelty. He filed a divorce petition on the
grounds of cruelty.

DIVORCE :

Divorce is a process of terminating a marriage or martial union. Divorce usually entails the
cancelling or reorganizing of the legal duties and responsibilities of marriage, thus dissolving
the bonds of matrimony between a married couple under the rule of law of the particular
country or state. Divorce laws vary considerably around the world, but in most countries
divorce requires the sanction of a court or other authority in a legal process, which may
involve issues of distribution of property, child custody, alimony (spousal support), child
visitation / access, parenting time, child support, division of debts, and separation from
parents.
So according to Hindu Marriage Act, 1955 either the husband or the wife, be dissolved the
marriage on the decree of divorce on the grounds mentioned :
Section 13 of Hindu Marriage Act 1955:
DIVORCE

(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—

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 (i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with
any person other than his or her spouse; or

(ia) has,after the solemnisation of the marriage, treated the petitioner with cruelty; or

(ib) has deserted the petitioner for a continuous period of not less than two years
immediately preceding the presentation of the petition; or

(ii) has ceased to be a Hindu by conversion to another religion; or

(iii) has been incurably of unsound mind, or has been suffering continuously or
intermittently from mental disorder of such a kind and to such an extent that the
petitioner cannot reasonably be expected to live with the respondent.

Explanation .—In this clause,—

(a) the expression “ mental disorder” means mental illness, arrested or incomplete
development of mind, psychopathic disorder or any other disorder or disability of
mind and includes schizophrenia;
(b) the expression “ psychopathic disorder” means a persistent disorder or disability of
mind (whether or not including sub-normality of intelligence) which results in
abnormally aggressive or seriously irresponsible conduct on the part of the other
party, and whether or not it requires or is susceptible to medical treatment; or]
(iv) has [***] been suffering from a virulent and incurable form of leprosy; or
(v) has [***] been suffering from venereal disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(vii) has not been heard of as being alive for a period of seven years or more by those
persons who would naturally have heard of it, had that party been alive; [***]

Explanation. —In this sub-section, the expression “ desertion” means the desertion of the
petitioner by the other party to the marriage without reasonable cause and without the
consent or against the wish of such party, and includes the wilful neglect of the petitioner
by the other party to the marriage, and its grammatical variations and cognate expressions
shall be construed accordingly.[***]

(1A) Either party to a marriage, whether solemnised before or after the commencement of
this Act, may also present a petition for the dissolution of the marriage by a decree of divorce
on the ground—

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 (i) that there has been no resumption of cohabitation as between the parties to the
marriage for a period of [one year] or upwards after the passing of a decree for
judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the
marriage for a period of [one year] or upwards after the passing of a decree for
restitution of conjugal rights in a proceeding to which they were parties.]
(2) A wife may also present a petition for the dissolution of her marriage by a decree of
divorce on the ground,—
(i) in the case of any marriage solemnised before the commencement of this Act,
that the husband had married again before such commencement or that any other
wife of the husband married before such commencement was alive at the time of
the solemnisation of the marriage of the petitioner: Provided that in either case the
other wife is alive at the time of the presentation of the petition; or
(ii) that the husband has, since the solemnisation of the marriage, been guilty of rape,
sodomy or [bestiality; or]
(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956
(78 of 1956), or in a proceeding under section 125 of the Code of Criminal
Procedure, 1973 (2 of 1974) [or under the corresponding section 488 of the Code
of Criminal Procedure, 1898 (5 of 1898)], a decree or order, as the case may be,
has been passed against the husband awarding maintenance to the wife
notwithstanding that she was living apart and that since the passing of such decree
or order, cohabitation between the parties has not been resumed for one year or
upwards; or
(iv) that her marriage (whether consummated or not) was solemnised before she
attained the age of fifteen years and she has repudiated the marriage after attaining
that age but before attaining the age of eighteen years.]

Explanation. —This clause applies whether the marriage was solemnised before or after the
commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)

According to the facts they both got married as per the hindu rites and the customs :
Section 5 in the Hindu Marriage Act, 1955

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Conditions for a Hindu marriage:-
A marriage may be solemnized between any two Hindus, if the following conditions are
fulfilled , namely -
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party-—
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering from mental disorder of
such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity [***];]
(iii) the bridegroom has completed the age of [twenty-one years] and the bride, the age
of [eighteen years] at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the custom or
usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of
them permits of a marriage between the two;

Section 7 of Hindu Marriage Act 1955 :-

Ceremonies for a Hindu Marriage –
(1) A Hindu marriage may be solemnized in accordance with the customary rites and
ceremonies of either party thereto.
(2) Where such rites and ceremonies include the saptapadi (that is, taking of seven steps
by the bridegroom and the bride jointly before the sacred fire), the marriage becomes
complete and binding when the seventh step is taken.

Ceremonies for Hindu Marriage- Vary from community to community and from caste
to caste – Law is well settled that a Hindu man and woman who are major, are competent to
get married under the act and all that is insisted upon for the purpose of solemnization of
marriage is, it must be in accordance with customary rites and ceremonies of either party to
the marriage. India with its diversity in customs and rites has different modes and modalities
so far as ceremonies to be performed.

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ISSUES TO BE DISCUSSED :

Whether application for obtaining decree of divorce is maintainable on the ground of

cruelty committed by the wife on the husband and get in separated unduly from her
matrimonial home?

According to the facts of the case the husband filed a divorce petition Under Section 13
clause (1) sub-clause (ia) of Hindu Marriage Act, 1955 i.e. Cruelty.

CRUELTY means : In the legal context, "cruelty" is perhaps one of the most difficult
concepts to define. The definition of cruelty varies from case to case, and is influenced
variables such as the socio-economic status of the parties and the specific circumstances of
the marriage. Whereas physical cruelty is more visible and easy to define - you can't argue
much about the existence of a black eye or broken nose - mental cruelty is a far trickier beast
to pin down in a marriage.

The Supreme Court gives a few guidelines on what would be described as

cruelty in marriage:
 Unilateral decision of refusal to have intercourse for a considerable period without
any physical incapacity or valid reason may amount to mental cruelty.
 Unilateral decision of either husband or wife after marriage not to have a child may
amount to mental cruelty.
 Acute mental pain, agony and suffering to a degree that would not make it possible
for the parties to stay with each other.
 On a comprehensive appraisal of the entire matrimonial life, if it becomes clear that
the wronged party cannot reasonably be asked to put up with such conduct and
continue to live with the other party.
 Mere coldness of manner or lack of affection cannot amount to mental cruelty.
However, frequent rudeness of language, petulance, indifference and neglect could
reach a degree that makes married life for the other person intolerable.
 Feeling of deep anguish, disappointment, frustration in a spouse caused by the
conduct of the other over a long time may amount to mental cruelty.
 Sustained abusive and humiliating treatment calculated to torture or render miserable
the life of the spouse could amount to mental cruelty.

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  Sustained unjustifiable conduct affecting the physical and mental health of the spouse.
However, the treatment complained about and resultant apprehension must be very
grave, substantial and weighty.
 A husband undergoing sterilisation without medical reasons and without the consent
or knowledge of his wife may lead to mental cruelty.
 A wife undergoing sterilisation or abortion without medical reasons or without the
consent or knowledge of the husband may lead to mental cruelty.
 Sustained reprehensible conduct, studied neglect, indifference or total departure from
the normal standard of conjugal kindness, causing injury to mental health or deriving
sadistic pleasure could amount to mental cruelty.

The facts mentioned that the bad behaviour of wife (rekha) was changed towards her husband
and the family members of her husband. She always forcing her husband to leave
separately from their parents. But her husband (Kumar Singh) did not agree on this proposal.
So, according to section 13(1)(ia) of Hindu Marriage Act, 1955 these kinds of activities
done by rekha(wife) amounts to mental cruelty on husband.

Cruelty may be brutal or subtle. It may be physical or mental. It may be by words or by

gestures or even by mere silence. Cruelty refers to “conduct of such a character as to have
caused danger to life, limb or health (bodily or mental) or as to give rise to reasonable
apprehension of such danger.” (Russel v. Russel) 1

[Abha Agarwal v. Sunil Agarwal]2

Where there were instances showing misbehaviour and iill-treatment by wife towards her
husband and his family members, she forced him to live separately and did not look after him
during his ailment. Husband made all concessions to her and also lived separately with her to
lead peaceful matrimonial life with her but wife was not reconciling to any situation and went
away to her parents. The court held that the husband was entitled to decree for divorce.

Ranjan Vasant Revankar v. Shobha Rajan Revankar3 Where evidence available on

record showed and proved fact that respondent wife has treated the appellant husband with
cruelty as was sufficient to dissolve marriage, it was held the husband was entitled to get
decree of divorce

1
1924 A.C. 687
2
AIR 2000 All 377
3
AIR 1995 Bom 246, 1995 (1) BomCR 47, (1994)96 BOMLR 592,I (1995) DMC 532

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G.V.N. Kameswara Rao v. G. Jabilli 4

Where the petitioner-husband a double doctorate holder working in USA had alleged of wife
was not cordial and co-operative causing him mental cruelty. His wife returned back to
india and prevented his entry in the house of petitioner where he had come to persuade her to
return. The incidents brought out in the evidence would show that the relationship between
the parties was irretrievably broken, and because of the non co-operation and hostile attitude
of the wife, the petitioner was subjected to serious traumatic experience which could safely
be termed as cruelty and the husband was entitled to divorce.

Tapan Kumar Chakraborty vs Smt. Jyotsna Chakraborty 5

The case of the appellant husband is that the respondent wife always used to quarrel with
the husband and his parents without any just reason and she also used to insist upon the
petitioner to live separately from his family which the petitioner did not agree.

R.Anand vs P.Indu on 26 November, 20076

Within a short span of time after marriage, the couple started living at Manipal for a period of
eight months together, where he understood that the wife was interested in separating the
husband from his parents and insisted upon him to obtain properties from them. Since the
husband had to take up the examinations relating to his higher studies there in Manipal itself,
he sent his wife to her parents house in Chennai. Subsequently, the husband was compelled to
live in the house of the wife as "Veetu Mappillai'. Even though he got employment in Kerala,
he could not accept that appointment as Doctor, because the wife was pregnant by that time.
Subsequently, the wife sensing that fetus was a female one, she underwent abortion
voluntarily. The wife was instrumental in creating ill-will between the two families of the
spouses. The wife indulged in perpetrating mental cruelty to the husband. He was humiliated
by the wife, her parents and the brother-in-law of the husband.

Smt. Meena Jha vs Bipin Kumar Jha on 23 December, 2003 7

The case of the petitioner-husband (now respondent in this appeal), in brief, is that their
marriage was solemnized in accordance with Hindu religion and rites on 22.2.1990 at Bokaro

4
(2002) 2 SCC 296
5
AIR 1997 Cal 134
6
2008 (4) CTC 285
7
2004 (1) JCR 374 Jhr

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and the 'gauna' ceremony was performed in the month of November 1990 and his appellant-
wife came to her matrimonial home at Kiriburu, District-Singhbhum West in his company for
leading conjugal life and she did not find her matrimonial home to her liking as she hails
from a high family being the daughter of employee of Bokaro Steel Factory and her father
being General Secretary of the Employees Union of the said Factory and thereafter she
started maltreating him, his old father, ailing mother and other members of his family and she
was a woman of loose tamper and quarrelsome nature and he tolerated the cruel behaviour of
his wife with the hope that there shall be a change in her behaviour towards them and all
efforts made by him and his family members to keep her happy could be of no avail. It is
alleged that his appellant-wife used to tell that she has come to his family to rule and not to
serve them as she belongs to a high family and she is not accustomed of the way of life of a
middle class family of her husband and due to her continued cruel behaviour he suffered
mental torture and in the month of January 1991 she has left her matrimonial home without
informing anybody and went to her parent's house at Bokaro and she returned to her
matrimonial home in the month of May 1991 and from the first day of her arrival here she
started misbehaviour and maltreating all the inmates of his house and she asked him to
separate himself from the family and to start a separate establishment leaving his old parents.

Annapurna Ganguly vs Dipak Kumar Ganguly on 31 August, 1990 8

This appeal arises out of the husband's petition for divorce under the Hindu Marriage Act on
the grounds of desertion and cruelty. The petitioner Dipak Ganguly was married to the
respondent Annapurna Ganguly according to Hindu rites on 24th January, 1974 at Calcutta
and a son Ashoke alias Bapi, was born out of the wedlock after 21/2 years. Since the
marriage the respondent Annupurna lived in the matrimonial home till January 1982 when
she left the house and stayed away till the filing of the petition for divorce. During the period
between 1974 and January 1982 the respondent who is a woman of violent temperament,
nagged, abused and humiliated the petitioner in presence of other members of the family. She
failed and neglected to look after, the health and welfare of her husband, son and the mentally
retarded brother of the petitioner.

8
95 CWN 806, I (1992) DMC 88

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Naveen Kohli vs Neelu Kohli on 21 March, 2006 9

The appellant, Naveen Kohli got married to Neelu Kohli on 20.11.1975. According to the
appellant, the respondent is bad tempered and a woman of rude behaviour. After marriage,
she started quarrelling and misbehaving with the appellant and his parents and ultimately, the
appellant was compelled to leave the parental residence and started to reside in a rented
premises from May 1994. According to the version of the appellant, the respondent in
collusion with her parents got sufficient business and property transferred in her name.

Forcing separation from parents

With regard to allegations of cruelty in wife forcing husband to get separated from his
parents, the Bench observed: “In normal circumstances, a wife is expected to be with the
family of the husband after the marriage. She becomes integral to and forms part of the
family of the husband and normally without any justifiable strong reason; she would never
insist that her husband should get separated from the family and live only with her…. If a
wife makes an attempt to deviate from the normal practice and normal custom of the society,
she must have some justifiable reason for that and in this case, we do not find any justifiable
reason, except monetary consideration of the Respondent wife. In our opinion, normally, no
husband would tolerate this and no son would like to be separated from his old parents and
other family members, who are also dependent upon his income.”

Narendra vs K.Meena on 6 October, 2016 10

The Appellant husband had married the Respondent wife on 26th February, 1992. The case of
the Appellant was that the Respondent did not live happily with the Appellant even for a
month after the marriage. The reason for filing the divorce petition was that the Respondent
wife had become cruel because of her highly suspicious nature and she used to level
absolutely frivolous but serious allegations against him regarding his character and more
particularly about his extra-marital relationship. Behaviour of the Respondent wife made life
of the Appellant husband miserable and it became impossible for the Appellant to stay with
the Respondent for the aforestated reasons. Moreover, the Respondent wanted the Appellant
to leave his parents and other family members and to get separated from them so that the
Respondent can live independently; and in that event it would become more torturous for the

9
AIR 2004 ALL 1, II (2004) DMC 223
10
SCC (2016) 9 SC 1114 (455)

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Appellant to stay only with the Respondent wife with her such nature and behaviour. The
main ground was cruelty, as serious allegations were levelled about the moral character of the
Appellant.

SUPREME COURT JUDGEMENT

The Supreme Court of India in Narendra vs. K.Meena has held that persistent effort of the
wife to constrain her husband to be separated from the family constitutes an act of ‘cruelty’ to
grant divorce. The Bench comprising Justice Anil R. Dave and Justice L. Nageswara Rao
also held that leveling of absolutely false allegations with regard to extra-marital life and
repeated threats to commit suicide would also amount to ‘mental cruelty’. The Supreme
Court set aside a High Court judgment which had reversed the Trial court order granting
divorce to the husband on ground of cruelty.

Prabir Kumar Das v. Papiya Das 11

Date of Judgment: January 29, 2018

In a recent case, the Chhattisgarh High Court while allowing husband’s appeal for divorce
held that wife forcing the husband to get separated from his family which includes his old
aged ailing parents tantamount to cruelty under Section 13(1) (ia) of the Hindu Marriage Act,
1955.

In the case, the Family Court had dismissed the Appellant husband’s plea of divorce on the
ground of cruelty under Section 13(1) (ia) of the Hindu Marriage Act, 1955.

Aggrieved by the same, the Appellant husband approached the Chhattisgarh High Court.
Brief facts of the case are that the Appellant prayed for divorce as he alleged that respondent
was misbehaving with the appellant and his family members soon after the marriage and was
not willing to reside with him. The Appellant also alleged that during his absence in the
house, the respondent tried to assault/slap his mother by using obscene language. The
respondent also threatened to implicate the appellant in a false case. She categorically and
stoutly stated that she couldn’t live with the appellant and wants to be separate.

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29 JANUARY 2018

19
 PRAYER FOR RELIEF

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

Allow the petitioner’s plea for decree of divorce under section 13(1)(ia) of
the Hindu Marriage Act 1955.

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

PLACE: S/d.......................................

DATE: COUNSEL OF PETITIONER

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