IN THE COURT OF DISTRICT JUDGE, DELHI

UNDER HINDU MARRIAGE ACT 1955

IN THE MATTER OF

(Petitioner)
Vs.

(Respondent)

MEMORIAL SUBMITTED ON BEHALF OF RESPONDENT

COUNSELS FOR THE RESPONDENT

-Memorial submitted on behalf of Respondent-

 TABLE OF CONTENTS

Index of Authorities

o Cases
o Books and Websites

List of Abbreviations

Statement of Jurisdiction

Statement of Facts

Issues for Adjudication

Summary of Arguments

Arguments Advanced

Prayer

-Memorial submitted on behalf of Respondent-

 LIST OF AUTHORITIES

CASES

1. Bhagwan Dutt vs Kamla Devi And Anr on 17 October, 1974

2. Gobinda Rani Dasi vs Radha Ballabh Das on 5 July, 1910

3. Anupama Misra vs Bhagaban Misra on 1 November, 1971

4. Ms. Jordan Diengdeh vs S.S. Chopra on 10 May, 1985

5. Ayyalasomayajula Satyanandam v. Ayyalasomayajula Ushadevi, 1987 (1) ALT 335 (DB)

6. U.N. Satyanarayana vs U. Sharada And Anr. on 27 December, 2002

7. Madhusudan vs Smt. Chandrika on 22 March, 1975

-Memorial submitted on behalf of Respondent-

 BOOKS

HINDU LAW

HINDU MARRIAGE ACT 1955

CRPC

HINDU ADOPTION AND MAINTANCE ACT 1956

WEBSITES

www.advocatekhoj.com

www.vakilno1.com

www.lawyersclubindia.com

www.indiankanoon.org

www.disabilityindia.co.in

-Memorial submitted on behalf of Respondent-

 LIST OF ABBRIVATION

1. CRPC ……………………………………… CODE OF CRIMINAL PROCEDURE

2. & ……………………………………… AND

3. I.e …………………………………….... THAT IS

4. SEC …………………………………….... SECTION

5. U/S ………………………………………. UNDER SECTION

6. HMA ……………………………………..... HINDU MARRIAGE ACT

7. Can’t ………………………………………. CAN NOT

STATEMENT OF JURISDICTION
-Memorial submitted on behalf of Respondent-
The Petitioner has the honor to move this Court by way of filing a Divorce case on the ground of

fraud, unsoundness of mind under section 13 of Hindu Marriage Act, 1955. The present

memorandum sets forth the facts, contentions and arguments in the present case.

-Memorial submitted on behalf of Respondent-

 STATEMENT OF FACTS

1. The petitioner and respondent are husband and wife.

2. They married in February, 1978 as per Hindu rituals and ceremonies. Qualification of
petitioner is M.Sc.; Ph. d in social work and respondent is M.A in social work.

4. Before their marriage took place, the father of the respondent wrote to the father of petitioner
stating that his daughter had a bad attack of sun stroke which affected her mental condition for
some time .This fact could be checked from Broadmoor mental hospital or Dr. Aurica
Bhattacharya and that he should discuss the matter with the petitioner.

5. But the petitioner or his father did not check it further and marriage was solemnised.

6. Till March, 1981 two daughters were born out of this wedlock. In January 1983, the
respondent went to pune to attend the marriage of petitioner’s brother.

7. The petitioner took the respondent to Dr. Joseph Williams, (a Psychiatrist), for getting her
examined But Dr. Joseph Williams wanted some time for diagnosis and suggested that she
should stay on there for sometime more.

8. The petitioner left her there and came back to Delhi on March 11, 1983 alone.

9. The respondent felt that her husband wanted to build up case that she was of unsound mind
and she was being lured to walk into that trap. She did not visit Dr. Joseph Williams again and
two days later the respondent followed the petitioner but she went straightway to her parent’s
house in Delhi.

10. On March15, 1983 the petitioner wrote letter to the police asking for protection as feared
danger to his life from the respondent‘s parents and relatives.

11. On March 19, 1983 the respondent saw the petitioner at his house and meeting was held to
resolve the matter amicably.

12. After a brief meeting she left her matrimonial house for the reasons best known to her on
March 23, 1983, the respondent wrote to the petitioner complaining against his conduct and
-Memorial submitted on behalf of Respondent-
asking for money for the maintenance of self and daughters. The respondent also wrote to the
secretary of the ministry where the petitioner was serving that he had deserted her and had
treated her with extreme cruelty and asking for maintenance for her and her daughters but
nothing came out of that.

13. A third daughter was born on August 19, 1983.

14. The petitioner filed a petition on February 19, 1984 for annulment of his marriage with the
respondent or alternatively for divorce or the judicial separation. (The annulment was sort on the
ground of fraud, divorce, on the ground of unsoundness of mind and judicial separation on the
ground of cruelty.)

-Memorial submitted on behalf of Respondent-

 ISSUES RAISED

-I-

Whether the respondent commits any fraud with the petitioner as alleged?

-II-

Whether the petition for divorce filed by petitioner ought to be dismissed?

-III-

Whether the petitioner is entitled to get decree of judicial separation on the ground of cruelty?

-IV-

Whether the respondent is entitled to get maintenance?

-Memorial submitted on behalf of Respondent-

 SUMMARY OF ARGUMENTS

I. Whether the respondent commits any fraud with the petitioner as alleged?

No, the respondent has not committed any fraud with petitioner. At the time of marriage, the

Father of the respondent told everything about the medical condition of his daughter by

writing a letter to the father of petitioner. When the petitioner took the respondent to pune for

medical checkup, she resisted and left that place after dispersing of her husband from the

hospital. As she felt unsafe without his company and reacted the same way the petitioner

acted to her.

II. Whether the petition for divorce filed by petitioner ought to be dismissed.

Yes, the petition filed by the petitioner should be dismissed. As, according to section-5

and 11 of Hindu marriage act 1955 any marriage is voidable if at the time of marriage

anyone of the person is of unsound mind but it is clear that the respondent is not unsound

of mind from the fact that the respondent and the petitioner had three daughters since the

date of marriage. And if she was mentally ill till the date of petition filed then why didn’t

he file the petition before. And also no objection was there to him when had lived with her

for 5 years. But now he is acting neglecting towards her and wants judicial separation.

-Memorial submitted on behalf of Respondent-

III. Whether the petitioner is entitled to get decree of judicial separation on the ground of

cruelty.

No, as the section 12 of Hindu marriage act states that if in any marriage the person is

treated with cruelty he/had right to get judicial separation but in this case the husband is

not treated with any cruelty by his wife. Instead the wife went to the petitioner house for

the resolvement of the situation.

IV. Whether the respondent is entitled to get maintenance.

Yes, the petitioner is duty bound for his wife and daughters maintenance. The petitioner

has to pay maintenance to his wife and their daughters because he is able to pay

maintenances and according to Hindu adoption and maintenance act a Hindu wife

whether married before or after the commencement of this Act, shall be entitled to be

maintained by her husband during her life time and for her daughters till she gets married.

-Memorial submitted on behalf of Respondent-

 ARGUMENTS ADVANCED

I. Whether the respondent commits any fraud with the petitioner as alleged?

The definition of fraud stated in oxford dictionary is, ‘any wrongful deception intended to

result in financial or personal gain is when fraud is committed’.

Here fraud is not committed with petitioner as alleged. As, at the time of marriage the

time of marriage, the father of the respondent told everything about the medical condition

of his daughter by letter to the father of petitioner that states that his daughter had a bad

attack of sun stroke which affected her medical condition for some time and this fact

could be checked from Broadmoor mental hospital or Dr. Aurica Bhattacharya and that he

should discuss matter with petitioner.

The hon’ble court is requested to move upon the fact that acc to section-5 of

Hindu Marriage Act-1995 conditions of a Hindu Marriage are that at the time of

marriage, neither party (sub section-ii, a) is incapable of giving valid consent to its other

party about their unsoundness of mind and (b) i.e. capable of giving a valid consent that

suffering from mental disorder of such kind that becomes unfit for their marriage. But in

here the petitioner’s father was told everything about the medical condition of the

respondent and was advised to consult Dr. Aurica Bhattacharya. This clears the fact that

there is no hidden fact about the medical condition of the respondent. And everything

was cleared between the two parties before the marriage and respondent’s family made

full transparency about the respondent’s disorder.

-Memorial submitted on behalf of Respondent-

In the case of Madhusudan vs Smt. Chandrika on 22 March, 1975, the husband

(petitioner) alleged that the wife at the time of marriage was suffering from syphilis for

more than three years and that this fact was deliberately concealed by the wife and her

father and the husband's consent to the marriage was obtained by fraud within the

meaning of Section 12(1) (c) of the Act. It was also alleged that as the wife was suffering

from venereal disease in a communicable form for a period of more than three years. The

wife in her written statement denied that she was suffering or that she had ever suffered

from syphilis. The wife pleaded that she had actually no sexual intercourse before

the marriage. It was also pleaded that the husband and his relations had a quarrel with the

wife's parents at the time of marriage and that it was with great reluctance that the

husband and his parents took the wife to Jabalpur. It was further pleaded that the wife

was ill-treated in the husband's place and that later on some interested persons secretly

made false and defamatory allegations against her character which prejudiced the

husband. As judgment: It will thus see that the word "fraud" in matrimonial law has a

technical meaning. It does not include cases of misrepresentation or active concealment

even of material facts including (sic) (inducing?) consent of a party. Fraud, as already

stated, in the context; of annulment of marriage means such fraud which procures the

appearance without the reality of consent, i.e. where; there is no real consent at all. In our

opinion, the word "fraud" in Section 12(1) (c) of the Hindu Marriage Act must be

understood in the same sense. It is interesting to notice that Section 12(1) of this Act

although providing in clause (d) that the marriage can be annulled if the respondent was

at the time of the marriage pregnant by some person other than the petitioner, a ground

introduced in the English Law by Matrimonial Causes Act, 1937, does not provide that

-Memorial submitted on behalf of Respondent-

the marriage can be annulled simply on the ground that the respondent was at the time of

marriage suffering from venereal disease in a communicable form, a ground which was

also introduced in the English Law by the Matrimonial Causes Act, 1937.

And acc to the case of Nalini Kumari, Major vs K.S. Bopaiah, Major on 24 November,
2006, it is stated, that the fraudplayed by the respondent and her parents had enabled the
petitioner to claim, that, his marriage with the respondent be annulled under the
provisions of Section 12 of the Hindu Marriage Act, 1955, ('Act' for short) owing to the
presence of fraud factor. It is also stated, that in the presence of fraud, the arrangement
that had been made in inducing the petitioner to marry the respondent has turned out to be
voidable contract, capable of being declared as voidcompetent Court
may annul a marriage by decree of nullity of any marriage solemnized, whether before or
after the commencement of the Act, on the ground, that the marriage has not been
consummated owing to the impotence of the respondent; that the marriage is in
contravention of the condition specified in Clause (ii) of Section 5 of the Act; that the
consent of the petitioner or where the consent of the guardian in marriage of the
petitioner was obtained by force or by fraud as to the nature of the ceremony or as to any
material fact or circumstance concerning

Petitioner in his petition filed for annulment of marriage on the ground of fraud has stated
that the marriage between him and the respondent was solemnized on 8.3.1992 at
Gonikoppa as per the provisions of Hindu Law and according to the customs prevailing
in the community and after the marriage; a baby girl was born to them on 29.4.1993.

So, it is clear and conferred that the respondent never committed fraud with the petitioner.
And it’s only that the petitioner wanted to ignore her.

-Memorial submitted on behalf of Respondent-

II. WHETHER THE PETITION FOR DIVORCE FILED BY THE ETITIONER OUGHT

TO BE DISMISSED?

Yes, the petition filed by the petitioner should be dismissed. As, according to section-5

and 11 of Hindu marriage act 1955 any marriage is void if at the time of marriage anyone

of the person is of unsound mind but it is clear that the respondent is not unsound of mind

from the fact that the respondent and the petitioner had three daughters till the date of

marriage.

Under section 13 of Hindu marriage act, 1955, Divorce states that any marriage

solemnized, whether before or after the commencement of the 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-

1a. treated the petitioner with cruelty

2 has deserted the petitioner for a continuous period of not less than two years

immediately preceding the presentation of the petition

But in this case the respondent has not shown any cruelty and desertion during six years

of their marriage.

In the case of U.N. Satyanarayana vs U. Sharada And Anr. on 27 December, 2002,

The relationship of the parties is not disputed. The 1st petitioner as PW1 deposed that
ever since the marriage on 29-6-1986, the respondent was exhibiting peculiar behavior
with a flickering mind. After marriage, she came to know that he was suffering with it
since prior to the marriage and he was under the administration of anti-depression drug

-Memorial submitted on behalf of Respondent-

from his student days. He used to shout against everybody in the house and beat her by
using filthy language in a depressed state. She narrated the sequence of events referred in
the petition and further stated that it became impossible for her to lead marital life with
him or to live at his house. Therefore, she was compelled to leave to her parents' house
and educate her son. The respondent was made to work police arrested him and booked a
petty case covered by STC No. 669 of 2000 on the file of the IV Special Metropolitan
Magistrate. 7. The evidence given by PW1 reiterating the averments in the petition and
the further information furnished by her through evidence are amply establishing that the
respondent is suffering with Schizophrenia and mental illness and the disease reached a
stage due to which there is no possibility to cure it. Prior to the hearing of the matter, a
reconciliation effort was made by this Court. The 1st petitioner was also convinced and
she readily agreed to extend all possible help for the treatment of the respondent. The
father of the respondent, who is presently staying at Varanasi along with his wife, was
also secured to prevail on the respondent to agree for treatment and to take the medicines
regularly. But, his father after making all his efforts to get the disease of the respondent
treated, expressed his helplessness and his difficulty to remain at Hyderabad on account
of the sickness of his wife at Varanasi. 8. Section 13(1) (iii) of the Act reads as follows:
"Section 13. Divorce :--( 1) any marriage solemnized, whether before

The above Section provides for dissolution of the marriage by way of decree of
a divorce if one of the spouses has been incurably of unsound mind or has been suffering
continuously or intermittently from mental disorder of such a kind, which makes it
impossible for the other spouse to live with such person. The respondent is suffering with
Schizophrenia and according to the opinion of the medical experts it is in the aggravated
form and there is no possibility for cure. In this regard, we wish to refer to Concise
Medical Dictionary page No. 566 (Oxford Medical Publications 1980) wherein
'Schizophrenia' is described thus:

And In Ayyalasomayajula Satyanandam v. Ayyalasomayajula Ushadevi, 1987 (1)

ALT 335 (DB), a Division Bench of this Court in a case for divorce on the ground
of unsound mind observed that it is for the petitioner to establish either of
incurable unsoundness of the respondent or that the mental disorder is such a kind and to
-Memorial submitted on behalf of Respondent-
 such an extent that the other spouse cannot reasonably be expected to live with the
respondent.

So it is clear from the facts that the petition filed by the petitioner should be dismissed

as the petitioner had three daughters since the date of marriage. And if she was mentally
ill till

The date of petition filed then why didn’t he file the petition before. And also no
objection was there to him when had lived with her for 5 years. But now he is acting
neglecting towards her and wants judicial separation.

III. WHETHER THE PETITIONER ENTITLED TO GET THE DECREE OF JUDICIAL

SEPERARTION ON THE GROUND OF CRUELTY?

Judicial separation states that either party to a marriage, whether solemnized before or

after the commencement of Hindu marriage act, may present a petition praying for a

decree for judicial separation on any of the grounds specified in sub-section (1) of

Section 13 i.e. divorce, and in the case of a wife also on any of the grounds might have

been presented.

(2) Where a decree for judicial separation has been passed, it shall no longer be

obligatory for the petitioner to cohabit with the respondent, but the court may, on the

application by petition of either party and on being satisfied of the truth of the statement

made in such petition, rescind the decree if it considers it just and reasonable to do so.

-Memorial submitted on behalf of Respondent-

Sub-section 1 of (13) divorce states that after the solemnization of the marriage, treated

the petitioner with cruelty.

Both the section states that only when the petitioner is treated with cruelty, Judicial

separation is granted and in this case no cruelty was seen by the wife i.e. respondent on

husband i.e. petitioner.

According to the case of Ms. Jordan Diengdeh vs S.S. Chopra on 10 May, 1985
Civil Code- Necessity of-Emphasized. Indian Divorce, Act, 1869-Ss. 18, 19 and 22-
Petition by wife-Allegation of impotence of husband-Nullity
of marriage or judicial separation sought-High Court rejecting prayer for nullity, but
granting judicial separation on account of cruelty-Validity of order-Supreme Court
holding irretrievable break-down of marriage. Hindu Marriage Act, 1955 ss. 10 and 13B-
Special Marriage Act, 1954-Ss. 23 to 28-Parsi Marriage and Divorce Act, 1936-Ss. 31 to
34-Dissolution of Muslim Marriage Act, 1939-S. 2-Grounds for dissolution of
marriage not uniform- Necessity for uniform Civil Code-Stressed. HEADNOTE: The
petitioner belonged to the 'Khasi Tribe' of Maghalaya and was born and brought up as a
Presbytarian Christian. She is now a member of the Indian Foreign Service. The
respondent-husband is a Sikh. They were married under the Indian
Christian Marriage Act 1872. The petitioner filed a petition in 1980, for declaration of
nullity of marriage or judicial separation under ss. 18, 19 and 22 of the Indian
Divorce Act, 1869, on the ground of the impotence of her husband. A Single Judge of the
High Court rejected the prayer for declaration of nullity of marriage. HELD: (1) A
comparison of the relevant provisions of the Christian Marriage Act 1872, Hindu
Marriage Act 1955, Special Marriage Act 1954, Parsi Marriage and Divorce Act 1936,
Dissolution of Muslim Marriage Act, 1939, show that the law relating
to judicial separation, divorce and nullity of marriage is far, far from uniform. [717 B] (2)
Under the Hindu Marriage Act, a decree for the judicial separation may be followed by a
decree for the dissolution of marriage on the lapse of 705separation. Under
the Hindu Marriage Act, sec. 10 provides for judicial separation. It enables either party to

-Memorial submitted on behalf of Respondent-

a marriage to seek judicial separation on any of the grounds specified in sec. 13(1) and in
the case of a wife also on any of the grounds specified in sub-sec. 2 of sec. 13. Section 11
provides for a declaration that a marriage is a nullity if it contravene as any one of the
conditions specified in clauses (i), (iv) and (v) of sec. 5. Sec. 5 (i) requires that neither
party has a spouse living at the time of the marriage. Sec. 5 (iv) requires that the parties
are not within the degrees of prohibited relationship, unless the custom or usage
governing each of them permits of marriage between the two. Sec. 5(v) requires that 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 12 further provides that a marriage is
voidable and may be annulled if (a) a marriage has not been consummated owing to the
impotence of the respondent; or (b) a marriage is in contravention of the conditions
should be dissolved. If the provisions of the Hindu Marriage Act are compared with the
provisions of the Indian Divorce Act, it will be seen that apart from the total lack of
uniformity of grounds on which decrees of nullity of marriage, divorce or judicial
separation may be obtained under the two Acts, the Hindu Marriage Act contains a
special provision for a joint application by the husband and wife for the grant of a decree
of divorce by mutual consent whereas the Indian Divorce Act contains no similar
provision. Another very important difference between the two Acts is that under
the Hindu Marriage Act, a decree for judicial separation may be followed by a decree for
the dissolution of marriage on the lapse of one year or upwards from the date of the
passing of a decree for judicial if meanwhile there has been no resumption of
cohabitation. There is no corresponding provision under the Indian Divorce Act and a
person obtaining a decree for judicial separation will have to remain content with that
decree.

And according to the case of Anupama Misra vs Bhagaban Misra on 1 November,

1971

It is clear from the narration of the facts given above that if the Misc. Case No. 1/63
succeeds and the decree for judicial separation is set aside, then the decree for divorce
cannot be granted on the ground that there has been no resumption of cohabitation as
between the parties for a period of two years or upwards after passing of the decree
-Memorial submitted on behalf of Respondent-
for judicial separation in a proceeding to which they were parties. The proceedings
for judicial separation must be restored to its pre-trial stage and the appellant must be
given an opportunity to contest the same. I will, therefore, deal with

The appellant's letter to her lawyer Sri P.C. Misra requesting the latter not to proceed
further in the case is dated 7-9-61 and has been proved as Ext. 1. It recited that her
husband, the respondent, approached her on 29-8-61 and again on 2-9-61 and broached
the subject of compromising the proceeding regarding judicial separation. It was settled
between them that the judicial separation proceeding should be decreed and thereafter he
will live with her as her husband in amity as before, and that she believed in this
assurance of her husband and having complete faith in such assurance she did not contest
the proceeding for judicial separation any further. This letter, Ext. 1, was filed by the
appellant

The petitioner wants to rescind the decree for judicial separation parsed in O. S. 3/58, on
the ground inter alia, that it was not passed after consideration of all the matters provided
in Section 23 of the Act. The lower court has refused to rescind holding that the petitioner
has failed to prove that there was a resumption of marital relations between her and her
husband subsequent to the passing of the decree for judicial separation, but she has not
been able to establish it. But the decree for judicial separation having been passed
without being satisfied as to the matters specified divorce, made under Section 13(1),
Clauses (i) to (viii). Clause (viii) has been deleted by amendment and re-enacted as Sub-
section (1-A) of that section of the Hindu Marriage Act. The grounds for divorce, as
already stated, are (i) that the appellant is living in adultery, that is to say, has committed
adultery even after passing of the decree for judicial separation, and (ii) that there has
been no resumption of cohabitation as between the parties to the marriage for a period of
two years or upwards after the passing of the decree for judicial separation in a
proceeding to which they were parties.

Hence the petition for judicial separation should be cancelled because in this case the

husband is not treated with any cruelty by his wife. Instead the wife went to the petitioner

house for the resolvement of the situation.

-Memorial submitted on behalf of Respondent-
IV. Whether the respondent is entitled to get maintenance?

The Hindu adoption and maintenance states that (1) A Hindu wife whether married before

or after the commencement of this Act, shall be entitled to be maintained by her husband

during her life time.

(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting

her claim to maintenance-

(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause

and without her consent or against her wish, or willfully neglecting her;

(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her

mind that it will be harmful or injurious to live with her husband;

(c) if he is suffering from a virulent form of leprosy;

(e) if he has any other wife living;

(f) if he keeps a concubine in the same house in which his wife is living or habitually

resides with a concubine elsewhere;

(g) if he has ceased to be a Hindu by conversion to another religion;

(h) If there is any other cause justifying her living separately.

(3) A Hindu wife shall not be entitled to separate residence and maintenance from her

husband if she is unchaste or ceases to be a Hindu by conversion to another religion.

-Memorial submitted on behalf of Respondent-

Here, the petitioner is able to pay maintenance to his wife and his daughters till the

daughters attain maturity and become able to fulfill their needs themselves but he had to

pay maintenance to his wife for life time.

According to the case of Gobinda Rani Dasi vs Radha Ballabh Das on 5 July, 1910

Plaintiff consequently asks for a declaration that he and his wife and children are entitled

to be maintained out of the estate of Radhika Mohan now in the hands of the defendant,

and seeks for a decree for arrears of maintenance from the 16th January 1906 up to the

18th June 1997. In the Court below the plaintiff applied for leave to sue in forma

pauperis, and as it was found that he was not possessed of sufficient means to enable him

to pay the institution fee, he was allowed to do so in due course. The claim was resisted

substantially on the ground that there was no express contract under which the plaintiff

could claim maintenance; that under the Hindu Law such a claim was not sustainable;

that, in any event, he was not entitled to separate maintenance; and that as he was of bad

character and irregular habits and had grossly insulted his mother-in-law, he had lost all

rights of maintenance, if he ever had any. The learned Subordinate Judge has found upon

the evidence that the express contract for maintenance alleged by the plaintiff has not

been established, but he has held that thereallowed to turn him out without any provision

for their maintenance. It may be conceded, as laid down by this Court in the case of

Tekait Monmohini v. Basanta Kamar 28 C. 751 that an ante-nuptial agreement on the part

of the husband that he will never be at liberty to remove his wife from her paternal-

abode, will not be enforced by a Court of justice on the ground that it is contrary to the

rules of Hindu Law which impose a duty upon a Hindu wife to reside with her husband

wherever he may choose to reside. It need not also be disputed that such an ante-nuptial

-Memorial submitted on behalf of Respondent-

agreement on the part of the husband is opposed to public policy, and consequently, the

father-in-law will not be assisted by any Court in his endeavour to enforce it. It does not

follow, however, that if the son-in-law is willing to abide by the arrangement, the father-

in-law or his representative is at liberty to resile from the position deliberately adopted,

and to refuse to maintain him, his wife and children. In our opinion, there is nothing in

Hindu Law or in public policy Very special reasons, the Court are entitled to make a

decree for separate maintenance. In the case before us, it is abundantly clear upon the

evidence that the plaintiff has fallen out with his mother-in-law. Their temper is obviously

incompatible, though it may be difficult to apportion the blame for the present strained

relations between them. One thing, however, is fairly clear upon the evidence. The

mother-in-law has been anxious to alienate part of the property inherited by her from her

husband; whether such alienation would be justifiable in law, need not be discussed now,

but she has clearly sought to obtain the consent of her daughters, who are the next

reversionary heirs, to the intended transfer. Her eldest daughter, apparently with the

consent of her husband, has been prepared to accommodate her in this matter, bat her

second daughter, the wife of the plaintiff, under the advice of her husband, has declined

to join her in the attempted alienation. The plaintiff cannot be blamed for the caution with

which he has ached, obviously in the interest of his wife and children, who are the

ultimate reversionary heirs. But although such passive obstruction on the part

The first ground, urged in support of the cross-objections, is that the decree of the Court
below ought to have declared the right of maintenance not merely of the plaintiff bit also
of his wife and children. This contention is, in our opinion, partially well-founded. As the
suit has been instituted by the plaintiff alone, a declaration cannot be made that
his wife and children are entitled to maintenance from the defendant, but in the view we
-Memorial submitted on behalf of Respondent-
take of the matter, the plaintiff is entitled to a declaration that the amount
of maintenance to be allowed to him should be so regulated as to suffice for the needs not
only of himself but also of his wife and children, if these latter are not maintained by the
defendant as members of her family. If the defendant refuses to receive back the plaintiff
in her family circle, the latter is clearly entitled to take away his wife and children, and in
such a contingency, the amount allowed to him must be adequate to maintain himself and
his family. The qualifying words, therefore, in the decree "only for himself" .

And in the case of Bhagwan Dutt vs Kamla Devi And Anr on 17 October, 1974
Section 488 does not confer an absolute right on a neglected wife to get an order
of maintenance against the husband nor does it impose an absolute liability on the
husband to support her in all circumstances. The use of the word "may" in Section 488(1)
indicates that the power conferred on the Magistrate is discretionary. A neglected wife,
therefore, cannot, under this Section, claim, as of right, an order of maintenance against
the husband

"It is obvious from the language of the section that in order to enable a child to claim
maintenance it has to be proved that the child is unable to maintain itself'. No such
condition has been imposed in the case of a wife. Cases in which maintenance was
refused to the wife merely on the ground that she was in a position to maintain herself
have, in my view, omitted to consider the implication of this distinction while construing
the scope and effect of s. 488. In my opinion, the ability of the wife to maintain herself
was not intended by the legislature to deprive her of the right of maintenance conferred
by this section, if she is otherwise found entitled to it.."

fixing the amount of maintenance, the Magistrate is debarred from taking into
consideration the wife’s own separate income or means of support. There is a clear
distinction between a wife's locus standi, to file a petition under s. 488 and her being
entitled, on merits, to a particular amount of maintenance there under. This distinction
appears to have been overlooked in Major Joginder Singh's case (supra). Proof of the

-Memorial submitted on behalf of Respondent-

preliminary condition attached to a neglected child will establish only his competence to
file the petition but his entitlement to maintenance, particularly the fixation of its amount,
will still depend upon the discretion of the Magistrate. As the Magistrate is required to
exercise that discretion in a just manner, the income of the wife, also, must be put in the
scales of justice as against the means of the husband. The object of those provisions being
to prevent vagrancy and destitution, the Magistrate has to find out as to what is required
by the wife to maintain a standard of living which is neither luxurious nor penurious, but
is modestly consistent with the status of the family. The needs and requirements of
the wife for such moderate living (supra) was explained and distinguished. That case in P.
T. Ramankutti v. Kalyankutty (supra) therein, the husband was getting a net salary of Rs.
240/-, while the monthly salary. Of the wife was (after deductions) Rs. 210/-. The
question was whether the wife in such a financial position had a right to
claim maintenance under s.488, Criminal Procedure Code. after referring to the
observations of Dua, J. in Major Joginder Singh's case (supra) and surveying the case law
on the subject, the learned single Judge of the Kerala High Court correctly summed up
the position thus ; "To take the view that in granting maintenance under Section 488 to a
wife her personal income also can be considered may Prima-facie appear to be against the
language of the section because the condition "unable to maintain itself" appearing
therein attaches itself only to child and not to wife. But that condition has application
only in considering the maintainability of a petition filed under s.488. A wife can file a
petition under that section irrespective of the question whether she is able or unable to
maintain herself. But on her application at the time of the granting of monthly

PRAYER

-Memorial submitted on behalf of Respondent-

Wherefore, in the light of the issues raised, arguments advanced, reasons given and authorities

cited, this Hon’ble Court may be pleased to:

 Declare that the respondent has not committed fraud any with the petitioner and marriage

is not voidable.

 Declare that the petition filed by the petitioner is not liable and he can’t get divorce from

his wife.
 Declare that the petitioner is not entitled to get judicial separation on the ground of

cruelty.
 Declare that the respondent and her daughter should get maintenance from the petitioner.

Pass any other order, which the court may deem fit in light of justice, equity and good

conscience.

All of which is respectfully submitted

COUNSEL FOR THE RESPONDENT

-Memorial submitted on behalf of Respondent-