MOOT COURT COMPETITION 2021

(GROUP NO. 6)

BEFORE THE HON’BLE SUPREME COURT OF INDIA

MS SAINA AND
OTHERS………………………………………………PETITIONER

VS

MR. RAM………………………………………………RESPONDENT

MEMORIAL FOR THE PETITIONER

SUBMITTED BY-HIMALAYA SHARMA

ROLL NO. 17111886569

TEACHER NAME –MS GURJINDER KAUR

SIGNATURE OF TEACHER…………………

SIGNATURE OF COUNSEL………………….
 TABLE OF CONTENTS

S,NO TITLE OF CONTENTS PAGE NO.

1 INDEX OF AUTHORITIES 1

2 STATEMENT OF JURISDICTION 2

3 STATEMENT OF FACTS 33

4 LEGAL ISSUES 4

5 SUMMARY OF ARGUMENTS 5

6 ARGUMENTS ADVANCED 6-9

7 PRAYER 10
INDEX OF AUTHORITIES

CASES REFERRED:
1. A. JAYACHANDRA VS ANEEL KAUR
2. MUNISH KAKKAR VS NIDHI KAKKAR
3. R. SRINIVAS KUMAR VS R. SHMETHA
4. A DINOHAMY VS W.L BALAHAMY
5. D VELUSWAMY VS D .PATCHAIMMAL
6. AJAY KUMAR VS LATA
 STATEMENT OF JURISDICTION
Article 136 in The Constitution Of India 1949

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.

Article 142 in The Constitution Of India 1949

142. Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc
(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
 STATEMENT OF FACTS
1. Mr Sunil and Ms Saina both were belonging to IAS batch 2000.
2. They were good friends. They decided to convert that friendship into marital
relationship. Accordingly, with the consent of the parents they got married under
Special Marriage Act, 1954 in the year 2004.
3. Mr Sunil was an orthodox person and had high religious beliefs and he wanted to
have a male child. Saina was employed as an IAS officer. She took matrimonial leave
and delivered two babies, one Geeta in 2006 and one Seeta in 2009.
4. Due to absence of male child there were quarrels between husband and wife. This
resulted to divorce between them by mutual consent. During this difficult period
Saina was transferred to Delhi. She met Mr Ram a smart, Handsome and efficient IAS
officer who expressed his wish to marry her. As Mr Ram was married, they waited for
divorce. Immediately after divorce they got married.
5. Soon after marriage Saina got very busy with administrative work and she decided not
to have children for 5 years. She was not taking proper care of her husband. Mr Ram
tried his level best to balance the relationship. Sania told her children Geeta and Seeta
that Mr Ram is not their father. She always avoided Mr, Ram to spend time with
Geeta and Seeta.
6. In 2012 Sania was transferred from Delhi to Mumbai. She shifted from Delhi to
Mumbai. The behaviour of Saina did not change. She was very dominant and abusive
on phone and in person whenever she was meeting Mr Ram.
7. Mr Ram was alone in Delhi and there was no one to take care of him so he hired a
domestic Servant Ms Prabha. Maid servant was asked to stay at home this led to live-
in relationship between them.
8. In 2013, when Saina visited Delhi she came to know about their relationship as
Prabha was pregnant. Being aggrieved with misconduct and extramarital affair Saina
served a notice of divorce. Sania filed divorce petition in Family court, Delhi on the
ground of irretrievable breakdown of marriage. Family court dismissed the petition.
Against the decision of the family court wife filed appeal in Delhi High court
claiming the maintenance under the Domestic Violence Act, 2005. High Court
dismissed the appeal as there is no specific provision under existing laws.
9. The wife filed Special leave petition in Supreme Court stating that divorce should be
granted on irretrievable breakdown of marriage.
10. Ms Prabha appeal for maintenance under the dpmestic violence act 2005. Supreme
Court in its discretionclubbed both matters together and called for final hearing
 LEGAL ISSUES

1. Whether the appellant is entitled for the decree of divorce on grounds of irretrievable
breakdown of marriage.
2. Whether the appelant is entitled for maintenance under the Domestic violence Act
2005.
 SUMMARY OF ARGUEMENTS BY PETITIONER
Whether the appellant is entitled for the decree of dissolving the marriage on
grounds of irretrievable breakdown of marriage.?

It is humbly submitted before the hon’ble Supreme Court that in present case an
irretrievable breakdown of marriage has happened between the petitioner and respondent
and because the petitioner and respondent have not lived together for a period of time and
the respondent has committed adultery during that time.

Whether the second petitioner is entitled for maintenance under the Domestic
Violence Act 2005?

It is humble submitted before the hon’ble Supreme Court that Ms. Prabha is entitled for
maintenace under the Domestic Violence Act 2005 as mentioned under sec 20 of
Domestic Violence Act 2005.
 ARGEMENTS ADVANCED BY PETITIONER

Whether the appellant is entitled for the decree of dissolving the

marriage on grounds of irretrievable breakdown of marriage.?
The Irretrievable theory of breakdown is the most controversial theory in legal
jurisprudence based on the principle that marriage is a union of two people based on love-
affection and mutual respect. If all of these are affected by any of the factors (say cruelty,
desertion, adultery, insanity, etc), and If the marriage relationship between the spouses
reaches such an extent that it is absolutely irreparable that it is a point where neither of
the spouses can live in peace with each other and gain the benefits of marriage
relationships, then it is best to break the marriage, because now there is no point in
continuing such a dead relationship which only exists in name and not in practice.

In India, regarding the Hindu Marriage Act and the Special Marriage Act, the
Government of India has attempted to include ‘Irretrievable Breakdown of Marriage’ as a
divorce ground, as recommended by the Law Commission of India’s 71st Report. The
71st report submitted by the Law Commission of India in 1978 deals with the concept of
an Irretrievable Marriage Breakdown. The Report is based on the prima facie issue as to
the degree and conditions under which the Hindu Marriage Act can provide an
Irretrievable Dissolution of Marriage as a basis for divorce. The Law Commission noted
in its report that the rule of limiting divorce to matrimonial disability results in
discrimination in cases where no party is to blame or the fault is of such a nature that no
party wishes to reveal it and yet the marriage has ceased to exist. In other words, the
Irretrievable Breakdown of Marriage refers to a situation where emotional bonds, respect,
etc. have disappeared, which is the very foundation of a marriage, and there remains only
a facade in the name of marriage. The Law Commission mentions that where marriage
has ceased to exist in substance as well as in fact, divorce must be taken as a remedy to
avoid a difficult remedy. The terms of such a divorce should be mainly concerned with
getting the parties and the children to recognize the new arrangement and hammer out a
suitable framework for managing relationships in the face of changing circumstances,
rather than finding faults during the divorce proceedings. In the current scenario of India,
In March 2012, the parliament passed the Marriage Laws (Amendment) Bill, 2010 with
the introduction of Section 13C, 13D and 13E. Section 13C(1) allows for the use of an
irretrievable dissolution of marriage as a new basis for divorce in addition to Section
13C(2), which requires the parties to have lived apart for 3 years or more before filing the
petition.

The only validity of the theory as proposed by the jurists is that a marriage, which is
regarded as a sacramental institution in practice, should be founded on the basis on which
a sound marriage is founded which is harmony, compromise and mutual respect. If any of
the marriage party isn’t ready to live with the other party the relationship won’t be a
happy one. Stretching such a relationship will do no good to each other, rather it will
develop hatred and frustration between the parties. Therefore it is important to end such a
marriage to preserve the sanctity of marriage, to reduce the number of unhappy marriages
and to prevent the precious years of the life of the spouses from being wasted. As there is
no reasonable way for a partner to be persuaded to resume life with the consort, nothing is
achieved by attempting to keep the parties bound to a marriage that has already ceased to
be leaving. Marriage in the home is a lifelong cohabitation. The legal bond will be broken
until the possibility of future cohabitation has ceased. Also, The Government of India,
Department of Social Welfare, has stated that making an irretrievable breakdown of
marriage a ground for granting a divorce decree is redundant in view of the fact that there
are sufficient grounds for ‘irretrievable breakdown of marriage’ in the Hindu Marriage
Act and the Marriage Laws Amendment Act, 1976, for divorce seeking.Also Respondent
has committed Adultery with a 17 year old girl Ms Prabha which is valid ground for
divorce under Special Marriage Act 1955 keeping in mind these circumstannces the
petitioner shall be granted a decree for divorce.

In A. Jayachandra v. Aneel Kaur, AIR 2005 SC 534, the Supreme Court examined such
cases. And after discussing the fact concluded thus: When the respondent gives priority to
her profession over her husband’s freedom it points unerringly at disharmony, diffusion
and disintegration of marital unity, from which the Court can deduce about irretrievable
breaking of marriage.

In the recent judgement of MUNISH KAKKAR VS NIDHI KAKKAR IN 2019

The Supreme Court recently dissolved a marriage by exercising its inherent powers under
Article 142 of the Constitution, even as it recognised that there is no statutory law for
recognising irretrievable breakdown of marriage as a ground for divorce in India. The
Bench of Justices Sanjay Kishan Kaul and KM Joseph passed a judgment to this effect
after taking note that the Supreme Court has earlier invoked its inherent powers under
Article 142 to grant a divorce on the ground of irretrievable breakdown of marriage.
Further, the Court took note that this was done”not only in cases where parties ultimately,
before this Court, have agreed to do so but even otherwise.”

It was pointed out that,

“There is, thus, recognition of the futility of a completely failed marriage being continued
only on paper … In numerous cases, where a marriage is found to be a dead letter, the
Court has exercised its extraordinary power under Article 142 of the Constitution of India
to bring an end to it. “

Citing the judgment of R. Srinivas Kumar v. R. Shametha, the Bench added the
caution that such powers are not exercised routinely. However, the same could be
invoked “in rare cases, in view of the absence of legislation in this behalf, where it is
found that marriage is totally unworkable, emotionally dead, beyond salvage and has br
 The Court proceeded to award a decree of divorce and dissolved the marriage in the
instant case, invoking its jurisdiction under Article 142oken down irretrievably.”

The Court proceeded to award a decree of divorce and dissolved the marriage in the
instant case, invoking its jurisdiction under Article 142.

So therefore it is pleaded before the hon’ble Supreme court that court keeping in view its
power under Article 142 of constitution grant a decree of divorce on grounds of irretrievable
breakdown of mariage.

Whether the second petitioner is entitled for maintenance under the

Domestic Violence Act 2005?
The Protection of Women from Domestic Violence Act, 2005 provides for the protection,
maintenance and right of Palimony (a form of alimony paid to a former partner in a non-
marital relationship), to the female partner in a live-in-relationship, on her complaint.[2]
Thus, the female live-in-partners and the children of live-in- couples have been accorded
adequate protection by the Judicial System. Live-in-relationships may be immoral for an
Indian Society, but no law makes such relationships illegal.

Basically, the word relationship in the nature of marriage is nowhere defined in any
statute, but this word is used in Sec 2 (f) of The Protection of Women from Domestic
Violence Act, 2005 (hereinafter PWDV Act, 2005). According to the Sec. 2(f) of the Act
2005, domestic relationship as a relationship between two persons who live or have, at any
point of time, lived together in a shared household when they are related by consanguinity,
marriage or through a relationship in the nature of marriage, adoption or are family members
living together as a joint family.

In A. Dinohamy v. W.L. Balahamy the Privy Council held that where a man and a woman
are proved to have lived together as a man and wife, the law will presume, that they were
living together in consequence of a valid marriage, unless the contrary can be proved.

The Supreme Court in D. Veluswamy v. D. Patchaiammal has observed that a distinction

has been drawn between the relationship of marriage' and the relationship in the nature of
marriage' by the Parliament and has provided benefits under the Protection of Women from
Domestic Violence Act, 2005. Therefore, marriage and live-in relationship have been
recognized as different aspects in altogether by the Indian Judiciary.

The Protection of Women From Domestic Violence Act, 2005 (hereinafter referred to as the
Domestic Violence Act) was drafted for women empowerment and for protection of women
against all acts which amount to domestic violence in. The scope of this legislation has been
expounded in a plethora of judgments by Indian High Courts and the Supreme Court of India.

In common parlance, it has always been presumed that the maintenance is only to be paid by
the husband/male partner of the victim, to which there has been an interesting addition in a
recent Supreme Court judgement. In Ajay Kumar vs. Lata alias Shruti, it was directed that
the brother-in-law of the complainant had to pay maintenance under Section 2(q) of the
Domestic Violence Act. It was held that the Act provides for the liability of maintenance on
any adult male person who has been in a domestic relationship (in the nature of a marriage)
with the complainant.

Therefore it is humbly prayed before the hon’ble supreme court to grant for maintainence to
Ms. Prabha on account of Domestic Violence Act 2005
 PRAYER
In the light of the issues raised,arguments advanced and authorities cited may this hon’ble
court be pleased to:

1. Hold that the petitioner is entitled for a decree of divorce on grounds of irretrievable
breakdown of marriage
2. Hold that the petitioner is entitled formaintenence under the Domestic Violence act
2005

AND/OR

Pass any other order that it deems fit in the interest ofequity,justice and good
conscience.And for this, the petitioner as in duty bound shall humble pray.

Counsel For The Petitioner.