SP-30

IN FAMILY COURT OF PATNA

IN THE CASE CONCERNING

SAURAV…………………..………….……..APPELLANT

V.

RAJNI………………...……………….…….RESPONDENT

&
SAURAV,,,,,,.…………………………….….PETITIONER

V.
RAJINI………...……………………………..RESPONDENT

MEMORIAL ON BEHALF OF THE PETITIONER

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TABLE OF CONTENTS

TABLE OF CONTENTS .............................................................................................................. II

LIST OF ABBREVIATIONS ....................................................................................................... III, IV

LIST OF AUTHORITIES............................................................................................................. V

STATEMENT OF JURISDICTION............................................................................................ VII

STATEMENT OF FACTS ........................................................................................................... VIII

ISSUES RAISED .......................................................................................................................... IX

SUMMARY OF ARGUMENTS ................................................................................................. X

ARGUMENTS ADVANCED…………………………………………………………………1, 2, 3

PRAYER……………………………………………………………………………………….4
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LIST OF ABBREVIATIONS

¶ Paragraph

AIR All India Reporter

Anr. Another

Art. Article

Cr.P.C. Code of Criminal Procedure

CriLJ Criminal Law Journal

FIR First Information Report

HC High Court

Hon‟ble Honourable

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IPC Indian Penal Code

LRs
Lawyers

Ors. Others

Sec. Section

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reports

V. Versus

Vol.
Volume

COUNSEL ON BEHALF OF THE PETITIONER

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LIST OF AUTHORITIES

Cases
SOBHA RANI V MADHUKAR REDDY. ........................................................................1

P.L. SAYAL v SARLA ......................................................................................... ……….1

NARAYAN GANESH DASTANE v. SUCHETA NARAYAN DASTANE…................ 2
SIDDANGIAH v LAKSHMMA…………..................................................... ………......2
BHAGAT . v. BHAGAT .................................................. ……………………………...…2
ROMESH v. SAVITRI…………………………………………………………………...…2
N. SREEADECHARYA v. VASANTHA……………………………………………………..2

HEWER v. BARYANT………………………………………………………………………....3

GITA HARIHARAN v. RBI……………………………………………………………….……3

SHYAM RAO MAROTI KORWATE v. DEEPAK KISAN RAO TEKAM………………..….3

COUNSEL ON BEHALF OF THE PETITIONER

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Books

Dr. Paras Diwan, Family Law , 2013. ................................. 4

\COUNSEL ON BEHALF OF THE PETITIONER

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STATEMENT OF JURISDICTION
The petitioner has appeared before the Hon‟ble FAMILY COURT OF PATNA to grant of divorce in light of sec.
18 of the “Hindu mairrage act”.

COUNSEL ON BEHALF OF THE PETITIONER

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STATEMENT OF FACTS

BACKGROUND

Saurav and Rajni are spouse. They were married on may 21,2010 according to hindu rituals. After one & half year
of the mairrage there were some consequences in their commom life. Although they were blessed with a girl child
named khushee. Radha (sister of saurav) left her husband`s house due to his illicit relations with other woman and
started living in thv e same house of her father and brother together with Rajni. Rajni was having some different
nature. She was not comfortable with radha & all th family members in the house. Many a times she filed suit of
domestic violence against the family members except her husband.

Once a time when Saurav asked her to favour him & console Radha in her husband`s house. She reacted to it very
badly & also aurgumented to saurav against his whole family. She filed a suit of domestic violence and also suied
Radha for abetting family members against her. Saurav and his family wanted to get rid of this dire consequences.
Now, saurav was seprated with his parents and initial family. But he was Living with Rajni for future of her beloved
daughter. But he was unable to tolerate her usual bad behavior for a long & he left the house. But though his father
he always used to give her maintainance and fee for her daughter without her knowledge.

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ISSUES RAISED

-I-

As in this case, the behavior of respondent is not upto a certified mark. So the Appellant wants divorce on the
ground of cruelty.

-II-

Respondent is not employed and there is not permanent source of income. So,
respondent is unable to wear expenses of the child. For better future of the child
appellant wants custody of the child.

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SUMMARY OF ARGUMENTS

I. As in this case, the behavior of respondent is not upto a certified mark. So the Appellant wants
divorce on the ground of cruelty.

It is humbly submitted before this Hon‟ble Court that in the instant matter behavior of respondent
Towards her family is not satisfactory. She is having some pre defined duty towards her family and
Her husband. Due to the behavior of respondent the appellant is frustrated. She has separated him
from her parents & sister. This is nothing other than cruelty. In sec. 13(1)(a) of “Hindu Mairrage Act”
cruelty is a ground of divorce. The appellant want divorce.

II. Respondent is not employed and there is not permanent source of income. So,
respondent is unable to wear expenses of the child. For better future of the child
appellant wants custody of the child.

It is submitted before this Hon‟ble Court that, the respondent is not having a source of permanent income.
She is unable to bear her own expenses then how can she afford a child. So, for better future of child custody
of child should be given to father. The Hindu Minority and Guardianship Act, 1956 clearly states in Section 6
that the father is the natural guardian of his minor legitimate child.

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ARGUMENTS ADVANCED

1. AS IN THIS CASE, THE BEHAVIOUR OF RESPONDENT IS NOT UPTO A CERTIFIED MARK.

SO THE APPELLANT WANTS DIVORCE ON THE GROUND OF CRUELTY.

It is humbly submitted before this Hon‟ble Court that in the instant matter matter behavior of respondent
Towards her family is not satisfactory. She is having some pre defined duty towards her family and
Her husband. Due to the behavior of respondent the appellant is frustrated. She has separated him
from her parents & sister. This is nothing other than cruelty. In sec. 13(1)(a) of “Hindu Mairrage Act”
cruelty is a ground of divorce. The appellant seek for divorce.

In SOBHA RANI V MADHUKAR REDDY, court defines cruelty as:-

Section 13(1)(i-a) uses the words 'treated the petitioner with cruelty'. The word 'cruelty' has not been defined.
Indeed it could not have been defined. It has been used in relation to human conduct or human behaviour. It
is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct of
one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional.
If it is physical the court will have no problem to determine it. It is a question of fact and degree. If it is mental
the problem presents difficulty. First, the enquiry must begin as to the nature of the cruel treatment. Second, the
impact of such treatment in the mind of the spouse. Whether it caused reasonable apprehension that it would be
harmful or injurious to live with the other.

In landmark case, P.L. SAYAL v. SARLA The wife was crazy to get the love and affection of her husband, and
with that in view, she consulted a fakir who gave her some potion to be administered to the husband. She
administered the same to the husband which resulted in his getting seriously ill. He was admitted to the
hospital where he remained for sometime. During the entire period of husband's illness the wife was in
attendance on him, day and night, like a dutiful Hindu wife. She was replentent of her conduct and her
eyes were constantly wet with tears. On discharge from the hospital the husband petitioned for judicial
separation on the ground of wife's cruelty. section 10(1)(b) of the Act which speaks of cruelty causing a
reasonable apprehension in the mind of the objecting spouse, that it would be harmful or injurious to live
with the other party.

The learned judge, after reviewing some leading English cases, said that intention to injure was not an
essential element of cruelty; if act or conduct caused injury or a reasonable apprehension thereof, it was
enough to constitute cruelty.

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Dastane VS DASTANE, presents another high watermark case on mental cruelty. Mrs. Dastane used
to make all sorts of vile, filthy and false allegations, not merely against the husband but also against
all the members of the husband's family. She used to abuse him and his family in vilest possible terms.
In the instant case Respondent also used to state malafide statements.

She was suing petitioner`s family again & again. But each time the court found no guilty on there side.
In SIDDANGIAH v LAKSHMMA case, where the husband made false charge of adultery against his
wife with a calculated desire to hurt her feeling and to humiliate her, the court had no difficulty in giving
in finding of cruelty. There is similarity between instant & precedent. The only difference can be solved
by observing the instant case vice-versa.

The petitioner is so much effected with the bad behavior of respondent.

In BHAGAT . v. BHAGAT case, the Supreme Court after review of authorities, said that mental cruelty
can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering
as would make it not possible for that party to live with the other.

As wife is suing her husband & not living together, all these shows that emotions between them are dead.
So, it will be better to dissolve the mairrage. In ROMESH v. SAVITRI case, the Court said that the
marriage was dead emotionally and practically and the continuance of the marriage alliance or name-sake was
prolonging the agony and affliction. In such a case, it was better to dissolve the marriage, the court held.

After saurav had left the house he came after 3 month her to meet daughter but he was not allowed by
the Respondent to meet her daughter & insults him. But inspite of this he was giving maintainance and school
fee of her daughter. This shows he direly loves his daughter. In N. SREEADECHARYA v. VASANTHA case,
wife used to quarrel with, hurl vilest abuses at, and humiliate and insult, her husband on trivial matters. She
subjected him to insults and humiliations in public and made him a laughing stock in the locality. All this
obviously made the husband miserable, and he used to have sleepless nights and started keeping ill-health.
This was a clear case of cruelty.

S. P. Mittal v. Union of India & Ors. (1983) 1 SCC 51.

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2. Respondent is not employed and there is not permanent source of income. So, respondent is
unable to wear expenses of the child. For better future of the child appellant wants custody of the
child.

It is submitted before this Hon‟ble Court that, the respondent is not having a source of permanent income.
She is unable to bear her own expenses then how can she afford a child. So, for better future of child custody
of child should be given to father. The Hindu Minority and Guardianship Act, 1956 clearly states in Section 6
that the father is the natural guardian of his minor legitimate child.

In HEWER v. BRYANT , emphassing the duel aspect of custody, observed: In its wider meaning the word
'custody' is used as if it were almost the equivalent of guardian in the fullest sense.. These include power to
control education, the choice of religion, and the administration of infant's property. They include entitlement
to veto issue of passport and to withhold consent to marriage. They include both the personal power physically
to control the infant until the years of discretion and the right to exercise the powers of the Crown as parens
patriae. The learned judge then said that custody in its narrower meaning means personal power of physical
control."

Under the “Hindu Minority and Guardianship Act”, 1956 clearly states in Section 6 that the father is the
natural guardian of his minor legitimate children as it has been laid down in the case of:-
GITA HARIHARAN v. RBI. The mother becomes the natural guardian in the absence of the father which
means when the father is not capable of acting as the child’s guardian. But here in the instant case father is
able to bear expenses of child.

In SHYAM RAO MAROTI KORWATE v. DEEPAK KISAN RAO TEKAM, it was held that the word, “welfare”
used in Section 13 of the “Hindu Minority And Guardianship Act” has to be inferred literally and must be taken
in its broad sense. Such an interpretation is in unanimity with the development of the child as a capable and
independent individual.
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PRAYER

Wherefore, in the light of the facts stated, issues raised, authorities cited and arguments
advanced, it is most humbly prayed and implored before the Hon‟ble Court that it may be

graciously pleased to adjudge and declare that:

1. As in this case, the behavior of respondent is not upto a certified mark. So the Appellant wants divorce on
the ground of cruelty.

2. Respondent is not employed and there is not permanent source of income. So,
respondent is unable to wear expenses of the child. For better future of the child
appellant wants custody of the child.

And pass any other order as it deems fit in the interest of equity, justice and good conscience.

All of which is most humbly and respectfully submitted.

FOR WHICH THE PETITIONER SHALL FOREVER PRAY.

COUNSEL FOR THE PETITIONER

COUNSEL ON BEHALF OF THE PETITIONER