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DR. BAPUJI SALUNKHE 1ST INTRA COLLEGIATE VIRTUAL MOOT COURT

COMPETITION

Before Honourable Supreme Court of India

Under Art.32 of Constitution of India

RAVI KUMAR…………………………………………………APPELLANT

VERSUS

RINKY KUMAR ……………………………………………..RESPONDENT

MEMORIAL ON BEHALF OF APPELLANT

SUBMITTEED BY

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INDEX

Page No.

1- INDEX OF AUTHORITES ……………………………………………………..3

2- LIST OF ABBREVIATIONS ……………………………………………...……4-5

3- STATEMENT OF JURIDICTION ……………………………………...………6

4- STATEMENT OF FACT………………………………………………….….…7-9

5- STATEMENT OF ISSUES……………………………………………………...10

6- BRIEF SUMMARY OF ARGUMENT………………………………………….11-12

7- ADVANCE ARGUMENT………………………………………………………13-17

8- PRAYER…………………………………………………………………………18

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INDEX OF AUTHORITIES

ACT, RULES AND INSTRUCTIONS

ONLINE DATABASE

1- Manupatra www.manupatra.com

2- SCC online www.scconline.com

3- Indian kanoon www.indiankanoon.com

4- Jstore www.jstore.com

5- Lexisnexis www.lexisnexis.in

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LIST OF ABBREVIATIONS

ABBREVIATION FULL FORM

All. Allahabad

Anr. Another

Bom. Bombay

Cal. Calcutta

CrPC Criminal Procedure Code

CrLJ Criminal Law Journal

Dy. Deputy

Edn. Edition

Hon’ble Honorable

i.e. That is

Ibid Ibidem

HMA Hindu Marriage Act

ILR Indian Law Reporter

Ker Kerala

Ltd. Limited

No. Number

Ori. Orissa

Ors. Others

Pat. Patna

Punj. Punjab

QB Queen’s Bench

Art. Article

S. Section

SC Supreme Court

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SCC Supreme Court Cases

SCR Supreme Court Report

ss. Sections

u/s Under Section

V. Versus

& And

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SATEMENT OF JURIDICTION

The Appellant has approached this Hon’ble Court under Article 321 of the Constitution of

India.

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Article 32 of The Constitution of India:
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights
conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the
enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by
law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this
Constitution.

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STATEMENT OF FACTS

`That this is the writ petition filed by the appellant against the order of Delhi High Court,

thereby setting aside the judgment passed by the District Court decline to award the

maintenance pendente lite to the respondent and also make the addition to 10,000/- which

the appellant already paying as interim maintenance as per the order of lower court under

section 23 (2) of the Protection Of Women From Domestic Violence Act.

That the fact of the writ petition as are the appellant and respondent marriage was solemnized

on 19.02.2005. Thereafter , she was residing with appellant at Delhi. Thereafter, on account

of strained relations with the respondent in the marital life the appellant filed a divorce

petition in 2007 under the Hindu Marriage Act seeking divorce on ground of cruelty.

That the as counter the respondent filed a petition under the Domestic Violence Act and

prayed for interim maintenance under the same. Also the respondent filed a complaint on

23.11.2007 under Section 498-A and Section 406 of Indian Penal Code against the appellant

and family members which was later on registered as FIR with the Delhi Police Station .

That the in December 2007, respondent filed another complaint under Section 125 Code of

Criminal Procedure before the family court , Delhi.

That the respondent’s interim application seeking maintenance amongst other reliefs under

Section 23(2) of the D.V. Act was dismissed by the Metropolitan Magistrate, Delhi on the

ground that the respondent was employed and was getting a stable income and no document

was placed on record by the Respondent to show that the Respondent again had become

jobless.

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That the Respondent had filed a Criminal Appeal before Additional Session Judge, Delhi

against the dismissal of application for maintenance by Metropolitan Magistrate.

That the in the said appeal and in Criminal Revision , Additional Session judge , Delhi by an

order dated granted maintenance of Rs 10000/- per month to the respondent.

That the in the pretext of arrest appellant filed an application for anticipatory bail under

Section 438 Code of Criminal Procedure. The High Court granted anticipatory bail to the

Appellant subjected to the conditions.

That the respondent filed application under Section 24 of the Hindu Marriage Act claiming

interim maintenance pendente lite of Rs 40,000/- per month and also a sum of Rs 80,000/- to

meet litigation expenses during the pendency of the divorced petition. In the said application ,

the contention of Respondent was that she has no source of income and totally dependent on

Appellant to maintain herself .

That the appellant resisted to this application and submitted that the Respondent is an

educated lady and that she had completed her one year course of Fashion. Therefore she is

able to maintain herself.

That the application filed under Section 24 of Hindu Marriage Act was dismissed by lower

court. Being aggrieved the Respondent filed Criminal Miscellaneous Application before the

High Court Delhi. The High Court in its order directed both the parties to fled an affidavit

truthfully disclosing their correct income. Both the Appellant and Respondent submitted an

affidavit as to their income in compliance of the aforesaid order.

That the High Court by the impugned order directed the Appellant to pay interim

maintenance of Rs 60,000/- per month in addition to Rs 10,000/- which was to be paid to the

Respondent in the proceeding under D.V. Act , 2005.

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That the Appellant being aggrieved by the order by hon’ble High Court , Delhi came in

appeal before the Supreme Court.

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STATEMENT OF ISSUES

1- WHETHER THE RESPONDENT ENTILED MAINTENACE UNDER MORE

THAN ONE STATUE?

2- WHETHER THE EDUCATED WIFE CAN ENTITLED MAINTENANCE ?

3- WHAT SHOULD BE THE QUANTUM OF MAINTENACE?

4- WETHER THE ORDER OF HIGH COURT WAS JUSTIFIABLE ?

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BRIEF SUMMERY OF ARGUMENT

ISSUE 1

WHETHER THE RESPONDENT ENTILED MAINTENACE MORE THAN ONE

STATUE?

It is submitted that the respondent can make a claim for maintenance under different

statutes. For instance, there is no bar to seek maintenance both under the D.V. Act and

Section 125 of the Cr.P.C., or under H.M.A. It would, however, be inequitable to direct

the husband to pay maintenance under each of the proceedings, independent of the relief

granted in a previous proceeding. If maintenance is awarded to the wife in a previously

instituted proceeding, she is under a legal obligation to disclose the same in a subsequent

proceeding for maintenance, which may be filed under another enactment. While

deciding the quantum of maintenance in the subsequent proceeding, the civil court/family

court shall take into account the maintenance awarded in any previously instituted

proceeding, and determine the maintenance payable to the claimant.

ISSUE 2

WHETHER THE EDUCATED WIFE ENTITELED MAINTENANCE ?

It is submitted that the respondent is educated women and physically capable. She can

maintain herself, so she is not entitled the maintenance under Hindu Marriage Act 1955 as

well as other statue. The provision of maintenance under the Hindu Marriage Act, CrPC,

D.V.Act is for the spouses who are physically mentally unable to maintain herself. That the

respondent’s interim application seeking maintenance amongst other reliefs under Section

23(2) of the D.V. Act was dismissed by the Metropolitan Magistrate, Delhi on the ground

that the respondent was employed and was getting a stable income and no document was

placed on record by the Respondent to show that the Respondent again had become jobless.

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ISSUE 3

WHAT SHOULD BE THE QUANTUM OF MAINTENACE?

It is submitted that while deciding the quantum of maintenance in the subsequent

proceeding, the civil court/family court shall take into account the maintenance awarded

in any previously instituted proceeding, and determine the maintenance payable to the

claimant. The objective of granting interim / permanent alimony is to ensure that the

dependant spouse is not reduced to destitution or vagrancy on account of the failure of the

marriage, and not as a punishment to the other spouse. There is no straitjacket formula for

fixing the quantum of maintenance to be awarded.

ISSUE 4

WETHER THE ORDER OF HIGH COURT WAS JUSTIFIABLE ?

It is submitted that the order of the high court setting aside the order of district court is

not justifiable. That the High court passed that order without considering the income

source of respondent. Respondent is well educated mentally and physically fit she can

get a job anywhere and maintain herself.

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ADVANCE ARGUMENT

ISSUE 1

WHETHER THE RESPONDENT ENTILED MAINTENACE MORE THAN ONE

STATUE?

It is submitted that the respondent can make a claim for maintenance under different

statutes. For instance, there is no bar to seek maintenance both under the D.V. Act and

Section 125 of the Cr.P.C., or under H.M.A. It would, however, be inequitable to direct

the husband to pay maintenance under each of the proceedings, independent of the relief

granted in a previous proceeding. If maintenance is awarded to the wife in a previously

instituted proceeding, she is under a legal obligation to disclose the same in a subsequent

proceeding for maintenance, which may be filed under another enactment. While

deciding the quantum of maintenance in the subsequent proceeding, the civil court/family

court shall take into account the maintenance awarded in any previously instituted

proceeding, and determine the maintenance payable to the claimant.

To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being

passed in different proceedings, we direct that in a subsequent maintenance proceeding,

the applicant shall disclose the previous maintenance proceeding, and the orders passed

therein, so that the Court would take into consideration the maintenance already awarded

in the previous proceeding, and grant an adjustment or set-off of the said amount. If the

order passed in the previous proceeding requires any modification or variation, the party

would be required to move the concerned court in the previous proceeding.

In Sudeep Chaudhary v Radha Chaudhary25 the Supreme Court directed adjustment in a

case where the wife had filed an application under Section 125 of the Cr.P.C., and under

HMA. In the S. 125 proceedings, she had obtained an order of maintenance.

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Subsequently, in proceedings under the HMA, the wife sought alimony. Since the

husband failed to pay maintenance awarded, the wife initiated recovery proceedings. The

Supreme Court held that the maintenance awarded under Section 125 Cr.P.C. must be

adjusted against the amount awarded in the matrimonial proceedings under HMA, and

was not to be given over and above the same.

ISSUE 2

WHETHER THE EDUCATED WIFE ENTITELED MAINTENANCE ?

It is submitted that the respondent is educated women and physically capable. She can

maintain herself, so she not entitled the maintenance under Hindu Marriage Act 1955 as

well as other statue

In Chaturbhuj v. Sitabai2 Supreme Court held that, the Court has to determine whether

the income of the wife is sufficient to enable her to maintain herself, in accordance with

the lifestyle of her husband in the matrimonial home.

ISSUE 3

WHAT SHOULD BE THE QUANTUM OF MAINTENACE?

It is submitted that while deciding the quantum of maintenance in the subsequent

proceeding, the civil court/family court shall take into account the maintenance awarded

in any previously instituted proceeding, and determine the maintenance payable to the

claimant. The objective of granting interim / permanent alimony is to ensure that the

dependant spouse is not reduced to destitution or vagrancy on account of the failure of the

marriage, and not as a punishment to the other spouse. There is no straitjacket formula for

fixing the quantum of maintenance to be awarded.

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(2008) 2 SCC 316
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The factors which would weigh with the Court inter alia are the status of the parties;

reasonable needs of the wife and dependant children; whether the applicant is educated

and professionally qualified; whether the applicant has any independent source of

income; whether the income is sufficient to enable her to maintain the same standard of

living as she was accustomed to in her matrimonial home; whether the applicant was

employed prior to her marriage; whether she was working during the subsistence of the

marriage; whether the wife was required to sacrifice her employment opportunities for

nurturing the family, child rearing, and looking after adult members of the family;

reasonable costs of litigation for a non-working wife3

In Manish Jain v Akanksha Jain4 Supreme Court held that the financial position of the

parents of the applicant-wife, would not be material while determining the quantum of

maintenance. An order of interim maintenance is conditional on the circumstance that the

wife or husband who makes a claim has no independent income, sufficient for her or his

support. It is no answer to a claim of maintenance that the wife is educated and could

support herself. The court must take into consideration the status of the parties and the

capacity of the spouse to pay for her or his support. Maintenance is dependent upon

factual situations; the Court should mould the claim for maintenance based on various

factors brought before it.

On the other hand, the financial capacity of the husband, his actual income, reasonable

expenses for his own maintenance, and dependant family members whom he is obliged to

maintain under the law, liabilities if any, would be required to be taken into consideration,

to arrive at the appropriate quantum of maintenance to be paid. The Court must have due

regard to the standard of living of the husband, as well as the spiralling inflation rates and

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Jasbir Kaur Sehgal v Distrct judge, Dehradun & ors. (1997) 7 SCC 7, Vinay Paramvir
Parmar v. paramveer parmar (2011) 13 SCC 112
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(2017) 15 SCC 801
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high costs of living. The plea of the husband that he does not possess any source of

income ipso facto does not absolve him of his moral duty to maintain his wife if he is able

bodied and has educational qualifications5

The Delhi High Court in Bharat Hedge v Smt. Saroj Hegde37 laid down the following

factors to be considered for determining maintenance :

1. Status of the parties.

2. Reasonable wants of the claimant.

3.The independent income and property of the claimant.

4. The number of persons, the non-applicant has to maintain.

5. The amount should aid the applicant to live in a similar lifestyle as he/she enjoyed

in the matrimonial home.

6. Non-applicant’s liabilities, if any.

7. Provisions for food, clothing, shelter, education, medical attendance and treatment

etc. of the applicant.

8. Payment capacity of the non-applicant

9. Some guess work is not ruled out while estimating the income of the non-applicant

when all the sources or correct sources are not disclosed.

10. The non-applicant to defray the cost of litigation.

11. The amount awarded u/s 125 Cr.PC is adjustable against the amount awarded u/

24 of the Act. 17.

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Reema Salkan v. Sumer Singh Salkan (2019) 12 SCC 303
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Apart from the aforesaid factors enumerated hereinabove, certain additional factors

would also be relevant for determining the quantum of maintenance payable.

ISSUE 4

WETHER THE ORDER OF HIGH COURT WAS JUSTIFIABLE ?

It is submitted that the order of the high court setting aside the order of district court is

not justifiable. That the High court passed that order without considering the income

source of respondent. Respondent is well educated mentally and physically fit she can

get a job anywhere and sustain herself. Respondent hadn’t file income affidavit

That the counsel further submit that the respondent’s interim application seeking

maintenance amongst other reliefs under Section 23(2) of the D.V. Act was dismissed by

the Metropolitan Magistrate, Delhi on the ground that the respondent was employed and

was getting a stable income and no document was placed on record by the Respondent to

show that the Respondent again had become jobless.

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PRAYER

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

Appellant most respectfully pleads and requests this Hon’ble court to declare:

1- That the order passed by the High Court is not justifiable..

And pass any other order it may deem fit, in the interest of Justice, Equity and Good

Conscience.

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