Team Code: 01

Intra College Moot Court Competition at NEF Law College, 2016

1st April 2nd April 2016

BEFORE THE HONBLE HIGH COURT OF GAUHATI

ANIL (APPELLANT)
V.
RASHMI (RESPONDENT)

ON SUBMISSION TO THE REGISTRY OF THE COURT OF THE HONBLE HIGH

COURT OF GAUHATI

MEMORIAL ON BEHALF OF THE RESPONDENT RASHMI

INDEX

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ABBREVIATIONS.......................................................................................................... 2
INDEX OF AUTHORITIES............................................................................................... 3
Case List.................................................................................................................... 3
Legislation used........................................................................................................... 3
Books Referred............................................................................................................ 3
Website used............................................................................................................... 4
STATEMENT OF JURISDICTION...................................................................................... 5
STATEMENT OF FACTS.................................................................................................. 6
ISSUES RAISED............................................................................................................ 7
SUMMARY OF ARGUMENTS.......................................................................................... 8
ARGUMENT ADVANCED............................................................................................. 10
PRAYER..................................................................................................................... 16

Memorial on behalf of the Respondent

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ABBREVIATIONS

AIR = All India Reporter

SCC = Supreme Court Case
SCR = Supreme Court Reporter
i.e. = That is
Honble = Honourable
HC = High Court
SC = Supreme Court
Sec = Section
Cal = Calcutta
V. = Versus

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INDEX OF AUTHORITIES

Case List
Romesh Chander vs. Savitri, AIR 1995, SC 851
N.K. Ghosh v. Mita Ghosh, AIR 1986 Cal
Russel v. Russel, 1897 AC 395
Madan Mohan Kohli v. Sarla Kohli, AIR 1967 Punjab, 397

Legislation used
The Hindu Marriage Act, 1955
The Guardians and Ward Act, 1890
The Indian Contract Act, 1872
The Hindu Minority and Guardianship Act, 1956
The Contempt of Courts Act, 1971
The Code of Civil Procedures, 1908

Books Referred
Dr. Paras Diwan, Modern Hindu Law, 22nd Edition, 2013.
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Dr. R. K. Bangia, Contract I, 6th Edition, Reprint 2014

Dr. S. R. Myneni, Hindu Law (Family Law I), 2nd Edition, 2010
Universal Hindu Law Bare Act, 2009
C. K. Takwani, Civil Procedures with Limitation Act, 1963, 7th Edition

Website used
www.manupatrafast.com
www.scconline.com
www.indiankanoon.com
www.legallyindia.com
www.legal-dictionary.thefreedictionary.com
www.legalserviceindia.com
www.lawmirror.com

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STATEMENT OF JURISDICTION

The Respondent humbly submits this memorandum in response to the petition filed before this
Honble Court. The petition invokes its appellate jurisdiction under section 47 of the Guardians
and Ward Act, 1890. It sets forth the facts and the laws on which the claims are based.

Memorial on behalf of the Respondent

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STATEMENT OF FACTS

1. Marriage between Appellant and Respondent was solemnized on 31-01-2004, i.e. 12

years ago as per the Hindu Religious Rites & Customs out of which, a son named Rahul
was born.
2. Couple started living separately after 3 months of marriage because of misunderstanding.
3. Respondent was compelled to file a divorce petition on the ground of cruelty.
4. Appellant filed original petition under Guardianship & Wards Act for the custody of the
minor and a petition under section 9 of the Hindu Marriage Act for Restitution of
Conjugal Rights.
5. Respondent filed written statement against the petition filed by Appellant.
6. Ex Parte decree for Divorce in favour of the Respondents was passed and custody of
child was also given to her.
7. Petition for Restitution of Conjugal Rights filed by the Appellant was dismissed for
default on the part of the Appellant.
8. The court while deciding grant for custody of child took into consideration the welfare of
the child.
9. Against the order of the trial court, the Appellant filed an appeal before the High Court of
Gauhati.

Memorial on behalf of the Respondent

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ISSUES RAISED

1. Whether the Appellant Mr. Anil has the locus standi to file an appeal in the High Court?
2. Will remarriage of the Respondent amount to termination of guardianship?
3. Whether the decision of the subordinate court of dismissing the petition for Restitution of
Conjugal Rights was justified?
4. Whether the custody of the child to his mother will be detrimental to his physical and mental
welfare? And whether the financial condition of the mother shall be taken into consideration
while giving away the custody of the child?
5. Whether the act of the husband (accusations of unchastity) amounted to cruelty towards his
wife?

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SUMMARY OF ARGUMENTS

I.

The Appellant Mr. Anil does not have the locus standi to file an appeal in the
High Court.

The appellant has made a default in his previous petition for restitution of conjugal rights for
which an ex parte decree was passed against the appellant resulting into contempt of court, so
the appellant has extinguished his right to appeal before the High Court.
II.

The remarriage of the respondent does not amount to termination of

guardianship.

The remarriage of the respondent does not amount to termination of guardianship. Firstly, the
deposition relating remarriage of the respondent is not at all valid as a deposition is more or less
of an agreement and the consent of both parties are required. As the appellant failed to appear
before the court and considering the irregularity of the deposition, the question of termination of
guardianship is invalid. Secondly, the minor child was living with the respondent since his birth
and it should be taken into consideration for the guardianship of the minor child, where the
welfare of the child should be the paramount consideration.
III.

The decision of the subordinate court of dismissing the petition for Restitution of
conjugal rights was justified.

The decision of the subordinate court of dismissing the petition for restitution of conjugal rights
is justified. The respondent was living separately just after three months of the marriage and both

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the parties had parted their ways which makes it clear that there was no cohabitation between the
parties. So the question of filing the petition for restitution of conjugal rights would not arise. On
the other hand it is established that the behavior of the husband has been cruel and torturesome
towards the respondent and she has a reasonable excuse to live apart from the appellant and the
dismissal of the petition filed by the appellant for the restitution of conjugal rights is admissible.
IV.

The custody of the child to his mother will not be detrimental to his physical and
mental welfare and whether the financial condition of the mother shall be taken
into consideration while giving away the custody of the child.

Firstly, the custody of the child to his mother will not be detrimental to his physical and mental
welfare as considering the interview of respondents minor son Rahul the Udalguri Family Court
held that it would be ideal for the minor sons welfare to stay with his mother as Section 13(1) in
The Hindu Minority and Guardianship Act, 1956 states that In the appointment or declaration of
any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the
paramount consideration.
V. Whether the act of the husband (accusations of unchastity) actually amounted to cruelty
towards his wife?
The act of the husband amounted to cruelty. The appellant criticized, belittled and humiliated the
respondent emotionally causing fear and loss of her self-esteem. It also eroded the credibility of
the appellant because of the false allegations of unchastity questioning the character of the
respondent.

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ARGUMENT ADVANCED

I.

The Appellant Mr. Anil does not have the locus standi to file an appeal in the
High Court.
1. Since the Appellant could not comply with the court procedures. So it would amount
to contempt of court in an indirect or constructive manner for which an ex parte
decree was passed.
Civil contempt of Court has been defined under section 2(b) of the Contempt of Court
Act of 1971 as willful disobedience to any judgment, decree, discretion, order, writ or
other process of court or willful breach of an undertaking given to a court.
Ss the definition above ascertains that the willful absence of the Appellant from the
court procedures without any reasonable ground would amount to disobedient, as his
presence was pertinent so as to bring upon his grievances before the court. So that the
court to hear both the sides and there after come to a conclusion.
But by not complying with court procedures, he indeed wasted the precious time of
court which makes his petition appeared to be vexatious.
2. Further the absence of the appellant from the trial court without reasonable cause
while the proceedings of his petition for restitution of conjugal rights vividly shows
how casual is the appellant toward such a crucial manner.
So the appellant has extinguished his right to appeal on account of the above reasons.

II.

The remarriage of the respondent will not amount to termination of

guardianship.

No, the remarriage of the respondent will not amount to termination of guardianship.
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1. At the first place, the remarriage of the Respondent cannot obscure the fact that the
Respondent is the natural guardian of the child, since she is his biological mother and
would also continue to be his guardian until she is death.
Section 4(c) of the Hindu minority and guardianship act, 1956 reads Natural guardian means any of the guardians mentioned in section 6(a), which reads the natural guardian of a Hindu minor in case of a boy is his father, and after him, the
mother; provided that the custody of a minor who has not completed the age of 5 years
shall ordinarily be with the mother.
Section 4(c) when read along with section 6(a) of the hindu guardianship act, 1956,
would reveal how biased and partial is the statute which encourages paternity irrespective
of taking into account the welfare of the child.
2. The minor child was living with the respondent since his birth and it should be taken into
consideration for the guardianship of the minor child to the respondent, as the child has
build an emotional bond with his mother than his father. So the separation of the child
with the respondent would affect the mental condition of the minor child, where the
welfare of the child should be the paramount consideration.
3. The deposition with regard to her marriage which appears to be an agreement is not valid.
Since the deposition is an oath, a promise to certain fact and in context to this case the
Respondent promise to abstain from remarry.
But even if the deposition is considered as an agreement, it would be void in nature.
Section 26 of the Indian Contract Act, 1872, reads
Every agreement in restraint of the marriage of any person, other than a minor, is void
Moreover it lacks the very essence of an agreement that the promise has to be made from
both the sides. So the agreement does not have a binding effect as the Appellant was
absent.
4. The remarriage of the respondent does not violate any law. It is mentioned in Section 15
of the Hindu Marriage Act 1955 that
when a marriage has been dissolved by a decree of divorce and either there is no right of
appeal against the decree or, there is such a right of appeal, the time for appealing has

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expired without an appeal having been presented, or an appeal has been presented but has
been dismissed, it shall be lawful for either party to the marriage to marry again.
Moreover, remarriage of the Respondent does not seem to hinder her role as a mother or
guardian, so her position as a guardian is undisputable. Neither would it affect the
upbringing of the child. Rather it would make the family stable, and rekindle the loss
happiness due to separation of the Appellant and the Respondent.
III.
The decision of the subordinate court dismissing the petition for restitution of
conjugal right was justified.
1. Marriage implies consortium i.e., the husband and wife are entitle to each others
company and comfort cause of action arises when one party withdraws from the society
of the other. Thus, if it is established that the behavior of the husband has been cruel and
torturesome towards wife then the wife has reasonable excuse for her to live apart from
the husband and the petition by the husband for the restitution of conjugal rights is liable
2.

to be dismissed.
In the case Romesh Chander vs. Savitri1, Supreme Court held that When marriage is
dead, emotionally and practically, and there is no chance of its being retrieved,
continuance of it would be cruelty.
Furthermore the court in their decision have held that the desertion by the petitioner for a
period of not less than 2 (two) years immediately preceding the application would serve
to be valid ground for separate living disentitling the others spouse to a decree for
restitution of conjugal rights. However, in the instance case the petitioner had defaulted in

complying with the decree of court, so the petition was rightfully dismissed.
3. From the fact it is evident that just after three months of the marriage the couple had
separated which makes it clear that there was no cohabitation between the parties. So the
question of filing petition for restitution of conjugal rights would not arise.

1 AIR 1995, SC 851

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IV.

The custody of the child to his mother will not be detrimental to his physical and
mental welfare and the financial condition of the mother shall not be taken into

consideration while giving away the custody of the child.

1. According to section 17(1) of the Guardians and Ward Act, 1890, which reads
In appointing or declaring the guardian of a minor, the Court shall, subject to the
provisions of this section, be guided by what, consistently with the law to which the
minor is subject, appears in the circumstances to be for the welfare of the minor.
In considering what will be for the welfare of the minors, the court shall have regards
to the age, sex and religion of the minor, the character and capacity of the proposed
guardian.
If the minor is old enough to form an intelligent preference, the court may consider the
preference.
The court shall not appoint or declare any person to be a guardian against his will.
2. From the facts of the case, it can be implied that while the child Rahul was being
interviewed by the trial court, the court was convinced that Rahul, the minor who was 12
years old could make an intelligent preference and Rahul expressed his willingness and
preferred and desired to continue living with his mother.
3. The court was of the view that in matter of custody of the child, the paramount
consideration should be the welfare of the child.
4. So, the courts decision to deliver the custody of child to his mother shall not be
detrimental.
5. Furthermore, the separation of the child, who has been living with his mother at this stage
will affect the mental condition and the education of the child, his academic brilliance
V.

and future.
The Act of the husband (Accusation of unchasitity) amounted to cruelty towards
her wife.

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Yes, the act of the husband of accusation of unchastity upon his wife amounted to cruelty
towards her.
1. In the instant case, it is apparent that since the inception of the marriage there was
misunderstanding between the Respondent and the Appellant. The misunderstanding had
shaped into such an ugly face that the couple had started living separately just after 3
months of their marriage. And upon that, the allegation of unchastity on his wife has
totally degraded the relationship of trust that is supposed to exist between a husband and
wife.
In this context, BERTRAND RUSSEL has rightly said thatI believe the marriage to be best and most important relation that can exist between two human
beings. The essence of a good marriage is respect for each others personality combined with
that deep intimacy, physical, mental and spiritual which makes serious love between men and
women most fructifying of all human experiences.
Again in the case of Russel v. Russel2, it has defined cruelty as a harsh conduct and of such
intensity and persistence of which would make it impossible for the spouse to operate the
marriage and live together without agony
The statement above is testament to the fact that there is no room for accusation of unchastity or
distrust among the spouses in any manner within the institution of marriage. And making such
statement would amount to cruelty and it would be impossible to re-instill that lost faith and
trust, resulting in dissolution of the marriage.

2 1897 AC 395
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2. Further section 13(1) (i a) of the Hindu Marriage Act, 1955 states that
Any marriage solemnized, 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 on the
ground that the other party-has after, the solemnization of the marriage, treated the
petitioner with cruelty.
The above mentioned provision of law covers the false allegations of unchastity under the ambit
of cruelty, which stands a ground for dissolution of marriage. The Delhi High Court has held
that, False, baseless, scandalous and malicious allegations made in written statement by
husband has the effect of causing deleterious effect on the mind of the wife and is the worst form
of cruelty which is sufficient to grant decree of divorce to wife.
In the cases, N.K. Ghosh v. Mita Ghosh3 and Madan Mohan Kohli v. Sarla Kohli, AIR 1967
Punjab, 397, the High Court of Calcutta and High Court of Punjab have held false accusation of
unchastity by one spouse against the other as mental cruelty of highest order.

3 AIR 1986 Cal

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PRAYER

In light of the issues raised, arguments advanced and authorities cited, the counsel for
the Respondent humbly prays that the Honble Court be pleased to adjudge, hold and declare:
1. That, the appeal petition filed by the appellant is not maintainable in the court of law.
2. That, the remarriage of the respondent will not affect the upbringing of the child
3. That, the custody of the child should stay with the respondent itself.
And pass any order that this Honble court may deem fit in the interest of equity, justice and
good conscience.
And for this act of kindness, the counsel for the respondent shall duty bound forever pray.

Sd/(Counsel for Respondent)

Memorial on behalf of the Respondent