JSSLC MOOT COURT 2, 2023
JKA18006
BEFORE THE HON’BLE HIGH COURT OF SONAPUR
APPELLATE JURISDICTION
Misc Appeal___/2023
MR. TONY……………………………………APPELLANT
VERSUS
MRS. SMILE.…………………………………….RESPONDENT
WRITTEN SUBMSISSION ON BEHALF OF THE RESPONDENT
Most respectfully submitted to the Hon’ble High court of Sonapur
Counsel for the Respondent Respondent
Sd/- (Signature) Sd/-
MEMORIAL ON BEHALF OF THE RESPONDENTS
JSSLC MOOT COURT 2, 2023
TABLE OF CONTENTS
LIST OF ABBREVIATION……………………………………………………………. i
INDEX OF AUTHORITIES……………………………………………………………. ii
STATEMENT OF JURISDICTION………………………………………………...…iii
STATEMENT OF FACTS………………………………………………………….…. v
STATEMENT OF ISSUES…………………………………………………. ….…….vi
SUMMARY OF ARGUMENTS………………………………………………………. vii
ARGUMENTS ADVANCED………………………………………………………….01
1. Whether The Appeal Is Maintainable?
2. Whether The Appellant Was Subjected To Matrimonial Cruelties By The
Respondent -Wife?
3. Whether There Is Possibility Of Condonation Of The Cruelty And Restitution Of
Conjugal Rights?
PRAYER…………………………………………………………….……………….12
MEMORIAL ON BEHALF OF THE RESPONDENTS
JSSLC MOOT COURT 2, 2023
LIST OF ABBREVIATIONS
1. AIR: All India Reporter
2. Anr. : Another
3. Art. : Article
4. Co. : Company
5. Edn. : Edition
6. Hon’ble : Honourable
7. Ltd. : Limited
8. No. : Number
9. Ors. : Others
10. PIL : Public Interest Litigation
11. SC : Supreme Court
12. SCC : Supreme Court Case.
13. SCR : Supreme Court Reporter.
14. Sec. : Section
15. Suppl. : Supplement
16. u/A : Under Article
17. UOI : Union of India
18. v : Versus
MEMORIAL ON BEHALF OF THE RESPONDENTS
JSSLC MOOT COURT 2, 2023
INDEX OF AUTHORITIES
BOOKS REFERRED
1. D.D. BASU, “CONSTITUTION OF INDIA”, LEXIS NEXIS, NAGPUR, 14TH EDN.
(2009).
2. H.M. SEERVAI, “CONSTITUTIONAL LAW OF INDIA”, UNIVERSAL LAW
PUBLICATION, 25TH EDN. (REP 2012).
3. JAIN M.P., “INDIAN CONSTITUTIONAL LAW”, WADHWA AND COMPANY,
NAGPUR, 5TH EDN. (REP.2005).
4. P.M. BAKSHI, “THE CONSTITUTION OF INDIA”, UNIVERSAL LAW PUBLISHING
CO. PVT. LTD., 9TH EDN
5. V. SUDHISH PAI, “WORKING OF THE CONSTITUTION: CHECKS AND
BALANCES”, EASTERN BOOK CO. PVT. LTD,
STATUTES AND RULES REFERRED
1. CONSTITUTION OF INDIA,1950
2. THE DIVORCE ACT, 1869,
3. THE FAMILY COURTS ACT, 1984
MEMORIAL ON BEHALF OF THE RESPONDENTS
JSSLC MOOT COURT 2, 2023
LIST OF WEBSITES REFERRED
http://www.cdjlawjournal.com
http://www.ebc-india.com
http://www.judisnic.in
http://www.lawmanblog.blogspot.in
http://www.lawteacher.net
http://www.legalpundits.com
http://www.lexisite.com
http://www.livelaw.com
http://www.manupatra.com
http://www.stpl-india.in
www.lexisnexisdvance.com
www.manupatrafast.com
www.thehindu.com
The Economic Times (indiatimes.com)
MEMORIAL ON BEHALF OF THE RESPONDENTS
JSSLC MOOT COURT 2, 2023
TABLE OF CASES
TABLE OF CASES
SL.No. NAME OF THE CASE CITATION
1. Samar Ghosh v. Jaya (2007) 4 SCC 511
Ghosh
2. Libin Varghese (2022) 5 KLT 448
Vs.
Rajani Anna Mathew
3. Dr. Uthara Vs. Dr. (2022) 2 KLT 175
Sivapriyan
4. Narayan Ganesh Dastane ((1975) 2 SCC 326)
vs. Sucheta Narayan
Dastane
5. Kerela High Court Mary 2022 0 Supreme(Ker)
Margret vs Jos P Thomas , 88
6. Vishwanath Agrawal vs. (2012) 7 SCC 288
Sarla Vishwanath Aarawal
7. Libin VargheseVs.Rajani (2022) 5 KLT 448
Anna Mathew (2022) 5
KLT 448
8. V. Bhagat Vs. D. Bhagat, (1994) 1 SCC 337
9. Sobha Rani vs. Madhukar (1988) 1 SCC
Reddi ((1988) 1 SCC
MEMORIAL ON BEHALF OF THE RESPONDENTS
JSSLC MOOT COURT 2, 2023
STATEMENT OF JURISDICTION
The Hon’ble High Court of Sonapur has the jurisdiction in this matter under section 19 of
The Family Court Act of 1984;
Section 19. Appeal.—(1) Save as provided in sub-section (2) and notwithstanding anything contained
in the Code of Civil Procedure,1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of
1974) or in any other law, an appeal shall lie from every judgment or order, not being an
interlocutory order, of a Family Court to the High Court both on facts and on the law.
(2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the
parties2 [or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of
1974): Provided that nothing in this sub-section shall apply to any appeal pending before a High
Court or any order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)
before the commencement of the Family Courts (Amendment) Act, 1991 (59 of 1991).]
(3) Every appeal under this section shall be preferred within thirty days from the date of the
judgment or order of a Family Court. 2 [(4) The High Court may, of its motion or otherwise, call for
and examine the record of any proceeding in which the Family Court situate within its jurisdiction
passed an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) to satisfy itself
as to the correctness, legality or propriety of the order, not being an interlocutory order, and as to
the regularity of such proceeding.] 3 [(5)] Except as aforesaid, no appeal or revision shall lie to any
court from any judgment, order or decree of a Family Court. 4 [(6)] An appeal preferred under sub-
section (1) shall be heard by a Bench consisting of two or more Judges
MEMORIAL ON BEHALF OF THE RESPONDENTS
JSSLC MOOT COURT 2, 2023
STATEMENT OF FACTS
1 .The Appellant married the respondent on 5.3.2006 at Orlean's church, Bekal as per
Christian rites and custom .Both of them were employed in Sentria, Sonapur and two children
were born in their lawful wedlock.
2.They were leading a very cordial and smooth marital relationship till 2018.As per the
divorce petition filed by Tony (appellant in this instant appeal) alleged that after 2018 Smile
(respondent in the instant appeal) developed some behavioural abnormalities, and she often
picked up quarrel with him for no reason, alleging illicit relationship with other women,
further she also failed to perform her duties and responsibilities as a wife and mother.
3.The appellant further alleges that the respondent on few occasions slapped on his face and
once pointed a knife at him and threatened him with death.The appellant was assaulted and
humiliated in front of his children and public, and she made his close-relatives to turn against
him.Because of the indifferent, abusive and violent behavior of the respondent, he became
mentally stressed and physically ill.According to the appellant, their marital relationship was
irretrievably broken and hence filed a petition for decree of divorce before the Family Court,
Bekal under Section 10(1)(x)f the Divorce Act, 1869, for dissolving his marriage with the
respondent, on the ground of matrimonial cruelties.
4.According to respondent, her marital life with the appellant was so smooth till 2018 and
thereafter, he was trying to avoid her and her children as the appellant developed some illicit
intimacy with a lady named Tanu.
5.According to her, the appellant was concocting reasons to keep himself away from his wife
and children.She was never cruel to the husband and she never assaulted or threatened
him.She needs her husband and her children their father.The respondent deposed that there
were no serious issues between them so as to dissolve their marriage, and she wanted her
husband back to her life.According to her, she was not alleging any kind of illicit relationship
against the appellant.The Family Court, on analyzing the facts and evidence, found that the
appellant failed to prove the allegations of cruelty against the respondent so as to dissolve
their marriage, and hence the OP was dismissed.Aggrieved by the order, the appellant prefers
an appeal before the High Court of Sonapur.
MEMORIAL ON BEHALF OF THE RESPONDENTS
JSSLC MOOT COURT 2, 2023
STATEMENT OF ISSUES
4. WHETHER THE APPEAL IS MAINTAINABLE?
5. WHETHER THEAPPELLANT WAS SUBJECTED TO MATRIMONIAL
CRUELTIES BY THE RESPONDENT -WIFE?
6. 3.WHETHER THERE IS POSSIBILTY OF CONDONATION OF THE CRUELTY
AND RESTITUTION OF CONJUGAL RIGHTS?
MEMORIAL ON BEHALF OF THE RESPONDENTS
JSSLC MOOT COURT 2, 2023
SUMMARY OF ARGUMENTS
1. WHETHER THE APPEAL IS MAINTAINABLE?
The appeal filed is not maintainable because there is no cruelty and there is a scope
for an amicable solution in the form of restitution of conjugal rights. The Supreme
Court has held that cruelty depends on the social background of parties, the way of
life, relations, temperament and emotions, and the context in which it was made.
Cruelty is a course of conduct that adversely affects the other, and can be mental or
physical, intentional or unintentional. Marriage is a legal contract between spouses
that establishes rights and obligations and is the foundation of a strong society.
2. WHETHER THE APPELLANT WAS SUBJECTED TO MATRIMONIAL
CRUELTIES BY THE RESPONDENT -WIFE?
That there was no cruelty done by the respondent on the appellant, as the appellant
was not suffering from any mental or physical ailments leading to behavioural
abnormalities. The Divorce Act 1869 provides grounds for dissolution of marriage if
the husband has treated the petitioner with such cruelty as to cause a reasonable
apprehension that it would be harmful or injurious to live with them. Marriage is a
legal contract between spouses that establishes rights and obligations, and family is
the foundation of society.
3. WHETHER THERE IS A POSSIBILITY OF CONDONATION OF THE
CRUELTY AND RESTITUTION OF CONJUGAL RIGHTS?
The concept of cruelty differs from person to person depending on upbringing, level
of sensitivity, educational, family and cultural background, financial position, social
status, customs, traditions, religious beliefs, human values and their value system. The
court held that one party cannot unilaterally decide to walk out of a marriage when
sufficient grounds are not there for a divorce.
MEMORIAL ON BEHALF OF THE RESPONDENTS
JSSLC MOOT COURT 2, 2023
ARGUMENTS ADVANCED
1. WHETHER THE APPEAL IS MAINTAINABLE?
It is respectfully submitted before this Hon’ble Court that the appeal filed is not maintainable
because there is no cruelty and there is a scope of amicable solution in the form of restitution
of conjugal rights The Appellant married the respondent on 5.3.2006 at Orlean’s church,
Bekal as per Christian rites and custom. Both of them were employed in Sentria, Sonapur and
two children were born in their lawful wedlock. They were leading a very cordial and smooth
marital relationship till 2018. The divorce petition filed by Tony (appellant in this instant
appeal) alleged that after 2018 Smile (respondent in the instant appeal) developed some
behavioural abnormalities If so, as a responsible husband, he was bound to know the reason
for such behavioural changes of his wife, whether it be physical, mental or psychological. He
has no case that he ever took his wife to a psychologist or psychiatrist to know the reason for
her behavioural abnormalities.
In the case of the appellant that while their marital relationship was going very smoothly, the
respondent developed some behavioural abnormalities assume significance here. Without any
solid reason, there was no chance for any such behavioural changes on the part of a wife,
unless there were some physical, mental or psychological issues. The appellant has no case
that the respondent was suffering from any mental or physical ailments leading to
behavioural abnormalities. When the wife had reasonable grounds to suspect the chastity or
fidelity of her husband, and if she questions him, or expresses her deep pain and sorrow
before him, it cannot be termed as a behavioural abnormality, as it is the natural human
conduct of a normal wife. The normal human reactions or responses from a wife, on knowing
that her husband was having an illicit connection with another lady, cannot be termed as a
behavioural abnormality or cruelty on the part of the wife, to dissolve their marriage. The
available facts and circumstances point to the fact that in the year 2017, the appellant
developed some illicit intimacy with another lady and he wanted to avoid his wife and
children from his life, to live with that lady
Courts cannot come to the aid of an erring person to legalise his activities, which are per se
illegal. If the husband having an unholy alliance with another woman wants to avoid his
lawfully wedded wife and his three little children, he cannot seek the assistance of a court of
MEMORIAL ON BEHALF OF THE RESPONDENTS
JSSLC MOOT COURT 2, 2023
law to get his present relationship legalised by dissolving his lawful marriage, without any
valid reasons for the same.
As by the recent judgement of Kerela High Court Mary Margret vs Jos P Thomas,2022 0
Supreme(Ker) 88 1wherein other personal laws were made equal to Christian personal laws in
the matter of seeking divorce on the ground of cruelty the following cases can be referred to
The Supreme Court in Vishwanath Agrawal vs. Sarla Vishwanath Agrawal, (2012) 7 SCC
2882 has categorically held that cruelty depends upon the social background of parties, the
way of life, relations, temperament and emotions
The Supreme Court in V. Bhagat Vs. D. Bhagat, (1994) 1 SCC 337 3has explained the
concept of cruelty as under Mental cruelty 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. In other words, mental cruelty must be of such a nature that the parties cannot
reasonably be expected to live together. The situation must be such that the wronged party
cannot reasonably be asked to put up with such conduct and continue to live with the other
party. It is not necessary to prove that the mental cruelty is such as to cause injury to the
health of the petitioner. While arriving at such a conclusion, regard must be had to the social
status, educational level of the parties, the society they move in, the possibility or otherwise
of the parties ever living together in case they are already living apart and all other relevant
facts and circumstances which it is neither possible nor desirable to set out exhaustively.
What is cruelty in one case may not amount to cruelty in another case. It is a matter to be
determined in each case having regard to the facts and circumstances of that case. If it is a
case of accusations and allegations, regard must also be had to the context in which they were
made.
In Sobha Rani vs. Madhukar Reddi ((1988) 1 SCC 4, the Apex Court examined the concept of
cruelty and held that the word 'cruelty' has not been defined in the Hindu Marriage Act. It has
been used in Section 13(1)(i)(a) of the Act in the context of human conduct or behaviour
concerning or in respect of matrimonial duties or 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, it is a question of fact and degree. If it is mental, the enquiry
1
Kerela High Court Mary Margret vs Jos P Thomas ,2022 0 Supreme(Ker) 88
2
Vishwanath Agrawal vs. Sarla Vishwanath Aarawal, (2012) 7 SCC 288
3
V. Bhagat Vs. D. Bhagat, (1994) 1 SCC 337
4
Sobha Rani vs. Madhukar Reddi ((1988) 1 SCC
MEMORIAL ON BEHALF OF THE RESPONDENTS
JSSLC MOOT COURT 2, 2023
must begin as to the nature of the cruel treatment and then as to the impact of such treatment
on the mind of the spouse. Whether it caused reasonable apprehension that it would be
harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by
taking into account the nature of the conduct and its effect on the complaining spouse.
In the case on hand, the parties are Christians governed by the Divorce Act of 1869. Section
10(1)(X) of the Divorce Act, of 1869 reads thus:
"10. Grounds for dissolution of marriage.--(1) Any marriage solemnized, whether before or
after the commencement of the Indian Divorce (Amendment) Act, 2001, may, on a petition
presented to the District Court either by the husband or the wife, be dissolved on the ground
that since the solemnization of the marriage, the respondent--
xxx xxxx xxxx
xxx xxxx xxxx
(x) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the
mind of the petitioner that it would be harmful or injurious for the petitioner to live with the
respondent."
The appellant has to establish that since the solemnisation of the marriage, the respondent has
treated him with such cruelty as to cause a reasonable apprehension in his mind that it would
be harmful or injurious for him to live with the respondent. Without establishing cruelty to
such an extent, no divorce can be granted under Section 10(1)(X) of the Divorce Act.
From time immemorial marriage was considered solemn, and sanctity attached to the
relationship of a man and wife united in marriage was considered inseparable, and it was the
very foundation of a strong society. Marriage is a socially or ritually recognized union, or
legal contract between spouses, that establishes rights and obligations between them, between
them and their children, and between them and their in-laws. Family is the basic unit of
society, from where we learn virtues, values, skills and behaviour. Marriage is not a mere
ritual or an empty ceremony for licencing the sexual urge of the parties.
Mere quarrels, ordinary wear and tear of matrimonial relationships or casual outbursts of
some emotional feelings cannot be treated as cruelties warranting a divorce. From the facts of
MEMORIAL ON BEHALF OF THE RESPONDENTS
JSSLC MOOT COURT 2, 2023
the case on hand, it is obvious that the unholy alliance of the husband with some other lady
has caused some disturbances in the family life of the appellant and respondent, which were
sailing smoothly with their three girl children. Even according to the mother and close
relatives of the appellant, such an unholy relationship was started in the year 2017, and in the
year 2018, the husband moved for divorce. The parties are living separately from 2018
onwards. Even now, the respondent is ready for a reunion as she wants her husband, and her
children their father.
Since, no act of cruelty, able to cause a reasonable apprehension in the mind of the appellant
that it would be harmful or injurious for him to live with the respondent was proved by the
appellant, he is not entitled to get a decree of divorce on the ground of matrimonial cruelties.
Samar Ghosh v. Jaya Ghosh [(2007) 4 SCC 511], 5 the human mind is extremely complex and
human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore,
to assimilate the entire human behaviour in one definition is almost impossible. What is
cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs
from person to person depending upon his upbringing, level of sensitivity, educational,
family and cultural background, financial position, social status, customs, traditions, religious
beliefs, human values and their value system. But mere coldness or lack of affection cannot
amount to cruelty. Frequent rudeness of language, petulance of manner, indifference and
neglect may reach such a degree that it makes the married life for the other spouse absolutely
intolerable. It was further observed that mere trivial irritations, quarrels, normal wear and tear
of the married life which happens in day to day life would not be adequate for grant of
divorce on the ground of mental cruelty. The married life should be reviewed as a whole and
a few isolated instances over a period of years will not amount to cruelty. The ill-conduct
must be persistent for a fairly lengthy period, where the relationship has deteriorated to an
extent that, because of --.
the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with
the other party any longer, may amount to mental cruelty.
The law and religion consider marriage as an institution by itself and parties to the marriage
are not permitted to walk away from that relationship unilaterally, unless and until they
satisfy the legal requirements to dissolve their marriage through a court of law or in
accordance with the personal law which govern them.
5
Samar Ghosh v. Jaya Ghosh [(2007) 4 SCC 511]
MEMORIAL ON BEHALF OF THE RESPONDENTS
JSSLC MOOT COURT 2, 2023
The respondent deposed that there were no serious issues between them so as to dissolve their
marriage, and she wanted her husband back to her life. According to her, she was not alleging
any kind of illicit relationship against the appellant
In Dr. Uthara vs. Dr. Sivapriyan [MANU/KE/0438/2022 : 2022 (2) KLT 175] 6, we had
occasion to deal with a similar question of non-co-habitation and long separation as a ground
for divorce. In that decision we have held that 'the period of non-co-habitation however long
it may be, if it was due to deliberate avoidance or due to pendency of cases filed by one party,
the other party cannot be found fault with, when that party is still ready to continue his/her
matrimonial life, and no grounds recognized by law are established against that party to break
their nuptial tie. So legally, one party cannot unilaterally decide to walk out of a marriage,
when sufficient grounds are not there justifying a divorce, under the law which governs them,
saying that due to non-co-habitation for a considerable long period, their marriage is dead
practically and emotionally. No one can be permitted to take an incentive out of his own
faulty actions or inactions.' In this case it is the appellant who walked out and living separetly
the appellant and respondent were leading a happy married life, and they still want to see
them live together along with their children. If the appellant is ready to come back to his wife
and children, they are ready to accept him, and there is nothing to show that the chances of an
amicable reunion is foreclosed forever
2. WHETHER THEAPPELLANT WAS SUBJECTED TO MATRIMONIAL
CRUELTIES BY THE RESPONDENT -WIFE?
It is humbly submitted before the Hon’ble High court of Sonapur that there was no cruelty
done by the respondent on the appellant according to fact sheets para 1 and 2
The Appellant married the respondent on 5.3.2006 at Orlean’s church, Bekal as per Christian
rites and custom. Both of them were employed in Sentria, Sonapur and two children were
born in their lawful wedlock. They were leading a very cordial and smooth marital
relationship till 2018. As per the divorce petition filed by Tony (appellant in this instant
appeal) alleged that after 2018 Smile (respondent in the instant appeal) developed some
behavioural abnormalities If so, as a responsible husband, he was bound to know the reason
for such behavioural changes of his wife, whether it be physical, mental or psychological. He
6
Uthara vs. Dr. Sivapriyan [MANU/KE/0438/2022 : 2022 (2) KLT 175]
MEMORIAL ON BEHALF OF THE RESPONDENTS
JSSLC MOOT COURT 2, 2023
has no case that he ever took his wife to a psychologist or psychiatrist to know the reason for
her behavioural abnormalities.
The case of the appellant that while their marital relationship was going very smoothly, the
respondent developed some behaviuoral abnormalities assumes significance here. Without
any solid reason, there was no chance for any such behavioural changes from the part of a
wife, unless there were some physical, mental or psychological issues. The appellant has no
case that the respondent was suffering from any mental or physical ailments leading to
behavioural abnormalities. When the wife had reasonable grounds to suspect the chastity or
fidelity of her husband, and if she questions him, or expresses her deep pain and sorrow
before him, it cannot be termed as a behavioural abnormality, as it is the natural human
conduct of a normal wife. The normal human reactions or responses from a wife, on knowing
that her husband was having illicit connection with another lady, cannot be termed as
behavioural abnormality or cruelty from the part of the wife, so as to dissolve their marriage.
The available facts and circumstances clearly point to the fact that in the year 2017 the
appellant developed some illicit intimacy with another lady and he wanted to avoid his wife
and children from his life, so as to live with that lady
Courts cannot come to the aid of an erring person to legalise his activities, which are per se
illegal. If the husband having unholy alliance with another woman wants to avoid his
lawfully wedded wife and his three little children, he cannot seek the assistance of a court of
law to get his present relationship legalised by dissolving his lawful marriage, without any
valid reasons for the same.
In the case on hand, the parties are Christians governed by the Divorce Act 1869. Section
10(1)(X) of the Divorce Act, 1869 reads thus:
"10. Grounds for dissolution of marriage.--(1) Any marriage solemnized, whether before or
after the commencement of the Indian Divorce (Amendment) Act, 2001, may, on a petition
presented to the District Court either by the husband or the wife, be dissolved on the ground
that since the solemnization of the marriage, the respondent--
xxx xxxx xxxx
xxx xxxx xxxx
MEMORIAL ON BEHALF OF THE RESPONDENTS
JSSLC MOOT COURT 2, 2023
(x) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the
mind of the petitioner that it would be harmful or injurious for the petitioner to live with the
respondent."
The appellant has to establish that since the solemnisation of the marriage, the respondent has
treated him with such cruelty as to cause a reasonable apprehension in his mind that it would
be harmful or injurious for him to live with the respondent. Without establishing cruelty to
such an extent, no divorce can be granted under Section 10(1)(X) of the Divorce Act.
From time immemorial marriage was considered as solemn, and sanctity attached to the
relationship of a man and wife united in marriage was considered inseparable, and it was the
very foundation of a strong society. Marriage is a socially or ritually recognized union, or
legal contract between spouses, that establishes rights and obligations between them, between
them and their children, and between them and their in-laws. Family is the basic unit of the
society, from where we learn virtues, values, skills and behaviour. Marriage is not a mere
ritual or an empty ceremony for licencing the sexual urge of the parties.
Mere quarrels, ordinary wear and tear of matrimonial relationships or casual outburst of some
emotional feelings cannot be treated as cruelties warranting a divorce. From the facts of the
case on hand, it is obvious that the unholy alliance of the husband with some other lady has
caused some disturbances in the family life of the appellant and respondent, which they were
sailing smoothly with their three girl children. Even according to the mother and close-
relatives of the appellant, such an unholy relationship was started in the year 2017, and in the
year 2018 itself, the husband moved for divorce. The parties are living separately from 2018
onwards. Even now, the respondent is ready for a reunion as she wants her husband, and her
children their father.
Since, no act of cruelties, able to cause a reasonable apprehension in the mind of the appellant
that it would be harmful or injurious for him to live with the respondent was proved by the
appellant, he is not entitled to get a decree of divorce on the ground of matrimonial cruelties.
MEMORIAL ON BEHALF OF THE RESPONDENTS
JSSLC MOOT COURT 2, 2023
3. WHETHER THERE IS POSSIBILTY OF CONDONATION OF THE CRUELTY
AND RESTITUTION OF CONJUGAL RIGHTS?
It is humbly submitted in the Hon’ble High court of Sonapur that As observed by the Apex
Court in Samar Ghosh v. Jaya Ghosh [(2007) 4 SCC 511], human mind is extremely complex
and human behaviour is equally complicated. Similarly human ingenuity has no bound,
therefore, to assimilate the entire human behaviour in one definition is almost impossible.
What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty
differs from person to person depending upon his upbringing, level of sensitivity,
educational, family and cultural background, financial position, social status, customs,
traditions, religious beliefs, human values and their value system. But mere coldness or lack
of affection cannot amount to cruelty. Frequent rudeness of language, petulance of manner,
indifference and neglect may reach such a degree that it makes the married life for the other
spouse absolutely intolerable. It was further observed that mere trivial irritations, quarrels,
normal wear and tear of the married life which happens in day to day life would not be
adequate for grant of divorce on the ground of mental cruelty. The married life should be
reviewed as a whole and a few isolated instances over a period of years will not amount to
cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship
has deteriorated to an extent that, because of --.
the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with
the other party any longer, may amount to mental cruelty.
The law and religion consider marriage as an institution by itself and parties to the marriage
are not permitted to walk away from that relationship unilaterally, unless and until they
satisfy the legal requirements to dissolve their marriage through a court of law or in
accordance with the personal law which govern them.
The respondent deposed that there were no serious issues between them so as to dissolve their
marriage, and she wanted her husband back to her life. According to her, she was not alleging
any kind of illicit relationship against the appellant
In Dr. Uthara vs. Dr. Sivapriyan [MANU/KE/0438/2022 : 2022 (2) KLT 175], we had
occasion to deal with a similar question of non-co-habitation and long separation as a ground
for divorce. In that decision we have held that 'the period of non-co-habitation however long
MEMORIAL ON BEHALF OF THE RESPONDENTS
JSSLC MOOT COURT 2, 2023
it may be, if it was due to deliberate avoidance or due to pendency of cases filed by one party,
the other party cannot be found fault with, when that party is still ready to continue his/her
matrimonial life, and no grounds recognized by law are established against that party to break
their nuptial tie. So legally, one party cannot unilaterally decide to walk out of a marriage,
when sufficient grounds are not there justifying a divorce, under the law which governs them,
saying that due to non-co-habitation for a considerable long period, their marriage is dead
practically and emotionally. No one can be permitted to take an incentive out of his own
faulty actions or inactions.' In this case it is the appellant who walked out and living separetly
the appellant and respondent were leading a happy married life, and they still want to see
them live together along with their children. If the appellant is ready to come back to his wife
and children, they are ready to accept him, and there is nothing to show that the chances of an
amicable reunion is foreclosed forever.
MEMORIAL ON BEHALF OF THE RESPONDENTS
JSSLC MOOT COURT 2, 2023
PRAYER
Wherefore, in the light of contentions presented, arguments advanced and authorities cited,
the counsel for the Respondent most humbly and respectfully pray before this Hon’ble
Supreme Court of Rakshya that it may be pleased to adjudge and declare that:
1. The appeal is not maintainable.
2. That there is no infirmity in the finding returned by the Family Court that the
appellant has not been treated with cruelty and cruelty that has been proved on
record is not sufficient and doesn’t constitutes cruelty as required under
Section 10(1)(x)f the Divorce Act, 1869.
3. That there are grounds for restitution of conjugal rights.
4. That the Hon’ble court dismisses this appeal.
The court may also pass any order as it deems fit in terms of equity, justice and good
conscience.
And for the act of kindness, your lordships, Respondent shall as duty bound ever humbly
pray
Respectfully submitted
……………………….
(Counsel for respondent)
MEMORIAL ON BEHALF OF THE RESPONDENTS
JSSLC MOOT COURT 2, 2023
MEMORIAL ON BEHALF OF THE RESPONDENTS
