A Moot Memorial of Divorce on the grounds of Cruelty, Study Guides, Projects, Research of Law

Download A Moot Memorial of Divorce on the grounds of Cruelty and more Study Guides, Projects, Research Law in PDF only on Docsity! IN THE COURT OF HON’BLE DISTRICT JUDGE AT ANMOL MATRIMONIAL CASE NO. ___ /2023 IN THE MATTER OF DISSOLUTION OF MARRIAGE UNDER SECTION 13 OF THE HINDU MARRIAGE ACT, 1955 Mrs. ANJALI KARMALI Wife of Mukund Deshmukh, Major in age, Housewife, r/o Anmol District ...PETITIONER VERSUS Mr. MUKUND DESHMUKH Major in age, Business, r/o Jagol District ...RESPONDENT MEMORIAL ON BEHALF OF THE PETITIONER _________________________ Counsel For Petitioner… SHAMITA A. ARSEKAR. TABLE OF CONTENTS 1. LIST OF ABBREVIATIONS…………………………03 2. INDEX OF AUTHORITIES…………………………..04 3. STATEMENT OF JURISDICTION ………………..07 4. STATEMENT OF FACTS……………………………08 5. ISSUES RAISED ……………………………………..11 6. ARGUMENTS ADVANCED…………………………12 7. PRAYER………………………………………………20 Page | 2  ALL MAHARASHTRA CASES DIGEST 2021 – An All- Maharashtra Law Reporter Publication  Author: LAL C. SAHITA; R.S. KELKAR; VIKAS L. SAHITA  ALL MAHARASHTRA CASES DIGEST 2022 – An All- Maharashtra Law Reporter Publication  Author: LAL C. SAHITA; R.S. KELKAR; VIKAS L. SAHITA  ALL MAHARASHTRA CASES DIGEST 2009 – An All- Maharashtra Law Reporter Publication  Author: LAL C. SAHITA; R.S. KELKAR; VIKAS L. SAHITA  SUPREME COURT ON FAMILY AND PERSONAL LAWS- VOLUME 3  Author: SURENDRA MALIK; SUDEEP MALIK  LAW OF MARRIAGE, MAINTENANCE, SEPARATION AND DIVORCE- THIRD EDITION  Author: S. KRISHNAMURTHI AIYAR  FAMILY LAW IN INDIA – 10TH EDITION  Author: PROF. G.C.V SUBBA RAO  JURISDICTION OF FAMILY COURT & DIVORCE  Author: Smt. P.V.P. LALITHA SIVA JYOTHI ONLINE SOURCES  https://indiankanoon.org  https://www.casemine.com Page | 5  www.scconline.com STATUES  THE HINDU MARRIAGE ACT,1955 STATEMENT OF JURISDICTION Page | 6 The Petitioner has approached this Hon’ble Court under Sec. 19 of The Hindu Marriage Act, 1955.  Sec. 19 of Hindu Marriage Act, 1955 lays down that: The Court to which petition shall be presented. Every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction (i) the marriage was solemnised, or (ii) the respondent, at the time of the presentation of the petition, resides, or (iii) the parties to the marriage last resided together, or (iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or (iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive. STATEMENT OF FACTS Page | 7 mistreatment at the hands of her in-laws and husband, along with her miscarriage, drove her into depression. -VIII- Anjali's brother paid her a visit at Jagol and witnessed how badly she was treated. Horrified by what he saw, he took decisive action, bringing Anjali back to their family home in Anmol, where she chose to file for divorce against Mukund. -IX- Anjali is a housewife with virtually no other source of income. As a result of these circumstances, she is entitled to maintenance and alimony. ISSUES RAISED Page | 10 ISSUE I Whether the petitioner proves that there was ‘Physical’ and ‘Mental’ Cruelty? ISSUE II Whether the petitioner proves that she is entitled for divorce on the ground of cruelty under Sec. 13(1)(ia) of The Hindu Marriage Act, 1955? ISSUE III Whether the petitioner is entitled for Maintenance under Sec. 24 and Sec. 25 of The Hindu Marriage Act, 1955? Page | 11 ARGUMENTS ADVANCED ISSUE I Whether the petitioner proves that there was ‘Physical’ and ‘Mental’ Cruelty? It is hereby contended that the Petitioner suffered both, physical and mental cruelty by her husband, Mukund and her mother-in-law, Rekha. The concept of cruelty includes physical as well as mental cruelty. Physical cruelty can be described as any form of aggression that results in bodily harm, a threat to life, limb, or health, or the reasonable appearance of such a threat. But the concept of mental cruelty was added as the spouse can also be subject to tortures of other kinds.  What is considered as Mental Cruelty against the Wife by the Husband 1. False accusation of adultery. 2. The demand for dowry. 3. Impotency of Husband. 4. Force to abort the child. 5. The problem of drunkenness of husband. 6. Husband having affairs. 7. The husband lives an immoral life. 8. Aggressive and uncontrollable behaviour of the husband. Page | 12 (i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty Anjali sought a divorce from Mukund due to his family's deceptive behaviour before their marriage. Despite their initial appearances of warmth and affability, they later mistreated her. Anjali's mother-in-law, Rekha, burdened her with excessive work due to unmet dowry expectations. Mukund falsely accused Anjali of an affair, leading to physical abuse with a belt. In her third trimester, Mukund's brutality caused her to lose the baby, exacerbating her depression. These instances collectively prompted Anjali to pursue divorce. Russell v. Russell: Here, Cruelty is defined as "there must be danger to life, limb, or health, bodily or mental, or a reasonable apprehension of it, to constitute legal cruelty" A. Jayachandra V. Aneel Kaur: The expression "cruelty" has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. Page | 15 If related to the current case, we can see that the Petitioner suffered from situations that caused a danger to her health, bodily and mental, due to her husband Mukunds’ uncontrollable behaviour. Vijay Kumar Bhate vs Neela Vijaykumar Bhate: the Supreme Court recognized allegations of illicit relationships as acts of cruelty, deeming them a severe assault on the accused's character, honour, reputation, and health. Meera v. Vijya Shankar: The court here, emphasized that cruelty, as a basis for divorce, must be of a nature that convinces the court that the relationship between the spouses has deteriorated to the point where it's impossible for them to coexist without mental agony, torture, or distress. V. Bhagat v. D. Bhagat: According to Section 13(1)(ia), acts that cause the other person such emotional agony and suffering that it is impossible for them to coexist are considered acts of mental cruelty. Or, to put it another way, the mental cruelty must be of a kind that makes it impossible for the parties to coexist. As can be seen in the above cases, and relating it to the current case, accusing the spouse of an illicit relationship amounts to mental cruelty. In Anjali's situation, Mukund's physical abuse and the mental anguish she endured as a result of turbulent relationships fit the description of cruelty in this section. If Anjali decides to file for divorce, she can make use of the aforementioned provision to demonstrate how she has been treated unjustly and ask for the marriage to be dissolved. Page | 16 ISSUE III Whether the petitioner is entitled for Maintenance under Sec. 24 and Sec. 25 of The Hindu Marriage Act, 1955? It is humbly submitted that the petitioner is eligible for maintenance under sec. 24 and sec. 25 of the HMA, 1955 since she was dependent on her husband for financial assistance since she was not allowed to work due to the extra work and pressure of her mother-in-law. Section 24 in The Hindu Marriage Act, 1955 lays down the following: 24. Maintenance pendente lite and expenses of proceedings: - Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable Chitra Lekha v. Ranjit Rai: The purpose of Section 24 is to give financial support to the indigent spouse so they can maintain themselves while the proceedings are ongoing and have enough money to continue the litigation or defend Page | 17