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TABLE OF CONTENTS
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SR. NO. TOPIC PAGE NO.

1. INDEX OF ABBREVIATIONS 2
2. INDEX OF AUTHORITIES 3
3. STATEMENT OF JURISDICTION 6
4. STATEMENT OF FACTS 7
5. ISSUES RAISED 9
6. SUMMARY OF ARGUMENTS 10
7. ARGUMENTS ADVANCED 11
8. PRAYER 15
9. APPENDIX 16

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________________________________________________________________

INDEX OF ABBREVIATIONS

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ABBREVIATIONS FULL FORM

SR.NO.
1. & AND
2. AIR ALL INDIA REPORTER
CODE OF CIVIL
3. CPC
PROCEDURE
CALCUTTA WEEKLY
4. CWN
NOTES
5. DB DATA BASE
6. Hon’ble HONOURABLE
7. Ker KERELA
NUMBER
8. NO.

9. Ors OTHERS
10. P&H PUNJAB AND HARYANA
RESTITUTION OF
11. RCR
CONJUGAL RIGHTS
12. Rs. RUPEES
13 SC SUPREME COURT
14. SCC SUPREME COURT CASE
SUPREME COURT
15. SCR
REPORTER
16 SR. SERIAL
17. V. VERSUS

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________________________________________________________________

INDEX OF AUTHORITIES
________________________________________________________________

STATUTES REFERRED

SR. NO. NAME

1. CONSTITUTION OF INDIA(1950)
2. CODE OF CIVIL PROCEDURE(1908)

ACTS REFERRED

SR. NO. NAME

1. HINDU MARRIAGE ACT(1955)
2. TRANSFER OF PROPERTY ACT(1882)
3. WEST BENGAL PREMISES TENANCY ACT(1956)

4. PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT(2005)

BOOKS REFERRED

SR.NO. AUTHOR NAME EDITION

SEVENTH EDITION
LAW OF MARRIAGE
1. PARAS DIWAN (UNIVERSAL LAW
AND DIVORCE
PUBISHING 2017)
INDIAN LAWS OF
NINTH EDITION
2. Professor KUSUM MARRIAGE AND
(LEXIS NEXIS)
DIVORCE
MANOHAR AND COMMENTARY ON FIRST EDITION, (ALL
3. CHITALEY THE INDIAN PENAL INDIA REPORTER,
CODE NAGPUR, 2014)

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VOL.3
COMMENTARY ON
9TH EDITION,
4. DURGA DAS BASU THE CONSTITUTION
(LEXISNEXIS)
OF INDIA

INDIAN EIGHTH
M.P JAIN CONSTITUTIONAL EDITION(LEXISNEXIS,
5.
LAW
2018)
V.N. SHUKLA'S
MAHENDRA PAL SINGH CONSTITUTION OF THIRTEENTH
6.
INDIA EDITION(EBC, 2017)

CONSTITUTIONAL THIRD
7. H.M SEERVAI
LAW OF INDIA EDITION(TRIPATHI,
2015)
8. P.M. BAKSHI & THE CONSTITUTION
JASWANT SINGH OF INDIA
9. GOPAL THE CONSITUTION ELEVENTH
SANKARANARAYANAN OF INDIA EDITION(EBC, 2018)
FOURTH EDITION
10. HALSBURY'S LAWS
- VOLUME
OF ENGLAND
19(LEISNEXIS, 2007)

DATABASES REFRED

Sr.No
1. SCC ONLINE
2. MANUPATRA.COM
3. INDIAN KANOON.COM
4. CASEMINE.COM
5. LEXISNEXIS.COM
6. WESTLAW.COM
7. EBCWEBSTORE.COM
8. THEBLUEBOOK.COM
9. ADVOCATEKHOJ.COM

JUDICIAL DECISIONS

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CITATION
SR. NO.

A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22

1.

Aidal Singh v. Karan Singh, A.I.R. 1957 All 414

2.

Baby Vs. Travancore Devaswom Board & Ors., (1998) 8 SCC 310
3.

Balkrishna Hari Phansalkar Vs. Emperor, AIR 1933 Bombay 1

4.

Gujarat State Road Transport Corporation v. Firoze M. Mogal

5.

6. Malathi Ravi v B. V. Ravi (2014) AIR SC 2881

Manmatha Nath Biswas Vs. Emperor, (1932-33) 37 C.W.N. 201

7.
P. Tulsi Das And Ors vs Government Of A.P. And Ors. 2002 Supp(3)
8. SCR 306

Parveen Mehta v. Inderjit Mehta (2002) 5 SCC 706

9.

10. S. Jaya Kumari v S. Krishna Nair (1995) AIR Ker 139 (DB)

Samar Ghosh v Jaya Ghosh (2007) 4 SCC 511

11.

12. Sheldon v Sheldon (1955) 47 Wn.2d 699

Sirajmohmedkhan Janmohamadkhan v. Haizunnisa Yasinkhan and
13. Another, (1981) 4 SCC 250
St. Johns Teachers Training Institute v. Regional Director National
14. Council for Teacher Education

Surya Dev Rai v Ram Chander Rai & Ors. (2003) (4) CTC 176 (SC)
15.

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STATEMENT OF JURISDICTION

The Appellant humbly submits the memorandum to the jurisdiction of the Hon’ble High
Court of Metropolis, Indica under Article 227 of Constitution of Indica read together with
Section 3 of Code of Civil Procedure.

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STATEMENT OF FACTS

APPELANT OF THE CASE-

Ms. Riya- She is a Hindu woman, resident of town Ambridge, state of Metropolis of country
Indica, got married with Mr. Rahul in February, 2011 at Ambridge, Indica under the Hindu
Marriage Act, 1955.Her salary is Rs. 5000/- per month.

RESPONDENTS OF THE CASE-

1. Mr. Ramakant Shukla- He is the landlord of the flat Mr. Rahul and Ms. Riya took on rent
(from 1st March, 2011) at Jamalpur, Metropolis, Indica. The rent of the flat was Rs. 10000/-
per month. The agreement was for 11 months i.e. from 31st March, 2011 to 28th February,
2012.

2. Mr. Rahul- He is a Hindu man, resident of town Ambridge, state of Metropolis of country
Indica, got married with Ms. Riya in February, 2011 at Ambridge, Indica under the Hindu
Marriage Act, 1955.His salary was Rs. 20000/- per month till his job continued. (Last week
of May, 2011).

BACKGROUND

Rahul and Riya both are Hindu and residents of Ambridge, Metropolis, Indica who got
married in February, 2011 under Hindu Marriage Act, 1955 at Amridge. After marriage they
shifted to Jamalpur, Metropolis, where Rahul was working since 2009.In Jamalpur, they took
a 1st floor flat on rent from Mr. Ramakant Shukla who himself stayed on the 2nd floor. The
parties made an agreement regarding the flat for 11 months (from 1st March, 2011 to 28th
February, 2011) with a rent of Rs. 10000/- per month. Rahul lost his job in last week of May,
2011 and did not disclose this fact to Riya. His salary was Rs. 20000/- per month. In the
meantime Riya got a job with a salary of Rs. 5000/- per month. Rahul did not pay the rent for
6 months consecutively and did not disclose the reason to Riya though she asked a no. of
times. In November, 2011, Mr Ramakant Shukla sent a notice to the couple willing to
discontinue the agreement and he wanted the premises to be evacuated within 1 month as

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mentioned in the notice. Confronting Rahul about the notice, Riya came to know about
Rahul's unemployment during heated argument. Riya left the house on 1st December, 2011
and went to her home at Ambridge. On 22nd April, 2015 Riya came back to Jamalpur's
shared flat. In the mean time Ramakant Shukla made several request to Rahul to pay the rent
but he became defaulter again and again and for several months rent was irregular. After
coming back Riya asked Rahul to leave the flat and offered Mr. Ramakant Shukla that from
now on she would stay in the flat and pay the rent. Riya also wanted divorce from Rahul on
the ground of mental trauma as Rahul hid the fact of his unemployment.

DISPUTE

Mr. Ramakant Shukla issued a notice for eviction to the couple in May, 2015.In June 2015,
Mr. Ramakant Shukla filed a suit for eviction against Mr. Rahul and Ms. Riya before the
controller as they did not vacate the premises. Ms. Riya stated that she had a decision to take
about her matrimonial dispute, her job was in Jamalpur and she did not want to go back to her
paternal home and be a burden on her parents and she needed a safe place to stay in the city.
So vacating would not be possible for her. Simultaneously, Rahul filed a suit for Restitution
of Conjugal Rights under Sec 9 of Hindu Marriage Act, 1955 before the District Court stating
that the reason of Riya's withdrawal from the conjugal relationship is unreasonable and he
wanted to continue the marriage. The controller decided in the favour of Mr. Ramakant
Shukla and ordered Ms. Riya to vacate the property. After this decision Mr. Rahul left the
property but Ms. Riya appealed before tribunal against the order of the Controller. Tribunal
upheld the decision of Controller and asked Ms. Riya to vacate the property. Ms. Riya
appealed before High Court of Metropolis that order of the trial court was injustice to her.
During the pendency of this appeal, the issue of matrimonial dispute and pendency of suit of
Restitution of Conjugal Rights before the District Court came up and the High Court of
Metropolis issued a notice under Article 227 of Constitution of Indica to the District Court
and took up the suit for adjudication.

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ISSUES RAISED

a. Whether the present suit is maintainable both in law and in fact?

b. Whether there is landlord and tenant relationship between Ms. Riya and Mr. Ramakant
Shukla under the Transfer of Property Act?
c. Whether concealment of the fact of unemployment of Mr. Rahul is just and reasonable
ground for withdrawal from the conjugal relationship by Ms. Riya?

(i) Whether there was withdrawal from the society of other without reasonable excuse?
(ii) Whether the concealment of the fact of unemployment a just and reasonable ground for
withdrawal?

d. Whether the High Court of Metropolis, Indica has the power to take up any case from a
Subordinate Court under Article 227 of the Constitution of Indica.

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SUMMARY OF ARGUMENTS

The present suit is maintainable in both law and fact under Article 227 of the Constitution of
Indica which gives the High Court of Metropolis, Indica the power of supervisory
jurisdiction. There exists a landlord and tenant relationship between Mr. Ramakant Shukla
and Ms. Riya as per the agreement in which both Mr. Rahul and Ms. Riya are tenants. Ms.
Riya had withdrawn from the conjugal relationship due to notice of eviction sent by Mr.
Ramakant Shukla. The concealment of Mr. Rahul’s unemployment status caused mental
trauma to Ms. Riya and hence the suit for Restitution of Conjugal Rights should not be
allowed. The High Court of Metropolis has the power to take up any case from a subordinate
court under Article 227 of the Constitution of Indica and under Section 24 of the Code of
Civil Procedure.

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ARGUMENTS ADVANCED

a) The present suit is maintainable both in law and in fact.

The present suit is maintainable under Article 227 of the Constitution of Indica.
Ms. Riya has challenged the decision of the tribunal under Article 227 which gives the High
Court of Metropolis the power of superintendence over all the subordinate courts and
tribunals under its jurisdiction.
In Gujarat State Road Transport Corporation v. Firoze M. Mogal1, Supreme Court stated that
an order of the tribunal is capable of being tested in exercise of the power of judicial review
under Articles 226 and 227.
The High Court of Metropolis has clubbed this appeal with Mr. Rahul's suit for Restitution of
Conjugal Rights which was pending before the District Court. Section 24(1)(b)(i) of the Code
of Civil Procedure gives the High Court the power to withdraw any suit, appeal or proceeding
pending in any court subordinate to it and try or dispose of the same2.
Hence the suit is maintainable both in law and in fact.
b) There is a landlord and tenant relationship between Ms. Riya and Mr. Ramakant
Shukla.

1
State Road Transport Corporation v. Firoze M. Mogal, 2014 GLH 1
2
The Code of Civil Procedure, 1908.

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Under Section 2(d) of West Bengal Tenancy Act3, ''landlord" includes any person who, for

the time being, is receiving, or is entitled to receive, the rent for any premises, whether on his

own account or on account of, or on behalf of, or for the benefit of, any other person or as a

trustee, guardian or receiver for any other person or who would so receive the rent or be

entitled to receive the rent, if the premises were let to a tenant and under Section 2(h) of the

same "tenant" means any person by whom or on whose account or behalf the rent of any

premises is or, but for a special contract, would be payable, and includes any person

continuing in possession after termination of his tenancy. Also the agreement was made in

both Rahul and Riya's Nname so they both are parties to the agreement. So there exists a

clear landlord relationship between Ms. Riya and Mr. Ramakant Shukla as she was the legal

spouse of Mr Rahul.

Also every woman has a right to live in the shared household according to Section 17 of

Protection of Women from Domestic Violence Act4 a shared household as defined by the Act

includes a household which is owned and rented jointly by the aggrieved woman and the

respondent (related person). Here the couple together took the flat on rent so she has a right to

stay in the flat till the conjugal relationship is valid.

Also under Section 108(b) of Transfer of Property Act 5 the lessor is bound on the lessee’s

request to put him in possession of the property and under Section 108(c) of the same the

lessor shall be deemed to contract with the lessee that, if the latter pays the rent reserved by

the lease and performs the contracts binding on the lessee, he may hold the property during

the time limited by the lease without interruption. The benefit of such contract shall be

annexed to and go with the lessee’s interest as such, and may be enforced by every person in

whom that interest is for the whole or any part thereof from time to time vested.

3
West Bengal Tenancy Act, (1956).
4
Protection of Women from Domestic Violence Act, (2005).
5
Transfer of Property Act, (1882).

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c. The concealment of the fact of unemployment of Mr. Rahul is a just and reasonable
ground for the withdrawal from the conjugal relationship by Ms. Riya.

(i) There was withdrawal from the society of other with a reasonable excuse

In November, 2011 Mr. Ramakant Shukla had sent a notice to the couple expressing his
desire not to continue the agreement with the couple and that he wanted the couple to leave
the premises within 1 month. After receiving the notice Ms. Riya left the premises and went
to her home at Ambridge. She acted according to the rights and liabilities of the lessee given
under Section 108(q) of Transfer of Property Act6. She had a reasonable excuse for the
withdrawal from the society of Mr. Rahul.

(ii) Whether the concealment of the fact of unemployment a just and reasonable ground for
withdrawal?

On disclosure of Rahul’s unemployed status a heated argument took place between the
couple following which Riya left the house and went to her home at Ambridge. She informed
Rahul that the fact he hid his unemployment status caused her mental trauma. Mental cruelty
is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse
caused by the conduct of other for a long time may lead to mental cruelty7. It is settled by a
catena of decisions that mental cruelty can cause even more serious injury than the physical
harm8. Restitution of conjugal rights would be refused if the husband is guilty of mental
cruelty. It is not necessary that there should be a physical assault, violence or torture 9. As the
concealment of the fact of unemployment led to mental trauma for Riya, it is a just and
reasonable ground for withdrawal from conjugal relationship.

d. The High Court of Metropolis, Indica has the power to take up any case from a
subordinate court under Article 227 of the Constitution of Indica.

Article 227 of the Constitution confers on every High Court the power of superintendence
over all courts and tribunals throughout the territories in relation to which it exercises
jurisdiction excepting any court or tribunal constituted by or under any law relating to the
armed forces. This power of superintendence so conferred on the High Court is
administrative as well as judicial, and is capable of being invoked at the instance of any

6
Transfer of Property Act, 1882.
7
Samar Ghosh v Jaya Ghosh, (2007) 4 SCC 511.
8
Malathi Ravi v B.V.Ravi, (2014) AIR SC 2881
9
S. Jaya Kumari v S. Krishna Nair, (1995) AIR Ker 139 (DB).

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person aggrieved or may even be exercised suo motu10. Section 24(1)(b)(i) of the Code of
Civil Procedure gives the High Court the power to withdraw any suit, appeal or proceeding
pending in any court subordinate to it and try or dispose of the same 11. Accordingly, the High
Court of Metropolis, Indica has the power to take up the suit of restitution of conjugal rights
filed by Mr. Rahul against Mrs. Riya from the District Court under Article 227 of the
Constitution of Indica. Also under Article 227 the decisions of tribunals can be challenged,12
and Ms. Riya filed the appeal under the same.

10
Surya Dev Rai v Ram Chander Rai & Ors, (2003) (4) CTC 176 (SC) para 21
11
The Code of Civil Procedure, 1908.
12
Hari Vishnu Kamath V. Syed Ahmad Ishaque & Ors (3) 1955 SCR (1)1104

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PRAYER

Wherefore in the lights of the facts stated, issues raised, authorities cited, and arguments

advanced, it is most humbly prayed by the appellant before the honourable High Court of

Metropolis that it may be graciously pleased to adjudge and declare that:

1. The order of the trial court regarding the eviction of Ms. Riya from the suit property

amounts to grave injustice.

2. Ms. Riya can continue staying in the suit property as a tenant.

3. The suit brought by Mr. Rahul for Restitution of Conjugal Rights should be dismissed.

And

Pass any such order that it deems fit and proper in the interest of equity, justice and good

conscience.

And for this act of kindness, the Appellant shall duty bound forever pray.

COUNSEL ON BEHALF OF THE APPELLANT

ALL OF WHICH IS RESPECTFULLY SUBMITTED

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APPENDIX

According to Section 105 of Transfer of Property Act (1882),

Lease —A lease of immoveable property is a transfer of a right to enjoy such property, made
for a certain time, express or implied, or in perpetuity, in consideration of a price paid or
promised, or of money, a share of crops, service or any other thing of value, to be rendered
periodically or on specified occasions to the transferor by the transferee, who accepts the
transfer on such terms. Lessor, lessee, premium and rent defined.—The transferor is called
the lessor, the transferee is called the lessee, the price is called the premium, and the money,
share, service or other thing to be so rendered is called the rent.

According to Section 2(c) of West Bengal Premises Tenancy Act (1956),

"landlord" includes any person who, for the time being, is receiving, or is entitled to receive,
the rent for any premises, whether on his own account or on account of, or on behalf of, or for
the benefit of, any other person or as a trustee, guardian or receiver for any other person or
who would so receive the rent or be entitled to receive the rent, if the premises were let to a
tenant;

Ac According to Section 2(g) of West Bengal Premises Tenancy Act(1956),

"tenant" means any person by whom or on whose account or behalf the rent of any premises
is or, but for a special contract, would be payable, and includes any person continuing in
possession after termination of his tenancy.

MEMORIAL ON BEHALF OF APPELLANT