FL-15

1stSURANA & SURANA AND ARMY INSTITUTE OF LAW

NATIONAL FAMILY LAW MOOT COURT COMPETITION

2020

Civil Suit No. ___/2019

Simran…………………………...……………………………………Petitioner

v.

Raman…………………………...………………………………… Respondent

Most respectfully submitted before

The Honorable District Court

MEMORIAL ON THE BEHALF OF THE RESPONDENT

DRAWN AND FILED BY THE COUNSELS FOR RESPONDENT

[Type text]
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TABLE OF CONTENTS

1. LIST OF ABBREVIATIONS………...………………………………………2

2. INDEX OF AUTHORITIES………………………………………………….4

3. STATEMENT OF JURISDICTION…………………………………………7

4. STATEMENT OF FACTS……………………………………………………8

5. ISSUES RAISED………………………………………………………………9

6. SUMMARY OF ARGUMENTS……………………………………………...10

7. ARGUMENTS ADVANCED…………………………………………………11

8. PRAYER……………………………………………………………...………...25

MEMORIAL ON BEHALF OF RESPONDENT

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LIST OF ABBREVIATIONS

Abbreviations Full Form

& And

AIR All India Reporter

All Allahabad

All E.R. All England Reporter

Anr. Another

AP Andhra Pradesh

art. Article

Bom Bombay

Cal Calcutta

Del Delhi

DRJ Delhi Reported Journal

Ed. Edition

HCCH Hague Conference de la Haye

HMA Hindu Marriage Act

HMGA Hindu Minority and Guardianship Act

Lah Lahore

Mad Madras

Ors. Others

Para. Paragraph

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Pat Patna

Punj Punjab

RCR Restitution of Conjugal Rights

s. Section

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reports

UK United Kingdom

US United States of America

v. Versus

W.L.R. Weekly Law Reports

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INDEX OF AUTHORITIES

CASES CITED

S. No. CASES CITATION

1 A. Jayachandra v. Aneel Kaur (2005) 2 SCC 22.
2 Chaitali Dey v. Badal Kumar Dey AIR 2005 Jhar 83.
3 Chandrakala Menon v. Vipin Menon (1993) 2 SCC 6.
4 Dastane v. Dastane AIR 1975 SC 1534.
5 Dhanwanti Joshi v. Madhav Unde (1998) 1 SCC 112.
6 Dharambir v. Bimlesh Kumari (1985) 8 DRJ 26.
7 Dr. V. Ravichandran v. Union of India (2009) 9 SCC 111.
8 Gollins v. Gollins (1962) 3 All ER 897.
9 H. (Infants), In re (1966) 1WLR 381 (Ch &

CA).
10 Jagdish Lal v. Shyama Madan AIR 1966 All 150.
11 Jogindra Kaur v. Shivcharan Singh AIR 1965 J&K 95.
12 Kallan v. Kallan AIR 1933 Lah 728.
13 Kameshwaar Rao v. Jabilli AIR 2002 SC 576.
14 Keshavrao v. Nisha AIR 1984 Bom 413.
15 King v. King (1953) AC 124.
16 Mackenzie v. Mackenzie (1895) AC 384.
17 Mausami Moitra Ganguli v. Jayant Ganguli (2008) 7 SCC 673.
18 McKee v. McKee (1950) SCR 700.
19 N. Sreepadachar v. Vasantha Bai AIR 1970 Mys 232.
20 Naveen Kohli v. Neelu Kohli AIR 2006 SC 1675.
21 Nirmala Jagesha v. Manohar Jagesha AIR 1991 Bom 259.
22 P.L Sayal v. Sarla Rani AIR 1961 Punj 125.
23 Patel Dharamshi Premji v. Bai Sakar Kanji AIR 1968 Guj 150.
24 Pradeep Kumar Kapoor v. Shailja Kapoor AIR 1989 Del 10.
25 Rajan Ravankar v. Shobha AIR 1995 Bom 246.
26 Rani Bai Verma v. Chandrashekhar Verma AIR 2011 Chh 93.
27 Ruchi Majoo v. Sanjeev Majoo (2011) 6 SCC 479.
28 Russell v. Russell (1897) AC 395.
29 Shaleen Kabra v. Shiwani Kabra (2012) 5 SCC 355.
30 Shobha Rani v. Madhukar Reddy (1998) 1 SCC 105.
31 Shyamal Samaddar v. Sampa Samaddar AIR 2012 Cal 220.
32 Suman Singh v. Sanjay Singh (2017) 4 SCC 85.
33 Surya Vadanan v. State of Tamil Nadu and Ors (2015) 5 SCC 450.
34 Syal v. Syal AIR 1968 P&H 489.
35 Dr. V. Ravi Chandran v. Union of India (2009) 9 SCC 111.
36 Vimla Mehra v. K.S Mehra (2009) 158 DLT 136.
37 Vishwanath Agarwal v. Sarla Agarwal AIR 2012 SC 2586.

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STATUTES REFERRED

1. The Hindu Marriage Act, 1955.

2. The Hindu Adoption and Maintenance Act, 1956.

3. The Family Courts Act, 1984.

4. The Code of Civil Procedure, 1908.

5. The Hindu Minority and Guardianship Act, 1956.

ONLINE LEGAL DATABASES

1. Manupatra.

2. SCC Online.

3. West Law

BOOKS REFERRED

1. C.K. Takwani, Code of Civil Procedure (Eastern Book Company, 8th ed.).

2. Dr. Samiya Tabasum, Hindu Law (2015 ed.).

3. Werner F. Menski, Hindu Law (2003 ed.).

4. Sir Dinshaw Fardunji Mulla, Hindu Law (Lexis Nexis, 22nd ed.).

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5. Dr. Paras Diwan, Hindu Law (Allahabad Law Agency, 2019 ed.).

6. Dr. Paras Diwan, Family Law (Allahabad Law Agency, 2019 ed.).

1.

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STATEMENT OF JURISDICTION

The Honorable Court is vested with the jurisdiction to hear the present case under s.7(1) of

The Family Courts Act, 1984.

Section 7. “Jurisdiction -

(1) Subject to the other provisions of this Act, a Family Court shall- -(1) Subject to the

other provisions of this Act, a Family Court shall-"

(a) have and exercise all the jurisdiction exercisable by any district court or any

subordinate civil court under any law for the time being in force in respect of suits and

proceedings of the nature referred to in the explanation; and

(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a

district court or, as the case may be, such subordinate civil court for the area to which

the jurisdiction of the Family Court extends

Explanation. -The suits and proceedings referred to in this sub-s are suits and

proceedings of the following nature, namely: -

(a) a suit or proceeding between the parties to a marriage for a decree of nullity of

marriage (declaring the marriage to be null and void or, as the case may be, annulling

the marriage) or RCR or judicial separation or dissolution of marriage;”

Under the aforesaid jurisdiction, the Counsels for the Respondent humbly approaches the

Honorable Court to respond to the case above mentioned.

MEMORIAL ON BEHALF OF RESPONDENT

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STATEMENT OF FACTS

Background: Raman and Simran, a Hindu married couple move to the USA due to

Raman’s job. They have their first child in 2010 who became a US citizen by birth.

Economic Depression: Raman’s company faces losses due to which he faces stress and has

increased workload. He expresses his frustrations on Simran who deals with him calmly. He

starts consuming alcohol leading to shouting episodes between the two. There is an upturn

in Raman’s fortunes when he gets US citizenship and gets a promotion at work.

Birth of Second Child: In 2017, the couple have another daughter. Raman’s parents

criticized the couple for not having boy which leads to friction between the two.

Death of father-in-law: Raman’s father-in-law expires in December 2017 but he is unable

to be present for the entire ceremony and is only able to show up for a couple of days.

Meeting of Simran with Suraj: Simran is visited by her former schoolmates. She

connected with one of them and starts depending on him emotionally. After she came back

to the US, she still remained in touch with Suraj and started distancing herself from Raman.

She starts ignoring her responsibilities towards their daughters. One day, Raman catches

them having an intimate conversation and becomes abusive and violent with her in the heat

of the moment.

Simran flees to India: Simran goes back to India behind Raman’s back and takes their

younger daughter with her. She changes her number to prevent Raman and his family from

contacting her and their younger daughter.

Matter in Court: Simran files for divorce, maintenance and custody of their daughters.

Raman files a petition for RCR in reply.

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STATEMENT OF ISSUES

I. WHETHER THE PETITIONER IS ENTITLED FOR DIVORCE ON

THE GROUND OF CRUELTY.

II. WHETHER THE PETITIONER IS ENTITLED FOR

MAINTENANCE AND CUSTODY OF HER DAUGHTERS.

III. WHETHER THE RESPONDENT IS ENTITLED FOR A

DECREE OF RCR.

IV. WHETHER THE ORDER OF THE US COURT PASSED IN

FAVOUR OF RESPONDENT REGARDING THE CUSTODY OF HIS
DAUGHTERS IS ENFORCEABLE IN INDIA.

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SUMMARY OF ARGUMENTS

1. That the Petitioner is not entitled for divorce on the ground of Cruelty.

The Petitioner is not entitled for divorce on the ground of cruelty as the respondent’s conduct

did not amount to cruelty and the said conduct is not grave and weighty enough to provide

the petitioner a reasonable excuse to be entitled to a decree of divorce on the ground of

divorce.

2. That the Petitioner is not entitled for Maintenance and Custody of her

daughters.

The Petitioner is not entitled for Maintenance as the Petitioner has a job which pays her well

enough to sustain herself and the Respondent has filed a petition for RCR which shows his

intention to stay together and raise their children together. The Petitioner is not entitled to the

custody of their daughters as they are citizens of the US and the Respondent is in a better

financial position to take care of them and give them a good lifestyle.

3. That the Respondent is entitled for a decree of RCR.

The Respondent is entitled for a decree of RCR as the conduct is not grave and weighty

enough to provide the petitioner with a reasonable excuse to be entitled to a decree of divorce

on the ground of divorce.

4. That the order of the US court passed in favour of Respondent regarding the

custody of his daughter is enforceable in India.

The order of the US Court passed in favour of Respondent regarding the custody of his

daughter is enforceable in India as the said order has to be given its due weight and

consideration as the interests of the child lay in the native country of the children.

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ARGUMENTS ADVANCED

1) THAT THE PETITIONER IS NOT ENTITLED FOR DIVORCE ON THE

GROUND OF CRUELTY.

It is humbly submitted before the Hon’ble Court that the Petitioner is not entitled for divorce

on the ground of cruelty under s. 13(1)(ia) of the HMA, 1955.

a) Applicability:-

According to s. 2(1)(a) of the HMA, 1955, the Act is applicable to any person who is a Hindu

by religion. In the present case, both the parties are Hindus by religion and are married under

Hindu rites.

b) Divorce:-

In the case of A. Jayachandra v. Aneel Kaur,1 the Hon’ble Supreme Court observed that:

“The expression ‘cruelty’ has not been defined in the Act. Cruelty can be physical and

mental. Cruelty which is a ground for dissolution 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.”

In a catena of cases, certain parameters have been laid down by the court for deciding the

granting of divorce to the petitioner.2

1
A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22.

2
Dastane v. Dastane, AIR 1975 SC 1534; Nirmala Jagesha v. Manohar Jagesha, AIR 1991 Bom 259; Russell v.

Russell, (1897) AC 395; Kallan v. Kallan, AIR 1933 Lah 728.

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In the case of Keshavrao v. Nisha,3 the Court held that cruelty under the said section is a

conduct of such type that the petitioner cannot be reasonably expected to live with the

respondent. In the present case, the conduct of the respondent is not of such nature that the

petitioner cannot live with the respondent.

The Supreme Court in the case of Suman Singh v. Sanjay Singh,4 held that:

“In the first place, no decree for divorce on one isolated incident can be passed.

Secondly, there could be myriad reasons for causing such isolated incident. … Both

should, therefore, give quite burial to their past deeds/acts and bitter experiences and

start living together and see that their daughters are well settled in their respective

lives… Also, such alleged acts of cruelty should have occurred close to the date of

filing the divorce suit, the court said in a recent order.”

In Dastane v. Dastane,5 the Supreme Court held that:

“...inquiry in any case covered by the provisions of the Act had to be, whether the conduct

charged as cruelty is of such a character as to cause in the mind of the petitioner a

reasonable apprehension that it will be harmful or injurious for the petitioner to live with the

respondent. Spouses are undoubtedly supposed and expected to conduct their joint venture as

best as they might, but it is no function of a court inquiring into a charge of cruelty to

philosophise on the modalities of married life. Someone may want to keep late hours to finish

the day’s work and someone may want to get up early for a morning round of golf. The Court

cannot apply to the habits or hobbies of these the test whether a reasonable man situated

3
Keshavrao v. Nisha, AIR 1984 Bom 413.

4
Suman Singh v. Sanjay Singh, (2017) 4 SCC 85.

5
Dastane v. Dastane, AIR 1975 SC 1534.

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similarly will behave in a similar fashion. For an act to amount to cruelty, the acts must be of

a more serious nature than mere wear and tear of married life.”6

There can never be any strait-jacket formula or fixed parameters for determining mental

cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would

be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors

in consideration.7

In the case of Naveen Kohli v. Neelu Kohli,8 it was held by the SC that cruelty in fact must

obviously depend on the particular circumstances of a case. The passing of a decree on this

ground requires the matrimonial offence to be established so to conclude that cruelty has

resulted into a situation where the spouses can no longer live together.

The conduct alleged must be adjudged up to a point by reference to the petitioner’s capacity

or incapacity for endurance, insofar as that is or ought to be known to the respondent. 9 It is

also necessary to weigh all the incidents and quarrels between the parties, keeping in view the

impact of the personality and the conduct of one spouse on the mind of the other.10

Isolated acts of assaults committed on the spur of the moment and on some real or fancied

provocation does not amount to cruel treatment. 11 This can be only determined by keeping in

view the physical and mental condition of the parties, their age, environment, standard of

culture and status in life.12

6
Chaitali Dey v. Badal Kumar Dey, AIR 2005 Jhar 83; Sir Dinshaw Fardunji Mulla, Hindu Law, 921, 922 (22 nd

Ed., 2016).
7
Vimla Mehra v. K.S Mehra, (2009) 158 DLT 136.

8
Naveen Kohli v. Neelu Kohli, AIR 2006 SC 1675.

9
Mackenzie v. Mackenzie, (1895) AC 384, p.405; Gollins v. Gollins, (1962) 3 All ER 897.

10
King v. King, (1953) AC 124, p. 130; N. Sreepadachar v. Vasantha Bai, AIR 1970 Mys 232; P.L Sayal v.

Sarla Rani, AIR 1961 Punj 125.

11
Sir Dinshaw Fardunji Mulla, Hindu Law, 916 (22nd Ed., 2016).

12
Kameshwaar Rao v. Jabilli, AIR 2002 SC 576; Vishwanath Agarwal v. Sarla Agarwal, AIR 2012 SC 2586.

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In the case of Rani Bai Verma v. Chandrashekhar Verma,13 the Court following the principle

laid down in the case of Shobha Rani v. Madhukar Reddy14 said that to constitute cruelty the

conduct complained of should be ‘grave and weighty’ so as to come to the conclusion that the

petitioner spouse cannot be reasonably expected to live with the other spouse. It must be

something more serious than ‘ordinary wear and tear of married life’.

If the conduct were such that it would amount to cruelty only if aggravated by intention to

hurt, the spouse who could not form such an intention would not be held to have treated the

other spouse with cruelty.15 In the present case, there was no such intention on part of the

respondent as mentioned above.

In the present case, the workload on the respondent led to fights and stress between the

couple. The respondent took to expressing his frustrations vocally at his partner and once it

escalated to a physical assault on the petitioner.16 The increasing uncertainty in the job market

had an adverse effect over all families and this was no different. 17 The respondent needed to

focus on doing well and holding down his existing job in order to maintain their financial

status and give his wife and children a good lifestyle and standard of living. The accumulated

stress from his workplace led to him starting to consume alcohol which in turn led to loud

shouting episodes between the petitioner and the respondent.18

The petitioner continued living with the respondent despite the overburdened work life of the

respondent.19 The petitioner was well aware that the respondent was the sole breadwinner in
13
Rani Bai Verma v. Chandrashekhar Verma, AIR 2011 Chh 93.

14
Shobha Rani v. Madhukar Reddy, (1998) 1 SCC 105.

15
Sir Dinshaw Fardunji Mulla, Hindu Law, 933 (22nd Ed., 2016).

16
Para 13, Moot Proposition.

17
Para 12, Moot Proposition.

18
Supra note 16.

19
Para 14, Moot Proposition.

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the family20 and the former was in no position to blame the respondent for not being with her

all the time. Later, when the respondent overheard the petitioner having an intimate

conversation with a stranger21, he cannot be blamed for acting on the heat of the moment and

becoming abusive and violent with the petitioner at that point of time.

These acts of the respondent do not amount to a conduct where the petitioner cannot be

reasonably expected to live with the respondent as none of these acts would amount to such

conduct that would cause danger to life, limb or health, bodily or mental, or as to give rise to

a reasonable apprehension of such a danger.

Therefore, in the present case, the respondent cannot be said to have treated the petitioner

with such conduct as to amount to cruelty for the purpose of the HMA, 1955 and the

petitioner is not entitled to divorce on the ground of cruelty.

Hence, on the basis of the above raised arguments and judgements cited the petitioner is not

entitled for divorce on the ground of cruelty under S 13 of the HMA, 1955.

2) THAT THE PETITIONER IS NOT ENTITLED FOR MAINTENANCE AND

CUSTODY OF HER DAUGHTERS.

It is humbly submitted that the Petitioner is not entitled for Maintenance from the Respondent

and the Custody of their daughters.

a) Maintenance:-

It is humbly submitted that the petitioner is not entitled to maintenance from the respondent

under s. 25 of the HMA, 1955.

20
Para 10, Moot Proposition.

21
Para 25, Moot Proposition.

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The present petition is filed under s. 25(1) of the HMA, 1955.

According to s. 18(2) of Hindu Adoptions and Maintenance Act, 1956:

“ Maintenance of wife. —

(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her

claim to maintenance. —

(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind

that it will be harmful or injurious to live with her husband;”22

In the present case, the petitioner is engaged a job which is enough to sustain the survival of

the petitioner and their daughter.23 Also, the petitioner is engaged in leisure and social

engagements.24

In Dharambir v. Bimlesh Kumari,25 the Court denied relief to the appellant and the sole

reason was that the appellant failed to prove that the respondent had a job and sufficient

income to sustain herself after a decree of divorce was granted. But, in the present case, the

petitioner has sufficient income to sustain herself along with her daughter and also, she is

engaged in leisure and social engagements Therefore, the petitioner, in the present case, has

sufficient means to sustain herself and thus, she is not entitled to maintenance from the

respondent under s. 25 of the HMA, 1955.

In Pradeep Kumar Kapoor v. Shailja Kapoor,26 it was held that while fixing permanent

alimony and maintenance under s. 25 of the Act, the court is expected to make detailed

inquiry and has to take into account not only the income but other properties of the parties,

22
s. 18, Hindu Adoptions and Maintenance Act, 1956, No.78 of 1956, Acts of Parliament (India).

23
Para 26, Moot Proposition.

24
Para 30, Moot Proposition.

25
Dharambir v. Bimlesh Kumari, (1985) 8 DRJ 26.

26
Pradeep Kumar Kapoor v. Shailja Kapoor, (1988) 15 DRJ 375: AIR 1989 Del 10.

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their conduct and other circumstances of the case that the court might consider relevant. In

the present case, the petitioner has appropriate qualifications and a job which pays her

sufficiently in order to maintain herself.

Moreover, in the present case, the respondent has filed a petition for RCR under s. 9 of the

HMA, 1955 and wants to continue their marriage and raise their children together.

Hence, the petitioner is not entitled to maintenance from the respondent under s. 25 of the

HMA, 1955.

b) Custody:-

It is humbly submitted that the petitioner is not entitled to custody of their children under the

HMGA, 1956.

i) Applicability:-

According to s. 3(1)(a) of the HMGA, 1956, the Act is applicable to any person who is a

Hindu by religion. In the present case, both the parties are Hindus by religion and are married

under Hindu rites.

According to s. 6(a) of the HMGA, 1956, the mother is a natural guardian of a Hindu minor.

According to s.13 of the HMGA, 1956, the welfare of the child is of paramount

consideration.

In a marital tie, separation of the spouses could have a disastrous effect on children and that is

why in a matrimonial dispute of custody of children, the paramount consideration is that of

the welfare of the child.27 In another case the Court has held that welfare of the child may

have a primacy even over statutory provisions.28

In the case of Dinshaw v. Dinshaw,29 it was held by the SC that:

27
Shaleen Kabra v. Shiwani Kabra, (2012) 5 SCC 355.

28
Mausami Moitra Ganguli v. Jayant Ganguli, (2008) 7 SCC 673.

29
Mrs Elizabeth Dinshaw v. Arvand M. Dinshaw, 1987 SCR (1) 175.

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“the child has not taken root in this country and he is still accustomed and acclimatized

to the conditions and environments obtaining in the place of his origin in the United

States of America.

The court may conclude that the child should be returned to his or her native country

or the jurisdiction from which he or she has been removed.”30

In the case of Dr. V. Ravi Chandran v. Union of India,31 it was held by the SC that:

“It would be better for the child that those merits should be investigated in a court in

his native country. …Anyone who has had experience of the exercise of this delicate

jurisdiction knows what complications can result from a child developing roots in new

soil, and what conflicts this can occasion in the child’s own life. Such roots can grow

rapidly. An order that the child should be returned forthwith to the country from which

he has been removed in the expectation that any dispute about his custody will be

satisfactorily resolved in the courts of that country may well be regarded as being in

the best interests of the child…if the child gets divorced from the social customs and

contacts to which he has been accustomed, or if its education in his native land is

interrupted and the child is being subjected to a foreign system of education, for these

are all acts which could psychologically disturb the child”.

In a catena of cases, a similar principle has been upheld by the courts.32

30
McKee v. McKee, (1950) SCR 700.

31
Dr. V. Ravi Chandran v. Union of India, (2009) 9 SCC 111.

32
Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479; Chandrakala Menon v. Vipin Menon, (1993) 2 SCC 6;

Surya Vadanan v. State of Tamil Nadu and Ors, (2015) 5 SCC 450; Dhanwanti Joshi v. Madhav Unde, (1998) 1

SCC 112.

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Whenever a question arises before Court pertaining to the custody of a minor child, the

matter is to be decided not on considerations of the legal rights of the parties but on the sole

and predominant criterion of what would best serve the interest and welfare of the minor.33

Hence, the petitioner is not entitled to custody of their children under the HMGA, 1956.

33
H. (Infants) In re, (1966) 1 WLR 381 (Ch & CA).

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3) THAT THE RESPONDENT IS ENTITLED FOR A DECREE OF RCR.

It is humbly submitted before the Hon’ble Court that the Respondent is entitled for a decree

of RCR under s. 9 of the HMA, 1955.

The petition is maintainable under s. 7 of the Family Courts Act, 1984. According to s. 7(1)

of The Family Courts Act, 1984: -

“Jurisdiction:-

(1) Subject to the other provisions of this Act, a Family Court shall-

…Explanation.-The suits and proceedings referred to in this sub-s are suits and

proceedings of the following nature, namely:-

(a) a suit or proceeding between the parties to a marriage for a decree of nullity of

marriage (declaring the marriage to be null and void or, as the case may be, annulling

the marriage) or RCR or judicial separation or dissolution of marriage;…”34

According to the s. 9 of the HMA, 1955, when either the husband or the wife has, without

reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply,

by way of petition to the district court for the decree of RCR.35

The court has held in various cases that the following situations will amount to a reasonable

excuse to act as a defence in this area:

1. A ground for relief in any matrimonial cause, or

2. A matrimonial misconduct not amounting to a ground of a matrimonial cause, if

sufficiently weighty and grave, or

34
s.7, Family Courts Act, 1984, No. 66 of 1984, Acts of Parliament, 1992 (India).

35
s.9, Hindu Marriage Act,1955.

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3. Such an act, omission or conduct which makes it impossible for the petitioner to live

with the respondent.36

In the present case, the petitioner has withdrawn from the society of the respondent without

any reasonable ground as the petitioner withdrew from the society of the respondent with a

ground which is neither a ground for relief in any matrimonial cause, nor does it contains any

matrimonial misconduct not amounting to a ground of a matrimonial cause, if sufficiently

weighty and grave, nor does it constitute such an act, omission or conduct which makes it

impossible for the petitioner to live with the respondent.

In the case of Jagdish Lal v. Shyama Madan,37 the Court held that what would be reasonable

excuse cannot be reduced to formulae and would vary with time and circumstances and will

have to be determined by the court in each individual case in the light of features peculiar to

it. In the present case, the petitioner had no reasonable excuse to withdraw from the society of

the respondent, as stated above.

In the case of Patel Dharamshi Premji v. Bai Sakar Kanji,38 the wife failed to establish

cruelty and a decree for RCR was passed by the High Court.

The person who files a petition for RCR must have a bona fide desire to resume matrimonial

cohabitation and to render the rights and duties of matrimonial life. The person who has filed

a petition for RCR is serious in this sense can seek the relief. 39 In the present case, the

Respondent wants to stay married with the Petitioner and raise their children together.

36
Paluck Sharma, Restitution of Conjugal Right: A Comparative Study Among Indian Personal Laws, Indian

National Bar Association, available at: https://www.indianbarassociation.org/restitution-of-conjugal-right-a-

comparative-study-among-indian-personal-laws/, visited on 25/12/19, 9:00 PM.

37
Jagdish Lal v. Shyama Madan, AIR 1966 All 150.

38
Patel Dharamshi Premji v. Bai Sakar Kanji, AIR 1968 Guj 150.

39
Syal v. Syal, AIR 1968 P&H 489; Jogindra Kaur v. Shivcharan Singh, AIR 1965 J&K 95; Shyamal Samaddar

v. Sampa Samaddar, AIR 2012 Cal 220.

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Hence, the respondent is entitled for a decree of RCR under s. 9 of the HMA, 1955.

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4) THAT THE ORDER OF THE US COURT PASSED IN FAVOUR OF

RESPONDENT REGARDING THE CUSTODY OF HIS DAUGHTER IS

ENFORCEABLE IN INDIA.

It is humbly submitted before the Hon’ble Court that order of the US court passed in favour

of respondent regarding the custody of his daughter is enforceable in India.

The petitioner without the consent of the respondent has removed the younger daughter from

the society of her father and her elder sister, the latter whose health and academics have

started to suffer as she misses her sister. The petitioner has taken a pernicious step and that

has been the cause of hurt to the father and their elder daughter. For the welfare of the

children it is contested that the younger daughter must return to her natural environment, i.e.

New York. The leading case on this is Mckee v.Mckee,40 where the Supreme Court of Canada

held that the judgment passed by a US Court regarding the custody of child removed from its

native country has to be given due weight in the circumstances of the cases as the welfare and

happiness of the child was of paramount consideration.

In the case of Dr. V. Ravi Chandran v.Union of India, it was held that:

“Merely because the child has been brought to India, the custody issue concerning the

minor child does not deserve to be gone into by the courts in India and it would be in

accord with the principle of comity as well as on the facts, to return the child back to

USA from where he has been removed, and enable the parties to establish their case

before the courts in the native state of child i.e. USA, for modification of existing

custody orders by the court”.41

40
Mckee v. Mckee, (1951) 1 All ER 942 (PC).

41
Dr. V. Ravi Chandran v. Union of India, (2010) 1 SCC 174.

MEMORIAL ON BEHALF OF RESPONDENT

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In H. (Infants), In re42 the Court of Appeal, affirmed the view of the trial judge who had held

that the justice of the case required the children to be returned without delay to the

jurisdiction of New York Court. The judges held that the proper order was to send the two

boys back to the State of New York, where they belong, especially as they had been kept in

flagrant contempt of the New York Court’s order.

In V. Ravi Chandran v. Union of India,43 it was held by the SC that:

“29. … In a case where the court decides to exercise its jurisdiction summarily to

return the child to his own country, keeping in view the jurisdiction of the court in the

native country which has the closest concern and the most intimate contact with the

issues arising in the case, the court may leave the aspects relating to the welfare of the

child to be investigated by the court in his own native country as that would be in the

best interests of the child.”

In Dinshaw v. Dinshaw,44 the mother was directed to send the child back to the USA not just

due to the principle of comity of courts but also because it was in the interest of the child to

be sent back to the native state.

Thus, considering the above arguments, the children must be returned to the US and the order

passed by the US Court must be respected. The interests of the children are of paramount

importance and custody must be given to the father who is in a better position to raise them.

Hence, order of the US court passed in favour of respondent regarding the custody of his

daughter is enforceable in India.

PRAYER
42
H. (Infants) In re, (1966) 1 WLR 381 (Ch & CA).

43
Supra note 1.

44
Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42.

MEMORIAL ON BEHALF OF RESPONDENT

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Wherefore, in the light of the facts stated, arguments advanced and authorities cited, the

Respondent humbly prays before the Honourable Court, to be graciously pleased to, declare

that:

1. Petitioner is not Entitled for Divorce on the ground of Cruelty.

2. Petitioner is not entitled for Maintenance and Custody of their daughters

3. Respondent is entitled for a decree of RCR.

4. The order of the US court passed in favour of Respondent regarding the custody of his

daughters is enforceable in India.

AND/OR

Pass any other order that the Court may deem fit in the light of Justice, Equity and Good

Conscience.

And for this kindness, the Respondent, as duty bound as ever, shall humbly pray.

RESPECTFULLY SUBMITTED

COUNSELS ON BEHALF OF THE RESPONDENT

MEMORIAL ON BEHALF OF RESPONDENT