MEMORIAL ON BEHALF OF APPELANT

IN THE HON’BLE SUPREME COURT OF INDIA

CIVIL APPELATE JURISDICTION

CIVIL APPEAL NO : _/2024

IN THE MATTER OF

ALKA RUDRESH ……..……..APPELANT

V/S

VIJAY SANANG ………RESPON DANT

MEMORIAL ON BEHALF OF APPELANT

COUNCILS ON BEHALF OF APPELANT

1.TEJASWINI MAHADEO NANKAR

2.PUSHAPA PANDURANG DHAYGUDE

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TABLE OF CONTENTS

❖ 1.List of abbreviation

❖ 2.Index of authorities

❖ 3.Statement of jurisdiction

❖ 4.Statement of facts

❖ 5.Summary of arguments

❖ 6.Arguments in advanced

❖ 7.Prayer

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LIST OF ABBREVIATIONS

SC : ………………………………………………………………………………..Supreme Court

SCC: ………………………………………………………………………………Supreme court cases

SLP : ………………………………………………………………………………..Special Leave Petition

v/s ………………………………………………………………………………….versus

art …………………………………………………………………………………..Article

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INDEX OF AUTHORITIES
LAWS AND STATUTES
1.HINDU MARRIAGE ACT 1995
2.CONSTITUTION OF INDIA 1950
REPORTS
1. 75th LAW COMMISSION REPORT 1978
2. ALL INDIA REPORTER

CASES
1.AMARDEEP SINGH V/S HARVEEN KAUR ( On 12 September
,2017 )
2.AMEET KUMAR V/S SUMAN BENIWAL (On 11 December ,2021 )
3.poonam V/S Sumit Tanvar (On 22 March 2010)
WEBSITES
➢ INDIANKANOON
➢ Newindiaexpress
➢ Legalservicesindia
➢ Ecourts .gov
➢ Manupatra
➢ Pathlegal
➢ The Lawyer portal

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STATEMENT OF JURISDICTION
The appellants desiring a decree of divorce between them,
on a ground not available under the statute that governs
their marriage are approaching the hon’ble Supreme court
under article 142 of the constitution of INDIA.Empowering
the Supreme Court: Article 142 empowers the Supreme Court to
pass any decree or order necessary for doing complete justice
in any case or matter pending before it. These decrees or orders
are enforceable across India's territory, making them significant
tools for judicial intervention.

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STATEMENT OF FACTS
(1)Despite the increasing trend of filing the divorce petitions in the
courts of law, the institutions of marriage are considered to be a
pious, spiritual and invaluable emotional life-net between the
husband and wife in the society. It is governed not only by the
letters of law but by the social norms as well, so many
relationships stem from and thrive on the matrimonial
relationships in the society.

(2)Two parties moved the Supreme Court of Sindhia to grant them

divorce using its powers under Article 142. Article 142 of the
Constitution of Sindhia exclusively enables the Supreme Court to
issue or pass any order that it feels it necessary to provide
complete justice in a case before it. The Petitioners were mutually
consenting parties who said that their marriage was irretrievably
damaged (not a ground for divorce under the Hindu Marriage Act,
1955 (HMA).

(3)Normally, mutually consenting petitioners must approach a

Family Court under Section 138 of the HMA. They had arrived at a
settlement before they approached the Supreme Court.
Meanwhile, the Family Court was yet to hear their case.

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ISSUES RAISED
1. Can article 142 be used to decide cases at all by Supreme
Court?

2. Whether SC can grant divorce in exercise of the power under

article 142 (1) of constitution of Sindhia when there is complete
irretrievable breakdown of marriage in spite of other spouse is
opposing the prayer?

3. what rule should the hon’ble supreme court follow to dissolve a

marriage between consenting parties without referring to family
court?

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SUMMARY OF ARGUMENTS Issue

1: Can article 142 be used to decide cases at all by supreme court?
IN a significant verdict ,a constitution bench of supreme court held
that it can invoke special powers under art 142 of the constitution
of india to grant divorce on the ground of irretrievable breakdown
of marriage .
( SHILPA SHAILASH V/S VARUN SHREENIVASAN 1st MAY 2023 )
The present case was originally filed in 2014 where the parties
sought a divorse under art 142 .while granting divorce to the parties
sc said it can dipart from procedure and substaintive laws only IF
the decision exercise the power under art 142(1) is “based on the
consideration of public policy.”
WHAT IS ARTICLE 142 OF INDIAN CONSTITUTION ?
Under article 142 the supreme court may pass decree or order as
is necessary for doing complete justice in any matter and any
decree so passed shall be inforseable throught the india .

Issue
2: whether SC can grant divorce in exercise of the power under
article 142(1) of constitution of sindhia , when there is complete
irretrievable breakdown of marriage in spite of other spouse in
opposing the prayer?
The counsel for APPELLANT most humbly and most respectfully
state that following are grounds for break down of marriage
1. Period of time the parties had cohabited after marriage
2. when parties had last cohabited

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3. nature of allegations made by parties against each other and

there family members
4. the order pass in the legal proceedings from time to time
5. Cumulative impact on the personal relationships
6. How many attempt where made to settle the disputes by
intervention of court or through mediation
7. When the last attempt was made

Issue
3: What rule should hon’ble supreme court follow to dissolve a
marriage between consenting parties without referring to Family
Court?
It is most humbly and respectfully submitted that Article 142 deals
with the enforcement of the decrees and orders of the apex court
to do ‘complete justice’ in any matter pending before it, to dissolve
a marriage between consenting parties without referring them to
family court to wait for mandatory period prescribed under sec
13(b) of Hindu marriage Act
In the landmark case the hon’ble sc held that the mandatory
waiting period of 6 month for the divorce by mutual consent can be
dispensed with as per section 13 (b) of the of the Hindu marriage
Act

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Arguments Advanced
A) Can article 142 be used to decide cases at all by Supreme
Courts?
B) Article 142 provides a unique power to the Supreme Court
to do “complete justice” between the parties, where,at
times the law or a statute may not provide a remedy in those
situations the court can extend itself to put an end to a
dispute in a manner that would fit the fact .
C) Article 142. Enforcement of decrees and orders of Supreme
Court and orders as to discovery, etc
(1) The Supreme Court in the exercise of its jurisdiction may pass
such decree or make such order as is necessary for doing
complete justice in any cause or matter pending before it, and
any decree so passed or order so made shall be enforceable
throughout the territory of India in such manner as may be
prescribed by or under any law made by Parliament and, until
provision in that behalf is so made, in such manner as the
President may by order
• One of the first landmark case of Naveen Kohli vs. Neelu Kohli in
2006 wherein the Supreme Court upheld the Family
Court’conclusions that the Appellant had been subjected to the
Respondent’s psychological, physical, and financial abuse to the
point where their marriage was irreparably broken and held
Irretrievable Breakdown of Marriage as a valid ground for granting

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a divorce and recommend the Legislature to amend the Hindu

Marriage Act, 1955 to incorporate relevant provisions according to
the judgment. Prior to this decision, the only grounds for divorce
in India were specified under the Hindu Marriage Act, which
included cruelty, adultery, desertion, conversion to another
religion, and mental disorders.
Another judgment subsequent to the above followed K. Srinivas
Rao vs D.A. Deepa in the year of 2013, the Supreme Court held
that held that the concept of Irretrievable Breakdown of Marriage
can be applied to cases where the parties have been living
separately for a considerable period, and the marriage has broken
down irretrievably.
Over the years, we can observe that whenever the parties to a
divorce need assistance to settle their matter of dispute, the
courts have left no stone unturned and consider each case in a
different manner as per the needs and circumstances of the
parties. Courts as a matter of practice first made effects to
restore the marriage unless it is a mutual consent divorce
petition4. It all efforts fail, Courts proceeded with divorce

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In a recent Supreme Court Judgment of Shilpa Sailesh vs. Varun

Sreenivasan, the Hon’ble Court laid down the factors to
determine irretrievable breakdown of marriage
1. The period for which the parties had cohabited after marriage.
2. When the parties had last cohabited.
3. The nature of allegations made by the parties against each
other and their family members. 4. The orders passed in the
previous legal proceedings and their impact on the personal
relationship.
5. Number of attempts made to settle the disputes by
intervention of the court or mediation.
6. The period of separation should be sufficiently long. (6 years
and more.Along with these factors, the economic and social
status of the parties, including their educational qualifications,
existence of children and alimony are also to be considered
before granting a decree of divorce.The Court was also of the
opinion that, when there is complete separation over a long
period and the parties have moved apart and have mutually
agreed to separate, it would not serve any purpose to prolong the
litigation and the divorce should be granted

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without further delay as the parties have had time to ponder,

reflect and take a conscious decision prescribes of the case.
According to Law Commission, Government of India, April 7, 1978
recommendationsThe suggestion sums up the essence of the
proposal in these terms:—
"The essence of the proposal is that the Hindu marriage should be
allowed to be dissolved if the husband and wife have lived apart
for a period of say 5/10 years and the marriage is irretrievably
broken due to incompatibility, clash of personality or similar other
reasons, as is permissible under many systems of law of
advanced countries."
Cases to refer :
1.Rajat Gupta v/s Rupali Gupta (2018)
2.Lalit kumar v/s Nirmala @ Ravina ( 2023)
3.Avaneesh Sood v/s Tithi sood ( 2012)
4.Anil Kumar Jain v/s Maya Jain (2009)
5.Anil Khatwani v/s Nisha Khatwani ( 2012)

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B. Whether Supreme Court can grant divorce in exercise of the

power under art 142[1] of Constitution of Sindhia, when there is
complete and irretrievable breakdown of marriage in spite of
other spouse is opposing the prayer?
The facts established by the parties clearly shows that the
marriage has completely failed and there is no possibility that the
parties will cohabit together. There is no possibility of
reconciliation and it is meaningless to prolong the agony.
It would be cruel to not grant divorce to the parties. Supreme
Court in the case of 82 years old wife and 89 years old husband’s
divorce case [Dr. Nirmal Singh Panesar vs. Misses Paramjit kaur
Panesar]files under art142 of the Constitution on the ground of
irretrievable breakdown of marriage held that It can exercise “it’s
discretion under the inherent powers under the art142 of the
Constitution of Sindhia for dissolving a marriage on the ground of
‘irretrievable breakdown of marriage’ even when one of the
spouses opposes the dissolution of marriage.
In case of Shilpa Shailesh v. Varun Sreenivasan, the apex court
said that divorces granted through such a route on the ground of
irretrievable breakdown of marriage, adding it can be possible
even when one of the parties opposes such a decree.

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Dr Nirmal Singh Panesar v/s Mrs. Paramjit Kaur Panesar @ Ajinder

Kaur Panesar[Civil Appeal No.2045 of 2011].
C. What rule should the Hon’ble SC follow to dissolve a marriage
between consenting parties without referring to family court?
Supreme court has reiterated that it can dissolve a marriage on
the grounds of ‘irretrievable breakdown’ by invoking the special
powers under article 142 of the Constitution Article 142 deals
with the enforcement of the decrees and orders of the apex court
to do ‘complete justice’ in any matter pending before it, to
dissolve a marriage between consenting parties without referring
them to family court to wait for mandatory period prescribed
under sec 13(b) of Hindu Marriage Act 1955. In a case filed in
2014 titled Shilpa Sailesh vs. Varun Sreenivasan,where the parties
sought a divorce under art142 , the SC said that “ This
discretionary power is to be exercised to do ‘complete justice’ to
the parties, wherein this court is satisfied that the facts
established show that the marriage has completely failed and
there is no possibility that the parties will cohabit together, and
continuation of the formal legal relationship is unjustified.

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However, the apex court has said that the period of six months
can be dispensed with if certain requirements and conditions are
met the time gap is meant to enable the parties to cogitate,
analyse and take a deliberated decision.
The object of the cooling off period is not to stretch the already
disintegrated marriage, or to prolong the agony and misery of the
parties when there are no chances of the marriage working out”
While holding that irretrievable breakdown of marriage can be a
ground to grant divorce by invoking powers under Article 142 of
the Constitution, the Supreme Court clarified that a party cannot
file a writ petition under Article 32 of the Constitution of India and
seek relief of dissolution of marriage on the ground of irretrievable

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PRAYER
PRAYER WHEREOF IN THE LIGHT OF FACTS OF THE INSTANT
CASE, WRITTEN PLEADINGS AND AUTHORITIES CITED, IT IS
HUMBLY PRAYED BEFORE THIS HON’BLE SUPREME COURT THAT
IT MAY BE PLEASED TO HOLD, ADJUDGE AND DECLARE:
1) The appeal is maintainable under art 142 of constitution of
Sindhia .

2) The divorce may be granted in the interest of justice.

3)Pass any other remedy as this hon’ble court deems fit and
proper in the circumstances of the case.

AND FOR THIS ACT OF KINDNESS AND JUSTICE THE APPELLANT

SHALL BE DUTY BOUND AND FOREVER PRAY.

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breakdown of marriage directly from it.

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