BEFORE THE HON’BLE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Under Article 132 of the Constitution of India

Case No. _____/1984

Smt. Saroj Rani .............................................................................................. Appellant

vs.

Sudarshan Kumar Chadha..............................................................................Respondent

1 | P a g e MEMORANDUM ON BEHALF OF REPSONDENT

 Table of contents

S. No. Particulars Page No.

1. List of Abbreviations
2. Index of Authorities
3. Statement of Jurisdiction
4. Statement of Facts
5. Statement of Issues
6. Summary of Arguments
7. Arguments Advanced
Issue- 1. Whether the Respondent was entitled to the decree of
divorce although he failed to comply with the consent decree for
restitution of conjugal rights;
Issue-2 Whether Section 9 of the HMA violated Article 14 and
Article 21 of the Constitution.

8. Prayer

List of Abbreviations

Abbreviation Abbreviated word

Hon’ble Honourable
HC High Court
V. Versus
& And
i.e. That is
s/d Signed
Art. Article
SC Supreme Court

Index of Authorities

Statutes:

1. The constitution of India

2. Hindu Marriage Act, 1955

2|Page MEMORANDUM ON BEHALF OF RESPONDENT

 STATEMENT OF JURISDICTION

The Respondent humbly submits that this Hon’ble Court has jurisdiction to
entertain the present Writ Petition under Article 132 of the Constitution of India.
The Respondent is seeking enforcement of his rights under the Constitution of
India, which have been violated by the actions and decisions of the Appellant.

The jurisdiction of this Honorable Court is invoked under Article 132 of the
Constitution of India, which confers upon the Supreme Court the authority to hear and
adjudicate appeals from any judgment, decree, or final order of a High Court in the
territory of India, whether in a civil, criminal, or other proceedings, if the High Court
certifies that the case involves a substantial question of law as to the interpretation of
the Constitution.
The Respondent submits that the case involves a substantial question of law as to the
interpretation of the Constitution.
The High Court has duly certified that the present case involves a substantial question
of law as to the interpretation of the Constitution, as required under Article 132 of the
Constitution of India.
Pursuant to the said certification and in exercise of the jurisdiction vested upon this
Honorable Court under Article 132, the Respondent respectfully opposes the leave to
appeal to the Supreme Court of India against the judgment/decree/order of the High
Court in the above-captioned matter.
The Respondent undertakes to comply with all procedural requirements and to present
arguments and authorities in opposition to the appeal before this Honorable Court.

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 STATEMENT OF FACTS

● Marriage occurred on January 24, 1975, in Jullundur City according to Hindu Vedic
rites.
● Two daughters were born namely,Menka on January 4, 1976, and Guddi on February
28, 1977.
● Allegation made by the wife was that the cohabitation ceased on May 16, 1977, with
the husband allegedly expelling the wife and withdrawing from her society.
● However, tragically the Second daughter Guddi passed away in the respondent's
house on August 6, 1977.
● The present appellant, i.e the wife, sought a legal action On October 17, 1977, filing a
suit under Section 9 of the Hindu Marriage Act 1955 seeking restitution of conjugal
rights.
● In view of the legal proceedings, the summary states that
1.Wife alleged maltreatment and sought restitution of conjugal rights.
2. Maintenance pendente lite and litigation expenses granted on March 21,
1978.
3. Consent decree for restitution of conjugal rights passed on March 28,
1978, though
Husband disputed allegations
4. Wife alleged brief cohabitation post-decree, which courts found
unconvincing.

● In lue of the same, the husband filed for divorce under Section 13 of the Act on April
19, 1979, citing lack of cohabitation despite the decree.
● The appellant to-and-fro Denied lack of reconciliation attempts, asserted brief
cohabitation, and filed an application under Section 28A for enforcement of the
decree.

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 ISSUES RAISED

[ISSUE 1]
Whether the respondent was entitled to the decree of divorce although he failed
to comply with the consent decree for restitution of conjugal rights?

[ISSUE 2]
Whether Section 9 of HMA violates Article 14 and 21 of the Constitution of
India, 1950?

5|Page MEMORANDUM ON BEHALF OF RESPONDENT

 SUMMARY OF ARGUMENTS

ISSUE I- WHETHER THE RESPONDEN WAS ENTITLED TO THE DECREE OF

DIVORCE
ALTHOUGH HE FAILED TO COMPLY WITH THE CONSENT DECREE FOR THE
RESTITUTION OF CONJUGAL RIGHTS

The respondent challenges the petitioner's claims under Section 9 of the Hindu Marriage Act

1955, asserting that he did not expel the appellant from their shared residence nor withdraw

from her society. However, a comprehensive analysis reveals the respondent's stance as

untenable. Section 9 aims to provide relief to a deserted spouse, emphasizing the sanctity of

marriage and fulfillment of marital obligations. The terms "expel" and "withdraw from

society" require interpretation consistent with legislative intent, considering both overt acts

and cumulative conduct. Even if not overt, the respondent's behavior may have rendered

cohabitation intolerable. Equity and fairness demand safeguarding the deserted spouse's

rights. Despite the respondent's dispute, a broad interpretation of Section 9 reveals the

petitioner's strong case for relief, ensuring justice and upholding the sanctity of marriage.

ISSUE II- WHETHER SECTION 9 OF HMA VIOLATES ARTICLE 14 AND 21

OF CONSTITUTION OF INDIA

Non-Discrimination (Article 14):

● Section 9 applies uniformly to all married Hindu couples, without arbitrary

discrimination based on gender, caste, or creed.
● This ensures equal treatment under the law for all Hindu spouses seeking
restitution of conjugal rights, thus complying with the principle of equality
enshrined in Article 14.
Right to Life and Personal Liberty (Article 21):

● Article 21 encompasses the right to marital happiness and companionship.

6|Page MEMORANDUM ON BEHALF OF RESPONDENT
 ● Section 9 facilitates the enforcement of this right by providing a legal remedy
for spouses seeking the restoration of conjugal relations, thereby promoting
the fundamental right to lead a fulfilling married life.
Protection of Family Unity:

● Section 9 serves the objective of preserving family unity and cohesion by

encouraging reconciliation and restoring conjugal relations.
● This aligns with Article 21's spirit, which seeks to safeguard the sanctity of
family life and matrimonial bonds.
Judicial Review and Safeguards:

● The availability of judicial review ensures that Section 9 operates within

constitutional principles and respects fundamental rights.
● Courts have the authority to scrutinize its application, mitigating concerns
regarding potential abuse or arbitrary invocation.

In conclusion, the judgment in Smt. Harvinder Kaur v. Harmander Singh Choudhry provides

compelling reasoning supporting the constitutionality of Section 9. By relying on this

judgment, the respondent can demonstrate that Section 9 upholds fundamental rights,

promotes family welfare, and aligns with constitutional provisions, particularly Articles 14

and 21.

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 ARGUMENTS ADVANCED

[ISSUE – I] Whether the respondent was entitled to the decree of divorce

although he failed to comply with the consent decree for restitution of conjugal
rights?

In addressing the dispute raised by the respondent regarding the petition under
Section 9 of the Hindu Marriage Act 1955, it is imperative to delve into the
nuances of the law and the factual circumstances of the case. The essence of
the respondent's argument lies in the contention that he neither expelled the
appellant from their shared residence nor withdrew from her society, thereby
challenging the grounds on which the petition is based. However, a
comprehensive analysis reveals that the respondent's position is untenable and
fails to withstand scrutiny.

Firstly, it is crucial to underscore the overarching objective of Section 9 of the

Hindu Marriage Act 1955, which is to provide relief to a spouse who has been
deserted by the other without reasonable cause and without the consent or
against the wish of the deserted spouse. This provision serves to uphold the
sanctity of marriage and ensure the fulfillment of the marital obligations owed
by each spouse to the other.

In light of this overarching objective, it is imperative to interpret the terms "expel"

and

"withdraw from society" in a manner consistent with the legislative intent

behind Section 9. The term "expel" denotes a forced removal or exclusion of
the spouse from the shared residence, whether through direct action or through
conduct that renders cohabitation intolerable or impossible. Similarly,
"withdrawal from society" encompasses actions or behavior by one spouse that
sever the emotional or physical companionship essential to the marital
relationship.

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In the present case, although the respondent may contend that he did not overtly
expel the appellant from their shared residence or explicitly withdraw from her
society, it is incumbent upon the court to consider the totality of the
circumstances. The concept of constructive desertion recognizes that desertion
can occur not only through explicit actions but also through conduct that
renders the marital relationship untenable or unsustainable. Therefore, the focus
should not solely be on overt acts of expulsion or withdrawal but also on the
cumulative effect of the respondent's conduct on the appellant's well-being and
the viability of the marital relationship.

Moreover, it is essential to scrutinize the respondent's conduct leading up to the

filing of the petition. Even if the respondent did not physically expel the appellant
from the shared residence, his actions or behaviour may have created an
environment that effectively compelled the appellant to leave or rendered
cohabitation intolerable. Similarly, the respondent's failure to fulfil his marital
obligations or provide emotional support may constitute a withdrawal from
society within the purview of Section 9.

Furthermore, it is imperative to consider the principle of equity and fairness in

adjudicating disputes under Section 9. The court must safeguard the rights and
interests of the deserted spouse and ensure that justice is not thwarted by
narrow interpretations or technicalities. In cases where the respondent's conduct
has rendered the marital relationship untenable or has deprived the appellant of
the companionship and support inherent in marriage, the court must not hesitate
to grant relief under Section 9.

In conclusion, while the respondent may dispute the grounds for the petition under
Section 9 of the Hindu Marriage Act 1955, a thorough analysis of the law and the
factual circumstances of the case reveals that the petitioner has a strong case for
relief. The court should adopt a broad and purposive interpretation of the provisions
of Section 9 and consider the cumulative effect of the respondent's conduct on the
appellant's well-being and the viability of the marital relationship. Justice demands
that the court uphold the sanctity of marriage and provide relief to the deserted spouse
in accordance with the principles of equity and fairness.

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 [ISSUE – II]
Whether Section 9 of HMA violates Article 14 and 21 of the Constitution of
India, 1950?
In the case of Smt. Harvinder Kaur v. Harmander Singh Choudhry, the Delhi
High

Court provided significant insights into the constitutional validity of Section 9

of the Hindu Marriage Act, 1955. Drawing from this judgment, the Respondent

can advance the following arguments to substantiate the assertion that Section 9

does not infringe against the provisions of Article 14 and 21 of the Constitution

of India:

Non-Discrimination (Article 14):

● The Delhi High Court, in the aforementioned case, emphasized

that Section 9 applies uniformly to all married couples governed
by Hindu personal laws, without any arbitrary discrimination.
● The provision does not distinguish between individuals based on
arbitrary classifications but applies to all Hindu spouses seeking
restitution of conjugal rights, irrespective of gender, caste, or
creed.
● Therefore, Section 9 does not violate the principle of equality
enshrined in Article 14 of the Constitution, as it treats all
similarly situated individuals equally under the law.
Right to Life and Personal Liberty (Article 21):

● The Delhi High Court recognized that the right to life and
personal
liberty under Article 21 encompasses the right to marital
happiness and companionship.
● Section 9 of the Hindu Marriage Act, 1955, facilitates the
enforcement of this right by providing a legal remedy for
spouses seeking the restoration of conjugal relations.

10 | P a g e MEMORANDUM ON BEHALF OF RESPONDENT

 ● By granting spouses the opportunity to seek reconciliation and
restore their marital relationship, Section 9 promotes the
fundamental right to lead a meaningful and fulfilling married
life, thereby upholding Article 21 of the Constitution.
Protection of Family Unity:

● The judgment in Smt. Harvinder Kaur v. Harmander Singh

Choudhry recognized that Section 9 serves the overarching
objective of preserving family unity and cohesion.
● By encouraging reconciliation and the restoration of conjugal
relations, the provision aims to prevent the dissolution of
marriages and the consequent disruption of family life, which is
essential for the well-being of individuals and society as a whole.
● Thus, Section 9 aligns with the spirit of Article 21, which seeks
to protect the sanctity of family life and the bonds of matrimony.

Judicial Review and Safeguards:

● The Delhi High Court, in its judgment, highlighted the

availability of judicial review as a safeguard against any
potential abuse or arbitrary application of Section 9.
● Courts have the authority to scrutinize the application of Section
9 and ensure that it is invoked in a manner consistent with
constitutional principles and fundamental rights.
● This ensures that the provision operates within the framework of
constitutional values and respects the rights of individuals
involved, thus mitigating any concerns regarding its
compatibility with Articles 14 and 21.

11 | P a g e MEMORANDUM ON BEHALF OF RESPONDENT

In summary, the judgment in Smt. Harvinder Kaur v. Harmander Singh

Choudhry provides persuasive reasoning supporting the constitutionality of

Section 9 of the Hindu Marriage Act, 1955. By drawing upon the principles

articulated in this judgment, the Respondent can effectively demonstrate that

Section 9 does not infringe against the provisions of Article 14 and 21 of the

Constitution of India, but rather upholds fundamental rights and promotes the

welfare of married couples within the Hindu community.

12 | P a g e MEMORANDUM ON BEHALF OF RESPONDENT

 PRAYER

Wherefore, in the lights of facts stated, issues raised, arguments advanced and
authorities cited,it is most humbly prayed and implored before the
Hon’ble Court, that it may graciously be pleased to:

1. Declare the consent decree upheld by the High Court as null and void.
2. To grant divorce under section 13 of the Hindu Marriage Act,1955

AND/OR

Pass any order, direction or relief that may deem fit in the best interest of
Justice, Fairness, Equity and Good Conscience.

For which act of your honours kinds the Respondent shall remain ever grateful

and pray.

Place:

s/d -

Date: / / 2024 Counsel for the Respondent

13 | P a g e MEMORANDUM ON BEHALF OF RESPONDENT