SUBJECT MOOT- FAMILY LAW

IN THE HON’BLE FAMILY COURT OF JAIPUR

Mr. RAHUL …Petitioner

V.

Mrs. ANJALI …Respondent

MEMORANDUM ON BEHALF OF THE PETITIONER

SUBMITTED TO: SUBMITTED BY: -

Miss. POOJYASHREE KUMAWAT RITIK YADAV
ASST. PROF. BBALLB (5th SEM)
 TABLE OF CONTENTS
TABLE OF ABBREVIATIONS.................................................................................................................................... 3

INDEX OF AUTHORITIES.......................................................................................................................................... 4

STATEMENT OF JURISDICTION.............................................................................................................................. 6

STATEMENT OF FACTS............................................................................................................................................. 7

STATEMENT OF ISSUES............................................................................................................................................ 8

SUMMARY OF ARGUMENTS................................................................................................................................... 9

ARGUMENTS ADVANCED

I. WHETHER MR. SANDEEP IS ENTITLED TO FILE FOR DIVORCE?...........................................10

PRAYER...................................................................................................................................................................... 13

MEMORIAL ON BEHALF OF PETITIONER

 TABLE OF ABBREVIATIONS

¶ Paragraph
A.I.R All India Reporter
ANR. Another
ART. Article
HON’BLE Honourable
LTD. Limited
ORS. Others
R/W Read With
S. Section
S.C. Supreme Court
S.C.C. Supreme Court Cases
S.C.R. Supreme Court Report
V. Versus

MEMORIAL ON BEHALF OF PETITIONER

 INDEX OF AUTHORITIES
TABLE OF CASES

S.NO. CASES CITATION

1. A. Jayachandra v. Aneel Kaur 2005 (1) CTC 215 (SC) :

2005 (2) SCC 22

2. Sandhya Rani v. Kalyanram Narayanan 1994) Supp. 2 S.C.C. 588

3. Salome v.Dr.PrinceD.Immanuel Madras HC (C.M.A.

(MD)Nos.238 of 2012 and
239 of 2012)

4. Dilip Goswami v. State of Tripura W.P. (HC) No. 05 of 2013

5. K.G. v. State of Delhi W.P. (Crl.) No.374/2017

6. Kamla Devi v. Himachal Pradesh AIR 1987 HP 34

7. Kanika Goel v. State of Delhi Miscellaneous Application

No. 2487-2492 Of 2018 In

Criminal Appeal No. 635-

640 Of 2018

8. MausamiMoitra Ganguli v. Jayant Ganguli (JT 2008 (6) SC 634)

9. Meera Agarwalla Bansal And Anr. v. Shyam I (2002) DMC 593

SundarAgarwalla

10. Naveen Kohli v. Neelu Kohli AIR (2006) SC 1675

MEMORIAL ON BEHALF OF PETITIONER

LIST OF STATUTES REFERRED

1. FAMILY COURTS ACT, 1984

2. HINDU MARRIAGE ACT, 1955
3. HINDU MINORITY AND GUARDIANSHIP ACT, 1956

LIST OF BOOKS REFERRED

1. LAW OF MARRIAGE AND DIVORCE, PARAS DIWAN AND PEEYUSHI DIWAN (7TH ED.)
2. V.N.SHUKLA’S- CONSTITUTION OF INDIA, EBC (13TH ED..)
3. M.P. JAIN – INDIAN CONSTITUTIONAL LAW, LEXIS NEXIS (8TH ED.)

MEMORIAL ON BEHALF OF PETITIONER

 STATEMENT OF JURISDICTION

The Petitioner herein has approached the Hon’ble family court of jaipur by invoking section

71 of the Family Courts Act,1984 which states that a family court has and can exercise all the

jurisdictions exercised by the district court of subordinate civil court, corresponding to any

law for the time being in force provided that the disputes are of the nature specified in the

explanation. With effect to the very case the first explanation to this section states that the

family court can handle cases relating to 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 restitution of conjugal rights or judicial separation or

dissolution of marriage, thus making clear that the present court has jurisdiction.

1
Section 7 in The Family Courts Act, 1984
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-section 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 restitution of conjugal rights or
judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any
person;
(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either
of them;
(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.
(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise-
(a) the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to order for
maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and
(b) such other jurisdiction as may be conferred on it by any other enactment.

MEMORIAL ON BEHALF OF PETITIONER

 STATEMENT OF FACTS

1. Rahul and Anjali got married in New Delhi as per the Hindu Marriage Act, 1955. After

marriage, Rahul was soon promoted and got a job offer from the Silicon Valley in USA

and Anjali by that time had just landed a resident position at a local hospital. But Anjali

was forced to move to USA with rahul. In order to practise medicine in the states she had

to clear the medical board which she eventually did. Soon after, she realizes that it is the

appropriate time for her to have a child but rahul opposes given their financial instability.

2. Later in 2010, after many failed attempts the couple decided to get their child born through

surrogacy in India and eventually bring him/her with them to USA.

3. After many unsuccessful attempts at finding a surrogate they had finally found teena who

was willing to act as a surrogate to their baby and it was decided verbally between

Sandeep, Anjali and teena, that teena would have no right and access to the child any time

in the future. Rahul and Anjali then returned to USA.

4. In 2014, a baby girl was born and the couple returned to India. The baby, being a pre-

mature one was advised not to travel for the first few months. Anjali leaves to USA for

work whereas rahul stayed back taking care of the baby, and owing to the time he spent

with teena and the baby he started developing romantic feelings towards teena and started

ignoring Anjali and his emotional dependence on her also started to fall drastically.

5. Anjali then tries to clarify things with rahul, but it led to heated arguments and fights

between them. Rahul files for divorce, believing that the relationship he had with Anjali

was now over. In the meantime, teena claimed that she did not want to give up the custody

of the child as she had become emotionally attached to the child. Anjali files for ROCR

and custody of the child.

MEMORIAL ON BEHALF OF PETITIONER

 STATEMENT OF ISSUES

ISSUE I

WHETHER MR. Rahul IS ENTITLED TO FILE FOR DIVORCE?

MEMORIAL ON BEHALF OF PETITIONER

 SUMMARY OF ARGUMENTS

I. WHETHER MR. Rahul IS ENTITLED TO FILE FOR DIVORCE?

The counsel for the Petitioner most reverently submits before this court that Mr. rahul is

entitled to file for divorce as the matrimonial bond is irretrievably broken down, not being

alive anymore and also because, there is no cohabitation for almost 6 years now. In order to

protect the sanctity of marriage, to reduce the number of unhappy marriages and to let the

couple live peacefully for the rest of their lives without any further mental agony, it is

necessary to dissolve such a marriage and thus, the case at hand as well.

MEMORIAL ON BEHALF OF PETITIONER

 ARGUMENTS ADVANCED

I. WHETHER MR. Rahul IS ENTITLED TO FILE FOR DIVORCE?

¶1. The Petitioner most reverently submits before the Hon'ble Family court of Jaipur that Rahul is

entitled to file for divorce. According to Section 13 of the Hindu Marriage Act, 1955, there

are certain set grounds under which a person can claim for divorce.

I.1. Whether irretrievable breakdown of marriage be set as a ground for divorce?

¶2. Irretrievable breakdown of marriage is a situation where the couple can no longer live

together as husband and wife. One partner or both must prove to the court that the marriage

broke down so badly that there is no reasonable chance of getting back together. Till date, the

prevailing laws in India regarding the issue of divorce have not recognized a situation where,

despite the fact that they live under the same roof, their marriage is equivalent to

separation. This is the matter of prime importance to be addressed but is not under the

limelight yet.

MEMORIAL ON BEHALF OF PETITIONER

¶3. In A. Jayachandra v. Aneel Kaur2, the Supreme Court examined such cases. And after

discussing the facts concluded that When the respondent gives priority to her profession over

her husband's freedom it points unerringly at disharmony, diffusion and disintegration of

marital unity, from which the Court can deduce irretrievable breaking of marriage.The Court

found the marriage irretrievably broken down and granted divorce to the husband. This is

however very surprising, as many a times in similar circumstances the court, rather than

granting a decree for divorce, would grant them an order pertaining to restitution of conjugal

rights holding the notion of a Hindu marriage being sacramental as the very foundation for

the said decree.

¶4. In Sandhya Rani v. Kalyanram Narayanan3, the Court reiterated and took the view that since

the parties are living separately for the more than three years, and have no doubt in our mind

that the marriage between the parties has irretrievably broken down. There is no chance

whatsoever of their coming together. Therefore, the Court in such case, granted the decree of

divorce.

2
2005 (1) CTC 215 (SC) : 2005 (2) SCC 22
3
(1994) Supp. 2 S.C.C. 588

MEMORIAL ON BEHALF OF PETITIONER

¶5. According to Hindu Law, irretrievable breakdown of marriage is not considered as a valid

ground for divorce but the court in the case of Salome v.Dr.PrinceD.Immanuel4, following

the precedents, has held irretrievable breakdown of marriage a valid ground for divorce. To

prevent the appellant from more cruelty, the appeal of divorce has been allowed.

Furthermore, this Court has also dismissed the claim filed by the respondent for the

restitution of conjugal rights

¶6. Therefore, it is humbly submitted before this hon’ble court that in order to protect the sanctity

of marriage, to reduce the number of unhappy marriages and to prevent from getting wasted

the precious years of the life of the spouses, it is necessary to dissolve such a marriage and

thus in the case at hand as well. Now that this case has been pending for almost 6 years now,

from 2015 to 2021, and the fact that they haven't started living together shows that the

marriage is already dead and reiterates the concept of irretrievable breakdown of marriage,

which can again be taken into consideration before granting them divorce

4
Madras HC (C.M.A.(MD)Nos.238 of 2012 and 239 of 2012)

MEMORIAL ON BEHALF OF PETITIONER

MEMORIAL ON BEHALF OF PETITIONER
 PRAYER
Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is

most humbly prayed before this Hon’ble Family Court to Hold/Adjudge/Declare that:

 Grant a decree of divorce against the couple,

AND/OR pass any other order or orders as this Hon’ble Court may deem fit and proper in the

circumstances of the case and in the interest of Justice, Equity and Good Conscience.

For this, the Petitioners shall be duty-bound and forever pray.

COUNSELS FOR THE PETITIONER

MEMORIAL ON BEHALF OF PETITIONER