Name: S.

VishnuKanth
Roll No: 1905LW1047
3RD Year LLB- ‘B’ Section

PRIST UNIVERSITY SCHOOL OF LAW MOOT COURT, 2022

BEFORE THE HON’BLE SUPREME COURT OF INDIA

PETITION NUMBER__________/2022

FILED UNDER ART.142 OF CONSTITUTION OF INDIA

IN THE CASE CONCERNING THE MATTER

AND

IN THE MATTER BETWEEN:

SANIA …………………………………………………………………………………….PETITIONER

VERSUS

CHANDRASEKAR …………………………………………………………………………RESPONDENT

MEMORIAL FOR PETITIONERS

1|Page MEMORIAL ON BEHALF OF APPELLATE/PETITIONER

 TABLE OF CONTENTS

TABLE OF CONTENTS ...................................................................................................... 2

TABLE OF ABBREVIATIONS ........................................................................................... 3
INDEX OF AUTHORITIES ................................................................................................. 4
STATEMENT OF JURISDICTION...................................................................................... 5
SUMMARY OF FACTS ....................................................................................................... 6
ISSUE RAISED .................................................................................................................... 7
SUMMARY OF ARGUMENTS ........................................................................................... 8
ISSUE-1................................................................................................................................ 8
ISSUE 2 ................................................................................................................................ 8
ISSUE 3 ................................................................................................................................ 8
ISSUE 4 ................................................................................................................................ 8
ARGUMENTS ADVANCED ............................................................................................... 9
PRAYER ............................................................................................................................ 19

2|Page MEMORIAL ON BEHALF OF APPELLATE/PETITIONER

 TABLE OF ABBREVIATIONS

1 SC SUPREMECOURT

2 HC HIGH COURT

3 FC FAMILY COURT

INDIAN
4 IAS ADMINISTRATIVE
SERVICE

5 & AND

6 @ AT

7 YRS YEARS

8 GOVT GOVERNMENT

9 SMA SPECIAL MARRIAGE

ACT

10 DVA DOMESTIC VIOLENCE

ACT

11 U/A UNDER ARTICLE

12 U/S UNDER SECTION

13 5 FIVE

14 AIR ALL INDIA REPORTER

15 MLB MARRIAGE LAW BILL

16 IPC INDIAN PENAL CODE

17 EVA EVIDENCE ACT

3|Page MEMORIAL ON BEHALF OF APPELLATE/PETITIONER

 INDEX OF AUTHORITIES

LIST OF STATUES:-

1. CONSTITUTION OF INDIA, 1950

2. FAMILY LAW IN INDIA
3. INDIAN PENAL CODE, 1860
4. LAW OF EVIDENCE, 1872

LIST OF BOOKS REFERRED:-

1. FAMILY LAW IN INDIA – G.C.V. SUBBA RAO
2. THE CONSTITUTION OF INDIA – V.N.SHUKLA
3. INDIAN PENAL CODE 1860 – RATANLAL & DHIRAJLAL
4. LAW OF EVIDENCE – DR.V.KRISHNAMACHARI

INTERNET SITES:-
1. http;//www.indiankanoon.com
2. http;//www.barandbench.com
3. http;//www.casemine.com
4. http;//www.scc blog.com
5. http;//www.live law.in
6. http;//www.ipleaders.in

CASES CITED:-

1. THE SUPREME COURT (DECREES & ORDERS) ENFORCEMENT

ORDER,1954(C.O.47)
2. CHANDRAKANT PATIL V STATE, (1998) 3 SCC 38: AIR 1998 SC 1165; M.C. MEHTA V U.O.I
(2007) 1 SCC 110: AIR 2007 SC 1087.
3. ROMESH CHANDRA V SAVITIRI,(1995)2 SCC 7: AIR 1995 SC 851; KANCHAN
DEVI V PROMOD KUMAR MITTAL,(1996)8 SCC 90: AIR 1996 SC 3192
4. R. SRINIVAS KUMAR V R. SHAMETHA
5. R. SRINIVAS KUMAR V. R. SHAMETHA
6. SIRAJMOHAMEDKHAN JANMOHEMEDKHAN V HAFIZUNNISA
YASINKHAN
7. RAMESH DUDANI V RAMESH K DUDANI
8. FAULT THEORY V BREAK DOWN THEORY
9. M.S. V S.D
10. RAJNESH V NEHA
11. KASTURI V SUBHAS
12. BADSHAH V URMILA BADSHAH GODSE & ANR
13. SIVANSANKARAN V SATHIMEENAL
14. SHOBA RANI V MADHUKAR REDDL
15. SAMER GHOSH V JAYA GHOSH
16. MAYA DEVI V. JAGDISH PRASAD

4|Page MEMORIAL ON BEHALF OF APPELLATE/PETITIONER

 STATEMENT OF JURISDICTION

This Hon’ble Supreme Court of India has the Jurisdiction to try, entertain and dispose of the
present case by virtue of Article.142 of the constitutio1950.

The Petitioner humbly submits this memorandum in response to the appeal filed before this
Hon’ble Court. The appeal invokes its jurisdiction under Art.142 of the constitution of India.

5|Page MEMORIAL ON BEHALF OF APPELLATE/PETITIONER

 SUMMARY OF FACTS

 Mr. Ramesh and Ms. Sania both were belonging to IAS batch 2010, good friends,
decided to convert their friendship into marital relationship with the consent of their parents
and married under SMA, 1954 in 2012.
 Mr. Ramesh was an orthodox person, extreme religious belief and wanted a male
child. Sania employed as an IAS officer and delivered two babies namely Geetha & Sapna in
the Year of 2014 & 2016. Hence there is no male child quarrel arose between them and
resulted in divorce with mutual consent.
 Amid Sania was transferred to Delhi, met Mr. Chandrashekar a smart, Handsome &
efficient IAS officer expressed his wish to marry her. As he got married they waited for
divorce & immediately after divorce they got married.
 After marriage Sania got very busy with administrative work, decided not to have
children for 5Yrs & was not taking proper care of her husband.
 Mr. Chandrashekar tried his level best to balance the relationship with Sania. But she
always restricted her daughters to spend time with him & made impression on them that he
is not their father.
 In 2018 Sania was transferred & shifted from Delhi to Bangalore. The behavior of
Sania didn’t change, was very dominant, abusive on phone and in person whenever meeting
him. Mr. Chandrashekar was residing alone in Delhi, there was no one to take care of him,
so hired a domestic servant Ms. Rama & asked her to stay at home this led to live in
relationship between them.
 In June 2019, Sania visited Delhi & came to know about their relationship as Rama
was pregnant. Being aggrieved with misconduct & extramarital affair she served a divorce
notice.
 Sania filed divorce petition in Delhi F.C, on the ground of irretrievable breakdown of
marriage & the petition dismissed. As aggrieved by the F.C decision she filed appeal in H.C
for the maintenance under the DVA,2005 & it also dismissed as there is no specific
provisions under the existing laws.

6|Page MEMORIAL ON BEHALF OF APPELLATE/PETITIONER

 ISSUE RAISED

The following questions are presented before the Hon’ble S.C of Vengadam in the instant
Matter:

1. Whether the divorce petition filed U/A 142 of the Indian Constitution 1950 on
irretrievable breakdown of marriage is maintainable or not?

2. Is this said to be the irretrievable break down of marriage or not?

3. Whether the petitioner shall claim the maintenance under DVA 2005 is valid or not?

4. Whether there is a presence of causing mental cruelty or not?

7|Page MEMORIAL ON BEHALF OF APPELLATE/PETITIONER

 SUMMARY OF ARGUMENTS

ISSUE-1

It is humbly submitted before this Hon’ble Court that the divorce petition filed U/A 142 of
the Indian Constitution 1950 on irretrievable breakdown of marriage is maintainable as it is
coupled with plenary and residuary powers to do complete justice in the matter before this
court.

ISSUE 2

It is humbly submitted before this Hon’ble Court that it is said to be as the irretrievable break
down of marriage as the respondent indulged in extra marital affairs which causes immense
mental stress, agony & it is considered to be the guilty of cruelty. Hence the offence of
cruelty is proved as the marriage is irretrievable break down.

ISSUE 3

It is humbly submitted before this Hon’ble Court that the petitioner shall claim maintenance
under DVA, 2005 as the respondent indulged in adultery & criminal breach of trust.

ISSUE 4

It is humbly submitted before this Hon’ble Court that there is a presence of cruelty offence
against the petitioner & the respondent is held liable for the alleged offences.

8|Page MEMORIAL ON BEHALF OF APPELLATE/PETITIONER

 ARGUMENTS ADVANCED

Whether the divorce petition filed U/A 142 of the Indian Constitution 1950 on
irretrievable breakdown of marriage is maintainable or not?

It is humbly submitted before this Hon’ble Court that the divorce petition filed U/A 142 of
the Indian Constitution 1950 on irretrievable breakdown of marriage is maintainable as it is
coupled with plenary and residuary powers to do complete justice in the matter before this
Hon’ble court.
1. This 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
the parliament and, until provision in that behalf is so made, in such manner as the
president may by order prescribe.1
2. Subject to the provisions of any law made in this behalf by parliament, the Supreme
court shall, as respects the whole of the territory of India, have all and every power to
make any order for the purpose of securing the attendance of any person, the
discovery or production of any documents, or the investigation or punishment of any
contempt of itself.

This power of the court cannot be curtailed even by the legislation. It also further exercise
only on the following conditions:
 It can be exercised only when the court when the court otherwise exercise its
jurisdiction.
 The order passed by the court must be necessary for doing complete justice in the
cause or matter pending before it.2

Under this Article its inherent power coupled with the plenary and residuary powers U/A 32
& 136 of the Indian Constitution and it embraces power to do complete justice in any matter
including civil proceedings, criminal proceedings, family etc…
The said Article also passes suitable orders in different matters such as grant of divorce not
otherwise clearly covered by the legislation. 3

1
The supreme court (Decrees & orders) Enforcement order,1954(C.O.47)
2
Chandrakant Patil V State, (1998) 3 SCC 38: AIR 1998 SC 1165; M.C. Mehta V U.O.I (2007) 1 SCC 110:
AIR 2007 SC 1087.
9|Page MEMORIAL ON BEHALF OF APPELLATE/PETITIONER
Even if there is no statutory law for recognizing irretrievable breakdown of marriage as a
ground for divorce in India this article 142 exercises inherent powers in order to dissolve a
marriage.
In the recent case it has been took note that this was done not only in cases where parties
ultimately, before this court, have agreed to do so but even otherwise.
If the Hon’ble court finds that the marriage is being continued only in the form of paper and
thus recognition of the futility of a completely failed marriage then this court may invoke the
extraordinary power U/A 142 as the marriage is found to be the death letter & in order to
bring an end to it.
In order to do complete justice this court may deal with the matter pending before it.
The following are the importance in order to render complete justice:
 From the aforesaid it has been clear that the Constitution of India believe that every
citizen of India must get “complete justice”.
 The said Article 142 of our Indian Constitution grants the power to the S.C for
passing any decree to do “complete justice”.
 But nowadays this article plays a vital role and also become a gigantic part of the S.C
in order to render “complete justice”
 Moreover there is no specific guideline or rule provided by the law which explains
when, where & under what circumstances the Apex court can invoke the said article
to do “complete justice”.

Thus it has been clearly states that the Article 142 invoked its extraordinary power in order
to render the complete justice.
Here the Petitioner has no point in continuing the marriage with the Respondent as the
petitioner sought in FC, HC & last for justification applied to this Hon’ble court in order to
obtain divorce without any further delay. As the Petitioner thinks there is emotionally dead &
no other point to persuade them to live together.

Aditi Wadhera V Vivek Kumar Wadhera

In this case the SC invoked its jurisdiction in order to waive the statutory period of waiting in
a divorce. They pointed out that, “There is, thus, recognition of the futility of a completely
failed marriage being continued only on paper… In numerous cases, where a marriage is

3
Romesh Chandra V Savitiri,(1995)2 SCC 7: AIR 1995 SC 851; Kanchan devi V Promod kumar mittal,(1996)8
SCC 90: AIR 1996 SC 3192.
10 | P a g e M E M O R I A L O N B E H A L F O F A P P E L L A T E / P E T I T I O N E R
found to be a dead letter, the court has exercised its extraordinary power under article 142 of
the Constitution of India to bring an end to it.”

R. Srinivas Kumar V R. Shametha

In this case the bench held that in view of the absence of legislation in this behalf, where it is
found that marriage is totally unworkable, emotionally dead, beyond salvage and has broken
down irretrievably.

In the aforesaid cases the court reiterated again & again the needy, and importance of the
inheritance power U/A 142 of the Indian Constitution in order to render complete justice
without any further delay. As in this case the personal relationship between the Petitioner and
Respondent has been greatly deteriorated and stained. Hence there is a need raised to the
petitioner to approach U/A 142 of the Indian Constitution.
As either side indulging the petition to grant divorce must be in a speedy manner, as there is
a tussle among them & no other option with them to lead. Then they shall appeal U/A142 of
our Indian Constitution to get immediate relief & remedy without any further delay.
Thereby concerning the emergency, need for justice & the petitioner petition has been
dismissed in all courts. The petitioner approached this court for complete justice.
Even the Law commission, in its reports in 1978 & 2009, recommended the Centre to take
immediate action regarded with irretrievable breakdown even though existing laws do not
recognize the ground for divorce. Therefore it suggested the Center to amend the laws with
regards to wedlock where it became a deadlock. As the Centre fail to act on the suggestions,
the apex court has from time to time invoke the Arti.142 to grant divorce.

The aforesaid statements made it clear that the petition for divorce U/A 142 of the
constitution has jurisdiction in order to deal with this matter, in view of peculiar facts &
circumstance of this case, it is said to be as maintainable.

Nature gave women too much power; the law gives them too little – Will Henry

11 | P a g e M E M O R I A L O N B E H A L F O F A P P E L L A T E / P E T I T I O N E R
Is this said to be the irretrievable break down of marriage or not?

It is humbly submitted before this Hon’ble court that the relationship solemnized between
Sania & Chandrasekar is purely said to be as an irretrievable break down of marriage
U/S 27 of the SMA, 1954 enumerates the grounds of divorce such as either husband or wife
can file a petition for divorce on the ground that the respondent:-
 Had voluntary sexual intercourse with a third person.
 Is undergoing sentence of imprisonment for seven yrs or more for an offence under
the IPC.
 Had deserted the petitioner for two yrs prior to the petition;
 Has treated the petitioner with cruelty;
 Has been incurably of unsound mind or suffering from mental disorder to such as an
extent that petitioner cannot be reasonably expected to live with respondent;
 Has been suffering from venereal disease in a communicable form;
 [has been suffering from [leprosy], the disease not having been contracted from the
petitioner;
 Has not been heard of as being alive for seven yrs or more;
 Has not resumed cohabitation for 1 year or more after the passing of a decree for
judicial separation against respondent;
 Has failed to comply with a decree for restitution of conjugal rights for one year or
more.

Special grounds for wife:

1. Husband being guilty of rape, sodomy or bestiality;
2. Through order for separate maintenance was passed against husband, he has not
resumed cohabitation for one year or upwards.

From the aforesaid it has been clearly stated that there is a reasonable ground for the
petitioner to approach this Hon’ble court under the irretrievable break down of marriage.
As per this gist the respondent with malice intent break down the trust of the petitioner, had
extra marital affairs with the servant Rama. It is to be noted that they were residing under a
roof in the past years as due to the transfer in 2018 the petitioner left him & went to
Bangalore. But within a year the respondent indulge in extra marital affairs with the hired
domestic servant Rama. After such incident the petitioner felt hard & depressed from mental

12 | P a g e M E M O R I A L O N B E H A L F O F A P P E L L A T E / P E T I T I O N E R
agony. Hence the petitioner can’t entertain such illicit act of the respondent & finds it
difficult to continue the relationship further. Thus it is said to be as irretrievable marriage.

R. Srinivas Kumar v. R. Shametha4

In this case the divorce was granted on the ground of irretrievable breakdown of marriage,
after examining various judicial pronouncements. It has been noted that such powers are
exercised not in routine, but in rare cases, in view of the absence of legislation in this behalf,
where it is found that a marriage is totally unworkable, emotionally dead, beyond salvage and
has broken down irretrievably.
As here the petitioner finds that the relationship appears to have been deteriorated & strained.
Moreover she is not willing to lead life further with him @ any cause because the respondent
indulged in adultery with the servant Rama & made her pregnant. It shows clearly that the
respondent held liable for the breach of trust & it is the basic ground for irretrievable
breakdown.
Sirajmohamedkhan Janmohemedkhan V Hafizunnisa Yasinkhan 5
In this case it again reiterated that with the advent of social conceptions this feature has
obtained legislature revocation to establish legal cruelty it is not necessary that physical
violence should be used. If there is continuous ill treatment, cessation of marital inter course
& an assertion on the part of the husband that the wife is unchaste are all factors which lead
to mental or legal cruelty.
The adultery or extra marital relationship is also considered to be the mental cruelty & for
this the respondent is held liable. Therefore the presence of irretrievable breakdown of
marriage is proved.
Ramesh Dudani V Ramesh K Dudani6
In this case the Hon’ble court stated that the concept of cruelty can be blended with
irretrievable break down of marriage & the marriage can be dissolved.
Here according to the gist the act of the respondent has been cleared that he was indulged in
the illicit relationship with the domestic servant rama & made her pregnant. This resulting her
into mental cruelty & their breakdown of marriage is irretrievable in nature.
Fault Theory V Break down theory

4
1(2019) 9 SCC 409
5
1981 4 SCC 250
6
I(2000) DMC 692 SC
13 | P a g e M E M O R I A L O N B E H A L F O F A P P E L L A T E / P E T I T I O N E R
The SMA governing the marriage between individuals regardless of religious persuasion, are
premised on the fault or matrimonial offence theory for the purpose of divorce. It means if
any person committed adultery or has treated the person cruelty or deserted for more than two
years. Thus the person has been @ fault in some way. In addition, the wife can ask for a
divorce on grounds that after marriage her husband was guilty of rape, sodomy or bestiality.
Therefore divorce can only be sought by the hurt or aggrieved party who has been at the
receiving end of the other party offending conduct.

M.S. V S.D7

In this case it has been clearly stated that if the marriage has totally dead, nothing shall be
done, nothing shall be gained from keeping the either parties tied together then it is said to be
as a irretrievable break down of Marriage.

According to the 2010 MLB amendments with SMA, 1954 states the ground for divorce of
irretrievable breakdown of marriage U/S 28-A as enumerates as follows:-

1. A Petition for the dissolution of marriage by a decree of divorce may be presented to

the DC by either party to a marriage [whether solemnized before or after the
commencement of the Marriage Laws (Amendment) Act, 2010] on the ground that
the marriage has broken down irretrievably.
2. The Court hearing a petition referred to in sub section (1) shall not hold the marriage
to have broken down irretrievably unless it is satisfied that the parties to the marriage
have lived apart for a continuous period of not less than three Years immediately
preceding the presentation of the petition.
3. If the court is satisfied, on the evidence, as to the fact mentioned in sub-section (2),
then, unless it is satisfied on all the evidence that the marriage has not broken down
irretrievably, it shall, subject to the provisions of this Act, grant a decree of divorce.
4. In considering, for the purpose of sub-section (2), whether the period for which the
parties to a marriage have lived apart has been continuous, no account shall be taken
of any one period (not exceeding three months in all) during which the parties
resumed living with each other, but no other period during which the parties resumed
living with each other, but no other period during which the parties lived with each
other shall count as part of the period for which the parties to the marriage lived
apart.
5. For the purposes of sub-section (2) & (4), a husband & wife shall be treated as living
apart unless they are living with each other in the same household, & reference in
this section to the parties to a marriage living with each other shall be construed as
reference to their living with each other in the same hold.

From the aforesaid statement it has been clear that it is s irretrievable cause of damage in the
marital life & hence held liable.

7
2019 SCC Online Del 8234
14 | P a g e M E M O R I A L O N B E H A L F O F A P P E L L A T E / P E T I T I O N E R
Whether the petitioner shall claim the maintenance under DVA 2005 is valid or not?

It is humbly submitted before this Hon’ble Court that the petitioner claim under DVA, 2005
is valid as she was cheated by the husband by committing adultery U/S 498-A of IPC 1860
with the person Rama & made her pregnant within a year. It also included that the respondent
is held liable for the offence U/S 406 of IPC 1860 said to be as a criminal breach of trust.
From the aforesaid it has been clear that the respondent is held liable for the cause of cruelty
& mental agony. Hence the maintenance claim is valid.

RAJNESH V NEHA8

In this case the Hon’ble Court held that the legislative mandate envisages grant of
maintenance under various statutes. Therefore there is no bar to wife to seek maintenance
both under the DV Act & Sec.125 of Cr.P.C 1973.
According to this gist the SC laid down certain guidelines in order to recognize the dire need
to have uniformity, consistency, procedural fairness & time efficiency in disposal of
maintenance application. These guidelines are framed for certain aspects pertaining to
payment of maintenance in matrimonial disputes.
 Issue of overlapping Jurisdiction
 Payment of Interim Maintenance
 Criteria for determining the quantum of maintenance
 Date from which maintenance is to be awarded
 Enforcement/ Execution of orders of maintenance

Therefore in order to settle the law on overlapping jurisdiction, & to avoid conflicting orders
being passed in different proceedings, the SC has passed the following directions:
 Where successive claims for maintenance are made by a party under different statues,
the relevant court could consider an adjustment or set-off, of the amount awarded in

8
(2021) 2 SCC 324
15 | P a g e M E M O R I A L O N B E H A L F O F A P P E L L A T E / P E T I T I O N E R
 the previous proceedings, while determining whether any further amount is to be
awarded in the subsequent proceeding;
 The applicants have to mandatorily disclose all the previous proceedings and the
orders passed therein, in any subsequent proceeding;
 If the order passed in the previous proceeding requires any modification or variation,
the party would be required to move the concerned court in the previous proceeding.

Here the petitioner filed for the maintenance under the DVA, 2005 in the HC of Delhi is said
to be as valid reason & the petitioner is entitled to receive maintenance from this court as the
respondent caused her into mental cruelty.
From the aforesaid case here the petitioner seeking maintenance under DVA, 2005 is valid.
Moreover there is no overlapping of jurisdiction in the maintenance of DVA, 2005.

KASTURI V SUBHAS9
In this case the court clearly held that the domestic violence means not only physical abuse &
it also incline endanger mental stress. Therefore here the wife amount to emotional abuse,
endangering mental & physical well-being which is said to be another form of domestic
violence. Thus the guilty of petitioner for domestic violence has been proved.
In this gist also the respondent through adultery made petitioner into the mental stress & this
amounts to emotional abuse. For which the respondent has been held liable to pay
maintenance under the DVA Act 2005.
Moreover the petitioner’s right on getting alimony can’t be denied on the ground that she is
earning & also the respondent held liable to pay maintenance as he causes the mental stress
through adultery.
BADSHAH V URMILA BADSHAH GODSE & ANR10
It reiterated in this case that the right to demand maintenance is a statutory right in India & it
cannot be taken away by the agreement contrary. Therefore the jurisdiction of granting
maintenance states that “maintenance is provided with the goal of strengthening the poor &
attaining social justice, or individual equality & dignity. It encapsulates societal ideals”. Thus
maintenance might be granted throughout the course of the proceedings (maintenance
pendent lite) or after the completion of the proceeding (maintenance final), that is permanent
maintenance. The right to claim maintenance is available to wives, children & parents.
From the above said case it has been clear that the petitioner has a right to demand
maintenance & to get claim.

9
MANU/KA/1902/2017
10
2013
16 | P a g e M E M O R I A L O N B E H A L F O F A P P E L L A T E / P E T I T I O N E R
Therefore it has been clearly stated that the petitioner has right to claim maintenance under
DVA, 2005.
Whether there is a presence of causing mental cruelty or not?
It is humbly submitted before this Hon’ble court that the act is causing metal cruelty to the
Petitioner.
“Cruelty” means any willful conduct which is of such a nature as is likely to drive the women
to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or
physical) of the women or harassment of the women where such harassment is with a view to
coercing her or any person related to her to meet any unlawful demand for any property or
valuable security or is on account of failure by her or any person related to her to meet such
demand
In this fact the respondent indulged in illicit relationship with the servant & committed
mental cruelty to petitioner which has been proved through the servant rama pregnancy as it
acts as a evidence U/S 113-B as nature of presumption & thus respondent is held liable.
Sivansankaran V Sathimeenal11
In this case it has been clearly stated that the presence of cruelty as per Sec.13 (1) (i-a) has
been proved then the decree of divorce shall be granted on the basis of irretrievable break
down of marriage.
The presence of cruelty has been proved here as the adulteration is considered to be a cruelty
as it causes mental stress to the affected person & the person one who makes such cruelty
must pay maintenance for such acts.
Shoba Rani V Madhukar Reddl12
In this case it has been held that the respondent made cruelty against her for dowry &
assaulted her both physically & mentally. She sought for divorce the Court granted her
divorce with maintenance.

The aforesaid case also stressed the same as one who assaulted her wife either physically or
mentally then it is said to be the cruelty & the affected person shall get the complete relief
U/A 142 of the Constitution in order to get “Complete justice”. Here the respondent
committed such offence against the petitioner & held liable to pay maintenance for such
mental agony.

11
2021 SCC Online SC 702
12
1998 1 SCC 105
17 | P a g e M E M O R I A L O N B E H A L F O F A P P E L L A T E / P E T I T I O N E R
 Samer Ghosh V Jaya Ghosh13
In this case it is clearly stated that cruelty cannot remain static it is bound to change passage
of time, impact of modern culture through print & electronic media etc… Therefore the
adultery is said to be as cruelty.
From the above statement it has been clear that there is no method or way to identify cruelty.
Therefore from the aforesaid statements the respondent committed cruelty against the
petitioner & for that cause he is held liable to the maintenance. It is said to be as a
irretrievable breakdown of marriage.
Maya Devi v. Jagdish Prasad 14
Cruelty which is a ground for dissolution of marriage may be defined as willful 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. The question of
mental cruelty has to be considered in the light of the norms of marital ties of the particular
society, to which the parties belong, their social values, status, environment in which they
live. Cruelty need not be physical. If from the conduct of the spouse it is established or an
inference can be legitimately drawn that the treatment of the spouse is such that it causes
apprehension in the mind of the other spouse, about his or her mental welfare then this
conduct amounts to cruelty.
Thus the cruelty act of the respondent against the petitioner is proved.

“Justitia nec differenda, nec neganda est”

13
on 26 March, 2007
14
AIR 2007 SC 1426
18 | P a g e M E M O R I A L O N B E H A L F O F A P P E L L A T E / P E T I T I O N E R
 PRAYER

In light of the issues raised, arguments advanced and authorities cited, the counsel for the
petitioner humbly prays that the Hon’ble Court be pleased to adjudge, hold and declare:

1. THE DIVORCE PETITION FILED U/A 142 OF THE INDIAN CONSTITUTION 1950
ON IRRETRIEVABLE BREAKDOWN OF MARRIAGE IS MAINTAINABLE AS IT IS
COUPLED WITH PLENARY AND RESIDUARY POWERS TO DO COMPLETE
JUSTICE IN THE MATTER BEFORE THIS COURT.

2. IT IS SAID TO BE AS THE IRRETRIEVABLE BREAK DOWN OF MARRIAGE AS

THE RESPONDENT INDULGED IN EXTRA MARITAL AFFAIRS WHICH CAUSES
IMMENSE MENTAL STRESS, AGONY & IT IS CONSIDERED TO BE THE GUILTY
OF CRUELTY. HENCE THE OFFENCE OF CRUELTY IS PROVED AS THE
MARRIAGE IS IRRETRIEVABLE BREAK DOWN.

3. THE PETITIONER SHALL CLAIM MAINTENANCE UNDER DVA, 2005 AS THE

RESPONDENT INDULGED IN ADULTERY & CRIMINAL BREACH OF TRUST.

4. THAT THERE IS A PRESENCE OF CRUELTY OFFENCE AGAINST THE

PETITIONER & THE RESPONDENT IS HELD LIABLE FOR THE ALLEGED
OFFENCES.

And any relief that the honorable court may be pleased to grant in the interest of public,
particular group of people, render justice with equity and good conscience. All of which is
humbly submitted.

Respectfully submitted

(Counsel for the Petitioner)

19 | P a g e M E M O R I A L O N B E H A L F O F A P P E L L A T E / P E T I T I O N E R