FAMILY LAW - I

IN THE HON’BLE SUPREME COURT OF INDIA

Kanchan Devi
(Appellant)

Vs.

Pramod Mittal
(Respondent)

CASE CONCERNING
Spouse maintenance

Divorce on the ground of irretrievable breakdown of marriage

MEMORANDUM BY
Hemant Verma

Roll-58, Semester- II

COUNCIL ON THE BEHALF OF APPELLANT

Kanchan Devi

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TABLE OF CONTENTS

List of Abbreviations III

Index of Authorities IV

Cases

Statues

Websites

Statement of Jurisdiction V

Statement of Facts 1

Issues Raised 3

Summary of Arguments 4

Written Submissions 5

Prayer for Relief 9

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LIST OF ABBREVATIONS

i.e. That Is

AIR All India Reporter

WB West Bengal

Co. Company

Vs. Versus

Bom Bombay

CrPC Code of Criminal Procedure

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INDEX OF AUTHORITIES

CASE LAW

Kiran vs. Sharad Dutt (2000) 10 SCC 243

Swati Verma v. Rajan Verma & Others (2004) 1 SCC 123

STATUTES

The Code Of Criminal Procedure 1973

The Hindu Adoption and Maintenance Act 1956

WEBSITES

1. www.manupatra.com
2. www.login.westlawindia.com
3. www.scconline.co.in
4. www.heinonline.org

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STATEMENT OF JURISDICTION

The Appellant humbly submit before the Supreme Court the memorandum for the appellant
in the case of Kanchan Devi Vs Pramod Mittal under the article 132 of the Constitution of
India.

The present memorandum sets forth the facts, contentions and arguments in the present
case.

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STATEMENT OF FACTS

1. The marriage between the parties was solemnised on 18.4.73.

2. According to the appellant she was thrown out of the matrimonial home, after she
gave birth to four female children one after the other which annoyed her in-laws.
Thereafter the respondent husband neglected and refused to maintain her which
compelled her to file an application for maintenance under Section 125 CrPC.
3. The trial court allowed the application and granted her Rs.500/- p.m. as maintenance.
4. In appeal, the order of maintenance was maintained but the amount was reduced to
Rs.440/ per month.
5. The respondent moved the High Court in revision and on 6.10.82 the High Court
remanded the matter for rehearing. During the pendency of the application in the trial
court, it was dismissed in default and on appellant's moving an application for
restoration, the same was restored by the trial court.
6. A revision petition filed by the respondent against the order of restoration was
dismissed. Subsequently, the High Court also dismissed an application filed under
Section 482 CrPC. by the husband on 16.1.1984.
7. While the matters rested thus it transpires from the record that the respondent husband
had also filed a petition for divorce and obtained an ex-parte decree of divorce on
22.10.80.
8. On a petition filed by the appellant, the ex-parte decree of divorce was set aside on
9.9.83 and subsequently the petition for divorce filed by the respondent was finally
dismissed on 13.10.83. There is variance between the parties as to whether the matter
is pending in appeal at the instance of the husband.
9. No payment, in the case under Section 125 CrPC was ever made to the appellant
thereby compelling the wife to seek execution of the order.
10. The respondent thereupon brought the appellant back to his house. It appears that a
compromise was then arrived at between the parties with regard to the order of
maintenance made under Section 125 CrPC and as Per the terms of the compromise,
the appellant agreed to accept Rs.200/- per month as maintenance arrears with effect
from 10.2.1984 as against Rs.440/- p.m. awarded in her favour.
11. The appellant alleges that thereafter she was once again thrown out of the matrimonial
home by the respondent husband after he had made her to sign the compromise deed.

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12. She filed an application under Section 127 CrPC on 10.12.84. The application was
dismissed in default on 11.8.86 but on a petition filed by the appellant it was restored
by the trial court on 29.8.86.
13. A revision filed by the respondent before the Sessions Judge was dismissed on 9.4.87.
An interim order came to be made by the trial court on 24.4.87 enhancing the
maintenance amount by Rs.150/- per month.
14. The appellant moved the High Court through a petition under Section 482 CrPC. and
on 4.11.87 the High Court quashed the order of restoration, the order of the Sessions
Judge dismissing the revision filed by the respondent as also the order of
enhancement of maintenance granted in favour of the appellant.

Aggrieved by the decision of the Hon’ble High Court the appellant has moved to the Hon’ble
Supreme Court.

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ISSUES RAISED

The following questions are presented before the Hon’ble Court in the instant matter:

1. Whether the judgment of The High Court quashing the order of restoration and also the
order of enhancement of maintenance of the Trial Court justified or not?
2. Whether the marriage between the parties has irretrievably broken down or not?

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SUMMARY OF ARGUMENTS

1. No, the judgment of the High Court quashing the order of the Trial Court was not
justified.
2. Yes, there are sufficient grounds to show that the marriage has broken down beyond
repair.

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WRITTEN SUBMISSION

CONTENTION NO 1:-

The High Court in its judgment dated 4.11.87, under article 482 of Cr. PC, had quashed the
relief presented to the appellant by Trial Court on 24.4.87. The said judgment of the High
Court was not justified at all. It is very important not to forget the fact that the appellant, Smt
Kanchan Devi, was twice thrown out of her matrimonial home. The first instance took place
when she gave birth to four daughters one after another; the respondent’s family threw her
out of the home after being annoyed. Such an act on the part of the respondent can never be
justified for the Constitution of India strives for providing equality to both the genders. Even
medical science has proved that the gender of the child is dependent on the male partner for
he carries both the X and Y while the mother caries only the X chromosome.

Not delving too into the medical science of birth and focusing on the case in hand, the act of
throwing the wife out of home is not justified and so under article 125 of Cr. PC the appellant
has a right to claim maintenance for she is unable to take care and maintain of herself.

The second incidence took place when, after being awarded maintenance of 440 Rs. per
month by the Trial Court, the Respondent bought the Appellant back to the matrimonial
home. A compromise deed was made then limiting the maintenance to 200 per month and the
appellant was then again thrown out of the home. This act raises suspicion as to the validity
of the compromise deed and it can be logically deduced that the appellant was made to sign
the deed under fraud.

All these instances present the right of maintenance to the appellant under section 125 of Cr.
PC.

Section 125 in The Code Of Criminal Procedure, 1973 provides:

125. Order for maintenance of wives, children and parents.

1. If any person having sufficient means neglects or refuses to maintain-

a) his wife, unable to maintain herself, or
b) his legitimate or illegitimate minor child, whether married or not, unable to maintain
itself, or
c) his legitimate or illegitimate child (not being a married daughter) who has attained
majority, where such child is, by reason of any physical or mental abnormality or
injury unable to maintain itself, or
d) his father or mother, unable to maintain himself or herself, a Magistrate of the first
class may, upon proof of such neglect or refusal, order such person to make a monthly
allowance for the maintenance of his wife or such child, father or mother, at such

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monthly rate not exceeding five hundred rupees in the whole, as such Magistrate
thinks fit, and to pay the same to such person as the Magistrate may from time to time
direct: Provided that the Magistrate may order the father of a minor female child
referred to in clause (b) to make such allowance, until she attains her majority, if the
Magistrate is satisfied that the husband of such minor female child, if married, is not
possessed of sufficient means. Explanation.- For the purposes of this Chapter,-
a) " minor" means a person who, under the provisions of the Indian Majority
Act, 1875 (9 of 1875 ); is deemed not to have attained his majority;
b) “Wife" includes a woman who has been divorced by, or has obtained a
divorce from, her husband and has not remarried.
2. Such allowance shall be payable from the date of the order, or, if so ordered, from the
date of the application for maintenance.
3. If any person so ordered fails without sufficient cause to comply with the order, any such
Magistrate may, for every breach of the order, issue a warrant for levying the amount
due in the manner provided for levying fines, and may sentence such person, for the
whole or any part of each month' s allowances remaining unpaid after the execution of
the warrant, to imprisonment for a term which may extend to one month or until
payment if sooner made: Provided that no warrant shall be issued for the recovery of any
amount due under this section unless application be made to the Court to levy such
amount within a period of one year from the date on which it became due: Provided
further that if such person offers to maintain his wife on condition of her living with him,
and she refuses to live with him, such
4. Magistrate may consider any grounds of refusal stated by her, and may make an order
under this section notwithstanding such offer, if he is satisfied that there is just ground
for so doing
5. No Wife shall be entitled to receive an allowance from her husband under this section if
she is living in adultery, or if, without any sufficient reason, she refuses to live with her
husband, or if they are living separately by mutual consent.
6. On proof that any wife in whose favour an order has been made under this section is
living in adultery, or that without sufficient reason she refuses to live with her husband,
or that they are living separately by mutual consent, the Magistrate shall cancel the
order.

Even according to section 18 of Hindu adoption and maintenance act 1956, the appellant is
entitled to seek maintenance.

Section 18:

18. Maintenance of wife-

1. Subject to the provisions of this section, a Hindu wife, whether married before or after
the commencement of this Act, shall be entitled to be maintained by her husband
during her lifetime.
2. A Hindu wife shall be entitled to live separately from her husband without forfeiting
her claim to maintenance,-

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a) if he is guilty of desertion, that is to say, of abandoning her without

reasonable cause and without her consent or against her wish, or of willfully
neglecting her;
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;
c) if he is suffering from a virulent form of leprosy;
d) if he has any other wife living;
e) if he keeps a concubine in the same house in which his wife is living or
habitually resides with a concubine elsewhere;
f) if he has ceased to be a Hindu by conversion to another religion;
g) If there is any other cause justifying her living separately.
3. A Hindu wife shall not be entitled to separate residence and maintenance from her
husband if she is unchaste or ceases to be a Hindu by conversion to another religion.

Now it is clear that the wife is entitled to maintenance as per the procedures of section 125
of Cr. PC and Section 18 of Hindu Adoption and Maintenance act 1956 she has committed
no act whatsoever that disentitle her of this right.

The Hon’ble High Court in its judgment had quashed the order of maintenance as well as the
order of enhancement of maintenance provided to the appellant by the lower courts. The
facts nowhere hint that the appellant wife had been living in adultery or that they were living
separate by mutual consent or that she got converted to any other religion.

Hence there appears no valid ground for quashing the order of maintenance awarded to the
appellant.

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CONTENTION NO 2:

The marriage between the parties can be safely said to have irretrievably broken down. The
act of throwing the appellant out of the matrimonial home, irrespective of whose fault it was,
created a rift between the parties. The second incident removed all, if any, intentions the
appellant had to continue the marriage. Even the respondent’s act of throwing the wife out of
the home and the fact that the respondent had filed a petition for divorce on 22.10.80 shows
that he also has no intention to continue the marriage. It is also worth noting that the parties
have been living separately for more than a decade.

So there remains no doubt that the essence of marriage, the mutual love and affection, is lost
and marriage between the parties has come to a point where it would be cruelty to force the
parties to continue this hollowed relationship.

Although irretrievable breakdown of marriage in itself is no ground for divorce yet the
counsel requests the court, in light of above facts that the Hon’ble court exercising its powers
under article 142 of Constitution of India award a decree of divorce.

The Hon’ble supreme court had in Kiran vs. Sharad Dutt (2000) 10 SCC 243 and in Swati
Verma v. Rajan Verma & Others (2004) 1 SCC 123 had awarded a divorce decree to the
parties under article 142 where it was satisfied that the marriage had irretrievably broken
down.

My counsel has also decided to make a statement. In her own words:

“I have no objection to a decree of divorce being made because my marriage with the
respondent has irretrievably broken down provided, however, the respondent pays a sum of
Rs. 60000/- (rupees sixty thousand) within twelve weeks from today. My agreement to
divorce by mutual consent is subject to that condition and in the event that amount is not
paid, I shall not be bound by this statement, as it is without prejudice to my other rights in
the case. On the amount being paid, the dispute arising out of the petition under Section
125 Cr. PC shall also stand settled.”

Therefore it is humbly requested that the court awards a divorce decree to the parties.

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PRAYER FOR RELIEF

Wherefore, in the lights of facts of the case, issues raised, arguments advanced and
authorities cited, the council pleads this HON’BLE court to:

1. To direct the respondent to pay a sum of 60000 Rs. to the appellant.

2. To grant a divorce decree to the parties.

The Court may also be pleased to pass any other order, which the Court may deem fit in light
of justice, equity and good conscience.

All of which is respectfully submitted.

Place: Delhi Hemant Verma

Date: 09th April 2015 (Council on the behalf of the appellant)