Z

CHANDIGARH UNIVERSITY, UILS

TABLE OF CONTENTS
INTRA DEPARTMENT MOOT COURT COMPETIITION, 2023
INDEX OF AUTHORITIES....................................................................................................................................3
4TH April- 5TH April 2023
STATUTES…………………………………………………………………………………………………………3

OTHER AUTHORITIES………………………………………………………………………………………….4

STATEMENT OF JURISDICTION………………………………………………………………………………4

STATEMNT OF FACTS………………………………………………………………………………………….5

STATEMENT OF CHARGES……………………………………………………………………………………

SUMMARY OF ARGUMENTS...............................................................................................................................5

STATEMENT OF ISSUES......................................................................................................................................5

ARGUMENTS ADVANCED....................................................................................................................................6

I. The Petitioner is entitled to a decree of punishment......................................................................................10

PRAYER FOR RELIEF.........................................................................................................................................24

INDEX OF AUTHORITIES

Cases

State Of West Bengal & Ors. Etc vs Sampat Lal & Ors. Etc on 4 December, 1984 ........................................................ 8

State Of Gujarat vs Dharmistaben Narendrasinh Rana on 17 June, 2000 .................................................................... 15

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Sukhdarshan Kumar And Ors. vs State of Rajasthan on 3 August, 2001 ....................................................................... 8

FL – 01

G. Nageshwar Rao vs Director General of Police, ... on 30 June, 1997.......................................................................... 7

2nd SURANA &
Rajiv Narula vs State on 11 August, 2009 ....................................................................................................................
14 MOOT COURT COMPETITION 2023

Sr. Sephy vs Union Of India onA1RMY , ,

January, 2009...........................................................................................................
17

Ramesh Chander vs State Of Haryana on 9 December, 1994 .......................................................................................

8

State Of Gujarat vs Dharmisthaben Narendrasinh Rana on 17 June

2000…......................................................................................................................................................................................................9, 15

Rajeshbhai@ Rajubhai @ Bav ... vs State of Gujarat on 7 October, 2022 .................................................................... 11

IN THE SESSION COURT OF AMBALA , HARYANA
Sharada W/O Babaugouda
CRIMINAL Patil PETITIONvs The State UNDER of Karnataka
SECTION on30219 July,
OF IPC, 1860
2022............................................................................................................................................................................ 14

Tapati Paul vs The State of Jharkhand on 27 April,

2018............................................................................................................................................................................ 16

CIVIL PETITION NO. / 2023

IN THE MATTER OF:

Statutes
Section 302 of IPC,1860
STATE OF HARYANA
Section 306 of IPC,1860
…….RESPONDENT
Section 120B of IPC ,1860
V.
Section 174 of CRPC, 1973
MRS. W
OTHER AUTHORITIES
……PETITIONER
https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688&orderno=127

https://www.lawctopus.com/
https://indiankanoon.org/
UPON SUBMISSION TO THE DISTICT OF AMBALA, HARYANA
COURT OF
-MEMO RIAL ON
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BEHALF OF THE THE RESPONDENT
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CHANDIGARH UNIVERSITY, UILS INTRA DEPARTMENT MOOT COURT COMPETIITION, 2023

https://www.law.gmu.edu/

https://services.ecourts.gov.in/

https://www.scconline.com/

Statement of Jurisdiction
The Hon’ble Court has jurisdiction to try the instant matter under Section 302 read with Section 120B of Indian
penal code, 1860.

Section 302 IPC

Punishment for murder. Whoever commits murder shall be punished with death or 1 [imprisonment for life], and
shall also be liable to fine.
Section 120B IPC

Punishment of criminal conspiracy. Whoever is a party to a criminal conspiracy other than a criminal conspiracy to
commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not
exceeding six months, or with fine or with both.

STATEMENT OF FACTS
Background

There was a husband and wife who were strained from their marriage and were residing in separate rooms in the
same house (statement given by deceased’s brother)

On 21. 04. 1997, deceased went to Ambala Cantt. and told B that he would go to his Panchkula residence and will
come back with his luggage as he was very much fed up and frightened.

Circumstances Leading to The Scenario

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On 01.05. 1997 he has committed suicide. He was hanging by the neck and his feet were touching the floor, blood
was collected near the body and the foul smell was coming in the second floor of the house.

When the suicide was committed the appellant and her children were on the first floor.

Current Scenario

Now FIR was registered on the basis of complaint made by brother of the deceased and inquest report was
prepared by ASI, site sketch was prepared, Photographs were taken by P (PW-11), dead body was sent for post
mortem. Thereafter, investigating officer recorded the statement of witnesses, visited the crime spot.

STATEMENT OF CHARGES

Charge 1 appellate was charge sheeted for the offence under section 302 IPC

Charge 2 appellants brother was charged with section 302 read with 120B of IPC.

SUMMARY OF ARGUMENTS

I. The Appellant is entitled to punish under section 302 of IPC.

It is humbly submitted before the Learned Court that the Petitioner is entitled to a decree of Punishment

as provided under section 302 of Indian penal code, 1860.

11. They have to be proved guilty for murdering H.

Appellant and appellant’s brother both have to be proved guilty for murdering their husband and brother
respectively as it was clear in the post mortem report death was caused due to asphyxia (deficient supply of
oxygen in the body due to strangulation).

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STATEMENT OF ISSUES

I.

WHETHER THE APPEALANT IS ENTITLED TO A DECREE OF PUNISHMENT?

II.

WHETHER IT IS A MURDER OR SUICIDE?

III.

WHETHER W AND B ARE GUILTY UNDER SECTION 302 OF IPC?

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ARGUMENTS ADVANCED

I. THE PETITIONER IS ENTITLED TO A DECREE OF PUNISHMENT.

It is humbly submitted that the grounds provided under section 302 of IPC are satisfied for the Petitioner to

seek for a decree of punishment.

A. The punishment petition is maintainable.

1. It is humbly submitted that the present petition is maintainable before the Learned Court. The parties W

[“Petitioner”] and State of Haryana [“Respondent”],

B. Desertion and Cruelty as grounds for divorce have been adequately satisfied.

4. Section 13(1),provides that any marriage, solemnized under HMA, can be dissolved by a decree of

divorce if any of the grounds mentioned in the provision is fulfilled by either spouse. To that effect, the

petitioner submits that 2 pertinent grounds of: (a) desertion for a continuous period of not less than two

year and (b) cruelty have been fulfilled by the respondent in the present case.1

a. Desertion as a ground for divorce is fulfilled.

5. Section 13(1)(i-b) of HMA elaborates the grounds of desertion for divorce as an intentional and

permanent abandonment of one spouse by the other without consent and reasonable cause. 2 It also
3
includes total repudiation of marital duties and obligations. The desertion of the spouse by the other

1 Hindu Marriage Act, 1955, Section 13.

2 Hindu Marriage Act 1955 Section 13(1) (i-b).
3 Savitri Pandey v. Prem Chandra Pandey, AIR 2002 SC 59(India).
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party to the marriage without reasonable cause and without the consent or against the wish of such party. 4

Desertion includes the willful neglect of marital duties of one of the spouses. 5 Willful neglect constitutes

as a component of desertion that must be satisfied to grant a decree of divorce. 6 It is the refusal to cohabit

or total neglect to perform marital duties constitute willful neglect. 7

6. The Hon’ble Supreme Court in Bipin Chandra v. Prabhavati has construed the requirement for the

provision that the conditions necessary to be proved for the ground of desertion are absence of consent,

intention to animus deserendi, i.e., the intention to bring cohabitation to an end and no intention to

animus reverend, i.e., the respondent from their conduct must express their intention to discontinue

cohabitation11.

7. In the present case, the respondent has deserted the applicant. After the child was born, the Respondent

deserted her spouse. Both the parties were financially sound as the Petitioner was a software engineer in

Silicon Valley and the Respondent was a resident at a local hospital. 12 They resided in India for the first

few months while searching for a potential surrogate mother. However, when the child was born, the

respondent conveniently abandoned not only her husband but also her pre- mature child.

8. Further, there is also an absence of any reasonable cause for such neglect and ergo it amounts to
desertion.

Her immediate leave gives rise to her intentions to bring cohabitation to an end, as the respondent is aware

that the child cannot travel for a few more months and therefore, it is convenient to leave behind her family.

4 Adhyatma Bhattar Alwar Vs. Adhyatma Bhattar Sri Devi, 2002 1 SCC 308: (2002) (India).

5 Id.
6 Hindu Marriage Act, 1955 Section 13(1)(vi)(explanation), Geeta Jagdish Mangtani v. Jagdish Mangtani, (2005) 8 SCC 177:AIR 2005
SC 3508.
7 K.V Lakshmi v. K.P Sitarama Krishna, 1986 SCC AP 29: (1986) 2 AP 29:(1986) 2AP LJ 502 AP
DB(India). 11 Bipin Chandrasinghbhai Shah v. Prabhavati, 1956 SCC AIR 1957(India). 12 Proposition para 7
and 9.

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9. Thus, respondent has voluntarily deserted the petitioner husband and her child without any reasonable

justification. Such act fulfills the ground of desertion as provided under section 13 HMA.

b. Cruelty as grounds for divorce is fulfilled.

It is humbly submitted that the respondent has committed ‘cruelty’8 on the petitioner.

10. Cruelty is a voluntary and willful conduct which endangers the life, limb or health of the victim, so as to

give a reasonable apprehension of such a danger that it becomes difficult to live with the spouse. 9 HMA

specifies the dissolution of marriage on this ground.10

11. The term ‘cruelty’ has been interpreted to include both physical cruelty, which endangers the limbs of the

individual as well as mental cruelty, which occurs when either party causes mental pain, agony or

suffering of such a magnitude that it severs the marital bond between the parties.11

12. It is humbly submitted that, while determining mental cruelty, the environment, status and background
12
must be kept in mind. The mental agony that is inflicted upon the party must be so severe, that it
13
becomes extremely difficult for the parties to co-habit. Mental cruelty can be intentional or

unintentional, it must be conducted to an extent that it becomes very over-bearing on the individual to

continue the relationship.14

13. It is further submitted that the intention of the party conducting the cruelty is not essential. Unintentional

acts can also amount to cruelty.15 For the satisfaction of mental cruelty, there is a necessity for persistency

of conduct. There must be repeated instances that hamper the continuation of the relationship. 16

8 Section 13 (ia)
9 N.G Dastane v. S Dastane(1975)2 SCC 326, AIR 1975.
10 The Hindu Marriage Act, 1955 Section 13(1) (ia).
11 Dr. Paras Diwan:Law of Marriage and Divorce, 7th edition, Fault grounds of Divorce.
12 N.G Dastane v. S Dastane, (1975)2 SCC 326, AIR 1975.
13 V. Bhagat v. D. Bhagat, 1994 SCC (1) 337(India).
14 Gollins v. Gollins, 1964 SCC A.C 644(Canada).
15 Jameison v. Jameison, 1952 AC 525:(1952) 1 All ER 875(HL) (United Kingdom).
16 Halberstadter, Sanford I. “Mental Cruelty as a Ground for Divorce.” Duke Bar Journal, vol. 4, no. 2, 1954, pp. 85–104. JSTOR,
www.jstor.org/stable/1370840. Accessed 26 Mar. 2021.
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14. In the present case, the respondent on several occasions made it very cumbersome for the petitioner to

coexist harmoniously. For instance, when the couple resided in India, the respondent wife neglected her

household responsibilities to pursue her education and the Petitioner’s family did not object to this. 17

However, the Respondent continued to neglect her household responsibilities and prioritised her

education.23 This gravely disappointed the family and also led frequent heated arguments between the

couple that caused mental agony to the petitioner.

15. Moreover, when the couple shifted to the U.S, the Petitioner was not in a financial position to afford the

fee of Respondent’s course to be a Doctor. This further caused more mental strain.18

16. Additionally, in such situation of financial distress, the Respondent also exerted immense pressure on the

petitioner for a child they were new to the United States and were not in a financial position to support a

child.25 This continuous pressure from his wife only added to the mental agony he was facing. Soon the

Respondent succumbed to this pressure and consented to having a child. The means to achieving this end

proved very arduous to the couple as they had to resort to surrogacy. 19 They requested their relatives to

bear their child but they declined the proposal. But when they found a surrogate mother[“Priya”], who

gave birth to their child in 2014, the respondent very conveniently abandoned the petitioner and her child,

who was in critical condition, to resume her job in US.20

17. Therefore, these incidents only exacerbated the mental agony faced by the Petitioner. When the

Respondent returned form the US there were only quarrels and arguments between the couple, and this
17 Proposition para
4. 23 Proposition para
5.
18 Proposition para
8. 25 Proposition para
9
19 Proposition para 12.
20 Proposition para 13 and 15.

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persistent tension snowballed the mental agony and clearly amounts to cruelty as ground for seeking

divorce.

C. Irretrievable breakdown of Marriage

18. It is humbly submitted that the infliction of cruelty combined with desertion, by the respondent, has

caused the relationship shared between the parties to have been broken down irretrievably.2122

19. Irretrievable breakdown of marriage is not a ground for seeking divorce but it has been propounded by

several judgements of the Hon’ble Supreme Court and was also recommended to be included as a ground

for granting a decree of divorce in the 71st Law Commission Report,1978.29 The Report enumerated that

the ground for divorce that currently persists results in injustice to those parties who are in a situation

where the fault is of such nature that that parties involved in the marriage do not want to divulge it, yet
23
there has arisen a situation in which marital obligations cannot be performed. In such situations as these

marriages may have an attractive external appearance but the reality could be different. In such situations

there is no utility in maintaining the marriage, when the emotional bondage has disappeared. 24

20. In T.N Narayanaswamy v. N Kaleeswari, the decree was dismissed by the Family Court as the grounds of

divorce viz. cruelty and desertion were not satisfied. When an appeal was made to the High Court, it not

only granted the decree on the grounds of irretrievable breakdown, under the parameter of cruelty, but

also propounded that “Marriage has become a mirage and nothing would serve by the continuance of the

nuptial relationship”.32

21 KUSUM AND POONAM PRADHAN SAXENA,’FAMILY LAW’[ Chapter Matrimonial Reliefs, 3.63].
22 st report of Law Commission, ‘Irretrievable Breakdown of Marriage as a Ground for Divorce’, 1978.
23 Id.
24 KUMUD DESAI, ‘IRRETRIEVABLE BREAKDOWN OF MARRIAGE: A GROUND FOR DIVORCE’[11th Edition].
32
2009 SCC Mad 1728:(2009) 5LW 728(India).
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21. Also, when the parties have been living separately for considerably long time and leading a robotic

lifestyle for no tangible reason, this means that the marriage has been irretrievably broken down. 25

22. It is further humbly submitted that, the Hon’ble Supreme Court held that, where had been living

separately and litigating for long, the marriage has been irretrievably broken down. 26 Further it has also

held that irreconcilable differences between the spouses should not be treated the same as property

disputes. The

duty of law is to not break up homes but a house that is torn as under by constant bickering must be broken

up.35

23. It is additionally submitted that, when the gives priority to profession over her husband's freedom it points

unerringly at disharmony, diffusion and disintegration of marital unity, from which the Court can deduce

about irretrievable breaking of marriage.36

24. In the instant case, the parties post solemnization of their marriage, were very engrossed in their work and

seldom paid attention to each other. For instance, Anjali continued to pursue her education in the U.S and

worked to get a job as a doctor.37 The Petitioner also paid a lot of attention to his work which led him to

avail a lucrative job offer in Silicon Valley, California. Therefore, this routine followed by the parties

constitute a robotic lifestyle.

25. In the present case the petition was filed in the year 2015 and has been pending in the Court is law till

date (2021).38 The prolonged litigation spanning for over 6 years now and clearly not resulted in amends

between the couple.

25 Gopal Ramanathan v. Jayashree, 2008 SCC Mad 3 LW 864 (Mad)(India).

26 Rishikesh Sharma v. Saroj Sharma, 1997 SCC MP 166:(1997) 2 MP LJ 530(India).

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Therefore, the constant quarrels and bickering between the couple has exacerbated to an extent where their

marital ties are severely affected and this accounts for the irretrievable breakdown of marriage.

D. Respondent is not entitled to maintenance if a decree of divorce is granted.

26. It is humbly submitted that the Respondent is not entitled to maintenance under Section 25 of HMA, post

dissolution of marriage.39

27. Maintenance is an amount that the husband is required to pay the wife after a decree of divorce is

granted.27 According to Section 125 of Criminal Procedure Code 1973, maintenance must be paid to the

children and parents and wife who is unable to maintain herself. The term ‘wife’ in the provision includes

a woman who

35
Vinod Kumar Rai v. Manju Rai, 2006 SCC All 668:AIR 2006 All 327(India). 36
Jayachnadra v. Aneel Kaur,(2005) 2 SCC 22 (India).
37
Proposition para 9.
38
Clarification 12.
39
Hindu Marriage Act, 1955, Section 25.
has received divorce but has not remarried.28

28. It is humbly submitted that, The Hon’ble Supreme Court has held that a woman who is capable of being

financially sufficient to maintain herself, is not entitled to receive maintenance. 29

29. The Respondent has been working as a doctor in the U.S and also availed a citizenship of the same in

2010. The Respondent has been a doctor as a citizen of the U.S for over 15 years. This has allowed the

Respondent to accumulate the wealth required to maintain herself.

Hence, no maintenance must be granted to the Respondent, if a decree of divorce is granted.

27 RATANLAL AND DHIRAJLAL, CODE OF CRIMINAL PROCEDURE, 20th edition(Bharath Law House).
28 Section 125, Code of Criminal Procedure, 1973.
29 Kusum Bhatia v. Sagar Sethi MANU/SC/1675 2019.
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II. THE RESPONDENT IS NOT ENTITLED TO A DECREE OF RESTITUTION OF CONJUGAL RIGHTS.

30. It is humbly submitted that the Respondent is not entitled to a decree of restitution of conjugal rights

[“RCR”] on the grounds that [A] the Petitioner has reasonable excuse for withdrawal from the society of

the Respondent and [B] RCR violates the Petitioner’s fundamental rights. Under section 9 of HMA, it

states that,

“When either the husband or the wife has, without reasonable excuse, withdrawn from the society

of the other aggrieved party may apply, by petition to the district court, for restitution of conjugal

rights and the court, on being satisfied of the truth of the statements made in such petition and

that there is no legal ground why the application should not be granted, may decree restitution of

conjugal rights accordingly.”

31. The counsel humbly submits that the explanation stated under Section 9 of the Hindu Marriage Act,

1955, provides that the burden of proof for the existence of a reasonable excuse from withdrawing from

the Respondent’s society, is on the Petitioner. Such excuse must be just grave and weighty or grave and

convincing cause.30

A. The Petitioner has a reasonable excuse for withdrawal from the society.

32. It is humbly submitted before the Learned Court that one of the fundamental purposes of marriage is for

the spouses to live together and entitle them to the society and comfort of each other. 31 This is also known

30 K. Kanthimathi v. S. Parmeshwara Iyer, AIR 1974 Ker 124 (India); Shyamlal v. Saraswati, 1967 MP 204; Satya v. Ajaib, 1973 Raj 20
(India).
31 B. M. GANDHI, HINDU LAW 292 (4th ed. 2016).

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as “two in one” relationship of the other, wherein the husband and wife have both, a right and a duty

towards each other.32

33. In the case of Ganesan J. in Kanna v. Krishnaswami,33 it was observed that the expression “reasonable

excuse” in section 9 of the HMA cannot be reduced to a formula that fits in all the cases, but rather

deduces after taking int account the time and circumstances of each individual case. Reasonable excuse

cannot be formulated in a straight-jacket yardstick.47

34. A ground for any matrimonial cause is obviously a reasonable excuse 48. But “a reasonable excuse” need

not be equivalent to a ground for a matrimonial cause.34

35. It is humbly stated that the Punjab and Haryana High Court noted that a reasonable excuse is something

less than a justification and something more than a mere whim, a fad or a brain wave. 35 But in every case

the act, omission or conduct to amount to reasonable excuse must be something which is grave and

weighty, or grave and convincing.36

36. In this instant case, the Petitioner is not acting on a mere whim or fad, but has valid grounds, pertaining to

which, he has also filed for a divorce from the Respondent, as established under the previous arguments

advanced.

a. The Petitioner had to suffer Mental Cruelty.

32 Ela Dasu v. Ela Lachaman, (1990) 2 HLR 249 (Ori) (India); Sushil Kumar v. Prem Kumar, AIR 1976 Del 321 (India).
33 AIR 1972 Mad 247 (India); Nigam v. Nigam, 1971 All LJ 67 (India); Gurdeo Kaur v. Sarwan Singh, AIR 1959 Punj 162
(India). 47 Rita De Chowdury v. Shri Kalyan De Chowdhury, (2004) 1 HLR 14 (Cal DB) (India). 48 Peddigari Annapurnamma v.
Peddigari Appa Rao, AIR 1963 AP 312(India).
34 DR PARAS DIWAN: LAW OF MARRIAGE AND DIVORCE, 7th ed [Chapter V RESTITUTION OF CONJUGAL RIGHTS]
35 Sadhu Singh Balwant Singh v. Jagdish Kaur Sadhu Singh, AIR 1969 Punj 139 : 1968 Cur LJ 598: 70 Pun LR 712(India).
36 Shyamlal v. Saraswati Bai, AIR 1967 MP 204 : 1967 MPLJ 154: 1967 Jab LJ 302; Satya Devi v. Ajaib Singh, AIR 1973 Raj 20 : 1972
WLN 392: ILR (1972) 22 Raj 581(India).
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37. Mental cruelty can be intentional or unintentional, it must be conducted to an extent that it becomes very

over-bearing on the individual to continue the relationship. 37 In Ranjeet Kaur v. Surendra Singh Gill, it

was stated that mental cruelty would be a state of mind which may exist in the mind of the wronged

spouse, producing feelings of anguish or frustration at the existing state of matrimonial relation. 38

38. As established earlier, under the point of (I.B.) Cruelty in the issue of divorce, it is humbly submitted that

on more than one case, the Petitioner has had to suffer mental cruelty due to the Respondent. This has

made it impossible for the Petitioner in the instant case to continue with his relationship with the

Respondent.

b. Infeasible for the Petitioner to continue cohabiting with the Respondent.

39. It is humbly stated that, if from the facts and circumstances of the case and acts and conduct of the

petitioner it becomes evident that the couple cannot live in harmony and happiness, it would amount to a

reasonable excuse.39 Moreover, in the Parliamentary debates for the marriage provisions, J.B. Kriplani

said for RCR that, “This provision was physically undesirable, morally unwanted and aesthetically

disgusting.”55. It has been humbly established earlier that, the marriage between the parties has not been

one of the harmonious, fruitful and contented marriages, the frequent disagreements and fights are a

testament to that and it puts an unnecessary and undeserved burden on the Petitioner.40

40. Moreover, the Petitioner feels that he does not have it in him to provide the warmth, comfort and

assurance that a woman expects from her husband. It is not feasible for the parties to cohabit anymore.

37 Gollins v. Gollins, 1964 SCC A.C 64(Canada).

38 AIR 2012 MP 74 (India).
39 Baburao v. Sushila Bai, AIR 1964 MP 73 [LNIND 1962 MP 162]: 1963 MPLJ 426: 1963 Jab LJ 446 : ILR (1963) MP
462(India). 55 Parliamentary Debates on Special Marriage Bill, 10th December, 1954.
40 Proposition 5, 9,17 and 18.

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Now that the Petitioner has realized his feelings for Priya, the surrogate mother of his daughter, he

believes there is nothing left in the marriage for it to be stretched.

c. Irretrievable breakdown of marriage.

41. It is stated that in the case of Baburao v. Sushila Bai, it was held that if the marriage between two parties

has broken down irretrievably, then the court should not pass a decree for restitution of conjugal rights. 41

It is submitted that anything which goes to show that the marriage has broken down irretrievably would

amount to reasonable excuse.42 Anything which amounts to a ground for judicial separation or nullity of

marriage is a complete defense to a petition for restitution of conjugal rights under the Divorce Act,

1869.43

42. It is humbly submitted that when home is broken beyond all possibilities of repair, when it has become an

arena of bouts between the spouses, neither the restitution of conjugal rights nor the constitutional law can

help. Such a union should be broken with maximum fairness and minimum bitterness, distress and

humiliation.44

43. The counsel has established earlier under the issue of irretrievable breakdown of marriage, that the

marriage between the Respondent and the Petitioner is beyond repair and cannot be forced into

functionality with the intervention by the court.

44. Any matrimonial misconduct of the husband though not amounting to a ground for a matrimonial relief,

may also constitute a valid defense. 61 It is inferred from the facts of the instant case and alleged by the

41 AIR 1964 MP 73 [LNIND 1962 MP 162]: 1963 MPLJ 426: 1963 Jab LJ 446 : ILR (1963) MP 462.
42 DR PARAS DIWAN: LAW OF MARRIAGE AND DIVORCE, 7th ed [Chapter V RESTITUTION OF CONJUGAL RIGHTS].
43 Id.
44 Dr Paras Diwan: Law of Marriage and Divorce, 7th ed [Chapter V RESTITUTION OF CONJUGAL
RIGHTS]. 61 Husani v. Md. Rustom, (1906) 29 All 222 (India).
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Respondent, that she had to suffer mental agony while adjusting with the parents of the Petitioner while

also working on her aspirations of becoming a doctor.45

B. Restitution of Conjugal Rights violates the Fundamental Rights of the Petitioner.

45. RCR induces the grossest form of violation of the sanctity of individual dignity and the right to privacy on

many grounds.46 It is humbly stated that in the case of T. Sareetha v. T. Venkatasubbaiah, Choudhary, J.,

observed that,47

“A State coercion of this nature can neither prolong nor preserve the voluntary union of husband and

wife in matrimonial home... Neither the State coercion can soften ruffled feelings nor clear the

misunderstanding between the parties.”

The court may refuse to pass a decree for restitution of conjugal right if it feels that it would not be just and

reasonable to do or that it would be inequitable to pass a decree.48

a. The Petitioner’s Right to privacy and individual dignity is violated.

46. Individual dignity is the right of an individual to be respected and valued for their personality. It is a human

frame which one desires to always live in 49 and right to privacy is an essential feature of individual dignity.

It safeguards individual autonomy and connotes a right to be let alone. 50 It is humbly stated that in the case

45 Proposition para 5.
46 (2019) 6 GNLU L,“Restitution of Conjugal Rights: An Infamous and Futile Matrimonial Remedy”, Rev. 3.
47 AIR 1983 AP 356 [LNIND 1983 AP 176]: (1983) 2 Andh LT 47 [LNIND 1983 AP 176]: (1983) 2 APLJ (HC) 37: (1983) 2 Civ LJ 158.
48 Raj Mohammad v. Saeeda Amina Begum, AIR 1976 Kant 200 [LNIND 1976 KANT 48]: (1976) 1 Kant LJ 427: ILR (1976) Kant 1008
: 1976 Hindu LR 651(India).
49 Joesph Shine v. Union of India, (2018) 2 SCC 189 (India).
50 K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1(India).

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of T. Sareetha v. T. Venkatasubbaiah, Choudhary, J. opined that Section 9 of HMA did not promote any

legitimate public purpose based on any concept of social good, and thus was arbitrary and violative of Art.

14 of the Constitution. 51

47. Deciding whom to spend your life with is an important and a very intimate matter, which the Petitioner has

a right to. Even after spending 14 years with the Respondent, he did not find himself as happy as he is with

Priya and hence chooses to not go back to his earlier state of life.

b. The Petitioner’s Freedom of Association is violated.

48. Article 19(1) of the Constitution of India guarantees freedom of forming an association. But along with the

positive obligation, this right also gives a negative obligation.52 It also protects the right of an individual to

dissociate oneself from an association.53

49. Hence, it is humbly submitted that if the Petitioner does not want to be a part of his matrimonial association

with the Respondent, he has a constitutional right to not be forced into it.

As stated earlier, the Petitioner does not want the Respondent to be a part of his life as he does not need

her emotionally, physically or socially.54 A court granting RCR cannot suddenly crease out the emotional

(actual or imaginary) misgivings of a spouse and might as well drift them apart by forcing them to live

with each other.55

To retain this remedy, which is rightly called worse than tyranny and worse than slavery, in the modern

world for this little advantage is repelling.5657

51 AIR 1983 AP 356 [LNIND 1983 AP 176]: (1983) 2 Andh LT 47 [LNIND 1983 AP 176]: (1983) 2 APLJ (HC) 37: (1983) 2 Civ LJ
158(India).
52 Express Newspapers (P) Ltd. v. Union of India, AIR 1958 SC 578(India).
53 K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1(India).
54 Proposition para 17.
55 Raj Kumari Agarwala, “Restitution of Conjugal Rights: A Plea for the Abolition of the Remedy”, 12 JOURNAL INDIAN LAW
INSTITUTE 257 (1970).
56 Parliamentary Debates on Special Marriage Bill, 10th December, 1954(India).
57 DR PARAS DIWAN: LAW OF MARRIAGE AND DIVORCE, 7th ed [Chapter V RESTITUTION OF CONJUGAL
RIGHTS]. 75 Hindu Minority Guardianship Act 1956.
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III. PETITIONER IS ENTITLED TO GET THE CUSTODY OF THE CHILD.

50. It is humbly submitted that Petitioner is entitled to the custody of the child under Section 6 of Hindu

Minority Guardianship Act.75

A. Petitioner is the natural guardian of the child

51. In accordance with the Section 6 of the Hindu Minority and Guardianship Act 58, the father is the natural

guardian of the minor child. Petitioner has developed a deep emotional relationship with the child by

being the primary care59 giver to both Priya as well as the child and living with the child for first crucial

months. According to Nil Ratan Kundu v Abhijit Kundu 60, the welfare of the child, the court’s final

decision depends

on what is conductive to the welfare of the minor.

52. It can be also seen in the case Y. Varlakshmi v Y. Kanaka Durga Prasad 61 where the custody of the child

was given to the father since the child was happy with the father, since in this case the child has lived

with the father in early months, the child is most likely to be attached to the father. Petitioner is

financially strong to look after the child’s comfort, health, education and all other essential needs.

53. He has the job since many years and has established a strong foundation, and with sheer hard work, he

has been always promoted in his field. In some cases, Indian courts 62 have favored to give the custody of

58 Id.
59 Proposition para 16
60 Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413(India).
61 Y. Varalakshmi Vs Y.Kanaka Durga Prasad - 1988 CJ (AP) 430(India).
62 Sanju And Others vs Sobhanath And Others AIR 1995 All 90, Mausami Moitra Ganguli v. Jayant Ganguli, (2008) 7 SCC 673(India).

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the child to the parent who is financially better off, In this case Petitioner has been working as a software

engineer for an MNC63 as compared to Anjali who just started her job, a few years back. Petitioner as a

dedicated father stayed back in New Delhi, to take care of the child 64, and Priya being the genetic mother

of the child which means she has natural affection towards the child.

B. Petitioner has Priya’s assistance to provide true care and affection to the child.

54. Since Priya is the genetic mother of the child, it is very much natural that she has affection towards the

child65. Since she has been providing care to the child and been with the child for the first few months

which are very crucial for the child’s development 66, she has automatically developed the innate bond

with the child and her bond is stronger than ever.

55. Priya is the rightful and able mother of the child as she genetically related to the child. Since best interest

of child is paramount in the cases of custody of the child, there are certain factors to be considered which

are of great importance, such as emotional and specifically biological needs of the child 67, and the kind of

attachment or relationship the child has68.

56. The genetic mother shares a special, innate relationship with the child since she breast-fed the child in the

early months of the child, also because the child is an integral part of the genetic mother. Thereby the

physical, emotional and biological needs can be only taken care by the genetic mother that is Priya.

63 Proposition para 1
64 Proposition para 15
65 LAW COMMISSION OF INDIA, report no 228, “Need for legislation to regulate assisted reproductive technology clinics as well as rights
and obligations of party to surrogacy” (August 2009)(India).
66 Proposition para 16
67 Ram Kishore Singh v Nirmala Devi Kuhwaha, (2006) 3 MPLJ 194(India).
68 J Selvan v N.Punidha, (2007) 4 CTC 566(India).
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PRAYER FOR RELIEF

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Wherefore in light of the facts stated, issues raised, arguments advanced and authorities cited, The Petitioner most

humbly and respectfully request the Session Court to adjudge and declare that:

1. The petitioner is entitled to a decree of punishment.

2. It is a murder not suicide.
3. They both are guilty of murder.

And pass any other order that it may deem fit in the ends of justice, equity and good conscience.

All of which is most humbly and respectfully submitted before this Court.

Date: 24th March, 2023 Counsel No.: FL – 36

Place: Ambala (Counsel for the Petitioner)

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