hindu law project

8/19/2019 Hindu Law Project

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IN THE COURT OF FAMILY COURT AT BOMBAY, DISTRICTCOURT

Case Concerning

The Hindu Marriage Act, 1955

DR. N.G. DASTANE……………………………. (APPELLANT)

VS.

MRS S. DASTANE……………………......... (RESPONDENT)

ON SUBMISSION TO THE HON’BLE DISTRICT COURT OF BOMBAY

MEMORIAL ON BEHALF OF THE RESPONDENT


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TABLE OF CONTENTS

1. INDEX OF AUTHORITIES II

2. L IST OF ABBREVIATIONS V

3. S TATEMENT OF JURISDICTION VI

4. S TATEMENT OF FACTS VII

5. QUESTIONS PRESENTED VIII

6. SUMMARY OF ARGUMENTS 02

7. Arguments Advanced 03 -7

8. Prayer 8


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INDEX OF AUTHORITIES

JUDICIAL DECISIONS:

Henderson v. Henderson, 1994 (1) A.C 49

Ganta Nagamani v. Ganta Lakshman Rao, 1992(1) H.L.R. 626 at p. 632

(A.P.).

STATUTORY AND OTHER AUTHORITIES:

The Hindu Marriage Act, 1955.

The Indian Evidence Act, 1872.

Code of Civil Procedure, 1903.

BOOKS REFERRED:

DIWAN PARAS, MODERN HINDU L AW

SHRIVASTAVA’ S ON HINDU LAW

DICTIONARIES REFERRED:

BLACK’ S L AW DICTIONARY (West Group Publishers, 2002)

T HE L AW L EXICON, BAKSHI, P. M., Ashoka Law House, New Delhi.


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SITES REFERRED:

MANUPATRA.COM

SCC ONLINE.COM

JUDIS.NIC


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LIST OF ABBREVIATIONS

A.C. Appeal Cases

A.I.R. All India Reporter

Ed. Edition

Cr.LJ Criminal Law Journal

L.R. Law Report

Vol. Volume

Q.B. Queen’ s Bench

V. Verses

Ors. Others

Schizo Schizopherina

Dr. Doctor


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STATEMENTS OF JURISDICTION

The petitioner and respondent have submitted the present dispute before this Hon’ble

court under sec (10) (b)1, 12(1) (c)2 and 13(1) (c)3.this memorandum sets for the facts,

and an argument on the presents case.

1 Judicial separation under sec10 (1) (b) - either party to a marriage, whether solemnized before orafter the commencement of this Act, may present a petition praying for a decree for judicial separation onany of the grounds specified in sub-sec (1) of sec 13, and in the case of wife also on any of the groundsspecified in sub-sec (2) thereof, as grounds on which a petition for divorce might have been presented.

2 Nullity of marriage under sec 12 (1) (c), voidable marriages, that the consent of the petitioner, orwhere the consent of the guardian in marriage of the petitioner was required under sec 5 as it stoodimmediately before the commencement of the Child Marriage Restraint Act, 1978, the consent of suchguardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact orcircumstance concerning the respondent.

3 Divorce, under sec 13 of Hindu Marriage Act 1955- Any marriage solemnized, whether before orafter the commencement of this Act may, on a petition presented by either the husband or the wife, bedissolved by a decree of divorce on the ground that the other, (c) has been incurably of unsound mind, orhas been suffering continuously or intermittently from mental disorder of such a kind and to such anextent that the petitioner cannot reasonably be expected to live with the respondent.


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STATEMENT OF FACTS

1. In April, 1956 parents of the respondent arranged her marriage

with the appellant. But before finalizing the proposal, respondent’s

father wrote two letters to the appellant's father saying in the first

of these that the respondent "had a little misfortune before going to

Japan in that she had a bad attack of sunstroke which affected her

mental condition for some time". In the second letter which

followed at an interval of two days, "cerebral malaria" was

mentioned as an additional reason of the mental affectation. The

respondent's father asked her appellant's father to discuss the

matter, if necessary, with the doctors of the Mental Hospital or

with one Dr. P.L. Deshmukh, a relative of the respondent's mother.

2. The marriage was performed at Poona on 13.5.1956. The appellant

was then 27 and the respondent 21 years of age.

3. On 1.11.1956 the appellant was transferred to Poona where the

two lived together till 1958. During this period a girl named

Shubha was born to them on 11.3.1957. On 21.3.1959 the second

daughter, Vibha, was born.

4. As stated earlier, the third daughter, Pratibha, was born on

19.8.1961. On 15.12.1961 the appellant wrote to respondent's

father stating that he had decided to go to the court for seeking

separation from the respondent. The proceedings out of which thisappeal arises were instituted on 19.2.1962.


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QUESTIONS PRESENTED

I.

WHETHER THE RESPONDENT WAS OF UNSOUND MIND AND THE CONSENT OF THE

MARRIAGE WAS OBTAIN BY FRAUD?

II.

WHETHER THE APPELLANT CAN CLAIM JUDICIAL SEPARATION?

III.

WHETHER THE RESPONDENT WAS ACTUALLY THE PATIENT OF ‘SCHIZOPHERNIA ’ AS

APPELLANT CLAIM?


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SUMMARY OF ARGUMENTS

1. There was no fraud from the side of the respondent because the

petitioner had decided to marry the respondent after fully considering the

facts.

2. The appleant can not claim judicial seperation because there was not

condonation of curetly from husband side therefore divorce suit is not

maintainable.

3. Respondent was not suffering from “schizophernia” because she had a

high educational qualification and was serving in central goverment

service and the claim of appleant was incorrect.


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ARGUMENTS ADVANCED

ISSUE 1: WHETHER THE RESPONDENT WAS OF UNSOUND MIND AND THE

CONSENT OF THE MARRIAGE WAS OBTAIN BY FRAUD?

UNSOUND MIND DEFINITION-

A person of unsound mind is an adult who from infirmity of mind is incapable

of managing himself or herself in daily affairs. The term, therefore, includes

insane persons.

“ Section 12 of Indian Contract Act, 1872 tells us what a sound mind for

entering into a contract is . It lays down that, "A person is said to be of sound

mind for the purpose of making a contract if, at the time when he makes it he is

capable of understanding it and of forming a rational judg ment as to its

effects upon his interest."

At the time of consent of the marriage, the respondent was of sound mind, and

was always of sound mind, even the doctors of Yervada Mental Hospital said

that the respondent was of sound mind, so therefore we can conclude from the

inferences respondent was of sound mind, and had no mental problems there

on.

The respondent was of sound mind, as when she was treated for sunstroke, at

Yeravada Mental Hospital, the doctors said she was of sound mind, and


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therefore she was cured of sunstroke and malaria, and sunstroke is not a

communicable disease, and it is curable in India, even malaria is not a

communicable disease and has no side effects on brain and heart.

FRAUD:

Fraud consists of some deceitful practice or willful device, resorted to with

intent to deprive another of his right, or in some manner to do him an injury.

As distinguished from negligence, it is always positive, intentional.

Fraud in this case means obtaining consent, by giving some false or wrong

information which never existed to other party for some positive good. The

respondent father and the respondent had not committed fraud, and moreover

the consent was obtained by free, where the appellant and his father have

considered in that respect

The consent of the marriage was not obtained by fraud, as respondent’s father

had sent two letters to appellant’s father, in first one it was stated, that therespondent had a bad attack of sunstroke which affected her mental condition

for some time. In second letter it was stated which was send after two day gap,

in which cerebral malaria was mentioned as an additional reason for mental

affection, it also stated that she was cured at the Yeravada Mental Hosptital,

and she is cured now, the appellant agreed and gave a positive consent to that.

The father of the respondent asked appellant’s father, if necessary to discuss

the matter with the doctors of the hospital or Dr. P.L Deshmukh.


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ISSUE 2: WHETHER THE APPELLANT CAN CLAIM JUDICIAL SEPARATION?

Judicial Separation under Section 10, Of the Hindu Marriage Act, 1955 reads--

(1) Either party to a marriage, whether solemnized before or after the

commencement of this Act, may present a petition praying for a decree for

judicial separation on any of the grounds specified in sub-section (1) of Section

13, and in the case of a wife also on any of the grounds specified in sub section

(2) thereof, as grounds on which a petition for divorce might have been

presented.

(2) Where a decree for judicial separation has been passed, it shall no longer beobligatory for the petitioner to cohabit with the respondent, but the court may,

on the application by petition of either party and on being satisfied of the truth

of the statement made in such petition, rescind the decree if it considers it just

and reasonable to do so.

Now considering the section 13 of The Hindu Marriage Act, 1955, certain

points be illustrated--

1) Any marriage solemnized, whether before or after the commencement of the

Act, may, on a petition presented by either the husband or the wife, be

dissolved by a decree of divorce on the ground that the other party-

(i) Has, after the solemnization of the marriage had voluntary sexual

intercourse with any person other than his or her spouse; or

(i)(a) Has, after the solemnization of the marriage, treated the petitioner with

cruelty; or

(i)(b) Has deserted the petitioner for a continuous period of not less than two

years immediately preceding the presentation of the petition; or


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(ii) Has ceased to be a Hindu by conversion to another religion

Now focusing on the sub section (1) (b) it found that —

There should be separation of 2 years, before filing of the suit, as they lastresided together on 27.2.1961, and the suit was filed on 19.2.1962, which is

accurately one year, therefore the appellant was is not able to claim judicial

separation, as they had a separation of 1 year, and the condition says that,

they should not live for 2 years before the preceding of the suit, so in this case,

the appellant cannot claim judicial separation.

(A) Condonation of cruelty from the appellant

It is a well settled proposition of the law that the term “condonation” used in this connection,

consist of two parts. Firstly what it amounts is that there should be forgiveness4 on part of the

other party who has been at a wrong by sexual lapse and the second aspect of the matter is

that after such forgiveness there should be reinstatement of the parties together in their marital

life.

The view expressed in Henderson v. Henderson5 , with regard to implications of condonation is

as follows—

“Condonation involves forgiveness confirmed or made effective by reinstatement. The essence

of the matter is taking the case where it is, the wife who has been guilty of matrimonial offence

that the husband with knowledge of the wife’s offence should confirm his forgiveness by

reinstating her as his wife”.

A similar view has been expressed in Ganta Nagamani v. Ganta Lakshman Rao6

As the respondent was guilty of cruelty, there was condonation of cruelty from the appellant, as

even after facing cruelty from the respondent, both the respondent and the appellant had normal

sexual life, i.e cohabitation. Even on the last date, 27.2.1961, when they lived together for the

last time, the respondent was 3 months pregnant, so the main thing and the main proof of

condonation, is sexual intercourse, so in this regard, there was condonation from the appellant.

4 Shrivastava on Hindu Law5 6 Q. B. 2886 AIR 1992 AP 76


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Further from this we can infer that, as there was cruelty from the respondent,

but there was condonation from cruelty from the appellant, so we can conclude

that the divorce suit was not maintainable.

ISSUE 3: WHETHER THE RESPONDENT IS ACTUALLY THE PATIENT OF

SCHIZOPHRENIA WHICH APPELLANT CLAIM?

Page 26 of file which was the history sheet of the respondent maintained in the

Yerawada mental hospital where “the word schizo” was recorded by Dr.

Mujawar which was not sufficient to show that the respondent was in fact

suffering from schizophrenia.

And Dr. Kelkar of the mental hospital also admits that when a person moves in

society as well dressed passes examination and is in the government service

that person cannot be called as a patient of schizophrenia .she has also passed

M.A. in feb1964 and she is now in the employment of the central government

service so these facts leads that the claim of appellant was wrong.


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PRAYER

For the foregoing reasons respondent respectfully request this Hon’ ble court to:

As there was no fraud on part of the respondent, and it is therewith

proved that respondent was not of unsound mind, there was

condonation of cruelty form the appellant, moreover it does not amount

to judicial separation

Hence it must set aside the earlier decision or pass any other further order(s),

as this Hon'ble Court may deem fit and proper under the circumstances of the

case, in the interest of equity, justice and good conscience.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

(COUNSEL ON BEHALF OF RESPONDENT )

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