BEFORE THE HON’BLE FAMILY

COURT

OF DELHI

PETITION FOR DIVORCE

OP NO________ OF 2022

UNDER SECTIONS 13 , 24,25, OF THE HINDU

MARRIAGE ACT , 1955, 125 AND 125(4) OF CRPC

DHRUV PETITIONER

v.

TARA RESPONDENT

UPON THE SUBMISSION TO THE HON’BLE CHIEF JUDICIAL MAGISTRATE

AND HIS COMPANION MAGISTRATES OF THE SESSIONS COURT OF BHOPAL

MEMORANDUM ON BEHALF OF THE RESPONDENTS

TABLE OF CONTENTS

TABLE OF CONTENTS

LIST OFABBREVIATIONS

INDEX OF AUTHORITIES

STATEMENT OF JURISDICTION

STATEMENT OF FACTS

QUESTIONS PRESENTED

SUMMARY OF PLEADINGS

PLEADINGS

PRAYER
ListofAbbreviations Memorandum for Respondent

LISTOFABBREVIATIONS

ABBREVIATIONS DEFINITION
¶ Para
&. And
Admn. Administration
A.I.R. AllIndiaReporter
CMAPPL.NO Criminal MiscellaneousApplication
Number
Art. Article
Anr. Another
UOI Unionofindia
Co. Company
Corp. Corporation
Cri.L.J. CriminalLawJournal
Ed. Edition
JP JusticeofthePeace
WLR TheWeeklyLawReports
Govt. Government
J.I.L.I. JournaloftheIndianLawInstitute
JT. JudgmentToday
QB QueensBench
M.L.J. MadrasLawJournal

Mad.L.J
FLR FamilyLawRules
ER AllEnglandLawReports
Ors. Others
GLR GujaratLawReporter
PIL PublicInterestLitigation
Regd. Registered
S.C. SupremeCourt
ListofAbbreviations Memorandum for Respondent
SCALE. Supreme CourtAlmanac
S.C.C. SupremeCourtCases
S.C.R. SupremeCourtReports

Sec. Section
Supp. Supplementary
T.N. TamilNadu
DLT DelhiLawTimes
U.P. UttarPradesh
ITR IncomeTaxReturns
v. versus
ACJ Accidents Claims Journal
ACC AccidentandCompensationCases
AIHC- All India High Court Cases
FAJ All India Prevention of FoodAdulteration
Journal
ALLMR ALLMAHARASHTRALAW
REPORTER
ARC Allahabad Rent Cases
AWC AllahabadWeeklyCases
List of Authorities Memorandum of Respondent

ACTS, CONVENTIONS AND REPORTS

1. HINDU MARRIAGE ACT,1955

2. MEDICALCOUNCILOFINDIA(PREVENTIONANDPROHIBITIONOFRAGGINGINMED
ICALCOLLEGES/INSTITUTIONS)REGULATIONS, 2009.

3. THE CONSTITUTION OF INDIA, 1950.

4. THE CRIMINALPROCEDURE CODE , 1860

DICTIONARY

Black’sLawDictionary,BryanGarner,ed.,7thed.(Minn.,USA:St.Paul,1999)
IndexofAuthorities Memorandum for Respondent

INDEXOFAUTHORITIES

CASES CITED

S. no Case Citation
1. Smt Togari Chandrakala vs Togari Venkatesh 1993(3)ALT 733,II(1994)
DMC 524
2. Subrata Kumar Banerjee vs Dipti Banerjee AIR 1974 cal 61, 77 CWN 944

3.   Devyani kantilal shroff vs Kantilal gamanlal shroff and AIR 1963 Bom 98, (1963) 65
Anr BOMLR 24,

4. Rajee vs Baburao   (1995) 2 MLJ 492

5.   P. Vs P&R AIR 1982 Bom 498

6. Swarajya Lakshmi v. G.G Padma Rao [1974 (1) SCC 581

7. Pradeep vs Shailja AIR 1989 Del 10

8. Chitralekha vs Ranjeet Raj AIR 1977 Del 176

9. Jasbir Kaur Seghal vs District Judge,Dehradun AIR 1997 SC 3397

10. Gita Chattajee vs Prabhat kumar 1988Cal 83

11. Pushkar Navnital Shah vs Rakhi AIR 2007 Guj 5

12. Subhas Chandra Das vs Laxmi Rani Das 1(2013) DMC 25

13. Hardeep Singh vs Smt Dalip Kaur 1970 Punj 284

14.

15.

16.

17.
IndexofAuthorities Memorandum for Respondent

18.

19.

20.
IndexofAuthorities Memorandum for Respondent

BOOKS REFFERED

1. Dr.Shivani Goswami, FamilyLaw-1,First Edition

2. Dr.S.R. Myneni, Family Law-1,First Edition
3. Sudershan Goel,B.S. Dhillon,Family Law In India,First Edition
4. Dr. G.C.V. Subha Rao’s,Family Law In India,Tenth Edition
5. Dr. U.P.D. Kesari,Modern Hindu Law,Tenth Edition
6. B.M. Gandhi, Family Law,Second Edition,Vol 1,2019,Eastern Book
Company,Luckmew.

7. Sir DinshawFardunjiMulla,MullaHinduLaw,(21sted)
IndexofAuthorities Memorandum for Respondent

ONLINERESOURCESANDDATABASES

● www.indiankanoon.org
● www.scconline.com
● www.scconline.com
● www.legalserviceindia.com
● www.heinonline.com
● www.casemine.com
● www.academia.edu
● www.livelaw.in

ARTICLESANDJOURNALS

1. LawTimesJournal

● Availableat:-https://lawtimesjournal.in

2. BareActsLive

● Availableat:-http://www.bareactslive.com

3. Government notifications and orders

● Availableat:-https://www.meity.gov.in

4. Online newspapers

● Availableat:-www.thehindu.com
www.indianexpress.com
www.livelawatch.comw
ww.timesofindia.com
Statement of Jurisdiction Memorandum for Respondent

STATEMENTOFJURISDICTION

THE RESPONDENT HUMBLY SUBMITS TO THE JURISDICTION OF THE HONORABLE

FAMILY COURT OF DELHI TO DISMISS THE PETITIONS AGAINST THE RESPONDENT IN
THE SUIT FILED BY THE PETITIONER AND TO ADMINISTER JUSTICE IN GOOD FAITH
StatementofFacts Memorandum for Respondent

STATEMENTOFFACTS

1) Dhruv and Tara got married in January 2015. Both of them were working in Multi-National Companies
at the time of their marriage. Dhruv was the CEO of hiscompany at Delhi and lived in the posh locality.
Tara was working as a managein Mohali. She however had to leave her job as she had to shift to Delhi
withDhruv and his family. Marriage was performed as per Hindu rites in the presenceof their families.

2) In August 2016, Tara got a lucrative job offer which she had to refuse because Dhruv was not in favour
of her going out to work during her pregnancy. She was quite unhappy with this decision of Dhruv and
felt frustrated. In March 2017, the couple was blessed with a daughter. Dhruv and his family were not
very happy with the birth of a girl child named Chandni.

3) Dhruv was very busy in his work and was unable to give time to his family. He would stay out of the
house for long hours and would also travel out of the city for work. Tara found him talking secretly no. of
times with his secretary on the phone. Kavita is Dhruv’s secretary and was working in Dhruvs Company
for a decade and she was committed to her work. Tara tried to read Kavita and Dhruv’s what’s app chat
regarding the meetings organised in the evening. Often when Tara would call on Dhruvs mobile phone,
Kavita would answer. Dhruv and Tara had regular fights because of this.

4) Tara started looking for a job as their daughter grew few months old but Dhruv insisted that she should
stay at home and look after her daughter. Tara was not happy because of Dhruvs behaviour and she shared
it with her parents on several occasions. But her parents would ask her to adjust. She lost interest in
all the daily activities. She was constantly looking for Dhruvs attention but he was very busy with his
work as he was appointed as the Vice President of the National Board of Industries.

5) One evening in June 2021 Dhruv had a meeting with his client. Tara had apprehension that Dhruv was
going with Kavita and that it was not an official meeting. She kept waiting for him to come back home
and called him several times, he did not answer. Dhruv came back home around 2:00 AM. On his coming
back Dhruv and Tara had an ugly fight.

6) Tara got fed up and left the house and took their daughter with her. Her parents were upset in seeing
her condition and tried to console her. After seeing her condition for a couple of days her parents
approached Mr. Navin, a Counsellor whom they consulted earlier for Tara.
StatementofFacts Memorandum for Respondent

7) Tara was initially reluctant to share things with Navin who made her comfortable
and made her understand that whatever conversation they have, that would be
confidential. She opened up to Navin about her matrimonial life and her
relationship with Dhruv. She told Navin that she was an ambitious and bubbly girl
before she got married. Tara visited Navin’s clinic regularly. With the passage of
time, Tara started showing improvement in her behaviour. There were a lot of
instances where Navin would visit Tara at her home just to check whether she
was doing fine. He too started liking spending time with her.

8) Tara’s parents being of a conservative mindset convinced Tara to give another

chance to her marriage and insisted that she should go back to her husband.
After much persuasion from her parents, she decided to go back. Navin went
silent on hearing about Taras decision of going back to Dhruvs place.

9) Once she got back, initially things between them were fine. With time Dhruv
again started coming back home late. He was very busy. Tara was really upset
and shared everything with Navin. She would talk to Navin quiet often during the
day. In the presence of Dhruv, Tara would disconnect the call. On many
occasions Dhruv secretly snooped through her phone. He found majority of the
calls received and dialled were from and to Navin. Dhruv confronted Tara and
she clarified that Navin was just a friend and on the other hand she blamed Dhruv
that he was involved with Kavita.

10) In November 2021 Navin was in Delhi to attend a Conference so he visited Tara’s
house. Tara felt happy and enjoyed spending time with him. Tara also started
going out of the house for long hours. Navin took good care of her and helped her
in overcoming the problems she was facing in her present life. One day Dhruv
came home and found Navin at his house. Tara introduced Navin as her friend to
Dhruv. Dhruv found out from the talk that Navin visited his house earlier also. His
daughter Chandni told her father “That tell uncle to go back.”

12) Both Dhruv and Tara had a big fight and in a fit of anger Dhruv asked Tara to
choose between him and Navin. On keeping quiet, he forcibly threw her out of
StatementofFacts Memorandum for Respondent
the house and said never come back ever. Tara left the house with her daughter.

Statement of Facts Memorandum for Plaintiffs

Taras parents called Dhruv to amicably settle the matter but he refused point
blank. When Navin got to know that Tara is back at her parents’ house, he
offered her to join his hospital as Floor Manager knowing Tara always wanted to
be a financially independent woman.

13) After coming back to her parent’s house, she got to know about her pregnancy.
She immediately called Dhruv to share the good news with him. Dhruv denied
being the father of the child. Whereas Tara insisted that Dhruv was the father of
the child.Dhruv files for Divorce at Family Court Delhi in January 2022 on the ground of
Adultery and also asks for the custody of his daughter.Tara denies this and files of
Restitution Of Conjugal Rights and Interim Maintenance.

1. The sovereign “Republic of Wadia” is a South Asian democratic country; the laws are
parimateriawith the laws of India, subject to exceptions specified below. The Wadia Information
TechnologyAct(WITA) is the primary statute governing Information Technology law in Wadia, and
theMinistry of Information Technology, Wadia (MIT) is the statutory authority charged with
theenforcementoftheInformationTechnologyAct(WITA).MITisempoweredandhasissued,severalregu
lations,liketheWadiaInformationTechnology(IntermediariesGuidelines)Rules,2011and the
Information Technology (The Wadia Computer Emergency Response Team and Manner
ofPerforming Functions and Duties) Rules, 2013 which deals with IT Crimes. Wadia rules
mentionedherein above are also parimateria rules to India made in this regard.

2. Thedecisions of the major countries including India (where common law is prevalent), are
ofsignificantvaluesfortheRepublicofWadiaalso.TheApexCourtofWadiaalsoreliesonestablishedInfor
mationTechnologyLaw precedents of the European Union and the United StatesofAmerica.

3. Skynet is one of the fastest growing companies of Wadia and is placed at 5 th position in
Fortune500 world ranking. Pablo Escobar is the Chairman of this group. Other businesses of Skynet
groupareRobotics,Chemicals,Energy,Steel, PetroleumGas,DTH,Airlines &Automobile,etc.

4.
TheRepublicofWadiaisadevelopedcountryandmostoftheGovernmentandprivateservicesaretakenover
bytheArtificialIntelligence(AI)basedmachinesandinhealthsectoralso.AIRobots are taking care of the
StatementofFacts Memorandum for Respondent
patients.

5. Mr. Arnold is a 65-year-old man retired from defence services and he is living alone. Sara is
theonlydaughter ofMr.Arnold, Sheis marriedand working inan MNCcompany in USA.

6. Mr. Arnold is suffering from Rheumatoid Arthritis and the doctors suggested him to have an
AIBased Robot MAK T-9000 for his support. MAK T-9000 is a product of Skynet Robotics
Divisionandspeciallydesignedforolderpeoplefortheirmedicalsupportandforgivingthemthecompanion
ship also as it can respond to them, can talk to them like a friend. This MAK T-9000 isalso designed
to protect the life of elderly people from unknown threats as they are easy targets ofcriminals who
can rob and even kill them.

7. Mr.ArnoldpurchasedonlineMAKT-9000fromSkynet’sRoboticDivision.MAKT-9000served
StatementofFacts Memorandum for Respondent
Mr. Arnold almost for one year without any issue and Mr. Arnold was very happy with it. But
oneday while giving him support to Mr. Arnold enable Mr. Arnold to walk, MAK T-9000 used
moreforcethenrequiredwhichresultedinmultiplefractures,excessivebodypainandbleedingwhichled to
his death.

8. Next day MAK T-9000 reported the death of Mr. Arnold to police authorities who arrested MAKT-
9000 on the charge of Mr. Arnold’s murder. Sara the daughter of Mr. Arnold also feels that it is
amurderand MAKT-9000 isthe culprit.

9. As per the medical report MAK T-9000 used 9,000 lbs. of compressive force resulting in death
ofMr. Arnold. According to medical reports the femur can support 30× body weight and the
adultmale femur can take/bear roughly 6,000 lbs. of compressive force. Such high forces are
rarelygenerated by the body under its own power and therefore such motor vehicle collisions are the
maincause of femur fractures.

10. MAK T-9000 has been designed by the Robotics Division of the Skynet Company and Ministry
ofInformation & Technology of Wadia has given license to the Skynet Company for its
commercialproductionandalsoallowed MAKT-9000to beusedin MedicalandSecurity Services.

11. Six month ago The Republic of Wadia declared that AI based Humanoid Robots are legal
personsandcanenjoy alllegalrights mentionedunder the“Constitutionof RepublicofWadia”.

12. MAK T-9000 approached the High Court for the protection of its rights guaranteed under
theConstitutionofWadia.

13. Mr. Arnold who was in Defence Services had been involved in a secret project to develop
RoboticArmyforRepublicofWadiatoavoidhumancasualtiesastheCountryissurrounded by
sixneighboring countries, of which it has maintains good relations with only three countries.

14. Robotic Division of Skynet has Computer Source Code of MAK T-9000 Robot and Skynet
claimsthisMAKT-9000 ashack-proof Robotwhich cannot behacked.

15. F-Robotics and Project X are the competitors of Skynetcompany and as per their reports,
theRobots of Skynet are not fully hack-proof.

16. The incident triggered the debate over social media and The Supreme court of Wadia
condemnedtheactivities of MediaTrail over social media platform.

17. Mr. Pablo Escobar (Chairperson- Skynet) is also a member of the parliament of Wadia and
hasgood relations with the ruling government. Being one of the biggest businessmen and
entrepreneursofWadia,heishelpingWadiainbecominggloballeaderatdifferentforumsi.e.,UnitedNation
s,
StatementofFacts Memorandum for Respondent
WorldBank,WTO,GATT,etc.becauseofwhichtherearerumorsthatWadiacanbeagloballeaderby 2050.

18. In the investigation, police authorities noticed that 10,000 bitcoins of Mr. Arnold were
transferredto Paakustan country to an unknown account a day before the death of Mr. Arnold.
Investigatingauthorities are yet to find complete details of the account holder to whose account the
money wastransferred as also to establish find out the link between the murder of Mr. Arnold and
moneytransaction in the form of Bitcoin.

19. IntelligenceBureauofWadiaclaimstohaverecordedalmostaMillioncyber-attacksbyneighboring
countries in the last few years. In addition, thereto, it has also been found that
somecompaniesdeliberatelykeepaMalwareintheComputerSourceCodeoftheAI-BasedMachinesfor
unknown reasons.

20. A well-known NGO / Civil liberty group with the name of "Human Only" has been running
acampaign against the use of Robots in day-to-day life leading to a movement against the
SkynetCompany and is critical of the Government of Wadia also, who has granted status of legal
person toAI-Based Robots. On account of some damage caused to the public property and of
publication ofhate messages on AI technologies, some leader of the NGO mentioned above have
been arrestedalso.

21. On 26th July, 2020, the High Court ruled in favor of the applicant and therefore, Skynet and
MAKT-9000,preferredanappealbeforetheHon’bleSupremeCourt,againsttherulingoftheHighCourt.
Questions Presented Memorandum for Respondent

QUESTIONS PRESENTED

I. WHETHER THE SUIT IS MAINTAINABLE BEFORE THE HON’BLE

SESSIONS COURT UNDER THE SECTIONS 302 , 326 READ WITH
SECTION34OFIPC

II. WHETHERTHESUICIDENOTEWASAPLANTED ONE

III. WHETHERTHECOLLEGEAUTHORITIESCANBE
MADELIABLEFORAMANSDEATH WHETHER THE SUSPECTED SKYNET &
MAK T-9000 HAVE ANY V.REMEDYUNDER :

IV. WHETHER THE THE NARCO ANALYSIS TEST IS RELEVANT

ANDADMISSIBLE
 Memorandum for Respondent
Summary of Pleadings

SUMMARYOFPLEADINGS

1. ThesuitisnotmaintainableunderSections302,326readwithSection34ofIPC.
It is most humbly submitted that the suit is not maintainable under Sections 302 , 326 and
readwith Section 34 of IPC . The ingredients of the sections are not satisfied and the suit is to be
dulydismissedto ensure that the innocent persons are not punished .

2. Thesuicidenoteisnotaplantedone.
ThesuicidenotewasdefinitelynotaplantedoneandAmanandthere isclearconfusionasto
whether this was a suicide or murder . In that situation using the benefit of doubt
accusedmust not be convicted .

3. Thecollegeauthoritieshadtakenallnecessarystepstocurbtheragging.
The college authorities had taken all necessary steps to avoid ragging in the campus and
tothey did all they could to protect Aman. Government on the other hand have not
formulatedanynecessary laws to curb the practise of ragging in colleges . There are
insufficient lawseven in the center to curb the practise.

4. ThenarcoanalysistestisaninfringementofArticle20(3)ofConstitution.
The narco analysis test is an infringement on the fundamental right against self
incriminationunder article 20(3) of the Constitution . The test cannot be proven as conclusive
even by theexperts and are used just to harass the Defendants and to drag on the judicial
proceedings andwaste the time of the Court .
 Pleadings Memorandum for Respondent

PLEADINGS

I. THE DIVORCE PETITION UNDER SECTION 13 OF THE HINDU

MARRIAGE ACT 1955 IS NOT MAINTAINABLE
1) THERE ARE NO GROUNDS FOR DIVORCE IN THIS PETITION

Under Section 13 of the Hindu Marriage Act , 1955 ,following are the grounds of divorce:

a) Desertion
b) Adultery
c) Cruelty
d) Conversion
e) Insanity
f) Leprosy
g) Renunciation
h) Presumption of death
i) Venereal disease

Adultery

Adultery is defined under Section 13(1) of the Hindu Marriage Act, 1955, is a ground for divorce in India.
According to it, adultery is an act of voluntarily indulging into sexual intercourse out of marriage, i.e. any
person who is not the spouse of the respondent. Thus, it becomes necessary for the petitioner to prove that
he/she is married to the respondent, and the respondent made voluntary sexual intercourse with another
person.
In the case of Smt Togari Chandrakala vs Togari Venkatesh 1 it was held that when the husband came forward with
a plea that the wife was living in adultery, the burden is on him to prove that the wife was living in adultery. He
must also examine the persons who have knowledge of it. In the case it is further held that mere allegation by the
husband without corroborating testimony is of no avail to accept the plea that the wife committed the adultery.
An attempt to commit adultery does not amount to adultery. In P.V.P.And R2, the Bombay High Court held
that “It is True that there can be ordinarily no direct evidence of adultery. It is difficult To produce evidence
of the party being found in actual compromising position. However, the presence of wife in the restaurant
cabin with her blouse And brassier unhooked and the co-respondent holding her breast in hands, By itself
cannot permit any inference of adultery! So In present case the evidence is not reliable. The second
respondent is a friend of the respondent 1.And whenever second respondent visit petitioner’s place with the

1
1993 (3) ALT 733
2
[1957] NZLR 854
 Pleadings Memorandum for Respondent
presents of the daughter of petitioner and never alone. Just a incident cannot permit inference of adultery.
In Devyani Vs Kanyalal3 ,It is possible that it was preliminary step to adultery and may was preliminary step
to adultery and may ultimately have resulted in adultery but it cannot be said that the incident proved that
adultery had taken place. In this case as I have already stated the evidence on the incidents prior to Nov
2022 is not reliable. Petitioner found respondent 1 and respondent 2 in his place and they were talking
infront of his daughter. Respondent1 introduces respondent 2 to petitioner as her friend. which by itself
cannot permit any inference of adultery. Hence, the petitioner has been unable to prove adultery, it is not
sufficient to prove mere adultery.
In Swarajya Lakshmi v. G.G Padma Rao4, the Supreme Court has observed that divorce is not generally
favoured or Encouraged by Courts and was permitted only for very serious and grave Reasons. So in this
case, the Mere presence of the alleged adulterer in the place of the parties does not constitute an adulterous
act. Hence does not constitute adultery
The allegations raised by the petitioner in this case is without sufficient proof of evidence. So I humbly
request that the petition filed on divorce under the ground of adultery is to be dismissed.

3
AIR 1963 Bom 98,
4
[1974 (1) SCC 581],
 Pleadings Memorandum for Respondent

II RESTITUTION OF CONJUGAL RIGHTS AND THE INTERIM

MAINTAINANCE SHOULD BE GRANTED
It is humbly submitted before this honourable court that the respondent is entitled to
claim Interim maintainance and Restitution of Conjugal Rights.
1. Maintenance under Hindu Marriage Act, 1955
The Hindu Marriage Act, 1955, under sections 24 and 25 provide that if an applicant
spouse is unable to maintain him or herself, then he or she can move to the court and
claim remedy under the above mentioned sections of the Act. If one of the parties to the
suit files a petition for divorce or judicial separation, then they can also move an
application under section 24 for maintenance pendente lite i.e. maintenance during the
pendency of the proceedings and under section 25 for permanent alimony.
2. Maintainance pendente lite
Where in any proceeding under this Act it appears to the court that either the wife or
the husband, as the case may be, has no independent income sufficient for her or his
support and the necessary expenses of the proceeding, it may, on the application of the
wife or the husband, order the respondent to pay to the petitioner the expenses of the
proceeding, and monthly during the proceeding such sum as,having regard to the
petitioner’s own income and the income of the respondent, it may seem to the court or be
reasonable.Provided that the application for the payment of the expenses of the
proceeding and such monthly sum during the proceeding shall, as far as possible, be
disposed of within sixty days from the date of service of notice on the wife or the
husband, as the case maybe.5

Maintenance pendente lite means maintenance during the pendency ofthe proceedings.
Section 24 1 uses the expression maintenance pendente lite.Under section 24, the court has
got the power to give monthly maintenance tillthe case is disposed of .6
In Pradeep v. Shailja,7 the court laid down that while awardingmaintenance the court

5
Section 24 of Hindhu Marriage Act

6
Dr.Shivani Goswami,Family Law-1,First edition,pgno;139
7
.AIR 1989 Del 10
 Pleadings Memorandum for Respondent

takes into consideration factors like needs of the claimant, status of the parties, incomes
of petitioner andrespondent and persons entitled to be maintained.

Chitralekha v. Ranjeet Rai,8 while granting interim maintenance thecourt exercises its
discretion and takes into consideration various factors suchas whether a person has got
sufficient means to support himself or herself ornot, what is the status of parties to
marriage, what are needs of the claimant,basic necessities such as food, clothing and
shelter, income of the petitioner and respondent etc. From the date of filing of petition
such maintenance isprovided. The court has got the power to increase or decrease the
amount of maintenance, if there is change in circumstances. The party has to apply for
the same.
Here in the present case tara has no job. She left her previous job inorder to live with
dhruv. She has no independent income in order to maintain herself and she cannot meet
the expenses of the proceedings.

In the case of Jasbir Kaur Seghal v. District Judge, Dehradun ,9 The court laid down that
Section 24, cannot be confined only to giving maintenance to the spouse only. The
womans right to maintenance under the section would be her own maintenance as well as
her child, which in the present case was her unmarried daughter.
While granting maintenance the court will take into consideration only the income of
the person and not other properties or assets.10
In the case of Pushkar Navnital Shah v. Rakhi,,11the contention of thehusband was that
since now daughter has become a coparcenar by way ofAmendment that has been made
in the Hindu Succession Act, in the year2005, the wife now is not entitled to claim
;maintenance. The court turned down the plea of the husband and laid down that no
coparcenar can predicate his/her share in the joint family property till actual partition
takes place. It is necessary that when the court orders to pay maintenance to the spouse, it

should be abided by the parties. Failing which, the court will stay the proceedings of
marital respite.
In granting maintenance pendente lite, conduct of the spouse is immaterial. If the
8
AIR 1977 Del 176
9
AIR 1997 SC 3397

10
1988 cal 83
11
AIR 2007 GUJ 5
 Pleadings Memorandum for Respondent

person is unable to maintain during the pendency of the proceedings, that is sufficient and
such person can ask for maintenance pendente lite. His/ her conduct is immaterial in such
cases.12
3.RESTITUTION OF CONJUGAL RIGHTS
When either the husband or the wife has, without reasonable excuse, withdrawn from the societyof
the other, the 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 ground why the application should not be granted, may decree restitution of conjugal
rights accordingly.13
It is one of the fundamental purposes of a marriage that the spouses must live together and it
is an equally well established rule of matrimonial law that one spouse is entitled to the society
and comfort (consortium)of the other. If, therefore, one spouse leaves the other without any
just cause or excuse, the latter can approach a Court of Law praying for a decree of restitution
of conjugal rights i.e. an order of the Court which says that the spouses must continue to live
together or it directs the defaulting party for the restitution of marital duties and to come and
join other spouse. Provision to this effect has been made in Section 9 of the Hindu Marriage
Act, 1955.
The requirements of the section are:
1. The petitioner could either be husband or wife.
2. The respondent withdraws the society of the petitioner.
3.The withdrawal of the society has been made without any reasonable cause.
4.The petitioner should file a petition in the district court.
5. The court to be satisfied with the truth of the statement and finds that no other reason is there
for denial.
6. Burden of proof of reasonable excuse is on the respondent.14
Here in the present case, the petioner left the respondent without any reasonable cause and of
course without the consent of the respondent.
Unless the withdrawal by one spouse from the society of the other is founded on a reasonable
excuse no decree can be passed under Section 9 of the Act. What is reasonable or just would
be decided in the context of facts and circumstances of each case. The reason for withdrawal
from the society must be 'grave and weighty' and it may be distinct from a matrimonial

12
1(2013)DMC 25
13
Section 9 of Hindu Marriage Act

14
Dr. Shivani Goswami,Family Law -1,1St edition,pgno-39
 Pleadings Memorandum for Respondent

offence.15
In Hardeep Singh v. Smt Dalip Kaur,16the woman wanted to live separately from the parents of the
husband and she insisted her husband to do so. When the husband did not agree to this, she
started living separately from her husband. The husband applied for restitution of conjugal
rights which was granted to him as the woman did not have any justified or reasonable reason
to live separately.

15
Dr.S.R.Myneni,Family law-1,PgNo;207
16
1970 Punj. 284
Pleadings Memorandum for Respondent

III . THE CUSTODY OF THE CHILD SHOULD NOT BE GIVEN TO

THE PETITIONER

1) THE LAWS ARE APPLICABLE TO THE RESPONDENT

A Hindu person has been defined to include Jains, Buddhists and Sikhs also and thus, the law made for
Hindus is also applicable to persons of these religions. The right of custody of a Hindu child is dealt by
the Hindu Minority and Guardianship Act, 1956 together with the Guardians and Wards Act, 1890. The
two statutes have to be read harmoniously and the enforcement of one at the cost of the other is not
permissible.

2) THE DISCRIMINATORY PRACTISE OF GRANTING SUPERIORITY FOR

THE FATHER OVER THE MOTHER FOR GETTING CUSTODY OF THE
MINOR CHILD

The gender bias prevalent throughout the Hindu law of custody has to be reviewed in light of the
upliftment of women in the present era. Section 6(a) of the Hindu Minority and Guardianship
Act and Section 19(b) of the Guardians and Wards Act (unamended) are clearly discriminatory as they
consider father to be the natural guardian over the mother without any rationale.

The Law Commission in its 1989 report has clearly understood this discrimination and has proposed the
laws to be amended in a manner that does not infringe upon the right of equality. On this
recommendation, Section 19(b) of the Guardians and Wards Act was amended to bring the custody rights
of the mother and the father at par but there has been no parallel amendment in the Hindu Minority and
Guardianship Act.

Granting superiority of father over the mother for getting custody of the child is simply beyond any
rationale and this discriminatory practise should not be promoted by the honourable court. This is
completely derogatory to women and undermine their role and influence as parents over the children .it is
unfair that the mother who carries the child for 10 months in her body and gives birth after a number of
painstaking hours is not even given a say in the future of her child and custody of the child is highly cruel
to the mother .
Pleadings Memorandum for Respondent

3) THE TYPES OF CUSTODY IN INDIAN LAW AND FACTORS

DETERMINING THE GUARDIANSHIP OF THE CHILD

A) The various types of Custody

The law concerning custodianship facilitates custodianship of any of the following manner, as directed by
the courts:

 Physical custody
 Legal custody
 Joint physical custody
 Third party custody

Physical Custody
Physical custody awards the custody of a child to a single parent if the other parent is abusive and is considered
unfit for parenting. The parent with the custodial rights will be designated as the primary caretaker and will be in
charge of the child’s emotional, medical and educational needs. For this purpose, the legal guardianship is
bestowed on the person who may potentially serve the child better in terms of these needs.
The earning capacity of the parent isn’t prioritized here, as the parents are assessed based on their potential to
provide a safe and secure environment to the child. If a non-earning parent is bestowed with the custody of a child,
the earning member is accountable to cater to the financial needs of the children.

Joint Physical Custody

The affection of a child is oftentimes impossible to comprehend. Most children, except in certain extreme
scenarios, prefer to side with both their parents. Such a scenario would entitle both the parents to cherish the legal
custody of the child, though physical guardianship would be entrusted to a single parent. Here again, the aspect of
income isn’t prioritized over the potential of the parent to provide a safe and secure environment to the child.

Legal Custody
The option of legal custody bestows the parents with the entitlement of making vital decisions with respect to the
upbringing of a child. The rights so bestowed on them includes the right to cater to the child’s educational, moral,
financial, and medical requirements. These aspects are given prominence as it has a direct bearing on the welfare of
the child.

Third Party Custody

The discretion to bestow the guardianship rights on the hands of a third party are taken when the concerned
adjudicators are of the opinion that neither of the biological parents is considered fit to be assigned with the
custodianship. In this case, the rights are granted to a third person.
Pleadings Memorandum for Respondent

B) The Central Regulation governing the factors determining the guardianship of

the child

The laws concerning the custody of a child are provided in the Guardians and Wards Act of 1890. The
law is enforced on all the religions of the country and is considered in conjunction with the relevant
religious laws. On a precise note, the following aspects are considered while determining the guardianship
of a child:

 The personal law wherein the minor is the subject.

 The age, gender, and religion of the minor.
 The character and capacity of the proposed guardian.
 The relationship of the kin with the minor.
 The wishes of a deceased parent.
 Any existing or prior relations of the proposed guardian with the minor.
 The minor’s capacity to make an intelligent preference.
 The desire of the child.
 The number of siblings in a family – The courts would generally like to keep the children together if
the concerned family has multiple children, and hence would ordain the custodial rights accordingly.
 The comfort, health, material, intellectual, moral and spiritual welfare of the child.

In this case , even after consideration of these regulations it is only fair that the child may be left with
her mother , the Respondent which is the safer and the better option. The petitioner has just suddenly
taken interest in the child as he was not bothered about the child when he threw them out of the
house . the petitioner gave the petition just to mentally harass the Respondent petitioner . The
Respondent is already pregnant with the second child of the Petitioner and the Petitioner is trying to
avoid his responsibilities as father by denying his fatherhood of the child . A father who is not even
interested in the second child showing sudden interest in the custody of the first child just raises
suspicion in the eyes of law .

4) THE HINDU LAWS PERTAINING TO THE GUARDIANSHIP AND CUSTODY

OF THE CHILD
Pleadings Memorandum for Respondent

A) Section 26 in Hindu Marriage Act 1955

Section 26 : In any proceeding under this Act, the court may, from time to time, pass such interim orders
and make such provisions in the decree as it may deem just and proper with respect to the custody,
maintenance and education of minor children, consistently with their wishes, wherever possible, and may,
after the decree, upon application by petition for the purpose, make from time to time, all such orders and
provisions with respect to the custody, maintenance and education of such children as might have been
made by such decree or interim orders in case the proceeding for obtaining such decree were still pending,
and the court may also from time to time revoke, suspend or vary any such orders and provisions
previously made: 1Provided that the application with respect to the maintenance and education of the
minor children, pending the proceeding for obtaining such decree, shall, as far as possible, be disposed of
within sixty days from the date of service of notice on the respondent.

According to Section 26 , the court has the duty to pass any interim orders and decrees with respect to
custody , education and maintenance of minor children consistent to their wishes . In this case , the child
was never mistreated by her mother . in fact when she was thrown out of her own house by her father , her
mother the respondent was the one that took care of her . The sudden interest now of the petitioner in the
custody of the child is just to mentally harass the petitioner .

B) Section 6 of India’s Hindu Minority and Guardianship Act, 1956

Section 6. Natural Guardian: The natural guardians of a Hindu, minor, in respect of the minor’s person as
well as in respect of the minor’s property (excluding his or her undivided interest in joint family
property), are – (a) in the case of a boy or an unmarried girl—the father, and after him, the mother:
provided that the custody of a minor who has not completed the age of five years shall ordinarily be with
the mother; (b) in the case of an illegitimate boy or an illegitimate unmarried girl – the mother, and after
her, the father; (c) in the case of a married girl – the husband.
In this case, Section 6 is highly discriminatory to the mothers and women in general . It is high time that
such ancient laws are amended and the practise of giving importance to the father of the child in the
matter of custody of the child must be stopped .but even if this law is taken into consideration , the child
is below 5 years and in that case she should be ordinarily sent with her mother .

C) Guardians And Wards Act, 1890

 Pleadings Memorandum for Respondent

The said law is applicable to every religion and is pertinent with certain codified and uncodified laws.
These laws are secular, therefore are applicable to each and every child within the Indian territory.
Section 4 of the Guardian and wards act , 1890 defines minor as an individual who is physically and
mentally, and therefore needs a caretaker to look after. The Hindu Minority and Guardianship Act, 1956
exists in accordance with this act.

The court has authority to provide order on guardianship keeping in mind the welfare and therefore
making necessary appointment. By this instruction a guardian declared not by will can be removed. This
acts primarily authorizes the District courts to select the guardians but the high courts can also access this
power.
The court's jurisdiction is guided by the area where the minor usually resides. The court should consider
the preferences and will of the minor taking into consideration that the minor can form a predilection.
In this case , the Court is humbly requested to intervene and appoint the mother as the guardian of the
child and place custody of the child with the mother . The mother of the child should be granted
guardianship to ensure the welfare and best interests of the child and her future .

D) The Hindu Minority And Guardianship Act,1956

In the case , P.N Ramachandra Iyer v S.V Annapurni Ammal17 it was stated that “ The father is preferred
among the parents because of the superiority of the seed” “in the case In absence of the progenitor,
mother is the guardian and in the absence of both of them, the ancestor” .
This means that mother can't be a natural guardian as long as the father of the child is alive. This follows
even after the mother has chased the play of being next friend.
The Orissa High Court in case Sobha Devi v. Bhima,18 lays down the next friend ideology and states that
the mother cannot play the part of being a next friend as long as the father is alive.
The terms of a natural guardianship in case of a Hindu minor are mentioned in Section 6 of the
Guardianship Act. Father is seen as the sole guardian for the child whereas the mother has the custody of
the child below the age of 5 years. All rights for the well-being of the minor is imposed on his/her natural
guardian.
in this case the child was born in 2017 and the cause of action for the case took place in 2021 , and the case was
filed in January 2022 , therefore the child is only 4 years old and according to the Section 6 of the Act the child is
below 5 years and the mother is naturally entitled to the custody and Guardianship of the child .

17
(1964) AIR Ker 269
18
AIR [1975] Ori 180
 Pleadings Memorandum for Respondent

E) Constitutional Validity Of Section 6(A):

Section 6(a) mentions: (Hindu Minority and Guardianship Act)

In the case of a boy or an unmarried girl the father, and after him, the mother: provided that the custody of
a minor who has not completed the age of five years shall ordinarily be with the mother.
In the case of Gita Hariharan v. Reserve Bank of India 19 the validity of section 6(a) was challenged where
the word 'after' was debated, and it was debated whether a mother can be a natural guardian as long as the
father is alive. the term 'after' was describes as in the absence of father. It was further mentioned that this
absence is either temporary or completely (by ailment or otherwise)
Even after this clarification it doesn't change the fact that the father has superior status than the mother
who can only become a natural guardian after the father's death. In a situation of dispute, the mother can
only claim her status as a natural guardian by welfare principle as welfare is of paramount importance
under the said act.
In the case of Padmaja Sharma v. RatanLal Sharma20, the mother had to pay the maintenance for her
minor-child. Even though it may look advancing, it cannot provide equality, as the mother isn't showcased
as a natural guardian and doesn't have any power whatsoever. Certain recent judgements are seen moving
towards gender-equality. This is laudable but we need to move forward and dismantling the 'preferential
status' of the superior father.
The welfare of the minor is of utmost importance, keeping aside the status of the guardian. The Sections 7
and 17 of the Guardians and Wards Act states that the legal system should function for the welfare of the
minor-child. Courts have the power to advent the personal laws that minor has and designate a guardian
based on welfare. The section 13, of the Hindu Minority and Guardianship Act supports the above
statement.
The Supreme Court in ABC v. The State (NCT of Delhi)21, provided us with a great judgment which
states that a women can be a legal guardian of her own child even if she isn't married and it was also
added that she has not obligation to reveal the name of the biological father.

19
[1999] 2 SCC 228
20
AIR 2000 SC 1398
21
AIR [2015] SCC 609
Pleadings Memorandum for Respondent

In the case Bhagyalakshmi v. K NarayanaRao: where before passing the judgement the judge had taken
into consideration the joint-custody then the child would have got both the love and affection of mother
and material welfare from father. [21] But the court set aside the emotions that the child would face as
both parent were in debt.
In this case even if the current regulations are considered the child is below the age of 5 years since she
was born in 2017 and the cause of action took place in 2021. But the respondent maintains the contention
that the said rules are derogatory and are very much discriminatory and shows partiality towards the
father of the child . In that case the Honourable Court is humbly requested to consider the best interests of
the minor child and to allow the mother the custody of the child .in this case the mother is never known to
have done anything against the best interests of the child or to put her child to danger at any point. On the
contrary it was the petitioner who being the father of the child it was the petitioner who cruelly threw out
his wife and the minor child out of the house .the petitioner has caused mental and physical discomfort
and trauma to the child . therefore considering the gender and age of the child and also the previous
attitude of the mother towards her daughter and vice versa and also after considering the cruelty shown by
the petitioner towards the child the custody must be given to the mother of the child .
Prayer Memorandum for Respondent

PRAYER

In the light of issues raised, arguments advanced and authorities cited, the court may
pleaseadjudgeand declare that:

1. Thesuitfiled underSections302 ,326 readwith34 ofIPC arenotmaintainable

2. Thesuicidenotewasnotplantedbyanyoneandthesuspicionastowhetherthedeathwas a
suicide is a valid one
3. ThecollegeauthoritieshadtakenenoughprecautiontyostoptheraggingwhereastheGover
nment was inefficient with the formulation and implementation of laws
4. TheDefendantsdonotwanttoundergothenarcoanalysistestasitisviolationofArticle 20(3)
of the Constitution
5. TheDefendantswanttobecompensatedforthementalagony,defamationandtrauma that
they had to undergo due to the false allegations of the Plaintiffs.
AND

Thecourtmaypassanyotherorderthatitdeemsfitintheinterestofjustice,equityand good
faith.