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WRITTEN SUBMISSION BY THE RESPONDENT
RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW, IIT KHARAGPUR
BEFORE THE HONOURABLE HIGH COURT OF RAJASTHAN
APPEAL No.-____/2014
UNDER ARTICLE 227(1) OF THE CONSTITUTION OF INDIA, 1950
In the matter of,
Appellant: Vandana (Smt.)
Versus
Respondent: Suresh Charan
Respondent Represented By Counsel: Debashish Dash, Counsel Id: 14IP60012
MEMORIALON BEHALF OF THE RESPONDENT
TABLE OF CONTENTS
A) List of Abbreviations iii
B) Act/Rules/Statutes Referred iv
C) Books Referred iv
D) Cases Referred v
STATEMENT OF JURISDICTION vi
STATEMENT OF FACTS vii
ISSUES RAISED 8
SUMMARY OF ARGUMENTS 9
ARGUMENTS ADVANCED 9
That, the respondent is justified to get divorce under section 13 of Hindu Marriage Act, 1955 as he has been kept in dark about the mental disorder of the appellant for six long years which rendered the marriage a non-consummated one .
That, the Trial Court proved the veracity of the charges of mental illness of the appellant by carefully examining pertinent medical documents and witnesses, so the presence of mental sickness cannot be challenged and it's on record that the appellant did not bring the doctors who were treating her to refute the charges and also did not appear herself to give testimony.
That , the question of filing petition after inordinate delay has no rationality as far as this case is concerned, where the appellant hardly stayed for four to six days with the respondent, giving him no opportunity to start doubting. Hence, this allegation should be certified baseless.
That, the propagation of argument that she was non-aggressive cannot be in favor of the anyone because mere suffering of those kinds of mental illness makes her straight out uninterested for discharging matrimonial duties, in the absence of which it is absolutely fair to assume that the other party is not expected to live with such a lunatic person. Hence divorce decree should be granted as per section 13(iii) of Hindu Marriage Act.
PRAYER 13
List of Abbreviations
AIR
-
All India Reporter
Art.
-
Article
O.J.R.
-
Other Journal Reporter
HMA.
-
Hindu Marriage Act, 1955
Hon'ble
-
Honorable
Ors.
-
Others
Mad.
-
Madras
P & H
-
Punjab and Haryana
Raj
-
Rajasthan
SC
-
Supreme Court of India
SCC
-
Supreme Court Cases
V
-
Versus
Vol.
-
Volume
Act/Rules/Statutes Referred
Constitution of India, 1950
List of Statutes
Hindu Marriage Act, 1955.
The Code of Civil Procedure, 1908.
Books Referred
S.no.
Author & Title of the Book
Modern Hindu Law, Dr.Paras Diwan (Twentieth Edition,2011)
Cases and Materials on Family Law,Kusum(Universal Law House,2010)
Cases Referred
S.no.
Case List
Page no.
Tarlochan Singh v. Jit Kaur, AIR 1986 P&H 379
11
Ram Narain Gupta v. Rameshwari Gupta, AIR 1988 SC 2260
11,12
Alka Sharma v. Chandra Sharma, AIR 1991 MP 205
11
L. Hemalatha v. N.P. Jayakumar, AIR 2008 Mad 98
11
Pankaj Mahajan vs Dimple @ Kajal, 2011 (2) O.J.R. 715 (S.C.)
12
STATEMENT OF JURISDICTION
The respondent accepts the jurisdiction of the Honorable High Court of Rajasthan, invoked by the Petitioner under Article - 227 of the Constitution of India coupled with Sec.100(1) of Civil Procedure Code .
The respondent most humbly and respectfully submits to the jurisdiction of the Honorable High Court of Rajasthan. .
STATEMENT OF FACTS
Factual Background:
1. On 6th December 1994, One Suresh Charan (Respondent) got married to one Ms Vandana(Appellant) and the marriage was solemnized in accordance with Hindu Marriage Act,1955.
2. It was alleged that even during the marriage the appellant had no control over her body and was not in a position to perform saptpadi. She was given few tablets during the time when the rites were being carried out.
3. Thereafter, the marriage was not being consummated as she hardly stayed with the respondent for four days. Even during that brief period her behavior and conduct was very abnormal and talks were irrelevant.
4. After about six years, the appellant was brought to her in-law's village, where she allegedly used derogatory words towards her husband in presence of many people and this incident was known to the whole village, which, in totality, led to a conclusion that she was suffering from mental disorder. It was also admitted by the brother that she was suffering from mental sickness and that she was undergoing some treatment for the said reason.
5. Thereafter the husband filed a divorce petition which was resisted by the appellant at that time, citing some reason alluding to the wrong on the part of the defendant that he didn't try for taking his spouse from her parental home as he was preparing for some competitive examinations.
6. It was also alleged that after the marriage, the respondent was unemployed for six years and was preparing for competitive test and only after clearing the Rajasthan Administrative Services Examination, he started disliking her and tried to marry a more attractive girl, apart from allegedly passing satirical remarks to the appellant for not bringing enough dowries to the husband's house.
7. The husband, then, sought an amendment to the petition to include the ground to challenge the marriage itself, as he alleged that his wife was mad at the time of marriage itself and hence the marriage be declared void due to concealment of material fact under section-12 of Hindu Marriage Act, 1955. But, this was not allowed by the court as it rightly pointed out the time barred provision of section-12.
8. Then, however, the Trial court advanced with the divorce petition, and as the trial continued the wife was found to be suffering from mental disorder and schizophrenia, as opined by the medical board. Thereafter, considering facts and evidences, the court granted the decree of divorce.
Hence, THE PRESENT CASE is filed Before This Honorable Court.
ISSUES RAISED
Whether mental illness of such a kind which leads to non consummation of marriage inevitably becomes a ground for divorce?
Whether the subjectivity of "ascertaining if someone can be expected to live with his or her mentally ill spouse or not", becomes paramount while deciding a divorce decree?
SUMMARY OF ARGUMENTS
That, the respondent is justified to get divorce under section 13 of Hindu Marriage Act, 1955 as he has been kept in dark about the mental disorder of the appellant for six long years which rendered the marriage a non-consummated one .
That, the Trial Court proved the veracity of the charges of mental illness of the appellant by carefully examining pertinent medical documents and witnesses, so the presence of mental sickness cannot be challenged and it's on record that the appellant did not bring the doctors who were treating her to refute the charges and also did not appear herself to give testimony.
That , the question of filing petition after inordinate delay has no rationality as far as this case is concerned, where the appellant hardly stayed for four to six days with the respondent, giving him no opportunity to start doubting. Hence, this allegation should be certified baseless.
That, the propagation of argument that she was non-aggressive cannot be in favor of the anyone because mere suffering of those kinds of mental illness makes her straight out uninterested for discharging matrimonial duties, in the absence of which it is absolutely fair to assume that the other party is not expected to live with such a lunatic person. Hence divorce decree should be granted as per section 13(iii) of Hindu Marriage Act.
ARGUMENTS ADVANCED
ISSUE I
Whether mental illness of such a kind which leads to non consummation of marriage inevitably becomes a ground for divorce?
1. The Respondent (husband) is entitled to obtain the decree of divorce because of the mental illness as per Hindu Marriage Act, 1955.
The rationale behind having section 13(1) (iii) in the statute book of Hindu Marriage Act is to give relief to the plaintiff if the other party is of unsound mind. In a case where the disease of schizophrenia had been deliberately concealed from the husband at the time of marriage, the husband was within his legal right under section- 13(1) (iii) to move the court for a decree of dissolution of marriage, if not for annulment of the said marriage.
Though the reasoning that "mere branding of a mental illness like schizophrenia is not sufficient to make a compelling ground for divorce" is fully maintainable, we should also make it amply clear that "the schizophrenic person can be of such a type that his or her abnormal and erratic behavior may make him or her unfit for being a life partner"3, which in turn leads to an unsatisfactory non-consummation of marriage.
However, the medical expert opinion cannot be disputed citing some conjecture by the defendant, unless fails to disprove that. And, "such a medical testimony being the evidence of experts would not leave the court from the obligation of satisfying itself on the point in issue beyond reasonable doubt"4. Hence, the pleading by the appellant-defendant to not rely the medical board evidence is completely frivolous.
Now, this Honorable court would be fully justified to draw any adverse inference against the defendant because of her non- appearance in the witness box. Moreover, no satisfactory explanation has been forwarded for her absence; hence, the court cannot prove the extent and degree of her mental disorder.
ISSUE II
Whether the subjectivity of "ascertaining if someone can be expected to live with his or her mentally ill spouse or not", becomes paramount while deciding a divorce decree?
1: The respondent is fully within law to get divorce decree as the he cannot reasonably be expected to live with sick women as per section 13 HMA, 1955.
As per the language used in section 13(1)(iii), when lunacy gets juxtaposed with unreasonable expectation to live with a mentally sick person, then it undoubtedly becomes a ground for divorce, as the marital obligations are not performed in such a condition and cohabitation becomes extinct.
Though cruelty was not meted out to the respondent as such, the very ground that she was not living with the her husband and after six years insulted him in his village for whatsoever reason, even if not knowingly, amounts to unkindness and mental suffering on part of the husband, who may get relief by obtaining a decree of divorce5.
Inordinate delay to submit the divorce petition, as argued by the appellant, would be far from truth as the respondent was not given any chance to raise doubt or check the medical condition himself to establish the facts. The paternal family's stand on this question should raise many eyebrows as their stand hasn't been consistent; at one time they accepted the mental disorder but were making a volte-face in the court putting objection to the expert medical opinion.
Therefore, the situation at hand amounts to "mental disorder of such a nature that the husband is justified to have reasonable apprehension that it would not be possible or safe for the defendant to live with such a schizophrenic spouse and hence a ground for divorce"6.
PRAYER
Wherefore in the light of the facts stated, issues raised, authorities cited and pleadings advanced, it is most humbly prayed before this Honorable Court that it may be graciously pleased to:
1. Kindly dismiss the appeal by the defendant who wants to rescind the divorce decree given by the Trial Court under Hindu Marriage Act.
And, pass any other order that it deems fit in the interest of justice, equity and good conscience. All of which is respectfully submitted.
Respectfully Submitted on behalf of the respondent
Debashish Dash
Counsel No. 14IP60012
Counsel for the respondent
Date: 26th August 2014
Place: IIT, Kharagpur
Rajiv Gandhi School Of Intellectual Property Law, IIT Kharagpur 2
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Tarlochan Singh v. Jit Kaur, AIR 1986 P&H 379
Ram Narain Gupta v. Rameshwari Gupta, AIR 1988 SC 2260
3 Alka Sharma v. Chandra Sharma, AIR 1991 MP 205
4 L. Hemalatha v. N.P. Jayakumar, AIR 2008 Mad 98
5 Pankaj Mahajan vs Dimple @ Kajal, 2011 (2) O.J.R. 715 (S.C.)
6 Ram Narain Gupta v. Rameshwari Gupta, AIR 1988 SC 2260