1
TEAM CODE- 13
PRESENTED BEFORE THE HON’BLE GAUHATI HIGH COURT
INTRA MOOT COURT NEF LAW COLLEGE
MR. ANIL (APPELLANT) VS. MRS. RASHMI (RESPONDANT)
MEMORIAL FOR RESPONDENT
2
TABLE OF CONTENTS
SERIAL NUMBER 1. 2. 3. 4. 5. . #.
TOPIC
Index of Authorities Statement of Jurisdiction Statement of Facts Issues Raised Summary of Arguments Arguments Written Arguments Prayer
INDE$ OF AUTHORITIES REFERRED BOO%S&
1. Commen Commentary tary on on Hindu Hindu La La !y R.". R.". Agar Agara# a#a. a.
PAGE NUMBER 3 4 4 5 -! "-15 1
3
$. %he Code of Ci&i# Ci&i# Procedure Procedure !y !y C." C." %a' %a'ani. ani. (. )odern )odern Hindu Hindu La !y Paras Paras *ia *ian. n. +. %he Constitutio Constitutiona# na# #a #a ,f India !y J.-. Pandey. Pandey. REFFERED CASES&
1 Le'ha &. P. Ani# Ani# "umar "umar A//ea# A//ea# 0ci&i# 0ci&i# 1(1 1(1 of of $223 $223 $ Ram Prasad Prasad &. *istrict *istrict 4udge5 6ora'h 6ora'h/ur75 /ur75 AIR 18$2 18$2 A## A## 98 ( "umar :. :. Jahangi Jahangirdar rdar &s. Chethna Chethna ". Ramateertha5 Ramateertha5 S/ecia# S/ecia# #ea&e /etition /etition 0ci&i# 0ci&i# +$(2
+ 3 < 9 8
; +$(1 of $22( Sa/tmi Sa/tmi &. &. Jagdi Jagdish5 sh5 018< 018<2 2 Ca# Ca# $<$ Shee#a Shee#a &s. &s. Jee&an# Jee&an#a# a# 1899 1899 AP AP $< $< :. =hagat &s. * =hagat =hagat 0188+ 0188+ 1 FCC ((< %hrity Hoshie Hoshie *o#i'u'a *o#i'u'a &. &. Hoshiam Hoshiam Sha&a'sha Sha&a'sha *o#i'u'a5 *o#i'u'a5 AIR 189$ 189$ SC 1$<3 7)t. )ansa )ansa *e&i *e&i &. &. )a'har75 )a'har75 AIR 18(3 Pesh $2< $2< 7In re re )cgrat )cgrath h 0Infan 0Infants7 ts755 0198( 0198( 1 Ch 1+( 1+(
4
STATEMENT STATEMENT OF 'URISDICTION 'URISD ICTION
%he res/ondent hum!#y su!mits this memorandum to the Hon>!#e High Court under section 1801 of Fami#y Courts Act5 189+. STATEMENT OF FACTS
%he marriage !eteen the a//e##ant and the res/ondent as so#emni?ed on (1@21@$22+ as /er the Hindu Re#igious Rites and Customs. A son Rahu# as !orn and is 11 years o#d no. He is a#so academica##y exce/tiona#. At the time of marriage5 the Res/ondent as a =usiness )an in 6ermany. After marriage5 the A//e##ant and the Res/ondent #i&ed together for ( months and thereafter #i&ed se/arate#y and the a//e##ant ent !ac' to 6ermany !ecause of the misunderstandings !eteen them. ,n#y during !usiness tri/s to India5 he &isited his son ho #i&ed ith the mother in her f#at5 hich as gifted to her !y her /arents as Stridhan. With Stridhan. With e&ery &isit of the hus!and5 the misunderstandings !eteen the s/ouses !ecame aggra&ated and he started uestioning the character and mora#ity of the ife. %he ife a#ays tried her #e&e# !est to sa&e their marriage. In the recent 12 days tri/ of )r. Ani#5 he stayed ith his ife in her /#ace. *uring the stay5 the harassment and crue#ty of the a//e##ant crossed the extreme extent for hich the res/ondent as com/e##ed to fi#e a /etition for di&orce on the ground ground of crue#ty crue#ty.. %he hus!an hus!and d fi#ed an origina# /etition under the 6uardians and Wards Act51982 for the custody of 12 years o#d son and a#so a /etition for Restitution of Con4uga# Rights. Rights. %he Princi/a# Princi/a# Judge of Bda#guri Bda#guri Fami#y Court /assed an ex@ /arte decree of di&orce di&orce in fa&our of the ife and the /etition for Restitution of Con4uga# Rights fi#ed !y the A//e##ant as dismissed for defau#t. After considering the ora# e&idence adduced !y the /arties and examining the documentary e&idence and a#so inter&ieing the chi#d5 the %ria# Court came to the conc#usion 'ee/ing in &ie that e#fare of the chi#d5 the custody shou#d !e gi&en to the mother and dismissed the origina# /etition of the father fi#ed under the 6uardians and Wards Act. %he hus!and fi#ed an a//ea# !efore the High Court against the order of the %ria# Court.
5
ISSUES RAISED
1. Whether the A//e##ant )r. Ani# has the #ocus standi sta ndi to fi#e an a//ea# in the High court $. Wi## remarriage of the res/ondent re s/ondent amounts to termination of guardianshi/ (. Whether the decision of the su!ordinate court of dismissing the /etition for restitution of con4uga# right as 4ustified +. Whether the custody of the chi#d to his mother i## !e detrimenta# to his /hysica# and menta# e#fare And hether the financia# condition of the mother sha## !e ta'en into consideration hi#e gi&ing aay the custody of the chi#d . Whether the act of the hus!and 0accusation of unchastity actua##y amounted to crue#ty toards his ife
6
SUMMAR OF ARGUMENTS
It is Hum!#y su!mitted that5 1. W*+*, +* *//0+ *//0+ M,. M,. A0/ +* / +06 + 7/* 0 */ */ 0 +* H8 C,+9
-o5 the a//e##ant )r. Ani# does not ha&e ha&e the #ocus standi to fi#e an a//ea# in the High Court. S*+0 " of Ci&i# Procedure Code5 1829 states the $ conditions reuired to a//ea# in the
High Court5 of hich the a//e##ant does not fu#fi## the second condition5 i.e.5 the /arty a//ea#ing must !e ad&erse#y affected !y the decree /assed. In our case5 custody of the chi#d as ne&er ith the father in the first /#ace hence the decree /assed !y the %ria# Court of granting custody of the chi#d to the mother has not ad&erse#y affected the a//e##ant. 2. W// ,*:,,8* 7 +* ,*06*0+ :0+ + +*,:0+0 +*,:0+ 0 7 8,609 8,60 9
Remarriage of the res/ondent i## not amount to termination of guardianshi/. )inority And 6uardianshi 6uardianshi/ / Act5 183 /ro&ides /ro&ides for@ Welfare of S*+0 13 of the Hindu )inority minor to be paramount consideration.S*+0 1# of 6uardians And Wards Act5 1982 states that5 D Matter to be considered by the Court in appointing guardian.” .
%he #earned 4udges in /re&ious 4udicia# decision 1 he#d that5 the remarriage of the mother cannot !e ta'en as a ground for not granting the custody of the chi#d to the mother. %he /aramount consideration shou#d !e gi&en to the e#fare of the chi#d.
1 Le'ha &s P. Ani# "umar on $1 -o&em!er A//ea# A//ea# 0ci&i# 1(1 of $223
7
Hence in the /resent case5 the res/ondent5 )rs. Rashmi>s remarriage does not amount to termination of guardianshi/. 3. W*+ W*+*, *, +* 6*0 6*0 7 +* ;,60+ ;,60+* * ,+ 7 6:08 6:08 +* *++0 *++0 7, ,*+++0 7 0<8/ ,8+ <+7*69
%he decision of the su!ordinate court of dismissing the /etition for restitution of con4uga# rights is &ery much 4ustified. S*+0 " of Hindu )arriage Act5 18 /ro&ides for Resti tution ,f Con4uga# Rights.
=ut here5 there is no uestion for decree of restitution of con4uga# rights5 !ecause a decree of di&o di&orce rce has has a#read a#ready y !een !een /ass /assed ed !y the the Hono Honour ura! a!#e #e Fami Fami#y #y Cour Court. t. A di&o di&orce rce mean meanss /ermanent termination of marriage and the /arties no #onger retain the status of hus!and and ife5 hence the rights and o!#igations o!#igations of the s/ouses s/ouses are terminated terminated and they !ecome free to remarry. 4. W*+*, +* +6= +6= 7 +* /6 /6 + :+*, >// ;* 6*+,:*0+/ 6*+,:*0+/ + =/ 06 :*0+/ >*/7,*9 A06 >*+*, +* 700/ 06+0 7 +* :+*, // ;* +?*0 0+ 06*,+0 >/* 8@08 >= +* +6= 7 +* /69 0A%he custody of the chi#d to his mother i## not !e detrimenta# to his /hysica# and
menta# e#fare. S*+0 1# of 6uardians 6uardians and Wards Wards Act5 1982 /ro&ides@ /ro&ides@ Matter to be considered by the Court in appointing guardian. S*+ S* +0 0 13 of Hindu )inority and 6uardianshi/ 6uardianshi/ Act5 Act5 183 states Welfare of minor to be paramount consideration. consideration.
8
In our case5 Rahu# 0minor son5 !eing high#y ta#ented and ca/a!#e enough to ma'e ise /references5 ex/ressed his i##ingness to stay ith his mother. %his has a#ready a#r eady !een /ro&ed !y the %ria# %ria# Court ear#ier in granting the custody to )rs. Rashmi 0mother. 0= -o5 the financ financia# ia# condit condition ion of the mother mother sha## sha## not !e ta'en ta'en into into consid considera eratio tion n hi#e hi#e gi&ing aay the custody of the chi#d. It has !een he#d !y the A##aha!ad HC $ that the ord De#fareE De#fareE does not on#y mean materia# materia# !ut mora# e#fare as e## and in our case5 gi&ing the custody to the father i## de/ri&e the chi#d from his mora# e#fare as the father !eing a !usinessman and ha&ing to go on !usiness tri/s i## not !e a!#e to de&ote ua#ity ua#ity time to his son. 5. W*+*, +* + 7 7 ;06 (*6 7 0++=) +//= :0+ + ,*/+=9 es5 es5 the act of hus!and 0accused of unchastity actua##y amounts to crue#ty. In /re&ious 4udicia# decisions(5 he#d that if a s/ouse is su!4ected to fa#se accusations of adu#tery or fa#se charges of immora#ity5 it ou#d ma'e married #ife im/ossi!#e to !e endured and ou#d ma'e a &ery unha//y and misera!#e existence. %his ty/e of crue#ty is orse than the acts of /hysica# crue#ty. In our case5 the a//e##ant raised a##egations that my c#ient )rs. Rashmi is indu#ged in i##ega# intimacy ith another man5 it made married #ife im/ossi!#e to !e endured !eteen the s/ouses a#so the harassment and crue#ty crossed the extreme extent. Hence the res/ondent fi#ed a /etition for di&orce on the ground of crue#ty.
2 Ram Prasad &. *istrict 4udge5 6ora'h/ur75 AIR 18$2 A## 98 3 Saptmi v. Jagdish 018<2 Ca# $<$
9
WRITTEN ARGUMENTS
It is Hum!#y su!mitted that5 1. W*+*, +* *//0+ *//0+ M,. M,. A0/ +* / +06 + 7/* 0 */ */ 0 +* H8 C,+9
-o5 the a//e##ant )r. Ani# does not ha&e ha&e the #ocus standi to fi#e an a//ea# in the High Court. S*+0 " of Ci&i# Procedure Code5 1829 states the $ conditions are reuired to a//ea# in the
HC5 of hich the a//e##ant does not fu#fi## the second condition5 i.e.5 the /arty a//ea#ing must !e ad&erse#y affected !y the decree /assed. In the instant case5 it as not #i'e he as en4oying the custody of the chi#d for a## these years. In fact5 he ne&er had the custody of the chi#d in the first /#ace. %i## date the chi#d has !een ta'en ta'en care and #oo'ed #oo'ed after after on#y on#y !y his mother mother.. In the case of Kumar V. Jahangirdar Jahangirdar vs. Chethna K. Ramateertha 45 it as he#d that hi#e aarding custody of chi#d to anyone5 the on#y touchstone is interest and e#fare of the chi#d and nothing e#se. Con&enience and /#easure of the /arents is tota##y immateria#. %herefore the facts of our case re&ea# that on#y on the account of dis/#easure and no #ega# right !eing &io#ated of the hus!and5 the decision of the Honora!#e Fami#y Court of gi&ing the custody of the chi#d to mother and dismissing the /etition of the father did not harm him in any /ossi!#e /ossi!#e ay. 2. W// ,*:,,8* 7 +* ,*06*0+ :0+ + +*,:0+0 7 8,609
Let us ta'e you !ac' to $2235 in a #andmar' 4udgment gi&en !y SC in the case of Lekha vs. P. P. Anil Kumar 5 here it as c#ear#y he#d that5 the remarriage of the mother cannot !e ta'en as a 4 S/ecia# #ea&e /etition 0ci&i# +$(2 ; +$(1 of $22( 5 Appeal (civil) 5131 of 26
1
ground for not granting the custody of the chi#d to the mother. %he /aramount consideration shou#d shou#d !e gi&en to the e#fare of the chi#d. %he %he #a /ermits /ermits a /erson to ha&e the custody of his minor chi#d. %he father ought to !e the guardian of the /erson and /ro/erty of the minor under ordinary circumstances. %he fact that the mother has married again after the di&orce of her first hus!and is no ground for de/ri&ing the mother of her /arenta# right of custody and a#so the court forms the im/ression that the mother is a norma# and inde/endent young oman and shos no indication of im!a#ance of mind in her5 then in the end the custody of the minor chi#d shou#d not !e refused to her or e#se e ou#d !e rea##y assenting to the /ro/osition that a second marriage in&o#&ing a mother mother /er se i## o/erate ad&erse#y to a c#aim of a mother for the custody of her minor chi#d. A#so A#so the #earned #earned 4udges 4udges in /re&io /re&ious us 4udicia 4udicia## decisi decision on of Sheela vs. Jeevanlal 6 5 he#d that a mother cannot !e de/ri&ed of custody5 4ust !ecause she has remarried. In the instant case5 the uestion raised as on remarriage of the res/ondent mother. =ut on#y !ecause of the fact that she remarried5 i## not act as a ground for termination of her guardianshi guardianshi/. /. As the fact re&ea#s that5 after examining examining the documentary documentary e&idence and a#so inter&ieing the chi#d ho is /referring to #i&e ith his mother5 are enough for us to conc#ude that /ro/er e#fare can on#y !e attained if the !oy is a##oed to stay in the custody of the res/ondent. 3. W*+ W*+*, *, +* 6*0 6*0 7 +* ;,60+ ;,60+* * ,+ 7 6:08 6:08 +* *++0 *++0 7, ,*+++0 7 0<8/ ,8+ <+7*69
%he decision of the su!ordinate court of dismissing the /etition for restitution of con4uga# rights is &ery much 4ustified. S*+0 " of Hindu )arriage Act5 18 /ro&ides for Resti tution ,f Con4uga# Rights. 6 1899 AP $<
11
=ut here5 there is no uestion for decree of restitution of con4uga# rights5 !ecause a decree of di&o di&orce rce has has a#read a#ready y !een !een /ass /assed ed !y the the Hono Honour ura! a!#e #e Fami Fami#y #y Cour Court. t. A di&o di&orce rce mean meanss /ermanent termination of marriage and the /arties no #onger retain the status of hus!and and ife5 hence the rights and o!#igations o!#igations of the s/ouses s/ouses are terminated terminated and they !ecome free to remarry. Here in the instant case5 the marriage of )rs. Rashmi 0res/ondent and )r. Ani# 0a//e##ant as so#emni?ed on (1 st January5 $22+ $22+ as /er the Hindu re#igious re#igious rites and customs. customs. After marriage5 the A//e##ant and the res/ondent #i&ed together for ( months and thereafter #i&ed se/arate#y !ecause of the misunderstanding !eteen them. %herefore5 the a//e##ant ent !ac' to 6ermany to resume his !usiness. Later out of the said ed#oc' a son5 name#y Rahu# as !orn ho is 11 years o#d no ith exce/tiona# academic record. Whene&er the hus!and had !usiness tri/s to India5 hich norma##y ere not more than $@( days5 he a#ays &isited his son ho #i&ed ith the mother in her f#at5 hich as gifted to her !y her /arents as Stridhan. =ut I am sorry to say5 ith e&ery &isit of the hus!and5 the misunderstandings !eteen the s/ouses !ecame aggra&ated and he started uestioning the character and mora#ity of the ife. In fact5 it as my c#ient ho as trying her #e&e# !est to sa&e their marriage and !eing a Hindu5 she a#ays had regarded marriage to !e a sacred institution. =ut a## her efforts ent in &ain. In the recent tri/ of )r. Ani#5 hich as to #ast for 12 or more days5 he stayed ith his ife in her /#ace. *uring the stay5 the harassment and crue#ty of the a//e##ant crossed the extreme extent the res/ondent as com/e##ed to fi#e a /etition for di&orce on the ground of crue#ty. %he fact that crue#ty amounts to di&orce has !een s/ecifica##y gi&en under S*+0 13 (1) () of the Hindu )arriage Act5 18. It states that@
12
(1
An!
marriage
s"lemni#ed$
%hether
&e'"re
"r
a'ter
the
"mm "mmen ene eme ment nt "' the the At$ At$ ma! ma!$ "n a )eti )etiti ti"n "n )re )resent sented ed &! eith either er the the hus& hus&an and d "r the %i'e$ &e diss"lved diss "lved &! a deree "' div"re "n the gr"und that the "ther )art!* (ia (ia has$ has$ a'ter 'ter the the
s"le s"lemn mni# i#at ati" i"n n
"'
the the
marr marria iag ge$ tre treated ted
the the
)etit etiti" i"ne nerr
%ith %ith
ruelt!. It as o!ser&ed in V. +hagat vs. , +hagat - that menta# crue#ty in S*+0 13 (1) ( can !e !road#y defined as that conduct hich inf#icts u/on the other /arty such menta# /ain and suffering as ou#d ma'e it not /ossi!#e for that /arty to #i&e ith the other. )enta# crue#ty must !e of such a nature that the /arties cannot reasona!#y !e ex/ected to #i&e together. %he situation must !e such that the ronged /arty cannot reasona!#y !e as'ed to /ut u/ ith such conduct and continue to #i&e ith the other /arty. It is not necessary to /ro&e that the menta# crue#ty is such as to cause in4ury to the hea#th of the /etitioner. 4. W*+*, +* +6= +6= 7 +* /6 /6 + :+*, >// ;* 6*+,:*0+/ 6*+,:*0+/ + =/ 06 :*0+/ >*/7,*9 A06 >*+*, +* 700/ 06+0 7 +* :+*, // ;* +?*0 0+ 06*,+0 >/* 8@08 >= +* +6= 7 +* /69 0A%he custody of the chi#d to his mother i## not !e detrimenta# to his /hysica# and
menta# e#fare. S*+0 1# of 6uardians and Wards Act5 /ro&ides@ Matter to be considered by the Court in appointing guardian.
n a))"inting "r delaring the guardian "' a min"r$ the C"urt shall$ su&/et t" the )r"visi"ns "' this seti"n$ &e guided &! %hat$ "nsistentl! %ith the la% t" %hih the min"r is su&/et$ a))ears
in
the
irumstanes
t"
&e
'"r
the
%el'are
"'
the
min"r.
' the min"r is "ld en"ugh t" '"rm an intelligent )re'erene$ )re'erene$ the C"urt ma! "nsider that
7 0188+ 1 FCC ((<
13
)re'erene. 0he C"urt shall n"t a))"int "r delare de lare an! )ers"n t" &e a guardian against his %ill. Hindu u )ino )inori rity ty and and 6uard 6uardian iansh shi/ i/ Act5 Act5 state statess Welfar S*+0 S*+ 0 13 of Hind lfaree of mino minorr to be paramount consideration. consideration.
In the instant case5 the %ria# Court came to the conc#usion 'ee/ing in &ie that e#fare of the chi#d5 the custody shou#d !e gi&en to the mother. %he chi#d ou#d not ha&e had such !ri##iant academic record and there ou#d ha&e !een no i##ingness on the /art of the chi#d to stay in the custody of the mother5 if her custody ou#d ha&e !een detrimenta# to his /hysica# and menta# e#fare. %he g#im/se of e#fare can !e ta'en as the /aramount consideration for custody of the chi#d5 can !e traced in the case of 0hrit! "shie ,"likuka v. "shiam Shavaksha ,"likuka 25 here the court he#d that G%he /rinci/#es of #a in re#ation to the custody of a minor a//ear to !e e##@esta!#ished. It is e## sett#ed that any matter concerning a minor5 has to !e considered and decided on#y from the /oint of &ie of the e#fare and interest of the minor.G %herefore5 the custody of the chi#d to his mother has /ro&ed to !e !eneficia# for the o&era## groth and e#fare of the chi#d ho seems to !e ha//y in his /resent situation. 0= If the o//osition o//osition /arty so ants to uestion the financia# condition condition of my c#ient in ta'ing consideration hi#e gi&ing aay the custody of her chi#d5 then #et us ma'e them aare that my c#ient #i&ed se/arate#y in her on f#at 4ust after ( months of their marriage5 and has !een #i&ing there since then. She ons #and and a#so has /ro/erties in her name. She as aare that once she #ea&es the hus!and #ega##y5 she is not entit#ed for the maintenance hich she as recei&ing from him5 !ut sti## she anted
8 AIR 189$ SC 1$<3
14
the di&orce. %his /articu#ar act /ro&es that she as financia##y sound enough to ta'e care of herse#f and her son. %he #earned 4udges in /re&ious 4udicia# decisions of 3t. 3ansa ,evi v. 3akhar 3akhar 5 )idd#eton J.5 c#arified that the ord Ge#fareG meant !oth materia# and s/iritua# e#fare of the minor. In Ram Prasad v. ,istrit /udge$ "rakh)ur 15 the A##aha!ad High Court he#d that the ord 7e#fare7 meant not on#y materia# !ut 7mora#7 e#fare as e##. Fo##oing the facts of the instant case5 the chi#d is academica##y exce/tiona# and a#so is &ery ha//y in staying ith his mother hich as /ro&ed during the inter&ie of the chi#d. =ut during his ear#y schoo# days it is &ery norma# for a !oy of such tender age in not 'noing to decide hat is right and hat is not and hence ithout ha&ing any ma#afide intention5 as caught stea#ing his c#assmate>s /ersona# !e#onging. %he res/ondent as not informed a!out her son>s mischief unti# the son as caught again !y the schoo# authority. %he res/ondent !eing a #a a!iding citi?en and ha&ing high mora# senses5 as e&ery caring mother ou#d5 taught her son the ethica# &a#ues of #ife and hence no such act as e&er re/eated !y him. %he ng#ish #a5 no #ess than Indian #a5 #ays em/hasis /rimari#y on the e#fare of the chi#d. In Re 3grath (n'ants 115 Lind#ey J.5 said D%he dominant matter for the consideration of the court is the e#fare of the chi#d. =ut the e#fare of the chi#d is not to !e measured !y money on#y5 or !y /hysica# comfort on#y. %he ord Ge#fareG must !e ta'en in its idest sense.E =earing these /rinci/#es in mind5 e can say the e#fare of the minor can on#y !e attained if he remains in the custody of the mother. 5. W*+*, +* + 7 7 ;06 (*6 7 0++=) +//= :0+ + ,*/+=9 9 AIR 18(3 Pesh $2< 1 AIR 18$2 A## 98 11 0198( 1 Ch 1+(
15
es5 es5 the act of hus!and 0accused of unchastity actua##y amounts to crue#ty. In Sa)tami vs. Jagdish 175 the hus!and constant#y ca##ed the ife a /rostitute5 a oman of the street. It as he#d in this case5 that if a s/ouse is su!4ected to fa#se accusations of adu#tery5 insu#t insu#ts5 s5 humi#i humi#iatio ations5 ns5 a!uses5 a!uses5 fa#se fa#se charg charges es of immora# immora#ity ity55 it ou#d ou#d ma'e ma'e married married #ife im/ossi!#e to !e endured and ou#d ma'e a &ery unha//y and misera!#e existence. %his ty/e of crue#ty is orse than the acts of /hysica# crue#ty. In the instant case5 hene&er )r. Ani# had !usiness tri/s to india5 he ou#d &isit his son ho #i&e #i&ed d ith ith his his moth mother er !ut !ut I am sorr sorry y to say say5 ith ith e&er e&ery y &isi &isitt of the the hus! hus!an and5 d5 the the misunderstandings !eteen the s/ouses !ecame aggra&ated and the he started uestioning the character5 mora#ity and a#so a##eged the res/ondent of ha&ing i##ega# intimacy ith another man. In the recent tri/ of )r. Ani#5 hich as to #ast for 12 or more days5 he resided at his ife>s /#ace. *uring the stay5 s tay5 the the harassment and crue#ty of the a//e##ant crossed the extreme extent and the res/ondent as com/e##ed to a//roach the court of #a to see' 4ustice from such 'ind of crue#ty and hence she fi#ed a di&orce /etition on the ground of crue#ty. S*+0 13 (1) () of the H06 M,,8* A+ 1"55 s/ecifica##y states that@
(1 An! marriage s"lemni#ed$ %hether &e'"re "r a'ter the "mmenement "' the At$ ma!$ "n a )etiti"n )resented &! either the hus&and "r the %i'e$ &e diss"lved &! a deree "' div"re "n the gr"und that the "ther )art!* (ia has$ a'ter the s"lemni#ati"n "' the marriage$ treated the )etiti"ner %ith ruelt!. &entua##y the Honoura!#e Fami#y Court /assed an ex@ /arte decree of di&orce in fa&our of the res/ondent.
12 018<2 Ca# $<$
16
17
PRAER
In #igh #ightt of the the uest uestio ions ns /rese resen nted5 ted5 and and arg argumen uments ts ad&a ad&an nced ced5 the the agen agentt for for the the Res/ondent most hum!#y and res/ectfu##y /rays !efore this Honoura!#e Court5 that it may !e /#eased to ad4udge and dec#are that the custody of the minor chi#d shou#d remain in hands of the res/ondent 0mother so that the chi#d>s e#fare is continued to !e ta'en in the idest sense inc#uding /hysica#5 menta#5 ethica# and s/iritua# #e&e#.
