Memorial (1).docx

BEFORE THE HONABLE COURT OF ALIPORE

IN THE MATTER OF

MR. DHARMENDAR SINGH

PETITIONER

v.

MRS. SWARUPA SINGH

MEMORANDUM ON BEHALF OF THE PETITIONER

RESPONDENT

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TABLE OF CONTENTS

Table of contents

List of Abbreviations

Index of Authority

Statement of Jurisdiction

Statement of facts

Statement of Issues

Summary of Arguments

Arguments advanced

Prayer

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LIST OF ABBREVIATIONS

Sl. No.

Abbreviations

Expansions

1.

v.

Versus

2.

AIR

All India Reporter

3.

HC

High Court

4.

SC

Supreme Court

5.

SCC

Supreme Court Cases

6.

Ors.

Others

7.

Anr.

Another

8.

HON’BLE

Honorable

9.

Art.

Article

10.

IPC

Indian Penal Code

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INDEX OF AUTHORITIES

CASES REFFERED: 1. 2. 3. 4. 5. 6. 7. 8.

Binod Anand Lakra v. Smt. Belulah Lakra and Anr. Pat 213, 1982 (30) BLJR 372 Subrata Kumar Bannerjee v. DiptiBannerjee AIR 1974 Cal 61, 77 CWN 944 A.J. Tulloch v. M.P. Tulloch and Anr. AIR 1975 Cal 243, 79 CWN 157 Arun Kumar Aggarwal v. RadhaArun and Anr. ILR 2004 KAR 808,2003 (6) KarLJ 120 Sikha Singh v. Dina Chakrabarty and Ors. Air 1982 Cal 370, 86 CWN 901 Dr. N.G. Dastane v. Mrs. S. Dastane AIR (1975) 2 SCC 326 GananathPattnaik v. State of Orissa AIR (2002) 2 SCC 619 Vinita Saxena v. Pankaj Pandit AIR (2006) 6 SCC 778

WEBSITES REFFERED: ● ● ● ●

www.indiankanoon.org www.manupatra.com www.blog.ipleaders.in www.lawctopus.com

STATUTES REFFERED:    

Hindu Marriage Act, 1955 Indian Divorce Act, 1869 Special Marriage Act, 1954 Indian Penal Code, 1860

BOOKS REFFERED: 

Dr. Paras Diwan, Modern Hindu Law(Allahabad Law Agency, 22nd edition).

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STATEMENT OF JURISDICTION

The Petitioner humbly submits to Hon’ble District Court of Alipore by way of filing a Divorce case on the ground of cruelty and adultery under section 27 of Special Marriage Act, 1954. The present memorandum sets forth the facts, contentions and arguments on the behalf of petitioner.

Section 27 Divorce-(1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the District Court either by the husband or the wife on the ground that the respondent(a) has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse; or (b) has deserted the petitioner for a continuous period of not less than two years immediately proceeding the presentation of the petition; or (c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code (45 of 1860); or (d) has since the solemnization of the marriage treated the petitioner with cruelty; or (e) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind, and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

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STATEMENT OF FACTS

1. Mr. Dharmendar Singh is a marketing manager in FMCG company living in Alipore, Kolkata. His marriage was fixed in the year 2012 with Swarupa Bannerjee who is a graduate belonging to a wealthy family. The marriage took place under the Special Marriage Act, 1954. 2. Dharmendar’s posting was not fixed at one place as a result he was transferred every alternative year. 3. In the year 2013, due to frequent shifting at work of Swarupa’s husband, she decided to stay with her parents at Jamsedpur. 4. In December 2014 Swarupa decided to meet Dharmendar in Jaipur where her husband was transferred, she met with Dharmendar and they spend some time with each other. 5. On 20th January 2015 Swarupa returned back to her parental home, Swarupa decided to work in order to pass her idle time and joined a Call-Center job where sometimes she worked overnight. 6. Swarupa made a close friendship with one of her colleagues named Sourav with whom she shared all her loneliness, feelings, thoughts, fancies she accompanied Sourav to the hotels and parties and thus in this way a good friendship grew between them. 7. In the month of December 2017 she visited Dharmendar in Chennai where he was posted. Dharmendar noticed an unusual behavior in her. It seemed to Dharmendar that she was hiding something. 8. Some incident of Swarupa shocked Dharmendar like mixing excess chilly powder in the food, keeping soap water in the bathroom floor, finding of pieces of glass in the food and her complete change of behavior toward him. 9. Dharmendar on seeing all this incident adviced Swarupa to go back to her parental home in Jamsedpur and to have a medical check-up. 10. On 5th January 2017 she came to her parental home and rejoined her job and she became more close to Sourav as he used to take care of her and console her often when she complained of her husband that Dharmendar do not give time to her anymore. 11. On 28th January 2017 Swarupa got an order from her boss that she had to stay back at office the whole night along with Sourav in order to complete a deadline project. They stayed back in the office. 12. On 16th February 2017 Swarupa was found pregnant. Meanwhile Dharmendar got the news of the kind of friendship Swarupa was maintaining with Surav through What’s App messages and the chat between both of them and also about the night stay at office with Sourav. 13. Dharmendar refuses to accept Swarupa and her unborn child and filed a petition for divorce on the ground of cruelty and adultery in the District Court of Alipore.

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ISSUES RAISED

1. Whether Dharmendar Singh is entitled to get a decree from the court on the ground of cruelty and adultery? 2. Whether Swarupa has committed adultery with Sourav or not?

3. If Divorce is given, can Swarupa claim maintainance for her child?

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SUMMARY OF ARGUMENTS

1. Whether Dharmendar Singh is entitled to get a decree from the Court on the ground of cruelty and adultery? It is humbly submitted before the Hon’ble Court that the petitioner Dharmendar Singh should be entitled to get a decree from the court on the ground of cruelty and adultery. From the incident stated in the facts i.e; mixing excess chilly powder in the food, keeping soap water in the bathroom floor, finding of pieces of glass in the food and her complete change of behavior towards him states the committing of cruelty on part of respondent.

2. Whether Swarupa has committed adultery with Sourav or not? It is humbly submitted before the Hon’ble Court that the respondent Swarupa had a very close relationship with her colleague Sourav. It is clear from the facts that she might have performed adultery during the time when she accompanied Sourav to hotels, parties or when she had to stay back at office the whole night along with Sourav in order to complete a deadline project.

4. If Divorce is given, can Swarupa claim maintainance for her child? It is humbly submitted before the Hon’ble Court that even if divorce is given to the respondent she cannot claim maintenance for her child because the child does not belongs to the petitioner.

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ARGUMENTS ADVANCED

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Whether Dharmendar Singh is entitled to get a decree from the Court on the ground of cruelty and adultery? It is humbly submitted before the Hon’ble Court that the respondent has done some act which is of cruelty and adultery towards the petitioner. And these acts like mixing excess chilly powder in the food, keeping soap water in the bathroom floor, finding of pieces of glass in the food were not due to unmindfulness or depression these were simply some acts of cruelty. It is also clear from the facts that the respondent had performed adultery with Sourav because: On 20th January 2015 Swarupa herself decided and returned back to her parental home, Swarupa decided to work in order to pass her idle time and joined a Call-Center job where sometimes she worked overnight. Swarupa made a close friendship with her colleague named Sourav with whom she shared all her loneliness, feelings, thoughts, fancies she accompanied Sourav to the hotels and parties. On 5th January 2017 she came to her parental home and rejoined her job and she became more close to Sourav as he used to take care of her and console her. On 28th January 2017 Swarupa got an order from her boss that she had to stay back at office the whole night along with Sourav in order to complete a deadline project. They stayed back in the office. From these acts it is quite clear that Swarupa started getting very close to Sourav and she might have committed adultery during this period.

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Whether Swarupa has committed adultery with Sourav or not?

It is humbly submitted before the Hon’ble Court that the respondent Swarupa had a very close relationship with her colleague Sourav. It is clear from the facts that she might have performed adultery during the time when she accompanied Sourav to hotels, parties or when she had to stay back at office the whole night along with Sourav in order to complete a deadline project. She even shared all her loneliness, feelings, thoughts, fancies and Sourav used to take care of her and console her. Section 13(1) (i) of the Hindu Marriage Act,1955 describes adultery as “ Any marriage solemnized, whether before or after the commencement of this act may, on a petition presented by either the husband or wife, be dissolved by a decree of divorce on the ground

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that the other party has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse.

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If Divorce is given, can Swarupa claim maintainance for her child? It is humbly submitted before the Hon’ble Court that even if divorce is given to the respondent she cannot claim maintenance for her child because it is not proved that the child belongs to the petitioner so there must be a paternity test before claiming maintenance.

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PRAYER

Wherefore, in the light of the fact of the case, issues raised argument advanced and authority cited; it is most respectfully submitted that this Hon’ble Court maybe pleased to adjudged and declare that: 1. That the writ filed is valid and the petitioner gets a decree from Hon’ble Court on the ground of cruelty and adultery. 2. That the respondent has committed an act of cruelty and adultery. 3. That if the divorce is given the respondent cannot claim maintenance for her unborn child. AND PASS ANY ORDER THAT THIS HON’BLE COURT MAY DEEM FIT IN THE INTEREST OF EQUITY, JUSTICE AND GOOD CONSCIENCE.

AND FOR THE ACT OF KINDNESS, THE COUNCIL FOR PETITIONER SHALL DUTY BOUND FOREVER PRAY.

SD/(COUNCIL FOR PETITIONER)