Official Memo.docx

BEFORE THE HON’BLE SUPREME COURT OF INDIA

In The Matter of :

Shankerappa

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- PETITIONER

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V.

Sushila Bai

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RESPONDENT

COUNSEL FOR THE PETITIONER : SUDITI TANDON Programme: B.A. LL.B.(HONS) Semester: 5th Admission No: 16170254 -MEMORANDUM FOR THE PETITIONER-

Signature of Faculty

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Memorandum For Appellant Page 1

TABLE OF CONTENTS

S.

Particulars

Page Number

No. 1

LIST OF ABBREVIATIONS

3

2

INDEX OF AUTHORITIES (ARTICLES ,WEB

4

PAGES,JOURNALS) 3

STATEMENT OF JURISDICTION

5

4

STATEMENT OF FACTS

6

5

ISSUES PRESENTED

7

6

SUMMARY OF ARGUMENTS

8-9

7

PRAYER FOR RELIEF

10

Memorandum For Appellant Page 2

INDEX OF ABBREVIATIONS

&

And

HC

High Court

SC

Supreme Court

SCC

Supreme Court Cases

Memorandum For Appellant Page 3

INDEX OF AUTHORITIES

CASE REFERRED 1. Rahim khan vs. Khursid Ahmed AIR 1975 SC 290 2. Shyam Pratap vs. Beninath Dubey AIR 1942 Pat 449 STATUTES AND OTHER AUTHORITIES –  

The Hindu Marriage Act, 1955 The Indian Evidence Act, 1872

JOURNALS REFERRED-

1. All India Reporters.

2. Indian Law Reporter.

3. SC Cases.

DATABASE REFERRED -

1. http://www.manupatra.com

2. http://www.indiankanoon.com

3. http://www.lexisnexis.com

Memorandum For Appellant Page 4

STATEMENT OF JURISDICTION

The petitioner has submitted before the High Court an appeal demanding maintenance from her husband under the section 24 and 25 of Hindu Marriage Act, 1955.

Memorandum For Appellant Page 5

_________________________________________________________________________ STATEMENT OF FACTS

The plaintiff. Sushilabai, institituted the suit claiming separate maintenance from Shankarappa alias Shivashankar, the defendant. alleging that she is the legally wedded wife of the defendant, their marriage having been performed on 11-5-1961 at Hagargundagi village of Gulbarga Taluk. She alleged that after the marriage the parties lived together as man and wife for some time; but thereafter The defedant, who is an Engineer in the service of Government left the plaintiff in the house of his parant's at Aland and began to live separately at the place of his posting. She further alleged that on account of the ill-treatment meted out to her by her mother-in-law, she found it impossible to continue to live at Aland. She says: that defendant instead of taking her Along with him send her back to her own parents place at Hagartundagi village during Ehiepavall of 1966 and thereafter defendant totally ignored and, deserted her ignoring the importunities of her father to permit her td. live with the defendant. Plaintiff sought a decree for maintenance at Rs. 200/- p. m. Some past maintenance was also claimed in the suit. It was Alleged that defendant apart from his salary of Rs. 1,000/- p. m. owns, Iand at Aland which yield Rs. 20,000/-, a year. The defence was one of total denial of the relationship itself. Defendant contended that though the father at the plaintiff was desirous of giving plaintiff in marriage to the defendant, as the two were related and known to each other and had made a proposal in that behalf, the proposal did not fructify in a marriage as defendant turned down the proposal. It was suggested that in view of defendant rejection of the Proposal the relationship between the two families became estranged and highly strained and that the suit was the outcome and expression of this ill-will. It was also contended that the estimate of his income, both by way of salary and from immovable property, as well a quantum of maintenance had been highly exaggerated.

Memorandum For Appellant Page 6

ISSUES RAISED

(1) Whether the plaintiff and respondent are man and wife?

(2) Whether a non-expert is entitled to testify handwriting?

Memorandum For Appellant Page 7

SUMMARY OF ARGUMENTS

Prior to the suit a notice as per the original of. Ext. P-8 dated 15-3-1977 was issued by plaintiff’s counsel to the defendant. It is not disputed that this was duly served on the defendant. He did not choose to reply. The question is whether any inference against the defendant could be drawn from this silence. Conduct in certain circumstance may include silence as well. But the silence to amount to conduct must be what may be styled 'positivesilence', and in the context of a clear duty to speak silence it is said, is golden except where there is a clear duty to speak. It is true that mere silence, without more, might not be susceptible of implications of conduct admitting of any adverse inference. The next important factor is the alleged admission of the- relationship in letter dated 18-61969. That letter is addressed to Sidramappa (P. W . 3), Plaintiff's case is that this letter was written by the defendant from Poona who, he was Then in service. The letter is EXt. P-S and the envelope which contained it is Ext P-4. In that letter, defendant is stated to have acknowledged the marital relationship and aired a number of grievances against the conduct of plaintiff. The letter does not refer to the plaintiff by name; but if the authenticity and authorship of it was established. There would be no difficulty in understanding it as referring to the plaintiff herself. The relationship between Sidramappa, the address of the letter, and the plaintiff is not disputed. The letter start thus.: The communication proceeds to refer to certain letters stated to have been written by the plaintiff to him and criticises the tone of those letters. Thereafter in an apparent reference so the threat of the plaintiff to go over to Poorta to join the defendant. Then the letter proceeds 10 make enquiries of Sidramappais (P. W. 3s) son. Defendant of course, has denied having written this letter. He denies that it is in his handwriting. The only other evidence as to the writing is the evidence of plaintiff herself who claims to be able to identify the handwriting of her husband and says that the writing in Ext. P-5 is In the hand of her husband. Plaintiff mid : "I have studied up to VI Standard Kannada. I can read and write Kannada. I can identify the Kannada handwriting of my husband. I am now shown a letter. It contains the handwriting of my husband. Sidramappa is my elder brother. My brother Sidramappa had received a letter from my husband. I have produced, that cover in this suit and the letter received in that cover. Exhibit P4 is the cover and Ext. P-5 is the letter of my husband .

Memorandum For Appellant Page 8

Phipson on Evidence (12th Edn. 1976) does not say In which of the ways indicated states, the law on that matter in terms followings: " The genuiness of a party's handwriting, or mark, may be proved by the opinion not only of experts, but of the opinion non-experts; and this is so even where the writer himself or the attesting witness is actually in Court and might be called A statement that the witness is acquainted with the witness is generally sufficient in chief, it being for the opponent to cross-examination as to means and extent. Such knowledge may be acquired : (1) by having at any time seen the party write, through the value of its opinion will, of course, vary with the frequency and recereness of the occasion and the attention paid to the matter by the witness or; (2) by the receipt of the written communications purporting to be in his handwriting in reply to documents addressed to him by or on behalf of the witness; through the evidence will be strengthened by the communications having been acted or as genuine between the parties; or (3) by having observed, in the ordinary course of business, documents purporting to be the party's handwriting: a method which applies also to the Proof of ancient handwriting."

The treatise proceeds to say that the non-expert's knowledge must not, however, have been acquired for the express purpose of qualifying him to testify at the, particular trial. The manner of acquisition of knowledge entitling a non-expert evidence to testify under Section 47 is broadly similar. What emerges is that it may not be necessary for the witness to state in examination-in-chief as to the mode in which the knowledge of the handwriting was acquired, it being open to the cross-examining counsel, if he challenges the statement of the witness, to probe into the matter in the cross-examination.

Memorandum For Appellant Page 9

PRAYER FOR RELIEF

The contentions raised on behalf of the Appellant at the hearing of these Appeals may be thus summarized : 1. The appellant and respondent are man and wife and violation of Section 5 (iii) does not render a marriage null and void. 2. The wife being a non-expert is capable of identifying and witnessing for his husband’s handwriting under Section 47 of Indian Evidence Act.

On behalf of SHANKERAPPA Counsel for the Appellant SUDITI TANDON

Memorandum For Appellant Page 10