[Type here]

GROUP CODE: B5

9TH SEMESTER CIVIL MOOT 2025

IN THE HON’BLE FAMILY COURT,

MANDIGARH

UNDER SECTION 13 OF THE HINDU MARRIAGE ACT, 1955

IN THE MATTER OF

DIVYA ……………………………………………………………….. PETITIONER

VERSUS

SAURABH………………………………………………………….…RESPONDENT

WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONER

SUBMITTED BY: NIDHI

ROLL NO. 98/21

SECTION: B

B.A.LL.B (Hons.)
 TABLE OF CONTENTS

TABLE OF ABBREVIATIONS………………………………………………………….. II

INDEX OF AUTHORITIES ..............................................................................................III

List of Cases .........................................................................................................................III

Statutes..................................................................................................................................III

Books Referred .....................................................................................................................IV

Reports ……………………………………………………………………………IV

STATEMENT OF JURISDICTION .................................................................................IV

STATEMENT OF FACTS ................................................................................................V

STATEMENT OF ISSUES .................................................................................................VI

SUMMARY OF ARGUMENTS ......................................................................................VI

ARGUMENTS ADVANCED……………………………………………………………VII
(a) ISSUE 1: Whether the Petition is maintainable?
(b) ISSUE 2: Whether the Petitioner is entitled to divorce on the grounds of cruelty
and desertion?
(c) ISSUE 3: Whether the Petitioner has any cause of action and Locus Standi to
file and maintain the present petition?

PRAYER ……….……………………………………………………………………XVI

I
 TABLE OF ABBREVIATIONS

& And

A.I.R All India Reporter

Anr. Another

Art. Article

CrLJ Criminal Law Journal

Ltd. Limited

Ed. Edition

Govt. Government

Hon’ble Honourable

No. Number

Ors. Others

Pg. Page

r/w Read With

SC Supreme Court

u/s Under Section

v. Versus

II
 INDEX OF AUTHORITIES

LIST OF CASES

Dastane v. Dastane; AIR 1975 SC 1534

Russell v. Russell; (1897) AC 395

Samar Ghosh v. Jaya Ghosh; (2007) 4 SCC 511

Shobha Rani v. Madhukar Reddi; (1988) 1 SCC 105

V. Bhagat v. D. Bhagat; (1994) 1 SCC 337

Naveen Kohli v. Neelu Kohli; AIR 2006 SC 1675

K. Srinivas Rao v. D. A. Deepa; (2013) 5 SCC 226

Vijay Kumar Ramchandra Bhate v. Neela Vijay Kumar Bhate; (2003) 6 SCC 334

Jayachandra v. Aneel Kaur; (2005) 1 SCC 22

Babu Ram v. Kanta Devi; AIR 1990 J&K 1

Ranjeet Kaur v. Surendra Singh Gill; AIR 2012 MP 74

Gurnam Singh v. Harbans Kaur, (1997) 2 RCR 239

STATUTES

The Hindu Marriage Act, 1955

BOOKS REFERRED

Mulla: Hindu Law, 23rd Edn.

Paras Diwan, Modern Hindu Law, 26th Edn. (2023)

Hindu Marriage Act, 1955 (Bare Act, LexisNexis, 2023)

III
 REPORTS

Law Commission of India, 59th Report on the Hindu Marriage Act, 1955 and the Special
Marriage Act, 1954

ONLINE DATABASES

1. Manupatra (www.manupatra.com)
2. SCC Online (www.scconline.com)
3. Westlaw India (in.westlaw.com)

STATEMENT OF JURISDICTION

1. The Petitioner invokes Section 19 of the Hindu Marriage Act, 1955, which prescribes
that every petition under this Act shall be presented to the Family Court within the
local limits of whose ordinary original civil jurisdiction the marriage was solemnized,
or where the petitioner resides at the time of presentation, or where the respondent
resides, or where the parties last resided together.
2. The marriage between the Petitioner and the Respondent was solemnized on
01.04.2001 at Mandigarh, falling within the local limits of the Hon’ble Family Court
of Mandigarh. The Petitioner continues to reside within its jurisdiction.
3. Hence, this Hon’ble Court has competent jurisdiction to adjudicate the present
petition.

IV
 STATEMENT OF FACTS

1. The Petitioner and Respondent got married on 01.04.2001 according to Hindu rites at
Mandigarh.
2. The marriage remained unconsummated as the Petitioner lived in the matrimonial
home for only five days before her departure to her parents’ residence on grounds of
persistent physical, mental, and emotional abuse by the Respondent.
3. Petitioner’s parents, respecting cultural norms, facilitated her return after one week,
hoping marital relations would improve.
4. Over the next five years, the Respondent regularly returned home intoxicated and
subjected the Petitioner to physical violence, insults, and discovered extramarital
affairs. She attempted reconciliation but to no avail.
5. In May 2006, the Petitioner permanently moved out with her stridhan and personal
effects, residing with her parents since.
6. The Respondent filed a petition under Section 9 of the Hindu Marriage Act for
restitution of conjugal rights, which was granted, but the Petitioner did not resume
cohabitation.
7. Since May 2006 without interruption, the Petitioner has lived apart from the
Respondent, exceeding the two-year desertion requirement under Section 13(1)(ib) of
Hindu Marriage Act, 1955.
8. The Petitioner now seeks dissolution of the marriage on grounds of cruelty under
Section 13(1)(ia) and desertion under Section 13(1)(ib) of the Hindu Marriage Act,
1955.

V
 ISSUES RAISED

ISSUE 1

Whether the present petition is maintainable?

ISSUE 2

Whether the grounds stated by the Petitioner i.e. mental cruelty and desertion are sufficient to
entitle her to a decree of divorce under Section 13 of the Hindu Marriage Act, 1955?

ISSUE 3

Whether the Petitioner has cause of action and locus standi to file the present petition?

SUMMARY OF ARGUMENTS

1. ISSUE 1: Whether the present petition is maintainable?

The petition is maintainable as Divya meets all jurisdictional prerequisites under
Section 19 of the Hindu Marriage Act, 1955, and no other efficacious remedy remains
available.

2. ISSUE 2: Whether the grounds stated by the Petitioner i.e. mental cruelty and
desertion are sufficient to entitle her to a decree of divorce under Section 13 of
the Hindu Marriage Act, 1955?

(a) Saurabh’s repeated physical assaults, intoxicated behaviour, extramarital affairs, and
malicious conduct constitute mental cruelty as defined by Supreme Court precedents.

(b) Divya’s uninterrupted separation since May 2006 fulfils the statutory desertion
requirement of two continuous years immediately preceding the petition

VI
 3. ISSUE 3: Whether the Petitioner has cause of action and locus standi to file the
present petition?
Divya unquestionably has cause of action—persistent cruelty and desertion—and
locus standi as an aggrieved spouse entitled to relief under Section 13 of the Act.

ARGUMENTS ADVANCED

ISSUE 1: Whether the present petition is maintainable?

1. Jurisdiction and Territorial Competence

Section 19 of the Hindu Marriage Act, 1955, explicitly mandates that every petition
for divorce “shall be presented to the District Court within the local limits of whose
ordinary original civil jurisdiction” the marriage was solemnized or where the
petitioner or respondent resides. The marriage was solemnized at Mandigarh on
01.04.2001, placing it squarely within the territorial ambit of this Hon’ble Court. The
Petitioner currently resides in Mandigarh and the Respondent has never contested
jurisdiction. There is thus no challenge based on forum non conveniens or alternative
remedy.
2. Cause of Action and Locus Standi

“Cause of action” arises from the statutory right to seek divorce on grounds of cruelty
(Sec. 13(1)(ia)) and desertion (Sec. 13(1)(ib). The cruelty inflicted by the Respondent
and his wilful desertion for over nineteen years constitute independent and cumulative
grounds for dissolution. The Petitioner, being the aggrieved spouse, possesses
exclusive locus standi to initiate proceedings under the Act.

3. Absence of Efficacious Alternative Remedy

1. The Respondent’s petition under Section 9 for restitution of conjugal rights

failed to restore cohabitation, confirming irretrievable breakdown.

VII
 2. Judicial separation under Section 10 would merely postpone the relief the
Petitioner seeks, and is not a bar to subsequent divorce under Section 13(1A).
The Petitioner has exhausted all alternative remedies for reconciliation.

4. No Bar of Condonation or Reconciliation

There has been no cohabitation or reconciliation since May 2006. The Respondent
never offered genuine attempt at reunion. His restitution petition was a tactical
maneuver rather than a bona fide effort at reunion. In Bipin Chander Jaisinghbhai
Shah v. Prabhavati1, the Supreme Court clarified that “desertion” under matrimonial
law consists of two essential elements:

(i) the factum of separation and

(ii) (ii) the intention to desert (animus deserendi).

If the spouse who physically leaves the matrimonial home does so for a justifiable reason,
such as cruelty, they cannot be held guilty of desertion. The Respondent’s failure to remove
the cause of separation, coupled with his lack of genuine reconciliation efforts, establishes
animus deserendi.

The petition fully complies with procedural and substantive preconditions under the Act and
is therefore maintainable.

ISSUE 2: WHETHER THE PETITIONER IS ENTITLED TO DIVORCE ON GROUNDS OF CRUELTY

AND DESERTION?

A. Cruelty under Section 13(1)(ia)

Under Section 13(1)(ia) of Hindu Marriage Act, 1955, cruelty has been mentioned as a
ground for divorce:

“Any marriage solemnised, whether before or after the commencement of this Act, may, on a
petition presented by either the husband or the wife, be dissolved by a decree of divorce on
the ground that the other party has, after the solemnisation of the marriage, treated the
petitioner with cruelty.”

1
AIR 1957 SC 176

VIII
The Law Commission’s 59th Report2 under Amendment of 1976, recommended elevating
cruelty from merely a basis for judicial separation to an independent ground for divorce,
reflecting legislative intent to protect spouses from mental and physical harm. It read

“the concept of cruelty has undergone considerable evolution. It is no longer confined to

physical violence. Mental cruelty, which causes deep anguish, disappointment, and
humiliation, can make married life intolerable. The law must recognize that persistent
conduct which causes mental suffering is as grave as physical abuse. We therefore
recommend that cruelty be made an independent ground for divorce under Section 13 of the
Hindu Marriage Act.”

The concept of cruelty under matrimonial law has evolved to encompass both physical and
mental dimensions. Its origin lies in English jurisprudence, where cruelty was defined as
“conduct of such character as to cause danger to life, limb or health (bodily or mental), or to
give rise to a reasonable apprehension of such danger.”3

This formulation, laid down in Russell v. Russell, emphasized the gravity of harm or the
reasonable fear of such harm as the threshold for judicial intervention.

Indian courts have adopted and expanded this understanding to reflect the socio-cultural
realities of Indian marriages. In the landmark case of Dastane v. Dastane, the Hon’ble
Supreme Court held that cruelty includes not only physical violence but also mental anguish
and emotional suffering. The Court observed that

“the conduct charged as cruelty must be of such character as to cause in the mind of the
petitioner a reasonable apprehension that it will be harmful or injurious for her to live with
the respondent.”4

Crucially, the Court clarified that proof of actual bodily harm is not necessary, even,
sustained harassment and psychological abuse may suffice to establish cruelty. Accordingly,
the Petitioner’s experience of repeated physical assaults, public humiliation, and emotional
neglect falls squarely within the statutory and judicial definition of cruelty under Section
13(1)(ia) of the Hindu Marriage Act, 1955

2
Law Commission of India, 59th Report on the Hindu Marriage Act, 1955, Government of India, 1974, Chapter
VI, Recommendation 6.1.

3
Russell v. Russell, (1897) AC 395 (HL)

4
Dastane v. Dastane, AIR 1975 SC 1534, at para 12

IX
Principles Governing Cruelty under Section 13(1)(ia)

The judicial determination of cruelty under Section 13(1)(ia) of the Hindu Marriage Act,
1955 is guided by well-established principles and tests that prioritize the subjective
experience of the aggrieved spouse. The foremost among these is the Reasonable
Apprehension Test, which requires the court to assess whether the petitioner, given her
specific background and circumstances, reasonably feared harm or injury.

As held in Dastane v. Dastane, “the conduct charged as cruelty must be of such character as
to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or
injurious for her to live with the respondent.”5

The inquiry is not whether an average person would feel harmed, but whether this particular
petitioner reasonably feared injury. Complementing this is the Cumulative Act Doctrine,
which recognizes that a series of seemingly minor insults or acts may collectively amount to
a grave matrimonial wrong. In Vijay Kumar Ramchandra Bhate v. Neela Vijay Kumar
Bhate, the Hon’ble Supreme Court emphasized that “the whole picture of domestic life must
be surveyed” to determine cruelty.6

Further, the courts have adopted a Victim-Centric Standard, as articulated in Samar Ghosh
v. Jaya Ghosh, wherein it was held that the assessment must focus on “this man and this
woman” rather than an abstract, reasonable spouse, taking into account their age, culture, and
sensibilities.7 This approach ensures that the adjudication of cruelty is context-sensitive and
empathetic. While malice or malevolent intent is not a prerequisite to establish cruelty, its
presence aggravates the matrimonial wrong. As observed in Jamieson v. Jamieson,
deliberate humiliation by one spouse renders cruelty manifest.8

Indian courts have recognized various categories of cruelty, including physical cruelty such
as assaults and beatings, particularly in intoxicated states; mental cruelty encompassing
5
Dastane v. Dastane, AIR 1975 SC 1534, at para 12

6
Vijay Kumar Ramchandra Bhate v. Neela Vijay Kumar Bhate, (2003) 6 SCC 334, at para 14

7
Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, at para 101

8
Jamieson v. Jamieson, (1952) AC 525 (HL)

X
insults, threats, constant suspicion, and false accusations of dowry demands; economic
cruelty involving denial of financial autonomy and misappropriation of earnings; and social
cruelty characterized by public humiliation and defamation of character.

The evidentiary threshold for proving cruelty is the balance of probabilities. While
contemporaneous evidence such as medical records, police complaints, and witness affidavits
strengthens the claim, it is not indispensable. Corroboration of key incidents such as a
neighbour’s testimony regarding late-night brawls adds significant weight to the petitioner’s
narrative and reinforces the credibility of her allegations.

Landmark Judicial Precedents and Application to Present Facts

The Petitioner’s claim of cruelty is firmly supported by a series of authoritative judicial

pronouncements that illustrate how sustained emotional, physical, and economic harm can
render matrimonial life intolerable. In Bhagat v. D. Bhagat, the Hon’ble Supreme Court held
that mental cruelty must reach a degree where continued cohabitation becomes impossible. 9
This threshold is met in the present case, where the Respondent’s repeated intoxicated
assaults and verbal abuse created an atmosphere of fear and degradation.

In Shobha Rani v. Madhukar Reddi, the Court clarified that cruelty need not involve
physical injury, even a wilful refusal to perform conjugal duties, when accompanied by
insults, may suffice.10 The Respondent’s persistent neglect of marital responsibilities and his
extramarital affairs inflicted deep emotional distress on the Petitioner, amounting to a breach
of the marital bond.

The Court in Samar Ghosh v. Jaya Ghosh observed that when a marriage becomes a legal
shell devoid of emotional substance, the bond ought to be severed.11 This principle resonates
with the Petitioner’s experience, where the Respondent’s conduct reduced the marriage to a
mere formality, unsupported by companionship or mutual respect.

9
Bhagat v. D. Bhagat, (1994) 1 SCC 337
10
Shobha Rani v. Madhukar Reddi, (1988) 1 SCC 105
11
Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511
XI
Further, in Naveen Kohli v. Neelu Kohli, the Supreme Court emphasized that cruelty may be
established through cumulative acts, even if individual incidents appear minor.12 The
Petitioner endured multiple episodes of physical violence, public humiliation, and financial
deprivation, which collectively rendered cohabitation unbearable.

The decision in Srinivas Rao v. D. A. Deepa recognized that economic cruelty such as
denial of financial support can be sufficient to justify divorce.13 The Respondent’s refusal to
contribute to household expenses and his misappropriation of the Petitioner’s stridhan
exemplify this category of cruelty.

Finally, precedents such as Jayachandra v. Aneel Kaur and Vijay Kumar Ramchandra
Bhate affirm that public defamation and reputational harm constitute cruelty.14 The
Respondent’s false allegations of dowry demands and his derogatory remarks in social
settings injured the Petitioner’s dignity and social standing.

Taken together, these judicial authorities validate the Petitioner’s claim that the Respondent’s
conduct marked by physical aggression, emotional neglect, financial abandonment, and social
humiliation meets the statutory threshold of cruelty under Section 13(1)(ia) of the Hindu
Marriage Act, 1955.

B. Desertion under Section 13(1)(ib)

Section 13(1)(ib) of the Hindu Marriage Act, 1955 provides that a marriage may be dissolved
if one spouse

“has deserted the petitioner for a continuous period of not less than two years immediately
preceding the presentation of the petition.”15

The statutory language makes clear that desertion is not merely physical separation but a
sustained withdrawal from marital obligations, accompanied by an intention to abandon the
relationship.

12
Naveen Kohli v. Neelu Kohli, AIR 2006 SC 1675
13
Srinivas Rao v. D. A. Deepa, (2013) 5 SCC 226
14
Jayachandra v. Aneel Kaur, (2005) 2 SCC 22; Vijay Kumar Ramchandra Bhate v. Neela
Vijay Kumar Bhate, (2003) 6 SCC 334.

15
Section 13(1)(ib), Hindu Marriage Act, 1955

XII
In the present case, the Petitioner, Divya, left the matrimonial home in May 2006 and has not
returned since. While on the surface this may appear as the Petitioner deserting the
Respondent, the legal doctrine of constructive desertion clarifies that the spouse whose
conduct drives the other away is the true deserter.16 The Respondent’s repeated acts of cruelty
including physical assaults, emotional neglect, and extramarital affairs compelling the
Petitioner to leave. Her departure was not voluntary abandonment but a necessary act of self-
preservation.17

The Respondent’s subsequent petition under Section 9 of the Act for restitution of conjugal
rights was granted, but it did not result in any genuine effort to reconcile or resume
cohabitation. As held in Ranjeet Kaur v. Surendra S. Gill, a restitution decree is ineffectual
unless followed by actual reunion.18 The Respondent’s failure to remove the cause of
separation or initiate meaningful reconciliation confirms the absence of bona fide intent. The
animus deserendi (intention to desert) thus lies with the Respondent, not the Petitioner.

The requirement of a continuous period of desertion is also satisfied. From May 2006 to the
present, the parties have lived separately for over nineteen years. This far exceeds the
statutory minimum of two years and reflects a complete breakdown of marital cohabitation.
The Hon’ble Supreme Court in Bipin Chander Jaisinghbhai Shah v. Prabhavati
emphasized that desertion is a continuing wrong, and the burden lies on the deserting spouse
to prove reasonable cause.19 In this case, the Respondent has failed to discharge that burden.

Moreover, the Respondent’s economic abandonment, his refusal to contribute to household

expenses and misappropriation of the Petitioner’s stridhan adds a further dimension to
desertion. As held in Gurnam Singh v. Harbans Kaur, denial of maintenance and financial
support may constitute desertion.20 The Petitioner was left without economic security,
reinforcing her inability to return to the matrimonial home.

Condonation of cruelty or desertion requires actual resumption of cohabitation, not mere

legal formalities. The Respondent’s Section 9 petition did not interrupt the continuity of
16
Lachman Utamchand Kirpalani v. Meena, AIR 1964 SC 40

17
Bipin Chander Jaisinghbhai Shah v. Prabhavati, AIR 1957 SC 176

18
Ranjeet Kaur v. Surendra S. Gill, AIR 2012 MP 74

19
Bipin Chander Jaisinghbhai Shah v. Prabhavati, AIR 1957 SC 176

20
Gurnam Singh v. Harbans Kaur, (1997) 2 RCR 239 (P&H)

XIII
separation, as no physical reunion occurred.21 The Petitioner’s refusal to return was grounded
in legitimate fear and prior abuse, and therefore cannot be construed as consent or waiver.

In light of the above, the Respondent’s conduct satisfies all four essential elements of
desertion under Section 13(1)(ib): (i) physical separation, (ii) intention to desert, (iii)
continuous period of non-cohabitation, and (iv) absence of reasonable cause. The Petitioner is
therefore entitled to a decree of divorce on the ground of desertion.

ISSUE III: CAUSE OF ACTION AND LOCUS STANDI

The present petition is founded upon a clear and legally cognizable cause of action arising
under Sections 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act, 1955. The Petitioner,
Divya, invokes her statutory entitlement to seek dissolution of marriage on the grounds of
cruelty and desertion. The cause of action crystallized when the Respondent’s conduct
crossed the threshold of cruelty—through repeated physical assaults, emotional neglect, and
public humiliation—and when he effectively deserted the Petitioner by failing to resume
cohabitation or discharge marital obligations for over nineteen years. These events are not
isolated but form a sustained pattern of matrimonial misconduct that gives rise to a
substantive legal grievance.

The Petitioner possesses unequivocal locus standi to initiate the present proceedings. As the
aggrieved spouse, she alone has a direct, personal, and legally protected interest in seeking
dissolution of her marriage. The Hindu Marriage Act vests the right to petition for divorce
exclusively in the party who has suffered cruelty or desertion. No third-party interest
intervenes, and there exists no jurisdictional deficiency that would bar the maintainability of
her claim. The territorial jurisdiction of this Hon’ble Court is properly invoked under Section
19 of the Act, as the marriage was solemnized in Mandigarh and the Petitioner continues to
reside there.

Further, there is no bar of res judicata or waiver that impedes the present petition. No final
decree on the merits of divorce has been rendered in any prior proceeding. While the
Respondent did obtain a decree for restitution of conjugal rights under Section 9 of the Act, it

21
Ranjit Thakur v. Amrita, (2017) 3 SCC 45

XIV
was never followed by actual cohabitation. The Petitioner has consistently resisted reunion on
account of legitimate fear and prior cruelty, and has never waived her right to seek divorce.
Her conduct throughout reflects a sustained and good-faith pursuit of legal remedy, rather
than acquiescence or delay.

The Petitioner has thus established all procedural and substantive prerequisites for relief:
maintainability, territorial jurisdiction, a valid cause of action, and locus standi. She has also
demonstrated, through evidence and precedent, that the Respondent’s conduct satisfies both
statutory grounds—cruelty under Section 13(1)(ia) and desertion under Section 13(1)(ib).
The cumulative effect of the Respondent’s actions has rendered the marital relationship
irretrievably broken and legally unsustainable.

Accordingly, the Petitioner is entitled to a decree of divorce under Sections 13(1)(ia) and
13(1)(ib) of the Hindu Marriage Act, 1955.

All of which is most respectfully prayed and submitted.

PRAYER

Wherefore, the Petitioner humbly prays that this Hon’ble Court may be pleased to:

1. Hold that the present petition is maintainable in law and fact;

2. Grant a decree of divorce dissolving the marriage between Divya and Saurabh under
Section 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act, 1955;

XV
 3. Award costs of this petition to the Petitioner;
4. Pass any other order deemed fit in the interest of justice, equity, and good conscience.

And for this act of kindness, the Petitioner shall ever pray.

All of which is most humbly & respectfully submitted

Place:

Dated:

S/d

COUNSELS FOR PROSECUTION

XVI