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Memorial on behalf of the respondent

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IN THE HONBLE
SUPREME COURT OF INDIA

IN THE MATTER OF
Bipinchandra Jaisinghbai Shah
(PETITIONER)
V.
Prabhavati

(RESPONDENT)


MEMORIAL ON BEHALF OF THE RESPONDENT

Council on behalf of the respondent
Kahkashan Yunus


Roll no-58
Section c
Semester II
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Table of contents
List of abbreviations. Page 3

Table of authorities... Page 4

(Acts and cases)

Statement of jurisdiction.. Page 5

Synopsis of facts Page 6

Issues raisedPage 7

Summary of arguments.Page 8

Written pleadings.. Page 9

Prayer for relief.. Page 12







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List of abbreviations
Honblehonorable
V..verses
















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Table of authorities
Acts
Bombay Hindu Divorce Act, 1947
Cases
Bowron v. Bowron
Charter v. Charter
Sickert v. Sickert
Thomas v. Thomas
Wilkinson v. Wilkinson












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Statement of jurisdiction
The plaintiff has reached the Supreme Court of India under section 3 clause (d) of the Bombay
Hindu Divorce Act, 1947.
















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Synopsis of facts
Bipin Chandra and Prabhavati both belonging to Jain community were married in Patan
on April 20
th
, 1942. They had a son Kirit on September 10
th
1944.
Mahendra who was a family friend came to live with them in 1946.
On January 8
th
, 1947, Bipin left for England for business. In the meantime, wife
developed some intimacy with Mahendra who was a family friend and came to stay with
them for some time.
Later she wrote a letter (Ex. E) to Mahendra from Patan, where she is staying with her
mother in law.
Bipin returned to Bombay from England on 20
th
May, 1947 and is surprised to find out
that his bed has been made in the hall in which his father used to sleep.
On May 21
st
1947, Bipins father shows him the letter written by his wife and Bipin
recognizes her hand writing. He thus comes to know about the relation between his wife
and Mahendra. His wife confessed about her relations with Mahendra and says that they
both love each other.
On May 24
th
, 1947, wife packed all her belongings and said that she has to attend a
marriage at fathers place at Jalgoan. And so she leaves from there to Jalgoan.
On 15
th
July, 1947, husbands solicitor addressed a letter to the wife (Ex. E).In that letter
it was mentioned that the husband wanted to take charge of their son Kirit and no where
it was mentioned that he was alleging his wife for desertion. Instead he said that he was
not ready to accept Prabha again as his wife.
On 4
th
July, 1951, husband filed a suit against wife charging her of desertion under the
Bombay Hindu Divorce Act, 1947.







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Issues raised
Whether the wife (defendant) deserted the husband (plaintiff) for a continuous period of over
four years prior to the filing of the suit or not?


















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Summary of arguments
The wife should not be held liable for desertion because she left her husbands home only out of
shame. She was unable to face either her husband or other members of her husbands family.
Since her husband came to know about the relation between her and Mahendra. Wifes
contention is that there has been a constructive desertion. And even in the letter written by
husbands soliciter it was mentioned that the husband was not ready to accept his wife and that
he does not want to take any responsibility of her. In the first place, even the husband( plaintiff)
in the letter did not allege any desertion and secondly he was not prepared to receive her back to
the matrimonial home.













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Written pleadings
Contention -When the wife left her matrimonial home on 24
th
May, 1947, it cannot be said
that her act was accompanied by an intention to desert her husband.
Desertion is the separation of one spouse from the other, with an intention on the part of the
deserting spouse of bringing cohabitation permanently to an end without reasonable cause and
without the consent of the other spouse but the physical act of departure by one spouse does not
necessarily make that spouse the deserting party.
For the offence of desertion so far as the deserting spouse is concerned two essential conditions
must be there namely (1) the factum of separation and (2) the intention to bring cohabitation
permanently to an end (animus deserendi). Similarly two elements are essential so far as the
deserted spouse is concerned (1) the absence of consent and (2) absence of conduct giving
reasonable cause to the spouse leaving the matrimonial home to form the necessary intention
aforesaid.
If in fact there has been a separation the essential question always is whether that act could be
attributable to an animus deserendi. The Bombay Hindu Divorce Act 1947, prescribes a period of
four years as a continuous period during which the two elements must subsist. It is necessary that
during all the period that there has been a desertion, the deserted spouse must affirm the marriage
and be ready and willing to resume married life on such conditions as may be reasonable.
In the present case we are immediately concerned with the provisions of Section 3 clause(d)
of the Bombay Hindu Divorce Act 1947,which are in these terms- A husband or wife may
sue for divorce on any of the following grounds namely that the defendant has deserted
the plaintiff for a continuous period of four years. Desertion has been defined in section 2
(b) in these terms
Desertion means to desert without reasonable cause and without the consent or against the
will of the spouse.
It is also well settled that in proceedings for divorce the plaintiff must prove the offence of
desertion like and other matrimonial offences beyond reasonable doubt.
In the present case the wife is said to have confessed to her husband that Mahendra is a better
man than him and that he loved her and she loved him. The natural reaction of the wife after
confessing about Mahendra would be not to face the husband in that frame of mind. She would
naturally wish to be out of the sight of her husband at least for some time to gain time for trying,
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if she was so minded to re-establish herself in her husbands estimation and affection if not love.
The event of the afternoon of May 24
th
, 1947 must therefore be viewed in that light.
This conduct on the part of the wife could easily be explained as that of a person who had found
that her love letter had been discovered by the husband. She would naturally try to flee away
from her husband for the time being at least because she had not the moral courage to face him.
It can not be concluded that the wife leaving her marital home on the afternoon of May 24
th

1947, is consistent with her having deserted her husband in the sense that she had deliberately
decided permanently to forsake all relationship with her husband with the intention of not
returning back.

The following observations of Pollock in Thomas v. Thomas
1
may be usefully quoted in this
connection desertion is not a single act complete in itself and revocable by a single act of
repentance. The act of departure from the other spouse draws its significance from the
purpose with which it is done as revealed by the conduct or other expressions of intention.

In Charter v. Charter
2
it was held that a mere temporary parting is equivocal, unless and until
its purpose and object is made plain.

In Wilkinson v. Wilkinson
3
it was observed by Day J. that desertion is not a specific act but,
a course of conduct.

In Sickert v. Sickert
4
it was held by Cornell Barnes J. that the party who intends to bring the
cohabitation to an end and whose conduct in reality causes its termination, commits the act of
desertion. That conduct is not wiped out by a letter of invitation to the wife to return.
The defendant having been discovered about her relation with Mahendra , could not face her
husband or her husbands people living in the same flat in Bombay and therefore shame facedly
withdrew herself and went to her parents place of business in Jalgoan. She further added that
after her cousins marriage had been performed she was making preparations to go back to
Bombay but her father detained her and asked her to await a letter from the husband to come
back to the marital home.
The plaintiffs solicitor addressed a letter (Ex. A) to the defendant on 15
th
July 1947. The letter
does not in terms allege that the defendant was in desertion. The most important part of the letter

1
1924
2
1901, 84, LT, 272
3
(1894) 58 J P 415


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is to the effect that the plaintiff had become entitled to obtain a divorce and that he did not
desire to keep the wife under his protection and care anymore. The working of the mind of the
plaintiff is shown in this letter. It makes clear that the time when the letter was written the
plaintiff did not believe that the defendant had been in desertion. And that the plaintiff had
positively come to a determination that he was no longer prepared to affirm the marriage
relationship. And the wifes contention was that she was always ready to go back to her marital
home.
As already indicated , one of the essential conditions for success in a suit for desertion is that the
deserted spouse should have been willing to fulfill his or her part of the marital duties. A
petitioner should be able honestly to say that he or she was along willing to fulfill the duties of
the marriage.
In the letter written by plaintiffs solicitor , can the plaintiff honestly say that he was all willing
to fulfill the duties of the marriage and that the defendants desertion , if any, continued through
out the statutory period without his consent. The letter Ex. A is an emphatic no. In the first place,
even the plaintiff in the letter did not allege any desertion and secondly he was not prepared to
receive her back to the matrimonial home. The defendant wished the court to believe that at the
time the letter was written he was in a confused state of mind. The contents of the letter could not
thus be explained away by the plaintiff. This letter has an importance of its very own only in so
far as it does not corroborate the plaintiffs version that the defendant was in desertion and that
the plaintiff was all along anxious to induce her to come back to him.
This letter is more consistent with the supposition that the husband was very angry with her on
account of her conduct as betrayed by the letter Ex. E and that the wife left her husbands place
in shame not having courage to face him after that discovery. And it will not render her in the
eye of the law a deserter as observed by Pollock in Bowron v. Bowron
5
.









5
1925
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Prayer for relief

In the light of facts stated, arguments advanced and authorities cited the petitioner humbly prays
before the Supreme Court to adjudge and declare that:-

There was no desertion and thus the wife should not be held liable for it.
All of which is most respectfully submitted.The Court may also be pleased to pass any
other order, which the Court may deem fit in light of justice, equity and good conscience.


Council for petitioner
Kahkashan Yunus









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