Moot Memorial

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IN THE HON’BLE DISTRICT COURT OF AHMEDABAD,
MISTY
(Appellant)
V.
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PIMPLE BEN
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(Respondent)
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INTRA CLASS MOOT COURT COMPETITION
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Prepared by
Mihir Narvilkar – 11BAL047
Manisha Navlani – 11BAL048

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MEMORIAL ON BEHALF OF RESPONDENT
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TABLE OF CONTENTS

Table of Contents ..........................................................................................................
Index of Authorities………………........................................................................................
List of Abbreviations……………………………………………………………………………………………………
Statement of Jurisdiction...............................................................................................
Issues Raised………..........................................................................................................
Statement of Facts .........................................................................................................
Summary of Pleadings.....................................................................................................
Prayer……………………………………………………………………………………...
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INDEX OF AUTHORITIES
CASES REFERRED: - * Savitaben Somabhai Bhatiya v State of Gujarat and Others (2005) * Surjit Kaur v. Garja Singh , AIR 1994 SC 135 * Reema Aggarwal v. Anupam, (2004) INSC 22 * D Velusamy Vs D Patchaiammal, (SC, 2010) * Chanmuniya v Virendra Kumar Singh & Another * Velusamy v D. Patchaiammal (2011) Crl. L.J. 320

LIST OF BOOKS REFERRED

1. Garner, Bryan A., Black’s Law Dictionary, Eighth Ed., ¶ 960 2. Wharton’s, Concise Law Dictionary, Universal Law Publication, 15th Ed., 2009 3. KB Agrawal (4th Edition),Family law in India, Kluewr Law publications. 4. Naseem Akhtar (3rd Edition) Family law, Divorce and Judicial Separation , DEEP And DEEP Publication Pvt Ltd. 5. Lynn King (5th Edition) What Every Woman Ask About ,James Lorimer and Company.

STATUTES/ RULES/ INTERNATIONAL TREATIES Hindu maintenance and Adoption act, 1956
Criminal Procedure Code
Hindu Marriage Act, 1955
Protection of Women from Domestic Violence Act, 2005
WEBSITES REFERRED: www.manupatra.com, last visited on 10th February, 2013

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LIST OF ABBREVIATIONS

AIR | All India Reporter | Ed. | Edition | PDS | Public Distribution System | SC | Supreme Court | SCC | Supreme Court Cases | SCJ | Supreme Court Judgments | TN | Tamil Nadu | v. | Versus | Vol. | Volume |
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STATEMENT OF JURISDICTION
The counsels for the respondents are presenting their pleadings before the Hon’ble Family Court, in response to the suit filed by the appellant under section 7 (1) (f) of the Family Courts Act 1984 which states that subjected to the other provision of this Act, a Family Court shall have the jurisdiction to be a district court.
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ISSUES RAISED

Whether Mitsy can claim maintenance from property of Ganna bhai or not?
It should be held that Misty cannot claim maintenance from the property of Ganna Bhai because neither is she a legally wedded wife of Ganna Bhai nor is she a valid ‘live-in’ partner. For a live in partner to claim maintenance, they need to prove certain conditions, which are failing in this case.
WHETHER THE RELATIONSHIP BETWEEN MITSY AND GANNA BHAI WAS LIVE IN OR NOT?
Misty had no right to be Ganna Bhai’s live in partner. The relationship shared between Mitsy and Ganna bhai didn’t satisfied the essentials of a live in relationship, and Ganna bhai being a married man cannot enter into a live in relationship without divorcing Pimple ben. Although Supreme Court has allowed live- in relationships but there are a few parameters that decide whether the live – in relationship is valid or not. One of the parameters is that the live in partners should be unmarried.

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STATEMENT OF FACTS * Ganna Bhai, an eminent businessman was born on 1 July, 1950, at Rajkot, Gujarat. On 28 February, 1972, Ganna Bhai started his Jewellery business at Ahmedabad. * Further on 13th of June, 1974, Ganna Bhai got married to Pimple Ben, resident of Ahmedabad. * Accordingly in the year 1975, Ganna Bhai’s business flourished and he established his own company under the name of Ganna Industries with a share of 25% in favour of his wife. * Subsequently, in the same year Pimple Ben gave birth to twin girls on 16th October, 1975 named Bikki and Babli. In the year 1991, Ganna Industries suffered huge loss during recession. Following to it in the year 1992, Pimple Ben left Ganna Bhai taking away Babli with her. * It took Ganna Bhai 9 long years to bring his company back on track. During the same period Babli got married in the year 1998. Further, in the year 2001, Bikki also got married. * From 2003 onwards Ganna Bhai started living with Misty, a manager in Ganna Industries. Subsequently, after insistence by Ganna Bhai, Misty left her job. Further in the year 2008, recession struck back and Ganna Industries suffered huge loss and subsequently Ganna Bahi fell ill and got paralysed. * Finally on 16th October, 2012, Ganna Bhai died. On 5th November, 2012 Pimple Ben forced Misty to move out of the house. Subsequently, she filed a suit claiming to be a live-in partner of Ganna Bhai and be granted the maintenance.

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PLEADINGS
Whether Misty be called Ganna Bhai’s live in partner

The Supreme Court of India has held that “relationship in the nature of marriage” under the Protection of Women from Domestic Violence Act, 2005 must have lived together in a “shared household” as defined in Section 2 (s) of the Act. “Shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household. Merely spending weekends together or a one night stand would not make it a “domestic relationship” In the given case, although Mitsy and Ganna Bhai were living together for almost 8 years but Ganna bhai was not eligible to get into a live in relationship because he was already married to Pimple Ben and was father of two child and they haven’t filed for divorce or conjugal rights anywhere, so there marriage hasn’t nullified and it was a case of adultery not of live in relationship. And a woman involved in adulterous relationship cannot be granted maintenance for the very purpose that it will increase such incidents, which will harm society at large.
The Supreme Court stated that a ‘relationship in the nature of marriage’ is akin to a common law marriage. For the purposes of claiming benefits under the domestic violence law and to claim maintenance the claimant must satisfy four requirements i.e.

(a) the couple must hold themselves out to society as being akin to spouses; (b) they must be of legal age to marry; (c) they must be otherwise qualified to enter into a legal marriage, including being unmarried and (d) they must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
In the present case Misty cannot be called a live in partner bcause Ganna Bhai is married and a live in relationship with a married man is invalid . It is further clarified that “live in relationship” is permissible in unmarried heterosexuals (in case, one of the said persons is married, the man may be guilty of adultery and it would amount to an offence under Section 497 of the Indian Penal Code). In the present case, it was not permissible for Ganna Bhai to live with Misty. However as Pimple Ben did not file any case, he was saved from being punished for the offence of adultery.
However, Ganna Bhai’s relationship was illegal and hence Misty does not have any right to claim any kind of maintenance.
In a landmark case it was observed by the Supreme Court that “ the bare fact that man and woman live as husband and wife it does not at any rate normally give them the status of husband and wife even though they may hold themselves before the society as husband and wife and the society treats them as husband and wife”
According to Hindu Vedic philosophy, it is sanskar – a sacrament; one of the sixteen important sacraments essential to be taken during one’s lifetime. Marriage is considered to be a junction of three important duties i.e. social ,religious and spiritual. Marriage is a legal union of one man and woman as husband and wife and cannot extend to a woman whose marriage is void or is not a valid marriage in the eye of law.
The live in relationship between Misty and Ganna Bhai was not recognized by law so Misty cannot claim maintenance
Whether Mitsy can claim maintenance from the property of Ganna bhai?

The term ‘maintenance’ includes an entitlement to food, clothing and shelter, being typically available to the wife, children and parents. Supreme Court Bench of Justice GS Singhvi and Justice AK Ganguly, while referring a similar matter i.e. Chanmuniya v Virendra Kumar Singh & Another to the Chief Justice of India, had also opined that “…a broad and expansive interpretation should be given to the term ‘wife’ to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a pre-condition for maintenance under Section 125 of the CrPC, so as to fulfill the true spirit and essence of the beneficial provision of maintenance under Section 125.
It is a measure of social justice and an outcome of the natural duty of a man to maintain his wife, children and parents, when they are unable to maintain themselves. Justice Katju said that for the purposes of claiming benefits under the domestic violence law, the claimant must satisfy four requirements. * These include that the couple must hold themselves out to society as being akin to spouse * They must be of legal age to marry * They must be otherwise qualified to enter into a legal marriage and must be unmarried, * And they must have voluntarily cohabited for a significant period of time.

We also believe that such an interpretation would be a just application of the principles enshrined in the Preamble to our Constitution, namely, social justice and upholding the dignity of the individual”.
Stating the condition given by Justice Katju in a ratio decendi for a live in partner to claim maintenance, in this case, first condition being couple must hold themselves out to society as being akin to spouse. In the given case, facts are silent on the part whether society was aware of the relation between Ganna Bhai and Misty and even if they were aware did they accepted them as spouses, if not then the first condition itself is not fulfilled.
The second condition says that they should be of legal age to marry, the counsel has no issues related to age and hence the second condition is fulfilled.
The third and most debatable condition, in relation to the present case, for claiming maintenance, it says that the partners should be otherwise qualified to be married.
The qualification for marriage under sec 5 of Hindu marriage act, 1955 are: (i) neither party has a spouse living at the time of the marriage (ii) at the time of the marriage, neither party- is incapable of giving a valid consent to it in consequence of unsoundness of mind; or though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or has been subject to recurrent attacks of insanity or epilepsy;] the bridegroom has completed the age of 2[ twenty- one years] and the bride the age of 2[ eighteen years] at the time of the marriage; (iv.) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two; the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.
In this the first point says that the spouse should not be living at the time of marriage, which is an important essential of marriage, and impliedly it makes it an essential for the live in relationship, and in the given case it is very clear from the facts itself that Ganna Bhai was married to Pimple Ben and since the criteria for asking maintenance from live in partner is not met, Misty cannot be given maintenance.
Maintenance is defined as “ The furnishing by one person to another for his or her support , of the means of living, or food, clothing . shelter etc. particularly where the legal relation to the parties is such that one is bound to support the other, as between father and child , or husband and wife .
Also Misty, according to the facts, was manager in Ganna Industries. So despite the fact that her current status is not mentioned in the facts we can conclude that she is capable of working again and maintain herself.
Even if we assume that Misty and Ganna Bhai got married , Misty cannot claim maintenance because second Hindu wife is not entitled to maintenance
According to a recent judgement “Not all live-in relationships will amount to a relationship in the nature of marriage to get the benefit of the Act of 2005 (The Protection of Women from Domestic Violence Act, 2005). To get such benefit the conditions mentioned must be satisfied, and this has to be proved by evidence. If a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purpose and / or as a servant it would not, in our opinion, be a relationship in the nature of marriage”.

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PRAYER

Wherefore in the light of facts presented, issues raised, arguments advanced and authorities cited, the Counsels on behalf of the Respondent humbly pray before this Hon’ble Court that it may be pleased to adjudge and declare that: 1. The appellants in the present matter
Or pass any other order that the court may deem fit in the light of equity, justice and good conscience.
And for this Act of kindness of Your Lordships the Respondent shall as duty bound ever pray.

Sd/- _____________________ Counsels for Respondent

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[ 1 ]. Velusamy v D. Patchaiammal (2011) Crl. L.J. 320
[ 2 ]. Surjit Kaur v. Garja Singh , AIR 1994 SC 135
[ 3 ]. Reema Aggarwal v. Anupam, (2004) INSC 22
[ 4 ]. Savitaben Somabhai Bhatiya v State of Gujarat and Others (2005)
[ 5 ]. Live in relationship no guarantee to alimony, Legal India, Available at: http://www.legalindia.in/live-in-relationship-no-guarantee-to-alimony, Seen on: 10th feb, 2013
[ 6 ]. D Velusamy Vs D Patchaiammal, (SC, 2010)