2nd UILMS INTRA COLLEGE MOOT COURT COMPETITION, 2014IN THE COURT OF DISTRICT JUDGE, DELHI UNDER HINDU MARRIAGE ACT 1955 IN THE MATTER OF DR. ASHMIT SINHA (Petitioner) Vs. MRS. VANSHIKA SINHA (Respondent) MEMORIAL SUBMITTED ON BEHALF OF RESPONDENT COUNSELS FOR THE RESPONDENT -Memorial submitted on behalf of Respondent- TABLE OF CONTENTS Index of Authorities o o Cases Books and Websites List of Abbreviations Statement of Jurisdiction Statement of Facts Issues for Adjudication Summary of Arguments Arguments Advanced Prayer -Memorial submitted on behalf of Respondent- LIST OF AUTHORITIES CASES 1. Bhagwan Dutt vs Kamla Devi And Anr on 17 October, 1974 2. Gobinda Rani Dasi vs Radha Ballabh Das on 5 July, 1910 3. Anupama Misra vs Bhagaban Misra on 1 November, 1971 4. Ms. Jordan Diengdeh vs S.S. Chopra on 10 May, 1985 5. Ayyalasomayajula Satyanandam v. Ayyalasomayajula Ushadevi, 1987 (1) ALT 335 (DB) 6. U.N. Satyanarayana vs U. Sharada And Anr. on 27 December, 2002 7. Madhusudan vs Smt. Chandrika on 22 March, 1975 -Memorial submitted on behalf of Respondent- BOOKS HINDU LAW HINDU MARRIAGE ACT 1955 CRPC HINDU ADOPTION AND MAINTANCE ACT 1956 WEBSITES www.advocatekhoj.com www.vakilno1.com www.lawyersclubindia.com www.indiankanoon.org www.disabilityindia.co.in -Memorial submitted on behalf of Respondent- LIST OF ABBRIVATION 1. CRPC ……………………………………… CODE OF CRIMINAL PROCEDURE 2. & ……………………………………… AND 3. I.e …………………………………….... THAT IS 4. SEC …………………………………….... SECTION 5. U/S ………………………………………. UNDER SECTION 6. HMA ……………………………………..... HINDU MARRIAGE ACT 7. Can’t ………………………………………. CAN NOT STATEMENT OF JURISDICTION -Memorial submitted on behalf of Respondent- The Petitioner has the honor to move this Court by way of filing a Divorce case on the ground of fraud, unsoundness of mind under section 13 of Hindu Marriage Act, 1955. The present memorandum sets forth the facts, contentions and arguments in the present case. -Memorial submitted on behalf of Respondent- STATEMENT OF FACTS 1. The petitioner and respondent are husband and wife. 2. They married in February, 1978 as per Hindu rituals and ceremonies. Qualification of petitioner is M.Sc.; Ph. d in social work and respondent is M.A in social work. 4. Before their marriage took place, the father of the respondent wrote to the father of petitioner stating that his daughter had a bad attack of sun stroke which affected her mental condition for some time .This fact could be checked from Broadmoor mental hospital or Dr. Aurica Bhattacharya and that he should discuss the matter with the petitioner. 5. But the petitioner or his father did not check it further and marriage was solemnised. 6. Till March, 1981 two daughters were born out of this wedlock. In January 1983, the respondent went to pune to attend the marriage of petitioner’s brother. 7. The petitioner took the respondent to Dr. Joseph Williams, (a Psychiatrist), for getting her examined But Dr. Joseph Williams wanted some time for diagnosis and suggested that she should stay on there for sometime more. 8. The petitioner left her there and came back to Delhi on March 11, 1983 alone. 9. The respondent felt that her husband wanted to build up case that she was of unsound mind and she was being lured to walk into that trap. She did not visit Dr. Joseph Williams again and two days later the respondent followed the petitioner but she went straightway to her parent’s house in Delhi. 10. On March15, 1983 the petitioner wrote letter to the police asking for protection as feared danger to his life from the respondent‘s parents and relatives. 11. On March 19, 1983 the respondent saw the petitioner at his house and meeting was held to resolve the matter amicably. 12. After a brief meeting she left her matrimonial house for the reasons best known to her on March 23, 1983, the respondent wrote to the petitioner complaining against his conduct and -Memorial submitted on behalf of Respondent- asking for money for the maintenance of self and daughters. The respondent also wrote to the secretary of the ministry where the petitioner was serving that he had deserted her and had treated her with extreme cruelty and asking for maintenance for her and her daughters but nothing came out of that. 13. A third daughter was born on August 19, 1983. 14. The petitioner filed a petition on February 19, 1984 for annulment of his marriage with the respondent or alternatively for divorce or the judicial separation. (The annulment was sort on the ground of fraud, divorce, on the ground of unsoundness of mind and judicial separation on the ground of cruelty.) -Memorial submitted on behalf of Respondent- ISSUES RAISED -IWhether the respondent commits any fraud with the petitioner as alleged? -IIWhether the petition for divorce filed by petitioner ought to be dismissed? -III- Whether the petitioner is entitled to get decree of judicial separation on the ground of cruelty? -IV- Whether the respondent is entitled to get maintenance? -Memorial submitted on behalf of Respondent- SUMMARY OF ARGUMENTS I. Whether the respondent commits any fraud with the petitioner as alleged? No, the respondent has not committed any fraud with petitioner. At the time of marriage, the Father of the respondent told everything about the medical condition of his daughter by writing a letter to the father of petitioner. When the petitioner took the respondent to pune for medical checkup, she resisted and left that place after dispersing of her husband from the hospital. As she felt unsafe without his company and reacted the same way the petitioner acted to her. II. Whether the petition for divorce filed by petitioner ought to be dismissed. Yes, the petition filed by the petitioner should be dismissed. As, according to section-5 and 11 of Hindu marriage act 1955 any marriage is voidable if at the time of marriage anyone of the person is of unsound mind but it is clear that the respondent is not unsound of mind from the fact that the respondent and the petitioner had three daughters since the date of marriage. And if she was mentally ill till the date of petition filed then why didn’t he file the petition before. And also no objection was there to him when had lived with her for 5 years. But now he is acting neglecting towards her and wants judicial separation. -Memorial submitted on behalf of Respondent- III. Whether the petitioner is entitled to get decree of judicial separation on the ground of cruelty. No, as the section 12 of Hindu marriage act states that if in any marriage the person is treated with cruelty he/had right to get judicial separation but in this case the husband is not treated with any cruelty by his wife. Instead the wife went to the petitioner house for the resolvement of the situation. IV. Whether the respondent is entitled to get maintenance. Yes, the petitioner is duty bound for his wife and daughters maintenance. The petitioner has to pay maintenance to his wife and their daughters because he is able to pay maintenances and according to Hindu adoption and maintenance act a Hindu wife whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life time and for her daughters till she gets married. -Memorial submitted on behalf of Respondent- ARGUMENTS ADVANCED I. Whether the respondent commits any fraud with the petitioner as alleged? The definition of fraud stated in oxford dictionary is, ‘any wrongful deception intended to result in financial or personal gain is when fraud is committed’. Here fraud is not committed with petitioner as alleged. As, at the time of marriage the time of marriage, the father of the respondent told everything about the medical condition of his daughter by letter to the father of petitioner that states that his daughter had a bad attack of sun stroke which affected her medical condition for some time and this fact could be checked from Broadmoor mental hospital or Dr. Aurica Bhattacharya and that he should discuss matter with petitioner. The hon’ble court is requested to move upon the fact that acc to section-5 of Hindu Marriage Act-1995 conditions of a Hindu Marriage are that at the time of marriage, neither party (sub section-ii, a) is incapable of giving valid consent to its other party about their unsoundness of mind and (b) i.e. capable of giving a valid consent that suffering from mental disorder of such kind that becomes unfit for their marriage. But in here the petitioner’s father was told everything about the medical condition of the respondent and was advised to consult Dr. Aurica Bhattacharya. This clears the fact that there is no hidden fact about the medical condition of the respondent. And everything was cleared between the two parties before the marriage and respondent’s family made full transparency about the respondent’s disorder. -Memorial submitted on behalf of Respondent- In the case of Madhusudan vs Smt. Chandrika on 22 March, 1975, the husband (petitioner) alleged that the wife at the time of marriage was suffering from syphilis for more than three years and that this fact was deliberately concealed by the wife and her father and the husband's consent to the marriage was obtained by fraud within the meaning of Section 12(1) (c) of the Act. It was also alleged that as the wife was suffering from venereal disease in a communicable form for a period of more than three years. The wife in her written statement denied that she was suffering or that she had ever suffered from syphilis. The wife pleaded that she had actually no sexual intercourse before the marriage. It was also pleaded that the husband and his relations had a quarrel with the wife's parents at the time of marriage and that it was with great reluctance that the husband and his parents took the wife to Jabalpur. It was further pleaded that the wife was ill-treated in the husband's place and that later on some interested persons secretly made false and defamatory allegations against her character which prejudiced the husband. As judgment: It will thus see that the word "fraud" in matrimonial law has a technical meaning. It does not include cases of misrepresentation or active concealment even of material facts including (sic) (inducing?) consent of a party. Fraud, as already stated, in the context; of annulment of marriage means such fraud which procures the appearance without the reality of consent, i.e. where; there is no real consent at all. In our opinion, the word "fraud" in Section 12(1) (c) of the Hindu Marriage Act must be understood in the same sense. It is interesting to notice that Section 12(1) of this Act although providing in clause (d) that the marriage can be annulled if the respondent was at the time of the marriage pregnant by some person other than the petitioner, a ground introduced in the English Law by Matrimonial Causes Act, 1937, does not provide that -Memorial submitted on behalf of Respondent- the marriage can be annulled simply on the ground that the respondent was at the time of marriage suffering from venereal disease in a communicable form, a ground which was also introduced in the English Law by the Matrimonial Causes Act, 1937. And acc to the case of Nalini Kumari, Major vs K.S. Bopaiah, Major on 24 November, 2006, it is stated, that the fraudplayed by the respondent and her parents had enabled the petitioner to claim, that, his marriage with the respondent be annulled under the provisions of Section 12 of the Hindu Marriage Act, 1955, ('Act' for short) owing to the presence of fraud factor. It is also stated, that in the presence of fraud, the arrangement that had been made in inducing the petitioner to marry the respondent has turned out to be voidable contract, capable of being declared as voidcompetent Court may annul a marriage by decree of nullity of any marriage solemnized, whether before or after the commencement of the Act, on the ground, that the marriage has not been consummated owing to the impotence of the respondent; that the marriage is in contravention of the condition specified in Clause (ii) of Section 5 of the Act; that the consent of the petitioner or where the consent of the guardian in marriage of the petitioner was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning Petitioner in his petition filed for annulment of marriage on the ground of fraud has stated that the marriage between him and the respondent was solemnized on 8.3.1992 at Gonikoppa as per the provisions of Hindu Law and according to the customs prevailing in the community and after the marriage; a baby girl was born to them on 29.4.1993. So, it is clear and conferred that the respondent never committed fraud with the petitioner. And it’s only that the petitioner wanted to ignore her. II. WHETHER THE PETITION FOR DIVORCE FILED BY THE ETITIONER OUGHT TO BE DISMISSED? -Memorial submitted on behalf of Respondent- Yes, the petition filed by the petitioner should be dismissed. As, according to section-5 and 11 of Hindu marriage act 1955 any marriage is void if at the time of marriage anyone of the person is of unsound mind but it is clear that the respondent is not unsound of mind from the fact that the respondent and the petitioner had three daughters till the date of marriage. Under section 13 of Hindu marriage act, 1955, Divorce states that any marriage solemnized, whether before or after the commencement of the 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 party1a. treated the petitioner with cruelty 2 has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition But in this case the respondent has not shown any cruelty and desertion during six years of their marriage. In the case of U.N. Satyanarayana vs U. Sharada And Anr. on 27 December, 2002, The relationship of the parties is not disputed. The 1st petitioner as PW1 deposed that ever since the marriage on 29-6-1986, the respondent was exhibiting peculiar behavior with a flickering mind. After marriage, she came to know that he was suffering with it since prior to the marriage and he was under the administration of anti-depression drug from his student days. He used to shout against everybody in the house and beat her by using filthy language in a depressed state. She narrated the sequence of events referred in the petition and further stated that it became impossible for her to lead marital life with -Memorial submitted on behalf of Respondent- him or to live at his house. Therefore, she was compelled to leave to her parents' house and educate her son. The respondent was made to work police arrested him and booked a petty case covered by STC No. 669 of 2000 on the file of the IV Special Metropolitan Magistrate. 7. The evidence given by PW1 reiterating the averments in the petition and the further information furnished by her through evidence are amply establishing that the respondent is suffering with Schizophrenia and mental illness and the disease reached a stage due to which there is no possibility to cure it. Prior to the hearing of the matter, a reconciliation effort was made by this Court. The 1st petitioner was also convinced and she readily agreed to extend all possible help for the treatment of the respondent. The father of the respondent, who is presently staying at Varanasi along with his wife, was also secured to prevail on the respondent to agree for treatment and to take the medicines regularly. But, his father after making all his efforts to get the disease of the respondent treated, expressed his helplessness and his difficulty to remain at Hyderabad on account of the sickness of his wife at Varanasi. 8. Section 13(1) (iii) of the Act reads as follows: "Section 13. Divorce :--( 1) any marriage solemnized, whether before The above Section provides for dissolution of the marriage by way of decree of a divorce if one of the spouses has been incurably of unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind, which makes it impossible for the other spouse to live with such person. The respondent is suffering with Schizophrenia and according to the opinion of the medical experts it is in the aggravated form and there is no possibility for cure. In this regard, we wish to refer to Concise Medical Dictionary page No. 566 (Oxford Medical Publications 1980) wherein 'Schizophrenia' is described thus: And In Ayyalasomayajula Satyanandam v. Ayyalasomayajula Ushadevi, 1987 (1) ALT 335 (DB), a Division Bench of this Court in a case for divorce on the ground of unsound mind observed that it is for the petitioner to establish either of incurable unsoundness of the respondent or that the mental disorder is such a kind and to such an extent that the other spouse cannot reasonably be expected to live with the respondent. -Memorial submitted on behalf of Respondent- So it is clear from the facts that the petition filed by the petitioner should be dismissed as the petitioner had three daughters since the date of marriage. And if she was mentally ill till The date of petition filed then why didn’t he file the petition before. And also no objection was there to him when had lived with her for 5 years. But now he is acting neglecting towards her and wants judicial separation. III. WHETHER THE PETITIONER ENTITLED TO GET THE DECREE OF JUDICIAL SEPERARTION ON THE GROUND OF CRUELTY? Judicial separation states that either party to a marriage, whether solemnized before or after the commencement of Hindu marriage act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of Section 13 i.e. divorce, and in the case of a wife also on any of the grounds might have been presented. (2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statement made in such petition, rescind the decree if it considers it just and reasonable to do so. Sub-section 1 of (13) divorce states that after the solemnization of the marriage, treated the petitioner with cruelty. -Memorial submitted on behalf of Respondent- Both the section states that only when the petitioner is treated with cruelty, Judicial separation is granted and in this case no cruelty was seen by the wife i.e. respondent on husband i.e. petitioner. According to the case of Ms. Jordan Diengdeh vs S.S. Chopra on 10 May, 1985 Civil Code- Necessity of-Emphasized. Indian Divorce, Act, 1869-Ss. 18, 19 and 22Petition by wife-Allegation of impotence of husband-Nullity of marriage or judicial separation sought-High Court rejecting prayer for nullity, but granting judicial separation on account of cruelty-Validity of order-Supreme Court holding irretrievable break-down of marriage. Hindu Marriage Act, 1955 ss. 10 and 13BSpecial Marriage Act, 1954-Ss. 23 to 28-Parsi Marriage and Divorce Act, 1936-Ss. 31 to 34-Dissolution of Muslim Marriage Act, 1939-S. 2-Grounds for dissolution of marriage not uniform- Necessity for uniform Civil Code-Stressed. HEADNOTE: The petitioner belonged to the 'Khasi Tribe' of Maghalaya and was born and brought up as a Presbytarian Christian. She is now a member of the Indian Foreign Service. The respondent-husband is a Sikh. They were married under the Indian Christian Marriage Act 1872. The petitioner filed a petition in 1980, for declaration of nullity of marriage or judicial separation under ss. 18, 19 and 22 of the Indian Divorce Act, 1869, on the ground of the impotence of her husband. A Single Judge of the High Court rejected the prayer for declaration of nullity of marriage. HELD: (1) A comparison of the relevant provisions of the Christian Marriage Act 1872, Hindu Marriage Act 1955, Special Marriage Act 1954, Parsi Marriage and Divorce Act 1936, Dissolution of Muslim Marriage Act, 1939, show that the law relating to judicial separation, divorce and nullity of marriage is far, far from uniform. [717 B] (2) Under the Hindu Marriage Act, a decree for the judicial separation may be followed by a decree for the dissolution of marriage on the lapse of 705separation. Under the Hindu Marriage Act, sec. 10 provides for judicial separation. It enables either party to a marriage to seek judicial separation on any of the grounds specified in sec. 13(1) and in the case of a wife also on any of the grounds specified in sub-sec. 2 of sec. 13. Section 11 provides for a declaration that a marriage is a nullity if it contravene as any one of the -Memorial submitted on behalf of Respondent- conditions specified in clauses (i), (iv) and (v) of sec. 5. Sec. 5 (i) requires that neither party has a spouse living at the time of the marriage. Sec. 5 (iv) requires that the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of marriage between the two. Sec. 5(v) requires that the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two. Section 12 further provides that a marriage is voidable and may be annulled if (a) a marriage has not been consummated owing to the impotence of the respondent; or (b) a marriage is in contravention of the conditions should be dissolved. If the provisions of the Hindu Marriage Act are compared with the provisions of the Indian Divorce Act, it will be seen that apart from the total lack of uniformity of grounds on which decrees of nullity of marriage, divorce or judicial separation may be obtained under the two Acts, the Hindu Marriage Act contains a special provision for a joint application by the husband and wife for the grant of a decree of divorce by mutual consent whereas the Indian Divorce Act contains no similar provision. Another very important difference between the two Acts is that under the Hindu Marriage Act, a decree for judicial separation may be followed by a decree for the dissolution of marriage on the lapse of one year or upwards from the date of the passing of a decree for judicial if meanwhile there has been no resumption of cohabitation. There is no corresponding provision under the Indian Divorce Act and a person obtaining a decree for judicial separation will have to remain content with that decree. And according to the case of Anupama Misra vs Bhagaban Misra on 1 November, 1971 It is clear from the narration of the facts given above that if the Misc. Case No. 1/63 succeeds and the decree for judicial separation is set aside, then the decree for divorce cannot be granted on the ground that there has been no resumption of cohabitation as between the parties for a period of two years or upwards after passing of the decree for judicial separation in a proceeding to which they were parties. The proceedings for judicial separation must be restored to its pre-trial stage and the appellant must be given an opportunity to contest the same. I will, therefore, deal with -Memorial submitted on behalf of Respondent- The appellant's letter to her lawyer Sri P.C. Misra requesting the latter not to proceed further in the case is dated 7-9-61 and has been proved as Ext. 1. It recited that her husband, the respondent, approached her on 29-8-61 and again on 2-9-61 and broached the subject of compromising the proceeding regarding judicial separation. It was settled between them that the judicial separation proceeding should be decreed and thereafter he will live with her as her husband in amity as before, and that she believed in this assurance of her husband and having complete faith in such assurance she did not contest the proceeding for judicial separation any further. This letter, Ext. 1, was filed by the appellant The petitioner wants to rescind the decree for judicial separation parsed in O. S. 3/58, on the ground inter alia, that it was not passed after consideration of all the matters provided in Section 23 of the Act. The lower court has refused to rescind holding that the petitioner has failed to prove that there was a resumption of marital relations between her and her husband subsequent to the passing of the decree for judicial separation, but she has not been able to establish it. But the decree for judicial separation having been passed without being satisfied as to the matters specified divorce, made under Section 13(1), Clauses (i) to (viii). Clause (viii) has been deleted by amendment and re-enacted as Subsection (1-A) of that section of the Hindu Marriage Act. The grounds for divorce, as already stated, are (i) that the appellant is living in adultery, that is to say, has committed adultery even after passing of the decree for judicial separation, and (ii) that there has been no resumption of cohabitation as between the parties to the marriage for a period of two years or upwards after the passing of the decree for judicial separation in a proceeding to which they were parties. Hence the petition for judicial separation should be cancelled because in this case the husband is not treated with any cruelty by his wife. Instead the wife went to the petitioner house for the resolvement of the situation. IV. Whether the respondent is entitled to get maintenance? -Memorial submitted on behalf of Respondent- The Hindu adoption and maintenance states that (1) A Hindu wife whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life time. (2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or willfully neglecting her; (b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband; (c) if he is suffering from a virulent form of leprosy; (e) if he has any other wife living; (f) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere; (g) if he has ceased to be a Hindu by conversion to another religion; (h) If there is any other cause justifying her living separately. (3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion. -Memorial submitted on behalf of Respondent- Here, the petitioner is able to pay maintenance to his wife and his daughters till the daughters attain maturity and become able to fulfill their needs themselves but he had to pay maintenance to his wife for life time. According to the case of Gobinda Rani Dasi vs Radha Ballabh Das on 5 July, 1910 Plaintiff consequently asks for a declaration that he and his wife and children are entitled to be maintained out of the estate of Radhika Mohan now in the hands of the defendant, and seeks for a decree for arrears of maintenance from the 16th January 1906 up to the 18th June 1997. In the Court below the plaintiff applied for leave to sue in forma pauperis, and as it was found that he was not possessed of sufficient means to enable him to pay the institution fee, he was allowed to do so in due course. The claim was resisted substantially on the ground that there was no express contract under which the plaintiff could claim maintenance; that under the Hindu Law such a claim was not sustainable; that, in any event, he was not entitled to separate maintenance; and that as he was of bad character and irregular habits and had grossly insulted his mother-in-law, he had lost all rights of maintenance, if he ever had any. The learned Subordinate Judge has found upon the evidence that the express contract for maintenance alleged by the plaintiff has not been established, but he has held that thereallowed to turn him out without any provision for their maintenance. It may be conceded, as laid down by this Court in the case of Tekait Monmohini v. Basanta Kamar 28 C. 751 that an ante-nuptial agreement on the part of the husband that he will never be at liberty to remove his wife from her paternalabode, will not be enforced by a Court of justice on the ground that it is contrary to the rules of Hindu Law which impose a duty upon a Hindu wife to reside with her husband wherever he may choose to reside. It need not also be disputed that such an ante-nuptial -Memorial submitted on behalf of Respondent- agreement on the part of the husband is opposed to public policy, and consequently, the father-in-law will not be assisted by any Court in his endeavour to enforce it. It does not follow, however, that if the son-in-law is willing to abide by the arrangement, the fatherin-law or his representative is at liberty to resile from the position deliberately adopted, and to refuse to maintain him, his wife and children. In our opinion, there is nothing in Hindu Law or in public policy Very special reasons, the Court are entitled to make a decree for separate maintenance. In the case before us, it is abundantly clear upon the evidence that the plaintiff has fallen out with his mother-in-law. Their temper is obviously incompatible, though it may be difficult to apportion the blame for the present strained relations between them. One thing, however, is fairly clear upon the evidence. The mother-in-law has been anxious to alienate part of the property inherited by her from her husband; whether such alienation would be justifiable in law, need not be discussed now, but she has clearly sought to obtain the consent of her daughters, who are the next reversionary heirs, to the intended transfer. Her eldest daughter, apparently with the consent of her husband, has been prepared to accommodate her in this matter, bat her second daughter, the wife of the plaintiff, under the advice of her husband, has declined to join her in the attempted alienation. The plaintiff cannot be blamed for the caution with which he has ached, obviously in the interest of his wife and children, who are the ultimate reversionary heirs. But although such passive obstruction on the part The first ground, urged in support of the cross-objections, is that the decree of the Court below ought to have declared the right of maintenance not merely of the plaintiff bit also of his wife and children. This contention is, in our opinion, partially well-founded. As the suit has been instituted by the plaintiff alone, a declaration cannot be made that his wife and children are entitled to maintenance from the defendant, but in the view we -Memorial submitted on behalf of Respondent- take of the matter, the plaintiff is entitled to a declaration that the amount of maintenance to be allowed to him should be so regulated as to suffice for the needs not only of himself but also of his wife and children, if these latter are not maintained by the defendant as members of her family. If the defendant refuses to receive back the plaintiff in her family circle, the latter is clearly entitled to take away his wife and children, and in such a contingency, the amount allowed to him must be adequate to maintain himself and his family. The qualifying words, therefore, in the decree "only for himself" . And in the case of Bhagwan Dutt vs Kamla Devi And Anr on 17 October, 1974 Section 488 does not confer an absolute right on a neglected wife to get an order of maintenance against the husband nor does it impose an absolute liability on the husband to support her in all circumstances. The use of the word "may" in Section 488(1) indicates that the power conferred on the Magistrate is discretionary. A neglected wife, therefore, cannot, under this Section, claim, as of right, an order of maintenance against the husband "It is obvious from the language of the section that in order to enable a child to claim maintenance it has to be proved that the child is unable to maintain itself'. No such condition has been imposed in the case of a wife. Cases in which maintenance was refused to the wife merely on the ground that she was in a position to maintain herself have, in my view, omitted to consider the implication of this distinction while construing the scope and effect of s. 488. In my opinion, the ability of the wife to maintain herself was not intended by the legislature to deprive her of the right of maintenance conferred by this section, if she is otherwise found entitled to it.." fixing the amount of maintenance, the Magistrate is debarred from taking into consideration the wife’s own separate income or means of support. There is a clear distinction between a wife's locus standi, to file a petition under s. 488 and her being entitled, on merits, to a particular amount of maintenance there under. This distinction appears to have been overlooked in Major Joginder Singh's case (supra). Proof of the -Memorial submitted on behalf of Respondent- preliminary condition attached to a neglected child will establish only his competence to file the petition but his entitlement to maintenance, particularly the fixation of its amount, will still depend upon the discretion of the Magistrate. As the Magistrate is required to exercise that discretion in a just manner, the income of the wife, also, must be put in the scales of justice as against the means of the husband. The object of those provisions being to prevent vagrancy and destitution, the Magistrate has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family. The needs and requirements of the wife for such moderate living (supra) was explained and distinguished. That case in P. T. Ramankutti v. Kalyankutty (supra) therein, the husband was getting a net salary of Rs. 240/-, while the monthly salary. Of the wife was (after deductions) Rs. 210/-. The question was whether the wife in such a financial position had a right to claim maintenance under s.488, Criminal Procedure Code. after referring to the observations of Dua, J. in Major Joginder Singh's case (supra) and surveying the case law on the subject, the learned single Judge of the Kerala High Court correctly summed up the position thus ; "To take the view that in granting maintenance under Section 488 to a wife her personal income also can be considered may Prima-facie appear to be against the language of the section because the condition "unable to maintain itself" appearing therein attaches itself only to child and not to wife. But that condition has application only in considering the maintainability of a petition filed under s.488. A wife can file a petition under that section irrespective of the question whether she is able or unable to maintain herself. But on her application at the time of the granting of monthly PRAYER -Memorial submitted on behalf of Respondent- Wherefore, in the light of the issues raised, arguments advanced, reasons given and authorities cited, this Hon’ble Court may be pleased to: Declare that the respondent has not committed fraud any with the petitioner and marriage is not voidable. Declare that the petition filed by the petitioner is not liable and he can’t get divorce from his wife. Declare that the petitioner is not entitled to get judicial separation on the ground of cruelty. Declare that the respondent and her daughter should get maintenance from the petitioner. Pass any other order, which the court may deem fit in light of justice, equity and good conscience. All of which is respectfully submitted COUNSEL FOR THE RESPONDENT -Memorial submitted on behalf of Respondent-