PROJECT

ON

Pleading for Divorce on the Ground of Desertion

SUBMITTED TO:
Ms. Neha Sinha
Faculty, DPC

SUBMITTED BY:
Uplabdhi Mohan Gupta
Roll No. 169
Semester VIII, B.A., LL.B (Hons.)

SUBMITTED ON:
15th February, 2016

Hidayatullah National Law University Raipur, Chhattisgar

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 TABLE OF CONTENTS

1. ACKNOWLEDGMENTS.....3
2. INTRODUCTION.5
3. OBJECTIVES........................................................................4
4. RESEARCH METHODOLOGY .................................4
5. CHAPTERIZATION:
1. Drafting.....5
2. Conveyancing...7
3. Differences between drafting and conveyancing......8
4. Pleading....9
5. Fundamental Principles of Pleading....11
6. Mock Problem............................................11
Draft petition under Section 13 of Hindu Marriage Act, 1955..12
Verification......14
7. CONCLUSION....................15
8. BIBLIOGRAPHY....16

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 ACKNOWLEDGMENTS

I feel highly elated to work on the topic Pleading for Divorce on the Ground of Desertion.

The practical realization of this project has obligated the assistance of many persons. I express
my deepest regard and gratitude for Ms. Neha Sinha, Faculty of DPC. Her consistent
supervision, constant inspiration and invaluable guidance have been of immense help in
understanding and carrying out the nuances of the project report.

I would like to thank my family and friends without whose support and encouragement, this
project would not have been a reality.

I take this opportunity to also thank the University and the Vice Chancellor for providing
extensive database resources in the Library and through Internet.

Some printing errors might have crept in, which are deeply regretted. It would be grateful to
receive comments and suggestions to further improve this project report.

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 RESEARCH METHODOLOGY

This research is descriptive and analytical in nature.

Secondary and Electronic resources have been largely used to gather information and
data about the topic.
Books and other reference as guided by Faculty have been primarily helpful in giving this
project a firm structure.
Websites, dictionaries and articles have also been referred.
Footnotes have been provided where ever necessary.

OBJECTIVES

To study the basic principles of Drafting, Pleading and conveyancing

To analyse the difference between drafting and conveyancing.
To draft a written statement and plaint on the given mock problem.

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 INTRODUCTION

DRAFTING

Drafting may be defined as the synthesis of law and fact in a language form 1. This is the essence
of the process of drafting. All three characteristics rank equally in importance. In other words,
legal drafting is the crystallization and expression in definitive form of a legal right, privilege,
function, duty, or status. It is the development and preparation of legal instruments such as
constitutions, statutes, regulations, ordinances, contracts, wills, conveyances, indentures, trusts
and leases, etc.2
The process of drafting operates in two planes:
conceptual and
verbal
Besides seeking the right words, the draftsman seeks the right concepts. Drafting, therefore, is
first thinking and second composing.
Drafting, in legal sense, means an act of preparing the legal documents like agreements,
contracts, deeds etc3.
A proper understanding of drafting cannot be realised unless the nexus between the law, the
facts, and the language is fully understood and accepted. Drafting of legal documents requires, as
a pre-requisite, the skills of a draftsman, the knowledge of facts and law so as to put facts in a
systematized sequence to give a correct presentation of legal status, privileges, rights and duties
of the parties, and obligations arising out of mutual understanding or prevalent customs or usages
or social norms or business conventions, as the case may be, terms and conditions, breaches and

1
Stanley Robinson: Drafting Its Application to Conveyancing and Commercial Documents (1980); (Butterworths);
Chapter 1, p.3
2
G.C. Thorton, Legislative Drafting (4th ed., 1996)
3
Susan Blake, A practical approach to Legal Advice & Drafting (5th ed. 1997)

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remedies etc.4 in a self-contained and self-explanatory form without any patent or latent
ambiguity or doubtful connotation. To collect, consolidate and co-ordinate the above facts in the
form of a document, it requires serious thinking followed by prompt action to reduce the
available information into writing with a legal meaning, open for judicial interpretation to derive
the same sense and intentions of the parties with which and for which it has been prepared,
adopted and signed.

4
Dr. S.R. Myneni, Drafting Pleading and Conveyancing (1st ed., 2003)

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 CONVEYANCING

Technically speaking, conveyancing is the art of drafting of deeds and documents whereby land
or interest in land i.e. immovable property, is transferred by one person to another; but the
drafting of commercial and other documents is also commonly understood to be included in the
expression.5
Conveyance is the action of conveyancing, a means or way of conveyancing, an instrument by
which title to property is transferred, a means of transport, vehicle. In England, the word
conveyance has been defined differently in different statutes. Section 205 of the Law of
Property Act, 1925 provides that the conveyance includes mortgage, charge, lease, assent,
vesting declaration, vesting instrument, disclaimer, release and every other assurance of property
or of any interest therein by any instrument except a will. Conveyance6, as defined in clause
10 of Section 2 of the Indian Stamp Act, 1899, includes a conveyance on sale and every
instrument by which property, whether movable or immovable, is transferred inter vivos and
which is not otherwise specifically provided by Schedule I of the Act.7 Section 5 of the
Transfer of Property Act, 1882 (Indian) makes use of the word conveyance in the wider sense
as referred to above.8
Thus, conveyance is an act of conveyancing or transferring any property whether movable or
immovable from one person to another permitted by customs, conventions and law within the
legal structure of the country. As such, deed of transfer is a conveyance deed which could be for
movable or immovable property and according to the Transfer of Property Act, 1882, transfer
may be by sale, by lease, by giving gift, by exchange, by will or bequeathment. But acquisition
of property by inheritance does not amount to transfer under the strict sense of legal meaning.9

5
Dr. S.R. Myneni, Drafting Pleading and Conveyancing (1st ed., 2003)
6
Section 2 of the Indian Stamp Act, 1899
7
Section 5 of the Transfer of Property Act, 1882
8
G.C. Thorton, Legislative Drafting (4th ed., 1996)
9
Susan Blake, A practical approach to Legal Advice & Drafting (5th ed. 1997)

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 DIFFERENCES BETWEEN DRAFTING AND CONVEYANCING

Both the terms drafting and conveyancing provide the same meaning although these terms are
not interchangeable. Conveyancing gives more stress on documentation much concerned with
the transfer of property from one person to another, whereas drafting gives a general meaning
synonymous to preparation of drafting of documents. Document may include documents relating
to transfer of property as well as other documents in a sense as per definition given in Section
3(18) of the General Clauses Act, 1897 which include any matter written, expressed or described
upon any substance by means of letters, figures or mark, which is intended to be used for the
purpose of recording that matter. For example, for a banker the document would mean loan
agreement, deed of mortgage, charge, pledge, guarantee, etc10. For a businessman, document
would mean something as defined under Section 2(4) of the Indian Sale of Goods Act, 1930 so
as to include a document of title to goods i.e. Bill of lading, dock-warrant, warehouse-keepers
certificate, wharfingers certificate, railway receipt multi-model transport document warrant or
order for the delivery of goods and any other document used in ordinary course of business as
proof of the possession or control of goods or authorising or purporting to authorise, either by
endorsement or by delivery, the possessor of the document to transfer or receive goods thereby
represented. The Companies Act, 1956 defines vide Section 2(15) the term document in still
wider concept so as to include summons, notices, requisitions, order, other legal process, and
registers, whether issued, sent or kept in pursuance of this or any other Act, or otherwise. Thus,
drafting may cover all types of documents in business usages.11
In India, the commercial houses, banks and financial institutions have been using the term
documentation in substitution of the words drafting and conveyancing. Documentation
refers to the activity which symbolises preparation of documents including finalisation and
execution thereof.

10
Dr. S.R. Myneni, Drafting Pleading and Conveyancing (1st ed., 2003)
11
Susan Blake, A practical approach to Legal Advice & Drafting (5th ed. 1997)

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 PLEADING

Pleadings generally mean either a plaint or a written statement12. The main objective behind
formulating the rules of pleadings is to find out and narrow down the controversy between the
parties.13
Drafting of plaints, applications, reply/written statement require the skills and knowledge of a
draftsman. These should be draf\ted after looking into the provisions of law so that no relevant
detail is omitted.
The present day system of pleadings in our country is based on the provisions of the Civil
Procedure Code, 1908 supplemented from time to time by rules in that behalf by High Courts of
the States. There are rules of the Supreme Court and rules by special enactments as well.
For one, words plaints and complaints are nearly synonymous. In both, the expression of
grievance is predominant. Verily, when a suitor files a statement of grievance he is the plaintiff
and he files a complaint containing allegations and claims remedy. As days passed, we have
taken up the word Plaint for the Civil Court and the word Complaint for the Criminal Court.
Order 6, R. 1 of Civil Procedure Code (C.P.C.) defines pleading. It means either a plaint or a
written statement.
With the passing of time written pleadings supplanted archaic oral pleadings. When reduced to
writing the scope of confusion, for obvious reasons, was made narrower.14
In this we find the object of a pleading which aims at ascertaining precisely the points for
contention of the parties to a suit. The rules of pleading and other ancillary rules contained in the
Code of Civil Procedure have one main object in view. It is to find out and narrow down the
controversy between the parties. The function of pleadings is to give fair notice of the case which
has to be met so that the opposing party may direct his evidence to the issue disclosed by them.
Procedural law is intended to facilitate and not to obstruct the course of substantive justice.
Provisions relating to pleadings in civil cases are meant to give each side intimation of the case

12
Order 6, R. 1 of Civil Procedure Code (C.P.C).
13
Dr. N.K. Chakrabarti, Principles of Legislation & Legislative Drafting (2nd ed. 2007)
14
Dr. S.R. Myneni, Drafting Pleading and Conveyancing (1st ed., 2003)

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of the other so that it may be met, to enable courts to determine what is really at issue between
parties, and to prevent deviations from the course which litigation on particular causes of action
must take15. Necessarily, a pleading is accurate only when stripped of verbosity it pinpoints
succinctly the plaintiffs grievances giving him the right to sue for the desired relief, or when it
briefly sets out the defendants defence. When so done, there would be hardly any scope left to
beat about the bush or to take the other party by surprise.16
Pleadings should be read not by the piecemeal but as a whole and should be liberally construed.
Every venial defect should not be allowed to defeat a pleading, for a plaintiffs case should not be
defeated merely on the ground of some technical defect in his pleadings provided he succeeds on
the real issues of the case. It has been held: Rigid construction of the law of pleadings was
inappropriate and not calculated to serve the cause of justice for which the law of procedure was
largely designed17. This should, of course, not be taken as an excuse for pleadings extremely lax
and irrelevant, argumentative and inaccurate.
In construing the plaint, the court has to look at the substance of the plaint rather that its mere
form. If, on the whole and in substance, the suitor appears to ask for some relief as stated, the
court can look at the substance of the relief. Pleadings have to be interpreted not with
formalistic rigour but with latitude of awareness of low legal literacy of poor people.18
In Udhav Singh v. Madhava Rao Scindia, Sarkaria19, J held20: A pleading has to be read as a
whole to ascertain its import. It is not permissible to cull out a sentence or a passage and to read
it out of the context in isolation. Although it is the substance and not mere the form that has to be
looked into, the pleading has to be construed as it stands without addition or subtraction of
words, or change of its apparent grammatical sense. The intention of the party concerned is to be
gathered, primarily, from the tenor and term of his pleading taken as a whole. 21

15
Ganesh Trading v. Motiram, AIR 1970 SC 480
16
Susan Blake, A practical approach to Legal Advice & Drafting (5th ed. 1997)
17
AIR 1969 Del. 120
18
id
19
AIR 1976 SC 744
20
Udhav Singh v. Madhava Rao Scindia, AIR 1976 SC 744
21
Dr. S.R. Myneni, Drafting Pleading and Conveyancing (1st ed., 2003)

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 FUNDAMENTAL PRINCIPLES OF PLEADING

The fundamental rule of pleadings is contained in provisions of O. 6, R. 2 of C.P.C. which

enjoins :
(1) Every pleading shall contain only,a statement in a concise form of the material facts on
which the party pleading relies for his claim or defence, as the case may be, but not the evidence
by which they are to be proved.
(2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively,
each allegation being, so far as is conveniently, contained in a separate paragraph.
(3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.22

MOCK PROBLEM

Mr. Siddharth Malhotra married to Mrs. Sonia Malhotra on 21st Feb, 2011 in Mumbai. The
marriage ceremony took place in accordance with the Hindu Marriage Act, 1955. The couple
lived happily for two years after which differences started to come up between them. On 31st
April, 2013 Mr. Siddharth Malhotra took up a job in Delhi. His wife later on joined him but six
months later she returned to Mumbai. Mr. Siddharth started ignoring his wifes calls and resisted
any attempts by her to contact him. On 12th January, 2014 Mrs. Malhotra went to Delhi to visit
her husband. On reaching his residence he refused to let her in and asked her to go back. He
further added that he does not want to live with her anymore. On hearing this she immediately
went to her parents house in Delhi. Thereafter many attempts were made by the families of the
bride and the groom to reconcile the marriage. But Mr. Siddharth remained adamant and refused
to cohabit with his wife.

22
Dr. N.K. Chakrabarti, Principles of Legislation & Legislative Drafting (2nd ed. 2007)

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 PETITION FOR DIVORCE

IN THE FAMILY COURT OF DELHI

Case No. : 6234/2016

Petition under Section13 of the Hindu Marriage Act 1955, and in the matter of:

Mrs. Sonia Malhotra aged 28 years Petitioner

W/o Mr. Siddharth Malhotra

D/o Mr. Abhimanyu Tiwari

R/o House No. 2, B-Block, Main Road, Sunder Nagar, Delhi

versus

Mr. Siddharth Malhotra aged 30 years ....Respondent

S/o Mr. Abhijeet Malhotra

R/o Plot No. 12, Shiv Vihar Colony, Saran Nagar, Delhi

THE PETITIONER MOST RESPECTFULLY SUBMITS AS UNDER:

1. The petitioner most respectfully submits that she is a R/O House No. 2, B Block, Main Road,
Sunder Nagar, Delhi and married the respondent on 21st Feb. 2011 in Mumbai according to
Hindu rites and ceremonies and their marriage is governed by the Hindu Marriage Act, 1955.

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2. That the petitioner resided happily with the respondent for two years after differences started
to crop up between them.

3. That ever since the said marriage and until the thirty first day of April 2013, the petitioner,
Mrs. Sonia Malhotra, and the respondent, Mr. Siddharth Malhotra, cohabited and lived as
husband and wife at Plot No. 12, Shiv Vihar Colony, Saran Nagar, Delhi, when he took up a job
in Delhi and started living there. After a while his wife joined him and stayed with him for a
period of six months after which she returned to Mumbai.

4. That soon after the petitioners return to Mumbai the respondent started to ignore her and
when she went to visit him on 12th January, 2014 he refused to let her come inside his house and
told her that he did not want to live with her anymore and withdrew himself from the society of
the petitioner without any probable or reasonable cause and thereby deserted her to all purposes
and intents. Thereafter, the petitioner started residing with her parents.

5. That the petitoner has not in any way been party to or connived at or condoned any of the said
acts of the respondent, Mr. Siddharth Malhotra.

6. That this court has jurisdiction to entertain this application as the petitioner and the respondent
last resided as a married couple at Plot No. 12, Shiv Vihar Colony, Saran Nagar, Delhi.

7. The applicant therefore prays for a decree of divorce between the petitioner and the said
respondent as even after repeated attempts the differences between them cannot be reconciled.
An interim relief by way of alimony and any other relief may also be granted.

8. That the cost of petition may also be granted.

Date: Petitioners Signature.

Place:

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 VERIFICATION

I, Mrs. Sonia Malhotra, daughter of Mr. Abhimanyu Tiwari and wife of Mr. Siddharth Malhotra
aged 28 years by occupation housewife residing at House No. 2, B-Block, Main Road, Sunder
Nagar, Delhi do hereby solemnly affirm and say as follows:

I am the above-named petitioner and I know and I have made my acquaintance with the facts and
circumstances of this case.

The statements in paragraphs 1 to 8 are true to my knowledge and belief.

I sign this verification on this 21st of January 2016 at the Family Court at Delhi.

Place: Petitioners Signature

Date:

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 CONCLUSION

Drafting of legal documents is as killed job.A draftsman,in the first instance,must ascertain the
names, description and addresses of the parties to the instrument. The duty of a draftsman is to
express the intention of the parties clearly and concisely in technical language.A corporate
executive must note down the most important requirements of law which must be fulfilled while
drafting complete instrument on the subject. All the time the draftsman must keep his eye on the
rules of legal interpretation and the case-law on the meaning of particular words and choose his
phraseology to fit them. Apart from the above facts, there are certain rules that should also be
followed while drafting the documents. For using particular words and phrases in the
conveyancing, the draftsman must be cautious about the appropriate use of the words and should
be clear of its meaning. Drafting of documents is very important part of legal documentation.
Documents are subject to interpretation when no clear meaning could be inferred by a simple
reading of the documents.

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 REFERENCES

1. B. R. Atre, Legislative Drafting (2nd ed., 2006)

2. Constantin Stefanou & Helen Xanthaki, Drafting Legislation (2008)
3. Dr. N.K. Chakrabarti, Principles of Legislation & Legislative Drafting (2nd ed. 2007)
4. Dr. S.R. Myneni, Drafting Pleading and Conveyancing (1st ed., 2003)
5. G.C. Thorton, Legislative Drafting (4th ed., 1996)
6. Susan Blake, A practical approach to Legal Advice & Drafting (5th ed. 1997)

16