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The Marriage between the Appellant and the Respondent was solemnized on 31-
01-2007 as per the Hindu Religious Rites and Customs. Out of the said wedlock a son,
namely Vimal was born and he is 10 years old now. At the time of marriage the Respondent
was Business Man at U.K. After marriage the Appellant and the Respondent lived together
for 3 months and thereafter lived separately because of the misunderstanding between
them. Since the harassment and cruelty of the Respondent crossed the extreme extent, the
appellant was compelled to file a petition for divorce on the ground of cruelty. The
Respondent filled an original petition under the Guardians and Wards Act for the custody
of the 10 years old minor child, and a petition under section 9 of Hindu Marriage Act for
Restitution of Conjugal Right. The main allegation of the Respondent was that, the
Appellant was having illegal intimacy with another person. The second contention was
that, if the child is in the company of the Appellant, it would affect the education of the
child. The Respondent also contended that he is financially better than the Appellant and
hence the custody of the child be given to him. The Appellant defended the matter and filed
a written statement denying all the allegations.

In the meantime, the Subordinate Judge of Trichy passed an exparte decree of

divorce in favour of the Appellant and the petition for restitution of conjugal rights filed
by the Respondent was dismissed for default. After considering the oral evidence adduced
by the parties and examining the documentary evidence and also interviewing the child the
trial court came to the conclusion keeping in view that welfare of the child the custody
should be given to the mother and dismissed the original petition of the father filed under
the Guardians and Wards Act.
Against the order of the Trial Court, the Respondent filed an appeal before the High
Court of Madras. The contention of the Respondent was that, contrary to the deposition
made by the Appellant before the trial court that, she would not remarry, immediately after
the judgment of the petition filed under the Guardians and Wards Act, she remarried. It is,
therefore, contended that the continued custody of the child with the Appellant would be
detrimental to the interest, progress and welfare of the child.

The High Court, without giving an opportunity to express the willingness of the
child, allowed the appeal on the ground of remarriage of the Appellant, i.e., Mother of the
child. The High Court also held that the Respondent – Father is a Business man in U.K.
and the father is more apt and suitable to protect the interest of the minor child and also in
imparting education to the required standard of the child.

Aggrieved against the order passed by the High Court, the Appellant has preferred
the appeal.
Raise Issues and Put forth your arguments.



Mr. Sunil and Ms. Saina both were belonging to IAS batch 2000. They were good friends.
They decided to convert that friendship into marital relationship. Accordingly, with the
consent of the parents they got married under Special Marriage Act, 1954 in the year 2004.
Sunil was an orthodox person and had high belief in mythology and in Hindu God. He had
firmed belief that to attain Moksha man need a son, therefore, he insisted for having a son
from the marriage. During the matrimonial life of 5 years Saina was employed as IAS
officer. She took matrimonial leave and delivered two babies, one Geeta in 2006 and
second Seeta in 2009. Due to absence of male child there were quarrels and altercations
between Husband and Wife. This resulted into divorce between them by mutual consent.

During this difficult period, Saina was transferred to Delhi. She met Mr. Ram a Smart,
Handsome, and efficient IAS officer who expressed his love and desire to marry with her.
As he was already married she waited for divorce. Immediately after divorce they got
married. Soon after the marriage Saina was busy with her postings and heavy
administrative work. Therefore, she ultimately took decision not to have children within 5
years of marriage. She was not taking proper care and giving love and affection to her
husband. Mr. Ram tried his level best to persuade the matter. But, he could not succeed.
Saina told Seeta and Geeta that Mr. Ram is not their father. She always avoided to have
pleasure of Seeta & Geeta’s company as their father.

In 2012 Saina was transferred from Delhi to Mumbai. She shifted with her daughters to
Mumbai and Mr. Ram continued in Delhi. The behaviour of Saina did not change. She was
also dominant and abusive on phone and in person whenever she was meeting Mr. Ram.
As Mr. Ram was alone in Delhi and no one to take care of him, he hired a domestic servant,
Prabha aged 17 years for daily persuades. As maid servant was asked to stay in the house,
she was taking care of Mr. Ram. This leads to development of live in relationship between

In June 2013, when Saina visited Delhi she came to know about the relationship as Prabha
was pregnant. Being aggrieved with misconduct and extramarital affair Saina served notice
of divorce.

Wife filed divorce petition in Family Court, Delhi on the ground of irretrievable breakdown
of marriage. Family Court dismissed the said petition. Against decision of Family Court
wife filed appeal in Delhi High Court on the same ground. High Court dismissed the appeal
as there is no specific provision under existing laws. Then wife filed Special Leave Petition
in Supreme Court stating that divorce should be granted on irretrievable breakdown of

Meanwhile, Prabha who was in living relationship with Mr. Ram, filed separate suit for
maintenance under Domestic Violence Act, 2005 against Mr. Ram. Her petition was
rejected by Family Court, Delhi on the ground that she was in live in relationship with the
married preson. Being aggrieved with the decision of Family Court, Prabha filed appeal in
the Delhi High Court claiming the maintenance under The Domestic Violence Act, 2005.
High Court Dismissed the appeal. Against order of High Court Prabha filed Special Leave
Petition in Supreme Court.

Hence both Petitions are before Supreme Court. Supreme Court in its discretion clubbed
both matters and called for final hearing.