1.

THE SPECIAL LEAVE PETITION FILED UNDER ARTICLE 136 OF THE

CONSTITUTION OF INDIA, 1949 IS MAINTAINABLE.

It is humbly submitted that the Special Leave Petition against the judgment of Hon’ble High

Court is maintainable under Article 136 of the Constitution of India. Article 136 empowers the

Supreme Court to grant in discretion Special leave to Appeal from any judgement, decree,

determination, sentence or order in any cause or matter passed or made by any court or tribunal

in the territory of India. In this case,

1. The appellant doesn’t have locus standi

2. SC can interefere in High Court’s decision only when a question of law invokes.

SC is the highest authority and its jurisdiction cannot be revoked in any case.

The jurisdiction conferred under Art. 136 on the SC are corrective one and not a restrictive one.

And further the SC has itself propogated that A duty is enjoined upon the SC to exercise its

power by setting right the illegality in the judgments is well-settled that illegality must not be

allowed to be perpetrated and failure by the SC to interfere with the same would amount to

allowing the illegality to be perpetuated in N Suriyakala v. A Mohan Doss & ors.

Special leave would be granted from a second appellant decision only where the judgment raises

issue of law of general public importance. In this case, the right of wives whose husbands have

illicit affair or adultery is in question. In India, 30% of married women in one instance or another

have encountered their husband’s adulterous behavior and hence, this is essentially a question of
law of general public importance and therefore, the appeal is maintainable under article 136 of

the Constitution of India.

II. SAINA SHOULD BE GRANTED DIVORCE ON IRRETRIVEABLE BREAKDOWN

OF MARRIAGE.

Irretrievable Breakdown of Marriage is defined as:

“The situation that exists when either or both spouses are no longer able or willing to live with

each other, thereby destroying their husband and wife relationship with no hope of resumption of

spousal duties.”

In other words, Irretrievable breakdown of marriage can be defined as such failure in the

matrimonial relationship or such circumstances adverse to that relationship that no reasonable

probability remains of the spouses remaining together as husband and wife for mutual comfort

and support.

In the case of Navin Kohli vs Neelu Kohli, the Supreme Court made a strong plea to the Union of

India for incorporating irretrievable breakdown of the marriage as a separate ground for

divorce.

Irretrievable breakdown of marriage is now considered, in the laws of a number of countries, a

good ground of dissolving the marriage by granting a decree of divorce. The Supreme Court

came to the conclusion that on a consideration of the various aspects of the case if it was clear

that the marriage was dead both emotionally and practically and there was no chance at all of its

revival and continuation of such a relationship would only be for name's sake then the Court may

very well grant divorce. The Court apparently became concerned with the situation and exercised

its power under Article 142 of the Constitution to do complete justice in the matter by granting a

decree of divorce by mutual consent and dissolving the marriage between the parties.
In this case,

a. the appellant and respondent have not lived like husband and wife for a long time and they

rarely have lived together after marriage. Hence, their relationship could be nothing more than a

rebound from their previous relationships and hence, this is one of the ground on which

irretrievable breakdown of marriage could be stated.

b. the next ground is that the respondent have inflicted cruelty on the appellant. The appellant

when returned back to her husband found out that he is cohabiting with their servant and had

even impregnanted her. This caused great mental pain for the appellant and he was mentally

disturbed knowing that her legally wedded husband is now someone else’s live in partner. The

court held that inflicting cruelty or mental torture is something that could not be tolerated upon in

Sumitran Rober vs. Sophia.

III. WHETHER PRABHA IS LIABLE TO GET MAINTENANCE?

It is most humbly submitted before this Hon’ble court that the petitioner is entitled to get

maintenance under S.20 of The Protection of Women from Domestic Violence Act 2005 by

filing an application under sub-section (1) of Sec. 12 of the said Act.

As per Sec.20 of Domestic Violence Act, the person claiming maintenance need not be wife as

the term used is aggrieved person and in the instant case it is immaterial whether the appellant

and respondent are legally wedded.

The Punjab and Haryana High Court in Ajay Bhardwaj vs. Jyotsana and others, has dealt with

the status and rights of a woman in a live-in relationship.

The Supreme Court in Indra Sarma vs. V.K.V. Sarma defined live-in relationships in five distinct

ways- A domestic cohabitation between an adult unmarried male and an adult unmarried

female. A domestic cohabitation between a married man and an adult unmarried woman (entered

mutually) was termed as legal and therein the live in partner have to be paid maintenance.

As per Sec.20(1)(d) of the Act Monetary relief in the form of maintenance is to be granted both

to the appellant as well as her child and also the child is entitled to maintenance under

Sec.125(1)(b) even though the child illegitimate or minor but the point is that he or she is unable

to maintain and by Sec 125(c) child who has attainted majority and has any physical or mental

abnormality or injury is entitled to maintenance even after attainment of majority.

Hence, it is humbly submitted that Prabha is entitled to maintenance.