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Problem Details
Title Kerala Law Academy 2011
Problem By Anang Tayal
Content

 

THE 22nd ALL INDIA MOOT COURT COMPETITION, 2011 FOR THE
KERALA LAW ACADEMY TROPHY
MOOT PROBLEM
Resma v. Anubhav
Harithasthan is a State in the Indian Union. Janpur, the capital of the State, is a big metro city
having cosmopolitan culture. Anubhav and Resma who were two IT professionals working at Jhanpur
executed the following agreement on 14-10- 2003.
Agreement between Anubhav Sharon son of Binu Sharon aged 35 years D 45 Blue Mount Jhanpur-
34 (First Party) and Reshma daughter of Mithin Khande aged 23 years 45 Mist Dale Jhanpur-57 (Second
Party) executed on 14-10 2003 .
The parties are unregistered domestic partners who desire to live together in an unregistered
relationship in which First Party financially supports Second Party, and Second Party renders services to
First Party as companion, housekeeper, homemaker and cook. The parties desire to combine their efforts
and earnings and share equally the property accumulated through their individual or combined efforts.
The parties therefore agree as follows:
1. Sharing of Earnings, Services and Property
(a) First Party shall use best efforts through his personal services and skills to generate earnings,
salaries, commissions or other income sufficient to provide a standard of living mutually acceptable
to the parties.
(b) Second Party shall render services to First Party as companion, housekeeper, homemaker and
cook, and assume responsibility for related household tasks.
(c) The parties shall combine their efforts and earnings and shall share equally the property
accumulated through their individual or combined efforts, as further provided in Paragraph 4.
2. Support
First Party shall provide for all of Second Party's financial support, commencing as of the date of this
Agreement and continuing for the rest of Second Party's life, notwithstanding the parties' permanent
separation, as defined in Paragraph 3.This support obligation shall, however, terminate on the first to occur
of any of the following events:
(a) the death of either party
(b) the marriage of Second Party to a third person or the entry into a registered domestic partnership
by Second Party and a third person; or
(c) the cohabitation of Second Party with a third person.
This Agreement shall terminate as to all unexecuted provisions on the first occur of any of the following
events:
(a) on the written consent of the parties,
(b) on the marriage, registration or cohabitation of either party with a third person,
2
3. Permanent Separation
As used in this Agreement, the permanent separation of the parties means that the parties have
been regularly living apart in separate dwelling places for a period of at least three months after one party
has notified the other in writing that he or she intends to cease cohabitation with that party.
4. Division of Property
On termination of this Agreement, the parties shall immediately divide their jointly-owned property.
The jointly-held property shall be divided equally, unless otherwise agreed to by the parties.
The agreement was signed in the presence of two witnesses Haritha and Sham Lal. On 1-1-2004
Anubhav and Resma started a Consultancy Service in their office cum residence flat situated in the small
town of Dhanpur.
On 3-6-2010 Resma filed an application before the First Class Judicial Magistrate Dhanpur under
Section 12 of Protection of Women from Domestic Violence Act, 2005. It was alleged that Anubhav had left
their flat in the first week of March 2010 and had sold her gold ornaments worth Rs 22 lakhs without her
consent and money so received was used for starting joint business with another lady Mudhurima. In the
petition it was stated that she had filed a complaint in this regard before the Protection Officer on 7-4-2010.
After examining ten witnesses, including Protection Officer, Haritha, Mudhurima and Sham Lal, the
Magistrate awarded Rs 23 lakhs as compensation. In the judgment dated 9-11-2010 the Court rejected the
contention on behalf of Anubhav that the petition might be dismissed on the basis of the interpretation given
by the Supreme Court to the words ‘person aggrieved’ and ‘living together’, through the decision in D.
Velusamy v. D. Patchaiammal (CRIMINAL APPEAL NOS. 2028-2029 Of 2010 dated 22-10-2010 available
at http://www.worldlii.org/in/cases/INSC/2010/886.html).
On 16-11-2010 Anubhav filed a petition before the High Court of Harithasthan challenging the Order
of the First Class Magistrate dated 9-11-2010 under Art 226 of the Constitution. It was submitted that the
failure to consider the decision in D. Velusamy v. D. Patchaiammal would be treated as an error of law
apparent on the face of record. It was further submitted that huge amount of compensation was awarded
without properly applying the legal provisions. On 2-12 -2010 the Court set aside the findings of the
Magistrate and remanded the case to the Magistrate with the direction that the case should be decided on
the basis of the views expressed by the Supreme Court in D. Velusamy v. D. Patchaiammal, regarding the
living together relationship, considering the fact that it is the law declared by the Supreme Court.
Being the respondent of the writ petition Resma filed a petition before the Supreme Court under Art
136 of the Constitution seeking the leave to file appeal to challenge the Order of the High Court dated 2-12-
2010 and the leave to appeal was granted on 16-12-2010.
The main contention of the appellant is that the action of the High Court is against the well settled
principles of law relating to writ jurisdiction. It is further submitted that the view taken by the Supreme Court
in D. Velusamy v. D. Patchaiammal, regarding the living together relationship, may not be treated as the law
declared by the Supreme Court since the observations relating to living together do not form part of ratio
decidendi. Alternatively, it is submitted that rules relating to living together relationship expressed in para 33
and 34 of D. Velusamy v.D. Patchaiammal may be overruled. The case is posted for final hearing.
 
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