Moot Court Memorial

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Moot Court Memorial
Bachelor of Business Administration & Bachelor of Legislative Law (Chandigarh

University)
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DR. N.N. JAIN NATIONAL MOOT COURT COMPETITION, 2019
TEAM CODE: P 42
BEFORE THE HON’BLE DISTRICT COURT, JALANDHAR
IN THE MATTER OF:
SUNITA ..... PETITIONER
V.
MAHESH ….RESPONDENT
Petition No._____ of 2013
WRITTEN SUBMISSIONS ON BEHALF OF PETITIONER

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MEMORANDUM for PETITIONER
TABLE OF CONTENTS
Table of Contents .................................................................................................................. i
List of Abbreviations ............................................................................................................... iii
Index of Authorities .................................................................................................................. iv
Statement of Jurisdiction........................................................................................................ viii
Statement of Facts .............................................................................................................. ix
Statement of Issues ................................................................................................................... xi
Summary of Arguments ...................................................................................................xii
Arguments Advanced .......................................................................................................... 1
I. That the Suit is maintainable under limitation period and this honorable District Court
has the jurisdiction of the Issue. ............................................................................................. 1
I.I That this honorable District Court has the jurisdiction of the Issue. ............................. 1
I.II That the petition is filed within the limitation period. ................................................. 1
II. That the marriage of Sunita and Mahesh is valid as per the provisions of The Hindu
Marriage Act, 1955. ............................................................................................................... 2
II.I That section 7 of the Hindu Marriage Act, 1955 recognizes the marriage by customs.
............................................................................................................................................ 2
II.II That the Ravidasia community is part of the Sikh community. ................................. 4
II.III That the Anand Karaj is an established custom under the Sikh community. ............ 4
II.IV In arguendo, the Ravidasia community followed the rituals and customs of Anand
Karaj marriage from time immemorial. ............................................................................. 6
II.V That the marriage between Sunita and Mahesh was solemnized under the prevalent
customs. ............................................................................................................................. 7
II.VI That the plea of invalidity of marriage cannot be taken now by the Respondent ..... 7
III. That the non-contest by the wife of a divorce petition filed by the husband in a
Foreign Court does not imply that she had conceded to the jurisdiction of the Foreign
Court. 9
III.I That the Petitioner did not contest both the matters on merits. .................................. 9
TABLE OF CONTENTS PAGE | i

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III.II That the Foreign Court did not have jurisdiction of the issue in the cases of the ex-
parte decree. ..................................................................................................................... 10
III.III That the ex-parte decision is valid only when the notice has been given and the
party had waived the opportunity to contest. ................................................................... 11
III.IV That the wife was not having legal aid and no proper means to approach the
Foreign Court. .................................................................................................................. 12
IV. That the principle of Res-Judicata under Section 13 of the Code of Civil Procedure,
1908 is not applicable to the proceedings being initiated in District Court, Jalandhar. ...... 12
IV.I That the suit is not barred under sub section A of section 13 of Code of Civil
Procedure. ........................................................................................................................ 13
IV.II That the suit is not barred under sub section B of section 13 of Code of Civil
Procedure. ........................................................................................................................ 16
IV.III That the Suit is not barred under sub section C of section 13 of Code of Civil
Procedure. ........................................................................................................................ 21
IV.IV That the Suit is not barred under sub section D of section 13 of Code of Civil
Procedure. ........................................................................................................................ 22
II.V That the Suit is barred under sub section F of section 13 of Code of Civil Procedure.
.......................................................................................................................................... 24
V. That the foreign decree is not valid under section 41 of the Indian Evidence Act. .. 24
Prayer .....................................................................................................................................xii
Commented [s1]: Font style is times new Roman here
TABLE OF CONTENTS PAGE | ii

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LIST OF ABBREVIATIONS
Abbreviations Full-Form
¶ Paragraph
§ Section
SC Supreme Court
HC High Court
HMA Hindu Marriage Act
CPC Code of Civil Procedure
Ed. Edition
v. Versus
Anr. Another
Ors. Others
AIR All India Report
Hon’ble Honourable
SCC Supreme Court Cases
i.e., That is
LIST OF ABBREVIATIONS PAGE | iii

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INDEX OF AUTHORITIES
CASES
Ajay Desai v. Rajshree 18

Ashok Hurra and Ors. v. Rupa Bipin Zaveri & Ors 19
Chand Dhawan v. Jawaharlal Dhawan 22
Chandrabhagabai Karwar v. Sambhaji Karwar 4
Chetan Das v. Kamla Devi 18
Darshan Singh v. The State of Punjab 5
Didar Singh Cheeda v. Sohan Singh Ram Singh and Ors 4
Dilip Kumar Karmakar v. Biju Rani Karmakar 17
Dinesh Kumar Thakur v. Sonal Thakur 8
Elizabeth Dinshaw v. Arvand M. Dinshaw 21
Gautam Chandra Nag v. Jyotsna Nag 17
Ghaziabad Development Authority and Ors. v. Machhla Devi 21
Harpreet Singh Sekhon v. Rajwant Kaur 1
Jitendra Arora v. Sukriti Arora 9
Kakali Das v. Ashish Das 18
Kanika Goel v. State of Delhi 5
Lahari Sukhamuri v. Sobhan Kodali 9
Lila Gupta v. Laxmi Narayan and Ors 19
Low v. Boueerie 7
M. Gomathi v. S. Natarajan 13
Mahboob Sahab v. Syed Ismail and Ors 23
Malleswar Amma v. Pratap Reddy 18
Manoj Kumar and Ors. v. State of Haryana and Ors 22
Mohammad Sadique v. Darbara Singh Guru 5
Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw and Anr 8
Murarilal v. Saraswati 18
N.G. Dastane v. S. Dastane 9
Neelam Kumar v. Dayarani 16,18
INDEX OF AUTHORITIES PAGE | iv

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Neeraja Saraph v. Jayant V Saraph 10

Nithya Anand Raghwan v. The state of NCT and Delhi 10
Paikas Khaka v. State of Bihar and Ors 21
Pankaj Mahajan v. Dimple 20
Pradeep Kumar Nanda v. Sanghamitra Binakar 17
Prateek Gupta v. Shilpi Gupta 2
Rabindra Nath v. State 3
Reynold Rajamoni v. Union of India 14
Rishikesh Sharma v. Saroj Sharma 17
Rohini Kumari v. Narendra Singh 10
Ruchi Majoo v. Sanjeev Majoo 20
Rupak Rathi v. Anita Chaudhary 9
Sanghamitra Ghosh v. Kajal Kumar Ghosh 17
Sanskaran Govindan v. Lakshmi Bharti and Ors 13
Santhini v. Vijaya Venkatesh 13
Sarita Sharma v. Sushil Sharma 12
Saroj Rani v. Sudarshan Kumar Chaddha 19
Satrucharla Vijaya Rama Raju v. Nimmaka Jaya Raju and Ors 22
Satya v. Teja Singh 9
Seema v. Ashwani Kumar 12
Shankerappa v. Sushilabai 2
Shanti Dev Barma v. Kanchan Prawa 4
Shyam Sundar Kohli v. Susma Kohli 18
Sima Palet v. Pradip Kumar 18
Smt. P.Jayalakshmi and Another v. Revichandran and Another 1
Smt. Surinder Kaur Sandhu v. Harbax Singh Sandhu and Anr 8
State Of Punjab And Ors v. Gurdev Singh 2
Suman Kapur v. Sudhir Kapur 11
Surain Singh v. Dr Bhagat Singh 6
Surjit Kaur v. Garja Singh 4
Surya V.Adanan v. State of Tamil Nadu 10
Swiss Ribbons Pvt. Ltd. & Anr v. Union of India & Ors 1
INDEX OF AUTHORITIES PAGE | v

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Tapan Kumar Chakraborty v. Jyotsna Chakraborty 15

V. Bhagat v. D. Bhagat 18
Vikas Aggarwal v. Anubha 11
Vishu Dutt Sharma v. Manju sharma 15
Y. Narasimha Rao and Ors. Vs. Y. Venkata Lakshmi and Ors 8
Yashwant Kumar v. Kunta Bai 18
STATUTES Commented [s2]: In Neelam v Daryani, do baar cited hai aisa

dikh raha hai. Aur do baar ka bhi tareeka neeche CPC 13(b) se
different hai. Make it Uniform
Article 113, The Limitation Act 1963 2
Section 1, Hindu Marriage Act, 1955 11
Section 115, The Indian Evidence Act, 1872 7
Section 116, The Indian Evidence Act, 1872 7
Section 117, The Indian Evidence Act 1872 7
Section 13(a), Code of Civil Procedure, 1908 12
Section 13(b) of the Code of Civil Procedure,1908 14 &16
Section 13(c), Code of Civil Procedure,1908 19
Section 13(d), Code of Civil Procedure,1908 20
Section 13(f), Code of Civil Procedure,1908 21
Section 19, The Hindu Marriage Act, 1955 12
Section 2, The Anand Marriage Act, 1909 3
Section 28, The Hindu Marriage Act, 1955. 1
Section 3(a), The Hindu Marriage Act, 1955 3
Section 41, The Indian Evidence Act,1872 22
Section 5, 7, 11 and 12, The Hindu Marriage Act, 1955 3
Section 9, Code of Civil Procedure 1908 1
The Anand Marriage Act, 1909 6
INDEX OF AUTHORITIES PAGE | vi

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REPORTS
71st Law Commission Report. 17

Ibbetson 1883, rpt. 1970:294 4
ARTICLES
Anand Karaj and the Lavan 5

Bhardwaj, P. (2019). Decree of Divorce Granted by a Foreign 16
Court and its Maintainability in India
Harinder Boparai, Reappraisal of Bars to Divorce: A 17
comparative Study
Kusum, “Irretrievable Breakdown of Marriage: A Ground for 15
Divorce
Supreme Court on Children 11
The genealogy of a dalit faith: The Ravidassia Dharm and caste 6
conflicts in contemporary Punjab
BOOKS
Family Law I & II, Poonam Pradhan Saxena, Halsbury’s Law’s 11

of India
Family Law Lectures Family Law I, Kusum, 2007 11
Mulla Dinesh Fardunji, Principles Of Hindu Law, 21st edn 11
Paras Diwan, Hindu law, 2nd edition, 2005, 15
Stephen James Fitzjames, A Digest of the Law of Evidence 7
INDEX OF AUTHORITIES PAGE | vii

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STATEMENT OF JURISDICTION
This Hon’ble Court has jurisdiction of the petition under Section 9 of the
Hindu Marriage Act.
Section 9: Restitution of conjugal rights.:
When either the husband or the wife has, without reasonable excuse,
withdrawn from the society of the other, the aggrieved party may apply,
by petition to the district court, for restitution of conjugal rights and the
court, on being satisfied of the truth of the statements made in such
petition and that there is no legal ground why the application should not
be granted, may decree restitution of conjugal rights accordingly. [
Explanation. —Where a question arises whether there has been
reasonable excuse for withdrawal from the society, the burden of proving
reasonable excuse shall be on the person who has withdrawn from the
society.]
STATEMENT OF JURISDICTION PAGE | viii

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STATEMENT OF FACTS
Time period Facts
2007 Sunita and Mahesh both residents of Jalandhar, belonging

to the Ravidasia community of Punjab, who are Hindus by
religion, got married in Anand Karaj form of marriage,
which is the marriage ceremony of Sikhs. The couple got
their marriage registered as per the provisions of the Hindu
Marriage Act, 1955 and in effect a marriage certificate was
issued by the authorities.
2008 & 2011 Out of this wedlock, two children were born.
Respectively
2008 After taking retirement from the Indian Army, Mahesh went
to England for higher studies and stayed there for two
years.
April 2010 Mahesh moved to Canada and called his wife to join him
along with their first child.
January Their second child was born in Canada.
2011
February He went to New York. Thereafter he asked Sunita to go back
2011 to India.
March 2011 Sunita along with her children came back to Punjab (India).
After moving to New York, Mahesh severed all his contacts
with Sunita. He has developed an extramarital affair with a
lady named Elizabeth Prescott.
January 2012 Sunita wrote a letter to Mahesh expressing her willingness
to join Mahesh in New York. Mahesh in reply wrote to
Sunita that she should not come to New York, as he was
interested in getting their marriage dissolved.
April 2012 He filed a petition for divorce in Trial Court of New York on
the ground that his marriage has irretrievably broken down.
STATEMENT OF FACTS PAGE | ix

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Sunita could not contest these proceedings as she had no

means to go to New York.
In July 2012 The Trial Court of New York granted a divorce decree in
favor of Mahesh. Further, the court ordered that the
husband would pay to the wife and children an amount of
Rs. 50,000 per month for their maintenance. Since Mahesh
failed to pay maintenance to wife and children, Sunita
approached the Trial Court of New York through a letter
and prayed that she be provided legal aid. Thereafter,
proceedings were initiated and warrants of arrest were
issued against Mahesh. She further said that the ex parte
decree of divorce obtained by the husband was not binding
on her and was illegal and that she continues to be the wife
of Mahesh. She further asserted that as per the provisions
of the Hindu Marriage Act, 1956, the grounds of divorce
under Section 13 of the Act are available to the wife under
the given set of circumstances. In fact, she is the actual
victim, who was being further victimized by the order of the
New York, Trial Court.
April 2013 Sunita filed a petition under Section 9 of the Hindu
Marriage Act, 1955 for Restitution Of Conjugal Rights in the
District Court, Jalandhar, Mahesh appeared in the court
and filed an application for dismissal of the petition. He did
not file any written statement and he referred to the decree
of divorce granted by the Trial Court of New York and said
that despite notice, Sunita did not consent the same and by
not raising any objection she is deemed to have accepted
the jurisdiction of Foreign Court in trying the petition and
thus making the decree nisi-absolute by the Foreign Court
and is thus estopped from filing the present petition (Under
Section 11 read with Section 151 of Code of Civil Procedure,
1908).
STATEMENT OF FACTS PAGE | x

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STATEMENT OF ISSUES
1. Whether the marriage of Sunita and Mahesh is valid as per the

provisions of The Hindu Marriage Act, 1955?
2. Whether non-contest by wife of divorce petition filed by the husband in a

Foreign Court implied that she had conceded to the jurisdiction of the
Foreign Court?
3. Whether the principle of Res-Judicata under Section 11 of Code of Civil

Procedure, 1908 is applicable to the proceedings being initiated in
District Court, Jalandhar?
Additionally, the petitioner will address two more following issues:

1. Whether this Honorable Court has the jurisdiction of the issue and the
petition is filed under limitation period?
2. Whether the judgment of Foreign Court is final and conclusive under

section 41 of The Indian Evidence Act?
STATEMENT OF ISSUES PAGE |xi

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SUMMARY OF ARGUMENTS
I. It is submitted that the petition is filed under the limitation period and
this Honorable Court has the jurisdiction of the present matter.
II. It is submitted that the marriage under section 7 of The Hindu Marriage
Act can take place under the prevalent customs. It is submitted that the
Ravidasia community is the part of the Sikh community and Anand Karaj
ceremony is the established custom under of the community, therefore,
the marriage is valid under section 7. Even if the Ravidasia community is
not part of the Sikh community, the Ravidasia community has followed
the custom of the Anand Karaj community since time immemorial,
therefore, the marriage is valid. Moreover, the plea of invalidity of
marriage cannot be taken now by the defendant because of the estoppel.
III. It is submitted that the petitioner had not conceded to the jurisdiction of
the New York court. She had merely, challenged the legality of the order,
which can be construed as a challenge to the jurisdiction. Moreover, the
decision first decision was ex-parte and the second decision was not
heard on the basis of merits, therefore, she had not submitted to the
jurisdiction of the Court of New York.
IV. It is submitted that the suit is not barred because of the Res Judicata
under section 11 read with section 151 and specifically under section 13
of the Code of Civil Procedure. It is submitted that the decree by Foreign
Court falls under section 13(a) as the judgment was not pronounced by
the competent Court, under section 13(b) because the judgment was not
decided as per the law of India, under section 13(c) as the judgment was
not decided on the merits, under section 13(d) as the judgment is
opposed to principles of natural justice, under section 13(f) as the law of
India has been breached.
V. Lastly, it is submitted that section 41 of the Indian Evidence Act is not
applicable in the present fact scenario as the foreign decree was not
pronounced by the Foreign Court.
SUMMARY OF ARGUMENTS PAGE | xii

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ARGUMENTS ADVANCED
I. THAT THE SUIT IS MAINTAINABLE UNDER LIMITATION PERIOD AND THIS
HONORABLE DISTRICT COURT HAS THE JURISDICTION OF THE ISSUE.

I.I That this honorable District Court has the jurisdiction of the Issue.
¶1. It is humbly submitted that without any basis and the aggrieved can file
a suit for the declaration as to the validity of a marriage or as to the
matrimonial status of any person in District Court. It was held that
although the matrimonial proceeding was moved before the Family
Court, the same could not have provided for a legal bar for the aggrieved
party instituting a proceeding in District Court.1
¶2. It is humbly submitted that there is an issue of the res judicata of the
Foreign Court in the present fact scenario, therefore Civil Court has the
jurisdiction. It is most humbly submitted that according to the
interpretation of the Apex Court of § 9 of Code of Civil Procedure,2the Commented [s3]: Space after citation
Apex Court has held that when a specific Court does not have authority
for the remedy required, the jurisdiction of the Civil Court starts existing
again.3
¶3. It is honorably submitted that in the present factual scenario, in
addition to the remedy of restitution of conjugal rights, the setting aside
of the decree of Foreign Court is been prayed which the Family Court is
not competent to provide, therefore in interest of delivering the justice,
the District Court of civil jurisdiction has the jurisdiction to decide this
issue.
¶4. Hence, this District Court has the jurisdiction to adjudicate the issue.
I.II That the petition is filed within the limitation period.
¶5. It is humbly submitted that in the several cases4, it is contended that Commented [s4]: After coma
according to the § 28 of the HMA, 1955 pertinent to Appeals from
1 Smt. P. Jayalakshmi and Another v. Revichandran and Another, AIR 1992 AP 192 (India).
2 Code of Civil Procedure, Section 9, Act no. 5 of 1908 (India).
3 Swiss Ribbons Pvt. Ltd. & Anr v. Union of India & Ors., W.P. (c) 99 of 2018 (India).
4 Harpreet Singh Sekhon v. Rajwant Kaur, 2014, ILR 1 P & H 876 (India).
ARGUMENTS ADVANCED PAGE|1

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decrees and orders5; the party is time-barred of the limitation period for Commented [s5]: After coma
filing an appeal which is mentioned as ninety days after the decree has
been passed by the Court. However, the Honorable Courts have
dismissed it by stating that it is merely a technical lapse and cannot be
termed at the hand as appeal as it is the separate new suit filed before
this Court.
¶6. It is honorably submitted that this is the fresh suit regarding the
restitution of conjugal rights rather than any appeal of the foreign
decree. The foreign decree is an issue that needs to be determined to
conclude the issue of the remedy seeks by the Petitioner of restitution of
conjugal rights.6
¶7. A suit for declaration is governed by Article 113 of the Limitation Act,
1963 which is a residuary article.7 It is envisaged therein that any suit
for which no period of limitation is provided elsewhere in the schedule,
the limitation is three years when the right to file the suit accrues which
in facts and circumstances would be when the status of the Petitioner as
a wife of the Respondent is denied.8
¶8. Therefore, it is submitted that this suit is well within the limitation
period as per the relevant provisions.
II. THAT THE MARRIAGE OF SUNITA AND MAHESH IS VALID AS PER THE PROVISIONS
OF THE HINDU MARRIAGE ACT, 1955.
II.I That section 7 of the Hindu Marriage Act, 1955 recognizes the
marriage by customs.
¶9. It is humbly submitted that after fulfilling of all the mandatory essential
of a valid marriage mentioned under § 5 of the HMA, 19559; § 7 of the
HMA, 195510 states that a Hindu marriage i.e., one under the present
Act- what is required is substantial compliance with only those rites
and ceremonies, performance of which is, by the customary law of
5 The Hindu Marriage Act, Section 28, Act no. 25 of 1955 (India).
6 Prateek Gupta v. Shilpi Gupta, (2018) 2 SCC 309 (India).
7 The Limitation Act, Article 113, Act no. 36 of 1963 (India).
8 State Of Punjab And Ors v. Gurdev Singh, (1991) 4SCC 1 (India).

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either party, deemed as absolutely necessary.

¶10. It is humbly submitted that non- performance of such rites and
ceremonies of prime necessity would be regarded as a failure to
solemnize the marriage and no valid Hindu marriage can result. This is
because a marriage not duly solemnized by the performance of essential
ceremonies is, under the Act, no marriage at all.11
¶11. It is humbly submitted that as the custom is ‘transcendent Law’ and
expressly recognized by this section in the matter of performance of the
marriage ceremonies, it is open to any party called upon to establish of
a Hindu marriage to show that the customary rites and ceremonies of
one of the spouses had been performed. The custom must, of course, be
a valid custom.12
¶12. It is humbly submitted that whether it is a caste custom or a custom of
any sub-caste or custom of a particular locality or a family, it must be
ancient, certain and reasonable and not opposed to public policy.13
¶13. It is honorably submitted that in the present factual scenario, both the
parties are Sikh by religion and performed all the required ceremony of
Anand Karaj which is also recognized by law and as a custom which
they follow time immemorial is valid and recognized under § 2 of Anand
Marriage Act, 1909.14 The marriage between Sunita and Mahesh
solemnized by validly performing all the customary ceremonies and
registered the same under § 8 of the HMA, 1955.
¶14. It is humbly submitted that according to § 11 of the HMA, 1955 which
mentioned about Void Marriages; the marriage would be null and void
by the passes of decree by competent Court if it contravenes any one of
the conditions specified in clauses (i), (iv) and (v) of § 5. Following the
provision of HMA, 1955 such as § 5, 7, 11 and 12.15
¶15. It is honorably submitted that Sunita and Mahesh are competent
parties to give effect to solemnizing of the marriage and performed all
11 Shankerappa v. Sushilabai, AIR 1984 Kant 112 (India).

12 The Hindu Marriage Act, Section 3(a), Act no. 25 of 1955 (India).
13 Rabindra Nath v. State, AIR 1969 Cal 55 (India).
14 The Anand Marriage Act, Section 2, Act No. 07 of 1909 (India).
15 The Hindu Marriage Act, Section 5,7,11 & 12, Act no. 25 of 1955 (India).

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the essential ceremony for a valid marriage. Therefore, their marriage is

governed and valid under § 7 read with § 11 of the HMA.
¶16. Therefore, the marriage is valid under § 7 of the HMA.
II.II That the Ravidasia community is part of the Sikh community.
¶17. It is humbly submitted that the segment of Dalit Sikhs consists

of Ramdasias and Ravidasias. They are chamars converted to the Sikh
religion. Religious conversion also changes the caste name. In some
cases, a change of religion is also accompanied by a change of
occupation. A scavenger is known as chuhra in Hinduism whereas
Musalli and Kutana in Islam; and Mazhbi and Rangreta in the
Sikhism. A leather-worker is known as chamar in Hinduism; Mochi in
Islam and Ravidasia in Sikhism. Weaver chamar is known as Julaha in
Hinduism; Paoli in Islam; and Ramdasia in Sikhism. Ramdasias are
also known as Khalsa Biradar.16
¶18. It is humbly submitted that in a case, it was contended that Ramdassia
and Ravidassia both are different castes and therefore the former is
Schedule Caste mentioned under Constitution of India and the latter is
not but the Court rejected his contention and held that the Court did
not find any distinctive characteristics between both the Ramdassia
and Ravidassia community; both are part of Sikh.17 Therefore it is
submitted that the Ravidasia community is part of the Sikh community.
II.III That the Anand Karaj is an established custom under the Sikh
community.
¶19. It is humbly submitted that before the codification, it was a rule that
the marriage should be solemnized according to shastric or customary
rites. If the necessary ceremonies are not performed then it is not a
valid marriage.18 And in the present factual scenario, both parties have
performed the essential ceremony of Anand Karaj ceremony which is a
well-recognized custom in the Sikh community.
¶20. It is humbly submitted that the Hindu marriage contemplated by the
16 Ibbetson 1883, rpt. 1970:294.
17 Didar Singh Cheeda Vs. Sohan Singh Ram Singh and Ors AIR 1966 P H 282 (India).
18 Shanti Dev Barma v. Kanchan Prawa, AIR 1991 SC 816 (India).

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Act is a ceremonial marriage and it must be solemnized in accordance

with the customary rites and ceremonies of one of the two parties and
the word ‘solemnize’ means, ‘to celebrate the marriage with proper
ceremonies and in the due form’.19 Unless the marriage is celebrated or
performed with proper ceremonies and due for, it cannot be said to be
‘solemnized’. Merely going through certain ceremonies with the
intention that the parties are taken to be married, will not make them
ceremonies prescribed by law or approved by any established custom.20
¶21. It is honorably submitted that "Anand Karaj", literally, "joyful
ceremonial occasion or proceedings" is the name given to the Sikh
marriage ceremony. For Sikhs, married status is the norm and the
ideal; through it, according to their belief, come to the best
opportunities for serving God's purpose and the well-being of humanity,
and it affords the best means of fulfillment of individuality and
attainment of bliss. Sikhism does not repudiate vows of celibacy,
renunciation or the sannyasin state, but it does discourage it and
advocates marital life as the best way of living.21
¶22. It is honorably submitted that The core of the Anand Karaj (the 'blissful
ceremony') is the 'lavan', wherein shabads are sung with the bride and
groom circumambulating the Guru Granth Sahib.22 The ceremony
serves to provide the foundational principles towards a successful
marriage and also places the marriage within the context of unity with
God. Guru Ram Das Ji composed the four stanzas of Lavan to be sung
and recited as the core of the Anand Karaj.23
¶23. It is humbly submitted that it was originally legalized in India through
the passage of the Anand Marriage Act of 1909 but is now governed by
the Sikh Reht Maryada (Sikh code of conduct and conventions) that was
issued by the Shiromani Gurdwara Prabandhak Committee (SGPC).
And later regulated by the Anand Marriage Act, 2012 (amendment) Bill,
19 Chandrabhagabai Karwar v. Sambhaji Karwar, AIR 2007 Bom, 201 (India).
20 Surjit Kaur v. Garja Singh, AIR 1994 SC 135 (India).
21 Mohammad Sadique v. Darbara Singh Guru, (2016) 11 SCC 617 (India).
22 Anand Karaj and the Lavan, https://www.sikhism.com/news/anand-karaj-and-lavan
[Accessed 6 Sep. 2019].

23 Kanika Goel v. State of Delhi, (2018) 9 SCC 578 (India).

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after which Sikhs are able to register their marriages under the Anand
Marriage Act instead of the HMA, with President Pratibha Devi Singh
Patil giving her assent to a bill passed by Parliament on 7 June 2012 in
the budget session.24 Commented [s6]: Id not italicized.
¶24. It is honorably submitted that in the present factual scenario, the

husband and wife perform all the essential ceremonies according to
Anand Karaj which usually performed by Sikh where both the party
were Sikh and register their marriage under § 8 of HMA, 1955.
¶25. Therefore, it is submitted that the Anand Karaj is an established
custom of the Sikh community.
II.IV In arguendo, the Ravidasia community followed the rituals and
customs of Anand Karaj marriage from time immemorial.
¶26. It is humbly submitted that in 1579, the fifth Guru, Guru Arjan Dev Ji,
and Mata Ganga were the first couple to be married through the Anand
Karaj ceremony. The ceremony is now universally observed by the
Sikhs. All the ceremonies under the Anand Karaj are performed since
time immemorial.25
¶27. It is humbly submitted that the Ramdasia marriage ceremony is known
as ‘Anand Karaj’, which has been recognized by the customs from the
time immemorial. Ravidasia community is strictly against the practice
of dowry at the time of marriage and grants equal rights to men and
women during the process of the wedding. A celebration of union, a
Ravidasia wedding spans through several days of pre and post-wedding
ceremonies that include Anand Karaj custom.26
¶28. It is humbly submitted that the rich culture and strict adherence to
religious codes of conduct make the Anand Karaj wedding a study in
contrasts. When saptapadi happened in the Hindu marriage solemnized
after the completion of seventh phera (round) around the Agni (Sacred
fire) whereas in Sikh; marriage solemnized after the fourth phera
24 Id.
25 Darshan Singh v. The State of Punjab, Criminal Revision No. 96 of 1977 Punjab and
Haryana High Court (India).
26 Pashaura Singh and Louis E. Fenech, The oxford Handbook of Sikh Studies, Oxford
University Press, March 2014.

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(round) around the Granth Sahib together.27 Commented [s7]: Id not italicized
¶29. It is honorably submitted that the Ravidasia community has certain

prevailing customs with regards to the marriage.28 The primary chaos
arise in 2009 when the Ravidasia sect demanded separate religion was
what ceremonies they are going to follow on the occasions of marriage,
birth and etc.29
¶30. It is honorably submitted that the customs followed by the Ravidasia
community are one and the same that is being followed by the Sikhs
from the time immemorial. Therefore, it can be concluded that the
Ravidasia community also followed the Anand Karaj marriage custom.
¶31. Therefore, it is submitted that even if the Ravidasia community is not
considered as a part of the Sikh community, they have followed the
custom of Anand Karaj marriage.
II.V That the marriage between Sunita and Mahesh was solemnized
under the prevalent customs.
¶32. It is humbly submitted that according to § 2 of the Anand Marriage Act,

1909 which talks about “Validity of Anand marriages”—all marriages
which may be or may have been duly solemnized according to the Sikh
marriage ceremony called Anand. (Commonly known as Anand Karaj)
shall be, and shall be deemed to have been with effect from the date of
the solemnization or each respectively, good and valid in law.30
¶33. It is humbly submitted that since the marriage can be solemnized as
per the prevailing customs under § 7 of the HMA, and the Anand Karaj
marriage is an established custom for the Ravidasia community.
¶34. Therefore, it is submitted that the marriage between the Petitioner and
the Respondent is valid in the eyes of law.
II.VI That the plea of invalidity of marriage cannot be taken now by the
Respondent
27 Id.
28 Surain Singh v. Dr Bhagat Singh, (1968) ILR 1 P & H 342 (India).
29 Ronki Ram, The genealogy of a dalit faith: The Ravidassia Dharm and caste conflicts in
contemporary Punjab, SAGE Publications, New Delhi, 2010.

30 The Anand Marriage Act, 1909; Act No. 07 of 1909 (India).

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¶35. It is humbly submitted that the law for estoppel or the rule of exclusion
of certain evidence under certain circumstances, like between tenant
and landlord, licensee of person in possession and licensor (s. 116)31, or Commented [s8]: After coma
Commented [s9R8]:
as between acceptor and drawer of a bill of exchange, as between Bailee
and bailor and licensor and license (s. 117)32. Commented [s10]: Aftter full stop
¶36. It is humbly submitted that Estoppel is a procedure of proof. § 115 of

evidence act reads: “When one person has, by his declaration, act or
omission, intentionally caused or permitted another person to believe a
thing to be true and to act upon such belief, neither he nor his
representative shall be allowed, in any suit or proceeding between
himself and such person or his representative, to deny the truth of that
thing”33 Commented [s11]: No full stop?
¶37. It is honorably submitted that the Respondent has already submitted in

the Foreign Court where he pleaded for the decree of divorce. A suit for
divorce can only be filled when the party recognizes the marriage. By
filling the suit for divorce, the Respondent has already recognized the
validity of the marriage and therefore, cannot contest the validity of the
marriage again.
¶38. The doctrine of estoppel belongs rather to substantive than to adjective
law.34 Yet it has been shown that estoppels are not on the same footing
as the rules of Substantive law embodied in irrefutable presumptions,
and estoppels will not generally found a cause of action at common law,
for they involve no claim.35 However, it is said that they may support
claims to equitable relief and they may amount to a defense when they
prevent a Petitioner proving some facts, essential to his case.
Accordingly, estoppels have some characteristics of substantive law.36
¶39. Therefore, it is humbly submitted that the marriage is valid as it’s also
been recognized by the Respondent before.
31 The Indian Evidence Act, Section 116, Act No. 1 of 1872 (India).
34 Stephen James Fitzjames, A Digest of the Law of Evidence 210 (2008).
35 Low v. Boueerie, (1891) 382 (105) CA (United Kingdom).
36 Y. Narasimha Rao and Ors. v. Y. Venkata Lakshmi and Ors., (1991) 3 SCC 451 (India).

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III. THAT THE NON-CONTEST BY THE WIFE OF A DIVORCE PETITION FILED BY THE
HUSBAND IN A FOREIGN COURT DOES NOT IMPLY THAT SHE HAD CONCEDED TO
THE JURISDICTION OF THE FOREIGN COURT.

III.I That the Petitioner did not contest both the matters on merits.
¶40. It is humbly submitted that the general rule is that if one of the
partners' contests divorce filed in Foreign Land it would be said that
he/she consented to the jurisdiction of that Court, in such a case the
decree would be considered to be a conclusive one.37 The issue
primarily arises because of the competence of the decree of the Foreign
Court and the Petitioner’s act of filing an application in the Foreign
Court.38
¶41. It is honorably submitted that the Petitioner had not contested at all in
the first proceedings on April 2012. Therefore, there was no contest
from the Petitioner in that issue at all and therefore, she had not
consented to the jurisdiction of the Court.
¶42. It is honorably submitted that the Petitioner had filed the letter for the
legal aid. Soon after getting legal aid, she had already mentioned that
the ex-parte decree is not valid and illegal. The use of word illegal in
addition to the ex-parte decision can be very well interpreted as
objection regarding the jurisdiction of the Court.
¶43. It is humbly submitted that the party would say to be conceded to the
jurisdiction of the Court if the party did not object to the jurisdiction of
the Foreign Court and contested the issue on the basis of merits.39 It is
a settled position of law that the party is said to submit the jurisdiction
when it contests the issue in the Court without any preliminary
objection with regards to jurisdiction.40
¶44. It is honorably submitted that Sunita had never contested the matter in
issue in the Foreign Court on the basis of merits and as per the
provisions of HMA, therefore, she had never conceded to the jurisdiction
37 Smt. Surinder Kaur Sandhu v. Harbax Singh Sandhu and Anr., (1984) 3 SCC 698 (India).
38 Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw and Anr., (1987) 1 SCC 42 (India).
40 Dinesh Kumar Thakur v. Sonal Thakur, AIR 2018 SC 2094 (India).

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of the Foreign Court.

¶45. One of the exceptions that SC has permitted to the above rule laid by it
are as follows in a case where the husband has filed for divorce in a
foreign land is the wife voluntarily and effectively attends the Court
HMA.41
¶46. It is honorably submitted that the Petitioner had merely submitted in
the Foreign Court regarding the ex-parte decision being invalid and the
decree being illegal, the issue of divorce has not been contested by the
Petitioner on the grounds mentioned under HMA.
¶47. Therefore, it is submitted that the Petitioner did not contest both the
matters on merits.
III.II That the Foreign Court did not have jurisdiction of the issue in
the cases of the ex-parte decree.
¶48. It is humbly submitted that the ex parte decision of the Foreign Court
in the matrimonial issues will be considered is a nullity.
¶49. It is humbly submitted that the non-applicant always has an option not
to attend nor actively participate in the Foreign Court proceedings.42
This would be taken as the non-applicant did not submit to the
jurisdiction of the foreign Court. This, however, does not mean that the
non-applicant is not even required to be served in the Foreign Court
proceedings. Non-service would amount to the denial of opportunity to
be heard.43
¶50. It is honourably submitted that as per the above-mentioned position of
law, the Petitioner had done no wrong by not attending and actively
participating in the Foreign Court. The wife had merely not attended the
proceedings and this in no manner can be interpreted that they have
submitted to the jurisdiction of the moot.
¶51. It is humbly submitted that as the non-applicant did not submit to the
jurisdiction, it is further said that this non-applicant did not chance a
41 Rupak Rathi v. Anita Chaudhary, (2014) 175(2) PLR 407 (India).

42 N.G. Dastane v. S. Dastane, (1975) 2 SCC 326 (India).
43 Lahari Sukhamuri v. Sobhan Kodali, AIR 2019 SC 2881 (India).

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judgment in his/her favour.44 Challenge to the Foreign Court decree in

such a situation may be entertained by the Indian Courts.45
¶52. Therefore, it is humbly submitted that the Foreign Court does not have
jurisdiction of the issue in the cases of the ex-parte decree.
III.III That the ex-parte decision is valid only when the notice has been
given and the party had waived the opportunity to contest.
¶53. It is humbly submitted that the exception to the ex-parte decision is if

the party to whom the notice was served had voluntarily waived up
their right.46 When an ex-parte decree is passed by a Foreign Court, it
would not be valid and conclusive in India. A decree would be
considered ex-parte if the summons is not served on the opposite
party. However, if such decree was deliberately left to go ex-parte i.e.
no summons is served on the opposite party then the Indian Courts
would not allow this fraud.
¶54. There are essentially two ingredients to satisfy the validity of the ex-
parte decision. Firstly, that the relevant notice was given47, secondly, Commented [s12]: After coma
that the party has voluntarily waived up the right to contest48. Commented [s13]:
¶55. It is honourably submitted that the Petitioner was given the notice
regarding the suit being filed in the Trial Court of New York.49 However,
it is submitted that the Petitioner did not voluntarily waive up her right
in the present fact scenario. Sunita did not contest the proceedings
because she was not having the means to approach the Foreign Court50
and therefore she did not voluntarily waive up her right.
¶56. It is humbly submitted that it is the duty of the husband to provide
remuneration of the legal expenses to the wife.51 However, in the
present fact scenario, there was no legal remuneration paid by the
husband so that the wife could have attended the proceedings.
44 Satya v. Teja Singh, (1975) 1 SCC 120 (India).

45 Jitendra Arora v. Sukriti Arora, (2017) 3 SCC 726 (India).
47 Surya v. Adanan v. State of Tamil Nadu, (2015) 5 SCC 450 (India).
48 Nithya Anand Raghwan v. The state of NCT and Delhi, (2017) 8 SCC 454 (India).
49 Clarification.
50 Moot Proposition.
51 Neeraja Saraph v. Jayant V Saraph, (1994) 6 SCC 461(India).

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¶57. Therefore, it is honourably submitted that the ex-parte decision is not

valid in the eyes of law.
III.IV That the wife was not having legal aid and no proper means to
approach the Foreign Court.
¶58. It is humbly submitted that the wife did not contest the jurisdiction in
the previous matter in Foreign Court because of a lack of legal aid.52
The principle of audi alterm partem essentially means that no one
should be left unheard. Every party should get the proper opportunity
to be heard.53
¶59. In the present fact scenario, the Petitioner could not have contested
because of the lack of legal aid. The Petitioner was subsequently not
provided equal opportunity by the Foreign Court to be heard. Therefore,
in the interest of the principles of natural justice, it should be held that
the Petitioner did not submit to the jurisdiction of the Court.
IV. THAT THE PRINCIPLE OF RES-JUDICATA UNDER SECTION 13 OF THE CODE OF
CIVIL PROCEDURE, 1908 IS NOT APPLICABLE TO THE PROCEEDINGS BEING
INITIATED IN DISTRICT COURT, JALANDHAR.

¶60. It is humbly submitted that the question in the present fact scenario
that needs to be asked at the very first instance is how good is a decree
of divorce granted by a Foreign Court with regard to a Hindu couple
married in India?54 The foremost answer that would surface with us
would be that, the Hindu couple residing/working in a foreign land
ought to be governed by the matrimonial laws in force at that place. As
a corollary, the decree of divorce granted by the Foreign Court should
be valid.55
¶61. However, the pride of the place is taken by § 1 of the HMA, 1955 which
reads thus: Short title and extent—
(1) This Act may be called the Hindu Marriage Act, 1955.
52 Moot Proposition.
53 Rohini Kumari v. Narendra Singh, (1972) SCC (Cri) 1 (India).
54 Mulla Dinesh Fardunji, Principles Of Hindu Law, 21 st edn.
55 Vikas Aggarwal v. Anubha, (2002) 4 SCC 468 (India).

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(2) It extends to the whole of India except the State of Jammu and
Kashmir, and applies also to Hindus domiciled in the territories to
which this Act extends who are outside the said territories.56
¶62. It is humbly submitted that for this reason that Hindus married as per
Hindu Rights in India, although settled abroad, are primarily required
by law to process divorce proceedings only as per the said Act i.e.
applying the HMA, 1955.57
¶63. There is no specific provision mentioned under HMA regarding the
validity of the foreign judgments, the Courts have referred to the
provisions of CPC to determine the validity.58
¶64. It is humbly submitted that the § 11 deals with res judicata that is
subject to the provisions of the act itself.59 § 13 specifically deals with
the res judicata in the foreign judgment that essentially overrides the
provisions of § 11.60 Therefore, to determine whether a foreign
judgement is barred or not is to be identified as per the principles led
down under § 13 of the Code of Civil Procedure.61
IV.I That the suit is not barred under sub section A of section 13 of
Code of Civil Procedure.
¶65. It is humbly submitted that § 13(a)62 deals with the issue that the
judgment of the Foreign Court should be of Court of competent
jurisdiction.
¶66. The provisions of § 13(a) under CPC with regards to divorce decree by
Foreign Courts were considered in detail by the SC of India, the Court
held that: Court of competent jurisdiction would be the one which the law
under which parties are married, recognises. Any other Court would be
Court without jurisdiction, unless both parties voluntarily and

57 Suman Kapur v. Sudhir Kapur, (2009) 1 SCC 422 (India).
58 Poonam Pradhan Saxena, Family Law I & II, Halsbury’s Law’s of India, Vol. 10, 26 & 28
LexisNexis Butterworth Publications.

59 Kusum, Family Law Lectures Family Law I, 2007, LexisNexis Butterworths.
60 SC on Children, Research Edited by Aparna Bhatt, Human Right law Net work.
61 Sarita Sharma v. Sushil Sharma, (2000) 3 SCC 14 (India).
62 Code of Civil Procedure, Section 13(a), Act no. 5 of 1908 (India).

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unconditionally subject themselves to the jurisdiction of that Court.63

¶67. It is humbly submitted that essentially there are two ingredients to
satisfy this exception. Firstly, that the Court should be competent,
secondly, that the parties should not have voluntarily and
unconditionally subject themselves to the jurisdiction of that Court.64
¶68. It is humbly submitted that as per § 19 of the Hindu Marriage Act deals
with the competent Court to deal with the issue of the Court of
competent jurisdiction. § 19 essentially mentions that:
“19 Court to which petition shall be presented. —Every petition under this
Act shall be presented to the District Court within the local limits of
whose ordinary original civil jurisdiction—
(i) the marriage was solemnised, or
(ii) the respondent, at the time of the presentation of the petition, resides,
or
(iii) the parties to the marriage last resided together, or
(iv) the petitioner is residing at the time of the presentation of the petition,
in a case where the respondent is, at that time, residing outside the
territories to which this Act extends, or has not been heard of as being
alive for a period of seven years or more by those persons who would
naturally have heard of him if he were alive.”65
¶69. A plain reading of this section shows that it gives a choice either to the
husband or to the wife to institute proceedings at three places, namely,
where the marriage was solemnised. or where the husband and the wife
both reside at the time of the presentation of the petition or where both
¶70. It was held by the SC that “I am of the view that on reading § 19 and 21
of the HMA and § 4 & 20 CPC, the Court will be justified in holding that
the provisions of the CPC are also applicable and the Court within
whose jurisdiction the Respondent is residing will have jurisdiction”.66
¶71. It is humbly submitted that the exceptions that SC has permitted to the
above rule laid by it are as follows in a case where husband has filed for
64 Seema v. Ashwani Kumar, (2008) 1 SCC 180 (India).
66 M. Gomathi vs. S. Natarajan AIR 1973 Madras 247 (India).

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divorce in a foreign land: A) The wife must be domiciled and

permanently resident of that foreign land AND the Foreign Court should
decide the case based on HMA. B) The wife voluntarily and effectively
attends the Court proceedings and contests the claim on grounds of
divorce as permitted under HMA. C) The wife consents to grant of
divorce.67
¶72. In a recent case,68 husband and wife tied the knot in Vellore district in
1999, the husband went to the USA within a year and did not
communicate with wife after that. In 2000, she received a summons
from Superior Court of California, which subsequently granted divorce
despite the wife’s defense statement. The Madras HC held that the
Superior Court of California was not a Court of competent jurisdiction
to decide the matrimonial dispute in this case.
¶73. It is honorably submitted that as per the literal interpretation, the
Foreign Court does not have jurisdiction under any sub section in the
present fact scenario as the marriage was solemnized in India, the
parties last resided together in Canada and the wife never came to New
York. This raises an important concern regarding the validity of the
competence of the Court to deal with the issue of the divorce decree.
The Court of New York does not have the jurisdiction under any of the
provisions mentioned under the HMA.
¶74. It is humbly submitted that for contesting the issue in any Foreign
Court, it is an essential ingredient that the party should be domiciled of
that country. The primary reason behind this is that the decree could
be executed against the party.69
¶75. It is honorably submitted that the Petitioner never went to the United
States of America and therefore she cannot be considered as the
domicile of that country and therefore, the suit for divorce decree can
only be filled either in India or in Canada. The jurisdiction assumed by
the Court of New York is ultra vires to the provisions of the HMA under
67 Sanskaran Govindan v. Lakshmi Bharti and Ors., (1975) 3 SCC 351 (India).
68 Suman Kapur v. Sudhir Kapur, (2009) 1 SCC 422 (India).
69 Santhini v. Vijaya Venkatesh, (2018) 1 SCC 1 (India).

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whom both the parties are governed.

¶76. Therefore, it is honorably submitted that the Trial Court of New York is
not competent to deal with the issue of divorce between both the
parties. Therefore, it is submitted that the suit is not barred under §
13(a) of the Code of Civil Procedure.
IV.II That the suit is not barred under sub section B of section 13 of
¶77. It is humbly submitted that § 13(b)70 deals with the issue that the
judgment of the Foreign Court should be pronounced on the merits of
the case.
¶78. It is humbly submitted that the provisions of § 13 under CPC
with regards to divorce decree by Foreign Courts were considered in
detail by the SC of India, the Court ruled that:
(b) It was held that the decision must be given on the “merits” of the
case i.e.:
(i) The ground of divorce in the decision of the Foreign Court should be
a ground available under the HMA, 1955. For instance, if the ground of
the foreign decree was cruelty on the applicant, this would be
acceptable, as “cruelty” is a stated ground under the HMA, 1955. But
the same cannot be said for “irretrievable breakdown of marriage”, as
this is not a ground under the HMA, 1955.
(ii) The decision should be a result of the contest between the parties.
The non-applicant should have unconditionally submitted to the
jurisdiction of the Foreign Court and contested the claim or agreed to
the passing of the decree. The concept of acquiescence to jurisdiction
would not suffice.71
¶79. It is humbly submitted that the Irretrievable breakdown of a 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
70 Code of Civil Procedure, Section 13(b), Act no. 5 of 1908 (India).


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wife for mutual comfort and support.72 It is the situation that occurs in
a marriage when one or both spouse refuses to live with the other and
will not work towards reconciliation.73 When there is not an iota of hope
that parties can be reconciled to continue their matrimonial life, the
marriage can be considered as irretrievably broken down of marriage.74
That the irretrievably broken down is not a ground of divorce under the
Hindu Marriage Act
¶80. It is humbly submitted that the SC emphasized that when legislative

provisions specify the grounds on which divorce may be granted, they
constitute the only conditions on which the Court has jurisdiction to
grant the divorce. If grounds need to be added to those already
specifically set forth in the legislation that is the business of the
legislature and not of the Courts.75
¶81. It is humbly submitted that it was held by the Calcutta HC that the
Court cannot grant any decree of divorce on the ground that the
marriage is irretrievably broken down, as it has not yet been made a
ground for divorce.76
¶82. It is humbly submitted that the Hon'ble SC considered the earlier
decision of the Hon'ble SC and found that the Courts are not expected
to dissolve the marriage on the ground of irretrievable breakdown for
granting a divorce as that is not a ground under the HMA. It is also
observed by the Hon'ble SC in that case that the previous Judgment of
Hon'ble SC to grant the divorce on the ground of irretrievable
breakdown cannot be taken as a precedent as it is not supported by
any statutory provision, particularly, HMA, 1956. The relevant
Paragraph in the Judgment of Hon'ble SC is extracted as under:
In our opinion, those cases have not taken into consideration the legal
position which we have mentioned above, and hence they are not
72 Reynold Rajamoni v. Union of India, AIR 1982 SC 1261 (India).

73 Paras Diwan, Hindu law, 2nd edition, 2005, p.563.
74 Kusum, “Irretrievable Breakdown of Marriage: A Ground for Divorce”, 20 JILI (1978), p.
291.
75 N.G. Dastane v. S. Dastane, (1975) 2 SCC 326 (India).
76 Tapan Kumar Chakraborty v. Jyotsna Chakraborty, AIR 1997 Cal. 134 (India).

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precedents. A mere direction of the Court without considering the legal

position is not a precedent. If we grant the divorce on the ground of
irretrievable breakdown, then we shall by judicial verdict be adding a
clause to § 13 of the Act to the effect that irretrievable breakdown of the
marriage is also a ground for divorce. In our opinion, this can only be
done by the legislature and not by the Court. It is for the Parliament to
enact or amend the law and not for the Courts. Had both parties been
willing we could, of course, have granted a divorce by mutual consent as
contemplated by § 13-B of the Act, but in this case, the respondent is not
willing to agree to a divorce. 77
¶83. It is humbly submitted that the Hon'ble SC has held that the relief of
dissolution of marriage on the ground of irretrievable break down of
marriage cannot be granted since no such ground has been provided by
the legislature for granting the decree of divorce.78 Therefore, the decree
of the Trial Court on the ground of irretrievable break down of the
marriage is wholly unsustainable under law.79
¶84. It is honorably submitted that the Respondent in the Foreign Court has
passed the divorce decree on the ground of the irretrievable
breakdown.80 The irretrievable breakdown is not mentioned in § 13 of
the HMA and neither the Courts have explicitly recognize it.81
¶85. It is humbly submitted that the New York Court in the present fact
scenario has passed the judgment on the basis of the ground that
hasn’t been recognized in the law of the land and that nullifies the
judgment by the Foreign Court under § 13(b) of the Code of Civil
Procedure.82
¶86. Therefore, the irretrievable breakdown of the marriage cannot be taken
as a ground of divorce by the Foreign Court.
77 Vishu Dutt Sharma v. Manju sharma, AIR 2009 SC 2254 (India).

78 Neelam Kumar v.Dayarani, (2010) 13 SCC 298 (India).
79 Tapan Kumar Chakraborty v. Jyotsna Chakraborty, AIR 1997 Cal. 134 (India).
80 Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw and Anr., (1987) 1 SCC 42 (India).
81 Bhardwaj, P. (2019). Decree of Divorce Granted by a Foreign Court and its
Maintainability in India: A Critical Analysis | SCC Blog. [online] SCC Blog. Available at:
https://www.scconline.com/blog/post/2019/02/25/decree-of-divorce-granted-by-a-
foreign-court-and-its-maintainability-in-india-a-critical-analysis/ [Accessed 6 Sep. 2019].
82 Code of Civil Procedure, Section 13(b), Act no. 5 of 1908 (India).

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In Arguendo, the irretrievable breakdown principle cannot be applied in

the present fact scenario.
¶87. It is humbly submitted that the irretrievable breakdown of the marriage

is not a separate ground of divorce by itself.83 But while scrutinizing the
evidence on record to determine whether the grounds on which divorce
is sought are made out, the circumstances can be taken into
consideration. No divorce can be granted on the ground of irretrievable
breakdown of marriage if the party seeking divorce on this ground is
himself or herself at fault.84
¶88. It is humbly submitted that the power of the Court to grant the divorce
on the ground of irretrievable break down of marriage should be
exercised with much care and caution in exceptional circumstances
only in the interest of both the parties.85
¶89. It is humbly submitted that In the case of the no-fault theory of divorce,
it is not necessary to prove which party is at fault. There may be many
reasons based on which the sweetness of the matrimonial relationship
is at risk.86 If the parties prove with reliable evidence on record that
their marriage is beyond all possible repairs then the law should
understand the reality of the facts and should help the parties to the
marriage which has broken down irretrievably87. Commented [s14]: Mostly it is after the full stop.
¶90. It is honorably submitted that in the present fact scenario, the

Respondent has severed the contacts with the Petitioner. He has also
developed extramarital affairs with some other lady in the USA.88 By
inferring the facts, there is no fault from the side of the Petitioner,
however, the husband had done fault on his behalf and therefore, the
no-fault theory that has been applied by the Apex Court in the rarest of
the rare case cannot be applied in the present fact scenario.
83 Shankar Chakravarty v. Puspita Chakravarty I (2006) DMC 582 (Jhar.) (India).

84 Rishikesh Sharma v. Saroj Sharma I (2007) DMC 77 (SC).. Pradeep Kumar Nanda v.
Sanghamitra Binakar AIR 2007 Ori. 60. Gautam Chandra Nag v. Jyotsna Nag AIR 2007
NOC 674 Cal. (India).
85 Sanghamitra Ghosh v. Kajal Kumar Ghosh 2007 (1) HLR 464 (SC) (India).
86 Harinder Boparai, Reappraisal of Bars to Divorce: A comparative Study, 26 JILI (1984).
87 71st Law Commission Report.
88 Fact sheet.

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¶91. It is humbly submitted that the concept of irretrievable breakdown of a

marriage cannot be used as a magic formula to obtaining a decree for
divorce where grounds for divorce are not proved.89 In a case where the
husband utterly failed to prove his ground of cruelty and gave up the
ground of adultery, which was wholly unfounded, the Court held that
the husband is not entitled to a decree of divorce90 Commented [s15]: No full stop
¶92. It is humbly submitted that the SC has held, “While scrutinizing the
evidence on record to determine whether the ground(s) alleged is made
out and in determining the relief to be granted, the said circumstance
can certainly be borne in mind. Irretrievable breakdown of the marriage
is not a ground by itself but all of these facts are to be borne in mind if
it becomes necessary to take an unusual judicial step or decision to
clear up an insoluble mess when the Court may find it in the interest of
both the parties. 91 Commented [s16]: Remove space after the full stop
¶93. It is honorably submitted that the facts in the present case were not as
such where reconciliation cannot happen. Moreover, there was no
chance given for reconciliation. The principle of irretrievable breakdown
cannot be implemented in the present fact scenario.
¶94. It is humbly submitted that if a party to a marriage, by his own conduct
brings the relationship to a point of irretrievable breakdown, he/she
cannot be allowed to seek divorce on the ground of breakdown of the
marriage. That would simply mean giving someone the benefits of
his/her own misdeeds92. Commented [s17]: After full stop
¶95. It is honorably submitted that the husband has benefitted from his own
misdeed. Therefore, the Trial Court had committed an error while
implementing the principle in the present fact scenario.
¶96. It is humbly submitted that decree of divorce on the basis of the
irretrievable breakdown of the marriage cannot be invoked if the
89 Dilip Kumar Karmakar v. Biju Rani Karmakar II, (2004) DMC 522 (Cal.) (India).
90 Murarilal v. Saraswati 2003 (2) HLR 542 (Mad.): II (2003) DMC 59 (Mad.), Dilip Kumar
Karmakar v. Biju Rani Karmakar II (2004) DMC 522 (Cal.), Yashwant Kumar v. Kunta Bai
AIR 2007 Raj. 67 (India).
91 V. Bhagat v. D. Bhagat, AIR 1994 SC 710 (India).
92 Neelam kumar vs.dayarani(2010) 13 scc 298; Chetan Das v. Kamla Devi, AIR 2001 SC
1709; Piyush Ghosh v. Somnath Ghosh AIR 2009 Cal 9 (India).

lOMoARcPSD|14803112
spouses are not ad idem as regards such a situation, and there is a

genuine desire by one spouse to continue the marriage.93 It is the
extreme circumstances that this ground can be restored to. When the
fact shows that the spouse claiming divorce was, in fact, responsible for
the state of affairs, this ground could not be invoked, more particularly
when the other spouse was willing to reside together.94
¶97. Therefore, it is submitted that the principle of irretrievable breakdown
has not been applied in the present fact scenario correctly.
That the suit was in result of the ex-parte contest.
¶98. It is humbly submitted that the second principle mentioned by the SC

should not be ex-parte. There must be a contest between the parties
in the Foreign Court.95 It is honorably submitted above that the
decision of the Foreign Court was in result of the ex-parte decision
and does not cover under the exception laid down by the Apex Court.
¶99. Therefore, it is submitted that the foreign judgment is not barred
under § 13(b) of the Code of Civil Procedure.
IV.III That the Suit is not barred under sub section C of section 13 of
¶100. It is humbly submitted that § 13(c)96 deals with the issue that the
judgment of the Foreign Court should be pronounced on the
recognition of the law of India.
¶101. The provisions of § 13 under CPC with regards to divorce decree by
foreign Courts were considered in detail by the SC of India and the
Court ruled that:
(c) Refusal to recognise the law of India, is covered by saying that the
ground for divorce in the foreign decree is a ground available under
the HMA, 1955.97
93 Kakali Das v. Ashish Das, AIR 2003 Cal 287 (India).

94 Shyam Sundar Kohli v. Susma Kohli, AIR 2004 SC 5111 ; Ajay Desai v. Rajshree, AIR
2005 Bom 278; Sima Palet v. Pradip Kumar AIR 2005 Gau 140; Yashwant Kumar v. Kunta
Bai, AIR 2007 Raj 67; P. Malleswar Amma v. Pratap Reddy, AIR 2004 AP 4 (India).
95 Saroj Rani v. Sudarshan Kumar Chaddha, (1984) 4 SCC 90 (India).
96 Code of Civil Procedure, Section 13(c), Act no. 5 of 1908 (India).

lOMoARcPSD|14803112
¶102. It is humbly submitted that Both the parties must apply to the Court
not earlier than six months of the presentation of the petition and not
later than 18 months after that date that the petition may be heard
and decree dissolving the marriage may be granted.98 Petition for the
dissolution of the marriage by a decree of divorce on the ground
should mention that there has been no restitution of conjugal rights
as between the parties to the marriage for a period of [one year] or
upwards after the passing of a decree for restitution of conjugal rights
in a proceeding to which they were parties.99
¶103. It is submitted that it is an ingredient that the one party has deserted
the petitioner for a continuous period of not less than two years
immediately preceding the presentation of the petition; 100 another
ingredient is that there has been no resumption of cohabitation as
between the parties to the marriage for a period of [one year] or
upwards after the passing of a decree for judicial separation in a
proceeding to which they were parties.101
¶104. It is honorably submitted that in the present factual scenario, the
procedure mentioned above as per the HMA was not implemented.
Moreover, the intention of Hindu Marriage law is that the marriage
should not be broken as far as possible and there should be all
possible attempts to save the marriage through reconciliation. 102
¶105. Therefore, it is submitted that the foreign judgment is not barred
under § 13(c) of the Code of Civil Procedure.
IV.IV That the Suit is not barred under sub section D of section 13 of
¶106. It is humbly submitted that § 13(d)103 deals with the issue that the
judgment of the Foreign Court should not be against the principles of
natural justice
98 Ashok Hurra and Ors. v. Rupa Bipin Zaveri & Ors., (1997) 4 SCC 226 (India).
99 Lila Gupta v. Laxmi Narayan and Ors, 1978 Supp(3) SCC 258 (India).
100 Ruchi Majoo v. Sanjeev Majoo, , (2011) 2SCC (Cri) 1033 (India).
101 Pankaj Mahajan v. Dimple, (2011) 12 SCC 1 (India).
102 Vishu Dutt Sharma v. Manju sharma AIR 2009 SC 2254 (India).
103 Code of Civil Procedure, Section 13(d), Act no. 5 of 1908 (India).

lOMoARcPSD|14803112
¶107. The provisions of § 13 under CPC with regards to divorce decree by

Foreign Courts were considered in detail by the SC of India and the
Court ruled that: (d) the foreign judgment was obtained as opposed to
natural justice. The concept of natural justice is the provision of fair
hearing; absence of bias of Judge and following the elementary
principles of fair play. This is a larger concept but shortly can be
stated as essential trappings in order to have a fair adjudication.
Where for instance respondent was denied documents filed by the
other side or where the respondent was denied the opportunity to
cross-examine witnesses of the other side, without a justifiable cause,
these would be opposed to the principles of natural justice. 104
¶108. It is humbly submitted that the other view was taken by the Courts,
which is known as the concept of “comity of Courts”. This means that
Courts in various countries grant probity to decrees of foreign Courts.
The understanding being, the Courts all over the world adjudicate the
rights of the parties and therefore, show mutual respect. This
principle was first laid by the Court of England and subsequently
approved by the SC of India. The Court recorded the observation that
9. … it is the duty of all Courts in all countries to do all they can to
ensure that the wrongdoer does not gain an advantage by his
wrongdoing. 105
¶109. It is humbly submitted that it has been clearly mentioned in the
principles of natural justice that no party can approach the Court
with unclean hands.106 Essentially, the idea behind this principle in
the matrimonial case is that if the difference has been arising in the
marriage because of the act of the one party, the same party cannot go
to Court and ask for the relief.107
¶110. It is honorably submitted that the Petitioner has not committed any
fault so far. The Petitioner had even tried to contact the Respondent
when he was in the USA. In the present factual scenario, after going to
105 Elizabeth Dinshaw v. Arvand M. Dinshaw (1987) 1 SCC 42 (India).
106 Ghaziabad Development Authority and Ors. v. Machhla Devi, AIR 2018 SC 5755 (India).
107 Paikas Khaka v. State of Bihar and Ors., 2003(1) BLJR 524 (India).

lOMoARcPSD|14803112
the USA, the husband had severed all the contacts with the wife.
Moreover, he developed an extramarital affair in the USA. Therefore,
all the developments in the marriage between husband and wife are in
the result of the husband.
¶111. It is honorably submitted that because the developments in the
marriage between Sunita and Mohan had arisen because of the acts of
Mohan, he himself cannot approach the Court seeking for the
principle. His seeking relief for the divorce would go against the
principle of natural justice.
¶112. Therefore, it is submitted that the foreign judgment is barred under §
13(d) of the Code of Civil Procedure.
II.V That the Suit is barred under sub section F of section 13 of Code of
Civil Procedure.
¶113. It is humbly submitted that § 13(f)108 deals with the issue that the
judgment of the Foreign Court should not be sustained on a claim
founded against the Indian law. As established above, the procedure
mentioned under the HMA under which parties are given as well as
the divorce being given on the ground not mentioned under the HMA,
the judgment would be said to be founded against the Indian Law.
¶114. Therefore, it is submitted that the foreign judgment is barred under §
13(f) of the Code of Civil Procedure.
V. THAT THE FOREIGN DECREE IS NOT VALID UNDER SECTION 41 OF THE INDIAN
EVIDENCE ACT.
¶115. § 41109 of the Indian Evidence Act mentions that:
a. That the judgment in probate, matrimonial, insolvency, and
admiralty jurisdiction to be relevant in cases where the existence of
status of a thing or person conferred or taken away by such
judgment is relevant.
b. That the judgments are conclusive proof of the fact that the status
of the thing or of the person was conferred or taken away from the
108 Code of Civil Procedure, Section 13(f), Act no. 5 of 1908 (India).

lOMoARcPSD|14803112
date of the coming into force of the judgment.

¶116. It is submitted that the Courts exercising matrimonial jurisdiction
may grant the remedy of divorce. A marriage may be declared as null
and void on the ground, for instance, that the spouse already had a
husband or wife living, as the case may be, or that the marriage was
within prohibited degrees of relationship.110 A decree of nullity and
decree of divorce affects the legal character of the parties and is a
decree in rem.111
¶117. It is humbly submitted that while a decree of divorce operates in rem
in snapping the matrimonial bond, it does not operate so as to prove,
conclusively or even prima facie the facts on which the decree is
based.112
¶118. It is humbly submitted that the finality of the judgment depends on its
intrinsic nature and whether an appeal has been done or not.113 Thus,
a judgment can become final at any stage of judicial hierarchy
depending on whether an appeal has been provided for and if it is
whether an appeal has actually been preferred or not.114
¶119. It is honorably submitted that both of the ingredients do not apply in
the present case. It has already been submitted that the judgment is
pronounced by not a competent Court, therefore, the judgment will
not be final under the provisions of § 41.
110 Manoj Kumar and Ors. v. State of Haryana and Ors, (2018) 13 SCC 96 (India).
111 Chand Dhawan v. Jawaharlal Dhawan, (1993) 3 SCC 406 (India).
112 Satrucharla Vijaya Rama Raju v. Nimmaka Jaya Raju and Ors., (2006) 1 SCC 212.
113 Manoj Kumar and Ors. v. State of Haryana and Ors, (2018) 13 SCC 96 (India).
114 Mahboob Sahab v. Syed Ismail and Ors. (1995) 3 SCC 693.

lOMoARcPSD|14803112
PRAYER
WHEREFORE, in the light of the issues raised, arguments advanced and

authorities cited, it is humbly requested that this Hon’ble Court may be
pleased to adjudge and declare that:
1. This honorable Court has the jurisdiction of the issue and the petition is
filed within the limitation period.
2. The marriage of Sunita and Mahesh is valid as per the provisions of The
Hindu Marriage Act, 1955.
3. The non-contestation by the wife of a divorce petition filed by the

husband in a Foreign Court did not imply that she had conceded to the
jurisdiction of the Foreign Court.
4. The principle of Res-Judicata under Section 11, Section 13 of Code of

Civil Procedure, 1908 is not applicable to the proceedings being initiated
in District Court, Jalandhar.
5. The judgment of the foreign Court is not final and conclusive under
section 41 of The Indian evidence act.
And pass any other order or direction that this Hon’ble Court may deem fit
and proper in the interest of justice, equity, and good conscience.
For this act of kindness, the petitioner shall duty-bound forever pray.
---------------------------------------------------------
---------------------------------------------------------
Respectfully submitted on behalf of the Petitioner.
PRAYER PAGE | xiii

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Moot Court Memorial

Bachelor of Business Administration & Bachelor of Legislative Law (Chandigarh

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DR. N.N. JAIN NATIONAL MOOT COURT COMPETITION, 2019

DR. N.N. JAIN NATIONAL MOOT COURT COMPETITION, 2019

BEFORE THE HON’BLE DISTRICT COURT, JALANDHAR

IN THE MATTER OF:

SUNITA ..... PETITIONER

Petition No._____ of 2013

WRITTEN SUBMISSIONS ON BEHALF OF PETITIONER

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MEMORANDUM for PETITIONER

Table of Contents .................................................................................................................. i

List of Abbreviations ............................................................................................................... iii

Index of Authorities .................................................................................................................. iv

Statement of Jurisdiction........................................................................................................ viii

Statement of Facts .............................................................................................................. ix

Statement of Issues ................................................................................................................... xi

Summary of Arguments ...................................................................................................xii

Arguments Advanced .......................................................................................................... 1

TABLE OF CONTENTS PAGE | i

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MEMORANDUM for PETITIONER

Commented [s1]: Font style is times new Roman here

TABLE OF CONTENTS PAGE | ii

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MEMORANDUM for PETITIONER

HMA Hindu Marriage Act

CPC Code of Civil Procedure

AIR All India Report

SCC Supreme Court Cases

LIST OF ABBREVIATIONS PAGE | iii

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MEMORANDUM for PETITIONER

Ajay Desai v. Rajshree 18

INDEX OF AUTHORITIES PAGE | iv

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MEMORANDUM for PETITIONER

Neeraja Saraph v. Jayant V Saraph 10

INDEX OF AUTHORITIES PAGE | v

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MEMORANDUM for PETITIONER

Tapan Kumar Chakraborty v. Jyotsna Chakraborty 15

STATUTES Commented [s2]: In Neelam v Daryani, do baar cited hai aisa

INDEX OF AUTHORITIES PAGE | vi

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MEMORANDUM for PETITIONER

71st Law Commission Report. 17

Anand Karaj and the Lavan 5

Family Law I & II, Poonam Pradhan Saxena, Halsbury’s Law’s 11

INDEX OF AUTHORITIES PAGE | vii

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MEMORANDUM for PETITIONER

Section 9: Restitution of conjugal rights.:

STATEMENT OF JURISDICTION PAGE | viii

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MEMORANDUM for PETITIONER

Time period Facts