Roll No: 320C0525

Name: JEBA ROSLIN

GOVERNMENT LAW COLLEGE,

TIRUCHIRAPALLI

IN THE DISTRICT COURT OF JALANDHAR

IN THE MATTER OF:

SUNITA.............................................................PETITIONER

Verses

MAHESH...........................................................RESPONDENT

SUBMISSION ON BEHALF OF RESPONDENT

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 Table of Contents

CONTENTS ………………………………………………2

LIST OF ABBREVIATIONS....................................................3

INDEX OF AUTHORITIES ...........................................................4

CASES REFERRED..................................................................5

STATEMENT OF JURISDICTION...........................................6

STATEMENT OF FACTS..........................................................7

ISSUES OF THE CASE..............................................................9

SUMMARY OF ARGUMENTS............................. 10

ARGUMENTS ADVANCED...................................... 11

PRAYER.................................................................................... 22

2
LIST OF ABBRIVIATIONS

CPC - Civil Procedure Code

HMA - Hindu Marriage Act

S - Sec

SCC - Supreme Court Cases

SC - Supreme Court

CO - Company

LTD - Limited

ORS - Others

& - And

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INDEX OF AUTHORITIES

LEGISLATIONS CITED:

THE HINDU MARRIAGE ACT, 1955

THE CODE OF CIVIL PROCEDURE,1909

LEGAL DATA: -

Manupatra
Indiankanoon.org
Legalservicesindia.com
Barandbench.com

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CASES REFERRED

 Mousumi Chakraborty ν. Subrata Guha Roy 95 CWN 380, II

(l99l) DMC 74

 Man Mohan Vaid νs Meena Kumari l07 (2003) DLT l95, II

(2003) DMC 723

 Harmeeta Singh v. Rajat Taneja 2003 IIAD Delhi 14, 102 (2003)
DLT 822, I(2003) DMC 443,2003 (δ7) DRJ 58

 Yashitha Sahu ν. State of Rajasthan & ors AIR2020SC577

 Lalji Raja & Sons ν. Firm Hansraj Nathuram l97l AIR 974,
l97l SCR (3) 8l5

 Munish kakkar ν. Nidhi kakkar SCOR 27097 20l9

 Marine Geotechnics LLC ν/s Coastal Marine Construction

& Engineering Ltd 20l4(2)BomCR769

 Raj Rajendra Sardar Maloji Marsingh Rao Shitole vs Sri Shankar

Saran and Ors 1962 AIR 1737 1963 SCR (2) 577

 Padmini Mishra ν. Ramesh Chandra Mishra, AIR l99l Ori.

263

 International Woollen Mills v. Standard Wool (UK) Ltd AIR

2000 P H l82,(2000) l24 PLR 54l

 Ganjan Sheshadri Pandharpuka ν. Shanta bai (l939) 4l

BOMLR 8l8

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STATEMENT OF JURISDICTION

The present petition is not maintainable in the hon'ble court as it

is barred by S.11 r/ w S.151 of CPC.

S.11- No Court shall try any suit or issue in which the matter
directly and substantially in issue has been directly and
substantially in issue in a former suit between the same parties,
(or) between parties under whom they or any of them claim,
litigating under the same title, in a Court competent to try such
subsequent suit or the suit in which such issue has been
subsequently raised, and has been heard and finally decided by
such Court.

S.151- Nothing in this Code shall be deemed to limit or otherwise

affect the inherent power of the Court to make such orders as may
be necessary for the ends of justice or to prevent abuse of the
process of the Court.

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STATEMENT OF FACTS

Sunita and Mahesh (a Major in Indian Army), both resident of

Jalandhar, belonging to Ravidasia community of Punjab, who are
Hindus by religion, got married in 2007 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. Out of this wedlock two children were born in
the year 2008 and 2011 respectively. In 2008, after taking
retirement from Indian Army, Mahesh went to England for higher
studies and stayed there for two years. Then in April 2010, he
moved to Canada and called his wife to join him there along with
their first child. In January 2011, their second child was born in
Canada. In February 2011, he went to New York.

Thereafter he asked Sunita to go back to India. In 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 had developed an extra marital affair with a lady named
Elizabeth Prescott. In 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.

In April 2012, he filed a petition for divorce in Trial Court of New

York on the ground that his marriage has irretrievably broken

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down. Sunita could not contest these proceedings, she having no
means to go to New York.

Meanwhile in July 2012, the trial court of New York granted a

divorce decree in favour 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 (on the basis of adultery, cruelty
and desertion) 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. In 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 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 of notice, Sunita did not contest the
same and by not raising any objection she is deemed to have
accepted the jurisdiction of the Foreign Court in trying the petition
and thus making the decree nisi-absolute by the Foreign Court and
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 is thus stopped from filing the present petition (Under Section 11
read with Section 151 of Civil Procedure code, 1908). The case is
pending for adjudication in District Court, Jalandhar.

ISSUES OF THE CASE

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 the 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 the Civil Procedure Code, 1908 is applicable to the
proceedings being initiated in District Court,
Jalandhar?

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SUMMARY OF ARGUMENTS

1. Whether the marriage of Sunita and Mahesh is valid

as per the provisions of The Hindu Marriage Act,
1955?

It is humbly submitted before this hon'ble court that the marriage

of Sunita and Mahesh is valid as it satisfies the conditions of valid
marriage stated in the Hindu Marriage Act, 1955

2. Whether non-contest by the wife of divorce petition

filed by the husband in a Foreign Court imply that she
had conceded to the jurisdiction of the Foreign Court?

It is humbly submitted before this hon'ble court that the non-

contest of divorce petition by the wife filed by the husband in the
foreign court imply that she conceded to the jurisdiction of the
foreign court by remaining silent voluntarily after receiving the
notice of proceedings and the decree of divorce but responding
and seeking legal aid after failure to receive the maintenance
which she should have approached at the time of proceedings for
divorce went on.

3. Whether the principle of Res-Judicata under Section

11 of the Civil Procedure Code, 1908 is applicable to

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the proceedings being initiated in District Court,
Jalandhar?

It is humbly submitted before this hon'ble court that as per the

concept of comity of courts and sec 13 and 14 of CPC , the foreign
judgement is in accordance with in the provisions of CPC, hence
the foreign decree of divorce acts as res judicata to the petition
filed by the plaintiff.

ARGUMENTS ADVANCED

4. Whether the marriage of Sunita and Mahesh is valid

as per the provisions of The Hindu Marriage Act, 1955?

Mahesh and Sunita belong to Raviadassia community of Punjab

and are Hindus by religion. They got married in Anand Karaj
form of marriage, which is the marriage ceremony of Sikhs.
Though there is the Anand Marriage Act (for Sikhs) initiated
during the British era of 1909, had not been implemented till
2012. Until then the marriages happened in the form of Anand
karaj were registered under HMA,1955. Hence, the marriages
done under this form were being registered under Hindu
Marriage Act, 1955.

Sec 2(a) of HMA, 1955 states that- to any person who is a Hindu
by religion in any of its forms or developments, including a
Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or
Arya Samaj. This section speaks about religion but not about
communities under those religions. So it is implied that it
includes all the communities under the religions mentioned in
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sec 2 of HMA. Here both Sunita and Mahesh are Hindus by
religion, so the marriage registered and Hindu marriage
Act,1955 is valid. And they have fulfilled conditions of Hindu
marriage Act, 1955 which are laid down Under Sec-5 of the Act
which are as follows

A marriage may be solemnized between any two Hindus, if the

following conditions are fulfilled, namely:—
(i) neither party has a spouse living at the time of the marriage;

(ii)at the time of the marriage, neither

party-

(a) is incapable of giving a valid consent to it in consequence of

unsoundness of mind; (or)
(b) though capable of giving a valid consent, has been suffering
from mental disorder of such a kind or to such an extent as to
be unfit for marriage and the procreation of children; (or)
(c) has been subject to recurrent attacks of insanity
the bridegroom has completed the age of 21 and the bride, the
age of 18at the time of the marriage;
I. the parties are not within the degrees of prohibited
relationship unless the custom or usage governing each of
them permits of a marriage between the two;

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II. the parties are not sapindas of each other, unless the
custom or usage governing each of them permits of a
marriage between the two;

In the case Mousumi Chakraborty v. Subrata Guha Roy,

division bench of Calcutta high court observed that the
registration is not the sole proof of marriage in order to become
a valid marriage. Section 7 of the said Act provides that the
validity of a marriage will depend on observance of "customary
rites and ceremonies". The expression "customary rites and
ceremonies" means such Shastric ceremonies, which the caste
or community to which party belongs is customarily following.
Customary rites and ceremonies to be accepted must behown to
have been followed definitely as an essence of marriage
ceremony from ancient times and recognised such ceremonies
as obligatory. Since Anand Karaj form of marriage is a
customary ceremony recognized and performed by Sikhs it is
valid under S.7 of HMA,1955, by virtue of this the marriage
between Mahesh and valid even as per sec.7 of the HMA. It
was in the case of Man Mohan Vaid vs Meena Kumari ,Delhi
High Court stated that if marriage marriage is solemnized
according to rules of the Committee that marriage ceremony
would be valid marriage. As regards the alleged non-
performance of saptpadi, firstly it shall be presumed in the
circumstances in the shape of lavan feras and secondly non-
performance by itself would not be sufficient to declare
marriage invalid/void or voidable.

Hence even in the absence of Saptapadi if the marriage ritual is

recognized by the Gurudwara Committe it is a valid marriage.

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Hence the marriage is valid according to Hindu Marriage
Act,1955.

5. Whether non-contest by the wife of divorce petition

filed by the husband in a Foreign Court imply that she
had conceded to the jurisdiction of the Foreign Court?

Eligibility to file a Divorce Petition

One can file a divorce petition in New York if either of the

spouse is resident of New York. Conditions to become resident
is either you have domicile in New York or if your domicile is
not New York State but you maintain a permanent place of
abode in New York State for more than 11 months of the year
and spend 184 days or more (any part of a day is a day for this
purpose) in New York State during the tax year. Here
Mr.Mahesh has been living in New York since Feb 2011 and the
suit instituted in April which count for more than 365 days or a
year which gives him right to file a divorce petition.
The plaintiff despite of notice given by the foreign court, did
not contest the same and by not raising any objection she is
deemed to have accepted the jurisdiction of the Foreign Court
in trying the petition and thus making the decree nisi-absolute
by the Foreign Court. A decree becomes nisi absolute after six
weeks from day one of the Decree Nisi is pronounced. The
petitioner was having 6 weeks to raise objection on the decree
passed, but she remained silent. If we consider that she didn't
conceded to jurisdiction of foreign court, she didn't even file the
petition in the Indian court rather she asked for the legal aid
which in turn lead to issuance of arrest warrant against the
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respondent and after failing to receive the amount of
maintenance she choose to file the petition for restitution of
conjugal rights with a mala fide intention to create hurdles in
the life of respondent. The petitioner has falsely raising that the
principles of natural justice were violated but in real all the
principle of natural justice are met, she was given notice while
initiating the proceedings and had time to raise objection before
decree becoming nisi absolute.

A similar situation arose before the Delhi High Court in

Harmeeta Singh v. Rajat Taneja. Here the husband had filed
proceedings in the foreign court.

Wife has approached the Delhi High Court by way of a civil

suit. High Court restrained the husband for continuing with the
proceedings in the foreign court, as the wife had no spouse visa,
she possibly could not defend the proceeding in the foreign
court. Of course, there was no occasion for the wife to submit
to jurisdiction of the foreign court. In this case wife
approached the court in India after getting to know about the
proceedings initiated in foreign court as she had no means to
contest them. But in the present case petitioner neither at the
time of proceedings initiated nor before the decree becoming
nisi absolute approached the court.
The subject of participating in the proceedings fall into two
categories,
1) Did not attend and not actively participated ,
2)Attend and actively participate.

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When the non-applicant consents to the passing of the decree of
divorce it is another form “attend and actively participate”.
Here the wife consented to the decree by reporting the failure of
maintenance to the foreign court.
Hence the non-contest by the wife of divorce petition filed by
the husband in a foreign court imply that she had conceded to
the jurisdiction of the foreign court.

3)Whether the principle of Res-judicata under section 11 of the

civil procedure code, 1908 is applicable to the proceedings being
initiated in District court, Jalandhar?

Jurisdiction of New York Court:

The trial court of New York has jurisdiction to try the case if the
suit is instituted by the resident of New York State. The
respondent in the present case has been living in New York
from Feb 2011 and the suit in the court of New York was filed
in April 2012 which gives the jurisdiction power to the court on
the basis of he is a resident as he fulfilled the condition of 184
days stated in the provisions of Tax Law and he didn’t fall in
any exceptions of group A (or) group B and he satisfies the
concept of domicile.

Concept of comity of courts and foreign court:

In the recent case of Yashitha Sahu v. State of Rajasthan &

ors Supreme court of India recognized and supported the
concept of comity of courts by opining that it is of paramount
importance, the courts of one jurisdiction should respect the
16
orders of a court of competent jurisdiction even if it beyond its
territories. And previously to this case many judgements passed
by American courts were recognized under the concept of
comity of courts.
The concept of foreign court and foreign judgment are
recognized by CPC and defined under sec2(5) and 2(6) of the
Code respectively.

Principle of Natural Justice:

The foreign court justified the principles of natural justice by

serving a notice when the proceedings were initiated but the
plaintiff remained silent despite of utilising the chance of being
heard. And she didn’t raise the objection even in the tine span
of decree nisi becoming nisi absolute and even in the case of
maintenance when she asked for the legal aid the court heard
the request and proceeded with providing legal aid and initiated
proceedings and issued arrest warrant against the respondent in
the present case. Hence the principle of natural justice met by
the trial court of New York.

Ex-parte decree and its Validity:

The concept of Ex-parte decree is also recognized by CPC

under order 9 rule 6(1)(a) which states that Where the plaintiff
appears and the defendant does not appear when the suit is
called on for hearing, then—(a) When summons duly served.—
if it is proved that the summons were duly served, the Court
may make an order that the suit shall be heard ex parte and
order 9 rule 13 provides that no Court shall set aside a decree

17
passed ex parte merely on the ground that there has been an
irregularity in the service of summons, if it is satisfied that the
defendant had notice of the date of hearing and had sufficient
time to appear and answer the plaintiffs claim. The plaintiff in
this case has a time of 4 months from the initiation of
proceedings and the decree becoming nisi absolute but the
plaintiff remained silent the whole time , hence the ex parte
decree can't be set aside.

It was held in the case of Lalji Raja & Sons v. Firm Hansraj
Nathuram, 1 SCC 721, 725 (1971)-Ex-parte foreign orders are
enforceable in India, if shown that they have been decided upon
the merits of the case, mere fact that it is an ex-parte order
cannot conclude that it is not decided upon the merits of the
case.
Res judicata:

“In considering the essential elements of res judicata one

inevitably harks back to the judgment of Sir William De Grey
(afterwards Lord Walsingham) in the leading Duchess of
Kingston's case [2 Smith Lead. Cas. 13th Ed. pp. 644, 645].
Said William De Grey, (afterwards Lord Walsingham) “from
the variety of cases relative to judgments being given in
evidence in civil suits, these two deductions seem to follow as
generally true: First, that the judgment of a court of concurrent
jurisdiction, directly upon the point, is as a plea, a bar, or as
evidence, conclusive between the same parties, upon the same
matter, directly in question in another court; Secondly, that the
judgment of a court of exclusive jurisdiction, directly upon the
point, is in like manner conclusive upon the same matter,
18
between the same parties, coming incidentally in question in
another court for a different purpose”.

Section 11 of CPC deals with the Principle of Res judicata

which states that-

No Court shall try any suit or issue in which the matter directly
and substantially in issue has been directly and substantially in
issue in a former suit between the same parties, or between
parties under whom they or any of them claim, litigating under
the same title, in a Court competent to try such subsequent suit
or the suit in which such issue has been subsequently raised,
and has been heard and finally decided by such Court.

In the given case the marriage between the parties was the
matter directly in issue and has been decided by the court of
competent jurisdiction. By specially considering the
explanation VII in the given section it is applicable to the
execution petitions also.
Section 13 of CPC deals with whether the judgement passed by
a foreign court is conclusive are not by considering the points
which are stated as follows

A foreign judgment shall be conclusive as to any matter thereby

directly adjudicated upon between the same parties or between
parties under whom they or any of them claim litigating under
the same title except—

19
where it has not been pronounced by a Court of competent
jurisdication;

a) where it has not been given on the merits of the case;

b) where it appears on the face of the proceedings to be
founded on an incorrect view of international law or a
refusal to recognise the law of 2[India] in cases in which
such law is applicable;
c) where the proceedings in which the judgment was obtained
are opposed to natural justice;
d) where it has been obtained by fraud;
e) where it sustains a claim founded on a breach of any law in
force in.

The judgement given by the foreign court does not fall into any
of the exceptions stated above, hence the judgement of the
foreign court is conclusive.

Though the HMA, 1955 has not mentioned irretrievable break

down as ground of divorce under S.13, the Supreme Court of
India in the case of Munish kakkar ν. Nidhi kakkar granted
divorce on the ground of irretrievable breakdown of marriage
by utilizing the power of Article 142 of Indian Constitution. So
the ground of irretrievable break down of marriage is
recognized in India and is not against the law of India and does
not fall in the exception of Sec.13(3) of CPC.

In Marine Geotechnics LLC ν/s Coastal Marine Construction &

Engineering Ltd, the court referred to the judgement of Raj
20
Rajendra Sardar Maloji Marsingh Rao Shitole vs Sri
Shankar Saran and Ors. and stated that sec 13 of CPC is a
substantive law not a mere procedure and S. 13 makes no
distinction between judgments of a court in a reciprocating
territory and those of courts in non-reciprocating territories. It
also opined that an ex-parte decree is not necessarily one that is
always, and ipso facto, not on merits. If a court has considered
and weighed the plaintiffs' case and assessed his evidence, it
will be on merits, notwithstanding that it is ex-parte.

S. 14 of CPC stipulates that “Presumption as to foreign

judgments.-The Court shall presume upon the production of any
document purporting to be a certified copy of a foreign judgment,
that such judgment was pronounced by a Court of competent
jurisdiction, unless the contrary appears on the record; but such
presumption may be displaced by proving want of jurisdiction.”
The Orissa High Court in the case of Padmini Mishra ν. Ramesh
Chandra Mishra, held that when a party to a proceeding before a
court at New York did not take any plea about want of jurisdiction
of the court at New York and allowed the matter to proceed ex
parte, the presumption under S. 14 has to be made. Also
mentioned and also stated decree of divorce passed by a Foreign
Court- Grounds mentioned under Section 13 Clauses (a) to (f) not
satisfied — Neither was there any proof to bring the case within
the ambit of said clauses of Section 13 C.P.C. — Held, the decree
passed by the foreign Court will be binding on the parties — The
law contained in Sections 13 and 14 C.P.C. which is not merely
rules of procedure but rules of substantive law recognizing
conclusiveness of a foreign judgment — In such circumstances the
foreign decree will be binding on the parties.

21
The Supreme Court of India in International Woollen Mills v.
Standard Wool (UK) Ltd. view taken was when evidence was led
by the plaintiff applicant in the foreign court, even though the
opposite side may have been served but not appearing, the
decision would be “on merits”

In the case of Ganjan Sheshadri Pandharpuka ν. Shanta bai, it

was held that even if the decree is ex parte, it is on the merits of
the case it is valid.

S.47decree.—(l) All questions arising between the parties to the

suit in which the decree was passed, or their representatives, and
relating to the execution, discharge or satisfaction of the decree,
shall be determined by the Court executing the decree and not by a
separate suit.

Hence the judgement is conclusive and the principle of res

judicata is applicable to the present suit.

PRAYER

In light of the issues raised, arguments advanced, and authorities

cited, the counsel for respondent requests this Hon'ble Court to

1. Reject the petition filed by the plaintiff

22
And Pass any other Order, Direction, or Relief that it may deem fit
in the Best Interests of Justice, Fairness, Equity and Good
Conscience.

For This Act of Kindness, the respondent shall duty bound forever
pray.

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