Respondent memorial( on civil case of India), Papers of Mock Trial and Moot Court

Download Respondent memorial( on civil case of India) and more Papers Mock Trial and Moot Court in PDF only on Docsity! 2nd INTRA-COLLEGE MOOT COURT COMPETITION, 2023 Before THE HON’BLE HIGH COURT OF DELHI Civil Appeal No. ____/2023 WRITTEN SUBMISSION OF BEHALF OF THE APPELLANT COUNSEL APPEARING ON BEHALF OF THE APPELLANT MEMORIAL ON BEHALF OF THE APPELLANT TC07-P IN THE MATTER OF: DALJEET KAUR……………………………………………………………………APPELLANT VERSUS RAJESH SINGH………………………………………………………...…………RESPONDENT 2ND INTRA-COLLEGE MOOT COURT COMPETITION, 2023 MEMORIAL OF THE APPELLANT Page | 2 TABLE OF CONTENTS S.NO. CONTENT PAGE NO. 1) COVER PAGE 01 2) TABLE OF CONTENTS 02 3) TABLE OF ABBREVIATIONS 03 4) INDEX OF AUTHORITIES A. Acts and Legislation B. Books C. Law Dictionaries/ Lexicons D. Online Databases E. List of Case Laws 04 04 04 04 05 05 5) STATEMENT OF JURISDICTION 08 6) STATEMENT OF FACTS 09 7) ISSUES RAISED 11 8) SUMMARY OF ARGUMENTS 12 9) ARGUMENTS ADVANCED 1. Whether the application for condonation of delay is maintainable? 2. Whether the ex-parte decree should be set aside? 3. Whether there were valid grounds for granting the divorce to the respondent-husband? 4. Whether the marriage solemnized by the respondent-husband on 30th June, 2023 is valid? 14 14 22 28 36 10) PRAYER 38 2ND INTRA-COLLEGE MOOT COURT COMPETITION, 2023 MEMORIAL OF THE APPELLANT Page | 5 D. ONLINE DATABASE REFFERED S.NO DATABASE 1) Manupatra (www.manupatra.com) 2) Lexis Nexis (www.lexisnexisadvance.com) 3) SCC Online (www.scconline.com) 4) Hein Online (www.home.heinonline.org) 5) Indian Kanoon (www.indiankanoon.com) F. LIST OF CASE LAWS S.NO. NAME OF THE CASES WITH CITATION A. ISSUE 1 1) G. Ramegowda, Major, Etc vs Special Land Acquisition,1988 AIR 897, 1988 SCR (3) 198 2) Saket Kumar vs Nitu Kumari on 16 September, 2016 3) Catmos Export Processing Zone Employees Union v. M/s Sterlite Technologies Ltd (SLP (C) Nos. 6967-6969/2003) 4) Esha Bhattacharjee v. RGCISBIL & Others (2013) 12 SCCM 701) 5) Ajit Singh Thakur Singh and Ors. vs. State of Gujarat, AIR 1981 SC 733 6) Shakuntala Devi Jain vs. Kuntal Kumari and Ors, AIR 1969 SC 575 7) State of Haryana vs. Hindustan Machine Tools Limited, LPA NO. 377 of 2012 (O&M) 2ND INTRA-COLLEGE MOOT COURT COMPETITION, 2023 MEMORIAL OF THE APPELLANT Page | 6 8) State of M.P. And Aur vs Pradeep Kumar and Anr, (2000) 7 SCC 372 9) Municipal Corporation vs Voltas Limited and Etc, AIR 1995 Guj 29 10) N. Balakrishnan vs. M. Krishnamurthy, (1998) 7 SCC 123 11) Mrs. Zulaiha Syed Mohideen vs D. Visalakshi Ammal (Deceased), C.R.P. (NPD) No. 2768 of 2013 12) O.P. Kathpalia v. Lakhmir Singh (AIR 1984 SC 1744) 13) Ram Rattan vs Sunita Kumari Alias Pinki, Civil Revision No. 959 of 2004 (O&M) 14) Prem Parkash Gupta vs Asha Rani, (1991) 99 PLR 282 B. ISSUE 2 15) Chandu Lal Agarwala vs. Khalilur Rahaman AIR 1950 PC 17 16) Mohd. Iqbal v. K. Jagadeshwar Rao 1991 (1) ALT 58 17) Uma Nath Pandey V. State of UP, 2009 (237) ELT 241 (S.C.) 18) Sachin Arvindrao Mahajan vs Vrushali Sachin Mahajan on 10 July 2018 19) G.P. Srivastava vs Shri R.K. Raizad, Special Leave Petition (Civil) 17942-43 of 1990 20) Vijay Kumar vs Shanti Devi, Civil Appeal No. 2062 of 2009 C. ISSUE 3 21) Jayachandra v. Aneel Kaur, 22) V. Bhagat v. D. Bhagat, 1994 AIR 710, 1994 SCC (1) 337 23) Savitri Pandey vs Prem Chandra Pandey on 8 January 2002 24) Neelam Kalra vs Vinod Kalra,19 (1981) DLT 250, 1981 RLR 271 25) Bipin Chander Jaisinghbhai Shah vs Prabhavati, 1957 AIR 176, 1956 SCR 838 26) Smt. Shanti Devi vs Govind Singh, AIR 1983 Raj 211 2ND INTRA-COLLEGE MOOT COURT COMPETITION, 2023 MEMORIAL OF THE APPELLANT Page | 7 27) Meena Alias Mota vs Lachman Utamchand Kirpalani on 16 July, 1959 28) Smt. Rohini Kumar Vs. Narendra Singh (AIR 1972 SC 459) 29) Julmi Devi vs Ravi Kumar, (2006) DMC 210 30) Teerth Ram v. Smt Parvati Devi on July 12, 1994 31) Narayan Ganesh Dastane vs Sucheta Narayan Dastane, 1975 AIR 1534, 1975 SCR (3) 967 32) Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, p. 547, para 101(xiv)] 33) Kashinath Sahu vs Smt. Devi And Ors. on 25 February, 1971 34) Naveen Kohli vs Neelu Kohli on 21 March, 2006 35) Meera v. State, 2022 SCC Online SC 31 D. ISSUE 4 36) Priya Bala Ghosh vs Suresh Chandra Ghosh (AIR 1971 SC 1153) 37) Bhanwari Devi vs State of Rajasthan 38) Smt. Yamunabai Anantrao Adhav vs Ranantrao Shivram Adhav And Another (1988 AIR 644) 39) Smt. Sarla Mudgal vs Union of India (1995) AIR 1531, 1995 SCC (3) 635 40) Lila Gupta vs Laxmi Narain & Ors (1978) AIK 1351, 1978 SCR (3) 922 41) Sadashiv Ramrao Hadbe vs State of Maharashtra & Anr (2006) 108 BOMLR 315, (2006) 10 SCC 92 2ND INTRA-COLLEGE MOOT COURT COMPETITION, 2023 MEMORIAL OF THE APPELLANT Page | 10 The Couple had a baby girl in August 2020 but Rajesh’s mother was not pleased. She repeatedly denigrated the baby and Daljeet for which Rajesh also had several arguments with his mother. Daljeet, soon began experiencing frequent illnesses and depression because of being exhausted by the baby and receiving insults from her mother-in-law. She complained to her husband and asked to live separately with him and return to Mumbai. Rajesh started to criticize her for lack of household and management skills and he showed his discomfort to leave his widowed mother alone. She informed her parents everything and they demanded to leave her husband and come back along with their child. When she threatened to leave, Rajesh refused to move out with her. On November 14th, 2020, Daljeet left for her parents' house in Pune the following day. Rajesh tried to pursue her, but she insisted that she would only return if they lived separately from his mother, which Rajesh did not agree with. This discussion went on for several months, and afterward, Daljeet refused to answer the phone. FILING OF SUIT On November 15th, 2022, Rajesh filed for divorce in the Family Court of New Delhi, citing desertion and cruelty as grounds under section 13 of the Hindu Marriage Act. The summons was issued but returned marked as "refused to accept" by someone named Mr. Kulkarni. On 7th March 2023, the court granted Rajesh a divorce on the grounds of desertion and cruelty. The petition was heard ex-parte based on the evidence presented by him. A copy of the order was sent to Daljeet at the provided address. On June 30th, 2023, Rajesh married Miss Neeta, a Hindu woman. September 4th, 2023, Daljeet filed an application with the High Court of Delhi to request Condonation of Delay in filing an appeal against the Family Court of New Delhi's grant of an Ex-parte decree to Rajesh. Furthermore, Daljeet claimed that she never intended to desert Rajesh and accused him and his mother of cruelty towards her. The case is now listed for its first hearing on October 27, 2023, in the High Court of Delhi. 2ND INTRA-COLLEGE MOOT COURT COMPETITION, 2023 MEMORIAL OF THE APPELLANT Page | 11 ISSUES RAISED The following issues have been raised before the Hon’ble Court for its consideration: ISSUE 1: WHETHER THE APPLICATION FOR CONDONATION OF DELAY IS MAINTAINABLE? ISSUE 2: WHETHER THE EX-PARTE DECREE SHOULD BE SET ASIDE? ISSUE 3: WHETHER THERE WERE VALID GROUND FOR GRANTING THE DIVORCE TO THE RESPONDENT-HUSBAND? ISSUE 4: WHETHER THE MARRIAGE SOLEMNIZED BY THE RESPONDENT- HUSBAND ON 30TH JUNE, 2023 IS VALID? 2ND INTRA-COLLEGE MOOT COURT COMPETITION, 2023 MEMORIAL OF THE APPELLANT Page | 12 SUMMARY OF ARGUMENTS ISSUE 1: WHETHER THE APPLICATION FOR CONDONATION OF DELAY IS MAINTAINABLE? It is humbly submitted before the Hon'ble Court that the appeal is maintainable as even though the appeal has been filed after the expiry of the time limit but that was due to a sufficient cause. The appellant-wife’s inability to represent her side earlier was neither intentional nor deliberate but rather a genuine inability. ISSUE 2: WHETHER THE EX-PARTE DECREE SHOULD BE SET ASIDE? It is humbly submitted before the Hon'ble Court that the ex-parte decree should be set aside as the summons were not duly served to the Appellant and thus had no idea about the proceedings. There was sufficient cause for the non-appearance of the appellant and also in the delay in approaching for the remedy. ISSUE 3: WHETHER THERE WERE VALID GROUND FOR GRANTING THE DIVORCE TO THE RESPONDENT-HUSBAND? It is humbly submitted before the Hon'ble Court that the respondent and his mother-in-law caused mental cruelty to the Appellant which became the reason for leaving the matrimonial home. Therefore, the grounds of cruelty and desertion on which divorce was granted are not valid. 2ND INTRA-COLLEGE MOOT COURT COMPETITION, 2023 MEMORIAL OF THE APPELLANT Page | 15 upon the facts and circumstances of each case. In the case of G Ramegowda v. Special Land Acquisition Officer4, the expression ‘sufficient cause’ in Section 5 must receive a liberal construction so as to advance substantial justice, and generally, delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay, this Court said: “When substantial justice and technical considerations are A pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.” 6. In this present case, the Appellant submits that there were genuine and unavoidable reasons which led to the delay in filing an appeal against the ex-parte decree. The Appellant was unable to appear before the lower court on account of: [i] Illness: The Appellant suffered from postpartum depression. She gave birth to a baby girl in August 2020 and she soon began experiencing frequent illnesses and depression because of being exhausted by the baby. Postpartum depression is a serious and debilitating condition that, regrettably, is not always understood or adequately acknowledged. In this case, we intend that postpartum depression significantly affected the appellant's mental health and, in turn, her actions during the period in question. Acknowledgment of the Condition: postpartum depression is a recognized medical condition that can afflict women after giving birth. It is crucial to understand that this condition is not a matter of choice or a reflection of one’s character. It is a medical condition that can result in severe emotional distress, making it imperative to consider its implications on my client’s actions and decisions during the relevant period. Impact on Decision-Making: Postpartum depression can cloud one’s judgment, impair decision-making, and lead to a range of emotional and psychological symptoms. The appellant’s condition significantly influenced her actions and mindset during the time in question, affecting her ability to think clearly and make rational choices. This condition can create a sense of isolation and despair 4 G. Ramegowda, Major, Etc vs Special Land Acquisition,1988 AIR 897, 1988 SCR (3) 198 2ND INTRA-COLLEGE MOOT COURT COMPETITION, 2023 MEMORIAL OF THE APPELLANT Page | 16 that often results in actions that a person would not typically engage in. This condition rendered her incapacitated and unable to attend or respond. [ii] Unawareness: The Appellant was not informed about the hearing dates nor served notice properly, leading to their inability to take prompt action in due time. Service of process is a fundamental and essential element of due process, and when done improperly, it can lead to a miscarriage of justice. In this present case, we contend that the summons was not effectively served to the appellant, and as a result, she was deprived of her constitutional right to notice and the opportunity to be heard. 7. It is well-established in law that the service of process must adhere to specific requirements to ensure fairness in legal proceedings. These requirements are in place to guarantee that an individual is made aware of the legal action being taken against them and is provided with the opportunity to respond. 8. We contend that the service of process in this case was deficient due to the following reasons: a) Failure to Comply with Statutory Requirements: The process server failed to adhere to the statutory requirements for service of process, which may specify methods, timelines, and procedures for serving documents. The failure to comply with these requirements renders the service defective. As per the provisions laid down in Order 5, Rule 9 of the Civil Procedure Code (CPC), if the defendant cannot be found at their residence or place of business, then alternative methods can be employed for serving the summons. However, by not following these procedures diligently, the appellant was unable to take cognizance of the legal action initiated against them. In the present case, the appellant was not aware of the divorce proceedings because they did not receive any summons from the family court. It is evident that there has been a miscarriage of justice as the appellant was denied their right to be heard in court. b) Inadequate Documentation: The affidavit of service provided by the process server lacks critical details or contains inconsistencies, casting doubt on the accuracy and legitimacy of the service. c) Insufficient Attempts: In cases of personal service, it is expected that multiple reasonable attempts are made to serve the summons. If such attempts were not made or were inadequately documented, it raises questions about the validity of the service. 2ND INTRA-COLLEGE MOOT COURT COMPETITION, 2023 MEMORIAL OF THE APPELLANT Page | 17 d) Service to the Wrong Address: There is evidence to suggest that the summons may have been served to an incorrect or outdated address, it was received by Mr. Kulkarni, which means the appellant did not have the opportunity to receive it. 9. Due to improper service of the summons and lack of opportunity to present their defence, an ex-parte decree was passed against the appellant, causing substantial emotional distress. It is necessary that the appellant’s grievances are given due consideration in our pursuit of justice. 10. It is humbly submitted before this Hon’ble Court that this situation creates an exception for condonation of delay under Section 5 of the Limitation Act, 1963. 11. In the case of Saket Kumar v. Nitu Kumari5, the Hon’ble Patna High Court observed that “The law is well settled that in case of summons being not duly served, the limitation would run from the date of knowledge to the party who makes application for setting aside the ex- parte decree. Moreover, the court said that the suit may proceed ex-parte against the defendant, only when it is proved by the plaintiff to the satisfaction of the court that the defendant did not appear even though the summons was duly served.” 12. In the Catmos Export6 case, the Hon’ble Supreme Court held that condonation of delay is a discretionary power exercised by courts based on a case-to-case basis considering various factors, including the length of delay, sufficient reasoning for delay, and balancing the rights of both parties. 13. Furthermore, in the Esha Bhattacharjee7 case, it was reiterated that a liberal approach should be taken when considering the condonation of delays to ensure that substantive rights are not defeated due to procedural technicalities. 1.1.3. Exceptions to Condonation of Delay- Section 5: 14. There are certain exceptions relating to the ambit of the doctrine of condonation of delay (Section 5): a) The doctrine is applicable to Criminal Proceedings only. b) The doctrine does not include “suit” and only covers appeals and applications. c) Other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908. The doctrine covers all appeals and applications. d) This doctrine covers all the appeals. 5 Saket Kumar vs Nitu Kumari on 16 September, 2016 6 Catmos Export Processing Zone Employees Union v. M/s Sterlite Technologies Ltd (SLP (C) Nos. 6967- 6969/2003) 7 Esha Bhattacharjee v. RGCISBIL & Others (2013) 12 SCCM 701) 2ND INTRA-COLLEGE MOOT COURT COMPETITION, 2023 MEMORIAL OF THE APPELLANT Page | 20 1.2. Section 6 of the Limitation Act, 1963 24. It is humbly submitted before this Hon’ble Court that the Delay should also be condoned on the ground of Legal disability, as outlined in Section 6 of The Limitation Act, Legal disability under the Limitation Act can be described as a period of “cooling off” during which individuals or their legal representatives are barred from initiating legal proceedings due to certain constitutional disabilities. Such disabilities may include minorities, insanity, or incompetence. Only after the disability ceases to exist can the concerned parties or their legal counsel proceed with filing a suit. However, there are circumstances where a person, due to physical or mental incapacity, is unable to file a suit or make an application. In such cases, the law acknowledges the need for additional rights and benefits for individuals with disabilities. 1.2.1. Legal Disability in the Limitation Act 1963 25. Legal Disability under the Limitation Act refers to the lack of legal capacity to perform an action due to insufficient physical and mental abilities. It denotes the incapacity of a person to exercise all the legal rights that an average person possesses. The appellant here in this present case was suffering from postpartum depression, which subsequently made her incompetent to be part of any legal proceedings. Section 6 of the Act addresses situations where a person entitled to initiate a suit or file an application for the execution of a decree is a minor, insane, or mentally disabled. It states that such a person can file a suit or make an application once the disability ends, as specified in the Act’s schedule. Now when the Appellant has recovered fully, she pleads for justice. A pregnant woman is considered an incompetent person and postpartum depression is the after-effect of pregnancy. It is contended that the appellant was legally disabled due to this medical reason. 1.3. Second Marriage: 26. It is humbly submitted before this Hon’ble Court that the respondent’s second marriage would not prevent the filing of the appeal. Divorced persons when may marry again: 27. “When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has 2ND INTRA-COLLEGE MOOT COURT COMPETITION, 2023 MEMORIAL OF THE APPELLANT Page | 21 expired without an appeal having been presented, or an appeal has been presented but has dismissed, it shall be lawful for either party to the marriage to marry again.”16 28. Since the appeal is to the High Court, the period of limitation for filing the appeal according to Article 116 of the Indian Limitation Act, 1963 is 90 days. However, we have established that the appellant had sufficient cause for filing the appeal after the limitation period had expired because of the reason that she was never knowledge of the summons which had been sent to the address specified by the respondent to the court as well and she was suffering from postpartum depression. Here, only on the point of the second marriage of the respondent, the right of the appellant to file an appeal after the expiry of the limitation period is invalid. 29. The second marriage of the respondent, though was after the expiry of the limitation period but the same should be declared void. The appellant had no intention of breaking her matrimonial relationship with the respondent. Had she received the summons that had been served, she would have attended the court proceedings for which she had been called. The respondent gave the address to the court. Further, they were returned by Mr. Kulkarni whose relationship with the appellant has not been shown. The appeal should be allowed and the second marriage of the respondent should be declared void. 30. In Ram Rattan vs Sunita Kumari Alias Pinki17, the Punjab and Haryana High Court observed that “respondent-wife has been able to prove that she was not duly served in this case and that ex-parte judgment and decree came to his knowledge for the first time when a copy of the same was produced by her husband in the police station and she filed an application for setting aside ex-parte judgment and decree within thirty days of acquiring the knowledge and hence, application is within limitation and in view of these facts, subsequent marriage of petitioner-husband would automatically be void.” 31. In Prem Parkash Gupta vs Asha Rani18, it was observed by Punjab and Haryana High Court that “if the wife is not duly served in the petition filed by the husband for divorce, she could approach the Court within thirty days from her gaining knowledge of ex- parte decree and that even mere knowledge is not enough as she is required to have complete knowledge regarding the grounds on which such petition was filed and ultimately decreed. It was further observed that the moment ex-parte decree of divorce is set aside, the second marriage would automatically become void.” 16 Section 15 of the Hindu Marriage Act, 1955 17 Ram Rattan vs Sunita Kumari Alias Pinki, Civil Revision No. 959 of 2004 (O&M) 18 Prem Parkash Gupta vs Asha Rani, (1991) 99 PLR 282 2ND INTRA-COLLEGE MOOT COURT COMPETITION, 2023 MEMORIAL OF THE APPELLANT Page | 22 ISSUE II: WHETHER THE EX-PARTE DECREE BE SET ASIDE? 32. It is humbly submitted before the Hon’ble Court that in the instant case, the ex-parte divorce decree passed by the Family Court is liable to be set aside. This is because of two reasons: first, there has been a violation of the Principles of Natural Justice and second, the summons was not duly served to the appellant. 2.1.Ex-Parte: 2.1.1. Meaning: 33. The term ex-parte has been derived from the Latin term “in absenti”, which literally means decree passed when the defendant is absent. Where the plaintiff appears and the defendant does not appear when the suit is called out for hearing and if the defendant is duly served, the court may hear the suit ex parte and pass a decree against him. This kind of decree is neither null and void nor inoperative but is merely voidable and unless and until it is annulled on legal and valid grounds it is properly lawful, operative, and enforceable like a bi-parte decree and it has all the force of a valid decree.19 2.1.2. Remedies: 34. Appeal from Original Decree: • Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. • An appeal may lie from an original decree passed ex-parte. • No appeal shall lie from a decree passed by the Court with the consent of the parties. • No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject matter of the original suit does not exceed [ten thousand rupees]. 2.1.3. Setting aside decree ex-parte against defendants: 35. In any case, in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that- • the summons was not duly served, or 19 Chandu Lal Agarwala vs. Khalilur Rahaman AIR 1950 PC 17 2ND INTRA-COLLEGE MOOT COURT COMPETITION, 2023 MEMORIAL OF THE APPELLANT Page | 25 remanded back to the Family Court for deciding the same afresh with certain directions. Hence the following Order is passed” [B] Summons not duly served: 43. It is most humbly submitted before this Hon’ble Court that the limitation period for setting aside a decree passed ex-parte decree under Order IX Rule 13 is 30 days. However, the third column of the Indian Limitation Act, 1963 states that this time period will start to run from the date of the decree or where summons or notice was not duly served then this period will start to run from the date when applicant had knowledge of the decree. In the instant case, the appellant was never served with the summons and further, the Rules 1729 and 1930 of Order-V of the Code of Civil Procedure, 1908 have not been complied with. Apart from these provisions, Rule 1971 of the Family Court Rules, 1988 has also not been complied with. 44. Order V Rule 6 of the Civil Procedure Code, 1908 provides for fixing a day for the appearance of the defendant, and Order IX Rule 6 of the Civil Procedure Code, 1908 provides for procedure when only the plaintiff appears. The day for the appearance of the defendant shall be fixed with reference to the current business of the Court, the current business of the Court, the place of residence of the defendant and the time necessary for the service of the summons; and the day shall be so fixed as to allow the defendant sufficient time to enable him to appear and answer on such day 45. Procedure when only the plaintiff appears. – • Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then- o When summons duly served- if it is proved that the summons was duly served, the Court may make an order that the suit be heard ex-parte: o When summons not duly served. if it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the defendant; o When summons served but not in due time - if it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant. 2ND INTRA-COLLEGE MOOT COURT COMPETITION, 2023 MEMORIAL OF THE APPELLANT Page | 26 • Where it is owing to the plaintiff’s default that the summons was not duly served or was not served in sufficient time. the Court shall order the plaintiff to pay the costs occasioned by the postponement. 46. It is humbly submitted to the Hon’ble Court that the summons were not duly served on the appellant. This required that second summons should have been and the court should not have proceeded with the ex-parte hearing against the appellant. The ex-parte decree should be set aside as it should not have been proceeded with at the first instance. 47. In Ram Rattan case23, the Punjab and Haryana High Court observed that “respondent-wife has been able to show that factum of divorce was not in her knowledge and that she came to know about the said ex-parte decree of divorce for the first time when a copy of the same was produced by petitioner-husband in the police station. Immediately, thereafter, she applied for a copy of the same and filed an application under Order 9 Rule 13 of the Civil Procedure Code, 1908 for setting aside ex-parte judgment and decree. Hence, the application is within limitation from the date of knowledge of the ex-parte judgment and decree passed against her at the instance of petitioner- husband.” 48. In G.P. Srivastava vs Shri R.K. Raizad24, the Honourable Supreme Court observed that “Under Order 9 Rule 13 C.P.C. an ex-parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons was not duly served upon the defendant or he was prevented by any ‘sufficient cause’ from appearing when the suit was called on for hearing. Unless ‘sufficient cause’ is shown for the non-appearance of the defendant in the case on the date of hearing, the Court has no power to set aside an ex-parte decree. The words ‘was prevented by any sufficient cause from appearing’ must be liberally construed to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party.” 49. In Vijay Kumar vs Shanti Devi25, the Honourable Supreme Court observed that “An ex- parte decree is passed when the court believes that the defendant has been served but is not appearing in court despite service of summons. In the present case, the appellate court while setting aside the ex-parte decree, has come to the conclusion that the defendant Shanti Devi (respondent no. 1 herein) was not served and, therefore, the court had wrongly proceeded against her ex-parte. That finding has been upheld till this Court. In our view, the effect of this would be that the ex-parte decree, on its being set aside, would cease to exist and 23 Supra 17 24 G.P. Srivastava vs Shri R.K. Raizad, Special Leave Petition (Civil) 17942-43 of 1990 25 Vijay Kumar vs Shanti Devi, Civil Appeal No. 2062 of 2009 2ND INTRA-COLLEGE MOOT COURT COMPETITION, 2023 MEMORIAL OF THE APPELLANT Page | 27 become non-est. After the ex-parte decree is set aside, it is no decree in the eyes of law. The decree passed by the trial court on merits should be treated as the decree of the first court. We may make it clear that we are not dealing with those cases where a case has been decided on merits and the decree is set aside by the appellate court on any other ground and the matter remanded to the trial court for decision afresh. We leave that question open.” 2.2. Best Interest of Children 50. It is humbly submitted before this Hon’ble court that if Children are involved in the divorce, it is crucial to consider their best interests. The lack of one party’s participation in the initial proceedings may have led to an incomplete assessment of what is in the children’s best interests. The court’s primary concern should be the well-being of the children. In this present case, the appellant and respondent are having a baby girl born in August 2020. 51. The significance of upholding natural justice principles is to ensure fairness and transparency in legal proceedings. By granting this appeal and allowing the appellant a chance to present their case, this court will uphold these foundational principles. 2ND INTRA-COLLEGE MOOT COURT COMPETITION, 2023 MEMORIAL OF THE APPELLANT Page | 30 (1) any marriage solemnized whether before or after the commencement of this act may on a petition presented by either the husband or the wife be dissolved by a decree of divorce on the ground that the other party. (i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; 62. In Bipin Chander Jaisinghbhai Shah vs Prabhavati30, the Honourable Supreme Court has held that “For the offense of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi).” 63. In Smt. Shanti Devi vs Govind Singh31, the Rajasthan High Court observed that “it is apparent that merely living apart or separation for mere than the statutory period by itself may not amount to desertion, because such separation may be caused on account of a variety of reasons. It may arise out of the fact that one spouse may be living at a distant place on account of employment of exigencies of business or the spouses may be living apart by agreement or consent. Therefore, to constitute desertion there must exist both the factum of separation as well as the intention to bring cohabitation permanently to an end, which is many times called animus deserendi; and both these factors must continue to exist throughout the statutory period for establishing the irretrievable breakdown of marriage, founded on the ground of desertion for a continuous period of two years.” 64. It is most humbly submitted before the Hon’ble Court that the statutory period of two years was not there[A] that there was absence of animus deserendi [B] [A] THAT THE STATUTORY PERIOD OF TWO YEARS OF DESERTION WAS NOT THERE 65. It is most humbly submitted before the Hon’ble Court that under Section 13(1) (ib) “to entitle the petitioner to the decree of dissolution of marriage on the ground of desertion, the statutory period of two years must be made be there. This period of two years must have lapsed prior to the presentation of the petition i.e., the date on which the petition is filled.” Otherwise, desertion can’t be established. In the instant case, the appellant-wife left the home on the following day November 14, 2020. This move followed several months of contact and discussions between the wife and her partner, as they tried to work through 30 Bipin Chander Jaisinghbhai Shah vs Prabhavati, 1957 AIR 176, 1956 SCR 838 31 Smt. Shanti Devi vs Govind Singh, AIR 1983 Raj 211 2ND INTRA-COLLEGE MOOT COURT COMPETITION, 2023 MEMORIAL OF THE APPELLANT Page | 31 their issues. The divorce petition was filed before the completion of the required relevant 2-year period of desertion i.e., on November 15, 2022. 66. In Meena Alias Mota vs Lachman Utamchand Kirpalani32, the Honourable Supreme Court observed that “It is settled law that the burden of proving desertion-the "factum" as well as the "animus deserendi” is on the petitioner, and he or she has to establish beyond a reasonable doubt, to the satisfaction of the Court the desertion throughout the entire period of two years before the petition. As well as that such desertion, was without just cause. In other words, even if the wife, where she is the deserting spouse, does not prove just cause for her living apart, the petitioner-husband has still to satisfy the Court that the desertion was without just cause.” [B] THAT THERE WAS ABSENCE OF ANIMUS DESERENDI 67. It is most humbly submitted before the Hon’ble Court that the intention to bring cohabitation permanently to an end (animus deserendi) is an essential element to prove desertion. In Rohini Kumar v/s Narendra Singh33, the Supreme Court held that even though there is de facto separation there will be desertion unless the guilty spouse has the intention to bring cohabitation permanently to an end. 68. In Julmi Devi vs Ravi Kumar34, the Himachal Pradesh High Court has observed that the party alleging desertion must not only prove that the other spouse is living separately but also that there is animus deserendi. The husband also has to prove that on his part there has been no such conduct that gives reasonable cause to the wife to leave her matrimonial home. 69. Establishing the facts of the present case that the appellant-wife does not have any intention to bring cohabitation to an end, she went to leave with her parents only for the sake of her girl child and her mental health. She went away in an impulsive state of mind and not with true intentions of deserting her husband. As in Snehlata Seth v. Kewal Krishna Seth, it was observed that “if any spouse abandons home in a state of temporary passion, disgust or anger without intending cohabitations cease permanently, will not amount to desertion”35 70. In Teerth Ram v. Smt Parvati Devi36, the Rajasthan High Court observed that “when the wife said she would live with her husband only when he would have a separate matrimonial 32 Meena Alias Mota vs Lachman Utamchand Kirpalani on 16 July, 1959 33 Smt. Rohini Kumar Vs. Narendra Singh (AIR 1972 SC 459) 34 Julmi Devi vs Ravi Kumar, (2006) DMC 210 35 (*Sukhdev Singh Hindu Law of Marriage and Divorce – 2nd ed. 2018) 36 Teerth Ram v. Smt Parvati Devi on July 12, 1994 2ND INTRA-COLLEGE MOOT COURT COMPETITION, 2023 MEMORIAL OF THE APPELLANT Page | 32 home then the wife was not in desertion. Therefore, in the present case, as the wife stated she wanted to live only with her husband, she didn’t intend to desert him. 71. In the instant case, the appellant stated that she never had the intention of breaking the matrimonial relationship or deserting her husband. Her mother-in-law had repeatedly taunted her for not giving birth to a male child. After all this, the appellant had asked the respondent to shift to another place but the respondent was adamant on staying with his mother. Though the factum of leaving the house is thereby the appellant the animus for the same is not. It was the conduct of the mother-in-law and the respondent that made the appellant leave the matrimonial home. 1.2. Cruelty to the appellant 72. It is humbly submitted before the Hon’ble Court that the appellant suffered cruelty to a number of acts, gestures, and words by her mother-in-law and the respondent-husband. These include- • Being forced to adhere to orthodox customs, • To perform rituals in order to have a baby boy, • The pressure of having a baby boy and not a girl as she believed that in order to attend “Moksha” a man should have a son, • Calling her by derogatory names, • Denigrating the baby girl; • Her husband bluntly refused to move to another residence with her • Criticized her for not helping his mother with household chores and lack of management skills, • Complaining about her extravagant spending. 1.2.1. Cruelty: 73. The usual ground of cruelty is violent behaviour. Thus, a husband who beats his wife is guilty of cruelty. The concept of legal cruelty is, however, wider than this. There can be cruelty even in the absence of physical violence or causing bodily hurt or danger to the person of the petitioner. Mental cruelty is also recognized in law as cruelty. The law has been clarified in England in Collins vs. Collins (1963) and in Williams vs Williams (1963). And in India mental cruelty was first mentioned in Narayan Ganesh Dastane vs Sucheta Narayan Dastane37, the Honourable Supreme 37 Narayan Ganesh Dastane vs Sucheta Narayan Dastane, 1975 AIR 1534, 1975 SCR (3) 967 2ND INTRA-COLLEGE MOOT COURT COMPETITION, 2023 MEMORIAL OF THE APPELLANT Page | 35 82. It is vehemently contended that the mother-in-law of the appellant through her continuous course of conduct made it impossible for the appellant to bear anything further. It all started with her persistent insistent for conceiving a child, thereafter, she started to pass insulting remarks about the baby girl as she was very keen on having a grandson rather than a granddaughter. Further, the acts of the mother-in-law were already putting a lot of mental pain on the appellant; this even got clubbed with the denial of the respondent to move to a separate house with the appellant thus causing constructive desertion on the part of the respondent rather than actual desertion by the appellant. 2ND INTRA-COLLEGE MOOT COURT COMPETITION, 2023 MEMORIAL OF THE APPELLANT Page | 36 ISSUE 4: WHETHER THE MARRIAGE SOLEMNIZED BY THE RESPONDENT- HUSBAND ON 30TH JUNE, 2023 IS VALID? 89. It is humbly submitted before this Hon'ble court that the second marriage of the respondent following an ex parte divorce decree is void on the grounds of bigamy as per Section 494 of the Indian Penal Code. 4.1.Section 494 of IPC 90. Section 494 states that "Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of it’s taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine." 91. It is humbly submitted before this Hon’ble Court that in this instant case, the first marriage between the appellant and the respondent has not been effectively dissolved at the time of their second marriage. The ex-parte divorce decree issued earlier was not conclusive, as it was granted without considering all necessary aspects or allowing reasonable opportunities for both parties to defend their respective stands. 92. The counsel for the appellant contends that despite obtaining an ex parte divorce decree, the first marriage remains legally valid since it has not been declared null and void following a fair trial or mutual consent. Consequently, when the respondent entered into their second marriage, they were still legally married to appellant, constituting bigamy under Section 494 of IPC. 93. In the case, Priya Bala Ghosh vs Suresh Chandra Ghosh44, the Supreme Court upheld that a spouse must act on their own behalf to set aside an ex-parte decree before remarriage can take place. If they fail to do so, their second marriage will remain unlawful and subject them to punishment according to Section 494 IPC. 94. In the case, Smt. Yamunabai Anantrao Adhav vs Ranantrao Shivram Adhav And Another45 determined that if the first spouse contests an ex parte divorce decree obtained by fraud or misrepresentation and renders it invalid or pending in appeal, any subsequent marriage during this period will be considered bigamous. 95. Smt. Sarla Mudgal vs Union of India46: In this case, the Supreme Court held that a second marriage, even after converting to another religion, would be considered void if the first marriage was not dissolved lawfully. 44 Priya Bala Ghosh vs Suresh Chandra Ghosh (AIR 1971 SC 1153) 45 Smt. Yamunabai Anantrao Adhav vs Ranantrao Shivram Adhav And Another (1988 AIR 644) 46 Smt. Sarla Mudgal vs Union of India (1995) AIR 1531, 1995 SCC (3) 635 2ND INTRA-COLLEGE MOOT COURT COMPETITION, 2023 MEMORIAL OF THE APPELLANT Page | 37 96. Lila Gupta vs Laxmi Narain & Ors47: The Supreme Court observed that remarriage during the pendency of an appeal against an ex parte divorce decree can be considered void unless there is no chance of re-appeal or reversal of the decree. 97. Sadashiv Ramrao Hadbe vs State of Maharashtra & Anr48: In this case, the accused was convicted for bigamy because he remarried without dissolving his first marriage legally. 98. Bhanwari Devi vs State of Rajasthan49: The accused was charged for bigamy under Section 494 IPC when he remarried after obtaining an ex parte divorce decree without properly informing or involving his first wife in the divorce proceedings. 99. This is humbly submitted before this Hon'ble court that the appellant-wife is a victim of bigamy as per Section 494 of IPC. The respondent married the appellant and then remarried, while the first marriage was still subsisting. The respondent tried to obtain an ex parte divorce, but as established in the case of Lila Gupta vs Laxmi Narain 50, a second marriage during the pendency of an appeal against an ex parte divorce decree can be considered void. 100. It is humbly submitted before this Hon'ble court that the landmark case of Smt. Sarla Mudgal vs Union of India (1995)51, the Supreme Court emphasized that a person's second marriage would be deemed void if the first one was not dissolved lawfully.It is humbly submitted before this hon'ble court that drawing reference from Bhanwari Devi vs State of Rajasthan52it is clear that remarriage without obtaining a proper dissolution of the first marriage is invalid. It is most humbly requested to this Hon’ble Court to declare the respondent's second marriage as null and void and provide just relief to the Appellant. 47 Lila Gupta vs Laxmi Narain & Ors (1978): AIK 1351, 1978 SCR (3) 922 48 Sadashiv Ramrao Hadbe vs State of Maharashtra & Anr (2006) 108 BOMLR 315, (2006) 10 SCC 92 49 Bhanwari Devi vs State of Rajasthan 2002 (2) WLC 425, 2002(1) WLN 700 50 Supra 47 51 Supra 46 52 Supra 49