Before: Roll Number - 2016LJA148

Roll Number - 2016LJA148
 
GURU NANAK DEV UNIVERSITY - 1st MOOT COURT
SEMESTER 9
Before
THE HON’BLE HIGH COURT
CIVIL APPEAL NO. ____ OF 2020
UNDER SECTION 13(ia) OF HINDU MARRIAGE ACT,1955
BETWEEN
SANJANA…………………………………………………APPELLANT
v.
ASHOK…………………………………………………RESPONDENT
IN THE MATTER CONCERNING APPEAL, EX PARTE DECREE

AND DIVORCE
MEMORIAL ON BEHALF OF APPELLANT

TABLE OF CONTENTS 
1. LIST OF ABBREVIATIONS………………………………4
2. INDEX OF AUTHORITIES………………………………5
• Cases………………………………………………………………5
• Books and Lexicons………………………………………………7
• Statutes……………………………………………………………7
3. STATEMENT OF JURISDICTION………………………….……8
4. STATEMENT OF FACTS…………………………………….……9
5. ISSUES PRESENTED………………………………………..……11
6. SUMMARY OF PLEADINGS………………………………….…12
• PLEADINGS …………………………………………………….13
[1] WHETHER THE APPEAL IS MAINTAINABLE?
[1.1] Definition of Appeal………………………………….…………13
[1.2] Sufficient cause for the delay in filing the appeal……….……14
[1.3] Period of delay is not the criteria ………………………..……16
[1.4] Second Marriage…………………………………………….…17
[2] WHETHER THE EX-PARTE DECREE COULD BE SET ASIDE? 

[2.1] Meaning of Ex-Parte……………………………………..……19
[2.2] Remedies of Ex-Parte………………………………….………19
[2.3] Violation of Principles of Natural Justice ……………………22

MEMORIAL ON BEHALF OF APPELLANT Page 2
[2.4] Summons not duly served…………………………………..…25
[3] WHETHER THERE WAS DESERTION AND CRUELTY?
[3.1] Meaning of Desertion……………………………………….…29
[3.2] Factum and Animus……………………………………………30
[3.3] Constructive Desertion……………………………..…………31
[3.4] Meaning of Cruelty……………………………………………33
[3.5] Mental Cruelty…………………………………………………35
[3.6] Section 23 of Hindu Marriage Act, 1955……………..………37
7. PRAYER…………………………………………………………………39

TABLE OF ABBREVIATIONS
AC Appeal Cases
AIR All India Reporter
ALD Andhra Legal Decision
All Allahabad
ALT Andhra Law Times
Anr. Another
Bom Bombay
Bom CR Bombay Cases Reporter
Code Civil Procedure Code,1908
CRP Civil Revision Petition
DMC Divorce and Matrimonial Cases
Ed. Edition
ELT Equivalent
Guj Gujarat
Hon’ble Honourable
i.e. That is
ILR Indian Law Reports
LPA Letter Patents Appeal
No. Number
PC Privy Council
PLR Punjab Law Reporter
Raj Rajasthan
SCC Supreme Court Cases
SCR Supreme Court Reports
u/s Under section
v / vs. Versus

INDEX OF AUTHORITIES
• CASE LAWS CITED :
Issue I
1. Ajit Singh Thakur Singh and Ors. vs. State of Gujarat, AIR 1981 733
2. Shakuntala Devi Jain vs. Kuntal Kumari and Ors, AIR 1969 SC 733
3. State of Haryana vs. Hindustan Machine Tools Limited, LPA No.377 of 2012 (O&M)
4. State (NCT of Delhi) vs. Ahmed Jaan, Criminal Appeal No. 1262 of 2008
5. State Of M.P. And Anr vs Pradeep Kumar And Anr, (2000) 7 SCC 372
6. Municipal Corporation vs Voltas Limited And Etc., AIR 1995 Guj 29
7. N. Balakrishnan vs. M. Krishnamurthy, (1998)7 SCC 123
8. Mrs. Zulaiha Syed Mohideen vs D. Visalakshi Ammal (Deceased), C.R.P. (NPD) No.
2768 of 2013
9. Ram Rattan vs Sunita Kumari Alias Pinki, Civil Revision No.959 of 2004 (O&M)
10. Prem Parkash Gupta vs Asha Rani, (1991) 99 PLR 282
Issue II
11. Bhanu Kumar Jain v. Archana Kumar, (2005) I SCC 787
12. Mohd. Iqbal v. K. Jagadeshwar Rao, 1991 (1) ALT 58
13. Polsani Jagannath Reddy And Anr. vs Gurram Vijaya, 1998 (4) ALD 262
14. Ajudhia Prasad v. Balmukund ILR, (1866) 8 All 354 (FB)
15. Uma Nath Pandey V. State of U.P, 2009 (237) ELT 241 (S.C.)

16. Sachin Arvindrao Mahajan V. Vrushali Sachin Mahajan, FAMILY COURT APPEAL
NO.13 OF 2018
17. Ram Rattan vs Sunita Kumari Alias Pinki, Civil Revision No.959 of 2004 (O&M)
18. Krishan v Smt. Sumitra, I (2003) DMC 731
19. G.P. Srivastava vs Shri R.K. Raizad, Special Leave Petition (civil) 17942-43 of 1999
20. Vijay Kumar vs Shanti Dev,i CIVIL APPEAL NO.2062 OF 2009
21. Diwalibai Damjibhai Bhatti And ... vs Jaikumar Gopaldas Jain, AIR 1969 Bom 393
Issue III
22. Bipin Chander Jaisinghbhai Shah vs Prabhawati, 1957 AIR 176
23. Lachman Utamchand Kirpalani vs. Meena, 1964 AIR 40
24. Smt. Shanti Devi vs Govind Singh, AIR 1983 Raj 211
25. Parbhat S/O Shekuba Pawar vs Swati @ Pushpa W/O Parbhat Pawar, 2008 (1)
BomCR 827
26. Julmi Devi vs Ravi Kumar, (2006) DMC 210
27. Lang v Lang, 1965 AC 402
28. Teerth Ram vs Smt. Parvati Dev,i AIR 1995 Raj 86
29. Jyotish Chandra Guha vs. Meera Guha, AIR 1970 Cal 266
30. Bipin Chander Jaisinghbhai Shah vs Prabhawati, 1957 AIR 176
31. Russel vs Russel, (1897) AC 395
32. Narayan Ganesh Dastane vs Sucheta Narayan Dastane, 1975 AIR 1534
33. Savitri Pandey vs Prem Chandra Pandey, (2002) 2 SCC 73

34. Praveen Mehta vs. Inderjit Mehta, Appeal (civil) 3930 of 2002
35. Vijayakumar Ramchandra Bhate v. Neela Vijayakumar Bhate, 2003 (3) SCR 607
36. Naveen Kohli vs Neelu Kohli, 2006 SC 1675
37. Samar Ghosh v. Jaya Ghosh, Appeal (civil) 151 of 2004
• BOOKS USED :
S. No. NAME OF BOOK

1. Civil Procedure (CPC) with Limitation Act, 1963,C.K.Takwani
Eastern Book Co.(EBC)2019
2. Dr. Paras Diwan, Modern Hindu Law (Allahabad Law Agency,
23rd edition)
• STATUTES USED :
S.No. STATUTES
1. The Limitation Act, 1963
2. The Code of Civil Procedure, 1908
3. The Hindu Marriage Act, 1955

STATEMENT OF JURISDICTION
The Appellant has approached the Hon’ble Court under Section 96(2) of the Code of
Civil Procedure, 1908. 1 
1 Section 96 : Appeal from original decree

(1) 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 the Court authorized to hear appeals from the decisions of such Court.
(2) 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 parties.

STATEMENT OF FACTS
The Marriage
Mr. Ashok, a Hindu by religion tied knot with Miss. Sanjana on 17th November, 2011
according to the Hindu marital rituals. Thereafter they resided in the matrimonial home with
the parents of Mr. Ashok. Sanjana’s mother-in-law from the very beginning was an orthodox
female. She had high belief in mythology and in Hindu God. She had firm belief that to
attain Moksha (i.e. Salvation), a man needs a son, therefore she always insisted on Sanjana
to conceive and give the privilege to them of being grandparents to a grandson.
Constant Taunts and Insulting Remarks
On 9th April, 2013 Sanjana gave birth to a baby girl but instead of the happiness it became
the reason of conflict between Sanjana and her mother-in-law. With time these differences
increased gradually with the consequence that Ashok’s mother continuously passed
insulting remarks upon Sanjana and her baby girl. She often remarked that if Sanjana does
not give their family a boy, she will ask Ashok to marry another girl. Several times Ashok
fought with his own mother, telling her that he is satisfied with his wife and has no
complaints from her. Frustrated and hurt due to the whole scenario, Sanjana started
persuading Ashok to leave the house of his parents and move to a new house, to which
Ashok never agreed. He was adamant that he wants to stay with his family.
Ugly Turn in the Marriage
Frustrated with the constant bickering and inability of her husband to change residence,
Sanjana on 22nd December, 2013, decided to leave the matrimonial house with her daughter
and return to her parent’s house. After this, Ashok visited Sanjana’s house several times.

However never found her at home. He could not even visit his daughter because Sanjana
was never available.
Ex-parte Judicial Proceedings
Finally, on 2nd January 2016, Ashok frustrated with Sanjana, filed for divorce u/s 13 of the
Hindu Marriage Act,1955 alleging desertion by his wife, Sanjana . The summons were
issued to Sanjana at the address shown but the same were returned by some Ms. Asha
marked as ‘refused to accept’. The Family court considering it as good service proceeded
with the matter. The petition was heard ex-parte and on the basis of evidence adduced by
Ashok, the Family court granted divorce to the husband on 16th September, 2016. The copy
of the order was sent by Ashok to Sanjana on the address provided.
Second Marriage
On 25th February, 2017, Ashok married Miss Pooja, a Hindu by religion. Pooja conceived
Ashok’s child and was due for delivery on 13th April, 2018.
Appeal against the Ex-parte Decree
Meanwhile, Mrs. Sanjana filed an application on 3rd October, 2017 before the High Court,
for condonation of delay for filing appeal against the decree of Family Court granting ex-
parte decree to Ashok stating that she was unaware of the proceedings as the summons were
served on the address on which she was not residing. She also stated that she never had the
intention to desert Ashok but only wanted to teach his mother a lesson.

ISSUES PRESENTED
ISSUE I: 
WHETHER THE APPEAL IS MAINTAINABLE?
ISSUE II: 
WHETHER THE EX-PARTE DIVORCE DECREE COULD BE SET
ASIDE?
ISSUE III: 
WHETHER THERE WAS DESERTION AND CRUELTY?

SUMMARY OF PLEADINGS
ISSUE I: WHETHER THE APPEAL 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 provisions of the Limitation Act provide that the appeal is time barred
but the same act also provides certain exception to it.
ISSUE II: WHETHER THE EX-PARTE DECREE COULD BE SET ASIDE?
It is humbly submitted before the Hon’ble Court that the ex-parte decree should be set aside
as the appellant was not duly served with the summons 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 III: WHETHER THERE WAS DESERTION AND CRUELTY ?
It is humbly submitted before the Hon’ble Court that there was a condition of constructive
desertion in the instant case, as even though it was the appellant who physically left the
home, but it were the acts of the respondent and her mother-in-law that led to such
desertion. Thus, the acts of the respondent and his family are liable and not the appellant.
It is further 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. The time span during she lived in her matrimonial home, she was stressed for having
a baby without her will, then the pressure for having a baby boy, the threats of getting the
respondent remarried and her husband bluntly refused to move to another residence with
her.

PLEADINGS
ISSUE I: WHETHER THE APPEAL IS MAINTAINABLE?
[1.1] Definition of Appeal :
8. It is humbly submitted before the Honourable Court that appeal is a matter of right
which is provided through the Legislature under specific Statutes. Appeal provides the
aggrieved party in any decree to approach the superior court. Although this right comes
with a bar of limitation period but if a genuine and just cause can be shown for the
delay in approaching the court within the limitation period prescribed then the Court
should give due consideration to such cause. The limitation period is a technical aspect
and thus should not be disregarded without considering the just cause.
9. Appeal as defined under the Merriam-Webster Dictionary is: “A legal proceeding in

which a case is brought before a higher court for review of a lower court's judgment
with an aim of convincing the higher court that the lower court's judgment was
incorrect.”2
10. The Black’s Law Dictionary defines Appeal as “ Resort to a superior (i.e. appellate)
court to review the decision of an inferior (i.e. trial) court or administrative agency. A
complaint to a higher tribunal of an error or injustice committed by a lower tribunal, in
3
which the error or injustice is sought to be corrected or reversed.”
2 Definition of Appeal by Merriam-Webester Dictionary, Since 1828

3Black’s Law Dictionary - Definitions of the Terms and Phrases of American and English Jurisprudence,
Ancient and Modern, By HENRY CAMPBELL BLACK, M. A.

[1.2] Sufficient cause for the delay in filing the appeal:
1. Although there is a prescribed period for filing an appeal in the higher court, but there
may be certain circumstances due to which a person might not be able to approach the
court. The statutory provisions barring the delay had been made in order avoid the abuse
of the process of the court, but it does not mean it will take away the rightful opportunity
of the aggrieved party from putting ahead his point nor does it mean that the aggrieved
party would be deprived of his right of accruing remedy.
2. The Indian Limitation Act, 1963, thus provides with the provision wherein the appeal
could be admitted even beyond the prescribed limit.
• Extension of prescribed period in certain cases- “Any appeal or any

application, other than an application under any of the provisions of Order XXI
of the Code of Civil Procedure, 1908 (5 of 1908) may be admitted after the
prescribed period, if the appellant or the applicant satisfies the court that he had
sufficient cause for not preferring the appeal or making the application within
such period.
Explanation – The fact that the appellant or the applicant was misled by any order,
practice or judgment of the High Court in ascertaining or computing the prescribed
period may be sufficient cause within the meaning of this section.” 4
3. In the instant case, the Appellant had a sufficient cause due to which she could not
approach the appellate court within the limitation period. The summons by the Court
were sent to the address as had been mentioned by the Respondent. The same were
never received by the Appellant since she no longer lived at that address. Thus, the
appellant could not appear in the proceeding appear under Section 13, and the decree
was passed ex-parte. It is only when the Appellant got to know about then only she had
approached the Honourable Court.
4 Section 5, Indian Limitation Act, 1963

4. In the case of Ajit Singh Thakur Singh and Ors. vs. State of Gujarat,5 the Supreme
Court held that “the sufficient cause must establish that because of some event or
circumstance arising before limitation expired it was not possible to file the appeal
within tune. No event or circumstance arising after the expiry of limitation can
constitute such sufficient cause. There may be events or circumstances subsequent to the
expiry of limitation which may further delay the filing of the appeal. But that the
limitation has been allowed to expire without the appeal being filed must be traced to a
cause arising within the period of limitation.”
5. In Shakuntala Devi Jain vs. Kuntal Kumari and Ors,6 the Supreme Court quoted that
“Section 5 gives the Courts a discretion which in respect of jurisdiction is to be
exercised in the way in which judicial power and discretion ought to be exercised upon
principles which are well understood; the words "sufficient cause" receiving a liberal
construction so as to advance substantial justice when no negligence nor inaction nor
want of bonafides is imputable to the appellant.”
6. In State of Haryana vs. Hindustan Machine Tools Limited, 7 it was observed by the
Punjab and Haryana High Court that “ Section 5 of Indian Limitation Act,1963 enables
the Court to admit an appeal or an application after the expiry of prescribed period of
limitation on sufficient cause being shown for the delay. It is meant to condone the
default of the party wherever it is able to satisfy that sufficient cause exists. Thus,
sufficient cause is sine qua non for exercise of discretion for condoning delay under this
provision. The discretion, however, is to be judicial and not arbitrary. "Sufficient cause"
has not been defined by the legislature in the 1963 Act but is to be ascertained on the
individual facts of each case.”
5 AIR 1981 SC 733

6 AIR 1969 SC 575
7 LPA No.377 of 2012 (O&M)

7. In State (NCT of Delhi) vs. Ahmed Jaan,8 the Supreme Court held that, “The
expression "sufficient cause" should, therefore, be considered with pragmatism in

justice-oriented approach rather than the technical detection of sufficient cause for
explaining every day's delay.”
8. In State Of M.P. And Anr vs Pradeep Kumar And Anr,9 it was observed by the Supreme
Court that “even a vigilant litigant is prone to commit mistakes. As the aphorism "to err
is human" is more a practical notion of human behaviour than an abstract philosophy,
the unintentional lapse on the part of a litigant should not normally cause the doors of
the judicature permanently closed before him. The effort of the Court should not be one
of finding means to pull down the shutters of adjudicatory jurisdiction before a party
who seeks justice, on account of any mistake committed by him, but to see whether it is
possible to entertain his grievance if it is genuine.”
[1.3] Period of delay is not the criteria:
1. In Municipal Corporation vs Voltas Limited And Etc.,10 it was observed by the

Gujarat High Court that “whether the delay is for a short period or a long period is of
no consequence because the Court is required to consider the reasons for delay and to
apply to principles laid down in various cases. It is not, a matter of rule that because
there is a short delay, it should be condoned or because there is a long delay, the
application for condonation of delay should be rejected. It depends upon the sufficiency
or otherwise of the reasons mentioned in the application for condonation of delay.”
2. In the case of N. Balakrishnan vs. M. Krishnamurthy,11 it was held by the Supreme

Court that “Section 5 of the Limitation Act does not say that such discretion can be
exercised only if the delay is within a certain limit. Length of delay is no matter;
acceptability of the explanation is the only criterion. Sometimes delay of the shortest
8 Criminal Appeal No. 1262 of 2008

9 (2000) 7 SCC 372
10 AIR 1995 Guj 29
11 (1998)7 SCC 123

range may be uncontainable due to want of acceptable explanation whereas in certain
other cases delay of very long range can be condoned as the explanation thereof is
satisfactory.”
3. In Mrs. Zulaiha Syed Mohideen vs D. Visalakshi Ammal (Deceased),12it was stated by

the Madras High Court that, “length of delay is not material, but the reasons stated
thereof for condonation of delay. In other words, for condonation of delay, the reasons
adduced must be properly pleaded, convincing and acceptable and explanation should
be offered for condonation of the delay.”
[1.4] Second Marriage :
1. In the instant case, the maintainability of the appeal is under question for which the
respondent has put forward sufficient reasons, but the other point that is under
question is that whether the second marriage would disallow the appellant from filing
the appeal or not. Apart from this, the question that needs to be answered is the
validity of the second marriage of the respondent.
2. Divorced persons when may marry again:
“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 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.”13
3. 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 a sufficient cause for filing the appeal after the
limitation period had expired because of the reason that she was never having the
knowledge of the summons which had been sent to the address specified by the
12 C.R.P. (NPD) No. 2768 of 2013

13 Section 15, Hindu Marriage Act, 1955

respondent to the court. Here, merely on the point of second marriage of the
respondent , the right of the appellant to file an appeal after the expiry of the limitation
period should not be rendered infructuous.
4. 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 some Ms. Asha 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.
5. In Ram Rattan vs Sunita Kumari Alias Pinki,14 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 copy of the same was produced by her husband in the police station and she
filed 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.”
6. In Prem Parkash Gupta vs Asha Rani,15 it was observed by Punjab and Haryana
High Court that “if wife is not duly served in the petition filed by 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.”
14 Civil Revision No.959 of 2004 (O&M)

15 (1991) 99 PLR 282

ISSUE II: WHETHER THE EX-PARTE DECREE COULD BE SET
ASIDE?
[2.1] Meaning of Ex-Parte :
1. It is humbly submitted before the Honourable Court that the decree passed by the
Family Court was ex-parte, and that the appellant is an aggrieved party who had the
right to present her side but she could not do the same due to summons which did not
reach her. This led to the non- appearance and further extended the delay.
2. The term ex-parte has been derived from a 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 ground it is properly lawful,
operative and enforceable like bi-parte decree and it has all the force of valid decree.16
3. It is humbly averred that in context of the present case the ex-parte divorce decree
passed by the Family Court is liable to be set aside. This is because of the two reasons -
First, there has been violation of Principles of Natural Justice and Secondly, the
summons were not duly served to the appellant.
[2.2] Remedies for ex-parte decree:
1. Appeal from Original Decree17:
(1) 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
16 Chandu Lal Agarwalla v. Khalilur Rahaman, AIR 1950 PC 17

17 Section 96, The Code of Civil Procedure, 1908

passed by any Court exercising original jurisdiction to the Court authorised to
hear appeals from the decisions of such Court.
(2) An appeal may lie from an original decree passed ex-parte.
(3) No appeal shall lie from a decree passed by the Court with the consent of
parties.
(4) 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].20
2. Setting aside decree ex-parte against defendants18 :
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-
(i) the summons was not duly served, or  

(ii) that he was prevented by any sufficient cause from appearing when the suit was  
called on for hearing,  
the Court shall make an order setting aside the decree as against him upon such terms
as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day
for proceeding with the suit.
Provided that where the decree is of such nature that it cannot be set aside as against
such defendant only it may be set aside as against all or any of the other defendants
also.
Provided further that no Court shall set aside a decree passed ex-parte merely on the
ground that there has been irregularity in the service of summons, if it is satisfied that
18 Order IX Rule 13, The Code of Civil Procedure, 1908

the defendant had notice of the date of hearing and had sufficient time to appear and
answer the plaintiff’s claim.
Explanation — Where there has been an appeal against a decree passed ex-parte
under this rule, and the appeal has been disposed of on any other ground other than
the ground that the appellant has withdrawn the appeal, no application shall lie under
this rule for setting aside of the ex-parte.
3. The above remedies are concurrent and they can be prosecuted simultaneously or
concurrently.19
4. In Mohd. Iqbal v. K. Jagadeshwar Rao,20 it was held by the Andhra Pradesh High Court
that “As regards the right of these remedies are concerned, it is always open to the suitor
to elect any one of the remedies. It is now well settled by catena of decisions of several
High Courts including the Madras High Court and this Court, that simultaneously the
procedure under Order 9, Rule 13 and Section 96(2) of the Code can be pursued. But no
order could be passed "after orders are passed under either of the provisions.”
5. In Polsani Jagannath Reddy And Anr. vs Gurram Vijaya,21 the Andhra Pradesh High
Court clarified the distinction between Order IX Rule 13 and Section 96(2) as “The
scope of the two provisions extracted above is entirely different. In an application under
Rule 13 of Order 9, what all the Court has to see is whether summons was not duly
served, or whether the defendant was prevented by any sufficient cause from appearing
when the suit was called on for hearing. If the Court is satisfied that either the summons
was not served or though served, he was prevented by sufficient cause, it may set aside
the exports decree, and restore the suit to its original position before passing the decree.
But in an appeal under Section 96 the appellate Court has ample jurisdiction to go into
the merits of the decree. In other words, if there is some evidence adduced on behalf of
the plaintiff on which the decree is based, the appellate Court can go into the sufficiency
19 Bhanu Kumar Jain v. Archana Kumar, (2005) I SCC 787

20 1991 (1) ALT 58
21 1998 (4) ALD 262

or reliability of the said evidence as well as maintainability of the suit, including the
jurisdiction of the lower Court, or whether the suit is barred by time, or the legality of
the decree etc. These considerations have no place while considering the application
filed under Order 9, Rule 13. Therefore, the scope of enquiry under the two provisions is
entirely different apart from forums being different viz., trial Court in one case, and the
appellate Court in another case. These features distinguishing application of one
provision from the other cannot exclude the enquiry in one application from the other
unless it is expressly excluded or by necessary implication. There is nothing in the Act
which prohibits the defendant from filing an appeal if his application under Order 9,
Rule 13 is dismissed.”
6. In Ajudhia Prasad v. Balmukund,22 it was stated by the Allahabad High Court that
“Where two proceedings or two remedies are provided by a statute, one of them must
not be taken as operating in derogation of the other.”
[2.3] Violation of Principles of Natural Justice:
1. According to the principles of Natural Justice, every party has a right of Audi Alteram
Partem, which means “right to be heard”. Whenever there is a dispute between two
parties, both of them possess the right to put their points before the court. Under no
circumstances this right could be curtailed if the parties could prove their reasons behind
their non- appearance at the time of the hearing.
2. The right to be heard is one of the major rights under the natural justice principle and
thus if the appellant had justifiable reasons due to which she could not avail her right at
the time of the hearing, then that right cannot be seized if she has valid and legal
justifications for the same. A party should not be deprived of hearing unless there has
been something equivalent to misconduct or gross negligence on his part.
3. It is vehemently contended in the context of the present case that the appellant has been
illegally proceeded against ex-parte by the Family Court in spite of the fact that the
22 ILR (1866) 8 All 354 (FB) 

appellant was never served with the summonses. It is alleged that no summonses were
served upon her, because they were served on he address given by the respondent, who
knew that she was not there. He had learned this on his various visits to the said address.
Further, the summons were returned by Ms. Asha and were marked as ‘refused to
accept’. But who is Ms. Asha and is she related to the appellant has not been shown.
4. It is humbly submitted that the appellant was not given a chance to present herself and
to put her case in front of the court which amounts to violation of Principles of Natural
Justice.
5. In Uma Nath Pandey V. State of U.P,23 the Hon’ble SC in has observed that “Natural
justice is another name for common sense justice. Rules of natural justice are not
codified canons. But they are principles ingrained into the conscience of man. Natural
justice is the administration of justice in a common sense liberal way. Justice is based
substantially on natural ideals and human values. The administration of justice is to be
freed from the narrow and restricted considerations which are usually associated with a
formulated law involving linguistic technicalities and grammatical niceties. It is the
substance of justice which has to determine its form.The expressions "natural justice"
and "legal justice" do not present a water-tight classification. It is the substance of justice
which is to be secured by both, and whenever legal justice fails to achieve this solemn
purpose, natural justice is called in aid of legal justice. Natural justice relieves legal
justice from unnecessary technicality, grammatical pedantry or logical prevarication. It
supplies the omissions of a formulated law. As Lord Buckmaster said, no form or
procedure should ever be permitted to exclude the presentation of a litigants' defence.”
23 2009 (237) ELT 241 (S.C.)

6. In Sachin Arvindrao Mahajan V. Vrushali Sachin Mahajan,24 Hon’ble Bombay High Court
observed that “there was no compliance of procedure laid down in the Rule 1925 of the Family
Court Rules, 1988 and Rule 1726 and 1927 of Order-V of the Code of Civil Procedure.Therefore,
as passing of impugned decree of divorce is violating principles of natural justice, as no proper
opportunity of hearing was accorded to the respondent/husband, the said ex-parte decree is
liable to be set aside by allowing the appeal and the respondent/husband needs to be given an
opportunity to contest the proceeding by giving appropriate directions to the Family Court to
decide the petition afresh after remanding the same. And held that impugned ex-parte decree of
dissolution of marriage passed on the basis of said ex-parte order is against principles of natural
justice as no proper opportunity was accorded to the respondent/ husband and the same cannot
24 FAMILY COURT APPEAL NO.13 OF 2018
25 Proof of Service of Summons - Unless the Court shall otherwise order, the service of a Summons to appear
and answer shall be proved by the Vakalatnama having been filed or when no Vakalatnama has been filed, by
evidence showing that the Summons was served in the manner provided by the Code of Civil Procedure.
Such proof shall ordinarily be by the affidavit of the bailiff and (as to such matters as the bailiff cannot speak
to of his knowledge) of the person who attended the bailiff for the purpose of identification at the time of
service or of such other person or persons as can speak to the identity of the person served or to other matters
necessary to be proved in respect of the service.
26 Procedure when defendant refuses to accept service, or cannot be found: Where the defendant or his agent
or such other person as aforesaid refuses to sign the acknowledgement, or where the serving officer, after
using all due and reasonable diligence, cannot find the defendant, (who is absent from his residence at the
time when service is sought to be effected on him at his residence and there is no likelihood of his being
found at the residence within a reasonable time) and there is no agent empowered to accept service of the
summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a
copy of the summons on the outer door or some other conspicuous part of the house in which the defendant
ordinarily resides or carries on business or personally works for gain, and shall then return the original to the
Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so
affixed the copy, the circumstances under which he did so, and the name and address of the person (if any)
by whom the house was identified and in whose presence the copy was affixed.
27 Examination of Serving Officer: Where a summons is returned under rule 17, the Court shall, if the return
under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified,
examine the serving officer on oath, or cause him to be so examined by another Court, touching his
proceedings, and may make such further enquiry in the matter as it thinks fit; and shall either declare that the
summons has been duly served or order such service as it thinks fit.

be sustained on the said ground alone. For the reasons aforesaid, we answer above formulated
point in the affirmative and hold that the impugned decree needs to be set aside by allowing the
appeal and petition needs to be remanded back to the family Court for deciding the same afresh
with certain directions. Hence the following Order is passed.”
[2.4] Summons not duly served :
1. It is humbly submitted to the Hon’ble Court that the limitation period for setting aside a
decrees passed ex-parte decree under Order IX Rule 13 is 30 days28. 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 Rule
1729 and 1930 of Order-V of the Code of Civil Procedure, 1908 have not been complied
with. Apart from these provisions, Rule 1931 of the Family Court Rules, 1988 has also
not been complied with.
2. Order V Rule 6 of the Civil Procedure Code, 1908 provides for ‘fixing day for
appearance of defendant’ and Order IX Rule 6 the of the Civil Procedure Code, 1908
provides for procedure when only the plaintiff appears.
• Fixing day for appearance of defendant. - 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
28 Article 123 of Indian Limitation Act, 1963

29 Supra 26
30 Supra 27
31 Supra 25

• Procedure when only plaintiff appears. -
(1) 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 was
duly served, the Court may make an order that the suit be heare
ex-parte;
(b) 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;
(c) 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.
(2) 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.
3. 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.
4. In Ram Rattan vs Sunita Kumari Alias Pinki,32 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 copy of the same was produced by petitioner-husband in the police
station. Immediately, thereafter, she applied for copy of the same and filed application
32 Supra 14

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.”
5. In Krishan v Smt. Sumitra,33 the Madhya Pradesh High Court said that “Having heard
the learned Counsels for the parties and after perusal of the record of the Court below, I
am of the view that the Trial Court had not followed the mandatory provisions
prescribed Under Rules 17 and 19 of Order 5, C.P.C. I have also perused the order-
sheet of the Trial Court. The suit was filed on 7.1.1992. On the same day, notices were
issued for 17.1.1992 and on the report of the Process Server that the respondent-
defendant has refused to receive the notice, the Trial Court proceeded ex-parte against
the respondent-defendant. The Process Server has not filed his own affidavit as
required under the rules nor the Court has verified the same nor recorded his evidence
nor the summons was affixed as required under the law. Therefore, it is true that the
Trial Court has not made any compliance of the provisions of law and has wrongly
proceeded ex-parte against the respondent-defendant. In view of the aforesaid factual
position on record that the summons were not properly served on the respondent-
defendant, the petition/suit should not have been heard and decided on merits.
Accordingly, this appeal is allowed. The impugned decree passed by the Court below is
set aside and the case is remanded to the Court below (Family Court) to decide the
same afresh.”
6. In G.P. Srivastava vs Shri R.K. Raizad34, 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 were 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 non-appearance of
the defendant in the case on the date of hearing, the Court has no power to set aside an
33 I (2003) DMC 731

34 Special Leave Petition (civil) 17942-43 of 1999

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 erring party.”
7. In Vijay Kumar vs Shanti Devi,35 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 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.”
8. In Diwalibai Damjibhai Bhatti And ... vs Jaikumar Gopaldas Jain,36 the Bombay
High Court observed that “power to dismiss in default or to proceed ex parte also
implies equally a duty to restore an application dismissed for default or to set aside ex
parte order if the defaulting party satisfies the authority that there was good cause for
non-appearance. This right and this duty is a sine qua non of judicial procedure.”
35 CIVIL APPEAL NO.2062 OF 2009
36 AIR 1969 Bom 393

ISSUE III : WHETHER THERE WAS DESERTION AND
CRUELTY?
[3.1] Meaning of Desertion :
1. It is humbly submitted before the Honourable Court that the continuous course of
conduct of the respondent and her mother created a compelling situation for the
appellant to leave her matrimonial home. The appellant had no such intention to break
her matrimonial bond, but it was the appellant and his mother together made out a
scenario wherein they made it look like that the desertion was done by the appellant,
rather in reality it was their contribution which led to that happening.
2. The expression ‘desertion’ means the desertion of the petitioner by the other party to
the marriage without reasonable cause and without the consent or against the wish of
such party, and includes wilful neglect of petitioner by the other party to the marriage,
and its grammatical variations and cognate expressions shall be construed
accordingly.37
3. “In its essence desertion means the intentional permanent forsaking and abandonment
of one spouse by the other without that other's consent, and without reasonable cause.
It is a total repudiation of the obligations of marriage. In view of the large variety of
circumstances and of modes of life involved, the Court has discouraged attempts at
defining desertion, there being no general principle applicable to all cases.”38 39
4. “Desertion is the separation of one spouse from the other, with an intention on the part
of the deserting spouse of bringing cohabitation permanently to on end without
37 Explanation to sub-section (1) of Section 13 of the Hindu Marriage Act, 1955
38 Bipin Chander Jaisinghbhai Shah vs Prabhawati, 1957 AIR 176

39 Halsbury's Laws of England (3rd Edn.) Vol. 12, pp. 241 to 243

reasonable cause and without the consent of the other spouse; but the physical act of
departure by one spouse does not necessarily make that spouse the deserting party.”40 41
[3.2] Factum and Animus:
1. In Bipin Chander Jaisinghbhai Shah vs Prabhawati,42 the Honourable Supreme Court

has held that “For the offence 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 ).”
2. In Lachman Utamchand Kirpalani vs. Meena,43 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
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.”
3. In Smt. Shanti Devi vs Govind Singh,44 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
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,
40 Supra 38
41 "Rayden on Divorce” ( 6th Edn. ), p. 128
42 Supra 38
43 1964 AIR 40
44 AIR 1983 Raj 211

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 irretrievable breakdown of
marriage, founded on 'he ground of desertion for a continuous period of two years.”
4. In Parbhat S/O Shekuba Pawar vs Swati @ Pushpa W/O Parbhat Pawar,45 the Bombay
High Court held that “mere residence by wife by itself would not amount to desertion.
The Division Bench held that the husband needs to prove the animus deserendi. He is
required to prove that without any reasonable cause and without his wish, the wife has
permanently abandoned his company.”
5. In Julmi Devi vs Ravi Kumar,46 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 which gives reasonable cause to the wife to leave
her matrimonial home.”
[3.3] Constructive Desertion:
1. The main elements of desertion are :
(a) the fact of separation (factum deserdendi), and

(b) the intention to desert (animus deserdendi).
The further elements are :
(i) without any reasonable cause,
(ii) without the consent of the other party or against the wishes.
Further, to examine the elements of desertion, the following two preliminary
observations are necessary to note with a view to clearly comprehending the legal
concept of desertion :
45 2008 (1) BomCR 827

46 I (2006) DMC 210

(A) Until an action is brought desertion remains an inchoate offence, that is to say, it can
be terminated by the party in desertion by either resuming cohabitation or expressing
an unequivocal intention to resume cohabitation.
(B) Although fact of separation is an essential element of desertion, it does not mean that
the party who leaves the matrimonial home is necessarily the deserter. It may be that
a party who stays behind may by conduct or act on his part had made it intolerable
for the other spouse to stay on in the matrimonial home. This aspect of desertion is
called constructive desertion. 47
2. In the instant case, the appellant has stated that she never had the intention of breaking
the matrimonial relationship or to desert her husband, Ashok. Her mother in law had
repeatedly taunted her for not giving birth to a male child and had even threatened her
that she would remarry his son with another girl. After all this, the appellant had asked
the respondent to shift to another place but the respondent was adamant on staying with
his parents. Though the factum of leaving the house is there by the appellant but 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.
3. In Lang v Lang,48 the House of Lords observed that “It has been recognised that the
party truly guilty of disrupting the home is not necessarily or in all cases the party who
first leaves it. The party who stays behind may be by reason of conduct on his part,
making it unbearable for a wife with reasonable self-respect, or powers of endurance, to
stay with him, so that he is the party really responsible for the breakdown of the
marriage.”
4. In Teerth Ram vs Smt. Parvati Devi,49 the Rajasthan High Court observed that “when
wife said she would live with her husband only when he would have a separate
matrimonial home then the wife was not in desertion.”
47 Law of Marriage and Divorce, Fourth Edition by Paras Diwan particularly pages 410 & 411
48 1965 AC 402
49 AIR 1995 Raj 86

5. In Jyotish Chandra Guha vs. Meera Guha,50 the Calcutta High Court analysed the
concept of constructive desertion, it observed that “Doctrine of Constructive Desertion -
Desertion is not to be tested by merely ascertaining which party left the matrimonial
home first. If one spouse is forced by the conduct of other to leave home, it may be that
the spouse responsible for the driving out is guilty of desertion. There is no substantial
difference between the case of a man who intends to cease cohabitation and leaves his
wife and the case of a man which compels his wife by his conduct, with the same
Intention, to leave him.”
6. In Bipin Chander Jaisinghbhai Shah vs Prabhawati,51 the Honourable Supreme Court
held that “where the wife is forcibly turned out from her marital home by the husband,
the husband is guilty of constructive desertion. The test is not who left the matrimonial
home first. If one spouse by his words and conduct compel the other spouse to leave the
marital home, the former would be guilty of desertion, though it is the latter who has
physically separated from the other and has been made to leave the marital home.”
[3.4] Meaning of Cruelty :
1. It is humbly submitted before the Honourable Court that the appellant suffered cruelty
due to a number of acts, gestures and words by her mother-in-law and the respondent
husband. These include - pressure of having a baby without her will, then the pressure
for having a baby boy, the threats of getting the respondent remarried and her husband
bluntly refusing to move to another residence with her.
2. Cruelty means ''the quality of being cruel; disposition of inflicting suffering; delight in
or indifference to another's pain; mercilessness; hard-heartedness'.52
50 AIR 1970 Cal 266

51 Supra 38
52 Oxford

3. The term “mental cruelty” has been defined as, “a ground for divorce, one spouse's
course of conduct (not involving actual violence) that creates such anguish that it
endangers the life, physical health, or mental health of the other spouse.”53
4. In Russel vs Russel,54 a leading English case, the definition of cruelty was given by as
Lopes, L.J. "There must be danger to life, limb, or health, bodily or mental, or a
reasonable apprehension of it, to constitute legal cruelty."
5. In Narayan Ganesh Dastane vs Sucheta Narayan Dastane,55 the Honourable
Supreme Court observed that “The inquiry therefore has to be whether the conduct
charged a,.- cruelty is of such a character as to cause in the mind of the petitioner a
reasonable apprehension that it will be harmful or injurious for him to live with the
respondent. It is not necessary, as under the English law, that the cruelty must be of
such a character as to cause "danger" to life, limb or health or as to give rise to a
reasonable apprehension of such a danger.”
6. In Savitri Pandey vs Prem Chandra Pandey,56 the Honourable Supreme Court

observed that “Cruelty may be physical or mental. Mental cruelty is the conduct of
other spouse which causes mental suffering or fear to the matrimonial life of the other.
"Cruelty", therefore, postulates a treatment of the petitioner with such cruelty as to
cause a reasonable apprehension in his or her mind that it would be harmful or
injurious for the petitioner to live with the other party.”
7. In Praveen Mehta vs. Inderjit Mehta,57 the Honourable Supreme Court referred to
Mulla Hindu Law and observed that “it was formerly thought that actual physical harm
or reasonable apprehension of it was the prime ingredient of this matrimonial offence.
That doctrine is now repudiated and the modern view has been that mental cruelty can
53 Black's Law Dictionary, 8th Edition, 2004

54 (1897) AC 395
55 1975 AIR 1534
56 (2002) 2 SCC 73
57 Appeal (civil) 3930 of 2002

cause even more grievous injury and create in the mind of the injured spouse
reasonable apprehension that it will be harmful or unsafe to live with the other party.
The principle that cruelty may be inferred from the whole facts and matrimonial
relations of the parties and interaction in their daily life disclosed by the evidence is of
greater cogency in cases falling under the head of mental cruelty. Thus mental cruelty
has to be established from the facts.”58
[3.5] Mental Cruelty :
1. 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 for the
baby girl as she was very keen for having a grandson rather than a granddaughter. Also,
she continuously gave threats that she might remarry her son in order for having a boy
child for their family. This in the present scenario could be perceived to be true, as the
chain of events show that their motive was to get the respondent remarried. Further, the
acts of 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 respondent rather than
actual desertion by the appellant.
2. “The general rule in all cases of cruelty is that the entire matrimonial relationship must
be considered, and that rule is of special value when the cruelty consists not of violent
acts but of injurious reproaches, complaints, accusations or taunts. In cases where no
violence is averred, it is undesirable to consider judicial pronouncements with a view
to creating certain categories of acts or conduct as having or lacking the nature or
quality which renders them capable or incapable in all circumstances of amounting to
cruelty; for it is the effect of the conduct rather than its nature which is of paramount
importance in assessing a complaint of cruelty. Whether one spouse has been guilty of
cruelty to the other is essentially a question of fact and previously decided cases have
58 Mulla Hindu Law, 17th Edition, Volume II, page 91

little, if any, value. The court should bear in mind the physical and mental condition of
the parties as well as their social status, and should consider the impact of the
personality and conduct of one spouse on the mind of the other, weighing all incidents
and quarrels between the spouses from that point of view; further, the conduct alleged
must be examined in the light of the complainant's capacity for endurance and the
extent to which that capacity is known to the other spouse. Malevolent intention is not
essential to cruelty but it is an important element where it exits.”59
3. “Mental Cruelty as a course of unprovoked conduct toward one's spouse which causes
embarrassment, humiliation, and anguish so as to render the spouse's life miserable and
unendurable. The plaintiff must show a course of conduct on the part of the defendant
which so endangers the physical or mental health of the plaintiff as to render continued
cohabitation unsafe or improper, although the plaintiff need not establish actual
instances of physical abuse.”60
4. In Vijayakumar Ramchandra Bhate v. Neela Vijayakumar Bhate,61 the Honourable

Supreme Court observed that “As to what constitute the required mental cruelty for
purposes of the said provision, in our view, will not depend upon the numerical count
of such incidents or only on the continuous course of such conduct, but really go by the
intensity, gravity and stigmatic impact of it when meted out even once and the
deleterious effect of it on the mental attitude, necessary for maintaining a conducive
matrimonial home. If the taunts, complaints and reproaches are of ordinary nature only,
the Courts perhaps need consider the further question as to whether their continuance
or persistence over a period time render, what normally would, otherwise, not be a so
serious an act to be so injurious and painful as to make the spouse charged with them
genuinely and reasonable conclude that the maintenance of matrimonial home is not
possible any longer.”
59 Halsbury's Laws of England, Vol.13, 4th Edition Para 1269

60 American Jurisprudence 2d State and Federal Volume 24
61 2003 (3) SCR 607

5. In Naveen Kohli vs Neelu Kohli,62 the Honourable Supreme Court observed that
“Physical violence is not absolutely essential to constitute cruelty and a consistent
course of conduct inflicting immeasurable mental agony and torture may well
constitute cruelty within the meaning of the Act. Mental cruelty may consist of verbal
abuses and insults by using filthy and abusive language leading to constant disturbance
of mental peace of the other party.”
6. In the case of Samar Ghosh v. Jaya Ghosh,63 the apex court enumerated certain points
regarding mental cruelty; some of them are as follows
• Mental cruelty is a state of mind. The feeling of deep anguish, disappointment,

frustration in one spouse caused by the conduct of other for a long time may lead
to mental cruelty.
• A sustained course of abusive and humiliating treatment calculated to torture,

discommode or render miserable life of the spouse.
[3.6] Section 23 of Hindu Marriage Act, 1955 :
1. This provision states as follows-
• Decree in proceedings-
(1) In any proceeding under this Act, whether defended or not, if the court is
satisfied that—
(b) where the ground of the petition is the ground specified in clause (i) of
sub-section (1) of section 13, the petitioner has not in any manner been
accessory to or connived at or condoned the act or acts complained of,
or where the ground of the petition is cruelty the petitioner has not in
any manner condoned the cruelty.
62 2006 SC 1675
63 Appeal (civil) 151 of 2004

(2) Before proceeding to grant any relief under this Act, it shall be the duty of the
court in the first instance, in every case where it is possible so to do
consistently with the nature and circumstances of the case, to make every
endeavour to bring about a reconciliation between the parties: [Provided that
nothing contained in this sub-section shall apply to any proceeding wherein
relief is sought on any of the grounds specified in clause (ii), clause (iii), clause
(iv), clause (v), clause (vi) or clause (vii) of sub-section (1) of section 13.
2. In the instant case, the respondent obtained the divorce decree on the ground of
desertion but his acts themselves were of the nature of desertion ( constructive ) and
cruelty. Thus he cannot take the same defence for himself.

PRAYER
In the light of the facts stated, issues raised, authorities cited and pleadings advanced, the
Counsel for the Appellant humbly prays that Hon’ble Court be pleased to adjudge, hold and
declare:
• That the appeal application filed by the Appellant is maintainable in the court of
law and the delay be condoned.
• That the ex-parte divorce decree passed by the Family Court to be set aside.
• That adequate compensation to be granted to the Appellant for the suffering due
to the constructive desertion and mental cruelty. 
Any other order as it deems fit in the interest of equity, justice and good conscience.
For This Act of Kindness, the counsel for Appellant be Duty Bound Forever Pray.
Date: Sd/-
Place: (Counsel for Appellant)

Before: Roll Number - 2016LJA148

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THE HON’BLE HIGH COURT

CIVIL APPEAL NO. ____ OF 2020

UNDER SECTION 13(ia) OF HINDU MARRIAGE ACT,1955

IN THE MATTER CONCERNING APPEAL, EX PARTE DECREE

MEMORIAL ON BEHALF OF APPELLANT

• Books and Lexicons………………………………………………7

[1] WHETHER THE APPEAL IS MAINTAINABLE?

[1.1] Definition of Appeal………………………………….…………13

[1.2] Sufficient cause for the delay in filing the appeal……….……14

[1.3] Period of delay is not the criteria ………………………..……16

[1.4] Second Marriage…………………………………………….…17

[2] WHETHER THE EX-PARTE DECREE COULD BE SET ASIDE?

[2.2] Remedies of Ex-Parte………………………………….………19

[2.3] Violation of Principles of Natural Justice ……………………22

[3] WHETHER THERE WAS DESERTION AND CRUELTY?

[3.1] Meaning of Desertion……………………………………….…29

[3.2] Factum and Animus……………………………………………30

[3.3] Constructive Desertion……………………………..…………31

[3.4] Meaning of Cruelty……………………………………………33

[3.5] Mental Cruelty…………………………………………………35

[3.6] Section 23 of Hindu Marriage Act, 1955……………..………37

MEMORIAL ON BEHALF OF APPELLANT Page 3

MEMORIAL ON BEHALF OF APPELLANT Page 4

• CASE LAWS CITED :

6. Municipal Corporation vs Voltas Limited And Etc., AIR 1995 Guj 29

7. N. Balakrishnan vs. M. Krishnamurthy, (1998)7 SCC 123

10. Prem Parkash Gupta vs Asha Rani, (1991) 99 PLR 282

11. Bhanu Kumar Jain v. Archana Kumar, (2005) I SCC 787

12. Mohd. Iqbal v. K. Jagadeshwar Rao, 1991 (1) ALT 58

14. Ajudhia Prasad v. Balmukund ILR, (1866) 8 All 354 (FB)

MEMORIAL ON BEHALF OF APPELLANT Page 5

18. Krishan v Smt. Sumitra, I (2003) DMC 731

20. Vijay Kumar vs Shanti Dev,i CIVIL APPEAL NO.2062 OF 2009

22. Bipin Chander Jaisinghbhai Shah vs Prabhawati, 1957 AIR 176

23. Lachman Utamchand Kirpalani vs. Meena, 1964 AIR 40

26. Julmi Devi vs Ravi Kumar, (2006) DMC 210

27. Lang v Lang, 1965 AC 402

28. Teerth Ram vs Smt. Parvati Dev,i AIR 1995 Raj 86

30. Bipin Chander Jaisinghbhai Shah vs Prabhawati, 1957 AIR 176

31. Russel vs Russel, (1897) AC 395

33. Savitri Pandey vs Prem Chandra Pandey, (2002) 2 SCC 73

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36. Naveen Kohli vs Neelu Kohli, 2006 SC 1675

37. Samar Ghosh v. Jaya Ghosh, Appeal (civil) 151 of 2004

S. No. NAME OF BOOK

2. The Code of Civil Procedure, 1908

3. The Hindu Marriage Act, 1955

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1 Section 96 : Appeal from original decree

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Constant Taunts and Insulting Remarks

Ugly Turn in the Marriage

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Ex-parte Judicial Proceedings

Appeal against the Ex-parte Decree

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ISSUE I: WHETHER THE APPEAL IS MAINTAINABLE?

ISSUE II: WHETHER THE EX-PARTE DECREE COULD BE SET ASIDE?

ISSUE III: WHETHER THERE WAS DESERTION AND CRUELTY ?

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ISSUE I: WHETHER THE APPEAL IS MAINTAINABLE?

[2] WHETHER THE EX-PARTE DECREE COULD BE SET ASIDE? 

(i) the summons was not duly served, or  

22 ILR (1866) 8 All 354 (FB) 