TEAM CODE-19 4 RBUSL NATIONAL MOOT COURT COMPETITION, 2019 Before THE HON’BLE HIGH COURT OF DELHI CIVIL APPEAL NO___OF 2019 UNDER SECTION 13(ia)(ib) OF HINDU MARRIAGE ACT, 195: BETWEEN RITU.. -APPELLANT v. SUSHIL. -RESPOND! IN THE MATTER CONCERNING APPEAL, EX-PARTE DECREE AND DIVORCE MEMORANDUM ON BEHALF OF THE RESPONDENTTEAM CODE- 19 4™* RBUSL NATIONAL MOOT COURT COMPETITION, TABLE OF CONTENTS LIST OF ABBREVIATIONS INDEX OF AUTHORITIES. Cases... Books & Lexicons... Statutes... STATEMENT OF JURISDICTION. ISSUES PRES NTED. STATEMENTS OF FACTS. SUMMARY OF PLEADINGS. PLEADING! [1] WHETHER THE APPEAL IS MAINTANABLE? [1.1] Definition of Appeal... [1.2] Sufficient cause for the delay in filing the appeal... [1.3] Period of delay is not the criteria. [1.4] second marriage. [2] WHETHER THE EX-PARTE DECREE COULD BE SET ASIDE? [2.1] Meaning of ex-parte... [2.2] Remedies for ex-parte decree... [2.3] Sufficient cause... [2.4] Custody of Minor Daughter.. [3] WHETHER THERE WAS CRUELTY? [3.1] Meaning of Cruelty 019 MEMORANDUM ON BEHALF OF APPELLANT Page 2TEAM CODE- 19 019 4™* RBUSL NATIONAL MOOT COURT COMPETITION, [3.2] Mental Cruelty... [3.3] Section 23 of H.M.A [4] WHETHER THERE WAS DESERTION? ... [4.1] Meaning of Desertion. [4.2] Factum and Animus. [4.3] Constructive desertion. PRAYER... MEMORANDUM ON BEHALF OF APPELLANT Page 3TEAM CODE- 19 * RBUSL NATIONAL MOOT COURT COMPETITION, 2019 TABLE OF ABBREVIATIO’ ‘And All india Reporter ‘Another's Article Andhra Legal Decisions Bombay Bihar Law Journal Report Criminal Law Journal Calcutta Can not Current Tamil Nadu Cases The Code of Civil Procedure, 1908 Divorce and Matrimonial Cases Edition The High Court Honourable The Hindu Marriage Act, 1955 That is Kerala Indian Law Reporter Limited Madhya Pradesh ‘Manupatra ‘Number Others Order Page MEMORANDUM ON BEHALF OF APPELLANTTEAM CODE- 19 4™* RBUSL NATIONAL MOOT COURT COMPETITION, 2019 Patna Paragraph Publication Restitution of Conjugal Rights Rajasthan Rule Section The Supreme Court of India Supreme Court Cases Supreme Court Reporter ss Sections The IE Act The Indian Evidence Act, 1872 ws Under section Union of India Versus Volume MEMORANDUM ON BEHALF OF APPELLANTTEAM CODE- 19 * RBUSL NATIONAL MOOT COURT COMPETITION, 2019 INDEX OF AUTHORITIES CASE LAWS CITED Issue 1 Ajit Singh Thakur Singh and Ors. vs, State of Gujarat, AIR 1981 SC 733 . Shakuntala Devi Jain vs. Kuntal Kumari and Ors, AIR 1969 SC 575. Shankar Ramchandra Abhyankar vs. Krishnaji Dattatreya Bapat AIR 1970 SC 1 State of Haryana vs, Hindustan Machine Tools Limited, AIR 2015 P&H 45. .C. Lyall and Company vs. B. Union of India and Ors., (1973 ) ILRI Delhi 905. State (NCT of Delhi) vs. Ahmed Jaan, 2008 CriLJ 4355. . Lifelong Mediatech (P) Ltd. v, United India Insurance Co. Ltd., 2018 SCC OnLine Del 9559 N. Balakrishnan vs. M. Krishnamurthy, ATR 1998 SC 3222. Chandra Mohini Srivastava v. Avinash Prasad Srivastava, (1967) 1 SCR 864 the SC Issue I Chandu Lal Agarwalla v. Khalilur Rahaman, AIR 1950 PC 17. Polsani Jagannath Reddy and Anr. vs Gurram Vijaya, 1998 (4) ALD 262. Ajudhia Prasad v. Balmukund, ILR (1866) 8 All 354 (FB), 3. GP. Srivastava v. R-K. Raijada, (2000) 3 SCC $4, Diwalibai Damjibhai Bhatti and Ors, vs. Jaikumar Gopaldas Jain and Ors; AIR 1969 Bom 393. M.K. Prasad vs. P. Arumogam, AIR 2001 SC 2497. Parimal vs. Veena, AIR 2011 SC 1150 Issue HIT Pushpa Rani vs. Krishan Lal, AIR 1982 Delhi 107. Dastane v Dastane AIR 1975 SC 1534 Savitri Pandey v. Prem Chandra Pandey, AIR 2002 SC 591. Praveen Mehta vs, Inderjit Mehta, ATR 2002 SC 2582 Smt. Krishna Banerjee v. Bhanu Bikash Bandyopadhyay, AIR 2001 Cal 154, Vijayakumar Ramchandra Bhate v. Neela Vijayakumar Bhate, AIR 2003 SC 2462. Vimal Balani v, Jai Krishan Balani, (2009) ILR3Delhi295 Gangadharan vs. T-K. Thankam, AIR 1988 Ker 244. Samar Ghosh v. Jaya Ghosh, 2007(3) ALT 62 (SC). MEMORANDUM ON BEHALF OF APPELLANTTEAM CODE- 19 * RBUSL NATIONAL MOOT COURT COMPETITION, 2019 26. Vinitha Saxena v. Pankaj Pandit, (2006)3 SCC 778. > Issue IV Bipin Chander Jaisinghbhai Shah vs. Prabhawati, ATR 1957 SC 176 Lachman Utamchand Kirpalani vs. Meena, AIR 1964 SC 40, Sau Varsh Patil v. Parvin Madhukar Patil, (2209) I DMC 649 (Bom.) Ravi Kumar v. Julmidevi, (2010) 4 SCC 476. Nisha Rani vs. Sohan Singh Nehra, 237(2017) DLT 1 Bipin Chander Jaisinghbhai Shah vs. Prabhawati, Ibid. 3, Jyotish Chandra Guha vs. Meera Guha, AIR 1970 Cal 266. Bhargavkumar Pranshankar Shukla vs. Chhayaben Bhargavkumar Shukla, 11(2003) DMC 428. Rishi Raj Arora v. Chander Kanta, (1985) 2 DMC 28 (Del). NAME OF BOOKS Mulla, D-F, Mulla Hindu Law, 15th ed. Hindu Law, Sasi, GS, 1940 MULLA, Principles of Hindu Law, Vol. I, 18th Ed. 2001 The Modern Hindu Law, Paras Diwan.4" edn’ Blacks Law Dictionary Free Online Legal Dictionary 2" Ed Kusum, Family Law Lectures, Family Law I, 4" edn, 2015 ‘Halsbusry’s Laws of India: Volume 26 (New Delhi: Butterworths, 2007) The Dictionary of English Law (1972) Civil Procedure (CPC) with Limitation Act, 1963,C.K.Takwani Easter Book Co.(EBC)2016 ‘Merriam-Webster Dictionary ,1828 English Oxford Living Dictionaries, Powered by Oxford ‘Dr. Paras Diwan, Modern Hindu Law (Allahabad Law Agency, 22° edition) MEMORANDUM ON BEHALF OF APPELLANTTEAM CODE- 19 4™* RBUSL NATIONAL MOOT COURT COMPETITION, 2019 STATUTES The Limitation Act, 1963 The Code of civil Procedure, 1908 The Family Courts Act, 1984 The Hindu Marriage Act, 1955 General clauses Act, 1897 The Indian Evidence Act, 1872 The Hindu Minority and Guardianship Act, 1956 The Guardianship and Wards Act, 1890 ONLINE SOURCES www.seconline.com www.manupatrafast.com . Www. indiankanoon.org www.hindustantimes.com www Jivelaw \._hittps:/www.merriam-webster.com https://timesofindia indiatimes.com/ MEMORANDUM ON BEHALF OF APPELLANTTEAM CODE- 19 4™* RBUSL NATIONAL MOOT COURT COMPETITION, 2019 ATEMENT OF JURISDICTION The Appellant have approached the Hon’ble Court under Section 96(2) of the Code of Civil Procedure, 1908." + 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 shail 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. MEMORANDUM ON BEHALF OF APPELLANT Page 9TEAM CODE- 19 4™* RBUSL NATIONAL MOOT COURT COMPETITION, 2019 ISSUES PRESENTED ISSUE I: WHETHER THE APPEAL IS MAINTAINABLE? ISSUE II: WHETHER THE EX-PARTE DIVORCE DECREE COULD BE SET ASIDE? ISSUE II: WHETEHR THERE WAS CRUELTY? ISSUE IV: WHETHER THERE WAS DESERTION? MEMORANDUM ON BEHALF OF APPELLANT Page 10TEAM CODE- 19 4™* RBUSL NATIONAL MOOT COURT COMPETITION, 2019 STATEMENT OF FACTS *The Marriage Sushil and Ritu got married on 15! January, 2011, which took place according to the Hindu marital rituals, after which they stayed together in their matrimonial residence at Karol Bagh, Delhi. It was a happy marriage but Ritu’s mother-in-law from the very beginning had an orthodox thinking. She was of the opinion that that there must be a grandson so that her family lineage could move ahead. The relation of Sushil and Ritu was immature as not much time had passed since their marriage, they wanted to take their time before starting the family, but due to the constant and increased pressure by the mother-in-law they had to unwillingly conceive the child at that early stage. According to the said rituals, Ritu was sent to her paternal home for the delivery. *Constant Taunts and Insulting Remarks* On 15% July, 2012 Ritu gave birth to a baby girl, but instead of the happiness it became the reason of conflict between Ritu and her mother-in-law. With time these differences increased gradually which even tumed into insulting remarks for having a girl rather than a boy. She also threated to remamying her son. Frustrated and hurt due to the whole scenario, Ritu requested to move out separately, to which Sushil denied. By each passing day the mental pressure on Ritu increased, the love between their marriage also started to vanish, resulting Ritu could not agree for the sexual intercourse with Sushil, neither could she contribute in the daily household chores. *Ugly Turn in the Marriage; Some fatal efforts* The situation worsened even more when Sushil started coming late from the office and also started drunk abusing to Ritu. Still eager to save the relation, Ritu once again requested to move to another house, to which Sushil refused again, Due to the mental threshold, Ritu left her in laws home on 18" Octobor 2013 along with her minor daughter. After almost three months, on 10! January, 2014 Sushil visited Ritu’s patemal home. He made few efforts to contact to Ritu but considering the prior background, they were not sufficient to bring back her wife. MEMORANDUM ON BEHALF OF APPELLANTTEAM CODE- 19 4™* RBUSL NATIONAL MOOT COURT COMPETITION, 2019 “Ex-parte Judicial Proceedings* Sushil filed an application for the Restitution of Conjugal Rights under Section 9 of the Hindu Marriage Act, 1955. Summons regarding the same were sent on a wrong address knowingly by Sushil, due to which Ritu could not appear in the hearings and an ex parte decree was passed. The summons of its execution was also sent on the wrong address. Again, Sushil filed a petition under Section 13 of the Hindu Marriage Act, 1955 on 15" March, 2016. The summons regarding the same still could not be received by Ritu as they kept on going on a wrong address by Sushil. The Family Court heard the matter ex parte and granted divorce to Sushil on 26! September, 2016. Soon, after six months from the date of divorce Sushil remarried on 25 March, 2017 to a girl named Kriti, they had a child at 18 May, 2018. *Appeal against the Ex-parte Decree* As soon as Ritu got knowledge about the whole scenario through a common friend, she filed an application for the condonation of delay for filing appeal against the decree of the Family Court. After considering her reasoning that she had moved out to a new house with her parents, and that she left her matrimonial home only to teach a lesson to her mother-in-law, for which she had taken Sushil into confidence. Thus, she never had any such intentions to severe her matrimonial bond. The court condoned the delay and accepted the application. The case is now before the appellate court MEMORANDUM ON BEHALF OF APPELLANTTEAM CODE- 19 4™* RBUSL NATIONAL MOOT COURT COMPETITION, 2019 SUMMARY OF PLEADINGS ISSUE I: WHETHER THE APPEAL IS MAINTANABLE? 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 and the provisions of the Limitation Act provide that the appeal is time barred but they also provide certain exception to it ISSUE I: WHETHER THE EX-PARTE DECREE COULD BE SET ASIDE? Itis humbly submitted before the Hon'ble Court that the ex-parte decree to 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 11: WHETHER THERE WAS CRUELTY? 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. 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, thereafter the drinking and abusing by the respondent. ISSUE IV: WHETHER THERE WAS DESERTION? 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. MEMORANDUM ON BEHALF OF APPELLANTTEAM CODE- 19 4™* RBUSL NATIONAL MOOT COURT COMPETITION, 2019 PLEADINGS ISSUE I: WHETHER THE APPEAL IS MAINTAINABLE? [1.1] Definition of Appeal: 1. 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 higher court, although this right comes with a bar of limitation period but that too can be taken into consideration if a genuine and just cause could be shown for the delay in that limitation. The limitation period is a technical aspect and thus should not be aside without considering the just cause 2. Appeal as defined under the Merriam-Webster Dictionary is: “A proceeding in which a case is brought before a higher court for review of a lower court's judgment for the purpose of convincing the higher court that the lower court's judgment was incorrect. 3. 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 which the error or injustice is sought to be corrected or reversed. [1.2] Sufficient cause for the delay in filing the appe 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 seize the rightful opportunity from the aggrieved party from putting ahead his point and also could not 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 nition of Appeal by Merriam-Webster, Merriam-Webster, Since 1828. 2 Black's Law Dictionary, Definitions ofthe Terms and Phrases of American and English Jurisprudence. Ancient and Modem, Henry Campbell Black M.A.. 6 Ed MEMORANDUM ON BEHALF OF APPELLANT Page 14TEAM CODE- 19 4™* RBUSL NATIONAL MOOT COURT COMPETITION, 2019 * 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™ 2.In the case of Ajit Singh Thakur Singh and Ors. vs. State of Gujarat the SC held that “the sufficient cause must establish that because of some event or circumstance atising 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.” 3. In Shakuntala Devi Jain vs. Kuntal Kumari and Ors,‘ the SC 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.” 4. In Shankar Ramchandra Abhyankar vs. Krishnaji Dattatreya Bapat “An appeal is a process of civil law origin and removes a cause, entirely subjecting the fact as well as the law, to a review and a retrial.” 5. In the case of State of Haryana vs. Hindustan Machine Tools Limited, it was observed by the Punjab and Haryana High Court that “Section 5 of 1963 Act 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 4 Section 5, Indian Limitation Act, 1963 ® AIR 1981 SC 733, © AIR 1969 SC 5 AIR 2015 P&H 45, MEMORANDUM ON BEHALF OF APPELLANTTEAM CODE- 19 4™* RBUSL NATIONAL MOOT COURT COMPETITION, 2019 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.” 6. In © Lyall and Company vs. B. Union of India and Ors.. it was held that “While considering the question of condensation of delay under section 5 of the Limitation Act, it would be immaterial and even irrelevant to invoke general consideration of diligence of parties and that what the party was to show was as to why he did not file the proceedings concerned on the last date of limitation prescribed and this would inevitably mean that the party will have to show sufficient cause not only for not filing the proceedings on the last day of limitation but to explain the delay made thereafter day by day 7. In State (NCT of Delhi) vs. Ahmed Jaan. ° the 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. [1.3] Period of delay is not the criteria: 1, In the case of Lifelong Mediatech (P) Ltd. v. United India Insurance Co. Ltd., 2018 SCC OnLine Del 9559,"° it was held that “While considering the application seeking condonation of delay, the period of delay is not the criteria, A short delay may not be condoned in absence of an acceptable explanation while a large delay may be condoned if the explanation is satistactory.” 2. In the case of N. Balakrishnan vs. M. Krishnamurthy,” it was held 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 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 the instant case we can see that the appellant had a sufficient cause due to which she could not approach the appellate cout within the limitation period. The respondent knowingly posted the summons for the appellant on the wrong address, so that the appellant 8 (1973 ) ILRI Delhi 905. $2008 CriLJ 4355, " Period of delay is not the criteria while considering application under Section $ of Limitation Act, Devika, (June 28, 2018). AIR 1998 SC 3222, MEMORANDUM ON BEHALF OF APPELLANTTEAM CODE- 19 4™* RBUSL NATIONAL MOOT COURT COMPETITION, 2019 could stay out of the proceedings and the respondent could easily get out of the whole process as soon as possible and get married again. Thus, the appellant could not appear in any of the proceedings before the Family Court, i. neither the proceeding under Section 9", nor she could appear for the proceedings under Section 13", and the decree for both of them were passed ex-parte. It is only when the appellant got to know about everything through a common friend then only she had approached the Honourable Court. [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 the validity of the second marriage. Even though the respondent accrued his right of remarrying afer the grant of divorce under the ex parte decree, but for doing that as well he had to wait for a period of one year from the date of the said decree till the time the right of appeal of the aggrieved party exists. Thus, the validity of the re-marriage before the expiry of one year comes under question. 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.” The provision clearly states that the second 3. Justice L. Nageswara Rao had observed that: “If there is no right of appeal, the decree of divorce remains final and that either party to the marriage is free to marry again. In case an appeal is presented, any marriage before dismissal of the appeal shall not be lawful. The object of the provision is to provide protection to the person who has filed an appeal against the decree of dissolution of marriage and to ensure that the said appeal is not frustrated. The purpose of Section 15 of the Act is to avert complications that would arise due to a second marriage during the pendency of the appeal, in case the decree of dissolution of marriage is " Section 9; Restitution of Conjugal Rights, the Hindu Marriage Act, 1955. "Section 13, Divorce, the Hindu Marriage Act, 1955. ' Section 15, the Hindu Marriage Act, 1955 MEMORANDUM ON BEHALF OF APPELLANTTEAM CODE- 19 4™* RBUSL NATIONAL MOOT COURT COMPETITION, 2019 reversed, The protection that is afforded by Section 15 is primarily to a person who is contesting the decree of divorce.” 4. In Chandra Mohini Srivastava v. Avinash Prasad Srivastava, (1967) 1 SCR 864 the SC held that “remarriage of a spouse who obtained ex-parte divorce decree would not render the application filed by opposite spouse for setting aside the ex-parte decree, as infructuous and the said application must be considered on its own merits notwithstanding the remarriage.” 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 some genuine causes that 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.” 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.” 3. Amex parte decree is a decree passed in the absence of the defendant (in absenti). 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."* 4, 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. 'S Restriction For Remarriage Under Hindu Marriage Act Primarily Applicable For Parties Contesting The Decree Of Divorce: SC, Ashok Kini, (24 Aug 2018 9:39 PM), 'S Application to set aside ex-parte divorce decree by a spouse is not rendered infructuous by remarriage of | ‘opposite spouse, Devika, The SCC Online Blog. (October 28, 2018), "Chandu Lal Agarwalla v. Khalilur Rahaman, AIR 1950 PC 17, Remedies Against An Ex-parte Decree, Sattwik Shekhar, Manupatra Information Solutions Pvt. Ltd. 2019 MEMORANDUM ON BEHALF OF APPELLANT Page 18TEAM CODE- 19 4™* RBUSL NATIONAL MOOT COURT COMPETITION, 2019 [2.2] Remedies for ex-parte decree: 1, Appeal fiom 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 to the Court authorized 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].]°° 2, Setting aside decree ex parte against defendants 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 (i) 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. 3. These remedies are concurrent and approaching one of the remedies does not mean that the other remedy would be derogated. In the case of Polsani Jagannath Reddy and Anr. vs Gurram Vijaya," the Madras High Court observed that “As regards the right of these ® Section 2 (2), the Code of Civil Procedure, 1908, “Decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall net includea) any adjudication from which an ‘appeal lies as an appeal from an order, or (b) any order of dismissal for default. ® Section 96, the Code of Civil Procedure, 1908. 2 1998 (4) ALD 262. MEMORANDUM ON BEHALF OF APPELLANTTEAM CODE- 19 4™* RBUSL NATIONAL MOOT COURT COMPETITION, 2019 remedies are concemed, 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.” Similar point was adjudged in the case of Ajudhia Prasad v. Batmukund,? which stated 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] Sufficient Cause: 1. 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.”? 2.0. IX, R. 6 states that- * 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 heard ex parte, (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.2* 3. Thus, this provision expressly states that till the time it is not proved that the summons were duly served, the suit cannot be heard ex-parte. In the instant case, the chain of events show a clear indication that the respondent was in a hurry to get away with his relation and be free so that he could remarry and have a son to fulfil his mother’s desire. The appellant had to ILR (1866) § All 354 (FB), Civil Procedure with Limitation Act, 1963, CX. Takwani, 8 Ed,, EBC, p.275 % Order IX, Rie 6, the Code of Civil Procedure, 1908, MEMORANDUM ON BEHALF OF APPELLANTTEAM CODE- 19 4™* RBUSL NATIONAL MOOT COURT COMPETITION, 2019 leave her matrimonial home due to the sufferings she had to go through, but she never had the intention to severe her marriage 4, The appellant had shifted to a new place with her parents about whom the respondent knew, and then too he knowingly sent the summons on the previous residential address so that he could escape his legal liability and transfer the blame on the appellant. 5. In the case of GP. Srivastava v. R.K. Raijada?® the court held that “Under Order 9 Rule 13 CP.C. an ex-parte decree passed against a defendant can be set aside upon satisfaction of the Coust 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.” It was further observed that “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 part 6. In the case of Diwalibai Damjibhai Bhatti and Ors. vs. Jaikumar Gopaldas Jain and Ors “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.” (K. Prasad vs. P. Arumogam,” the apex court held that “In any ease in which a decree is passed ex-parte, the defendant can apply to the court by which the decree was passed for an order to set it aside and if he satisfies the court 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.” 8. In the case of Parimal vs. Veena. it was observed by the Leamed Judges that "Sufficient Cause" is an expression which has been used in large number of Statutes. The meaning of the word "sufficient” is "adequate" or "enough", in as much as may be necessary to answer the purpose intended, Therefore, word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts 2000) 3 SCC 54 AIR 1969 Bom 393, 2 AIR 2001 SC 2497, 28 AIR 2011 SC 1150. MEMORANDUM ON BEHALF OF APPELLANTTEAM CODE- 19 * RBUSL NATIONAL MOOT COURT COMPETITION, 2019 and circumstances existing in a case and duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been “not acting diligently" or "remaining inactive”, [2.4] Custody of Minor Daught 1. In the instant case the daughter of the appellant and respondent is a minor and thus the Family Court while passing the decree should have taken care of the interests of the minor child as well. Here in the present facts neither the respondent showed any interest in obtaining the guardianship of the daughter nor the subordinate court took this issue in consideration. The respondent's act show that he wanted to get away with his previous relation and the liabilities. Thus, he remarried so that his mother’s dream of having a grandson could be fulfilled. 2. Section 26 of the Hindu Marriage Act, 1955 states that “In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made.””? 3. Section 17 of the Guardianship Act states as: Matters to be considered by the Court in appointing guardian® ® Section 26, the Hindu Marriage Act, 1955. %° section 4(b), the Hindu Minority and Guardianship Act, 1956: (b) “guardian” means a person having the care of the person of a minor or of his property or of both his person and property, and includes— {i) a natural guardian, {il)a guardian appointed by the will of the minor's father or mother, (ii) a guardian appointed or declared by a court, and {iv)a person empowered to act as such by or under any enactment relating to any court of wards; MEMORANDUM ON BEHALF OF APPELLANTTEAM CODE- 19 4™* RBUSL NATIONAL MOOT COURT COMPETITION, 2019 (1) In appointing or declaring the guardian of a minor, the Coust shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. (2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his neamess of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property (3) If minor is old enough to form an intelligent preference, the Court may consider that preference. (5) The Court shall not appoint or declare any person to be a guardian against his will.” 4, Natural guardians of a Hindu minor.- The natural guardians of a Hindu, minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are~ (a) in the case of a boy or an unmarried girl-the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother; (b) in the case of an illegitimate boy or an illegitimate unmarried girl-the mother, and after her, the father; (c) in the case of a married girl-the husband; Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this seetion- (i) if he has ceased to be a Hindu, or (ii) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi) Explanation.- In this section, the expressions ‘father’ and ‘mother’ do not include a stepfather and a step-mother. * Section (a), the Hindu Minority and Guardianship Act, 1956: “minor means a person who has not completed the age of eighteen years; ® Section 17, the Guardinashp and Wards Act, 1890. ® Section 6, the Hindu Minority and Guardianship Act, 1956. MEMORANDUM ON BEHALF OF APPELLANTTEAM CODE- 19 4™* RBUSL NATIONAL MOOT COURT COMPETITION, 2019 ISSUE III: WHETHER THERE WAS CRUELTY? [3.1] 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. Cruelty may be defined as “Behaviour which causes physical or mental harm to another, especially a spouse, whether intentionally or not.” 2. In Pushpa Rani vs. Krishan Lal,*Cruelty is wilful and unjustified conduct of such a character as to cause danger to life, limb or health bodily or mental , as to give rise to reasonable apprehension of such a danger. The question in all such cases is whether the acts or conduct of the party charged, were cruel according to the ordinary sense of that word. 3. In Dastane v Dastane;* the Court observed that “any inquiry covered by that provision had to be whether the conduct charged as 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 to live with the respondent.” 4, In Savitri Pandey v. Prem Chandra Pandey.” Cruelty may be physical or mental. Mental cruelty is the conduct of other sponse 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 harmfal or injurious for the petitioner to live with the other party. 5. In Praveen Meia vs. Inderjit Mehta,® the court cited the observation form the Mulla Hindu Law, which stated 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 cause even more grievous injury and create in the mind of the injured spouse reasonable apprehension that if will be harmful or unsafe to live with the other party.” + English Oxford Living Dictionaries, Powered by Oxford, bitps://en.oxforddictionaries.com/definition/cruelty 35 AIR1982Delbil107. °© AIR 1975 SC 1534, 27 AIR 2002 SC 591 38 AIR20028C2582, MEMORANDUM ON BEHALF OF APPELLANTTEAM CODE- 19 4™* RBUSL NATIONAL MOOT COURT COMPETITION, 2019 6. In the case of Smt. Krishna Banerjee v. Bhanu Bikash Bandyopadhyay.” held that “The refusal to attend the domestic work etc. cannot be in the ordinary circumstances, an instance of eruelty either mental or physical.” [3.2] Mental Cruelty: 1. 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.#° Here, in the present case the appellant had to suffer mental agony from the very beginning of her marriage, her mother-in- aw used to pass insulting remarks and constant taunts towards the appellant. 2. In Vijayakumar Ramchandra Bhate v. Neela Vijayakumar Bhate.*' the 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.” 3. The expression ‘mental cruelty’ in 24 American Jurisprudence 24, has been described hereunder: "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 conduet 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. 8 AIR 2001 Cal 154, * Halsbury’s Laws of England [Vol.13, 4th Edition, para 1269], # AIR 2003 SC 2462 Vimal Balani v. Jai Krishan Balani, (2009) ILR3 Delhi 295, MEMORANDUM ON BEHALF OF APPELLANTTEAM CODE- 19 4™* RBUSL NATIONAL MOOT COURT COMPETITION, 2019 4. ln Gangadharan vs. T.K. Thankan> 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. 5S. In the case of Samar Ghosh v. Jaya Ghosh, the apex court enumerated certain points regarding mental eruelty; 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 tortur discommode or render miserable life of the spouse. 6. “An alcoholic husband is a nuisance but even his drinking habit, due to which he turns up at home late in the night, amounts to mental cruelty to the wife.“ 7. In Vinitha Saxena v. Pankaj Pandit, held that “what constitutes mental cruelty 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 deleterious effect of it in the mental attitude, necessary for maintaining a conducive matrimonial home.” 8. 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 acts of the # AIR 1998 Ker 244, + 2007(3) ALT 62 (SC), * Hubby coming home drunk amounts to mental cruelty, DNA, Mustafa Plumber, (Jul 18, 2013, 10:40 AM IsT) + (2006)3 SCC 778. MEMORANDUM ON BEHALF OF APPELLANT Page 26TEAM CODE- 19 4™* RBUSL NATIONAL MOOT COURT COMPETITION, 2019 respondent husband who started coming late from the office drunk and used to abuse the appellant as well. [3.3] Section 23 of H.M.A.: 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 eruelty. (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 13.7 2. In the instant case the acts of the respondent obtained the divorce decree on the ground of cruelty and desertion but his acts themselves of the nature of cruelty and thus he cannot take the same defence for himself. ISSUE IV: WHETHER THERE WAS DESERTION? [4.1] 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 *” Section 23, the Hindu Marriage Act, 1955. MEMORANDUM ON BEHALF OF APPELLANTTEAM CODE- 19 4™* RBUSL NATIONAL MOOT COURT COMPETITION, 2019 that the desertion was done by the appellant, rather in reality it was their contribution which led to that happening 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 an end without 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.“* 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 principal applicable to all cases.” [4.2] Factum and Animus: 1. In Bipin Chander Jaisinghbhai Shah vs. Prabhawati,*For the offence of desertion, 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 (aninmus deserendi). 2. In Lachman Uramchand Kirpalani vs. Meena,*ihe court held that “It is settled law that the burden of proving desertion — (i) the "factum" as well as (ii) 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 eause.” + Rayden and Jackson on Divorce and Family Matters, 16% Ed. p. 128. * Halsbury's Laws of England (3rd Edn.) Vol. 12, pp. 241 to 243 ® AIR 1987 SC 176, 5. AIR 1964 SC 40, MEMORANDUM ON BEHALF OF APPELLANTTEAM CODE- 19 4™* RBUSL NATIONAL MOOT COURT COMPETITION, 2019 3. In the case of Sau Varsh Patil v. Parvin Madhukar Patit, (2209) 1 DMC 649 (Bom), the court held that mere separate residence by one party, per se, would not amount to desertion, the other party needs to establish animus deserdendi.‘? 4. In the case of Ravi Kumar v. Jutmidevi, “the apex court observed that “the party alleging desertion must not only prove that the other spouse was living separately but also must prove that there is an animus deserendi on the part of the wife and the husband must prove that he hhas not conducted himself in a way which furnishes reasonable cause for the wife to stay away from the matrimonial home.” [4.3] Constructive Desertion: 1. In Nisha Rani vs. Sohan Singh Nehra.* held that “The 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 the other to leave, the desertion could be by such conduct of other spouse and compelled to live separately.” 2. In Bipin Chander Jaisinghbhai Shah vs. Prabhawati; the 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.” 3. In Jyotish Chandra Guha vs. Meera Guha,® the court observed that "Assuming that Injury or apprehended injury to health is found, the Court has then to decide whether the sum total of the reprehensible conduct was cruel, That depends on whether the cumulative conduct was sufficiently serious to say that from a reasonable person's point of view after a consideration of any excuse which this respondent might have in the cireumstances, the conduct is such that the petitioner ought not to be called upon to endure it.” 2 Family Law-I, Prof. Kusum, 4" Ed,, Lexis Nexis, p. 89. 3 (2010) 4 SCC 476. 937 (2017) DLTL ® Ibid. 5 AIR 1970 Cal 266, MEMORANDUM ON BEHALF OF APPELLANTTEAM CODE- 19 4™* RBUSL NATIONAL MOOT COURT COMPETITION, 2019 4. In the case of Bhargavkumar Pranshankar Shukla vs. Chhayaben Bhargavkumar Shukla. the High Court of Gujarat held that “The essence of desertion is the forsaking and abandonment of one spouse by the other without reasonable cause and without the consent or against the will of the other. Accordingly, desertion under the Hindu Law is a withdrawal of a party from the marital home does not by itself constitute desertion by that party. It is the party who by his or her conduct brings cohabitation to an end that is guilty of desertion.” 5. The elements of desertion are as follows- (a) the fact of separation (factum deserdendi), and (b) the intention to desert (animus deserdendi). The further elements are : (i) without any reasonable cause. (i) 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: (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. 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 conduet 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.** 6. Inthe case of Rishi Raj Arora v. Chander Kanta.® the coutt held that “Desertion is not to be tested by merely ascertaining which party left the matrimonial home. If one spouse is forced by the conduct of the other to leave the home, the spouse responsible for driving out is guilty of desertion and not the one who departs.” 112003) DMC 428. 2 Law of Marriage and Divorce, Fourth Edition by Paras Diwan, pp. 410 & 411 °8 (1985) 2 DMC 28 (Del). MEMORANDUM ON BEHALF OF APPELLANTTEAM CODE- 19 4™* RBUSL NATIONAL MOOT COURT COMPETITION, 2019 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 Coust be pleased to adjudge, hold and declare: ‘© That the appeal application filed by the Appellant is maintainable in the court of law © 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 mental cruelty and constructive desertion. Any other order as it deems fit in the interest of equity, justice and good conscience. For This Act of Kindness, the prosecution shall be Duty Bound Forever Pray. Date: Sdi- Place: (Counsel for Appellant) MEMORANDUM ON BEHALF OF APPELLANT Page 31