TEAM:

5R

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BBA LLB (IV Sem) 2017-18

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BEFORE THE HON’BLE COURT OF __________

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SANJANA (PETITIONER)

v.

ASHOK (RESPONDENT)

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ON SUBMISSION TO THE REGISTRY OF THE COURT

OF THE HON’OBLE COURT

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MEMORIAL FOR THE RESPONDENT – ASHOK

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___________________________TABLE OF CONTENTS____________________________

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1. LIST OF SOURCES……………………………………………3

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2. STATEMENT OF JURISDICTION…………….……………..4

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3. LIST OF ABBREVIATIONS……………………………………5

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4. STATEMENT OF FACTS…………………………………….6-7
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5. STATEMENT OF ISSUES………………………………………8

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6. SUMMARY OF ARGUMENTS…………………………………9

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7. ARGUMENTS ADVANCED………………………………..09-15

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8. PRAYER………………………………………………………….16

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_____________________________LIST OF SOURCES______________________________

S. No. Statues
1 Hindu Marriage Act, 1955
2 The Limitation Act , 1963

BOOKS REFERRED
1.Diwan, Dr. Paras(2017) 23rdEdition, “Family Law” Allahabad Law Agency.

2.Prof Kusum, “ Family Law” LexisNexis

S.NO. LIST OF CASES

1 Adhyatma bhattar alwar v. S Adhyatma Bhattar svri, (2002) 1 SCC 308
2 Harjeet Singh v. Guddi, 1987 WLN UC 225
3 Raja Sundari v. Suresh Kumar, (2014) 2 SCC, 601
4 Savitri Panday v. Premchand Panday (2002) 2 SCC 73
5 Smt. Shimla Devi v. Kiran Kumar, (1994) 3 WLC 519
6 Surendra Kumar v. Kiran Devi, A.I.R. 1997 RAJASTHAN 63
7 Tejinder Kaur v.Gurmit Singh, 1988 SCR (2) 1098 , 1988 SCC (2) 90
8 Vijaylakshmi v. Kannappan, 2010 (2) CTC 654
9 Vimal Kanta v. J.M. Kohli, 176 (2011) DLT 527

MISCELLANEOUS
• https://indiankanoon.org/doc/130314186/

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_____________________________________________________________________________

STATEMENT OF JURISDICTION

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Parties to the present case are residing & working for as well as the cause of action arose within the
jurisdiction of this Honorable court, therefore this Honorable court has jurisdiction to decide the case.

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__________________________________________________________________________________________
LIST OF ABBREVIATIONS
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1. HMA HINDU MARRIAGE ACT 1955

2. v. VERSUS

3. ILA INDIAN LIMITATION ACT 1963

4. Sec. SECTION

5. SC SUPREME COURT

6. i.e. THAT IS

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_____________________________________________________________________________

STATEMENT OF FACTS

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1.) Mr. Ashok, a Hindu by religion married Miss. Sanjana on 17th November, 2011 as per Hindu rituals. Thereafter
they resided in the matrimonial home with the parents of Mr. Ashok. Mr. Ashok’s mother was an orthodox female
and had high belief in mythology and in Hindu God. She had firm belief that to attain Moksha, 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.

2.) Miss. Sanjana delivered a baby girl on 9th April, 2013 and thereafter differences arose between them. 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. 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.

3.) Finally on 22ndDecember, 2013 Sanjana, frustrated with the constant bickering and inability of her husband to
change residence, decided to leave the matrimonial house with her daughter and return to her parent’s house.

4.) Ashok visited Sanjana’s house several times. However never found her at home. He could never even visit his
daughter because Sanjana was never available. Finally, on 2nd January 2016, Ashok frustrated with Sanjana, filed
for divorce u/s 13 of the Hindu Marriage Act alleging desertion by his wife. The summons was 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.

5.) The petition was heard ex parte and on the basis of evidence adduced by Ashok, the family court granted
divorce to the husband on 16thSeptember, 2016. The copy of the order was sent by Ashok to Sanjana on the
address provided.

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6.) On 25th February, 2017, Ashok married Miss Pooja, a Hindu by religion. Pooja conceived Ashok’s child and
was due for delivery on 13th December, 2017. Meanwhile, one of Sanjana’s relative discovered the fact of Ashok’s
marriage with Pooja and told Mrs. Sanjana about the same on 17th April, 2017. Accordingly Mrs. Sanjana filed
an application on 3rd May, 2017 before the High Court for setting aside the exparte decree passed by the Family
Court. She stated that she was unaware of the proceedings as the summons was served on the address on which
she was not residing. She also stated that her parents moved to a new house and accordingly, she also went to the
new house. Furthermore, she also contended that she never had the intention to desert Ashok but only wanted to
teach his mother a lesson. She argued that she was frustrated with the constant remarks by Ashok’s mother and
hence decided to leave the matrimonial house but never desired to sever the matrimonial bond.

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_____________________________________________________________________________

STATEMENT OF ISSUES

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ISSUE I: Whether there was desertion by the petitioner ?

ISSUE II: Should the exparte decree be set aside ?

ISSUE III: Whether the second marriage of the respondent be declared void ?

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_____________________________________________________________________________

SUMMARY OF THE ARGUMENTS

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ISSUE I: WHETHER THERE WAS DESERTION BY THE PETITIONER?

There was desertion on the part of the petitioner because for desertion to take place it must have lasted for atleast
2 years and continue until the filing of the divorce petition . Also there was no reasonable cause in which the
petitioner left the house and also the petitioner did not maintain any sort of communication with the respondent.

ISSUE II:SHOULD THE EXPARTE DECREE SET ASIDE ?

The exparte decree should not be set aside as per Article 123 of ILA . As per this section the appeal period for
an exparte decree is 30 days from the date of passing the decree which in this case has expired and also setting
aside of exparte decree will affect the 3rd party interest .

ISSUE III:WHETHER THE SECOND MARRIAGE OF THE RESPONDENT BE

DECLARED VOID ?

The second marriage of the respondent should not be declared void it is valid marriage as it is contracted after 90
days as mentioned under sec. 28 of HMA.

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_____________________________________________________________________________

__________________________ARGUMENTS ADVANCED__________________________

1. WHETHER THERE WAS DESERTION BY THE PETITIONER

1. The respondent most humbly submits that the marriage was solemnized on 17-11-2011 according to Hindu
rites and ceremonies.

2. They resided in matrimonial home after getting married but , Mrs. Sanjana, the petitioner left her matrimonial
house with her daughter without reasonable cause on 22-12-13.

3. As per the facts , Mr. Ashok visited Sanjana’s house several times, but could never meet his daughter and
Sanjana as they were never available, from which it is evident that she had an intention to desert the respondent
and it proves (animus deserendi) .

4. Living together is the essence of marriage , living apart is its negation when one spouse leaves or abandons the
other without that other’s consent and without a reasonable cause, it constitutes desertion .

5. Hence, on 2nd January, 2016, i.e. 2 years and 10 days after the petitioner left her matrimonial home and failed
to have any sort of contact or communication with the respondent , the respondent being frustrated with his wife
filed for divorce under sec.13 of the HMA1 alleging desertion by the petitioner .

6. According to Sec.13 (1b) of the HMA, a petition may be present by either of the party to a marriage by a decree
of divorce on the ground that the other party .“has deserted the petitioner for a continuous period of not less than
2 years immediately preceding the presentation of the petition”.

7. Since the petition for dissolution of marriage by a decree of divorce on the ground of under sec.13(1b) of the
HMA, 1955 was filed after 2 years and 10 days which fulfills the condition that the other party must have deserted
the petition for divorce for a “continuous period of not less than two years immediately preceding the presentation
of the petition”, the petitioner is therefore liable for desertion.

8. In Vimal Kanta v. J.M. Kohli2, a learned Judge of the Delhi High Court held that desertion is a matter of
inference to be drawn from the facts and circumstances of each case and that desertion commences when the facts
of separation and the animus deserendi co-exist. The learned Judge of the Delhi High Court observed in that case

1
Hindu Marriage Act, 1955

2
176 (2011) DLT 527
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that once the desertion is established there is no obligation on the deserted spouse to appeal to the deserting spouse
to change her or his mind and the circumstance that the deserted spouse makes no efforts to take steps to effect a
reconciliation with the deserting spouse does not debar the deserted, spouse from obtaining the relief of judicial
separation after the end of the statutory period of two years. It was observed in that case that there was no statement
by the wife that they have ever cohabited together within two years immediately before the filing of the petition
and that it was clear from the evidence that the wife was living with her parents in their house against the wishes
and without the consent of the husband.

8. Also, the contentions of the petitioner on filing an appeal on 3rd may , 2017 before the High Court, that she
never had the intention to desert her former husband, but only wanted to teach his mother a lesson and she decided
to leave the matrimonial home, but never desired to server the matrimonial bond are all baseless and meaningless
now because, of she really never intended to desert her husband, she would have sort at least some way to maintain
some kind of communication with her husband and could have very reasonably explained him the reason for
leaving the matrimonial house. But again, she failed to do so for a long period of 2 years and 10 days and even
after which clearly brings her intentions to light of deserting her husband who indeed several times tried to
approach her.

9. In Savitri panday v. Premchand panday3 it was held that “ for the office of desertion so far as the deserting
spouse is concerned: two essential conditions must be there namely –

1. The factum of seperation.

2. The intention to bring cohabitation permanently to an end ( animus deserendi ) similarly two elements are
essential so far as the deserted spouse is concerned

1. The absence of consent

2. Absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form they necessary
intention aforesaid : in our case both the essential conditions for desertion are present .

10. In Adhyatma bhattar alwar v. S Adhyatma Bhattar svri4 it was held that :

"The clause lays down the rule that desertion to amount to a matrimonial offence must be for a continuous period
of not less than two years immediately proceeding the presentation of the petition. This clause has to be read with
the Explanation. The Explanation has widened the definition of desertion to include 'willful neglect' of the

3
(2002) 2 SCC 73
4
(2002) 1 SCC 308
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petitioning spouse by the respondent. It status that to amount to a matrimonial offence desertion must be without
reasonable cause and without the consent or against the wish of the petitioner.

11. Hence, the leaving of the matrimonial home and the non-communication by the petitioner , definitely accounts
desertion and is a valid ground for divorce Under sec.13(1b) of the HMA, 1955.

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2: SHOULD THE EXPARTE DECREE BE SET ASIDE ?

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1. The respondent respectfully submits that the exparte decree is valid and should not be set aside

2. According to the facts of the case the respondent visited several times to the petitioner's house but could not
meet the petitioner and his daughter . Moreover the divorce was granted after the summon was served properly .
The court considered it as a good service .

3.After considering the situation that the summon was properly served then only the court proceeded with the
matter .

4.According to ILA5 article 123 " To set a decree passed exparte or to rehear an appeal decreed or heard exparte
the period of days is 30 days” ( counted from the date of decree granted ).

5.According to facts , the divorce was granted on 16-9-2016 the wife filed the petition on 3-5-2017 , so the 30
days period was over. The divorce was already granted and in the meantime much water has flown under the
bridge (in between the exparte decree and the step taken by the wife to set aside the exparte decree). In the
interregnum, the husband has remarried.

6. The subsequent event that took place in the life of the husband, by which the right of a third party has intervened.
By virtue of the remarriage, now the interest of second wife has intervened.

7. In the case of Surendra Kumar v. Krian Devi6, it has been held that when there is a valid remarriage and when
the right of the second wife intervenes, the petition to set aside the exparte decree cannot be allowed .

8.In Harjeet Singh v. Guddi's7 case, it was held by this Court that when second valid marriage is contracted, it is
in the interest of justice to dismiss the application for setting aside the exparte decree for divorce.

9.Again the same judgement was given in Smt. Shimla Devi v. Kiran Kumar's8 , and it was held that by contacting
a second marriage, the interest of second wife intervenes.

5
Indian Limitation Act, 1963
6
A.I.R. 1997 RAJASTHAN 63
7
1987 WLN UC 225
8
(1994) 3 WLC 519
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10. Article 123 of the ILA is applicable in this case that is only 30 days time prescribed for filing application to
set aside the ex-parte decree, to be counted from the date of decree.

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3. WHETHER THE SECOND MARRIAGE OF THE RESPONDENT BE DECLARED VOID?

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1.The respondent most humbly submits that the second marriage is valid and should not be declared void .

2.The respondent had solemnized the marriage after 90 days of appeal as required by sec. 28 of HMA, 1955
which states that :

(1) All decrees made by the court in any proceeding under this Act shall, subject to the provisions of sub-section
(3), be appealable as decrees of the court made in the exercise of its original civil jurisdiction, and every such
appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its
original civil jurisdiction.

(2) Orders made by the court in any proceeding under this Act under section 25 or section 26 shall, subject to the
provisions of sub-section (3), be appealable if they are not interim orders, and every such appeal shall lie to the
court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil
jurisdiction.

(3) There shall be no appeal under this section on the subject of costs only.

(4) Every appeal under this section shall be preferred within a 90 from the date of the decree or order.

3.The respondent had married Miss Pooja on 25-2-2017 after passing 90 days of appeal period mentioned u/s 28
of HMA, 1955

4.The exparte order was granted to him on 10-9-2016 and the copy was also sent to the petitioner .Thus he has
fulfilled his duties and abide to all the conditions mentioned under HMA, 1955 for the valid marriage under sec
5 and 15 of HMA.

5.He got divorced from the petitioner on 16-9-2016 and thus he do not have any spouse living at the time of
marriage that is a condition for a valid marriage.

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6.Also he married after the statuory period provided for appeal u/s 28 of HMA,1955 ie 25-2-2017

7.In case , Tejinder Kaur v. Gurmit Singh9, while the Supreme Court dealt with the impact of Section 15 of the
Act, it is held that the holder of decree of dissolution of marriage passed by the High Court in appeal, entitled to
remarry only after waiting 90 days

8.In a Raja Sundari v. Suresh Kumar , it was held that In the absence of appeal, the other party can solemnize the
marriage and attempt to frustrate the appeal right of the other side as appears to have been done in the instant
case. We are of the opinion that a minimum period of 90 days may be prescribed for filing the appeal against any
judgment and decree under the Act and any marriage solemnised during the aforesaid period be deemed to be
void.

9. Vijayalakshmi v. Kannappan10 it was held that if a marriage be dissolved by a decree of divorce and when there
is no right of appeal or if the time for preffering the appeal is over and if the appeal was dismissed it shall lawful
for either party to marry again .n

10. In this case the divorce was granted on 16-9-2016 , and the respondent married for the second time on 25-2-
2017 .

11. According to Section 15 of the HMA, 1955, which deals with right to remarry reads as under:

"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 been dismissed, it shall be lawful for either party to the marriage
to marry again."

it can be concluded that the respondent married for the second time after the time for appeal was completed so,
the marriage cannot be declared void.

9
1988 SCR (2) 1098 , 1988 SCC (2) 90
10
2010 (2) CTC 654
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PRAYER

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In the light of the issues raised, arguments advanced and authorities cited, the counsel for the Respondent humbly
prays that the Honourable court be pleased to adjudge, hold and declare:

•that the ex parte decree should not be set aside .

•Declare that the second marriage is not void .

And pass the order in favor of Respondent.

And for this act of kindness, the counsel for the petitioner shall duty bound forever pray.

Respectfully submitted Date: -

Team: - 5R Place: -

(Counsel for respondent )

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