JAI NARAIN VYAS UNIVERSITY, JODHPUR

THE HINDU LAW

PROJECT

TOPIC:- MOOT FILE

SUBMITTED TO SUBMITTED BY
MISS CHETANA MA’AM PAWAN THANVI
19BAL50041
B.A.LLB (6THSEM)
 ACKNOWLEDGEMENT

I Would Like To Express My Special Thanks Of Gratitude To My Teacher

MISS CHETNA MA’AM She Gave Me The Golden Opportunity To Do This
Wonderful Project On The Topic MOOT FILE Which Also Helped Me In Doing
A Lot Of Research And I Come To Know So Many New Thing. I Am Really Thankful
To Them.

Secondly, I Would Also Like To Thank My Parents And Friends and there
support, valuable information, time and guidance, which helped me in completing this
task through various stages and their encouragement without which this a assignment
would not be possible.

Thank you

PAWAN THANVI
 MOOT PREPOSITION
1. Marriage of Mrs. ‘X’ and ‘Y’ was solemnized as per Hindu rituals on 25.01.2011
at Jodhpur (Rajasthan). Husband ‘Y’ is resident of Mumbai and is having business
over there. Wife shifted to Mumbai just after marriage and both started their
matrimonial home at Mumbai. After six months of marriage, dispute erupted in
between the couple and as a consequence of the same, wife left the matrimonial
home and came back to her parental home at Jodhpur. Mrs. ‘X’ lodged a criminal
case against Mr. ‘Y’ and his other family member while levelling allegations of
harassment for want of dowry and other offences on 07.07.2011.
2. Mr. ‘Y’ filed an application for Restitution of Conjugal Rights under Section 9 of
the Hindu Marriage Act at Mumbai Court on 06.07.2011. However, the notices of
the same were issued on 21.07.2011. Panchayats for amicable settlement took
place in between the families of contesting sides but did not reach to any
satisfactory conclusion.
3. The notice of Section 9 application as filed by Mr.‘Y’ were not served for quite a
long span of time. Ultimately a direction to get the notice served was issued by the
Court in Mumbai. Pursuant to that, Mr. ‘Y’ sent the notices by courier and filed the
receipt of the courier as well as sealed envelope with an endorsement of refusal to
the accept notice on 15.07.2 014. Court at Mumbai initiated ex-parte proceedings
on the basis of aforesaid material and ultimately allowed Section 9 Application of
Mr. ‘Y’ vide judgment and order dated 15.09.2014.
4. Mr. ‘Y’ preferred application under Section 13 A of Hindu Marriage Act at
Jodhpur on 16.10.2016 precisely stating that Mrs. ‘X’ did not return to
matrimonial home despite an order upon an application under Section 9 by a
competent court and so also stating that an agreement was signed between
fathers of ‘X’ & ‘Y’ for divorce as per rituals and regarding acceptance of full and
final amount of alimony by ‘X’. Mrs. ‘X’ filed reply to the petition and stated that no
notice of application of Section 9 were ever served upon her. She also averred that
the document produced as alleged agreement for divorce is a forged one and
signature of her father was procured immediately after marriage for the purpose
of mutation of land given in dowry by the father of Mrs. ‘X’ to her husband and in-
laws. It was also stated that in any eventuality such an agreement is unlawful and
thus, the same is not enforceable in law.
5. Learned Family Court allowed the application filed under Section 13A of the
Hindu Marriage Act while precisely holding that Mrs. ‘X’ did not assail the order
passed upon application filed under Section 9. Further, learned Family Court on
the basis of agreement for divorce reached at a conclusion vide judgment and
order dated 12.12.2018 that permanent alimony has been accepted by father of
Mrs. ‘X’ on her behalf and the marriage is already come to an end. Mrs. ‘X’
challenged the judgment and order dated 12.1.2.2018 in D.B.Civil Misc. Appeal
preferred under Section 19 of Family Court Act. She also preferred application
under Section 24 of the Hindu Marriage Act seeking maintenance Pendente lite.

ON BEHALF OF PETITIONER
 ISSUE PRESENTED

ISSUE 1- WHETHER THE APPEAL IS MAINTAINABLE ?

ISSUE 2- WHETHER THE EX-PARTE RESTITUTION OF CONJUGAL RIGHT
DECREE COULD BE SET ASIDE ?
ISSUE 3- WHETHER THE AGREEMENT OF DIVORCE ALIMONY WAS FORGED
DOCUMENT?
ISSUE 4- WHETHER MRS.’X’ CAN CLAIM MAINTENANCE PENDENTE LITE
UNDER SECTION 24 OF HINDU MARRIAGE ACT ?
 ARGUMENTS

ISSUE 1- WHETHER THE APPEAL IS MAINTAINABLE ?

It is humbly submitted before the Hon’ble court that the present appeal filed by
the appellant is maintainable under section 19 of Family court act 1984, as the
appeal is fulfilling all the essential ingredients of section 19 of Family court act
1984 which are required to be fulfilled in order to appeal in higher court.

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

It is humbly submitted before the Hon’ble High court that ex-parte degree can be
set aside as the appellant was not duly served with the summons and thus had no
idea about the proceedings. As the appellant is an aggrieved party who had the
right to present her side but she could not do the same due to unduly served
summons to her.

ISSUE 3- WHETHER THE AGREEMENT OF DIVORCE ALIMONY WAS FORGED ?

It is humbly submitted before the Hon’ble court that the agreement of alimony for
divorce was forged and the paper was signed without mutual consent and the sign
of father of MRS.X was procured immediately after marriage for mutation of land
given in dowry by father of MRS. X to her husband and in-laws

ISSUE 4- WHETHER MRS. X CAN CLAIM MAINTAINANCE PENDENT LITE

UNDER SECTION 24 OF HINDU MARRIAGE ACT FROM MR. Y ?
It is humbly submitted before the Hon’ble court that MRS.X can claim maintenance
pendent lite from her husband under section 24 of Hindu marriage act, as she
doesn’t have any source of income and is totally dependent upon her husband or
parents financially.
 ARGUMENTS ADVANCED
ISSUE 1- WHETHER THE APPEAL IS MAINTAINABLE
It is humbly submitted before the Hon’ble high court that the appeal filled by the
appellant wife is maintainable under section 19 of family court act 1984-
As per the section 19 of family court act , it states-
Appeal and Revision
Save as provided in sub-section (2) and notwithstanding anything contained in
the code of civil procedure , 1908 (5 of 1908) or in the code of criminal procedure,
1973 (2 of 1974) or in any other law, an appeal shall lie from every judgement, or
order, not being an interlocutory order, of a family court to high court both on
facts and on law.
No appeal shall lie from a decree or order passed by the family court with consent
of parties or from an order passed under chapter IX of code of criminal
procedure, 1973 (2 of 1974): provided that nothing in this sub section shall apply
to any appeal pending before a high court or any order passed under chapter IX of
code of criminal procedure, 1973(before the commencement of family court
amendment act 1991)
Every appeal under this section shall be preferred within a period of thirty days
from the date of judgement or order of a family court.
The high court may, on its own motion or otherwise, call for and examine of any
proceedings in which the family court situate within its jurisdiction passed an
order under chapter IX of code of criminal procedure , 1973 (2 of 1974) for the
purpose of satisfying itself as to the correctness, legality or propriety of the order,
not being an interlocutory order, and as to the regularity of such proceedings.
Except as aforesaid, No appeal or revision shall lie to any court from any
judgement, order or decree of a family court.
These above are the essential ingredients of section 19 of Family court act 1984;
and here in this case the appellant fulfil all necessary ingredients related to this
section which are as follows; 1- Here in section 19 clause 2 it states that no one
can appeal if the judgement is with mutual consent, but here in this case there was
no consent from appellant side .
2- Here in section 19 clause 3 time period is given in order to appeal against the
judgement is 30 days from the day of the judgement, But here in this case appeal
is being filled with the prescribed time period of 30 days.
Therefore it is humbly submitted that from the above point it is clear that appeal
can be filled against the judgement of subordinate court in upper court under
section 19 of family court act, 1984.

ISSUE-2 WHETHER THE EX-PARTE DEGREE CAN BE SET ASIDE ?

It is humbly submitted before the Hon’ble High court that ex-parte degree can be
set aside as the appellant was not duly served with the summons and thus had no
idea about the proceedings. As the appellant is an aggrieved party who had the
right to present her side but she could not do the same due to unduly served
summons to her.
The term ex-parte derived from the Latin word “in absenti” which literally means
decree passed when the defendant is absent. This kind of decree is neither null or
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 force of valid decree. An ex-parte decree is decree passed in
absence of defendant. Where the plaintiff appears and defendant does not appear
when the suit is called out for hearing. According to principle of natural justice
every party has right of Audi ALTERAM PARTEM, which means “right to be
heard” whenever there is dispute between two parties, both of them posses right
to put their point before the court. Under no circumstances this right could be
curtailed if parties could prove their reason behind their non appearance at time
of hearing.
REMEDIES FOR EX-PARTE DECREE-
1- An appeal may lie from an original decree passed by ex-parte.
2- No appeal shall lie from a decree passed by court with consent of parties.
3- No appeal shall lie except on a question of law from a decree in any suit of
nature of cognizable by court of small causes, when the amount or value of subject
matter of original suits does not exceed ten thousand rupees.
4- Setting aside decree ex-parte against defendant in any case in which a decree is
passed ex-parte against defendant, he may apply to court by which the decree was
passed for an order to set it aside; and if he satisfies the court that
(i) The summon was not duly served.
(ii) That he was prevented from any sufficient cause from appearing when the suit
was called on hearing.
The court shall make an order setting aside the decree as against him upon such
term as to costs, payments into court or otherwise as it thinks fit, and shall
appoint a day for proceeding with suit.
In the case of AJUDIA PRASAD VS BALMUKUND it stated that right to be heard is
one of the major rights under natural justice and if defendant has justifiable
reason due to which she could not avail her right at the time of hearing, then the
right cannot be seized if she has valid and legal justification for the same.
23.O.IX,R,6 code of civil procedure with limitation states that,
Till the last if it cannot be found out or under the circumstance of doubt if notice
was served duly or not then, the suit cannot be heard ex-parte.
Soon after leaving her matrimonial home she with her parents shifted to new
place in city due to patriarchy nature of society about whom the respondent
knew, and then too he knowingly sent summons on the previous residential
address.
In the case of G.P SRIVASTAV VS R.K.RAIJADA it was held that the decree of ex-
parte can be set aside under rule of C.P.C Order 9 rule 13, upon satisfaction of
court that either the summon was not duly served upon defendant or he was
prevented by sufficient cause.
In case of M.K PRASHAD VS P. ARUGMOGAM, The apex court held that in any
case if decree of ex-parte is passed, 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 from sufficient cause.
Therefore, it was humbly submitted before the court to set aside the decree of
restitution of conjugal right passed by bombay court.
ISSUE-3 WHETHER THE AGREEMENT OF ALIMONY FOR DIVORCE
PRESENTED WAS FORGED DOCUMENT ?
It is humbly submitted before the Hon’ble high court that the document presented
by MR. Y as the agreement of alimony decided by father of X and father of Y, The
documented presented are the forged document and the sign on the document are
procured from father of MRS X immediately after marriage for purpose of
mutation of land given in dowry by father of MRS X to her husband and in laws,
The act committed by MR.Y by producing forged document is covered under
section 463 and 464 of ipc that is forgery.
Section 463 of ipc- forgery, it states that,
Whoever makes any false document or false electronic record, or part of a
document or electronic record, with intent to cause damage or, injury, to the
public or to any person, or to support any claim or title, or to cause any person to
part with property, or to enter into express or implied contract, or with intent to
commit fraud may be committed, commits forgery.
In case of SUSHIL SURI VS CBI, the basic element of forgery,
1- Making a false document or part of it.
2- Such making should be with such intention as is specified in the section,
(i) To public
(ii) Any person
(iii) To claim any person to part
(iv) To cause any person to enter into an express and implied contract
(v) To commit or that fraud may be committed.
Section 464, of IPC states,
A person is said to make a false document or false electronic record-
1- Who dishonestly or fraudulently,
(i) Make sign , seals, execute a document
(ii) Makes or transmit any electronic record
(iii) Affixes any electronic record
(iv) Makes any mark denoting the execution of a document or authenticity of the
electronic record.
2- who, without lawful authority, dishonestly or fraudulently, by cancellation or
otherwise , alter a document or an electronic record in any material.
3- The making of false document in the name of other person, intending it to be
believed that the document was made by a that person, or in the name of deceased
person, intending it to believed that the document was made by person in his
lifetime, may amount to forgery.
As the above facts states, The action committed by MR. Y by producing forged
document before the court in order to gain profit is an offence under IPC,
therefore it is humbly submitted before the Hon’ble court that the document of
alimony produced by MR.Y was forged document and the sign was taken without
the knowledge of MRS. X and her father, and therefore it is humbly submitted to
set aside the judgement of Family court regarding the alimony agreement.

ISSUE- 4 WHETHER MRS.X CAN CLAIM MAINTANENCE PENDENT LITE FROM

MR.Y UNDER SECTION 24 OF HINDU MARRIAGE ACT ?
It is humbly submitted before the Hon’ble high court that MRS X can claim
maintenance pendent lite from MR.Y under section 24 of Hindu marriage act, As
MRS.X is a house wife and is not a earning woman, financially she is dependant
upon her husband and parents and she cant afford her personal expenses on her
own and is reliable on her husband or parents, here all the costs of court cases
incurred her to much financial loss and she can’t afford to bear all the loses by
herself and as she is reliable on her husband for the personal expenses, therefore
she can claim the maintenance pendent lite from her husband under section 24 of
hindu marriage act 1955 which states;
Section 24 of Hindu marriage act 1955-
Maintenance pendent lite and expenses of proceedings:
Where in any proceeding under this act it appears to the court that either the wife
or the husband, as the case may be , has no independent income sufficient for her
or his support and the necessary expenses of the proceedings, it may, on the
application of wife or the husband, order the respondent to pay the petitioner the
expenses of the proceedings, and monthly during the proceeding such sum as,
having regard to the petitioner’s own income and income of respondent, and it
may seem to the court be reasonable.
Provided that application for the payment of expenses of proceeding and such
monthly sum during the proceeding, shall, as far as possible be dispossed of
within sixty days from date of service of notice of wife or the husband, as the case
may be.
In the case of, JASBIR KAUR VS DISTRICT JUDGE DEHRADUN, supreme court
states that provision under section 24 cannot be given restricted meaning; the
wife’s right to claim maintenance pendente lite would include her own
maintenance and that of her unmarried daughter living with her.
Therefore as per above facts and supreme court ruling, MRS X is entitled to claim
maintenance from MR.Y under section 24 of Hindu marriage act 1955, as she is
not a earning person and is relied upon her husband to incur her personal
expenses.
Therefore it is humbly submitted before the Hon’ble high court that MRS. X is
liable for maintenance from MR.Y under section 24 of hindu marriage act.
 PRAYER
Therefore, in the light of the issues raised, arguments advanced and authorities
cited, it is most humbly prayed that this hon’ble court may be pleased to adjudge
and declare that;
1- Accept the appeal petition filed by appellant.
And pass any other order that it deems fit in the interests of justice, equity
and good conscience. All of which is respectfully submitted.

Date:
Place: Rajasthan, India

(Counsels for the Petitioner)

 IN THE HIGH COURT OF RAJASTHAN,AT JODHPUR

IN THE MATTER OF:

MRS. X --------------------------------------------------------------PETITIONER

VERSUS

MR. Y ---------------------------------------------------------------- RESPONDENT

APPLICATION FOR MAINTENANCE AND EXPENSES OF PENDING LEGAL

PROCEEDINGS UNDER HINDU MARRIAGE ACT SECTION 24 OF HINDU
MARRIAGE ACT. 1956.

MOST RESPECTFULLY SHOWETH:

The Petitioner, above named submits as under:

1. That marriage of the Applicant and the Respondent was solemnized on

25.01.2011 at JODHPUR according to Hindu rites and ceremonies. The marriage
was registered with the Registrar of marriages at
__*******__. Certified copy of the extract from the concerned register is attached
herewith as Annexure A.
2. That the status and place of residence of the Parties to the marriage before the
marriage and at the time of filing this petition is given as under:
HUSBAND MR.Y
BEFORE MARRIAGE.
***Age JODHPUR

AFTER MARRIAGE
***Age MUMBAI

WIFE MRS.X
BEFORE MARRIAGE
***Age JODHPUR
AFTER MARRIAGE
****Age MUMBAI AND JODHPUR
3. That the marriage has not been consummated.
4. That the Petitioner and her husband were living together at the matrimonial
house. That After Marriage husband of the Petitioner has harassed her for Dowry
and commit other Offences against her and after six months sane erupted in
between the couple and as a consequence of the same,wife left the matrimonial
home.and Since then the Petitioner is living at her parental home.
5. That the Petitioner does not own any movable or immovable property and she
has no source of income.
6. That the Respondent owns Villa No__204___ admeasuring 5000 sq mtr at
mumbai, Flat No. __*****___ admeasuring _****_ sq ft at ___*****__ and Agricultural
land of __*****__ acres at ___*******___.
7. That the Respondent is working as self employed Businessman.
8. That the Respondent has no other liability, while the Petitioner is dependent
upon him for her day to day expenses.
9. That the Respondent has not made any provision for maintenance of the
Petitioner.
10. That Petition under Section 13 of the Hindu Marriage Act filed by the
Petitioner on the ground of cruelty at the hands of Respondent is already pending
before this Hon'ble Court vide Case No***_ of _***_ in the Court of __******_.
11. That the Petitioner has not remarried and has not been guilty of any conduct
disentitling her to received maintained from the respondent.
12. That the Petitioner is accordingly entitled to claim alimony for her
maintenance to meet her day to day expenses.
13. In the facts and circumstances of case mentioned herein above this Hon'ble
Court may graciously be pleased to.

PRAYER

That the Petitioner, therefore, prays:

a) for grant of maintenance or alimony and for a direction to the Respondent that
he shall pay to her maintenance or alimony for her maintenance and support,
until here death or until she remarries; and

b) Any other relief or reliefs which the court may deem proper under the
circumstances be also awarded to the petitioner.
PETITIONER
THROUGH
________xxxxx____., Advocate
Place :
Date :