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Team Code: P

INDIAN INSTITUTE OF LEGAL STUDIES

INTRA MOOT COURT COMPETITION

BEFORE THE HON’BLE SUPREME COURT OF SINDIA

Writ Petition W. P. No ___/2023

Special Leave Petition W. P. No ___/2023

IN MATTERS RELATED TO ARTICLES 136 OF THE CONSTITUTION

OF SINDIA , 1950

ALONG WITH
SECTION 13 OF THE CIVIL PROCEDURE CODE, 1908

MISHA RAJPUT..........................................................................(PETITIONER)
V/S
ALOKE........................................................................................................ …(RESPONDENT)

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS

COMPANION JUSTICES

OF

THE HON’BLE SUPREME COURT OF SINDIA

MEMORIAL ON BEHALF OF THE PETITIONER

COUNSEL ON BEHALF OF THE PETITIONER

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TABLE OF CONTENTS

Index of Authorities................................................................................................................ii

Statement of Jurisdiction........................................................................................................iii

Statement of Facts...................................................................................................................iv

Issues Involved......................................................................................................................v

Summary of Arguments.........................................................................................................vi-vii

Argument Advanced................................................................................................................ 1

ISSUE I: WHETHER THE WRIT PETITION AND THE SPECIAL LEAVE PETITION FILED BY
MISHA RAJPUT IS MAINTAINABLE?………………………………………………………. 1

ISSUE II: WHETHER SECTION 13 CPC IS APPLICABLE IN THE CASE?…………….. 2-3

ISSUE III: WHETHER THE PETITIOER IS LIABLE TO RECEIVE MAINTAINANCE

FROM THE RESPONDENT?……………………………………………………………….… 3-5

PRAYER……………………………………………………………………………………. 6

MEMORIAL ON BEHALF OF PETITIONER

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INDEX OF AUTHORITIES

CASES:

1. Y. Narasimha Rao v. Y. Venkata Lakshmi. 1991 SCR (2) 821, 1991 SCC (3) 451

2. Viswanathan v. Abdul 1963 AIR, 1 1963 SCR (3) 22

3. Vikas v. State of Uttar Pradesh on 19 March, 2021

4. K. Vimal v. K. Veeraswamy 1991 SCR (1) 904, 1991 SCC (2) 375

5. Satya vs Teja Singh 1975 AIR 105, 1975 SCR (2) 97

BOOKS:

1. MODERN HINDU LAW - Dr. PARAS DIWAN

2. CODE OF CIVIL PROCEDURE & LIMITATION ACT - Dr. S.R. MYNENI
3. PRIVATE INTERNATIONAL LAW - Dr. PARAS DIWAN
4. CODE OF CRIMINAL PROCEDURE CODE 1973 - R.V. KELKAR

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STATEMENT OF JURISDICTION

I. W. P. No. /2023

The petitioners______________have approached the Hon’ble Supreme Court of SINDIA

under Article 32 of the Constitution OF SINDIA.

II. S.L.P. No. /2023

The petitioners_________and others have approached the Hon’ble Supreme Court of

SINDIA under Article 136 of the Constitution of SINDIA

1 Article 32 of the Constitution of SINDIA 1950,

states; “Remedies for enforcement of rights conferred by
this Part —
1.The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights
conferred by this Part is guaranteed.
2.The Supreme Court shall have power to issue directions or orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be
appropriate, for the enforcement of any of the rights conferred by this Part.
3.Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by
law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court under clause (2).
4.The right guaranteed by this article shall not be suspended except as otherwise provided for by this
Constitution.”
Article 136 of the Constitution of Sindia, 1950, states;
“Special leave to appeal by the Supreme Court —
5.Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to
appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or
made by any court or tribunal in the territory of India.
Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any
court or tribunal constituted by or under any law relating to the Armed Forces.

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STATEMENT OF FACTS

1. Misha Rajput, the appellant herein, married the respondent Aloke on July 1, 1955 according to Hindu
rites. Both were Indian citizens and were domiciled in India at the time of their marriage. The marriage
was performed at Chakundar in the State of Funjab. Two children were born of the marriage. A boy
named Ranbir was born in 1956 and a girl named Alia in 1958.

2 . On January 23, 1959 the respondent, who was working as a Forest Range Officer at Ardaspur, left
for Ignited States of Merica (hereinafter referred as I.S.M) for higher studies in Forestry. He spent a
year in a Fewton University and then joined the Itah State University where he studied for about 4 years
for a Doctorate in Forestry. On the conclusion of his studies, he secured a job in Itah on a salary of the
equivalent of about Rs 2700 per month. During these 5 years the appellant continued to live in Sindia
with her minor children. She did not ever join the respondent in Merica as, so it seems, he promised to
return to Sindia on completing his studies.

3. On January 21, 1965 the appellant moved an application under section 488, criminal Procedure Code,
1908 alleging that the respondent had neglected to maintain her and the two minor children. She prayed
that he should be directed to pay a sum of Rs. 1000/- per month for their maintenance.

4. The respondent appeared through a counsel and demurred that his marriage with the appellant was
dissolved on December 30, 1964 by a decree of divorce granted by the Second Judicial District Court of
the State of Veda and for the County of Bashoe, I.S.M.

5. He contended that the appellant had ceased to be his wife by virtue of that decree and therefore, he
was not liable to maintain her any longer. He expressed his willingness to take charge of the children
and maintain them.

6. The Judicial Magistrate, First Class, Chakunder held by its judgment dated December 17, 1966 that
the decree of divorce was not binding on the appellant as the respondent had not "permanently settled"
in the State of Veda and that the marriage between the appellant and the respondent could be dissolved
only under the Hindu Marriage Act, 1955.

7. The learned Magistrate directed the respondent to pay a sum of Rs. 300/- per month for the
maintenance of the appellant and Rs. 100/- per month for each child. This order was confirmed in
revision by the Additional Session Judge, Chakunder, on the ground that the marriage could be
dissolved only under the Hindu Marriage Act, 1955.

8. In a Revision Application, filed by him in the High Court of Funjab and Maryana, a learned single
Judge of that Court viewed that as at the crucial time of the commencement of the proceedings for
divorce before the Court in Veda, the petitioner was domiciled within that State in the Ignited States of
Merica.

9. Applying the early English decision that during the marriage the domicile of the spouse, regardless,
follows the domicile of the husband, the learned Judge held that since the respondent was domiciled in
Veda so was the appealing party in the eye of law. The Veda Court according to the High Court had the
jurisdiction to pass the decree of divorce.

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ISSUES INVOLVED

ISSUE I

WHETHER THE WRIT PETITION AND THE SPECIAL LEAVE PETITION FILED BY MISHA
RAJPUT IS MAINTAINABLE?

ISSUE II

WHETHER SECTION 13 CPC IS APPLICABLE IN THE CASE?

ISSUE III

WHETHER THE PETITIOER IS LIABLE TO RECEIVE MAINTAINANCE FROM THE

RESPONDENT?

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SUMMARY OF ARGUMENTS

ISSUE I

WHETHER THE WRIT PETITION AND THE SPECIAL LEAVE PETITION FILED BY MISHA
RAJPUT IS MAINTAINABLE?

It is humbly contended that the Hon’ble Supreme Court of SINDIA does have Jurisdiction to hear the
issues brought in through the Special Leave Petition , under Article 136 of the Constitution of SINDIA
respectively. This contention is sought to be established on two grounds, namely; [1]Grave injustice suffered
by the petitioners, [2] Substantial Question of Law having Public Importance.

ISSUE II

WHETHER SECTION 13 CIVIL PROCEDURE CODE 1908 IS APPLICABLE IN THE CASE?

According to Section 13 of the Code of Civil Procedure, a foreign judgment shall be conclusive as to
any matter thereby directly adjudicated upon between the same parties or between parties under whom
they or any of them claim litigating under the same title except-
(a) where it has not been pronounced by a Court of competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded on an incorrect view of international
law or a refusal to recognise the law of India in cases in which such law is applicable.
(d) where the proceedings in which the judgment was obtained are opposed to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in force in India.
Section 13 of the Code provides that a foreign judgment will operate as res judicata except in
the six cases mentioned in section, but it must be final and conclusive in that Court in which it was
passed. It will operate as bar to fresh suit in this country on the same cause of action.

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ISSUE III

WHETHER THE PETITIOER IS LIABLE TO RECEIVE MAINTAINANCE FROM THE

RESPONDENT?

Section 125 [1 a & b] of Criminal Procedure Code read with Section 488 of Cr. P.C of Order for
maintenance of wives, children and parents says that-

If any person who has sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself.

A magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a
monthly allowance for the maintenance of his wife or such child, at such monthly rate, not exceeding five
hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the
Magistrate may from time to time direct.

Section 488 of Cr.PC talks about the maintenance of the wife and children. According to section 488 of the
Cr.P.C, it is stated that before the maintenance order is in favour of the wife, it must appear that the
applicant is the “wife” of the husband at the time of the order. In this case, the respondent and the
applicant’s marriage had already been dissolved on Dec 30th of 1960 by a decree of divorce granted by the
Second Judicial District Court of the State of Veda and for the County of Bashoe, I.S.M.
This makes the respondent not liable to pay for maintenance.
Secondly, it is stated in sec 488 of the Cr.P.C that the husband should have sufficient means to to maintain
her or else the he isn’t liable to pay maintenance if he himself is unable to pay for himself.

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ARGUMENTS ADVANCED

ISSUE I: WHETHER THE WRIT PETITION AND THE SPECIAL LEAVE

PETITION FILED BY MISHA RAJPUT IS MAINTAINABLE?

1. It is humbly contended that the Hon’ble Supreme Court of SINDIA does have Jurisdiction to
hear the issues brought in through the Special Leave Petition , under Article 136 of the
Constitution of SINDIA respectively. This contention is sought to be established on two
grounds, namely; 1Grave injustice suffered by the petitioners, [2] Substantial Question of
Law having Public Importance.

2. [1] Grave injustice suffered by the Petitioner

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Article 136 of the Constitution of Republic of Sindia provides that the Supreme Court May, in its
discretion, grant special leave to appeal from any judgement in any cause or matter passed by any court
or tribunal in the country. The Article provides extraordinary power with an objective to ensure that
there will be no miscarriage of justice. In the exercise of this jurisdiction, due diligence and care must
be observed and the consideration of justice is paramount. Additionally, if a court reaches the
conclusion that a person has been dealt with arbitrarily by a legal authority, then no technical hurdles of
any kind like the finality of finding of facts or otherwise can stand in the way of exercising these
powers. The power to grant special leave is not confined to, judgments, decrees or orders of the High
Courts. It can be granted even against the decisions of the lower courts such as that of Magistrates.
In the instant matter, the respondent had neglected to maintain petitioner and the two minor children so
the appellant moved an application under section 488, criminal Procedure Code, all this action violate
Articles of the Constitution of Republic of Sindia and this gross miscarriage of injustice to the
petitioners require immediate attention before the Supreme Court of SINDIA.

3. [2] Substantial Question of Law having public importance

The grounds for allowing a Special Leave Petition include all matters involving substantial questions
of law relating to the interpretation of the Constitution of Sindia and/ or matters of national or public
importance. additionally, such petitions also deal with the validity of laws and the judicial review &
constitutional amendments. If the question of Validity of laws and public importance which also affects
the rights of the parties involved, it call for judicial review.

1. SINDIA CONSTI. ART. 136

2. Moot Proposition Lines 7-10.
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ISSUE II: WHETHER SECTION 13 CIVIL PROCEDURE CODE 1908 IS

APPLICABLE IN THE CASE?
4. It is humbly contended that the Hon’ble Supreme Court of SINDIA that section 313 (a) & (e)
of Civil Procedure Code is applicable in the case.
5. According the fact, the respondent had instituted a foreign court proceeding, in a court in
whose jurisdiction the applicant has never lived, respondent had made a false representation
that respondent was a bona fide resident of that State. Hence the respondent had practised
fraud on the foreign court by concealing this fact. Therefore, that foreign court had no
territorial jurisdiction.
6. Whether the Veda order would be recognized in Sindia depends upon the guidelines of
Sindian Private International Law. The Sindian Private international law is based upon the
Sindian notions of genuine divorce and justice and upon our public policy principles. The
court has yet referred to the principles followed by Merican and English Courts. The
Merican Courts do not recognize a judgment passed by foreign jurisdiction if the judgment
is passed without Jurisdiction or is obtained by fraud or is in violation of the public policy.
The English law regarding the matter, prior to the passing of the Recognition of Divorces
and Legal Separation Act, 1971, has more or less embraced a similar approach as that of
Merican Courts.
7. The Judgment of the veda Court was delivered in a civil proceeding and subsequently, its
legitimacy in Sindia should be relied upon whether it meets the requirements of Section 13
of C.P.C It is not relevant whether the same is examined in Criminal Court in India. If the
Judgment falls under section 13 (a) & ( e), it shall be considered invalid .
8. The Supreme Court laid down the rule regarding foreign divorce decree in 4Y. Narasimha
Rao v. Y. Venkata Lakshmi.
In this case, both the parties were married as per Hindu customary law. Three years later, the
husband filed a divorce petition in a Circuit Court in the USA.
9. A reply was sent by the wife from India under protest. The Circuit Court, however, passed a
divorce decree in absence of the wife. Some years later, the husband married another
woman. Due to this, a criminal complaint was filed by the Mrs. Venkata Lakshmi for
bigamy against Y. Narsimha Rao. The court faced the question that whether the first
marriage was dissolved in light of the decree passed by the 5USA court.

3. Sec 13 CPC; Fraud 2

4. 1991 SCR (2) 821, 1991 SCC (3) 451 MEMORIAL ON BEHALF OF PETITIONER
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10. The Supreme Court answered this issue in negative and refused to recognize the divorce
decree granted by the USA court.
11. According to the principle laid down by AV Dicey and referred to in the case of
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Viswanathan v. Abdul , a judgment passed by a foreign court cannot be assailed on the
basis of either mistake of law or mistake of fact.

ISSUE III : WHETHER THE PETITIOER IS LIABLE TO RECEIVE

MAINTAINANCE FOR HER AND HER CHILDREN FROM THE
RESPONDENT?
12. It is humbly contended that the Hon’ble Supreme Court of SINDIA that the petitioner is
liable to receive maintenance from the respondent under section 125 of Cr.P.C read with
section 488 of Cr.P.C .
13. Misha Rajput and Aloke were married on 1 st July 1955. Their two children were
born, a boy named Ranbir in 1956 and the girl named Alia in 1958. On 1959
Mr.Aloke was not cohabitant with his family due to his higher studies and job. He
started working and living in Itah from 1964. He didn’t return to his family as he
promised, he will on completing his studies. For this entire 5 years he deserted his
family without giving any moral or financial support. Misha Rajput was the only one
in the family who took care of their children all alone, even without any kind of
financial or moral support from Aloke and his family. This is the reason why Misha
Rajput should be eligible for receiving maintainance from her husband Mr. Aloke.
14. Section 125 of the Criminal Procedure Code provides for the maintenance to the
wife, child, and parents. The court after the party has invoked Section 125 of the
Code, may order the respondent, that is the husband, to maintain the wife who is
unable to maintain herself by providing monthly maintenance to her. However,
there is an exception in the provision. For the purpose of providing maintenance to
the wife, the husband has to be sufficient enough to support his wife after the
separation and at the same time, the wife must not be living in adultery or living
separately with her husband without any sufficient reasons. Even if they are living
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6. Viswanathan v. Abdul 1963 AIR, 1 1963 SCR (3) 22 3
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separately in mutual consent, then also the wife will not be entitled to any sort of
maintenance.
15. Under Section 125 of the code, the provision is available for interim maintenance
which means that during the pendency of an application in the court of law, the
order may be passed by the magistrate directing the husband to pay the monthly
allowances to the wife. However, the magistrate has the right to alter the amount
of the maintenance to be paid, if he thinks that there is a change in the
circumstances of the individual who has been paying or either receiving the
monthly allowances. This was laid down in the case of Vikas v. State of Uttar
Pradesh. All such applications of maintenance can be filed in any district where
the person who is liable to pay resides or where the wife resides or where the
person last resided with the wife or with the mother or with the illegitimate child.
The purpose of Section 125 of Cr.P.C is to achieve a social purpose in society.
16. The purpose of Section 125 Cr.P.C was explained in the case of  7K. Vimal v. K.
Veeraswamy, where it was held that Section 125 of the Code had been introduced
for achieving a social purpose. The aim of this section is the welfare of the wife by
providing her with the required shelter, food after the separation from the husband.
It was held in this case that if the wife has lived like a wife and the husband had
treated her like a wife for all the years before their separation, then, the wife
cannot be denied maintenance by her husband.
17. Proceedings under section 488 of the Code of Criminal Procedure are of a criminal
character, and its provisions must be strictly followed. The section is not intended
to provide for all possible cases in which a wife may be entitled to receive separate
maintenance from her husband and it in no way overrides the Civil law or
excludes the jurisdiction of the Civil Courts.

7. K. Vimal v. K. Veeraswamy 1991 SCR (1) 904, 1991 SCC (2) 375

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18. When a husband appears in obedience to a summons issued on the application of a

wife for a maintenance order the complaint and statements of the wife in her
examination should be read and explained to him, and he should be called on to
answer the claim. Before a maintenance order in favour of the wife can be mode, it
must be made to appear, first that the applicant is the wife of the husband at the
time when the order is made secondly that the husband has sufficient means to
maintain her, and, thirdly, that he refuses or neglects to maintain her.
19. If the magistrate is satisfied that the wife is entitled to an order for maintenance, he
should further satisfy himself before making the order: what the actual means of
the husband are and what other persons, if any, are lawfully dependent upon him.
The word 'means' in section 488 includes earning capacity. Hence when a man is
healthy and able bodied he should be taken to have the means to support his wife.
20. In fixing the allowance payable by the husband, regard must be had to all these
matters as well as to the needs and the social position of the wife. An order for
maintenance must be for a sum of money, payable as a monthly allowance, from
the date of the order or from the date of the application for maintenance. The
maximum limit has been raised from rupees one hundred per month to rupees five
hundred per month by Act No. 26 of 1955. The allowance should be made payable
to the wife or to such other person on her behalf as the Magistrate may in his order
direct. Under ordinary circumstances it should be made payable to the wife herself.
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PRAYER

Wherefore, in light of the facts put forth, arguments advanced and the authorities
citied, it is most humbly prayed by the Petitioners in this matter that the Hon’ble
Supreme Court of Sindia may be pleased to:

1. HOLD, that the present Special Leave Petition and Writ Petition is maintainable.

2. DECLARE, that Section 13 Civil Procedure Code, 1908 is applicable in the case.

3. DECLAR, that the Petitioner is liable to receive maintenance from the Respondent under
Section 125 Cr.P.C read with section 488 of Cr.P.C

AND/ OR

Pass any other order it may deem fit in the interest of Justice, Equity and Good Conscience.

All of which is most humbly and respectfully prayed for as Counsel for the Petitioners who
are humbly bound to pray.

Sd/-

Counsels for the Petitioners

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LISTS OF ABBREVIATIONS

& AND
AIR ALL INDIA REPORTER
C.L.J CIVIL LAW JOURNAL
CPC CODE OF CIVIL PROCEDURE
HON’BLE HONOURABLE
HMA THE HINDU MARRIAGE ACT 1955

SC SUPREME COURT

SCC SUPREME COURT CASES

SCR SUPREME COURT REPORTS
V. VERSUS
Mr. MISTER
LTD. LIMITED
COSTI. CONSTITUTION

MEMORIAL ON BEHALF OF PETITIONER