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MOOT COURT FILE

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MOOT COURT FILE

IN THE HON’BLE HIGH COURT

\

APPEAL No. /2023

IN THE MATTER OF

SANJANA …. APPELLANT

ASHOK …. RESPONDENT

O N SUBMISSION TO THE HIGH COURT

SUBMITTED TO – Ms. PRIYANKA GABA

SUBMITTED BY – Ms. LAKSHAY

B.A.LL.B. (A)
1807001070 (10TH SEM)

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TABLE OF CONTENTS

A) LIST OF ABBREVIATONS.....................................................................................1
B) LIST OF CASES........................................................................................................3
C) INDEX OF AUTHORITITES..................................................................................5
D) STATEMENT OF JURISDICTION........................................................................7
E) ISSUES PRESENTED...............................................................................................8
F) STATEMENT OF FACTS........................................................................................9
G) ISSUES RAISED........................................................................................................11
H) PLEADINGS...............................................................................................................12
I. WHETHER THE APPEAL PETITION IS MAINTAINBLE?................12
II. WHETHER THE PROCEDURES FOLLOWED BY THE COURTS...…17
WERE PROPER?
a. SERVICE OF SUMMONS – MERE IRREGULARITY OR...............17
ILLEGALITY
b. INTIMATION FOR CHANGE OF ADDRESS IS DUTY OF PARTY21
c. PROVISION OF RECONCILIATION BY COURTS – ONLY
DIRECTORY............................................................................................22
III. WHETHER THE EX PARTE DIVORCE DECREE IS LIABLE
TO BE SET ASIDE?.....................................................................................24
a. DIVORCE DECREE UNDER SECTION 13(1A) OF THE ACT........24
b. DIVORCE DECREE UNDER SECTION 13(1)(ib) OF THE
ACT
25
c. DIVORCE DECREE UNDER SECTION 13(1)(ia) OF THE
ACT
32
I) PRAYER.....................................................................................................................38

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L IST OF ABBREVIATIONS

& And
A.I.R. All India Reporter
All Allahabad
Anr Another
AP Andhra Pradesh
Bom Bombay
C.J. Chief Justice
C.P.C. Civil Procedure Code, 1908
Cal Calcutta
Chh Chhatisgarh
Co. Company
CWN Calcutta Weekly Notes
DB Division Bench
Del Delhi
DMC Divorce and Matrimonial Cases
DRJ Delhi Reported Journal
E.R. English Reports
ed. Edition/Editor
et al. et alia (and others)
FB Full Bench
FCA Family Courts Act, 1984
Guj Gujarat
HLR Hindu Law Reporter
HMA Hindu Marriage Act, 1955
Kant Karnataka
Ker Kerela
Ltd. Limited
Mad Madras

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MP Madhya Pradesh
Ori Orissa
P&H Punjab and Haryana
P.D. Probate and Divorce Division
Pat Patna
Raj Rajasthan
Rev Revised by
S.C. Supreme Court
S.C.C. Supreme Court Cases

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T ABLE OF CASES

 NATIONAL JUDICIAL DECISIONS

1. Abha Gupta v Rakesh Kumar 1995 (1) HLR 573 (P&H)
2. Adhyatma Bhattar Alwar v Adhyatma Bhattar Sri Devi A.I.R. 2002 SC 88
3. Avtar Singh v Balbir Kaur, 1987 1 HLR 195 Del
4. Balakrishnan v. M.A. Krishnamurthy (1998) 7 S.C.C. 123
5. Bipin Chandra v Prabhawati A.I.R. 1957 SC176
6. Dastane v Dastane, A.I.R. 1975 SC 1534
7. Deo Kumar Sah v Anjali Kumar Sah A.I.R. 2009 Pat 4
8. Dilipbhai Chhaganlal Patel vs. State of Maharashtra and Another A.I.R. 1983 Bom 128
9. Gopal v Mithlesh A.I.R. 1979 All 136
10. GuntamukkalaNagaVenkataKanaka Durga v GuntamukkalaEswarSudhakar A.I.R. 2013 AP 58
11. Harjeet Kaur v Rooplal A.I.R. 2004 P&H 22
12. Harjeet Singh v Gudd, 1987, Raj LR 520
13. J.L. Nanda v L. Nanda A.I.R. 1988 SC 407
14. Jamboo Parasad Jain v Smt. Malti Prabha & Anr. A.I.R. 1979 All 260
15. Kamma Damodar Rao v Anuradha A.I.R. 2011 AP 23
16. Kanthimathi v Parameswarayyar A.I.R. 1974 Ker 124
17. Kusum Lata vs Satish Kumar Khanna 1993 (27) DRJ 516
18. Lachman Utamchand Kirpalani v Meena A.I.R. 1964 SC 40
19. Manisha Jha v Kunal Kanti Jha, 1998(1) HLR 518
20. Meena v Lachman A.I.R. 1960 Bom 418
21. Mohan Dhobi v Smt. K Devi (1976) All LJ 174
22. Mukhtiar Singh v State of Punjab A.I.R. 1995 SC 686
23. N. Premalatha v P.M. Murli I (2018) DMC 112 (DB) (Mad
24. Nalini Sunder v G.V. Sunder A.I.R. 2003 Kant 86
25. Nathu Ram v Salim Abdul Karim A.I.R. 1933 All 165
26. Neelu Kohli v Naveen Kohli A.I.R. 2004 All 1
27. OmPrakash Poddar v Rina Kumari A.I.R. 2013 Del 209
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28. Pramod Sharma v Radha A.I.R. 1976 P&H 355

29. Praveen Mehta v Inderjit Mehta 2002(2) HLR 513 SC
30. Prithvipal Singh v Anita A.I.R. 2014 P&H 7
31. Pushpa Devi v Dharampal 2001 (2) HLR 394 (P&H
32. Radh Ballav v Dayal Chand, A.I.R. 1962Ori 15
33. Raghubir Sahai Bhatnagar v Bhakt Sajjan A.I.R. 1978 All 139
34. Rajlukhy v Bhoothnath (1900) 4 CWN 488
35. Rani Bai @ Shakuntala Verma v Chandrashekar Verma A.I.R. 2011 Chh 93
36. Roop Lal v Kantaro Devi A.I.R. 1970 J&K 158
37. S.P. Srivastava v Prem Lata Srivastava A.I.R. 1980 All 336
38. Sangeeta v Hitesh Kumar A.I.R. 2013 Del 83
39. Savitri Pandey v Prem Chandra Pandey 2002) 2SCC 73
40. Savitri Pandey v Premchand A.I.R. 2002 S.C. 591
41. Shimla Devi v Kuldeep Sharma I 2001 DMC 8 Raj
42. Shivram Shetty v Sharmila Shetty (2016) S.C.C.Online Bom. 9844
43. Smt. Bhavna Adwani v Manohar Adwani A.I.R. 1992 MP 105
44. Smt. Jaggi v Bhagwan Dass 1969 All LJ 1144
45. Smt. Leelawati vs. Ram Sewak A.I.R. 1979 All 285
46. Smt. Manju Singh vs. Ajay Bir Singh A.I.R. 1986 Del. 420
47. Smt. Rani Bai @Shakuntala Verma v Chandrashekhar Verma A.I.R. 2011, Chh 93
48. Sunil Kumar v Anu Kumari 1996(2) HLR 40 (P&H)
49. Surendra Kumar v Kiran Devi A.I.R. 1997 Raj 63

 INTERNATIONAL JUDICIAL DECISIONS

1. Batley v Faulkner (1820) 3 В & Aid 288
2. Pulford v Pulford 1923 Probate 18
3. Russel v Russel (1895) P.D. 315
4. Sheldon v Sheldon 1966 2 All ER 257

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I NDEX OF AUTHORITIES

i. B OOKS REFERRED

1. DESAI PROF. KUMUD (2008) KUMUD DESAI’S INDIAN LAW OF MARRIAGE

AND DIVORCE, SEVENTH ED. NEW DELHI: WADHWA & CO. NAGPUR.
2. DIWAN PARAS (2018) MODERN HINDU LAW. FARIDABAD,
HARAYANA: ALLAHABAD LAW AGENCY.
3. MAYNE JOHN D., MAYNE’S TREATISE ON HINDU LAW AND USAGE, 17TH ED.
NEW DELHI: BHARAT LAW HOUSE.
4. MITRA B.B. THE LIMITATION ACT, 1963, BY M.R. MALLICK, 20TH ED. CALCUTTA,
WEST BENGAL: EASTERN LAW HOUSE.
5. MITRA R. (2014) COMMENTRIES ON THE LIMITATION ACT, EIGHTH
ED. ALLAHABAD, U.P.: LAW PUBLISHERS (INDIA) PVT. LTD.
6. MULLA SIR DINSHAW FARDUNJI (2007) MULLA THE CODE OF CIVIL
PROCEDURE, ED. BINOD MOHAN PRASAD VOL I & II, 17TH EDITION. GURGAON,
HARYANA: LEXIS NEXIS BUTTERWORTHS
7. MULLA SIR DINSHAW FARDUNJI (2016) MULLA HINDU LAW ED. SATYAJEET A.
DESAI, 22ND ED. GURGAON, HARYANA: LEXIS NEXIS
8. SAHARAY H.K. LAWS OF MARRIAGE AND DIVORCE, FIFTH ED.
KOLKATA, WEST BENGAL: EASTERN LAW HOUSE.

ii. LEXICONS REFERRED

1. BLACK’S LAW DICTIONARY, BRYAN A. GARNER, NINTH EDN, WEST A

THOMSON REUTERS BUSINESS
2. THE LAW LEXICON, JUSTICE T.P. MUKHERJEE, REVISED BY DR.B.L. BABEL,
VOL. I, CENTRAL LAW AGENCY, ALLAHABAD.
3. THE NEW INTERNATIONAL WEBSTER’S COMPREHENSIVE DICTIONARY OF
THE ENGLISH LANGUAGE, DELUXE ENCYCLOPEDIC EDITION, 2004 EDITION,
TRIDENT PRESS INTERNATIONAL

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4. SHORTER OXFORD ENGLISH DICTIONARY ON HISTORICAL PRINCIPLES, SIXTH

EDITION, VOL I & II, OXFORD UNIVERSITY PRESS

iii. S TATUTES

1. FAMILY COURTS ACT, 1984

2. THE CODE OF CIVIL PROCEDURE, 1908
3. THE EVIDENCE ACT, 1872
4. THE GENERAL CLAUSES ACT, 1897
5. THE HINDU MARRIAGE ACT, 1955
6. THE LIMITATION ACT, 1963

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S TATEMENT OF JURISDICTION

The respondent has approached the Hon’ble High Court of Delhi under Section 96 of the Code of
Civil Procedure, 1908 (for sake of brevity the Code) read with Section 28 of Hindu Marriage
Act, 1955 (for sake of brevity the Act). The Section 28 of the Act makes any decree passed under
the Act appealable within limitation period and Section 96 of the Code gives power to hear an
appeal from every decree passed by any Court exercising original jurisdiction.

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I SSUES PRESENTED

1. WHETHER THE APPEAL PETITION IS MAINTAINABLE?

2. WHETHER THE PROCEDURES FOLLOWED BY THE COURTS WERE
PROPER?
3. WHETHER THE MARRIAGE SOLEMNISED BY RESPONDNET ON 24TH FEB
2017 AFTER EX PARTE DECREE OF DIVORCE IS LIABLE TO BE SET ASIDE?

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STATEMENT OF FACTS

(1) That Ashok and Sanjana married each other on 17th November, 2011 according to Hindu
rituals. After marriage they resided with parents of Ashok. Ashok’s mother always
wanted a grandson for sacramental reasons.
(2) That Due to persistent insistence by Ashok’s mother, couple had to unwillingly conceive
a child. Sanjana delivered a baby girl on 9th April, 2013 at her parent’s residence as per
the instructions of her mother-in-law. Birth of baby girl created differences between the
couple and Ashok’s mother.
(3) That Mother-in-law used to pass insulting remarks upon Sanjana and her baby girl. Also
threats to remarry her son if she failed to give birth to a baby boy. This deteriorated their
relationship.
(4) That Ashok used to argue with his mother that he is satisfied with the wife and no
complaints from her.
(5) That Ashok rejected demand of separate matrimonial home made by Sanjana and was
adamant to stay with his parents.
(6) That It led to altercation between the couple
(7) That Finally on 22nd December, 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 returned to her parent’s house.
(8) That Sanjana returned to her parent’s house due to continuous taunts of her mother-in-
law and blunt refusal of Ashok along with her daughter on 18th October, 2013.
(9) That Ashok continuously visited his in-law’s house. 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. Furthermore, all attempts to communicate through
phone failed.
(10) That 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.

(11) That 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.

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(12) That The petition was heard ex parte and on the basis of evidence adduced by Ashok, the
family court granted divorce to the husband on 16th September, 2016. The copy of the
order was sent by Ashok to Sanjana on the address provided. Pooja conceived Ashok’s
child and the due date for delivery was 18th May, 2018.
(13) That On 25th February, 2017, Ashok married Miss Pooja, a Hindu by religion. Pooja
conceived Ashok’s child and was due for delivery on 13th April, 2018.
(14) That Meanwhile, Mrs. Sanjana filed an application on 3rd October, 2017 before the High
Court, for condonation of delay for filing appeal against the decree of Family Court
granting ex-parte decree to Ashok stating that she was unaware of the proceedings as the
summons were served on the address on which she was not residing. She also stated that
her parents moved to a new house and accordingly, she also went to the new house.
(15) That Furthermore, 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. She stated that she had also taken Ashok into confidence for
the said purpose.

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ISSUES RAISED

1. WHETHER THE APPEAL PETITION IS MAINTAINABLE?

It is humbly submitted that the petition is not maintainable as it is barred by limitation
period and does not have a sufficient cause which is a pre-requisite to condone the delay.
Thus, this petition is filled with mala fide intention to harass the respondent.

2. WHETHER THE PROCEDURES FOLLOWED BY THE COURTS WERE

PROPER?
It is humbly submitted that the court procedures have been given due regard and were
followed diligently.

3. WHETHER THE MARRIAGE SOLEMNISED BY RESPONDNET ON 24TH FEB

2017 AFTER EX PARTE DECREE OF DIVORCE IS LIABLE TO BE SET
ASIDE?
It is humbly submitted that the ex parte divorce decree has been passed on the merits of
the case. The present case is a fit case to be decided under Section 13 of the Act.

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P LEADINGS

1. WWHETHER WHETHER THE APPEAL PETITION IS MAINTAINABLE?

The appeal petition filed by the appellant is not maintainable in this Hon’ble Court as the
appeal is barred by limitation. Section 19 of Family Courts Act, 1984 (hereinafter referred to as
‘FCA’, for the sake of brevity) clearly states that any appeal shall be preferred within a period of
thirty days from the passing of judgment or order of Family Court. But Section 28 of the Hindu
Marriage Act, 1955(hereinafter referred to as ‘Act’, for the sake of brevity) states:
28. Appeals from decrees and orders. - —
(1)......
(2)......
(3)......
(4) Every appeal under this section shall be preferred within a
period of ninety days from the date of decree or order.
Prior to amendment1 of 2003, Section 28(4) was Pari Materia to limitation of thirty days
in Section 19 of FCA. The provisions of Section 28(4) stood amended consequently to the
suggestions made by Apex Court in Savitri Pandey v Premchand case2. The time period has
been extended considering the nature of matrimonial bond and repercussions of severance in
India. The Hon’ble High Court of Bombay, upheld the application of Section 28(4) of the Act
over Section 19(3) of FCA in Shivram Shetty v Sharmila Shetty 3 by applying the principle of
generalia specialibus non derogant. It is for general welfare that a time period bar should be put
up on litigation. Further, it is a general principle of law that law is made to protect only diligent
and indolent people.
The laws of limitation are found on public policy. Andrew Me Gee, in his book
‘Limitation Periods’4 has observed that: “Arguments with regard to the policy underlying
statutes of limitation fall into three main types. The first relates to the position of the defendant.
It is said to be unfair that a defendant should have a claim hanging over him for an indefinite

1
The Marriage Laws (Amendment) Act, 2003, No. 50 of 2003, (w.e.f. 23.12.2003)
2
A.I.R. 2002 S.C. 591 (India).
3
(2016) S.C.C.Online Bom. 9844 (India).
4
ANDREW MCGEE, LIMITATION PERIODS 57 (6th ed.,Thomson Reuters 2012)
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period and it is in this context that such enactments are sometimes described as ‘statutes of
peace’. The second looks at the manner from a more objective point of view. It suggests that a
time limit is necessary because with the lapse of time, proof of a claim becomes more difficulty
documentary evidence is likely to have been destroyed and memories of witnesses will fade.
The third relates to the conduct of the plaintiff, it being thought right that a person who does not
promptly act to enforce his rights should lose them. All these justifications have been
considered by the Courts.”
In Halsbury’s Laws of England5, the objects of the Limitation Acts have been presented
as follows: “The Courts have expressed at least three different reasons supporting the existence
of statutes of limitation, namely,--
(i) That long dormant claims have more of cruelty than justice in it;
(ii) That a defendant might have lost the evidence to dispute the State claim;
(iii) That person with good causes of actions should pursue them with reasonable
diligence. The doctrine of limitation and prescription is based on two broad considerations,
namely-
(i) That the right not exercised for a long time is non-existence;
(ii) That the rights in property and rights in general should not be in a state of constant
uncertainty, doubt and suspense.
The object of limit in legal actions is to give effect to the maxim interest reipublicae ut sit
finis litium i.e. the interest of the State requires that there should be limit to litigation and to
prevent disturbance or deprivation of what may have been acquired in equity and justice by long
enjoyment or what may have been lost by a party’s own inaction, negligence or latches.
Wood, in his ‘Limitation’6says “The Statutes of limitation are known as statutes of repose or
peace.”
Abbott C.J. in Batley v Faulkner7, has said: “The Statute of limitation was intended for
relief and quiet of the defendant and to prevent persons from being harassed at a distant period of
time after the committing of the injury complained of.”

5
24 HALSBURY’S LAW OF ENGLAND THIRD EDITION 181(J.T. Edgerley et al., Simonds ed., London
Butterworth & Co. (Publishers) Ltd. 1958)
6
H.G. WOOD, A TREATISE ON THE LIMITATION OF ACTIONS AT LAW AND IN EQUITY- WITH AN APPENDIX
CONTAINING THE AMERICAN AND ENGLISH STATUTES OF LIMITATION, 458 (3rd ed., Boston:The Boston
Book Company 1901)
7
(1820) 3 В & Aid 288.

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Delay defeats equity and visilantibus non dormientibus jura subveniunt i.e. Courts help
those who are vigilant and do not slumber over their rights are the reasons for accepting the
concept of limitation. In Balakrishnan v. M.A. Krishnamurthy 8, the Supreme Court has held
that the law of limitation is based on public policy fixing a life span for legal remedy for the
purpose of general welfare. It is pointed out that the rules of limitation are not meant to destroy
the rights of the parties but are meant to see that the parties do not resort to dilatory tactics but
seek third remedy promptly and the law of limitation fixes a life span for legal injury suffered
and that is enshrined in the maxim interest reipublicae ut sit finis litum i.e. it is for the general
welfare that a period be put to litigation and that it is not meant to destroy the rights of the
parties but they are meant to see that the party do not resort to dilatory tactics but seek their
remedy promptly because the idea is that every legal remedy must be alive for a legislatively
fixed period of time.
Rules of limitation are prima facie rules of procedure and do not create any rights in favor
of any person nor do they define or create cause of action but simply prescribe that the remedy
could be exercised only up to a certain period and not subsequently. The Law of Limitation is
an adjective law. It is lexi fori.
Attention of this Hon’ble court is to be drawn to the fact that the appeal petition has been
filled by the appellant after 739 days from date of decree of divorce passed by the Hon’ble
Family Court on 16th September, 2016. Respondent submits that the appeal petition has extended
the limitation period imposed by the law by 382 days approximately. This unnecessary delay by
the appellant seems deliberate and suggests only of malafide intention of the appellant. Section 5
of the Limitation Act prescribes for condonation of delay. It states:-
5. 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.

8
(1998) 7 S.C.C. 123 (India).
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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.
It is submitted that the appellant cannot take benefit of the above said provision as such
unnecessary delay does not qualify of a ‘sufficient cause’ required for such condonation.
Sufficient cause means a cause which is beyond the control of the party invoking the aid of the
Act. The test, whether or not a cause is sufficient, is to see whether it is a bonafide cause, in as
much as nothing shall be taken to be done bonafide or in good faith which is not done with due
care and diligence. Due procedure of law as per C.P.C. was followed during the proceedings
and copy of order was duly sent to the appellant. It is submitted that appellant had knowledge of
the said order. Malafide intention of the appellant is evident which is an absolute bar to the
benefit of such provision. Contentions of the appellant regarding no knowledge of the
proceedings due to change of address are unfounded for the following reasons. Firstly, if there
was change of place of residence of the appellant, she was herself liable to intimate/inform 9 the
Court about such change of address when the decree of divorce was supplied to her. It can be
clearly concluded that she did not act with due diligence and chose to ignore the proceedings
and decree granted. Secondly, the appeal was filled only after the respondent remarried to Pooja.
This act of appellant is against public policy as by filing the petition after such a deliberate delay
will affect interests of so many lives. It is evident from facts and circumstances in the present
matter that the appellant is not a bonafide litigant and is misusing the process to settle enmity
against the respondent and affecting the rights of a third party i.e. second wife Pooja and their
child.
During the subsistence of marriage between the parties, appellant used to quarrel with her
mother-in-law, unnecessarily pick fights with respondent, refused to live with husband, left the
matrimonial house, non-supportive attitude to respondent’s repeated attempts of communication
and reconciliation. She did not even comply with the Court’s notice to appear also refused to
accept summons. In light of above facts of the case, it can be clearly concluded that the
appellant never had intention to preserve the matrimonial tie with the respondent.

9
Delhi High Court Rules,2010, Rule 8 Part C; Rule 14A Order VI of C.P.C.; Supra Note Issue 2, pg 19

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It is submitted that if the ex-parte decree is set aside by this Hon’ble Court, the
remarriage of respondent would amount to bigamy. The question of bigamy would arise when a
person having already a wife existing contracts a second marriage. The marriage solemnized
with Pooja would be rendered invalid and status of child from such marriage would be of
illegitimate child. It is also well settled that a court has to take notice of subsequent events. In the
case of P. Venkateswarlu v. Motor and General Traders 10, their Lord-Ships held “…. the court
can, and in many cases must, take cognizance of events and developments subsequent to the
institution of the proceeding provided the rules of fairness to both sides are scrupulously
obeyed.”
In the light of the above cited authority, it is the duty of the court to take notice of the
subsequent events viz. remarriage of husband prior to the filing of appeal against ex parte
divorce decree. This humanly approach is considered by many High Courts11.
In the present matter, respondent has duly complied with all substantive and procedural
laws. Respondent remarried even after more than 162 days to the decree of divorce i.e., more
than 90 days after the expiry of appeal period available to the appellant (then respondent). The
respondent has duly complied with all substantive and procedural laws. Whereas the appellant,
from the facts of the case, neither seem to have bonafide intention nor acted with due diligence
during proceedings.
Hence, in the light of above cited authorities and in the interest of justice and public
policy, it is most humbly submitted that the case is not maintainable.

10
MANU/SC/0415/1975 : [1975]3SCR958
11
Harjeet Singh v Gudd, 1987, Raj LR 520 (India); Surendra Kumar v Kiran Devi A.I.R. 1997 Raj 63
(India); Pramod Sharma v Radha A.I.R. 1976 P&H 355 (India); Jamboo Parasad Jain v Smt. Malti Prabha
& Anr. A.I.R. 1979 All 260 (India).

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2. W HETHER THE PROCEDURES FOLLOWED BY THE COURTS WERE

P ROPER?
The court gave due consideration to the procedural part which is its tool to do justice to bona fide
litigants
A) Service of Summons – Mere Irregularity Or Illegality?
The Court procedure is initiated by plaintiff by presenting a plaint in the Court of law.
According to Black’s Law Dictionary12 “summons” mean ‘a writ or process commencing the
plaintiff’s action and requiring the defendant to appear and answer’. Summons are issued
according to Order V of the Code which prescribes the procedure for serving of summons to the
party. These are the mandatory provisions of law which has to be followed and to which the
respondent has strictly complied with. But Courts in plethora of cases has held that if these
provisions are not strictly complied then it will only be considered mere irregularity and not
illegality and the proceedings will not be vitiated if there are some procedural lapses while
serving the summons. In Raghubir Sahai Bhatnagar v Bhakt Sajjan 13, Court gave difference
between illegality and irregularity.
“There is difference in illegality and irregularity. Irregularity
contemplates defect in procedure and non-compliance of the
prescribed formality which may not be of substantial nature.
Illegality, on the other hand, connotes contravention of statute
which may in some cases make the action void. Illegality
contemplates an action forbidden by law while irregularity is
mere defect in procedure. If this basic difference in the two
expressions is kept in mind, the expression 'irregularity' in the
service of summons occurring in the proviso added to Order IX
Rule 13 would mean defect in following the procedure prescribed
for the service of summons. No doubt Order V Rule 17 requires
that on defendant's refusal to accept the summons the process
server should affix the same on the outer door of the defendant's
place of residence or business, but failure of the process server to
12
BLACK’S LAW DICTIONARY 1574 (Bryan A. Garrner et al., 9th ed., Thomson Reuters 2009).
13
A.I.R. 1978 All 139 (India).

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go through the prescribed formality of affixing the summons at

the outer door is a technical fault amounting to an irregularity.”
Further, in the above stated case of Raghubir Sahai (supra) Court compared facts and
circumstances of different cases with that case and held that only on mere irregularity of serving
of summons will not be a ground for setting aside an ex parte decree.
“In the instant case…the process server as well as the witnesses
had filed their affidavits and the courts below have recorded a
finding of fact that the process server tendered the summons to
the defendant and he had knowledge of the suit. For all these
reasons the authorities cited by the learned counsel for the
applicant do not support his contention…we are of the opinion
that the applicant failed to make out any sufficient cause for his
absence on the date of hearing of the suit and the courts below
rejected his application for setting aside the ex parte decree. The
application fails”14
In Nathu Ram vs. Salim Abdul Karim15, Court held that “simply because of the
irregularity the defendant was not entitled to have the ex parte decree set aside.”
It is the fundamental principle from the Latin maxim actus curiae neminem gravabit
which means ‘that act of court shall prejudice no man unless sanctioned by law’. It is well-settled
proposition of law that even in ex parte cases, Court has to pass a reasoned order by discussing
the pleadings and evidence of the party. Thus, Court shall not set aside said ex parte decree on
mere irregularity in service of summons or in a case where defendant had notice of date of
hearing and sufficient time to appear in Court. It is not permissible for Court to allow said
application in utter disregard of terms and conditions incorporated in second proviso to Rule 13
of Order IX C.P.C.16. Before setting aside an ex parte decree, it is important to note the limitation
factor to set aside ex parte decree. It is humbly submitted that summons was duly served during
the pendency of the petition for seeking divorce which were marked as 'refused to

14
Ibid.
15
A.I.R. 1933 All 165 (India).
16
Radh Ballav v Dayal Chand, A.I.R. 1962 Ori 15 (India); Smt. Jaggi v Bhagwan Dass 1969 All LJ 1144
(India); Mohan Dhobi v Smt. K Devi (1976) All LJ 174 (India); Raghubir Sahai Bhatnagar v Bhakt
Sajjan A.I.R. 1978 All 139 (India); S.P. Srivastava v Prem Lata Srivastava A.I.R. 1980 All 336 (India).

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accept’ which clearly indicates that the appellant had the constructive knowledge of the matter
and she intentionally attempted to ignore it. Section 27 of General Clauses Act, 1897 and Section
114 of Indian Evidence Act, 1872 states that there is presumption that respondent is deemed to
be served if summons returned with endorsement 'refused to accept'. The Court took constructive
knowledge based on the facts of case which was well within its power. It can be inferred from
the facts of the case that appellant had no intention to resume her matrimonial ties as there was
total passiveness on her part for approximately three years. Thus, there was no violation of
principles of natural justice also.

B) I ntimation For Change of Address-Duty Of The Party

In the present matter, the appellant’s contention is that she had changed her address but no
intimation was ever given to the respondent because she had not changed her address, address was
same and she willfully refused to accept the summons as there is no record which shows that she had
changed her address. But if she had done so then as per the provisions of law it is the duty of the
party, whose address has changed, to inform the Court about the change for facilitating the service of
summons. The provisions dealing with change of address are stated below-
a) In Delhi High Court Rules17
R.8.Address of the parties—The proceeding containing address
for service is intended to facilitate the service of processes
throughout, the litigation (including appeals etc.), and it is,
therefore, important to see that it is duly filed at the outset
according to this rule. Failure to comply with the rule is liable to
be punished with dismissal of the suit but such an order may
properly be passed in extreme case when the failure is intentional
and contumacious. By virtue of addition of Rule 14A in Order 6
of C.P.C., plaintiff and defendant both are required to file address
in Court which is known as registered address of the party for
service of all processes issued by the Court. In case of change in
the address, the parties are required to intimate the Court about
the same. If any party gives incomplete, false or fictitious address,

17
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the Court can suo moto or on the application of any of the parties
to the suit, stay the suit in respect of the plaintiff and strike out the
defense of defendant. If the Court is satisfied that the party was
prevented by any sufficient cause from filing the true address at
the proper time, it can set aside the order of stay or striking of
defense on any terms including imposition of costs and it shall
appoint a day for proceeding with the suit or defense as the case
may be.
b) In C.P.C.
Order VI Rule 14A. Address for service of notice—
(1) …..
(2) Such address may, from time to time, be changed by lodging
in Court a form duly filled up and stating the new address of the
party and accompanied by a verified petition.
(3) The address furnished in the statement made under sub-rule
(1) shall be called the "registered address" of the party, and shall,
until duly changed as aforesaid, be deemed to be the address of
the party for the purpose of service of all processes in the suit or
in any appeal from any decree or order therein made and for the
purpose of execution, and shall hold good, subject as aforesaid,
for a period of two years after the final determination of the cause
or matter.
(4) ……
(5) ……
(6) ……
(7) …….
(8) ……..
Thus, on perusal of the above stated provisions it is substantiated that it was the duty of
the party who has changed his address to file an application for the change. In the present case
the appellant had changed her address so she is under obligation to inform the Court and which

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she failed to do. Ashok by virtue of being the appellant was under duty to send the summons to
the last known correct address of the respondent. Accordingly, Ashok sent the summons to the
last known proper address known to the best of his knowledge.

C) P rovision of Reconciliation by Courts – Only Directory.

It is humbly submitted before the Hon’ble High Court that the statutory provisions
mentioned under Section 9 of FCA and Section 23 (2) of the Act are not mandatory rather
directory. The provision does cast a duty on the court to make every endeavor to bring about
reconciliation between the parties. However, the phrase in the said Sections unequivocally
shows that it is not an absolute rule. The provision is couched in such words which do provide a
discretion to the court to consider whether having regard to the nature and circumstances of the
case, it will or not be possible to bring about a reconciliation or not. Therefore, on the plain,
clear and unambiguous wording of the said section, it is not possible to hold as an abstract
proposition of law that the provision is mandatory and absolute in the sense that its non-
observance will necessarily make the order without jurisdiction 18. Similar view is expressed in
Smt. Leelawati vs. Ram Sewak19, and Dilipbhai Chhaganlal Patel vs. State of Maharashtra and
Another20.
In Smt. Manju Singh vs. Ajay Bir Singh21, while expressing the opinion that Section 23(2)
of the Act gives a direction to the court that before proceeding to grant any relief, it shall
endeavor to bring about reconciliation. The use of the word ‘direction’, in view of D.K. Jain, J.,
itself shows that the mandate of the section is not absolute but directory.

18
Kusum Lata vs Satish Kumar Khanna 1993 (27) DRJ 516 (India).
19
A.I.R. 1979 All 285 (India).
20
A.I.R. 1983 Bom 128 (India).
21
A.I.R. 1986 Del. 420 (India).
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3) WHETHER THE MARRIAGE SOLEMNISED BY RESPONDNET ON 24TH FEB

2017 AFTER EX PARTE DECREE OF DIVORCE IS LIABLE TO BE SET ASIDE?

It is humbly submitted before the Hon'ble Court that the divorce decree was passed on
merits of the case. It was not an action in the vacuum rather was based on cogent and
reliable reasons.
A) Divorce Decree Under Section 13(1B) Of the Act-
In the present case, appellant left her matrimonial home on 22th december, 2013. On
several times respondent visited his in-laws house but was unable to meet his wife and further, he
tried to meet her several times but was unsuccessful in doing so. He tried to communicate
through phone also but all in vain and the appellant did not turn up to resume her matrimonial
home. There was no cohabitation for a period of more than 2 years. 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, making it a fit case for grant of divorce decree under Section 13(ib) of the
Act.
Section 13(1)(ib) of the Act states:-.
(1A) Either party to a marriage, whether solemnized before or
after the commencement of this Act, may also present a petition
for the dissolution of the marriage by a decree of divorce on the
ground
(i) has, after the solemnization of the marriage, had
voluntary sexual inter-course with any person other than his or her
spouse; or
(ia) has, after the solemnization of the marriage, treated
the petitioner with cruelty; or
(ib) has deserted the petitioner for a continuous period of
not less than two years immediately preceding the presentation of
the petition; or
The present clause permits either party to present the petition where the period of two years
since the other spouse deserted had been passed to apply to the court for a decree of divorce by
showing that there has been no cohabitation between the parties to the marriage for a period
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of two year or upwards after the marriage. There are two ingredients for application of this
provision, i.e., there should be no cohabitation for a period of two year after solemnization of
marriage. In the present case, it is evident that there was no cohabitation for a period of more
than two years after solemnization of marriage. It is submitted that in the present matter, does not
attract provision of Section 23. Therefore, respondent is entitled to divorce decree under this
Section 13(1B) of the Act.
B) D Divorce Decree Under Section 13(1)(ib) the Act-
Pertaining to the facts and circumstances of the case, appellant wife left the matrimonial
home and started living with her parents. She did not turn up even after repeated efforts of
respondent. The case qualifies for divorce under Section 13(1)(ib) of the Act. Section 13(1)(ib)
expressly states that any marriage may be dissolved on a petition presented by either the
husband or wife by a decree of divorce on the ground that the other party has deserted the
petitioner for a continuous period of not less than two years immediately preceding the
presentation of the petition. Further, an explanation has been appended to the section describing
the expression “Desertion”, it means ‘the Desertion of the petitioner by the other party to the
marriage without reasonable cause and without the consent or against the wish of such party,
and includes willful neglect of the petitioner by the other party to the marriage and it's
grammatical variations and cognate expressions shall be construed accordingly.’ According to
Black's Law Dictionary22, ‘desertion’ has been defined as the ‘willful and unjustified
abandonment of a person's duties or obligations, esp. to military service or to a spouse or
family.’ According to The Law Lexicon23, ‘desertion’ is the ‘active or willful termination of an
existing state of cohabitation without the consent express or implied of the party alleging
desertion and against such party's wish.’

The expression “Desertion” in the context of matrimonial law represents a legal

conception and is very difficult to define. The essence of desertion is the forsaking and
abandonment of one spouse by the other without reasonable cause and without the consent or

22
BLACK’S LAW DICTIONARY 511 (Bryan A. Garrner et al., 9th ed., Thomson Reuters 2009).
23
1 JUSTICE T.P. MUKHERJEE, THE LAW LEXICON 533 (5th Revised and Enlarged ed., Central Law Agency
2003)
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against the wish of the other 24. It is a well settled principle that ‘desertion’ is a withdrawal not
from a place, but from a state of things’ 25. According to the provision necessary elements to
constitute Desertion are-
(a) The factum of separation
(b) Intention to bring cohabitation permanently to an end
(c) Absence of consent
(d) Absence of conduct giving reasonable cause to quit the matrimonial home.
From the explanation, it is abundantly clear that the legislature intended to give the
expression a wider import which includes willful neglect of the petitioner by the other party to
the marriage. The statutory requirement as to time during which the 'state of things’ should
continue is fixed at a continuous period of not less than two years immediately preceding the
presentation of the petition. Thus, the quality of permanence is one of the essential elements,
which differentiates desertion from willful or voluntary separation. Therefore, for the offence of
desertion, so far as the deserting spouse is concerned, two essential conditions must be there,
namely,
(a) The factum of separation, and
(b) The intention to bring cohabitation permanently to an end (animus deserendi).
Similarly, two elements are necessary, so far as the deserted spouse is concerned:
(a) The absence of consent, and
(b) Absence of conduct giving reasonable cause to the spouse leaving the matrimonial home
to form the necessary intention aforesaid.
In Bipin Chandra v Prabhawati26, the Supreme Court has observed that:
“the legal position has been admirably summarized in paras. 453
and 454 at pp. 241 to 243 of Halsbury's Laws of England (3rd
Ed.) Vol. 12, in the following words:-
"In its essence desertion means the intentional permanent
forsaking and abandonment of one spouse by the other without

24
SIR DINSHAW FARDUNJI MULLA, MULLA HINDU LAW 935 (Satyajeet A. Desai ed., 22nd Lexis Nexis
2016).
25
Pulford v Pulford 1923 P18.
26
A.I.R. 1957 SC 176 (India).
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that other's consent, and without reasonable cause. It is a total

repudiation of the obligations of marriage. In view of the large
variety of circumstances and of modes of life involved, the Court
has discouraged attempts at defining desertion, there being no
general principle applicable to all cases.
Desertion is not the withdrawal from a place but from a
state of things, for what the law seeks to enforce is the recognition
and discharge of the common obligations of the married state; the
state of things may usually be termed, for short, 'the home'. There
can be desertion without previous cohabitation by the parties, or
without the marriage having been consummated.
The person who actually withdraws from cohabitation is
not necessarily the deserting party. The fact that a husband makes
an allowance to a wife whom he has abandoned is no answer to a
charge of desertion.
The offence of desertion is a course of conduct which exists
independently of its duration, but as a ground for divorce it must
exist for a period of at least three years immediately preceding the
presentation of the petition or, where the offence appears as a
cross-charge, of the answer. Desertion as a ground of divorce
differs from the statutory grounds of adultery and cruelty in that
the offence founding the cause of action of desertion is not
complete, but is inchoate, until the suit is constituted. Desertion is
a continuing offence".”
As Rayden in Divorce27 puts it mere physical activity of departure by one spouse does not
necessarily make that spouse the deserting party. The essence of desertion as judicially
understood, is a total repudiation of the obligation of marriage or an abandonment of the
deserted spouse with an intention to bring the cohabitation permanently to an end 28. Mere
physical separation between the spouses or mere intention of one to separate from the other
27
1 RAYDEN, DIVORCE 232 (12th ed.).
28
Rohini kumari v Narendra Singh A.I.R. 1972 SC 459 (India).
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without any overt act would not by itself amount to desertion 29. Under the matrimonial law,
desertion is not only a physical act but also involves essentially a mental act 30. The proof of
desertion has to be considered by taking into consideration the concept of marriage which in law
legalizes the sexual relationship between man and woman in the society for the perpetuation of
race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of
children. Desertion is not a single act complete in itself; it is a continuous course of conduct to
be determined under the facts and circumstances of each case. As stated by the Supreme Court,
if a spouse abandons the other in a state of temporary passion, anger or disgust without
intending permanently to cease cohabitation, it will not amount to desertion 31. The offence of
desertion commences when the fact of separation and the animus deserendi co-exist. Where the
husband filed petition for divorce after two years of his marriage of non-cohabitation between
the husband and wife as the wife had left matrimonial home and also inspite of necessary efforts
made by the husband she neither returned back nor showed any interest to do so 32. Therefore, it
can be said that she had abandoned matrimonial home once for all and marital bond had been
irretrievably broken down. Hence, the husband is entitled to a decree of divorce33.
Two years’ time period has elapsed since she left her home, immediately preceding the
petition for divorce, thereby, satisfying the prerequisite of taking desertion as a ground for
divorce. The appellant Sanjana left her matrimonial home and went to her parent's house on 22nd
December, 2013. She did not meet Ashok in spite of his repeated efforts of visiting his in-laws
house and attempts to establish contact through phone were also unsuccessful. Even if wife is
staying away with the permission of husband and not returning on subsequent request of
husband, it amounts to desertion34.

29
JOHN D. MAYNE, MAYNE'S TREATISE ON HINDU LAW AND USAGE 344 (Dr. Vijender Kumar rev., 17th ed.
Bharat Law House 2015).
30
Pushpa Devi v Dharampal 2001 (2) HLR 394 (P&H) (India).
31
Lachman Utamchand Kirpalani v Meena A.I.R. 1964 SC 40 (India).
32
Deo Kumar Sah v Anjali Kumar Sah A.I.R. 2009 Pat 4 (India).
33
Guntamukkala Naga Venkata Kanaka Durga v Guntamukkala Eswar Sudhakar A.I.R. 2013 AP 58
(India).
34
N. Premalatha v P.M. Murli I (2018) DMC 112 (DB) (Mad.) (India).
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The word “willful” means “purposely”, which presupposes an intentional act. In Meena v
Lachman35, the Supreme Court observed, “in the context of matrimonial law, willful neglect
seems to mean that the person charged with it, is consciously acting in a reprehensible manner
in the discharge of matrimonial obligations or is consciously failing in a reprehensible manner
in the discharge of those obligations and connotes that degree of neglect which is shown by an
obvious duty attended by a knowledge of the likely results of the abstention. Animus deserendi
is also implicit in willful neglect as in desertion”36. In the present matter, acts of appellant come
under the category of ‘willful neglect’ as she abstained from her matrimonial obligations
towards her husband and in-laws.
Undoubtedly it is not the wife alone who has to yield to all kinds of demands of the
husband, but it is surely expected of her to co-operate and when the husband makes an effort to
call her back then at least she could have expressed her terms and conditions for her return 37.
Where the wife left the matrimonial home as she failed in her attempts to separate the
husband from his parents and to live in a separate house, it was held that her conduct
amounted to desertion38.
Sanjana decided to leave her matrimonial home with her minor daughter. According to
Webster’s Dictionary39, ‘decision’ means ‘the act of deciding or making up one’s mind.’
Further, ‘decision’ as per Oxford Dictionary40 means ‘determined character, firmness, resolve’.
The action of coming to a determination or resolution with regard to any point or course of
action; a resolution or conclusion arrived.’ The legal definition of ‘conclusion41’ is ‘an act by
which a person debars himself or herself; an estoppel’ and ‘resolution42’ means ‘the action or an
act of resolving or making up one’s mind; anything resolved on; a positive intention.’ Decision
does not merely mean ‘conclusion’. It embraces within its fold the reasons forming basis for

35. A.I.R. 1960 Bom 418 (India).

36. Ibid.
37. Shimla Devi v Kuldeep Sharma I 2001 DMC 8 Raj (India).
38. Avtar Singh v Balbir Kaur, 1987 1 HLR 195 Del (India).
39. The NEW INTERNATIONAL WEBSTER’S COMPREHENSIVE DICTIONARY OF THE ENGLISH LANGUAGE
333(Deluxe Encyclopedic ed., Trident Press International 2004).
40 1 SHORTER OXFORD ENGLISH DICTIONARY ON HISTORICAL PRINCIPLES 619(Lesley Brown et al., 6th ed.,
Oxford University Press 2007)
41 1 SHORTER OXFORD ENGLISH DICTIONARY ON HISTORICAL PRINCIPLES 480 (Lesley Brown et al., 6th ed.,
Oxford University Press 2007)
42 2 SHORTER OXFORD ENGLISH DICTIONARY ON HISTORICAL PRINCIPLES 2547(Lesley Brown et al., 6th ed.,
Oxford University Press 2007)
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arriving at conclusion43. From the above cited definitions, it can be inferred that appellant made
up her mind and decided to leave her matrimonial home and it was not in a temporary state of
mind. Intention to desert respondent without his consent can be inferred, which is accompanied
by her persistent refusal to resume cohabitation even after tireless efforts of respondent.
Neither appellant meet respondent due to mental pressure by her parents nor did she
return back to her matrimonial home. In the case of Smt. Bhavna Adwani v Manohar
Adwani,44 the Court held that if wife could not muster courage to go against the will of her
father to resume cohabitation, it is considered as willful neglect by the wife45. Further, there
were no attempts made by her to communicate with respondent. The facts evidently prove her
animus deserendi to end cohabitation permanently.
From the above discussion it is clear that appellant had no ‘reasonable cause’ to leave the
matrimonial home. Here, appellant’s act of leaving the matrimonial home was without the
consent or against the wish of the deserted spouse viz. respondent. There is no evidence of any
intimation by appellant to respondent regarding her decision of leaving her home. Further,
persistent endeavor of respondent to bring his wife back signifies that he never intended to get
separated from her. Facts and circumstances of the case do not warrant the presumption of
consent on part of respondent to live separately. Thus, it is contented that appellant has deserted
respondent and hence the appeal petition should be dismissed.
C) DDivorce Decree Under Section 13(1)(ia) of the Act
According to Black’s Law Dictionary46 cruelty means ‘the intentional and malicious
infliction of mental or physical suffering on a living creature’. Cruelty has been defined in the
classic judgment of Russel v Russel,47 as “Cruelty which is a ground for dissolution of marriage
may be defined as willful and unjustifiable conduct of such a character as to cause danger to
life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a
danger.” Cruelty as a ground of divorce was added through Amendment Act of 1976 before the
amendment it was just a ground of judicial separation under Section 10 the Act.

43
Mukhtiar Singh v State of Punjab A.I.R. 1995 SC 686 (India).
44
A.I.R. 1992 MP 105 (India).
45
Ibid.
46
BLACK’S LAW DICTIONARY 434 (Bryan A. Garrner et al., 9th ed., Thomson Reuters 2009).
47
(1895) P.D. 315.
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Lord Denning in Sheldon v Sheldon48 held that ‘The categories of cruelty are not closed’.
The provision in clause (ia) of Section 13(1) of the Act, which was introduced by the Marriage
Laws (Amendment) Act, 68 of 1976 simply states that, after solemnization of the marriage,
treated the petitioner with cruelty. The object, it would seem, was to give a definition exclusive
or inclusive, which will amply meet every particular act or conduct and not fail in some
circumstances. As held by Supreme Court49, by the amendment the legislature must, therefore,
be understood to have left to the courts to determine on the facts and circumstances of each case
whether the conduct amounts to cruelty.
As held by the Supreme Court in Savitri Pandey v Prem Chandra Pandey 50, ‘cruelty’
postulates a treatment as to cause a reasonable apprehension in his or her mind that it would be
harmful or injurious for the petitioner to live with the other party. To prove cruelty, it is not
essential that there is intention to be cruel. What is important is the fact that the cruelty is of
such a type that it becomes impossible for spouses to live together.51
Cruelty as interpreted by the Courts is of two kinds:
a) Physical Cruelty
b) Mental Cruelty
Physical Cruelty may consist of physical violence and bodily danger52.
Mental cruelty is defined as ‘a ground for divorce, one spouse’s course of conduct (not
involving actual violence) that creates such anguish that it endangers the life, physical health or
mental health of the other spouse’53. The term ‘cruelty’ consists of ‘unwarranted and
unjustifiable conduct on the part of defendant causing other spouse to endure suffering and
distress thereby destroying peace of mind and making living with such spouse unbearable,
completely destroying real purpose and object of matrimony’ 54. In cases of mental cruelty, the
whole matrimonial relationship has to be taken into account55.

48
1966 2 All ER 257.
49
Praveen Mehta v Inderjit Mehta 2002(2) HLR 513 SC (India).
50
(2002) 2SCC 73 (India); Dastane v Dastane, A.I.R. 1975 SC 1534 (India).
51
Neelu Kohli v Naveen Kohli A.I.R. 2004 All 1 (India).
52
JOHN D. MAYNE, MAYNE'S TREATISE ON HINDU LAW AND USAGE 297 (Dr. Vijender Kumar rev., 17th ed.
Bharat Law House 2015).
53
BLACK’S LAW DICTIONARY 434 (Bryan A. Garrner et al., 9th ed., Thomson Reuters 2009).
54
Manisha Jha v Kunal Kanti Jha, 1998(1) HLR 518 (India).
55
Roop Lal v Kantaro Devi A.I.R. 1970 J&K 158 (India).
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In case of physical cruelty, there may exist tangible evidence, clearly indicating cruel
behavior, as against cases of mental cruelty, where there may not be any direct evidence. There
is no straight jacket formula or parameter to apprehend the quantum of mental stress and agony
which one spouse bears due to cruel conduct of other spouse. While assessing mental cruelty
appropriate consideration should be given to status of life, the standard of living, the family
background, the society in which the parties are accustomed to move, education, local customs,
physical and mental conditions of the parties56.
i. Demand for Separate Matrimonial home
The joint and undivided family is the normal condition of Hindu society. An undivided
Hindu Family is ordinarily joint, not only in estate, but also in food and worship. As per the
Hindu philosophy, the aged parents, a virtuous and an infant child must be maintained even by
doing hundred misdeeds.
In the Mahābhārata, there is a story of a Brahmaṇa boy who
leaves behind his elderly parents to advance spiritually. He
acquires several spiritual powers, but discovers that even a
butcher who had merely served his aged parents diligently was
more advanced than him. The Brahmaṇa boy learned the lesson
that serving one’s parents yields a much greater reward than
abandoning them and pursuing your own selfish goals.
In his various incarnations, God has himself set an example for us on how to serve our
parents, because they are his direct representatives for us on this Earth. Lord Rama, Ganesha
and Kartikeya, great saint Sankaracharya, and the devoted son Sravanakumara are inspirations
for a Hindu son as to how he should respect and cater to the needs and demands of one’s
parents. From the facts and circumstances of the case it is reflected that the respondent’s
persistent refusal for separate matrimonial home indicates that he is an ideal Hindu family man.
The Hon’ble Supreme Court57 held that the demand by the wife to seek separate residence
amounts to cruelty when there is no justifiable cause for seeking the same.

56
Sunil Kumar v Anu Kumari 1996(2) HLR 40 (P&H) (India).
57
Adhyatma Bhattar Alwar v Adhyatma Bhattar Sri Devi A.I.R. 2002 Supreme Court 88 (India); Smt. Rani
Bai @Shakuntala Verma v Chandrashekhar Verma A.I.R. 2011, Chh 93 (India).
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In Gopal v Mithlesh58, the Court held that husbands stand of neutrality between his
mother and wife and thereby allowing his wife to be nagged by his mother did not amount to
cruelty to the wife: this was the normal wear and tear of Hindu family life. In the present case,
the respondent tried to maintain equilibrium between the demands of his wife and his duties
towards his parents in order to lead a happy and peaceful family life.
Respondent submits that he has responsibility towards his parents as a son of a Hindu
Undivided Family and decision of separate matrimonial house would result in abandonment of
his parents and his responsibilities towards them. Therefore, he was well in his rights to refuse
such demand by appellant being unreasonable and unjustified.
ii. Drunkenness and abuse not amounting to cruelty
Drunkenness, per se, is not cruelty, but persistent drunkenness after warnings that such a
course of conduct is inflicting pain and misery on the other spouse may well amount to
cruelty59. It is clear from the facts and circumstances of the case that respondent started drinking
due to mental stress arising out of repeated arguments and disputes between his family
members. Thus, it is asserted that respondent was not a habitual drunkard; there are no instances
of repeated drinking and abuse except when he was frustrated by his shattering and deteriorating
family life.
Abuse means ‘Physical or mental maltreatment, often resulting in mental, emotional,
sexual, or physical injury’60. According to Oxford Dictionary61 abuse means ‘treat with cruelty
or violence, especially regularly or repeatedly’. In the light of the above cited definitions and
facts and circumstances of this case, there were no instances/incidents of any physical injury,
violence, cruelty, maltreatment or sexual abuse. In fact, respondent never forced appellant for
sexual intercourse when she denied it. Moreover, this alleged behavior of respondent was only
at times and ‘at times’ means ‘sometimes or occasionally’62. Mere vulgar or obscene abuse,
rudeness of language, opprobrious and offensive remarks, petulance of manners, austerity of

58
A.I.R. 1979 All 136 (India).
59
Harjeet Kaur v Rooplal A.I.R. 2004 P&H 22 (India); Kamma Damodar Rao v Anuradha A.I.R. 2011 AP
23 (India).
60
BLACK’S LAW DICTIONARY 11 (Bryan A. Garrner et al., 9th ed., Thomson Reuters 2009).
61 1 SHORTER OXFORD ENGLISH DICTIONARY ON HISTORICAL PRINCIPLES 11(Lesley Brown et al., 6th ed.,
Oxford University Press 2007).
62 1 SHORTER OXFORD ENGLISH DICTIONARY ON HISTORICAL PRINCIPLES 13(Lesley Brown et al., 6th ed.,
Oxford University Press 2007).
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temper, or an occasional sally of passion or acts of ill treatment per se would not constitute legal
cruelty63.
Thus, it can be inferred that this behavior of respondent was due to the emotional and
psychological turbulence arising out of his fractured relationships and it was occasional. In
Rajlukhy v Bhoothnath64, it was held that ordinary quarrels between husband and wife does not
justify the wife in leaving her husband’s house. As observed by the Supreme Court,65 sometimes
the temperaments of the parties may not be conducive to each other, which may result in petty
quarrels and troubles. There is a difference between the ordinary wear and tear of married life
and cruelty.
iii. Refusal to have sexual intercourse
Hindu marriage joins two individuals for life, so that they can pursue dharma (duty),
artha (possessions), and kama (physical desires). It is a union of two individuals as husband and
wife, and is recognized by law. In Hinduism, marriage is followed by traditional Sanjanaals for
consummation.66 Sex plays an important role in marital life and as observed by the Supreme
Court, it cannot be separated from other factors which lent to matrimony a sense of fruition and
fulfillment. Sex is a binding force to keep two spouses together and the denial thereof, by one
spouse to the other would affect mental cruelty. 67 Appellant started refusing for sexual
intercourse with Ashok while avoiding intercourse due to selfish reasons has been held as
cruelty.68
iv. Ignoring household chores and in-laws
Marriage according to Hindu traditions is not only a union of man and a woman rather it
has sociological implications also. Marriage is one of the sixteen samsakars of Hindu
philosophy which establishes relationship between two families which is accompanied by duties
and obligations. Matrimonial obligations have wide ambit which includes respecting each other
and each other’s family also, catering to the needs/demands of each other, caring, sense of duty,

63
SIR DINSHAW FARDUNJI MULLA, MULLA HINDU LAW 922(Satyajeet A. Desai ed., 22nd Lexis Nexis
2016).
64
(1900) 4 CWN 488.
65
J.L. Nanda v L. Nanda A.I.R. 1988 SC 407 (India) .
66
Kaustav Chakraborty & Rajrashi Guha, Indian Concepts on Sexuality, INDIAN JOURNAL OF PSYCHIATRY (
Mar. 17, 2019, 8.30 AM), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3705691/.
67
Abha Gupta v Rakesh Kumar 1995 (1) HLR 573 (P&H) (India); Sangeeta v Hitesh Kumar A.I.R. 2013
Del 83 (India).
68
Prithvipal Singh v Anita A.I.R. 2014 P&H 7 (India).
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discharging household chores, etc. In the present case appellant absolved from her matrimonial
obligations and started ignoring household chores and her in-laws. In OmPrakash Poddar v
Rina Kumari69, wife was misbehaving with in-laws, she refused to do household chores and left
matrimonial home, on this basis divorce was decreed. Moreover, the Court observed that
deserting the husband, avoiding responsibilities, harassing the husband amounts to cruelty70. As
a general rule words of menace or threats would not be regarded as by themselves sufficient to
cause such reasonable apprehension when there is no attempt to carry out the threat71
“Justice consists not in being neutral between right and wrong, but in finding
out the right and upholding it, wherever found, against the wrong.”

-Theodore Roosevelt
The present case is well within the ambit of Section 13 of the Act. As far as the divorce
decree being ex parte is concerned, where the defendant fails to appear before the court of law
on the date fixed for hearing, then, the defendant can be proceeded against ex parte. An ex parte
decree is a decree passed in the absence of the defendant. Where the plaintiff appears and the
defendant does not appear when the suit is called on for hearing then, if it is proved that the
summons was duly served, the court may proceed ex parte, i.e., proceed to take and determine
on evidence, and pass a decree in favor of the plaintiff if a prima facie case/ is made out by him.
Thus, it is humbly submitted before the Hon’ble Court that the ex parte divorce decree
should not be set aside as it has been decided on merits and is well within the limits of law.

69
A.I.R. 2013 Del 209 (India).
70
Smt. Rani Bai @ Shakuntala Verma v Chandrashekar Verma A.I.R. 2011 Chh 93 (India).
71
Nalini Sunder v G.V. Sunder A.I.R. 2003 Kant 86 (India).
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P RAYER

In the light of issues raised, arguments advanced and authorities cited, the respondent
humbly submits that the Hon’ble Court may be pleased to:
(a) Dismiss the appeal petition
(b) Pass any other order, direction or relief that it deems fit in the interest of equity, justice and
good conscience.
For this act of kindness the respondent shall be duty bound forever.

Sd/-

(Counsel for the Respondent)

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