PUNJABI UNIVERSITY, PATIALA

DEPARTMENT OF LAW

BEFORE THE DISTRICT COURT OF JALANDHAR, PUNJAB

SUNITA

(PETITIONER)

v.

MAHESH

(RESPONDENT)

UNDER SECTION

SECTION 9 OF HINDU MARRIAGE ACT, 1955

&

SECTION 13 OF CIVIL PROCEDURE CODE,1859

SUBMITTED BY: VIRPAL KAUR

ROLL NO. 21241002
LLB SEMESTER 6TH (EVENING BATCH)

MEMORANDUM ON BEHALF OF THE PETITIONER

 DEPARTMENT OF LAW, PUP

TABLE OF CONTENTS

List of Abbreviations

Index of Authorities
Table of Cases
Books
Lexicons
Websites
Statutes

Statement of Jurisdiction

Statement of Facts

Statement of Issues

Summary of Arguments

Arguments Advanced

Issue I
Whether the marriage of Sunita and Mahesh is valid as per the
provisions of the Hindu Marriage Act, 1955?
Issue II
Whether non-contest by wife of divorce petition filed by the
husband in a Foreign Court implied that she had conceded to the
jurisdiction of the Foreign Court?

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Issue III
Whether the principle of Res-Judicata under Section 11 of Code of
Civil Procedure, 1908 is applicable to the proceedings being
initiated in District Court, Jalandar?
Issue IV
Whether the plaintiff proves that the respondent has obtained a decree against
her by “Irretrievably break down of marriage”, is binding on her or not?

Prayer

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LIST OF ABBREVIATIONS
AIR All India Reporter
C.P.C. Code of Civil Procedure
Cas Case
Del Delhi High Court
Ed. Edition
HMA Hindu Marriage Act
Ind Indian
JT Journal Times
LJ Law Journal
MLJ Madras Law Journal
Mad Madras High Court
Mah Maharashtra
n. Foot Note no.
O. Order
p. Page No.
RP Re-Print
SC Supreme Court
SCC Supreme Court Cases
Sec. Section
v. Versus
w.e.f. with effect from

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INDEX OF AUTHORITIES

TABLE OF CASES:
1. Smt. Satya vs. Teja Singh, AIR 1975 SC 105

2. Y. Narasimha Rao and others vs. Y. Venkata Lakshmi and

another, AIR 1991 (3) SCC 451

3. Smt. Anbha vs. Vikas Aggarwal and others, AIR 2003 Del
175

4. Smt. Shilpa Sachdev vs. Shri. Anand Sachdev (Bombay HC)

5. Hemavathi Shivashankar vs Dr Tumkur S Shivashankar on

5 July, 2012

6. Le Mesurier v. Le Mesurier [1895] A.C. 517

7. Sondur Gopal Vs Soundur Rajini (SC)

8. Alka Gupta vs Narendra Kumar Gupta, AIR 2011 SC 9

9. Hayatuddin Haji Shujauddin v. Abdul Gani Abdul Hafiz, 1975 Mah. L.J.
345

10. Forward Construction Company & Ors. v. Prabhat Mandal (Redg.) Another
& Ors., (1986) 1 S.C.C., 100

11. Sheodan Singh v. Smt. Daryao Kumar, A.I.R. 1966 S.C. 1332

12. Ram Gobinda Daw v. Smt. Bhakta Bala Dassi, A.I.R. 1971 S.C. 664

13. Sulochana Amma v. Narayan Nair, J.T. 1993 (5) S.C. 450

14. Ms. Dorothy Thomas vs. Mr. Rex Arul, Mad, M.L.J(2011)

15. Isharani Nirupoma Devi vs Victor Nitendra Narain(96 Ind Cas 598)

MEMORANDUM OF PETITIONER
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BOOKS:
1. Mulla, Hindu Law: (22nd Ed 2016)
2. Dr. Paras Diwan, Family Law: (11th Ed 2018)
3. S. Pattabhiraman, The Code of Civil Procedure, 1908: (4th Ed 1998)
4. Dr. Paras Diwan, Private International Law: (4th Ed 1998)
5. Dr. R. D. Vijayasekhar, The Code of Civil Procedure, 1908: (2nd RP 2015)

LEXICONS:
1. Aiyar, P Ramanath, The Law Lexicon, (2nd Ed 2006)

WEBSITES:
1. https://www.scconline.com

2. https://www.indiakannon.com
3. https://www.casemine.com
4. https://www.findlaw.com
5. https://www.quora.com
6. https://www.lawmirror,com
7. https://www.deprimalaw.com

STATUTES:
1. HINDU MARRIAGE ACT, 1955

2. THE CIVIL PROCEDURE CODE,1860

3. CONSTITUTION LAW

4. PRIVATE INTERNATIONAL LAW

5. INDIAN EVIDENCE ACT

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STATEMENT OF JURISDICTION

The Hon‟ble Court has jurisdiction to try the instant matter under Section 9 of
the Hindu Marriage Act, 1955

Section 9

Sec. 9 RESTITUTION OF CONJUGAL RIGHTS.

When either the husband or the wife has, without reasonable excuse,
withdrawn from the society of other, the aggrieved party may apply, by
petition to the district court, for restitution of conjugal rights and the court,
on being satisfied of the truth of the statements made in such petition and
that there is no legal ground why the application should not be granted, may
decree restitution of conjugal rights accordingly.‟

Section.13

Sec.13 WHEN FOREIGN JUDGEMENT NOT CONCLUSIVE.

A foreign judgement 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 cases;

(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 which such law is applicable;

(d) Where the proceedings in which the judgement was obtained are opposed
to natural justice;

(e) Where it has been obtained by fraud; where it sustains a claim founded on
a breach of any law in force in [India]

Subs. By Act 2 of 1951, sec.3, for “the States” (w.e.f. 1-4-1951)

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STATEMENT OF FACTS
1. On 8th June 2007, Sunita and Mahesh, both resident of Jalandhar, belonging
to Ravidasia community of Punjab, who were Hindus by religion, got married
in Anand Karaj form of marriage (Sikhs Ceremony) and registered as per
Hindu Marriage Act 1955, certified by authorities.

i. On 2008, Mahesh went to England and then moved to Canada on

1stFebruary 2010 and called his wife there on 1st May 2010 along with
the first child.

ii. On 4th February 2011, second child was born then, Mahesh went to
New York on 8th February 2011 and asked his wife to return India.

iii. In New York, Mahesh developed an extra marital affair with a lady,
Elizabeth Prescott.

iv. On January 2012, Sunita expressed her willingness to join Mahesh

but he refused and wanted to dissolve the marriage.

2. On 5th April 2012, Mahesh filed a divorce petition in Trial Court of New
York on the ground has irretrievably broken down. Sunita never
contested these proceedings so Trial Court granted divorce on 10th July
2012 favouring Mahesh making her as ex parte and ordered maintenance
of Rs.50,000 per month. Since he failed to pay maintenance, Sunita
approached Trial Court through letter on 30th July 2012. after the
proceedings warrant of arrest were issued she stated that the ex parte
divorce never binds her and she continues as wife.

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3. On 20th April 2013, Sunita filed a petition under section 9 of HMA, 1955
in District Court of Jalandhar, Mahesh appeared and filed an application
for dismissal of petition without filing any written statement and referred
to the decree of divorce granted by the Trial Court of New York and despite
of notice she did not consent the same not by raising any objection and
deemed to have accepted the jurisdiction of foreign court making the
decree nisi-absolute and estopped from filing present petition.

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STATEMENT OF ISSUES

Issue I

Whether the marriage of Sunita and Mahesh is valid as per the

provisions of the Hindu Marriage Act, 1955?

Issue II
Whether non-contest by wife of divorce petition filed by the
husband in a Foreign Court implied that she had conceded to the
jurisdiction of the Foreign Court?

Issue III
Whether the principle of Res-Judicata under Section 11 of Code of
Civil Procedure, 1908 is applicable to the proceedings being
initiated in District Court, Jalandhar?

Issue IV
Whether the plaintiff proves that the respondent has obtained a
decree against her by “Irretrievably break down of marriage”, is
binding on her or not?

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SUMMARY OF ARGUMENTS

ISSUE I
Whether the marriage of Sunita and Mahesh is valid as per the provisions
of the Hindu Marriage Act, 1955?
It is humbly submitted before this Hon‟ble Court that the marriage between
Sunita and Mahesh is valid under of Hindu Marriage Act, 1955 applies to Hindus
by religion in any of its forms and Hindus within the extended meaning i.e.
Buddhist, Jains or Sikh and, in fact, applies to all such persons domiciled in the
country who are not Muslims, Christians, Parsi or Jew, unless it is proved that
such persons are not governed by the Act under any custom or usage. The Act
also applies to Hindus who domiciled out side the territory of India.(1)

ISSUE II
Whether non-contest by wife of divorce petition filed by the husband in a
Foreign Court implied that she had conceded to the jurisdiction of the
Foreign Court?

It is humbly submitted before this Hon‟ble Court that she had no means to go to
New York as Mahesh was only working onsite. After coming out of shock without
filing petitions she wrote a letter to the New York court that there is no
jurisdiction to grant divorce decree as the grounds of decree was not under the
Hindu Marriage act,1955 and the jurisdiction mentioned in section 19 Hindu
Marriage Act,1955 where the court don‟t fall under the jurisdiction of the court.

1]"Sondur Gopal Vs Sondur Rajini (Supreme Court)"

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ISSUE III
Whether the principle of Res-Judicata under Section 11 of Code of Civil
Procedure, 1908 is applicable to the proceedings being initiated in
District Court, Jalandar?

It is humbly submitted before this Hon‟ble Court that a foreign court is

defined as a court situated out side India and not established or continued by
the authority of the Central Government. And a foreign judgement means a
judgement of foreign court. In other words, a foreign judgement means
adjudication by foreign court upon a matter before it. A Forigen Judgement
can be accepted only when the specified country is reciprocating territory of
India under Section 44A of CPC.

ISSUE IV
Whether the plaintiff proves that the respondent has obtained a decree
against her by “irretrievably break down of marriage is binding on her or
not?
It is humbly submitted before this Hon‟ble Court that the decree has been passed
only on the ground that there remains no reasonable likelihood that the marriage
between the parties can be preserved, and that the marriage is, therefore,
irretrievably broken which is not a provision under the Section 13 of Hindu
Marriage Act, 1955. So she is not binding under the jurisdiction of Foreign Court.
The decree has been passed on the only ground that marriage has been
irretrievably broken down which is not the provision of Hindu Marriage Act.

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ADVANCED ARGUMENTS
ISSUE I
WHETHER THE MARRIAGE OF SUNITA AND MAHESH IS VALID AS PER
THE PROVISIONS OF THE HINDU MARRIAGE ACT, 1955?
It is humbly contented that the marriage between Sunita and Mahesh is valid as
per the Hindu Marriage Act, 1955 as they both are basically hindu‟s even though
the marriage ceremony was through Sikhs culture which is popularly known as
Anand Karaj form. The Hindu marriage Act under section 2 says for whom the
law applies
(1) This Act applies,-
a. to any person who is a Hindu by religion; in any of of its forms
or developments, including a Virashaiva, a Lingayat or a
follower of the Brahmo, Prarthana or Arya Samaj

b. to any person who is a Buddhist, Jaina or Sikh by religion,

and(2)(3)

c. All those persons who are not muslims, Christians, Parsis

or Jews domiciled in India and to whom no other law is
applicable. Persons who are hindu by religion by conversion
and reconversion and hindu by birth The Hindu conceived
of their marriage a sacramental union – a sacrosanct,
permanent, indissoluble and external union. Hindu did not
regard it is a contract but as a tie which once tied cannot be
united. The indissoluble aspect of the Hindu Marriage is
thus expressed by Manu(4) :

“The Husband is declared to be one with the wife. Neither by sale nor by
repudiation is a wife. Released form her husband

[2][Section 2 of HMA]
[3][Rajkumar v. Barbra AIR 1989 Cal 165]
[4]Manusmirit 1 x 45.47

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1.1 HINDU MARRIAGE – A SACRAMENT OR CONTRACT

Under Hindu law, polygamy was recognized and a Hindu Practised
polygamy. The hindu marriage act, 1955, has abolished polygamy and introduced
strict monogamy for all Hindus. A Religious ceremony is still necessary for most
marriages.
According to Hindu Marriage act the marriage without the consent of the
parties is void, and if the consent of a party to marriage is obtained by fraud or
force is voidable.
Further more pro execution humbly contends, that the even though the
marriage was under Sikhs ceremony they are basically Hindu‟s and even it
has been registered by the concerned authorities with consent of parties.
1.2 CONDITIONS TO BE FULFILLED
The Hindu Marriage Act says the conditions to be fulfilled to make
the marriage valid are:
A marriage may be solemnized between any two Hindus, if the following
conditions are fulfilled, namely:
(i) neither party has a spouse living at the time of the marriage;

(ii) at the time of the marriage, neither party,-

a. is incapable of giving a valid consent of it in consequence of
unsoundness of mind; or

b. though capable of giving a valid consent has been suffering

from mental disorder of such a kind or to such an extent as
to be unfit for marriage and the procreation of children; or

c. has been subject to recurrent attacks of insanity or

epilepsy;

(iii) the bridegroom has completed the age of twenty one years and the
bride the age of eighteen years at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship
unless the custom or usage governing each of them permits of a
marriage between the two;

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(v) the parties are not sapindas of each other, unless the custom or
usage governing each of them permits of a marriage between the two;
where both the petitioner and the respondent binded(5)

1.3 HINDU BY RELIGION

The Act was viewed as conservative because it applied to any person

who is Hindu by religion in any of its forms, yet groups other religions into the act
(Jains, Buddhists, or Sikhs) as specified in Article 44 of the Indian(6)

A Marriage is directly registered by the Registrar of Marriage under section 8 of

Hindu Marriage Act-1955 (7)

Further more pro execution humbly contends, that the even though
the marriage was under Sikhs ceremony they are basically Hindu's and even it
has been registered by the concerned authorities with consent of parties.

ISSUE II

WHETHER NON-CONTEST BY WIFE OF DIVORCE PETITION FILED BY THE

HUSBAND IN A FOREIGN COURT IMPLIED THAT SHE HAD CONCEDED TO
THE JURISDICTION OF THE FOREIGN COURT?

It is humbly contented that the wife Sunita to whom the divorce petition which
was given by the foreign court for which she never conceded hence the decree was
under the jurisdiction of the foreign court.

[5] SECTION 5 OF HMA

[6] Department of Revenue, Rehabilitation and Disaster Management Constitution.
[7]”Hindu Court Marriage in Delhi” Courtmarriageindia.org. Retrieved 5 June 2018.

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2.1 COURT TO WHICH PETITION SHALL BE PRESENTED.

Every petition under this Act shall be presented to the district court
within the local limits of whose ordinary original civil jurisdiction-

(i) the marriage was solemnised, or

(ii) the respondent, at the time of the presentation of the petition,

resides, or

(iii) the parties to the marriage last resided together, or

(iv) in case the wife is the petitioner, where she is residing on the date of
presentation of the petition, or (8) (9)

If a marriage is solemnized at a place within territorial limit and at present of

the party reside there only the territorial court have exclusive jurisdiction to deal
with the case. The case cannot be decided by any other court even if the husband
resides outside the territorial limit.

2.2 DID NOT ATTEND OR ACTIVELY PARTICIPATED

The Non – applicant always has an option not to attend nor actively
participate in the foreign court proceedings. This would be taken as, the non-
applicant did not submit to the jurisdiction of the foreign court. This, however,
does not mean that the non-applicant is not even required to be served in the
foreign court proceedings. Non- service would amount to denial of opportunity to
be heard.

[8] Section 9 of HMA

[9][Arjun Singhal V.Pushpa Karvel]

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As the non- applicant did not submit to the jurisdiction, it is further said that
this non-applicant did not chance a judgment in his/her favour. Challenge to
the foreign court decree in such a situation may be entertained to the
jurisdiction and having made submissions before the foreign court, now because
the verdict of the foreign court is against the non-applicant, he is now
challenging the same in the Indian court.

The non – applicant must be served with notice of the foreign court proceedings.
Or else, the proceedings would be taken in law to be a nullity i.e. of no value in
law. If this is a situation, Indian courts are likely to declare the entire foreign
court proceedings as void.

“The judicial Magistrate, First class, Julandar held

by her judgment dated December17, 1966 that the
decree of divorce was not binding on the appellant
as the respondent had not “permanently settled” in
the state of Nevada and that the marriage between
the appellant and the respondent could be
dissolved only under the Hindu Marriage Act, 1955.
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, Julandar,
on the ground that the marriage could be dissolved
only under the Hindu Marriage Act.” [10]

[10][Satya vs Teja Singh 1975 AIR 105, 1975 SCR (2) 97.]

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2.3 LE MESURIER DOCTRINE

The question is framed that for consideration thus: “whether a Hindu

Marriage solemnized within this country can be validly annulled by a decree
of divorce granted by a foreign court”. In one sense, this frame of the
question narrows the controversy by restricting the inquiry to Hindu
marriages. In another, it broadens the inquiry by opening up the larger
question whether marriages solemnized in this country can at all be
dissolved by foreign courts.

“In any case, the High Court did not answer the
question and preferred to rest its decision on the Le
Mesurier doctrine that domicile of the spouses affords
thee only true test of jurisdiction. In order to bring out
the real point in controversy, we would prefer to frame
the question for decision thus: Is the decree of divorce
passed by the Nevada Court in U.S.A., entitled to
recognition in India? The question is a vexed one to
decide and it raises issues that transcend the
immediate interest which the parties have in this
litigation. Marriage and divorce are matters of social
significance.” [11]

2.4 RECOGNITION OF THE LAW OF INDIA

The American court being a foreign court, had no jurisdiction as regards the
matrimonial affairs of the parties, as they continued to be Indian citizens on the
date of divorce granted by the American court and hence, it would not bind the
parties. Further, the first defendant had taken advantage of the absence of the
plaintiff from USA and his sending her to India was with an ulterior motive of
obtaining such decree of divorce without resistance from the plaintiff and

[11] Satya vs Teja Singh 1975 AIR 105 1975, SCR (2)97

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therefore, he had practised fraud on the American Court. Since the decree had
been rendered without recognition of the law of India, which was applicable to the
parties and since the proceedings of a foreign court were not in conformity with
the Hindu Law, the same was opposed to natural justice and was invalid in terms
of Section 13 of the Code of Civil Procedure, 1908 (hereinafter referred to as the
„CPC‟ for brevity).

2.5 EX PARTE DIVORCE

An ex parte divorce happens when only one spouse participates in the court
proceedings. In us, a state has the authority to determine the marital status of
that person (who lives in that state) even if it does not have jurisdiction over the
other spouse. Usually the spouse who doesn‟t live in the country where the
divorce was filed would not be subject to its jurisdiction unless a status exception
is present.
Many a times foreign court grant ex-parte divorce deemed with one party
being unrepresented and thus unheard. Often the parties are unaware about
these proceeding too. Due to various practical and financial difficulties; a party
many not be able to contest the case. Generally, the wives deprived of
maintenance and matrimonial property in these cases. [12]

ISSUE III
Whether the principle of Res-Judicata under Section 11 of Code of Civil
Procedure, 1908 is applicable to the proceedings being initiated in District
Court, Jalandar?
It is humbly contented that the conditions of Res Judicata cannot be
applied on the ground because the foreign court which has passed the decree
don‟t come under the jurisdiction of Indian court.

3.1 BAR OF RES JUDICATA

The Appellants could have, amended their first Application and taken these
pleas in that Application itself. Had they amended the first Application in the

[12]Hemavathi Shivashankar vs Dr Tumkur S Shivashankar on 5 July, 2012.

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foreign court there would be no bar of res-judicata or constructive res-judicata. If

that be so one fails to understand how the first Application was barred by
principles of res-judicata or constructive res-judicata. Even to be remembered
that the Orders were passed not by hearing the application of on side. Under
such circumstances no question arises of their being any res-judicata or
constructive res-judicata.

3.2 CONDITIONS OF RES JUDICATA

This principle is founded on justice, equity and good conscience there are three
legal principles which explain the three object of res judicata
1. No man should be vexed twice for the same cause
2. In the interest of the state and there should be an end to litigation.
3, A judicial decision must be accepted as correct.
Thus res judicata is dealt under Section 11 of the Code of Civil Procedure,
1908 according to this Section once a matter is finally decided by the competent
court; no party can be permitted to reopen it in a subsequent litigation this is
also known as rule of conclusiveness.
To constitute a matter as res judicata under Section 11, CPC the following
conditions must be satisfied-
(i) The matter must be directly and substantially in issue in the former suit
and in the latter suit,
(ii) The prior suit should be between the same parties or persons claiming
under them,
(iii) The parties should have litigated under the same title in the earlier
suit(13)
(iv) The Court which determined the earlier suit must be competent to try
the later suit
(v) The question directly and substantially in issue in the subsequent suit
should have been heard and finally decided in the earlier suit (14)

[13](Subject to Explanation 8 of Section 11 CPC),

[14](Alka Gupta vs Narendra Kumar Gupta, AIR 2011 SC 9).

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3.3 NECESSARY CONDITIONS FOR RES JUDICATA:

But as supra the conditions and explanation for the application are:
It will thus be clear from the above that the following conditions must be satisfied
to constitute a bar of res judicata:

1. The matter directly and substantially in issue in the subsequent suit

must be the same matter which was directly and subsequently in issue,
either actually or constructively, in the former suit.

In order that the condition may be fulfilled it must have been alleged by one party
and either denied or admitted expressly or by necessary implication by the order.
It is, however, not necessary that a separate issue should have been raised upon
it. It is enough if the matter was in issue in substance in the former suit as also
in the subsequent suit.

It is essential that the matter must be in issue directly and substantially in the
suit under trial and not collaterally or incidentally. The expression “collaterally or
incidentally in issue” means only ancillary to the direct and substantial issue and
refers to a matter in respect of which no relief is claimed but which is put in issue
to enable the court to adjudicate upon the matter which is directly and
substantially in issue.

Explanation IV to Section 11 says that any matter which might and ought to have
been made a ground of defence or attack in such former suit shall be deemed to
have been a matter directly and substantially in issue in such suit.

Where no finding was given on an issue in the previous suit the judgment therein
cannot operate as res judicata in a subsequent suit, on the ground that the
finding must be assumed to have been given as an inference. Explanation IV to
S.11, C.P.C., would be of no assistance in such a case thus Res Judicata never
applies in this case. [15]

[15](Hayatuddin Haji Shujauddin v. Abdul Gani Abdul Hafiz, 1975 Mah. L.J. 345)

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2. The second essential condition to constitute the bar of res judicata is

that the former suit must have been a suit between the same parties or
between parties under whom they or any of them claim. Res judicata not
only affects the parties to the suit, but his privies, i.e., persons claiming
under them.

Explanation VI to Section 11 says that where persons litigate bona fide in respect
of a public right or of a private right claimed in common for themselves and
others, all persons interested in such right shall, for the purpose of this section,
be deemed to claim under the person so litigating. It thus refers to cases in which
a decision in a suit may operate as res judicata against persons not expressly
named as parties to the suit.

The possibility of litigation to foreclose any further enquiry into a matter in which
an enquiry is necessary in the interest of public interest cannot be ruled out so
res judicata is not appliciable. [16]

3. The third essential condition to constitute the bar of res judicata is that
the parties must have litigated under the same title in the former suit. The
expression “same title” means in the same capacity.

Thus, a suit brought by a person to recover possession from a stranger or math

property claiming it as heir of the deceased Mahunt is not bar to a suit by him as
manager of the math if the first suit is dismissed on his failure to produce the
succession certificate, for the two suits arise under different capacities so it never
applies.

4. The fourth condition is that the court which decided the former suit
must have been a court competent to try the subsequent suit or the suit in
which such issue is subsequently raised.

In its true conception a decree in a previous suit could not be pleaded as res
judicata in a subsequent suit unless the judge by whom it was made has
jurisdiction to try and decide not only the particular matter in issue in the former
[16][Forward Construction Company & Ors. v. Prabhat Mandal (Redg.) Another & Ors., (1986) 1
S.C.C., 100].

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suit but also the subsequent suit itself in which the issue is subsequently raised.

The effect of this provision has greatly been modified by insertion of Explanation
VIII to S. 11 by the Amendment Act, 1976, which provides that an issue heard
and finally decided by a court of limited jurisdiction, competent to decide such
issue, shall operate as res judicata in a subsequent suit, notwithstanding that
such court of limited jurisdiction was not competent to try such subsequent suit
or the suit in which such issue has been subsequently raised so this is not
applicable, it not a former court the ground of res judicata is not applicable.

5. The last condition is that the matter directly and substantially in issue in
the subsequent suit must have been heard and finally decided by the court
in the first suit. The section requires that there should be a final decision
on which the court has exercised its judicial mind.

A matter will be said to have been heard and finally decided notwithstanding that
the former suit was disposed of ex parte or by dismissal under O. 17, rule 3, le.,
for failure to produce evidence when time was allowed to do so or by a decree or
an award or by dismissal owing to the plaintiffs failure to adduce evidence at the
hearing.

Then the determination in the former suit must have been necessary to the
determination of that suit. It is the right of appeal that indicates whether a
finding was necessary or not. A finding on an issue cannot be said to be
necessary to the decision of a suit unless the decision was based upon that
finding.

The court however also finds that land was not common land. This second finding
was irrelevant to the disposal of the suit and does not operate as res judicata so
as to preclude B from raising the same contention in a subsequent suit, the
reason being that A‟s suit having been dismissed, B could not have appealed from
the finding that the land was not common land.

Where a decision is given on the merits by the trial court and the matter is taken
in appeal and the appeal is dismissed on some preliminary ground, like limitation

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or default in printing, such dismissal by an appellate court has the effect of

confirming the decision of the trial court on merits and it amounts to the appeal
being heard and finally decided on the merits whatever may be the ground for
dismissal of the appeal. [17].

It is based on public policy as well as private justice. It would apply, therefore, to

all judicial proceedings whether civil or otherwise. It equally applies to all quasi-
judicial proceedings of the tribunals other than the civil courts so it is not
applicable. [18]

Therefore according to the principle of res judicata under Section 11 of Civil

Procedure Code,1908 is not applicable according to the proceedings, which were
been initiated by the plaintiff on her part in the District Court, Jalandhar, India.

Hence there is no Bi-lateral treaty between New York and India and thus
the principle of res judicata is not applicable to the above proceeding which have
been initiated by the plaintiff Sunita in the District court of Jalandhar.

ISSUE IV
WHETHER THE PLAINTIFF PROVES THAT THE RESPONDENT HAS
OBTAINED A DECREE AGAINST HER BY “IRRETRIEVABLY BREAK DOWN OF
MARRIAGE”, IS BINDING ON HER OR NOT?
It is humbly submitted that the decree which was been obtained by the
Respondent Mahesh against the plaintiff Sunita on “Irretrievable break down of
marriage” for which the plaintiff has to be contended are not binding her.

4.1 IRRETRIEVABLY BREAK DOWN

The decree which has been passed on the above said grounds does not falls
under the provisions [19] of Hindu Marriage Act,1955 therefore

[17]Sheodan Singh v. Smt. Daryao Kumar, A.I.R. 1966 S.C. 1332 and Ram Gobinda Daw v. Smt.
Bhakta Bala Dassi, A.I.R. 1971 S.C. 664.

[18] Sulochana Amma v. Narayan Nair, J.T. 1993 (5) S.C. 450.

[19][Section 13]

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 DEPARTMENT OF LAW, PUP

the marriage is preserved. Thus the ground of divorce in the decision of the
foreign court should be a ground available under Hindu Marriage Act,1955 for
instance, if the ground of foreign decree was cruelty on the applicant, this would
be acceptable, as “Cruelty” is a stated ground under the Hindu Marriage Act,
1955 but the same cannot be set for “Irretrievable break down of marriage”,as
this is not the ground under the Hindu Marriage Act,1955.
4.2 WHEN SETTLED ABROAD
In the above said ground Indian courts were confronted with situations
wherein Hindu couples married in India as per Hindu Law, settled in a foreign
land, develop matrimonial disputes and approach a foreign court. This situation
demanded the Indian courts to determine whether the decrees passed by the
foreign court as a consequence of the matrimonial disputes between the Hindu
couples settled abroad, had any efficacy in India.
4.3 COMITY OF COURTS
Thus this is much briefed in the concept of “Comity of Courts” which means
This means that courts in various countries grant probity to decrees of foreign
courts. The understanding being, the courts all over the world adjudicate the
rights of the parties and therefore, show mutual respect. This principle was first
laid by the Court of England and subsequently approved by the Supreme Court of
India [20]

Hence it is the duty of all courts in all countries to do all they can to ensure
that the wrongdoer does not gain an advantage by his wrongdoing.
4.4 CONSEQUENCES OF A FOREIGN DECREE OF DIVORCE BEING HELD AS
INVALID
Respondent cannot sit with the comfort that he has a decree for divorce from
a foreign court. Consequences may appear soon thereafter or maybe years later.
Thus the plaintiff may apply for its cancellation in the Indian court.

[20]Elizabeth Dinshaw v. Arvand M. Dinshaw

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 DEPARTMENT OF LAW, PUP

4.5 CONSEQUENCES
There can be little comfort from the fact that the foreign court decree was
passed and some time has elapsed or that there is inaction of the opposite side.
Consequences may appear then or several years later. Thus concluded that the
above discussion only shows how complicated the position is regarding the
validity of a foreign court decree of divorce. It can perhaps be stated that a Hindu
couple married in India would be well advised to seek a divorce from an Indian
court only.

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 DEPARTMENT OF LAW, PUP

PRAYER

Wherefore, in light of the issue raised, arguments advanced and authorities

cited, may this Hon'ble court be pleased to:

1. direct the respondent to restitute the Conjugal rights of the petitioner

thereby the respondent to live along with the petitioner; and

2. direct that due to non-reciprocating territory the decree passed by New

York is not applicable
AND/OR
Pass such further orders as this Hon’ble court may deem proper and thus
render justice.

All of which is most humbly and respectfully submitted

Place: Jalandhar s/d

Date : 20th March 2024

1.
2.
3.

COUNSEL FOR PETITIONER

VIRPAL KAUR

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