MEMORIAL ON BEHALF OF THE APPELLANT

TABLE OF CONTENTS

1
 MEMORIAL ON BEHALF OF THE APPELLANT

LIST OF ABBREVIATIONS

ABBREVIATION EXPANSION

2
 MEMORIAL ON BEHALF OF THE APPELLANT

STATEMENT OF JURISDICTION

It is humbly submitted that the appellant has approached the Hon’ble High Court of Delhi
invoking its jurisdiction under

3
MEMORIAL ON BEHALF OF THE APPELLANT

4
 MEMORIAL ON BEHALF OF THE APPELLANT

INDEX OF AUTHORITIES

5
 MEMORIAL ON BEHALF OF THE APPELLANT

STATEMENT OF FACTS

6
 MEMORIAL ON BEHALF OF THE APPELLANT

ISSUES RAISED

I. WHETHER THE EX PARTE DIVORCE GRANTED BY THE FAMILY COURT

COULD BE SET ASIDE OR NOT?

7
 MEMORIAL ON BEHALF OF THE APPELLANT

SUMMARY OF ARGUMENTS

1. WHETHER THE EX PARTE DIVORCE GRANTED BY THE FAMILY COURT

COULD BE SET ASIDE OR NOT?

8
 MEMORIAL ON BEHALF OF THE APPELLANT

ARGUMENTS ADVANCED

1. WHETHER THE EX- PARTE DIVORCE GRANTED BY THE FAMILY COURT

COULD BE SET ASIDE OR NOT?

1.1 Summonses were not duly served:

1. It is humbly submitted on behalf of the appellants that the summons were not properly
served because of which the appellant had no notice whatsoever of the proceedings.

2. In the instant case, the respondent gave the address to the court for service of summonses.
The court when served the notice to that particular address, no special action from the side
of appellant came through, because the address which was given by the respondent to the
court was completely false and he already knew about the original location of the
appellant’s residence.

3. Therefore it is now clearly visible by the very fact of issuance of summonses at wrong
address, that the respondent willfully and having a malafide intention, gave the false
address.

9
 MEMORIAL ON BEHALF OF THE APPELLANT

4. Rule 17 Order V of Code of Civil Procedure 1908 talks about "Procedure when
defendant refuses to accept service, or cannot he found"1. It is the duty of the serving
officer to affix a copy of summons on the outer door or some conspicuous part of the
house and return the original to the court with a report annexed that he has affixed a copy
of such summon.

5. But in the instant case nothing which is contained in the Rule 17 Order V of Code of Civil
Procedure 1908, had ever been done by the serving officer which clearly points out the
judicial error or the error of law on the behalf of the court itself. It was the duty or
procedure which had to be followed by the court which it didn’t exercise.

6. Hon’ble Division Bench in Maganti Krishna Durga Vs. Maganti Anil Kumar – 2015 (5)
ALT 346 (D.B.), observed that Where the husband obtains a decree of divorce ex parte by
practising fraud, husband cannot take advantage of Section 15 of Hindu Marriage Act and
remarry. Similarly, ex parte decree against defendant has to be set aside, if he satisfies
Court that summons had not been duly served or he was prevented by sufficient cause
from appearing before Court when suit was called on for hearing.

7. In the present case, as the application for condonation of delay has been accepted by the
appellate court, it is already proved before this Honb’le Court that those summonses never
ever came into the eyes of the appellant. Therefore the returned summonses having the
mark on it as “refused to accept” were clearly not signed or marked by the appellant or any

1
“Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement,
or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, who is
absent from his residence at the time when service is sought to be effected on him at his residence and there
is no likelihood of his being found at the residence within a reasonable time and there is no agent empowered
to accept service of the summons on his behalf, nor any other person on whom service can be made, the
serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the
house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall
then return the original to the Court from which it was issued, with a report endorsed thereon or annexed
thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and
address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.

10
 MEMORIAL ON BEHALF OF THE APPELLANT

one of her family as she was not residing at that particular address where those summonses
were issued.

8. Also in Rule 20 Order V of Code of Civil Procedure 1908, which talks about the
"Substituted services"2,

9. All in all there it is clearly evident from the above rules and orders which establishes the
proper process for issuance of summonses, had never been followed by the family court
and a strong judicial error on the part of the court could be clearly seen.

10. Thus, it is evident from the very facts that husband maliciously wanted to issue those
summonses there at that location only, so that the appellant would never get to know about
the proceedings and he would obtain a decree in his favour. It was clearly a willfully drawn
scenario by the respondent to embrangle or mislead the court by providing the wrong
address.

2
(1) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way
for the purpose of avoiding service, or that for any other reason the summons cannot be served in the
ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some
conspicuous place in the Court-house, and also upon some conspicuous part of the house (if any) in which
the defendant is known to have last resided or carried on business or personally worked for gain, or in such
other manner as the Court thinks fit.
(1A) Where the Court acting under sub-rule (1) orders service by an advertisement in a newspaper, the
newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have
actually and voluntarily resided, carried on business or personally worked for gain.

11
 MEMORIAL ON BEHALF OF THE APPELLANT

1.2 No sufficient ground of ex parte divorce.

11. It is humbly submitted that after the passing of decree of restitution of conjugal rights;
though it was itself into the many judicial errors, the family court passed the ex parte
decree for divorce by considering a constructive notice.

12. Order IX, Rule 13, C.P.C. says that “The only two grounds mentioned in the above rule for
setting aside the ex parte order are that the defendant had not been actually served with the
summons of the suit or, in spite of service, the defendant was prevented by any sufficient
cause from appearing at the date of hearing.”

13. In the case, the court proceeded with the matter believing that the appellant had the
constructive notice of the same and granted the decree ex-parte on the basis of evidence
given by Sushil. This is a clear cut violation of the Principle of Audi Alteram Partem.

14. In Rabindra Singh V. Financial Commr. Coop., An ex parte decree was passed against
the defendant who was residing in foreign country for the past 25 years and has never
received any notice though the plaintiff had knowledge of his correct address. Summonses
were affected to the village address. The court held that ex parte decree passed in the event
of non-appearance of the defendant without providing an opportunity of hearing to him
caused prejudice to defendant and it is against the principle of natural justice.

15. The principle of audi alteram partem is the basic concept of the principle of natural justice.
The omnipotency inherent in the doctrine is that no one should be condemned unheard. In
the field of administrative action, this principle has been applied to ensure fair play and
justice to affected persons. The expression audi alteram partem simply implies that a
person must be given an opportunity to defend himself. This principle is a sine qua non of
every civilized society. The rule of fair hearing is a code of procedure, and hence covers

12
 MEMORIAL ON BEHALF OF THE APPELLANT

every stage through which an administrative adjudication passes, starting from notice to
final determination.3

16. If the order is passed by the authority without providing the reasonable opportunity of
being heard to the person affected by it adversely will be invalid and must be set aside as
in the cases of Harbans Lal v. Commissioner4, National Central Co-operative Bank v. Ajay
Kumar5 and Fateh Singh v. State of Rajasthan.6

17. Similarly in Maneka Gandhi v. Union of India, SC opined that Art 14 is an authority for
the proposition that the principles of natural justice are an integral part of the guarantee of
equality assured by Art. 14 an order depriving a person of his civil right passed without
affording him an opportunity of being heard suffers from the vice of violation of natural
justice.

18. Therefore, in the present case, as the court proceeded the matter in the belief that the
appellant had constructive notice and was not decided on merits, it is a violation of
principle of natural justice as enshrined in the Constitution. Thus, the order of the trial
court is liable to be set aside.

19. Order 9 rule 6 establishes two principles7:

3
http://www.legalservicesindia.com/article/1860/Audi-Alterem-Partem-Right-to-fair-hearing.html
4
A.I.R. 1994 S.C. 39
5
A.I.R. 1995 Raj. 15 35
6
(1968) S.C. [C.A. 1362/67 dt. 16.(J2.1968] 39

7
6. Procedure when only plaintiff appears.- (1) Where the plaintiff appears and the defendant does not
appear when the suit is called on for hearing, then

(a) When summons duly served—lf it is proved that the summons was duly served, the court may make an
Order that the suit be heard ex parte;

(b) When summons not duly served—if it is not proved that the summons was duly served, the court shall
direct a second summons to be issued and served on the defendant;

13
 MEMORIAL ON BEHALF OF THE APPELLANT

20. If dealing with the 6(a) - the summonses were not duly served which has already been
considered by this Hon’ble Court in the application by accepting the issue of wrong
address.

21. Furthermore, the family court never ever gave any further summonses in the entire process
right from the very beginning petition of divorce filed by the husband and in addition to
that, proceeded with the matter considering a constructive notice and decided the case ex-
parte only on the evidence given by Sushil without any sufficient cause which is a grave
judicial error on the part of family court.

22. In Central Electricity Regulatory Commission Vs. National Hydroelectric Power

Corporation Ltd., (2010) 10 SCC 280], permitted the service of Notice by email along
with the ordinary mode of serving notice. The family court could have issued an email to
the appellant in case on non-appearance of the appellant but the notice was never served
through any other means.

23. Thus in the instant case since the service of summons were sent at the wrong address given
maliciously by the husband himself and this aspect is already concluded in the application
for condonation of delay which has been accepted, it could be clearly pointed out that there
is also a fallacy in the claim for divorce as this entire scenario was created by the husband
to divorce his wife and to marry another woman in order to fulfill is mother.s wish to get a
grandson. The respondent just used the restitution of conjugal rights as a helping hand for
him to get directly towards the road for divorce without any hurdles and by just misleading
the court.

24. Thus, it is humbly submitted by the counsel for the appellant that as the summons were not
served properly and the case was proceeded without giving notice to the party. It is an
inherent principle that a case cannot be initiated without issuing summons. Thus the ex-
parte decree of divorce is liable to be set aside as basic procedure was not followed by the
court and the decree was violative of principle of natural justice.

14
MEMORIAL ON BEHALF OF THE APPELLANT

15
 MEMORIAL ON BEHALF OF THE APPELLANT

PRAYER FOR RELIEF

16