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2nd MDU-CPAS NATIONAL MOOT COURT COMPETITION

2nd MDU-CPAS NATIONAL MOOT COURT COMPETITION

BEFORE THE
HON’BLE HIGH COURT OF DELHI
BEFORE THE HON’BLE HIGH COURT OF DELHI

APPEAL (CIVIL) NO. _________ OF 2019

APPEAL (CIVIL) NO. _________ OF 2019
UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA

NAVEEN SINGH …APPELLANT

1. TARA …PETITIONER
V.
V.
TARA KAPOOR …RESPONDENT
1. NAVEEN …RESPONDENT

WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANT’S COUNSEL

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT COUNSEL
APPEARING ON BEHALF OF THE APPELLANT
APPEARING ON BEHALF OF THE RESPONDENT
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TABLE OF CONTENTS

1. LIST OF ABBREVIATIONS…………………………………………………………...3

2. INDEX OF AUTHORITIES………………………….…………………………………4

I. Books

II. Legislations

III. Cases Referred

3. STATEMENT OF JURISDICTION………………………….………...……………...6

4. STATEMENT OF FACTS………………………………………………………...……7

5. ISSUES RAISED………………………………………………………………………...9

6. SUMMARY OF ARGUMENTS……………...…………………..……………............10

7. ARGUMENTS ADVANCED……………………...………………….…….……….....11

I. The Judgment passed by the Texas Court is valid in India…………….…..………...11

A) Judgment of Texas Court Serves as Res Judicata

II. Decree of annulment of marriage passed by the Texas Court is maintainable…..…..18

III. The divorce petition filed under S. 13 of Hindu Marriage Act is not maintainable…23

8. PRAYER……………………….………………………………………………..………25

Memorial for Respondent

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LIST OF ABBREVIATIONS

1. AIR All India Reporter

2. All Allahbad

3. Art. Article

4. BOMLR Bombay Legal Reporter

5. CWN Calcutta Weekly Notes

6. O.J.R. Other Journal Reporter

7. HMA. Hindu Marriage Act, 1955

8. Hon’ble Honorable

9. Ors. Others

10. Mad. Madras

11. Mys Mysore

12. MLJ Madras Law Journal

13. MP Madhya Pradesh

14. Raj Rajasthan

15. ILR Indian Law Journal

16. SC Supreme Court of India

17. SCC Supreme Court Cases

18. V Versus

19. Vol. Volume

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INDEX OF AUTHORITIES

BOOKS

1. Dinshah Fardunji Mulla, Mulla Hindu Law, 21st edition, Lexi Nexis
2. Ramesh Chandra Nagpal, Modern Hindu Law, 2nd edition, Eastern Book Company
3. Dinshah Fardunji Mulla, Principle of Hindu Law, 22nd edition, Lexis Nexis
4. MN Srinivas, Commentary on Hindu Marriage Act of 1955, 3rd edition, Delhi Law
House
5. Paras Diwan, Modern Hindu Law, 12th edition, Universal Law Publishing
6. Universal’s Concise Commentary of Hindu Law
7. SR Myneni, Code of Civil Procedure & Limitation Act, 3rd edition, Asia Law House
8. Dinshaw Fardungi Mulla, Mulla’s the Code of Civil Procedure, 17th edition, Lexis Nexis
9. Justice CK Takwani, Civil Procedure (CPC) with Limitation Act, 7th edition, Eastern
Book
10. Prof MP Jain, The Code of Civil Procedure (CPC), 3rd edition, Jain Book Agency
11. NH Jhabvala, The Code of Civil Procedure, 1st edition, C. Jamnadas and Co.
12. Monika Srivastava, Code of Civil Procedure, 2018 edition, Taxmann
LEGISLATIONS

1. Hindu Marriage Act, 1955

2. Code of Civil Procedure, 1908
3. Constitution of India
4. Parsi Marriage and Divorce Act
5. Special Marriages Act, 1954

CASES REFERRED

Case Name Citation Footnote

Chettyar v. Pillay AIR 1914 Mad 556 1

Hakkam Singh v. Gammon (India) Ltd. AIR 1971SC 2065 6

Brijlal Ramjidas v. Govindram Gordhandas (1943) 45 BOMLR 7

Seksaria 358

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Case Name Citation Footnote

Lalithamma v. Kanna 1966 Mys 178 10

Clarence v. Rachel AIR 1964 Mys 67 11

Ramji Gupta v. Gopi Krishan Agarwal AIR 2013 SC 3099 12

Sumer Mal v. State of Rajasthan AIR 2000 Raj 1 13

Chloro Controls Pvt Ltd v. Severn Trent Water JT 2010 (10) SC 187 14
Purification Inc

Union of India v. Sasi S AIR 1999 Ker 336 15

L.B v. A.B AIR 1991 Bom 8 16

Pramila Shankar Ghante v. Shankar Vishwanath (2012) 5 Mah LJ 911 21

Ghante

Shantabai v. Tarachand AIR 1966 MP 8 22

Rosaline Rajan v. S.M. Josheph Xavier Lourdarajan AIR 1983 Mad 164 24

Rita Nijhawan v. Balakishan Nijhawan AIR 1973 Del 200 23

Yuvraj Digvijay Singhji v. Yuvrani Pratap Kumari 1969) 2 SCC 279 25

G. v. G LR (1924) AC 349 26

G.v.G 40 LJ Mat 83 27

V. (Wife) v. (1994) 2 Mah LJ 1513 28

Vincent Adolf Godinho v. June Beatrice Rana AIR 1985 Bom 103 29
Godinho

Samar Roy Chowdhury v. Sm. Snigdha Roy AIR 1977 Cal 213 31
Chowdhury

Sucharita Kalsie v. Rajinder Kishore Kalsie 11 (1975) DLT 92 32

Gurbux Singh v. Harminder Kaur 2010 ALL SCR 2665 33

Vidya Viswanathan v. Kartik Balakrishnan (2015) 4 SCC 148 34

Sri Sharma H Kasinath v. Smt Shobha AIR 2010 Kar 168 39

A.Ganesh Babu v. A.P.Arthi 2013 (2) CTC 320 43

Memorial for Respondent

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STATEMENT OF JURISDICTION

The respondent invokes the jurisdiction of the Honorable High Court of Delhi under Article -
227 of the Constitution of India coupled with Sec. 96 of Civil Procedure Code.

Section 96 of The Civil Procedure Code (CPC) states that -

“Appeal from original decree –

(1) Save where otherwise expressly provided in the body of this Code or by any other law
for the time being in force, an appeal shall lie from every decree passed by any Court
exercising original jurisdiction to the Court authorized to hear appeals from the
decisions of such Court.

(2) An appeal may lie form an original decree passed ex parte.

(3) No appeal shall lie from a decree passed by the Court with the consent of parties.

(4) No appeal shall lie, except on a question of law, from a decree in any suit of the
nature cognizable by Court of Small Causes, when the amount or value of the subject-
matter of the original suit does not exceed (ten) thousand rupees.

The respondent most humbly and respectfully submits to the jurisdiction of the Honorable High
Court of Delhi.

The present memorandum sets forth the facts, contentions and arguments in the present case.

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STATEMENT OF FACTS

Background

Naveen Singh, an IT Professional, residing and working in the state of Texas, USA, while his
parents lived in Chandigarh, India, met Tara Kapoor, a doctor working and residing in Delhi,
India, via a matrimonial website called happyweddings.com in August, 2014. After mutual
discussions between the families, it was agreed that Naveen would marry Tara when he will
return to India in January 2015. Accordingly when he returned, on 20th January, 2015 the
wedding was solemnized as per Hindu rites and ceremonies at a hotel in Chandigarh.

After Marriage

The couple spent few days at Naveen’s parent’s home in Chandigarh. The newlyweds bid each
other goodbye as Naveen left for Texas, USA on 27th January 2015 but before leaving he
promised Tara that he would send her the ticket and visa so that they can live together in Texas,
USA. On 2nd March 2015, Naveen happily welcomed his wife at the airport, Texas, USA and
they started living together at their matrimonial home.

Change in Behavior

Naveen began noticing drastic changes in Tara’s behavior; she suddenly became very violent and
withdrew herself from her husband’s company. After withdrawing from her husband’s company,
she began to scream and fight with her husband on daily basis. Tara filed a complaint against her
husband alleging domestic violence and Naveen remained in police custody for a few days.

Cases in Texas Court

Naveen, in May 2015, filed two suits against Tara - one being a petition for annulment of
marriage and another being a suit for damages for malicious prosecution before the Texas Court.
As a counterpart, Tara filed an application for maintenance before the Texas Court.

Tara left for India on 13th July 2015 because of which the Texas court proceeded ex parte against
her and passed a decree of annulment of marriage of the parties on 21st September 2015. Further,
the Court also decreed the suit of damages for malicious prosecution in favor of Naveen
awarding him $1,00,000/- as damages.
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Suit in Indian Court

Tara filed a suit of divorce under Section 13 Hindu Marriage Act on the ground of cruelty and
dowry demand before the Delhi Family Court on 3rd October 2015 against Naveen. Upon receipt
of notice from the Family Court, Naveen took an objection of maintainability and filed an
application for dismissal along with a certified copy of decree of annulment of marriage as
passed by Texas Court.

The Family Court dismissed the application on the ground that the decree of annulment of
marriage granted by Texas Court was without jurisdiction.

Appeal to High Court

Aggrieved by the order of the Family Court, Naveen approached the High Court of Delhi for
relief. Matter is listed for final hearing on 13th April, 2019 in High Court of Delhi.

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ISSUES RAISED

ISSUE I

Whether the judgment passed by the Texas Court is valid in India or not?

ISSUE II

Whether the decree of annulment of marriage passed by Texas court is valid?

ISSUE III

Whether the divorce petition filed by the petitioner under section 13 Hindu Marriage act is
valid?

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SUMMARY OF ARGUMENTS

The judgment passed by the Texas court is valid in India

It is humbly submitted before the Hon’ble court, that the decree of nullity of marriage between
the petitioner and respondent, awarded by the Texas court, stands valid. Keeping in consideration
of the test laid down under Section 13 of the CPC, the competency of the court to preside and
judge upon the matter established. Section 2 and section 19(c) of the Hindu Marriage Act, 1955,
backs the claim of the court being of rightful domicile, taking into purview the extent of
applicability of the act and the last place of habitual residence of the petitioner.

The decree of annulment of marriage passed is maintainable.

It is humbly submitted before the Hon’ble court, that the decree of nullity of marriage,
previously proclaimed by the Texas court, stands. With the conduct of the petitioner
acknowledging the jurisdiction and binding authority of the Texas court, proves it as the rightful
domicile. In accordance to Section 12(1)(a) of the Hindu Marriage act, 1955, a decree of nullity
of marriage can be established upon the grounds of psychological impotency of the petitioner.

The divorce petition filled by the petitioner under S. 13 of Hindu Marriage Act is valid

It is humbly submitted before the Hon’ble court, that the divorce petition filed by the petitioner
under Section 13 of Hindu Marriage Act, 1955, on the alleged grounds are not maintainable
under Section 14 of the same. As observed, the date of presentation of the petition was
premature, for one year had not elapsed since the date of marriage..

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ARGUMENTS ADVANCED

[1] THE JUDGMENT PASSED BY THE TEXAS COURT IS VALID IN INDIA

It is humble submitted to the Hon’ble court that the judgment passed by the Court of Texas
stands on the grounds of a valid and competent jurisdiction. It passes the test laid down under
Section 13 of Code of Civil Procedure which renders certain foreign judgments inconclusive. In
this case the Texas court had both personal and subject-matter jurisdiction to adjudicate upon the
matrimonial matter between the parties.

In the case of Chettyar v. Pillay1, the Madras High Court laid down the circumstances under
which the competency of a foreign court is to be determined. In essence, competency will be
based:

1. where the defendant is a subject of a foreign country in which a judgment has been
obtained; The petitioner had willing married and moved to Texas thus making itself a
subject of the foreign country2
2. Where he was resident in the foreign country when the action began; the wife moved to
Texas with an intention to stay and cohabit with her husband.
3. Where the defendant in the character of plaintiff has selected the forum in which he is
afterwards sued. The petitioner filed a complaint of domestic violence3 and for
maintenance4 before a foreign court trusting the judgment and jurisdiction of the said
country.
4. Where he has voluntarily appeared; the petitioner voluntarily appeared before the court
when the summons were duly served to her.5
5. Where he has contracted to submit himself to the forum in which the judgment was
obtained.

1
AIR 1914 Mad 556
2
Moot Problem p. 1 para 1
3
Moot Problem p.2 para 1
4
Moot Problem p. 2 para 3
5
Moot Problem p. 2 para 2
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If two or more courts have jurisdiction to try the suit, it is open to the parties to select a particular
form and exclude the others. And, hence, the parties may agree among themselves that the suit
should be brought in one of those courts and not in the other, since there is no inherent lack of
jurisdiction in the court. Such an agreement would be legal, valid and enforceable6. ()

Considering the actions taken by the petitioner, in response to the two suits filed by the
respondent in the Texas Court, shows the acknowledgement and agreement of both parties
towards the Texas Court. With having summons served to her and her appearing for the same,
filling an application of maintainability and accepting the interim maintenance fee, the ex parte
decision made against her by the Texas can’t be considered to infringe her rights of natural
justice, allowing the Texas court to be of the rightful domicile.

From these aforementioned points, it becomes clear that the petitioner had willfully submitted
herself to the jurisdiction of the foreign court and their decree would be binding on the parties.

In Brijlal Ramjidas v. Govindram Gordhandas Seksaria7, Supreme Court held that Section
13 speaks not only of “Judgment” but “any matter thereby directly adjudicated upon”. The word
‘any’ clearly shows that all the adjudicative parts of the judgment are equally conclusive.

The Hindu Marriage Act applies to all Hindus8. The act as such does not restrict its application to
Hindus who are Indian Nationals or are domiciled in India.

Section 2 of the Hindu Marriage Act reads as-

“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
(c) To any other person domiciled in the territories to which this Act extends who is not a
Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person
would not have been governed by the Hindu law or by any custom or usage as part of

6
Hakkam Singh v. Gammon (India) Ltd. AIR 1971SC 2065
7
(1943) 45 BOMLR 358
8
Section 2 HMA, 1955
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that law in respect of any of the matters dealt with herein if this Act had not been
passed.”

The domicile has significance in respect to those Hindus who are outside India as is the case with
parties in the present case as per Section 1(2) which states-

“It extends to the whole of India except the State of Jammu and Kashmir, and applies
also to Hindus domiciled in the territories to which this Act extends who are outside the
said territories.”

The Hindu Marriage Act makes no distinction from the jurisdictional point of view between any
matrimonial causes. Jurisdiction rules make no difference between matrimonial cases as per
Section 19 of the Hindu Marriage Act which reads as follows-

“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 solemnized, 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) The petitioner is residing at the time of the presentation of the petition, in a case
where the respondent is at that time, residing outside the territories to which this
Act extends, or has not been heard of as being alive for a period of seven years or
more by those persons who would naturally have heard of him if he were alive.”

Section 19(c) gives rise to the validity of the Texas decree as it held a competent personal
jurisdiction to rule upon the matter. Since both the parties resided in Texas for an extended
period of time with the intention of having a permanent residence there

The Hague Convention on Divorce and Legal Separation recognizes “habitual residence”9 as a
basis of jurisdiction and will not come in the way of any judicial proceedings on the matter of
matrimony. Article 6 of the Hague Convention reads as-

9
Article 2 of Hague Convention
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“Where the respondent has appeared in the proceedings, the authorities of the State in
which recognition of a divorce or legal separation is sought shall be bound by the
findings of fact on which jurisdiction was assumed. The recognition of a divorce or legal
separation shall not be refused –

a) Because the internal law of the State in which such recognition is sought would not
allow divorce or, as the case may be, legal separation upon the same facts, or,

b) Because a law was applied other than that applicable under the rules of private
international law of that State. Without prejudice to such review as may be necessary for
the application of other provisions of this Convention, the authorities of the State in
which recognition of a divorce or legal separation is sought shall not examine the merits
of the decision. ”

Common law has given reception to “habitual residence” stands as a basis for valid jurisdiction
especially in matrimonial matters. This was further strengthened by a series of judicial ruling by
courts

Lalithamma v. Kanna10 case gives a different way of looking at residence, would go a long way
to solve the problem inherent in the type of cases in which this approach has been taken, and
give residence the desired flexibility. The word 'resides' no doubt normally connotes -some
degree of continuity of stay and specially in cases where there is a home or place of residence of
more permanent character a casual or brief residence together may not confer jurisdiction.11

Thus, it is submitted that the “residence” for the purpose of matrimonial jurisdiction of the Indian
courts means:

(i) The place where the parties have set up a matrimonial home or the place where
parties already have a permanent home or abode where they live (or lived
together) is the place where they have their residence.
(ii) In cases where the parties have not set up any matrimonial home, nor do they
have any permanent abode or home, it will be the place where they stay (or

10
AIR 1966 Mys 178
11
Clarence v. Rachel AIR 1964 Mys 67 (SB)
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stayed together), however short the - duration of stay might be (or might have
been).

The Council of Europe on Fundamental Legal Concepts opined upon the factor of residence as a
primary or secondary basis of jurisdiction in matrimonial cases. The respected council stated-

“In determining whether a residence is habitual, account is to be taken of the duration

and the continuity of the residence as well as other factors of a personal or professional
nature which point to durable ties between a person and his residence”

[A] JUDGMENT OF TEXAS COURT SERVES AS RES JUDICATA

It is humbly submitted to the Honorable court that the family court had no jurisdiction to
adjudicate upon the a matrimonial matter between the plaintiff and the respondent on grounds of
the rule of res judicata given under Section 11 of the CPC.

“Res judicata— No Court shall try any suit or issue in which the matter directly and
substantially in issue has been directly and substantially in issue in a former suit between
the same parties, or between parties under whom they or any of them claim, litigating
under the same title, in a Court competent to try such subsequent suit or the suit in which
such issue has been subsequently raised, and has been heard and finally decided by such
Court.”

The section “does not affect the jurisdiction of the Court”; but “operates as a par to the trial”; of
the suit or issue, if the matter in the suit was directly and substantially in issue (and finally
decided) in the previous suit between the same parties litigating under the same title in a Court,
then they are not competent i.e. they become barred to try the subsequent suit in which such
issue has been raised.

It is brought to the notice of the court that even in the present case a valid decree of annulment
has been passed by the Texas court keeping in mind the provision of the Hindu Marriage Act of
1955 and therefore the marriage was ruled upon as nullity and a null marriage cannot be
adjudicated upon again under a petition for divorce. The grounds of res judicata given under
Section 11 of the Code for Civil Procedure stand valid for the question of maintainability put
forward by Naveen in the family court of Delhi. Thus, this doctrine of Res Judicata is a

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fundamental concept based on public policy and private interest. It is conceived in the larger
public interest, which requires that every litigation must come to an end. It therefore, applies to
civil suits, execution proceedings, arbitration proceedings, taxation matters, writ petitions,
administrative orders, interim orders, criminal proceedings, etc.

The Texas court had complete jurisdiction to pass decree on the matter as both the plaintiff and
respondent had submitted themselves to the jurisdiction of the Texas court which stands as a
valid ground for jurisdiction. The Texas Court was competent enough to adjudicate upon the
matrimonial matter between the parties and therefore meeting the requirements of the doctrine
of res judicata. In order to operate as res judicata, the finding must be such, that is disposes of a
matter that is directly and substantially in issue in the former suit, and that the said issue must
have been heard and finally decided by the court trying such suit. A matter which is collaterally
or incidentally in issue for the purpose of deciding a matter which is directly in issue in the case,
cannot be made the basis for a plea of res judicata;12

Section 11 of the Code of Civil Procedure has no doubt some technical aspects for instance the
rule of constructive res judicata may be said to be technical but the same basis of which the said
rule rests is founded on the consideration of public policy13;. The jurisdiction of the court and the
right of a party emerging from Section 9 of the Code of Civil Procedure 1908 is not an absolute
right, but contains inbuilt restrictions. Jurisdiction of the court can be executed by law or by clear
intendment arising from such law14

Under section 9 of the Code of Civil Procedure, the jurisdiction of Civil Court with regard to a
particular matter can be said to be excluded if there is an express provision or by implication it
can be inferred that the jurisdiction is taken away15

12
Ramji Gupta v. Gopi Krishan Agarwal, AIR 2013 SC 3099
13
Sumer Mal v. State of Rajasthan , AIR 2000 Raj 1
14
Chloro Controls Pvt Ltd v. Severn Trent Water Purification Inc JT 2010 (10) SC 187.
15
Union of India v. Sasi S (AIR 1999 Ker 336)
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Basis of Res Judicata

a) Nemo debet lis vaxari pro eadem causa which means that no man should be vexed
(annoyed) twice for the same cause;
b) Interest republicae ut sit finis litium meaning thereby that it is in the interest of the state
that there should be an end to a litigation; and
c) Re judicata pro veritate occipitur which bears the meaning as a judicial decision must be
accepted as correct.

Pre-Requisites for Res Judicata

1) There must be a final judgment;

2) The judgment must be on the merits;
3) The claims must be the same in the first and second suits;
4) The parties in the second action must be the same as those in the first, or have been
represented by a party to the prior action.

All of the above conditions have been meet by the Texas court during the time of adjudication
upon the case of the petitioner and respondent and therefore the family court has no grounds to
try the matter under the doctrine of res judicata as given under Section 11 of the Code of Civil
Procedure.

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[II] THE DECREE OF ANNULMENT OF MARRIAGE PASSED BY TEXAS COURT

IS MAINTAINABLE.

It is humbly submitted, that the earlier decree of annulment provided by the Texas court stands,
considering the petitioner’s conduct towards the suits filled previously by the respondent and the
grounds of nullity being fulfilled, in accordance to the Hindu Marriage act, 1955.

In the case of the Family court dismissing the decree of annulment, as per given by the Texas
court, taking into consideration the Hindu Marriage act, 1955, according to Section 12(1)(a)16, a
decree of nullity can be established upon the grounds of impotency. Section 12(1)(a) can be
bifurcated into,

1. a marriage that hasn’t been consummated yet

2. the non-consummation is due to the impotence of the respondent.17
Prior to the amendment Act 68 of 197618 the Section 12(1)(a) stated that “(a) that the respondent
was impotent at the time of the marriage and continued to be so until the institution of the
proceedings” but now it has been modified into “that the marriage has not been consummated
owing to the impotence of the respondent”. Which clearly shows the intent of the legislature to
encompass each and every type of impotency which is further explained through a series of case
laws and not only physical impotency or a complete lack to reproduce.

Consummation of marriages means full and normal sexual intercourse between married persons.
Full and complete penetration is an essential ingredient of ordinary and complete intercourse.
The degree of sexual satisfaction obtained by the parties is irrelevant. Consummation may be
proved by medical evidence. Impotence means the incapacity to perform full and natural sexual
intercourse. Before the amendment of Clause (a) in 1976, it was necessary to show that the
respondent was impotent at the time of the marriage and continued to be so until the institution
of the proceedings. Now, under the present law, a marriage may be annulled by a decree of

16
(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be
annulled by a decree of nullity on any of the following grounds, namely:-
(a) that the marriage has not been consummated owing to the impotence of the respondent
17
V. Shankar Ram v Mrs. Sukanya (1997) 2 MLJ 170
18
Act 68 of 1976, sec. 6(a)(i)
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nullity on the ground that the marriage has not been consummated owing to the impotence of the
respondent.19

Impotency being the inability to carry out complete, normal sexual intercourse, it may arise due
to a physical defect in either partner or from a psychological barrier amounting to invisible
repugnance on the part of one to sexual relations with that partner. It is not the question of
sterility, but the practical impossibility of consummation of marriage.20 Impotency may be
relative impotency that is a person may be incapable of sexual intercourse with a particular
person only though capable of normal sexual intercourse with another person.

Impotence has been described in Halsbury's Laws of England to be such a state of mental or
physical condition which makes consummation of the marriage a practical impossibility21.
Mental or psychological impotency includes emotional, psychological, or more repugnance or
aversion to the sexual act. Regardless having sound sexual organs, due to the absolute repulsion
towards the consummation of marriage, in the landmark ruling of Shantabai v. Tarachand22,
impotency was held.

With a liberal interpretation of ‘impotence’ made by the court, in ruling case of Rita Nijhawan
v. Balakishan Nijhawan23 , it was held that, “Vigorous and harmonious sexual activity is the
foundation of marriage, and a marriage without sex is anathema.” In Rosaline Rajan v. S.M.
Josheph Xavier Lourdarajan24, the Court held as follows:

“Impotency is an incapacity to consummate marriage and it may be physical or

psychological. Therefore, a mental defect which precludes the consummation of marriage
is as much a ground for annulment as a physical shortcoming. The mere absence of a
physical or anatomical defect is not sufficient to render a marriage binding, and if it can
be shown that sexual life is almost impossible due to some mental apathy which is likely
to be permanent, the court has to annul the marriage.”

19
V. Shankar Ram v Mrs. Sukanya (1997) 2 MLJ 170
20
L.B v. A.B AIR 1991 Bom 8
21
Pramila Shankar Ghante v. Shankar Vishwanath Ghante (2012) 5 Mah LJ 911
22
AIR 1966 MP 8
23
AIR 1973 Del 200
24
AIR 1983 Mad 164
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In the case of Yuvraj Digvijay Singhji v. Yuvrani Pratap Kumari25The Supreme court held –

“the consummation of marriage was not possible because of an invisible repugnance on

the part of the wife and that taking into account the practical impossibility of
consummation, the marriage should be annulled.”

In the same judgment the case G. v. G26 was referred where the consummation of marriage was
not possible because of ‘wife’s refusal due to an invisible repugnance to the act of
consummations, as such, the husband was entitled to a decree of nullity.’

Lord Penzance in the case of G.v.G27, considered a case where the marriage could not be
consummated owing to the hysteria or extreme sensibility of the wife and there was no question
of any structural defect.

The concept of relative impotency which prescribes that a person suffering from no handicap
whatsoever still feels inhibited or incompetent vis-a-vis the particular sexual partner is now an
accepted ground for a decree in a matrimonial Court.28The petitioner might have been physically
capable of establishing sexual relation in the general sense but was apprehensive to consummate
the marriage with the respondent. In Vincent Adolf Godinho's case29 there was sexual
intercourse leading to pregnancy and delivery and still it was held that the wife's impotency had
been proved relatively to the husband.

Even though the burden of proof lies on the petitioner, the petitioner’s violent outbursts, sudden
withdrawal from the respondent’s company, and her atrocities ranging to the extent of a false
complaint filed against the respondent30, alleging domestic violence and causing him to be
detained in police custody, all stem from her frigidity and repugnancy towards the act of
consummation, which makes the petitioner, psychologically impotent.

25
(1969) 2 SCC 279
26
LR (1924) AC 349
27
1871-2 P & D and 287 : 40 LJ Mat 83
28
V. (Wife) v. (1994) 2 Mah LJ 1513
29
Vincent Adolf Godinho v. June Beatrice Rana Godinho AIR 1985 Bom 103
30
Moot Problem p. 2 para 1
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In the case of Samar Roy Chowdhury v. Sm. Snigdha Roy Chowdhury31 it was appealed that

“The respondent the physically, mentally and psychologically impotent of the type known
as quoad hunc or quoad hanc or in other words the respondent is at least impotent to the
petitioner and the marriage cannot be consummated.”

In Sucharita Kalsie v. Rajinder Kishore Kalsie32 the defendant took the defense saying that
the husband was not “universally impotent” but is “impotent quad hanc” and the marriage was
not consummated. It was held that a Court would be justified in annulling a marriage if it was
found that the marriage had not been and could not be consummated by the parties thereto,
though no reason for non-consummation was manifest or apparent. In the same judgment on
paragraph 28 it is stated:

“(28) Thirdly there may be cases where a person may have invincible repugnance to the
act with a particular individual, though generally capable of having sexual union with
others. Where owing to psychological or mental reasons a person is impotent quoad hanc
it is not necessary to show universal impotency”

In the case of Gurbux Singh v. Harminder Kaur33; in paragraph 10 of the judgment, it is held
that “unilateral decision of refusal to have intercourse for considerable period without there
being any physical incapacity or valid reason, may amount to mental cruelty”. Undoubtedly, not
allowing a spouse for a long time to have sexual intercourse by his or her partner, without
sufficient reason, itself amounts to mental cruelty to such a spouse.34

Historically willful refusal to consummate the marriage has been provided as a ground for
divorce. When the Parsi Marriage and Divorce Act was passed in 1936, willful refusal to
consummate the marriage was made a ground for divorce.35 Under Special Marriages Act, 1954
willful refusal of consummation of marriage still a ground for voidable marriage.36 The rationale

31
AIR 1977 Cal 213
32
11 (1975) DLT 92
33
2010 ALL SCR 2665
34
Vidya Viswanathan v. Kartik Balakrishnan (2015) 4 SCC 148
35
Section 32(a) of the Parsi Marriage and Divorce Act, 1936
36
Section 25(i) of the Special Marriages act, 1954
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for making willful refusal as a ground of annulment of marriage has been thus given by English
Law Commission:

“Failure to consummate, whether it be because the respondent is unable or because he is

unwilling to have sexual intercourse, deprives the marriage of what is normally regarded
as one of it essential purposes. Parties would think it strange that the nature of relief
should depend on the court’s decision whether non-consummation was due to the parties’
point of view the relevant fact be that the marriage had never become a complete one. To
tell them that, in the eyes of the law, failure to complete it due to another cause results in
their marriage being dissolved, would seem to them to be a strange result.37”

37
Law Commission, 33rd Report, Para 27(b)
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[III] THE DIVORCE PETITION FILED BY THE PETITIONER UNDER SECTION 13

HINDU MARRIAGE ACT IS NOT VALID

It is humbly submitted that the divorce petition filed by the petitioner under Section 13 of the
Hindu marriage Act, 1955 on the grounds of alleged cruelty and dowry by the petitioner is not
maintainable under Section 14 of the same Act.

Section 14 of the Hindu Marriage Act states –

“No petition for divorce to be presented within one year of marriage.-

(1) Notwithstanding anything contained in this Act, it shall not be competent for any
court to entertain any petition for dissolution of a marriage by a decree of divorce, unless
at the date of the presentation of the petition one year has elapsed since the date of the
marriage:

Provided that the court may, upon application made to it in accordance with such rules
as may be made by the High Court in that behalf , allow a petition to be presented before
one year has elapsed since the date of the marriage on the ground that the case is one of
exceptional hardship to the petitioner or of exceptional depravity on the part of the
respondent, but, if it appears to the court at the hearing of the petition that the petitioner
obtained leave to present the petition by any misrepresentation or concealment of the
nature of the case, the court may, if it pronounces a decree, do so subject to the condition
that the decree shall not have effect until after the expiry of one year from the date of the
marriage or may dismiss the petition without prejudice to any petition which may be
brought after the expiration of the said three years upon the same or substantially the
same facts as those alleged in support of the petition so dismissed.

(2) In disposing of any application under this section for leave to present a petition for
divorce before the expiration of one year from the date of the marriage, the court shall
have regard to the interests of any children of the marriage and to the question whether
there is a reasonable probability of a reconciliation between the parties before the
expiration of the said one year.”

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The idea behind this section is to prevent hasty recourse to law by the spouses without giving
proper and adequate time to adjust themselves and give a trail to their marriage, and give a trial
to their marriage, thus the provision is based on public policy.38

A bare reading of section 14 of the act would leave one with no doubt that it is the mandate of
the legislature that a court should not entertain a petition for dissolution of marriage by a decree
of divorce unless on the date of the presentation of the petition one year has elapsed since the
date of the marriage.39A counterpart to this section can be found in Section 29(1) of the Special
Marriage Act, 195440.

The parties in the present case were married on 20th January, 201541 and the petitioner filed for a
divorce in the Delhi Family court on 3rd October, 201542 which is only 8 months after the
marriage was solemnized. The petitioner cannot argue on the grounds of the proviso stating it to
be the ‘discretion of the court’ to entertain a plea of divorce before twelve months have elapsed
because in the instant case there has been no ‘exceptional hardship’ or ‘exceptional depravity’ as
is the requisite under Section 14.

The Madras High Court in A.Ganesh Babu vs. A.P.Arthi43, held as follows:

“.I take it as an opportunity to mandate all the Courts below concerned that hereafter
whenever any petition for divorce is filed within a period of one year from the date of
marriage, the Courts should invariably return that petition without numbering it and
unless leave is obtained, such petition for divorce should not be entertained.”

38
Meganath v. Susheela AIR 1957 Mad 423
39
Sri Sharma H Kasinath v. Smt Shobha AIR 2010 Kar 168
40
“No petition for divorce shall be presented to the district court 1[unless at the date of the presentation of the
petition one year has passed] since the date of entering the certificate of marriage in the Marriage Certificate Book:
Provided that the district court may, upon application being made to it, allow a petition to be presented 2[before
one year has passed] on the ground that the case is one of exceptional hardship suffered by the petitioner or of
exceptional depravity on the part of the respondent”
41
Moot Problem p. 1 para 1
42
Moot Problem p. 3 para 1
43
2013 (2) CTC 320
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PRAYER

Wherefore, in the lights of the facts stated, issues raised, authorities cited, and arguments
advanced, may the Hon’ble Supreme Court of India be pleased to adjudge and declare that:

1. The decree passed by the Hon’ble Texas is valid and applicable in the Republic of India.
2. The petition filed for divorce by the petitioner is not maintainable since the marriage has
already been annulled.

Or pass any order as it deems fit in the interest of the Respondent to meet the ends of equity,
justice and good conscience.

For this act of kindness, the agents on behalf the Respondent shall duty bound, forever pray.

Respectfully Submitted

Agents on Behalf of the Respondent

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