MOOT COURT, HINDU LAW

Session: 2019-20

BEFORE

THE DISTRICT COURT OF GAYA

UNDER § 9 OF THE HINDU MARRIAGE ACT, 1955

IN THE MATTER of

POOJA
(Petitioner)

v/s.

ANAND
(Respondent)

MOHD YUSUF
17BALLB023
GK-3467

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

 TABLE OF CONTENTS

TABLE OF ABBREVIATIONS………………………………………………………..…… iii

INDEX OF AUTHORITIES………………………………………………………………..iv, v

STATEMENT OF JURISDICTION…………………………………………………………..vi

STATEMENT OF FACTS…………………………………………………………………...vii

STATEMENT OF ISSUES………………………………………………………………….viii

SUMMARY OF ARGUMENTS……………………………………………………………...ix

ARGUMENTS ADVANCED

1. WHETHER THE PETITION OF RESTITUTION OF CONJUGAL RIGHTS BY POOJA, IS

MAINTAINABLE OR NOT?...............................................................................................1

A) ANAND HAD WITHDRAWN WITHOUT REASONABLE CAUSE AND MARRIAGE NOT

IRRETRIEVABLY BROKEN DOWN……………………………………………………….1

B) LEGAL GROUNDS ON WHICH DECREE TO BE GRANTED……………………………...3

2. WHETHER THE PRINCIPLE OF RES-JUDICATA UNDER SECTION 11 OF THE CODE

OF CIVIL PROCEDURE, 1908 IS APPLICABLE TO THE SUIT BEING INITIATED IN

DISTRICT COURT, GAYA?..............................................................................................5

A) PRESENT MATTER NOT DIRECTLY AND SUBSTANTIALLY IN ISSUE IN THE FOREIGN

SUIT……………………………………………………………………………………5

B) THE TRIAL COURT OF NEW YORK NOT COMPETENT…………………………………7

3. WHETHER NON-CONTEST BY THE PETITIONER IN DIVORCE PETITION FILED BY

THE RESPONDENT IN FOREIGN COURT IMPLY THAT SHE HAD CONCEDED TO THE

JURISDICTION OF THE FOREIGN COURT?......................................................................8

i
 A) THE FOREIGN DECREE NOT GIVEN ON MERIT………………………………………..9

B) THE DECREE IS OPPOSED TO PRINCIPLE OF NATURAL JUSTICE………………………9

PRAYER……………………………………………………………………………………..11

ii
 TABLE OF ABBREVIATIONS

¶ PAGE NUMBER

§ SECTION

& AND

CPC THE CODE OF CIVIL PROCEDURE

ID PREVIOUS CITATION

iii
 INDEX OF AUTHORITIES

CASES
o Krishna Devi v. Addl. Civil Judge, MANU/UP/0146/1985…………………...………..2

o Bhavana Advani v. Manohar Advani, MANU/MP/0026/1992………………………...2

o Nirmala Devi v. Ved Prakash, MANU/HP/0001/1993………………………………...2

o Geeta Jagdish Mangtani v. Jagdish Mangtani, MANU/SC/0583/2005…………….….2

o Firm Srinivas Ram Kumar v. Mahabir Prasad, MANU/SC/0021/1951…………….…2

o Baldev Raj v. Bimla Sharma MANU/HP/0277/2005…………………………………..2

o Alka Gupta v. Narender Kumar Gupta MANU/SC/0793/2010……………………..…5

o N Suresh Nathan v UOI, MANU/SC/0279/2010…………………………………….…6

o DK Enterprises v Employees State Insurance Corpn, MANU/DE/0307/2009……...…6

o Union of India v. Pramod Gupta, MANU/SC/0549/2005……………………………...6

o Isher Singh v Sarwan Singh, MANU/SC/0345/1964…………………………………..6

o Sajjadnashin Syed Md BE Edr v Musa Dadabhai Ummer, MANU/SC/0122/2000……6

o Narayani v Durgalal, MANU/RH/0025/1968…………………………………………6

o Laxman v Saraswathi, MANU/MH/0045/1959………………………………………..6

o Laxman Prasad v CIT, MANU/UP/0054/1963………………………………………...6

o Addl Collector of Customs v Best and Co, MANU/SC/0189/1966……………………..7

o Ram Nag v State of Orissa, MANU/OR/0172/2008…………………………………....7

o Escorts Farms Ltd v Commissioner KD Nainital, MANU/SC/0144/2004……………..7

o Bhavesh Jayanti Lakhani v State of Maharashtra, MANU/SC/1410/2009…………….8

o Satya v Teja Singh, MANU/SC/0212/1974…………………………………………….8

o I&G Investment Trust v. Raja of Khalikote, MANU/WB/0056/1952……………..……9

o KB Walker v Gladys P Walker, MANU/RA/0081/1935………………………….…….9

o Vishwanathan v Abdul Mazid, MANU/SC/0038/1962………………………………...9

iv
 o Ponnuswamy v Periasami Pillai, MANU/TN/0532/1978…………………………….10

BOOKS
o Mulla, Hindu Law, 21st edn. Part 2………………………………………………..……3
o MP JAIN, The Code of Civil Procedure including Limitation Act 1963, 5th
edn………………………………………………………………………………..…7, 9

LEGISLATIONS
o The Hindu Marriage Act, 1955………………………………….……………………..1
o The Code of Civil Procedure, 1908…………………………………………….………5
o The Marriage Laws (Amendment) Bill, 2010………………………………………….3

WEBSITES
o https://advance.lexis.com/firsttime?crid=2dc850e6-0073-443b-a865-67d1e1a98db2
o https://www.manupatrafast.com/pers/Personalized.aspx
o https://heinonline.org/HOL/Welcome

v
 STATEMENT OF JURISDICTION

The subject matter is before District Court of Gaya filed by petitioner under Section 9 of The
Hindu Marriage Act 1955. The petitioner most humbly and respectfully submits to the
jurisdiction of this Court.

vi
 STATEMENT OF FACTS

INTRODUCTION
Pooja and Anand, resident of Gaya got married under Hindu Marriage Act 1955. Two children
were born in the year 2007 and 2010 respectively. In February 2010, Anand went to New York
and asked Pooja to reside in Gaya India. Pooja along with her children two children started
living in India. Anand severed all his contacts with Pooja after it as he has developed extra
marital affair with lady named Maria Prescott.

PETITION IN TRIAL COURT OF NEW YORK

In April 2011, Anand filed a petition for divorce in Trial Court of New York on the ground that
his marriage has irretrievably broken down and got ex parte decree in favour. Pooja could not
contest these proceedings, she having no means to go to New York. Meanwhile in July 2011,
the Trail Court of New York granted a divorce decree in favour of Anand. Further, the court
ordered that the husband would pay to the wife and children an amount of Rs. 50,000 per month
for their maintenance. Since Anand failed to pay maintenance to wife and children, Pooja
approached the Trial Court of New York through a letter and prayed that she be provided legal
aid. Thereafter, proceedings were initiated and warrants of arrest were issued against Mahesh.
She further said that the ex parte decree of divorce obtained by the husband was not binding
on her and was illegal and that she continues to be the wife of Pooja.

PETITION IN DISTRICT COURT OF GAYA

In April 2012, Pooja filed a petition under Section 9 of the Hindu Marriage Act, 1955 for
Restitution of Conjugal Rights in the District Court, Gaya, Anand appeared in the court and
filed an application for dismissal of petition. He did not file any written statement and he
referred to the decree of divorce granted by the Trial Court of New York and said that despite
of notice, Pooja did not consent the same and by not raising any objection she is deemed to
have accepted the jurisdiction of Foreign Court in trying the petition and thus making the decree
nisi-absolute by the Foreign Court and is thus estopped from filing the present petition (Under
Section 11 read with Section 151 of Code of Civil Procedure, 1908).

vii
 STATEMENT OF ISSUES

1. WHETHER THE PETITION OF RESTITUTION OF CONJUGAL RIGHTS BY POOJA, IS

MAINTAINABLE OR NOT?

2. WHETHER THE PRINCIPLE OF RES-JUDICATA UNDER SECTION 11 OF THE CODE OF

CIVIL PROCEDURE, 1908 IS APPLICABLE TO THE SUIT BEING INITIATED IN DISTRICT
COURT, GAYA?

3. WHETHER NON-CONTEST BY THE PETITIONER IN DIVORCE PETITION FILED BY THE

RESPONDENT IN FOREIGN COURT IMPLY THAT SHE HAD CONCEDED TO THE

JURISDICTION OF THE FOREIGN COURT?

viii
 SUMMARY OF ARGUMENTS

1. WHETHER THE PETITION OF RESTITUTION OF CONJUGAL RIGHTS BY POOJA, IS

MAINTAINABLE OR NOT?

The petition for restitution of Conjugal Rights under Section 9 of The Hindu Marriage Act
1955 is maintainable as the marriage had not irretrievably broken down. The husband had not
withdrawn specifying any reasonable cause. There is also no legal ground on which the decree
of restitution should not be granted.

2. WHETHER THE PRINCIPLE OF RES-JUDICATA UNDER SECTION 11 OF THE CODE OF

CIVIL PROCEDURE, 1908 IS APPLICABLE TO THE SUIT BEING INITIATED IN DISTRICT
COURT, GAYA?

It is humbly submitted that the principle of Res Judicata is not applicable in the present case.
It is because the matter in subsequent suit is not directly and substantially same as in the former
suit. Also, the Trial Court of New York was not competent to adjudicate the matter. Therefore,
the principle will not be applicable as that court was not competent.

3. WHETHER NON-CONTEST BY THE PETITIONER IN DIVORCE PETITION FILED BY THE

RESPONDENT IN FOREIGN COURT IMPLY THAT SHE HAD CONCEDED TO THE

JURISDICTION OF THE FOREIGN COURT?

It is humbly submitted that such non contest by the petitioner against the divorce petition does
not imply that she had conceded to the jurisdiction of the foreign court. The test under section
13 of CPC is also not met. The decree given by foreign court is not on merits. The principle of
natural justice was also not followed.

ix
 ARGUMENTS ADVANCED

1. WHETHER THE PETITION OF RESTITUTION OF CONJUGAL RIGHTS BY POOJA, IS

MAINTAINABLE OR NOT?

It is humbly submitted that the petition of Restitution of Conjugal Rights by Pooja is

maintainable. The petitioner (Pooja) filed petition under Section 9 of The Hindu Marriage Act,
1955 against her husband (Anand). The section reads as−

§ 9 Restitution of Conjugal Rights.− When either the husband or the wife has, without
reasonable excuse, withdrawn from the society of the 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.1

Explanation- Where a question arises whether there has been reasonable excuse for
withdrawal from the society, the burden of proving reasonable excuse shall be on the person
who has withdrawn from the society.

A) ANAND HAD WITHDRAWN WITHOUT REASONABLE CAUSE AND MARRIAGE NOT

IRRETRIEVABLY BROKEN DOWN
The respondent after moving to New York asked his wife to move back to India. The facts are
silent on the reason why respondent asked to do so. Pooja along with her two child children
moved back to India in March 2010. Thereafter respondent severed all his contacts with Pooja
and developed extra marital affair with lady named Maria Prescott. On Pooja’s letter to Anand
she expressed her willingness to join him in New York. The respondent in reply to this letter
explained that he is no more interested in continuing married life because his marriage had
irretrievably broken down. The reason of petitioner was just irretrievable breakdown of
marriage and that cannot be deemed to be reasonable. The facts do not attract any of the
circumstances that existed to make such refusal reasonable. Another reason that can be
attracted is extra marital affair that respondent had developed in New York which is also
unreasonable.2

1
The Hindu Marriage Act, 1955.
2
Factual Sheet.

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There is difference of judicial opinion on the question whether, in a petition for restitution of
conjugal rights an alternative prayer for divorce could be sought. The High Courts of Allahabad
and Madhya Pradesh have held that such proceedings could endure.3 In Baldev Raj v. Bimla
Sharma4, Petitioner had filed a joint petition for condonation of restitution of conjugal rights
and an alternative prayer for divorce. Petitioner in his own statement had admitted that despite
the alleged acts of cruelty he was willing to keep his wife at his home which was a clear
admission that he had condoned alleged acts of cruelty. In the present matter no such act of
cruelty can be found from the fact.5 The High Court of Himachal Pradesh has taken a contrary
view. Desertion is the forsaking of all marital obligations by the deserting spouse, without any
reasonable cause and without the consent of the deserted spouse. The deserted spouse has a
right in law to seek restitution of the marital tie, and all its obligations on part of the respondent.
Decisions based on abandonment have held that such conduct by the deserting spouse may
entitle the deserted spouse to seek a divorce.6

The Code of Civil Procedure stipulates that every plaint shall state specifically the relief, which
the plaintiff claims, either simply or in the alternative.7 There is thus, no legal bar against a
plaintiff seeking two apparently diagonally opposite reliefs. As held by the Supreme Court8 ‘a
plaintiff may rely upon different rights alternatively and there is nothing in the Civil Procedure
Code to prevent a party from making two or more inconsistent sets of allegations and claiming
relief thereunder in the alternative’. In a petition for restitution of conjugal rights, under this
section, a petitioner can pray for alternative relief by way of divorce.9 Therefore, Pooja has
also the option to seek divorce as an alternative in this petition under Order VII Rule 7 of the
Civil Procedure Code 1908.

The marriage had not irretrievably broken down between Pooja and Anand. The respondent
filed petition for divorce in Trial Court of New York on the ground that his marriage had
irretrievably broken down. The Trial Court of New York granted a divorce decree in favour of
respondent.10 The courts in India have come to accept the ‘irretrievable breakdown of marriage’

3
Krishna Devi v. Addl. Civil Judge, MANU/UP/0146/1985; Bhavana Advani v. Manohar
Advani, MANU/MP/0026/1992.
4
MANU/HP/0277/2005; Nirmala Devi v. Ved Prakash, MANU/HP/0001/1993.
5
Factual Sheet.
6
Geeta Jagdish Mangtani v. Jagdish Mangtani, MANU/SC/0583/2005.
7
Order VII, Rule 7.
8
Firm Srinivas Ram Kumar v. Mahabir Prasad, MANU/SC/0021/1951.
9
Id at 3.
10
Factual Sheet.

Page | 2
as a concept. The trend of various judicial decisions shows that if any of the grounds for
dissolution of a marriage do exist, courts lean in favour of severance of matrimonial ties,
disruption of marital ties in a given case, it is found that the relationship between the spouses
has broken down to such an extent that it would be difficult to retrieve the situation and effect
a reconciliation, the court could permit a disruption in the interest of the spouses.11 But the
situation in the present matter is not such that it would be difficult to retrieve and effect
reconciliation rather the ground of extra marital affair exists which is unreasonable to seek
divorce.12 Courts have, however cautioned that mere ‘irretrievable breakdown’ of a marriage
cannot lead to disruption of marital ties. This is since what has not been laid down by the
legislature cannot be introduced or imputed into grounds for entitlement of divorce and each
case would have to be judged by courts on its attendant factual matrix in order to arrive at a
conclusion as to irretrievable breakdown. The proposal was made to make ‘irretrievable
breakdown of marriage’ a ground for divorce under both the Hindu Marriage Act, 1955 and
the Special Marriage Act, 1954.13 Thus, the duty of a court in such circumstances, is onerous
and must be exercised with sound discernment.14

B) LEGAL GROUNDS ON WHICH DECREE TO BE GRANTED

Section 9 of the Hindu Marriage Act 1955 makes it clear on the point that if the Court is
satisfied on the truth of the facts presented by the petitioner, may decree restitution of conjugal
rights accordingly.15 The truth of the fact shall be withdrawal from society without reasonable
excuse on the part of respondent. Also, if no legal ground exists the Court may grant decree for
restitution of conjugal rights. There are no such legal grounds in the fact that such decree not
be granted.

[The withdrawal can be traced from the facts itself on the ground-

➢ The respondent developed extra marital affair with the lady Maria Prescott while his
marriage with Pooja existed.
➢ The ground of divorce petition filed by the respondent due to irretrievable breakdown
of marriage is unreasonable as facts do not entertain any such circumstance.

11
Mulla, Hindu Law, 21st edn. Part 2, ¶10&11.
12
Factual Sheet.
13
The Marriage Laws (Amendment) Bill, 2010.
14
Id.
15
Id at 1.

Page | 3
 ➢ There is no act of cruelty or illicit relation on the part of petitioner so that the respondent
is victimised.
➢ The respondent failed to pay maintenance to wife and children as granted by the trial
court of New York.
➢ No reason is provided to shift petitioner back to India when respondent moved to New
York.]16

The abovementioned arguments make it clear that the respondent had withdrawn from the
society and failed to complete his marital obligations. The act of respondent to develop extra
marital affair is also illegal. Therefore, the petition for restitution of conjugal rights by Pooja
is maintainable.

16
Factual Sheet.

Page | 4
2. WHETHER THE PRINCIPLE OF RES-JUDICATA UNDER SECTION 11 OF THE CODE OF
CIVIL PROCEDURE, 1908 IS APPLICABLE TO THE SUIT BEING INITIATED IN DISTRICT
COURT, GAYA?

It is humbly submitted that the principle of Res Judicata is not applicable in the present case.
Section 11 reads as-

§ 11 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.17

In Alka Gupta v. Narender Kumar Gupta18, the Hon’ble Supreme Court laid down essential
requirements of the principle of res judicata. They are-

(i) the matter must be directly and substantially in issue in the former suit and in the later
suit;

(ii) the prior suit should be between the same parties or persons claiming under them;

(iii) parties should have litigated under the same title in the earlier suit;
(iv) the matter in issue in the subsequent suit must have been heard and finally decided in
the first suit;
(v) the court trying the former suit must have been competent to try particular issue in
question.

A) PRESENT MATTER NOT DIRECTLY AND SUBSTANTIALLY IN ISSUE IN THE FORMER

SUIT
Where the previous application had become infructuous and was not decided on merits, the
principle of res judicata would not operate. The principle of res judicata states that no Court
shall try any issue which was directly or substantially in issue between the same parties and
which has been heard and finally decided by a competent Court. Thus, unless an issue directly
and substantially raised in the former case, is heard and decided by the competent Court, the

17
The Code of Civil Procedure, 1908.
18
MANU/SC/0793/2010

Page | 5
principle of res judicata will not be attracted.19 The judgment/order, which is without
jurisdiction, or is non-speaking, does not operate as res judicata. The principles of res judicata
also do not apply in a case involving pure question of law.20

The question whether a matter was directly and substantially in issue in the former suit has to
be decided-
(a) on the pleadings in the former suit,
(b) the issue struck therein, and
(c) the decision in the suit.
Further, it depends upon whether a decision on such an issue will materially affect the decision
of the suit.21 The expression “Collaterally and incidentally” in issue implies that there is another
matter which is “directly and substantially” in issue.22 If parties and the Court have dealt with
the matter as if it formed a direct and principal issue, it must be taken to have been directly and
substantially in issue though in the first instance it was not raised properly or was raised only
as an ancillary or incidental issue.23 A matter must be held to be directly and substantially in
issue if the Court considers the adjudication of the issue to be material and essential for its
decision.24 In case of alternative findings, each would be res judicata, if the decision rests on
all of them.25

In the present matter the former suit initiated by respondent in the trial court of New York was
the petition for divorce on an unreasonable ground. The subsequent suit by petitioner in the
District Court of Gaya is petition for restitution of conjugal rights. The former suit was initiated
due to extra marital affair developed by respondent whereas the subsequent suit is initiated for
the decree of conjugal rights. The matter in subsequent suit is directly and substantially
different from former suit. The petitioner has the option of divorce as an alternative in the same
petition.26 However, the petitioner did not file petition for divorce in her subsequent suit.27 The
question related to the competency of the New York trial court will be argued further.

19
N Suresh Nathan v UOI, MANU/SC/0279/2010 DK Enterprises v Employees State Insurance Corpn,
MANU/DE/0307/2009.
20
Union of India v. Pramod Gupta, MANU/SC/0549/2005.
21
Isher Singh v Sarwan Singh, MANU/SC/0345/1964.
22
Sajjadnashin Syed Md BE Edr v Musa Dadabhai Ummer, MANU/SC/0122/2000.
23
Narayani v Durgalal, MANU/RH/0025/1968.
24
Laxman v Saraswathi, MANU/MH/0045/1959
25
Laxman Prasad v CIT, MANU/UP/0054/1963.
26
Id at 9.
27
Factual Sheet.

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 B) THE TRIAL COURT OF NEW YORK NOT COMPETENT
Jurisdiction consists in taking cognizance of a case involving determination of some jural
relations, in ascertaining the essential point of it and in pronouncing upon them.28 Thus, when
it is said that a Court has jurisdiction to try a suit it means that it is competent to try it. The
competence of a Court and jurisdiction of the Court are synonymous terms and both of them
mean the right of the Court to adjudicate in a given matter.29

[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.]30

A decision of a competent Court on a matter in issue may be res judicata in another proceeding
between the same parties, irrespective of the fact whether the matter in issue may be an issue
of fact, and issue of law or one of mixed question of law and fact. An issue of fact or an issue
of mixed law and fact decided by a competent Court is finally determined between the parties
and cannot be reopened between them in another proceeding.31 The doctrine of res judicata
means an issue attaining finality, should not be allowed to be reagitated.32 An order passed
without jurisdiction is nullity. It would not attract principle of res judicata.33 The trial Court of
New York is not competent court to adjudicate the present matter. The petitioner cannot be the
subject of that court as she never resided in New York.34 Also, the respondent is resident35 of
Gaya. The parties cannot also be held subject of New York jurisdiction as the marriage was
solemnized according to the Hindu Marriage Act 1955.

Since the Trial Court of New York is not competent to adjudicate the matter the doctrine of res
judicata is not applicable in the suit initiated at District Court, Gaya. Further, the decree of
foreign court whether conclusive or not will be argued in next issue.

28
Addl Collector of Customs v Best and Co, MANU/SC/0189/1966.
29
MP JAIN, The Code of Civil Procedure including Limitation Act 1963, 5th edn. Ch. 1.
30
CPC, §11, Exp VIII.
31
Ram Nag v State of Orissa, MANU/OR/0172/2008.
32
Escorts Farms Ltd v Commissioner KD Nainital, MANU/SC/0144/2004.
33
Id.
34
Factual Sheet.
35
Id.

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3. WHETHER NON-CONTEST BY THE PETITIONER IN DIVORCE PETITION FILED BY THE
RESPONDENT IN FOREIGN COURT IMPLY THAT SHE HAD CONCEDED TO THE

JURISDICTION OF THE FOREIGN COURT?

It is humbly submitted that such non contest by the petitioner against the divorce petition does
not imply that she had conceded to the jurisdiction of the foreign court. If a violation of any
order passed by a Civil Court is made the ground of issuance of a red corner notice, the Court
will enquire as to whether the same has undergone the tests laid down under sections 13 and
44-A of the Code.36 The test under Section 13 of CPC has to be done in the present matter to
decide whether decree of New York Court conclusive or not.

Section 13 reads as-

[§ 13 When foreign judgment not conclusive.- A foreign judgment shall be conclusive as to

any matter thereby directly adjudicated upon between the same parties or between parties
under whom they or any of them claim litigating under the same title except—
(a) where it has not been pronounced by a Court of competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded on an incorrect view of
international law or a refusal to recognise the law of [India] in cases in which such
law is applicable;
(d) where the proceedings in which the judgment was obtained are opposed to natural
justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in force in India.]37

In the preceding issue it has been proved that New York court was not competent to adjudicate
the matter. If the judgment falls under any of the clauses in section 13 then it will cease to be
conclusive as to any matter thereby adjudicated upon and will be open to collateral attacks on
the grounds mentioned in this section.38 Further test under this section will make clear that
foreign court’s decree cannot be considered conclusive in the present matter.

36
Bhavesh Jayanti Lakhani v State of Maharashtra, MANU/SC/1410/2009.
37
Id at 17.
38
Satya v Teja Singh, MANU/SC/0212/1974.

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 A) THE FOREIGN DECREE NOT GIVEN ON MERIT
The New York Trial Court granted divorce decree in favour of respondent and ordered to pay
maintenance of 50,000 to wife and children. foreign judgment in order to be conclusive must
have been given on the merits of the case. Only in this case it will operate as res judicata.39
The Courts in India have the power to examine whether the judgment has been given on merits
or not. The true test for determining the question as to whether the judgment has been given on
merits is to see whether it has been given as penalty for any conduct of the defendant or whether
it is based on a consideration of the truth or otherwise of the plaintiff’s case.40 The decree has
been given in respondent’s favour on the ground of irretrievable breakdown of marriage. The
ground has already been proved unreasonable in first issue as facts do not attract such ground.

Before a foreign judgment can be valid cause of action for a suit upon it in India it must be
shown that, in the Court by which it was pronounced it conclusively, finally and forever,
established the existence of the right of which it is sought to be made conclusive evidence in
this country.41 In considering whether a judgment of a foreign Court is conclusive the Courts
in India will not inquire whether conclusions recorded thereby are supported by the evidence
or otherwise correct.42 The District Court, Gaya is not bound to examine whether the foreign
decree was passed by a supporting evidence in light of the case43 decided by Supreme Court.
Therefore, it can be considered that foreign decree was not passed on merit as it does not pass
test under Section 13(b) of CPC.

B) THE DECREE IS OPPOSED TO NATURAL JUSTICE

A foreign judgment shall not be conclusive within the meaning of Section 13, if the proceedings
in which the judgment was obtained are opposed to natural justice. Thus, a judgment obtained
without giving notice of the suit to the defendant or without giving him a reasonable
opportunity of presenting his case is contrary to the principles of natural justice.44 The same is
attracted by the facts of present case. The petitioner could not contest the proceeding as she did
have any means to go to New York.45 Without giving her opportunity to present the case the
principle of natural justice is breached. The ex parte decree in favour of respondent is not valid

39
MP JAIN, The Code of Civil Procedure including Limitation Act 1963, 5th edn.
40
I&G Investment Trust v. Raja of Khalikote, MANU/WB/0056/1952.
41
KB Walker v Gladys P Walker, MANU/RA/0081/1935.
42
Vishwanathan v Abdul Mazid, MANU/SC/0038/1962.
43
Id.
44
Id at 40.
45
Factual Sheet.

Page | 9
as reasonable opportunity to petitioner was not given. The ground to grant ex parte decree is
also invalid as petitioner expressed her willingness to join respondent in New York. Bias on
the part of judge would also vitiate the proceedings on the grounds of principles of natural
justice. A foreign judgment, if otherwise valid, must be recognized, even if it was passed ex
parte or on compromise.46 The decree here is not valid as it is against the principle of natural
justice.

Therefore, the petitioner cannot be deemed to concede the jurisdiction of foreign court as the
test provided under Section 13 is not met.

46
Ponnuswamy v Periasami Pillai, MANU/TN/0532/1978.

Page | 10
 PRAYER

For the foregoing reasons, the petitioner respectfully requests to allow the petition and declare
that:

A) THE PETITION FOR RESTITUTION BE MAINTAINABLE.

B) THE PRINCIPLE OF RES-JUDICATA NOT APPLICABLE IN THIS CASE.

C) THE NON-CONTEST BY PETITIONER DOES NOT IMPLY TO CONCEDE FOREIGN

JURISDICTION.

And pass such order keeping in view the principle of equity and good conscience.

Respectfully Submitted
COUNSEL FOR THE PETITIONER

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