FACULTY OF LAW

ALIGARH MUSLIM UNIVERSITY

Civil LAW MOOT MEMORIAL

Submitted to:
PROF. HASHMAT ALI KHAN

Submitted by:
yamini baghel
17ballb 47
gi7037
group 2
x- semester
IN THE HON’BLE DISTRICT COURT AT HAMIRPUR (HIMACHAL PRADESH)

Petition filed Under Section 22 of The Special Marriage Act 1954

IN THE MATTER OF SHABANA

PETITIONER
V.

MUKESH RESPONDENT

WRITTEN SUBMISSION ON THE BEHALF OF THE RESPONDENT

 Page 2

INDEX

INDEX OF AUTHORITIES 5-8

STATEMENT OF JURISDICTION 9

SYNOPSIS OF FACTS 10-11

STATEMENT OF ISSUES 12

SUMMARY OF PLEADINGS 13-14

BODY OF PLEADINGS 15-38

ISSUE 1: WHETHER THE MARRIAGE OF SHABANA AND MUKESH IS VALID AS

PER THE PROVISIONS OF THE THE SPECIAL MARRIAGE ACT, 1954?

SUBMISSION-A THAT BOTH SHABANA AND MUKESH WERE THE CITIZENS OF INDIA
AND HENCE SECTION THE SPECIAL MARRIAGE ACT APPLIES TO THEM 15-16

SUBMISSION-B THAT THEIR MARRIAGE IS IN ACCORDANCE WITH SECTION 4 OF

THE SPECIAL MARRIAGE ACT 1954… 17-18

SUBMISSION-C THAT ALL THE CONDITIONS OF SECTION 4 OF THE SPECIAL

MARRIAGE ACT WERE FULFILLED DURING THE SOLEMNIZATION OF THE
MARRIAGE
BETWEEN SHABANA AND MUKESH… 18-19

SUBMISSION-D THE IMPERATIVES UNDER ARTICLE 21 AND ARTICLE 25(1) OF THE

 Page 3
INDIAN CONSTITUTION RENDER THE CONSUMMATION OF MARRIAGE AMONG
THE PARTIES AS VALID IN THE PRESENT CASE… 19-20

ISSUE:2: WHETHER THE NON-CONTEST BY THE WIFE OF DIVORCE PETITION

FILED BY THE HUSBAND IN A FOREIGN COURT IMPLIES THAT SHE HAD

CONCEDED TO THE JURISDICTION OF THE FOREIGN COURT?. ................................

SUBMISSION-A THAT FOREIGN COURT ON NON-APPEARANCE OF PETITIONER CAN
GRANT EX PARTE DECREE OF DIVORCE… 27-28

SUBMISSION-B THAT PETITIONER HAD ENOUGH TIME TO APPEAR BEFORE THE

TRIAL COURT OF FRANCE
28

SUBMISSION-C THAT ACCEPTANCE OF THE MAINTENANCE BY THE PETITIONER IS

ITSELF THE CONSENT FROM HER SIDE TO THE GRANT OF THE RELIEF TO
RESPONDENT 28-29

SUBMISSION-D THAT COURT CAN NOT RELY MERELY ON THAT SHE HAD “NO MEANS
TO GO TO FRANCE.” 29-30

SUBMISSION-E THAT SHE HERSELF ACCEPTED THE JUDGEMENT OF THE

FOREIGN COURT… 30

ISSUE 3: WHETHER THE PRINCIPLE OF RES-JUDICATA UNDER SECTION 11 OF

THE CIVIL PROCEDURE CODE, 1908 IS APPLICABLE TO THE PROCEEDINGS
BEING INITIATED IN DISTRICT COURT, JALANDHAR?. 31-36

SUBMISSION-A THAT FRANCE TRIAL COURT JUDGEMENT IS CORRECT… 31-34

SUBMISSION-B THAT PETITIONER HAD CONSENTED TO THE JURISDICTION OF THE

FRANCE TRIAL COURT… 34
SUBMISSION-C THAT DIVORCE DECREE GRANTED BY THE FRANCE TRIAL COURT

IS CONCLUSIVE… 35
 Page 4
SUBMISSION-D IRREGULARITIES DO NOT AFFECT THE FOREIGN COURT
JUDGEMENT…

ISSUE 4: WHETHER THE RELATIONSHIP BETWEEN MUKESH AND EMILE IS

LEGAL

SUBMISSION-A AS PER THE DECREE OF DIVORCE ALLOTTED TO MUKESH BY THE

FRANCE TRIAL COURT, MUKESH IS SINGLE AND THEREFORE FREE TO ENJOY PERSONAL
LIBERTY

SUBMISSION-B THAT WHEN SHABANA CONCEDED TO THE DIVORCE DECREE HENCE

SHE CANNOT PLEA FOR NULLITY OF CIVIL SOLIDARITY PACT

ISSUE 5: WHETHER THE PETITION OF RESTITUTION OF CONJUGAL RIGHTS

BY SHABANA, IS MAINTAINABLE IN THE EYES OF LAW?. 15-20
SUBMISSION-A THAT THE RESTITUTION OF CONJUGAL RIGHTS DOES NOT ARISE
ATALL IN THE PRESENT CASE…………………………………………….. 15-16

SUBMISSION-B THAT MUKESH DID NOT WITHDRAW FROM THE SOCIETY OF

SHABANA AND THUS, DID NOT END CONJUGAL RELATIONSHIP 17

SUBMISSION-C THAT MUKESH HAD A REASONABLE CAUSE AND EXCUSE FOR

NOT STAYING WITH SHABANA, MARRIAGE WAS BROKEN DOWN IRRETRIEVABLY
AND THE BURDEN IS SHIFTED TO THE PETITIONER 17-19

SUBMISSION-D THAT THE RESTITUTION OF CONJUGAL RIGHTS IN THE PRESENT

IS VIOLATIVE OF CONSTITUTIONAL RIGHTS CONFERRED IN MUKESH 20

PRAYER………………………………………………………………………………
 Page 5

INDEX OF AUTHORITIES

CONSTITUTION OF INDIA, 1950

1. LIST OF STATUTES REFERRED

i. Criminal Procedure Code, 1973

ii. The Special Marriage Act 1954

iii. International Comity Of Courts

iv. The Code Of Civil Procedure, 1908

2. LIST OF JOURNALS REFERRED

i. All India Reporters

ii. Indian Law Reporters

iii. Supreme Court Cases

3. LIST OF CASES REFERRED

CASE PAGE NO.

ATMARAM V. NARBADA 1980 RAJ. 35. 37

BHAGABAN V. SULEMAN, (1973) 39 CUT LT 998. 20
BITTOO V. RAMDAS 1983 ALL. 371. 37
BRADSHAW V. BRADSHAW (1897) P. 24 AT 26 35
COMM. HRE., MADRAS V. SRI LAKSHMINDRA, A.I.R. 1954 S.C. 282. 20, 22
G. V. G., (1930) P. 72. 18
GAYA V. BHAGWATI, 1966 M.P. 212. 34, 35
 Page 6

GOPAL KRISHNAN V. MITHILESHKUMARI, A.I.R. 1979 ALL. 316. 35

GOVIND V. STATE OF M.P., A.I.R. 1975 S.C. 1378. 38
JAGRAJ SINGH V. BIRPAL KAUR, (2007) 2 SCC 564 20
JYOTHI V. PRATHAP, 1987 KANT. 24. 37
K.S. PUTTASWAMY V. UNION OF INDIA,(2018) 1 S.C.C. 809; 2017 SCC 38

ONLINE S.C. 1462.

KANCHAN DEVI V. PRAMOD KUMAR MITTAL, AIR 1996 SC 3192 27
KEMPT V. KEMPT (1953) 2 ALL E.R. 518 36
LACHMAN V. MEENA, A.I.R. 1964 S.C. 40. 36
LALJI RAJA & SONS V. FIRM HANSRAJ NATHURAM, 1971 1 SCC 25

721.
MRS. PAYAL ASHOK KUMAR JINDAL V. CAPT. ASHOK KUMAR 22, 24
JINDAL, (1992) 3 SCC 116.
27
NAVEEN KOHLI V. NEELU KOHLI, AIR 2006 SC 1675

ROMESH V. SAVITA, 1995 S.C. 851. 37

RUPAK RATHI V. ANITA CHAUDHARY , 2014 SCC ONLINE P&H 20

7357
RUSSEL V. RUSSEL (1835) SOL. JO. 16 36
SADHU V. JAGDISH, 1967 PUNJ. 139. 36
SANKARAN GOVINDAN V. LAKSHMI BHARATHI, (1975) 3 SCC 351 34
SHALIG RAM V. FIRM DAULAT RAM KUNDANMAL., AIR 1967 SC 27
739.
 Page 7

SHYAMLAL V. SARASWATI, 1967 M.P. 204. 36

SMITH V. SMITH, (1939) 4 ALL E.R. 533; 35
20
SULTAN HUSAIN V. SATNARAIN LAL, AIR 1953 HYD191

SUSHILA V. PREM, 1986 M.P. 225. 35

T. SAREETHA V. T. VENKATASUBBAIAH, A.I.R. 1983 ANDH. PRA. 37
356.
T. SUNDARAM PILLAI V. KANDASWAMY PILLAI, AIR 1941 MAD 26

387
35
TIRATH KAUR V. KIRPAL SINGH, 1964 PUNJ. 28.

VISHWANATH V. ABDUL WAJID, AIR 1961 SC 1 25

WILKIES V. WILKIES, (1943) 1 ALL E.R. 433. 35
Y. NARASIMHA RAO V. Y VENKATA LAKSHMI, (1991) 3 SCC 451 28, 29

4. LIST OF BOOKS REFERRED

● C.K. Takwani, Civil Procedure with Limitation Act, 1963 (Eastern Book
Company, 8th Edition)

● D.D. Basu, Commentary On The Constitution Of India, Wadhwa, India, 2007, 8th
Edition, Volume I And II

● Dr. Avtar Singh, Code of Civil Procedure (Central Law Publications, 20 th Edition)

● Dr.Kumud Desai, Indian laws of Marriages and Divorce, Wadhwa India,

2008, 7th Edition
● Dr. Paras Diwan, Modern Hindu Law (Allahabad Law Agency, 22 nd
 Page 8
Edition) Dr. Rega Surya Rao, Lectures on Family Laws (Asia Law
House, 2nd Edition)

● Dr. S.N. Misra, The Code of Criminal Procedure, 1973 (Central Law Publications,
20th Edition)
● Dr. U.P.D. Kesari, Modern Hindu Law (Central Law Publications, 15th Edition)
● H.M. Seervai, Constitution Law Of India, Universal Publications, India, 2004, 4th
Edition, Volume I, II And III

● M.P. Jain, India Constitutional Law, LexisNexis, India, 2010, 6th

Edition Sir. Dinshaw Fardunji Mulla, Mulla Hindu Law ( LexisNexis,
21st Edition)
● Sir. Dinshaw Fardunji Mulla, Mulla The Code Of Civil Procedure Abridged (
LexisNexis, 16st Edition)

● V.N. Shukla, Constitution Law Of India, Eastern Book Company, India, 2008, 11th Edition.

5. LIST OF WEBSITES REFERRED

1. www.indiakanoon.org

2. www.lexisnexisacademic.com

3. www.manupatra.com

4. www.ncaer.org

5. www.undp.org.in

6. www.vakilno1.com
 Page 9

STATEMENT OF JURISDICTION

In the instant matter, the Respondent humbly submits to the jurisdiction of the Hon‟ble District
Court of Hamirpur By the way of petition of restitution of conjugal rights by the learned
Petitioner under Section 22 of the The Special Marriage Act 1954.

Section 22 of the The Special Marriage Act 1954 reads as:

Section 22: 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.
Explanation- Where a question arises whether there has been a reasonable excuse for
withdrawal from the society, the burden of proving a reasonable excuse shall be on the person
who has withdrawn from the society.
 SYNOPSIS OF FACTS

(¶1) Shabana and Mukesh (a Marine Engineer in Indian Army), both resident of HAMIRPUR
(HIMACHAL PRADESH) are Muslim and Hindu by religion respectively. They got married in
2011 according to the Hindu ceremonies and got their marriage registered as per the provisions
of The Special Marriage Act, 1954 and obtained a marriage certificate.

(¶2) In 2012, a child was born from this union. In January of 2013, Mukesh after taking
voluntary retirement went to France for higher studies. In April 2015, he called his wife and the
child. In January 2016, a second child was born in France. In February 2016 he came back to
Hamirpur along with his wife and two children.

(¶3) In March 2016 Mukesh again went to France for 6 months In September 2016 Mukesh
severed all his ties from her and developed an extra- marital affair with a woman named Emile.
When in January 2017, Shabana wrote a letter to Mukesh expressing her willingness to join him,
Mukesh in reply showed his interest in getting their marriage dissolved.

(¶4) In December 2017 he got the Citizenship Of France .In April 2018, Mukesh filed a petition
for divorce in Trial Court of France on the ground of irretrievably broken down marriage. In July
2018, the Trial Court granted him divorce decree as Shabana had not contest the proceeding
because she was having no means to go to France. The Court ordered Mukesh to pay Rs.35,000
per month maintenance to wife and children.

(¶5) In August 2018, Mukesh and Emile entered into a civil solidarity pact and continued to pay
maintenance to Shabana for 3 months. Since Mukesh failed to pay maintenance, Shabana
approached the legal aid cell Hamirpur and prayed for legal aid, proceedings were initiated and
warrants of arrest were issued against Mukesh. She claimed that the ex-parte divorce decree is
not binding on her and it was illegal. She asserted that she is the actual victim and according to
the Section 27 of the The Special Marriage Act, 1954, the wife has adultery, cruelty and
desertion as a ground of divorce

(¶6) In December 2018, she also filed a petition for the restitution of conjugal rights under
Section 22 of the The Special Marriage Act, 1954 in the District Court of Hamirpur. Mukesh
appeared in the Court and did file an application in the reply of petition drafted by Shabana and
asserted that Shabana is bound by the decree of Trial Court, France as she did not contest the
same and by not raising any objection she is deemed to have accepted the jurisdiction of the
Foreign Court in trying the petition and thus making the decree nisi-absolute by the Foreign
Court. Further, by accepting maintenance, Shabana , again in effect accepted the judgement of
the Foreign Court and thus estopped from filing the petition under section 11 read with section
151 of the Civil Procedure Code, 1908.
 12

STATEMENT OF ISSUES

ISSUE 1: WHETHER THE MARRIAGE OF SHABANA AND MUKESH IS VALID

AS PER THE PROVISIONS OF THE THE SPECIAL MARRIAGE ACT, 1954?

ISSUE 2: WHETHER THE NON-CONTEST BY THE WIFE OF DIVORCE PETITION

FILED BY THE HUSBAND IN A FOREIGN COURT IMPLY THAT SHE HAD
CONCEDED TO THE JURISDICTION OF THE FOREIGN COURT?

ISSUE 3: WHETHER THE PRINCIPLE OF RES-JUDICATA UNDER SECTION 11 OF

THE CIVIL PROCEDURE CODE, 1908 IS APPLICABLE TO THE PROCEEDINGS
BEING INITIATED IN DISTRICT COURT, JALANDHAR?

ISSUE 4: WHETHER RELATIONSHIP BETWEEN MUKESH AND EMILE IS LEGAL?

ISSUE 5: WHETHER THE PETITION OF RESTITUTION OF CONJUGAL RIGHTS

BY SHABANA, IS MAINTAINABLE IN THE EYES OF LAW?
 13

SUMMARY OF PLEADINGS

ISSUE 1: WHETHER THE MARRIAGE OF SHABANA AND MUKESH IS

VALID AS PER THE PROVISIONS OF THE THE SPECIAL MARRIAGE ACT,
1954?

The marriage of Shabana and Mukesh is valid as per the provisions of The The Special
Marriage Act, 1954 as this Act applies to any person who is a citizen of India, according
to section 4 of this act Any persons who does not have a spouse living, is of the age of 21
for male and 18 for female and has a sound mind can marry each other. The constitutional
imperative under Article 25(1) of the Constitution of Indiagrants them the freedom to
observe the religious ceremony and since the parties are not underage they are free to
marry each other.

But now since Mukesh has obtained the citizenship of france therefore he further cannot
be made a subjethe to any provisions of this act as it does not apply on foreign citizens
therefore non- performance marriage cannot lead to the grant of restitution of conjugal
rights.

ISSUE 2: WHETHER THE NON-CONTEST BY THE WIFE OF DIVORCE

PETITION FILED BY THE HUSBAND IN A FOREIGN COURT IMPLY THAT
SHE HAD CONCEDED TO THE JURIDICTION OF THE FOREIGN COURT?

On the non-appearance of either of the parties in the cause, the ex-parte decree can be
granted (Order 9 Rule 12 of the Code of Civil Procedure, 1908). She could not even
 14

contest any of the proceedings which is described by various cases in the arguments
advanced; Order 9 Rule 13 of the Code of Civil Procedure, 1908 provides further that no
court shall set aside a decree passed ex-parte when there was the sufficient time to appear
and answer the opposite party‟s claim. The acceptance of maintenance by the petitioner is
itself the consent from her side to accept the jurisdiction of the France Trial Court.
Moreover, she approached the same court for the legal aid through Hamirpur legal aid cell.

ISSUE 3: WHETHER THE PRINCIPLE OF RES-JUDICATA UNDER SECTION

11 OF THE CIVIL PROCEDURE CODE, 1908 IS APPLICABLE TO THE
PROCEEDINGS BEING INITIATED IN DISTRICT COURT, JALANDHAR?
Divorce decree granted by the France Trial Court is not beyond merits or competency or
any subjugation whatsoever. Thus, the initiation of court proceeding by Shabana in the
District Court of Hamirpur should be barred, as per the principle of Res judicata under
Section 11 of the Civil Procedure Code, 1908. Sections 13 and 14 enact a rule res judicata
in case of foreign judgements. These provisions embody the principle of Private
International law that a judgement delivered by a foreign court of competent jurisdiction
can be enforced by an Indian court and will operate as res judicata between the parties
thereto except in cases mentioned in Section 13

ISSUE 4: WHETHER THE RELATIONSHIP BETWEEN MUKESH AND EMILE IS

LEGAL?
It is very pertinent to note that the relationship between Mukesh and Shabana were based
on the foundations of a civil solidarity pact which was made in August 2018 after the
French Trial Court granted Mukesh decree of divorce therefore he being a citizen of
France and single has the right to form relationhip with Emile. Also the fact that the
constitution of India under Article 21 promises every person not only the citizens of India
but to every person the right to life and personal liberty and therefore Mukesh‟s act of
entering into a civil solidarity pact is in exercise of his right to personal liberty. Moreover
Shabana by accepting the maintenance provided by Mukesh has consented to the divorce
 15

hence Mukesh is free man and can act according to his will to the extent the law permits.
ISSUE 5: WHETHER THE PETITION OF RESTITUTION OF CONJUGAL
RIGHTS BY SHABANA, IS MAINTAINABLE IN THE EYES OF LAW?

It is very pertinent to note that the restitution of conjugal rights do not arise in the present
case as there was no withdrawal by Mukesh from the conjugal society of Shabana and that,
Mukesh had a reasonable cause and excuse for not staying with Shabana and the marriage
was irretrievably broken down so there does not exist any question for restitution, also, the
burden of proving otherwise stated by the respondent now falls on the petitioner, lastly, the
restitution of conjugal rights in the present case would be violative of the constitutional
rights conferred in Mukesh. Hence, the petition for restitution of conjugal rights under
Section 22 of the The Special Marriage Act 1954 is not maintainable in the eyes of law
 16

BODY OF PLEADINGS

ISSUE 1: WHETHER THE MARRIAGE OF SHABANA AND MUKESH IS VALID AS PER

THE PROVISIONS OF THE THE SPECIAL MARRIAGE ACT, 1954?

It is most humbly submitted before this Hon‟ble Court that the respondent accepts the validity of the
marriage of Shabana and Mukesh, who belong to the Islam and Hinduism respectively was
solemnized by The Special Marriage Act of 1954 and performed in accordance to the Hindu
ceremonies1 is valid as per the provisions of The Special Marriage Act of 1954 as this act applies to
any person who is a citizen of India as stated in Section 2 of this Act2. Any Person here means any
citizen of India irrespective of their religion, caste or creed. This Act empowers every citizen of
India to marry any other person with mutual consent irrespective of their religion. It empowers the
Inter-religion Marriages to be performed under this act. The constitutional imperative under Article
213 and Article 25(1) of the Constitution of India4 grants them the freedom to Personal liberty to
marry any person of their choice and to observe the religious ceremony and since both the parties
BEING CITIZEN OF The Republic of India had mutually consented to get married under The
Special Marriage Act 1954 and obtained the registration of marriage at the time of consummation of
marriage of the parties but now since the respondent has with due respect obtained the
CITIZENSHIP OF FRANCE therefore the Indian law no longer are applicable on Mukesh hence the
grant of restitution of Conjugal Rights is not maintainable in the Hon‟ble Court Hamirpur

SUBMISSION-A

THAT SHABANA AND MUKESH ARE CITIZENS OF INDIA AND SECTION 4 OF THE
SPECIAL MARRIAGE ACT APPLIES TO THEM
1
¶1 of the Moot Proposition.
2
Section – 2, The Special Marriage Act, 1954: Application of Act.- (1) This Act applies, to the whole of India except to
the State of Jammu and Kashmir.
3
Article 21, The Constitution of India, 1950: No Person shall be deprived of his life or personal liberty except according
to the procedure established by law
4
Article 25, The Constitution of India, 1950: Freedom of conscience and free profession, practice and propagation of
religion (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally
entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
 17

() It is most humbly submitted before this Hon‟ble Court that both husband and wife are Hindus by
religion and thus the application of the The Special Marriage Act, 1954 is valid in their case of
marriage according to section 2. A person who is a citizen of India (herein Shabana and Mukesh who
belong to different religions5) is eligible to the application of the Act.

The Delhi High Court while interpreting and relying upon the preamble of the Act in the case of
Pranav Kumar Mishra v Govt. of NCT Delhi6 held that this act was enacted to enable a special
form of marriage for any Indian citizen professing different faiths or desiring a civil form of
marriage.

(¶2) The term „whole of India‟ as mentioned under Section 2 of The Special Marriage Act does not
denote any particular or specific region, community or religion but includes every citizen of India
irrespective of any demarcation.

SUBMISSION-B

THAT THE MARRIAGE SOLEMNIZED BETWEEN SHABANA AND MUKESH UNDER

THE SPECIAL MARRIAGE ACT 1954 IS IN ACCORDANCE TO SECTION 4 OF THE
ACT.

(¶1) It is most humbly submitted before the Hon‟ble Court that since Shabana and Mukesh were the
citizens of the Republic of India and got married in accordance with the provisions of Section 4 of
The Special Marriage Act 19547 which provide certain conditions that need to be fulfilled at the time
of the marriage in order to get it solemnized under this section. These conditions are as follows
i) Each party involved should have no other subsisting valid marriage.

ii) The groom must be at least 21 years old and the bride must be atleast 18 years old

5
¶1 of Moot Proposition
6
A.I.R 2009 Delhi High Court WP(C) No 748
7
1 of Moot Proposition
 18

iii) The Parties should be competent in regard to their mental capacity to the extent that they
are able to give valid consent for the marriage
iv) The parties should not fall under the categories of Prohibited relationship.

(¶3) It is most humbly submitted before this Hon‟ble Court that it is a settled law that for the
solemnization of marriage under the Act, various conditions need to be fulfilled. Section 4 must
be fulfilled at the time of the solemnization of marriage.8

(¶4) The issuance of the marriage certificate by the authorities is a clear proof that all of these
conditions were present during the solemnization of marriage.9

(¶5) The marriage performed under The Special Marriage Act 1954 is a civil contract and
accordingly there need be no rites or ceremonial requirements.10

SUBMISSION-C

THAT ALL THE CONDITIONS MENTIONED UNDER SECTION 4 OF THE SPECIAL

MARRIAGE ACT 1954 WERE FULFILLED DURING THE SOLEMNIZATION OF THE
MARRIAGE BETWEEN SHABANA AND MUKESH.

(¶1) It is humbly submitted before the Hon‟ble Court that Shabana and Mukesh got their marriage
registered under The Special Marriage Act 1954 and in effect a marriage certificate was issued by the
authorities which implies that all the conditions mentioned under this section were present during the
solemnization of the marriage because a marriage certificate issued by the authorities would only be
issued when these officers have cross-checked each and every condition mentioned in this section

8
Section 4, The Special Marriage Act, 1954: Conditions relating to solemnization of special marriage
9
¶ 1 of Moot Proposition
10
Place and Form of Solemnization, Registered Marriage (tax4india.com)
(¶2) The issuance of certificates from the Marriage Officer as mentioned under section 13 of The
Special Marriage Act 195411 clearly specifies that the marriage certificate would be issued only after
the marriage has been solemnized and Section 13 (2) specifies that
„On a certificate being entered in the Marriage certificate Book by the Marriage officer , the
certificate shall be deemed to be conclusive evidence of the fact that a marriage under this Act has
been solemnized and that all formalities respecting the signatures of witnesses have been complied
with.‟12

(¶3) The fact that Mukesh while filing the divorce petition in the Trial Court of France on the ground
of marriage being broken down irretrievably13 is in itself an evidence that Mukesh also believed in
the validity of the marriage between Shabana and Mukesh under The Special Marriage Act of 1954 .14

SUBMISSION-D

THE IMPERATIVES UNDER ARTICLE 21 AND ARTICLE 25(1) OF THE INDIAN

CONSTITUTION RENDER THE CONSUMMATION OF MARRIAGE AMONG THE
PARTIES AS VALID IN THE PRESENT CASE

It is humbly submitted before the Hon‟ble Court that Shabana is and Mukesh was the citizen of
the Republic of India at the time of their marriage and hence were governed by the Constitution
Of India 1950 and therefore were also protected by the Article 21 and Article 25 of the Indian
constitution which provides them with the rights of freedom of personal liberty and the right to
profess. Therefore both of them exercised their right to personal liberty and married the person
of their choice.

(¶2) It is humbly submitted before this Hon‟ble Court that the Article 25(1) of the Indian
Constitution guarantees to every person, not only the citizens of India, “the right to profess,
practice and propagate religion freely”. The consummation of marriage according to the Special

11
Kumud Desai, Indian law Of Marriage and diavorce, S. 13: Part 1 Chapter 2 of The Special Marriage Act 1954
12
Kumud Desai, Indian law Of Marriage and diavorce, S. 13: Part 1 Chapter 2 of The Special Marriage Act ,
13
¶ 5 of Moot Proposition.
14
¶ 1 of Moot Proposition
 Marriage Act 1954 is an act in exercise of personal liberty of an individual and hence the state
cannot interfere in deciding the matter relating to it as it involves belief and faith of the
petitioner. Article 25 seeks to protect religion and religious practices from state interference as
India has no preferred state religion, all religions are treated alike and enjoy equal constitutional
protection without any favour or discrimination. In M. Ismail Faruqui v. Union of India,15 It
was held that the State guarantees freedom in matters of faith emphasizing that there is no
religion of the State itself.

(¶10) Further, the Supreme Court has also stated in the case of Commr. HRE Madras v. Sri

Lakshmindra16 that the guarantee under the Constitution of India protects the acts done in the

pursuance of the religion. It has also been laid down that a person can exhibit his belief in such
outwardly act as he thinks proper.

15
A.I.R 1995 S.C 605
16
A.I.R 1954 S.C 282
 21

ISSUE 2: WHETHER NON-CONTEST BY THE WIFE OF DIVORCE PETITION FILED

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

It is most humbly submitted before this Hon‟ble Court that the decree passed by the Trial Court
in absentia of the defendant is valid. Order 9 of Civil Procedure Code, 1963 enacts the law with
regard to the consequence of non-appearance of the party and its remedy. She did not appeared
in any of the proceedings before the Trial Court between the gap of 4 months from the date of
petition filed and the decree granted. No arguments other than that she could not contest the
proceedings because she had „no means to go to France proved, which was her own statement
and can be fabricated.

SUBMISSION-A

THAT FOREIGN COURT ON NON-APPEARANCE OF PETITIONER CAN GRANT EX

PARTE DECREE OF DIVORCE.

(¶1) It is most humbly submitted before this Hon‟ble Court that in April 2018, the defendant
Mukesh filed a petition for divorce in Trial Court of France which was not contested by the
56
plaintiff . But according to the Order 3 Rule 1 Of Civil Procedure Code, the party to the suit to

have to attend the court in person or by their pleaders on the day fixed in the summons for the
defendant to appear. Order 9 Rule 12 provides that defendant who does not appear in person the
court may proceed an ex parte17

(¶2) In Jagraj Singh v. Birpal Kaur18, court observed that once a direction is issued by a court
and even the party fails to appear, the court may proceed ex parte. In Rupak Rathi v. Anita
Chaudhary19, it was observed by the Supreme Court that “If the spouse aggrieved by the foreign

17
Jagraj Singh v. Birpal Kaur, (2007) 2 SCC 564: AIR 2007 SC 2083.
18
Or. 9 R. I2; (2007) 2 SCC 564; See also: Sultan Husain v. Satnarain Lal, AIR 1953 Hyd191: ILR 1953 Hyd 114;
Bhagaban v. Suleman, (1973) 39 Cut LT 998.
19
 22

matrimonial decree has not submitted to the jurisdiction of the foreign court or consented to the
passing of the foreign Court judgement, it ought not to be recognised being unenforceable under
Section 13 Civil Procedure Code.”

(¶3) In the case of Mrs. Payal Ashok Kumar Jindal v. Capt. Ashok Kumar Jindal20, it was
observed that “I think that if the applicant was really keen and desirous to contest matrimonial
petition, she would have at once made enquiries to find out as to when the next date for hearing
in this court.” But in the present case the petitioner had not contested any proceeding in the Trial
Court of France and there is no evidence to show that she even made any enquiries to find out
next date for hearing.

SUBMISSION-B

THAT PETITIONER HAD ENOUGH TIME TO APPEAR BEFORE THE TRIAL COURT
OF FRANCE.

(¶4) It is most humbly submitted before this Hon‟ble Court that the respondent had filed petition
Order IX Rule 13 Provided further that no court shall set aside a decree passed ex parte merely
on the ground that there has been no irregularities in the service of summons, if it is satisfied that
the defendant had notice of the date of hearing and had sufficient time to appear and answer the
plaintiff‟s claim.

(¶5) In the present case the petitioner had not contested any of the proceedings which were held
between the months of April and July, 2012. The time gap of more than 3 months is sufficient for
the petitioner to present herself and counter the petition of the respondent before the Trial Court
of France. Thereafter, on relying on this the Trial Court granted a divorce decree in favour of
Mukesh.

SUBMISSION-C

THAT ACCEPTANCE OF THE MAINTENANCE BY THE PETITIONER IS ITSELF THE

CONSENT FROM HER SIDE TO THE GRANT OF THE RELIEF TO RESPONDENT
20
(1992) 3 SCC 116
 23

(¶6) It is most humbly submitted before this Hon‟ble Court that a divorce decree granted by the
Trial Court in favour of the respondent in July, 2018. Further the court ordered that the husband
would pay to the wife and children an amount of Rs. 35000 per month for their maintenance.
Since Mukesh failed to pay maintenance to wife and children, Shabana approached the Trial
Court of France through a the legal aid cell Hamirpur and prayed that she be provided legal aid.21

(¶7) The whole of these circumstances imply that she consents to the decree of relief which was
granted by the Trial Court to the respondent

(i) by taking the maintenance from the husband after passing the divorce decree, and
(ii) after Mukesh failed to pay maintenance she approached the same court.

(¶8) Approaching the Trial Court of France after Mukesh failed to provide maintenance proves
that she was in favour of the decree of divorce granted by the Trial Court22

(¶9) The applicant states, he resides at a far long distance from Hamirpur and argues that The
exception to the rule is where the respondent consents to the grant of the relief although the
jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of
the parties.23

SUBMISSION-D

THAT COURT CAN NOT RELY MERELY ON THAT SHE HAD “NO MEANS TO GO TO
FRANCE.”

(¶10) It is most humbly submitted before this Hon‟ble Court that the reason of the petitioner that
she could not contest these proceedings because she had no means to go to France, it requires
evidence and the court can‟t believe on it unless ample evidence of her incapability has been

21
¶7 of the Moot Proposition.
22
¶7 of the Moot Proposition,
23
Y. Narasimha Rao v. Y Venkata Lakshmi, (1991) 3 SCC 451 : 1991 SCC (Cri) 626.
 24

provided .

(¶11) In the case of Mrs. Payal Ashok Kumar Jindal v. Capt. Ashok Kumar Jindal24, the
applicant has not produced any evidence to the effect that she received advice from a lawyer. It is
her own statement. It is a self-serving statement and can hardly be believed. I think that if the
applicant was really keen and desirous to contest matrimonial petition, she would have at once
made enquiries to find out as to when the next date for hearing in this court was fixed the
application for setting aside ex parte divorce was dismissed by the Family Court.

SUBMISSION-E

THAT SHE HERSELF ACCEPTED THE JUDGEMENT OF THE FOREIGN COURT.

(¶12) It is most humbly submitted before this Hon‟ble Court that the petitioner did not contest
the proceedings and by not raising any objection she is deemed to have accepted the jurisdiction
of the Foreign Court in trying the petition and thus making the decree nisi-absolute by the
Foreign Court. Further, by accepting the maintenance of Rs. 35000 per month, Shabana again
.25
in-effect accepted the judgement of the Foreign Court

(¶13) Similarly in the case of Y. Narasimha Rao v. Y Venkata Lakshmi26, the applicant prays for
granting of maintenance allowance pending final disposal of this application, here respondent
consents to the grant of relief to the petitioner of ex parte decree. The application dismissed.

24
(1992) 3 SCC 116
25
¶6 of the Moot Proposition.
26
(1991) 3 SCC 451 : 1991 SCC (Cri) 626.
ISSUE 3. “WHETHER THE PRINCIPLE OF RES-JUDICATA UNDER SECTION 11 OF
THE CIVIL PROCEDURE CODE, 1908 IS APPLICABLE TO THE PROCEEDINGS
BEING INITIATED IN DISTRICT COURT,HAMIRPUR?”
The respondent most humbly submits that the divorce decree granted by the France Trial Court is
not beyond merits or competency or any subjugation whatsoever. Thus, the initiation of court
proceeding by Shabana in the District Court of Hamirpur should be barred, as per the principle of
Res judicata under Section 11 of the Civil Procedure Code, 1908.

Sections 13 and 14 enact a rule res judicata in case of foreign judgements. These provisions
embody the principle of Private International law that a judgement delivered by a foreign court
of competent jurisdiction can be enforced by an Indian court and will operate as res judicata
between the parties thereto except in cases mentioned in Section 13.

Binding nature of Foreign Judgement: Principles: 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 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 judgement 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.
 SUBMISSION-A

THAT FRANCE TRIAL COURT JUDGEMENT IS CORRECT.

(¶1) Dicey rightly states that “A foreign judgement is conclusive as to any matter thereby
adjudicated upon and cannot for any error either- of fact, or of law”

Foreign judgement is given by a competent court- Judgement must be by a court competent by

law of the state which has constituted it and by in an international sense, it must have directly
adjudicated upon the matter which is pleaded as res judicata. But what is conclusive is the
judgement, i.e., the final adjudication and not the reasons for the judgement given by the foreign
court as stated in Vishwanath v. Abdul Wajid27, Thus, if A sues B in a foreign court, and if the
suit is dismissed, the decision will operate as a bar to a fresh suit on the same cause of action.

In this matter, the competency of France Trial Court in International sense is absolutely justified.
Both France. and India are member countries of Hague convention, 1970. Article 1 of which
states that- The present Convention shall apply to the recognition in one Contracting State of
divorces and legal separations obtained in another Contracting State which follow judicial or
other proceedings officially recognised in that State and which are legally effective there.

The Convention does not apply to findings of fault or to ancillary orders pronounced on the
making of a decree of divorce or legal separation; in particular, it does not apply to orders
relating to pecuniary obligations or to the custody of children.

(¶2) Foreign judgement is on merits- In order to operate res judicata the decree must have been
passed on merits of the case. The mere fact of decree passed ex parte will not necessarily justify

a finding that the judgement was not on merits. Lalji Raja & Sons v. Firm Hansraj Nathuram28

The petitioner in this matter cannot, thus take the plea that the divorce decree of France Trial
Court was beyond merits as the petitioner did not show up to the court despite being notified.

(¶3) Foreign judgement is not against International or Indian law – The judgement by the France
Trial court is not against international law because it is based on the personal international law
doctrine –lex loci, meaning by as per the law of the land. If the minimum requirements of
judicial processes are assured; correctness of the foreign judgement in law is not predicated as a

27
AIR 1961 SC 1
28
1971 1 SCC 721.
 condition of recognition of its conclusiveness by the municipal court as held in Vishwanathan v.
.29
Abdul Wajid

(¶4) A foreign judgement is not open to attack on the ground that law of domicile had not been
properly applied in deciding the validity of adoption or that the court disagrees with the
conclusion of the foreign court, if otherwise the principles of natural justice have been complied
with.

(¶5) Foreign judgement was not obtained by fraud- It is a well established principle of Private
International Law that if a foreign judgement id obtained by fraud, it won‟t be applicable, which
is not the case here. Explaining the nature of „fraud‟, de Grey C.J. stated that though a
judgement would be res judicata and not impeachable from within, it might be impeachable from
without. In other words, it is not permissible to show that the court was „mistaken‟, though it
might be shown that the court was „misled‟. There is an essential distinction between trickery
and mistake. The clear implication of the distinction is that to set aside a judgement can‟t be
brought on the ground that it has been decided wrongly, that on merits, the decision was one
which should not have been rendered, but can be set aside if proven of being tricked. In this
matter, no such trickery has been adduced on the respondent‟s part.

(¶6) Fraud must not merely be constructive rather it must be actual fraud with representations of
certain facts, and simply not telling of a certain fact will not be sufficient to avoid a foreign
judgement. It is to the extent that even a perjured evidence submission is not considered as fraud
.30
as held in T. Sundaram Pillai v. Kandaswamy Pillai

(¶7) Foreign judgement doesn‟t breach Indian law- Every judgement that comes from a foreign
court must be in accordance with Indian laws. The foreign judgement must not at all hurt the
policies of the nation. The judgement that arrived from the France Trial court is in parlance to
any Indian trial court judgement that would adjudicate the divorce matter as per the facts in this
matter, pertaining to the Special Marriage Act couples.

(¶8) The Law Commission of India in its 71st Report titled “The The Hindu Marriage Act 1955 -
Irretrievable Breakdown of Marriage as a Ground of Divorce” recommended amendments in the

29
AIR 1961 SC 1
30
AIR 1941 Mad 387
 Hindu Marriage Act to make irretrievable breakdown of marriage as a new ground for granting

divorce among the Hindus and explained in depth the theories of irretrievable break down of the
marriage which can also be read in consideration with Section 28A of The Special Marriage Act
1954 . Recently, the Supreme Court also in Naveen Kohli v. Neelu31 held: “…the marriage
between the appellant and the respondent has irretrievably broken down and that there was no
possibility of reconciliation, we in exercise of our powers under Article 142 of the Constitution
of India hereby direct that the marriage between the appellant and the respondent shall stand
dissolved by a decree of divorce.32

SUBMISSION-B

THAT PETITIONER HAD CONSENTED TO THE JURISDICTION OF THE FRANCE

TRIAL COURT.

(¶9) It is well established that one of the principles on which foreign courts are recognised to be
internationally competent is voluntary submission of the party to the jurisdiction of such foreign
court. The reason behind this principle is that having taken a chance of judgement in his favour
by submitting to the jurisdiction of the court, it is not open to the party to turn round when the
judgement is against him and to contend that the court had no jurisdiction as held in
Vishwanathan v. Rukn-ul-Mulk Syed Abdul.33

(¶10) Submission to jurisdiction of a foreign court may be express or implied. Whether the
defendant has or has not submitted to the jurisdiction of a foreign court is a question of fact that
is to be determined as per facts and circumstances of each case as held in Shalig Ram v. Firm
Daulat Ram Kundanmal.34

(¶11) Shabana had accepted the maintenance that was decreed by the France Trial Court, and was
in communication with the court via letter, which establishes the fact that the petitioner had
consented to the jurisdiction of the France Trial Court.

31
AIR 2006 SC 1675
32
Kanchan Devi v. Pramod Kumar Mittal, AIR 1996 SC 3192
33
AIR 1963 SC 18.
34
AIR 1967 SC 739.
 SUBMISSION-C

THAT DIVORCE DECREE GRANTED BY THE FRANCE TRIAL COURT IS

CONCLUSIVE.
(¶12) A foreign judgement is conclusive as to any matter adjudicated upon by a competent
foreign court. Section 13 of the Code in essence enacts a rule of res judicata in relation to foreign
judgements. Hence, if a foreign court judgement is delievered by a court having jurisdiction in
the matter, it would operate as res judicata, held in R. Vishwanathan v. Rukn ul Mulk Syed

Abdul35 and in Sankaran Govindan v. Lakshmi Bharathi36, that the foreign judgement of the

France Trial Court is conclusive in nature and will operate as Res judicata between the parties
herein. It is firmly established that a foreign judgement can be examined from the point of
competence but not of errors. In considering whether a judgement of a foreign court is
conclusive, the courts in India will not require whether conclusions recorded by foreign court are
correct or findings otherwise tenable. In other words, courts cannot go into the merits of the
original claim and it shall be conclusive as to any matter thereby directly adjudicated upon
between the same parties subject to the exceptions enumerated in clauses (a) to (f) of Section 13
as held in R. Vishwanathan v. Rukn ul Mulk Syed.

SUBMISSION-D

IRREGULARITIES DO NOT AFFECT THE FOREIGN COURT JUDGEMENT.

(¶13) There is a difference between want of jurisdiction and irregular exercise of jurisdiction. In
the former case, a decree passed by the court is nullity non est. But the latter is merely irregular

exercise of jurisdiction, wherein the judgements cannot be ignored.37 Once a foreign court has

the jurisdiction, its judgement can‟t be regarded as one without jurisdiction. Shah, J. in
Vishwanathan v. Rukn ul Mulk Syed had stated that :

In considering whether a judgement of a foreign court is conclusive, the court in India will not
inquire whether conclusions recorded thereby are supported by the evidence, or are otherwise

35
AIR 1963 SC 18
36
(1975) 3 SCC 351
37 th
C.K. Takwani, Civil Procedure with Limitation Act, 1963 (Eastern Book Company, 8 Edition)
correct, because the binding character of the judgement may be displaced only by establishing
that the case falls within one or more of the six clauses of Section 13, and not otherwise.
ISSUE 4:WHETHER THE RELATIONSHIP OF MUKESH AND EMILE IS LEGAL?

It is most humbly and respectfully submitted before the Hon‟ble Court of Hamirpur that the
relationship between Emile and Mukesh is based on the foundations of a civil solidarity pact
which permits them to to live in cohabitation and is a contractual form of civil union between
two adults for organizing their joint life and is recognized by the French constitution under
Article 515.Therefore after the Trial Court granted Mukesh decree of divorce he is free to
practice civil solidarity pact as being a citizen of France.

SUBMISSION-A

THAT THE DECREE OF DIVORCE ALLOTTED TO MUKESH BY THE FRANCE

TRIAL COURT, MUKESH IS SINGLE AND THEREFORE FREE TO ENJOY
PERSONAL LIBERTY
It is humbly submitted before the Hon‟ble Court that the Trial Court of France has already
granted Mukesh ex-parte divorce decree on the grounds of irretrievable break down of marriage
between Mukesh and Shabana hence Mukesh is single in view of his marital status and therefore
is not answerable to Shabana for the acts that he performs after the dissolution of their marriage

It may be noted that Mukesh engaged in the Civil Solidarity Pact on 3rd August 2018 only after
he was granted divorce decree from the Trial Court of France on 30th July 2018 with Emile. Since
Mukesh is now a citizen of France , he is governed by the French laws.

A civil solidarity pact as described to the Grade des Sceaux (Minister of Justice) as” a new wayb
of conjugality answering many needs and inscribed in continuity” and is discussed Under Article
515-I of the French law number 99-944 du 15 novembre 1999 relative au pcye civil de solidarite.

This establishes that two indivisuals who are adult and single can cohabitate jointly and in the
present situation both the requirements are met where Mukesh is now single by virtue of the
divorce decree granted to him and is free to act as per his will as far as the law permits Also it
 may be noted that the Indian Constitution in Article 21 enshrines the right to personal liberty not
only to Indian citizens but to the people of the world and therefore Mukesh is in exercise of these
rights to enter into the civil solidarity pact with Emile.

Honourable justice A.K. Ganguly in Revanasiddappa v.Mallikarjun observed that “with changing
social norms of legitimacy in every society, including ours, what was illegitimate in the past may be
legitimate today”

Indian judiciary has taken a lead to fill the gap that was created in absence of any specific statute
relating to live in relationship. It maybe considered immoral in the eyes of society but it is not at all
“illegal” in the eyes of law.
As in Indian code though the live-in-relationship is not “illegal” despite of not being fully codified in
the Indian constitution, the civil solidarity pact of France is legal and recognized by the French law,
then the relationship between Mukesh and Emile is legal.

SUBMISSION-B

THAT WHEN SHABANA CONCEDED TO THE DIVORCE DECREE HENCE SHE

CANNOT PLEA FOR NULLITY OF CIVIL SOLIDARITY PACT

It is humbly submitted before this Hon‟ble Court that Shabana had conceded to the divorce decree
issued by the Trial Court of France by accepting the maintenance amount sent by Mukesh to her and
not resisting it until Decemberv 2018 therefore she cannot claim that Civil solidarity is not applicable

Mukesh being the true citizen of France fulfills all the essentials conditions that is valid. And with
the compliance of the law started the relationship with Emile as according to the Civil Solidarity
Pact which is totally legal in the eyes of the French laws.
Further, the marriage of Shabana and Mukesh was dissolved on the grounds of irretrievable
breakdowns section2 8A

Divorce due to irretrievable breakdown of the marriage can be applied for by one spouse provided
that the couple had not been living together for two years. This assumes an absence of
cohabitation and a desire to end marriage.
Shabana who hadn‟t attended the proceedings of the Trail Court of France further filed the suit
for the restitution of the conjugal rights under the section 22 of the special marriage act,1954
which is totally has no ground as she accepted the decree of divorce by the France Trial Court by
accepting the maintenance.
“Acceptance of the maintenance is the acceptance of the divorce.”
 ISSUE 5: WHETHER THE PETITION OF RESTITUTION OF CONJUGAL RIGHTS
BY SHABANA, IS MAINTAINABLE IN THE EYES OF LAW?

It is humbly submitted to this Hon‟ble Court that marriage imposes an obligation on both
spouses to cohabit with each other. The necessary implication of marriage is that parties will live

together.38 Though, in this case, one party refuses to live with the other, so the question is, can the

latter, by a legal process compel the former to live with him? The remedy of restitution has to be

called the most inhuman and obnoxious.39 This anachronistic remedy is to be called worse than

tyranny and worst slavery. It is obvious that a marriage cannot be specifically enforced; a party

can perform the obligation only when the body is willing.40 All over the world, the jurists and

sociologists are of the view that the remedy of restitution should be abolished.

It is very pertinent to note that the restitution of conjugal rights do not arise in the present case as
there was no withdrawal by Mukesh from the conjugal society of Shabana and that, Mukesh
had a reasonable cause and excuse for not staying with Shabana and the marriage was
irretrievably broken down so there does not exist any question for restitution, also, the burden of
proving otherwise stated by the respondent now falls on the petitioner, lastly, the restitution of
conjugal rights in the present case would be violative of the constitutional rights conferred in
Mukesh.

SUBMISSION-A

THAT THE RESTITUTION OF CONJUGAL RIGHTS DOES NOT ARISE AT ALL IN THE
PRESENT CASE.

(¶1) It is humbly submitted before this Hon‟ble Court that in the present case, the respondent,
that is Mukesh, has merely refused to cohabit with his partner, Shabana, on the grounds that he

38
Gour Hari Sangu, The Hindu Code, 978, (Law Publishers Pvt. Ltd, Allahabad, 2002).
39 rd
Dr. Paras Diwan, Modern Hindu Law, 188 (23 edn., Allahabad Law Agency, Faridabad, 2016)
40
Ibid.
 was studying outside India and then wanted to stay at France after that, he also expressed his
desire with Shabana

cannot be amounted to the withdrawal from the conjugal society of Shabana as her husband left her
back due to a cogent reason that he could not bear the extravagance in their lifeand and also that
she was under the Influence of Peer Baba and he was having a persistent undue familiarity with a
member of opposite sex (herein, Emile ) and both amount to the reasonable excuses for ending the
cohabitation among the spouses.

(¶2) It is often quoted that “a wife‟s first duty to her husband is to submit herself obediently to
his authority and remain under his roof and protection.”41 As far as the facts in present case are

concerned it can only be referred to as „virtual separation‟42 from the society of Shabana as

Mukesh did not desert her and even in abroad he continued to live with her peacefully and they

also had a child from their wedlock in the year 2011 in Hamirpur.43 Also, according to the

ordinary custom of the Hindu society, the wife is expected to perform the marital obligation at
her husband‟s residence (which, in the present case, Shabana has undergone), but she cannot
impose the unilateral decision on husband by merely stating that she wants to cohabit with the
husband at the place where she had accepted the marriage.44

(¶3) There is also a trend in the law that the mere refusal of the husband to cohabit at the instance
of the wife is not a sufficient ground for granting the decree of restitution in the favor of wife as
the husband living at a different place against the wishes of the wife would not amount to
withdrawal. The reason for this withdrawal has to be cogent and in this case (enumerated in
further submissions) it is not.

SUBMISSION-B

THAT MUKESH DID NOT WITHDRAW FROM THE SOCIETY OF SHABANA AND
THUS, DID NOT END CONJUGAL RELATIONSHIP.

41 st
Sir Dinshaw Fardunji Mulla, Mulla Hindu Law (21 edn., LexisNexis, Gurgaon, 2014).
42
Mulla, Hindu Law, S. 555.
43
¶2 of the Moot Proposition
44
Gaya v. Bhagwati, 1966 M.P. 212.
 (¶4) It is humbly submitted before this Hon‟ble Court that in the Punjab45 and Madhya Pradesh46

cases, a good deal has been made out of the wife‟s obligation to remain under the roof and
protection of her husband. It has been forgotten that in the modern law nowhere is the wife
required to live under the roof of her husband in all circumstances. Grover, Bhargava, Verma and
Sandhawalia, JJ. have observed that the wife is no longer an appendage to the household of the
husband. If the husband and wife, cannot live together, it cannot be said that it amounts to
withdrawal by one from the society of other. „Cohabitation‟ or „consortium‟ does not
necessarily mean that husband and wife are living together under the same roof, yet they may
cohabit in the wider sense of the term.47

(¶5) In the present case, the withdrawal is just from the company of the spouse and not the
society of the spouse or conjugal relationship. For the withdrawal of the society to take place, it
is very important to prove that there was a withdrawal from totality of conjugal relationship. The
element of desertion required to prove that the withdrawal from the society was there, such as in

the case of Sushila v. Prem48 where it was held that the husband dumped his wife totally and

showed unresponsive attitude towards her, hence withdrawal is total repudiation of cohabitation.

It is to be proved before establishing that the cause of action arises to the other party49 (herein,

Shabana).

SUBMISSION-C

THAT MUKESH HAD A REASONABLE CAUSE AND EXCUSE FOR NOT STAYING
WITH SHABANA, MARRIAGE WAS BROKEN DOWN IRRETRIEVABLY AND THE THE
BURDEN IS SHIFTED TO PETITIONER

(¶6) It is humbly submitted before this Hon‟ble Court that the „reasonable cause or excuse‟ is
to be proved in the cases of restitution of conjugal rights. According to the case of Gopal
Krishnan

45
Tirath Kaur v. Kirpal Singh, 1964 Punj. 28.
46
Gaya v. Bhagwati, 1966 M.P. 214.
47
Bradshaw v. Bradshaw (1897) P. 24 at 26, per Sir F.N. Jone, P.
48
1986 M.P. 225.
49
Smith v. Smith, (1939) 4 All E.R. 533; Wilkies v. Wilkies, (1943) 1 All E.R. 433.
 v. Mithilesh Kumari,50each case depends upon its facts and circumstances and it is not possible
to give an exhaustive statement of law to prove as to „what may or may not constitute the

reasonable excuse‟. According to another case of Lachman v. Meena,51 Section 22 does not

throw any light on the construction of the expression “without reasonable excuse” it shall only
be decided by the evidence and circumstances of the case.

(¶7) In the present case, the counsel for respondent humbly contends that the extravagance of
living in the far-off country France cannot be sustained by Mukesh, and also that Shabana
disagreed to stay with him on the advise of a Peer Baba se was devotioned towards so he shed
off his burden by leaving off his wife back in India though that does not amount to the
withdrawal from the society but it necessarily amounts to the reasonable excuse within the

meaning of Section 22 as rightly observed in various English cases.52 Also, just to shed light on

the point of having the extra-marital affair with Emile in France can be refuted by the argument
that reasonable excuse also includes persistent undue familiarity with a member of opposite
18
sex. Reasonable cause should be grave and convincing;53 it is something less than justification

and something more than mere fad, whim or brain wave.54

(¶8) Furthermore, there is frequently insincerity in the petitioner's intention. The remedy is
blatantly misused to achieve ulterior purposes other than reconciliation, the root cause being
S.27 (4)read with Explaination (ii) of the The Special Marriage Act 1954 and has created an
additional ground of divorce. Yet another major problem with restitution petitions is that it is
used as a defense for maintenance suits. This remedy has been repeatedly misused, abused and
exploited.55

According to the facts of the case, it is evident that Mukesh filed for divorce on irretrievable

breakdown of marriage and according to the case of Romesh v. Savita56 it was held that if the

50
A.I.R. 1964 S.C. 40.
51
G. v. G., (1930) P. 72.
52
Russel v. Russel (1835) Sol. Jo. 16; Kempt v. Kempt (1953) 2 All E.R. 518.
53
Shyamlal v. Saraswati, 1967 M.P. 204.
54
Sadhu v. Jagdish, 1967 Punj. 139.
55
A reference has been made to Mr. Prashanth S.J, Hindu Women and Restitution of Conjugal Rights: Do We Need the
Remedy.
56
1995 S.C. 851.
 marriage was broken down irretrievably, it would serve no purpose to grant restitution. Also,

hence it has been proved that the initial burden of proof57 discharged by the petitioner58 which

required the respondent to prove that there existed a reasonable excuse for the withdrawal has

been proved and it is for the petitioner to prove otherwise.59

SUBMISSION-D

THAT THE RESTITUTION OF CONJUGAL RIGHTS IN THE PRESENT IS VIOLATIVE

OF CONSTITUTIONAL RIGHTS CONFERRED IN MUKESH.

(¶9) It is humbly submitted before this Hon‟ble Court that the restitution if granted in this case,
would be against the spirit of constitutional rights of the respondent enshrined in the Article 14

and 21 of the Indian Constitution. In the case of T. Sareetha v. T. VenkataSubbaih60 it was held

that compelling a person to live with his/her spouse violated the right to privacy in the Indian
Constitution and the right to privacy belongs to an individual and is not lost by marital
association.

It denies the man his freedom to choice and thus violating the notion of equality of sexes at the

same time. In the early case of Govind v. State of M.P.,61 the Supreme Court held that the right

to privacy protects “the personal intimacies of the home, the family, marriage, motherhood,
procreation and child rearing”. This definition seems to treat the home as a private space where
the law could not interfere.

(¶10) In K.S. Puttuswamy v. Union of India,62 the Supreme Court held that individuals have a right

to privacy which grants them complete autonomy over their body.The Court has thus adopted the
individualistic definition of privacy as argued by Justice Choudary in T.Sareetha v
VenkataSubbaiah. The Andhra Pradesh High Court had observed that the enforcement of a

57
Bittoo v. Ramdas 1983 All. 371.
58
Jyothi v. Prathap, 1987 Kant. 24.
59
Atmaram v. Narbada 1980 Raj. 35.
60
A.I.R. 1983 Andh. Pra. 356.
61
A.I.R. 1975 S.C. 1378.
62
(2018) 1 S.C.C. 809; 2017 SCC OnLine S.C. 1462.
decree of Section 22 compels a person to cohabit with his spouse, thus depriving him of control
over his own body.

With the gradual understanding that the law needs to intervene in family matters and protect the
rights of individuals, restitution of conjugal rights has been criticized very often. The restitution
of conjugal rights should be granted by the courts by express care and caution.
 PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly requested that this Hon‟ble Court may be pleased to adjudge and declare:

1. The marriage of Shabana and Mukesh is valid as per the provisions of the The
Special Marriage Act 1954 but the divorce granted by the Trial court of France is also
valid;
2. That the non-contest by the wife of divorce petition filed by husband in Foreign
Court implies that she had conceded to the jurisdiction of the Foreign Court;
3. That the principle of Res Judicata under Section 11 of the Civil Procedure Code, 1908 is
applicable to the proceedings being initiated in District Court,Hamirpur.
4. That the relationhip of Emile and Mukesh is legal.

5. And, That the petition of conjugal rights filed by Shabana under Section 22 of the
The Special Marriage Act 1954 is not maintainable in the eyes of law;

And pass any such order, other order that it deems fit in the interest of Justice, Equity and Good
Conscience.

And for this, Respondent as in duty bound, shall humbly pray.