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    7 (TEAM Cope rele YOM E NT n 7 => Code of Civil Procedura” ied ander Section 96 of the Code of Civil Procedure, 1993 (gfe 21908 Ptr ee ane IN CASE No. mr Ms, Siri & OUMELS wsovsecennenereeeeness | State of Uttam Desh & Anr... se eeeeeeseseeeeeeee Respondents UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE & HIS COMPANION JUSTICES OF THE HIGH COURT OF UTTAM DESH MEMORANDUM ON BEHALF OF RESPONDENTS DRAWN AND FILED BY THE COUNSEL FOR THE RESPONDENTS — EE ‘AL MOOT COU! _INNOVATIVE IST NATION, RT COMPETITION, 2022 - Books Referred in | jy, Lexicons 08. \, Websites Referred 08. sTATEMENTS OF FACTS 09 STATEMENT OF JURISDICTION ul | STATEMENT OF ISSUES 12 1. Whether decree passed in favour of Siri is valid or liable to be set aside? 12 2. Whether the order of restitution of conjugal rights passed in favour of Mr. Alex ig : is valid or liable to be set aside? 3. Whether Siri can be prosecuted for bigamy or not? 2 SUMMARY OF ARGUMENTS | ARGUMENTS ADVANCED 1. The decree passed in favour of Siri is not valid and hence liable to be set aside 1.1 Summons were not served 4 1.2 The principle of natural justice 16 1.3 The ground for divorce is fraudulent in nature ” 2. The order of restitution of conjugal rights passed in favour of Mr. Alex is valid | 19 LL > INNOVATIVE 1ST NATIONAL MOOT COURT COMPETITION, 2022 - 2.1 Valid marriage 19 2.2 Section 9 of Hindu Marriage act, 1955 od 2.3 Order IX rule 6 of CPC, 1908 a 3. Siri can be prosecuted for bigamy td 3.1 Bigamy an offence “4 3.2 Violation of principles of natural justice 3 n PRAYER - INNOVATIVE 157 NATIONAI L MOOT COURT COMPETITION, 2022 - LIST OF ABBREVIATIONS ALR. ALL INDIA REPORTER . ALLAHABAD a ALL ENGLAND REPORTER AP ANDHRA PRADESH Bom BOMBAY CLR. COMMONWEALTH LAW REPORTER Cal (CALCUTTA Co. COMPANY Comm. COMMISSIONER CWN CarcutTa WEEKLY NOTES Del DELHI Edn. EDITION eg. EXEMPLUM GRATIA (FOR EXAMPLE) KB. KINGS BENCH ne Lah LAHORE LR LAW REPORTER | eee | - INNOVATIVE 1ST NATIONAL MOOT COURT COMPETITION, 2022 - Sec. SECTION CPC CODE OF CIVIL PROCEDURE & AND | | IPC INDIAN PENAL CODE No./ no. NUMBER | Anr/ anr ANOTHER -IN - 1 'NOVATIVE 1°" NATIONAL MOOT COURT COMPETITION, 2022 - INDEX OF AUTHORITIES CASES REFERRED 8.NO NAME OF THE CASE CITATION Vilsons Particle Board ys Ito (Central), Kolhapur ITA No. 447/PN/2013 2, Sweety Gupta vs Neety Gupta & Ors FAO (OS) 108/2016 3. | Anjuvs Govt. Of Net Of Delhi &Ors, (2019) CRLREV. P. 730/2016 4, | Maneka Gandhi v. The Union of India 1978 AIR 597 5. Mad. Noorul Hoda vs. Bibi Refunnisa & ors 1995 SUPP.(6) SCR 110 6. | Ram Prakash Agarwal &anr vs. Gopi Krishan 2013 SCC 296 308 7. Jagendra Nath singh vs. Hira Sahu & ors AIR 1948 All 252 8. | Bhim Rao Swami Rao Desai vs. Laxmibai & anr AIR 1966 Kant 112 9. | Sunil vs. Sakshi @ Shwrta & anr SLP (C) No. 21799 of 2014 vo, | ,fmars Mining And Construction. vs Manjunath | 591 S.No. 125 of 2014 i. Neerja Realtors Pvt. Ltd. vs. Janglu (2018) 2 SCC 649 12. Smt. Saroj Rani vs. Sudarshan Kumar Chadha 1984 AIR 1562 13. Mohinder Singh vs Shanti Devi 9 (1973) DLT 242 14, | Smt Saroj Rani vs Sudarshan Kumar Chadha 1984 AIR 1562 15. | Reney Mathew vs Bharath Kumar zona MF.ANo.1050 OF 2015 16. | Lagna Bhattacharjee Vs. Shyamal Bhattacharjee AIR 1975 Cal 6 17. | Gaya vs Bhagwati AIR 1965 “INNOVATIVE IST NATIONAL MOOT COURT COMPETITION, 2022 - 18. | Harvinder Kaur vs Harmander Singh Choudhry AIR 1984 Delhi 66 19. | Sushila Bai vs Prem Narayan Rai AIR 1985 a Alopbai a Ramphal And Anr. vs Ramphal 1961 AIR 1962 MP 211 21. | Prachi Soni vs Jai Prakash Saraf FAA. No. 150/2015 22. | Bidyadhar Palo @ Pal vs Smt. Bishnupriya Palo 2007 1 OLR 141 23. | Mst. Kiran Devi vs Abdul Wahid And Anr. AIR 1966 All 105 24. | Rsa No.326 Of 2007 vs Ishwar Dass RRSA No.326 of 2007 25. | Dr. Samir Kr. Das vs Aparna Das @ Tripti Das Title Suit No. 37 of 1994 26. | Rabindra Nath Dutta vs The State AIR 1969 Cal 55 27. | Rameshwari Devi vs State Of Bihar And Others C.ANo. 600 of 2000 28, | Pashaura Singh v. State of Punjab (2010) 11 SCC 749 a ion oe Lokhande v. State of [AIR (1985) SC 1564 30. | Laxmi Devi vs Satya Naravan And Ors Appeal (Crl.) 314 of 1981 31. | Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh 1971 AIR 1153 32. | Sushil Kumar Sabharwal v. Gurpeet Singh 2002 (3) SCR 352 33. | In Naresh Chandra Agarwal v. Bank of Baroda Appeal (Civil) 1123 of 2001 34. | Rabindra Singh v. Financial Commr. Coop. C.A. NO. 3574 of 2008 35. | Gobind v. State of Madhya Pradesh AIR 1975 SC 1378 36. ee vs B. Sudarsana Rao 1988 Cri.L.J, 1849 37. _ | Naurang Singh Chuni Singh vs Smt, Sapla Devi AIR 1968 All 412 38. Shiv Charan Gupta vs Inspecting Assistant 1991 38 ITD 567 Delhi 39. Fateh Singh v. State of Rajasthan AIR 1995 Raj 15 - INNOVATIVE 157 IVE 1 NATIONAL MOOT COURT COMPETITION, 2022 - fe | 40. | Harbans Lal v. Commi outlast one 1993 Supp. 1 SCR 131 41, | nd Bhagya Natekar vs. Bhagya Pandurang Natekar 1992 Cr.LJ. 601 (Bom) STATUTES AND ACTS REFERRED 1, _ | The Code of Civil Procedure 1908 2. _ | The Hindu Marriage Act 1955 3. | The Code of Criminal Procedure 1973 4, _ | The Indian Penal Code 1860 5. | The Limitation Act 1963 BOOKS REFERRED 1. | Civil Law Judgements,2016-Vol (1), Premier Publishing Co. 2, | Ratanlal & Dhirajlal, The Indian Penal Code,35" Edition, Lexis Nexis 3, | Civil Law Judgements, 2018-VoI (3) Premier Publishing Co. 4. C.K Takwani, Indian Penal Code, Eastern Book Company 5, | AIR 2011 (Vol- 98), 961-1936. ‘SW.Chitaley for All India Reporter Pvt. Lid. 6, _ | Universal's Criminal Manual, 2021, Lexis Nexis LEXICONS — 1. | Aiyar P Ramanathan, Law Lexicon, 2005 >, | Garner Bryana, Black's ‘Law Dictionary, 7th Edition, 1999 - INNOVATIVE 15T NATIONAL MOOT COURT COMPETITION, 2022 - \ | | WEBSITES REFERRED L Manupatra http://www.manupatra.com/ 2. Find Law http://www.findlaw.com 3. Indian Kanoon http://www. indiankanoon.com | | | \ 4, Legal Service India https://www.legalserviceindia.com 5: SCC Online http://www.scconline.com 6. Supreme Court Case Law ttp://www.supremecourtcaselaw com a iPleaders hitps://blog,ipleaders.in Lc TATENENISOPFACTS 2 ~ INNOVATIVE 1ST NATIONAL MOOT COURT COMPETITION, 2022 - Mr. Alex (comes from an economically backward family from Uttam Desh) and Ms. Siri (hailing from economically forward family from Indraprastha) used to work in an MNC in National Capital Territorial Region in 2013. They used to meet during lunch hours. In 2014 Alex changed the company for hike of Rs 5000/-. In 2015 they exchanged their numbers when they met again at a wedding function. . The frequency of their meetings increased with time and in 2017 they realized they were in love. Eventually they got married on 31.12.2019 according to Hindu rites and rituals with their parents consent in Rostampur Distt., Uttam Desh. They were happy in their initial days of marriage however on 15.01.2020 Siri left her marital home and the next day Alex and his parents found her at her mother’s home. Yet they condescended to give her a chance. . On 25.01.2020 Siri lodged a complaint at Mauj Khas Police Station, Indraprastha under sec. 498-A, IPC alleging mother in law used to taunt her that she had done ‘black magic’ on her son and alleged, showing injury marks on her hand and shoulder, that her husband and in laws tortured her. Police closed the matter on lack of sufficient evidence and the injury marks appeared to be accidental. During the investigation one of neighbours of Alex confirmed that Alex's bike was damaged in accident. |. One day Mr. Alex told Mr. Paul that he was in deep love with Ms. Siri but she left her as she was demanding a big apartment to live separately with Alex for which Alex even asked his friend for a loan to fulfill her wishes. Subsequently, on Mr. Paul’s suggestion, Alex filed a petition for restitution of conjugal rights in the family court of Rostampur distt. Of Uttam Desh on 25.06.2020. But on continuous failure to serve summons, the family court passed ex-parte order in favour of Alex. On 15.04.2020 Siri moved to Channi for her joining. One day she disclosed to her boss Mr. S Raja that her husband was an alcoholic and used to harass her physically so she left the marital home. On the very next day she agreed to enter into sec.ond marriage with Mr. $ Raja on his marriage proposal without any hesitation and filed for divorce on 30.07.2020 in family court, ‘Naalpur distt. Of Channi on Mr. S Raja’s advice. The court granted an ex-parte decree on 01.08.2021 in favour of Siri as the summons were not served to Alex having shifted to anr place. The family court of Rostampur distt gave decision in favour of Alex on 01.07.2021. One day Alex came to know that Siri was available on one matrimonial site looking for a husband stating a status of divorcee. When he encountered her she asked for privacy stating she was married to someone else. ~ INNOVATIVE 1ST NATIONAL MOOT COURT COMPETITION, 2022 - 7. On 27.02.2022 Alex approached the HC of Channi in appellate jurisdiction to challenge the decree passed in favour of Siri with additional prayer to charge her for bigamy. While Siri challenged the ex-parte order of restitution of conjugal rights on 28.02.2022 in HC of Uttam Desh along with application in the SC for the transfer of both petitions in the HC of Uttam Desh which was done by the SC on 15.03.2022. NA RIUNAL MOOT COURT CUNNE EMENT OF JURISDI The Respondent hereby 5 Bete Sate . nee that the appellant has approached the Hon’ble High Court of Uttam ijudicate over the matter under Section 96! of The Code of Civil Procedure, 1908. the time being in force, an ‘authorized to hear riginal Decrees aly provided inthe body of this code or by any other law for exercising original jurisdiction to the court " Section 96: Appeal from O! dd by any Court appeals from the decisions of Uch COO". co expat. 2. An appeal ma} lie from an original jecree PF rte. ' 3. No rea shell lie from a decree passed by the Court with the consent of parties. : No ap II Tie, except on a question wr jaw, from a decree in any suit of the nants cognizable by Courts o Sout ce ppeal shal re amount a value of te af ta ratter ofthe oieinal suit doex exceed en housand runeestl Small Causes. “INNOVATIVE 15* Nation TION, 2022 - ATIVE 1) 101 eer NA’ TC TONAL MOOT COURT COMPETT , 202 WHETHER DECREE PASSED IN Rays F v. OR LIAI D Bi a ‘OUR OF SIRI IS VALID LE TO BE SE’ WHETHER ORDER OF RESTITUTION OF CONJUGAL RI IGHTS PASSED IN FAVOUR REST = TON OF CON. MR ALEX IS VALID OR LIABLE TO BE SET ASIDE? oF SIDE? WHETHER SIRI CAN BE PROSECUTED FOR BIGAMY OR NOT? “INNOVATIVE IT NATIONAL MOOT COURT COMPETITION, 2022 - SUMMARY OF ARGUEMENTS WHETHER DECREE PASSED IN FAVOUR OF SIRI IS VALID OR LIABLE TO BE SET AsIDE? sis most humbly submitted before this honourable court that the ex parte divorce decree passed in avout of Siri is not valid as the other party was not given a chance to be heard as the summons were not duly served to the respondent Mr. Alex and the respondent in the present case has succesfully established that the said ex parte decree had been obtained intentionally on the basis of faud so the same is liable tobe set aside, WHETHER ORDER OF RESTITUTION OF CONJUGAL RIGHTS PASSED IN FAVOUR OF MR ALEX IS VALID OR LIABLE TO BE SET ASIDE? Itis most humbly submitted before this honourable court that the respondent filed for restitution of conjugal rights under section 9 of Hindu Marriage Act, 1955 which protects the sacred union of marriage. The order passed in the respondent's favour is in compliance with the provisions of sec. 9 of Hindu Marriage Act, 1955 and order IX rule 6(1)(a) of CPC so the said order in favour of the respondent is completely valid WHETHER SIRI CAN BE PROSECUTED FOR BIGAMY OR NOT? Itis most humbly submitted before this Hon’ble court that the appellant has misused the power of court and has taken an undue advantage by intentionally obtaining the ex parte divorce decree which renders the divorce decree invalid in addition to this the appellant married second time on the basis of invalid ex parte divorce decree while her spouse was alive hence she should be prosecuted for bigamy. ~ INNOVATIVE 1st NATIONAL Moot COURT COMPETITION, 2022 - HSYOUR OF SIRLIS LIABLE'TO BE Se i ERE ee Rae | Ca 1, Ttismost humbly submitted before this Hon'ble Court that the ex parte divorce decree passed in favour of Siti is not valid as the other party were not duly served to the respondent? Mr Alex and the respondent in the present case has successfully established that the said ex Parte decree had been obtained intentionally on the basis of fraud*, . 2 ‘as not given a chance to be heard? as the summons The respondent humbly submits the application for condonation of delay of 117 days under section 5 of the limitation act, 1963 1.1] SUMMONS WERE NOT SERVED ‘The respondent can challenge the ex Parte decree passed against him in two ways. The Supreme Court in Neerja Realtors Pvt, Ltd. vs, Janglu’ held that a defendant against whom an ex parte decree is passed has two options: the first isto file an appeal. The second isto file an application under Order 9 Rule 13. The defendant can take recourse to both the proceedings simultaneously. The initiator of the divorce ‘must ensure his or her attorney offers the service of the divorce notice properly to prevent Fejection of the case or invalidation of the judgment. ‘An Application Under Order 9, Rule 13: Order 9 Rule 13 states that while setting aside ex-pate decree, the defendant may apply to the Court by which the decree was passed fo an order to sti aside and ifthe Court is satisfied that ‘he summons were not duly served, or that he was prevented by any sufficient means from “Ppearing when the suit was called on for hearing, the Court may make such order setting aside the decree against him as it thinks fit, and shall appoint a day for Proceeding with the suit, Provided that the decree was of such a nature that it could not be set aside as against such defendant but it may be set aside as against all or any of the other defendants also. Section 96-Appeal from original decree(2) An appeal may lie from an original decree passed ex Parte. Unless expressly provided, appeal lies from any decree passed by the court. In cases, where the value of suit does not exceed Rs.10, 000 appeal can only be filed on question of law. eee | Vilsons Particle Board +s Ito (Central), eed : Ne 447/PN2013 £ Sweety Guy ty Gupta & Ors, FA‘ “Rea " 328 ornare Inhwar Dase R RSA No.326 of 2007 afw CRNo 57 of 2008, _— os oe ) sr - _INNOVATIVE 1°" NATIONAL MOOT COURT COMPETITION, 2022 - we? decree has been es against the Defendant as Ex-Parte appeal lies. In cases headed ‘0m more judges, the majority decision shall prevail. In case there is no majority, then the | sper cout shall be confirmed. 4 appl Jeft her marital home on 15.01.2020 and went to her mother’s home without any gale case. Dr Samir Kr. Das vs Aparna Das @ Tripti Das itis the case of the plaintiff y ¢ defendant voluntarily deserted the plaintiff without reasonable cause. sil 1.00 25.01.2020, after taking ample time of 10 days, she with a malafide intention lodged a Joint under section 498-A of IPC to harass the in laws. She did not even gave the detailed tio any specific date and time of cruelty incidents, the complaint was general against pein as Even police investigation found the injuries ,which the appellant showed during FIR sation, were accidental in nature, ah a to this, in the case of Anju v. Govt, of NCT of Delhi’, the Court noted that in the aR, no details were provided as to when the recorded instances allegedly occurred, or any facts 1p substantiate OF corroborate the allegations against relatives of the spouse. The Court also syd that the allegations agninst the respondents were fairly general and unspecific. The phiniff did not mention a date, time, month, or year when she was subjected to beating. In view of the aforementioned facts and circumstances of the case, the High Court of Bombay upheld the order of the Revisional Court and held thatthe Court had made no mistake in concluding th, apart fiom the general and omnibus allegations that roped in all relations, there is no corded material to justify the framing of charges under Section 498A IPC. Under order IX rule 13 of Code of Civil Procedure an ex parte decree can be set aside if the summons were not served duly to the defendant and he was prevented from appearing on the date. In the case of Bhim Rao Swami Rao Desai vs Laxmibai And Anr the application which the defendants had filed under Order IX Rule 13 of the CP.C. was allowed and the ex parte decree was set aside. 1W.The Supreme Court in Sushil Kumar Sabharwal v. te decree. The service of summons to the party Gurpeet Singh? held that non-service of summons is a ground for setting aside an ex pal camo be a mere formality but shoul, in fact, be realty. In Naresh Chandra Agarwal . Bank ©f Baroda! the appellant application for setting aide an ex parte decree was rejected by Trial Court and subsequently by the High Cour asi considered the validity of notice of substiuton Seatto the permanent residential address rather than his actual present residence. ‘0, eK Das vs Aparna Das @ Tripti Das, Title Sut No. 37 of 1994 ‘Blin Rao wt OF Net Of Delhi &Ors.(2019 )CRL-REV.P. 730/2016 "sti? S¥ami Rao Desa vs Laxmibai And An. AIR 1966 Kant 12 ‘umar Sabharwal v. Gurneet Sinoh 2002 (3) SCR 352 -INNOVATIVE 1 NATIO) NAL MOOT Count competion, 2022 - ra Singh ¥. Financial Comm. Coop't Si villa 5 ‘ fendant without providing an Opportunity of| is against the principles of natural Justice, it igence but he did not initiate the "The SC held that the Court m: powers, apart from Order 9 CPC to set aside an Xx parte decree. An ex. tothe non-appearance of the counsel ofa party, efforts t0 find about the respondents, ay exercise its inherent “Parte decree passed due ‘owing to the fact that the Party was not at fault, can be set aside in an appeal preferred against it. So is the case, where the absence of a defendant is caused on account of a mistake of the court, [1.2] THE PRINCIPLE OF NATURAL JUSTICE 13.In India the concept of natural justice has evolved through the maxim of Audi Alterem Partem, Natural justice is a concept of civil law, which means Judgement which is given should be fair and reasonable. This maxim means “hear the other side” or no man should be unheard, both the aries have an opportunity of being heard, Justice will be given to both parties. Tis is a very Stong rule which means no one will be judged without fair hearing, The motive of this maxim 'stoprovide an opportunity to other party to respond tothe evidence against him, In reference to which the principle of natural justice can be traced from Article 14 and Article 2 of the Indian Constitution, where Article 14 states about the equality before the law and Ace 21 states about the protection of life and personal liberty. Article 21 was defined in the case of Maneka Gandhi v. The Union of India, In this case, it was held that law and procedure Which is followed should be just, fair and reasonable kind, 'S.tn regard to the above submission it can be very much relied upon that the rule of natural ‘atice!* comes into power where no partiality is done with anybody during any regulatory Activity. Rule of Audi Alterem Partem is the primary notion of the principle of natural justice. The principe also says that no one should be condemned unheard, Both the parties will get an — Sigh ¥. Financial Commr. Coop, CIVIL APPEAL NO. 3574 of 2008 eka Gat Agarwal vs, Gopi Krishnan (2013) 11 SCC 296 Gandhi v The Union of India. \Y7R ATR 597 La : _ INNOVATIVE 1°" NATIONAL MOOT CouRT COMPETITION, 2022 - iy offi hearing and justice. This maxim also ensures that fair hearing and justice will op eto wards both the parties, both the parties have right to speak. No decision will be taken ve e without hearing both the parties. Both the parties have an opportunity to protect y gves he es dent Mr. Alex was not a given a chance to be heard because of loopholes on the part ene serine officer. [1.3] GROUND FOR DIVORCE IS FRAUDULENT IN NATURE the appellant has obtained the ex parte divorce decree on the fake allegations made under i Oe 498-A IPC which clearly shows her malafide intention of taking undue advantage of a powers. The first information report which was lodged was manifestly attended with alfides and actuated with ulterior motive and the prosecution of the appellant was frivolous, vexatious, unwarranted and abuse of process'’. This Court does possess the power to invoke its iaherent powers under Section 151 of the CPC to provide relief to the applicant/defendant in uch a case where fraud and/or abuse of the process of the Court may have transpired'®. Also Article $9 would be applicable to the suit to set aside the decree either on fraud or any other ground. Article 59 would be applicable if a person affected is a party to a decree or an instrument or a contract. There is no dispute that Article 59 would apply to set aside the instrument, decree or contract between the inter se parties!”. In Ram Prakash's case’ it was held that if any order or judgment or decree has been obtained from the Court by playing fraud, it is always open to the Court to recall the order on the application of the person aggrieved and such power can also be exercised by the Appellate Court. It is also held in the above referred decision that in case of fraud, the very obtaining of such judgment and decree amounts to nullity and he ‘ay institute a suit on the ground of fraud. '8.Another case where it was noted that If a decree has been obtained by fraud or has been sbiained against a person who was not properly represented or has been passed by a Court that had no jurisdiction, it may be possible to have it varied or reversed by another Court, '%.Itis to be noted that on 15.01.2020 when Siri left her marital home and went to her mother’s home, her in laws including her husband were very much worried and tried to call her but she id not answer any of their calls. The very next day they all went to her mother’s home and “ondescended to give her a chance so the allegations on her mother-in-law torturing and “ints we "State of Punjab, (2010) 11 SCC 749 (. Nooral Hoda yo onstruction vs Manjunath Hebbar 2021 C.S. No. 125 of 2014 "Ram Prat 1a 23 Bibi Raifunnisa And Ors, 1995 SUPP. (6) SCR 110 ‘Parwal And Another vs Goni Krishan. 2013 SCC. 296-308 OVATIVE 15? NATIONAL MOOT COURT COMPETITION, 2022 k ” thi j a per for the “ ee mee ak were just for the sake of excuses to not go back and all jous actions to is appellant” 's frivol a grievous harm to the respondent’s family’s reputation societ that they had to leave the place and shift to another place. a4 the io a mbigw ously the misuse of section 498-A of IPC?’ which has become the common on co bY woman in today’s society. Females misuse the legislation that has been designed to mnselves from abuse and brutality and make false claims about their husbands in order eo the! f them or actually defame the family. oset rid 0! * section's violence is increasingly growing as well-educated women know that this section 1, This poth £01 putting the man behind bars. Section 498A was adopted in 1983, after seeing the gnizable and non-bailable and can thus be caused by a woman’s simple accusation, ch a an Mr. § Raja, appellant's boss proposed her for marriage, on the very next day when Siri ad existence and severity of recorded cases of female cruelty. . him about her marital disputes, she agreed to enter into a second marriage without any hesitation. It could be ascertained that she was ready to be married again without getting divorce from the first marriage. Even she filed for divorce on her boss” suggestion. It can be concluded that she did not want a mutual divorce because she knew Mr. Alex will never be ready for that hence fraudulently obtained the ex parte decree in her favour so the same is liable to be set aside”. Relying on the aforesaid cases and arguments, it is submitted before this Hon'ble court that the decree passed in favour of liable to be set aside "howe 5 inch v, hv. State of Puniah. (2010) 11 SCC 749 i, It c i i conjugal rights under section 9 of Hindu Marriage Act 19 : 1 fmt riage”. The order passed in the respondent’: : ; URoy ig most humbly submitted before this honourable court that the Tespondent file 55 Which protec 8 favour is in compliance IX tule 6(1 4 for *estitution 4S the sacreq tion With th of sec. 9 of Hindu Marriage Act, 1955 and order Ma) of Cpe hy SO the © Provisions favour of the respondent is completely valid, S24 order ig [2.1] VALID MARRAIGE , sacramental Nature of Marriage There are three characteristics of the sacramental nature of marriage: () tis an enduring bond of the husband and wife which is permanent an d tied even after death and they will remain together after the death, i) Once it is tied cannot be untied. Gi) Teis a religious and holy union of the bride and groom which is necessary to be performed by religious ceremonies and customary rites?3, Gv) Hindu marriage is considered as one of the most important sacraments. 35.The Hindu marriage Act 1955 has provided five conditions as pre-requisites for valid Hindu marriage™*, under section 5 of Act. Section S[{1] provides that a marriage can be solemnised between two Hindus, if the following conditions are fulfilled: i. Spouse living at time of the marriage: neither of the parties to marriage should have any spouse living at the time of marriage. ii, At time of marriage, neither party to marriage- (a) should be incapable of giving a valid consent for the marriage. (b) At the time of marriage, though capable of giving a valid consent, is suffering from any mental disorder of any such type or to such extent, that is unfit for marriage or procreating children. (c). At the time of marriage, has been subject to recurring attacks of insanity. iii, Age of the bridegroom and bride must be 21 and 18 years of age, respectively. iv. The parties must not be within the degrees of the prohibited relationship. Exception to this is only provided if the custom or usage governing them, allows such a marriage s 1a 1984 AIR 1562 2 Smt, Saroj Rani vs Sudarshan Kumar Chadha 198¢ | GakRahindra Nath Dutta ve The State AIR 1969 Cal 85 parties ‘ jssion of customs or usages gov i Boverning the partis, jon of ‘Marriage (Section 7): must not be sapindas of each oth er. Ex Ception to this 58 Drovigg, os eer of the Hindu marriage act 1955 states the solemni: ization of the formes le is may be performed by all the ceremonies and rituals of both th Hindu Mariage a, e a Hi ‘a! ‘ith the Saptapadi’® which means that taking seven none oF either a - after its completion marriage becomes complete and binding” Around the fire with 7 a it patty 10 the marriage declaring in any language shall be understood by each rs bs pay to he mariage shall pot the ring upon any ings ofthe ote. | singof the thali. rte mariage renders to be valid if it is performed between Hindu couples acc customary ceremony and rituals of each party or any one of them. sning 1 he «go itis to be noted that a marriage under Hindu law is a sacrament that requires the ab pentioned conditions of marriage, Thus, in order to constitute a valid Hindu marriage” ee nda law, parties to marriage should be monogamous, should have sound mind, should be major by age and should be beyond prohibited degree. ‘A marriage fulfilling these conditions is considered tobe valid” and have effect under the Hindu Marriage Act, 1955, 1. The marriage of the respondent Mr. Alex with the appellant Ms. Siri is completely valid as they were married by Hindu rites and rituals and all the required ceremonies®® were done. They were not ina prohibited relationship provided in the abover -mentioned section. (2.2) SECTION 9 OF HINDU MARRAIGE ACT, 1955 29. The restitution of conjugal rights is one of the reliefs that are provided to the spouses in distress in the institution of marriage by law. The restitution of conjugal rights means the re-establishment of the marital relationship between husband and wife because the prime objective of marriage is that parties will enjoy the society and comfort of each other. In the case of Harvinder Kaur vs Harmander Singh Choudhry®, under section 9 the court has power to make a decree of restitution which is the remedy available 0 enforce the return of @ spouse who has of conjugal rights withdrawn from cohabitation. The decree, if granted, orders the respondent to return within @ period of one year to the aggrieved party: s Bala Ghosh v. Suresh Chandra Ghosh, 1971 AIR 1153 St a a Ne ‘Ors Appeal (Crt) 314 of 1581 MFA 28 Laxmi Devi vs Satya Naravan And 27 Rency Mathew vs Bharath Ku ar, ay .M Ne OFS - Bhattacharjee VS- ‘Shyamal Bhattac! arjee, 2 plaurao estar otha nde V. ‘State of Maharashtré A (1985) 1564 -N du Marriage ‘Act, 1955 states about the restitution of conjugal rights*'. It states that: JOVATIVE 1" NATIONAL MOOT COURT COMPETITION, 2022 - jo of Hin A : her the ( pout any e850 cya the aggrieved party i husband or the wife, nable excuse, withdraws from the society of others™, may apply by petition to the district court for restitution of conjugal «gh quand is legal 8 iyThen, the Restitution of c jusband and the wil auties binding upon hi seek legal support from th sights. Because of this reasor jf the court satisfies with the truth of the statement made in the petition and found that there round to reject the petition, court may issue a decree of restitution of conjugal right accordingly. y. It states that both the ‘ed to perform his or her the aggrieved party can ion of conjugal conjugal rights provides specific legal rights to each part; fe at any point, in time if any of the parties failed or refus .m or her without giving any reasonable excuse then, e respective district court under the provision of restituti n, it is also considered a matrimonial remedy. ase of Saroj Rani v. Sudarshan’3 where consideration was given to 2, The Supreme Court in the cé family, togetherness and preserving matrimonial relation between husband and wife. its previous judgement given in the case of Gobind v. State of Madhya 3, The Supreme Court relied ot Pradesh*‘, wherein the court held that motherhood, procreation and child-rearing” which me: “the right to privacy protects the personal intimacies of the home, the family, marriage, ans that there can be no interference by law within the private space of a home, 5, Justice Mukherjee observed that 34, Further, in the case of Saroj Rani v. Sudarshan Kumar Chadha cr so that they can live together the purpose of Section 9 is to bring an estranged couple back togethi ina matrimonial house in amity. On the point of forcing a spouse to have sexual intercourse with her spouse, Justice Mukherjee added that the aim of the impugned Section is ‘consortium’ and not sexual intercourse. The purpose behind granting a decree under this Section is to cohabitate the couple in the same household with love, care and affection and it in no sense compels the parties to have sexual intercourse. [2.3] ORDER IX RULE 6 OF CPC, 1908 35. Under Order 9, Rule 6(1)(a) the court may proceed ex-parte and pass an ex-parte decree®® when it deems fit that the defendant has absent himself from the court on the date of hearing stated in the summons served to him in accordance with the provisions of the Code of Civil 3! Gaya vs Bhagwati (ATR 1965) ® Sushila Bai vs Prem Narayan Rai (AIR 1985), » 1984 AIR 1562, 1985 SCR (1) 303 > AIR 1975 SC 1378, 1975 CriLJ 1111, (1975) 2 SCC 14 95 1984 ATR 1562. 1985 SCR (1) 303 ae ao ica r INNOVATIVE" Nationa Moor co, iT , cedure, 1908. Order 9, rule 8(1)@) states that: Where is 104 PPE when the suit is Called on for hearin, TS and th, 18 When sum, re de of make an order that the suit shall be hear dex pate, mons duly Ndany Served? thee \ jnreference to this in the case of Bidyadhar Palg j As per Rule 1 of Order VIII C.P.C the defendant has to submit 4 written statement in 30 days from the date of service of summons?®. eption circumstance not more than 90 days from - [2] If the defendant fails to st basis of facts can adjudge the matter. [3] A decree defendant’: « However, in exe submit in such period the Court on the Passed under Rule 10 of Order VIII for the evertheless an ex parte decree, which is subject decree is passed by the competent Court despite there no failure of natural justice. default in filing a writen statement isn to Rule 13 of Order IX. 4] If a a result ex parte due notice to the party, Relying on the aforesaid cases and arguments, itis submitted before this Hon'ble Court that the order of restitution of conjugal rights passed in favour of Mr. Alex is valid, ” Prachi fai Prakash Saraf F.A. No. 150/2015 "Radar Pal Pal eit uri Pala 207101 | so. ofcoutt and has taken an undue advantage by intentionally obtaining the ex parte divor = ce decree 15 most humbly submitted before this Hon’ble court that the appellant has misused sused the power which aaa the divorce an invalid in addition to this the appellant married second time on | the basis of invalid ex parte divorce decree while her spouse was alive hence she should be prosecuted for bigamy. [3.1] BIGAMY AN OFFENCE 4g. When a person marries another person, despite the fact that he/she has been married legally before. In India, a person who has committed the offence of bigamy isto be convicted under Section 494 of IPC. 41. Essentials of Section 494 of IPC: «The first marriage should be according to the law ie, it should be legal ‘© Second marriage should have taken place «The first marriage should be existing The spouse must be alive © Both marriages should be valid 42, Essential ingredients for constituting the offence of bigamy: «Existence of a previous marriage: One of the essential ingredients of the offence of bigamy is the existence of a previously contracted marriage. It attaches criminality to the act of second marriage by a husband or by a wife who has a living wife or husband. The second marriage is void Iis, therfore, essential to establish the offence of bigamy that atthe time of the second marriage, the person was already married. The first husband or wife should be alive when the second marriage was contracted. Second Marriage has to be valid in itself: In order to attract the provisions of this section, not only the first marriage but also the second marriage should be a valid one. This means that all the necessary ceremonies required by the personal laws governing the parties to the marriage should have been duly performed” «Second marriage to be Void solely by reason of First Husband or Wife Living'': The offence of bigamy is made out only when the second marrage is rendered void by reason of _ © R Chandra Manikvamma, vs B. Sudarsana Rao Alias Saleem 1988 CrillJ 1849 INNOVATIVE 1ST NATIONAL MOOT COURT COMPETITION, 2022 is aking place during the life of the first wife or husband. It has no application to cases where @ second marriage is permitted under the personal laws governing the partes, | 3.2] VIOLATION OF PRINCIPLES OF NATURAL JUSTICE te principle of natural justice comes into force when no prejudice is caused to anyone in any administrative action. The principle of Audi Alterem Partem is the basic concept of the principle of otal justice. This doctrine states the no one shall be condemned unheard. This ensures a fair eating and fair justice to both the parties, Under this doctrine, both the parties have the right to | ageak. No decision can be declared without hearing both the parties. The aim of this principle is to givean opportunity to both the parties to defend themselves. | 4, Audi alteram partem means ‘hear the other side’, or ‘no man should be condemned unheard’ or

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