(TEAM CODE: IN THE HIGH COURT OF UTTAM DESH Case filed under Section 96 of the Code of Civil Procedure, 1 908. "2 MEMORIAL ON BEHALF OF THE APPELLANT IN CASE Ms. Siri & Ors. .... State of Uttam Desh & Anr. .. N TO THE HON’BLE CHIEF JUSTICE & HIS COMPANION UPON SUBMISSIO) |GH COURT OF UTTAM DESH JUSTICES OF THE HI MEMORANDUM ON BEHALF OF PETITIONER DRAWN AND FILED BY THE COUNSEL FOR THE PETITIONER“INNOVATIVE 1" NATIONAL MOOT COURT COMPETITION, 2022- TABLE OF CONTENT: LIST OF ABBREVIATIONS 04 INDEX OF AUTHORITIES 06 i. Cases Referred 06 ii. Statutes & Acts Referred 07 iii, Books Referred 08 iv. Lexicons 08 v. Websites Referred 08 STATEMENTS OF FACTS 09 STATEMENT OF JURISDICTION 10 ISSUES RAISED ul 1. Whether decree passed in the favour of Siri is valid or liable to be set aside? u 2. Whether order of restitution of conjugal rights passed in favour of Mr. Alex is a valid or liable to be set aside? 3. Whether Siri can be prosecuted for bigamy or not? u SUMMARY OF ARGUMENTS 12 ARGUMENTS ADVANCED 13 1. The decree passed in favour of Siri is valid B [1.1] The defendant did not appear 1B [1.2] Cruelty “A ground for divorce” 14 2. The order of restitution of conjugal rights passed in favour of Mr. Alex is liable to be set aside ie [2.1] Summons were not served 16- INNOVATIVE I" NATIONAL MOOT COURT COMPETITION, 2022- (a) Sufficient cause for non-appearance on the date of hearing 16 [2.2] Principle of natural justice 18 [2.3] Restitution of conjugal rights violates her fundamental rights 19 (a) Violative of Article 19 19 3. Siri cannot be prosecuted for bigamy 2 [3:1] Section 494 of Indian Penal Code, 1860 2 (a) Section 495 of Indian Penal Code, 1860 23 [3.2] The first marriage was not subsisting 24 (a) Ex parte divorce dissolved the marriage 24 26 PRAYER~ INNOVATIVE 1" NATIONAL MOOT COURT COMPETITION, 2022- LIST OF ABBREV ALR. ALL INDIA REPORTER All ALLAHABAD ANLER. ‘ALL ENGLAND REPORTER AP ANDHRA PRADESH Bom Bomsay CLR. COMMONWEALTH LAW REPORTER Cal Carcurra | Co. Company Comm. COMMISSIONER | cwN | Caucurta WEEKLY NOTES | Del DeLit | | Edn. EDITION | j eg BYEMPLUM GRATIA (FOR EXAMPLE) iS BENCH KB. ue LAHORE Lah LAW REPORTER LR mo ) ™m- INNOVATIVE I" NATIONAL MOOT COURT COMPETITION, 2022- Sec. SECTION cPc CobE OF CIVIL PROCEDURE & AND Pc INDIAN PENAL CODE NoJ/no. ‘NUMBER AnrJanr. ANOTHER Vs.v. VERSUS- INNOVATIVE 1 NATIONAL MOOT COURT COMPETITION, 2022- CASES REFERRED S.NO NAME OF THE CASE CITATION 1 Bhanu Kumar Jain vs Archana Kumar & Anr Appeal (CIVIL) 8246 of 2004 2. MS. Khalsa vs Chiranji Lal and Ors. AIR 1976 All 290 3. Nalini Shyam Moundekar, Nagpur vs Ito. ITA Nos. 516, 517 & 518/ Nag/ 2014. 4. Kumara Pillai vs Thomas AIR 1961 Ker 287 Udaiveer Singh S/O Bhagwan Singh vs Smt 5 Civil Revision Petition No. 69/2019 Kusum Singh W/O Udaiveer Narayan Ganesh Dastane vs Sucheta 6 1975 AIR 1534, 1975 SCR (3) 967 Narayan Dastane 7. | Vijay Gulati vs Radhika & Ors CS(OS) No.1313/2008 8. Suman Singh vs Sanjay Singh CA Nos.71 14-7115 OF 2014 9 Sangeeta vs Hitesh Kumar MAT.APP. 103/2010 10. ‘Smt. Mayadevi vs Jagdish Prasad SLP (C) NO. 3686 OF 2006 shim Rao Swami Rao Desai vs Li ibai and Bhim Rao Swami Rao Desai vs Laxmibai and’ | 1 yo¢6 Kant 112 Anr. 12, | Sushil Kumar Sabharwal v. Gurpeet Singh 2002 (3) SCR 352 13. Naresh Chandra Agarwal v. Bank of Baroda (CIVIL) 1123 of 2001 14. Neerja Realtors Pvt. Ltd. vs. Janglu (2018) 2 SCC 649 15. Rabindra Singh v. Financial Commr, Coop C.A NO. 3574 of 2008 16. ‘Ram Prakash Agarwal vs. Gopi Krishnan (2013) 11 SCC 296 1978 AIR 59 17. | Maneka Gandhi v. The Union of India- INNOVATIVE 1* NATIONAL MOOT COURT COMPETITION, 2022- 18. _| Mohinder Singh vs Shanti Devi 9 (1973) DLT 242, 1973 RLR 479 19. | Mrs. Aruna Gordon vs Mr. G.V. Gordon 2000 VAD DL 97 20. | T Sareetha v. T. Venkata Subbaiah AIR 1983 AP 356 21. | Sukram vs Smt. Mishri Bai AIR 1979 MP 144 22. | Atmaram vs Smt, Narbada Devi AIR 1980 RAJ 35 Tirath Kaur v. Kripal Singh, AIR 1964 2. : pans AIR 1964 PJ 28 Punjab 24, | K.S. Puttaswamy v, Union of India WP. (CIVIL) No. 494 of 2012 25. | Joseph Shine v. Union of India WP. No. 194 OF 2017 ‘Shanti Devi v. Ramesh Chandra Roukar and 26. AIR 1969 Pat 27 Ors. ‘Smt. Vibha Shrivastava v. Dinesh Kumar 21. AIR 1991 MP 346 Shrivastava 28. | Pashaura Singh vs. State of Punjab, AIR 2010 SC 922 Bhaurao Shankar Lokhunde v. State of 29. 1965 AIR 1564, 1965 SCR (2) 837 Maharashtra 30. ‘Kanwal Ram And Ors vs The Himachal 1966 AIR 614, 1966 SCR (1) 539 "| Pradesh Admn 31. | Smt. Padi And Ors. vs Union Of India AIR 1963 HP 16, 1963 CriLJ 760 ye | 2 hanes Manikyamma, vs B.Sudarsana | 9 5 149 Rao Alias Saleem 33. | Santosh Kumari vs. Surjit Singh AIR 1990 HP 77:1990 CrLJ 1012 34. | Krishna Gopal Divedi v. Prabha Divedi AIR 2002 SC 389 35. | Baby Kar vs. Ram Rati 1975 CrLJ 836 (Cal) an & yg, | Linear’ Obwlamma vs T. Venkata Reddy pera ser tio "| Ors, 37. | Krishna kant Nag vs. State of Tripura, 2012 CrLJ 2179= INNOVATIVE 1" NATIONAL MOOT COURT COMPETITION, 2022- Revanasiddaswamy H.M. v. State of 38. — 1990 CrLJ 1001 (Kant) 39. | Santi Deb Benna v. Kanchan Prava Devi, Air 1991 SC 816;1991 CrLJ 660 40. | Raj Kumari vs. Kalawati 1992. CrLJ1373 (All) STATUTES AND ACTS REFERRED 1. | The Hindu Marriage Act 1955 2. | The Code of Civil Procedure 1908 3. | The Indian Penal Code 1860 4. | The Code of Criminal Procedure 1973, BOOKS REFERRED 1. _ | Ratanlal & Dhirajlal, The Indian Penal Code,35” Edition, Lexis Nexis 2. _ | Civil Law Judgements,2018-Vol(3), Premier Publishing Co. 3, | CK. Takwani, Indian Penal Code, Eastern Book Company 4. | S.W. Chitaley for All India Reporter Pvt Lid. 5, | Universal's Criminal Manual, 2021, Lexis Nexis LEXICONS 1, _ | Aiyar P Ramanathan, Law Lexicon, 2005 > | Garner Bryana, Black's Law Dictionary, ™* Edition, 1999 WEBSITES REFERRED 1. | Manupatra http://www.manupatra.com/ 2, | Find Law http:/www.findlaw.com~ INNOVATIVE I NATIONAL MOOT COURT COMPETITION, 2022- Indian Kanoon http://www. indiankanoon.com Legal Service India https:/;www.legalserviceindia.com ipleaders https://blog.ipleaders.in SCC Online http://www.scconline.com Supreme Court Case Law http:/Avww.supremecourtcaselaw.com= Her boss Mr. S Raja then proposed her for marriage for - INNOVATIVE 1" NATIONAL MOOT COURT COMPETITION, 2022- NVAVY 'S OF FA _ Ms. Siri and Mr. Alex (belonging to an economically backward family from Uttam Desh) 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. They met again in 2015 at a wedding function and exchanged their numbers. . The frequency of their meetings increased with time and in 2017 they realised they were in love. Eventually they got married on 31.12.2019 according to Hindu rites and rituals with their parents’ consent in Rostampur Dist., Uttam Desh. On 15.01 2020 Siri left her marital home. On 25.01.2020 Siri lodged a complaint at Mauj Khas Police Station Indraprastha under sec 498A, TPC alleging mother in law used to taunt her that she had done “black magic * on er 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. n 25.06.2020 Mr, Alex filed a petition for restitution for conjugal rights inthe famiy court of Rostampur Dist, Uttam Desh, Subsequently court issued summons to Siri but It never reached siri hence family court passed ex-parte_ order in favour of Mr. Alex on Ol 07.2021. While Siri moved to Channi to join her new job on 15.04.2020 At office she often used to avoid gatherings and meetings but one day on her Boss Mr. S Raja's insistence she told him about her marital disputes that her husband used to harass her physically so she left her marital home. which she agreed. On 30.07.2020 she filed a divorce petition in the family court of Naalpur distt, Of Channi on grounds of ‘cruelty. Due to non appearance of Mr. Alex on continuous summons, the court passed an ex-parte decree in favour of Siri on 01.08.2021. Sir then entered into a mariage agreement with Mr. S Raja ered Siri to clear the things she told him that she was married to One day Mr. Alex encount 12.2022 Mr. Alex approached the HC someone else and asked him to respect her privacy. On 27.0: of Channi to challenge the decree passed in favour of Siri with prayer to charge her for bigamy. While Siri challenged the ex parte order passed in favour of Alex in HC of Uttam Desh on 28.02.2022 along with application in SC to transfer both of the petitions in HC ‘of Uttam Desh which was done by the SC on 15.03.2022.“INNOVATIVE I" NATIONAL MOOT COURT COMPETITION, 2022- ATEMENT OF JURISDICTION ‘The petitioner hereby approaches the Hon’ble High Cour of Uttam Desh to hear and adjudicate over the matter under Sec. 96! of The Code of Civil Procedure, 1908. riginal Decrees Ten dy fs code by ay oer aw ote Sine Ne force, isdiction to the court ‘authorized to hear ‘ection 96: Appeal from 0: 1. Save where otherwise expressly Provi all Te from every decree passed by any Cou ‘exerising orginal ju appeals from the decisions of such Cou Fan appeal may lie fom an original dec passed ex parte. 5. No appeal sali from a dere passed By the Court with the consent of partis uesion of law, from a deees in of phe nature cognizable by Courts of Sal {does exceed fren thousand runees). “4 No appeal shall li, except om 8 ‘Causee when the amount or vaie of the cthiect-matter ofthe ovina stINNOVATIVE 1" NATIONAL MOOT COURT COMPETITION, 2022- WHETHER DECREE PASSED IN THE FAVOUR OF SIRI IS VALID OR LIABLE TO BE SET ASIDE? | WHETHER ORDER OF RESTITUTION OF CONJUGAL RIGHTS PASSED IN FAVOUR OF MR. ALEX IS VALID OR LIABLE TO BE SET ASIDE? WHETHER SIRI CAN BE PROSECUTED FOR BIGAMY OR NOT?~ INNOVATIVE 1 NATIONAL MOOT COURT COMPETITION, 2022- ISSUE NO.O1 WHETHER DECREE PASSED IN THE FAVOUR OF SIRI [S VALID OR LIABLE TO BE SET ASIDE? It is most humbly submitted before this Hon'ble court that the ex-parte divorce decree passed in favour of Siri is valid as the defendant did not appear on the date of hearing leading to the ex-parte decree and there is a completely valid ground for divorce i.e., the ground of cruelty, in favour of Ms. Siri which made the case to be heard in proper time as the appellant was the one who was suffering. ISSUE NO.02 WHETHER ORDER OF RESTITUTION OF CONJUGAL RIGHTS PASSED IN FAVOUR OF MR. ALEX IS VALID OR LIABLE TO BE SET ASIDE? It is most humbly submitted before this Hon’ble court that the ex-parte order of restitution of conjugal rights passed in favour of the respondent is liable to be set aside as the summons were not duly served to the appellant and she was not given chance tu be heurd. There was no execution of the restitution of conjugal rights decree by the respondent Mr. Alex which renders the same as worthless. ISSUE NO. WHETHER SIRI CAN BE PROSECUTED FOR BIGAMY OR NOT? It is most humbly submitted before this Hon’ble court that for a person to be prosecuted for bigamy under Sec. 494 of the Indian Penal Code, 1860 he or she must have a husband or wife living at the time of second marriage but in the present case Ms. Siri had an ex-parte divorce decree in her favour which comes under the exception of section 494 of IPC. So, her marriage with Mr. Alex was not subsisting at the time of second marriage hence she cannot be prosecuted for bigamy.= INNOVATIVE 1" NATIONAL MOOT COURT COMPETITION, 2022- DECREE PASSED IN FAVOUR OF SIRLIS YALID. ee LEDS x 4 ‘s ébbeigheat re this hon’ble court that the ex parte divorce decree passed in 1 did not appear on the date of hearing leading the ground of cruelty, in 1. Itis most humbly submitted befo to the ex favour of Siri is valid as the defendant ly valid ground for divorce i.e. parte decree and there is a complete! fe to be heard in proper time as the appellant wai favour of Ms. Siri which made the cas is the one who was suffering. court against the party without heard or knowledge of the | 2. Any decree which is passed by the c (f files the suit or plaint in the court, the te”, When a plainti y the court but atthe date of hearing the defendant does duly served’, that court has | party is called a decree of Ex Part service of the summons is being done by jowledge that the summons was not appear and the court has the kn this decree, without the presence of the | the power to pass the decree against such person, defendant’ is known as Ex Parte decree, The court will pass this decree without hearing the defendant. 1.1] THE DEFENDANT DID NOT APPEAR the spouses reside in different states and cannot me cases of divorce, in the same place to finalize the divorce. For exam in some extreme a delay in the 3. Purpose of Ex-parte : In sor easily meet at the same time ple, one spouse may move away to evade the divorce proceedings or f0 join a new partner. I spouse at all. Without ex parte, this could cause cases, no one can find the other s the case can continue with the spouse who g. With ex parte, case or prevent it from happenin led for the divorce’. remains in the area where he or she fil = To file for ex parte divorce, the filing party must live within the 4, Requirements of Ex-parte jurisdiction of the court for a specified minimum time. Each spouse must be fully aw: .¢ for an ex-parte to take place. This can be done with a personal notice, mailed divorce + third-party server. However, the it needs to be done so at the ble opportunity unless doing 50 are of the divorce courts serve this person, ould cause harm to the serving party. The initiator petition o first reasonal “gna Kumar & Anr. Appeal (Civil) 8246 of 2004 IMS Khalsa vs Chirani Lal And Ors AIR 1976 All 290 «Nolin Shyam Moundekar, Nagpur vs Ito, ITANOS 516,5178&518/Nag/2014. $ Kumara Pillai vs Thomas AIR 1961 Ker 287 © Tidatveer Sinok SIO Bhagwan Sinok ve Sm. Kusurt ‘sinoh W/O Udaiveer Civil Revi 2 Bhanu Kumar Jain vs Archi sion Petition No. 69/2019“INNOVATIVE I" NATIONAL MOOT COURT COMPETITION, 2022- ofthe divorce must ensue his or her attomey offers the service ofthe divorce notice properly to prevent rejection ofthe case or invalidation of the judgment. 1,2] CRUELTY “A GROUND FOR DIVORCE” Every relationship goes through different phases so does a marriage, but is it valid to abuse the rights that the spouses have over each other? A marriage never comes with a condition, in fact it is a tag to a relationship and no person marries to eventually get divorced. Everyone puts an effort to save their relationship by keeping aside all the differences because marriages in India hold major importance “put things are different when you are no longer able to handle the situations. What is cruelty? mere quarrel, petty outrageous behaviour or differences Cruelty refers to violent acts. However, elty because this is something that is common between the spouses does not come in the ambit of eru ducts that would amount to cruelty should be grave and severe in ways mean physical violence. Though physical violence is an rocess of ill-treatment or in a day to day married life. Con nature. Grave violence doesn’t al essential factor that constitutes cruelty but apart from that a continuous P mental or physical torture to either of the spouse would also amount cruelty. ~ Sec. 498-A of Indian Penal Code, 1860: ve of husband of woman subjecting her to eruelty- nto cruelty shall be punished with Husband or relati whoever being the husband ve of the husband of a woman, subjects such woma or the relati and shall also be liable to fine. imprisonment for aterm which may extend to three years Explanation, - For the purposes of this section, “cruelty means" — likely to drive the woman to commit sui ature as is ‘the woman; or (@) any wilful conduct which is of such a. cide or to cause grave injury or danger to lif, limb or health (whether mental or physical) of (by harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property OF valuable security or is on account of failure by her or any person related to er tomeet such demand. 4, Cruelty as a ground for Divorce” The physical violence on the spouse. fh not just the spouse's knowledge but even «Having affairs or committing adultery wit publically accepting it. ruses is falsely accused of committing adultery. ¢ Andalso in cases where either of the spot _= INNOVATIVE I" NATIONAL MOOT COURT COMPETITION, 2022- © The constant manifestation of agony, rage with the addition of yelling or abusing at the spouse. © Demoralizing and restricting the spouse by every means to be an independent individual and compelling the spouse to be in a marital relationship where the spouse is left with no other option but to depend on the other. © Not disclosing any fact or incident of an acquired sexually transmitted disease while they are already into marital life. And the list goes on. 5. Mental cruelty® may consists of verbal abuses? and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party'®. 6. In the landmark judgement of Mayadevi Vs. Jagdish Prasad'', the Supreme Court held that any kind of mental cruelty faced by either of the spouses not just the woman but men as well can apply for a divorce on grounds of cruelty. ‘The main intention behind all these acts is to safeguard a woman’s dignity in her matrimonial home. Matrimonial relationships between the wife with her husband and her in-laws, their different cultures, state of health and their daily interactions determine cruelty. On the basis of the submissions given above the ex-parte divorce decree passed in favour of Siri is completely valid. Relying on the aforesaid cases, it is submitted before the Hon'ble Court that the decree passed in favour of Siri ‘Vijay Gulati vs Radhika & Ors CS(OS) No.1313/2008 ° Suman Singh vs Sanjay Singh, C.A. Nos.7114-7115 OF 2014 " Sanoeeta vs Hitesh Kumar. MAT.APP. 103/2010= INNOVATIVE I* NATIONAL MOOT COURT COMPETITION, 2022- ISSUE NO.02 8. It is humbly submitted before this Hon'ble court that the ex-parte order of restitution of conjugal rights passed in favour of the respondent is liable to be set aside as the summons were not duly served to the appellant and she was not given chance to be heard. There was no execution of the restitution of conjugal rights decree by the respondent Mr. Alex which renders the same as worthless 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 is to file an appeal. The second is to 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 rejection 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-parte decree, the defendant may apply to the Court, by which the decree was passed for an order to set it aside and if the Court is satisfied that the summons were not duly served, or that he was prevented by any sufficient means from appearing 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. When a decree has been passed against the Defendant as Ex-parte appeal lies. In cases headed by two or more judges, the majority decision shall prevail. In case there is no majority, then the decree of lower court shall be confirmed. (a) Sufficient Cause for Non- Appearance on the Date of Hearing 2. Sufficient cause: Where sufficient cause is shown, the decree shall have to be set aside. The term ‘sufficient cause’ is not susceptible of an exact definition and no hard and fast rule can be laid downnegligence, 3. Rule 13 of Order IX of Code Of Civil Procedure reads as under: “Setting aside decree ex-parte sp defendant — east In any case in which a decree is Passed a; which the decree was Passed for an order to set it asi Was not duly served, or that there was suff gansta defendant, he may apply tothe Cour hy ide, an he satisfies the Court that the summons cient for his failure to appear when the suit was called on for hearing, the Court shall make an order ‘setting aside the decree as against him upon such ‘terms as ‘0 costs payment into Court or otherwise (sic) as it thinks fit, and shall appoint a day for with the suit.” Proceeding * Under order IX rule 13 of Code of Civil Procedure an ex-parte decree can be set aside if the Simmons 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."3 the application which the defendants had filed under Order IX Rule 13 of the C.P.C. was allowed and the ex-parte decree was set aside. . The Supreme Court in Sushil Kumar Sabharwal y. Gurpeet Singh’ held that non-service of summons. is a ground for setting aside an ex-parte decree. The service of summons to the party cannot be a mere formality but should, in fact, be teality. In Naresh Chandra Agarwal v. Bank of Baroda'> ‘ppeliant application for setting aside an ex-parte decree was rejected by Trial Court and subsequently by the High Court as it considered the validity of notice of substitution seat to the Permanent residential address rather than his actual present residence, Rabindra Singh v. Financial Commr. Coop"®., an ex-parte decree was passed against the defendant ‘who was residing in foreign country for the past 25 years and has never received any notice though the plaintiff had knowledge of his correct address. Summons were effected to the village address. The Court held that ex-parte decree passed in the event of non-appearance of the defendant without Providing an opportunity of hearing to him caused prejudice to defendant and it is against the Principles of natural justice. 17, The appellant Ms Siri was mentally disturbed by her marital disputes to such an extent that she, with her family, has to leave the place of her residence to move to a new location for her mental peace and sanity. The police officer serving summons could have served them by due diligence but he did not initiate the efforts to find about the respondents. '"The SC held that the Court may —_ i. 2 ‘(Bhim Rao Swami Rao Desai vs Laxmibai And A AIR 1366 Ket u util Kumar Sabharwalv. Gurpet Singh 202 (3) SCR 352. 1: laresh Chandra Agarwal v. Bank of Baroda Appeal (civil) ee | "Rabindra Sinoh v, Financial Commr. Coon CIVIL. APPFAI.NO. |~ INNOVATIVE 1" NATIONAL MOOT COURT COMPETITION, 2022. exercise its inherent powers, apart from Order 9 CPC to set aside an ex-parte decree, An €x-parte decree passed due to the non-appearance of the counsel of a party, 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. [2.2] PRINCIPLE OF NATURAL JUSTICE 18. 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 Parties have an opportunity of being heard, Justice will be given to both parties. This is a very strong rule which means no one will be judged without fair hearing. The motive of this maxim is to provide an opportunity to other party to respond to the evidence against him. 19. In reference to which the principle of natural justice can be traced from Article 14 and Article 21 of the Indian Constitution, where Article 14 states about the equality before the law and Article 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, 20. In regard to the above submission it can be very much relied upon that the rule of natural justice”? 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 principle also says that no one should be condemned unheard. Both the parties will get an opportunity of fair hearing and justice. This maxim also ensures that fair hearing and justice will be done ‘owards both the parties, both the parties have right to speak. No decision will be taken by court without hearing both the parties. Both the parties have an opportunity to protect themselves. 21. The appellant Ms. Siri was not given the chance to be heard because of the loopholes on the part of the serving officer hence the decree is against the principles of natural justice, [2.3] RESTITUTION OF CONJUGAL RIGHTS VIOLATES HER FUNDAMENTAL RIGHTS M.As per Section 9 of The Hindu Marriage Act, 1955 the important elements for implementing the "stitution of conjugal rights are: * Withdrawal of a spouse from the other spouse's society ona Gandhi. The Union of India. 1978 ATR $97~ INNOVATIVE 1" NATIONAL MOOT COURT COMPETITION, 2022- * Without any reasonable excuse?°, © The Court is satisfied with the Petitioner’s statement. * There is no legal ground for dismissing the petition p3- In the present case the appellant had a valid reason to withdraw from her husband's society. She did not do it wilfully she was forced, mentally tortured to such an extent that she had to take the step. 14. In the case of T. Sareetha v. T. Venkata Subbaiah?', the Andhra Pradesh High Court declared Section 9 of the HMA, 1955 as unconstitutional for being violative of the right to privacy and human dignity gusranteed under Article 21 of the Constitution of India, Justice P_A. Choudhary observed that Section 9 is the grossest form of violation of the right to privacy. Forcing a spouse to have sexual relations with her spouse deprives her of the right to control spouse {0 prolong the voluntary union of her with her sp ouse in their relationship. The state by coercion can neither soften Me Ged Mating Geter ¢ cole oe co che te misunderstanding between them, ji purpose, rather it is violative of ri VIOLATIVE OF ARTICLE 19 VIOLATIVE OF ARTICLE 19 25. The decree of restitution of conjugal rights violate: * Freedom of association 19(1)(c) Freedom to reside or settle in any part of India (19)(1 ne) * Freedom to practice any profession 19(1)(g) Freedom of association under Article 19(1)(c): a of a decree of restitution of conjugal rights compels a spouse to live with his/her spouse against his/her will. This violates the freedom of association guaranteed under Article 19 of the of India, In the case of Sukhram v. Misri Bai Constitution ?2, the wife left her husband because her father-in-law had an evil eye on her and the husband treated her badly. Even after that, the Madhya Pradesh High Court granted a decree of restitution to the husband. It can be concluded that If she was molested by her father-in-law because of her association with her husband due to the decree, then the decree of the court would be responsible for the mishap. Further, in the case of Atma Ram v. Narbada Devi”, the Rajasthan High Court granted a decree of ‘stitution in favour of the wife even when the husband clearly stated that he does not want to live ‘ith her. This clearly violates the freedom of association of the husband, So | ult. Aruna Gordon vs Mr. G.V. Gordon 2000 VAD Delhi 97, 86 (2000) DLT 357, 2000 (56) DRJ 370 |e eStreetha v. 7: Venkata Subbaiah AUR. 1983 AP 356 | “ram vs.Smt. Mishri Bai. ATR 1979 MP 144 | L- INNOVATIVE ju ———__ = ‘ATIONAL Moot COURT COMPETITION, 2022- 17. Freedom to reside or settle in an rt of} ' India under Artict profession under Aisle Gye nt Ser Ail 19,1.) and Freedom to practi ice any € and live wi ; ‘© With another Spouse in his/her matrimonial home. Violates the freed, of Tirath Kaur v. Kripal Singh? . Additionally, it also ' 8 m Of practising any profession in many cases. In the case "the wife was staying away from her husband in order to job. However, due to Certain conflicts, Practice her filed a petition for Testitution of conju; 31. Additionally, in the case of Joseph Shine v, Union of India®®, » the apex court observed that the right to privacy depends on the exercise of autonomy by indi viduals. If an individual is lisabled from exercising his/her the right to privacy then the court Must take steps to ensure that the person’s right is realised in its fullest Sense. The Court further indivi i‘ ‘0 privacy cannot be infringed by regarding familial structures as private space. 32. a petition was filed in the Supreme Court challenging the constitutional validity of Section 9 of | the HMA and Section 22 of the SMA. The Petitioner contended that granting a decree for Testitution of conjugal right is a ‘coercive act’ on the Part of the state compelling a spouse to live with another spouse opposed to his/her will, Further, the act is violative of one’s sexual autonomy, the right to privacy, and right to live a dignified life as guaranteed under Article 21 of the Constitution of India. The petitioner further contended that even though these sections provide a right to both husband and wife to approach the court, however, these sections are discriminatory against women and Women are treated as ‘chattel’ by these laws. ¥ Tirath Kaur jab 28 ”. Kripal Singh, ATR 1964 Punj “es Patarwamyo, Unies of India, WRIT PRTITION (CIVIL) NO. 494 OF 2012= INNOVATIVE 1" NATIONAL MOOT COURT COMPETITION, 2022- 34, However, in the case of Shanti Devi v. Ramesh Chandra Roukar and Ors””., the Allahabad High Court gave a different judgement where it was held that mere denial of the wife to resign from her job does not amount to withdrawal from the society. Thus, it cannot be a sufficient ground for granting a decree under the restitution of conjugal rights. 35. Further, in the case of Smt, Vibha Shrivastava v. Dinesh Kumar Shrivastava’*, the Madhya Pradesh High Court held that a wife's refusal to leave her job does not amount to withdrawal from her husband’s society, and, thus it is not a sufficient ground for the husband to seek relief for the restitution of conjugal rights. Relying on the aforesaid cases and arguments, it is submitted before this Hon ‘ble Court that the order of restitution of conjugal ris assed in favour of Mr. Alex is not valid and hence liable to be set aside 7 Roukar and Ors. ATR 1969 Pat 2ar ae COMPETITION, 2022. living atthe time of second mariage but in the Present case Ms. Siti had an ex. decree in her favour which comes under t he exception of section 494 of IPC. So her marriage with Mr. Alex was not subsisting atthe time of Second marriage hence she cannot be prosecuted for bigamy, [3.1] SECTION 494 OF THE INDIAN PENAL CODE, 1860 37. The Indian Penal Code, 1860 explains bigamy under Section 494, The said provision states that any person who already has a wife or husband living, 38. There are certain exceptions to the aforementioned Provision wherein the person who marries ‘another individual shall not be liable for bigamy. The exceptions are as follows * The said provision does not extend to any individual whose ‘marriage with their partner from the prior marriage has been declared void by a court of competent jurisdiction, * The said provision does not extend to any individual who contracts a marriage during the "etime of their former partner wherein such partner atthe time of such individual's second ‘marriage was not heard of for a period of seven years or wherein there is no information of them being alive. By virtue of presumption provided under Section 108 of the Indian Evidence Act, 1872, it may be concluded that a person who has been missing for more than Seven years is presumed to be dead and that when the individual contacts a second marriage, it shall be understood that no husband or wife is living atthe time of the second marriage and thus, the offence of bigamy is not constituted. The condition that is inclusive of this exception is that the individual Contracting the second marriage must, before the second marriage takes place, inform the person they are about to marry about the facts to the best of their knowledge regarding their previous partner. 38, Section 494, IPC, inter alia, requires the following ingredients to be satisfied namely, * The accused must have contracted first marriage;INNOVATIVE 1+ NATIONAL Moor courr COMPETITION, 2022. + The first marriage must be Subsisting; and * The spouse must be living 29 {a) Section 495 of the In in Penal Code, 1860 Section 495 of the Indian Pena n 7 of the Hindu Marriage Act, J In reference to this in Kanwal Ram v, Himachal P, radesh Administration’! their Lordships of the wn in Bhaurao’s case (Supra) held that in a ‘ot only to be proved as a fact, but it must also be erformed, Supreme Court teiterating the Principles laid doy prosecution for bigamy, the second matiage had Proved thatthe necessary ceremonies had been p (3.2) THE FIRST MARRIAGE WAS NOT SUBSISTING 2 One of the essentials under section 494 of IPC is thatthe frst marriage must be subsisting to punish a person for bigamy. There must be atthe time of the second mariage a Previous valid and subsisting marriage.” If the first marriage is not a valid marriage no offence is commie by contracting a second marriage”. Divorce dissolves a valid marriage, and the parties obtaining such dissolution can remary™* = In the case of Santosh Kumari vs. Surjit Singh’, where without granting divorce the court passed orders. ‘lioving the physically weak wife from the burden of the husbands sex demands and a the request of the wife permitted him to take another wife that was held to be wrong. — 2 i fate of Punjab, AIR 2010SC 922 Piet v, ‘Sate of Maharashtra, 1965 ATR 1564 +, Kanwal Ram And Ors vs The Himachal Pradesh Adm, 1966 AIR 614 4; Smt, Padi And Ors. vs Union Of India, ATR 1963 HP 16 cat se 38. Chandra Manikyamma, vs B. Sudarsana Rao Alias Saleem 1988 Ci * Santosh Kumari vs. Suit Singh. ATR 1990 HP 77INNOVATIVE 1" NATIONAL MOOT: ‘COURT COMPETITION, 2022- (a) Ex-parte divorce dissolved the marriage in a case where the accused hus ; (3. band entered into second marriage after obtaining ¢x-parte divorce inst his first wife. The court sai a es " that he could not possibly be convicted under the section, even if - -quently set aside. Criminal ir roceed being only an exercise in ality proceeding against the husband was quashed, 4, The Supreme Court in a inabi ! case held that in a bigamy case, the second marriage as a fact, that is to say, the essential ceremonies constituting i \onies constituting it, must be proved. Admission of marriage by the accused is not idence of it i e it for the purposes of proving marriage in an adultery or bigamy case.”” Thus where the second hindu marriage i ; lu marriage is not proved by showing saptapadi and homam , the mere production of a marriage certificate would not be sufficient to prove that the second marriage was performed validly by performing all the essential ceremonies of a valid marriage. The mere fact of subsequent registration of the second marriage does not prove the validity of second marriage™* of living together as husband and wife or of some s, Proof must be cogent evidence. The mere fact roved.2® No specific letters on the point would not do. Religious ceremony of saptapadi also not p 4 in the community. Second mariage was not proved.” allegation that saptapadi was not requires ed by observing essential fed to have been validly perform the conviction ws 494 IPC could not be maintained.“ Ilaged second marriage it is also If the second marriage was not prov ceremonies and customs in the community, ot only the essentials of al a vali first marriage did occur between the parties. tothe conclusion thatthe second mariage was invalid as one of sustomary marriage was not performed, it was held that having so TPC.” Prosecution is duty bound to prove n obligatory on its part to show that In a case of bigamy the court cam the two essential ceremonies of the ct .d to convict the accused under section 494 of concluded the court could not procee arguments, itis submitted before this Hon ‘ble Court that ot be prosecuted for bigamy. resaid cases and. 494 of IPC so she canné Relying on the afor Siri has not committed any offence under section. _ 4 Gopal Divediv. Prabha Dvd, ATM 2002 SC 389 4 et Ron And ‘ors vs Te Himachal Pradesh Adm 1966 AIR 614 : Ram Rati, 1975, CFL] 836 (Cal a aewany HLM. v. State of Karnataka, 1990 CrLJ 1001 (Kant) Sant Deb Benna v.Kanchan Prone Devi, AIR 1991 SC a6 : sreari Obulamma vs L. Venkata ‘Reddy & Ors. 1979 th State of Trinura. 2012 (x1 2179 (Gand (rishna kant Na‘= INNOVATIVE I NATIONAL MOOT COURT COMPETITION, 2022- Therefore, in the light of arguments advanced, authorities cited and facts mentioned, the Hon'ble Court may be pleased to adjudicate by isuing an appropriate direction or order, to adjudge and declare that - * The divorce decree passed in the favour of Siri is vali * The order of restitution of conjugal rights passed in favour of Mr. Alex is not valid and hence liable to be set aside; ‘The appellant Ms, Siri had a divorce from previous marriage hence cannot be prosecuted for bigamy. AND/ OR ‘And any other relief that the Hon’ble Court may be pleased to grant inthe interests of justice, equity and good conscience. All of which is humbly submitted. FILED ON: __/__/2022 -SD/- COUNSELS FOR THE APPELLANT