Shabana VS Mukesh (Defendant)

1st National Moot Court Competition, 2019 (Career Point University)
CAREER POINT UNIVERSITY

{TEAM CODE—NMT-07}
1ST NATIONAL MOOT COURT COMPETITION 2019
MEMORANDUM ON BEHALF OF THE DEFENDANT
IN THE
HON’BLE SESSIONS COURT OF HAMIRPUR
IN THE MATTER OF:
SHABANA………………………………………………………………………(PLAINTIFF)
VERSUS
MUKESH………………………………………………………………………..(DEFENDANT)
MEMORIAL ON BEHALF OF DEFENDANT Page 1

TABLE OF CONTENTS
SR.NO CONTENTS PG.NO
1. LIST OF ABBERIVATIONS 3
2. INDEX OF AUTHORITIES 4
3. 5-6
TABLE OF CASES
4. 7
STATEMENT OF JURISDICTION
5. 8-9
STATEMENT OF FACTS
6. 10
STATEMENT OF ISSUES
7. 11-12
SUMMARY OF ARGUMENTS
8. 13-32
ARGUMENTS ADVANCED
9. 33
PRAYER

LIST OF ABBREVATIONS
AIR……………………………………………………..ALL INDIA REPORTER
&……………………………………………………………….AND
Anr……………………………………………………………ANOTHER
Co……………………………………………………………..COMPANY
Ltd…………………………………………………………….LIMITED
Or……………………………………………………………...OTHERS
SC………………………………………………………….SUPREME COURT
SCC…………………………………………………SUPREME COURT CASES
Hon’ble…………………………………………………………HONOURABLE
CPC……………………………………………CODE OF CIVIL PROCEDURE
Vs………………………………………………………………………VERSUS
No………………………………………………………………….NUMBER
HC………………………………………………………………..HIGH COURT
R/W……………………………………………………………….READ WITH
U/S……………………………………………………………..UNDER SECTION
SCR…………………………………………….SUPREME COURT REPORTS

INDEX OF AUTHORITIES
BOOKS AND DIGEST
STATUTORY COMPILATIONS
1. THE CODE OF CIVIL PROCEDURE, 1908
2. INDIAN EVIDENCE ACT, 1872
3. THE HINDU MARRIGE ACT, 1955
4. SPECIAL MARRIAGE ACT, 1954
WEBPAGES
1. INDIAN KANOON
2. SCC ONLINE, HTTP:/WWW.SCCONLINE.CO.IN
3. LIVE LAW
4. CASE MINE
5. MANUPATRA ONLINE RESOURCES
HTTP:/WWW.MANUPATRA.COM

TABLE OF CASES
A
 Andrahennedige Dinohamy And Another v. Wijetunge Liyanapatabendige

Balahamy And Others
B
 Badri Prasad v. Dy. Director of consolidation (AIR 1978 SC 1557)
G
 Guru charan Behara and Ors. V. Adikanda bahara and ors. (AIR 1927 Ori 38)
 Gokalchand v. Pravinkumari (AIR 1952 SC 231)
 Gurdip Singh v. Kartar Singh (AIR 1985 Punjab 58)
K
 khageshwar Naik v. Damuni Bewa
 kanchan Devi v. Promod Kumar mittan and another (1996) 8 SCC 90.
 lala ji Rama and sons v. Firm Hansraj Nathuram (AIR 1974 SC 974)
M
 Mohabbat Ali Khan v. Mohammad Ibrahim Khan
 M/S Alcon Electronics Pvt. Ltd vs Celem S.A. Of Fos 34320 Roujan (2017) 2 SCC 253.
 Mathura Prasad v. Dossibai N.B. jeejeybhoy (1970) 1 SCC 613.
 Manga Ramdas v. M.venkatanam (AIR 1973 AP 256)
N
 Naveen kohli v. Neelu kohli (AIR 2004 A 112)

 Nagabhushanammal v. C. Chandikeswaralingam (2016) 4 SCC 434.
O
 Oomer Hajee Ayoob sait v. Thirunavukkarsu pandaram ( AIR 1936 Mad. 552)
P
 PK Vijayan v kamalakshmi Amma ( AIR 1994 SC 2145)
R
 Rajdei v. Lautan (1980 All. 169)
 Ramchandra v. Shantibai Ramchandra (AIR 1989 SC 2240)
 R.K jain v. MH Singh (AIR 1981 Del. 213)
 Ramesh chand v. Board of revenue ( AIR 1973 All. 120)
S
 Sridhar dey v. KalpanaDey (AIR 1987 Cal. 213)
 Smt. Satya v. Teja singh (1975 AIR 105)
 Sangamitra ghose v. Kajal Kumar ghose (2007) 2 SCC
 Saroj Rani v. Sudarshan Kumar chadha (1984 AIR 1562)
 Shalig Ram v. Firm Daukatram Kundammal (AIR 1967 SC 739)
 S. Jayam sunder Rajaratnam v. K. Muthuswami kangani (AIR 1958 mad. 203)
V
 Veerappa v. Michael (AIR 1963 SC 983)
 V.bhagat v. D.Bhagat ( 1994 AIR 710)
Y
 Y. Narasimha Rao v. Y. Venkata Lakshmi (1991) 3 SCC 451.
STATEMENT OF JURISDICTION

It is submitted that the defendant has approached the Hon’ble District court of
Hamirpur has inherent jurisdiction to try , entertain and dispute of the present case
by virtue of section 31(iiia) of Special Marriage Act , 1954.
31) Court to which petition should be made- Every petition is presented under this
act shall be presented to the district court within the local limits of whose original
civil jurisdiction –
i. The marriage was solemnized; or
ii. The respondent, at the time of presentation of the petition resides; or
iii. The parties to the marriage last resided together; or
(iiia) In case the wife is the petitioner, where she is residing on the date of
presentation of petition; or
iv. The petitioner is residing at the time of presentation of the petition, in a case
where the respondent is, at that time residing outside the territories to which
this act extends, or has not been heard of as being alive for a period of seven
years by those who would naturally of heard of him if he were alive.

STATEMENT OF FACTS
1. Shabana (plaintiff) and Mukesh (defendant) (a Marine Engineer of Indian Navy),

both resident of Hamirpur, belonging to Muslim and Hindu Community. They were
good friends since high school. They got married in 2011 according to Hindu
Ceremonies. They registered as per the provisions of The Special Marriage Act, 1954
and in effect a marriage certificate was issued by authorities. Out of this wedlock two
childrens were born in the year 2012 and 2016 respectively.
2. Plaintiff had blind faith on Peer wale Baba of sujanpur since her childhood. After
marriage she continued to visit at there. Defendant didn’t like that because he had
listen many humours regarding that baba.
3. In January 2013, after taking voluntary retirement from Indian Navy, Mukesh went to
France for higher studies. In April 2015, defendant called his wife along with his first
child to France. In January2016, their second child born in France. In February 2016,
they came back to Hamirpur.
4. In March he went back to France to clear some institutional formalities. But there he
got opportunity to work with leading university and stayed in France. In September
he severed all contacts with plaintiff. He had developed an affair with lady named
Emile. In January 2017 plaintiff wrote a letter to defendant expressing her willingness
to join her in France. In reply Defendant wrote to plaintiff that she need not to come
to France, as he was interested in getting marriage dissolved. In December 2017 he
got citizenship of France.
5. In April 2018, he filed petition for divorce in trail court of France on the ground that
his marriage has irretrievably breakdown. The plaintiff could not contest these
proceedings, she having no mean to go to France. Meanwhile in July 30, 2018, the
trail court of France granted a divorce decree in the favour of defendant. Furthered,
the court ordered that the husband would pay to wife and children an amount of
35000 per month for their maintenance.
6. After the decree, Mukesh (defendant) and Emile entered in a civil solidarity pact in
August 03 2018. Defendant didn’t disclose the fact of ex party decree of divorce and
his entering into a relationship with Emile to his parents and shabana (plaintiff).
Defendant continued to pay the maintenance to plaintiff for 3 months. After that he

failed to pay the maintenance to his wife and children. Meanwhile plaintiff came to
know about the ex parte decree of divorce.
7. Then she approached the legal aid cell, Hamirpur. Cell helped plantiff by letter to
trial court France and provided legal aid. Then warrant of arrest were issued against
defendant. She further said that the ex parte decree of divorce obtained by the
husband was not binding on her and was illegal and that she continue to be the wife
of defendant, She further asserted that as per the provisions of The Special Marriage
Act, 1954, the grounds of divorce (on the basis of adultery, cruelty and desertion)
under Section 27 of the Act are available to wife under the given set of
circumstances. In fact, she is the actual victim, who was being further victimized by
the order of the France, Trial court.
8. In December 2018 the plaintiff filled a petition under Section 22 of The Special
Marriage act, 1954, Restitution of Conjugal Rights in district court, Hamirpur,
defendant appeared in the court and filled an application for dismissal of petition. He
did not file any written statement and he referred to the decree of divorce granted by
trial court of the France and said that despite of notice, plaintiff did not consent the
same and by not raising any objection she is deemed to have accepted the jurisdiction
of foreign court in trying the petition and thus making the decree nisi- absolute by the
foreign court and is thus stopped from filling the present petition (under section 11
read with Section 151 of code of civil Procedure, 1908).

STATEMENT OF ISSUES
1. WHETHER THE MARRIAGE IS VALID BETWEEN SHABANA AND

MUKESH UNDER PROVISIONS OF SPECIAL MARRIAGE ACT, 1954?
2. WHETHER THE NON CONTEST BY WIFE OF DIVORCE PETITION

FILED BY HUSBAND IN FOREIGN COURT IMPLIED THAT SHE HAD
CONCEDED TO THE JURISDICTION OF FOREIGN COURT?
3. WHETHER THE PRINCIPLE OF RES JUDICATA UNDER SECTION 11

OF CODE OF CIVIL PROCEDURE IS APPLICABLE TO THE
PROCEEDINGS INITIATED IN THE DISTRICT COURT HAMIRPUR?
4. WHETHER THE RELATIONSHIP OF MUKESH AND EMILE LEGAL?
5. WHETHER SHABANA IS ENTITLED TO RESTITUTION OF

CONJUGAL RIGHTS UNDER THE SPECIAL MARRIAGE ACT, 1954.

SUMMARY OF ARGUMENTS
1. Whether The Marriage Is Valid Under Special Marriage Act, 1954?

On the behalf of Mukesh (Defendant) the marriage between Shabana and Mukesh is valid
marriage. The essential condition of marriage under Special marriage act is fulfilled. The marriage
ceremony is performed according to Hindu rituals which is acceptable as one of the party is hindu.
Also, the marriage is registered and certificate is issued for the same. Marriage is valid.
2. Whether Non Contest By Wife Implied That She Had Conceded To

Jurisdiction Of The Foreign Court?
On behalf of Mukesh (Defendant) Sunita accepted the jurisdiction of the foreign court. After
passing of the decree of divorce, court ordered for the maintenance and she accepted the same. If
she did not accept the jurisdiction then why she accepted the maintenance. So, she conceded to the
jurisdiction of the foreign court.
3. Whether The Principle Of Res Judicata Under Section 11 Of Code Of Civil

Procedure, 1908 Is Applicable To The Proceedings Being Initiated In
District Court Of Hamirpur?
On the behalf of Mukesh (Defendant) res judicata is applicable in these proceedings initiated at
district court of Hamirpur. The main aim of res judicata is to avoid re-determination of the same
issue which have been already adjudicated upon. As the France court already gave judgement on
the decree and the judgement is conclusive in nature, so it is barred on both the parties. As she did
not raise the matter in principal suit, it become constructive Res judicata.
4. Whether Relationship of Mukesh And Emile is Legal?

On behalf of Mukesh (Defendant) relationship of Mukesh and Emile is legal as Mukesh and Emile
entered in a civil solidarity pact. Mukesh and Shabana got decree of divorce and so his relation
with Emile was not unjust/illegal.

5. Whether Emile is entitled to get Restitution of Conjugal Rights?

Emile is not entitled to get Restitution of Conjugal Rights as Husband has not withdrawn from the
society without any reasonable cause and Shabana has not contested the proceedings in Trial Court
of France so she can not claim later on.

ARGUMENTS ADVANCED
1. WHETHER THE MARRIAGE OF SHABANA AND MUKESH IS

VALID AS PER THE PROVISIONS OF THE SPECIAL MARRIGE ACT,
1954?
➢According to Section 4 of the Special marriage act1, 1954 there are five conditions for the
valid marriage i.e.
 Solemnization of Special marriage. A marriage may be solemnized between any

two persons under this act, if at the time of marriage the following conditions are
fulfilled, namely:
1.neither party has a spouse living at the time of the marriage;
(ii)At the time of the marriage, neither party
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering from mental disorder of such a
kind or to such an extent as to be unfit for marriage and the procreation of children; or
(c) Has been subject to recurrent attacks of insanity
(iii) The bridegroom has completed the age of[twenty-one years] and the bride, the age
of[eighteen years] at the time of the marriage;
(iv) The parties are not within the degrees of prohibited relationship unless the custom or
usage governing each of them permits of a marriage between the two;
(v) The parties are not sapindas of each other, unless the custom or usage governing each of
them permits of a marriage between the two;
1
The special marriage act, 1954

As, none of the parties had claimed that any of these conditions has not been fulfilled. So,
the conditions for a valid marriage are fulfilled.
 SECTION 12 (Special Marriage Act, 1954)

1. The marriage may be solemnized at the office of marriage officer, or at
such other place within a reasonable distance therefrom as the parties
may desire, and upon such conditions and the payment of such
additional fees as may be prescribed.
2. The marriage may be solemnized in any form which the parties may
choose to adopt.
The facts of the case show that marriage was solemnized according to
Hindu rituals which the parties themselves adopted.
 SECTION 7 OF Hindu Marriage Act, 1955

CEREMONIES FOR A HINDU MARRIAGE
1. A Hindu Marriage may be solemnized in accordance with the

customary rites and ceremonies of either party thereto.
2. Where such rites and ceremonies include the Saptpadi, the marriage
becomes complete and binding when the seventh step is taken.
The Marriage Ceremony was performed according to Hindu rituals
which is valid under Section 7 of Hindu Marriage Act, 1955
 SECTION 13 (Special Marriage Act,1954)
1. When marriage has been solemnized, the marriage officer shall enter a
certificate thereof in the form specified in the fourth schedule in a book
to be kept by him for that purpose and to be called the Marriage

Certificate Book and such certificate shall be signed by the parties to

the marriage and three witnesses.
2. 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 marriage under this act has been solemnized
and that all formalities respecting the signatures of witnesses have
been complied with.
As in the present case marriage certificate is issued under Section 13 of
Special Marriage act so the marriage is valid
 In, Sulochana Kandi v. Diptirekha Kandi And Anr.2

In this case it was held that marriage certificate issued under SMA will
be conclusive evidence of the fact that a marriage under the act b\w the
petitioner and the respondent has been solemnized as stated in sub-
section (2) of Section 13 of Special Marriage Act ,1954
 In, Prafulla Bala Biswas v. Smt.Ila Das and Anr.3

A certificate of marriage was issued and the plaintiff prayed for
declaring that the marriage is void ab-initio and that marriage
certificate has no effect.
 Marriage Certificate was issued under Section 13 (2) of
SMA,1954. In view of the existence of marriage certificate, the
solemnization of marriage is not open to be challenged andthere
is no question of leading any rebuttal evidence in this regard.
 In, Prabir Chandra Chatterjee v. Kaveri Guha Chatterjee4
In this case matrimonial proceedings were initiated by the wife by a petition for divorce
with the husband on various grounds like cruelty, adultery etc. The marriage was
solemnized according to Hindu rites and was registered according to Special Marriage
Act and the marriage was valid. As in the present case of Shabana v. Mukesh, the
marriage was performed according to hindu ritual and certificate was issued so the
marriage was valid.
2
98 (2004) CLT 182
3
(1996) 2 CA LLT 315 HC
4
AIR 1987 Cal 191, 91 CWN 870

 In this connection , it is further notable that, Insofar as the criminal matters are
concerned, it is essential that all the ceremonies must be proved beyond may
reasonable shadow of doubt while it is not so in civil cases
 In, Rajdei v. Lautan5
 In this case, Allahabad high court also noted distinction between two different
standard of proof in civil and criminal matter. It was further held that it was not law
that saptpadi must be proved in every case.
From the above conspectus of law few propositions arise,
I. Firstly, that there are distinct and different standard of proof for the civil
and criminal matters and the standard of proof beyond any reasonable
doubt of shadow, would not apply in civil matters and in civil matters the
preponderance of probability in favour of marriage would be sufficient to
hold that all ceremonies were performed.
II. Secondly, in such a matter of is to be presumed that all essential

ceremonies have been performed unless and until the opposite party claim
specifically that particular ceremony was not performed?
So, from the above points we can conclude that the marriage between Shabana
and Mukesh is valid marriage.
2. Whether Non contest by wife of divorce petition filed by husband in foreign

court implied that she had conceded to jurisdiction of the foreign court?
In order to understand the questions, that were involved in this issue, it is

first essential to understand some legal concepts that thrust upon the
questions that were involved in the case. The hindu marriage act 1955,
5
1980 Allahabad 169

governs marriage and divorce among Hindus. The act providing essentials of
valid marriage also provides various grounds of divorce. These includes
cruelty, desertion, conversion etc. However this act do not recognize
irretrievable broke down of marriage as a ground of divorce but supreme
court by exercising our power under article 142 of constitution. It is worth
noted that there is no doubt that the irretrievable break down of marriage is
not a ground under hindu marriage act,1955 but it does not mean that
divorce not take place as the ground of irretrievable breakdown of marriage.
 The second legal concept that thrust on the question involved in the case is
recognition of the foreign judgements in Indian courts. Section 13 of C.P.C
provides that foreign judgement shall be binding on the parties and
conclusive until there exists circumstances as provided in exception to
section 13 of code of civil procedure.
13. When foreign judgment not conclusive.6
A foreign judgment shall be conclusive as to any matter thereby directly

adjudicated upon between the same parties or between parties under whom
they or any of them claim litigating under the same title except-
(a) where it has not been pronounced by a Court of competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded on an
incorrect view of international law or a refusal to recognise the law of
1
[India] in cases in which such law is applicable;
(d) where the proceedings in which the judgment was obtained are opposed to
natural justice;
6
PAGE NO. OF CODE OF CIVIL PROCEDURE

(e) where it has been obtained by fraud; where it sustains a claim founded on
a breach of any law in force in 1[India].
 In, Smt. Satya v. Teja Singh13,
The court considered the question:- Are Indian courts bound to give recognition to
divorce decree granted by foreign court
The court observed “The judgement of the foreign court was rendered civil
proceeding and therefore its validity in India must be rendered on the terms
of section13 of code of civil procedure. It is beside a point that the validity of
judgement is questioned in a criminal court and not in civil court. If the judgement
falls under any of the clause of section 13 it will cease to be conclusive as to any
matter adjudicated upon”.
 The Supreme court of India in, M/S Alcon Electronics Pvt. Ltd vs Celem
S.A. Of Fos 34320 Roujan7,
“ The principle of comity of nation demanded is to respect the order of English

court, even in regard to an interlocutory order, Indian courts have to give due
weightage to such order unless it falls under any of the exceptions under section 13
of code of civil procedure”.
Judgement on merits
According to section 13(b)8 of code of civil procedure says that If the judgement
passes is not on the merits than this judgement is not conclusive in Nature.
 In, Y. Narasimha Rao v. Y. Venkata Lakshmi9

7
(2017) 2 SCC 253.
8
PAGE NUMBER OF CODE OF CIVIL PROCEDURE
9
(1991)3 SCC 451.

The court ruled that, the decision must be given on merits of case i.e.
i. Ground of divorce in the decision of foreign court should be ground

available under hindu marriage act, 1955.
ii. The decision should be result of contest between the parties.
Ground of divorce:-
There is no doubt that the irretrievable breakdown of marriage is not the ground
available under hindu marriage act,1955 but there are many cases in which
supreme court by using our power under Article 142 of constitution of India.
✓ In, Kanchan Devi v. Promod Kumar mittan and another 10
Where the marriage of the parties was irretrievable broke down, this court
exercised the power under article 142 of the constitution of the India and passed
the following order
“In view of the peculiar facts and circumstances of the case and being satisfied that
the marriage between appellant and respondent has irretrievable broken down and
that there is no possibility of reconciliation, we in exercise of our powers under
article 142 of constitution of India here by direct the marriage between the
appellant and respondent shall stand dissolved by the decree of divorce..”
 In, Sangamitra ghose v. Kajal Kumar ghose11
“We are fully convinced that the marriage between the parties has irretrievable
broken down because of incompatibilities of temperament. In fact there has been
total disappearance of emotional substratum in marriage. The matrimonial bind
between the parties beyond repair and the marriage has been wrecked beyond the
10
(1996) 8 SCC 90.
(2007)2 SCC
11

hope of salvage and therefore public interest and interest of all concerned lies in
the of the recognition of the fact and to declare divorce”.
 In, Saroj Rani v. Sudarshan Kumar chadha19
The supreme court has first laid down in upholding a decree of divorce following a
consent decree of restitution of conjugal rights. It is evident that for whatever be
the reason this marriage has broken down and the parties can no longer live
together as husband and wife, if such is the situation it is better to close the chapter.
 In, V.bhagat v. D.Bhagat20
It has been held that irretrievable broke don of marriage is not a ground by itself for
a decree of divorce. While scrutinizing the evidence on the record it may be
relevant to determine whether the ground alleged is made out.
 Also, In Naveen kohli v. Neelu kohli21
amending the hindu marriage act.
So, from the above judgements the one thing which is clear that there is no doubt
that irretrievable broke down of marriage is not ground of divorce in India. But the
supreme court by using power under article 142 of constitution of India, can pass
decree of divorce on the ground of irretrievable breakdown of marriage. So, we can
say Irretrievable break down of marriage is not a ground directly but indirectly.
The basic requirement for this ground is that marriage must be broken. As it will be
five years of their marriage but they cohabitate in one house only for the period of
one or two years. They have no any emotional attachment and even Mukesh have no
any feelings for cohabitation. What is the purpose of that marriage in which no one

is happy. What is the purpose of the marriage in which they did not understand each
other emotionally, they did not cohabitate. So the bond between mukesh and
shabana is beyond repair.
Decision should be result of contest of parties:
The another essential is decision should he result of contest of the parties. The
contest can be directly or indirectly.
 In, lala ji Rama and sons v. Firm Hansraj Nathuram12
The mere fact of the decree being ex-parte will not justify a finding that it was not
on merits. An ex- parte judgement by foreign court is as valid and executable as a
bi- parte judgement.
As, Sunita wrote a letter to the New York court when mahesh failed to pay the
maintenance. This will be indirect contest of the sunita in the proceedings of New
York.
 The supreme court in, Shalig Ram v. Firm Daukatram Kundammal13
In this case it was held that, filing of an application for leave to defend a summary
suit in a foreign court amounted to voluntary submission to the jurisdiction of the
foreign court amounted to voluntary submission to the jurisdiction of the foreign
court.
12
AIR 1974 SC 974.
13
AIR 1967 SC 739.

 In, Oomer Hajee Ayoob sait v. Thirunavukkarsu pandaram14
The madras high court while dealing with the issue of submission to jurisdiction
held that mere conduct or circumstances indicative of intention to submit the
jurisdiction is enough to derive a conclusion of submission jurisdiction.
 In, S. Jayam sunder Rajaratnam v. K. Muthuswami kangani15
It was held that through the judgment and decree of foreign court might have been
passed ex- parte, if it was passed on the consideration of the evidence adduced in
the case, the decision must be deem on the merits of case.
As, sunita wrote a letter to New York court for providing him legal aid. Its means
that she give consent to the jurisdiction of this court and the judgment of the New
York court is on the merits.
Natural justice
As according to section 13(d) says, if principle of natural justice is flouted than the
judgment is not conclusive. The principle of natural justice is based on maxim
“Audi Alterm Partem" which means hear the another party.
As sunita knows that Mahesh file a divorce decree in New York court. Mahesh file
a petition in April, 2011 an decree passed on July 2011. In between sunita have two
months. If we consider the fact that she don’t have means to go but when she did
not receive maintenance she wrote a letter to New York court for providing her
legal aid. If she is so much attentive than why she did not wrote letter when she got
to know about the divorce. The New York court provide him legal aid when she
14
AIR 1936 Mad. 552.
15
AIR 1958 Mad. 203.

asked, if she asked before the decree than the New York court can provide him
legal aid on that time too. But she did not want it. She have the time of two months,
she can wrote letter for providing her legal aid but she didn’t use, it does not mean
that it violate the principle of natural justice. Court gives her time and after when
she did not response the court passed the ex- parte decree.
She can also file a case in India against the proceedings initiated in the France
court. But she did not did this at all. Shabana knows about the divorce, she gives
our consent to the jurisdiction, so the judgement passed by the France court is
conclusive in nature and binding to both the parties.
3. APPLICATION OF RES JUDICATA:-
Res judicata means final decision pronounced by a judicial tribunal having

competent jurisdiction over the cause or matter in litigation and over the parties
there to.
For the scrutiny of the aforesaid issue, reference to section 11 as contained in the
code of civil procedure is necessary.
11. Res judicata16.
No Court shall try any suit or issue in which the matter directly and
substantially in issue has been directly and substantially in issue in a former
suit between the same parties, or between parties under whom they or any of
them claim, litigating under the same title, in a Court competent to try such
subsequent suit or the suit in which such issue has been subsequently raised,
and has been heard and finally decided by such Court.
Explanation I- The expression “former suit” shall denote a suit which has
been decided prior to the suit in question whether or not it was instituted
prior thereto.
16
PAGE NUMBER OF CODE OF CIVIL PROCEDURE

Explanation II.- For the purposes of this section, the competence of a Court
shall be determined irrespective of any provisions as to a right of appeal from
the decision of such Court.
Explanation III.- The matter above referred to must in the former suit have
been alleged by one party and either denied or admitted, expressly or
impliedly, by the other.
Explanation IV.- Any matter which might and ought to have been made
ground of defence or attack in such former suit shall be deemed to have been a
matter directly and substantially in issue in such suit.
Explanation V.- Any relief claimed in the plaint, which is not expressly
granted by the decree, shall, for the purposes of this section, be deemed to
have been refused.
Explanation VI- Where persons litigate bona fide in respect of public right or
of a private right claimed in common for themselves and others, all persons
interested in such right shall, for the purposes of this section, be deemed to
claim under the persons so litigating.
Explanation VII.- The provisions of this section shall apply to a proceeding for
the execution of a decree and reference in this section to any suit, issue or
former suit shall be construed as references, respectively, to proceedings for
the execution of the decree, question arising in such proceeding and a former
proceeding for the execution of that decree.
Explanation VIII.-An issue heard and finally decided by a Court of limited

jurisdiction, competent to decide such issue, shall operate as res judicata in as
subsequent suit, notwithstanding that such Court of limited jurisdiction was
not competent to try such subsequent suit or the suit in which such issue has
been subsequently raised.
The principle enunciated in section 11 of code of civil procedure provides that no

court should try any suit or issue in which matter directly and substantially decide in

former suit. As, the words stress more on matter in issue, substantially and directly
decide.
In, Mathura Prasad v. Dossibai N.B. jeejeybhoy17
The expression matter in issue means the rights litigated between the parties i.e. the
fact on which the rights is claimed and the law applicable to the determination of
that issue.
In, Ramchandra v. Shantibai Ramchandra18
A matter directly and substantially in issue in a former suit will operates res
judicata in a subsequent suit. Substantially means essentially or materially. It is
something short of certainty but indeed more than mere suspicion.
In, Manga Ramdas v. M.venkatanam19
A matter can be said to be substantially in issue if it is of importance and value

for the decision of the main proceedings.
In, Gurdip Singh v. Kartar Singh 20
A matter not raised in principle suit may become constructive Res judicata in
execution.
From the above judgements it is clear that when any matter which is of importance
and value is known as directly and substantially in issue.
(1970) 1SCC 613.
17
18
AIR 1989, SC 2240
19
AIR 1973, AP 256.
20
AIR 1985 Punjab 58.

A matter directly and substantially in issue may be so either actually or

constructively.
According to Explanation 3, matter is directly in issue when it is alleged by the

one party and denied or admitted by the other expressly or impliedly.
According to Explanation 4, It is constructively in issue when it might or ought to

have been made a ground of attack or defense in the former suit. The word might
pre supposes the affected party had knowledge about the ground of attack or
defense at the time of previous suit and ought compels the party to take such
grounds.
As, in present case the matter is constructively in issue because when the Mahesh
files a divorce case against her than she can file a restitution of conjugal rights in
our defense but she did not. So the matter is constructively in issue.
In, R.K jain v. MH Singh 21
The word “might" refers to possibility where the plaintiff or defendant has an
opportunity of putting forward a particular ground of attack or defence, he is
expected to put forward the same.
In, Ramesh chand v. Board of revenue 22
AIR 1981 DEL 213

21
AIR 1973 ALL 120

22

The word ought on the other hand enjoined the party to take such place and is used
in mandatory sense expressing duty or obligation. It compels the party to raise a
ground of attack or defense in support of its case and to contact the case of
opposite party.
In, PK Vijayan v kamalakshmi Amma23
The rule of constructive res judicata is an artificial form of res judicata and it is fair
and just that the parties raise all the available relevant pleas in the suit or
proceedings when the actions is initiated and omission of such pleas does
constitute constructive res judicata to prevent raising them at a latter point of time,
therefore it must be deemed that they are waived.
In, Nagabhushanammal v. C. Chandikeswaralingam24
That it is necessary to establish that not only the subsequent suit or proceedings is
in fact founded upon the same cause of action, which was the foundation of the
earlier suit or proceedings but also that the plaintiff has an opportunity of obtaining
the same relief, which he or she is now seeking in the earlier suit or proceedings
itself.
As, from the above judgements we can said that the issue of restitution of conjugal
rights is constructive substantially issue in the former case. As on that time of
divorce sunita can take the plea of restitution of conjugal rights of she want to take
this, but she did not take the plea. As from the judgement of PK vijayan case that it
is essential to take all the pleas in the former suit if he or she didn’t do this than
they can’t file a fresh suit against the pleas they can take in former suit, and
23
AIR 1994 SC 2145
24
(2016) 4 SCC 434.

constructive res judicata would apply. As sunita can take the relief of restitution of
conjugal rights in former
case but she did not take this so, now she cant file a fresh suit. So the constructive
res judicata is applicable in this case.
4 WHEATHER THE RELATIONSHIP OF MUKESH AND EMILE IS

LEGAL ?
The relation of mukesh and emile is legal as the France court where the mukesh
lastly resided with shabana have the jurisdiction to try the divorce suit of Mukesh
the hon’ble court after hearing the parties and after adopting the due procedure
granted the decree of divorce in favour of Mukesh. After the divorce Mukesh came
in a Civil Solidarity Pact with Emile which prima facie establish on record show
that relationship of Mukesh and Emile is legal and is justified and maintainable in
the eyes of law .They came in civil solidarity pact according to which they can live
together in living relationship.
5 WHETHER SHABANA IS ENTITTLED TO GET RESTITUTION OF

CONJUGAL RIGHTS UNDER SPECIAL MARRIAGE ACT 1954?

No, Shabana is not entitled to get restitution of conjugal rights
First we have to discuss what is Restitution of conjugal right,
When either the husband or the wife has, without reasonable excuse, withdrawn
from the society of 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
relief should not be granted, may decree restitution of conjugal rights accordingly .
As she has not contested the case in France court therefore she has abundant her
right to take restitution of conjugal rights, her act and conduct also stopped her to
file this case as she has opt for restitution of conjugal right when she has not obtain
the maintenance.
REASONABLE EXCUSE –
Husband in the present case withdrew from the society with reasonable excuse as
her wife blind faith in Peer Wale Baba forced him to leave her.
Husband had listened some rumours that the Baba had an illicit relationships with
his disciples and plaintiff was also a disciple of Baba, this had caused some doubts
in the mind of Defendant .
Even plaintiff refused Defendant to join him in France on the advice of Baba which
prima facie show that plaintiff was not performing her marital obligations
successfully.
Why the relief should not be granted?

In the present case, relief of Restitution of Conjugal Rights should not be granted as
from MARCH 2016 – JANUARY 2017 plaintiff has not tried to contact her
husband(Defendant) and by not raising any objection at that time she can not claim
the relief later on.
Plaintiff also accepted the Maintenance amount given by Husband and has not even
tried to talk about maintenance from her husband . By accepting it plaintiff had
conceded to the jurisdiction of the foreign court so is estopped from filing the
petition under SECTION 11 READ WITH SECTION 151 OF CPC,1908
Section 11 of the code of Civil Procedure, 1908, embodies the rule of res
judicata or the rule of conclusiveness of the judgment, as to the points decided either
of facts, or of law, or of facts and law, in every subsequent suit between the same
parties. It enacts that once a matter is finally decided by a competent Court, no party
can be permitted to reopen it in a subsequent litigation.
Section 151 CPC is not a substantive provision which creates or confers any power
or jurisdiction on courts. It merely recognises the discretionary power inherent in
every court as a necessary corollary for rendering justice in accordance with law, to
do what is “right” and undo what is “wrong”, that is, to do all things necessary to
secure the ends of justice and prevent abuse of its process.
(b) As the provisions of the Code are not exhaustive, Section 151 recognises and
confirms that if the Code does not expressly or impliedly cover any particular
procedural aspect, the inherent power can be used to deal with such situation or
aspect, if the ends of justice warrant it. The breadth of such power is coextensive
with the need to exercise such power on the facts and circumstances.

(c) A court has no power to do that which is prohibited by law or the Code, by
purported exercise of its inherent powers. If the Code contains provisions dealing
with a particular topic or aspect, and such provisions either expressly or by
necessary implication exhaust the scope of the power of the court or the jurisdiction
that may be exercised in relation to that matter, the inherent power cannot be
invoked in order to cut across the powers conferred by the Code or in a manner
inconsistent with such provisions. In other words the court cannot make use of the
special provisions of Section 151 of the Code, where the remedy or procedure
providedinthecode.
(d) The inherent powers of the court being complementary to the powers specifically
conferred, a court is free to exercise them for the purposes mentioned in Section 151
of the Code when the matter is not covered by any specific provision in the Code
and the exercise of those powers would not in any way be in conflict with what has
been expressly provided in the Code or be against the intention of the legislature.
(e) While exercising the inherent power, the court will be doubly cautious, as there
is no legislative guidance to deal with the procedural situation and the exercise of
power depends upon the discretion and wisdom of the court, and in the facts and
circumstances .
(f) The power under Section 151 will have to be used with circumspection and care,
only where it is absolutely necessary, when there is no provision in the Code
governing the matter, when the bona fides of the applicant cannot be doubted, when
such exercise is to meet the ends of justice and to prevent abuse of process of court



PRAYER
Wherefore in the lights of the facts of the case, charges framed, arguments advanced, statutes
referred and authorities cited, the plaintiff most humbly pray and implore before the hon’ble court.
That it may be pleased to declare that:-
“The decision given by the France court is not binding on plaintiff as the principle of natural
justice is not followed nor the principle of res judicata is applicable here. So the decree of
“restitution of conjugal rights” should be passed”
The court may pass any other order that this hon’ble court deems in the interest of justice, faith
and good conscience fit in
AND FOR THIS ACT OF KINDNESS THE COMPLAINANT SHALL AS DUTY BOUND EVER
HUMBLY PRAY.
RESPECTFULLY SUBMITTED.
COUNSEL FOR THE DEFENDANT

Shabana VS Mukesh (Defendant)

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1st National Moot Court Competition, 2019 (Career Point University)

CAREER POINT UNIVERSITY

MEMORANDUM ON BEHALF OF THE DEFENDANT

IN THE MATTER OF:

MEMORIAL ON BEHALF OF DEFENDANT Page 1

SR.NO CONTENTS PG.NO

MEMORIAL ON BEHALF OF DEFENDANT Page 2

AIR……………………………………………………..ALL INDIA REPORTER

SCC…………………………………………………SUPREME COURT CASES

CPC……………………………………………CODE OF CIVIL PROCEDURE

SCR…………………………………………….SUPREME COURT REPORTS

MEMORIAL ON BEHALF OF DEFENDANT Page 3

BOOKS AND DIGEST

MEMORIAL ON BEHALF OF DEFENDANT Page 4

 Andrahennedige Dinohamy And Another v. Wijetunge Liyanapatabendige

MEMORIAL ON BEHALF OF DEFENDANT Page 5

 Nagabhushanammal v. C. Chandikeswaralingam (2016) 4 SCC 434.

MEMORIAL ON BEHALF OF DEFENDANT Page 6

MEMORIAL ON BEHALF OF DEFENDANT Page 7

1. Shabana (plaintiff) and Mukesh (defendant) (a Marine Engineer of Indian Navy),

MEMORIAL ON BEHALF OF DEFENDANT Page 8

MEMORIAL ON BEHALF OF DEFENDANT Page 9

1. WHETHER THE MARRIAGE IS VALID BETWEEN SHABANA AND

2. WHETHER THE NON CONTEST BY WIFE OF DIVORCE PETITION

3. WHETHER THE PRINCIPLE OF RES JUDICATA UNDER SECTION 11

4. WHETHER THE RELATIONSHIP OF MUKESH AND EMILE LEGAL?

5. WHETHER SHABANA IS ENTITLED TO RESTITUTION OF

MEMORIAL ON BEHALF OF DEFENDANT Page 10

1. Whether The Marriage Is Valid Under Special Marriage Act, 1954?

2. Whether Non Contest By Wife Implied That She Had Conceded To

3. Whether The Principle Of Res Judicata Under Section 11 Of Code Of Civil

4. Whether Relationship of Mukesh And Emile is Legal?

MEMORIAL ON BEHALF OF DEFENDANT Page 11

5. Whether Emile is entitled to get Restitution of Conjugal Rights?

MEMORIAL ON BEHALF OF DEFENDANT Page 12

1. WHETHER THE MARRIAGE OF SHABANA AND MUKESH IS

 Solemnization of Special marriage. A marriage may be solemnized between any

1.neither party has a spouse living at the time of the marriage;

(ii)At the time of the marriage, neither party

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(c) Has been subject to recurrent attacks of insanity

MEMORIAL ON BEHALF OF DEFENDANT Page 13

 SECTION 12 (Special Marriage Act, 1954)

 SECTION 7 OF Hindu Marriage Act, 1955

1. A Hindu Marriage may be solemnized in accordance with the

 SECTION 13 (Special Marriage Act,1954)

MEMORIAL ON BEHALF OF DEFENDANT Page 14

Certificate Book and such certificate shall be signed by the parties to

2. On a certificate being entered in the marriage Certificate book by the

 In, Sulochana Kandi v. Diptirekha Kandi And Anr.2

 In, Prafulla Bala Biswas v. Smt.Ila Das and Anr.3

MEMORIAL ON BEHALF OF DEFENDANT Page 15

 In, Rajdei v. Lautan5

From the above conspectus of law few propositions arise,

II. Secondly, in such a matter of is to be presumed that all essential

2. Whether Non contest by wife of divorce petition filed by husband in foreign

In order to understand the questions, that were involved in this issue, it is

MEMORIAL ON BEHALF OF DEFENDANT Page 16