UNIVERSITY INSTITUTE OF LEGAL STUDIES

CHANDIGARH UNIVERSITY

BEFORE

THE HON’BLE HIGH COURT OF VESHNAGAR

THE STATE OF INDICA

IN THE MATTER OF

NEHA.......................APPELLANT
Verses

RAMANT................RESPONDENT

MEMORIAL ON THE BEHALF OF THE RESPONDENT

 TABLE OF CONTENTS
CONTENTS .................................................................................. 2
LIST OF ABBREVIATIONS ………………………………………………………………… 3

INDEX OF AUTHORITIES …………………………………………………………………. 4

CASES CITED…………………………………………………………………………………… 5

STATEMENT OF JURISDICTION ………………………………………………………. 6

STATEMENT OF FACTS …………………………………………………………………… 7

STATEMENT OF ISSUES ………………………………………………………………..... 8

SUMMARY OF ARGUMENTS .……………………………………………………….... 9

ARGUMENTS ADVANCED……………………………………………………………… 10

PRAYER ……………………………………………………………………………………….. 16

MEMORIAL ON BEHALF OF RESPONDENT Page 2

 List of Abbreviations
CPC - Civil Procedure Code
HMA - Hindu Marriage Act
S - Sec
SCC - Supreme Court Cases
SC - Supreme Court
CO - Company
LTD - Limited
ORS - Others
& - And

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 INDEX OF AUTHORITIES

LEGISLATIONS CITED: -

THE HINDU MARRIAGE ACT, 1955

THE CODE OF CIVIL PROCEDURE,1909

LEGAL DATA: -

 Manupatra
 Indiankanoon.org
 Legalservicesindia.com
 Barandbench.com

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 CASES REFERRED
 Mousumi Chakraborty v. Subrata Guha Roy 95 CWN 380, II (1991) DMC 74
 Man Mohan Vaid vs Meena Kumari 107 (2003) DLT 195, II (2003) DMC 723
 Harmeeta Singh v. Rajat Taneja 2003 IIAD Delhi 14, 102 (2003) DLT 822, I (2003) DMC 443,
2003 (67) DRJ 58
 Yashitha Sahu v. State of Rajasthan & ors AIR2020SC577
 Lalji Raja & Sons v. Firm Hansraj Nathuram 1971 AIR 974, 1971 SCR (3) 815
 Munish kakkar v. Nidhi kakkar SCOR 27097 2019
 Marine Geotechnics LLC v/s Coastal Marine Construction & Engineering Ltd
2014(2)BomCR769
 Raj Rajendra Sardar Maloji Marsingh Rao Shitole vs Sri Shankar Saran and Ors 1962
AIR 1737 1963 SCR (2) 577
 Padmini Mishra v. Ramesh Chandra Mishra, AIR 1991 Ori. 263
 International Woollen Mills v. Standard Wool (UK) Ltd AIR 2000 P H 182, (2000)
124 PLR 541
 Ganjan Sheshadri Pandharpuka v. Shanta bai (1939) 41 BOMLR 818
1.

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 STATEMENT OF JURISDICTION
The present petition is not maintainable in the hon’ble court as it is barred by S.11 r/ w S.151
of CPC

S.11-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.

S.151-Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of
the Court to make such orders as may be necessary for the ends of justice or to prevent abuse
of the process of the Court.

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 STATEMENT OF FACTS
Ramant and Neha (a Major in the Indian Army), both residents of Jalandhar, belong to
Ravidasia community of Punjab, who are Hindus by religion, got married in 2007 in Anand
Karaj form of marriage, which is the marriage ceremony of Sikhs. The couple got their
marriage registered as per the provisions of The Hindu Marriage Act, 1955 and in effect a
marriage certificate was issued by the authorities. Out of this wedlock two children were born
in the year 2008 and 2011 respectively. In 2008, after taking retirement from Indian Army,
Ramant went to England for higher studies and stayed there for two years. Then in April 2010,
he moved to Canada and called his wife to join him there along with their first child. In
January 2011, their second child was born in Canada. In February 2011, he went to New
York. Thereafter he asked Neha to go back to India. In March 2011, Neha along with her
children came back to Punjab (India). After moving to New York, Ramant severed all his
contacts with Neha. He had developed an extra marital affair with a lady named Elizabeth
Prescott. In January 2012, Neha wrote a letter to Ramant expressing her willingness to join
Harsh in New York. Ramant in reply wrote to Neha that she should not come to New York, as
he was interested in getting their marriage dissolved. In April 2012, he filed a petition for
divorce in Trial Court of New York on the ground that his marriage has irretrievably broken
down. Neha could not contest these proceedings, she having no means to go to New York.
Meanwhile in July 2012, the trial court of New York granted a divorce decree in favour of
Ramant. Further, the court ordered that the husband would pay to the wife and children an
amount of Rs. 50000 per month for their maintenance. Since Ramant failed to pay maintenance
to wife and children, Neha approached the Trial Court of New York through a letter and
prayed that she be provided legal aid. Thereafter, proceedings were initiated and warrants of
arrest was issued against Ramant. She further said that the ex parte decree of divorce obtained
by the husband was not binding on her and was illegal and that she continues to be the wife
of Ramant. She further asserted that as per the provisions of the Hindu Marriage Act, 1956, the
grounds of divorce (on the basis of adultery, cruelty and desertion) under section 13 of the
Act are available to the wife under the given set of circumstances. In fact, she is the actual
victim, who was being further victimized by the order of the New York, Trial Court. In April
2013, Neha filed a petition under section 9 of the Hindu Marriage Act, 1955 for Restitution of
Conjugal Rights in the District Court, Jalandhar. Ramant appeared in the Court and filed an
application for dismissal of petition. He did not file any written statement and he referred to
the decree of divorce granted by the Trial Court of New York and said that despite of notice,
Neha did not contest the same and by not raising any objection she is deemed to have
accepted the jurisdiction of the Foreign Court in trying the petition and thus making the
decree nisi-absolute by the Foreign Court. Further, by accepting the maintenance, Neha again
in-effect accepted the judgment of the foreign Court and is thus estopped from filing the
present petition (Under Section 11 read with Section 151 of Civil Procedure code, 1908). The
case is pending for adjudication in District Court, Jalandhar.

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 ISSUES OF THE CASE
1. Whether the marriage of Neha and Ramant is valid as per the provisions of The Hindu
Marriage Act, 1955?

2. Whether non-contest by the wife of divorce petition filed by the husband in a Foreign
Court imply that she had conceded to the jurisdiction of the Foreign Court?

3. Whether the principle of Res-Judicata under Section 11 of the Civil Procedure Code,
1908 is applicable to the proceedings being initiated in District Court, Jalandhar?

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 SUMMARY OF ARGUMENTS
1. Whether the marriage of Neha and Ramant is valid as per the provisions of The Hindu
Marriage Act, 1955?

It is humbly submitted before this hon’ble court that the marriage of Neha and Ramant is valid
as it satisfies the conditions of valid marriage stated in the Hindu Marriage Act, 1955

2. Whether non-contest by the wife of divorce petition filed by the husband in a Foreign
Court imply that she had conceded to the jurisdiction of the Foreign Court?

It is humbly submitted before this hon’ble court that the non-contest of divorce petition by
the wife filed by the husband in the foreign court imply that she conceded to the jurisdiction
of the foreign court by remaining silent voluntarily after receiving the notice of proceedings
and the decree of divorce but responding and seeking legal aid after failure to receive the
maintenance which she should have approached at the time of proceedings for divorce went
on.

3. Whether the principle of Res-Judicata under Section 11 of the Civil Procedure Code,
1908 is applicable to the proceedings being initiated in District Court, Jalandhar?

It is humbly submitted before this hon’ble court that as per the concept of comity of courts
and sec 13 and 14 of CPC , the foreign judgement is in accordance with in the provisions of
CPC, hence the foreign decree of divorce acts as res judicata to the petition filed by the
plaintiff.

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 ARGUMENTS ADVANCED
1.Whether the marriage of Neha and Ramant is valid as per the provisions of The Hindu
Marriage Act, 1955?

Ramant and Neha belong to the Ravi Dasia community of Punjab and are Hindus by religion.
They got married in Anand Karaj form of marriage, which is the marriage ceremony of Sikhs.
Though there is the Anand Marriage Act (for Sikhs) initiated during the British era of 1909,
had not been implemented till 2012. Until then the marriages happened in the form of Anand
karaj were registered under HMA,1955. Hence, the marriages done under this form were
being registered under Hindu Marriage Act, 1955.

Sec 2(a) of HMA, 1955 states that- to any person who is a Hindu by religion in any of its
forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo,
Prarthana or Arya Samaj. This section speaks about religion but not about communities under
those religions. So it is implied that it includes all the communities under the religions
mentioned in sec 2 of HMA. Here both Neha and Ramant are Hindus by religion, so the
marriage registered under Hindu Marriage Act,1955 is valid. And they have fulfilled the
conditions of Hindu marriage Act, 1955 which are laid down Under Sec-5 of the Act which
are as follows

A marriage may be solemnized between any two Hindus, if

the following conditions are fulfilled, namely:—
(i) neither party has a spouse living at the time of the marriage;
1[(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 21 and the bride, the age of 18at 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;

In the case of Mousumi Chakraborty v. Subrata Guha Roy, division bench of Calcutta high
court observed that the registration is not the sole proof of marriage in order to become a
valid marriage. Section 7 of the said Act provides that the validity of a marriage will depend
on observance of "customary rites and ceremonies". The expression "customary rites and
ceremonies" means such Shastric ceremonies, which the caste or community to which party
belongs is customarily following. Customary rites and ceremonies to be accepted must be

MEMORIAL ON BEHALF OF RESPONDENT Page 10

shown to have been followed definitely as an essence of marriage ceremony from ancient
times and recognised such ceremonies as obligatory. Since Anand karaj form of marriage is a
customary ceremony recognized and performed by Sikhs it is valid under S.7 of HMA,1955,
S
by virtue of this the marriage between Ramant and valid even as per sec.7 of the HMA.
It was in the case of Man Mohan Vaid vs Meena Kumari ,Delhi High Court stated that if
marriage marriage is solemnized according to rules of the Committee that marriage ceremony
would be valid marriage. As regards the alleged non-performance of saptpadi, firstly it shall
be presumed in the circumstances in the shape of lavan feras and secondly non-performance
by itself would not be sufficient to declare marriage invalid/void or voidable. Hence even in
the absence of Saptapadi if the marriage ritual is recognized by the Gurudwara Committe it is
a valid marriage.

Hence the marriage is valid according to Hindu Marriage Act,1955.

2. Whether non-contest by the wife of divorce petition filed by the husband in a Foreign
Court imply that she had conceded to the jurisdiction of the Foreign Court?

Eligibility to file a divorce petition:

One can file a divorce petition in New York if either of the spouse is resident of New York.
Conditions to become resident is either you have domicile in New York or if your domicile
is not New York State but you maintain a permanent place of abode in New York State for
more than 11 months of the year and spend 184 days or more (any part of a day is a day for
this purpose) in New York State during the tax year. Here Mr.Ramant has been living in New
York since Feb 2011 and the suit instituted in April which count for more than 365 days or an
year which gives him right to file a divorce petition.

The plaintiff despite of notice given by the foreign court, did not contest the same and by not
raising any objection she is deemed to have accepted the jurisdiction of the Foreign Court in
trying the petition and thus making the decree nisi-absolute by the Foreign Court. A decree
becomes nisi absolute after six weeks from day one of the Decree Nisi is pronounced. The
petitioner was having 6 weeks to raise objection on the decree passed, but she remained
silent. If we consider that she didn’t conceded to jurisdiction of foreign court, she didn’t even
file the petition in the Indian court rather she asked for the legal aid which in turn lead to
issuance of arrest warrant against the respondent and after failing to receive the amount of
maintenance she choose to file the petition for restitution of conjugal rights with a mala fide
intention to create hurdles in the life of respondent. The petitioner has falsely raising that the
principles of natural justice were violated but in real all the principle of natural justice are
met, she was given notice while initiating the proceedings and had time to raise objection
before decree becoming nisi absolute.
A similar situation arose before the Delhi High Court in Harmeeta Singh v. Rajat Taneja.
Here the husband had filed proceedings in the foreign court. Wife has approached the Delhi
High Court by way of a civil suit. High Court restrained the husband for continuing with the
proceedings in the foreign court, as the wife had no spouse visa, she possibly could not
defend the proceeding in the foreign court. Of course, there was no occasion for the wife to

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submit to jurisdiction of the foreign court. In this case wife approached the court in India
after getting to know about the proceedings initiated in foreign court as she had no means to
contest them. But in the present case petitioner neither at the time of proceedings initiated nor
before the decree becoming nisi absolute approached the court.
The subject of participating in the proceedings fall into two categories 1) did not attend and
not actively participated 2) attend and actively participate. When the non-applicant consents
to the passing of the decree of divorce it is another form of “attend and actively participate”.
Here the wife consented to the decree by reporting the failure of maintenance to the foreign
court.
Hence the non-contest by the wife of divorce petition filed by the husband in a Foreign Court
imply that she had conceded to the jurisdiction of the Foreign Court.

3. Whether the principle of Res-Judicata under Section 11 of the Civil Procedure Code,
1908 is applicable to the proceedings being initiated in District Court, Jalandhar?

Jurisdiction of New York Court:

The trial court of New York has jurisdiction to try the case if the suit is instituted by the
resident of New York State. The respondent in the present case has been living in New York
from Feb 2011 and the suit in the court of New York was filed in April 2012 which gives the
jurisdiction power to the court on the basis of he is a resident as he fulfilled the condition of
184 days stated in the provisions of Tax Law and he didn’t fall in any exceptions of group A
or group B and he satisfies the concept of domicile.

Concept of comity of courts and foreign court:

 In the recent case of Yashitha Sahu v. State of Rajasthan & ors Supreme court of India
recognized and supported the concept of comity of courts by opining that it is of
paramount importance, the courts of one jurisdiction should respect the orders of a court
of competent jurisdiction even if it beyond its territories. And previously to this case
many judgements passed by American courts were recognized under the concept of
comity of courts.
 The concept of foreign court and foreign judgment are recognized by CPC and defined
under sec 2(5) and 2(6) of the Code respectively.

Principles of Natural Justice:

The foreign court justified the principles of natural justice by serving a notice when the
proceedings were initiated but the plaintiff remained silent despite of utilising the chance of
being heard. And she didn’t raise the objection even in the time span of decree nisi becoming
nisi absolute and even in the case of maintenance when she asked for the legal aid the court
heard the request and proceeded with providing legal aid and initiated proceedings and issued
arrest warrant against the respondent in the present case. Hence the principle of natural
justice met by the trial court of New York.

Ex – parte decree and its Validity:

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The concept of Ex-parte decree is also recognized by CPC under order 9 rule 6(1)(a) which
states that Where the plaintiff appears and the defendant does not appear when the suit is
called on for hearing, then—[(a) When summons duly served.—if it is proved that the
summons were duly served, the Court may make an order that the suit shall be heard ex parte
and order 9 rule 13 provides that no Court shall set aside a decree passed ex parte merely on
the ground that there has been an irregularity in the service of summons, if it is satisfied that
the defendant had notice of the date of hearing and had sufficient time to appear and answer
the plaintiff's claim. The plaintiff in this case has a time of 4 months from the initiation of
proceedings and the decree becoming nisi absolute but the plaintiff remained silent the whole
time , hence the ex parte decree can’t be set aside.

It was held in the case of Lalji Raja & Sons v. Firm Hansraj Nathuram, 1 SCC 721, 725
(1971)-Ex-parte foreign orders are enforceable in India, if shown that they have been decided
upon the merits of the case, mere fact that it is an ex-parte order cannot conclude that it is not
decided upon the merits of the case.

Res judicata:

“In considering the essential elements of res judicata one inevitably harks back to the
judgment of Sir William De Grey (afterwards Lord Walsingham) in the leading Duchess of
Kingston’s case [2 Smith Lead. Cas. 13th Ed. pp. 644, 645]. Said William De Grey,
(afterwards Lord Walsingham) “from the variety of cases relative to judgments being given
in evidence in civil suits, these two deductions seem to follow as generally true: First, that the
judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as
evidence, conclusive between the same parties, upon the same matter, directly in question in
another court; Secondly, that the judgment of a court of exclusive jurisdiction, directly upon
the point, is in like manner conclusive upon the same matter, between the same parties,
coming incidentally in question in another court for a different purpose”.

Section 11 of CPC deals with the Principle of Res judicata which states that-

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.

In the given case the marriage between the parties was the matter directly in issue and has
been decided by the court of competent jurisdiction. By specially considering the explanation
VII in the given section it is applicable to the execution petitions also.

Section 13 of CPC deals with whether the judgement passed by a foreign court is conclusive
are not by considering the points which are stated as follows

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—

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(a) where it has not been pronounced by a Court of competent jurisdication;

(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 2[India] in cases in which such law is
applicable;

(d) where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law in force in.

The judgement given by the foreign court does not fall into any of the exceptions stated
above, hence the judgement of the foreign court is conclusive.

Though the HMA, 1955 has not mentioned irretrievable break down as ground of divorce
under S.13, the Supreme Court of India in the case of Munish kakkar v. Nidhi kakkar granted
divorce on the ground of irretrievable breakdown of marriage by utilizing the power of
Article 142 of Indian Constitution. So the ground of irretrievable break down of marriage is
recognized in India and is not against the law of India and does not fall in the exception of
Sec.13(3) of CPC.

In Marine Geotechnics LLC v/s Coastal Marine Construction & Engineering Ltd, the court
referred to the judgement of Raj Rajendra Sardar Maloji Marsingh Rao Shitole vs Sri Shankar
Saran and Ors. and stated that sec 13 of CPC is a substantive law not a mere procedure and
S. 13 makes no distinction between judgments of a court in a reciprocating territory and those
of courts in non-reciprocating territories. It also opined that an ex-parte decree is not
necessarily one that is always, and ipso facto, not on merits. If a court has considered and
weighed the plaintiffs’ case and assessed his evidence, it will be on merits, notwithstanding
that it is ex-parte.

S. 14 of CPC stipulates that “Presumption as to foreign judgments.-The Court shall presume

upon the production of any document purporting to be a certified copy of a foreign judgment,
that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary
appears on the record; but such presumption may be displaced by proving want of
jurisdiction.” The Orissa High Court in the case of Padmini Mishra v. Ramesh Chandra
Mishra, held that when a party to a proceeding before a court at New York did not take any
plea about want of jurisdiction of the court at New York and allowed the matter to proceed ex
parte, the presumption under S. 14 has to be made. Also mentioned and also stated decree of
divorce passed by a Foreign Court- Grounds mentioned under Section 13 Clauses (a) to (f)
not satisfied – Neither was there any proof to bring the case within the ambit of said clauses
of Section 13 C.P.C. – Held, the decree passed by the foreign Court will be binding on the
parties – The law contained in Sections 13 and 14 C.P.C. which is not merely rules of
procedure but rules of substantive law recognizing conclusiveness of a foreign judgment – In
such circumstances the foreign decree will be binding on the parties .

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The Supreme Court of India in International Woollen Mills v. Standard Wool (UK) Ltd. view
taken was when evidence was led by the plaintiff applicant in the foreign court, even though
the opposite side may have been served but not appearing, the decision would be “on merits”

In the case of Ganjan Sheshadri Pandharpuka v. Shanta bai, it was held that even if the
decree is ex parte, it is on the merits of the case it is valid.

S.47decree.—(1) All questions arising between the parties to the suit in which the decree was
passed, or their representatives, and relating to the execution, discharge or satisfaction of the
decree, shall be determined by the Court executing the decree and not by a separate suit.

Hence the judgement is conclusive and the principle of res judicata is applicable to the
present suit.

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 PRAYER
In light of the issues raised, arguments advanced, and authorities cited, the
counsel for respondent requests this Hon’ble Court to

1. Reject the petition filed by the plaintiff

And Pass any other Order, Direction, or Relief that it may deem fit in the Best
Interests of Justice, Fairness, Equity and Good Conscience.

For This Act of Kindness, the respondent shall duty bound forever pray.

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