MOOT PROBLEM-2 (MEMORIAL ON BEHALF OF THE APPELLANT)
MOOT
PROBLEM-2
(MEMORIAL ON BEHALF OF THE
APPELLANT)
Mr. Alex, belonging to an
economically backward class family from Uttam Desh, A state of India, and Ms.
Siri of an economically forward class family hailing from Indraprastha, another
state of India, were working in a multinational company in NCTR (National
Capital Territorial Region) since 2013; although their department were
different, they used to meet often during lunch hours. After some time, Mr.
Alex, having got a hike of Rs. 5000/-, changed companies. Later, after a 2-year
gap, they met again at a mutual friend's wedding and exchanged contact numbers.
They started chatting, which led to some personal meetings, and the frequency
of these meetings increased over time. The venue of their meetings spanned
their homes, offices, and coffee shops. By 2017, they realized they were in
love and eventually married with their parents' consent in 2019, according to
Hindu rites and rituals, in Rostampur District, Uttam Desh. They were happy in
the initial days of their marriage; however, on the 15th day of marriage, in
the morning, when Ms. Siri went to her office, she didn’t return home until
night. As time passed, all the family members got worried. Alex and his parents
tried to call Ms. Siri repeatedly, but she didn’t answer. On the 16th day of
marriage, Alex and his parents visited her mother’s house, and Siri, too, was
there with her. Her in-laws and husband told her that this behaviour from their
daughter-in-law was unacceptable. Yet they condescended to give her a chance
and wanted her to return to her marital home. To which Siri replied that she
was not happy with her marriage and would not return. Siri’s mother interrupted
and said that she would convince and send her back. After 26th day of marriage,
Ms. Siri lodged a complaint at Hauj Khas Police Station, Indraprastha Section
85 of the BNS, 2023 that Alex and his parents used to torture her and her
mother-in-law used to taunt her that she had done ‘black magic’ on her son
because of which he fell in love with her, otherwise they were getting good
proposals for his marriage. She also showed the lady constable injury marks on
her hand and shoulder while lodging the FIR. 7. The Police investigated the
matter but did not find any credible evidence; hence closed the investigation,
with the remarks that no offence was made out and the injury marks appeared to
be accidental in nature and no evidence sufficient to proceed was discovered
during the investigation; the police also cited that this was a normal practice
of today’s society to harass the in-laws, and the daughters-in-law often adopt
such practices. During the investigation, the police also recorded a statement
from one of Alex's neighbours, who confirmed that Alex's bike was damaged in an
accident. After that incident, one day, when Alex was with his friend Paul in a
bar, he started crying. When Paul asked for the reason, he confided that he had
been in love with Siri, but she had left their home. She had said that she
would not live with Alex in a small house and wanted him to buy a villa or a
big apartment. She also wished that they both should start living separately.
Alex even asked his friend for a loan to buy a house to fulfill Ms. Siri’s wish,
but Ms. Siri left and never returned, though Alex wanted her in his life and
could not survive without her. After listening to Mr. Alex's story, Mr. Paul
suggested that Mr. Alex file a petition for restitution of conjugal rights, and
after that, Mr. Alex filed a petition for restitution of conjugal rights in the
Family Court of Rostampur District, Uttam Desh. In the said petition, the court
issued a process in the name of Siri, but it never reached her, as she had
moved from that place. On continuous failure to serve the summons, the Family
Court passed an ex parte order in favour of Mr. Alex. Meanwhile, Siri wanted to
move to another state to get a new environment, as she felt disturbed here. She
found a job in a company based in Chennai, a southern state of India. She moved
to Chennai for her joining. While at the office, she used to avoid gatherings,
but one day her boss, Mr. S Raja, asked her why, and she refused to answer.
After that, her boss started giving her extra attention; he spent more time
with her in the office, and one day they met outside the office, where she
disclosed her marital problems. She stated that her husband was an alcoholic,
and he used to mistreat her and often harass her physically, and that is why
she decided to come out of that toxic relationship, leave the marital home, and
move to Chennai. The very next day, Mr. S Raja proposed to her, and,
surprisingly, she, without any hesitation, agreed to enter a second marriage.
However, Mr. S Raja advised her that she had to get a divorce first; only then
would they enter into a marriage. She filed a divorce petition in the Family
Court, Naalpur district of Chennai, on the grounds of cruelty. The family court
issued a summons at the address of Mr. Alex, but unfortunately, Alex had
shifted to another place, and the summons was not served. Under the
circumstances, the Family Court granted an ex parte decree in favour of Siri.
Following this, Siri entered into a marriage agreement with Mr. S Raja. On the
other hand, the Family Court of Rostampur District, Uttam Desh, gave a decision
in favour of Mr. Alex, but this decision no longer benefited him, as Siri had
completely cut off contact. He started going to the bar again, where he met Mr.
Paul. Paul stated that he had been looking for him for several days because he
wanted to let him know that the one he was dying for was already available on a
matrimonial site, where she was seeking a husband, and that she was a divorcee.
But Alex said that they weren’t divorced, so it was impossible. To verify the
fact, they went to Chennai to meet Siri, and Siri narrated the story that she
had a decree in her favour from the Family Court of Naalpur district of
Chennai, and she was married to someone else, and asked her privacy to be
respected. Mr. Alex said he also has an order in his favour for restitution of
conjugal rights, and he would not let her go; he wanted her back in his life. Mr.
Alex approached the High Court of Chennai in appellate jurisdiction to
challenge the decree passed in favour of Siri, along with an additional prayer
that she be charged with bigamy. Siri also challenged the ex parte order of
restitution of conjugal rights in the High Court of Uttam Desh. Along with an
application in the Supreme Court for the transfer of both the petitions from
the High Court of Uttam Desh, a petition was filed, and the Supreme Court
transferred the same. The matter is now listed before the High Court of Uttam
Desh with the following issues: 1. Whether the decree passed in favour of Siri
is valid or liable to be set aside? 2. Whether the order of restitution of
conjugal rights passed in favour of Mr. Alex is valid or liable to be set
aside? 3. Whether Siri can be prosecuted for bigamy or not?
IN THE HON’BLE HIGH COURT OF UTTAM DESH
(Appellate Jurisdiction)
MR. ALEX
…Appellant
VERSUS
MS. SIRI
…Respondent
MEMORIAL ON BEHALF OF THE APPELLANT
TABLE OF CONTENTS
- List
of Abbreviations
- Index
of Authorities
- Statement
of Jurisdiction
- Statement
of Facts
- Issues
Raised
- Summary
of Arguments
- Arguments
Advanced
- Prayer
1. LIST OF ABBREVIATIONS
Abbreviation Full Form
BNS Bharatiya Nyaya Sanhita, 2023
BNSS Bharatiya Nagarik Suraksha Sanhita, 2023
HMA Hindu Marriage Act, 1955
HC High Court
SC Supreme Court of India
2. INDEX OF AUTHORITIES
A. STATUTES
- Hindu
Marriage Act, 1955
- Bharatiya
Nyaya Sanhita, 2023
B. CASE LAWS
- Yamunabai
Anantrao Adhav v. Anantrao Shivram Adhav
- Sarla
Mudgal v. Union of India
- Neerja
Realtors v. Janglu
- Kailash
v. Nanhku
3. STATEMENT OF JURISDICTION
The Hon’ble High Court of Uttam
Desh has jurisdiction:
- Under
Appellate Jurisdiction over Family Court decisions
- Under
powers conferred by the transfer order of the Hon’ble Supreme Court
3.
STATEMENT OF JURISDICTION
The Appellant respectfully submits
that this Hon’ble High Court has jurisdiction to entertain the present matter:
- Under
Section 19 of the Family Courts Act, 1984 (Appellate Jurisdiction
over Family Court decrees);
- Under
the Hindu Marriage Act, 1955, particularly Section 9
(Restitution of Conjugal Rights) and Section 13 (Divorce);
- To
examine the validity of ex parte decrees passed in violation of natural
justice;
- To
adjudicate bigamy under Section 82 of the Bharatiya Nyaya Sanhita, 2023;
- By
virtue of the transfer of proceedings by the Hon’ble Supreme Court under Article
139A of the Constitution of India.
4. STATEMENT OF FACTS
·
Mr. Alex and Ms. Siri were married in 2019
under the provisions of the Hindu Marriage Act, 1955. Shortly
thereafter, the Respondent left the matrimonial home without reasonable cause.
·
The Respondent filed a complaint alleging
cruelty under Section 85 of the Bharatiya Nyaya Sanhita, 2023, which,
upon investigation, was found to be baseless. Subsequently, the Appellant filed
a petition for restitution of conjugal rights under Section 9 of the Hindu
Marriage Act, 1955, and obtained an ex parte decree.
·
Thereafter, the Respondent filed a divorce
petition under Section 13 of the Hindu Marriage Act, 1955, before the
Family Court at Chennai and obtained an ex parte decree without proper service
of summons upon the Appellant.
·
Relying on the said decree, the Respondent
contracted a second marriage during the subsistence of the first marriage,
thereby attracting liability under Section 82 of the Bharatiya Nyaya
Sanhita, 2023.
·
Aggrieved, the Appellant has approached this
Hon’ble Court challenging the validity of the ex parte divorce decree and
seeking appropriate reliefs, including action for bigamy.
5. ISSUES RAISED
ISSUE 1
Whether the ex parte divorce decree passed in favour of the Respondent under Section 13 of the Hindu Marriage Act, 1955, is valid in law, despite improper service of summons and violation of principles of natural justice?
ISSUE 2
Whether the ex parte decree for restitution of conjugal rights granted in favour of the Appellant under Section 9 of the Hindu Marriage Act, 1955, is valid and legally enforceable?
ISSUE 3
Whether the
Respondent is liable for the offence of bigamy under Section 82 of the
Bharatiya Nyaya Sanhita, 2023, having contracted a second marriage during the
subsistence of the first marriage?
6.
SUMMARY OF ARGUMENTS
ISSUE
1
Whether
the ex parte divorce decree under Section 13 of the Hindu Marriage Act, 1955,
is valid?
The
ex parte divorce decree obtained by the Respondent is invalid in law as it
contravenes fundamental principles of natural justice, specifically the rule of
audi alteram partem (right to be heard). The summons was not properly
served on the Appellant, depriving him of the opportunity to present his case.
An order issued without proper service is void and may be set aside.
ISSUE
2
Whether
the restitution of conjugal rights decree under Section 9 of the Hindu Marriage
Act, 1955, is valid?
It
is submitted that the decree for restitution of conjugal rights obtained by the
Appellant is valid and legally enforceable, as the Respondent withdrew from the
matrimonial home without reasonable cause. The Appellant followed due legal
procedure, and the Family Court rightly granted relief under Section 9 of the
Act.
ISSUE
3
Whether
the Respondent is liable for bigamy under Section 82 of the Bharatiya Nyaya
Sanhita, 2023?
It
is submitted that the Respondent is liable for the offence of bigamy, having
contracted a second marriage during the subsistence of the first marriage.
Given the invalidity of the divorce decree, the first marriage remains legally
subsisting, thereby attracting liability under Section 82 of the Bharatiya
Nyaya Sanhita, 2023.
7. ARGUMENTS ADVANCED
ISSUE
1: THE EX PARTE DIVORCE DECREE IS LIABLE TO BE SET ASIDE
1.1
Violation of principles of natural justice
It
is most respectfully submitted that the ex parte divorce decree passed in
favour of the Respondent under Section 13 of the Hindu Marriage Act,
1955, should be set aside as it violates the principles of natural justice. The
Appellant was not duly served with a summons, depriving him of the opportunity
to be heard.
In
Neerja Realtors v. Janglu, the
Hon’ble Supreme Court held that improper service of summons vitiates the entire
proceeding.
1.2
Fraud and suppression of material facts
It
is further submitted that the Respondent deliberately failed to disclose the
correct address of the Appellant and obtained the decree by misleading the
court. It is a settled principle that fraud vitiates all judicial acts,
rendering any decree obtained by fraud null and void in law.
1.3
Ex parte decree without due process is void
It
is submitted that an ex parte decree issued without compliance with procedural
requirements cannot be sustained. The absence of proper service renders the
decree legally unsound and subject to being set aside by this Hon’ble Court.
ISSUE
2: THE DECREE OF RESTITUTION OF CONJUGAL RIGHTS IS VALID
2.1
Validity under Section 9, HMA
It
is submitted that the decree for restitution of conjugal rights granted in
favour of the Appellant under Section 9 of the Hindu Marriage Act, 1955,
is valid and enforceable. The Respondent withdrew from the matrimonial home
without reasonable excuse, entitling the Appellant to relief.
2.2
Burden of proof lies on the Respondent
Under
Section 9, the burden lies on the Respondent to prove a reasonable cause for
withdrawal. In this case, no valid justification has been established.
2.3
Conduct of Respondent shows desertion
The
Respondent voluntarily left the matrimonial home, refused to return, and
imposed unreasonable conditions, including separate residence and a better
lifestyle. This conduct constitutes unjustified withdrawal, thereby validating
the decree.
- Left
the matrimonial home voluntarily
- Refused
to return
- Imposed
unreasonable conditions (separate residence, better lifestyle)
This
clearly amounts to an unjustified withdrawal, validating the decree.
Issue
3: The Respondent's Liability for Bigamy
3.1
Second marriage during the subsistence of the first marriage
It
is submitted that the Respondent contracted a second marriage while the first
marriage was still subsisting, thereby incurring liability under Section 82
of the Bharatiya Nyaya Sanhita, 2023.
3.2
An invalid divorce decree cannot dissolve a marriage
As
the ex parte divorce decree is liable to be set aside, the first marriage
continues to subsist legally. Consequently, the second marriage is void.
3.3
Judicial precedents
In
Sarla Mudgal v. Union of India, the Hon’ble Supreme Court held that contracting a
second marriage during the subsistence of the first marriage is void and
punishable.
Similarly,
in Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav, the court
held that such marriages lack legal sanctity.
3.4
Mens rea is not a defence
It
is submitted that ignorance of the law or reliance on an invalid decree does
not absolve the Respondent of criminal liability. Entering a second marriage
during the subsistence of the first marriage constitutes the offence of bigamy.
8. PRAYER
Considering
the facts, issues, and arguments presented, it is respectfully prayed that this
Hon’ble Court may:
a.
Set aside the ex parte divorce decree passed in favour of the Respondent under
Section 13 of the Hindu Marriage Act, 1955.
b.
Uphold and enforce the decree for restitution of conjugal rights granted in
favour of the Appellant under Section 9 of the Hindu Marriage Act, 1955.
c.
Hold the Respondent liable for the offence of bigamy under Section 82 of the
Bharatiya Nyaya Sanhita, 2023.
d.
Grant such other relief(s) as this Hon’ble Court may deem fit and proper in the
interest of justice, equity, and good conscience.
AND
FOR THIS ACT OF KINDNESS, THE APPELLANT IS IN DUTY BOUND SHALL EVER PRAY.
Place: Uttam Desh
Date: __________
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