FACULTY OF LAW

ALIGARH MUSLIM UNIVERSITY

Civil LAW MOOT MEMORIAL

Submitted to:
PROF. HASHMAT ALI KHAN

Submitted by:
YAMINI BAGHEL
17BALLB 47
GI7037
GROUP- 2
X- SEMESTER
IN THE HON’BLE DISTRICT COURT AT HAMIRPUR (HIMACHAL PRADESH)

Petition filed Under Section 22 of The Special Marriage Act, 1954

IN THE MATTER OF SHABANA

PETITIONER

V.

MUKESH RESPONDENT

WRITTEN SUBMISSION ON THE BEHALF OF THE PETITIONER

 INDEX

INDEX OF AUTHORITIES 5-8

STATEMENT OF JURISDICTION 9

SYNOPSIS OF FACTS 10-11

STATEMENT OF ISSUES 12

SUMMARY OF PLEADINGS 13-15

BODY OF PLEADINGS 16-43

ISSUE 1: WHETHER THE MARRIAGE OF SHABANA AND MUKESH IS VALID AS

PER THE PROVISIONS OF THE THE SPECIAL MARRIAGE ACT, 1954? 16-20

SUBMISSION-A THAT BOTH SHABANA AND MUKESH ARE THE CITIZENS OF INDIA AND
HENCE SECTION THE SPECIAL MARRIAGE ACT APPLIES TO THEM 16-17

SUBMISSION-B THAT THEIR MARRIAGE IS IN ACCORDANCE WITH SECTION 4 OF

THE SPECIAL MARRIAGE ACT 1954 17-18

SUBMISSION-C THAT ALL THE CONDITIONS OF SECTION 4 OF THE SPECIAL

MARRIAGE ACT WERE FULFILLED DURING THE SOLEMNIZATION OF THE
MARRIAGE
BETWEEN SHABANA AND MUKESH 18-19

SUBMISSION-D THE IMPERATIVES UNDER ARTICLE 21 AND ARTICLE 25(1) OF THE

INDIAN CONSTITUTION RENDER THE CONSUMMATION OF MARRIAGE AMONG
THE PARTIES AS VALID IN THE PRESENT CASE 19-20

ISSUE 2: WHETHER THE NON-CONTEST BY THE WIFE OF DIVORCE PETITION

FILED BY THE HUSBAND IN A FOREIGN COURT IMPLIES THAT SHE HAD
CONCEDED TO THE JURISDICTION OF THE FOREIGN COURT? 21-27
SUBMISSION-A THAT RESIDENT PROOF IS REQUIRED FOR THE FILING OF PETITION
IN FOREIGN COURT 21-22

SUBMISSION-B THAT FOREIGN JUDGEMENT IS NOT CONCLUSIVE AS THE PARTIES

WERE NOT RESIDENTS OF FRANCE 22-23

SUBMISSION-C THAT FRANCE IS NOT THE RECIPROCATING TERRITORY… 24-25

SUBMISSION-D THAT IRRETRIEVABLY BROKEN DOWN OF MARRIAGE IS NO GROUND

FOR DISSOLUTION OF MARRIAGE UNDER THE LAW 25-26

SUBMISSION-E THAT NON-CONTEST BY THE WIFE DOES NOT IMPLIES THAT SHE HAD
CONCEDED TO THE JURISDICTION OF THE FOREIGN COURT… 26

SUBMISSION-F THAT SUFFICIENT CAUSE IS THERE FOR NON-APPEARANCE BEFORE

THE FOREIGN COURT 27

ISSUE 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? 28-34

SUBMISSION-A THAT IN THE PRESENT CASE, THE ESSENTIALS OF RESTITUTION OF

CONJUGAL RIGHTS ARE FULFILLED 28-30

SUBMISSION-B THAT SEC. 11 OF THE CPC, 1908 WILL NOT OPERATE AS A BAR TO THE
PROCEEDING INITIATED BY SHABANA 30-31

SUBMISSION-C THAT JUDGEMENT OF FRANCE TRIAL COURT IS BEYOND

MERIT 32-33

SUBMISSION-D THAT PETITIONER BY ACCEPTING THE MAINTENANCE DID NOT

CONSENT TO THE DECREE OF THE FRANCE TRIAL COURT 33-34
ISSUE 4: WHETHER RELATIONSHIP OF MUKESH AND EMILE IS LEGAL? 35-37

SUBMISSION-A THAT CIVIL SOLIDARITY PACT GETS DISSOLVED WHEN ONE OF THE
PARTNER IS MARRIED 35-36

SUBMISSION-B THAT CIVIL SOLIDARITY PACT BETWEEN EMILE AND MUKESH

AMOUNTS TO ADULTERY, HENCE BECOMES A GROUND FOR DIAVORCE BY
SHABANA UNDER SECTION 27 OF THE SPECIAL MARRIAGE ACT,1954 36-37

ISSUE 5: WHETHER SHABANA IS ENTITLED TO RESTITUTION OF CONJUGAL

RIGHTS UNDER THE SPECIAL MARRIAGE ACT , 1954? 38-43

SUBMISSION-A THAT IN THE PRESENT CASE THE RESTITUTION OF CONJUGAL

RIGHTS ARISE 38-40

SUBMISSION-B THAT THERE IS A WITHDRAWAL OF CONJUGAL RELATIONSHIP ON

THE PART OF MUKESH 40-41

SUBMISSION-C THAT THERE IS NO REASONABLE EXCUSE OR REASONABLE CAUSE

ADDUCED BY MUKESH FOR THE WITHDRAWAL OF CONJUGAL RELATIONSHIP…41-42

SUBMISSION-D THAT THE BURDEN OF PROOF IS ON MUKESH AS HE HAS

WITHDRAWN UNREASONABLY FROM SHABANA‟S SOCIETY 42-43

PRAYER… 44
 INDEX OF AUTHORITIES

CONSTITUTION OF INDIA, 1950

1. LIST OF STATUTES REFERRED

i. Criminal Procedure Code, 1973
ii. The Special Marriage Act, 1954
iii. International Comity Of Courts
iv. The Code Of Civil Procedure, 1908

2. LIST OF JOURNALS REFERRED

i. All India Reporters
ii. Indian Law Reporters
iii. Supreme Court Cases

3. LIST OF CASES REFERRED

CASE PAGE NO.

ATMARAM V. NARBADA, 1980 RAJ. 35. 43
BITTOO V. RAMDAS, 1983 ALL. 371 43
CENTRAL BANK OF INDIA LTD. V. RAM NARAIN, AIR 1955 SC 36 21
COMMR. HRE MADRAS V. SRI LAKSHMINDRA, A.I.R. 1954 S.C. 282. 20
DARSHAN GUPTA V. RADHIKA GUPTA, (2013) 9 SCC 1 25
DEEP KAHAR, 1962 PUNJ. 183 41
G.P. SRIVASTAVA V. R.K. RAIZADA, (2000) 3 SCC 54 27
GAUR GOPAL ROY V. SIPRA ROY, AIR 978 CAL. 163 21
GAYA V. BHAGWATI, 1966 M.P. 212. 41
GEETA MULLICK V. BROJO GOPAL MULLICK 26
GULAM ABBAS V. STATE OF UTTAR PRADESH, A.I.R. 1981 S.C. 20
2198.
25
GURBAX SINGH V. HARMINDER KAUR,(2010)14 SCC 301

GURDAYAL SINGH V. RAJAH OF FARIDKOT 21

HARPREET SINGH SEKHON V. RAJWANT KAUR, (2013) SCC 26
ONLINE P&H 4357
HARPREET SINGH SEKHON V. RAJWANT KAUR, 2013 SCC ONLINE 32
P&H 4357 : ILR (2014) 1 P&H 657 : ILR (2014) 1 P&H 876
43
JYOTHI V. PRATHAP, 1987 KANT. 24.

KEMPT V. KEMPT, (1953) 2 ALL E.R. 518. 42

KRISHNA V. SOM NATH, (1996) DMC 667 (P&H). 25
M. ISMAIL FARUQUI V. UNION OF INDIA, A.I.R. 1995 S.C. 605. 20
MIRCHULAL V. SMT. DEVI BAI, A.I.R. 1977 RAJ. 113. 41
MOINA KHOSLA V. AMARDEEP KHOSLA, A.I.R 1986 DEL. 399. 21
PANDU V. HARI, A.I.R 1936 NAG. 85 27
POWELL V. POWELL, 92 L.J.P. 6. 40
PRAMILABALA V. RABINDRANATH, A.I.R. 1977 ORISSA 132 41

PRANAV KUMAR MISHRA VS GOVT OF NCT .A.I.R 2009 Delhi High 17

Court WP(C) No 748
RAMESH CHANDRA V. PREMALATHA, A.I.R. 1979 M.P. 15. 42
RUSSEL V. RUSSEL, (1835) SOL. JO. 16. 42
SARLA RANI V. BHUSHANLAL, A.I.R 1976 J&K 12 27
SHYAMLAL V. SARASWATI, 1967 M.P. 204. 40
SMITH V. SMITH, (1939) 4 ALL E.R. 533 40
 SMT. SATYA V. TEJA SINGH, (1975) 2 S.C.R.1971 21
SONDUR GOPAL V. SONDUR RAJINI, 32
(2013) 7 SCC 426
SUNANDA V. GUNDOPANT 1961 ILR BOM 296 27
SURINDER V. GURDEEP, 1973 P & H 134. 41
SUSHILA BAI V. PREM NARAYAN, A.I.R. 1976 M.P. 225. 39
UPENDRA NATH V. LALL , A.I.R 1940 P.C. 222 31
VENUGOPAL V. LAXMI, 1936 MAD. 288. 40
WELDON V. WELDON, (1883) 99 P.D. 52. 40
WILKIES V. WILKIES, (1943) 1 ALL E.R. 433 40
Y. NARASIMHA RAO AND ORS V. Y. VENKATA LAKSHMI AND 24
ANR, 1991 SCR (2) 821
Y. NARASIMHA RAO V. Y VENKATA LAKSHMI, (1991) 3 SCC 451 : 22,36,37
1991 SCC (CRI) 626.
34
YUDHISHTER SINGH V. SARITA, A.I.R 2002 RAJ 382.

4. LIST OF BOOKS REFERRED

C.K. Takwani, Civil Procedure with Limitation Act, 1963 (Eastern Book Company, 8 th
Edition)

D.D. Basu, Commentary On The Constitution Of India, Wadhwa, India, 2007, 8th Edition,
Volume I And II

Dr. Avtar Singh, Code of Civil Procedure (Central Law Publications, 20 th Edition)

Dr. Kumud Desai,Indian Law of Marriages and Divorce Wadhwa India 2008 , 7th
Dr. Paras Diwan, Modern Hindu Law (Allahabad Law Agency, 22 nd Edition)
Dr. Rega Surya Rao, Lectures on Family Laws (Asia Law House, 2nd Edition)

Dr. S.N. Misra, The Code of Criminal Procedure, 1973 (Central Law Publications, 20th
Edition)

Dr. S.R. Myneni, Hindu Law (Asia Law House, 7nd Edition)

H.M. Seervai, Constitution Law Of India, Universal Publications, India, 2004, 4th Edition,
Volume I,II And III

M.P. Jain, India Constitutional Law, LexisNexis, India, 2010, 6th Edition Sir.

Dinshaw Fardunji Mulla, Mulla Hindu Law ( LexisNexis, 21st Edition)

Sir. Dinshaw Fardunji Mulla, Mulla The Code Of Civil Procedure Abridged ( LexisNexis,
16st Edition)

V.N. Shukla, Constitution Law Of India, Eastern Book Company, India, 2008, 11th Edition

5. LIST OF WEBSITES REFERRED

1. www.scconline.com
2. www.indiakanoon.org
3. www.lexisnexisacademic.com
4. www.manupatra.com
5. www.ncaer.org
6. www.undp.org.in
7. www.vakilno1.com
 STATEMENT OF JURISDICTION

In the present matter, the Petitioner humbly submits to the jurisdiction of the Hon‘ble District
Court of Hamirpur by way of petition of restitution of conjugal rights under Section 22 of the
The Special Marriage Act, 1954.

Section 22 of the The Special Marriage Act, 1954 reads as:

Section 22: Restitution of Conjugal Rights

When either the husband or the wife has, without reasonable excuse, withdrawn from the society
of the 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 application should not be granted, may decree
restitution of conjugal rights accordingly.

Explanation- Where a question arises whether there has been a reasonable excuse for
withdrawal from the society, the burden of proving a reasonable excuse shall be on the person
who has withdrawn from the society.
 SYNOPSIS OF FACTS

(¶1) Shabana and Mukesh (a Marine Engineer in Indian Army), both resident of HAMIRPUR
(HIMACHAL PRADESH) are Muslim and Hindu by religion respectively. They got married in
2011 according to the Hindu ceremonies and got their marriage registered as per the provisions
of The Special Marriage Act, 1954 and obtained a marriage certificate.

(¶2) In 2012, a child was born from this union. In January of 2013, Mukesh after taking
voluntary retirement went to France for higher studies. In April 2015, he called his wife and the
child. In January 2016, a second child was born in France. In February 2016 he came back to
Hamirpur along with his wife and two children.

(¶3) In March 2016 Mukesh again went to France for 6 months In September 2016 Mukesh
severed all his ties from her and developed an extra- marital affair with a woman named Emile.
When in January 2017, Shabana wrote a letter to Mukesh expressing her willingness to join him,
Mukesh in reply showed his interest in getting their marriage dissolved.

(¶4) In December 2017 he got the Citizenship Of France .In April 2018, Mukesh filed a petition
for divorce in Trial Court of France on the ground of irretrievably broken down marriage. In July
2018, the Trial Court granted him divorce decree as Shabana had not contest the proceeding
because she was having no means to go to France. The Court ordered Mukesh to pay Rs.35,000
per month maintenance to wife and children.

(¶5) In August 2018, Mukesh and Emile entered into a civil solidarity pact and continued to pay
maintenance to Shabana for 3 months. Since Mukesh failed to pay maintenance, Shabana
approached the legal aid cell Hamirpur and prayed for legal aid, proceedings were initiated and
warrants of arrest were issued against Mukesh. She claimed that the ex-parte divorce decree is
not binding on her and it was illegal. She asserted that she is the actual victim and according to
the Section 27 of the The Special Marriage Act, 1954, the wife has adultery, cruelty and
desertion as a ground of divorce.

(¶6) In December 2018, she also filed a petition for the restitution of conjugal rights under
Section 22 of the The Special Marriage Act, 1954 in the District Court of Hamirpur. Mukesh
appeared in the Court and did file an application in the reply of petition drafted by Shabana and
asserted that Shabana is bound by the decree of Trial Court, France as she 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 maintenance, Shabana , again in effect accepted the judgement of
the Foreign Court and thus estopped from filing the petition under section 11 read with section
151 of the Civil Procedure Code, 1908.
 STATEMENT OF ISSUES

ISSUE 1: WHETHER THE MARRIAGE OF SHABANA AND MUKESH IS VALID

AS PER THE PROVISIONS OF THE THE SPECIAL MARRIAGE ACT, 1954?

ISSUE 2: WHETHER 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?

ISSUE 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?

ISSUE 4: WHETHER RELATIONSHIP BETWEEN MUKESH AND EMILE IS LEGAL?

ISSUE 5: WHETHER THE PETITION OF RESTITUTION OF CONJUGAL RIGHTS

BY SHABANA, IS MAINTAINABLE IN THE EYES OF LAW?
 SUMMARY OF PLEADINGS

ISSUE 1: WHETHER THE MARRIAGE OF SHABANA AND MUKESH IS VALID AS

PER THE PROVISIONS OF THE THE SPECIAL MARRIAGE ACT, 1954?

The marriage of Shabana and Mukesh is valid as per the provisions of The The Special Marriage
Act, 1954 as this Act applies to any person who is a citizen of India, according to section 4 of
this act Any persons who does not have a spouse living, is of the age of 21 for male and 18 for
female and has a sound mind can marry each other. The constitutional imperative under Article
25(1) of the Constitution of India Grants them the freedom to observe the religious ceremony and
since the parties are not underage they are free to marry each other.

Laws regarding the registration of marriage at the time of consummation of marriage of the
parties, the marriage would be governed by The Special Marriage Act, 1954.

ISSUE 2: WHETHER 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?

Since both the husband and wife were the residents of India at the time of their marriage and so
Foreign Court had no jurisdiction moreover Shabana could not contest the proceedings as she
had no means to go to France. Since there was sufficient cause as the wife did not have the means
to reach the France Trial Court and her husband also denied to come there Order 9 Rule 13 of the
Civil Procedure Code, 1908, also, the France Trial Court is not the competent court in the cause
of Shabana and Mukesh and the judgement is not conclusive according to the section 13 of the
Civil Procedure Code, 1908, France is not reciprocating territory of India under section 44-A of
the Civil Procedure Code, 1908. Also, the irretrievable breakdown of marriage is not a ground
for the divorce under section 13(1) of the The Special Marriage Act, 1954.
 ISSUE 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, HAMIRPUR?

It is most humbly submitted before this Hon‘ble court that the aggrieved party needs to file a
petition to the district court and on being satisfied of the truth of the statements made in such
petition and that there is no legal ground why the application should not be granted, the judge
may decree Restitution of Conjugal Rights in his favour. Sec. 11 of the Civil Procedure Code,
‗Res Judicata‘ aims to prevent multiplicity of the proceedings and accords finality to an issue,
which directly and substantially had arisen in the former suit between the same parties or their
privies, decided and became final so that parties are not vexed twice over; vexatious litigation
would be put to an end and the valuable time of the court is saved.

ISSUE 4 : WHETHER THE RELATIONSHIP BETWEEN MUKESH AND SHABANA IS

LEGAL?
It is most humbly submitted before the Hon‘ble court that the aggrieved party does not recognize
the civil solidarity pact between Emile and Mukesh as the Trial court of France did not have the
competency to provide ex-parte decree to Mukesh hence he was never single. Since Mukesh was
never single therefore The Civil solidarity pact as described in the report to the Garde des Sceaux
(Minister of Justice) as the law (Loi n99-994 du 15 novembre 1999 relative au pacte civil de
solidarite)

is a contract between two adults to organize their cohabitation. The law also states that this
Civil Solidarity Pact gets automatically dissolved by the marriage or death of one of the two
partners and as mentioned in our case since Mukesh was never single then the pact was
automatically broken down. Also this creates a ground for the divorce petition filed by
Shabana as this amounts to Adultery under section 27 of The Special Marriage Act 1954.
ISSUE 5: WHETHER THE PETITION OF RESTITUTION OF CONJUGAL RIGHTS
BY SHABANA, IS MAINTAINABLE IN THE EYES OF LAW?

In the present case, the restitution of conjugal rights arise and should be granted to Shabana so as
to resume her married life with Mukesh and save her marriage; as there was no reasonable
excuse to withdraw from the society of Shabana and there is enough evidence to support the truth
of the statements and no legal ground to Mukesh for not granting restitution; also there was a
withdrawal of the conjugal relationship on the part of Mukesh; as well as there is no reasonable
excuse or reasonable cause adduced by Mukesh so as to justify the withdrawal from conjugal
relationship and the burden of proof solely lies on Mukesh as he has unreasonably withdrawn
from Shabana‘s society and there exists no cogent evidence to prove otherwise. Hence, the
petition is maintainable.
 BODY OF PLEADINGS

ISSUE 1: WHETHER THE MARRIAGE OF SHABANA AND MUKESH IS VALID AS

PER THE PROVISIONS OF THE THE SPECIAL MARRIAGE ACT, 1954?

It is most humbly submitted before this Hon‘ble Court that the marriage of Shabana and Mukesh,
who belong to the Islam and Hinduism respectively was solemnized by The Special Marriage
Act of 1954 and performed in accordance to the Hindu ceremonies1 is valid as per the provisions
of The Special Marriage Act of 1954 as this act applies to any person who is a citizen of India as
stated in Section 2 of this Act2. Any Person here means any citizen of India irrespective of their
religion, caste or creed. This Act empowers every citizen of India to marry any other person with
mutual consent irrespective of their religion. It empowers the Inter-religion Marriages to be
performed under this act. The constitutional imperative under Article 213 and Article 25(1) of the
Constitution of India4 grants them the freedom to Personal liberty to marry any person of their
choice and to observe the religious ceremony and since both the parties BEING CITIZEN OF
The Republic of India had mutually consented to get married under The Special Marriage Act
1954 and obtained the registration of marriage at the time of consummation of marriage of the
parties, the marriage would be governed by The Special Marriage Act, 1954.

SUBMISSION-A

THAT SHABANA AND MUKESH ARE CITIZENS OF INDIA AND SECTION 4 OF THE
SPECIAL MARRIAGE ACT APPLIES TO THEM

(¶1) It is most humbly submitted before this Hon‘ble Court that both husband and wife are
Hindus by religion and thus the application of the The Special Marriage Act, 1954 is valid in
their case of marriage according to section 2. A person who is a citizen of India (herein Shabana
1
¶1 of the Moot Proposition.
2
Section – 2, The Special Marriage Act, 1954: Application of Act.- (1) This Act applies, to the whole of India
except to the State of Jammu and Kashmir.
3
Article 21, The Constitution of India, 1950: No Person shall be deprived of his life or personal liberty except
according to the procedure established by law
4
Article 25, The Constitution of India, 1950: Freedom of conscience and free profession, practice and
propagation of religion (1) Subject to public order, morality and health and to the other provisions of this Part, all
persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
 and Mukesh who belongs to different religions 5) is eligible to the application of the Act. The
Delhi High Court while interpreting and relying upon the preamble of the Act in the case of
Pranav Kumar Mishra v Govt. of NCT Delhi6 held that this act was enacted to enable a special
form of marriage for any Indian citizen professing different faiths or desiring a civil form of
marriage.

(¶2) The term ‗whole of India‘ as mentioned under Section 2 of The Special Marriage Act does
not denote any particular or specific region, community or religion but includes every citizen of
India irrespective of any demarcation.

SUBMISSION-B

THAT THE MARRIAGE SOLEMNIZED BETWEEN SHABANA AND MUKESH UNDER

THE SPECIAL MARRIAGE ACT 1954 IS IN ACCORDANCE TO SECTION 4 OF THE
ACT.

(¶1) It is most humbly submitted before the Hon‘ble Court that since Shabana and Mukesh were the
citizens of the Republic of India and got married in accordance with the provisions of Section 4 of
The Special Marriage Act 19547 which provide certain conditions that need to be fulfilled at the time
of the marriage in order to get it solemnized under this section. These conditions are as follows
i) Each party involved should have no other subsisting valid marriage.
ii) The groom must be at least 21 years old and the bride must be at least 18 years old
iii) The Parties should be competent in regard to their mental capacity to the extent that they
are able to give valid consent for the marriage
iv) The parties should not fall under the categories of Prohibited relationship.36

5
¶1 of Moot Proposition
6
A.I.R 2009 Delhi High Court WP(C) No 748
7
¶ 1 of Moot Proposition
 (¶3) It is most humbly submitted before this Hon‘ble Court that it is a settled law that for the
solemnization of marriage under the Act, various conditions need to be fulfilled. Section 4 must
be fulfilled at the time of the solemnization of marriage.8

(¶4) The issuance of the marriage certificate by the authorities is a clear proof that all of these
conditions were present during the solemnization of marriage9

(¶5) The marriage performed under The Special Marriage Act 1954 is a civil contract and
accordingly there need be no rites or ceremonial requirements10

SUBMISSION-C

THAT ALL THE CONDITIONS MENTIONED UNDER SECTION 4 OF THE SPECIAL

MARRIAGE ACT 1954 WERE FULFILLED DURING THE SOLEMNIZATION OF THE
MARRIAGE BETWEEN SHABANA AND MUKESH.

(¶1) It is humbly submitted before the Hon‘ble Court that Shabana and Mukesh got their marriage
registered under The Special Marriage Act 1954 and in effect a marriage certificate was issued by the
authorities which implies that all the conditions mentioned under this section were present during the
solemnization of the marriage because a marriage certificate issued by the authorities would only be
issued when these officers have cross-checked each and every condition mentioned in this section.

8
Section 4, The Special Marriage Act, 1954: Conditions relating to solemnization of special marriage
9
¶ 1 of Moot Proposition
10
Place and Form of Solemnization, Registered Marriage (tax4india.com)
(¶2) The issuance of certificates from the Marriage Officer as mentioned under section 13 of The
Special Marriage Act 195411 clearly specifies that the marriage certificate would be issued only after
the marriage has been solemnized and Section 13 (2) specifies that
„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 a marriage under this Act has
been solemnized and that all formalities respecting the signatures of witnesses have been complied
with.‟12

(¶3) The fact that Mukesh while filing the divorce petition in the Trial Court of France on the ground
of marriage being broken down irretrievably13 is in itself an evidence that Mukesh also believed in
the validity of the marriage between Shabana and Mukesh under The Special Marriage Act of 1954 14.

SUBMISSION-D

THE IMPERATIVES UNDER ARTICLE 21 AND ARTICLE 25(1) OF THE INDIAN

CONSTITUTION RENDER THE CONSUMMATION OF MARRIAGE AMONG THE
PARTIES AS VALID IN THE PRESENT CASE

It is humbly submitted before the Hon‘ble Court that Shabana is and Mukesh was the citizen of
the Republic of India at the time of their marriage and hence were governed by the Constitution
Of India 1950 and therefore were also protected by the Article 21 and Article 25 of the Indian
constitution which provides them with the rights of freedom of personal liberty and the right to
profess. Therefore both of them exercised their right to personal liberty and married the person of
their choice.

11
Kumud Desai, Indian law Of Marriage and diavorce, S. 13: Part 1 Chapter 2 of The Special Marriage Act 1954
12
Kumud Desai, Indian law Of Marriage and diavorce, S. 13: Part 1 Chapter 2 of The Special Marriage Act ,
13
¶ 5 of Moot Proposition.
14
¶ 1 of Moot Proposition
(¶2) It is humbly submitted before this Hon‘ble Court that the Article 25(1) of the Indian
Constitution guarantees to every person, not only the citizens of India, ―the right to
profess, practice and propagate religion freely‖. The consummation of marriage according to the
Special Marriage Act 1954 is an act in exercise of personal liberty of an individual and hence the
state cannot interfere in deciding the matter relating to it as it involves belief and faith of the
petitioner. Article 25 seeks to protect religion and religious practices from state interference as
India has no preferred state religion, all religions are treated alike and enjoy equal constitutional
protection without any favour or discrimination. In M. Ismail Faruqui v. Union of India,15 it
was held that the State guarantees freedom in matters of faith emphasizing that there is no
religion of the State itself.

(¶10) Further, the Supreme Court has also stated in the case of Commr. HRE Madras v. Sri
Lakshmindra16that the guarantee under the Constitution of India protects the acts done in the
pursuance of the religion. It has also been laid down that a person can exhibit his belief in such
outwardly act as he thinks proper.

15
A.I.R 1995 S.C 605
16
A.I.R 1954 S.C 282
 ISSUE 2: WHETHER NON-CONTEST BY THE WIFE OF DIVORCE PETITION
FILED BY THE HUSBAND IN A FOREIGN COURT IMPLIES THAT SHE HAD
CONCEDED TO THE JURISDICTION OF THE FOREIGN COURT?

It is most humbly submitted before this Hon‘ble Court that the ex-parte divorce granted by the
Trial Court of France on the ground of irretrievably broken down of marriage is no ground of
divorce under The Special Marriage Act 1956 besides this no valid ground mentioned in the
divorce petition by the respondent. Further, the counsel would like to contend that the Trial Court
of France had no jurisdiction to deliver judgement under Sec.13 of Civil Procedure Code and
neither respondent nor petitioner was the resident of France.

SUBMISSION-A

THAT RESIDENT PROOF IS REQUIRED FOR THE FILING OF PETITION IN

FOREIGN COURT.

(¶1) It is most humbly submitted before this Hon‘ble Court that first essential for the filing of
petition in the court that the parties should be the resident of the jurisdiction of same court, while
in the present case the petitioner and respondent both were the resident of Hamirpur.17

(¶2) In Smt. Satya v. Teja Singh18, residence does not mean a temporary residence for the
purpose of obtaining a divorce but habitual residence or residence which is intended to be
permanent for future as well. Supreme Court pointed out: there must be the factum and there
must be the animus, the intention must be a present intention to reside forever in the country
where the residence has been taken up.19 In the case of Gurdayal Singh v. Rajah of Faridkot, ex-
parte decree passed against the respondent by the foreign court when he neither resided at
Faridkot nor was he domiciled there, the decree passed by the Faridkot court in was an absolute
nullity and outside the jurisdiction.20

17
¶1 of the Moot Proposition.
18
(1975) 2 S.C.R.1971
19
Central Bank of India Ltd. v. Ram Narain, AIR 1955 SC 36; Gaur Gopal Roy v. Sipra Roy, AIR 978 Cal. 163;
Moina Khosla v. Amardeep Khosla, A.I.R 1986 Del. 399.
20
http://www.legalservicesindia.com/articles/fore.html
In the present case the parties are the resident of India. The plaintiff never refused to settle with
defendant in France. She also wrote letter to join Mukesh in France.21Therefore the Foreign
Court has no jurisdiction to deliver judgement.

SUBMISSION-B

THAT FOREIGN JUDGEMENT IS NOT CONCLUSIVE AS THE PARTIES WERE NOT

RESIDENTS OF FRANCE.

(¶3) It is most humbly submitted before this Hon‘ble Court that the petition can be presented
only before the District Court or High Court for the dissolution of marriage by the husband.22 In
the present case the petition filed by the husband in the Trial Court of France23, which was
outside the jurisdiction of the Court and does not lie under the Sec.13 of Civil Procedure Code. In
Y. Narasimha Rao v. Y Venkata Lakshmi24, it was held that ―the jurisdiction assumed by the
Foreign Court as well as the grounds on which the relief is granted must be in accordance with
the matrimonial law under which the parties are married‖

(¶4) Sec. 19 of Civil Procedure Code Court to which petition shall be presented - Every
petition under this Act shall be presented to the district court within the local limits of whose
ordinary original civil jurisdiction—

(i) the marriage was solemnised, or

(ii) the respondent, at the time of the 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 the
petition, or

the petitioner is residing at the time of the 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 or more by those persons who would
naturally have heard of him if he were alive.
21

22
¶3 of the Moot Proposition. Sec.
10 Indian Divorce Act, 1869 23 ¶3
of the Moot Proposition.
24
(1991) 3 SCC 451 : 1991 SCC (Cri) 626
(¶5) The decree in the present case dissolving the marriage passed by the foreign court is
without jurisdiction according to the Special Marriage Act as neither the marriage was celebrated
nor the parties last resided together nor the respondent resided within the jurisdiction of "that
Court. The decree was also held to be passed on a ground which was not available under the
Special Marriage Act which was applicable to the marriage. Hence the decision that has been
passed, which indeed is a violation of the principles of natural justice and would come within the
exceptions envisaged by clause (b) and (d) of Sec. 13 CPC.

(¶6) Sec. 13 of C.P.C When foreign judgement not conclusive- A foreign judgement 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 [India] in cases in which such law is
applicable;
(d) where the proceedings in which the judgement 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 [India].
 SUBMISSION-C

THAT FRANCE IS NOT THE RECIPROCATING TERRITORY

(¶7) It is most humbly submitted before this Hon‘ble Court that the decree granted by the France
Court can‘t be executed in India as if it had been passed by the District Court because it is not the
reciprocating territory of India.
"Reciprocating Territory" is defined in explanation 1 to Sec. 44A of Civil Procedure Code as:
"Any country or territory outside India which the Central Government may, by notification in the
Official Gazette, declare as a reciprocating territory." The List of Reciprocating Territories
under the Civil Laws in India are United Kingdom, Singapore, Bangladesh, UAE, Malaysia,

Trinidad & Tobago, New Zealand, the Cook Islands (including Niue) and the Trust Territories of
Western Samoa, Hong Kong, Papua and New Guinea, Fiji, Aden.

(¶8) Similarly in the case of Y. Narasimha Rao And Ors v. Y. Venkata Lakshmi And Anr 25, the
appellant and his wife were last resided together in the jurisdiction of the court of New Orleans,
but he filed petition for the dissolution of marriage in the Circuit Court St. Louis Country,
Missouri, USA. Court held that the decree dissolving the marriage passed by the foreign court is
without jurisdiction according to the Hindu Marriage Act neither the marriage was celebrated nor
the parties last resided together nor respondent resided within the jurisdiction of that Court.

25
(1991) 3 SCC 451 : (1991) 3 SCC (CRI) 626
 SUBMISSION-D

THAT IRRETRIEVABLY BROKEN DOWN OF MARRIAGE IS NO GROUND FOR

DISSOLUTION OF MARRIAGE UNDER THE LAW IN THE CASE OF MUKESH AND
SHABANA.

(¶11) It is most humbly submitted before this Hon‘ble Court that irretrievably broken down of
marriage is no ground for the dissolution of marriage under The Special Marriage Act, 1954. Sec.
27 of The Special Marriage Act, 1954 lays down nine fault grounds of divorce such as adultery,
desertion, cruelty, insanity, venereal disease, leprosy, venereal diseases, conversion and
renunciation of world which are available for both husband and wife. Marriage cannot be
dissolved on a ground not specified in the Act. Krishna v. Som Nath26, divorce on the basis of
irretrievable breakdown is not enough itself.

(¶12) In Gurbax Singh v. Harminder Kaur27, held that ―we cannot persuade ourselves to grant
a decree of divorce, on the ground of irretrievable breakdown of marriage for the simple reason
that the breakdown is only from the side of the husband as the wife consistently maintained that
she was intensely concerned with her future relationship with her husband and that her greatest
and paramount desire was to rejoin her husband and to live with him normally in a matrimonial
relationship, once again. Since the respondent does not consent to the severance of matrimonial
ties, it may not be possible for us to accede the prayer.‖ Court has made it clear that to declare a
marriage as irretrievably broken, mere living separate is not sufficient; there should be break
down from both the sides.28

(¶13) No divorce can be granted on the ground of irretrievable breakdown of marriage if the
party seeking divorce on this ground is himself or herself at fault. The decree of divorce on the
ground that the marriage has irretrievably broken down can be granted in those cases where both

26
(1996) DMC 667 (P&H)
27
(2010) 14 SCC 301
28
Darshan Gupta v. Radhika Gupta, (2013) 9 SCC 1 : (2013) 4 SCC (Civ) 130
the parties have leveled such allegations against each other that the marriage appears to be
practically dead and the parties cannot live together.29

(¶14) In Geeta Mullick v. Brojo Gopal Mullick30, the Calcutta High Court held: ―In
our considered opinion, the marriage between the parties cannot be dissolved by the trial Court or
even by the High Court only on the ground of marriage having been irretrievably broken down,
in the absence of one or more grounds as contemplated under Sec. 28(A) of the The Special
Marriage Act, 1954.‖

(¶15) Sec. 13(f) of Civil Procedure Code thereof provides that the foreign judgement is not
conclusive where it sustains a claim founded on a breach of any law in force in India. Therefore
the decree passed by the Trial Court of France is against the law of India because no law
provides divorce merely on the ground of the irretrievably broken down of marriage.

SUBMISSION-E

THAT NON-CONTEST BY THE WIFE DOES NOT IMPLIES THAT SHE HAD
CONCEDED TO THE JURISDICTION OF THE FOREIGN COURT.

(¶16) It is most humbly submitted before this Hon‘ble Court that Shabana came back to
Hamirpur (India) in February 2016 along with her children31 and could not contest the
proceedings because she had no means to go to France. Meanwhile the trial court of France
delivered ex-parte judgement in favour of respondent.32

33
(¶17) Harpreet Singh Sekhon v. Rajwant Kaur , respondent had not submitted to the
jurisdiction of the court or consented to its passing, it cannot be recognized by the courts in this
country and is therefore, unenforceable. The non-contest by the petitioner does not implies that
she had conceded to the jurisdiction of the Foreign Court because there is a valid reason which is
the sufficient cause i.e. no means to go to France.
29
LAW COMMISSION OF INDIA (REPORT NO. 217), p13
30
Mayne‘s Treatise on Hindu Law & Usage pg 293 Revised by Justice Ranganath Misra (16th ed. New Delhi:
Bharat Law House, 2008),
31
¶2 of the Moot Proposition.
32
¶4 of the Moot Proposition.
33
2013 SCC OnLine P&H 4357 : ILR (2014) 1 P&H 657 : ILR (2014) 1 P&H 876
 SUBMISSION-F

THAT SUFFICIENT CAUSE IS THERE FOR NON-APPEARANCE BEFORE THE

FOREIGN COURT.

(¶18) It is most humbly submitted before this Hon‘ble Court that according to Order IX Rule 13,
CPC "Setting Aside decree ex parte against defendant : In any case in which a decree is passed
ex parte against a defendant, he may apply to the Court by which the decree was passed for an
order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he
was prevented by any sufficient cause from appearing 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 to costs,
payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the
suit:

(¶19) It was stated by the SC in the case of G.P. Srivastava v. R.K. Raizada34, that ―if sufficient
cause is made out for non- appearance of the defendant on the date fixed for hearing when ex
parte proceedings initiated against him, he cannot be penalized for his previous negligence which
had been overlooked and thereby condoned earlier.‖ Court expect for good reasons, however, a
court will not direct the party to appear in person.35 Setting aside decree ex parte against
defendant can be granted when the he proves the sufficient cause for non-appearance before the
court.36

(¶20) In the present case the petitioner could not contest the proceedings because she having no
means to go to the court and was not in a position to remain present before the court at France.
Attending the proceedings in France requires money to stay there and expenses of the court
which was hard for the petitioner to arrange as she had been living apart from her husband
unintentionally for the period of 1 year and 4 months before the proceedings in Trial Court of
France.

34
(2000) 3 SCC 54 at p. 57: A.I.R 2000 SC 1221 at p. 1222
35
Sarla Rani v. Bhushanlal, A.I.R 1976 J&K 12; Pandu v. Hari, A.I.R 1936 Nag. 85
36
Sunanda v. Gundopant 1961 ILR Bom 296, A.I.R 1961 Bom 225.
ISSUE 3. WHETHER THE PRINCIPLE OF RES-JUDICATA UNDER SEC. 11 OF THE
CIVIL PROCEDURE CODE, 1908 IS APPLICABLE TO THE PROCEEDINGS BEING
INITIATED IN DISTRICT COURT, HAMIRPUR?

(¶1) It is most humbly submitted this Hon‘ble court that the proceeding initiated in the Jalandhar
District Court by the aggrieved petitioner is not bound by the principle of Res judiacata under
Sec. 11 of the CPC, 1908. In December 2018, Shabana filed a petition under Sec. 22 of the The
Special Marriage Act, 1954 for Restitution of Conjugal Rights in the District Court, Hamirpur.
Whenever one spouse leaves the other spouse without giving any reasonable ground, the The
Special Marriage Act, 1954 gives the remedy in the form of Sec. 22 under the Restitution of
Conjugal Rights. The Sec. 22 of the The Special Marriage Act reads that when either the husband
or the wife has, without reasonable excuse, withdrawn from the society of the other, the
aggrieved party may apply for Restitution of Conjugal Rights.

SUBMISSION-A

THAT IN THE PRESENT CASE, THE ESSENTIALS OF RESTITUTION OF CONJUGAL

RIGHTS ARE FULFILLED.

(¶2) It is most humbly submitted before this Hon‘ble court that the aggrieved party needs to file a
petition to the district court and on being satisfied of the truth of the statements made in such
petition and that there is no legal ground why the application should not be granted, the judge
may decree Restitution of Conjugal Rights in his favour.

(¶3) There are three essential conditions that need to be fulfilled for the application of Sec. 22 of
The Special Marriage Act, that is about Restitution of Conjugal Rights, which is why Shabana
initiated the proceedings in this district court of Jalandhar-
Firstly, one party must have withdrawn from the society of the other;
Secondly, the withdrawal must be without any reasonable reason,
And thirdly, the aggrieved party applies for the Restitution of Conjugal Rights.
(¶4) Once these conditions are fulfilled, the district court may decree of Restitution of Conjugal
Rights to bring about cohabitation between the estranged parties. If the aggrieved party is unable
to convince the district court and it founds that the petitioner is guilty then the decree of
Restitution of Conjugal Rights is not granted. An added advantage from this is that if the parties
are not following the decree for cohabitation after the passing of the decree, continuously for one
year, it becomes a ground for divorce under Sec. 22 read with section 27.

(¶5) There are certain reasonable grounds on which petition for Restitution of Conjugal Rights
can be rejected-

First, if the Respondent has a ground on which he or she can claim any matrimonial relief;
Second, if the petitioner is guilty of any matrimonial misconduct;
Third, if the petitioner is guilty of such act, omission or conduct which makes it impossible
for the Respondent to live with him.

(¶6) That none of these grounds for rejection of Restitution of Conjugal Rights can be figured in
this matter. At not one instance the aggrieved petitioners can be tagged for matrimonial
misconduct. In fact it is Shabana, the aggrieved wife who is trying every bit to save this marriage
and not be deserted by the Respondent, who had clearly told Shabana to get away from his life
and even had developed an extra marital affair with a lady named Emile.37

(¶7) Burden of proof under Sec.22of The Special Marriage Act operates at two levels. Firstly,
burden of proof is on the aggrieved/petitioner who needs to prove that the respondent has
withdrawn from his society. Once that burden is discharged by the petitioner, it falls on the
respondent to prove that there exists a reasonable excuse for the withdrawal.

(¶8) In March 2016, the respondent went to France. Thereafter he asked Shabana not to visit
France as he was interested in getting their marriage dissolved. After moving to France, Mukesh
severed all his contacts with Shabana. It clearly establishes the fact that the respondent was
willing to desert his wife and had withdrawn Shabana from his life. It was upon the respondent to
prove that he withdrew Shabana from his life because he had reasonable

37
¶3 of the Moot Proposition.
and acceptable reasons for doing so. Indulging himself in an extra-marital affair with Emile
shows how low the respondent thinks about the social institution of marriage and has apparently
insulted this divine sacrament. Respondent has failed to suffice reasonable excuse of why
Restitution of Conjugal Rights mentioned under Sec. 22 of The Special Marriage Act should not
apply on him.

SUBMISSION-B

THAT SEC. 11 OF THE CPC, 1908 WILL NOT OPERATE AS A BAR TO THE
PROCEEDINING INITIATED BY SHABANA.
(¶9) It is most humbly submitted this Hon‘ble court that Sec. 11 of the Civil Procedure Code,
‗Res Judicata‘ aims to prevent multiplicity of the proceedings and accords finality to an issue,
which directly and substantially had arisen in the former suit between the same parties or their
privies, decided and became final so that parties are not vexed twice over; vexatious litigation
would be put to an end and the valuable time of the court is saved.

(¶10) That to constitute a bar of Res Judicata, viz.,

(1) the matter must be directly and substantially in issue in the two suits;
(2) the prior suit must have been between the same parties or persons claiming under them;
(3) such parties must have litigated under the same title in the former suit;
subject to the provisions contained in Explanation VIII, added by the Amendment Act, 1976, the
court which determined the earlier suit must be competent to try the later suit or the suit in
which such issue is subsequently raised, the France Court was not competent;

(¶11) The question directly and substantially is in issue in subsequent suit should have been
heard and finally decided in earlier suit. Decree was void ab initio, therefore here lies no scope
for application of Res Judicata on the proceeding initiated by Shabana in the district court of
Hamirpur. As per Sec. 44-A, Civil Procedure Code, the decree from a foreign court may be
executed in India as if it had been passed by the District Court. ―Reciprocating territory‖ means
any country or territory outside India which the Central Government may, by notification in the
Official Gazette, declare to be a reciprocating territory for the purposes of this Sec. France does
not lie in the list and is not the reciprocating territory.

(¶12) The important words in the provision of Sec. 11, Civil Procedure Code are- “has been
heard and finally decided”. Arguendo, even if we assume that there existed the competency of
France Court, Shabana, the aggrieved petitioner could never be heard before the final
adjudication arrived, wherein the trial court of France granted a divorce decree in favour of
Mukesh because Shabana could not contest these proceedings, she having no means to go to
France. The bar of Res Judicata applies only if the matter directly and substantially in issue in the
former suit has been heard and finally decided by a court competent to try such suit. That as per
the abovementioned facts the application of the judicial mind was never applied and thus the
adjudication cannot be misconstrued as a final one.

(¶13) The rule of constructive Res Judicata would also not apply to a point which the court may
or may not decide in its discretion. In order that the rule of ‗might and ought‘ may apply it is not
only necessary that the defendant could have raised defence in reply to the former suit, but it
must also be shown that he was bound to do so. The petitioner in this matter was not bound by
any obligation to respond to the incompetent court.

(¶14) The court which has no jurisdiction in law cannot be conferred with jurisdiction by
applying principles of Res Judicata. It is well settled that there can be no estoppel on a pure
question of law and in this case the question of jurisdiction is a pure question of law. It was
pointed out by Lord Russel of Killowen in Upendra Nath v. Lall38, that there could be Res
Judicata in regard to the question of lack of jurisdiction of the civil court to try a matter but a
court which declines jurisdiction cannot bind the parties by the reasons for declining jurisdiction;
such reasons are not decision, and are certainly not decision by a court of competent jurisdiction.
In this matter, the petitioner submits that the foreign court did not have the jurisdiction to try the
divorce issue between Shabana and the respondent, and felt short of the competency.

38
A.I.R 1940 P.C. 222
 SUBMISSION-C

THAT JUDGEMENT OF FRANCE TRIAL COURT IS BEYOND MERIT.

(¶15) The judgement of the Hon'ble Supreme Court in case of Sondur Gopal v. Sondur Rajini39
in support of the submission that even if the defendant has obtained the domicile in France, the
divorce proceedings filed by the defendant before the Trial Court of France is not maintainable in
view of the fact that the plaintiff and the defendant were admittedly married in Hamirpur and
were governed by the provisions of The Special Marriage Act, 1954.

(¶16) That decree of divorce by France Trial Court lacks merit of law. That the decree of divorce
of the France trial court has to be tested on the anvil of Sec. 13 Civil Procedure Code which
provides as to when a foreign judgement shall not be conclusive. In so far the present case is
concerned, Sec.13 (b) and Sec.13 (c) Civil Procedure Code are attracted to the facts of the
present case, viz., (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 India in cases in which such law is applicable.

(¶17) That France trial court had passed decree of divorce on the ground of irretrievable breaking
of marriage. Under The Special Marriage Act, 1954, divorce has been dealt under Sec 27 and
‗irretrievable breaking of marriage‘ is no ground under that provision. So not only the court was
incompetent but the adjudication itself was beyond Indian laws.

(¶17) That in the matter Harpreet Singh Sekhon v. Rajwant Kaur40, the husband obtained decree
of Divorce dated 23.05.2005 passed by Circuit Court of Cook County, USA. Wife filed suit for
declaring the said Divorce Decree to be illegal etc. before District Judge, Family Court,
Faridabad. Husband contested the suit through his father and GPA. District Judge declared the
Divorce Decree to be null and void. Appeal filed-held that judgement of the Court of Cook
County, Illinois does not give any reason in support of the decision which indeed is a violation of
39
(2013) 7 SCC 426
40
(2013) SCC OnLine P&H 4357
 the principles of natural justice and would come within the exceptions envisaged by clause (b)
and (d) of Sec. 13 Civil Procedure Code — Irretrievable breakdown of marriage is not one of the
grounds recognised by the Special Marriage Act for the dissolution of marriage without mutual
consent under section 27 -the decree of divorce passed by the foreign court on a ground
unavailable under the Special Marriage Act unsustainable, moreover the judgement was an ex
parte judgement and it failed to comply with principles of natural justice.

SUBMISSION-D

THAT PETITIONER BY ACCEPTING THE MAINTENANCE DID NOT CONSENT TO

THE DECREE OF THE FRANCE TRIAL COURT.

(¶18) It is most humbly submitted this Hon‘ble court that despite the acceptance of maintenance,
Res Judicata doesn‘t exist. The object of the maintenance proceedings is not to punish a person
for his past neglect, but to prevent vagrancy by compelling those who can provide support to
those who are unable to support themselves and who have a moral claim to support.

(¶19) That Sec.125 Criminal Procedure Code -The phrase ―unable to maintain herself‘
would mean that means available to the deserted wife while she was living with her husband and
would not take within itself the efforts made by the wife after desertion to survive somehow.
Maintenance and divorce are different things altogether, while she is wife, she can claim it. The
grounds for refusal of maintenance to wife can be only when clauses 4 and 5 of Criminal
Procedure Code come into play, but in this matter it is not at all so.

(¶20) That every person is under an obligation to maintain his wife, his minor sons, unmarried
daughters and aged Parents as per the law in Criminal Procedure code 1973 section 125. The
obligation is personal. It arises from the very nature of the relationship and exists whether he
possesses any property or not.

(¶21) That husband cannot ask his wife that he does not like her company, but she can or should
stay with other members of the family in matrimonial home. Such an attitude is cruelty in itself
on the part of the husband; Yudhishter Singh v. Sarita41

41
A.I.R 2002 Raj 382.
ISSUE 4: WHETHER RELATIONSHIP OF EMILE AND MUKESH IS LEGAL?

It is most humbly submitted to this Hon‘ble Court that the relationship between Mukesh and
Emile is not legal in the eyes of the petitioner. It is to bring in the notice of this Hon‘ble of Court
that Mukesh is not a permanent resident of France42 and hence he cannot file a petition in the
Trial Court of France also that the Trial Court of France has no jurisdiction in this case between
Shabana and Mukesh as it is not a reciprocating territory mentioned in Section 44 A if the Code
of Civil Procedure of 1908 and hence not a competent court in the eyes of this Hon‘ble Court.

Therefore the decree of diavorce issued to Mukesh by Trial Court of France is not valid in the
eyes of law and hence Mukesh is not yet Single and therefore the Civil Solidarity Pact between
Mukesh and Emile gets dissolved automatically and therefore this relationship between them is
invalid.

SUBMISSION-A
THAT CIVIL SOLIIDARITY PACT GETS DISSOLVED WHEN ONE OF THE PARTNER IS
MARRIED.
(¶1)It is submitted most humbly in this Hon‘ble Court that as per the French laws regarding the Civil
Solidarity Pact as mentioned in the Grade des Sceaux (Minster of Justice) as the law (Loi n99-994 du
15novembre 1999 relativeau pacte civil de solidarite) politely states that it is a contract between two
adults to organize their cohabitation and gets dissolved automatically when one of the parties to the
pact gets marry or becomes dead. In the present situation , since it has been stated in the previous
issues that Trial Court of France was an incompetent Court to have jurisdiction and issue a decree of
divorce to Mukesh.and with this view Mukesh is still bound in wedlock with Shabana and is not
entitled to enter into the civil solidarity pact with Emile as this pact gets itself dissolved when one of
the partner becomes dead or gets married and since Mukesh is married as per The Special Marriage
Act of 1954 he cannot enter into the civil solidarity pact.

42
France: Law relating to civil solidarity pact ( Law No- 99-994) Art 515-I
(¶2)In Y. Narasimha Rao v. Y Venkata Lakshmi43, it was held that ―the jurisdiction assumed by the Foreign
Court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law
under which the parties are married‖
(¶3)Under the light of this case Mukesh can only obtain divorce from Section 27 of The Special Marriage Act
1954 and that the marriage between Shabana and Mukesh cannot be dissolved by the Trial Court of France
and this provides the provisions for the dissolution of The Civil Solidarity Pact in view of Mukesh not being
single.

SUBMISSION-B
THAT CIVIL SOLIDARITY PACT BETWEEN EMILE AND MUKESH AMOUNTS TO
ADULTRY, HENCE BECOMES A GROUND FOR DIAVORCE BY SHABANA
UNDER SECTION 27 OF THE SPECIAL MARRIAGE ACT,1954

(¶4)It is humbly submitted before the Hon‘ble Court that section 27(1) of the Special Marriage Act
which deals with the grounds for obtaining a divorce under the act. It‘s (a) clause describes presents
adultery as a ground for divorce petition filed by either the husband or the wife. It states as follows:-

―Subject to the provisions of this act and to the rules made thereunder a petition for divorce may be
presented to the District Court either by the husband or the wife on the ground that the respondent –
(a) has , after the solemnization of the marriage had voluntary sexual intercourse with any
person other than his or her spouse44;

Therefore in the present situation where Mukesh has left Shabana and has entered into a Civil
Solidarity Pact45 while still being wedlocked to Shabana by virtue of the statement of jurisdiction by

43
(1991) 3 SCC 451 : 1991 SCC (CRI) 626
44
Section 27(1) (a) of The Special Marriage Act 1954 Lexis-Nexis Ghziabad 2018
45
¶6 of Moot Proposition
(¶5)The Supreme court in Y. Narasimha Rao v. Y Venkata Lakshmi46,that any relief granted to the person
by the foreign court must be in accordance with the matrimonial law under which the parties have been
married
which (herein) is the Special Marriage Act of 1954 and therefore Mukesh indulging in a civil solidarity pact
with Emile and without being Single amounts to adultery and hence provides a ground for the Hon‘ble Court
to regard their relationship as not legal.

46
(1991) 3 SCC 451 : 1991 SCC (CRI) 626
 ISSUE 5: WHETHER THE PETITION OF RESTITUTION OF CONJUGAL RIGHTS
BY SHABANA, IS MAINTAINABLE IN THE EYES OF LAW?

It is most humbly submitted to this Hon‘ble Court that after marriage, the husband is entitled to
the society of his wife and the wife to the society of her husband. A cause of action, therefore,
arises when one of the parties to the marriage withdraws from the society of the other. Section 22
of the The Special Marriage Act, 1954,47deals with the subject of the restitution of conjugal
rights. The foundation of the right is the fundamental rule of matrimonial law that one spouse is
entitled to society and comfort–consortium–of the other spouse, also, to promote stability in
marriage and where either spouse has abandoned or withdrawn from the society of the other
without reasonable excuse or just cause the court should grant a decree for restitution.

In the present case, the restitution of conjugal rights arise and should be granted to Shabana so as
to resume her married life with Mukesh and save her marriage; also there was a withdrawal of
the conjugal relationship on the part of Mukesh; as well as there is no reasonable excuse or
reasonable cause adduced by Mukesh so as to justify the withdrawal from conjugal relationship
and the burden of proof solely lies on Mukesh as he has unreasonably withdrawn from Shabana‘s
society and there exists no cogent evidence to prove otherwise.

SUBMISSION-A

THAT IN THE PRESENT CASE THE RESTITUTION OF CONJUGAL RIGHTS ARISE.

(¶1) It is most humbly submitted to this Hon‘ble Court that in the present case, the marriage
among the parties was solemnized in the year 2011 and both the husband and wife (herein,
Shabana and Mukesh) stayed together till the year 2016 and then Mukesh left Shabana back in
India48

47
Section – 22 The Special Marriage Act, 1954: Restitution of conjugal rights.- When either the husband or the wife
has, without reasonable excuse, withdrawn from the society of the 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 thestatements made in such
petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal
rights accordingly.
48
¶ 4 of Moot Proposition
and on her insistence to cohabit, Shabana was denied expressly by a letter.49It can be very well
established that Mukesh, has withdrawn from the society of Shabana without giving a proper
reason and filing for the divorce on the ground of irretrievable breakdown. Thus under the
Section 22 of the Act, it can be established:

● That Mukesh, has, without reasonable excuse, withdrawn from the society of Shabana.
● That petitioner has enough evidence in the form of Mukesh‘s letter of refusal to cohabit
and filing divorce on insufficient grounds to adduce the truth of statements in the petition.
● There is no legal ground available to Mukesh, as to why the application should not be
granted50

(¶2) In the interest of the institution of marriage, some safeguard should be provided against the
hasty separation51 as in this case, so as to effectuate the intention of Section 22 to provide an
opportunity for re-approachment and reconciliation between the two spouses.52 The counsel
humbly contends before this Hon‘ble Court to put into motion a compromise between the
spouses; for this very cause, Shabana, has by the way of petition, reached out to the court to
institute proceedings for directing Mukesh to give back the conjugal society which has been
unreasonably withdrawn by him.

(¶3) In Sushila Bai v. Prem Narayan53 the M.P. High Court held that in order to sustain a
petition for restitution of conjugal rights, it is necessary to establish that the respondent has
withdrawn from the society of the petitioner. By the virtue of this submission, it is already
apparent that Mukesh has withdrawn from the conjugal society by moving to France in the year
2016 and subsequently filing for divorce.54 Now Shabana, desiring the company of her spouse,
Mukesh, is asking this Hon‘ble Court for the assistance to restore him back so as to lead a
conjugal life.

49
¶4 of the Moot Proposition.
50
A.M. Bhattacharjee, Matrimonial Laws and the Constitution, 17, (Eastern Law House, Calcutta, 1996).
51
Paras Diwan, Family Law, 113, (Allahabad Law Agency, Faridabad, 1998).
52
Ibid.
53
A.I.R. 1976 M.P. 225.
54
¶5 of the Moot Proposition
It is needless to say, that the petitioner is the aggrieved party here who desires to live with her
spouse.55

SUBMISSION-B

THAT THERE IS A WITHDRAWAL OF CONJUGAL RELATIONSHIP ON THE PART OF

MUKESH.

(¶4) It is humbly submitted before this Hon‘ble Court that married persons are bound to live
together and if either of them withdraws from the society of the other without lawful excuse, the
Court may compel the parties to return to cohabitation.56 Although, the reasons of the withdrawal
must be grave and weighty. According to the case of Shyamlal v. Saraswati,57 it has been held
that any act of commission or omission amounting to reasonable cause must be something grave
and weighty or grave and convincing. The ‗withdrawal‘ involves a mental process besides
physical separation, as it is the mental condition of the spouse which also at stake when either of
the spouse withdraws from the society of the other without reasonable excuse.

(¶5) The words, „withdrawal from the society of the other‟ means withdrawing by one spouse
not from the company of the other but from the conjugal relationship. In short, it is withdrawal
from the totality of conjugal relationship, such as refusal to stay together, refusal to give
company and comfort, etc.58In withdrawal from society, there is an element of desertion;
sometimes it can be less than desertion, it is a total repudiation of cohabitation.59 The basis of the
petition filed by Shabana is that there was a lawful wedlock between the parties but Mukesh is
not cohabitating and has refused to cohabit with her. As Mukesh has withdrawn totally from
cohabitation, the cause of action has arisen to Shabana.60 It has also been established in the case
of Venugopal v. Laxmi61that the consummation of marriage is not essential to file for the
restitution of the

55
R.K. Agarwal, Hindu Law, 64, (25 th
edn.,Central Law Agency, Allahabad, 2016).
56
57
Weldon v. Weldon, (1883) 99 P.D. 52.
58
1967 M.P. 204.
Powell v. Powell 92 L.J.P. 6. rd
59 edn., Allahabad Law Agency, Faridabad, 2016).
60
Dr. Paras Diwan, Modern Hindu Law, 191 (23
61
Smith v. Smith, (1939) 4 All E.R. 533; Wilkies v. Wilkies, (1943) 1 All E.R. 433.
1936 Mad. 288.
conjugal rights, so even if the marriage between Shabana and Mukesh is not rendered as a valid
marriage, the restitution is to be granted.

(¶6)It is often quoted that “a wife‟s first duty to her husband is to submit herself obediently to
his authority and remain under his roof and protection.”62Also, according to the ordinary custom
of the Hindu society, as their marriage was according to the Hindu ceremonies and customs, the
wife is expected to perform the marital obligation at her husband‘s residence it is the duty of the
husband to maintain his wife.63 It is the obligation of the wife to stay under the roof of the
husband and the protection of her husband.64 Also, the word ‗society‘ in Section 22 has the same
meaning as ‗cohabitation‘ which is living together as husband and wife and fulfilling the
matrimonial duties.

SUBMISSION-C

THAT THERE IS NO REASONABLE EXCUSE OR REASONABLE CAUSE ADDUCED BY

MUKESH FOR THE WITHDRAWAL OF CONJUGAL RELATIONSHIP.

(¶7) It is humbly submitted before this Hon‘ble Court that there was no reasonable or just excuse
while Mukesh left Shabana and when the ‗reasonable or just excuse‘ is assessed in the eyes of
law it is the conduct of the spouse which for one reason or the another falls short of cruelty or
any other matrimonial offence justifying the withdrawal from the society depending upon
whether the conduct complained is of a grave or weighty character or not.65 It must, in all
probabilities, involve an enquiry into the facts. In Pramilabala v. Rabindranath,66it was held
that when no fault is found on the part of either of the spouses, they cannot be rendered liable for
unreasonable withdrawal from the society of either of them.

(¶8) It will amount to reasonable excuse or reasonable cause when:

● There exists a ground on which, the respondent can claim any matrimonial relief.67

61
Sir Dinshaw Fardunji Mulla, Mulla Hindu Law (21stedn., LexisNexis, Gurgaon, 2014).
62
Mulla, Hindu Law, S. 555.
63
Gaya v. Bhagwati, 1966 M.P. 212.
64
Ramesh Chandra v. Prem Latha, A.I.R. 1979 M.P. 15.
65
A.I.R. 1977 Orissa 132; Mirchulal v. Smt. Devi Bai
66
Deep Kahar, 1962 Punj. 183; Surinder v. Gurdeep, 1973 P & H 134.
 ● If the petitioner is guilty of any matrimonial misconduct, not amounting to ground for a
matrimonial relief, yet sufficiently weighty and grave.
● If the petitioner is guilty of such act, omission or conduct which makes it impossible for
the respondent to live with him. The reason here should also be grave and weighty.

In a long line of English cases like Russel v. Russel66 and Kempt v. Kempt,67it has been observed
that persistent undue familiarity with the person of opposite sex can be a reasonable excuse but
when this undue familiarity changes and takes the shape of an extra-marital affair, the
repercussions are troublesome to either of the spouse who does so. In the present case, where in
the year 2016, Mukesh went back to France and left Shabana in Hamirpur and had an extra-
marital affair with Emile and in the furtherance of which he filed for the divorce on insufficient
grounds68 can be taken into account which cannot amount as reasonable cause or excuse.

SUBMISSION-D

THAT THE BURDEN OF PROOF IS ON MUKESH AS HE HAS WITHDRAWN

UNREASONABLY FROM SHABANA’S SOCIETY.

(¶9) According to the facts of this case, it is crystal clear that Mukesh has withdrawn from the
conjugal relationship and consortium of Shabana without reasonable excuse, leaving back two
children born out of wedlock, in the years 2012 and 2016 respectively.69 Also, Shabana expressed
her desire to come to Mukesh by the medium of a letter when he left her back in Hamirpur and
he got involved in an extra-marital affair in France70 and subsequently after it, he filed for the
divorce on grounds of irretrievable breakdown of marriage, which do not exist at all (enumerated
in further submissions). In the light of these facts, it can be rightly said that there was
unreasonable withdrawal by Mukesh.

(¶10) Explanation to Section 22 lays down, ―Where a question arises whether there has
been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse
shall

67
(1835) Sol. Jo. 16.
68
(1953) 2 All E.R. 518.
69
¶4 of the Moot Proposition.
70
¶1of the Moot Proposition.
be on the person who has withdrawn from the society. This means two things: (i) Initial burden to
prove that the respondent has withdrawn from the society of the petitioner is on the petitioner as
laid down in the case of Bittoo v. Ramdas71and (ii) Once that burden is discharged (as in the
present case), it is for the respondent to prove that there exists a reasonable excuse for the
withdrawal as prescribed in the case of Atmaram v. Narbada72 where the explanation was
emphasized in showing that the case of respondent was such that the burden of proving the
reasonable excuse had to be there.

71
1983 All. 371; Jyothi v. Prathap, 1987 Kant. 24.
72
1980 Raj. 35
 PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly requested that this Hon‘ble Court may be pleased to adjudge and declare:

1. The marriage of Shabana and Mukesh is valid as per the provisions of the The
Special Marriage Act, 1954;
2. That the non-contest by the wife of divorce petition filed by husband in Foreign
Court does not imply that she had conceded to the jurisdiction of the Foreign Court;
3. That the principle of Res Judicata under Section 11 of the Civil Procedure Code,
1908 is not applicable to the proceedings being initiated in District Court,Hamirpur
4. That the relationship of Mukesh and Emile is not legally valid .
5. And that the petition of conjugal rights filed by Shabana under Section 22 of the
The Special Marriage Act, 1954 is maintainable in the eyes of law;

And pass any such order, other order that it deems fit in the interest of Justice, Equity and Good
Conscience.

And for this, Petitioner as in duty bound, shall humbly pray.