Shabana Vs Mukesh (Plaintiff)

1st National Moot Court Competition, 2019 (Career Point University)
CAREER POINT UNIVERSITY
1ST NATIONAL MOOT COURT COMPETITION 2019
MEMORANDUM ON BEHALF OF THE PLANTIFF
IN THE
HON’BLE SESSIONS COURTOFHAMIRPUR
IN THE MATTER OF
SHABANA………………….……………………………………………(PLAINTIFF)
VERSUS
MUKESH………………………………………………………………(DEFENDANT)
1. LIST OF ABBREVATION 3
Memorial on behalf of petitioner Page 1

2. INDEX OF AUTHORITIES 4
3. TABLE OF CASES 5-6
4. STATEMENT OF JURISDICTION 7
5. STATEMENT OF FACTS 8-9
6. STATEMENT OF ISSUES 10
7. SUMMARY OF ARGUMENTS 11-

12
8. ARGUMENTS ADVANCED 13-

33
9. PRAYER 34
TABLE OF CONTENTS
LIST OF ABBREVATIONS
AIR………………………………………..ALL INDIA REPORTER

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

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

TABLE OF CASES
 Andrahinnedigidinoghamy and anr v. Wijetunge
B
 Badri Prasad v. Dy Director of consolidation and ors.,( AIR 1978 SC 1557)
 Balveer Singh v. Harjeet Kaur,(Appeal from order no. 552 of 2015)
 Baddat and co. v. East Indian Trading Co.,(AIR 1964 SC 538)
D
 Director Cent Marine Fisheries Institutions v. A Kankar,(AIR 2009 (13) JT62)
G
 Guru Charan Behara and Ors. V. Aclikanda Bahara,( AIR 1972 Ori 38)
 Gopal Chand v. Pravin Kumari, (AIR 1952 SC 231.)
 Gurdassmann v. Mohinder Singh,(AIR 1993 P&H 92)
K
 Kirti Kumar v. Union of India,(AIR 1981 SC 1621)
 Khageshwar Naik v. Damuni Bewa, (AIR 1989 Orissa 10.)
L
 Lachman Utam Chand Kirpalani vs Meena Alias Mota
M
 Mohabbat Ali Khan v. Mohammad I brahim Khan, (AIR 1927 PC 185.)
 M/S Alcon Electronics Pvt. Ltd. V. Celem S.A. OF FOS 34320 Roujan,(2017) 2 SCC 253.
N
 Narasimha Rao v. Y. Venkata Laxmi, (1991) 3 SCC 451
 Naveen Kohli v. Neelu Kohli, (AIR 2004 A 112)
R
 Rajdei v. Lautan,( 1980 Allahabad 169.)

S
 Smt. Satya Singh v. Teja Singh, (1975 AIR 105)
 Saroja v. Chinnusamy, (AIR 2007 SC 3067)
 Shridhardey v. Kalpana Dey, ( AIR 1987 Cal 213.)
 State Of Uttar Pradesh v. Jagdish saran aggrawal,(AIR 2009 SCC 689)
 S. Nagaraj v. B.R.Vasudeva, (2010) (3) SCC 353
 Suman singh vs Sanjey Singh
U
 Union of India v. Pramod Gupta, (AIR 2005 SC 3708)
V
 Veena Kalia v. Jitendra Nath Kalia, (AIR 1996 DEL 54)
 V. Bhagat v. Mrs. Bhagat, (1994 AIR 710, 1994 SCC (1) 337)
 Veerappa v. Michael,( AIR 1963 SC 983)
 Vishnu Dutt Sharma v. Manju Sharma,( CIVIL APPEAL NO. 1330 OF 2009, SC)

STATEMENT OF JURISDICTION
It is submitted that the plaintiff has approached the Hon’ble District court of
Hamirpur has inherent jurisdiction to try , entertain and dispute of the present case
by virtue of section 31(iiia) of Special Marriage Act , 1954.
31) Court to which petition should be made- Every petition is presented under this
act shall be presented to the district court within the local limits of whose original
civil jurisdiction –
i. The marriage was solemnized; or

ii. The respondent, at the time of presentation of the petition resides; or
iii. The parties to the marriage last resided together; or
(iiia) In case the wife is the petitioner, where she is residing on the date of
presentation of petition; or
iv. The petitioner is residing at the time of presentation of the petition, in a case
where the respondent is, at that time residing outside the territories to which
this act extends, or has not been heard of as being alive for a period of seven
years by those who would naturally of heard of him if he were alive.

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

continued to pay the maintenance to plaintiff for 3 months. After that he failed to pay the
maintenance to his wife and children. Meanwhile plaintiff came to know about the ex
parte decree of divorce.
7. Then she approached the legal aid cell, Hamirpur. Cell helped plaintiff by letter to trial
court France and provided legal aid. Then warrant of arrest were issued against defendant.
She further said that the ex parte decree of divorce obtained by the husband was not
binding on her and was illegal and that she continue to be the wife of defendant, She
further asserted that as per the provisions of The Special Marriage Act, 1954, the grounds
of divorce (on the basis of adultery, cruelty and desertion) under Section 27 of the Act are
available to wife under the given set of circumstances. In fact, she is the actual victim,
who was being further victimized by the order of the France, Trial court.
8. In December 2018 the plaintiff filled a petition under Section 22 of The Special Marriage
act, 1954, Restitution of Conjugal Rights in district court, Hamirpur, defendant appeared
in the court and filled an application for dismissal of petition. He did not file any written
statement and he referred to the decree of divorce granted by trial court of the France and
said that despite of notice, plaintiff did not consent the same and by not raising any
objection she is deemed to have accepted the jurisdiction of foreign court in trying the
petition and thus making the decree nisi- absolute by the foreign court and is thus stopped
from filling the present petition (under section 11 read with Section 151 of code of civil
Procedure, 1908).

STATEMENT OF ISSUES
1. WHETHER THE MARRIAGE IS VALID BETWEEN SHABANAAND

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

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

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

CONJUGAL RIGHTS UNDER THE SPECIAL MARRIAGE ACT, 1954.

SUMMARY OF ARGUMENTS
1. Whether The Marriage Is Valid Under Special Marriage Act, 1954?
On the behalf of Shabana (plaintiff) the marriage between Shabana and Mukesh is valid
marriage. The essential condition of marriage under special marriage act is fulfilled and marriage
ceremony is performed according to Hindu rituals which is acceptable as one of the party as
Hindu.
2. Whether Non Contest By Wife Implied That She Had Conceded

ToJurisdiction Of The Foreign Court?
On behalf of Shabana (plaintiff) the foreign judgment is not conclusive in nature. It comes under
the exceptions of section 13 of CPC, 1908 so they are not binding in India or in Indian courts.
The doctrine of natural justice has been violated in the present case so the judgment is not
binding.
3. Whether The Principle Of Res Judicata Under Section 11 Of Code Of Civil
Procedure, 1908 Is Applicable To The Proceedings Be Initiated In District
Court Of Hamirpur?
On the behalf of Shabana (plaintiff) res judicata is not applicable in these proceedings initiated at
district court of Hamirpur. Here it is very clear with the help of second contention that the France
judgement is not binding on us so the principle of res judicata is not applicable in the present
case.

4. Whether Relationship of Mukesh And Emile is Legal?
On behalf of Shabana (plaintiff) relationship of Mukesh and Emile is illegal as she was unaware
of the relationship. Divorce decree granted in favour of Mukesh is also not acceptable in India so
Mukesh is performing adultery to his wife and his relationship with Emile is not legal.
5. Whether Shabana is entitled to Restitution of conjugal rights under the

special marriage act,1954?
On behalf of Shabana (plaintiff), Shabana is entitled to Restitution of Conjugal Rights as Mukesh

withdrew from the society without reasonable excuse and she was not aware of the ex parte
decree and she has not accepted it so she can claim her right under section 22 of Special marriage
act, 1954.

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

VALID AS PER THE PROVISIONS OF THE SPECIAL MARRIGE ACT,
1954?
Before proceeding the counsels of plaintiff would be desirable to take note of the definition of
the terms Hindus as given in sec.2(3) of Hindu marriage act,1955 which says :-
“The expression Hindu in any of this act shall be construed as if it included a person who, though
not a Hindu by religion is nevertheless, a person to whom this act applies by virtue of provision
contained in this section”.
Also, it need not to be said that the term Hindu includes a vaishaiva, a lingual or a follower of
Brahmo, prarthana or Arya Samaj, a Buddhist, Jain or Sikh and it just excludes Muslim,
Christian, parsi or Jew.
➢According to section 4 of the Special marriage act1, 1954 there are five conditions for the
valid marriage i.e.
Solemnization of Special marriage. A marriage may be solemnized between any

two persons under this act, if at the time of marriage the following conditions
are fulfilled, namely:
(I) neither party has a spouse living at the time of the marriage;
(ii)At the time of the marriage, neither party
(a) is incapable of giving a valid consent to it in consequence of unsoundness of

mind; or
1
The special marrige act, 1954

(b) though capable of giving a valid consent, has been suffering from mental
disorder of such a kind or to such an extent as to be unfit for marriage and the
procreation of children; or
(c) Has been subject to recurrent attacks of insanity
(iii) The bridegroom has completed the age of[twenty-one years] and the bride,
the age of[eighteen years] at the time of the marriage;
(iv) The parties are not within the degrees of prohibited relationship unless the
custom or usage governing each of them permits of a marriage between the two;
(v) The parties are not sapindas of each other, unless the custom or usage
governing each of them permits of a marriage between the two;
As, none of the parties had claimed that any of these conditions has not been
fulfilled. So, the conditions for a valid marriage are fulfilled.
➢A number of judicial pronouncements have been made on the marriage

between two persons living together as husband and wife. As, Sunita and
Mukesh both living as husband and wife for a long period and with this
wedlock they have two children and both of the parties are agree that their
marriage is valid marriage. Also there marriage is registered according to the
provisions of SMA and marriage certificate is issued to them. So, despite of
any other facts we can say that they both are living together as husband and
wife so the presumptions would be in favour of valid wedlock.
 In, AndrahennedigeDinohamy And Another

v.
WijetungeLiyanapatabendigeBalahamy And Others2
Their lordship of Privy Council laid down the general preposition that
“....where a man and woman are proved to have lived together as husband and
wife, the law will presume unless the contrary be clearly proved, that they were
living together in consequence of valid marriage and not in state of concubine”.
 In, Mohabbat Ali Khan v. Mohammad Ibrahim khan3
Their lordships of the Privy Council once again laid down that,
“The law presumes in favor of marriage and against concubine, when a man and a
woman have cohabitated continuously for number of years”.
In both the above stated cases, the Privy Council held that where a man and woman
lived together as husband and wife, the law presume in favor of their valid
wedlock. Presumption can be taking under section 114 of Indian evidence act,
1872.
114. Court may presume existence of certain facts. — The Court may presume
the existence of any fact which it thinks likely to have happened, regard being
2
AIR 1927 PC 185
3
AIR 1929 PC 135.

had to the common course of natural events, human conduct and public and
private business, in their relation to the facts of the particular case.4
 In, KhageshwarNaik v. DamuniBewa5
A man and woman were living together for long time and they were not only
known as husband and wife by neighbours but also by their relations. In addition
to this there was sufficient evidence that the man and woman had got married
according to social customs. In these circumstances, there must be presumption
that they were husband and wife under section 114 of Indian evidence act.
 As the facts of celebration i.e. marriage is already proven in the facts. So, the
presumptions that they were husband and wife under section 114 of
Evidence act.
 In, Veerappa v. Michael6
In this case, it was held that once the facts of celebration of marriage are proved,
the court shall presume everything necessary to validate the marriage including
performance of essential ceremonies.
 The factum of marriage is proved, as they have a marriage certificate.
4
AIR 1963 SC 983.
5
AIR 1963 SC 983.
6
TheIndian evidence act,1872 685AIR 1989 Orissa 10.

 In Guru charanBehara and Ors. V. Adikandabahara and ors.7
The single judge of the Orissa high court took the view that insofar as the
ceremonies of marriage under section 7 of Hindu marriage act, 1955 are concerned
their performance will be presumed, if the factum of marriage is established. In the
present case similar proposition is applicable as the marriage certificate under
special marriage act has been issued to the parties
 There are many cases in which if the two person cohabitate as husband and
wife than there would be presumption in favour of valid wedlock.
 In, Prabir Chandra Chatterjee v. Kaveri Guha Chatterjee8
In this case matrimonial proceedings were initiated by the wife by a petition

for divorce with the husband on various grounds like cruelty, adultery etc.
The marriage was solemnized according to Hindu rites and was registered
according to Special Marriage Act as in the present case of
Shabana v. Mukesh and the marriage was valid marriage.
 In Gopalchand v. Pravinkumari9,
The court observed that the continuous cohabitation of man and woman as husband
and wife and their treatment as such for number of years may raise the presumption
of marriage, but the presumption which may be drawn from the long cohabitation
is rebuttable and if there are circumstances which weaken and destroy that
presumption, the court cannot ignore them.
7
AIR 1972 Ori 38.
8
AIR 1987 Cal 191, 91 CWN 870
9
AIR 1952 SC 231.

 In,Sridhardey v. KalpanaDey10
Once the factum if marriage is proved, everything necessary to validate such

marriage, including the observation of essential ceremonies, shall be presumed,
particularly in case like the one at hand where either in the pleadings or in the
evidence on the ground of non performance of necessary ceremonies or otherwise
for there was absolutely no cross examination whatever any of the witness on the
evidence on these points.
 In this connection , it is further notable that, Insofar as the criminal matters

are concerned, it is essential that all the ceremonies must be proved beyond
may reasonable shadow of doubt while it is not so in civil cases.
 In, Rajdei v. Lautan11
In this case, Allahabad high court also noted distinction between two
different standard of proof in civil and criminal matter. It was further
held that it was not law that saptpadi must be proved in every case.
From the above conspectus of law few propositions arise,
I. Firstly, that there are distinct and different standard of proof for the civil
and criminal matters and the standard of proof beyond any reasonable
doubt of shadow, would not apply in civil matters and in civil matters the
preponderance of probability in favour of marriage would be sufficient to
hold that all ceremonies were performed.
II. Secondly, in such a matter of is to be presumed that all essential
ceremonies have been performed unless and until the opposite party claim
specifically that particular ceremony was not performed?
10
AIR 1987 CAL 213,1986
11
1980 Allahabad 169

So, from the above points we can conclude that the marriage between
Shabana and Mukesh is valid marriage.
2. WHETHER NON-CONTEST BY WIFE OF DIVORCE PETITIONFILED

BY THE HUSBAND IN A FOREIGN COURT IMPLIES THATSHE HAD
CONCEDED TO THE JURISDICTION OF THE FOREIGN COURT?
Let’s understand this question that were involved in the case it is,
 First essential to understand the legal concept that thurst upon the questions
that were involved in the case the special marriage act 1954 governs
marriages and divorce amongst 2 persons. This act as providing essentials
for a valid marriage also provides various grounds of divorce. Those
include cruelty, desertion and adultery. However this act do not recognize
irretrievable breakdown of marriage as a ground of divorce. It is also
important to note that in the present case, The marriage between the parties
was solemnized in India and in accordance to Hindu law.
 the second legal concept that thurst on the question involved in this case is
recognition of foreign judgments by Indian courts section 13 of CPC
provides that foreign judgment shall be binding on the parties and
conclusive until there exist circumstances as provided in exception to
section 13 of CPC these exception provides the foreign judgement shall not
be conclusive or binding in the following cases
i. The foreign judgments are passed by non-competent courts
ii. That the foreign judgments have not passed on the merits of cases

iii. Incorrect view has been taken of international law or Indian law has
not been recognized
iv. Principle of natural justice has been floated.
v. Judgments has been obtained by fraud
vi. Judgement allowed to claim founded on breach of any Indian law.
 In Smt. Satya Singh v. Teja Singh 12 the court considered the question mark
Indian courts bound to give recognition to divorce decree is granted by
foreign courts the court observed that the judgment of foreign “What is
rendered in the civil proceedings and therefore its validity in India must be
rendered on the terms of section 13 of the CPC it is a beside a point that the
validity of judgment is questioned in the criminal court not in a civil court if
the judgment falls under any of the clauses of section 13 it will cease to be
conclusive as to any matter there by adjudicated upon.
The Supreme Court of India in the case of
 M/S Alcon Electronics Pvt. Ltd. V. Celem S.A. OF Fos 34320 Roujan
The principle of comity of nations demanded to respect the order of English “given
in regard to an interlocutory order. Indian courts have to give due weightage to
such order until it falls under any of the said exceptions under section 13 of CPC so
from the above judgment it can be concluded that only those judgments have
conclusive in India who did not fall under the exceptions given in section 13 of
CPC as according to section 13 (b) of CPC says that if the foreign judgment has
12
1975 AIR 105

not been given on the merit of the case then that foreign judgment is not conclusive
in India. 13
As, from the above judgments it is conclusive that only that judgment is
conclusive in nature who didn’t fall under exceptions of sec 13 of code of civil
procedure.
 As, according to section 13(b) of code of civil procedure says if the judgement passed
not on merits than it is not conclusive in nature. Now, the question arises what type of
judgement we can say is passed on merits.
NOT ON MERITS
 In Narasimha Rao v. Y.VenkataLaxmi14
The court ruled that the decision must be given on the merits of cases and
following were the statements of court in giving the decision.
 Ground of divorce in the division of foreign courts should be ground

available under special marriage act the decision should be a result of the
contest between the parties.
 Grounds of divorce as the France grant divorce on the ground irretrievable

breakdown but this is not a ground in special marriage act.
GROUND OF DIVORCE:
First time this ground came to see in,
13
(2017) 2 SCC 253
14
(1991) 3 SCC 451

 Naveen Kohli v. NeeluKohli15

The parties had gotten married in 1975 within few years of marriage it turned down
due to adultery and cruelty.
The husband alleged that he had found his wife in compromising position and the
wife alleged that he had a concubine. The wife initiated several criminal
proceedings against husband intended to make his life miserable and the husband
also initiated some proceedings against the wife and started living separately for 10
years the trial court held that there is no any possibility To reunite the chain of
marital status. It was held that there is no alternative but to dissolve the marriage
the Supreme Court upheld the decision of the trial court.
In Vishnu Dutt Sharma v. Manju Sharma16
It was submitted on behalf of husband that Supreme Court had in earlier cases
dissolve the marriage on ground of irretrievable breakdown the court observed that
granting of divorce on the grounds of irretrievable breakdown would mean adding
colors to section 13 of the act through a judicial verdict it held that closes only
added by legislature not by courts taking this into consideration the Supreme Court
rejected the plea of dissolution of marriage on the grounds of irretrievable
breakdown of marriage .
As, from the above judgments it is concluded that the irretrievable breakdown of
marriage is not a ground of the divorce in the special marriage act, 1954.
15
AIR 2004 A 112
16
AIR 1993 P&H 92

As it is not ground then how can Mukesh got divorce in this ground. As it violate
the rule of Indian law which is also one of exception given in sec 13 of code of
civil procedure.
CONTEST OF PARTIES:
Decision should be result of contest between parties. It means decision should not
be ex parte, means in the presence of single party as Shabana does not contest the
case in France court so the decision is ex-parte and could not be applicable on her.
 in Gurdassmann v. Mohindersingh17
The Punjab and Haryana High Court held that an ex parte judgment and decree
which did not show that the plaintiff had lead evidence to prove his claim before
the court was not executable under section 13 B of CPC since it was not passed on
merits. So from the above arguments it is clear that the decision is not on the basis
of merit.
So, from the above judgments it is concluded that the judgment should not be
based on merits of the case. So this type of judgment is not conclusive in India.
NATURAL INJUSTICE
According to section13 (d) of the CPC, 1908 says that if the natural justice has
been floated the foreign judgment would not be conclusive in nature. On Indian
courts as we know the principle of natural justice is based on Maxim “Audi
alteram partem” which means the another party as in the present case no one has
heard the pleadings from the side of Shabana it is a matter of common knowledge
that with merely a ticket she cannot come to the proceedings New York. She has
17
AIR 1993 P&H 92

no relatives residing there so how far would she survive in France without any
necessities of food. So there is violation of natural justice.
 In veenaKalia v. JitendraNathKalia18it was held that rules of natural

justice were violated the foreign court did not check up whether the wife had
enough means and document to defend herself.
 In Baddat and co. v. East Indian trading company19
The apex court held that the foreign judgments are in forceable in India on same
ground and circumstances valid in England under common law on the ground of
equality, justice and good conscience.
As, the judgment passed by the france court is not on ground of equality, justice
and good conscience. So, the judgment is not binding on the shabana.
 In V Bhagat v. MrsBhagat20
The Supreme Court held that mainly because there are allegations and counter
allegations a decree of divorce cannot follow nor in the mirror delay in disposal of
divorce proceeding. It send a ground irretrievable breakdown of marriage is not a
ground itself.
Even the court of France has no jurisdiction to grant the divorce to the mukesh as
the foreign court has no jurisdiction to pass the decree of divorce as such this
18
AIR 1996DEL 54
19
AIR 1964 SC 538
20
AIR 1992 Delhi 267

decree is no decree in the eyes of law. The hon’ble Supreme Court of India held in
case tittled as
In , Jeewantipandeyvs Krishna Chandra pandey (1981)4SCC517
In this case court held that in order to give jurisdiction on the ground of residence
something more than a temporary stay is required. It must be more or less of a
permanent character and of such a nature that the court in which the respondent is
sued, is his natural form. The word resides by no means free from all ambiguity
and is capable of a variety of meanings according to the circumstances to which is
made applicable and the contest in which it is found. Residence in its ordinary
meaning is something more or less, of a permanent character and it is something
more than a permanent stay. Thus a place where the couple had casually or
temporarily visit, including the place where the couple had resided for a health
checkup or business or for a change cannot be treated to be a place of residence
and it cannot be said that the couple had last resided together at that place within
the meaning of special marriage act, 1954. Thus the court having territorial
jurisdiction over such places cannot be treated competent court of law for the
purpose of a proceeding under the provisions of special marriage act.
From the above for arguments we can conclude three things
1. The foreign Judgment not conclusive in nature.
2. In the present case as the Shabana have no means to attend the proceedings,
it is the duty of France court to see that if she have means or not which the
France court didn’t do.

3. The foreign court has not the jurisdiction to grant the decree of divorce
So, the decree of divorce passed by France court is not admissible in Indian courts
in the present case. As, this judgment is not conclusive than how it is binding on
shabana. However, if it is not binding than there is no question that whether she
contested the proceedings or not. So, the judgment is not admissible in Indian
courts.
4. WHETHER THE PRINCIPLE OF RES JUDICATA UNDERSECTION 11

OF CODE OF CIVIL PROCEDURE, 1908 ISAPPLICABLE TO THE
PROCEEDINGS BEING INITIATED INDISTRICT COURT OF
HAMIRPUR?
Under the Roman law, “ex capito res judicata” means one suit and one decision is
enough for any single dispute. The doctrine has been accepted in all civilized legal
system. In India it is governed under section 11 of the civil procedure code, 1908
which provides that once the matter is decided by the competent court no party can
be permitted to re-open it in subsequent litigation. By a plain reading of
explanation 2 of CPC say for the purpose of this section the competency of court
shall be determined.
The Supreme Court of India in the case of,

 M/S Alcon Electronics Pvt. Ltd.
V.
Celem S.A. OF Fos 34320 Roujan21
21
(2017) 2 SCC 253

“The principle of comity of nations demanded to respect the order of English given
in regard to an interlocutory order Indian courts have to give due weightage to such
order until it falls under any of the said exceptions under section 13 of CPC”
So from the above judgment it can be concluded that only those judgments have
conclusive in India who did not fall under the exceptions given in section 13 of
CPC then that judgment is not conclusive in nature. As it is clear that judgment
passed by FRANCE court is not conclusive, we already said this in above issue. So
the FRANCE court is not a competent court.
 In, Saroja v. Chinnusamy22
The apex court observed that after a careful reading of the provisions under
section 11 of CPC it is understandable that in order to constitute res judicata
following conditions must be satisfied,
i. There must be two suits one formal suit and the subsequent suit
ii. The court was decided the former suit must be competent to try the
subsequent suit
iii. The matter directly and substantially in issue must be same either
actually or constructively in both the suits
iv. The matter is directly and subsequently in issue in the subsequent suit
must have been heard and finally decided by the court in the formal suit
v. The parties to the suit all the parties under home they or any of them
claims must be same in both the suits
vi. The parties in both the suits must have claimed the same title
22
AIR 2007 SC 3067

AS A THIRD ESSENTIAL says that cause of action in both the suits must
be different. The principal enunciated in section 11 of CPC provides that no
court should try any suit on issue in which matters directly and subsequent
any issue has been decided directly and substantially in a formal suit the
stresses would be on term issue. On simplification reading of section 22of
Special marriage act 1954 is to mark a contingency.
9. 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.
It deals with a situation where a married couple for no justifiable reason is

withdrawing himself from the obligations attached to the institution of marriage
which at the hand of one of them is attempted to be settled together.
However divorce proceedings helps in dissolving the marriage. under no set of

circumstances of reasonableness section 9 deals with the issue which is either
covered by section 13 of Hindu marriage act does both of the provisions a
divergent to one another one aims to bring family together and other one aim is to
separate the family so the matter in both the cases are different from each other.
 In Balveer Singh v. Harjeetkaur23
23
Appeal from order no. 552 of 2015)

In this case, Uttrakhand High Court held that section 13 or 13 A and section 22 of
Hindu marriage act in both the cases the cause of action or matter is different so
section 22 and section 13 should be decided independently.
 In director cent Marine fisheries institutions v. A. kankan24
The apex court held that when a fresh cause of action arises, the principle of res
judicata will have no application. As, in this case the fresh cause of action is arises,
because shabana wants back our marital rights. Than Res judicata can’t bar.
 S Nagaraj v. B.R Vasudeva25
It was held that “RES JUDICATA” will not operate as bar for entertaining a fresh
cause of action.
 In union of India v. Pramod Gupta26
He said principal will however no application has inter alia in case where a
judgment is not speaking one. As the ex parte decree is passed, and it is not on
merits than the res judicata would not operate.
 In State of Uttar Pradesh v. Jagdish Saranaggrawal27
24
AIR 2009 (13) JT 62
25
(2010) (3) SCC 353
26
AIR 2005 SC 3708
2727
AIR 2009 SCC 689

It was held that where the suit has been dismissed for non prosecution. The
decision cannot be said to be on merits and consequently order would not operate
as res judicata. As, we already talk that the jurisdiction of France and District court
of Hamirpur both of two have separate and independent jurisdiction. The ground
of divorce is also not ground in the special marriage act, 1954. So, the Res judicata
can’t operate.
 Kirit Kumar v. U.O.I28
The apex court observed that principle of res judicata is founded on the principle
that where a court of competent has decided the issue, the same issue cannot be
agitated again and again but this doctrine is inapplicable to the cases where two
forums have separate and independent jurisdiction.
From the above arguments it is clear that in both the cases the cause of action
is different. So, Res judicata can’t operate on the cases in which the cause of
action is different. The main goal of this principle is to save the time of the
court not to do injustice. However, when any marriage broken down the very
first effort is to join the broken marriage. Shabana didn’t get chance for
fixingthe marriage. It is injustice. So, the principle of res judicata is not
applicable in present case.
4 WHEATHER THE RELATIONSHIP OF MUKESH AND EMILE IS

LEGAL?
28
AIR 1981 SC 1621

The relation of Mukesh and Emile is not legal as the France court is not competent
to grant the divorce as the France court has no jurisdiction.
Mukesh has disobeyed the law by contacting second marriage by misrepresenting

the true fact to the hon’ble court at France
The lordship of hon’ble supreme court in case tittled as
LACHMAN UTAM CHAND KIRPALANI vs MEENA ALIAS MOTA29
In this case the court held that the intentionally permanent forsaking and
abundenment of one spouse by the others without that others consent and without
reasonable cause. It is a total repudation of the obligation of marriage such the
relation of the mukesh and emile is not legal.
5 WHEATHER SHABANA IS ENTITTLED TO GET RESTITUTION OF

CONJUGAL RIGHTS UNDER SPECIAL MARRIAGE ACT 1954?
First we have to discuss meaning of restitution of conjugal rights,
29
AIR 1964 SC 40

When either the husband or the wife has, without reasonable excuse, withdrawn
from the society of other, the aggrieved party may apply by petition to the district
court for restitution of conjugal rights, and the court on being satisfied of the truth
of the statements made in such petition and there is no legal ground why the
application should not be granted, may decree restitution of conjugal rights
accordingly .
If spouse makes breach of this marital obligation without justifiable cause the other
can go to the court for the restitution of conjugal right.
In the present case also Mukesh left Shabana without any reasonable cause or
withdrawn from the society of Sabana so she is entitled to get restitution of
conjugal right.
The hon’ble supreme court also held in case
Suman singh vs sanjay singh30
Petition filed by husband for divorce on the ground of cruelty and petition by wife
for restitution of conjugal right –evidence on record shows that the husband who
withdrew from the wife’s company without there being any reasonable cause to do
so –moreover husband failed to make out any case of cruelty against wife- petition
filed by husband dismissed and petition filed by wife for restitution of conjugal
rights allowed.
The court held that,
As it appear to us from perusal of evidence that it is respondent who withdrew

from the appellant’s company without there being any reasonable cause to do so.
Now that we have held on fact that the respondent failed to make out any case of
30
AIR 2017

cruelty against the appellant it is clear to us that it was the respondent who
withdrew from the company of the appellant without reasonable cause and vice
versa and petition filed by the appellant against respondent under section 2 of
special marriage act seeking restitution of conjugal right is allowed . A decree of
restitution of conjugal right is accordingly passed against respondent.
PRAYER

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

DUTY BOUND EVER
HUMBLY PRAY.
RESPECTFULLY SUBMITTED.
COUNSEL LOR THE PLAINTIFF

Shabana Vs Mukesh (Plaintiff)

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

CAREER POINT UNIVERSITY

1ST NATIONAL MOOT COURT COMPETITION 2019

MEMORANDUM ON BEHALF OF THE PLANTIFF

HON’BLE SESSIONS COURTOFHAMIRPUR

Memorial on behalf of petitioner Page 1

3. TABLE OF CASES 5-6

5. STATEMENT OF FACTS 8-9

7. SUMMARY OF ARGUMENTS 11-

8. ARGUMENTS ADVANCED 13-

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

Memorial on behalf of petitioner Page 2

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

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

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

Memorial on behalf of petitioner Page 3

BOOKS AND DIGEST

1. THE CODE OF CIVIL PROCEDURE, 1908

2. INDIAN EVIDENCE ACT, 1872

3. THE HINDU MARRIGE ACT, 1955

4. SPECIAL MARRIAGE ACT, 1954

2. SCC ONLINE, HTTP:/WWW.SCCONLINE.CO.IN

5. MANUPATRA ONLINE RESOURCES

Memorial on behalf of petitioner Page 4

 Andrahinnedigidinoghamy and anr v. Wijetunge

Memorial on behalf of petitioner Page 5

Memorial on behalf of petitioner Page 6

i. The marriage was solemnized; or

Memorial on behalf of petitioner Page 7

Memorial on behalf of petitioner Page 8

Memorial on behalf of petitioner Page 9

1. WHETHER THE MARRIAGE IS VALID BETWEEN SHABANAAND

2. WHETHER THE NON CONTEST BY WIFE OF DIVORCE PETITION

3. WHETHER THE PRINCIPLE OF RES JUDICATA UNDER SECTION 11

4. WHETHER THE RELATIONSHIP OF MUKESH AND EMILE LEGAL?

5. WHETHER SHABANA IS ENTITLED TO RESTITUTION OF

Memorial on behalf of petitioner Page 10

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

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

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

Procedure, 1908 Is Applicable To The Proceedings Be Initiated In District

Memorial on behalf of petitioner Page 11

4. Whether Relationship of Mukesh And Emile is Legal?

5. Whether Shabana is entitled to Restitution of conjugal rights under the

On behalf of Shabana (plaintiff), Shabana is entitled to Restitution of Conjugal Rights as Mukesh

Memorial on behalf of petitioner Page 12

1. WHETHER THE MARRIGE OF SHABANA AND MUKESH IS

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

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

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

Memorial on behalf of petitioner Page 13

(c) Has been subject to recurrent attacks of insanity

➢A number of judicial pronouncements have been made on the marriage

 In, AndrahennedigeDinohamy And Another

Memorial on behalf of petitioner Page 14

WijetungeLiyanapatabendigeBalahamy And Others2

 In, Mohabbat Ali Khan v. Mohammad Ibrahim khan3

Memorial on behalf of petitioner Page 15

 In, KhageshwarNaik v. DamuniBewa5