Mona
Mona
Mona
SUNITA…………………………………………….…………………………………………………… (PETITIONER)
Vs
MAHESH…………………………………………………………………………………..…………... (RESPONDENT)
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TABLE OF CONTENTS
CONTENTS PAGE
NO.
LIST OF ABBREVIATIONS 3
INDEX OF AUTHORITIES 4
STATEMENT OF JURISDICTION 6
STATEMENT OF FACTS 7
STATEMENT OF ISSUES 8
ARGUMENT ADVANCED 9
PRAYER 23
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LIST OF ABBREVIATIONS
Art Article
No. Number
A.I.R All India Reporter
Hon’ble Honorable
& And
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INDEX OF AUTHORITIES
Mr. Abraham G. Karimpanal and AIR, 2004 KAND 321, ILR 2004
ors. Vs Nil KAR 1840,2004(4) KARLJ 15
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BOOKS
Family law by Paras diwan
Civil Procedure, Fifth Edition by C.K. Takwani
DATABASED REFERRED
WWW.MANUPATRA.COM
WWW.INDIANKANOON.ORG
WWW.LEXISNEXIS.COM
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STATEMENT OF JURISDICTION
The petitioner humbly submit to the jurisdiction of hon’ble district court of Jalandhar u/s
19 of Hindu Marriage Act, 1955. The petitioner is filling the petition before the hon’ble district
court of jalandhar for Restitution of conjugal rights u/s 9 of Hindu Marriage Act, 1955.
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STATEMENT OF FACTS
Sunita and Mahesh, residents of Jalandhar, belonging to Ravidasia community of Punjab, who are
Hindus by religion, got married in ceremony of Sikhs in 2007. The couple got their marriage registered
as per provisions of HMA, 1955 and in effect the marriage certificate was issued by the authorities. In
2008 after retirement from Indian army, Mahesh went to England for higher studies and stayed there
for 2 years. Then in April 2010, he moved to Canada and called his wife to join him there along with
their 1st child. In January 2011, their second child was born in Canada. In February 2011, he went to
New York. Thereafter he asked her to go back to India. In March 2011, she along with her children
came back to Punjab.
After moving to New York, Mahesh severed all his contacts with sunita. He had developed an extra
marital affair with a lady named Elizabeth Prescott. In January 2012, sunita wrote a letter to Mahesh
that she want to join him in New York. Mahesh in reply wrote to sunita that she should not come to
New York, as he was interested in getting their marriage dissolved. In April 2012, he filed a petition for
divorce in Trial Court of New York on the ground that his marriage has irretrievably broken down.
She could not contest these proceedings. In July 2012, the trial court of New York granted a divorce
decree in favour of Mahesh. Further the court ordered that the husband would pay to the wife and
children an amount of Rs. 50,000 per month for their maintenance. Since Mahesh failed to pay
maintenance to wife and children, sunita approached the trial court of New York through a letter and
prayed that she be provided legal aid. Thereafter proceedings were initiated & warrants of arrest
were issued against Mahesh. She further said that ex parte decree of divorce obtained by the
husband was not binding on her and was illegal and that she continues to be the wife of Mahesh. She
further asserted that as per the provisions of HMA, 1956, the grounds of the divorce (on the basis of
adultery, cruelty, & desertion) u/s 13 of the Act are available to the wife under the given set of
circumstances.
In April 2013, Sunita filed a petition u/s 9 of HMA, 1955 for Restitution of Conjugal Rights in DC of
Jalandhar. Mahesh appeared in the court and filed an application for dismissal of petition. He didn’t
filed any written statement & he referred to the decree of divorce granted by the trial court of new
York and said that dispite of notice, sunita didn’t contest the same & 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. Further by accepting the maintenance, sunita again in-effect
accepted the judgment of foreign court & thus estopped from filing the present petition (u/s 11 read
with sec 151 of CPC, 1908). The case is pending for adjudication in DC of Jalandhar.
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STATEMENT OF ISSUES
1) Whether the marriage of Sunita is valid as per the provision of Hindu Marriage Act,
1955?
2) Whether the decree passed by foreign court is binding upon the plaintiff?
3) Whether non-contest by the wife of divorce petition filed by the husband in foreign
court imply that she had conceded to the jurisdiction of foreign court?
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ARGUMENT ADVANCED
The marriage is valid as per Sec 2 (Application of the Act), Sec 5 (Conditions for a valid
Hindu Marriage), Sec 8 (Registration of marriage) of Hindu Marriage Act, 1955. Hindu
Marriage Act, 1955 applies to all hindus who have got married according to hindu law.
Sunita and Mahesh are hindus by religion then the Act shall be apply to both of them.
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A marriage may be solemnized between any two Hindus, if the following conditions are
fulfilled, namely: (1) neither party has a spouse living at the time of the marriage;
(2) at the time of the marriage, neither party-
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b)though capable of giving a valid consent, has been suffering from mental disorder of such a
kind or to such an extent as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity ;
(3) the bridegroom has completed the age of [twenty-one years] and the bride, the age
of [eighteen years] at the time of the marriage;
(4) 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;
(5) the parties are not sapindas of each other, unless the custom or usage governing each of
them permits of a marriage between the two.
In this case, Supreme Court held that a marriage is not proved unless the essential ceremonies
required for its solemnization are proved to have been performed.
(2) Notwithstanding anything contained in sub-section (1), the State Government may, if it is
of opinion that it is necessary or expedient so to do, provide that the entering of the
particulars referred to in sub-section (1) shall be compulsory in the State or in any part
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thereof, whether in all cases or in such cases as may be specified, and where any such
direction has been issued, any person contravening any rule made in this behalf shall be
punishable with fine which may extend to twenty-five rupees.
(3) All rules made under this section shall be laid before the State Legislature, as soon as may
be, after they are made.
(4) The Hindu Marriage Register shall at all reasonable times be open for inspection, and shall
be admissible as evidence of the statements therein contained and certified extracts
therefrom shall, on application, be given by the Registrar on payment to him of the
prescribed fee.
(5) Notwithstanding anything contained in this section, the validity of any Hindu marriage
shall in no way be affected by the omission to make the entry.
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The decree passed by the foreign court is not binding upon the plaintiff because the
jurisdiction of New York’s trial court is not come under the ordinary original civil
jurisdiction u/s 19 of Hindu Marriage Act, 1955.
Mahesh has filed a petition for divorce in trial court of new York. Jurisdiction of new
york’s trial court is not come under the ordinary original jurisdiction, so the question of
decree of the new york’s trial court does not arises.
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In January, 2011, mahesh and sunita’s second child was born in Canada. Then in
February , 2011 he went to new York and asked sunita along with her children to go
back to Punjab (India). It proves that Mahesh and Sunita did not live together in New
York.
Sunita and Mahesh have not resided last together in New York. So, according to sec
19(3) of Hindu Marriage Act,1955, New York’s trial Court is not come under original
civil jurisdiction.
Sec 19(2) of Hindu Marriage Act, 1955 provides that at the time of presenting of the
petition, the respondent has to reside in that place. But in this case Sunita was not
residing in New York at the time of presenting of the petition by Mahesh.
"It is plain in the context of Clause (ii) of Sec 19 of the Hindu Marriage Act, 1955 that the word
'resides' must mean the actual place of residence and not a legal or constructive residence, it
certainly does not connote the place of origin. The word 'resides' is a flexible one and has many
shades of meaning, but it must take its colour and content from the context in which it appears
and cannot be read in isolation. It follows that it was the actual residence of the appellant at the
commencement of the proceedings, that had to be considered for determining whether the District
Judge, Almora had jurisdiction or not."
In this case, the spouses did not set up any matrimonial home and lived at different places for
short duration, finally they stayed at Darjeeling from where they parted company. It was held
that they last resided together at Dargeeling.
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After moving to new York Mahesh severed all his contact with sunita. He had developed
an extra marital affair. In April, 2012, he filled petition for divorce on the ground that his
marriage has irretrievably broken down. It was not sufficient ground.
The divorce decree passed by the trial court of New York was in favour of Mahesh.
There was no consent of sunita. There should be mutual consent of both the parties.
The judgment passed by trial court of new York is not conclusive under sec 13 (a) of Civil
Procedure Code, 1908. It is fundamental principle of law that the judgment or order
passed by the court which has no jurisdiction is null and void.
The trial court of new York has no competent jurisdiction to decide this case under sec
13(1) of Civil Procedure Code, 1908.
Ex parte decree was obtained by the husband was not binding on her and was illegal.
1. It was present to the mind of the foreign court that there was a personal law which
governed the parties and the foreign court could not have assumed jurisdiction in the
light of Section 19 of the 1955 Act. The court below was clearly wrong in holding that the
petition for divorce could have been filed before the foreign court. If further proceedings
had stopped at that stage, it was clearly a case where the decree of divorce granted by
the foreign court could have been held not binding on the appellant. Therefore,
the foreign court did lack jurisdiction as the parties were clearly governed by the
provisions of the 1955 Act and therefore, the marriage, to which the 1955 Act applied,
could not have been dissolved by a court without jurisdiction, notwithstanding the local
law under which the proceedings may have been instituted. The judgment of
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the foreign court was also violative of clause (a) of Section 13 of the CPC, as
the foreign court cannot be considered as a court of competent jurisdiction, since the law
under which the parties were married could not recognise it as a competent jurisdictional
court to entertain the matrimonial dispute in terms of clause (a) of 13 of the CPC.
2. The decree of the foreign court is also not binding even if it is held that the plaintiff had
acquiesced and submitted to the jurisdiction of the foreign court. Though the ground of
divorce was available under the 1955 Act, there being a variation thereof, in the manner
in which, divorce could follow an order of judicial separation, as is evident. Insofar as the
American Law that has been applied only required a lessor period should elapse from the
date of order of judicial separation before the decree of divorce could be granted, clearly
in variance with Section 13 of the 1955 Act, which requires 24 months to elapse before a
decree of divorce could be granted. Therefore, when the decree of divorce is clearly in
violation of the law as applicable in India, the same would clearly be opposed to Section
13 of the CPC.
A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon
between the same parties or between parties under whom they or any of them claim litigating
under the same title except-
(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
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1
[India] in cases in which such law is applicable;
(d) where the proceedings in which the judgment was obtained are opposed to natural justice;
(f) where it sustains a claim founded on a breach of any law in force in 1[India].
2. The petitioner filed a petition for divorce against the first respondent-husband under the
provisions of Section 13(1)(i). (i-a) and (i-b) of the Act seeking divorce on the grounds of
adultery, cruelty and desertion. The first respondent-husband was allegedly living with
the second respondent in adultery with whom, he said, he had married after his divorce
from the petitioner. Both the respondents are residents of the United States of America.
This petition for divorce was filed in September, 1984 in the Court of the District Judge,
Delhi.
3. The petitioner said she and the first respondent were married in India according to Hindu
rites on 12 October, 1968 and that two daughters were born to her in 1970 and 1971. In
February, 1972 the first respondent left for England to pursue further studies and in 1973
he went to Canada. From there he wrote a letter to the petitioner to join him in Canada.
That was in June, 1973.
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4. In November, 1973, however, he wrote another letter to the petitioner that she should
not come to Canada as he was interested in getting their marriage dissolved. In August,
1975 the first respondent filed a petition for divorce in the Supreme Court of Nova Scotia
in Canada on the ground that his marriage with the petitioner had permanently broken
down. The petitioner could not contest these proceedings, she having no means to go to
Canada. On 22 December, 1975 the Supreme Court of Nova Scotia granted a divorce
decree nisi in favour of the respondent-husband to be made absolute within three
months.
5. This decree of divorce was made final on 19 May, 1976. The Court at Nova Scotia further
ordered that respondent-husband would pay to the petitioner an amount of Rs. 1,000/-
per month for her maintenance and for that of the children w.e.f. 1 July, 1976 till she
remarried. Since the respondent-husband failed to pay maintenance to the petitioner she
approached the Court at Nova Scotia by letter and prayed that she be provided legal aid
and on that proceedings were initiated and warrants of arrest were issued against the
first respondent.
6. He, it appeared, left Canada for the United States. However, he deposited a cheque of
Rupees 5,000/- with the Legal Aid Cell in Canada and petitioner says he misled them that
he could not pay maintenance as he had lost the address of the petitioner.
7. The petitioner then states how she was harassed for not being paid maintenance right
from 1978 to 1985. Petitioner says subsequently she came to know that the first
respondent married the second respondent and had three children from her.
8. She said the ex parte decree of divorce obtained by the first respondent was not binding
on her and was illegal, and that the petitioner and the first respondent continued to be
wife and husband. On various averments set out in the petition the petitioner sought
divorce on the ground of adultery, cruelty and desertion, and on these ground
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The non-contest by wife of divorce petition filed by the husband in foreign court does
not imply that she had conceded the jurisdiction of foreign court.
Sunita could not contest the proceedings, she having no means to go to new York
because she want to continue to be a wife of Mahesh
She asserted that as per the provisions of Hindu Marriage Act, 1956 the grounds of
divorce (on the basis of adultery cruelty and desertion) u/s 13 of the Act.
In fact, she is actual victim, who was being further victimized by the order of the New
York, trial court.
In April 2013, sunita filed a petition u/s 9 of the Hindu Marriage Act,1955 for Restitution
of Conjugal Rights in the District Court of Jalandhar. It means she does not want to
getting their marriage dissolved.
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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
reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall
be on the person who has withdrawn from the society.]
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The principle of Res-judicata u/s 11 of Civil Procedure Code, 1908 shall not be applicable
to the proceedings being initiated in District of Jalandhar.
It enacts that once a matter is finally decided by the competent court, no party
can be permitted to reopen it in a subsequent litigation
“Competent Court” the word has been used in sec 11 of CPC which denotes that
the judgment passed by the court should be competent.
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In this case, the trial court of New York has no Competent Jurisdiction then the
question of Res-judicata does not arises.
The principle of Resjudicata shall not be apply in this case. Therefore, petition for
Restitution of conjugal rights filled by Sunita in District Court of Jalandhar is valid.
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Prayer
WHEREFORE, IN THE LIGHT OF FACTS STATED, ISSUES RAISED, AUTHORITIES CITED AND
ARGUMENTS ADVANCED, IT IS PRAYED THAT THIS HON’BLE COURT MAY GRACIOUSLY
PLEASED TO:
1. The decree passed by the foreign court shall not binding upon the plaintiff u/s 19 of Hindu
Marriage Act, 1955
2. The trial court of New York shall not have Competent Jurisdiction u/s 13(1) of Civil
Procedure Code, 1908
3. The principle of Res-judicata shall not be applicable to the proceedings being initiated in
District Court of Jalandhar because the trial court of New York has no Competent
Jurisdiction.
4. The District Court of Jalandhar has to decide the petition for Restitution of conjugal
rights filled by Sunita u/s 9 of Hindu Marriage Act,1955.
5. Pass any such order as this Hon’ble Court may deem fit in the interest of justice.
All of which is most humbly and respectfully prayed to set aside the order of the
District Court.
AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY BOUND SHALL EVER
PRAY.
Date : ___/____/____
Place : Jalandhar
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