2nd MDU-CPAS NATIONAL MOOT COURT COMPETITION

R 12

2nd MDU-CPAS NATIONAL MOOT COURT COMPETITION

BEFORE THE
HON’BLE HIGH COURT OF DELHI

APPEAL (CIVIL) NO. _________ OF 2019

NAVEEN SINGH …APPELLANT

V.

TARA KAPOOR …RESPONDENT

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT’S COUNSEL

APPEARING ON BEHALF OF THE RESPONDENT

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TABLE OF CONTENTS

1. LIST OF ABBREVIATIONS……...……………………………………………………3

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

I. Books

II. Legislations

III. Cases Referred

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

4. STATEMENT OF FACTS………………………………………………………...…….7

5. ISSUES RAISED……………………………….………………………………………...9

6. SUMMARY OF ARGUMENTS……………….…………....…………………............10

7. ARGUMENTS ADVANCED…………...……..…………………………………….....11

I. The judgment passed by the Texas Court is not valid in India……....………………11

A) Violation of Section 13 CPC

B) Texas Court not a Reciprocating Territory

II. The divorce filed under Section 13 is valid……………………………...……..……18

A) Does Not Violate S. 14 of HMA

8. PRAYER……………………………………………….………………………..………21

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LIST OF ABBREVIATIONS

1. AIR All India Reporter

2. All Allahabad

3. Art. Article

4. BOMLR Bombay Legal Reporter

5. CWN Calcutta Weekly Notes

6. O.J.R. Other Journal Reporter

7. HMA. Hindu Marriage Act, 1955

8. Hon’ble Honorable

9. Ors. Others

10. Mad. Madras

11. Mys Mysore

12. MLJ Madras Law Journal

13. MP Madhya Pradesh

14. Raj Rajasthan

15. ILR Indian Law Journal

16. SC Supreme Court of India

17. SCC Supreme Court Cases

18. V Versus

19. Vol. Volume

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INDEX OF AUTHORITIES

BOOKS

1. Mulla, Code of Civil Procedure 16th Ed. Vol. 1 LexisNexis

2. SR Myneni, Code of Civil Procedure & Limitation Act, 3rd edition, Asia Law House
3. Dinshaw Fardungi Mulla, The Code of Civil Procedure, 17th edition, Lexis Nexis
4. Justice CK Takwani, Civil Procedure (CPC) with Limitation Act, 7th edition, Eastern
Book
5. Prof MP Jain, The Code of Civil Procedure (CPC), 3rd edition, Jain Book Agency
6. Monika Srivastava, Code of Civil Procedure, 2018 edition, Taxmann
7. Dinshah Fardunji Mulla, Mulla Hindu Law, 21st edition, Lexi Nexis
8. MN Srinivas, Commentary on Hindu Marriage Act of 1955, 3rd edition, Delhi Law House
9. Paras Diwan, Modern Hindu Law, 12th edition, Universal Law Publishing
10. Universal’s Concise Commentary of Hindu Law
LEGILATIONS

1. Hindu Marriage Act, 1955

2. Code of Civil Procedure, 1908
3. Hague Convention on Divorce and Legal Separation
4. Constitution of India
CASES REFERRED

Case Name Citation Footnote

R. Viswanathan v. Rukn-ul-Mulk Syed Abdul AIR 1963 SC 1 1

Sumita Singh vs. Kumar Sanjay (2001) 10 SCC 41 2

Satya v. Teja Singh AIR 1975 SC 105 3

Arjun Singhal v. Pushpa Karwel AIR 2003 MP 189 4

Neeraja Saraph v. Shri Jayant V. Saraph JT 1994 (6) SC 488 6

Christy Selvarathy v Daniel Athisayaraj (1996) 1 MLJ 50 8

Jean Emeline Thavamani v. Joseph Taylor AIR 1966 Mad 155 9

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Case Name Citation Footnote

Jayaraj Antony v. Mari Seeniammal AIR 1967 Mad 242 11

Y. Narasimha Rao v. Y. Venkata Lakshmi 1991 SCR (2) 821 13

Central Bank of India Ltd. v. Ram Narain, AIR 1955 SC 36 16

Sondur Gopal v. Sondur Rajini 2013(7) SCC 426 17

Nagendra Nath Ray v. Basanta Das Bairagya I.L.R. (1929) 47 Cal. 25 18

Bolandanda Pemmayya v. Ayaradara A.I.R. 1966 Mysore 14 19

Veena Kalia v. Dr. Jatinder Nath Kalia AIR 1996 Delhi 54 23

N.P.A.K. Muthiah Chettiar.v. K.S. Rm. Firm (1956) 2 MLJ 239 25

Shwebo, Burma

Maya Devi v. Jagdish Prasad AIR 2007 SC 1426 26

P.L. Sayal v. Smt. Sarla Rani AIR 1961 P H 125 28

G.V.N. Kameswara Rao v. G. Jalili 2002 S.C. 576 29

Shobha Rani v. Madhukar Reddy AIR 1988 SC 121 30

Rabindra Nath Mukherjee v. Iti Mukherjee 95 CWN 1085 34

Manish Sirohi v. Smt. Meenakshi AIR 2007 All 211 35

Indumathi v Krishnamurthy 1999 (1) CTC 210 36

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STATEMENT OF JURISDICTION

The appellant accepts the jurisdiction of the Honorable High Court of Delhi, invoked by the
Respondent under Article - 227 of the Constitution of India coupled with Sec. 96 of Civil
Procedure Code.

Section 96 of The Civil Procedure Code (CPC) states that -

“Appeal from original decree –

(1) Save where otherwise expressly provided in the body of this Code or by any other law
for the time being in force, an appeal shall lie from every decree passed by any Court
exercising original jurisdiction to the Court authorized to hear appeals from the
decisions of such Court.

(2) An appeal may lie form an original decree passed ex parte.

(3) No appeal shall lie from a decree passed by the Court with the consent of parties.

(4) No appeal shall lie, except on a question of law, from a decree in any suit of the
nature cognizable by Court of Small Causes, when the amount or value of the subject-
matter of the original suit does not exceed (ten) thousand rupees.

The appellant most humbly and respectfully submits to the jurisdiction of the Honorable High
Court of Delhi.

The present memorandum sets forth the facts, contentions and arguments in the present case.

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STATEMENT OF FACTS

Background

Naveen Singh, an IT Professional, residing and working in the state of Texas, USA, while his
parents lived in Chandigarh, India, met Tara Kapoor, a doctor working and residing in Delhi,
India, via a matrimonial website called happyweddings.com in August, 2014. After mutual
discussions between the families, it was agreed that Naveen would marry Tara when he will
return to India in January 2015. Accordingly when he returned, on 20th January, 2015 the
wedding was solemnized as per Hindu rites and ceremonies at a hotel in Chandigarh.

After Marriage

The couple spent few days at Naveen’s parent’s home in Chandigarh. The newlyweds bid each
other goodbye as Naveen left for Texas, USA on 27th January 2015 but before leaving he
promised Tara that he would send her the ticket and visa so that they can live together in Texas,
USA. On 2nd March 2015, Naveen happily welcomed his wife at the airport, Texas, USA and
they started living together at their matrimonial home.

Change in Behavior

Naveen began noticing drastic changes in Tara’s behavior; she suddenly became very violent and
withdrew herself from her husband’s company. After withdrawing from her husband’s company,
she began to scream and fight with her husband on daily basis. Tara filed a complaint against her
husband alleging domestic violence and Naveen remained in police custody for a few days.

Cases in Texas Court

Naveen, in May 2015, filed two suits against Tara - one being a petition for annulment of
marriage and another being a suit for damages for malicious prosecution before the Texas Court.
As a counterpart, Tara filed an application for maintenance before the Texas Court.

Tara left for India on 13th July 2015 because of which the Texas court proceeded ex parte against
her and passed a decree of annulment of marriage of the parties on 21st September 2015. Further,
the Court also decreed the suit of damages for malicious prosecution in favor of Naveen
awarding him $1,00,000/- as damages.
7

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Suit in Indian Court

Tara filed a suit of divorce under Section 13 Hindu Marriage Act on the ground of cruelty and
dowry demand before the Delhi Family Court on 3rd October 2015 against Naveen. Upon receipt
of notice from the Family Court, Naveen took an objection of maintainability and filed an
application for dismissal along with a certified copy of decree of annulment of marriage as
passed by Texas Court.

The Family Court dismissed the application on the ground that the decree of annulment of
marriage granted by Texas Court was without jurisdiction.

Appeal to High Court

Aggrieved by the order of the Family Court, Naveen approached the High Court of Delhi for
relief. Matter is listed for final hearing on 13th April, 2019 in High Court of Delhi.

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ISSUES RAISED

ISSUE I

Whether the judgment passed by the Texas Court is valid in India or not?

ISSUE II

Whether the divorce petition filed by the appellant under section 13 Hindu Marriage act is
valid?

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SUMMARY OF ARGUMENTS

The judgment passed by the Texas Court is not valid in India

It is humble submitted to the Hon’ble court that the decree of nullity of marriage between the
parties passed by the Texas court stands invalid on the grounds of lack of jurisdiction on part of
the aforementioned court. The decree does not pass the test laid down by Section 13 of the CPC
and is also against the international standards given to base jurisdiction upon. It is also submitted
to the Hon’ble court that the Texas court present in the United States Of America (USA) does
not qualify as a reciprocating country under Section 44A of the CPC which is released by the
official gazette given by the central government, therefore the decree so passed by an non-
reciprocating country is not automatically executed in the Republic Of India.

The divorce petition filed under section 13 shall not stand.

It is humble submitted to the Hon’ble court that the divorce petition filed under section 13 of the
Hindu Marriage Act of 1955 stands as valid on the grounds of cruelty and dowry demand. Over
the course of the relationship faced many hardships starting from relocation to another country
and there were previous cases being filed on the grounds of domestic violence against Naveen.
All these circumstances lead to the creation of a hostile environment for my client Tara which
qualifies as psychological cruelty. Therefore it is pleaded to the Hon’ble court that the divorce
may be granted.

10

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ARGUMENTS ADVANCED

[1] THE JUDGMENT PASSED BY THE TEXAS COURT IS NOT VALID IN INDIA

It is humbly submitted that for a judgment passed by a court outside the territory of India, it must
be a judgment pronounced by a court of competence jurisdiction and competence contemplated
under Sec. 13 of The Civil Procedure Code (CPC)1. Since the proceedings were initiated by the
respondent against the wife, the convenience of the wife had to be considered in contesting the
suit and, accordingly, the matrimonial proceedings ought to be transferred to Delhi, where the
wife was residing.2

Section 13 of CPC states –

“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-

(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 recognize the law of in cases in which such law is
applicable;

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

(e) where it has been obtained by fraud;

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

In other words, a foreign judgment is not conclusive as to any matter directly adjudicated upon,
if one of the conditions specified in clauses (a) to (f) of the aforementioned section is satisfied

1
R. Viswanathan v. Rukn-ul-Mulk Syed Abdul, AIR 1963 SC 1
2
Sumita Singh v. Kumar Sanjay (2001) 10 SCC 41
11

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and it will then be open to a collateral attack.3 The decree passed by the foreign court is, in fact,
in violation of several clauses of Section 13 and does not stand to be valid in an Indian court.

In Arjun Singhal v. Pushpa Karwel4 it was held that if a marriage is solemnized at a place
within the municipal limit and the part reside there only, the family court would have exclusive
jurisdiction to deal with case. The case cannot be transferred to district court on the ground that
the husband resides outside the municipal limits of Municipal Corporation. The respondent in the
present case was residing in the State of Texas, USA but regardless the marriage had been
solemnized in Chandigarh according to Hindu rites and ceremonies5 and thus were in the
jurisdiction of the family court.

In the case of Smt. Neeraja Saraph v. Shri Jayant V. Saraph6, the Supreme Court held that
although it is a problem of Private International Law and is not easy to be resolved, but with
change in social structure and rise of marriages with NRI the Union of India may consider
enacting a law like the Foreign Judgments (Reciprocal Enforcement) Act, 1933 enacted by the
British Parliament under Section 1 in pursuance of which the Government of United Kingdom
issued Reciprocal Enforcement of Judgments (India) Order, 1958.The Court recommended that
feasibility of a legislation safeguarding interest of women may be examined by incorporating
such provisions as

(a) no marriage between a NRI and an Indian woman which has taken place in India may be
annulled by a foreign court;
(b) provision may be made for adequate alimony to the wife in the property of the husband
both in India and abroad;
(c) the decree granted by Indian courts may be made executable in foreign courts both on
principle of comity and by entering into reciprocal agreements like Section 44A of the
Civil Procedure Code which makes a foreign decree executable as it would have been a
decree passed by that court.

3
Satya v. Teja Singh, AIR 1975 SC 105
4
AIR 2003 MP 189
5
Moot Problem p. 1 para 1
6
JT 1994 (6) SC 488
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Article 8 of the Hague Convention on Divorce and Legal Separation7 states –

“If, in the light of all the circumstances, adequate steps were not taken to give notice of
the proceedings for a divorce or legal separation to the respondent, or if he was not

Even Article 10 of the same convention expressly states that the contracting States may refuse to
recognize a divorce or legal separation if such recognition is manifestly incompatible with their
public policy.

On presuming that the Texas Court declared the marriage annulled on the grounds of impotency
of the petitioner, the judgment will not be maintainable because the appellant had not been
sufficiently heard and in a case of such a predicament requires both the parties to produce
sufficient evidence before a judge could make a fair decision. In the case of Christy Selvarathy
v. Daniel Athisayaraj8 it was held that “impotency has to be proved to the satisfaction of the
court and merely because the opposite party remains ex parte, the court cannot take it for granted
that impotency is proved.” In Jean Emeline Thavamani v. Joseph Taylor9, the court said that
where there is no medical inspection and none but the parties testify, the court should be hesitant
to accept the mere statement of a party, particularly, when the petitioner's evidence is left
unchallenged and the respondent chooses to remain ex parte.10 Which was reiterated in Jayaraj
Antony v. Mari Seeniammal11, the Full Bench said that impotency as defined as incapacity to
consummate marriage, which may be physical or psychological and when impotence is alleged
as ground evidence will certainly be necessary, particularly, in the form of expert medical
testimony. With Section 13(d) going against the proceedings in which judgment was opposed to
natural justice, in accordance to the provisions of Order 9 Rule 1312 of the Code of Civil
Procedure, due to the problems of affordability of a means to appear for the court hearing, the ex
parte judgment meted out by the Texas court should not be maintainable.

7
Hague Convention on Divorce and Legal Separation available at https://assets.hcch.net/docs/bdb59a0f-9405-4910-
9dc3-b7e5310405cc.pdf
8
(1996) 1 MLJ 50
9
AIR 1966 Mad 155
10
Christy Selvarathy v Daniel Athisayaraj (1996) 1 MLJ 50
11
AIR 1967 Mad 242
12
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
13

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[A] VIOLATION OF SECTION 13

Clause (c) of Section 13 states that where the judgment is founded on a refusal to recognize the
law of this country in cases in which such law is applicable, the judgment will not be recognized
by the courts in this country. The marriages which take place in this country can only be under
either the customary or the statutory law in force in this country. Hence, the only law that can be
applicable to the matrimonial disputes is the one under which the parties are married, and no
other law.13

The Hindu Marriage Act under which the marriage was solemnized extends to all Hindus
domiciled in India whether or whether not they are resided in the country.14 It is a well-
established proposition that a person may have no home but he cannot be without a domicile.15 If
a person leaves the country of his origin with an undoubted intension of never returning to it
again, nevertheless his domicile of origin adheres to him until he actually settles with the
requisite intention in some other country.16 In Sondur Gopal v. Sondur Rajini,17 after noticing
the provisions of section 1 (2) HMA in which it has been laid down : -

"14. Bearing in mind the principle aforesaid, when we consider Section 1(2) of the Act, it
is evident that the Act extends to the Hindus of whole of India except the State of Jammu
and Kashmir and also applies to Hindus domiciled in India who are outside the said
territory. In short, the Act, in our opinion, will apply to Hindus domiciled in India even if
they reside outside India. If the requirement of domicile in India is omitted altogether, the
Act shall have no nexus with India which shall render the Act vulnerable on the ground
that extra-territorial operation has no nexus with India. In our opinion, this extra-
territorial operation of law is saved not because of nexus with Hindus but Hindus
domiciled in India.”

Therefore, the appellant moved to Texas with an intention to reside with her husband but shortly
moved back to the country of her origin, thus, retaining her original domicile.

13
Y. Narasimha Rao And Ors v. Y. Venkata Lakshmi And Anr1991 SCR (2) 821
14
Section 1 clause (2) Hindu Marriage Act, 1955
15
Mulla, Hindu Law 21st edition LexisNexis
16
Central Bank of India Ltd. V. Ram Narain, AIR 1955 SC 36
17
2013(7) SCC 426
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According to Section 11 of Hindu Marriage Act, 1955 a marriage is considered to be void unless
any one of the three conditions under Section 5 (i), (iv) and (v) respectively is fulfilled;

 neither party has a spouse living at the time of the marriage;

 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;
 the parties are not sapindas of each other, unless the custom or usage governing each of
them permits of a marriage between the two;

In the instant case, none of the three conditions which are a requisite for a marriage to be
annulled were present and thus the ex-parte judgment passed by the Texas court was not in
accordance with the law which governed the marriage of the parties.

Moreover, the malicious prosecution case awarded in favor of the respondent goes against the
law prevalent in this country. A malicious prosecution case cannot be set in motion where there
was no prosecution at all and mere police proceedings are not an equivalent to prosecution.18
Since only a complaint was filed and no judicial action taken therefore on that complaint does
not amount to prosecution.19 The respondent was kept only in police custody20 and not presented
before a judge or a judicial equivalent, the decision of the Texas court to award $1,00,000/- as
damages was against the law of this country.21

Clause (d) of Section 13 makes a foreign judgment unenforceable on the ground that the
proceedings in which it is obtained are opposed to natural justice.

In the case of Y. Narasimha Rao v. Y. Venkata Lakshmi22, the court states

“If the rule of audi alteram partem has any meaning with reference to the proceedings in
a foreign court, for the purposes of the rule it should not be deemed sufficient that the
respondent has been duly served with the process of the court. It is necessary to ascertain
whether the respondent was in a position to present or represent himself/herself and
contest effectively the said proceedings.”

18
NagendraNath Ray v. Basanta Das Bairagya I.L.R. (1929) 47 Cal. 25
19
Bolandanda Pemmayya v. Ayaradara A.I.R. 1966 Mysore 14
20
Moot Problem p. 2 para 1
21
Moot Problem p. 2 para 4
22
Narasimha case supra footnote 13
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In VeenaKalia v. Dr. Jatinder Nath Kalia23., the Court held that

“since the wife was not in a position to contest the proceedings in a foreign Court as she
had no means to go there, the rules of natural justice stood violated and the foreign
decree was held to be a nullity. afforded a sufficient opportunity to present his case, the
divorce or legal separation may be refused recognition.”

In the present case, the wife did not have a means to travel back to Texas to continue the
proceedings, and hence a judgment passed ex-parte24 against the appellant has to be considered
against the principles of natural justice violating S. 13 (d) of CPC.

[B] TEXAS COURT NOT A RECIPROCATING TERRITORY

It is humbly submitted that the Hon’ble court of Texas present in the United States Of America
does not qualify as a reciprocating territory as given under Section 44A of the CPC which is
release by the official gazette decide by the Central government of republic of India.

Section 44A states that –

(1) Where a certified copy of a decree of any of the superior Courts of any reciprocating
territory has been filed in a District Court, the decree may be executed in [India] as if it
had been passed by the District Court.

(2) Together with the certified copy of the decree shall be filed a certificate from such
superior Court stating the extent if any to which the decree has satisfied or adjusted and
such certificate shall for the purposes of proceedings under this section be conclusive
proof of the extent of such satisfaction or adjustment.

(3) The provisions of section 47 shall as from the filing of the certified copy of the decree
apply to the proceedings of a District Court execution a decree under this section and the
District Court shall refuse execution of any such decree, if it is shown to the satisfaction
of the Court that the decree falls within any of the exceptions specified in clauses (a) to
(f) of section 13.

23
AIR 1996 Delhi 54
24
Moot Problem p.2 para 4
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In the case of N.P.A.K. Muthiah Chettiar v. K.S. Rm. Firm Shwebo25, the Hon’ble High
Court of Madras observed that with regard to decrees of a reciprocating territory contemplated in
the explanation to Section 44-A no suit is necessary but the same can be executed by the
application of the provisions of Section 47 CPC. The distinction that has to be borne in mind is
that reciprocating territories enjoy greater privilege regarding execution of decrees of their
superior Courts in our country than are enjoyed by the non-reciprocating territories.

The Hon’ble courts of the non-reciprocating territories have to follow Section 44A (3) of CPC
which in the present case are not being complied with by the violation of Sub section (c), (d) and
(f) Section 13.

25
N.P.A.K. Muthiah Chettiar (died) and Ors.v. K.S. Rm. Firm Shwebo, Burma and Ors.4(1956) 2 MLJ 239
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[II] THE DIVORCE FILED UNDER SECTION 13 IS VALID

It is humbly submitted that the divorce petition filed by the appellant under Section 13 of the
Hindu Marriage Act, 1955 on the grounds of cruelty and dowry are valid and stand because of
the reasons henceforth elaborated. As rightly opined by the Hon’ble Judges in the case of Maya
Devi v. Jagdish Prasad26, “Among the human beings there is no limit to the kind of conduct
which may constitute cruelty. New type of cruelty may crop up in any case depending upon the
human behavior, capacity or incapability to tolerate the conduct complained of. Such is the
wonderful/realm of cruelty.” In the same case, it was further held that the cruelty need not be
only intentional, willful or deliberate. It is not necessary to prove the intention in matrimonial
offence. In the present case, according to the facts, the appellant had to leave her country of
origin and begin a life afresh in a foreign country and was dependent on a third person, the
respondent. Being unable to fulfill her marital obligation of consummation and the cases filed by
the respondent for the annulment of marriage added onto to destroying her mental peace and
stability.

Any wilful conduct which is of such a nature as is likely to drive a woman to commit suicide
would constitute cruelty. Such wilful conduct which is likely to cause grave injury or danger to
life, limb or health (whether mental or physical of the woman) would also amount to cruelty. The
question of mental cruelty has to be considered in the light of the norms of marital ties of the
particular society to which the parties belong, their social values, status, environment in which
they live.27

With Cruelty being one of the grounds for judicial separation and divorce, emphasis on the act or
conduct or will constituting it, has been established as per Sayal v. Sarla.28

This was further elaborated in the case G.V.N. Kameswara Rao v. G. Jalili29 that the act of
cruelty need not be of such a nature as to create reasonable apprehension that it would be
harmful for the appellant to live with the other party. Keeping this in mind, with the pressures of
staying within the marriage to evade financial constraints, keeping in mind she was self-

26
Maya Devi v. Jagdish Prasad, AIR 2007 SC 1426
27
Ibid.
28
P.L. Sayal v. Smt. Sarla Rani AIR 1961 P H 125
29
2002 S.C. 576
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sufficient within the domicile of India and not in Texas, and her intentions of residence being
actual and genuine, accompanied with a desire to settle for a long period of time and not as a
mere sojourn.

The cruelty alleged may largely depend upon the type of life the parties are accustomed to or
their economic and social conditions. It may also depend upon their culture and human values to
which they attach importance.30

[A] DOES NOT VIOLATE SECTION 14 OF HINDU MARRIAGE ACT

The respondents might argue that the divorce petition filed by the appellant goes against Section
14 of the Hindu Marriage act since the petition has been filed under one year from the date of
solemnization of marriage. Under Section 23(2) it is the duty of every court to ensure the
reconciliation of marriage in every case as far as possible31. On the other hand, The Law
Commission of India, under the Chairmanship of Justice Gajendragadkar, an eminent Jurist and a
former Chief Justice of India, recommended the deletion of these provisions in its 59th Report on
the Hindu Marriage Act32 and observed as hereunder:

"While we appreciate the legislative policy of placing an emphasis on reconciliation

rather than on a hasty divorce, we think that there should be no restriction as to time.
The Court will have, under Section 23(2), opportunity to consider if the peace and
harmony are beyond retrieval. If they are not beyond retrieval, reconciliation under
Section 23(2) will succeed, because Section 23(2) is intended to create condition for
maintaining or restoring the mutual confidence between the parties.

We, therefore, recommend that section 14 should be deleted.”33

The learned Judge J. Bhattacharjee in Rabindra Nath Mukherjee v. Iti Mukherjee34 explains
that “these provisions came to be known as "Fair Trial to Marriage Rule", the avowed object

30
Shobha Rani v.. Madhukar Reddy AIR1988SC121
31
“Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every
case where it is possible so to do consistently with the nature and circumstances of the case, to make every
endeavour to bring about a reconciliation between the parties”
32
Law Commission of India 59th report on Hindu Marriage Act and Special Marriage Act available at
http://lawcommissionofindia.nic.in/51-100/Report59.pdf
33
Ibid, paragraphs 2.31
34
95 CWN 1085
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being to prevent hasty divorce proceedings resorted to rashly and in the heat of passion and to
require the spouses to give a trial to the marriage for a period of three years so that the heated
passion may spend up and calm of mind is restored and marriages are maintained for the stability
of the society”

In the case of Manish Sirohi v. Smt. Meenakshi35 the husband filed for divorce “immediately
after the marriage as there was no relationship amongst themselves” the learned Judge J.
Amitava Lala applied the proviso under Section 14 and allowed the appeal stating, “It appears to
us that when immediately after marriage no marital relationship developed amongst themselves
and they are voluntarily inclined to withdraw relationship, their life should not be allowed to be
deserted” The Proviso to Section 14(1) would also indicate that the provisions requiring
intervention of one year between the date of marriage and the date of presentation for petition for
divorce are not that mandatory.36

35
AIR 2007 All 211
36
Indumathi v Krishnamurthy 1999 (1) CTC 210
20

Memorial for Petitioner

 2nd MDU-CPAS NATIONAL MOOT COURT COMPETITION

PRAYER

Wherefore, in the lights of the facts stated, issues raised, authorities cited, and arguments
advanced, may the Hon’ble Supreme Court of India be pleased to adjudge and declare that:

1. The appeal filed by the Respondent on the decision of the Family Court is dismissed
2. The marriage stands to be dissolved by passing a decree of divorce under Section 13 of
Hindu Marriage Act.
3. The respondent is liable to pay compensation for the hardship faced by the petitioner.

Or pass any order as it deems fit in the interest of the Appellant to meet the ends of equity,
justice and good conscience.

For this act of kindness, the agents on behalf the Appellant shall duty bound, forever pray.

Respectfully Submitted

Agents on Behalf of the Petitioner

21

Memorial for Petitioner