MOOT COURT CASE – 6

BEFORE THE HON’BLE SUPREME COURT

SUNITA

PETITIONER

V.

MAHESH

RESPONDENT
 INDEX OF AUTHORITIES

CASES

Bhaurao Shankar Lokhande and another v. The State of Maharashtra and anr. reported in
AIR (1965) SC 1564

Shri Dilip Debnath v. Smti. Gopa Debnath and Shri Arup Debnath (Minor) (2014) TR 0100

Mousumi Chakraborty v. Subrata Guha Roy 2 (1991) DMC

Rabrindra Nath v. State, (1969) Cal 58

Harpreet Singh Sekhon v.RajwantKaur(2013) PH 4432

Sushma v Malti AIR (2009) Bom 225

Jayanti v. Almelu, (1904) 27 Mad. 45

Srinivasa v. Lakshmi, (1928) Mad. 216 18

PemPratapsingh v. JagratPratapKunwari, (1994) A11 118

Thulsai v. Raghuvan, (1985) Ker.

Gurdyal Singh v. Rajah of Faridkot (1895) 22 Cal 222 (PC)

Surinder Kaur Sandhuv. Harbax Singh Sandhu &A nr(1984) 3SCC 698

Smt. Shilpa Sachev v. Shri. Anand Sachev AIR (2017) SCOR 50583

Y. NarasimhaRao and others v. Y. Venkata Lakshmiand another (1991) SC 0603

Harmeeta Singh v. Rajat Taneja (2013) DE 0010

Ramnik Vallabhdas Madhvani v. Taraben Pravinlal Madhvani, AIR (2004) SC 108…

Maghraj Calla vs. Kajodi Mal (1993) RAJHC

Laxman v. meena, (1964)SC 40

Tara Chand v. Naraindevi, (1976) P& H 300

 STATEMENT OF JURISDICTION

The Petitioner has approached this Honourable Court under Section 9 of the Hindu Marriage
Act, 1955.

The District Court of Jalandhar has inherent jurisdiction to try, entertain and dispose all the
issues mentioned.
 STATEMENT OF ISSUES

-I-

Whether the marriage between Sunita and Mahesh is valid as per the provisions of the Hindu
Marriage Act, 1955

-II-

Whether the non-contest by wife of divorce petition filed by the husband in a Foreign Court
implied that she had conceded to the jurisdiction of Foreign Cou

-III-

Whether the principle of Res-Judicata under section 11 of Code of Civil Procedure, 1908 is
applicable to the proceedings being initiated in District Court, Jalandhar.

-IV-

Restitution of Conjugal Rights.

 STATEMENT OF FACTS

PARTIES IN DISPUTE:

The present petition is filed by the wife Sunita in the District Court of Jalandhar for the
restitution of conjugal rights against the divorce petition filed by the husband Mahesh in the
Trail Court of New York.

THE DISPUTE:

When Mahesh moved to New York after 4 years of marriage and 2 children with Sunita, he
developed an extra marital affair with a lady named Elizabeth Prescott, on receiving a letter
from Sunita expressing her willingness to join him in New York he replied 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 Trail Court of New York. And in July 2012, the Trail court
of New York granted a divorce decree in favour of Mahesh.

Sunita on the other hand said that the 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 Hindu Marriage Act, 1956, the grounds of
divorce under Section 13 of the Act are available to the wife under the given set of
circumstance.

THE MARRIAGE BETWEEN SUNITA AND MAHESHIS VALID AS

COUPLE GOT MARRIED IN SIKH CEREMONY AND GOT THEIR
MARRIAGE REGISTERED AS PER THE POVISIONS OF HINDU
MARRIAGE ACT, 1955

Till this day, there is no precise definition of the term „Hindu‟ available either in any statue
or in any judicial pronouncement. However since Hindu law applies to all those persons who
are Hindus for a better understanding they have been put into three following categories:

Any person who is aHindu, Jain, Sikh or Buddhist by religion i.e, Hindus by religion, Any
person who is born of Hindu parents (viz when both the parents or one of the parents is a
Hindu, Jain, Sikh or Buddhist by religion), i.e, Hindus by Birth;
And any persons who is not a Muslim, Christian, Parsi and Jew and who is not governed by
any other law.

In the given case the two parties in dispute are Sikhs by Religion and therefore they come
under the ambit of Hindu Laws in matters of family, marriage, succession and so on.

Marriage whether considered as a sacrament or a contract, gives rise to a status. It

confers a status of husband and wife on parties to the marriage, and a status of legitimacy
on the children of the marriage. For a valid marriage in most systems of law, two conditions
are necessary: (a) parties must have capacity to marry, and (b) they must undergo the
necessary ceremonies and rites.

When marriage is performed by way of performing the ceremonies applicable to either of the
parties, the validity of the marriage cannot be questioned.

According to Hindu Law marriage is one of the essential sacraments for every Hindu, thus
Hindu conceived of marriage as a sacramental union, as holy union. This implies several
things. First the marriage between man and women is of a holy character and not a
contractual union that it is a sacrosanct. Secondly a sacramental union implies that it is
permanent union. So marriage is a tie once tied cannot be untied. Thirdly the sacramental
union means that it is an eternal union; it is valid not merely in this life but in lives to come.
To this very idea and concept of marriage the enactment of the Hindu Marriage Act 1955
included a new dimension by which marriage also came to be considered as partly
contractual. This includes certain provisions which give a contractual basis to marriage under
Hindu Marriage Laws such as;

Section 5 of Hindu Marriage Act, 1955 deals with conditions for Hindu Marriage which says
a Hindu 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) in capable of giving a valid consent to it
in consequences of unsoundness of mind; b) though capable of giving a valid consent,
has been suffering from mental disorder of such a kind or to such an extend as to be
unfit for marriage and procreation of children; or c) has been subject to recurrent
attacks of insanity;
3. The bridegroom the age of [21 years] and the bide the age [18 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 Sapin Das of each other unless the custom or usage governing
each of them permits of a marriage between the two;
6. Ceremonies for a Hindu marriage.-(1) A Hindu marriage may be solemnized in
accordance with the customary rites and ceremonies of either party thereto. (2)
Where such rites and ceremonies include the saptapadi (that is, the taking of seven
steps by the bridegroom and the bride jointly before the sacred fire), the marriage
becomes complete and binding when the seventh step is taken;
7. Registration of Hindu Marriages.- (1) For the purpose of facilitating the proof of
Hindu marriages, the State Government may make rules providing that the parties to
any such marriage may have the particulars relating to their marriage entered in such
manner and subject to such condition as may be prescribed in a Hindu Marriage
Register kept for the purpose. (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 thereof, whether in all cases or in such cases as
may be specified and where any such direction has been issued, and 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 there from 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. Marriage. In
the case of Mousumi Chakraborty v. Subrata Guha Roy (24) it was held that
registration is not the only sole proof of marriage, in order to become a valid
marriage.
Section 7 of the said Act provides that the validity of a marriage will depend on observance
of "customary rites and ceremonies". The expression "customary rites and ceremonies"
means such Shastric ceremonies, which the caste or community to which party belongs is
customarily following. Customary rites and ceremonies to be accepted must be shown to have
been followed definitely as an essence of marriage ceremony from ancient times and
recognised such ceremonies as obligatory.

If the customary ceremonies are prevalent on the side of either party, its performance will be
enough for the validity of the marriage .For a customary rites and ceremonies to be accepted
must be shown that such custom has been followed definitely from ancient times and that all
the members of the caste.5 Stating the above the Hindu Marriage Act 1955 provides
provisions defining valid marriage, this Act thus imply that Hindu marriage has not just
remained a sacramental affair, but it also has a semblance of a contract as consent is of
importance notwithstanding the fact that it also a semblance of sacrament as in most
marriages sacramental ceremony is a still necessary. In the case in hand Sunita and Mahesh
entered the wedlock in Anand Karaj form of marriage which is ceremony of Sikh,
AnandKharaj is the Sikh marriage ceremony meaning blissful union that was introduced by
Guru Amar Das .Marriage by Anand Karaj is recognized form of marriage under the Hindu
Marriage Act by virtue of Section 2 of the Anand Marriage Act, 19096 which envisages that
all marriages which may be or may have been duly solemnized according to the Sikh
marriage ceremony called Anand shall be, and shall be deemed to have been with effect from
the date of the solemnization of each respectively, good and valid in law.

Therefore the contention that has arisen in this case is not even a matter of question whether
the marriage between Sunita and Mahesh is valid or not because vividly the two parties
entered the wedlock through legally recognised and valid ceremony of marriage i.e.,
Anand Karaj and also registered8 as per the provisions of the Hindu Marriage Act, 1955
and in effect a marriage certificate was also issued by the authorities to them which serves
as a very significant evidence for the legality and validity of their marriage. As already
discussed elaborately above about Section 8 of the Hindu Marriage Act, the registration
of marriage is provided for the purpose of facilitating the proof of Hindu marriages. In fact,
Section 8(1) begins with the words "for the purpose of facilitating the proof of Hindu
marriages". It is, therefore, obvious advantage of registration of marriage that it facilitates
proof of marriage in disputed cases.
 PRAYER

In light of the issue raised, arguments advanced and authorities cited, it is humbly said that
this Honourable Court may be pleased to hold, adjudge and declare that:

1. The Conjugal Restitution be restored under Section 9 of Hindu Marriage Act, 1955.
2. That the Ex Parte decree passed by the Honourable Trail Court of New York in the
present case be set aside.

Respectfully Submitted

Counsels on Behalf of Petitioners.

 STATEMENT OF ISSUES

-I-

Whether the marriage between Sunita and Mahesh is valid as per the provisions of the Hindu
Marriage Act, 1955

-II-

Whether the non-contest by wife of divorce petition filed by the husband in a Foreign Court
implied that she had conceded to the jurisdiction of Foreign Court.

-III-

Whether the principle of Res-Judicata under section 11 of Code of Civil Procedure, 1908 is
applicable to the proceedings being initiated in District Court, Jalandhar.

-IV-

Whether Restitution of Conjugal Rights is enforceable in the present case.

RES-JUDICATA UNDER SECTION 11 OF CODE OF CIVIL
PROCEDURE, 1908 IS APPLICABLE.

One of the applicability of doctrine of Res Judicata summarised by Sir William De Garay is
that the former judgement must be of a competent jurisdiction.

A foreign matrimonial judgment is to be recognized only if it is of the forum where the

respondent is domiciled and a permanent resident. When the fact of the case does not state
that neither Mahesh is a citizen of New York nor the parties were residing in United
States at the time of filing a petition, makes the decree passed by the Trail Court of New
York void ab intio.

RESTITUTION OF CONJUGAL RIGHTS INS NOT ENFORCEABLE

If the marriage has broken down to such extend that it cannot be improved, should the law
insist on finding the party at fault? And to what extend would it help if one finds out the
defaulting party? And suppose if no party is at fault or one is at fault or both are at fault, but
the marriage is nonetheless broken down, should the divorce be refused? The basic postulate
of breakdown theory is that if the marriage has broken down without any possibility of repair
then it should be dissolved, without looking to the fault of either party.

THE MARRIAGE BETWEEN SUNITA AND MAHESH IS VALID AS

COUPLE GOT MARRIED IN SIKH CEREMONY AND GOT THEIR
MARRIAGE REGISTERED AS PER THE PROVISIONS OF HINDU
MARRIAGE ACT, 1955

Marriage whether considered as a sacrament or a contract, gives rise to a status. It confers a

status of husband and wife on parties to the marriage, and a status of legitimacy on the
children of the marriage. For a valid marriage in most systems of law, two conditions are
necessary: (a) parties must have capacity to marry, and (b) they must undergo the necessary
ceremonies and rites.

Marriage shall be complete with the taking of several steps and till the taking of that step, it is
imperfect and revocable1

The Supreme Court held in Shankar Lokhande v. State of Maharashtra, that just rites and
ceremonies will not solemnise a Hindu Marriage, it is the customary rites and ceremonies that
are essential.

Section 5 of Hindu Marriage Act, 1955 deals with conditions for Hindu Marriage which says
a Hindu 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) in capable of giving a valid consent to it
in consequences of unsoundness of mind; b) though capable of giving a valid consent,
has been suffering from mental disorder of such a kind or to such an extend as to be
unfit for marriage and procreation of children; or c) has been subject to recurrent
attacks of insanity;
3. The bridegroom the age of [21 years] and the bide the age [18 years] 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;
4. The parties are not sapindas of each other unless the custom or usage governing each
of them permits of a marriage between the two;
5. Ceremonies for a Hindu marriage.-(1) A Hindu marriage may be solemnized in
accordance with the customary rites and ceremonies of either party thereto. (2)
Where such rites and ceremonies include the Saptapadi (that is, the taking of seven
steps by the bridegroom and the bride jointly before the sacred fire), the marriage
becomes complete and binding when the seventh step is taken;
6. Registration of Hindu Marriages.-(1) For the purpose of facilitating the proof of
Hindu marriages, the State Government may make rules providing that the parties to
any such marriage may have the particulars relating to their marriage entered in such
manner and subject to such condition as may be prescribed in a Hindu Marriage
Register kept for the purpose. (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 thereof, whether in all cases
or in such cases as may be specified and where any such direction has been issued,
and 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 there from 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 when marriage is performed by way of performing the ceremonies
applicable to either of the parties, the validity of the marriage cannot be questioned.

As per Sikh Rehat Maryada are governed by the Anand Marriage (Amendment) Act, 2012.
Conditions for Marriage

The following conditions are to be satisfied to solemnize a Sikh marriage: No party to the
marriage should have a partner living at the time of marriage; both the parties to the
marriage-

Should be able to give a free and valid consent, should be mentally fit and not of an unsound
mind; or no party should be suffering from any mental disorder or mental illness thereby
effecting their ability to give a valid consent for the marriage and procreation of children or
no party should be suffering from persistent bouts of insanity;

The bridegroom should have completed the age of twenty - one and the bride should have
completed the age of eighteen years at the time of marriage; The parties to the marriage
should not be related to each other and should not come under the degrees of prohibited
relationship, unless otherwise allowed under the rituals or customs which governs each of
them which allows for such a marriage between both of them.
 PRAYER

In the light of the issue raised, arguments advanced and authorities cited, it is humbly said
that this Honourable Court may be pleased to hold, adjudge and declare that:

1. The present petition at once be dismissed as it does not hold any merits.
2. That the decree passed by the Honourable Trail Court of New York be duly
recognised by the Honourable District Court of Jalandhar and give equal
weightage and administer binding power to the decree.

Respectfully Submitted

Counsels on Behalf of Respondents.