RBU, USL

UNIVERSITY SCHOOL OF LAW

IN THE HON’BLE HIGH COURT

MEMORIAL FILED ON BEHALF OF THE RESPONDENT

Case no: / 2024

IN THE MATTER OF

Petitioner Respondent

VERSUS

Sanjana Ashok

ON SUBMISSION TO THE REGISTRY OF THE COURT

OF THE HON’BLE COURT

MOST RESPECTFULLY SUBMITTED TO THE HON’BLE

JUDGES OF THE SESSIONS COURT, COUNSEL APPEARING
 ON BEHALF OF RESPONDENT

Memorial for respondent

UNIVERSITY SCHOOL OF LAW

Table Of Contents

List Of Sources

Statement Of Jurisdiction

List Of Abbreviations

Statement Of Facts

Statement Of Issues

Summary of Arguments

Arguments Advanced

Prayer
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LIST OF SOURCES

S.NO STATUES
1 HINDU MARRIAGE ACT, 1955

2. THE LIMITATION ACT, 1963

BOOKS REFERRED
1. Diwan, Dr. Paras (2017) 23rdEdition, “Family Law” Allahabad Law Agency.
2. Prof Kusum, “Family Law” LexisNexis

S.NO LIST OF CASES

1. Adhyatma bhattar alwar v. S Adhyatma Bhattar svri, (2002) 1 SCC 308

2. Harjeet Singh v. Guddi, 1987 WLN UC 225

3. Raja Sundari v. Suresh Kumar, (2014) 2 SCC, 601

4. Savitri Panday v. Premchand Panday (2002) 2 SCC 73

5. Smt. Shimla Devi v. Kiran Kumar, (1994) 3 WLC 519

6. Surendra Kumar v. Kiran Devi, A.I.R. 1997 RAJASTHAN 63

Tejinder Kaur v.Gurmit Singh, 1988 SCR (2) 1098, 1988 SCC (2) 90
7.

8. Vijaylakshmi v. Kannappan, 2010 (2) CTC 654

9. Vimal Kanta v. J.M. Kohli, 176 (2011) DLT 527

MISCELLANEOUS

• https://indiankanoon.org/doc/130314186/

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STATEMENT OF JURISDICTIONS

Parties to the present case are residing & working for as well as the cause of action
arose within the jurisdiction of this Honourable court, therefore this Honourable
court has jurisdiction to decide the case.
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LIST OF ABBREVIATIONS

1. HMA HINDU MARRIAGE ACT 1955

2. V. VERSUS
3. ILA INDIAN LIMITATION ACT
4. SEC SECTION
5. SC SUPREME COURT
6. i.e. THAT IS
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STATEMENT OF FACTS

1. Mr Ashok, a Hindu by religion married Miss Sanjana on 17th November 2011 as per
Hindu rituals. Thereafter they resided in the matrimonial home with the parents of Mr.
Ashok. Mr. Ashok’s mother was an orthodox female and had high belief in mythology
 and in the Hindu God. She had firm belief that to attain Moksha, a man needs to have a
son, therefore she always insisted that Sanjana had to conceive and give this very
privilege to them of being grandparents to a grandson.

2. Miss. Sanjana delivered a baby girl on 9th April 2013 and thereafter differences arose
between them. Ashok’s mother continuously passed insulting remarks upon Sanjana
and her baby girl. She often remarked that is Sanjana does not give their family a boy,
she will ask Ashok to marry another girl. Several times Ashok fought with his own
mother, telling her that he is satisfied with his wife and has no complaints from her.
Sanjana started persuading Ashok to leave the house of his parents and move to a new
house to which Ashok never agreed. He was adamant that he wants t stay with his
family.

3. Finally on 22nd December 2013 Sanjana, frustrated with the constant bickering and
inability of her husband to change residence, decided to leave the matrimonial house
with her daughter and return to her parent’s house.

4. Ashok visited Sanjana’s house several times. However never found her at home. He
could never even visit his daughter because Sanjana was never available. Finally, on 2nd
January 2016, Ashok was frustrated with Sanjana, filed for divorce u/s 13 of the Hindu
Marriage Act alleging desertion by his wife. The summons was issued to Sanjana at the
address shown but the same were returned by some Ms. Asha marked as ‘refused to
accept’. The family court considering it as good service proceeded with the matter.

5. The petition was heard as ex parte and on the basis of evidence adduced by Ashok, the
family court granted divorce to the husband on 16th September, 2016. The copy

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Of the order was sent by Ashok to Sanjana on the address that was provided.

6. On the 25th February 2017, Ashok married Miss Pooja, a Hindu by religion. Pooja conceived Ashok’s child and
was due for delivery on 13th December 2017. Meanwhile, one of Sanjana’s relative discovered the fact of
Ashok’s marriage with Pooja and Mrs Sanjana about the same on 17 April 2017. Accordingly, Mrs Sanjana filed
an application on 3rd May 2017 before the High Court for setting aside the ex parte decree passed by the family
court. She stated that she was unaware of the proceedings as the summons were served on the address on
which she was not residing. She also stated that her parents moved to a new house. Furthermore, she also
contended that she never had the intention to desert Ashok but only wanted to teach his mother a lesson. She
argued that she was frustrated with the constant remarks by Ashok’s mother and hence decided to leave the
matrimonial home but never desired to sever the matrimonial bond.
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SUMMARY OF THE ARGUMENTS

ISSUE 1: WHETHER THERE WAS DESERTION BY THE PETITIONER?

There was desertion on the part of the petitioner because for desertion to take place it must have lasted for at
least 2 years and continue until the filing of the divorce petition. Also, there was no reasonable cause in which
the petitioner left the house and also the petitioner did not maintain any sort of communication with the
respondent.

ISSUE 2: SHOULD THE EX PARTE DECREE BE SET ASIDE?

The exparte decree should not be set aside as per Article 123 of the Indian Limitation Act. As per this section
the appeal period on the exparte decree is 30 days from the date of passing the decree which in this case has
expired and also setting aside of the exparte decree will affect the interest of the 3rd party.

ISSUE 3: WHETHRE THE SECOND MARRIAGE OF THE RESPONDENT SHOULD BE DECLARED VOID?
The second marriage of the respondent should not be declared void as it is a valid marriage ad it was
contracted after 90 days as mentioned under section 28 of the Hindu Marriage Act
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ARGUMENTS ADVANCED

1. WHETHER THERE WAS DESRTION BY THE PETITIONER?

A. The respondent most humbly submits that the marriage was solemnized on 17 – 11 – 2011 according
to Hindu rites and ceremonies.

B. They resided in matrimonial home after getting married but, Mrs Sanjana, the petitioner left her
matrimonial house with her daughter without reasonable cause on 22 – 12 – 2013.

C. As per the facts, Mr Ashok visited Sanjana’s house several times, but could never meet his daughter
and Sanjana as they were never available, from which it is evident that she had an intention to desert
the respondent and it proves (animus deserendi).

D. Living together is the essence of marriage, living apart is its negation when one spouse leaves or
abandons the other without the other’s consent and without a reasonable cause, it constitutes
desertion.

E. Hence, on 2nd January, 2016, i.e. 2 years and 10 days after the petition left her matrimonial home and
failed to have any sort of contact or communication with the respondent, the respondent being
 frustrated with his wife filed for divorce under section 13 of the Hindu Marriage Act1 alleging desertion
by the petitioner.

F. According to Section 13 (1b) of the HMA, a petition may be present by either of the party to a marriage
by a decree of divorce on the ground that the other party. “Has deserted the petitioner for a
continuous period of not less than 2 years immediately preceding the presentation of the petition”.

G. Since the petition for dissolution of marriage by a decree of divorce on the ground of under Section 13
(1b) of the HMA, 1955 was filed after 2 years and 10 days which fulfils the condition that the other
party must have deserted the petition for divorce for a “continuous period of not less two years
immediately preceding the presentation of the petition”, the petitioner is thereafter liable for
desertion

H. In Vimal Kanta V. J.M. Kohli2 A learned judge of the Delhi High Court held that desertion is a matter of
inference to be drawn from the facts and circumstances of each case and that desertion.
1. Hindu Marriage Act 1955
2. 176 (2011) DLT 527

Memorial for Respondent

Commences when the facts of separation and the animus deserendi co-exist. The learned Judge of the Delhi
High Court observed in that case that once the desertion is established there is no obligation on the deserted
spouse to appeal to the deserting spouse to change his or her mind and the circumstances that the deserted
spouse makes no efforts to take steps to effect a reconciliation with the deserting spouse does not debar the
deserted, spouse from obtaining the relief of judicial separation after the end of the statutory period of two
years. It was observed in that case that there was no statement by the wife that they have ever cohabited
together within two years immediately before filing of the petition and that it was clear from the evidence
that the wife was living with her parents in their house against the wishes and without the consent of the
husband.
I. Also, the contentions of the petitioner on filing an appeal on 3rd May 2017 before the High Court, that
she never had the intention to desert her former husband, but only wanted to teach his mother a
lesson and she decided to leave the matrimonial home, but never desired to sever the matrimonial
bond are all baseless and meaningless now because, of she really never intended to desert her
husband, she would have sort at least some way to maintain some kind of communication with her
husband and could have very reasonably explained him the reason for leaving the matrimonial house.
But again, she failed to do so for a long period of 2 years and 10 days and even after which clearly
brings her intentions to light of deserting her husband who indeed several times tried to approach her.
 J. In Savitri Panday v. Premchand Panday3 it was held that “for the offence of desertion so far as the
deserting spouse is concerned: two essential conditions must be there namely -
1. The factum Separation
2. The intention to bring cohabitation permanently to an end (animus deserendi) similarly two elements are
essential so far as the deserted spouse is concerned.
3. The absence of Consent
4. Absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to the form they
necessary intention aforesaid: in our case both the essential conditions for desertion are present.

K. In Adhyatma Bhattar Alwar V. S. Adhyatma Bhattar Svri4 it was held that:

“The clause lays down the rule that desertion to amount to a matrimonial offence must be for a continuous
period of not less than two years immediately proceeding the presentation of the petition. This clause has to
be read with the explanation. The explanation has widened the definition of desertion to include ‘wilful
neglect’ of the petitioning spouse by the respondent. It’s status that to amount to a matrimonial offence must
be without reasonable cause and without the consent or against the wish of the petitioner.

L. Hence, the leaving of the matrimonial home and the non-communication by the petitioner, definitely
accounts desertion and is a valid ground for divorce under Sec.13 (1b) of the HMA,1955.

1(2002) 2 SCC 73
2(2002) 1 SCC 308

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2. SHOULD THE EXPARTE DECREE BE SET ASIDE

A. The respondent respectfully submits that the exparte decree is valid and should not be set aside.

B. According to the facts of the case the respondent visited several times to the petitioner’s house but
could not meet the petitioner and his daughter. Moreover, the divorce was granted after the summon
was served properly. The court considered it as good service.
 C. After considering the situation that the summon was properly served then only then the court had
proceeded with the matter.

D. According to ILA5 article 123 “To set a decree passed exparte or to rehear an appeal decreed or heard
exparte the period of days is 30 days” (counted from the date of decree granted).

E. According to facts, the divorce was granted on 16 – 9 – 2016 the wife filed the petition on 3 – 5 – 2017,
so the 30 days period was over. The divorce was already granted and in the meantime much water has
flown under the bridge (in between the exparte decree and the step taken by the wife to set aside the
exparte decree). In the interregnum, the husband has remarried.

F. The subsequent event that took place in the life of the husband, by which the right of a third party has
intervened. By virtue of the remarriage, now the interest of the second wife has intervened.

G. In the case of Surendra Kumar V. Krian Devi 6, it has been held that when there is a valid remarriage
and when the right of the second wife intervenes, the petition to set aside the exparte decree cannot
be allowed.

H. In Harjeet Singh V. Guddi’s7 case, it was held by this court that when the second valid marriage is
contracted, it is in the interest of justice to dismiss the application for setting aise the exparte decree
for divorce.

I. Again, the same judgement was given in Smt. Shimla Devi V. Kiran Kumar’s8, and it was held that by
contracting a second marriage, the interest of the second wife intervenes.

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J. Article 123 of the ILA is applicable in this case that is only 30 days' time prescribed for filing application to
set aside the ex parte decree, to be counted from the date of decree.
 3. WHETHER THE SECOND MARRIAGE OF THE RESPONDENT CAN BE DECLARED VOID?

A. The respondent most humbly submits that the second marriage is valid and should not be declared void.
B. The respondent had solemnized the marriage after 90 days of appeal as required by sec. 28 of HMA,1955
which states that:

(1) All decrees made by the court in any proceeding under this Act shall, subject to the provisions of sub –
section.
(2) Be appealable as decrees of the court made in the exercise of its original civil jurisdiction, and every such
appeal such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in
exercise of its original civil jurisdiction.
(3) Orders made by the court in any proceeding under this Act under section 25 or section 26 shall, subject to
the provisions of sub – section (3), be appealable if they are not interim orders, and every such appeal shall lie
to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil
jurisdiction.
(4) There shall be no appeal under this section on the subject of costs only.
(5) Every appeal under this section shall be preferred within a span of 90 days from the date of decree or
order.
C. The respondent had married Miss Pooja on 25 – 2 – 2017 after passing 90 days of appeal period mentioned
u/s 28 of HMA, 1955.
D. The exparte order was granted to him on 10 – 9 – 2016 and the copy was also sent to the petitioner. Thus
he has fulfilled his duties and abide to all the conditions mentioned under HMA, 1955 for the valid marriage
under sec 5 and 15 of HMA.
E. He got divorced from the petitioner on 16 – 9 – 2016 and thus he does not have any spouse living at the
time of marriage that is a condition for a valid marriage.
F. Also he married Ms Pooja after the statutory period provided for appeal u/s 28 of HMA,1955 i.e. 25 – 2 –
2017.
G. In case, Tejinder Kaur V. Gurmit Singh9, while the supreme court dealt with the impact of section 15 of the
Act, it is held that the holder of decree of dissolution of marriage passed by the High Court in appeal, entitled
to remarry only after. waiting for 90 days.
H. In Raja Sundari V. Suresh Kumar, it was held that in the absence of appeal, the other party can solemnize
the marriage and attempt to frustrate the appeal right of the other side as appears to have been done in the
instant case. We are of the opinion that a minimum period of 90 days may be prescribed for filing the appeal
against any judgement and decree under the Act and any marriage solemnised during the aforesaid period to
be deemed to be void.
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I. In Vijayalakshmi V. Kannappan10 it was held that if a marriage be dissolved by a decree of divorce and when
there is not right of appeal or if the time for preferring the appeal is over and if the appeal was dismissed it
shall be lawful for either party to marry again.
J. In this case the divorce was granted on 16 – 9 – 2016, and the respondent married for the second time on 25-
2-2017.
K. According to Section 15 of the HMA, 1955, which deals with right to remarry reads as under:
“When a marriage has been dissolved by a decree of divorce
9 1988 SCR (2) 1098, 1988 SCC (2) 90

10 2010 (2) CTC 654

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PRAYER

In the light of the issues raised, arguments advanced and authorities cited, the counsel for the
Respondent humbly prays that the Honourable court be pleased to adjudge, hold and declare:

• That the ex parte decree should not be set aside.

• Declare that the second marriage is not void.

And pass the order in favour of the Respondent.

And for this act of kindness, the counsel for the petitioner shall duty bound forever pray.

Place – Chandigarh, India

Date – 11 April 2024
S/d:

(Counsel for the respondent)

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