SCHOOL OF LEGAL STUDIES AND GOVERNANCE CAREER POINT UNIVERSITY

1ST NATIONAL MOOT COURT COMPETITION, 2019

IN THE DISTRICT, HAMIRPUR

Memorial presented on behalf of defendant

IN THE MATTER BETWEEN

Shabana Appellant

v.

Mukesh Respondent

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TABLE OF CONTENTS

S. NO. TOPIC PAGE NO.

1 List of Abbreviations

2 Index of Authorities

• Books

• Judicial Decisions

• Statutes

3 Statement of Jurisdiction

4 Statement of Facts

5 Statement of Issues

6 Summary of Arguments

7 Arguments Advanced

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ISSUE 1: Whether the marriage of Shabana and Mukesh is

valid as per the provisions of The Special Marriage Act,
1954?

ISSUE 2: Whether non-contest by the wife of divorce petition

filed by the husband in a Foreign Court imply that she had
conceded to the jurisdiction of Foreign Court?

ISSUE 3: Whether the principle of Res-Judicata under

Section 11 of Civil Procedure Code, 1908 is applicable to the
proceedings being initiated in District Court, Hamirpur?

ISSUE 4: Whether relationship of Mukesh and Emile is legal?

ISSUE 5: Whether Shabana is entitled to restitution of

conjugal rights under The Special Marriage Act, 1954?

8 Prayer for relief

9 Bibliography

LIST OF ABBREVIATIONS

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S. NO. Abbreviation or symbol Meaning

1. & And
2. AIR All India Report
3. Anr Another
4. Art Article
5. CAL Calcutta
6. Co. Company
7. Del Delhi
8. Ed Edition
9. Eg Example

10. Gov Government

11. Hon’ble Honorable
12. i.e That is
13. ICCPR International Covenant on
Civil and Political Rights

14. IPC Indian Penal Code

15. IT Information Technology
15. Kar Karnataka
16. Ltd Limited
17. Mr Mister
18. Ms Miss
19. n. Note
20. No. Number
21. Ors Others
21. Pg Page

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22. Pvt Private

23. R Respondent
24. Raj Rajasthan
25. SC Supreme Court
26.. SCC Supreme Court Case
27. St state
28. UGC University Grants
Commission

29. UP Uttar Pradesh

30. v. Versus
31. Vol Volume

STATEMENT OF FACTS

Shabana and Mukesh (a Marine Engineer in Indian Navy), both resident of Hamirpur, belonging to
Muslim and Hindu community respectively, were good friends since high school. After Mukesh got
selected in Indian Navy as marine engineer, despite of objections from the families of both of them, they
decided to marry each other. Finally, they got married in 2011 according to Hindu ceremonies. The
couple got their marriage registered as per the provisions of The Special Marriage Act, 1954 and in effect
a marriage certificate was issued by the authorities. Families of Mukesh and Shabana gradually accepted

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this relationship. Out of this wedlock two children were born in the year 2012 and 2016 respectively.
Shabana was a disciple of Peer wale Baba of Sujanpur since her childhood and she had unflinching, blind
faith on Baba. Even after marriage she continued to visit the Dargah at Sujanpur. Mukesh was not happy
with this practice because he had heard some rumors that the Baba had an illicit relationship with his
disciples.

In January 2013, after taking voluntary retirement from Indian Navy, Mukesh went to France for higher
studies, Shabana refused to visit foreign nation for one year, on the advice of Baba. Mukesh left for
France alone. Then in April 2015, Mukesh called his wife to join him in France along with their first
child. In January 2016, their second child was born in France. In February 2016, he came back to
Hamirpur along with his wife and two kids.

In March 2016, Mukesh told his family that he has to clear some institutional formalities at France and he
will return after six months. After moving to France in March 2016, Mukesh got opportunity to work
with leading university and he stayed in France. After September 2016 he severed all his contacts with
Shabana. In France, he had developed an affair with a lady named Emile. In January 2017, Shabana wrote
a letter to Mukesh expressing her willingness to join Mukesh in France. She also explained that Baba has
advised her and Mukesh to live together under one roof otherwise Peer will curse them. Mukesh in reply
wrote to Shabana that she should not come to France, as he was interested in getting their marriage
dissolved. In December 2017 he got the citizenship of France.

In April 2018, he filed a petition for divorce in trial court of France on the ground that his marriage has
irretrievably broken down. Shabana could not contest these proceedings, she is having no means to go to
France. Parents of Shabana visited her mother-in-law and asked them to talk to their son. Mother in law
of Shabana told her parents that in Muslim family even four wives are allowed. Father-in-law of Shabana
tried to make Mukesh understand about Hindu culture but he refused to continue the marriage.
Meanwhile on July 30, 2018, the trial court of France granted a divorce decree in favor of Mukesh.
Further, the court ordered that the husband would pay to the wife and children an amount of rs.35000 per
month for their maintenance.

After the decree of trial court of France, Mukesh and Emile entered in a civil solidarity pact in August 03,
2018. Mukesh didn’t disclose the fact of ex-parte decree of divorce and his entering into a relationship
with Emile to his parents and Shabana. Mukesh continued to pay the maintenance amount to Shabana
through crediting the amount in her bank account in months of July, August and September 2018.

After paying maintenance for three months Mukesh failed to pay maintenance to wife and children.
Meanwhile Shabana came to know about ex-parte decree of divorce. Shabana approached the legal aid
cell, Hamirpur. Cell helped Shabana through a letter to the Trial Court of France that she be provided
legal aid. Thereafter, proceedings were initiated and warrants of arrest were issued against Mukesh. She
further said that the ex parte decree of divorce obtained by the husband was not binding on her and was

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illegal and that she continues to be the wife of Mukesh. 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 the 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.

In December 2018, Shabana filed a petition under Section 22 of The Special Marriage Act, 1954, for
Restitution of Conjugal Rights in the District Court, Hamirpur. Mukesh appeared in the Court and filed
an application for dismissal of petition. He referred to the decree of divorce granted by the Trial Court of
France and said that despite of notice, Shabana did not contest the same and by not raising any objection
she is deemed to have accepted the jurisdiction of the Foreign Court in trying the petition and thus
making the decree nisi-absolute by the Foreign Court. Further, by accepting the maintenance, Shabana
again in effect accepted the judgment of the foreign Court and is thus estopped from filing the present
petition (Under Section 11 read with Section 151 of Civil Procedure Code, 1908).

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ISSUES RAISED

ISSUE ONE: Whether the marriage of Shabana and Mukesh is valid as per the provisions of The
Special Marriage Act, 1954?

ISSUE TWO: Whether non-contest by the wife of divorce petition filed by the husband in a
Foreign Court imply that she had conceded to the jurisdiction of Foreign Court?

ISSUE THREE: Whether the principle of Res-Judicata under Section 11 of Civil Procedure Code,
1908 is applicable to the proceedings being initiated in District Court, Hamirpur?

ISSUE FOUR: Whether relationship of Mukesh and Emile is legal?

ISSUE FIVE: Whether Shabana is entitled to restitution of conjugal rights under The Special
Marriage Act, 1954?

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ISSUE ONE: WHETHER THE MARRIAGE OF SHABANA AND MUKESH IS VALID AS PER
THE PROVISIONS OF THE SPECIAL MARRIAGE ACT, 1954?

YES, the marriage of Shabana and Mukesh is valid as per the provisions of the special marriage act,
1954. As the couple got their marriage registered as per the provisions of special marriage act, 1954 and
in effect of the solemnization of marriage, a marriage certificate was also issued by the authorities.

SECTION 13 OF SPECIAL MARRIAGE ACT, 1954:

Certificate of marriage.
(1) When the marriage has been solemnized, the Marriage Officer shall enter a certificate thereof in the
form specified in the Fourth Schedule in a book to be kept by him for that purpose and to be called the
Marriage Certificate Book and such certificate shall be signed by the parties to the marriage and the three
witnesses.
(2) On a certificate being entered in the Marriage Certificate Book by the Marriage Officer, the
Certificate shall be deemed to be conclusive evidence of the fact that a marriage under this Act has been
solemnized and that all formalities respecting the signatures of witnesses have been complied with.

At least one of the parties to the marriage must have been residing within the jurisdiction of the marriage
officers district for a period of not less than 30 days preceding the date of the notice. Where none of the
parties resided within the territorial jurisdiction of the marriage officer who gave the certificate of the
marriage, the marriage between their parties was void.

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ISSUE TWO: WHETHER NON-CONTEST BY THE WIFE OF DIVORCE PETITION FILED

BY THE HUSBAND IN A FOREIGN COURT IMPLY THAT SHE HAD CONCEDED TO THE
JURISDICTION OF FOREIGN COURT?

Yes, the non-contest by wife of the divorce petition filed by the husband in a foreign court implied that
she has conceded to the jurisdiction of foreign court.

As, when petition of divorce was filed by Mukesh in trial court of France Shabana was notified about the
trail of divorce but not action was taken by her and an the ex-parte decree of divorce was granted in favor
of Mukesh. Even the Shabana also accepted the maintenance amount her bank account in the months of
July, August, September 2018 which ultimately shows the consent of Shabana in decree of divorce.

In Dr. Malathi case, High Court came to the conclusion that husband had made efforts and behavior of
the wife established that she deliberately stay away from the husband.1

1
Dr. Malathi Ravi v. Dr. B.V. Ravi ,1947

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ISSUE THREE: WHETHER THE PRINCIPLE OF RES-JUDICATA UNDER SECTION 11 OF

CIVIL PROCEDURE CODE, 1908 IS APPLICABLE TO THE PROCEEDINGS BEING
INITIATED IN DISTRICT COURT, HAMIRPUR?

Res-judicata is a Latin maxim stands for the “thing has been judged”. No Court shall try any suit or issue
in which the matter directly and substantially in issue has been directly and substantially in issue in a
former suit between the same parties, or between parties under whom they or any of them claim,
litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such
issue has been subsequently raised, and has been heard and finally decided by such Court.

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ISSUE FOUR: WHETHER RELATIONSHIP OF MUKESH AND EMILE IS LEGAL?

Yes, relationship of Mukesh and Emile is legal because after the trail court of France grant divorce decree
in favor of Mukesh, He entered civil solidarity pact with Emile on 3rd August 2018.2

2
In France, a civil solidarity pact, commonly known as a PACS, is a contractual form of civil union between two adults for
organizing their joint life. It brings rights and responsibilities, but less so than marriage.

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ISSUE FIVE: WHETHER SHABANA IS ENTITLED TO RESTITUTION OF CONJUGAL

RIGHTS UNDER THE SPECIAL MARRIAGE ACT, 1954?

No, Shabana is not entitled to for restitution of conjugal rights under Section 22 of Special Marriage Act
1954. Here, husband cannot be taken as having deserted his wife without reasonable cause because his
work in life compels him to live away from her.3

SECTION 22 OF SPECIAL MARRIAGE ACT 1954:

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.

4
[Explanation. -- Where a question arises whether there has been reasonable excuse for withdrawal from
the society, the burden of providing reasonable excuse shall be on the person who has withdrawn from
the society.]
As in Jan 2017, Shabana expressed her willingness to join Mukesh in France and Mukesh merely replied
to Shabana that she should not come to France as he was interested in getting their marriage dissolved.
In the April 2018, there was no objection raised by Shabana in the result of which Mukesh filed petition
for divorce on the ground irretrievable breakdown and Shabana did not contest the same and by not
raising any objection she is deemed too has accepted the jurisdiction of the foreign court. In trying the
petition and thus making the decree nisi absolute by the foreign court.

3
G v. G (1930) t 72
4
Added by s. 23, ibid.

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ISSUES IN ADVANCE

ISSUE ONE: WHETHER THE GROUND GIVEN BY MUKESH IN THE DECREE OF

DIVORCE IS JUSTIFIABLE OR NOT.

Yes, the ground given by Mukesh in the decree of divorce is justifiable. The opportunity to grant divorce
on this ground is available only to Supreme Court. Under Article 142 of Indian Constitution goes to
Supreme Court virtual license to intervene in any matter whatsoever. It provides that Supreme Court in
the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing
complete justice in any case. It was observed in gosh case that, there is no emotion of feelings left
between the parties so, there is no reason to continue and better to grant divorce.5

ISSUE TWO: WHETHER SHABANA IS ENTITLED FOR DIVORCE ON THE GROUND OF

CRUELTY.

No, Shabana is entitled for divorce on ground of cruelty. the legal conception of cruelty is generally
described as conduct of such character as to have caused danger to life, limb or health (bodily or mental)
or as to give rise to a reasonable apprehension of such danger.6

ISSUE THREE: WHETHER THE FAILING OF MUKESH TO PAY MAINTENANCE TO HIS

WIFE GIVE RISE TO ANY KIND OF LIABILITY.

Yes, in Bhagwan Dutt v. Kamla Devi7 case, it is not an absolute right of a neglected wife to get
maintenance, nor it is an absolute liability of the husband to support her in all circumstances.

5
Samar Gosh v. Jaya Gosh AIR (2007)4 SCC 511.
6
Russell v. Russell
7
Bhagwan Dutt v. Kamla Devi, (1975) 2 SCC 386

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PRAYER

Wherefore, in the light of facts presented, issues raised, arguments advanced, and authorities cited, the
counsels on behalf of the defendant humbly pray before this Hon’ble court that it may be pleased to
adjudge and declare that the petition should be dismissed.

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