SANDEEP.

K
43015101031

IN THE HON’BLE SUPREME COURT

OF

GONDIA

IN THE MATTER OF

Mrs AARTI

[PETITIONER]

Vs.

Mrs SAUNDARYA & Mr SUNDAR

[RESPONDENTS]

IN PARTIAL FULFILMENT OF MOOT COURT PRACTICE

IN 6TH SEMESTER LL.B COURSE OF KARNATAKA STATE LAW UNIVERSITY

MEMORANDUM ON BEHALF OF THE PETITIONER

-DRAWN AND FILED BY THE COUNSEL FOR THE PETITIONER

Memorandum on behalf of the Petitioner Page 2

 TABLE OF CONTENTS

INDEX OF AUTHORITIES.......................................................................................................... 5

BOOKS/COMMENTARIES........................................................................................................... 6

LIST OF ABBREVIATIONS......................................................................................................... 7

LIST OF CASES............................................................................................................................ 8

STATEMENT OF JURISDICTION...............................................................................................9

STATEMENT OF FACTS............................................................................................................ 10

ISSUES FOR CONSIDERATION............................................................................................... 11

SUMMARY OF ARGUMENTS.................................................................................................. 12

ISSUE 1: WHETHER THE PETITIONER HAD LOCUS STANDI TO FILE

THE PRESENT PETITION ?................................................................................................... 13

ISSUE 2: WHETHER SETTING ASIDE OF THE DIVORCE BY THE

HIGH COURT PARTICULARLY IN THE CASE OF THE HUSBAND
MARRYING THE SECOND TIME IS PROPER?.................................................................. 14

ISSUE 3: WHETHER THE MARRIAGE OF THE PETTIONER WILL

SURVIVE. IF NO, WHAT ABOUT THE STATUS OF PETITIONER
IF YES, WHAT ABOUT THE RIGHTS OF FIRST WIFE?..................................................... 15

WRITTEN SUBMISSIONS......................................................................................................... 16

ISSUE 1: WHETHER THE PETITIONER HAD LOCUS STANDI TO FILE

THE PRESENT PETITION ?................................................................................................... 14

ISSUE 2: WHETHER SETTING ASIDE OF THE DIVORCE BY THE

HIGH COURT PARTICULARLY IN THE CASE OF THE HUSBAND
MARRYING THE SECOND TIME IS PROPER?.................................................................. 18

Memorandum on behalf of the Petitioner Page 3

 ISSUE 3: WHETHER THE MARRIAGE OF THE PETTIONER WILL
SURVIVE. IF NO, WHAT ABOUT THE STATUS OF PETITIONER
IF YES, WHAT ABOUT THE RIGHTS OF FIRST WIFE?
.....................................................................................................................................................2
0

PRAYER .................................................................................................................................. 21
Memorandum on behalf of the Petitioner Page 4
 INDEX OF AUTHORITIES

List of Statutes/rules/regulations

 The Constitution of India,1950

 Hindu Marriage Act, 1955.
 The Code of Civil Procedure ,1908.
 The Code of Criminal Procedure, 1973.
 Indian Penal Code, 1860.
 Limitation Act, 1963.
 The Indian Evidence Act, 1872.

Memorandum on behalf of the Petitioner Page 5

 BOOKS/COMMENTARIES

1) Shreya Dave, the Doctrine of Promissory Estoppel, at 5.

2) Jagadish Swarup, Constitution Of India 401 (Modern Law, Allahabad, 2nd edn.,
2006).
3) Neepa Jani, Article 21 of the constitution of India and right to livelihood, 2(2013)
th
4) Avtar Singh, Contract and Specific Relief Act(10 ed.,2008)
th
5) Guenter Treitel, the law of Contract (11 ed.,2003)
6) H.K Saharay, Dutt on Contract t(10ed)
th
7) J.beatson, Anson’s law of Contract(28 ed)
8) P.C Markanda, the law of Contract(2006)

9) Pullock and Mulla, Indian Contract and Specific Relief Act(13th ed.)
10) R.K Bangia, Law of Contract-1(6th ed.,2009)
11) W T Major and Christine Taylor, Law of Contract(9th ed)
12) C.K Takwani, Lectures on Administrative Law(3rd ed)
13) I.P Massey, Administrative law(3rd ed)
th
14) M.P Jain and S.N Jain, Priniciples Of Administrative Law(5 ed.,2007)
th
15) Dr. J.N Pandey, Constitutional Law of India(54 Ed.,2017)
16) Justice G. Yethirajulu, Article 32 And The Remedy Of Compensation, (2004) 7 SCC
(J) 49

Memorandum on behalf of the Petitioner Page 6

  AIR All India Reporter
 U.O.I Union of India
 Art. Article
 HC High Court
 HMA Hindu Marriage Act
 Hon’ble Honorable
 Govt. Government
 RPAD Registered Post with Acknowledgment Due
 vs. Versus
 i.e., That is
 Ors. Others
 Anr. Another
 Sec. Section
 SC Supreme Court
 SCC Supreme Court cases
 Vol. Volume
 i.e. That is
 vs. Versus

Memorandum on behalf of the Petitioner

Page 8
Page 7
 LIST OF CASES

1) Savitri Pandey vs Prem Chandra Pandey on 8 January, 2002 ………………………....15

2) K Kamaraj Nadar vs Kunju Thevar …………………………...………………….……17
3) Rajendra Prasad Yadav vs Prem lata 1997 WLC 505………………………..…………19
4) Harjeet Singh vs Smt. Guddi on 22 January, 1987,High Court of Rajastan….....….......19

5) Sri Rajesh Kumar vs Smt. Pushpa Rani on 16 September, 2016, Patna High Court…...19

6) Smt. Shimla Devi & Anr. v. Kiran Kumar,1994 (3) W.L.C. (Raj.) 519…………….….19

Memorandum on behalf of the Petitioner Page 8

STATEMENT OF JURISDICTION

It is most humbly submitted that the Petitioner has approached this Hon’ble Supreme Court
1
under Article 136 of the Constitution of Gondia for the violation of the Fundamental Rights
guaranteed under Part III, of the Constitution of Gondia by filing Special Leave Petition.
The petitioner most humbly and respectfully submits before the jurisdiction of the present court
and accepts that it has the power and authority to preside over the present case.

1
Article 136 of The Constitution Of India 1950

Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any cause
or matter passed or made by any court or tribunal in the territory of India
(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order passed
or made by any court or tribunal constituted by or under any law relating to the Armed Forces

Memorandum on behalf of the Petitioner Page 9

 STATEMENT OF FACTS

FACTUAL BACKGROUND

1. Mr Sundar and Miss Saundarya married on 15th June 2012

2. Both are Hindu by religion.
3. The cohabited together for 3 years.
4. Sundar applied for divorce alleging conversion of Saundarya to a different religion.
5. Case was filed in the Family Court
6. Court considered,Respondent wife refused to accept summons notice
7. Petitioner was granted exparte divorce decree on 12 Dec 2015.
8. Sundar remarried Miss Aarti on 14 Jan 2017 and lived together.
9. Later, Saundarya filed application for condonation of delay on 5 June 2017.
10. An appeal was also filed before HC of Big Rashtra to set aside the exparte decree.
11. Alleged that, Delay was on account of non awareness of proceedings
12. She contended that she neither converted not stayed in address mentioned in cause title.
13. HC condoned the delay and appeal was admitted.
14. Meanwhile, Sundar brought to notice of HC that he is married to Aarti.
15. He categorically denied all allegations of Saundarya.
16. HC held that Saundarya did not convert to any religion.
17. HC set aside the exparte divorce decree as there exists no ground.
18. Later, Mrs Aarti filed SLP before the SC of Gondia.
19. Saundarya and Sundar are the respondents.
20. She contended that she was not made a party to appeal in HC and her rights are violated.
21. She alleged that the HC judgment is not binding on her.
22. She prayed to set aside the order of the HC.
23. She alleges that she is the lawfully wedded wife of Sundar.
24. Saundarya prayed for dismissal of SLP as her marriage is still intact.
25. Sundar is of the same view as taken by Aarti.
26. SC has admitted the SLP and framed the issues in order to final hearing and judgment.

Memorandum on behalf of the Petitioner Page 10

 ISSUES FOR CONSIDERATION

ISSUE 1: WHETHER THE PETITIONER HAD LOCUS STANDI TO

FILE THE PRESENT PETITION ?......................................................................................... 14

ISSUE 2: WHETHER SETTING ASIDE OF THE DIVORCE BY THE

HIGH COURT PARTICULARLY IN THE CASE OF THE HUSBAND
MARRYING THE SECOND TIME IS PROPER?.................................................................. 14

ISSUE 3: WHETHER THE MARRIAGE OF THE PETTIONER WILL

SURVIVE. IF NO, WHAT ABOUT THE STATUS OF PETITIONER
IF YES, WHAT ABOUT THE RIGHTS OF FIRST WIFE?.................................................... 14

Memorandum on behalf of the Petitioner Page 11

 SUMMARY OF ARGUMENTS

ISSUE 1: WHETHER THE PETITIONER HAD LOCUS STANDI

TO FILE THE PRESENT PETITION?

It is humbly submitted that the Petitioner was not made a party to the appeal and thus an
opportunity of being heard before the HC of Big Rashtra was lost. This is a violation of Article
14 of the Constitution as the Hon’ble HC actions are arbitrary and unreasonable. An opportunity
of being heard provides the person an opportunity to remove any kind of mistake,
misapprehension or misunderstanding if any and it also enables her to prepare her defense.
It is also submitted that the petitioner has a LOCUS STANDI to file the present petition before
the SC of Gondia as she is the legally wedded wife as defined under Section 5 of HMA 1955 and
her rights stand violated.

ISSUE 2: WHETHER SETTING ASIDE OF THE DIVORCE BY THE

HIGH COURT PARTICULARLY IN THE CASE OF THE HUSBAND
MARRYING THE SECOND TIME IS PROPER?

It is humbly submitted that the actions of the Hon’ble HC by setting aside the decree divorce of
the Family Court is not correct as the Respondent has married again after the completion of the
limitation period of 90 days as per Sec 28(4) of HMA amended in 2003.

ISSUE 3: WHETHER THE MARRIAGE OF THE PETTIONER WILL

SURVIVE. IF NO, WHAT ABOUT THE STATUS OF PETITIONER
IF YES, WHAT ABOUT THE RIGHTS OF FIRST WIFE?

It is humbly submitted that the marriage of petitioner will survive, as she is the legally wedded wife
as the respondent no.2 has not committed an offence of bigamy as per section 494 of the IPC. The
respondent no.1 has the right to claim permanent alimony and maintenance as under section 25 of
Hindu Marriage Act or under section 125 of CrPC.

Memorandum on behalf of the Petitioners Page 12

 ARGUMENTS ADVANCED

ISSUE 1: WHETHER THE PETITIONER HAD LOCUS STANDI

TO FILE THE PRESENT PETITION?

1. It is humbly submitted that the right of audi alteram partem is a valuable right recognized
under the Constitution of Gondia, wherein it is held that, the principle of the maxim which
mandates that no one should be condemned unheard, is a part of the rule of natural justice.
The audi alteram partem facet of natural justice is also a requirement of Art.14, for natural
justice is the antithesis of arbitrariness, and Art 14 strikes at the arbitrariness of the State
action in any form , as it permeates the entire fabric of the Rule of Law

2. The right to be heard is a very important constituent of the principle of natural

justice. It not only gives an opportunity to the parties to present their case but
also inculcates the confidence of deliverance of justice. There are cases which are
based on documentary evidences and right to have personal hearing does not
appear to be of significance but still the court has been inclined to grant the right
to hearing to the parties because there is no harm in granting such opportunities.

3. The right to be heard should go unhampered and be effective. In some cases

where a party has appeared before a Court but has been so hampered in the
presentation of the case that it has been held not to have had a hearing.

Article 14 of the Constitution of India provides for equality before the law & equal protection within the territory of India and
prohibits discrimination on grounds of religion, race, caste, sex or place of birth, or any of them.

https://en.wikipedia.org/wiki/Audi_alteram_partem

https://blogs.siliconindia.com/VIMALGOSWAMI/RIGHT_TO_BE_HEARD__AN_IMPORTA
NT_COMPONENT_OF_PRINCIPLE_OF_NATURAL_JUSTICE-bid-5h7Kzmy923324709.html

Memorandum on behalf of the Petitioners Page 13

4.

4. The respondent was duly served notice of summons which the Hon’ble Family Court
considered as GOOD SERVICE (as per Order 5 Rule 17 of The Code of Civil Procedure)
due to the fact that the respondent chose to refuse to accept the summons.

As per Order 5 Rule 17 of The Code of Civil Procedure

Procedure when defendant refuses to accept service, or cannot he found:

Where the defendant or his agent or such other person as aforesaid refuses to sign the
acknowledgement, or where the serving officer, after using all due and reasonable
diligence, cannot find the defendant, [who is absent from his residence at the time when
service is sought to be effected on him at his residence and there is no likelihood of his
being found at the residence within a reasonable time] and there is no agent empowered
to accept service of the summons on his behalf, nor any other person on whom service
can be made, the serving officer shall affix a copy of the summons on the outer door or
some other conspicuous part of the house in which the defendant ordinarily resides or
carries on business or personally works for gain, and shall then return the original to the
Court from which it was issued, with a report endorsed thereon or annexed thereto
stating that he has so affixed the copy, the circumstances under which he did so, and the
name and address of the person(if any) by whom the house was identified and in whose
presence the copy was affixed.

5. The Hon’ble Family Court granted a decree of divorce to the petitioner on 12 Dec 2015.
Copy of the order was sent to the respondent by RPAD. The Petitioner remarried on 14
Jan 2017 to Miss Aarti. She is the legally wedded wife of petitioner as per Section 5 of
the Hindu Marriage Act 1955.

A marriage may be solemnized between any two Hindus, if the following conditions are
fulfilled, namely:-

A) Neither party has a spouse living at the time of the marriage;

https://www.nls.ac.in/lib/bareacts/civil/cpc/cpco5.html

https://www.webindia123.com/law/family_law/hindu_law/marriage.htm
 B) Is incapable of giving a valid consent to it in consequence of unsoundness of mind;
C) 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;
D) has been subject to recurrent attacks of insanity or epilepsy
E) The bridegroom has completed the age of 21 years and the bride the age of 18 years at
the time of marriage;
F) 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
G) The parties are not sapindas (one is a lineal ascendant of the other) of each other,
unless the custom or usage governing each of them permits of a marriage between the
two.

6. The petitioner has not committed any act of Bigamy as defined under section 494 of The
Indian Penal Code as such.

Section 494. Marrying again during lifetime of husband or wife.—Whoever, having a

husband or wife living, marries in any case in which such marriage is void by reason of
its taking place during the life of such husband or wife, shall be punished with
imprisonment of either description for a term which may extend to seven years, and shall
also be liable to fine.

7. Petitioner having waited the stipulated 90 days after the decree of divorce as per Sec
28(4) of HMA amended in 2003.

Savitri Pandey vs Prem Chandra Pandey on 8 January, 2002

The Hon’ble Supreme Court observed that:

we would like to observe that the period of limitation prescribed for filing the appeal

https://indiankanoon.org/doc/508426/

https://indiankanoon.org/doc/325522/
 under Section 28(4) is apparently inadequate which facilitates the frustration of the
marriages by the unscrupulous litigant spouses. In a vast country like ours, the powers
under the Act are generally exercisable by the District Court and the first appeal has to be
filed in the High Court. The distance, the geographical conditions, the financial position
of the parties and the time required for filing a regular appeal, if kept in mind, would
certainly show that the period of 30 days prescribed for filing the appeal is insufficient
and inadequate. In the absence of appeal, the other party can solemnise 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 judgment and decree under the Act and any marriage
solemnised during the aforesaid period be deemed to be void. Appropriate legislation is
required to be made in this regard. We direct the Registry that the copy of this judgment
may be forwarded to the Ministry of Law & Justice for such action as it may deem fit to
take in this behalf.

Thus it can be seen that the Appellant wife was given sufficient reasonable time to file
her appeal against the decree of exparte divorce.

8. Meantime, the respondent the respondent approached the Hon’ble HC on 5 June 2017 for
condonation of delay for filing an appeal against the exparte order of the Family Court,
which the High Court aloowed and set aside the expate decree of the Family Court.

9. Mrs Aarti although the legally wedded wife was not made party in the appeal and thus her
rights stands violated due to the simple fact of NON JOINDER OF PARTY as envisaged
in Order 1 Rule 9 of the CPC. She was the necessary party to the appeal.

The presence of opposing parties is one of the essential requirements of any civil suit. But
all parties are not necessary for the suit to be adjudicated upon. Therefore, necessary and
non-necessary parties have to be distinguished between. ‘Necessary Parties’ are those
parties from whom relief is claimed. ‘Non-necessary Parties’ are those parties who may
be party to the suit, but from whom no relief has been claimed. The presence of necessary
parties is obviously required for the court to adjudicate and pass an effective and
complete decree granting relief to the plaintiff

http://www.legalserviceindia.com/articles/cpc.htm
 Non-joinder’ can be defined as an omission to join some person as a party to a suit,
whether as plaintiff or as defendant, who ought to have been joined according to the law.
In other words, non-joinder means an omission to join a party to the suit. The Code does
not define non-joinder, but lays down "No suit shall be defeated by reason of … non-
joinder of parties, and the court may in every suit deal with the matter in controversy so
far as regards the rights and interests of the parties actually before it. " The proviso to this
Rule however excludes its applicability to cases of non-joinder of necessary parties.
‘Necessary Parties’ are those parties in the absence of whom no effective decree can be
passed by the court. For instance, in a suit filed against a partnership firm, all partners
would be necessary parties

In K Kamaraja Nadar v. Kunju Thevar, the question of who are the necessary parties
to an election petition was decided upon. An election petition can call into question any
election, challenging the fairness of the election, and may be presented by any candidate
or elector. A petitioner may further pray for a declaration that he or any other candidate
has been duly elected. In such a situation, he must implead all contesting candidates other
than the petitioner, and also anyone against whom he has alleged use of unfair practices.
Such contesting candidates will have to be joined as respondents to such a petition. Any
failure to do so will amount to non-joinder of necessary parties. This defect cannot be
cured by way of an amendment of the petition, since the Election Tribunal does not enjoy
the authority to amend the petition after it has been presented.

10. Thus it can seen that Mrs Aarti, has her rights violated, grave injustice is caused to her
even though she is the legally wedded wife of Sundar she was not made party to the
appeal in the Hon’ble HC and thus she has LOCUS STANDI to present this petition
before the Hon’ble SC.

Special Leave Petitions in India (SLP) holds a prime place in the Judiciary of India, and
has been provided as a "residual power" in the hands of Supreme Court of India to be
exercised only in cases when any substantial question of law is involved, or gross

http://www.itatonline.org/articles_new/special-leave-petitions-the-complete-law/

https://en.wikipedia.org/wiki/Special_Leave_Petitions_in_India#cite_note-6
 injustice has been done. It provides the aggrieved party a special permission to be heard
in Apex court in appeal against any judgment or order of any Court/tribunal in the
territory of India (except military tribunal and court martial) [1]

The Constitution of India under Article 136 vests the Supreme Court of India, the apex
court of the country, with a special power to grant special leave, to appeal against any
judgment or order or decree in any matter or cause, passed or made by any Court/tribunal
in the territory of India. It is to be used in case any substantial constitutional question of
law is involved, or gross injustice has been done.
Article 136 of The Constitution Of India 1950

Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal
from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or
tribunal in the territory of India
(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order passed or made by any court or
tribunal constituted by or under any law relating to the Armed Forces

It is discretionary power vested in the Supreme Court of India and the court may in its
discretion refuse to grant leave to appeal. The aggrieved party cannot claim special leave
to appeal under Article 136 as a right, but it is privilege vested in the Supreme Court of
India to grant leave to appeal or not.

ISSUE 2: WHETHER SETTING ASIDE OF THE DIVORCE BY THE

HIGH COURT PARTICULARLY IN THE CASE OF THE HUSBAND
MARRYING THE SECOND TIME IS PROPER?

11. This counsel would like to state that setting aside of divorce decree by the Hon’ble High
Court was false and blatantly untenable particularly considering the fact the husband has
married again after the completion of 90 days of cool off period as per section 28(4) of
HMA 1955 and also he did so as per provisions in Section 15 of the HMA..

https://www.shareyouressays.com/knowledge/legal-provisions-of-section-15-of-the-hindu-marriage-act-
1955/117834
In Rajendra Prasad Yadav vs Prem Lata on 1 August, 1996 (3) WLC 505, and
the Rajastan High Court observed that
Under such circumstances, second marriage of the petitioner with Smt. Rajni Yadav is
not: void. The petitioner has got two children with the said wedlock. Under such
circumstances, I have to seen whether it is proper to set-aside the ex-parte decree of
divorce passed by learned District Judge. This question was decided by this Court in Smt.
Shimla Devi's case (supra). This Court held that service of the summons of the
application for divorce on the defendant was not sufficient, still the Court refused to set-
aside the ex-parte-decree on the ground that during this period the husband solemnised
second marriage. This Court directed that the wife can move an application under Section
25 of the Hindu Marriage Act for permanent alimony and maintenance.

Harjeet Singh vs Smt. Guddi on 22 January, 1987,High Court of Rajastan observed that

Considering all the aspects as discussed above, I am of the opinion that the order of the
learned District Judge cannot be maintained. The service of the notice of divorce petition
of Mst. Guddi was a sufficient service, the service was effected according to Order 5,
Rule 17 and there is no irregularity or illegality in this service. Mst. Guddi has failed to
satisfy that she had no knowledge about this notice.!*he ex parte decree passed against
her was correctly passed and the learned District Judge has erroneoulsly accepted the
application under Order 9, Rule 13, CPC.
As a result, the revision petition is accepted. The order of the learned District Judge dt. 1-
10-1986 is set aside and the divorce decree passed by the trial Court is maintained. No
order as to costs.
Sri Rajesh Kumar vs Smt. Pushpa Rani on 16 September, 2016, Patna High Court
In Smt. Shimla Devi & Anr. v. Kiran Kumar, re-ported in 1994 (3) W.L.C. (Raj.) 519

https://indiankanoon.org/doc/101526/

https://indiankanoon.org/doc/48521326/

https://indiankanoon.org/doc/67735/
 ISSUE 3: WHETHER THE MARRIAGE OF THE PETTIONER WILL
SURVIVE. IF NO, WHAT ABOUT THE STATUS OF PETITIONER
IF YES, WHAT ABOUT THE RIGHTS OF FIRST WIFE?

12. The marriage of the petitioner will survive and continue to do so in view of the facts and
case citations presented in the preceding paragraphs. This counsel would reiterate that the
petitioner is the legally wedded wife of the respondent no. 2 herein. She married the
respondent no. 2 after a exparte divorce decree was granted by the Hon’ble Family Court.
The respondent no.2 too didn’t commit any act of bigamy as under section 494 of IPC
nor contravened section 15 of HMA.

13. In view of the present circumstance, the rights of the 1 st respondent herein as the wife of
the 2nd respondent would stand extinguished. Her rights survives only to the extent of
maintenance and permanent alimony as envisaged under section 125 of CrPC or section
25 of the HMA.

https://indiankanoon.org/doc/1056396/
https://indiankanoon.org/doc/95286/
 PRAYER

Wherefore, in the light of the facts stated, issues raised, arguments advanced and authorities
cited, it is most humbly prayed before this Hon’ble Supreme Court, that it may graciously be
pleased to-

1. Set aside the order of Hon’ble HC.

2. Confirm the order and decree of the Hon’ble Family Court.
3. Declare the petitioner and respondent no. 2 as the legally wedded husband and wife.
4. Impose costs on the respondent no.1.
5. Any other appropriate order that this Hon’ble Court deems fit and proper

Sd/-
Counsel for the Petitioner

Memorandum on behalf of the Petitioner Page 21